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Ballegooyen v. Brownson

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

September 30, 2016

DAWN VAN BALLEGOOYEN and JOHN ANDERSON, Personal Representatives of the Estate of BRADY FOLKENS; Plaintiffs,
v.
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

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Plaintiffs, 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.

         For the following reasons, the court grants STAR and DOCs' motion to dismiss and denies Dr. Waddell and CRHs' motion to dismiss.

         BACKGROUND

         The facts viewed in the light most favorable to the plaintiffs, the non-moving party, are as follows:

         Plaintiff 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.

         Defendant 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 CRH. Id.

         On 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.

         On 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.

         On 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.

         Defendants 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.

         DISCUSSION

         I. Defendants STAR and DOC

         The 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 ...


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