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Phillips v. State

United States District Court, D. Nebraska

November 9, 2017

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.


          Richard G. Kopf Senior United States District Judge.

         Plaintiff 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.


         Plaintiff 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 needs.

         In a 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. 14.)

         Dr. Che 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.

         Plaintiff 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.

         Only 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.)

         Plaintiff 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.)

         Plaintiff 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.


         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 ...

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