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Davis v. County of Cape May

United States District Court, D. New Jersey

September 18, 2019

COUNTY OF CAPE MAY, et al., Defendants.


          ROBERT B. KUGLER, United States District Judge.

         This 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.

         I. BACKGROUND

         This 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).

         Plaintiff 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.

         Around 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.

         After a 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.

         Plaintiff 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).

         Upon 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).

         On 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.

         The 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.

         Over 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.

         On 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.


         A court 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.

         If the 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 trial.”).

         A party 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.” Fed.R.Civ.P. 56(c)(3).


         As a 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).

         Under 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)).

         Consequently, 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.

         In the 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)).

         Generously 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).

         More 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).

         As a 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.

         A. Municipal Liability ...

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