United States District Court, D. New Jersey
Michael A. Shipp United States District Judge.
is proceeding, in forma pauperis, with a civil
rights complaint filed pursuant to 42 U.S.C. § 1983.
Federal law requires the Court to screen for sua sponte
dismissal prior to service, and to dismiss any claim that
fails to state a claim upon which relief may be granted under
Fed.R.Civ.P. 12(b)(6) and/or to dismiss any defendant who is
immune from suit. See 28 U.S.C. §
1915(e)(2)(B). The Court previously dismissed the Complaint
on screening, and permitted Plaintiff to amend. (Order, Aug.
24, 2016, ECF No. 4.) Presently before the Court is
Plaintiffs Amended Complaint, which the Court has screened.
(ECF No. 5.)
the Amended Complaint, Plaintiff only asserts claims against
two of the four original defendants, Defendants Dr. Smyczek
and Dr. Newjent (referred to collectively as
"Defendants"). The Court previously dismissed all
§ 1983 claims against them because Plaintiff failed to
allege deliberate indifference as required for his Eighth
Amendment denial of medical services claims. (Op. 6, Aug. 24,
2016, ECF No. 3) ("Prior Opinion"). The Amended
Complaint does not cure this defect. As the Court previously
opined, "[t]he Third Circuit has found deliberate
indifference when a prison official: '(1) knows of a
prisoner's need for medical treatment but intentionally
refuses to provide it; (2) delays necessary medical treatment
for non-medical reasons; or (3) prevents a prisoner from
receiving needed or recommended treatment.' Velasquez
v. Hayman, 546 F.App'x 94, 97 (3d Cir. 2013)
(quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d
Cir. 1999))." (Prior Op. 6.)
Here, Plaintiffs claim against Dr. Smyczek stems from his
allegations that Dr. Smyczek administered Retorlac to treat
his headaches, which allegedly was not a FDA-approved use of
the drug. (Am. Compl. 2-3.) He further asserts that the
medication had unpleasant side effects, and Dr. Smyczek told
him that the side effects would subside with time.
Id. at 3. Finally, he asserts that Dr. Smyczek's
experimental use of Retorlac for a three-week period caused
him to develop prostate cancer. Id.
Court finds Plaintiffs allegations insufficient to state a
denial of medical services claim against Dr. Smyczek. To
begin, off-label use of medicine does not prove deliberate
indifference. "Federal law prohibits drug manufacturers
from marketing a drug for an off-label purpose, but it does
not preclude medical professionals from prescribing a drug
for uses that are different than those approved by the
FDA." Cox v. Levenhagen, No. 12-0320, 2013 WL
3322034, at *5 (N.D. Ind. July 1, 2013) (citing Buckman
Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 350
(2001)). "The allegations that the FDA did not approve
the alleged off-label use . . . in administering . . .
treatment [is] not enough to give rise to a constitutional
violation absent allegations of deliberate indifference to
[plaintiff]'s medical needs." Morgan v. Tex.
Dep't of Criminal Justice McConnell Unit, 537
F.App'x 502, 507 (5th Cir. 2013). "[Plaintiff] does
not allege or point to circumstances that would suggest that
[the doctor] prescribed [treatment] with knowledge that [it]
would pose 'a substantial risk of serious harm, ' or
that such a risk would have been obvious, and that [the
doctor] 'disregarded] that risk by failing to take
reasonable measures to abate it.'" Id.
(quoting Farmer v. Brennan, 511 U.S. 825, 847
(1994)). Indeed, Plaintiff makes no allegations that Dr.
Smyczek prescribed Retorlac deliberately with knowledge of a
substantial risk of serious harm, or that he prescribed it
with knowledge that it was so ineffective as to amount to no
medical treatment at all. Disagreement with a doctor's
course of treatment does not state a denial of medical
services claim. "Where a prisoner has received some
medical attention and the dispute is over the adequacy of the
treatment, federal courts are generally reluctant to second
guess medical judgments and to constitutionalize claims which
sound in state tort law." Fantone v. Herbik,
528 F.App'x 123, 125 (3d Cir. 2013) (quoting U.S. ex
ret Walker v. Fayette Cty., Pa., 599 F.2d 573, 575 n.2
(3d Cir. 1979)). "A prisoner's subjec.ive
dissatisfaction with his medical care does not in itself
indicate deliberate indifference." Soto-Mumz v.
Corizon, Inc., No. 10-3617, 2015 WL 1034477, at *12
(D.N.J. Mar. 10, 2015).
Moreover, Plaintiffs allegation that the use of Retorlac
caused him to develop cancer is simply frivolous. Plaintiff
makes no factual allegations nor submits any documentation to
support this claim. Here, the Amended Complaint alleges chat
Dr. Smyczek started prescribing Retorlac on February 14,
2014, and Plaintiffs three-week use of the drug was the cause
of his cancer. (Am. Compl. 2-3.) However, Plaintiffs very
next allegation provides that "[o]n January 10, 2014, 1
was taken to St. Francis Medical Center in Trenton[, ] New
Jersey to have surgery on my prostate cancer[.]" The
allegations plainly show that Plaintiff had prostate cancer
before Dr. Smyczek started prescribing Retorlac, so
it could not possibly have caused the cancer.
regard to Plaintiffs claim against Dr. Newjent, as in the
original Complaint, Plaintiff simply alleges that Dr. Newjent
performed surgery for his prostate cancer and made a mistake
during surgery. (See Am. Compl. 4 ("The doctor
reiterated that I had a blockage, and he admitted to me that
he had messed up 'Cutting Something I Shouldn't Have
which is causing the Blockage and made your penis shrink at
the same time[.]'").) As the Court already held, a
mistake is not deliberate indifference. (Prior Op. 6.)
Accordingly, the Court dismisses Plaintiffs § 1983
claims against Defendants for failure to state a claim upon
which relief may be granted. Given the factual allegations in
the Amended Complaint, the Court finds that another
opportunity to amend would be futile, and dismisses these
claims with prejudice. See Grayson v. Mayview State
Hosp., 293 F.3d 103, 112-13 (3d Cir. 2002) (holding that
futility of amendment is a proper reason to deny leave to
Court also previously dismissed Plaintiffs state law claims
against Defendants because he failed to establish that a
notice of claim was served upon Defendants prior to filing
suit, as required by the New Jersey Tort Claims Act. (Prior
Op. 8.) In the Amended Complaint, Plaintiff attaches a letter
from the State of New Jersey, indicating that a notice of
claim has been filed and forwarded to Rutgers,
Defendants' employer. (Am. Compl. 9.) As such, it appears
that Plaintiff may have valid state law claims against
Defendants. However, having already dismissed all federal
claims against Defendants, the Court declines supplemental
jurisdiction over Plaintiffs state law claims. Federal law
permits the district court, within its discretion, to decline
to exercise supplemental jurisdiction over a claim if
"the district court has dismissed all claims over which
it has original jurisdiction." 28 U.S.C. 1367(c)(3).
Indeed, the Third Circuit has used even stronger language to
describe the court's obligations under the provision.
"The power of the court to exercise pendent
jurisdiction, though largely unrestricted, requires, at a
minimum, a federal claim of sufficient substance to confer
subject matter jurisdiction on the court." City of
Pittsburgh Comm'n on Human Relations v. Key Bank
USA, 163 F.Appx. 163, 166 (3d Cir. 2006) (quoting
Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 195
(3d Cir. 1976)). "[I]f it appears that all federal
claims are subject to dismissal, the court should not
exercise jurisdiction over remaining claims unless
'extraordinary circumstances' exist."
Id. '"[W]here the claim over which the
district court has original jurisdiction is dismissed before
trial, the district court must decline to decide the pendent
state claims unless considerations of judicial economy,
convenience, and fairness to the parties provide an
affirmative justification for doing so.'"
Id. (quoting Hedges v. Musco, 204 F.3d 109,
123 (3d Cir. 2000)).
Considering that this case is still before trial, that the
Court has dismissed all of Plaintiffs federal claims, and
that no extraordinary circumstances exist to compel the Court
to exercise jurisdiction, the Court declines to exercise
supplemental jurisdiction over Plaintiffs state law claims,
and they are dismissed without prejudice.
Because all claims in the Amended Complaint have been
dismissed, the Court dismisses the Amended Complaint. This
dismissal constitutes a strike for the purposes of 28 U.S.C.
§ 1915(g). See Ziegler v. Whitney, 112
F.App'x 699. 701 (10th Cir. 2004) (upholding a district
court's imposition of a strike under § 1915(g) after
dismissal of all federal claims with prejudice, even though
state law claims were dismissed without prejudice by
declining supplementaljurisdiction);JVea(yv. Kamas,
No. 12-6201, 2013 WL 140111, at*l (W.D.N.Y. Jan.10,
2013) (counting a prior dismissal of all federal claims with
prejudice, in which the court dismissed state law claims by
declining supplemental jurisdiction, as a strike under §
1915(g)); Knox v. Furlong, No. ...