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Harvey v. Nebraska Department of Correctional Services

United States District Court, D. Nebraska

October 19, 2015



John M. Gerrard United States District Judge

This case was filed by Plaintiff Jason William Harvey on March 20, 2015. The court conducted a pre-service screening of Harvey’s Complaint (Filing No. 1) on July 6, 2015. The court ordered Harvey to file an amended complaint that stated a claim for relief against a defendant who was not immune from suit.

Harvey filed his Amended Complaint (Filing No. 10) on August 12, 2015. The court now conducts an initial review of the Amended Complaint in accordance with 28 U.S.C. §§ 1915(e) and 1915A.


Liberally construed, Harvey asserts Eighth Amendment and medical-negligence claims against Defendants Randy Kohl, Steven Rademacher, and Julie Pew. Kohl is a medical director for the Nebraska Department of Correctional Services (“NDCS”), Rademacher is an “infectious disease specialist” for the NDCS, and Pew is a nurse for the NDCS. (Filing No. 10 at CM/ECF p. 1.)

Harvey alleged he entered the NDCS prison system on May 29, 2014. He spent his first 62 days of incarceration at the Diagnostic and Evaluation Center (“DEC”). After these 62 days, his custody was transferred to the Nebraska State Prison (“NSP”). (Filing No. 10 at CM/ECF p. 1.)

Harvey underwent a skin test at the DEC that revealed he had contracted “Inactive Tuberculosis.” When he arrived at the NSP, he was evaluated by Rademacher. Rademacher determined Harvey also had Hepatitis C and Diabetes. (Filing No. 10 at CM/ECF p. 1.) Rademacher determined Harvey’s Hepatitis C would have to be treated first so that his liver, which was in the stages of cirrhosis, could tolerate the medications needed to treat his other conditions. Rademacher recommended treating Harvey’s Hepatitis C with a newly-approved drug called Harvoni. (Filing No. 10 at CM/ECF p. 2.)

Harvey’s proposed treatment plan was submitted to Kohl for approval. Thereafter, Pew informed Harvey that the prison would not provide him with Harvoni because he had not been incarcerated for a period of at least one year. Harvey asked if the medication was being denied because of its cost, and Pew responded that cost was a factor. (Filing No. 10 at CM/ECF p. 2.)

Harvey alleges his health has deteriorated since his incarceration. His various diseases cause him extreme pain and he has begun to feel numbness in his left hand. Harvey believes his prison medical providers’ failure to treat his Hepatitis C will result in further deterioration of his health. For relief, he seeks treatment of his Hepatitis C with the medication Harvoni, and also monetary damages. (Filing No. 10 at CM/ECF pp. 2-3.)


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. W ...

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