Christians v. Young et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MARK CHRISTIANS,
Plaintiff,
vs.
DARRIN YOUNG, CHIEF WARDEN SDDOC
PRISONS, INDIVIDUAL AND OFFICIAL
CAPACITY; TROY PONTO, DEPUTY
WARDEN SDSP, INDIVIDUAL AND
OFFICIAL CAPACITY; JESSICA COOK,
ASSOCIATE WARDEN SDSP/JAMESON,
INDIVIDUAL AND OFFICIAL CAPACITY;
BRENT FLUKE, WARDEN MDSP,
INDIVIDUAL AND OFFICIAL CAPACITY;
REBECCA SCHIEFFER, ASSOCIATE
WARDEN MDSP, INDIVIDUAL AND
OFFICIAL CAPACITY; ALEX REYES,
ASSOCIATE WARDEN MDSP, INDIVIDUAL
AND OFFICIAL CAPACITY; CODY
HANSON, UNIT MANAGER JAMESON,
INDIVIDUAL AND OFFICIAL CAPACITY;
SETH HUGHES, UNIT MANAGER
JAMESON, INDIVIDUAL AND OFFICIAL
CAPACITY; NANCY CHRISTENSEN, UNIT
MANGAER MDSP, INDIVIDUAL AND
OFFICIAL CAPACITY; LT. MADDOX,
LIEUTENANT MDSP, INDIVIDUAL AND
OFFICIAL CAPACITY; D. EKEREN, UNIT
COORDINATOR JAMESON, INDIVIDUAL
AND OFFICIAL CAPACITY; DEB EILERS,
UNIT COORDINATOR MDSP, INDIVIDUAL
AND OFFICIAL CAPACITY; LAURIE
STRATMAN, UNIT COORDINATOR MDSP,
INDIVIDUAL AND OFFICIAL CAPACITY;
JULIE STEVENS, CASE MANAGER MDSP,
INDIVIDUAL AND OFFICIAL CAPACITY;
JARED, CBM/SUMMIT SITE MANAGER
MDSP, INDIVIDUAL AND OFFICIAL
CAPACITY; KELLY, CBM/SUMMIT FOOD
SERVICES WORKER MDSP, INDIVIDUAL
4:20-CV-04083-LLP
ORDER GRANTING PLAINTIFF’S
MOTION TO AMEND AND DENYING
MOTION TO COMPEL
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AND OFFICIAL CAPACITY; MARLIN C.
SEJONHAJR., SUMMIT PRESIDENT &
CEO, INDIVIDUAL AND OFFICIAL
CAPACITY; JOHN TRIEWEILER, SUMMIT
DISTRICT MANAGER, INDIVIDUAL AND
OFFICIAL CAPACITY; KEVIN
TRIERWEILER, SITE MANAGER
JAMESON, INDIVIDUAL AND OFFICIAL
CAPACITY; PAMELA THOMAS,
EXECUTIVE CHEF, SUMMIT
CORRECTIONS, INDIVIDUAL AND
OFFICIAL CAPACITY; NAOMI
MCLAUGHLIN, SUMMIT DIRECTOR OF
MARKETING, INDIVIDUAL AND OFFICIAL
CAPACITY; JEFF GREEN, SUMMIT
BUSINESS DEVELOPMENT DIRECTOR,
INDIVIDUAL AND OFFICIAL CAPACITY;
UNNAMED SUMMIT LICENSED
DIETITIAN(S), INDIVIDUAL AND
OFFICIAL CAPACITY; DIETARY
ASSISTANTS, INDIVIDUAL AND OFFICIAL
CAPACITY; DIRECTORS OF OPERATIONS,
INDIVIDUAL AND OFFICIAL CAPACITY;
DISTRICT MANAGERS, INDIVIDUAL AND
OFFICIAL CAPACITY; FOOD SERVICE
DIRECTORS, INDIVIDUAL AND OFFICIAL
CAPACITY; ASSISTANT FOOD SERVICE
DIRECTORS, INDIVIDUAL AND OFFICIAL
CAPACITY; FOOD SERVICE WORKERS,
INDIVIDUAL AND OFFICIAL CAPACITY;
JUSTIN BARTHEL, DIRECTOR OF
DIETARY SUMMIT, INDIVIDUAL AND
OFFICIAL CAPACITY; AND SHANE
SEJNOHA, SUMMIT VP OF OPERATIONS,
INDIVIDUAL AND OFFICIAL CAPACITY;
MIKE LEIDHOLT, SECRETARY OF THE
DEPARTMENT OF CORRECTIONS, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
Defendants.
Plaintiff, Mark Christians, filed a pro se lawsuit under 42 U.S.C. § 1983, and now moves
to amend and compel. Docs. 40, 42. In his motion to amend, Christians asks that Denny
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Kaemingk be replaced with Mike Leidholt. Doc. 40. Defendants have not filed a response in
opposition. The record reflects that Christians’s Amended Complaint was served on January 13-
14, 2021. Docs. 31, 32.
Under Federal Rule of Civil Procedure 15(a)(1)(A), “[a] party may amend its pleading
once as a matter of course within 21 days after serving it[.]” Under the Rule 15, a party may
amend a pleading once as a matter of right within 21 days after serving the pleading. Fed. R. Civ.
P. 15(a)(1). Thereafter, the party may amend only with the written consent of the opposing party
or the court’s permission. Fed. R. Civ. P. 15(a)(2). Christians moved to amend on February 4,
2021. Doc. 40. Because his motion to amend was filed 21 days after his Amended Complaint
was served on January 13, 2021, and 22 days after his Amended Complaint was served on
January 14), his motion is in part untimely. Christians must have leave from the Court to amend.
Fed. R. Civ. P. 15(a)(2). “The court should freely give leave [to amend] when justice so
requires.” Id. Even under this generous standard, a court may deny a request to amend for “
‘compelling reasons such as undue delay, bad faith, or dilatory motive, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or
futility of the amendment.’ ” Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir.
2008) (quoting Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065
(8th Cir. 2005)).
“A liberal amendment policy, however, is in no way an absolute right to amend. Where an
amendment would likely result in the burdens of additional discovery and delay to the proceedings,
a court usually does not abuse its discretion in denying leave to amend.” Popp Telcom v. Am.
Sharecom, Inc., 210 F.3d 928, 943 (8th Cir. 2000) (internal citation omitted). “When late tendered
amendments involve new theories of recovery and impose additional discovery requirements,
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appellate courts are less likely to hold a district court abused its discretion.” Popoalii v. Corr. Med.
Servs., 512 F.3d 488, 497 (8th Cir. 2008). Further, a “[d]enial of a motion for leave to amend on
the basis of futility means the district court has reached the legal conclusion that the amended
complaint could not withstand a motion to dismiss under Rule 12(b)(6).” Moody v. Vozel, 771 F.3d
1093, 1095 (8th Cir. 2014) (internal quotation omitted). Here, Christians’s motion to amend does
not appear to have been made with dilatory motive and it does not create an undue delay or
additional discovery requirements. Thus, his motion to amend, Doc. 40, is granted and Mike
Leidholt is substituted for Denny Kaemingk. However, this Court notes that Christians has not
returned a summons and USM-285 form for Denny Kaemingk or Mike Leidholt.
Next, Christians moves to compel the Attorney General for Lieutenant Maddox’s first
name so he can execute service. Christians does not assert that he has tried to serve his Amended
Complaint or that there was an issue due to not having Lieutenant Maddox’s first name. After
review of the record, Christians has not tried to serve his Amended Complaint on Lieutenant
Maddox. Christians should try to serve Lieutenant Maddox with the information that he has
before he seeks assistance from the Court to compel another party do act.
Accordingly, it is ORDERED:
1. That Christians’s motion to amend, Doc. 40, is granted.
2. That Christians’s motion to compel, Doc. 42, is denied.
3. That the Clerk shall send blank summons forms and Marshal Service Form (Form
USM-285) to Christians so that he may cause the complaint to be served upon
Lieutenant Maddox and Mike Leidholt.
4. Christians shall complete and send the Clerk of Courts a separate summons and
USM-285 form for Maddox and Leidholt. Upon receipt of the completed summons and
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USM-285 forms, the Clerk of Court will issue the summons. If the completed
summons and USM-285 form are not submitted as directed, the complaint may be
dismissed.
5. The United States Marshal Service shall serve the completed summonses, together
with a copy of the Amended Complaint (Doc. 26), this Court’s Screening Order
(Doc. 27), and this order, upon the defendants.
6. Defendants will serve and file an answer or responsive pleading to the amended
complaint on or before 21 days following the date of service or 60 days if the
defendants fall under Fed. R. Civ. P. 12(a)(2) or (3).
7. Christians will keep the court informed of his current address at all times. All parties
are bound by the Federal Rules of Civil Procedure and by the court’s Local Rules
while this case is pending.
BY THE COURT:
________________________________
Lawrence L. Piersol
United States District Judge
DATED March , 2021.
ATTEST:
MATTHEW W. THELEN, CLERK
________________________
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