Dale et al v. Kaemingk et al
Filing
117
ORDER denying 112 Motion to Appoint Counsel; denying 113 Motion to Appoint Counsel; denying 114 Motion to Appoint Counsel as to Michael Eugene Koch. Signed by US Magistrate Judge Veronica L. Duffy on 11/3/2016. (CG)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES IRVING DALE,
MICHAEL EUGENE KOCH,
JAMES EDWARD HAYES,
JOSIA JEREMIAH FUERST,
JEFFERY JACOB-DANIEL
KLINGHAGEN,
UNKNOWN MIKE DURFEE STATE
PRISON INMATES,
Plaintiffs,
vs.
DENNIS KAEMINGK, SOUTH DAKOTA
SECRETARY OF CORRECTIONS; IN
HIS INDIVIDUAL AND OFFICIAL
CAPACITY; ROBERT DOOLEY,
WARDEN AT MDSP AND THE
DIRECTOR OF PRISON OPERATIONS
FOR THE SOUTH DAKOTA DOC; IN
HIS INDIVIDUAL AND OFFICIAL
CAPACITY; JOSHUA KLIMEK, UNIT
MANAGER AT MDSP; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
TAMMY DEJONG, UNIT
COORDINATOR AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
SUSAN JACOBS, ASSOCIATE WARDEN
AT MDSP; IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; REBECCA
SCHIEFFER, ASSOCIATE WARDEN
AND THE ADMINISTRATIVE REMEDY
COORDINATOR AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
JENNIFER STANWICK, DEPUTY
WARDEN AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
4:15-CV-04103-RAL
ORDER DENYING MOTIONS FOR
APPOINTMENT OF COUNSEL BY
PLAINTIFF KOCH BUT ORDERING
DEFENDANTS TO PROVIDE KOCH
WITH MEDICAL RECORDS
DOCKET NOS. 112, 113 & 114
MICHAEL DOYLE, CORRECTIONAL
OFFICER, WITH THE RANK MAJOR, AT
MDSP; IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; JEREMY
LARSON, CORRECTIONAL OFFICER,
WITH THE RANK SERGEANT, AND THE
DISCIPLINARY HEARING OFFICER AT
MDSP; IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; COREY TYLER,
CORRECTIONAL OFFICER, WITH THE
RANK SERGEANT, AT MDSP; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
MICHAEL MEYER, CORRECTIONAL
OFFICER AT MDSP; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
KELLY TJEERDSMA, CORRECTIONAL
OFFICER, WITH THE RANK
CORPORAL, AT MDSP; IN THEIR
INDIVIDUAL AND OFFICIAL CAPACITY;
LORI DROTZMAN, GENERAL
EDUCATION DIPLOMA TEACHER,
WHO ALSO IS IN CHARGE OF THE
LAW LIBRARY AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
MICHAEL JOE HANVEY, PHYSICIANS
ASSISTANT AND HEALTH CARE
PROVIDER AT MDSP; IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
ANDRA GATES, NURSING
SUPERVISOR AND HEALTH CARE
PROVIDER AT MDSP; IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
KELLY SWANSON, HEALTH SERVICES
SUPERVISOR AT MDSP; IN THEIR
INDIVIDUAL AND OFFICIAL CAPACITY;
STEPHANIE HAMILTON, NURSE AT
MDSP; IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; MARY
CARPENTER, EMPLOYEE OF THE
SOUTH DAKOTA DEPARTMENT OF
HEALTH AND ASSISTS WITH INMATE
HEALTH CARE DECISIONS FOR
INMATES INCARCERATED AT MDSP;
IN HER INDIVIDUAL AND OFFICIAL
CAPACITY; BARRY SCHROETER,
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SUPERVISOR FOR CBM
CORRECTIONAL FOOD SERVICES AT
MDSP; IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; JENNIFER
BENBOON, DIETITIAN EMPLOYED BY
CBM CORRECTIONAL FOOD
SERVICES; IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; CBM
CORRECTIONAL FOOD SERVICES,
PRIVATE FOR PROFIT COMPANY
CONTRACTED BY THE SOUTH
DAKOTA DOC TO PROVIDE MEALS TO
INMATES INCARCERATED AT MDSP;
DELMAR SONNY WALTERS,
ATTORNEY AT LAW CONTRACTED BY
THE SOUTH DAKOTA DOC TO
PROVIDE LEGAL SERVICES TO
INMATES INCARCERATED AT MDSP;
IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; UNKNOWN DEPARTMENT
OF CORRECTIONS EMPLOYEES,
CORRECTIONAL OFFICERS
EMPLOYED BY THE SOUTH DAKOTA
DOC WHO WORK AT MDSP;
UNKNOWN DEPARTMENT OF
CORRECTIONS HEALTH SERVICES
STAFF, HEALTH SERVICES
DEPARTMENT STAFF EMPLOYED BY
THE SOUTH DAKOTA DOC TO
PROVIDE HEALTH CARE FOR
INMATES INCARCERATED AT MDSP;
AND UNKNOWN CBM CORRECTIONAL
FOOD SERVICES EMPLOYEES,
EMPLOYEES OF CBM CORRECTIONAL
FOOD SERVICES AT MDSP;
Defendants.
This matter is before the court on a pro se complaint pursuant to 42
U.S.C. § 1983 and the Americans With Disabilities Act (ADA) filed by multiple
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prison inmates at the Mike Durfee State Prison (MDSP), among them Michael
Eugene Koch. Mr. Koch has filed three motions for appointment of counsel.
See Docket Nos. 112, 113, and 114. The court denies all three motions as
discussed below.
"Indigent civil litigants do not have a constitutional or statutory right to
appointed counsel." Edgington v. Missouri Dep't of Corrections, 52 F.3d 777,
780 (8th Cir. 1995). 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 presence or absence of conflicting testimony,
and the plaintiff's ability to investigate the facts and present his claim." Davis
v. Scott, 94 F.3d 444, 447 (8th Cir. 1996).
This case is not factually complex. Mr. Koch alleges defendants are
deliberately indifferent to his serious medical needs, namely treatment of his
liver and gall bladder conditions. In support of his motion, Mr. Koch alleges he
has only an eighth-grade education, does not know the law, receives no
assistance from the law librarian or contract attorney at MDSP, and is ill. Mr.
Koch alleges an outside doctor has told him his gall bladder is basically dead
and needs to be removed, but surgery cannot be accomplished until his liver is
stabilized. Mr. Koch alleges his liver is being affected by Hepatitis C and that
he requires treatment with the drug Harvoni® in order to stabilize his liver. He
alleges defendants are not giving him the indicated liver treatment, with the
4
result that his gall bladder cannot be removed. He alleges these conditions
cause him pain on a daily basis.
This case is not legally complex. The law regarding plaintiff's Eighth
Amendment claim is well-settled, and requires that plaintiff to "prove that he
suffered from one or more objectively serious medical needs, and that prison
officials actually knew of but deliberately disregarded those needs." Roberson
v. Bradshaw, 198 F.3d 645, 647 (8th Cir. 1999). A serious medical need is
"one that has been diagnosed by a physician as requiring treatment, or one
that is so obvious that even a layperson would easily recognize the necessity for
a doctor's attention." Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995)
(quotation marks and citation omitted). The law further provides that
"[d]eliberate indifference may be demonstrated by prison guards who
intentionally interfere with prescribed treatment, or by prison doctors who fail
to respond to prisoner's serious medical needs. Mere negligence or medical
malpractice, however, are insufficient to rise to a constitutional violation."
Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (citing Estelle v.
Gamble, 429 U.S. 97, 104-06 (1976)).
Like all individuals untrained in the law, plaintiff may benefit from the
assistance of counsel, but the court does not find it necessary to appoint
counsel in this matter. The court would not benefit from the assistance of
counsel at this point in the proceedings. Plaintiff, although incarcerated, is
able to investigate the facts of his claim. It is not clear at the present time
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whether there will be conflicting testimony in this case. The legal issues
involved do not appear to be legally complex at this point in the proceedings.
However, it does appear Mr. Koch cannot adequately represent himself
without access to his own medical records. Accordingly, considering all the
relevant factors, as discussed above, and upon the record to date, the court will
order defendants to provide Mr. Koch with his own medical records for the last
three years, including those records from outside doctors. Based on the
foregoing, it is hereby
ORDERED that plaintiff Michael Koch’s motions for appointment of
counsel [Docket Nos. 112, 113 & 114] are denied without prejudice. It is
further
ORDERED that if defendants are served with Mr. Koch’s complaint,
defendants shall immediately provide to Mr. Koch copies of all of his medical
records for the last three years, both records generated by prison medical staff,
South Dakota Department of Health employees, and outside medical doctors.
If necessary, Mr. Koch must execute health care waivers allowing defendants to
request such records and provide such copies to Mr. Koch.
DATED this 3rd day of November, 2016.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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