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Sund v. Carpenter

United States District Court, D. South Dakota, Southern Division

November 14, 2014

DENNIS R. SUND, Plaintiff,
v.
DR. CARPENTER, DIRECTOR OF HEALTH AND HUMAN SERVICES, INDIVIDUAL AND OFFICIAL CAPACITY; BOARD OF DIRECTOR'S, DEPARTMENT OF CORRECTIONS HEALTH SERVICES (NAMES UNKNOWN) EACH IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; DR. REIGER, CHIEF MEDICAL PHYSICIAN OF DEPARTMENT OF CORRECTIONS, INDIVIDUAL AND OFFICIAL CAPACITY; PHYSICIAN ASSISTANT'S, DEPARTMENT OF CORRECTIONS (NAMES UNKNOWN), INDIVIDUAL AND OFFICIAL CAPACITY; AND P.A. RYAN MANSON, DOCTOR, Defendants.

ORDER ON MOTIONS MOTION TO CHANGE VENUE (DOC. 21) THIRD MOTION TO APPOINT COUNSEL (DOC. 22)

VERONICA L. DUFFY, Magistrate Judge.

INTRODUCTION

Plaintiff, Dennis R. Sund ("Sund"), is a former inmate who was incarcerated at the South Dakota State Penitentiary ("SDSP") in Sioux Falls South Dakota. He has filed a pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983, alleging the defendants violated his civil rights. Specifically, Sund alleges the defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment to the United States Constitution and that the defendants violated his right to equal protection under the Fourteenth Amendment. Sund alleges the defendants, without reasonable investigation or reasoning, denied him necessary medication during his incarceration. Sund asserts the defendants' actions have caused damage to his left leg and that his ability to walk has been lost or greatly diminished. He further alleges that others similarly situated were not denied access to their similar medications. He seeks nominal and punitive damages from each named defendant.

Sund has, as required, paid the initial partial filing fee. Judge Schreier ordered his Complaint to be served upon the defendants. The defendants have filed their Answer and a Rule 16 Scheduling Order was entered on September 22, 2014.

Sund has filed two previous motions for appointment of counsel (Doc. 6 and Doc. 15). Judge Schreier denied the first motion ( see Order dated April 29, 2014) and Judge Simko denied the second motion ( see Order dated August 13, 2014). Currently pending are Sund's motion to change venue (Doc. 21) and his third motion for appointment of counsel (Doc. 22).

DISCUSSION

A. Motion for change of venue (Doc. 21)

At the time he filed his Complaint, Sund was an inmate in the South Dakota State Penitentiary in Sioux Falls. See Doc. 1. The events which form the basis of Sund's Complaint occurred at the South Dakota State Penitentiary in Sioux Falls. Sioux Falls is located in Minnehaha County, which is in the Southern Division of the District of South Dakota. See 28 U.S.C. § 122.

Defendants explain in their Answer that Sund has been released on parole. See Doc. 19, p.3 ¶ 9. The docket sheet and Sund's correspondence to the Court indicate Sund now lives in Whitewood, South Dakota. Whitewood is in Lawrence County, which is in the Western Division of the District of South Dakota. See 28 U.S.C. § 122. On October 14, 2014, Sund filed a motion for change of venue (Doc. 21). In support of the motion, Sund explains he is "100% disabled... and travel for me is quite hard." He asks that his case be moved to the Western Division of the District of South Dakota. He explains his finances are limited, he is not allowed to drive, and could get to the Rapid City federal courthouse for court hearings much more easily than the he could get to Sioux Falls.

1. Current venue is proper Under 28 U.S.C. § 1391(b)

"Venue may be proper in any number of districts so long as a substantial part of the events giving rise to the action occurred there. One of the central purposes of statutory venue is to ensure that a defendant is not haled into a remote district having no real relationship to the dispute." Barber v. Simpson, 94 F.3d 648 (8th Cir. 1996) (unpublished). The statute referenced in Barber is 28 U.S.C. § 1391(b). It states:

§ 1391 Venue generally
(b) Venue in general. A civil action may be brought in -
(1) A judicial district in which any defendants resides, if all defendants are residents of the State in ...

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