Smith v. Boysen et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
BRUCE EDGAR SMITH,
Plaintiff,
vs.
JESS BOYSEN, CORRECTIONAL OFFICER,
IN HER INDIVIDUAL AND OFFICIAL
CAPACITY;DARIN YOUNG,WARDEN,IN
HIS INDIVIDUAL AND OFFICIAL
CAPACITY; TROY PONTO,ASSOCIATE
WARDEN,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; JOHN SHYNE,
LIEUTENANT,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; KURTIS BROWN,
SERGEANT,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; DAVID STEPHAN,
DCI AGENT,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; JUSTIN KUKU,
CORRECTIONAL OFFICER,IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
KEITH DITMANSON, UNIT MANAGER,IN
HIS INDIVIDUAL AND OFFICIAL
CAPACITY; JESSICA COOK,ASSOCIATE
WARDEN,IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY;PAIGE W.BOCK,
SOUTH DAKOTA STATE ATTORNEY
GENERAL,IN HER INDIVIDUAL AND
OFFICIAL CAPACITY;TAMMY SUNDE,
SOUTH DAKOTA STATE ATTORNEY
GENERAL,IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; JENNIFER
DREIRSKE,DEPUTY WARDEN,IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
ASHLEY MCDONALD,ATTORNEY FOR
THE SOUTH DAKOTA STATE
PENITENTIARY,IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; DAVID LENTSCH,
UNIT MANAGER;IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY; HEATHER
4:21-CV-04186-LLP
ORDER DENYING PLAINTIFF'S MOTION
FOR RECONSIDERATION,MOTION FOR
RECUSAL,AND MISCELLANEOUS
MOTIONS
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BOWERS,NURSE,IN HER INDIVIDUAL
AND OFFICIAL CAPACITY;DR. MARY
CARPENTER,PIERRE'S MEDICAL
DIRECTOR,IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; UNKNOWN
PHYSICAL THERAPIST,JAMISON ANNEX,
A CONTRACTOR FOR HEALTH SERVICES
FROM AN OUTSIDE SOURCE,IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY,
Defendants.
Plaintiff, Bruce Edgar Smith, filed a pro se civil rights lawsuit under 42 U.S.C. § 1983.
Doc. 1. This Court denied Smith's motion to proceed in forma pauperis. Doc. 2, because he is a
barred filer under 28 U.S.C. § 1915(g). Doc. 9. Thus, under § 1915(g), Smith is required to either
pay his full filing fee or allege imminent danger of serious physical injury. On December 29,
2021, Smith filed a response to this Court's order denying his motion to proceed in forma
pauperis and a motion for recusal. Docs. 10,12. Smith has also filed two motions to appoint
counsel and a motion for copies of documents. Docs 4,11.
I. Motion for Reconsideration
Smith disputes this Court's determination that he failed to allege imminent danger of
serious physical injury. See Doc. 10 at 1-10. Construing his filing liberally. Smith has filed a
motion for reconsideration. The Eighth Circuit Court of Appeals has traditionally "instructed
courts to consider [motions for reconsideration] either under Rule 59(e) or Rule 60(b)." See
Moherly v. Midcontinent Commc'n, Civ. 08-04120, 2010 WL 11681663, at *1 (D.S.D. Aug. 2,
2010)(citations omitted). Rule 60(b) authorizes a court to relieve a party from a final judgment
under the following circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b);(3)fraud(whether previously called
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intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;(4)
thejudgmentis void;(5)the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or(6)any other reason thatjustifies relief.
Fed. R. Civ. P. 60(b)(l)-(6). Smith argues that his ongoing medical condition constitutes
imminent danger of serious physical injury. Doc. 10 at 3-4.
The only potentially applicable eircumstance here is "any other reason that justifies
relief." See Fed. R. Civ. P. 60(b)(6). But to obtain relief under Rule 60(b)(6), a party must show
that "exceptional circumstances ... denied the moving party a full and fair opportunity to litigate
his claim and ... prevented the moving party from receiving adequate redress." Harley v.
Zoesch, 413 F.3d 866, 871 (8th Cir. 2005)(citation omitted). Rule 60(b) motions cannot be used
to "tender new legal theories" or to reargue "on the mQxxts." Arnold v. ADT Sec. Sews., Inc., 627
F.3d 716, 721 (8th Cir. 2010)(quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407,414(8th
Cir. 1988))(first quoted material); Broadway v. Norris, 193 F.3d 987, 990(8th Cir.
1999)(seeond quoted material).
Under § 1915(g),
In no event shall a prisoner bring a civil action or appeal ajudgment in a civil action
or proceeding under this section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an action or appeal in a court
ofthe United States that was dismissed on the grounds that it is frivolous, malieious,
or fails to state a claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
As this Court explained in its previous order. Smith has had three previous complaints dismissed
as frivolous, malicious, or failing to state a claim, and thus Smith must either pay the filing fee in
full or allege imminent danger of serious physical injury. See Doc. 9.
Smith claims that he had back surgery on August 27, 2020. Doc. 1 at 30. He claims that
physical therapy following this surgery violated his medieal order for "no bending, twisting, or
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flexing" and caused further injury and extreme pain. Id. at 30-32. He also claims that his back
has stopped healing since he was reinjured in physical therapy. Id. at 32-33. This Court found
that while Smith's injury was ongoing in that he still suffered from it, he failed to show ongoing
danger. Doc. 9 at 3-4.
Smith submits medical correspondence since this Court's order between himself and
South Dakota State Penitentiary Health Services staff that he claims demonstrates imminent
danger of serious physical injury. Doc. 16-1 at 1-10. Specifically, the correspondence shows that
he underwent an injection on January 7, 2022,that after a visit to sick call on February 10,2022,
his provider requested an appointment with Physical Medicine and Rehabilitation, and that he
received another correspondence the following day instructing him to continue his current plan
of Tylenol, meloxicam, and gabapentin. Id. at 6-7, 10. Smith believes that he needs surgery
because of his continuing back pain and that defendant Dr. Mary Carpenter, the medical director,
is blocking him from seeing Dr. Carmody. See Doc. 15 at 3-4; Doc. 16 at 4. Smith saw Dr.
Carmody for a one-year follow-up after his surgery, at which point she observed "failed fusion
with loosening or failure ofintegration ofthe L4 anchoring screws." Doc. 16-1 at 19. She also
noted that "there is no guarantee that another surgery would be helpful for [Smith's] symptoms"
and that he might not require further surgery. Id. at 20. Smith alleges that Dr. Carpenter is
relying on this one note from August 17, 2021,to continue to deny him access to Dr. Carmody
and future surgeries. See Doc. 16 at 4.
Smith also makes allegations that defendant Jess Boysen has retaliated against him and
that the threat ofretaliation is ongoing. Doc. 10 at 7-10. Smith alleges that Boysen told him that
"he would show [Smith] how bad it really could get" and that Boysen was reassigned to a
different section ofthe State Penitentiary to keep him away from Smith. Id. at 8. He alleges that
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he was assaulted by three inmates on May 9th, 2019, while Boysen watched and smiled. Id. He
also alleges that Sgt. Amber Stevens, a friend of Boysen's, falsely had him written up on June
10,2021, causing him to be sent to the Segregated Housing Unit and to lose his prison job. Id. at
9-10.
Smith fails to allege ongoing danger sufficient to show an imminent danger of serious
physical injury. Smith's medical care allegations are that the State Penitentiary is failing to
properly treat his back injury. See Doc. 16 at 2-6. He makes no allegation that he is at risk of
further injury or harm or that he is at risk of being treated by the physical therapist that reinjured
him. Instead, he disagrees with the treatment plan that he is receiving and believes that surgery
would be a better option. Mere disagreement with treatment decisions does not constitute
deliberate indifference to serious medical needs. See Jolly v. Knudsen,205 F.3d 1094, 1096 (8th
Cir. 2000)(citation omitted). As to Smith's allegations of retaliation, two instances of retaliation
over the past three years do not constitute an imminent risk, especially without a showing that
future harm is likely. See Martin v. Shelton, 319 F.3d 1048, 1050(8th Cir. 2003)("By using the
term 'imminent,' Congress indicated that it wanted to include a safety valve for the 'three
strikes' rule to prevent impending harms, not those harms that had already occurred."(quoting
Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 (3d Cir. 2001)(en banc))). Thus,.Smith makes no
showing of exceptional circumstances as required by Rule 60(b)(6).
Nor is Smith afforded any relief under Rule 59(e). "Motions under Rule 59(e)'serve the
limited function of correcting manifest errors oflaw or fact or to present newly discovered
evidence' and 'cannot be used to introduce new evidence, tender new legal theories, or raise
arguments which could have been offered or raised prior to entry ofjudgment.'"Ryan v. Ryan,
889 F.3d 499, 507(8th Cir. 2018)(quoting United States v. Metro. St. Louis Sewer Dist., 440
I
5
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F.3d 930,933(8th Cir. 2006)). Smith makes no showing of a manifest error of law or fact and
provides no newly discovered evidence except for his arguments described above. Thus, his
motion for reconsideration. Doc. 10, is denied,
n. Motion for Recusal
Smith moves for the recusal ofthe undersigned judge. Doc. 12."A judge must recuse
from 'any proceeding in which [the judge's] impartiality might reasonably be questioned.'"
United States v. Melton, 738 F.3d 903,905(8th Cir. 2013)(alteration in original)(quoting 28
U.S.C. § 455(a)). This standard is objective and questions "whether the judge's impartiality
might reasonably be questioned by the average person on the street who knows all the relevant
facts ofa case." Id. (quoting Moran v. Clarke, 296 F.3d 638,648(8th Cir. 2002)(en banc)). The
party that introduces the motion for recusal "carries a heavy burden ofproof; ajudge is presumed
to be impartial and the party seeking disqualification bears the substantial burden ofproving
otherwise." Fletcher v. Conoco Pipe Line Co., 323 F.3d 661,664(8th Cir. 2003)(internal
quotation omitted).
The party must show "that the judge had a disposition so extreme as to display clear
inability to render fair judgment." Melton, 738 F.3d at 905 (internal quotation omitted). Smith
argues that this Court has incorrectly ruled against him in several previous cases. Doc. 12 at 4-
10. But "judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion. Liteky v. United States, 510 U.S. 540, 555 (1994). Judicial rulings alone "cannot
possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances
evidence the degree offavoritism or antagonism required ... when no extrajudicial source is
involved. Almost invariably, they are proper grounds for appeal, not for recusal." Id. Here,
Smith's disagreement with prior rulings may be grounds for appeal, but he has not shown that
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the undersigned judge is unable to be impartial or to render a fair judgment. Smith has not met
his burden. Thus, his motion for recusal. Doc. 12, is denied.
Accordingly, it is ORDERED:
1. That Smith's motion for reconsideration. Doc. 10, is denied.
2. That Smith's motion for recusal. Doc. 12, is denied.
3. That Smith s motion for documents. Doc. 11, is denied as moot.
4. That Smith's motions for appointment of counsel. Docs. 4, 11, are denied as moot.
DATED August ,2022.
ATTEST:
MATTUEW \^THEL
BY THE COl
Eawrence L. Piersol	.awrence L. Piersol
United States District Judge
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