Tony A. Kenyon v. Warden Dooley, et al

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Steven M. Colloton and Jane Kelly (UNPUBLISHED) [4259010] [14-2966]

United States Court of Appeals
For the Eighth Circuit
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No. 14-2966
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Tony A. Kenyon
lllllllllllllllllllll Plaintiff - Appellant
v.
Warden Dooley; Department of Health; Dr. Reiger; Darl Deide, Pheasantland
Industries; Stromab Spa Manufacturing Company
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the District of South Dakota - Sioux Falls
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Submitted: February 24, 2015
Filed: March 27, 2015
[Unpublished]
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Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
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PER CURIAM.
South Dakota inmate Tony Kenyon brought a 42 U.S.C. § 1983 action claiming
that (1) defendants failed to protect him from injury by dangerous equipment at the
prison’s cabinet shop, resulting in a serious injury to his fingers, and (2) after the

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injury defendants provided inadequate aftercare. The district court1 granted
defendants’ motion for summary judgment, and this appeal followed.
Kenyon argues that the court erred in dismissing, before service of process, his
claim that prison overcrowding was partially responsible for his injury. We conclude
that the court properly dismissed the claim because it was conclusory. See Moore v.
Sims, 200 F.3d 1170, 1171 (8th Cir. 2000) (per curiam) (de novo review). Kenyon
also asserts that the court wrongly denied his motions for appointment of counsel, but
upon careful review of the record, we cannot say that the court abused its discretion.
See Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 794 (8th Cir. 2006) (standard of
review and relevant factors).
Following de novo review, see Beaulieu v. Ludeman, 690 F.3d 1017, 1024 (8th
Cir. 2012), we also conclude that the court properly granted summary judgment.
First, the record contains no indication that any defendant had actual knowledge that
Kenyon risked serious harm from using the piece of equipment at issue. See Farmer
v. Brennan, 511 U.S. 825, 847 (1994). Instead, the undisputed evidence shows that
staff regularly inspected the equipment, and no inmate reported any safety or
performance issues regarding the equipment in question. See Ambrose v. Young, 474
F.3d 1070, 1075 (8th Cir. 2007) (to defeat summary judgment on
conditions-of-confinement claim, plaintiff must show prison officials disregarded
known risk in prison work assignment). Second, the record shows that immediately
after the incident, Kenyon was provided emergency care, and there is no evidence that
the delay in providing the occupational therapy recommended by his surgeon resulted
in preventable harm. See Moots v. Lombardi, 453 F.3d 1020, 1023 (8th Cir. 2006)
(inmate claiming deliberate indifference based on delay in treatment must allege that
delay caused harm). Third, although Kenyon was not provided the medication

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The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
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originally prescribed, he was provided pain medication in combinations and doses
approved by the prison physician, see Meuir v. Greene Cnty. Jail Emps., 487 F.3d
1115, 1118–19 (8th Cir. 2007) (difference of medical opinion or course of treatment
does not constitute deliberate indifference), and Kenyon reported that the medication
was working to dull his pain. Though Kenyon alleged he experienced pain in the 36
hours between his first surgery and when he was given pain medication, and 38 hours
between his second surgery and medication, he again failed to allege that he suffered
any detrimental effect as a result of that delay. See Laughlin v. Schriro, 430 F.3d
927, 929 (8th Cir. 2005). Moreover, nothing in the record shows that any individual
defendant was responsible for the alleged delays after surgery. See Beaulieu, 690
F.3d at 1030–31 (citing Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35,
37 (8th Cir. 1995)) (plaintiff alleging deliberate indifference under § 1983 must
specify how defendants were personally involved in, or had direct responsibility for,
incidents that injured him).
Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B.
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