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Gard v. Dooley
United States District Court, D. South Dakota, Southern Division
July 20, 2017
REX GARD, Plaintiff,
BOB DOOLEY, CHIEF WARDEN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; SUSAN JACOBS, ASSOCIATE WARDEN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; MURIEL NAMINGA, LAUNDRY SUPERVISOR, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; ANDRA GATES, SUPERVISOR, DOH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; KELLY SWANSON, SUPERVISOR, DOH, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; JENIFER BEMBOOM, CBM FOOD SERVICE, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY; JOHN TREWIELLAR, CBM FOOD SERVICE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; BARRY SCHROETER, CBM FOOD SERVICE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; JENIFER STANWICK, DEPUTY WARDEN, INDIVIDUAL AND OFFICIAL CAPACITY; REBECCA SCHEIFFER, ASSOCIATE WARDEN, INDIVIDUAL AND OFFICIAL CAPACITY; LELAND TJEERDSMA, MAJOR, INDIVIDUAL AND OFFICIAL CAPACITY; TRAVIS TJEERDSMA, UNIT STAFF, INDIVIDUAL AND OFFICIAL CAPACITY; TAMMY DEJONG, UNIT STAFF, INDIVIDUAL AND OFFICIAL CAPACITY; RANDY STEVENS, PROPERTY OFFICER, INDIVIDUAL AND OFFICIAL CAPACITY; CORPORAL CROPPER, CORPORAL, INDIVIDUAL AND OFFICIAL CAPACITY; RANDY MILNE, CORRECTIONS OFFICER, INDIVIDUAL AND OFFICIAL CAPACITY; JESSICA LUKE, OFFICE STAFF, DOH, INDIVIDUAL AND OFFICIAL CAPACITY; DOC STAFF, UNKNOWN AT THIS TIME, INDIVIDUAL AND OFFICIAL CAPACITY; AND CBM FOOD SERVICES EMPLOYEES, UNKNOWN AT THIS TIME, INDIVIDUAL AND OFFICIAL CAPACITY; Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO EXTEND,
MOTION TO COMPEL, AND MOTION FOR APPOINTMENT OF A
MEDICALEXPERT DOCKET NOS. 179, 181 & 182
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
before the court is Rex Gard's pro se complaint
pursuant to Title II of the Americans With Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq.Mr. Gard is currently serving
a 65-year sentence at the Mike Durfee State Prison (MDSP) in
Springfield, South Dakota. Mr. Gard moves the court for an
order compelling defendants to provide certain discovery.
See Docket No. 181. Because defendants have not
provided the discovery Mr. Gard thinks he is entitled to, he
also moves to extend the discovery deadline. See
Docket No. 179. Finally, Mr. Gard moves the court for the
appointment of a medical expert. See Docket No. 182.
Gard's claim under Title II of ADA is that defendants
failed to give him a diabetic diet, denied him access to
particular religious ceremonies, the law library, the day
hall, the recreation yard, and the restrooms. See
Docket No. 1 at p. 9. Mr. Gard served defendants with
discovery requests directed to Muriel Naminga asking
primarily about the procedure at the MDSP pertaining to
providing inmates with diabetic shoes and socks. Defendants
objected to providing this discovery on two grounds: (1) Ms.
Naminga was on indefinite medical leave and it is unknown
when or if she will return to work and (2) Mr. Gard's one
remaining claim under the ADA does not contain any
allegations related to diabetic shoes and socks. As to the
latter, defense counsel is correct. Since Mr. Gard's one
last claim contains no allegations regarding diabetic shoes
and socks, the discovery requested is not relevant. The court
accordingly denies Mr. Gard's motion to compel in this
than the discovery with regard to Ms. Naminga, Mr. Gard never
specifies what particular discovery he believes he is
entitled to, how that discovery is relevant to his ADA claim,
or what good faith steps he went through to try to resolve
his discovery dispute with defendants before filing the
instant motion. The court notes that Mr. Gard has filed
numerous motions to compel and this court has previously
patiently and at length explained to him the prerequisites
for filing such a motion, including the need to engage in a
good faith effort to resolve the matter without the
court's involvement and the necessity to tell the court
about the exhaustion of those efforts. For all these reasons,
both substantive and procedural, the court denies Mr.
Gard's motion to extend the discovery deadline in this
case is premised on his conception that there is outstanding
discovery to which he is entitled that he has not yet
received. As explained above, Mr. Gard has not shown that to
be the case. Accordingly, the court denies the motion to
Mr. Gard moves again for the appointment of a medical expert.
The court denies this motion, again, as premature. The last
remaining claim is premised on Mr. Gard's diabetic
condition and alleges defendants have failed to provide
reasonable accommodation for that condition. In previous
litigation in this case, defendants have never denied that
Mr. Gard indeed has a diabetes diagnosis. Mr. Gard's
entire medical record has been placed on file in this matter.
Furthermore, it is unknown what elements of Mr. Gard's
prima facie case under the ADA defendants ultimately
will take issue with. Therefore, it is unknown if a medical
expert will be needed. Should this case go to trial, or
should the need for a medical expert become evident, the
court will revisit this issue.
upon the foregoing, it is hereby
that Mr. Gard's motion for extension of the discovery
deadline [Docket No. 179] is denied. It is further
that Mr. Gard's motion to compel [Docket No. 181] is
denied. It is finally also
that Mr. Gard's renewed motion for the appointment of a
medical expert [Docket No. 182] is denied.
OF RIGHT TO APPEAL
to 28 U.S.C. § 636(b)(1)(A), any party
may seek reconsideration of this order before the district
court upon a showing that the order is clearly erroneous or
contrary to law. The parties have fourteen (14) days after
service of this order to file written objections pursuant to
28 U.S.C. § 636(b)(1)(A), unless an
extension of time for good cause is obtained. See
Fed.R.Civ.P. 72(a); 28 U.S.C. §
636(b)(1)(A). Failure to file timely objections will result
in the waiver of the right to appeal questions of fact.
Id. Objections must be timely and specific in order
to require review by the district court. Thompson v.
Nix, 897 F.2d 356 (8th Cir. 1990); Nash v.
Black, 781 F.2d 665 (8th Cir. 1986).