United States District Court, D. Minnesota
David E. Ricketts, Plaintiff,
Officer Maggard, B. Birkolz, Jessica Feda, and Dr. Nassaralla, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
Wilhelmina M. Wright United States District Judge
matter is before the Court on the March 21, 2019 Report and
Recommendation (R&R) of United States Magistrate Judge
Hildy Bowbeer. (Dkt. 8.) The R&R recommends dismissing
without prejudice the claims of Plaintiff David E. Ricketts
against Defendant Dr. Nassaralla and denying Ricketts's
motion for a preliminary injunction.Ricketts filed timely
objections to the R&R. For the reasons addressed below,
the Court adopts the R&R, denies Ricketts's motion
for a preliminary injunction, and dismisses without prejudice
Ricketts's claims against Dr. Nassaralla.
currently is incarcerated at Federal Medical
Center-Rochester. In this civil rights action, Ricketts
alleges three counts against Defendants Officer Maggard, B.
Birkolz, Jessica Feda, and Dr. Nassaralla: (1) failure to
protect in violation of the Eighth Amendment to the United
States Constitution, (2) retaliation, and (3) deliberate
indifference to Ricketts's serious medical need in
violation of the Eighth, Fifth, and Fourteenth Amendments to
the United States Constitution. Because the R&R concludes
that Ricketts's complaint contains insufficient factual
allegations against Dr. Nassaralla, the R&R recommends
dismissing Ricketts's complaint against Dr. Nassaralla
for failure to state a claim upon which relief can be
granted. See 28 U.S.C. § 1915A(a), (b)(1)
(authorizing a district court to dismiss a prisoner's
civil action if the complaint fails to state a claim upon
which relief may be granted). The R&R also recommends
that the Court deny Ricketts's preliminary injunction
motion without prejudice.
the R&R was issued, Ricketts filed a self-styled
“Bivens Action Motion TORT CLAIM, ” (Dkt. 15),
and a “Motion to Amend - Addendum Capacity
Clarification, ” (Dkt. 16). On April 22, 2019, the
magistrate judge issued an order acknowledging these and
other submissions filed after the R&R was issued. (Dkt.
18.) In the April 22, 2019 Order, the magistrate judge
construed Ricketts's “Bivens Action Motion TORT
CLAIM” as an amended complaint and as the operative
pleading in this case. The amended complaint includes the
allegations and claims contained in the original complaint as
well as additional allegations and claims, some of which are
against Dr. Nassaralla. The March 21, 2019 R&R remains
objects to the R&R's recommendation that the Court
dismiss his claims against Dr. Nassaralla. A district court
reviews de novo those portions of the R&R to which
specific objections are made. 28 U.S.C. § 636(b)(1). In
doing so, the district court may accept, reject, or modify,
in whole or in part, the findings or recommendations of the
magistrate judge. Id.; accord Fed. R. Civ.
P. 72(b)(3); LR 72.2(b)(3).
complaint is subject to review under Title 28, United States
Code, Section 1915A(a), which provides that “[t]he
court shall review . . . a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.” The
Court shall dismiss any complaint that fails to state a claim
upon which relief may be granted. 28 U.S.C. § 1915A(b).
determining whether a complaint states a claim upon which
relief may be granted, a district court must accept as true
all of the factual allegations in the complaint and draw all
reasonable inferences in the plaintiff's favor.
Blankenship v. USA Truck, Inc., 601 F.3d 852, 853
(8th Cir. 2010). The factual allegations need not be
detailed, but they must be sufficient to “raise a right
to relief above the speculative level” and “state
a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007). A claim is plausible if the facts alleged in the
complaint, when taken as true, allow a district court to draw
a reasonable inference that the defendant is liable for the
alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662,
R&R concludes that Ricketts fails to state a claim
against Dr. Nassaralla because Ricketts's original
complaint contains no specific factual allegations against
Dr. Nassaralla. But Ricketts's original complaint is no
longer the operative pleading, and in conducting a de novo
review of the R&R's recommendation to dismiss
Ricketts's claims against Dr. Nassaralla, the Court must
consider the allegations in Ricketts's amended complaint.
read liberally, the amended complaint appears to claim
deliberate indifference to Ricketts's serious medical
needs by Dr. Nassaralla in violation of the Eighth Amendment
to the United States Constitution. Inmates do not have a
constitutional right to receive a particular or requested
course of treatment. Dulany v. Carnahan, 132 F.3d
1234, 1239 (8th Cir. 1997). To plead a deliberate
indifference claim, a plaintiff must allege that he had an
objectively serious medical need, that prison officials
actually knew of this need, and prison officials deliberately
disregarded this serious medical need. Id.
Deliberate indifference is “an onerous standard,
” Martinson v. Leason, 22 F.Supp.3d 952, 960
(D. Minn. 2014) (internal quotation marks omitted), that
requires a highly culpable state of mind, Choate v.
Lockhart, 7 F.3d 1370, 1374 (8th Cir. 1993).
facts in the amended complaint as to Dr. Nassaralla are as
follows: (1) Dr. Nassaralla was Ricketts's primary care
giver, (2) Dr. Nassaralla acted “ ‘under color of
Federal Law, ” (3) Ricketts told Dr. Nassaralla during
his appointments that he was at risk of developing pressure
sores, (4) Dr. Nassaralla had the ability to order medical
devices and tests for Ricketts, and (5) Dr. Nassaralla was
deliberately indifferent to Ricketts's medical needs when
Dr. Nassaralla failed to order the medical devices and tests
that Ricketts requested. These allegations do not plausibly
allege that Dr. Nassaralla knew of and, with a “highly
culpable state of mind approaching actual intent, ”
deliberately disregarded Ricketts's serious medical
needs. See Choate, 7 F.3d at 1374. The amended
complaint, which is more detailed than the original
complaint, nonetheless fails to cure the pleading
deficiencies identified in the R&R as to Dr. Nassaralla.
For these reasons, the Court overrules Ricketts's
objections and adopts the R&R.
on the foregoing analysis and all the files, records and