Brown v. Deol

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

JESUS BROWN,

Plaintiff, 4:18CV3020

vs.

MEMORANDUM

DR. DEOL, Nebraska Department of AND ORDER

Correctional Services Medical Director,

individually and in their official

capacities; GARY J. HUSTAD, MD,

individually and in their official

capacities; DAN DANAHER, Physician

Assistant, individually and in their official

capacities; and DR. JEFFREY

KASSELMAN, in his individual and

official capacity;

Defendants.

This matter is before the court on Defendants’ Motion for Summary

Judgment. (Filing No. 42.) For the reasons that follow, the Motion is granted.

I. BACKGROUND

Plaintiff, an inmate in the custody of the Nebraska Department of Correctional

Services (“NDCS”) and currently confined at the Lincoln Correctional Center

(“LCC”), brings this 42 U.S.C. § 1983 action against Defendants Dr. Deol, the

NDCS Medical Director; Gary J. Hustad, M.D., a doctor responsible for NDCS

inmates housed at LCC and the Diagnostic & Evaluation Center (“DEC”); Dr.

Jeffrey Kasselman, the pain specialist for the NDCS; and Physician Assistant

(“P.A.”) Dan Danaher. (Filing No. 1 & Filing No. 21.) Plaintiff claims that

Defendants have failed to provide him medical treatment in violation of the Eighth

Amendment. (Filing No. 1 & Filing No. 21.)

Plaintiff alleges that he entered NDCS custody with an existing back injury

from a car accident for which he had been receiving treatment. Upon admission at

the DEC, Plaintiff informed NDCS medical staff of his back injury and pain, as well

as medical issues with his neck, feet, hand, elbow, shoulder, and knee. Plaintiff

asserts that his medical conditions are documented in his medical records, in MRIs,

and by specialists, and that Defendants are “well aware of the plaintiff’s medical

issues and still wish to not treat him for them as they should be.” (Filing No. 1 at

CM/ECF p. 3.) More specifically, Plaintiff complains that he was given Gabapentin

for his pain issues, rather than Lyrica as was recommended by another doctor (Filing

No. 1-1 at CM/ECF pp. 3, 14), and that his prescription pain medication eventually

was tapered off, and then discontinued, “even though the[re] is written

documentation and [a] specialist that say[s] he needs pain medication.” (Filing No.

1 at CM/ECF p. 3; Filing No. 1-1 at CM/ECF p. 8. In a supplement, Plaintiff

indicates that he has been put back on Gabapentin as of July 31, 2018 but maintains

that he is still in extreme pain and medical is refusing to provide necessary medical

treatment. (Filing No. 15 at CM/ECF pp. 1, 86–91.)

With respect to Dr. Hustad and P.A. Danaher, Plaintiff alleges that they both

were responsible for the medical care of inmates housed at the LCC. (Filing No. 1

at CM/ECF p. 2.) Plaintiff alleges that both Dr. Hustad and P.A. Danaher were aware

of Plaintiff’s medical needs, his complaints of extreme pain, and that outside prison

doctors had ordered certain treatments and medications. Despite this knowledge,

they refused to administer Plaintiff the necessary treatments and medications

recommended by Plaintiff’s outside physicians. Specifically, Plaintiff alleges that

one specialist “even recommended a stronger pain medication and P.A. Danaher

refused to give this medication to [Plaintiff] and ordered a less stronger medication

for his pain so as [Plaintiff] had to suffer in pain.” (Filing No. 1 at CM/ECF p. 3.)

Further, Plaintiff alleges “P.A. Danaher also told the Plaintiff that because he

complained so much about being in pain [P.A. Danaher] did not believe that he was

in pain and took him off all of his pain medication even though the[re] is written

documentation and [a] specialist that say he needs pain medication.” (Filing No. 1

at CM/ECF p. 3.) Plaintiff alleges that Dr. Hustad oversees P.A. Danaher and knew

of Plaintiff’s medical needs but failed to ensure Plaintiff received the treatment he

needs. The Inmate Interview Requests (“IIRs”) attached to Plaintiff’s Complaint

show that Dr. Hustad consulted with P.A. Danaher about Plaintiff’s medical

complaints and personally responded to some of Plaintiff’s IIRs about his medical

issues. (Filing No. 1-1 at CM/ECF pp. 11, 13-14.)

Regarding Dr. Kasselman, Plaintiff alleges that he is the pain specialist for the

NDCS who “agreed to remove [Plaintiff] off his medication, even when he was in

serious pain.” (Filing No. 21 at CM/ECF pp. 1, 3, ¶¶ 4, 20.)

Plaintiff further alleges that Dr. Deol, the NDCS Medical Director, was

deliberately indifferent to Plaintiff’s medical needs and “knew or should have

known” about Plaintiff’s medical needs and lack of treatment because “he oversees

all of the Department of Medical and is the one whom approves all Medical

procedures and treatments being done to any prison inmate . . . and is the one whom

told all his staff to make cuts in spending and to stop treating some things.” (Filing

No. 1 at CM/ECF p. 5; Filing No. 21 at CM/ECF p. 5, ¶ 28.)

As relief for the Defendants’ alleged deliberate indifference to Plaintiff’s

medical needs, Plaintiff seeks declaratory and injunctive relief, $500,000.00 in

compensatory damages, and $500,000.00 in punitive damages against each

Defendant.1 (Filing No. 1 at CM/ECF p. 5; Filing No. 21 at CM/ECF pp. 5-6.)

1 The court previously determined that this action could proceed to service of

process as to Plaintiff’s Eighth Amendment claims against Defendants in their

individual capacities, as well as in their official capacities for prospective injunctive

relief only. (Filing No. 16 at CM/ECF p. 15; Filing No. 28 at CM/ECF p. 4.)

Defendants filed their Motion for Summary Judgment on July 8, 2019. (Filing

No. 42.) Along with their Motion, Defendants filed a Brief in Support and an Index

of Evidence. (Filing No. 43 & Filing No. 43.) Plaintiff did not file a response to

Defendants’ Motion.

Plaintiff, a pro se litigant, is “bound by and must comply with all local and

federal procedural rules.” NEGenR 1.3(g). The court’s local rules require the party

moving for summary judgment to file a brief containing a “separate statement of

material facts about which the moving party contends there is no genuine issue to be

tried and that entitles the moving party to judgment as a matter of law.” This

statement of facts “should consist of short numbered paragraphs, each containing

pinpoint references to . . . materials that support the material facts . . . .” NECivR

56.1(a). The opposing party must respond to the moving party’s statement of

material facts in a brief containing separate numbered paragraphs with citations to

supporting references and with identification of material facts that are disputed.

NECivR 56.1(b). See also NECivR 7.1(b)(2)(A) (“When filing the opposing brief,

the opposing party must also file and serve supporting evidentiary material not

previously filed.”). Properly referenced material facts in the movant’s statement of

facts are “considered admitted unless controverted in the opposing party’s

response.” NECivR 56.1(b)(1).

The court has carefully reviewed the documents submitted by Defendants.

While Defendants have submitted a statement of material facts in accordance with

the court’s rules, Plaintiff has not filed any response to Defendants’ Motion for

Summary Judgment.2 Further, Defendants submitted evidence which was properly

authenticated by medical records and declarations. In light of this, the court adopts

2 The court does consider the facts alleged in Plaintiff’s verified Complaint

and attached exhibits, Plaintiff’s Amended Complaint, and Plaintiff’s Supplement

and attached exhibits. See Roberson v. Hayti Police Dep’t, 241 F.3d 992, 994-95

(8th Cir. 2001) (“The facts alleged in a verified complaint need not be repeated in a

responsive affidavit in order to survive a summary judgment motion.”) (citations

omitted).

the following undisputed material facts, which are largely taken from Defendants’

submission.

II. UNDISPUTED MATERIAL FACTS

1. On March 27, 2014, Plaintiff was seen by medical staff at the DEC in

Lincoln, Nebraska, with complaints of mid-back pain. (Filing No. 43-1 at CM/ECF

p. 1.) Records from Plaintiff’s previous emergency room visit indicated a T11 wedge

compression fracture that was “fairly mild.” (Filing No. 43-1 at CM/ECF p. 1.)

Plaintiff’s cervical spine CT was completely negative. (Filing No. 43-1 at CM/ECF

p. 1.) Physician Assistant (“P.A.”) Cheryl Flinn continued to prescribe Plaintiff

Tramadol and prescribed Plaintiff Ibuprofen 800 mg “to take in between” as needed

and Flexeril 10 mg to try for the next couple of months. (Filing No. 43-1 at CM/ECF

p. 1.) Plaintiff acknowledged he would not be prescribed Flexeril forever. (Filing

No. 43-1 at CM/ECF p. 1.)

2. On April 15, 2014, Plaintiff was seen by Dr. Christina-Lynn Ferguson

complaining of back pain from a car accident in 2013. (Filing No. 43-1 at CM/ECF

pp. 2, 28.) Dr. Ferguson noted Plaintiff would be scheduled for an X-ray of his

thoracic and lumbar spine. (Filing No. 43-1 at CM/ECF p. 2.) Dr. Ferguson

explained she would schedule Plaintiff for removal of glass from his left forearm as

well. (Filing No. 43-1 at CM/ECF p. 2.)

3. On April 18, 2014, Plaintiff received an X-ray of his lumbar and

thoracic spine. (Filing No. 43-1 at CM/ECF pp. 3-4.) No acute osseous or alignment

abnormality was observed on Plaintiff’s lumbar spine. (Filing No. 43-1 at CM/ECF

p. 3.) With respect to Plaintiff’s thoracic spine, the X-ray indicated “T11 age-

indeterminate wedge compression deformity with approximately 30% loss of

height” but no fractures, dislocations, or alignment abnormality. (Filing No. 43-1 at

CM/ECF p. 4.)

4. On May 16, 2014, Plaintiff underwent a procedure in which glass was

removed from his forearm. (Filing No. 43-1 at CM/ECF p. 5.)

5. On May 23, 2014, Plaintiff received a lower-bunk pass for 30 days.

(Filing No. 43-1 at CM/ECF p. 6.)

6. On June 5, 2014, Plaintiff was seen by Dr. Christina-Lynn Ferguson

regarding his chronic back pain. (Filing No. 43-1 at CM/ECF p. 7.) Dr. Ferguson

discussed with Plaintiff that Flexeril should be limited to short periods of time.

(Filing No. 43-1 at CM/ECF p. 7.) Plaintiff was prescribed Methocarbamol 750 mg

for back spasms. (Filing No. 43-1 at CM/ECF p. 7.)

7. On August 7, 2014, medical saw Plaintiff regarding pain in his right

hand. (Filing No. 43-1 at CM/ECF p. 8.) The next day, on August 8, 2014, Plaintiff

had an X-ray of that hand. (Filing No. 43-1 at CM/ECF p. 8.)

8. On October 16, 2014, Plaintiff received a lower-bunk pass for 90 days.

(Filing No. 43-1 at CM/ECF p. 9.)

9. On October 18, 2014, Plaintiff requested a refill of his Methocarbamol

prescription for his back pain. (Filing No. 43-1 at CM/ECF p. 11.) It was refilled

three days later. (Filing No. 43-1 at CM/ECF p. 11.)

10. On October 20, 2014, Plaintiff received a lower-bunk pass for twelve

months. (Filing No. 43-1 at CM/ECF p. 10.)

11. Upon referral, Plaintiff saw an orthopedic specialist on November 3,

2014 for his hand pain. (Filing No. 43-1 at CM/ECF p. 12.) X-rays indicated post-

traumatic arthritis, secondary to closed fist injuries. (Filing No. 43-1 at CM/ECF p.

12.) The orthopedic specialist, Dr. Scott Strasburger, had no recommendations for

treatment. (Filing No. 43-1 at CM/ECF p. 12.)

12. On November 19, 2014, Plaintiff was seen by medical for back and foot

pain. (Filing No. 43-1 at CM/ECF p. 14.) Medical continued Plaintiff’s prescription

for Tramadol and Ibuprofen 800 mg as needed. (Filing No. 43-1 at CM/ECF p. 14.)

13. On November 19, 2014, Plaintiff was given a medical-equipment pass

for orthotic arches. (Filing No. 43-1 at CM/ECF p. 15.)

14. On December 22, 2014, after reporting that the outside orthopedist said

surgery would not help Plaintiff’s wrist, medical requested (and it was approved) up

to six visits for physical therapy for Plaintiff’s right hand/wrist. (Filing No. 43-1 at

CM/ECF p. 13.)

15. On December 22, 2014, Plaintiff was given a medical-equipment pass

for a brace/splint for carpal tunnel. (Filing No. 43-1 at CM/ECF p. 16.)

16. On December 24, 2014, Plaintiff met with medical and discussed his

right wrist pain and how they would proceed with physical therapy to work on

strengthening his grip and increasing his range of motion. (Filing No. 43-1 at

CM/ECF p. 17.) Medical also ordered fish oil 1000 mg for joint pain. (Filing No.

43-1 at CM/ECF p. 17.)

17. On January 8, 2015, and January 22, 2015, Plaintiff did not show up for

his scheduled physical therapy appointments. (Filing No. 43-1 at CM/ECF pp. 18-

19.)

18. On February 3, 2015, Plaintiff met with P.A. Cameron Eklund to

discuss his neck and hand pain. (Filing No. 43-1 at CM/ECF p. 20.) P.A. Eklund

prescribed a cervical pillow for six months, a cock-up wrist splint to sleep in, and

continued physical therapy. (Filing No. 43-1 at CM/ECF p. 20.)

19. On February 12, 2015, Plaintiff met with Dr. Ferguson complaining of

back pain. (Filing No. 43-1 at CM/ECF pp. 20-21.) Dr. Ferguson advised Plaintiff

to continue taking Tramadol for back and hand pain, continue using wrist splint, and

was prescribed 300 mg Gabapentin to use in the mornings for back pain. (Filing No.

43-1 at CM/ECF p. 21.)

20. On March 25, 2015, Plaintiff received a medical equipment pass for

arch insoles. (Filing No. 43-1 at CM/ECF p. 22.)

21. On April 3, 2015, medical ordered, and Plaintiff received, an X-ray on

his elbow. (Filing No. 43-1 at CM/ECF p. 23.)

22. On April 27, 2015, Plaintiff failed to attend his scheduled appointment.

(Filing No. 43-1 at CM/ECF p. 24.)

23. On May 8, 2015, Plaintiff failed to attend his scheduled appointment.

(Filing No. 43-1 at CM/ECF p. 24.)

24. On May 27, 2015, Plaintiff met with APRN Julie Pew with complaints

of hand and knee pain. (Filing No. 43-1 at CM/ECF p. 24.) APRN Pew noted

Plaintiff was already taking Tramadol 50 mg three times per day, Gabapentin 300

mg in the morning, and Methocarbamol 750 mg two times per day. (Filing No. 43-

1 at CM/ECF p. 24.) APRN Pew added Naproxen 500 mg twice per day as needed

for hand and knee pain with one refill. (Filing No. 43-1 at CM/ECF p. 24.)

Additionally, APRN Pew ordered an X-ray of his knee. (Filing No. 43-1 at CM/ECF

p. 24.)

25. On May 29, 2015, Plaintiff received an X-ray of his knee. (Filing No.

43-1 at CM/ECF p. 25.)

26. On or around the summer of 2015, Plaintiff was released from prison

and released into the community. (Filing No. 43-1 at CM/ECF pp. 26, 95.)

27. On or about October 22, 2015, Plaintiff was back within NDCS custody

and complained of back pain in an IIR. (Filing No. 43-1 at CM/ECF p. 27.) The next

day, NDCS staff informed Plaintiff he should start receiving Tramadol, Flexeril, and

Gabapentin that day. (Filing No. 43-1 at CM/ECF p. 27.)

28. On October 27, 2015, Plaintiff met with medical to address complaints

of back pain. (Filing No. 43-1 at CM/ECF p. 28.) Plaintiff complained his Tramadol

50 mg twice per day was not helping and that he was not receiving Flexeril. (Filing

No. 43-1 at CM/ECF p. 28.) P.A. Jennifer Biestek informed Plaintiff that

“Cyclobenzaprine,” which he had been receiving, was, in fact, Flexeril. (Filing No.

43-1 at CM/ECF p. 28.) P.A. Biestek noted in Plaintiff’s medical file that he had a

history of drug abuse (methamphetamines, cocaine, and marijuana) per his intake

physical. (Filing No. 43-1 at CM/ECF p. 28.) P.A. Biestek declined to increase

Plaintiff’s Tramadol because she did not believe there was enough medical

documentation of necessity based on MRI findings. (Filing No. 43-1 at CM/ECF p.

28.) Defendant Dr. Hustad agreed with P.A. Biestek’s treatment plan. (Filing No.

43-1 at CM/ECF p. 28.)

29. On October 29, 2015, Plaintiff received a lower-bunk pass for 365 days.

(Filing No. 43-1 at CM/ECF p. 29.)

30. On November 2, 2015, Plaintiff met with P.A. Flinn complaining of

wrist, hand, and back pain. (Filing No. 43-1 at CM/ECF p. 30.) Plaintiff believed

that there was some sort of surgery to fix the problems. (Filing No. 43-1 at CM/ECF

p. 30.) P.A. Flinn informed him surgery is not done with compression fractures.

Filing No. 43-1 at CM/ECF p. 30.) P.A. Flinn ordered an X-ray of Plaintiff’s hand

and wrist and restricted Plaintiff from weightlifting or playing basketball. (Filing

No. 43-1 at CM/ECF p. 30.) Plaintiff said he did not lift weights, but P.A. Flinn

noted that his physique suggested otherwise. (Filing No. 43-1 at CM/ECF p. 30.)

31. On November 2, 2015, Plaintiff was approved for a physical therapy

consultation. (Filing No. 43-1 at CM/ECF p. 30.)

32. On November 3, 2015, Plaintiff received an X-ray of his right wrist and

hand. (Filing No. 43-1 at CM/ECF p. 31.) No evidence of an acute fracture or

dislocation in the hand was observed. (Filing No. 43-1 at CM/ECF p. 31.)

33. On November 5, 2015, Plaintiff received a physical therapy evaluation

and approval for six sessions. (Filing No. 43-1 at CM/ECF p. 32.)

34. On November 19, 2015, Dr. Hustad saw Plaintiff because of “ongoing

complaints of inadequate management of chronic mid back pain.” (Filing No. 43-1

at CM/ECF p. 33.) After discussion with, and examination of, Plaintiff, Dr. Hustad

ordered Plaintiff’s Naproxen discontinued (Plaintiff reported it was not effective),

increased Tramadol to 50 mg 3 times per day, increased Gabapentin to 400 mg one

in morning and two at night. (Filing No. 43-1 at CM/ECF p. 34.) Dr. Hustad strongly

encouraged Plaintiff to comply with physical therapy recommendations and

expressed his “long-term prognosis is to be found in non-medication modalities.”

(Filing No. 43-1 at CM/ECF p. 34.)

35. On December 23, 2015, Plaintiff was given 60 mg of Ketorolac after

feeling pain from lifting heavy milk carts. (Filing No. 43-1 at CM/ECF p. 35.)

36. On December 31, 2015, Dr. Hustad saw Plaintiff to follow-up on his

low back and neck pain. (Filing No. 43-1 at CM/ECF p. 36.) Dr. Hustad requested a

neurosurgical consultation to evaluate possible carpal tunnel syndrome and

Plaintiff’s low back pain in light of his MRI in October 2015. (Filing No. 43-1 at

CM/ECF p. 37.) Dr. Hustad ordered an X-ray of Plaintiff’s cervical spine, thoracic

spine, and lumbar sacral spine. (Filing No. 43-1 at CM/ECF p. 37.) Dr. Hustad

increased Plaintiff’s Gabapentin to 600 mg in the morning and 1200 mg at night.

(Filing No. 43-1 at CM/ECF p. 37.) Dr. Hustad reviewed and continued Plaintiff’s

other prescriptions such as Methocarbamol 750 mg twice a day and Tramadol 50 mg

three times a day. (Filing No. 43-1 at CM/ECF p. 38.)

37. On January 5, 2016, Plaintiff had an X-ray of lumbar, thoracic, and

cervical spine per Dr. Hustad’s order. (Filing No. 43-1 at CM/ECF p. 39.)

Radiograph of the cervical, thoracic, and lumbar spine resulted in normal

impression. (Filing No. 43-1 at CM/ECF p. 39.)

38. On January 19, 2016, Dr. Hustad sent Plaintiff to an outside

neurological and spinal surgery consult regarding his back pain. (Filing No. 43-1 at

CM/ECF pp. 41-42.) Consult determined there was nothing surgical to offer for

Plaintiff’s back pain and “really doubt[ed]” that injections would be helpful either.

(Filing No. 43-1 at CM/ECF pp. 42-43.)

39. On February 2, 2016, Dr. Kohl approved Plaintiff to see an outside

orthopedic surgeon for a consultation regarding a cyst on his wrist and hand pain.

(Filing No. 43-1 at CM/ECF p. 43.)

40. On February 4, 2016, Plaintiff received an X-ray of his hand. (Filing

No. 43-1 at CM/ECF p. 44.)

41. On February 23, 2016, per Dr. Hustad’s referral, Plaintiff met with an

outside orthopedic surgeon who explained treatment options for his cyst on his wrist

to include observation, compression, aspiration, and surgical excision. (Filing No.

43-1 at CM/ECF pp. 45-48.) Plaintiff indicated he wished to proceed with surgery.

(Filing No. 43-1 at CM/ECF p. 46.)

42. On March 1, 2016, Dr. Hustad met with Plaintiff to discuss the surgical

consult and Plaintiff’s back and elbow pain. (Filing No. 43-1 at CM/ECF p. 48.)

Since the time of the consult with the orthopedic surgeon, the cyst on Plaintiff’s hand

had “gone away” and was no longer causing symptoms. (Filing No. 43-1 at CM/ECF

p. 48.) Dr. Hustad ordered X-rays of both of Plaintiff’s elbows because of complaints

of chronic pain. (Filing No. 43-1 at CM/ECF p. 48.) Dr. Hustad discussed with

Plaintiff the possibility of using Cyclobenzaprine for musculoskeletal pain;

however, a drug interaction query indicated increased risk of seizures if taken

concomitantly with Tramadol. (Filing No. 43-1 at CM/ECF p. 48.) As such, Dr.

Hustad chose not to prescribe Cyclobenzaprine at that time. (Filing No. 43-1 at

CM/ECF p. 48.) Dr. Hustad recommended Plaintiff complete his physical therapy

regarding his back pain. (Filing No. 43-1 at CM/ECF p. 48.) Dr. Hustad renewed

Plaintiff’s Tramadol prescription for two more weeks. (Filing No. 43-1 at CM/ECF

p. 48.)

43. On March 3, 2016, per Dr. Hustad’s request, Plaintiff received X-rays

of both elbows. (Filing No. 43-1 at CM/ECF p. 49.)

44. On March 29, 2016, Dr. Hustad met with Plaintiff following receipt of

IIRs concerning neck pain. (Filing No. 43-1 at CM/ECF p. 50.) Dr. Hustad ordered

X-rays, encouraged continued physical therapy, renewed Plaintiff’s lower bunk pass

for 180 days, renewed Plaintiff’s prescription of Tramadol, and scheduled to see

Plaintiff again after he had completed more X-rays and physical therapy. (Filing No.

43-1 at CM/ECF p. 50.)

45. On March 31, 2016, Plaintiff received a medical equipment pass for a

back support/brace. (Filing No. 43-1 at CM/ECF p. 51.)

46. On April 5, 2016, per Dr. Hustad’s request, Plaintiff received a cervical

spine X-ray for his neck pain. (Filing No. 43-1 at CM/ECF p. 52.)

47. On April 12, 2016, Dr. Hustad met with Plaintiff to follow-up on his

neck pain. (Filing No. 43-1 at CM/ECF p. 53.) The X-rays taken on April 5, 2016

revealed Plaintiff’s C-spine was negative for abnormalities. (Filing No. 43-1 at

CM/ECF p. 53.) Dr. Hustad informed Plaintiff he spoke with Plaintiff’s physical

therapist who prescribed using a Theraband and doing his home exercise program

as recommended. (Filing No. 43-1 at CM/ECF p. 53.) Dr. Hustad advised Plaintiff

to continue present medications as recommended for back pain. (Filing No. 43-1 at

CM/ECF p. 53.) Plaintiff complained of foot pain. (Filing No. 43-1 at CM/ECF p.

53.) Dr. Hustad indicated he would inquire about getting loafers for Plaintiff to help

with arch support. (Filing No. 43-1 at CM/ECF p. 53.

48. On May 5, 2016, Plaintiff received a medical equipment pass for a

TENS unit with wires and electrodes. (Filing No. 43-1 at CM/ECF p. 54.)

49. On May 13, 2016, Plaintiff received black Velcro shoes from medical.

(Filing No. 43-1 at CM/ECF p. 55.)

50. On May 24, 2016, Dr. Hustad met with Plaintiff to follow-up regarding

his various pain issues. (Filing No. 43-1 at CM/ECF p. 56.) Plaintiff indicated that

his back pain seemed to be better with current medical regimen and physical therapy

and TENS unit use. (Filing No. 43-1 at CM/ECF p. 56.) Dr. Hustad and Plaintiff

discussed issues with Plaintiff’s hand. (Filing No. 43-1 at CM/ECF p. 56.) Dr.

Hustad ordered follow-up consultation with an outside orthopedic surgeon, Dr.

Machado. (Filing No. 43-1 at CM/ECF p. 56.) Plaintiff requested to be prescribed

Amitriptyline to help him with his shoulder and back pain when he sleeps. (Filing

No. 43-1 at CM/ECF p. 56.) Dr. Hustad advised Plaintiff he would perform a drug

interaction query and determine if it would be safe to consider adding Amitriptyline

to his medication regimen. (Filing No. 43-1 at CM/ECF p. 56.)

51. On June 20, 2016, Plaintiff met with medical complaining of

neuropathic pain in the afternoon. (Filing No. 43-1 at CM/ECF p. 57.) Medical

advised it would increase Gabapentin dose for better afternoon coverage. (Filing No.

43-1 at CM/ECF p. 57.)

52. On August 11, 2016, Dr. Hustad renewed Plaintiff’s prescription for

Tramadol. (Filing No. 43-1 at CM/ECF p. 58.)

53. On August 30, 2016, Dr. Hustad met with Plaintiff to discuss hand pain

and possibility of surgery. (Filing No. 43-1 at CM/ECF p. 59.) Dr. Hustad explained

that the outside orthopedic surgeon did not recommend surgery but encouraged

Plaintiff to seek a second opinion if he wished. (Filing No. 43-1 at CM/ECF p. 59.)

Dr. Hustad expressed he would request over-the-counter arch supports to help with

Plaintiff’s foot pain. (Filing No. 43-1 at CM/ECF p. 59.)

54. On September 20, 2016, Dr. Hustad met with Plaintiff for follow-up

regarding foot, joint, and hand pain. (Filing No. 43-1 at CM/ECF p. 61.) Dr. Hustad

advised Plaintiff to continue current medications for joint pain and that he was

approved for consultation for a second opinion regarding his hand and was approved

for over-the-counter arch supports. (Filing No. 43-1 at CM/ECF p. 61.)

55. On September 20, 2016, Plaintiff received a lower-bunk pass for 180

days. (Filing No. 43-1 at CM/ECF p. 62.)

56. On September 22, 2016, medical gave Plaintiff replacement loafers.

(Filing No. 43-1 at CM/ECF p. 60.)

57. On September 26, 2016, medical provided Plaintiff with orthotic arch

supports. (Filing No. 43-1 at CM/ECF p. 63.)

58. On November 8, 2016, Dr. Hustad met with Plaintiff to discuss ongoing

pain in his right hand. (Filing No. 43-1 at CM/ECF pp. 64-65.) Dr. Hustad sent

Plaintiff’s records and images of his hand to an outside provider, Dr. Gove, for

Plaintiff’s requested second opinion. (Filing No. 43-1 at CM/ECF p. 64.) Dr. Gove

reviewed records and had nothing else to offer that was not already presented by the

first consulting orthopedic surgeon, Dr. Machado, and thus refused to see Plaintiff

for this problem. (Filing No. 43-1 at CM/ECF p. 64.) Plaintiff also complained of

knee pain incident to a recent fall. (Filing No. 43-1 at CM/ECF p. 64.) Dr. Hustad

ordered X-rays of Plaintiff’s knee and patella, as well as a consult request of physical

therapy to help recommend non-operative and non-medication modalities regarding

his right hand pain. (Filing No. 43-1 at CM/ECF p. 65.) Dr. Hustad noted he would

follow-up after physical therapy and results of X-rays. (Filing No. 43-1 at CM/ECF

p. 65.)

59. On November 14, 2016, Plaintiff received an X-ray of his right knee.

(Filing No. 43-1 at CM/ECF p. 66.) The X-ray indicated moderate suprapatellar knee

joint effusion but no fracture or dislocation was observed. (Filing No. 43-1 at

CM/ECF p. 66.)

60. On November 17, 2016, Plaintiff underwent a physical therapy

evaluation. (Filing No. 43-1 at CM/ECF p. 65.)

61. On December 13, 2016, Dr. Hustad met with Plaintiff and discussed a

consult request for physical therapy for Plaintiff’s knee pain. (Filing No. 43-1 at

CM/ECF pp. 67-68.) Dr. Hustad also sent a consult request to an orthopedic foot and

ankle specialist for evaluation of Plaintiff’s foot pronation and foot pain. (Filing No.

43-1 at CM/ECF pp. 67-68.)

62. On December 22, 2016, Plaintiff’s medical equipment pass for a TENS

unit with electrodes, wires, and battery was renewed. (Filing No. 43-1 at CM/ECF

p. 69.)

63. On January 12, 2017, Plaintiff received X-rays of his right elbow.

(Filing No. 43-1 at CM/ECF p. 70.)

64. On January 27, 2017, Plaintiff was sent to an outside orthopedic

specialist who provided an injection of 14 mg of Celestone, 60 mg of Marcaine, and

60 mg of Lidocaine on Plaintiff’s knee. (Filing No. 43-1 at CM/ECF pp. 71-72.) The

orthopedic specialist also recommended bilateral custom molded orthotics to help

Plaintiff’s feet. (Filing No. 43-1 at CM/ECF p. 73.)

65. On February 2, 2017, an X-ray of Plaintiff’s right elbow was ordered.

(Filing No. 43-1 at CM/ECF p. 74.)

66. On February 7, 2017, per Dr. Hustad’s request, Plaintiff received an X-

ray of his right elbow. (Filing No. 43-1 at CM/ECF p. 75.) No fracture deformity or

joint effusion was identified, and the soft tissue was normal. (Filing No. 43-1 at

CM/ECF p. 75.) There was “a stable small rounded ossification at the medial

epicondyle, likely related to remote medial epicondylitis.” (Filing No. 43-1 at

CM/ECF p. 75.)

67. On February 14, 2017, per Dr. Hustad’s request, Dr. Deol approved

bilateral custom molded orthotics for Plaintiff. (Filing No. 43-1 at CM/ECF p. 80.)

68. On March 2, 2017, Dr. Hustad met with Plaintiff to discuss pain in his

feet, wrist, elbows, and knee. (Filing No. 43-1 at CM/ECF p. 76.) Dr. Hustad

prescribed Naproxen 250 mg on a short-term basis to see if it helped with pain, cold

packs daily for Plaintiff’s right hand pain, asked the physical therapist to contact him

to discuss Plaintiff’s right hand and his assessment of it, and ordered new X-rays of

Plaintiff’s elbows. (Filing No. 43-1 at CM/ECF p. 77.) Dr. Hustad planned to follow-

up with Plaintiff in 4-6 weeks after X-rays, physical therapy, and trial of

medications. (Filing No. 43-1 at CM/ECF p. 77.)

69. On March 3, 2017, Plaintiff received a medical equipment pass for an

edema glove for his hand. (Filing No. 43-1 at CM/ECF p. 78.)

70. On March 15, 2017, Dr. Hustad refilled Plaintiff’s Tramadol 50 mg

prescription. (Filing No. 43-1 at CM/ECF p. 79.)

71. On March 29, 2017, Plaintiff was seen by P.A. Vaughan Wenzel after

Plaintiff sustained an injury in a fight, as well as for back pain. (Filing No. 43-1 at

CM/ECF p. 81.) Plaintiff was prescribed Ibuprofen 800 mg for 3 days and was

continued on Tramadol 100 mg. (Filing No. 43-1 at CM/ECF p. 82.) Medical noted

that Cyclobenzaprine was “ABSOLUTELY [contraindicated] with other psych

meds he takes” and with Gabapentin “that he is already taking for low back pain.”

(Filing No. 43-1 at CM/ECF p. 82.) X-rays and an MRI were ordered for Plaintiff’s

spine. (Filing No. 43-1 at CM/ECF p. 83.) Plaintiff was also referred for a physical

therapy evaluation. (Filing No. 43-1 at CM/ECF p. 83.)

72. On March 29, 2017, custom molded foot orthotics were issued to

Plaintiff. (Filing No. 43-1 at CM/ECF pp. 81, 84.)

73. On April 3, 2017, Plaintiff received an X-ray of his lumbar spine in

which no evidence of fracture or subluxation was observed; vertebral body heights

and intervertebral disc spaces were maintained; sacroiliac joints were normal in

appearance; and soft tissue were unremarkable. (Filing No. 43-1 at CM/ECF pp. 85-

86.)

74. On April 7, 2017, Plaintiff was scheduled and received an MRI of his

lumbar spine. (Filing No. 43-1 at CM/ECF p. 88.)

75. On April 7, 2017, Plaintiff’s prescription of Gabapentin was renewed.

(Filing No. 43-1 at CM/ECF p. 88.)

76. On April 14, 2017, Defendant P.A. Dan Danaher renewed Plaintiff’s

prescription for Methocarbamol for 60 days. (Filing No. 43-1 at CM/ECF p. 89.)

77. On April 19, 2017, Plaintiff met with P.A. Wenzel to discuss Plaintiff’s

MRI. (Filing No. 43-1 at CM/ECF p. 90.) P.A. Wenzel noted Plaintiff was already

on Tramadol 100 mg three times per day, Ibuprofen three times per day, and

Gabapentin 900 mg two times per day. (Filing No. 43-1 at CM/ECF p. 90.) P.A.

Wenzel increased Plaintiff’s Gabapentin prescription to 1200 mg. (Filing No. 43-1

at CM/ECF p. 90.)

78. Dr. Hustad renewed Plaintiff’s prescription for Tramadol 50 mg, two

tablets, three times per day, starting on May 3, 2017. (Filing No. 43-1 at CM/ECF p.

91.)

79. On May 23, 2017, Plaintiff failed to attend his appointment at the

chronic care clinic to discuss knee pain. (Filing No. 43-1 at CM/ECF p. 92.)

80. On June 6, 2017, P.A. Danaher met with Plaintiff after complaints of

foot, knee, elbow, and back pain. (Filing No. 43-1 at CM/ECF pp. 95-98.) P.A.

Danaher noted Plaintiff was taking 100 mg Tramadol, 1200 mg Gabapentin, and 800

mg Motrin. (Filing No. 43-1 at CM/ECF p. 96.) Plaintiff said that he was in “severe

pain” in his low-back since 2012 and is still in pain and that it was difficult to do

anything. (Filing No. 43-1 at CM/ECF p. 95.) P.A. Danaher expressed to Plaintiff

that if the “current meds [have] no benefit we should discontinue.” (Filing No. 43-1

at CM/ECF p. 96.) Plaintiff became defensive and stated those medications “help a

little.” (Filing No. 43-1 at CM/ECF p. 96.) Following his exam of Plaintiff, P.A.

Danaher noted that he did not see any indication for additional pain medications and

that “NSAIDs” were most appropriate. (Filing No. 43-1 at CM/ECF p. 97.) P.A.

Danaher also questioned the benefits of muscle relaxants for what was found on the

MRI. (Filing No. 43-1 at CM/ECF p. 98.)

81. On June 20, 2017, P.A. Danaher met with Plaintiff regarding low back

pain and foot pain. (Filing No. 43-1 at CM/ECF p. 98.) Plaintiff indicated he wanted

stronger pain medication; specifically, an increase in Tramadol. (Filing No. 43-1 at

CM/ECF p. 98.) P.A. Danaher noted he would be hesitant to increase his current

pain medication and that Plaintiff should be prepared to taper off Tramadol. (Filing

No. 43-1 at CM/ECF p. 99.) P.A. Danaher discussed physical therapy and modifying

Plaintiff’s activity. (Filing No. 43-1 at CM/ECF p. 99.)

82. On July 2, 2017, Plaintiff met with medical complaining of right hand

discomfort. (Filing No. 43-1 at CM/ECF p. 100.) Notes indicate that his left hand

was slightly swollen his hand grasps were strong and equal to both hands. (Filing

No. 43-1 at CM/ECF p. 100.) Plaintiff was given an ice bag and informed he should

alert staff if any further issues arose. (Filing No. 43-1 at CM/ECF p. 100.)

83. On July 18, 2017, Plaintiff failed to show for his scheduled appointment

regarding foot pain. (Filing No. 43-1 at CM/ECF p. 101.)

84. On July 24, 2017, Plaintiff missed another scheduled appointment

regarding his foot pain. (Filing No. 43-1 at CM/ECF p. 102.)

85. On July 25, 2017, P.A. Danaher refilled Plaintiff’s Tramadol 50 mg

prescription. (Filing No. 43-1 at CM/ECF p. 103.)

86. On July 31, 2017, Plaintiff failed to show for his scheduled appointment

regarding joint pain. (Filing No. 43-1 at CM/ECF p. 104.)

87. On August 3, 2017, Plaintiff saw medical after Plaintiff stated he hit

elbows against a railing on the stairs. (Filing No. 43-1 at CM/ECF p. 105.) After

medical examined Plaintiff, he was provided with two ACE bandage wraps. (Filing

No. 43-1 at CM/ECF pp. 105, 107.)

88. On August 3, 2017, Plaintiff was given a “Notice of Medical Lay-

In/Limited Activity” in which he was restricted from lifting greater than 20 pounds

and from engaging in contact or non-contact sports such as weightlifting, basketball,

handball, etc. (Filing No. 43-1 at CM/ECF p. 106.) This activity restriction was

designated to last until December 3, 2017. (Filing No. 43-1 at CM/ECF p. 106.)

89. On August 7, 2017, Plaintiff was seen by an outside orthopedic

specialist regarding his foot pain. (Filing No. 43-1 at CM/ECF pp. 108-09.) The

outside provider noted Plaintiff was currently taking, among other medications,

Gabapentin 300 mg and Tramadol 50 mg. (Filing No. 43-1 at CM/ECF p. 108.) The

provider noted, “I would encourage [Plaintiff] to talk to the medical personnel there

about possibly switching him from [G]abapentin to Lyrica or if possible increase the

dose of his Gabapentin” for his foot pain. (Filing No. 43-1 at CM/ECF p. 109.)

90. On August 14, 2017, P.A. Danaher saw Plaintiff regarding allergies and

elbow pain. (Filing No. 43-1 at CM/ECF p. 110.) P.A. Danaher noted the outside

provider’s recommendation for a trial of Lyrica for peripheral neuropathy. (Filing

No. 43-1 at CM/ECF p. 110.) P.A. Danaher noted Plaintiff was already on

Gabapentin and Tramadol. (Filing No. 43-1 at CM/ECF p. 110.)

91. On August 28, 2017, P.A. Danaher saw Plaintiff for foot pain and

increased frequency in urination. (Filing No. 43-1 at CM/ECF pp. 112-14.) P.A.

Danaher noted Plaintiff was already taking Tramadol and Gabapentin 1200 mg three

times a day (3600 mg total). (Filing No. 43-1 at CM/ECF p. 112, 114.) Plaintiff

stated that those medications and orthotics were of no benefit for his feet. (Filing

No. 43-1 at CM/ECF p. 112.) P.A. Danaher renewed prescription for Motrin and

started him on Pyridoxine. (Filing No. 43-1 at CM/ECF p. 114.)

92. On August 28, 2017, P.A. Danaher rescinded Plaintiff’s “Medical

Limited Activity” pass because Plaintiff was seen playing handball. (Filing No. 43-

1 at CM/ECF p. 115.)

93. On August 31, 2017, P.A. Danaher discussed with Plaintiff that he had

watched him play handball on August 28, 2017 at a high level. (Filing No. 43-1 at

CM/ECF p. 116.) Plaintiff acknowledged that he had in fact played handball. (Filing

No. 43-1 at CM/ECF p. 116.) P.A. Danaher stated he would be tapering Plaintiff off

his Tramadol, noting that “someone [who] could play hand ball at the level [he] saw

[Plaintiff] [playing] on [August 28, 2017] should not be on Tramadol or other

narcotic medications to treat pain.” (Filing No. 43-1 at CM/ECF p. 116.) P.A.

Danaher informed Plaintiff he would continue his Gabapentin, but he would not

agree to Plaintiff playing handball on this medication. (Filing No. 43-1 at CM/ECF

p. 116.) P.A. Danaher informed Plaintiff that, in his opinion, the Gabapentin and

Ibuprofen would be sufficient and that he should avoid activities that caused

increased pain. (Filing No. 43-1 at CM/ECF p. 117.)

94. On August 31, 2017, PA-C Danaher ordered (1) Plaintiff’s activity

restrictions cancelled, (2) a step-down tapering of Tramadol, (3) Gabapentin and

Ibuprofen to be continued, and (4) modified activities with no sports or weightlifting.

(Filing No. 43-1 at CM/ECF p. 117.) P.A. Danaher had discussed this plan with Dr.

Hustad the previous day. (Filing No. 43-1 at CM/ECF p. 117.)

95. On September 11, 2017, Plaintiff failed to show for his scheduled

medical appointment. (Filing No. 43-1 at CM/ECF p. 118.)

96. On October 2, 2017, P.A. Danaher met with Plaintiff to discuss his foot

pain. (Filing No. 43-1 at CM/ECF p. 120.)

97. On October 3, 2017, P.A. Danaher discussed with Dr. Kasselman

possibilities for chronic pain management for Plaintiff. (Filing No. 43-1 at CM/ECF

p. 121.) Dr. Kasselman recommended lab tests to evaluate if monthly B12 injections

would be beneficial. (Filing No. 43-1 at CM/ECF p. 121.)

98. On October 16, 2017, Plaintiff received a lower bunk pass assignment

for 365 days. (Filing No. 43-1 at CM/ECF p. 119.)

99. On October 18, 2017, Plaintiff refused the lab draw. (Filing No. 43-1 at

CM/ECF p. 122.)

100. On October 19, 2017, Plaintiff refused the lab draw again. (Filing No.

43-1 at CM/ECF p. 122.)

101. On November 2, 2017, P.A. Danaher met with Plaintiff to discuss labs

and pain management. (Filing No. 43-1 at CM/ECF pp. 123-24.) P.A. Danaher

ordered 1200 mg Gabapentin to be continued but indicated it would eventually

decrease to two times per day. (Filing No. 43-1 at CM/ECF p. 124.) P.A. Danaher

offered Plaintiff a B12 injection and to be evaluated by Dr. Kasselman, and Plaintiff

agreed to both. (Filing No. 43-1 at CM/ECF p. 124.)

102. On November 7, 2017, Plaintiff received an X-ray after reporting

headaches. (Filing No. 43-1 at CM/ECF p. 125.) No definite radiographic

explanation for headaches was found. (Filing No. 43-1 at CM/ECF p. 125.)

103. On November 16, 2017, Dr. Hustad met with Plaintiff to discuss issues

with rectal bleeding, neuropathic pain in his feet, and pain radiating from his neck

into his hand. (Filing No. 43-1 at CM/ECF pp. 126-27.) Dr. Hustad noted Plaintiff

“continues to do a lot of exercises working on ‘a monkey bar.’” (Filing No. 43-1 at

CM/ECF p. 126.) Dr. Hustad noted Plaintiff has “excellent strength of upper

extremities and grip bilaterally” and has “[n]o motor weakness.” (Filing No. 43-1 at

CM/ECF p. 126.) Dr. Hustad instructed Plaintiff to discontinue working out with a

monkey bar or performing pull-ups. (Filing No. 43-1 at CM/ECF p. 127.) Dr. Hustad

made a note to discuss Plaintiff’s medications with P.A. Danaher. (Filing No. 43-1

at CM/ECF p. 127.)

104. On December 7, 2017, Plaintiff was seen by Dr. Kasselman at the pain

clinic. (Filing No. 43-1 at CM/ECF p. 128.) P.A. Danaher ordered Gabapentin be

tapered off and discontinued and prescribed a muscle relaxer (Flexeril) for three

weeks and Indocin 25 mg twice per day. (Filing No. 43-1 at CM/ECF p. 128.)

105. On December 15, 2017, Plaintiff received a medical equipment pass for

“hot packs.” (Filing No. 43-1 at CM/ECF p. 129.)

106. On December 18, 2017, P.A. Danaher met with Plaintiff to discuss pain

management and trigger point injections to help treat his pain. (Filing No. 43-1 at

CM/ECF pp. 130-32.) Plaintiff expressed that he was upset his prescription for

Gabapentin was being discontinued. (Filing No. 43-1 at CM/ECF p. 131.) P.A.

Danaher noted Plaintiff claimed to have continuous pain throughout his body (feet,

back, elbows, etc.) while on the maximum dose of Gabapentin and this was why Dr.

Kasselman recommended “he come off the Gabapentin.” (Filing No. 43-1 at

CM/ECF p. 131.) P.A. Danaher instead offered Plaintiff Indomethacin for pain as

Dr. Kasselman recommended. (Filing No. 43-1 at CM/ECF p. 131.) Plaintiff agreed

to take it. (Filing No. 43-1 at CM/ECF p. 131.) P.A. Danaher informed Plaintiff they

probably would never be able to make him completely pain free but could provide

some comfort with their treatment plans. (Filing No. 43-1 at CM/ECF p. 131.)

Plaintiff agreed to try trigger point injections. (Filing No. 43-1 at CM/ECF p. 131.)

107. On December 21, 2017, prior to signing the consent for his injections,

Plaintiff and P.A. Danaher met to discuss the injections. (Filing No. 43-1 at CM/ECF

p. 133.) Plaintiff and P.A. Danaher went into an exam room, and P.A. Danaher

reviewed with Plaintiff his X-rays from December 19, 2017. (Filing No. 43-1 at

CM/ECF p. 133.) Plaintiff became argumentative when P.A. Danaher informed

Plaintiff that his newly alleged mid-back pain was not consistent with the X-ray

findings. (Filing No. 43-1 at CM/ECF p. 133.) Plaintiff responded that P.A. Danaher

did not know what he was doing. (Filing No. 43-1 at CM/ECF p. 133.) P.A. Danaher

responded by saying medical had been addressing multiple pain issues with Plaintiff

regarding his back, elbows, feet, and headaches. (Filing No. 43-1 at CM/ECF p.

133.) Plaintiff began to curse and “got out of chair without difficulty and walked out

of exam room.” (Filing No. 43-1 at CM/ECF p. 134.)

108. On December 27, 2017, P.A. Danaher and Dr. Hustad prescribed

Cyclobenzaprine 10 mg twice daily for pain. (Filing No. 43-1 at CM/ECF p. 135.)

109. On January 11, 2018, Plaintiff was admitted to the skilled nursing

facility at DEC after reporting he “twisted and heard [a] ‘loud pop’” in the middle

of his back and passed out. (Filing No. 43-1 at CM/ECF p. 137.) Plaintiff received

an intramuscular injection of Toradol 60 mg for the pain. (Filing No. 43-1 at

CM/ECF p. 138.) Dr. Hustad recommended continued bedrest through the weekend,

but Plaintiff refused because he had a family visit scheduled. (Filing No. 43-1 at

CM/ECF p. 139.)

110. On January 12, 2018, Plaintiff was examined by Dr. Hustad and

received an X-ray which revealed that his mild anterior wedging of T11 was

unchanged from prior exams and that there was no acute osseous abnormality or

malalignment elsewhere in the thoracic spine. (Filing No. 43-1 at CM/ECF p. 140.)

111. On January 12, 2018, Plaintiff received a “Medical Limited Activity”

pass which restricted physical exertion, lifting greater than 0 pounds, and contact

and non-contact sports. (Filing No. 43-1 at CM/ECF p. 142.)

112. On January 18, 2018, Plaintiff met with medical about his back pain.

(Filing No. 43-1 at CM/ECF p. 143.) Plaintiff stated Gabapentin “did help but did

not ‘cure [the] problem.’” (Filing No. 43-1 at CM/ECF p. 143.)

113. On February 2, 2018, P.A. Danaher met with Plaintiff to discuss back

and foot pain, as well as wrist pain after he allegedly fell on the ice on January 29,

2018. (Filing No. 43-1 at CM/ECF p. 144.) Plaintiff indicated he was not taking his

psych meds except for Hydroxyzine. (Filing No. 43-1 at CM/ECF p. 144.) Plaintiff

stated he was not receiving any benefit from his prescription of Flexeril for pain.

(Filing No. 43-1 at CM/ECF p. 145.) P.A. Danaher offered to switch him to Robaxin,

but Plaintiff declined. (Filing No. 43-1 at CM/ECF p. 145.) P.A. Danaher offered

NSAIDs and named various types for Plaintiff: Motrin, Naproxen, Indocin, Mobic.

(Filing No. 43-1 at CM/ECF p. 145.) Plaintiff stated that none of these medications

helped him in the past. (Filing No. 43-1 at CM/ECF p. 145.) Plaintiff reiterated that

the only medications that have helped his pain are Gabapentin and Tramadol. (Filing

No. 43-1 at CM/ECF p. 145.) Plaintiff went on to repeat his previous injuries over

the years causing his chronic pain. (Filing No. 43-1 at CM/ECF p. 145.) P.A.

Danaher explained that this was unfortunate, but narcotics were not the answer.

(Filing No. 43-1 at CM/ECF p. 145.) P.A. Danaher explained that he had discussed

Plaintiff’s chronic pain management with Plaintiff’s psychiatrist, Dr. Howard, and

that he could schedule Plaintiff for a follow-up with Dr Kasselman. (Filing No. 43-

1 at CM/ECF p. 145.) Plaintiff stated again that Tramadol and Gabapentin would be

the only prescription that would help him. (Filing No. 43-1 at CM/ECF p. 145.) P.A.

Danaher informed Plaintiff that he would not prescribe either. (Filing No. 43-1 at

CM/ECF p. 145.) P.A. Danaher noted that during his discussion with Plaintiff, he

did not appear in any distress, was moving his wrists and hands freely, and was

making gestures without signs of pain or limitation. (Filing No. 43-1 at CM/ECF p.

146.) P.A. Danaher also noted Plaintiff walked in and sat down without evidence of

limitation or distress. (Filing No. 43-1 at CM/ECF p. 146.) Upon leaving his

appointment, Plaintiff used both hands to push off the chair arms without any

problems. (Filing No. 43-1 at CM/ECF p. 146.)

114. On February 15, 2018, Plaintiff met with Psychiatrist Dr. Howard and

changed his prescription to Abilify for depression. (Filing No. 43-1 at CM/ECF p.

147.) Plaintiff did not complain about pain during the visit with Dr. Howard until

she asked him about it. (Filing No. 43-1 at CM/ECF p. 147.) Dr. Howard

recommended mental health therapy to help deal with chronic pain issues. (Filing

No. 43-1 at CM/ECF p. 147.)

115. On February 15, 2018, Plaintiff met with Dr. Kasselman for a pain

clinic consultation. (Filing No. 43-1 at CM/ECF p. 148.) Plaintiff informed Dr.

Kasselman he had a five-year-old wedge compression that was causing his pain.

(Filing No. 43-1 at CM/ECF p. 148.) Plaintiff also claimed his wrist was dislocated.

(Filing No. 43-1 at CM/ECF p. 148.) Plaintiff complained of receiving inadequate

care. (Filing No. 43-1 at CM/ECF p. 148.) Dr. Kasselman noted Plaintiff’s

complaints did not correlate with any physical findings. (Filing No. 43-1 at CM/ECF

p. 148.) Plaintiff complained of something “moving” in his back. (Filing No. 43-1

at CM/ECF p. 148.) When Dr. Kasselman explained possible sources, Plaintiff

became belligerent. (Filing No. 43-1 at CM/ECF p. 148.) Dr. Kasselman could not

find any obvious sources of Plaintiffs “10/10” reported pain. (Filing No. 43-1 at

CM/ECF p. 148.) Plaintiff refused the solutions Dr. Kasselman offered, but

requested Gabapentin, Lyrica, or narcotics. (Filing No. 43-1 at CM/ECF p. 148.) Dr.

Kasselman offered physical therapy, trigger point injections, and NSAIDs. (Filing

No. 43-1 at CM/ECF p. 148.) Plaintiff refused everything and left angrily. (Filing

No. 43-1 at CM/ECF p. 148.) Plaintiff was instructed to submit an IIR if he wanted

to have injections. (Filing No. 43-1 at CM/ECF p. 147.) Plaintiff declined NSAIDs.

(Filing No. 43-1 at CM/ECF p. 147.)

116. On March 7, 2018, Plaintiff received an X-ray on his left wrist. (Filing

No. 43-1 at CM/ECF p. 149.) No acute fracture or dislocation of the left wrist was

observed. (Filing No. 43-1 at CM/ECF p. 149.)

117. On March 7, 2018, Plaintiff submitted an IIR to try Meloxicam for his

pain. (Filing No. 43-1 at CM/ECF p. 150.) Medical ordered it for him. (Filing No.

43-1 at CM/ECF p. 150.)

118. On March 23, 2018, P.A. Danaher saw Plaintiff regarding pain in his

wrists. (Filing No. 43-1 at CM/ECF p. 151.) Plaintiff stated he wanted a second

opinion for his chronic pain. (Filing No. 43-1 at CM/ECF p. 151.) P.A. Danaher

informed Plaintiff he would present it to the NDCS medical review committee.

(Filing No. 43-1 at CM/ECF p. 152.) Plaintiff also requested a “lay-in” from his job.

(Filing No. 43-1 at CM/ECF p. 151.) P.A. Danaher agreed to give Plaintiff a pass

for limited activity for 60 days. (Filing No. 43-1 at CM/ECF p. 152.) This pass

excused Plaintiff from standing for lengthy periods, lifting anything exceeding 10

pounds, performing any work above his head, and pushing or pulling; the pass also

ordered minimized wrist activities. (Filing No. 43-1 at CM/ECF p. 152.)

119. On March 29, 2018, P.A. Danaher noted that he had Plaintiff on a list

to be seen by Dr. Kasselman for a reevaluation and that he would present Plaintiff’s

issues at the next provider meeting. (Filing No. 43-1 at CM/ECF p. 153.)

120. On April 12, 2018, Dr. Kasselman saw Plaintiff at the pain clinic.

(Filing No. 43-1 at CM/ECF p. 154.) After examination, Dr. Kasselman ordered

Naproxen 500 mg for pain. (Filing No. 43-1 at CM/ECF p. 154.) P.A. Danaher

ordered activity restrictions to include limited bending, stooping, pushing and

pulling, not lifting greater than 20 pounds, no sports activity, and limited repetitive

movements. (Filing No. 43-1 at CM/ECF p. 154.) This activity restriction was

prescribed for one year. (Filing No. 43-1 at CM/ECF p. 154.)

121. On May 21, 2018, Plaintiff submitted an IIR requesting to try

Indomethacin for pain. (Filing No. 43-1 at CM/ECF p. 155.) On May 24, 2018, P.A.

Danaher ordered the Indomethacin and informed Plaintiff to stop the Naproxen.

(Filing No. 43-1 at CM/ECF p. 155.)

122. On May 30, 2018, Plaintiff received a “Medical Limited Activity” pass

restricting Plaintiff from standing for periods longer than 30 minutes, lifting

anything greater than 20 pounds, bending or stooping, participating in contact or

non-contact sports, and performing repetitive movements of the upper extremities.

(Filing No. 43-1 at CM/ECF p. 156.)

123. On June 8, 2018, P.A. Danaher met with Plaintiff for hand, foot, and

back pain. (Filing No. 43-1 at CM/ECF p. 157-58.) Plaintiff said he did not receive

any benefit from Duloxetine. (Filing No. 43-1 at CM/ECF p. 157.) P.A. Danaher

noted Plaintiff was currently on Flexeril 50 mg, but Plaintiff said it was not helping

with the pain. (Filing No. 43-1 at CM/ECF p. 157.) P.A. Danaher noted that during

the exam, Plaintiff did not appear in distress, ambulated to exam room without

difficulty, sat and stood without problem, removed shoes and socks without

difficulty, and showed no signs of discomfort. (Filing No. 43-1 at CM/ECF p. 158.)

P.A. Danaher noted that he would email Plaintiff’s psychiatrist, Dr. Anit, APRN

Chipendo, and Dr. Hustad regarding a joint consultation to meet with Plaintiff and

discuss chronic pain management. (Filing No. 43-1 at CM/ECF p. 158.)

124. On June 14, 2018, P.A. Danaher, Dr. Hustad, Dr. Anit, APRN

Chipendo, and RN Wright met to discuss Plaintiff’s pain management. (Filing No.

43-1 at CM/ECF p. 159.) During this meeting, Plaintiff’s chart was reviewed with

specific reference to Dr. Kasselman’s notes. (Filing No. 43-1 at CM/ECF p. 159.)

This team noted Plaintiff had seen mental health providers regarding issues with

anxiety and chronic pain. (Filing No. 43-1 at CM/ECF p. 159.) Plaintiff had been

treated with different medications and reported no benefit. (Filing No. 43-1 at

CM/ECF p. 159.) The team discussed recommendations for future treatment,

including: (1) referral to mental health for evaluation for chronic pain management

and Cognitive Behavioral Therapy; (2) discuss physical therapy; (3) offer NSAIDs;

and (4) meet with Dr. Anit and discuss psychiatric treatment. (Filing No. 43-1 at

CM/ECF p. 159.)

125. On June 21, 2018, Plaintiff’s prescription for Amitriptyline was

discontinued because Plaintiff was not taking it. (Filing No. 43-1 at CM/ECF p. 160.)

126. On June 22, 2018, Plaintiff requested a refill of Indomethacin, which

was immediately ordered. (Filing No. 43-1 at CM/ECF p. 161.)

127. On July 24, 2018, Plaintiff was to be seen by Dr. Kasselman at the pain

clinic. (Filing No. 43-1 at CM/ECF p. 162.) Dr. Kasselman expressed concern that

Plaintiff exhibited drug seeking behavior but noted that Plaintiff had tried other

conservative measures for pain management. (Filing No. 43-1 at CM/ECF p. 162.)

Dr. Kasselman ordered a trial of Gabapentin no higher than 800 mg twice a day.

(Filing No. 43-1 at CM/ECF p. 162.) Dr. Kasselman informed Plaintiff that the trial

was conditioned upon his compliance with medical and lab draws. (Filing No. 43-1

at CM/ECF p. 162.) Dr. Kasselman ordered that Gabapentin levels be tested in two

weeks. (Filing No. 43-1 at CM/ECF p. 162.)

128. On July 24, 2018, Plaintiff informed P.A. Danaher that Plaintiff’s

custom orthotics were taken by custody staff and were never returned. (Filing No.

43-1 at CM/ECF p. 163.) P.A. Danaher made a note to the Deputy Warden that the

orthotics should be reissued to Plaintiff. (Filing No. 43-1 at CM/ECF p. 163.)

129. On August 1, 2018, Plaintiff had a medical appointment for oral and

facial surgery from an outside medical provider. (Filing No. 43-1 at CM/ECF p.

164.)

130. On August 1, 2018, Plaintiff submitted an IIR complaining his right

hand was in pain with arthritis. (Filing No. 43-1 at CM/ECF p. 165.) The next day,

on August 2, 2018, P.A. Danaher informed Plaintiff that he reordered Indomethacin

to take as needed for pain and would order X-rays. (Filing No. 43-1 at CM/ECF p.

165.)

131. On August 16, 2018, Plaintiff received an X-ray of his right hand.

(Filing No. 43-1 at CM/ECF p. 166.) No acute fracture or destructive lesion was

identified. (Filing No. 43-1 at CM/ECF p. 166.) Chronic findings appeared to be

posttraumatic with no acute abnormalities observed. (Filing No. 43-1 at CM/ECF p.

166.)

132. On August 31, 2018, P.A. Danaher saw Plaintiff for wrist, hand, and

back pain. (Filing No. 43-1 at CM/ECF p. 167.) Plaintiff said he had “a little benefit”

with the Gabapentin, but still in pain. (Filing No. 43-1 at CM/ECF p. 167.) Plaintiff

made no mention of his back or leg pain during the visit. (Filing No. 43-1 at CM/ECF

p. 168.) Based upon lab results, P.A. Danaher expressed concern that Plaintiff was

not taking his prescription of Gabapentin as directed. (Filing No. 43-1 at CM/ECF

p. 169.) Plaintiff stated he was taking it regularly. (Filing No. 43-1 at CM/ECF p.

169.) P.A. Danaher noted Plaintiff had not filled his prescription for Indocin since

June of 2018. (Filing No. 43-1 at CM/ECF p. 169.) When asked about this, Plaintiff

said it caused gastrointestinal side effects. (Filing No. 43-1 at CM/ECF p. 169.) P.A.

Danaher reviewed with Plaintiff other NSAIDs available. (Filing No. 43-1 at

CM/ECF p. 169.) Plaintiff requested Ibuprofen. (Filing No. 43-1 at CM/ECF p. 169.)

P.A. Danaher asked if Plaintiff had been involved in Cognitive Behavioral Therapy,

and Plaintiff reported that he had not. (Filing No. 43-1 at CM/ECF p. 169.) Plaintiff

stated that mental health told him about TENS therapy, but P.A. Danaher informed

Plaintiff that it would only be provided through physical therapy. (Filing No. 43-1

at CM/ECF p. 169.) P.A. Danaher also noted Plaintiff was on Topamax which was

being used for chronic pain management. (Filing No. 43-1 at CM/ECF p. 169.) P.A.

Danaher noted Plaintiff did not appear to be in any distress during the visit. (Filing

No. 43-1 at CM/ECF p. 170.) Plaintiff walked, stood, and sat without difficulty.

(Filing No. 43-1 at CM/ECF p. 170.) P.A. Danaher ordered Ibuprofen and the

discontinuation of Indocin. (Filing No. 43-1 at CM/ECF p. 170.) P.A. Danaher noted

that Gabapentin would be continued, even though low therapeutic levels were found

in his labs. (Filing No. 43-1 at CM/ECF p. 170.) New levels would be taken in three

weeks. (Filing No. 43-1 at CM/ECF p. 170.) P.A. Danaher encouraged Plaintiff to

discuss chronic pain management with mental health. (Filing No. 43-1 at CM/ECF

p. 170.)

133. On August 31, 2018, medical gave Plaintiff a medical equipment pass

for a wrist brace. (Filing No. 43-1 at CM/ECF p. 171.)

134. On September 10, 2018, P.A. Danaher met with Plaintiff to discuss his

September 7, 2018 IIR requesting support stockings to help with his neuropathy.

(Filing No. 43-1 at CM/ECF p. 172.) Because there were no contraindications for

Thrombo-Embolic Deterrent (TED) stockings, and because Plaintiff believed it

would be beneficial for his neuropathy, P.A. Danaher agreed to prescribe the

stockings. (Filing No. 43-1 at CM/ECF pp. 172-73.) P.A. Danaher instructed

Plaintiff on the TED stocking application and use. (Filing No. 43-1 at CM/ECF p.

172.)

135. On October 17, 2018, Dr. Kasselman saw Plaintiff at the pain clinic.

(Filing No. 43-1 at CM/ECF p. 174.) Dr. Kasselman ordered Plaintiff’s prescription

for Ibuprofen be increased to 800 mg. (Filing No. 43-1 at CM/ECF p. 174.)

136. On October 30, 2018, while walking down a hallway at LCC, P.A.

Danaher looked out a window to the internal exercise yard where he saw Plaintiff

doing hyper extension sit-ups at the sit-up station. (Filing No. 43-1 at CM/ECF p.

175.) Plaintiff did at least five sit-ups without evidence of distress. (Filing No. 43-1

at CM/ECF p. 175.) P.A. Danaher then saw Plaintiff do full body arm lifts at a

separate station. (Filing No. 43-1 at CM/ECF p. 175.) Plaintiff did five body lifts

then moved back to the sit-up station where Plaintiff did at least five more

hyperextension sit-ups without distress. (Filing No. 43-1 at CM/ECF p. 175.)

137. On November 5, 2018, Plaintiff failed to attend his scheduled medical

appointment. (Filing No. 43-1 at CM/ECF p. 176.)

138. On November 18, 2018, P.A. Danaher confronted Plaintiff during a

medical appointment about seeing Plaintiff exercising on the weight yard doing

hyperextension sit-ups and body lifts. (Filing No. 43-1 at CM/ECF pp. 176, 177.)

Plaintiff did not deny doing the exercises and explained he was trying to increase

exercise to lower his sugar levels. (Filing No. 43-1 at CM/ECF pp. 176, 177.) P.A.

Danaher explained to Plaintiff he was concerned about Plaintiff’s pain complaints

while he was engaging in activities that aggravated his problems, and Plaintiff

replied, “I know.” (Filing No. 43-1 at CM/ECF pp. 177-78.)

139. On November 19, 2018, Plaintiff was seen in the exercise yard doing

butterfly and upper-body workouts with heavy weights without evidence of distress.

(Filing No. 43-1 at CM/ECF p. 179.)

140. On March 6, 2019, Plaintiff underwent surgery to address septal

deviation and sinusitis. (Filing No. 43-1 at CM/ECF p. 180.)

141. On March 7, 2019, Plaintiff received a Medical Limited Activity pass

which restricted physical exertion, standing for periods longer than 10 minutes,

lifting anything greater than 0 pounds, bending or stooping, participating in contact

or non-contact sports (including weightlifting, basketball, and handball), heavy

lifting, and vigorous activities for two weeks. (Filing No. 43-1 at CM/ECF p. 181.)

142. On March 18, 2019, Plaintiff was seen by multiple NDCS staff,

including P.A. Danaher, in the exercise yard engaging in strenuous exercises,

including doing butterfly-type repetitions on a weight machine with fairly heavy

weights with a spotter assisting him, doing twenty repetitions at a time on the bench

press machine for approximately twenty minutes, and doing approximately ten

repetitions at a time of push-ups/burpees. (Filing No. 43-1 at CM/ECF pp. 183-86,

190.) Plaintiff did not appear in any pain or distress while doing these exercises.

(Filing No. 43-1 at CM/ECF pp. 183-86, 190.)

143. On March 19, 2019, Plaintiff was seen in the exercise yard lifting

weights on the leg press machine doing approximately 10-15 repetitions at a time.

(Filing No. 43-1 at CM/ECF pp. 186-88.) Plaintiff was also using a weight machine

which caused him to bend and twist using his shoulders, back, and arms. (Filing No.

43-1 at CM/ECF pp. 186-88.) Plaintiff was seen doing this with full range of motion

without any difficulty. (Filing No. 43-1 at CM/ECF pp. 186-88.)

144. On March 21, 2019, P.A. Danaher watched Plaintiff in the exercise yard

doing multiple repetitions on weight machines with a fairly large amount of weight.

(Filing No. 43-1 at CM/ECF p. 190.) After he completed his repetitions, Plaintiff

jumped up and walked around briskly without any distress. (Filing No. 43-1 at

CM/ECF p. 190.)

145. On March 22, 2019, P.A. Danaher saw from the medical clinic window

Plaintiff engaging in weightlifting with multiple repetitions on an arm machine.

(Filing No. 43-1 at CM/ECF p. 191.)

146. On April 5, 2019, Plaintiff failed to show for his scheduled medical

appointment. (Filing No. 43-1 at CM/ECF p. 191.) P.A. Danaher observed Plaintiff

in the exercise yard lifting weights during the time he was scheduled for his

appointment. (Filing No. 43-1 at CM/ECF p. 191.)

147. On April 12, 2019, P.A. Danaher met with Plaintiff for a medical

appointment regarding pain from (1) ganglions in wrist, (2) fracture in T11, and (3)

neuropathy in feet. (Filing No. 43-1 at CM/ECF p. 192.) Plaintiff walked in and sat

down in the exam room without apparent distress. (Filing No. 43-1 at CM/ECF p.

192.) P.A. Danaher informed Plaintiff that he watched Plaintiff in the exercise yard

the previous week doing a strenuous work out without apparent distress from his

wrists, back, or feet. (Filing No. 43-1 at CM/ECF p. 192.) Plaintiff became defensive

and stated he “had to exercise for his diabetes.” (Filing No. 43-1 at CM/ECF p. 192.)

P.A. Danaher explained to Plaintiff that what he witnessed was “bodybuilding,

exercising very strenuously which [was] totally contradictory to his health and

extremely detrimental to the health issues he [was] complaining about.” (Filing No.

43-1 at CM/ECF p. 192.) P.A. Danaher informed Plaintiff that he had multiple

incident reports that Plaintiff jogs and lifts weights in the gym and was on a

volleyball team. (Filing No. 43-1 at CM/ECF p. 192.) P.A. Danaher told Plaintiff

that he would not change his current medications and the best treatment plan is to

restrict his activity—meaning no gym, no yard, no weightlifting. (Filing No. 43-1 at

CM/ECF p. 192.) Plaintiff became argumentative and again reiterated he had to

exercise for his diabetes. (Filing No. 43-1 at CM/ECF p. 193.) P.A. Danaher

explained to Plaintiff that bodybuilding was not the proper exercise. (Filing No. 43-

1 at CM/ECF p. 193.) Plaintiff confirmed to P.A. Danaher that he was not willing to

change his exercise routine. (Filing No. 43-1 at CM/ECF p. 193.) Plaintiff then asked

if P.A. Danaher would send him to a specialist for his ganglions and foot pain. (Filing

No. 43-1 at CM/ECF p. 193.) P.A. Danaher responded that it was not clinically

indicated and that he needed to stop such strenuous exercises, volleyball, and other

sports so that his pain would improve. (Filing No. 43-1 at CM/ECF p. 193.) Plaintiff

left the exam room without any apparent distress. (Filing No. 43-1 at CM/ECF p.

193.)

III. STANDARD OF REVIEW

“The court shall grant summary judgment 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 movant bears the initial responsibility of

informing the court of the basis for the motion and must identify those portions of

the record which the movant believes demonstrate the absence of a genuine issue of

material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)

(en banc). If the movant does so, the nonmovant must respond by submitting

evidentiary materials that set out specific facts showing that there is a genuine issue

for trial. Id.

On a motion for summary judgment, facts must be viewed in the light most

favorable to the nonmoving party only if there is a genuine dispute as to those facts.

Id. Credibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the evidence are jury functions, not those of a judge. Id.

But the nonmovant must do more than simply show that there is some metaphysical

doubt as to the material facts. Id. In order to show that disputed facts are material,

the party opposing summary judgment must cite to the relevant substantive law in

identifying facts that might affect the outcome of the suit. Quinn v. St. Louis County,

653 F.3d 745, 751 (8th Cir. 2011).

The mere existence of a scintilla of evidence in support of the nonmovant’s

position will be insufficient; there must be evidence on which the jury could

conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656

F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead

a rational trier of fact to find for the nonmoving party, there is no genuine issue for

trial. Torgerson, 643 F.3d at 1042.

IV. DISCUSSION

A. Deliberate Indifference to Serious Medical Needs

To prevail on an Eighth Amendment claim, Plaintiff must prove that

Defendants acted with deliberate indifference to his serious medical needs. See

Estelle v. Gamble, 429 U.S. 97, 106 (1976). The deliberate-indifference standard

includes both an objective and a subjective component. Plaintiff must demonstrate

that (1) he suffered from objectively serious medical needs, and (2) Defendants knew

of, but deliberately disregarded, those needs. See Jolly v. Knudsen, 205 F.3d 1094,

1096 (8th Cir. 2000) (quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.

1997)).

“For a claim of deliberate indifference, ‘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.’” Popoalii v. Corr.

Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008) (quoting Estate of Rosenberg v.

Crandell, 56 F.3d 35, 37 (8th Cir. 1995)); see also Bender v. Regier, 385 F.3d 1133,

1137 (8th Cir. 2004) (a prisoner’s mere disagreement with the course of his medical

treatment fails to state a claim against a prison physician for deliberate indifference

under the Eighth Amendment). Indeed, “[e]stablishing the subjective component of

a deliberate indifference claim requires showing ‘a mental state akin to criminal

recklessness.’” Ryan v. Armstrong, 850 F.3d 419, 425 (8th Cir. 2017) (quoting

Thompson v. King, 730 F.3d 742, 746–47 (8th Cir. 2013)).

“The plaintiff-inmate must clear a substantial evidentiary threshold to show

that the prison’s medical staff deliberately disregarded the inmate’s needs by

administering an inadequate treatment.” Meuir v. Greene Cnty. Jail Emps., 487 F.3d

1115, 1118 (8th Cir. 2007). The Eighth Circuit has held that prison medical

professionals do not act with deliberate indifference where they do not ignore a

prisoner’s complaints but exercise independent medical judgment and attempt to

treat them in a manner other than the precise manner the prisoner requests. See Allard

v. Baldwin, 779 F.3d 768, 772 (8th Cir. 2015) (granting summary judgment to

medical defendants who did not ignore inmate’s complaints, but saw inmate on

several occasions and tried numerous treatments); Logan v. Clarke, 119 F.3d 647,

649-50 (8th Cir. 1997) (prison doctors were not deliberately indifferent where they

treated prisoner on numerous occasions and offered sensible medication and

treatment).

The court finds that the undisputed material facts demonstrate that Defendants

were not deliberately indifferent to any serious medical needs of Plaintiff. To the

contrary, the facts show that from the time Plaintiff entered NDCS custody in March

2014 through the end of the time period under consideration, NDCS expended

significant resources in attempting to get to the root of Plaintiff’s chronic pain. He

was seen within NDCS a countless number of times by NDCS medical staff,

including P.A. Danaher, Dr. Hustad, and Dr. Kasselman. Plaintiff was referred on

several separate occasions to outside specialists, including orthopedic surgeons and

neurological and spinal surgeons for further evaluations and surgical consultations.

Plaintiff also was seen by Dr. Kasselman at the NDCS pain clinic. Numerous

diagnostic tests were run, including a number of X-rays and MRIs. Plaintiff has been

prescribed physical therapy, over-the-counter arch support insoles, special ordered

shoes, custom molded orthotics, TENS unit with wires and electrodes, and

thrombosis stockings to help alleviate his pain. In addition, while Plaintiff has been

in NDCS custody, the medical records indicate that Plaintiff was prescribed or

offered various medications for pain control, including Flexeril (cyclobenzaprine),

Tramadol, Gabapentin, Methocarbamol, Indomethacin, Naproxen, Ketorolac,

Amitriptyline, Meloxicam, Topamax, Pyriodoxine, Duloxetine, Mobic, Indocin,

Robaxin, B12 shots, and other anti-inflammatory medications. (Filing No. 43-5 at

CM/ECF p. at 2, ¶ 4.)

At least on a gross basis, this hardly smacks of deliberate indifference.

Plaintiff complains, however, that Defendants acted with deliberate

indifference when they prescribed Gabapentin for his pain, rather than Lyrica as was

recommended by an outside specialist, and when they tapered off and then

discontinued his prescription pain medication. Plaintiff further claims that, although

he was back on Gabapentin as of July 31, 2018, he is still in extreme pain and

medical is refusing to provide necessary medical treatment.

With respect to Plaintiff’s complaint that Defendants acted with deliberate

indifference when they did not prescribe him the specific pain medication

recommended by an outside specialist, the court disagrees. The record reflects that,

on August 7, 2017, an outside orthopedic specialist indicated that Plaintiff was

currently taking Gabapentin 300 mg and recommended that Plaintiff be prescribed

Lyrica or that his Gabapentin dosage be increased. Specifically, the provider noted:

“I would encourage [Plaintiff] to talk to the medical personnel there about possibly

switching him from [G]abapentin to Lyrica or if possible increase the dose of his

Gabapentin” for his foot pain. (Filing No. 43-1 at CM/ECF p. 109 (emphasis

added).) On August 28, 2017, P.A. Danaher saw Plaintiff and noted the specialist’s

recommendation and that Plaintiff was currently taking Gabapentin 1200 mg three

times a day (3600 mg total) in addition to Tramadol. Thus, the record indicates that

Plaintiff’s Gabapentin prescription either had been increased per the specialist’s

recommendation or was already at a higher dosage than what the specialist indicated.

Moreover, the decisions by P.A. Danaher, Dr. Hustad, and Dr. Kasselman not to

prescribe Lyrica were no more than mere disagreements with the course of treatment

prescribed, and not deliberate indifference. See Bender, 385 F.3d at 1137.

The undisputed facts further establish that the decisions and recommendations

of P.A. Danaher, Dr. Hustad, and Dr. Kasselman regarding Plaintiff’s pain

management, including tapering off and discontinuing Plaintiff’s prescription pain

medications, were clearly based on their independent medical judgment. See Long

v. Nix, 86 F.3d 761, 765 (8th Cir. 1996) (“[N]othing in the Eighth Amendment

prevents prison doctors from exercising their independent medical judgment.”).

Specifically, the summary judgment record shows that, in addition to reporting

minimal benefit from the pain medication, Plaintiff’s description of pain did not

correlate to objective medical evidence or to Plaintiff’s level of physical mobility

and activity. (See generally Filing No. 43-1; Filing No. 43-4 (Declaration of Dr.

Kasselman); Filing No. 43-5 (Declaration of P.A. Danaher).) P.A. Danaher and Dr.

Kasselman submitted declarations that elucidate the rationale of their treatment

decisions.

P.A. Danaher stated that his “medical decisions regarding how to treat

[Plaintiff]” have “always been informed by” (1) subjective factors, such as the

symptoms Plaintiff reported, and (2) objective factors, such as the results of X-rays,

MRIs, and physical examinations, Plaintiff’s medical history, and P.A. Danaher’s

observations of Plaintiff’s mobility and “apparent distress—or lack thereof—when

engaging in physical activity.” (Filing No. 43-5 at CM/ECF at p. 3, ¶ 5.) P.A.

Danaher further explained that Plaintiff’s ability to play handball and volleyball,

“aggressively lift[] weights,” perform “body exercises on the machines,” and jog

was “not consistent with his physical complaints.” (Filing No. 43-5 at CM/ECF at p.

4, ¶ 8.) Based on Plaintiff’s physical activities, “objective findings on physical

examinations,” and Plaintiff’s reports of “minimal benefit” from Tramadol and

Gabapentin, P.A. Danaher determined that continuation of these prescriptions was

not indicated and that Plaintiff should try “alternate means of treatment.” (Filing No.

43-5 at CM/ECF at p. 3, ¶ 5.) P.A. Danaher also decided that trigger point injections

should not be used until Plaintiff “cooperated with limiting his activities,” because

he could be further injured if he continued his physical activities after the injections.

(Filing No. 43-5 at CM/ECF at p. 4, ¶ 9.)

Similarly, Dr. Kasselman, who saw Plaintiff at the pain clinic but was not

Plaintiff’s primary health care provider and could only make suggestions as to his

treatment, (filing no. 43-4 at CM/ECF p. 3, ¶ 10), stated that when he examined

Plaintiff, he “could not find any sources of his ‘10/10’ reported pain” (filing no. 43-

4 at CM/ECF p. 3, ¶ 8). Dr. Kasselman explained that Plaintiff “refused the solutions

offered, but requested Gabapentin, Lyrica, or other narcotics, none of which [were]

appropriate for the type of pain that [Plaintiff] was describing to [him].” (Filing No.

43-4 at CM/ECF p. 3, ¶ 8.) Specifically, Dr. Kasselman opined that Plaintiff’s back

pain and arthritis-type wrist pain could be resolved by an “over the counter

analgesic” and that Gabapentin was not “appropriate” to address such pain. (Filing

No. 43-4 at CM/ECF p. 2, ¶¶ 5, 6.) Indeed, when Dr. Kasselman first met Plaintiff,

“he was on high doses of Tramadol and Gabapentin” but “reported very little benefit

from those medications.” (Filing No. 43-4 at CM/ECF p. 2, ¶ 4.) Considering these

factors, Dr. Kasselman recommended that Plaintiff discontinue “his very extensive

workouts on the weight pile as well as handball and other high-intensity sports,”

which could exacerbate his pain, and that Plaintiff begin a “more gentle exercise

program that consisted of brisk walking, stretching, and yoga type of exercise.”

(Filing No. 43-4 at CM/ECF pp. 2-3, ¶ 7.) Finally, Dr. Kasselman noted that,

although trigger point injections can help relax spasming muscles caused by a “bad

back” or arthritis in the spine, Plaintiff’s failure to follow exercise restrictions makes

the injections “far from ideal, and, in fact, could risk further injury.” (Filing No. 43-

4 at CM/ECF p. 3, ¶ 9.)

Importantly, Plaintiff has not come forward with any evidence to refute the

statements in P.A. Danaher’s and Dr. Kasselman’s declarations that this course of

care was medically appropriate. See Reid v. Griffin, 808 F.3d 1191, 1193 (8th Cir.

2015) (“In the face of medical records indicating that treatment was provided and

physician affidavits indicating that the care provided was adequate, an inmate cannot

create a question of fact by merely stating that she did not feel she received adequate

treatment”); Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (same).

Plaintiff’s allegation that P.A. Danaher, Dr. Hustad, and Dr. Kasselman “cut

off” or refused to provide him anything for his pain between December 7, 2017 and

July 24, 2018 is inaccurate; although Plaintiff was not prescribed Gabapentin during

this time, he was prescribed and offered other medications to alleviate his pain. (See

generally Filing No. 43-1.) See Fourte v. Faulkner Cnty., 746 F.3d 384, 390 (8th

Cir. 2014) (finding no deliberate indifference when medical providers “made efforts

to cure the problem in a reasonable and sensible manner”). That Plaintiff was not

prescribed the pain narcotic of his choice is of no consequence. Plaintiff does not

have a constitutional right to a particular type of pain medication, and P.A. Danaher,

Dr. Hustad, and Dr. Kasselman did not violate the Eighth Amendment when, in the

exercise of their professional judgment, they refused to implement Plaintiff’s

requested course of treatment and instead prescribed and offered numerous

alternative pain medications and treatments. See Allard, 779 F.3d at 772; Logan,

119 F.3d at 649-50; Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996). There is no

evidence that Plaintiff’s pain complaints were ever ignored or that he was ever

without some type medication or treatment to help alleviate his pain. Furthermore,

the summary judgment record indicates that, since the filing of this lawsuit and

during the pendency of this Motion, Plaintiff has been placed back on Gabapentin

and has received medical attention and treatment. (Filing No. 15; Filing No. 43-1.)

Plaintiff claims, however, that he is still in pain. Any alleged failure to fully alleviate

Plaintiff’s pain or cure his injuries does not rise to the level of deliberate indifference.

See Logan, 119 F.3d at 649-50 (finding no deliberate indifference when prison

doctors treated the prisoner on “numerous occasions” and “made efforts to cure the

problem in a reasonable and sensible manner”).

In sum, the record clearly shows that P.A. Danaher, Dr. Hustad, and Dr.

Kasselman continually and persistently addressed Plaintiff’s pain complaints and

prescribed and offered various pain medications and pain management strategies.

There is simply no evidence that they declined to provide the medication Plaintiff

desired, or tapered and discontinued medication, because they wanted to punish him

or because they were apathetic about his well-being. Rather, they did so because, in

their medical judgment, it was in Plaintiff’s best interest. The conduct of P.A.

Danaher, Dr. Hustad, and Dr. Kasselman hardly rises to the level of criminal

recklessness necessary to establish deliberate indifference. See Ryan, 850 F.3d at

425. To the contrary, the record establishes treatment of, not deliberate indifference

to, Plaintiff’s medical conditions.

B. Respondeat Superior Liability

Plaintiff also claims that Dr. Deol, the NDCS Medical Director, was

deliberately indifferent to Plaintiff’s medical needs and “knew or should have

known” about Plaintiff’s medical needs and lack of treatment because “he oversees

all of the Department of Medical and is the one whom approves all Medical

procedures and treatments being done to any prison inmate . . . and is the one whom

told all his staff to make cuts in spending and to stop treating some things.” (Filing

No. 1 at CM/ECF p. 5; Filing No. 21 at CM/ECF p. 5, ¶ 28.)

“It is well settled that § 1983 does not impose respondeat superior liability.”

Hughes v. Stottlemyre, 454 F.3d 791, 798 (8th Cir. 2006) (internal quotation marks

omitted). To state a § 1983 claim, the plaintiff must allege that the defendant was

personally involved in or had direct responsibility for incidents that resulted in

injury. Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985). “Supervisors can,

however, ‘incur liability . . . for their personal involvement in a constitutional

violation, or when their corrective inaction amounts to deliberate indifference to or

tacit authorization of violative practices.’” Langford v. Norris, 614 F.3d 445, 460

(8th Cir. 2010) (quoting Choate v. Lockhart, 7 F.3d 1370, 1376 (8th Cir. 1993)).

Although Dr. Deol, as the Deputy Medical Director for NDCS, oversees all

aspects of healthcare within NDCS, it is undisputed that he is not (and never was)

Plaintiff’s treating physician or involved in the actual assessment and diagnosis of

Plaintiff’s medical needs. (Filing No. 43-3 at CM/ECF pp. 1-2, ¶¶ 2, 5-6 (Declaration

of Dr. Deol).) That Plaintiff has complained to Dr. Deol about not receiving the pain

medication he desires does not establish that Dr. Deol had direct involvement in

Plaintiff’s treatment decisions. Additionally, Plaintiff’s allegation that Dr. Deol

“told all his staff to make cuts in spending and to stop treating some things” (filing

no. 21 at CM/ECF p. 5, ¶ 28) is incredible and not supported by any evidence. The

record shows that in March 2017, a few months after Dr. Deol was appointed

Director of Medical Services for NDCS, he “began encouraging a policy to review

the diagnoses of inmates receiving prescription medications that are prone to abuse

in an effort to verify an inmate’s need for such medications.” (Filing No. 43-3 at

CM/ECF pp. 1-2, ¶ 3.) But Dr. Deol has “never told medical staff to stop treating

inmates for medical issues they are experiencing.” (Filing No. 43-3 at CM/ECF p.

2, ¶ 4.) Moreover, there is no indication that Dr. Doel, in his capacity as the Deputy

Medical Director of Health Services for NDCS, needs to take “corrective action” for

constitutional violations here because there are no predicate violations to correct in

the first place. See Choate, 7 F.3d at 1376. As set forth above, Plaintiff cannot show

that his treating physicians—P.A. Danaher, Dr. Hustad and Dr. Kasselman—acted

with deliberate indifference when they declined to provide the pain medication

Plaintiff desired or when they tapered off or discontinued Plaintiff’s prescribed

medication.

Thus, the court finds that the evidence fails to establish that Dr. Deol acted

with deliberate indifference.

C. Injunctive Relief

Because the court has concluded that the individual Defendants were not

deliberately indifferent to Plaintiff’s medical needs, no constitutional violations have

occurred and there is no underlying wrong for which Defendants could be enjoined.

See Falls v. Nesbitt, 966 F.2d 375, 380 (8th Cir. 1992) (“We have no Constitutional

violation; therefore, the use of an injunction is unnecessary since the conduct sought

to be enjoined no longer represents a claim which violates the Eighth Amendment.”).

IT IS THEREFORE ORDERED that:

1. Defendants’ Motion for Summary Judgment (filing no. 42) is granted.

2. A separate judgment will be entered.

Dated this 1st day of November, 2019.

BY THE COURT:

s/ Richard G. Kopf

Senior United States District Judge