Fontanez v. United States

24 F.Supp.3d 408

Rafael FONTANEZ, Plaintiff

v.UNITED STATES of America and Federal Bureau of Prisons, Defendants.

Civil No. 11–2573 RMB/AMD.

United States District Court, D. New Jersey.

Signed May 30, 2014.

Rafael Fontanez, Ludlow, MA, pro se.

Pamela R. Perron, Office of the U.S. Attorney, Newark, NJ, for Defendants.

MEMORANDUM OPINION AND ORDER

ANN MARIE DONIO, United States Magistrate Judge.

Presently before the Court is the motion of pro se Plaintiff, Rafael Fontanez, for an extension of time within which to submit an affidavit of merit and for an order finding an affidavit of merit to be unnecessary in this action. (See Notice of Motion [Doc. No. 25], 1). The Court considers whether the nature of Plaintiff's claims require Plaintiff to file an affidavit of merit, and if so, whether Plaintiff has demonstrated circumstances sufficient to permit the filing of an affidavit of merit beyond the statutorily-prescribed time period. For the reasons that follow, the Court grants Plaintiff's motion for an extension of time to file an affidavit of merit.

In this action, pro se Plaintiff, formerly an inmate at FCI Fort Dix,¹ generally alleges that, during a prison softball game on July 12, 2009, he sustained an injury, which caused “instantaneous” swelling, “intense pain [,] and limited Plaintiff's ability to “move” his arm.” (Second Amended Complaint [Doc. No. 9], ¶ 19.) Plaintiff alleges that the Health Services Unit at FCI Fort Dix provided medical care to Plaintiff, but originally diagnosed and treated the injury as a fracture, rather than a broken bone (id. at ¶ 37), and denied Plaintiff's initial requests to be seen by an orthopedic specialist. (Id. at ¶ 39.) Notwithstanding the original diagnosis, Plaintiff alleges that he suffered from a broken and displaced ulnar, which ultimately required corrective surgeries, and has inhibited the “normal use” and “range of motion” of Plaintiff's right arm and wrist. (Id. at ¶¶ 43–49, 89.) Plaintiff generally asserts that the Health Services Unit, and its various physicians, mid-level practitioners, and registered nurses, provided medically negligent treatment, and seeks monetary damages. (Id. at ¶¶ 86–92.)

On May 5, 2011, Plaintiff submitted the initial complaint in this action, together with an application to proceed in forma pauperis. (See Complaint Received [Doc. No. 1].) On July 12, 2011, 2011 WL 2745809, the District Court granted Plaintiff's application to proceed in forma pauperis, but dismissed Plaintiff's claims with prejudice, instead granting Plaintiff the right to file an amended complaint with respect to certain claims asserted against Abigail Lopez, M.D., Vincent Elias, and Christine Burton. (See Order [Doc. No. 3], July 12, 2011, 3.) In accordance with the District Court's Order, Plaintiff filed an amended complaint on April 9, 2012, reasserting prior allegations, in part, but also setting forth new substantive assertions. (See generally Amended Complaint [Doc. No. 9].) By Order dated November 20, 2012, the District Court dismissed Plaintiff's claims against certain individuals, but permitted Plaintiff's claims under the Federal Tort Claims Act to proceed and added the United States of America as a party Defendant. (See Order [Doc. No. 11], Nov. 20, 2012, 2.) Defendants then answered Plaintiff's amended complaint on June 11, 2013. (See Answer to Amended Complaint [Doc. No. 19].)

On July 12, 2013, Plaintiff filed his first motion for an extension of time to file an affidavit of merit. (See Motion for Extension of Time to File an Affidavit of Merit [Doc. No. 21].) At that time, the sixty-day period within which to obtain an affidavit of merit would have expired on August 9, 2013. (Id. at ¶ 4.) Defendants did not object to the motion and the Court accordingly granted the motion, extending the time within which to file an affidavit to October 9, 2013, the statutory limit under New Jersey's affidavit of merit statute. (See Order [Doc. No. 24], July 22, 2013, 1.) Plaintiff filed the pending motion on October 24, 2013, seeking a determination that the nature of the allegations and persons involved exempt Plaintiff from the affidavit of merit requirement, and alternatively, requesting an extension of time to November 8, 2013 to file the requisite affidavit. (See Notice of Motion [Doc. No. 25], 1; see also Plaintiff's Affirmation in Support of Motion for Extension of Time, Out of Time, and an Order Holding that an Affidavit of Merit is Unnecessary [Doc. No. 25].) Defendants have opposed any extension of time, and cross-moved for summary judgment on the basis of Plaintiff's failure to provide a timely affidavit of merit. (See Memorandum of Law in Support of the United States of America's Opposition to Plaintiff's Second Motion for Extension of Time to File an Affidavit of Merit and Defendant's Cross–Motion for Summary Judgment Dismissal (hereinafter, Defs.' Opp'n) [Doc. No. 29], 1–2.) On November 22, 2013, the District Court denied Defendants' cross-motion without prejudice, pending resolution of the present motion. (See Text Order [Doc. No. 35].)

As set forth supra, the District Court permitted Plaintiff's claims under the Federal Torts Claim Act (hereinafter, the “FTCA”) to proceed passed sua sponte dismissal. (See generally Order [Doc. No. 11], Nov. 20, 2012.) The FTCA generally “subjects the United States to tort liability for negligence [.]” Reo v. U.S. Postal Serv., 98 F.3d 73, 75 (3d Cir.1996) (citing 28 U.S.C. §§ 1346(b), 2674 ). Specifically, under the FTCA, the United States may be liable for injuries caused by the “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). However, state law governs claims under the FTCA. See Staub v. U.S., No. 08–2061, 2010 WL 743926, at *2 (D.N.J. Mar. 3, 2010) (citing Reo, 98 F.3d at 75 ) (noting the applicability of state law). Because Plaintiff alleges injuries which occurred in New Jersey, New Jersey tort law, including the affidavit of merit statute (hereinafter, the “affidavit of merit statute”), N.J.S.A. 2A:53A–26 et seq., applies.

“In any action for damages for personal injuries” resulting “from an alleged act of malpractice or negligence by a licensed person in his profession or occupation,” the New Jersey affidavit of merit statute requires the plaintiff to provide “an affidavit of an appropriate licensed person” concerning whether the disputed treatment “fell [below] acceptable professional or occupational standards or treatment practices.” N.J.S.A. 2A:53A–27. The affidavit of merit statute therefore requires “plaintiffs to make a threshold showing” of merit, Vitale v. Carrier Clinic, Incorporated, 409 Fed.Appx. 532, 533 (3d Cir.2010) (citation omitted), in order “ ‘to dispose of meritless malpractice claims early in the litigation’ ” and “ ‘to allow meritorious claims to move forward unhindered.’ ” Snyder v. Pascack Valley Hosp., 303 F.3d 271, 274 (3d Cir.2002) (quoting Burns v. Belafsky, 166 N.J. 466, 766 A.2d 1095, 1099 (2001) ).

Plaintiff asserts that an affidavit of merit need not be filed because Plaintiff's allegations do not concern a “licensed physician.” (Plaintiff's Affirmation in Support of Motion for Extension of Time, Out of Time, and an Order holding that an Affidavit of Merit is Unnecessary (hereinafter, “Pl.'s Br.”) [Doc. No. 25], ¶¶ 22–24.) Plaintiff's allegations concern treatment provided by the Health Services Unit (hereinafter, “HSU”) at FCI Fort Dix, and primarily relate to the alleged malpractice of HSU employees, Christine Burton, a registered nurse, and Vincent Elias, a mid-level practitioner or physician's assistant. (Pl.'s Br. [Doc. No. 25], ¶¶ 22–23; see also Defs.' Opp'n [Doc. No. 29], 7–8.) The affidavit of merit statute, by its very terms, applies only to certain claims against “licensed person[s] in his [or her] profession or occupation[.]” N.J.S.A. 2A:53A–27. However, as is evident from the statutory text, and delineated in N.J.S.A. 2A:53A–26, the definition of “licensed persons” is not strictly confined to licensed physicians, but instead, expressly encapsulates attorneys, physicians, registered nurses, and a “health care facility[.]” N.J.S.A. 2A:53A–26. As noted by Defendants (Defs.' Opp'n [Doc. No. 29], 8), FCI Fort Dix's HSU constitutes a “ ‘licensed person’ ” and “ ‘health care facility.’ ” McLoyd v. U.S., No. 04–605, 2006 WL 2135837, at *3 (D.N.J. July 27, 2006) (finding that “the Health Services Unit at FCI–Fairton falls under the statutory definition of a ‘licensed person’ and ‘health care facility’ ”). Consequently, Plaintiff's complaint concerns alleged acts of negligence by “licensed persons[,]” and claims to which the affidavit of merit statute apply. See N.J.S.A. 2A:53A–27.

The affidavit of merit statute requires that the affidavit be filed within sixty days of the answer, but permits an extension of time “not to exceed [sixty] days” for “good cause[.]” Id. Failure to file a timely affidavit of merit generally “requires dismissal of the action with prejudice.” Nuveen Mun. Trust ex rel. Nuveen High Yield Mun. Bond Fund v. Withum–Smith Brown, P.C., 692 F.3d 283, 305 (3d Cir.2012) ; see also N.J.S.A. 2A:53A–29 (setting forth the consequence for a plaintiff's failure to provide an affidavit of merit). However, “four limited exceptions[,]” where applicable, excuse a plaintiff's failure to comply with the affidavit of merit statute. Nuveen, 692 F.3d at 305. The limited exceptions are: “(i) a statutory exception regarding lack of information; (ii) a ‘common knowledge’ exception; (iii)” an exception predicated upon “substantial compliance with the affidavit-of-merit requirement;” and (iv) “ ‘extraordinary circumstances' that warrant equitable relief.” Id. (citations omitted).

As set forth supra, Plaintiff filed the pending motion on October 24, 2013, after the expiration of the October 9, 2013 statutory deadline to file an affidavit of merit. (See Notice of Motion [Doc. No. 25].)...