Dale v. Dooley et al

Filing 61

ORDER denying 34 Motion for Independent Medical Expert; denying 57 Motion to Stay; granting in part and denying in part 57 Motion to Extend Deadlines. Signed by US Magistrate Judge Veronica L. Duffy on 1/15/2015. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES I. DALE,

4:14-CV-04003-LLP
Plaintiff,

ORDER ON MOTIONS
(DOCKET # 34 AND 57)

vs.
ROBERT DOOLEY, JENNIFER WAGNER,
GEORGE DEGLMAN, UNKNOWN
DEPARTMENT OF CORRECTIONS STAFF,
CBM CORRECTIONAL FOOD SERVICES,
UNKNOWN CBM EMPLOYEES, TAMMY
DEJONG, KIM LIPINCOTT, JENNIFER
BEMBOOM,
Defendants.

Plaintiff, James Irving Dale (“Dale”) has filed a motion for independent
medical expert (Docket 34) and motion for stay pending the completion of
discovery or in the alternative, motion for extension of time (Docket 57).
BACKGROUND
Dale filed a civil lawsuit alleging: (1) the defendants violated his
constitutional rights and that he is entitled to injunctive, declaratory and
monetary relief pursuant to 42 U.S.C. § 1983; the Religious Land Use
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc; Title II of the
Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12101; and Section
504 of the Rehabilitation Act, 29 U.S.C. § 794(a). See generally, Amended
Complaint, Docket 21, and Affidavit of James Dale, Docket 21-1. On June 5,

2014, Judge Piersol ordered Dale’s Amended Complaint and accompanying
Affidavit to be served upon the defendants. Docket 20.
Thereafter, the defendants moved to stay discovery pending a decision on
their request for summary judgment pursuant to qualified immunity. Docket
28. Judge Piersol granted the request for a stay of discovery. Docket 38. In
the meantime, Dale requested the appointment of an independent medical
expert (Docket 34). The purpose of Dale’s request was to “assist [him] and this
court, in determining whether the alleged kosher diet that the defendants feed
the plaintiff is nutritionally adequate to sustain the plaintiff in good health and
to determine if said diet is the reason why the plaintiff is suffering from so
many low blood sugar levels and other medical problems.” Id. In his Order
granting the stay of discovery, Judge Piersol explained that Dale’s motion for
the appointment of an independent medical expert would be addressed “after
the issue of qualified immunity has been resolved.” See, Docket 38.
The defendants have now filed their motion for summary judgment,
alleging they are entitled to qualified immunity because, as to each of Dale’s
claims, Dale has failed to show the defendants violated Dale’s constitutional or
statutory rights. In his motion for stay pending the completion of discovery or
in the alternative, motion for extension of time (Docket 57) Dale asserts that
although the defendants’ qualified immunity summary judgment brief was due
on December 12, he did not receive it until December 22, 2014. See, Dale’s
supporting affidavit, Docket 58, at p. 2, ¶ 6.1

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Dale’s affidavit starts with ¶1 and goes through ¶5 on page one. On
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Dale also asserts the defendants’ brief went beyond the parameters of
Judge Piersol’s August 25, 2014 and November 5, 2014 Orders which limited
defendants’ summary judgment motion and supporting brief to the issue of
their entitlement to qualified immunity. Dale claims that because the
defendants’ brief addressed the merits of all his underlying claims, Judge
Piersol’s stay of discovery should be lifted before Dale is required to submit his
response to the defendants’ brief. Id. at p. 2, ¶ 1-4.
DISCUSSION
A.

Motion for Stay Pending Discovery or in the Alternative, For
Extension of Time
In his motion (Docket 57) Dale asks the Court for a stay pursuant to FED.

R. CIV. P. 56(f) and an Order requiring defendants to provide him with discovery
to allow him to properly respond to the summary judgment motion. In his
accompanying affidavit, Dale explains he needs discovery to respond to the
defendants’ claims: (1) that Dale’s diet is nutritionally adequate and sustains
him in good health; (2) that Dale has requested to be taken off his Kosher diet
on several occasions; and (3) that the Kosher meals Dale receives are in fact
Kosher and prepared according to Kosher law. In the alternative, Dale requests
an extension of time until February 23, 2015 to file his response to the
defendants’ summary judgment motion. See, Docket 57 at p. 2.

page two, the ¶ numbers restart with ¶1 and continue through the end of the
affidavit to ¶9.
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The defendants filed a response to Dale’s motion (Docket 60). They
oppose the motion for a stay of discovery pursuant to FED. R. CIV. P. 56(f)2 but
do not oppose Dale’s request for an extension of time to respond. Id.
The court has reviewed the defendants’ motion for summary judgment
(Docket 50), memorandum in support (Docket 51), and statement of material
facts (Docket 52). The motion requests summary judgment as a matter of law
on the grounds of qualified immunity “and as to all claims raised by Plaintiff.”
Id. at p. 2.
“Qualified immunity shields government officials from civil liability where
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” McVay v. Sisters of
Mercy Health System, 399 F.3d 904, 907 (8th Cir. 2005) (citation omitted). As
such, qualified immunity entitles the defendants to avoid trial and the other
burdens of litigation. Id. “Evaluating a claim of qualified immunity requires a
two-step inquiry: (1) whether the facts shown by the plaintiff make out a
violation of a constitutional or statutory right, and (2) whether that right was
clearly established at the time of the defendant’s alleged misconduct. The
defendants are entitled to qualified immunity unless the answer to both of
these questions is yes.” Burton v. St. Louis Board of Police Commissioners,
731 F.3d 784, 791 (8th Cir. 2013) (citations omitted). In Burton, the Eighth
Defendants explain Rule 56(f) was amended in 2010, and its language
was incorporated into what is now Rule 56(d). The “new” Rule 56(d) requires
the non-movant to show “specified” reasons he cannot present facts essential
to justify his opposition to the summary judgment motion in order to be
granted an order deferring or denying the motion, or allowing extra time for
discovery.
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Circuit found there was no constitutional or statutory violation at the first step
of the qualified immunity inquiry, and affirmed the district court’s grant of
summary judgment on the plaintiff’s entire complaint. Id. at 799.
The party claiming qualified immunity “always has the burden to
establish the relevant predicate facts, and at the summary judgment stage, the
nonmoving party is given the benefit of all reasonable inferences.” Id. at 791.
If the facts taken in the light most favorable to the plaintiff do not establish a
constitutional or statutory violation, the qualified immunity inquiry ends and
summary judgment is appropriate, because there is no constitutional violation
for which the government official would need qualified immunity. Lytle v.
Bexar County, Texas, 560 F.3d 404, 410 (5th Cir. 2009)(citing, Saucier v. Katz,
533 U.S. 194, 201 (2001) modified on other grounds by Pearson v. Callahan,
555 U.S. 223, 236 (2009)); McVay, 399 F.3d at 909; Burton, 731 F.3d at 799.
In their summary judgment memorandum, the defendants address the
above-stated qualified immunity standard (Docket 51 at p. 5), then address the
showing necessary for Dale to prevail on each of his constitutional and
statutory claims. Id. at pp. 6-11 (sufficiency of RLUIPA claim), pp. 11-18
(sufficiency of equal protection claim), pp. 18-26 (sufficiency of deliberate
indifference claims), and pp. 27-32 (sufficiency of ADA and Rehab Act claims).
Defendants assert the qualified immunity inquiry ends at the first step and
summary judgment is appropriate as to all of Dale’s claims because the
defendants have committed no constitutional or statutory violations. Id. at
p. 5.
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Whether to grant or deny a Rule 56(f) motion for discovery requires
the court to balance the movant’s demonstrated need for discovery
against the burden such discovery will place on the opposing
party. In qualified immunity cases, the Rule 56(f) balancing is
done with a thumb on the side of the scale weighing against
discovery. Qualified immunity provides ‘an entitlement not to
stand trial or face the other burdens of litigation, conditions on the
resolution of the essential legal immunity question. For that
reason, once a defendant raises the defense, the trial court must
exercise its discretion in a way that protects the substance of the
qualified immunity defense. It must exercise its discretion so that
officials are not subjected to unnecessary and burdensome
discovery or trial proceedings.
Harbert International, Inc. v. James, 157 F.3d 1271, 1280 (11th Cir. 1998)
(citations omitted, punctuation altered).
In Harbert, the court denied the plaintiff’s request for discovery because
the defendants had provided sufficient information to the court to support their
motion for summary judgment based on qualified immunity and the plaintiff
failed to sufficiently articulate how further discovery would help him establish
the defendants violated clearly established constitutional law. Id. The same is
true here. The defendants have attached several exhibits to their statement of
material facts (Docket 52) including but not limited to: affidavits, inspection
reports, policies and procedures, protocols, the South Dakota DOC Inmate
Living Guide, forms, and Dale’s institutional medical records (Docket 53).
According to the certificate of service filed by defendants, copies of all of these
supporting attachments (including the medical records) were served upon Dale.
See, Docket 52, p. 6 and Docket 53, p. 2.
Although Dale asserts he needs further discovery to dispute the
defendants’ claims, he does not articulate with any specificity what further
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discovery he needs or how such discovery will assist him. As such, his request
to lift Judge Piersol’s previous order staying discovery will be denied. See,
Garner v. City of Ozark, 2014 WL 4627583 at *2 (11th Cir., Sept. 17, 2014)
(Rule 56(d) request denied after defendants made a summary judgment motion
based on qualified immunity because plaintiff did not articulate what facts she
expected to discover or offer any explanation of how those facts would be
relevant to the qualified immunity issue).
The Court will grant, however, Dale’s motion for an extension of time to
respond to the defendants’ motion for summary judgment. Dale has requested
an extension until February 23, 2015 to file his response. This request will be
GRANTED. Pursuant to Local Rule 7.1, the defendants may file a reply brief on
or before March 9, 2015.
B.

Motion for Independent Medical Expert (Docket 34)
Dale’s motion for appointment of an independent medical expert (Docket

34) remains pending. Dale cites FED. R. EVID. 706(a) and (b) in support of his
motion. As explained above, the purpose of Dale’s request is to “assist [him],
and this court, in determining whether the alleged kosher diet that the
defendants feed the plaintiff is nutritionally adequate to sustain the plaintiff in
good health and to determine if said diet is the reason why the plaintiff is
suffering from so many low blood sugar levels and other medical problems.”
In their summary judgment motion, the defendants assert there is no
genuine issue of material fact as to Dale’s Eighth Amendment deliberate
indifference claim regarding his medical care. Defendants have provided the
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affidavit of Misty Tolsma, the Clinical Supervising Nurse at MDSP, along with
Dale’s institutional medical records, in support of that assertion. See, Docket
52-5, 53 and 53-1.
28 U.S.C. ' 1915 entitles indigent prisoners to bring their legal claims to
court without pre-payment of the usual fees. There is, however, no similar
provision which allows the Court to appoint expert witnesses for the express
purpose of supporting a pro se litigant=s claims. AThe plain language of
section 1915 does not provide for the appointment of expert witnesses to aid an
indigent litigant.@ Hannah v. United States, 523 F.3d 597, 601 (5th Cir. 2008).
See also, Orr v. Valdez, 2011 WL 5239223 at *2 (D. Idaho) (same).
In Orr, the Court noted that ' 1915 does not authorize the Court to
appoint experts for indigent prisoners. Id. A federal court may appoint an
expert witness under FED. R. EVID. 706(a), and allocate the expert=s fees among
the parties. Id. AHowever, courts have recognized that, reasonably construed,
Rule 706 does not contemplate the appointment of, and compensation for, an
expert to aid one of the parties. In other words, the principal purpose of a
court-appointed expert is to assist the trier of fact from a position of neutrality,
not to serve as an advocate.@ Id. See also, Victor v. Lawler, 2011 WL 722387
at *1 (M.D. Pa.) (reiterating that the in forma pauperis statute, 28 U.S.C. '
1915, contains no provision authorizing the Court to order the appointment of
medical experts for indigent litigants at no cost, gathering cases).
The court’s authority to appoint an expert pursuant to FED. R. EVID. 706
is discretionary. Tuttamore v. Allred, 2013 WL 248163 at *1 (D. Colo. Jan. 23,
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2013). “The appointment of an expert pursuant to Rule 706 is not intended to
further partisan interests of either party, but to aid the Court, through the
services of an impartial expert in its assessment of technical issues.” Id. In
United States Marshals Service v. Means, 741 F.2d 1053, 1059 (8th Cir.
1984), the Eighth Circuit Court of appeals explained a district court may
appoint an expert witness to assist the court at the government’s expense only
in “compelling” circumstances. Id.
After the parties complete their briefing on the summary judgment
motion on the qualified immunity issue, the court will determine whether, in its
discretion, compelling circumstances require appointment of an expert in this
case to aid the court in assessing any of the issues presented. In the
meantime, Dale’s motion for appointment of an independent medical expert
(Docket 34) will be DENIED without prejudice.
CONCLUSION and ORDER
Accordingly, it is ORDERED:
(1)

Dale’s motion for independent medical expert (Docket 34) is
DENIED without prejudice, subject to reconsideration, if
necessary, after the pending summary judgment motion has been
decided; and

(2)

Dale’s motion for stay pending the completion of discovery or in the
alternative, motion for extension of time (Docket 57) is GRANTED
in part and DENIED in part as follows: The motion for stay of
discovery pending the completion of discovery is DENIED. The
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motion for an extension of time is GRANTED as follows: Dale shall
file his response to the defendants’ motion for summary judgment,
along with any supporting documents, on or before Monday,
February 23, 2015. Pursuant to Local Rule 7.1, the defendants
shall file their reply to Dale’s response, along with any supporting
documents, on or before Monday, March 9, 2015.
DATED this 15th day of January, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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