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Shaw v. Ponto

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

September 29, 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; AND AUDREY SHEDD, HEAD REGISTERED NURSE, INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.

          ORDER ADOPTING THE REPORT AND RECOMMENDATION IN PART AND REJECTING IT IN PART

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Plaintiff, James Elmer Shaw, filed this lawsuit under 42 U.S.C. § 1983. Defendants move for summary judgment. Docket 50. The case was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B) for a report and recommendation on defendants' motion for summary judgment.

         On August 31, 2017, the magistrate judge submitted her report and recommended that defendants' motion for summary judgment be denied in part and granted in part. The magistrate judge recommended that the court deny summary judgment on Shaw's claim for deliberate indifference to serious medical need against defendants Ponto, Madsen, and Carpenter and to deny summary judgment on Shaw's retaliation claim against defendants Ponto, Bieber, and Bowers. Docket 114 at 74. The magistrate judge further recommended that the court grant summary judgment on Shaw's remaining claims. Id.

         Defendants filed objections to the magistrate judge's Report and Recommendation on September 13, 2017. Docket 115. Defendants objected to the magistrate judge's recommendation to deny summary judgment as to the deliberate indifference and retaliation claims. Id. Shaw responded to defendants' objections. Docket 117.

         FACTUAL BACKGROUND

         Defendants do not object to the magistrate judge's statement of facts. A full recitation of the facts can be found in the Report and Recommendation. Docket 114. Here, the court summarizes the facts relevant to Shaw's objections to the report and recommendation:

         Plaintiff, James Elmer Shaw, is in the custody of the South Dakota Department of Corrections and housed at the South Dakota State Penitentiary. Beginning in 2002, Shaw began to receive medical treatment for pain in his right knee. Docket 51-2 at 1-2. Between 2002 and 2008, Shaw continued to visit prison health services for pain in his right knee, and it was eventually discovered that Shaw had a “prominent” osteochondroma[1] growth on his right tibia. Docket 51-1 at 1-5. In 2008, Dr. Eugene Regier, in prison health services, decided to submit a Utilization Management[2] (UM) for an orthopedic consult because it appeared that the osteochondroma was becoming more symptomatic. Id. at 10-11. Dr. Regier made the UM request for an orthopedic consult on April 18, 2008, and it was approved on April 21, 2008. Docket 51-3 at 1.

         Shaw saw Dr. Evan Hermanson on May 5, 2008. Docket 51-2 at 7-8. Prior to his appointment with Dr. Hermanson, Shaw underwent an MRI of his right knee on April 28, 2008. Id. at 3-4. The MRI revealed a complex tear of the lateral meniscus in addition to the osteochondroma, which extended over the tibia and fibula, or possibly two osteochondromas grown together. Id. Dr. Hermanson's note states:

Right lateral knee pain and meniscal tear, but the pain seems to be associated with osteochondroma and overlying bursa. I discussed this with him. Although he has a meniscal tear I do not think taking out the meniscus is going to improve his knee pain at all, since his pain is further distal than the actual joint. If he wanted to pursue having a osteochondroma [sic] excised in hopes that this would improve his pain than [sic] he would need to be referred to an orthopedic tumor surgeon. I discussed trying to coordinate that, but he does not to proceed with what would likely be a large undertaking to remove that osteochondroma.

Id. at 7. Dr. Hermanson recommended Ibuprofen 600 milligrams three times a day for pain. Id. at 8.

         Between 2008 and 2012, Shaw continued to have pain in his right knee and visited prison health services numerous times. During that time, Shaw received a cortisone shot, X-rays, orders for “med ice”, and numerous other medical orders and restrictions. Docket 51-1; Docket 51-2. Finally, on December 12, 2012, Shaw saw Dr. Jeffrey Kalo. Docket 51-2 at 18. Dr. Kalo recommended an MRI of the right knee to assess the osteochondroma and the meniscal tear, and Dr. Kalo indicated that Shaw would need a knee scope after the MRI. Id.

         On December 13, 2012, Dr. Regier submitted a UM for the MRI suggested by Dr. Kalo. Docket 51-3 at 12. Dr. Mary Carpenter approved the UM on December 26, 2013. Id. The MRI was performed on January 2, 2013, and revealed (1) a new anterior cruciate ligament (ACL) tear; (2) a new tear of the medial meniscus posterior horn; (3) increased/new cartilage defects in the medial and lateral femorotibial compartments; (4) unchanged tear of the lateral meniscus body as well as partial extrusion; (5) unchanged osteochandroma; and (6) Baker's cyst with more intrabursal bodies. Docket 51-2 at 20. Shaw then had another appointment with Dr. Kalo on April 10, 2013. Docket 51-2 at 21. Based on the MRI, Dr. Kalo believed the best option was a right knee arthroscopy. Id. On May 9, 2013, Dr. Regier submitted a UM for Shaw to obtain the surgery recommended by Dr. Kalo. Docket 51-3 at 14. Dr. Carpenter approved this UM on May 16, 2013, and Dr. Kalo performed the surgery on June 14, 2013. Docket 51-2 at 22-24. Following the surgery, Shaw was provided a knee brace and directed not to engage in sports. Docket 51-2 at 26.

         On March 13, 2014, Shaw visited health services complaining of pain in his left knee and requested an extension of pain meds. Docket 51-1 at 42. On July 17, 2014, PA Ryan Manson submitted a UM for an MRI of Shaw's left knee. Docket 51-3 at 19. Dr. Carpenter approved this UM on July 19, 2014. Id. The MRI of Shaw's left knee was performed on August 6, 2014 and showed:

(1) trace joint effusion and moderate sized Baker's cyst; (2) complex macerated tearing of most of the lateral meniscus with little intact meniscus remaining; (3) chronic tear of the ACL; (4) question horizontal tear of the posterior horn of the medial meniscus; and (5) cartilage defects, fairly significant of the lateral femoral tibial compartment and mild degenerative changes of the patellofemoral compartment.

Docket 51-1 at 46.

         In response to the MRI, PA Manson submitted a UM for a left knee consult with CORE Orthopedics on August 12, 2014. Docket 51-3 at 21. On August 29, 2014, Dr. Carpenter denied this UM stating “chronic degenerative condition.” Id. On Decmber 15, 2014, PA Manson again submitted a UM for Shaw to see Dr. Kalo. Id. at 20. Dr. Carpenter approved the UM on the same day it was submitted. Id. Shaw saw Dr. Kalo on January 15, 2015. Docket 51-2 at 31. Dr. Kalo ordered X-rays and reviewed the MRI of the left knee. Id. at 31.

         He assessed a grade 3 ACL sprain on the left knee, a lateral tear of the meniscus, and patellofemoral arthrosis. Id. Dr. Kalo discussed treatment options with Shaw and recommended surgery. Id. On January 15, 2015, PA Manson submitted a UM for the surgery and Dr. Carpenter approved it on February 2, 2015. Docket 51-3 at 22. Dr. Kalo performed the surgery on March 9, 2015. Docket 51-2 at 27-30. On the same day, a medical order was entered stating that, following his surgery, Shaw was to ice his left knee as tolerated, keep his left knee elevated above his heart, take Lortab[3] for five days, and begin knee exercises 48 hours post-surgery. Docket 51-1 at 50.

         Shaw asserts that the medical orders were not followed by Madsen and Ponto. Docket 41 ¶¶ 85-101. Specifically, that he was not provided medical ice until three days after the surgery and he was forced to return to the SHU and then to his cell with no accommodation for medical ice or elevation of his knee. Id. Defendants assert Shaw was sent to the SHU after his surgery because he refused his housing assignment when he was not given a handicap cell. Docket 56 ¶ 12; Docket 59 ¶ 7. While Shaw was in the SHU, he requested ice, pain medication, and the ability to elevate his knee but Madsen refused. Docket 52 ¶ 13; Docket 41 ¶¶ 67, 82. Madsen refused these items because he was not aware of Shaw's medical orders even though medical orders follow an inmate when they go to the SHU. Docket 52 ¶ 13; Docket 66 ¶ 15. After Shaw was released from the SHU on March 11, 2015, Shaw alleges he begged Associate Warden Ponto for help, but Ponto did nothing. Docket 41 ¶ 93-109.

         On March 18, 2015, Dr. James Schaeffer from prison health submitted a UM for an urgent follow up for Shaw with Dr. Kalo due to a possible infection at the surgical site on Shaw's left knee. Docket 51-3 at 23. Dr. Carpenter did not approve the UM until March 23, 2015, but Dr. Kalo saw Shaw on March 19. Docket 51-2 at 32. Shaw believed his knee was infected but Dr. Kalo did not find an infection and only found an expected amount of swelling and warmth following surgery. Id. Dr. Kalo recommended that Shaw continue to ice and use a knee brace. Id. Shaw told prison health nursing staff that recovery went “okay for the most part however pain in the left knee continues.” Docket 51-1 at 56-58.

         Defendants explained that when an inmate requests medical records, he does not obtain access to outside medical records during a medical records review. Docket 51-1 at 87-90. Instead, the inmate's medical file is pulled and prepared for review by removing any information the inmate is not allowed to access, such as outside records, mental health records, UM requests, and dates of future appointments. Id. To obtain outside medical records, an inmate must request them directly from the outside provider. Id. at 87.

         In November 2015, Shaw made several requests to review his medical records. Docket 109-28; Docket 51-5. At that time, Shaw had already filed his complaint in this action but it had not been served on any of the named defendants. On November 23, 2015, Shaw was placed in the SHU while his cell was searched for missing medical records. On December 17, 2015, non- defendant Jessica Schreurs authored a document ...


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