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Brown v. Deol

United States District Court, D. Nebraska

October 25, 2018

JESUS BROWN, Plaintiff,
v.
DR. DEOL, Nebraska Department of Correctional Services Medical Director, individually and in their offiacl capacities; GARY J. HUSTAD, MD, individually and in their offiacl capacities; DAN DANAHER, Physician Assistant, individually and in their offiacl capacities; and DR. JEFFREY KASSELMAN, in his individual and official capacity; Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This matter is before the court on Plaintiff's Motion for Counsel (filing no. 22) and what the court construes as a motion for summons (filing no. 23), which were both filed in conjunction with Plaintiff's Amended Complaint (filing no. 21). The court will address each motion below.

         I. MOTION TO APPOINT COUNSEL

         Plaintiff asks the court to appoint him counsel due to his inability to afford private counsel. As the court previously explained in denying Plaintiff's first motion for counsel (see filing no. 16 at CM/ECF pp. 12-13), the court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996), the Eighth Circuit Court of Appeals explained that “[i]ndigent civil litigants do not have a constitutional or statutory right to appointed counsel.” Trial courts have “broad discretion to decide whether both the plaintiff and the court will benefit from the appointment of counsel, taking into account the factual and legal complexity of the case, the presence or absence of conflicting testimony, and the plaintiff's ability to investigate the facts and present his claim.” Id. Having considered these factors, the request for the appointment of counsel will be denied without prejudice to reassertion.

         II. AMENDED COMPLAINT AND MOTION FOR SUMMONS

         On October 5, 2018, Plaintiff filed an Amended Complaint[1] (filing no. 21) and what the court construes as a Motion for Summons (filing no. 23). In his Amended Complaint, Plaintiff seeks to add Dr. Jeffrey Kasselman as a Defendant and alleges Dr. Kasselman is the pain specialist for the Nebraska Department of Correctional Services (“NDCS”) who “agreed to remove [Plaintiff] off his medication, even when he was in serious pain.” (Filing No. 21 at CM/ECF pp. 1, 3, ¶¶ 4, 20.)

         Upon review of Plaintiff's Amended Complaint and given the liberal construction afforded to pro se litigants' pleadings, the court concludes that Plaintiff has sufficiently alleged an Eighth Amendment claim for deliberate indifference to Plaintiff's serious medical needs against Dr. Kasselman. Plaintiff's claims may proceed to service of process against Dr. Kasselman in his individual capacity, and only his claim for prospective injunctive relief may proceed against Dr. Kasselman in his official capacity. Plaintiff's official-capacity claims against Dr. Kasselman for monetary and declaratory relief are dismissed for the same reasons stated in the court's August 24, 2018 Memorandum and Order (filing no. 16).

         Plaintiff filed six “Praecipe[s] for Summons” along with his Amended Complaint, seeking to have his Amended Complaint served on all the Defendants. (Filing No. 23.) Based on the court's review of the Amended Complaint, Plaintiff's Motion for Summons is granted to the extent that the court will direct the clerk of the court to complete the appropriate summons forms and forward them to the United States Marshals Service for service on Dr. Kasselman in his individual and official capacity. Plaintiff's Motion for Summons is denied to the extent he seeks to serve the Amended Complaint on Physician Assistants Cheryl Flinn and Vaughn Wenzel as those Defendants have been dismissed from this action. (SeeFiling No. 16 at CM/ECF p. 15.)

         Defendants Dr. Deol, Dr. Gary J. Hustad, and Physician Assistant Dan Danaher were served with the original Complaint prior to the date Plaintiff filed his Amended Complaint. (See Filing Nos. 18, 19, 20, 24, & 25.) These Defendants, in both their individual and official capacities, filed an Answer (filing no. 26) through counsel on October 15, 2018, subsequent to Plaintiff's filing of his Amended Complaint. The Defendants' Answer appears to respond to the allegations contained in Plaintiff's original Complaint (filing no. 1), but also asserts various defenses “in response to the allegations in the Amended Complaint.” (Compare Filing No. 26 at CM/ECF p. 1 with Filing No. 26 at CM/ECF p. 5, “Defenses” (emphasis added).) If Defendants Dr. Deol, Dr. Hustad, and Danaher are satisfied that their Answer sufficiently addresses the allegations of the Amended Complaint, then they may forgo filing a new answer. If, however, these Defendants feel their Answer insufficiently responds to the Amended Complaint, then the Defendants have 30 days from the date of this order to file an answer to the Amended Complaint. Accordingly, IT IS ORDERED that:

         1. Plaintiff's Motion to Appoint Counsel (filing no. 22) is denied without prejudice to reassertion.

         2. Plaintiff's Motion for Summons (filing no. 23) is granted in part, and denied in part, in accordance with this Memorandum and Order.

         3. Plaintiff's Eighth Amendment claims against Dr. Jeffrey Kasselman in his individual capacity, as well as in his official capacity for prospective injunctive relief only, may proceed to service of process. Plaintiff's official-capacity claims against Dr. Kasselman for monetary and declaratory relief are dismissed.

         4. For service of process on defendant Dr. Jeffrey Kasselman in his official capacity, the clerk of the court is directed to complete a summons form and USM-285 form for defendant Dr. Jeffrey Kasselman using the address “Office of the Nebraska Attorney General, 2115 State Capitol, Lincoln, NE 68509, ” and forward them together with a copy of the Amended Complaint (filing no. 21), a copy of the court's August 24, 2018 Memorandum and Order (filing no. 16), and a copy of this Memorandum and Order to the Marshals Service. The Marshals Service shall serve defendant Dr. Jeffrey Kasselman in his official capacity at the office of the Nebraska Attorney General, 2115 State Capitol, Lincoln, NE 68509. Federal Rule of Civil Procedure 4(j)(2); Neb. Rev. Stat. § 25-510.02 (Reissue 2016).[2]

         5. For service of process on defendant Dr. Jeffrey Kasselman in his individual capacity, the clerk of the court is directed to complete a summons form and a USM-285 form for defendant Dr. Jeffrey Kasselman using the address “Tecumseh State Correctional Institution, 2725 Hwy. 50, Tecumseh, NE 68450, ” and forward them together with a copy of the Amended Complaint (filing no. 21), a copy of the court's August 24, 2018 Memorandum and Order (filing no. 16), and a copy of this Memorandum and Order to the Marshals Service. The Marshals Service shall serve defendant Dr. Jeffrey Kasselman personally in his individual capacity at the Tecumseh State Correctional Institution, 2725 Hwy. 50, Tecumseh, NE 68450. Service may also be ...


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