Verle E. Olson v. Harold Clarke ( 1997 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 96-2916
    ___________
    Verle E. Olson, also known as    *
    Tony Olson,                      *
    *
    Appellant,             *
    *
    v.                          *
    *
    Harold Clarke; Ben Nelson;       * Appeal from the United States
    John Dahm; John Doe; J. Hansen, * District Court for the
    P.A.; Carolyn Greunke; Judy      * District of Nebraska.
    Rimel; Department of             *
    Corrections, of Nebraska; Dr.    * (UNPUBLISHED)
    Osborne; Lincoln General         *
    Hospital,                        *
    *
    Appellees.             *
    ___________
    Submitted:      March 18, 1997
    Filed: May 5, 1997
    ___________
    Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.
    ___________
    PER CURIAM.
    Verle    E. Olson appeals from the district court's order,
    dismissing as frivolous claims against certain defendants and
    dismissing    sua   sponte   under    Federal   Rule    of   Civil   Procedure
    12(b)(6) claims against other defendants in this 
    42 U.S.C. § 1983
    action alleging Eighth Amendment violations.           We affirm in part and
    reverse and remand in part.
    Olson, a Nebraska prisoner, alleged in his November 1995
    complaint filed in forma pauperis that he had had a hydrocelectomy
    at the Lincoln General Hospital to remove a hydrocele (an abnormal
    collection of fluid) on his testicle, and that he subsequently
    complained of a painful lump at the surgical site, but prison
    medical staff delayed and denied him medical treatment.                       Olson
    named as defendants Governor Ben Nelson, Department of Corrections
    Director Harold Clarke, Omaha Correctional Center (OCC) Warden John
    Dahm, OCC medical director Osborne, nurses Judy Rimel and Carolyn
    Greunke, physician assistant Jeff Hansen, Lincoln General Hospital,
    and   the   Department      of    Corrections.            He   sought   damages   and
    injunctive relief.        In an amended complaint, Olson attached copies
    of inmate interview requests responded to by Hansen and Rimel,
    which documented his unsuccessful attempts to be examined by a
    urologist,        the   delay    in   his    receipt      of   treatment,   and   his
    complaints of continuing pain.              He additionally alleged that Hansen
    examined him but failed to provide or delayed treatment, and that
    while Rimel scheduled appointments for Olson to be examined by a
    physician, his appointments were canceled, and several months
    passed before he finally obtained an examination by a Dr. Cherry,
    who also failed to provide treatment.
    Without ordering service on defendants, the district court
    dismissed as frivolous Olson's claims against Governor Nelson,
    Director Clarke, and Lincoln General Hospital, concluding Olson
    failed to allege how Nelson and Clarke were personally involved,
    and failed to allege facts establishing that the hospital was a
    state     actor    or   conspired      with       state   actors   to   violate   his
    constitutional rights.          The district court dismissed Olson's action
    as to the remaining defendants pursuant to Rule 12(b)(6) for
    failure to state a claim.1            The district court acknowledged that
    1
    The Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No.
    104-134, § 804(a)(5), 
    110 Stat. 1321
     (1996) (to be codified at 
    28 U.S.C. § 1915
    (e)(2)), now authorizes the district court to dismiss
    a complaint filed in forma pauperis "at any time if the court
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    Olson's injuries were serious, but suggested that Olson had failed
    to allege sufficient facts to establish deliberate indifference by
    any defendant.        The court noted that Olson had been examined by
    nurses and doctors after his surgery and that a disagreement with
    the course or efficacy of treatment did not rise to the level of a
    constitutional claim, nor did allegations of negligence state a
    claim under section 1983.
    We review de novo the dismissal of a case for failure to state
    a claim; a complaint should not be dismissed unless it appears
    beyond a doubt that the plaintiff cannot prove any set of facts in
    support of the claim that would entitle the plaintiff to relief.
    See Dicken v. Ashcroft, 
    972 F.2d 231
    , 233 (8th Cir. 1992).                     To
    state a claim for an Eighth Amendment violation, Olson must allege
    facts sufficient to support his claim that prison officials were
    deliberately indifferent to his serious medical needs.              See Estelle
    v. Gamble, 
    429 U.S. 97
    , 104 (1976).
    We conclude that the district court, which must assume Olson's
    allegations are true, erred in dismissing claims against physician
    assistant Hansen and nurse Rimel for failure to state a claim.
    Olson's allegations as to these defendants, which include requests
    for   additional      treatment    following    the    discovery    of   a   lump,
    continued pain due to lack of treatment, a delay in treatment, and
    a   denial   of   a   request     for   a   referral   to   a   specialist,   are
    sufficient to satisfy the deliberate indifference standard.                   See,
    e.g., Ellis v. Butler, 
    890 F.2d 1001
    , 1004 (8th Cir. 1989) (per
    curiam); Mandel v. Doe, 
    888 F.2d 783
    , 788 (11th Cir. 1989).                    We
    conclude that the district court could not determine, without
    improper speculation, that any delay in addressing Olson's concerns
    was not due to deliberate indifference.                See Ellis, 
    890 F.2d at 1003-04
    .     Further, although Olson was examined by a physician
    assistant and, eventually, by a prison physician, he could be
    determines that . . . the action . . . fails to state a claim on
    which relief may be granted."
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    entitled to relief if he can prove that the "course of treatment,
    or lack thereof, so deviated from professional standards that it
    amounted to deliberate indifference."                Smith v. Jenkins, 
    919 F.2d 90
    , 93 (8th Cir. 1990).
    We   conclude,    however,      that      the    district    court    properly
    dismissed as frivolous the claims against Clarke and Nelson, see
    McDowell v. Jones, 
    990 F.2d 433
    , 435 (8th Cir. 1993) (holding that
    supervisor   liability       under   §    1983       requires    proof    that    the
    supervisor personally participated in or had direct responsibility
    for the alleged violations), and the Lincoln General Hospital, see
    Gentry v. City of Lee's Summit, 
    10 F.3d 1340
    , 1342 (8th Cir. 1993)
    (holding that § 1983 liability requires a defendant to have acted
    under color of state law).       We also conclude the claims against the
    Department of Corrections were properly dismissed.                  See Monell v.
    Department of Social Servs., 
    436 U.S. 658
    , 694-95 (1978) (holding
    that municipal liability under § 1983 requires proof of an official
    custom, policy, or practice that caused the alleged violations).
    In addition, Olson failed to allege any facts supporting a claim
    against nurse Greunke, Dr. Osborne, or Warden Dahm.                 We leave for
    the district   court    to    determine        whether    Olson   may     amend   his
    complaint to add Dr. Cherry as a defendant.
    Accordingly, we affirm in part and reverse and remand in part
    for further proceedings.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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