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Strawder v. Rollins

United States District Court, D. Nebraska

July 11, 2018

THOMAS DUANE STRAWDER, Plaintiff,
v.
APRIL ROLLINS, Nurse NDCS LCC, in her individual and official capacities; DAN DANAHER, Phys Assist NDCS, in his individual capacity; LINCOLN CORR CNTR MEDICAL CLINIC; JOHN DOE WARDEN LCC, in his individual and official capacities; SCOTT R. FRAKES or Designee, in his individual and official capacities; DIRECTOR NDCS or Designee, in his individual and official capacities; MS. R. TAYLOR, Unit Manager, in her individual and official capacities, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge

         Plaintiff Thomas Duane Strawder, a pro se litigant now incarcerated at the Lincoln Correctional Center (“LCC”), filed this 42 U.S.C. § 1983 action in which he complains about what he views as substandard medical care. 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) and Supplement (Filing No. 6) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.

         I. SUMMARY OF COMPLAINT & SUPPLEMENT

         Plaintiff brings this § 1983 suit for alleged violations of the Eighth and Fourteenth Amendments due to the “Lack of community standard Health care” and the Defendants' failure to refer him to an “outside expert Dermatologist” for a sore on his head that has bothered him since December 2017. (Filing No. 1 at CM/ECF p. 3.) Plaintiff alleges that Defendant Rollins told him the sore was “an ingrown hair, ” but Plaintiff wonders if the sore is gangrene or melanoma, alleging that he has a family history of cancer and that “[a] popular singer had cancer on his toe he died” (Filing No. 1 at CM/ECF p. 5.)

         Plaintiff alleges that his “contageous [sic] sore” was treated with antibiotics two times a day for 20 days in December 2017, and after no improvement was noted, he had a biopsy of the area on January 16, 2018. The results of the biopsy showed that the “sore” was benign. (Filing No. 1 at CM/ECF p. 5.) He was prescribed an “Rx cream, ” but it has not healed the sore, which is allegedly spreading. Plaintiff claims that his “unknown disease disorder” is ongoing, he has yet to receive effective treatment, and he needs a travel order to see a specialist. (Filing No. 1 at CM/ECF p. 5; Filing No. 6 at CM/ECF p. 18.) Plaintiff demands money damages and referral to an “expert Dermatology clinic outside prison.” (Filing No. 1 at CM/ECF pp. 3, 5, 7; Filing No. 6 at CM/ECF p. 26.)[1]

         II. LEGAL STANDARDS ON INITIAL 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. Defendant LCC

         As an initial matter, Defendant Lincoln Correctional Center Medical Clinic must be dismissed as an improper defendant in a § 1983 action. Kochel v. Slykhuis, No. CIV. 05-4027, 2005 WL 1240173, at *3 (D.S.D. May 24, 2005) (“Plaintiff's complaint against the ‘Prison Health Services' should be dismissed with prejudice for failure to state a claim upon which relief can be granted.”); see also Smith v. Harness, No. 4:14CV00753, 2017 WL 243985, at *3 (E.D. Ark. Jan. 19, 2017) (“The Jacksonville Police Department is not an entity capable of being sued and therefore could be dismissed on that basis.”); Caldwell v. Dub Brassell Det. Ctr., No. 5:15CV352, 2015 WL 9855535, at *2 (E.D. Ark. Dec. 21, 2015), report and recommendation adopted, No. 5:15CV352, 2016 WL 233663 (E.D. Ark. Jan. 19, 2016) (“the sole Defendant-the Jail-is not considered a ‘person' within the meaning of 42 U.S.C. § 1983, and cannot be sued”).

         B.Defendants in Official Capacities/Sovereign ...


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