United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. Sheridan United States District Judge
case has come before the Court on a civil rights Complaint
filed by Plaintiff Ralph Baker, asserting that his
constitutional rights have been violated by Defendants. The
Court had rejected two previous pleadings by Plaintiff for
failure to state a claim and improper joinder, but afforded
him opportunities to amend. Presently before the Court is
Plaintiffs Third Amended Complaint ("TAC"). ECF No.
44. Also before the Court is Plaintiffs in forma
pauperis application, filed together with the original
Complaint but apparently has yet to be ruled upon, which the
Court now grants. ECF No. 1-1. Because Plaintiff is
proceeding in forma pauperis, the Court must review
the TAC pursuant to 28 U.S.C. § 1915(e)(2)(B) to
determine whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may
be granted, or because it seeks monetary relief from a
defendant who is immune from suit. It appearing, 1. Plaintiff
names as defendants (1) Steven Johnson, Administrator of the
New Jersey State Prison ("NJSP"); (2) Doctor Ihumma
Naachuku, M.D., head of the Medical Clinic at NJSP; (3)
Doctor Russell Freid, M.D., a physician at the St. Francis
Medical Center; (4) Michael Piecuch and (5) Barman Vladislav,
medical residents at the University Hospital in Newark, New
Jersey; (6) Marci L. Marsker, Clinician Administrator at the
University of Medicine and Dentistry of New Jersey
("UMDNJ"); (7) Kathy Trillo, employee of UMDNJ; (8)
Doctor Abu Ahsan, M.D., employee of UMDNJ; (9) UMDNJ; (10)
Rutgers University; (11) New Jersey Department of Corrections
("NJDOC"); (12) Gary Lanigan, Commissioner of
NJDOC; (13) Jeremy Burg, a nurse employed by Rutgers; (14)
Lace Carter, a nurse employed by Rutgers; (15) Correctional
Medical Services ("CMS"), a provider of inmate
healthcare for the NJSP; (16) Alejandrina Sumicad, employee
of UMDNJ; (17) Susan Spangler, employee of UMDNJ; and (18)
St. Francis Medical Center ("St. Francis"). These
are defendants Plaintiff lists in the body of the TAC. To the
extent any other defendants are listed in the case caption
but not listed herein, the Court deems Plaintiffs claims
against such defendants abandoned on the account of the newly
filed amended complaint. See Fla. Dep't of State v.
Treasure Salvors, Inc., 458 U.S. 670, 705 n.2 (1982)
(Brennan, J., concurring in judgment) ("[O]nce accepted,
an amended complaint replaces the original.");
Snyder v. Pasack Valley Hosp., 303 F.3d 271, 276 (3d
Cir. 2002) ("An amended complaint supercedes the
original version in providing the blueprint for the future
course of a lawsuit.").
According to the TAC, Plaintiff has been in and out of the
New Jersey prison system since at least 1990, with his latest
stint in the NJSP since 2009. During this latest stint,
Plaintiff was diagnosed with prostate cancer. The TAC alleges
that not only has Plaintiff received inadequate medical care
during his current stint of incarceration for a variety of
ailments including his cancer, he also received inadequate
medical care during his previous incarcerations because his
cancer should have been detected earlier. Plaintiff also
alleges that he is seeking a medical clemency from the
Court dismisses all § 1983 claims regarding the failure
to detect his cancer during his previous incarcerations. To
state a denial of medical services claim under the Eighth
Amendment, it is not enough a plaintiff alleges that he
received inadequate care-he must also establish that the
defendants acted with deliberate indifference with regard to
the provision of inadequate care. See Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Natale v. Camden
Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003).
As such, mere allegations of medical malpractice are not
sufficient to establish a constitutional violation. Allah
v. Hayman, 442 F.App'x 632, 635-36 (3d. Cir. 2011).
Here, Plaintiffs allegations regarding the failure to detect
his cancer falls far short of establishing a constitutional
violation. There is no allegation that any defendant
deliberately ignored clear warning signs of cancer before
2009, or that they had actual knowledge of the cancer and
simply hid that fact from Plaintiff. Plaintiff asserts the
various doctors that treated him during his previous
incarcerations should have detected his cancer, but that
amounts to at best a medical malpractice claim, not a
constitutional claim. As such, all denial of medical services
claims regarding the failure to detect his cancer are
dismissed without prejudice.
TAC further alleges that various defendants violated his
constitutional rights when they interfered and impeded his
attempts to obtain a medical clemency from the governor. The
Court dismisses these claims because a convict has no
constitutional right to clemency for any reason.
"There is no right under the Federal Constitution to be
... released before the expiration of a valid
sentence[.]" Swarthout v. Cooke, 131 S.Ct. 859,
862 (2011). The allegations do not state a constitutional
violation, because the right asserted does not exist.
Court also dismisses any denial of medical services claims
that may have accrued before December 5, 2012, two years
prior to the filing of the original Complaint, as
time-barred. Under New Jersey law, an action for an injury
caused by a wrongful act, neglect, or default must be
commenced within two years of accrual of the cause of action.
N.J.S.A. § 2A:14-2; Estate of Lagano v. Bergen Cty.
Prosecutor's Office, 769 F.3d 850, 859 (3d Cir.
2014). Federal courts look to state law to determine the
limitations period for § 1983 actions. Wallace v.
Kato, 549 U.S. 384, 387-88 (2007); Lagano, 769
F.3d at 859. Civil rights or constitutional tort claims are
best characterized as personal injury actions and are
governed by the applicable state's statute of limitations
for personal injury actions. Lagano, 769 F.3d at
859. Accordingly, New Jersey's two-year limitations
period on personal injury actions governs Plaintiffs claims.
Id. Here, any claims regarding incidents of
inadequate medical care that accrued before December 5, 2012
should have been raised earlier, and because they were not,
Plaintiffs claims of inadequate medical care must be limited
to claims that accrued within the two years prior to the
filing of the original Complaint. Any earlier-accrued claims
are dismissed with prejudice as time-barred.
Court additionally dismisses state-law tort claims against
all defendants except CMS, St. Francis, and Freid. Under the
New Jersey Tort Claims Act ("NJTCA"), when
asserting a state tort claim against a public entity or a
public employee, a plaintiff must give notice of the claim
within ninety days after the cause of action has accrued.
See N.J.S.A. § 59:8-8; Konah v. City of
Newark, No. L-962-10, 2011 WL 1598957, at *2 (N.J. Sup.
Ct. App. Div. Apr. 29, 2011); Brown v. Twp. of
Neptune, No. 11-7162, 2014 WL 3517776, at *7 (D.N.J.
July 15, 2014). This notice requirement applies to common
law intentional tort claims, Ptaszynski v. Uwaneme,
371 N.J.Super. 333, 343 (App. Div. 2004), as well as
negligent conduct, Velez v. City of Jersey City, 180
N.J. 284, 292-93 (2004). This ninety-day notice period may be
extended by a court upon a finding of "sufficient
reasons constituting extraordinary circumstances for [the
plaintiffs] failure to file notice of claim within the period
of time prescribed, " but only if the plaintiff files a
late notice "within one year after the accrual of his
claim[.]" N.J.S.A. § 59:8-9; see Slater v.
Hardin, No. L-8574-09, 2014 WL 923337, at *5 (N.J. Sup.
Ct. App. Div. Mar. 11, 2014). Plaintiffs who do not comply
with this requirement are "forever barred" from
recovering on their claim. See N.J.S.A. §
59:8-8. Notice is important because it provides state
agencies the "opportunity to investigate the claims, and
take disciplinary or other appropriate action to rectify
inappropriate behavior or flawed practices[.]"
Mawhinney v. Francesco, No. 08-3317, 2010 WL
2557713, at *9 (D.N.J. June 22, 2010) (quoting
Velez, 180 N.J. at 293). Failure to file a notice of
claim is a ground for dismissal at the motion to dismiss
stage. See William v. Westampton Police Dep't,
No. L-l 144-13, 2014 WL 5393184, at *3 (N.J. Sup. Ct. App.
Div. Oct. 24, 2014).
Here, because Plaintiff claims relief under state law, he
must follow established state procedures. See Murphy v.
Bloom, 443 F.App'x 668, 670 (3d Cir. 2011)
("The District Court  properly recognized that Murphy
did not follow the proper procedure for bringing a [state
law] claim ... as required by state law."). There is no
allegation in the TAC that Plaintiff filed the required
notice of claims. Under New Jersey law, Plaintiff is required
to file the notice of claims before he initiates any
state law tort action against the public defendants.
See N.J.S.A. § 59:8-3. As such, Plaintiff must
demonstrate, at the time he filed the original Complaint,
that such notice of claims had already been served. See
Ptaszynski v. Uwaneme, 371 N.J.Super. 333, 343 (App.
Div. 2004) (holding that the notice requirement under the
Tort Claims Act is a jurisdictional precondition to filing
suit). No such demonstration has been made in the TAC.
See Fed. R. Civ. P. 8(a) ("A pleading that
states a claim for relief must contain ... the grounds for
the court's jurisdiction[.]"). Because there is no
allegation that a notice of claims has been filed with the
public defendants, Plaintiff has failed to establish, under
Rule 8, that this Court has jurisdiction over Plaintiffs
state law claims against them. Accordingly, Plaintiffs state
law claims against the public defendants are dismissed for
lack of jurisdiction. See Bethea v. Roizman, No. 11
-254, 2012 WL 2500592, at *7 (D.N.J. June 27, 2012)
(dismissing plaintiffs state law tort claims for his failure
to plead compliance with the notice requirement under the
Tort Claims Act).
Finally, the Court dismisses all § 1983 claims against
NJDOC, UMDNJ, Rutgers, CMS, St. Francis, Lanigan, and
Johnson. First, NJDOC claims are dismissed because of
Eleventh Amendment immunity. See Chavarriaga v. N.J.
Dep't of Corr., 806 F.3d 210, 224 n.9 (3d Cir. 2015)
("[T]he Court correctly dismissed the NJDOC from this
case on Eleventh Amendment grounds."). With regard to
UMDNJ, Rutgers, CMS, St. Francis, Lanigan, and Johnson, there
is no respondeat superior liability against
supervisors or employers in § 1983 suits. See
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
("Government officials may not be held liable for the
unconstitutional conduct of their subordinates[.]");
Weigher v. Prison Health Servs., 402 F.App'x
668, 670 (3d Cir. 2010) (holding that a private corporation
providing medical services at a state correctional facility
cannot be held liable under a theory of respondeat
superior in a § 1983 suit).To state a claim against
these defendants, Plaintiff must allege that they violated
his constitutional rights through they own actions,
or promulgated specific policies that led to the
constitutional violations. See Ashcroft, 556 U.S. at
676 ("[A] plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.");
Caldwell v. Egg Harbor Police Dep't, 362
F.App'x 250, 251 (3d Cir. 2010) (holding that to raise a
policy claim, a plaintiff must identify the specific policy
in question, not simply state generally that an unspecified
policy exists). Plaintiff has not done so here against any of
these defendants. Accordingly, all § 1983 claims against
the aforementioned defendants are dismissed without
balance of the TAC, which consists of (1) denial of medical
services claims against individual medical defendants with
regard to Plaintiffs current incarceration, and (2) state law
tort claims against non-public defendants, that accrued
within the two years prior to the filing of the original
Complaint, are permitted to proceed past screening.
therefore on this 30 day of June, 2017, ORDERED that
Plaintiffs application to proceed in forma pauperis
is hereby GRANTED; it is further
that the Third Amended Complaint shall be filed; it is
that, pursuant to 28 U.S.C. § 1915(b) and for purposes
of account deduction only, the Clerk of the Court shall serve
a copy of this Order by regular mail upon the Attorney
General of the State of New Jersey and the Administrator ...