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Shaw v. Ponto

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

June 16, 2017

JAMES ELMER SHAW, Plaintiff,
v.
TROY PONTO, ASSOCIATE WARDEN, INDIVIDUAL AND OFFICIAL CAPACITY; AL MADSON, UNIT MANAGER, INDIVIDUAL AND OFFICIAL CAPACITY; SAM BADURE, UNIT MANAGER, INDIVIDUAL AND OFFICIAL CAPACITY; DERICK BIEBER, UNIT MANAGER, INDIVIDUAL AND OFFICIAL CAPACITY; JACOB GLASIER, UNIT COORDINATOR, INDIVIDUAL AND OFFICIAL CAPACITY; DR. MARY CARPENTER, M.D. HEALTH SERVICES, INDIVIDUAL AND OFFICIAL CAPACITY; DR. EUGENE REGIER, MD, INDIVIDUAL AND OFFICIAL CAPACITY; HEATHER BOWERS, RN HEATH SERVICES, INDIVIDUAL AND OFFICIAL CAPACITY; AUDREY SHEDD, HEAD REGISTERED NURSE, INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.

          ORDER MOTION TO COMPLEL DISCOVERY [DOCKET 79]

          VERONICA L. DUFFY United States Magistrate Judge.

         INTRODUCTION

         This matter is before the court on plaintiff James Elmer Shaw's pro se fourth amended complaint pursuant to 42 U.S.C. § 1983, filed September 12, 2016. See Docket No. 41.

         The pending matter was referred to this magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and the April 13, 2017 order of the Honorable Karen E. Schreier, district judge. The court has reviewed Mr. Shaw's motion to compel along with his supporting documents, and the defendants' responsive filings.

         BACKGROUND

         A. Mr. Shaw's Claims.

         As explained above, Mr. Shaw has filed a fourth amended complaint. This is the result of his previous complaints being screened twice; once by this court and once by the district court. See Docket Nos. 14 and 24. As a result, several parties Mr. Shaw originally named and several of the claims he originally articulated are no longer a part of this lawsuit. The court explains his remaining claims here in a greatly abbreviated form. Mr. Shaw was, at the start of this lawsuit, incarcerated at the South Dakota State Penitentiary. Docket 41 at ¶ 3. In Count One, Mr. Shaw alleges deliberate indifference to his serious medical needs. Beginning in 2004, he complained of knee pain, first in the right knee and eventually in the left knee. Id., ¶¶ 18, 60. He had surgery on his right knee in 2013, but was told that by then the damage was too great and beyond repair. Id. at ¶¶ 52-53. Mr. Shaw had surgery on his left knee on March 9, 2015, but reconstruction of the ACL was impossible due to the delay. Dr. Kalo told Mr. Shaw he would “have to live with the pain.” Id. at ¶ 65. He believes the medical care he has received for his knee problems has been untimely and inadequate, and that the delay and inadequacy has caused unnecessary pain and suffering, amounting to deliberate indifference to his serious medical needs. Id. at ¶¶ 191-199.

         Mr. Shaw also alleges that as a result of untimely and inadequate medical care for his knees, he now suffers from back problems, which he alleges the defendants also treat with deliberate indifference. Id. at ¶ 193. He asks the court to enter an order commanding the defendants to provide him with a CAT scan of his lower back, a neurological consultation, high quality prosthetics and shoes as deemed necessary by outside providers, in addition to compensatory damages for a refund of all co-pays he has paid to prison health services since 2004, his pain and suffering in the amount of at least $350.00 per day from May, 2008 to the present, plus punitive damages in the amount of $250, 000 against each named defendant. Id. at pp. 25-26. Mr. Shaw requests a jury trial.

         In Count Two, Mr. Shaw alleges the defendants interfered with his constitutional right to receive mail. Docket 41, ¶¶ 161-175, 200-206. Specifically, Mr. Shaw alleges the medical records clerk told him he could review his medical records but that some records (utilization management, mental health, and outside provider records) would be withheld. Id., ¶ 162. Mr. Shaw alleges his inability to review these records prevents him from being able to determine why he has not received treatment recommended by his outside medical providers. Id. at ¶ 163. He also alleges he has not been allowed to review his records because he does not have enough money to do so. Id. at ¶ 165. He alleges he received some but not all outside medical records he requested from CORE Orthopedics. Id. at ¶ 171. Because Mr. Shaw has not been allowed access to records from outside medical providers, he believes mail from outside consultants is being confiscated. Id. at ¶¶ 174-175.

         In Count Three, Mr. Shaw alleges a claim for retaliation. Docket 41, ¶¶ 176-190; 207-214. Mr. Shaw alleges after he initiated this lawsuit, the defendants took adverse action against him that would chill a person of ordinary firmness from continuing their protected activity. Id. at ¶ 210. Namely, the defendants searched Mr. Shaw's cell and placed him in the special housing unit (the “SHU”) without cause. Mr. Shaw alleges the defendants seized and failed to return his property, including his legal materials. Id. at ¶ 212.

         B. The Defendants Named in Mr. Shaw's Fourth Amended Complaint

         In his fourth amended complaint, Mr. Shaw named nine defendants, falling into two basic categories: Mr. Shaw's institutional medical providers and persons within the SDSP who hold supervisory positions. They are as follows:

Supervisory defendants:

Medical defendants:

Troy Ponto-Associate Warden

Al Madsen-Unit Manager

Sam Badure--Unit Manager

Derrick Bieber-Unit Manager

Jacob Glasier-Unit Coordinator

Heather Bower, PAC-Dept. of Health Svcs.

Mary Carpenter, MD-Medical Director

E.R. Regier, M.D.-Dept. of Health Svcs.

Audry Shedd, R.N.-Dept. of Health Svcs.

         C. The Defendants' Motion For A Protective Order And the District Court's January 13, 2017, Order

         On December 2, 2016, the defendants moved for a protective order/to stay discovery pending the resolution of their anticipated motion for summary judgment based upon the doctrine of qualified immunity. Docket 44. Mr. Shaw resisted the motion. Docket 47. Qualified immunity protects government officials from liability and from having to defend themselves in a civil suit if the conduct of the officials “does not violate clearly established statutory or constitutional rights.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is immunity from suit, not just a defense to liability at trial. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Therefore, the Supreme Court has “repeatedly stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 536 (1991). Only if the plaintiff's claims survive a dispositive motion on the issue of qualified immunity will the plaintiff “be entitled to ...


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