Robertson v. Frakes et al

Filing 9

MEMORANDUM AND ORDER - Plaintiff shall file an amended complaint by January 5, 2017, that states a claim upon which relief may be granted. Failure to file an amended complaint within the time specified by the court will result in the court dismissin g this case without further notice to Plaintiff. The clerk of the court is directed to set a pro se case management deadline using the following text: January 5, 2017: check for amended complaint. 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,
V.
SCOTT R. FRAKES, ROBERT
HOUSTON, MICHAEL KENNEY,
DR. RANDY KOHL, FRANK X.
HOPKINS, JAMES JENSEN, FRED
BRITTEN, BRIAN GAGE,
MICHELLE CAPPS, UNKNOWN
BUSBOOM,
UNKNOWN
WEATHERSPOON, CORRECT
CARE SOLUTIONS, DR.
UNKNOWN STONE, DR. JEFF
DAMME, BARBARA LEWIEN,
BRAD MCDONNELL, KEN
SCHMIDT, EDWARD FABIEN, DR.
MARY FLEARL, DR. KATHLEEN
OGDEN, MARGARET ANTLEY,
WENDY VAN AALST, UNKNOWN
SMALLEY, and JOHN AND JANE
DOES, All, Known and Unknown,
Defendants.

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8:16CV391

MEMORANDUM AND ORDER

This matter is before the court on initial review of Plaintiff’s Complaint
pursuant to 28 U.S.C. § 1915(e). For the reasons that follow, the court finds that
Plaintiff has failed to state a claim upon which relief can be granted. However, on its
own motion, the court will allow Plaintiff to file an amended complaint.

I. APPLICABLE 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
law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495
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(8th Cir. 1993).
II. SUMMARY OF COMPLAINT
Plaintiff asserts this action pursuant to 42 U.S.C. § 1983 for alleged violations
of his Eighth Amendment rights. (Filing No. 1.) Specifically, Plaintiff alleges that
prison officials and staff exhibited deliberate indifference to his serious medical needs.
Plaintiff’s Complaint is quite lengthy, and sets forth Plaintiff’s medical history
relating to certain medical conditions. In sum, Plaintiff contends that he suffered from
serious shoulder, back, leg, and knee conditions, but Defendants deliberately
disregarded his need for medical treatment.
III. DISCUSSION
Plaintiff claims that Defendants were deliberately indifferent to his medical
needs in violation of the Eighth Amendment. To establish a § 1983 claim for
deprivation of medical care, Plaintiff must demonstrate that he suffered objectively
serious medical needs, and that officials actually knew of but deliberately disregarded
those needs. Johnson v. Hamilton, 452 F.3d 967, 972-73 (8th Cir. 2006). Society
does not expect that prisoners will have unqualified access to health care. Therefore,
deliberate indifference to medical needs amounts to an Eighth Amendment violation
only if those needs are serious. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (citing
Estelle v. Gamble, 429 U.S. 97, 103-104 (1976)). “Deliberate indifference is
equivalent to criminal-law recklessness, which is ‘more blameworthy than
negligence,’ yet less blameworthy than purposefully causing or knowingly bringing
about a substantial risk of serious harm to the inmate.” Schaub v. VonWald, 638 F.3d
905, 914-15 (8th Cir. 2011) (quoting Farmer v. Brennan, 511 U.S. 825, 835, 839-40
(1970)). Plaintiff’s Complaint fails to state a cause of action for multiple reasons.
First, Plaintiff’s Complaint names multiple state employees as defendants. The
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employees are named as defendants in their official and individual capacities. The
Eleventh Amendment bars claims for damages by private parties against a state, state
instrumentalities, and an employee of a state sued in the employee’s official capacity.
See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995); Dover
Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir. 1995). 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). Sovereign immunity does not, however, bar
damages claims against state officials acting in their personal capacities, nor does it
bar claims brought pursuant to 42 U.S.C. §1983 that seek equitable relief from state
employee defendants acting in their official capacity. Therefore, to the extent Plaintiff
seeks to recover monetary relief against the employees acting in their official
capacities, the Eleventh Amendment bars his claims.
Second, although Plaintiff has named multiple state employees as defendants,
Plaintiff’s Complaint does not identify the actions taken by each named defendant.
“Individual liability under § 1983 must be based on personal involvement in the
alleged constitutional violation.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th
Cir. 2009). A complaint that only lists a defendant’s name in the caption without
alleging that the defendant was personally involved in the alleged misconduct fails to
state a claim against that defendant. Krych v. Hvass, 83 F. App’x 854, 855 (8th Cir.
2003).
Finally, Plaintiff’s Complaint, which is forty-pages in length, describes his
medical history in great detail. Assuming that Plaintiff suffers from serious medical
needs, the allegations in the Complaint indicate that Defendants were not deliberately
indifferent. To the contrary, it 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
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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”).
Based on the series of events described in the Complaint, the court is highly
doubtful that Plaintiff can succeed on his Eighth Amendment claim. However, out of
an abundance of caution, the court will grant Plaintiff leave to file an amended
complaint that states a claim upon which relief can be granted. Failure to file an
amended complaint within the time specified by the court will result in the court
dismissing this action without further notice to Plaintiff.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall file an amended complaint by January 5, 2017, that states
a claim upon which relief may be granted. Failure to file an amended complaint
within the time specified by the court will result in the court dismissing this case
without further notice to Plaintiff.
2.
The clerk of the court is directed to set a pro se case management
deadline using the following text: January 5, 2017: check for amended complaint.
DATED this 5th day of December, 2016.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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