Gard v. Kaemingk et al

Filing 115

ORDER denying 38 Motion for Partial Summary Judgment; granting 63 Motion for Summary Judgment; adopting 88 Report and Recommendation; denying 113 Objection to Report and Recommendation. Signed by U.S. District Judge Lawrence L. Piersol on 9/24/15. (SLW)

FILED
UNITED STATES DISTRICT COURT

SEP 2 4 2015

DISTRICT OF SOUTH DAKOTA

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SOUTHERN DIVISION

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REX GARD,
Plaintiff,
vs.
DENNIS KAEMINGK, Secretary of
Corrections for State of South Dakota,
individually and in his official capacity;
DOUG WEBER, Director of Prison
Operations, individually and in his
official capacity;
BOB DOOLEY, Warden at Mike Durfee
State Prison, individually and in his
official capacity;
TROY PONTO, Associate Warden
at SDSP, individually and in his
official capacity;
LELAND TJEERDSMA, Major, Head
of Special Security, Mike Durfee State
Prison, individually and in his
official capacity;
CLIFTON FANTROY, Unit Manager at
SDSP Unit, individually and in his
official capacity;
GEORGE DEGLMAN, Unit Manager
at Mike Durfee State Prison, individually
and in his official capacity;
SGT. LARSON, Sergeant at Mike Durfee
State Prison, individually and in his
official capacity;
PROPERTY OFFICER BERTHELSON,
Property Officer at the SDSP Warehouse,
individually and in his official capacity;
Defendants.

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CIV 13-4062

ORDER

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PlaintiffRex Gard, an inmate at the Mike Durfee State Prison, has filed a civil rights lawsuit
pursuant to 42 U.S. C. § 1983. The Magistrate Judge issued a Report and Recommendation dated
January 30, 2015, recommending that the Defendants' Motion for Summary Judgment be granted
and that each ofMr. Gard's claims be dismissed with prejudice, and that PlaintiffRex Gard's Motion
for Partial Summary Judgment as to liability on his due process, access to the courts, and excessive
fines claims be denied in its entirety. Plaintiff filed objections to the Report and Recommendation.
In addition to Plaintiffs Objections, Plaintiff filed his own Affidavit and the Affidavit of another
prisoner, both as a part ofthe Objections to the Report and Recommendation. Those Affidavits are
not timely for consideration regarding Defendants' Summary Judgment Motion and will not be
considered. Even ifthey were considered, the result would be the same. Plaintiff in his Objections
asks for a jury trial on the $99.00 fine issue. Given that summary judgment is warranted for the
reasons stated in the Report and Recommendation, there is no separate basis under the Seventh
Amendment, as now claimed, or otherwise, for a jury trial. There are disputed factual issues in this
case, but there is no genuine dispute of any material fact. With regard to the dental care issue, the
Defendants were not plainly incompetent with regard to Mr. Gard's Eighth Amendment rights. The
dental care complaints under the facts as explained in the Report and Recommendation do not
present a "serious medical need" under the Eighth Amendment, so no Eighth Amendment claim is
presented. After an independent review of the record,
IT IS ORDERED:
1.

That the Magistrate Judge's Report and Recommendation, Doc. 88, is
ADOPTED and Plaintiffs Objections to the Report and Recommendation,
Doc. 113, are DENIED.

2.

That Defendants' Motion for Summary Judgment, Doc. 63, is GRANTED.

3.

That Plaintiffs Motion for Partial Summary Judgment, Doc. 38, is DENIED.

4.

That Plaintiffs Complaint, Doc. 1, is DISMISSED with prejudice.

5.

That Plaintiff is advised that the dismissal of this lawsuit will be considered
a "strike" for purposes of the Prison Litigation Reform Act. 28 U.S.C.
§ 1915(g).

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Dated this

't.~ day of September, 2015.
BY THE COURT:

1~&~ .
ATTEST:
JOSEPH HAAS,~~

By~.S.1mw

Deputy

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