Wilson v. Houston et al

Filing 10

MEMORANDUM AND ORDER - Plaintiff shall have until October 28, 2011, to amend his Complaint and clearly state a claim upon which relief may be granted, in accordance with this Memorandum and Order. If Plaintiff fails to file an amended complaint, this matter will be dismissed without further notice for failure to state a claim upon which relief may be granted. In the event that Plaintiff files an amended complaint, Plaintiff shall restate the allegations of the current Complaint (filing no. 1 ), and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. The Clerk of the court is directed to set a pro se case managementdeadline in this case using the following text: Check for amende d complaint on October 28, 2011. Plaintiff shall keep the court informed of his current address at all times while this case is pending. Failure to do so may result in dismissal without further notice.Ordered by Judge Richard G. Kopf. (Copy mailed/e-mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
OLANDO LAMAR WILSON,
Plaintiff,
v.
ROBERT HOUSTON, et al.,
Defendants.

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8:11CV193

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on May 31, 2011. (Filing No. 1.)
Plaintiff has previously been given leave to proceed in forma pauperis. (Filing No.
6.) The court now conducts an initial review of the Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I.

SUMMARY OF COMPLAINT
Plaintiff filed his Complaint on May 31, 2011, against the Nebraska Department

of Correctional Services (“NDCS”), the Tecumseh State Correctional Institution
(“TSCI”) and four individual NDCS or TSCI employees (“Individual Defendants”).
(Filing No. 1 at CM/ECF p. 1.) Plaintiff sues each of the Individual Defendants in
both their individual and official capacities. (Id.) Plaintiff is currently confined at
TSCI in Tecumseh, Nebraska. (Id.; see also Docket Sheet.)
Condensed and summarized, Plaintiff alleges that on May 14, 2010, Plaintiff
walked into the control center and asked Caseworker Jordan for a canteen sheet.
(Filing No. 1-1, Attach. 1 at CM/ECF p. 1.) Caseworker Jordan placed the canteen
sheet into the control center hatch and deliberately pushed the hatch into Plaintiff’s
mouth, which chipped his teeth. (Id.) Plaintiff then asked for a grievance, which
Caseworker Jordan provided. (Id.) Three days later, Plaintiff went to open sick call
and was given Tylenol for pain. (Id. at CM/ECF p. 2.) The next day, Plaintiff visited
a TSCI dental assistant who scheduled Plaintiff for an appointment with dentist “Dr.

Ogden” on May 19, 2010. (Id.)
At Plaintiff’s dentist appointment, Dr. Ogden took x-rays of Plaintiff’s mouth
and confirmed that he had a chipped tooth. (Id.) Dr. Ogden also directed Plaintiff to
take Penicillin three times a day. (Id.) On July 19, 2010, Plaintiff visited Dr. Ogden
for a follow-up appointment. (Id. at CM/ECF p. 3.) At the follow-up appointment,
Dr. Ogden discovered another chipped tooth and advised Plaintiff to use “synsodyne
[sic]” toothpaste to help with sensitivity. (Id.) Plaintiff visited Dr. Ogden again on
November 24, 2010. (Id.) At this appointment, Dr. Ogden filed Plaintiff’s teeth to
smooth out the chips. (Id.)
Plaintiff asserts that his teeth are still sensitive and asks the court to order
Defendants to fix them properly. (Filing No. 1 at CM/ECF p. 6.) He also asks for
monetary damages in the amount of $100,000. (Id.)
II.

APPLICABLE LEGAL 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
thereof that states a frivolous or malicious claim, that fails to state a claim upon which
relief 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.
A pro se plaintiff must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (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
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liable for the misconduct alleged.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient to
state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However,
a pro se plaintiff’s allegations must be construed liberally. Burke v. North Dakota
Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).
III.

DISCUSSION OF CLAIMS
A.

Sovereign Immunity

The Eleventh Amendment bars claims for damages by private parties against
a state, state instrumentalities and an employee of a state sued in the employee’s
official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th
Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir.
1995). Any award of retroactive monetary relief payable by the state, including for
back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of
immunity by the state or an override of immunity by Congress. See, e.g., Dover
Elevator Co., 64 F.3d at 444; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981).
Sovereign immunity does not bar damages claims against state officials acting in their
personal capacities, nor does it bar claims brought pursuant to 42 U.S.C. §1983 which
seek equitable relief from state employee defendants acting in their official capacity.
Here, Plaintiff sues NDCS, TSCI and several individual state employees in both
their individual and official capacities. (Filing No. 1 at CM/ECF p. 1.) As set forth
above, the Eleventh Amendment bars claims for damages by private parties against
a state, state instrumentalities and employees of a state sued in their official capacities.
Consequently, Plaintiff’s monetary damages claims against NDCS, TSCI and the
Individual Defendants in their official capacities are barred by the Eleventh
Amendment. However, the Eleventh Amendment does not bar Plaintiff’s equitable
relief claims or Plaintiff’s monetary claims against the Individual Defendants in their
individual capacities.

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B.

Eighth Amendment Medical

The court liberally construes Plaintiff’s allegations to allege an Eighth
Amendment claim relating to denial of medical treatment.

A prisoner-plaintiff

seeking relief for claims relating to his medical care must allege that a defendantprison official was deliberately indifferent to the plaintiff’s serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 105 (1976); Coleman v. Rahija, 114 F.3d 778, 784
(8th Cir. 1997)). Further, a plaintiff must allege that he had objectively serious
medical needs, and that officials actually knew of but deliberately disregarded those
needs. Hartsfield v. Colburn, 491 F.3d 394, 396-97 (8th Cir. 2007); Johnson v.
Hamilton, 452 F.3d 967, 972-73 (8th Cir. 2006). “[S]ociety does not expect that
prisoners will have unqualified access to health care.” Hudson v. McMillian, 503
U.S. 1, 9 (1992). Therefore, “deliberate indifference to medical needs amounts to an
Eighth Amendment violation only if those needs are ‘serious.’” Id. (citing Estelle,
429 U.S. at 103-04).
Here, Plaintiff visited open sick call, a dental assistant and a dentist. (Filing No.
1-1, Attach. 1 at CM/ECF pp. 2-3.) In 2010, Dr. Ogden examined Plaintiff on three
separate occasions, provided Plaintiff with medication, advised Plaintiff to use
“synsodyne [sic]” toothpaste, and filed Plaintiff’s teeth to smooth out the chips. (Id.)
Thus, even if Plaintiff’s tooth sensitivity is a serious medical need, which the court
doubts,1 it is clear from Plaintiff’s Complaint that Defendants are not disregarding that
need. In light of this, Plaintiff has failed to state an Eighth Amendment medical claim
upon which relief may be granted.

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See, e.g., Greene v. Pollard, No. 08-C-728, 2008 WL 4821285, at*1 (E.D. Wis.
Nov. 4, 2008) (“Mere sensitivity in a tooth, however, does not sufficiently allege a
‘serious medical need’ to which someone can be deliberately indifferent.”); Hobbs v.
Fulco, No. 5:09CV00368 BSM/HDY, 2010 WL 6576059, at *2-3 (E.D. Ark. Nov. 22,
2010) (indicating that tooth sensitivity can be treated in a variety of different ways
including sensitivity toothpaste).
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C.

Eighth Amendment Excessive Force

In addition to his Eighth Amendment medical claim, Plaintiff alleges an Eighth
Amendment excessive force claim. “It is well established that a malicious and sadistic
use of force by a prison official against a prisoner, done with the intent to injure and
causing actual injury, is enough to establish a violation of the Eighth Amendment’s
cruel and unusual punishment clause.” Williams v. Jackson, 600 F.3d 1007, 1012 (8th
Cir. 2010) (internal quotations omitted). However, “‘not . . . every malevolent touch
by a prison guard gives rise to a federal cause of action,’ a de minimis application of
force will not give result in a constitutional violation.” Id. (quoting Hudson v.
McMillan, 503 U.S. 1, 9 (1992)); see also Wilkins v. Gaddy, 130 S.Ct. 1177-78 (2010)
(“An inmate who complains of a push or shove that causes no discernable injury
almost certainly fails to state a valid excessive force claim.” (internal quotation marks
omitted)). Where the force applied is excessive, however, a constitutional claim may
survive summary dismissal even if the resulting injury is de minimis. Wilkins, 130
S.Ct. at 1180.
Here, Plaintiff alleges that he walked into the control center and asked
Caseworker Jordan for a canteen sheet. (Filing No. 1-1 at CM/ECF p. 1.) Caseworker
Jordan placed the canteen sheet into the control center hatch and deliberately pushed
the hatch into Plaintiff’s mouth, which chipped his teeth. (Id.) Plaintiff then asked
for a grievance, which Caseworker Jordan provided. (Id.) When read as a whole,
these allegations do not allow the court to reasonably infer that Caseworker Jordan
maliciously and sadistically pushed the control center hatch into Plaintiff’s mouth.
However, on the court’s own motion, Plaintiff shall have 30 days to file an amended
complaint to allege facts sufficient to show that Caseworker Jordan maliciously and
sadistically pushed the hatch into his mouth with intent to injure him. Any amended
complaint shall restate the allegations of Plaintiff’s prior Complaint (filing no. 1) and
any new allegations. Failure to consolidate all claims into one document will result
in the abandonment of claims. If Plaintiff fails to file an amended complaint in
accordance with this Memorandum and Order, Plaintiff’s Eighth Amendment
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excessive force claim will be dismissed without prejudice for failure to state a claim
upon which relief may be granted.
D.

State Law Claims

Liberally construing the Complaint, Plaintiff may also have claims for
violations of state law such as assault and malpractice. Pending amendment of the
Complaint as set forth in this Memorandum and Order, the court makes no finding
regarding its jurisdiction over any potential state law claims.
IT IS THEREFORE ORDERED that:
1.

Plaintiff shall have until October 28, 2011, to amend his Complaint and

clearly state a claim upon which relief may be granted, in accordance with this
Memorandum and Order. If Plaintiff fails to file an amended complaint, this matter
will be dismissed without further notice for failure to state a claim upon which relief
may be granted.
2.

In the event that Plaintiff files an amended complaint, Plaintiff shall

restate the allegations of the current Complaint (filing no. 1), and any new allegations.
Failure to consolidate all claims into one document may result in the abandonment of
claims.
3.

The Clerk of the court is directed to set a pro se case management

deadline in this case using the following text: Check for amended complaint on
October 28, 2011.
4.

Plaintiff shall keep the court informed of his current address at all times

while this case is pending. Failure to do so may result in dismissal without further
notice.

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DATED this 3 rd day of October, 2011.
BY THE COURT:
Richard G. Kopf
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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