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Vice v. Carpenter

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

July 31, 2018

DEREK VICE, Plaintiff,
v.
DR. MARY CARPENTER, LT. FITZU, C/O BOYSEN, C/O ROBERT KIRVIN, PA TAMMY TOP, DR. JOE HANVEY, SGT. HERMANN, CORRECTIONAL OFFICER STOYNOV, Defendants.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT IN PART AND DENYING IN PART AND DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND TO APPOINT COUNSEL

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiff, Derek Vice, filed an amended complaint alleging that defendants violated his rights under the Eighth Amendment, the Americans with Disabilities Act (ADA), and the Rehabilitation Act (RA). Docket 1; Docket 10; Docket 13. Defendants move for summary judgment and claim qualified immunity. Docket 57.

         FACTUAL BACKGROUND

         The facts, viewed in the light most favorable to the non-moving party, are as follows:

         Derek Vice is an inmate currently incarcerated at the South Dakota State Penitentiary (SDSP) in Sioux Falls, South Dakota. Docket 61 ¶ 1. Vice suffers from some back pain and has had several tests and evaluations of his back at CORE Orthopedics. In the past, Vice had an order that indefinitely authorized him the use of a wheelchair. Docket 58-3. That order was discontinued when Vice was transferred to the Mike Durfee State Prison (MDSP) in Springfield, South Dakota. Docket 61 ¶ 14. On April 15, 2015, Vice received a spinal x-ray that revealed he had “mild to moderate spondylosis.” Docket 58-3. On May 21, 2015, after returning to SDSP, Vice visited Health Services complaining of back pain. Id. At the visit, Vice requested that his order for use of a wheelchair be reinstated. Id. RN Lisa Harlan noted at that time that Vice did not have a diagnosis to support the use of a wheelchair. Id.

         On September 26, 2015, Department of Corrections (DOC) staff informed RN Christopher Bruns that Vice was complaining of chest pain and shortness of breath. Docket 58-4. RN Bruns told DOC staff to bring Vice upstairs to Health Services. Id. DOC staff then informed RN Bruns that Vice refused to go upstairs, so RN Bruns visited Vice in his cell. Id. RN Bruns asked Vice why he refused to go upstairs and Vice responded that “he has a wheel chair order that never expires from 2014.” Id. Vice further stated that he needs the wheelchair and that he would pass out if he tried to walk all the way to Health Services. Id. RN Bruns then told Vice that, during the previous two evenings, he had observed Vice lie next to his cell door and then get up from that position without difficulty or extra effort. Id. RN Bruns reiterated that Vice needed to come to Health Services to be properly assessed by medical staff and that he would investigate Vice's claim about the wheelchair order. Id. Vice refused to come to Health Services without a wheelchair. Id.

         On November 24, 2015, Health Services received a letter from Advocacy Services recommending that Vice be permitted to use a CPAP machine and that he be permitted to use a walker with wheels. Docket 58-5. The letter also stated that Vice has “asked the nurse to re-order his Neurotin and the use of a cane.” Id. And the letter ended stating that Vice's requests were reasonable and asked for a response to his requests. Id. On December 30, 2015, Vice visited Health Services “regarding a reported mass on his left hand which [Vice] states has been present for approximately 1.5 years.” Docket 58-7. Dr. Eugene Regier observed Vice and stated that Vice was “ambulatory” and made a treatment plan for Vice's mass. Id. Dr. Regier also recommended that Vice be provided with a replacement CPAP machine. Id. Vice did not ask for a wheelchair. Id. On February 2, 2016, RN Jessica Schreurs responded to the November 24 letter from Advocacy Services stating that Vice had received a CPAP machine and an order for Neurontin. Docket 58-6. RN Schreurs also stated that Vice has a current order for a cane and had not made a request for a walker at his December 30 visit to Health Services. Id. She encouraged Vice to attend sick call if he felt he needed a walker. Id.

         On February 1, 2016, RN Lisa Harlan observed Vice “lying on his back with both knees bent. Report from officer states [Vice] allegedly fell somewhere around 1450 while in rec cage but was unwitnessed.” Docket 58-8. Vice refused to “cuff up” without a wheelchair, so RN Harlan could not enter the rec cage to further examine Vice. Id. Vice claimed he needed a wheelchair to get back to his cell and shower because he was in excruciating pain. Id. RN Harlan stated that Vice was able to “move his legs without difficulty but states the pain in his lower back is unbareable [sic] . . . .” Id. Vice was able “to drag his body across the floor to take his pills” and appeared to not be in distress. Id. RN Harlan also noted that Vice had a current cane order but that his cane was taken away when he was placed in the SHU. Id.

         On February 4, 2016, Vice reported to Health Services and told RN Ashley Campbell that “he can not be released from the SHU unless he has a wheelchair for back pain. [Vice] state[d] multiple back injuries over the years that have caused this back pain.” Docket 58-10. Vice told RN Campbell that he had a scheduled appointment for the following day with the provider and would wait until his appointment to express his desire for a wheelchair. Id. On February 5, 2016, Vice communicated to Dr. Regier that a few days prior to the appointment “he fell over backwards when he lost his balance and injured his lower back.” Docket 58-11. Vice stated that since the fall he could not walk because when he tried to walk he felt weak. Id. He also stated that he could not use stairs. Id. Dr. Regier noted that Vice presented in a wheelchair, he reacted to moving passively and actively, and “show[ed] no evidence of any atrophy of musculature of the lower extremities and sensation appear[ed] to be grossly intact as well.” Id. As a result of his visit, Dr. Regier ordered that Vice utilize a wheelchair for two weeks and not use stairs for two weeks. Id.

         On February 18, 2016, Vice came to Health Services in a wheelchair and requested to have his order for a wheelchair and no stairs extended. Docket 58-12. Both orders were set to expire on February 18, 2016. Id. PA Brad Adams gave RN Lonna Konglin permission to extend the orders by one day so that Dr. Regier could evaluate Vice's continued need for a wheelchair. Id. On March 3, 2016, Vice received an MRI[1] of his lumbar spine at Avera McKennan Hospital. Docket 58-14. The results of the MRI found that “[t]here is transitional anatomic variant anatomy” and “partial lumbarization of the S1 vertebral body with the right S1-S2 pseudarthrosis.” Id. There was also a “bony hypertrophy of the pseudarthrosis and right lateral marginal osteophyte S1-S2 level producing mild stenosis of the right foramen.” Id.

         On March 9, 2016, Health Services received the results of the MRI. Docket 58-16. Dr. Regier then met with Vice about the MRI results and ordered that Vice have a walker for three months. Docket 58-17. On March 15, 2018, Vice visited Health Services and asked about his wheelchair. Docket 58-18. RN Bruns informed Vice that his wheelchair order had expired. Id. Vice responded stating, “how are you going to take away a wheelchair from someone who can't walk?” Id. Vice then stated, “we have a Dr. that really wants me to walk, and so do I, but everything needs to happen in its own time.” Id. RN Bruns explained that the doctor ordered Vice a walker and that he would be brought back to his cell in a wheelchair but that a walker would be provided once he was back in his cell. Id. Vice then left the waiting room to be escorted to his cell. Id.

         On March 31, 2016, Core Orthopedics evaluated Vice because of his continued complaints of low back pain. Docket 58-9; Docket 58-19. Dr. Gregory Alvine at CORE Orthopedics noted that the MRI revealed “degenerative disc and collapse at ¶ 4-L5 and L5-S1 and left foraminal stenosis at ¶ 5-S1 with some very mild stenosis at ¶ 4-L5.” Docket 58-9. Dr. Alvine discussed with Vice “that degenerative discs can cause some back pain but oftentimes there is not a good surgical option for it so [Vice] need[s] to work on his paraspinal muscle strengthening exercises for long-term management.” Id. Dr. Alvine advised Vice that “[w]e are going to try a left L5 transforaminal epidural which might help with the symptoms in his leg.” Id. Dr. Alvine recommended physical therapy for his low back pain and Vice agreed with Dr. Alvine's plan. Id. Thus, Dr. Alvine placed Vice on a “home program” and instructed him to complete “strengthening exercises 2-3x/ week x 1 month.” Id.

         On April 6, 2016, Vice visited Dr. Regier in Health Services in a wheelchair and complained of low back pain and neck pain. Docket 58-20. Vice told Dr. Regier that he did not feel as though he had received sufficient treatment for his back and he wanted to have surgery. Id. Dr. Regier told Vice that surgery was not recommended at this time and “may or may not be beneficial.” Id. Dr. Regier noted that Vice had been “using a wheelchair for virtually all his means of getting around the prison.” Id. And Dr. Regier noted that Health Services continued to encourage Vice to be ambulatory and strengthen his muscles but he did not make “any great efforts to get out of his wheelchair.” Id. Dr. Regier reordered Vice's wheelchair for two additional months. Id.

         On April 7, 2016, Health Services “went cell front to notify [Vice] of medication” and observed Vice lying down with his feet up and observed him walk to his cell front and back to his bed without any assistive device. Docket 58-21. On April 22, 2016, Vice underwent a transforaminal nerve root block at Avera McKennan Hospital. Docket 58-22. On May 3, 2016, Vice went to Avera Therapy Center for physical therapy. Docket 58-23. He reported that he had back pain for 30 years, and about three months prior, he slipped in the shower and that caused an increase in symptoms. Id. He also reported that the transforaminal injection did not reduce his pain and he wanted stronger medication. Id. On June 15, 2016, Vice visited Health Services and RN Schreurs noted that Health Services had “[r]eceived an administrative remedy request from patient requesting a handicap classification due to pain and being in a wheelchair.” Docket 58-27. RN Schreurs also noted that Vice had an approved neurosurgical consult that still needed to be scheduled. Id. On July 7, 2016, Vice visited Health Services and RN Bowers observed Vice “transfer from wheelchair and ambulate with a cane to scale and exam table . . . without difficulty.” Docket 58-28. RN Bowers further noted that Vice's “gait was steady and [he] did not show any signs of pain with ambulation.” Id.

         On July 14, 2018, Vice was seen by Dr. Wissam Asfahani for a neurological consult. Docket 58-30. At the consult, Vice asked for a medical order for a wheelchair several times because his wheelchair was taken from him the day before. Id. Dr. Asfahani “told Vice that it would actually be worse for him to be in a wheelchair and there was no medical reason for him to have one.” Id. Dr. Asfahani also told Vice that there was no reason for him to have a cane. Id. Vice also asked Dr. Asfahani for pain medication and Dr. Asfahani refused. Id. Later the same day, Vice visited Health Services after his appointment with Dr. Asfahani. Docket 58-31. LPN Ashley Campbell noted that Vice “ambulated with cane without difficulty.” Id. And RN Carol Simon noted that Vice argued about his need for a wheelchair but that the provider stated that he did not need a wheelchair. Docket 58-32. As a result of the visit, Dr. Asfahani recommended Vice have a left L5-S1 microdiscectomy surgery. Docket 58-2.

         On July 16, 2016, Vice presented to medication pass and asked if he was starting new medication because his doctor [Dr. Asfahani] recommended Tramadol. Docket 58-32. RN Shelbi Backhaus noted that Vice “was walking with his cane and was ambulating just fine.” Id. On July 19, 2016, Vice came to the medication window and told LPN Jennifer Jensen that he would go on a med strike if he did not get the Tramadol that the neurosurgeon recommended. Docket 58-33. On August 19, 2016, Dr. Carpenter denied Vice's Utilization Management (UM)[2] request for a microdiscectomy, as recommended by Dr. Asfahani, because there was inconsistent documentation regarding Vice's symptoms and because Dr. Carpenter believed that Vice was a poor candidate for surgery due to his history of not following treatment plans. Docket 58-58; Docket 59 ¶ 65.

         On September 12, 2016, Vice reported to Health Services after his request for surgery was denied. Docket 58-35. CNP Tammy Top informed Vice that his surgery was denied “based on inconsistent report of symptoms and patient's activities at rec[.]” Id. When CNP Top referred to reports that Vice had attended rec without his cane he responded, “I don't need it. It doesn't help[.] [I]t's only for balance.” Id. CNP Top also noted that Vice climbed onto the exam table without difficulty. Id.

         On October 17, 2016, RN Harlan and RN Jeremy Tamisiea went to the federal hall to assess Vice because Vice was complaining of back pain and claimed he was paralyzed. Docket 58-37. Vice told RN Harlan that he fell on October 15, 2016, and had been in pain since that time. Id. The nurses did not see any bruising on his arms or back and did not see any scratches. Id. RN Tamisiea then conducted a variety of tests on Vice and concluded that he was “unable to fully assess as patient is not cooperative will not keep eyes closed [when instructed] and there are inconsistencies in patient stating he has decreased sensation but also responding to deep tendon reflexes and negative Babinski sign.” Id. RN Tamisiea also noted that the “patient briskly twisted his back in an aggressive manner during assessment of his spine.” Id.

         On October 19, 2016, RN Backhaus received a call from David Fitzhugh[3]asking whether Vice was paralyzed. Docket 58-41. RN Backhaus stated that he was not paralyzed and did not have an order for a wheelchair. Id. Fitzhugh then authored an incident report describing Vice's facility rules violation. Docket 58-42. The report states, “Inmate Vice pretended he was paralyzed from the waist down during a fire drill today. . . . [H]e claimed chest pains and demanded health services come to his cell when we were going to transport him by wheel chair.” Id. Also on October 19, 2016, Ryan Vanderaa authored an incident report stating that “Vice came from the hill for disciplinary reasons. . . . I wheeled him over to the holding enclosure in section six, he stood up on his own, turned around, and sat back down.” Docket 58-43. Later on the same day, Justin Korth authored an incident report. Docket 58-44. Korth stated that he went to the section six holding cell to move Vice to cell 96. Id. Vice refused hand restraints, demanded a new mattress, and expressed his thoughts about committing self harm. Id. Vice continued to yell and refuse directives to be placed in hand restraints. Id. Finally, Jess Boysen pulled out his OC spray and gave a final directive to Vice that Vice refused. SCO Boysen then sprayed Vice and Vice “stood up, turned around, and took off his gown to block the cuffport of the holding cell. Id.; see also Docket 58-45; Docket 58-46; Docket 58-47.

         On October 25, 2016, PA Michael Hanvey[4] evaluated Vice because he had gone on a hunger strike. Docket 58-49. PA Hanvey confirmed that Vice had missed at least nine meals. Id. Vice told PA Hanvey that he fell on October 15, 2016, and had been unable to walk since that time. Id. PA Hanvey noted that Vice's exam was completely inconsistent, so it was difficult to identify Vice's source of discomfort. Id. PA Hanvey stated that he saw “no indication why he needs a wheelchair” and denied the request for a wheelchair. Id. PA Hanvey also stated that he believed Vice was “a very poor surgical candidate given his level of motivation to follow treatment recommendations[.]” Id. PA Hanvey offered Vice the use of a walker and cane and Vice refused. Id. Later the same day, Amber Hagen documented that she witnessed Vice transfer himself from the wheelchair to the toilet and then to the floor without pain or problems. Docket 58-50. On October 27, 2016, Vice visited LPN Alyssa Johnson at Health Services and complained that he was unable to walk. Docket 58-51. LPN Johnson noted that “multiple reports from unit staff state that [Vice] walks throughout the day.” Id.

         On November 10, 2016, Vice visited Health Services in a wheelchair stating that he had not showered since October 15, 2016, and stating that he wanted a walker. Docket 58-3. On November 14, 2016, Health Services received a medical kite from Vice that stated, “This is the 29th day with no shower or mobility and I have been bed ridden I need pain treatment and a wheelchair order so I will be able to get to the downtown appt that is scheduled.” Docket 58-54. On November 16, 2018, Health Services received a medical kite from Vice that stated, “This is the 30th day since I fell and I have not been given any pain relief of any means of mobility you are causing me to miss my religious programs and my legal access and any other schooling I would like to attend.” Docket 58-55. On November 19, 2016, Health Services received a kite stating, “My brain is pounding on my skull and my head keeps falls (sic) forward from the pain. I am requisting (sic) a pain reliever and a neck brace and have been for days.” Docket 58-56.

         On November 24, 2016, RN Hollie Nedved visited Vice at his cell and observed him walk toward the cell front. Docket 58-57. RN Nedved encouraged Vice to take his medication and Vice stated that he had stopped taking his medication 40 days earlier. Id. On November 23 and November 24 of 2016 Health Services received medical kites from Vice where he asked for a wheelchair, neck brace, and pain medication. Id. He also stated that he had not showered since October 15, 2016. Id. On November 30, 2016, Avera Medical Group Neurology issued its report on Vice's EMG/Peripheral Nerve Conduction Study. Docket 58-59. The result of the study stated that “There is no convincing electrophysiologic evidence of a radiculopathy, plexopathy or other mononeuropathy affecting the bilateral upper or lower extremities. There is also no evidence of a more diffuse myogenic disorder or of CIDP.” Id.

         On December 5, 2016, RN Schreurs received a report that Vice stated that he could walk and would like a wheelchair “to walk behind and rest if necessary.” Docket 58-60. RN Schreurs discussed the request with Dr. Joe Hanvey and decided to order a walker with a seat for ninety days. Id. On December 14, 2016, Vice visited Health Services to discuss the results of his EMG/nerve conduction study. Docket 58-63. Dr. Regier discussed the results of the test with Vice and Vice requested “the strongest pain medicine you can give me.” Id. Dr. Regier requested a follow-up appointment with Dr. Asfahani. Id.

         On January 17, 2017, Dr. Asfahani evaluated Vice for chronic neck pain and low back pain. Docket 58-67. Dr. Asfahani's impression stated that “the lumbar spine show[s] partial lumbarization of the S1 vertebral body with multilevel disc degeneration.” Id. His impression also states that Vice has “mild canal stenosis, ” “foraminal stenosis with chronic mass effect, ” and “moderate degenerative disc disease.” Id. Dr. Asfahani's treatment plan consisted of physical therapy, an updated MRI, a left C6-7 epidural steroid injection, and another follow-up appointment. Id.

         On May 15, 2017, Vice had a follow-up appointment with Dr. Asfahani. Docket 58-72. At the appointment, Dr. Asfahani noted that Vice had recently undergone a bilateral L3, L4, L5 medial branch block but the series could not be completed due to Vice's pain and discomfort. Id. As a result of the appointment, Dr. Asfahani faxed his recommendations to the prison stating that he recommends that Vice go to Avera Pain Management for pain management and stated that Vice is a candidate for a left L5S1 lumbar microdiscectomy. Docket 58-73. Vice was then scheduled for surgery. Docket 58-74.

         On June 12, 2017, Vice received his left L5S1 lumbar microdiscectomy and returned to Health Services with DOC staff post-operative. Docket 58-75. Upon returning, Health Services noted he felt lethargic. Id. Around two hours later, RN Rachel DePree noted that Vice was visiting with a patient in the adjacent bed and moving in the bed without visible pain. Id. Vice was also ...


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