Waddell v. Osterholm

Filing 7

MEMORANDUM AND ORDER that the Clerk is directed to send to Plaintiff a copy of the Complaint, a copy of this Memorandum and Order, 1 summons form and 1 USM 285 form. Upon receipt of the completed forms, the Clerk will sign the summons form and forwa rd it to the USM for service on the defendant. The Clerk is directed to set a pro se case management deadline of 5/25/15: Check for completion of service of summons. Ordered by Judge John M. Gerrard. (Copies mailed to pro se party as directed) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHROCIA WADDELL,
Plaintiff,
v.
DR. RICHARD OSTERHOLM,
Defendant.

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8:14CV264

MEMORANDUM
AND ORDER

Plaintiff Chrocia Waddell filed her Complaint in this matter on September 9,
2014. (Filing No. 1.) Plaintiff has 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)(2).
I. BACKGROUND
Plaintiff brought this action against Dr. Richard Osterholm, a physician who
treated her from 1998 to 2011. (Filing No. 1 at CM/ECF pp. 1-2.) Plaintiff saw Dr.
Osterholm because of “problems with [her] stomach being sick.” (Id. at CM/ECF p.
1.) In response, Dr. Osterholm prescribed the medication Compazine for Plaintiff’s
nausea. He continued to do so throughout the course of Plaintiff’s treatment. (Id.)
In October 2012, Plaintiff was diagnosed with Tartive Dyskensia, which was caused
by Plaintiff’s ongoing use of Compazine. (Id. at CM/ECF p. 2.) Because of the
Tartive Dyskensia, Plaintiff no longer produces saliva, which caused her teeth to rot.
In addition, Plaintiff suffers from involuntary facial movements. (Id.) In 2013,
Plaintiff’s teeth were removed and she was fitted with “dentures with implants
because [her] mouth moves all the time.” (Id.)
Plaintiff argues that Dr. Osterholm should have known that “giving [her] the
Compazine for as long as he did” would result in illness. (Id. at CM/ECF pp. 2-3.)

As relief in this matter, Plaintiff seeks $5 million as compensation for her pain and
suffering.
II. STANDARD ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must
dismiss a complaint or any portion of it 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).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (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.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds
for a claim, and a general indication of the type of litigation involved.’” Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v.
Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must
be liberally construed, and pro se litigants are held to a lesser pleading standard than
other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations
omitted).
III. DISCUSSION

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Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1332, commonly
referred to as “diversity of citizenship” jurisdiction, “when the citizenship of each
plaintiff is different from the citizenship of each defendant.” Ryan v. Schneider Nat’l
Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001). In addition, the amount in
controversy must be greater than $75,000.00 for diversity of citizenship jurisdiction.
28 U.S.C. § 1332(a).
Here, Plaintiff alleges a medical malpractice claim against Defendant. Plaintiff
resides in Phoenix, Arizona, and Defendant resides in Nebraska. (Filing No. 1 at
CM/ECF p. 1.) In addition, Plaintiff alleges the amount in controversy is $5 million,
an amount greater than $75,000.00. Thus, subject matter jurisdiction is proper in this
court pursuant to 28 U.S.C. § 1332, and the court will allow this matter to proceed to
service of process. Plaintiff is cautioned that this is only a preliminary determination
based on the allegations set forth in the Complaint. It is not a determination of the
merits of her claims or a decision with respect to any defenses that may be raised in
response to her Complaint.
IT IS ORDERED:
1.

This matter may proceed to service of process.

2.
The Clerk of Court is directed to send to Plaintiff a copy of the
Complaint, a copy of this Memorandum and Order, and one summons form and one
USM 285 Form. Federal Rule of Civil Procedure 4(m) requires service of the
complaint on a defendant within 120 days of filing the complaint. However, Plaintiff
is granted, on the court’s own motion, an extension of time until 120 days from the
date of this order to complete service of process.
3.
If requested to do so in this matter, the United States Marshal will serve
all process in this case without prepayment of fees from Plaintiff. In making such a
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request, Plaintiff must complete the USM 285 form to be submitted to the Clerk with
the completed summons form. Without these documents, the United States Marshal
will not serve process.
4.
Upon receipt of the completed forms, the Clerk of Court will sign the
summons form and forward it to the Marshal for service on Defendant, together with
a copy of the Complaint.
5.
The Clerk is directed to set a pro se case management deadline in this
case with the following text: May 25, 2015: Check for completion of service of
summons.
DATED this 22nd day of January, 2015.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

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