Gard v. Dooley et al

Filing 185

ORDER denying 179 Motion to Extend; denying 181 Motion to Compel; denying 182 Motion for Medical Expert. Signed by US Magistrate Judge Veronica L. Duffy on 7/20/2017. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

REX GARD,

4:14-CV-04023-LLP
Plaintiff,

vs.
BOB DOOLEY, CHIEF WARDEN,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY; SUSAN JACOBS,
ASSOCIATE WARDEN, INDIVIDUALLY
AND IN HER OFFICIAL CAPACITY;
MURIEL NAMINGA, LAUNDRY
SUPERVISOR, INDIVIDUALLY AND IN
HER OFFICIAL CAPACITY; ANDRA
GATES, SUPERVISOR, DOH,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY; KELLY SWANSON,
SUPERVISOR, DOH, INDIVIDUALLY
AND IN HER OFFICIAL CAPACITY;
JENIFER BEMBOOM, CBM FOOD
SERVICE, INDIVIDUALLY AND IN HER
OFFICIAL CAPACITY; JOHN
TREWIELLAR, CBM FOOD SERVICE,
INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY; BARRY SCHROETER, CBM
FOOD SERVICE, INDIVIDUALLY AND
IN HIS OFFICIAL CAPACITY; JENIFER
STANWICK, DEPUTY WARDEN,
INDIVIDUAL AND OFFICIAL CAPACITY;
REBECCA SCHEIFFER, ASSOCIATE
WARDEN, INDIVIDUAL AND OFFICIAL
CAPACITY; LELAND TJEERDSMA,
MAJOR, INDIVIDUAL AND OFFICIAL
CAPACITY; TRAVIS TJEERDSMA, UNIT
STAFF, INDIVIDUAL AND OFFICIAL
CAPACITY; TAMMY DEJONG, UNIT
STAFF, INDIVIDUAL AND OFFICIAL

ORDER DENYING PLAINTIFF'S
MOTION TO EXTEND, MOTION TO
COMPEL, AND MOTION FOR
APPOINTMENT OF A MEDICAL
EXPERT
DOCKET NOS. 179, 181 & 182

CAPACITY; RANDY STEVENS,
PROPERTY OFFICER, INDIVIDUAL AND
OFFICIAL CAPACITY; CORPORAL
CROPPER, CORPORAL, INDIVIDUAL
AND OFFICIAL CAPACITY; RANDY
MILNE, CORRECTIONS OFFICER,
INDIVIDUAL AND OFFICIAL CAPACITY;
JESSICA LUKE, OFFICE STAFF, DOH,
INDIVIDUAL AND OFFICIAL CAPACITY;
DOC STAFF, UNKNOWN AT THIS TIME,
INDIVIDUAL AND OFFICIAL CAPACITY;
AND CBM FOOD SERVICES
EMPLOYEES, UNKNOWN AT THIS
TIME, INDIVIDUAL AND OFFICIAL
CAPACITY;
Defendants.

Pending before the court is Rex Gard’s pro se complaint pursuant to Title
II of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.1
Mr. Gard is currently serving a 65-year sentence at the Mike Durfee State
Prison (MDSP) in Springfield, South Dakota. Mr. Gard moves the court for an
order compelling defendants to provide certain discovery. See Docket No. 181.
Because defendants have not provided the discovery Mr. Gard thinks he is
entitled to, he also moves to extend the discovery deadline. See Docket No.
179. Finally, Mr. Gard moves the court for the appointment of a medical
expert. See Docket No. 182.

Mr. Gard initially asserted other claims in his complaint pursuant to 42
U.S.C. § 1983. However, defendants moved for summary judgment in their
favor on all of Mr. Gard’s claims except the ADA claim. Summary judgment
was granted to defendants on all those other claims. See Docket No. 149.
Therefore, only the ADA claim, for which summary judgment was not sought,
remains.
1

2

Mr. Gard's claim under Title II of ADA is that defendants failed to give
him a diabetic diet, denied him access to particular religious ceremonies, the
law library, the day hall, the recreation yard, and the restrooms. See Docket
No. 1 at p. 9. Mr. Gard served defendants with discovery requests directed to
Muriel Naminga asking primarily about the procedure at the MDSP pertaining
to providing inmates with diabetic shoes and socks. Defendants objected to
providing this discovery on two grounds: (1) Ms. Naminga was on indefinite
medical leave and it is unknown when or if she will return to work and (2)
Mr. Gard's one remaining claim under the ADA does not contain any
allegations related to diabetic shoes and socks. As to the latter, defense
counsel is correct. Since Mr. Gard's one last claim contains no allegations
regarding diabetic shoes and socks, the discovery requested is not relevant.
The court accordingly denies Mr. Gard's motion to compel in this regard.
Other than the discovery with regard to Ms. Naminga, Mr. Gard never
specifies what particular discovery he believes he is entitled to, how that
discovery is relevant to his ADA claim, or what good faith steps he went
through to try to resolve his discovery dispute with defendants before filing the
instant motion. The court notes that Mr. Gard has filed numerous motions to
compel and this court has previously patiently and at length explained to him
the prerequisites for filing such a motion, including the need to engage in a
good faith effort to resolve the matter without the court's involvement and the
necessity to tell the court about the exhaustion of those efforts. For all these
reasons, both substantive and procedural, the court denies Mr. Gard's motion.
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Mr. Gard's motion to extend the discovery deadline in this case is
premised on his conception that there is outstanding discovery to which he is
entitled that he has not yet received. As explained above, Mr. Gard has not
shown that to be the case. Accordingly, the court denies the motion to extend.
Finally, Mr. Gard moves again for the appointment of a medical expert.
The court denies this motion, again, as premature. The last remaining claim is
premised on Mr. Gard's diabetic condition and alleges defendants have failed to
provide reasonable accommodation for that condition. In previous litigation in
this case, defendants have never denied that Mr. Gard indeed has a diabetes
diagnosis. Mr. Gard's entire medical record has been placed on file in this
matter. Furthermore, it is unknown what elements of Mr. Gard's prima facie
case under the ADA defendants ultimately will take issue with. Therefore, it is
unknown if a medical expert will be needed. Should this case go to trial, or
should the need for a medical expert become evident, the court will revisit this
issue.
Based upon the foregoing, it is hereby
ORDERED that Mr. Gard’s motion for extension of the discovery deadline
[Docket No. 179] is denied. It is further
ORDERED that Mr. Gard's motion to compel [Docket No. 181] is denied.
It is finally also
ORDERED that Mr. Gard's renewed motion for the appointment of a
medical expert [Docket No. 182] is denied.
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NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. ' 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. ' 636(b)(1)(A),
unless an extension of time for good cause is obtained. See FED. R. CIV. P.
72(a); 28 U.S.C. ' 636(b)(1)(A). Failure to file timely objections will result in
the waiver of the right to appeal questions of fact. Id. Objections must be
timely and specific in order to require review by the district court. Thompson
v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir.
1986).
DATED July 20, 2017.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge

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