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Shaker v. Correctional Care Solutions Medical Department

United States District Court, Third Circuit

October 23, 2013

AHMED SHAKER, Plaintiff,
v.
CORRECTIONAL CARE SOLUTIONS MEDICAL DEPARTMENT, et al., Defendants.

MEMORANDUM OPINION

MICHAEL A. SHIPP, District Judge.

This matter comes before the Court upon Defendant Dr. Mark Heimmel's ("Dr. Heimmel" or "Defendant") Motion for Summary Judgment for failure to submit an Affidavit of Merit. (Def.'s Mot., ECF No. 43; Def.'s Moving Br., ECF No. 43-1.) Plaintiff filed correspondence on April 30, 2013, stating that incarceration prevented him from filing the affidavit. (Pl.'s Opp'n, ECF No. 47.) Finally, on May 23, 2013, the Court held a case management conference and discussed Plaintiffs failure to submit an Affidavit of Merit. The Court has carefully considered the Parties' submissions and arguments. For good cause shown, this action is dismissed for lack of diversity jurisdiction under 28 U.S.C. § 1332, and Dr. Heimmel's Motion for Summary Judgment is denied without prejudice.

I. Background

Plaintiff is a federal inmate who was incarcerated at Monmouth County Correctional Center at the time that he filed this action. (Second Amended Complaint ("Compl.") 4, ECF No. 21.)[1] The initial Complaint named as Defendant Correctional Care Solutions, LLC (improperly pled as Correctional Care Solutions Medical Department and CCS Medical Advisor). (Compl., Caption, ¶ 4b, ECF No. 1.) Plaintiff is a diabetic who asserts that he was "not receiving correct amounts of insulin." (Compl., ECF No. 21 at 5.) Plaintiff further alleges that his "diabetes is not controlled even by the lowest standards, " that he is "in a constant state of keto-acidosis", and that his "right eye has been continueing [sic] bleeding and [his] vision where [sic] to the point of blindness." ( Id. at 7.)

Plaintiff amended his Complaint on or about October 11, 2012 to add new Defendants, Stewart Green, M.D. and Associated Retinal Consultants (improperly pled as Retina Vitreous Center) and Mark Heimmel, M.D. ( Id. ) Plaintiff alleges that these Defendants provided improper medical treatment for his diabetic condition and bleeding in his right eye. (!d. at 5, 7.)

On June 28, 2013, this Court granted summary judgment in favor of Defendant

Correctional Care Solutions, LLC, on the ground that Plaintiff had failed to comply with the administrative exhaustion requirement under 42 U.S.C. § 1997c(a). See also Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004); (June 28, 2013 Memorandum Opinion and Order, ECF Nos. 52, 53.) The only remaining Defendants are Drs. Green and Heimmel against whom Plaintiff asserts a claim of medical malpractice or negligence.

Dr. Heimmel now seeks to summarily dismiss Plaintiff's Second Amended Complaint for failure to submit an Affidavit of Merit as required by statute. See N.J. Stat. Ann. § 2A:53A-27 (West 2004).

II. Parties' Positions

Defendant asserts that Plaintiff failed to file an Affidavit of Merit pursuant to New

Jersey's Affidavit of Merit statute. (Def.'s Mot. 4.) According to Defendant, Plaintiff's complaint must be dismissed with prejudice because Plaintiff failed to supply the affidavit of an appropriate, qualified licensed individual with qualifications in the Defendant's sub-specialty within 60 days of the moving Defendant's answer to the complaint. ( Id. at 6.)

In his April 30, 2013 correspondence to the Court, Plaintiff acknowledged that he did not file an Affidavit of Merit. (Pl.'s Opp'n.) Plaintiff further stated that incarceration prevented him from filing the affidavit. ( Id. )

This Court further notes that Plaintiff is proceeding pro se in this matter. In the preliminary stage of this litigation, before service was effected, answers filed, and the Complaint was amended to include Drs. Green and Heimmel, the Honorable Douglas E. Arpert, United States Magistrate ...


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