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Strohfus v. Bowers

United States District Court, D. South Dakota, Southern Division

July 24, 2014

HEATHER BOWERS, Charge Nurse, SDSP Hill Health Service; DOUGLAS WEBER, Warden, (retired) SDSP; DARIN YOUNG, Warden, SDSP; TROY PONTO, Associate Warden, SDSP Hill; ART ALLCOCK, Associate Warden, Defendants.


KAREN E. SCHREIER, District Judge.

Plaintiff, Toby Joseph Strohfus, is an inmate at the South Dakota State Penitentiary (SDSP) in Sioux Falls, South Dakota. On June 14, 2013, Strohfus filed a pro se civil rights lawsuit pursuant to 42 U.S.C. ยง 1983, alleging that defendants violated his rights under the Eighth Amendment by failing to follow the recommendations of his ear, nose, and throat (ENT) doctor, refusing to let him see an orthopedic doctor about his back problems, refusing to provide proper treatment for his back problems, and failing to review his complaints. Docket 1. Strohfus amended his complaint to include denial or interference of care for problems with his eye. Docket 13. On August 27, 2013, and on September 12, 2013, defendants answered Strohfus's amended complaint. Dockets 25, 28. On January 8, 2014, defendants moved for summary judgment. Docket 29. Strohfus did not respond to defendants' motion and the time for response has passed. After consideration, the court grants defendants' motion for summary judgment.


Viewed in a light most favorable to Strohfus, the nonmoving party, the facts are as follows[1]:

Defendant Weber is the former warden of SDSP. Defendant Darin Young is the current warden of SDSP since May 24, 2013. Defendant Troy Ponto is the associate warden of SDSP since April 2009. Defendant Art Allcock is also an associate warden of SDSP. Defendant Heather Bowers is the charge nurse at SDSP.

Strohfus is an inmate in the custody of the South Dakota Department of Corrections (SDDOC). While in the custody of the SDDOC, Strohfus was seen by various medical professionals with regard to his severe ear condition. Strohfus was first seen by medical staff on or about June 26, 2003, for complaints about his left ear pain. Docket 32-1. Examination reveals there was "erosion of the distal portion of the canal inferiorly with some evidence of recent bleeding." Id. When asked if he did anything to irritate his ear, Strohfus admitted to having tried to clean out his left ear. Strohfus was given ear drops and prescribed medication for the infection. He was also scheduled for a follow up exam. During the follow up, Strohfus reported his ear felt better. Docket 32-2. The medical staff advised Strohfus to avoid putting instruments in his ear.

More than three years later, Strohfus reported that he thought he had an ear infection. Strohfus was diagnosed with an ear infection and instructed to return for reexamination. Upon reexamination the medical staff determined the infection had healed, but Strohfus was instructed to continue the antibiotics and return in two weeks. On August 14, 2006, the medical staff concluded that the problem was reoccurring and scheduled Strohfus to see an ear, nose, and throat specialist.

On October 10, 2006, Dr. Rick Jensen, ENT, diagnosed Strohfus with possibly having an infected cholesteatoma[2] and prescribed Ciprodex otic drops. The ENT also scheduled a follow-up exam. During the follow-up exam, on November 6, 2006, Strohfus asserted that his ear problems began after a "hot piece of metal" went into his ear "while welding." Docket 32-7. Strohfus had told the medical staff at SDSP on November 3, 2006, that "a small piece of slag came into his left ear" on July 16, 2006, [3] when he was welding. Docket 32-8. Dr. Jensen instructed Strohfus to continue with the Ciprodex drops and to see him again in a few weeks. On November 27, 2006, and December 22, 2006, the ENT found no evidence of cholesteatoma. The ENT switched Strohfus to a Lidex solution. During a follow up on January 30, 2007, the ENT recommended a CAT scan. A CAT scan was taken on February 23, 2007, and showed evidence of erosion consistent with cholesteatoma.

On March 2, 2007, Strohfus was discharged from prison, but returned to prison again on April 23, 2007. Strohfus admitted to medical staff that he had not seen any doctors for any medical condition while outside of incarceration.

Medical staff at the Mike Durfee State Prison (MDSP) on October 10, 2007, prescribed a Lidex solution for Strohfus's ear irritation. Strohfus was seen by Dr. Patrick Collison, ENT, on October 17, 2007, who determined that Strohfus's symptoms were consistent with cholesteatoma. Dr. Collison recommended that Strohfus have "a modified radical mastoidectomy on the left" ear. Docket 31-8. Strohfus underwent the procedure at Sacred Heart Hospital in Yankton, South Dakota, on November 20, 2007. He appeared to be well healed upon examination in January of 2008.

Strohfus was discharged from the SDSP on February 17, 2009, but returned after a new conviction on September 18, 2012. Upon his return, Strohfus again complained of ear pain with drainage. After testing, Midwest ENT concluded that Strohfus had "no cholesteatoma." Docket 31 at 10. Pursuant to the recommendation of the ENT, though, Strohfus was seen by the ENT on a monthly basis. The ENT recommended, but the institution was unable to comply with, that Strohfus use a blow dryer to dry his ear after showering and wear a stocking cap at all times. Docket 31 at 10. Institutional policy only allowed Strohfus to wear a stocking cap outdoors and did not allow prisoners to have blow dryers. The ENT recommended that Strohfus could instead use a fan or book to dry his ear. Health Services refused Strohfus his medicated ear drops for a week and a half and told him he could only have one bottle a month. Docket 17.

On August 19, 2013, the ENT also recommended "a left revision tympanomastoidectomy with facial nerve monitor." Docket 32-53. Medical staff were not aware of the recommendation until September 26, 2013. Strohfus was authorized to undergo the procedure on October 3, 2013, and he underwent the procedure on December 3, 2013.

Regarding Strohfus's eye problem, on or about June 24, 2013, Strohfus "lost [his] balance when [his] ear drained and [he] fell over and split [his] eye open." Docket 13. Health Services told Strohfus that there was nothing it could do. Id. This incident was not recorded in Strohfus's file and the record shows Strohfus did not alert staff he needed medical attention. Additionally, his unit manager does not recall the event.

Turning next to Strohfus's back problems, Strohfus has had back problems since he was "hit by a driver in 1997." Docket 1. The incident may have caused a C7 fracture, but Strohfus was able to move all his extremities and only complained of pain around his right shoulder and arm. On December 21, 2001, Strohfus denied any medical or surgical history. On March 27, 2002, Strohfus requested new shoes for his back discomfort. On December 29, 2005, Strohfus again requested new shoes. Health Services did not find that shoes were necessary, but told Strohfus to return if he was still experiencing ...

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