Nahkahyen-Clearsand v. Lincoln Regional Center et al

Filing 8

MEMORANDUM AND ORDER that this case is dismissed with prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) and for failure to prosecute and/or obey the court's orders pursuant to Federal Rule of Civil Procedure 41(b). A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KMG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHAWNN NAHKAHYENCLEARSAND,
4:17CV3074
Plaintiff,
MEMORANDUM
AND ORDER

vs.
LINCOLN REGIONAL CENTER, A
State Psychiatric Hospital; DENNIS
CONNELLY, Dr. - In their Individual
and Official Capacities; and THERESA
HANSEN, RN - In their Individual and
Official Capacities;
Defendants.

Plaintiff filed a Complaint on June 19, 2017. (Filing No. 1.) He has been
given leave to proceed in forma pauperis. (Filing No. 5.) Upon initial review, the
court informed Plaintiff of the specific deficiencies in his allegations and allowed
him 30 days to file an amended complaint that states a claim upon which relief
may be granted. (Filing No. 6.) The court dismissed Plaintiff’s § 1983 claims for
monetary relief against Defendants in their official capacities because they are
barred by the Eleventh Amendment. (Id.) Now, the court reviews Plaintiff’s
Amended Complaint. (Filing No. 7.)
The allegations in Plaintiff’s Amended Complaint are nearly identical to
those in his Complaint, with three exceptions. First, Plaintiff attached his “Master
Treatment Plan Update” to his Amended Complaint. (Filing No. 7 at CM/ECF pp.
12-13.) The document shows that Plaintiff has been diagnosed with mental illness
and medical issues, including a “short term problem of right foot fracture,” during
his time at the Lincoln Regional Center. Second, Plaintiff makes allegations about
the lack of response to his pain, but admits that he had Tylenol. (Id. at CM/ECF pp.

5-6.)1 Finally, he dismisses the “issue of loss of job” because he cannot show that
the program or activity from which he was allegedly excluded receives federal
financial assistance. (Id. at CM/ECF p. 7.) The court finds that Plaintiff’s
allegations continue to fail to state a claim against Defendants for the reasons set
forth in the court’s Memorandum and Order on initial review (Filing No. 6).
In his previous case2 against Defendants, the court informed Plaintiff of
many of the same deficiencies repeated to Plaintiff in this case. Because of his
previous case and the opportunity for amendment in that case, the court warned
Plaintiff that it would dismiss this case with prejudice pursuant to Federal Rule of
Civil Procedure 41(b) if he failed again to state a plausible claim in an amended
complaint.3 Accordingly,

1

Plaintiff’s allegations are (1) on August 8, 2016, he saw Dr. Connelly and
“[n]othing [was] done for [his] pain”; (2) on August 12, 2016, he explained to
Hansen that he was having pain and that Tylenol did not work, and she told him it
was up to Dr. Connelly; and (3) on August 13, 2016, he asked Hansen “if
something could be done for the pain,” and she told him that Dr. Connelly said to
wait until he saw Dr. Bozart on August 16th. (Filing No. 7 at CM/ECF pp. 5-6.)
2

See Nahkahyen-Clearsand v. Department of Health & Human Services et
al., Filing No. 8, Case No. 8:17-cv-00043 (D. Neb. 2017). The Lincoln Regional
Center, the current defendant, operates under the Department of Health and Human
Services.
3

See Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962) (“The authority of
a federal trial court to dismiss a plaintiff’s action with prejudice because of his
failure to prosecute cannot be seriously doubted ... It has been expressly recognized
in Federal Rule of Civil Procedure 41(b).”). See also Beck v. LaFleur, 257 F.3d
764 (8th Cir. 2001) (“Because Beck failed to follow the district court’s detailed
and explicit directions on how to cure his initial complaint and because the
substance of his allegations in the amended complaint are nearly identical to his
initial complaint, we hold that dismissal with prejudice was appropriate.”).
2

IT IS THEREFORE ORDERED that:
1.
This case is dismissed with prejudice for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) and for failure to
prosecute and/or obey the court’s orders pursuant to Federal Rule of Civil
Procedure 41(b).
2.

A separate judgment will be entered.

Dated this 19th day of September, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

3