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Prince A.Z.K. Adekoya Ii v. Michael Chertoff.


March 31, 2011


The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.



In this civil action, plaintiff Prince A.Z.K. Adekoya II ("Adekoya") alleges that defendants Patricia Moscatelli ("Moscatelli"), a medication rounds officer at the Bergen County Jail ("BCJ"), and Ann Marie Klein ("Klein"), a nurse at the BCJ, violated his Eighth Amendment rights by failing to provide him with adequate medical care. Specifically, Adekoya contends that the defendants failed to provide him with Motrin for a hand injury during the three weeks he was incarcerated at the BCJ in 2008 and that this constituted deliberate indifference to his serious medical needs.*fn1 He also alleges a violation of substantive due process and charges Moscatelli and Klein with civil conspiracy. They now move for summary judgment.


From May 23, 2008 to June 14, 2008, Adekoya was an immigration detainee housed at the BCJ in Hackensack, New Jersey. [Am. Compl., D.E. 7, at ¶ 26.] Adekoya complains that, while at the BCJ, he could not eat because he was not provided Halal meals and, because he was not eating, he could not take the Motrin prescribed for a pre-existing hand injury. [Am. Compl. ¶ 26; Adekoya Dep., June 15, 2010 ("Pl.'s Dep."), D.E. 47, ex. E at 6:3--6, 8:19--25, and 9:1--7.]

Two months before arriving at the BCJ, Adekoya fractured his hand and his doctor at the time recommended one session of physical therapy in order to teach him self-therapy. [Pl.'s Dep. at 6:3--5; Am. Compl., ex. A at 1.]

Adekoya states that at the BCJ, Klein and Moscatelli saw the condition of his hand and knew that he was not being medically treated. [Am. Compl. at ¶ 20--21.] Adekoya's medical records indicate that Klein gave Adekoya Motrin prescribed for his hand on at least two occasions, June 2 and June 4, 2008. [Moving Br., D.E. 47, ex. B.] His medical records also indicate that, on several occasions, Adekoya was advised not to take hismedication because he had refused to eat and, according to Klein, the Motrin had to be taken with food. [Pl.'s Dep. 8:1--

14.] In his deposition, Adekoya concedes that he received and took his medication on some days [Pl.'s Dep. 7:18--25], and on other days he refused his medication because he was on a hunger strike. [Moving Br. ex. B.]

Adekoya initially brought this action in 2008, alleging thatMoscatelli and Klein, along with eighteen other defendants, failed to provide him with adequate medical care, deprived him of religious meals, deprived him of access to the library, and conspired against him to violate his constitutional rights. In a March 4, 2009 opinion [D.E. 4], the Court rejected Adekoya's contentions regarding his religious meals, finding that he had no cognizable constitutional claim to them. In an opinion of September 16, 2009 [D.E. 10], the Court allowed Adekoya's medical care claim in his amended complaint [D.E. 7] to proceed against Moscatelli and Klein, as well as defendant John Doe Medical Director at Bergen County Jail.*fn2 The amended complaint, filed pursuant to 42 U.S.C. § 1983, alleges violation of his Eighth Amendment right to be free of cruel and unusual punishment as well as of his Fourteenth Amendment substantive due process rights. [Am. Compl. at ¶ 27.] Additionally, Adekoya alleges a civil conspiracy by defendants to deprive him of his constitutional rights. [Am. Compl. at ¶ 29.] Adekoya's Eighth Amendment claim centers on his allegation that he was denied Motrin to deal with pain in his hand and denied the physical therapy treatment that his doctor had recommended prior to his incarceration. [Am. Compl. at ¶ 27.] Although he complains that he could not take his medication without his Halal meals [Id. at ¶ 20--21], the Court, as noted above, already has held he did not have a constitutional right to these meals.

Defendants Moscatelli and Klein move for summary judgment, arguing that there is no genuine issue of material fact as to the allegations that they violated Adekoya's constitutional rights, and that he has not met the standard for an Eighth Amendment violation, a Fourteenth Amendment violation, or a civil conspiracy claim. [Moving Br. at 5.] Specifically, Moscatelli and Klein assert that Adekoya's medical needs do not meet the "sufficiently serious" requirement for Eighth Amendment violations [Moving Br. at 7], and contend that they were not deliberately indifferent to his medical needs because their actions-in light of their professional medical judgment-were reasonable. [Moving Br. at 8--10.] With regard to Adekoya's civil conspiracy claim, Moscatelli and Klein assert that Adekoya has not provided sufficient factual allegations concerning any agreement or plan to conspire. [Moving Br. at 11--13.] Finally, regarding Adekoya's Fourteenth Amendment claim, Moscatelli and Klein contend that Adekoya has not established that their conduct meets the required "shocks the conscience" standard. [Moving Br. at 14, 17.]

Legal Standard

Summary judgment is appropriate when the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact." F. R. Civ. P. 56(a). "[U]nless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," there is no issue for the fact-finder at trial and summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252.

When analyzing a motion for summary judgment, "inferences to be drawn from the underlying facts. . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654 (1962)). The moving party must present evidence that there is no genuine issue of material fact, and the nonmoving party must then respond with "‗specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)).

Moscatelli and Klein argue that there is no genuine dispute as to: (1) whether they provided Adekoya with adequate medical care in accordance with the Eighth Amendment; (2) whether they provided Adekoya with adequate medical care in accordance with his substantive due process rights under the Fourteenth Amendment; and (3) whether they conspired to deprive Adekoya of these constitutional rights.


1. Section 1983 Actions

Section 1983does not provide substantive rights, but rather it provides a means by which a plaintiff can seek relief for violations of rights created by federal law. Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). A cause of action under § 1983 is a claim for damages against a state official for alleged violations of constitutional rights. The language of 42 U.S.C. § 1983 states in relevant part:

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. . .

To establish a § 1983 violation, a plaintiff must demonstrate that (1) the challenged conduct was committed by a person acting under state law and that (2) the conduct deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United States. Groman, 47 F.3d at 633. There is no dispute that Moscatelli and Klein are state actors for purposes of § 1983.

2. Adekoya's Eighth Amendment Claim

Treatment provided by prison officials is subject to review under the Eighth Amendment prohibition of cruel and unusual punishment. Farmer v. Brennan, 511 U.S. 825, 832 (1970).

The Supreme Court has established that failing to provide adequate medical care or any medical care at all is a violation of the Eighth Amendment. Christy v. Robinson, 216 F. Supp. 2d 398, 412 (D.N.J. 2002) (citing Estelle v. Gamble, 429 U.S. 97, 104--05 (1976)). To establish an Eighth Amendment violation, a plaintiff must satisfy two requirements.

First, the prisoner's medical needs must be "sufficiently serious." Brown v. Diguglielmo, No. 09-3494, 2011 LEXIS 5752, at *8 (3d Cir. 2011) (quoting Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003)). The Third Circuit has defined "sufficiently serious" to be a condition that either is diagnosed by a medical professional as requiring treatment or is so apparent that a lay person easily would recognize it as requiring medical attention. Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987); Pace v. Fauver, 479 F. Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir. 1981).

Second, to violate the Eighth Amendment the prison official must act with the requisite state of mind, namely, that of deliberate indifference to the prisoner's medical needs. Lanzaro, 834 F.2d at 347. To establish deliberate indifference, the official must have known that the inmate faced a substantial risk of serious harm, and failed to take reasonable measures to avoid it. Farmer, 511 U.S. at 847. Prison officials aware of the substantial risk who respond reasonably to that risk are not liable for deliberate indifference even if, in the end, the harm is not avoided. Id. at 844. Courts generally will not find deliberate indifference when some level of medical care has been provided, Christy, 216 F. Supp. 2d at 414, and they grant significant latitude to the decisions of prison officials to avoid ‗second guessing' the adequacy of a course of treatment based on sound professional judgment. Inmates of Alleghany Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979).

Here, Klein, who was responsible for prescribing Adekoya 600mg of Motrin after he complained of pain, contends that Adekoya's injury was not serious. [Moving Br., D.E. 47 at 6-- 7.] The Court agrees. Adekoya asserts that his hand surgeon recommended "intensive and immediate therapy and medical attention" [Pl.'s Affirm. in Opp'n to Mot. for Summ. J., D.E. 48 at 6], but he presents no evidence to show that he satisfies the seriousness requirement through a medical professional's diagnosis. Adekoya's own declaration of the seriousness of his injury is insufficient to meet the "sufficiently serious" standard. Potter v. Deputy Attorneys, 304 Fed. Appx. 24, 28 (3d Cir. 2008) (stating that the plaintiff "failed to set forth sufficient evidence suggesting that he had any real ‗serious medical need' or that his health care providers acted with ‗deliberate indifference' to that need . . . [as] he cannot rest upon mere unsupported allegations when faced with a motion for summary judgment") (emphasis added). Adekoya also has failed to adduce facts to demonstrate that his condition was serious such that a layperson "would easily recognize the necessity for a doctor's attention." Pace, 479 F. Supp. 458. Adekoya's complaint-that he did not receive Motrin for his hand-does not suggest the kind of "serious" injury set out by the Third Circuit in Lanzaro.

Nor has Adekoya satisfied the second requirement for an Eighth Amendment violation by showing that prison officials were deliberately indifferent to his medical needs and unreasonably disregarded a substantial risk of serious harm. See Farmer, 511 U.S. at 847. He alleges that Moscatelli, the medical rounds officer, was aware of his medical issues and failed to follow through with her promise to look into his situation and speak to an Immigration and Customs Enforcement officer. [Am. Compl., ¶ 20.] Adekoya also alleges that Klein was aware of his situation but failed to ensure that he received Halal meals and his medical treatment. [Am. Compl. ¶ 21; Pl.'s Affirm. in Opp'n to Mot. for Summ. J., D.E. 48, ¶ 2.]

Adekoya's medical records from the BCJ show that Klein gave him medication on two occasions. [Moving Br., Ex. B.] These records also indicate that Adekoya refused his medication on several other occasions. Id. Even assuming arguendo that Adekoya had a constitutional right to Halal meals, defendants Moscatelli and Klein deny having had any authority over the food he was served, and Adekoya has not presented any evidence that they did.

Likewise, even accepting Adekoya's position that both defendants failed to follow through on promises, this alleged failure does not constitute deliberate indifference. "In the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute ‗an unnecessary and wanton infliction of pain' or to be ‗repugnant to the conscience of mankind.'" Estelle, 429 U.S. at 105--06, 107 (holding that prison medical officials' failure to diagnose and adequately treat a back injury did not constitute an Eighth Amendment violation, and that the officials' failing to pursue other medical options did not constitute deliberate indifference but rather was "a classic example of a matter for medical judgment.").

Here, Klein gave Adekoya medication on two occasions when he had eaten. [Moving

Br., ex. B.] On other occasions, Adekoya either refused his medication, or else Klein advised him not to take the medication on an empty stomach because of the pain he might encounter. [Pl.'s Dep. 8:4--14.] Klein identified a legitimate medical concern for advisingAdekoya not to take his medication without food, and the Court is satisfied that her decision falls within the bounds of her professional judgment. Courts provide "significant latitude" to medical decisions and give great deference to the professional judgment of medical staff. Pierce, 612 F.2d at 762. In line with this deference, courts will generally not find deliberate indifference when some level of medical care has been provided. Christy, 216 F. Supp. 2d at 414.

Likewise, the blanket assertion that both defendants did not keep their promises does not show that Moscatelli and Klein disregarded a substantial risk of serious harm by failing to take reasonable measures. Even drawing all inferences in Adekoya's favor, he has failed to make a showing that Moscatelli and Klein were deliberately indifferent to his medical needs or failed to provide adequate medical care in line with the requirements of the Eighth Amendment. Accordingly, summary judgment is appropriate as to Adekoya's Eighth Amendment claim.

3. Adekoya's Fourteenth Amendment Substantive Due Process Claim

To succeed on a substantive due process claim, a plaintiff must show that the government official's conduct amounted to an abuse of power that "shocks the conscience." Fagan v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (en banc). The Supreme Court has held that conduct "shocks the conscience" when it offends those "canons of decency and fairness which express the notions of justice." Rochin v. California, 342 U.S. 165, 169 (1952).

Under the "shocks the conscience" standard, the abuse of power must be so extreme and so egregious as to be intended to injure in a way unjustifiable by any government interest. Sacramento v. Lewis, 523 U.S. 833, 848--49 (1988). In Rochin, for example, the Court found that the forced pumping of a suspect's stomach in order to obtain evidence of possession of illegal substances did meet this high threshold. 342 U.S. at 172.

The Court need not belabor this point. Adekoya did not receive the exact medical treatment that he wanted. He did receive alternative medical care, however, and nothing in the record suggests the kind of behavior that has been found to "shock the conscience." Adekoya's Fourteenth Amendment claim is dismissed.

4. Conspiracy Claim

Plaintiff's remaining claim is that defendants Moscatelli and Klein conspired to deprive him of his constitutional rights. (Am. Compl., ¶ 29). A civil conspiracy claim under § 1983 is "not actionable without an actual violation of § 1983." Fioriglio v. City of Atlantic City, 996 F. Supp. 379, 385 (D.N.J 1998). Because this Court has not found a violation of § 1983, the civil conspiracy claim must fail. Moreover, there is a failure of proof: Adekoya merely states that Moscatelli and Klein conspired against him (Am. Compl., ¶ 21), and has not produced evidence that they had any meeting or mutual understanding, or that they collaborated in any way to carry out a plan. Accordingly, Moscatelli and Klein are entitled to summary judgment.


For the reasons set forth above, the Court grants defendants Moscatelli's and Klein's motion for summary judgment [D.E. 47] and dismisses the amended complaint in full. [D.E. 7.]

Katharine S. Hayden, U.S.D.J.

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