Heckard v. Foxhall et al

Filing 10

MEMORANDUM AND ORDER: Plaintiff's state-law claim based on the Nebraska Correctional Health Care Services Act, Neb. Rev. Stat. §§ 83-4,153 to 83-4,165 (Westlaw 2020), is dismissed for failure to state a claim upon which relief may b e granted. Plaintiff shall have 30 days to file an amended complaint that sets forth a viable claim for deliberate indifference to a serious medical need against named defendants who were personally involved with the decisions affecting Plaintiff& #039;s medical care, or the lack thereof. 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. In the event Plaintiff files an amended compla int, Plaintiff shall restate the allegations of the Complaint (Filing 1) and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. The Clerk of the Court is directed to set a pro se case management deadline using the following text: November 16, 2020amended complaint due. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (ADB)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES HECKARD, JR.,
Plaintiff,

8:20CV143

vs.
MARK FOXHALL and STAFF IN
MEDICAL DEPARTMENT, Located at
1701 Douglas County Corrections;

MEMORANDUM
AND ORDER

Defendants.

Plaintiff Charles Heckard, Jr., is currently incarcerated at the Nebraska State
Penitentiary, but brings this 42 U.S.C. § 1983 and state-law action because of events
that occurred when he was confined in the Douglas County Correctional Center
(“DCCC”). The court has granted Plaintiff permission to proceed in forma pauperis
(Filing 9), and the court now conducts an initial review of the Complaint (Filing 1)
to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)
and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff’s 42 U.S.C. § 1983 claim alleges that while he was incarcerated at
the DCCC, he was given “[m]edication . . . appropriate for [his] medical condition,
[but it] did not work!” (Filing 1 at CM/ECF p. 3.) Specifically, after he complained
about inflammation of his feet caused by gout, he was not seen by medical personnel
for seven days, at which time they only offered him Tylenol. (Id. at CM/ECF p. 5.)
Plaintiff then filed a grievance, and after “sometime of compla[ining] from the
pains,” he finally saw a physician, who gave Plaintiff the “wrong meds,” which gave
Plaintiff diarrhea and caused him to vomit. He claims his “issues never got fix[ed],”
they became worse as time passed, and he now suffers from nerve damage because

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he was not treated appropriately. (Id.) Plaintiff has attached to his Complaint several
inmate grievance and request forms (from both the DCCC and the Nebraska
Department of Correctional Services (“NDCS”)) complaining about his gout. The
DCCC grievance and request forms are dated from September 22, 2017, to
December 13, 2017 (Id. at CM/ECF pp. 8-15), and the NDCS inmate interview
request forms are dated from January 7, 2018, to March 6, 2020. (Filing 1-1 at
CM/ECF pp. 1-8.)
Besides his section 1983 claim for deliberate indifference to his serious
medical needs, Plaintiff asserts that Defendants violated Neb. Rev. Stat. §§ 834,162(1)-(3) and 83-4,160—part of the Nebraska Correctional Health Care Services
Act, Neb. Rev. Stat. §§ 83-4,153 to 83-4,165 (Westlaw 2020)—by not providing
him with the “community standard of care.” (Id. at CM/ECF pp. 4-5.) Plaintiff
requests $134,000 in damages for his pain and suffering. (Id. at CM/ECF p. 6.)
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.”).

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“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).
III. DISCUSSION
A. Defendants
Plaintiff first names Mark Foxall as a Defendant without identifying him, his
position, or describing any actions he took that violated Plaintiff’s constitutional
rights.1 “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.” Banks v. New York Police Dep’t, No. 4:15CV3012, 2015
WL 1470475, at *2 (D. Neb. Mar. 31, 2015); see also Krych v. Hvass, 83 Fed. App’x
854, 855 (8th Cir. 2003) (unpublished) (citing Potter v. Clark, 497 F.2d 1206, 1207 (7th
Cir. 1974) (holding that court properly dismissed pro se complaint where complaint did
not allege that defendant committed specific act and complaint was silent as to
defendant except for his name appearing in caption)).

1

It appears that Foxall may have been the warden or director at the DCCC at
the relevant time, but he has since retired and is currently working at the University
of Nebraska-Omaha. However, Plaintiff makes no such allegations. See Douglas
County Board votes to hire new corrections director to succeed Mark Foxall, Omaha
World-Herald (Oct. 2, 2018) (E-Version); University of Nebraska-Omaha, School
of Criminology and Criminal Justice, Faculty Listing for Mark Foxall (noting
Foxall’s retirement from Douglas County Department of Corrections in 2018).
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I shall grant Plaintiff leave to amend his Complaint to identify Foxall, his
position, and the specific actions he took that violated Plaintiff’s constitutional rights.
Plaintiff should note that Foxall cannot be liable simply by virtue of supervising the
medical staff because “it is well settled that § 1983 does not impose respondeat
superior liability.” Hughes v. Stottlemyre, 454 F.3d 791, 798 (8th Cir. 2006) (internal
quotation marks and citation omitted). Rather, to state a § 1983 claim, the plaintiff
must allege that the defendant was personally involved in or had direct responsibility
for incidents that resulted in injury. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
(because there is no vicarious liability in § 1983 actions, a prisoner “must plead that
each Government-official defendant, through the official’s own individual actions,
has violated the Constitution”); Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir.
1985). “Supervisors can, however, ‘incur liability . . . for their personal involvement
in a constitutional violation, or when their corrective inaction amounts to deliberate
indifference to or tacit authorization of violative practices.’” Langford v. Norris, 614
F.3d 445, 460 (8th Cir. 2010) (quoting Choate v. Lockhart, 7 F.3d 1370, 1376 (8th
Cir. 1993)).
Next, Plaintiff includes as Defendants “Staff in Medical Department” at the
DCCC. Although a complaint must include the names of all the parties, see Fed. R.
Civ. P. 10(a), “an action may proceed against a party whose name is unknown if the
complaint makes allegations specific enough to permit the identity of the party to be
ascertained after reasonable discovery.” Estate of Rosenberg by Rosenberg v.
Crandell, 56 F.3d 35, 37 (8th Cir. 1995). “Dismissal is proper only when it appears
that the true identity of the defendant cannot be learned through discovery or the
court’s intervention.”2 Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985); see

“It is a general principle of tort law that a tort victim who cannot identify the
tortfeasor cannot bring suit. See Billman v. Indiana Dep’t of Corrections, 56 F.3d
785, 789 (7th Cir. 1995) (Posner, C.J.). This rule has been relaxed, however, in
actions brought by pro se litigants. Id. In a number of cases analogous to that at bar,
appellate courts have found error in a trial court’s refusal to assist a pro se plaintiff
in identifying a defendant. This is particularly so where the plaintiff is incarcerated,
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Majors v. Baldwin, 456 F. App’x 616, 617 (8th Cir. 2012) (per curiam; unpublished)
(remanding for further consideration the pre-service dismissal of claims against
unnamed defendants who it appeared could be identified); Wheat v. Schriro, 80 F.
App’x 531, 534 (8th Cir. 2003) (per curiam; unpublished) (reversing dismissal of
retaliation claim against unidentified third-shift corrections staff where “there is no
reason to believe that on remand their identities could not be discovered”).
Because it seems possible for the Plaintiff to identify the medical staff who
allegedly failed to render proper medical care by looking at institutional medical
records and copies of grievances, I shall grant Plaintiff leave to identify such
defendants by name in an amended complaint.
B. Claim Under Nebraska Correctional Health Care Services Act
Plaintiff purports to bring a claim under the Nebraska Correctional Health
Care Services Act, Neb. Rev. Stat. §§ 83-4,153 to 83-4,165 (Westlaw 2020), which
requires the NDCS to “provide a community standard of health care to all inmates”
by appointing a medical director; implementing a “credentialing” process for each
healthcare staff member; meeting staffing and clinic-availability requirements;
implementing, reviewing, and documenting medical treatment protocols; developing
a quality-assurance program; and getting accredited. Neb. Rev. Stat. §§ 83-4,155 to
83-4,165.
However, I find no statutory language, legislative history, or case law stating
that the Nebraska Correctional Health Care Services Act creates a private cause of
action. Ditter v. Nebraska Dep’t of Corr. Servs., No. 4:16CV3159, 2017 WL
401821, at *6 (D. Neb. Jan. 30, 2017) (dismissing inmate’s state-law claim under
Nebraska Correctional Health Care Services Act for failure to state claim upon
which relief can be granted); Brown v. Nebraska Dep't of Corr. Servs., No.
and is thus unable to carry out a full pre-trial investigation.” Valentin v. Dinkins, 121
F.3d 72, 75 (2d Cir. 1997).
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8:16CV217, 2016 WL 5173232, at *7 (D. Neb. Sept. 21, 2016) (same); Stonacek v.
City of Lincoln, 782 N.W.2d 900, 909 (Neb. 2010) (“where the Legislature has not
by its express terms or by implication provided for civil tort liability, under
principles of judicial restraint, it is prudent that we not do so”; the Legislature’s
purpose in enacting a statute is central to determining whether statute creates private
civil liability); Prof’l Mgmt. Midwest, Inc. v. Lund Co., 826 N.W.2d 225, 233 (Neb.
2012) (“Whether a statute creates a private right of action depends on the statute’s
purpose and whether the Legislature intended to create a private right of action.”);
Nebraska Statement of Intent, 2001 Regular Session, Legislative Bill 154, NE Intent
Stat., 2001 Reg. Sess. L.B. 154 (Jan. 24, 2001) (no mention of purpose to provide
private cause of action); Nebraska Committee Statement, 2001 Regular Session,
Legislative Bill 154, NE Comm. Stat., 2001 Reg. Sess. L.B. 154 (Jan. 24, 2001)
(same).
Therefore, Plaintiff’s state-law claim based on the Nebraska Correctional
Health Care Services Act must be dismissed for failure to state a claim upon which
relief may be granted.
C. Deliberate-Indifference Claim
Should Plaintiff choose to file an amended complaint, he should be aware of
the elements of the cause of action he seeks to assert. 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 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.”) (internal quotation marks and citation omitted).3
3

It is unclear whether Plaintiff was a pretrial detainee at the time Defendants
were allegedly deliberately indifferent to his serious medical needs. A convicted
prisoner’s conditions of confinement are subject to scrutiny under the Eighth
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To prevail on his medical-care claim, Plaintiff must prove that the Defendants
acted with deliberate indifference to his serious medical needs. See Estelle v.
Gamble, 429 U.S. 97, 106 (1976). 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)).
“A serious medical need is one that has been diagnosed by a physician as
requiring treatment, or one that is so obvious that even a layperson would easily
recognize the necessity for a doctor’s attention.” Schaub v. VonWald, 638 F.3d 905,
914 (8th Cir. 2011) (internal quotation marks and citations omitted). “For a claim of
deliberate indifference, the prisoner must show more than negligence, more even
than gross negligence, and mere disagreement with treatment decisions does not
reach the level of a constitutional violation. 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) (internal quotation
marks and citation omitted). 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).

Amendment, while a pretrial detainee’s challenge to such conditions is analyzed
under the Fourteenth Amendment’s Due Process Clause. “This makes little
difference as a practical matter, though: Pretrial detainees are entitled to the same
protection under the Fourteenth Amendment as imprisoned convicts receive under
the Eighth Amendment.” Davis v. Oregon County, 607 F.3d 543, 548 (8th Cir. 2010)
(internal quotation marks and citation omitted). Therefore, cases discussing the
Eighth Amendment are applicable to this case, even if Plaintiff was a pretrial
detainee during the events at issue.
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IV. CONCLUSION
In its present form, Plaintiff’s Complaint fails to state a claim upon which
relief can be granted against any of the Defendants. Plaintiff has failed to identify
Foxall, his position, and the specific actions he took that allegedly violated Plaintiff’s
constitutional rights. Further, Plaintiff’s claims against unspecified DCCC medical
employees cannot proceed so long as such Defendants remain unknown and
unidentified.
On the court’s own motion, Plaintiff shall have 30 days from the date of this
Memorandum and Order to file an amended complaint that sufficiently states his
claim for deliberate indifference to a serious medical need against named defendants.
The amended complaint must specify in what capacity the defendants are sued, must
identify each defendant by name, and must set forth all of Plaintiff’s claims (and any
supporting factual allegations) against each defendant. To be clear, Plaintiff’s
amended complaint must restate the relevant allegations of his Complaint (Filing 1)
and any new allegations. Plaintiff should be mindful to explain what each defendant
did to him, when the defendant did it, and how the defendant’s actions harmed him.
Plaintiff is warned that any amended complaint he files will supersede, not
supplement, his prior pleadings—that is, Plaintiff’s allegations should all appear in
one document entitled “Amended Complaint.”
If Plaintiff fails to file an amended complaint in accordance with this
Memorandum and Order, this action will be dismissed without prejudice and without
further notice. The court reserves the right to conduct further review of Plaintiff’s
claims pursuant to 28 U.S.C. §§ 1915(e) and 1915A after he addresses the matters
set forth in this Memorandum and Order.
IT IS THEREFORE ORDERED:
1.
Plaintiff’s state-law claim based on the Nebraska Correctional Health
Care Services Act, Neb. Rev. Stat. §§ 83-4,153 to 83-4,165 (Westlaw 2020), is
dismissed for failure to state a claim upon which relief may be granted.
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2.
Plaintiff shall have 30 days to file an amended complaint that sets forth
a viable claim for deliberate indifference to a serious medical need against named
defendants who were personally involved with the decisions affecting Plaintiff’s
medical care, or the lack thereof. 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. In his 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 amended
complaint what each defendant did to him, when each defendant did it, and how each
defendant’s actions harmed him.
3.
In the event Plaintiff files an amended complaint, Plaintiff shall restate
the allegations of the Complaint (Filing 1) and any new allegations. Failure to
consolidate all claims into one document may result in the abandonment of claims.
Plaintiff is warned that an amended complaint will supersede, not supplement, his
prior pleadings.
4.
The court reserves the right to conduct further review of Plaintiff’s
claims pursuant to 28 U.S.C. §§ 1915(e) and 1915A in the event he files an amended
complaint.
5.
The Clerk of the Court is directed to set a pro se case management
deadline using the following text: November 16, 2020—amended complaint due.
DATED this 15th day of October, 2020.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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