United States District Court, D. New Jersey
JEREMY D. SOUTH Plaintiff,
NEW JERSEY DEPARTMENT OF CORRECTIONS, et al. Defendants.
L. WOLFSON, UNITED STATES DISTRICT JUDGE
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.
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.
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.)
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.)
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.)
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.)
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. ¶¶
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.)
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.)
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.)
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.