Menyweather v. Dept. Of Correctional Serv. et al
MEMORANDUM AND ORDER that Plaintiff's § 1983 claims are dismissed with prejudice for failure to state a claim upon which relief may be granted. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (ADB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEPT. OF CORRECTIONAL SERV.,
SCOTT FRAKES, Director; RANDY T.
KOHL, medical director; DR.
KATHLEEN OGDEN, O.C.C. Health
Coordinator; PEGGY ANTLEY, P.A.C.
O.C.C. Physician Assistant;
MARGARET ANTLEY, P.A.; BARB
LEWIEN, d.c.c. Warden; DR.
NATAILIE BAKER, mental health
director; DR. DAVID SHRAD, O.C.C.
Dentist; DR. ODGEN, T.S. C.I. Dentist;
and DR. SAXION, L.C.C. Dentist;
Plaintiff filed a Complaint on March 27, 2017. (Filing Nos. 1, 2.) Liberally
construed, Plaintiff brings this action under 42 U.S.C. § 1983 for violation of his
Eighth Amendment rights. He contends Defendants provided him inadequate
dental care and failed to properly treat and will not now treat an infection in his
mouth that affects other parts of his body (i.e. eyes, ears, throat) because they
erroneously believe that he is delusional about the infection. (Id.) On June 29,
2017, the court ordered Plaintiff to file an amended complaint that states a claim
upon which relief may be granted. (Filing No. 15.) Specifically, the court informed
Plaintiff has been seen and treated by at least 9 doctors, albeit
medical, dental, or mental health providers, between December of
2015 and February of 2017. He has been treated with multiple rounds
of antibiotics and x-rayed several times during that same period. A
biopsy was taken of his mouth and his saliva tested. Plaintiff is not
being treated further for any infection because, after a battery of
surgeries, antibiotics, and tests, Plaintiff has been found to be
delusional about any infection. Assuming that Plaintiff is correct,
which the court must do at this stage of the pleadings, that he is not
delusional and the infection originating in his mouth remains, his
allegations sound in negligence and disagreement with diagnosis, not
deliberate indifference. Plaintiff appears to concur as he admits in his
Complaint that “he was provided with dental, but not proper dental . .
. .” (Filing No. 1 at CM/ECF p. 20.) While Plaintiff’s allegations
against Defendants may be enough to state a plausible claim for
negligence or medical malpractice, they are not enough to state a
plausible claim for deliberate indifference in violation of the Eighth
Amendment. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (holding
that mere negligence or medical malpractice are insufficient to rise to
a constitutional violation); Bender v. Regier, 385 F.3d 1133, 1137 (8th
Cir. 2004) (stating that “an inmate’s mere disagreement with the
course of his medical treatment fails to state a claim of deliberate
indifference”). He must raise those claims in the proper state forum
along with any additional state law claims arising out of the
On September 5, 2017, Plaintiff filed an Amended Complaint. (Filing No.
18.) In his Amended Complaint, Plaintiff primarily repeats part of the court’s
“Summary of Complaint and Supplement” from its previous order and then
specifies the amount of damages he seeks from each Defendant. Accordingly, for
the reasons set forth in the court’s previous order, Plaintiff’s § 1983 claims are
dismissed with prejudice.
IT IS THEREFORE ORDERED that:
Plaintiff’s § 1983 claims are dismissed with prejudice for failure to
state a claim upon which relief may be granted.
A separate judgment will be entered.
Dated this 10th day of October, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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