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Dubois v. Hanvey

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

August 29, 2016

CHAD DUBOIS, Plaintiff,
MICHAEL JOE HANVEY, Physician's Assistant, Mike Durfee State Prison, in his individual and official capacities; DR. MELVIN WALLINGA, Chief Physician, Mike Durfee State Prison, in his indidivual and official capacities; and DR. MARY CARPENTER, Employee of South Dakota Department of Health, in her individual and official capacities, Defendants.




         Plaintiff, 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.


         On 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.[1] 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 ¶ 1.

         Before 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.

         Around 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.

         On 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.

         Two 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.

         The 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.

         On 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.

         Later 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.

         On 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.

         On 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.

         On 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 at 2.

         On 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.

         On 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.'" Id.

         On that 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.[2]

         On August 11, 2015, DuBois filed this complaint pursuant to § 1983.

         Docket 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 ...

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