Dale et al v. Kaemingk et al
Filing
93
OPINION AND ORDER adopting 73 Report and Recommendation; adopting in part 84 Report and Recommendation; sustaining 86 Objection to Report and Recommendation; denying as moot 88 Motion for Reconsideration. Dismissing Plaintiffs Crank, Darity, Holzer, Blesi and Stanish II. Signed by U.S. District Judge Roberto A. Lange on 4/8/16. (DJP) (Main Document 93 replaced on 4/8/2016) (DJP).
FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
APR 08 2016
~~
SOUTHERN DIVISION
JAMES IRVING DALE,
BRIAN MICHAEL HOLZER,
MICHAEL EUGENE KOCH,
GUY ALLEN BLESI,
KEVIN CHRISTOPHER CRANK,
JAMES EDWARD HAYES,
EDWARD EUGENE DARITY,
JOSIA JEREMIAH FUERST,
JEFFERY JACOB-DANIEL
KLING HAGEN,
DENNIS LOUIS STANISH II,
UKNOWN 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
4: 15-CV-04103-RAL
OPINION AND ORDER ADOPTING
REPORT AND RECOMMENDATION,
SUSTAINING OBJECTIONS, AND
DENYING MOTION TO RECONSIDER
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,
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
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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,
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;
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AND UNKNOWN CBM
CORRECTIONAL FOOD SERVICES
EMPLOYEES, EMPLOYEES OF CBM
CORRECTIONAL FOOD SERVICES
AT MDSP,
Defendants.
Plaintiffs filed this lawsuit pursuant to 42 U.S.C. § 1983 on June 6,
2015. Doc. 1. After a ruling that all Plaintiffs had to pay separate filing fees,
plaintiffs were ordered to give notice that they wished to proceed with the
lawsuit, and the plaintiffs who responded were granted leave to proceed in
forma pauperis upon payment of a partial filing fee. Doc. 21. Magistrate Judge
Veronica L. Duffy issued two reports and recommendations dismissing certain
plaintiffs for either failing to give notice or failing to pay their initial partial
filing fee. Doc. 73; Doc. 84. Plaintiff James Irving Dale objects to the
recommendation that he be dismissed as a plaintiff. Doc. 86. Dale also filed a
motion to reconsider. Doc. 88. For the reasons stated below, the reports and
recommendations are adopted in part, Dale's objection is sustained, and his
motion to reconsider is denied.
I.
PROCEDURAL BACKGROUND
Plaintiffs are prisoners incarcerated at Mike Durfee State Prison (MDSP).
On June 1, 2015, plaintiffs filed a complaint alleging that their rights are being
violated by prison conditions at MDSP. Doc. 1. Dale moved to proceed in forma
pauperis. Doc. 4. On June 3, 2015, Magistrate Judge Duffy sent notice to all of
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the plaintiffs, warning them that they must individually pay a filing fee and
that they would be legally responsible as plaintiffs in the case. Doc. 21. She
also ordered plaintiffs give notice to the Court if they wished to proceed with
the lawsuit by July 2, 2015. Id.
Because plaintiffs Kevin Christopher Crank and Edward Eugene Darity
did not respond to Magistrate Judge Duffy's June 3 order, she recommends
they be dismissed from the case. Doc. 73. Neither Crank nor Darity objected to
this recommendation.
Dale appealed Magistrate Judge Duffy's June 3 order, moved to appoint
counsel, and sought class action certification. Doc. 22; Doc. 23; Doc. 24. Most
of the other plaintiffs also moved to proceed in forma pauperis. Doc. 29; Doc.
31; Doc. 33; Doc. 35; Doc. 37; Doc. 39; Doc. 41; Doc. 42; Doc. 44; Doc. 46.
Magistrate Judge Duffy denied class certification and the motion to appoint
counsel. Doc. 48. This Court denied Dale's appeal of Magistrate Judge Duffy's
original order and adopted her report and recommendation denying class
certification and the motion to appoint counsel. Doc. 62; Doc. 63.
Magistrate Judge Duffy granted various plaintiffs' motions to proceed in
forma pauperis and set initial partial filing fees for each such plaintiff. Doc. 64;
Doc. 65; Doc. 66; Doc. 67; Doc. 68; Doc. 69; Doc. 70; Doc. 71; Doc. 72; Doc.
74; Doc. 75. A number of plaintiffs paid their initial partial filing fees. On
February 22, 2016, Magistrate Judge Duffy recommended dismissal of
plaintiffs Dale, Brian Holzer, Guy Blesi, and Dennis Stanish II because they did
not pay their initial partial filing fees. Doc. 84. Dale objects to this
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recommendation, arguing that he cannot afford to pay the initial partial filing
fee. Doc. 86. Dale also moves the Court to reconsider its decision concerning
his filing fee, raising the same argument put forth in his objection to the report
and recommendation. Doc. 88.
LEGAL STANDARD
II.
Review of a magistrate judge's report and recommendation is governed by
28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. Under 28
U.S.C. § 636(b)(l), the court reviews de novo any objections that are timely
made and specific. See Fed. R. Civ. P. 72(b) ("The district judge must determine
de novo any part of the magistrate judge's disposition that has been properly
objected to").
III.
A.
DISCUSSION
Kevin Christopher Crank and Edward Eugene Darity Are Dismissed
Magistrate Judge Duffy ordered all plaintiffs who wished to proceed with
the lawsuit to give notice to the Court by July 2, 2015. Doc. 21. Crank and
Darity failed to do so. They did not object to Magistrate Judge Duffy's
recommendation that they be dismissed from the case. Therefore, the Court
adopts Magistrate Judge Duffy's recommendation; Crank and Darity are
dismissed as plaintiffs.
B.
Brian Holzer, Guy Blesi, and Dennis Stanish II Are Dismissed
Magistrate Judge Duffy recommends that Holzer, Blesi, and Stanish II be
dismissed because they did not pay their initial partial filing fees. Doc. 84.
None of these plaintiffs objected to this recommendation. Therefore, the Court
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adopts Magistrate Judge Duffy's recommendation; Holzer, Blesi, and Stanish II
are dismissed as plaintiffs.
C.
Dale's Objection Is Sustained
Magistrate Judge Duffy recommends that Dale be dismissed as a plaintiff
because he did not pay his initial partial filing fee. Doc. 84. Dale objects,
arguing that he cannot pay because he was recently fined by prison officials,
and he does not have money to pay the initial partial filing fee. Doc. 86. Dale
filed a Declaration stating that he has a negative balance in his inmate trust
account and cannot pay the $8.00 filing fee now or in the foreseeable future.
Doc. 87. Dale's objection is sustained.
Under 28 U.S.C. § 1915(b)(l) a prisoner who brings a civil action is
required to pay an initial partial filing fee. But, the statute also states, "In no
event shall a prisoner be prohibited from bringing a civil action ... for the
reason that the prisoner has no assets and no means by which to pay the
initial partial filing fee."§ 1915(b)(4). Therefore, the initial partial filing fee is
waived for Dale, but he still must pay the entire filing fee in installments. See
§ 1915(b)(l)-(2).
Dale's motion to reconsider seeks the same relief as his objection to
Magistrate Judge Duffy's report and recommendation. Because the Court
grants Dale's relief by sustaining his objection, his motion to reconsider is
denied as moot.
IV.
ORDER
Accordingly, it is ORDERED
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1. Magistrate Judge Duffy's report and recommendation (Doc. 73) is
adopted. The claims of plaintiffs Crank and Darity are dismissed, and
they should be removed as party plaintiffs on all further filings.
2. Magistrate Judge Duffy's report and recommendation (Doc. 84) is
adopted in part. The claims of plaintiffs Holzer, Blesi, and Stanish II
are dismissed, and they should be removed as party plaintiffs on all
further filings.
3. Dale's objection (Doc. 86) is sustained. His initial partial filing fee is
waived, although he ultimately remains responsible to pay the entire
filing fee.
4. Dale's motion to reconsider (Doc. 88) is denied as moot.
Dated April.&!!', 2016.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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