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Dale v. Kaemingk
United States District Court, D. South Dakota, Southern Division
November 3, 2016
JAMES IRVING DALE, MICHAEL EUGENE KOCH, JAMES EDWARD HAYES, JOSIA JEREMIAH FUERST, JEFFERY JACOB-DANIEL KLINGHAGEN, UNKNOWN MIKE DURFEE STATE PRISON INMATES, Plaintiffs,
DENNIS KAEMINGK, SOUTH DAKOTA SECRETARY OF CORRECTIONS; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; ROBERT DOOLEY, WARDEN AT MDSP AND THE DIRECTOR OF PRISON OPERATIONS FOR THE SOUTH DAKOTA DOC; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; JOSHUA KLIMEK, UNIT MANAGER AT MDSP; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; TAMMY DEJONG, UNIT COORDINATOR AT MDSP; IN HER INDIVIDUAL AND OFFICIAL CAPACITY; SUSAN JACOBS, ASSOCIATE WARDEN AT MDSP; IN HER INDIVIDUAL AND OFFICIAL CAPACITY; REBECCA SCHIEFFER, ASSOCIATE WARDEN AND THE ADMINISTRATIVE REMEDY COORDINATOR AT MDSP; IN HER INDIVIDUAL AND OFFICIAL CAPACITY; JENNIFER STANWICK, DEPUTY WARDEN AT MDSP; IN HER INDIVIDUAL AND OFFICIAL CAPACITY; MICHAEL DOYLE, CORRECTIONAL OFFICER, WITH THE RANK MAJOR, AT MDSP; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; JEREMY LARSON, CORRECTIONAL OFFICER, WITH THE RANK SERGEANT, AND THE DISCIPLINARY HEARING OFFICER AT MDSP; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; COREY TYLER, CORRECTIONAL OFFICER, WITH THE RANK SERGEANT, AT MDSP; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; MICHAEL MEYER, CORRECTIONAL OFFICER AT MDSP; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; KELLY TJEERDSMA, CORRECTIONAL OFFICER, WITH THE RANK CORPORAL, AT MDSP; IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY; LORI DROTZMAN, GENERAL EDUCATION DIPLOMA TEACHER, WHO ALSO IS IN CHARGE OF THE LAW LIBRARY AT MDSP; IN HER INDIVIDUAL AND OFFICIAL CAPACITY; MICHAEL JOE HANVEY, PHYSICIANS ASSISTANT AND HEALTH CARE PROVIDER AT MDSP; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; ANDRA GATES, NURSING SUPERVISOR AND HEALTH CARE PROVIDER AT MDSP; IN HER INDIVIDUAL AND OFFICIAL CAPACITY; KELLY SWANSON, HEALTH SERVICES SUPERVISOR AT MDSP; IN THEIR INDIVIDUAL AND OFFICIAL CAPACITY; STEPHANIE HAMILTON, NURSE AT MDSP; IN HER INDIVIDUAL AND OFFICIAL CAPACITY; MARY CARPENTER, EMPLOYEE OF THE SOUTH DAKOTA DEPARTMENT OF HEALTH AND ASSISTS WITH INMATE HEALTH CARE DECISIONS FOR INMATES INCARCERATED AT MDSP; IN HER INDIVIDUAL AND OFFICIAL CAPACITY; BARRY SCHROETER, SUPERVISOR FOR CBM CORRECTIONAL FOOD SERVICES AT MDSP; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; JENNIFER BENBOON, DIETITIAN EMPLOYED BY CBM CORRECTIONAL FOOD SERVICES; IN HER INDIVIDUAL AND OFFICIAL CAPACITY; CBM CORRECTIONAL FOOD SERVICES, PRIVATE FOR PROFIT COMPANY CONTRACTED BY THE SOUTH DAKOTA DOC TO PROVIDE MEALS TO INMATES INCARCERATED AT MDSP; DELMAR SONNY WALTERS, ATTORNEY AT LAW CONTRACTED BY THE SOUTH DAKOTA DOC TO PROVIDE LEGAL SERVICES TO INMATES INCARCERATED AT MDSP; IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; UNKNOWN DEPARTMENT OF CORRECTIONS EMPLOYEES, CORRECTIONAL OFFICERS EMPLOYED BY THE SOUTH DAKOTA DOC WHO WORK AT MDSP; UNKNOWN DEPARTMENT OF CORRECTIONS HEALTH SERVICES STAFF, HEALTH SERVICES DEPARTMENT STAFF EMPLOYED BY THE SOUTH DAKOTA DOC TO PROVIDE HEALTH CARE FOR INMATES INCARCERATED AT MDSP; AND UNKNOWN CBM CORRECTIONAL FOOD SERVICES EMPLOYEES, EMPLOYEES OF CBM CORRECTIONAL FOOD SERVICES AT MDSP; Defendants.
ORDER DENYING MOTIONS FOR APPOINTMENT OF COUNSEL BY
PLAINTIFF KOCH BUT ORDERING DEFENDANTS TO PROVIDE KOCH WITH
MEDICAL RECORDS DOCKET NOS. 112, 113 & 114
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE
matter is before the court on a pro se complaint
pursuant to 42 U.S.C. § 1983 and the Americans With
Disabilities Act (ADA) filed by multiple prison inmates at
the Mike Durfee State Prison (MDSP), among them Michael
Eugene Koch. Mr. Koch has filed three motions for appointment
of counsel. See Docket Nos. 112, 113, and 114. The
court denies all three motions as discussed below.
civil litigants do not have a constitutional or statutory
right to appointed counsel." Edgington v. Missouri
Dep't of Corrections, 52 F.3d 777, 780 (8th Cir.
1995). The factors relevant to evaluating a request for
appointment of counsel include "whether both the
plaintiff and the court will benefit from the appointment of
counsel, taking into account the factual and legal complexity
of the case, the presence or absence of conflicting
testimony, and the plaintiff's ability to investigate the
facts and present his claim." Davis v. Scott,
94 F.3d 444, 447 (8th Cir. 1996).
case is not factually complex. Mr. Koch alleges defendants
are deliberately indifferent to his serious medical needs,
namely treatment of his liver and gall bladder conditions. In
support of his motion, Mr. Koch alleges he has only an
eighth-grade education, does not know the law, receives no
assistance from the law librarian or contract attorney at
MDSP, and is ill. Mr. Koch alleges an outside doctor has told
him his gall bladder is basically dead and needs to be
removed, but surgery cannot be accomplished until his liver
is stabilized. Mr. Koch alleges his liver is being affected
by Hepatitis C and that he requires treatment with the drug
Harvoni® in order to stabilize his liver. He alleges
defendants are not giving him the indicated liver treatment,
with the result that his gall bladder cannot be removed. He
alleges these conditions cause him pain on a daily basis.
case is not legally complex. The law regarding
plaintiff's Eighth Amendment claim is well-settled, and
requires that plaintiff to "prove that he suffered from
one or more objectively serious medical needs, and that
prison officials actually knew of but deliberately
disregarded those needs." Roberson v. Bradshaw,
198 F.3d 645, 647 (8th Cir. 1999). A serious medical need is
"one that has been diagnosed by a physician as requiring
treatment, or one that is so obvious that even a layperson
would easily recognize the necessity for a doctor's
attention." Camberos v. Branstad, 73 F.3d 174,
176 (8th Cir. 1995) (quotation marks and citation omitted).
The law further provides that "[d]eliberate indifference
may be demonstrated by prison guards who intentionally
interfere with prescribed treatment, or by prison doctors who
fail to respond to prisoner's serious medical needs. Mere
negligence or medical malpractice, however, are insufficient
to rise to a constitutional violation." Dulany v.
Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (citing
Estelle v. Gamble, 429 U.S. 97, 104-06 (1976)).
all individuals untrained in the law, plaintiff may benefit
from the assistance of counsel, but the court does not find
it necessary to appoint counsel in this matter. The court
would not benefit from the assistance of counsel at this
point in the proceedings. Plaintiff, although incarcerated,
is able to investigate the facts of his claim. It is not
clear at the present time whether there will be conflicting
testimony in this case. The legal issues involved do not
appear to be legally complex at this point in the
it does appear Mr. Koch cannot adequately represent himself
without access to his own medical records. Accordingly,
considering all the relevant factors, as discussed above, and
upon the record to date, the court will order defendants to
provide Mr. Koch with his own medical records for the last
three years, including those records from outside doctors.
Based on the foregoing, it is hereby
that plaintiff Michael Koch's motions for appointment of
counsel [Docket Nos. 112, 113 & 114] are denied without
prejudice. It is further
that if defendants are served with Mr. Koch's complaint,
defendants shall immediately provide to Mr. Koch copies of
all of his medical records for the last three years, both
records generated by prison medical staff, South Dakota
Department of Health employees, and outside medical doctors.
If necessary, Mr. Koch must execute health ...