Cody v. McDonald et al

Filing 30

ORDER denying 29 Motion to Stay. Signed by US Magistrate Judge Veronica L. Duffy on 7/1/2015. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
WILLIAM CODY,

4:14-CV-04155-RAL
Plaintiff,

vs.
ASHLEY MCDONALD, INDIVIDUAL
AND OFFICIAL CAPACITY; TIM
MEIROSE, INDIVIDUAL AND
OFFICIAL CAPACITY; DARIN YOUNG,
INDIVIDUAL AND OFFICIAL
CAPACITY; HEATHER BOWERS,
INDIVIDUAL AND OFFICIAL
CAPACITY; JESSICA STEVENS,
INDIVIDUAL AND OFFICIAL
CAPACITY; KAYLA TINKER,
INDIVIDUAL AND OFFICIAL
CAPACITY; DR. MARY CARPENTER,
MD, INDIVIDUAL AND OFFICIAL
CAPACITY; LINDA MILLER-HUNOFF,
INDIVIDUAL AND OFFICIAL
CAPACITY; STEVE BAKER,
INDIVIDUAL AND OFFICIAL
CAPACITY; AND JENNIFER WAGNER,
INDIVIDUAL AND OFFICIAL
CAPACITY;

ORDER DENYING DEFENDANTS’
MOTION TO STAY
[DOCKET NO. 29]

Defendants.

This matter is before the court on plaintiff William Cody’s verified pro se
complaint pursuant to 42 U.S.C. § 1983. Mr. Cody is an inmate at the South
Dakota State Penitentiary (“SDSP”). On December 2, 2014, this court screened
Mr. Cody’s complaint and ordered that a summons and copy of the complaint
be served on each defendant. See Docket No. 8. Thereafter, defendants, who
are officers or employees of the prison system of the state of South Dakota,

were served. On January 21, 2015, defendants filed a motion to dismiss
pursuant to FED. R. CIV. P. 12(b)(6). See Docket No. 19. Mr. Cody opposed
defendants’ motion. See Docket No. 23. This same day this court entered a
report and recommendation that defendants’ motion be denied.
Mr. Cody recently filed his own motion for summary judgment. See
Docket No. 26. Defendants responded to this motion with a motion seeking a
stay, asking that they not be required to respond to Mr. Cody’s summary
judgment motion until this court resolves defendants’ motion to dismiss. See
Docket No. 29.
The recommended denial of defendants’ motion to dismiss by this court
was premised largely on the conclusion that defendants were in essence
seeking summary judgment by inviting the court to make reference to materials
outside the complaint. Mr. Cody’s motion is actually a motion for summary
judgment. The court believes that the most efficient use of judicial resources
and the parties’ resources is for the court to adjudicate Mr. Cody’s motion.
Defendants may respond, if they believe it is appropriate, with their own crossmotion for summary judgment or simply respond to Mr. Cody’s motion.
Accordingly, it is hereby
ORDERED that defendants’ motion for a stay [Docket No. 29] is denied.
DATED July 1, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge
2