Maday v. Dooley et al

Filing 113

ORDER granting 26 Motion to Dismiss for Failure to State a Claim; adopting as modified 96 Report and Recommendation; overruling 99 Objection to Report and Recommendation. Signed by U.S. District Judge Karen E. Schreier on 8/24/18. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
STANLEY J. MADAY,

4:17-CV-04168-KES

Plaintiff,
vs.
BOB DOOLEY, CHIEF WARDEN AT
MIKE DURFEE STATE PRISON,
INDIVIDUAL AND OFFICIAL CAPACITY;
DENNIS KAEMINGK, SECRETARY OF
THE SOUTH DAKOTA DOC,
INDIVIDUAL AND OFFICIAL CAPACITY;
DR. MARY CARPENTER, DIRECTOR OF
THE DEPARTMENT OF HEALTH,
INDIVIDUAL AND OFFICIAL CAPACITY;
JENNIFER STANWICK-KLIMEK,
DEPUTY WARDEN AT MIKE DURFEE
STATE PRISON, INDIVIDUAL AND
OFFICIAL CAPACITY; REBECCA
SCHIEFFER, ASSOCIATE WARDEN AT
MIKE DURFEE STATE PRISON,
INDIVIDUAL AND OFFICIAL CAPACITY;
ALEJANDRO REYES, ASSOCIATE
WARDEN AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; BRENT FLUKE, ASSOCIATE
WARDEN AT MIKE DURFEE STTAE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; JOSH KLIMEK, UNIT
MANAGER AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; TRAVIS TJEERDSMA, CASE
MANAGER AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; TAMMY DEJONG, CASE
MANAGER AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; PA MICHAEL JOE HANVEY,
MEDICAL PROVIDER AT MIKE
DURFEE STATE PRISON, INDIVIDUAL
AND OFFICIAL CAPACITY; PA BRAD

ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING BRAD ADAMS

ADAMS, MEDICAL PROVIDER AT MIKE
DURFEE STATE PRISON, INDIVIDUAL
AND OFFICIAL CAPACITY; DR.
STEPHAN SCHROEDER, MEDICAL
PROVIDER AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; MISTY TOLSMA-HANVEY,
NURSING SUPERVISOR, AT MIKE
DURFEE STATE PRISON INDIVIDUAL
AND OFFICIAL CAPACITY; LINDSEY
RABBASS, NURSE AT MIKE DURFEE
STATE PRISON, INDIVIDUAL AND
OFFICIAL CAPACITY; ROBIN MYER,
NURSE AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; CANDICE FEJFAR, NURSE
AT MIKE DURFEE STATE PRISON,
INDIVIDUAL AND OFFICIAL CAPACITY;
DAYNA KLAWITTER, NURSE AT MIKE
DURFEE STATE PRISON, INDIVIDUAL
AND OFFICIAL CAPACITY; DENNIS
CROPPER, CORRECTIONAL OFFICER
AT MIKE DURFEE STATE PRISON,
INDIVIDUAL AND OFFICIAL CAPACITY;
THOMAS HUITEMA, CORRECTIONAL
OFFICER AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; MICHAEL MEYER,
CORRECTIONAL OFFICER AT MIKE
DURFEE STATE PRISON, INDIVIDUAL
AND OFFICIAL CAPACITY; LORI
STRATMAN, CORRECTIONAL OFFICER
AT MIKE DURFEE STATE PRISON,
INDIVIDUAL AND OFFICIAL CAPACITY;
MIKE GROSSHUESCH,
CORRECTIONAL OFFICER AT MIKE
DURFEE STATE PRISON, INDIVIDUAL
AND OFFICIAL CAPACITY; NICOLE ST.
PIERRE, CORRECTIONAL OFFICER AT
MIKE DURFEE STATE PRISON,
INDIVIDUAL AND OFFICIAL CAPACITY;
MURIEL NAMMINGA, LAUNDRY
SUPERVISOR AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; CATHERINE SCHLIMGEN,
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LEGAL COUNSEL FOR THE SOUTH
DAKOTA DOC, INDIVDUAL AND
OFFICIAL CAPACITY; UNKNOWN CBM
FOOD SERVICES EMPLOYEES,
INDIVIDUAL AND OFFICIAL
CAPACITIES; UNKNOWN SOUTH
DAKOTA DOC EMPLOYEES,
INDIVIDUAL AND OFFICIAL
CAPACITES; UNKNOWN SOUTH
DAKOTA DOH EMPLOYEES,
INDIVIDUAL AND OFFICIAL
CAPACITIES; JON E. LITSCHER,
SECRETARY OF THE WISCONSIN
DOC, INDIVIDUAL AND OFFICIAL
CAPACITY; KATHARINE A. ARISS,
ASSISTANT LEGAL COUNSEL FOR THE
WISCONSIN DOC, INDIVIDUAL AND
OFFICIAL CAPACITY; THOMAS P.
MALONEY, LIBRARY SERVICES AND
EDUCATIONAL TECHNOLOGY
COORDINATOR FOR THE WISCONSIN
DOC, INDIVIDUAL AND OFFICIAL
CAPACITY; UNKNOWN WISCONSIN
DOC EMPLOYEES, INDIVIDUAL AND
OFFICIAL CAPACITIES; CBM FOOD
SERVICES, MEAL AND COMMISSARY
PROVIDER FOR THE SOUTH DAKOTA
DOC, OFFICIAL CAPACITY; STEPHANIE
HAMILTON, RN AT MIKE DURVEE
STATE PRISON, INDIVIDUAL AND
OFFICIAL CAPACITY; TIFFANY VOIGT,
UNIT COORDINATOR, INDIVIDUAL
AND OFFICIAL CAPACITY; DIANE
ROMKEMA, CASE MANAGER,
INDIVIDUAL AND OFFICIAL CAPACITY;
GLOBAL TEL & LINK
CORPORATION, OFFICIAL CAPACITY;
UNKNOWN GTL EMPLOYEES,
INDIVIDUAL AND OFFICIAL
CAPACITIES; LEXIS NEXIS, OFFICIAL
CAPACITY; AND UNKNOWN LEXIS
NEXIS EMPLOYEES, INDIVIDUAL AND
OFFICIAL CAPACITIES;
Defendants.
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Plaintiff, Steven Maday, filed this lawsuit under 42 U.S.C. § 1983.
Dockets 1 and 94. The case was referred to Magistrate Judge Veronica Duffy
under 28 U.S.C. § 636(b)(1)(B), including defendant Brad Adams’s motion to
dismiss under Fed. R. Civ. P. 12(b)(6). On May 31, 2018, Magistrate Judge
Duffy submitted her report and recommended that Adams’s motion to dismiss
be granted. Docket 96. Maday objected to the report and recommendation.
Docket 99. For the reasons below, the court adopts Magistrate Judge Duffy’s
report and recommendation as modified and grants Adams’s motion to dismiss.
FACTUAL BACKGROUND
For a complete factual background regarding Maday’s allegations against
Adams, the court refers to Magistrate Judge Duffy’s report and
recommendation. See Docket 96. The court will briefly provide a background of
Maday’s allegations against Adams, construing facts pleaded by Maday as
true. Maday claims that Adams was deliberately indifferent to his serious
medical needs. Docket 1 ¶ 38.
Adams first saw Maday on October 14, 2015 to follow up on a September
11, 2015 sick call. Docket 1 ¶ 65. Maday had a lesion under his left big toenail
and severe pain in his right heel. Id. Adams referred Maday to a podiatrist
outside of the prison for the lesion, provided arch support inserts for the heal
pain, and ordered x-rays to rule out a bone spur. Id.
Adams next saw Maday on June 17, 2016. Docket 94 ¶ 514. Maday
requested his preferred brand of diabetic sock, but Adams could not provide
Maday with his preferred brand of diabetic sock. Id. Adams explained that the
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only diabetic socks available were those issued by the MDSP laundry. Id. So
Adams offered Maday a prescription for Ted hose stockings and gave Maday a
handout on plantar fasciitis. Id. The handout included various stretches and
the following instruction: “You may need to stay completely off your foot for
several days when the pain is severe.” Docket 99-1.
On July 1, 2016, Adams signed off on nurse Stephanie Hamilton’s
treatment plan that was developed during Maday’s June 27, 2016 sick call
with Hamilton. Docket 94 ¶ 517. During sick call, Maday complained of severe
pain in both feet and requested a “medical lay in tray.” Id. Maday relied on the
handout he received from Adams. Dockets 94 and 99. Hamilton denied
Maday’s request and recommended walking to stretch the tendons. Docket 94
¶ 517.
Then Adams saw Maday for a chronic care visit on August 9, 2016. See
Docket 1 ¶ 83. Maday asked “if it was normal to have constant pain at the site
of a fracture after it was supposed to have healed.” Id. Adams responded that
“it was not unheard of for a patient to experience pain at the site of a fracture
after it had healed.” Id. Maday relied on Adams’s response and delayed seeking
further treatment until his pain worsened. Id.
On February 7, 2017, Adams saw Maday for another chronic care visit.
Docket 1 at ¶ 86. Maday complained of constant pain in his foot and Adams
ordered x-rays of Maday’s foot. Id. Maday’s foot was x-rayed on February 10,
2017. Id. ¶ 87. Adams reviewed the x-rays with Maday on February 15, 2017.
Id. ¶ 89. Adams diagnosed Maday with a stress fracture with a partial
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displacement. Id. No walking boot in Maday’s size was available so Adams
wrapped Maday’s foot in a splint and provided crutches. Id. On February 20,
2017, Dr. Terrance Peterson, the outside podiatrist, placed Maday’s foot in an
aircast and recommended ultrasonic bone growth simulator to accelerate the
healing process. Id. ¶ 91. Maday began receiving ultrasonic bone growth
treatment on March 1, 2017. Id. ¶ 93.
STANDARD OF REVIEW
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). In conducting its de
novo review, this court may then “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
LEGAL STANDARD FOR 12(b)(6) MOTIONS
A court may dismiss a complaint for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). When reviewing a motion to
dismiss under Rule 12(b)(6), the court assumes that all facts in the complaint
are true and construes any reasonable inferences from those facts in the light
most favorable to the nonmoving party. Schaaf v. Residential Funding Corp.,
517 F.3d 544, 549 (8th Cir. 2008). The factual content in the complaint must
“ ‘allow[] the court to draw a reasonable inference that the defendant is liable
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for the misconduct alleged.’ ” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). As a
pro se plaintiff, the court lowers the pleading standards liberally in favor of the
complaint, however, the court “ ‘will not supply additional facts, nor will
construct a legal theory for plaintiff that assumes facts that have not been
pleaded.’ ” Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (quoting Dunn v.
White, 880 F.2d 1188, 1197 (10th Cir. 1989)).
If the complaint does not contain these bare essentials, dismissal is
appropriate. See Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). “To
survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’ ” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility 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. (quoting Bell Atl. Corp., 550
U.S. at 556 (2007)). Federal pleading rules call for “a short and plain statement
of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2);
they do not countenance dismissal of a complaint for imperfect statement of
the legal theory supporting the claim asserted.
DISCUSSION
The Eighth Amendment prohibits cruel and unusual punishment
including prison officials’ deliberate indifference to the medical needs of
inmates. Allard v. Baldwin, 779 F.3d 768, 771 (8th Cir. 2015). “[D]eliberate
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indifference to serious medical needs of prisoners constitutes the ‘unnecessary
and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173
(1976)). “This is true whether the indifference is manifested by prison doctors
in their response to 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.
“[T]his conclusion does not mean, however, that every claim by a
prisoner that he has not received adequate medical treatment states a violation
of the Eighth Amendment.” Id. at 105. “[A] prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious
medical needs.” Id. at 106. Allegations of negligence will not suffice. See Estate
of Rosenberg v. Crandall, 56 F.3d 35, 37 (8th Cir. 1995) (“The prisoner must
show more than negligence, more even than gross negligence, and mere
disagreement with treatment decisions does not rise to the level of a
constitutional violation.”). “Grossly incompetent or inadequate care can
constitute deliberate indifference, as can a doctor’s decision to take an easier
and less efficacious course of treatment.” Smith v. Jenkins, 919 F.2d 90, 93
(8th Cir. 1990) (citations omitted). See also Allard, 779 F.3d at 772 (deliberate
indifference can be shown by the defendant’s decision to take an easier and
less efficacious course of treatment or showing the defendant intentionally
delayed or denied access to medical care).

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The deliberate indifference standard includes both an objective and
subjective component. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
1997) (citing Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997)). The
plaintiff “must demonstrate (1) that [he] suffered objectively serious medical
needs and (2) that the prison officials actually knew of but deliberately
disregarded those needs.” Id. (citing Coleman, 114 F.3d at 784). 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.” Camberos v. Branstad, 73
F.3d 174, 176 (8th Cir. 1995) (citing Johnson v. Busby, 953 F.2d 349, 351 (8th
Cir. 1991)). To be liable for deliberately disregarding medical needs, “the official
must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994). “ ‘[T]he failure to treat a medical
condition does not constitute punishment within the meaning of the Eighth
Amendment unless prison officials knew that the condition created an
excessive risk to the inmate's health and then failed to act on that
knowledge.’ ” Coleman, 114 F.3d at 785 (citing Long v. Nix, 86 F.3d 761, 765
(8th Cir. 1996)).
In the report and recommendation, Magistrate Judge Duffy assumed
without so holding that Maday suffered from serious medical needs. Docket 96
at 13. Magistrate Judge Duffy then found that each time Maday alleges that he

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sought care from Adams, Adams responded with some type of appropriate
medical care. Id.
Maday raises six objections to Magistrate Judge Duffy’s report and
recommendation. Docket 99. Maday’s first objection directs the court to the
Plantar Fasciitis handout Maday allegedly received from Adams. Id. Maday’s
second objection addresses Adams’s approval of Hamilton’s treatment plan. Id.
Maday alleges Adams “electronically signed off on Hamilton’s treatment plan
despite the fact that it was contrary to the one he had already given me.”
Docket 94 ¶ 518. Adams allegedly did so “without performing an examination.”
Docket 99. In doing so, Maday alleges that Adams “ignored Plaintiff’s
complaints of severe pain.” Id.
Maday’s claim that Adams approved a treatment plan that was contrary
to his earlier plan is no more than a disagreement with Adams’s treatment
decision. And “[a] showing of deliberate indifference . . . requires more than
mere disagreement with treatment decisions.” Gibson v. Weber, 433 F.3d 642,
646 (8th Cir. 2006). If Adams found that Maday required a “medical lay in
tray,” he would not have approved Hamilton’s treatment plan denying a tray.
And, even at the time Adams provided Maday the handout, he did not order a
medical lay in tray.
Maday’s third objection contends that Adams failed to fully comply with
Magistrate Judge Duffy’s order to immediately provide Maday his medical
records, and this prevented Maday from responding to Adams’s motion to
dismiss. Docket 99. Maday does not describe what materials Adams allegedly
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failed to provide or how that information is necessary to defend against the
motion to dismiss. In a motion to dismiss, the court treats Maday’s factual
allegations as true. Discovery material is not necessary to respond to a motion
to dismiss.
In his fourth objection, Maday contents the report misstates certain
allegations. Docket 99 at 4. Maday objects to the report’s second footnote
stating prison medical staff provided Maday with a cam walker boot and
crutches on November 11, 2015. Maday argues the footnote omits the following
details from his amended complaint: “After two days of walking around the
prison with a broken foot that was diagnosed on 11/11/15 Plaintiff was finally
called to medical at about 1100 on 11/13/15 where my foot was placed in a
‘cam walker boot’ and I was issued crutches.” Docket 94 ¶ 512. Maday’s
complaint makes clear that Avera Medical Group Radiology generated a report
diagnosing Maday’s fracture. See id. at ¶ 511. Maday never alleges that Adams
had any knowledge of the report or caused the two-day delay in further
treatment.
Maday next contends that the report misstates the allegation involving
Hamilton and the reapply of Maday’s splint. Docket 99 at 2. This objection is
not relevant in determining whether Maday states a deliberate indifference
claim against Adams as it only involves Hamilton. To the extent Maday’s claim
involves Adams’s failure to supervise Hamilton, there is no supervisory liability
under § 1983. See Ripson v. Alles, 21 F.3d 805, 809 (8th Cir. 1994).

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Maday’s final objection is to Magistrate Judge Duffy’s recommendation
that Maday’s claims against Adams be dismissed with prejudice. Docket 99 at
3. Maday requests that any dismissal be without prejudice. Because there
have been no findings on the merits, a dismissal without prejudice is
appropriate.
Maday’s complaint, amended complaint, and objections to the report and
recommendation fail to state a deliberate indifference claim against Adams.
Maday’s allegations fall short of stating a claim of deliberate indifference
through constitutionally deficient care.
Thus, it is ORDERED that:
1.

Maday’s objections to the report and recommendation (Docket 99)
are overruled.

2.

The report and recommendation of Magistrate Judge Duffy
(Docket 96) is adopted as modified.

3.

Adams’s motion to dismiss (Docket 26) is granted. Maday’s claim
against Adams is dismissed without prejudice.

DATED August 24, 2018,
BY THE COURT:

/s/ Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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