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Brown v. Doel

United States District Court, D. Nebraska

August 24, 2018

JESUS BROWN, Plaintiff,
DR. DOEL, Nebraska Department of Correctional Services Medical Director, individually and in their offiacl capacities; GARY J. HUSTAD, MD, individually and in their offiacl capacities; CHERYL FLINN, Physician Assistant, individually and in their offiacl capacities; VAUGHAN WENZEL, Physician Assistant, individually and in their offiacl capacities; and DAN DANAHER, Physician Assistant, individually and in their offiacl capacities; Defendants.


          Richard G. Kopf Senior United States District Judge.

         Plaintiff, an inmate in the custody of the Nebraska Department of Correctional Services (“NDCS”) and currently confined at the Lincoln Correctional Center (“LCC”), brings this 42 U.S.C. § 1983 action in which he complains that NDCS medical staff have been deliberately indifferent to his medical needs. He has been given leave to proceed in forma pauperis. (Filing No. 10.) 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.


         Plaintiff filed this § 1983 action against Dr. Deol, [1] the NDCS Medical Director; Gary J. Hustad, M.D., a doctor responsible for NDCS inmates housed at LCC and the Diagnostic & Evaluation Center (“DEC”); and Physician Assistants (“P.A.”) Cheryl Flinn, Vaughan Wenzel, and Dan Danaher in their official and individual capacities. Plaintiff claims the Defendants have failed to provide him medical treatment in violation of the Eighth Amendment.

         Plaintiff alleges he entered NDCS custody with an existing back injury from a car accident for which he had been receiving treatment. Upon admission at the DEC, Plaintiff informed NDCS medical staff of his back injury and pain, as well as medical issues with his neck, feet, hand, elbow, shoulder, and knee. Plaintiff asserts that his medical conditions are documented in his medical records, in MRI's, and by specialists, and that the Defendants are “well aware of the plaintiff's medical issues and still wish to not treat him for them as they should be.” (Filing No. 1 at CM/ECF p. 3.) More specifically, Plaintiff alleges that the Defendants have not provided him pain medication “even though the[re] is written documentation and [a] specialist that say he needs pain medication.” (Id.)

         Attached to Plaintiff's Complaint are copies of several “Inmate Interview Requests” (hereinafter “IIR”) which indicate that Plaintiff has complained to the NDCS medical staff about his pain and medical issues since at least early September 2017. (See Filing No. 1-1.) The IIRs reveal, inter alia, that Plaintiff has a known diagnosis for neuropathy and, in approximately November 2017, Plaintiff was given the medication Gabapentin for his pain issues, rather than Lyrica as was recommended by another doctor. (Id. at CM/ECF pp. 3, 14.) On or about December 7, 2017, Plaintiff saw a Dr. Kasselman[2] who did “not believe Gabapentin [was] indicated for [Plaintiff's] pain” and the decision was made to “taper[] off” the Gabapentin and prescribe muscle relaxants and injections in Plaintiff's back instead, as well as offering to replace Plaintiff's ibuprofen with indomethacin. (Id. at CM/ECF p. 8.)

         Thereafter, on January 7, 2018, Plaintiff complained in an IIR addressed to the warden that he “strongly disagree[d]” with the medical staff's decision to take him off all his pain medications as he was still experiencing extreme pain. (Id. at CM/ECF p. 11.) Plaintiff received the following response:

Your medical concerns have been discussed with medical staff and although you may not be prescribed the medications you would like, you are being treated. You are currently being prescribed medications to treat the symptoms of the pain.
As an agency, Gabapentin prescriptions are being significantly reduced.


         Subsequently on or about January 17, 2018, in response to Plaintiff's complaints of pain and to be prescribed Gabapentin again, Defendant Dr. Hustad stated that he would “discuss [Plaintiff's] case with Mr. Danaher PA-C (the LCC provider) and develop a follow up plan for [his] chronic pain complaints.” (Id. at CM/ECF p. 13.) The remaining IIRs submitted by Plaintiff after January 17, 2018, show that sick calls were scheduled in response to Plaintiff's continued complaints of pain. (See id. at CM/ECF pp. 4-6.)[3]

         As relief for the Defendants' alleged deliberate indifference to Plaintiff's medical needs, Plaintiff seeks declaratory and injunctive relief, $500, 000.00 in compensatory damages, and $500, 000.00 in punitive damages against each Defendant.


         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).


         A. Sovereign Immunity

         Plaintiff has sued Dr. Deol, Dr. Hustad, and P.A.s Finn, Wenzel, and Danaher in their official and individual capacities for declaratory, injunctive, and monetary relief. Thus, the first question the court must address is to what extent, if any, the Eleventh Amendment bars his 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). An exception to this immunity was recognized by the Supreme Court in Ex Parte Young, 209 U.S. 123 (1908), which permits prospective injunctive relief against state officials for ongoing federal law violations. This exception does not apply to cases involving requests for purely retroactive relief. Green v. Mansour, 474 U.S. 64 (1985).

         Plaintiff's claims for monetary relief and for a declaration of past constitutional violations against the Defendants in their official capacities are barred by Eleventh Amendment sovereign immunity. Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012) (per curiam) (section 1983 provides no cause of action against agents of the state acting in their official capacities; sovereign immunity bars claim against state-agency employees for monetary damages under federal act); Jacobson v. Bruning, No. 4:06-CV-3166, 2007 WL 1362638, at *2 (D. Neb. Apr. 24, 2007) (“a declaratory judgment establishing past liability of the State is . . . forbidden by the Eleventh Amendment” (italics in original) (citing Verizon Maryland, Inc. v. Public Service Comm'n of Maryland, 535 U.S. 635, 646 (2002))); Hansen v. Vampola, No. 4:07CV3074, 2007 WL 1362689, at *2 (D. Neb. Apr. 16, 2007) (“A declaratory judgment establishing only the past liability of the state is forbidden by the state's sovereign immunity preserved by the Eleventh Amendment to the Constitution.” (bold in original)).

         There is nothing in the record before the court showing that the State of Nebraska waived, or that Congress overrode, sovereign immunity in this matter. Thus, Plaintiff's claims for money damages and declaratory relief[4] against Dr. Deol, Dr. Hustad, and P.A.s Finn, Wenzel, and Danaher in ...

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