Elk v. Adams

          ORDER

          Lawrence L. Piersol, United States District Judge

         Plaintiff, 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.

         FACTUAL BACKGROUND

         The 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").

         "Although 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. 56(e).

         The defendants filed a Statement of Undisputed Facts (Docket 163) along with supporting affidavits and exhibits. The defendants' undisputed facts are recited below:

         1. 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.

         2. The 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 laceration."

         3. On 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." Docket 29-57.

         4. 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.

         5. In 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."

         6. 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."

         7. 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.

         8. The 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. 1997).

         9. In 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."

         10. It 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).

         11. 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 completely."

         Denial of Medication

         12. A 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.

         13. 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.

         14. It 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."

         15. The 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."

         16. 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.

         17. The 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.

         18. In 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.

         19. 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 dose tonight."

         20. The 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."

         21. 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.

         22. The 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 be restarted."

         23. On 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 restarted."

         24. A 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.

         Alternative Medications Prescribed

         25. 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.

         27. 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.

         28. 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 Lyrica."

         29. 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 same."

         30. In 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."

         31. 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."

         32. The 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."

         33. 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 ¶ 33; 29-41.

         34. On 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 ...