Dale et al v. Kaemingk et al

Filing 206

ORDER denying 204 Motion to Extend Deadlines ; granting without prejudice to refiling 198 Motion to Dismiss for Failure to State a Claim. Signed by U.S. District Judge Roberto A. Lange on 8/10/18. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

JEFFERY JACOB-DANIEL KLINGHAGEN,

4:15-CV-04103-RAL

Plaintiffs,
ORDER GRANTING

MOTION TO DISMISS WITHOUT
PREJUDICE TO REFILING

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

MICHAEL

OFFICIAL CAPACITY;

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

PHYSICIANS

ASSISTANT

JOE
AND

HANVEY,
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
INDIVIDUAL

AND

AT

MDSP;

IN

HER

OFFICIAL 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

EMPLOYEES,

FOOD

EMPLOYEES

SERVICES

OF

CBM

CORRECTIONAL FOOD SERVICES AT MDSP;
Defendants.

Plaintiff Jeffery Jacob-Daniel Klinghagen (Klinghagen) is the lone remaining Plaintiff in this

case, which began with thirteen Plaintiffs. Doc. I. Klinghagen's Verified Amended Complaint
contains claims under 42 U.S.C. § 1983 and the Americans with Disabilities Act that conditions of
confinement at the Mike Durfee State Prison (MDSP) violate his rights. Doc. ISO. Particularly,

Klinghagen alleges that the Defendants at MDSP have been deliberately indifferent to his serious
medical needs, namely proper treatment of his diabetes.

Klinghagen has made repeated requests for appointment of counsel, Docs. 91, 110, 188, which
Magistrate Judge Veronica L. Duffy has denied through several orders. Docs. 116, 189. Klinghagen
filed an appeal ofthose rulings addressed to the undersigned judge, Doc. 194, and this Court affirmed.
Doc. 197.

This Court explained that the case is not factually or legally complex, and that Klinghagen has
stated a claim that the MDSP Defendants have been deliberately indifferent to his serious medical

needs as a diabetic, that he entered prison with an insulin pump prescribed by a private physician, that

MDSP officials removed the pump,and that he now suffers increased seizures. Both Magistrate Judge
Duffy and this Court have explained the law to Klinghagen as follows:

The law regarding plaintiffs 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." Roherson 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 citations 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." Dulanv v. Carnahan. 132 F.3d 1234, 1239(8th Cir. 1997)fciting Estelle v.
Gamble. 429 U.S. 97, 104-06 (1976)).

Doc. 116 at 5; Doc. 197 at 4; Doc. 203 at 4. Magistrate Judge Duffy previously has ordered that

Defendants provide Klinghagen copies of his medical records for a several-year period. Doc. 116 at
6-7.

On February 22, 2018, the Defendants filed a Motion to Dismiss, Doc. 198, arguing that
Klinghagen's Amended Complaint fails to state a claim upon which relief can be granted. A text order
advised Klinghagen ofhis deadline of March 19, 2018,to respond to the motion to dismiss. Doc. 199.
On March 22, 2018, the Clerk of Court filed a one-page letter postmarked March 21 from

Klinghagen where Klinghagen reiterated his desire for legal counsel and expressed an inability to

proceed without help. Doc. 200. Magistrate Judge Duffy wrote back to Klinghagen on March 23,
2018, declining to give Klinghagen legal advice, but recounting that the Court had provided an outline

of the applicable law and some ofthe Federal Rules of Civil Procedure, and letting Klinghagen know
how he could access this Court's Civil Local Rules. Doc. 201. Because some of Klinhagen's letter

could have been read as indicating a loss of a desire to proceed. Judge Duffy wrote: "If you no longer
wish to pursue your case, you may make a motion to voluntarily dismiss it." Doc. 201. Because
Klinghagen had filed nothing further and had not resisted Defendants' Motion to Dismiss, this Court

on, July 10, 2018, entered an Order Requiring Response to Motion to Dismiss. Doc. 203. That Order

provided "that Klinghagen is given until July 24, 2018,to respond to the Motion to Dismiss, and if he
does not so respond, the Court will deem the motion unopposed and grant dismissal without prejudice
to refiling a separate case." Doc. 203.

On July 23,2018,Klinghagen filed a Motion for Extension ofTime,Doc.204, asking for thirty

additional days to file an "Amended and Supplemental Complaint." The Defendants resisted

Klinghagen's motion, Doc. 205, noting that this Court's Scheduling Order set a December 18, 2017
deadline for any amendment to pleadings. See Doc. 193. Klinghagen's Motion for Extension ofTime,
Doc. 204, is not a response to the Motion to Dismiss and indeed contains no argument at all against
the Motion to Dismiss. This Court's prior order was clear "that Klinghagen is given until July 24,

2018, to respond to the Motion to Dismiss, and if he does not so respond, the Court will deem the
motion unopposed and grant dismissal without prejudice to refiling a separate ease." Doc. 203.
Klinghagen still has not responded to the motion to dismiss. Therefore, it is hereby
ORDERED that the Motion to Dismiss, Doc. 198, is granted and that the case is being
dismissed without prejudice. It is further
ORDERED that Defendant's Motion for Extension of Time, Doc. 204, is denied as being past
the time to file such motions and as moot in light ofthe dismissal.

DATED this 10th day of August, 2018.

BY THE COURT;

ROBERTO A. LANGi
UNITED STATES DISTRICT JUDGE