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Shaw v. Kaemingk

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

June 19, 2018

JAMES ELMER SHAW, Plaintiff,
v.
DENNIS KAEMINGK, Secretary of Corrections, Sued in his Official and Individual Capacities; ROBERT DOOLEY, Director of Prison Operations, Sued in his Official and Individual Capacities; DARIN YOUNG, Warden, Sued in his Official and Individual Capacities; JENNIFER DRIESKE, Deputy Warden, Sued in her Official and Individual Capacities; JENNIFER STANWICK-KLEMIK, Deputy Warden, Sued in her Official and Individual Capacities; TROY PONTO, Associate Warden, Sued in his Official and Individual Capacities; ARTHOR ALCOCK, Associate Warden, Sued in his Official and Individual Capacities; DAVID LENTSCH, Unit Manager, Sued in his Official and Individual Capacities; DERRICK BIEBER, Unit Manager, Sued in his Official and Individual Capacities; AL MADSON, Unit Manager, Sued in his Official and Individual Capacities; JOSH KEMINK Unit Manager, Sued in his Official and Individual Capacities; TAMMI MERTINS-JONES, Cultural Activities Coordinator, Sued in her Official and Individual Capacities; ELIZABETH VITETTA, Unit Coordinator, Sued in her Official and Individual Capacities; BRITINEY ULMER, Unit Coordinator, Sued in her Official and Individual Capacities; MELISSA MATURAN, Administrative Remedy Coordinator, Sued in her Official and Individual Capacities; STEVE BAKER, Major, Sued in his Official and Individual Capacity; LINDA MILLER-HUNHOFF, Mail Supervisor, Sued in her Official and Individual Capacity; SHARRON KEIMAN, Mailroom, Sued in her Official and Individual Capacity; JORDAN STOREVIK, Mailroom, Sued in his Official and Individual Capacity; DEREK ANDERSON, Correctional Officer, Sued in his Official and Individual Capacity; PRESTON PERRETT, Correctional Officer, Sued in his Official and Individual Capacity; JUDY PLOOSTER-JACOBS, Correctional Officer, Sued in her Official and Individual Capacity; LISA FRASIER, Correctional Officer, Sued in her Official and Individual Capacity; NICK REDDMAN, Teacher, Sued in his Official and Individual Capacity; DR. MARY CARPENTER, MD, Sued in her Official and Individual Capacity; ER REGIER, MD, Sued in his Official and Individual Capacity; BRAD ADAMS, PA-C; Sued in his Official and Individual Capacity; JESSICA SCHREURS, RN; Sued in her Official and Individual Capacity; HEATHER BOWERS, RN; Sued in her Official and Individual Capacity; UNKNOWN DEPARTMENT OF HEALTH/CORRECTIONAL HEALTH SERVICE (DOH/CHS) EMPLOYEES, Sued in their Official and Individual Capacity; CBM CORRECTIONAL FOOD SERVICES, Sued in its Official and Individual Capacity; JOHN TWEIRWEILLER, CBM District Manager, Sued in his Official and Individual Capacity; UNKNOWN CBM EMPLOYEES, Sued in their Official and Individual Capacity; DELMER WALTER, Contracted DOC Attorney, Sued in his Official and Individual Capacity; MARK BIDNEY, Contracted DOC Paralegal. Sued in his Official and Individual Capacity; AND GLOBAL TEL*LINK, GTL; Sued in its Official and Individual Capacity; Defendants.

          ORDER

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Shaw is an inmate at the Mike Durfee State Prison in Springfield, South Dakota. He filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket 1. Shaw now moves the court to allow him to serve only notice on defendants (Docket 10), appoint counsel for him (Docket 11), and enter default judgment against CBM Correctional Food Service (CBM) (Docket 62). Defendants move this court to enter a protective order to stay discovery pending a determination of qualified immunity (Dockets 56, 58, 59). CBM moves for leave to amend answer (Docket 53) and set aside the clerk's entry of default (Docket 55).

         I. Shaw's Motion re Service

         Shaw requests that the court permit him to “merely notice defendants of his pleadings submitted to this court rather than provide actual paper copies[.]” Docket 10. Because Shaw is an indigent prisoner without the ready ability to make copies and defendants can receive his filings through CM/ECF, the motion is granted.

         II. Shaw's Motion to Appoint Counsel

         Shaw requests counsel. Docket 11. “A pro se litigant has no statutory or constitutional right to have counsel appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). In determining whether to appoint counsel to a pro se litigant's civil case, the district court considers the complexity of the case, the ability of the indigent litigant to investigate the facts, the existence of conflicting testimony, and the indigent's ability to present his claim. Id. Shaw's claims are not complex, and he appears able to adequately present his § 1983 claims at this time. Therefore, his motion to appoint counsel (Docket 11) is denied.

         III. CBM's Motion to File Amend Answer

         CBM requests leave to file an amended answer. Docket 53. On February 15, 2018, CBM's counsel filed an answer of behalf of the employees of the Department of Corrections, Department of Health, and CBM. See Docket 42. Counsel claims CBM was accidentally omitted from the list of defendants responding in the February 15, 2018 answer. Docket 53.

         Shaw responded and opposed the motion to amend answer. Docket 61. First, Shaw argues that CBM's motion to amend is an attempt to circumvent the motion for default judgment. The court will address Shaw's motion for default judgment in the next section. Second, Shaw argues CBM failed to comply with Local Rule 15.1, because CBM did not attach a proposed amended pleading to its motion to amend with the proposed changes highlighted or underlined. Shaw's argument that CBM failed to comply with the requirements of Local Rule 15.1 is correct. While the failure to comply with a local rule can lead to the dismissal of a case, the Eighth Circuit has recognized “that ‘the application of local rules is a matter peculiarly within the district court's province.' ” Yannacopoulos v. Gen. Dynamics Corp., 75 F.3d 1298, 1305 (8th Cir. 1996) (quoting Chrysler Credit Corp. v. Cathey, 977 F.2d 447, 449 (8th Cir. 1992) (per curiam)); see also Silberstein v. I.R.S., 16 F.3d 858, 860 (8th Cir. 1994) (“[T]he district court has considerable leeway in the application of its local rules” (citation omitted)). “Indeed, ‘[i]t is for the district court to determine what departures from its rules may be overlooked.' ” Silberstein, 16 F.3d at 860 (alteration in original) (quoting Braxton v. Bi-State Dev. Agency, 728 F.2d 1105, 1107 (8th Cir. 1984)). Here, the interests of justice weigh heavily in favor of overlooking the noncompliance with Local Rule 15.1.

         Federal Rule of Civil Procedure 15(a) declares that leave to amend “shall be given freely when justice so requires.” This court has discretion in whether to grant such a motion. Fed.R.Civ.P. 13 and 15(a); Holloway v. Dobbs, 715 F.2d 390, 392 (8th Cir. 1983). Leave to amend should be denied only if some reason exists for denial, such as undue delay, bad faith, dilatory motive, undue prejudice to the opposing party, or futility in allowing the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). No such reason exists for denying the motion to amend. Thus, CBM's motion to file amended answer (Docket 53) is granted.

         IV. Shaw's Motion for Default Judgment and CBM's Motion to Set Aside Entry of Default

         On April 18, 2018, the Clerk of Court entered an entry of default in favor of Shaw and against CBM. Docket 54. CBM moves to set aside the entry of default. Docket 55. Shaw moves for default judgment against CBM or, in alternative, for sanctions. Docket 62.

         Federal Rule of Civil Procedure 55(c) allows a court to set aside an entry of default for good cause. To determine if good cause exists, the court weighs “whether the conduct of the defaulting party was blameworthy or culpable, whether the defaulting party has a meritorious defense, and whether the other party would be prejudiced if the default were excused.” Stephenson v. El-Batrawi, 524 F.3d 907, 912 (8th Cir. 2008) (quotation omitted). Setting aside an entry of default requires a lesser showing of excuse than setting aside a default judgment. Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998) (citation omitted). The court also has discretion to enter a judgment when a party moves for one. Fed.R.Civ.P. 55(b)(2). But there is a judicial preference to adjudicate claims on their merits. Johnson, 140 F.3d at 784.

         A. Culpability ...


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