United States District Court, D. South Dakota, Southern Division
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE
Bruce Edgar Smith, is an inmate at the South Dakota State
Penitentiary (SDSP) in Sioux Falls. He filed a pro se civil
rights lawsuit under 42 U.S.C. § 1983. Docket 1. Pending
before the court is defendants motion for summary judgment
(Docket 152) and miscellaneous motions by Smith (Dockets 193,
194, 197, 209, 210, 211, 214). The court detailed the
procedural history of this case in its March 22, 2018. In
that same order, the court appraised the parties of the
courts thinking on defendants' motion for summary
judgment (Docket 152) and provided for sixty days of
discovery. For the reasons stated below, the court grants
defendants' motion for summary judgment and denies
court recites the facts relevant to the remaining claims in
the light most favorable to Smith because defendants move for
summary judgment. Where facts relevant to the remaining
claims are disputed, both parties' averments are
first surviving claim includes Smith's allegations that
Kurtis Brown, Jess Boysen, and Justin Kuku used excessive
force when attempting to subdue Smith on August 18, 2013.
Docket 66 at 21-22. According to Smith, "even though
[Brown] spaied [sic] me with the entire can [of pepper
spray], I just stood their [sic] crying, just looking at him,
not moving hardly at all." Docket 1 at 25. Smith alleged
that this "just made Sgt. Brown madder then" and
"[Brown] order[ed] the other two officers to tackal
[sic] me and take me down then." Id. It is
alleged that the officers "started running at [Smith]
hard" and hit Smith "full force driving [him] down
the.tier about 25 feet." Id.
incident began when Boysen and Brown "responded to an
Emergency Call light at cell 42 in West Hall" of the
SDSP. Dockets 163-1, 163-66 at 5-6. When Boysen "arrived
cell front," he observed Smith "bleeding profusely
from the nose and restraining the wrist of Inmate
Pinkal." Id. Smith informed Boysen that his
cellmate, Pinkal, had "hit him in the face."
Id. Boysen then "cuffed up Inmate Pinkel and
opened the cell door to remove him" so that he could be
"escorted to the East holding cell" pending an
investigation into the incident.
Brown arrived at the scene, he "found Inmate Smith
standing outside the cell with blood running down his
face." Dockets 153-116 ¶ 4, 153-3. Boysen advised
Brown that Smith "had been in a fight with his
cellmate." Docket 153-116 ¶ 4. Whenever there is an
altercation between inmates, the SDSP procedure dictates that
all inmates involved are escorted to and placed in the
special housing unit (SHU) pending an investigation into the
incident. Dockets 153-116 ¶ 7, 153-115 ¶ 5. Thus,
Brown informed Smith that he "needed to cuff up because
he had been in a fight and had to go to the SHU."
Dockets 153-116 ¶ 7, 153-3. Smith claims to have
responded by "calmly explaining to Brown that he had not
been in a fight with his cellmate but had been attacked by
him." Docket 66. Nevertheless, Smith did not to comply
with Brown's directive to "cuff up" and Brown
"called other officers to me cell." Dockets 153-3,
153-116 ¶ 9.
responded to the scene after Brown had already given Smith
multiple directives to "cuff up." Dockets 153-3,
153-115 ¶ 6. Smith testified in his criminal trial,
South Dakota v. Bruce Edgar Smith, Minnehaha County
Crim. File No. 13-7319, that Kuku also advised him that he
was "still going to have to go down to the holding
cell" so that they could "talk this out."
Docket 153-, 76 at 6. Smith claims that "Officer Kuku
and [Smith] turned and started walking down the tier when
Sgt. Kurtis Brown and Officer Jess Boysen was [sic] running
down the tier tword [sic] [Kuku and Smith]." Dockets
153-1, 153-3. Smith avers he "told Sgt. Brown that
Officer Kuku and I was heading down to the holding cell then
[Kuku] was going to take me to Health Services for medical
treatment." Docket 1 at 24. Then Smith contends he was
sprayed with an entire can of mace and tackled to the ground.
Docket 170 at 4.
aver that Smith was not "heading down to Health Services
for medical treatment[.]" Dockets 153-1, 153-3, 153-116
¶¶ 7-13, 153-115 ¶¶ 7-9. And defendants
claim there is no support in the record for Smith's
assertions that he was "calmly explaining to Brown that
he had not been in a fight" and mat, even after being
sprayed with mace, he "just stood their [sic] crying,
just looking at him [Brown], not moving hardly at all."
Smith acknowledges that, according to Brown's report, he
"started to square with me [Brown]" and
"started to posture as if he was ready to fight."
Dockets' 1 at 29, 31, 153-3, 153-6, 153-116 ¶ 9.
Brown's account of events is consistent with the
testimony Smith gave during his criminal trial. According
Smith's previous testimony, he "didn't think it
was fair that he had to go to IP or Investigative
Purposes." Docket 153-76 at 11. Smith testified that he
had therefore made up his mind that he was "going to do
anything [he] had to do to stop from having to go out to
IP." Id. at 12. Smith further stated that he
had been "told to cuff up several times" but he
"refused every single time." Id. at 10-11.
account of events is consistent with Smith's statement to
authorities during an interview on August 19, 2013. He told
authorities that he was "mad at the time and wasn't
going to IP" and that "if he was going down to IP,
he was going to go down hard." Docket 1-5 at 146. Smith
told authorities that "what happened next was his
fault." Docket 1-5 at 146. He stated mat this whole
incident could have been avoided if he had simply
"complied with these officers or . with Sgt. Brown's
directives." Docket 153-76 at 14.
to defendants, Smith then "started to square off'
with Brown. Dockets 153-116 ¶ 9, 153-3. Brown, Boysen,
and Kuku tried reasoning with Smith to cuff up. Dockets
153-116 ¶ 10, 153-115 ¶ 7, 153-6. Defendants allege
that Smith then "became upset and drew blood into his
mouth" which he then spit on Sgt. Brown. Docket 153-116
¶ 11, 153-3, 153-6. Smith fiercely denies ever spitting
on Sgt. Brown. Docket 170 at 6. In fact, Smith was found not
guilty, in the criminal trial, of having violated SDCL
22-18-20. Defendants rely on Smith's alleged guilty plea
before the Unit Disciplinary Committee (UDC) at the SDSP, of
having violated "H-5." Dockets 153-117 ¶8,
153-7. That prohibited act precludes an inmate from
"throwing or spitting any substance at or upon any
non-inmates or intentionally smearing any substance to come
into contact with any non-inmate." Docket 153-117 ¶
4. Smith maintains that he never pleaded guilty or received a
DHO hearing on the H-5 write up. Rather, Smith claims
Ditmenson denied him a hearing when he visited Smith in the
SHU on August 19, 2013. Docket 195 at 9.
the alleged spitting, Brown "gave him [Smith] one last
directive to cuff up." Dockets 153-116 ¶ 12, 153-3,
153-6. According to Boysen and Kuku, Smith "refused to
cuff up even after . the final warning to be cuffed up or
sprayed." Dockets 153-115 ¶ 8, 153-4, 153-5, 153-76
dispute Smith's claim that Boysen "start running at
[Smith] hard" and "hit [Smith] full force driving
[Smith] down the tier about 25 feet... driving [Smith] up
over [Smith's] head." Docket 1 at 25. Boysen avers
that he was positioned only one cell down from where Smith
was standing. Dockets 153-116 ¶ 14, 153-115 ¶ 10.
And the officers' accounts are consistent with statements
made by Smith in his Complaint which he concedes that the
other officers were standing only "about 5 feet
away." Docket 1 at 24. Defendants aver that Smith was
restrained in the same spot that he was standing and was not
"driven 25-32 feet down the tier. That's 5
cells." Dockets 153-116 ¶ 15, 153-115 ¶ 11. In
order for Smith to have been driven over 30 feet down the
tier, defendants claim Smith would have had to have gone
through a door/gate that separates Tier 2 South in half.
Dockets 153-116 ¶ 16, 153-115 ¶ 12. Defendants
contend it would have been difficult, if not impossible, for
Smith to have been driven "over his head" through
such a narrow opening.
the use of force, Smith claims that he was never
decontaminated, suffered a broken nose, and injured his
ankle. In ah Informational Report dated August 18, 2013,
Nurse Lonna Vink indicated that "nursing staff attempted
to perform vitals on Inmate Smith using BP machine but were
unsuccessful due to inmate's recent
decontamination." Dockets 153-115 ¶ 14, 153-11.
Smith claims that he had not yet been decontaminated, but
states he was decontaminated after visiting Health Services.
Docket 195 at 14.
alleges that his nose was "broken in two places" as
a result of the force used by the officers. Defendants aver
that there is no support in the record for any such
assertion. Smith, shortly after the incident in question, was
taken to Health Services to be examined. At that time, he
told medical staff that he "had been punched in the nose
by another individual." Dockets 155 ¶ 7, 153-11.
When later examined at Midwest Ear, Nose & Throat (ENT)
on September 5, 2013, Smith informed medical staff that he
"injured his nose on 8/18/13 during a fist fight with an
inmate." Dockets 155 ¶ 56, 153-9. Smith never
mentioned officers breaking his nose in their attempt to
restrain him. And during the criminal trial of State v.
Smith, Minnehaha County Crim. File No. 13-7319, when
asked "In fact, I think you testified that it was Mr.
Pinkal that broke your nose," Inmate Smith testified
"Yes." Docket 153-66 at 8. Smith testified,
"he [cellmate] broke my nose in two places." Docket
153-76 at 6.
his ankle, Smith claims he told Health Services "that my
ankle hurt badly and I couldn't hardly walk." Docket
1 at 8. Health Service records do not mention Smith
struggling to walk immediately following me incident. Dockets
153-11, 161 ¶ 8. Defendants aver that Smith is feigning
symptoms, because Smith displayed no limp or distress when he
came to the clinic. Dockets 153-25, 154 ¶ 28. Smith
claims he reported his ankle pain but Health Services ignored
his complaints. Docket 195 at 15-16. Parties agree that
.Smith reported an injury to his ankle on December 4, 2013,
during a chronic care visit. There, Smith complained that
"since this incident he has been having increased left
ankle pain." Docket 154 ¶¶ 9-12. Smith also
claims records are missing of an earlier report of pain to
Dr. Watts at Core Orthopedics on November 20, 2013.
Eighth Amendment claim against Lonna Vink, in connection with
the medical care that was afforded Smith following the
above-referenced incident, survived screening. Docket 66 at
16-17. Smith alleges that Vink was "the nurse in charge
that night I was brought to Health Services after I had been
mased [sic] and assaulted by the officers" and she
"said that there was nothing [sic] wroung [sic] with me,
so she sent me to the SHU, without any treatment for my
injuries." Docket 59 at 2.
alleges that she was not the person who "sent [Smith] to
the SHU without any treatment." Dockets 161 ¶ 6,
153-95. Vink only "walked into the room while the
assessment was being conducted and assisted therewith due to
the agitated state that Smith appeared to be in." Docket
161 ¶ 7. Vink further alleges that, at the time in
question, Smith's injuries did not appear to be serious.
As reflected in the Informational Report dated August 18,
2013, Smith was "experiencing a bloody nose" and
"a small cut was noted on the bridge of his nose."
Dockets 161 ¶ 8, 153-11. This report is consistent with
that in the "Segregation Admission Check List."
Dockets 161 ¶ 9, 153-95. As indicated in the "Check
List," Smith had a "1.5 cm laceration on the bridge
of his nose" and a "small amount of bleeding"
was noted. The "Check List" noted that Smith's
nose was said to be "somewhat deviated to the
right." Dockets 161 ¶ 10, 153-95. Smith, in his
Complaint, acknowledges that Health Services "sent me to
the SHU without knowing that my nose was broken." Docket
1 at 18.
aver that there was no reason for Health Services to believe
that Smith had sustained an injury ankle. There was no
mention whatsoever by Smith that he "couldn't hardly
walk." Docket 161 ¶ 11. Vink claims that the first
time that Smith complained of any injury to his ankle was on
December 4, 2013. Dockets 155 ¶ 9, 153-12. And the
aforementioned "Check List" further reflects mat
mere were no "contra indications to segregation"
nor were any "accommodations required." Dockets 161
¶ 12, 153-95. Smith's condition was said to be
"stable" when he was taken to the SHU. Dockets 161
¶ 12, 153-11.
Eighth Amendment claim against Keith Ditmenson, in connection
with the medical care that was afforded Smith following the
above-referenced incident, survived screening. Docket 66 at
16-17. Smith alleges that Ditmenson violated his rights when
he "tried to go to sick call but was turned down, and
every day after mat was turned down." Docket 1 at 8.
aver that Ditmenson never ignored Smith's sick calls for
the five days after the incident. Docket 159 ¶ 6.
Ditmanson maintains that if any inmate, while housed at the
SHU at the SDSP, believes that he is in need of medical
attention, he need only submit a Kite to unit staff
requesting to be seen by Health Services. Docket 159 ¶
7. That Kite is then simply forwarded to Health Services and
arrangements are thereafter made for the inmate to be
examined by medical staff.
aver that if Smith had submitted a Kite or Sick Call Request
asking to be seen by Health Services, arrangements would have
been made, pursuant to SDDOC Policy l.3.A.7, Transport and
Escort of Inmates, for him to have been seen by Health
Services. Docket 159 ¶ 8. Pursuant to said policy, staff
may also initiate the request to transport the inmate off the
unit for "medical reasons."
Health Service nurses visit the SHU at least four times per
day in order to conduct med pass and distribute prescribed
medications. Docket 158 ¶ 12. Smith, therefore, would
have had ample opportunity to speak with a nurse and submit a
Request for Sick Call. Smith claims that he asked nurses but
they did not initially help him. Docket 170 at 7. But, on the
night of August 27, 2013, Smith stated that he "got up
to see the medication nurse" and she "told me that
she would see to it that I would be brought up for sick call
today, and she did so." Docket 170 at 8.
review of Smith's medical records shows that Smith did
not submit a Sick Call Request until August 23, 2013. Docket
159 ¶ 13. The Sick Call was reviewed by Dr. Regier on
August 27, 2013 and he ordered nasal bone and facial bone
x-rays. Docket 159 ¶ 14. Those x-rays were completed on
August 28, 2013. Smith was seen by Dr. Regier on August 29,
2013, but Health Services was unable to pull those [x-rays]
up on the computer due to an apparent technical problem.
Dockets 159 ¶ 9, 153-10."
Carpenter - Nasal Injury
court also found that the Eighth Amendment claim against Dr.
Mary Carpenter, in connection with the medical care that was
afforded Smith following the above-referenced incident, also
survived screening. Docket 66 at 16-17. A review of Inmate
Smith's medical records reveals that Smith, on August 28,
2013, underwent a series of x-rays on his facial bones. Those
tests were "negative for orbital fractures" and the
orbits were said to "appear normal." Dockets 154
¶ 54, 153-39. Smith alleges that Dr. Regier said that
the technician incorrectly read these results. Docket 170 at
8. Nevertheless, there was a "suspicion of a minimally
displaced fracture of the nasal bridge." An
Authorization Request was thereafter submitted on August 29,
2013 for an "ENT consult ASAP." That request was
approved on the same date. Dockets 154 ¶¶ 55-56,
was seen at Midwest ENT in Sioux Falls, South Dakota on
September 5, 2013. Docket 1 at 11. Smith's nasal bridge
"appears deviated to the right" and his septum was
said to be "significantly deviated to his right
side." Dockets 154 ¶¶ 55-56, 153-9. According
to the report, "No significant tenderness noted."
But Smith alleges that "the first time that I was their
[sic] [ENT], they was going to rebrake [sic] my nose and
reset it. . . but it was turned down by the Health Services
medical, they wanted to think about it and resend me back
another day." Dockets 1 at 11, 170 at 8. Defendants
contend that a review of the report received from Midwest
ENT, dated September 5, 2013, contains no mention whatsoever
of "going to re-break [Smith's] nose and reset
it." Dockets 154 ¶ 73, 153-9.
alleges that he "had to have surgery because of this
delay." Defendants aver that there is absolutely no
support whatsoever in the record for Smith's assertion
that Dr. Todd, Midwest ENT, "feels it [surgery] is a
medical emergency." Dockets 154 ¶ 72, 153-9,
153-41. The' Midwest ENT reports stated that medical
personnel "does not feel it is a medical
emergency." Dockets 154 ¶ 72, 153-9.
"Documentation was sent back to the penitentiary stating
that this is not a medical emergency." Dockets 154
¶ 72, 153-9. It was the opinion of Dr. Todd, after
examining Srhith, that this was a "non-emergent
condition." Dockets 154 ¶ 72, 153-41. Subsequent
thereto, an Authorization Request was submitted by Dr. Regier
on September 25, 2013, for Smith to undergo a "nasal
bone fracture/reduction." That request, however, was
denied on September 25, 2013. As indicated therein, "ENT
physician states emergency treatment not needed."
Dockets 154 ¶ 74, 153-42.
was again later seen at Midwest ENT on December 20, 2013. He
was again diagnosed with a deviated septum. Dockets 155
¶ 76, 153-44. Staff at Midwest ENT indicated that Smith
was "most likely a candidate for surgical
intervention" and indicated in their report that
"our office will contact the prison regarding the matter
for following up." A "Physician Order" was
issued by Midwest ENT on January 7, 2014, informing Health
Services at the SDSP that "we need an appointment made
for Bruce [Plaintiff] to see Marc Ellwein, PA-C, at clinic
when Dr. Todd is here to discuss surgical options."
Dockets 154 ¶ 77, 153-45. An Authorization Request was
thus submitted on January 10, 2014, for a consult at Midwest
ENT. Dockets 154 ¶ 77, 153-46. That request was approved
on that same date.
seen at Midwest ENT on January 27, 2014, Smith "states
there has been no change in his symptoms." Dockets 154
¶ 78, 153-47. A physical examination was conducted and
showed "the fracture is unchanged." Id. It
was recommended "proceeding with a septoplasty,
turbinate reduction, and a concha bullosa excision as well as
a ORIS nasal bone fx reduction." Dockets 154 ¶ 79,
153-47. An Authorization Request was thereafter submitted by
Dr. Regier on January 31, 2014 for "nasal surgery."
That request was later denied, because Smith's nasal
issues were said to be a "chronic condition-not
emergent." Dockets 154 ¶ 80-81, 153-48. Dr.
Carpenter believed that there was simply no current need for
surgical intervention. Docket 154 ¶ 80. Nothing in the
report from Midwest ENT suggested that Smith's nasal
condition had deteriorated so as to require surgical
intervention. Dockets 154 ¶ 80, 153-47.
aver that there is nothing in Smith's medical records
which would suggest that his condition was exacerbated by any
delay in undergoing nasal surgery. Docket 154 ¶ 81.
Smith has, since February 2014, been seen by Health Services
at the SDSP on numerous occasions. Smith has not raised any
complaints to medical staff regarding his nose. Dockets 154
¶ 82, 153-21, 153-22, 153-23, 153-24, 153-51, 153-52,
153-53, 153-54, 153-55, 153-56, 153-57, 153-58, 153-59,
153-60, 153-61, 153-62, 153-63. Smith has submitted various
Kite Request Slips asking to be seen by Health Services, but
none of those "kites" mention anything about him
experiencing any difficulty breathing through his nose.
Docket 154 ¶ 83.
Smith was seen by Health Services on February 7, 2015,
complaining of shortness of breath, the record reflects that
his "02 saturation level was 93-98% on room air."
Dockets 154 ¶ 84, 153-24. Those saturation levels were
said to be more than adequate since levels above 90% are
considered satisfactory. Docket 154 ¶ 85. Defendants
aver that Smith's shortness of breath complaint is
unlikely due to his deviated septum. While a person may feel
congested as a result of a deviated septum, they do not
typically experience shortness of breath as a result thereof.
Docket 154 ¶ 85. As a result, Health Services
"encouraged deep breathing exercises" for Smith.
Dockets 154 ¶ 86, 153-24. The "deep breathing
exercises" recommended by medical staff are indicative
of an anxiety/panic attack consistent with Inmate Smith's
psychiatric history. Docket 154¶86.
seen by Health Services on September 13, 2016, Smith
complained that he was "unable to breathe from right
side of nose due to fracture and sinus congestion."
Dockets 154 ¶ 87, 153-84. When examined, Smith was again
diagnosed with "sinus congestion." Smith,
therefore, "reports that he would like a medication for
his ongoing sinus issues." Dockets 154 ¶ 87,
seen for a "routine physical exam" on January 10,
2017, Smith was asked by Health Services "if he had any
further medical concerns." Dockets 154 ¶ 88,
153-92. In a response thereto, Smith instructed medical staff
"don't ask me that question." A review of the
medical entry on the above date reflects that Smith
"offers no further medical concerns at this time."
Dockets 154 ¶ 88, 153-92.
seen by Health Services on April 7, 2017, Smith was
"argumentative and continually brings up lawsuit."
Dockets 154 ¶ 89, 153-93. He advised Health Services
that "I don't want to do this. We can do this in
Carpenter - Ankle Injury
court found that the Eighth Amendment claim against Dr. Mary
Carpenter, in connection with the medical care that was
afforded Smith following the above-referenced incident,
survived screening. Docket 66 at 16-17. Smith asserts that,
when seen by Health Services on August 26, 2013, he told
medical staff that "my left ankle hurt badly and I
couldn't hardly walk." Docket 1 at 8. The
Informational Report prepared by Vink on August 18, 2013,
does not mention Smith being unable to "hardly
walk." Dockets 161 ¶ll, 153-11. And the
"Segregation Admission Check List" prepared by
Health Services on August 18, 2013, does not mention that
Smith "couldn't hardly walk." Dockets 161
¶ 11, 153-95.
unsupported by defendants' records, Smith claims that he
told the "medication nurse" on the "night of
the 22nd day of August, 2013" that he could "hardly
walk." Docket 1 at 9. Records do reflect that, on August
23, 2013, Smith put in a Nurse Sick Call to "discuss
medical orders" but it "was not specific to an
injury."" Docket 158 ¶ 6. Smith alleges that
"Nurse Lesa," on the afternoon of August 22, 2013,
"looked at [Smith's] left ankle" and
"order x-rays the next day to be taken of [Smith's]
ankle." Docket 158 ¶ 7. Defendants aver Smith's
medical records do not support this assertion.
was seen for a "Nurse Sick Call" on August 26,
2013, but it was in connection with complaints of an injury
to his nose. Docket 158 ¶ 8. On August 27, 2013, Dr.
Regier reviewed the Nurse Sick Call and ordered nasal bone
and facial bone x-rays. Docket 158 ¶ 8. These x-rays
were completed on August 28, 2013. Dockets 158 ¶ 9,
153-20. When again seen by Health Services at the SDSP on
August 29, 2013, Smith was said to' be
"ambulatory." Dockets 154 ¶ 7, 153-10. Smith
did not mention having problems or difficulty with his left
allege that the first time Smith complained of any problem
with regards to his left ankle was on or about December 4,
2013, when seen by Health Services for a "Chronic Care
Visit." At that time, he "reports since this
incident [8/18/13] he has been having increased ankle
pain." Dockets 154 ¶ 9, 153-12. Smith complained
that he "has crepitus in his ankle" and indicated
that he "feels like it is broken." Dockets 154
¶ 10, 153-12. Smith, however, "denies specific
ankle instability" and was said by medical staff to be
"more commenting on the fact that he has crepitus."
A physical examination revealed that "No noted swelling
or ecchymosis [bruising] is seen around the left ankle"
and "No point tenderness is noted." Dockets 154
¶ 11, 153-12. The medical records reflect that
"[n]o joint laxity, in the left ankle is noted."
Health Services elected to "additionally order a left
ankle x-ray as well as a left ankle sleeve x 1 year."
Dockets 154 ¶ 12, 153-12. Arrangements were made whereby
Smith underwent said x-rays on or about December 5, 2013.
results of the x-rays taken of Smith's ankle revealed
that there was a "nondisplaced, sagitally-oriented
fracture involving the base of the medial malleolus."
Dockets 154 ¶ 13, 153-13. There was, however, "[n]o
evidence for a distal fibular fracture" and "[n]o
posterior malleolus fracture." According to the report,
"[n]o other fractures are identified." Dockets 154
¶ 13, 153-13. Subsequent thereto, arrangements were made
whereby Inmate Smith was examined at Core Orthopedics in
Sioux Falls, South Dakota, on or about December 18, 2013.
When seen on that date, Smith reported "[n]o specific
instability episodes." Dockets 154 ¶ 14, 153-14.
physically examining Smith's ankle, Dr. David Watts noted
"[n]o obvious instability on inversion and anterior
drawer stressing." Dockets 154 ¶ 15, 153-14- Smith
was said to have "[f]ull ankle hindfoot range of
motion." Smith was diagnosed with a "left ankle
sprain." Dockets 154 ¶ 16, 153-15. It was
nonetheless recommended that Smith undergo "MRI of left
ankle to evaluate for OCD/fracture." On January 21,
2014, Smith underwent an MRI which revealed "[n]o acute
fractures at the site of focal tenderness." Dockets 154
¶ 17, 153-16. He was again diagnosed with what was said
to be a "[t]ype 1 ligamentous sprain."
was examined again at Core Orthopedics on January 29, 2014.
Unlike his previous examinations, Smith was said to have
"obvious instability with inversion stressing compared
to the opposite side." Dockets 154 ¶ 18, 153-17.
According to the report, the MRI demonstrates an area along
the lateral cartilage with a chondral defect. Id.
Although Smith was diagnosed with "[c]artilage loss at
the lateral aspect of the talar dome," the record
reflects that said "cartilage loss at the lateral aspect
of the talar dome likely related to degenerative
arthritis." Dockets 154 ¶ 20, 153-16. At that time,
it was recommended that Smith undergo a scope of his left
ankle and that he be "scheduled for a modified
Brostrom." Dockets 154 ¶2l, 153-17, 153-18. An
Authorization Request was thus submitted on February 4, 2014
for Smith to undergo left ankle surgery. Dockets 154 ¶
response thereto, Dr. Mary Carpenter contacted Core
Orthopedics and "engaged in a discussion with Orthopod
who stated mat not fixing the ankle instability immediately
would not change the long term outcome." Docket 154
¶ 22. The Authorization Request for left ankle surgery
was thus denied since it was a "chronic
condition-nonemergent." Dockets 154 ¶ 23, 153-19.
In lieu of surgery, the decision was made to pursue, for the
time being, a more conservative course of treatment. Smith
was provided with a "lace up ankle brace." Dockets
154 ¶ 24, 153-21. Smith was informed that he "must
wear brace as a conservative measure at this time" and
that Health Services "will monitor patient."
Dockets 154 ¶ 25, 153-21. .
when seen by Health Services on June 4, 2014, for another
Chronic Care Visit, was "currently in a lace up ankle
brace which patient does report helps with his ankle
stability." Dockets 154 ¶ 26, 153-25. Smith was
"additionally requesting to use a cane to better help
his balance due to his ankle instability." Health
Services thus elected to "order a cane use x 1
year." Dockets 154 ¶ 27, 153-25.
allege that Smith may have been feigning his symptoms with
regard to the alleged instability in his left ankle. Smith
denies ever feigning symptoms. Docket 170 at 9. When .
leaving Health Services on June 4, 2014, Smith was
"noted to ambulate out of the room with a left sided
limp." Dockets 154 ¶ 28, 153-25. But the record
reflects that "of note is that nursing evaluated
patient's gait when he came to clinic and was not noted
to have a limp or be in any distress." Dockets 154
¶ 28, 153-25. Smith's medical records also contain a
notation, dated June 4, 2014, that when "patient arrived
at clinic for CCC appointment," nursing staff
"observed gait. Patient gait steady and no limp
noted." Dockets 155 ¶ 29, 153-21. According to
nursing staff, "patient does not appear to be in any
pain or distress." The record reflects that
"patient continues to use stairs to go to chapel and
Health Services without difficulty." Dockets 154 ¶
37, i 153-21. It was "verified with the Health Services
officer" that Smith also "accesses Health Services
via stairs and has not requested an escort to/from Health
Services on the elevator." Smith, when seen by Health
Services on August 27, 2014, was again said to "ambulate
in the room with a normal gait and without difficulty."
Dockets 154 ¶ 30, 153-26. Defendants allege that Smith,
despite having asked for and received a "no stair
medical order" from Health Services, was observed on
September 11, 2014 "delivering commissary on Tier
4." Dockets 154 ¶ 39, 153-23.
seen, however, by Health Services on December 3, 2014, Smith
complained that he was "attempting to continue with
daily activities but is having increasing difficulty
regarding his left ankle." Dockets 154 ¶ 40, Docket
153-29. According to Smith, he "continues to have some
instability without extra support items such as a cane"
and allegedly "recently started using a wheelchair for
long distances." Id. In response to Smith's
complaints, Health Services elected to "resubmit a
request for patient's left ankle surgery." Dockets
154 ¶ 41, 153-29. An Authorization Request was thus
submitted on December 4, 2014 for "left ankle
surgery." Dockets 154 ¶ 41, 153-30. That request
was approved by the Medical Director on December 5, 2014.
Dockets 154 ¶ 42, 153-30. Smith was therefore seen at
Core Orthopedics on December 23, 2014 in regards to
"other treatment options." Dockets 154 ¶ 42,
evaluation, Smith was said to have "obvious instability
with stressing of the ankle comparatively to his opposite
side." The recommendation was to plan on doing an ankle
scope and possible microfracture of an OCD lesion, as well as
a Brostom's repair." Dockets 154 ¶ 43, 153-27,
153-28. Smith thereafter underwent a "pre op
physical" on or about January 26, 2015. Dockets 154
¶ 44, 153-34, 153-55. The surgical procedure itself was
performed on February 4, 2015. Dockets 154 ¶ 45, 153-35.
Smith's ankle, following said procedure, was said to have
"full range of motion with no further instability
noted." Smith was specifically instructed to be
"nonweight bearing for a period of 6 weeks."
Dockets 154 ¶ 46, 153-35. When seen for a "follow
up" at Core Orthopedics on February 18, 2015, Smith was
"placed in a short leg cast" and was again
instructed to "remain strict non-weight bearing."
Dockets 154 ¶ 46, 153-36. Smith, however, elected not to
follow those directives and admitted to Health Services on
February 14, 2015 that he had been "putting weight on
left lower extremity." Dockets 154 ¶ 47, 153-24. He
was again "educated that he is non-weight bearing to his
left lower extremity."
seen at Core Orthopedics on May 1, 2015, a physical
examination of Smith's left ankle revealed "No
obvious instability." Dockets 154 ¶ 49, 153-38. The
various x-rays taken of the ankle were said to be
"normal." When later seen at CORE Orthopedics on
July 1, 2015, Smith, for the first time, complained that
"he's been falling quite a bit because his ankle has
been giving out and he feels that he needs ankle
support." Dockets 154 ¶ 51, 153-79. In response
thereto, Dr. Watts, CORE Orthopedics, indicated that "we
will write him an order for a ...