Cherry v. Whitehead

CRYSTAL CHERRY, Plaintiff, v. ERIC WHITEHEAD, JOHN AJEBE, FLORENCE RICHEMOND, TITOLA HUGHES-AKINSANYA, JANET MONROE, DR. MARK SCHUCHMAN JOHN DOE 1-20, JANE DOE 1-20, JOHN ROE 1-20, and JANE ROE 1-20, Defendants.

Civil Action No. 09-cv-04161 (SDW)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

January 25, 2012

NOT FOR PUBLICATION

OPINION

WIGENTON, District Judge.

Before the Court is defendants', Eric Whitehead ("Whitehead"), John Ajebe ("Ajebe"), Florence Richemond ("Richemond"), Titola Hughes-Akinsanya ("Hughes-Akinsanya"), Janet Monroe ("Monroe"), and Dr. Mark Schuchman ("Dr. Schuchman")¹ (collectively "Defendants"), motion to dismiss the second amended complaint of plaintiff Crystal Cherry ("Plaintiff" or "Cherry") in lieu of an answer pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Motion"), filed on their behalves by the State of New Jersey ("State").

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1332 and 1343(a)(3), and 42 U.S.C. § 1983. The Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. Venue is proper under 28 U.S.C. § 1391. This Court,having considered the parties' submissions, decides the motion without oral argument pursuant to Federal Rule of Civil Procedure 78.

For the reasons stated below, this Court GRANTS IN PART AND DENIES IN PART Defendants' Motion.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff is an involuntarily committed patient at Greystone Park Psychiatric Hospital ("Greystone"). (Second Am. Compl. ¶ 4.) Greystone is a psychiatric hospital created, funded and operated by the State. See N.J.S.A. 30:1-7, 30:2-1, 30:4-160. On the dates at issue, Whitehead and Ajebe were allegedly nurses assigned to the area where Plaintiff's room was located, and Richemond and Hughes-Akinsanya were staff members allegedly assigned to the floor where Plaintiff's room was located. (Second Am. Compl. ¶¶ 6-9.) Monroe is the Chief Executive Officer of Greystone. (Id. ¶ 10.) Dr. Schuchman is a psychiatrist at Greystone and a member of the treatment team responsible for Plaintiff's care. (Id. ¶ 11.) The "John Doe," "Jane Doe," "John Roe," and "Jane Roe" numbered defendants are allegedly other members of the treatment team responsible for Plaintiff's care during the relevant time period, as well as unknown nurses and staff members working on the days that other Greystone patients allegedly attacked Plaintiff. (Id. ¶¶ 12-15, 21.)

On or about May 10, 2009, Plaintiff alleges that Tionka Atkins ("Atkins"), another Greystone patient, attacked her inside the hospital after a verbal altercation between them. (Second Am. Compl. ¶¶ 25, 34.) Atkins allegedly had a history of attacking other patients and staff members. (Id. ¶ 27.) After a verbal altercation, Atkins remained near Plaintiff's room and refused to leave despite Plaintiff's request for Atkins to do so. (Id. ¶¶ 30-32.) Defendants Whitehead, Ajebe, Richemond and Hughes-Akinsanya allegedly witnessed the verbal altercationwhich continued until Atkins physically assaulted Plaintiff without provocation. (Id. ¶¶ 26, 35.) As alleged, neither these Defendants nor any other staff member took action to prevent Atkins' attack or protect Plaintiff from it. (Id. ¶ 35.)

On or about May 19, 2009, Plaintiff alleges that she was assaulted a second time by another patient, named "Janine" after a verbal altercation. (Id. ¶¶ 36-39.) As alleged, Defendants Whitehead, Ajebe, Richemond and Hughes-Akinsanya also witnessed the second assault, yet took no action to protect Plaintiff from Janine's attack. (Id. ¶¶ 40, 43.) Plaintiff also alleges that these Defendants "failed to follow regulations[,] policies, or customs promulgated and implemented by Greystone for handling patient attacks on other patients and staff." (Id. ¶ 44.) After both attacks, Plaintiff alleges that she "suffered physical injuries and emotional distress" but received no medical care. (Id. ¶¶ 45-46.)

On or about December 19, 2009, Plaintiff alleges that she was involved in another verbal altercation with "another Greystone patient." (Id. ¶ 47.) After this incident, Plaintiff alleges that Dr. Schuchman summoned her to a "treatment team meeting," during which she denied physically assaulting that other patient, which security footage confirmed, but was nevertheless punished by "stripping her of her 'Level 3' privileges for about 3 months." (Id. ¶¶ 48-52.) Plaintiff contends that Defendant Monroe knew of the treatment team's action, but failed to take "any corrective action", and thus, "ratified" their actions. (Id. ¶ 53.)

Plaintiff also alleges that Monroe, Chief Executive Officer of Greystone, as well as other unnamed defendants were "responsible for promulgating and enforcing policies, practices, customs, and protocols regarding the safety of, treatment of, and care provided to involuntarily committed patients at Greystone and ensuring that involuntarily committed patients' constitutional rights are not violated." (Id. ¶ 102.) Plaintiff alleges that Monroe and the otherunnamed defendants are responsible for training employees, yet failed to do so. (Id. ¶ 103-115.) Further, Plaintiff alleges that training staff would have prevented Plaintiff suffering injury from the physical attacks, and ensured that Plaintiff would have received at least some medical care. (Id. ¶¶ 109-113.)

On August 14, 2009, Plaintiff filed a complaint pro se alleging violations of her Fourteenth Amendment rights and seeking damages from the individual Defendants pursuant to 42 U.S.C. § 1983. (See generally Compl.) On February 9, 2010, the State filed a motion to dismiss the complaint in lieu of an answer on behalf of Defendants Whitehead, Ajebe, Richemond and Hughes-Akinsanya. By Letter Order dated March 17, 2010, Plaintiff's application for assignment of pro bono counsel was granted. (Mar. 17, 2010 Letter Order 2.) By Order dated August 9, 2010, this Court denied Defendants' motion to dismiss and directed Plaintiff to file an amended complaint no later than September 30, 2010. (Aug. 9, 2010 Order.)

On September 28, 2010, Plaintiff, through her pro bono counsel, filed a timely amended complaint. On January 19, 2011, the State filed a motion to dismiss the amended complaint in lieu of an answer on behalf of Defendants Whitehead, Ajebe, Richemond, Hughes-Akinsanya, Monroe and Dr. Schuchman.² As permitted by the Amended Scheduling Order dated March 7, 2011, Plaintiff filed a timely Second Amended Complaint on April 22, 2011 ("Second Amended Complaint").

The Second Amended Complaint contains three counts under 42 U.S.C. § 1983 against Whitehead, Ajebe, Richemond, Hughes-Akinsanya and other unnamed defendants for violations of Plaintiff's Fourteenth Amendment rights: (1) to due process (Count One); (2) to receivemedical care (Count Two); and (3) to equal protection (Count Three). Plaintiff also asserts a claim under 42 U.S.C. § 1983 against Dr. Schuchman and other unnamed defendants for violation of her Fourteenth Amendment right to equal protection (Count Four) and against Monroe for violation of her Fourteenth Amendment right to due process (Count Five).³ Plaintiff brings two additional counts generally against all Defendants. The first of these (Count Six) is a claim for intentional infliction of emotional distress and the second (Count Seven) is for negligent infliction of emotional distress. On June 20, 2011, the State filed the instant Motion on behalf of Defendants. On July 29, 2011, Plaintiff filed opposition to the Motion.

LEGAL STANDARD

The adequacy of pleadings is governed by Federal Rule of Civil Procedure 8(a)(2), which requires that a complaint allege "a short and plain statement of the claim showing that the pleader is entitled to relief." This Rule "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted) ("Rule 8(a)(2) still requires a 'showing' rather than a blanket assertion, of an entitlement to relief." Bell Atl. Corp. at 1965 n. 3); see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).

In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must "'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.'" Phillips, 515 F.3d at 231 (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555). As the Supreme Court has explained:

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." 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. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"

Id. at 1949 (citations omitted) (quoting Twombly, 550 U.S. at 556-57, 570). Determining whether allegations in a complaint are plausible is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at...