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Mixon v. Douglas County Dept. of Corrections

United States District Court, D. Nebraska

January 2, 2019

MATTHEW O. MIXON, Plaintiff,
v.
DOUGLAS COUNTY DEPT. OF CORRECTIONS, MEDICAL DEPARTMENT EMPLOYEES, DOUGLAS COUNTY NEBRASKA, all as Defendants; MARK FOXALL, Director; DOCTOR ASH, CORRECT CARE SOLUTIONS, and DOUGLAS COUNTY DEPT. OF CORRECTIONS, MEDICAL CARE, Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge

         This matter is before the court upon review of Plaintiff's Second Amended Complaint (filing no. 44) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.

         I. BACKGROUND

         Plaintiff, an inmate currently in the custody of the Nebraska Department of Correctional Services (“NDCS”), originally filed this action on September 6, 2017, seeking damages for alleged injuries and rights violations relating to his 2015 arrest, conviction, and incarceration in the Douglas County Department of Corrections (“DCDC”). Upon initial review, the court dismissed Plaintiff's claims arising out of his arrest and criminal prosecution against several defendants but permitted Plaintiff to file an amended complaint with respect to his Eighth Amendment deliberate indifference claim against Douglas County and/or specific DCDC medical employees. (See Filing No. 35.)

         Plaintiff filed his First Amended Complaint on November 26, 2018, and named the Douglas County Correctional Center, DCDC Director Mark Foxall, Correct Care Solutions, Dr. Ash, and DCDC Medical Department Employees as defendants in their official and individual capacities. (Filing No. 36.) Upon review, the court dismissed Plaintiff's claims against the Douglas County Correctional Center or DCDC as it is a non-suable entity. The court also dismissed Plaintiff's claims against Defendants in their official capacities and against Foxall and Dr. Ash in their individual capacities for failure to state a claim. However, the court determined that Plaintiff's allegations that the unspecified DCDC medical employees failed to provide him his necessary seizure medication resulting in injuries to Plaintiff stated a plausible claim of deliberate indifference to Plaintiff's medical needs under the Eighth and Fourteenth Amendments against the DCDC medical employees in their individual capacities. Because Plaintiff failed to provide “any identifying information about specific DCDC medical employees who he alleges were deliberately indifferent to his medical needs as directed by the court in its Memorandum and Order on initial review, ” the court gave Plaintiff leave to file a second amended complaint against specific, named defendants. (Filing No. 42 at CM/ECF p. 9 (internal quotation omitted).) In particular, the court advised Plaintiff:

2. . . . . In his second amended complaint, Plaintiff must identify each defendant by name and set forth all of Plaintiff's claims (and any supporting factual allegations) against that defendant. Plaintiff should be mindful to explain in his second amended complaint what each defendant did to him, when the defendant did it, and how the defendant's actions harmed him.
3. In the event that Plaintiff files a second amended complaint, Plaintiff shall restate the allegations of the Amended Complaint (filing no. 36) and any new allegations. Failure to consolidate all claims into one document may result in the abandonment of claims. Plaintiff is warned that a second amended complaint will supersede, not supplement, his prior pleadings.

(Filing No. 42 at CM/ECF p. 10.)

         Plaintiff filed his Second Amended Complaint on June 5, 2019. (Filing No. 44.)

         II. SUMMARY OF SECOND AMENDED COMPLAINT

         Plaintiffs Second Amended Complaint names the “Douglas County Department of Corrections, Medical Care” (hereinafter “DCDC Medical Care”) as the sole defendant in its individual capacity. (Filing No. 44 at CM/ECF p. 2.) As alleged by Plaintiff, the facts underlying his claim are as follows:

I was not given the proper medical attention. The Defendant's] failur[e] to provide reasonable and humane medical treatment constitutes a violation of the Plaintiff's right to due process under the Fourteenth Amendment and his right under the Eight[h] Amendment to be free from cruel and unusual punishment by not giving Plaintiff his medication for over 30 days from 11-21-2015 to 12-25-2015 no seizure medication Vimpat 400 mg tabs a day.
. . . .
I black-out. I was finally sent to medical and was s[e]en, but was not given the medication I need which was never presc[r]ibe to me once I run out, was sent back to the unit and I fell out again and that time I cut my face from hitting it on the conc[rete] floor and had a con[cu]ssion and given a ice pack and my medication and never had another seizure as long as I have my medic[a]tion. I have real ...

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