Roberts v. United States of America et al

Filing 64

ORDER on Motions. Signed by U.S. District Judge Camela C. Theeler on 03/12/2025. (RMM)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
TIMOTHY MUNRO ROBERTS,

4:23-CV-04116-CCT

Plaintiff,
ORDER
vs.
UNITED STATES OF AMERICA;
COLLETTE PETERS, BOP Director;
YANKTON FPC WARDEN; DR. ROCK
BOYD, Jointly and Individually;
NAPHCARE, Jointly and Individually;
and ESTILL FPC, WARDEN,
Defendants.

TIMOTHY MUNRO ROBERTS,

4:23-CV-04166-CCT

Plaintiff,
vs.
UNITED STATES OF AMERICA; BOP
DIRECTOR COLLETTE PETERS;
YANKTON FPC, WARDEN; DR. ROCK
BOYD, Jointly and Individually;
NAPHCARE, Jointly and Individually;
and ESTILL, FPC, WARDEN,
Defendants.

Timothy Munro Roberts commenced two nearly identical lawsuits under
28 U.S.C. § 1331 and Bivens v. Six Unknown Federal Narcotics Agents, 403
1

U.S. 388 (1971). 4:23-CV-04116-CCT Docket 1; 4:23-CV-04166-CCT Docket 1.
The Court consolidated the cases, and 4:23-CV-04116-CCT is the lead case.
Docket 8. Mr. Roberts’s case was screened pursuant to § 1915, and his claims
against the United States and against Collette Peters, Yankton FPC Warden,
and Estill FPC Warden in their official capacities were dismissed under 28
U.S.C. § 1915(e)(2)(B)(i-ii). Docket 9. His claims against NaphCare were
dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii). Id. Only his
Eighth Amendment Bivens and state-law medical malpractice claims against
Dr. Rock Boyd survived screening. Id.
Dr. Rock Boyd answered, Docket 29, and filed the current motion,
Docket 45, seeking summary judgment pursuant to Federal Rule of Civil
Procedure 56 on Mr. Roberts’s individual-capacity Bivens claim for deliberate
indifference to medical needs and dismissal of Mr. Roberts’s state-law medical
malpractice claim pursuant to Rule 12(h)(3). Mr. Roberts objects. Dockets 57,
60.
On December 16, 2024, Mr. Roberts filed a motion to voluntarily dismiss
his lawsuit without prejudice. Docket 62. He claimed that “the purpose of filing
this action was never solely to achieve legal victory[;]” rather, he filed suit
primarily “to bring attention to the systemic issues and failures in the Bureau
of Prisons (BOP) healthcare system and to alert the Office of Inspector General
and executive leadership to these serious matters.” Id. at 1–2. He claimed he
achieved the intended outcome of raising such awareness. Id. at 2. He then
noted “the practical challenges of pursuing a lawsuit against the federal
2

government and its employees” with “the limited chances of success due to
sovereign immunity and other legal hurdles.” Id. He therefore requested the
Court enter an order dismissing and terminating the case. Id.
Dr. Boyd did not file a response. On January 14, 2025, this Court issued
an order denying Mr. Roberts’s motion to voluntarily dismiss his lawsuit
because Mr. Roberts did not obtain a stipulation signed by counsel for Dr.
Boyd as required by Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Docket 63.
There being no subsequent joint motion to dismiss this matter, the Court now
rules on the merits of Dr. Boyd’s motion for summary judgment and motion to
dismiss. Docket 45.
BACKGROUND
Mr. Roberts was convicted of wire fraud in violation of 18 U.S.C. § 1343,
and in either June 2017 or 2018, the United States District Court for the
Middle District of Florida sentenced him to an 80-month prison term followed
by 3 years of supervised release. Docket 47 ¶ 1; Docket 1-1 at 1. He was
incarcerated at Federal Correctional Institute Estill (FCI Estill), and
approximately a year after his arrival, he “experienced a severe incident while
working out. [He] heard a loud bone break and felt intense pain in [his]
sternum.” Docket 1-1 at 1. An x-ray revealed that a prior injury did not heal
properly. Id. He “was given cortisone injections and prescribed sulindac to
address inflammation, with the advice to continue working out to strengthen
the muscles.” Id. “Despite following this advice, [he] continued to suffer severe

3

pain in [his] sternum, arm, back, spine, and shoulder blade.” Id. at 2. He
claims that he sought further care but was denied treatment. Id.
Mr. Roberts was transferred to the Yankton Federal Prison Camp
(Yankton FPC) on February 26, 2020. Docket 47 ¶ 2; Docket 1-1 at 2. Dr. Boyd
was the Clinical Director at the time of Mr. Roberts’s arrival. Docket 47 ¶ 3.
According to Dr. Boyd, “[a]ll inmate transfers are subject to an initial medical
screening by a mid-level medical professional where they are assessed for any
acute medical or infectious conditions.” Docket 53 at 2; see also Docket 47
¶¶ 4, 5. Dr. Boyd claims that he is notified if any issues are identified, and as it
relates to Mr. Roberts, Dr. Boyd was not notified of any “acute medical
conditions[.]” Docket 53 at 2.
Dr. Boyd’s first medical examination of Mr. Robert occurred on May 5,
2020. Id. at 2; Docket 47 ¶ 9; Docket 1-1. Dr. Boyd claims Mr. Roberts
complained mostly about right shoulder pain during the visit. Docket 53 at 2.
Although not in refence to a specific time frame, Mr. Roberts asserts that Dr.
Boyd “dismissed [his] concerns, claiming [he] had mental problems and that
nothing was wrong.” Docket 1-1 at 2. Mr. Roberts also claims that “[d]espite
persistent pleas for treatment, [Dr. Boyd] physically assaulted [him], jerking
[his] injured arm and shoulder and threatening [him] with a shot if [he]
persisted.” Id.
According to Mr. Roberts, it was only after a year of complaints that “Dr.
Boyd finally ordered an X-ray[.]” Id. He contends that during the x-ray, the
technician said that his “shoulder’s position was severely out of place,
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indicating major issues.” Id. But, according to Mr. Roberts, Dr. Boyd
“continued to refuse [his] requests for an MRI and all forms of treatment.” Id.
He also contends that when he asked for a copy of the x-ray, Dr. Boyd
“instructed the technician not to save it, only allowing it to be viewed onscreen.” Id. Finally, he alleges that “the warden and assistant warden fired the
records keeper in medical and personally shredded two truckloads of all
medical records.” Id.
Mr. Roberts was released from prison in 2022. Id. He claims that he
thereafter “qualified for Medicaid and immediately sought medical attention to
confirm that [he] wasn’t imagining the pain.” Id. He refers to what he calls
“[t]he current doctor’s summary” and claims it reveals he “requir[es] spine
surgery on c4-c7, labrum repair, cutting of the collarbone, and inserting a 4”
cadaver bone with an 8” titanium plate.” Id. at 3. He also contends he has
meeting scheduled with a neurosurgeon “to address nerve damage in [his]
head.” Id. In a supplemental filing, Mr. Roberts alleges that due to the violation
of his “civil rights and den[ial of][ medical treatment, making [him] lug 150lb
bags around, work, not give [him an] extra pillow pass and much more[,]” he
will need surgery to repair his C3, C4, and C5 near his neck; a shoulder
surgery four months after the first surgery; and another surgery to fuse C6–C7
four months after the second surgery. Docket 5 at 1. In a second supplemental
filing, Mr. Roberts claims that he had the first surgery, but a spinal fluid leak
occurred, and various complications have resulted. Docket 6 at 1. He also

5

asserts he was “unfairly denied treatment” for additional medical needs—
including a hernia and bladder restriction. Id.
According to Mr. Roberts, Dr. Boyd’s actions and inactions have caused
him to “suffer from a loss of mobility” and he “endur[es] constant pain and
immense suffering.” Docket 1-1 at 3. He requests $6,000,000 for “fair and just
compensation for the violation of [his] civil rights, medical malpractice,
negligence, and physical and mental torture.” Docket 1 at 3–4.
Dr. Boyd filed an answer denying Mr. Roberts’s allegations and asserting
the affirmative defense of qualified immunity. Docket 29. Mr. Roberts filed a
motion to compel the disclosure of certain information, Docket 35, which was
denied in part because discovery is improper until Dr. Boyd’s defense of
qualified immunity is resolved, Docket 40. Mr. Roberts filed a second motion to
compel, Docket 41, which was also denied because the discovery request
related to defendants dismissed during screening, Docket 42.
On September 23, 2024, Dr. Boyd filed this motion for summary
judgment on Mr. Roberts’s Bivens claim and motion to dismiss for lack of
subject matter jurisdiction Mr. Roberts’s state-law medical malpractice claim.
Docket 45. Dr. Boyd filed a statement of undisputed material facts, personal
declaration, and the declaration of Jarad Herbig. Dockets 47, 48, 49. Mr.
Roberts filed oppositions to Dr. Boyd’s motion, Dockets 57, 60, but he did not
file a response to Dr. Boyd’s statement of undisputed material facts.
Mr. Roberts filed a third motion to compel, requesting the Court order
Dr. Boyd to provide more complete answers to Mr. Roberts’s first set of
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interrogatories. Docket 58. He also filed a motion to provide supplemental
information in support of his claims. Docket 61. Dr. Boyd did not respond to
these filings.
DISCUSSION
1. Motion for Summary Judgment
Dr. Boyd asserts that Mr. Roberts has not presented sufficient facts to
support a deliberate indifference claim because he has not shown a serious
medical need or injury that was so obvious that a layperson would know Mr.
Roberts needed treatment and has not shown “that Dr. Boyd knew of a specific
serious medical need and deliberately disregarded the need.” Docket 53 at 10.
Relatedly, Dr. Boyd contends that he is entitled to qualified immunity as a
matter of law because Mr. Roberts’s “complaint fails to provide facts sufficient
to establish a violation of a constitutional right[.]” Id. at 7. For these reasons,
Dr. Boyd requests summary judgment on Mr. Roberts’s Eighth Amendment
deliberate indifference claim. Id. at 12.
In response, Mr. Roberts argues that there are material issues of fact in
dispute on the question whether Dr. Boyd acted with deliberate indifference to
his medical needs in violation of the Eighth Amendment. Docket 57, 60. In
support, he directs this Court to the claims asserted in his verified complaint
and subsequent filings. Id.; Dockets 1, 5, 6, 20, 25, 31, and 36.

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a. Legal Standards
i.

Summary Judgment

Under Federal Rule of Civil Procedure 56(a), summary judgment is
proper 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). “The moving party can meet this burden by presenting
evidence that there is no genuine 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.” Finneman v. United States
Dep’t of Ag., 5:23-CV-05034-KES, 2024 WL 5158473, at *4 (D.S.D. Dec. 17,
2024) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)). The Court
views the evidence and reasonable inferences therefrom in a light most
favorable to the nonmoving party. Id. at *5.
However, “[t]o avoid summary judgment, the 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.” Id. (cleaned
up). Here, Mr. Roberts’s complaint is verified. Docket 1 at 4. Therefore,
although the 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), it will consider any specific, non-conclusory facts alleged
in this document, Roberson v. Hayti Police Dep’t, 241 F.3d 992, 995 (8th Cir.
2001) (“[T]he facts alleged in a verified complaint need not be repeated in a
responsive affidavit in order to survive a summary judgment motion.”).
8

However, under the District of South Dakota’s Civil Local Rules of
Practice, the party opposing “summary judgment must respond to each
numbered paragraph in the moving party’s statement of material facts with a
separately numbered response and appropriate citations to the record.” D.S.D.
Civ. LR 56.1.B. The party “must identify any material facts on which there
exists a genuine material issue to be tried.” Id.
Importantly, “[a]ll 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.”
D.S.D. Civ. LR 56.1.D; see also Fed. R. Civ. P. 56(e)(2) (providing that the court
can consider a fact undisputed when a party “fails to properly address another
party’s assertion of fact as required by Rule 56(c)”). Pro se litigants are not
exempt from these rules. Bunch v. Univ. of Ark. Bd. of Trs., 863 F.3d 1062,
1067 (8th Cir. 2017) (providing that the plaintiff’s “status as a pro se litigant
did not excuse her from following the local rules”).
While Mr. Roberts filed pleadings opposing Dr. Boyd’s motion for
summary judgment, Dockets 57, 60, Mr. Roberts did not respond to Dr. Boyd’s
statement of undisputed material facts with separately numbered paragraphs
and appropriate citations to the record. He also did not resist Dr. Boyd’s
motion for summary judgment by citing materials in the record, such as
depositions, documents, affidavits, declarations, or interrogatory answers. See
Fed. R. Civ. P. 56(c)(1)(A). Rather, he cites various motions or other pleadings
he filed in the case, which contain unsupported allegations. Therefore, the
9

Court deems admitted the facts set forth in Dr. Boyd’s statement of undisputed
material facts. See Joe v. Walgreens Co/ILL, No. CIV 09-4144-RAL, 2010 WL
2595270, at *1 (D.S.D. June 23, 2010) (deeming defendants’ statement of
undisputed material facts admitted because pro se nonmoving party did not
submit a statement of material facts or directly respond to defendants’
statement of material facts).
ii.

Qualified Immunity

“Qualified immunity shields public officials from liability for civil
damages if their conduct did not ‘violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Dillard
v. O'Kelley, 961 F.3d 1048, 1052 (8th Cir. 2020) (citation omitted). “To decide
whether an official is entitled to qualified immunity, we conduct a two-step
inquiry: (1) whether the facts, viewed in the light most favorable to the plaintiff,
demonstrate a constitutional or statutory deprivation; and (2) whether the right
was clearly established at the time.” Nieters v. Holtan, 83 F.4th 1099, 1105 (8th
Cir. 2023) (quoting Webster v. Westlake, 41 F.4th 1004, 1009–10 (8th Cir.
2022)). The court may consider the elements in any order, and if either is not
met, then the official is entitled to qualified immunity. Pearson v. Callahan, 555
U.S. 223, 236 (2009) (providing that courts may “exercise their sound
discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the
particular case at hand”).

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b. Mr. Roberts’s Eighth Amendment Bivens Claim for Deliberate
Indifference
Mr. Roberts alleges Dr. Boyd’s deliberate indifference to his serious
medical need violated his Eighth Amendment right to be free from cruel and
unusual punishment. Docket 1. “[D]eliberate 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 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.
Rather, a 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.” Dulany v. Carnahan, 132 F.3d 1234,
1239 (8th Cir. 1997) (citation omitted). Under this standard:
[The medical need] must be “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.” Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011)
(citation omitted). And subjectively, a prison official must have
“actually kn[own about], but deliberately disregarded” the
need, Dulany, 132 F.3d at 1239, which is a mental state
comparable to criminal recklessness, see Leonard v. St. Charles
Cnty. Police Dep’t, 59 F.4th 355, 360 (8th Cir. 2023).
Beard v. Falkenrath, 97 F.4th 1109, 1118 (8th Cir. 2024) (second alteration in
original).

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Importantly, “a complaint that a physician has been negligent in
diagnosing or treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106.
Rather, “a prisoner must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.” Id. When reviewing
whether the defendant deliberately disregarded a serious medical need, a court
considers the defendant’s “actions in light of the information he possessed at
the time, the practical limitations of his position and alternative courses of
action that would have been apparent to an official in that position.” Letterman
v. Does, 789 F.3d 856, 862 (8th Cir. 2015) (quoting Gregoire v. Class, 236 F.3d
413, 419 (8th Cir. 2000)). The question is not answered “with hindsight’s
perfect vision.” Id. (quoting Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir.
1998)).
Reviewing the evidence here, the Court does not doubt that Mr. Roberts
suffered from ongoing pain in his shoulder and from other ailments for many
years, including while he was incarcerated at Yankton FCP. However, there are
multiple problems with Mr. Roberts’s deliberate indifference claim against Dr.
Boyd. First, Mr. Roberts’s complaint and supplemental filings contain
allegations regarding medical care, or the lack thereof, during his incarceration
at FCI Estill, Dockets 1, 36, but Dr. Boyd had no contact with Mr. Roberts
while he was incarcerated at FCI Estill. Therefore, Mr. Roberts’s claims in that
regard are not relevant to the question whether Dr. Boyd was deliberately
indifferent to a serious medical need of Mr. Roberts.
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Second, Mr. Roberts’s Bivens claim against Dr. Boyd falls outside the
three contexts in which the Supreme Court has recognized Bivens as a remedy.
Those three contexts include an implied cause of action under the Fourth
Amendment against federal officers based on an alleged warrantless search and
seizure, Bivens, 403 U.S. at 389, 397, a Fifth Amendment claim for gender
discrimination against a congressman for firing his female secretary, Davis v.
Passman, 442 U.S. 228, 248–49 (1979), and an Eighth Amendment claim
against federal prison officials for failure to treat an inmate’s serious medical
need that resulted in the inmate’s death, Carlson v. Green, 446 U.S. 14, 24
(1980). See Ziglar v. Abbasi, 582 U.S. 120, 131 (2017) (recognizing that “[t]hese
three cases––Bivens, Davis, and Carlson––represent the only instances in
which the Court has approved of an implied damages remedy under the
Constitution itself”).
Third, even if Bivens does apply, Mr. Roberts has not demonstrated that
he objectively suffered a serious medical need at Yankton FPC. While Mr.
Roberts makes bare assertions that Dr. Boyd assaulted him and ordered the
destruction of medical records, the crux of his deliberate indifference claim
relates to his belief that Dr. Boyd delayed necessary treatment. Indeed, in his
view, the medical records documenting the treatment he received after his
release prove that Dr. Boyd was deliberately indifferent to his serious medical
needs. But nothing in these records evinces that surgery or other treatment
was immediately necessary or that the alleged delay in treatment caused him
harm or changed the prognosis. See Hancock v. Arnott, 39 F.4th 482, 487–88
13

(8th Cir. 2022) (concluding that the plaintiff failed to establish a serious
medical need because medical evidence did not show that delay caused harm
or that injury required immediate surgery); Holden v. Hirner, 663 F.3d 336,
342–43 (8th Cir. 2011) (providing that “[a] prisoner alleging a delay in
treatment must present verifying medical evidence that the prison officials
‘ignored an acute or escalating situation or that [these] delays adversely
affected his prognosis’” (quoting Reece v. Groose, 60 F.3d 487, 491 (8th Cir.
1995)).
Fourth, and last, assuming that Mr. Roberts presented sufficient facts to
show a serious medical need, he nevertheless has not demonstrated a genuine
issue of material fact that Dr. Boyd deliberately disregarded a serious medical
need of Mr. Roberts.1 See Dulany, 132 F.3d at 1240 (noting the plaintiffs’
failure “to refute the medical records presented by the defendants
demonstrating that care had been provided”). When Mr. Roberts arrived at
Yankton FCP in February 2020, he did not exhibit “signs of distress or
emergency medical issues[.]” Docket 47 ¶ 6. And while he requested an extra
pillow in a March 11, 2020 email to Dr. Boyd because of “constant pain [] from
[his] prior injury of [his] rotator cuff and broken upper clavicle[,]” Docket 48-1,

1 Mr. Roberts alleges in his verified complaint that Dr. Boyd physically assaulted him

during a May 5, 2020 examination, ordered the destruction of medical records, and
threatened him and told him that his issues were simply mental. Docket 1-1 at 2.
However, he did not substantiate these allegations “with sufficient probative evidence
that would permit a finding in the plaintiff’s favor.” Davidson & Assocs. v. Jung, 422
F.3d 630, 638 (8th Cir. 2005) (citation omitted). Therefore, these allegations are
insufficient to defeat summary judgment. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir.
2007) (providing that allegations must be supported “on more than mere speculation,
conjecture, or fantasy”).

14

Dr. Boyd’s denial of that request was based on his independent medical
judgment. Therefore, such denial does not show a deliberate disregard for a
serious medical need. Dulany, 132 F.3d at 1240 (“a prison doctor remains free
to exercise his or her independent professional judgment” (citing Long v. Nix, 86
F.3d 761, 765 (8th Cir. 1996)).
Moreover, a review of the record reveals that when Mr. Roberts did
request medical care for his shoulder, Dr. Boyd met in person with him
multiple times, considered his complaints, conducted physical examinations,
ordered an x-ray, prescribed physical therapy exercise and medication, and
added him to the orthopedic chorionic care list. See generally Docket 47. Dr.
Boyd first met with Mr. Roberts on May 5, 2020. Docket 47 ¶ 9, Docket 48-2.
During the physical examination of Mr. Roberts’s shoulder, Dr. Boyd “found
that his shoulder was intact with no decrease in strength compared to the left
shoulder.” Docket 47 ¶ 11. Dr. Boyd “prescribed daily physical therapy of
shoulder-strengthening exercises,” gave him a handout of those exercises, “and
recommended over-the-counter medication to manage his pain.” Id. ¶ 12. Dr.
Boyd advised Mr. Roberts that his pain resolution “would be gradual and would
take a minimum of 6–8 months of targeted rehabilitation.” Id. ¶ 13. Dr. Boyd
also ordered that Mr. Roberts undergo an x-ray of his right shoulder. Id. ¶ 14.
On September 1, 2020, an x-ray was taken of Mr. Roberts’s right shoulder, and
it showed no fractures, no joint misalignment, and no change from a right
shoulder x-ray in August 2019. Id. ¶ 16.

15

Dr. Boyd met with Mr. Roberts again on September 22, 2020, for a
“recheck of his right shoulder.” Id. ¶ 17; Docket 48-4. Dr. Boyd asked Mr.
Roberts about the rehabilitation exercises prescribed during the May 2020
visit, and Mr. Roberts told Dr. Boyd that he “quit doing the prescribed exercises
because they caused the implant in his jaw to hurt.” Docket 47 ¶ 18; Docket
48-4. Dr. Boyd conducted another physical examination, assessing Mr.
Roberts’s range of motion. Docket 47 ¶ 19. He also conducted a Neer’s test for
impingement. Id. ¶ 20. The Neer’s test showed that the right shoulder was
positive for impingement, and the physical examination revealed Mr. Roberts
had “some atrophy in the right shoulder compared to the left” and that he “had
mild discomfort with some maneuvers, but no evidence of weakness or
asymmetry[.]” Id. ¶¶ 19, 20. Dr. Boyd diagnosed him with tendonitis of the
rotator cuff. Id. ¶ 22. He did not believe Mr. Roberts needed surgery; rather, he
determined that rehabilitation would be the proper treatment under the
circumstances, and he advised Mr. Roberts of this plan. Id. ¶ 21.
The day after Mr. Roberts’s September 22, 2020 medical visit, Dr. Boyd
reviewed Mr. Roberts’s internal medical chart and outside medical records. Id.
¶ 23. The outside medical records revealed that Mr. Roberts had been
diagnosed with bipolar disorder. Id. ¶ 24. The internal records revealed that
Mr. Roberts made over 30 requests to the Yankton FPC Health Services
Department in three months. Id. ¶ 25. Those requests included complaints
about his dental implants, shoulder, and neck. Id. In regard to his dental
implants, the internal records contained an oral surgeon’s note that Mr.
16

Roberts’s gums were healthy, and no action was advised for the implant. Id. Dr.
Boyd determined based on Mr. Roberts’s commissary purchases, he was
consuming approximately 1.5 tablets of ibuprofen daily. Id. After reviewing
these records and based on Mr. Roberts’s behavior, Dr. Boyd requested a
psychiatric consult. Id. ¶ 26.
Dr. Boyd did not see Mr. Roberts again until March 19, 2021, although
Mr. Roberts was seen by other mid-level providers. Docket 48 ¶ 10; Docket 47
¶ 27. During the March 19 appointment, Mr. Roberts complained “of pain on
the right side of his face that ran down to his neck, shoulder, and hip.” Docket
47 ¶ 27. Mr. Roberts told Dr. Boyd that his right shoulder hurts all the time
and that “he does not do the rehabilitative exercises because they are painful.”
Id. ¶ 28. Dr. Boyd sensed that Mr. Roberts was agitated; Mr. Roberts said that
nothing was being done for him. Id. ¶ 29. He was also argumentative at times.
Id. ¶ 31. However, according to Dr. Boyd, Mr. Roberts “calmed down and was
respectful by the end of the examination.” Id.
“Dr. Boyd noted that even though [Mr.] Roberts stated that he was taking
6–8 ibuprofen each day, his commissary purchases show that he has not made
any pain reliever purchases in the last six months.” Id. ¶ 30. He also noted his
concern about Mr. Roberts’s mental health because his “agitation and some of
his symptoms, which are not physically likely, seem to be amplified by his
mood.” Id. ¶ 33. Ultimately, “Dr. Boyd prescribed sulindac for pain control and
added [Mr.] Roberts to the orthopedic care list for the pain in his face, neck,
and shoulder.” Id. ¶ 32.
17

Mr. Roberts was seen again by Dr. Boyd on April 7, 2021, this time for
anxiety and poor sleep. Id. ¶ 34. Mr. Roberts requested Zoloft, and after Dr.
Boyd discussed the side effects with him, especially because of Mr. Roberts’s
history of bipolar disorder, Dr. Boyd prescribed Zoloft. Id. ¶¶ 36–37.
Approximately two weeks later, Dr. Boyd saw Mr. Roberts because he was
having trouble sleeping and the Zoloft was “making him ‘cloudy headed.’” Id.
¶ 39. He reported to Dr. Boyd that he was taking half of his tablet two times a
day and that it helped his anxiety and that his neck pain decreased. Id. ¶ 40.
On April 27, 2021, Dr. Boyd saw Mr. Roberts for a follow-up visit
regarding his use of Zoloft. Id. ¶ 42. Mr. Roberts relayed that he was still
splitting his medication. Id. ¶ 44. He also stated that although “he still gets
racing thoughts[,]” the medicine helped and his neck and shoulder have
improved. Id. ¶ 43. Dr. Boyd decided to maintain the current medication
dosage and informed Mr. Roberts that he could send a request to increase the
dosage if he continued to improve after five to six weeks but did not feel a full
response. Id. ¶ 46. According to Dr. Boyd, Mr. Roberts agreed with this plan.
Id. ¶ 47. Dr. Boyd did receive a request to increase Mr. Roberts’s dosage on
May 11, 2021, and after reviewing Mr. Roberts’s medical records, Dr. Boyd
increased the dosage. Id. ¶¶ 48–49. Dr. Boyd retired in May 2021, and, thus,
did not provide Mr. Roberts any further care. Id. ¶ 50.
There is nothing in the records cited above that suggests that Dr. Boyd’s
treatment of Mr. Roberts was “so inappropriate as to evidence intentional
maltreatment or a refusal to provide essential care.” Dulany, 132 F.3d at 1240–
18

41. Moreover, Mr. Roberts’s personal feeling that he did not receive adequate
treatment is not enough to create an issue of fact in dispute. Id. at 1240.
Indeed, “[p]risoners do not have a constitutional right to any particular type of
treatment.” Long, 86 F.3d at 765; Langford v. Norris, 614 F.3d 445, 460 (8th
Cir. 2010) (“[M]ere disagreement with treatment decisions does not rise to the
level of a constitutional violation.”). Also, although Mr. Roberts has since
undergone medical treatment, including surgery, after being released from
incarceration, more extensive treatment by a private health-care provider does
not mean Dr. Boyd was deliberately indifferent to Mr. Roberts’s medical needs.
See Logan v. Clarke, 119 F.3d 647, 650 (8th Cir. 1997) (concluding that the
defendants’ efforts “while perhaps not as extensive as those a private healthcare provider might have taken, did not reflect deliberate indifference to [the
plaintiff’s] medical needs”). This Court thus concludes that summary judgment
is proper because even if Bivens were to apply, Mr. Roberts has failed to state
an Eighth Amendment claim for deliberate indifference, and as such, Dr. Boyd
would be entitled to qualified immunity.
2. Motion to Dismiss
Dr. Boyd argues that Mr. Roberts’s state-law medical malpractice claim
must be dismissed for lack of subject matter jurisdiction because the United
States was dismissed as a party in the Court’s screening order and because Dr.
Boyd was, at all times relevant to Mr. Roberts’s claims, acting within the scope
of his employment as the Clinical Director at Yankton FPC. Docket 53 at 12–
13. Dr. Boyd notes that the Federal Tort Claims Act (FTCA) is the exclusive
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remedy for personal injuries caused by a negligent act or omission of a
government employee acting within the scope of employment. Id. at 13. He
further notes that a cognizable claim under the FTCA must be brought against
the United States. Id.
While Mr. Roberts’s supplemental filings refer to the FTCA, Dockets 31,
36, 57, 60, 61, his complaint does not allege a FTCA claim, Docket 1, and he
did not indicate in his supplemental filings whether he intended to amend his
complaint. Mr. Roberts also did not seek leave to amend his complaint to assert
an FTCA claim against Dr. Boyd. Rodgers v. City of Des Moines, 435 F.3d 904,
910 (8th Cir. 2006) (affirming district court’s refusal to consider allegations not
pled in the complaint when plaintiff never sought leave to amend her
complaint). Importantly, a plaintiff cannot amend a complaint in response to a
defendant’s motion for summary judgment. N. States Power Co. v. Fed. Transit
Admin., 358 F.3d 1050, 1057 (8th Cir. 2004) (explaining that parties are not
entitle “to manufacture claims, which were not pled, late into the litigation for
the purpose of avoiding summary judgment”).
However, even if the Court considers Mr. Roberts’s supplemental filings,
a tort claim against Dr. Boyd under the FTCA would not withstand dismissal.
Claims under the FTCA must be brought against the United States itself, not
its officials. F.D.I.C. v. Meyer, 510 U.S. 471, 476 (1994). More significantly, Mr.
Roberts admits that he filed his current suit without first presenting the claim
to the appropriate federal agency, the Bureau of Prisons. Docket 31 at 3. The
Eighth Circuit has “long held that compliance with § 2675(a)’s presentment
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requirement is a jurisdictional precondition to filing an FTCA suit in federal
district court.” Mader v. United States, 654 F.3d 794, 805 (8th Cir. 2011).
When, as here, there is no compliance with § 2657(a), there is no waiver of
sovereign immunity, and the matter must be dismissed for lack of subject
matter jurisdiction. Id. at 808; see Eagle v. United States, 5:22-CV-05083-RAL,
2023 WL 5978034, at *6 (D.S.D. Sept. 14, 2023) (“The FTCA waives sovereign
immunity, but only if a plaintiff satisfies the procedural requirements of 28
U.S.C. § 2675(a) by presenting the claim to the proper federal agency.”).
3. Miscellaneous Motions
Dr. Boyd filed a motion to stay discovery, Docket 50. Mr. Roberts
opposed the motion. Docket 56. However, in light of the above rulings, this
motion is now moot.
Mr. Roberts filed a motion to compel Dr. Boyd “to provide complete and
non-evasive answers to” Mr. Roberts’s first set of interrogatories. Docket 58 at
3. Dr. Boyd did not respond to this motion. However, whether and how Dr.
Boyd responded to Mr. Roberts’s first set of interrogatories is not evident from
Mr. Roberts’s motion because Mr. Roberts did not include a copy of Dr. Boyd’s
responses. Under the District of South Dakota’s Civil Local Rules of Practice,
“[a]ny portions of discovery materials necessary for the disposition of any
motion filed (with relevant portions highlighted or underlined) must either be
attached as an exhibit to the party’s brief in support of such motion or
attached to the party’s affidavit filed with the brief.” D.S.D. Civ. LR 26.1.C. Mr.
Roberts also did not first engage in a good faith effort to resolve this discovery
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dispute with Dr. Boyd prior to filing this motion. D.S.D. Civ. LR 37.1 (requiring
a party to “file a separate certification describing the good faith efforts of the
parties to resolve the dispute”); see Docket 40 (denying Mr. Roberts’s motion to
compel in part for his failure to comply with LR 37.1). Therefore, his motion to
compel more complete answers is denied.
Finally, Mr. Roberts filed a motion to provide supplemental information
to support his claims. Docket 61. He states that his “motion aims to furnish
the Court with additional medical documentation and analysis essential for a
complete understanding of the Plaintiff’s injuries and the Defendants’ alleged
negligence.” Id. at 1. He attached additional medical records to this motion and
contends that “[t]hese records substantiate and expand upon the Plaintiff’s
allegations of prolonged negligence and its impact on the Plaintiff’s physical
and mental health.” Id. at 2.
Under Federal Rule of Civil Procedure, “[o]n motion and reasonable
notice, the court may, on just terms, permit a party to serve a supplemental
pleading setting out any transaction, occurrence, or event that happened after
the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). “In
exercising its discretion, the court should also consider whether ‘the proposed
pleading is futile in that it adds nothing of substance to the original allegations
or is not germane to the original cause of action.’” Smith v. Brown, 4:16-CV04014-LLP, 2018 WL 1440328, (D.S.D. Mar. 22, 2018) (citation omitted). Mr.
Roberts’s motion does not add anything of substance to his claims against Dr.

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Boyd; it merely seeks to add recent medical records to the docket. Therefore,
Mr. Roberts’s motion to supplement is futile and denied.
Accordingly, it is hereby
ORDERED that Dr. Boyd’s motion for summary judgment and motion to
dismiss, Docket 45, is granted. It is further
ORDERED that Mr. Roberts’s Eighth Amendment deliberate indifference
claim against Dr. Boyd is dismissed with prejudice, and his state-law medical
malpractice claim against Dr. Boyd, Docket 1, is dismissed with prejudice. It is
further
ORDERED that Dr. Boyd’s motion to stay discovery, Docket 50, is
dismissed as moot. It is further
ORDERED that Mr. Roberts’s motion to compel, Dockets 58, is denied. It
is further
ORDERED that Mr. Roberts’s motion to provide supplemental
information, Docket 61, is denied.
DATED March 12, 2025.
BY THE COURT:
/s/ Camela C. Theeler
CAMELA C. THEELER
UNITED STATES DISTRICT JUDGE

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