United States District Court, D. South Dakota, Southern Division
Lawrence L. Piersol, United States District Judge
Andrew Gregory Spotted Elk, filed this pro se lawsuit
pursuant to 42 U.S.C. § 1983. Defendants filed a motion
for summary judgment (Docket 28) contending that summary
judgment should be granted based on qualified immunity.
Spotted Elk thereafter filed motions to appoint counsel
(Docket 38 and 40) but did not respond to the defendants'
motion for summary judgment. Having considered the written
record in this case and for the reasons set forth below, the
defendants' motion for summary judgment will be granted
based upon qualified immunity.
local rules for this district require that the moving party
on a motion for summary judgment submit a statement of the
material facts as to which it contends there is no genuine,
issue to be tried. D.S.D. CIV. LR 56.1 (A). The opposing
party is required to respond to each numbered paragraph in
the moving party's statement of material facts, and to
identify any material facts as to which it contends there
exists a genuine material issue to be tried. D.S.D. CIV. LR
56.1 (B). All material facts set forth in the moving
party's statement of material facts are deemed admitted
if not controverted by the statement required to be served by
the party opposing summary judgment. D.S.D. CIV. LR 56.1(D);
see also On Target Sporting Goods, Inc. v. Attorney
General of the United States, 472 F.3d 572, 574 (8th
Cir. 2007); see also Northwest Bank & Trust Co. v.
First Illinois Nat'l Bank, 354 F.3d 721, 724-25 (8th
Cir. 2003) (holding it was not an abuse of discretion to deem
that plaintiff had admitted all of defendants' statements
of material facts as a sanction for noncompliance with local
summary judgment rules). Such rules are properly intended
"to prevent a district court from engaging in the
proverbial search for a needle in the haystack."
Libel v. Adventure Lands of America, Inc., 482 F.3d
1028, 1032 (8th Cir. 2007) (discussing a similar Iowa Local
Rule); see also Huckins v. Hollingsworth, 138
Fed.Appx. 860, 862 (8th Cir. 2005) (affirming district
court's application of D.S.D. CIV. LR 56.1 "even
though those rules prevented it from considering some facts
improperly alleged by [Plaintiffs] that might have been
relevant to the summary judgment motion").
pro se pleadings are to be construed liberally, pro se
litigants are not excused from failing to comply with
substantive and procedural law." Burgs v.
Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (citing
Faretta v. California, 422 U.S. 806, 834-35 n. 46
(1975)). Additionally, a district court has no obligation to
"plumb the record in order to find a genuine issue of
material fact." Barge v. Anheuser-Busch, Inc.,
87 F.3d 256, 260 (8th Cir. 1996). Nor is the court
"required to speculate on which portion of the record
the nonmoving party relies, nor is it obligated to wade
through and search the entire record for some specific facts
that might support the nonmoving party's claim."
Id. Summary judgment could be granted without
further analysis, because a party opposing summary judgment
"may not rest upon the mere allegations or denials of
his pleading, but . . . must set forth specific facts showing
that there is a genuine issue for trial." Fed.R.Qv.P.
defendants filed a Statement of Undisputed Facts (Docket 163)
along with supporting affidavits and exhibits. The
defendants' undisputed facts are recited below:
Plaintiff, Andrew Spotted Elk, is an inmate currently
incarcerated at the South Dakota State Penitentiary (SDSP) in
Sioux Falls, South Dakota. Docket 7 at 29. On or about July
15, 2014, Spotted Elk pled guilty to Aggravated Assault in
violation of SDCL 22-18-1(2). Subsequent thereto, on or about
December 10, 2014, Spotted Elk was sentenced to serve fifteen
(15) years in the SDSP. Docket 21 at 113.
injuries which now form the basis for Spotted Elk's
current complaint occurred prior to his incarceration at the
SDSP. Dockets 31 ¶ 4; 29-11; 19-57. When seen by Health
Services at the SDSP on December 3, 2015, Spotted Elk
indicated that he injured his lower back when he."jumped
off a trailer and landed wrong." Dockets 31 ¶ 4-5;
29-11; 29-57. According to Spotted Elk, he suffered severed
tendons and nerves in his right arm from a "deep
December 9, 2015, Spotted Elk told Health Services that he
suffered a "significant laceration to right inter
forearm" when he "fell through a window -
2002-2003." Dockets 31 ¶ 5; 29-36; 29-57. As for
the injury to his back, Spotted Elk again indicated that he
"jumped off a trailer (house) landed on legs and went to
IHS." According to Spotted Elk, he was "cleared
with no fractures" and "no x-rays performed."
Defendant Eugene Regier is a licensed physician authorized to
practice medicine in the State of South Dakota since on or
about June 1965. Docket 31 ¶ 1. Dr. Regier has been
providing medical services to inmates incarcerated at the
SDSP since on or about June 1996. Docket 31 ¶2. He
became an employee of the South Dakota Department of Health
(SDDOH) in May 2001 when said agency undertook the
responsibility of providing medical care of inmates
incarcerated in the State's correctional facilities.
Docket 31 ¶ 2.
Count 1 of his Complaint, Spotted Elk alleges that Defendant
Regier "willingly supports Dr. Adams in his malpractice
and stands firm in supporting his action not to place me back
on the medication I was taken off due to reason
unknown." Docket 7 at 32. According to Spotted Elk, Dr.
Regier is "allowing me as well to suffer from the
chronic arm and back pain by his unwillingness to adjust or
manage my pain medication."
Spotted Elk, in Count 2 of his Complaint, alleges that
"due to a Incident Report which was dismissed the two
individuals [Regier/Adams] above will not provide any care to
me related to the area the write up was issued." Docket
7 at 33. It is alleged that "DOC officials had stated to
these individuals that the write up is nonexistent and that
they cannot refer to it or use it against me but Dr. Adams
and Dr. Regier continue to."
Finally, Spotted Elk contends, in Count 3 of his Complaint,
that "these individuals continue to exercise defamation
of character by allowing the notes on my chart to state
medication abuse which has affected the medical services I
receive negatively." Docket 7 at 34.
Court, in an Order dated August 12, 2016, found that "to
the extent that Spotted Elk raises a claim based on
Defendant's failure to follow the policies of the South
Dakota Department of Corrections (SDDOC), it is
dismissed." Docket 11 at 81. As found by the Court,
"there is no § 1983 liability for violating prison
policy." Gardner v. Howard, 109 F.3d 427, 430 (8th Cir.
regards to Spotted Elk's allegations that Defendants
defamed him by stating that he abused medication in his
medical file, the Court found that "this file ... by its
nature is not published." Docket 11 at 81-82. Thus, to
the extent that Spotted Elk raises a claim for defamation,
his claim is dismissed."
was said that "to the extent that Spotted Elk raises a
claim of medical malpractice where a claim based on
negligence, it is dismissed." Docket 11 at 80. According
to the Court, "medical malpractice does not become a
constitutional violation merely because the victim is a
prisoner. " McRaven v. Sanders, 577 F.3d 974,
982 (8th Cir. 2009).
Although indicating that "it is true that a prisoner has
no constitutional right to a particular course of treatment
and claims based solely on a disagreement with the course of
treatment do not rise to the level of a constitutional
violation, " the Court stated that "this is not a
mere disagreement concerning treatment." Docket 11 at
80. The finding was based on Spotted Elk's
claims/allegations that he was "denied medication
review, however, of Spotted Elk's medical records reveals
that there is absolutely no support whatsoever the
allegations that Spotted Elk was "denied medication
completely." Dockets 31 ¶22; 29-5; 29-6; 29-19;
29-27; 29-52; 29-53.
Spotted Elk was initially prescribed Lyrica in response to
his complaints of chronic back pain. Dockets 31 ¶ 6;
29-2. That medication, however, was later discontinued, on or
about October 21, 2015, after an Informational Report was
written charging Spotted Elk for having committed Prohibited
Act L-14 which prohibits the "misuse of prescribed or
authorized medicine, including saving or accumulation of
authorized medicine contrary to medical orders'."
Dockets 31 ¶ 6; 29-1; 29-2.
is indicated in said report, Officer Preston Perrett was
conducting morning medication pass when he "observed
Inmate Spotted Elk attempt to take his medication."
Dockets 31 ¶ 7; 29-1. According to the report, the
officer "observed Inmate Spotted Elk put his medication
on the right side of his lower jaw."
officer therefore "instructed Inmate Spotted Elk to open
his mouth so [he] could visibly see there was no
medication." The record reflects that during the check,
it "appeared the medication was still on the right side
of his mouth." Dockets 31 ¶ 7; 29-1. Said report
further states that "this is an ongoing issue with
Inmate Spotted Elk."
Lyrica is considered a "preferred drug" that is
often sought after by inmates due to its perceived euphoric
potential. Docket 31 ¶ 9. It is therefore a medication
that can be and has been abused by inmates. As such, it is
closely monitored by medical staff at the SDSP to insure that
it is being properly used by those individuals to whom it has
been prescribed. Docket 31 ¶ 10.
risks associated with abusing/misusing prescribed medications
such as Lyrica includes serious, even life-threatening
allergic reactions. Docket 31 ¶ 10. Abuse of this
medication has also been said to lead to serious seizures
which can require immediate hospitalization. Moreover, Lyrica
is known to contain addictive properties and is thus
considered very dangerous when abused. Docket 31 ¶ 10.
the opinion of medical staff at the SDSP, the health/safety
risk associated with continuing to prescribe Lyrica for
Spotted Elk, after there was reason to suspect that he was
abusing the same, clearly outweighed any risk associated with
discontinuing the use of that particular medication. Docket
31 ¶ 11 The risks associated with discontinuing Spotted
Elk's prescription for Lyrica were considered by medical
staff to be minimal given the various alternative medications
that could be prescribed for his complaints of chronic back
pain. Docket 31 ¶ 11.
Based on the above, Health Services at the SDSP "called
Brad Adams PAC" on the afternoon of October 21, 2015 to
discuss said "write up." Dockets 31 ¶ 12; 29-
2. Staff "received verbal order over the phone" to
"stop/discontinue . . . Lyrica 150 mg POTID after supper
record, however, reflects that medical staff were further
instructed to "start Lyrica 150 mg'capsules, 150 mg
#6: take one capsule by mouth two times per day for three
days." In addition thereto, Health Services were further
directed to "start Lyrica 150 mg capsules, 150 mg #3:
take one capsule by mouth one time per day for three days
Dockets 31 ¶ 13; 29-2. Finally, Spotted Elk was
prescribed "Lyrica 150 mg #3: take one capsule by mouth
QOD x 5 days."
When seen by Health Services at the SDSP on October 23, 2015,
Spotted Elk complained that "medication for his back
pain, Lyrica was being discontinued." Dockets 31 ¶
14; 29-3. He;told medical staff that
"Informational was written, however, he has not been
found guilty of this action." Spotted Elk, therefore,
was "requesting his Lyrica to be renewed until DHO/UDC
conclusion." Dockets 31 ¶ 14; 29-3.
provider, per "nursing note, " undertook to
"review chart" on October 23, 2015. As indicated in
his medical records, "patient has had multiple issues
with med abuse." Dockets 31 ¶ 15; 29-3. The
decision was thus made by provider that Lyrica "will not
October 29, 2015, Spotted Elk told Health Services that he
"wants visit with provider about medication being
renewed specific to Lyrica because write up was
dismissed." Dockets 31 ¶ 19; 29-4. The record,
however, reflects that "patient has documentation of
cheeking medicine and this is not the first occurrence,
" Dockets 31 ¶ 19; 29-4. Spotted Elk, therefore,
was again advised that "Lyrica will not be
review of Spotted Elk's medical records reflects that
there is another entry/notation dated October 29, 2015, again
indicating that "patient with documentation with
cheeking Lyrica." Dockets 31 ¶ 20; 29-5. As
indicated therein, "when medicine is abused and not
taken as directed, it shows that patient does not need
medication." Spotted Elk, therefore, was advised that he
"can use Ibuprofen and Tylenol prn for pain."
Dockets 31 ¶ 20; 29-5.
Spotted Elk later reported to Health Services on November 16,
2015 "wanting different pain medication." Dockets
31 ¶ 21; 29-6. It was, however, once again documented
that provider "will not start Lyrica due to
misuse." 26. In response to Spotted Elk's request
for "different pain medication, " the provider
elected to "start Gabapentin." Dockets 31 ¶
21; 29-6. Spotted Elk was directed to "take one capsule
by mouth three times a daily: breakfast, noon and
supper." Dockets 31 ¶ 21; 29-7.
Spotted Elk's medical records reflect that Gabapentin is
considered a "somewhat similar medication" to
Lyrica. Dockets 31 ¶ 23; 29-8. Both drugs are
antiepileptic medication that are often prescribed to treat
complaints of neuropathic pain.
When later seen by Health Services on January 5, 2016, it was
said that Spotted Elk "issue today appears more
concerned with the absence of Lyrica than it does with his
actual discomfort." Dockets 31 ¶ 27; 29-8. As
reflected in his medical records, Spotted Elk's current
issue ... is virtually all related to the absence of
Spotted Elk, on January 5, 2016, told Health Services that
"the ruling was reversed" and "there is no
record of him abusing the Lyrica." Dockets 31 ¶ 28;
29-8. According to Spotted Elk, "he does not feel that
checking with DOC personnel will be required for useful or
even allowed since, according to him, there is no record of
response thereto, "patient is informed the order for
Gabapentin will remain in place." Dockets 31 ¶ 29;
29-8. Spotted Elk was specifically told that "no Lyrica
will be order now or for that matter again until this
provider has had an opportunity to discuss the issue with the
provider who discontinued the Lyrica."
Spotted Elk later reported to Health Services on January 6,
2016, "to see if Dr. Regier had made any changes to his
medications." Dockets 31 ¶ 30; 29-35. When told
that he had not, Spotted Elk stated that "he should have
and that he has a lawsuit filed due to this."
record reflects that, when seen on January 6, 2016,
"patient did not appear to be in any pain" and
"was not in any acute distress." Dockets 31 ¶
31; 29-35. Spotted Elk also "didn't complain of any
pain at this time."
Spotted Elk, on February 4, 2016, reported to sick call and
informed Health Services that "I have a civil rights
lawsuit filed against Dr. Regier because he isn't doing
his job and doing what I need done." Dockets 31 ¶
February 22, 2016, Spotted Elk again reported to Health
Services complaining that he was "being discriminated
against due to being an inmate." Dockets 31 ¶ 34;
29-36. He was "wondering why his Lyrica has not been
order as the ...