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Kenyon v. Dooley

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

July 25, 2014

TONY KENYON, Plaintiff,
WARDEN DOOLEY, Director of Prison Operations; DEPARTMENT OF HEALTH, Prison Health Service Department; DR. REIGER, provider; DARL DEIDE, Pheasantland Industries; and STROMAB SPA MANUFACTURING COMPANY, Defendants.


KAREN E. SCHREIER, District Judge.

Plaintiff, Tony Kenyon, is an inmate at the South Dakota State Penitentiary (SDSP) in Sioux Falls, South Dakota. On October 7, 2013, Kenyon filed a pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983, alleging that defendants violated his rights under the Eighth Amendment by failing to inspect equipment, follow the recommendations of his doctor, and provide adequate aftercare, therapy, and pain management. Docket 1. On February 28, 2014, defendants Warden Dooley, Department of Health, Dr. Regier, and Darl Diede moved for summary judgment.[1] Dockets 29. Kenyon did not respond to defendants' motion for summary judgment, and the time for response has passed. Kenyon did file a reply to defendants' answer on April 24, 2014. Docket 30. After consideration, the court grants defendants' motion for summary judgment.


Viewed in a light most favorable to Kenyon, the nonmoving party, the facts are as follows[2]:

Defendant Warden Dooley is the Director of Prison Operations of South Dakota Department of Corrections (SDDOC) since June 2013. Defendant E.R. Regier, M.D., has provided medical care to inmates at SDSP since May 2001. Darl Diede is Director of Pheasantland Industries at SDSP since March 2012. Kenyon is an inmate in the custody of the South Dakota Department of Corrections (SDDOC).

While in the custody of the SDDOC, Kenyon worked in the cabinet shop. As a condition precedent to his working at the cabinet shop, Kenyon was required to undergo training by a fellow inmate on the proper operation of the equipment, sign an "Operation Training Sheet" to certify he understood how to properly operate the equipment, and attend weekly safety meetings.[3] Staff also conducted weekly inspections to make sure the equipment was operational.[4] Dockets 26; 25-27; 25-29.

At approximately 2:45 p.m., on June 27, 2013, Kenyon went to clean the Tiger-Stop Saw, as he had done many times before. After triggering the emergency shut off switch by opening the door, he reached into the saw. The fourth time he reached into the saw, the blade turned back on and cut off his index finger, also damaging his middle finger in the process. Docket 1. Immediately after the accident Kenyon was taken to Health Services to have his injury examined. Here, Kenyon stated that he "knew better than to do that" and that "[i]t was [his] fault. [He] wasn't paying attention."[5] Docket 25-30.

Kenyon was soon transported by ambulance to the Emergency Room at McKennan Hospital in Sioux Falls, South Dakota. At the hospital, Kenyon underwent metacarpophalangeal (MCP) fusion of the finger. Kenyon was not given his prescribed pain medication until 36 hours after he was released from the hospital. Docket 30. Kenyon saw Dr. Scott McPherson regularly after the surgery. Dr. McPherson told Kenyon to perform exercises with his fingers and Health Service's staff provided Kenyon with a PTEX home exercise program. It took 3½ weeks for the hospital to send Kenyon to physical therapy. Docket 30. Kenyon's hand was put in a splint and Dr. McPherson advised Kenyon of the possibility of amputation. During the multiple follow-up appointments, Kenyon's hand was x-rayed many times before Dr. McPherson finally determined that the finger was only getting in Kenyon's way and should be removed. Kenyon agreed with Dr. McPherson's recommendation, and Kenyon's finger was amputated.

Following amputation, Kenyon was prescribed Hydrocodone, Ibuprofen, and Tramadol. Kenyon was not given his prescribed medication until 38 hours after he was released from the hospital. Docket 30. When Kenyon returned to SDSP he was given Lortab[6] and Ibuprofen. Staff elected to withhold the Tramadol because Tramadol mixed with Lortab can cause respiratory depression and its addictive qualities can be subject to abuse. Dr. Regier did not examine Kenyon's hand before making this decision. Docket 30. When an outside provider prescribed Tylenol #3 because Kenyon was continuing to experience pain, however, staff decided that considering Kenyon's susceptibility to liver damage, it would be safer to place him back on Tramadol. Health Services increased Kenyon's prescription upon his request. Kenyon reported that the drugs were working to "take the edge off of pain." Docket 25-28.


"Summary judgment is appropriate when the evidence, [7] 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). A genuine issue of material fact contains enough facts to state a claim to relief that is plausible on its face, not merely conceivable. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). If a claim for relief is factually unsupported, summary judgment is appropriate to dispose of the claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

"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, 821 F.2d at 522. 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 ...

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