Gard v. Dooley et al

Filing 229

ORDER granting 198 to the extent that the remaining ADA claims are as set forth in this Order; denying 223 Renewed Motion to File Summary Judgment and denying as moot 226 Plaintiff's Objection to Renewed Motion to File Summary Judgment; de nying [205-220] Applications for Writ of Habeas Corpus; appointing John Hinrichs to represent the Plaintiff. Plaintiff shall, through counsel, file a Witness List with the names of each witness he requests be subpoenaed for trial, with good cause shown why that witness should be subpoenaed. A new court trial date will be scheduled by subsequent Order. Signed by U.S. District Judge Lawrence L. Piersol on 8/31/17. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

IT

*******************************

3 1 2017
^

^

^^^^ ^

*

CtERK
*

REX CARD,

CIV 14-4023

*

Plaintiff,

*

*
*

vs.
*

BOB DOOLEY,Chief Warden,

in his official capacity;
SUSAN JACOBS, Associate Warden,
in her official capacity;
MURIEL NAMINGA,Laundry Supervisor,
in her official capacity;
ANDRA GATES, Supervisor, DOH,
in his official capacity;

KELLY SWANSON,Supervisor, DOH,
in her official capacity;

*
*

JENIFER BEMBOOM,CBM Food Service, *

in her official capacity;

*

JOHN TREWIELLAR,CBM Food Service, *

in his official capacity;

*

BARRY SCHROETER,CBM Food Service,*

in his official capacity;
JENIFER STANWICK,Deputy Warden,
in her official capacity;

*
*
*

REBECCA SCHEIFFER, Associate

*

Warden,in her official capacity;

*

LELAND TJEERDSMA,Major,

*

in his official capacity;

*

TRAVIS TJEERDSMA,Unit Staff,

*

in his official capacity;

*

TAMMY DeJONG,Unit Staff,

*

in her official capacity;

*

RANDY STEVENS,Property Officer,

*

in his official capacity;

*

CORPORAL CROPPER, Corporal,

*

in his official capacity;

*

RANDY MILNE, Corrections Officer,

*

in his official capacity; and

*

JESSICA LUKE,Office Staff, DOH,

ORDER

in her official capacity;

*
*

Defendants.

*
*

On August 8,2017,PlaintiffRex Gard filed apleading entitled Question ofLaw,Doc. 198,
which concluded with Plaintiff stating:

Plaintiffis now unsure which of his claims still stand and which ofthe defendants

he can name for the deprivations he has suffered during the twelve years of his
incarceration and wishes the Court to clarify the parameters ofhis remaining ADA
claims.

On August 18,2017,the Defendants filed a renewed Motion to File Summary Judgment,
Doc. 223. In that document, it was stated:

The sole remaining ADA claim is limited to whether Defendants "failed to give
him a diabetic diet, denied him access to particular religious ceremonies,the law
library, day hall, the recreation yard and the restrooms."

The Court agrees those are the remaining ADA claims. The Defendants go on to claim, that if
given the opportunity,they can show thatthe Plaintiffs remaining ADA claims also lack any merit
and that a Court trial in this matter may be unnecessary.

For the reasons stated by Magistrate Judge Duffy,the time for making such a Motion has

long since passed. The Court in its Order of August 1,2017, pointed out that its review of Judge
Duffy's Order is a limited review, and pursuant to 28 U.S.C. § 636(b)(1)(A) the party seeking
reconsideration of such an Order must make a showing to this Court that the Order is clearly

erroneous or contrary to law, and that standard has not changed. No good cause has been shown
for the failure to timely file a Motion for Summary Judgment on Plaintiffs ADA claims as Judge

Duffy ruled. Judge Duffy's ruling is not clearly erroneous nor is it contrary to law. Accordingly,
the Motion for allowance to late file a Summary Judgment Motion is denied. The siibstance ofthe
Motion does not get considered as a new motion where it already has been ruled upon.
The Plaintiff had originally requested nominal damages but the nominal damages were

soughtin Plaintiffs constitutional claims under 18 U.S.C.§ 1983,and the § 1983 claims have been
dismissed. The Court also notes that 42 U.S.C.§ 1997e(e) provides that in prisoner cases there

cannot be compensatory damages claimed for mental and emotional harm without a prior showing

of physical injury. Accordingly,the relief now requested is equitable in nature in the form of an
injunction request. That equitable relief is to be the subject of a court trial.
Plaintiff is advised that good cause must be shown for a witness that Plaintiff requests be

subpoenaed for a trial. The Plaintiff previously submitted requests for sixteen (16) Writs of
Habeas Corpus without any showing as to why the proposed witnesses would have any relevance
to the claims. Now that the ADA claims have been clarified, the Plaintiff can through counsel
submit a new witness list with cause shown as to why a particular witness should be subpoenaed.

The Court will subsequently set a date for the court trial. Given that this case will go to trial, the

Court appoints Attorney John Hinrichs of Sioux Falls, South Dakota, as counsel for the Plaintiff.
The parties should be aware that the Magistrate Judge would be available for a mediation
ofthis case as it appears it is a case which could be resolved by mediation. Accordingly,
IT IS'ORDERED:

1.

That Plaintiffs Question ofLaw,Doc. 198,is granted to the extent that the
remaining ADA claims are as set forth above.

2.

That Defendants'Renewed Motion to File Summary Judgment,Doc. 223,
' is denied, and Plaintiffs Objection to Renewed Motion for Summary
Judgment, Doc. 226,is denied as moot.

3.

That Plaintiffs sixteen(16)Applications for Writ of Habeas Corpus,Doc.
205-220, are denied.

4.

That Plaintiff shall through his counsel file a Witness List with the names
ofeach witness he requests be subpoenaed for trial, with good cause shown
why that witness should be subpoenaed.

5.

That the Court appoints Attorney John Hinrichs to represent the Plaintiff.

6.

That a new date for the eourt trial will be scheduled by subsequent Order.

■2iiT
Dated this S\ -iiay of August, 2017BY THE COURT:

iawrence L. Piersol
United States District Judge

ATTEST:

JOSEPH HAAS, CLERK
BY:

Deputy