United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER SCREENING AND DISMISSING
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Cristian Cabrera-Ascencio (Ascencio), an inmate at the South
Dakota State Penitentiary in Sioux Falls, filed a pro se
civil rights lawsuit under 42 U.S.C. § 1983. Ascencio
alleges that defendants were deliberately indifferent to his
serious medical needs, in violation of the Eighth
Amendment's prohibition on cruel and unusual punishment,
and that defendants retaliated against him for exercising his
constitutional right of access to the courts. This is
Ascencio's second pro se civil rights lawsuit filed under
42 U.S.C. § 1983 in this district. Cabrera-Asencio
v. Young, 2017 WL 1967359 (D.S.D. 2017). In accordance
with the screening procedure required by 28 U.S.C. §
1915A, the Court dismisses Ascencio's complaint.
Standard of Review
to 28 U.S.C. §§1915(e)(2) and 1915A, a district
court shall dismiss a prisoner's civil action against a
governmental entity or employee where the complaint
supporting such action "is frivolous, malicious, or
fails to state a claim upon which relief may be granted"
or "seeks monetary relief from a defendant who is immune
from such relief." Pro se complaints must be liberally
construed. Erickson v. Pardus, 551 U.S. 89, 94
(2007); see also Native Am. Council of Tribes v.
Solem, 691 F.2d 382 (8th Cir. 1982). Notwithstanding its
liberal construction, a pro se complaint may be dismissed as
frivolous "where it lacks an arguable basis either in
law or in fact"; that is, where the claim is "based
on an indisputably meritless legal theory" or where,
having "pierce[d] the veil of the complaint's
factual allegations," the court determines those facts
are "fantastic or delusional." Neitzke v.
Williams, 490 U.S. 319, 325, 327-28 (1989) (internal
citations omitted); see also Denton v. Hernandez,
504 U.S. 25, 33 (1992).
may dismiss a complaint for failure to state a claim where
"as a matter of law it is clear that no relief could be
granted under any set of facts that could be proved
consistent with the allegations." Neitzke, 490
U.S. at 327 (1989) (internal citations omitted). To survive
such dismissal, a complaint "must show that the
plaintiff' is entitled to relief, '... by
alleging' sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its
face.'" Torti v. Hoag, 868 F.3d 666, 671
(8th Cir. 2017) (quoting In re Pre-Filled Propane Tank
Antitrust Litig., 860 F.3d 1059, 1063 (8th Cir. 2017)
(en banc), Fed. R. Civ. P. 8(a)(2), and Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)). To determine
whether a claim is plausible on its face is a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."
Ashcroft v. Iqbal, 556 U.S. at 679 (2009). A
complaint must allege "more than labels and
conclusions." Torti, 868 F.3d at 671
(citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
Plaintiffs Claim of Deliberate Indifference to his Serious
states that, although he has received "physical therapy,
shots, knee sleeve, and medication" for pain in his knee
from the South Dakota State Penitentiary's Health
Services since "October or November of 2017" that,
because the Health Services has denied his repeat requests
for an MRI, "Health Services is furthering the injury by
delaying/prolonging the proper treatment for my injury,
keeping me in pain and suffering as it effects my sleep and
everyday activities." Doc.l at 4. Plaintiff further
states that "warden staff. . . refuse to step in ... or
order Health Services to diagnose by way of an MRI."
Id. at 5. Plaintiff states that, as a result,
"[t]his knee injury is constantly getting worse."
Id. Further, Plaintiff states that prison staff are
"falsely report[ing]" his "exercise in the
yard" to the Health Services staff. Doc. 4 at 7.
Eighth Amendment's prohibition on cruel and unusual
punishment prohibits deliberate indifference to
prisoners' serious medical needs. See, e.g., Estelle
v. Gamble, 429 U.S. 97 (1976). Such deliberate
indifference may be manifest "by the prison staff
intentionally denying or delaying access to medical care or
intentionally interfering with treatment once
prescribed." Dale v. Slyhuis, 313 Fed, Appx.
917, 918 (8th Cir. 2009). A "serious medical need"
is one that is "either obvious to the layperson or
supported by medical evidence, like a physician's
diagnosis." Aswegan v. Henry, 49 F.3d 461, 464
(8th Cir.1995) (internal citations omitted). A complaint that
"a physician has been negligent in diagnosing or
treating a medical condition," however, "does not
state a valid claim of medical mistreatment under the Eighth
Amendment." Estelle, 429 U.S. at 106; see
also McRaven v. Sanders, 577 F.3d 974, 982 (8th Cir.
2009) ("Negligent misdiagnosis does not create a
cognizable claim under § 1983."). Likewise, "a
mere disagreement with treatment decisions does not rise to
the level of a constitutional violation." Jolly v.
Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (citing
Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th
Cir.1995)). In sum, "[prisoners do not have a
constitutional right to any particular type of
treatment" as "nothing in the Eighth Amendment
prevents prison doctors from exercising their independent
medical judgment." Long v. Nix, 86 F.3d 761,
765 (8th Cir. 1996).
Plaintiffs allegations do not demonstrate deliberate
indifference to a serious medical need. Rather, Plaintiffs
medical history, as submitted by him, indicates that he was
seen by Health Services on 23 separate occasions over a
14-month period. Plaintiffs June 20, 2018 medical report
reveals that, although the Plaintiff had been "adamant
that he receive an MRI," that "[Health Services
staff] have not found definite physical exam findings or
history [of] complaints to suggest need for MPJ" and
that Plaintiff "states he just wants an MRI to know
exactly what is wrong with his knee." Doc. 4-9 at 1. The
same document indicates that Plaintiff "[h] ad x-rays of
the left knee October 11, 2017 which were negative."
Id. According to this medical report, Plaintiff
states that he engages in "cardio which includes up to
200 Burpee's [sic] and running 1-2 miles"
in addition to "squats and lunges." Id.
The visit dictation indicated that the care provider
"stress[ed] importance of activity restriction"
which Plaintiff "initially . . . refused to
accept." Id. at 3. Plaintiffs most recent
medical report indicates that defendant Michael Hanvey
requested "unit staff to monitor if patient is following
his activity restrictions." Id. at 1.
Plaintiffs prior medical records reflect a consistent pattern
of Health Services staff attempting to diagnose and treat
Plaintiffs chronic knee pain with steroid shots, physical
therapy, and oral medication.
medical records also note that he "was referred to have
an MRI of his left knee to further identify the patient
problems however this was denied by the utilization review
committee." Doc. 4-9 at 1. Plaintiffs PA, Michael
Hanvey, requested the MRI on May 22, 2018. Plaintiff
characterizes this outcome as the result of "much
argument with [PA] Hanvey." Doc. 4 at 6. However, prior
to ordering the MRI, Michael Hanvey had assessed that
Plaintiff "may need MRI if continued problems at
follow-up" but that this was "not supported on
clinical exam today." Doc. 4-9 at 17. After ordering the
MRI, Michael Hanvey again stated that "[Health Services
staff] have not found definite physical exam findings or
history [of] complaints to suggest need for MRI." Doc.
4-9 at 1.
his assertions of needing an MRI, Plaintiff has provided no
evidence that he was ever denied or delayed access to medical
care, or that prison staff interfered with his treatment.
Plaintiff alleges that prison staff falsely reported that he
engages in physical activities in violation of his treatment
regime; in support of this statement, he states that on
October 31, 2017, he "was accused of being in the rec
yard without my crutches" but that he "was only
doing upper body workouts." Doc. 4 at 3. Plaintiff also
generally states that prison staff have "report[ed] to
Health Services staff what I am doing like [sic]
workouts or running, in which I have not." It is unclear
whether this statement refers to the October 31, 2017
incident or to further incidents. However, the medical
records Plaintiff has provided indicate that he himself
admits to engaging in physical activity that is likely to
exacerbate his knee pain.
to order an MRI is a medical decision. As stated above, a
disagreement as to treatment decisions does not rise to a
constitutional violation. Plaintiff is not entitled "to
receive a particular treatment at his own behest."
Jensen v. Pennington County Police Dept., 2009 WL
1475037, *2 (D.S.D. 2009). Michael Hanvey's final
determination that Plaintiffs request for an MRI is
unwarranted does not constitute deliberate indifference to a
serious medical need.
Plaintiffs Claim of Retaliation for Exercising Right of
Access to the Courts
states that, since filing his prior claim, "I have had
my cell shook down numerous times for no reason at all"
and that the staff have stolen paperwork concerning "my
grievances on this medical problem" and his "first
set of § 1983 forms that [he] had filled out" in
"an attempt to keep me from filing against them."
Doc. 1 at 6. Plaintiff also indicates that staff had
"plac[ed] [him] in the hole." Id.
Plaintiff further states that prison staff have taken his
property and have not returned it. Doc. 4 at 7. Plaintiff