The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DISMISSING MOOT CLAIMS AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff, Kirk Carlson, was incarcerated at the South Dakota State Penitentiary when he filed this action. He brings this pro se suit under 42 U.S.C. § 1983 against defendants Douglas Weber, Warden of the South Dakota State Penitentiary; Julie Spurrell, Clinical Supervisor; Dr. Regier, his Hepatitis C physician; Roseanne Garrison, Staff Nurse; and JP Syverson, Chief Charge Nurse. Carlson asserts defendants were deliberately indifferent to his medical needs in violation of the Eighth Amendment, and that defendants deprived him of due process of law in violation of the Fifth and Fourteenth Amendments. Defendants move for summary judgment on all claims, asserting defenses of qualified and sovereign immunity. Carlson seeks monetary damages and injunctive relief.
Because Carlson was released from the South Dakota State Penitentiary on January 29, 2010, this court dismisses his claim for injunctive relief as moot. Defendants' motion for summary judgment is granted as to Carlson's claim for money damages.
The facts,*fn1 taken in the light most favorable to Carlson, are the following:
Weber is the Chief Warden of the South Dakota State Penitentiary. Spurrell is a registered nurse, employed by the South Dakota Department of Health, who works as a clinical supervisor at the South Dakota State Penitentiary. Dr. Regier is a medical doctor, employed by the South Dakota Department of Health, who provides medical care to inmates at the penitentiary. Garrison and Syverson are registered nurses, employed by the South Dakota Department of Health, who work at the South Dakota State Penitentiary. Carlson asserts defendants' failure to treat his Hepatitis C with drug therapy amounted to deliberate indifference to his medical needs.
Carlson also argues that defendants denied him due process when he was disciplined for failing to produce a urine sample on June 20, 2007.
Carlson was infected with Hepatitis C when he began his incarceration in 2004.*fn2 Prior to his incarceration, he had treated his Hepatitis C with drug therapy, specifically Interferon and Ribavirin. He stopped treatment against medical advice before the 48-week treatment period ended. During his initial physical at the penitentiary, Carlson indicated he had a history of Hepatitis C and had been treated with drug therapy. Liver function tests to ascertain the extent of the damages were ordered. Carlson's treating physician began the standard protocol used by the South Dakota Department of Health to treat Hepatitis C.
Dr. Regier began treating Carlson on September 9, 2004. At that time, Dr. Regier reviewed Carlson's Hepatitis C test results and determined they were within normal limits. Carlson continued receiving regular liver function tests to monitor the disease, pursuant to the South Dakota Department of Health protocol for treating Hepatitis C. On January 25, 2005, Carlson asked Dr. Regier if he could restart drug therapy. Dr. Regier reviewed his test results, which were within normal limits, and asked Carlson to return for a follow-up visit in one to two months. On March 15, 2005, Dr. Regier rechecked Carlson and found his liver function test results had elevated slightly. Dr. Regier thought the elevation could be due to new medications Carlson was prescribed due to a positive TB test. He ordered additional testing and a follow-up appointment. Dr. Regier and other Department of Health staff continued to treat Carlson's Hepatitis C regularly through examination and liver function tests. Carlson periodically requested drug therapy for his Hepatitis C.
On May 10, 2006, Dr. Regier agreed to request authorization for drug therapy for Carlson despite the fact that he did not qualify. The Department of Health protocol for treating Hepatitis C requires advanced liver disease before drug therapy is ordered. Dr. Regier ordered a liver biopsy and psychological consultation in preparation for the treatment. On May 11, 2006 and January 10, 2007, Carlson signed consent forms for Hepatitis C evaluation and treatment, acknowledging that under the protocol, drug treatment is offered if: the inmate has progressive permanent liver disease, is drug and alcohol free (to be determined by random testing before and during treatment), and does not have any medical condition that is a contraindication to the treatment. The form also specified that treatment could be deferred if Carlson did not cooperate with medical, psychiatric, or mental health treatment. The liver biopsy revealed Carlson was at grade 2, stage 1 level for liver disease. Although this biopsy did not reveal advanced liver disease, as required, Dr. Regier allowed Carlson to receive Hepatitis C drug therapy with Interferon and Ribavirin.
Carlson began drug therapy on February 28, 2007, and continued without notable complications until June 20, 2007. On June 20, 2007, penitentiary staff asked him to produce a urine sample, which he could not do on request. Failure to produce a urine sample on request is a prohibited act for which inmates may be disciplined. Carlson was then given two eight-ounce glasses of water and placed in a holding cell, where he had four hours to produce a urine sample. Carlson did not produce a urine sample. An employee issued a disciplinary report and provided Carlson with a copy.
The Unit Disciplinary Committee investigated the charges; Carlson explained he was dehydrated because of his diabetes and high blood pressure. The committee then referred the charges to a Disciplinary Hearing Officer for a hearing. Carlson did not request any witnesses at the hearing, but he did request that his unit coordinator act as his staff representative. At the hearing on June 26, 2007, Carlson admitted he did not produce a urine sample. The hearing officer determined he had committed a prohibited act and imposed a sanction of cell restriction for fifteen days and loss of commissary privileges for three weeks. Carlson was advised of his right to appeal.
Carlson subsequently filed two Informal Resolution Requests, requesting that the disciplinary violation be dismissed from his record. Carlson asserted that his medications caused a decrease in urine, preventing him from producing a urine sample. Staff reviewed his grievance and spoke with the medical staff. Garrison reported that urinary retention was a side effect of nearly all of Carlson's medicines, but there was no medical reason Carlson could not produce a urine sample. Carlson's request to remove the disciplinary report from his record was denied. Carlson then filed a Request for Administrative Remedy on August 14, 2007, requesting the same relief and stating his medication prevented him from producing a urine sample. Weber denied this request on August 24, 2007, asserting that the unit coordinator's response was reasonable.
After June 20, 2007, when Carlson indicated he would stop taking all of his medications because he was unable to produce a urine sample upon request, Dr. Regier encouraged Carlson to continue with his prescribed medications, telling him that other medications, not his Hepatitis C medications, could be influencing his inability to produce a urine sample. On July 21, 2007, Carlson stopped taking Ribavirin against Dr. Regier's advice. Carlson signed a Release of Responsibility form on August 1, 2007, indicating his refusal to take his medications as prescribed. Carlson told Dr. Regier he had stopped his Ribavirin on August 8, 2007. At that time, Dr. Regier encouraged Carlson to start taking it and advised Carlson that he could discontinue the other Hepatitis C medication, Interferon, based on Carlson's non-compliance. On September 12, 2007, Dr. Regier noted that Carlson's treatment was compromised by his refusal to take the medications prescribed and his drug therapy was terminated.
In April 2008, Carlson asked to restart his drug therapy treatment. His liver function tests did not indicate advanced liver disease as required for drug treatment. On April 28, 2008, Carlson filed an Informal Resolution Request asking why he could not restart drug therapy. The response stated that Carlson had received drug therapy for Hepatitis C twice, but stopped the treatment against the advice of his doctors on both occasions. Carlson filed a request for an Administrative Remedy on May 2, 2008, requesting drug therapy. Weber responded on May 14, 2008, telling Carlson that Dr. Regier was monitoring his condition and that Carlson was to be tested in November or December. Treatment would be based on the test results. On May 28, 2008, Carlson filed another Informal Resolution Request, requesting that lab tests be done immediately and drug therapy provided as soon as possible. The response stated Carlson's medical provider ordered a lab test. On June 2, 2008, Carlson filed a Request for Administrative Remedy seeking drug therapy. Weber responded that testing had been scheduled for ...