Ditter v. Nebraska Department of Correctional Services et al

Filing 16

MEMORANDUM AND ORDER - Plaintiff's 42 U.S.C. § 1983 Eighth and Fourteenth Amendment claims for prospective injunctive relief against defendants Nebraska Department of Correctional Services, Correct Care Solutions, and defendants Scott Frake s, Randy T. Kohl, Ronald Ogden, and Lisa Mathews in their individual and official capacities may proceed to service of process. The United States Marshal shall serve all process in this case without prepayment of fees from Plaintiff. The clerk of the court is directed to file under seal any document containing the last-known personal addresses for the defendants. The clerk of the court is directed to set the following pro se case management deadline: July 13, 2017: check for completion of service of process. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID DITTER,

)
)
Plaintiff,
)
)
v.
)
)
NEBRASKA DEPARTMENT OF
)
CORRECTIONAL SERVICES,
)
SCOTT FRAKES, in his individual & )
official capacity, RANDY T. KOHL, )
MD, in his individual & official
)
capacity, CORRECT CARE
)
SOLUTIONS, RONALD OGDEN,
)
DDS, in his individual & official
)
capacity, and LISA MATHEWS, in
)
her individual & official capacity,
)
)
Defendants.
)
)

4:16CV3159

MEMORANDUM
AND ORDER

Pursuant to this court’s January 30, 2017, order (Filing 12), Plaintiff has filed
an Amended Complaint (Filing 14) that complies with the court’s order to allege facts
indicating that defendant Correct Care Solutions has a policy or custom of deliberately
disregarding state prisoners’ objectively serious dental needs in order to increase its
profit. Accordingly, this claim may proceed to service of process, along with
Plaintiff’s 42 U.S.C. § 1983 Eighth and Fourteenth Amendment claims for prospective
injunctive relief against defendant Nebraska Department of Correctional Services and
defendants Scott Frakes, Randy T. Kohl, Ronald Ogden, and Lisa Mathews in their
individual1 and official capacities alleging that the defendants are subjecting Plaintiff

1

It is likely that Plaintiff’s claim for injunctive relief against defendants Frakes,
Kohl, Ogden, and Mathews in their individual capacities will be analyzed as an
official-capacity claim because the relief requested (dental implants) would be
provided by the NDCS and the other defendants in their official, not individual,

to cruel and unusual punishment by being deliberately indifferent to his serious dental
needs.2
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s 42 U.S.C. § 1983 Eighth and Fourteenth Amendment claims
for prospective injunctive relief against defendants Nebraska Department of
Correctional Services, Correct Care Solutions, and defendants Scott Frakes, Randy T.
Kohl, Ronald Ogden, and Lisa Mathews in their individual and official capacities may
proceed to service of process.
2.
For service of process on defendants Nebraska Department of
Correctional Services and Frakes, Kohl, Ogden, and Mathews in their official
capacities, the clerk of the court is directed to complete a summons form and a USM285 form for such defendants using the address “Office of the Nebraska Attorney
General, 2115 State Capitol, Lincoln, NE 68509,” and forward them together with a
copy of the Complaint (Filing 1), the Amended Complaint (Filing 14), this court’s
previous Memorandum and Order on initial review (Filing 12), and a copy of this
Memorandum and Order to the Marshals Service. The Marshals Service shall serve
defendants Nebraska Department of Correctional Services and Scott Frakes,
Randy T. Kohl, Ronald Ogden, and Lisa Mathews in their official capacities at
the office of the Nebraska Attorney General, 2115 State Capitol, Lincoln, NE
capacities. See B.K. ex rel. Kroupa v. 4-H, 877 F. Supp. 2d 804, 816 (D.S.D. 2012),
aff’d sub nom. Kroupa v. Nielsen, 731 F.3d 813 (8th Cir. 2013) (court analyzed claim
for injunctive relief asserted against defendants in both individual and official
capacities as official-capacity claim since relief plaintiff requested would be provided
by defendants in their official, not individual, capacities).
2

Although the court finds that Plaintiff’s claims may proceed against
Defendants, the court cautions him that this is only a preliminary determination based
on the allegations of the Amended Complaint and is not a determination of the merits
of his claims or potential defenses thereto.
2

68509. See Federal Rule of Civil Procedure 4(j)(2); Neb. Rev. Stat. § 25-510.02
(Reissue 2016).3
3.
The clerk of the court is directed to obtain the last-known address for
defendants Scott Frakes, Randy T. Kohl, Ronald Ogden, Lisa Mathews, and Correct
Care Solutions from the United States Marshals Service for service of process on
defendant Correct Care Solutions and defendants Scott Frakes, Randy T. Kohl, Ronald
Ogden, and Lisa Mathews in their individual capacities. Once such addresses are
obtained, the clerk of the court is directed to complete a summons form and a USM285 form for such defendants using the addresses provided by the Marshals Service
and forward them together with a copy of the Complaint (Filing 1), the Amended
Complaint (Filing 14), this court’s previous Memorandum and Order on initial review
(Filing 12), and a copy of this Memorandum and Order to the Marshals Service for
service of process on defendant Correct Care Solutions and defendants Scott Frakes,
Randy T. Kohl, Ronald Ogden, and Lisa Mathews in their individual capacities. The
Marshals Service shall serve defendants Scott Frakes, Randy T. Kohl, Ronald
Ogden, and Lisa Mathews in their individual capacities using any of the
following methods: personal, residence, certified mail, or designated delivery
service. The Marshals Service shall serve defendant Correct Care Solutions by
using any of the following methods: personal, residence, certified mail,
designated delivery service, or by delivering the above-referenced materials to
an officer, director, a managing, registered, or general agent, or any other agent
authorized by appointment or by law to receive service of process or by certified
mail or designated delivery service to the corporation’s registered office. See

3

Pro se litigants proceeding in forma pauperis are entitled to rely on service by
the United States Marshals Service. Wright v. First Student, Inc., 710 F.3d 782, 783
(8th Cir. 2013). Pursuant to 28 U.S.C. § 1915(d), in an in forma pauperis case, “[t]he
officers of the court shall issue and serve all process, and perform all duties in
such cases.” See Moore v. Jackson, 123 F.3d 1082, 1085 (8th Cir. 1997) (language
in § 1915(d) is compulsory).
3

Federal Rule of Civil Procedure 4(e) & 4(h); Neb. Rev. Stat. §§ 25-508.01 & 25509.01 (Westlaw 2016).
4.
The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.
5.
The clerk of the court is directed to file under seal any document
containing the last-known personal addresses for the defendants.
6.
The clerk of the court is directed to set the following pro se case
management deadline: July 13, 2017: check for completion of service of process.
DATED this 12th day of April, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

4