United States District Court, D. South Dakota, Southern Division
ORDER MOTION TO COMPLEL DISCOVERY [DOCKET
VERONICA L. DUFFY United States Magistrate Judge.
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.
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'
Mr. Shaw's Claims.
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.
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.
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.
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.
The Defendants Named in Mr. Shaw's Fourth Amended
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:
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.
The Defendants' Motion For A Protective Order And
the District Court's January 13, 2017, Order
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 ...