Gard v. Kaemingk et al

Filing 60

ORDER denying 31 Motion to Amend/Correct; denying 31 Motion for Permanent Injunction; denying 32 Motion to Appoint Counsel ; granting 42 Motion to Stay Discovery; granting 42 Motion for Protective Order with regard to discovery requests; denying as moot 51 Motion to Compel. Signed by U.S. District Judge Lawrence L. Piersol on 8/18/14. (SLW)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION
REXGARD,
Plaintiff,
vs.
DENNIS KAEMINGK;
DOUG WEBER;
BOB DOOLEY;
TROY PONTO;
LELAND TJEERDSMA;
CLIFTON FANTROY;
GEORGE DEGELMAN;
SGT. LARSON;
Property Officer BERTHELSON;
Each person named individually and in their
official capacity,
Defendants.

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Civ. 13-4062-LLP

ORDER

Pending before the Court are Plaintiffs second motion to amend complaint (Docket 31),
motion for preliminary and permanent injunction (Docket 31), motion to appoint counsel (Docket
32), motion for partial summary judgment (Docket 38), and motion to compel (Docket 51). Also
pending before the Court is Defendants' request to stay discovery and issue a protective order
(Docket 42). The Court will address each of the pending motions in tum.

I.

The Court Denies Gard's Second Motion to Amend Complaint.
Gard requests leave to amend his complaint for a second time, this time to add a paragraph

alleging that the title of the rule under which he was disciplined failed to provide fair notice of
prohibited conduct. Docket 3 1. A motion for leave to amend is committed to the sound discretion
of the district court. Bell v. Allstate Life Ins. Co., 160 F.3d 452,454 (8th Cir. 1998) (citations
omitted). "A party may amend its pleading once as a matter of course within ... 21 days after
serving it." Fed. R. Civ. P. 15(a)(1)(A). "In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Although
Federal Rule of Civil Procedure 15(a) dictates that "[t]he court should freely give leave when

justice so requires," the court may deny such requests for "undue delay, bad faith or dilatory motive
on the part ofthe movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prej udice to the opposing party by virtue of allowance ofthe amendment, [or] futility ofthe
amendment." Farnan v. Davis, 371 U.S. 178, 182 (1962).
Here, Gard has already received an opportunity to amend his complaint. See Docket 18. The
Court is therefore not bound by the Federal Rules ofCivil Procedure to grant Gard' s second motion
to amend complaint. Gard requests leave to add a paragraph to his complaint which would allege
that Defendants failed to provide fair notice of prohibited conduct by failing to provide a more
descriptive title to the rule under which Gard was disciplined. Docket 31. As Defendants have
demonstrated, however, the rule under which Gard was disciplined does incorporate a sufficiently
descriptive title. Docket 41. Gard was disciplined for disruptive conduct after prison officials
discovered his involvement in smuggling contraband into the prison. Docket 30-2. In the
disciplinary report related to this rule violation, Defendant Tjeerdsma listed "Conduct which
disrupts ..." to describe the prohibited act, and then referenced Rule 5-17. Id.
Although Gard represents that the title of the relevant rule is limited to "conduct which
disrupts," Defendants assert that the full title of Rule 5-17 actually reads as follows: "Conduct
which disrupts or interferes with the security or good order of the institution or interfering with a
staffmember in the performance ofhislher duties." Docket 41 at 2. Regardless, even assuming that
the title of the rule violation is as limited as Gard claims, the Court finds that "conduct which
disrupts" is sufficiently descriptive to put inmates on notice that, if an inmate attempts to smuggle
contraband into the prison, the inmate will be subject to discipline for "conduct which disrupts."
The Court therefore denies Gard's request for leave to amend his complaint because Gard's
proposed amendment would be futile.

II.

The Court Denies Gard's Motion for Preliminary Injunction.
Gard requests "a temporary and permanent injunction ordering the South Dakota

Department of Corrections to stop using all catagories [sic] of this illegal write-up, and remove it
from the policy manual." Docket 31. The Court construes this motion as a request for preliminary
injunction. "A preliminary injunction is an extraordinary remedy." Roudachevski v. All-American

Care Centers, Inc., 648 F.3d 701, 705 (8th Cir. 2011) (citation omitted); see also Hughbanks v.

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Dooley, 788 F. Supp. 2d 988, 992 (D.S.D. 2011) ("[I]n the prison setting, a request for a

preliminary injunction 'must always be viewed with great caution because judicial restraint is
especially called for in dealing with the complex and intractable problems of prison
administration.' ") (quoting Goffv. Harper, 60 F.3d 518,520 (8th Cir. 1995». "The burden of
proving that a preliminary injunction should be issued rests entirely with the movant." Goff, 60
F.3d at 520. To determine whether the issuance ofa preliminary injunction is appropriate, the court
considers the following factors:
(1)
(2)
(3)
(4)

the threat of irreparable harm to the movant;
the state of balance between this harm and the injury that granting the injunction
will inflict on other parties litigant;
the probability that movant will succeed on the merits; and
the public interest.

Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). The court asks "whether

the balance ofequities so favors the movant that justice requires the court to intervene to preserve
the status quo until the merits are determined." Id at 113.
Although no single factor is determinative, "[fJailure to show irreparable harm is an
independently sufficient ground upon which to deny a preliminary injunction." Watkins Inc. v.
Lewis, 346 F.3d 841, 844 (8th Cir. 2003); see also Dataphase, 640 F.2d at 114 n.9 ("[T]he absence

of a finding of irreparable injury is alone sufficient ground for vacating the preliminary
injunction."). To demonstrate irreparable harm, a plaintiff must show that the harm is "certain,
great and of such imminence that there is a clear and present need for equitable relief." Packard
Elevatorv. Interstate Commerce Comm 'n, 782 F.2d 112, 115 (8th Cir. 1986). Notably, a "plaintiff

must make a showing of actual, substantial harm resulting from the alleged infringement."
Travelers Express Co. v. Transaction Tracking Technologies, Inc., 305 F. Supp. 2d 1090, 1095 (D.

Minn. 2003) (citation omitted).
In his motion for preliminary injunction, Gard raises concerns with the language used to
describe prohibited conduct and the manner in which he was found guilty of having committed
such prohibited conduct. Docket 33. More specifically, Gard takes issue with a past disciplinary
write up, contending that prison officials failed to put him on notice regarding the type ofconduct
that constituted "conduct which disrupts" and further lacked sufficient evidence to find him guilty

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of having committed prohibited conduct. Id Gard also argues that Defendants have violated his
due process and equal protection rights, as well as the due process rights of his family and fellow
inmates, through the imposition of excessive fines. Gard asserts that imposing a $99 fine for the
commission ofprohibited conduct "means doing without some ofthe basic necessities oflife and
a few simple pleasures such as a cup of coffee or a snack while watching a football game." Id at

3.
Despite Gard's review of past alleged harm, as well as the past and potential harm posed
by allegedly excessive fines, Gard has failed to establish the irreparable harm necessary for the
imposition of a preliminary injunction. Again, irreparable harm is harm that is "certain, great and
ofsuch imminence that there is a clear and present need for equitable relief." Packard Elevator, 782
F.2d at 115. First, as previously discussed, the Court finds that the language used to describe
prohibited conduct is sufficiently descriptive to put inmates on notice that smuggling contraband into
the prison warrants disciplinary action. The continued use of the existing language does not create
a threat of irreparable harm. Second, to the extent that the allegedly unsubstantiated disciplinary
write-up has harmed Gard, the Court finds that such harm does not create a clear and present need
for equitable relief. Any harm resulting from the allegedly false accusation will be adequately
remedied, if appropriate, at the conclusion of this action. Finally, the Court finds that the harm
associated with allegedly excessive fines-an inability to purchase unidentified basic necessities and
a few simple pleasures--does not constitute substantial, irreparable harm. Because failure to
demonstrate irreparable harm constitutes sufficient grounds for denying a preliminary injunction,
the Court denies Gard's motion for preliminary injunction.

III.

The Court Denies Gard's Motion to Appoint Counsel.
Gard first requested the appointment of counsel on June 12, 2013 (Docket 6). The Court

denied Gard's request shortly thereafter, finding thatthe facts of Gard's remaining claims were not
complex and that he appeared able to adequately present his § 1983 claims (Docket 7 at 10). On
November 14, 2013, the Court denied Gard's second request for the appointment of counsel
(Docket 9) after finding that nothing had arisen in his case to demonstrate that he was suddenly
incapable of presenting his § 1983 claims (Docket 18). Now pending before the Court is Gard's
third attempt to obtain counsel. Docket 32. Therein, Gard argues that he is unable to adequately

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research the arguments presented by Defendants in their responses to Gard' s various filings.
Docket 32. To further support his request for counsel, Gard cites the difficulty he had in serving
Defendant Douglas Weber, a situation that has since been remedied through Weber's admission
of service. Docket 49-1. The only remaining argument in favor of appointing counsel in this case,
therefore, is Gard's argument that he is unable to adequately research arguments presented in this

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case. Given the frequency with which Gard files motions and supplemental briefs, however, the
Court finds this argument unpersuasive. Furthermore, in the absence ofpending discovery, which

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will be discussed below, the Court finds that Gard remains capable of adequately presenting his

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§ 1983 claims. Gard's motion to appoint counsel is therefore denied.

IV.

The Court Grants Defendants' Motion to Stay Discovery
Defendants assert that Gard's claims are subject to a qualified immunity defense. Docket

42. The doctrine of qualified immunity protects prison officials from litigation itself, not merely
liability. Mitchellv. Forsyth, 472 U.S. 511, 526 (1985). Consequently, both the Supreme Court and

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the Eighth Circuit have" 'repeatedly ... stressed the importance ofresolving immunity questions
at the earliest possible stage in litigation.' " 0 'Neil v. City ofIowa City, 496 F .3d 915, 917 (8th Cir.
2007) (quoting Saucier v. Katz, 533 U.S. 194,201 (2001)). In light of Defendants' prospective
motion to resolve the issue of qualified immunity, therefore, the Court grants Defendants' motion
to stay discovery. See Contracting Nw., Inc. v. City ofFredericksburg, Iowa, 713 F.2d 382, 387
(8th Cir. 1983) ("[T]he district court ha[s] the inherent power to grant [a] stay in order to control

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its docket, conserve judicial resources, and provide for a just determination of the cases pending

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before it." (citation omitted)). Accordingly, it is

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ORDERED that Plaintiff's second motion to amend complaint (Docket 31) is denied.
IT IS FURTHER ORDERED that Plaintiff's motion for preliminary injunction (Docket31)
is denied.
IT IS FURTHER ORDERED that Plaintiff's motion to appoint counsel (Docket 32) is

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denied.
IT IS FURTHER ORDERED that Defendants' motion to stay discovery (Docket 42) is
granted. Accordingly, the Court grants Defendants a protective order with regard to Plaintiff's
discovery requests. Defendants have until October 2, 2014, to submit both their response to

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Plaintiff's motion for partial summary judgment and their motion for summary judgment based on
qualified immunity.

IT IS FURTHER ORDERED that Plaintiff's motion to compel (Docket 51) is denied as
moot.
Dated this

1L
\fij day

of August, 2014.

BY THE COURT:

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~CE L. PIERSOL

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UNITED STATES DISTRICT JUDGE

ATTEST:

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JOSEPH HAAS, CLERK
BY: 5r.l1Yl1Yl.QA
DEPUTY

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