Shaw v. Kaemingk et al

Filing 195

ORDER denying 147 Motion to Compel; denying 149 Motion to Compel; denying 151 Motion to Compel; denying 153 Motion to Compel; denying 155 Motion to Compel; denying 157 Motion to Compel; denying 159 Motion to Compel; denying [161 ] Motion to Compel; denying 163 Motion to Compel; denying 165 Motion to Compel; denying 167 Motion to Compel; denying 182 Motion to Appoint Counsel ; denying as moot 185 Motion to Extend Deadlines ( Discovery due by 12/20/2019, Motio ns due by 1/7/2020.); denying as moot 187 Motion to Extend Deadlines ( Discovery due by 12/20/2019, Motions due by 1/7/2020.); denying as moot 188 Motion for Joinder. Signed by U.S. District Judge Karen E. Schreier on 11/21/2019. Mailed to Plaintiff. (MSB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES ELMER SHAW,

4:17-CV-04116-KES
Plaintiff,

vs.
DENNIS KAEMINGK, SECRETARY OF
CORRECTIONS; INDIVIDUAL AND
OFFICIAL CAPACITY; ROBERT
DOOLEY, DIRECTOR OF PRISON
OPERATIONS; INDIVIDUAL AND
OFFICIAL CAPACITY; DARIN YOUNG,
WARDEN; INDIVIDUAL AND OFFICIAL
CAPACITY; JENNIFER DRIESKE,
DEPUTY WARDEN; INDIVIDUAL AND
OFFICIAL CAPACITY; JENNIFER
STANWICK-KLEMIK, DEPUTY
WARDEN; INDIVIDUAL AND OFFICIAL
CAPACITY; DERRICK BIEBER, UNIT
MANAGER; INDIVIDUAL AND OFFICIAL
CAPACITY; TAMMI MERTINS-JONES,
CULTURAL ACTIVITIES
COORDINATOR; INDIVIDUAL AND
OFFICIAL CAPACITY; ELIZABETH
EFFLING, UNIT COORDINATOR;
INDIVIDUAL AND OFFICIAL CAPACITY;
STEVE BAKER, MAJOR; INDIVIDUAL
AND OFFICIAL CAPACITY; LINDA
MILLER-HUNHOFF, MAIL
SUPERVISOR; INDIVIDUAL AND
OFFICIAL CAPACITY; SHARRON
REIMANN, MAILROOM; INDIVIDUAL
AND OFFICIAL CAPACITY; JORDAN
STOREVIK, MAILROOM; INDIVIDUAL
AND OFFICIAL CAPACITY; CBM
CORRECTIONAL FOOD SERVICES,
INDIVIDUAL AND OFFICIAL
CAPACITIES; JOHN TWEIRWEILLER,

ORDER DENYING PLAINTIFF’S
THIRD MOTION TO APPOINT
COUNSEL AND ORDER ON
MISCELLANEOUS MOTIONS

CBM DISTRICT MANAGER;
INDIVIDUAL AND OFFICIAL CAPACITY;
UNKNOWN CBM EMPLOYEES,
INDIVIDUAL AND OFFICIAL
CAPACITIES;
Defendants.
Plaintiff, James Elmer Shaw, is an inmate at the South Dakota State
Penitentiary (SDSP) in Sioux Falls. Shaw filed a pro se civil rights lawsuit
under 42 U.S.C. § 1983. Docket 1. At this point, Shaw’s remaining claims
arise under the Religious Land Use and Institutionalized Persons Act (RLUIPA)
and the First Amendment (free exercise, right to receive mail, access to
courts), and he has a claim of retaliation. See Docket 139.
Shaw filed a third motion to appoint counsel (Docket 182) and multiple
motions to compel discovery (Dockets 147, 149, 151, 153, 155, 157, 159, 161,
163, 165, 167). This court addresses these motions below.
I.

Third Motion to Appoint Counsel
Shaw filed a third motion to appoint counsel. Docket 182. “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). Under 28
U.S.C. § 1915(e)(1) “[t]he court may request an attorney to represent any
person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). District courts may
appoint counsel and the Eighth Circuit has acknowledged the “express
authority of the district court to make such appointments.” Nelson v. Redfield
Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984); see also White v.
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Walsh, 649 F.2d 560, 563 (8th Cir. 1981). “[T]he appointment of counsel
should be given serious consideration by the district court if the plaintiff has
not alleged a frivolous or malicious claim.” Nelson, 728 F.2d at 1005.
When determining whether to appoint counsel to a pro se litigant, the
court will look at the factual and legal complexity of the claims. In King v.
Patterson, the Eighth Circuit held that the district court did not err in denying
a prisoner’s motion for appointment of counsel. 999 F.2d 351, 353 (8th Cir.
1993). The Eighth Circuit reasoned that the denial of the plaintiff’s motion for
appointment of counsel was appropriate “[b]ecause the case was neither
factually nor legally complex, the complaint alleged a single incident of
excessive force, and the Court held that King had clearly communicated his
concerns and could adequately present the facts of his case to the Court[.]” Id.
Factual complexity is not the only factor that a district court considers
whether appointment of counsel is appropriate. Johnson v. Williams, 788 F.2d
1319, 1322 (8th Cir. 1986) (citing Maclin v. Freake , 650 F.2d 885, 888 (7th
Cir. 1981)). The Eighth Circuit considers “the factual complexity of the case,
the ability of the indigent to investigate the facts, the existence of conflicting
testimony, the ability of the indigent to present his claim and the complexity of
the legal issues.” Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991)
(citing Johnson, 788 F.2d at 1322-23.). In Johnson, the Eighth Circuit held that
the district court erred when it denied plaintiff’s motion for counsel solely
based on the plaintiff’s failure to raise factually complex issues. 788 F.2d at
1322.
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At this time, Shaw appears to be able to adequately present his
remaining claims. His remaining claims are not legally or factually complex.
Discovery is still ongoing, and Shaw was able to survive a summary judgment
motion on a number of claims. See Docket 139. Further, Shaw has prepared
interrogatories and served them on opposing counsel. See Dockets 148-1, 1501, 152-1, 154-1, 156-1, 158-1, 160-1, 162-1, 164-1, 166-1, 168-1. Shaw’s
briefs, motions, and interrogatories show his ability to clearly communicate his
legal positions to the other parties as well as to the court. Thus, his third
motion to appoint counsel (Docket 182) is denied.
II.

Motions to Compel Discovery
On June 28, 2019, Shaw moved for orders compelling discovery.

Dockets 147, 149, 151, 153, 155, 157, 159, 161, 163, 165, 167. 1 In the
motions to compel, Shaw claims that on May 17, 2019, he served defendants
with a “second set of interrogatories [because they lost the first copies],
production requests and request for admissions.” Docket 147 ¶ 10. Shaw
claims that the defendants’ responses to the admission section were “evasive,
incomplete and otherwise unresponsive.” Id. at ¶ 13.
On July 5, 2019, the defendants filed a brief in support of their response
to Shaw’s motions to compel discovery and stated that “[d]efendants are still in
the process of compiling the responses to Plaintiff’s Interrogatories and

These motions use the same language but insert the proper defendants. After
each motion, Shaw filed a brief that includes a copy of the interrogatories that
he sent and have not been answered. See Dockets 148-1, 150-1, 152-1, 154-1,
156-1, 158-1, 160-1, 162-1, 164-1, 166-1, 168-1.
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Requests for Production of Documents. Defendants expect to have responses to
Plaintiff within the next two weeks.” Docket 172 at 2. Federal Rule of Civil
Procedure 37(a)(1) governs motions to compel discovery. It provides:
On notice to other parties and all affected persons, a party may
move for an order compelling disclosure or discovery. The motion
must include a certification that the movant has in good faith
conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court
action.
Shaw has not shown further efforts to confer with defendants after they
stated they were working on compiling their responses. See Docket 185.
Defendants have stated their intentions of compliance and Shaw has not
shown that he has made an effort to obtain this material without court action.
Thus, Shaw’s motions to compel discovery (Dockets 147, 149, 151, 153, 155,
157, 159, 161, 163, 165, 167) are denied. But in the event defendants have
not responded to Shaw’s discovery requests, the defendants’ responses must
be sent to Shaw no later than December 2, 2019.
The parties have filed miscellaneous motions for extensions or stays
until the motions to compel were ruled on (Dockets 185, 187, 188). The court
denies these motions (Docket 185, 187, 188) as moot because this court sets a
new schedule. Defendants must serve their responses to Shaw’s
interrogatories by December 2, 2019, and all other discovery must be
completed by December 20, 2019. Further, all defendants’ motions for
summary judgment must be filed by January 7, 2020.

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Thus, it is ORDERED
1.

Shaw’s third motion to appoint counsel (Docket 182) is denied.

2.

Shaw’s motions to compel discovery (Dockets 147, 149, 151, 153,
155, 157, 159, 161, 163, 165, 167) are denied.

3.

Defendants must answer the interrogatories by December 2,
2019, and all other discovery must be completed by December
20, 2019.

4.

Defendants must file their motions for summary judgment by
January 7, 2020.

5.

Motions to extend deadlines (Dockets 185, 187, 188) are denied as
moot.
Dated November 21, 2019.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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