United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT IN PART
AND DENYING IN PART AND DENYING MOTIONS FOR PRELIMINARY
INJUNCTION AND TO APPOINT COUNSEL
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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.
facts, viewed in the light most favorable to the non-moving
party, are as follows:
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.
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.
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
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.
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.
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 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.”
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.
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
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.
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
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.
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
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.
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
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.
October 19, 2016, RN Backhaus received a call from David
Fitzhughasking 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.
October 25, 2016, PA Michael Hanvey 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.”
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.
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.
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.
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
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.
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 ...