Bell v. Voight et al

Filing 57

ORDER denying 30 Motion for Preliminary Injunction; denying 41 Motion for Copies; denying 47 Motion for Waiver; denying 52 Motion for Recusal; granting in part and denying in part 56 Motion for Subpoenas. Signed by US Magistrate Judge Veronica L. Duffy on 4/21/2015. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SHANE DOUGLAS BELL,

4:14-CV-04111-LLP

Plaintiff,
vs.
WILLIAM VOIGHT, CORRECTIONS
OFFICER AT SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; JEREMY
WENDLING, CORRECTIONS OFFICER
SGT. AT SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; SAMUEL YOST,
CORRECTIONS OFFICER, CPL. AT
SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; JESSICA COOK,
UNIT MANAGER AT SOUTH DAKOTA
STATE PENITENTIARY, INDIVIDUAL
AND OFFICIAL CAPACITY; JOHN DOE
#1, CORRECTIONS OFFICER AT
SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; DARIN YOUNG,
WARDEN AT SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; AND JOHN DOE
#2, CORRECTIONS OFFICER AT
SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY;

ORDER ON PLAINTIFF’S MOTIONS:
MOTION FOR PRELIMINARY
INJUNCTION (DOC. 30);
MOTION FOR COPIES (DOC. 41);
MOTION FOR WAIVER (DOC. 47);
MOTION FOR RECUSAL &
TO COMPEL (DOC. 52); AND
MOTION FOR SUBPOENAS
(DOC. 56)

Defendants.

INTRODUCTION
Plaintiff, Shane D. Bell (“Bell”) filed a pro se lawsuit pursuant to 42
U.S.C. § 1983. Bell alleges the defendants have violated his Constitutional
rights in various ways. In Count I, he alleges the defendants violated the

Eighth Amendment prohibition against cruel and unusual punishment.
Specifically, Bell alleges he was assaulted by a fellow inmate and that, although
he eventually had surgery for his injuries, the defendants ignored his serious
medical need for eight days before he received treatment.
In Count II, Bell alleges another violation of the Eighth Amendment
prohibition against cruel and unusual punishment. Specifically, he alleges the
defendants retaliated against him when they subjected him to chain restraints
while in the infirmary and did not allow him to use the toilet for long periods of
time, causing him pain and sometimes causing him to soil himself. He also
alleges the defendants took and read his legal journal. Defendants have filed a
motion for summary judgment on the issue of qualified immunity. See Docket
No. 44. The court entered an order staying all discovery until that motion is
determined. See Docket No. 40. This order addresses a number of other
motions filed by Mr. Bell.
PENDING MOTIONS
A.

Motion for Copies (Doc. 41)
Mr. Bell filed an identical motion for copies previously. See Docket No.

16. The court addressed that motion by ordering defendants to respond with
information about any limitations on legal copies and the procedure to obtain
legal copies. See Docket No. 25. Defendants did so thereafter. See Docket No.
32. Defendants explained that there was no limit on the number of legal copies
a prisoner could obtain, and explained the procedure for obtaining those
copies. Id.
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Mr. Bell’s current motion is duplicitous and raises no new issues or
facts. Defendants responded to Mr. Bell’s current motion stating that the
procedure described in their earlier filing remains the same. See Docket No.
43. Accordingly, this motion by Mr. Bell is denied.
B.

Motion For Preliminary Injunction (Doc. 30)
Next, Bell moves for a preliminary injunction. (Doc. 30). In light of

defendants’ pending summary judgment motion and this court’s staying of
discovery until the issue of qualified immunity is resolved, any motion seeking
a ruling on the merits of Mr. Bell’s claims is premature. The court denies
Mr. Bell’s request for a preliminary injunction at this stage of the litigation.
Should one or more of Mr. Bell’s claims survive the pending motion for
summary judgment, he is free to renew his request for a preliminary injunction
at a later date.
C.

Motion For Waiver (Doc. 47)
Mr. Bell moves the court for an order holding that defendants waived

their opportunity to file a motion for summary judgment on the issue of
qualified immunity because they did not make their motion timely. See Docket
No. 47. The court, in granting defendants’ motion for a stay, ordered
defendants to file their summary judgment motion no later than March 2,
2015. See Docket No. 40. Defendants filed their motion for summary
judgment on February 27, 2015. See Docket No. 44. Accordingly, defendants’
motion was timely and the court denies Mr. Bell’s motion for waiver.

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D.

Motion for Recusal and to Compel (Docket No. 52)
Mr. Bell files a motion seeking an order that the Attorney General’s (“AG”)

office must be recused from representing defendants in this matter. See
Docket No. 52. Mr. Bell asserts that the AG’s office has a conflict of interest in
that defendant Jeremy Wendling submitted a false affidavit in this case, the
AG’s office should be investigating Mr. Wendling for this conduct, and charging
him with a crime. Defendants responded to this motion by stating that they
have read the motion and can assure the court that they perceive no conflict of
interest between them and their counsel of record. The court agrees. This
motion is denied.
Mr. Bell’s further requests for an investigation by the FBI and for
production of a video are also denied. Mr. Bell is free to contact the FBI
directly, if he wishes, to request an investigation. As to the discovery request,
this court has stayed all discovery and Mr. Bell’s request is contrary to the
court’s order. Further, even if discovery were being allowed at this juncture,
Mr. Bell’s request for discovery would be denied as it is not in compliance with
Fed. R. Civ. P. 37 requiring the service of a formal discovery request on
defendants first, a good-faith effort on the part of the parties to resolve any
differences they have regarding that discovery request, and a certification that
good faith efforts to resolve the discovery dispute have been pursued and have
not been fruitful. See FED. R. CIV. P. 37(a)(1).

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E.

Motion for Subpoenas (Docket No. 56)
Finally, Mr. Bell moves the court for the issuance of subpoenas. See

Docket No. 56. In this motion, he seeks various things: a subpoena for a
corrections officer, a subpoena for an inmate, and a subpoena for his medical
records. The court denies the first two. No trial date or evidentiary hearing is
currently scheduled and one will not be scheduled until the pending summary
judgment motion is resolved.
Mr. Bell’s medical records, however, are highly relevant to both the
merits of his claims and to defendants’ claims of qualified immunity. The court
will order defendants to make copies of Mr. Bell’s medical records for the
relevant time frames from both prison medical staff and from any outside
medical staff who attended Mr. Bell. Those copies shall be turned over to
Mr. Bell as soon as possible. Mr. Bell shall have 21 days from the date those
records are given to Mr. Bell to respond to defendants’ summary judgment
motion. Mr. Bell must, if necessary, execute appropriate releases to enable
defendants to obtain his medical records. Defendants shall notify the court
when they have complied with this order.
CONCLUSION
For the reasons more fully explained above, it is hereby
ORDERED that plaintiff Shane Bell’s Motion for Preliminary Injunction
[Docket No. 30], Motion for Copies [Docket No. 41], Motion for Waiver [Docket
No. 47], and Motion for Recusal [Docket No. 52] are all denied. It is further

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ORDERED that Mr. Bell’s Motion for Subpoenas [Docket No. 56] is
granted in part and denied in part. Mr. Bell’s request for subpoenas for
persons is denied. Mr. Bell’s request for a subpoena for his medical records is
granted. The court will not issue a subpoena, but does order defendants to
provide Mr. Bell with a complete copy of his medical records for the relevant
time frames from both prison medical staff as well as outside treating sources.
Mr. Bell shall execute any necessary releases in order to effectuate this order.
Defendants shall notify the court of the date Mr. Bell’s medical records are
provided to him. Mr. Bell shall have 21 days thereafter to respond to
defendants’ summary judgment motion.
DATED April 21, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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