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Gordon v. Bertsch

United States District Court, D. North Dakota, Southwestern Division

January 25, 2016

Michael Gordon, Plaintiff,
v.
Leann K. Bertsch, Director, et. al., Defendants.

REPORT AND RECOMMENDATION

CHARLES S. MILLER, Jr., Magistrate Judge.

I. BACKGROUND

Plaintiff Michael Gordon ("Gordon") is a prisoner serving a federal sentence. He initiated this action while being housed at the North Dakota State Penitentiary ("NDSP"). He has since been removed from the NDSP, presumably by federal prison officials, and is now being incarcerated at the Mississippi State Penitentiary at Parchman, Mississippi.

Initially, Gordon filed several pleadings. The undersigned determined the operative pleading to be the one entitled First Amended Complaint and screened that pleading pursuant to 28 U.S.C. ยง 1915A. In the First Amended Complaint, Gordon sought to sue twenty-six named defendants and six unnamed defendants for: (1) several Eighth Amendment claims of deliberate indifference with respect to his medical care; (2) a First Amendment claim for restrictions upon prisoner communications; (3) a multitude of retaliation claims alleged to be in violation of the First Amendment and the right to due process; (4) an equal protections claim related to alleged unequal treatment of prisoners held in different cell blocks in terms of the privileges extended to the prisoners; (5) a claim of denial of access to the courts; and (6) a due process claim with respect to the pricing of items for sale in the prison commissary.

On October 30, 2015, the undersigned issued a report and recommendation which recommend that Gordon be permitted to proceed with respect to: (1) all of his Eighth Amendment deliberate indifference claims, but only as to defendants Dr. John Hagan and Jessica Wilkens; and (2) a few of his retaliation claims, but only as to defendants Todd Flanagan, Steve Heit, and Steve Foster. The undersigned further recommended that the remainder of the claims and defendants be dismissed without prejudice unless Gordon submitted a second amended complaint addressing the deficiencies noted in the report and recommendation.

Gordon has now filed a Second Amended Complaint in which he has made some changes in response to the undersigned's earlier report and recommendation. Notably, he has pared down his lawsuit by eliminating several of his claims; he now seeks to sue only on his claims of deliberate indifference and retaliation and the scope of each of those has been somewhat reduced. Further, he has eliminated a few of the named defendants, although he still seeks to sue twenty-two named defendants and a number of unknown federal and state persons. Finally, Gordon expanded his retaliation claims to include an allegation that his transfer out of the NDSP was dictated by defendant Steve Foster in retaliation for his having exercised his First Amendment and due process rights. This claim was not included in his initial pleadings which were filed while he was still at the NDSP.

What follows is a screening of the Second Amended Complaint filed at Doc. No. 30. And, rather than repeat all of what was in initial screening, this report and recommendation incorporates and supplements what was in the earlier one at Doc. No. 28 to the extent it still has bearing upon what is now being alleged in the Second Amended Complaint.

II. DISCUSSION

A. Eighth Amendment claims

In his Second Amended Complaint, Gordon alleges the following claims of deliberate indifference as to his allegedly serious medical needs:

1. the failure to provide him a colonoscopy in light of his risk for colon cancer;

2. inadequate treatment for Hepatitis C;

3. inadequate treatment for allegedly very painful shoulder problems; and

4. inadequate treatment for allegedly very painful back problems. Gordon alleged the same claims in his prior complaint along with one other related to an eye condition, which ...


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