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Smith v. Brown

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

March 22, 2018

BRUCE EDGAR SMITH, Plaintiff,
v.
SGT. KURTIS BROWN, correctional officer, in his individual and official capacity; JESS BOYSEN, correctional officer, in his individual and official capacity; JUSTIN KUKU, correctional officer; ANGELA STEINEKE, coordinator of West Hall; KEITH DITMENSON, unit manager, West Hall; HEATHER BOWERS, head nurse of health service; MARY CARPENTER, head doctor for health care; LONNA VINK, ; nurse, health services; and DAVID STEPHAN, Division of Criminal Investigation; Defendants.

          ORDER

          Lawrence L. Piersol United States District Judge

         Plaintiff, Bruce Edgar Smith, is an inmate at the South Dakota State Penitentiary (SDSP) in Sioux Falls. He filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1. Defendants now move for summary judgment before affording Smith the opportunity to conduct discovery. Docket 152. In order to provide Smith the opportunity to conduct discovery, the court holds defendants' motion for summary judgment in abeyance. Nevertheless, the parties are apprised as to the court's thinking on the motion as the record currently stands.

         PROCEDURAL BACKGROUND

         On January 25, 2016, Smith filed his initial complaint pursuant to 42 U.S.C. § 1983. Docket 1. The court stayed Smith's case because he had filed the same case in state court. Docket 14. The court ordered Smith to file notice when the state court case ended. Id. On January 5, 2017, Smith provided documentation showing that the state court proceeding was dismissed. Docket 48-1. But while Smith's case was stayed, he filed numerous motions to amend his complaint and it was unclear what now constituted his complaint. The court then ordered Smith to either notify the court that he wished his proposed amended complaint at Docket 30-1 to constitute his complaint or file a new amended complaint. Docket 53. On February 3, 2017, Smith filed a letter stating that he wished Docket 30-1 to constitute his amended complaint. Docket 61 at 3. The court screened Smith's proposed amended complaint under 28 U.S.C. § 1915A and dismissed the complaint in part and directed service. Docket 66. The defendants timely filed their answer on May 3, 2017. Docket 91.

         After defendants answered Smith's amended complaint, the court issued a scheduling order. Docket 92. On May 9, 2017, defendants moved for a protective order to stay discovery (Docket 96) and .Smith opposed (Docket 102). Docket 96. Defendants argued that they were entitled to qualified immunity and that they should not be subject to discovery until qualified immunity was determined. Docket 97. On June 21, 2017, the court granted defendants' motion and stayed discovery. Docket 113. This stay of discovery is still in place. Additionally, the court ordered that defendants file their motion for summary judgment based on qualified immunity by July 20, 2017 (Docket 113) and the court later denied defendants' request for an extension (Docket 120). On August 8, 2017, Judge Karen Schreier recused herself (Docket 121) and the case was reassigned on August 16, 2017. (Docket 128).

         On October 16, 2017, defendants moved for summary judgment and, notably, not on the basis of qualified immunity. Docket 152. After counsel for defendants missed the deadline to file their motion for summary judgment based on qualified immunity, they should have moved to lift the stay of discovery, which they had requested, instead of moving for summary judgment on the merits with no discovery. Failing to do so is unfair to both the plaintiff and the Court. They argue that there are no material facts in dispute and defendants are entitled to judgment as a matter of law. Docket 152. Before and after defendants filed their motion for summary judgment, Smith filed numerous motions and supplements raising a variety of issues. Smith moves for entry of default judgment (Dockets 118, 145), leave to file depositions (Docket 123), to amend his complaint (Docket 165), to rescreen his complaint (Dockets 130, 131), to deal with a non-filing of a default judgment and to deal with the discovery issues (Docket 139), to show cause for injunction and a restraining order (Docket 140), to schedule jury trial (Docket 141), and to issue subpoenas (Docket 142). Defendants responded to Smith's motion for default judgment on September 25, 2017. Docket 147. Smith also moves to appoint counsel (Docket 148), for a writ of mandamus with extraordinary remedies (Docket 151), to correct caption (Docket 166), and to supplement all filings in this case (Docket 168). On November 16, 2017, Smith moved for summary judgment (Docket 170) and defendants responded (Docket 172). Finally, Smith moves to bring the case to trial (Dockets 141, 174, 178, 181), to show cause to make changes (Docket 175), and to object to order (Docket 176). For the reasons below, the court denies all of Smith's motions.

         FACTUAL BACKGROUND

         Although the court will not rule on the defendants' motion for summary judgment at this juncture, the court recites the facts relevant to the remaining claims in the light most favorable to Smith because defendants move for summary judgment. Where facts relevant to the remaining claims are disputed, both parties' averments are included.

         Boysem, Brown, Kuku

         Smith's first surviving claim includes Smith's allegations that Kurtis Brown, Jess Boysen, and Justin Kuku used excessive force when attempting to subdue Smith on August 18, 2013. Docket 66 at 21-22. According to Smith, "even though [Brown] spaied [sic] me with the entire can [of pepper spray], I just stood their [sic] crying, just looking at him, not moving hardly at all." Docket 1 at 25. Smith alleged that this "just made Sgt. Brown madder then" and "[Brown] order[ed] the other two officers to tackal [sic] me and take me down then." Id. It is alleged that the officers "started running at [Smith] hard" and hit Smith "full force driving [him] down the tier about 25 feet." Id.

         The incident began when Boysen and Brown "responded to an Emergency Call Light at cell 42 in West Hall" of the SDSP. Dockets 163-1, 163-66 at 5-6. When Boysen "arrived cell front, " he observed Smith "bleeding profusely from the nose and restraining the wrist of Inmate Pinkal." Id. Smith informed Boysen that his cellmate, Pinkal, had "hit him in the face." Id. Boysen then "cuffed up Inmate Pinkel and opened the cell door to remove him" so that he could be "escorted to the East holding cell" pending an investigation into the incident.

         When Brown arrived at the scene, he "found Inmate Smith standing outside the cell with blood running down his face." Dockets 153-116 ¶ 4, 153-3. Boysen advised Brown that Smith "had been in a fight with his cellmate." Docket 153-116 ¶ 4. Whenever there is an altercation between inmates, the SDSP procedure dictates that all inmates involved are escorted to and placed in the special housing unit (SHU) pending an investigation into the incident. Dockets 153-116 ¶ 7, 153-115 ¶ 5. Thus, Brown informed Smith that he "needed to cuff up because he had been in a fight and had to go to the SHU." Dockets 153-116 ¶ 7, 153-3. Smith claims to have responded by "calmly explaining to Brown that he had not been in a fight with his cellmate but had been attacked by him." Docket 66. Nevertheless, Smith did not to comply with Brown's directive to "cuff up" and Brown "called other officers to the cell." Dockets 153-3, 153-116 ¶ 9.

         Kuku responded to the scene after Brown had already given Smith multiple directives to "cuff up." Dockets 153-3, 153-115 ¶ 6. Smith testified in his criminal trial, State v. Bruce Edgar Smith, Minnehaha County Crim. File No. 13-7319, that Kuku also advised him that he was "still going to have to go down to the holding cell" so that they could "talk this out." Docket 153-76 at 6. Smith claims that "Officer Kuku and [Smith] turned and started walking down the tier when Sgt. Kurtis Brown and Officer Jess Boysen was [sic] running down the tier tword [sic] [Kuku and Smith]." Dockets 153-1, 153-3. Smith avers he "told Sgt. Brown that Officer Kuku and I was heading down to the holding cell then [Kuku] was going to take me to Health Services for medical treatment." Docket 1 at 24. Then Smith contends he was sprayed with an entire can of mace and tackled to the ground. Docket 170 at 4.

         Defendants aver that Smith was not "heading down to Health Services for medical treatment[.]" Dockets 153-1, 153-3, 153-116 ¶¶ 7-13, 153-115 ¶¶ 7-9. And defendants claim there is no support in the record for Smith's assertions that he was "calmly explaining to Brown that he had not been in a fight" and that, even after being sprayed with mace, he "just stood their [sic] crying, just looking at him [Brown], not moving hardly at all." Smith acknowledges that, according to Brown's report, he "started to square with me [Brown]" and "started to posture as if he was ready to fight." Dockets 1 at 29, 31, 153-3, 153-6, 153-116 ¶ 9.

         Furthermore, Brown's account of events is consistent with the testimony Smith gave during his criminal trial. According Smith's previous testimony, he "didn't think it was fair that he had to go to IP or Investigative Purposes." Docket 153-76 at 11. Smith testified that he had therefore made up his mind that he was "going to do anything [he] had to do to stop from having to go out to IP." Id. at 12. Smith further stated that he had been "told to cuff up several times" but he "refused every single time." Id. at 10-11.

         Brown's account of events is consistent with Smith's statement to authorities during an interview on August 19, 2013. He told authorities that he was "mad at the time and wasn't going to IP" and that "if he was going down to IP, he was going to go down hard." Docket 1-5 at 146. Smith told authorities that "what happened next was his fault." Docket 1-5 at 146. He stated that this whole incident could'have been avoided if he had simply "complied with these officers or with Sgt. Brown's directives." Docket 153-76 at 14.

         According to defendants, Smith then "started to square off' with Brown. Dockets 153-116 ¶ 9, 153-3. Brown, Boysen, and Kuku tried reasoning with Smith to cuff up. Dockets 153-116 ¶ 10, 153-115 ¶ 7, 153-6. Defendants allege that Smith then "became upset and drew blood into his mouth" which he then spit on Sgt. Brown. Docket 153-116 ¶ 11, 153-3, 153-6. Smith fiercely denies ever spitting on Sgt. Brown. Docket 170 at 6. In fact, Smith was found not guilty, in the criminal trial, of having violated SDCL 22-18-20. Rather, defendants rely on Smith's guilty plea before the Unit Disciplinary Committee (UDC) at the SDSP, of having violated "H-5." Dockets 153-117 ¶ 8, 153-7. That prohibited act precludes an inmate from "throwing or spitting any substance at or upon any non-inmates or intentionally smearing any substance to come into contact with any non-inmate." Docket 153-117 ¶ 4.

         After the alleged spitting, Brown "gave him [Smith] one last directive to cuff up." Dockets 153-116 ¶ 12, 153-3, 153-6. According to Boysen and Kuku, Smith "refused to cuff up even after the final warning to be cuffed up or sprayed." Dockets 153-115 ¶ 8, 153-4, 153-5, 153-76 at 10.

         Defendants dispute Smith's claim that Boysen "start running at [Smith] hard" and "hit [Smith] full force driving [Smith] down the tier about 25 feet... driving [Smith] up over [Smith's] head." Docket 1 at 25. Boysen avers that he was positioned only one cell down from where Smith was standing. Dockets 153-116 ¶ 14, 153-115 ¶ 10. And the officers' accounts are consistent with statements made by Smith in his Complaint which he concedes that the other officers were standing only "about 5 feet away." Docket 1 at 24. Defendants aver that Smith was restrained in the same spot that he was standing and was not "driven 25-32 feet down the tier. That's 5 cells." Dockets 153-116 ¶ 15, 153-115 ¶ 11. In order for Smith to have been driven over 30 feet down the tier, he would have had to have gone through a door/gate that separates Tier 2 South in half. Dockets 153-116 ¶ 16, 153-115 ¶ 12. It would have been difficult, if not impossible, for Smith to have been driven "over his head" through such a narrow opening.

         Following the use of force, Smith claims that he was never decontaminated, suffered a broken nose, and injured his ankle. In an uncontested Informational Report dated August 18, 2013, Nurse Lonna Vink indicated that "nursing staff attempted to perform vitals on Inmate Smith using BP machine but were unsuccessful due to inmate's recent decontamination." Dockets 153-115 ¶ 14, 153-11.

         Smith alleges that his nose was "broken in two places" as a result of the force used by the officers. Defendants aver that there is no support in the record for any such assertion. Smith, shortly after the incident in question, was taken to Health Services to be examined. At that time, he told medical staff that he "had been punched in the nose by another individual." Dockets 155 ¶ 7, 153-11. When later examined at Midwest Ear, Nose & Throat (ENT) on September 5, 2013, Smith informed medical staff that he "injured his nose on 8/18/13 during a fist fight with an inmate." Dockets 155 ¶ 56, 153-9. Smith never mentioned officers breaking his nose in their attempt to restrain him. And during the criminal trial of State v. Smith, Minnehaha County Crim. File No. 13-7319, when asked "In fact, I think you testified that it was Mr. Pinkal that broke your nose, " Inmate Smith testified "Yes." Docket 153-66 at 8. Smith testified, "he [cellmate] broke my nose in two places." Docket 153-76 at 6.

         As to his ankle, Smith claims he told Health Services "that my ankle hurt badly and I couldn't hardly walk." Docket 1 at 8. Yet, records from Health Service show no mention of Smith struggling to walk immediately following the incident. Dockets 153-11, 161 ¶8. Smith first reported an injury to his ankle on December 4, 2013, during a chronic care visit. There, Smith complained that "since this incident he has been having increased left ankle pain." Docket 154 ¶¶ 9-12. Defendants aver that Smith is feigning symptoms, because Smith displayed no limp or distress when he came to the clinic. Dockets 153-25, 154 ¶ 28.

         Vink

         Smith's Eighth Amendment claim against Lonna Vink, in connection with the medical care that was afforded Smith following the above-referenced incident, also survived screening. Docket 66 at 16-17. Smith alleges that Vink was "the nurse in charge that night I was brought to Health Services after I had been mased [sic] and assaulted by the officers" and she "said that there was nothing [sic] wroung [sic] with me, so she sent me to the SHU, without any treatment for my injuries." Docket 59 at 2.

         Vink alleges that she was not the person who "sent [Smith] to the SHU without any » treatment." Dockets 161 ¶ 6, 153-95. Vink only "walked into the room while the assessment was being conducted and assisted therewith due to the agitated state that Smith appeared to be in." Docket 161 ¶ 7. Vink further alleges that, at the time in question, Smith's injuries did not appear to be serious. As reflected in the Informational Report dated August 18, 2013, Smith was "experiencing a bloody nose" and "a small cut was noted on the bridge of his nose." Dockets 161 ¶ 8, 153-11. This report is consistent with that in the "Segregation Admission Check List." Dockets 161 ¶9, 153-95. As indicated in the "Check List, " Smith had a "1.5 cm laceration on the bridge of his nose" and a "small amount of bleeding" was noted. The "Check List" noted that Smith's nose was said to be "somewhat deviated to the right." Dockets 161 ¶ 10, 153-95. Smith, in his Complaint, readily acknowledges that Health Services "sent me to the SHU without knowing that my nose was broken." Docket 1 at 18.

         Defendants aver that there was no reason for Health Services to believe that Smith had sustained an injury ankle. There was no mention whatsoever by Smith that he "couldn't hardly walk." Docket 161 ¶ 11. The record reflects that the first time that Smith complained of any injury to his ankle was not until December 4, 2013. Dockets 155 ¶ 9, 153-12. And the aforementioned "Check List" further reflects that there were no "contra indications to segregation" nor were any "accommodations required." Dockets 161 ¶ 12, 153-95. Smith's condition was said to be "stable" when he was taken to the SHU. Dockets 161 ¶ 12, 153-11.

         Ditmenson

         Smith's Eighth Amendment claim against Keith Ditmenson, in connection with the medical care that was afforded Smith following the above-referenced incident, also survived screening. Docket 66 at 16-17. Smith alleges that Ditmenson violated his rights when he "tried to go to sick call but was turned down, and every day after that was turned down." Docket 1 at 8.

         Defendants aver that Ditmenson never ignored Smith's sick calls for the five days after the incident. Docket 159 ¶ 6. If any inmate, while housed at the SHU at the SDSP, believes that he is in need of medical attention, he need only submit a Kite to unit staff requesting to be seen by Health Services. Docket' 159 ¶ 7. That Kite is then simply forwarded to Health Services and arrangements are thereafter made for the inmate to be examined by medical staff.

         Defendants aver that if Smith had submitted a Kite or Sick Call Request asking to be seen by Health Services, arrangements would have been made, pursuant to SDDOC Policy 1.3.A.7, Transport and Escort of Inmates, for him to have been seen by Health Services. Docket 159 ¶ 8. Pursuant to said policy, staff may initiate the request to transport the inmate off the unit for "medical reasons." Additionally, Health Service nurses visit the SHU at least four times per day in order to conduct med pass and distribute prescribed medications. Docket 158 ¶ 12. Smith, therefore, would have had ample opportunity to speak with a nurse and submit a Request for Sick Call. But Smith alleges that he did ask nurses but they did not help him. Docket 170 at 7. Finally, Smith stated that he "got up to see the medication nurse" on the night of August 27, 2013, and she "told me that she would see to it that I would be brought up for sick call today, and she did so." Docket 170 at 8.

         Defendants' review of Smith's medical records shows that Smith did not submit a Sick Call Request until August 23, 2013. Docket 159 ¶ 13. The Sick Call was reviewed by Dr. Regier on August 27, 2013 and he ordered nasal bone and facial bone x-rays. Docket 159 ¶ 14. Those x-rays were completed on August 28, 2013. Smith was seen by Dr. Regier on August 29, 2013, but Health Services was unable to pull those [x-rays] up on the computer due to an apparent technical problem. Dockets 159 ¶ 9, 153-10.

         Dr. Carpenter - Nasal Injury

         The court also found that the Eighth Amendment claim against Dr. Mary Carpenter, in connection with the medical care that was afforded Smith following the above-referenced incident, also survived screening. Docket 66 at 16-17. A review of Inmate Smith's medical records reveals that Smith, on August 28, 2013, underwent a series of x-rays on his facial bones. Those tests were "negative for orbital fractures" and the orbits were said to "appear normal." Dockets 154 ¶ 54, 153-39. Smith alleges that Dr. Regier said that the technician incorrectly read these results. Docket 170 at 8. Nevertheless, there was a "suspicion of a minimally displaced fracture of the nasal bridge." An Authorization Request was thereafter submitted on August 29, 2013 for an "ENT consult ASAP." That request was approved on the same date. Dockets 154 ¶¶ 55-56, 153-40, 153- Smith was seen at Midwest ENT in Sioux Falls, South Dakota on September 5, 2013. Docket 1 at 11. Smith's nasal bridge "appears deviated to the right" and his septum was said to be "significantly deviated to his right side." Dockets 154 ¶¶ 55-56, 153-9. According to the report, "No significant tenderness noted." But Smith alleges that "the first time that I was their [sic] [ENT], they was going to rebrake [sic] my nose and reset it. . . but it was turned down by the Health Services medical, they wanted to think about it and resend me back another day." Dockets 1 at 11, 170 at 8. Defendants contend that a review of the report received from Midwest ENT, dated September 5, 2013, contains no mention whatsoever of "going to re-break [Smith's] nose and reset it." Dockets 154¶73, 153-9.

         Smith alleges that he "had to have surgery because of this delay." Defendants aver that there is absolutely no support whatsoever in the record for Smith's assertion that Dr. Todd, Midwest ENT, "feels it [surgery] is a medical emergency." Dockets 154 ¶ 72, 153-9, 153-41. The Midwest ENT reports stated that medical personnel "does not feel it is a medical emergency." Dockets 154 ¶ 72, 153-9. "Documentation was sent back to the penitentiary stating that this is not a medical emergency." Dockets 154 ¶ 72, 153-9. It was the opinion of Dr. Todd, after examining Smith, that this was a "non-emergent condition." Dockets 154 ¶ 72, 153-41. Subsequent thereto, an Authorization Request was submitted by Dr. Regier on September 25, 2013, for Smith to undergo a "nasal bone fracture/reduction." That request, however, was denied on September 25, 2013. As indicated therein, "ENT physician states emergency treatment not needed." Dockets 154 ¶ 74, 153-42.

         Smith was again later seen at Midwest ENT on December 20, 2013. He was again diagnosed with a deviated septum. Dockets 155 ¶ 76, 153-44. Staff at Midwest ENT indicated that Smith was "most likely a candidate for surgical intervention" and indicated in their report that "our office will contact the prison regarding the matter for following up." A "Physician Order" was issued by Midwest ENT on January 7, 2014, informing Health Services at the SDSP that "we need an appointment made for Bruce [Plaintiff] to see Marc Ellwein, PA-C, at clinic when Dr. Todd is here to discuss surgical options." Dockets 154 ¶ 77, 153-45. An Authorization Request was thus submitted on January 10, 2014, for a consult at Midwest ENT. Dockets 154 ¶ 77, 153-46. That request was approved on that same date.

         When seen at Midwest ENT on January 27, 2014, Smith "states there has been no change in his symptoms." Dockets 154 ¶ 78, 153-47. A physical examination was conducted and showed "the fracture is unchanged." Id. It was recommended "proceeding with a septoplasty, turbinate reduction, and a concha bullosa excision as well as a ORIS nasal bone fx reduction." Dockets 154 ¶ 79, 153-47. An Authorization Request was thereafter submitted by Dr. Regier on January 31, 2014 for "nasal surgery." That request was later denied, because Smith's nasal issues were said to be a "chronic condition-not emergent." Dockets 154 ¶ 80-81, 153-48. Dr. Carpenter believed that there was simply no current need for surgical intervention. Docket 154 ¶ 80. Nothing in the report from Midwest ENT suggested that Smith's nasal condition had deteriorated so as to require surgical intervention. Dockets 154 ¶ 80, 153-47.

         Defendants aver that there is nothing in Smith's medical records which would suggest that his condition was exacerbated by any delay in undergoing nasal surgery. Docket 154 ¶ 81. Smith has, since February 2014, been seen by Health Services at the SDSP on numerous occasions. Smith has not raised any complaints to medical staff regarding his nose. Dockets 154 ¶ 82, 153-21, 153-22, 153-23, 153-24, 153-51, 153-52, 153-53, 153-54, 153-55, 153-56, 153-57, 153-58, 153-59, 153-60, 153-61, 153-62, 153-63. Smith has submitted various Kite Request Slips asking to be seen by Health Services, but none of those "kites" mention anything about him experiencing any difficulty breathing through his nose. Docket 154 ¶ 83.

         While Smith was seen by Health Services on February 7, 2015, complaining of shortness of breath, the record reflects that his "02 saturation level was 93-98% on room air." Dockets 154 ¶ 84, 153-24. Those saturation levels were said to be more than adequate since levels above 90% are considered satisfactory. Docket 154 ¶ 85. Defendants aver that Smith's shortness of breath complaint is unlikely due to his deviated septum. While a person may feel congested as a result of a deviated septum, they do not typically experience shortness of breath as a result thereof. Docket 154 ¶ 85..As a result, Health Services "encouraged deep breathing exercises" for Smith. Dockets 154 ¶ 86, 153-24. The "deep breathing exercises" recommended by medical staff are indicative of an anxiety/panic attack consistent with Inmate Smith's psychiatric history. Docket 154 ¶ 86.

         When seen by Health Services on September 13, 2016, Smith complained that he was "unable to breathe from right side of nose due to fracture and sinus congestion." Dockets 154 ¶ 87, 153-84. When examined, Smith was again diagnosed with "sinus congestion." Smith, therefore, "reports that he would like a medication for his ongoing sinus issues." Dockets 154 ¶ 87, 153-94.

         When seen for a "routine physical exam" on January 10, 2017, Smith was asked by Health Services "if he had any further medical concerns." Dockets 154 ¶ 88, 153-92. In a response thereto, Smith instructed medical staff "don't ask me that question." A review of the medical entry on the above date reflects that Smith "offers no further medical concerns at this time." Dockets 154 ¶88, 153-92.

         When seen by Health Services on April 7, 2017, Smith was "argumentative and continually brings up lawsuit." Dockets 154 ¶ 89, 153-93. He advised Health Services that "I don't want to do this. We can do this in court."

         Dr. Carpenter - Ankle Injury

         The court also found that the Eighth Amendment claim against Dr. Mary Carpenter, in connection with the medical care that was afforded Smith following the above-referenced incident, also survived screening. Docket 66 at 16-17. Smith asserts that, when seen by Health Services on August 26, 2013, he told medical staff that "my left ankle hurt badly and I couldn't hardly walk." Docket 1 at 8. But the Informational Report prepared by Vink on August 18, 2013, there was no mention therein of Smith being unable to "hardly walk." Dockets 161 ¶ll, 153-11. And the "Segregation Admission Check List" prepared by Health Services on August 18, 2013, does not mention that Smith "couldn't hardly walk." Dockets 161 ¶ 11, 153-95.

         Although unsupported by defendants' records, Smith claims that he told the "medication nurse" on the "night of the 22nd day of August, 2013" that he could "hardly walk." Docket 1 at 9. Records do reflect that, on August 23, 2013, Smith put in a Nurse Sick Call to "discuss medical orders" but it "was not specific to an injury." Docket 158 ¶ 6. Smith alleges that "Nurse Lesa, " on the afternoon of August 22, 2013, "looked at [Smith's] left ankle" and "order x-rays the next day to be taken of [Smith's] ankle." Docket 158 ¶ 7. Defendants aver Smith's medical records do not support this assertion.

         Smith was seen for a "Nurse Sick Call" on August 26, 2013, but it was in connection with complaints of an injury to his nose. Docket 158 ¶ 8. On August 27, 2013, Dr. Regier reviewed the Nurse Sick Call and ordered nasal bone and facial bone x-rays. Docket 158 ¶ 8. These x-rays were completed on August 28, 2013. Dockets 158 ¶ 9, 153-20. When again seen by Health Services at the SDSP on August 29, 2013, Smith was said to be "ambulatory." Dockets 154 ¶ 7, 153-10. Smith did not mention having problems or difficulty with his left ankle.

         Defendants allege that the first time Smith complained of any problem with regards to his left ankle was on or about December 4, 2013, when seen by Health Services for a "Chronic Care Visit." At that time, he "reports since this incident [8/18/13] he has been having increased ankle pain." Dockets 154 ¶ 9, 153-12. Smith complained that he "has crepitus in his ankle" and indicated that he "feels like it is broken." Dockets 154 ¶ 10, 153-12. Smith, however, "denies specific ankle instability" and was said by medical staff to be "more commenting on the fact that he has crepitus." A physical examination revealed that "No noted swelling or ecchymosis [bruising] is seen around the left ankle" and "No point tenderness is noted." Dockets 154 ¶ 11, 153-12. The medical records reflect that "No joint laxity in the left ankle is noted." Health Services elected to "additionally order a left ankle x-ray as well as a left ankle sleeve x 1 year." Dockets 154 ¶ 12, 153-12. Arrangements were made whereby Smith underwent said x-rays on or about December 5, 2013.

         The results of the x-rays taken of Smith's ankle revealed that there was a "nondisplaced, sagitally-oriented fracture involving the base of the medial malleolus." Dockets 154 ¶ 13, 153-13. There was, however, "No evidence for a distal fibular fracture" and "No posterior malleolus fracture." According to the report, "No other fractures are identified." Dockets 154 ¶ 13, 153-13. Subsequent thereto, arrangements were made whereby Inmate Smith was examined at Core Orthopedics in Sioux Falls, South Dakota, on or about December 18, 2013. When seen on that date, Smith reported "No specific instability episodes." Dockets 154 ¶ 14, 153-14.

         Upon physically examining Smith's ankle, Dr. David Watts noted "No obvious instability on inversion and anterior drawer stressing." Dockets 154 ¶ 15, 153-14. Smith was said to have "Full ankle hindfoot range of motion." Smith was diagnosed with a "left ankle sprain." Dockets 154 ¶ 16, 153-15. It was nonetheless recommended that Smith undergo "MRI of left ankle to evaluate for OCD/fracture." On January 21, 2014, Smith underwent an MRI which revealed "No acute fractures at the site of focal tenderness." Dockets 154 ¶ 17, 153-16. He was again diagnosed with what was said to be a "Type 1 ligamentous sprain."

         Smith was examined again at Core Orthopedics on January 29, 2014. Unlike his previous examinations, Smith was said to have "obvious instability with inversion stressing compared to the opposite side." Dockets 154 ¶ 18, 153-17. According to the report, the MRI demonstrates an area along the lateral cartilage with a chondral defect. Id. Although Smith was diagnosed with "Cartilage loss at the lateral aspect of the talar dome, " the record reflects that said "cartilage loss at the lateral aspect of the talar dome likely related to degenerative arthritis." Dockets 154 ¶ 20, 153-16. At that time, it was recommended that Smith undergo a scope of his left ankle and that he be "scheduled for a modified Brostrom." Dockets 154 ¶21, 153-17, 153-18. An Authorization Request was thus submitted on February 4, 2014 for Smith to undergo left ankle surgery. Dockets 154¶21, 153-19.

         In response thereto, Dr. Mary Carpenter contacted Core Orthopedics and "engaged in a discussion with Orthopod who stated that not fixing the ankle instability immediately would not change the long term outcome." Docket 154 ¶ 22. The Authorization Request for left ankle surgery was thus denied since it was a "chronic condition-nonemergent." Dockets 154 ¶ 23, 153-19. In lieu of surgery, the decision was made to pursue, for the time being, a more conservative course of treatment. Smith was provided with a "lace up ankle brace." Dockets 154 ¶ 24, 153-21. Smith was informed that he "must wear brace as a conservative measure at this time" and that Health Services "will monitor patient." Dockets 154 ¶ 25, 153-21.

         Smith when seen by Health Services on June 4, 2014, for another Chronic Care Visit, was "currently in a lace up ankle brace which patient does report helps with his ankle stability." Dockets 154 ¶ 26, 153-25. Smith was "additionally requesting to use a cane to better help his balance due to his ankle instability." Health Services thus elected to "order a cane use x 1 year." Dockets 154¶27, 153-25.

         Defendants allege that Smith may have been feigning his symptoms with regard to the alleged instability in his left ankle. Smith denies ever feigning symptoms. Docket 170 at 9. When leaving Health Services on June 4, 2014, Smith was "noted to ambulate out of the room with a left sided limp." Dockets 154 ¶ 28, 153-25. But the record reflects that "of note is that nursing evaluated patient's gait when he came to clinic and was not noted to have a limp or be in any distress." Dockets 154 ¶ 28, 153-25. Smith's medical records also contain a notation, dated June 4, 2014, that when "patient arrived at clinic for CCC appointment, " nursing staff "observed gait. Patient gait steady and no limp noted." Dockets 155 ¶ 29, 153-21. According to nursing staff, "patient does not appear to be in any pain or distress." The record reflects that "patient continues to use stairs to go to chapel and Health Services without difficulty." Dockets 154 ¶ 37, 153-21. It was "verified with the Health Services officer" that Smith also "accesses Health Services via stairs and has not requested an escort to/from Health Services on the elevator." Smith, when seen by Health Services on August 27, 2014, was again said to "ambulate in the room with a normal gait and without difficulty." Dockets 154 ¶ 30, 153-26. Defendants allege that Smith, despite having asked for and received a "no stair medical order" from Health Services, was observed on September 11, 2014 "delivering commissary on Tier 4." Dockets 154 ¶ 39, 153-23.

         When seen, however, by Health Services on December 3, 2014, Smith complained that he was "attempting to continue with daily activities but is having increasing difficulty regarding his left ankle." Dockets 154 ¶ 40, Docket 153-29. According to Smith, he "continues to have some instability without extra support items such as a cane" and allegedly "recently started using a wheelchair for long distances." Id. In response to Smith's complaints, Health Services elected to "resubmit a request for patient's left ankle surgery." Dockets 154 ¶ 41, 153-29. An Authorization Request was thus submitted on December 4, 2014 for "left ankle surgery." Dockets 154 ¶ 41, 153-30. That request was approved by the Medical Director on December 5, 2014. Dockets 154 ¶ 42, 153-30. Smith was therefore seen at Core Orthopedics on December 23, 2014 in regards to "other treatment options." Dockets 154 ¶ 42, 153-31.

         Upon evaluation, Smith was said to have "obvious instability with stressing of the ankle comparatively to, his opposite side." The recommendation was to plan on doing an ankle scope and possible microfracture of an OCD lesion, as well as a Brostom's repair." Dockets 154 ¶ 43, 153-27, 153-28. Smith thereafter underwent a "pre op physical" on or about January 26, 2015. Dockets 154 ¶ 44, 153-34, 153-55. The surgical procedure itself was performed on February 4, 2015. Dockets 154 ¶ 45, 153-35. Smith's ankle, following said procedure, was said to have "full range of motion with no further instability noted."

         Smith was specifically instructed to be "nonweight bearing for a period of 6 weeks." Dockets 154 ¶ 46, 153-35. When seen for a "follow up" at Core Orthopedics on February 18, 2015, Smith was "placed in a short leg cast" and was again instructed to "remain strict non-weight bearing." Dockets 154 ¶ 46, 153-36. Smith, however, elected not to follow those directives and admitted to Health Services on'February 14, 2015 that he had been "putting weight on left lower extremity." Dockets 154 ¶ 47, 153-24. He was again "educated that he is non-weight bearing to his left lower extremity."

         When seen at Core Orthopedics on May 1, 2015, a physical examination of Smith's left ankle revealed "No obvious instability." Dockets 154 ¶ 49, 153-38. The various x-rays taken of the ankle were said to be "normal." When later seen at CORE Orthopedics on July 1, 2015, Smith, for the very first time, complained that "he's been falling quite a bit because his ankle has been giving out and he feels that he needs ankle support." Dockets 154 ¶ 51, 153-79. In response thereto, Dr. Watts, CORE Orthopedics, indicated that "we will write him an order for a workers boot" and "try the boots for a few months and follow him back in two months to see how he is doing."

         Smith, when seen at CORE Orthopedics on September 1, 2015, complained that "the ankle still does give away when he is not wearing a cam boot." Dockets 154 ¶ 52, 153-80, 153-81. It was therefore recommended that Smith undergo a "procedure to possibly try to stabilize this [ankle] again." On October 19, 2015, Smith was seen by Health Services at the SDSP for a "preoperative physical prior to left ankle revision surgery." Dockets 154 ¶ 53, 153-84. As indicated therein, "patient has stopped all of his medications as of 9/15/2015 due to one of the nursing staff making him mad." The incident on September 15, 2015, as will be shown elsewhere herein, involved the issuance of the work boots that had been recommended for Smith.

         The record reflects that Smith, on October 27, 2015, underwent a "Watson Jones procedure left ankle transfer of the peroneus brevis tendon to the fibula and lateral talus." Dockets 154 ¶ 55, 153-85, 153-86. As reflected in the hospital report, the "modified Brostrom's [procedure]" that Smith previously underwent in February 2015 was said to be unsuccessful due to the tissue having been "significantly atrophied at that point." Dockets 154 ¶ 55, 153-85. There is nothing, however, to indicate, from a medical standpoint, that the "modified Brostom's" procedure was unsuccessful as a result of any delay in performing surgery on Smith's left ankle. Docket 154 ¶ 56. As indicated elsewhere herein, although Smith was said to have "very little tissue for repair at the time of his ATFL" the ligament/cartilage loss diagnosed with regards to his left ankle was "likely related to degenerative arthritis." Dockets 154 ¶ 56, 153-16.

         Smith was, on December 8, 2015, seen at CORE Orthopedics for a post-operative examination. His ankle, upon examination, was said to be "stable to inversion testing." Dockets 154 ¶ 57, 153-86. Smith was instructed that he could "begin progressive weight bearing as tolerated through a cam boot for the next two weeks."

         When later seen at CORE Orthopedics on January 19, 2016, Smith had "progressed into full weight bearing in a regular shoe and presents today in his regular shoe." Dockets 154 ¶ 58, 153-78. Smith "denies any instability" and other than "continued numbness lateral dorsal foot, " reported that he is "doing well." The evaluation of Smith's ankle again revealed "no instability with inversion stressing." Dockets 154 ¶ 59, 153-88. The report received from CORE Orthopedics revealed that there were "no restrictions on this left ankle" and Smith was thus said to be "able to do stairs at this point."

         Smith was seen by Health Services at the SDSP on March 7, 2016, with continued complaints of "continued left ankle pain." Dockets 154 ¶ 60, 153-89. Smith, however, "reports he is okay with results from surgeries." According to Smith, "conversations with him and Dr. Watts, this is what was expected." Smith, in a letter to Dr. Watts, indicated that he had "dumped the wheelchair, I started walking again." Dockets 154 ¶ 61, 153-90. According to Smith, he also "started working, the stairs, and not using the elevator." A review of said letter reveals that Smith also stated that "My tendon feels really good." Dockets 154 ¶ 62, 153-90. According to the letter, there was "no sideways giving." Smith closed the letter to Dr. Watts by stating "Nice, really nice."

         Smith, when later seen by Health Services on July 7, 2016, maintained that "Dr. Watts recommended physical therapy to him in person, " but that "patient stated that he (Smith) did not think it was worth the time." Dockets 154 ¶ 63, 153-91. Nursing staff undertook to review Smith's file but did "not find any documentation at this time of recommendations for physical therapy in external documents." Health Services, in response to complaints of pain in his left ankle, "offered patient Meloxicam or Sulindac for his pain." Smith, however, "declines stating he does not like taking pain medications." Dockets 154 ¶ 64, 153-91. According to Smith, he "can handle pain and does not want pain medication."

         As already indicated elsewhere herein, Smith, when seen by Health Services at the SDSP for a "routine physical exam" on January 10, 2017, was asked if he "had any further medical concerns." Dockets 154 ¶ 65, 153-92. In response thereto, Smith instructed medical staff "don't ask me that question." Smith displayed similar behavior when later seen by Health Services on April 7, 2017. The record reflects that Smith was said to be "argumentative" and informed the charge nurse that "I don't want to do this. We can do this in court." Dockets 154 ¶ 66, 153-93.

         Dr. Carpenter - Seroquel[1]

         The court also found that the Eighth Amendment claim against Dr. Mary Carpenter, in connection with taking Smith off of Seroquel, also survived screening. Docket 66 at 16-17. Smith claims his bipolar disorder was left "untreated." Smith alleges that Dr. Carpenter "is again the reason why I was taken off the medication Seroquel" and that she "made a decision to stop the Seroquel because the price had gone up and she didn't want to pay for this." Dockets 1 at 43-44. Defendants contend that Dr. Carpenter had nothing to do with the decision to discontinue the Seroquel. Mental Health medications are managed solely by Mental Health Services at the SDSP. Docket 155 ¶ 91.

         Lynette Melby, CNP, on or about December 31, 2014, submitted an Authorization Request to "continue Seroquel XR 300 mg orally at supper, " but that request was denied by the Mental Health Director on January 1, 2015. Docket 164-9 at 7. As reflected in Smith's medical records, the request to continue the Seroquel was denied because "need ...


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