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Nahkahyen-Clearsand v. Lincoln Regional Center

United States District Court, D. Nebraska

July 25, 2017

SHAWNN NAHKAHYEN-CLEARSAND, Plaintiff,
v.
LINCOLN REGIONAL CENTER, A State Psychiatric Hospital; DENNIS CONNELLY, Dr. - In their Individual and Official Capacities; and THERESA HANSEN, RN - In their Individual and Official Capacities; Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         Plaintiff filed a Complaint on June 19, 2017. (Filing No. 1.) He has been given 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”) as a dangerous sex offender. (Filing No. 1 at CM/ECF p. 1.) He alleges that he has been diagnosed with anti-social personality disorder and substance abuse disorder. (Id. at CM/ECF p. 4.) He names in his Complaint: LRC, Dr. Dennis Connelly (“Dr. Connelly”), and Theresa Hansen (“Hansen”). (Id. at CM/ECF pp. 1-2.) He sues Connelly and Hansen in their official and individual capacities. (Id. at CM/ECF pp. 3-4.) He seeks declaratory, injunctive, and monetary relief. (Id. at CM/ECF pp. 10-12.)

         On August 6, 2016, while playing football, Plaintiff broke the fifth metatarsal bone in his right foot. (Id. at CM/ECF pp. 5-6.) Hansen, a registered nurse, examined Plaintiff that same day. (Id. at CM/ECF p. 5.) Believing that Plaintiff's foot was sprained, Hansen provided Plaintiff an ice pack and crutches. (Id.) Plaintiff contends the crutches were too tall for him. (Id.) Two days later, on August 8th, Dr. Connelly examined Plaintiff and ordered x-rays. (Id.) Three days later, on August 11th, Plaintiff learned that the x-rays showed he broke the fifth metatarsal bone in his right foot. (Id.) Plaintiff alleges that, the following two days, he asked Hansen “to be put in a boot or something.” (Id. at CM/ECF p. 6.) Hansen denied Plaintiff's requests and told him that she and Dr. Connelly agreed that Plaintiff had to wait to discuss the issue Dr. Bozart at his appointment on August 16th. (Id.) Plaintiff claims Defendants' actions constituted deliberate indifference because he was denied adequate treatment and that denial resulted in “significant physical and emotional pain and suffering.” (Id.)

         On August 16th, Dr. Bozart placed Plaintiff's foot in a boot. (Id.) On November 8, 2016, Dr. Bozart informed Plaintiff that he needed surgery for his foot because it did not heal properly. (Id.) On November 24, 2016, Plaintiff asked Hansen if the date had been set for his surgery. (Id. at CM/ECF p. 7.) Hansen replied to Plaintiff that no one had time to call to schedule it. (Id.) Plaintiff states that, during this time, a minimum wage job was given to another because of Plaintiff's foot. (Id.) On December 8, 2016, Plaintiff had surgery on his foot. (Id.)

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983 for Fourteenth Amendment violations. (Id. at CM/ECF pp. 7-8.) He claims Defendants denied him medical care because they were aware that he needed to be immediately taken to the hospital or that the movement of his foot needed to be restricted after the x-rays showed it to be broken. (Id.) He also brings this action pursuant to Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act (“RA”). (Id. at CM/ECF pp. 2, 8.) He states he has “mental health diagnoses, injured right foot, . . . is substantially limited in movement in activities, [a]nd deals frequently with pain.” (Id. at CM/ECF p. 8.) He claims LRC discriminated against him in violation of Title II of the ADA and the RA “for failing to provide reasonable accommodations and/or modifications of policies to rec[ei]ve healthcare and by failing to provide healthcare in the most integrated setting appropriate to [his] needs.” (Id. at CM/ECF pp. 2, 8.)

         II. APPLICABLE STANDARDS OF REVIEW

         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See28 U.S.C. § 1915(e)(2). 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. Official Capacity Section 1983 Claims

         The Eleventh Amendment bars claims for damages by private parties against a state, state instrumentalities, and an employee of a state sued in the employee's official capacity. See, e.g.,Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir. 1995). Any award of retroactive monetary relief payable by the state, including for back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of immunity by the state or an override of immunity by Congress. See, e.g., id.; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981). Congress did not abrogate the states' sovereign immunity when it enacted 42 U.S.C. § 1983. Smith v. Beebe, 123 F.Appx. 261, 262 (8th Cir. 2005) (unpublished) (citations omitted). Sovereign immunity does not bar damages ...


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