Freddie James Prewitt-Bey, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1700

Freddie James Prewitt-Bey,
Appellant,

vs.

Minnesota Department of Corrections, et al.,
Respondents,

Centurion of Minnesota, et al.,
Respondents,

Kyle Milhaupt,
Respondent.

Filed May 8, 2017
Affirmed
Reilly, Judge

Rice County District Court
File No. 66-CV-15-808

Freddie James Prewitt-Bey, Faribault, Minnesota (pro se appellant)

Lori Swanson, Attorney General, Kelly S. Kemp, Assistant Attorney General, St. Paul,
Minnesota (for respondents Minnesota Department of Corrections, et al.)

Mark A. Solheim, Anthony J. N ovak, Paula Duggan Vraa, Larson · King, LLP, St. Paul,
Minnesota (for respondents Centurion of Minnesota, et al.)

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Considered and decided by Smith, Tracy M., Presiding Judge; Reilly, Judge; and
Klaphake, Judge.*
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Freddie Prewitt-Bey challenges the district court’s summary-judgment
dismissal of his constitutional and negligence claims against the Minnesota Department of
Corrections (DOC) and its medical-services vendor, Centurion of Minnesota (Centurion).
We affirm.
FACTS
Appellant Freddie Prewitt-Bey is current ly incarcerated at the Minnesota
Correctional Facility locat ed in Faribault, Minnesota (the MCF). See generally State v.
Prewitt, No. A12-1456, 2013 WL 3491078, at *1 (Minn. App. July 15, 2013), review
denied (Minn. Sept. 25, 2013). Th e DOC provides health serv ices for inmates who have
been committed to the custod y of the commissioner of corre ctions. The DOC contracts
with Centurion, a private correctional medical-services vendor to provide primary medical
care to inmates at each DOC location.
In April 2015, appellant filed a complaint alleging that the DOC, prison employees,
Centurion, and Centurion’s employees deprived him of his cons titutional rights and were

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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negligent in their treatment of his medical conditions.1 Specifically, appellant asserts that
he received inadequate care for chronic low back pain, knee pain, and the hepatitis-C virus
(HCV). Appellant later moved to supplement his complaint to add a cause of action for
injunctive and equitable relief. Respondents moved for summary judgment and filed an
affidavit and supporting materials from a doctor who set forth in detail appellant’s medical
records and the efforts undertak en to treat his medical conditions. Appellant did not file
any opposition to these motions. The district court granted summary judgment in favor of
respondents and against appellant on all clai ms, denied appellant’s motion for injunctive
and equitable relief, and dismissed the complaint with prejudice.
This appeal now follows.
D E C I S I O N
Appellant challenges the district court’s summary-judgment dismissal of his claims.
Where the material facts are undi sputed, as they are here, we review de novo the district
court’s summary judgment order. Safety Signs, LLC v. Niles-Wiese Constr. Co ., 840
N.W.2d 34, 37-38 (Minn. 2013).
I. The district court did not err by di smissing appellant’s constitutional
claims.
A. 42 U.S.C. § 1983
Appellant first asserts a civil-rights clai m under 42 U.S.C. § 1983 (2012) against
respondents, seeking monetary damages for alleged violations of his constitutional rights.

1 Appellant’s complaint asserted claims against respondents’ employees in their official
capacities only; appellant did not personally serve any of the respondents in their individual
capacities.

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Section 1983 “provides a cause of action against a state official who, acting under color of
law, deprives a person of a federal constitutional or statutory right.” Simmons v. Fabian,
743 N.W.2d 281, 284-85 (Minn. App. 2007) (citing Wyatt v. Cole, 504 U.S. 158, 163-64,
112 S. Ct. 1827, 1831-32 (1992)). To prev ail on a section 1983 claim, appellant must
establish that (1) he was deprived of a ri ght, privilege, or immunity secured by the
Constitution or laws of the United States and (2) the conduct complained of was committed
by a person acting under the color of state law. 42 U.S.C. § 1983; see also Rendell-Baker
v. Kohn, 457 U.S. 830, 838, 102 S. Ct. 2764, 2769-70 (1982) (articulating this standard).
Appellant fails on both prongs. For the re asons addressed more fully below, we
determine that appellant has not established that he was deprived of “rights, privileges, or
immunities secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983.
Appellant’s claim also fails because he cannot establish that the complained-of conduct
was committed by a “person” acting under the color of state law. See id. (articulating this
requirement). The law is clear that “neither a State nor its officials acting in their official
capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police , 491 U.S. 58,
71, 109 S. Ct. 2304, 2312 (1989); see also Montano v. Hedgepeth , 120 F.3d 844, 849-50
(8th Cir. 1997) (noting that medical providers contracted with a state prison to attend to an
inmate’s medical needs are also viewed as state actors). Appellant asserted a section 1983
claim against respondent-employees in their official capacities only. Therefore, the district
court did not err by dismissing appellant’s dama ges claims asserted against state officials
acting in their official capacities. See Will, 491 U.S. at 71, 109 S. Ct. at 2312 (affirming

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dismissal where an appellant brought suit under section 1983 against state officials in their
official capacity).
B. Eighth Amendment
Appellant asserts that respondents viol ated the Eighth Amendment by “den[ying]
medically appropriate care for a serious me dical need.” To prevail on an Eighth
Amendment claim based on inadequate medical care, an inmate must show that he suffered
from a serious medical need to which prison officials were deliberately indifferent. Gordon
ex rel. Gordon v. Frank , 454 F.3d 858, 862 (8th Cir. 2006 ). This claim involves both an
objective and a subjective component, and require s the inmate to dem onstrate that (1) he
suffered objectively serious medical needs and (2) the prison official s actually knew of,
but deliberately disregarded, those needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th
Cir. 1997).
We assume without deciding that appellant satisfies the threshold element that he
suffered objectively serious medical needs. However, appellant ’s Eighth Amendment
claim fails because he has not presented evidence that respo ndents knew of, and
deliberately disregarded, those medical needs. See id. (“The failure to treat a medical
condition does not constitute punishment with in the meaning of the Eighth Amendment
unless prison officials knew that the condition cr eated an excessive ri sk to the inmate’s
health and then failed to act on that k nowledge.” (quotation om itted)). “Deliberate
indifference is akin to crimin al recklessness” and requires a ppellant to show more than
even gross negligence. Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008).
Appellant “must place verifying medical evidence in the record to establish the detrimental

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effect of [a] delay in medical treatment.” Jackson v. Riebold, 815 F.3d 1114, 1119-20 (8th
Cir. 2016). The undisputed evidence in the record reveals that respondents were responsive
to appellant’s medical needs. Medical provi ders met with appellant approximately 40
times between the May 2012 intake examination and July 2016, and provided treatment for
appellant’s back pain, knee pain, and HCV. Ap pellant has not su bmitted any medical
evidence into the record demonstrating that respondents were deliberately indifferent to his
medical needs, and the uncontested record belies any such claim.
Appellant disagrees with the course of treatment furnishe d by the medical
professionals and argues that hi s HCV should have been treate d with a different type of
medication. But it is not enough that an inmate disagrees with his medical treatment—he
must show deliberate indifference. Lair v. Oglesby , 859 F.2d 605, 606 (8th Cir. 1988).
Appellant has not done so here. Summary ju dgment is appropriate where the appellant
fails to submit verifying medi cal evidence indicating that a delay in treatment had a
detrimental effect on his prognosis. Jackson, 815 F.3d at 1120. Because appellant failed
to create a genuine issue of material fa ct on his Eighth Amendment claim, summary
judgment was appropriate and the district court did not err by granting relief in
respondents’ favor.
C. Equal Protection
Appellant asserts that respondents deni ed him equal protection under the law
because “he was denied medical care based on his race.” The equal protection guarantees
articulated in the United States and Minnesota Constitutions require that persons similarly
situated be treated alike unless a rational basis exists for discriminating among them. See

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State v. Russell, 477 N.W.2d 886, 888-89 (Minn. 1991) (applying a more stringent rational
basis test to an equal protection challenge that alleges the legislature enacted a particular
statute because of an anticipated racial discriminatory effect); see also State v. Thiel, 846
N.W.2d 605, 614 (Minn. App. 2014) (“A cla ssification that does not adversely affect a
fundamental right and is not based on a susp ect category is constitutional if it passes
rational-basis scrutiny.”). Appellant failed to submit any evidence w ith respect to this
claim, and his conclusory allegations of racial discrimination, standing alone, are
insufficient. See Hager v. Ark. Dep’t of Health , 735 F.3d 1009, 1 015 (8th Cir. 2013)
(upholding the dismissal of equal protection claim because conclusory assertions are
insufficient to establish right to relief). Dismissal of appellant’s equal protection claim was
appropriate.
II. The district court did not err by dismissing appellant’s negligence claim.
We next determine that the district c ourt did not err by dismissing appellant’s
negligence claim. In order to establish a prima facie case of medical malpractice, appellant
must prove “(1) the standard of care rec ognized by the medical community as applicable
to the particular defendant’s conduct, (2) th at the defendant in fact departed from that
standard, and (3) that the defendant’s departure from the standard was a direct cause of the
patient’s injuries.” Dickhoff ex rel. Dickhoff v. Green, 836 N.W.2d 321, 329 (Minn. 2013)
(quotation omitted). “The Mi nnesota legislature enacted expert-review and expert-
disclosure requirements as a means of readily identifying meritless lawsuits at an early
stage of the litigation.” Broehm v. Mayo Clinic Rochester , 690 N.W.2d 721, 725 (Minn.
2005). Minnesota law requires a plaintiff f ile two affidavits: one with the summons and

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complaint, stating that an attorney has revi ewed the case with an expert; and a second
affidavit filed within 180 days of the commencement of discovery explaining the standard
of care and chain of causation. Minn. Stat. § 145.682, subds. 2-4 (2016).
It is undisputed that appellant failed to satisfy the expert-affidavit requirements
articulated in Minn. Stat. § 145.682, subds. 2-4. The expert-discl osure statute requires
strict compliance, and noncompliance results in “mandatory dismissa l with prejudice.”
Mercer v. Andersen , 715 N.W.2d 114, 122 (Minn. A pp. 2006). The law creates no
exception for pro se plaintiffs. See Paulos v. Johnson, 502 N.W.2d 397, 400 (Minn. App.
1993) (affirming dismissal where pro se appella nt violated an absolute requirement of
Minn. Stat. § 145.682 by failing to provi de an affidavit of expert review), review denied
(Minn. Sept. 10, 1993). Because appellant did not submit the expert affidavits required by
section 145.682, dismissal was mandatory.
III. The district court did not err by denying equitable or injunctive relief.
Appellant sought injunctive and equitable re lief, demanding a particular course of
anti-viral HCV treatment, along with compensa tory damages. Appellant did not file
documentation in support of this motion, nor did he argue in support of this motion at the
hearing. The district court denied appellant’s motion. Ap pellant has not challenged this
portion of the order on appeal and, typically, an appellant’s failure to raise an issue in his
brief precludes appellate review of that issue. See State v. Beaulieu, 859 N.W.2d 275, 278
(Minn. 2015) (noting that i ssues not briefed on appeal ar e forfeited). Moreover, “[a]n
assignment of error based on mere assert ion and not supported by any argument or
authorities in appellant’s brief is [forfeited] and will not be considered on appeal unless

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prejudicial error is obvious on mere inspection.” Schoepke v. Alexander Smith & Sons
Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971). Because appellant has
not briefed this issue on appeal and prejudicial error is not “obvious on mere inspection,”
we consider these arguments forfeited.
Affirmed.