Dale et al v. Kaemingk et al

Filing 139

OPINION AND ORDER DENYING MOTIONS FOR REVIEW OF DENIAL OF COUNSEL, DENYING OBJECTIONS TO ORDER, AND DENYING MOTION TO APPOINT COUNSEL; denying 118 Motion; denying 120 Motion; overruling and dismissing 124 Objection to Report and Recommendation.; denying 134 Motion to Appoint Counsel; denying 134 Motion to Extend Deadlines. Signed by U.S. District Judge Roberto A. Lange on 01/23/2017. (LH)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

MICHAEL EUGENE KOCH,
GUY ALLEN BLESI,
JAMES EDWARD HAYES,
JOSIA JEREMIAH FUERST,
JEFFERY JACOB-DANIEL
KLING HAGEN,
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; MICHAEL DOYLE,

4: 15-CV-04103-RAL

OPINION AND ORDER DENYING
MOTIONS FOR REVIEW OF
DENIAL OF COUNSEL, DENYING
OBJECTIONS TO ORDER,
AND DENYING MOTION
TO APPOINT COUNSEL

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

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CAPACITY; BARRY SCHROETER,
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
ATMDSP;
Defendants.
Plaintiff-inmates filed this lawsuit pursuant to 42 U.S.C. § 1983. Doc. 1.
Plaintiffs Jeffery Jacob-Daniel Klinghagen and Michael Eugene Koch now move
for review of denial of counsel.

Doc. 118; Doc. 120.
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Koch also objects to

United States Magistrate Judge Veronica L. Duffy's order denying his motion
for a temporary restraining order and preliminary injunction, Doc. 124, and
moves this Court to appoint him counsel. Doc. 134. For the following reasons,
plaintiffs' motions are denied.
I.

DISCUSSION
A.

Motions for Review of Denial of Counsel

Under the Federal Rules of Civil Procedure,
When a pretrial matter not dispositive of a party's claim or defense
is referred to a magistrate judge to hear and decide, the magistrate
judge must promptly conduct the required proceedings and, when
appropriate, issue a written order stating the decision. A party may
serve and file objections to the order within 14 days after being
served with a copy. A party may not assign as error a defect in the
order not timely objected to. The district judge in the case must
consider timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law.
Fed. R. Civ. P. 72(a).
1.

Klinghagen's Motion for Review of Denial of Counsel

Klinghagen requests that this Court review Magistrate Judge Duffy's
order denying him counsel. Doc. 118. He seeks to amend his complaint and
argues that he requires the assistance of counsel in order to do so. Id. This
Court agrees with the analysis and conclusion in Magistrate Judge Duffy's
order denying Klinghagen's motion to appoint counsel.

See Doc.

116.

Klighagen seeks to amend his complaint to raise a claim under the Americans
with Disabilities Act ("ADA").

Doc. 118.

Because the complaint contains

claims under the ADA, it appears that Klinghagen has the ability to bring a
claim under the ADA or access to someone who does. This Court finds that
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nothing in Magistrate Judge Duffy's order denying Klinghagen's motion is
clearly erroneous or contrary to law. Therefore, Klinghagen's motion for review
is denied.

2.

Koch's Motion for Review of Denial of Counsel

Koch requests that this Court review Magistrate Judge Duffy's order
denying him counsel. Doc. 120. He argues that he does not understand his
medical files and does not know how to extract the information he needs from
them.

Id.

This Court agrees with the analysis and conclusion in Magistrate

Judge Duffy's order denying Koch's motion to appoint counsel. See Doc. 117.
It appears that Koch can represent himself adequately. This Court finds that
nothing in Magistrate Judge Duffy's order denying Koch's motion is clearly
erroneous or contrary to law. Therefore, Koch's motion for review is denied.
Both Klinghagen and Koch ask that their motions, if denied, be
considered notices of appeal to the Court of Appeals for the Eighth Circuit.
Doc. 118; Doc. 120.

"In most circuits, an order denying a motion for

appointment of counsel in a § 1983 action is not immediately appealable,
because there is no final decision of the district court."

Ward v. Smith, 721

F.3d 940, 942 (8th Cir. 2013). However, the Eighth Circuit is different based
on Nelson v. Shuffman, 476 F.3d 635 (8th Cir. 2007), making an order denying
appointment of counsel appealable apparently under the collateral order appeal
doctrine.

See Ward 721 F.3d at 942. Therefore, Klinghagen and Koch may

appeal this order, and the Court construes their motions as notices of appeal.

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B.

Objection to Magistrate Judge Duffy's Decision on Dispositive
Motions

Koch also objects to Magistrate Judge Duffy's denial of his motion for
temporary restraining order and preliminary injunction. Doc. 124. He argues
that this is a dispositive matter and should not be decided by a Magistrate
Judge. Id. In the order denying Koch's motion for temporary restraining order
and preliminary injunction, Magistrate Judge Duffy explained that Koch's
motion was dismissed because the complaint had not then been served on
defendants, and the court did not have jurisdiction over the defendants. Doc.
121.

This Court agrees with this analysis and conclusion and finds that

nothing in Magistrate Judge Duffy's order denying Koch's motion is clearly
erroneous or contrary to law. Therefore, Koch's objections are overruled and
dismissed.

C.

Motion to Appoint Counsel

Koch again moves the Court to appoint him counsel.

Doc. 134.

He

argues that he wishes to add claims, including ADA claims, to the complaint
but does not know how. Id. He also wants to bring a separate lawsuit without
the other plaintiffs. Koch may file a new lawsuit on his own at any time. His
motion to appoint counsel, however, is denied for the reasons outlined above
and stated in Magistrate Judge Duffy's orders denying similar motions.
II.

ORDER
Accordingly, it is ORDERED
1. Klinghagen's motion for review of denial of counsel, Doc. 118, 1s
denied.

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2. Koch's motion for review of denial of counsel (or) notice of appeal, Doc.
120, is denied.
3. Klinghagen and Koch's motions are construed as notices of appeal,
and the Clerk of Court should treat them as such.
4. Koch's objection to Magistrate Judge Duffy's order denying his motion
for temporary restraining order and preliminary injunction, Doc. 124,
is overruled and dismissed.
5. Koch's motion to appoint counsel, Doc. 134, is denied.

Dated January J3"", 2017.
BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE

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