United States District Court, D. Nebraska
ALAN R. MALLORY, Plaintiff,
DOUGLAS COUNTY CORRECTIONS MEDICAL STAFF, and HEATHER WETZL, Public Defenders - Social Worker; Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
filed a Complaint on April 10, 2017. (Filing No. 1.)
He has been given leave to proceed in forma pauperis.
(Filing No. 8.) Plaintiff subsequently filed what
the court will consider to be a supplement to his Complaint.
(See Filing No. 6.) The court now conducts
an initial review of Plaintiff's Complaint and Supplement
to determine whether summary dismissal is appropriate under
28 U.S.C. §§ 1915(e) and 1915A.
SUMMARY OF COMPLAINT
is a prisoner confined at the Douglas County Correctional
Center (“DCCC”). (Filing No. 1 at CM/ECF p.
2.) He names as Defendants in his Complaint the DCCC
Medical Department and any “readable names on the
kites” he has sent, as well as Heather Wetzl
(“Wetzl”), a social worker with the Douglas
County Public Defender's Office. (Id.) The only
names that the court can discern from Plaintiff's
“kites, ” or inmate request forms attached to his
Complaint and Supplement, are “M. Hubbard RN” and
“Rae Ridler.” (See Filing No. 1 at CM/ECF pp.
12, 19.) In his Supplement, Plaintiff adds Dr.
Ash as a defendant. (Filing No. 6.) He sues DCCC
Medical Department in its official capacity, and Wetzl in her
individual capacity. (Filing No. 1 at CM/ECF p. 2.)
He sues Dr. Ash in her “personal/prof. capacity.”
(Filing No. 6 at CM/ECF p. 1.) The court understands
this to mean that Plaintiff sues Dr. Ash in her individual
and official capacities. Plaintiff seeks monetary relief and
“a full investigation and correction of policies”
at DCCC. (Filing No. 1 at CM/ECF p. 5.)
and summarized, Plaintiff alleges that DCCC medical staff
have denied medications prescribed to him as treatment for
conditions diagnosed prior to his incarceration. He asserts
that medical doctors have diagnosed him with a
“condition of crushed 4 and 5th vertebrae which pinch a
nerve causing the chronic pain that led to the
depression/anxiety and insomnia localized in [his] neck -
complicated by the degenerative arthritis there.”
(Id. at CM/ECF p. 22.) He states that, when he
turned himself in, he brought his medications and supporting
documentation from doctors and pharmacies. (Id. at
CM/ECF p. 4.) Plaintiff's medications include a
“very strong” anti-inflammatory medication,
muscle relaxers, hydrocodone, and two psych medications - one
being Seroquel. (Id. at CM/ECF p. 22.) Plaintiff
believes that there is a conspiracy to deny him of these
medications, and Wetzel is included within that conspiracy
because Plaintiff learned from his lawyer that Wetzel
verified that DCCC is giving him all of his medications.
(Id.) He claims that DCCC has damaged his heart by
“abruptly stopping” his medications, and he has
now been informed that he needs bypass surgery and a pace
maker. (Id. at CM/ECF p. 5.) Finally, Plaintiff
states that DCCC has placed him in the “med unit”
for observation because he experiences chest pain, but they
have placed him in the furthest cell in the unit where no one
attends to him as retaliation for his
“persistence.” (Id. at CM/ECF p. 4.) He
admits that he receives blood pressure medicine, prostate
medication, and one psych medication. (Id. at CM/ECF
Supplement, Plaintiff asserts that Dr. Ash prescribes
“all or mostly all” medication to one race of
inmates only. (Filing No. 6 at CM/ECF p. 1.) He
states that Dr. Ash prescribes medications to
“Kaslov(f), ” who sells them because he does not
need them and “brags about how he plays the
med-department.” According to Plaintiff, Dr. Ash does
not prescribe them to Plaintiff and another inmate,
Christopher Carr, who do need them. (Id. at CM/ECF
pp. 1-2.) He alleges the race of “Kaslov(f), ”
from what the court can understand from Plaintiff's
handwriting, as “dark.” (Id.) Plaintiff
also generally asserts that there was another
medical-involved death at DCCC, and he needs help
“given the current policies and biased
attached inmate request forms contain staff responses to his
medication requests and reveal details about his care at
DCCC. On March 17, 2017, “M. Hubbard RN”
responded to Plaintiff, “While in our facility, it is
to our doctor's discretion as to what she feels is
necessary for your treatment. You are receiving the
medication that our doctor feels is necessary for you.”
(Id. at CM/ECF p. 12.) On March 18, 2017, an
unidentified staff member responded to Plaintiff,
“Medical reviewed your medications and made decisions
regarding your treatment and requested off site medical
records to continue care. All decisions regarding health care
are deferred to the medical provider.” (Filing No.
6 at CM/ECF p. 4.) An unidentified “CMA”
informed Plaintiff on more than one occasion during March of
2017 that DCCC medical staff only prescribe certain
medications, a low dose of Seroquel is not one of those
medications, and scheduled Plaintiff to see a psychiatrist.
(Filing No. 1 at CM/ECF pp. 13-14, 16.) On
March 27, 2017, an unidentified staff member informed
Plaintiff that they verified his medications with Hy-Vee and
checked his property where they found his Flomax, a prostate
medication, and gave it to the doctor for review.
(Id. at CM/ECF p. 17.) On March 28, 2017, “Rae
Ridler” responded to Plaintiff's request for an
evaluation to discuss his medications, “Please provide
your attorneys name and contact information for an
evaluation. Once approved by them you can be placed on the
waiting list.” (Id. at CM/ECF p. 19.) On April
2, 2017, an unidentified nurse noted that Plaintiff saw the
doctor on March 22, 2017, and that Plaintiff had a normal EKG
reading on April 2nd despite low readings on one prior
occasion, with no present edema. (Filing No. 6 at CM/ECF
p. 3. See Filing No. 1 at CM/ECF p.
5.) S/he noted that Plaintiff was scheduled for a
chronic care appointment the week of April 2nd. (Filing
No. 6 at CM/ECF p. 3.)
APPLICABLE STANDARDS OF REVIEW
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).
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.”).
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).
construed, Plaintiff here alleges federal constitutional
claims. To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege a violation of rights protected by the
United States Constitution or created by federal statute and
also must show that the alleged deprivation was caused by
conduct of a person acting under color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988); Buckley v.
Barlow, 997 F.2d 494, 495 (8th Cir. 1993).
DCCC Medical ...