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Ellis v. Foxall

United States District Court, D. Nebraska

March 23, 2016



Richard G. Kopf Senior United States District Judge

This matter is before the Court on the Motion to Dismiss filed by Defendants Douglas County, Nebraska, Mark Foxall, and Mary Earley (collectively the “County Defendants”). (Filing No. 17.) Plaintiff has not responded to the motion and the matter is fully submitted for disposition.

For the reasons explained below, the County Defendants’ Motion to Dismiss will be granted.


Plaintiff filed a civil rights complaint pursuant to 42 U.S.C. § 1983 in the District Court of Douglas County, Nebraska, on May 15, 2015. (Filing No. 1-1 at CM/ECF p. 2.) He sued various jail and medical staff members of the Douglas County Correctional Center (“DCCC”), in both their official and individual capacities, for their alleged failure to provide medical care for a torn tendon in his hand. Defendants included Douglas County, and two Douglas County employees, Mark Foxall and Mary Earley. Plaintiff also named Correct Care Solutions and two Correct Care Solution employees, Dr. J. Esch and Alan Bogsby, as Defendants. The County Defendants removed the case to this Court on June 11, 2015 (Filing No. 1). On July 20, 2015, the County Defendants moved for partial dismissal of the case. (Filing No. 6.) To date, Foxall is the only Defendant who has been served in this action.

On October 30, 2015, the Court conducted an initial review of Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A. The Court concluded that Plaintiff had failed to state a claim upon which relief could be granted against Douglas County. Accordingly, the Court entered a Memorandum and Order directing Plaintiff to file two separate documents within 30 days: (1) a document showing cause why the case should not be dismissed for want of prosecution and failure to serve process and (2) an amended complaint. Plaintiff was advised that failure to file either document would result in dismissal of the case. The Court also informed the parties that the County Defendants’ motion for partial dismissal would be held in abeyance.

On November 25, 2015, Plaintiff moved for an extension of time to submit the documents required by the October 30, 2015 Memorandum and Order. (Filing No. 9.) On December 7, 2015, Plaintiff filed an Amended Complaint (Filing No. 10), as well as a motion seeking to serve Defendants out of time. (Filing No. 11). On December 28, 2015, the County Defendants filed a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(4), (5), and (6). (Filing No. 17.)


Plaintiff’s Amended Complaint (Filing No. 10) generally alleges as follows:

Plaintiff began his incarceration at DCCC on May 17, 2014. In the days prior to his arrest, he injured his hand. At the time of his injury, he sought medical care at Creighton Medical Center where he was informed that he had torn a tendon in his hand and that his injury would require surgery within a month. Immediately after his arrest, Plaintiff complained to Earley, Bogsby, and Foxall about his need for surgery. Plaintiff also informed Earley, Bogsby, and Foxall that he would suffer permanent injury if he did not have surgery within a month from the day the injury occurred. Despite his complaints of pain, Plaintiff’s requests for medical attention were allegedly ignored for four months.

In September of 2014, while still incarcerated at DCCC, Plaintiff received a medical consultation at Creighton Medical Center. There, he was informed that surgery “was improbable” due to the amount of time that had elapsed since his injury. Also, at this consultation, a physician prescribed physical therapy to restore function in his hand. After returning to DCCC, Plaintiff made several requests to Esch and Bogsby regarding his need for physical therapy. Esch and Bogsby refused his requests, telling Plaintiff that his injury was not life threatening. Plaintiff grieved Esch and Bogsby’s decision to Foxall and Earley. Foxall and Earley decided to have Plaintiff examined at Creighton Medical Center. There, his attending physician ordered physical therapy and a splint. This physician informed Plaintiff that his injury was permanent and beyond repair due to the delay in treatment.

Plaintiff alleges that Earley, Bogsby, Foxall, and Esch failed to provide him prompt medical care and that the delay in treatment caused permanent injury to his hand. He also asserts that Douglas County has a policy or custom of not proving adequate medical attention to inmates if it believes the medical treatment will be expensive. For relief, Plaintiff seeks money damages for alleged violations of state and federal law.


The County Defendants have moved to dismiss this case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face in order to survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when a plaintiff pleads facts that allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Pro se complaints “must be liberally construed, and pro se litigants are held to a lesser pleading ...

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