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Gillie v. Esposito

United States District Court, D. New Jersey

December 11, 2018

STEVEN ESPOSITO, et al., Defendants.

          JOSEPH P. MCNULTY, ESQ. GREGORY G. WAITE, ESQ. Kennedys CMK LLP Attorneys for Plaintiff Donta Tyrone Gillie

          CRAIG 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


          JEROME B. SIMANDLE U.S. District Judge


         This 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).

         The 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 12(b)(6).


         On June 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].

         Plaintiff 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].

         The 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.].

         Plaintiff 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. ¶ 6].

         Plaintiff 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].

         Dr. 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].

         After 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. ΒΆ 17]. The prison moved him back to the ...

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