STILE v. HOLLINGSWORTH et al, No. 1:2017cv02693 - Document 4 (D.N.J. 2017)
Court Description: OPINION. Signed by Judge Renee Marie Bumb on 10/23/2017. (tf, n.m.)
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STILE v. HOLLINGSWORTH et al Doc. 4 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE JAMES T. STILE, Civ. No. 17-2693 (RMB) Plaintiff, v. OPINION UNITED STATES OF AMERICA, et al., Defendants. BUMB, District Judge Plaintiff James T. Stile seeks to bring a civil rights complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) against the United States of America, past and present wardens of FCI Fort Dix, FCI Fort Dix employee Brian Womack, and Dr. Ravi Sood, alleging that the conditions of confinement at FCI Fort Dix and the inadequate medical care provided to him violate the Eighth Amendment. proceed financial (Compl., ECF No. 1.) in forma pauperis eligibility to He has filed an application to (“IFP”), proceed which without establishes prepayment of his fees. (IFP App., ECF No. 1-1.) 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) require courts to review a prisoner’s complaint in a civil action and sua sponte Dockets.Justia.com dismiss any claims that are (1) frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant who is immune from such relief. For the reasons discussed below, the Court grants the IFP application, dismisses with prejudice the Bivens claims against the United States, Brian Womack and Ravi Sood in their official capacities; dismisses the Eighth Amendment failure to protect and Eighth Amendment inadequate medical care claims without prejudice; and permits the Eighth Amendment conditions of confinement claims to proceed, subject to briefing by the parties of the effect of Ziglar v. Abbasi, 137 S.Ct. 1843 (2017) on the Bivens remedy. I. Sua Sponte Dismissal Courts must liberally construe pleadings that are filed pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). however inartfully standards than pleaded, formal must pleadings be se pleadings are charged held drafted (internal quotation marks omitted). pro Thus, “a pro se complaint, to by ‘less stringent lawyers.’” Id. “Court personnel reviewing with the responsibility of deciphering why the submission was filed, what the litigant is seeking, and what claims she may be making.” See Higgs v. Atty. Gen. of the U.S., 655 F.3d 333, 339-40 (3d Cir. 2011) (quoting Jonathan D. Rosenbloom, Exploring Methods to Improve Management 2 and Fairness in Pro Se Cases: A Study of the Pro Se Docket in the Southern District of New York, 30 Fordham Urb. L.J. 305, 308 (2002)). Under 28 U.S.C. § 1915(e)(2)(B), district courts must review complaints filed by persons proceeding in forma pauperis in civil actions, and dismiss any claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(a) also requires an identical screening for “a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Civ. P. 8(a)(2). Fed. R. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a Ashcroft claim v. to Iqbal, relief 556 that U.S. is 662, plausible 678 (2009) on its (quoting Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). has facial plausibility when the plaintiff face.’” pleads Bell “A claim factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (quoting Twombly, 550 U.S. at 556.) 3 Id. “[A] court must accept contained in a complaint[.]” as true Id. all of the allegations Legal conclusions, together with threadbare recitals of the elements of a cause of action, do not suffice to considering a identifying pleadings state motion to a claim. dismiss that, Id. can because Thus, choose they are “a to no court begin more conclusions, are not entitled to the assumption of truth.” at 679. by than Id. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. If a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice, but must permit the amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002). II. DISCUSSSION A. The United States as a Defendant Plaintiff names the United States of America as a defendant in this Bivens Action, alleging his conditions of confinement at FCI Fort Dix violate the Eighth Amendment, and that he received inadequate medical care in violation of the Eighth Amendment. Plaintiff also sues two federal employees, Brian Womack and Dr. Ravi Sood, in their official capacities. “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994) (citations omitted). 4 Similarly, federal officials suit. sued in their official capacities are immune from See Hines v. Irvington Counseling Center, 933 F.Supp. 382, 388 (D.N.J. Jan. 23, 1996) (dismissing suit against federal agency employees Graham, 473 in U.S. their 159, official 166 (1985) capacities); (a suit Kentucky against a v. federal officer in his official capacity is actually a suit against the United States). Plaintiff’s Bivens claims against the United States, and against Brian Womack and Dr. Ravi Sood in their official capacities, are dismissed with prejudice because they are immune from Bivens liability. The United States is a proper defendant to an FTCA claim based on negligent acts of federal employees, but there is a jurisdictional prerequisite that a plaintiff must first present the claim to the appropriate agency in writing, and request a sum certain for damages. Hoffenberg v. U.S., 504 F. App’x 81, 83 (3d Cir. 2012) (citing 28 U.S.C. § 2675(a); Deutsch v. United States, intended 67 to complaint, F.3d 1080, bring an 1091 FTCA establishing (3d Cir. claim, that he 1995)). he must met If file the Plaintiff an amended jurisdictional prerequisites. B. Ziglar v. Abbasi On June 19, 2017, the U.S. Supreme Court held that when a party seeks to assert an implied 5 cause of action under the Constitution, courts must not extend Bivens to a new context1 if there are “special factors counseling hesitation in the absence of affirmative action by Congress.” 1843, 1857 (2017) (citation Ziglar v. Abbasi, 137 S.Ct. omitted). “If there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, courts must refrain from creating the remedy.” Id. at 1858. An alternative remedial structure may also limit the Judiciary's power to infer a new Bivens cause of action. Id. First, courts must determine whether a claim arises in a new Bivens context, and the context is new if the case is different in a meaningful way from the previous Bivens cases decided by the Supreme Court. Id. at 1859. Meaningful differences may include, the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance [for the official conduct]; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential 1 There are only three instances where the Supreme Court has found an implied cause of action for a Constitutional violation by agents of the Federal Government: Bivens, 403 U.S. 388 (Fourth Amendment unlawful search and seizure); Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment gender discrimination); and Carlson v. Green, 446 U.S. 14 (1980)(Eighth Amendment claim of inadequate medical care in prison). 6 special factors that previous Bivens cases did not consider. Id. at 1860. Second, courts must conduct the special factors analysis to determine whether Congress, not the courts, whether a damages action should be allowed. should decide Id. at 1857. For example, a Bivens action is not a proper vehicle for altering high-level executive policy. Id. at 1860. Third, courts must consider whether there were other alternative forms of judicial relief available, including injunctions and habeas petitions. Id. at 1849; see also Vanderklok v. United States, 868 F.3d 189, 200 (3d Cir. 2017) However,“[d]isposing constitutional (discussing of question, a Bivens while analysis claim assuming under by the Bivens remedy—is appropriate in many cases.” Ziglar). resolving existence the of a Hernandez v. Mesa, 137 S.Ct. 2003, 2007 (2017). C. Eighth Amendment Conditions of Confinement Claim The conditions subject to scrutiny under under which the a prisoner Eighth is Amendment. confined Farmer are v. Brennan, 511 U.S. 825, 832 (1994) (citing Helling v. McKinney, 509 U.S. 25, 31 (1993)). “[P]rison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must “take reasonable measures to guarantee the safety 7 of the inmates.” Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526–527 (1984)). [A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id. at 837. “[E]xtreme deprivations are conditions-of-confinement claim.” required to make out a Hudson v. McMillian, 503 U.S. 1, 8 (1992). “[O]nly those deprivations denying ‘the minimal civilized measure of life's necessities’ are sufficiently grave to form the basis of an Eighth Amendment violation.” Id. at 9 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (citation omitted). “Conditions must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment.” Rhodes, 452 U.S. at 347. The first aspect of judicial decisionmaking in this area is scrutiny of the actual conditions under challenge. It is important to recognize that various deficiencies in prison conditions “must be considered together.” Holt v. Sarver, 309 F.Supp.[362,] 373 [E.D. Ark. 1970] The individual conditions “exist in combination; each 8 affects the other; and taken together they [may] have a cumulative impact on the inmates.” Ibid. Thus, a court considering an Eighth Amendment challenge to conditions of confinement must examine the totality of the circumstances. Even if no single condition of confinement would be unconstitutional in itself, “exposure to the cumulative effect of prison conditions may subject inmates to cruel and unusual punishment.” Laaman v. Helgemoe, 437 F.Supp. 269, 322–323 (NH 1977). Rhodes, 452 U.S. at 362-63; Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996) (finding district court erred by failing to consider conditions of confinement as a whole.) In his complaint, Plaintiff alleges he has been housed for two years in a twelve-man room with only 43 square feet of space for each inmate, and the overcrowded. (Compl., alleges overcrowded the confrontations between ECF common No. 1, spaces Ground conditions inmates and the are Three.) result spreading in of similarly Plaintiff physical disease. (Id.) Plaintiff also complains of daily exposure to asbestos and mastic glue since June 2015 (Ground One); three day exposure to friable asbestos during a demolition job in the rear of the law library in September 2016 (id.); constant exposure to black mold in Building 5811; contaminated drinking water as evidenced by sludge and sediment in the water pipes, and as evidenced by a March 2017 news story about contamination of the water supply at 9 Joint Base McGuire-Dix-Lakehurst (Ground Four); inadequate ventilation because the window size was reduced and air handlers are used only in the summer, causing exposure to jet engine fumes where the housing unit is in close proximity to an active runway for take-offs and landings of military planes; and frequent exposure to diesel generator fumes when FCI Fort Dix regularly suffers power outages (Ground Five); unsanitary conditions including dripping of toilet drain pipes and shower drain pipes, overflowing (unnumbered); lack (unnumbered); of and garbage available excess cans sanitizer humidity attracting for causing the bugs telephones transmission of bacteria and viruses (unnumbered). The injuries Plaintiff alleges to have suffered from these conditions poisoning, include: with potential symptoms which lung may damage not from appear for asbestos years; exacerbation of COPD and emphysema which causes him to use an inhaler more than he otherwise would; psychological distress from exposure to dangerous substances; cold, flu and E Coli infections; and fear of future development of cancer based on contaminated water. (Compl., ECF No. 1.) Plaintiff alleges Warden Jordan Hollingsworth and Warden David Ortiz were aware of but failed to do anything about these conditions for the period from June 2015 to the present. (Compl., ECF No. 1, ¶¶2, 3 and pp. 22-23.) 10 When “‘the incarceration health cumulative the well-being and threatens impact of of physical, the the conditions mental, inmates and and/or of emotional creates a probability of recidivism and future incarceration,’ the court must conclude that the conditions violate the Constitution.” Rhodes, 452 U.S. at 364 (quoting Laaman v. Helgemoe, 437 F.Supp. 269, 323 (D.N.H. 1977)). Plaintiff has sufficiently pled that the combination of his conditions of confinement exacerbated his COPD and emphysema, caused the spread of illness, has the potential to cause serious damage to his future health, and caused him emotional distress about his health. Although the Court will allow the conditions of confinement claim to proceed 1915(e)(2)(B); an past screening Eighth pursuant Amendment to conditions 28 of U.S.C. § confinement claim is a new Bivens claim, subject to the analysis set forth in Ziglar. Defendants may choose to file a motion to dismiss in lieu of an answer if they wish to assert that this Court should not imply a alternative interests Bivens process at stake cause of capable or action of that because protecting there are there the exists an constitutional factors counseling hesitation in implying a cause of action. D. Eighth Amendment Inadequate Medical Care Claims Plaintiff brings individual capacity Bivens claim against his primary care physician at FCI Fort Dix, Dr. Ravi Sood, for 11 inadequate medical care in violation of the Eighth Amendment. (Compl., ECF No. 1 at 20.) The Court notes this is not a new Bivens context under Ziglar. The Supreme Court has recognized an for implied cause of action Eighth Amendment inadequate medical care claims against a federal actor who is personally involved in the deprivation. Carlson v. Green, 446 U.S. 14 (1980). Plaintiff alleges the following facts: (1) Dr. Sood failed to prescribe antibiotics to Plaintiff to treat E. Coli for more than a week after a urologist ordered the medication for Plaintiff; (2) Dr. Sood failed to review Plaintiff’s medical records to determine the cause of the bacterial infections Plaintiff suffered for a year or longer; (3) Dr. Sood failed to prescribe antibiotics to Plaintiff for two months while Dr. Sood had laboratory records indicating Plaintiff had E Coli; (4) Dr. Sood did not properly treat Plaintiff’s longstanding symptoms of constant diarrhea and urinary infections, and told Plaintiff to drink more water, but the water is contaminated; (5) Dr. Sood failed to Plaintiff’s order a symptoms tract sensation. bladder of ultrasound fever, diarrhea, test and (Compl, ECF No. 1 at 20.) to burning urinary Plaintiff also alleges: Twice, the Plaintiff has submitted to a urine test and was not apprised of the positive results of bacterial infection for 12 diagnose longer than a full month after the test results were in possession of the Defendants, then the Plaintiff was not dispensed antibiotics for as long as a week thereafter, all of which contributed to the unnecessary suffering both physically and psychologically of the Plaintiff. (Id. at 19.) To state an inadequate medical care claim under the Eighth Amendment’s proscription against cruel and unusual punishment, an inmate must allege facts showing the defendant’s conduct constituted “unnecessary and wanton infliction of pain” or that the defendant serious was medical deliberately needs. Estelle indifferent v. Gamble, to the 429 U.S. inmate’s 97, 104 (1976). “A medical need is “serious,” in satisfaction of the second prong of the Estelle test, if it is “one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.” Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J.1979), aff'd, 649 F.2d 860 (3d Cir. 1981)). Denial of or delay in treatment that causes unnecessary and wanton infliction of pain may also constitute a serious medical need. Id. (citing Estelle, 429 U.S. at 103). “[W]here denial or delay causes an inmate to suffer a life-long handicap or permanent loss, the medical need is considered serious.” Id. 13 (citations omitted); Andrews v. Camden County, 95 F.Supp.2d 217, 227 (D.N.J. 2000) (same); Price v. Corr. Med. F.Supp.2d 740, 745 (D. Del. 2007) (same). Serv., 493 An allegation of medical malpractice or simple negligence does not rise to the level of a constitutional violation. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004). Most of Plaintiff’s allegations concerning his medical care amount to disagreement with the treatment he received from Dr. Sood. For example, the failure to review Plaintiff’s medical records to look for a cause of the frequent bacterial infections Plaintiff suffered is a disagreement with how Dr. Sood evaluated and treated Plaintiff’s bacterial infections. The failure to order a bladder ultrasound is also disagreement with the medical evaluation provided, and does not rise to the level of deliberate indifference. The failure to prescribe antibiotics for E Coli is not deliberate indifference unless no other treatment was provided, and if the lack of antibiotics unnecessary infliction of pain. allegations that Dr. Sood resulted in wanton and The same is true of Plaintiff’s failed to advise him of positive results for bacterial infection from a urine test for one month, and did not prescribe antibiotics for another week. Not all bacterial infections require treatment with antibiotics. See e.g. Stewart v. Kelchner, 358 F. App’x 291, 292 n. 1 (3d Cir. 14 2009) (“most MRSA skin infections can be treated without antibiotics by draining the sores”) (quoting Kaucher v. County of Bucks, 455 F.3d 418, 421 (3d Cir. 2006)). lacks sufficient factual detail to draw the The complaint inference that failure to treat with antibiotics caused Plaintiff unnecessary and wanton infliction of pain. Plaintiff ordering also the alleged antibiotics Dr. Sood prescribed delayed by for another one week physician. Plaintiff has not alleged the reason for the delay or how the delay caused him unnecessary and wanton infliction of pain. example, prescribed if Dr. Sood treatment, disagreed and with prescribed a another different treatment, deliberate indifference cannot be shown. For physician’s course of See White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990) (‘[n]o claim is stated when a doctor disagrees with the professional judgment of another doctor. There may, for example, be several acceptable ways to treat an illness”) (emphasis in original). For these reasons, Plaintiff’s Eighth Amendment inadequate medical care claims against Dr. Sood are dismissed without prejudice. E. Eighth Amendment Failure to Protect Claim Plaintiff brings an Eighth Amendment failure to protect claim against federal employee Brian Womack, in his individual capacity. (Compl., ECF No. 1 at 21.) Plaintiff alleges Womack authorized the demolition of the “asbestos laden” floor in the 15 law library of Building 5842 in the West Compound of FCI Fort Dix in September 2016. (Id. at 4.) Plaintiff was exposed to breathing asbestos fibers and mastic glue for three days. at 21.) Womack conducted the asbestos removal “without proper protection remove (Id. and the without going asbestos.” through (Id.) the Plaintiff proper does channels not allege to an injury that arose over these three days, but he alleges that he was exposed to a toxic substance that may cause future harm. (Id. at 4-5.) To state a claim for an Eighth Amendment violation based on exposure to an environmental health risk, an inmate must show that he is being exposed to unreasonably high levels that pose an unreasonable risk of serious damage to his future health. See Helling v. McKinney, 509 U.S. 25, 35 (1993) (alleging exposure to second hand tobacco smoke). The objective factor of the assess test “also requires a court to whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Id. Exposure for three days to asbestos tile removal does not violate contemporary standards of decency because it does not create an unreasonable risk of serious damage to future health. See Templeton v. Anderson, 607 F. App’x 784, 787 (10th Cir. 2015) (finding exposure to black mastic and asbestos-containing 16 tile for one hour did not violate contemporary standards of decency); McNeil v. Lane, 16 F.3d 123, 125 (7th Cir. 1993) (exposure to moderate levels of asbestos is common); compare Goss v. American Cyanamid, Co., 278 N.J.Super. 227, 236 (N.J. Super. Ct. App. Div. 1994) (in a product liability asbestos case, frequent, regular removing asbestos exposure by employees applying or demonstrated sufficient exposure to establish medical causation) (quoting Sholtis v. American Cyanamid Co., 238 N.J. Super 8 (N.J. Super. Ct. App. Div. 1989)). the Court will dismiss with prejudice the Eighth Therefore, Amendment failure to protect claim against Defendant Brian Mack in his individual capacity. The three-day removal of asbestos tiles from the law library may be considered as part of the conditions of confinement claim. F. Motion for Subpoena After filed a submitting motion for his a complaint subpoena to under the Court, Federal Rule Plaintiff of Civil Procedure 45, directing the non-party Labcorp Raritan to produce certified Plaintiff. copies of all laboratory testing (Mot. for Subpoena, ECF No. 2). relating to First, Plaintiff must submit a subpoena that complies with the form and contents 17 of a subpoena, as outlined in Federal Rule of Civil Procedure 45(a).2 Second, Federal Rule of Civil Procedure 45(a)(4) provides: (4) Notice to Other Parties Before Service. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party. After the summons and complaint have been served on Defendants Jordan Hollingsworth and David Ortiz, Plaintiff must serve the requisite notice of subpoena on them. Therefore, Plaintiff’s motion for subpoena is denied without prejudice. III. CONCLUSION For the reasons stated above, the Court grants the IFP application, dismisses States, Brian and the Womack Bivens and claims Ravi Sood against in the their United official capacities; dismisses the Eighth Amendment failure to protect and Eighth Amendment inadequate medical care claims without prejudice; and permits the conditions of confinement claims to proceed, subject to briefing by the parties of the effect of 2 The subpoena submitted by Plaintiff does not include the attachment described in the subpoena: “The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule of 5 (d) and e), relating to your duty to respond to this subpoena and the potential consequences of not doing so, are attached.” 18 Ziglar v. Abbasi, 137 S.Ct. 1843 (2017) on an implied Bivens cause of action. An appropriate order follows. DATE: October 23, 2017 s/Renée Marie Bumb__________ RENÉE MARIE BUMB United States District Judge 19
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