Phillips v. State of Nebraska et al

Filing 13

MEMORANDUM AND ORDER - Plaintiff's 42 U.S.C. § 1983 Eighth and Fourteenth Amendment claim for prospective injunctive relief against Defendant Dr. Deol in his official capacity may proceed to service of process. For service of process on Def endant Dr. Deol in his official capacity, the clerk of the court is directed to complete a summons form and a USM-285 form for such defendant using the address Office of the Nebraska Attorney General, 2115 State Capitol, Lincoln, NE 68509, and forwar d them together with a copy of the Complaint with its attachment (Filing Nos. 1 & 2 ), the Supplemental Complaint (Filing No. 12 ), this courts previous Memorandum and Order on initial review (Filing No. 10 ), and a copy of this Memorandum and O rder to the Marshals Service. The Marshals Service shall serve Defendant Dr. Deol at the office of the Nebraska Attorney General, 2115 State Capitol, Lincoln, NE 68509. See Federal Rule of Civil Procedure 4(j)(2); Neb. Rev. Stat. § 25-510 .02 (Reissue 2016). The United States Marshal shall serve all process in this case without prepayment of fees from Plaintiff. Federal Rule of Civil Procedure 4(m) requires service of the complaint on a defendant within 90 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. The clerk of the court is directed to set the following pro se case management deadline: April 13, 2018: check for completion of service of process. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JARROD D. PHILLIPS,
Plaintiff,
v.
DR. H. DEOL, Deputy Director of
Medical, Official capacity,
Defendant.

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8:17CV299

MEMORANDUM
AND ORDER

Pursuant to the court’s previous Memorandum and Order on initial review
(Filing No. 10), Plaintiff has filed a Supplemental Complaint (Filing No. 12) that
complies with the court’s order to allege facts which clarify “whether he is currently
being given his medication at TSCI; whether he has a serious, current, and ongoing
medical need within the meaning of the Eighth Amendment that requires overactivebladder medication; if Plaintiff has such a serious medical need, whether Dr. Deol
knows about it; and whether Dr. Deol is deliberately disregarding that need by failing
to order that Plaintiff be given his prescribed overactive-bladder medication.” (Filing
No. 10 at CM/ECF p. 10.)
Accordingly, Plaintiff’s 42 U.S.C. § 1983 Eighth and Fourteenth Amendment
claim for prospective injunctive relief against Defendant Dr. Deol alleging that Dr.
Deol, in his official capacity, is subjecting Plaintiff to cruel and unusual punishment
by being deliberately indifferent to his serious medical need for certain prescription
medication may proceed to service of process.1

1

Although the court finds that Plaintiff’s claims may proceed against Dr. Deol
in his official capacity, the court cautions him that this is only a preliminary
determination based on the allegations of the Complaint and Supplemental Complaint
and is not a determination of the merits of his claim or potential defenses thereto.

IT IS THEREFORE ORDERED that:
1.
Plaintiff’s 42 U.S.C. § 1983 Eighth and Fourteenth Amendment claim
for prospective injunctive relief against Defendant Dr. Deol in his official capacity
may proceed to service of process.
2.
For service of process on Defendant Dr. Deol in his official capacity, the
clerk of the court is directed to complete a summons form and a USM-285 form for
such defendant using the address “Office of the Nebraska Attorney General, 2115
State Capitol, Lincoln, NE 68509,” and forward them together with a copy of the
Complaint with its attachment (Filing Nos. 1 & 2), the Supplemental Complaint
(Filing No. 12), this court’s previous Memorandum and Order on initial review (Filing
No. 10), and a copy of this Memorandum and Order to the Marshals Service. The
Marshals Service shall serve Defendant Dr. Deol at the office of the Nebraska
Attorney General, 2115 State Capitol, Lincoln, NE 68509. See Federal Rule of
Civil Procedure 4(j)(2); Neb. Rev. Stat. § 25-510.02 (Reissue 2016).2
3.
The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.
2

Pro se litigants proceeding in forma pauperis are entitled to rely on service by
the United States Marshals Service. Wright v. First Student, Inc., 710 F.3d 782, 783
(8th Cir. 2013). Pursuant to 28 U.S.C. § 1915(d), in an in forma pauperis case, “[t]he
officers of the court shall issue and serve all process, and perform all duties in
such cases.” See Moore v. Jackson, 123 F.3d 1082, 1085 (8th Cir. 1997) (language
in § 1915(d) is compulsory). See, e.g., Beyer v. Pulaski County Jail, 589 Fed. Appx.
798 (8th Cir. 2014) (unpublished) (vacating district court order of dismissal for failure
to prosecute and directing district court to order the Marshal to seek defendant’s lastknown contact information where plaintiff contended that the Jail would have
information for defendant’s whereabouts); Graham v. Satkoski, 51 F.3d 710, 713 (7th
Cir. 1995) (when court instructs Marshal to serve papers for prisoner, prisoner need
furnish no more than information necessary to identify defendant; Marshal should be
able to ascertain defendant’s current address).
2

4.
Federal Rule of Civil Procedure 4(m) requires service of the complaint
on a defendant within 90 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.
5.
The clerk of the court is directed to set the following pro se case
management deadline: April 13, 2018: check for completion of service of process.
DATED this 13th day of December, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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