Ebert v. Hargreaves et al

Filing 15

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Plaintiff's Complaint (filing no. 1 ) is dismissed without prejudice in accordance with 28 U.S.C. § 1915(e)(2). The clerk's office is directed to place the "28USC1915(g)_STR" flag on this matter. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ARTHUR EBERT,
Plaintiff,
v.
RICK HARGREAVES, et al.,
Defendants.

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4:11CV3139

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint on August 19, 2011. (Filing No. 1.) Plaintiff was
given leave to proceed in forma pauperis and ordered to pay an initial partial filing
fee. (Filing No. 6.) After requesting and receiving two extensions of time, Plaintiff
paid the initial partial filing fee on January 20, 2012. The court now conducts an
initial review of the Complaint to determine whether summary dismissal is appropriate
under 28 U.S.C. §§ 1915(e) and 1915A.
I.

SUMMARY OF COMPLAINT
Plaintiff filed his Complaint against 11 State of Nebraska employees. (Filing

No. 1 at CM/ECF p. 2.) He does not set forth whether Defendants are sued in their
official or individual capacities. Plaintiff is incarcerated at the Lincoln Correctional
Center (“LCC”). (Id. at CM/ECF p. 1; see also Docket Sheet.)
Condensed and summarized, Plaintiff alleges that, beginning on December 20,
2010, he began filing a series of interview request and grievance forms in which he
complained about back pain and also LCC officials’ failure to treat his back pain. (Id.
at CM/ECF pp. 6-14.) Despite filing a request for medical assistance on December
20, Plaintiff was not seen by medical staff until February 7, 2011. (Id. at CM/ECF pp.
6-7.) Between February 7, 2011, and July 2011, staff treated Plaintiff by prescribing
Naproxin (id. at CM/ECF p. 7), taking X-ray examinations of Plaintiff’s back (id. at
CM/ECF p. 10), prescribing Meloxicam (id. at CM/ECF p. 11), prescribing exercises

(id. at CM/ECF p. 12), placing Plaintiff on “sick call” (id. at CM/ECF p. 12), and
prescribing ibuprofen (id. at CM/ECF p. 12). On July 4, 2011, Defendant Dr. Douglas
Moren informed Plaintiff that the results of his X-ray examination were “normal” and
that he was being appropriately treated. (Id. at CM/ECF pp. 13, 39.)
Plaintiff complains that his back pain would never have been treated if he had
not filed grievance forms. (Id. at CM/ECF p. 7.) Plaintiff also complains that
Defendant Dr. Christina Ferguson (“Ferguson”) spoke about Plaintiff’s medical
condition in front of other inmates and non-medical staff, thereby violating Plaintiff’s
“constitutional right to medical privacy.” (Id. at CM/ECF p. 11.)

Plaintiff seeks

“proper medical care” for his back, and money damages. (Id. at CM/ECF p. 16.)
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review prisoner and in forma pauperis complaints

seeking relief against a governmental entity or an officer or employee of a
governmental entity to determine whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e) and 1915A. The court must dismiss a complaint or any portion
thereof that states a frivolous or malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A.
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (“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.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient to
state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However,
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a pro se plaintiff’s allegations must be construed liberally. Burke v. North Dakota
Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).
III.

DISCUSSION OF CLAIMS
A.

Sovereign Immunity

The Eleventh Amendment bars claims for damages by private parties against
a state, state instrumentalities, and an employee of a state sued in the employee’s
official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th
Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir.
1995). Any award of retroactive monetary relief payable by the state, including for
back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of
immunity by the state or an override of immunity by Congress. See, e.g., Dover
Elevator Co., 64 F.3d at 444; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981).
Here, Plaintiff did not allege whether Defendants are sued in their official or
individual capacities. Where a plaintiff fails to “expressly and unambiguously” state
that a public official is sued in his or her individual capacity, the court “assume[s] that
the defendant is sued only in his or her official capacity.” See Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). As set forth above, the Eleventh
Amendment bars claims for damages by private parties against employees of a state
sued in their official capacities. Consequently, Plaintiff’s monetary damages claims
against Defendants are barred by the Eleventh Amendment.
B.

Eighth Amendment Medical Claim

The court liberally construes Plaintiff’s Complaint to allege an Eighth
Amendment claim relating to denial of medical treatment.

A prisoner-plaintiff

seeking relief for claims relating to his medical care must allege that a defendantprison official was deliberately indifferent to the plaintiff’s serious medical needs.
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Estelle v. Gamble, 429 U.S. 97, 105 (1976); Coleman v. Rahija, 114 F.3d 778, 784
(8th Cir. 1997)). Further, a plaintiff must allege that he had objectively serious
medical needs, and that officials actually knew of but deliberately disregarded those
needs. Hartsfield v. Colburn, 491 F.3d 394, 397 (8th Cir. 2007). [S]ociety does not
expect that prisoners will have unqualified access to health care.”

Hudson v.

McMillian, 503 U.S. 1, 9 (1992). Therefore, “deliberate indifference to medical
needs amounts to an Eighth Amendment violation only if those needs are ‘serious.’”
Id. (citing Estelle, 429 U.S. at 103-04).
Here, Plaintiff began complaining to prison staff about back pain on December
20, 2010. Beginning February 7, 2011, staff addressed Plaintiff’s complaints about
back pain by prescribing Naproxin (id. at CM/ECF p. 7), taking X-ray examinations
of Plaintiff’s back (id. at CM/ECF p. 10), prescribing Meloxicam (id. at CM/ECF p.
11), prescribing exercises (id. at CM/ECF p. 12), placing Plaintiff on “sick call” (id.
at CM/ECF p. 12), and prescribing ibuprofen (id. at CM/ECF p. 12). Thus, even if
Plaintiff’s back pain is a serious medical need, it is clear from Plaintiff’s Complaint
that Defendants are not disregarding his need. In light of this, Plaintiff has failed to
state an Eighth Amendment medical claim upon which relief may be granted.
C.

Plaintiff’s Claims Against Ferguson

The court liberally construes Plaintiff’s Complaint to allege that Ferguson
violated Plaintiff’s constitutional privacy rights when she spoke about his medical
condition in front of other inmates. The Second and Third Circuits have both held that
prisoners have a limited right to privacy in their medical information. See Doe v.
Delie, 257 F.3d 309, 315-16 (3d Cir. 2001); Powell v. Schriver, 175 F.3d 107, 112 (2d
Cir. 1999). The Eighth Circuit has yet to decide whether prisoners have a privacy
right to their medical information. But even assuming that they enjoy such a right,
Plaintiff has failed to plead facts showing he is entitled to relief on the claim. Where
courts have recognized a right to medical privacy in the prison context, it has been
when the medical information relates to something intensely personal, such as HIV4

positive status or transsexual status.

Wells v. Pinion, No. 07-6844, 2008 WL

2185329, at *7 (E.D. La. May 20, 2008) (citing Powell, 175 F.3d at 111-12). Courts
have held that prisoners do not have a privacy interest in other medical conditions
that, “even though potentially embarrassing, are not of the ‘excruciatingly private and
intimate nature’ of HIV and transsexualism.” Id. (citing Rodriguez v. Ames, 287
F.Supp.2d 213, 220 (W.D.N.Y. 2003) (prisoner had no privacy interest in diagnosis
of proctitis and internal hemorrhoids); Webb v. Goldstein, 117 F.Supp.2d 289, 298
(S.D.N.Y. 2000) (prisoner had no right to privacy in information concerning treatment
for various genital conditions).
In the instant case, Plaintiff has no extremely sensitive medical condition, such
as HIV, that would entitle him to the very limited constitutional protection recognized
in other circuits. The allegations are that Ferguson “spoke about” Plaintiff’s back pain
in front of other inmates. Plaintiff’s claims that Ferguson spoke about Plaintiff’s back
pain do not state a constitutional violation and will be dismissed.
IT IS THEREFORE ORDERED that: Plaintiff’s Complaint (filing no. 1) is
dismissed without prejudice in accordance with 28 U.S.C. § 1915(e)(2). The clerk’s
office is directed to place the “28USC1915(g)_STR” flag on this matter. A separate
judgment will be entered in accordance with this Memorandum and Order.
DATED this 28 th day of February, 2012.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or W eb sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their W eb sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

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