Corman v. Schweitzer et al

Filing 37

ORDER ADOPTING 33 REPORT AND RECOMMENDATIONS by Chief Judge Ralph R. Erickson.(SH)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
Ryan Ray Corman,
Plaintiff,

Case No. 3:14-cv-33

-vsORDER ADOPTING REPORT AND
RECOMMENDATION

Alex Schweitzer, NDSH Superintendent,
Kerry Wicks, NDSH Secure Services
‘Program Director,’ now retired, Larry
Culp, NDSH Secure Services Unit
Coordinator, NDSH Clinical Team,
From . . . Aug[. 30, 20]12 to . . . Jan[. 16,
20]15, inclusive, Dr. Ernster, NDSH
Physician, Nurse ‘Sheila,’ NDSH Secure
Services RN, and Randy Perkins, NDSH
Secure Services Nurse Practitioner,
Defendants.

Pursuant to 28 U.S.C. § 636, the court has received a Report and Recommendation
from the Honorable Alice R. Senechal, United States Magistrate Judge.1 The Report and
Recommendation recommends that Corman’s claims against the “NDSH Clinical Team”
and the individual defendants named in their official capacities be dismissed with
prejudice; that Corman’s claims against Nurse Sheila be dismissed without prejudice; that
Corman’s claims seeking the recovery of property be dismissed without prejudice; and that
Corman be allowed to pursue his claim for deliberate indifference to his serious medical
needs against Defendants Alex Schweitzer, Kerry Wicks, Larry Culp, Travis Bullock, Randy
Switters, Randy Perkins, and Dr. Ernster in their personal capacities. Corman has filed
objections to the Report and Recommendation.2

1

Doc. #33

2

Doc. #36.

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Corman reiterates in his objection that he has not alleged a claim of due process in
this action because that claim is a primary component of another case in which he is
involved. His objections pertain to the magistrate judge’s recommendation not to provide
counsel or allow him to investigate the identities of all members of the “NDSH Clinical
Team” as well as the recovery of his “property.” The court has considered Corman’s
objections and finds that they do not change the findings and conclusions of the magistrate
judge.
The NDSH Clinical Team is not a person for purposes of an action under 42 U.S.C.
§ 1983. Corman’s claims against the NDSH Clinical Team are dismissed with prejudice.
In addition, because the claims against the defendants in their official capacities are
construed as claims against the State of North Dakota for which the State has immunity
from suits for damages in federal court, Corman’s official capacity claims are dismissed
with prejudice.
Corman requests an investigation or the assistance of the counsel to discover all the
individuals that might have been involved in his medical care. In order to have a cognizable
claim, Corman must establish that the individual actually was aware of Corman’s medical
need and deliberately disregarded his need.3 In other words, Corman must show personal
involvement. The court finds that Corman’s request for an investigation is merely a fishing
expedition. He has alleged the involvement of a number of individuals and there is no
reason to believe that other unknown individuals were involved in the alleged deprivation
of his medical needs.
Lastly, Corman asserts he is entitled to pursue his claim for the recovery of property.
The property in question includes a set of expandable file folders containing legal research

3

Allard v. Baldwin, 779 F.3d 768, 771 (8th Cir. 2015).

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and “documentary evidence of which no copies are known to exist.” He has not identified
what damages flow from the alleged missing property, or any injury he has suffered.
Moreover, he has noted that his previous lawyer, Richard Henderson, was told that no such
file exists.

Although Corman has not alleged a cognizable claim, the defendants are

ordered to undertake a search to locate the missing property and return it to Corman if it
is found.
After considering the magistrate judge’s Report and Recommendation, reviewing the
record, and analyzing Corman’s objections, the court finds the magistrate judge’s analysis
of the claims and recommendations are appropriate. Accordingly, the court hereby adopts
the Report and Recommendation in its entirety.
For the foregoing reasons, it is hereby ORDERED that
(1)

Corman’s claims against the “NDSH Clinical Team” and the individual
defendants named in their official capacities are dismissed with prejudice;

(2)

Corman’s claims against Nurse Sheila are dismissed without prejudice;

(3)

Corman’s claims seeking the recovery of property are dismissed without
prejudice; and

(4)

Corman be allowed to pursue his claim for deliberate indifference to his
serious medical needs against Defendants Alex Schweitzer, Kerry Wicks,
Larry Culp, Travis Bullock, Randy Switters, Randy Perkins, and Dr. Ernster
in their personal capacities.

IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 19th day of November, 2015.
/s/ Ralph R. Erickson
Ralph R. Erickson, Chief Judge
United States District Court

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