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Maday v. Dooley

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

September 30, 2019

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.



         Plaintiff, 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 judgment.


         In the light most favorable to Maday, the nonmoving party, the facts are as follows:

         Maday 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.

         I. Properly Fitting Shoes and the Comfort Items Policy

         At SDSP 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.

         Upon 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.

         Maday 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.

         Defendant 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.

         Maday 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.

         On 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 ¶ 58.

         II. Plantar Fasciitis and 2015 Foot Fracture

         In 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.

         On 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. at 13.

         III. Removal of Arch Supports and 2016 Foot Fracture

         On 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.

         On June 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.

         On 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. at 66.

         On 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 ¶ 91.

         IV. Diabetic Socks

         On 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.

         Maday 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 at 42-43.

         Maday 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.

         At a 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.

         V. Sports Illustrated Swimsuit Edition Magazines

         Maday 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 ¶¶ 185-88.

         Maday's 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.

         The 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.

         VI. Hardcover Books

         Maday 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.

         Per 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.

         All 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.

         VII. Mail

         The 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.

         On 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.

         On 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.

         VIII. Access to the Courts

         Maday 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.

         Maday 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. Id.

         Maday 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 ¶ 102.

         On 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.

         IX. Grievances and Placement in the Security Housing Unit

         Maday 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.

         On 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 at 23.

         On 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.

         X. ADA Accommodations

         Finally, 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.

         Second, 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.

         In the 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. Id.

         Next, 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. ¶ 126.


         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).


         Under 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).

         “A 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.

         The 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).

         I. Deliberate Indifference

         A. Properly Fitting Shoes

         Maday 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.

         A 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.

         Maday 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 overruled.

         Next, 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.

         The 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.

         As to 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.

         Maday's 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 are overruled.

         Because 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 ...

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