United States District Court, D. New Jersey
Scott, Plaintiff Pro Se.
B. SIMANDLE U.S. DISTRICT JUDGE.
the Court is Plaintiff Joseph Scott's
(“Plaintiff”), submission of a civil rights
complaint, Docket Entry 1. At this time, the Court must
review the complaint, pursuant to 28 U.S.C. § 1915 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 such relief. For the reasons set
forth below, the Court concludes that the complaint will
proceed in part.
brings this civil rights action against Dr. Stephany McGann,
Nurse Denise Rodriguez, Candice Johnson, and the Utilization
Review Committee of FCI Fairton. He also seeks to bring a
Federal Tort Claims Act (“FTCA”) claim against
the United States. The following factual allegations are
taken from the complaint and are accepted for purposes of
this screening only. The Court has made no findings as to the
truth of Plaintiff's allegations.
is a convicted and sentenced federal prisoner currently
confined at FCI Fairton, New Jersey. Plaintiff states that he
was taken to an emergency room for surgery on his rotator
cuff and bicep on August 17, 2016. Complaint ¶ 10. He
was told he would need physical therapy after the surgery.
Id. He began physical therapy in a clinic outside of
the prison on November 28, 2016 and was told to begin
“home therapy.” Id. ¶ 11. Plaintiff
went back to the physical therapy clinic on December 22,
2016. Id. ¶ 12. The therapist told Plaintiff he
had “Anterior Deltoid Atrophy (Muscle Atrophy) with
limitations with passive internal movements.”
Id. Plaintiff received therapeutic exercises and was
told to follow-up in one week. Id.
March 2017, Plaintiff requested physical therapy from Nurse
Rodriguez. Id. ¶ 13. She responded on March 6,
2017 that his request had been denied. Id. ¶
14. Neither Nurse Rodriguez nor Dr. McGann conducted an
examination of Plaintiff's shoulder before denying his
request for physical therapy. Id. ¶ 15.
Plaintiff filed a grievance, but he did not receive any
relief. Id. ¶ 17. He did not receive any
further post-surgical care, just blood pressure checks.
continued to have “extreme” pain and loss of
motion in his shoulder. Id. ¶ 18. Nurse
Rodriguez told Plaintiff the Utilization Review Committee
(“URC”) would likely deny his requests for
physical therapy due to cost. Id. ¶ 20. The URC
denied the physical therapy request on March 24, 2017.
Id. ¶ 21. Plaintiff met with Dr. McGann, the
final decisionmaker on the URC, on April 11, 2017.
Id. ¶¶ 22-23. Dr. McGann told Plaintiff
“he will not be receiving any physical therapy or
referred to an orthopedic specialist due to the expensive
cost.” Id. ¶ 23. Plaintiff met with Dr.
McGann again on July 10, 2017, at which time she told him to
get over-the-counter pain medication from the prison store.
Id. ¶ 24.
asks the Court to order defendants to arrange for his
prescribed physical therapy as well as compensatory and
STANDARD OF REVIEW
Standards for a Sua Sponte Dismissal
Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26,
1996) (“PLRA”), district courts must review
complaints in those civil actions in which a prisoner is
proceeding in forma pauperis, see 28 U.S.C. §
1915(e)(2)(B), seeks redress against a governmental employee
or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42 U.S.C. §
1997e. The PLRA directs district courts to sua sponte dismiss
any claim that is frivolous, is malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. This
action is subject to sua sponte screening for dismissal under
28 U.S.C. § 1915 because Plaintiff is a prisoner
proceeding in forma pauperis.
determining the sufficiency of a pro se complaint, the Court
must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus,551 U.S. 89,
93-94 (2007) (following Estelle v. Gamble, 429 U.S.
97, 106 (1976)); see also United States v. Day, 969
F.2d 39, 42 (3d Cir. 1992). According to the Supreme
Court's decision in Ashcroft v. Iqbal, “a
pleading that offers ‘labels or conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). To survive sua sponte screening for failure
to state a claim,  the complaint must allege
“sufficient factual matter” to show that the
claim is facially plausible. Fowler v. UPMS
Shadyside,578 F.3d 203, 210 (3d Cir. 2009) (citation
omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Fair Wind Sailing,
Inc. v. Dempster,764 F.3d 303, 308 n.3 (3d Cir. 2014)