United States District Court, D. New Jersey
[Copyrighted Material Omitted]
For SUSAN ENDL, as Administrator Ad Proseqendum of The Estate of Eli Endl, ANTHONY ENDL, individually, ELI ENDL, Plaintiffs: FRED M. ZEMEL, LEAD ATTORNEY, THE ZEMEL LAW FIRM, NEWARK, NJ.
For STATE OF NEW JERSEY, NEW JERSEY DEPARTMENT OF CORRECTIONS, NORTHERN STATE PRISON, COMMISSIONER GARY M. LANIGAN, in his official capacity as Commissioner of New Jersey Department of Corrections, GEORGE HAYMAN, in his official capacity as former Commissioner of the New Jersey Department of Corrections, PAUL LAGANA, in his official capacity as Administrator Northern State Prison, Defendants: ROSHAN DEVEN SHAH, LEAD ATTORNEY, STATE OF NEW JERSEY, TRENTON, NJ.
For UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, Defendant, Cross Claimant: DAVID C. DONOHUE, FARKAS & DONOHUE, LLC, FAIRFIELD, NJ.
For RN BERNICE PICERNO-JONES, Defendant: SUZANNE D'AMICO BRODOCK, LEAD ATTORNEY, LAW OFFICES OF JOSEPH CAROLAN, PARSIPPANY, NJ.
For UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, Cross Defendant: DAVID C. DONOHUE, FARKAS & DONOHUE, LLC, FAIRFIELD, NJ.
KEVIN MCNULTY, United States District Judge.
This matter comes before the Court on motions to dismiss the Second Amended Complaint (" SAC" ) brought by Defendants State of New Jersey, New Jersey Department of Corrections, Northern State Prison, Gary M. Lanigan, George Hayman, and Paul Lagana (collectively, " Corrections Defendants" ) (Docket No. 34), and by
the University of Medicine & Dentistry of New Jersey, John Godinsky, M.D., Sharmalie Perera, M.D., Veronica Nendze, R.N., Maria Delgado, R.N., Theresa Jocen Boblick, L.P.N., Bernice Picerno-Jones, R.N., David Maxey, PhD, Alan Kay M.D., and Anasuya Salem, M.D. (collectively, " Medical Defendants" ) (Docket Nos. 35, 48). For the reasons set forth below, these motions are GRANTED in part and DENIED in part.
This action arises out of the death of Eli Endl, which occurred when he was an inmate of Northern State Prison. Plaintiffs, Mr. Endl's survivors, bring the action against the State of New Jersey, the New Jersey Department of Corrections, the University of Medicine & Dentistry of New Jersey, and affiliated medical personnel. They allege that Defendants' collective failure to provide adequate medical care caused the death of Eli Endl. The Second Amended Complaint (" SAC" ) asserts constitutional claims pursuant to 42 U.S.C. § 1983 and the New Jersey Civil Rights Act (" NJCRA" ), as well as state law claims under the New Jersey Tort Claims Act (" TCA" ).
For purposes of these motions only, I assume the truth of the following facts, which are taken from the SAC. At this procedural stage, however, they have the status of allegations, and have not been tested by any fact finder.
Eli Endl, now deceased, was an inmate at Northern State Prison in Newark, Essex County, New Jersey. SAC ¶ 1. Plaintiffs, Susan and Anthony Endl, are the natural parents of Eli Endl. Id. ¶ 2. Susan Endl is the designated administrator ad prosequendum for the benefit of Eli Endl's estate. Id. ¶ 3.
Defendant New Jersey Department of Corrections (" DOC" ) is a subdivision of Defendant State of New Jersey (" New Jersey" ). DOC operates Northern State Prison. Id. ¶ ¶ 4-6. Defendant Gary M. Lanigan is the Commissioner of the DOC. Id. ¶ 8. Defendant George Hayman is the former Commissioner of the DOC. Id. ¶ 9. Defendant Paul Lagana is the Administrator of Northern State Prison. Id. ¶ 10. These three individuals are sued in their official capacities. Collectively these Defendants are referred to as the " Corrections Defendants." 
Defendant University of Medicine and Dentistry of New Jersey (" UMDNJ" ) is a state university contracted by New Jersey to provide medical care and attention, and health and hospital services, to inmates housed at Northern State Prison. Id. ¶ 7. Defendants John Godinsky, M.D., Sharmalie Perera, M.D., Veronica Nendze, R.N., Maria Delgado, R.N., Theresa Jocen Boblick, L.P.N. Defendants Bernice Picerno-Jones,
R.N., David Maxey PhD, Alan Kay, M.D., and Anusuya Salem, M.D. are current or former employees of UMDNJ, DOC, or Northern State Prison who provided medical care and attention to inmates at the prison, including Eli Endl. Id. ¶ ¶ 15-18. Collectively, these Defendants are referred to as the " Medical Defendants." 
Between approximately March 21, 2010, and March 25, 2010, Eli Endl became ill and required medical care. Id. ¶ ¶ 21-23. At 9:20 pm on March 21, 2010, Bernice Picerno-Jones, R.N., documented that Endl complained of chest cavity pain from his shoulders past his abdomen. Id. ¶ 23. She reported that he had been given 650 mg of Tylenol at 9:00 pro, but allegedly no medical workup followed. Id. On March 22, 2010, Endl required medical attention for a complaint of bil[ateral] flank pain, tenderness, and chest pain. Id. ¶ 22. On March 24, 2010, Endl had an office visit for blood in sputum, excessive sputum, cough, wheezing, and " bronchitis-c/o cough with excessive sputum and blood." Id. At 8:56 pm the same day, Endl was found unresponsive in his cell by a corrections officer. Id. Endl died on March 25, 2010. Id. ¶ 26.
Plaintiffs allege that Defendants denied or deprived Endl of " proper and necessary medical care and attention" by:
1. Failing to provide a medical workup following Endl's documented March 21, 2010 complaint of chest cavity pain;
2. Misdiagnosing bronchitis when Endl suffered from congestive heart failure;
3. Misdiagnosing kidney stone-related pain and respiratory infection;
4. Failing to diagnose potential aortic dissection;
5. Failing to diagnose Marfanoid symptoms;
6. Failing to timely treat a dissecting aortic aneurysm;
7. Failing to address prior diagnoses of schizophrenia and mood disorder;
8. Failing to properly diagnose several pain symptoms; and
9. Failing to insure that Endl was properly medicated.
Id. ¶ 23. Plaintiffs allege that the care Endl did receive was provided " carelessly, recklessly and negligently." Id. ¶ 24. They further allege that as a " direct and proximate result" of Defendants' refusal to provide the required medical care attention, Endl sustained substantial pain and suffering, and died. Id. ¶ ¶ 25, 26.
Plaintiffs Susan Endl (individually and as administrator ad prosequendum of the Estate of Eli Endl), Anthony Endl, and Eli Endl (deceased), bring this complaint against the Defendants alleging 10 counts: deliberate indifference to serious medical needs (Count 1), cruel and unusual punishment (Count 2), deprivation of life, liberty, and the pursuit of happiness (Count 3), and a separate " Monell claim" (Count 4) pursuant to 42 U.S.C. § 1983; deprivation of right to life, liberty, and the pursuit of happiness (Count 5) and cruel and unusual punishment (Count 6) under the New Jersey Constitution; and state-law claims of negligence and/or medical malpractice (Count 7), intentional infliction of emotional distress  (Count 8), wrongful death
(Count 9), and the New Jersey Survivorship Statute (Count 10). SAC ¶ ¶ 28-65.
The original complaint was filed on March 21, 2012, in New Jersey Superior Court, Essex County; removed to this district court on June 13, 2012; and assigned to Hon. William J. Martini. (Docket No. 1). The Corrections Defendants moved to dismiss the initial complaint on June 20, 2012 (Docket No. 4), but that motion, overtaken by procedural developments, was not decided. The case was reassigned to me on August 1, 2012, and the First Amended Complaint was filed the same day. (Docket Nos. 9, 10). UMDNJ filed an Answer to the First Amended Complaint on August 14, 2012. (Docket No. 13). Less than a month later, on September 10, 2012, the Plaintiffs moved to amend the complaint a second time. (Docket No. 14). Magistrate Judge Mark Falk granted the motion to amend and terminated the pending motion to dismiss the earlier complaint. (Docket No. 19). Plaintiffs filed the SAC on November 26, 2012. (Docket No. 20).
None of the Defendants has filed an Answer to the SAC. The Corrections Defendants moved to dismiss the SAC pursuant to Fed.R.Civ.P. 12(b)(6) on December 10, 2012. (Docket No. 34). The Medical Defendants also moved to dismiss the SAC on December 18, 2012. (Docket No. 35). On April 11, 2013, the Medical Defendants made a second motion to dismiss the SAC pursuant to Rule 12(b)(6) based on Plaintiffs failure to comply with the state-law requirement of an affidavit of merit. (Docket No. 48).
Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Finding that the Correction Defendants' motion and the SAC also raise issues of sovereign immunity and standing, I also consider the SAC's viability pursuant to Fed.R.Civ.P. 12(b)(1). See Corr. Def. Br. at 8.
A. Lack of Subject Matter Jurisdiction Under Rule 12(b)(1)
The Court's subject-matter jurisdiction is considered pursuant to Fed.R.Civ.P. 12(b)(1). Rule 12(b)(1) challenges may be either facial or factual attacks. See 2 MOORE'S FEDERAL PRACTICE § 12.30 (3d ed. 2007); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge asserts that the complaint does not allege sufficient grounds to establish subject matter jurisdiction. Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 438 (D.N.J. 1999). A court considering such a facial challenge assumes that the allegations in the complaint are true, and may dismiss the complaint only if it nevertheless appears that the plaintiff will not be able to assert a colorable claim of subject matter jurisdiction. Cardio--Med. Assoc., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F.Supp.2d at 438. A factual challenge, however, attacks subject-matter jurisdiction by challenging the truth (or ...