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Nahkahyen-Clearsand v. Department of Health & Human Services

United States District Court, D. Nebraska

April 5, 2017

SHAWNN ERICK NAHKAHYEN-CLEARSAND, Plaintiff,
v.
DEPARTMENT OF HEALTH & HUMAN SERVICES, STACY SWEENY, Acting Chief Executive Officer; ROGER DONOVICK, Dr. -Medical Director; DENNIS CONNOLLY, Dr.; and THERESA HANSEN, RN; Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff filed a Complaint on February 13, 2017. (Filing No. 1.) He has been granted leave to proceed in forma pauperis. (Filing No. 5.) The court now conducts an initial review of Plaintiff s Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2).

         I. SUMMARY OF COMPLAINT

         Plaintiff is confined at the Lincoln Regional Center ("LRC"). (Filing No. 1.) He names the Department of Health and Human Services ("DHHS") and four purported LRC employees as Defendants in his Complaint. (Id. at CM/ECF pp. 1-2.) The four employees are Stacy Sweeny ("Sweeny"), Dr. Roger Donovick ("Dr. Donovick"), Dr. Dennis Connolly ("Dr. Connolly"), and Theresa Hansen, RN ("Hansen"). (Id.)

         Plaintiff alleges that, while playing football, he landed on another person's foot and hurt his ankle. (Id. at CM/ECF p. 3.) He heard "2 loud pops." (Id.) Two staff members helped him to the medical ward, where Hansen examined his foot. (Id.) Plaintiff alleges that Hansen told him that his foot was sprained and gave him ice. (Id.) This occurred on Saturday, August 6, 2016. (Id.)

         Plaintiff alleges that nothing else was done until Monday, August 8th, when he saw Dr. Connolly. (Id.) Dr. Connolly ordered x-rays. (Id.) Plaintiff alleges that nothing else was done until Thursday, August 11th, when he was called to Dr. Connolly's office. (Id.) Plaintiff learned that day that a bone in his foot was fractured. (Id.) He requested a boot be put on his foot, but was told that he had an appointment with Dr. Bozart on August 16th and it would be discussed then. (Id.) Plaintiff alleges that, for the next three days, he requested that something be put on his foot but nursing staff told him that Dr. Connolly stated that he had to wait for his appointment with Dr. Bozart. (Id. at CM/ECF p. 4.) On August 16th, Dr. Bozart put Plaintiffs foot in a boot. (Id.)

         Plaintiff alleges that, on November 8th, he had a follow-up appointment with Dr. Bozart, who took a new set of x-rays. (Id.) The x-rays showed that the bone in Plaintiffs foot had not healed properly. (Id.) Plaintiff was told that he had to have surgery and a screw would "fix it." (Id.) Plaintiff alleges that, on November 24th, he asked Hansen if the appointment for his surgery had been made. (Id.) He was told that it had not. (Id.) The surgery was scheduled for December 8th. (Id.)

         Plaintiff asserts claims under 42 U.S.C. § 1983 for failure to "provide necessary and appropriate healthcare." (Id. at CM/ECF p. 5.) He also asserts claims under Title II of the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act ("RA") "for failing to provide reasonable accommodations and/or modifications to policies to receive healthcare in the most integrated setting appropriate to the Plaintiffs needs." (Id.) Plaintiff continues, "By not immediately transporting the Plaintiff to the hospital the day the injury occurred and by after finding that bone to be fractured, not doing anything until a week later." (Id.) Plaintiff contends that, as result of his injury, he was "passed over" for a job. (Id. at CM/ECF p. 4.) He also states that he "was denied work. My job was given to someone else due to my injury." (Id. at CM/ECF p. 6.) He seeks monetary damages and asks that the "Lincoln Regional Center Medical Department be placed under investigation."[1] (Id.)

         II. APPLICABLE STANDARDS OF 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. DISCUSSION

         A. ...


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