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Gaines v. Busnardo

United States District Court, D. New Jersey

December 23, 2014

HERMAN GAINES, Plaintiff,
v.
BRAD BUSNARDO, et al., Defendants.

Herman Gaines, Pro Se New Jersey State Prison Trenton, NJ,

Thomas B. Reynolds, Esq., Reynolds & Horn, Marlton, NJ, Attorney for Defendants Busnardo, Green.

OPINION

JAMES B. SIMANDLE, Chief District Judge.

This matter comes before the Court upon Plaintiff's Motion for Summary Judgment, to appoint counsel, and for a Writ of Habeas Corpus ad testificandum (Docket Item 26), filed on March 4, 2014, and Defendants' Motion for Summary Judgment (Docket Item 31). The Court has carefully considered the Parties' motions, oppositions, and arguments. For good cause shown, Plaintiff's motion will be denied. Defendants' motion will be granted in part, denied in part. Plaintiff's Eighth Amendment claims will be permitted to proceed; however, Plaintiff's medical malpractice claims will be dismissed.

I. Background

Plaintiff argues that on or about September 10-16, 2011, he suffered a ruptured Achilles' tendon while he was a prisoner at the South Woods State Prison ("SWSP"). He states that he informed Defendants Busnardo and Green that he "felt a pop" at the back of his left ankle while playing basketball ( see Docket Item 18, Plaintiff's Pretrial Memorandum). Plaintiff was in intense pain and his ankle was swollen. Neither Defendant performed a Range of Motion test, according to Plaintiff. They gave Plaintiff Motrin and an ACE bandage. Plaintiff notes that while Defendants claim they gave him a "brace, " the actual item given to him was an ankle "sleeve, " that did not provide enough support for him while walking on a ruptured tendon. ( Id. ). Plaintiff argues that Defendants, "to avoid the workload" deliberately mischaracterized his injury as a sprained ankle; however, Plaintiff believes Defendants knew that the injury was much more serious than that. Plaintiff contends that he should be permitted to present his case to a jury to prove that Defendants "lied." ( Id. ). Plaintiff continued to have pain until he was finally given crutches. He states in his pretrial memorandum that he wanted to procure an expert to "deliver testimony concerning whether Motrin, and ACE bandage, and an ankle sleeve (brace) can address the serious medical need of walking on a ruptured Achilles' tendon and to also testify as to the physical ramifications and what occurs when a person bears his weight on a ruptured tendon." ( Id. ).

Defendants' Statement of Material Facts (Docket Item 31-5) reiterates Plaintiff's statements in the Complaint and in answer to interrogatories.

II. Plaintiff's Summary Judgment Motion

This Court has reviewed Plaintiff's Motion (Docket Item 26), filed pro se. It does not appear to be a motion at all, but instead, opposition to a previously-filed Motion for Summary Judgment by Defendants which was withdrawn on September 10, 2014 ( see Docket Item 32). In the opposition/motion, Plaintiff argues that the previously-filed Motion for Summary Judgment should have been denied, and summary judgment granted to him, instead. Plaintiff argues that Defendants "admitted themselves in the medical reports which they prepared that they were aware of plaintiff's pain and they've made no argument, in their motion, showing that an expert is required to prove the existence of pain (which defendants were deliberately indifferent to)." (Plaintiff's Brief, Docket Item 26-1).

Plaintiff also reasserts his Eighth Amendment claim, states that "it's abundantly clear that plaintiff is way out of his league and has no idea what he's doing." (Brief, p. 12).

In response to the opposition/motion filed by Plaintiff, Defendants submitted a Reply Brief (Docket Item 27), which points out that Plaintiff admittedly knew that he needed an Affidavit of Merit and attempted to secure one, and that Plaintiff's argument that he does not need a medical expert to prove the existence of his pain is meritless under Third Circuit law. (Docket Item 27 at p. 3).

III. Defendants' Motion for Summary Judgment

Defendants filed a Motion for Summary Judgment on June 2, 2014 (Docket Item 31). They argue that Plaintiff's state law claims must be dismissed for failure to serve an appropriate Affidavit of Merit, and that Plaintiff's Eighth Amendment claims must be dismissed for failure to ...


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