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East v. Minnehaha County

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

April 10, 2017

DONALD EAST, Plaintiff,
v.
MINNEHAHA COUNTY, STATE OF SOUTH DAKOTA, MIKE MILSTEAD, JEFF GROMER, LIEUTENANT HICKS, LIEUTENANT AXSOM, CORPORAL THORSON, DR. KASTRE, DR. HEISLER, LINDA OSBORNE, JESSICA HOFFMAN, NURSE TAYDRA, DENNY KAEMINGK, DARIN YOUNG, ROBERT DOOLEY, LIEUTENANT LOEWE, MICHAEL JOE HANVEY, DR. BENJAMIN AAKER, Defendants.

          OPINION AND ORDER GRANTING MOTION TO AMEND COMPLAINT, DISMISSING COMPLAINT IN PART AND DIRECTING SERVICE IN PART, AND DENYING MOTION TO APPOINT COUNSEL

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

         Plaintiff Donald East ("East") filed this lawsuit pursuant to 42 U.S.C. § 1983. Doc. 1. East is an inmate at the Mike Durfee State Prison in Springfield, South Dakota. East amended his complaint once, Doc. 10, and this Court screened his amended complaint pursuant to 28 U.S.C. § 1915A, Doc. 11, dismissing it in part but allowing East's Eighth Amendment claim to proceed. For the following reasons, this Court now grants East's motion to amend his complaint anew, dismisses his complaint in part, directs service in part, and denies his motion to appoint counsel.

         I. FACTS ALLEGED IN THE SECOND AMENDED COMPLAINT[1]

         In March of 2013, while East was incarcerated in the Minnehaha County Jail (MCJ), he developed a blister on his toe from playing basketball. Doc. 17-1 ¶ 25. The blister eventually burst. Id. According to East, the resulting wound was not treated by jail medical staff even though East repeatedly warned them that it was getting worse. Id.

         Between March and August of 2013, East's foot was examined by Dr. Heisler, the Primary Care Physician at MCJ. Id. ¶ 26. Dr. Heisler ordered only ointment and a cotex band wrap. Id. When Dr. Litsz replaced Dr. Heisler in August of 2013, Dr. Litsz allegedly told East his foot was infected and requested approval for him to be seen at Avera. Id.

         In August of 2013, East went to Avera for treatment of his foot. Id. ¶ 27. He was prescribed Bactrim for the infection, but by this time, the infection was so severe that his symptoms got worse, even with the medication. Id. A doctor at Avera allegedly told East he should have been seen in June of 2013 at the latest. Id.

         On September 4, 2013, East had an MRI done on his foot and was diagnosed with osteomyelitis of the fifth metatarsal and proximal fifth phalanx. Id. ¶ 28. Three weeks later, he had surgery to remove the fifth toe on his right foot. Id. ¶ 29. Before leaving the hospital, East had a PICC line put in his arm and was given two medications to kill any remaining infections. Id. ¶ 30.

         East was told by nurse Amber at MCJ that he would only receive ibuprofen and Tylenol for pain rather than hydrocodone, as the hospital had ordered. Id. ¶ 31. East alleges that he was not allowed to shower for five days in a row because jail staff would not give him anything to cover his PICC line to keep it dry in the shower. Id. ¶ 32. He grieved this issue, but he was ignored. Id.

         During his incarceration at MCJ, East's IVs were manually administered by nurse Linda Osborne. Id. ¶ 33. East claims that on numerous occasions, Osborne gave him too much medicine, which caused intestinal issues and excessive bowel movements, and she did not use gloves to administer his IVs. Id. ¶¶ 34-35. Osborne and nurse Jessica Hoffman also allegedly ignored East's complaints of severe pain. Id. ¶ 36.

         On October 10, 2013; Hoffman and another nurse told East that his foot might have to be re-stitched and that it might be infected again. Id. ¶ 38. The same day, he saw Dr. Bipito who was worried that the PICC line was infected and told East he may have to go to Avera to get a new one. Id. ¶ 39. Nurses at Avera allegedly told East that Osborne was administering his IVs incorrectly and that he should come to Avera to have them administered. Id. ¶ 40.

         Two days later, he was told by MCJ staff that he would not receive further pain medication because he was refusing medication. Id. ¶ 41. He grieved the issue to medical staff, telling them he had refused medication because he believed MCJ medical staff members were trying to kill him rather than because he did not need the medication. Id. Osborne responded, denying the allegations. Id.

         Later that day, East put extra socks on his foot because it was cold. Id. ¶ 42. When he told one of the private nurses at MCJ that he was having problems keeping his foot warm, she said he needed immediate medical help. Id. East was taken to Avera two hours later and stayed there for three days. Id. The nerves in his lower leg allegedly had stopped working; the doctors at Avera believed he was suffering from Raynaud's Disease. Id.

         On October 15, 2013, East was seen by Dr. Litsz who prescribed Tylenol, ibuprofen, and Gabapentin (which East refers to as Gabby Penton in his second amended complaint). Id. ¶ 43. Dr. Litsz also requested that East receive his IVs at Avera. Id. According to East, Osborne yelled at him later that day, calling him a liar, saying nothing was wrong with his leg, saying she would administer his IVs, and ordering him to stop telling lies to his doctors. Id. He wrote a grievance to the Sergeant, Lieutenant, and Warden, telling them about the problems he was having with jail medical staff. Id. ¶ 44. Corporal Thorson responded, telling East that MCJ medical staff could administer his IVs. Id.

         According to East, a number of problems occurred around this time with the administering of his IVs: Osborne stored his IV pole in a place where it could get contaminated, id. ¶ 45, East noticed his IV bag was expired, but when he pointed this out, nurse Taydra said it was fine, id. ¶ 46, East . overheard Hoffman complaining that, because East had seen the IV bags were expired, MCJ now had to order new ones, id. ¶ 47, and MCJ staff began administering his TVs in a dirty holding cell. Id. ¶ 48. East also met with Dr. Bipito who confirmed there was a minor infection in his PICC line. Id. ¶ 50.

         On November 3, 2013, East had stomach pains and turned purple while MCJ medical staff were administering his IV. Id. ¶ 52. He was taken to the Avera Emergency Room. Id. When he was sent back to MCJ, he was put in lockdown by Taydra, even though he continued to be ill. Id. The next day, Dr. Litsz told East that his pain was from receiving too much medication and not eating enough food. Id. On November 6, 2013, East woke up with blood coming from his PICC line. Id. ¶ 53. He allegedly was not seen by medical staff for hours, and when he was, they merely wrapped a cotex band around it and told him to keep an eye on it. Id.

         On November 7, 2013, his PICC line was removed, and he was placed in general population. Id. ¶ 54. East found this overwhelming and asked to be sent back to isolation, but MCJ staff denied this request. Id. A couple of days later, he was transferred to the Jameson Annex at the South Dakota State Penitentiary. Id. ¶ 56. During East's medical assessment before being incarcerated at the Jameson Annex, the doctor allegedly told him that he had Raynaud's Disease because of the mishandling of his PICC line. Id.

         East alleges that he was sexually assaulted multiple times in the Jameson Annex. Id. ¶ 57. He reported this to Unit Manager Tammy Doyle and Special Security. Id. Special Security Lieutenant Loewe told him that they could not do anything about the assaults because they were not on camera. Id.

         On June 30, 2015, East began experiencing pain in his right foot. Id. ¶ 58. His foot was swollen and red. Id. He was taken to the Avera Emergency Room, and there he was diagnosed with a cellulite infection. Id.

         In September of 2015, East was still in pain. Id. ¶ 60. He had x-rays taken of his right foot, which showed a fracture. Id. East was immediately put in a walking boot. Id. In October of 2015, however, he saw Dr. Pederson at Avera who allegedly told him that he had been misdiagnosed. Id. ¶ 61. His foot was still fractured because he had been walking differently since his toe had been removed. Id. Dr. Pederson allegedly ordered East to be put in a cast and use a wheelchair. Id. Physician's Assistant Michael Joe Hanvey only allowed East to use the wheelchair for long distances and forced East to use crutches the rest of the time, allegedly saying that he did not care what Dr. Pederson ordered. Id.

         On April 13, 2016, East had surgery to remove the main joint of the big toe on his right foot. Id. ¶ 62. He also had his bones fused together with a plate and pins. Id.

         II. PROCEDURAL BACKGROUND

         On August 29, 2016, East filed his original complaint in this Court. Doc. 1. This Court ordered him to amend his complaint because he failed to name an identifiable defendant. Doc. 6. East amended his complaint, Doc. 10, and this Court screened it, dismissing it in part and directing service. Doc. 11. East now moves to amend his complaint for a second time. Doc. 17. He also again moves to be appointed counsel. Doc. 16.

         III. LEGAL STANDARD

         At this stage of the case, this Court must accept the well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. Schriener v. Quicken Loans, Inc., 774 F.3d 442, 444 (8th Cir. 2014). Civil rights and pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even with this construction, "a pro se complaint must contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985); Ellis v. City of Minneapolis, 518 F.App'x 502, 504 (8th Cir. 2013). Civil rights complaints cannot be . merely conclusory. Davis v. Hall, 992 F.2d 151, 152 (8th Cir. 1993); Parker v. Porter, 221 F.App'x 481, 482 (8th Cir. 2007).

         A complaint "does not need detailed factual allegations . . . [but] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "If a plaintiff cannot make the requisite showing, dismissal is ...


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