United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE
Chad DuBois, filed this pro se civil rights lawsuit under 42
U.S.C. § 1983. After the Court screened DuBois'
complaint pursuant to 28 U.S.C. § 1915A, it ordered that
defendants be served. Docket 6. Defendants now move for
summary judgment based on qualified immunity. Docket 24. In
response, DuBois moves to amend his complaint. Docket 31. He
also moves the Court for appointment of counsel, for
discovery, and for summary judgment. Docket 33; Docket 37;
Docket 39. For the following reasons, DuBois' motion to
amend is denied, defendants' motion for summary judgment
based on qualified immunity is granted, and DuBois'
remaining motions are denied.
December 27, 2013, DuBois was seen by Dr. Patrick J. Collison
at the Yankton Medical Clinic for a post-op visit following a
recent surgery he had on his ear. Docket 25-11. During this
visit, DuBois complained that both of his ears were draining
and that a tube that was recently put in his left ear had
come out. Id. at 1. A culture was taken of
DuBois' ears. Id. at 3. DuBois avers that this
was the first time he had a MRSA infection. Docket 55 ¶
DuBois received the results of this culture, he went to the
prison medical department to complaint about the drainage
from his right ear. Docket 25-13. The nurse told him to take
his ear drops, antibiotics, and pain reliever and to return
to medical if the symptoms worsened. Id. On December
31, 2013, DuBois received the results of his culture. Docket
55 ¶ 2. It showed an infection, and Dr. Collison put him
on Bactrim for two weeks. Id. ¶¶ 2-3;
Docket 25-12 at 1. On January 16, 2014, he finished the
antibiotics but was still experiencing ear problems, so he
went to sick call. Docket 25-13; Docket 55 ¶ 3. Two
weeks later, at his follow up with Dr. Collison, he had no
complaints about his right ear. Docket 25-12 at 1. By that
time, however, he said his left ear was emitting bloody
drainage. Id. Dr. Collison's exam revealed that
his ears appeared normal without pus or debris, and his
hearing was normal. Id.
February 7, 2014, DuBois went to sick call, complaining of an
earache. Docket 55 ¶ 4. Nurse Courtney Sirovy told him
that there was nothing she could do for his earache and there
was no provider at the prison that day. Id. DuBois
asked to speak to a provider through the Avera eCare system,
which he had done before. Id. Sirovy said "Well
I am not going to do that." Id. DuBois also
avers that Sirovy told him that he came to medical too often
and outside of permitted hours. Id.
February 10, 2014, DuBois went to sick call. Docket 55 ¶
5. He complained that he had drainage from his ears again.
Id. He asked for and received clean sheets because
his sheets were covered in the bloody drainage from the
previous night. Id. The nurse who gave him the
sheets told him that he would see a medical provider, but he
did not that day. Id.
days later, he returned to medical and asked why he had not
seen a provider. Docket 55 ¶ 7. The nurse at medical
noted red liquid coming out of DuBois' left ear. Docket
25-13. She ordered DuBois to return to medical before bed,
and they would cover his ear in gauze. Id. DuBois
did this, and the next morning, when the gauze was removed,
there was bloody drainage on the gauze. Id. A
supervisor was notified as was Physician's Assistant
Michael Hanvey, and Dr. Mel Wallinga ordered a culture of
DuBois' left ear. Id.; Docket 25-20. DuBois
believes that the reason his ear was wrapped in gauze was
because the medical department at the prison did not believe
that drainage was coming out of his ear. Docket 55
¶¶ 7> 8.
culture showed that DuBois had developed a MRSA infection.
Id. ¶ 9; Docket 25-15. He was given Bactrim for
fourteen days. Docket 55 ¶ 9; Docket 25-15. On February
19, 2014, DuBois complained to medical that his ears were
getting worse. Docket 55 ¶ 10- The Nurse said that his
ears looked painful, but told him to give the antibiotics
time to work. Id. On February 26, 2014, DuBois again
complained to medical. Id. ¶ 11. He told them
that he was losing his hearing. Id. The nurse did
not exam DuBois but told him to wait two days until his
appointment with Dr. Wallinga. Id. DuBois asked if
he could be seen that day but was denied. Id.
February 28, 2014, Dr. Wallinga examined DuBois. Docket
25-15. Dr. Wallinga noted drainage in DuBois' left ear,
and DuBois complained that he could not hear with his left
ear and that it was occasionally sore. Id. Dr.
Wallinga scheduled a follow up appointment with Dr. Collison,
ordered another culture, and prescribed Bactrim for ten days.
Id. Dr. Wallinga said that DuBois' hearing would
return after the infection was cured. Docket 55 ¶ 12.
that night, while he was in his cell, DuBois began to feel
sick and dizzy. Id. ¶ 13. He could not walk or
stand up and he began to vomit. Id. Correctional
Officers called the Unit Manager who brought DuBois to
medical. Id. DuBois told these officers that he
could not hear. Id. At medical, he told the nurse
about his symptoms and that he was totally deaf in his left
ear. Id. The nurse noted that DuBois' left ear
was clear, without redness or fluid, and contacted Hanvey to
ask him how to proceed. Docket 25-19 at 2. Hanvey ordered
that DuBois be kept in the infirmary overnight and monitored
in order to avoid dehydration. Docket 55 ¶ 13. In the
morning, medical released DuBois back to his cell. Docket
25-19 at 2. DuBois asked to be seen by a doctor, but was
denied. Docket 55 ¶ 14.
March 5, 2014, DuBois saw Dr. Collison. Docket 25-16. DuBois
told Dr. Collison that he went deaf five days earlier.
Id. Dr. Collison prescribed medication and set up a
follow-up with an audiologist. Id. at 3. On March
10, 2014, DuBois saw Audiologist Jason R. Howe who performed
hearing tests on DuBois. Docket 25-17. The audiometric tests
showed "moderate high frequency mixed hearing loss in
the right ear[, ]" and "sensorineural hearing loss
in the left ear." Id. at 2. DuBois had
"[n]o usable hearing [in his] left ear."
Id. The speech reception test showed 100% word
recognition in DuBois' right ear, but the record does not
state a recognition rate for his left ear. Id. Howe
ordered medication and a follow-up exam with an MRI.
Id. at 3. He recommended an audiology evaluation
after DuBois finished the treatment plan. Id.
March 17, 2014, DuBois saw Dr. Collison again. Docket 25-18.
DuBois also had an MRI done that day, and the results were
"negative for tumor or intracranial abnormality . . .
." Id. at 1-2. Dr. Collison ordered that DuBois
finish his medication and that his blood be tested.
Id. at 3. Hanvey reviewed this recommendation and
ordered that the medication be dispensed through the
medication line at the prison. Docket 25-19.
March 28, 2014, DuBois saw Dr. Wallinga and complained of
almost complete loss of hearing in his left ear. Docket
25-14. Dr. Wallinga noted that the hearing loss in
DuBois' left ear was from the previous MRSA infection.
Id. During DuBois' next follow-up with Dr.
Collison on April 7, 2014, Dr. Collison noted that
DuBois' hearing was unchanged since his previous meeting
in which DuBois had no usable hearing in his left ear. Docket
25-21; Docket 25-17 at 2. Dr. Collison assured DuBois that
his hearing issues would be resolved with time. Docket 25-21
April 30, 2014, DuBois saw Dr. Daniel W. Todd, an ear, nose,
and throat specialist. Docket 25-23. Dr. Todd found that
DuBois had conversational hearing and that he did not
misunderstand words. Id. Dr. Todd recommended DuBois
receive a bone-anchored hearing aid (BAHA). Id. On
June 12, 2014, Dr. Wallinga noted DuBois' decreased
hearing in his right ear and almost complete loss of hearing
in his left ear. Docket 25-25. On July 9, 2014, Dr. Collison
recommended DuBois receive a BAHA. Docket 25-26 at 4. A
request for a BAHA was submitted to Dr. Mary Carpenter, but
she denied it, stating that "surgical hearing
augmentation not medically necessary[.]" Docket 25-42.
February 18, 2015, DuBois saw Dr. Collison for a follow-up on
his hearing loss. Docket 25-30. Dr. Collison found that
DuBois' hearing loss was unchanged; he could not hear out
of his left ear. Id. at 1-2. Dr. Collison
recommended that DuBois receive a BAHA or a contralateral
routing of signals (CROS) hearing aid. Id. at 3.
During this appointment, Dr. Collison told DuBois that his
hearing loss was permanent. Docket 56-1 at 16. DuBois avers
that when he told Dr. Collison that the prison was not
treating his left ear, Dr. Collison said "that is a
clear way to lose [your] hearing by not treating the
earache." Id. DuBois told Dr. Collison
"that was the way I lost it in the first place[, ]"
and Dr. Collison "said Ya I know.'"
same day, DuBois saw the audiologist, Howe. Docket 25-31.
Howe found that DuBois had no usable hearing for his left
ear, but normal hearing for his right ear. Id. at 4.
He ordered an audiology evaluation in twelve months to
monitor the changes. Id. He also recommended DuBois
receive a BAHA or a CROS hearing aid. Id. Dr.
Carpenter approved a request for a CROS hearing aid on
February 20, 2015. Docket 25-43. DuBois received his hearing
aids on February 27, 2015. Docket 25-32.
August 11, 2015, DuBois filed this complaint pursuant to
1. His factual allegations state:
Inmate contacted medical services with extremely painful
MERSA [sic] infection. Nursing staff routinely taunted the
inmate, claimed he was faking, denied him treatment until
hearing loss became permanent. Treatment was belated and not
rendered until infection had destroyed all hearing in one ear
and partial hearing in the other. Requests for available
treatment were ignored and then denied by physician whose job
it was to provide adequate medical care. Physicians in charge
and the Warden himself failed utterly to supervise ...