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Baumbach v. Mills

United States District Court, D. New Jersey, Camden Vicinage

January 29, 2019




         Plaintiff Edward J. Baumbach, a prisoner confined in South Woods State Prison in Bridgeton, New Jersey, brings this civil rights action under 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff filed an application to proceed in forma pauperis (“IFP”) (ECF No. 1-2), which establishes his eligibility to proceed without prepayment of fees under 28 U.S.C. § 1915. Plaintiff also filed a motion to appoint pro bono counsel. (Mot. to Appoint Counsel, ECF No. 2).

         When a prisoner is permitted to proceed without prepayment of the filing fee or when the prisoner pays the filing fee for a civil action and seeks redress from a governmental entity, officer or employee of a governmental entity, 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b) and 42 U.S.C. § 1997e(c)(1) require courts to review the complaint and sua sponte dismiss any claims that are (1) frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant who is immune from such relief. For the reasons discussed below, the Court will dismiss the complaint without prejudice for failure to state a claim.

         I. Sua Sponte Dismissal

         Courts must liberally construe pleadings that are filed pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Thus, “a pro se complaint, however inartfully pleaded, must be held to ‘less stringent standards than formal pleadings drafted by lawyers.'” Id. (internal quotation marks omitted). “Court personnel reviewing pro se pleadings are charged with the responsibility of deciphering why the submission was filed, what the litigant is seeking, and what claims she may be making.” See Higgs v. Atty. Gen. of the U.S., 655 F.3d 333, 339-40 (3d Cir. 2011) (quoting Jonathan D. Rosenbloom, Exploring Methods to Improve Management and Fairness in Pro Se Cases: A Study of the Pro Se Docket in the Southern District of New York, 30 Fordham Urb. L.J. 305, 308 (2002)).

         A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556.) Legal conclusions, together with threadbare recitals of the elements of a cause of action, do not suffice to state a claim. Id.

         Thus, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. If a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice but must permit the amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002).


         A. The Complaint

         Plaintiff alleges the following facts in his Complaint, accepted as true for purposes of screening the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b) and 42 U.S.C. § 1997e(c)(1). On July 11, 2018, Plaintiff told the nurse on duty at morning pill call that he was having chest pain. (Compl., ECF No. 1 at 5.) The nurse called a “Code 53”[1] and Plaintiff was given “nitro.” (Compl., ECF No. 1 at 5.) Thirty minutes later, Plaintiff was given Maalox. (Id.) Plaintiff saw a nurse practitioner on July 13, 2018, and she sent him back to the unit. (Id. at 6.) On July 14, 2018, Plaintiff saw a nurse in sick call, and she gave him “Acid Gas” pills. (Id.) Plaintiff complained of shortness of breath and wheezing but no chest x-ray was ordered. (Id.)

         On July 19, 2018, Plaintiff was scheduled for a chest x-ray on July 23. (Id.) In the meantime, Plaintiff was rushed to the hospital on July 21, 2018. (Id.) Plaintiff alleges that

[i]f the Medical Department Nurse Practitioner Renee Mills would of [sic] reviewed Plaintiff's medical history instead of giving him Malox [sic] and sending Plaintiff back to the unit, it would of [sic] revealed two (2) prior heart attacks as well as blood clots and a collaspe [sic] lung. Nurse Renee Mill[s], NP neglect is clear and she must be held accountable as well as South Wood[s] State Prison Medical Department. So now Plaintiff has to ware [sic] a heart monitor and will need surgery to place a pacemaker in his chest.

(Compl., ECF No. 1 at 6-7.)

         B. Claims Under 42 ...

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