Kenyon v. Dooley

TONY KENYON, Plaintiff, v. WARDEN DOOLEY, Director of Prison Operations;DEPARTMENT OF HEALTH, Prison Health Service Department;DR. REIGER, provider; DARL DEIDE, PheasantlandIndustries; and STROMAB SPA MANUFACTURING COMPANY, Defendants.

Civ. 13-4109-KES

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

Dated July 25, 2014

ORDER GRANTING DEFENDANTS'

MOTION FOR SUMMARY

JUDGMENT

Plaintiff, Tony Kenyon, is an inmate at the South Dakota State Penitentiary (SDSP) in Sioux Falls, South Dakota. On October 7, 2013, Kenyon filed a pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983, alleging that defendants violated his rights under the Eighth Amendment by failing to inspect equipment, follow the recommendations of his doctor, and provide adequate aftercare, therapy, and pain management. Docket 1. On February 28, 2014, defendants Warden Dooley, Department of Health, Dr. Regier, and Darl Diede moved for summary judgment.¹ Dockets 29. Kenyon did not respond todefendants' motion for summary judgment, and the time for response has passed. Kenyon did file a reply to defendants' answer on April 24, 2014. Docket 30. After consideration, the court grants defendants' motion for summary judgment.

FACTUAL BACKGROUND

Viewed in a light most favorable to Kenyon, the nonmoving party, the facts are as follows²:

Defendant Warden Dooley is the Director of Prison Operations of South Dakota Department of Corrections (SDDOC) since June 2013. Defendant E.R. Regier, M.D., has provided medical care to inmates at SDSP since May 2001.Darl Diede is Director of Pheasantland Industries at SDSP since March 2012. Kenyon is an inmate in the custody of the South Dakota Department of Corrections (SDDOC).

While in the custody of the SDDOC, Kenyon worked in the cabinet shop. As a condition precedent to his working at the cabinet shop, Kenyon was required to undergo training by a fellow inmate on the proper operation of the equipment, sign an "Operation Training Sheet" to certify he understood how to properly operate the equipment, and attend weekly safety meetings.³ Staff also conducted weekly inspections to make sure the equipment was operational.⁴ Dockets 26; 25-27; 25-29.

At approximately 2:45 p.m., on June 27, 2013, Kenyon went to clean the Tiger-Stop Saw, as he had done many times before. After triggering the emergency shut off switch by opening the door, he reached into the saw. The fourth time he reached into the saw, the blade turned back on and cut off his index finger, also damaging his middle finger in the process. Docket 1. Immediately after the accident Kenyon was taken to Health Services to have hisinjury examined. Here, Kenyon stated that he "knew better than to do that" and that "[i]t was [his] fault. [He] wasn't paying attention."⁵ Docket 25-30.

Kenyon was soon transported by ambulance to the Emergency Room at McKennan Hospital in Sioux Falls, South Dakota. At the hospital, Kenyon underwent metacarpophalangeal (MCP) fusion of the finger. Kenyon was not given his prescribed pain medication until 36 hours after he was released from the hospital. Docket 30. Kenyon saw Dr. Scott McPherson regularly after the surgery. Dr. McPherson told Kenyon to perform exercises with his fingers and Health Service's staff provided Kenyon with a PTEX home exercise program. It took 3½ weeks for the hospital to send Kenyon to physical therapy. Docket 30. Kenyon's hand was put in a splint and Dr. McPherson advised Kenyon of the possibility of amputation. During the multiple follow-up appointments, Kenyon's hand was x-rayed many times before Dr. McPherson finally determined that the finger was only getting in Kenyon's way and should be removed. Kenyon agreed with Dr. McPherson's recommendation, and Kenyon's finger was amputated.

Following amputation, Kenyon was prescribed Hydrocodone, Ibuprofen, and Tramadol. Kenyon was not given his prescribed medication until 38 hours after he was released from the hospital. Docket 30. When Kenyon returned toSDSP he was given Lortab⁶ and Ibuprofen. Staff elected to withhold the Tramadol because Tramadol mixed with Lortab can cause respiratory depression and its addictive qualities can be subject to abuse. Dr. Regier did not examine Kenyon's hand before making this decision. Docket 30. When an outside provider prescribed Tylenol #3 because Kenyon was continuing to experience pain, however, staff decided that considering Kenyon's susceptibility to liver damage, it would be safer to place him back on Tramadol. Health Services increased Kenyon's prescription upon his request. Kenyon reported that the drugs were working to "take the edge off of pain." Docket 25-28.

STANDARD OF REVIEW

"Summary judgment is appropriate when the evidence,⁷ viewed in a light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law." Clark v. Kellogg Co., 205 F.3d 1079, 1082 (8th Cir. 2000); see also Fed. R. Civ. P. 56(a). A genuine issue of material fact contains enough facts to state a claim to relief that is plausible on its face, not merely conceivable. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). If a claim forrelief is factually unsupported, summary judgment is appropriate to dispose of the claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

"Once the motion for summary judgment is made and supported, it places an affirmative burden on the non-moving party to go beyond the pleadings and by affidavit or otherwise designate specific facts showing that there is a genuine issue for trial." Commercial Union Ins. Co. v. Schmidt, 967 F.2d 270, 271 (8th Cir. 1992) (internal quotations and citations omitted). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although "the court is required to . . . give [the nonmoving] party the benefit of all reasonable inferences to be drawn from the underlying facts," Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980), the nonmoving party may not "rest upon mere denials or allegations." Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002). Instead, the nonmoving party must "set forth specific facts sufficient to raise a genuine issue for trial." Id.

Prisoners who proceed pro se are entitled to the benefit of liberal construction at the pleading stage. Quam, 821 F.2d at 522. 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 ofmaterial fact." Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996). Moreover, the court is not "required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Id. 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).

DISCUSSION

Kenyon asserts that defendants acted in deliberate indifference toward his serious medical needs by failing to protect him from injury, follow his doctor's orders, and provide adequate aftercare, therapy, and pain management. Defendants assert that they are entitled to summary judgment on Kenyon's § 1983 claims because Kenyon stated claims on which relief cannot be granted.

I. Defendants Are Entitled to Summary Judgment on Count I.

Among defendants named for having failed to protect Kenyon from injury by not inspecting machinery or properly training Kenyon are: E.R. Regier, M.D., a medical provider; Warden Dooley, the Director of Prison Operations; and South Dakota Department of Health. These defendants argue that they are not involved in the daily operations of the cabinet shop and cannot be liable forfailing to inspect machinery or improperly training Kenyon. Defendants further argue that even if Dooley could be responsible for failing to implement proper training procedures, Kenyon has not raised enough facts to show that Dooley was deliberately indifferent to a need for different training. Moreover, defendants argue that Kenyon has failed to establish that defendants, including Diede, were aware of a risk and that defendants disregarded that risk.

To prevail on an Eighth Amendment claim for a failure to protect, a plaintiff must show that a defendant was personally involved in the alleged deprivation of rights and deliberately interfered with those rights. See DuBois v. Dooley, 277 F. App'x 651, 652 (8th Cir. 2008). To establish deliberate interference, plaintiff "must show both an objective element, that the deprivation was sufficiently serious, and a subjective element, that the defendant acted with a sufficiently culpable state of mind." Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997) (citations omitted).

A deliberate indifference to act is also a form of deliberate interference. See Coleman, 114 F.3d at 785. To show deliberate indifference, an inmate must demonstrate that a prison official knew the "inmate face[d] a substantial risk of serious harm and disregard[ed] that risk by failing to take reasonable measures to abate it."Id. (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994)). For example, "the need for more or different training [must be] so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that[defendants] can reasonably be said to have been deliberately indifferent to the need." Ambrose v. Young, 474 F.3d 1070, 1079-80 (8th Cir. 2007) (citing ...