United States District Court, D. South Dakota, Southern Division
STANLEY J. MADAY, Plaintiff,
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; 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, Individual And Official Capacity; 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; and UNKNOWN WISCONSIN DOC EMPLOYEES, Individual And Official Capacities; Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED
AND GRANTING IN PART AND DENYING IN PART DEFENDANTS'
MOTIONS FOR SUMMARY JUDGMENT
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Stanley J. Maday, a Wisconsin prisoner in custody at Mike
Durfee State Prison, filed this lawsuit under 42 U.S.C.
§ 1983 and Title II of the Americans with Disabilities
Act (ADA). Dockets 1, 94. The South Dakota and Wisconsin
defendants now move for summary judgment. Dockets 125, 145.
Maday resists the motions. Docket 173. The matter was
referred for a report and recommendation to Magistrate Judge
Veronica L. Duffy under 28 U.S.C. § 636(b)(1)(B).
Magistrate Judge Duffy recommended granting summary judgment
or dismissal of all claims, but one. Docket 188. For the
following reasons, the court adopts the report and
recommendation as modified below. The court grants in part
and denies in part defendants' motions for summary
light most favorable to Maday, the nonmoving party, the facts
are as follows:
is a Wisconsin inmate. Docket 1 ¶ 4. Maday is currently
held in custody in South Dakota. Id. Maday arrived
in South Dakota on August 12, 2013. Id. ¶ 40.
Initially, Maday was housed at the South Dakota State
Penitentiary (SDSP) in Sioux Falls, South Dakota, at the
Jameson Unit. Id. Later, he was moved to Mike Durfee
State Prison (MDSP) in Springfield, South Dakota.
Id. ¶ 41.
Properly Fitting Shoes and the Comfort Items Policy
in the Jameson Unit, Maday received a pair of canvas shoes.
Id. ¶ 40. Maday found the shoes to be too
narrow for his feet. Id. Maday alleges that the
shoes immediately began to cause blisters on his feet.
Id. These blisters turned into painful calluses.
Id. Maday requested wider shoes from the Jameson
laundry unit, but his request was denied. Id.
his arrival to MDSP, Maday sent a kite request to laundry for
wide shoes. Id. ¶ 41. A few days later, the
laundry supervisor, defendant Muriel Namminga, measured
Maday's feet and issued him wide leather shoes with
velcro closures. Id. Maday alleges that he continued
to develop blisters and calluses on his feet because the wide
leather shoes could not be properly secured on his feet.
Id. ¶ 44. By November 16, 2014, Maday was on
his third pair of the issued wide leather shoes. Id.
¶ 50. Maday alleges that he received these replacements
because of hygiene issues. Docket 192 at 3.
observed other inmates wearing New Balance cross training
shoes. Docket 1 ¶ 42. When Maday inquired about the
shoes, the inmates allegedly informed Maday that they were
for diabetic inmates or inmates with foot problems.
Id. ¶ 42. At a sick call with medical staff on
September 5, 2013, Maday complained about the calluses on his
feet and, for the first time, requested a pair of New Balance
shoes. Id. ¶ 45. Maday alleges that he was told
by the unknown nurse that the unit staff had to issue New
Balance shoes. Id. When Maday asked unit staff for
New Balance shoes, defendants Tammy DeJong and Travis
Tjeerdsma told Maday he needed to be approved by medical.
Id. ¶ 46, 55. Maday also asked unit manager,
defendant Josh Klimek, about the shoes; Klimek said it was
medical's decision. Id. ¶ 48. Maday made
several requests to medical and unit staff for New Balance
shoes. Id. ¶¶ 42, 45-49, 53-56.
Dr. Mary Carpenter, the medical director at MDSP, issued a
memorandum to inmates and staff on February 24, 2014. Docket
173-1 at 26. The memorandum pertained to inmates'
requests for “non-medical issues such as . . . requests
for special shoes[.]” Id. The memorandum
stated that “Health Services will not address requests
for comfort items or custodial issues” because
“[t]hese comfort items are not necessary for good
medical care.” Id.
claims that the lack of properly fitting shoes caused him to
develop painful blisters and calluses. Docket 1 ¶ 44.
Maday alleges that he went to the medical unit on several
dates and complained about his painful blisters and calluses.
The first sick call for this issue was on September 5, 2014.
Id. ¶ 45. Maday continued to make complaints
about the calluses and blisters at various sick calls on an
unknown date, November 16, 19, 21, and 24, 2014. Id.
¶¶ 47, 50-53. At the November 19th visit,
Maday complained about the calluses and the inflammation and
swelling of his right big toe. Id. ¶ 51. On
December 3, 2014, Maday went to a sick call to complain about
his calluses and an open sore near a callus on his big right
toe. Id. ¶ 54. Maday's sore had drainage
and swelling. Id. Medical staff told Maday to
monitor the site. Id. On December 17, 2014, Maday
returned to medical to complain about the worsening sore.
Id. ¶ 56.
December 18, 2014, Maday had a follow-up visit with medical
for his injured toe. Id. ¶ 57. The callus was
cut down by medical staff. Id. This revealed an
ulceration, which was cleaned and covered with antibiotics.
Id. At the December 18th sick call, defendants
Michael Hanvey and Misty Tolsma-Hanvey, medical staff at
MDSP, emailed Klimek and told Klimek that Maday would benefit
from better fitting shoes. Id. That same day, Klimek
contacted the laundry unit and told them to issue New Balance
shoes to Maday. Id. ¶ 58. Maday went to
laundry, and his feet were measured. Id. Maday
received his New Balance shoes in January of 2015.
Id.; Docket 174 at 4. Maday stated that since he
received his New Balance shoes, he has no new blisters or
calluses, and his old calluses are going away. Docket 1
Plantar Fasciitis and 2015 Foot Fracture
spring of 2015, Maday began to experience pain in his right
heel. Id. ¶ 61. Maday alleges that he first
complained of this severe foot pain at a sick call on July
27, 2015, but medical staff did not address it. Id.
¶ 62. At his chronic care appointment on July 28, 2015,
Maday told Hanvey about his pain and stated that it was
identical to the pain he experienced with his previous
plantar fasciitis. Id. ¶ 63. Maday alleges that
Hanvey said there was nothing he could do for the heel pain.
Id.; Docket 174 at 6. On September 11, 2015, Maday
complained again about the heel pain, and a follow-up
appointment was scheduled. Docket 1 ¶ 64. At his October
14, 2015 follow-up appointment, Physician Assistant (PA) Brad
Adams and Maday discussed the pain in Maday's heel.
Id. ¶ 65. PA Adams gave Maday arch supports for
the heel pain. Id. Maday's heel was also
x-rayed, and it was determined that there was no bone spur.
Id. ¶¶ 65-66.
November 4, 2015, at a sick call, Maday complained to
defendant Lindsey Rabbass, a nurse, about the extreme pain in
a different part of his foot. Docket 174 at 7. Maday
requested crutches, which medical staff denied because
crutches were only issued with a doctor's order.
Id. at 8. Medical staff issued a medical lay-in tray
and Tylenol. Id.; Docket 1 ¶ 68. On November 5,
2015, defendant Robin Myer, a nurse, processed Maday's
sick call. Docket 1 ¶ 69. Like the November 4th
appointment, there was no physical examination, no crutches
issued, and no x-rays conducted. Id. The medical
lay-in tray was extended and Maday still needed to report for
Tylenol. Id. On November 6, 2015, Maday made another
sick call for the pain in his foot. Docket 174 at 9. At this
sick call, his foot was examined. Id. Defendant
Candice Fejfar, a nurse, instructed Maday to rest his foot
and issued Tylenol four times a day. Id. at 10. On
November 9, 2015, and the morning of November 10, 2015, Maday
attempted two sick calls, but was not seen by anyone.
Id. at 11. On the afternoon of November 10,
defendant Dr. Stephan Schroeder saw Maday and ordered an
x-ray of his foot. Id. Dr. Schroeder advised Maday
to avoid weight bearing activities, but did not issue
crutches. Id. at 12. Maday's foot was x-rayed
that evening on-site at MDSP. Id. at 11-12. On
November 11, 2014, Dr. Daniel Fritz reviewed the x-rays; his
impression of the x-ray was an acute nondisplaced fourth
metatarsal shaft fracture. Docket 1 ¶ 76; Docket 126-54.
On November 13, 2015, Maday had a follow-up appointment where
medical staff informed him that he had an “acute
nondisplaced 4th metatarsal shaft fracture.” Docket 174
at 12-13. He was given a cam/walker boot, issued crutches and
a wheelchair, medical lay-in trays, and Tylenol. Id.
Removal of Arch Supports and 2016 Foot Fracture
March 26, 2016, defendant Dennis Cropper, a correctional
officer, conducted a search of Maday's room. Docket 174
at 59. During the search, Cropper confiscated Maday's
arch support inserts. Id. Maday informed Cropper
that he had a medical order for the arch supports, but
Cropper did not return the arch supports. Id. at
59-60. A week later, Maday asked Klimek about his arch
supports. Docket 1 ¶ 81. Klimek told Maday that he would
look into it. Id. After another week went by, Maday
alleges that he asked Klimek again about the arch supports.
Id. Klimek responded that he was waiting to hear
back from medical. Id. Maday received replacement
arch supports on April 7, 2016. Docket 94 at 4; Docket 174 at
60. Maday alleges that after this incident, he developed a
new limp and inflamed plantar fasciitis. Docket 174 at 60.
27, 2016, Maday told a nurse about his plantar fasciitis pain
and requested a medical lay-in tray to stay off his feet per
instructions. Id. At a sick call on July 5, 2016,
Maday complained about the constant ache at the site of his
previous fracture. Docket 1 ¶ 82. Maday received a
handout with exercises. Id. On August 9, 2016, Maday
told PA Adams that he was experiencing pain at the place of
his old fracture. Docket 174 at 54, 60. Maday alleges that PA
Adams told Maday that this was “not unheard of.”
Docket 1 ¶ 83. On September 7, 2016, Maday had a sick
call with defendant Dayna Klawitter, a nurse. Docket 174 at
62. Again, Maday complained that his current pain was like
his previous stress fracture pain. Id. Klawitter
gave Maday a handout with stretching exercises for his ankle.
Id.; Docket 173-1 at 62. At two follow-up
appointments on September 12 and 16, 2016, Maday's foot
pain was not addressed. Docket 174 at 54. Maday continued to
perform the stretching exercises. Id. At a chronic
care appointment on February 7, 2017, Maday complained about
the constant pain at the site of his previous fracture.
Docket 1 ¶ 86. PA Adams addressed the increase foot
pain. Docket 174 at 54. On February 10, 2017, medical staff
performed an x-ray on Maday's foot. Docket 1 ¶ 87.
Maday's x-rays exhibited an acute stress fracture, which
was partially healed. Docket 174 at 63; Docket 173-1 at
69-70. Maday received a walking boot on February 13, 2017.
Docket 1 ¶ 88.
February 15, 2017, Maday had a follow-up appointment with PA
Adams to review the x-rays. Id. ¶ 89. PA
Adams's assessment was a “[d]isp fx of fourth
metatarsal bone[.]” Docket 126-61 at 2. At this
appointment, Maday's foot was placed in a splint with two
ace wraps, and Maday was issued crutches. Docket 1 ¶ 89.
Later in the day, Maday removed the splint and ace wraps from
his foot and refused to wear it. Id. ¶ 90;
Docket 174 at 65. Maday told a nurse that he was not flexible
enough to put the splint on by himself. Docket 174 at 65.
Arrangements were made for Maday to report to the medical
unit to have the splint put on. Id. at 65-66. Maday
signed a release to discontinue the splint, but he remained
compliant with his crutches and wheelchair use. Id.
February 20, 2017, Maday was referred to Dr. Terence
Pederson. Docket 1 ¶ 91; Docket 174 at 63-64. Dr.
Pederson provided treatment for Maday's foot. Docket 1
November 24, 2014, Maday was issued a medical order for
diabetic socks. Id. ¶ 127. Maday went to the
laundry unit and received diabetic socks. Docket 140 ¶
64; Docket 173-1 at 3-4; Docket 174 at 41. Maday alleges that
the diabetic socks are too small because they are
“one-size fit all” and 100% cotton so they shrink
in the wash. Docket 1 ¶ 127. Maday alleges that the
socks do not fit properly because the elastic is too tight
and left painful rings around his lower legs. Docket 174 at
41. Maday must fold the elastic top down to eliminate the
rings. Id. Maday notes that the socks are for feet
size 6-12, and Maday's feet are greater than a size 12.
Id. at 43.
alleges that he made several complaints to defendants about
the poorly fitting socks. Docket 94 at 4-5; Docket 174 at
41-44; see also Docket 126-29; Docket 126-31. Maday
alleged that he complained to Namminga, and in response,
Namminga stated that she believed these were the best
diabetic socks Wal-Mart had. Docket 1 ¶ 127; Docket 174
learned that other inmates were issued Dr. Comfort diabetic
socks directly from the medical unit. Docket 174 at 41, 44;
Docket 173-1 at 1- 2. Maday wanted Dr. Comfort socks because
they were available in larger sizes. Docket 174 at 44. On
June 17, 2016, Maday requested Dr. Comfort socks because his
shoes were worn out and they did not provide support or
cushioning. Docket 94 at 4; see also Docket 174 at
44, 46. Maday was told that only laundry issued socks were
available, but was offered Ted hose stockings as an
alternative. Docket 94 at4.
chronic care appointment on August 9, 2016, PA Adams wrote in
his medical notes that he “evaluated the patient's
socks and they do appear to fit adequately.” Docket
126-45 at 2. PA Adams noted that he and Maday discussed the
reason why his socks did not fit properly was due to the
swelling from Maday's dependent edema, not because of
ill-fitting socks. Id. On October 19, 2016, Maday
filed an Informal Resolution Request (IRR) requesting larger
diabetic socks. Docket 174 at 43. In his IRR, Maday stated
that the socks issued in September were smaller than the
usual socks Maday recieved. Id.
Sports Illustrated Swimsuit Edition Magazines
alleges that defendants Nicole St. Pierre and Mike
Grosshuesch violated his First Amendment rights when they
rejected his February 2015 and 2016 Sports Illustrated
Swimsuit Edition Magazines. Docket 1 ¶¶ 96-97. In
February of 2015, mailroom supervisor, St. Pierre, denied
Maday's Sports Illustrated Swimsuit Edition Magazine
because it contained “nudity.” Id.
¶ 96. Maday exhausted his administrative remedies in
attempts to acquire this magazine. Docket 140 ¶¶
February 2016 Sports Illustrated Swimsuit Edition Magazine
was denied by mailroom supervisor, Grosshuesch, due to
“sexually explicit” material. Docket 1 ¶ 97.
Maday filed an IRR form, which was denied by St. Pierre.
Docket 174 at 79. When Maday requested a Request for
Administrative Remedy (AR) form after his IRR was denied,
DeJong refused to provide him a form. Id. at 81;
Docket 172 ¶ 193.
South Dakota Department of Corrections (DOC) prohibits the
purchase and possession of pornographic materials under
policy 1.3.C.8. Docket 126-100. Pornography includes
materials that feature nudity or sexually-explicit conduct.
Id. Defendants allege that both magazines contained
nudity or sexually explicit material. Docket 140 ¶¶
195, 198. Maday disputes the content of the magazines and
alleges that there is no nudity within the magazines. Docket
174 at 13-16; Docket 1 ¶ 98.
alleges that he was denied delivery of two hardcover books.
Docket 174 at 83. On November 21, 2016, Maday received a
notice from property supervisor, defendant Lori Stratman,
that a hardcover book sent to Maday was denied per policy.
Docket 1 ¶ 99. Maday alleges that the book was sent by a
friend through a publisher/distributor. Id. Maday
exhausted his administrative remedies in his attempts to
receive the book. Docket 140 ¶¶ 206-11. On March 6,
2018, Stratman denied delivery of a hardcover book sent to
Maday by his son through a publisher. Docket 94 at 8.
policy 2.3.C.4, “Hard cover books for individual or
group use are not allowed. All books, regardless of purpose
or subject matter, must be soft cover.
hardcover books that are already inside the institution may
remain, but no new hardcover books will be allowed.”
Docket 126-103. Inmates are allowed access to hardcover books
in the library where they can check them out and bring them
to their rooms. Docket 1 ¶ 99; Docket 128 ¶ 15.
Additionally, inmates can have hardcover Bibles or Qurans in
their possession. Docket 1 ¶ 99.
South Dakota DOC has a policy that limits the incoming
correspondence inmates can receive. Docket 140 ¶ 217.
Policy 1.5.D.3 requires general correspondence to be on plain
white copy or lined white paper. Id. Postcards or
cards are not permitted. Id. Additionally, the
policy requires incoming envelopes to be white in color, may
only include an affixed canceled stamp or postage label, and
the return address must be handwritten or ink-stamped.
Id. ¶ 221. The policy prohibits padded
envelopes, stickers, tape, self-adhesive labels, and sealing
wax. Id. ¶ 222.
March 13, 2018, Maday received a mailroom rejection notice
that a letter from Dr. Andrea Nelson containing a money order
was rejected. Docket 174 at 86-87. Grosshuesch rejected the
letter because it contained colored paper, which violated
policy 1.5.D.3. Id. at 87. Maday alleges that he was
not given the option to instruct defendants on how to handle
the money order, but he wrote an instruction on a kite
request form that the money order should be deposited in his
account. Id. at 86; Docket 126-106.
April 4, 2018, a letter sent from Maday's brother was
refused and returned to sender by Grosshuesch. Docket 94 at
8. Maday alleges that he never received a mailroom rejection
notice. Id. at 11. In response to Maday's IRR,
Tiffany Voigt stated that the letter was rejected because
“when it is apparent that the correspondence contains
contraband without opening the letter, it will be
rejected.” Id. at 8, 11; Docket 174 at 88.
Maday admits that the envelope had a return address label
affixed to it, but still disputes whether his letter should
have been rejected. Docket 174 at 88, 90. Maday disputes the
validity of this policy and whether it was in effect when his
brother's letter was rejected. Id. at 88; Docket
94 at 8. Maday exhausted his administrative remedies. Docket
140 ¶¶ 240-26.
Access to the Courts
alleges that defendants are impeding his access to the
courts. Docket 1 ¶ 141; Docket 94 at 18. While
Maday's petition for post-conviction relief was under
review by Wisconsin state courts, Maday did not have access
to Wisconsin law. Docket 174 at 92. On April 5, 2017, the
Wisconsin Supreme Court issued a ruling on Maday's
petition for post-conviction relief. Docket 1 ¶ 100.
Maday alleges that he wanted to start working on a collateral
attack of his conviction. Id. When Maday attempted
to go to the law library at MDSP, he realized that there was
no Wisconsin law available to him. Id. In June of
2017, inmates were given electronic tablets with an
application for LexisNexis. Id. Only South Dakota
law and federal law were available on the tablets.
Id. Maday asked staff how he could get access to
Wisconsin law on the tablets. Id. Maday filed a
grievance, but it was denied. Id.
also attempted to contact the Wisconsin DOC to obtain access
to Wisconsin law. Id. ¶ 101. Maday wrote a
letter to defendant Jon E. Litscher, the Secretary of
Wisconsin's DOC. Id. Maday received a response
letter from defendant Katharine A. Arris, assistant legal
counsel for the Wisconsin DOC. Id. In the letter,
Arris stated that they could not provide any assistance to
Maday. Id. Additionally, Maday received a denial
letter from defendant Thomas P. Maloney, the Library and
Education Technology Coordinator of Wisconsin's DOC.
alleges that Grosshuesch denied him legal mail. Maday sent a
letter to the State Bar of Wisconsin. Id. ¶
102. Maday's letter was denied because Grosshuesch stated
that the mail policy did not allow mail to be sent to any
state bar. Id. Maday disputes whether that is what
the policy states. Id. Additionally, Maday attempted
to send a letter to Attorney Deanne M. Koll, but it was
denied because the address included “Care of State Bar
of Wisconsin.” Id. Maday states that the
letter was specifically addressed to Deanne Koll. Docket 174
at 19-20; Docket 173-1 at 24. Maday disputes whether the
policy prohibits this letter. Docket 174 at 19-20; Docket 1
October 1, 2017, the South Dakota DOC terminated the contract
for a staff attorney for inmates. Docket 94 at 9. Inmates
were told that they had access to LexisNexis through their
electronic tablets. Id. Defendants also closed the
law library and removed all legal resources from the library.
Id. at 18. Ultimately, Maday received access to
Wisconsin law on April 3, 2018. Docket 174 at 93.
Grievances and Placement in the Security Housing
alleges that he has filed two complaints with possible Prison
Rape Eliminate Act (PREA) implications and received
retaliation from defendants for filing these complaints.
Id. at 21-23. The first complaint alleged that
defendant Cropper was groping and “ogling”
Maday's roommate. Id. at 21. The roommate did
not wish to file the complaint, so Maday filed the complaint
with the Division of Criminal Investigation (DCI).
Id. at 21-22. DCI referred the complaint back to the
prison, and Maday alleges that no investigation was
conducted. Id. at 22. After this first complaint,
Klimek asked Maday if there were any threats of imminent
danger. Id. Maday said no and was not placed in the
Security Housing Unit (SHU) for protection. Id.
January 9, 2017, Maday filed a second grievance with PREA
implications “concerning predatory homosexual
behaviors” in the bathroom. Docket 1 ¶ 115; Docket
126-113; Docket 174 at 22. Maday had an issue with the lack
of doors on the bathroom stalls. Docket 126-113; Docket 174
at 22. Maday alleges that defendant Jennifer Stanwick-Klimek
implemented this policy. Docket 174 at 22. Maday raised his
concerned about the bathroom doors with Klimek. Id.
at 23. Klimek ordered that Maday be placed in the SHU. Docket
1 ¶ 115; Docket 174 at 23. Maday disputes whether
defendants placed him in the SHU for protection. Docket 174
April 27, 2018, Sergeant Tycz led Maday to the SHU and told
Maday that Klimek told Tycz to put Maday in the SHU. Docket
94 at 11-12. Tycz placed Maday in a holding cell by the
entrance of the SHU. Docket 172 ¶ 265. Once Maday was
placed in the holding cell, Tycz spoke with Lieutenant Larson
in another room. Docket 94 at 12. Tycz returned and informed
Maday that Maday did not need to be in the SHU because he did
not do anything wrong. Docket 172 ¶ 266.
Maday alleges several ADA violations by defendants. First,
Maday alleges that defendants failed to accommodate his
diabetes when they failed to provide him with a specialized
diet. Docket 174 at 23. On February 4, 2016, Maday was
prescribed a 2400 calorie diabetic diet. Docket 94 at 13.
Maday alleges that he would request a diabetic diet tray but
would receive either a heart healthy or bland diet tray.
Id. Maday alleges that this occurred at every meal.
Id. On February 4, 2017, Maday signed a Release of
Responsibility form and returned to a regular diet tray.
Docket 140 ¶ 84; Docket 174 at 50. Maday stated that he
would pick and choose what to eat on the tray. Docket 94 at
13. Because of this, Maday alleges he struggled to maintain
healthy blood sugar levels. Id.
Maday alleges that he was not able to use the recreation yard
(Sports Complex) or the large recreation yard west of the
East and West Crawford living units for several reasons.
Docket 174 at 75. Maday's access to these recreation
facilities was limited due to his mobility issues, scheduling
conflicts, and the condition of the recreation facilities.
Id. at 76-77; Docket 1 ¶¶ 123-25. Maday
was unable to attend West Crawford's recreation time
(10:00 a.m.) because he had his blood glucose level checks
between 10:00 and 10:30 a.m. everyday. Docket 1 ¶ 123.
spring of 2015, the large recreation yard next to the West
Crawford living unit was opened to inmates for occasional
recreation time. Id. ¶ 60. Maday spent his
recreation time walking laps. Id. Maday alleges that
the condition of the recreation yard and the large Crawford
recreation yard prevented him from continuing his lap-walking
because he feared he would reinjure himself. Id.
¶¶ 60, 124. The recreation yard had potholes, large
rocks, broken asphalt, and uneven terrain. Id.
¶ 60. MDSP had an alternate recreation area in the gym,
but Maday was not allowed to use it because of his walking
boot/cast. Id. ¶ 125. Maday claims that he
should have been allowed to use the handicap recreation area.
Maday alleges that he did not receive handicap accommodations
when he broke his foot. Id. ¶ 126. While
Maday's foot was broken, Maday did not have access to the
handicap accessible shower. Id. ¶¶ 80,
126. Maday had to use the standard inmates shower, which he
alleges had a slick tile floor and no handrails. Id.
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.
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate where the moving party “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The court must view the facts, and
inferences from those facts, in the light most favorable to
the nonmoving party. Scott v. Harris, 550 U.S. 372,
378 (2007) (citing United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962) (per curiam)); see also Helton
v. Southland Racing Corp., 600 F.3d 954, 957 (8th Cir.
2010) (per curiam). The burden is placed on the moving party
to establish both the absence of any genuine issue of
material fact and that it is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(a). Once the movant has met its
burden, the nonmoving party may not simply rest on the
allegations in the pleadings, but must set forth specific
facts, by affidavit or other evidence, showing that a genuine
issue of material fact exists. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986); Fed.R.Civ.P. 56(e).
dispute is genuine when ‘the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.' ” Westchem Agric. Chems. Inc., v. Ford
Motor Co., 990 F.2d 426, 429 (8th Cir. 1993) (quoting
Anderson, 477 U.S. at 248). “A fact is
material when it might affect the outcome of the suit under
governing law.” Davis v. Or. Cty., 607 F.3d
543, 548 (8th Cir. 2010) (citing Anderson, 477 U.S.
at 248). “Only disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that
are irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248. “[T]he mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine
issue of material fact.” Id. at 247-48.
availability of summary judgment is essentially a question of
determining “whether there is the need for a
trial-whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party.” Id. at 250. Though pro se litigants
are entitled to a liberal construction of their pleadings,
Federal Rule of Civil Procedure 56 remains equally applicable
to them. Quam v. Minnehaha Cty. Jail, 821 F.2d 522,
522 (8th Cir. 1987).
Properly Fitting Shoes
alleges a deliberate indifference claim against several
defendants for their failure to provide him with properly
fitting shoes. Docket 1 ¶¶ 40-59, 129, 131.
Maday's first claim for deliberate indifference is
directed at non-medical staff: an unknown laundry supervisor
and Namminga. Id. ¶129. Maday's second
claim is directed at medical and MDSP staff: Hanvey,
Tolsma-Hanvey, Klimek, Tjeerdsma, and DeJong. Id.
¶ 131. In the report and recommendation, Magistrate
Judge Duffy recommended that the court grant defendants'
summary judgment motion for qualified immunity on this claim.
Docket 188 at 27.
majority of Maday's objections to the report and
recommendation are to non-material facts, like Magistrate
Judge Duffy's use of the word “abscess”
compared to Maday's assertion that he developed
“lesions.” See Docket 192 at 3. The
court will only address Maday's objections that go to the
substantive law or material facts because this is a motion
for summary judgment.
objects to Magistrate Judge Duffy's finding that
Maday's serious medical need, the abscess on his callus,
started on December 18, 2014. Docket 192 at 2 (citing Docket
188 at 18). The first element to a deliberate indifference
claim to serious medical needs requires Maday to show he
suffered objectively serious medical needs. Dulany v.
Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). Maday
argues that his calluses, sore, and ulcers on his feet
constitute serious medical needs because of his diabetes.
Docket 192 at 2-3. Generally, calluses alone do not
constitute a serious medical need. See, e.g.,
Stevens v. City of New York, 2013 WL 81327, at *3
(S.D.N.Y. Jan. 8, 2013) (finding calluses allegedly caused by
prison-issue footwear was not serious a medical need);
Wagle v. Skutt, 2011 WL 6004344, at *5 (E.D. Mich.
Nov. 7, 2011) (same); Liverman v. Gubernik, 2010 WL
3703314, at *12 (E.D. Pa. Sept. 21, 2010) (same); Grear
v. Gelabert, 2009 WL 607407, at *5 (W.D. Mich. Mar. 9,
2009) (holding petitioner's calluses did not constitute a
serious medical need because there was no infection and did
not require medical treatment). Here, Maday's
calluses-prior to December 18, 2014-do not rise to the level
of a serious medical need. In viewing the facts in the light
most favorable to Maday, the court will consider Maday's
open sore and ulcer-that was treated on December 18, 2014-to
rise to the level of a serious medical need because the
injuries required medical treatment. Thus, this objection is
Maday objects to Magistrate Judge Duffy's finding that
the facts alleged by Maday do not show deliberate
indifference. Docket 192 at 3 (citing Docket 188 at 22).
Magistrate Judge Duffy found that defendants attempted to
address Maday's complaints, and that the steps defendants
took do not show a mental state akin to criminal
recklessness. Docket 188 at 23. Magistrate Judge Duffy notes
several steps defendants took to address Maday's
complaints like giving him wide leather shoes, replacing
those shoes three times, giving him moleskin and pumice stone
for his calluses, and giving him continued access to medical
care. Id. at 22-23. Maday argues that defendants did
not attempt to address his complaints. Docket 192 at 3, 5.
Maday also objects to Magistrate Judge Duffy's findings
that defendants were not aware of Maday's serious medical
needs. Id. at 3 (citing Docket 188 at
24-25). Maday argues that he complained on numerous
occasions about his calluses. Id. at 6.
second element to a deliberate indifference claim requires
Maday to demonstrate that defendant actually knew of but
deliberately disregarded Maday's serious medical needs.
Dulany, 132 F.3d at 1239. There is no deliberate
indifference on the part of Namminga because she quickly gave
Maday the requested wide shoes when Maday initially asked for
wider shoes and when Maday had a medical order for New
Balance shoes. On his arrival to MDSP, Maday requested wide
shoes. Docket 1 ¶ 40. “A few days
later” Namminga issued Maday wide leather shoes.
Id. ¶ 41; Docket 192 at 3. Maday argues that
the provided wide shoes did not properly secure to his feet
and caused him to keep developing blisters. Docket 1 ¶
44. But Maday never informed Namminga personally that the
leather shoes were causing the problem with his feet. Docket
140 ¶ 18. Additionally, there was no medical order
instructing Namminga to issue Maday New Balance shoes until
December 18, 2014. Id. ¶ 21. Once Namminga
received this order, she immediately ordered the shoes. Thus,
Maday failed to show that Namminga “actually knew
of” Maday's blisters and that the shoes were
causing the issue.
the medical defendants, the record demonstrates that the
staff did not ignore Maday's complaints about his
sore/ulcer and the need for proper fitting shoes. On December
3, 2014, Maday complained to medical staff about the open
sore, and medical staff advised him to monitor it. Docket 1
¶ 54. On December 18, 2014, the open sore-that was now
an ulceration-was cleaned and antibiotics were applied.
Id. ¶ 57. Once Maday developed a serious
medical need, medical staff emailed Klimek and stated Maday
would benefit from better fitting shoes. Id. Maday
was sent to the laundry unit, his feet were measured, and New
Balance shoes were ordered. Id. ¶ 58. Maday
received his New Balance shoes six weeks later. Id.
This does not constitute deliberate indifference because once
defendants became aware of Maday's serious medical need,
they monitored the injury, and when the injury did not
improve, they ordered the necessary shoes.
objections are premised on his belief that the accommodations
or treatments did not fit his preferred choices.
“Prison officials do not violate the Eighth Amendment
when, in the exercise of their professional judgment, they
refuse to implement a prisoner's requested course of
treatment.” Long v. Nix, 86 F.3d 761, 765 (8th
Cir. 1996). The fact that Maday believed he should have been
prescribed New Balances at an earlier date does not establish
a claim that defendants were deliberately indifferent to his
serious medical need. Thus, both of Maday's objections
the court overruled all of Maday's objections on this
claim, the court adopts Magistrate Judge Duffy's analysis
and conclusion for this claim. The court grants ...