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Menyweather v. Dept. of Correctional Serv.

United States District Court, D. Nebraska

June 29, 2017

DEPT. OF CORRECTIONAL SERV., SCOTT FRAKES, Director; RANDY T. KOHL, medical director; DR. KATHLEEN OGDEN, O.C.C. Health Coordinator; PEGGY ANTLEY, P.A.C. O.C.C. Physician Assistant; MARGARET ANTLEY, P.A.; BARB LEWIEN, d.c.c. Warden; DR. NATAILIE BAKER, mental health director; DR. DAVID SHRAD, O.C.C. Dentist; DR. ODGEN, T.S.C.I. Dentist; and DR. SAXION, L.C.C. Dentist; Defendants.


          Richard G. Kopf, Senior United States District Judge.

         Plaintiff filed a Complaint and a Supplement to that Complaint on March 27, 2017. (Filing No. 1; Filing No. 2.) He has been given leave to proceed in forma pauperis. (Filing No. 9.) Plaintiff paid his initial partial filing fee on June 12, 2017. (See Docket Sheet.) 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) and 1915A. For the reasons that follow, the court finds Plaintiff's pleadings do not state any claims on which relief may be granted. However, the court will allow Plaintiff to file an amended complaint.


         Plaintiff is a prisoner currently confined at the Lincoln Correctional Center (“LCC”). (Filing No. 1 at CM/ECF p. 1.) He names Scott Frakes (“Frakes”), Director of the Nebraska Department of Correctional Services (“NDCS”), Barb Lewien, Warden of the Omaha Correctional Center (“OCC”), multiple medical personnel employed by NDCS, and any known and unknown NDCS employees as Defendants in his Complaint. (Id. at CM/ECF pp. 9-12.) He sues Frakes in his official capacity. (Id. at CM/ECF p. 9.) He sues all other Defendants in their official and individual capacities. (Id. at CM/ECF pp. 9-12.) Plaintiff seeks monetary relief. (Id. at CM/ECF p. 6.)

         On December 14, 2015, Dr. Odgen, employed at the Tecumseh State Correctional Institution (“TSCI”), performed oral surgery on Plaintiff and failed to remove all of his infected teeth. (Id. at CM/ECF p. 13.) On October 21, 2016, Dr. David Shrad, employed at OCC, sectioned one of Plaintiff's teeth (tooth #14) into three parts, but he was unable to remove any of the tooth roots. (Id. at CM/ECF pp. 13, 39.) Dr. Shrad requested a referral that day for Plaintiff to see an oral surgeon “ASAP” for complete removal. (Id.) Dr. Hustad approved it that same day. (Id. at CM/ECF p. 39.) Plaintiff alleges that, in the ten days that he waited to see the oral surgeon, he became sick with fever, vomited blood, and was in pain, with no medication prescribed by Dr. Shrad. (Id. at CM/ECF p. 13.)

         On November 3, 2016, Dr. Thomson, an outside specialist, performed oral surgery on tooth #14 and Plaintiff felt better. (Id. at CM/ECF p. 14.) However, Plaintiff's face swelled within three days of the surgery. (Id.) He was given antibiotics and an oral mouth wash. (Id.) Plaintiff claims that the infection returned thereafter but medical staff at OCC denied him treatment for three months because they did not believe him. (Id. at CM/ECF pp. 14-15.)

         On December 8, 2016, Plaintiff met with Dr. Baker, a mental health practitioner employed at NDCS, based on the opinion of medical staff that Plaintiff is delusional and mentally ill. (Id. at CM/ECF p. 15.) On December 28, 2016, on the orders of Dr. Baker, Plaintiff was transferred from OCC to the medical clinic at the Diagnostic and Evaluation Center (“DEC”) and placed in a suicide cell for observation. (Id.) Plaintiff states that, while at DEC, x-rays confirmed that he had an infection in his mouth. (Id.) Dr. Nygen prescribed Plaintiff an antibiotic and referred him to speak with Dr. Hustad. (Id. at CM/ECF p. 16.) Plaintiff alleges that Dr. Hustad examined a lump on his temple and on his back, and promised Plaintiff that medical staff at OCC would fix his mouth and perform an MRI. (Id.)

         On January 18, 2017, upon his return to OCC, medical staff took only an x-ray of Plaintiff. (Id.) Plaintiff claims he was transferred back to DEC because medical staff at OCC refused to help him any further. (Id.) Subsequently, Plaintiff saw an outside specialist (name unknown) who pulled a tooth of Plaintiff's that Dr. Thomson broke in the process of removing tooth #14. (Id.) Plaintiff was placed on an antibiotic. (Id.) Plaintiff alleges that the infection returned and that he was sent to segregation in the mental health unit “for trying to see medical after puking all morning, ” and where no one from mental health or medical helped him. (Id. at CM/ECF p. 17.)

         On February 1, 2017, Dr. Saxion, employed at LCC, prescribed Plaintiff another antibiotic because his mouth was still infected. (Id.) Plaintiff was no longer in pain while taking the antibiotic but was still spitting “abscess” from his mouth. (Id.) On February 8, 2017, Dr. Saxion pulled a tooth of Plaintiff's still exposed to the root after all previous surgeries and conducted a biopsy of the inside of Plaintiff's mouth. (Id.) Plaintiff states the biopsy results were negative for infection because Dr. Saxion sampled only the non-infected side of his mouth. (Id.) Plaintiff maintains that the infection still exists possibly in his blood and throughout his body, causing him sickness and pain, and that medical staff refuse to treat it because they believe he is delusional. (Id. at CM/ECF pp. 17, 20.) He alleges that he is not and they are medicating him against his will. (Id. at CM/ECF p. 17.)

         Plaintiff's attachments to his Complaint reveal details about his healthcare, specifically his dental care. On December 14, 2015, Dr. Ogden (who the court infers Plaintiff refers to as Dr. Odgen at TSCI) prescribed Plaintiff Doxycycline for bleeding gums, instructed Plaintiff on how to improve his dental hygiene, and noted that his #32 wisdom tooth may need extracted if problems persisted after improved hygiene. (Id. at CM/ECF pp. 30-32.) On February 4, 2016, Plaintiff was added to the TSCI dental list because he complained to “Dental Medical” that his mouth hurt. (Id. at CM/ECF p. 33.) On June 15, 2016, Plaintiff was added to the OCC dental waitlist because he complained to “Dental Medical” that his mouth hurt. (Id. at CM/ECF p. 35.) From August of 2016 through October of 2016, Plaintiff intermittently complained about pain in his ear and mouth. (Id. at CM/ECF pp. 26-28, 40-42.) On September 15, 2016, medical staff at the Nebraska Medical Center emergency room found that Plaintiff suffered from dehydration and acid reflux after a physical exam, EKG, and chest x-ray. (Id. at CM/ECF pp. 45-49.) A neurological exam the next day revealed normal results. (Id. at CM/ECF p. 44.) On November 17, 2016, Plaintiff was informed:

The Physician Assistant's treatment and care on November 10, 2016, was at community standard of care. Your condition did not warrant emergent care and you were scheduled to see the dentist. On November 17, 2016, the dentist examined your concerns and consulted with you after x-rays that there was no decay or abnormalities and to continue antibiotics. The dentist provided you education on proper dental hygiene. . . .”

(Id. at CM/ECF p. 29.) On December 1, 2016, Plaintiff was informed:

Per medical staff, 3 sets of dental x-rays have been completed. None of these show signs of dental problems to include infection. Medical staff will not prescribe medication without evidence of an infection present.

(Id. at CM/ECF p. 25.) In a letter dated February 21, 2017, Harbans Deol, Deputy Director of Health Services for NDCS, wrote to Plaintiff that the antibiotic appeared to be helping, that biopsy results were pending, and that “dental staff is closely following your health care and will continue to monitor you closely. If you feel extraction of teeth may solve this problem, please discuss with your ...

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