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Gard v. Dooley

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

February 13, 2015

REX GARD, Plaintiff,
v.
BOB DOOLEY, CHIEF WARDEN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; SUSAN JACOBS, ASSOCIATE WARDEN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; MURIEL NAMINGA, LAUNDRY SUPERVISOR, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; ANDRA GATES, SUPERVISOR, DOH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; KELLY SWANSON, SUPERVISOR, DOH, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; JENIFER BEMBOOM, CBM FOOD SERVICE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; JOHN TREWIELLAR, CBM FOOD SERVICE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; BARRY SCHROETER, CBM FOOD SERVICE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JENIFER STANWICK, DEPUTY WARDEN, INDIVIDUAL AND OFFICIAL CAPACITY; REBECCA SCHEIFFER, ASSOCIATE WARDEN, INDIVIDUAL AND OFFICIAL CAPACITY; LELAND TJEERDSMA, MAJOR, INDIVIDUAL AND OFFICIAL CAPACITY; TRAVIS TJEERDSMA, UNIT STAFF, INDIVIDUAL AND OFFICIAL CAPACITY; TAMMY DEJONG, UNIT STAFF, INDIVIDUAL AND OFFICIAL CAPACITY; RANDY STEVENS, PROPERTY OFFICER, INDIVIDUAL AND OFFICIAL CAPACITY; CORPORAL CROPPER, CORPORAL, INDIVIDUAL AND OFFICIAL CAPACITY; RANDY MILNE, CORRECTIONS OFFICER, INDIVIDUAL AND OFFICIAL CAPACITY; JESSICA LUKE, OFFICE STAFF, DOH, INDIVIDUAL AND OFFICIAL CAPACITY; UNKNOWN AT THIS TIME, INDIVIDUAL AND OFFICIAL CAPACITY; AND SERVICES EMPLOYEES, UNKNOWN AT THIS TIME, INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.

ORDER ON MOTIONS: DEFENDANTS' MOTION FOR PROTECTIVE ORDER [DOCKET NO. 72] PLAINTIFF'S MOTION TO SEVER [DOCKET NO. 68] PLAINTIFF'S MOTION TO EXTEND DEADLINES [DOCKET NO. 66] PLAINTIFF'S MOTION TO APPOINT COUNSEL [DOCKET NO. 63]

VERONICA L. DUFFY, Magistrate Judge.

INTRODUCTION

This matter is before the court on plaintiff Rex Gard's complaint pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131 - 12165. See Docket No. 1. The district court, the Honorable Lawrence L. Piersol, referred this matter to this magistrate judge for the resolution of non-dispositive motions and for recommended dispositions on dispositive motions. This referral was made pursuant to 28 U.S.C. § 636(b)(1) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, district court judge. Four motions are pending and are addressed herein.

FACTS

The background of the instant motion is that Mr. Gard, an inmate at a South Dakota state prison, alleges that defendants failed to give him special diabetic socks and diabetic shoes, which were medically required by Mr. Gard's medical condition-insulin-dependent diabetes. He also alleges that defendants have refused to provide him with a diabetic diet. Mr. Gard also alleges that he needs prescription glasses and that defendants have refused to give him a pair of glasses that fit his head. Each of these allegations form the basis for Mr. Gard's assertion that defendants have been deliberately indifferent to his serious medical needs in violation of the Eighth Amendment to the United States Constitution. See Docket No. 1 at pp. 2-8.

In addition, Mr. Gard alleges that defendants have violated Title II of the ADA by refusing to give him a specialized diet, denying him access to particular religious ceremonies, the law library, the day hall, the recreation yard, and the restrooms. See Docket No. 1 at p. 9. The district court screened Mr. Gard's complaint and found that Mr. Gard's complaint set forth claims sufficient to survive initial scrutiny under 28 U.S.C. § 1915. See Docket No. 11. The court therefore ordered the complaint and summonses to be served on defendants. Defendants then duly filed an answer. See Docket No. 27.

DISCUSSION

A. Mr. Gard's Second Motion to Appoint Counsel-Docket No. 63

Previously, Mr. Gard filed a motion to appoint counsel on April 16, 2014. See Docket No. 14. The district court denied that motion. See Docket No. 44. The court found that the issues in this case were not factually complex and that Mr.Gard was adequately able to present his claims. Id.

"Indigent civil litigants do not have a constitutional or statutory right to appointed counsel." Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996). The factors relevant to evaluating a request for appointment of counsel include "whether both the plaintiff and the court will benefit from the appointment of counsel, taking into account the factual and legal complexity of the case, the presence or absence of conflicting testimony, and the plaintiff's ability to investigate the facts and present his claim." Id.

This case is not legally or factually complex. Furthermore, the district court set forth the law governing Mr. Gard's Eighth Amendment and ADA claims in its screening opinion. See Docket No. 11. In addition, the court has ruled on or been referred four separate cases in which Mr. Gard has represented himself. See Gard v. Kaemingk, Civ. No. 13-4062; Gard v. Dooley, Civ. No. 14-4023; Gard v. Dooley, Civ. No. 14-4179; and Gard v. Dooley, Civ. No. 14-4183. The court, from first-hand observation of Mr. Gard's representation of himself, finds that he is adequately able to articulate his claims and argue legal precedent.

Mr. Gard's second motion for appointment of counsel sets forth no new facts or grounds for requesting court-appointed counsel than were urged in his first motion. See Docket Nos. 14 & 63. Accordingly, the court denies Mr. Gard's second motion for the appointment of counsel.

B. Defendants' Motion for Protective Order-Docket No. 72

Defendants pleaded the affirmative defense of qualified immunity in their answer. See Docket No. 27, p. 30. They now seek an order from the court staying all discovery in this matter until a dispositive motion on the issue of qualified immunity is filed by ...


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