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Cabrera-Asencio v. Young

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

October 26, 2018

CRISTIAN CABRERA-ASCENCIO, Plaintiff,
v.
DARIN YOUNG, WARDEN AT SOUTH DAKOTA STATE PENITENTIARY, INDIVIDUAL AND OFFICIAL CAPACITY; DR. MARY CARPENTER, CONTRACT MEDICAL PROVIDER AT SOUTH DAKOTA STATE PENITENTIARY, INDIVIDUAL AND OFFICIAL CAPACITY; AND PA MICHAEL HANVEY, PHYSICIAN ASSISTANT AT . SDSDP/JAMESON, INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.

          OPINION AND ORDER SCREENING AND DISMISSING CASE

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE

         Plaintiff, 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.

         I. Standard of Review

         Pursuant 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).

         A court 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)).

         II. Plaintiffs Claim of Deliberate Indifference to his Serious Medical Needs

         Plaintiff 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.

         The 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).

         Here, 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.

         Plaintiffs 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.

         Besides 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.

         Whether 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.

         III. Plaintiffs Claim of Retaliation for Exercising Right of Access to the Courts

         Plaintiff 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 ...


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