United States District Court, D. South Dakota, Southern Division
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
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.
FACTS ALLEGED IN THE SECOND AMENDED COMPLAINT
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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.
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.
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).
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 ...