Caskey v. South Dakota State Penitentiary et al
Filing
33
ORDER denying 28 Motion for Service by Publication; denying 31 Motion to Appoint Counsel. Signed by US Magistrate Judge Veronica L. Duffy on 12/10/2014. (JLS)
FILED
UNITED STATES DISTRICT COURT
DEC 10 2014
DISTRICT OF SOUTH DAKOTA
~~
SOUTHERN DIVISION
CODY RAY CASKEY,
4: 14-CV-04010-KES
Plaintiff,
vs.
DR. EUGENE REGIER, IN HIS
INDIVIDUAL CAPACITY; RYAN
MANSON, CNP, IN HIS INDIVIDUAL
CAPACITY; DARIN YOUNG, IN HIS
INDIVIDUAL AND OFFICIAL
CAPACITIES; JUSTIN ELKINS, IN HIS
INDIVIDUAL AND OFFICIAL
CAPACITIES; KAYLA THEILAN, IN HER
INDIVIDUAL AND OFFICIAL
CAPACITIES; JANE DOES, IN THEIR
INDIVIDUAL AND OFFICIAL
CAPACITIES; JOHN DOES, IN THEIR
INDIVIDUAL AND OFFICIAL
CAPACITIES; AND DENNIS LAWSING,
FORMER CAPTAIN FOR D.O.C.,
INDIVIDUAL AND OFFICIAL
CAPACITY;
ORDER ON MOTIONS
(FOR SERVICE BY PUBLICATION,
DOCKET # 28)
FOR APPOINTMENT OF COUNSEL,
DOCKET # 31)
Defendants.
INTRODUCTION
Plaintiff, Cody Ray Caskey, is an inmate at the South Dakota State
Penitentiary (,'SDSP") in Sioux Falls, South Dakota. He has filed a civil rights
lawsuit pursuant to 42 U.S.C. § 1983. Liberally construed, Caskey has alleged
the defendants have violated his civil rights in various ways, including failure
to provide medical care and failure to protect him against assault by a prison
/
guard, both in violation of the Eighth Amendment prohibition against cruel and
unusual punishment.
On October 8, 2014, Judge Schreier entered an Order allowing Caskey to
amend his complaint. Docket 21. On July 31, September 12, and October 20,
2014, Caskey filed his Amended Complaint (Docket 18, 19 and 22)1 and on
November 17, 2014, the defendants filed their Answer to the Amended
Complaint. Docket 27.
Caskey, however, has not been able to serve proposed
defendant "Dennis Lawsing" because that person is no longer employed by the
SDSP. See Docket 28. Caskey now seeks to have "Dennis Lawsing"2 served by
publication (Docket 28) and he requests appointment of counsel to represent
him in this matter (Docket 31). The defendants have filed a response (Docket
32) to Caskey's motion for service by publication.
DISCUSSION
A.
Motion for Service By Publication (Docket 28)
Fed. R. Civ. P. 4(e)(1) provides that service of a summons may be made
"following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located .. [.]" South
Dakota law allows for service by publication when the defendant cannot be
found in South Dakota. See SDCL § 15-9-7. That statute also requires,
Caskey also filed a supplement on June 2, 2014, (Docket 14) before Judge
Schreier entered her Order
1
Based upon previous prisoner lawsuits, the court believes the proper spelling
for the former captain described in Caskey's Complaint may be "Dennis
Lauseng."
2
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however, that the Plaintiff show by affidavit "due diligence" in attempting to
find the Defendant within the state. Id.
Defendants urge the court to deny Caskey's motion for service by
publication because they assert he has not shown due diligence by affidavit or
otherwise. The explanation Caskey provides regarding his efforts to serve
Lawsing is that his summons was returned unserved and Lawsing is no longer
employed at SDSP.
Docket 28. Because Caskey is incarcerated and is
proceeding in forma pauperis the usual methods for due diligence in
determining Lawsing's whereabouts (a private process server, or the internet,
for example) are not at Caskey's disposal.
Lawsing is a former employee of the SDSP. The human resources or
litigation departments at the SDSP can be of assistance in ascertaining his
current whereabouts. The protocol outlined in Morris v. Barr, 2011 WL
3859711 (S.D. Cal. Aug. 31, 2011) should be followed. In that case, the court
ordered the prison to work directly with the Marshals Service to provide it with
a confidential memorandum containing the address of the prison's former
employee so the former employee could be served with the prisoner's lawsuit.
B.
Motion for Appointment of Counsel (Docket 31)
"Indigent civil litigants do not have a constitutional or statutory right to
appointed counsel." Davis v. Scott, 94 F.3d 444,447 (8th Cir. 1996) (citation
omitted). "Rather, when an indigent prisoner has pleaded a nonfrivolous
cause of action, a court 'may' appoint counsel. See 28 U.S.C. § 1915(e)."
Phillips v. Jasper County Jail, 437 F.3d 791, 794 (8th Cir. 2006) (citations
3
omitted, emphasis in original). The factors relevant to evaluating a request for
appointment of counsel include "whether both the plaintiff and the court will
benefit from the appointment of counsel, taking into account the factual and
legal complexity of the case, the presence or absence of conflicting testimony,
and the plaintiffs ability to investigate the facts and present his claim." Davis,
94 F.3d at 447. This case is not factually complex. Caskey alleges violations of
the Eighth Amendment because he claims he has not received adequate
medical treatment and that was assaulted by a prison employee. This case is
not legally complex. The law regarding Caskey's Eighth Amendment claim is
well-settled and requires that Caskey "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
citation omitted). The law further provides that "[d]eliberate 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." Dulany v. Carnahan, 132 F.3d
1234, 1239 (8th Cir. 1997) (citing Estelle v. Gamble, 429 U.S. 97, 104-06
(1976)). Further, regarding Caskey's assault claim, "An Eighth Amendment
4
claim for failure to protect is comprised of two elements. First, an inmate must
show that [he] is incarcerated under conditions posing a substantial risk of
serious harm. Second, the inmate must establish that the defendant prison
official recklessly disregarded that risk." Riley v. Olk-Long, 282 F.3d 592, 595
(8th Cir. 2002) (citations omitted, punctuation altered).
Like all individuals untrained in the law, Caskey may benefit from the
assistance of counsel, but the court does not find it necessary to appoint
counsel in this matter at this time. The court would not benefit from the
assistance of counsel at this point in the proceedings. Caskey, although
incarcerated, is able to investigate the facts of his claim. It is not clear at the
present time whether there will be conflicting testimony in this case. The legal
issues involved do not appear to be complex at this point in the proceedings.
Caskey's motion for counsel will be denied without prejudice.
CONCLUSION and ORDER
Based on the foregoing, IT IS ORDERED:
(1) Caskey's Motion for Service by Publication (Docket 28) is DENIED.
Counsel for the defendants, however, shall contact the human resources
and/ or litigation department for the SDSP and shall, on or before
December 22,2014, provide the USMS with a confidential memorandum
containing: the proper spelling for former DOC employee, Capt. Dennis
Lawsing's name and his last known address;
5
(2) Upon receipt of the information described in Paragraph (1) the USMS
shall serve the summons and Caskey's Complaint (Docket 1) and
Amended Complaint (Docket 14, 18, 19, and 22) upon Dennis Lawsing.
(3) Caskey's Motion for Appointment of Counsel (Docket 31) is DENIED
without prejudice.
DATED this
~ay of December, 2014.
BY THE COURT:
'. I
il~
VERONICA L. DU
United States Magistrate
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