Gard v. Dooley et al

Filing 44

ORDER denying as moot 33 Motion for Hearing; granting 34 Motion to Amend/Correct; denying 8 Motion for Preliminary Injunction; denying 14 Motion to Appoint Counsel. Gard must file an amended complaint with the Court on or before September 26, 2014. Signed by U.S. District Judge Lawrence L. Piersol on 8/26/14. (DJP)

FILEL

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

REXGARD,
Plaintiff,
vs.
BOB DOOLEY, Warden and

Director of Prison Operations;

SUSAN JACOBS, Associate Warden;

MURIEL NAMINGA, Laundry Supervisor;

ANDY GATES, Supervisor in the

Medical Department;

KELLY SWANSON, Supervisor in the

Medical Department;

JENIFER BENBOOM, Dietician;

JOHN TREWIELLAR,

Food Service Manager; and

BARRY SCHROETER,

Food Service Manager,

Defendants.

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AUG 262014

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Civ. 14-4023-LLP

ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION,
DENYING MOTION TO APPOINT
COUNSEL, DENYING REQUEST FOR
HEARING, AND GRANTING
MOTION TO AMEND COMPLAINT

Plaintiff, Rex Gard, is an inmate at the Mike Durfee State Prison (MDSP) in Springfield,
South Dakota. On February 13,2014, Gard filed a pro se civil rights lawsuit pursuantto 42 U.S.c.
§ 1983. Docket 1. Now pending before the Court is Gard's motion for a preliminary injunction
(Docket 8), motion to appoint counsel (Docket 14), request for hearing (Docket 33), and motion
to amend complaint (Docket 34). The Court will address each motion in turn.

I.

The Court Denies Gard's Motion for Preliminary Injunction.
"A preliminary injunction is an extraordinary remedy." Roudachevski v. All-American Care

Centers, Inc., 648 F.3d 701, 705 (8th Cir. 2011) (citation omitted); see also Hughbanks v. Dooley,

788 F. Supp. 2d 988, 992 (D.S.D. 2011) ("[I]n the prison setting, a request for a preliminary
injunction 'must always be viewed with great caution because judicial restraint is especially called
for in dealing with the complex and intractable problems of prison administration.' " (quoting Goff
v. Harper, 60 F.3d 518,520 (8th Cir. 1995))). "The burden ofproving that a preliminary injunction
should be issued rests entirely with the movant." Goff, 60 F.3d at 520. To determine whether the

issuance of a preliminary injunction is appropriate, the court considers the following factors:
(1)
(2)

(3)
(4)

the threat of irreparable harm to the movant;
the state of balance between this harm and the injury that granting the injunction
will inflict on other parties litigant;
the probability that movant will succeed on the merits; and
the public interest.

Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). The court asks "whether

the balance of equities so favors the movant that justice requires the court to intervene to preserve
the status quo until the merits are determined." Id. at 113.
Although no single factor is determinative, "[fJailure to show irreparable harm is an
independently sufficient ground upon which to deny a preliminary injunction." Watkins Inc. v. Lewis,
346 F.3d 841,844 (8th Cir. 2003); see also Dataphase, 640 F.2d at 114 n.9 ("[T]he absence ofa
finding of irreparable injury is alone sufficient ground for vacating the preliminary injunction."). To
demonstrate irreparable harm, a plaintiff must show that the harm is "certain, great and of such
imminence that there is a clear and present need for equitable relief." Packard Elevator v. Interstate
Commerce Comm 'n, 782 F.2d 112, 115 (8th Cir. 1986). Notably, a "plaintiff must make a showing

of actual, substantial harm resulting from the alleged infringement." Travelers Express Co. v.
Transaction Tracking Technologies, Inc., 305 F. Supp. 2d 1090, 1095 (D. Minn. 2003) (citation

omitted).
In his memorandum in support of motion for preliminary injunction, Gard alleges that
Defendants are denying him medical care in contravention of medical orders. Docket 9 at 2. More
specifically, Gard asserts that Defendants refuse to provide him with a healthy, varied diet tailored
to his diabetic restrictions. Docket 10 at 1. Gard also asserts that Defendants have refused to
provide him with prescription eye glasses and medically prescribed diabetic socks. Id. at 1-2. In
an effort to demonstrate irreparable harm, Gard has asserted that ifhis diabetes goes "unchecked,"
he could suffer "organ failure as well as loss of limbs, as well as the possibility of a fractured leg
which could cause pain and loss of mobility for the rest of [his] life." Docket 9 at 2. Gard also
notes that, without prescription eye glasses, he has to borrow glasses from another inmate in order
to read. Docket 10 at 2.
Defendants refute Gard's assertions by representing that Gard is, in fact, provided with a
special diet, but that he often refuses to follow the recommended diet. Docket 3 8 at 4. Furthermore,
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Defendants assert that Gard also refuses "to follow the recommendations of Health Services 'to
decrease his purchasing ofjunk food from the commissary.' " Id. Defendants also point out that,
as conceded in Gard's motion to amend complaint (Docket 34 at 2), Defendants provided Gard
with footwear on February 13 or 14,2014, and diabetic socks on May 26,2014. Docket 38 at 5-6.
Lastly, Defendants represent that prescription glasses were recently ordered for Gard and will be
provided to him once they arrive. Id. at 6. Gard has not responded to Defendants' assertions.
In light ofDefendants ' assertions and Gard' s concession, the Court finds that Gard' s issues
related to the availability of prescription eye glasses and diabetic socks have been adequately
resolved so as to eliminate the threat of irreparable harm at this time. As for Gard's issue related
to his diet, the Court finds that Gard has failed to establish irreparable harm. Again, irreparable
harm is harm that is "certain, great and of such imminence that there is a clear and present need for
equitable relief." Packard Elevator, 782 F.2d at 115. The harm discussed in Gard's memorandum
in support of motion for preliminary injunction is not actual, substantial harm but speculative harm,
and "[p]ossible or speCUlative harm is not enough." Northland Ins. Companies v. Blaylock, 115 F.
Supp.2d 1108, 1116 (D. Minn. 2000). Moreover, based on the uncontested information provided
by Defendants, it appears that Gard is not making efforts to comply with his recommended diet.
Because failure to demonstrate irreparable harm is sufficient ground for denying a preliminary
injunction, the Court denies Gard's motion for preliminary injunction.

II.

The Court Denies Gard'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 Gard's claims are not
complex, and Gard appears able to adequately present his § 1983 claims at this time. His motion
to appoint counsel (Docket 14) is therefore denied.

III.

The Court Denies Gard's Request for Hearing.
Gard requests a hearing for the purpose of resolving his motion for preliminary injunction.

Docket 33. Because this order resolves such motion, the Court finds that Gard is not entitled to a

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hearing at this time.

IV.

The Court Grants Gard's Motion to Amend Complaint.
Gard requests leave to amend his complaint to specifically state that he intended to bring

this action against Defendants in their individual and official capacities, to add defendants, and to
add factual information. Docket 34. A motion for leave to amend is committed to the sound
discretion of the district court. Bell v. Allstate Life Ins. Co., 160 F.3d 452,454 (8th Cir. 1998)
(citations omitted). "A party may amend its pleading once as a matter ofcourse within ... 21 days
after serving it, or ... if the pleading is one to which a responsive pleading is required, 21 days
after service of a responsive pleading." Fed. R. Civ. P. 15(a)(l )(A)-{B). Here, Defendants filed
their Answer on June 19,2014. Docket 27. Less than 21 days later, on July 2,2014, Gard filed his
motion to amend complaint. Docket 34. Gard is therefore entitled to amend his complaint "once
as a matter of course." Accordingly, it is
ORDERED that Gard's motion for preliminary injunction (Docket 8) is denied.
IT IS FURTHER ORDERED that Gard' s motion to appoint counsel (Docket 14) is denied.
IT IS FURTHER 0 RDERED that Gard' s request for hearing (Docket 33) is denied as moot.
IT IS FURTHER ORDERED that Gard's motion to amend complaint (Docket 34) is
granted. Gard must fil&.an amended complaint with the Court on or before September 26, 2014.
Dated this

W'" day of August, 2014.
awrence L. Piersol
nited States District Judge

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ATTEST:

JOSEPH
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B y : Q j ~D
Deputy

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