Stamper v. Correct Care Solutions et al

Filing 7

MEMORANDUM AND ORDER - For the reasons discussed above, Stamper's Complaint may not proceed to service of process against any of the named defendants. Stamper will have 30 days in which to file an amended complaint in this matter. Failure to fi le an amended complaint will result in dismissal of this matter for failure to state a claim upon which relief may be granted. The clerk of the court is directed to set the following pro se case management deadline: May 18, 2015: check for amended complaint. The court makes no finding at this time with respect to any supplemental jurisdiction it may have over state-law claims raised in the Complaint. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 5/18/2015: check for amended complaint) Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MELVIN STAMPER,
Plaintiff,
v.
CORRECT CARE SOLUTIONS,
(Health Care Provider for Tecumseh
Correctional Facility), BRYAN WEST
MEDICAL FACILITY, and NEBRASKA
DEPARTMENT OF CORRECTIONS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

8:14CV415

MEMORANDUM
AND ORDER

Plaintiff Melvin Stamper filed his Complaint (Filing No. 1) in this matter on December
22, 2014. This court has given Stamper leave to proceed in forma pauperis. (Filing No.
6.) The court now conducts an initial review of Stamper’s Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Stamper is currently incarcerated at the Sterling Correctional Center in Sterling,
Colorado. (Filing No. 1 at CM/ECF p. 2.) His claims are based on incidents that occurred
while he was incarcerated at the Tecumseh State Correctional Institution (“TSCI”) in
Tecumseh, Nebraska. Liberally construed, he asserts state-law medial negligence claims
and also Eighth Amendment claims brought pursuant to 42 U.S.C. § 1983. He sued
Correct Care Solutions, the entity that provides healthcare services within the TSCI. (Id.
at CM/ECF p. 1.) He also sued the Nebraska Department of Correctional Services
(“NDCS”) and Bryan West Medical Facility (“Bryan West”). (Id.)

Stamper alleged he was housed in the segregation unit at the TSCI. He began to
feel sick in December of 2013 after contracting the H1N1 flu virus. (Id. at CM/ECF p. 3.)
Initially, he informed guards and nurses that he was “feeling unwell and needed some
medical attention.” (Id.) They told him to lie down and drink plenty of fluids. Later, he
informed “whoever would listen to [him]” that he was really sick and getting worse. (Id.)
He was, again, instructed to “drink plenty of fluids, and to get plenty of rest.” (Id.)
On January 12, 2014, Stamper momentarily passed out and was “rushed to the
infirmary.” (Id.) The nurse called the on-call doctor who informed the nurse to “immediately
put [Stamper] on oxygen and to call the ambulance to transport [him] to the nearest
hospital.” (Id.) Prison officials transported Stamper to a hospital in Tecumseh, Nebraska,
where the doctor diagnosed him with the flu and possibly pneumonia. (Id. at CM/ECF p.
9.) The doctor recommended that prison officials transport Stamper to Bryan West in
Lincoln, Nebraska, which they did. (Id.)
At Bryan West, Stamper was diagnosed with bilateral pneumonia.

Stamper

underwent a tracheotomy operation during which his lungs collapsed, he temporarily died,
and had to be revived. (Id. at CM/ECF p. 9.) Stamper then went into a coma for 40 days,
but states he does not “know if it was medically induced or not.” (Id.) Stamper complains
that his family was not informed that he was in the hospital until, at some point, hospital
staff called Stamper’s father to ask “what to do with [Stamper’s] body in the event [Stamper]
die[d].” (Id.)
Stamper awoke from his coma in March of 2014 and remained in the hospital for an
additional four months. At some point thereafter, Stamper entered the custody of the

2

Colorado Department of Corrections. While in the custody of the Colorado Department of
Corrections, Stamper received a CT scan and was diagnosed with interstitial lung disease.
(Id.)
Stamper’s primary complaints appear to be that prison officials failed to give him a
flu shot and, once he contracted the flu, they did not give proper him medical attention.
The lack of medical attention “caused Plaintiff’s flu to turn into bi-lateral pneumonia, and
eventually turn into interstitial lung disease.” (Filing No. 1 at CM/ECF p. 4.) Stamper also
complains that staff at Bryan West failed to diagnose his interstitial lung disease. (Id.)
For relief in this matter, Stamper seeks damages in the amount of $2 million, as well
as payment of all future medical costs and any legal costs associated with this action. (Id.
at CM/ECF p. 8.)
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 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

3

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).
III. DISCUSSION OF CLAIMS
For the reasons discussed below, Stamper’s Complaint may not proceed to service
of process against any of the named defendants. On the court’s own motion, Stamper will
have an opportunity to file an amended complaint.
A.

NDCS

4

Stamper is suing the NDCS for money damages. The NDCS is an agency of the
State of Nebraska. “The Eleventh Amendment establishes a general prohibition of suits
in federal court by a citizen of a state against his state or an officer or agency of that state.”
281 Care Comm. v. Arneson, 638 F.3d 621, 632 (8th Cir. 2011) (citing Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). There are limited exceptions to the
Eleventh Amendment bar on suits against states and state officials (in their official
capacities), see, e.g., Ex Parte Young, 209 U.S. 123 (1908), but none of those exceptions
apply here where Stamper has plainly sued a state agency for money damages. Stamper’s
claims for monetary relief against the NDCS are barred by the Eleventh Amendment.
The Eleventh Amendment does not prevent plaintiffs from bringing suits for money
damages against state officials provided that the defendants are sued in their individual
capacities. Stamper did not name any state officials as Defendants in this matter.
B.

Correct Care Solutions
It is unclear what claims Stamper intended to raise against Correct Care Solutions.

His allegations set forth that, as soon as the doctor and nurse at the prison became aware
of the severity of Stamper’s condition, they gave him oxygen and directed prison officials
to transport him to the hospital. (Filing No. 1 at CM/ECF p. 3.) Stamper did not allege they
ignored his condition or acted with deliberate indifference to his medical needs. In other
words, Stamper’s allegations concerning Correct Care Solutions’ staff do not appear to
implicate the Eighth Amendment’s prohibition on cruel and unusual punishment. See
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (reiterating that, in order to state a cognizable
claim under the Eighth Amendment, “a prisoner must allege acts or omissions sufficiently

5

harmful to evidence a deliberate indifference to serious medical needs.”). Stamper alleged
he informed nurses that he felt “unwell” at the outset of his illness, but his allegations do
not suggest he had a serious medical need at that time.
While Plaintiff alleged that he did not receive a flu shot (Filing No. 1 at CM/ECF p.
4), he did not allege any Defendant was involved in this omission of care or that any
member of the prison or medical staff actually knew of but deliberately disregarded a
serious medical need. See Allard v. Baldwin, 779 F.3d 768, 771 (8th Cir. 2015) (“An Eighth
Amendment claim that prison officials were deliberately indifferent to the medical needs of
inmates involves both an objective and a subjective component. The plaintiffs must
demonstrate (1) that they suffered objectively serious medical needs and (2) that the prison
officials actually knew of but deliberately disregarded those needs.”) (internal quotation
marks and citation omitted). To the extent Stamper’s claim is based on an assertion that
prison staff were negligent in failing to administer a flu shot, he cannot state a claim for
relief under § 1983. Negligence in diagnosing or treating a medical condition does not give
rise to a claim under the Eighth Amendment. Estelle, 429 U.S. at 106.
Separately, a defendant may not be held liable under 42 U.S.C. § 1983 based strictly
on a theory of respondeat superior. See Monell v. Dep’t of Soc. Servs. of the City of New
York, 436 U.S. 658, 690-91 (1978). This is so even when a plaintiff names a private entity,
acting under color of state law, as a defendant in a § 1983 case. See Sanders v. Sears,
Roebuck & Co., 984 F.2d 972, 975-976 (8th Cir. 1993).
C.

Bryan West

6

A defendant must act under color of state law to be held liable for constitutional
violations under 42 U.S.C. § 1983. Stamper alleged in his Complaint that Bryan West “is
the contracting medical facility” for the TSCI. (Filing No. 1 at CM/ECF p. 2.) Even
assuming, without deciding, that Bryan West is a state actor, Stamper’s claims against
Bryan West nonetheless fail as a matter of law. Plaintiff’s allegations do not plausibly
suggest that Bryan West or its staff were deliberately indifferent to Stamper’s medical
needs. Indeed, Stamper alleged medical staff diagnosed him with pneumonia, performed
a tracheotomy “so that [h]e could breath[e] easier,” revived him after he “temporarily died,”
cared for him for 40 days while he was in a coma, and then treated him for an additional
four months. (Filing No. 1 at CM/ECF p. 9.) To the extent Stamper’s claim is based on an
assertion that hospital staff were negligent in failing to diagnose him with interstitial lung
disease, he cannot state a claim for relief under § 1983. Negligence in diagnosing or
treating a medical condition does not give rise to a claim under the Eighth Amendment.
Estelle, 429 U.S. at 106.

IT IS THEREFORE ORDERED that:
1.

For the reasons discussed above, Stamper’s Complaint may not proceed to
service of process against any of the named defendants. Stamper will have
30 days in which to file an amended complaint in this matter. Failure to file
an amended complaint will result in dismissal of this matter for failure to state
a claim upon which relief may be granted.

2.

The clerk of the court is directed to set the following pro se case
management deadline: May 18, 2015: check for amended complaint.

7

3.

The court makes no finding at this time with respect to any supplemental
jurisdiction it may have over state-law claims raised in the Complaint.

DATED this 15th day of April, 2015.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

8