Klave v. Milstad et al

Filing 20

ORDER denying 16 Motion for Summary Judgment; denying 17 Motion to Appoint Counsel. Signed by U.S. District Judge Karen E. Schreier on 1/7/2014. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RYAN MICHAEL KLAVE,
Plaintiff,
vs.
SHERIFF MIKE MILSTAD,
Minnehaha County;
CHIEF DEPUTY SHERIFF
MICHELLE BOYD,
Minnehaha County;
SHERIFF NELSON, Lincoln County;
DEPUTY SHERIFF JOHN DOE I,
Lincoln County;
LINDA OSBORNE,
Correct Care Solutions Employee,
Minnehaha County;
PAM KNOPP,
Correct Care Solutions Employee,
Minnehaha County; and
JEFF GROMER, Warden,
Minnehaha County Jail,
Defendants.

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Civ. 13-4074-KES

ORDER DENYING MOTION FOR
SUMMARY JUDGMENT AND
DENYING MOTION TO APPOINT
COUNSEL

Plaintiff, Ryan Michael Klave, is an inmate at the Minnehaha County
Jail in Sioux Falls, South Dakota. Klave has filed a pro se civil rights lawsuit
pursuant to 42 U.S.C. § 1983 and is now moving for summary judgment.
Docket 16. Defendants oppose the motion. Klave also moves for appointment
of counsel. Docket 17.

FACTS
In the claim that survived screening, Klave claims that defendants
violated his constitutional rights under the Eighth Amendment. Docket 1 at 5.
Klave represents in his complaint that he suffers from bipolar disorder with
psychotic features, anxiety disorder, depression, and ADHD. Docket 1 at 6.
According to Klave, he has been prescribed medications to treat his
conditions, but such medications ran out in February 2013. Id. Although
Klave has asked the medical staff and prison guards for assistance “in
securing help to get more of his medications,” and despite Klave’s compliance
with inmate grievance procedures, he has been unable to get the medications
he requires. Id. at 6–7. In denying Klave prescription medications, the medical
staff apparently cite the cost of such provisions—“his medications cost to [sic]
much to obtain.” Id. at 6. As a result, Klave “has suffered many episodes of
getting locked in the . . . segregated housing unit for not having his
medications.” Id. at 7.
After screening, the complaint was served on defendants Jeff Gromer,
Michelle Boyd, Mike Milstad, and Pam Knopf. Service was completed on
July 24, 2013. Docket 12. Service was not completed on defendant Linda
Osborne. Docket 13. Defendants Gromer, Boyd, Milstad, and Knopf filed an
answer to the complaint on August 12, 2013. Docket 15. Klave filed his
motion for summary judgment on August 15, 2013. Docket 16.

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I.

The court denies Klave’s motion for summary judgment.
Klave moves for summary judgment on the grounds that defendants

failed to timely answer his complaint. As a result, he claims that the
allegations in his complaint are uncontested and establish that he is entitled
to judgment as a matter of law.
Under Federal Rule of Civil Procedure 12(a)(1)(A)(i), a “defendant must
serve an answer . . . within 21 days after being served with the summons and
complaint[.]” Here, defendants filed their answer 19 days after being served
with the summons and complaint. Because their answer was timely, the
allegations in Klave’s complaint are contested, and he is not entitled to
judgment as a matter of law.
II.

The court denies Klave’s motion to appoint counsel.
“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. In this case, the
facts of Klave’s remaining claim are not complex. Klave appears able to
adequately present his § 1983 claim at this time, and his motion to appoint
counsel (Docket 17) is therefore denied. Accordingly, it is

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ORDERED that Klave’s motion for summary judgment (Docket 16) is
denied. Discovery is not stayed, but defendants may filed a motion for
summary judgment based on official or qualified immunity at any time.
IT IS FURTHER ORDERED that Klave’s motion to appoint counsel
(Docket 17) is denied.
Dated January 7, 2014.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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