Augustine v. Pitchford et al

Filing 43

ORDER Granting in part and denying in part 26 Defendants' Motion for Summary Judgment and Denying as moot 35 Motion for Protective Order. Signed by U.S. District Judge Karen E. Schreier on June 14, 2021. (Sent to Daniel Todd Augustine via US Postal Service) (DLC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DANIEL TODD AUGUSTINE,

4:20-CV-04072-KES

Plaintiff,
vs.
SAVANNAH PITCHFORD,
Captain/Officer in charge, in her
individual capacity, DARIN YOUNG,
Chief Warden, in his individual
capacity, JESSICA COOK, Facility
Warden, in her individual capacity,
JESSICA SCHREURS, Director of
Nursing/RN, in her individual capacity,
DERRICK BIEBER, Unit Manager, in
his individual capacity,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

Defendants.
Plaintiff, Daniel Todd Augustine, filed a pro se civil rights lawsuit under
42 U.S.C. § 1983. Docket 1. Augustine’s claims against defendants in their
official capacities were dismissed in this court’s screening order. Docket 5 at 8.
Now, defendants move in their individual capacities for summary judgment
based on qualified immunity and for a protective order. Dockets 26, 35.
I.

Defendants’ Motion for Summary Judgment
A.

Factual Background

Viewing the evidence in the light most favorable to Augustine, as the

non-moving party, the facts are: 1 Augustine sustained an “open wound” while
doing burpees during recreation time at the South Dakota State Penitentiary
(SDSP) on January 23, 2020. Docket 32 ¶¶ 2, 20. He waited two days before
reporting his injury to Health Services. Id. ¶ 11. When he did report the injury,
he described it as a “zit/blister” and “pop[ped]” it. Id. ¶ 12. Augustine showed
the injury to Health Services staff and they “cultured [his] wound and dressed
it.” Id. ¶ 13 (brackets in original). Augustine claims that when he entered Health
Services, he was met with laughter, profanity, and snide comments. Docket 40-1
at 8. Health Services instructed Augustine on how to use warm packs. Docket
32 at ¶ 15. He was advised to keep the area dry and clean. Id. ¶ 16. He was also
instructed on how to engage in proper hand washing to reduce the chance of
infection. Id. On January 25, 2020, the same day Augustine reported his injury,
Health Services took a culture of the injury and he was instructed to return if
the injury worsened. Id. ¶¶ 17-18. A lab culture typically takes a minimum of
forty-eight hours for the results to become apparent. Id. ¶ 19.
On January 26, 2020, Augustine was prescribed ibuprofen and
acetaminophen as well as ciprofloxacin and he was again instructed on how to

Because defendants move for summary judgment, the court recites the facts
in the light most favorable to Augustine. Where the facts are disputed, both
parties’ averments are included. Under Local Civil Rule 56.1(D), “All material
facts set forth in the movant’s statement of material facts will be deemed to be
admitted unless controverted by the opposing party’s response to the moving
party’s statement of material facts.” Augustine filed a “statement of disputed
factual issues.” Docket 40. Augustine’s disputed facts do not align with the
specific number of defendants’ undisputed facts, but this court will consider
Augustine’s disputed factual issues, and liberally construes the document as
an affidavit. Compare Docket 32 with Docket 40.
2
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care for the injury. Id. ¶¶ 21-22, 25. Later that day, Augustine asserts that he
experienced severe pain that caused him to hold his breath. Docket 40-1 at 8.
Augustine reported shortness of breath and Physician Assistant Alyssa Welbig
gave a verbal order for an EKG. Docket 32 ¶ 27. Augustine claims Welbig told
him to “stop hyping it up . . . .” Docket 40-1 at 8. On the evening of January 27,
2020, Augustine went to Health Services and complained of an infection of his
right knee. Docket 32 ¶ 28. His knee was examined and the “knee revealed that
it was ‘red, swollen and ha[d] a center site, serosanguinous fluid on band-aid
about half centimeter in circumference.’ ” Id. (quoting Docket 29 ¶ 19).
Augustine asserts that Health Services said there was nothing they could do and
when he asked about E-Care, Amanda said “she wasn[’]t going to waste the
time.” Docket 40-1 at 8. The Nursing Staff chose to schedule a sick call with a
provider. Docket 32 ¶ 29. Augustine was “upset he was not being sent out” and
walked away without taking any medication. Id. (quoting Docket 29 ¶ 20). A
provider reviewed Augustine’s lab results on January 27, 2020, and did not
issue a new order. Id. ¶ 30. Augustine was seen three times by Health Services
on January 27, 2020. Dockets 27-5, 27-11, 27-13.
Later that evening, Augustine pushed the emergency call button in his cell
and claimed that he could not move and that the pain had spread to his
abdomen and groin. Id. ¶ 31. Officers allege that they said Augustine should be
seen by Health Services. Id. ¶ 32. Officer Pitchford was in charge the evening
that Augustine activated his emergency call button in his cell. Id. ¶ 40. Pitchford
contacted Health Services but they advised her that it was not necessary to see
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Augustine at that time because he had been seen earlier that day. Id. ¶ 41.
Pitchford relied on what Health Services told her and believed it was not a
medical emergency. Id. ¶ 43. She informed Augustine he would have to wait
until the morning to be seen by medical staff. Id. Augustine claims that the
denial to be seen by Health Services after he pushed the emergency call light
was a “denial of treatment . . . [that] violated his [Eighth] Amendment right[] to
be free of cruel and unusual punishment . . . .” Docket 40-1 at 2. Augustine
claims Pitchford directly participated in this alleged denial of medical treatment
and that she had “every opp[ortunity] to intervene as her rank of Captain gave
her power to have him evaluated[,] yet she failed to act when the law required
her to do so.” Docket 40 ¶ 7.
On January 28, 2020, Augustine claims that his symptoms were
agonizing, and he asked about being provided a wheelchair. Docket 40-1 at 9.
Augustine went to Health Services and insisted on being provided a wheelchair.
Docket 32 ¶¶ 48-49. Dr. Sultana, the provider at the time, denied Augustine’s
request and stated that Augustine would be fine with crutches. Id. ¶ 49.
Augustine threw his crutches down and walked out of the clinic. Id. ¶¶ 50-51.
Unit Manager Derrick Bieber spoke with Augustine about the wheelchair
request and he called Health Services but was told that Augustine was fine with
crutches. Id. ¶¶ 52-53. Because Augustine had left his crutches at Health
Services, he needed a way to get his crutches. Docket 40-1 at 9. He claims that
officers refused to bring him his crutches and would not allow other inmates to
get the crutches for him. Id. Inmates tried to help Augustine because he was in
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severe pain. Id. Bieber spoke with Augustine about the wheelchair and he called
Health Services but was told that Augustine was fine with crutches. Docket 32
¶¶ 52-53.
On January 28, 2020, the lab results came back indicating the culture
had developed “Staphylococcus Aureus- MRSA.” Id. ¶¶ 57-58. Augustine’s
treatment was changed and he was prescribed a common antibiotic prescribed
to treat infection, sulfamethoxazole trimethroprim. Id. ¶ 61. He was also
prescribed an antibiotic ointment. Id. ¶ 62. Health Services saw Augustine again
on January 29, 2020. Id. ¶¶ 63, 66. At this time, his symptoms were “much
worse” and his right knee had doubled in size compared to his left knee. Id.
Augustine claims that the wound was black in color. Docket 40-1 at 9. At this
point, Augustine claims that he could not stand up without burning pain and he
had pain in his toes and abdomen. Id. at 10.
Health Services noted that streaking was present and it was concerned
about a bone infection. Docket 32 ¶ 67. Health Services then called Avera
McKennan Emergency Department (ED) to coordinate transportation. Id. ¶ 67.
When Augustine was seen at the ED, he informed the physician that he was
“doing burpees on the gym floor on 1.23.20 and sustained a small scrape” and
later pulled off a blister over the region. Id. ¶ 68. The staff in the ED described
Augustine’s injury as a “superficial injury to his knee” that “got secondarily
infected” when he opened the blister. Id. ¶ 69. The Acute Operative Report
(Report) indicated that Augustine had “[s]eptic prepatellar bursitis of [the] right
knee.” Docket 27-146 at 1. The Report noted that although Augustine was on
5

antibiotics, his leg did not improve and became more painful. Docket 32 ¶ 70.
Augustine agreed with the orthopedic plan to have his right knee drained. Id.
¶ 73. An MRI was performed and there was “[n]o evidence of osteomyelitis or
synovitis.” Id. ¶ 77. The incision and drainage (I&D) was performed on January
30, 2020, and no further surgeries were ordered at that time. Id. ¶¶ 78, 80.
On February 1, 2020, even though Augustine complained of pain in his
calf and foot, Avera McKennan’s plan was to discharge Augustine back to prison
because complications from surgery were not seen and medication was issued.
Id. ¶¶ 82-83. Dr. Krjaca indicated that Augustine’s discharge plan of care
included:
[t]wice daily dressing changes to the right knee. Iodoform half-inch
gauze packing followed by dry dressings and an Ace wrap. The more
superior incision should have the gauze pack laterally and the more
inferior incision gauze packed medially. Remove the packing prior to
showering in the morning, replace packing and dressings after
showering.
Docket 27-146 at 2. Augustine returned to SDSP on February 2, 2020 and did
not voice any concerns. Id. ¶ 84. Augustine claims that when he returned to the
SDSP that he chose to go back to his cell because he was afraid of mistreatment
“at the hands of the state . . .” and that Dr. Sultana attempted to reduce his
medication order. Docket 40-1 at 10-11. Augustine’s Treatment Plan signed by
“AREINDERS” was identical to Dr. Krajca’s order stated above. Compare Docket
27-146 with Docket 27-27. Augustine was proscribed doxycycline (for infection),
hydrocortisone cream (for infection), tramadol, and hydrocodone (for pain relief).
Id. ¶ 86-87; Dockets 27-30, 27-32, 27-34, 27-38.
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On February 2, 2020, a week after his discharge from Avera McKennan,
Health Services scheduled Augustine to be seen by the on-site provider. Docket
32 ¶ 88. Jessica Schreurs is “employed as Director of Nursing/RN at South
Dakota State Penitentiary.” Docket 16 ¶ 8. 2 Augustine claims that from
February 2-8, 2020, Schreurs and Health Service Nurses used expired iodoform
strips to pack his wounds and he brought it to the nurses’ attention on
February 8, 2020. Docket 40-1 at 11.
On February 3, 3030, Dr. Sultana gave a verbal order to discontinue the
dose of tramadol and Hydro/APAP but ordered that Augustine start
“HYDROC/APAP” AND “TRAMADOL.” Docket 27-42. A treatment note stated
that the wound must be monitored for infection. Docket 27-43. Because of pain,
Augustine refused to allow nurses and doctors to change the dressing or
examine his leg. Docket 32 ¶¶ 96-99; Docket 27-45. Later that day, Health
Services was able to conduct a wound assessment and Augustine was told to
notify Health Services if he experienced any “redness, warmth or unusual
drainage from the site.” Docket 32 ¶ 101; see Docket 27-44. When Augustine

Defendants cite to an affidavit of Schreurs in their statement of undisputed
facts. See Docket 32 ¶ 273. This affidavit has not been filed with the court. A
statement of undisputed fact must be supported by “citing to particular parts
of material in the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations . . . admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). “The court
need consider only the cited materials, but it may consider other materials in
the record.” Id. at 56(c)(3). This court will consider the fact asserted in
defendants’ answer regarding Schreurs’s employment status. This court cannot
consider the asserted undisputed fact that as the Director, Schreurs was not
involved in the day-to-day care decisions regarding Augustine’s treatment,
because that alleged fact is not supported by material within the record.
7
2

returned that evening and was concerned about how his foot was feeling, the
Nursing Staff arranged for an “Avera E-Care” visit. Docket 32 ¶ 102. The outside
provider on the E-Care visit recommended that if Augustine had “any worsening
erythema or has a fever greater than 100.5F, he needs to be seen in the ER.” Id.
¶ 104.
On February 4, 2020, when Augustine was seen by Health Services to
assess his wound care and mobility, Augustine asked about being discharged
from the Infirmary. Id. ¶ 106, 108. After being warned about the chance of
infection and that he would need to sign a release of responsibility if he left, he
agreed to stay in the Infirmary. Id. ¶¶ 106-07. Augustine’s wound dressing was
changed and repacked. Docket 27-58. On February 6, 2020, Augustine was
warned about the risk of reinfection when he was “visualized after shower
wiping blood from his knee with [the] bottom of his hospital pants.” Docket 32
¶¶ 111-13. Later, Augustine reported a numbness in his right foot and his foot
was cool to the touch but there were no signs/symptoms to believe an infection
was present. Id. ¶¶ 114-16. Augustine requested that his dressing be changed
only after he took his pain medication. Docket 27-59.
On February 9 and 10, 2020, he reported burning under the skin of his
knee and numbness of his foot. Docket 32 ¶¶ 121-126. Augustine described his
pain as an 8 out of 10 even while taking prescription pain medication, and an xray was ordered. Id. ¶¶ 127-28. A Wound Nurse Treatment Plan stated that the
new instruction was to place an “ABD pad covered with Kerlix and wrap[] with
[an] ace bandage . . . .” Docket 27-70. Augustine claims that he pressed his call
8

light and no one responded to him to bring his pain medication and this
amounted to a delay in his treatment. Docket 40-1 at 11.
In a February 10, 2020 meeting with Health Services, Augustine asserted
that he did not trust the care he was receiving and that he wanted to hear from
the surgeon about how his wound was doing. Docket 32 ¶¶ 130-31. A treatment
note was entered to schedule an appointment with a provider “regarding
concerns to patient’s right knee.” Docket 27-78. On February 11, 2020,
Augustine allegedly told Health Services that because his knee hurt badly, he
wanted to delay his dressing change but was later seen laughing and talking on
his Ipad. Docket 32 ¶¶ 132-36. The Encounter Notes filed by Nurse Katie
DeNeui on February 11, 2020, reported that Augustine’s dressings were
changed and that the “[o]uter open wound was [not] packed with 20 cm of
iodoform due to being out. More was ordered for second dressing change.
Patient educated of this and was okay with plan of care.” Docket 27-77. 3
An x-ray was ordered on February 12, 2020, and during the x-ray,
Augustine refused to extend his leg into proper positioning and the x-ray
showed an issue not previously seen but that it was “nonspecific.” Id. ¶¶ 14243; Docket 27-82. On February 13, 2020, Health Services called Dr. Krajca’s
nurse to schedule a follow-up, but the nurse reported that Dr. Krajca did not
need to see Augustine in the clinic but that he could be seen by a provider at

The court is unsure whether this note should have said that the wound was
not packed due to being out of iodoform. The Encounter Note supports that
because the Infirmary was out of iodoform the wound was not packed. See
Docket 27-77.
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3

SDSP. Id. ¶ 146. On the same day, an Encounter Note written by Nurse
Christine Scovill reported that Augustine’s dressing was changed but it did not
address whether Augustine’s wound was packed as ordered by the ED Doctor.
Docket 27-85. At the Tele-Health follow-up, the Infectious Disease Doctor, Dr.
Diaz, was concerned about the lack of resolution of Augustine’s infection and
the discharge from the wound. Docket 32 ¶¶ 147-48. Health Services ordered
Augustine to be transported to Avera McKennan Hospital. Id. ¶ 152. At the
hospital, a CT scan and blood cultures were ordered. Id. ¶¶ 157-58. The ED
Visit Notes state that Augustine reported to be in extreme pain, and that he had
lost 12 pounds since the infection started. Docket 27-90. On February 13, 2020,
Doctor Jabbour Bassel diagnosed Augustine to have a “[r]ight knee prepatellar
bursitis infection secondary to MRSA with overlying cellulitis.” Docket 27-91.
Doctor Asma S. Syed reported that:
[o]n discussion with orthopedics there was noticed to be a large
amount of packing present, which was causing significant
inflammation and had been in there for about 2 days. He is supposed
to get his packing changed twice a day, and everyday. And the
instructions were given to them during my visit with him.
Docket 27-92 (emphasis added). Orthopedic Surgery and Infectious Disease
Doctors determined that Augustine did not need an operation or additional
antibiotics. Docket 32 ¶¶ 159-60. Augustine was discharged with a regimen of
600 mg of ibuprofen every 6 hours. Id. ¶ 160. Dr. Carpenter did not agree with
the Hospital assessment that the packing had been in for two days prior to
coming to the hospital. Id. ¶¶ 161-162. In Dr. Carpenter’s “professional medical
judgement,” Augustine’s medical records “clearly suggest[] that he was feigning
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symptoms of pain and being ill” because he reported to be in pain but
individuals saw him being active (playing basketball etc). Id. ¶ 176
On February 22, 2020, Augustine was sent back to the ER when he
started experiencing abdominal pain. Docket 27-102 at 1. The Radiology Details
state that Augustine’s CT of his abdomen looked normal, and his lab work was
normal. Id. at 5. Doctor Peter W. Levasseur stated that “[t]he lack of any findings
whatsoever are concerning that these are factitious symptoms and possibly
drug-seeking behavior.” Id. at 5.
Orthopedic Surgeon, Dr. Krajca, saw Augustine on March 3, 2020, after
Augustine complained of heavy yellow/brown discharge, but Dr. Krajca reported
that the incision was healing well and was without drainage. Docket 32 ¶¶ 18081. Dr. Krajca also reported that there were no signs of infection and only mild
swelling. Id. ¶ 182. Augustine had a follow up appointment with an Infectious
Disease Specialist on March 4, 2020. Id. ¶ 188. The Specialist noted a small
amount of drainage, and activity and range of motion were normal. Id. ¶ 188.
Augustine was seen by Health Services on March 5-12, 2020. Id. ¶¶ 188-193,
199-208. Augustine started physical therapy on March 10, 2020, to work on
weight bearing and range of motion. Id. ¶¶ 194-195.
On March 26, 2020, Augustine was seen by a provider due to swelling and
discoloration, and an x-ray was ordered. Id. ¶ 210. The provider prescribed a
knee brace. Id. ¶ 212. Another x-ray was taken on March 30, 2020, and it
revealed no fractures, dislocations, or evidence of osteomyletis. Id. ¶ 213.
Augustine was seen walking without difficulty and running in a hallway. Id.
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¶ 214. Augustine complained about burning in his right knee, but assessments
showed normal range of motion and ability to walk. Id. ¶¶ 229-30. An x-ray
revealed no abnormalities. Id. ¶ 245.
B.

Legal Standard

Summary judgment is appropriate 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). The moving party can meet this
burden by presenting evidence that there is no dispute of material fact or by
showing 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). To avoid summary judgment, “[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) (internal quotation omitted). The underlying substantive law
identifies which facts are “material” for purposes of a motion for summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“Only disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
“[T]he mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the

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requirement is that there be no genuine issue of material fact.” Id. at 247-48
(emphasis omitted).
Essentially, the availability of summary judgment turns on whether a
proper jury question is presented: “The inquiry performed is the threshold
inquiry of determining whether there is the need for a trial—whether, in other
words, there are any genuine factual issues that properly can be resolved . . .
in favor of either party.” Id. at 250. Prisoners who proceed pro se are entitled to
the benefit of liberal construction at the pleading stage. Quam v. Minnehaha
Cty. Jail, 821 F.2d 522, 522 (8th Cir. 1987). Nonetheless, the summary
judgment standard set forth in Rule 56 of the Federal Rules of Civil Procedure
remains applicable to prisoners proceeding pro se. Id. The district court is not
required to “plumb the record in order to find a genuine issue of material fact.”
Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996).
Courts must remain sensitive, however, “to the special problems faced by
prisoners attempting to proceed pro se in vindicating their constitutional
rights, and [the Eighth Circuit does] not approve summary dismissal of such
pro se claims without regard for these special problems.” Nickens v. White, 622
F.2d 967, 971 (8th Cir. 1980). “[W]hen dealing with summary judgment
procedures technical rigor is inappropriate where . . . uninformed prisoners are
involved.” Ross v. Franzen, 777 F.2d 1216, 1219 (7th Cir. 1985).
C.

Legal Analysis

Defendants argue that they are entitled to qualified immunity because
their actions did not amount to constitutional violations. See Dockets 26, 27.
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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).
“Defendants readily acknowledge that Inmate Augustine has a ‘wellestablished right not to have known, objectively serious medical needs
disregarded.’ ” Docket 27 at 5 (quoting Fourte v. Faulkner Cnty., Ark., 746 F.3d
384, 387 (8th Cir. 2014)). Because defendants do not dispute that the
constitutional right was clearly established, this court will only address whether
Augustine has demonstrated that defendants’ alleged conduct amounted to a
constitutional violation.
To be successful on an Eighth Amendment claim, Augustine must
demonstrate: “(1) that [he] suffered objectively serious medical needs and (2)
that the prison officials actually knew of but deliberately disregarded those
needs.” Dulany v. Carnahan, 132 F.3d. 1234, 1239 (8th Cir. 1997) (internal
citations omitted). Medical needs must be serious and “[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.”
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Id. “In determining whether the inmate has an objectively serious medical need,
. . . the need or the deprivation alleged must be either obvious to the layperson or
supported by medical evidence, like a physician's diagnosis.” Roberson v.
Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999) (internal citations omitted and
italics in original). Defendants do not specifically contest that Augustine had a
serious medical need. See Docket 27 at 6.
To demonstrate deliberate indifference, “[t]he 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.” Jolly
v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting Estate of Rosenberg v.
Crandell, 56 F.3d 35, 37 (8th Cir. 1995)). “Deliberate indifference may be
manifested by prison doctors in responding to the prisoner’s needs or by prison
officials in intentionally denying or delaying access to medical care or
intentionally interfering with prescribed treatment.” Meloy v. Bachmeier, 302
F.3d 845, 849 (8th Cir. 2002) (citing Estelle v. Gamble, 429 U.S. 97, 104-05
(1976).
“A plaintiff can show deliberate indifference in the level of care” by: (1)
“showing grossly incompetent or inadequate care[;]” (2) “showing a defendant’s
decision to take an easier and less efficacious course of treatment[;]” or
“showing a defendant intentionally delayed or denied access to medical
care.” Allard v. Baldwin, 779 F.3d 768, 772 (8th Cir. 2015) (internal citations
omitted). “Medical care so inappropriate as to evidence intentional

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maltreatment or a refusal to provide essential care violates the [E]ighth
[A]mendment.” Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990).
For a delay in treatment claim, the court will measure the objective
seriousness of the alleged deprivation with reference to the effect of the delay.
Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997) (holding that there
was not a violation of the Eighth Amendment when inmate failed to submit
medical evidence to support that the delay in receiving sunglasses had an
adverse effect or caused further damage to his eye). In order to support a delay
in medical treatment claim the inmate “must place verifying medical evidence
in the record to establish the detrimental effect of delay in medical treatment to
succeed.” Id. (quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1188
(11th Cir. 1994)).
1.

Defendants Darin Young and Jessica Cook

Defendants argue that Chief Warden Darin Young and Facility Warden
Jessica Cook were not involved in the alleged violations. Docket 27 at 26. In an
individual capacity suit under § 1983, a plaintiff seeks to impose personal
liability on a state actor for actions taken under color of state law. Monell v.
Dep't of Social Servs., 436 U.S. 658, 690 n.55 (1978). Only state actors whose
personal conduct caused the deprivation of a federal right are liable under
§ 1983. Pulaski Cnty. Republican Comm. v. Pulaski Cnty. Bd. of Election
Comm'rs., 956 F.2d 172, 174 (8th Cir. 1992) (citing Kentucky v. Graham, 473
U.S. 159, 166 (1985)). A person must have been “personally involved or had
direct responsibility” in the alleged violation in order to establish liability under
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§ 1983. Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985). The record
does not include alleged facts about Young and Cook. See Dockets 32, 40.
Further, “a general responsibility for supervising the operations of a prison is
insufficient to establish the personal involvement required to support liability.”
Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995). Augustine has failed
to raise of genuine issue of material fact that Young and Cook were personally
involved in his alleged constitutional violations. Thus, Young and Cook are
entitled to summary judgment based on qualified immunity.
2.

Defendant Savannah Pitchford

Augustine claims that Pitchford denied and delayed his treatment. See
Dockets 40 ¶ 7, 40-1 at 2. On the evening of January 27, 2020, Pitchford was
the officer in charge when Augustine pushed his emergency call button. Docket
32 ¶¶ 31, 40. Augustine claimed that he could not move, and the pain had
spread to his groin and abdomen. Id. ¶ 31. After Augustine pushed the button,
Pitchford contacted Health Services and was advised that Augustine did not
need to be seen at that moment and that he could wait until the morning. Id.
¶ 41. Pitchford relied on what Health Services told her and believed it was not a
medical emergency. Id. ¶ 43. She informed Augustine he would have to wait
until the morning to be seen by medical staff. Id.
Augustine claims that the denial to be seen by Health Services after he
pushed the emergency call light was a “denial of treatment . . . [that] violated
his [Eighth] Amendment right[] to be free of cruel and unusual
punishment . . . .” Docket 40-1 at 2. Augustine claims Pitchford directly
17

participated in this alleged denial of medical treatment and that she had “every
opp[ortunity] to intervene as her rank of Captain gave her [the]power to have
him evaluated[,] yet she failed to act when the law required her to do so.” Id.
¶ 7.
Augustine must assert alleged facts that show Pitchford
“intentionally . . . denied access to medical care . . . .” Allard v. 779 F.3d at
772. Here, Pitchford relayed information from Health Services to Augustine.
Docket 32 ¶ 43. The record shows that Augustine had been receiving medical
care up to this point—cultures were taken for a lab test, he was given
medication and ointment for his injury, and his wound was dressed. Id. ¶¶ 13,
17-18, 21-22, 25. On January 27, 2020, Augustine was seen by Health
Services at 11:35 AM, 2:49 PM, and 8:41 PM. Dockets 27-5, 27-11, 27-13.
Augustine had already been seen three times that day. Dockets 27-5, 27-11,
27-13. It appears the issue is not that Augustine was denied medical care, but
that he was denied additional care that he believed was necessary.
In Plemmons v. Roberts, defendants were not entitled to qualified
immunity when they did not immediately call for medical assistance after the
inmate told them he had a history of heart attacks and was experiencing arm
pain, chest pain, nausea, and profuse sweating. 439 F.3d 818, 824 (8th Cir.
2006). Here, Pitchford promptly acted after Augustine pushed his emergency
call light and she contacted Health Services. Docket 32 ¶ 43. “Prison officials
lacking medical expertise are entitled to rely on the opinions of medical staff
regarding inmate diagnosis and the decision of whether to refer the inmate to
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outside doctors . . . .” Holden v. Hirner, 663 F.3d 336, 343 (8th Cir. 2011).
Further, a disagreement of treatment decisions does not amount to a
constitutional violation. Jolly, 205 F.3d at 1096. Because Pitchford relied on
the decision of Health Services, there is not a genuine issue of material fact
that Pitchford denied Augustine medical care.
Pitchford’s actions also do not amount to a delay in treatment because
Augustine has not placed medical evidence into the record to establish that the
delay of not being seen for the fourth time in one day established a “detrimental
effect” to his condition. See Crowley, 109 F.3d at 502. The cultures for the lab
were taken on January 25, 2020 (the day Augustine reported his injury to
Health Services), and the results came back on January 28, 2020 (the day after
Augustine pushed his emergency call button). Docket 32 ¶¶ 57-58. As soon as
the lab results came back, the treatment plan changed to treat the infection. Id.
¶ 61. On January 29, 2020, Augustine was sent to the Emergency Room when
his symptoms became worse. Id. ¶¶ 63, 66-67. Augustine has not established
that the delay of not being seen in the evening on the August 27, 2020, had a
detrimental effect on his condition. Pitchford relied on the medical expertise of
Health Services to not seek treatment the night of August 27, 2020. Id. ¶ 43.
Thus, Pitchford’s motion for summary judgment based on qualified immunity is
granted.
3.

Derrick Bieber

Augustine claims that Unit Manager Bieber denied him medical care.
Docket 40-1 at 8. On January 28, 2020, Augustine asked to be provided with a
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wheelchair. Docket 32 ¶¶ 49-49. Dr. Sultana denied his request and said that
Augustine would be fine on crutches. Id. ¶ 49. Augustine threw his crutches
down and walked out of the clinic. Docket 32 ¶ 50-51. Bieber spoke with
Augustine about the wheelchair and he called Health Services but was told that
Augustine was fine with crutches. Id. ¶¶ 52-53. Bieber’s reliance on the answer
from Health Services does not constitute a denial of medical treatment. See
Holden, 663 F.3d at 343. Bieber, without medical expertise, was merely
inquiring and relaying the information to Augustine. Thus, Bieber is entitled to
summary judgment based on qualified immunity.
4.

Jessica Schreurs

Defendants assert that Schreurs was not personally involved in the
alleged constitutional violations. Docket 27 at 26. Augustine claims that
Schreurs was personally involved in using expired iodoform strips to pack his
wound and is responsible for the Nursing Staffs’ actions. See Docket 41-8. The
Eighth Circuit has found that under § 1983:
A supervisor cannot be held liable for an employee's
unconstitutional actions based on a theory of respondeat superior.
Rather, a supervisor incurs liability for a violation of a federally
protected right when the supervisor is personally involved in the
violation or when the supervisor's corrective inaction constitutes
deliberate indifference toward the violation. The supervisor must
know about the conduct and facilitate it, approve it, condone it, or
turn a blind eye for fear of what [he or she] might see.
Ottman v. City of Independence, Mo., 341 F.3d 751, 761 (8th Cir. 2003)
(alteration in original) (citation and internal quotations omitted). “[A] supervisor
can act with ‘deliberate, reckless indifference’ even when he does not act
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‘knowingly.’ ” Kahle v. Leonard, 477 F.3d 544, 551-52 (8th Cir. 2007) (quoting
Farmer, 511 U.S. at 842).
The court must establish whether there is a genuine issue of material
fact that an Eighth Amendment violation occurred because a supervisor is only
liable when they were “involved in the violation . . . .” Ottman, 341 F.3d at 761.
Because Schreurs is the Director of Nursing, the court will confine its analysis
to the alleged actions of Nursing Staff and the allegations against Schreurs
personally. A plaintiff can show deliberate indifference by “showing a
defendant’s decision to take an easier and less efficacious course of treatment
. . . . ” Allard, 779 F.3d at 772. Dr. Krajca ordered that Augustine’s discharge
plan of care include:
[t]wice daily dressing changes to the right knee. Iodoform half-inch
gauze packing followed by dry dressings and an Ace wrap. The more
superior incision should have the gauze pack laterally and the more
inferior incision gauze packed medially. Remove the packing prior to
showering in the morning, replace packing and dressings after
showering.
Docket 27-146 at 2. Health Services’ treatment order followed the Hospital
discharge plan. See Docket 27-7. Augustine claims that on February 2-8, 2020,
Schreurs and Health Services’ nurses used expired iodoform strips to pack his
wounds. Docket 40-1 at 11. In the Encounter Notes from February 11, 2020,
Nurse Katie DeNeui reported that Augustine’s dressings were changed and that
the “[o]uter open wound was [not] packed with 20cm of Iodoform due to being
out. More was ordered for second dressing change. Patient educated of this and
was okay with plan of care.” Docket 27-77.
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On February 13, 2020, an Encounter Note written by Nurse Christine
Scovill reported that Augustine’s dressing was changed but the report does not
indicate that the wound was packed. Docket 27-85. Further, when Augustine
was seen in the ED for the second time, Doctor Asma S. Syed reported that:
[o]n discussion with orthopedics there was noticed to be a large
amount of packing present, which was causing significant
inflammation and had been in there for about 2 days. He is supposed
to get his packing changed twice a day, and everyday. And the
instructions were given to them during my visit with him.
Docket 27-92 (emphasis added). At this time, there is genuine issue of material
fact as to whether Nursing Staff were deliberately indifferent to Augustine’s
serious medical need by choosing a less efficacious treatment route—by
allegedly using expired iodoform packing strips, by not packing the wound as
required, and by not removing old packing in the wound that caused severe
inflammation. Dockets 27-77, 27-85, 27-92. 4 Augustine has raised a genuine
issue of material fact about whether Schruers, as the Director of Nursing, knew
about this conduct, approved it, condoned it, or turned a blind eye from the
conduct. See Ottman, 341 F.3d at 761. Thus, Schruers is not entitled to
summary judgment based on qualified immunity. If defendants or Augustine
move for summary judgment at a later date, Augustine must present evidence
of Schruers personal involvement and/or evidence that she condoned the
actions, helped facilitate the actions, or approved the actions.

Augustine did not sue a particular nurse on the nursing staff. He has access
to nurses’ names on the encounter or treatment notes.
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4

II.

Motion for a Protective Order
Defendants move for a protective order asking that discovery be stayed

until the resolution of their motion for summary judgment. Docket 35. Because
this court has ruled on their motion for summary judgment, their motion for a
protective order (Docket 35) is denied as moot.
Thus, it is ORDERED:
1. That Defendants’ motions for summary judgment (Docket 26) is granted
in part and denied in part. Defendants Darin Young, Jessica Cook,
Savannah Pitchford, and Derrick Bieber are entitled to summary
judgment based on qualified immunity. Defendant Jessica Schreurs’s
motion for summary judgment based on qualified immunity is denied.
2. That Defendants’ motion for a protective order (Docket 35) is denied as
moot.
Dated: June 14, 2021
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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