United States District Court, D. New Jersey
BENJAMIN J. DAVIS, Plaintiff,
COUNTY OF CAPE MAY, et al., Defendants.
B. KUGLER, United States District Judge.
matter comes before the Court by way of Plaintiff Benjamin J.
Davis’ Complaint, asserting violations of the Eighth
Amendment under 42 U.S.C. § 1983, and related state law
claims. Presently before the Court is Defendants’
Motion for Summary Judgment. (ECF No. 18). Plaintiff filed an
Opposition (ECF No. 23) and Defendants filed a Reply (ECF No.
24). For the reasons set forth below, the Court will grant in
part Defendants’ motion.
case arises from Plaintiffs incarceration at the Cape May
County Correctional Center. On January 13, 2017, Plaintiff
woke up and was experiencing sharp and severe abdominal pain.
Initially, Plaintiff believed that he was experiencing a
stomachache or cramp and tried to “walk it off during
recreation time. (ECF No. 23-9, at 3). After returning from
recreation, at around 9:00 a.m., Plaintiff told Defendant
Mellina that he was in severe pain despite trying to
“walk it off and that the pain “felt like
somebody was stabbing” him. (Id). Defendant
Mellina advised Plaintiff to fill out a “request
slip” for the nurse and that the nurse “will get
to [him] when she can.” (Id). According to
Plaintiff, this process could “take a few days
sometimes to get a response.” (Id).
makes conflicting allegations as to what transpired next,
stating at times that he completed the slip and believes he
handed it to an officer and other times stating that he does
not recall completing or handing in the slip. (ECF No. 23-9,
at 2). Plaintiff was unable to eat lunch and believes that
another inmate (now deceased) reported his condition to an
unspecified official. After lunch, Plaintiffs pain
intensified to the point where he was nearly immobile, in
almost a fetal position, but otherwise had no other symptoms.
2:00 or 3:00 p.m., Plaintiff again requested medical
attention from Defendant Mellina, advising that his pain had
only increased in severity. Defendant Mellina again advised
Plaintiff to complete a request slip to see the nurse.
Because Plaintiff believed-perhaps erroneously-that he had
already completed and submitted a slip, that it was not
necessary to submit a second slip.
shift change, at around 6:00 and 7:00 p.m., Plaintiff
requested medical assistance from a new officer, who left to
contact the nurse. Shortly thereafter, officials took
Plaintiff by wheelchair to the nurse’s office, where
the nurse diagnosed him with appendicitis and stated that he
needed to go to the hospital.
waited an hour and a half, in very serious pain, waiting for
transportation to the hospital. During that timeperiod and in
response to Plaintiffs request for an update, Defendant
Quinlan told Plaintiff to relax, that they would take him to
the hospital when they could, and asked Plaintiff whether he
“was sure he didn’t need to take a shit.”
(ECF No. 23, at 8).
arriving at the hospital at approximately 9:00 p.m., staff
rushed Plaintiff into surgery, for a laparoscopic
appendectomy. Defendant Reeb accompanied Plaintiff into the
operating room and refused to leave, advising that there was
a “policy” that he stay in the room during
Plaintiffs surgery. (ECF No. 23-9, at 3).
January 14, 2017, the day after the surgery, it appears that
someone, presumably a corrections employee, had shackled
Plaintiff to the recovery room bed and advised someone that a
policy required Plaintiff to remain shackled for
“security reasons.” (ECF No. 23-9, at 3).
According to one of the treating nurses, Nurse Magnual,
moving about after such a procedure is necessary for a proper
recovery. If a patient does not ambulate after surgery, she
advised that a patient could develop an ileus, a blockage
which causes a patient to experience significantly more pain.
next day, at around 9:00 a.m., another nurse, Nurse McNeal,
became aware that Plaintiff was unable to get out of bed, and
advised Defendant Cattell that Plaintiff needed to get out of
bed in order to avoid complications. Defendant Cattell
refused to immediately comply, referring to the bed
restriction policy and cited that same policy to Nurse
McNeal’s supervising nurse. Between an hour and an hour
and a half later, Defendant Cattell contacted his sergeant
who allowed Defendant Cattell to unshackle Plaintiff and
permit him to get out of bed.
the next few days, Plaintiff’s condition deteriorated
and on January 16, 2017, a doctor opined that Plaintiff was
having a “questionable partial small bowel
obstruction” that he believed was “most likely an
ileus.” (ECF No. 23-9, at 4). On January 19, 2017,
Plaintiff underwent a second surgery to address the ileus,
and returned to the jail on January 25, 2017. He had no
further issues relating to his stomach or the appendicitis
for the remainder of his sentence.
September 8, 2017, Plaintiff named: the County of Cape May;
the Cape May County Sheriff’s Office; the County of
Cape May Correctional Facility; Warden Donald J. Lombardo;
Correctional Officer Mellina; Correctional Officer Quinlan;
Correctional Officer Crawley; Correctional Officer Reeb;
Correctional Officer Cattel; and Correctional Officer Frame
as Defendants in this matter. Plaintiff sues the individual
Defendants in their individual and official capacities.
Plaintiff brings claims under 42 U.S.C. § 1983, alleging
that Defendants violated his rights under the Eighth
Amendment, as well as corresponding state law claims.
STANDARD OF REVIEW
should grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Tolan v. Cotton, 572
U.S. 650, 656-57 (2014). In deciding a motion for summary
judgment, a court must construe all facts and inferences in
the light most favorable to the nonmoving party. See
Cotton, 572 U.S. at 657. The moving party bears the
burden of establishing that no genuine issue of material fact
remains. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). “[W]ith respect to an issue on which the
nonmoving party bears the burden of proof, ” the moving
party may discharge its burden “by
‘showing’-that is, pointing out to the district
court-that there is an absence of evidence to support the
nonmoving party’s case.” Id. at 325.
moving party meets its threshold burden, the opposing party
must present actual evidence that creates a genuine issue as
to a material fact for trial. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); see also
Fed. R. Civ. P. 56(c) (setting forth types of evidence that
may show that genuine issues of material fact exist). The
non-moving party must at least present probative evidence
from which the jury might return a verdict in his favor.
Anderson, 477 U.S. at 257. Where the non-moving
party fails to “make a showing sufficient to establish
the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof
at trial, ” the movant is entitled to summary judgment.
Celotex, 477 U.S. at 322. “[Unsupported
allegations . . . and pleadings are insufficient to repel
summary judgment.” Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990);
see also Scheidemantle v. Slippery Rock Univ. State Sys.
of Higher Educ, 470 F.3d 535, 538 (3d Cir. 2006)
(“To prevail on a motion for summary judgment, the
nonmoving party needs to show specific facts such that a
reasonable jury could find in that party’s favor,
thereby establishing a genuine issue of fact for
asserting that a fact is or is not genuinely in dispute
“must support the assertion by citing to particular
parts of materials in the record . . . or showing that
[those] materials . . . do not establish the absence or
presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1)(A)-(B). In evaluating
whether a court should grant summary judgment, the
“court need consider only the cited materials, but it
may consider other materials in the record.”
preliminary matter, the Court will address Plaintiffs
numerous requests to deny Defendants’ motion for
summary judgment as premature. According to Plaintiff, he
“anticipate[s]” conducting numerous depositions
of the Defendants and healthcare professionals, other than
Nurse McNeal, as discovery is “far from
complete.” (ECF No. 23, at 5, 14). Plaintiff also
complains that he has not had “an opportunity to
present an expert report on the relationship between the
delay in allowing [Plaintiff] to ambulate and the need for
the second surgery.” (Id. at 9). In essence,
Plaintiff seems to argue that he is still investigating this
case. The appropriate mechanism to seek such a delay,
however, is through a Rule 56(d) motion. See, e.g.,
Malouf v. Turner, 814 F.Supp.2d 454, 459 (D.N.J. 2011).
Rule 56(d), if a nonmoving party “shows by affidavit or
declaration that, for specified reasons, it cannot present
facts essential to justify its opposition, the court
may” defer or deny the motion, or allow additional time
to take discovery. Fed.R.Civ.P. 56(d). A nonmoving party
should identify the alleged evidence, how they would preclude
summary judgment, and why that party had not previously
obtained such evidence. Croker v. Applica Consumer Prod,
Inc., No. 05-3054, 2006 WL 626425, at *3 (D.N.J. Mar.
10, 2006) (citing Pastore v. Bell Telephone Co., 24
F.3d 508, 511 (3d Cir.1994)).
Rule 56(d) allows a nonmoving party to oppose a premature
motion in situations where the nonmoving party has not had an
opportunity to make full discovery. Levine v. Bank Alt
LLC, No. 18-6400, 2018 WL 6573477, at *3 (D.N.J. Sept.
25, 2018); see also Celotex, 477 U.S. at 326.
present case, Plaintiff has not attached a Rule 56(d)
affidavit. Nevertheless, the failure to attach a Rule 56(d)
affidavit is not automatically fatal if the requisite
information is within the party’s opposition papers.
See St. Surin v. Virgin Islands Daily News, Inc., 21
F.3d 1309, 1314 (3d Cir. 1994) (addressing then Rule 56(f)).
speaking, Plaintiffs opposition identifies who he wishes to
depose but only vaguely speculates that they “will
yield additional evidence to support [Plaintiffs]
claims.” (ECF No. 23, at 14). Conversely, Plaintiff
explains how an expert report would preclude summary judgment
on the “relationship between the delay in allowing
[him] to ambulate and the need for the second surgery,
” but fails to identify any proposed expert.
(Id. at 9).
critically, however, fact and expert discovery in this matter
have concluded, and the parties advised that they do not
intend to name trial experts. (ECF Nos. 11, 16). Plaintiff
offers no explanation as to why he was unable to depose
any of the Defendants and nearly all of the
healthcare providers. Nor does he explain why he failed to
secure an expert report within the approximately one-year
discovery period, which included a number of discovery
extensions. (See ECF Nos. 11, 16). Consequently,
although Plaintiff may correctly state that “discovery
in this matter is far from complete, ” he had ample
opportunity to make full discovery. (ECF No. 23, at 5).
result, even construing Plaintiff’s requests as a
proper Rule 56(d) motion, Plaintiff fails to make the
requisite showing to deny summary judgment under the Rule.
Accordingly, the Court will deny Plaintiff’s request
and address the motion for summary judgment on the record
currently before the Court.
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