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Pagliaroli v. New Jersey Department of Corrections

United States District Court, D. New Jersey

March 28, 2019

KENNETH PAGLIAROLI, Plaintiff,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS et al., Defendants.

          OPINION

          FREDA L. WOLFSON United States District Judge.

         I. INTRODUCTION

         Plaintiff, Kenneth Pagliaroli (“Pagliaroli” or “Plaintiff”), is a state prisoner, presently incarcerated at New Jersey State Prison (“NJSP”), in Trenton, New Jersey, who is proceeding pro se with a complaint asserting civil rights claims, under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act (“NJCRA”), and tort claims. (ECF No. 1, at ECF pp. 8-20, Compl.) Presently before the Court are four separate motions for dismissal, under Federal Rule of Civil Procedure 12(b)(6), filed by defendants Abu Ahsan (“Ahsan”), (ECF No. 6), the State of New Jersey and the New Jersey Department of Corrections (“NJDOC”) (collectively, “the State Defendants”), (ECF Nos. 16 & 17), and Ihuoma Nwachukwu (“Nwachukwu”), (ECF No. 18). For the following reasons, these dismissal motions are GRANTED.

         II. BACKGROUND AND ALLEGATIONS

         Pagliaroli filed his Complaint with the Superior Court of New Jersey, Mercer Vicinage, Civil Division, on April 25, 2018. (ECF No. 1 at ECF p. 8.) His pleading is divided into two distinct sections: “Bladder Cancer” and “Neck Injury.” (See id.) In the first section, Pagliaroli alleges that, “[s]ome time around 2013, ” he began to experience abdominal pressure and cramping, which he believed to be signs of bladder cancer. (Id. at ECF p. 11.) He alleges that he explained his suspicions to various medical providers-defendants James Brewin, Provider Adams, Provider Ivory (“Ivory”), Ahsan, and Joy Camarillo (“Camarillo”)[1]-and asked to be tested for bladder cancer, but that each one told him that no test for bladder cancer exists. (See Id. at ECF pp. 11-13.) He complains that, when he asked Ivory to be tested for bladder cancer, she performed a painful and embarrassing rectal test, which never produced any results. (Id. at ECF pp. 11-12.)

         Pagliaroli asserts that, on December 31, 2015, he began to pass bloody urine, and that Camarillo prescribed him antibiotics, despite Pagliaroli's urging her that the cause was bladder cancer. (Id. at ECF p. 13.) He explains that an ultrasound scan was ordered and that, when it was performed two months later, it revealed a cancerous tumor on his bladder. (Id.) He recounts that he went to a hospital to have the tumor surgically removed on April 14, 2016.[2] (Id.)

         In the section titled “Neck Injury, ” Pagliaroli recounts that, on April 19, 2016, when he was being transferred back from the hospital to the prison after undergoing surgery to remove his bladder tumor, he was transported in a van by defendants S.C.O. G. Kern and S.C.O. D. Boone.[3](ECF No. 1 at ECF p. 16.) He alleges that the van driver[4] drove erratically, swerving, speeding, and slamming on the brakes, causing Pagliaroli to be thrown head first against the wall of the van so hard that he lost consciousness. (Id.) He alleges that, after he regained consciousness, his legs felt numb and tingly, and he explains that he was taken to the medical department in a wheelchair upon arriving at the prison. (Id. at ECF pp. 16-17.) Pagliaroli complains that, when he got to the medical department, he “only received a visual from nurses and from Dr. Nwachukwu, with no X-Rays, or MRI or seening [sic] of any kind of specialist for my injury to the neck, and head.” (Id. at ECF pp. 17-18.) Pagliaroli alleges that, after a year had passed, he was placed in therapy for his neck injury and that he still suffers pain resulting from this incident. (Id. at ECF p. 18.)

         Pagliaroli asserts that Defendants were deliberately indifferent to his serious medical needs in violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment. (Id. at ECF pp. 10, 19.) He seeks declaratory judgment and $500, 000 in compensatory damages, as well as costs. (Id. at ECF p. 20.)

         On August 2, 2018, Ahsan, with the consent of Nwachukwu and the State Defendants, removed the action to this Court, under 28 U.S.C. § 1331. (ECF No. 1, Notice of Removal, ¶ 5.) Ahsan indicated that, at the time of removal, other named defendants had not yet been served. (Id.)

         Ahsan and Nwachukwu, who are represented by the same counsel, have now filed individual, but very similar, motions to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). (Ahsan Mot. to Dismiss, ECF No. 6; Nwachukwu Mot. to Dismiss, ECF No. 18.) They both argue that Pagliaroli has failed to state a claim against them, that his claims are barred as untimely, and that his claims must fail as he did not exhaust administrative remedies. (See Ahsan Br. in Supp., ECF No. 6-1; Nwachukwu Br. in Supp., ECF No. 18-1.) Pagliaroli's opposition briefs to these motions are also very similar to each other.[5] (See Opp'n to Ahsan Mot., ECF No. 7; Opp'n to Nwachukwu Mot., ECF No. 19.) Ahsan and Nwachukwu each filed a reply brief to the opposition briefs, and Pagliaroli filed un-permitted sur-replies. (See ECF Nos. 8, 11, 20, & 23.)

         The State Defendants also filed two identical motions to dismiss the Complaint under Rule 12(b)(6). (ECF Nos. 16 & 17.) They raise the same arguments as Ahsan and Nwachukwu, but additionally assert that Pagliaroli failed to file proper notices of tort claims and that his civil rights claims against the State Defendants must be dismissed as they are not persons for the purposes of 42 U.S.C. § 1983 and the NJCRA. (See id.) Pagliaroli has not opposed these motions.

         III. LEGAL STANDARDS

         A. Standard for Review on Motion to Dismiss Under Rule 12(b)(6)

         In resolving a motion to dismiss for failure to state a claim, under Rule 12(b)(6), “‘courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'” Fowler v. UPMC Shadyside,578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny,515 F.3d 224, 233 (3d Cir. 2008)); see also Zimmerman v. Corbett, 873 F.3d 414, 417-18 (3d Cir. 2017), cert. denied 138 S.Ct. 2623 (2018); Revell v. Port Auth, of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010). In other words, a complaint survives a motion to dismiss if ...


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