United States District Court, D. New Jersey
August 15, 2005.
ARSELL LEWIS, JR. Plaintiff,
DEVON BROWN, ET AL., Defendants.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
This matter comes before the Court on the motions to dismiss
filed by Defendant Devon Brown ("Defendant Brown"), Commissioner
of the New Jersey Department of Corrections, and Defendant
Kathryn MacFarland ("Defendant MacFarland"), Administrator of
South Woods State Prison ("SWSP") (Collectively, "Defendants
Brown and MacFarland" or "State Defendants"). Plaintiff Arsell Lewis, Jr., pro se ("Plaintiff" or "Lewis"),
an inmate at the Atlantic County Justice Facility, is suing seven
defendants pursuant to 42 U.S.C. § 1983 in connection with an
infection he suffered after undergoing surgery to repair a torn
Achilles tendon. The issues before the Court are whether
Plaintiff alleges personal conduct on the part of Defendants
Brown and MacFarland sufficient to state a § 1983 claim and
whether the letters Plaintiff sent to State Defendants can
support a deliberate indifference claim against them. For the
reasons stated below, State Defendants' motions to dismiss are
On June 29, 2002, while playing handball, Plaintiff sustained a
tear of his left Achilles tendon. Discharge Summary at 1, Ex. B
to Pl.'s Compl. Plaintiff underwent surgery to repair the torn
tendon on September 4, 2002. Id. After the surgery, Plaintiff
was placed in a short-leg cast and discharged. Id. Dr. Mark
Pressman ("Dr. Pressman") indicated in the discharge summary,
dated September 5, 2002, that Plaintiff "need[ed] follow-up in
approximately two weeks time at the orthopedic clinic to check
the cast as well as window the cast and check the posterior
medial wound at the site of the Achilles tendon repair." Id. at
On September 29, 2002, Plaintiff wrote a letter to Defendant
MacFarland asking for her assistance in "getting back out to have
cast removed." Letter from Arsell Lewis, Jr. to Kathryn
MacFarland (Sept. 29, 2002). He also wrote a letter to Defendant
Brown on October 18, 2002. Letter from Arsell Lewis, Jr. to Devon
Brown (Oct. 18, 2002). In this letter, Plaintiff indicated that
he had not received a response from his letter to Defendant
MacFarland, and that he "went to medical trip station for
appointment to have cast removed but [he] was stopped from going
to appointment by central transportation [because central
transportation] didn't have [a] handicap[ed] van [in which] to
deliver [him] in [his] wheelchair." Id. He also asked Defendant Brown for help. Id.*fn1
Plaintiff did not return to the Orthopedic Clinic until October
24, 2002, seven weeks after the surgery; however, he had not had
a cast change until the week prior to the re-evaluation.
Discharge Summary at 1, Ex. 1A to Pl.'s Compl. at 15. According
to Dr. Pressman, Plaintiff was "lost" postoperatively. Id.
Plaintiff was diagnosed as having an infected wound of the left
Achilles tendon with skin sloughs. Id.; Ex. F. to Pl.'s Br. On
October 28, 2002, the infected tissue was surgically removed and
determined gangrenous. Id.; Discharge Summary at 1, Ex. 1A to
Pl.'s Compl. at 15. A portion of the Achilles tendon was also
Plaintiff filed a complaint with this Court on August 19, 2004.
The case was assigned docket number 04-CV-3962 (FLW). On October
4, 2004 Plaintiff sent a letter to the clerk stating that he
"would like to take opportunity to dismiss this complaint under
the Civil Rights Act 42 U.S.C. § 1983." On October 18, 2004, in
accordance with Plaintiff's letter, I entered an order dismissing
his case. On October 25, 2004, Plaintiff sent me a letter
indicating that there had been a mistake and that he did not
intend to voluntarily dismiss his case. Plaintiff filed another
complaint on December 13, 2004, docketed as Case No.
04-CV-6063(FLW). I granted his application to proceed in
forma pauperis on March 24, 2005. Defendant Brown filed a
motion to dismiss Plaintiff's complaint on May 2, 2005 and
Defendant MacFarland filed a motion to dismiss the complaint on
May 10, 2005.
A. Motion to Dismiss Standard
In considering a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the Court accepts as true all allegations in the
Plaintiff's Complaint and all reasonable inferences that can be
drawn therefrom after construing them in the light most favorable
to the non-movant. Jordan v. Fox, Rothschild, O'Brien &
Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). A pleading may be
dismissed for "failure to state a claim where it appears beyond
doubt that no relief could be granted under any set of facts
which could be proved consistent with the allegations."
Hedenburg v. Bando American, Inc., 1992 WL 443432, at *4
(D.N.J. Mar.3, 1992) (citing Hishon v. King & Spalding,
467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). Courts are
required when conducting the 12(b)(6) inquiry to accept all
well-pleaded allegations in the complaint as true and to draw all
reasonable inferences in favor of the non-moving party. In re
Rockefeller Ctr. Prop., Inc. Sec. Litig., 311 F.3d 198, 215 (3d
Cir. 2002). Nevertheless, legal conclusions offered in the guise
of factual allegations are given no presumption of truthfulness.
Chugh v. Western Inventory Services, Inc., 333 F.Supp.2d 285,
289 (D.N.J. 2004) (citing Papasan v. Allain, 478 U.S. 265, 286,
106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Therefore, in ruling on a
Rule 12(b)(6) motion, courts can and should reject "legal
conclusions," "unsupported conclusions," "unwarranted
references," "unwarranted deductions," "footless conclusions of
law," and "sweeping legal conclusions in the form of actual
allegations." Morse v. Lower Merion School Dist., 132 F.3d 902,
907, n. 8 (3d Cir. 1997). Civil rights plaintiffs are not subject
to a heightened pleading requirement, but rather must only
contain a "short and plain statement" of the claim pursuant to
Fed.R.Civ.P. 8(a). Alston v. Parker, 363 F.3d 229, 233-34
(3d Cir. 2004).
On a motion to dismiss, the Court generally does not consider
documents extraneous to the pleadings, but the Court may consider
a "document integral or explicitly relied upon in the complaint . . .
without converting the motion to dismiss into one for summary
judgment." In re Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1426 (3d
Cir. 1997). Here, because Plaintiff refers in his complaint to
the medical reports and letters that he provided, this Court may
consider those documents without converting this Rule 12(b)(6)
motion into a motion for summary judgment. See id.
B. Personal Involvement and Deliberate Indifference
Section 1983 imposes "civil liability upon any person who,
acting under the color of state law, deprives another individual
of any rights, privileges, or immunities secured by the
Constitution or laws of the United States." Gruenke v. Seip,
225 F.3d 290, 298 (3d Cir. 2000). For liability to attach to a
defendant in his individual capacity, he or she "must have
personal involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior." Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing
Parratt v. Taylor, 451 U.S. 527, 537 n. 3, 68 L. Ed. 2d 420,
101 S. Ct. 1908, (1981)); see also Sunkett v. Misci,
183 F. Supp. 2d 691, 710 (D.N.J. 2002). Such personal involvement "can
be shown through allegations of personal direction or of actual
knowledge and acquiescence." Rode, 845 F.2d at 1207-08.
In his complaint, Plaintiff does not make any specific
allegations regarding the conduct of Defendant Brown or Defendant
MacFarland. Instead, Plaintiff alleges in his complaint that
"[a]ll defendants play[ed] a major part . . . [in the] delay in
removing [the] cast [from his] left leg" which caused Plaintiff's
Achilles tendon to become infected. Compl. In their moving
papers, Defendant Brown, the Commissioner of the New Jersey
Department of Corrections, and Defendant MacFarland, the
Administrator of South Woods State Prison, argue that the
complaint does not allege personal conduct on their part
sufficient to state a § 1983 claim. While civil rights plaintiffs
are not subject to a heightened pleading requirement, but rather
must only contain a "short and plain statement" of the claim pursuant to
Fed.R.Civ.P. 8(a), Alston, 363 F.3d at 233-34, the Court
finds that Plaintiff's allegation that all defendants "play[ed] a
major part" in his injury falls well short of alleging "personal
direction" or "actual knowledge and acquiescence" on the part of
Defendants Brown and MacFarland as required by Rode.
However, in his Opposition to Defendants' motions, Plaintiff
argues for the first time that Defendants Brown and MacFarland
had sufficient personal involvement by virtue of the letters that
he wrote to them and their alleged failure to "respond" thereto
or "intervene." Pl.'s Opp. Br. at 2-5. Moreover, Plaintiff argues
that "[i]nstead of assistance what Plaintiff received was a blind
eye turned." Id. at 8. Therefore, the Court is construing
Plaintiff's Opposition as arguing that his 42 U.S.C. § 1983 claim
is premised upon Defendants' alleged deliberate indifference to
his serious medical need, in violation of the Eighth Amendment.
Thus, the issue before the Court is whether the Court should
grant Plaintiff leave to amend his complaint so that he can
allege that Defendants failed to respond to his letters, which
was deliberately indifferent to his serious medical need and in
violation of the Eighth Amendment.
Leave to amend should not be granted if the amendment would be
futile. Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). "An
amendment is futile if the amended complaint would not survive a
motion to dismiss for failure to state a claim upon which relief
could be granted." Id.
According to the Third Circuit, the following conduct by a
prison official constitutes deliberate indifference: "deny[ing]
reasonable requests for medical treatment . . . expos[ing] the
inmate to undue suffering" or "knowledge of the need for medical
care" coupled with an "intentional refusal to provide that care."
Monmouth County Correctional Institutional Inmates v. Lanzaro,
834 F.2d 326, 346 (3d Cir. 1987) (quotation marks and citations
omitted). In Durmer v. O'Carroll, 991 F.2d 64 (3d Cir. 1993), the
plaintiff-prisoner sued both medical and non-medical prison
officials for deliberate indifference to a serious medical need
in violation of the Eighth Amendment. With respect to the
non-medical prison officials, the Third Circuit explained that
"the only allegation against either of these two defendants was
that they failed to respond to letters [plaintiff] sent to them
explaining his predicament" and held that "neither can be
considered deliberately indifferent simply because they failed to
respond directly to the medical complaints of a prisoner who was
already being treated by the prison doctor." Durmer,
991 F.2d at 69.
In Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) the
Third Circuit imported the Durmer holding into the
If a prisoner is under the care of medical experts. . . .
a non-medical prison official will generally be
justified in believing that the prisoner is in
capable hands. This follows naturally from the
division of labor within a prison. Inmate health and
safety is promoted by dividing responsibility for
various aspects of inmate life among guards,
administrators, physicians, and so on. Holding a
non-medical prison official liable in a case where a
prisoner was under a physician's care would strain
this division of labor. Moreover, under such a
regime, non-medical officials could even have a
perverse incentive not to delegate treatment
responsibility to the very physicians most likely to
be able to help prisoners, for fear of vicarious
Id. at 236 (emphasis in original).
Accordingly, in Spruill, the Third Circuit concluded that,
"absent a reason to believe (or actual knowledge) that prison
doctors or their assistants are mistreating (or not treating) a
prisoner, a non-medical prison official . . . will not be
chargeable with the Eighth Amendment scienter requirement of
deliberate indifference." Spruill v. Gillis, 372 F.3d 218
(3d Cir. 2004). Here, it is undisputed that Plaintiff was already being treated
by the prison medical staff when he sent his letters to
Defendants Brown and MacFarland. Plaintiff's letter to Defendant
MacFarland dated September 29, 2002 provides:
I'am [sic] writing in the behalf that I'am [sic]
having problems with getting back out to have cast
removed from my leg.
Ms. McFarland [sic], Doctor Pressman who operated on
the repair of my Achilles tendon with my left leg
explain to me while being released on 9-5-02 that in
two weeks time the cast will most likely be removed.
Any assistance will be highly appreciated.
Plaintiff's letter to Defendant Brown dated October 18, 2003
I had wrote Ms. McFarland [sic] a letter about my
medical problem with my cast, and I hadn't heard
anything from her on my matter.
See I went to Medical trip Station for appointment to
have cast removed but I was stopped from going to
appointment by Central transportation did'nt [sic]
have handicap van to deliver me in my wheel chair.
Could you please help.
Plaintiff "bears the burden of proving (and hence pleading)
facts supporting the defendants' mental states." Spruill,
372 F.3d at 236 (citing Singletary v. Pa. Dep't of Corr.,
266 F.3d 186
, 192 n. 2 (3d Cir. 2001)). Plaintiff fails to allege any
facts with respect to the mental states of Defendants Brown and
MacFarland. Furthermore, the letters that form the basis of the
potential deliberate indifference claim only confirm that Brown
and MacFarland were aware that Plaintiff was under the care of
the prison doctor and medical staff, placing them within the
scope of Spruill.
In his letter to Defendant MacFarland, Plaintiff wrote that his
doctor explained that his cast "will most likely be removed" two
weeks after his September 5, 2002 release. Therefore, Plaintiff
expected his cast to removed on or about September 19, 2002.
Plaintiff's letter to MacFarland is dated September 29, 2002 a
mere ten days after the date that Plaintiff indicated his cast would "most likely be removed." This letter simply
cannot support a finding that Defendant MacFarland possessed
actual knowledge or a reason to believe that prison doctors or
their assistants were mistreating or not treating Plaintiff.
See Spruill, 372 F.3d at 236.
In his letter to Defendant Brown, Plaintiff wrote that he had
an appointment to have his cast removed, but was unable to make
the appointment because Central Transportation did not have a
handicapped van in which to transport Plaintiff, who was
wheelchair-bound at the time. This letter, in which Plaintiff
admits that he had an appointment to have the cast removed, also
cannot support a finding that Defendant Brown possessed actual
knowledge or a reason to believe that prison doctors or their
assistants were mistreating or not treating Plaintiff. See
id. at 236. Therefore, even assuming, arguendo, that each
State Defendant received Plaintiff's letter and did nothing in
response, these letters cannot support a finding that Defendants
Brown and MacFarland possessed the requisite mental state to
state an Eighth Amendment claim. Thus, State Defendants' motions
to dismiss are granted.
For the reasons stated above, Defendants' motions are granted.
An appropriate Order will follow.