United States District Court, D. South Dakota, Western Division
ORDER OF DISMISSAL
JEFFREY L. VIKEN CHIEF JUDGE
Micheal Merrival, Jr., an inmate at the Pennington County
Jail in Rapid City, South Dakota, filed a complaint under 42
U.S.C. § 1983 against the defendant Captain Haga.
(Docket 1). Id. Mr. Merrival alleges Captain Haga
directed her staff to refuse him medical service.
Id. at p. 4. Mr. Merrival claims that because of the
lack of proper medical care his condition worsened and he now
suffers from “depression, anxiety, and possible
17, 2016, the court granted defendant's motion pursuant
to Fed.R.Civ.P. 30(a)(2)(B) to take the deposition of Mr.
Merrival, who was then incarcerated at the South Dakota State
Penitentiary. (Docket 54). The order directed defendant to
coordinate a date and time for the deposition with the prison
officials. Id. On September 6, 2016, the court
entered an order denying Mr. Merrival's third request for
appointment of counsel. (Docket 60 at p. 2). In the order the
court concluded “it is clear . . . that Mr. Merrival is
unwilling to work with any attorney or to accept their advice
as to how to proceed with his claim.” Id. at
pp. 1-2 (references omitted). The order advised Mr. Merrival
“that a district court has discretion to dismiss an
action under Fed.R.Civ.P. 41(b) for a plaintiff's failure
to prosecute, or to comply with Federal Rules of Civil
Procedure or any court order.” Id. at p. 3
(brackets omitted). Mr. Merrival was returned to the
Pennington County Jail on October 12, 2016. (Docket 62).
served a notice of deposition on plaintiff dated October 19,
2016. (Docket 67-7). The notice set Mr. Merrival's
deposition for October 27, 2016, at the Pennington County
Jail. Id. at p. 1. On that date, defense counsel,
together with a court reporter, set up for the deposition in
the programs room of the jail pod where Mr. Merrival was
incarcerated. (Docket 66 at p. 2). Mr. Merrival refused to
leave his jail cell and passed a note through a third party
to defense counsel. The note advised defense counsel that Mr.
Merrival was “incompetent to show for this hearing
without counsel for I am mentally unstable being on two forms
of psyche [sic] medication given by the Pennington County
Jail, of mental health. I am not appearing until I have
counsel to represent me when I'm in the right state of
mind.” (Docket 67-8). Defendant filed a motion to
dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 37
for his intentional refusal to attend his deposition. (Docket
November 1, 2016, Mr. Merrival filed a fourth motion for
appointment of counsel. (Docket 63). In this motion Mr.
Merrival asserted he was “currently unable to act
‘pro se' for my mental stability is incompetent
from psychotropic medication. I will like to proceed with
counsel for my state of mind is hindered. Please order an
appointed counsel to represent me as I believe this will be
fundamentally fair under my fair trial rights.”
Id. at p. 1. In a supplemental filing in support of
the motion, Mr. Merrival claims the two attorneys previously
appointed to represent him were ineffective as they were
trying “to allow the defense to try and establish a
weak ground to file a motion to dismiss.” (Docket 68 at
p. 2). Mr. Merrival asked the court to now appoint
“counsel to file a counter motion against the defendant
or to counsel my party to professionally filing an appeal or
habeas corpus of ineffective assistance of counsel.”
January 5, 2017, the court denied the fourth motion for
appointment of counsel. (Docket 79). The order required Mr.
Merrival to file a response to the defendant's motion to
dismiss by January 27, 2017. Id. at p. 2. The order
again reminded Mr. Merrival of the court's authority to
dismiss a case under Fed.R.Civ.P. 41(b) for
“plaintiff's failure to prosecute, or to comply
with Federal Rules of Civil Procedure or any court
January 23, 2017, Mr. Merrival filed his response to
defendant's motion to dismiss. (Docket 81). Attached to
his response were 88 pages of the Clerk's index and a
number of the pleadings and correspondence in this case and
Mr. Merrival's state court proceedings. (Docket 81-1). In
his response, Mr. Merrival cited the Holy Bible, 42 U.S.C.
§ 1983, 28 U.S.C. § 1915, he discussed the plight
of his journey through the state criminal system and called
this court a “kangaroo court.” (Docket 81 at pp.
1-7). Mr. Merrival's response invoked a
“work-product doctrine” to protect his case from
disclosure to the defendant. Id. at pp. 8-28. Mr.
Merrival asked the court to enter partial summary judgment in
his favor and enter an injunction against the defendant and
her attorneys. Id. at p. 28.
days later, on January 25, Mr. Merrival filed a motion for
non-dismissal of his case and to suppress defendant's
motion to dismiss. (Docket 82). This motion was accompanied
by a memorandum and affidavit from Mr. Merrival. (Dockets 83
& 84). In this submission, Mr. Merrival asserts his
written declaration to defense counsel on October 27, 2016,
was not a “note” but a statement in compliance
with Fed.R.Civ.P. “26(a)(1)(A)(B)(iv)” and that
this section prohibits his case from proceeding without an
attorney. (Docket 83 at pp. 3-4). Mr. Merrival argues that by
attempting to take his deposition while he is in pro
se status, defendant “tried to vigorously violate
the rules of 26 by obtaining immune tangible work-product
from the pro se plaintiff.” Id. at p. 4. He
also claims defense counsel violated Fed.R.Civ.P. 11 by
“aiming to violate Plaintiff's right to due process
and disrespected the laws and rules of privilege and
immunity.” Id. at pp. 4-5.
defendant's motion to dismiss was pending, Mr. Merrival
filed other unrelated motions, including:
(1) A motion to continue his case until he is released from
incarceration. (Docket 72);
(2) A motion to exercise Rule 26(f). (Docket 75);
(3) A motion to expedite discovery. (Docket 76);
(4) A motion for notice pursuant to D.S.D. Civ. LR 29.1.
(Docket 85); and
(5) A motion for copies of all pleadings filed in the case.