Maday v. Dooley et al

Filing 57

ORDER granting in part and denying in part defendants' 43 Motion for Protective Order. Signed by US Magistrate Judge Veronica L. Duffy on 03-23-18. (Duffy, Veronica)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

STANLEY J. MADAY,

4:17-CV-04168-KES

Plaintiff,

vs.

BOB DOOLEY, CHIEF WARDEN AT
MIKE DURFEE STATE PRISON,
INDIVIDUAL AND OFFICIAL CAPACITY;
DENNIS KAEMINGK, SECRETARY OF
THE SOUTH DAKOTA DOC,
INDIVIDUAL AND OFFICIAL CAPACITY;
DR. MARY CARPENTER, DIRECTOR OF
THE DEPARTMENT OF HEALTH,
INDIVIDUAL AND OFFICIAL CAPACITY;
JENNIFER STANWICK-KLIMEK,
DEPUTY WARDEN AT MIKE DURFEE
STATE PRISON, INDIVIDUAL AND
OFFICIAL CAPACITY; REBECCA
SCHIEFFER, ASSOCIATE WARDEN AT
MIKE DURFEE STATE PRISON,
INDIVIDUAL AND OFFICIAL CAPACITY;
ALEJANDRO REYES, ASSOCIATE
WARDEN AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; BRENT FLUKE, ASSOCIATE
WARDEN AT MIKE DURFEE STTAE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; JOSH KLIMEK, UNIT
MANAGER AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; TRAVIS TJEERDSMA, CASE

ORDER GRANTING MOTION FOR
PROTECTIVE ORDER IN PART
Docket No. 43

MANAGER AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; TAMMY DEJONG, CASE
MANAGER AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; PA MICHAEL JOE HANVEY,
MEDICAL PROVIDER AT MIKE
DURFEE STATE PRISON, INDIVIDUAL
AND OFFICIAL CAPACITY; PA BRAD
ADAMS, MEDICAL PROVIDER AT MIKE
DURFEE STATE PRISON, INDIVIDUAL
AND OFFICIAL CAPACITY; DR.
STEPHAN SCHROEDER, MEDICAL
PROVIDER AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; MISTY TOLSMA-HANVEY,
NURSING SUPERVISOR, AT MIKE
DURFEE STATE PRISON INDIVIDUAL
AND OFFICIAL CAPACITY; LINDSEY
RABBASS, NURSE AT MIKE DURFEE
STATE PRISON, INDIVIDUAL AND
OFFICIAL CAPACITY; ROBIN MYER,
NURSE AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; CANDICE FEJFAR, NURSE
AT MIKE DURFEE STATE PRISON,
INDIVIDUAL AND OFFICIAL CAPACITY;
DAYNA KLAWITTER, NURSE AT MIKE
DURFEE STATE PRISON, INDIVIDUAL
AND OFFICIAL CAPACITY; DENNIS
CROPPER, CORRECTIONAL OFFICER
AT MIKE DURFEE STATE PRISON,
INDIVIDUAL AND OFFICIAL CAPACITY;
THOMAS HUITEMA, CORRECTIONAL
OFFICER AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; MICHAEL MEYER,
CORRECTIONAL OFFICER AT MIKE
DURFEE STATE PRISON, INDIVIDUAL
AND OFFICIAL CAPACITY; LORI
STRATMAN, CORRECTIONAL OFFICER
AT MIKE DURFEE STATE PRISON,
INDIVIDUAL AND OFFICIAL CAPACITY;
MIKE GROSSHUESCH,
CORRECTIONAL OFFICER AT MIKE
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DURFEE STATE PRISON, INDIVIDUAL
AND OFFICIAL CAPACITY; NICOLE ST.
PIERRE, CORRECTIONAL OFFICER AT
MIKE DURFEE STATE PRISON,
INDIVIDUAL AND OFFICIAL CAPACITY;
MURIEL NAMMINGA, LAUNDRY
SUPERVISOR AT MIKE DURFEE STATE
PRISON, INDIVIDUAL AND OFFICIAL
CAPACITY; CATHERINE SCHLIMGEN,
LEGAL COUNSEL FOR THE SOUTH
DAKOTA DOC, INDIVDUAL AND
OFFICIAL CAPACITY; UNKNOWN CBM
FOOD SERVICES EMPLOYEES,
INDIVIDUAL AND OFFICIAL
CAPACITIES; UNKNOWN SOUTH
DAKOTA DOC EMPLOYEES,
INDIVIDUAL AND OFFICIAL
CAPACITES; UNKNOWN SOUTH
DAKOTA DOH EMPLOYEES,
INDIVIDUAL AND OFFICIAL
CAPACITIES; JON E. LITSCHER,
SECRETARY OF THE WISCONSIN
DOC, INDIVIDUAL AND OFFICIAL
CAPACITY; KATHARINE A. ARISS,
ASSISTANT LEGAL COUNSEL FOR THE
WISCONSIN DOC, INDIVIDUAL AND
OFFICIAL CAPACITY; THOMAS P.
MALONEY, LIBRARY SERVICES AND
EDUCATIONAL TECHNOLOGY
COORDINATOR FOR THE WISCONSIN
DOC, INDIVIDUAL AND OFFICIAL
CAPACITY; UNKNOWN WISCONSIN
DOC EMPLOYEES, INDIVIDUAL AND
OFFICIAL CAPACITIES; AND CBM
FOOD SERVICES, MEAL AND
COMMISSARY PROVIDER FOR THE
SOUTH DAKOTA DOC, OFFICIAL
CAPACITY;

Defendants.

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This matter is before the court on the pro se complaint of Stanley Maday
alleging numerous claims under 42 U.S.C. § 1983 and under the Americans
with Disabilities Act (ADA). Pending is a motion for a protective order by
several of the defendants. Docket No. 43. Defendants allege they have yet to
file an answer to Mr. Maday’s complaint, but that he is already peppering
defendants with numerous discovery requests which are extremely extensive in
their scope. Defendants seek an order staying discovery in this case until they
are able to file a motion seeking to enforce the qualified immunity defense.
Mr. Maday objects to defendants’ motion. See Docket No. 55.1
In order to show a prima facie case under 42 U.S.C. § 1983, Mr. Maday
must show (1) defendants acted under color of state law and (2) “ ‘the alleged
wrongful conduct deprived him of a constitutionally protected federal right.’ ”
Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010) (quoting Schmidt v. City of
Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009)).
Qualified immunity protects government officials from liability and from
having to defend themselves in a civil suit if the conduct of the officials “does
not violate clearly established statutory or constitutional rights.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is immunity from
suit, not just a defense to liability at trial. Mitchell v. Forsyth, 472 U.S. 511,
526 (1985). Therefore, the Supreme Court has “repeatedly stressed the

The court notes that discovery is not to take place until after defendant has
answered with few exceptions. See FED. R. CIV. P. 26(d).
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importance of resolving immunity questions at the earliest possible stage in
litigation.” Hunter v. Bryant, 502 U.S. 224, 536 (1991).
To determine whether an official may partake of qualified immunity, two
factors must be determined: (1) whether the facts that plaintiff has shown
make out a violation of a constitutional right and (2) whether that
constitutional right was “clearly established” at the time of the official’s acts.
Saucier v. Katz, 533 U.S. 194, 201 (2001). If the court finds that one of the two
elements is not met, the court need not decide the other element, and the court
may address the elements in any order it wishes “in light of the circumstances
of the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Defendants are entitled to qualified immunity if the answer to either of the
Saucier prongs is “no.”
“Qualified immunity gives government officials breathing room to make
reasonable but mistaken judgments,” and “protects ‘all but the plainly
incompetent or those who knowingly violate the law.’ ” Stanton v. Sims, 571
U.S. 3, 5 (2013) (quoting Ashcroft v. al-Kidd, 563 U.S. 731 (2011) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986))). “ ‘We do not require a case
directly on point’ before concluding that the law is clearly established, ‘but
existing precedent must have placed the statutory or constitutional question
beyond debate.’ ” Stanton, 571 U.S. at 5. “ ‘Officials are not liable for bad
guesses in gray areas; they are liable for transgressing bright lines.’ ” Ambrose

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v. Young, 474 F.3d 1070, 1077 (8th Cir. 2007) (quoting Hunter v. Bryant, 502
U.S. 224, 229 (1991)).
The Supreme Court has stated that “if the defendant does plead the
[qualified] immunity defense, the district court should resolve that threshold
question before permitting discovery.” Crawford-El v. Britton, 523 U.S. 574,
598 (1998) (citing Harlow, 457 U.S. at 818). Only if the plaintiff’s claims
survive a dispositive motion on the issue of qualified immunity will the plaintiff
“be entitled to some discovery.” Id. Even then, the Court has pointed out that
Fed. R. Civ. P. 26 “vests the trial judge with broad discretion to tailor discovery
narrowly and to dictate the sequence of discovery.” Id. Such discretion
includes the ability to establish limits on the number of depositions and
interrogatories, to limit the length of depositions, to limit the number of
requests to admit, to bar discovery on certain subjects, and to limit the time,
place, and manner of discovery as well as its timing and sequence. Id.
Here, defendants have asserted the affirmative defense of qualified
immunity. See Docket No. 43. Based on the above law, the court hereby
ORDERS that defendant’s motion to stay [Docket No. 43] is granted in
part and denied in part. All discovery in this case except as addressed below is
stayed until after resolution of defendants’ qualified immunity defense.
Defendants shall file their motion based on the qualified immunity defense as
soon as possible, but no later than July 1, 2018. It is further

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ORDERED that defendant shall provide immediately to Mr. Maday any
and all medical records, including kites regarding medical care, pertaining to
himself during his period of incarceration with defendants. This order is
intended to cover all medical records for Mr. Maday, even if those records are in
the custody of medical providers outside the South Dakota state penitentiary or
South Dakota Department of Health system. If necessary, Mr. Maday shall
sign a release allowing independent medical providers to disclose his medical
records to defendants in order to effectuate this order.
DATED March 23, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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