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Mallory v. Douglas County Corrections Medical Staff

United States District Court, D. Nebraska

May 30, 2017

ALAN R. MALLORY, Plaintiff,
v.
DOUGLAS COUNTY CORRECTIONS MEDICAL STAFF, and HEATHER WETZL, Public Defenders - Social Worker; Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Plaintiff 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.

         I. SUMMARY OF COMPLAINT

         Plaintiff 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.)

         Condensed 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 pp. 4-5.)

         In his 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 practices.” (Id.)

         Plaintiff's 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.)

         II. APPLICABLE STANDARDS OF 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).

         Liberally 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).

         III. DISCUSSION

         A. DCCC Medical ...


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