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Ohn Douglas Jackson v. J. Grondolsky

January 3, 2011


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



This matter comes before the Court upon Plaintiff's filing of an amended complaint and his filing of in forma pauperis application in a related matter. After reviewing these submissions, the Court will grant Plaintiff in forma pauperis for the purposes of the instant action. For the reasons detailed below, two narrowly-tailored lines of Plaintiff's claims will be allowed to proceed past the sua sponte dismissal stage. The remaining claims will be dismissed with prejudice. Since Plaintiff has an extensive litigation history in this Court, it is helpful to summarize the issues raised, addressed, resolved and still pending in Plaintiff's various actions.


On March 12, 2009, the Clerk received Plaintiff's first civil complaint which was filed as Docket Entry No. 1 in Jackson v. Grondolsky, Civil Action No. 09-1112 (D.N.J.) ("Jackson I"). Although that submission arrived without a filing fee or an in forma pauperis ("IFP") application, this Court granted Plaintiff conditional IFP status in light of his allegations that he was swiftly going blind due to an alleged denial of medical care. See Jackson I, Docket Entry No. 2. Although the Court directed service of the complaint in Jackson I, Plaintiff did not submit his IFP but, instead, submitted his amended complaint in Jackson I, which superseded Plaintiff's original complaint and stated no viable causes of action. See Jackson I, Docket Entries Nos. 4 to 7.

Therefore, this Court dismissed Plaintiff's amended complaint, without prejudice to his filing a second amended pleading and, in addition, extended his time to submit an IFP. See Jackson I, Docket Entry No. 7.

In response, Plaintiff again failed to submit his IFP application, nor did he submit his second amended pleading. Rather, he submitted a motion seeking a stay. See Jackson I, Docket Entry No. 8. The Court consequently denied Plaintiff's motion seeking a stay and again extended his time to submit a second amended pleading and IFP application. See Jackson I, Docket Entry No. 9. In response, Plaintiff submitted his second amended pleading and a letter requesting that the second amended pleading be filed as a new and separate civil matter. See Jackson I, Docket Entries Nos. 11 and 13. The Court, therefore, issued an order advising Plaintiff of the statute of limitations consequences that might ensue from filing Plaintiff's second amended pleading as an original pleading in a new matter; explaining to Plaintiff that the collection of filing fees arising from the grant of conditional IFP status in Jackson I would continue; and further explaining that Plaintiff would be responsible for another filing fee (or for submission of another IFP application and resulting collection of the filing fee) in the new matter. See Jackson I, Docket Entry No. 14. In response, Plaintiff reaffirmed his desire to have his second amended pleading docketed as an original complaint in a new and separate matter. See Jackson I, Docket Entry No. 16.

By that time, the Clerk received another complaint from Plaintiff, which was identical in all substantive respects to Plaintiff's second amended pleading submitted in Jackson I.

On the basis of that other complaint, the Clerk initiated another civil matter for Plaintiff, Jackson v. Grondolsky, Civil Action No. 09-5617 (D.N.J.). ("Jackson II"). See Jackson II, Docket Entry No. 1. The Jackson II matter was originally assigned to Judge Jerome B. Simandle, but was reassigned, shortly thereafter, to the undersigned by Chief Judge Garrett E. Brown, Jr. See Jackson II, Docket Entry No. 2. Since Plaintiff's second amended pleading in Jackson I was substantively identical to Plaintiff's complaint already received and docketed in Jackson II, the Court deemed Jackson II the new and separate matter in which Plaintiff wished to file his second amended pleading submitted in Jackson I.

However, since Plaintiff did not submit his filing fee or his IFP in Jackson II, and since the complaint in Jackson II did not allege facts sufficient to waive those requirements as his earlier pleading had, the Court denied Plaintiff IFP status as to Jackson II. Such denial was without prejudice to Plaintiff submitting his IFP application or the filing fee with respect to Jackson II within thirty days from the date of entry of the Court's order. See Jackson II, Docket Entry No. 3.

In the interim, the Clerk received another civil complaint from Plaintiff and opened another civil matter for him, Jackson v. Grondolsky, Civil Action No. 09-6459, Docket Entry No. 1 (D.N.J.) ("Jackson III"). The complaint received in Jackson III was substantively identical to the complaint received in Jackson II (and to the second amended pleading received in Jackson I). See id. As with Plaintiff's submissions in Jackson I and Jackson II, the complaint in Jackson III arrived without Plaintiff's filing fee or his IFP application. See id. In light of Plaintiff's complaint in Jackson III being substantively identical in all respects to Plaintiff's complaint submitted in Jackson II, this Court directed the Clerk to terminate the Jackson III matter as duplicative of Jackson II. See Jackson III, Docket Entry No. 3.

In response, Plaintiff submitted a letter seeking reopening of Jackson III and asserting that Plaintiff is being unduly confused for another litigant who was the plaintiff in Jackson II and a person different from Plaintiff. See id., Docket Entry No. 4. In addition, Plaintiff submitted an application seeking injunctive relief. See id., Docket Entry No. 5. Again, none of the pleadings in Jackson I, Jackson II and Jackson III, a series of cases initiated on March 12, 2009 - more than a year and a half ago - have been submitted along with a proper filing fee or a complete IFP application.

On April 14, 2010, this Court issued an order in Jackson III denying Plaintiff's request to reopen that matter and also denying him injunctive relief. See id., Docket Entry No.6 Specifically, the Court rejected the claim that cases were brought by separate individuals as the litigant in Jackson I identified himself to the Clerk as "John Jackson, ID # 33190-037, confined at the F.C.I. Fort Dix," see Jackson I, Docket, and the litigant in Jackson II and Jackson III identified himself as "JOHN DOUGLAS JACKSON, ID # 33190-037, confined at the F.C.I. Fort Dix." See Jackson II and Jackson III, Dockets. Therefore, Plaintiff's request to reopen Jackson III on the grounds that Plaintiff was a litigant other than the plaintiff in Jackson II was deemed without merit and denied. See Jackson III, Docket Entry No. 6.

In addition, the Court expressed its concern over Plaintiff's year-long persistent refusal to submit IFP applications in Jackson I, Jackson II and Jackson III or to prepay his filing fee in either one of this matters, as well as with Plaintiff's attempts to proliferate -- without any reason -- the number of his civil actions initiated in this District. The Court, therefore, directed Plaintiff to submit a complete IFP application or his filing fee and refrain from initiation of duplicative actions. See id. Giving Plaintiff one last chance, this Court extended Plaintiff's time to submit his IFP application or to prepay his filing fee in Jackson II. See id. Plaintiff's IFP application was then duly filed, although it was docketed in the Jackson III matter. The Court, however, will construe this submission as made for the purposes of the Jackson II matter and will grant Plaintiff IFP status for the purposes of the instant Jackson II proceedings, and will direct corresponding installment collections from Plaintiff's prison account. The Jackson I action (with IFP collections accruing) and the Jackson III action (with no IFP collections accruing) will both remain terminated.

Having conducted a procedural overview, this Court now turns to the substantive history of Plaintiff's actions.


A. Challenges Raised and Dismissed in Jackson I

As noted supra, Plaintiff's initiated a series of actions in this District starting with a civil complaint in Jackson I. Since Plaintiff's challenges raised in Jackson I were examined substantively by this Court when he submitted his amended complaint in Jackson I, it appears warranted to replicate the Court's analysis in the instant Memorandum Opinion for the purposes of comparing Plaintiff's claims raised in the amended complaint filed in Jackson II, the set of pleadings currently before this Court.

Specifically, in Jackson I, the Court observed as follows:

Plaintiff's Amended Complaint names, as Defendants in this action, the following persons: (a) Warden Grondolsky ("Grondolsky"); (b) Doctor Seabur ("Seabur"); (c) Mr. Spalding ("Spalding"); (d) Ms. Lopez; (e) Ms. Cane; (f) Mr. Sutterland ("Sutterland"); and (g) a certain Jane Doe ("Doe") who, apparently, signed certain documents with inscription reading "mmm."

Plaintiff's allegations could be summarized as follows: at the time of his transfer from FCI Big Spring to the place of his current confinement, FCI Fort Dix, Plaintiff arrived to Fort Dix with already established diagnoses of uveitis, glaucoma, photophobia, cataract, and sarcoidosis. In light of Plaintiff's diagnoses, Plaintiff had surgery while at FCI Big Spring, and ongoing treatment in the form of three types of eye drops and medical monitoring of Plaintiff's eye condition. Upon his arrival at For Dix, Plaintiff informed the prison officials of his diagnoses and requested refills of the three prescribed eye drops.

Plaintiff's request was approved and, thirty [days] after his arrival to Fort Dix, he was examined by Defendant Seabur. However, Plaintiff alleges that, after an initial prompt refill of his prescription, Plaintiff's requests for following refills were delayed on numerous occasions for non-medical reasons. In addition, Plaintiff asserts that, when his eye condition began deteriorating and resulted in burning, itching and pain in the eyes, Defendants denied Plaintiff's request to be examined by an ophthalmologist, and his condition continued to be monitored by Defendant Seabur, who is an optometrist who, seemingly, either conducted eye pressure checks less frequently than what Plaintiff desired or never conducted these checks. Plaintiff asserts that, as a result of insufficient medical treatment, he lost vision in his left eye.

Plaintiff's allegations against Defendants other than Seabur read as follows:

The facts of this case are very simplistic. Clearly, all the Defendants named in this Complaint played a part in the denial of Plaintiff's reasonable request for adequate medical care, and treatment, that resulted in a devastating loss of vision to Plaintiff's left eye, with possible irreparable harm and serious danger to his right eye, whatsmore [sic]. Defendants all played a part in intentionally imparing [sic] and impeding Plaintiff's efforts in receiving the adequate eye care via an ophthalmologist which exposed Plaintiff to undue suffering and threat to tangible injury when all Defendants had full intellectual knowledge of Plaintiff's chronic eye disease, blindness to his left eye, and Plaintiff's urgent need for the proper medical care, via a treatment plan. . . . Ms. Lopez, Mr. Spalding, Ms. Cane intentionally refused to refer Plaintiff to an ophthalmologist who was qualified to provide Plaintiff with the care that he needed. . . . Plaintiff made a written request known to Ms. Lopez . . . explaining to her in full detail about his chronic eye disease, and what Dr. Seabur . . . advised him to bring his urgent request to see an ophthalmologist to her attention. Ms. Lopez . . . never responded. Plaintiff seen Ms. Cane at the lunch main-line and explained his situation to her that he could not see out of his left eye, that he needed to see a specialist, because Dr. Seabur said there was nothing he could do. Ms. Cane specifically advised plaintiff that Dr. Seabur was only an optometrist, and not an ophthalmologist. . . . Plaintiff then spoke with Mr. Spalding about his complications from sarcoidosis and his loss of vision, in his left eye. Mr. Spaldings response to Plaintiff was very unprofessional and opprobrious, Spalding replied to plaintiff in a very acrimonious tone of voice asking Plaintiff "Who do you think you are? You don't get to see the Doctor you want to see, and you don't impress me with your big words. Plaintiff was absolutely mortified. Plaintiff's medical treatment plan was denied for non-medical reasons. The Jane Doe administrator remedy coordinator . . . and Mr. Suterland erected arbitrary and burdensome procedures that resulted in interminable delays and outright denials of adequate medical care to Plaintiff.

Personal involvement by a defendant is an indispensable element of a valid legal claim; such personal involvement may exist only where the named defendant violated the plaintiff's rights either by executing the acts at issue himself or herself, or by directing others to violate the plaintiff's rights. See Baker v. Monroe Township, 50 F.3d 1186, 1190-91 (3d Cir. 1995); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Conversely, where no personal involvement by the defendant is asserted, the plaintiff's claim against that defendant is subject to dismissal. Rode, 845 F.2d at 1207. Thus, it is well established that supervisory liability cannot be imposed under § 1983 on a respondeat superior theory. See Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "'A defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior.'" Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Personal involvement can be shown through allegations that a defendant directed a deprivation of a plaintiff's constitutional rights, see id.; Monell, 436 U.S. at 694-95 (1978), or if the supervisor implemented deficient policies and was deliberately indifferent to the resulting risk or the supervisor's actions and inactions were "the moving force" behind the harm suffered by the plaintiff. See Sample v. Diecks, 885 F.2d 1099, 1117-118 (3d Cir. 1989); see also City of Canton v. Harris, 489 U.S. 378 (1989); Heggenmiller v. Edna Mahan Corr. Inst. for Women, No. 04-1786, 128 Fed. App'x 240 (3d Cir. 2005).

Plaintiff has a protected right in being incarcerated at a place of confinement conforming to the standards set forth by the Eighth Amendment. The Constitution "does not mandate comfortable prisons," Rhodes v. Chapman, 452 U.S. 337, 349 (1981), but neither does it permit inhumane ones, and it is now settled that "the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31 (1993). In its prohibition of "cruel and unusual punishments, the Eighth Amendment . . . imposes duties on prison officials, who must provide humane conditions of confinement; prison officials . . . must take reasonable measures to guarantee the safety of the inmates." Hudson v. Palmer, 468 U.S. 517, 526-527 (1984), see Helling, 509 U.S. at 31-32; Washington v. Harper, 494 U.S. 210, 225 (1990); Estelle v. Gamble, 429 U.S. 97, 103 (1976). The Eighth Amendment prohibits conditions which involve the unnecessary and wanton infliction of pain or are grossly disproportionate to the severity of the crime warranting imprisonment. Rhodes, 452 U.S. at 346, 347. The cruel and unusual punishment standard is not static, but is measured by "the evolving standards of decency that mark the progress of a maturing society." Rhodes, 452 U.S. at 346 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). Thus, to prevail on a medical care claim under the Eighth Amendment, an inmate must show that the defendants were deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97; Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Persistent severe pain qualifies as a serious medical need. A medical need is serious where it "has been diagnosed by a physician as requiring treatment or is . . . so obvious that a lay person would easily recognize the necessity for a doctor's attention." Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988). "Deliberate indifference" also exists "where a prison official: (1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment." Rouse, 182 F.3d at 197. Furthermore, deliberately delaying necessary medical diagnosis for a long period of time in order to avoid providing care may constitute deliberate indifference that is actionable. See Durmer v. O'Carroll, 991 F.2d 64 (3d Cir. 1993). Deliberate indifference is also found where officials erect arbitrary and burdensome procedures that result in interminable delays and denials of medical care to suffering inmates. See Monmouth County Correctional Institution Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987), cert. denied 486 U.S. 1006 (1998). However, neither inconsistencies or differences in medical diagnoses, nor refusal to consider inmate's self-diagnoses, to summon the medical specialist of the inmate's choice, to perform tests or procedures that the inmate desires, to explain to the inmate the reason for medical action or inaction, or to take measures to ensure against a hypothetical future medical problem cannot amount to cruel and unusual punishment. See White v. Napoleon, 897 F.2d 103 (3d Cir. 1990) (mere disagreements over medical judgment do not state Eighth Amendment claims); Jones v. Lockhart, 484 F.2d 1192 (8th Cir. 1973) (allegations of mere differences of opinion over matters of medical judgment fail to state a federal constitutional question); Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970) (a difference of opinion between physician and patient did not sustain a claim under § 1983; the conduct must be so harmful that it should be characterized as a barbarous act that shocked the conscience); Patterson v. Lilley, 2003 U.S. Dist. LEXIS 11097 (S.D.N.Y. June 20, 2003) (defendants could only be held deliberately indifferent to an existing serious medical condition, not a speculative future medical injury); Goff v. Bechtold, 632 F. Supp. 697 (S.D. W. Va. 1986) (denial of preferred course of treatment does not infringe constitutional rights); accord McClung v. Camp County, 627 F. Supp. 528 (E.D. Tex. 1986) (evidence that diabetic inmate was given medication 3 times per day instead of prescribed 4 daily doses was insufficient to constitute constitutional violation in absence of demonstrated harm); Jefferson v. Douglas, 493 F. Supp. 13 (W.D. Okla. 1979) (inmate's difference of opinion with prison medical staff as to proper diet he was to receive for his diabetes did not constitute cruel and unusual punishment to sustain claim under 42 U.S.C. § 1983); Smith v. Sator, 102 Fed. App'x 907 (6th Cir. 2004) (where a prisoner alleged that defendants did not provide various specialized medical tests that the prisoner found to be necessary based on his reading of medical literature, the court held that the complaint was frivolous because refusal to provide specialized tests amounted to nothing more than a difference of opinion regarding the medical diagnosis and treatment and did not rise to the level of an Eighth Amendment violation); Lopez v. Kruegar, 1990 U.S. Dist. LEXIS 6808 (E.D. Pa. June 4, 1990) (where plaintiff stated that he was receiving medication but felt that additional medical tests should be taken, his allegations were directed at the wisdom or quality of treatment and did not state a claim); Coleman v. Crisp, 444 F. Supp. 31 (W.D. Okla. 1977) (difference of opinion between plaintiff and doctors concerning availability of treatment and medication did not establish violation of constitutional right or sustain claim); McNeil v. Redman, 21 F. Supp. 2d 884 (C.D. Ill. 1998) (an inmate has no constitutional right to see a doctor on demand; the decision whether to summon a doctor, like the question of whether a certain diagnostic technique or form of treatment should be prescribed, "is a classic example of a matter for medical judgment") (quoting Estelle, 429 U.S. 97). Moreover, the allegations that the inmate was provided with medical care, but the care was "inadequate," fail to state a cognizable claim. See Gatewood v. Hendrick, 368 F.2d 179 (3d Cir. 1966), cert. denied, 386 U.S. 925 (1967) (prisoner who did not claim that he was denied any medical care but rather that he received only inadequate medical care, and gave no indication that he sustained serious physical injury as result of alleged inadequate treatment, failed to state claim for relief); see also Alsina-Ortiz v. Laboy, 400 F.3d 77 (1st Cir. 2005)(a doctor's failure to respond to certain request for services by the inmate, in context of the doctor's continued and regular services, did not deprive the inmate of any meaningful treatment); Hasty v. Johnson, 103 Fed. App'x 816 (5th Cir. 2004) (prisoner failed to state a claim for deliberate indifference to his medical needs where he alleged that medical personnel provided him with purportedly less efficacious drugs for gastroesophageal reflux disease; the decisive fact was that he received "a" treatment); Church v. Hegstrom, 416 F.2d 449 (2d Cir. 1969) (mere negligence does not suffice to support a § 1983 action); Watson v. Weldon, 2000 U.S. Dist. LEXIS 11109 (D.S.C. Jan. 12, 2000) (prisoner's claim that prison doctor's slow treatment of plaintiff's toenail fungus was cruel and unusual punishment failed to state a serious medical condition sufficient to support a claim for relief).

Furthermore, acts of verbal harassment cannot qualify as violations of the Eighth Amendment. See Stepney v. Gilliard, 2005 U.S. Dist. LEXIS 31889, at *19 (N.J.D. Dec. 8, 2005) ("Verbal harassment and taunting is neither 'sufficiently serious' nor 'an unnecessary and wanton infliction of pain' under the common meaning of those terms.

'Verbal harassment or profanity alone . . . no matter how inappropriate, unprofessional, or reprehensible it might seem,' does not constitute the violation of any federally protected right and therefore is not actionable under Section 1983") (quoting Shabazz v. Pico, 994 F. Supp. 460, 474 (S.D.N.Y. 1998), and citing Collins v. Graham, 377 F. Supp. 2d 241, 244 (D. Me. 2005)); see also Robinson v. Taylor, 2005 U.S. Dist. LEXIS 20951, at *8-9 (D. Del. Sept. 26, 2005) ("Mere verbal harassment does not give rise to a constitutional violation; even if it is inexcusable and offensive, it does not establish liability under section 1983) (quoting McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001) and citing Moore v. Morris, 116 Fed. App'x 203, 205 (10th Cir. 2004), Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997), and Prisoners' Legal Ass'n v. Roberson, 822 F. Supp. 185, 187-89 (D.N.J. 1993)); Abuhouran v. Acker, 2005 U.S. Dist. LEXIS 12864, at *15 (E.D. Pa. June 29, 2005) ("It is well established . . . that . . . verbal harassment, . . . standing alone, does not state a constitutional claim") (citing Dewalt v. Carter, 224 F.3d 607, 612 (7th Cir. 1999); Williams v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999); Maclean v. Secor, 876 F. Supp. 695, 698 (E.D. Pa. 1995)); Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979) (dismissing prisoner's claim that defendant laughed at prisoner and threatened to hang him).

Finally, the Fourteenth Amendment does not guarantee inmates a right to an investigation or a response from prison officials as to administrative grievances (or to any replies by prison officials to inmates' other complaints or demands of a grievance nature). See, e.g., Wilson v. Horn, 971 F. Supp. 943, 947 (E.D. Pa. 1997), aff'd, 142 F.3d 430 (3d Cir. 1998); McGuire v. Forr, 1996 U.S. Dist. LEXIS 3418 at *2, n.1 (E.D. Pa. Mar. 21, 1996), aff'd, 101 F.3d 691 (3d Cir. 1996); see also Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994), cert. denied, 514 U.S. ...

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