Dale v. Dejong et al

Filing 61

ORDER amending 52 Adoption of Report and Recommendation. Signed by U.S. District Judge Lawrence L. Piersol on 4/13/16. (DJP) (Main Document 61 replaced on 4/13/2016) (DJP).

UNITED STATES DISTRICT COURT

FILED

DISTRICT OF SOUTH DAKOTA

APR 13 2016

SOUTHERN DIVISION

~~

JAMES IRVING DALE,

4: 14-CV-04102-LLP

Plaintiff,
vs.

KELLY TJEERDSMA, MICHAEL
MEYER, REBECCA SCHIEFER,
GEORGE DEGLMAN, UNKNOWN
DEPARTMENT OF CORRECTIONS
MEDICAL STAFF, UNKNOWN
DEPARTMENT OF CORRECTIONS
STAFF, ROBERT DOOLEY, TAMMY
DEJONG, CORY TYLER, ANDRA
GATES, MICHAEL JOE HANVEY, MIKE
DOYLE,

ORDER AMENDING ADOPTION OF
REPORT AND RECOMMENDATION

Defendants.
Plaintiff, James Irving Dale, is an inmate at the South Dakota State
Prison in Sioux Falls, South Dakota. He filed a pro se civil rights lawsuit
pursuant to 42 U .S.C. § 1983 and later amended his complaint. Docket 1;
Docket 11.
On July 8, 2015, United States Magistrate Judge Veronica L. Duffy
issued a report and recommendation in response to defendants' motion to
dismiss. Docket 34. Magistrate Judge Duffy recommended this Court deny the
motion as to Dale's First Amendment, Eight Amendment, and retaliation
claims. Id. at 11, 14. Magistrate Judge Duffy also recommended that the Court
find Dale stated a claim for retaliation due to the exercising of his rights to

practice the Jewish faith and access the courts. Id. at 15. She recommended
dismissal of Dale's Due Process claim, defendants Dooley, Deglman, and
Schieffer, and claims in which Dale only sought monetary damages. Id. at 18,
20, 22. This Court adopted this recommendation.
On November 17, 2015, Magistrate Judge Duffy issued a report and
recommendation responding to Dale's motion for preliminary injunction.
Docket 46. The report states:
Mr. Dale originally asserted three claims in this case: (1) a First
Amendment freedom of religion claim based on his desire to eat a
kosher diet in conformity with his Jewish religion, (2) an Eighth
Amendment claim based on medical care he receives or fails to
receive in prison, and (3) a Due Process claim based upon alleged
retaliation. After ruling on defendants' motion to dismiss, the court
dismissed the Eighth Amendment and Due Process claims. The
only claim remaining in this lawsuit, then, is Mr. Dale's First
Amendment claim having to do with his diet.
Id. at 1-2. Dale objected. He raised the argument, amongst others, that his
Eighth Amendment and retaliation claims survived. Docket 4 7 at 1. The Court
denied his objections and adopted the report and recommendation. Docket 52.
The November report and recommendation, however, is incorrect. The
July report and recommendation states, "Liberally construed, Dale has
sufficiently alleged the defendants have been deliberately indifferent to his
serious medical needs in violation of the Eighth Amendment prohibition
against cruel and unusual punishment. The court recommends the
defendants' motion to dismiss be DENIED as to these claims." Docket 34 at
14. It also states, "Dale has, therefore, alleged facts sufficient to survive a
motion to dismiss on his retaliation claim. The court recommends the
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defendants' motion to dismiss be DENIED as to Dale's retaliation claims." This
Court adopted these recommendations. Docket 36.
As both the report and recommendation state, Defendants' motion to
dismiss was granted only as to "(A) all of Dale's Due Process Claims; (B) all of
the claims against Defendants Dooley, Deglman, and Schieffer; and (C) all
official capacity claims for money damages against all named defendants." Id.
at 1.
Dale's Eighth Amendment and retaliation claims were not dismissed. In
his amended complaint, he also names defendants other than those who were
dismissed and seeks injunctive relief for these claims. Docket 11 at 14.
Therefore, his First Amendment claim is not the only claim that survives.
Dale's due process claim was dismissed, as were claims against Defendants
Dooley, Deglman, and Schieffer, and official capacity claims for money
damages against all named defendants. His other claims survive.
Accordingly, it is ORDERED that the Court's order (Docket 52) is
amended. The claims which remain are the Eighth Amendment and related
claims and the First Amendment claim.
Dated this 13th day of April, 2016.
BY THE COURT:

ATTEST:
JOSEPH HAAS, CLERK
BY:

Q9Q)

Po~
Deputy

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