The opinion of the court was delivered by: WOLIN
ALFRED M. WOLIN, UNITED STATES DISTRICT JUDGE
On April 28, 1989 plaintiffs Geraldine and Gilbert Maynard filed a complaint against defendants New Jersey, East Jersey State Prison, New Jersey Department of Corrections, Elizabeth Buss, R.N., and Frederick Bauer, M.D., alleging violation of their son's civil rights and pendent state tort claims arising out of defendants' actions during the five months preceding plaintiffs' son's death. Specifically, plaintiffs allege that defendants' failure to diagnose and refusal to treat their son was the direct and proximate cause of his death from Acquired Immune Deficiency Syndrome ("AIDS") in violation of 42 U.S.C. § 1983 and the Eighth Amendment's prohibition against cruel and unusual punishment.
In the instant motion, defendants seek dismissal of plaintiffs' complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, the Court will grant defendants' motion to dismiss plaintiffs' complaint with prejudice as to defendants New Jersey, East Jersey State Prison, and the New Jersey Department of Corrections. However, defendants' motion to dismiss plaintiffs' claims against defendants Buss and Bauer will be denied.
From mid-January 1987 until his death on May 15, 1987, plaintiffs' decedent son, Gilbert Maynard, Jr., was incarcerated at East Jersey State Prison. During this time, plaintiffs' decedent son allegedly suffered from persistent lack of energy, cough, and cold symptoms that progressed to include a sore throat, body aches, difficulty swallowing, diarrhea, and red patches on his pharynx. Plaintiffs allege in their complaint that East Jersey State Prison medical staff members Elizabeth Buss, R.N. and Frederick Bauer, M.D. treated the decedent during these months, but failed to diagnose decedent's AIDS condition at any time during January, February, March, or April 1987
; instead, defendants Bauer and Buss treated decedent's apparent cold symptoms with Tylenol and sore throat lozenges.
A. Plaintiffs' Cause of Action Under 42 U.S.C. § 1983 and the Eighth Amendment
A cause of action arises under 42 U.S.C. § 1983 whenever a person acting under color of state law or usage deprives another of rights guaranteed by the United States Constitution or federal law:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
(Emphasis added). Among the many constitutional guarantees whose violation states a cause of action under § 1983 are the protections of the Eighth Amendment:
Excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual ...