United States District Court, D. New Jersey
SCOTT, Plaintiff pro se.
CARPENITO, United States Attorney District of New Jersey By:
JESSICA O'NEILL, Assistant United States Attorney Office
of the United States Attorney General Attorneys for
Defendants John Manenti, Ruben Morales, and the United States
HONORABLE JEROME B. SIMANDLE, J.
matter comes before the Court on the motion of Defendants Dr.
John Manenti, Dr. Ruben Morales, and the United States of
America for summary judgment. Docket Entry 110. Plaintiff
Joseph Scott opposes the motion. Docket Entries 113, 115. The
motion is being considered on the papers pursuant to Federal
Rule of Civil Procedure 78(b).
principal issues to be decided are (1) whether Drs. Manenti
and Morales exercised their medical judgment in their
treatment of Plaintiff's right shoulder injury, and (2)
whether Plaintiff's expert report by Registered Nurse
Monica Scott complies with the “enhanced credential
requirements” of New Jersey's affidavit of merit
statute. The Court finds that there are no triable issues of
fact as to whether Drs. Manenti and Morales were deliberately
indifferent to Plaintiff's medical needs. The Court also
finds that Plaintiff has not complied with New Jersey's
requirements for an affidavit of merit in a malpractice
action. Therefore, the Court will grant the summary judgment
motion and dismiss the complaint with prejudice.
September 30, 2015, Plaintiff submitted a civil complaint
alleging Defendants violated his Eighth Amendment right to
adequate medical care by, among other things, denying him an
MRI of his shoulder after experiencing excruciating pain for
nearly two years. Complaint, Docket Entry 1. The Court
administratively terminated the complaint on October 14,
2015, for failure to pay the filing fee or submit an
application to proceed in forma pauperis. Docket
Entry 4. Plaintiff paid the filing fee on October 21, 2015,
and the Court reopened the case for review.
to this Court's review of the complaint pursuant to 28
U.S.C. § 1915A,  Plaintiff filed two motions to amend the
complaint seeking to add a “deliberate
indifference” claim as well as a claim under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 2671-2680. First Motion to Amend,
Docket Entry 11; Second Motion to Amend, Docket Entry 13. The
Court permitted the complaint to proceed in part against Drs.
Manenti and Morales, and the remainder of the defendants were
dismissed. The Court denied Plaintiff's motions to amend
without prejudice as the proposed amendments did not state
valid claims. Order, Docket Entry 18. Plaintiff filed a third
motion to amend containing a notice of claim form received by
the Federal Bureau of Prisons (“BOP”) on October
5, 2015 for $5000 due to the alleged negligence of FCI
Fairton personnel. Third Motion to Amend, Docket Entry 27 at
7-10. The Court denied the motion as a FTCA claim may not be
brought against an individual, only the United States. April
13, 2016 Order, Docket Entry 45. A fourth motion to amend
seeking to add a FTCA claim against the United States was
filed on May 6, 2016. Docket Entry 47. The Court granted the
motion on June 27, 2016. Docket Entry 49. See
Amended Complaint, Docket Entry 50.
addition to his motions to amend the complaint, Plaintiff
also filed a motion for a preliminary injunction requiring
the BOP to perform an MRI of his right shoulder. Motion for
Preliminary Injunction, Docket Entry 43. Once the United
States was served with the amended complaint, the Court
ordered a response to the motion. Order of November 18, 2016,
Docket Entry 68. The motion was dismissed as moot on December
9, 2016 as Plaintiff had received the requested relief,
arthroscopic surgery, on August 17, 2016. Docket Entry 73.
Manenti and Morales now move for summary judgment on
Plaintiff's Eighth Amendment claim, and the United States
moves for summary judgment on the FTCA claim. Plaintiff
asserts there are factual questions requiring resolution by a
jury. The Court decides the motion on the basis of the papers
submitted, without oral argument, pursuant to Rule 78, Fed.
R. Civ. P.
Allegations in Pleadings
alleged in his amended complaint that a torn rotator cuff in
his right shoulder went undiagnosed for over 24 months.
Amended Complaint at 3. He stated the only treatment he
received was cortisone injections. Id. He asserted
he “was examined regularly by Medical Staff but there
[was] a ongoing pattern of ignoring” his condition as
well as “arbitrary and burdensome procedures that
resulted in interminable delays for long periods of time in
order to provid[e] care.” Id. at 5. Plaintiff
alleged he suffered excruciating pain in his right shoulder
for two years that prevented him from sleeping, moving his
arm, or leaving his cell for simple activities. Id.
at 6. He filed a notice of claim with the BOP Northeast
Regional Office on September 30, 2015. Id. at 7.
Defendants' Statement of Material Facts
Scott was a federal inmate at FCI Fairton, New Jersey during
the relevant time period. Defendants' Statement of
Material Facts (“DSOF”), Docket Entry 110-2
¶ 1. The BOP is responsible for providing inmate medical
care. Id. ¶ 2. Dr. Morales, a physician, was
the Clinical Director at Fairton. Id. ¶ 4. Dr.
John Manenti was the Northeast Regional Medical Director.
Id. ¶ 6.
first went to Health Services complaining of pain in his
right shoulder on October 18, 2013. Id. ¶ 7. He
told the nurse practitioner that he had been doing
“dips” when “‘when his shoulder gave
out with a weird noise.'” Id. ¶ 9. He
had been experiencing pain for about six months before coming
to Health Services. Id. ¶ 8. He had history of
pain in his left shoulder for two years
“on-and-off” with pain down the arm. Id.
¶ 12. He denied having pain in his right shoulder most
of the time, except for when he slept. Id. ¶
13. Plaintiff stated he lifted weights among other exercises,
and the nurse practitioner described Plaintiff as
“‘heavily muscled.'” Id.
¶¶ 10-11. He wanted a cortisone shot in his right
shoulder. Id. ¶ 14. The nurse practitioner
noted Plaintiff had a normal range of motion and had a normal
examination. Id. ¶ 15. She recommended
Indomethacin, an x-ray, and an evaluation for a cortisone
shot. Id. ¶ 26. Dr. Morales agreed with this
treatment plan and ordered an x-ray, which was conducted on
November 5, 2013. Id. ¶¶ 17-19. The
radiologist concluded the findings were negative.
Id. Dr. Morales performed a shoulder arthrocentesis
on Plaintiff's right shoulder on November 27, 2013.
Id. ¶ 20.
did not return to Health Services until February 11, 2014.
Id. ¶ 21. Another nurse practitioner examined
him. Id. ¶ 22. He complained that he was still
having pain in his right shoulder. Id. ¶ 23. He
asked for Indomethacin and for the x-ray results.
Id. ¶ 24. The nurse practitioner examined
Plaintiff and noted that he had a “normal active range
of right shoulder motion, and his neurovascular status was
intact.” Id. ¶ 26. She did note that his
shoulder was tender and described Plaintiff's shoulder
condition as chronic. Id. ¶ 27. Plaintiff
received a prescription for 50 milligrams of Indomethacin a
day and was advised to stop lifting weights for six weeks.
Id. ¶ 28. Plaintiff requested a copy of his
x-ray records on February 27, 2014 as he was “in
excruciating pain.” Id. ¶ 29.
next visit to Health Services was six months later on August
14, 2014. Id. ¶ 31. A physician's assistant
conducted the examination; Dr. Morales was not present.
Id. ¶ 32. Plaintiff asserted the steroid
injection he had received made his right shoulder pain worse.
Id. ¶ 34. He denied working out, but the
physician's assistant “noted that his upper body
looked muscular with good definition.” Id.
¶ 35. Plaintiff was provided a sling at his request.
Id. ¶ 37.
requested to visit Health Services on October 22, 2014 and
was seen on October 31 by the physician's assistant.
Id. ¶¶ 38-39. His shoulder showed no
improvement. Id. ¶ 40. He stated that he had
not been using the sling provided at his last visit and
“demanded an MRI.” Id. ¶¶
41-42. The physician's assistant recommended that
Plaintiff have an orthopedic consultation. Dr. Morales agreed
with and co-signed this recommendation. Id. ¶
43. Plaintiff requested permission to visit Health Services
again on December 22, 2014. Id. ¶ 44. A
mid-level practitioner examined him on January 8, 2015.
Id. ¶ 45. Plaintiff received a prescription for
Meloxicam and was told that his request for the consult was
pending. Id. ¶ 46.
saw the orthopedist, Dr. Peter Sarkos, on January 20, 2015.
Id. ¶ 47. Dr. Sarkos found a “slight
tenderness with deep palpation over the right bicipital
groove.” Id. ¶ 48. He determined that
Plaintiff's shoulder was “positive O'Brien test
for cuff and SLAP.” Id. His impression was
that Plaintiff had a “right shoulder rotator cuff tear
and a possible labral tear.” Id. ¶ 49.
Dr. Sarkos recommended a second cortisone shot even though
Plaintiff had not improved with the first one. Id.
¶ 50. He gave Plaintiff an injection of Depo-Medrol and
Lidocaine and indicated Plaintiff should be seen again in one
month for a follow-up. Id. ¶¶ 50-51. He
did not order an MRI scan at this visit. Id. ¶
52. Dr. Morales reviewed Dr. Sarkos' report on January
28, 2015. Id. ¶ 53.
February 17, 2015, Plaintiff returned to Health Services and
was examined by a nurse practitioner. Id. ¶ 55.
Plaintiff “reported increased shoulder pain, which was
worse with movement and with raising his arm. He  requested
anti-inflammatory medication.” Id. ¶ 56.
He was prescribed more Meloxicam. Id. ¶ 57. He
returned on February 23, 2015 claiming continuing pain.
Id. ¶¶ 59-60. A mid-level practitioner