United States District Court, D. South Dakota, Central Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Travis Ross ("Ross"), filed this § 1983 action
against Dr. Mary Carpenter ("Dr. Carpenter"),
alleging that she was deliberately indifferent to his serious
medical needs in violation of his rights under the Eighth
Amendment. Doc. 1. This Court screened Ross's claim
pursuant to 28 U.S.C. § 1915(e)(2)(B), determined his
claim was sufficiently pleaded, and entered an Order
Directing Service of Complaint. Doc. 6. Dr. Carpenter then
filed a Motion for Summary Judgment. Doc. 18. For the reasons
explained below, Dr. Carpenter's motion for summary
judgment is granted.
previous Opinion and Order from this Court which denied Dr.
Carpenter's motion to stay discovery and protective
order, this Court ordered Ross to file his response brief to
Dr. Carpenter's motion for summary judgment
"twenty-one (21) days after receipt" of certain
discovery responses from Dr. Carpenter. Doc. 23 at 6.
Subsequent to that Opinion and Order, Dr. Carpenter's
counsel filed a Certificate of Service with the Court
confirming that discovery responses were mailed to Ross at
the Mike Durfee State Prison on February 11, 2016. Doc. 24.
Ross has not filed a response brief, and his time to do so
has expired. See Doc. 24; Doc. 23 at 6; see
also D.S.D. Civ. LR 7.1(B).
Carpenter complied with Local Rule 56.1(A) of the Civil Local
Rules of Practice of the United States District Court for the
District of South Dakota by filing a statement of material
facts along with her motion for summary judgment. Doc. 20.
Local Rule 56.1(B) requires the party opposing a motion for
summary judgment, to "respond to each numbered paragraph
in the moving party's statement of material facts with a
separately numbered response and appropriate citations to the
record." D.S.D. Civ. LR 56.1(B). All material facts set
forth by the moving party are deemed admitted "unless
controverted by the opposing party's response to the
moving party's statement of material facts." D.S.D.
Civ. LR 56.1(D). Ross did not file a response under Local
Rule 56.1(B). Nevertheless, to ensure that the facts are
viewed in the light most favorable to Ross as a pro se
litigant and as the non-moving party, this Court draws the
facts not only from Dr. Carpenter's statement of
undisputed material facts, but also from Ross's verified
complaint and the exhibits attached thereto. See Nickens
v. White. 622 F.2d 967, 971 (8th Cir. 1980);
Roberson v. Hayti Police Dep't, 241 F.3d 992,
995 ("[T]he facts alleged in a verified complaint need
not be repeated in a responsive affidavit in order to survive
a summary judgment motion."); see also McClanahan v.
Young. 4:13-CV-04140-RAL, 2016 WL 520983, at *1 (D.S.D.
Feb. 5, 2016). Those portions of Dr. Carpenter's
statement of material facts that do not conflict with
Ross's filings, however, are deemed admitted. D.S.D. Civ.
Carpenter is the Medical Director for Correctional Health for
the State of South Dakota Department for Health, and Ross is
in the custody of the South Dakota Department of Corrections,
currently housed at the Mike Durfee State Prison. Doc. 20 at
¶ 1; Doc. 20-1 at ¶ 1. During Ross's arrest on
the charges leading to his conviction, Ross was shot multiple
times, including once in the abdomen. Doc. 1 at 1-2; Doc. 20
at ¶ 2. One of the various medical procedures Ross
underwent as a result of those injuries was the placement of
a colostomy on June 17, 2013. Doc. 1 at 2; Doc. 20 at ¶
3; Doc. 20-4 at 1-4. Ross claims that the doctors in Rapid
City who performed these procedures "informed him that
after the injury had healed, a process called [a] colostomy
takedown should be performed to prevent any permanent loss of
his normal rectal functions." Doc. 1 at 2.
request from Ryan Manson ("Manson"), a Certified
Nurse Practitioner at the South Dakota State Penitentiary,
and with approval from Dr. Carpenter, Ross was seen by Dr.
Steven L. Condron ("Dr. Condron") with Avera
Gastroenterology at Avera Medical Group in Sioux Falls, South
Dakota on August 14, 2013, regarding the healing gunshot
wound to his abdomen and his colostomy. Doc. 20-3; Doc. 20-4
at 1-3. Dr. Condron noted that Ross was "doing
reasonably well from a bowel standpoint, " and had no
obstructive symptoms, no blood in his ostomy, no pain or
discomfort, and no nausea or vomiting. Doc. 20-4 at 1-2. Dr.
Condron also reported that Ross had no specific
gastrointestinal ("GI") complaints. Doc. 20-4 at 2.
then made the following impression notes:
I would recommend no further intervention from a GI
standpoint. Further consideration could be given to colostomy
takedown. I see no reason to refer him for that at this
point. He is a higher risk patient for a low-risk procedure
and he is doing quite well from a GI standpoint. I would
recommend supportive care and follow up with surgery if any
obstructive symptoms develop.
Doc. 20-4 at 2.
August 16, 2013, Ross met with Manson at the South Dakota
State Penitentiary. Doc.20-4 at 4-5. Manson confirmed
Ross's self-report that Ross's colostomy was having
good output. Doc. 20-4 at 4-5. Manson noted that no new
orders were given as a result of Ross's recent Avera
appointment with Dr. Condron and that Ross mentioned
discussions were had about a possible colostomy reduction in
six months. Doc. 20-4 at 4. Manson reviewed the Avera
dictation and noted that although Ross could be a candidate
for a colostomy reduction in the future, Avera
Gastroenterology "stated no reason to refer him for that
at this point." Doc. 20-4 at 6.
also saw Ross on September 19 and October 11, 2013. Doc. 20-4
at 8-10. Both records indicate that Manson confirmed
Ross's self-report of good colostomy output. Doc. 20-4 at
February 3, 2014, Ross was seen by Manson to discuss his
colostomy. Doc. 20-4 at 11. Ross requested to be considered
for a colostomy takedown that was previously discussed with
him back in August of 2013. Doc. 20-4 at 11. He reported that
he had not experienced any specific problems with his
colostomy and that it had been functioning well. Doc. 20-4 at
11. Considering that it had been approximately eight months
since Ross was given the colostomy and that Avera
Gastroenterology records did suggest that Ross would be
evaluated in the future for such a procedure, Manson filled