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Harp v. Secretary of Corrections

United States District Court, Eighth Circuit

May 6, 2013

GEORGE HARP, Plaintiff,
v.
SECRETARY OF CORRECTIONS, (D.O.C), Individually and in his official capacity; SOUTH DAKOTA PRISON MEDICAL DEPARTMENT STAFF, Individually and in their official capacity; ROBERT DOOLEY, Warden Mike Durfee State Prison, individually and in official capacity; DR. EUGENE REGIER, Under contract to South Dakota Department of Health, Individually and his official capacity; DR. MELVIN WALLINGA, Under contract to South Dakota Department of Health, Individually and his official capacity; DOUGLAS WEBER, Warden of The South Dakota State Penitentiary, individually and In his official capacity; and KEITH DITMANSON, D-Unit Manager South Dakota State of South Dakota Penitentiary, Jameson Annex, Individually and in his Official capacity, Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL

KAREN E. SCHREIER, District Judge.

Plaintiff, George Harp, is an inmate at Mike Durfee State Prison (MDSP) in Springfield, South Dakota.[1] On October 18, 2011, and again on January 3, 2012, plaintiff filed a pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983, alleging that defendants subjected him to cruel and unusual conditions, failed to protect him from violence, and acted with deliberate indifference toward his serious medical needs, all in violation of the Eighth Amendment. Docket 1, 7.

The court screened Harp's complaint pursuant to 28 U.S.C. § 1915 and dismissed one of his three claims for failure to exhaust administrative remedies. Docket 10. In response to defendants' first motion for summary judgment (Docket 43), the court dismissed Harp's excessive force claims for failure to exhaust administrative remedies (Docket 56). Defendants now move for summary judgment on Harp's remaining claims regarding defendants' alleged deliberate indifference toward his serious medical needs. Docket 60. Defendants assert that each is entitled to sovereign immunity and qualified immunity. Docket 61. Harp opposes defendants' motion for summary judgment. Docket 63. Harp asserts that further discovery would reveal that defendants are providing incomplete and fabricated information with respect to Harp's medical condition and treatment. Id. For the reasons set forth herein, the court grants defendants' motion for summary judgment (Docket 60).

FACTUAL BACKGROUND

In the light most favorable to Harp, the facts are as follows:

Harp is an inmate in the custody of the South Dakota Department of Corrections (DOC). Docket 62 at § 1. Harp has been incarcerated at both MDSP and SDSP. Docket 62 at § 1. At issue in this case is alleged conduct that occurred at both facilities. Prior to being incarcerated, Harp had been treated for "stroke, AAA, deep vein thrombosis, ruptured disc (L4-S5), [and] chronic back pain." Docket 1 at 1; Docket 62 at § 14. According to Harp, defendants Dr. Regier, Dr. Wallinga, and Unit Manager Ditmanson, in accordance with DOC policy, [2] refused him access to medications related to the aforementioned conditions and thus violated the Eighth Amendment by acting with deliberate indifference toward his serious medical needs. Docket 7 at 6.

More specifically, Harp alleges that Dr. Wallinga initially refused "to allow [Harp] to receive medications that had been prescribed by outside physicians." Docket 36 at 3. Harp concedes, however, that Dr. Wallinga "later did prescribe some for [Harp]." Id. at 4. With regard to Dr. Regier, Harp alleges that Dr. Regier "denied [Harp] medications prescribed to [Harp] by the physicians at... Sanford Hospital and the physicians at Avera MeKennon [sic] Hospital." Id. According to Harp, Dr. Regier discontinued various medications without first examining Harp. Id. ; Docket 63 at 3. "This left [Harp] in excruciating pain and the sudden discontinuation of the medications created a serious risk of stroke and death to [Harp]." Docket 36 at 4-5. Moreover, Dr. Regier allegedly "prevented [Harp] from the follow up appointments with the specialists that have treated [Harp]" by refusing to schedule such appointments. Id. at 5. Finally, Harp alleges that Unit Manager Ditmanson denied Harp medically necessary diabetic socks, even despite being told by Nurse Jessica that doctors ordered diabetic socks for Harp. Docket 7 at 6; Docket 36 at 4. According to Harp, Ditmanson cited the cost of diabetic socks when denying such provisions. Id.

In his amended complaint, Harp accuses the Secretary of Corrections, the South Dakota Prison Medical Staff, Warden Robert Dooley, and Warden Douglas Weber of acting with deliberate indifference toward his serious medical needs. Docket 36 at4. With regard to the Secretary of Corrections and Warden Dooley, Harp alleges that each defendant acted with deliberate indifference to his serious medical needs "by creating policy and procedure that interferes with and denies needed medications and medical treatment, " thus subjecting Harp to serious health risks. Id. With respect to Warden Weber, Harp alleges that he acted with deliberate indifference to Harp's serious medical needs by authorizing, pursuant to an Operations Memorandum, Unit Manager Ditmanson's denial of diabetic socks. Id. According to Harp, this action was taken in contravention of Weber's duty to ensure that inmates at SDSP are provided with prescribed medical treatment and medications. Id. at 2. Finally, with regard to the South Dakota State Prison Medical Department Staff, Harp alleges that the staff "denied medications to [Harp] that were prescribed by a physician on more than one occasion, " a denial that "caused great pain and created a serious risk to [Harp]'s health." Id. at 4.

STANDARD OF REVIEW

"Summary judgment is appropriate when the evidence, [3] viewed in a light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law." Clark v. Kellogg Co., 205 F.3d 1079, 1082 (8th Cir. 2000); see also Fed.R.Civ.P. 56(a). "Once the motion for summary judgment is made and supported, it places an affirmative burden on the non-moving party to go beyond the pleadings and by affidavit or otherwise designate specific facts showing that there is a genuine issue for trial." Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir. 1992) (internal quotations and citations omitted). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although "the court is required to... give [the nonmoving] party the benefit of all reasonable inferences to be drawn from the underlying facts, " Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980), the nonmoving party may not "rest upon mere denials or allegations, " Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002). Instead, the nonmoving party must "set forth specific facts sufficient to raise a genuine issue for trial." Id.

Prisoners who proceed pro se are entitled to the benefit of liberal construction at the pleading stage. Quam v. Minnehaha Cnty. Jail, 821 F.2d 522, 522 (8th Cir. 1987). Nonetheless, the summary judgment standard set forth in Rule 56 of the Federal Rules of Civil Procedure remains applicable to prisoners proceeding pro se. Id. The district court is not required to "plumb the record in order to find a genuine issue of material fact." Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996). Moreover, the court is not "required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Id. Courts must remain sensitive, however, "to the special problems faced by prisoners attempting to proceed pro se in vindicating their constitutional rights, and [the Eighth Circuit does] not approve summary dismissal of such pro se claims without regard for these special problems." Nickens v. White, 622 F.2d 967, 971 (8th Cir. 1980).

DISCUSSION

Defendants assert that Harp's remaining claims must be dismissed based on the doctrines of sovereign immunity and qualified immunity. Docket 60; Docket 61. Defendants do not deny that Drs. Regier and Wallinga refused Harp certain medications. Docket 61 at 4; Docket 61-1 at §§ 5, 9; Docket 61-2 at §§ 6, 9. Instead, they assert that those determinations were based on each doctor's professional judgment. Docket 61 at 3-6; Docket 61-1 at §§ 5-6; Docket 61-2 at §§ 6-7; Docket 62 at §§ 18-19. Similarly, defendants do not deny that Unit Manager Ditmanson refused Harp diabetic socks but rather assert that Ditmanson issued the refusal because the relevant medical order had expired. Docket 61 at 6-8; Docket 61-3 at §§ 6-8; Docket 62 at §21. Finally, because the denials of medications and diabetic socks were neither based on SDDOC policy nor authorized by prison officials, defendants assert that the Secretary of Corrections, Warden Robert Dooley, Warden Douglas Weber, and the South Dakota Prison Medical Staff cannot be found to have acted with deliberate indifference toward Harp's serious medical needs. Docket 61 at 8-11. Accordingly, defendants assert that each is entitled to summary judgment as a matter of law. Id.

I. Defendants, in Their Official Capacities, Are Entitled to Summary Judgment Under the ...


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