East v. Minnehaha County, South Dakota et al

Filing 132

OPINION AND ORDER granting 63 Motion to Dismiss; granting 68 Motion for Summary Judgment; denying as moot 77 Motion for Protective Order; granting 106 Motion for Summary Judgment; granting 117 Motion for Summary Judgment. Signed by U.S. District Judge Roberto A. Lange on 3/29/19. (SKK)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

4:I6-CV-04122-RAL

DONALD EAST,

Plaintiff,
OPINION AND ORDER GRANTING
MOTIONS FOR SUMMARY JUDGMENT
AND TO DISMISS

vs.

MINNEHAHA COUNTY, CORRECT CARE
SOLUTIONS, LLC; JEAN HEISLER, M.D.;
LINDA OSBORNE; ROBERT DOOLEY,

WARDEN; BRIAN FOLLY; MICHAEL
HANVEY; BRADLEY ADAMS; and JOHN
DOES I AND 2,
Defendants.

PlaintiffDonald East, an indigent inmate in state custody, started this case with a complaint

filed August 29, 2016. Doc. 1. East first amended his complaint in October of 2016. Doc. 10.
Thereafter, on October IT,2016,this Court screened the case under 28 U.S.C. § 1915A,dismissed
certain negligence claims, but concluded that East had stated a claim under the Eighth Amendment
of the United States Constitution and based on 42 U.S.C. § 1983 for deliberate indifference to

East's serious medical needs in connection with a minor toe injury leading to removal ofa toe and

additional surgery and foot issues. Doc. II. East's case progressed slowly afterward with this
Court initially denying appointment of counsel and East continually seeking to amend his

complaint and to have appointment ofcounsel. In April of2017,this Court issued an Opinion and
Order granting amendment of the complaint, but dismissing certain claims and parties and
directing East to complete summons forms so that Defendants could be served. Doc. 20. East
1

continued to seek to amend the complaint, have counsel appointed, and did not complete and return
the summons forms. See Doc. 40. Because East appeared to have colorable claims under § 1983

and because it had become apparent that East lacked the capacity to adequately investigate and
present his claims without counsel,this Court appointed counsel for East in January of2018. Doc.
40. The appointed counsel has performed admirably for East, filing a comprehensive second
amended complaint. Doc. 47, which named as Defendants Minnehaha County, Correct Care
Solutions, LLC (CCS), Jean Heisler, M.D.(Dr. Heisler), Linda Osbome (Nurse Osbome), Mike
Durfee State Prison Warden Robert Dooley (Warden Dooley), Mike Durfee State Prison Unit
Coordinator Brian Foley (Coordinator Foley), two physician assistants who provided service at
Mike Durfee State Prison named Michael Hanvey(PA Hanvey)and Bradley Adams(PA Adams),
and two unknown correctional officers at Mike Durfee State Prison denoted as John Does 1 and 2.

John Does 1 and 2 appear to be corrections officers Jeremy Baker and Adam Coins. Doc. 90 at
1130.

PA Adams filed a motion to dismiss. Doc. 63, arguing that the most recent amended

complaint failed to state a claim against him. PA Adams noted that only Paragraphs 57 and 73 of
that complaint mention his conduct, and he,unlike other Defendants,treated East sparingly. Docs.
64, 84. East opposed PA Adams' motion to dismiss. Doc. 80.
All of the other Defendants (except Minnehaha County) have filed motions for summary

judgment. Defendants Warden Dooley, Coordinator Foley, PA Hanvey, Baker, and Coins
(collectively the Mike Durfee State Prison Defendants)seek summaryjudgment based on qualified
immunity and the absence of liability. Docs. 68, 69. The Mike Durfee State Prison Defendants
also filed a motion for protective order to cease discovery pending decision on the qualified

immunity issue. Doc. 77. East opposed these motions. Doc. 87. Dr. Heisler filed a motion for

summary judgment arguing that the three-year statute oflimitations on claims against her had run
and that she had not been deliberately indifferent to any serious medical need of East. Docs. 106,

107,123. Separately CCS filed a motion for summaryjudgment with the same arguments as made

by Dr. Heisler, Doc. 117, but submitting that CCS employee and eo-defendant Nurse Osbome had
not been served. Doc. 120. East opposed those motions for summary judgment as well. Docs.
114, 127. For the reasons explained herein, this Court grants the motions for summary judgment
and the motion to dismiss.

1.

Motion to Dismiss and Motion for Summary Judgment Standards.

PA Adams has filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Doc. 63. On a motion to dismiss under Rule 12(b)(6), the court must accept a

plaintiffs factual allegations as true and make all inferences in the plaintiffs favor, but need not
accept a plaintiffs legal conclusions. Retro Television Network. Inc. v. Luken Commc'ns. LLC.
696 F.3d 766, 768-69(8th Cir. 2012). To survive a motion to dismiss for failure to state a claim,

a complaint must contain "a short and plain statement of the claim showing that the pleader is
entitled to relief." Fed. R. Civ. P. 8(a)(2). Although detailed factual allegations are unnecessary,

the plaintiff must plead enough facts to "state a claim to relief that is plausible on its face."
Ashcroft V. Iqbak 556 U.S. 662, 678 (2009)(quoting Bell Atlantic Corp. v. Twomblv, 550 U.S.

544, 570 (2007)). A claim is plausible on its face "when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged," id., "even if it strikes a savvy judge that actual proof of those facts is improbable, and
'that recovery is very remote and unlikely,'" Twomblv. 550 U.S. at 556 (quoting Scheuer v.
Rhodes. 416 U.S. 232,236(1974)). Still,"conclusory statements" and "naked assertion[s] devoid

of further factual enhancement" do not satisfy the plausibility standard.^ Iqbah 556 U.S. at 678
(alteration in original)(citation and internal marks omitted).
Defendants, other than PA Adams and Minnehaha County, have filed summary judgment
motions. Under Rule 56(a) ofthe Federal Rules of Civil Procedure, summary judgment is proper
"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). Rule 56(a) places the burden

initially on the moving party to establish the absence of a genuine issue of material fact and
entitlement to judgment as a matter oflaw. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett.
477 U.S. 317, 322-23 (1986). Once the moving party has met that burden, the nonmoving party
must establish that a material fact is genuinely disputed either by "citing to particular parts of
materials in the record" or by "showing that the materials cited do not establish the absence ...of

a genuine dispute." Fed. R. Civ. P. 56(c)(1)(A),(B); Gacek v. Owens & Minor Distribution, Inc..
666 F.3d 1142, 1145-46 (8th Cir. 2012); see also Moslev v. Citv of Northwoods. 415 F.3d 908,

910 (8th Cir. 2005)(stating that nonmovant may not merely rely on allegations or denials). A
party opposing a properly supported motion for summary judgment may not rest upon mere

allegations or denials in his pleading, but must set forth specific facts showing that there is a
genuine issue for trial. Gacek. 666 F.3d at 1145. In ruling on a motion for summary judgment.

'East's initial complaint was filed pro se, and interpretation of the allegations in that initial
complaint matters to a statute of limitations argument made by Dr. Heisler and CCS. The Eighth
Circuit requires district courts to construe pro se complaints liberally. Stone v. Harrv. 364 F.3d
912, 914 (8th Cir. 2004). This means "that if the essence of an allegation is discemible, even
though it is not pleaded with legal nicety, then the district court should construe the complaint in
a way that permits the layperson's claim to be considered within the proper legal framework." Id.
at 915. Importantly, however, this rule of liberal construction does not excuse a pro se plaintiff
from alleging enough facts to support his claims. Id at 914. That is, even though a plaintiff is
proceeding pro se, the district court will not "assume facts that are not alleged, just because an
additional factual allegation would have formed a stronger complaint." Id. at 915.

the facts and inferences fairly drawn from those facts are "viewed in the light most favorable to

the party opposing the motion." Matsushita Elee. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574,
587-88(1986)(quoting United States v. Diebold. Inc.. 369 U.S. 654,655(1962)(per curiam)).

II.

Facts Not Subject to Genuine Dispute.^
A. Treatment of East at Minnehaha County Jail.

East was incarcerated and housed at the Minnehaha County Jail in Sioux Falls, South

Dakota, pending trial on state criminal charges. His stay at the Minnehaha County Jail began on
or about July 2, 2012, and lasted through on or about February 14, 2014, at which time he was
transferred to the care and custody of the South Dakota Department of Corrections and then
incarcerated at Mike Durfee State Prison. Doc. 61 at ^ 3; Doe. 118 at f 1; Doc. 128 at Tf 1.

Defendant Minnehaha County contracted with Defendant CCS to provide medical care and
treatment at the Minnehaha County Jail during the time when East was incarcerated and housed at

that facility. Doe. 61 at 4; Doc. 118 at *|| 2; Doc. 128 at t 2. Defendant Nurse Osbome was
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employed as a nurse by CCS during the time that East was incarcerated at the Minnehaha County
Jail. Doc. 61 at f 5; Doc. 118 at f 4; Doc. 128 at *14. Defendant Dr. Heisler was employed with
Center for Family Medicine, which was contracted by CCS to provide periodic medical care to
inmates at the Minnehaha County Jail. Doe. 119 at

2-5; Doc. 113 at

4-6.

East's foot issues appear to have begun in early April of2013. On Saturday, April 6,2013,

East submitted a "kite"^ reporting a problem with his right foot and requesting to be seen by a
nurse or doctor. Doc. 109 at 8; Doc. 113 at 110; Doc. 128 at 119. A nurse visited East at the

2 This Court takes the facts primarily from those portions ofthe Defendants' Statements of Material
Fact not being disputed by East. The facts eoneeming the claims against PA Adams are taken
from the most recent amended complaint.
^ A "kite" is a formal request by an inmate for services or relief.

Minnehaha County Jail that same day and observed him to have two open wounds on the bottom
of his foot, and East was scheduled to see a doctor then the next Monday, April 8,2013. Doc. 109
at^ 8; Doc. 113 at ^ 10; Doc. 128 atf 19.

On April 8,2013,Dr. Heisler saw East and observed him to have two open three-millimeter
lesions on the ball of his right foot surrounded by callouses. Dr. Heisler thought that East had dug
at blisters such that they were now open, although East did not do so. Dr. Heisler observed no
redness or drainage. Dr. Heisler directed CCS staffto clean and dress the wounds on a daily basis,
but East recalls that CCS did not do so until April 14, 2013. Doc. 109 at Tf 8; Doc. 113 at *[[ 11;
Doc. 128 at 120.

In mid-April of 2013, a medical resident working under Dr. Heisler at Center for Family

Medicine communicated with CCS staff and ordered Cephalexin/Keflex''for East. That treatment
then was administered by CCS staff twice daily to help healing and to address possible infection.

Doc. 109 at H 8; Doc. 113 at f 12; Doc. 128 at 121. From April 14 through April 28, 2013, CCS

documented providing almost daily wound care to East, including, but not limited to, unwrapping,
observing, cleaning, and treating with triple antibiotic ointment, petroleum, or a 50/50 mix of
hydrogen peroxide and water, and covering the blistered area ofthe foot at least once daily. Doc.
109 at t 8; Doc. 113 at f 13; Doc. 128 at H 22.
A certified nurse practitioner under Dr. Heisler's supervision communicated with CCS
staff about East and ordered another round of the Cephalexin/Keflex, which CCS staff then
administered to East three times daily between April 25 and May 5, 2013, to help healing and to

address possible infection. Doc. 109 at T| 8; Doc. 113 at ^ 14; Doc. 128 at ^ 23. Between April 29
and May 5, 2013, CCS staff continued to document providing almost daily wound care to East,

* Keflex is a brand name for the oral antibiotic pill whose generic name is Cephalexin.
6

including unwrapping, observing, cleaning, treating, and covering the blistered area ofEast's foot.
Doc. 109 at^ 8; Doc. 113 at 115; Doc. 128 at|24.
On May 6 and 7, 2013, Dr. Heisler examined East's foot during wound care checks.

Despite the two courses ofantibiotics that had been administered,the lesions on the foot had grown

to quarter size. East's foot wounds had been draining, had a foul smell, and appeared to change
from white or pink to being more red. Doc. 113 at 16; Doc. 128 at 25. Between May 8 and
||

May 21, 2013, CCS staff continued to document daily wound care to East, again including
unwrapping,observing, cleaning, and treating with triple antibiotic ointment, petroleum,or a 50/50
mix of hydrogen peroxide and water, and covering the area daily. However, East did not receive
wound care on April 25 or on May 8 or 9,2013. Doc. 113 at ^ 17; Doc. 128 at ^ 26.
A medical resident working at the Center for Family Medicine under Dr. Heisler's

supervision communicated with CCS staff on or about May 22, 2013, to order Clindamycin^ for
East. CCS staffthen administered Clindamycin three times daily to East to address infection issues

from May 22 through May 29, 2013. By this point there was a concern about East's toe having
cellulitis, which is a spreading bacterial infection ofthe skin and subcutaneous tissues. Doc. 113

at f 18; Doc. 128 at 127. The medical resident did the daily cleaning of East's wound so that it
could be examined on May 24, 2013, as a part of the ongoing daily wound care being provided.
Doe. 113 at

19-20; Doc. 128 at

28-29. From May 25 through June 18, 2013, CCS staff

continued to provide the daily wound care, ineluding unwrapping, observing, cleaning, and

treating with triple antibiotic ointment, petroleum, or a 50/50 mix of hydrogen peroxide and water,
and covering the infected area. Doc. 113 at ^ 21; Doc. 128 at ^ 30.

^ Clindamycin is a different oral antibiotic.
7

During this time, on or about June 7, a medical intern working under Dr. Heisler
communicated with CCS staffto order a different antibiotic, Bactrim, which was then administered

twice per day to East by CCS staff. Doc. 113 at 22; Doc. 128 at ^ 31. The intem's records
|
reflected a worsening of East's condition, now characterized as foot cellulitis as of June 7, 2013.
Doc. 113 atf 22; Doc. 128 at^f 31.
On June 12, 2013, Dr. Heisler evaluated East after his foot had been cleaned. Dr. Heisler

noted East's history of antibiotic treatment and observed that the wound on the bottom of his right
lateral foot was tracking into the proximal foot a little. This tracking indicated to Dr. Heisler that

there was potential for a deeper infection than what had previously been observed by her and others
up to that point. Doc. 109 at f 8; Doc. 113 at 23; Doc. 128 at f 32. Dr. Heisler ordered daily
|
wound care change to include irrigation with peroxide,together with a change in shoes,to help the
wound heal. Dr. Heisler informed CCS staff that she wanted to see East again in three weeks and

recorded in her progress notes to consider wound care referral if East had not improved in that
time on the wound care regimen and Bactrim antibiotic. Doc. 109 at f 8; Doc. 113 at f 24.
Between June 19 and July 10, 2013, CCS staff continued to provide the daily wound care

of unwrapping, observing, cleaning, and treating East's foot at least once daily. Doc. 109 at 8;

Doc. 113 at 125; Doc. 128 at 133. Around this time, a nurse told East that he needed to go to the
hospital because his foot was badly infected, but that she could do nothing more for East because
Dr. Heisler was her superior. On June 22, 2013, East filed a grievance when he did not receive
wound care on that day. The sheets documenting the wound care suggest that East's wound
fluctuated in color and depth, sometimes being described as pink and then "black hard" and then
"red/white." On July 4 and 5, 2013, medical staff documented a foul odor from the wound. Doc.
113 att26; Doc. 128 at TI34.

8

On July 9,2013,Dr. Heisler rechecked East's wound,apparently thought it was improving,
and ordered a change in the type of gauze with the dressing to be removed at night to let the wound
air out. Dr. Heisler planned to see East in another two or three weeks. Doc. 109 at f 8; Doc. 113
at 126; Doc. 128 at T[ 34. From July 11 through July 23,2013, COS staff continued to provide the

daily wound care of unwrapping, observing, cleaning, and treating the foot at least once daily.
Doc. 113 at Tf 28; Doc. 128 at ^ 35.

On July 23, 2013, Dr. Heisler rechecked the wound, noting a seven-millimeter hardened
scar around the ulcer that seemed to be preventing healing. Dr. Heisler ordered six more weeks of
treatment and daily cleaning, with plans to trim the callous to help the healing process ifthere was

no improvement. Doc. 113 at f 31; Doc. 128 at f 37. From July 23 to August 5, 2013, COS
continued to provide the daily wound care. Doc. 113 at 132; Doc. 128 at 138.
On August 7,2013,a certified nurse practitioner under Dr. Heisler's supervision examined
East's foot and noted an "acute onset ofedema" and "decreased sensation [in the]foot." The nurse

practitioner recorded that East was "unable to differentiate soft/hard touch on sole, dorsal surface."
The nurse practitioner observed a nickel-sized lesion and mild erythema and "suspected" an
ascending infection. Doc. 113 at 33; Doc. 128 at 39. The nurse practitioner ordered a new
||
round of Bactrim to treat possible infection. The same nurse practitioner did a follow-up
examination on East on August 9, 2013, believing the woimd to have improved. However, the
wound care flow sheets at this time noted a moderate yellow discharge and no diminishment in the

size of the woimd. Doc. 113 at T| 34; Doc. 128 at T| 40. Between August 6 and August 12, 2013,
CCS staff continued to document the daily wound care consistent with what had been done

throughout much of the summer of 2013. Doc. 113 at ^ 35; Doc. 128 at T| 41.

On August 12, 2013, a Center for Family Medicine medical resident working under Dr.
Heisler examined East and noted that the ulcer was "getting better on Bactrim." Although the

physician thought the wound was stable, the length of time that the wound was taking to heal
prompted continuing Bactrim and scheduling East for the wound clinic. Doc. 113 at ^ 36; Doc.
128 at ^ 42. On August 15, 2013, Dr. Heisler ordered an x-ray of East's foot, which was taken on
August 16, 2013. An outside provider read the x-ray as showing possible osteomyelitis (infection
of the bone) of East's fifth metatarsal. Doc. 113 at f 37; Doc. 128 at T| 43. Dr. Heisler evidently
was surprised to leam of the osteomyelitis discovered by the x-ray, as that condition was far more
serious than what Dr. Heisler thought she was treating.

Because of the radiologist's concern of possible osteomyelitis. Dr. Heisler and others
scheduled visits for East to see various specialists, including a wound care specialist, an infectious
disease specialist, and an orthopedic physician. Doc. 113 at 41; Doc. 128 at 47. Those
| |

specialists took over care of East's foot beginning on August 20, 2013, although CCS staff
continued to do the almost daily wound care from August 22 through September 24, 2013. Doc.

128 at TfTI 49-50. On August 31, 2013, East submitted a kite stating that he did not want to go to
Avera McKerman Hospital for treatment of his foot because it felt fine,the wound was healed, and

he was going to be leaving the Minnehaha County Jail soon. Doc. 128 at Tf 51. East asserts that
he first became aware of the true seriousness of his condition, and thus his § 1983 cause of action

accrued against Dr. Heisler and CCS,on September 4,2013. Doc. 114 at 3. After further testing,
the orthopedic surgeon recommended amputating East's small toe, which was performed on
September 24,2013. Doc. 113 at 142; Doc. 128 at T|49.

Between April of 2013 and mid-August of 2013, East was treated for wound care almost

daily by CCS nursing staff. Doc. 128 at T| 52. During that same time frame of April of 2013

10

through mid-August of2013, at least five different physicians or nurse practitioners, including Dr.

Heisler, either examined or entered orders for East's care. Doc. 128 at 153. In that time frame of
April of2013 through mid-August of2013,East was treated by a physician or a nurse practitioner
on at least fourteen different occasions. Doc. 128 at ^ 54.
East was hospitalized at Avera McKennan Hospital for the toe amputation surgery from

September 24 through September 30, 2013. He returned to the custody ofthe Minnehaha County
Jail on September 30,2013, where Nurse Osbome was involved in East's post-surgical care. Doc.
128 at

62. After his discharge from the hospital, a Center for Family Medicine physician

supervised by Dr. Heisler ordered Norco® discontinued,and East experienced a delay of more than
eight hours after his hospital-prescribed pain medication had been discontinued until Tylenol was
administered.

East's physician ordered laboratory tests to be done periodically and for

Daptomycin^ by IV for six weeks, Ceftriaxone^ by IV daily for six weeks. East's PICC line was
ordered flushed every day with Heparin (an anticoagulant), changes to the site dressing every
week, and no blood draws from the arm in which the PICC line was placed. East was placed in

medical observation housing within the Minnehaha County Jail. Doc. 128 at 62. East maintains
that CCS personnel were not complying with orders and proper procedure for maintenance of the
PICC line and points to the records not indicating that the PICC line site dressing was dressed
weekly as ordered. Doc. 128 at 63.

On October 2, 2013, a nurse practitioner ordered Ibuprofen three times per day to control

East's pain. Doc. 128 at •[[ 63. When East had a surgery follow-up with the orthopedic surgeon on

® Norco is a brand name for hydrocodone/acetaminophen, which is an opioid and non-opioid
combination designed to relieve moderate to severe pain. East had received Norco when
hospitalized.

^ Daptomycin is an antibiotic used to treat systemic and life-threatening infections.
® Ceftriaxone is used to treat bacterial infections.
11

October 6 or 7,2013, the surgeon ordered a hard sole shoe, indicated that it was okay for East to
take Tylenol and Ibuprofen as needed for pain, and directed follow-up as needed. Doc. 128 at
|
64.

On October 8, 2013, East submitted a kite reporting pain in the location of his PlCC line
and requested to see a nurse. Although the nurse wrote "urgent" on the kite and stamped it October
9,2013, no nurse saw East imtil October 10, 2013,at 4:30 a.m. Doc. 128 at ^ 65. On October 10,
2013, East was transferred to Avera McKennan Hospital's emergency room for evaluation. Doc.

128 at 166. An infectious disease physician evaluated East at the hospital and determined that the
current PICC line should be removed and replaced with a new line at a different site, ordered new

blood work, and referred East back to the orthopedic surgeon for surgical site dehiscence.^ Doc.
128 at Tf 67. The infectious disease physician found the PICC line to be dislodged, which East
attributes to a CCS nurse pulling out the line and then pushing it back in. Additional testing
ordered by the infectious disease physician was added to East's weekly blood draws from the
Minnehaha County Jail. Doc. 128 at Tf 69.

When East returned to the Minnehaha County Jail at 11:25 p.m. on October 10, 2013, he

complained of pain in his left arm where the PICC line was replaced and was seen by a nurse.
Doc. 128 at ^ 70. East says he was denied pain medication until 7:45 a.m. on October 11, 2013,
however. Doc. 128 at 70. A nurse practitioner evaluated East around 10:46 a.m. on October 11,

2013,finding the PICC line intact with mild swelling around the site, no induration, no fluctuance,
no ecchymosis, and no masses. Doc. 128 at ^ 71. East submitted another kite at 7:00 p.m. on
October 11, 2013, reporting pain in his right foot, right arm, left arm, ehest, and heart. Doc. 128
at 172.

'
Dehiscence is a surgical complication in which a wound ruptures along a surgical incision.
12

On October 12, 2013, a nurse evaluated East, finding his right foot to be cold to the toueh,
his pedal pulse to be weak, his foot to be pale in color, and capillary refill to be less than three
seconds. The nurse called the on-call provider, who directed that East be sent to the Avera

McKennan Hospital emergency room immediately. East recounts that the nurse had to call jail
staff three times before a COS staffer responded, however. Doc. 128 at f 73. At the hospital on

October 12, 2013, East imderwent a Duplex ultrasound for possible deep vein thrombosis in his

right lower extremity that retumed no evidence of either deep or superficial deep vein thrombosis.

Doc. 128 at Tf 75. East also imderwent an MRI of his thoraeic and lumbar spine, which was

interpreted as providing no explanation for the right lower extremity weakness but eonfirming
spina bifida consistent with East's preexisting history of that condition. Doc. 128 at ^ 77. A

neurologist also evaluated East and found signs of Raynaud's disease'® in all four extremities, and
ordered Gabapentin", an MRI of East's head, and pain service consult. Doc. 128 at ^ 78. East
then underwent a cranial MRI which was read as normal. Doc. 128 at 79. On October 14,2013,

East was discharged from the hospital with instruction for regular diet and activity as tolerated,

prescriptions for Daptomycin and Ceftriaxone by IV daily until November 7, 2013, Gabapentin,
Ibuprofen, Tylenol, and Imodium and a daily multivitamin to be taken orally. At the Miimehaha
County Jail, East received the medication as ordered. East believes that he was to receive a pain
service consult to consider a nerve block and possible continuing consultation for the Raynaud's

disease, but recalls no such consultations occurring while he was at the Minnehaha County Jail.

Doe. 128 at H 80. On October 15,2013,a physician under Dr. Heisler's supervision entered orders

Raynaud's disease is a rare disorder of the blood vessels, typically in the fingers and toes, that
causes narrowing of vessels when a person is cold or stressed.

" Gabapentin is a medication with multiple applications, including to control seizures and to
relieve nerve pain.
13

at Minnehaha County Jail for administration of the medications prescribed by the hospital. Doc.
128 at

81.

East recalls that Nurse Osbome expressed displeasure that East was complaining about her
handling of the PICC line to doctors and filing grievances at Minnehaha County Jail. East
attributes the removal of the original PICC line and the development of PICC line infections to
Nurse Osbome's conduct. Doc. 128 at ^ 82. East, CCS,and Nurse Osbome disagree over whether

Nurse Osbome followed appropriate procedures for East's IV infusions at all times that she
administered medications and whether East developed an infection at the site of his PICC line.

Doc. 128 at

84-86. East, being the non-movant for summary judgment, has filed an affidavit

stating that Nurse Osbome and other CCS staff did not set the IV drip to the correct rate at times,
did not administer the medications at 24-hour intervals, did not allow the required five seconds for

the hub to dry after cleaning, did not wear gloves when handling the PICC line and medication,

gave East expired medication, scolded East when he touched the medicine bag to examine the

expiration date, used an unsanitary holding cell for the administration of the medication, and
refused to give East a garbage bag to cover his arm while showering, instead instmcting him to

just hold his arm out of the shower. Doc. 128 at ^ 84. East recalls a CCS nurse reporting to him
that Nurse Osbome had acknowledged to her a minor infection in East's PICC line. Doc. 128 atf
85.

On October 16, 2013, a nurse practitioner examined East at Minnehaha County Jail after a

dressing change, observed the wound to be okay, had no concems, and ordered application of
athlete's foot cream between East's right toes during the daily bandage changes. Doc. 128 at 87.

On October 22, 2013, the orthopedic surgeon saw East for a follow-up and observed East to be

independent in his activities of daily living, believed no dressing was needed, and suggested a

14

band-aid to be applied if East desired. Doc. 128 at f 88. On October 24, 2013, East had a postsurgery follow-up with the infectious disease physician, who ordered continued use of the PICC
line for dosage of Daptomycin and Ceftriaxone until November 7, 2013. East received those

antibiotics through November 7, 2013. Doc. 128 at ][ 89.

On November 1, 2013, after jail correctional officers observed East throwing up on jail
surveillance cameras. East was seen by a nurse who called an on-call physician. Doc. 128 at
90-91. When East's PICC line was changed, however,there were no signs ofinfection. The next
day when the nurse evaluated East, he had rested through the night and had no complaints. Doc.
128 at

93-94. On November 3, 2013, a doctor ordered that East be monitored for reports of

any abdominal discomfort, to monitor his PICC line insertion site for increased bleeding, and to
call if East needed to go to the emergency room. Doc. 128 at ^ 95. At 9:50 a.m., within two hours
ofthe physician's order. East was transferred to Avera McKennan Hospital's emergency room for
complaints of abdominal pain, loose stools, and PICC line leaking. Doc. 128 at T| 96. East
underwent a CT scan of his abdomen, which was interpreted as normal, though with colonic fecal
residual suggestive of constipation. Doc. 128 at f 97. The laboratory tests done at the hospital
were unremarkable. Doc. 128 at ^ 98.

East returned to the Minnehaha Coimty Jail on November 4,2013, where a doctor saw East

and determined that his PICC site was well bandaged with no sign of bleeding or infection. Doc.

128 at f 99. On November 8, 2013, East received the last antibiotic doses through the PICC line,
consistent with the order ofthe infectious disease physician. Doc. 128 atf 100. East's weekly lab

results were normal. Doc. 128 at 1102. East's PICC line then was removed and he was returned

to the general population at the Minnehaha County Jail until his sentencing and transfer to Mike
Durfee State Prison. Doc. 128 at ^ 103.

15

B. Treatment of East at the Mike Durfee State Prison.

East has been housed at Mike Durfee State Prison(MDSP)in Springfield, South Dakota,
since on or about April 3, 2014. Doc. 86 at ^ 10. East notified MDSP that he was experiencing
right foot pain on June 30, 2015. Doc. 86 at T| 11. East at that time reported that he had been

experiencing pain in his foot "at least a week" but the "last two days have been worse." Doc. 86

at 112. East further said that the pain in his foot started "last week" but escalated when he "started
to limp." East said that the "swelling started four hours ago," during a time when he was taking a
nap. Doc. 86 at 113.

Upon examining East's foot, MDSP Elealth Services noted "swelling on the whole lower

top ofthe foot." East reported pain that traveled up his leg, so arrangements were made to transfer
East to the Avera Sacred Heart Emergency Department in Yankton. Doc. 86 at

15. At the

emergency department, x-rays were taken and East was diagnosed with cellulitis in his right foot.
Doc. 86 at^f 16-17.

Upon his return to MDSP,Health Services obtained orders for oral antibiotic treatment and

a protocol using Motrin/APAP^^ for discomfort. Doc. 86 at f 17. When East reported to MDSP
Health Services for a recheck of his right foot on July 3,2015,there were no signs ofinfection and

the attending provider noted only "slight swelling in top offoot." East himselfreported "decrease
in pain" and that he was "able to move all toes." Doc. 86 at 118.

MDSP Health Services again saw East on July 6, 2015, when East reported that his "pain
is controlled at this time." East said that the "swelling has gotten worse since Friday, but better

since last Tuesday." Doc. 86 at ^ 19. When MDSP Health Services rechecked East's foot on July
9, 2015, East was deemed to have "moderate athlete's foot/foot fungus" and was insured to be

In this context, APAP refers to acetyl-para-aminophenol, an analgesic drug.
16

taking the antibiotics as directed. Nursing staff was directed to "check area weekly as ordered by
provider." Doc. 86 at f 20. On July 13, 2015, East was rechecked and expressed "concern with
continued swelling to the anterior right foot." However,upon examination ofthe foot,the swelling
was deemed "very minimal and only to the areajust above the toe on the interior right foot." East
was "referred to provider to determine need to continue monitoring or need to renew/extend
antibiotic treatment." Doc. 86 at 122.

PA Hanvey saw East on July 14, 2015, for "follow up cellulital emergency department

right foot." East reported some mild swelling involving the right foot, but stated that "redness and
swelling significantly improved." East at that time denied any "numbness or tingling." Doc. 86

at123. Upon examination,PA Hanvey noted "mild soft tissue swelling involving the dorsal aspect
ofthe foot" with "minimal erythema involving the web spaces of the third and fourth digits." PA

Hanvey recorded that based on East's history of osteomyelitis in the past, he was prescribing
Bactrim twice daily orally, and instructed East to return if there were problems. Doc. 86 at Tf 24.

On September 16, 2015, MDSP Health Services saw East for "follow up chronic foot pain
and cellulitis." The record documented that East had developed cellulitis in the last week of June

of2015 and had completed six weeks of antibiotics as of August 12,2015. East at that time denied

any recurrent redness, but mentioned having some chronic pain involving the dorsum of the foot.

Doc. 86 at T| 25. PA Hanvey upon examining the foot found a "significant hallux valgus'^
deformity involving the right great toe with bunion formation with tenderness." PA Hanvey
ordered x-rays of the right foot "to rule out metatarsal stress fracture" and referred East for a
custom orthotic. Doc. 86 at 126.

"Hallux valgus, also sometimes called a bunion, is a common forefoot deformity where a painful
bony bump develops typically on the inside ofthe foot at the big toe joint.
17

The x-ray of East's foot occurred on September 19, 2015, and revealed "healing
comminuted fracture of the mid-shaft of the second metatarsal with moderate lateral and dorsal

angulation ofthe fracture fragments." The x-ray also revealed "additional healing fracture" which
"involves the distal aspect of the third metatarsal" as well as an old healed fracture of the fourth
metatarsal. Doc. 86 at ^ 27. PA Hanvey reviewed the x-ray results on September 22, 2015, with
East, who reported no history of trauma despite the healing or healed fractures. PA Hanvey upon
examining East's right foot"noted continued dorsal swelling with tendemess over the first, second

and third metatarsals." PA Hanvey placed East in a CAM walker*'* with crutches and referred East
to podiatry for definitive treatment and follow-up. Doc. 86 at 28. Although MDSP Health
|
Services had previously referred East for an orthotic, MDSP Health Services decided to place this
referral on hold until the stress fractures had healed.

East was recorded to have "voiced

understanding of his diagnosis treatment and follow-up." Doc. 86 at T| 29.
East saw an outside medical doctor on October 21, 2015, who recorded that East had been

"non-weightbearing with crutches for a little while." The physician recommended that East
continue to be "non-weightbearing with cast immobilization of his right lower extremity for 2

months."

The physician recommended that East use a wheelchair and that after cast

immobilization. East then could start ambulating in the hall with a walking boot. Doc. 86 at 30.

The doctor's contemplation seemed to be that East be in a wheelchair for a two-month period. Id.
On October 23, 2015, East was placed in a below-the-knee cast for his right lower

extremity. A physician told East to be non-weightbearing on his right foot and to use a wheelchair
at all times. Doc. 86 at 34. The physician record stated "I do recommend wheelchair due to

"A CAM walker is a controlled ankle motion boot designed to allow weightbearing on an injured
foot without further injury.
18

spina bifida and weakness in lower extremity," but included that East "needs wheelchair or

crutches—^whatever is allowed." Doc. 86 at t 35. East told the nurses upon his return to MDSP
that he would not use his crutches and would only use a wheelchair. PA Hanvey told East that"he
must use crutches for short distance transfers and ambulation," but "that he may use wheelchair
for convenience for long distance transfers." Doc. 86 at ^ 36. East and PA Hanvey clashed over
whether East would use crutches at all with East maintaining that his doctor wanted him only in a
wheelchair. Id. PA Hanvey told East that if staff observed him ambulating without crutches,
Hanvey would recommend placing him in the Special Housing Unit(SHU)to prevent further selfharm. Doc. 86 at 138.
Part of East's claims about MDSP Defendants being deliberately indifferent to his serious
medical needs relate to his conflict with PA Hanvey over use ofcrutches for short transfers instead

of use ofa wheelchair only during the time when he had his foot in a cast. East suffered a sprained
left ankle while using crutches during this time. Doc. 47 at Tf 56. When East saw the outside

physician on October 23, 2015, East reported that he "stepped on his left foot yesterday and felt
something pop and now is having pain in the left foot as well." Doc. 86 at ^ 48. East had not

reported any injury to his left foot on Oetober 22, 2015, to MDSP Health Services and had not
submitted a kite or request for sick call concerning any sprained ankle or left foot issue on October
22,2015. Doc. 86 at 49. East did not report having a sprained ankle when he was seen at MDSP
Health Services on October 23, 2015, and instead the record states that East was "able to

demonstrate proper use of crutches after they were adjusted for him." Doc. 86 at f 50. MDSP
Health Services recorded East to be "initially very unsteady with the crutches," but "improved

after practice down the hallway in medical." East did not complain to MDSP Health Services that
he was unable to use the crutches as a result of any sprained left ankle. Doc. 86 atf 51.

19

On October 24, 2015, East told MDSP Health Services that he had a sprained left ankle,
and MDSP Health Services recorded East to say that he sustained the injury on the evening of
October 24, when "trying to get out of his wheelchair to utilize his crutches after a phone call with
his mother." Doc. 86 at 52. East denies having told MDSP Health Services any such thing and
|
maintains that he was not allowed to use his wheelchair within the unit during that time, but rather

had to park it in an aisle so that it remained visible from the unit pod. East recalls hurting his ankle
when, after ending a call with his mother while sitting in a chair, he stood up to use his crutches.
Doc. 86 at T| 52. East, in fact, reported later to MDSP Health Services that his left ankle was hurt
when he "grabbed onto his crutches and put full weight on his left foot to stand up" and then
"immediately felt a sharp pain." Doc. 86 at 53.
Regardless of whether East sprained his left ankle on October 24, 2015, or before, and

regardless of the exact manner of the injury, the outside physician examined East's left foot on
October 23, 2015, and noted no swelling, no redness, and no ecchymosis. Doc. 86 at Tf 54. An x-

ray taken that day was read as negative. The physician's assessment was that East had an "acute
painful sprain midfoot left foot, date of injury October 22,2015." Doc. 86 at 54.
On October 24, 2015, when MDSP Health Services saw East, he was wearing a black,

medical-issued non-weightbearing boot on his left foot, which had been given to him by the private

physician to protect from reinjuring the sprained ankle or foot. Doc. 86 at Tf 55. By the time East
was examined at MDSP Health Services on October 24, 2015, he did not appear to be in acute

distress and did not verbalize any pain when the ankle was assessed. Doc. 86 at Tf 57. MDSP

Health Services saw East again on the morning of October 25,2015,to recheck the pain in the left

foot and he appeared to be in no acute distress. East had taken Tylenol and Motrin the night before

and reported the left foot pain being improved from how it was the previous day. Doc. 86 at 158.

20

On November 25,2015, East saw a physician who recorded that East had been in a cast for

a month and complained of no pain. The x-ray report from that day showed improvement in the
stress fracture from four weeks earlier. Doc. 86 at T| 39. The physician did not place East back
into a cast, but elected to let East "ambulate in the walking boot as long as no pain, redness or
swelling develops." Doc. 86 at f 40. MDSP Health Services clarified with the outside physician

that it was okay for East to ambulate in the walking boot as long as he had no pain or swelling.
MDSP Health Services instructed East to ambulate and use crutches as he needed them. Doc. 86

at 141. The wheelchair that East had been using was left at medical. East was instructed that he
could return to crutches until he felt that he no longer needed them, and East voiced that he might
use the crutches for a little while longer. Doc. 86 at 142.

When East saw the outside physician on November 25, 2015, East asked questions about

possible surgery to his right foot, to which the physician responded that the only possible surgery
would be for the bunion that would involve "wedge arthrodesis of the first metatarsal cuneiform

joint'^." Doc. 86 at Tf 59. When East returned to the outside physician on January 4, 2016, East
said that he "would like to return around February and if necessary entertain surgery on the

bunion." Doc. 86 at 160. That physician, however,thought that no surgery was necessary for the
bunion unless it was painful or caused problems. Id
East reported pain and other problems caused by the right foot bunion, so the prison
arranged for East to see the outside physician on March 8,2016. Doc. 86 atf 61. East at that time

reported his main complaint being "large painful bunion right foot," which caused him to have
trouble wearing a shoe. The physician discussed with East the possible surgery for reducing the

bunion deformity, which East was hoping to undergo. Doc. 86 at f 62. The physician discussed

This is a surgery to correct sever hallux valgus deformity.
21

the pros and cons of surgical and non-surgical treatments, and East wished to proceed with the
surgery. Doc. 86 at 163. The physician advised East that he would contact PA Hanvey to work

through the prison system to see if the bunion surgery would be allowed. Doc. 86 at Tf 63.
On April 11, 2016, MDSP Health Services saw East for a preoperative physical
examination prior to the bimionectomy on his right foot. The records disclose that East "really
denies any other problems or complaints today." East was cleared for the surgery. Doc. 86 at f
64.

On April 13, 2016, East underwent surgery for the removal of the bunion, which included

the placement of a small stainless-steel locking plate on his first metatarsophalangeal joint held in
place by five locking screws. Doc. 86 at ^ 65. After the surgery. East received a "post op shoe"
with instructions to be either on crutches or in a wheelchair. Doc.86 at T|66. The outside physician

who performed the surgery saw East on April 22, 2016, noting that East had been walking on the
heel or using a wheelchair and directed East to "continue ambulation only at heel and lateral foot."

Doc. 86 at ^ 67. The physician who performed the surgery saw East again on May 6, 2016, for
another postoperative evaluation. East reported that he had no pain. East was directed to continue
ambulation only on his heel and lateral foot for the next three weeks. Doc. 86 at T[ 68.

On May 19, 2016, MDSP Health Services saw East in response to East reporting his right

great toe to be red, swollen, and draining. According to East, he was "wiggling his toe and felt a
pop last night." Doc. 86 at Tf 69. MDSP Health Services made arrangements to send East to the
emergency department of Avera Sacred Heart Hospital that day. East told a physician at Avera
Sacred Heart Hospital that he "bent his toes in bed, he felt something crack in the great toe where
he had his surgery." Doc. 86 at f 70. The attending physician at the emergency room diagnosed
East with an ingrown toenail of his right great toe, with secondary cellulitis. Doc. 86 at Tf 71.

22

MDSP Health Services saw East on May 30, 2017, because East had concerns about his

toenail not growing and causing inflammation and drainage in the area where he had the surgery.
East asked whether his toenail needed to be removed. Doc. 86 at ^ 72. East also worried about

his great toe starting to curve again. MDSP Health Services felt that due to his past history of
surgeries and ongoing issues with his feet that a provider appointment ought to be scheduled to
evaluate the issues. Doc. 86 at ^ 73.
PA Adams,on June 5,2017,saw East. East described having slight pain with a lump over

the medial aspect near the incision and was wondering if he had an issue with the hardware from
the surgery. Doc. 86 at ^ 74. PA Adams examined the right great toe, found a "slight prominent
lump over the medial aspect ofthe incision that is slightly tender to palpation," and noted that the

great toe was "starting to deviate over the second toe." PA Adams ordered an x-ray of the right

foot, with plans to have East's foot surgeon review it. Doc. 86 at ^ 75.'®
On June 6,2017, East learned that the x-rays of his foot were negative. East recalls being
told that he needed to exercise more, so he tried to jog despite the pain in his foot. East submitted
a kite dated June 13,2017, stating that he had injured his foot while jogging. East did not receive

a referral to the outside podiatrist until June 21, 2017, and did not actually see that outside
podiatrist until June 28, 2017. Doc. 86 at 176.
MDSP Health Services did see East on June 14, 2017, at which time East reported that he

was "jogging one lap on track at rec" when his "foot, ankle and knee started hurting." Doc. 86 at

% 78. MDSP Health Services issued East crutches and an ACE wrap to be used for seven days.

The information concerning East's June 5, 2017 visit to PA Adams is not disputed by East, but
is more than what is contained in the allegations against PA Adams in East's most recent

complaint. PA Adams has made a motion to dismiss, so this Court must look to the well-pleaded
allegations of the most recent complaint initially in deciding if an action is stated against PA
Adams.
23

and later scheduled an appointment with the podiatrist for evaluation of worsening pain in the right
foot. Doc. 86 at ^ 79.

When the podiatrist saw East on June 28, 2017, East recoimted his effort to get more
exercise and hurting the foot while jogging. X-rays of the foot showed the hardware to be intact

"for the most part." There was a "fractured screw holding the plate to the bone." Doc. 86 at 180.
The podiatrist discussed surgical and non-surgical options with East at that time. Doc. 86 at f 81.
The podiatrist planned to discuss with the primary care providers at the prison the possibility of
getting permission for a revision of the right foot surgery. In the interim. East was told that he
"may walk to tolerance, increase exercise levels, and use wheelchair for long distances." Doc. 86

at ^ 82. The podiatrist ran through options with East, including removal of the hardware,
arthroplasty or arthroplasty implant, or even amputation of the right hallux." The podiatrist and
East agreed upon a procedure to remove the hardware and ultimately arthrodesis (the surgical
immobilization of a joint by fusion ofthe adjacent bones) with bone graft. Doc. 86 at ^ 83.
The prison cleared East for surgery and East saw MDSP Health Services for a pre-surgical
evaluation on July 14, 2017. East underwent surgery on July 19, 2017. Doc. 86 at f 84. East's
claim for deliberate indifference to serious medical need against Unit Coordinator Foley concerns

in part East not getting his own wheelchair after the July 19, 2017 surgery. Doc. 47 at 162. East
instead had to use the unit's wheelchair until August 2,2017, after which he was assigned his own

wheelchair. Doc. 47 at 62; Doc. 86 at ^ 85. During this time, however. East twice was denied
|
the use ofthe unit wheelchair when it was needed by other inmates. Doc. 86 at 85.
|

The podiatrist, in his July 19, 2017 report, stated that East "can use right foot to transfer."
Doc. 86 at ^ 87. MDSP Health Services instructed East to use crutches for partial weightbearing
on his foot and for transfer with wheelchair for long distances. Doc. 86 at 187. On July 30,2017,

24

East submitted an "informal resolution request" asking for wheelehair assignment, although he did
not complain to MDSP Health Services about denial of the use of a wheelchair between July 19
and August 2, 2017. Doe. 86 at T| 88. The podiatrist saw East on July 27, 2017, for a one-week
follow-up after the right foot surgery, and East did not mention denial of wheelchair use to him
during that visit. Doe. 86 at ^ 89. East, however, reiterated his request for his own wheelchair
when seen by MDSP Health Services on August 2, 2017. Doe. 86 at 192. East did not suffer any
further injury to his foot and by the time of his August 9, 2017 visit with the podiatrist was
reporting no pain in his right foot nor trouble moving the toes of his right foot. Doc. 86 at 93.
|

East's right foot had no signs ofinfection,the incision site was healing, and the sub-capillary refill
time was immediate for all digits ofthe right foot. Doc. 86 at ^ 94.
East also claims that Unit Coordinator Foley refused East's request to be housed in an air-

conditioned area post-surgery consistent with the podiatrist's direction. Doe. 47 at f 66. Indeed,

the podiatrist on July 29, 2017, had recommended that East"be in air conditioning for one week"

following the 2017 surgery. Doe. 86 at 195. East was in the air-conditioned prison infirmary for
a 24-hour observation period after the surgery on his right foot, and at the time of the discharge

from infirmary had no acute distress or complaints ofpain. Doc.86 at 96. East went back to his
non-air-conditioned unit for the night ofJuly 20,2017, where it was very hot. East's father learned

of the situation and complained, and the prison transferred East back to acute infirmary sheltered

housing, which was air conditioned, on July 21, 2017. Doc. 86 at

96-97. East maintains that

he did not have access to clean water in the infirmary shelter unit and did not receive pain

medication as prescribed there. Doc. 86 at f 98. When the temperatures fell into the 80s, East

requested discharge back to his unit, but the prison chose to house him an air conditioned unit
through July 27, 2017, consistent with the podiatrist's recommendation. Doc. 86 at T[TI 99-100.

25

Housing East in an air-conditioned unit lessened the ehance of infection because of extreme heat;

the records after the July 19, 2017 surgery establish that East did not develop an infection as a
result of being out of an air-conditioned environment for parts of July 20 and 21, 2017. Doc. 86
at til 102-05.

East's § 1983 claims include that MDSP provided him a walking boot after surgery that
was too big for his foot. Doc. 47 at t 70. On October 10, 2017, the podiatrist saw East who was

ten weeks post operation, noted that East was having no pain, and prescribed a protective boot to
wear on his right foot. Doe. 86 at H 106. East was to wear the walking boot to start ambulating
and then to return in three weeks for a recheck and x-rays ofthe right foot. Doc. 86 at If 108. PA

Adams and nursing staff at MDSP Health Services had provided a right foot boot previously on

August 28, 2017, to East. Between August 28 and October 10, 2017, MDSP Health Services
regularly had seen East and East had not complained about the boot issued on August 28, 2017.

Doc.86 at If 110. On October 10,2017,the podiatrist recommended that East be provided a smaller
boot. Doc. 86 at If 111. MDSP did not have a smaller boot in stock and learned that the other

prison facility (the South Dakota State Penitentiary in Sioux Falls) only had large walking boots
as well. Doc. 86 at If 112. The prison sought a boot from another facility in Yankton, but that

facility did not have smaller boots either. Doc. 86 at If 113. Nursing staff discussed ordering a
smaller boot, but chose not to do so because East needed the boot for only three weeks and it eould

take longer for a smaller boot to arrive. Doc. 86 at If 114. PA Adams, upon learning this, was
okay with the plan to leave East in the eurrent boot, as long as East's foot was not sliding about in
the boot. Doc. 86 at If 115. Nursing staff then examined East's foot in the boot and deemed it
"snug around heel, foot and leg," but simply "long in nature." Doc. 86 at If 116.

26

On October 17, 2017, East reported to MDSP Health Services with a chief complaint of
right ankle and foot pain, with swelling to the right ankle. East said that the pain had been present
since that morning. East recalls telling MDSP Health Services that he felt he had injured his ankle
while wearing the boot, although MDSP Health Services records did not record that statement.

Doc. 86 at I 118. Nursing staff provided East education on sprains and directed East to use the
wheelchair until he was seen by a provider. Doc. 86 at 1119.

On October 18, 2017,PA Adams saw East for his right ankle pain.'^ East told PA Adams
that he started noticing some discomfort and swelling in his right ankle after he had recently started
to ambulate in the walking boot. Doc.86 at Tf 120. East described the walking boot as "quite bulky
and cumbersome." PA Adams suspected that the swelling and discomfort could be due to overuse,

given that East had spent extended time on non-weightbearing status. Doc.86 at 123. PA Adams
noted some generalized swelling in the ankle, although East's ankle had fairly good range of
motion. Doc. 86 at T| 124. PA Adams decided to obtain x-rays of East's right foot and ankle,
which then were taken on October 19, 2017, and which revealed a "new complex fracture of right

calcaneus'^." Doc. 86 at^f 125.
MDSP officials transported East to the emergency room of Avera Sacred Heart Hospital
on October 24, 2017, where he "denied any recent trauma or new fall." Doc. 86 at ^ 122. At that
time. East had worsening right ankle pain and swelling of his right foot. Doc. 86 at ^ 126.

On October 25, 2017, the podiatrist saw East for what was described as "a new problem

consisting of body fracture of the calcaneus right foot." Doc. 86 at 1127. The podiatrist's report
noted that the new injury occurred after East "began weightbearing after three months of non-

As explained in an earlier footnote,this Court must consider East's allegations in his most recent
amended complaint,rather than these undisputed facts,in ruling on PA Adams's motion to dismiss.
The calcaneus is the largest tarsal bone in the foot and is commonly known as the heel bone.
27

weightbearing." Doc. 86 at T[ 127. The podiatrist discussed treatment options with East and
advised that conservative care would consist of casting for a couple of months with nonweightbearing. Doc. 86 at ^ 128. The podiatrist then plaeed another east on East's right foot on
October 25,2017. Doc. 86 at ^ 129.
A couple of months later on Deeember 28, 2017, the podiatrist removed the cast, took x-

rays of East's right foot, found good healing ofthe fracture, and noted that East eomplained of no
pain. Doc. 86 at 1130. The podiatrist ordered that East start weightbearing "in a short mediumsized walking boot starting today." Doe. 86 at ^ 131. East on that day had with him a tall blaek
boot and a short gray boot. Id. The podiatrist believed both boots, whieh were size large, were

too big for East and thought that a medium boot would be much better. Doe. 86 at ^ 132. The

podiatrist then had a phone conversation with "Stephanie" from the medieal floor at the

penitentiary who had a brand-new short gray medium-sized walking cast boot and agreed to make
that boot available to East. Doc. 86 at 1133.

When East saw the podiatrist on February 16, 2018, for a recheek of the fractured right
heel. East was not experieneing pain and his foot and ankle felt good. The podiatrist suggested

that East's right foot be placed in a regular shoe. Doc. 86 at

134. X-rays taken at the time

revealed good consolidation ofthe calcaneal fracture such that the foot was deemed to be healed.
Doe.86 at Tf 135. As ofthat point. East no longer needed a wheelchair for long distances and eould
use a shoe with an insert. Doc. 86 at f 136.

In East's most recent amended complaint, he alleges that Warden Dooley and the prison

maintained a de faeto custom or practice or an actual policy of ignoring and condoning providing

inadequate health and medical assistance to address East's serious medical needs. Doc. 47 at T|94.
South Dakota Department of Corrections Policy 1.4.E.1 specifically provides that: "The

28

Department of Corrections(DOC) will provide all offenders with access to healthcare services"
and that "no offender will be denied medically necessary healthcare due to a lack of available
funds in their institutional account." Doc.86 atf 139. The policy further provides that:"Offenders
will have daily access to healthcare provided by qualified healthcare professionals," and that
"Treatment of an inmate's condition is not limited by the resources and services available at the
facility." Doc. 86 at f 140. Finally, the policy provides that: "The Department of Health(DOH)
will maintain agreements with approved local hospitals, providers and private emergency service

contractors to provide health services to inmates," and that inmates "will be transported safely,

securely and in a timely manner to all authorized medical ... appointments outside the facility."

Doc. 86 at ]| 141. East was seen on a continuing basis by MDSP Health Services and frequently
by the podiatrist in response to his complaints offoot pain. Doc. 86 at T[ 143.
In Count 5 of his most recent amended complaint. East contends that John Does 1 and 2

(Baker and Coins) violated his Eighth Amendment right "by utilizing unnecessary force." Doc.

47 at 197. According to East, Baker "placed a belly chain on [East] tightly" and "asked if it were
too tight." Doc. 47 at ^ 76; Doc. 90 at ^ 33. When East responded that he could barely breathe.
Baker commented that the chain should be tighter. Doc.47 at 176;Doc.90 atf 33. East thereafter

was quiet. Doc. 86 at ^ 147.'® Department of Corrections policy for inmate transports and escort
requires that an inmate transported outside the security perimeter "will wear handcuffs and a belly
chain unless otherwise exempted by the Senior Security Officer." Doc. 86 at ^ 149. The policy

also provides that any emergency or unscheduled transports of an inmate from a secure facility to
a medical facility for outpatient care require two armed staff members. Doc. 86 at ]| 149. The use

"Baker and Coins contest that the belly chain was too tight or that East claimed that he could

barely breathe. However, East is entitled to have the facts viewed in the light most favorable to
him, as the non-moving party in resolving motions for summary judgment.
29

of restraints and two guards for travel of an inmate outside ofthe security perimeter is intended to

ensure safety ofthe public and to prevent escapes and attempted escapes. Doc.86 at1150. During
the hospital visit where East contends the belly chain was so tight that he could barely breathe.
East made no complaint to anyone in the emergency room of the Avera Sacred Heart Hospital
regarding shortness of breath or discomfort associated with the belly chain, nor did East file any
grievance alleging the use ofexcessive force or threats by the guards. Doe. 86 at

155-56. After

his return to the prison on October 24, 2017 (the visit where he claims the belly chains were too
tight). East did not make a complaint to MDSP Health Services or file a kite regarding the tight

belly chain. Doc. 86 at ^ 157. East explains that he was too scared to make such a report. Doc.
86 at

157-58. There is nothing in the medical records that suggests that East suffered any injiuy

from use ofthe belly ehain. Doc. 86 at

157-58.

East also contends that Baker and Goins violated his Eighth Amendment rights by
"taunting plaintiff." Doc. 47 at Tf 97. East says that Baker brandished his firearm at East and

warned East not to try anything "because I'll go John Wayne on your ass." Doc. 47 at ^ 76; Doc.
90 at Tf 34. Baker, according to East, also showed him the clip of ammunition, pointed the gun

toward East, and said "I will shoot you. East." Doc.47 at 176; Doc. 90 at f 34.^° East never filed
a grievance concerning this claimed behavior. Doc. 86 at f 162. East explains that he was too
afraid of possible retaliation from gun toting guards to file a grievance, but he has now filed a
complaint in federal court against those guards, albeit naming them as John Does 1 and 2. Doc.
86 at 1162.
III.

Discussion

Baker and Goins deny in affidavits that anything akin to this occurred, but East is entitled to
have disputes offact resolved in his favor in ruling on motions for summary judgment.
30

A. Qualified Immunity and Deliberate Indifference Standard

Under § 1983, state officials may be sued in their individual capacities, their official
capacities, or both. Johnson v. Outboard Marine Corp.. 172 F.3d 531, 535 (8th Cir. 1999).
Individual and official capacity suits differ in both their pleading requirements and the defenses
available to the official. See Hafer v. Melo. 502 U.S. 21, 25 (1991). East in his briefing makes

clear that he is suing state officials only in their individual capacities. Doe. 87 at 2.
The doctrine of qualified immunity is a defense available to state officials sued in their
individual capacities under § 1983. The MDSP Defendants contend that East's individual
capacity claims against them are barred under this doctrine. "On summaryjudgment,a defendant
official is entitled to qualified immunity unless '(1)the facts, viewed in the light most favorable

to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and(2)the right
was clearly established at the time ofthe deprivation.'" Walton v. Dawson,752 F.3d 1109, 1116
(8th Cir. 2014)(quoting Howard v. Kan. Citv Police Dep't 570 F.3d 984, 988 (8th Cir. 2009)).

If a § 1983 plaintiff fails to establish either prong—and the court may consider one without the
other—qualified immunity shields the officials from suit.

Pearson v. Callahan,555 U.S. 223,

236 (2009). But a district court "may not deny qualified immunity without answering both
questions in the plaintiffs favor." Walton, 752 F.3d at 1116; see also Pearson. 555 U.S. at 236.
Independent contractors providing services at state prisons do not typically have qualified
immunity defenses. See Richardson v. McKnight.521 U.S. 399,401 (1997)(holding that private
company prison guards were not entitled to qualified immunity defense in a § 1983 case); see also
Hunter v. S.D. Den't of Soc. Servs.. 3:17-CV-03016-RAL, 2019 WL 1333638, at *11 (D.S.D.

Mar. 25, 2019). Defendants CCS,Dr. Heisler, PA Adams and Nurse Osbome were independent
contractors, not state employees, and thus do not have qualified immunity defenses here.

31

Unquestionably, however,in providing medical care to a state inmate like East,those independent
contractors were "willing participants in a joint action with public servants acting under color of
state law" and thus may be sued under § 1983. Johnson. 172 F.3d at 536; see Dennis v. Sparks.
449 U.S. 24,27(19801: see also Blessing v. Freestone. 520 U.S. 329,340(1997)("Section 1983

imposes liability on anyone who, under color of state law, deprives a person 'of any rights,
privileges, or immunities secured by the Constitution and laws.'"(citation omitted)).
East's principal claim against all defendants—other than Baker and Goins—involves what,
generally speaking, is a clearly established right under the Eighth Amendment. "The Eighth
Amendment prohibition on cruel and unusual punishment protects prisoners from deliberate
indifference to serious medical needs." Laganiere v. Ctv. of Olmsted. 772 F.3d 1114, 1116-17

(8th Cir. 2014). A plaintiff who claims that a defendant was deliberately indifferent to his medical
needs must show that he suffered "an objectively serious medical need, and that the 'defendant

actually knew of, but deliberately disregarded, such need.'" Id (quoting McRaven v. Sanders.
577 F.3d 974,980(8th Cir. 2009)1; see also Farmer v. Brennan.511 U.S.825,837(1994)(holding
"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"). "An objectively

serious medical need is one that either has been diagnosed by a physician as requiring treatment,
or is so obvious that even a 'layperson would easily recognize the necessity for a doctor's
attention.'" Jones v. Minn. Dep't of Corr.. 512 F.3d 478, 481 (8th Cir. 2008)(quoting Coleman
V. Rahiia. 114 F.3d 778, 784 (8th Cir. 1997)). '[Ajctual knowledge of a serious medical need

may be inferred from circumstantial evidence or from the very fact that the risk was obvious."
Id. at 481-82(citing Farmer. 511 U.S. at 842). "It is sufficient to show that the defendant-official
being sued had been exposed to information concerning the risk and thus must have known about

32

it." Letterman v. Does.789 F.3d 856,862(8th Cir. 2015)(cleaned up)("quoting Farmer.511 U.S.

at 842). If knowledge is shown, the plaintiff must then show the defendants '"knew that their

conduct was inappropriate in light of the risk to the prisoner." Id.(quoting Krout v. Goemmer.
583 F.3d 557, 567(8th Cir. 2009)).

"Deliberate indifference may include intentionally denying or delaying access to medical
care, or intentionally interfering with treatment or medication that has been prescribed."
Pietrafeso v. Lawrence Cty.. 452 F.3d 978, 983 (8th Cir. 2006)(quoting Vaughan v. Lacev. 49
F.3d 1344,1346(8th Cir. 1995)). However,deliberate indifference demands that a plaintiffshow
more than negligence and gross negligence, "and mere disagreement with treatment decisions
does not rise to the level of a constitutional violation." Langford v. Norris. 614 F.3d 445, 460

(8th Cir. 2010)(quoting Alberson v. Norris.458 F.3d 762,765(8th Cir. 2006)). Rather,a plaintiff
must show that the defendant's mental state was "akin to criminal recklessness." McCaster v.

Clausen. 684 F.3d 740, 746 (8th Cir. 2012)(quotation omitted). When evaluating whether a

defendant deliberately disregarded a risk, the court considers the "actions in light of the
information [the defendant] possessed at the time, the practical limitations of[the defendant's]

position and alternative courses of action that would have been apparent to an official in that

position." Letterman, 789 F.3d at 862 (quoting Gregoire v. Class, 236 F.3d 413, 419 (8th Cir.
2000)).

With these standards in mind, this Court addresses East's claims for deliberate

indifference to his serious medical needs with respect to his care first at the Minnehaha County
Jail and second at MDSP.

B. Minnehaha County Jail Care
1. Serviee of Process on Nurse Osborne

33

East named Nurse Osbome as a Defendant in his most recent complaint. Doc. 47. Nurse

Osbome filed a declaration in this case. Doc. 119, detailing her background, employment as a
registered nurse with CCS, and summarizing her personal knowledge of the treatment she
provided to East at Minnehaha County Jail. The declaration is silent on whether she ever was

served as a Defendant in this case. Doc. 119. CCS's Statement of Undisputed Material Facts at
112 states: "Linda Osbome has not been served with a summons and copy of any complaint in
this case." Doc. 118. East responded to 112 with "no dispute." Doc. 128. East's Memorandum
in Opposition to CCS's Motion for Summary Judgment makes no argument that Nurse Osbome
ought to remain a Defendant in the case. Doc. 127.
Rule 4(m)ofthe Federal Rules of Civil Procedure provides:
If a defendant is not served within 90 days after the complaint is filed, the court—
on motion or on its own after notice to the plaintiff—^must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time.

Fed. R. Civ. P. 4(m). Dismissal without prejudice of any claim against Nurse Osbome is
appropriate here.
2.

Statute of Limitations Issue

Both CCS and Dr. Heisler argue that they were sued outside of the applicable statute of

limitations, contending that East's claim against them accmed in August of 2013. East's original

pro se complaint, dated August 18, 2016, and filed August 29, 2016, named as Defendants
"Minnehaha County, South Dakota and other unknown persons, individually and in their capacity

as employees of Minnehaha County, South Dakota." Doc. 1. That original complaint alleged
deliberate indifference relating to East's foot condition at the Minnehaha County Jail that resulted
in the onset of osteomyelitis and removal of his fifth phalanx through surgery on September 24,
2013. Doc. 1. East alleged that"unknown defendants were acting under color of state law" at that
34

time. Doc. 1 at f 8. East's first effort at an amended complaint in October of 2016 continued to
name "other unknown persons." Doc. 10. After this Court granted East leave to file an amended
complaint, East in April of 2017, named "Ms.

-Heisler" among various Defendants.

Doc. 21. East's next effort to amend his complaint also named Dr. Heisler, Doc. 25-1, as did his

subsequent effort to amend his complaint. Doc. 34-1. The first time that CCS was named as a
Defendant came in the most recent amended complaint, after this Court appointed counsel to East.
Doc. 47.

Section 1983 does not contain a specific statute of limitations, so federal courts apply the

most analogous state statute of limitations. Bell v. Fowler. 99 F.3d 262, 265-66 (8th Cir. 1996).
The most analogous state statute of limitations under South Dakota law is SDCL § 15-2-15.2,
which provides:

Any action brought under the federal civil rights statutes may be commenced only
within three years after the alleged constitutional deprivation has occurred. This
section is prospective in application.

SDCL § 15-2-15.2. Although the limitations period is governed by state law, the date of
commencement of a § 1983 action is a matter of federal procedural law. Gross v. Weber, 112 F.

Supp. 2d 923,925(D.S.D. 2000). Under Rule 3 ofthe Federal Rules of Civil Procedure, a lawsuit
is commenced when the complaint is filed.

Both CCS and Dr. Heisler contend that any complaint naming them was filed well outside

the three-year period from when they could have committed any alleged constitutional deprivation
against East; after all. East was diagnosed with osteomyelitis as a result ofan x-ray on August 16,
2013, underwent the toe amputation on September 24, 2013, and was gone from Minnehaha

County Jail custody by April 3, 2014. East responds that his cause of action accrued no earlier

35

than September 4, 2013, when he learned that the osteomyelitis diagnosis meant that he would
need to have his toe amputated. Doe. 114 at 3.

Under federal law,a cause of action accrues"when the plaintiff has a complete and present
cause of action," which occurs when "the plaintiff can file suit and obtain relief." Bay Area
Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal.. 522 U.S. 192, 201 (1997)
(citation omitted). Put another way,"a plaintiffs cause of action accrues when he discovers, or

with due diligence should have discovered, the injury that is the basis of the litigation." Union
Pac. R.R. Co. v. Beckham. 138 F.3d 325, 330(8th Cir. 1998); see also Johnson v. Precvthe. 901
F.3d 973,980-81 (8th Cir. 2018), petition for cert, docketed. No. 18-852(U.S. Jan. 4,2019). East
argues that he remained unaware ofthe seriousness of his medical condition as late as August 31,
2013, which is when he made a health service request not to go to Avera McKennan Hospital for
further checkup on his foot. The date ofaccrual matters dearly with respect to East's claims against
CCS and Dr. Heisler, because East contends that his amended complaints naming those two

Defendants relate back to his original filing on August 29, 2016.

Rule 15(c)(1)(B) indeed permits a plaintiff to file an amended complaint that relates back
to his original complaint,ifthe claim arose out ofthe same transaction or occurrence. Fed. R. Civ.
P. 15(c)(1)(B). "Relation back" depends on the existence of a "common core of operative facts"
uniting the original complaint to the newly asserted claims. Mavle v. Felix. 545 U.S. 644, 664
(2005). The "core of operative facts" alleged in East's original complaint concerned alleged
deliberate indifference to his foot injury resulting in osteomyelitis and amputation of his toe. Doc.
1. The "other unknown persons" referenced in East's original complaint could cover Dr. Heisler
and at least employees of CCS,if not CCS itself.

36

Rule 15(c)(1)(C) permits the relation back ofan amendment that "changes the party or the
naming of the party against whom a claim is asserted" if the provisions of Rule 15(c)(1)(B) are
met and, within the time period set by Rule 4(m) for service of process, the party named in the

amended complaint received "such notice ofthe action that it will not be prejudiced in defending
on the merits ...and knew or should have known that the action would have been brought against
it, but for a mistake concerning the proper party's identity." Fed. R. Civ. P. 15(c)(1)(C); see also
Goodman v. Praxair, Inc., 494 F.3d 458, 469 (4th Cir. 2007)(concluding that Rule 15(c)(1)(C)
covers the addition of parties rather than just the substitution of parties); 6A Charles Alan Wright

et ah. Federal Practiee and Procedure § 1498.2(3d ed.)(explaining that ifthe requirements ofRule
15(c) are met,"there is no justification for a restrictive interpretation of the word 'changing' that

would require a plaintiff to choose among defendants"). There appears to be no particular

prejudice to Dr. Heisler or CCS in defending the case, and although entirely inartful, the original
complaint reflects an effort by East to sue and name those responsible for his medical care at the
Minnehaha County Jail. See Doc. 1.

There appears to be an issue offact over exactly when East learned ofthe alleged improper
treatment such that his claim accrued. East contends that September 4,2013,is the triggering date,

but his most recent complaint alleged that sometime in August of 2013, a doctor at the hospital
informed him that "he should have been seen at the hospital for treatment of his foot as early as
June 2013." Doc. 47 at ^ 28. CCS contends that this August 2013 hospital visit occurred either
on August 20 or August 22,2013. Doc. 120 at T| 18.
There is the added question about the applicability of the "prison mailbox rule," under

which prisoners filing pro se civil rights complaints under § 1983 have their eomplaints deemed
to be filed on the day they deposit the complaint in the prison internal mail system for forwarding

37

to the district court. Sulik v. Tanev Ctv.. 316 F.3d 813,815 (8th Cir. 2003), rev'd in part on other
grounds. 393 F.3d 765 (8th Cir. 2005); Mortensbak v. Butler. 102 F. Supp. 3d 1085, 1090 n.6
(D.S.D. 2015). East's original complaint, although filed August 29, 2016, was dated August 18,

2016. Doc. 1. The envelope in which the clerk of court received the complaint has a postage
stamp and was sent from MDSP in Springfield, South Dakota, but does not contain a postmark
with the date of mailing. Doc. 1-1. East's affidavit submitted in this matter confirms that he

signed the complaint on August 18, 2016, but does not state when he placed it in the prison mail.
Doc. 112 at I 3; Doc. 126 at ^ 3. Ultimately, given the factual issues surrounding when East's

claim accrued and when he deposited his complaint in the prison mail,^' this Court withholds ruling
at this time on CCS and Dr. Heisler's argument for summary judgment based on the running of
the statute of limitations.

3. Respondeat Superior Issue

East has named two non-person entities as Defendants in his most recent complaint, in

suing Minnehaha County and CCS. Minnehaha County has answered. Doc. 62, but has not filed
a motion for summary judgment or to dismiss.

Section 1983 extends federal jurisdiction for civil actions for deprivation of rights against

a"person." 42 U.S.C. § 1983. Neither Minnehaha County nor CCS are a "person." A corporation
acting under color of state law can be held liable under § 1983 for unconstitutional policies, but
not on a theory of respondeat superior. Smith v. Inslev's Inc.. 499 F.3d 875, 880(8th Cir. 2007).

That is, a private corporation like CCS may be liable under § 1983 only if the injury alleged is a
result of the corporation's policy or practice or if the corporation knew of its employees'

There also is a thorny legal issue here of how the period set for service under Rule 4(m) and
referenced in Rule 15(c)(1)(C) may apply to a pro se inmate's § 1983 complaint where a district
court must screen and authorize service of process. No party analyzed that issue in briefing.
38

misconduct and failed to take steps to end the misconduct. Id. East names Minnehaha County and
CCS for purposes of Count 2 of his most recent complaint where he alleges a violation of his civil
rights through deliberate indifference to his serious medical needs as a result of "customs,

practices, and policies" of Minnehaha County and CCS. Doc. 47 at^84-86. East contends that
he needs an opportunity to conduct discovery on such a claim. However, if East was not subject

to deliberate indifference to his serious medical needs while at Miimehaha County Jail, Count 2 of
his complaint for such deliberate indifference being attributable to customs, practices, and policies
would fail. See Crumplev-Patterson v. Trinitv Lutheran Hosp.. 388 F.3d 588, 590-91 (8th Cir.

2004)(explaining that plaintiffs seeking to hold a corporation liable under § 1983 must show that

they were "injured by acts pursuant to [the] custom, i.e., that the custom was the moving force
behind the constitutional violation" (citation omitted)); Webb v. Citv of Maplewood. 889 F.3d

483, 487 (8th Cir. 2018)(explaining that there must be an unconstitutional act by a mimicipal

employee before a municipal liability can be held liable, although there "need not be a finding that
a municipal employee is liable in his or her individual capacity"(citation omitted)).
Thus, this Court turns to whether, viewing the facts in the light most favorable to East, he
has a viable claim for deliberate indifference to his serious medical needs while at the Minnehaha

County Jail.

4. Merits ofEighth Amendment Claim Involving Care at Minnehaha County Jail
East's foot issues while at the Minnehaha County Jail started in early April of 2013, with

his reporting a problem with his right on April 6,2013. A nurse visited East the same day he made
the report and East saw Dr. Heisler the next Monday,two days after his report. Dr. Heisler directed
CCS staff at Minnehaha County Jail to dress and clean the woimd daily, and East began receiving
an oral antibiotic. East received near daily woxmd care thereafter.

39

In May of2013, East's foot issues appeared to be worsening, and a different antibiotic was

prescribed. Dr. Heisler or a medical resident working under her saw East on a number ofoccasions
in 2013. Dr. Heisler by late May suspected and in June of2013 thought that East had cellulitis, a
bacterial infection of the skin and subcutaneous tissues in his toe. CCS staff was ordered to and

continued near daily wound care, including unwrapping, observing, cleaning, treating with a triple
antibiotic ointment, or other substance and recovering the infected area.

When Dr. Heisler saw East on June 12,2013,she thought there was a deeper infection than
what she had previously observed and ordered a change in daily wound care to include irrigation

with peroxide and different shoes to assist with wound healing. Although the daily records suggest
that East's foot infection was worsening. Dr. Heisler on July 9, 2013,thought the foot infection to

be improving and ordered a change in the type of gauze with directions that the dressing be
removed at night to let it air out. On July 23, 2013, Dr. Heisler in rechecking the wound thought
that there was an ulcer preventing healing and ordered more treatment and daily cleaning.
East had an acute onset of edema and decreased sensation in his foot on August 7, 2013.

The antibiotic was changed to Bactrim, and East saw a medical resident working under Dr. Heisler

on August 12, 2013. It was not until August 15, 2013, that Dr. Heisler upon seeing East, ordered
an x-ray ofEast's foot, which the next day was read as showing possible osteomyelitis, an infection
ofthe bone far more serious than mere cellulitis. East's claim against Dr. Heisler primarily relates

to the delay in ordering the x-ray or referring him to an outside physician for evaluation ofpossible
osteomyelitis.

Perhaps Dr. Heisler made an error in judgment or even malpractice in not discerning
possible osteomyelitis earlier during East's care. In hindsight. Dr. Heisler should have ordered an
x-ray earlier, referred East to a specialist earlier, and been suspicious of osteomyelitis earlier.

40

However,the deliberate indifference standard requires more than a showing of negligence or even
gross negligence. Langford. 614 F.3d at 460; Alberson. 458 F.3d at 765. Rather, Dr. Heisler's
mental state must be"akin to criminal recklessness." McCaster.684 F.3d at 746(citation omitted).

This Court must consider Dr. Heisler's actions in light ofthe information that she possessed at the
time, the practical limitations of her position, and alternative courses that would have been
apparent to her. Letterman. 789 F.3d at 862; Gregoire. 236 F.3d at 419. Even viewing the facts
in the light most favorable to East, Dr. Heisler's conduct was not "akin to criminal recklessness,"
but at worst was negligence or gross negligence. See Langford,614 F.3d at 460.

Similarly, East's claims regarding deficient care at Minnehaha County Jail after the toe

amputation fall short of deliberate indifference to serious medical needs, even when viewed in the
light most favorable to East. After the surgery. East received ongoing medical attention at
Minnehaha County Jail. He received intravenous antibiotics through a PICC line and was referred
to Avera McKennan Hospital when there were concerns about worsening of his condition. East

did have problems with his PICC line, with ultimate removal of it and replacement at a different
site, but underwent the full course of antibiotics as ordered by outside physicians, with the PICC

line ultimately being removed on November 8, 2013. This Court has examined and considered
the course of treatment of East at Minnehaha County Jail at length and concludes that, even

viewing the facts in the light most favorable to East, his care at the Minnehaha County Jail for any
serious medical issue did not meet the "deliberately indifferent" standard. Thus, Dr. Heisler and
CCS are entitled to summary judgment.
C. MDSPCare

1. Merits of Eighth Amendment Claim Against MDSP

41

East began serving his sentence at MDSP on or about April 3, 2014. His first report of
right foot pain appears to have been on June 30, 2015. When MDSP Health Services examined
East's foot, his foot had swelling in the entire lower top and East reported pain traveling up his
leg. MDSP Health Services made arrangements to transfer East to the Avera Sacred Heart

Emergency Department where he was diagnosed with cellulitis in his right foot. He then received
an antibiotic for the infection and an analgesic for his discomfort, and the pain was substantially
reduced and the swelling significantly improved by mid-July of2015. East completed the course
of antibiotics as of August 12, 2015. East has no claim for deliberate indifference to serious
medical condition arising out of events in the summer of2015 at MDSP.

On September 16, 2015, a physician assistant at MDSP examined East's right foot and
found a bunion on his big toe with tenderness. The PA ordered x-rays, which occurred on

September 19, 2015, and revealed several healing or healed fractures of East's foot. The PA then

put East in a walker, with crutches, and referred him to podiatry. The podiatrist in turn
recommended that East be placed in a cast and use a wheelchair.
On October 23, 2015, East was placed in a below-the-knee cast for his right lower

extremity. The physician's record recommended a wheelchair, but included reference that East
"needs wheelchair or crutches—^whatever is allowed." East clashed with MDSP Health Services

over whether East would use crutches at all; East wanted to be only in a wheelchair, while MDSP

wanted bim to use a wheelchair for long-distance transfers, but crutches for short-distance
transfers. Under the deliberate indifference to serious medical needs standard,"mere disagreement
with treatment decisions does not rise to the level of a constitutional violation." Langford. 614

F.3d at 640 (quoting Alberson, 458 F.3d at 765). As a matter of law, this disagreement over the
extent to which East could rely on a wheelchair is not deliberate indifference to East's serious

42

medical needs. The mere fact that East sprained his left ankle in late October of2015 while getting
out of a chair to use his crutches does not thereby establish that MDSP Health Services was
deliberately indifferent to his serious medieal needs.

On November 25,2015,East saw the podiatrist who noted from x-rays that East's foot had
been healing and allowed East to ambulate in a walking boot as long as he did not have pain and
swelling. East and the physician discussed possible surgery to address his bunion. MDSP Health
Services authorized surgical repair ofthe bunion and cleared him for surgery.
In April of 2016, East underwent surgery outside of MDSP. East received post-surgical
care at both MDSP and outside the prison. East's recovery appeared to be going well until May
19, 2016, when he felt a pop in his right great toe when wiggling it. MDSP Health Services made

arrangements to send East to the emergency room of Avera Sacred Heart Hospital that same day,
where he received treatment. PA Adams saw East on June 5, 2017, examined his toe, and ordered

an x-ray of the right foot. Learning that the x-ray was negative and heeding advice to exercise
more. East tried to jog on the foot and injured the foot while jogging in June of 2017. MDSP
Health Services saw East after he hurt the footjogging, issued East crutches, and when he did not

improve scheduled East to see an outside podiatrist. X-rays on June 28,2017,revealed a fractured
screw holding the plate to the bone and another surgery was scheduled for July of 2017, which
MDSP Health Services approved.

After the surgery. East again clashed with MDSP Health Services over not getting a

personal wheelchair and instead having to use the unit's wheelchair. East points to being twice
denied the use ofthe wheelchair when it was needed by other inmates. East also complains about

not being in an air-conditioned environment postoperatively on the night of July 20 and into July
21, 2017. Although being in sweltering conditions can increase the chance of infection. East did

43

not contract a post-operative infection in July of 2017 in the less than 24 hoins outside of an airconditioned environment. None of this, even in the facts most favorable to East, amounts to
deliberate indifference to serious medical needs.

East also has claims relating to the size ofthe walking boot that he received in October of
2017. MDSP Health Services did not locate a smaller walking boot for East within the Department
of Corrections system and chose not to order a smaller boot because it might arrive after East no

longer needed it. The existing walking boot appeared to be snug around the heel, foot, and leg,
but simply long in nature. East did experience swelling around his ankle, which motivated PA
Adams to order new x-rays of the right foot on October 18, 2017. The new x-rays revealed a
complex fracture of East's right heel.
East again was given appropriate medical care, being transferred to the emergency room
of Avera Sacred Heart Hospital and having his foot casted anew. The heel bone fracture healed
well, and East transferred to a medium-sized walking cast boot and then to a regular shoe.
Without doubt.East has been through an odyssey of medical issues regarding his right foot.
A careful review ofthe treatment,taken in the light most favorable to East, reveals that he received

timely treatment and multiple referrals to outside medical providers and emergency departments
when appropriate. No one working for MDSP Health Services was deliberately indifferent to
East's serious medical needs. East certainly wanted greater accommodation, including his own
wheelchair and a different walking boot, but such matters or disagreement over medical care do
not establish deliberate indifference to serious medical needs. Langford.614 F.3d at 460. Because

East was not subjected to deliberate indifference concerning his serious medical needs at MDSP

as a matter of law. Warden Dooley, Unit Coordinator Foley and PA Hanvey are entitled to
siraimary judgment. Those defendants are entitled to summary judgment on qualified immunity

44

grounds because the facts, viewed in the light most favorable to East, fail to demonstrate the
deprivation of a constitutional or statutory right under the first prong of the qualified immunity
analysis.

Walton, 752 F.3d at 1116.
2. Claim as to PA Adams

PA Adams has filed a motion to dismiss, so the Court must take the facts as to PA Adams

from the well-pleaded allegations of the most recent complaint. There are two principal factual
allegations in the most recent complaint pertaining to PA Adams. East's latest complaint alleges
that PA Adams, a physician assistant employed at MDSP,saw East in May of 2017, and that

Plaintiff began to experience significant pain in his right foot. Plaintiff thought he
detected something protruding from the side of his foot. Plaintiff was examined by

physician assistant Bradley Adams, but no further treatment was ordered.^^
Doc.47 at 59. East only again mentions PA Adams in factual allegations by averring that "[o]n
October 18,2017,Plaintiff was informed by Adams that his right ankle was sprained." Doc.47 at

173.23
East's allegations against PA Adams are insufficient to establish deliberate indifference to
serious medical needs sufficient to survive the motion to dismiss. To plead a viable claim for
deliberate indifference, a plaintiff must demonstrate "more than negligence, more even than gross

negligence." Jollv v. Knudsen.205 F.3d 1094,1096(8th Cir. 2000)(quoting Estate of Rosenberg
V. Crandell. 56 F.3d 35, 37 (8th Cir. 1995)). A viable claim of deliberate indifference to serious

This Court must take the allegations in the complaint as true when ruling on PA Adams's motion
to dismiss. However,this allegation appears to be factually mistaken. PA Adams indeed saw East
on June 5,2017, when East reported some pain over a lump near the incision site. Doc. 86 at ^ 74.
PA Adams examined the toe, found a slight prominent lump that was slightly tender to palpation,
and noted that the toe was starting to deviate over the second toe. PA Adams then ordered an xray ofthe right foot, with plans to have East's foot surgeon review it. Doc. 86 at ^ 75.
22 This allegation is accurate. On October 18, 2017, PA Adams did examine East for right ankle

pain, noticed generalized swelling in the ankle, and ordered x-ray of East's right foot and ankle,
which revealed the diagnosis ofthe heel fracture. Doc. 86 at
45

120, 123-25.

medical needs has both an objective component of the serious medical need and a subjective

component that the prison official knew of and deliberately disregarded that need. Id. East's
contentions against PA Adams do not allege that he knew of and deliberately disregarded East's
serious medical needs.

D. Claims Against Prison Guards

The MDSP Defendants seek summary judgment on Count 5 of East's complaint because
East failed to exhaust his claims that Baker and Goins threatened him with a gun and applied his

belly chain too tightly. The Prison Litigation Reform Act(PLRA)requires prisoners to exhaust
all "available" administrative remedies before challenging prison conditions under § 1983. 42

U.S.C. § 1997e(a). A prisoner properly exhausts the available administrative remedies when he
"complete[s] the administrative review process in accordance with the applicable procedural
rules." Jones v. Bock. 549 U.S. 199, 218(2007)(citation omitted).

East does not dispute that he failed to exhaust his administrative remedies as to his claims
that Baker and Goins threatened him and secured his belly chain too tightly. Doc. 86 at *[^1155,

157, 162-63; Doc. 75 at

6-8. Rather, he argues that he never filed any grievance about these

incidents because he was afraid that Baker and Goins would retaliate against him. Doc. 87 at 11;

Doc.90 at If 36-39. The PLRA requires exhaustion of administrative remedies, but only ifthose
remedies are "available." Ross v. Blake. 136 S. Ct. 1850, 1858 (2016). As the Supreme Court

explained in Ross, an administrative remedy is unavailable "when prison administrators thwart
inmates from taking advantage of a grievance process through machination, misrepresentation, or
intimidation." Id at 1860. Several federal appellate courts have held that"administrative remedies
are not 'available' under the PLRA where a prison official inhibits an inmate from resorting to

them through serious threats of retaliation and bodily harm." Rinaldi v. United States. 904 F.3d

46

257, 267 (3d Cir. 2018)(collecting cases). Most of these courts require inmates to meet a two-

part test to show that intimidation made the prison's administrative remedies unavailable.^'* Id at
268. The inmate must show: "(1) that the threat was sufficiently serious that it would deter a

reasonable inmate of ordinary firmness and fortitude from lodging a grievance and (2) that the
threat actually did deter this particular inmate." Id,at 269.
East cannot meet the first prong ofthis test because the actions of Baker and Goins, while

threatening and inappropriate,^Burton v. Livingston. 791 F.2d 97, 100 (8th Cir. 1986), would
not have led a reasonable inmate to believe that the officers would retaliate against him for filing

a grievance. As East tells it. Baker, when preparing East for a transport to a medical appointment,
said "[d]on't try to do anything East, cause I'll go John Wayne on your ass." Doc.90 atf 34. East
claims that Baker then showed him the clip of ammunition, pointed the gun toward him, and said
"I will shoot you. East." Doc. 90 at f 34. Baker did not mention the grievance process or say

anything else suggesting that he would retaliate against East for using the available administrative
remedies. Instead, Baker threatened East with violence if East tried "anything" when being

transported to his medical appointment. The belly-chain incident also lacks any connection to East
filing a grievance. East asserts that the belly chain Baker placed on him was tight and that when
East said he could barely breathe Baker replied that the chain "should be tighter." Doc.90 at ^ 33.
East has not offered any evidence suggesting that a reasonable inmate would interpret the bellychain incident as a threat not to use the grievance system.

To be sure, an officer's threat need not "explicitly reference the grievance system" to

satisfy the first prong of the test. McBride v. Lopez. 807 F.3d 982, 988 (9th Cir. 2015).

Once the defendant has shown failure to exhaust, the inmate must establish that administrative
remedies were not available to him. Rinaldi. 904 F.3d at 268.
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Nevertheless,"there must be some basis in the record from which the district court could determine

that a reasonable prisoner of ordinary firmness would have understood the prison official's actions
to threaten retaliation if the prisoner chose to utilize the prison's grievance system." Id. The
closest East comes to offering such a basis is his statement that he informed another inmate about
Baker's threat and the belly chain and that the inmate then told East"about how other inmates had

been subject to retaliation after making similar reports." Doc. 90 at 138. This hearsay statement
does not give rise to a genuine issue of material fact because it does not address the sort of

retaliation other inmates suffered and whether this retaliation would have been sufficiently serious
to deter an inmate of ordinary firmness from filing a grievance. East has failed to establish a
sufficient connection between Baker's conduct and the grievance process, and there is thus no
justification for excusing his failure to exhaust administrative remedies before suing. See
McBride, 807 F.3d at 988 ("There is no reason to allow inmates to avoid filing requirements on

the basis of hostile interactions with guards when the interaction has no apparent relation to the
use of the grievance system."). Defendants are therefore entitled to judgment as a matter oflaw
on Count 5 of East's complaint.
III.

Conclusion and Order

For the reasons contained in this Opinion and Order, it is hereby
ORDERED that the Motion to Dismiss filed by PA Adams, Doc. 63, is granted, and for
reasons relating to the lack of service on Nurse Osbome,the claims against PA Adams and Nurse
Osbome are dismissed without prejudice. It is further
ORDERED that the Motion for Summary Judgment filed by the MDSP Defendants, Doc.

68, is granted, and because the motion is granted, the Motion for Protective Order filed by the
MDSP Defendants, Doc. 77, is denied as moot. It is further

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ORDERED that the Motion for Summary Judgment filed by Dr. Heisler, Doc. 106, is
granted. It is further

ORDERED that the Motion for Summary Judgment filed by COS,Doe. 117, is granted. It
is finally

ORDERED that, while no motion for summary judgment has been filed by Minnehaha

County,it appears that such a motion should be filed and granted. Finaljudgment will be withheld
until such time as the claim against Minnehaha County is resolved.

DATED this

day of March,2019.
BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE

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