Merrival v. State of South Dakota et al
ORDER granting 65 Motion to Dismiss; denying as moot 72 Motion to Continue; denying as moot 75 Motion; denying as moot 76 Motion to Expedite; denying as moot 82 Motion; denying as moot 85 Motion for notice; denying as moot 86 Motio n; denying as moot 104 Motion to Amend/Correct; denying as moot 105 Motion for Leave to Proceed in forma pauperis; denying as moot 108 Motion for Reconsideration; denying as moot 111 Motion. Signed by Chief Judge Jeffrey L. Viken on 6/5/17. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
MICHEAL LYNN MERRIVAL, JR.,
ORDER OF DISMISSAL
CAPTAIN HAGA, Pennington County
Plaintiff Micheal Merrival, Jr., an inmate at the Pennington County Jail in
Rapid City, South Dakota, filed a complaint under 42 U.S.C. § 1983 against the
defendant Captain Haga. (Docket 1). Id. Mr. Merrival alleges Captain Haga
directed her staff to refuse him medical service. Id. at p. 4. Mr. Merrival claims
that because of the lack of proper medical care his condition worsened and he
now suffers from “depression, anxiety, and possible psychopathy.” Id.
On May 17, 2016, the court granted defendant’s motion pursuant to Fed.
R. Civ. P. 30(a)(2)(B) to take the deposition of Mr. Merrival, who was then
incarcerated at the South Dakota State Penitentiary. (Docket 54). The order
directed defendant to coordinate a date and time for the deposition with the
prison officials. Id. On September 6, 2016, the court entered an order denying
Mr. Merrival’s third request for appointment of counsel. (Docket 60 at p. 2). In
the order the court concluded “it is clear . . . that Mr. Merrival is unwilling to
work with any attorney or to accept their advice as to how to proceed with his
claim.” Id. at pp. 1-2 (references omitted). The order advised Mr. Merrival “that
a district court has discretion to dismiss an action under Fed. R. Civ. P. 41(b) for
a plaintiff’s failure to prosecute, or to comply with Federal Rules of Civil
Procedure or any court order.” Id. at p. 3 (brackets omitted). Mr. Merrival was
returned to the Pennington County Jail on October 12, 2016. (Docket 62).
Defendant served a notice of deposition on plaintiff dated October 19,
2016. (Docket 67-7). The notice set Mr. Merrival’s deposition for October 27,
2016, at the Pennington County Jail. Id. at p. 1. On that date, defense
counsel, together with a court reporter, set up for the deposition in the programs
room of the jail pod where Mr. Merrival was incarcerated. (Docket 66 at p. 2).
Mr. Merrival refused to leave his jail cell and passed a note through a third party
to defense counsel. The note advised defense counsel that Mr. Merrival was
“incompetent to show for this hearing without counsel for I am mentally unstable
being on two forms of psyche [sic] medication given by the Pennington County
Jail, of mental health. I am not appearing until I have counsel to represent me
when I’m in the right state of mind.” (Docket 67-8). Defendant filed a motion
to dismiss plaintiff’s complaint pursuant to Fed. R. Civ. P. 37 for his intentional
refusal to attend his deposition. (Docket 65).
On November 1, 2016, Mr. Merrival filed a fourth motion for appointment
of counsel. (Docket 63). In this motion Mr. Merrival asserted he was “currently
unable to act ‘pro se’ for my mental stability is incompetent from psychotropic
medication. I will like to proceed with counsel for my state of mind is hindered.
Please order an appointed counsel to represent me as I believe this will be
fundamentally fair under my fair trial rights.” Id. at p. 1. In a supplemental
filing in support of the motion, Mr. Merrival claims the two attorneys previously
appointed to represent him were ineffective as they were trying “to allow the
defense to try and establish a weak ground to file a motion to dismiss.” (Docket
68 at p. 2). Mr. Merrival asked the court to now appoint “counsel to file a
counter motion against the defendant or to counsel my party to professionally
filing an appeal or habeas corpus of ineffective assistance of counsel.” Id.
On January 5, 2017, the court denied the fourth motion for appointment
of counsel. (Docket 79). The order required Mr. Merrival to file a response to
the defendant’s motion to dismiss by January 27, 2017. Id. at p. 2. The order
again reminded Mr. Merrival of the court’s authority to dismiss a case under Fed.
R. Civ. P. 41(b) for “plaintiff’s failure to prosecute, or to comply with Federal
Rules of Civil Procedure or any court order.” Id.
On January 23, 2017, Mr. Merrival filed his response to defendant’s
motion to dismiss. (Docket 81). Attached to his response were 88 pages of the
Clerk’s index and a number of the pleadings and correspondence in this case and
Mr. Merrival’s state court proceedings. (Docket 81-1). In his response, Mr.
Merrival cited the Holy Bible, 42 U.S.C. § 1983, 28 U.S.C. § 1915, he discussed
the plight of his journey through the state criminal system and called this court
a “kangaroo court.” (Docket 81 at pp. 1-7). Mr. Merrival’s response invoked a
“work-product doctrine” to protect his case from disclosure to the defendant.
Id. at pp. 8-28. Mr. Merrival asked the court to enter partial summary judgment
in his favor and enter an injunction against the defendant and her attorneys.
Id. at p. 28.
Two days later, on January 25, Mr. Merrival filed a motion for nondismissal of his case and to suppress defendant’s motion to dismiss. (Docket
82). This motion was accompanied by a memorandum and affidavit from Mr.
Merrival. (Dockets 83 & 84). In this submission, Mr. Merrival asserts his
written declaration to defense counsel on October 27, 2016, was not a “note” but
a statement in compliance with Fed. R. Civ. P. “26(a)(1)(A)(B)(iv)” and that this
section prohibits his case from proceeding without an attorney. (Docket 83 at
pp. 3-4). Mr. Merrival argues that by attempting to take his deposition while he
is in pro se status, defendant “tried to vigorously violate the rules of 26 by
obtaining immune tangible work-product from the pro se plaintiff.” Id. at p. 4.
He also claims defense counsel violated Fed. R. Civ. P. 11 by “aiming to violate
Plaintiff’s right to due process and disrespected the laws and rules of privilege
and immunity.” Id. at pp. 4-5.
While defendant’s motion to dismiss was pending, Mr. Merrival filed other
unrelated motions, including:
A motion to continue his case until he is released from
incarceration. (Docket 72);
A motion to exercise Rule 26(f). (Docket 75);
A motion to expedite discovery. (Docket 76);
A motion for notice pursuant to D.S.D. Civ. LR 29.1.
(Docket 85); and
A motion for copies of all pleadings filed in the case. (Docket
In none of Mr. Merrival’s submissions does he acknowledge his obligation to
comply with the court’s order allowing his deposition to be taken or acknowledge
defendant’s right to take his deposition.
Mr. Merrival’s response to the defendant’s motion to dismiss and his
motion for non-dismissal of his case provide no factual justification or legal basis
for refusing to attend his deposition. It is clear from his responses and other
motions that Mr. Merrival will never comply with the court’s order permitting his
Prior orders cautioned Mr. Merrival that if he failed to comply with the
court’s orders, that dismissal of his complaint with prejudice may occur.
(Dockets 60 & 79). Plaintiff’s pro se status does not entitle him to disregard the
Federal Rules of Civil Procedure. Bennett v. Dr. Pepper/Seven Up, Inc., 295
F.3d 805, 808 (8th Cir. 2002). Pro se litigants also must comply with court rules
and directives. Soliman v. Johanns, 412 F.3d 920, 922 (8th Cir. 2005). “A
district court has discretion to dismiss an action under [Fed. R. Civ. P. 41(b)] for
a plaintiff’s failure to prosecute, or to comply with Federal Rules of Civil
Procedure or any court order.” Henderson v. Renaissance Grand Hotel,
267 Fed. Appx. 496, 2008 WL 540172 at *1 (8th Cir. 2008); see also Link v.
Wabash R.R. Co., 370 U.S. 626, 630-33 (1962) (finding a district court may
dismiss an action under Rule 41(b) on its own initiative and “without affording
notice of its intention to do so or providing an adversary hearing before acting[,]”
and recognizing a district court has the inherent authority to “manage [its] own
affairs so as to achieve the orderly and expeditious disposition of cases”). The
court finds dismissal of plaintiff’s complaint is appropriate given his disregard of
the rules and the court’s orders. See Fed. R. Civ. P. 37(b)(2)(A)(iv) and 41(b).
The court next must determine whether the dismissal of plaintiff’s
complaint should be with or without prejudice. “Dismissal with prejudice is an
extreme sanction and should be used in cases of willful disobedience of a court
order or continued persistent failure to prosecute a complaint.” Givens v. A.H.
Robins Co., Inc., 751 F.2d 261, 263 (8th Cir. 1984). Based on the procedural
history of this case and plaintiff’s failure to comply with the court’s order, the
court finds it appropriate to dismiss the complaint with prejudice.
Accordingly, pursuant to Rule 37(b)(2)(A)(iv) and Rule 41(b) and the court’s
inherent authority, it is
ORDERED defendant’s motion to dismiss (Docket 65) is granted.
IT IS FURTHER ORDERED that plaintiff’s complaint (Docket 1) is
dismissed with prejudice.
IT IS FURTHER ORDERED that plaintiff’s’ motions (Dockets 72, 75, 76,
82, 85, 86, 104, 105, 108 & 111) are denied as moot.
Dated June 5, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
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