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Maday v. Dooley

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

August 24, 2018

STANLEY J. MADAY, Plaintiff,
v.
BOB DOOLEY, CHIEF WARDEN AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; DENNIS KAEMINGK, SECRETARY OF THE SOUTH DAKOTA DOC, INDIVIDUAL AND OFFICIAL CAPACITY; DR. MARY CARPENTER, DIRECTOR OF THE DEPARTMENT OF HEALTH, INDIVIDUAL AND OFFICIAL CAPACITY; JENNIFER STANWICK-KLIMEK, DEPUTY WARDEN AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; REBECCA SCHIEFFER, ASSOCIATE WARDEN AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; ALEJANDRO REYES, ASSOCIATE WARDEN AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; BRENT FLUKE, ASSOCIATE WARDEN AT MIKE DURFEE STTAE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; JOSH KLIMEK, UNIT MANAGER AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; TRAVIS TJEERDSMA, MANAGER AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; TAMMY DEJONG, MANAGER AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; PA MICHAEL JOE HANVEY, MEDICAL PROVIDER AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; PA BRAD ADAMS, MEDICAL PROVIDER AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; DR. STEPHAN SCHROEDER, MEDICAL PROVIDER AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; MISTY TOLSMA-HANVEY, NURSING SUPERVISOR, AT MIKE DURFEE STATE PRISON INDIVIDUAL AND OFFICIAL CAPACITY; LINDSEY RABBASS, NURSE AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; ROBIN MYER, NURSE AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; CANDICE FEJFAR, NURSE AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; DAYNA KLAWITTER, NURSE AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; DENNIS CROPPER, CORRECTIONAL OFFICER AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; THOMAS HUITEMA, CORRECTIONAL OFFICER AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; MICHAEL MEYER, CORRECTIONAL OFFICER AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; LORI STRATMAN, CORRECTIONAL OFFICER AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; MIKE GROSSHUESCH, CORRECTIONAL OFFICER AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; NICOLE ST. PIERRE, CORRECTIONAL OFFICER AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; MURIEL NAMMINGA, LAUNDRY SUPERVISOR AT MIKE DURFEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; CATHERINE SCHLIMGEN, LEGAL COUNSEL FOR THE SOUTH DAKOTA DOC, INDIVDUAL AND OFFICIAL CAPACITY; UNKNOWN CBM FOOD SERVICES EMPLOYEES, INDIVIDUAL AND OFFICIAL CAPACITIES; UNKNOWN SOUTH DAKOTA DOC EMPLOYEES, INDIVIDUAL AND OFFICIAL CAPACITES; UNKNOWN SOUTH DAKOTA DOH EMPLOYEES, INDIVIDUAL AND OFFICIAL CAPACITIES; JON E. LITSCHER, SECRETARY OF THE WISCONSIN DOC, INDIVIDUAL AND OFFICIAL CAPACITY; KATHARINE A. ARISS, ASSISTANT LEGAL COUNSEL FOR THE WISCONSIN DOC, INDIVIDUAL AND OFFICIAL CAPACITY; THOMAS P. MALONEY, LIBRARY SERVICES AND EDUCATIONAL TECHNOLOGY COORDINATOR FOR THE WISCONSIN DOC, INDIVIDUAL AND OFFICIAL CAPACITY; UNKNOWN WISCONSIN DOC EMPLOYEES, INDIVIDUAL AND OFFICIAL CAPACITIES; CBM FOOD SERVICES, MEAL AND COMMISSARY PROVIDER FOR THE SOUTH DAKOTA DOC, OFFICIAL CAPACITY; STEPHANIE HAMILTON, RN AT MIKE DURVEE STATE PRISON, INDIVIDUAL AND OFFICIAL CAPACITY; TIFFANY VOIGT, UNIT COORDINATOR, INDIVIDUAL AND OFFICIAL CAPACITY; DIANE ROMKEMA, CASE MANAGER, INDIVIDUAL AND OFFICIAL CAPACITY; GLOBAL TEL & LINK CORPORATION, OFFICIAL CAPACITY; UNKNOWN GTL EMPLOYEES, INDIVIDUAL AND OFFICIAL CAPACITIES; LEXIS NEXIS, OFFICIAL CAPACITY; AND UNKNOWN LEXIS NEXIS EMPLOYEES, INDIVIDUAL AND OFFICIAL CAPACITIES; Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING BRAD ADAMS

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiff, Steven Maday, filed this lawsuit under 42 U.S.C. § 1983. Dockets 1 and 94. The case was referred to Magistrate Judge Veronica Duffy under 28 U.S.C. § 636(b)(1)(B), including defendant Brad Adams's motion to dismiss under Fed.R.Civ.P. 12(b)(6). On May 31, 2018, Magistrate Judge Duffy submitted her report and recommended that Adams's motion to dismiss be granted. Docket 96. Maday objected to the report and recommendation. Docket 99. For the reasons below, the court adopts Magistrate Judge Duffy's report and recommendation as modified and grants Adams's motion to dismiss.

         FACTUAL BACKGROUND

         For a complete factual background regarding Maday's allegations against Adams, the court refers to Magistrate Judge Duffy's report and recommendation. See Docket 96. The court will briefly provide a background of Maday's allegations against Adams, construing facts pleaded by Maday as true. Maday claims that Adams was deliberately indifferent to his serious medical needs. Docket 1 ¶ 38.

         Adams first saw Maday on October 14, 2015 to follow up on a September 11, 2015 sick call. Docket 1 ¶ 65. Maday had a lesion under his left big toenail and severe pain in his right heel. Id. Adams referred Maday to a podiatrist outside of the prison for the lesion, provided arch support inserts for the heal pain, and ordered x-rays to rule out a bone spur. Id.

         Adams next saw Maday on June 17, 2016. Docket 94 ¶ 514. Maday requested his preferred brand of diabetic sock, but Adams could not provide Maday with his preferred brand of diabetic sock. Id. Adams explained that the only diabetic socks available were those issued by the MDSP laundry. Id. So Adams offered Maday a prescription for Ted hose stockings and gave Maday a handout on plantar fasciitis. Id. The handout included various stretches and the following instruction: “You may need to stay completely off your foot for several days when the pain is severe.” Docket 99-1.

         On July 1, 2016, Adams signed off on nurse Stephanie Hamilton's treatment plan that was developed during Maday's June 27, 2016 sick call with Hamilton. Docket 94 ¶ 517. During sick call, Maday complained of severe pain in both feet and requested a “medical lay in tray.” Id. Maday relied on the handout he received from Adams. Dockets 94 and 99. Hamilton denied Maday's request and recommended walking to stretch the tendons. Docket 94 ¶ 517.

         Then Adams saw Maday for a chronic care visit on August 9, 2016. See Docket 1 ¶ 83. Maday asked “if it was normal to have constant pain at the site of a fracture after it was supposed to have healed.” Id. Adams responded that “it was not unheard of for a patient to experience pain at the site of a fracture after it had healed.” Id. Maday relied on Adams's response and delayed seeking further treatment until his pain worsened. Id.

         On February 7, 2017, Adams saw Maday for another chronic care visit. Docket 1 at ¶ 86. Maday complained of constant pain in his foot and Adams ordered x-rays of Maday's foot. Id. Maday's foot was x-rayed on February 10, 2017. Id. ¶ 87. Adams reviewed the x-rays with Maday on February 15, 2017. Id. ¶ 89. Adams diagnosed Maday with a stress fracture with a partial displacement. Id. No walking boot in Maday's size was available so Adams wrapped Maday's foot in a splint and provided crutches. Id. On February 20, 2017, Dr. Terrance Peterson, the outside podiatrist, placed Maday's foot in an aircast and recommended ultrasonic bone growth simulator to accelerate the healing process. Id. ¶ 91. Maday began receiving ultrasonic bone growth treatment on March 1, 2017. Id. ¶ 93.

         STANDARD OF REVIEW

         The court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). In conducting its de novo review, this court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).

         LEGAL STANDARD FOR 12(b)(6) MOTIONS

         A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss under Rule 12(b)(6), the court assumes that all facts in the complaint are true and construes any reasonable inferences from those facts in the light most favorable to the nonmoving party. Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). The factual content in the complaint must “ ‘allow[] the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.' ” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). As a pro se plaintiff, the court lowers the pleading standards liberally in favor of the complaint, however, the court “ ‘will not supply additional facts, nor will construct a legal theory for plaintiff that assumes facts that have not been pleaded.' ” Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (quoting Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).

         If the complaint does not contain these bare essentials, dismissal is appropriate. See Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' ” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Bell Atl. Corp., 550 U.S. at 556 (2007)). Federal pleading rules call for “a short and plain statement of the claim ...


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