United States District Court, D. South Dakota, Southern Division
CHARLES E. SISNEY, Plaintiff,
DENNY KAEMINGK, IN HIS OFFICIAL CAPACITY AS THE SOUTH DAKOTA SECRETARY OF CORRECTIONS; DARIN YOUNG, IN HIS OFFICIAL CAPACITY AS THE WARDEN OF THE SOUTH DAKOTA STATE PENITENTIARY; SHARON REIMANN, IN HER OFFICIAL CAPACITY AS AN SDSP DESIGNATED MAILROOM OFFICER; AND CRAIG MOUSEL, IN HIS OFFICIAL CAPACITY AS AN SDSP DESIGNATED PROPERTY OFFICER; Defendants.
VERONICA L. DUFFY, United States Magistrate Judge
MOTION FOR COSTS OF SERVICE OF PROCESS [DOCKET NOS. 37 &
MOTION FOR IN CAMERA REVIEW [DOCKET NO. 50]
MOTION TO RESOLVE FACIAL CHALLENGE [DOCKET NO. 58]
MOTION TO COMPEL AND DEFENDANTS' MOTION FOR A PROTECTIVE
ORDER [DOCKET NOS. 59 & 72]
MOTION FOR SANCTIONS [DOCKET NO. 60]
MOTION TO EXTEND DISCOVERY DEADLINES [DOCKET NO. 61]
MOTION TO STAY RULING ON SUMMARY JUDGMENT PENDING RESOLUTION
OF DISCOVERY DISPUTES [DOCKET NO. 77]
matter is pending before the court pursuant to plaintiff
Charles Sisney's pro se complaint filed under 42
U.S.C. § 1983. See Docket Nos. 1 and 8-1. The
court is filing this same day a report and recommendation on
the parties' cross-motions for summary judgment. This
order is being filed separately to resolve various other
pending motions before the court. The matter was referred to
this magistrate judge for resolution of pretrial matters
pursuant to the October 16, 2014, standing order of the
Honorable Karen E. Schreier, district judge, and 28 U.S.C.
§ 636(b)(1)(A) and (B).
Sisney's complaint asserts both facial and as-applied
challenges to the pornography policy adopted by the South
Dakota Department of Corrections (DOC) and applicable at the
South Dakota State Penitentiary (SDSP), where Mr. Sisney
resides. Mr. Sisney alleges defendants, by adopting and
applying the policy, have violated his First Amendment free
speech rights and his Fourteenth Amendment due process
rights. Each of the four defendants is sued only in their
official capacities. Mr. Sisney seeks only declaratory and
Motions for Costs of Service of Process
Sisney, when he filed his lawsuit, sent to each of the
defendants a request that they waive service of the summons
pursuant to Federal Rule of Civil Procedure 4. Rule 4(d)(1)
states "[a]n individual, corporation, or association
that is subject to service under Rule 4(e), (f), or (h) has a
duty to avoid unnecessary expenses of serving the summons.
The plaintiff may notify such a defendant that an action has
been commenced and request that the defendant waive service
of a summons." If a defendant who is requested to waive
service of the summons refuses to do so, the defendant must
pay the plaintiffs costs and expenses incurred in actually
serving the defendant. See Fed. R. Civ. P. 4(d)(2).
defendants Mr. Sisney sued are individuals who are state
employees sued in their official capacities. See
Docket Nos. 1 and 8-1. As such, Mr. Sisney's suit against
them is actually considered a suit against the state itself.
Kentucky v. Graham, 473 U.S. 159, 165 (1985).
"For public policy reasons, neither governmental
agencies nor their employees or officials are obligated to
comply with a request for waiver nor will they be confronted
with bearing the costs of the service of process."
Chapman v. NY State Div. for Youth, 227 F.R.D. 175,
179 (N.D.N.Y. 2005). Instead, service of a state, or a state
employee sued in his or her official capacity, is covered by
subsection (j) of Rule 4, not subsections (e), (f), or (h),
and requires actual service on the governor or service upon
the governor in the manner directed by state law.
See Fed. R. Civ. P. 40); Chapman. 227
F.R.D. at 179-80. See also Fed.R.Civ.P. 4(j),
Advisory Committee Notes to 1993 Amendments ("[t]he
request for waiver of service may be sent only to defendants
subject to service under subdivision (e), (f), or (h). The
United States is not expected to waive service . . . [and]
the same principle is applied to . . . entities subject to
service under subdivision (J)")
this reason, Mr. Sisney's motions for costs and expenses
because defendants failed to waive service of the summons
[Docket Nos. 37 and 47] are denied. Defendants are not
covered by Rule 4(d)(4).
Motion for I ...