United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, District Judge.
Plaintiff filed his Complaint in this matter on August 26, 2013. (Filing No. 1.) The court gave Plaintiff leave to proceed in forma pauperis. (Filing No. 9.) The court then conducted an initial review of the complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A. The court provided Plaintiff with 30 days to amend his Complaint to (1) identify each defendant; (2) specify the capacity in which each defendant is sued; and (3) set forth a short and plain statement of the claims against the defendant. (Filing No. 16 at CM/ECF p. 3.) Plaintiff filed an Amended Complaint on December 6, 2013, (Filing No. 17), a Second Amended Complaint on January 3, 2014, (Filing No. 22), a Third Amended Complaint on March 19, 2014, (Filing No. 30), and a Fourth Amended Complaint on October 15, 2014, (Filing No. 34). The court now conducts an initial review of the pleadings to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.
I. SUMMARY OF COMPLAINT
Plaintiff is currently incarcerated at the Nebraska State Prison ("NSP") in Lincoln, Nebraska. Plaintiff alleges that on June 26, 2013, while he was at the Diagnostic and Evaluation Center ("DEC"), he sat on a broken chair and fell to the floor. (Filing No. 30 at CM/ECF p. 6.) As a result, he alleges he aggravated or compounded an injury to his right hand and injured his back. He further alleges the officials at DEC were aware the chair was already broken and a work order with a request to fix the chair had been pending since June 16th or 17th. ( Id. at CM/ECF pp. 8-9.)
Plaintiff was examined by Dr. Hustad at DEC on June 26, 2013, and received exercises for his back. ( Id. at CM/ECF p. 7.) Plaintiff subsequently wrote several "inmate interview requests" complaining of "extreme" pain on his right ring finger and his lower back. He was scheduled to see Dr. Machado, the physician who previously performed surgery on Plaintiff's right hand for an unrelated condition. Plaintiff states he met with Dr. Machado two or three times after the fall and received multiple sets of x-rays. ( Id. at CM/ECF p. 8.) Plaintiff alleges Dr. Machado indicated Plaintiff had damaged his right hand and would need surgery to correct the damage. ( Id. at CM/ECF p. 8.) However, Plaintiff alleges Dr. Machado's file notations about the injury did not reflect the same level of severity Dr. Machado communicated to Plaintiff. ( Id. at CM/ECF p. 8.)
After several additional "inmate interview requests" Plaintiff received further testing on his back, including a M.R.I. on August 30, 2013, which revealed Plaintiff had a herniated disc in his back. ( Id. at CM/ECF p. 9.) Plaintiff also alleges his back gave out on two subsequent occasions - October 27, 2013, and November 21, 2013. ( Id. at CM/ECF p. 10.) On both occasions he was transported to the NSP hospital wing. He was given a walker and admitted to a "handicap pod" as a result of the October incident. He was given pain medication as a result of the November incident. On November 22, 2013, he was transported to Bryan Medical Center and given a second M.R.I. on his back. ( Id. at CM/ECF p. 11.)
Plaintiff received surgery on his right hand on December 6, 2013. ( Id. at CM/ECF p. 11.) That surgery resolved the issues he was experiencing in his hand. He continued to complain about pain in his back, but was allegedly told he was faking his injury and was ordered to move from the "handicap pod" to his regular housing pod without the assistance of a walker on December 10, 2013. ( Id. at CM/ECF p. 12.) His back gave out again while he was being escorted back to his regular housing unit. He was taken to the medical wing and given pain medication. ( Id. at CM/ECF p. 13.)
According to Plaintiff, he was "examined and/or treated by [prison medical personnel] on almost a daily basis from his initial confinement, until January 10, 2014 when [he] was admitted to the Southwest Lincoln Surgery Center for exploratory surgery and hospitalization." (Filing No. 34-1 at CM/ECF p. 8.) Plaintiff underwent back surgery on January 14, 2014. (Filing No. 30 at CM/ECF pp. 13-14). He received a laminectomy performed by Dr. Gelber. Plaintiff alleges Dr. Gelber also told him he had a cracked spinous process and lamina and Plaintiff would require further surgery. ( Id. at CM/ECF p. 14.) Plaintiff had a follow-up appointment with Dr. Gelber and Dr. Sorenson in which they confirmed additional surgery would be necessary and suggested the back injury was the result of Plaintiff's June 26, 2013, fall. ( Id. at CM/ECF p. 14.) After returning to the NSP, Plaintiff alleges he requested additional pain medication from Dr. Furgusion, but she denied his request. Plaintiff underwent another back surgery on April 1, 2014. (Filing No. 34-1 at CM/ECF p. 8.)
Plaintiff's pleadings assert causes of action under 42 U.S.C. § 1983 alleging violation of his Eighth Amendment right to be free from cruel and unusual punishment due to his medical treatment, or lack thereof. He also asserts state law claims for negligence and medical malpractice.
II. APPLICABLE LEGAL STANDARD
The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court must dismiss a complaint or any portion thereof 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).
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" for failing to state a claim upon which relief can be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 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."). Regardless of whether a plaintiff is represented or is appearing pro se, the plaintiff's complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However, a pro se plaintiff's allegations must be construed liberally. Burke v. North Dakota Dep't of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).
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, ...