Shaw v. Young et al

Filing 118

ORDER granting in part and denying in part 50 Motion for Summary Judgment; adopting in part and rejected in part 114 Report and Recommendation. Signed by U.S. District Judge Karen E. Schreier on 9/29/17. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES ELMER SHAW,

4:15-CV-04121-KES

Plaintiff,
vs.
TROY PONTO, ASSOCIATE WARDEN,
INDIVIDUAL AND OFFICIAL CAPACITY;
AL MADSON, UNIT MANAGER,
INDIVIDUAL AND OFFICIAL CAPACITY;
SAM BADURE, UNIT MANAGER,
INDIVIDUAL AND OFFICIAL CAPACITY;
DERICK BIEBER, UNIT MANAGER,
INDIVIDUAL AND OFFICIAL CAPACITY;
JACOB GLASIER, UNIT
COORDINATOR, INDIVIDUAL AND
OFFICIAL CAPACITY; DR. MARY
CARPENTER, M.D. (HEALTH
SERVICES), INDIVIDUAL AND
OFFICIAL CAPACITY; DR. EUGENE
REGIER, MD, INDIVIDUAL AND
OFFICIAL CAPACITY; HEATHER
BOWERS, RN (HEATH SERVICES),
INDIVIDUAL AND OFFICIAL CAPACITY;
AND AUDREY SHEDD, HEAD
REGISTERED NURSE, INDIVIDUAL
AND OFFICIAL CAPACITY;

ORDER ADOPTING THE REPORT
AND RECOMMENDATION IN PART
AND REJECTING IT IN PART

Defendants.

Plaintiff, James Elmer Shaw, filed this lawsuit under 42 U.S.C. § 1983.
Defendants move for summary judgment. Docket 50. The case was referred to
the magistrate judge under 28 U.S.C. § 636(b)(1)(B) for a report and
recommendation on defendants’ motion for summary judgment.

On August 31, 2017, the magistrate judge submitted her report and
recommended that defendants’ motion for summary judgment be denied in
part and granted in part. The magistrate judge recommended that the court
deny summary judgment on Shaw’s claim for deliberate indifference to serious
medical need against defendants Ponto, Madsen, and Carpenter and to deny
summary judgment on Shaw’s retaliation claim against defendants Ponto,
Bieber, and Bowers. Docket 114 at 74. The magistrate judge further
recommended that the court grant summary judgment on Shaw’s remaining
claims. Id.
Defendants filed objections to the magistrate judge’s Report and
Recommendation on September 13, 2017. Docket 115. Defendants objected to
the magistrate judge’s recommendation to deny summary judgment as to the
deliberate indifference and retaliation claims. Id. Shaw responded to
defendants’ objections. Docket 117.
FACTUAL BACKGROUND
Defendants do not object to the magistrate judge’s statement of facts. A
full recitation of the facts can be found in the Report and Recommendation.
Docket 114. Here, the court summarizes the facts relevant to Shaw’s objections
to the report and recommendation:
Plaintiff, James Elmer Shaw, is in the custody of the South Dakota
Department of Corrections and housed at the South Dakota State Penitentiary.
Beginning in 2002, Shaw began to receive medical treatment for pain in his
right knee. Docket 51-2 at 1-2. Between 2002 and 2008, Shaw continued to
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visit prison health services for pain in his right knee, and it was eventually
discovered that Shaw had a “prominent” osteochondroma 1 growth on his right
tibia. Docket 51-1 at 1-5. In 2008, Dr. Eugene Regier, in prison health services,
decided to submit a Utilization Management 2 (UM) for an orthopedic consult
because it appeared that the osteochondroma was becoming more
symptomatic. Id. at 10-11. Dr. Regier made the UM request for an orthopedic
consult on April 18, 2008, and it was approved on April 21, 2008. Docket 51-3
at 1.
Shaw saw Dr. Evan Hermanson on May 5, 2008. Docket 51-2 at 7-8.
Prior to his appointment with Dr. Hermanson, Shaw underwent an MRI of his
right knee on April 28, 2008. Id. at 3-4. The MRI revealed a complex tear of the
lateral meniscus in addition to the osteochondroma, which extended over the
tibia and fibula, or possibly two osteochondromas grown together. Id. Dr.
Hermanson’s note states:
Right lateral knee pain and meniscal tear, but the pain seems to be
associated with osteochondroma and overlying bursa. I discussed
this with him. Although he has a meniscal tear I do not think
taking out the meniscus is going to improve his knee pain at all,
An osteochondroma is an overgrowth of cartilage and bone that happens at
the end of the bone near the growth plate. Most often, it affects the long bones
in the leg, the pelvis, or the shoulder blade.
Osteochondroma is the most common non-cancerous bone growth. It most
often occurs between ages 10 and 30. It affects males and females equally. The
most common symptoms of osteochondroma are a hard mass that is painless
and does not move, lower than normal height for one’s age, one leg or arm that
is shorter than the other, pressure or irritation with exercise, and soreness of
nearby muscles.
http://www.hopkinsmedicine.org/healthlibrary/conditions/bone_disorders/os
teochondroma_85,p00125. (last checked September 18, 2017).
2 UM requests refer to requests for medical care from outside providers.
1

3

since his pain is further distal than the actual joint. If he wanted to
pursue having a osteochondroma [sic] excised in hopes that this
would improve his pain than [sic] he would need to be referred to
an orthopedic tumor surgeon. I discussed trying to coordinate that,
but he does not to proceed with what would likely be a large
undertaking to remove that osteochondroma.
Id. at 7. Dr. Hermanson recommended Ibuprofen 600 milligrams three times a
day for pain. Id. at 8.
Between 2008 and 2012, Shaw continued to have pain in his right knee
and visited prison health services numerous times. During that time, Shaw
received a cortisone shot, X-rays, orders for “med ice”, and numerous other
medical orders and restrictions. Docket 51-1; Docket 51-2. Finally, on
December 12, 2012, Shaw saw Dr. Jeffrey Kalo. Docket 51-2 at 18. Dr. Kalo
recommended an MRI of the right knee to assess the osteochondroma and the
meniscal tear, and Dr. Kalo indicated that Shaw would need a knee scope after
the MRI. Id.
On December 13, 2012, Dr. Regier submitted a UM for the MRI
suggested by Dr. Kalo. Docket 51-3 at 12. Dr. Mary Carpenter approved the
UM on December 26, 2013. Id. The MRI was performed on January 2, 2013,
and revealed (1) a new anterior cruciate ligament (ACL) tear; (2) a new tear of
the medial meniscus posterior horn; (3) increased/new cartilage defects in the
medial and lateral femorotibial compartments; (4) unchanged tear of the lateral
meniscus body as well as partial extrusion; (5) unchanged osteochandroma;
and (6) Baker’s cyst with more intrabursal bodies. Docket 51-2 at 20. Shaw
then had another appointment with Dr. Kalo on April 10, 2013. Docket 51-2 at
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21. Based on the MRI, Dr. Kalo believed the best option was a right knee
arthroscopy. Id. On May 9, 2013, Dr. Regier submitted a UM for Shaw to obtain
the surgery recommended by Dr. Kalo. Docket 51-3 at 14. Dr. Carpenter
approved this UM on May 16, 2013, and Dr. Kalo performed the surgery on
June 14, 2013. Docket 51-2 at 22-24. Following the surgery, Shaw was
provided a knee brace and directed not to engage in sports. Docket 51-2 at 26.
On March 13, 2014, Shaw visited health services complaining of pain in
his left knee and requested an extension of pain meds. Docket 51-1 at 42. On
July 17, 2014, PA Ryan Manson submitted a UM for an MRI of Shaw’s left
knee. Docket 51-3 at 19. Dr. Carpenter approved this UM on July 19, 2014. Id.
The MRI of Shaw’s left knee was performed on August 6, 2014 and showed:
(1) trace joint effusion and moderate sized Baker’s cyst; (2) complex
macerated tearing of most of the lateral meniscus with little intact
meniscus remaining; (3) chronic tear of the ACL; (4) question
horizontal tear of the posterior horn of the medial meniscus; and
(5) cartilage defects, fairly significant of the lateral femoral tibial
compartment and mild degenerative changes of the patellofemoral
compartment.
Docket 51-1 at 46.
In response to the MRI, PA Manson submitted a UM for a left knee
consult with CORE Orthopedics on August 12, 2014. Docket 51-3 at 21. On
August 29, 2014, Dr. Carpenter denied this UM stating “chronic degenerative
condition.” Id. On Decmber 15, 2014, PA Manson again submitted a UM for
Shaw to see Dr. Kalo. Id. at 20. Dr. Carpenter approved the UM on the same
day it was submitted. Id. Shaw saw Dr. Kalo on January 15, 2015. Docket 51-2
at 31. Dr. Kalo ordered X-rays and reviewed the MRI of the left knee. Id. at 31.
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He assessed a grade 3 ACL sprain on the left knee, a lateral tear of the
meniscus, and patellofemoral arthrosis. Id. Dr. Kalo discussed treatment
options with Shaw and recommended surgery. Id. On January 15, 2015, PA
Manson submitted a UM for the surgery and Dr. Carpenter approved it on
February 2, 2015. Docket 51-3 at 22. Dr. Kalo performed the surgery on March
9, 2015. Docket 51-2 at 27-30. On the same day, a medical order was entered
stating that, following his surgery, Shaw was to ice his left knee as tolerated,
keep his left knee elevated above his heart, take Lortab 3 for five days, and
begin knee exercises 48 hours post-surgery. Docket 51-1 at 50.
Shaw asserts that the medical orders were not followed by Madsen and
Ponto. Docket 41 ¶¶ 85-101. Specifically, that he was not provided medical ice
until three days after the surgery and he was forced to return to the SHU and
then to his cell with no accommodation for medical ice or elevation of his knee.
Id. Defendants assert Shaw was sent to the SHU after his surgery because he
refused his housing assignment when he was not given a handicap cell. Docket
56 ¶ 12; Docket 59 ¶ 7. While Shaw was in the SHU, he requested ice, pain
medication, and the ability to elevate his knee but Madsen refused. Docket 52
¶ 13; Docket 41 ¶¶ 67, 82. Madsen refused these items because he was not
aware of Shaw’s medical orders even though medical orders follow an inmate
when they go to the SHU. Docket 52 ¶ 13; Docket 66 ¶ 15. After Shaw was
released from the SHU on March 11, 2015, Shaw alleges he begged Associate
Warden Ponto for help, but Ponto did nothing. Docket 41 ¶ 93-109.
3

Lortab is the pain medication prescribed to Shaw.
6

On March 18, 2015, Dr. James Schaeffer from prison health submitted a
UM for an urgent follow up for Shaw with Dr. Kalo due to a possible infection
at the surgical site on Shaw’s left knee. Docket 51-3 at 23. Dr. Carpenter did
not approve the UM until March 23, 2015, but Dr. Kalo saw Shaw on March
19. Docket 51-2 at 32. Shaw believed his knee was infected but Dr. Kalo did
not find an infection and only found an expected amount of swelling and
warmth following surgery. Id. Dr. Kalo recommended that Shaw continue to
ice and use a knee brace. Id. Shaw told prison health nursing staff that
recovery went “okay for the most part however pain in the left knee continues.”
Docket 51-1 at 56-58.
Defendants explained that when an inmate requests medical records, he
does not obtain access to outside medical records during a medical records
review. Docket 51-1 at 87-90. Instead, the inmate’s medical file is pulled and
prepared for review by removing any information the inmate is not allowed to
access, such as outside records, mental health records, UM requests, and
dates of future appointments. Id. To obtain outside medical records, an inmate
must request them directly from the outside provider. Id. at 87.
In November 2015, Shaw made several requests to review his medical
records. Docket 109-28; Docket 51-5. At that time, Shaw had already filed his
complaint in this action but it had not been served on any of the named
defendants. On November 23, 2015, Shaw was placed in the SHU while his cell
was searched for missing medical records. On December 17, 2015, non-

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defendant Jessica Schreurs authored a document that was placed in Shaw’s
medical file. Docket 57 ¶ 5. The dictation in Shaw’s file stated as follows:
Late entry:
11/09/15 the patient kited requesting to review his medical
records. He submitted repeated requests to review his medical
records on 11/13/15, 11/16/15, 11/18/15, and 11/20/15. On
11/10/15 Kristina Wiersma with medical records discovered the
patients [sic] chart was out of order with random papers,
specifically mental health papers and outside records pulled to the
front of the chart.
11/21/15 Heather Bowers RN made aware that the provider
dictations are unable to be located. Over the next week Heather
Bowers RN, Kristine Wiersma Medical Records and Rosie Rand
went through all four of the patients [sic] chart attempting to locate
the missing records. Jessie Rand searched Jameson health
services to see if the patient had an additional thinned chart down
there. She was unable to locate an additional chart.
11/24/15 I was approached by Heather Bowers RN to determine
what the next step would be. I called Unit Manager Dittmanson
and asked that a cell search would be completed on Mr. Shaw in
an attempt to locate the missing records at 1400. At approximately
1545 SCO Howe brought me a folder contained 102 pages of
medical records. There were 9 original signed provider dictations
from the following dates 08/02/10, 08/24/11, 10/2/12, 11/7/12
[sic], 7/3/13, 9/3/13, 7/10/14, 8/28/14, 12/11/14, and one
original UM for an orthopedic surgical consult from 2/6/10. The
original documents were on #11 pages of paper.
11/25/15 I approached AW Ponto requesting that special security
complete an investigation into how the patient obtained original
internal records.
12/01/15 AW Ponto notified this writer that the patient reports he
obtained all the confiscated records from an outside provider. I
notified AW Ponto that this was not a possibility as the original
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documents were internal provider documents that were signed.
The outside provider would not have had access to these records.
12/01/15 Notified Kayla Tinker and Melissa Johnson of the
situation who advised me clearly indicate what records were
original and to develop timeline of events.
12/02/15 Met with AW Ponto, Heather Bowers RN and Mr. Shaw.
Patient reports he received the documents from Nurse Melissa.
Informed Patient that Nurse Melissa has not worked for the
department in several years and the most recent original document
was dated from 12/2014 and that I needed to know how he
obtained the records. He then reports that medical provided him
with the chart to review in the waiting room at his request with the
officer watching him. He reports that SCO Smith had to step away
and he took the records.
12/17/15 Called patient to health services to return #91 non
original documents to patient. I informed him that I was returning
all non-original documents but that he would not receive the
originals back. Patient verbalized understanding. He reports he has
more original documents in his cell. I requested that the patient
return all original documents. He brought up the following: original
provider dictation from 01/03/2007, original provider dictation
07/02/2009. This was a total of 5 pages. I offered the patient to
provide him copies of these records. Notified AW Ponto of the
additional original records obtained from the patient.
Docket 51-5.
Shaw denies that he stole the medical records and denies that he
admitted stealing the records. Docket 109 14-19. Also, Shaw’s medical chart
review under the supervision of SCO Smith did not occur until December 4,
2015. Docket 51-1 at 81.

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LEGAL STANDARD
Review of a magistrate judge’s report and recommendation is governed by
28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. Under 28
U.S.C. § 636(b)(1), the court reviews de novo any objections that are timely
made and specific. See Fed. R. Civ. P. 72(b) (“The district judge must determine
de novo any part of the magistrate judge’s disposition that has been properly
objected to”).
Pro se filings must be liberally construed. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (citation omitted). Even with this construction, “a pro se [filing]
must contain specific facts supporting its conclusions.” Martin v. Sargent, 780
F.2d 1334, 1337 (8th Cir. 1985); Ellis v. City of Minneapolis, 518 F. App’x 502,
504 (8th Cir. 2013). Summary judgment on all or part of a claim is appropriate
when 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); see also In re Craig, 144 F.3d 593, 595 (8th Cir. 1998). The moving party
can meet its burden by presenting evidence that there is no dispute of material
fact or that the nonmoving party has not presented evidence to support an
element of its case on which it bears the ultimate burden of proof. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986).
Once the moving party has met this burden, “[t]he nonmoving party may
not ‘rest on mere allegations or denials, but must demonstrate on the record
the existence of specific facts which create a genuine issue for trial.’ ” Mosley v.
City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cty. of
10

Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). “Further, ‘the mere existence of
some alleged factual dispute between the parties is not sufficient by itself to
deny summary judgment. . . . Instead, the dispute must be outcome
determinative under prevailing law.’ ” Id. (quoting Get Away Club, Inc. v.
Coleman, 969 F.2d 664, 666 (8th Cir. 1992)). The facts, and inferences drawn
from those facts, are “viewed in the light most favorable to the party opposing
the motion” for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S.
654, 655 (1962)).
DISCUSSION
Defendants object to the magistrate judge’s recommendation that
summary judgment not issue in favor of Madsen, Ponto, or Dr. Carpenter on
Shaw’s claim for deliberate indifference. Docket 115 at 2. Defendants also
object to the magistrate judge’s recommendation that summary judgment not
issue in favor of Ponto, Bieber, and Bowers on Shaw’s claim for retaliation. Id.
at 10.
I.

Deliberate Indifference
The Eighth Amendment prohibits cruel and unusual punishment. U.S.

Const. Amend. VIII. “Deliberate 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, 173 (1976)). “This is true
whether the indifference is manifested by prison doctors in their response to
11

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. Shaw must show that he suffered objectively serious
medical needs and that defendant actually knew of but deliberately disregarded
those needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997).
A.

UM Madsen and AW Ponto

First, the court must analyze whether Shaw had 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 v. Rahija, 114
F.3d 778, 784 (8th Cir. 1997). Here, Shaw had knee surgery on his left knee on
March 9, 2015. Upon returning from surgery, Dr. Kalo ordered that Shaw
receive pain medication until March 14, 2015, ice his knee as tolerated, and
keep his knee elevated above his heart. Docket 51-1 at 50. Thus, the court
finds that Shaw had a serious medical need that was diagnosed by a physician
as requiring treatment.
Second, the court must determine whether Madsen and Ponto were
deliberately indifferent to Shaw’s medical needs. There are multiple ways an
inmate can show deliberate indifference. One way is to show that the
“defendant intentionally delayed or denied access to medical care.” Allard v.
Baldwin, 779 F.3d 768, 772 (8th Cir. 2015). Shaw alleges that Madsen refused
to comply with medical orders to give Shaw ice, elevation, and pain medication
after Shaw’s March 9 left knee surgery. Docket 41 ¶¶ 82-83. Madsen admits
12

that he refused to provide Shaw with ice, elevation, and pain meds. Docket 52.
But he argues that he did not know about the medical orders (Docket 51 at
19), that there was a recommendation for ice and not a medical order for ice
(Docket 51 at 19), and that Shaw was given his prescribed medication (Docket
115 at 4). As to Madsen’s knowledge of the orders, Bowers confirms that
medical orders follow the prisoner, even into the SHU. Docket 66 ¶ 14. Also,
Shaw claims he requested ice, elevation, and pain medication directly from
Madsen. Docket 41 ¶¶ 82-83. Because it is proper procedure for the orders to
follow an inmate into the SHU and Shaw alleges he specifically asked Madsen
for treatment, there is a question of fact as to whether Madsen did know about
the medical orders.
Defendants also argue that the language in the order stating “ice to [left]
knee as tolerated” is not consistent with past language in medical orders, so
the “order” for ice was actually a recommendation. That argument is irrelevant
because Madsen claims he did not give Shaw ice because he did not know
about the order—not because he saw the order and misunderstood the
instruction. Thus, any argument as to the ambiguity of the language now is not
relevant to Madsen’s knowledge back in March of 2015. And as to defendants’
point that Shaw was given his pain medication, medical administration records
indicate that Shaw was given pain medication while he was in the SHU. Docket
116-1. But Shaw’s primary allegation is that Madsen denied Shaw the ability to
ice and elevate his knee. Docket 41 ¶¶ 82-88. Because there are facts to
support the contention that Madsen knew about the medical order and denied
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Shaw the ability to ice and elevate his knee, the court finds that there is a
question of fact as to whether Madsen was deliberately indifferent to Shaw’s
medical needs.
Defendants also object to the magistrate judge’s recommendation that
summary judgment not be granted in favor of Ponto on Shaw’s claim for
deliberate indifference because Ponto did not know about Shaw’s medical
needs until March 16, 2015. Docket 115 at 6. But Shaw alleges in his Fourth
Amended Complaint that on March 11, 2015, after Shaw was released from the
SHU, Shaw went to Ponto’s office and told him he had a medical emergency but
Ponto ignored his requests. Docket 41 at 11-12. Thus, there is a question of
fact for the jury as to whether Ponto denied Shaw access to medical treatment.
B.

Dr. Carpenter

Again, the court must first analyze whether Shaw had a serious medical
need. To show a serious medical need, Shaw must demonstrate a medical need
that has “been diagnosed by a physician as requiring treatment,” or was “so
obvious a layperson would easily recognize the necessity for a doctor’s
attention.” Coleman, 114 F.3d at 784. Here, on August 6, 2014, Shaw’s MRI
revealed that he had a moderate-sized Baker’s cyst, tearing in the meniscus, “a
chronic tear of the ACL,” and cartilage defects. See Docket 51-1 at 46. Because
Dr. Carpenter denied the UM request for an orthopedic consultation, Shaw did
not have the opportunity to receive a doctor’s order on treatment for his left
knee. But, viewing the facts in the light most favorable to Shaw, this court
finds that tearing in the meniscus and a “chronic tear of the ACL” is a serious
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medical need that a layperson would easily recognize as requiring a doctor’s
attention.
Next, the court must analyze whether Dr. Carpenter was deliberately
indifferent to Shaw’s medical needs. Shaw alleges that Dr. Carpenter was
deliberately indifferent to his medical need because she denied the first UM
request for an orthopedic consultation on his left knee. But Dr. Carpenter
approved a UM for an orthopedic consultation three months later and approved
the UM request for the knee surgery. Docket 51-3 at 21. Thus, Shaw’s claim is
for a delay in medical treatment as opposed to a denial of treatment. To prove a
claim of deliberate indifference for a delay in medical treatment, the record
must contain verifying medical evidence that a delay resulted in a detrimental
effect. Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997). Here, Shaw
has not presented any evidence in the record to indicate that the three-month
delay in receiving an orthopedic consultation resulted in a detrimental effect.
Thus, there is no issue of material fact and summary judgment is granted in
favor of Dr. Carpenter.
II.

Retaliation
“A prisoner’s Eighth Amendment rights are violated if prison officials

‘impose a disciplinary sanction against a prisoner in retaliation for the
prisoner’s exercise of his constitutional right.’ ” Meuir v. Greene Cty. Jail Emps.,
487 F.3d 1115, 1119 (8th Cir. 2007) (quoting Goff v. Burton, 7 F.3d 734, 738
(8th Cir. 1993)). “To prevail on a § 1983 claim for retaliation in violation of the
First Amendment, [the plaintiff] must demonstrate (1) that he engaged in a
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protected activity; (2) that the government official took adverse action against
him that would chill a person of ordinary firmness from continuing in the
activity; and (3) that the adverse action was motivated at least in part by the
exercise of the protected activity.” Santiago v. Blair, 707 F.3d 984, 991 (8th Cir.
2013) (citing Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004)).
Shaw states that on November 23, 2015, he visited health services and
told personnel that he needed his medical records for “litigation purposes.”
Docket 41 ¶ 176. Shaw alleges that, in retaliation for his stated intention to
pursue his constitutional right to access the court, he was placed in the SHU,
his cell was searched, and medical records and legal work were taken from him
and never returned. Docket 41 ¶ 185.
“In the prison context, we have observed that prison officials are
prohibited from ‘punishing an inmate because he exercises his constitutional
right of access to the courts.’ ” Beaulieu v. Ludeman, 690 F.3d 1017, 1025 (8th
Cir. 2012) (quoting Sisneros v. Nix, 95 F.3d 749, 751 (8th Cir. 1996)). The filing
of a lawsuit is a constitutionally protected activity under the First Amendment.
Santiago, 707 F.3d at 991-92. Thus, Shaw satisfies the first prong.
To satisfy the second prong, Shaw must not only show that defendants
took an adverse action, but that the action “would chill a person of ordinary
firmness from continuing in the [protected] activity.” Revels, 382 F.3d at 876.
The Eighth Circuit has adopted the “ordinary firmness” requirement for First
Amendment claims of retaliation. Lewis v. Jacks, 486 F.3d 1025, 1029 (8th Cir.

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2007). The “ordinary-firmness” test is an objective test. Santiago, 707 F.3d at
992.
In Santiago, the Eighth Circuit found that “a reasonable jury could find
that threats of death, issued by a correctional officer tasked with guarding a
prisoner’s segregated cell, would chill a prisoner of ordinary firmness.” Id. In
Revels, the Eighth Circuit found that the plaintiff failed to show the defendant
took an adverse action because the plaintiff did not produce any evidence and
could not rest on bare allegations. Revels, 382 F.3d at 876-77.
Here, there is no evidence in the record to show that Bowers took an
adverse action against Shaw. Shaw alleges that Bowers initiated the
investigation to find the missing medical records (Docket 108 at 15) and
Bowers states that she was present in a meeting where Shaw allegedly
admitted to stealing his medical records (Docket 55 at 2). But Bowers did not
order the search of Shaw’s cell. Bowers’ mere presence at a meeting where
Shaw was questioned about the medical records is not an adverse action, and
even if it were, would not chill an ordinary person from taking part in a
protected activity.
Also, there is no evidence indicating that Bieber took an adverse action
against Shaw. Shaw alleges that Bieber prevented Shaw from obtaining his
property that was taken during the November 23 search by intervening in the
grievance process (Docket 108 at 15), and Bieber states that he testified for the
government at the small claims hearing where Shaw brought a claim against
the Warden to retrieve items taken from his cell during the November 23
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search. Docket 54. But the evidence indicates that Bieber did not handle
Shaw’s filed grievance to retrieve his property after the November 23 search.
See Docket 51-4 at 5. Bieber did testify at the small claims proceeding, but
Shaw does not allege that Bieber’s testimony was an adverse act. Docket 108 at
15. Bieber was not involved in the search of Shaw’s cell or in the decision to
place Shaw in the SHU. Id. Thus, there is no evidence to support that either
Bowers or Bieber took an adverse action against Shaw and no question for the
fact finder, so both Bowers and Bieber are entitled to summary judgment on
the retaliation claim.
But there is evidence to support Shaw’s claim that Ponto took an adverse
action against Shaw because the evidence indicates that Ponto ordered the
search of the Shaw’s cell. Docket 51-4 at 1. The court finds that a cell search
paired with being placed in the SHU could be considered an adverse action that
would chill an ordinary person from taking part in a protected activity. To
satisfy the third prong of the test “the plaintiff must show the official took the
adverse action because the plaintiff engaged in the protected speech.” Revels,
382 F.3d at 876. “The causal connection is generally a jury question, . . . it can
provide a basis for summary judgment when the question is so free from doubt
as to justify taking it from the jury.” Id. Where the disciplinary action takes
place “almost immediately” after a defendant learns of the protected activity,
there is a sufficient nexus in time to show causation. Haynes v. Stephenson,
588 F.3d 1152, 1156-57 (8th Cir. 2009).

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In Haynes, the Eighth Circuit found that the plaintiff had satisfied the
causal connection prong. Haynes, 588 F.3d at 1157. Almost immediately after
the prisoner filed a grievance against defendant, the defendant filed a
disciplinary report against the prisoner. Id. at 1156-57. The defendant wrote in
the disciplinary report that he was filing the report because plaintiff’s grievance
was false. Id. at 1157. Thus, the Court found that the district court did not err
in concluding that, but for plaintiff’s grievance, defendant would not have filed
the disciplinary report. Id.
Here, defendants allege that Shaw’s cell was searched because he was
suspected of stealing his medical records and he was placed in the SHU for
investigatory purposes. The evidence defendants rely on shows that on
November 24, 2015, Shaw’s cell was searched and the search produced
missing medical records from Shaw’s chart. Docket 51-5. Then, on December
12, 2015, Ponto, Bowers, and Schreuers met with Shaw, and Shaw admitted to
stealing the medical records while completing a chart review under the
supervision of SCO Smith. Id. But Shaw’s chart review under the supervision of
SCO Smith did not occur until December 4, 2015. Docket 51-1 at 81. Thus,
this discrepancy raises a question of fact as to whether defendants’ proffered
explanation for disciplining Shaw is accurate. Additionally, evidence shows that
Shaw told health services on November 20, 2015—prior to being placed in the
SHU—that he was filing an amended complaint. Docket 51-1 at 74. Three days
later, Shaw was placed in the SHU and his cell was searched. Docket 60 ¶¶ 12. So even though none of the defendants had been served with the summons
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and complaint, there is reason to believe that the defendants were aware of the
lawsuit shortly before Shaw was disciplined. Thus, this court finds that there is
a question of fact for the jury to determine whether Ponto retaliated against
Shaw for exercising his constitutional right to the courts.
IT IS ORDERED,
1. Defendants’ motion for summary judgment (Docket 50) is granted
on all claims as to all defendants except as follows:
a. On Shaw’s claim for deliberate indifference to a serious
medical need as to Madsen and Ponto; and
b. On Shaw’s retaliation claim as to Ponto.
2. The Magistrate Judge’s Report and Recommendation is adopted in
part and rejected in part as referenced herein.
DATED this 29th day of September, 2017.

BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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