Arkulari v. Kasselman

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HANK ARKULARI,
Plaintiff,
vs.
PRISON MEDICAL STAFF - JON DOE
(UK), SCOTT R. FRAKES, Administration
Director; and JEFFREY KASSELMAN,
Medical Director;
Defendants.
8:22CV446
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Hank Arkulari’s Amended Complaint,
Filing No. 15, filed in response to the Court’s previous Memorandum and Order (the “Initial
Review Order”), Filing No. 14. The Court now conducts an initial review of Plaintiff's
Amended Complaint to determine whether summary dismissal is appropriate under 28
U.S.C. § 1915(e)(2). The Court's previous discussion of each of Plaintiff's potential claims
will not be repeated here but is incorporated by this reference into the Court's initial review
of Plaintiff's Amended Complaint. For the reasons discussed, Plaintiff’s claims may
proceed only against Defendant Jeffrey Kasselman in his individual capacity.
I. REVIEW OF AMENDED COMPLAINT
A. Sufficiency of Original Complaint
Plaintiff’s original Complaint, Filing No. 1, brought claims against several, unnamed
prison staff members and administrators in their official and individual capacity. The Court
dismissed the claims against Defendants in their official capacities because such claims
were barred by sovereign immunity. Filing No. 14 at 5. The Court also concluded that
Plaintiff’s claims against the “Prison Medical Staff” were subject to dismissal because the
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claims failed to identify wrongdoing by any singular member or members of the Prison
Medical Staff. Id. at 6. Plaintiff was nevertheless given leave to amend his Complaint to
identify specific members of the prison medical staff and allege specific facts of their
wrongdoing, provided such facts could be credibly alleged. Id. at 6. The Court also
concluded that Plaintiff’s claims against “Prison Medical Director” and “Prison
Administration” were subject to dismissal.
B. Summary of Amended Complaint
Plaintiff brings this 42 U.S.C. § 1983 action against three defendants: Jeffrey
Kasselman, named as the “Medical Director” for the Nebraska Department of Correctional
Services (NDCS); Scott R. Frakes, “Prison Administration Director” for NDCS; and
Jane/Jon Doe, identified as unknown Prison Medical Staff. Filing No. 15 at 2-3. Plaintiff
sues each defendant in both their individual and official capacities. Id. at 2-3. Plaintiff
was diagnosed with Hepatitis C shortly after he arrived at the NDCS on August 27, 2022.
Id. at 14. Despite the diagnosis, Plaintiff alleges that Defendants failed to provide
treatment for Hepatitis C. See Id. at 4, 14. Plaintiff asserts that failing to treat his Hepatitis
C caused him to contract cirrhosis of the liver. Id. at 16. He also asserts that, without
immediate treatment, the Hepatitis C is life threatening because Plaintiff has an increased
risk of liver cancer, and the Hepatitis C may spread throughout his body. Id. at 16.
Plaintiff alleges that the Prison Medical Staff told Plaintiff they could not provide
Hepatitis C treatment because they had to follow prison guidelines that excluded Plaintiff
from treatment. Id. at 14. “Jon Doe” of the Prison Medical Staff told Plaintiff he did not
meet requirements for treatment when Plaintiff first entered prison, that he would be
placed on chronic care and be monitored, that treatment was expensive, and that Prison
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Medical Staff had to follow protocols. Id. at 14-15. Jon Doe Prison Medical Staff provided
no other explanation as to why Plaintiff did not qualify for medical treatment. Id. at 15.
Plaintiff also asserts that Jon Doe Prison Medical Staff demonstrated a hostile attitude
toward Plaintiff when he sought answers about medical treatment. Id. at 15. Plaintiff
asserts he exhausted all prison remedies, but the responses to his grievances indicated
that Plaintiff did not meet the criteria for treatment. Id. at 15. Plaintiff asserts that he
never received Hepatitis C medical treatment, never saw Prison Medical Staff to be
monitored, and “never came across any Hepatitis C committee.” Id. at 15.
Plaintiff alleges Frakes decided which inmates received Hepatitis C treatment even
though he lacked specialized medical training. Id. at 12. Plaintiff further alleges Frakes
failed to ensure Plaintiff received professional medical care for Hepatitis C. Id. at 16.
Kasselman oversaw all medical decisions and decided which prisoners required
the attention of a specialist. Id. at 13. Based on his guidelines and rules, Kasselman
prohibited Plaintiff from receiving Hepatitis C treatment. Id. at 15. Plaintiff also alleges
Kasselman violated his civil rights by failing to take reasonable measures to prevent
Plaintiff’s Hepatitis C from spreading throughout the prison. Id. at 12
In sum, Plaintiff alleges that Defendants violated his statutory and constitutional
rights by denying him necessary Hepatitis C treatment. Id. at 3, 12. In so doing,
Defendants deprived Plaintiff of treatment for a serious medical need. Id. at 12, 16.
Plaintiff seeks declaratory relief, compensatory and punitive damages, and attorney's
fees and costs. Id. at 16.
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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).
“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)). 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.”).
“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). This means that “if the essence of an allegation
is discernible, even though it is not pleaded with legal nicety, then the district court should
construe the complaint in a way that permits the layperson’s claim to be considered within
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the proper legal framework.” Stone v. Harry, 364 F.3d 912, 915 (8th Cir. 2004). However,
even pro se complaints are required to allege facts which, if true, state a claim for relief
as a matter of law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir. 1980).
III. DISCUSSION
A. Official Capacity Claims
Plaintiff again asserts claims against all Defendants in their official capacities. As
stated in the Initial Review Order, Filing No. 14 at 5, the 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., Dover Elevator Co., 64 F.3d at 444; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th
Cir. 1981). In the Amended Complaint, Plaintiff seeks, in part, monetary damages from
Defendants in their official capacities. To the extent Plaintiff sues Defendants in their
official capacities for money damages, Plaintiff’s claims are barred.
B. Individual Capacity Claims
Construed liberally, Plaintiff claims Defendants, in their individual capacities, were
deliberately indifferent to Plaintiff’s serious medical needs by preventing him from
receiving necessary treatment for Hepatitis C. To establish an Eighth Amendment claim
for deprivation of medical care, an inmate must allege that a prison official was
deliberately indifferent to the inmate's serious medical needs. Schaub v. VonWald, 638
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F.3d 905, 914 (8th Cir. 2011). Deliberate indifference “is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious consequence of
his action.” Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410 (1997).
“This requires a two-part showing that (1) the inmate suffered from an objectively serious
medical need, and (2) the prison official knew of the need yet deliberately disregarded it.”
Schaub, 638 F.3d at 914. (internal quotations and citations omitted). “A serious medical
need is one that has been diagnosed by a physician as requiring treatment, or one that
is so obvious that even a layperson would easily recognize the necessity for a doctor's
attention.” Id. (internal quotation and citation omitted).
Deliberate indifference is equivalent to criminal-law recklessness, which is
more blameworthy than negligence, yet less blameworthy than purposefully
causing or knowingly bringing about a substantial risk of serious harm to the
inmate. An obvious risk of harm justifies an inference that a prison official
subjectively disregarded a substantial risk of serious harm to the inmate.
Deliberate indifference must be measured by the official's knowledge at the
time in question, not by hindsight's perfect vision.
Id. at 914-15 (internal quotations and citations omitted). The Court considers whether the
allegations in the Amended Complaint meet this high standard to state a claim against
each Defendant.
1. Claims Against “Prison Medical Staff”
In its Initial Review Order, the Court noted that, in general, a plaintiff may not name
fictitious parties as defendants in a lawsuit. Phelps v. United States, 15 F.3d 735, 739
(8th Cir. 1994). However, dismissal of fictitious parties is only appropriate “when it
appears that the true identity of the defendant cannot be learned through discovery or the
court's intervention.” Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985). An action may
proceed against a fictious party so long as the complaint makes “allegations specific
enough to permit the identity of the party to be ascertained after reasonable discovery.”
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Est. of Rosenberg by Est. of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th
Cir. 1995); see also Salinas v. Clark, No. 1:22-CV-159, 2023 WL 2345998, at *4 (E.D.
Mo. Mar. 3, 2023) (permitting claims to proceed because plaintiff made specific
allegations against John Doe defendants) (citing Rosenberg, 56 F.3d at 37). The Court
previously concluded that Plaintiff’s original Complaint failed to identify any specific,
actionable allegations against any single member of the Prison Medical Staff. Filing No.
14 at 6. Accordingly, the allegations were insufficient to identify the fictitious party even
after reasonable discovery. Id. at 6. The Court granted Plaintiff leave to amend his
Complaint to identify specific members of the Prison Medical Staff and allege specific
facts of their wrongdoing. Id. at 13-14.
The allegations in the Amended Complaint are still insufficient to identify any
wrongdoing by a specific Prison Medical Staff member. Plaintiff alleges Medical Staff,
including “Jon Doe Prison Medical Staff,” denied Plaintiff treatment because Medical Staff
had to follow prison guidelines. Filing No. 15 at 14. Plaintiff also asserts that Jon Doe
Prison Medical Staff demonstrated a hostile attitude toward Plaintiff and failed to explain
why Plaintiff did not meet the criteria for Hepatitis C treatment. Id. at 15. Although
narrowed to “Jon Doe,” these broad allegations, even when considered with the materials
attached to Plaintiff’s original Complaint,1 do not make specific allegations against any
specific member of the Prison Medical Staff. The allegations are still insufficient to identify
the party even after reasonable discovery.
1 The local rules provide, “In considering pro se litigants’ amended pleadings, the court may consider the
amended pleading as supplemental to, rather than as superseding, the original pleading, unless the
pleading states that it supersedes the prior pleading.” NECivR 15.1(b).
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Moreover, the allegations against Prison Medical Staff are not actionable.
Plaintiff’s principal complaint is that Prison Medical Staff failed to provide timely treatment
for his Hepatitis C. The Eighth Circuit has held that “[w]hen the inmate alleges that a
delay in medical treatment rises to the level of an Eighth Amendment violation, the
objective seriousness of the deprivation should also be measured by reference to the
effect of delay in treatment.” Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005)
(cleaned up; emphasis in original). A decision to initially administer conservative
treatment does not necessarily constitute deliberate indifference.2 Differences of opinion,
mistakes, and even medical malpractice do not meet the exacting standard of deliberate
indifference. See Jones v. Norris, 310 F.3d 610, 612 (8th Cir. 2002) (“At best, [the
plaintiff's] allegations state a difference in opinion between himself and his doctors or
allege a mistake in classification or treatment. Neither differences of opinion nor medical
malpractice state an actionable Constitutional violation.”).
Additionally, to state a valid § 1983 claim against each named individual defendant,
Plaintiff must provide factual allegations describing how each defendant was directly
responsible or personally involved in actions that deprived him of his constitutional rights.
Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985). However, Plaintiff makes no
allegation that any member of the Prison Medical Staff personally made the decision to
withhold treatment. Plaintiff repeatedly asserts that Jon Doe Prison Medical Staff told him
2 See, e.g., Fourte v. Faulkner Cty., Ark., 746 F.3d 384, 386 (8th Cir. 2014) (jail physician and nurse were
not deliberately indifferent when they began logging inmate's daily blood pressure after inmate complained,
when they delayed prescribing medication after several high readings, and when they failed to write a
second prescription immediately after the first one went missing); Jenkins v. Cty. of Hennepin, 557 F.3d
628, 632 (8th Cir. 2009) (holding defendant who decided to postpone x-ray based on medical judgment that
injury was not urgent entitled to summary judgment); Blondheim v. County of Olmsted, 47 Fed. App'x 766
(8th Cir. 2002) (unpublished) (doctors at correctional facility were not deliberately indifferent by treating
inmate's torn ACL conservatively over 4 years, mainly with Tylenol and ace bandages, even though they
knew outside orthopedic surgeon had recommended surgery).
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they had to follow prison guidelines for determining which inmates receive Hepatitis C
treatment. See Filing No. 15 at 14-15. The materials attached to the original Complaint
also suggest that Prison Medical Staff regularly evaluated Plaintiff to determine whether
he met criteria. See, e.g., Filing No. 1 at 20; Filing No. 1 at 21; Filing No. 1 at 31. Plaintiff’s
allegations thus fail to allege that any member of the Prison Medical Staff was personally
responsible for determining whether Plaintiff received treatment, much less that any
member of the Prison Medical Staff was deliberately indifferent to Plaintiff. Accordingly,
the Amended Complaint fails to meet the exacting standard of stating a claim against any
nonpolicy making member of the Prison Medical Staff.
2. Claims Against Scott Frakes & Jeffrey Kasselman
For Plaintiff’s claims to proceed against Frakes and Kasselman, Plaintiff must first
sufficiently allege each Defendant’s personal involvement in the alleged deprivation. To
show personal involvement, Plaintiff must allege the Defendants were not only “aware of
facts from which the inference could be drawn that a substantial risk of serious harm
existed,” but that he “also dr[e]w the inference.” Reynolds v. Dormire, 636 F.3d 976, 979
(8th Cir. 2011) (quoting Davis v. Oregon Cty., 607 F.3d 543, 548-49 (8th Cir. 2010)).
Prison supervisors can incur liability for their “personal involvement in a constitutional
violation, or when their corrective inaction amounts to deliberate indifference to or tacit
authorization of the violative practices.” Luckert v. Dodge Cnty., 684 F.3d at 817 (citing
Choate v. Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993)).
Plaintiff has not sufficiently alleged that Frakes had any personal involvement in
the alleged violation, nor has Plaintiff alleged that Frakes tacitly authorized any
constitutional violation. Although Plaintiff vaguely alleges that Frakes lacked medical
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training but decided which prisoners received treatment, his only explanation for this
allegation is that Frakes was “responsible for ensuring all Prison Medical Staff” comply
with the Constitution. Filing No. 15 at 13. Plaintiff also alleges that Frakes “failed to
oversee” that Plaintiff needed professional medical care. Id. at 16. These allegations are
too vague to support a claim against Frakes. Plaintiff cannot rely on his claims against
prison employees to support a claim against Frakes because “[i]t is well settled that §
1983 does not impose respondeat superior liability.” Hughes v. Stottlemyre, 454 F.3d
791, 798 (8th Cir. 2006) (internal quotation marks omitted). Moreover, Frakes’ general
responsibilities for overseeing prison operations are not sufficient to show he had
personal involvement in any wrongdoing. See Rosenberg, 56 F.3d at 37 (holding “[t]he
general responsibility of a warden for supervising the operation of a prison is not sufficient
to establish personal liability” in a civil rights action). Accordingly, Plaintiff has not stated
a claim against Frakes.
For purposes of initial review, Plaintiff’s claims against Kasselman are a closer
question. As noted above, a claim of deliberate indifference to medical needs carries
both an objective and subjective component. Wilson v. Seiter, 501 U.S. 294, 298 (1991).
The inmate must show (1) an objectively serious medical need; and (2) the defendants
actually knew of the medical need but were deliberately indifferent to it. See Langford v.
Norris, 614 F.3d 445, 460 (8th Cir. 2010); Jones v. Minnesota Dep't of Corr., 512 F.3d
478, 481–82 (8th Cir. 2008); Albertson v. Norris, 458 F.3d 762, 765 (8th Cir. 2006);
Grayson v. Ross, 454 F.3d 802, 808-09 (8th Cir. 2006). The Amended Complaint satisfies
the objective component because Plaintiff alleged he suffered from Hepatitis C. Hepatitis
C is a serious medical need. See Bender v. Regier, 385 F.3d 1133, 1137 (8th Cir. 2004);
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Clay v. Corizon Health LLC, No. 4:21CV877, 2021 WL 4963520, at *5 (E.D. Mo. Oct. 26,
2021). Plaintiff also alleges that, because of the lack of treatment for Hepatitis C, he
suffers from cirrhosis of the liver and has an increased risk of contracting liver cancer.
Filing No. 15 at 16. Thus, for the purposes of initial review, the objective component is
met.
To meet the subjective component, “the failure to treat a medical condition does
not constitute punishment within the meaning of the Eighth Amendment unless prison
officials knew that the condition created an excessive risk to the inmate's health and then
failed to act on that knowledge.” Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996); see also
Roberson v. Goodman, 293 F. Supp. 2d 1075, 1080 (D.N.D. 2003), aff'd, 114 F. App'x
772 (8th Cir. 2004). To state a claim for relief for failure to treat Hepatitis C, courts have
held that a Plaintiff must allege a specific risk of severe illness and failure to treat, see,
e.g., Hankins v. Russell, No. 4:15-cv-00697, Doc. No. 4 (E.D. Mo. May 5, 2015), or
specific details of an arbitrary policy in treating Hepatitis C patients, see Postawko v.
Missouri Dep't of Corr., No. 2:16-CV-04219-NKL, 2017 WL 1968317, at *8 (W.D. Mo. May
11, 2017); Abu-Jamal v. Wetzel, No. 3:16-CV-2000, 2017 WL 34700, at *16 (M.D. Pa.
Jan. 3, 2017).
Plaintiff asserts that Kasselman was the policymaker, that he oversaw all medical
decisions, and that he determined which prisoners receive treatment. Filing No. 15 at 13.
Plaintiff also alleges that Kasselman’s direction prohibited Plaintiff from receiving
Hepatitis C medication. Id. at 15. The failure to treat Plaintiff’s Hepatitis C caused
Plaintiff’s cirrhosis of the liver and exposed him to increased risk of liver cancer. Id. at 16.
The Court recognizes that several courts have concluded that a defendant is not
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deliberately indifferent for treating Hepatitis C through monitoring but not drug therapy.
See, e.g., Carlson v. Weber, No. 08-CV-4101, 2010 WL 3701359, at *6 (D.S.D. Sept. 14,
2010). However, as noted in the Initial Review Order, many of these courts have reached
this conclusion only after permitting the case to proceed to discovery and summary
judgment. See, e.g., Doering v. Kelley, No. 5:17CV00125, 2018 WL 1885506, at *5 (E.D.
Ark. Mar. 27, 2018), report and recommendation adopted, No. 5:17-CV-125, 2018 WL
1875477 (E.D. Ark. Apr. 19, 2018), aff'd, 759 F. App'x 556 (8th Cir. 2019); Carlson, 2010
WL 3701359, at *6. At this stage in the proceedings, Plaintiff has alleged enough for
Plaintiff's claim against Kasselman to proceed.
The Court cautions Plaintiff that this is only a preliminary determination based on
his allegations and is not a determination of the merits of his claims or potential defenses
thereto. The Eighth Circuit has held that “[w]hen the inmate alleges that a delay in medical
treatment rises to the level of an Eighth Amendment violation, the objective seriousness
of the deprivation should also be measured by reference to the effect of delay in
treatment.” Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005) (cleaned up; emphasis
in original). To establish this effect, Plaintiff will eventually be required to “‘place verifying
medical evidence in the record to establish the detrimental effect of delay in medical
treatment . . . .’” Id. (quoting Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997)).
C. Request for Appointment of Counsel
The Court denied Plaintiff’s previous Motion to Appoint Counsel, without prejudice
to reassertion. Filing No. 14 at 13. Within the Amended Complaint, Plaintiff requests that
the Court reconsider whether to appoint counsel if the Court later finds that Plaintiff’s case
raises “important or complex issues.” Filing No. 15 at 17. The Court does not interpret
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this statement to be a renewed motion to immediately appoint counsel. However, to the
extent Plaintiff again requests appointment of counsel, the request is denied, without
prejudice to reassertion. As stated in its previous Memorandum and Order, “[r]elevant
criteria for determining whether counsel should be requested include the factual and legal
complexity of the case, the plaintiff’s ability to investigate the facts and to present the
claims, and the presence or absence of conflicting testimony.” Recca v. Omaha Police
Dep’t, 859 F. App'x 3, 4 (8th Cir. 2021) (citing Davis v. Scott, 94 F.3d 444, 447 (8th Cir.
1996)). The Court has carefully reviewed the record and finds there is no need to appoint
counsel at this time. Subsequent discovery and proceedings may provide the Court with
sufficient reason to appoint counsel at a later date.
IV. CONCLUSION
In light of the liberal construction afforded to pro se litigants' pleadings, the Court
concludes that Plaintiff has sufficiently alleged a claim for deliberate indifference to
Plaintiff’s serious medical needs against Defendant Jeffrey Kasselman in his individual
capacity. Accordingly, this claim may proceed to service of process. All official capacity
claims and all other claims against all other Defendants are dismissed.
IT IS THEREFORE ORDERED that:
1. Only Plaintiff's claim for deliberate indifference to medical needs against
Jeffrey Kasselman, in his individual capacity, may proceed.
2. Plaintiff’s claims against Scott R. Frakes, and Jane/Jon Doe, identified as
unknown Prison Medical Staff, in their individual and official capacities, and against
Jeffrey Kasselman in his official capacity, are dismissed.
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3. The Clerk of Court is directed to terminate Scott R. Frakes, and Jane/Jon
Doe, identified as unknown Prison Medical Staff, as defendants in this case. The Clerk
of Court is further directed to update the caption to reflect that Jeffrey Kasselman, Medical
Director, in his individual capacity, is the only remaining defendant.
4. For service of process on Kasselman, in his individual capacity, the Clerk
of Court is directed to complete a summons and USM-285 form for Kasselman using the
following address:
Office of the Nebraska Attorney General
2115 State Capitol
Lincoln, NE 68509.
5. The Clerk of Court is further directed to complete a second set of summons
and USM-285 forms for Kasselman in his individual capacity using the address contained
in Case No. 4:23CV3214, Filing No. 22 at 3, and to file under seal any document
containing Kasselman’s personal address.
6. The Clerk of Court shall forward both sets of summons forms and USM-285
forms together with sufficient copies of the Complaint, Filing No. 1, and the Amended
Complaint, Filing No. 15, and this Memorandum and Order to the United States Marshals
Service.
7. The Marshals Service shall serve Defendant Kasselman in his individual
capacity by “leaving the summons at the office of the Attorney General with the Attorney
General, deputy attorney general, or someone designated in writing by the Attorney
General, or by certified mail or designated delivery service addressed to the office of the
Attorney General.” Neb. Rev. Stat. § 25-510.02(1) (prescribed method for serving the
State of Nebraska or any state agency); see also Federal Rule of Civil Procedure 4(j)(2);
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Neb. Rev. Stat. § 25-511 (“Any employee of the state, as defined in section 81-8,210,
sued in an individual capacity for an act or omission occurring in connection with duties
performed on the state's behalf, regardless of whether the employee is also sued in an
official capacity, must be served by serving the employee under section 25-508.01 and
also by serving the state under section 25-510.02.”).
8. The Marshals Service shall also serve Defendant Kasselman in his
individual capacity by certified mail or other authorized method of service at the address
indicated above. See Federal Rule of Civil Procedure 4(e); Neb. Rev. Stat. § 25-508.01
(prescribed method for serving an individual).
9. For service by certified mail or designated delivery service, the Marshals
Service shall serve Defendants within ten days of the Clerk of the Court issuing and
forwarding the summons to the Marshals Service. See Neb. Rev. Stat. § 25-505.01(1).
10. The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.
11. Federal Rule of Civil Procedure 4(m) requires service of the complaint on a
defendant within 90 days of filing the complaint. However, Plaintiff is granted, on the
Court's own motion, an extension of time until February 5, 2026, to complete service of
process.
12. Plaintiff is hereby notified that failure to obtain service of process on the
Defendants within 90 days of the date of this order may result in dismissal of this matter
without further notice. A defendant has 21 days after receipt of the summons to answer
or otherwise respond to a complaint.
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13. The Clerk of Court is directed to set a case management deadline in this
case with the following text: February 13, 2026: service of process to be completed.
14. The parties are bound by the Federal Rules of Civil Procedure and by the
Local Rules of this Court. Plaintiff shall keep the Court informed of his current address at
all times while this case is pending. Failure to do so may result in dismissal.
Dated this 14th day of November, 2025.
BY THE COURT:
Joseph F. Bataillon
Senior United States District Judge
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