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South v. New Jersey Department of Corrections

United States District Court, D. New Jersey

October 31, 2018

JEREMY D. SOUTH Plaintiff,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, et al. Defendants.

          OPINION

          FREDA L. WOLFSON, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff, Jeremy D. South (“plaintiff” or “South”), a prisoner currently incarcerated at South Woods State Prison, seeks to bring this civil action in forma pauperis (“IFP”), without prepayment of fees or security, asserting claims pursuant to 42 U.S.C. § 1983 and the New Jersey Civil Rights Act. The Court previously denied his IFP application without prejudice. Plaintiff resubmitted his IFP application, and the Court will now grant his application to proceed in forma pauperis.

         At this time, the Court must also review the complaint under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A 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. For the following reasons, the Court will dismiss the claims brought against Christopher S. Porrino; Gary M. Lanigan; Rajiv K. Shah, MD; Perera; Sharmalie, MD; Paul Weiser, MD; Cynthia Merkling; RNFA Cielito; Louis G. Fares, II, MD; Denise V. Rogers; and Elizabeth Topol, in their official capacities with prejudice and claims brought in their individual capacities without prejudice. South's claims against the New Jersey Department of Corrections are dismissed with prejudice. And, his claims against UMDNJ and UCHC are dismissed without prejudice. Finally, the Court will deny without prejudice plaintiff's motion for the appointment of pro bono counsel.

         II. BACKGROUND

         The factual allegations of the complaint will be construed as true for the purposes of this opinion. The complaint appears to allege claims of inadequate medical treatment in violation of the United States and New Jersey Constitutions. It names as defendants the New Jersey Department of Corrections; Christopher S. Porrino, as Attorney General for the State of New Jersey; Commissioner Gary M. Lanigan; St. Francis Medical Center; Rajiv K. Shah, MD; Perera; Sharmalie, MD; Paul Weiser, MD; Cynthia Merkling; RNFA Cielito; Louis G. Fares, II, MD; UMDNJ; Denise V. Rogers; University Correctional Health Center (“UCHC”); Elizabeth Topol; and John and Jane Does I-II. (Compl., ECF No. 1.)

         South alleges that he suffers from a clinical history of “stomach problems” such as nausea, vomiting, and dehydration. (Id. ¶¶ 10-11.) It appears that the East Jersey State Prison physician, Dr. Winetsky, conducted a No. of tests on South that were inconclusive as to the cause of these issues. (Id. ¶ 12.) South claims that after he filed a series of Inmate Remedy System Forms, Dr. Winetsky ordered additional medical testing. (Id. ¶¶ 13-15.) South additionally claims he wrote to Topol, UCHC, and UMDNJ regarding his medical complaints. (Id. ¶ 16.)

         On February 19, 2016, South underwent a CAT Scan at St. Francis Medical Center that revealed two possible proximal malrotations, described by South as “twisted bowels.” (Id. ¶¶ 18-19.) Following that CAT scan, South again consulted with Dr. Winetsky and Dr. Rajiv Shah of St. Francis Medical Center. (Id. ¶ 20.) Dr. Shah recommended South undergo another CAT scan in six months. (Id. ¶ 21.)

         On August 9, 2016, South underwent a second CAT scan, which was performed by defendants Perera and Sharmalie. (Id. ¶ 23.) Based on the results of that CAT scan, it appears that Dr. Shah and Dr. Winetsky recommended that South undergo surgery for a possible proximal malrotation. (Id.)

         On October 19, 2016, South was transferred to St. Francis Medical Center for an exploratory laparotomy. (Id. ¶ 27.) At that time, Dr. Shah allegedly informed South, for the first time, that his “pancreas may need to be removed due to migration and displacement within the body cavity.” (Id.) Prior to his surgery on October 20, 2016, South signed a consent form that he insists did not include consent for hernia surgery. (Id. ¶ 28.) After surgery was completed, Dr. Shah told South that the surgery was “uneventful” and explained that during the surgery he moved the bowels, “possibly fix[ing] the problem.” (Id. ¶¶ 34-38.)

         South was transported back to East Jersey State Prison on October 25, 2016, but he alleges that he had not yet recovered from surgery and should not have been discharged. (Id. ¶ 39.) Shortly thereafter, South was seen by Dr. Winetsky who told him that the surgery was “uneventful” and that despite the surgery, he would probably still get sick. (Id. ¶ 40.)

         In early November 2016, South alleges he had multiple video teleconferences regarding his condition with representatives from St. Francis Medical Center, UMDNJ, UCHC, and the Department of Corrections. (Id. ¶¶ 43-46.) During a video teleconference with Dr. Shah, St. Francis Medical Center, and the Department of Corrections, South reported a bulge on the lateral side of his abdomen that had been presenting intermittently. (Id. ¶ 46.) Dr. Shah allegedly told him the bulge could be a hernia. (Id. ¶ 47.)

         On November 22, 2016, South was seen by Dr. Winetsky, who confirmed the hernia diagnosis and ordered South to wear an abdominal binder. (Id. ¶ 54.) On November 28, 2016, South received the abdominal binder and reported to “UMDNJ and/or UCHC of the pain I was experiencing due to the untreated hernia and following bowel surgery.” (Id. ¶ 55.) On December 1, 2016, South signed consent forms for a “gastroenterology and colonoscopy.” (Id. ¶ 56.) The complaint does not indicate that South received any additional treatment until June 17, 2017, when he reported to Mildred Johnson, RN “of the pain and suffering [he] was experiencing as a result of Defendants' failure to treat.” (Id. ¶ 57.)

         South seeks against each defendant $10, 000 in compensatory damages and $50, 000 in punitive damages. (Id. ¶¶ 72-73.) South further seeks injunctive relief in the form of an Order directed at the Department of Corrections, UMDNJ, or UCHC to order an endoscopic exam and hernia surgery at J.F.K. Memorial Hospital, Cooper Medical Center, or Robert Wood Johnson; and barring further treatment of South at St. Francis Medical Center. (Id. ¶¶ 67-70.) South additionally seeks an injunction against the Department of Corrections barring it from transporting him in a ‘kennel-style' bifurcated-van.” (Id. ¶ 71.)

         III. ...


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