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August 18, 2005.

DAVID RIGGS, Plaintiff,

The opinion of the court was delivered by: JOSEPH GREENAWAY, District Judge

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION

This matter comes before the Court on the motion for summary judgment of Defendants Grace Rogers and Angel Santiago ("Defendant Rogers" and "Defendant Santiago"), pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant argues that Plaintiff's complaint should be dismissed with prejudice because Plaintiff is unable to maintain a cause of action as to Defendant Rogers, pursuant to Section 1983, and because Plaintiff's complaint fails to state a colorable claim alleging that Defendants acted with deliberate indifference to Plaintiff's serious medical needs in violation of the Eighth Amendment.*fn1 Background

In 1988, David Riggs ("Plaintiff" or "Riggs") was convicted of criminal attempt aggravated sexual assault, burglary, and possession of a weapon. (Affadivit of Angel Santiago ("Santiago Aff.") Ex. A.) Prior to his release date, Plaintiff was evaluated, and on February 15, 2000, he was deemed a sexually violent predator and was civilly and involuntarily committed to the Special Treatment Unit ("STU" or "Unit") in Kearny, New Jersey, pursuant to the New Jersey Sexually Violent Predator Act ("SVPA"). N.J. STAT. ANN. § 30:4-27.24 et seq. (Santiago Aff. Ex. A.) The SVPA allows involuntary commitment of those deemed "individuals who commit sex offenses, suffer from mental abnormalities or personality disorders which make them likely to engage in repeat acts of predatory sexual violence if not treated for their mental conditions." N.J. STAT. ANN. § 30:4-27.25(a). The Department of Corrections ("DOC") is responsible for the custody, care, and treatment of committed individuals. N.J. STAT. ANN. § 30:4-27.34(a). Defendants Rogers and Santiago were the Administrator and Assistant Superintendent of the Adult Diagnostic and Treatment Center of the STU, respectively, at the time Plaintiff was committed to the Unit. (Affadavit of Grace Rogers ("Rogers Aff.") ¶ 1; Santiago Aff. ¶ 1.)

  The DOC has entered into an agreement with Correctional Medical Services ("CMS"), a private contract vendor, whereby CMS provides medical services for STU residents. (Santiago Aff. ¶ 5.)

  In August 2001, Plaintiff was seen by Dr. Bharatkumar Patel, a CMS physician. (Complaint ("Compl."), ¶ 5.) Plaintiff alleges that he complained to Dr. Patel of chest pains and symptoms related to coronary artery disease. (Id.) Sometime thereafter, Plaintiff contends that Dr. Patel scheduled a cardiac consultation with Dr. Jeferi of Hamilton Specialists. In October 2001, Plaintiff visited Dr. Jeferi, who ordered a cardiac stress test and cardiac catherterization. (Id.) Plaintiff received a cardiac stress test in December of 2001. (Brief and Appendix on Behalf of State Defs. ("Defs.' App.," Ex. D.).)

  On March 14, 2002, Joan D. Van Pelt, Plaintiff's court appointed counsel, wrote to Defendant Santiago, inquiring about the DOC's delay in providing the cardiac catheterization that Dr. Jeferi had ordered, and requesting that the DOC schedule the procedure immediately. (Compl. ¶ 5; Santiago Aff. Ex. C, (explaining, "[i]t is now almost 6 months later and the procedure has not been scheduled. It is my understanding that [the DOC] is responsible for providing medical care to the STU residents.").) (Id.) In May 2002, Plaintiff alleges that he asked Defendant Santiago to inform him as to when the cardiac catheterization would be ordered.*fn2

  On August 7, 2002, Plaintiff submitted a written grievance, alleging that Defendant Santiago ignored his repeated requests to schedule a cardiac catheterization in compliance with Dr. Jeferi's order. (Defs.' App., Ex. C.) Plaintiff's written grievance states that it contained enclosures including a copy of the letter from Ms. Van Pelt and Dr. Jeferi's order. (Id.) Plaintiff's grievance notes that CMS reported no knowledge of Dr. Jeferi's order. (Id.) The grievance form further indicates that it was forwarded to DOC on August 9, 2002. (Id.) Defendants contend that the form was forwarded "to medical" in September 2002. (Id.) The Residents' Guide to the STU, which each resident receives upon arrival, states, "[a]ll responses to grievances will be made to the resident within 30 days, and the responses will be in writing. If the grievance is not resolved to the satisfaction of the resident, the grievance can be forwarded to Unit's Clinical Director, or Administrator for final resolution of the complaint." (Defs.' App., Ex. B.)

  St. Francis Medical Center in Trenton, New Jersey admitted Plaintiff for a cardiac catheterization on November 19, 2002. (Defs.' App., Ex. D.) The procedure revealed irregularities with eighty to ninety percent stenosis. (Id.) Due to Plaintiff's heart condition, Dr. Jay K. Patel performed an angioplasty with placement of two stents. St. Francis Medical Center discharged Plaintiff on November 22, 2002. (Id.)

  Legal Standards

  A. Dispositive Motion

  This matter is before this Court on Defendants Grace Rogers and Angel Santiago's motion for summary judgment, pursuant to FED. R. CIV. P. 56. Plaintiff argues that the parties have not yet conducted preliminary discovery and thus, urges this Court to apply the standard under Rule 12(b)(6).*fn3 On a motion to dismiss for failure to state a claim, pursuant to FED. R. CIV. P. 12(b)(6), the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir. 2000). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). While a court will accept well-pled allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). "The pleader is required to `set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist.'" Kost v. Kozakewicz, 1 F.3d 176, 183 (3d Cir. 1993) (quoting 5A Wright & Miller, Fed. Practice & Procedure: Civil 2d § 1357).

  Summary judgment is appropriate under FED. R. CIV. P. 56(c) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). In making this determination, the Court must draw all reasonable inferences in favor of the non-movant. Hullett v. Towers, Perrin, Forster & Crosby, Inc., 38 F.3d 107, 111 (3d Cir. 1994); Nat'l State Bank v. Fed. Reserve Bank of N.Y., 979 F.2d 1579, 1581 (3d Cir. 1992).

  Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). "[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990).

  If the nonmoving party has failed "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, . . . there can be `no genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23). In determining whether there are any issues of material fact, the Court must resolve all doubts as to the existence of a material fact against the moving ...

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