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Brown v. Nebraska Department of Correctional Services

United States District Court, D. Nebraska

September 21, 2016

MARVIN L. BROWN JR., Plaintiff,
v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, ROBERT HOUSTON, Director, MICHAEL KENNEY, Director, SCOTT FRAKES, Director, DIANE SABAKA RHINE, RANDY KOHL, Medical Director, FRANCIS BRITTEN, Warden, MARIO PEARTZ, Warden, BRIAN GAGE, Warden, SCOTT BUSBOOM, Associate Warden, SHAWN SHERMAN, Unit Admin., DR. JEFF DAMME, DR. BOLT, KIMBERLY DOHT, APRN, CHERYL FLINN, LUE YOUNG, CHRIS, PA/RNs, T PELLA, CPL Officer, TAYLOR, and FALK, worker and Manager, all in their official and individual capacities, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff Marvin Brown, Jr., an inmate at the Tecumseh State Correctional Institution, filed his Complaint (Filing 1) in this matter on May 17, 2016, and a Supplemental Complaint (Filing 18) on July 5, 2016.[*] This court has given Plaintiff leave to proceed in forma pauperis. (Filing 8.) The court now conducts an initial review of Plaintiff's complaints to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2) and 1915A.

         I. SUMMARY OF COMPLAINT

         Plaintiff's complaints-totaling 409 pages and consisting of repetitive factual allegations and requests for relief, legions of grievances and responses, and medical records from both correctional institutions and outside providers-assert that the defendants, in their individual and official capacities, violated his constitutional and statutory rights when they disregarded his knee and back problems in placing him in various cells at the Lincoln Diagnostic and Evaluation Center, the Lincoln Correctional Center (“LCC”), and the Tecumseh State Correctional Institution (“TSCI”) from March 30, 2010, to February 8, 2016.

         Liberally construing Plaintiff's pleadings, Plaintiff brings 42 U.S.C. § 1983 claims alleging that the defendants subjected him to cruel and unusual punishment by being deliberately indifferent to his serious medical needs when the defendants refused to acknowledge and accommodate his physical limitations and disability, as determined by the Nebraska Department of Education and the Social Security Administration. Plaintiff also purports to bring a claim under the Nebraska Correctional Health Care Services Act, Neb. Rev. Stat. §§ 83-4, 153 to 83-4, 165 (Westlaw 2016), and I construe Plaintiff's complaints to assert a claim under the Americans With Disabilities Act, 42 U.S.C. §§ 12101, et seq., as amended (“ADA”), based on the defendants' alleged refusal to accommodate his ailments during his incarceration.

         Specifically, Plaintiff alleges that on May 6, 2009, the Douglas County Department of General Assistance determined that Plaintiff could perform “light duty work only-no prolonged standing/walking, ” and the Social Security Administration (“SSA”) issued a decision on September 2, 2009, that Plaintiff was disabled from January 1, 1998, to September 2, 2009. (Filing 1 at CM/ECF pp. 34-45, 51, 99-104.) The “medical source statement, ” which was given “great weight” by the SSA, was submitted by Dr. Michael O'Neil, a physician at Nebraska Orthopaedic Associates, who opined that Plaintiff should never climb ladders or scaffolds, kneel, crouch, or crawl, and should not stand more than one hour without interruption. (Filing 1 at CM/ECF p. 42.) The SSA found that Plaintiff had several “severe impairments”1 and “due to chronic pain, the claimant is unable to sustain the performance of any work.” (Filing 1 at CM/ECF p. 101.)

         Plaintiff alleges that despite the SSA's disability finding, the defendants gave him a “tub” bed and placed him in an upper bunk for part of his incarceration, both of which were hard for him to maneuver with his pre-existing knee and back problems; placed him in upper-tier cells that required him to climb stairs; assigned him to some cells that did not have grab bars by the toilet; and assigned him to do kitchen work that required prolonged standing-all of which aggravated his pre-existing knee and back problems, causing him a great deal of pain. Plaintiff asserts that he has “continued to experience difficult living condition arrangements ongoing.” (Filing 1 at CM/ECF p. 21 (capitalization & spelling corrected).)

         The attachments to Plaintiff's complaints indicate that when Plaintiff was in Nebraska Department of Correctional Services (“NDCS”) intake on March 30, 2010, he reported that he could not climb stairs due to a rod in his ribs and screws in his knee, and that his medical records were with the Lancaster County Jail. That same day, NDCS called Lancaster County to verify Plaintiff's claimed medical condition, and the Lancaster County nurse reported that Plaintiff had no restrictions while he had been incarcerated at the county facility since December 2009. (Filing 1 at CM/ECF p. 54.)

         Starting almost immediately after his incarceration, Plaintiff complained weekly (and often more) to various defendants that the SSA had classified him as disabled, that he had physical restrictions that prevented him from being placed in certain cells, and that requiring him to be in a top bunk or “tub” bed and in an upper-tier cell aggravated his already painful knee and back conditions. The defendants responded to each of Plaintiff's requests and provided him with many items to relieve pain, [1]diagnostic medical visits and imaging, [2] surgery, [3] and cell reassignment.[4] The defendants also repeatedly tried to obtain the disability determinations and supporting medical records to which Plaintiff referred.[5]

         Plaintiff requests $20 million in damages, as well as injunctive relief requiring that all NDCS employees acknowledge his “prescribed limitations and activities” and allow him to permanently “reside in a medically equipped cell.” (Filing 1 at CM/ECF pp. 5-6.)

         II. APPLICABLE 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.”).

         “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 OF CLAIMS

         A. § 1983 Claims

         1. Immunity

         Plaintiff has sued NDCS and several of its administrators and medical staff members in both their individual and official capacities. Plaintiff seeks monetary relief for alleged past violations of federal law, as well as injunctive relief. Thus, the ...


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