United States District Court, D. South Dakota, Southern Division
Lawrence L. Piersol United States District Judge
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ¶
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
Carpenter - Nasal Injury
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,
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.
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.
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.
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.
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.
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,
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.
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
Carpenter - Ankle Injury
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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,
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
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
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."
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.
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 ¶
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."
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."
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."
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
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.
Carpenter - Seroquel
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.
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