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Dorval v. Ahsan

United States District Court, D. New Jersey

February 15, 2018

JEAN DORVAL, Plaintiff,
v.
ABU AHSAN et al., Defendants.

          OPINION

          FREDA L. WOLFSON, U.S.D.J.

         I. INTRODUCTION

         Plaintiff, Jean Dorval (“Dorval”), is a state prisoner, presently incarcerated at East Jersey State Prison, in Rahway, New Jersey. He is proceeding with a civil rights complaint filed under 42 U.S.C. § 1983. Presently before the Court is a motion by defendants, Abu Ahsan, Donique Ivery, and Ihuoma Nwachukwu (collectively, “Defendants”) for partial summary judgment to dismiss Dorval's state law claims for medical negligence. (ECF No. 63.) For the following reasons, the motion is GRANTED.

         II. BACKGROUND

         The Complaint alleges that Defendants, who treated Dorval while he was previously incarcerated at New Jersey State Prison, were deliberately indifferent to his serious medical needs, specifically by refusing to provide him vitamins B1 and B6, which he was prescribed following back surgery, and by delaying his follow-up treatment. (Compl., ECF No. 1, ¶¶ 9-20.) Dorval claims that these failures necessitated a second back surgery and resulted in permanent nerve damage. (Id. ¶¶ 21, 53.) In addition to his federal claims, Dorval alleges that Defendants' acts also constituted medical negligence.[1] (See Id. ¶¶ 32-47.)

         Since early in this proceeding, Defendants have sought dismissal of Dorval's medical-negligence claims based on his failure to produce an affidavit of merit under New Jersey Statutes Annotated § 2A:53A-27. On January 12, 2015, Defendants filed a motion to dismiss the medical-negligence claims on this basis under Federal Rule of Civil Procedure 12(b)(6), noting that over 120 days had elapsed since they had filed answers demanding that Dorval produce such an affidavit. (ECF No. 19.) Though unopposed, the Court denied Defendants' motion without prejudice on August 3, 2015, finding, under Nuveen Municipal Trust ex rel. Nuveen High Yield Municipal Bond Fund v. Withumsmith Brown, P.C., 692 F.3d 283, 303 n.13 (3d Cir. 2012), certifying questions to 213 N.J. 527 (2013), that the failure to produce an affidavit merit is properly raised in a motion for summary judgment under Federal Rule of Civil Procedure 56, not a motion to dismiss for failure to state a claim under Rule 12(b)(6). (ECF No. 30.)

         Defendants subsequently filed a first motion for partial summary judgment, on September 11, 2015. (ECF No. 34.) Although Dorval responded to this motion, he did not address any of the pertinent legal issues. (See ECF No. 36.) The Court, in assessing this motion, noted that Dorval had twice previously applied for the appointment of pro bono counsel and that he then appeared “unable to effectively litigate the affidavit of merit issues without the assistance of appointed pro bono counsel.” (See Op., ECF No. 39, at 6-7.) Accordingly, the Court denied Defendants' motion, ordered that Dorval receive appointed pro bono counsel for the limited purpose of helping to obtain an affidavit of merit, and, finding extraordinary circumstances, extended Dorval's time to produce such an affidavit until sixty days after the assignment of counsel. (Id. at 6-10; Order, ECF No. 40.)

         Dorval was assigned pro bono counsel on August 29, 2016. (ECF No. 41.) On October 25, 2016, Dorval's counsel filed a motion for a ninety-day extension of time to obtain an affidavit of merit. (ECF No. 43.) Defendants opposed any extension. (ECF No. 44.) On January 30, 2017, Magistrate Judge Tonianne J. Bongiovanni denied the motion for an extension of time. (ECF No. 46.) Shortly thereafter, Dorval was again deemed to be proceeding pro se. (ECF No. 49.)

         On March 17, 2017, Defendants filed a motion seeking dismissal of both the medical-negligence claims and the deliberate-indifference claims. (ECF No. 52.) The Court denied this motion without prejudice, noting, as it had previously, that arguments concerning a plaintiff's failure to produce an affidavit of merit must be asserted in a motion for summary judgment, and finding that Defendants had failed to file a proper summary-judgment motion under Rule 56. (ECF No. 56.)

         Defendants then filed a second motion seeking dismissal of the medical-negligence claims and the deliberate-indifference claims. (ECF No. 57.) On December 7, 2017, the Court denied this motion, finding that Defendants had again failed to file a proper summary-judgment motion under Rule 56. (ECF No. 62.) The Court gave Defendants fourteen days to file a proper motion for summary judgment and “not . . . a hybrid motion.” (Id.)

         On December 19, 2017, Defendants filed a motion, presently pending before the Court, seeking partial summary judgment dismissing Dorval's medical-negligence claims for failure to timely provide an affidavit of merit under § 2A:53A-27. (ECF No. 63.) Dorval filed an opposition to the motion on January 11, 2018, (ECF No. 65), and Defendants filed a reply the same day, (ECF No. 64).

         III. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56 permits a court to award a party summary judgment only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute is genuine if supported by evidence such that a reasonable jury could return a verdict in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251-52 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Kaucher v. County of Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006). A fact is material if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. See Anderson, 477 U.S. at 248; Kaucher, 455 F.3d at 423. In determining whether a genuine dispute of material fact exists, the Court must view the facts and all reasonable inferences drawn from those facts “in the light most favorable to the [non-movant].” Matsushita, 475 U.S. at 587.

         A movant for summary judgment “bears the initial responsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-movant then carries the burden to “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). Moreover, the non-movant may not rest upon the mere allegations or denials of the pleadings. Id. at 324; Maidenbaum v. Bally's Park Place, Inc., 870 F.Supp. 1254, 1258 (D.N.J. 1994), aff'd67 F.3d 291 (3d Cir. 1995). The non-movant must “do more than simply show that there is some ...


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