Sisney v. Kaemingk et al

Filing 17

ORDER granting 8 Motion to Amend Complaint; denying 9 Motion to Take Judicial Notice; denying 16 Motion for Service. Signed by US Magistrate Judge Veronica L. Duffy on 7/15/2015. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CHARLES E. SISNEY,

4:15-CV-04069-LLP

Plaintiff,
vs.
DENNY KAEMINGK, IN HIS OFFICIAL
CAPACITY AS THE SOUTH DAKOTA
SECRETARY OF CORRECTIONS;
DARIN YOUNG, IN HIS OFFICIAL
CAPACITY AS THE WARDEN OF THE
SOUTH DAKOTA STATE
PENITENTIARY; SHARON REIMANN,
IN HER OFFICIAL CAPACITY AS AN
SDSP DESIGNATED MAILROOM
OFFICER; AND CRAIG MOUSEL, IN
HIS OFFICIAL CAPACITY AS AN SDSP
DESIGNATED PROPERTY OFFICER;

ORDER ON PLAINTIFF’S MOTIONS
DOCKET NOS. 8, 9 & 16

Defendants.

This matter is before the court on plaintiff Charles E. Sisney’s complaint
pursuant to 42 U.S.C. § 1983. Mr. Sisney has paid the filing fee. This matter
has been referred to this magistrate judge for handling pretrial matters
pursuant to 28 U.S.C. § 636(b)(1) and the Honorable Karen E. Schreier’s
standing order of October 16, 2014.
This court has screened Mr. Sisney’s complaint and determined that the
claims he articulates therein survive screening. Now Mr. Sisney moves to
amend his complaint (entitled a motion to file a supplemental complaint—
Docket No. 8); moves the court to take judicial notice of the fact that certain
Department of Corrections regulations at issue in this case have undergone

revision (Docket No. 9); and moves the court to require the United States
Marshals Service to serve his summonses and complaints on defendants. It is
hereby
ORDERED that Mr. Sisney’s motion to amend his complaint [Docket No.
8] is granted as service of the summons and original complaint has not yet
been accomplished. See FED. R. CIV. P. 15(a). When Mr. Sisney serves
defendants, he must serve both the original complaint (which is incorporated
by reference in his supplemental complaint) as well as the supplemental
complaint and the summonses issued by the clerk’s office. It is further
ORDERED that Mr. Sisney’s motion to take judicial notice [Docket No. 9]
is denied. This motion poses a question of law which is reserved for
determination at a later date—specifically until after defendants have been
served, made their appearance, and can voice their position on Mr. Sisney’s
evaluation of the state of the law. It is further
ORDERED that Mr. Sisney’s motion for service is denied. Pro se litigants
may only be entitled to have the Marshals serve their pleadings if they have
applied for and been granted in forma pauperis status. See 28 U.S.C.
§ 1915(d). Mr. Sisney has not applied for in forma pauperis status. The clerk’s
office is requested to send the appropriate application for such status to
Mr. Sisney along with a copy of this order. Upon receipt and approval of such
a qualifying application, the court may direct that the Marshals serve
Mr. Sisney’s summonses, complaint and supplemental complaint. The court

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will not require the Marshals Service to serve Mr. Sisney’s pleadings if he does
not qualify for in forma pauperis status.
DATED this 15th day of July, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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