Harp v. Mike Durfee State Prison
Filing
64
ORDER denying as moot 57 Motion for Protective Order; denying as moot [] Motion to Appoint Counsel; granting 60 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 5/6/2013. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
GEORGE HARP,
Plaintiff,
vs.
SECRETARY OF CORRECTIONS,
(D.O.C), Individually and in his
official capacity;
SOUTH DAKOTA PRISON MEDICAL
DEPARTMENT STAFF, Individually
and in their official capacity;
ROBERT DOOLEY, Warden Mike
Durfee State Prison, individually and
in official capacity;
DR. EUGENE REGIER, Under
contract to South Dakota
Department of Health, Individually
and his official capacity;
DR. MELVIN WALLINGA, Under
contract to South Dakota
Department of Health, Individually
and his official capacity;
DOUGLAS WEBER, Warden of The
South Dakota State Penitentiary,
individually and In his official
capacity; and
KEITH DITMANSON, D-Unit Manager
South Dakota State of South Dakota
Penitentiary, Jameson Annex,
Individually and in his Official
capacity,
Defendants.
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Civ. 11-4149-KES
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
AND DENYING PLAINTIFF’S
MOTION TO APPOINT COUNSEL
Plaintiff, George Harp, is an inmate at Mike Durfee State Prison (MDSP)
in Springfield, South Dakota.1 On October 18, 2011, and again on January 3,
2012, plaintiff filed a pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983,
alleging that defendants subjected him to cruel and unusual conditions, failed
to protect him from violence, and acted with deliberate indifference toward his
serious medical needs, all in violation of the Eighth Amendment. Docket 1, 7.
The court screened Harp’s complaint pursuant to 28 U.S.C. § 1915 and
dismissed one of his three claims for failure to exhaust administrative
remedies. Docket 10. In response to defendants’ first motion for summary
judgment (Docket 43), the court dismissed Harp’s excessive force claims for
failure to exhaust administrative remedies (Docket 56). Defendants now move
for summary judgment on Harp’s remaining claims regarding defendants’
alleged deliberate indifference toward his serious medical needs. Docket 60.
Defendants assert that each is entitled to sovereign immunity and qualified
immunity. Docket 61. Harp opposes defendants’ motion for summary
judgment. Docket 63. Harp asserts that further discovery would reveal that
defendants are providing incomplete and fabricated information with respect
to Harp’s medical condition and treatment. Id. For the reasons set forth
1
Harp was transferred from MDSP to the South Dakota State
Penitentiary (SDSP) in Sioux Falls, South Dakota, on October 20, 2011.
Docket 4. On January 22, 2013, the court received notice that Harp had
returned to MDSP. Docket 55. At issue in this case are claims against both
institutions.
2
herein, the court grants defendants’ motion for summary judgment (Docket
60).
FACTUAL BACKGROUND
In the light most favorable to Harp, the facts are as follows:
Harp is an inmate in the custody of the South Dakota Department of
Corrections (DOC). Docket 62 at ¶ 1. Harp has been incarcerated at both
MDSP and SDSP. Docket 62 at ¶ 1. At issue in this case is alleged conduct
that occurred at both facilities. Prior to being incarcerated, Harp had been
treated for “stroke, AAA, deep vein thrombosis, ruptured disc (L4-S5), [and]
chronic back pain.” Docket 1 at 1; Docket 62 at ¶ 14. According to Harp,
defendants Dr. Regier, Dr. Wallinga, and Unit Manager Ditmanson, in
accordance with DOC policy,2 refused him access to medications related to the
aforementioned conditions and thus violated the Eighth Amendment by acting
with deliberate indifference toward his serious medical needs. Docket 7 at 6.
More specifically, Harp alleges that Dr. Wallinga initially refused “to
allow [Harp] to receive medications that had been prescribed by outside
physicians.” Docket 36 at 3. Harp concedes, however, that Dr. Wallinga “later
did prescribe some for [Harp].” Id. at 4. With regard to Dr. Regier, Harp alleges
that Dr. Regier “denied [Harp] medications prescribed to [Harp] by the
physicians at . . . Sanford Hospital and the physicians at Avera MeKennon
2
In his opposition brief, Harp asserts that defendants “consistently” told
him that “D.O.C. policy prevents adequate treatment.” Docket 63 at 3. Harp,
however, has been unable to obtain a copy of such policy. Id.
3
[sic] Hospital.” Id. According to Harp, Dr. Regier discontinued various
medications without first examining Harp. Id.; Docket 63 at 3. “This left [Harp]
in excruciating pain and the sudden discontinuation of the medications
created a serious risk of stroke and death to [Harp].” Docket 36 at 4–5.
Moreover, Dr. Regier allegedly “prevented [Harp] from the follow up
appointments with the specialists that have treated [Harp]” by refusing to
schedule such appointments. Id. at 5. Finally, Harp alleges that Unit Manager
Ditmanson denied Harp medically necessary diabetic socks, even despite
being told by Nurse Jessica that doctors ordered diabetic socks for Harp.
Docket 7 at 6; Docket 36 at 4. According to Harp, Ditmanson cited the cost of
diabetic socks when denying such provisions. Id.
In his amended complaint, Harp accuses the Secretary of Corrections,
the South Dakota Prison Medical Staff, Warden Robert Dooley, and Warden
Douglas Weber of acting with deliberate indifference toward his serious
medical needs. Docket 36 at4. With regard to the Secretary of Corrections and
Warden Dooley, Harp alleges that each defendant acted with deliberate
indifference to his serious medical needs “by creating policy and procedure
that interferes with and denies needed medications and medical treatment,”
thus subjecting Harp to serious health risks. Id. With respect to Warden
Weber, Harp alleges that he acted with deliberate indifference to Harp’s
serious medical needs by authorizing, pursuant to an Operations
Memorandum, Unit Manager Ditmanson’s denial of diabetic socks. Id.
4
According to Harp, this action was taken in contravention of Weber’s duty to
ensure that inmates at SDSP are provided with prescribed medical treatment
and medications. Id. at 2. Finally, with regard to the South Dakota State
Prison Medical Department Staff, Harp alleges that the staff “denied
medications to [Harp] that were prescribed by a physician on more than one
occasion,” a denial that “caused great pain and created a serious risk to
[Harp]’s health.” Id. at 4.
STANDARD OF REVIEW
“Summary judgment is appropriate when the evidence,3 viewed in a light
most favorable to the non-moving party, demonstrates that there is no genuine
issue of material fact, and that the moving party is entitled to judgment as a
matter of law.” Clark v. Kellogg Co., 205 F.3d 1079, 1082 (8th Cir. 2000); see
also Fed. R. Civ. P. 56(a). “Once the motion for summary judgment is made
and supported, it places an affirmative burden on the non-moving party to go
beyond the pleadings and by affidavit or otherwise designate specific facts
showing that there is a genuine issue for trial.” Commercial Union Ins. Co. v.
Schmidt, 967 F.2d 270, 271 (8th Cir. 1992) (internal quotations and citations
omitted). “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although
3
The evidence includes the pleadings, depositions, documents,
electronically stored information, stipulations, answers to interrogatories,
admissions, and affidavits. Fed. R. Civ. P. 56(c).
5
“the court is required to . . . give [the nonmoving] party the benefit of all
reasonable inferences to be drawn from the underlying facts,” Vette Co. v.
Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980), the nonmoving
party may not “rest upon mere denials or allegations,” Forrest v. Kraft Foods,
Inc., 285 F.3d 688, 691 (8th Cir. 2002). Instead, the nonmoving party must
“set forth specific facts sufficient to raise a genuine issue for trial.” Id.
Prisoners who proceed pro se are entitled to the benefit of liberal
construction at the pleading stage. Quam v. Minnehaha Cnty. Jail, 821 F.2d
522, 522 (8th Cir. 1987). Nonetheless, the summary judgment standard set
forth in Rule 56 of the Federal Rules of Civil Procedure remains applicable to
prisoners proceeding pro se. Id. The district court is not required to “plumb
the record in order to find a genuine issue of material fact.” Barge v. AnheuserBusch, Inc., 87 F.3d 256, 260 (8th Cir. 1996). Moreover, the court is not
“required to speculate on which portion of the record the nonmoving party
relies, nor is it obligated to wade through and search the entire record for
some specific facts that might support the nonmoving party’s claim.” Id.
Courts must remain sensitive, however, “to the special problems faced by
prisoners attempting to proceed pro se in vindicating their constitutional
rights, and [the Eighth Circuit does] not approve summary dismissal of such
pro se claims without regard for these special problems.” Nickens v. White, 622
F.2d 967, 971 (8th Cir. 1980).
6
DISCUSSION
Defendants assert that Harp’s remaining claims must be dismissed
based on the doctrines of sovereign immunity and qualified immunity. Docket
60; Docket 61. Defendants do not deny that Drs. Regier and Wallinga refused
Harp certain medications. Docket 61 at 4; Docket 61-1 at ¶¶ 5, 9; Docket 61-2
at ¶¶ 6, 9. Instead, they assert that those determinations were based on each
doctor’s professional judgment. Docket 61 at 3–6; Docket 61-1 at ¶¶ 5–6;
Docket 61-2 at ¶¶ 6–7; Docket 62 at ¶¶ 18–19. Similarly, defendants do not
deny that Unit Manager Ditmanson refused Harp diabetic socks but rather
assert that Ditmanson issued the refusal because the relevant medical order
had expired. Docket 61 at 6–8; Docket 61-3 at ¶¶ 6–8; Docket 62 at ¶21.
Finally, because the denials of medications and diabetic socks were neither
based on SDDOC policy nor authorized by prison officials, defendants assert
that the Secretary of Corrections, Warden Robert Dooley, Warden Douglas
Weber, and the South Dakota Prison Medical Staff cannot be found to have
acted with deliberate indifference toward Harp’s serious medical needs. Docket
61 at 8–11. Accordingly, defendants assert that each is entitled to summary
judgment as a matter of law. Id.
I.
Defendants, in Their Official Capacities, Are Entitled to Summary
Judgment Under the Doctrine of Sovereign Immunity.
Harp has sued defendants in their official capacities. As the United
States Supreme Court has held, “a suit against a state official in his or her
official capacity is not a suit against the official but rather is a suit against the
7
official’s office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). In
other words, it is a suit against the State. Although “[s]ection 1983 provides a
federal forum to remedy many deprivations of civil liberties, . . . it does not
provide a federal forum for litigants who seek a remedy against a State for
alleged deprivation of civil liberties.” Id. at 66. “The Eleventh Amendment bars
such suits unless the State has waived its immunity,” id. (citing Welch v. Texas
Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472–73 (1987)), and as
defendants have noted, the State has not waived its immunity in this case,
(Docket 61 at 11). Accordingly, insofar as Harp seeks to hold defendants liable
for violations committed while acting in their official capacities, the court finds
that defendants are protected by the doctrine of sovereign immunity and are
thus entitled to summary judgment as a matter of law.
II.
Defendants, in Their Individual Capacities, Are Entitled to Summary
Judgment Under the Doctrine of Qualified Immunity.
With respect to Harp’s § 1983 action against the defendants in their
individual capacities, qualified immunity will function to protect from liability
those defendants whose actions were objectively reasonable in light of clearly
established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982); see also Ambrose v. Young, 474 F.3d 1070, 1077 (8th Cir. 2007) (“ ‘The
qualified immunity standard gives ample room for mistaken judgments by
protecting all but the plainly incompetent or those who knowingly violate the
law.’ ” (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991))). To determine
whether qualified immunity is appropriate, the court considers “(1) whether the
8
facts shown by the plaintiff make out a violation of a constitutional or statutory
right, and (2) whether that right was clearly established at the time of the
defendant’s alleged misconduct.” Brown v. City of Golden Valley, 574 F.3d 491,
496 (8th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). “If the
answer [to whether a constitutional right was violated] is no, [the court will]
grant qualified immunity,” and enter summary judgment in favor of
defendants. Grayson v. Ross, 454 F.3d 802, 808–09 (8th Cir. 2006).
Remaining at issue in this case is Harp’s claim that each of the
defendants, in their individual capacities, acted with deliberate indifference
toward his serious medical needs. “[D]eliberate indifference to serious medical
needs of prisoners constitutes ‘the unnecessary and wanton infliction of pain’
proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104
(1976) (quoting Gregg v. Georgia, 428 U.S. 153, 169–173 (1976)). “This is true
whether the indifference is manifested by prison doctors in their response to
the prisoner’s needs or by prison guards in intentionally denying or delaying
access to medical care or intentionally interfering with the treatment once
prescribed.” Id. at 104–05.
The deliberate indifference standard includes both an objective and
subjective component. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
1997) (citing Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997)). The
plaintiff “must demonstrate (1) that [he] suffered objectively serious medical
needs and (2) that the prison officials actually knew of but deliberately
9
disregarded those needs.” Id. (citing Coleman, 114 F.3d at 784). The court will
separately address each component of Harp’s deliberate indifference claim.
A.
Harp has established the existence of a serious medical need.
“A serious medical need is one that has been diagnosed by a physician as
requiring treatment, or one that is so obvious that even a layperson would
easily recognize the necessity for a doctor’s attention.” Coleman, 114 F.3d at
784. The Eighth Circuit has determined that the following circumstances
exhibit a serious medical condition: a pregnant inmate who is bleeding and
passing blood clots, see Pool v. Sebastian Cnty., Ark., 418 F.3d 934, 945 (8th
Cir. 2005); an inmate who is complaining of extreme tooth pain and presenting
with swollen, bleeding gums, see Hartsfield v. Colburn, 371 F.3d 454, 457 (8th
Cir. 2004); and a diabetic inmate who is experiencing excessive urination,
diarrhea, sweating, weight loss, and dehydration, see Roberson v. Bradshaw,
198 F.3d 645, 647–48 (8th Cir. 1999). Jones v. Minn. Dep’t of Corr., 512 F.3d
478, 482 (8th Cir. 2008).
The court will assume that Harp established the existence of a serious
medical need. Excerpts from Harp’s medical records establish that Harp’s
medical conditions, which include but are not limited to Hepatitis C,
degenerative arthritis, ruptured vertebral discs, and chronic widespread pain,
require treatment. Docket 61-4; Docket 62 at ¶ 14. Moreover, defendants have
not disputed the existence of a serious medical condition. Docket 61; Docket
10
62. Accordingly, the court finds that Harp has satisfied the objective
component of his deliberate indifference claim.
B.
Harp has not established deliberate indifference to his serious
medical needs.
To be liable for deliberately disregarding a serious medical need, “the
official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). In other words, “ ‘the
failure to treat a medical condition does not constitute punishment within the
meaning of the Eighth Amendment unless prison officials knew that the
condition created an excessive risk to the inmate’s health and then failed to act
on that knowledge.’ ” Coleman, 114 F.3d at 785 (citing Long v. Nix, 86 F.3d 761,
765 (8th Cir. 1996)).
“[T]his does not mean, however, that every claim by a prisoner that he
has not received adequate medical treatment states a violation of the Eighth
Amendment.” Estelle, 429 U.S. at 105. “[A] prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious
medical needs.” Id. at 106. Allegations of negligence will not suffice. See Jolly v.
Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (“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.”).
“The plaintiff-inmate must clear a substantial evidentiary threshold to show the
[defendants] deliberately disregarded the inmate's needs by administering an
11
inadequate treatment.” Meuir v. Greene Cnty. Jail Employees, 487 F.3d 1115,
1119 (8th Cir. 2007) (citation omitted). To determine whether defendants are
entitled to summary judgment, the court will assess the conduct of each
defendant.
1.
Dr. Melvin Wallinga and Dr. Eugene Regier did not act
with deliberate indifference toward Harp’s serious
medical needs, but instead exercised independent
medical judgment in treating Harp’s medical needs.
Dr. Wallinga contends that he did not act with deliberate indifference
toward Harp’s serious medical needs. Rather, Dr. Wallinga “exercised [his]
independent medical judgment” in prescribing treatment for Harp. Docket 61-1
at ¶ 5. Dr. Wallinga further asserts that he chose “a course of treatment based
upon [his] experience and education, taking into consideration Inmate Harp’s
medical history, past narcotic use, and current circumstances.” Id.
Dr. Wallinga’s medical determinations were not restricted by DOC policy; in
fact, Dr. Wallinga is “not aware of any policy, official or unofficial, within the
South Dakota Department of Corrections which restricts [his] professional
judgment regarding the prescription of medications.” Id. at ¶ 6. Dr. Wallinga
concedes that he discontinued Harp’s medications on January 25, 2011, but
only after Harp specifically requested the discontinuation. Id. at ¶ 8. Dr.
Wallinga prescribed Harp new pain medications on March 17, 2011, when
Harp requested that “several of his medications be re-prescribed.” Id. at ¶ 9.
Dr. Regier similarly asserts that he did not act with deliberate
indifference toward Harp’s serious medical needs. Rather, “[i]n prescribing
12
treatment for Inmate Harp, [he] . . . exercised [his] independent medical
judgment.” Docket 61-2 at ¶ 6. Dr. Regier was “not . . . restricted by the
policies of the South Dakota Department of Corrections regarding which
medications [he] . . . prescribe[d].”Id. As with Dr. Wallinga, Dr. Regier is “not
aware of any policy, official or unofficial, within the South Dakota Department
of Corrections which restricts [his] professional judgment regarding the
prescription of medications.” Id. at ¶ 7. Based on his knowledge of Harp’s past
narcotic use and dependency on pain medications, Dr. Regier prescribed
medications which were “as effective but less addictive than the narcotics
sought by Inmate Harp.” Id. at ¶¶ 8–9. Finally, in response to Harp’s allegation
that Dr. Regier prevented Harp from receiving follow-up appointments with
specialists, Dr. Regier asserts that, in accordance with protocol, he ordered the
medical staff to request the consultation of specialists when such consults
were necessary. Id. at ¶ 10–12. Furthermore, Dr. Regier “maintained
correspondence with those specialists in order to continue to provide proper
care.” Id. at ¶ 12.
The Eighth Circuit has held that “inmates have no constitutional right to
receive a particular or requested course of treatment, and prison doctors
remain free to exercise their independent medical judgment.” Dulany, 132 F.3d
at 1239. Accordingly, “ ‘a prisoner’s mere difference of opinion over matters of
expert medical judgment or a course of medical treatment fail[s] to rise to the
13
level of a constitutional violation.’ ” Nelson v. Shuffman, 603 F.3d 439, 449 (8th
Cir. 2010) (quoting Taylor v. Bowers, 966 F.2d 417, 421 (8th Cir. 1992)). “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 [he] did not feel [he]
received adequate treatment.” Dulany, 132 F.3d at 1240.
Beyond mere assertions, Harp has not provided evidence to refute the
information set forth in the affidavits of Drs. Wallinga and Regier. The court
therefore cannot conclude that Drs. Wallinga and Regier acted with deliberate
indifference toward Harp’s serious medical needs. The record demonstrates
that Dr. Wallinga only discontinued Harp’s pain medications when Harp
requested such discontinuance. Docket 61-1 at ¶ 8. When Harp requested he
be put back on pain medications, Dr. Wallinga complied, but prescribed
Nuerontin and Soma rather than the various pain medications Harp had
previously been prescribed. Id. at ¶ 9. Likewise, the record shows that
Dr. Regier addressed Harp’s medical needs by prescribing pain medications
that were “as effective but less addictive than the narcotics sought by . . .
Harp.” Docket 61-2 at ¶ 9. Furthermore, Dr. Regier ordered consults with
specialists when necessary. Id. at ¶ 12. In arriving at these determinations,
both physicians exercised independent medical judgment and took into
14
consideration Harp’s medical history, past narcotic use, and current
circumstances. Docket 61-1 at ¶¶ 5–6; Docket 61-2 at ¶¶ 6–7.
It appears, therefore, that Drs. Wallinga and Regier did not act with
deliberate indifference toward Harp’s medical needs. To the contrary, both
doctors addressed Harp’s medical needs by prescribing appropriate pain
medications and referring Harp to specialists when necessary. Harp merely
disagrees with each doctor’s course of treatment. Because “ ‘a prisoner's mere
difference of opinion over matters of expert medical judgment or a course of
medical treatment fail[s] to rise to the level of a constitutional violation,’ ”
Nelson, 603 F.3d at 449 (citation omitted), the court finds that Drs. Wallinga
and Regier have not violated Harp’s constitutional rights. Drs. Wallinga and
Regier are therefore entitled to summary judgment on Harp’s deliberate
indifference claim on the basis of qualified immunity.
2.
Unit Manager Ditmanson did not act with deliberate
indifference toward Harp’s serious medical needs.
Unit Manager Ditmanson concedes that he denied Harp diabetic socks.
Docket 61-3 at ¶ 7. Such refusal, however, was in accordance with SDSP
policy, which prohibits officials from giving inmates certain items without a
medical order on file. Id. at ¶ 6. Because Harp’s file did not contain a medical
order requiring the issuance of diabetic socks, Ditmanson refused Harp’s
request for diabetic socks. Id. at ¶ 7. Moreover, Ditmanson “contacted Health
15
Services regarding Inmate Harp’s request” and “was informed that the socks
were not necessary.” Id. at ¶ 8.
Beyond mere assertions, Harp has not provided evidence to refute the
aforementioned facts. The court therefore cannot conclude that Unit Manager
Ditmanson acted with deliberate indifference toward Harp’s serious medical
needs. The record demonstrates that Ditmanson acted in accordance with
SDSP policy in refusing to issue medical provisions to Harp. But Ditmanson
did not stop there; once aware of Harp’s alleged medical needs, he acted on
such knowledge by seeking the advice of medical professionals at Health
Services. Since the conduct of Ditmanson would fail to satisfy even the
negligence standard, the conduct does not rise to the level of deliberate
indifference. See Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37
(8th Cir. 1995) (“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.”). Therefore, Unit Manager
Ditmanson is entitled to summary judgment as a matter of law.
3.
The Secretary of Corrections, Warden Dooley, and
Warden Weber did not act with deliberate indifference
toward Harp’s serious medical needs.
The Secretary of Corrections, Warden Dooley, and Warden Weber each
assert that they were not personally involved in the alleged violation of Harp’s
constitutional rights. Docket 61 at 8–10. With regard to the Secretary of
Corrections and Warden Dooley, both of whom Harp accused of “creating policy
16
and procedure that interferes with and denies needed medications and medical
treatment,” defendants note that Harp has not specifically alleged facts
suggesting that either defendant was personally involved in the alleged
deprivation of treatment. Docket 36 at 4; Docket 61 at 9–10. With respect to
Warden Weber, who Harp alleges “authorized th[e] denial [of diabetic socks]
pursuant to an Operations Memorandum,” defendant notes that Harp has
neither produced a copy of the alleged memorandum nor specifically alleged
that defendant was otherwise personally involved in the alleged deprivation.
Docket 36 at 4; Docket 61 at 8–9.
The Eighth Circuit has repeatedly held that “ ‘[r]espondeat superior is not
a basis for liability under 42 U.S.C. § 1983.’ ” Kulow v. Nix, 28 F.3d 855, 858
(8th Cir. 1994) (quoting Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir.
1990)). In other words, “a general responsibility for supervising the operations
of a prison is insufficient to establish the personal involvement required to
support liability” for an alleged constitutional violation. Camberos v. Branstad,
73 F.3d 174, 176 (8th Cir. 1995). Here, the Secretary of Corrections, Warden
Dooley, and Warden Weber had no personal involvement in the treatment
decisions made by medical professionals at either MDSP or SDSP. None of the
three defendants, therefore, can be held liable for the treatment decisions, even
despite their general responsibility for supervising prison operations.
Notably, prison officials “can be held liable for policy decisions which
create unconstitutional conditions.” Martin v. Sargent, 780 F.2d 1334, 1338
17
(8th Cir. 1985) (citing Messimer v. Lockhart, 702 F.2d 729, 732 (8th Cir. 1983)).
The court, however, has already determined that neither the denial of specific
prescription medications nor the refusal of diabetic socks rose to the level of a
constitutional violation. Accordingly, even if the Secretary of Corrections,
Warden Dooley, and Warden Weber are responsible for the policies that led to
the denial of certain prescription medications and diabetic socks, defendants
are not liable under § 1983 because those alleged deprivations are not
unconstitutional. The Secretary of Corrections, Warden Dooley, and Warden
Weber are therefore entitled to summary judgment as a matter of law.
4.
The South Dakota Medical Department Staff did not act
with deliberate indifference toward Harp’s serious
medical needs.
Defendants assert that Harp “has failed to allege their personal
involvement in the alleged deprivation of his constitutional rights” and contend
that the South Dakota Medical Department Staff, therefore, cannot be found to
have acted with the requisite deliberate indifference. The record supports
defendants’ assertion—Harp has not set forth specific facts sufficient to raise a
genuine issue as to whether any particular staff member was personally
involved in providing Harp inadequate medical care. See Barge, 87 F.3d at 260
(noting that the court is not “required to speculate on which portion of the
record the nonmoving party relies, nor is it obligated to wade through and
search the entire record for some specific facts that might support the
nonmoving party’s claim”).
18
Furthermore, Harp has not alleged that the medical staff refused him
care. Rather, Harp alleges that the medical staff failed to prescribe him
medication to which Harp believed he was entitled. Docket 36 at 4. At the very
least, this information evidences a disagreement over a course of medical
treatment, and at most, the information supports a finding of negligence. In
either case, Harp’s allegations do not support a finding of deliberate
indifference. See Estate of Rosenberg, 56 F.3d at 37 (“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.”). Therefore, the South Dakota Medical Department
Staff is entitled to summary judgment as a matter of law.
CONCLUSION
Because sovereign immunity protects state officials from being sued in
connection with actions taken in their official capacity, defendants are entitled
to summary judgment on the official capacity claims. With regard to Harp’s
claim that defendants, in their individual capacities, acted with deliberate
indifference toward his serious medical needs, the court finds that defendants
are protected from liability under the doctrine of qualified immunity.
Consequently, defendants are entitled to summary judgment on the remaining
individual capacity claims.
Accordingly, it is
19
ORDERED that defendants’ motion for summary judgment (Docket 60) is
granted.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of
counsel (Docket 51) is denied as moot.
IT IS FURTHER ORDERED that defendants’ motion for protective order
(Docket 57) is denied as moot.
Dated May 6, 2013.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
20
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