Harvey v. Nebraska Department of Correctional Services et al

Filing 12

MEMORANDUM AND ORDER that Harvey's claims against Rademacher are dismissed. The clerk of the court is directed to send to Harvey a copy of the Amended Complaint, a copy of this Memorandum and Order, and four summons forms and four USM 285 Forms for service on Kohl and Pew in their individual and official capacities. Federal Rule of Civil Procedure 4(m) requires service of the complaint on adefendant within 120 days of filing the complaint. However, Harvey 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. If requested to do so in this matter, the United States Marshal will serve all process in this case without prepayment of fees from Harvey. In making such a request, Harvey must complete the USM 285 forms to be submitted to the clerk of the court with the completed summons forms. Without these documents, the United States Marshal will not serve process. Upon receipt of the completed f orms, the clerk of the court will sign the summons forms and forward them to the United States Marshal for service on Kohl and Pew, together with a copy of the Amended Complaint. Ordered by Judge John M. Gerrard. (Copies and forms mailed as directed)(SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JASON WILLIAM HARVEY,
Plaintiff,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES,
RANDY KOHL, STEVEN E.
RADEMACHER, and JULIE A.
PEW,
Defendants.

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8:15CV102

MEMORANDUM
AND ORDER

This case was filed by Plaintiff Jason William Harvey on March 20, 2015. The
court conducted a pre-service screening of Harvey’s Complaint (Filing No. 1) on July
6, 2015. The court ordered Harvey to file an amended complaint that stated a claim
for relief against a defendant who was not immune from suit.
Harvey filed his Amended Complaint (Filing No. 10) on August 12, 2015. The
court now conducts an initial review of the Amended Complaint in accordance with
28 U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF AMENDED COMPLAINT
Liberally construed, Harvey asserts Eighth Amendment and medical-negligence
claims against Defendants Randy Kohl, Steven Rademacher, and Julie Pew. Kohl is
a medical director for the Nebraska Department of Correctional Services (“NDCS”),
Rademacher is an “infectious disease specialist” for the NDCS, and Pew is a nurse for
the NDCS. (Filing No. 10 at CM/ECF p. 1.)

Harvey alleged he entered the NDCS prison system on May 29, 2014. He spent
his first 62 days of incarceration at the Diagnostic and Evaluation Center (“DEC”).
After these 62 days, his custody was transferred to the Nebraska State Prison (“NSP”).
(Filing No. 10 at CM/ECF p. 1.)
Harvey underwent a skin test at the DEC that revealed he had contracted
“Inactive Tuberculosis.” When he arrived at the NSP, he was evaluated by
Rademacher. Rademacher determined Harvey also had Hepatitis C and Diabetes.
(Filing No. 10 at CM/ECF p. 1.) Rademacher determined Harvey’s Hepatitis C would
have to be treated first so that his liver, which was in the stages of cirrhosis, could
tolerate the medications needed to treat his other conditions. Rademacher
recommended treating Harvey’s Hepatitis C with a newly-approved drug called
Harvoni. (Filing No. 10 at CM/ECF p. 2.)
Harvey’s proposed treatment plan was submitted to Kohl for approval.
Thereafter, Pew informed Harvey that the prison would not provide him with Harvoni
because he had not been incarcerated for a period of at least one year. Harvey asked
if the medication was being denied because of its cost, and Pew responded that cost
was a factor. (Filing No. 10 at CM/ECF p. 2.)
Harvey alleges his health has deteriorated since his incarceration. His various
diseases cause him extreme pain and he has begun to feel numbness in his left hand.
Harvey believes his prison medical providers’ failure to treat his Hepatitis C will
result in further deterioration of his health. For relief, he seeks treatment of his
Hepatitis C with the medication Harvoni, and also monetary damages. (Filing No. 10
at CM/ECF pp. 2-3.)

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II. 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 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
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law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495
(8th Cir. 1993).

III. DISCUSSION
Harvey seeks injunctive and monetary relief against the defendants in their
individual and official capacities for violations of the Eighth Amendment and state
law. For the reasons that follow, the court finds that Harvey has stated plausible
claims for relief against Kohl and Pew, but not against Rademacher.
To prevail on an Eighth Amendment claim, Harvey must prove that the
defendants acted with deliberate indifference to his serious medical needs. See Estelle
v. Gamble, 429 U.S. 97, 106 (1976). The deliberate indifference standard includes
both an objective and a subjective component. Harvey must demonstrate that (1) he
suffered from objectively serious medical needs, and (2) the defendants knew of, but
deliberately disregarded, those needs. See Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th
Cir. 2000) (quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.1997)).
For a claim of deliberate indifference, the prisoner must show more than
negligence, more even than gross negligence, and mere disagreement with treatment
decisions does not give rise to the level of a constitutional violation. Deliberate
indifference is akin to criminal recklessness, which demands more than negligent
misconduct. Popoalii v. Correctional Medical Services, 512 F.3d 488, 499 (8th Cir.
2008). A prisoner’s mere disagreement with the course of his medical treatment fails
to state a claim against a prison physician for deliberate indifference under the Eighth
Amendment. Bender v. Regier, 385 F.3d 1133, 1137 (8th Cir. 2004).
Here, Harvey has alleged plausible claims for relief against Kohl and Pew.
Harvey’s allegations reflect Kohl and Pew are aware of Harvey’s medical conditions
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and they are aware of Rademacher’s proposed treatment for Harvey’s medical
conditions. Despite this knowledge, they allegedly refused to provide the treatment
recommended by Rademacher because Harvey has not been incarcerated long enough
and the treatment is too expensive. If true, these allegations may constitute deliberate
indifference to Harvey’s serious medical needs. Accordingly, Harvey’s claims against
Kohl and Pew in their individual and official capacities may proceed to service of
process. The court cautions Harvey that allowing his claims to proceed to service of
process is not a determination of the merits of his claims or potential defenses to them.
Harvey’s claims against Rademacher may not proceed to service of process.
Harvey alleged Rademacher recommended the treatment Harvey now seeks to compel
the prison to provide him. The court cannot discern from Harvey’s allegations how
Rademacher was deliberately indifferent to Harvey’s medical needs.
IT IS THEREFORE ORDERED that:
1.

Harvey’s claims against Rademacher are dismissed.

2.
The clerk of the court is directed to send to Harvey a copy of the
Amended Complaint, a copy of this Memorandum and Order, and four summons
forms and four USM 285 Forms for service on Kohl and Pew in their individual and
official capacities. (See attached Notice Regarding Service.)
Federal Rule of Civil Procedure 4(m) requires service of the complaint on a
defendant within 120 days of filing the complaint. However, Harvey 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 Harvey. In making such a
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request, Harvey must complete the USM 285 forms to be submitted to the clerk of the
court with the completed summons forms. Without these documents, the United
States Marshal will not serve process. Upon receipt of the completed forms, the clerk
of the court will sign the summons forms and forward them to the United States
Marshal for service on Kohl and Pew, together with a copy of the Amended
Complaint.
4.
The clerk of the court is directed to set the following pro se case
management deadline: February 12, 2016, check for completion of service of process.
DATED this 19th day of October, 2015.
BY THE COURT:
s/ John M. Gerrard
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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Notice Regarding Federal Rule of Civil Procedure 4
Federal Rule of Civil Procedure 4 requires that a defendant be served with the
complaint and a summons. This is to make sure that the party you are suing has notice
of the lawsuit. Federal Rule of Civil Procedure 4(e) governs service of process on an
individual (i.e., your individual capacity claims). Federal Rule of Civil Procedure 4(j)
governs service of process on a state (i.e., your official capacity claims).
In this case, Rule 4(e) and (j) mean copies of the summons and complaint must be
served on: (1) Defendants individually; and also (2) the Nebraska Attorney General’s
Office or the chief executive officer for the State of Nebraska.
You may ask the United States Marshal to serve process, as described in the court’s
order, because you are proceeding in forma pauperis.