United States District Court, D. South Dakota, Southern Division
ORDER REJECTING REPORT AND RECOMMENDATION, GRANTING SECOND AMENDED COMPLAINT, DISMISSING SECOND AMENDED COMPLAINT IN PART AND DIRECTING SERVICE IN PART, AND DENYING MOTION ON SERVICE
KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE
Plaintiff, James Elmer Shaw, an inmate at the South Dakota State Penitentiary, filed a complaint under 42 U.S.C. § 1983 on July 7, 2013. Docket 1. The matter was referred 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. Magistrate Judge Duffy screened Shaw’s complaint pursuant to § 1915A and recommends dismissing certain defendants and directing service of the complaint on the remainder of the defendants. Docket 14. In response, Shaw moves to amend his complaint. Docket 19. He also moves to waive the obligation of serving defendants with copies of his complaint. Docket 21. For the reasons stated below, Shaw’s motion to amend is granted, the report and recommendation is rejected as moot, Shaw’s second amended complaint is dismissed in part under § 1915A and survives screening in part, and Shaw’s motion to waive service is denied.
FACTUAL BACKGROUND 
According to Shaw’s second amended complaint, Shaw began complaining of pain in his right knee to prison staff in 2004. Docket 19-1 at ¶ 26. Between that time and November 2006, Shaw had an MRI taken of his right knee. Id. at ¶ 27. The MRI showed a “tear of the posterior horn of lateral meniscus[, ]” a “small Baker’s cyst[, ]” and a “lesion off of the posterior fibula” in Shaw’s right knee. Id. at ¶ 28.
Dr. E. Hermanson examined Shaw at the Avera Orthopedic Institute on May 5, 2008, and recommended immediate surgery on Shaw’s right knee and better fitting shoes to decrease Shaw’s pain. Id. at ¶ 29. On May 29, 2008, a physician’s assistant at SDSP recommended that Shaw be provided better shoes. Id. at ¶ 30. Dr. Eugene Regier denied this recommendation. Id. Shaw claims that Department of Corrections (DOC) officials deny requests for shoes because DOC policy now classifies them as “comfort items, ” even when recommended by health officials. Id. at ¶ 34. Prison officials also informed Shaw that he would not be allowed to see an orthopedic surgeon because of budget cuts, even though a physician’s assistant at the prison had recommended he be seen by an orthopedic surgeon. Id. at ¶ 31.
Dr. Zoellner, an orthopedist, recommended surgery and better shoes for Shaw after an August 2, 2009, examination. Id. at ¶ 33. This recommendation was also denied. Id. On October 9, 2009, another orthopedist recommended surgery for Shaw’s right knee. Id. at ¶ 36. An orthopedic consultation recommended by a prison physician’s assistant was denied without explanation. Id. at ¶ 37.
On July 9, 2010, while working in the prison kitchen, Shaw slipped on the wet floor and reinjured his right knee. Id. at ¶ 38. Shaw was in extreme pain and went to health services. Id. He was given crutches and a medical order that he not work for seven days. Id. His knee was x-rayed at sick call the next day. Id.
In an examination on August 24, 2011, Shaw complained to Dr. Regier that his right knee was locking up and causing him pain and that his left knee was causing him pain because he was favoring it. Id. at ¶ 39. During that examination, Shaw learned of Dr. Hermanson’s recommendation for surgery for the first time. Id. Dr. Regier did not respond when Shaw asked him why the recommendation had not been followed. Id. Dr. Regier requested another orthopedic consultation, which was denied by Health Care Management Technologies, Inc. (HCMTI), the entity responsible for responding to requests for medical treatment at that time. Id. at ¶¶ 25, 39. According to the second amended complaint, in order for recommendations to be granted, Dr. Regier needed to make two requests, which he failed to do. Id. at ¶¶ 39, 40.
On November 1, 2011, while working in the prison kitchen, Shaw slipped on the wet floor again, reinjuring his right knee and injuring his left knee. Id. at ¶ 41. In December 2011, Dr. Regier requested an MRI for Shaw’s right knee. Id. at ¶ 43. Dr. Mary Carpenter denied this request. Id. Audrey Shedd, head nurse at the Jameson Annex where Shaw was incarcerated at the time, allegedly told Shaw’s Unit Coordinator (UC) that Shaw was denied any treatment for his right knee. Id. at ¶¶ 44, 45. Shedd issued a medical order on July 12, 2012, stating that ice provided under prior medical orders would be considered a “comfort item” and was no longer medically necessary. Id. at ¶ 47.
At sick call, on August 11, 2012, Shaw received another recommendation for ice and a pillow to elevate his knee. Id. at ¶ 48.
In October 2012, Shaw’s knee was x-rayed again. Id. at ¶ 50. Following a recommendation by Dr. Regier, an MRI was taken of Shaw’s knee, and it revealed a new ligament tear, a new medial meniscus posterior horn tear, increased cartilage defects, and a Baker’s cyst. Id. When these findings prompted another request for surgery, Dr. Carpenter denied the request. Id.
On June 14, 2013, Dr. Jeffrey Kalo operated on Shaw’s right knee. Id. at ¶ 51. After surgery, Dr. Kalo told Shaw that his ACL was irreparable, he would never walk as he did before, and he would be in pain for the rest of his life because of the delay in surgery. Id. at ¶ 52. Nurses at JPA ordered that Shaw use an exercise bike, medical ice, and a pillow to aid his healing. Id. at ¶ 53. These medical orders were renewed until he was transferred to SDSP when Heather Bowers, Head Nurse at SDSP, denied these requests because she was skeptical that Shaw needed them. Id.
Shaw was given a knee brace for his right knee. Id. at ¶ 54. He complained to nurses at SDSP on September 3, 2013, and requested the brace be adjusted. Id. Dr. Carpenter denied this adjustment because it was cost prohibitive, which made the brace useless to Shaw and debilitated him. Id.
On February 24, 2014, Dr. Carpenter issued a memo stating that special shoes, medical showers, and pillows were considered non-medical items and requests for them would be decided by DOC staff members rather than contracted medical providers. Id. at ¶ 55.
An x-ray on May 8, 2014, showed degeneration of Shaw’s left knee joint. Id. at ¶ 56. An MRI in August of 2014 revealed a chronically torn ACL and cartilage damage to Shaw’s left knee. Id. at ¶ 57. A nurse at SDSP reviewed the MRI results, said that surgery was necessary, and submitted a request on August 28, 2014, for an orthopedic consultation. Id. at ¶ 58. On September 16, 2014, a nurse told Shaw that Dr. Carpenter denied the orthopedic consultation because of budget cuts. Id. On December 11, 2014, the request for an orthopedic consultation was resubmitted, but Dr. Carpenter denied it again. Id. at ¶ 59.
On March 9, 2015, Dr. Kalo performed an arthroscopy on Shaw’s left knee. Id. at ¶ 60. He found, however, that reconstruction of Shaw’s ACL was impossible due to the delay in conducting the procedure and that Shaw would have to live with pain until he could get a knee replacement when he was about 60 years old. Id. Dr. Kalo recommended that Shaw elevate and ice his knee until the pain and swelling subsided. Id.
On March 9, 2015, Shaw asked UC Jacob Glaser to move him to a cell for handicapped inmates because Shaw could not get in and out of the bunks in a normal cell. Id. at ¶ 61. Glaser told Shaw he would have to move other inmates to accommodate this request even though there was an empty, handicap accessible cell. Id. at ¶ 62. Glaser told the other inmates that they could “thank Shaw” for the move. Id. at ¶ 63. Shaw believed this put him in danger of retribution, which was made worse by the fact that his knee injury already made him vulnerable to attack. Id. at ¶¶ 62, 63. The other inmates threatened Shaw. Id. at ¶ 63. Because of this and to avoid being assaulted, Shaw refused housing and was sent to the Segregated Housing Unit (SHU). Id. at ¶ 64.
In the SHU, Shaw was denied water, ice, his medication, his crutches, and a blanket and was told by a correctional officer that Unit Manager (UM) Al Madsen had instructed them not to give Shaw anything. Id. at ¶¶ 65, 66. When Shaw asked Madsen the reason for the treatment, Madsen said “It sucks to get your way all the time, doesn’t it?” and walked away. Id. at ¶ 67.
On March 11, 2015, Shaw was released from the SHU, and UM Sam Badure told him he would have to move cells with his cellmate. Id. at ¶ 68. This was the same situation Shaw previously refused. Id. When he told Badure he would be attacked and he was vulnerable, she responded “You’ll have to deal with that if it arises.” Id. at ¶ 69. Shaw again elected to go to the SHU. Id.
Later on March 11, 2015, Shaw requested medical ice, which his doctor had ordered, and a change of bandages. Id. at ¶ 73. The correctional officer in the SHU told him that he could go to sick call the next day. Id. There, he received ice, but Shedd refused to give him a pillow or change his bandage. Id. at ¶ 75. He also requested the pain medication Dr. Kalo prescribed to him after surgery but was told that Shedd did not believe he needed medication because the surgery was not that serious. Id. at ¶ 76. Prison medical officials told him he needed to “man up.” Id. On March 13, 2015, at sick call, Shaw’s bandage was changed. Id. at ¶ 77.
On March 16, 2015, Shaw went to Associate Warden Troy Ponto’s office and explained that he could not stay in the cell he was in because he could not get into the bed and was sleeping on the floor. Id. at ¶ 78. Ponto told Badure to move Shaw to the empty handicap accessible cell. Id.
Shaw complained to prison medical officials that his knee was infected because of lack of treatment post-surgery. Id. at ¶ 79. On March 18, 2015, Dr. Kalo examined him, recommended anti-biotics, and extended his prescription for pain medication. Id. at ¶ 80.
Around the beginning of April, Shaw was transferred from JPA to SDSP proper. Id. at ¶ 81. Shaw had trouble taking showers because prisoners must walk down steps to get to the showers in the East Hall of SDSP. Id. at ¶ 83. East Hall has medical showers that are on the ground floor and are only a short walk from Shaw’s cell. Id. At sick call, he asked for permission to use the medical showers and an order that he not be forced to use the stairs, but the request was denied by Bowers. Id. at ¶¶ 44, 84, 85.
On May 1, 2015, an employee of Orthotic & Prosthetic Specialties (O&P) fit Shaw with a brace for his leg. Id. at ¶ 86. Shaw was unhappy with the caliber of brace and claims that it never fit properly and caused him pain rather than providing him support. Id. Three days later, he complained to Bowers, who sent him back to O&P to adjust his brace. Id. at ¶ 87. He went back to O&P, but the employee’s attempt to adjust the brace did not help. Id. When he asked Bowers to allow him to go back to O&P a third time, she refused. Id.
On May 10, 2015, Shaw slipped in the shower, injuring his left shoulder, left elbow, and back. Id. at ¶ 88. He complained of these injuries at sick call. Id. at ¶ 89. Because he was not receiving treatment for his injuries, he wrote to Dr. Kalo, Warden Darin Young, Dr. Regier, and UM Bieber, telling them that he was in pain and suicidal. Id. at ¶ 90.
Shaw was again denied a no-stair order by Bowers and UM Derick Bieber. Id. at ¶ 91. Shaw asked that Bieber put him in the SHU because he would not have to walk up and down stairs to get to the shower. Id. at ¶ 92. Shaw was put in the SHU, and he went on a hunger strike. Id. at ¶ 93. After four days of refusing food and water, Shaw was called into Dr. Regier’s office. Id. at ¶ 94. Shaw explained his actions and threatened to sue the prison. Id. Dr. Regier told him things would be worse if Shaw sued, and told him if he stopped his hunger strike, he would get a no-stair order. Id. Shaw agreed. Id.
On October 28, 2015, Shaw met with Dr. Regier and Bowers. Id. at ¶ 96. Shaw described the pain he was suffering, and Dr. Regier told Bowers to make appointments for Shaw to see an orthopedist and a neurologist as soon as possible. Id. An orthopedic consultation was scheduled, but Bowers decided to see what the orthopedist said before scheduling a neurology consultation. Id. at ¶¶ 97, 98.
On November 17, 2015, Shaw had an appointment at CORE Orthopedics where they changed his medication, gave him a cortisone shot in the right knee, requested x-rays and a follow-up, and recommended Shaw see a neurologist for his back pain. Id. at ¶ 99. Two days later, correctional health services x-rayed Shaw’s knees and lower back. Id. at ¶ 100.
In May 2015, Shaw began trying to review his medical records. On May 6, 2015, he was told by the SDSP medical records department that he could review his records in a couple weeks but some of his records would be withheld, including records from outside providers. Id. at ¶ 119. Then he was told he could not review these records because he did not have the funds to pay the fee. Id. at ¶ 120. In June 2015, Bowers denied Shaw’s requests for copies of DOC policies and medical reports from outside providers and prison officials. Id. at ¶¶ 122, 123. Shaw complained to Glaser about these denials, but Glaser did nothing. Id. at ¶ 124.
When Shaw was examined at CORE Orthopedics, he asked them to send him his medical records, and they agreed. Id. at ¶ 99. On November 18, 2015, he requested that the prison give him his mail from CORE. Id. at ¶ 126. He was called into correctional health services two days later and given his October 1, 2015 records from Avera. Id. at ¶ 127.
Shaw went to sick call on November 23, 2015, and asked the nurse assessing him about his neurological consultation. Id. at ¶ 102. She did not respond. Id. He also asked to see the files concerning his knee treatment and request for better shoes. Id. at ¶ 128. The nurse left to ask Bowers. Id. When the nurse returned, she told Shaw that there was neither a request nor a denial on file for these treatments. Id. Shaw said he had the recommendations from Avera but was never given the treatment, so they must have been denied. Id. He told the nurse he needed the information to write his complaint. Id. When Shaw explained to her what he was putting in his complaint for this lawsuit, she became mad and ended the assessment. Id.
Later that day, Bowers ordered a shakedown of Shaw’s cell. Id. at ¶ 103. She alleged that Shaw stole medical records during his sick call and ordered that he be sent to the SHU. Id. A correctional officer came to Shaw’s cell and asked him the location of the stolen medical records. Id. at ¶ 146. Shaw was taken to a medical holding cell and strip searched. Id. The medical records Shaw had in his cell were confiscated along with numerous other belongings, including his legal documents. Id. at ¶ 129. Fifteen minutes later, the correctional officer returned and gave Shaw a folder that had been emptied of the medical records sent to him by Avera. Id. at ¶ 148. He was sent to the SHU later that day for investigative purposes. Id. at ¶ 149. He was not served with a disciplinary report or charged with a rule infraction. Id.
In the SHU, Shaw asked for medical treatment. Id. at ¶ 104. The correctional officer smirked at him and refused, telling Shaw that Bowers stopped his medical treatment. Id. at ¶¶ 104, 105. After three days in the SHU, Shaw’s back spasmed, he fell and injured his back, elbow, shoulder, and neck. Id. at ¶ 106. He asked for help but was told to wait four more days and go to sick call. Id. Since this fall, Shaw’s lower back has been in constant pain. Id.
On December 1, 2015, he was returned to East Hall after eight days in the SHU. Id. at ¶ 107. His legal papers and medical records were all gone. Id. at ¶ 150. According to DOC policy, prison officials should have charged him with a violation or talked to him about the investigation before searching his cell, confiscating his possessions, and sending him to the SHU. Id. at ¶ 152.
On his way to sick call the next day, Shaw’s back spasmed again, and he fell to the ground. Id. at ¶ 108. CO Perrett, the correctional officer who was escorting Shaw to sick call, yelled at him to get up and taunted him while he was on the ground. Id. Down the hallway came Young, Ponto, and Bieber, and they heard what Perrett had said. Id. Ponto told Perrett to get a wheelchair for Shaw. Id.
At sick call, Shaw waited three hours to be seen. Id. at ¶ 109. Eventually, a nurse came and told him that they were not seeing any more patients that day and that Bowers and Dr. Regier had decided he did not need the wheelchair. Id. Shaw was allowed to use the wheelchair to return to East Hall. Id. Once he got back, CO Perrett angrily confronted Shaw, telling him to get out of the chair. Id. at ¶ 111. Another correctional officer intervened, saying they should let Shaw use the wheelchair to get back to his cell. Id. CO Perrett relented, but told Shaw that he would not get away with making him look bad in front of the warden. Id.
On December 2, 2015, Shaw met with Ponto and Bowers. Id. at ¶ 112. He complained that he had suffered eight months of back pain without seeing a neurologist and that Bowers was telling people he was faking his pain to get drugs. Id. at ¶¶ 112, 113. Bowers said he was ...