Davlin v. Miller et al

Filing 10

MEMORANDUM AND ORDER-Plaintiffs Eighth Amendment claims against defendants in their official capacities are dismissed without prejudice. To obtain service of process on defendants, plaintiff must complete and return the summons forms which the clerk of the court will provide. The clerk of the court shall send TWO (2) summons forms and TWO (2) USM-285 forms (for service on defendants in their individual capacities only) to plaintiff together with a copy of this Memorandum and Order. Plaintiff is granted an extension of time until 120 days from the date of this order to complete service of process. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 5/29/2012.May29, 2012: Check for completion of service of summons. ) Ordered by Senior Judge Lyle E. Strom. (Copy mailed/e-mailed to pro se party as directed)(MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
CLIFFORD J. DAVLIN,

)
)
Plaintiff,
)
)
v.
)
)
TIM MILLER, Unit Manager,
)
Housing Unit # 3, Nebraska
)
State Penitentiary; and
)
O. PEREZ, Case Worker,
)
Housing Unit # 3, Nebraska
)
State Penitentiary, and in
)
their individual and official )
capacities,
)
)
Defendants.
)
______________________________)

8:11CV396

MEMORANDUM AND ORDER

Plaintiff filed his complaint in this matter on
November 21, 2011 (Filing No. 1).

Plaintiff has previously been

given leave to proceed in forma pauperis (Filing No. 8) and has
paid the initial partial filing fee.

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 November 21, 2011,

against two individual employees of the Nebraska State
Penitentiary (“NSP”)(Filing No. 1).

Defendants are sued in both

their official and individual capacities.

(Id. at CM/ECF p. 2.)

Plaintiff is currently confined at NSP in Lincoln, Nebraska.
(Id. at CM/ECF p. 1.)

Plaintiff alleges that he is a diabetic and that
medical staff authorized him to keep certain diabetic supplies,
including medication, “lances” and “alcohol pads” in his cell.
(Id. at CM/ECF p. 2, 6.)

On October 28, 2011, plaintiff obtained

a drug called “Metformin,” lances, and alcohol pads from medical
staff at NSP for treatment of his diabetes.
2.)

(Id. at CM/ECF p.

Defendants thereafter “threatened” plaintiff and confiscated

these supplies, along with plaintiff’s “glucosemeter and blood
sugar test strips.”

(Id. at CM/ECF pp. 2-3.)

Plaintiff

approached defendant Perez regarding how to treat his diabetes
after confiscation of these items, but defendant Perez told him,
“I don’t know and I don’t care . . . go away.”
5.)

(Id. at CM/ECF p.

Plaintiff also approached defendant Miller about the

confiscation of his diabetes treatment supplies and defendant
Miller also disregarded plaintiff’s requests.

(Id. at CM/ECF pp.

5-6.)
As a result of the confiscation of his supplies,
plaintiff’s diabetes was untreated for nine days, during which he
experienced “extremely high rated glucose serum” and became
“critical dangerously ill.”

(Id. at CM/ECF p. 4.)

Plaintiff

alleges that defendants acted with “deliberate indifference to
his serious medical needs” by “intentionally depriv[ing]”
plaintiff of his diabetic treatment supplies and causing him to

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become seriously ill.

(Id. at CM/ECF pp. 6-8.)

unspecified monetary compensation.
II.

Plaintiff seeks

(Id. at CM/ECF p. 8.)

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.
1915(e) and 1915A.

See 28 U.S.C. §§

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 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
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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
Plaintiff seeks monetary relief only against two

employees of the State of Nebraska (Filing No. 1 at CM/ECF pp. 12, 8).

However, 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.

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Here, plaintiff sues defendants in both their
individual and official capacities and seeks monetary relief only
(Filing No. 1 at CM/ECF p. 8).
the State of Nebraska.

Both defendants are employees of

As set forth above, plaintiff may not sue

a state or its employees in their official capacities for
monetary relief absent a waiver of immunity by the state or an
override of immunity by Congress.

There is nothing in the record

before the court showing that the State of Nebraska waived, or
that Congress overrode, sovereign immunity in this matter.

Thus,

plaintiff’s claims against defendants in their official
capacities must be dismissed.
B.

Eighth Amendment Medical Claim
Liberally construed, plaintiff’s complaint is brought

pursuant to 42 U.S.C. § 1983 and alleges that defendants violated
plaintiff’s Eighth Amendment rights to receive medical care while
incarcerated (Filing No. 1).

A prisoner-plaintiff seeking relief

for claims relating to his medical care must allege that a
defendant-prison 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

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967, 972-73 (8th Cir. 2006).

“[S]ociety does not expect that

prisoners will have unqualified access to health care.”
v. McMillian,

503 U.S. 1, 9 (1992).

Hudson

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 103-104).
Here, plaintiff alleges that he is a diabetic, which
requires medication, glucose testing, and other treatment (Filing
No. 1).

In addition, plaintiff specifically alleges that

defendants confiscated his diabetes treatment supplies and then
ignored his requests for treatment.

Plaintiff alleges that

defendants’ conduct was “deliberately indifferent” in failing to
allow him treatment for this condition when they confiscated his
diabetes treatment supplies even though plaintiff had permission
to keep such supplies in his cell.

The Court finds that

plaintiff’s allegations “nudge” his Eighth Amendment medical
claim across the line from conceivable to plausible.

As a

result, this claim may proceed against defendants in their
individual capacities only.

However, the Court cautions

plaintiff that this is only a preliminary determination based
only on the allegations of the complaint and is not a
determination of the merits of plaintiff’s claims or potential
defenses thereto.

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IT IS ORDERED:
1)

Plaintiff’s Eighth Amendment claims against

defendants in their official capacities are dismissed without
prejudice.

Plaintiff’s Eighth Amendment claims against

defendants in their individual capacities only may proceed.
2)

To obtain service of process on defendants,

plaintiff must complete and return the summons forms which the
clerk of the court will provide.

The clerk of the court shall

send TWO (2) summons forms and TWO (2) USM-285 forms (for service
on defendants in their individual capacities only) to plaintiff
together with a copy of this Memorandum and Order.

Plaintiff

shall, as soon as possible, complete the forms and send the
completed forms back to the clerk of the court.

In the absence

of the forms, service of process cannot occur.
3)

Upon receipt of the completed forms, the clerk of

the court will sign the summons form, to be forwarded with a copy
of the complaint to the U.S. Marshal for service of process.

The

Marshal shall serve the summons and complaint without payment of
costs or fees.

Service may be by certified mail pursuant to Fed.

R. Civ. P. 4 and Nebraska law in the discretion of the Marshal.
The clerk of the court will copy the complaint, and plaintiff
does not need to do so.
4.

Fed. R. Civ. Pro. 4 requires service of the

complaint on a defendant within 120 days of filing the complaint.

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However, because in this order plaintiff is informed for the
first time of these requirements, plaintiff is granted an
extension of time until 120 days from the date of this order to
complete service of process.
5)

Plaintiff is hereby notified that failure to obtain

service of process on a defendant within 120 days of the date of
this order may result in dismissal of this matter without further
notice as to such defendant.

A defendant has twenty (20) days

after receipt of the summons to answer or otherwise respond to a
complaint.
6)

The clerk of court is directed to set a pro se case

management deadline in this case with the following text: “May
29, 2012:

Check for completion of service of summons.”
7)

The parties are bound by the Federal Rules of Civil

Procedure and by the Local Rules of this court.

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.

DATED this 1st day of February, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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* This opinion may contain hyperlinks to other documents or
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of the Court.
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