United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING THE REPORT AND RECOMMENDATION IN PART
AND REJECTING IT IN PART
E. SCHREIER UNITED STATES DISTRICT JUDGE
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.
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.
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.
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:
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 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 (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.
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.
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.
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
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.
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.
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 for five days, and begin knee exercises 48
hours post-surgery. Docket 51-1 at 50.
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.
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.
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.
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