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Ross v. Carpenter

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

June 8, 2016

TRAVIS ROSS, Plaintiff,
DR. MARY CARPENTER, in her individual and official capacities, Defendant.



         Plaintiff, 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.


         In a 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).

         Dr. 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. LR 56.1(D).

         II. FACTS

         Dr. 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.

         Upon 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. Dr.

         Condron 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.

         On 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."[1] Doc. 20-4 at 6.

         Manson 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 8-10.

         On 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 ...

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