Thares v. So. Dak. Department of Corrections et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
GARY L. THARES, 4:21-CV-04107-RAL
Plaintiff,
vs.
ORDER RESOLVING MULTIPLE
PENDING MOTIONS
KELLY WASKO, SECRETARY OF
CORRECTIONS IN HER OFFICIAL
CAPACITY;DR. MEL WALLINGA,BRENDA
MUDDER,
Defendants.
Gary Thares filed a prisoner pro se civil rights complaint under 42 U.S.C. § 1983 and the
Americans with Disabilities Act(ADA). Doc. 1; Doc. 11 at 1. On September 28,2021,this Court
issued an 1915A screening order dismissing Thares's claims in part, directing service in part, and
allowing Thares's claims for injunctive relief for alleged violations of his Eighth Amendment
rights, for injunctive relief for an alleged failure to award Earned Discharge Credits, and for
challenges to conditions of his confinement to survive screening. Doc. 11 at 12-13. Thares then
filed several motions for the Court to order medical procedures. Doc. 15, doctor's visits. Doc. 23,
and for an investigator. Doc. 24, which this Court denied as premature as his claim remains in
litigation and for failing to meet the standard for immediate injunctive relief. Doc. 27. Thares
also filed motions for an investigator. Doc. 28, for an investigation. Doc. 26, and for other
miscellaneous relief. Doc. 29; Doc. 30, which this Court also denied. Doc 31, because the motions
for the investigator largely repackaged his argument for counsel, which this Court had already
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ruled on. Doc. 11 at 12; Doc. 27 at 3; Doc. 31 at 3. This Court also found that the request for
miscellaneous relief was moot, as Thares's request for this Court to acknowledge certain
documents concerned documents that already appeared in the record. Doc. 31 at 3.
After those rulings, Thares has filed many more motions. These include motions for mental
health evaluations by a psychiatrist. Doc. 32; Doc. 50; Doc. 88; Doc. 89; investigations and
inspections. Doc. 42(withholding medications); Doc. 55 (same); Doc. 43 (medication line); Doc.
44 (mailing system); Doc. 53 (same); Doc. 45 (enforcement of medical orders); Doc. 55 (abuse);
Doc. 89(general prison oversight and Earned Discharge Credit Program); for this Court to issue a
do not resuscitate order (DNR), Doc. 33; Doc. 46; Doc. 54; for a decision regarding Earned
Discharge Credits(EDCs), Doc. 34; Doc. 39; Doc. 46; for an answer firom this Court, Doc. 39; for
this Court to punish the various instances of alleged abuse done in retaliation for filing this suit.
Doc. 33 (withholding medication); Doc. 34 (withholding legal mail); Doc. 61 (same); Doc. 36
(abuse); Doc. 37(same); Doc. 89 (requesting money damages and injunctive relief"on a variety
oftopics" and withholding ofall federal ftmding);for new shoes. Doc. 35; Doc.49;for an attorney.
Doc. 41; for a hearing. Doc. 39(motion for decision); Doc. 57(motion for court date); Doc. 60
(request for hearing); Doc. 61 (same); Doc. 62(same); Doc. 63 (motion for court date); Doc. 64
(same); Doc. 65 (same); Doc. 67 (request for hearing); Doc. 92(motion for jury trial); Doc. 93
(motion for an injunction ordering jury trial);' for production of documents. Doc. 47 (Thares's
medical records); Doc. 48 (disciplinary records, grievance reports, and grounds for punishment
after certain events); Doc. 49 (dates of medical restrictions); Doc. 51 (professional licenses and
oath of prison health care workers), for a § 1983 packet. Doc. 60; objecting to a motion to seal.
'Thares titles this motion "Motion Court to file injunction time for jury trial so I can be Released go to doc. hire
lawyer." Doc. 93. However, nowhere in the motion does Thares actually request injunctive or equitable relief. Id,
Thus, this will simply be treated as a motion for ajury trial rather than for an injunction.
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Doc. 91; and for the purposes of alerting this Court to alleged instances of discrimination. Doc. 33
(unavailability of classes for disabled persons); Doc. 35 (age and disability discrimination); Doc.
36 (same); Doc. 37 (same); Doc. 38 (same); to alleged instances of poor medical care and
treatment, Doc. 35; Doc. 36; Doc. 37; Doc. 38; Doc. 61; and to the impending mootness of his
claim, Doc. 36; Doc. 37; Doc. 38. Defendants also filed a motion requesting a motions deadline.
Doc. 40, to which Thares has not responded nor objected.
Thares has requested that this Court issue judgment on his behalf. Doc. 68. Thares also
has filed two motions for summary judgment,^ one on November 4, 2022, Doc. 69, to which
Defendants have not responded despite the deadline for filing a response being November 25,
2022,^ and one on November 28, 2022, Doc. 84. Defendants have filed their own motion for
summary judgment. Doc. 21, to which Thares has until January 31, 2023, to reply under the most
recent order of this Court, Doc. 90. Because briefing is not complete on the summary judgment
motions, this order will only cover the motions mentioned in the paragraph above, those being
documents 32 through 58,60 through 68, 88, 89, 91,92 and 93.
1. Motions to Order an Investigation or Inspection and Attorney
This Court has already denied Thares's motions to appoint counsel and motion to appoint
an investigator. Doc. 11 at 12; Doc. 27 at 3; Doc. 31 at 2-3. Thares has continued to file these
motions, as described briefly above. These additional motions largely reiterate his previous
^ While Thares has filed these motions, it should be noted that while they are titled as "motions for
summary judgment"they are not made in compliance with the federal or local rules, which require
an undisputed statement of material fact to accompany such motions. D.S.D. Civ. LR 56.1.
^ It appears that the Defendants have made several errors in this case. First, they failed to respond
to Thares's first motion for summary judgment in violation of Local Civil Rule of Practice 7.1,
and second,they referenced the incorrect inmate in their documents in support of their motion for
summary judgment. Doc. 72 at 4("McPeek has failed to provide sufficient facts"); Doc. 74 118
("Of the Informal Resolution Requests and Requests for Administrative Remedies submitted by
Travis McPeek").
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requests for assistance with his case, making copies, inadequate medical care. Doc. 42; Doc. 45;
Doc.55, but add requests for investigations ofgeneral abuse. Doc.55,ofthe mailing system within
the prison. Doc. 44; Doc. 53, and the EDC program. Doc. 89.
Thares's motions for investigations appear to repackage his previously denied motions for
counsel and an investigator in the hope that these new motions will receive a more favorable
disposition. However, as this Court has stated in its previous orders. Doc. 11 at 12; Doc. 27 at 3;
Doc. 31 at 3, the allegations Thares has raised are not complex, and Thares's motions demonstrate
that he can investigate and present these allegations himself. Further, despite Thares's complaint
that he has had difficulty obtaining paperwork for this lawsuit, Thares has provided administrative
records relevant to his claim. Doc. 29-1 at 9-15. Thares's motions to order an investigation. Doc.
42 (withholding medications); Doc. 55 (same); Doc. 43 (medication line); Doc. 44 (mailing
system); Doc.53(same); Doc.45(enforcement of medical orders); Doc. 55(abuse); Doc.89(EDC
Program), are denied. Similarly, for the same reasons discussed in this Coiut's screening order,
the motion for an attorney. Doc. 41, is denied.
II. Motions for Relief Relating to Medical Care or Treatment
It is premature to grant Thares's requests for medical relief because this Court has not yet
ruled on the merits of his § 1983 claim for Eighth Amendment violations; the briefing on motions
for stimmary judgment is ongonig. Although Thares expresses concern about his health, he has
not shown that he needs immediate care that Health Services at the Department of Corrections has
failed to provide. The limited record in this case does not presently justify this Court interjecting
itself into Thares's medical care by granting his motions for a mental health evaluation by a
psychiatrist or requiring the issuance of new shoes due to his poorly regulated diabetes. Indeed,
the documents provided by Thares show that at times he is choosing not to take his prescribed
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medications. Doc. 46("I Quite [sic] my medication As the Med nurse(As seen in grievance)
can short me,give me someone elses And they D.O.C. don't even investigate."). As such, Thares's
motions for mental health evaluations by a psychiatrist. Doc. 32; Doc. 50; Doc. 88; Doc. 89, and
for new shoes. Doc. 35; Doc. 49, are denied.
Thares has filed motions to have this Court issue a DNR order. Doc. 33; Doc. 46; Doc. 54.
Thares has failed to show any DOC policy or authority that requires him to get a federal court
order to obtain DNR status. Most DNR cases concerning inmates center on the failure of
penological policies to alert medical personnel to a DNR directive. Self v. Milvard. No. 11-
cv-00813-RBJ-CBS, 2012 WL 3704958, at *6-8 (D. Colo. July 31, 2012) (finding a
constitutionally mandated right to have a reasonable and effective method to ensure that an
inmate's DNR order would be followed); Schreiber v. Ludwick. No. 4:17-cv-00043-RP-CFB,
2017 WL 11560208, at *1 (S.D. Iowa May 1, 2017)(allowing a claim to go forward based on the
reasoning of the District of Colorado's decision in Self v. Milvardl. But see Snow v. Kentuckv
State Reformatorv. No. 3:17-CV-P521-CRS, 2019 WL 6499459, at *4(W.D. Ky. Dec. 3, 2019)
(declining to follow the District of Colorado's decision in Self). The Supreme Court ofthe United
States has stated that "a competent person has a constitutionally protected liberty interest in
refusing unwanted medical treatment[.]" Cruzan v. Dir.. Mo. Dep't of Health. 497 U.S. 261, 278
(1990).
Reviewing the document Thares provided in addition to his filings, it appears he has
submitted a Durable Power of Attorney for Health Care. Doc. 54-1. This document, by its own
terms,"DOES NOT SERVE AS A DO-NOT-RESUSCITATE ORDER." Id at 3. It appears that
Thares has just not filled out the correct form to get a DNR order in place and needs to follow the
directions provided in South Dakota Administrative Rules 44;05:06:01-:11. Even if an issue on a
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DNR order were within the claims this Court screened to allow, for the claim to be ripe Thares
would need to complete the proper form with the DOC and have some reasonable basis to believe
that the DNR order would be ignored. Thus, his motions to have this Court issue a DNR,Doc. 33;
Doc. 46; Doc. 54, are denied.
III. Motions for Production of Documents
Thares also requests copies of his medical records, Doc. 47, the dates of his medical
restrictions. Doc. 49, and his grievance reports. Doc. 48. However, examining the documents
attached to Defendants' motion for summary judgment, it appears that almost all those requested
records are attached as exhibits. Based on the existenee ofthese documents in the record, Thares's
motions for the production of these documents. Doc. 47, Doc. 49, are denied as moot, as is the
motion for grievance reports due to what now is of record. Doc. 48.
Thares also requested his disciplinary records and grounds for such punishment. Doc. 48,
and the licenses and oath of certain healthcare workers in the prison. Doc. 51, which were not
provided by Defendants. Under Federal Rule of Civil Procedure 26(d)(1), a party may not seek
discovery prior to a Rule 26(f)conference "except in a proceeding exempted from initial disclosure
under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order." Fed.
R. Civ. P. 26(d)(1). One such exception is "an action brought without an attorney by a person in
the custody ofthe United States, a state, or a state subdivision[.]" Fed. R. Civ. P. 26(a)(l)(B)(iv).
Rule 26 permits discovery of"any nonprivileged matter that is relevant to any party's claim
or defense and proportional to the needs of the case[.]" Fed. R. Civ. P. 26(b)(1). The scope of
discovery under Rule 26(b) is broad. Stock v. BNSF Rv. Co.. No. 4;14-CV-04074-RAL, 2015
U.S. Dist. Lexis 124063, at *4 (D.S.D. Sept. 17, 2015). The reason for the broad scope of
discovery is that "[mjutual knowledge of all the relevant facts gathered by both parties is essential
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to proper litigation." 8 Charles A. Wright & Arthur R. Miller, Federal Practiee & Proeedure §
2007(3d ed. 2017)(quoting Hickmanv. Taylor. 329 U.S.495,507-08(1947)). However,limiting
diseovery to claims and defenses means that "[a] plaintiff may not use a lawsuit as a tool for 'a
fishing expedition' to seek grounds for another lawsuit." Gates v. Black Hills Health Care Svs..
No. CIV 11-3013-RAL, 2013 WL 1683654, at *1 (D.S.D. Apr. 17, 2013)(quoting E.E.O.C. v.
CRST Van Expedited. Inc.. 679 F.3d 657, 675 (8th Cir. 2012)); see also Hofer v. Mack Trucks.
Inc.. 981 F.2d 377, 380 (8th Cir. 1992)(noting that the liberal scope of Rule 26 does not allow
parties to engage in "fishing expeditions" and mandating "[s]ome threshold showing ofrelevance"
for discovery requests). Proportionality is gauged by "considering the importance ofthe issues at
stake in the action, the amount in controversy, the parties' relative access to relevant information,
the parties' resources, the importance of the diseovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit." Id; s^ United States
V. One Assortment of93 NFA Regul. Weapons, 897 F.3d 961,966(8th Cir. 2018).
Thares's surviving claims regard the failure to award EDCs, deliberate indifference to his
medical needs, and conditions of confinement in violation of his Eighth Amendment rights and
Title II of the ADA. Doc. 11 at 12-13. In the surviving parts of his motions to compel, Thares
requests his disciplinary records and grounds for such punishment. Doc. 48, and the licenses and
oath of healthcare workers in the prison. Doc. 51. None of Thares's surviving claims regard the
improper discipline of him as an inmate; that was not the substance of the conditions-of-
confinement claim that survived initial screening. Instead, it seems that any disclosure of these
records, instead of helping Thares pursue his current claims, would instead be used to gather
information for a separate lawsuit entirely. As such, Thares's remaining request for his
disciplinary records and the reasons for such punishment, Doc. 48, is denied.
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On the other hand, Thares's informal request for the medical licenses and oath taken by
Dr. Mel Wallinga and Brenda Mudder, who are named defendants and the health care workers
treating him at the prison, has some relation to his claim of deliberate indifference to his serious
medical needs. Dr. Wallinga and Nurse Mudder themselves are in the best position to provide
their licensing information and, what, if any, oath they took to become a health care provider.'*
This request is sufficiently relevant and proportional in that the disclosure can be a simple written
response through defense counsel to Thares what medical licenses Dr. Wallinga and Nurse Mudder
hold and what, if any, oath they took to become a health care provider. Thus Thares's Motion for
the Production of the Medical Licenses and Oath of the medically trained defendants. Doc. 51, is
granted to the limited extent explained in this paragraph.
IV. Motions Requesting Action from the Court or Punishment be Issued
Thares has made several motions requesting a decision regarding EDCs,Doc. 34; Doc. 39;
Doc. 46; requesting an answer from the Court, Doc. 39, objecting to the sealing of documents.
Doc. 91, and for this Court to punish the various instances of alleged abuse done according to
Thares in retaliation for filing this suit. Doc. 33 (withholding medication); Doc. 34 (withholding
legal mail); Doc. 61 (same); Doc. 36 (abuse); Doc. 37 (same). Briefing on the motions for
summaryjudgment filed by both Thares and Defendants has not yet been completed. Any decision
on the merits would be premature. Therefore, Thares's Motions for a Decision, Doc. 34; Doc. 39;
Doc. 46, are denied. Until a decision on the merits is made, it is also premature to consider what
remedy, if any, should be fashioned. Therefore, Thares's Motions for Punishment, Doc. 33; Doc.
34; Doc. 36; Doc. 37; Doc.61,are denied. It appears that Thares misimderstood the previous order
of this Court sealing documents attached to Defendants's Memorandum in Support of Summary
'* This information, however, is of dubious relevance to Thares's claim.
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Judgment. Doc. 72; Doc. 83. Thares states that he believes the sealing of documents 72 through
81 is wrong, however that is not what this Court's order did. Doc. 83. Instead, it sealed documents
attached to document 72, including such personal information as Thares's medical records. Doc.
83. The purpose of sealing such information is not to protect it from Thares or from use in the this
lawsuit, but to protect Thares from identity theft or the possibility of unnecessary invasion of his
privacy through allowing public access to his medical records. Thus, any objection to the sealing
of those documents. Doc. 91, is overruled. Finally, Thares's Motion for an Answer from this
Court,Doc.39,is granted to the extent that the Court is issuing this order on those pending motions
ripe for decision.
V. Motions for a Hearing and Motions Deadline
This Court does not need to conduct a hearing to rule on the ripe pending motions. Once
briefing on the motions for summary judgment is complete, this Court will consider whether a
hearing would assist in ruling on those motions. As such, Thares's Motions for a Hearing, Doc.
39; Doc. 57; Doc. 60; Doc. 61; Doc. 62; Doc. 63; Doc. 64; Doc. 65; Doc. 67; Doc. 92; Doc. 93,
are denied.
Defendants also filed a motion requesting a motions deadline. Doc. 40, to which Thares
has not responded nor objected. However, Thares's requests for a decision and hearing indicate
he is eager to move his case forward. Therefore, Defendants' Motion for Deadline, Doc. 40, is
granted, and the deadline for all dispositive motions in this case will be January 31, 2023.
VI. Conclusion
For the reasons discussed, it is hereby
ORDERED that Thares's Motions for an Inspection, Doc. 43; Doc. 53, are denied. It is
further
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ORDERED that Thares's Motions for an Investigation, Doc. 42; Doc. 44; Doc. 45; Doc. 55;
Doc. 89, arc denied. It is further
ORDERED that Thares's Motions for New Shoes, Doc. 35; Doc. 49, are denied. It is
further
ORDERED that Thares's Motions for Mental Health Evaluations by a Psychiatrist, Doc.
32; Doc. 50; Doc. 88, are denied. It is further
ORDERED that Thares's Motions for the Issuance of a DNR, Doc. 33; Doc. 46; Doc. 54,
are denied. It is further
ORDERED that Thares's Motions for the Production of Documents, Doc. 47; Doc. 48;
Doc. 49, are denied, but his Motion for Production, Doc. 51, is granted to the extent that
Defendants are ordered to provide information on Dr. Wallinga and Nurse Mudder's medical
licenses and what oaths, if any, they took to become health care providers within 21 days of this
order, which may be provided by way of a letter from defense counsel to Thares. It is further
ORDERED that Thares's Motions Requesting a Decision, Doc. 34; Doc. 39; Doc. 46, are
denied. It is further
ORDERED that Thares's Motion for Answer from the Court, Doc. 39, is granted to the
extent this Court now is ruling on the pending motions that have been fully briefed. It is further
ORDERED that Thares's Motions Requesting Punishment, Doc. 33; Doc. 34; Doc. 61;
Doc. 36; Doc. 37, are denied. It is further
ORDERED that Thares's Objection to Sealing Documents, Doc. 91, is overruled. It is
further
ORDERED that Thares's Motion for an Attorney, Doc. 41, is denied. It is further
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ORDERED that Thares's Motions a Hearing or Court Date, Doe. 39; Doc. 57; Doc. 60;
Doc. 61; Doc. 62; Doc. 63; Doc. 64; Doc. 65; Doc. 67; Doc. 92; Doc. 93, arc denied at this time.
This Court will notify the parties if a motions hearing or trial is appropriate to schedule. It is
further
ORDERED that Thares's Motion for § 1983 packet. Doc. 60, is granted and the Clerk of
Court is directed to mail a § 1983 packet to Thares. It is finally
ORDERED that Defendants' Motion for a Motions Deadline, Doe.40,is granted. As such,
all dispositive motions shall be filed on or before January 31, 2023.
DATED this day of January, 2023.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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