Mitchell v. Kohl et al

Filing 21

MEMORANDUM AND ORDER that on the court's own motion, Mitchell will have 30 days in which to file an amended complaint that states a claim upon which relief may be granted against the defendants. Failure to file an amended complaint will result i n the court dismissing this case without further notice to Mitchell. Mitchell's Motion to Appoint Counsel (Filing No. 3 ) is denied without prejudice to reassertion. The clerk of the court is directed to set the following pro se case management deadline: March 4, 2016: check for amended complaint. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EARL MITCHELL JR.,

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Plaintiff,
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v.
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RANDY KOHL, SHAWN LUEBBE, )
CHRISTINA FERGUSON, DAN
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DANAHER, and GARY HUSTAD,
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Defendants.
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4:15CV3087

MEMORANDUM
AND ORDER

This matter is before the court on initial review of Plaintiff Earl Mitchell, Jr.’s,
Amended Complaint (Filing No. 18). For the reasons discussed below, the court will
dismiss Mitchell’s claims without prejudice to reassertion in state court.
I. SUMMARY OF COMPLAINT
Mitchell is incarcerated at the Nebraska State Prison (“NSP”) in Lincoln,
Nebraska. His allegations are based on incidents that occurred in 2013 while he was
incarcerated at the NSP.
Mitchell alleged that, in May and July of 2013, prison medical
staff—Defendants Dan Danaher and Shawn Luebbe—diagnosed him with the
beginning stages of carpal tunnel syndrome. They prescribed medication, exercises,
and hand splints. (Filing No. 1 at CM/ECF p. 2.)
Mitchell’s condition deteriorated, and he continued to complain to medical
staff. On July 31, 2013, medical staff evaluated Mitchell in response to his complaints
of body spasms, hand twitching, and weakness. Mitchell was informed that he would
be scheduled to see an outside specialist so that he could undergo testing for carpal

tunnel syndrome. In addition, Mitchell underwent an x-ray, “which revealed nothing.”
(Filing No. 1 at CM/ECF p. 3.)
On August 13, 2013, Mitchell was tested for carpal tunnel syndrome, and the
condition was “ruled out” as the cause of Mitchell’s symptoms. (Filing No. 1 at
CM/ECF p. 4.) On August 16, 2013, Defendant Randy Kohl, a prison medical
director, approved Defendant Christina Ferguson’s request that Mitchell undergo an
MRI. (See Filing No. 1 at CM/ECF p. 41.) Mitchell complains that he did not
undergo the MRI until nearly two months later, on October 4, 2013. This MRI
revealed that Mitchell needed emergency surgery because he was “inches from
paral[y]sis” due to a bone “leaning on [his] spinal cord.” Mitchell underwent
emergency surgery on October 5, 2013. (Filing No. 1 at CM/ECF p. 4.)
To date, Mitchell suffers from “permanent nerve damage, permanent impaired
motor skills, [and] uncontrolable [sic] spasms in [his] upper and lower extremities.”
(Filing No. 1 at CM/ECF p. 5.)
Mitchell argues his medical providers at the prison should have known he was
suffering from something more severe than carpal tunnel syndrome, and they should
have scheduled him for an MRI sooner. (Filing No. 18 at CM/ECF p. 7.) For relief,
Mitchell seeks damages in the amount of $1,000,000.00.
II. 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

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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
law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).
III. DISCUSSION
The court must consider whether Mitchell’s Amended Complaint states a cause
of action under 42 U.S.C. § 1983. He filed his Amended Complaint using a form
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designated for use by prisoners filing complaints under 42 U.S.C. § 1983, but also set
forth that this is a medical malpractice action. (See Filing No. 1 at CM/ECF p. 6.)
Medical malpractice does not become a constitutional violation merely because
the victim is a prisoner. Rather, in order to state a cognizable claim, a prisoner must
allege acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). 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 give rise
to the level of a constitutional violation. Deliberate indifference is akin to criminal
recklessness, which demands more than negligent misconduct. Popoalii v.
Correctional Medical Services, 512 F.3d 488, 499 (8th Cir. 2008).
Upon careful review of Mitchell’s allegations, the court finds Mitchell has not
alleged any of the named defendants were deliberately indifferent to serious medical
needs. Rather, he alleged no more than mis-diagnosis or malpractice by the named
defendants. His allegations reflect that he was seen and treated repeatedly by medical
providers in response to his complaints. These medical providers treated him with
medication, exercises, splints, x-rays, an MRI, and surgery. Mitchell disagrees with
the course of treatment and he takes issue with the amount of time it took to schedule
his MRI, but he offered no facts to suggest any of the defendants were deliberately
indifferent to his medical needs.
On the court’s own motion, the court will give Mitchell 30 days in which to file
a second amended complaint that states a claim upon which relief may be granted
against the defendants.

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IV. MOTION TO APPOINT COUNSEL
Mitchell filed a Motion to Appoint Counsel (Filing No. 3). The court cannot
routinely appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444, 447 (8th Cir.
1996), the Eighth Circuit Court of Appeals explained that “[i]ndigent civil litigants do
not have a constitutional or statutory right to appointed counsel. The trial court has
broad discretion to decide whether both the plaintiff and the court will benefit from
the appointment of counsel[.]” Id. (internal citation and quotation marks omitted).
No such benefit is apparent here at this time. Thus, the request for the appointment
of counsel will be denied without prejudice to reassertion.
IT IS THEREFORE ORDERED that:
1.
On the court’s own motion, Mitchell will have 30 days in which to file
an amended complaint that states a claim upon which relief may be granted against
the defendants. Failure to file an amended complaint will result in the court
dismissing this case without further notice to Mitchell.
2.
Mitchell’s Motion to Appoint Counsel (Filing No. 3) is denied without
prejudice to reassertion.
3.
The clerk of the court is directed to set the following pro se case
management deadline: March 4, 2016: check for amended complaint.
DATED this 3rd day of February, 2016.
BY THE COURT:
s/ John M. Gerrard
United States District Judge
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