Robertson v. Frakes et al

Filing 13

MEMORANDUM AND ORDER - Plaintiff's § 1983 claims are dismissed with prejudice for failure to state a claim upon which relief may be granted. Plaintiff's state-law claims are dismissed without prejudice to reassertion in the proper forum. The court will enter Judgment by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID M. ROBERTSON,
Plaintiff,

8:16CV391

vs.
SCOTT R. FRAKES, DR. RANDY
KOHL, BARBARA LEWIEN, DR.
KATHLEEN OGDEN, and
MARGARET ANTLEY,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed a Complaint on August 12, 2016. (Filing No. 1.) Plaintiff
alleged that prison officials and staff exhibited deliberate indifference to his serious
medical needs in violation of 42 U.S.C. § 1983 and state law. (Id.) On December 5,
2016, the court ordered Plaintiff to file an amended complaint that states a claim
upon which relief may be granted. (Filing No. 9.) Specifically, the court informed
Plaintiff:
[I]t appears that Defendants were responsive to Plaintiff’s requests for
treatment and engaged in active efforts to address Plaintiff’s medical
conditions. Allegations suggesting that Defendants acted negligently
or refused to follow Plaintiff’s requested course of treatment are
insufficient to support an Eighth Amendment claim. See Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (holding that mere negligence or
medical malpractice are insufficient to rise to a constitutional
violation); Bender v. Regier, 385 F.3d 1133, 1137 (8th Cir. 2004)
(stating that “an inmate’s mere disagreement with the course of his
medical treatment fails to state a claim of deliberate indifference”).
Id.

On January 6, 2017, Plaintiff filed an Amended Complaint. (Filing No. 12.)
Plaintiff simply repeated some, but not all, of his allegations from his Complaint in
his Amended Complaint. Accordingly, for the reasons set forth in the court’s
previous order, Plaintiff’s § 1983 claims are dismissed with prejudice. His statelaw claims are dismissed without prejudice to reassertion in the proper forum.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s § 1983 claims are dismissed with prejudice for failure to
state a claim upon which relief may be granted.
2.
Plaintiff’s state-law claims are dismissed without prejudice to
reassertion in the proper forum.
3.

The court will enter Judgment by separate document.

Dated this 6th day of March, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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