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August 4, 2005.

LAMONT G. CRYMES, Plaintiff,

The opinion of the court was delivered by: JEROME SIMANDLE, District Judge


Plaintiff Lamont Crymes seeks recovery under 42 U.S.C. § 1983 for violation of his right to receive medical care for a dislocated finger suffered while confined in the Atlantic County Justice Facility. This matter comes before the Court upon the motion for summary judgment of Defendants Atlantic County Government; Board of Chosen Freeholders, the governing body of Atlantic County; Dennis Levinson, Executive of Atlantic County; Gary Merline, Warden of Atlantic County Justice Facility; Atlantic County Justice Facility ("ACJF"); Atlantic County Justice Facility Medical Department;*fn1 and Prison Health Services, Inc. ("Atlantic County Government") pursuant to Federal Rule of Civil Procedure 56. In the alternative, Defendants argue that Plaintiff fails to state a viable claim against Dennis Levinson and Gary Merline because respondeat superior does not provide a basis for liability in suits brought under 42 U.S.C. § 1983. In addition, Defendants assert that Plaintiff's Complaint should be dismissed for noncompliance with the administrative remedies prior to filing suit. For the reasons discussed herein the motion for summary judgment will be granted.


  On February 10, 2003, Plaintiff Lamont Crymes, who was an inmate at ACJF, injured his left middle finger while playing basketball on the prison grounds.*fn2 (Compl. at ¶ 3; see Crymes Deposition at 13:4-9.) Plaintiff was later escorted to the medical department, where he was treated by a nurse. (Crymes Dep. at 13:11 to 15:19.) The nurse examined Plaintiff's finger and advised him that he would not be sent to a hospital for further examination and treatment that day. (Id. at 14:17-25.) The nurse could not find a splint or a sling apparatus, so she taped Plaintiff's middle and next finger together and sent him away with some painkiller medication. (Id. at 15:1-11.)

  On the next day, February 11, 2003, Dr. James E. Kovacs performed an x-ray of Plaintiff's injured finger and concluded that the injured finger was in fact dislocated. (See Def. Ex. G.) Finally, on February 13, 2003, after repeated requests, Plaintiff was examined by Dr. Ramon Acosta. (Pl. Br. Ex. A-1; see Crymes Dep. 17:11 to 18:12.) Dr. Acosta analyzed Plaintiff's injury and informed Crymes that arrangements would be made to send him out to a medical facility for further treatment. (Crymes Dep. 20:6-10.) The next day, Plaintiff filled out an Inmate Complaint Form addressed to the Division Director (Warden) stating that his finger was infected and that he needed the warden's assistance. (Pl. Br. Ex. G.) Plaintiff thereafter received a reply from Mr. Lamont Cruz of the Department of Social Services indicating that Plaintiff would be seen by the medical department. (Crymes Dep. 22:5-13.)

  The next treatment Plaintiff received was on February 21, 2003 by Dr. Stanley C. Marczyk at Atlantic Shore Orthopedic Associates. (Id. at 22:22 to 23:9.) Dr. Marczyk tried unsuccessfully to push Plaintiff's dislocated finger back into place and ultimately put a splint on Plaintiff's finger and sent him back to ACJF. (Id. at 25:10-16.) When Plaintiff returned to ACJF, an officer took his splint off under the premise that it may be used as a weapon. (Id. at 25:18 to 26:15.) As a result of the alleged inadequate medical care and the delay in being transported to an orthopedic specialist, Plaintiff argues that Atlantic County Government caused the "permanent [l]exion [d]eformity" of his left middle finger. (Compl. at ¶ 3.)

  On March 20, 2003, Plaintiff was transferred to the New Jersey Department of Corrections at the Central Reception and Assignment Facility in Trenton, New Jersey. (Def. Br. at 3.) On or around April 26, 2003, Crymes was again transferred to Southern State Correctional Facility in Delmont, New Jersey. (Dep. at 29:1-3.) Later, he was transferred to Riverfront State Prison in Camden, New Jersey where he is currently in custody. (See supra n. 2.)

  Plaintiff filed a seven-count Complaint in this Court on September 15, 2004 against the Atlantic County Government alleging a violation of his civil rights pursuant to 42 U.S.C. § 1983. In support of his claim, Crymes alleges an Eighth Amendment*fn3 violation suggesting he was subjected to cruel and unusual punishment as a result of "deliberate and willful [i]ndifference to [his] welfare." (Pl. Statement of Jurisdiction attached to Compl.) On March 22, 2005, Defendants filed the instant motion for summary judgment pursuant to Fed.R.Civ.P. 56.


  A. Standard of Review

  Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

  In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the nonmoving party by extending any reasonable favorable inference to that party; in other words, "the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250.

  The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[T]he burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.

  The nonmoving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). Plaintiff must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citations omitted). Thus, if the plaintiff's evidence is a mere ...

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