United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE TO
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
Jeffery Jacob-Daniel Klinghagen (Klinghagen) is the lone
remaining Plaintiff in this case, which began with thirteen
Plaintiffs. Doc. 1. Klinghagen's Verified Amended
Complaint contains claims under 42 U.S.C. § 1983 and the
Americans with Disabilities Act that conditions of
confinement at the Mike Durfee State Prison (MDSP) violate
his rights. Doc. 180. Particularly, Klinghagen alleges that
the Defendants at MDSP have been deliberately indifferent to
his serious medical needs, namely proper treatment of his
has made repeated requests for appointment of counsel, Docs.
91, 110, 188, which Magistrate Judge Veronica L. Duffy has
denied through several orders. Docs. 116, 189. Klinghagen
filed an appeal of those rulings addressed to the undersigned
judge, Doc. 194, and this Court affirmed. Doc. 197.
Court explained that the case is not factually or legally
complex, and that Klinghagen has stated a claim that the MDSP
Defendants have been deliberately indifferent to his serious
medical needs as a diabetic, that he entered prison with an
insulin pump prescribed by a private physician, that MDSP
officials removed the pump, and that he now suffers increased
seizures. Both Magistrate Judge Duffy and this Court have
explained the law to Klinghagen as follows:
The law regarding plaintiffs 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 citations omitted). The law further provides that
"[deliberate 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." Dulanv v. Carnahan.
132 F.3d 1234, 1239 (8th Cir. 1997) (citing Estelle v.
Gamble. 429 U.S. 97, 104-06 (1976)).
Doc. 116 at 5; Doc. 197 at 4; Doc. 203 at 4. Magistrate Judge
Duffy previously has ordered that Defendants provide
Klinghagen copies of his medical records for a several-year
period. Doc. 116 at 6-7.
February 22, 2018, the Defendants filed a Motion to Dismiss,
Doc. 198, arguing that Klinghagen's Amended Complaint
fails to state a claim upon which relief can be granted. A
text order advised Klinghagen of his deadline of March 19,
2018, to respond to the motion to dismiss. Doc. 199.
March 22, 2018, the Clerk of Court filed a one-page letter
postmarked March 21 from Klinghagen where Klinghagen
reiterated his desire for legal counsel and expressed an
inability to proceed without help. Doc. 200. Magistrate Judge
Duffy wrote back to Klinghagen on March 23, 2018, declining
to give Klinghagen legal advice, but recounting that the
Court had provided an outline of the applicable law and some
of the Federal Rules of Civil Procedure, and letting
Klinghagen know how he could access this Court's Civil
Local Rules. Doc. 201. Because some of Klinhagen's letter
could have been read as indicating a loss of a desire to
proceed, Judge Duffy wrote: "If you no longer wish to
pursue your case, you may make a motion to voluntarily
dismiss it." Doc. 201. Because Klinghagen had filed
nothing further and had not resisted Defendants' Motion
to Dismiss, this Court on, July 10, 2018, entered an Order
Requiring Response to Motion to Dismiss. Doc. 203. That Order
provided "that Klinghagen is given until July 24, 2018,
to respond to the Motion to Dismiss, and if he does not so
respond, the Court will deem the motion unopposed and grant
dismissal without prejudice to refiling a separate
case." Doc. 203.
23, 2018, Klinghagen filed a Motion for Extension of Time,
Doc. 204, asking for thirty additional days to file an
"Amended and Supplemental Complaint." The
Defendants resisted Klinghagen's motion, Doc. 205, noting
that this Court's Scheduling Order set a December 18,
2017 deadline for any amendment to pleadings. See Doc. 193.
Klinghagen's Motion for Extension of Time, Doc. 204, is
not a response to the Motion to Dismiss and indeed contains
no argument at all against the Motion to Dismiss. This
Court's prior order was clear "that Klinghagen is
given until July 24, 2018, to respond to the Motion to
Dismiss, and if he does not so respond, the Court will deem
the motion unopposed and grant dismissal without prejudice to
refiling a separate case." Doc. 203. Klinghagen still
has not responded to the motion to dismiss. Therefore, it is
that the Motion to Dismiss, Doc. 198, is granted and that the
case is being dismissed without prejudice. It is further
that Defendant's Motion for Extension of Time, Doc. 204,
is denied as being past the time to file such motions ...