Gard v. Dooley et al

Filing 75

ORDER denying 63 Motion to Appoint Counsel; denying 66 Motion to Extend Deadlines; denying 68 Motion to Sever; granting 72 Motion for Protective Order. Signed by US Magistrate Judge Veronica L. Duffy on 2/13/2015. (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
CAPACITY; RANDY STEVENS,
PROPERTY OFFICER, INDIVIDUAL
AND OFFICIAL CAPACITY; CORPORAL
CROPPER, CORPORAL, INDIVIDUAL
AND OFFICIAL CAPACITY; RANDY
MILNE, CORRECTIONS OFFICER,
INDIVIDUAL AND OFFICIAL

ORDER ON MOTIONS:
DEFENDANTS’ MOTION FOR
PROTECTIVE ORDER
[DOCKET NO. 72]
PLAINTIFF’S MOTION TO SEVER
[DOCKET NO. 68]
PLAINTIFF’S MOTION TO EXTEND
DEADLINES
[DOCKET NO. 66]
PLAINTIFF’S MOTION TO APPOINT
COUNSEL
[DOCKET NO. 63]

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.

INTRODUCTION
This matter is before the court on plaintiff Rex Gard’s complaint
pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act (“ADA”),
42 U.S.C. §§ 12131 – 12165. See Docket No. 1. The district court, the
Honorable Lawrence L. Piersol, referred this matter to this magistrate judge for
the resolution of non-dispositive motions and for recommended dispositions on
dispositive motions. This referral was made pursuant to 28 U.S.C. § 636(b)(1)
and the October 16, 2014, standing order of the Honorable Karen E. Schreier,
district court judge. Four motions are pending and are addressed herein.
FACTS
The background of the instant motion is that Mr. Gard, an inmate at a
South Dakota state prison, alleges that defendants failed to give him special
diabetic socks and diabetic shoes, which were medically required by Mr. Gard’s
medical condition—insulin-dependent diabetes. He also alleges that
defendants have refused to provide him with a diabetic diet. Mr. Gard also
alleges that he needs prescription glasses and that defendants have refused to
give him a pair of glasses that fit his head. Each of these allegations form the
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basis for Mr. Gard’s assertion that defendants have been deliberately
indifferent to his serious medical needs in violation of the Eighth Amendment
to the United States Constitution. See Docket No. 1 at pp. 2-8.
In addition, Mr. Gard alleges that defendants have violated Title II of the
ADA by refusing to give him a specialized diet, denying 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. The district court screened Mr. Gard’s
complaint and found that Mr. Gard’s complaint set forth claims sufficient to
survive initial scrutiny under 28 U.S.C. § 1915. See Docket No. 11. The court
therefore ordered the complaint and summonses to be served on defendants.
Defendants then duly filed an answer. See Docket No. 27.
DISCUSSION
A.

Mr. Gard’s Second Motion to Appoint Counsel—Docket No. 63
Previously, Mr. Gard filed a motion to appoint counsel on April 16, 2014.

See Docket No. 14. The district court denied that motion. See Docket No. 44.
The court found that the issues in this case were not factually complex and
that Mr.Gard was adequately able to present his claims. Id.
"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). 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

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presence or absence of conflicting testimony, and the plaintiff's ability to
investigate the facts and present his claim." Id.
This case is not legally or factually complex. Furthermore, the district
court set forth the law governing Mr. Gard’s Eighth Amendment and ADA
claims in its screening opinion. See Docket No. 11. In addition, the court has
ruled on or been referred four separate cases in which Mr. Gard has
represented himself. See Gard v. Kaemingk, Civ. No. 13-4062; Gard v. Dooley,
Civ. No. 14-4023; Gard v. Dooley, Civ. No. 14-4179; and Gard v. Dooley, Civ.
No. 14-4183. The court, from first-hand observation of Mr. Gard’s
representation of himself, finds that he is adequately able to articulate his
claims and argue legal precedent.
Mr. Gard’s second motion for appointment of counsel sets forth no new
facts or grounds for requesting court-appointed counsel than were urged in his
first motion. See Docket Nos. 14 & 63. Accordingly, the court denies
Mr. Gard’s second motion for the appointment of counsel.
B.

Defendants’ Motion for Protective Order—Docket No. 72
Defendants pleaded the affirmative defense of qualified immunity in their

answer. See Docket No. 27, p. 30. They now seek an order from the court
staying all discovery in this matter until a dispositive motion on the issue of
qualified immunity is filed by defendants and ruled upon by the court. See
Docket Nos. 72, 73 & 74.
To determine whether an official may partake of qualified immunity, two
factors must be determined: (1) whether the facts that plaintiff has shown
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make out a violation of a constitutional right and (2) whether that
constitutional right was “clearly established” at the time of the official’s acts.
Saucier v. Katz, 533 U.S. 194, 201 (2001). Qualified immunity protects
government officials from liability and from having to defend themselves in a
civil suit if the conduct of the officials “does not violate clearly established
statutory or constitutional rights.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Qualified immunity is immunity from suit, not just a defense to
liability at trial. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). It protects
defendants from the cost and time of enduring pretrial discovery and motions.
Id.
“Qualified immunity gives government officials breathing room to make
reasonable but mistaken judgments,” and “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’ ” Stanton v. Sims, ___
U.S. ___, 134 S. Ct. 3, 5 (2013) (quoting Ashcroft v. al-Kidd, ___ U.S. ___, 131 S.
Ct. 2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986))).
“ ‘We do not require a case directly on point’ before concluding that the law is
clearly established, ‘but existing precedent must have placed the statutory or
constitutional question beyond debate.’ ” Stanton, 134 S. Ct. at 5.
The Supreme Court has stated that “if the defendant does plead the
[qualified] immunity defense, the district court should resolve that threshold
question before permitting discovery.” Crawford-El v. Britton, 523 U.S. 574,
598 (1998) (citing Harlow, 457 U.S. at 818) (emphasis added). Only if the
plaintiff’s claims survive a dispositive motion on the issue of qualified immunity
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will the plaintiff “be entitled to some discovery.” Id. Even then, the Court has
pointed out that Fed. R. Civ. P. 26 “vests the trial judge with broad discretion
to tailor discovery narrowly and to dictate the sequence of discovery.” Id. Such
discretion includes the ability to establish limits on the number of depositions
and interrogatories, to limit the length of depositions, to limit the number of
requests to admit, to bar discovery on certain subjects, and to limit the time,
place, and manner of discovery as well as its timing and sequence. Id.
Here, defendants have asserted the defense of qualified immunity which
applies to Mr. Gard’s § 1983 claim. However, Mr. Gard has also pleaded a
claim under the ADA, to which the defense of qualified immunity does not
apply. If the court were to allow discovery to go forward on the ADA claim and
stay discovery as to only the § 1983 claim, that would defeat the purposes of
the qualified immunity defense as Mr. Gard’s two claims substantially overlap
factually. Accordingly, the court determines that the best course is to grant a
stay on all discovery, rule on the defendants’ qualified immunity defense, and
then to allow discovery and motions practice on the ADA claim thereafter as
appropriate.
Defendants state an intent to file a dispositive motion on qualified
immunity on or before July 1, 2015, the current deadline for filing dispositive
motions. In view of the narrow issue which such a motion would encompass,
and in view of Mr. Gard’s other ADA claim which is not subject to the qualified
immunity defense, the court believes that it would unnecessarily delay this
lawsuit if defendants waited until July 1 to file a qualified immunity motion.
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Accordingly, the court sets forth an alternative schedule for the filing of the
motion as set forth below.
C.

Plaintiff’s Motion to Extend Deadlines—Docket No. 66
Mr. Gard moves to extend the discovery deadline in this case. See

Docket No. 66. In light of the court’s decision, above, to stay all discovery in
this case pending a determination of whether defendants are entitled to
qualified immunity, the court denies this motion as moot. Should Mr. Gard
have claims that survive the qualified immunity determination, the court will
set new deadlines for discovery and for the handling of the remainder of this
case.
D.

Plaintiff’s Motion to Sever—Docket No. 68
Mr. Gard notes that, at present, the South Dakota Attorney General’s

Office is representing all named defendants in this action. See Docket No. 68;
Docket No. 27. However, Mr. Gard alleges that CBM Food Services Inc. is a
private contractor and acts “without the direction of the administration of the
prison system” in providing services and product to the prison system. See
Docket No. 68. Therefore, Mr. Gard seeks separate trials for the CBM
defendants.
As discussed above, this court is staying all discovery in this matter until
the matter of defendants’ qualified immunity defense is determined. As such,
Mr. Gard’s motion is premature. Defendants will have to address as part of
their qualified immunity motion whether the CBM defendants are entitled to

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partake of immunity. The court denies Mr. Gard’s motion at this juncture as
premature.
CONCLUSION
Based on the foregoing law and analysis, the court hereby
ORDERS that Mr. Gard’s motion for appointment of counsel [Docket No.
63] is DENIED. The court further
ORDERS that Mr. Gard’s motion to extend the discovery deadlines
[Docket No. 66] is DENIED. A further scheduling order will issue from the
court, if appropriate, following a determination as to whether defendants are
entitled to qualified immunity. The court further
ORDERS that Mr. Gard’s motion to sever defendants [Docket No. 68] is
DENIED without prejudice to make this motion again, if appropriate, following
the determination of qualified immunity. Finally, the court
ORDERS that defendants’ motion for a protective order is GRANTED.
Defendants are hereby directed to file a motion on the issue of qualified
immunity on or before April 7, 2015. Mr. Gard is directed to respond to
defendants’ motion on or before May 1, 2015. Defendants must file their reply
on or before May 18, 2015.
DATED this 13th day of February, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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