Thompson v. Dooley et al

Filing 37

ORDER denying 35 Motion to Appoint Counsel; denying 35 Motion to hire a private investigator; denying 9 Motion to Appoint Counsel; granting 11 Motion to Amend jury demand; denying 16 Motion to Strike/Quash irrelevant material from record; denying 17 Motion to Appoint Counsel; granting 18 Motion for Discovery (Defendants shall provide Thompson with the discovery he seeks as stated in this order by January 21, 2017; denying 19 Motion for subpoenas; denying 20 Motion to Amend Complaint; denying 21 Motion to Amend Complaint; denying 22 Motion to Amend Complaint; granting 23 Motion to amend request for monetary damages; granting 25 Motion to add Defendant Kaufenberg; denying 26 Motion for judicial notice of p ower of attorney; granting 30 Motion for Protective Order (other than stated in this opinion, discovery is stayed) Defendants shall file their motion for summary judgment by January 21, 2017. Signed by U.S. District Judge Karen E. Schreier on 12/21/16. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
TERRY L. THOMPSON,

4:16-CV-04071-KES

Plaintiff,
vs.
JOSH KLIMEK; DIANE ROMKEMA,
Case Manager; and LARSEN, D-H-O
Hearing Officer,

ORDER GRANTING MOTION
FOR PROTECTIVE ORDER AND
GRANTING IN PART AND DENYING
IN PART VARIOUS OTHER MOTIONS

Defendants.
INTRODUCTION
Plaintiff, Terry L. Thompson, is an inmate at the South Dakota State
Penitentiary in Sioux Falls. Plaintiff filed a pro se civil rights lawsuit under 42
U.S.C. ' 1983, and amended his complaint. Defendants now move the court to
enter a protective order staying discovery. Thompson also filed various
motions. For the following reasons, defendants’ motion for protective order is
granted, and Thompson’s various motions are granted in part and denied in
part.
DISCUSSION
I.

Motions to Appoint Counsel
Thompson filed three motions to appoint counsel. Docket 9; Docket 17;

Docket 35. “A pro se litigant has no statutory or constitutional right to have
counsel appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546

(8th Cir. 1998). In determining whether to appoint counsel to a pro se litigant,
the district court considers the complexity of the case, the ability of the litigant
to investigate the facts, the existence of conflicting testimony, and the litigant’s
ability to present his claim. Id. At this point, Thompson is able to present his
claim, and his claims are not complex. It is too early in the litigation to
determine the other factors. Therefore, Thompson’s motions to appoint
counsel are denied.
II.

Motion to Amend Jury Demand
Thompson moves to amend the request for damages from $20,000 to

$500,000 against each defendant. Docket 11. Defendants have not objected to
this motion and the court finds that it is in the interest of justice. See Fed. R.
Civ. P. 15(a)(2) (“The court should freely give leave [to amend] when justice so
requires”). Thompson’s motion to amend the jury demand is granted.
III.

Motion to Strike Quash Irrelevant Material from Record
Thompson moves to strike from the record evidence that he alleges is

not relevant to his claim and is hearsay. Docket 16. He does not identify the
evidence. Defendants have only answered Thompson’s complaint and
responded to his factual allegations. They have not introduced any evidence.
Therefore, Thompson’s motion is denied.
IV.

Motion for Discovery
Thompson moves the court to order defendants to provide him with

discovery. Docket 18. Thompson seeks his prison disciplinary, administrative,
and medical records. Id. Defendants have not responded to this request.
2

Because it appears that this information will be necessary for Thompson to
respond to defendants’ motion for summary judgment based on qualified
immunity, the court grants Thompson’s motion.
Thompson requests “all grievances on all defendants” and their
“disciplinary records.” Id. ¶ 3. To the extent Thompson seeks grievances he
filed against defendants and defendants’ disciplinary records that concern
Thompson, the motion is granted. To the extent that Thompson seeks
grievances other inmates filed against defendants or the disciplinary records
that do not concern Thompson, the motion is denied.
V.

Motion to Order Subpoena
Thompson requests that the court subpoena certain witnesses. Docket

19. A subpoena’s “function is to compel the attendance of witnesses and the
production of documents so that the court may have access to all of the
available information for the determination of controversies before it.” 9A
Charles Alan Wright et al., Federal Practice and Procedure § 2451 (3d ed.
1998). This motion is premature before the qualified immunity determination.
Therefore, it is denied.
VI.

Motions to Amend
Thompson filed three amended complaints. Dockets 20, 21, and 22. All

three amended complaints were filed after defendants filed their answer and
after Thompson had previously amended his complaint. Dockets 3 and 14.
Under Federal Rule of Civil Procedure 15(a)(2), Thompson could amend his
pleading “only with the opposing party's written consent or the court's leave.”
3

Thompson had neither. The court will grant leave to amend only “when justice
so requires.” Id. Thompson has not shown that justice requires three further
amendments of his complaint, so the motions to amend are denied.
VII.

Motion for Monetary Damages
Thompson filed a motion to request $500,000 in damages from

defendants. Docket 23. Because the court has already granted him leave to
amend the relief requested in his complaint, see Section II, this motion is
denied as moot.
VIII. Motion to Add Defendant
Thompson moves to add Lee Kaufenberg as a defendant. Docket 25.
Defendants object to this motion, arguing that Thompson cannot state a claim
against Kaufenberg. Docket 32. The court disagrees.
In the order directing service, the court found that Thompson had stated
an Eighth Amendment claim because he alleged “that he told defendants that
he was sick and they punished him.” Docket 7 at 8. The court found that
Thompson stated a retaliation claim because he alleged that “he was punished
for seeking aid from prison staff.” Id. Thompson alleges that Kaufenberg
investigated the incident that gave rise to his discipline and that Kaufenberg
filed the write up that sent Thompson to the Segregated Housing Unit. Docket
25 ¶¶ 1-2. Therefore, Thompson states Eighth Amendment and retaliation
claims against Kaufenberg, and his motion to add Kaufenberg as a defendant
is granted.

4

IX.

Motion for Judicial Notice of Power of Attorney
Thompson filed a motion asking for power of attorney to be granted to

his family members in case he gets sick or dies. Docket 26. It is not clear what
relief or action Thompson seeks with this motion. Thompson’s family members
do not need court authorization to act on his behalf. Therefore, Thompson’s
motion is denied.
X.

Supplemental Motion
Thompson moves to have a letter he sent to the parole board “amended

to” his case. Docket 29. In his complaint, Thompson did not raise any claims
concerning the parole board. Therefore, this document is irrelevant to his
case, and his motion is denied.
Throughout his motions, Thompson raises issues concerning his
current access to the law library and the alleged retaliation his is experiencing
because he filed this action. These issues are not before the court. Thompson
did not raise them in his first amended complaint. If Thompson wishes to raise
these claims, he must file a motion to amend his complaint and a proposed
amended complaint that includes all of the claims he brings in this action or
he should file a separate lawsuit.
XI.

Motion for Protective Order
Defendants move the court to enter a protective order, arguing they are

entitled to qualified immunity. Docket 30. The court grants this motion.
Defendants must provide Thompson with the discovery he seeks, as discussed

5

above, but other than those documents, discovery is stayed until defendants
file their motion for summary judgment based on qualified immunity.
XII.

Various Motions
Thompson filed a motion seeking various actions from the court. Docket

35. First, he requests a private heart specialist to examine him. Id. ¶ 2.
Because it is premature to grant this request, the request is denied.
Thompson also requests that an investigator be appointed. Id. ¶ 6. He
does not explain why he wants an investigator. At this time, his motion is
denied. Thompson also requests that a federal government official be present
at his parole hearing. Id. ¶ 24. Thompson does not explain on what grounds
he makes this requests, and he does not have a statutory right to this relief.
Therefore, Thompson’s motion is denied.
Thompson moves to file a malpractice lawsuit against a doctor who
examined him. Id. ¶ 8. Medical malpractice is not a cognizable claim under
§ 1983. See Roberts v. Dr. Blackwell, 205 F.3d 1347 (8th Cir. 2000) (upholding
dismissal of medical malpractice claim under § 1983). If Thompson wishes to
file a medical malpractice claim, he must files a separate lawsuit to do so.
Thompson’s motion to add a malpractice claim is denied.
Thompson also requests that he be given a copy of his medical records.
Because the court previously granted Thompson’s motion for discovery
seeking the same records, his motion is denied as moot.

6

It is ORDERED:
1.

Thompson’s motions to appoint counsel (Docket 9; Docket 17;
Docket 35) are denied.

2.

Thompson’s motion to amend jury demand (Docket 11) is granted.

3.

Thompson’s motion to strike quash irrelevant material from the
record (Docket 16) is denied.

4.

Thompson’s motion for discovery (Docket 18) is granted.
Defendants shall provide Thompson with the discovery he seeks
as stated in this order by January 21, 201 .

5.

Thompson’s motion to order subpoena amended complaint
summons (Docket 19) is denied.

6.

Thompson’s motions to amend the complaint (Docket 20; Docket
21; Docket 22) are denied.

7.

Thompson’s motion to amend his request for monetary damages
(Docket 23) is granted.

8.

Thompson’s motion to add defendant (Docket 25) is granted.
Kaufenberg is added as a defendant.

9.

Thompson’s motion for judicial notice of power of attorney (Docket
26) is denied.

10.

Defendants’ motion for protective order (Docket 30) is granted.
Other than stated in this opinion, discovery is stayed.

11.

Defendants shall file their motion for summary judgment by
January 21, 201 .
7

12.

Thompson’s various motions (Docket 35) are denied.

Dated December 2 , 2016.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

8