Brown v. Doel et al

Filing 28

MEMORANDUM AND ORDER - Plaintiff's Motion to Appoint Counsel (filing no. 22 ) is denied without prejudice to reassertion. Plaintiff's Motion for Summons (filing no. 23 ) is granted in part, and denied in part, in accordance with this M emorandum and Order. Plaintiff's Eighth Amendment claims against Dr. Jeffrey Kasselman in his individual capacity, as well as in his official capacity for prospective injunctive relief only, may proceed to service of process. Plaintiff's official capacity claims against Dr. Kasselman for monetary and declaratory relief are dismissed. Defendants Dr. Deol, Dr. Gary J. Hustad, and Dan Danaher shall have until November 26, 2018, to file an answer to the Amended Complaint (filing no. 21 ) if they so choose. The clerk of the court is directed to set the following pro se case management deadline: November 26, 2018: check for Defendants' answer to amended complaint. The clerk of the court is directed to set the following pro se case management deadline: January 3, 2019: check for completion of service of process on Dr. Kasselman. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JESUS BROWN,
Plaintiff,
vs.
DR. DEOL, Nebraska Department of
Correctional Services Medical Director,
individually and in their offiacl
capacities; GARY J. HUSTAD, MD,
individually and in their offiacl
capacities; DAN DANAHER, Physician
Assistant, individually and in their
offiacl capacities; and DR. JEFFREY
KASSELMAN, in his individual and
official capacity;

4:18CV3020
MEMORANDUM
AND ORDER

Defendants.
This matter is before the court on Plaintiff’s Motion for Counsel (filing no.
22) and what the court construes as a motion for summons (filing no. 23), which
were both filed in conjunction with Plaintiff’s Amended Complaint (filing no. 21).
The court will address each motion below.
I. MOTION TO APPOINT COUNSEL
Plaintiff asks the court to appoint him counsel due to his inability to afford
private counsel. As the court previously explained in denying Plaintiff’s first
motion for counsel (see filing no. 16 at CM/ECF pp. 12–13), 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.” Trial
courts have “broad discretion to decide whether both the plaintiff and the court will

benefit from the appointment of counsel, taking into account the factual and legal
complexity of the case, the presence or absence of conflicting testimony, and the
plaintiff’s ability to investigate the facts and present his claim.” Id. Having
considered these factors, the request for the appointment of counsel will be denied
without prejudice to reassertion.
II. AMENDED COMPLAINT AND MOTION FOR SUMMONS
On October 5, 2018, Plaintiff filed an Amended Complaint1 (filing no. 21)
and what the court construes as a Motion for Summons (filing no. 23). In his
Amended Complaint, Plaintiff seeks to add Dr. Jeffrey Kasselman as a Defendant
and alleges Dr. Kasselman is the pain specialist for the Nebraska Department of
Correctional Services (“NDCS”) who “agreed to remove [Plaintiff] off his
medication, even when he was in serious pain.” (Filing No. 21 at CM/ECF pp. 1, 3,
¶¶ 4, 20.)
Upon review of Plaintiff’s Amended Complaint and given the liberal
construction afforded to pro se litigants’ pleadings, the court concludes that
Plaintiff has sufficiently alleged an Eighth Amendment claim for deliberate
indifference to Plaintiff’s serious medical needs against Dr. Kasselman. Plaintiff’s
claims may proceed to service of process against Dr. Kasselman in his individual
capacity, and only his claim for prospective injunctive relief may proceed against
Dr. Kasselman in his official capacity. Plaintiff’s official-capacity claims against
Dr. Kasselman for monetary and declaratory relief are dismissed for the same
reasons stated in the court’s August 24, 2018 Memorandum and Order (filing no.
16).

1

Plaintiff’s Amended Complaint was properly filed pursuant to Federal Rule of Civil
Procedure 15(a)(1)(A) (“A party may amend its pleading once as a matter of course within: (A)
21 days after serving it . . . .”).

2

Plaintiff filed six “Praecipe[s] for Summons” along with his Amended
Complaint, seeking to have his Amended Complaint served on all the Defendants.
(Filing No. 23.) Based on the court’s review of the Amended Complaint, Plaintiff’s
Motion for Summons is granted to the extent that the court will direct the clerk of
the court to complete the appropriate summons forms and forward them to the
United States Marshals Service for service on Dr. Kasselman in his individual and
official capacity. Plaintiff’s Motion for Summons is denied to the extent he seeks
to serve the Amended Complaint on Physician Assistants Cheryl Flinn and Vaughn
Wenzel as those Defendants have been dismissed from this action. (See Filing No.
16 at CM/ECF p. 15.)
Defendants Dr. Deol, Dr. Gary J. Hustad, and Physician Assistant Dan
Danaher were served with the original Complaint prior to the date Plaintiff filed his
Amended Complaint. (See Filing Nos. 18, 19, 20, 24, & 25.) These Defendants, in
both their individual and official capacities, filed an Answer (filing no. 26) through
counsel on October 15, 2018, subsequent to Plaintiff’s filing of his Amended
Complaint. The Defendants’ Answer appears to respond to the allegations
contained in Plaintiff’s original Complaint (filing no. 1), but also asserts various
defenses “in response to the allegations in the Amended Complaint.” (Compare
Filing No. 26 at CM/ECF p. 1 with Filing No. 26 at CM/ECF p. 5, “Defenses”
(emphasis added).) If Defendants Dr. Deol, Dr. Hustad, and Danaher are satisfied
that their Answer sufficiently addresses the allegations of the Amended Complaint,
then they may forgo filing a new answer. If, however, these Defendants feel their
Answer insufficiently responds to the Amended Complaint, then the Defendants
have 30 days from the date of this order to file an answer to the Amended
Complaint. Accordingly,
IT IS ORDERED that:
1.
Plaintiff’s Motion to Appoint Counsel (filing no. 22) is denied without
prejudice to reassertion.

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2.
Plaintiff’s Motion for Summons (filing no. 23) is granted in part, and
denied in part, in accordance with this Memorandum and Order.
3.
Plaintiff’s Eighth Amendment claims against Dr. Jeffrey Kasselman
in his individual capacity, as well as in his official capacity for prospective
injunctive relief only, may proceed to service of process. Plaintiff’s officialcapacity claims against Dr. Kasselman for monetary and declaratory relief are
dismissed.
4.
For service of process on defendant Dr. Jeffrey Kasselman in his
official capacity, the clerk of the court is directed to complete a summons form and
USM-285 form for defendant Dr. Jeffrey Kasselman using the address “Office of
the Nebraska Attorney General, 2115 State Capitol, Lincoln, NE 68509,” and
forward them together with a copy of the Amended Complaint (filing no. 21), a
copy of the court’s August 24, 2018 Memorandum and Order (filing no. 16), and a
copy of this Memorandum and Order to the Marshals Service. The Marshals
Service shall serve defendant Dr. Jeffrey Kasselman in his official capacity at
the office of the Nebraska Attorney General, 2115 State Capitol, Lincoln, NE
68509. Federal Rule of Civil Procedure 4(j)(2); Neb. Rev. Stat. § 25-510.02
(Reissue 2016). 2
5.
For service of process on defendant Dr. Jeffrey Kasselman in his
individual capacity, the clerk of the court is directed to complete a summons form
2

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). See, e.g., Beyer v.
Pulaski County Jail, 589 Fed. Appx. 798 (8th Cir. 2014) (unpublished) (vacating district court
order of dismissal for failure to prosecute and directing district court to order the Marshal to seek
defendant’s last-known contact information where plaintiff contended that the Jail would have
information for defendant’s whereabouts); Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995)
(when court instructs Marshal to serve papers for prisoner, prisoner need furnish no more than
information necessary to identify defendant; Marshal should be able to ascertain defendant’s
current address).

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and a USM-285 form for defendant Dr. Jeffrey Kasselman using the address
“Tecumseh State Correctional Institution, 2725 Hwy. 50, Tecumseh, NE 68450,”
and forward them together with a copy of the Amended Complaint (filing no. 21),
a copy of the court’s August 24, 2018 Memorandum and Order (filing no. 16), and
a copy of this Memorandum and Order to the Marshals Service. The Marshals
Service shall serve defendant Dr. Jeffrey Kasselman personally in his
individual capacity at the Tecumseh State Correctional Institution, 2725 Hwy.
50, Tecumseh, NE 68450. Service may also be accomplished by using any of the
following methods: residence, certified mail, or designated delivery service. See
Federal Rule of Civil Procedure 4(e); Neb. Rev. Stat. § 25-508.01 (Reissue 2016).
6.
Defendants Dr. Deol, Dr. Gary J. Hustad, and Dan Danaher shall have
until November 26, 2018, to file an answer to the Amended Complaint (filing no.
21) if they so choose. The clerk of the court is directed to set the following pro se
case management deadline: November 26, 2018: check for Defendants’ answer to
amended complaint.
7.
The clerk of the court is directed to set the following pro se case
management deadline: January 3, 2019: check for completion of service of
process on Dr. Kasselman.
Dated this 25th day of October, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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