Johnson v. Leidholt et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
BRETT A. JOHNSON,
Plaintiff,
vs.
MIKE LEIDHOLT, Secretary of
Corrections, in his official capacity,
DARIN YOUNG, Chief Warden, SD
Penitentiary System, in his official
capacity, BRENT FLUKE, Warden, Mike
Durfee State Prison, in his official
capacity, and TAMMY DOYLE, Unit
Manager, Barracks, in her official
capacity,
Defendants.
4:20-CV-04012-KES
ORDER DENYING DEFENDANTS’
MOTIONS TO DISMISS AND FOR A
PROTECTIVE ORDER AND ORDER
GRANTING IN PART AND DENYING
IN PART PLAINTIFF’S MOTION TO
COMPEL
Plaintiff, Brett A. Johnson, filed a pro se civil rights lawsuit under 42
U.S.C. § 1983. Docket 1. This court held that defendants were entitled to
summary judgment, in their individual capacities, based on qualified
immunity. Docket 44. Johnson’s claims against defendants in their official
capacities for injunctive relief are still pending. Id. at 13. Now, defendants move
to dismiss under Federal Rule of Civil Procedure 12(b)(6) and move for a
protective order. Dockets 46, 48. Johnson moves to compel, to strike, and for
an extension. Dockets 52, 58, 61.
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I. 	Defendants’ Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for motions
to dismiss for “failure to state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6). When considering such motions, the court must accept as
true the allegations in the complaint and construe the pleadings in the light
most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The
pleaded facts must demonstrate a plausible claim, that is, one in which the
pleader has shown more than an abstract “possibility” that the defendant has
engaged in actionable misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The court must assume as true all facts well pleaded in the complaint. Estate
of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Civil
rights and pro se complaints must be liberally construed. Erickson, 551 U.S. at
94; (Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even with
this construction, “a pro se complaint must contain specific facts supporting
its conclusions.” Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985); see
also Ellis v. City of Minneapolis, 518 F. App'x 502, 504 (8th Cir. 2013). 	Civil
rights complaints cannot be merely conclusory. Davis v. Hall, 992 F.2d 151,
152 (8th Cir. 1993); Parker v. Porter, 221 F. App'x 481, 482 (8th Cir. 2007).
This court granted defendants’ summary judgment that were brought
against them in their individual capacities based on qualified immunity. Docket
44. Now, defendants argue that this court’s order granting summary judgment
supports their motion to dismiss under Rule 12(b)(6). Docket 46. Defendants
claim that because the court has ruled that Johnson failed to raise a genuine
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issue of material fact that they violated Johnson’s constitutional right,
Johnson’s claim for injunctive relief would be precluded and not survive Rule
12(b)(6) review. See Docket 46. But if this court considered its order on
summary judgment when addressing defendants’ motion to dismiss, it would
essentially be ruling on a motion for summary judgment without allowing
Johnson to engage in discovery. Johnson is entitled to discovery on his claim
for injunctive relief. For these reasons, this court denies defendants’ motion to
dismiss (Docket 46).
II. 	Defendants’ Motion for a Protective Order
Defendants move to stay discovery until their pending motion to dismiss
is ruled on. Docket 48. Because this court has denied their motion to dismiss,
their motion for a protective order (Docket 48) is denied as moot.
III. 	Johnson’s Motion to Compel Discovery
Johnson moves to compel discovery and for defendants “to produce for
inspection and copying the documents requested on July 10, 2020; July 17,
2020; and August 3, 2020.” Docket 52. It appears Johnson is referencing
discovery requests filed in Dockets 29, 35, 36, and 42.1
This court previously ordered that “[d]efendants must respond to
Johnson’s already served discovery requests within 30 days . . . If [d]efendants
fail to respond to Johnson’s discovery requests at Dockets 15 and 35 within 30
days, Johnson should file a motion to compel discovery at that time.” Docket
1 The dates that Johnson references match the date that he signed the
documents in Dockets 29, 35, 36, 42.
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44 at 12-13. Now, Johnson seeks to compel defendants to respond to his
requests made on “July 10, 2020; July 17, 2020; and August 3, 2020 . . . .”
Docket 54 at ¶ 1.
At Docket 29, Johnson seeks:
1. Any and all grievances, formal or informal; complaints, or other
documents received by prison staff at Mike Durfee [S]tate Prison
concerning excessive heat, poor ventilation or any other related
living conditions in the Barracks, and any memoranda, investigative
files, or other documents or electronically stored information created
in response to such complaints since January 1, 2007.
2. Any and all inspections and the conclusion of said inspections by
any parties at the local, states, or federal level, including but not
limited to building and health inspections since the opening of the
Barracks in 2005.
3. 	The 	name 	of 	the 	owner 	and 	Company 	that 	designed 	and
constructed the Barracks, two names if the building was designed
and constructed by two different parties; and any material lists and
purchase receipts for the construction of the Barracks.
4. The name of the owner and company that installed the ventilation
and heating units for the Barracks, two names if these items were
installed by two different companies and any material lists and
purchase receipts for the installation of said items in the Barracks.
5. Any and all documents pertaining to the receiving and use of state
or federal grants for the building of the Barracks, including but not
limited to final building inspections made for the allotting of said
grants.
6. The complete medical records or electronically stored information
pertaining to the medical records of the Plaintiff from January 1,
2012 to the present.
7. Any and all medical records of other inmates who suffered heat
conditions while living in the Barracks redacting any identifying
information of said inmates since 2005.
Docket 29 at 1-2.
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Defendants argue that Johnson’s discovery requests are “burdensome
and oppressive, [and] they seek the production of documents that are well
outside the applicable statute of limitations and thus have no relevance
whatsoever to the present matter.” Docket 55 at 3. Defendants argue that
Johnson’s requests for the materials of how the building was built and
information regarding state/federal grants are not “proportional to the needs of
the case.” Id. (quoting Fed. R. Civ. P. 26(b)(1)).
Federal Rule of Civil Procedure 26(b)(1) provides that:
[p]arties may obtain discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense and proportional to
the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative
access 	to 	relevant 	information, 	the 	parties’ 	resources, 	the
importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.
After review of Docket 29, this court compels defendants to give Johnson
inspections and the conclusions of said inspections by any parties of the
Barracks facility regarding heat and ventilation from January 2017 until
present, the name of the owner and Company that constructed the Barracks,
the name of the owner and company that installed the ventilation and heating
units for the Barracks, and Johnson’s personal medical records from January
2017 until present.2 These requests are relevant to Johnson’s complaint. The
2 While § 1983 does not contain a specific statute of limitations, the Supreme
Court has instructed courts to apply the most analogous state law statute of
limitations to claims made under § 1983. Wilson v. Garcia, 471 U.S. 261, 266-
68 (1985). South Dakota adopted a specific statute that provides that civil
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rest of the information requested in this request is overly burdensome, outside
the statute of limitations, or not relevant to Johnson’s personal constitutional
claim.
Next, Johnson seeks to compel responses to the interrogatories he wrote
on July 17, 2020, and August 3, 2020. (Dockets 36, 42). The questions asked
may produce relevant evidence and defendants are ordered to respond to
Johnson’s questions. Defendants mention Johnson’s request for photographic
evidence (Docket 35) but do not specifically address why this request is
oppressive. Docket 55 at 2. Providing requested photographs to Johnson is not
overly burdensome to defendants and they do not directly refute this request.
Also, Johnson’s requests for photographs are directly related to his complaint
(ventilation/heat issues in the Barracks). See Docket 1 at 4. Johnson’s motion
to compel (Docket 52) is granted in part and denied in part.
Finally, Johnson moves for an “emergency preliminary injunction
concerning motion to compel . . . .” Docket 63 at 1. Johnson asks that this
court “act immediately on [his] motion to compel.” Docket 64. Because this
court has granted in part and denied in part his motion to compel, his motion
for “immediate movement” on the motion to compel is denied as moot.
rights actions must be brought within three years after the alleged
constitutional deprivation occurred or be barred. Bell v. Fowler, 99 F.3d 262,
266 (8th Cir. 1996); see also SDCL § 15-2-15.2. Johnson’s complaint was filed
on January 16, 2020, which makes records from January 16, 2017 until
present relevant and within the statute of limitations.
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IV. 	Johnson’s Motion to Strike
Johnson asks this court to strike affidavits filed by Brent Fluke and Rob
Caruana. Docket 58. He claims their affidavits are fraudulent. See Docket 60.
“The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). At this
time, the affidavits of Brent Fluke and Rob Caruana do not appear to fall under
a justification to strike. This court cannot comment on the merits of whether
affidavits are true or not, but only if they are admissible in evidence. See Fed. R.
Civ. P. 56(c)(2) & (4). Johnson’s motion to strike (Docket 58) is denied.
V. 	Johnson’s Motion for an Extension
Finally, Johnson asserts that his response in opposition to defendants’
motion to dismiss was untimely because it was mailed back to him after he
forgot to sign it. Docket 61. He asks that this court consider his response in
opposition as being timely filed (Docket 50). Because this court denied
defendants’ motion to dismiss, Johnson’s motion for an extension is denied as
moot.
Thus, it is ORDERED:
1. That defendants’ motion to dismiss (Docket 46) is denied.
2. That defendants’ motion for a protective order (Docket 48) is denied.
3. That Johnson’s motion to strike (Docket 58) is denied.
4. That Johnson’s motions for an extension and for an “emergency
preliminary injunction concerning motion to compel” (Dockets 61, 63)
are denied as moot.
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5. That Johnson’s motion to compel (Docket 52) is denied in part and
granted in part. Defendants must respond to the interrogatories in
Dockets 36, 42, respond/produce photographic evidence requested in
Docket 35, provide Johnson with records regarding inspections and
the conclusions of said inspections by any parties of the Barracks
facility regarding heat and ventilation from January 2017 until present,
provide the name of the owner and company that constructed the
Barracks, provide the name of the owner and company that installed
the ventilation and heating units for the Barracks, and provide
Johnson’s personal medical records from January 2017 until present.
All of the other requests not specifically granted in this order are
denied.
Dated: June 30, 2021
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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