Chrisp v. Lancaster County Jail et al

Filing 31

MEMORANDUM AND ORDER that Chrisp must file a second amended complaint within 30 days in accordance with this Memorandum and Order. Failure to file a second amended complaint will result in the court dismissing this case without further notice to Chri sp. The clerk of the court is directed to set a pro se case management deadline in this matter: June 22, 2015: Check for second amended complaint; dismiss if none filed. Chrisp's Motion to Appoint Counsel 28 is denied. Chrisp's Motion for Discovery 29 is denied. The clerk of the court is directed to send to Chrisp a blank civil complaint form. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party with form) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CAMERON CHRISP,
Plaintiff,
v.
LANCASTER COUNTY JAIL,
LANCASTER COUNTY,
NEBRASKA, CORRECT CARE
SOLUTIONS, (Jail Medical
Company), Ne., MIKE THURBER,
(Jail Director), Ne., SCHAFFER,
Sargent (grievance investigator) Ne.,
and PSN #5530,
Defendants.

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8:14CV344

MEMORANDUM
AND ORDER

This action was filed by Cameron Chrisp (“Chrisp” or “Plaintiff”), a pro se
litigant incarcerated at the Hall County Department of Corrections in Grand Island,
Nebraska. He filed his complaint (Filing No. 1) in this case on October 27, 2014, at
which time he was incarcerated at the Lancaster County Jail in Lincoln, Nebraska.
The court previously ordered Chrisp to file an amended complaint, which he did on
April 15, 2015 (Filing No. 30). The court now conducts an initial review of Chrisp’s
amended complaint to determine whether summary dismissal is appropriate under 28
U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Liberally construed, Chrisp brought this action pursuant to 42 U.S.C. § 1983.
The named defendants are Lancaster County, Nebraska, the Lancaster County Jail,
Correct Care Solutions, Mike Thurber, and Sargent Schaffer. (Filing No. 30 at
CM/ECF p. 1.) Chrisp also named “PSN # 5530” as a defendant; however, the court

will disregard this reference because Chrisp provided no indication of what “PSN #
5530” refers to.
Chrisp alleged jail staff did not give him the pain medication Tramadol on 20
occasions between December of 2014 and February of 2015. (Id. at CM/ECF p. 2.)
Chrisp alleged he suffered from “multiple chronic physical conditions” that have “not
been surgically corrected.” (Id.) He alleged:
Nurses informed me that as of Dec 2014 The Jail & Jail Medical lacked
proper drug license to continue to purchase tramadol in bulk or in large
enough Quantities to ensure tramadol for all inmates who were
prescribed tramadol within the Jail. I was told by some medical staff that
the law which changed tramadol from a schedule 3 narcotic to a schedule
z narcotic went into effect around December 2014 for which the Jail nor
Jail Medical Company had made the appropriate or necessary changes
or adjustments to continue purchasing [enough] tramadol for all inmates
prescribed within the Jail.
(Id. at CM/ECF p. 3.)
Chrisp stated these events caused him “excessive” suffering, and they interfered
with his “ability to exercise [his] constitutional rights.” (Id.) For relief, Chrisp seeks
“damages.” (Id. at CM/ECF p. 6.)
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 of
it that states a frivolous or malicious claim, that fails to state a claim upon which relief

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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(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).
Liberally construed, Plaintiff here alleges federal constitutional claims. To state
a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected
by the United States Constitution or created by federal statute and also must show that
the alleged deprivation was caused by conduct of a person acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).

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III. DISCUSSION
A.

Lancaster County Defendants

Chrisp named Lancaster County and two Lancaster County officials as
defendants in this case. The court assumes Chrisp has sued the two county officials
in their official capacities.1 The initial question the court must consider is whether
Chrisp’s claims against the county defendants fail as a matter of law because he did
not allege a policy or custom caused his injuries.
A municipality is liable under § 1983 only if injury was caused pursuant to the
municipality’s policy or custom. Los Angeles Cnty., California v. Humphries, 562
U.S. 29, 30-31 (2010) (citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S.
658 (1978)). “Official policy involves ‘a deliberate choice to follow a course of action
made from among various alternatives’ by an official who has the final authority to
establish governmental policy.” Jane Doe A By and Through Jane Doe B v. Special
Sch. Dist. of St. Louis Cnty., 901 F.2d 642, 645 (8th Cir. 1990) (quoting Pembaur v
City of Cincinnati, 475 U.S. 469, 483 (1986)). In order to establish the existence of
a governmental custom, a plaintiff must prove:
1)

The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s
employees;

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Chrisp did not specify the capacity in which the defendants are sued. Where
a plaintiff fails to “expressly and unambiguously” state that a public official is sued
in his individual capacity, the court “assume[s] that the defendant is sued only in his
or her official capacity.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th
Cir. 1999).

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2)

Deliberate indifference to or tacit authorization of such conduct by
the governmental entity’s policymaking officials after notice to
the officials of that misconduct; and

3)

That plaintiff was injured by acts pursuant to the governmental
entity’s custom, i.e., that the custom was the moving force behind
the constitutional violation.

Jane Doe, 901 F.2d at 646.
Here, Chrisp did not allege a Lancaster County policy or custom caused his
injuries. Therefore, his amended complaint does not state a claim upon which relief
may be granted against the county and the two county officials sued in their official
capacities. On the court’s own motion, Chrisp will be given an opportunity to file a
second amended complaint that states a claim upon which relief may be granted
against Lancaster County.
B.

Failure to Provide Tramadol

The issue raised by Chrisp in this case is whether jail officials’ failure to give
him Tramadol violated his constitutional rights. It is unclear whether Chrisp was a
pretrial detainee or a convicted prisoner at the time of the alleged constitutional
violation. Regardless of his status, the standard to analyze his claim is the same. See
Smith v. Conway Cnty. Ark., 759 F.3d 853, 858 (8th Cir. 2014) (“Although the Eighth
Amendment has no application until there has been a formal adjudication of guilt, the
Fourteenth Amendment gives state pretrial detainees—just as the Fifth Amendment
gives federal pretrial detainees—rights which are at least as great as the Eighth
Amendment protections available to a convicted prisoner. Conduct constituting cruel
and unusual punishment a fortiori constitutes punishment. And the Due Process
Clause prohibits any punishment of a pretrial detainee, be that punishment
cruel-and-unusual or not.”) (internal citation and quotation omitted).

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In an Eighth Amendment inadequate-medical-care case, the court considers
whether the plaintiff: (1) had an objectively serious medical need; and (2) prison
officials actually knew of and deliberately disregarded that serious medical need.
Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000). “In order to state a cognizable
claim, a prisoner must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106
(1976). “A serious medical need is ‘one that has been diagnosed by a physician as
requiring treatment, or one that is so obvious that even a layperson would easily
recognize the necessity for a doctor’s attention.’” Coleman v. Rahija, 114 F.3d 778,
784 (8th Cir. 1997) (quoting Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995)).
Chrisp did not allege facts suggesting he had a serious medical need or that jail
officials were deliberately indifferent to a serious medical need. First, he did not
describe his medical condition with enough specificity to make it plausible that he
suffered from a “serious medical need.” He alleged only that he suffered from
“multiple chronic physical conditions.” (Filing No. 30 at CM/ECF p. 2.) Second,
even assuming Chrisp suffered from objectively serious medical needs, he did not
offer sufficient facts to suggest jail officials were deliberately indifferent to those
needs. Chrisp alleged jail staff refused to give him Tramadol on 20 occasions,
apparently because there was a shortage of the medication in the jail. Chrisp did not
allege jail officials disregarded his need for pain management or disregarded whatever
his medical condition was at the time. Rather, he alleged only that they would not
give him Tramadol because it was not available. In other words, Chrisp’s allegations
do not suggest he was denied treatment or that his medical needs were ignored. They
suggest he did not receive the medication of his choice which, by itself, is not a
constitutional violation.
In summary, Chrisp did not allege facts suggesting he suffered from any serious
medical need, or that jail officials were deliberately indifferent to any serious medical
need. On the court’s own motion, Chrisp will be given an opportunity to file a second
amended complaint that sets forth a plausible claim for relief. Chrisp is encouraged
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to use the court-approved form to draft his third amended complaint, which the clerk
of the court will provide to him. Chrisp must clearly designate on the face of the
document that it is the “Third Amended Complaint” in this case.
C.

Exhaustion of Administrative Remedies

Chrisp alleged he attempted to file grievances concerning jail officials’ failure
to give him Tramadol. (See Filing No. 30 at CM/ECF pp. 3-4.) The court construes
these allegations as being offered to support Chrisp’s contention that he exhausted his
administrative remedies.2 However, at this stage in the proceedings, Chrisp need not
demonstrate exhaustion of administrative remedies. See 42 U.S.C. § 1997e(a) (“[n]o
action shall be brought with respect to prison conditions under section 1983 of this
title . . . until such administrative remedies as are available are exhausted.”); Jones v.
Bock, 549 U.S. 199, 212 (2007) (stating administrative exhaustion is an affirmative
defense that defendants have the burden to plead and prove).
IV. MOTION TO APPOINT COUNSEL
Chrisp filed a motion seeking the appointment of counsel (Filing No. 28). 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. The
trial court has broad discretion to decide whether both the plaintiff and the court will
benefit from the appointment of counsel[.]” Id. (internal citation and quotation marks

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To the extent Chrisp intended to allege Defendants took too long to respond
to his grievances, such allegations do not rise the level of a constitutional violation.
Even the failure to respond to a grievance altogether is not, by itself, a constitutional
violation. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (holding that
prison officials’ failure to process inmates’ grievances, without more, is not actionable
under section 1983).
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omitted). No such benefit is apparent here at this time. Thus, the request for the
appointment of counsel will be denied.
V. MOTION FOR DISCOVERY
Chrisp filed correspondence in this case addressed to the clerk of the court
seeking discovery of, among other things, “all records relevant to himself, the Lancaster
County Jail, Correct Care Solutions, Dr. Piccalo & APRN Hadley[.]” (Filing No. 29 at
CM/ECF p. 1.) As discussed above, Chrisp’s amended complaint does not state a claim
for which relief may be granted. Therefore, any motion related to discovery is
premature.
IT IS THEREFORE ORDERED that:
1.
Chrisp must file a second amended complaint within 30 days in
accordance with this Memorandum and Order. Failure to file a second amended
complaint will result in the court dismissing this case without further notice to Chrisp.
2.
The clerk of the court is directed to set a pro se case management
deadline in this matter: June 22, 2015: Check for second amended complaint; dismiss
if none filed.
3.

Chrisp’s Motion to Appoint Counsel (Filing No. 28) is denied.

4.

Chrisp’s Motion for Discovery (Filing No. 29) is denied.

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5.
The clerk of the court is directed to send to Chrisp a blank civil complaint
form. Chrisp is encouraged to use the form to draft his second amended complaint.
Chrisp must clearly designate on the face of the document that it is the “Third
Amended Complaint” in this case.
DATED this 26th day of May, 2015.
BY THE COURT:
Richard G. Kopf
Senior 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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