Mixon v. Omaha Police Department Officers et al

Filing 45

MEMORANDUM AND ORDER - Plaintiff must take reasonable steps to identify the individual DCDC medical employees against whom he wishes to proceed and notify the court of their names, after which the court will initiate service of process. If Plaintiff is unable to ascertain the individual DCDC medical employees names, then he should inform the court of such and identify what steps he took to try and learn their names. Plaintiff will have 30 days from the date of this Memorandum and Order to tak e reasonable steps to identify the individual DCDC medical employees and notify the court of their names or his efforts to ascertain their names, after which the court will initiate service of process. Failure to do so will result in dismissal of his claims without prejudice and without further notice. The clerk of the court is directed to set the following pro se case management deadline: February 3, 2020: check for names of individual defendants. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MATTHEW O. MIXON,
Plaintiff,

8:17CV325

vs.
DOUGLAS COUNTY DEPT. OF
CORRECTIONS, MEDICAL
DEPARTMENT EMPLOYEES,
DOUGLAS COUNTY NEBRASKA, all
as Defendants; MARK FOXALL,
Director; DOCTOR ASH, CORRECT
CARE SOLUTIONS, and DOUGLAS
COUNTY DEPT. OF CORRECTIONS,
MEDICAL CARE,

MEMORANDUM
AND ORDER

Defendants.
This matter is before the court upon review of Plaintiff’s Second Amended
Complaint (filing no. 44) to determine whether summary dismissal is appropriate
under 28 U.S.C. §§ 1915(e) and 1915A.
I. BACKGROUND
Plaintiff, an inmate currently in the custody of the Nebraska Department of
Correctional Services (“NDCS”), originally filed this action on September 6, 2017,
seeking damages for alleged injuries and rights violations relating to his 2015
arrest, conviction, and incarceration in the Douglas County Department of
Corrections (“DCDC”). Upon initial review, the court dismissed Plaintiff’s claims
arising out of his arrest and criminal prosecution against several defendants but
permitted Plaintiff to file an amended complaint with respect to his Eighth

Amendment deliberate indifference claim against Douglas County and/or specific
DCDC medical employees. (See Filing No. 35.)
Plaintiff filed his First Amended Complaint on November 26, 2018, and
named the Douglas County Correctional Center, DCDC Director Mark Foxall,
Correct Care Solutions, Dr. Ash, and DCDC Medical Department Employees as
defendants in their official and individual capacities. (Filing No. 36.) Upon review,
the court dismissed Plaintiff’s claims against the Douglas County Correctional
Center or DCDC as it is a non-suable entity. The court also dismissed Plaintiff’s
claims against Defendants in their official capacities and against Foxall and Dr.
Ash in their individual capacities for failure to state a claim. However, the court
determined that Plaintiff’s allegations that the unspecified DCDC medical
employees failed to provide him his necessary seizure medication resulting in
injuries to Plaintiff stated a plausible claim of deliberate indifference to Plaintiff’s
medical needs under the Eighth and Fourteenth Amendments against the DCDC
medical employees in their individual capacities. Because Plaintiff failed to
provide “any identifying information about specific DCDC medical employees
who he alleges were deliberately indifferent to his medical needs as directed by the
court in its Memorandum and Order on initial review,” the court gave Plaintiff
leave to file a second amended complaint against specific, named defendants.
(Filing No. 42 at CM/ECF p. 9 (internal quotation omitted).) In particular, the court
advised Plaintiff:
2.
. . . . In his second amended complaint, Plaintiff must
identify each defendant by name and set forth all of Plaintiff’s
claims (and any supporting factual allegations) against that
defendant. Plaintiff should be mindful to explain in his second
amended complaint what each defendant did to him, when the
defendant did it, and how the defendant’s actions harmed him.
3.
In the event that Plaintiff files a second amended
complaint, Plaintiff shall restate the allegations of the Amended
Complaint (filing no. 36) and any new allegations. Failure to
consolidate all claims into one document may result in the
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abandonment of claims. Plaintiff is warned that a second amended
complaint will supersede, not supplement, his prior pleadings.
(Filing No. 42 at CM/ECF p. 10.)
Plaintiff filed his Second Amended Complaint on June 5, 2019. (Filing No.
44.)
II. SUMMARY OF SECOND AMENDED COMPLAINT
Plaintiff’s Second Amended Complaint names the “Douglas County
Department of Corrections, Medical Care” (hereinafter “DCDC Medical Care”) as
the sole defendant in its individual capacity. (Filing No. 44 at CM/ECF p. 2.) As
alleged by Plaintiff, the facts underlying his claim are as follows:
I was not given the proper medical attention. The Defendant[’s]
failur[e] to provide reasonable and humane medical treatment
constitutes a violation of the Plaintiff’s right to due process under the
Fourteenth Amendment and his right under the Eight[h] Amendment
to be free from cruel and unusual punishment by not giving Plaintiff
his medication for over 30 days from 11-21-2015 to 12-25-2015 no
seizure medication Vimpat 400 mg tabs a day.
....
I black-out. I was finally sent to medical and was s[e]en, but
was not given the medication I need which was never presc[r]ibe to
me once I run out, was sent back to the unit and I fell out again and
that time I cut my face from hitting it on the conc[rete] floor and had a
con[cu]ssion and given a ice pack and my medication and never had
another seizure as long as I have my medic[a]tion. I have real bad
headac[h]es and this is som[e]thing new to me cause I was fine
befor[e] going to the county.
(Id. at CM/ECF p. 5 (punctuation and capitalization corrected).)
Plaintiff attached a two-page “letter” to his Second Amended Complaint
addressed “[t]o Clerk pursuant to the Nebraska Political Subdivision Tort Claim
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Act” and setting forth his “tort claim against the City of Omaha Douglas County
Nebraska.” (Id. at CM/ECF p. 12.) The letter restates the facts recounted above and
concludes: “As a result of the Defendants’ negligence and unconstituti[o]nal denial
of medicare [sic] the Plaintiff suffers with severe symptoms and endured severe
pain, discomfort, and emotional distress.” (Id. at CM/ECF p. 13 (capitalization
corrected).)
As relief, Plaintiff seeks $2,000,000.00 in damages and sanctions against all
Defendants. (Id. at CM/ECF p. 5.)
III. DISCUSSION
Plaintiff names the DCDC Medical Care as the sole Defendant and wrote
“N/A, Records” in the space provided for “Defendant No. 1 Name” in the form
complaint. (Filing No. 44 at CM/ECF p. 2.) The DCDC Medical Care is a division
or unit of the DCDC. As the court has previously explained, the DCDC or units
within the DCDC is not a distinct legal entity subject to suit. See Dan v. Douglas
Cty. Dep’t of Corr., No. 8:06CV714, 2009 WL 483837, at *4 (D. Neb. Feb. 25,
2009) (“the Department of Corrections and other units within the DCCC and
Douglas County lack the legal capacity to sue or be sued in their own names”); see
also Ketchum v. City of West Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992)
(departments or subdivisions of local government are “not juridical entities suable
as such”); Marsden v. Fed. Bureau of Prisons, 856 F.Supp. 832, 836 (S. D. N. Y.
1994) (jails are not entities amenable to suit). Thus, Plaintiff’s Second Amended
Complaint cannot proceed against a non-suable entity.
Liberally construed, Plaintiff’s Second Amended Complaint could be
understood as being brought against the employees of the DCDC medical
department in their individual capacities whose names Plaintiff alleges exist in the
DCDC records. (See Filing No. 44 at CM/ECF p. 2.) As with the Amended
Complaint, the court concludes that the Second Amended Complaint states a
plausible claim of deliberate indifference to Plaintiff’s medical needs under the
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Eighth and Fourteenth Amendments against the DCDC medical employees in their
individual capacities. See Dadd v. Anoka Cty., 827 F.3d 749, 756–57 (8th Cir.
2016) (“When an official denies a person treatment that has been ordered or
medication that has been prescribed, constitutional liability may follow.”); Phillips
v. Jasper Cty. Jail, 437 F.3d 791, 796 (8th Cir. 2006) (“[T]he knowing failure to
administer prescribed medicine can itself constitute deliberate indifference.”). The
court cautions Plaintiff that this is only a preliminary determination based on the
allegations found within the Second Amended Complaint. This is not a
determination of the merits of his claims or potential defenses to them.
While the Second Amended Complaint states a plausible claim for relief,
this matter cannot proceed to service of process against unknown and unidentified
defendants. As a litigant proceeding in forma pauperis in this case, Plaintiff is
entitled to have service of process performed by the United States Marshals, but
the United States Marshal’s Service cannot initiate service upon unknown
defendants. Plaintiff has failed to make any attempt to identify the specific
individuals involved in his allegedly deficient medical care nor does Plaintiff
allege that he made any attempts to ascertain the names of the medical employees
involved or that such attempts were unsuccessful. Therefore, the court will give
Plaintiff 30 days in which to take reasonable steps to identify the individual DCDC
medical employees and notify the court of their names, after which the court will
initiate service of process. If Plaintiff is unable to ascertain the individual DCDC
medical employees’ names, then he should inform the court of such and identify
what steps he took to try and learn their names.1 Failure to act in accordance with
this Memorandum and Order will result in dismissal of Plaintiff’s claims without
prejudice and without further notice.

See Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985) (“Dismissal is proper
only when it appears that the true identity of the defendant cannot be learned through
discovery or the court’s intervention.”) (citation omitted).
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IT IS THEREFORE ORDERED that:
1.
Plaintiff must take reasonable steps to identify the individual DCDC
medical employees against whom he wishes to proceed and notify the court of their
names, after which the court will initiate service of process. If Plaintiff is unable to
ascertain the individual DCDC medical employees’ names, then he should inform
the court of such and identify what steps he took to try and learn their names.
Plaintiff will have 30 days from the date of this Memorandum and Order to
take reasonable steps to identify the individual DCDC medical employees and
notify the court of their names or his efforts to ascertain their names, after
which the court will initiate service of process. Failure to do so will result in
dismissal of his claims without prejudice and without further notice.
2.
The clerk of the court is directed to set the following pro se case
management deadline: February 3, 2020: check for names of individual
defendants.
Dated this 2nd day of January, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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