Prowell v. Anoka, County of, et al.

Filing 117

ORDER OVERRULING Prowell's objections 116 and ADOPTING the Report and Recommendation of the Magistrate Judge dated May 24, 2011 112 . Accordingly, IT IS HEREBY ORDERED that: 1. Defendants Schock, Randa, and Detlies Motion to Dismiss 62 is G RANTED. 2. Defendant Roberg's Motion to Dismiss 68 is GRANTED. 3. Defendants Loken, Zadnik, and El-Mammamys Motion to Dismiss 74 is GRANTED. 4. Plaintiff's claims against defendant P.K. are DISMISSED without prejudice. 5. Plaintiff's Motion for Appointment of a Court Appointed Medical Expert Witness [Docket No. 82] is DENIED. 6. This action is DISMISSED. (Written Opinion). Signed by Judge John R. Tunheim on August 16, 2011. (HAM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ASHAUNTI QUANTAY PROWELL,

Civil No. 09-2409 (JRT/JJK)

Plaintiff,
v.
PK, Staff; DR. ANDREW SCHOCK;
M.D. TORE DETLIE; YASER ELMAMMAMY; DANIEL C. RANDA;
JEFFREY J. ROBERG; MARTIN
ZADNIK; and LINDA LOKEN,

ORDER ADOPTING REPORT &
RECOMMENDATION OF
MAGISTRATE JUDGE
DATED MAY 24, 2011

Defendants.

Ashaunti Quantay Prowell, #10819-041, United States Penitentiary
Atwater, P.O. Box 019001, Atwater, CA 95301, pro se.
Barry G. Vermeer and Henry A. Parkhurst, GISLASON & HUNTER
LLP, 701 Xenia Avenue South, Suite 500, Minneapolis, MN 55416, for
defendants Schock, Detlie, and Randa.
Kelly Ann Putney and Rachel B. Peterson, BASSFORD REMELE, PA,
33 South Sixth Street, Suite 3800, Minneapolis, MN 55402, for defendants
El-Mammamy, Zadnik, and Loken.
Chad W. Strathman, EMERGENCY PHYSICIANS P.A., 5435 Feltl
Road, Minnetonka, MN 55343, for defendant Roberg.

Plaintiff Ashaunti Quantay Prowell, a federal prison inmate, filed suit under 42
U.S.C. § 1983 against numerous health care providers who participated in his treatment
on November 19-25, 2006, at Mercy Hospital in Anoka County, Minnesota. Prowell
alleges that defendants were deliberately indifferent to his serious medical needs while he

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was a patient at Mercy, in violation of the Eighth Amendment. Specifically, Prowell
alleges that defendants’ failure to properly diagnose and treat a back injury resulted in his
subsequent need for back surgery. On May 24, 2011, United States Magistrate Judge
Jeffrey J. Keyes issued a Report and Recommendation (“R&R”) recommending that the
Court grant motions to dismiss filed by seven defendants, dismiss without prejudice
Prowell’s claims against an eighth defendant, and deny Prowell’s Motion for
Appointment of a Court Appointed Medical Expert Witness. (Docket No. 112.) Having
conducted a de novo review of those portions of the R&R to which Prowell objects, see
28 U.S.C. § 636(b)(1)(C), D. Minn. L.R. 72.2(b), and having carefully reviewed the
submitted materials, the Court overrules Prowell’s objections and adopts the R&R in its
entirety.

ANALYSIS
To survive a motion to dismiss, a complaint must include “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.” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quotation marks and internal citations omitted).
The Court liberally construes pleadings submitted by a pro se litigant, Estelle v. Gamble,
429 U.S. 97, 106 (1976), but to avoid dismissal Prowell’s Third Amended Complaint
(Docket No. 43) still must contain sufficient allegations to support an actionable claim.
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).

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“The essential elements of a § 1983 claim are (1) that the defendant(s) acted under
color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right.” Schmidt v. City of Bella Villa, 557 F.3d 564,
571 (8th Cir. 2009).

The Magistrate Judge found that Prowell’s Third Amended

Complaint does not contain sufficient allegations to support either of these elements.
(R&R at 14-15, Docket No. 112.) Prowell has not objected to the Magistrate Judge’s
conclusion that his Third Amended Complaint contains no allegations suggesting that any
of the moving defendants1 are state actors.

The events underlying Prowell’s claim

occurred at a private hospital, where the moving defendants are presumably employed.
While “[a] private party may be deemed a state actor for purposes of section 1983
liability when he acts under cover of state law and performs a function traditionally
exclusively reserved to the state[,]” Reasonover v. St. Louis Cnty., Mo., 447 F.3d 569,
584 (8th Cir. 2006) (quotation marks omitted), Prowell has not pleaded facts which, if
proven true, would establish that any moving defendant meets this standard. On this
basis alone, the Court would be obliged to adopt the R&R and grant the defendants’
motions.
The Magistrate Judge also found, in the alternative, that even if the moving
defendants could be viewed as state actors for purposes of § 1983 liability, the Third
Amended Complaint does not contain sufficient allegations to support an Eighth

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The Magistrate Judge recommended dismissing defendant P.K., whom the Third
Amended Complaint suggests is an Anoka County Jail employee, on the ground that Prowell
furnished no evidence that P.K. was properly served. Prowell has not challenged that portion of
the R&R. Accordingly, the Court dismisses P.K. without prejudice.
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Amendment violation. Prowell’s objections focus on this aspect of the R&R. Prowell
argues that he sufficiently pleaded facts regarding the defendants’ “misfeasance, neglect,
and misdiagnosis which later lead to his having to undergo a serious surgery.” (Pl.’s Obj.
at 2, Docket No. 116.) He specifically objects to the dismissal of defendants Jeffrey
Roberg, Andrew Schock, and Martin Zadnik. The Third Amended Complaint alleges
only that Roberg performed a preliminary examination of Prowell when he entered the
emergency room, issued an initial diagnosis, recommended Prowell’s admission, and
discussed possible treatment with two other doctors. Schock, according to the Third
Amended Complaint, submitted an assessment of Prowell’s condition to a neurosurgeon
stating that “[a]t this point, [Prowell’s injury] does not appear to [present a] surgical
condition.” The Third Amended Complaint alleges that Zadnik simply wrote a status
report. The import of Prowell’s allegations is a claim of misdiagnosis.
Allegations of mere misdiagnosis and negligence, however, do not support a claim
for cruel and unusual punishment under the Eighth Amendment.

“[T]he offending

conduct must be wanton” to constitute an Eighth Amendment violation. Wilson v. Seiter,
501 U.S. 294, 302 (1991) (emphasis original). In the context of a prisoner’s medical
care, the standard is “deliberate indifference.” Estelle, 429 U.S. at 104. “A prison
official is deliberately indifferent if she knows of and disregards a serious medical need
or a substantial risk to an inmate’s health or safety.” Nelson v. Corr. Med. Servs., 583
F.3d 522, 528 (8th Cir. 2009) (quotation marks omitted). As the Eighth Circuit has made
clear,

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[m]edical malpractice alone . . . is not actionable under the Eighth
Amendment. For a claim of deliberate indifference, the prisoner must show
more than negligence, more even than gross negligence, and mere
disagreement with treatment decisions does not rise to the level of a
constitutional violation. Deliberate indifference is akin to criminal
recklessness . . . .
Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008) (emphasis added)
(internal citations and quotation marks omitted). “Negligent misdiagnosis does not
create a cognizable claim under § 1983.” McRaven v. Sanders, 577 F.3d 974, 982 (8th
Cir. 2009) (emphasis added) (citing Estelle, 429 U.S. at 106). Accepting as true the
assertions in Prowell’s Third Amended Complaint and his own characterization of his
claim, his allegations do not rise to the level of an Eighth Amendment violation. The
allegations specifically relating to Roberg, Schock, and Zadnik fall far below the
necessary threshold.
Moreover, the Court agrees with the Magistrate Judge’s unchallenged
recommendation that Prowell not be permitted leave to replead, presuming that he has
implicitly moved to do so. He has already had three chances to submit a complaint with
actionable allegations against the defendants, and his objections to the R&R do not
suggest that he has a factual basis for asserting a § 1983 claim against any moving
defendant.

Accordingly, the Court concludes that further amendment to Prowell’s

complaint would be futile. See Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 755 (8th
Cir. 2006) (“[D]enial of leave to amend may be justified when the amendment is futile.”).
In addition, Prowell does not appear to have objected to the Magistrate Judge’s

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disposition of his Motion for Appointment of a Court Appointed Medical Expert Witness,
and the Court adopts the R&R in that regard.

ORDER
Based on the foregoing and the records, files, and proceedings herein, the Court
OVERRULES Prowell’s objections [Docket No. 116] and ADOPTS the Report and
Recommendation of the Magistrate Judge dated May 24, 2011 [Docket No. 112].
Accordingly, IT IS HEREBY ORDERED that:
1.

Defendants Schock, Randa, and Detlie’s Motion to Dismiss [Docket

No. 62] is GRANTED.
2.

Defendant Roberg’s Motion to Dismiss [Docket No. 68] is GRANTED.

3.

Defendants Loken, Zadnik, and El-Mammamy’s Motion to Dismiss

[Docket No. 74] is GRANTED.
4.

Plaintiff’s claims against defendant P.K. are DISMISSED without

prejudice.
5.

Plaintiff’s Motion for Appointment of a Court Appointed Medical Expert

Witness [Docket No. 82] is DENIED.
6.

This action is DISMISSED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: August 16, 2011
at Minneapolis, Minnesota.

___________s/ John R. Tunheim_________
JOHN R. TUNHEIM
United States District Judge

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