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Gard v. Dooley

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

December 23, 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 OFFICIALCAPACITY; JESSICA LUKE, OFFICE STAFF, DOH, INDIVIDUAL AND OFFICIAL CAPACITY; DOC STAFF, UNKNOWN AT THIS TIME, INDIVIDUAL AND OFFICIAL CAPACITY; AND CBM FOOD SERVICES EMPLOYEES, UNKNOWN AT THIS TIME, INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.

ORDER ON MOTIONS PLAINTIFF’S MOTION TO TURN OVER DISCOVERY MATERIALS TO STAFF ATTORNEY [DOCKET NO. 98] PLAINTIFF’S MOTION TO INVOKE RULE 56(D) [DOCKET NO. 99 & 105] PLAINTIFF’S MOTION TO APPOINT A MEDICAL EXPERT AND FOR A MEDICAL EXAMINATION [DOCKET NO. 100 & 106]PLAINTIFF’S FOURTH AND FIFTH MOTIONS FOR APPOINTMENT OF COUNSEL [DOCKET NOS. 101 & 121] PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT [DOCKET NO. 108] PLAINTIFF’S MOTION FOR SANCTIONS [DOCKET 114] PLAINTIFF’S MOTION FOR COURT ORDER [DOCKET 116]

VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

This matter is before the court on plaintiff Rex Gard’s amended complaint pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131 - 12165. See Docket No. 55.[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. Nine motions are pending and eight of them are addressed by this order.[2]

FACTS

The background of the instant lawsuit is that Mr. Gard, an inmate at a South Dakota state prison, alleges defendants failed to give him special diabetic socks and diabetic shoes, which were necessitated by Mr. Gard’s medical condition-insulin-dependent diabetes. He also alleges defendants have refused to provide him with a diabetic diet. Mr. Gard also alleges he needs prescription glasses but 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 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 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.

On July 2, 2014, Mr. Gard moved to file an amended complaint, and the district court granted the motion. Docket 34 & 44. Mr. Gard moved for extra time to file his amended complaint (Docket 45) and the district court granted that motion as well (Docket 46). Mr. Gard filed yet another motion for an extension of time to file his amended complaint (Docket 50), and the district court granted the motion (Docket 53). Mr. Gard filed the amended complaint (Docket 55) on November 25, 2014. His amended complaint re-alleged his § 1983 deliberate indifference and ADA claims based upon Mr. Gard’s diabetic condition, (Docket 55, ¶¶ 24-84) and added claims based upon what Mr. Gard perceives to be the defendants’ retaliatory conduct which has occurred since the date Mr. Gard filed his original complaint. Docket 55, ¶¶ 85-114.

On April 7, 2015, the defendants moved for summary judgment on all claims which are based upon 42 U.S.C. § 1983. See Docket 86, 87 & 88. The defendants assert that as to each of Mr. Gard’s claims based upon § 1983, they are entitled to qualified immunity. See Docket 88. Mr. Gard has moved for several extensions of time to respond to the defendants’ motion for summary judgment, (see Docket Nos. 91, 93, 119) and this court has granted each motion. See text order following Docket No.91, Docket No. 95, and Docket No. 120. The order granting Mr. Gard’s final motion to extend cautioned, however, that no further motions to extend would be granted and his response must be filed by December 30, 2015. Docket 120.

Mr. Gard filed a flurry of other motions following the defendants’ motion for summary judgment. Mr. Gard has intimated in a letter to the district court (Docket 123) that he believes he cannot respond to the defendants’ summary judgment motion unless these outstanding motions are ruled upon. The following is the court’s ruling on the outstanding motions.

DISCUSSION

A. Mr. Gard’s Fourth and Fifth Motions to Appoint Counsel-Docket Nos. 101 & 121.

Mr. Gard filed three previous motions to appoint counsel on April 16, 2014, January 26, 2015, and March 23, 2015. See Docket Nos. 14, 63 and 78.

The district court denied the first motion, and this court denied the second and third motions. See Docket Nos. 44, 75 and 80. The district court and this court found 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 he is adequately able to articulate his claims and argue legal precedent.

In his fourth motion for appointment of counsel (Docket 101), Mr. Gard explains he needs a lawyer to be appointed for him because pursuant to his motion to invoke Rule 56(d), (Docket 99 & 105)) it will be necessary for him to conduct discovery in order to defeat summary judgment based upon qualified immunity. On March 13, 2015, this court granted the defendants’ motion for a protective order which explained that until the merits of the qualified immunity claim are decided, it is inappropriate to allow discovery. See Docket No. 75.

The court addresses Mr. Gard’s motion to invoke Rule 56(d) in more depth below. Supreme Court precedent is clear, however, that “if the defendant . . . plead[s] the [qualified] immunity defense, the district court should resolve that threshold question before permitting discovery.” Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (citing Harlow, 457 U.S. at 818) (emphasis added). Only if the plaintiff’s claims survive a dispositive motion on the issue of qualified immunity will the plaintiff “be entitled to some discovery.” Id. That Mr. Gard persists in his desire to conduct discovery before the defendants’ summary judgment motion which is based upon qualified immunity is decided, therefore, is an insufficient reason to grant his fourth motion for appointment of counsel.

In his fifth motion for appointment of counsel (Docket 121) and accompanying affidavit in support (Docket 122), Mr. Gard explains he needs counsel because a “new” policy has recently been implemented at the MDSP which has divested him of his ability to possess copies of case law. Docket 122, ¶¶ 2-8. Mr. Gard explains he is not allowed to possess copies of case law because the case law bears other inmates’ names. Id. He explains this “new” policy came to light as follows: another inmate (Mr. Kurtenbach) was helping Mr. Gard with his legal work. Mr. Kurtenbach printed pleadings pertaining to Mr. Gard’s case, and a corrections officer observed the other inmate print these pleadings which belonged to Mr. Gard. Both the other inmate and Mr. Gard were issued disciplinary write-ups because the other inmate possessed Mr. Gard’s legal work. Id. at ¶¶ 2-3.[3]

Mr. Gard asked a Unit Manager (UM) Klimek (not a party to this lawsuit) to define “another inmate’s legal work”[4] as that term is used in the policy. UM Klimek allegedly explained the term meant “anything with any other inmate’s name on it.” After hearing this from UM Klimek, Mr. Gard “went to see staff attorney Sonny Walter and handed over all [his] case law that contained another inmate’s name, since Unit Manager Klimek stated that [he] cannot possess it . . .” Docket 122 at ¶ 5. Without copies of case law, Mr. Gard explains, he is “unable to investigate or present his claims.” Docket 128.

Mr. Gard has submitted an affidavit from a fellow inmate-Michael Holzer-- (Docket 127) which explains UM Klimek told him that “apparently” Policy 1.3.C.4 Section IV “Procedures” Part 1.A.7 means inmates cannot possess case law if the caption bears the name of another inmate. Docket 127 at ¶ 9.

The defendants submitted a response (Docket 125) to Mr. Gard’s fifth motion to appoint counsel. The defendants assert that (1) pursuant to SDDOC Policy 1.3.E.1 inmate are allowed to assist one another with their legal work; but (2) pursuant to SDDOC Policy 1.3.C.4, they are not allowed to keep each other’s personal property, including legal documents or materials, in their possession. See Docket 125-1 and 125-2 (copies of SDDOC policy 1.3.E.1 and 1.3.C.4, respectively). The defendants further explain that policy 1.3.C.4 is not a “new” policy, but instead was merely revised in September 2015, as shown by the revision log. Docket 125-2 at p. 6. The September 2015 revision did not pertain to Section IV “Procedures” Part 1.A.7. Id. Defendants further represent that despite what UM Klimek allegedly told Mr. Gard about his interpretation of the policy, “[t]he copies of 8 case cites per month obtained by [Mr. Gard] obtained by [him] from the staff attorney is not is not property belonging to another inmate simply because another inmate’s name appears in the caption/heading. Under [Mr. Gard’s] present interpretation of the policy, an inmate could rarely, if ever, possess ‘case law.’ That was never the intent of SDDOC Policy 1.3.C.4.” See Docket 125, p. 3.

The court agrees. Even assuming the truth of Mr. Gard’s claim regarding UM Klimek’s less than eloquent attempts to define “legal documents or legal materials belonging to another inmate” as those terms are used in Policy 1.3.C.4, Mr. Gard does not claim UM Klimek or anyone else ordered him or any other inmate to disgorge properly obtained copies of published or unpublished case law, or disciplined him or any other inmate for possessing properly obtained copies of published or unpublished case law. Mr. Gard does not claim UM Klimek or anyone else told him he must disgorge properly obtained copies of published or unpublished case law because another inmate’s name in the caption or heading rendered the properly obtained case law violative of the policy, or put Mr. Gard at risk of violating the policy. It is the court’s view that Mr. Gard’s act of surrendering his properly obtained case law to the staff attorney because of this strained interpretation of the policy defies common sense and constitutes yet another attempt to delay his obligation to submit a timely response to the defendants’ motion for summary judgment.

Mr. Gard’s fourth and fifth motions for appointment of counsel set forth no new valid facts or grounds for requesting court-appointed counsel. Compare Docket Nos. 14, 63 & 78 to Docket Nos. 101 & 121. Accordingly, the court denies Mr. Gard’s fourth and fifth motions for the appointment of counsel (Docket Nos. 101 & 121).

B. Plaintiff’s Ex Parte Motion to Turn Over Discovery Material To Staff Attorney (Docket 98)

Mr. Gard has moved the court to allow him to turn over three pairs of socks to the prison staff attorney for delivery to the court for inspection. Mr. Gard asserts it is necessary for the court to inspect these socks for purposes of the pending summary judgment motion. Mr. Gard explains he has attempted to mail the socks directly to the court as exhibits but has not been allowed to do so. He believes that if he surrenders custody of the socks to prison officials, the socks “would never be seen again.” Docket 98.

The defendants have explained in writing their positions about Mr. Gard’s socks. The defendants have explained they believed the socks they provided to Mr. Gard were sufficient. Mr. Gard may likewise explain in writing why he believes the socks were not sufficient and why the insufficiency rose to the level of deliberate indifference. The court does not discern that physical inspection of the socks long after the fact is a necessary part ...


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