United States District Court, D. New Jersey
P. MCNULTY, ESQ. GREGORY G. WAITE, ESQ. Kennedys CMK LLP
Attorneys for Plaintiff Donta Tyrone Gillie
CARPENITO, United States Attorney District of New Jersey By:
DAVID V. SIMUNOVICH, Assistant United States Attorney Office
of the United States Attorney Attorneys for Defendant United
States of America
B. SIMANDLE U.S. District Judge
matter comes before the Court on Defendant United States of
America's motion to dismiss the complaint. [Docket Entry
35]. Plaintiff Donta Tyrone Gillie opposes the motion.
[Docket Entry 38]. 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 the Court
lacks jurisdiction over the amended complaint due to
Plaintiff's failure to exhaust his administrative
remedies prior to filing his original complaint, and (2)
whether the amended complaint is time-barred under the
Federal Tort Claims Act (“FTCA”). The Court finds
that it has jurisdiction over the complaint under the FTCA,
but that is it barred by the statute of limitations, 28
U.S.C. § 2401(b). Therefore, the Court will grant the
motion to dismiss under Federal Rule of Civil Procedure
10, 2014, Plaintiff filed a complaint in this Court against
Steven Esposito, Pradip Patel, and Abigail Lopez de Lasalle
in their individual capacities as employees of the Federal
Bureau of Prisons (“BOP”). [Complaint, Docket
Entry 1]. The Court administratively terminated the complaint
on July 14, 2014 after denying Plaintiff's in forma
pauperis application and instructing the Clerk to send a new
form to Plaintiff. [Docket Entry 2]. The Court reopened the
matter on April 21, 2015 after receiving a new in forma
pauperis application, [Docket Entry 3], but the notice of
electronic filing was returned as undeliverable on May 4,
2015, [Docket Entry 4]. The Court therefore administratively
terminated the complaint on May 28, 2015 under Local Civil
Rule 10.1. [Docket Entry 5].
provided his new address on June 8, 2015, and the Court
reopened the proceedings. [Docket Entry 6]. Plaintiff moved
for nunc pro tunc service of his complaint, [Docket Entry 7],
which the Court denied when it granted his in forma pauperis
application as it had not completed its screening under 28
U.S.C. § 1915, [Docket Entry 8].
Court completed its screening of the complaint on February
29, 2016. [Docket Entries 11 & 12]. The complaint alleged
that Plaintiff saw Esposito, a physician's assistant, for
a “chronic care encounter” on February 3, 2013
while Plaintiff was detained at FCI Fort Dix in New Jersey.
[Complaint ¶ 2]. Plaintiff alleged that he had been
experiencing pain in his wrist and told Esposito he believed
it was broken. [Id. ¶ 3]. Esposito examined
Plaintiff's wrist and told him it was not broken. He told
Plaintiff to purchase a brace and over-the-counter pain
medication to treat the pain and swelling. [Id.
¶ 4]. He further indicated to Plaintiff that the pain
and swelling should decrease over time if Plaintiff followed
the instructions. [Id.].
questioned Esposito's diagnosis as Esposito had not
performed an x-ray. Id. ¶¶ 4-5]. Esposito
then became “agitated and began screaming at
[Plaintiff] that ‘[Plaintiff] was no doctor,' that
[Esposito] ‘would determine if [Plaintiff's] wrist
was broken'” and ordered Plaintiff to leave before
Plaintiff could see his physician, Dr. Patel. [Id.
¶ 5]. Plaintiff asserts the clinical encounter form does
not reflect the seriousness of his pain or the fact he told
Esposito he believed his wrist was broken even though there
is a notation of “wrist pain.” [Id.
purchased pain medication and a wrist brace as per
Esposito's advice. [Id. ¶ 7]. His wrist
continued to hurt, so he returned to medical on May 2, 2013
for further care. [Id. ¶ 8]. Esposito examined
Plaintiff's wrist and recommended an x-ray. [Id.
¶ 9]. The x-ray was taken the next day and showed a
“nondisplaced scaphoid waist fracture” in
Plaintiff's left wrist. [Id. ¶ 10]. Dr.
Patel reviewed the x-ray report and recommended that
Plaintiff consult with orthopedics. [Id. ¶ 11].
Winfred Williams examined Plaintiff on May 21, 2013.
[Id. ¶ 13]. He recommended Plaintiff have
surgery and warned him that “due to delay between the
injury and the proper diagnosis, even with corrective
surgery, [Plaintiff] would likely have permanent damage to
[his] wrist, thereby preventing [him] from ever regaining the
wrist's full range of motion.” [Id. ¶
14]. Plaintiff underwent surgery on July 22, 2013, which
included taking a bone graft and bone marrow from his hip for
his wrist. [Id. ¶ 15].
surgery, Plaintiff was returned to his cell instead of being
reassigned to a first-floor room or being placed in the
medical observation rooms. [Id. ¶ 16]. He was
not given any pain medication. [Id.]. The next day
he was issued a wheelchair but did not get a first-floor pass
until four days later. In the meantime, he was required to
climb to the second floor three times a day for meals.
[Id. ¶ 17]. The prison moved him back to the