United States District Court, D. New Jersey
DAVID R. COLEMAN, et al., Plaintiffs,
UNITED STATES OF AMERICA, Defendants.
B. KUGLER United States District Judge.
David R. Coleman and his wife Talia Coleman, are proceeding
through counsel with second amended civil rights
complaint. 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,
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
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
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
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.
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)
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
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.
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.
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.
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
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.
Coleman's health continues to decline. He experiences
seizures, head and neck pain and needs to use a cane.
Coleman raises several claims in the second amended
complaint. In Count I, Mr.
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
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
(Dkt. No. 21 at p.18)
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
Defendant Moubarek's Motion to Dismiss for Lack of
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)
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.
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.
Defendants Kennar, Estate of Kaough, Gibbs,
Turner-Foster, Newland & Reyes' Motion to
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.
Estate of Kaough & Lack of Service
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.
Anderson v. ZFC Legal Title Trust I, No. 16-1499,
2016 WL 7408846, at *2 (D.N.J. Dec. 22, 2016).
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. ...