United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION, GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT, GRANTING AND DENYING OBJECTIONS, AND GRANTING MOTION TO APPOINT COUNSEL
KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE
Plaintiff, Eric James Coon, an inmate at the South Dakota State Penitentiary, filed a complaint under 42 U.S.C. § 1983 on November 5, 2014. Docket 1. The matter was referred for a report and recommendation to Magistrate Judge Veronica L. Duffy pursuant to 28 U.S.C. § 636(b)(1)(B) and this court’s October 16, 2014 standing order. Defendant, Dr. Carpenter, moves for summary judgment. Docket 32. Magistrate Judge Duffy recommends this motion be granted in part and denied in part. Docket 46. Coon and Dr. Carpenter object to the report and recommendation. Docket 48; Docket 50. For the following reasons, the report and recommendation is adopted in part, Dr. Carpenter’s and Coon’s objections are overruled, Dr. Carpenter’s motion for summary judgment is granted in part and denied in part, and Coon’s motion to appoint counsel is granted.
Dr. Carpenter is employed by the South Dakota Department of Health as the Medical Director for Corrections Health. Docket 35 at ¶ 6. When making decisions regarding requests for treatment, Dr. Carpenter relies on the contents of medical reports from the inmate’s medical providers. Id. at ¶ 8. Coon is incarcerated in the South Dakota State Penitentiary. Docket 1. In early 2011, Coon injured his knee while running. Docket 40 at ¶ 2.
In February 2011, Coon’s knee was x-rayed. Docket 40-1 at 9. The x-ray “show[ed] degenerative changes in the L[eft] knee consistent with arthritis.” Id. On June 20, 2011, a request was submitted for orthotics for Coon. Id. at 2. This was denied. Id. In July 2011, Coon went to health services to ask about his request. Docket 40-2 at 2. He told health services that he was doing stretches, exercises, and taking NSAIDs. Id.
Coon filled out a KITE request slip on August 26, 2011 complaining about his knee problem and saying he used sleeves, braces, x-rays, and medications, but also requesting an MRI. Docket 40-1 at 6. On September 6, 2011, Coon complained of knee pain to prison health services. Docket 35-1. He said his pain was not relieved by meds or orthotics. Id. At the follow-up examination, Coon requested an MRI “to evaluate any further damage.” Docket 40-1 at 9. Certified Nurse Practitioner (CNP) Ryan Manson explained to Coon that other treatments must be tried before an MRI would be authorized. Id. Manson scheduled a knee injection. Id. The next week, Coon received a therapeutic injection. Docket 35-3.
A second x-ray on November 23, 2011 revealed that there was “no change in mild degenerative changes” in the knee. Docket 34 at ¶ 13; Docket 35-4. After the x-ray, Coon’s knee pain continued. Docket 40-1 at 15. On December 5, 2011, Coon complained to Correctional Health Services of an ongoing knee issue, and he reported that he had injured the knee three weeks ago. Docket 40-1 at 16. During the exam, he said the therapeutic injection helped. Id.
On January 12, 2012, Coon filed an informal resolution request. Docket 40-2 at 4. He complained to health services about his knee for what he claimed to be the tenth time in the last four months. Docket 40-2 at 4. He said he received a shot last month, but his relief “didn’t last long.” Docket 40-2 at 4.
On January 31, 2012, Coon was seen by CNP Manson to follow-up on his complaints of knee pain. Docket 35-5. Coon claimed to have had knee pain for over a year. Id. He said that Lodine, his pain medication, and a knee sleeve were not relieving his pain, but that the injection helped “quite a bit.” Id. CNP Manson requested that Dr. Carpenter authorize an MRI. Id. On February 9, 2012, Dr. Carpenter recommended another injection instead of an MRI. Docket 35-6. In a follow-up exam after this injection, Coon told Manson that the pain in his joint had decreased, but the pain behind the left knee continued. Docket 35-8.
Coon’s knee was x-rayed again on November 7, 2012. Docket 40-1 at 14. A “Radiology Correspondence” afterwards stated that while the x-ray showed degenerative changes, there were no new changes. Docket 40-2 at 16. Coon was also told to continue with his current treatment. Id.
On November 20, 2012, Coon was seen by CNP Manson to follow-up with his complaints of knee pain. Docket 35-9. Coon explained that neither the two injections nor the Lodine helped his pain significantly. Id. CNP Manson noted that Coon had tried numerous treatments. Id. CNP Manson requested a single physical therapy visit, which was approved on December 11, 2012. Id; Docket 35-10. At the beginning of 2013, Coon appears to have been doing physical therapy exercises in his cell. Docket 40-2 at 2; Docket 40-3 at 3.
Coon was next seen on June 20, 2013. Docket 35-13. He again complained about knee pain and stated that he had been doing physical therapy exercises. Id. On November 5, 2013, he was seen again for his knee pain. Docket 35-15. In his report, CNP Manson stated that Coon had received multiple injections, taken a number of NSAIDs, used a knee sleeve, and performed routine physical therapy for a year without experiencing significant relief. Id. CNP Manson submitted another request to Dr. Carpenter for an MRI. Id. This was declined as “non-emergent” by Dr. Carpenter. Docket 35-16.
On January 2, 2014, Coon complained to prison medical staff about a new symptom: pain shooting down his heel. Docket 35-17. The report again mentioned that Coon was given injections, had taken medications, and had been performing routine physical therapy for a year without significant relief. Id. In February, Dr. Regier agreed that Coon should have an MRI completed, Docket 35-18, and submitted a request for an MRI. Docket 35-19. This request was approved. Id.
On February 21, 2014, an MRI was performed on Coon at Avera McKennan Hospital & University Health Center. Docket 35-20. The MRI found “a complex tear of the lateral meniscus body with significant volume loss, ” “marginal osteophyte formation, ” “some cist formation, ” “cartilage thinning with full-thickness fissuring and subchondral osteophyte formation, ” “complete avulsion of the posterior root of the medial meniscus, ” “marginal osteophyte formation and edema, ” “[n]ear full-thickness mesial aspect of medial femoral condylar cartilage defect, ” “[f]issuring on both sides [of] the joint, ” “joint effusion, ” a “[m]oderate-sized Bakers cyst, ” and an extruded meniscus. Docket 40-4 at 15-16.
On March 11, 2014, Dr. Regier requested an orthopedic consultation. Docket 35-21. Dr. Carpenter declined, stating on the form, “chronic condition - recommend [physical therapy] to see if strengthening improves symptoms[.]” Id. In her affidavit, Dr. Carpenter claims she made this decision because she believed physical therapy may have improved Coon’s symptoms. Docket 35 at ¶ 37. She also believed that the orthopedic physician examining Coon would want the knee muscles to be as strong as possible before considering surgical options. Id. Coon was approved to undergo physical therapy. Docket 35-22.
Coon was evaluated by physical therapist Drew Schelhaas on April 17, 2014. Docket 40-4 at 22. The evaluation states that Coon had been doing exercises provided by the clinic. Id. It also states that Coon’s pain and his instability problems should benefit from physical therapy, and, in Schelhaas’ professional opinion, Coon “would require skilled physical therapy to work on the pain and decreased control in his left knee.” Id. at 24. On April 22, 2014 Schelhaas recommended that Coon would benefit from a consultation with an orthopedic surgeon. Id. at 26.
On May 7, 2014, Coon had another follow-up with prison medical staff for his knee pain. Docket 35-24. He complained that his symptoms were increasing and that he was in constant pain. Id. The report states that Coon “had physical therapy on a home basis for the past two years but has had more intense therapy recently following a physical therapy consult.” Id. It also states Schelhaas “did not feel there was any significant change or benefit from therapy and . . . advise[d] consideration be given to orthopedic consultation.” Id. Dr. Regier resubmitted the request for an orthopedic consultation. Docket 35-25. This was approved by Dr. Carpenter on May 8, 2014. Id.
Coon was seen by Dr. Peterson at CORE orthopedics on May 20, 2014. Docket 35-26. Dr. Peterson discussed both operative and non-operative options with Coon. Id. at 1. Dr. Peterson’s report states, “I have recommended arthroscopic surgery for the left knee. . . . I cannot make his knee completely better, but I can improve his symptoms. He will need total knee replacement some day [sic], but hopefully that is over 10 years out.” Id. at 2. Dr. Regier requested approval for surgery on June 5, 2014. Docket 35-27. Dr. Carpenter approved the surgery request the same day. Id. Coon received knee surgery at Avera McKennan hospital on July 11, 2014. Docket 35-28.
After his surgery, Coon performed physical therapy to strengthen his knee. Docket 35-38. His physical therapist commented that Coon was placing weight on his left leg at first but was told not to. Id. He also performed physical therapy outside of the doctor’s office. Id. He had numerous medical follow-ups to check on his progress. Docket 35-29; Docket 35-30; Docket 35-31; Docket 35-32. No request from medical staff was refused by Dr. Carpenter post-surgery.
On January 1, 2015, Dr. Regier requested approval for another MRI of Coon’s knee. Docket 35-35. The request was approved, and the MRI was conducted. Dr. Peterson reviewed the MRI and wrote this in his report,
Unfortunately, the degenerative changes appear to be advancing. He is not a candidate for any sort of arthroscopic treatment at this point in time. It does not appear that he healed his meniscus repair. He just had too much degenerative change to begin with and I am uncertain about his level of compliance postoperatively. I do not recommend any sort of surgical treatment right now. He will need medical treatment for ...