Decoteau v. Houston et al

Filing 19

MEMORANDUM AND ORDER- Plaintiff's claims for monetary relief against Defendants in their official capacities are dismissed because they are barred by the Eleventh Amendment. Plaintiff's claims for monetary and non-monetary relief against D efendants in their individual capacities may proceed to service of process. In addition, Plaintiffs claims for non-monetary relief against Defendants in their official capacities may proceed to service of process. The clerk of the court is directe d to update the court's records to reflect the addition of Khrystyna Dority as a defendant in this case. Plaintiff's Motion to Amend Complaint (Filing No. 18 ) is granted. This action may proceed to service of process as to Plaintiffs c laims against Robert Houston, Michael Kenney, Diane Sabaka Rhine, Christine Ferguson, Charles Coren, Randy Kohl, and Khrystyna Dority in their individual and official capacities. If requested to do so in this matter, the United States Marshal will serve all process in this case without prepayment of fees from Plaintiff. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 10/6/2015: check for completion of service). Ordered by Judge John M. Gerrard. (Copy mailed to pro se party with complaint, amended complaint, 14 summons forms and 14 USM 285 forms)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHRISTOPHER L. DECOTEAU,

)
)
Plaintiff,
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)
V.
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ROBERT HOUSTON, MICHAEL
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KENNEY, Director, RANDY KOHL, )
Medical Director, DIANE SABAKA )
RHINE, Warden, CHRISTINA
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FERGUSON, Doctor, and CHARLES )
COREN, Eye Clinic,
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Defendants.
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4:14CV3165

MEMORANDUM
AND ORDER

Plaintiff filed his initial Complaint in this matter on August 13, 2014. (Filing
No. 1). The court subsequently granted his Motion for Leave to Proceed in Forma
Pauperis. (Filing No. 7). Plaintiff filed an Amended Complaint on May 18, 2015, in
which he sought to add one named and one unnamed defendant to this action. (Filing
No. 18). The court considers Plaintiff’s Amended Complaint as supplemental to his
Complaint. See NECivR 15.1(b) (stating the court may consider an amended pleading
as supplemental to the original pleading in pro se cases).
The court now conducts an initial review of the Complaint and Amended
Complaint to determine whether summary dismissal is appropriate under 28 U.S.C.
§§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff brings this action pursuant 42 U.S.C. § 1983 for violations of the
Eighth and Fourteenth Amendments. Specifically, he alleges the following defendants
exhibited deliberate indifference to his serious medical condition: Robert Houston,

prison director; Michael Kenney, prison director; Diane Sabaka Rhine, warden;
Christine Ferguson, prison doctor; Charles Coren, prison eye doctor; Randy Kohl,
prison medical director; and Khrystyna Dority, secretary at the prison eye clinic.
(Filing No. 1 at CM/ECF p. 2; Filing No. 18 at CM/ECF p. 2.) Liberally construed,
Plaintiff also raises state-law claims for medical negligence and intentional infliction
of emotional distress.
Plaintiff is currently incarcerated at the Nebraska State Penitentiary (“NSP”).
Plaintiff apparently began having trouble with his eyesight on or before October 9,
2011. On March 14, 2012, Plaintiff filed an Inmate Interview Request in which he
asserted Dr. Greg Sutton diagnosed him with Keratoconus – “[a] conic protrusion of
the cornea caused by thinning of the stroma.” Stedmans Medical Dictionary 468240
(26th ed. 1995).
For parts of the next two years, Plaintiff repeatedly insisted he was not being
fitted for the specialized contact lenses recommended for him, nor was he allowed to
see a specialist despite the fact that his condition was causing his eyesight to
deteriorate. At one point, he was provided a pair of ill-suited and improperly fitted
contact lenses, which adhered to his eye requiring a trip to the emergency room. The
result was a corneal abrasion to his right eye. He further asserts various medical
professionals at the NSP did not keep scheduled appointments with him at the medical
or eye clinics within the NSP. Plaintiff states he exhausted his remedies at the NSP
by filing formal and informal grievances, contacting the state ombudsman, and having
his mother contact prison officials on his behalf. Based on the various Defendants’
refusals to properly diagnose, treat, refer him to a specialist, and order the proper
contact lenses, Plaintiff alleges his condition deteriorated to the point where his vision
is significantly impaired and can only be cured through a corneal implant.

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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 of
it 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(b).
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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
Liberally construed, Plaintiff here alleges federal constitutional claims. To state
a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected
by the United States Constitution or created by federal statute and also must show that
the alleged deprivation was caused by conduct of a person acting under color of state
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law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).
III. DISCUSSION
Plaintiff alleges the named defendants subjected him to cruel and unusual
punishment in violation of the Eighth Amendment because they were deliberately
indifferent to his medical needs. To show deliberate indifference, the plaintiff must
demonstrate that he suffered objectively serious medical needs, and that officials
actually knew of but deliberately disregarded those needs. Johnson v. Hamilton, 452
F.3d 967, 972-73 (8th Cir. 2006). Society does not expect that prisoners will have
unqualified access to health care. Therefore, deliberate indifference to medical needs
amounts to an Eighth Amendment violation only if those needs are serious. Hudson
v. McMillian, 503 U.S. 1, 9 (1992) (citing Estelle v. Gamble, 429 U.S. 97, 103-104
(1976)). “Deliberate indifference is equivalent to criminal-law recklessness, which
is ‘more blameworthy than negligence,’ yet less blameworthy than purposefully
causing or knowingly bringing about a substantial risk of serious harm to the inmate.”
Schaub v. VonWald, 638 F.3d 905, 914-15 (8th Cir. 2011) (quoting Farmer v.
Brennan, 511 U.S. 825, 835, 839-40 (1970)).
A.

Medical Personnel

Plaintiff asserts prison medical personnel—Christine Ferguson and Charles
Coren—were deliberately indifferent to his eye condition, causing him pain and
significant loss of his vision. At this early stage in the proceedings, the court finds
Plaintiff has adequately pled an Eighth Amendment claim against Ferguson and
Coren.

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B.

Non-Medical Personnel

Plaintiff named several supervisors and administrators in his Complaint and
Amended Complaint. These include Warden Diane Sabaka Rhine, Director Robert
Houston, Medical Director Randy Kohl, and Director Michael Kenney. Plaintiff also
seeks to add Khrystyna Dority as a defendant. Dority is the secretary at the prison eye
clinic. Plaintiff alleges she deliberately interfered with his course of treatment and
denied or delayed his access to medical care.
“It is well settled that § 1983 does not impose respondeat superior liability.”
Hughes v. Stottlemyre, 454 F.3d 791, 798 (8th Cir. 2006). To state a § 1983 claim, the
plaintiff must allege that the defendant was personally involved in or had direct
responsibility for incidents that resulted in injury. Martin v. Sargent, 780 F.2d 1334,
1338 (8th Cir. 1985). “Supervisors can, however, ‘incur liability . . . for their personal
involvement in a constitutional violation, or when corrective inaction amounts to
deliberate indifference to or tacit authorization of the violative practices.’” Langford
v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (internal quotations omitted).
Here, Plaintiff alleges each of the supervisory personnel had direct knowledge
of his complaints and medical condition through contact with Plaintiff and his mother,
but did nothing to assist him or ensure he received proper care. Likewise he alleges
the secretary at the prison medical clinic intentionally and deliberately impeded his
access to care. Plaintiff has alleged sufficient facts at this stage in the proceedings to
state an Eighth Amendment claim against Sabaka Rhine, Houston, Kohl, Kenney, and
Dority.
C.

Official Capacity Claims

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
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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., id.; Nevels
v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981). Sovereign immunity does not bar
damages claims against state officials acting in their personal capacities, nor does it
bar claims brought pursuant to 42 U.S.C. §1983 that seek equitable relief from state
employee defendants acting in their official capacity.
In part, Plaintiff seeks monetary relief from state employees acting in their
official capacities. The court will dismiss such claims because they are barred by the
Eleventh Amendment.
IV. STATE-LAW CLAIMS
Liberally construed, Plaintiff also raises state-law claims against Defendants for
medical negligence and intentional infliction of emotional distress. At this time, the
court makes no finding with respect to its jurisdiction over these claims or whether
they state a claim upon which relief may be granted. In order to ensure a just and fair
resolution of this matter, Plaintiff’s state-law claims will be allowed to proceed to
service of process along with the Eighth Amendment claims detailed above.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s claims for monetary relief against Defendants in their official
capacities are dismissed because they are barred by the Eleventh Amendment.
Plaintiff’s claims for monetary and non-monetary relief against Defendants in their
individual capacities may proceed to service of process. In addition, Plaintiff’s claims
for non-monetary relief against Defendants in their official capacities may proceed to
service of process.
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2.
The clerk of the court is directed to update the court’s records to reflect
the addition of Khrystyna Dority as a defendant in this case. (See Filing No. 18 at
CM/ECF p. 2.)
3.
Plaintiff’s Motion to Amend Complaint (Filing No. 18) is granted. The
clerk of the court is directed to update the docket text at Filing Number 18 to reflect
that the court considers Filing Number 18 as supplemental to the original Complaint
(Filing No. 1).
4.
This action may proceed to service of process as to Plaintiff’s claims
against Robert Houston, Michael Kenney, Diane Sabaka Rhine, Christine Ferguson,
Charles Coren, Randy Kohl, and Khrystyna Dority in their individual and official
capacities.
5.
The clerk of the court is directed to send to Plaintiff a copy of the
Complaint and Amended Complaint, a copy of this Memorandum and Order, and 14
summons forms and 14 USM 285 Forms for service on Houston, Kenney, Sabaka
Rhine, Ferguson, Coren, Kohl, and Dority in their individual and official capacities.
(See attached Notice Regarding Service.)
Federal Rule of Civil Procedure 4(m) requires service of the complaint on a
defendant within 120 days of filing the complaint. However, Plaintiff is granted, on
the court’s own motion, an extension of time until 120 days from the date of this order
to complete service of process.
6.
If requested to do so in this matter, the United States Marshal will serve
all process in this case without prepayment of fees from Plaintiff. In making such a
request, Plaintiff must complete the USM 285 forms and submit them to the clerk of
the court, together with the completed summons forms. Without these documents, the
United States Marshal will not serve process. Upon receipt of the completed forms,
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the clerk of the court will sign the summons forms and forward them to the Marshal
for service on Defendants, together with copies of the Complaint and Amended
Complaint. In the event Plaintiff asks the United States Marshal to serve process, the
clerk of the court will make copies of the Complaint and Amended Complaint for
service on Defendants.
7.
The clerk of the court is directed to set the following pro se case
management deadline: October 6, 2015: check for completion of service.
DATED this 8th day of June, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

*This opinion may contain hyperlinks to other documents or Web 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 Web 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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Notice Regarding Federal Rule of Civil Procedure 4
Federal Rule of Civil Procedure 4 requires that a defendant be served with the
complaint and a summons. This is to make sure that the party you are suing has notice
of the lawsuit. Federal Rule of Civil Procedure 4(e) governs service of process on an
individual (i.e., your individual capacity claims). Federal Rule of Civil Procedure 4(j)
governs service of process on a state (i.e., your official capacity claims).
In this case, Rule 4(e) and (j) mean copies of the summons and complaint must be
served on: (1) Defendants individually; and also (2) the Nebraska Attorney General’s
Office or the chief executive officer for the State of Nebraska.
You may ask the United States Marshal to serve process, as described in the court’s
order, because you are proceeding in forma pauperis.