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Ditter v. Nebraska Department of Correctional Services

United States District Court, D. Nebraska

January 30, 2017

DAVID DITTER, Plaintiff,
v.
NEBRASKA DEPARTMENT OF CORRECTIONAL SERVICES, SCOTT FRAKES, in his individual & official capacity, RANDY T. KOHL, MD, in his individual & official capacity, CORRECT CARE SOLUTIONS, RONALD OGDEN, DDS, in his individual & official capacity, and LISA MATHEWS, in her individual & official capacity, Defendants.

          AMENDED MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         Plaintiff David Ditter, who is incarcerated at the Tecumseh State Correctional Institution (“TSCI”), has been granted leave to proceed in forma pauperis. The court now conducts an initial review of Ditter’s Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

         I. SUMMARY OF COMPLAINT

         Plaintiff claims that the defendants, in their individual and official capacities, are subjecting him to cruel and unusual punishment by being deliberately indifferent to his serious medical needs-specifically, that the defendants are failing to provide him with dental implants in order to hold his dentures in place so he can eat. Plaintiff asserts that defendant Ronald Ogden, DDS-who is a dentist employed by defendant Correct Care Solutions, which is a medical services company that provides medical and dental care to the inmates at TSCI-knew that Plaintiff was unable to eat due to his loose dentures, that Plaintiff had a “shallow ridge,” and that only dental implants would hold his upper dentures in place, but failed to refer Plaintiff to a dental specialist or oral surgeon to determine how effective dental-implant surgery would be in his individual case, contrary to Operational Memorandum 115.07.01.[1] Plaintiff alleges that Dr. Ogden told Plaintiff “he wasn’t allowed to do this procedure,” and that defendant Dr. Kohl advised Plaintiff that “implants . . . are not provided by Corrections. Dental implants are not covered by health insurance or by Medicaid.” (Filing No. 1 at CM/ECF p. 30.)

         Plaintiff also alleges that defendant Lisa Mathews, the Nebraska Department of Correctional Services (“NDCS”) Americans with Disabilities Act Coordinator, told Plaintiff “that the Department would not approve the extraordinary expense for implant surgery as it would create an undue burden on the Department . . . if you were to elect to have such a surgery, it would be at your own expense.” (Filing No. 1 at CM/ECF p. 37.) Mathews also told Plaintiff that the NDCS contacted an oral surgeon who determined that upper implants would be contraindicated for Plaintiff because upper implants are less successful than lower implants and because Plaintiff has significant bone loss. The surgeon allegedly opined that no oral surgeon would agree to perform dental implants in these circumstances, especially since the surgery would cost at least $15,000, a custom denture would cost $12,000, and the procedure would have a “low likelihood of success.” (Id.) Mathews offered to accommodate Plaintiff’s chewing problems by “making a soft diet available.” (Id.)

         Plaintiff claims that as a result of the defendants’ failures, he is experiencing a “serious inhibition of the ability to eat . . . causing me pain and suffering, along with . . . my inability to engage in normal life activity, including chewing, eating, swallowing, loss of weight and . . . nutrition deficiencies . . . .” (Filing No. 1 at CM/ECF p. 5.) Plaintiff alleges that his ill-fitting dentures have caused sores on his palate and have resulted in Plaintiff biting into the sides of his mouth when attempting to eat. (Id.)

         Plaintiff’s Complaint (Filing No. 1) alleges claims pursuant to 42 U.S.C. § 1983 (Eighth and Fourteenth Amendment); the Americans With Disabilities Act, 42 U.S.C. §§ 12101, et seq., as amended (“ADA”); and the Nebraska Correctional Health Care Services Act, Neb. Rev. Stat. §§ 83-4,153 to 83-4,165 (Westlaw 2016). Plaintiff does not request money damages, but only an “Order that the Nebraska Department of Correctional Services provide me with ‘dental implants’ to secure my upper complete denture in place in my mouth while eating my daily meals.” (Filing No. 1 at CM/ECF p. 6.)

         II. STANDARDS ON INITIAL REVIEW

         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). 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).

         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. ANALYSIS

         A. § 1983 Claims

         1. Official-Capacity Claims

         A suit may be brought under section 1983 only against a “person” who acted under color of state law. Generally, a state, its agencies and instrumentalities, and its employees in their official capacities are not a ‘persons’ “as that term is used in § 1983, and [are] not suable under the statute, regardless of the forum where the suit is maintained.” Hilton v. South Carolina Pub. Railways Comm’n,502 U.S. 197, 200-01 (1991). See also McLean v. Gordon, 548 F.3d 613, 618 (8th Cir. 2008) (states, arms of the state, and state officials acting in their official capacities are not subject to suit under § 1983). However, state officials are “persons” under § 1983 when sued for injunctive relief ...


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