Strawder v. Rollins et al

Filing 20

MEMORANDUM AND ORDER - Defendant Lincoln Correctional Center Medical Clinic is dismissed from this action as not subject to suit under 42 U.S.C. § 1983. Plaintiff's claim for money damages against Defendants Rollins, the LCCWarden, Frakes, the NDCS Director, and Taylor in their official capacities is barred by the Eleventh Amendment and is dismissed. Plaintiff's § 1983 deliberate-indifference claim against Defendants LCC Warden, Frakes, NDCS Director, and Taylor in their indi vidual capacities is dismissed because Plaintiff has failed to state a claim upon which relief can be granted. Plaintiff's § 1983 deliberate-indifference claim against Defendants Rollins and Danaher in their individual capacities is dismiss ed for failure to state a claim upon which relief can be granted. Plaintiff's claim for injunctive relief against Defendants Rollins, the LCC Warden, Frakes, the NDCS Director, and Taylor in their official capacities is denied as moot. Plaintiff 's Motion for Leave to Supplement Complaint (Filing No. 18 ) is denied without prejudice to filing another lawsuit alleging the unrelated claim asserted therein. The Clerk of Court shall edit the caption appearing on the docket sheet for this case to be consistent with the caption appearing on this Memorandum and Order. Judgment shall be entered by separate document. 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
THOMAS DUANE STRAWDER,

)
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Plaintiff,
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v.
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APRIL ROLLINS, Nurse NDCS
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LCC, in her individual and official
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capacities; DAN DANAHER, Phys
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Assist NDCS, in his individual
)
capacity; LINCOLN CORR CNTR
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MEDICAL CLINIC; JOHN DOE
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WARDEN LCC, in his individual and )
official capacities; SCOTT R.
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FRAKES or Designee, in his
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individual and official capacities;
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DIRECTOR NDCS or Designee, in
)
his individual and official capacities; )
MS. R. TAYLOR, Unit Manager, in
)
her individual and official capacities, )
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Defendants.
)
)

8:18CV47

MEMORANDUM
AND ORDER

Plaintiff Thomas Duane Strawder, a pro se litigant now incarcerated at the
Lincoln Correctional Center (“LCC”), filed this 42 U.S.C. § 1983 action in which he
complains about what he views as substandard medical care. The court has granted
Plaintiff permission to proceed in forma pauperis, and the court now conducts an initial
review of the Complaint (Filing No. 1) and Supplement (Filing No. 6) to determine
whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.
I. SUMMARY OF COMPLAINT & SUPPLEMENT
Plaintiff brings this § 1983 suit for alleged violations of the Eighth and
Fourteenth Amendments due to the “Lack of community standard Health care” and the

Defendants’ failure to refer him to an “outside expert Dermatologist” for a sore on his
head that has bothered him since December 2017. (Filing No. 1 at CM/ECF p. 3.)
Plaintiff alleges that Defendant Rollins told him the sore was “an ingrown hair,” but
Plaintiff wonders if the sore is gangrene or melanoma, alleging that he has a family
history of cancer and that “[a] popular singer had cancer on his toe he died” (Filing No.
1 at CM/ECF p. 5.)
Plaintiff alleges that his “contageous [sic] sore” was treated with antibiotics two
times a day for 20 days in December 2017, and after no improvement was noted, he
had a biopsy of the area on January 16, 2018. The results of the biopsy showed that the
“sore” was benign. (Filing No. 1 at CM/ECF p. 5.) He was prescribed an “Rx cream,”
but it has not healed the sore, which is allegedly spreading. Plaintiff claims that his
“unknown disease disorder” is ongoing, he has yet to receive effective treatment, and
he needs a travel order to see a specialist. (Filing No. 1 at CM/ECF p. 5; Filing No. 6
at CM/ECF p. 18.) Plaintiff demands money damages and referral to an “expert
Dermatology clinic outside prison.” (Filing No. 1 at CM/ECF pp. 3, 5, 7; Filing No.
6 at CM/ECF p. 26.)1

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Without permission, Plaintiff filed a Supplement (Filing No. 6), which is a
rambling 30-page document that repeats his medical claim and generally
comments—with few coherent supporting facts—about the legal definition of insanity
and incompetence; a “system designed to irrebuttably [sic] presume you are guilty”;
the substandard “legal assistants” in the Nebraska prison system; the fact that he was
insane and incompetent and suffered from thyroid disease and “organic mental
disorders” when he killed someone in 1991; his wish to “fix our Judicial system”; his
apology for forgetting to include these allegations in his original Complaint; and his
opinion that qualified immunity “should not be permitted.” I have considered this
Supplement only to the extent it discusses his deliberate-indifference claim, which was
raised in his first Complaint. (Filing No. 6 at CM/ECF pp. 2, 7-8, 10, 12, 16-26.)
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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.
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).
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III. DISCUSSION
A. Defendant LCC
As an initial matter, Defendant Lincoln Correctional Center Medical Clinic must
be dismissed as an improper defendant in a § 1983 action. Kochel v. Slykhuis, No. CIV.
05-4027, 2005 WL 1240173, at *3 (D.S.D. May 24, 2005) (“Plaintiff’s complaint
against the ‘Prison Health Services’ should be dismissed with prejudice for failure to
state a claim upon which relief can be granted.”); see also Smith v. Harness, No.
4:14CV00753, 2017 WL 243985, at *3 (E.D. Ark. Jan. 19, 2017) (“The Jacksonville
Police Department is not an entity capable of being sued and therefore could be
dismissed on that basis.”); Caldwell v. Dub Brassell Det. Ctr., No. 5:15CV352, 2015
WL 9855535, at *2 (E.D. Ark. Dec. 21, 2015), report and recommendation adopted,
No. 5:15CV352, 2016 WL 233663 (E.D. Ark. Jan. 19, 2016) (“the sole
Defendant—the Jail—is not considered a ‘person’ within the meaning of 42 U.S.C. §
1983, and cannot be sued”).
B. Defendants in Official Capacities/Sovereign Immunity
Plaintiff’s claims for monetary relief against Defendants Rollins, the LCC
Warden, Frakes, the NDCS2 Director, and Taylor in their official capacities are barred
by Eleventh Amendment sovereign immunity. Further, Plaintiff cannot sue the state
or state officials in their official capacities for money damages under § 1983 because
such suits are really suits against the state, and the state is not a “person” who can be
sued under § 1983. Kruger v. Nebraska, 820 F.3d 295, 301 (8th Cir. 2016); 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); Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir. 2007)

2

The NDCS is the Nebraska Department of Correctional Services.
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(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).
However, state officials are “persons” under § 1983 when sued for injunctive
relief because such actions are not treated as actions against the state. Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989) (citing Kentucky v. Graham, 473
U.S. 159, 167 n.14 (1985)). Accordingly, Plaintiff’s claims for injunctive relief need
not be dismissed as barred by the Eleventh Amendment.
C. Defendants LCC Warden, Frakes, NDCS Director & Taylor
Plaintiff appears to be attempting to hold Defendants LCC Warden, Frakes,
NDCS Director, and Taylor liable for alleged misconduct by their subordinates.3
However, such a claim is not actionable under 42 U.S.C. § 1983 because governmental
officials and entities cannot be held liable under the doctrine of respondeat superior in
civil rights cases—that is, these Defendants cannot be held liable simply because they
hold supervisory positions. Monell v. Department of Social Services, 436 U.S. 658, 694
(1978). See also Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th
Cir. 1995) (“[t]he general responsibility of a warden for supervising the operation of
a prison is not sufficient to establish personal liability” in a civil rights action).
Rather, “[l]iability under section 1983 requires a causal link to, and direct
responsibility for, the deprivation of rights. To establish personal liability of the
supervisory defendants, [the plaintiff] must allege specific facts of personal
involvement in, or direct responsibility for, a deprivation of his constitutional rights.”
Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007) (internal quotations

3

Plaintiff’s Supplement specifically states that Defendant Danaher and Rollins’s
“Superiors . . . have not seen Plaintiff” and refers only to the “Poor Quality of Care
Provided by April Rollins and Dan Danaher.” (Filing No. 6 at CM/ECF pp. 25-26.)
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omitted); see also Brown v. Cowell, No. 1:12-CV-87, 2012 WL 6005457, at *2 (E.D.
Ark. Oct. 11, 2012), report and recommendation adopted, No. 1:12CV87, 2012 WL
6005385 (E.D. Ark. Nov. 30, 2012) (“Claims of medical indifference should be filed
against the individuals directly responsible for the inmate’s medical care, and not
prison administrators.”) (citing Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997));
LeMasters v. Fabian, No. CIV. 09-702, 2009 WL 1405176, at *2 (D. Minn. May 18,
2009) (“To state an actionable civil rights claim against a government official or entity,
a complaint must include specific factual allegations showing how that particular
party’s own personal acts or omissions directly caused a violation of the plaintiff’s
constitutional rights.”) (citing Ellis v. Norris, 179 F.3d 1078, 1079 (8th Cir. 1999)).
Because Plaintiff’s Complaints do not include factual allegations regarding his
deliberate-indifference claim against Defendants LCC Warden, Frakes, NDCS
Director, and Taylor, he has failed to state an actionable § 1983 claim against them.
Further, Plaintiff’s claim for injunctive relief against Defendants Rollins, the LCC
Warden, Frakes, the NDCS Director, and Taylor in their official capacities will be
dismissed because Plaintiff has failed to successfully allege a constitutional violation
against these Defendants, necessarily making Plaintiff’s request for injunctive relief
against them moot.
D. Deliberate Indifference to Serious Medical Needs
Plaintiff’s only remaining claim is brought under the Eighth and Fourteenth
Amendments pursuant to § 1983. As described above, Plaintiff alleges that Defendants
Rollins and Danaher, in their individual capacities, were deliberately indifferent to his
serious medical needs when they failed to refer him to an “outside expert
Dermatologist” to treat a sore on his head that has bothered him since December 2017.
(Filing No. 1 at CM/ECF p. 3.)
The constitutional obligation to provide medical care to those in custody may
be violated when officials “intentionally deny[ ] or delay[ ] access to medical care or
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intentionally interfer[e] with the treatment once prescribed.” Estelle v. Gamble, 429
U.S. 97, 104-05 (1976); see also Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010)
(“[D]elays in treating painful medical conditions, even if not life-threatening, may
support an Eighth Amendment claim.” (quotations omitted)); Phillips v. Jasper Cty.
Jail, 437 F.3d 791, 796 (8th Cir. 2006) (“the knowing failure to administer prescribed
medicine can itself constitute deliberate indifference”).
To prevail on this claim, Plaintiff must prove that the Defendants acted with
deliberate indifference to his serious medical needs. See Estelle, 429 U.S. at 106. 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)); Gibson v. Weber, 433 F.3d 642, 646
(8th Cir. 2006) (Eighth Amendment claim based on inadequate medical attention
requires proof that officials knew about excessive risks to inmate’s health but
disregarded them and that their unconstitutional actions in fact caused inmate’s
injuries).
For deliberate indifference to reach the level of a constitutional violation, the
prisoner must show more than negligence and gross negligence, and must not simply
disagree with treatment decisions. 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 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).
Here, Plaintiff alleges that Rollins and Danaher promptly examined Plaintiff’s
sore, prescribed antibiotics for it, performed a biopsy on it (which was negative), and
then prescribed a cream for it. However, Plaintiff claims the sore is “spreading” and
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Rollins and Danaher have not directed that Plaintiff receive treatment from a
dermatologist outside the LCC. If anything, Plaintiff has alleged only negligence and
his disagreement with Rollins’s and Danaher’s treatment decisions. This does not state
a claim for deliberate indifference under the Eighth Amendment. Bender, 385 F.3d at
1137.
E. Conclusion
Plaintiff’s Complaint (Filing No. 1) and Supplement (Filing No. 6) will be
dismissed. Plaintiff will not be given leave to amend his Complaint because he had the
opportunity to fully describe his claim in both a Complaint and an unsolicited
Supplement and because such an amendment would be futile. Cornelia I. Crowell GST
Tr. v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir. 2008) (“when the court denies
leave [to amend the complaint] on the basis of futility, it means the district court has
reached the legal conclusion that the amended complaint could not withstand a motion
to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure”); U.S. ex rel.
Lee v. Fairview Health Sys., 413 F.3d 748, 749 (8th Cir. 2005) (“plaintiffs do not have
an absolute or automatic right to amend”); Hammer v. City of Osage Beach, 318 F.3d
832, 844 (8th Cir. 2003) (leave to amend should be denied for, among other things,
futility of amendment; denial of leave to amend complaint reviewed for abuse of
discretion).
Further, Plaintiff’s Motion for Leave to Supplement Complaint (Filing No.
18)—which demands that Defendant Danaher be fired for failure to warn Plaintiff of
a scheduled PET scan, which in turn delayed Plaintiff’s chemotherapy—will be denied
without prejudice to filing another lawsuit alleging this unrelated claim. Accordingly,
IT IS ORDERED:
1.
Defendant Lincoln Correctional Center Medical Clinic is dismissed from
this action as not subject to suit under 42 U.S.C. § 1983.
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2.
Plaintiff’s claim for money damages against Defendants Rollins, the LCC
Warden, Frakes, the NDCS Director, and Taylor in their official capacities is barred
by the Eleventh Amendment and is dismissed.
3.
Plaintiff’s § 1983 deliberate-indifference claim against Defendants LCC
Warden, Frakes, NDCS Director, and Taylor in their individual capacities is dismissed
because Plaintiff has failed to state a claim upon which relief can be granted.
4.
Plaintiff’s § 1983 deliberate-indifference claim against Defendants
Rollins and Danaher in their individual capacities is dismissed for failure to state a
claim upon which relief can be granted.
5.
Plaintiff’s claim for injunctive relief against Defendants Rollins, the LCC
Warden, Frakes, the NDCS Director, and Taylor in their official capacities is denied
as moot.
6.
Plaintiff’s Motion for Leave to Supplement Complaint (Filing No. 18) is
denied without prejudice to filing another lawsuit alleging the unrelated claim asserted
therein.
7.
The Clerk of Court shall edit the caption appearing on the docket sheet
for this case to be consistent with the caption appearing on this Memorandum and
Order.
8.

Judgment shall be entered by separate document.

DATED this 11th day of July, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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