Norris v. Nebr. Dept. of Corr. Srvcs. et al

Filing 11

MEMORANDUM AND ORDER This action may proceed to service of process as to Plaintiff's claims against defendants Frakes, Kohl, Lewein, Wees, Small, Schmoker, Ogden, Antley, and Wesley in their individual capacities, in addition to those as-yet u nidentified members of the OCC medical staff (also in their individual capacities) that had direct involvement in Plaintiff's post-surgery treatment. Defendants Nebraska Department of Correctional Services and Omaha Correctional Center are dis missed from this action, as are Plaintiff's official-capacity claims against defendants Frakes, Kohl, Lewein, Wees, Small, Schmoker, Ogden, Antley, and Wesley. The clerk of the court is directed to send to Plaintiff a copy of the Complaint, a co py of this Memorandum and Order, and 9 summons forms and 9 USM 285 Forms for service on defendants Frakes, Kohl, Lewein, Wees, Small, Schmoker, Ogden, Antley, and Wesley in their individual capacities. (See attached Notice Regarding Service.) Federa l 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 orde r 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 Plaintiff. In making such a request, Plaintiff must complete the USM 285 forms and submit them to the clerk of the court, together 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 a nd forward them to the Marshal for service on Defendants, together with copies of the Complaint. In the event Plaintiff asks the United States Marshal to serve process, the clerk of the court will make copies of the Complaint for service on Defendants. The clerk of the court is directed to set the following pro se case management deadline: November 28, 2016: check for completion of service. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HEATH NORRIS,

)
)
Plaintiff,
)
)
v.
)
)
NEBR. DEPT. OF CORR. SRVCS., )
OMAHA CORR. CNTR., SCOTT
)
FRAKES, DR. RANDY KOHL,
)
BARBARA LEWEIN, CURT WEES, )
OMAHA CORR. CNTR. MEDICAL )
STAFF, including and all other
)
unnamed John and Jane Does known )
and unknown, D. SMALL, C.
)
SCHMOKER, DR. KATHLEEN
)
OGDEN, M. ANTLEY, M.
)
WESLEY, and JOHN AND JANE
)
DOES, known and unknown
)
employees and/or contractors,
)
)
Defendants.
)
)

8:16CV187

MEMORANDUM
AND ORDER

This action was filed by plaintiff Heath Norris, a pro se litigant incarcerated at
the Omaha Correctional Center (“OCC”) in Omaha, Nebraska. The court previously
granted Plaintiff permission to proceed in forma pauperis in this action. The court
now conducts an initial review of the Complaint (Filing No. 1) to determine whether
summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff seeks declaratory, injunctive, and monetary relief against the Nebraska
Department of Correctional Services (“NDCS”), the OCC, several administrators and

medical staff members of the NDCS and OCC, and John and Jane Does in their
individual and official capacities for deliberate indifference to Plaintiff’s serious
medical needs, violation of his right to equal protection, and negligence under state
law.
The crux of Plaintiff’s 14 pages of factual allegations is that following surgery
for a broken ankle, and despite the fact that Plaintiff’s orthopedic surgeon prescribed
post-surgery pain medication1 to be taken up to four times per day as needed, the
defendants would only administer the medication three times per day because his
“post-surgery recovery does not rise to the level that warrants the dispensing of your
medication over and above three times a day. Nebraska Department of Correctional
Services medical professionals (not your surgeon) will have the final say on inmate
medication consumption.” (Filing No. 1 at CM/ECF p. 15.) Plaintiff complains that
the defendants withheld doses of his pain medication that he desperately needed due
to his “severe” and “extreme” level of pain; they began weaning Plaintiff off his
narcotic pain medication more than a week earlier than his surgeon actually ordered
it; and they deprived him of his medication without consulting his ankle surgeon.
In response to Plaintiff’s “extreme” nighttime pain caused by missing the fourth
daily dose of his pain pills, Plaintiff alleges that defendant Ogden, an OCC physician,
told him:
that he should not expect them to treat him as if he were on the streets as
far as medical standards go. She continued, explaining that the surgeon’s
orders were more of a suggestion than a reality. Dr. Ogden informed the
Plaintiff that it was OCC’s policy to disregard an outside provider’s
orders if it conflicts with established pill call schedules [which
apparently was only three times per day].

1

Plaintiff alleges that the medication was hydrocodone-acetaminophen. (Filing
No. 1 at CM/ECF p. 4.)
2

(Filing No. 1 at CM/ECF p. 9.)
Plaintiff asserts that withholding his prescribed pain medication constituted
deliberate indifference to his serious medical needs in violation of the Eighth
Amendment; that the NDCS and OCC policy of “refusing to accept orders or
prescriptions from outside providers constitutes a prohibition to medical care for
inmates in violation of the Equal Protection Clause of the Fourteenth Amendment .
. . .”; and that the defendants were negligent under state law. (Filing No. 1 at CM/ECF
p. 17.)
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.
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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
A. Immunity
Plaintiff has sued the NDCS, the OCC, and several administrators and medical
staff members of the NDCS and OCC in both their individual and official capacities.
Plaintiff seeks monetary and declaratory relief for alleged past violations of federal
law, as well as injunctive relief. Thus, the initial question presented is whether the
Eleventh Amendment bars these claims.
The Eleventh Amendment to the United States Constitution provides states,
state agencies, and state officials acting in their official capacities with immunity from
suits brought by citizens of other states and from suits brought by a state’s own
citizens. See Hadley v. North Arkansas Cmty. Technical Coll., 76 F.3d 1437, 1438
(8th Cir. 1996), cert. denied, 519 U.S. 1148 (1997); Hans v. Louisiana, 134 U.S. 1,
15 (1890). 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., id.;
Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981). An exception to this
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immunity was recognized by the Supreme Court in Ex Parte Young, 209 U.S. 123
(1908), which permits prospective injunctive relief against state officials for ongoing
federal law violations. This exception does not apply to cases involving requests for
purely retroactive relief. Green v. Mansour, 474 U.S. 64 (1985).
Plaintiff’s claims for monetary relief and for a declaration of past constitutional
violations against these defendants are barred by Eleventh Amendment sovereign
immunity. Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir. 2007)
(Eleventh Amendment bars claims against state and its agencies for any kind of relief;
Eleventh Amendment bars claims for money against state officials in their official
capacities); Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012) (per curiam)
(section 1983 provides no cause of action against agents of the state acting in their
official capacities; sovereign immunity bars claim against state-agency employees for
monetary damages under federal act); Jacobson v. Bruning, No. 4:06-CV-3166, 2007
WL 1362638, at *2 (D. Neb. Apr. 24, 2007) (“a declaratory judgment establishing
past liability of the State is . . . forbidden by the Eleventh Amendment” (italics in
original) (citing Verizon Maryland, Inc. v. Public Service Comm’n of Maryland, 535
U.S. 635, 646 (2002))); Hansen v. Vampola, No. 4:07CV3074, 2007 WL 1362689,
at *2 (D. Neb. Apr. 16, 2007) (“A declaratory judgment establishing only the past
liability of the state is forbidden by the state’s sovereign immunity preserved by the
Eleventh Amendment to the Constitution.” (bold in original)).
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 for monetary and declaratory relief for alleged past violations
of federal law against the NDCS, the OCC, and all defendant administrators and
medical staff members of the NDCS and OCC in their official capacities are barred
by the Eleventh Amendment and must be dismissed.
Further, and as discussed below, Plaintiff’s claim for injunctive relief, grounded
in equal protection, is apparently related to the defendants’ policy of prohibiting him
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from “receiving similar treatment and care that an ordinary citizen might receive
outside of incarceration.” (Filing No. 1 at CM/ECF p. 18.) Because this equal
protection claim must be dismissed for failure to state a claim upon which relief can
be granted, so must Plaintiff’s claim for prospective injunctive relief related to this
“policy.”2
B. Eighth Amendment Claim
To prevail on an Eighth Amendment claim, Plaintiff 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. Plaintiff 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 than gross negligence, and mere disagreement with treatment
decisions does not reach 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

2

In addition, a suit may be brought under § 1983 only against a “person” who
acted under color of state law. A state, its agencies and instrumentalities, and its
employees in their official capacities are not a ‘persons’ “as that term is used in
§ 1983, and [are] not suable under the statute, regardless of the forum where the suit
is maintained.” Hilton v. South Carolina Pub. Railways Comm’n, 502 U.S. 197, 20001 (1991). See also McLean v. Gordon, 548 F.3d 613, 618 (8th Cir. 2008) (states,
arms of the state, and state officials acting in their official capacities are not subject
to suit under § 1983). Thus, § 1983 does not create a cause of action against the
NDCS, the OCC, and the administrators and medical staff of those entities in their
official capacities.
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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).
“[T]he knowing failure to administer prescribed medicine can itself constitute
deliberate indifference.” Phillips v. Jasper Cty. Jail, 437 F.3d 791, 796 (8th Cir.
2006). “When an official denies a person treatment that has been ordered or
medication that has been prescribed, constitutional liability may follow.” Dadd v.
Anoka Cty., No. 15-2482, ___ F.3d ___, 2016 WL 3563424, at *4 (8th Cir. June 30,
2016) (right to adequate medical treatment was clearly established when pretrial
detainee arrived at jail after dental surgery with Vicodin prescription for severe pain
and deputies and jail nurse acted with deliberate indifference by ignoring detainee’s
complaints of pain and requests for treatment). See also Foulks v. Cole Cty., Mo., 991
F.2d 454, 455-57 (8th Cir. 1993) (holding there was liability where jail officials
disregarded an instruction sheet from the plaintiff’s doctor, ignored complaints of
sickness and pain, and refused to provide medication they were aware was
prescribed); Majors v. Baldwin, 456 Fed. App’x 616, 617, 2012 WL 739347 (8th Cir.
2012) (unpublished) (holding that plaintiff had established a deliberate indifference
claim where defendants withheld prescribed pain medication and did not provide
adequate post-operative treatment); Motton v. Lancaster Cty. Corr., No. 4:07CV3090,
2008 WL 2859061, at *6 (D. Neb. July 21, 2008) (noting that the knowing failure to
administer prescribed medicine can constitute deliberate indifference, but to establish
constitutional violation, inmate must produce evidence that delay in providing medical
treatment had detrimental effect on inmate).3
3

See also Gil v. Reed, 381 F.3d 649, at 663-64 (7th Cir. 2004) (prison doctor’s
failure to follow directions of outside specialist raises inference of deliberate
indifference); Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002) (prison doctor
and nurse’s refusal to dispense narcotic pain reliever prescribed by outside surgeon
following inmate’s surgery “would give rise to liability under section 1983”; validity
of medical personnel’s explanation for refusal to give prescribed medicine to inmate
was “an issue for the jury”); Medrano v. Smith, No. 05-1092, 161 Fed. App’x 596,
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1. Medical Personnel
Plaintiff plausibly alleges that the defendants who were medical personnel at
the OCC were aware of Plaintiff’s medical condition, the surgeon’s prescribed postoperative medication, and Plaintiff’s extreme level of pain. Despite this knowledge,
they refused to administer all doses of Plaintiff’s pain medication, as recommended
by his surgeon, so as not to disrupt the OCC’s “pill call” schedule. This could
constitute deliberate indifference to Plaintiff’s serious medical needs. Therefore, at
this early stage in the proceedings, the court finds Plaintiff has adequately pled an
Eighth Amendment claim against defendants Small, Schmoker, Ogden, Antley,
Wesley, and other as-yet unidentified members of the OCC medical staff that had
direct involvement in Plaintiff’s post-surgery treatment.

2006 WL 27711 (7th Cir. Jan. 6, 2006) (prison doctors’ failure to exercise any
medical judgment by investigating, diagnosing, or treating inmate’s increasing pain
when doctors knew of prisoner’s prior surgeries, in addition to stopping prescriptions
authorized by other physicians without explanation, stated claim against prison
doctors). But see Hairston v. McGuire, 57 F. App’x 788, 789, 2003 WL 157554 (10th
Cir. 2003) (no Eighth Amendment claim for deliberate indifference to serious medical
needs when prison nurse changed Motrin prescription following inmate’s jaw surgery
to Tylenol based on inmate’s prior diagnosis of Hepatitis C); Williams v. Bearry, No.
00-60731, 2001 WL 1085197, at *3 (5th Cir. Sept. 7, 2001) (per curiam)
(unpublished) (prison doctor is a primary physician and not required to follow
consulting surgeon’s exact regimen); Berry v. Fitts, No. CIV. A. C-09-3, 2010 WL
345750, at *9 (S.D. Tex. Jan. 22, 2010) (unpublished) (adopting Magistrate Judge’s
Recommendation) (refusal of prison physician to prescribe Tylenol #3, as prescribed
by surgeon, for pain management in advance of unscheduled surgery was “no more
than a mere disagreement with the course of treatment provided, and not deliberate
indifference”; prison doctor found surgeon’s prescription inappropriate because
Ibuprofen had worked in past for prisoner, Tylenol #3 is not recommended for
prolonged periods of time, especially for patients with history of drug or alcohol
addiction, and Ibuprofen could be taken up to three days before as-yet unscheduled
surgery).
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2. Non-Medical Personnel
Plaintiff also names as defendants several NDCS and OCC supervisors and
administrators—Scott Frakes, NDCS Director; Dr. Randy Kohl, NDCS Medical
Director; Barbara Lewein, OCC Warden; and Curt Wees, OCC Unit Administrator.
“It is well settled that § 1983 does not impose respondeat superior liability.”
Hughes v. Stottlemyre, 454 F.3d 791, 798 (8th Cir. 2006). To state a § 1983 claim, the
plaintiff must allege that the defendant was personally involved in or had direct
responsibility for incidents that resulted in injury. Martin v. Sargent, 780 F.2d 1334,
1338 (8th Cir. 1985). “Supervisors can, however, ‘incur liability . . . for their personal
involvement in a constitutional violation, or when corrective inaction amounts to
deliberate indifference to or tacit authorization of violative practices.’” Langford v.
Norris, 614 F.3d 445, 460 (8th Cir. 2010) (internal quotations omitted).
Here, Plaintiff alleges that defendants Kohl, Lewein, and Wees had direct
knowledge of his complaints and medical condition, but did nothing to assist him or
ensure he received proper care. Further, he alleges that Frakes is responsible for the
operation of the NDCS, its staff, and its contractors. At this stage of the proceedings,
Plaintiff has alleged sufficient facts to state an Eighth Amendment claim against
administrative/supervisory defendants Frakes, Kohl, Lewein, and Wees.
C. Equal Protection Claim
As to Plaintiff’s equal protection claim, he alleges that “[t]he Defendants’,
NDCS and OCC, policies for refusing to accept orders or prescriptions from outside
providers constitutes a prohibition to medical care for inmates in violation of the
Equal Protection Clause of the Fourteenth Amendment of the United States
Constitution” and that the defendants’ policy of prohibiting him from “receiving
similar treatment and care that an ordinary citizen might receive outside of

9

incarceration” violates the Fourteenth Amendment. (Filing No. 1 at CM/ECF p. 18.)
(Filing No. 1 at CM/ECF p. 17.)
The Equal Protection Clause of the Fourteenth Amendment provides that no state
shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. The clause essentially directs “that all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S.
432, 439 (1985). To state an equal protection claim, a plaintiff must establish that he
was treated differently from others similarly situated to him. Johnson v. City of
Minneapolis, 152 F.3d 859, 862 (8th Cir. 1998).
Here, Plaintiff has not alleged that he was treated differently from other
prisoners similarly situated to him; rather, Plaintiff alleges that the defendants’ policy
represents a substandard level of medical care than that received by nonprisoners in
the outside world. Because “[p]risoners are not similarly situated to nonprisoners,”
this claim must be dismissed. Scher v. Chief Postal Inspector, 973 F.2d 682, 683-84
(8th Cir. 1992); see also Hrbek v. Farrier, 787 F.2d 414, 417 (8th Cir. 1986)
(prisoners and nonprisoners are not similarly situated for equal protection purposes).
IV. STATE-LAW CLAIMS
Plaintiff also raises state-law claims against Defendants for negligence. At this
time, the court makes no finding with respect to its jurisdiction over these claims or
whether they state a claim upon which relief may be granted. In order to ensure a just
and fair resolution of this matter, Plaintiff’s state-law claims will be allowed to
proceed to service of process along with the Eighth Amendment claim detailed above.
V. CONCLUSION
In light of the liberal construction afforded to pro se litigants’ pleadings, the
court finds that Plaintiff has sufficiently alleged an Eighth Amendment claim for
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deliberate indifference to Plaintiff’s serious medical needs against defendants Frakes,
Kohl, Lewein, Wees, Small, Schmoker, Ogden, Antley, and Wesley in their individual
capacities, in addition to those as-yet unidentified members of the OCC medical staff
(also in their individual capacities) that had direct involvement in Plaintiff’s postsurgery treatment. This claim, may proceed to service of process, along with
Plaintiff’s state negligence claim.
Plaintiff’s claims for monetary and declaratory relief for alleged past violations
of federal law against the NDCS, the OCC, and the defendant administrators and
medical staff members of the NDCS and OCC in their official capacities are barred
by the Eleventh Amendment and must be dismissed, as well as Plaintiff’s purported
equal protection claim and his related request for injunctive relief. These claims may
not proceed to service of process.4
Accordingly,
IT IS ORDERED:
1.
This action may proceed to service of process as to Plaintiff’s claims
against defendants Frakes, Kohl, Lewein, Wees, Small, Schmoker, Ogden, Antley, and
Wesley in their individual capacities, in addition to those as-yet unidentified members
of the OCC medical staff (also in their individual capacities) that had direct
involvement in Plaintiff’s post-surgery treatment.

4

To the extent Plaintiff complains about the speed in which his grievances were
handled, such allegations do not rise to 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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2.
Defendants Nebraska Department of Correctional Services and Omaha
Correctional Center are dismissed from this action, as are Plaintiff’s official-capacity
claims against defendants Frakes, Kohl, Lewein, Wees, Small, Schmoker, Ogden,
Antley, and Wesley.
3.
The clerk of the court is directed to send to Plaintiff a copy of the
Complaint, a copy of this Memorandum and Order, and 9 summons forms and 9 USM
285 Forms for service on defendants Frakes, Kohl, Lewein, Wees, Small, Schmoker,
Ogden, Antley, and Wesley in their individual 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, 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.
4.
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
request, Plaintiff must complete the USM 285 forms and submit them to the clerk of
the court, together 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 Marshal
for service on Defendants, together with copies of the Complaint. In the event
Plaintiff asks the United States Marshal to serve process, the clerk of the court will
make copies of the Complaint for service on Defendants.
5.
The clerk of the court is directed to set the following pro se case
management deadline: November 28, 2016: check for completion of service.
DATED this 22nd day of July, 2016.

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BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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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).
In this case, Rule 4(e) means copies of the summons and complaints must be served
on the defendants individually.
You may ask the United States Marshal to serve process, as described in the court’s
order, because you are proceeding in forma pauperis.

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