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Russell v. Cherry1/28/2003
(not designated for permanent publication)
Patrick Ronald Russell, a prisoner in the custody of the Nebraska Department of Correctional Services (DCS), filed district court claims under 42 U.S.C. § 1983 (1994 & Supp. III 1997), the Eighth Amendment to the U.S. Constitution, and the Nebraska State Tort Claims Act (STCA) for denial of adequate medical care. However, Russell failed to meet procedural requirements of the Prison Litigation Reform Act (PLRA) and the STCA. We therefore dismiss his appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On August 14, 1996, Russell filed a pro se petition in the district court for Lancaster County. After several demurrers and amended petitions, Russell filed a third amended petition on October 31, 1997. This petition alleged, in essence, that Russell had been denied proper medical care. Russell named as defendants John Cherry and Reynolds Maixner, doctors at the Nebraska State Penitentiary (NSP); Randall Lienemann, an NSP physician's assistant; Frank Hopkins, the NSP warden; Harold Clarke, the director of DCS; Robert Whitson, the medical administrator for DCS; and Ben Nelson, the Nebraska Governor (collectively the defendants). Russell named all parties in both their individual and official capacities.
The third amended petition, the operative petition, asserted claims under the STCA, Neb. Rev. Stat. § 81-8,209 et seq. (Reissue 1996); § 1983; and the Eighth Amendment. Russell requested injunctive relief, a declaratory judgment, and monetary damages, including court costs and $100 million in punitive damages.
It is very difficult to determine what each cause of action in Russell's third amended petition specifically alleges. Reading the petition liberally, it appears cause of action I alleges that prison doctors "acted deliberately" to deny proper medical treatment with regard to Russell's recurring bronchitis and his heart condition. As did the district court, we characterize this cause of action as a § 1983 claim alleging violations of the Eighth Amendment. For a claim of deprivation of medical care under the Eighth Amendment, a prisoner must show deliberate indifference to a prisoner's serious medical needs. Newton v. Huffman, 10 Neb. App. 390, 632 N.W.2d 344 (2001).
We read causes of action II through V to allege claims under the STCA: Cause of action II alleges "medical neglect," and cause of action III alleges "medical malpractice." Cause of action IV alleges "deliberate attempt to cause petitioner's death," and cause of action V alleges a "deliberate falsification of petitioner's medical records."
The STCA requires all plaintiffs with tort claims to file the claims with the State Claims Board (SCB) before bringing suit in a district court. § 81-8,212.
Although Russell's third amended petition states that he filed a claim for denial of medical care with the SCB on March 19, 1997, the first such filing contained in the record is claim No. 97-591, date-stamped April 8, 1997. Russell filed a lengthier but substantially equivalent claim, No. 97-668, on May 21. On claim No. 97-668, the only filing on which the SCB acted, Russell specifically defined the "issues" of the claim as "(1) Denial of Proper Medical Care; (2) Medical Malpractice; (3) Medical Neglect; (4) Unlawful/unauthorized Release of Medical Records in violation of Invasion of Privacy and Federal Privacy Act (5 USC); and (5) Deliberate attempt to Kill, Wound or Maim." Russell also complained in the "facts" section of his claim that the defendants refused to provide him his blood type. These are substantially the same allegations of Russell's operative petition to the district court. On September 3, the SCB notified R
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