On appeal from the Superior Court of New Jersey, Law Division, MiddleseX County, L-7352-99.
Before Judges Ciancia, Alley and Parker.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2004
Plaintiffs appeal a summary judgment dismissing their complaint against defendants, the New Jersey Department of Corrections (DOC), and the Middlesex County Adult Corrections Center (MCACC). In a previous appeal, we dismissed defendant Correctional Medical Services, Inc. (CMS) from the litigation. Neal v. New Jersey State Dep't of Corr., A-3885-01T3 (App. Div. October 24, 2002). We now affirm in part and reverse in part.
Tyrone Neal was a state prison inmate incarcerated at the East Jersey State Prison in Rahway. In February 1997 he was admitted to St. Francis Medical Center in Trenton and diagnosed with, among other things,"Paroxysmal Nocturnal Hemoglobinuria with hemolytic episode" (PNH). The treatment for PNH consists of administering proper dosages of prednisone. The only potential cure is a bone marrow transplant. The condition can be fatal if not properly treated.
Neal was discharged from St. Francis Hospital on March 4, 1997. Prednisone was prescribed and administered. On June 23, 1997, Neal was transferred from state prison to MCACC to await sentencing on a separate charge. He filled out a medical history form stating he had PNH and a separate physician's assessment noted his condition. The record is not entirely clear whether plaintiffs claim in part that Neal was denied prednisone while in state prison. We note a July 28, 1997 letter from Neal to Toya Scott wherein Neal asserted that he was taking prednisone"up until May and that was when Rahway stop[ped] giving me the medication." Neal allegedly made multiple requests for treatment while in the MCACC infirmary, but did not receive his necessary medication. Another inmate said the"officers... told him that he was faking it." On August 1, 1997, Neal complained of abdominal pain and nausea. He was seen by a doctor and placed on bed rest. The next morning Neal was found dead in his bed. The cause of death was listed as"Anemia and Hemoglobinemia" and"Paroxysmal Nocturnal Hemoglobinemia."
Neal's daughter, plaintiff Tymirah Scott-Neal, and his estate brought a complaint against both agencies and CMS, the private entity that provided contractual medical services to the institutions. No individual doctors or agency personnel were named as defendants, even though the complaint contained references to specific persons.
The first three counts of the complaint alleged a survivorship action pursuant to N.J.S.A. 2A:15-3. The fourth count alleged a wrongful death action pursuant to N.J.S.A. 2A:31-1 to -6. Counts five and six alleged medical malpractice against"John Doe" treating physicians. Count seven asserted claims under 42 U.S.C.A. § 1983 against the agencies, but not against CMS.
On motions for summary judgment the complaint was dismissed in its entirety as to the agencies. CMS was held in on a vicarious liability theory but this court, on motion for leave to appeal, reversed that order and dismissed CMS from the litigation. On the record presented, we concluded that CMS was essentially akin to an employment agency and did not exercise actual or apparent authority over the doctor's practice of medicine in the institutions.*fn1 Neal v. New Jersey State Dep't of Corr., supra, A-3885-01T3.
The trial court also denied a cross-motion by plaintiffs seeking to shift to defendants the burden of proving what medications were actually administered to decedent.
The trial court's decision to dismiss the § 1983 actions against the agencies was clearly correct. Neither the State nor a local governmental entity is a"person" within the meaning of 42 U.S.C.A. § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 62-70, 109 S. Ct. 2304, 2307-2312, 105 L. Ed. 2d 45, 52-57 (1989). It is true that local governments are not protected by the Eleventh Amendment and under certain circumstances can be subject to suit under § 1983. Id. at 70, 109 S. Ct. at 2312, 105 L. Ed. 2d at 57. See Monell v. New York City Dep't of Soc. Serv., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-2038, 56 L. Ed. 2d 611, 638 (1978). Those circumstances, however, are not here present. There has been no showing of a policy, practice, or custom demonstrating deliberate indifference or even a single policy decision or incident that could be said to have been undertaken by an individual with final policy-making authority. Pembaur v. City of Cincinnati, 475 U.S. 469, 481-484, 106 S. Ct. 1292, 1299-1300, 89 L. Ed. 2d 452, 464-465 (1986). Accordingly, that portion of the summary judgment dismissing plaintiffs' § 1983 claims is affirmed.
Plaintiffs' negligence claims stand on a different footing. The trial court's reasons for dismissing those counts of the complaint were not well articulated. It apparently believed that the agencies, having contracted and relied on CMS, discharged their obligations to the inmates. Not so."Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody...." West v. Atkins, 487 U.S. 42, 56, 108 S. Ct. 2250, 2259, 101 L. Ed. 2d 40, 54 (1988) (holding that a doctor who supplies prison medical services as an independent contractor can be sued as a"person" under § 1983); accord DeShaney v. Winnebago County Dep't of Soc. Serv., 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). This, of course, is an exception to the general rule that one who hires an independent contractor is not liable for the negligence of that contractor. Baldasarre v. Butler, 132 N.J. 278, 291 (1993). Providing adequate healthcare to inmates is a matter of federal constitutional compulsion.
The fact that the State employed respondent pursuant to a contractual arrangement that did not generate the same benefits or obligations applicable to other"state employees" does not alter the analysis. It is the physician's function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed to the State. Whether a physician is on the state payroll or is paid by contract, the dispositive issue concerns the relationship among the State, the physician, and the prisoner. Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State's prisoners of the means to vindicate their Eighth Amendment rights. ...