Johnson v. Daugaard et al
Filing
42
MEMORANDUM OPINION AND ORDER denying 28 Motion to Dismiss for Failure to State a Claim; denying 30 Motion for Discovery; denying 32 Motion ; denying 36 Motion to Quash; denying 41 Motion to Appoint Counsel ; denying 24 Motion to Appoint Counsel ; denying 24 Motion to Amend/Correct; denying 24 Motion for Reconsideration. Signed by U.S. District Judge Lawrence L. Piersol on 3/29/2019. (SLT) Modified on 3/29/2019 delivered to Leslie Johnson via USPS(SLT).
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
4:17-CV-04043-LLP
LESLIE JOHNSON,
Plaintiff,
MEMORANDUM OPINION AND ORDER
vs.
DENNY KAEMINGK,SECRETARY OF
CORRECTIONS,IN HIS PUBLIC
CAPACITY; ROBERT DOOLEY,CHIEF
WARDEN,IN HIS PUBLIC CAPACITY;
NANCY CHRISTENSEN,UNIT MANAGER,
IN HER PUBLIC CAPACITY; ALEJANDRO
DENYING MOTION TO DISMISS,
MOTION TO APPOINT COUNSEL,
MOTION FOR RECONSIDERATION,
MOTION FOR DISCOVERY,MOTION TO
ADD CLAIMS AND CORRECT
PLEADING,MOTION TO QUASH,AND
GRANTING LEAVE TO AMEND
REYES,ASSOCIATE WARDEN,IN HIS
PUBLIC CAPACITY; AND ROB CARUAHA,
ADA COORDINATOR,IN HIS PUBLIC
CAPACITY;
Defendants.
Pending before the Court is plaintiff, Leslie Johnson's ("Johnson"), Motion to Appoint
Counsel, Docs. 24 «& 41; Motion to Correct Title and Pleading, Doc. 24; Motion for
Reconsideration, Doe. 24; Motion for Sharing Discovery Documents, Doc. 30; Motion to Add
Additional Claims for Injury and Adjust Damages, Doc. 32; Motion to Quash Defendant's
Response in Opposition to Plaintiffs Motion to Add Additional Claims for Injury, Doe. 36; and a
Motion to Dismiss, Doc. 28, that was filed hy defendants Denny Kaemingk, Secretary of
Corrections, in his official capacity; Robert Dooley, Chief Warden,in his official capacity; Nancy
Christensen, Unit Manager, in her official capacity; Alejandro Reyes, Associate Warden, in his
official capacity; Rob Carauha, in his official capacity("Defendants").
BACKGROUND
I.
Facts and Procedural Background in Federal Court
Johnson is an inmate at Mike Durfee States Prison("MDSP")in Springfield, South Dakota.
On March 30, 2017, Johnson filed a pro se motion for temporary restraining order and motion for
preliminary injunction and motion for court to order preservation of camera footage. Docs. 1 &
13.
On June 16, 2017, Johnson filed a complaint alleging several violations of the Americans
with Disabilities Act("ADA"), Doc. 9, and subsequently moved the Court for Leave to Proceed
in forma pauperis. Doc. 16. Johnson's complaint generally concerns the prison's alleged failure
to accommodate his disabilities, the prison's alleged non-compliance with the ADA Standards of
Accessible Design ("ADA Accessibility Standards"), and the alleged retaliation that Johnson
suffered as a result offiling ADA complaints. Johnson alleges he "has several medical conditions
that restrict his mobility" and that "[h]e is confined to a wheel-chair." Doc. 9 at 2,^ 2. Johnson
also alleges that he suffers fiom COED and as a result, he has a difficult time breathing in a humid
environment. Doc.9 at 3,^ 2; 5,^ 7.
The Court issued an order granting Johnson's motion for leave to proceed in forma
pauperis. Doc. 16. On March 22, 2018, the Court issued an ordering denying Johnson's motion
for temporary restraining order,preliminary injunction, and motion to order preservation ofcamera
footage. Doc. 20. In its March 22nd order, the Court held that Johnson's Title II and Title V
claims for injunctive relief under the ADA against Denny Kaemingk, Robert Dooley, Nancy
Christensen, Alejandro Reyes, and Rob Caruaha in their official capacities ("Defendants")
survived the pre-service screening that the Court is obligated to undertake under 28 U.S.C. §§
1915(e)(2)(B)and 1915A and the Court directed service ofthe summons and complaint and a copy
of the Court's order upon Defendants. Doc. 20. Each of the Defendants have been served as
directed in accordance with the Court's order. Docs. 23 & 27.
With regard to Johnson's surviving claims, Johnson alleges in his complaint that on several
occasions he was forced to wait outside on the stairlifl to access church services, at times during
inclement weather, while non-handicapped inmates were counted before an officer assisted him
with the stairlifl.^ Doc. 9 at 3, ^ 1; 4,]| 4, Exs. A, G. In his claim for relief, Johnson requests
damages of$5,000,000.00 and that he be provided "reasonable access" to religious services. Doc.
9at3,1fl;9,1fl.
Johnson alleges that in retaliation for filing ADA complaints, he his prohibited fi om using
"
the "handicapped-only" bathroom and may only use the handicap shower and the handicap toilet
^ The exhibits attached to the complaint show that Johnson complained of having experienced this treatment on at
least three separate occasions—June 7, 2014; June 21, 2014; and October 14, 2016. Doc. 9, Ex. B.
in the general population restroom. Doc. 9 at 4,^ 3, Ex. E. It appears from the exhibits attached
to the complaint, that the handicapped stall in the general population bathroom is not designated
as"handicapped-only" and that the general population may use the handicapped stall in the general
population bathroom when no other stalls are available. Doc. 9 at 4, ^ 3, Ex. E. Johnson also
alleges that these actions violate Title II of the ADA. Doc. 9 at 4,f 3. Johnson claims that the
urinal in the general population bathroom is not in compliance with the ADA Accessibility
Standards. Doc. 9 at 4,^ 5, Ex. I. In his request for relief, Johnson requests $2,000,000.00 in
damages for these claims, that Defendants cease all retaliation against him, and that the urinal
comply with the ADA Accessibility Standards. Doc.9 at 4,^1f3, 5; 9,^ 3.
Johnson alleges that the placement of a rubber mat in front of the ice/hot water machine
violates Section 303 ofthe ADA Accessibility Standards and that Defendants should instead apply
"a tape type anti-slipper application to avoid the slippery spots, and still allow easy access to the
machine." Doc. 9 at 5, ^ 6, Ex. J. In his claim for relief, Johnson requests damages of
$1,000,000.00 and requests that Defendants provide him reasonable access to the ice/hot water
machine. Doc.9 at 5,^6, Ex. J; 9, 1.
Johnson alleges that the exhaust fan in the handicap bathroom vents between two walls and
does nothing to eliminate the excessive humidity in the shower and that he has a difficult time
breathing in the humid environment with his COPD. Doc.9 at 5,f 7, Ex. K. Johnson alleges that
in the handicap shower, two circulation fans were removed, along with shelves and coat hooks in
retaliation for Johnson filing ADA complaints. Doc. 9 at 3, 2, Ex. C; at 5,^ 7. In his claim for
relief, Johnson seeks damages of$2,000,000.00 and requests that Defendants remedy the humidity
in the handicap bathroom. Doc. 9 at 3,^ 2; at 5, Tf 7.
Johnson alleges that in retaliation for filing ADA complaints, the ADA Coordinator said
"very loudly and authoritatively, what's your problem" and told Johnson to stop filing grievances.
Doc. 9 at 6, 8, Ex. O. Johnson also alleges that he is subject to harassment by staff and that the
staffis encouraging other inmates to retaliate against him for exercising his rights under the ADA.
Doc. 9 at 2,1 3; 7,^ 11. Johnson alleges that one inmate told a Unit Manager that he should
handcuff Johnson to the new handicap area provided at one ofthe picnic tables. Doc.9 at 7, 11.
Johnson alleges that instead of discouraging such comments, the Unit Manager laughed. Doc. 9
at 7,]| 11. In his claim for relief, Johnson claims damages of $2,000,000.00 for these violations
and requests that the alleged retaliatory conduct cease. Doc.9 at 6,^ 8; 7, T[ 11.
Johnson alleges that he was moved to the "Barracks, in an attempt to silence him." Doc.9
at 2, HI.
Johnson alleges that during the remodeling ofthe general population bathroom,Defendants
placed two 55-gallon trash cans and a shower chair in a hallway in front ofthe message board and
that this violated the ADA Accessibility Standards which Johnson alleges requires a hallway width
of 60 inches and also violated the "A.D.A. title 11 technical assistance manual § II 3.10000
Illustrations" Doc.9 at 6,H 9,Ex. P. Johnson further alleges that the phone cords are less than the
length required by the ADA. Doc.9 at 6,H 9. In his claim for relief, Johnson seeks $2,000,000.00
in damages and requests that Defendants comply with the ADA. Doc.9 at 6,H 9; at 9, H 3.
Finally, Johnson alleges that Defendants refuse to provide him a desk or writing table that
meets the requirements of the ADA and in his claim for relief, seeks $1,000,000.00 and requests
that Defendants comply with the ADA. Doc. 9 at 7,^10; at 9, H 3.
On April 11, 2018, Johnson filed a motion to appoint counsel and to correct title and
pleading and a motion to reconsider the Court's ordering denying Johnson's motion for temporary
restraining order and preliminary injunction. Doc. 24.
On June 6, 2018, Defendants filed a motion to dismiss Johnson's surviving claims for
failure to state a claim upon which relief may he granted. Doc. 28.
On June 7,2018, Johnson filed a motion for sharing discovery documents. Doc. 30.
On November 29, 2018, Johnson filed a motion to add additional claims for injury and
adjust damages accordingly. Doc. 32. In his motion, Johnsons alleges that when he was
discharged from a three-day stay at the hospital for pneumonia, he was not provided a wheelchair
and was "forced to sit on a bench seat with NO Coat." Johnson alleges that he was wrapped in
blankets and provided only a lap seathelt. Johnson alleges claims of negligence and deliberate
indifference against Defendants and makes an additional claim for $8,000,000.00 in damages.
Defendants have filed their opposition to Johnson's motion. Doc. 34.
On March 13, 2019, Johnson filed a motion to appoint counsel. Doc. 41.
Currently pending before the Court are Johnson's Motion to Appoint Counsel, Docs. 24 &
41; Motion to Correct Title and Pleading, Doc. 24; Motion for Reconsideration, Doc. 24; Motion
for Sharing Discovery Documents, Doc. 30; Motion to Add Additional Claims for Injury and
Adjust Damages, Doc. 32; Motion to Quash Defendant's Response in Opposition to Plaintiffs
Motion to Add Additional Claims for Injury, Doc. 36; and Defendants' Motion to Dismiss, Doc.
28.
II.
Facts and Procedural Background in State Court
On September 5, 2012, Johnson filed a pro se complaint in the Circuit Court of South
Dakota, Second Judicial District, against sixteen defendants alleging various claims including that
he was discriminated against on the basis of his disabilities. Leslie Johnson v. Douglas Weber,
Warden et. al. Civ. No. 12-3232(Feb. 25, 2014). On December 9, 2013, the circuit court held a
hearing on defendants' motion for judgment on the pleadings, or in the alternative, summary
judgment. The court held that defendants were entitled to summaryjudgment on .Johnson's ADA
claim because Johnson had not shown that he was disabled for purposes of the ADA. The court
stated that while Johnson had indicated that he was elderly and must make use of a wheelchair, he
had not shown that he was entirely confined to a wheelchair since the record indicated that a
wheelchair was assigned to him if he had to walk any distance. The court also found that Johnson
had not set forth any facts showing that he had been denied meaning access to the benefits of
services, programs, and activities offered at the penitentiary.
LEGAL STANDARD
In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
factual allegations of a complaint are assumed true and construed in favor ofthe plaintiff,"even if
it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very
remote and unlikely." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (intemal
quotations omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiffs obligation to provide the 'groimds' of his
'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of
the elements ofa cause ofaction will not do." Id. at 555(intemal citations omitted). The complaint
must allege facts, which, when taken as tme, raise more than a speculative right to relief. Id.;
Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008). "[Wjhere the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged—^but has not'show[n]'—'that the pleader is entitled to relief" Ashcroft v. Iqbal, 556
U.S. 662,679(2009)(citing Fed. R. Civ. P. 8(a)(2)). "Determining whether a complaint states a
plausible claim for relief is a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense." Id. (citation omitted).
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A pro se complaint,"however inartfully pleaded," must be held to "less stringent standards
than formal pleadings drafted hy lawyers" and ean only be dismissed for failure to state a elaim if
it appears "'beyond doubt that the plaintiff ean prove no set of faets in support of bis elaim which
would entitle him to relief.'" Haines v. Kerner, 404 U.S. 519, at 520-521 (quoting Cow/ey v.
Gibson,355 U.S.41,45-46(1957)). A reviewing eourtbas the duty to examine a pro se complaint
"to determine ifthe allegations provide for relief on any possible theory." Williams v. Willits, 853
F.2d 586, 588 (8tb Cir. 1988); see also Human v. Rowley, 205 F.3d 1346, 1999 WL 1204488, at
*2(8tb Cir. 1999)(per euriam). However, a eourt is not required to supply additional facts for a
pro se plaintiff, nor construet a legal theory that assumes faets whieh have not been pleaded. See
Stone V. Harry, 364 F.3d 912, 914 (8th Cir. 2004). The Court must also weigh all faetual
allegations in favor of the plaintiff, unless the facts alleged are elearly baseless. Denton v.
Hernandez, 504 U.S. 25, 32(1992).
"When eonsidering . .. a motion to dismiss under Fed. R. Civ. P 12(b)(6)[], the eourt
generally must ignore material outside the pleadings, but it may consider "some materials that are
part ofthe publie record or do not contradict the eomplaint, as well as materials that are neeessarily
embraeed by the pleadings^." Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079(8th Cir.
1999); see also 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil
2d § 1357(2018)(court may consider "matters of publie reeord, orders, items appearing in the
reeord ofthe ease, and exhibits attaehed to the eomplaint").
ANALYSIS
I.
Motion to Dismiss
A. Res Judicata - Title II Claims
Title II ofthe ADA provides that"no qualified individual with a disability shall, by reason
of sueh disability, be exeluded from partieipation in or be denied the benefits of the services,
programs, or aetivities of a publie entity, or be subjected to diserimination by any such entity.'"
42 U.S.C. § 12132. In order to state a elaim under Title II ofthe ADA,a plaintiff must allege:
(1) that he is a qualified individual with a disability; (2) that he was exeluded from
partieipation in or denied the benefits ofthe [prison's] serviees, programs, or activities.
^ "[D]ocuments necessarily embraced by the pleadings Include 'documents whose contents are alleged In the
complaint and whose authenticity no party questions, but which are not physically attached to the pleading.'"
Ashantiv. City of Golden Valley, 666 F.3d 1148,1151(8th Cir. 2012)(quoting Xt/shner v. Beverly Enters., Inc., 317
F.3d 820,831(8th Cir. 2003)).
or was otherwise subjected to discrimination by the [prison]; and (3) that such
exclusion, denial of benefits, or other discrimination was by reason of bis disability.
Baribou v. City ofMinneapolis, 596 F.3d 465,484(8tb Cir. 2010).
In their motion to dismiss. Defendants argue that dismissal ofthe complaint is required on
issue preclusion grounds. Specifically, Defendants contend that Johnson is precluded from
bringing a claim alleging that be is a qualified individual with a disability because a circuit court
bad already determined that Johnson was not a qualified individual with a disability under the
ADA and dismissed bis ADA claims brought in the circuit court with prejudice.
By enacting the Full Faith and Credit Statute, 28 U.S.C. § 1738,"Congress has specifically
required all federal courts to give preclusive effect to state-court judgments whenever the courts
of the State from which the judgments emerged would do so." Laase v. Cty. ofIsanti, 638 F.3d
853, 856 (8tb Cir. 2011)(quoting ^//en v. McCurry, 449 U.S. 90, 96 (1980)). "The law of the
forum that rendered the first judgment controls the res judicata analysis." Id. (quoting St. Paul
Fire & Marine Ins. Co. v. Compaq Comput. Corp., 539 F.3d 809, 821 (8tb Cir. 2008)).
As stated above. Defendants contend that Johnson is precluded by the prior circuit court
judgment from relitigating the issue of whether be is disabled under the ADA. Under South Dakota
law^, issue preclusion will apply only if:
(1) The issue decided in the prior adjudication was identical with the one presented in the
action in question;(2)There was a final judgment on the merits;(3) The party against
whom the plea is asserted was a party or in privity with a party to the prior adjudication;
and (4) The party against whom the plea is asserted bad a full and fair opportunity to
litigate the issue in the prior adjudication.
Grand State Property, Inc. v. Woods, Fuller, Schultz & Smith, P.C., 556 N.W.2d 84, 87 (S.D.
1996)(citing Black Hills Novelty Co. v. S.D. Commission on Gaming, 520 N.W.2d 70, 73 (S.D.
1994)(citations omitted)).
Many courts, including the Eighth Circuit Court of Appeals, have concluded, albeit in
different contexts, that res judicata does not prevent a plaintiff from relitigating the issue of bis
disability relating to a different time period than was adjudicated in the former action. See, e.g.,
Farley v. Commissioner of Social Security, 893 F.3d 929, 933 (6tb Cir. 2018)("Any earlier
proceeding that found or rejected the onset of a disability could rarely, if ever, have 'actually
^ The Court applies South Dakota law to the issue whether the doctrine of res judicata is applicable to this case
based on decisions rendered in the Circuit Court of South Dakota, Second Judicial District.
litigated and resolved' whether a person was disabled at some later date."); Kortz v. Guardian Life
Ins. Co. ofAm., 144 F.2d 676, 678 (10th Cir. 1944)(concluding that the judgment in the former
action did not constitute either res judicata or estoppel because the question of disability during
the time period of the present action had not been litigated and determined in the former action);
N.Y. Life Ins. Co. v. Stoner, 92 F.2d 845, 848 (8th Cir. 1937)(quoting U.S. Fidelity & Guar. Co.
V. McCarthy, 33 F.2d 7, 13 (8th Cir. 1929)("A person may be disabled to-day, and in a year from
now, without any change in physical condition, not be disabled. A one-handed man may not be
able to perform surgery to-day, and in a year from to-day may have overcome to some extent his
disability and be able to perform some part of the substantial duties of a surgeon."); of Bullyan v.
Heckler, 787 F.2d 417, 420 (8th Cir. 1986)(concluding that plaintiffs claim for social security
benefits was barred by res judicata because it "involve[d] the same injuries, the same issues, and
the same time period" as his earlier claim).
The Court agrees that "human health is rarely static" and that just because a plaintiff is
found by a court to be disabled within the meaning of the ADA at one point in time does not
necessarily mean that the plaintiff is disabled within the meaning of the ADA at a later point in
time. See Farley, 893 F.3d at 933. That being said, the Court foresees cases where a prior
judgment on the issue of a plaintiffs disability constitutes res judicata on that issue given the
particular facts and circumstances ofthe plaintiffs alleged disability.
However, under the facts of this case, the Court concludes that Johnson is not barred by
the prior circuit court judgment from relitigating the issue of whether he is disabled within the
meaning ofthe ADA. The summary judgment hearing on Johnson's ADA claims in circuit court
was held on December 9, 2013, and the court's decision was issued on February 25, 2014. The
court concluded that Johnson had not shown that he was disabled for purposes ofthe ADA because
while Johnson had indicated that he was elderly and must make use of a wheelchair, the court
found that the record demonstrated that was not entirely confined to a wheelchair. More than five
years has passed since the circuit court addressed whether Johnson was "disabled" under the ADA
and Johnson now alleges that he is confined to a wheelchair. Given these facts, the Court finds
that Johnson is not precluded by the circuit courtjudgment from relitigating whether he is disabled
within the meaning ofthe ADA.
On a final note, the Court finds that although Johnson is not precluded from relitigating the
issue of whether he is disabled under the ADA, Johnson may be precluded under the doctrine of
8
res judicata from relitigating any issues "which could have been properly raised and determined
in [the] prior action." Black Hills Jewelry Mfg. Co., v. Felco JewelIndus., Inc., 336 N.W.2d 153,
157(S.D. 1983). The Court is xmable to determine at this stage if any of Johnson's claims could
have been raised in the circuit court action.
B. Title V Claims
Title V of the ADA prohibits discrimination against "any individual because such
individual has opposed any act or practice made unlawful by [the ADA]." 42 U.S.C. § 12203(a).
To succeed on a Title V claim, a plaintiff must establish that(1) he or she engaged in statutorily
protected activity; (2) adverse action was taken against him or her; and (3) a causal connection
exists between the adverse action and protected activity. Steward v. Indep. Sch. Dist. No. 196, 481
F.3d 1034, 1043 (8th Cir. 2007).
Johnson alleges that he was retaliated against by prison officials for "filing A.D.A.
Complaints" and that prison officials encouraged and permitted inmates to retaliate against him
"for exercising his rights under the ADA." Doe. 9 at 2, ^ 2; 3,
2. Attached as exhibits to
Johnson's complaint are numerous "Kites" and "Informal Resolution Requests" that Johnson has
filed with MDSP either seeking an accommodation for his alleged disability, requesting that the
prison bring certain aspects oftheir facility into ADA compliance, or requesting that staff refrain
from retaliating against him for filing ADA grievances.
"Filing such[] grievance[s] is a protected activity under the ADA as long as [Johnson] had
a reasonable good faith belief in the allegations contained in the grievance." Amir v. St. Louis
University, 184 F.3d 1017,1035(8th Cir. 1999). In their briefin support oftheir motion to dismiss.
Defendants argue that Johnson did not possess "any 'good faith belief that the accommodations
he requested were appropriate" because he persisted in filing "ADA Complaints" even after the
circuit court legally determined that he was not "disabled" for purposes of the ADA. Defs. Br. at
9.
Consideration of facts and circumstances regarding whether Johnson possessed a
reasonable good faith belief in the allegations contained in his grievance will require the Court to
look beyond the pleadings which the Court may not do in considering whether he has stated a
claim for relief. However, the Court does find that the filing by Johnson of ADA grievances in
close proximity in time to the circuit court's decision is pertinent to the question of whether
Johnson possessed a reasonable good faith beliefin the allegations contained in his grievances.
9
II.
Motion to Appoint Counsel
Johnson moves the court to appoint him counsel. Docs. 24 & 41. "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's
civil case, the district court considers the complexity ofthe case, the ability ofthe indigent litigant
to investigate the facts, the existence of conflicting testimony, and the indigent's ability to present
his claim. Id. At this early stage of litigation, Johnson appears able to adequately present his
claims. Thus, his motions to appoint counsel. Docs. 24 & 41, are denied.
The Court is aware that this situation may change as litigation progresses. As the Eighth
Circuit Court of Appeals instructs, the Court will "continue to be alert to the possibility that,
because of procedural complexities or other reasons, later developments in the case may show
either that counsel should be appointed, or that strict procedural requirements should, in faimess,
be relaxed to some degree." Williams v. Carter, 10 F.3d 563, 567(8th Cir. 1993).
III.
Motion for Discovery
The Court stayed discovery pending the determination of Defendants' motion to dismiss.
Doc. 40. If Johnson would like to conduct discovery now that the determination ofthe motion to
dismiss has been made, he should direct his requests to Defendants' attorney. Johnson's motion
for sharing discovery documents. Doc. 30, is denied.
IV.
Motion to Add Claims & Motion to Correct Pleadings
Johnson has made several motions to add or modify his complaint. First, Johnson moves
the Court to allow him to correct his pleadings. Doc. 24. Second, Johnson moves to add a claim
to his complaint. Doc. 32. Under the local rules:
[A]ny party moving to amend a pleading will attach a copy of the proposed
amended pleading to its motion to amend with the proposed changes highlighted or
underlined so that they may be easily identified. If the court grants the motion, the
moving party will file a clean original of the amended pleading with the clerk of
court within 7 days.
D.S.D. Civ. LR 15.1. Johnson failed to comply with LR 15.1 in attempting to amend his pleadings.
While pro se pleadings are liberally construed, pro se plaintiffs must still follow the court's local
rules. See Bennett v. Dr. Pepper/Seven Up, Inc., 295 F.3d 805, 808 (8th Cir. 2002)(stating that
pro se status does not entitle litigants to disregard Federal Rules of Civil Procedure or local rules).
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If Johnson wishes to amend his original complaint, he must include with his motion to
amend a proposed complaint that includes each and every claim he wishes to bring against every
defendant in this action and he must comply with local rule 15.1. Johnson is cautioned that the
filing of an amended complaint replaces the original complaint and claims that are not realleged
are deemed abandoned. In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922,928(8th
Cir. 2005). The court will provide Johnson 45 days from the date of this order to file a motion to
amend and his proposed complaint. If Johnson does not file a motion to amend and proposed
complaint,the case will proceed forward with his complaint at Docket9 as screened by this Court s
March 22,2018, order.
V.
Motion for Reconsideration
Johnson asks the Court to reconsider its March 22,2018,order. Doc.20,denying Johnson s
motion for temporary restraining order and preliminary injunction. Doc. 24. In his motion for
reconsideration, Johnson alleges, as he did in his motions for temporary restraining order and
preliminary injunction that his he has difficulty breathing in a humid environment due to his COPD
and that he faces a threat ofirreparable harm to his health as a result of the poor air circulation in
the prison's handicap bathroom. Johnson alleges that "he has to use his Nitroglycerin during
showers, and between 2 to 4 puffs on his Rescue inhaler (Ventolins)." Doc. 24. Johnson also
alleges that his physician has diagnosed him with further medical conditions and that his physician
has prescribed him certain treatments for his medical conditions. Doc. 24.
The Court concludes, as it did in its March 22, 2018, order that Johnson not shown that he
is likely to succeed on the merits ofhis claims. Johnson has not demonstrated that his physicians
have instructed him to stay out of humid environments or that Defendants knew of any such
instruction and were deliberately indifferent to Johnson's alleged medical needs. Johnson's
motion for reconsideration. Doc. 24,is thereby denied.
Accordingly, it is ORDERED;
(1) Johnson's Motion to Appoint Counsel, Docs. 24 & 41,is DENIED;
(2) Johnson's Motion for Reconsideration, Doc. 24 is DENIED;
(3) Johnson's Motion for Sharing Discovery Documents, Doc. 30,is DENIED;
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(4) Johnson's Motion to Correct Title and Pleadings, Doc. 24, and Johnson's Motion to
Add Additional Claims for Injury and Adjust Damages, Doc. 32, is DENIED. If
Johnson wishes to amend his original complaint, he must include with his motion to
amend a proposed complaint that includes each and every claim he wishes to bring
against every defendant in this action and he must comply with local rule 15.1. The
court will provide Johnson 45 days from the date ofthis order to file a motion to amend
and his proposed complaint. If Johnson does not file a motion to amend and proposed
complaint, the case will proceed forward with his complaint at Docket 9 as screened
by this Court's March 22,2018, order;
(5) Johnson's Motion to Quash Defendant's Response in Opposition to Plaintiffs Motion
to Add Additional Claims for Injury, Doc. 36, is DENIED;
(6) Defendants' Motion to Dismiss, Doc. 28,is DENIED;
(7) Defendants shall have an additional fourteen (14) days to file their answer if Johnson
does not move to amend his complaint before the 45-day deadline. If Johnson moves
to amend his complaint before the 45-day deadline. Defendants shall file their answer
within twenty-one(21)days ofthe date ofthe Court's order granting Johnson's motion
to amend, or within fourteen (14) days of the date of the Court's order denying
Johnson's motion to amend, whichever applies;
(8) The Clerk of Court shall provide a copy of this Memorandum Opinion and Order to
Johnson.
Dated this
"day of March, 2019.
BY THE COURT:
4^wrence L. Piersol
ATTEST;
United States District Judge
MATTHEW W.THIELEN,CLERK
BY:
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