United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
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)
SUMMARY OF COMPLAINT
filed this § 1983 action against Dr. Deol,
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.
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.”
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 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.)
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
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
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.)
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.
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 a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
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).
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.
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).
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)).
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 against Dr. Deol,
Dr. Hustad, and P.A.s Finn, Wenzel, and Danaher in ...