United States District Court, D. Nebraska
JARROD D. PHILLIPS, Plaintiff,
STATE OF NEBRASKA, DEPARTMENT OF CORRECTIONS, ROBERT MADSEN, Warden of NSP Prison, official capacity, RICHARD BRITTENHAM, Captain, NSP Prison, official capacity, DR. J. CHE, NSP Doctor, official capacity, DOCTOR T. CHAMBERLAIN, NSP Doctor, official capacity, and DR. H. DEOL, Deputy Director of Medical, official capacity, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
Jarrod Phillips, a pro se litigant now incarcerated at the
Tecumseh State Correctional Institution (“TSCI”),
filed this action regarding events that occurred at the
Nebraska State Penitentiary (“NSP”) in Lincoln,
Nebraska. The court has granted Plaintiff permission to
proceed in forma pauperis, and the court now conducts an
initial review of the Complaint (Filing No. 1) to
determine whether summary dismissal is appropriate under 28
U.S.C. §§ 1915(e) and 1915A.
SUMMARY OF COMPLAINT
sues the Nebraska Department of Correctional Services
(“NDCS”), the NDCS Deputy Director of Health
Services, and four NSP administrative and medical officials
in their official capacities for failure to protect him from
harm and deliberate indifference to his serious medical
147-page Complaint, Plaintiff alleges that on March 20, 2017,
he felt a sharp pain in his lower stomach, scrotum, and penis
as he was weightlifting at NSP. When Plaintiff saw NSP
physician Dr. Che that afternoon, he found a mass in
Plaintiff's penis which, according to Plaintiff,
prevented him from urinating and “burned like fire,
accompanied with blood and puss.” (Filing No. 1 at
CM/ECF p. 13.) Plaintiff admitted to Dr. Che that 13
months earlier, he “was high on K2 and methamphetamine
[and] my cell mate dared me to insert a tiny piece of steel
into my urethra and urinate it out like a dart, for $30. Like
a fool I accepted the dare and the piece of broke razor
immbedded [sic] into me.” The razor piece was
surgically removed at a local hospital on February 1, 2016.
(Filing No. 1 at CM/ECF p. 13.) Plaintiff assured
Dr. Che that the mass currently in his penis was not
“self-inflicted.” (Filing No. 1 at CM/ECF p.
arranged for Plaintiff to be transported to the Emergency
Department at a local hospital the next day. When Plaintiff
was explaining his injury to the Physicians' Assistant
(“PA”) on duty, he admitted the prior razor
incident, after which she became “hostile and
accusatory” toward him. (Filing No. 1 at CM/ECF p.
14.) She ordered a CT scan and laboratory work, after
which she assured Plaintiff he did not have kidney stones,
but instead had a 12-millimeter “Unidentified Foreign
Object of Unknow[n] Origins.” (Filing No. 1 at
CM/ECF p. 14.) After the PA told Plaintiff and NSP
Sergeant Gates (who accompanied Plaintiff) that Plaintiff
would be admitted to the hospital and given painkillers,
antibiotics, and an exploratory scope procedure, “a
man” allegedly entered Plaintiff's examination
room, announced a “change of plans, ” and
“rammed” a catheter into Plaintiff, causing
“a pop and extreme pain” that prevented Plaintiff
from sitting or standing. Plaintiff characterizes this
incident as a sexual assault.
was then transported back to NSP, where NSP medical personnel
removed the catheter pursuant to Plaintiff's demand.
(Filing No. 1 at CM/ECF p. 35.) Plaintiff claims he
did not receive antibiotics or painkillers until 30 days
later. During that 30-day time period, Plaintiff was taken to
a private urology practice for a follow-up, but was
discharged from the practice due to disruptive behavior.
after Plaintiff's prison advocate contacted the NDCS
regarding why Plaintiff was not being seen and after a
psychological evaluation was Plaintiff sent to the University
of Nebraska Medical Center for an examination on May 26,
2017. Surgery was performed on June 14, 2017, which resulted
in the removal of a black “plastic hollow cylindrical
object” that was impacted in Plaintiff's urethra
and had to be broken into five pieces with a laser in order
to remove it. (Filing No. 1 at CM/ECF pp. 73, 80.)
claims that from March 20, 2017, to June 14, 2017, he
unsuccessfully requested that all Defendants provide him
medical help for intense pain caused by the foreign object
and the catheter incident. He also requested that law
enforcement perform a sexual-assault investigation of the
treatment he received in the hospital. He accuses the
Defendants of placing his “health and life . . . in
Recklessly dangerous Fashion by Medical Professional.”
(Filing No. 1 at CM/ECF p. 4.) Plaintiff alleges
that during this time period, he suffered internal bleeding,
infection, inability to sleep, deprivation of prescribed
“overactive bladder” medication that prolonged
his recovery and intensified his pain, panic attacks, a
psychotic break, and he feared his own death. He claims that,
due to the delay in treatment, he is now unable to get an
erection or urinate while standing, and he “[n]o longer
think[s] of [him]self as a man.” (Filing No. 1 at
CM/ECF p. 5.)
requests that all Defendants be terminated from their
employment; that his prescription for “Oxybatynn for
overactive bladder be reinstated Immediately at previo[u]s
dosage”; and $1.5 million in damages.
LEGAL STANDARDS ON INITIAL 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 ...