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Coleman v. United States

United States District Court, D. New Jersey

June 16, 2017

DAVID R. COLEMAN, et al., Plaintiffs,


          ROBERT B. KUGLER United States District Judge.


         Plaintiffs, David R. Coleman and his wife Talia Coleman, are proceeding through counsel with second amended civil rights complaint.[1] Mr. Coleman was previously incarcerated as an inmate at F.C.I. Fort Dix in Fort Dix. New Jersey and at F.C.I. Cumberland, in Cumberland, Maryland. Presently pending before this Court are two motions to dismiss. The first motion to dismiss is filed by defendant Mohammad Moubarek. He seeks dismissal of the second amended complaint against him for lack of personal jurisdiction. Plaintiffs do not oppose this motion to dismiss. It will be granted. The second pending motion is a motion to dismiss filed by defendants the Estate of Lieutenant Corey J. Kaough, James Gibbs, PA, [2] Lieutenant Kennar, Nicoletta Turner-Foster, MD, R. Newland, MD and Officer Reyes. For the following reasons, that motion will be granted in part and denied in part


         The factual allegations of the second amended complaint will be construed as true for purposes of this opinion. On January 21, 2013, while incarcerated at F.C.I. Fort Dix, Mr. Coleman was taking a shower when he was struck in the head and knocked unconscious by an iron/metal grate that is used to cover a vent on the wall in the shower cubicle. This caused a laceration and heavy bleeding. Mr. Coleman was transported to the on-duty Lieutenant's office, Kennar. Kennar did not provide medical treatment to Mr. Coleman. Instead, Mr. Coleman was “slammed up against a wall and handcuffed to a chair for hours” until two nurses arrived in the morning. (See Dkt. No. 21 at p.8) At that time, Mr. Coleman was escorted to the Health Service Unit “(HSU”). He was diagnosed with a concussion, administered Tylenol and instructed to return to his housing unit.

         Mr. Coleman continued to experience headaches upon returning to his unit. He was eventually sent back to the HSU for another evaluation. As a result of this second evaluation, Mr. Coleman was transferred to St. Francis Medical Center (“SFMC”). He was diagnosed with a concussion post head trauma, headache, C-6 spine fracture and neck pain. Mr. Coleman remained hospitalized for four days. He was discharged on January 25, 2013 and given a prescription for Decadron to control cerebral and cervical swelling. He was instructed to use a cervical collar until seen by neurosurgery.

         Upon returning to F.C.I. Fort Dix, Mr. Coleman was advised by defendant Gibbs that Decadron was not available and that he did not know when he could obtain in. Upon returning to the prison, Mr. Coleman had difficulty moving his right arm and leg. On January 26, 2013, Gibbs received a radio call that Mr. Coleman could not move the right side of his body. Gibbs examined Mr. Coleman and he was instructed to delete the prescription for Decadron and begin a regiment of 15 milligrams of prednisone BID for five days.

         On January 27, 2013, Gibbs received another radio call that Mr. Coleman was unable to move the right side of his body. Gibbs and other officers went to Mr. Coleman's cell. Mr. Coleman was strapped to a stretcher and transported to defendant Kaough's office. Upon seeing Mr. Coleman, Kaough stated that, “it can't be that serious.” (Dkt. No. 21 at p. 10) Kaough said that since Mr. Coleman did not want to walk, he would be placed in the SHU. Another officer mentioned that he had found a shank underneath Mr. Coleman's locker. Kaough then stated, “Yeah, we can go all the way too, write it up and we can take all his good time.” (Dkt. No. 21 at p.11)

         Mr. Coleman was then charged with possession of a weapon and transported to the SHU by Gibbs. Mr. Coleman was thrown onto a bare mat on the floor in his SHU cell. According to Mr. Coleman, he “was left lying in excruciating pain drenched in his own urine, saliva and vomit on the floor of the cell, crying and yelling for medical attention for more than thirteen (13) hours with no response. [He] was left laying on his back unable to get up.” (Dkt. No. 21 at p.11)

         At 7:00 a.m. the next morning, Mr. Coleman was removed from the SHU and transported to SFMC. He was admitted for four days from January 28, 2013 until January 31, 2013. He was diagnosed with blunt trauma to the head, deformity of the cervical 5th vertebrae and weakness of the right arm and leg. Upon being released from the hospital on January 31, 2013, it was recommended that Mr. Coleman continue with Decadron, use a cervical collar and undergo physical therapy.

         Mr. Coleman was placed back in the SHU until March 21, 2013. He went days without medication. Mr. Coleman was also given the wrong medication during this time which caused an allergic reaction. Mr. Coleman was also chained while showering.

         On June 25, 2013, Mr. Coleman was found unresponsive in his wheelchair. He was again transported to SFMC. He remained there until June 28, 2013. Mr. Coleman was diagnosed with a change in seizure disorder possibly due to grand mal seizure and functional weakness of the right hand. On June 29, 2013, Mr. Coleman was again transported to SFMC. An EEG was found to be consistent with a seizure disorder. Mr. Coleman remained at SFMC for seven days. Physical therapy was recommended when he was released from the hospital.

         On July 6, 2013, Mr. Coleman woke up in a room wearing nothing but a smock. The room was infested with cockroaches and spiders. Mr. Coleman had bruises and scratches on his body. He was not responsive so a task force was used to remove him from his cell.

         While Mr. Coleman was recommended by defendant Turner-Foster to be transferred to a facility that offered physical therapy, he was never provided physical therapy. Ultimately, Mr. Coleman was transferred to F.C.I. Cumberland where he again was not given physical therapy.

         Mr. Coleman's health continues to decline. He experiences seizures, head and neck pain and needs to use a cane.

         Mr. Coleman raises several claims in the second amended complaint. In Count I, Mr.

         Coleman brings a negligence claim against the Unites States. In Count II, Mr. Coleman brings an Eighth Amendment deliberate indifference to his serious medical needs claim against defendants Kennar, Kaough, Gibbs, Turner-Foster, Newland, Moubarek, Reyes and John Doe physicians and nurses. He claims that:

Defendants failed to conduct a complete and thorough physical examination of Plaintiff immediately following his injury which would have revealed the severity of Plaintiff's injuries and the necessity to promptly transfer Plaintiff to a hospital for further care; failed to provide emergent medical care to Plaintiff; failed to provide proper, adequate medical treatment to Plaintiff, including, but not limited to immediate transportation to the hospital for a complete and thorough physical examination; and failed to provide prescribed followup care, including but not limited to physical therapy and medication to control cerebral and cervical swelling.

(Dkt. No. 21 at p.18)

         In Count III, Mr. Coleman raises a cruel and unusual punishment claim. Count IV asserts an excessive force claim against Kennar, Kaough, Gibbs, Reyes and John Does. Finally, in Count V, Mr. Coleman asserts a conspiracy claim against Kennar, Kaough, Gibbs, Turner-Foster, Newland, Moubarek, Reyes and John Does.


         A. Defendant Moubarek's Motion to Dismiss for Lack of Personal Jurisdiction

         Defendant Moubarek is employed at F.C.I. Cumberland, in Cumberland, Maryland. He has moved to dismiss the second amended complaint against him for lack of personal jurisdiction. Plaintiffs have stated that they do not have a valid challenge to Moubarek's motion to dismiss for lack of personal jurisdiction. (See Dkt. No. 35)

         When a defendant raises a personal jurisdictional objection, the plaintiff bears the burden of showing that jurisdiction is proper. See Mellon Bank (East) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992); see also Bootay v. KBR, Inc., 437 F.App'x 140, 143 (3d Cir. 2011). A plaintiff meets this burden by presenting a prima facie case for the exercise of personal jurisdiction, which requires that he or she establish “with reasonable particularity sufficient contacts between the defendant and the forum state.” Mellon Bank, 960 F.2d at 1223 (citing Provident Nat'l Bank v. California Fed. Sav. & Loan Ass'n, 819 F.2d 434 (3d Cir. 1987)). It is insufficient to rely on the pleadings alone; rather a plaintiff must establish facts relevant to personal jurisdiction by affidavits or other competent evidence. See Patterson v. Fed. Bureau of Investigation, 893 F.2d 595, 603-04 (3d Cir. 1990) (quoting Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 67 n. 9 (3d Cir. 1984)). “Because Bivens suits are suits against government officials in their individual - rather than official - capacities, personal jurisdiction over each defendant is necessary.” Paz v. Hughes, No. 15-1846, 2016 WL 6276397, at *2 (E.D. Pa. Oct. 27, 2016) (citing Zieper v. Reno, 111 F.Supp.2d 484, 491 (D.N.J. 2000)).

The federal district courts in New Jersey may assert personal jurisdiction over a nonresident only to the extent authorized by state law. Eurofins [Pharma U.S. Holdings v. BioAllaince Pharma SA, 623 F.3d [147, ] 155 [(3d Cir. 2010)]. We have recognized that “New Jersey's long-arm statute provides for jurisdiction coextensive with the due process requirements of the United States Constitution.” Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004) (citation omitted). In keeping with “traditional notions of fair play and substantial justice, ” J. McIntyre Mach., Ltd. v. Nicastro, - U.S. -, 131 S.Ct. 2780, 2787, 180 L.Ed.2d 765 (2011) (citation and internal quotations omitted), due process permits that “parties who have constitutionally sufficient minimum contacts with New Jersey are subject to suit there.” Miller Yacht Sales, 384 F.3d at 96 (internal quotations omitted).
Two brands of personal jurisdiction, viz., “minimum contacts, ” adhere to those due process principles. The first brand-general jurisdiction-exists “when a defendant has maintained systematic and continuous contacts with the forum state.” Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290, 300 (3d Cir. 2008). And the second brand-specific jurisdiction-exists “when the claim arises from or relates to conduct purposely directed at the forum state.” Id.; see also Asahi Metal Indus., Ltd. v. Superior Court of California, Solano Cnty., 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (“minimum contacts must have a basis in some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws”) (internal quotations and citation omitted).

Boyd v. Arizona, 469 F.App'x 92, 97 (3d Cir. 2012).

         This Court agrees with Moubarek that plaintiffs have failed to establish either general or specific personal jurisdiction over him. Indeed, plaintiffs concede as much in their letter indicating that they are not filing a response in opposition to Moubarek's motion. The second amended complaint acknowledges that F.C.I. Cumberland is in Maryland. The second amended complaint does not allege allegations that tie Moubarek to New Jersey. Furthermore, Moubarek's declaration indicates that he does not reside in New Jersey, work in New Jersey or own any real property in New Jersey. Plaintiffs have not filed anything in response to counter Moubarek's declaration. Therefore, this Court will grant Moubarek's motion to dismiss the second amended complaint against him for lack of personal jurisdiction.

         B. Defendants Kennar, Estate of Kaough, Gibbs, Turner-Foster, Newland & Reyes' Motion to Dimsiss

         Defendants the Estate of Kaough, Turner-Foster, Newland, Reyes, Kennar and Gibbs, have also filed a motion dismiss the second amended complaint. These defendants make several arguments in their motion. Each will be considered in turn.

         i. Estate of Kaough & Lack of Service

         The Estate of Corey J. Kaough seeks dismissal of this action against him because it was not timely served with process.

Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirements of service of summons must be satisfied.” Omni Capital Int'l Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Under Rule 12(b)(4), Fed. R. Civ. P., a party may file a motion asserting insufficient process as a defense. Additionally, under Rule 12(b)(5), Fed. R. Civ. P., a party may file a motion asserting insufficient service of process as a defense. “When a party moves to dismiss under Rule 12(b)(5), the party making the service has the burden of demonstrating its validity.” Laffey v. Plousis, No. 05-2796, 2008 WL 305289, at *3 (D.N.J. Feb. 1, 2008), aff'd, 364 F.App'x 791 (3d Cir. 2010).

Anderson v. ZFC Legal Title Trust I, No. 16-1499, 2016 WL 7408846, at *2 (D.N.J. Dec. 22, 2016).

         Summonses were issued for the second amended complaint on July 12, 2016. Plaintiffs then had ninety days in which to serve the Estate of Kaough under Federal Rule of Civil Procedure 4(m). It does not appear that the Estate was served. Nevertheless, plaintiffs assert that the second amended complaint should not be dismissed against the Estate of Kaough. Plaintiffs first argue that the United States did not file a statement of Kaough's death pursuant to Federal Rule of Civil Procedure 25. ...

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