Vice v. Kaemingk et al

Filing 81

ORDER granting in part and denying in part 57 Motion for Summary Judgment; denying 68 Motion for Injunctive Relief ; denying 69 Motion for Injunctive Relief re: ADA claim ; denying 78 Motion to Appoint Counsel ; denying 80 Motion for Preliminary Injunction. Signed by U.S. District Judge Karen E. Schreier on 7/31/18. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DEREK VICE,

4:16-CV-04127-KES
Plaintiff,

vs.
DR. MARY CARPENTER, LT. FITZU,
C/O BOYSEN, C/O ROBERT KIRVIN,
PA TAMMY TOP, DR. JOE HANVEY,
SGT. HERMANN, CORRECTIONAL
OFFICER STOYNOV,

ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT IN PART AND
DENYING IN PART AND DENYING
MOTIONS FOR PRELIMINARY
INJUNCTION AND TO APPOINT
COUNSEL

Defendants.
Plaintiff, Derek Vice, filed an amended complaint alleging that defendants
violated his rights under the Eighth Amendment, the Americans with
Disabilities Act (ADA), and the Rehabilitation Act (RA). Docket 1; Docket 10;
Docket 13. Defendants move for summary judgment and claim qualified
immunity. Docket 57.
FACTUAL BACKGROUND
The facts, viewed in the light most favorable to the non-moving party, are
as follows:
Derek Vice is an inmate currently incarcerated at the South Dakota State
Penitentiary (SDSP) in Sioux Falls, South Dakota. Docket 61 ¶ 1. Vice suffers
from some back pain and has had several tests and evaluations of his back at
CORE Orthopedics. In the past, Vice had an order that indefinitely authorized
him the use of a wheelchair. Docket 58-3. That order was discontinued when

Vice was transferred to the Mike Durfee State Prison (MDSP) in Springfield,
South Dakota. Docket 61 ¶ 14. On April 15, 2015, Vice received a spinal x-ray
that revealed he had “mild to moderate spondylosis.” Docket 58-3. On May 21,
2015, after returning to SDSP, Vice visited Health Services complaining of back
pain. Id. At the visit, Vice requested that his order for use of a wheelchair be
reinstated. Id. RN Lisa Harlan noted at that time that Vice did not have a
diagnosis to support the use of a wheelchair. Id.
On September 26, 2015, Department of Corrections (DOC) staff informed
RN Christopher Bruns that Vice was complaining of chest pain and shortness
of breath. Docket 58-4. RN Bruns told DOC staff to bring Vice upstairs to
Health Services. Id. DOC staff then informed RN Bruns that Vice refused to go
upstairs, so RN Bruns visited Vice in his cell. Id. RN Bruns asked Vice why he
refused to go upstairs and Vice responded that “he has a wheel chair order that
never expires from 2014.” Id. Vice further stated that he needs the wheelchair
and that he would pass out if he tried to walk all the way to Health Services. Id.
RN Bruns then told Vice that, during the previous two evenings, he had
observed Vice lie next to his cell door and then get up from that position
without difficulty or extra effort. Id. RN Bruns reiterated that Vice needed to
come to Health Services to be properly assessed by medical staff and that he
would investigate Vice’s claim about the wheelchair order. Id. Vice refused to
come to Health Services without a wheelchair. Id.
On November 24, 2015, Health Services received a letter from Advocacy
Services recommending that Vice be permitted to use a CPAP machine and that
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he be permitted to use a walker with wheels. Docket 58-5. The letter also
stated that Vice has “asked the nurse to re-order his Neurotin and the use of a
cane.” Id. And the letter ended stating that Vice’s requests were reasonable and
asked for a response to his requests. Id. On December 30, 2015, Vice visited
Health Services “regarding a reported mass on his left hand which [Vice] states
has been present for approximately 1.5 years.” Docket 58-7. Dr. Eugene Regier
observed Vice and stated that Vice was “ambulatory” and made a treatment
plan for Vice’s mass. Id. Dr. Regier also recommended that Vice be provided
with a replacement CPAP machine. Id. Vice did not ask for a wheelchair. Id.
On February 2, 2016, RN Jessica Schreurs responded to the November 24
letter from Advocacy Services stating that Vice had received a CPAP machine
and an order for Neurontin. Docket 58-6. RN Schreurs also stated that Vice
has a current order for a cane and had not made a request for a walker at his
December 30 visit to Health Services. Id. She encouraged Vice to attend sick
call if he felt he needed a walker. Id.
On February 1, 2016, RN Lisa Harlan observed Vice “lying on his back
with both knees bent. Report from officer states [Vice] allegedly fell somewhere
around 1450 while in rec cage but was unwitnessed.” Docket 58-8. Vice
refused to “cuff up” without a wheelchair, so RN Harlan could not enter the rec
cage to further examine Vice. Id. Vice claimed he needed a wheelchair to get
back to his cell and shower because he was in excruciating pain. Id. RN Harlan
stated that Vice was able to “move his legs without difficulty but states the pain
in his lower back is unbareable [sic] . . . .” Id. Vice was able “to drag his body
3

across the floor to take his pills” and appeared to not be in distress. Id. RN
Harlan also noted that Vice had a current cane order but that his cane was
taken away when he was placed in the SHU. Id.
On February 4, 2016, Vice reported to Health Services and told RN
Ashley Campbell that “he can not be released from the SHU unless he has a
wheelchair for back pain. [Vice] state[d] multiple back injuries over the years
that have caused this back pain.” Docket 58-10. Vice told RN Campbell that he
had a scheduled appointment for the following day with the provider and would
wait until his appointment to express his desire for a wheelchair. Id. On
February 5, 2016, Vice communicated to Dr. Regier that a few days prior to the
appointment “he fell over backwards when he lost his balance and injured his
lower back.” Docket 58-11. Vice stated that since the fall he could not walk
because when he tried to walk he felt weak. Id. He also stated that he could not
use stairs. Id. Dr. Regier noted that Vice presented in a wheelchair, he reacted
to moving passively and actively, and “show[ed] no evidence of any atrophy of
musculature of the lower extremities and sensation appear[ed] to be grossly
intact as well.” Id. As a result of his visit, Dr. Regier ordered that Vice utilize a
wheelchair for two weeks and not use stairs for two weeks. Id.
On February 18, 2016, Vice came to Health Services in a wheelchair and
requested to have his order for a wheelchair and no stairs extended. Docket 5812. Both orders were set to expire on February 18, 2016. Id. PA Brad Adams
gave RN Lonna Konglin permission to extend the orders by one day so that Dr.
Regier could evaluate Vice’s continued need for a wheelchair. Id. On March 3,
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2016, Vice received an MRI 1 of his lumbar spine at Avera McKennan Hospital.
Docket 58-14. The results of the MRI found that “[t]here is transitional
anatomic variant anatomy” and “partial lumbarization of the S1 vertebral body
with the right S1-S2 pseudarthrosis.” Id. There was also a “bony hypertrophy of
the pseudarthrosis and right lateral marginal osteophyte S1-S2 level producing
mild stenosis of the right foramen.” Id.
On March 9, 2016, Health Services received the results of the MRI.
Docket 58-16. Dr. Regier then met with Vice about the MRI results and ordered
that Vice have a walker for three months. Docket 58-17. On March 15, 2018,
Vice visited Health Services and asked about his wheelchair. Docket 58-18. RN
Bruns informed Vice that his wheelchair order had expired. Id. Vice responded
stating, “how are you going to take away a wheelchair from someone who can’t
walk?” Id. Vice then stated, “we have a Dr. that really wants me to walk, and so
do I, but everything needs to happen in its own time.” Id. RN Bruns explained
that the doctor ordered Vice a walker and that he would be brought back to his
cell in a wheelchair but that a walker would be provided once he was back in
his cell. Id. Vice then left the waiting room to be escorted to his cell. Id.
On March 31, 2016, Core Orthopedics evaluated Vice because of his
continued complaints of low back pain. Docket 58-9; Docket 58-19. Dr.

On September 28, 2016, Dr. Jeffery Baka examined Vice’s MRI at Avera
McKennan Hospital. Docket 58-48. Dr. Baka found that Vice had “[m]oderate
degenerative disc disease with mild spinal stenosis at C6-7. Left paracentral
disc protusion/osteophyte complex at C6-7 at C6-7 focally indents the left
ventral spinal cord. There is left C6-7 neural foraminal stenosis.” Id.
1

5

Gregory Alvine at CORE Orthopedics noted that the MRI revealed “degenerative
disc and collapse at L4-L5 and L5-S1 and left foraminal stenosis at L5-S1 with
some very mild stenosis at L4-L5.” Docket 58-9. Dr. Alvine discussed with Vice
“that degenerative discs can cause some back pain but oftentimes there is not
a good surgical option for it so [Vice] need[s] to work on his paraspinal muscle
strengthening exercises for long-term management.” Id. Dr. Alvine advised Vice
that “[w]e are going to try a left L5 transforaminal epidural which might help
with the symptoms in his leg.” Id. Dr. Alvine recommended physical therapy for
his low back pain and Vice agreed with Dr. Alvine’s plan. Id. Thus, Dr. Alvine
placed Vice on a “home program” and instructed him to complete
“strengthening exercises 2-3x/ week x 1 month.” Id.
On April 6, 2016, Vice visited Dr. Regier in Health Services in a
wheelchair and complained of low back pain and neck pain. Docket 58-20. Vice
told Dr. Regier that he did not feel as though he had received sufficient
treatment for his back and he wanted to have surgery. Id. Dr. Regier told Vice
that surgery was not recommended at this time and “may or may not be
beneficial.” Id. Dr. Regier noted that Vice had been “using a wheelchair for
virtually all his means of getting around the prison.” Id. And Dr. Regier noted
that Health Services continued to encourage Vice to be ambulatory and
strengthen his muscles but he did not make “any great efforts to get out of his
wheelchair.” Id. Dr. Regier reordered Vice’s wheelchair for two additional
months. Id.

6

On April 7, 2016, Health Services “went cell front to notify [Vice] of
medication” and observed Vice lying down with his feet up and observed him
walk to his cell front and back to his bed without any assistive device. Docket
58-21. On April 22, 2016, Vice underwent a transforaminal nerve root block at
Avera McKennan Hospital. Docket 58-22. On May 3, 2016, Vice went to Avera
Therapy Center for physical therapy. Docket 58-23. He reported that he had
back pain for 30 years, and about three months prior, he slipped in the shower
and that caused an increase in symptoms. Id. He also reported that the
transforaminal injection did not reduce his pain and he wanted stronger
medication. Id. On June 15, 2016, Vice visited Health Services and RN
Schreurs noted that Health Services had “[r]eceived an administrative remedy
request from patient requesting a handicap classification due to pain and being
in a wheelchair.” Docket 58-27. RN Schreurs also noted that Vice had an
approved neurosurgical consult that still needed to be scheduled. Id. On July
7, 2016, Vice visited Health Services and RN Bowers observed Vice “transfer
from wheelchair and ambulate with a cane to scale and exam table . . . without
difficulty.” Docket 58-28. RN Bowers further noted that Vice’s “gait was steady
and [he] did not show any signs of pain with ambulation.” Id.
On July 14, 2018, Vice was seen by Dr. Wissam Asfahani for a
neurological consult. Docket 58-30. At the consult, Vice asked for a medical
order for a wheelchair several times because his wheelchair was taken from
him the day before. Id. Dr. Asfahani “told Vice that it would actually be worse
for him to be in a wheelchair and there was no medical reason for him to have
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one.” Id. Dr. Asfahani also told Vice that there was no reason for him to have a
cane. Id. Vice also asked Dr. Asfahani for pain medication and Dr. Asfahani
refused. Id. Later the same day, Vice visited Health Services after his
appointment with Dr. Asfahani. Docket 58-31. LPN Ashley Campbell noted that
Vice “ambulated with cane without difficulty.” Id. And RN Carol Simon noted
that Vice argued about his need for a wheelchair but that the provider stated
that he did not need a wheelchair. Docket 58-32. As a result of the visit, Dr.
Asfahani recommended Vice have a left L5-S1 microdiscectomy surgery. Docket
58-2.
On July 16, 2016, Vice presented to medication pass and asked if he was
starting new medication because his doctor [Dr. Asfahani] recommended
Tramadol. Docket 58-32. RN Shelbi Backhaus noted that Vice “was walking
with his cane and was ambulating just fine.” Id. On July 19, 2016, Vice came
to the medication window and told LPN Jennifer Jensen that he would go on a
med strike if he did not get the Tramadol that the neurosurgeon recommended.
Docket 58-33. On August 19, 2016, Dr. Carpenter denied Vice’s Utilization
Management (UM) 2 request for a microdiscectomy, as recommended by Dr.
Asfahani, because there was inconsistent documentation regarding Vice’s
symptoms and because Dr. Carpenter believed that Vice was a poor candidate
for surgery due to his history of not following treatment plans. Docket 58-58;
Docket 59 ¶ 65.

2

UM requests refer to request for medical care from outside providers.
8

On September 12, 2016, Vice reported to Health Services after his
request for surgery was denied. Docket 58-35. CNP Tammy Top informed Vice
that his surgery was denied “based on inconsistent report of symptoms and
patient’s activities at rec[.]” Id. When CNP Top referred to reports that Vice had
attended rec without his cane he responded, “I don’t need it. It doesn’t help[.]
[I]t’s only for balance.” Id. CNP Top also noted that Vice climbed onto the exam
table without difficulty. Id.
On October 17, 2016, RN Harlan and RN Jeremy Tamisiea went to the
federal hall to assess Vice because Vice was complaining of back pain and
claimed he was paralyzed. Docket 58-37. Vice told RN Harlan that he fell on
October 15, 2016, and had been in pain since that time. Id. The nurses did not
see any bruising on his arms or back and did not see any scratches. Id. RN
Tamisiea then conducted a variety of tests on Vice and concluded that he was
“unable to fully assess as patient is not cooperative will not keep eyes closed
[when instructed] and there are inconsistencies in patient stating he has
decreased sensation but also responding to deep tendon reflexes and negative
Babinski sign.” Id. RN Tamisiea also noted that the “patient briskly twisted his
back in an aggressive manner during assessment of his spine.” Id.
On October 19, 2016, RN Backhaus received a call from David Fitzhugh 3
asking whether Vice was paralyzed. Docket 58-41. RN Backhaus stated that he
was not paralyzed and did not have an order for a wheelchair. Id. Fitzhugh

David’s Fitzhugh’s name is spelled incorrectly in the heading. See Docket 57
at 1. Thus, the court utilizes the correct spelling throughout the opinion.
3

9

then authored an incident report describing Vice’s facility rules violation.
Docket 58-42. The report states, “Inmate Vice pretended he was paralyzed from
the waist down during a fire drill today. . . . [H]e claimed chest pains and
demanded health services come to his cell when we were going to transport him
by wheel chair.” Id. Also on October 19, 2016, Ryan Vanderaa authored an
incident report stating that “Vice came from the hill for disciplinary
reasons. . . . I wheeled him over to the holding enclosure in section six, he
stood up on his own, turned around, and sat back down.” Docket 58-43. Later
on the same day, Justin Korth authored an incident report. Docket 58-44.
Korth stated that he went to the section six holding cell to move Vice to cell 96.
Id. Vice refused hand restraints, demanded a new mattress, and expressed his
thoughts about committing self harm. Id. Vice continued to yell and refuse
directives to be placed in hand restraints. Id. Finally, Jess Boysen pulled out
his OC spray and gave a final directive to Vice that Vice refused. SCO Boysen
then sprayed Vice and Vice “stood up, turned around, and took off his gown to
block the cuffport of the holding cell. Id.; see also Docket 58-45; Docket 58-46;
Docket 58-47.
On October 25, 2016, PA Michael Hanvey 4 evaluated Vice because he
had gone on a hunger strike. Docket 58-49. PA Hanvey confirmed that Vice had
missed at least nine meals. Id. Vice told PA Hanvey that he fell on October 15,
2016, and had been unable to walk since that time. Id. PA Hanvey noted that

Vice refers to Michael Hanvey as a Doctor in his pleadings. Michael Hanvey is
Physician’s Assistant. Docket 57 at 1.
4

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Vice’s exam was completely inconsistent, so it was difficult to identify Vice’s
source of discomfort. Id. PA Hanvey stated that he saw “no indication why he
needs a wheelchair” and denied the request for a wheelchair. Id. PA Hanvey
also stated that he believed Vice was “a very poor surgical candidate given his
level of motivation to follow treatment recommendations[.]” Id. PA Hanvey
offered Vice the use of a walker and cane and Vice refused. Id. Later the same
day, Amber Hagen documented that she witnessed Vice transfer himself from
the wheelchair to the toilet and then to the floor without pain or problems.
Docket 58-50. On October 27, 2016, Vice visited LPN Alyssa Johnson at Health
Services and complained that he was unable to walk. Docket 58-51. LPN
Johnson noted that “multiple reports from unit staff state that [Vice] walks
throughout the day.” Id.
On November 10, 2016, Vice visited Health Services in a wheelchair
stating that he had not showered since October 15, 2016, and stating that he
wanted a walker. Docket 58-3. On November 14, 2016, Health Services
received a medical kite from Vice that stated, “This is the 29th day with no
shower or mobility and I have been bed ridden I need pain treatment and a
wheelchair order so I will be able to get to the downtown appt that is
scheduled.” Docket 58-54. On November 16, 2018, Health Services received a
medical kite from Vice that stated, “This is the 30th day since I fell and I have
not been given any pain relief of any means of mobility you are causing me to
miss my religious programs and my legal access and any other schooling I
would like to attend.” Docket 58-55. On November 19, 2016, Health Services
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received a kite stating, “My brain is pounding on my skull and my head keeps
falls (sic) forward from the pain. I am requisting (sic) a pain reliever and a neck
brace and have been for days.” Docket 58-56.
On November 24, 2016, RN Hollie Nedved visited Vice at his cell and
observed him walk toward the cell front. Docket 58-57. RN Nedved encouraged
Vice to take his medication and Vice stated that he had stopped taking his
medication 40 days earlier. Id. On November 23 and November 24 of 2016
Health Services received medical kites from Vice where he asked for a
wheelchair, neck brace, and pain medication. Id. He also stated that he had not
showered since October 15, 2016. Id. On November 30, 2016, Avera Medical
Group Neurology issued its report on Vice’s EMG/Peripheral Nerve Conduction
Study. Docket 58-59. The result of the study stated that “There is no
convincing electrophysiologic evidence of a radiculopathy, plexopathy or other
mononeuropathy affecting the bilateral upper or lower extremities. There is also
no evidence of a more diffuse myogenic disorder or of CIDP.” Id.
On December 5, 2016, RN Schreurs received a report that Vice stated
that he could walk and would like a wheelchair “to walk behind and rest if
necessary.” Docket 58-60. RN Schreurs discussed the request with Dr. Joe
Hanvey and decided to order a walker with a seat for ninety days. Id. On
December 14, 2016, Vice visited Health Services to discuss the results of his
EMG/nerve conduction study. Docket 58-63. Dr. Regier discussed the results
of the test with Vice and Vice requested “the strongest pain medicine you can

12

give me.” Id. Dr. Regier requested a follow-up appointment with Dr. Asfahani.
Id.
On January 17, 2017, Dr. Asfahani evaluated Vice for chronic neck pain
and low back pain. Docket 58-67. Dr. Asfahani’s impression stated that “the
lumbar spine show[s] partial lumbarization of the S1 vertebral body with
multilevel disc degeneration.” Id. His impression also states that Vice has “mild
canal stenosis,” “foraminal stenosis with chronic mass effect,” and “moderate
degenerative disc disease.” Id. Dr. Asfahani’s treatment plan consisted of
physical therapy, an updated MRI, a left C6-7 epidural steroid injection, and
another follow-up appointment. Id.
On May 15, 2017, Vice had a follow-up appointment with Dr. Asfahani.
Docket 58-72. At the appointment, Dr. Asfahani noted that Vice had recently
undergone a bilateral L3, L4, L5 medial branch block but the series could not
be completed due to Vice’s pain and discomfort. Id. As a result of the
appointment, Dr. Asfahani faxed his recommendations to the prison stating
that he recommends that Vice go to Avera Pain Management for pain
management and stated that Vice is a candidate for a left L5S1 lumbar
microdiscectomy. Docket 58-73. Vice was then scheduled for surgery. Docket
58-74.
On June 12, 2017, Vice received his left L5S1 lumbar microdiscectomy
and returned to Health Services with DOC staff post-operative. Docket 58-75.
Upon returning, Health Services noted he felt lethargic. Id. Around two hours
later, RN Rachel DePree noted that Vice was visiting with a patient in the
13

adjacent bed and moving in the bed without visible pain. Id. Vice was also able
to walk himself to the scale without help and stated that his pain was 10/10 in
his lower back. Id.
On June 16, 2017, Vice went to the med window and “inquired about
wanting to refuse his upcoming outside appointment in order to have his
medical hold revoked.” Docket 58-77. On June 17, 2017, Vice presented to sick
call “requesting to sign a refusal for upcoming neurology follow up as he wants
his medical hold lifted. [Vice] is trying to be moved to Springfield. ROR is signed
at this time for scheduled follow up.” Id. On August 14, 2017, Vice had a
follow-up appointment with Dr. Regier regarding his surgery. Docket 58-79.
Vice reported that he was doing well but still had some middle and low back
pain. Id. Dr. Regier recommended that Vice continue to heat and ice his back
as well as do physical therapy. Docket 58-79. He also recommended limited
lifting, bending, and twisting. Id.
LEGAL STANDARD
Pro se filings must be liberally construed. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (citation omitted). Even with this construction, “a pro se [filing]
must contain specific facts supporting its conclusions.” Martin v. Sargent, 780
F.2d 1334, 1337 (8th Cir. 1985); Ellis v. City of Minneapolis, 518 F. App’x 502,
504 (8th Cir. 2013). Summary judgment on all or part of a claim is appropriate
when the movant “shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also In re Craig, 144 F.3d 593, 595 (8th Cir. 1998). The moving party
14

can meet its burden by presenting evidence that there is no dispute of material
fact or that the nonmoving party has not presented evidence to support an
element of its case on which it bears the ultimate burden of proof. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986).
Once the moving party has met this burden, “[t]he nonmoving party may
not ‘rest on mere allegations or denials, but must demonstrate on the record
the existence of specific facts which create a genuine issue for trial.’ ” Mosley v.
City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cty. of
Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). “Further, ‘the mere existence of
some alleged factual dispute between the parties is not sufficient by itself to
deny summary judgment. . . . Instead, the dispute must be outcome
determinative under prevailing law.’ ” Id. at 910-11 (quoting Get Away Club,
Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992)). The facts, and inferences
drawn from those facts, are “viewed in the light most favorable to the party
opposing the motion” for summary judgment. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962)).
DISCUSSION
Vice alleges under 42 U.S.C. § 1983 that the defendants violated his
Eighth Amendment rights and violated his rights under the ADA and RA.
Defendants allege that they are entitled to qualified immunity and there is no
question of fact as to whether the defendants violated Vice’s rights.

15

I.

Whether CNP Top, PA Hanvey, and Dr. Carpenter were Deliberately
Indifferent to Vice’s Serious Medical Need
To show a prima facie case under 42 U.S.C. § 1983, Vice must show that

(1) defendants acted under color of state law and (2) “the alleged wrongful
conduct deprived [him] of a constitutionally protected federal right.” Schmidt v.
City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009) (citation omitted).
“[G]overnment officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). To determine whether a government official is entitled to qualified
immunity the court asks (1) whether the facts alleged, viewed in the light most
favorable to plaintiff, demonstrate the official’s conduct violated a
constitutional right, and (2) whether the constitutional right was clearly
established at the time of the alleged misconduct. Saucier v. Katz, 533 U.S.
194, 201 (2001). The court may address the elements in any order and if either
of the elements is not met, then the official is entitled to qualified immunity.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Vice alleges that CNP Top, PA Hanvey, and Dr. Carpenter violated his
Eighth Amendment right under the Constitution of the United States. The
Eighth Amendment prohibits cruel and unusual punishment. U.S. Const.
Amend. VIII. “[D]eliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the
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Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg
v. Georgia, 428 U.S. 153, 173 (1976)). “This is true whether the indifference is
manifested by prison doctors in their response to the prisoner’s needs or by
prison guards in intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once prescribed.” Id. at 104-05.
Vice must show that he suffered objectively serious medical needs and that
defendants actually knew of but deliberately disregarded those needs. Dulany
v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997).
A. Access to a Wheelchair
Vice alleges that CNP Top and PA Hanvey were deliberately indifferent to
his medical needs because he cannot walk without a wheelchair and they
refused to provide him with a wheelchair. Docket 10 at 2. First, the court must
analyze whether Vice has a serious medical need. “A serious medical need is
‘one that has been diagnosed by a physician as requiring treatment, or one that
is so obvious that even a layperson would easily recognize the necessity for a
doctor’s attention.’ ” Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997)
(quoting Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995)).
Between May 2015, when Vice returned to SDSP, and September 2016,
when Vice filed this lawsuit, Vice had a medical order for a wheelchair on two
occasions. In February 2016, Dr. Regier ordered Vice the temporary use of a
wheelchair for a period of two weeks. 5 Docket 58-11. And in April 2016, Dr.

PA Adams extended that order for one day so Dr. Regier could re-examine
Vice. Docket 58-12.
5

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Regier ordered Vice the temporary use of a wheelchair for two months. Docket
58-20. Other than those two time periods, no medical personnel diagnosed Vice
with a condition requiring the use of a wheelchair, and instead, medical
personnel prescribed use of a walker and physical therapy. Docket 58-9;
Docket 58-30; Docket 58-49.
The evidence in the record indicates that on September 12, 2016, CNP
Top informed Vice that his request for surgery was denied and she encouraged
Vice to utilize his cane. Docket 58-35. As of September 12, 2016, Vice did not
have a medical order for a wheelchair and only had a medical order for a cane.
The record indicates that PA Hanvey evaluated Vice on October 25, 2016, and
that PA Hanvey stated that Vice’s symptoms were inconsistent so he did not
order the use of a wheelchair. Docket 58-49. Instead, PA Hanvey issued an
order for use of a walker or a cane. Id. PA Hanvey also evaluated Vice on
December 5, 2016, and PA Hanvey similarly ordered Vice the use of a walker.
Docket 58-60. In October and December of 2016, PA Hanvey evaluated Vice’s
symptoms and ordered a course of treatment for Vice’s back pain. PA Hanvey
did not ignore Vice’s symptoms, but instead he attempted to treat them.
Further, there is no evidence that Vice’s need for a wheelchair was “so
obvious that even a layperson” could determine that he needed attention.
[The Eighth Circuit] has found a serious medical need that was
obvious to a layperson where an inmate: was pregnant, bleeding,
and passing blood clots; had swollen and bleeding gums and
complained of extreme tooth pain; experienced excessive urination,
diarrhea, sweating, weight loss, and dehydration related to known
diabetes; or exhibited signs of early labor and her medical records
clearly documented a history of rapid labor and delivery.
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Jones v. Minn. Dep’t of Corr., 512 F.3d 478, 482 (8th Cir. 2008) (internal
citations omitted).
In Jones, the Eighth Circuit affirmed the district court’s grant of
summary judgment finding that an inmate did not have a serious medical
need. Id. at 483. The inmate “was unable to stand or walk under her own
power, was google-eyed and unresponsive, was rolling on the ground while
grunting and groaning, was bleeding from the mouth, smelled as if she had
urinated on herself, and was breathing at a very rapid rate[.]” Id. at 482
(internal quotation omitted). But the Eighth Circuit found that these symptoms
were not so obvious that a layperson would recognize that the inmate needed
medical attention. Id. at 483. The court noted that the inmate was a “difficult
inmate” with “behavioral problems, psychological problems, and incompatibility
with other inmates.” Id. Thus, without other information, “a reasonable jury
could not find that [the inmate] had a medical need so obvious that a layperson
would easily recognize the need for a doctor’s immediate attention.” Id.
Here, Vice demonstrated conflicting symptoms. At times, he reported to
medical staff he could not walk and was in immense pain. At other times,
medical staff observed Vice walking and moving around without pain. Further,
during much of this time Vice had an order for a walker or a cane, and he
sometimes refused to use them. Docket 58-49. Unlike bleeding, blood clots, or
excessive urination, these inconsistent reports of pain were not so obvious that
even a layperson would easily recognize the need for a doctor’s attention.

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B. Refusal of Back Surgery
Vice alleges that Dr. Carpenter violated his Eighth Amendment right
because she denied a request for surgery on his back after Dr. Asfahani
recommended that Vice have surgery. Docket 10 at 2. A medical decision as to
the proper course of treatment for an injury “does not represent cruel and
unusual punishment.” Estelle v. Gamble, 429 U.S. 97, 107 (1976). “Absent
deliberate indifference, inmates do not have a right to receive a specific or
desired course of treatment.” Mace v. Johnson, 2014 WL 538580, at *11 (D.
Minn. Feb. 11 2014). Doctors are “free to exercise their independent medical
judgment.” Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). “The
prisoner must show more than negligence, more even than gross negligence,
and mere disagreement with treatment decisions does not rise to the level of a
constitutional violation.” Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th
Cir. 1995).
In Jolly v. Knudsen, 205 F.3d 1094 (8th Cir. 2000), the Eighth Circuit
upheld the district court’s award of summary judgment in favor of a doctor who
changed an inmate’s dosage levels. Id. at 1097. The prison doctor increased the
inmate’s medication dosage levels after observing that “the concentrations of
the medicines in [the inmate’s] blood were at sub-therapeutic levels.” Id. The
doctor also saw the inmate “on numerous occasions following the dosage
changes, attempted various corrective actions, and referred [the inmate] to a
specialist.” Id. The Eighth Circuit reasoned that the inmate must show more
than “mere disagreement with treatment decisions” to support a constitutional
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violation and that the record clearly established that the prison doctor was
attentive and attempting to correct the inmate’s dosage levels. Id. at 1096-97
(quoting Estate of Rosenberg, 56 F.3d at 37.
In Phillips v. Jasper County Jail, 437 F.3d 791 (8th Cir. 2006), the Eighth
Circuit upheld the district court’s award of summary judgment to a prison
doctor who did not “prescribe the proper medication and fail[ed] to monitor his
prescription prior to [the inmate’s] seizure.” Id. at 795. The court stated that
“[a]t most . . . [the inmate’s] complaint makes out a case for malpractice.” Id.
But the court reasoned that the mere fact that the inmate disagreed with the
doctor as to the proper treatment method for his seizures does not establish
deliberate indifference. Id.
Vice establishes that he has a serious medical need for a surgery
because another physician has indicated that surgery on his back is medically
necessary. But Vice fails to establish that Dr. Carpenter acted with deliberate
indifference to Vice’s medical need. Dr. Carpenter articulated that she
disagreed with Dr. Asfahani’s recommendation for surgery because Vice had
inconsistent reports of symptoms, and in the past, Vice had not followed
treatment recommendations. Because of these concerns, Dr. Carpenter
believed that Vice was a poor candidate for surgery. Further, Vice was seen by
medical personnel on numerous occasions and during these visits, medical
personnel treated Vice’s back injury and offered him the use of a cane, which
he often refused. Docket 58-35; Docket 58-49. Similar to Jolly, Dr. Carpenter
was attentive to Vice’s needs and attempted to treat his pain without the use of
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surgery. Dr. Carpenter’s difference in medical opinion is not deliberate
indifference.
II.

Excessive Force
Vice alleges that Fitzhugh, Boysen, Kirvin, Hermann, and Stoynov

utilized excessive force in violation of his Eighth Amendment rights. “The
Eighth Amendment protects incarcerated prisoners from cruel and unusual
punishment, and this protection is grounded upon their right to be free from
unnecessary and wanton infliction of pain at the hands of correctional officers.”
Jones v. Shields, 207 F.3d 491, 494-95 (8th Cir. 2000). “When confronted with
a claim of excessive force alleging a violation of the Eighth Amendment, the
core judicial inquiry is ‘whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.’ ”
Santiago v. Blair, 707 F.3d 984, 990 (8th Cir. 2013) (quoting Hudson v.
McMillian, 503 U.S. 1, 5 (1992)). “Factors which inform this inquiry include the
need for the application of physical force; the relationship between the need for
physical force and the amount of force applied; and the extent of injury
suffered by the inmate.” Jones, 207 F.3d at 495.
A. Fitzhugh
Vice alleges Fitzhugh used excessive force when he wrote Vice up for a
false disciplinary report. The core determination when evaluating a claim of
excessive force under the Eighth Amendment is whether the alleged excessive
force was used “in a good-faith effort to restore discipline[.]” Santiago, 707 F.3d
at 990 (quoting Hudson, 503 U.S. at 6-7). Here, during a fire drill, Vice refused
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to comply with staff directives claiming that he was paralyzed. Docket 58-42. In
response, Fitzhugh called Health Services to determine whether Vice had a
medical condition that would render him paralyzed. Docket 58-41. When
Health Services confirmed that Vice did not have a medical condition that
would render him paralyzed and did not have a medical order for a wheelchair,
Fitzhugh authored a disciplinary report stating that Vice pretended to be
paralyzed. Id.
Fitzhugh did not utilize excessive force. Fitzhugh relied on Health
Services to confirm whether or not Vice was, in fact, paralyzed and then
disciplined Vice for refusing directives during a safety drill. Weighing the lack of
physical force against the need to maintain safety and order in the prison
setting and Fitzhugh’s reliance on Health Services, the court finds that
Fitzhugh’s actions do not rise to the level of excessive force under the Eighth
Amendment.
B. Boysen and Kirvin
Vice alleges that Boysen and Kirvin used excessive force when they
sprayed Vice with mace because Vice could not stand up. In Jones, the Eighth
Circuit upheld a district court’s decision to grant a correction officer’s motion
for judgment as a matter of law on an inmate’s claim of excessive force. Jones,
207 F.3d at 494. The correction officer sprayed the inmate with capstun after
the inmate refused to work and allegedly refused to return to his barracks
when instructed. Id. at 493. The Eighth Circuit reasoned that the use “of

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capstun to control a recalcitrant inmate constitutes a ‘tempered response by
prison officials[.]’ ” Id. at 496.
In Burns v. Eaton, 752 F.3d 1136 (8th Cir. 2014), the Eighth Circuit
affirmed the district court’s grant of summary judgment on an inmate’s claim
of excessive force. Id. at 1138. The correction officer sprayed the inmate with
pepper spray after the inmate refused to be cuffed, argued with the officer, and
threw a shampoo bottle at the officer. Id. The court noted that the officer
warned the inmate that he would be sprayed if he did not comply with orders
and that there was no evidence of a malicious motive. Id. at 1140. Thus, the
court found that the force used was not excessive. Id.
Here, Boysen sprayed Vice with mace after Vice refused hand restraints,
demanded a new mattress, expressed thoughts of self-harm, and ignored
several directives from staff. Docket 58-44; Docket 58-45; Docket 58-46;
Docket 58-47. Similar to the officers in Jones and Burns, Boysen utilized the
mace to control Vice after Vice was uncooperative and insubordinate. Thus,
Boysen’s use of force “was applied in a good-faith effort to maintain or restore
discipline,” and was not excessive. Santiago, 707 F.3d at 990 (quoting Hudson,
503 U.S. at 6-7).
As to Kirvin, Vice alleges that “Robert Kirvin sprayed me with mace for
not being able to walk.” Docket 10 at 2. There is no other evidence in the
record of Vice’s allegation against Kirvin. While defendants moved generally for
summary judgment on all claims, defendants did not provide any evidence of
whether an encounter occurred, and if it did, the circumstances of that
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encounter 6 in their brief or in their statement of undisputed material facts. See
Docket 58; Docket 61. The court’s screening order, dated December 15, 2016,
states that “the court finds that these allegations state a claim of deliberate
indifference under the Eighth Amendment against defendants Dr. Carpenter,
Boyson, Kirvin, Fitzu, Herrmann, Stoymuet, 7 Top and PA Hanvey. These claims
survive screening.” Docket 17 at 6. Defendants have not identified any
undisputed material facts or made a specific argument on the claims to
warrant summary judgment in favor of Kirvin.
C. Hermann and Stoynov
Vice alleges that Hermann and Stoynov forced him to stand even though
he is unable to stand on his own. Docket 10 at 2. Similar to Kirvin, there is no
evidence in the record regarding the existence of, or absence of, any
interactions between Vice and Hermann or Stoynov. 8 While defendants moved
generally for summary judgment on all claims, defendants did not provide any
evidence of the circumstances surrounding this allegation in their statement of
undisputed facts or argument related to this specific claim in their motion for
summary judgment. The court’s screening order, dated December 15, 2016,
states that “the court finds that these allegations state a claim of deliberate
indifference under the Eighth Amendment against defendants Dr. Carpenter,
Defendants did not discuss Kirvin in their brief or statement of undisputed
facts. The court searched through defendants’ submitted exhibits and could
not find a reference to Kirvin.
7 Vice originally referred to CO Stoynov as CO “Stoymuet” in his pleadings.
8 Defendants’ did not discuss Stoynov or Hermann in their brief or statement of
undisputed facts. The court searched through defendants’ submitted exhibits
and could not find a reference to Stoynov or Hermann.
6

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Boyson, Kirvin, Fitzu, Hermann, Stoymuet, Top and PA Hanvey. These claims
survive screening.” Docket 17 at 6. Defendants have not identified any
undisputed material facts that would warrant summary judgment in favor of
Hermann or Stoynov.
III.

Vice’s Claims under the ADA and RA
Vice alleges PA Hanvey, Dr. Carpenter, and CNP Top violated his rights

under the ADA and RA. The court will consider Vice’s claims under the ADA
and RA together because “[t]he ADA and § 504 of the Rehabilitation Act are
‘similar in substance’ and . . . ‘cases interpreting either are applicable and
interchangeable’ for analytical purposes.” Bahl v. Cty. of Ramsey, 695 F.3d
778, 783 (8th Cir. 2012) (quoting Randolph v. Rodgers, 170 F.3d 850, 858 (8th
Cir. 1999)). Title II of the ADA “provides that ‘no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.’ ” Id. (quoting 42
U.S.C. § 12132). “Under the ADA, disability is defined as: ‘(A) a physical or
mental impairment that substantially limits one or more of the major life
activities of such individual; (B) a record of such impairment; or (C) being
regarded as having such an impairment.’ ” Taylor v. Nimock’s Oil Co., 214 F.3d
957, 960 (8th Cir. 2000) (quoting 42 U.S.C. § 12102(2)).
Under the ADA, “an impairment is ‘substantially limiting’ if it renders an
individual unable to perform a major life activity that the average person in the
general population can perform, or if it significantly restricts the condition,
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manner, or duration under which an individual can perform such an activity
compared to the general population.” Taylor, 214 F.3d at 960 (citing 29 C.F.R.
§ 1630.2(j)(1)(i)-(ii). “Major life activities include caring for oneself, performing
manual tasks, walking, seeing, hearing, breathing, learning, and working . . . .”
Id. (citing 29 C.F.R. § 1630.2(i).
Here, Vice alleges that his disability is his inability to walk on his own
without a wheelchair. Because walking is considered a major life activity, the
inability to walk would be considered a disability under the ADA. But Vice has
failed to show that his back injury substantially limits his ability to walk on his
own. The facts in the record indicate that there is no medical reason that Vice
is unable to walk and medical personnel have indicated that utilizing a
wheelchair could make his injury worse. See Docket 58-30. As recently as July
27, 2017, medical personnel at Dr. Asfahani’s office reported that Vice
recovered well from his surgery and only prescribed conservative measures
such as ice, heat, and limited lifting, bending and twisting. Docket 58-79 at 3.
Thus, even viewing the facts in favor of Vice, there is no dispute of material fact
that Vice is able to walk and does not suffer from a disability. Thus, Dr.
Carpenter, PA Hanvey, and CNP Top are entitled to summary judgment in their
favor.
IV.

Motions for Preliminary Injunctions and to Appoint Counsel
Vice again moves the court to enter a preliminary injunction. Docket 68;

Docket 69; Docket 80. While Vice titles his motions as motions for preliminary
injunction, they are actually motions to add new claims to his current
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Amended Complaint. The first motion alleges that defendants have
implemented a new policy that violates Vice’s right to access the courts.
Docket 68. The second motion alleges that defendants have failed to
adequately treat Vice’s sleep apnea. Docket 69. And the third motion again
alleges the defendants’ new policy violates his right to access the court. Docket
80.
Under Federal Rule of Civil Procedure 15, a party may amend its
pleading once as a matter of course within 21 days after serving it. “In all
other cases, a party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court should freely give leave when
justice so requires.” Fed. R. Civ. P. 15(a)(2). Vice failed to follow the local rules,
which state:
[A]ny party moving to amend a pleading must attach a copy of the
proposed amended pleading to its motion to amend with the
proposed changes highlighted or underlined so that they may be
easily identified. If the court grants the motion, the moving party
must file a clean original of the amended pleading within 7 days.
D.S.D. Civ. LR 15.1. Because Vice failed to follow the local rules, his motions
are denied.
Vice also requests that the court appoint him counsel. Docket 78. “A pro
se litigant has no statutory or constitutional right to have counsel appointed in
a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). In
determining whether to appoint counsel to a pro se litigant, the district court
considers the complexity of the case, the ability of the litigant to investigate the
facts, the existence of conflicting testimony, and the litigant’s ability to present
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his claim. Id. Vice has moved the court to appoint him counsel four times
previously. Docket 1; Docket 9; Docket 13; Docket 44. Vice continues to be
capable of presenting his claims, and the court will continue to liberally
construe his filings. His motion to appoint (Docket 78) is denied.
CONCLUSION
In conclusion, it is ORDERED that:
1. Defendants’ motion for summary judgment (Docket 57) as to
defendants Dr. Mary Carpenter, David Fitzhugh, Jess Boysen, CNP
Tammy Top, and PA Joe Hanvey is GRANTED;
2. Defendants’ motion for summary judgment (Docket 57) as to
defendants Kirvin, Hermann, and Stoynov is DENIED;
3. Plaintiff’s motions for preliminary injunction (Docket 68; Docket 69;
Docket 80) are DENIED;
4. Plaintiff’s motion to appoint counsel (Docket 78) is DENIED.
5. Defendants may have until August 30, 2018, to file a motion for
summary judgment on the claims against Kirvin, Hermann, and
Stoynov.
DATED July 31, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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