On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-287-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 6, 2011 Before Judges Grall, C.L. Miniman and LeWinn.
Plaintiff Thomas J. Ruggieri, formerly an inmate of a State Correctional facility, appeals from the denial of his motion for reconsideration of an order dismissing his complaint alleging negligence on the part of Correctional Medical Services (CMS) for failure to comply with the Affidavit of Merit Statute (AOM Statute), N.J.S.A. 2A:53A-26 to -29. He also appeals from an order denying him leave to file an amended complaint alleging a cause of action under 42 U.S.C.A. § 1983 based on deliberate indifference to his medical condition during his incarceration demonstrated by CMS and the State defendants - the State of New Jersey, the Department of Health and Senior Services (DHSS) and the Department of Corrections (DOC).*fn1 Conceding that the doctors who treated him were not negligent, plaintiff stipulated to the dismissal of his claims against them.
Plaintiff's claims against CMS and the State defendants center on allegations that the doctors who treated his spinal condition while he was incarcerated properly recommended referral to a specialist in spine surgery that was not approved by CMS or the DOC. He seeks damages on the ground that his condition worsened because his treatment was delayed.
We first consider the denial of plaintiff's motion to reconsider the dismissal of the negligence claim against CMS for failure to file an affidavit of merit. In his initial complaint, plaintiff asserts that defendants, among other things, "failed to properly monitor and treat [him] although they knew of [his] worsening condition." In opposition to CMS's motion to dismiss, plaintiff submitted materials outside the pleadings including medical records obtained in discovery indicating that a consult with a spine surgeon had been recommended but denied by CMS. CMS opposed the motion by asserting that plaintiff could not pursue a claim based on improper delay of treatment without filing an affidavit of merit, but CMS did not provide any evidence that it was a licensed health care facility. The trial court concluded that the AOM Statute applied to health care facilities whether licensed or not and dismissed the complaint on that ground.
On plaintiff's motion for reconsideration of that dismissal, he argued that the trial court erred in its interpretation of the AOM Statute and contended that it applied only to a "health care facility" licensed as such. N.J.S.A. 2A:53A-26j. Among other things, CMS argued that the AOM statute applied to a health care facility that is not licensed.
The construction of a statute is a question of law that appellate courts decide do novo. In re Liquidation of Integrity Ins. Co., 193 N.J. 86, 94 (2007). In an appeal calendared with this case and decided today, we construe the AOM Statute and, based on the statute's plain language, hold that a health care facility is not entitled to the protection of the AOM Statute unless it is licensed as such. Albrecht v. Correctional Medical Services, ___ N.J. Super. ___, ___ (App. Div. 2011) (slip op. at 9). Plaintiff made that argument on his motion for reconsideration, and the trial court erred in denying the motion without reconsidering the statutory language. For reasons stated in Albrecht, the trial court's interpretation is erroneous as a matter of law. As there is no dispute that CMS was not licensed, we reverse the denial of plaintiff's motion for reconsideration and reinstate plaintiff's negligence claim against CMS.
We turn to consider plaintiff's claim that the judge abused his discretion in refusing to allow him to amend his complaint to assert a § 1983 claim. Under Rule 4:9-1, after a responsive pleading is served, a plaintiff may amend his complaint "by leave of court which shall be freely given in the interests of justice." Nonetheless, "'there remains . . . a necessary area of judicial discretion in denying such motions where the interests of justice require.'" Young v. Schering Corp., 275 N.J. Super. 221, 232 (App. Div. 1994) (quoting Wm. Blanchard Co. v. Beach Concrete Co., 150 N.J. Super. 277, 299 (App. Div.), certif. denied, 75 N.J. 528 (1977)), aff'd, 141 N.J. 16 (1995). Thus, we review denials of motions for leave to amend for a mistaken exercise of discretion. Kernan v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998). A trial court's decision to allow amendment of a complaint "requires a two-step process: whether the non-moving party will be prejudiced, and whether granting the amendment would nonetheless be futile." Notte v. Merchants Mut. Ins. Co., 185 N.J. 490, 501 (2006).
Plaintiff filed this motion to amend after his complaint was dismissed for failure to comply with the AOM Statute and reconsideration had been denied. The judge found that the motion to amend was "just too late."
The denial of the motion as to the State defendants was correct because they are not "persons" within the meaning of 42 U.S.C.A. § 1983. Scott-Neal v. N.J. Dep't of Corr., 366 N.J. Super. 570, 575 (App. Div. 2004). CMS, however, is a "person" within the meaning of § 1983. West v. Atkins, 487 U.S. 42, 56, 108 S. Ct. 2250, 2259, 101 L. Ed. 2d. 40, 54 (1988). Because we have now reversed the denial of reconsideration and reinstated plaintiff's complaint against CMS, we also reverse the order denying plaintiff leave to amend his complaint to add a claim against CMS under § 1983 and remand for reconsideration in light of the continued prosecution of the negligence claims. If the motion is again denied, the judge shall make specific findings of fact respecting the prejudice, if any, CMS would suffer from also defending a "deliberate indifference" claim. We express no view as to the merits of CMS's claim or on the question whether that amendment is barred by the statute of limitations.
In light of our decision, the remaining issues raised by plaintiff are moot.
Affirmed in part, reversed in part, and remanded for reinstatement of plaintiff's complaint against CMS and for further ...