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Scott v. Manenti

United States District Court, D. New Jersey

November 27, 2018

JOSEPH SCOTT, Plaintiff,
JOHN MANENTI, et al., Defendants.

          JOSEPH SCOTT, Plaintiff pro se.

          CRAIG 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 of America.




         This 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).

         The 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.


         A. Procedural History

         On 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.

         Prior to this Court's review of the complaint pursuant to 28 U.S.C. § 1915A, [1] 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.

         In 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.

         Drs. 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.

         B. Allegations in Pleadings

         Plaintiff 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.

         C. Defendants' Statement of Material Facts

         Joseph 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff's 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.

         Plaintiff 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.

         Plaintiff 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.

         On 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. ΒΆΒΆ 59-60. A mid-level practitioner ...

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