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Washington v. Foxhall

United States District Court, D. Nebraska

April 5, 2017

DEROISE J. WASHINGTON, Plaintiff,
v.
MARK FOXHALL, Director, MARY EARLY, Captain, ESCH, Medical Doctor, HUBBARD, Captain, and ALLEN BAGBY, Health Administrator, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         On February 22, 2017, the court entered a Memorandum and Order (Filing No. 12) on initial review of Plaintiff s Complaint (Filing No. 1) and Supplement to the Complaint (Filing No. 9). The court noted that Plaintiff, who is confined at the Douglas County Corrections Center (DCCC), claimed that Defendants Foxhall, Early, and Esch[1] denied him due process by not providing him with adequate treatment for various medical conditions, including psoriatic and osteo arthritis, a femoral head collapse which requires total hip replacement surgery, bulging and ruptured discs which also require surgery, and sciatic nerve compression. The court construed the Complaint as alleging this claim against Defendants only in their official capacities -that is to say, against Douglas County- and determined that the Complaint and Supplement failed to state a claim upon which relief can be granted because there were no allegations to suggest the existence of an unconstitutional policy or custom.

         The court on its own motion then granted Plaintiff leave to amend, and described the essential elements of a constitutional claim for deprivation of medical care under the Eighth Amendment or Fourteenth Amendment, depending upon Plaintiffs confinement status. Plaintiff was advised that he would not be required to re-file any attachments to the Complaint or Supplement, but that the Amended Complaint should otherwise stand on its own as a superseding pleading.

         On March 8, 2017, Plaintiff filed an Amended Complaint (Filing No. 15) which adds two Defendants, Hubbard and Bagby.[2] The court now conducts an initial review of the Amended Complaint to determine whether summary dismissal is appropriate under 28U.S.C.§§ 1915(e)(2) and 1915A.

         I. SUMMARY OF AMENDED COMPLAINT

         Plaintiff states that Defendants Foxhall, Esch, and Bagby are sued in both their individual and official capacities, while Defendants Early and Hubbard are sued only in their official capacities. Plaintiff alleges in pertinent part:

It is the policy of this institution to have a member of the medical staff to interview inmates upon intake to determine the need(s) of the inmate and to make the appropriate recommendations to Esch or to summon outside emergency help. The medical department failed to perform its routine obligation to Plaintiff upon reception. [Plaintiff] informed the medical department via Inmate Request Forms (attached with original Complaint and Supplements) of his mental and physical ailments; a full list of prescribed medications by medical specialists; and signed release forms to gain information from said specialists and pharmacy. A letter written by my primary care physician outlining my needs based on reports and treatments by specialists was faxed by my public defender to D.C.C.C. and its medical department. In spite of the clear and specific diagnosis and treatments of multiple surgeons and specialists, Esch has done the following:
1. Refused to administer drugs and treatments outlined by specialists with far superior knowledge and intimate experience with all that gives Plaintiff a quality of life that equals all others.
2. Prescribed over-the-counter (OTC) drugs (Aspirin, Tylenol, Ibuprofen, Naproxen) that are exponentially inferior to any drug commonly and widely used by the medical community to treat my level of pain and mobility issues. On 9 February 2017, Medical Assistant Christie interviewed [Plaintiff] for the request to be given medication stronger than Tylenol for new and degenerating issues. Christie prescribed two days worth of Tylenol (650 mg twice daily) until seen by Dr. Esch.
3. On 10 February 2017, the day after my interview with Christie, Esch called me in to review vitals and lungs. Esch NEVER addressed the new and dibilitating [sic] medical issue addressed to Esch on the 2nd and 9th of February.[3]
4. Dr. Esch has the authority to follow the treatment plan of Plaintiffs medical specialists, and yet, refuses. Esch is aware of the Nebraska Administrative Codes Title 81, Chapter 10, 002.07 and 002.10.[4]Esch has the authority to contact judicial authority to effect [Plaintiffs] release based solely on medical issues. Dr. Esch's below the average standard of treatment, and refusal to follow medical standards for jails in Nebraska is discriminative, malicious, derelict and has caused further deteriation [sic] to the plaintiffs mental and physical health. . . .
Allen Bagby, Health Administrator, has policy-making authority and is Esch's supervisor. Bagby works closely with Esch, has access to all of my information, requests and grievances; and is fully aware of the Nebraska Administrative Codes mentioned above. Bagby supports Esch; denies that plaintiff has a legal right to retain his own physician concerning his medical services (see 81-10, 002.10). . . .
Mark Foxhall, Director, has the policy-making authority and is the most senior authority at D.C.C.C. All department heads must report to Foxhall especially challenges to security and/or policies. Foxhall has access to all of my information, requests and grievances; and is fully aware of the Nebraska Administrative Codes as well as the federal and state statutes, regulations and codes.... By and through Captains Early and Hubbard, Foxhall is deliberately indifferent and is purposely allowing [Plaintiffs] health to deteriate [sic].

(Filing No. 15 at CM/ECF pp. 2-6 (emphasis in original).)

         II. 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).

         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 Ashcroftv. 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. JPMorsan 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 ...


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