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DuBois v. Hanvey

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

June 1, 2016

CHAD DUBOIS, Plaintiff,
v.
MICHAEL JOE HANVEY, Physician's Assistant, Mike Durfee State Prison, in his individual and official capacities; DR. MELVIN WALLINGA, Chief Physician, Mike Durfee State Prison, in his individual and official capacities; and DR. MARY CARPENTER, Employee of South Dakota Department of Health, in her individual and official capacities, Defendants.

          ORDER GRANTING MOTION IN PART AND DENYING MOTION IN PART

          Lawrence L. Piersol, United States District Judge

         INTRODUCTION

         Plaintiff, Chad DuBois, filed this pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983. DuBois is currently incarcerated at the South Dakota State Penitentiary in Sioux Falls. DuBois now moves the court to resend the documents filed in his case, appoint him counsel, order access to his medical diary, and grant him an extension. For the following reasons, DuBois' motion is granted in part and denied in part.

         FACTUAL BACKGROUND

         According to DuBois' motion, he had spinal surgery on April 12, 2016. Docket 46 at ¶ 1. Defendants allege that he was housed in the prison infirmary until April 20, 2016, when he was returned to his cell. Docket 47 at 2. DuBois explains that his legal documents were stored in two tote bags that he kept in his cell. Docket 46 at ¶ 4. He had one tote for his criminal case and one for his § 1983 claim. Id.

         Under Department of Corrections policy 1.3.C.4:

When an inmate is temporarily removed from an assigned cell for medical care . . . staff shall ensure the inmate's property is promptly removed from the inmate's cell, packed, inventoried and stored in an approved, secure location. Allowable personal property shall be re-issued to the inmate upon their return.

         DuBois alleges that the guards packed up the documents in his criminal case but not the documents for his § 1983 claim because when he returned to his cell, the tote containing his § 1983 documents was gone. Docket 46 at ¶ 4. Defendants allege that his property was inventoried and packed on April 17, 2016. Docket 47 at 2. They also allege that prison staff did not know DuBois had two totes. Id.

         According to defendants, DuBois waited until May 12, 2016, to complain to prison staff that his legal documents were missing. Id. When a Unit Manager from the prison spoke with DuBois about the missing documents, DuBois allegedly claimed that he believed another inmate took the container his documents were stored in and threw the documents away. Id. at 3. Defendants allege that prison staff searched for the documents but could not find them. Id.

         DuBois also alleges that he is having issues filing motions because he cannot access legal resources. Because DuBois is in the community transitional program, he is not allowed to go to the prison library. Docket 46 at ¶ 5. He can only check out legal materials that he already knows the name of, and those materials can only be checked out on weekends. Id. DuBois does not know the name of the book he needs to file his motions. Id.

         Finally, DuBois alleges that he has a diary consisting of all of the visits he made to health services at the prison. Id. at ¶ 6. He alleges that the prison is preventing him from receiving the diary because it is too many pages. Id. He believes it is important to his case because he logged visits to health services that are not in his medical record. Id. Defendants dispute the legitimacy and accuracy of this diary. Docket 47 at 4.

         DISCUSSION

         The Court construes DuBois' motion as requesting the Court to re-send copies of documents filed in this case, grant a 30 day extension, order defendants to allow him his medical diary, and appoint an attorney.

         I. ...


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