Brown v. Doel et al

Filing 46

MEMORANDUM AND ORDER granting 42 Motion for Summary Judgment. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JESUS BROWN,
Plaintiff,

4:18CV3020

vs.
DR. DEOL, Nebraska Department of
Correctional Services Medical Director,
individually and in their official
capacities; GARY J. HUSTAD, MD,
individually and in their official
capacities; DAN DANAHER, Physician
Assistant, individually and in their official
capacities;
and
DR.
JEFFREY
KASSELMAN, in his individual and
official capacity;

MEMORANDUM
AND ORDER

Defendants.

This matter is before the court on Defendants’ Motion for Summary
Judgment. (Filing No. 42.) For the reasons that follow, the Motion is granted.
I. BACKGROUND
Plaintiff, an inmate in the custody of the Nebraska Department of Correctional
Services (“NDCS”) and currently confined at the Lincoln Correctional Center
(“LCC”), brings this 42 U.S.C. § 1983 action against Defendants Dr. Deol, the
NDCS Medical Director; Gary J. Hustad, M.D., a doctor responsible for NDCS
inmates housed at LCC and the Diagnostic & Evaluation Center (“DEC”); Dr.
Jeffrey Kasselman, the pain specialist for the NDCS; and Physician Assistant
(“P.A.”) Dan Danaher. (Filing No. 1 & Filing No. 21.) Plaintiff claims that

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Defendants have failed to provide him medical treatment in violation of the Eighth
Amendment. (Filing No. 1 & Filing No. 21.)
Plaintiff alleges that he entered NDCS custody with an existing back injury
from a car accident for which he had been receiving treatment. Upon admission at
the DEC, Plaintiff informed NDCS medical staff of his back injury and pain, as well
as medical issues with his neck, feet, hand, elbow, shoulder, and knee. Plaintiff
asserts that his medical conditions are documented in his medical records, in MRIs,
and by specialists, and that Defendants are “well aware of the plaintiff’s medical
issues and still wish to not treat him for them as they should be.” (Filing No. 1 at
CM/ECF p. 3.) More specifically, Plaintiff complains that he was given Gabapentin
for his pain issues, rather than Lyrica as was recommended by another doctor (Filing
No. 1-1 at CM/ECF pp. 3, 14), and that his prescription pain medication eventually
was tapered off, and then discontinued, “even though the[re] is written
documentation and [a] specialist that say[s] he needs pain medication.” (Filing No.
1 at CM/ECF p. 3; Filing No. 1-1 at CM/ECF p. 8. In a supplement, Plaintiff
indicates that he has been put back on Gabapentin as of July 31, 2018 but maintains
that he is still in extreme pain and medical is refusing to provide necessary medical
treatment. (Filing No. 15 at CM/ECF pp. 1, 86–91.)
With respect to Dr. Hustad and P.A. Danaher, Plaintiff alleges that they both
were responsible for the medical care of inmates housed at the LCC. (Filing No. 1
at CM/ECF p. 2.) Plaintiff alleges that both Dr. Hustad and P.A. Danaher were aware
of Plaintiff’s medical needs, his complaints of extreme pain, and that outside prison
doctors had ordered certain treatments and medications. Despite this knowledge,
they refused to administer Plaintiff the necessary treatments and medications
recommended by Plaintiff’s outside physicians. Specifically, Plaintiff alleges that
one specialist “even recommended a stronger pain medication and P.A. Danaher
refused to give this medication to [Plaintiff] and ordered a less stronger medication
for his pain so as [Plaintiff] had to suffer in pain.” (Filing No. 1 at CM/ECF p. 3.)
Further, Plaintiff alleges “P.A. Danaher also told the Plaintiff that because he
complained so much about being in pain [P.A. Danaher] did not believe that he was
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in pain and took him off all of his pain medication even though the[re] is written
documentation and [a] specialist that say he needs pain medication.” (Filing No. 1
at CM/ECF p. 3.) Plaintiff alleges that Dr. Hustad oversees P.A. Danaher and knew
of Plaintiff’s medical needs but failed to ensure Plaintiff received the treatment he
needs. The Inmate Interview Requests (“IIRs”) attached to Plaintiff’s Complaint
show that Dr. Hustad consulted with P.A. Danaher about Plaintiff’s medical
complaints and personally responded to some of Plaintiff’s IIRs about his medical
issues. (Filing No. 1-1 at CM/ECF pp. 11, 13-14.)
Regarding Dr. Kasselman, Plaintiff alleges that he is the pain specialist for the
NDCS who “agreed to remove [Plaintiff] off his medication, even when he was in
serious pain.” (Filing No. 21 at CM/ECF pp. 1, 3, ¶¶ 4, 20.)
Plaintiff further alleges that Dr. Deol, the NDCS Medical Director, was
deliberately indifferent to Plaintiff’s medical needs and “knew or should have
known” about Plaintiff’s medical needs and lack of treatment because “he oversees
all of the Department of Medical and is the one whom approves all Medical
procedures and treatments being done to any prison inmate . . . and is the one whom
told all his staff to make cuts in spending and to stop treating some things.” (Filing
No. 1 at CM/ECF p. 5; Filing No. 21 at CM/ECF p. 5, ¶ 28.)
As relief for the Defendants’ alleged deliberate indifference to Plaintiff’s
medical needs, Plaintiff seeks declaratory and injunctive relief, $500,000.00 in
compensatory damages, and $500,000.00 in punitive damages against each
Defendant.1 (Filing No. 1 at CM/ECF p. 5; Filing No. 21 at CM/ECF pp. 5-6.)

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The court previously determined that this action could proceed to service of
process as to Plaintiff’s Eighth Amendment claims against Defendants in their
individual capacities, as well as in their official capacities for prospective injunctive
relief only. (Filing No. 16 at CM/ECF p. 15; Filing No. 28 at CM/ECF p. 4.)
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Defendants filed their Motion for Summary Judgment on July 8, 2019. (Filing
No. 42.) Along with their Motion, Defendants filed a Brief in Support and an Index
of Evidence. (Filing No. 43 & Filing No. 43.) Plaintiff did not file a response to
Defendants’ Motion.
Plaintiff, a pro se litigant, is “bound by and must comply with all local and
federal procedural rules.” NEGenR 1.3(g). The court’s local rules require the party
moving for summary judgment to file a brief containing a “separate statement of
material facts about which the moving party contends there is no genuine issue to be
tried and that entitles the moving party to judgment as a matter of law.” This
statement of facts “should consist of short numbered paragraphs, each containing
pinpoint references to . . . materials that support the material facts . . . .” NECivR
56.1(a). The opposing party must respond to the moving party’s statement of
material facts in a brief containing separate numbered paragraphs with citations to
supporting references and with identification of material facts that are disputed.
NECivR 56.1(b). See also NECivR 7.1(b)(2)(A) (“When filing the opposing brief,
the opposing party must also file and serve supporting evidentiary material not
previously filed.”). Properly referenced material facts in the movant’s statement of
facts are “considered admitted unless controverted in the opposing party’s
response.” NECivR 56.1(b)(1).
The court has carefully reviewed the documents submitted by Defendants.
While Defendants have submitted a statement of material facts in accordance with
the court’s rules, Plaintiff has not filed any response to Defendants’ Motion for
Summary Judgment.2 Further, Defendants submitted evidence which was properly
authenticated by medical records and declarations. In light of this, the court adopts
The court does consider the facts alleged in Plaintiff’s verified Complaint
and attached exhibits, Plaintiff’s Amended Complaint, and Plaintiff’s Supplement
and attached exhibits. See Roberson v. Hayti Police Dep’t, 241 F.3d 992, 994-95
(8th Cir. 2001) (“The facts alleged in a verified complaint need not be repeated in a
responsive affidavit in order to survive a summary judgment motion.”) (citations
omitted).
2

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the following undisputed material facts, which are largely taken from Defendants’
submission.
II. UNDISPUTED MATERIAL FACTS
1.
On March 27, 2014, Plaintiff was seen by medical staff at the DEC in
Lincoln, Nebraska, with complaints of mid-back pain. (Filing No. 43-1 at CM/ECF
p. 1.) Records from Plaintiff’s previous emergency room visit indicated a T11 wedge
compression fracture that was “fairly mild.” (Filing No. 43-1 at CM/ECF p. 1.)
Plaintiff’s cervical spine CT was completely negative. (Filing No. 43-1 at CM/ECF
p. 1.) Physician Assistant (“P.A.”) Cheryl Flinn continued to prescribe Plaintiff
Tramadol and prescribed Plaintiff Ibuprofen 800 mg “to take in between” as needed
and Flexeril 10 mg to try for the next couple of months. (Filing No. 43-1 at CM/ECF
p. 1.) Plaintiff acknowledged he would not be prescribed Flexeril forever. (Filing
No. 43-1 at CM/ECF p. 1.)
2.
On April 15, 2014, Plaintiff was seen by Dr. Christina-Lynn Ferguson
complaining of back pain from a car accident in 2013. (Filing No. 43-1 at CM/ECF
pp. 2, 28.) Dr. Ferguson noted Plaintiff would be scheduled for an X-ray of his
thoracic and lumbar spine. (Filing No. 43-1 at CM/ECF p. 2.) Dr. Ferguson
explained she would schedule Plaintiff for removal of glass from his left forearm as
well. (Filing No. 43-1 at CM/ECF p. 2.)
3.
On April 18, 2014, Plaintiff received an X-ray of his lumbar and
thoracic spine. (Filing No. 43-1 at CM/ECF pp. 3-4.) No acute osseous or alignment
abnormality was observed on Plaintiff’s lumbar spine. (Filing No. 43-1 at CM/ECF
p. 3.) With respect to Plaintiff’s thoracic spine, the X-ray indicated “T11 ageindeterminate wedge compression deformity with approximately 30% loss of
height” but no fractures, dislocations, or alignment abnormality. (Filing No. 43-1 at
CM/ECF p. 4.)

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4.
On May 16, 2014, Plaintiff underwent a procedure in which glass was
removed from his forearm. (Filing No. 43-1 at CM/ECF p. 5.)
5.
On May 23, 2014, Plaintiff received a lower-bunk pass for 30 days.
(Filing No. 43-1 at CM/ECF p. 6.)
6.
On June 5, 2014, Plaintiff was seen by Dr. Christina-Lynn Ferguson
regarding his chronic back pain. (Filing No. 43-1 at CM/ECF p. 7.) Dr. Ferguson
discussed with Plaintiff that Flexeril should be limited to short periods of time.
(Filing No. 43-1 at CM/ECF p. 7.) Plaintiff was prescribed Methocarbamol 750 mg
for back spasms. (Filing No. 43-1 at CM/ECF p. 7.)
7.
On August 7, 2014, medical saw Plaintiff regarding pain in his right
hand. (Filing No. 43-1 at CM/ECF p. 8.) The next day, on August 8, 2014, Plaintiff
had an X-ray of that hand. (Filing No. 43-1 at CM/ECF p. 8.)
8.
On October 16, 2014, Plaintiff received a lower-bunk pass for 90 days.
(Filing No. 43-1 at CM/ECF p. 9.)
9.
On October 18, 2014, Plaintiff requested a refill of his Methocarbamol
prescription for his back pain. (Filing No. 43-1 at CM/ECF p. 11.) It was refilled
three days later. (Filing No. 43-1 at CM/ECF p. 11.)
10. On October 20, 2014, Plaintiff received a lower-bunk pass for twelve
months. (Filing No. 43-1 at CM/ECF p. 10.)
11. Upon referral, Plaintiff saw an orthopedic specialist on November 3,
2014 for his hand pain. (Filing No. 43-1 at CM/ECF p. 12.) X-rays indicated posttraumatic arthritis, secondary to closed fist injuries. (Filing No. 43-1 at CM/ECF p.
12.) The orthopedic specialist, Dr. Scott Strasburger, had no recommendations for
treatment. (Filing No. 43-1 at CM/ECF p. 12.)

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12. On November 19, 2014, Plaintiff was seen by medical for back and foot
pain. (Filing No. 43-1 at CM/ECF p. 14.) Medical continued Plaintiff’s prescription
for Tramadol and Ibuprofen 800 mg as needed. (Filing No. 43-1 at CM/ECF p. 14.)
13. On November 19, 2014, Plaintiff was given a medical-equipment pass
for orthotic arches. (Filing No. 43-1 at CM/ECF p. 15.)
14. On December 22, 2014, after reporting that the outside orthopedist said
surgery would not help Plaintiff’s wrist, medical requested (and it was approved) up
to six visits for physical therapy for Plaintiff’s right hand/wrist. (Filing No. 43-1 at
CM/ECF p. 13.)
15. On December 22, 2014, Plaintiff was given a medical-equipment pass
for a brace/splint for carpal tunnel. (Filing No. 43-1 at CM/ECF p. 16.)
16. On December 24, 2014, Plaintiff met with medical and discussed his
right wrist pain and how they would proceed with physical therapy to work on
strengthening his grip and increasing his range of motion. (Filing No. 43-1 at
CM/ECF p. 17.) Medical also ordered fish oil 1000 mg for joint pain. (Filing No.
43-1 at CM/ECF p. 17.)
17. On January 8, 2015, and January 22, 2015, Plaintiff did not show up for
his scheduled physical therapy appointments. (Filing No. 43-1 at CM/ECF pp. 1819.)
18. On February 3, 2015, Plaintiff met with P.A. Cameron Eklund to
discuss his neck and hand pain. (Filing No. 43-1 at CM/ECF p. 20.) P.A. Eklund
prescribed a cervical pillow for six months, a cock-up wrist splint to sleep in, and
continued physical therapy. (Filing No. 43-1 at CM/ECF p. 20.)
19. On February 12, 2015, Plaintiff met with Dr. Ferguson complaining of
back pain. (Filing No. 43-1 at CM/ECF pp. 20-21.) Dr. Ferguson advised Plaintiff
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to continue taking Tramadol for back and hand pain, continue using wrist splint, and
was prescribed 300 mg Gabapentin to use in the mornings for back pain. (Filing No.
43-1 at CM/ECF p. 21.)
20. On March 25, 2015, Plaintiff received a medical equipment pass for
arch insoles. (Filing No. 43-1 at CM/ECF p. 22.)
21. On April 3, 2015, medical ordered, and Plaintiff received, an X-ray on
his elbow. (Filing No. 43-1 at CM/ECF p. 23.)
22. On April 27, 2015, Plaintiff failed to attend his scheduled appointment.
(Filing No. 43-1 at CM/ECF p. 24.)
23. On May 8, 2015, Plaintiff failed to attend his scheduled appointment.
(Filing No. 43-1 at CM/ECF p. 24.)
24. On May 27, 2015, Plaintiff met with APRN Julie Pew with complaints
of hand and knee pain. (Filing No. 43-1 at CM/ECF p. 24.) APRN Pew noted
Plaintiff was already taking Tramadol 50 mg three times per day, Gabapentin 300
mg in the morning, and Methocarbamol 750 mg two times per day. (Filing No. 431 at CM/ECF p. 24.) APRN Pew added Naproxen 500 mg twice per day as needed
for hand and knee pain with one refill. (Filing No. 43-1 at CM/ECF p. 24.)
Additionally, APRN Pew ordered an X-ray of his knee. (Filing No. 43-1 at CM/ECF
p. 24.)
25. On May 29, 2015, Plaintiff received an X-ray of his knee. (Filing No.
43-1 at CM/ECF p. 25.)
26. On or around the summer of 2015, Plaintiff was released from prison
and released into the community. (Filing No. 43-1 at CM/ECF pp. 26, 95.)

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27. On or about October 22, 2015, Plaintiff was back within NDCS custody
and complained of back pain in an IIR. (Filing No. 43-1 at CM/ECF p. 27.) The next
day, NDCS staff informed Plaintiff he should start receiving Tramadol, Flexeril, and
Gabapentin that day. (Filing No. 43-1 at CM/ECF p. 27.)
28. On October 27, 2015, Plaintiff met with medical to address complaints
of back pain. (Filing No. 43-1 at CM/ECF p. 28.) Plaintiff complained his Tramadol
50 mg twice per day was not helping and that he was not receiving Flexeril. (Filing
No. 43-1 at CM/ECF p. 28.) P.A. Jennifer Biestek informed Plaintiff that
“Cyclobenzaprine,” which he had been receiving, was, in fact, Flexeril. (Filing No.
43-1 at CM/ECF p. 28.) P.A. Biestek noted in Plaintiff’s medical file that he had a
history of drug abuse (methamphetamines, cocaine, and marijuana) per his intake
physical. (Filing No. 43-1 at CM/ECF p. 28.) P.A. Biestek declined to increase
Plaintiff’s Tramadol because she did not believe there was enough medical
documentation of necessity based on MRI findings. (Filing No. 43-1 at CM/ECF p.
28.) Defendant Dr. Hustad agreed with P.A. Biestek’s treatment plan. (Filing No.
43-1 at CM/ECF p. 28.)
29. On October 29, 2015, Plaintiff received a lower-bunk pass for 365 days.
(Filing No. 43-1 at CM/ECF p. 29.)
30. On November 2, 2015, Plaintiff met with P.A. Flinn complaining of
wrist, hand, and back pain. (Filing No. 43-1 at CM/ECF p. 30.) Plaintiff believed
that there was some sort of surgery to fix the problems. (Filing No. 43-1 at CM/ECF
p. 30.) P.A. Flinn informed him surgery is not done with compression fractures.
Filing No. 43-1 at CM/ECF p. 30.) P.A. Flinn ordered an X-ray of Plaintiff’s hand
and wrist and restricted Plaintiff from weightlifting or playing basketball. (Filing
No. 43-1 at CM/ECF p. 30.) Plaintiff said he did not lift weights, but P.A. Flinn
noted that his physique suggested otherwise. (Filing No. 43-1 at CM/ECF p. 30.)
31. On November 2, 2015, Plaintiff was approved for a physical therapy
consultation. (Filing No. 43-1 at CM/ECF p. 30.)
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32. On November 3, 2015, Plaintiff received an X-ray of his right wrist and
hand. (Filing No. 43-1 at CM/ECF p. 31.) No evidence of an acute fracture or
dislocation in the hand was observed. (Filing No. 43-1 at CM/ECF p. 31.)
33. On November 5, 2015, Plaintiff received a physical therapy evaluation
and approval for six sessions. (Filing No. 43-1 at CM/ECF p. 32.)
34. On November 19, 2015, Dr. Hustad saw Plaintiff because of “ongoing
complaints of inadequate management of chronic mid back pain.” (Filing No. 43-1
at CM/ECF p. 33.) After discussion with, and examination of, Plaintiff, Dr. Hustad
ordered Plaintiff’s Naproxen discontinued (Plaintiff reported it was not effective),
increased Tramadol to 50 mg 3 times per day, increased Gabapentin to 400 mg one
in morning and two at night. (Filing No. 43-1 at CM/ECF p. 34.) Dr. Hustad strongly
encouraged Plaintiff to comply with physical therapy recommendations and
expressed his “long-term prognosis is to be found in non-medication modalities.”
(Filing No. 43-1 at CM/ECF p. 34.)
35. On December 23, 2015, Plaintiff was given 60 mg of Ketorolac after
feeling pain from lifting heavy milk carts. (Filing No. 43-1 at CM/ECF p. 35.)
36. On December 31, 2015, Dr. Hustad saw Plaintiff to follow-up on his
low back and neck pain. (Filing No. 43-1 at CM/ECF p. 36.) Dr. Hustad requested a
neurosurgical consultation to evaluate possible carpal tunnel syndrome and
Plaintiff’s low back pain in light of his MRI in October 2015. (Filing No. 43-1 at
CM/ECF p. 37.) Dr. Hustad ordered an X-ray of Plaintiff’s cervical spine, thoracic
spine, and lumbar sacral spine. (Filing No. 43-1 at CM/ECF p. 37.) Dr. Hustad
increased Plaintiff’s Gabapentin to 600 mg in the morning and 1200 mg at night.
(Filing No. 43-1 at CM/ECF p. 37.) Dr. Hustad reviewed and continued Plaintiff’s
other prescriptions such as Methocarbamol 750 mg twice a day and Tramadol 50 mg
three times a day. (Filing No. 43-1 at CM/ECF p. 38.)

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37. On January 5, 2016, Plaintiff had an X-ray of lumbar, thoracic, and
cervical spine per Dr. Hustad’s order. (Filing No. 43-1 at CM/ECF p. 39.)
Radiograph of the cervical, thoracic, and lumbar spine resulted in normal
impression. (Filing No. 43-1 at CM/ECF p. 39.)
38. On January 19, 2016, Dr. Hustad sent Plaintiff to an outside
neurological and spinal surgery consult regarding his back pain. (Filing No. 43-1 at
CM/ECF pp. 41-42.) Consult determined there was nothing surgical to offer for
Plaintiff’s back pain and “really doubt[ed]” that injections would be helpful either.
(Filing No. 43-1 at CM/ECF pp. 42-43.)
39. On February 2, 2016, Dr. Kohl approved Plaintiff to see an outside
orthopedic surgeon for a consultation regarding a cyst on his wrist and hand pain.
(Filing No. 43-1 at CM/ECF p. 43.)
40. On February 4, 2016, Plaintiff received an X-ray of his hand. (Filing
No. 43-1 at CM/ECF p. 44.)
41. On February 23, 2016, per Dr. Hustad’s referral, Plaintiff met with an
outside orthopedic surgeon who explained treatment options for his cyst on his wrist
to include observation, compression, aspiration, and surgical excision. (Filing No.
43-1 at CM/ECF pp. 45-48.) Plaintiff indicated he wished to proceed with surgery.
(Filing No. 43-1 at CM/ECF p. 46.)
42. On March 1, 2016, Dr. Hustad met with Plaintiff to discuss the surgical
consult and Plaintiff’s back and elbow pain. (Filing No. 43-1 at CM/ECF p. 48.)
Since the time of the consult with the orthopedic surgeon, the cyst on Plaintiff’s hand
had “gone away” and was no longer causing symptoms. (Filing No. 43-1 at CM/ECF
p. 48.) Dr. Hustad ordered X-rays of both of Plaintiff’s elbows because of complaints
of chronic pain. (Filing No. 43-1 at CM/ECF p. 48.) Dr. Hustad discussed with
Plaintiff the possibility of using Cyclobenzaprine for musculoskeletal pain;
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however, a drug interaction query indicated increased risk of seizures if taken
concomitantly with Tramadol. (Filing No. 43-1 at CM/ECF p. 48.) As such, Dr.
Hustad chose not to prescribe Cyclobenzaprine at that time. (Filing No. 43-1 at
CM/ECF p. 48.) Dr. Hustad recommended Plaintiff complete his physical therapy
regarding his back pain. (Filing No. 43-1 at CM/ECF p. 48.) Dr. Hustad renewed
Plaintiff’s Tramadol prescription for two more weeks. (Filing No. 43-1 at CM/ECF
p. 48.)
43. On March 3, 2016, per Dr. Hustad’s request, Plaintiff received X-rays
of both elbows. (Filing No. 43-1 at CM/ECF p. 49.)
44. On March 29, 2016, Dr. Hustad met with Plaintiff following receipt of
IIRs concerning neck pain. (Filing No. 43-1 at CM/ECF p. 50.) Dr. Hustad ordered
X-rays, encouraged continued physical therapy, renewed Plaintiff’s lower bunk pass
for 180 days, renewed Plaintiff’s prescription of Tramadol, and scheduled to see
Plaintiff again after he had completed more X-rays and physical therapy. (Filing No.
43-1 at CM/ECF p. 50.)
45. On March 31, 2016, Plaintiff received a medical equipment pass for a
back support/brace. (Filing No. 43-1 at CM/ECF p. 51.)
46. On April 5, 2016, per Dr. Hustad’s request, Plaintiff received a cervical
spine X-ray for his neck pain. (Filing No. 43-1 at CM/ECF p. 52.)
47. On April 12, 2016, Dr. Hustad met with Plaintiff to follow-up on his
neck pain. (Filing No. 43-1 at CM/ECF p. 53.) The X-rays taken on April 5, 2016
revealed Plaintiff’s C-spine was negative for abnormalities. (Filing No. 43-1 at
CM/ECF p. 53.) Dr. Hustad informed Plaintiff he spoke with Plaintiff’s physical
therapist who prescribed using a Theraband and doing his home exercise program
as recommended. (Filing No. 43-1 at CM/ECF p. 53.) Dr. Hustad advised Plaintiff
to continue present medications as recommended for back pain. (Filing No. 43-1 at
CM/ECF p. 53.) Plaintiff complained of foot pain. (Filing No. 43-1 at CM/ECF p.
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53.) Dr. Hustad indicated he would inquire about getting loafers for Plaintiff to help
with arch support. (Filing No. 43-1 at CM/ECF p. 53.
48. On May 5, 2016, Plaintiff received a medical equipment pass for a
TENS unit with wires and electrodes. (Filing No. 43-1 at CM/ECF p. 54.)
49. On May 13, 2016, Plaintiff received black Velcro shoes from medical.
(Filing No. 43-1 at CM/ECF p. 55.)
50. On May 24, 2016, Dr. Hustad met with Plaintiff to follow-up regarding
his various pain issues. (Filing No. 43-1 at CM/ECF p. 56.) Plaintiff indicated that
his back pain seemed to be better with current medical regimen and physical therapy
and TENS unit use. (Filing No. 43-1 at CM/ECF p. 56.) Dr. Hustad and Plaintiff
discussed issues with Plaintiff’s hand. (Filing No. 43-1 at CM/ECF p. 56.) Dr.
Hustad ordered follow-up consultation with an outside orthopedic surgeon, Dr.
Machado. (Filing No. 43-1 at CM/ECF p. 56.) Plaintiff requested to be prescribed
Amitriptyline to help him with his shoulder and back pain when he sleeps. (Filing
No. 43-1 at CM/ECF p. 56.) Dr. Hustad advised Plaintiff he would perform a drug
interaction query and determine if it would be safe to consider adding Amitriptyline
to his medication regimen. (Filing No. 43-1 at CM/ECF p. 56.)
51. On June 20, 2016, Plaintiff met with medical complaining of
neuropathic pain in the afternoon. (Filing No. 43-1 at CM/ECF p. 57.) Medical
advised it would increase Gabapentin dose for better afternoon coverage. (Filing No.
43-1 at CM/ECF p. 57.)
52. On August 11, 2016, Dr. Hustad renewed Plaintiff’s prescription for
Tramadol. (Filing No. 43-1 at CM/ECF p. 58.)
53. On August 30, 2016, Dr. Hustad met with Plaintiff to discuss hand pain
and possibility of surgery. (Filing No. 43-1 at CM/ECF p. 59.) Dr. Hustad explained
that the outside orthopedic surgeon did not recommend surgery but encouraged
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Plaintiff to seek a second opinion if he wished. (Filing No. 43-1 at CM/ECF p. 59.)
Dr. Hustad expressed he would request over-the-counter arch supports to help with
Plaintiff’s foot pain. (Filing No. 43-1 at CM/ECF p. 59.)
54. On September 20, 2016, Dr. Hustad met with Plaintiff for follow-up
regarding foot, joint, and hand pain. (Filing No. 43-1 at CM/ECF p. 61.) Dr. Hustad
advised Plaintiff to continue current medications for joint pain and that he was
approved for consultation for a second opinion regarding his hand and was approved
for over-the-counter arch supports. (Filing No. 43-1 at CM/ECF p. 61.)
55. On September 20, 2016, Plaintiff received a lower-bunk pass for 180
days. (Filing No. 43-1 at CM/ECF p. 62.)
56. On September 22, 2016, medical gave Plaintiff replacement loafers.
(Filing No. 43-1 at CM/ECF p. 60.)
57. On September 26, 2016, medical provided Plaintiff with orthotic arch
supports. (Filing No. 43-1 at CM/ECF p. 63.)
58. On November 8, 2016, Dr. Hustad met with Plaintiff to discuss ongoing
pain in his right hand. (Filing No. 43-1 at CM/ECF pp. 64-65.) Dr. Hustad sent
Plaintiff’s records and images of his hand to an outside provider, Dr. Gove, for
Plaintiff’s requested second opinion. (Filing No. 43-1 at CM/ECF p. 64.) Dr. Gove
reviewed records and had nothing else to offer that was not already presented by the
first consulting orthopedic surgeon, Dr. Machado, and thus refused to see Plaintiff
for this problem. (Filing No. 43-1 at CM/ECF p. 64.) Plaintiff also complained of
knee pain incident to a recent fall. (Filing No. 43-1 at CM/ECF p. 64.) Dr. Hustad
ordered X-rays of Plaintiff’s knee and patella, as well as a consult request of physical
therapy to help recommend non-operative and non-medication modalities regarding
his right hand pain. (Filing No. 43-1 at CM/ECF p. 65.) Dr. Hustad noted he would
follow-up after physical therapy and results of X-rays. (Filing No. 43-1 at CM/ECF
p. 65.)
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59. On November 14, 2016, Plaintiff received an X-ray of his right knee.
(Filing No. 43-1 at CM/ECF p. 66.) The X-ray indicated moderate suprapatellar knee
joint effusion but no fracture or dislocation was observed. (Filing No. 43-1 at
CM/ECF p. 66.)
60. On November 17, 2016, Plaintiff underwent a physical therapy
evaluation. (Filing No. 43-1 at CM/ECF p. 65.)
61. On December 13, 2016, Dr. Hustad met with Plaintiff and discussed a
consult request for physical therapy for Plaintiff’s knee pain. (Filing No. 43-1 at
CM/ECF pp. 67-68.) Dr. Hustad also sent a consult request to an orthopedic foot and
ankle specialist for evaluation of Plaintiff’s foot pronation and foot pain. (Filing No.
43-1 at CM/ECF pp. 67-68.)
62. On December 22, 2016, Plaintiff’s medical equipment pass for a TENS
unit with electrodes, wires, and battery was renewed. (Filing No. 43-1 at CM/ECF
p. 69.)
63. On January 12, 2017, Plaintiff received X-rays of his right elbow.
(Filing No. 43-1 at CM/ECF p. 70.)
64. On January 27, 2017, Plaintiff was sent to an outside orthopedic
specialist who provided an injection of 14 mg of Celestone, 60 mg of Marcaine, and
60 mg of Lidocaine on Plaintiff’s knee. (Filing No. 43-1 at CM/ECF pp. 71-72.) The
orthopedic specialist also recommended bilateral custom molded orthotics to help
Plaintiff’s feet. (Filing No. 43-1 at CM/ECF p. 73.)
65. On February 2, 2017, an X-ray of Plaintiff’s right elbow was ordered.
(Filing No. 43-1 at CM/ECF p. 74.)

15

66. On February 7, 2017, per Dr. Hustad’s request, Plaintiff received an Xray of his right elbow. (Filing No. 43-1 at CM/ECF p. 75.) No fracture deformity or
joint effusion was identified, and the soft tissue was normal. (Filing No. 43-1 at
CM/ECF p. 75.) There was “a stable small rounded ossification at the medial
epicondyle, likely related to remote medial epicondylitis.” (Filing No. 43-1 at
CM/ECF p. 75.)
67. On February 14, 2017, per Dr. Hustad’s request, Dr. Deol approved
bilateral custom molded orthotics for Plaintiff. (Filing No. 43-1 at CM/ECF p. 80.)
68. On March 2, 2017, Dr. Hustad met with Plaintiff to discuss pain in his
feet, wrist, elbows, and knee. (Filing No. 43-1 at CM/ECF p. 76.) Dr. Hustad
prescribed Naproxen 250 mg on a short-term basis to see if it helped with pain, cold
packs daily for Plaintiff’s right hand pain, asked the physical therapist to contact him
to discuss Plaintiff’s right hand and his assessment of it, and ordered new X-rays of
Plaintiff’s elbows. (Filing No. 43-1 at CM/ECF p. 77.) Dr. Hustad planned to followup with Plaintiff in 4-6 weeks after X-rays, physical therapy, and trial of
medications. (Filing No. 43-1 at CM/ECF p. 77.)
69. On March 3, 2017, Plaintiff received a medical equipment pass for an
edema glove for his hand. (Filing No. 43-1 at CM/ECF p. 78.)
70. On March 15, 2017, Dr. Hustad refilled Plaintiff’s Tramadol 50 mg
prescription. (Filing No. 43-1 at CM/ECF p. 79.)
71. On March 29, 2017, Plaintiff was seen by P.A. Vaughan Wenzel after
Plaintiff sustained an injury in a fight, as well as for back pain. (Filing No. 43-1 at
CM/ECF p. 81.) Plaintiff was prescribed Ibuprofen 800 mg for 3 days and was
continued on Tramadol 100 mg. (Filing No. 43-1 at CM/ECF p. 82.) Medical noted
that Cyclobenzaprine was “ABSOLUTELY [contraindicated] with other psych
meds he takes” and with Gabapentin “that he is already taking for low back pain.”
(Filing No. 43-1 at CM/ECF p. 82.) X-rays and an MRI were ordered for Plaintiff’s
16

spine. (Filing No. 43-1 at CM/ECF p. 83.) Plaintiff was also referred for a physical
therapy evaluation. (Filing No. 43-1 at CM/ECF p. 83.)
72. On March 29, 2017, custom molded foot orthotics were issued to
Plaintiff. (Filing No. 43-1 at CM/ECF pp. 81, 84.)
73. On April 3, 2017, Plaintiff received an X-ray of his lumbar spine in
which no evidence of fracture or subluxation was observed; vertebral body heights
and intervertebral disc spaces were maintained; sacroiliac joints were normal in
appearance; and soft tissue were unremarkable. (Filing No. 43-1 at CM/ECF pp. 8586.)
74. On April 7, 2017, Plaintiff was scheduled and received an MRI of his
lumbar spine. (Filing No. 43-1 at CM/ECF p. 88.)
75. On April 7, 2017, Plaintiff’s prescription of Gabapentin was renewed.
(Filing No. 43-1 at CM/ECF p. 88.)
76. On April 14, 2017, Defendant P.A. Dan Danaher renewed Plaintiff’s
prescription for Methocarbamol for 60 days. (Filing No. 43-1 at CM/ECF p. 89.)
77. On April 19, 2017, Plaintiff met with P.A. Wenzel to discuss Plaintiff’s
MRI. (Filing No. 43-1 at CM/ECF p. 90.) P.A. Wenzel noted Plaintiff was already
on Tramadol 100 mg three times per day, Ibuprofen three times per day, and
Gabapentin 900 mg two times per day. (Filing No. 43-1 at CM/ECF p. 90.) P.A.
Wenzel increased Plaintiff’s Gabapentin prescription to 1200 mg. (Filing No. 43-1
at CM/ECF p. 90.)
78. Dr. Hustad renewed Plaintiff’s prescription for Tramadol 50 mg, two
tablets, three times per day, starting on May 3, 2017. (Filing No. 43-1 at CM/ECF p.
91.)

17

79. On May 23, 2017, Plaintiff failed to attend his appointment at the
chronic care clinic to discuss knee pain. (Filing No. 43-1 at CM/ECF p. 92.)
80. On June 6, 2017, P.A. Danaher met with Plaintiff after complaints of
foot, knee, elbow, and back pain. (Filing No. 43-1 at CM/ECF pp. 95-98.) P.A.
Danaher noted Plaintiff was taking 100 mg Tramadol, 1200 mg Gabapentin, and 800
mg Motrin. (Filing No. 43-1 at CM/ECF p. 96.) Plaintiff said that he was in “severe
pain” in his low-back since 2012 and is still in pain and that it was difficult to do
anything. (Filing No. 43-1 at CM/ECF p. 95.) P.A. Danaher expressed to Plaintiff
that if the “current meds [have] no benefit we should discontinue.” (Filing No. 43-1
at CM/ECF p. 96.) Plaintiff became defensive and stated those medications “help a
little.” (Filing No. 43-1 at CM/ECF p. 96.) Following his exam of Plaintiff, P.A.
Danaher noted that he did not see any indication for additional pain medications and
that “NSAIDs” were most appropriate. (Filing No. 43-1 at CM/ECF p. 97.) P.A.
Danaher also questioned the benefits of muscle relaxants for what was found on the
MRI. (Filing No. 43-1 at CM/ECF p. 98.)
81. On June 20, 2017, P.A. Danaher met with Plaintiff regarding low back
pain and foot pain. (Filing No. 43-1 at CM/ECF p. 98.) Plaintiff indicated he wanted
stronger pain medication; specifically, an increase in Tramadol. (Filing No. 43-1 at
CM/ECF p. 98.) P.A. Danaher noted he would be hesitant to increase his current
pain medication and that Plaintiff should be prepared to taper off Tramadol. (Filing
No. 43-1 at CM/ECF p. 99.) P.A. Danaher discussed physical therapy and modifying
Plaintiff’s activity. (Filing No. 43-1 at CM/ECF p. 99.)
82. On July 2, 2017, Plaintiff met with medical complaining of right hand
discomfort. (Filing No. 43-1 at CM/ECF p. 100.) Notes indicate that his left hand
was slightly swollen his hand grasps were strong and equal to both hands. (Filing
No. 43-1 at CM/ECF p. 100.) Plaintiff was given an ice bag and informed he should
alert staff if any further issues arose. (Filing No. 43-1 at CM/ECF p. 100.)

18

83. On July 18, 2017, Plaintiff failed to show for his scheduled appointment
regarding foot pain. (Filing No. 43-1 at CM/ECF p. 101.)
84. On July 24, 2017, Plaintiff missed another scheduled appointment
regarding his foot pain. (Filing No. 43-1 at CM/ECF p. 102.)
85. On July 25, 2017, P.A. Danaher refilled Plaintiff’s Tramadol 50 mg
prescription. (Filing No. 43-1 at CM/ECF p. 103.)
86. On July 31, 2017, Plaintiff failed to show for his scheduled appointment
regarding joint pain. (Filing No. 43-1 at CM/ECF p. 104.)
87. On August 3, 2017, Plaintiff saw medical after Plaintiff stated he hit
elbows against a railing on the stairs. (Filing No. 43-1 at CM/ECF p. 105.) After
medical examined Plaintiff, he was provided with two ACE bandage wraps. (Filing
No. 43-1 at CM/ECF pp. 105, 107.)
88. On August 3, 2017, Plaintiff was given a “Notice of Medical LayIn/Limited Activity” in which he was restricted from lifting greater than 20 pounds
and from engaging in contact or non-contact sports such as weightlifting, basketball,
handball, etc. (Filing No. 43-1 at CM/ECF p. 106.) This activity restriction was
designated to last until December 3, 2017. (Filing No. 43-1 at CM/ECF p. 106.)
89. On August 7, 2017, Plaintiff was seen by an outside orthopedic
specialist regarding his foot pain. (Filing No. 43-1 at CM/ECF pp. 108-09.) The
outside provider noted Plaintiff was currently taking, among other medications,
Gabapentin 300 mg and Tramadol 50 mg. (Filing No. 43-1 at CM/ECF p. 108.) The
provider noted, “I would encourage [Plaintiff] to talk to the medical personnel there
about possibly switching him from [G]abapentin to Lyrica or if possible increase the
dose of his Gabapentin” for his foot pain. (Filing No. 43-1 at CM/ECF p. 109.)

19

90. On August 14, 2017, P.A. Danaher saw Plaintiff regarding allergies and
elbow pain. (Filing No. 43-1 at CM/ECF p. 110.) P.A. Danaher noted the outside
provider’s recommendation for a trial of Lyrica for peripheral neuropathy. (Filing
No. 43-1 at CM/ECF p. 110.) P.A. Danaher noted Plaintiff was already on
Gabapentin and Tramadol. (Filing No. 43-1 at CM/ECF p. 110.)
91. On August 28, 2017, P.A. Danaher saw Plaintiff for foot pain and
increased frequency in urination. (Filing No. 43-1 at CM/ECF pp. 112-14.) P.A.
Danaher noted Plaintiff was already taking Tramadol and Gabapentin 1200 mg three
times a day (3600 mg total). (Filing No. 43-1 at CM/ECF p. 112, 114.) Plaintiff
stated that those medications and orthotics were of no benefit for his feet. (Filing
No. 43-1 at CM/ECF p. 112.) P.A. Danaher renewed prescription for Motrin and
started him on Pyridoxine. (Filing No. 43-1 at CM/ECF p. 114.)
92. On August 28, 2017, P.A. Danaher rescinded Plaintiff’s “Medical
Limited Activity” pass because Plaintiff was seen playing handball. (Filing No. 431 at CM/ECF p. 115.)
93. On August 31, 2017, P.A. Danaher discussed with Plaintiff that he had
watched him play handball on August 28, 2017 at a high level. (Filing No. 43-1 at
CM/ECF p. 116.) Plaintiff acknowledged that he had in fact played handball. (Filing
No. 43-1 at CM/ECF p. 116.) P.A. Danaher stated he would be tapering Plaintiff off
his Tramadol, noting that “someone [who] could play hand ball at the level [he] saw
[Plaintiff] [playing] on [August 28, 2017] should not be on Tramadol or other
narcotic medications to treat pain.” (Filing No. 43-1 at CM/ECF p. 116.) P.A.
Danaher informed Plaintiff he would continue his Gabapentin, but he would not
agree to Plaintiff playing handball on this medication. (Filing No. 43-1 at CM/ECF
p. 116.) P.A. Danaher informed Plaintiff that, in his opinion, the Gabapentin and
Ibuprofen would be sufficient and that he should avoid activities that caused
increased pain. (Filing No. 43-1 at CM/ECF p. 117.)

20

94. On August 31, 2017, PA-C Danaher ordered (1) Plaintiff’s activity
restrictions cancelled, (2) a step-down tapering of Tramadol, (3) Gabapentin and
Ibuprofen to be continued, and (4) modified activities with no sports or weightlifting.
(Filing No. 43-1 at CM/ECF p. 117.) P.A. Danaher had discussed this plan with Dr.
Hustad the previous day. (Filing No. 43-1 at CM/ECF p. 117.)
95. On September 11, 2017, Plaintiff failed to show for his scheduled
medical appointment. (Filing No. 43-1 at CM/ECF p. 118.)
96. On October 2, 2017, P.A. Danaher met with Plaintiff to discuss his foot
pain. (Filing No. 43-1 at CM/ECF p. 120.)
97. On October 3, 2017, P.A. Danaher discussed with Dr. Kasselman
possibilities for chronic pain management for Plaintiff. (Filing No. 43-1 at CM/ECF
p. 121.) Dr. Kasselman recommended lab tests to evaluate if monthly B12 injections
would be beneficial. (Filing No. 43-1 at CM/ECF p. 121.)
98. On October 16, 2017, Plaintiff received a lower bunk pass assignment
for 365 days. (Filing No. 43-1 at CM/ECF p. 119.)
99. On October 18, 2017, Plaintiff refused the lab draw. (Filing No. 43-1 at
CM/ECF p. 122.)
100. On October 19, 2017, Plaintiff refused the lab draw again. (Filing No.
43-1 at CM/ECF p. 122.)
101. On November 2, 2017, P.A. Danaher met with Plaintiff to discuss labs
and pain management. (Filing No. 43-1 at CM/ECF pp. 123-24.) P.A. Danaher
ordered 1200 mg Gabapentin to be continued but indicated it would eventually
decrease to two times per day. (Filing No. 43-1 at CM/ECF p. 124.) P.A. Danaher
offered Plaintiff a B12 injection and to be evaluated by Dr. Kasselman, and Plaintiff
agreed to both. (Filing No. 43-1 at CM/ECF p. 124.)
21

102. On November 7, 2017, Plaintiff received an X-ray after reporting
headaches. (Filing No. 43-1 at CM/ECF p. 125.) No definite radiographic
explanation for headaches was found. (Filing No. 43-1 at CM/ECF p. 125.)
103. On November 16, 2017, Dr. Hustad met with Plaintiff to discuss issues
with rectal bleeding, neuropathic pain in his feet, and pain radiating from his neck
into his hand. (Filing No. 43-1 at CM/ECF pp. 126-27.) Dr. Hustad noted Plaintiff
“continues to do a lot of exercises working on ‘a monkey bar.’” (Filing No. 43-1 at
CM/ECF p. 126.) Dr. Hustad noted Plaintiff has “excellent strength of upper
extremities and grip bilaterally” and has “[n]o motor weakness.” (Filing No. 43-1 at
CM/ECF p. 126.) Dr. Hustad instructed Plaintiff to discontinue working out with a
monkey bar or performing pull-ups. (Filing No. 43-1 at CM/ECF p. 127.) Dr. Hustad
made a note to discuss Plaintiff’s medications with P.A. Danaher. (Filing No. 43-1
at CM/ECF p. 127.)
104. On December 7, 2017, Plaintiff was seen by Dr. Kasselman at the pain
clinic. (Filing No. 43-1 at CM/ECF p. 128.) P.A. Danaher ordered Gabapentin be
tapered off and discontinued and prescribed a muscle relaxer (Flexeril) for three
weeks and Indocin 25 mg twice per day. (Filing No. 43-1 at CM/ECF p. 128.)
105. On December 15, 2017, Plaintiff received a medical equipment pass for
“hot packs.” (Filing No. 43-1 at CM/ECF p. 129.)
106. On December 18, 2017, P.A. Danaher met with Plaintiff to discuss pain
management and trigger point injections to help treat his pain. (Filing No. 43-1 at
CM/ECF pp. 130-32.) Plaintiff expressed that he was upset his prescription for
Gabapentin was being discontinued. (Filing No. 43-1 at CM/ECF p. 131.) P.A.
Danaher noted Plaintiff claimed to have continuous pain throughout his body (feet,
back, elbows, etc.) while on the maximum dose of Gabapentin and this was why Dr.
Kasselman recommended “he come off the Gabapentin.” (Filing No. 43-1 at
CM/ECF p. 131.) P.A. Danaher instead offered Plaintiff Indomethacin for pain as
22

Dr. Kasselman recommended. (Filing No. 43-1 at CM/ECF p. 131.) Plaintiff agreed
to take it. (Filing No. 43-1 at CM/ECF p. 131.) P.A. Danaher informed Plaintiff they
probably would never be able to make him completely pain free but could provide
some comfort with their treatment plans. (Filing No. 43-1 at CM/ECF p. 131.)
Plaintiff agreed to try trigger point injections. (Filing No. 43-1 at CM/ECF p. 131.)
107. On December 21, 2017, prior to signing the consent for his injections,
Plaintiff and P.A. Danaher met to discuss the injections. (Filing No. 43-1 at CM/ECF
p. 133.) Plaintiff and P.A. Danaher went into an exam room, and P.A. Danaher
reviewed with Plaintiff his X-rays from December 19, 2017. (Filing No. 43-1 at
CM/ECF p. 133.) Plaintiff became argumentative when P.A. Danaher informed
Plaintiff that his newly alleged mid-back pain was not consistent with the X-ray
findings. (Filing No. 43-1 at CM/ECF p. 133.) Plaintiff responded that P.A. Danaher
did not know what he was doing. (Filing No. 43-1 at CM/ECF p. 133.) P.A. Danaher
responded by saying medical had been addressing multiple pain issues with Plaintiff
regarding his back, elbows, feet, and headaches. (Filing No. 43-1 at CM/ECF p.
133.) Plaintiff began to curse and “got out of chair without difficulty and walked out
of exam room.” (Filing No. 43-1 at CM/ECF p. 134.)
108. On December 27, 2017, P.A. Danaher and Dr. Hustad prescribed
Cyclobenzaprine 10 mg twice daily for pain. (Filing No. 43-1 at CM/ECF p. 135.)
109. On January 11, 2018, Plaintiff was admitted to the skilled nursing
facility at DEC after reporting he “twisted and heard [a] ‘loud pop’” in the middle
of his back and passed out. (Filing No. 43-1 at CM/ECF p. 137.) Plaintiff received
an intramuscular injection of Toradol 60 mg for the pain. (Filing No. 43-1 at
CM/ECF p. 138.) Dr. Hustad recommended continued bedrest through the weekend,
but Plaintiff refused because he had a family visit scheduled. (Filing No. 43-1 at
CM/ECF p. 139.)
110. On January 12, 2018, Plaintiff was examined by Dr. Hustad and
received an X-ray which revealed that his mild anterior wedging of T11 was
23

unchanged from prior exams and that there was no acute osseous abnormality or
malalignment elsewhere in the thoracic spine. (Filing No. 43-1 at CM/ECF p. 140.)
111. On January 12, 2018, Plaintiff received a “Medical Limited Activity”
pass which restricted physical exertion, lifting greater than 0 pounds, and contact
and non-contact sports. (Filing No. 43-1 at CM/ECF p. 142.)
112. On January 18, 2018, Plaintiff met with medical about his back pain.
(Filing No. 43-1 at CM/ECF p. 143.) Plaintiff stated Gabapentin “did help but did
not ‘cure [the] problem.’” (Filing No. 43-1 at CM/ECF p. 143.)
113. On February 2, 2018, P.A. Danaher met with Plaintiff to discuss back
and foot pain, as well as wrist pain after he allegedly fell on the ice on January 29,
2018. (Filing No. 43-1 at CM/ECF p. 144.) Plaintiff indicated he was not taking his
psych meds except for Hydroxyzine. (Filing No. 43-1 at CM/ECF p. 144.) Plaintiff
stated he was not receiving any benefit from his prescription of Flexeril for pain.
(Filing No. 43-1 at CM/ECF p. 145.) P.A. Danaher offered to switch him to Robaxin,
but Plaintiff declined. (Filing No. 43-1 at CM/ECF p. 145.) P.A. Danaher offered
NSAIDs and named various types for Plaintiff: Motrin, Naproxen, Indocin, Mobic.
(Filing No. 43-1 at CM/ECF p. 145.) Plaintiff stated that none of these medications
helped him in the past. (Filing No. 43-1 at CM/ECF p. 145.) Plaintiff reiterated that
the only medications that have helped his pain are Gabapentin and Tramadol. (Filing
No. 43-1 at CM/ECF p. 145.) Plaintiff went on to repeat his previous injuries over
the years causing his chronic pain. (Filing No. 43-1 at CM/ECF p. 145.) P.A.
Danaher explained that this was unfortunate, but narcotics were not the answer.
(Filing No. 43-1 at CM/ECF p. 145.) P.A. Danaher explained that he had discussed
Plaintiff’s chronic pain management with Plaintiff’s psychiatrist, Dr. Howard, and
that he could schedule Plaintiff for a follow-up with Dr Kasselman. (Filing No. 431 at CM/ECF p. 145.) Plaintiff stated again that Tramadol and Gabapentin would be
the only prescription that would help him. (Filing No. 43-1 at CM/ECF p. 145.) P.A.
Danaher informed Plaintiff that he would not prescribe either. (Filing No. 43-1 at
CM/ECF p. 145.) P.A. Danaher noted that during his discussion with Plaintiff, he
24

did not appear in any distress, was moving his wrists and hands freely, and was
making gestures without signs of pain or limitation. (Filing No. 43-1 at CM/ECF p.
146.) P.A. Danaher also noted Plaintiff walked in and sat down without evidence of
limitation or distress. (Filing No. 43-1 at CM/ECF p. 146.) Upon leaving his
appointment, Plaintiff used both hands to push off the chair arms without any
problems. (Filing No. 43-1 at CM/ECF p. 146.)
114. On February 15, 2018, Plaintiff met with Psychiatrist Dr. Howard and
changed his prescription to Abilify for depression. (Filing No. 43-1 at CM/ECF p.
147.) Plaintiff did not complain about pain during the visit with Dr. Howard until
she asked him about it. (Filing No. 43-1 at CM/ECF p. 147.) Dr. Howard
recommended mental health therapy to help deal with chronic pain issues. (Filing
No. 43-1 at CM/ECF p. 147.)
115. On February 15, 2018, Plaintiff met with Dr. Kasselman for a pain
clinic consultation. (Filing No. 43-1 at CM/ECF p. 148.) Plaintiff informed Dr.
Kasselman he had a five-year-old wedge compression that was causing his pain.
(Filing No. 43-1 at CM/ECF p. 148.) Plaintiff also claimed his wrist was dislocated.
(Filing No. 43-1 at CM/ECF p. 148.) Plaintiff complained of receiving inadequate
care. (Filing No. 43-1 at CM/ECF p. 148.) Dr. Kasselman noted Plaintiff’s
complaints did not correlate with any physical findings. (Filing No. 43-1 at CM/ECF
p. 148.) Plaintiff complained of something “moving” in his back. (Filing No. 43-1
at CM/ECF p. 148.) When Dr. Kasselman explained possible sources, Plaintiff
became belligerent. (Filing No. 43-1 at CM/ECF p. 148.) Dr. Kasselman could not
find any obvious sources of Plaintiffs “10/10” reported pain. (Filing No. 43-1 at
CM/ECF p. 148.) Plaintiff refused the solutions Dr. Kasselman offered, but
requested Gabapentin, Lyrica, or narcotics. (Filing No. 43-1 at CM/ECF p. 148.) Dr.
Kasselman offered physical therapy, trigger point injections, and NSAIDs. (Filing
No. 43-1 at CM/ECF p. 148.) Plaintiff refused everything and left angrily. (Filing
No. 43-1 at CM/ECF p. 148.) Plaintiff was instructed to submit an IIR if he wanted
to have injections. (Filing No. 43-1 at CM/ECF p. 147.) Plaintiff declined NSAIDs.
(Filing No. 43-1 at CM/ECF p. 147.)
25

116. On March 7, 2018, Plaintiff received an X-ray on his left wrist. (Filing
No. 43-1 at CM/ECF p. 149.) No acute fracture or dislocation of the left wrist was
observed. (Filing No. 43-1 at CM/ECF p. 149.)
117. On March 7, 2018, Plaintiff submitted an IIR to try Meloxicam for his
pain. (Filing No. 43-1 at CM/ECF p. 150.) Medical ordered it for him. (Filing No.
43-1 at CM/ECF p. 150.)
118. On March 23, 2018, P.A. Danaher saw Plaintiff regarding pain in his
wrists. (Filing No. 43-1 at CM/ECF p. 151.) Plaintiff stated he wanted a second
opinion for his chronic pain. (Filing No. 43-1 at CM/ECF p. 151.) P.A. Danaher
informed Plaintiff he would present it to the NDCS medical review committee.
(Filing No. 43-1 at CM/ECF p. 152.) Plaintiff also requested a “lay-in” from his job.
(Filing No. 43-1 at CM/ECF p. 151.) P.A. Danaher agreed to give Plaintiff a pass
for limited activity for 60 days. (Filing No. 43-1 at CM/ECF p. 152.) This pass
excused Plaintiff from standing for lengthy periods, lifting anything exceeding 10
pounds, performing any work above his head, and pushing or pulling; the pass also
ordered minimized wrist activities. (Filing No. 43-1 at CM/ECF p. 152.)
119. On March 29, 2018, P.A. Danaher noted that he had Plaintiff on a list
to be seen by Dr. Kasselman for a reevaluation and that he would present Plaintiff’s
issues at the next provider meeting. (Filing No. 43-1 at CM/ECF p. 153.)
120. On April 12, 2018, Dr. Kasselman saw Plaintiff at the pain clinic.
(Filing No. 43-1 at CM/ECF p. 154.) After examination, Dr. Kasselman ordered
Naproxen 500 mg for pain. (Filing No. 43-1 at CM/ECF p. 154.) P.A. Danaher
ordered activity restrictions to include limited bending, stooping, pushing and
pulling, not lifting greater than 20 pounds, no sports activity, and limited repetitive
movements. (Filing No. 43-1 at CM/ECF p. 154.) This activity restriction was
prescribed for one year. (Filing No. 43-1 at CM/ECF p. 154.)

26

121. On May 21, 2018, Plaintiff submitted an IIR requesting to try
Indomethacin for pain. (Filing No. 43-1 at CM/ECF p. 155.) On May 24, 2018, P.A.
Danaher ordered the Indomethacin and informed Plaintiff to stop the Naproxen.
(Filing No. 43-1 at CM/ECF p. 155.)
122. On May 30, 2018, Plaintiff received a “Medical Limited Activity” pass
restricting Plaintiff from standing for periods longer than 30 minutes, lifting
anything greater than 20 pounds, bending or stooping, participating in contact or
non-contact sports, and performing repetitive movements of the upper extremities.
(Filing No. 43-1 at CM/ECF p. 156.)
123. On June 8, 2018, P.A. Danaher met with Plaintiff for hand, foot, and
back pain. (Filing No. 43-1 at CM/ECF p. 157-58.) Plaintiff said he did not receive
any benefit from Duloxetine. (Filing No. 43-1 at CM/ECF p. 157.) P.A. Danaher
noted Plaintiff was currently on Flexeril 50 mg, but Plaintiff said it was not helping
with the pain. (Filing No. 43-1 at CM/ECF p. 157.) P.A. Danaher noted that during
the exam, Plaintiff did not appear in distress, ambulated to exam room without
difficulty, sat and stood without problem, removed shoes and socks without
difficulty, and showed no signs of discomfort. (Filing No. 43-1 at CM/ECF p. 158.)
P.A. Danaher noted that he would email Plaintiff’s psychiatrist, Dr. Anit, APRN
Chipendo, and Dr. Hustad regarding a joint consultation to meet with Plaintiff and
discuss chronic pain management. (Filing No. 43-1 at CM/ECF p. 158.)
124. On June 14, 2018, P.A. Danaher, Dr. Hustad, Dr. Anit, APRN
Chipendo, and RN Wright met to discuss Plaintiff’s pain management. (Filing No.
43-1 at CM/ECF p. 159.) During this meeting, Plaintiff’s chart was reviewed with
specific reference to Dr. Kasselman’s notes. (Filing No. 43-1 at CM/ECF p. 159.)
This team noted Plaintiff had seen mental health providers regarding issues with
anxiety and chronic pain. (Filing No. 43-1 at CM/ECF p. 159.) Plaintiff had been
treated with different medications and reported no benefit. (Filing No. 43-1 at
CM/ECF p. 159.) The team discussed recommendations for future treatment,
including: (1) referral to mental health for evaluation for chronic pain management
27

and Cognitive Behavioral Therapy; (2) discuss physical therapy; (3) offer NSAIDs;
and (4) meet with Dr. Anit and discuss psychiatric treatment. (Filing No. 43-1 at
CM/ECF p. 159.)
125. On June 21, 2018, Plaintiff’s prescription for Amitriptyline was
discontinued because Plaintiff was not taking it. (Filing No. 43-1 at CM/ECF p. 160.)
126. On June 22, 2018, Plaintiff requested a refill of Indomethacin, which
was immediately ordered. (Filing No. 43-1 at CM/ECF p. 161.)
127. On July 24, 2018, Plaintiff was to be seen by Dr. Kasselman at the pain
clinic. (Filing No. 43-1 at CM/ECF p. 162.) Dr. Kasselman expressed concern that
Plaintiff exhibited drug seeking behavior but noted that Plaintiff had tried other
conservative measures for pain management. (Filing No. 43-1 at CM/ECF p. 162.)
Dr. Kasselman ordered a trial of Gabapentin no higher than 800 mg twice a day.
(Filing No. 43-1 at CM/ECF p. 162.) Dr. Kasselman informed Plaintiff that the trial
was conditioned upon his compliance with medical and lab draws. (Filing No. 43-1
at CM/ECF p. 162.) Dr. Kasselman ordered that Gabapentin levels be tested in two
weeks. (Filing No. 43-1 at CM/ECF p. 162.)
128. On July 24, 2018, Plaintiff informed P.A. Danaher that Plaintiff’s
custom orthotics were taken by custody staff and were never returned. (Filing No.
43-1 at CM/ECF p. 163.) P.A. Danaher made a note to the Deputy Warden that the
orthotics should be reissued to Plaintiff. (Filing No. 43-1 at CM/ECF p. 163.)
129. On August 1, 2018, Plaintiff had a medical appointment for oral and
facial surgery from an outside medical provider. (Filing No. 43-1 at CM/ECF p.
164.)
130. On August 1, 2018, Plaintiff submitted an IIR complaining his right
hand was in pain with arthritis. (Filing No. 43-1 at CM/ECF p. 165.) The next day,
on August 2, 2018, P.A. Danaher informed Plaintiff that he reordered Indomethacin
28

to take as needed for pain and would order X-rays. (Filing No. 43-1 at CM/ECF p.
165.)
131. On August 16, 2018, Plaintiff received an X-ray of his right hand.
(Filing No. 43-1 at CM/ECF p. 166.) No acute fracture or destructive lesion was
identified. (Filing No. 43-1 at CM/ECF p. 166.) Chronic findings appeared to be
posttraumatic with no acute abnormalities observed. (Filing No. 43-1 at CM/ECF p.
166.)
132. On August 31, 2018, P.A. Danaher saw Plaintiff for wrist, hand, and
back pain. (Filing No. 43-1 at CM/ECF p. 167.) Plaintiff said he had “a little benefit”
with the Gabapentin, but still in pain. (Filing No. 43-1 at CM/ECF p. 167.) Plaintiff
made no mention of his back or leg pain during the visit. (Filing No. 43-1 at CM/ECF
p. 168.) Based upon lab results, P.A. Danaher expressed concern that Plaintiff was
not taking his prescription of Gabapentin as directed. (Filing No. 43-1 at CM/ECF
p. 169.) Plaintiff stated he was taking it regularly. (Filing No. 43-1 at CM/ECF p.
169.) P.A. Danaher noted Plaintiff had not filled his prescription for Indocin since
June of 2018. (Filing No. 43-1 at CM/ECF p. 169.) When asked about this, Plaintiff
said it caused gastrointestinal side effects. (Filing No. 43-1 at CM/ECF p. 169.) P.A.
Danaher reviewed with Plaintiff other NSAIDs available. (Filing No. 43-1 at
CM/ECF p. 169.) Plaintiff requested Ibuprofen. (Filing No. 43-1 at CM/ECF p. 169.)
P.A. Danaher asked if Plaintiff had been involved in Cognitive Behavioral Therapy,
and Plaintiff reported that he had not. (Filing No. 43-1 at CM/ECF p. 169.) Plaintiff
stated that mental health told him about TENS therapy, but P.A. Danaher informed
Plaintiff that it would only be provided through physical therapy. (Filing No. 43-1
at CM/ECF p. 169.) P.A. Danaher also noted Plaintiff was on Topamax which was
being used for chronic pain management. (Filing No. 43-1 at CM/ECF p. 169.) P.A.
Danaher noted Plaintiff did not appear to be in any distress during the visit. (Filing
No. 43-1 at CM/ECF p. 170.) Plaintiff walked, stood, and sat without difficulty.
(Filing No. 43-1 at CM/ECF p. 170.) P.A. Danaher ordered Ibuprofen and the
discontinuation of Indocin. (Filing No. 43-1 at CM/ECF p. 170.) P.A. Danaher noted
that Gabapentin would be continued, even though low therapeutic levels were found
29

in his labs. (Filing No. 43-1 at CM/ECF p. 170.) New levels would be taken in three
weeks. (Filing No. 43-1 at CM/ECF p. 170.) P.A. Danaher encouraged Plaintiff to
discuss chronic pain management with mental health. (Filing No. 43-1 at CM/ECF
p. 170.)
133. On August 31, 2018, medical gave Plaintiff a medical equipment pass
for a wrist brace. (Filing No. 43-1 at CM/ECF p. 171.)
134. On September 10, 2018, P.A. Danaher met with Plaintiff to discuss his
September 7, 2018 IIR requesting support stockings to help with his neuropathy.
(Filing No. 43-1 at CM/ECF p. 172.) Because there were no contraindications for
Thrombo-Embolic Deterrent (TED) stockings, and because Plaintiff believed it
would be beneficial for his neuropathy, P.A. Danaher agreed to prescribe the
stockings. (Filing No. 43-1 at CM/ECF pp. 172-73.) P.A. Danaher instructed
Plaintiff on the TED stocking application and use. (Filing No. 43-1 at CM/ECF p.
172.)
135. On October 17, 2018, Dr. Kasselman saw Plaintiff at the pain clinic.
(Filing No. 43-1 at CM/ECF p. 174.) Dr. Kasselman ordered Plaintiff’s prescription
for Ibuprofen be increased to 800 mg. (Filing No. 43-1 at CM/ECF p. 174.)
136. On October 30, 2018, while walking down a hallway at LCC, P.A.
Danaher looked out a window to the internal exercise yard where he saw Plaintiff
doing hyper extension sit-ups at the sit-up station. (Filing No. 43-1 at CM/ECF p.
175.) Plaintiff did at least five sit-ups without evidence of distress. (Filing No. 43-1
at CM/ECF p. 175.) P.A. Danaher then saw Plaintiff do full body arm lifts at a
separate station. (Filing No. 43-1 at CM/ECF p. 175.) Plaintiff did five body lifts
then moved back to the sit-up station where Plaintiff did at least five more
hyperextension sit-ups without distress. (Filing No. 43-1 at CM/ECF p. 175.)
137. On November 5, 2018, Plaintiff failed to attend his scheduled medical
appointment. (Filing No. 43-1 at CM/ECF p. 176.)
30

138. On November 18, 2018, P.A. Danaher confronted Plaintiff during a
medical appointment about seeing Plaintiff exercising on the weight yard doing
hyperextension sit-ups and body lifts. (Filing No. 43-1 at CM/ECF pp. 176, 177.)
Plaintiff did not deny doing the exercises and explained he was trying to increase
exercise to lower his sugar levels. (Filing No. 43-1 at CM/ECF pp. 176, 177.) P.A.
Danaher explained to Plaintiff he was concerned about Plaintiff’s pain complaints
while he was engaging in activities that aggravated his problems, and Plaintiff
replied, “I know.” (Filing No. 43-1 at CM/ECF pp. 177-78.)
139. On November 19, 2018, Plaintiff was seen in the exercise yard doing
butterfly and upper-body workouts with heavy weights without evidence of distress.
(Filing No. 43-1 at CM/ECF p. 179.)
140. On March 6, 2019, Plaintiff underwent surgery to address septal
deviation and sinusitis. (Filing No. 43-1 at CM/ECF p. 180.)
141. On March 7, 2019, Plaintiff received a Medical Limited Activity pass
which restricted physical exertion, standing for periods longer than 10 minutes,
lifting anything greater than 0 pounds, bending or stooping, participating in contact
or non-contact sports (including weightlifting, basketball, and handball), heavy
lifting, and vigorous activities for two weeks. (Filing No. 43-1 at CM/ECF p. 181.)
142. On March 18, 2019, Plaintiff was seen by multiple NDCS staff,
including P.A. Danaher, in the exercise yard engaging in strenuous exercises,
including doing butterfly-type repetitions on a weight machine with fairly heavy
weights with a spotter assisting him, doing twenty repetitions at a time on the bench
press machine for approximately twenty minutes, and doing approximately ten
repetitions at a time of push-ups/burpees. (Filing No. 43-1 at CM/ECF pp. 183-86,
190.) Plaintiff did not appear in any pain or distress while doing these exercises.
(Filing No. 43-1 at CM/ECF pp. 183-86, 190.)

31

143. On March 19, 2019, Plaintiff was seen in the exercise yard lifting
weights on the leg press machine doing approximately 10-15 repetitions at a time.
(Filing No. 43-1 at CM/ECF pp. 186-88.) Plaintiff was also using a weight machine
which caused him to bend and twist using his shoulders, back, and arms. (Filing No.
43-1 at CM/ECF pp. 186-88.) Plaintiff was seen doing this with full range of motion
without any difficulty. (Filing No. 43-1 at CM/ECF pp. 186-88.)
144. On March 21, 2019, P.A. Danaher watched Plaintiff in the exercise yard
doing multiple repetitions on weight machines with a fairly large amount of weight.
(Filing No. 43-1 at CM/ECF p. 190.) After he completed his repetitions, Plaintiff
jumped up and walked around briskly without any distress. (Filing No. 43-1 at
CM/ECF p. 190.)
145. On March 22, 2019, P.A. Danaher saw from the medical clinic window
Plaintiff engaging in weightlifting with multiple repetitions on an arm machine.
(Filing No. 43-1 at CM/ECF p. 191.)
146. On April 5, 2019, Plaintiff failed to show for his scheduled medical
appointment. (Filing No. 43-1 at CM/ECF p. 191.) P.A. Danaher observed Plaintiff
in the exercise yard lifting weights during the time he was scheduled for his
appointment. (Filing No. 43-1 at CM/ECF p. 191.)
147. On April 12, 2019, P.A. Danaher met with Plaintiff for a medical
appointment regarding pain from (1) ganglions in wrist, (2) fracture in T11, and (3)
neuropathy in feet. (Filing No. 43-1 at CM/ECF p. 192.) Plaintiff walked in and sat
down in the exam room without apparent distress. (Filing No. 43-1 at CM/ECF p.
192.) P.A. Danaher informed Plaintiff that he watched Plaintiff in the exercise yard
the previous week doing a strenuous work out without apparent distress from his
wrists, back, or feet. (Filing No. 43-1 at CM/ECF p. 192.) Plaintiff became defensive
and stated he “had to exercise for his diabetes.” (Filing No. 43-1 at CM/ECF p. 192.)
P.A. Danaher explained to Plaintiff that what he witnessed was “bodybuilding,
exercising very strenuously which [was] totally contradictory to his health and
32

extremely detrimental to the health issues he [was] complaining about.” (Filing No.
43-1 at CM/ECF p. 192.) P.A. Danaher informed Plaintiff that he had multiple
incident reports that Plaintiff jogs and lifts weights in the gym and was on a
volleyball team. (Filing No. 43-1 at CM/ECF p. 192.) P.A. Danaher told Plaintiff
that he would not change his current medications and the best treatment plan is to
restrict his activity—meaning no gym, no yard, no weightlifting. (Filing No. 43-1 at
CM/ECF p. 192.) Plaintiff became argumentative and again reiterated he had to
exercise for his diabetes. (Filing No. 43-1 at CM/ECF p. 193.) P.A. Danaher
explained to Plaintiff that bodybuilding was not the proper exercise. (Filing No. 431 at CM/ECF p. 193.) Plaintiff confirmed to P.A. Danaher that he was not willing to
change his exercise routine. (Filing No. 43-1 at CM/ECF p. 193.) Plaintiff then asked
if P.A. Danaher would send him to a specialist for his ganglions and foot pain. (Filing
No. 43-1 at CM/ECF p. 193.) P.A. Danaher responded that it was not clinically
indicated and that he needed to stop such strenuous exercises, volleyball, and other
sports so that his pain would improve. (Filing No. 43-1 at CM/ECF p. 193.) Plaintiff
left the exam room without any apparent distress. (Filing No. 43-1 at CM/ECF p.
193.)
III. STANDARD OF REVIEW
“The court shall grant summary judgment if the movant 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 movant bears the initial responsibility of
informing the court of the basis for the motion and must identify those portions of
the record which the movant believes demonstrate the absence of a genuine issue of
material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc). If the movant does so, the nonmovant must respond by submitting
evidentiary materials that set out specific facts showing that there is a genuine issue
for trial. Id.
On a motion for summary judgment, facts must be viewed in the light most
favorable to the nonmoving party only if there is a genuine dispute as to those facts.
33

Id. Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the evidence are jury functions, not those of a judge. Id.
But the nonmovant must do more than simply show that there is some metaphysical
doubt as to the material facts. Id. In order to show that disputed facts are material,
the party opposing summary judgment must cite to the relevant substantive law in
identifying facts that might affect the outcome of the suit. Quinn v. St. Louis County,
653 F.3d 745, 751 (8th Cir. 2011).
The mere existence of a scintilla of evidence in support of the nonmovant’s
position will be insufficient; there must be evidence on which the jury could
conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656
F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead
a rational trier of fact to find for the nonmoving party, there is no genuine issue for
trial. Torgerson, 643 F.3d at 1042.
IV. DISCUSSION
A. Deliberate Indifference to Serious Medical Needs
To prevail on an Eighth Amendment claim, Plaintiff must prove that
Defendants acted with deliberate indifference to his serious medical needs. See
Estelle v. Gamble, 429 U.S. 97, 106 (1976). The deliberate-indifference standard
includes both an objective and a subjective component. Plaintiff must demonstrate
that (1) he suffered from objectively serious medical needs, and (2) Defendants knew
of, but deliberately disregarded, those needs. See Jolly v. Knudsen, 205 F.3d 1094,
1096 (8th Cir. 2000) (quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
1997)).
“For a claim of deliberate indifference, ‘the prisoner must show more than
negligence, more even than gross negligence, and mere disagreement with treatment
decisions does not rise to the level of a constitutional violation.’” Popoalii v. Corr.
Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008) (quoting Estate of Rosenberg v.
34

Crandell, 56 F.3d 35, 37 (8th Cir. 1995)); see also Bender v. Regier, 385 F.3d 1133,
1137 (8th Cir. 2004) (a prisoner’s mere disagreement with the course of his medical
treatment fails to state a claim against a prison physician for deliberate indifference
under the Eighth Amendment). Indeed, “[e]stablishing the subjective component of
a deliberate indifference claim requires showing ‘a mental state akin to criminal
recklessness.’” Ryan v. Armstrong, 850 F.3d 419, 425 (8th Cir. 2017) (quoting
Thompson v. King, 730 F.3d 742, 746–47 (8th Cir. 2013)).
“The plaintiff-inmate must clear a substantial evidentiary threshold to show
that the prison’s medical staff deliberately disregarded the inmate’s needs by
administering an inadequate treatment.” Meuir v. Greene Cnty. Jail Emps., 487 F.3d
1115, 1118 (8th Cir. 2007). The Eighth Circuit has held that prison medical
professionals do not act with deliberate indifference where they do not ignore a
prisoner’s complaints but exercise independent medical judgment and attempt to
treat them in a manner other than the precise manner the prisoner requests. See Allard
v. Baldwin, 779 F.3d 768, 772 (8th Cir. 2015) (granting summary judgment to
medical defendants who did not ignore inmate’s complaints, but saw inmate on
several occasions and tried numerous treatments); Logan v. Clarke, 119 F.3d 647,
649-50 (8th Cir. 1997) (prison doctors were not deliberately indifferent where they
treated prisoner on numerous occasions and offered sensible medication and
treatment).
The court finds that the undisputed material facts demonstrate that Defendants
were not deliberately indifferent to any serious medical needs of Plaintiff. To the
contrary, the facts show that from the time Plaintiff entered NDCS custody in March
2014 through the end of the time period under consideration, NDCS expended
significant resources in attempting to get to the root of Plaintiff’s chronic pain. He
was seen within NDCS a countless number of times by NDCS medical staff,
including P.A. Danaher, Dr. Hustad, and Dr. Kasselman. Plaintiff was referred on
several separate occasions to outside specialists, including orthopedic surgeons and
neurological and spinal surgeons for further evaluations and surgical consultations.
Plaintiff also was seen by Dr. Kasselman at the NDCS pain clinic. Numerous
35

diagnostic tests were run, including a number of X-rays and MRIs. Plaintiff has been
prescribed physical therapy, over-the-counter arch support insoles, special ordered
shoes, custom molded orthotics, TENS unit with wires and electrodes, and
thrombosis stockings to help alleviate his pain. In addition, while Plaintiff has been
in NDCS custody, the medical records indicate that Plaintiff was prescribed or
offered various medications for pain control, including Flexeril (cyclobenzaprine),
Tramadol, Gabapentin, Methocarbamol, Indomethacin, Naproxen, Ketorolac,
Amitriptyline, Meloxicam, Topamax, Pyriodoxine, Duloxetine, Mobic, Indocin,
Robaxin, B12 shots, and other anti-inflammatory medications. (Filing No. 43-5 at
CM/ECF p. at 2, ¶ 4.)
At least on a gross basis, this hardly smacks of deliberate indifference.
Plaintiff complains, however, that Defendants acted with deliberate
indifference when they prescribed Gabapentin for his pain, rather than Lyrica as was
recommended by an outside specialist, and when they tapered off and then
discontinued his prescription pain medication. Plaintiff further claims that, although
he was back on Gabapentin as of July 31, 2018, he is still in extreme pain and
medical is refusing to provide necessary medical treatment.
With respect to Plaintiff’s complaint that Defendants acted with deliberate
indifference when they did not prescribe him the specific pain medication
recommended by an outside specialist, the court disagrees. The record reflects that,
on August 7, 2017, an outside orthopedic specialist indicated that Plaintiff was
currently taking Gabapentin 300 mg and recommended that Plaintiff be prescribed
Lyrica or that his Gabapentin dosage be increased. Specifically, the provider noted:
“I would encourage [Plaintiff] to talk to the medical personnel there about possibly
switching him from [G]abapentin to Lyrica or if possible increase the dose of his
Gabapentin” for his foot pain. (Filing No. 43-1 at CM/ECF p. 109 (emphasis
added).) On August 28, 2017, P.A. Danaher saw Plaintiff and noted the specialist’s
recommendation and that Plaintiff was currently taking Gabapentin 1200 mg three
times a day (3600 mg total) in addition to Tramadol. Thus, the record indicates that
36

Plaintiff’s Gabapentin prescription either had been increased per the specialist’s
recommendation or was already at a higher dosage than what the specialist indicated.
Moreover, the decisions by P.A. Danaher, Dr. Hustad, and Dr. Kasselman not to
prescribe Lyrica were no more than mere disagreements with the course of treatment
prescribed, and not deliberate indifference. See Bender, 385 F.3d at 1137.
The undisputed facts further establish that the decisions and recommendations
of P.A. Danaher, Dr. Hustad, and Dr. Kasselman regarding Plaintiff’s pain
management, including tapering off and discontinuing Plaintiff’s prescription pain
medications, were clearly based on their independent medical judgment. See Long
v. Nix, 86 F.3d 761, 765 (8th Cir. 1996) (“[N]othing in the Eighth Amendment
prevents prison doctors from exercising their independent medical judgment.”).
Specifically, the summary judgment record shows that, in addition to reporting
minimal benefit from the pain medication, Plaintiff’s description of pain did not
correlate to objective medical evidence or to Plaintiff’s level of physical mobility
and activity. (See generally Filing No. 43-1; Filing No. 43-4 (Declaration of Dr.
Kasselman); Filing No. 43-5 (Declaration of P.A. Danaher).) P.A. Danaher and Dr.
Kasselman submitted declarations that elucidate the rationale of their treatment
decisions.
P.A. Danaher stated that his “medical decisions regarding how to treat
[Plaintiff]” have “always been informed by” (1) subjective factors, such as the
symptoms Plaintiff reported, and (2) objective factors, such as the results of X-rays,
MRIs, and physical examinations, Plaintiff’s medical history, and P.A. Danaher’s
observations of Plaintiff’s mobility and “apparent distress—or lack thereof—when
engaging in physical activity.” (Filing No. 43-5 at CM/ECF at p. 3, ¶ 5.) P.A.
Danaher further explained that Plaintiff’s ability to play handball and volleyball,
“aggressively lift[] weights,” perform “body exercises on the machines,” and jog
was “not consistent with his physical complaints.” (Filing No. 43-5 at CM/ECF at p.
4, ¶ 8.) Based on Plaintiff’s physical activities, “objective findings on physical
examinations,” and Plaintiff’s reports of “minimal benefit” from Tramadol and
Gabapentin, P.A. Danaher determined that continuation of these prescriptions was
37

not indicated and that Plaintiff should try “alternate means of treatment.” (Filing No.
43-5 at CM/ECF at p. 3, ¶ 5.) P.A. Danaher also decided that trigger point injections
should not be used until Plaintiff “cooperated with limiting his activities,” because
he could be further injured if he continued his physical activities after the injections.
(Filing No. 43-5 at CM/ECF at p. 4, ¶ 9.)
Similarly, Dr. Kasselman, who saw Plaintiff at the pain clinic but was not
Plaintiff’s primary health care provider and could only make suggestions as to his
treatment, (filing no. 43-4 at CM/ECF p. 3, ¶ 10), stated that when he examined
Plaintiff, he “could not find any sources of his ‘10/10’ reported pain” (filing no. 434 at CM/ECF p. 3, ¶ 8). Dr. Kasselman explained that Plaintiff “refused the solutions
offered, but requested Gabapentin, Lyrica, or other narcotics, none of which [were]
appropriate for the type of pain that [Plaintiff] was describing to [him].” (Filing No.
43-4 at CM/ECF p. 3, ¶ 8.) Specifically, Dr. Kasselman opined that Plaintiff’s back
pain and arthritis-type wrist pain could be resolved by an “over the counter
analgesic” and that Gabapentin was not “appropriate” to address such pain. (Filing
No. 43-4 at CM/ECF p. 2, ¶¶ 5, 6.) Indeed, when Dr. Kasselman first met Plaintiff,
“he was on high doses of Tramadol and Gabapentin” but “reported very little benefit
from those medications.” (Filing No. 43-4 at CM/ECF p. 2, ¶ 4.) Considering these
factors, Dr. Kasselman recommended that Plaintiff discontinue “his very extensive
workouts on the weight pile as well as handball and other high-intensity sports,”
which could exacerbate his pain, and that Plaintiff begin a “more gentle exercise
program that consisted of brisk walking, stretching, and yoga type of exercise.”
(Filing No. 43-4 at CM/ECF pp. 2-3, ¶ 7.) Finally, Dr. Kasselman noted that,
although trigger point injections can help relax spasming muscles caused by a “bad
back” or arthritis in the spine, Plaintiff’s failure to follow exercise restrictions makes
the injections “far from ideal, and, in fact, could risk further injury.” (Filing No. 434 at CM/ECF p. 3, ¶ 9.)
Importantly, Plaintiff has not come forward with any evidence to refute the
statements in P.A. Danaher’s and Dr. Kasselman’s declarations that this course of
care was medically appropriate. See Reid v. Griffin, 808 F.3d 1191, 1193 (8th Cir.
38

2015) (“In the face of medical records indicating that treatment was provided and
physician affidavits indicating that the care provided was adequate, an inmate cannot
create a question of fact by merely stating that she did not feel she received adequate
treatment”); Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (same).
Plaintiff’s allegation that P.A. Danaher, Dr. Hustad, and Dr. Kasselman “cut
off” or refused to provide him anything for his pain between December 7, 2017 and
July 24, 2018 is inaccurate; although Plaintiff was not prescribed Gabapentin during
this time, he was prescribed and offered other medications to alleviate his pain. (See
generally Filing No. 43-1.) See Fourte v. Faulkner Cnty., 746 F.3d 384, 390 (8th
Cir. 2014) (finding no deliberate indifference when medical providers “made efforts
to cure the problem in a reasonable and sensible manner”). That Plaintiff was not
prescribed the pain narcotic of his choice is of no consequence. Plaintiff does not
have a constitutional right to a particular type of pain medication, and P.A. Danaher,
Dr. Hustad, and Dr. Kasselman did not violate the Eighth Amendment when, in the
exercise of their professional judgment, they refused to implement Plaintiff’s
requested course of treatment and instead prescribed and offered numerous
alternative pain medications and treatments. See Allard, 779 F.3d at 772; Logan,
119 F.3d at 649-50; Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996). There is no
evidence that Plaintiff’s pain complaints were ever ignored or that he was ever
without some type medication or treatment to help alleviate his pain. Furthermore,
the summary judgment record indicates that, since the filing of this lawsuit and
during the pendency of this Motion, Plaintiff has been placed back on Gabapentin
and has received medical attention and treatment. (Filing No. 15; Filing No. 43-1.)
Plaintiff claims, however, that he is still in pain. Any alleged failure to fully alleviate
Plaintiff’s pain or cure his injuries does not rise to the level of deliberate indifference.
See Logan, 119 F.3d at 649-50 (finding no deliberate indifference when prison
doctors treated the prisoner on “numerous occasions” and “made efforts to cure the
problem in a reasonable and sensible manner”).
In sum, the record clearly shows that P.A. Danaher, Dr. Hustad, and Dr.
Kasselman continually and persistently addressed Plaintiff’s pain complaints and
39

prescribed and offered various pain medications and pain management strategies.
There is simply no evidence that they declined to provide the medication Plaintiff
desired, or tapered and discontinued medication, because they wanted to punish him
or because they were apathetic about his well-being. Rather, they did so because, in
their medical judgment, it was in Plaintiff’s best interest. The conduct of P.A.
Danaher, Dr. Hustad, and Dr. Kasselman hardly rises to the level of criminal
recklessness necessary to establish deliberate indifference. See Ryan, 850 F.3d at
425. To the contrary, the record establishes treatment of, not deliberate indifference
to, Plaintiff’s medical conditions.
B. Respondeat Superior Liability
Plaintiff also claims that Dr. Deol, the NDCS Medical Director, was
deliberately indifferent to Plaintiff’s medical needs and “knew or should have
known” about Plaintiff’s medical needs and lack of treatment because “he oversees
all of the Department of Medical and is the one whom approves all Medical
procedures and treatments being done to any prison inmate . . . and is the one whom
told all his staff to make cuts in spending and to stop treating some things.” (Filing
No. 1 at CM/ECF p. 5; Filing No. 21 at CM/ECF p. 5, ¶ 28.)
“It is well settled that § 1983 does not impose respondeat superior liability.”
Hughes v. Stottlemyre, 454 F.3d 791, 798 (8th Cir. 2006) (internal quotation marks
omitted). To state a § 1983 claim, the plaintiff must allege that the defendant was
personally involved in or had direct responsibility for incidents that resulted in
injury. Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985). “Supervisors can,
however, ‘incur liability . . . for their personal involvement in a constitutional
violation, or when their corrective inaction amounts to deliberate indifference to or
tacit authorization of violative practices.’” Langford v. Norris, 614 F.3d 445, 460
(8th Cir. 2010) (quoting Choate v. Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993)).
Although Dr. Deol, as the Deputy Medical Director for NDCS, oversees all
aspects of healthcare within NDCS, it is undisputed that he is not (and never was)
40

Plaintiff’s treating physician or involved in the actual assessment and diagnosis of
Plaintiff’s medical needs. (Filing No. 43-3 at CM/ECF pp. 1-2, ¶¶ 2, 5-6 (Declaration
of Dr. Deol).) That Plaintiff has complained to Dr. Deol about not receiving the pain
medication he desires does not establish that Dr. Deol had direct involvement in
Plaintiff’s treatment decisions. Additionally, Plaintiff’s allegation that Dr. Deol
“told all his staff to make cuts in spending and to stop treating some things” (filing
no. 21 at CM/ECF p. 5, ¶ 28) is incredible and not supported by any evidence. The
record shows that in March 2017, a few months after Dr. Deol was appointed
Director of Medical Services for NDCS, he “began encouraging a policy to review
the diagnoses of inmates receiving prescription medications that are prone to abuse
in an effort to verify an inmate’s need for such medications.” (Filing No. 43-3 at
CM/ECF pp. 1-2, ¶ 3.) But Dr. Deol has “never told medical staff to stop treating
inmates for medical issues they are experiencing.” (Filing No. 43-3 at CM/ECF p.
2, ¶ 4.) Moreover, there is no indication that Dr. Doel, in his capacity as the Deputy
Medical Director of Health Services for NDCS, needs to take “corrective action” for
constitutional violations here because there are no predicate violations to correct in
the first place. See Choate, 7 F.3d at 1376. As set forth above, Plaintiff cannot show
that his treating physicians—P.A. Danaher, Dr. Hustad and Dr. Kasselman—acted
with deliberate indifference when they declined to provide the pain medication
Plaintiff desired or when they tapered off or discontinued Plaintiff’s prescribed
medication.
Thus, the court finds that the evidence fails to establish that Dr. Deol acted
with deliberate indifference.

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C. Injunctive Relief
Because the court has concluded that the individual Defendants were not
deliberately indifferent to Plaintiff’s medical needs, no constitutional violations have
occurred and there is no underlying wrong for which Defendants could be enjoined.
See Falls v. Nesbitt, 966 F.2d 375, 380 (8th Cir. 1992) (“We have no Constitutional
violation; therefore, the use of an injunction is unnecessary since the conduct sought
to be enjoined no longer represents a claim which violates the Eighth Amendment.”).
IT IS THEREFORE ORDERED that:
1.

Defendants’ Motion for Summary Judgment (filing no. 42) is granted.

2.

A separate judgment will be entered.

Dated this 1st day of November, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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