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Sisney v. Kaemingk

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

May 25, 2016

CHARLES E. SISNEY, Plaintiff,
v.
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.

          ORDER

          VERONICA L. DUFFY, United States Magistrate Judge

         PLAINTIFF'S MOTION FOR COSTS OF SERVICE OF PROCESS [DOCKET NOS. 37 & 47]

         PLAINTIFF'S MOTION FOR IN CAMERA REVIEW [DOCKET NO. 50]

         PLAINTIFF'S MOTION TO RESOLVE FACIAL CHALLENGE [DOCKET NO. 58]

         PLAINTIFF'S MOTION TO COMPEL AND DEFENDANTS' MOTION FOR A PROTECTIVE ORDER [DOCKET NOS. 59 & 72]

         PLAINTIFF'S MOTION FOR SANCTIONS [DOCKET NO. 60]

         PLAINTIFF'S MOTION TO EXTEND DISCOVERY DEADLINES [DOCKET NO. 61]

         PLAINTIFF'S MOTION TO STAY RULING ON SUMMARY JUDGMENT PENDING RESOLUTION OF DISCOVERY DISPUTES [DOCKET NO. 77]

         INTRODUCTION

         This 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).

         FACTS

         Mr. 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 injunctive relief.

         DISCUSSION

         A. Motions for Costs of Service of Process

         Mr. 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).

         The 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)")

         For 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).

         B. Motion for I ...


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