The opinion of the court was delivered by: Kugler, United States District Judge:
Plaintiff is involuntarily committed at the Ancora Psychiatric Hospital ("Ancora"). Plaintiff claims that he was physically restrained and forcibly medicated without justification. He asserts various claims against eight Ancora employees related to his restraint and forced medication. Defendants now move to dismiss the Second Amended Complaint for failure to state a claim under Rule 12(b)(6). (Doc. No. 28). Plaintiff opposes Defendants' motion to dismiss and moves to seal medical records that he submitted in opposition to Defendants' motion to dismiss. (Doc. No. 35). For the reasons discussed below, Defendants' motion to dismiss is granted in part and denied in part and Plaintiff's motion to seal is granted.
According to Plaintiff, at approximately 8:00 p.m., on April 6, 2008, Defendant Constance Kellum, a "human services assistant" who was assigned to monitor Plaintiff's hall, noticed Plaintiff talking to another patient and showing the patient an unidentified object. (Second Am. Compl. ¶ 24). Kellum asked Defendant Marie Ann Cabasa, the "charge nurse" assigned to Plaintiff's hall, if she could search Plaintiff's room for contraband while Plaintiff was in the shower. (Id. ¶ 25). As a result of her search, Kellum found and confiscated two tablespoons of coffee from Plaintiff's room.
Plaintiff was notified that the staff had confiscated the coffee. Plaintiff became agitated and spoke to a staff member about harming himself.*fn2 Cabasa subsequently received a telephone call from Ancora's Human Services Police informing her that Plaintiff had called 9-1-1 to report concerns regarding his treatment.*fn3 Cabasa then told Plaintiff that he should speak with the medical staff and the public advocate rather than the police regarding his concerns. Plaintiff alleges that this was meaningless advice because neither the medical team assigned to Plaintiff nor the public advocate were available that evening.
In response to Plaintiff's agitation and threats to harm himself, Cabasa asked Plaintiff whether he wished to receive an Haldol intramuscular injection per his doctor's prescription.*fn4
Plaintiff refused, but Cabasa nevertheless attempted to administer the injection. Plaintiff tried to physically prevent the injection and "fought" with the staff. (Pl.'s Opp. Br., Ex. A, at NJ001). Consequently, Cabasa ordered a "code Blue," which involved nine staff members physically restraining Plaintiff so that Cabasa could administer the injection. Plaintiff alleges that Cabasa participated in restraining him. Plaintiff does not identify the other staff members involved in the restraint, nor does he allege that any Defendant other than Cabasa participated in restraining him.
During the struggle "one or more of the defendants" twisted Plaintiff's ankle to the point that he suffered a "trimalleolar" fracture.*fn5 (Second. Am. Compl. ¶ 45). Plaintiff also alleges that after administering the injection, the staff placed Plaintiff in a "four-point restraint," which involves trying down his hands and ankles to prevent him from moving. (Id.). Cabasa's report from the incident states that Plaintiff suffered "no injuries." (Id. ¶ 47). Plaintiff claims that he was held in the restraint for several hours, and that he pleaded with the staff to address his ankle injury, but they ignored him. A separate report by Defendant Young Chang, M.D., also states that Plaintiff had no "injuries." (Id.). However, a report by Defendant Samuel Sarmiento, M.D., dated April 7, 2008, notes that Plaintiff sustained an ankle injury, orders that Plaintiff use a wheelchair, and schedules an ankle x-ray. (Id. ¶ 47). A report by Shailendra Desai, M.D., dated April 7, 2008, diagnosed Plaintiff with a trimalleolar fracture of the right ankle. (Id. ¶ 50). According to Plaintiff, notwithstanding Dr. Desai's diagnosis, Ancora did not send him for an orthopedic evaluation for five days and prescribed him only 600 milligrams of Motrin for pain.
On April 11, 2008, an orthopedic surgeon evaluated Plaintiff's ankle and recommended "surgical management" of the fracture. (Id. ¶ 54). Plaintiff underwent surgery on April 14, 2008. The surgeon installed a seven-hole plate to reduce the fracture. Plaintiff still experiences pain, swelling, and limited mobility as a result of the injury.
Plaintiff filed the Complaint in March 2010 against Ancora, the State of New Jersey, the New Jersey Commissioner of the Department of Human Services, and numerous individual Ancora employees. Plaintiff amended the Complaint twice. As a result of Plaintiff's amendments, the only remaining Defendants are the following eight Ancora employees: Marie Ann Cabasa, Lori Gardenshire, Constance Kellum, Raymond Fisher, Jeanne Coffee Senkovic, Samuel Sarmiento, M.D., Dipesh Patel, M.D., and Young Chang, M.D.
Plaintiff asserts the following claims against all eight Defendants: (1) "Violation of the Civil Rights Act of 1964;" (2) "Violation of the 14th Amendment;" (3) "Violation of 42 U.S.C. § 1985 (Conspiracy with Civil Rights);" (4) "Assault and Battery;" (5) "Doctrine of Respondeat Superior;" (6) "The Failure to Implement the Public Policy;" (7) "Violation of an Express or Implied Contract;" (8) "Negligence;" and (9) "Liability of Defendants Jointly, Severally or Individually." In lieu of filing an Answer, Defendants moved to dismiss Count I as to all Defendants, Count II as to all Defendants except Cabasa, Count III as to all Defendants, Count IV as to all Defendants, Count V as to all Defendants, Count VI as to all Defendants, Count VII as to all Defendants, Count VIII*fn6 as to all Defendants except Cabasa, and Count IX as to all Defendants.
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action for failure to state a claim upon which relief can be granted. With a motion to dismiss, "'courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In making that determination, a court must conduct a two-part analysis. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009); Fowler, 578 F.3d at 210-11. First, the court must separate factual allegations from legal conclusions. Iqbal, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Second, the court must determine whether the factual allegations are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 1950. Determining plausibility is a "context-specific task" that requires the court to "draw on its judicial experience and common sense." Id. A complaint cannot survive where a court can only infer that a claim is merely possible rather than plausible. See id.
A.Count II -- Plaintiff's Fourteenth Amendment Claims under 42 U.S.C. § 1983
Count II asserts a claim under § 1983 against all Defendants for violating the Fourteenth Amendment by depriving him of liberty without due process.*fn7 Plaintiff asserts three Fourteenth Amendment violations: (1) his forced medication; (2) his forcible restraint; and (3) Defendants' failure to timely treat his ankle injury. All Defendants except Cabasa move to dismiss this claim. The moving Defendants do not argue that Plaintiff's allegations fail to establish that someone violated Plaintiff's Fourteenth Amendment rights. Rather, Defendants argue that there is no vicarious liability under § 1983, and Plaintiff does not allege that they participated in the purported constitutional violations.*fn8
There is no vicarious liability under § 1983. See Iqbal, 129 S. Ct. at 1949 ("vicarious liability is inapplicable to . . . § 1983 suits"). A government official is liable under § 1983 only if he personally violates the plaintiff's constitutional or statutory rights under the color of state law. Id. "A plaintiff must plead that each Government-official defendant, through the official's own inidividal actions, has violated the Constitution." Id. Thus, an official is not liable under § 1983 if he simply had "knowledge" or "acquiesced" in another official's unlawful conduct. Id. at 1957.
Nevertheless, after the Supreme Court's ruling in Iqbal, the Third Circuit recognized two theories of "supervisory liability" under § 1983. See Santiago v. Warminster Twp., 629 F.3d 121, 129 n. 5 (3d Cir. 2010). First, "supervisors can be liable if they 'established and maintained a policy, practice or custom which directly caused [the] constitutional harm.'" Id. (quoting A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Second, supervisors can be "liable if they 'participated in violating plaintiff's rights, directed others to violate them, or, as the person[s] in charge, had knowledge of and acquiesced in [their] subordinates' violations.'" Id. (quoting A.M. ex rel. J.M.K., 372 F.3d at 586). Although the Third Circuit has "expressed uncertainty as to the viability and scope of supervisory liability after Iqbal," it has yet to alter those two tests. Santiago, 629 F.3d at 130 n. 8 (stating that it was unnecessary to address the effect of Iqbal on the two tests because the particular case on appeal failed to satisfy even the pre-Iqbal standard). Nevertheless, in view of Iqbal, courts in this District have recognized that "personal involvement by a defendant remains the touchstone for establishing liability for the violation of a plaintiff's constitutional right." Campbell v. Gibb, No. 10-6584, 2011 U.S. Dist. LEXIS 73071, at *25 (D.N.J. July 7, 2011).
The Court reviews the legal elements of all three Fourteenth Amendment violations and analyzes whether Plaintiff pleads facts sufficient to state a claim against each named Defendant.*fn9
1.Forced Medication and Physical Restraint
Plaintiff claims that Defendants violated his Fourteenth Amendment substantive and procedural due process liberty interests by physically restraining him and medicating him against his will.
"[P]atients committed to state custody have a constitutionally protected liberty interest [under the Fourteenth Amendment] in being free from unreasonable bodily restraints." Brandt v. Monte, 626 F. Supp. 2d 469, 475 (D.N.J. 2009) (citing Youngberg v. Romeo, 457 U.S. 307, 315 (1982)). That liberty interest includes the right to refuse administration of antipsychotic drugs. See Rennie v. Klein, 720 F.2d 266, 269 (3d Cir. 1983) (applying Youngberg and concluding that involuntarily committed patients have a constitutional right to refuse treatment). The liberty interest includes both a substantive and procedural component. Brandt, 626 F. Supp. 2d at 478.
The substantive right concerns the "factual circumstances that must exist before the State may administer antipsychotic drugs to the [patient] against his will." Washington v. Harper, 494 U.S. 210, 220 (1990). "The state may override this right when the patient is a danger to himself or others." Brandt, 626 F. Supp. 2d at 476. A court in this District recently synthesized the ...