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Alspaugh v. Nebraska Department of Corrections

United States District Court, D. Nebraska

August 12, 2019

CLARENCE EUGENE ALSPAUGH III, Plaintiff,
v.
NEBRASKA DEPARTMENT OF CORRECTIONS, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge

         Plaintiff, an inmate at the Lincoln Community Corrections Center, brings this 42 U.S.C. § 1983 action for what he characterizes as “medical negligence” against the Nebraska Department of Corrections. Plaintiff has been given leave to proceed in forma pauperis. (Filing No. 8.) The court now conducts an initial review of the Complaint (Filing No. 1) to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.

         I. SUMMARY OF COMPLAINT

         Plaintiff alleges that while he was being housed at the Nebraska State Penitentiary, he began experiencing severe pain in his right leg in August 2016, which he surmised was a blood clot. Plaintiff repeatedly requested medical help for the worsening pain, which resulted in four months of examinations, medications, diagnostic tests, and eventually surgery, [1] followed by physical therapy. The medical records attached to Plaintiff's Complaint indicate that after Plaintiff first complained about his leg on August 28, 2016 (Filing No. 1 at CM/ECF p. 24), he was promptly[2] and repeatedly seen by prison medical personnel; given pain medications prescribed by an outside physician; received X-rays, a nerve-conduction study, at least two MRIs, and an EMG; consulted with an outside neurosurgeon, orthopedic surgeon, and physiatrist; and underwent back surgery on December 30, 2016, just four months after his first complaint. (Id. at pp. 24-110.) Nevertheless, Plaintiff complains, “If I wasn't locked up, I would have been diagnosed probably within a week and got the proper medical care.” (Id. at p. 22.)

         Plaintiff demands $250, 000, complaining that the prison “did not follow up and make the right decisions after they eliminated certain things they thought the problem could be.” (Id. at p. 5.) Plaintiff claims two doctors told him that if his condition had been diagnosed sooner, he would have had a “100% recovery, ” instead of a permanent disability.[3] (Id. at pp. 13, 22.)

         II. 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 attempts to allege a federal constitutional claim. 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. Proper Defendants

         The Plaintiff sues the Nebraska Department of Correctional Services (“NDCS”). States or governmental entities that are considered arms of the state are not suable “persons” within the meaning of 42 U.S.C. § 1983, Will v. Michigan Dep't of State Police, 491 U.S. 58, 70 (1989), and suits for money damages against the state or its agencies are barred by the Eleventh Amendment. Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007) (Eleventh Amendment bars suit against state agency for any kind of relief); Nix v. Norman, 879 F.2d 429, 431-32 (8th Cir.1989) (suit brought solely against state or state agency is proscribed by Eleventh Amendment); see also Brown v. Arkansas Dep't of Human Servs., 452 Fed.Appx. 690, 693 (8th Cir. 2011) (unpublished) (plaintiff's § 1983 claims against state agency barred by Eleventh Amendment). Accordingly, the NDCS must be dismissed for failure to state a claim upon which relief can be granted.

         B. Deliberate Indifference to ...


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