United States District Court, D. South Dakota, Southern Division
DAWN VAN BALLEGOOYEN and JOHN ANDERSON, Personal Representatives of the Estate of BRADY FOLKENS; Plaintiffs,
AARON BROWNSON, in his individual and official capacity; JEFF HAIAR, in his individual and official capacity; DANIEL MARTI, in his individual and official capacity; DENA HARROD, in her individual and official capacity; MS. SUWYN, in her individual and official capacity; MR. MIECKKOWSKI, in his individual and official capacity; NANCY FLEMING, in her individual and official capacity; JOHN WENTE, in his individual and official capacity; AARON RODGERS, in his individual and official capacity; STATE TREATMENT AND REHABILITATION ACADEMY, an agency of the State of South Dakota; SOUTH DAKOTA DEPARTMENT OF CORRECTIONS, an agency of the State of South Dakota; HEITH WADDELL, M.D., CUSTER REGIONAL HOSPITAL; and DOES 1-20, in their individual and official capacities, Defendants.
MEMORANDUM OPINION AND ORDER
E. SCHREIER UNITED STATES DISTRICT JUDGE
Dawn Van Ballegooyen and John Anderson as personal
representatives of the estate of Brady Folkens, sued
defendants, alleging negligence and violation of Folkens'
Eighth and Fourteenth Amendment rights. Defendants State
Treatment and Rehabilitation Academy (STAR) and South Dakota
Department of Corrections (DOC) move to dismiss themselves as
defendants. Defendants Dr. Heith Waddell and Custer Regional
Hospital (CRH) move to dismiss for failure to serve within
120 days. Plaintiffs oppose both motions.
following reasons, the court grants STAR and DOCs' motion
to dismiss and denies Dr. Waddell and CRHs' motion to
facts viewed in the light most favorable to the plaintiffs,
the non-moving party, are as follows:
Dawn Van Ballegooyen, Personal Representative of the Estate
of Brady Folkens, deceased, is a resident of Brookings, South
Dakota. Docket 1 ¶ 1. Plaintiff John Anderson,
co-Personal Representative of the Estate, is a resident of
East Grand Forks, Minnesota. Id.
STAR is an agency of the State of South Dakota. Id.
Defendant DOC is also an agency of the State of South Dakota.
Id. Defendant CRH is a South Dakota corporation.
Docket 1 ¶ 2. CRH provides youth at STAR medical care
subject to STAR and DOC oversight. Dr. Waddell is a doctor at
October 25, 2013, Folkens was admitted to STAR in the custody
of DOC. Docket 1 ¶ 5. Folkens was a juvenile and
incarcerated so he could not care for his own medical needs.
Docket 1 ¶ 17. While at STAR, Folkens became ill.
Id. at ¶ 6. On December 21, 2013, Dr. Waddell
examined Folkens at CRH. Id. at ¶ 8. Folkens
was transferred to Avera-McKennan Hospital in Sioux Falls
instead of the nearby Rapid City Regional Hospital. Docket 1
¶ 9. During the air ambulance ride to Sioux Falls,
Folkens' condition deteriorated. Id. at ¶
10. When he arrived in Sioux Falls, Folkens was in
cardiopulmonary arrest. Id. He died less than two
hours after his arrival in Sioux Falls. Id.
February 25, 2013, plaintiffs filed notice of a claim with
the South Dakota Attorney General, the Secretary of DOC, the
Commission of Administration and STAR pursuant to SDCL
§§ 3-21-2 and 3-21-3. Docket 1 ¶ 32.
December 18, 2014, plaintiffs filed their complaint. Docket
1. Plaintiffs' counsel moved to withdraw on March 4,
2015. Docket 4. The court directed plaintiffs' counsel to
serve notice on plaintiffs advising them of their intention
to withdraw and set a deadline of March 25, 2015, to find new
counsel. Docket 5. On March 23, 2015, plaintiffs filed notice
that they were continuing pro se until they obtained
substitute counsel. Docket 7. Plaintiffs requested an
extension of time to obtain new counsel. Id. The
court granted the request and set a new deadline of May 26,
2015, to obtain new counsel. Docket 8. Plaintiffs requested
three more extensions for additional time to find counsel.
Docket 9; Docket 11; Docket 13. Each time the court granted
the request, allowed 120 more days to find counsel, and
warned plaintiffs that Rule 4(m) required them to serve the
defendants within 120 days of filing the complaint. Docket
10; Docket 12; Docket 14. Plaintiffs served the summons on
May 17, 2016. Docket 22.
STAR and DOC move to dismiss the action against them as
parties. Docket 25. After plaintiffs filed a response
opposing the motion, they asked for an additional 30 days to
file a supplemental response. The court granted this request
on August 29, 2016. Docket 46. No additional response was
filed by September 29, 2016. Defendants CRH and Dr. Waddell
move to dismiss all claims for failure to serve them with the
summons and complaint within 120 days. Docket 29. Plaintiffs
responded 31 days after the motion was filed and now move the
court to enlarge the time to respond to the motion to
dismiss. Docket 42.
Defendants STAR and DOC
local rules require a party to specify “the Federal
Rule of Civil Procedure on the basis of which the motion is
made.” D.S.D. LR 7.1B. In their motion, defendants do
not specify under which rule their motion is made, stating
only that “this Court lacks jurisdiction over them
pursuant to the [Eleventh] Amendment of the United States
Constitution.” Docket 25. Eleventh Amendment immunity
may be asserted as a Rule 12(b)(6) motion or Rule 12(b)(1)
motion. E.g., Lutgen v. S.D. Dep't of Soc.
Servs., No. CIV. 12-4030-KES, 2012 WL ...