The opinion of the court was delivered by: Wolfson, United States District Judge
Presently before the Court is a Motion for Summary Judgment filed by Defendants Sherise Ganie*fn1 and Dr. Jyotsna Agrawal ("Defendants"). Plaintiff John Brandt, pro se ("Plaintiff"), filed the instant action against Defendants for allegedly denying him his Fourteenth Amendment Due Process rights. The Complaint alleges violation of 42 U.S.C. §1983. The Court holds that based on the disputed facts in the record, Defendant's Motion for Summary Judgment is denied. Further, the Court shall appoint Plaintiff pro bono counsel. However, Plaintiff's discovery request is denied without prejudice, but if upon further investigation pro bono counsel determines more discovery is necessary, those discovery requests should be directed to the Honorable Tonianne J. Bongiovanni, U.S.M.J.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is currently a patient of the Ann Klein Forensic Center ("AKFC"), a state psychiatric hospital located in Trenton, New Jersey. Pursuant to N.J.S.A. 30:4-27.10, Plaintiff was involuntarily civilly committed to AKFC after being found not guilty by reason of insanity on criminal charges of robbery. Ganie and Agrawal are both employees of the New Jersey Department of Human Services ("NJDHS"); Ganie is a Medical Security Officer ("MSO") and Agrawal is a clinical psychiatrist at AKFC.
The events of November 17, 2006 are in dispute. Sometime around 8:30 a.m., Ganie was conducting a walkthrough of Plaintiff's unit, Ward 7. An incident report filed by Ganie states that Plaintiff purposefully bumped into Ganie as Plaintiff made his way towards the trash.. Affidavit of Patrick Ostaszewski, Ex. A, AKFC Incident Report ("Ostaszewski Affidavit"). Although Plaintiff admits "he didn't mean to get so close" as he walked by Ganie, he denies any physical contact. Compl. ¶4. Buttressing Plaintiff's account is an affidavit from Roy Schmitt, an eyewitness and fellow patient at AKFC. In his affidavit, Schmitt states that Plaintiff made no physical contact with Ganie as Plaintiff walked passed her. Plaintiff claims that Ganie fabricated the incident and report to punish Plaintiff because "two medical security officers [were] fired for having inappropriate intimate relationships with him," after Plaintiff reported the alleged misconduct to AKFC officials. Compl. ¶2.
Shortly after the incident, Agrawal ordered that Plaintiff be transferred to the Intensive Treatment Unit ("ITU") for observation and seclusion. Ostaszewski Affidavit, Ex. A, AKFC Incident Report. Agrawal did not personally interview or evaluate Plaintiff before ordering his transfer, relying solely on Ganie's report. Id. In fact, according to Plaintif, Agrawal never has personally evaluated Plaintiff during his stay at AKFC. Compl. ¶8. Plaintiff alleges that Agrawal signed off on Ganie's disciplinary report despite Agrawal's knowledge of Ganie's previous harassment of Plaintiff. Compl. ¶15. According to Patrick Ostaszewski, a registered nurse at AKFC on call at the time of the incident, Plaintiff was escorted to Ward 2 by MSOs around 9:00 a.m. Ostazewski Affidavit, ¶¶ 4-6. Ostaszewski states, and AKFC records show, that Plaintiff "was seen by the treatment team on rounds sometime after 11:00 a.m. [on November 17, 2006] and before lunchtime, during which all residents are locked in their rooms for administrative purposes, and demonstrated appropriate behavior and promised not to assault anyone if released." Id. ¶6. AKFC staff assured Plaintiff he would be released from isolated confinement at the next available opportunity. Id. Nonetheless, Plaintiff alleges that after he was seen by medical staff, he remained in isolated confinement until 6:00 p.m. Pl.'s Statement of Material Facts ¶ 12.
Plaintiff was not transferred back to Ward 7 until November 21, 2006 "[a]fter demonstrating no further negative behavior." Id. ¶8. According to Plaintiff's Interdisciplinary Progress Notes supplied by Defendants, Plaintiff was seen on rounds four times between November 17 and November 21, the date of his transfer to Ward 7. Ostaszewski Affidavit, Ex. A, Plaintiff's Interdisciplinary Progress Notes. Ostaszewski states the only difference between Ward 2 and Ward 7, Plaintiff's regular unit, is the presence of more MSOs. Ostaszewski Affidavit ¶7. Plaintiff, however, provides a different description of Ward 2, stating that while in Ward 2, patients are unable to attend regular treatment sessions. Pl.'s Statement of Facts ¶4. In addition, Plaintiff claims that he was unable to access his personal belongings or any other materials while in his Ward 2 room. Id.
Plaintiff filed this action in the United States District Court for the District of New Jersey on November 27, 2006. Defendants filed a joint answer to Plaintiff's Complaint on May 17, 2007. Subsequently, Plaintiff's application for pro bono counsel was denied by Judge Bongiovanni on January 30, 2008. On April 11, 2008, Defendants filed this Motion for Summary Judgment. For the foregoing reasons, Defendants' Motion for Summary Judgment is denied.
Summary judgment is appropriate where the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. The burden of establishing that no "genuine issue" exists is on the party moving for summary judgment. Celotex, 477 U.S. at 330. When the burden of proof at trial is on the non-moving party, as in the case at bar, the moving party can satisfy its initial burden by submitting evidence that negates an essential element of the non-moving party's claim, or by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of the non-movant's claim. Id. at 331.
Once the moving party satisfies this initial burden, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). To do so, the non-moving party must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324. In other words, the non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir.1999). A genuine issue of material fact is one that will permit a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248. In evaluating the evidence, a court must "view the inferences to be drawn from the underlying facts in the light most favorable to the [non-moving] party." Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (citation omitted).
B. Plaintiff's 1983 Claim
Plaintiff's claim for relief arises from 42 U.S.C. § 1983, which provides plaintiffs civil redress for the constitutional violations of state actors. Here, Plaintiff claims that his isolated confinement for psychiatric observation and subsequent five day transfer to Ward 2 violated his Fourteenth Amendment Due Process rights. During his five day transfer to Ward 2, Plaintiff claims that he was not able to go to his treatment sessions and lacked access to his personal belongings. Plaintiff also alleges that Agrawal's failure to evaluate him as required by New Jersey law is a substantial deviation from professional judgment and a violation of the Fourteenth Amendment Due Process Clause. Defendants argue that even if Plaintiff has adequately alleged a Fourteenth Amendment violation, they are entitled to qualified immunity.
Section 1983 provides, in pertinent part, that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory. . .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.
42 U.S.C. § 1983. The law does not create any substantive rights but rather provides "an avenue of recovery for the deprivation of established federal constitutional and statutory rights." Salley v. Rodriguez, No. 07-4914, 2008 WL 65106 at * 4 (D.N.J. Jan.4, 2008); see also Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d. Cir.1995). To establish a § 1983 claim, a plaintiff must demonstrate that the alleged conduct was committed by "(1) a person acting under color of state law and (2) that the conduct deprived him of rights, privileges, or immunities secured by the Constitution or the laws of the United States." Stahl v. Main, No. 07-4123, 2008 WL 2446816, at *3 (D.N.J. June 16, 2008).
With respect to Plaintiff's 1983 claims, the Court will first discuss the applicable case law and balancing test under Youngberg v. Romeo. Second, the Court will address whether the disputed events of November 17, 2006 give rise to an issue of material fact. Third, the Court will determine whether Agrawal's failure to evaluate Plaintiff before ordering his transfer to Ward 2 isolation was a substantial deviation from professional judgment, thereby constituting a procedural due process violation.Fourth, the Court will address whether Plaintiff's right to adequate treatment and reasonable care was infringed by his ...