Cody v. Clark et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
WILLIAM CODY,
Plaintiff,
vs.
DOUG CLARK, in his individual
capacity; DANIEL SULLIVAN, in his
individual and official capacity;
JENNIFER DREISKE, in her individual
capacity; BRITTNEY LENGKEEK, in her
individual and official capacity; SAM
BADURE, in his individual and official
capacity; JEFFREY ELTON, in his
individual and official capacity;
JENNIFER FENOLIO, in her individual
and official capacity; TROY PONTO, in
his individual and official capacity; TIM
REISCH, in his individual capacity;
DARIN YOUNG, in his individual
capacity; JOHN BENTING, in his
individual and official capacity; MIKE
LEIDHOLT, in his individual capacity;
NYLA SPRINKEL, in her individual and
official capacity; JOHN/JANE DOES, in
their individual and official capacities;
MARY CARPENTER, in her individual
and official capacity; KELLIE WASKO,
in her individual and official capacity,
CHAD ROTERT, in his individual and
official capacity,
Defendants.
4:22-CV-04010-KES
ORDER GRANTING PLAINTIFF’S
MOTION TO RECONSIDER IN PART,
GRANTING DEFENDANTS’ MOTION
FOR RELIEF FROM ORDER IN PART,
AND GRANTING PLAINTIFF’S
MOTIONS FOR ASSISTED SERVICE
Plaintiff, William Cody, an inmate at the South Dakota State
Penitentiary, filed a pro se civil rights lawsuit under 42 U.S.C. § 1983. Docket
1. This court screened Cody’s complaint under 28 U.S.C. § 1915A, dismissing
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it in part and directing service on defendants in part. Docket 14. Cody now
moves for partial reconsideration of that screening order, seeking clarification
of one claim that survived screening and reconsideration of another claim that
this court dismissed at the screening stage. Docket 17.
Cody also filed a motion asking this court to require defendants provide
him with cross-reference tables for the authorities cited in defendants’ motion
for summary judgment because that motion cites to Westlaw and Cody only
has access to LEXIS/NEXIS. Docket 60. Cody also sought cross-reference
tables for page numbers in docket entries cited in defendants’ briefs. Id. This
court granted Cody’s motion. Docket 61. Defendants now move for relief from
the order granting Cody’s motion. Docket 62.
Cody has also filed two motions for assisted service. Dockets 19, 25.
Cody seeks assistance serving four defendants who are no longer employed
with the DOC and Dr. Mary Carpenter, the Medical Director for Correctional
Health Care. See Docket 19 at 1; Docket 25 at 1; Docket 37 ¶ 2.
I. 	Cody’s Motion for Reconsideration
Cody’s motion for reconsideration asks this court to clarify or reconsider
two claims at the screening stage. Docket 18 at 1. First, he asks this court to
clarify its order regarding his Fifth Amendment Takings Clause claim regarding
economic impact payments. Id. at 3-4. Second, he asks this court to reconsider
its dismissal of his Eighth Amendment conditions of confinement claim
regarding prison noise that denied him the ability to sleep. Id. at 5-11.
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Cody seeks relief under Federal Rules of Civil Procedure 52(b), 59(e),
60(a), 60(b)(2), and 60(b)(6). Id. at 2. The Eighth Circuit Court of Appeals has
traditionally “instructed courts to consider [motions for reconsideration] either
under Rule 59(e) or Rule 60(b).” Moberly v. Midcontinent Commc’n, 2010 WL
11681663, at *1 (D.S.D. Aug. 2, 2010) (citation omitted). Rule 60(b) authorizes
a court to relieve a party from a final judgment or order under the following
circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered 	evidence 	that, 	with 	reasonable 	diligence, could not
have been discovered in time to move for a new trial under Rule
59(b); (3) fraud (whether previously called intrinsic or 	extrinsic),
misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged; 	it 	is based 	on an earlier judgment 	that has been
reversed 	or 	vacated; 	or 	applying 	it 	prospectively 	is 	no 	longer
equitable; or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Rule 60(b)(2) does not apply here because while Cody does offer further
argument as to his claim, he does not present evidence that could not have
been discovered and presented in his complaint and prior supplements. See
Docket 18 at 3-11. To obtain relief under Rule 60(b)(6), a party must show that
“exceptional circumstances have denied the moving party a full and fair
opportunity to litigate his claim and have prevented the moving party from
receiving adequate redress.” Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir.
2005) (citation omitted). Here, an improper dismissal at the screening stage
would deny Cody a full and fair opportunity to litigate the claims in question.
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Thus, this court will consider Cody’s motion for reconsideration under Rule
60(b)(6).
A. 	Takings Clause Claim
In his initial complaint, Cody alleged that defendants’ garnishment of his
economic impact payments violated the Takings Clause of the Fifth
Amendment. Docket 1 ¶ 168. The Takings Clause is violated when private
property is taken for public use without just compensation. U.S. Const. amend
V. “[C]onsideration other than cash . . . may be counted in the determination of
just compensation.” Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 151
(1974) (citing Bauman v. Ross, 167 U.S. 548, 584 (1897)).
This court found that Cody’s Takings Clause claim survived § 1915A
screening but clarified that a taking would only have occurred if the garnished
payments did not reduce Cody’s debt owed to the South Dakota Department of
Corrections (SD DOC). Docket 14 at 35-37. Specifically, this court cited Hayes
v. Graves, 2022 WL 822881, 2022 U.S. Dist. LEXIS 47001 (E.D. Ark. Mar. 16,
2002), an Eastern District of Arkansas case that considered this issue. In
Hayes, the court found that the Takings Clause is violated by the garnishment
of economic impact payments when inmates are not provided compensation for
the garnished funds. See 2022 WL 822881, at *5-6, 2022 U.S. Dist. LEXIS
47001, at *9-11. Thus, the Hayes court concluded that “prisoners are provided
with a ‘dollar-for-dollar benefit’ when their stimulus funds are used to pay off
their existing court fines, fees, costs, or restitution.” 2022 WL 822881, at *5,
2022 U.S. Dist. LEXIS 47001, at *10-11.
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This court ruled that the principle stated in Hayes also applies when
economic impact payment funds “are put towards debts owed to the
penitentiary, because the prisoner receives a reduction in debt owed.” Docket
14 at 36 (citation omitted). Thus, to the extent that Cody’s economic impact
payments were garnished to pay down existing debt, he received a benefit, and
the Takings Clause was not violated. See id. at 36-37. Now, Cody argues that
because the terms “debts owed” and “debt owed” do not appear in Hayes and
because the words “debt” and “debts” only appear in reference to an Arkansas
state statute, garnished funds put towards debt owed to the penitentiary could
still violate the Takings Clause. Docket 18 at 4. Cody further argues that Hayes
stands for the proposition that “[economic impact payments] may only be used
to pay existing court fines, fees, costs, and court ordered restitution.” Id.
(cleaned up).
In finding Hayes instructive, this court cited with approval the principle
that “prisoners receive just compensation when stimulus funds are put
towards existing court fines, fees, costs, or restitution.” Docket 14 at 36
(citation omitted). But this is not an exhaustive list, and the Takings Clause is
only violated when an inmate’s funds are garnished “without just
compensation.” See U.S. Const. amend. V. A dollar-for-dollar reduction in debt
owed to the penitentiary is just compensation, similar to a dollar-for-dollar
reduction in court fines, fees, costs, or restitution owed. The key question is
whether the inmate receives a benefit in the reduction of an amount owed that
is equal to the quantity of funds garnished. Thus, to the extent that Cody asks
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this court to reconsider its ruling on his Takings Clause claim, that motion
(Docket 17) is denied.
B. 	Eighth Amendment Conditions of Confinement Claim
In supplements to his initial complaint, Cody alleged that defendants
Sam Badure, Chad Rotert, and Dan Sullivan violated his Eighth Amendment
right to be free from cruel and unusual punishment by being deliberately
indifferent to the sleep deprivation caused by the volume of other inmates’
televisions. See Docket 8-1 ¶ 30; Docket 12-1 ¶¶ 8-11. This court dismissed
Cody’s claim for deliberate indifference, finding that noisy televisions did not
constitute inhumane conditions. Docket 14 at 43. Further, this court found
that defendants were not deliberately indifferent because Badure told Cody to
speak with an officer when this issue arose, Rotert assured Cody that the noise
was not escalating and that he would discuss it with Badure, and Sullivan
informed Cody that he had delegated responsibility for this issue to Rotert. Id.
“[T]he Constitution ‘does not mandate comfortable prisons’; it prohibits
‘inhumane ones.’ ” Williams v. Delo, 49 F.3d 442, 445 (8th Cir. 1995) (quoting
Farmer v. Brennan, 511 U.S. 825, 832 (1994)). The United States Supreme
Court has clarified that only “extreme deprivations” that deny “the minimal
civilized measure of life’s necessities are sufficiently grave to form the basis of
an Eighth Amendment violation.” Hudson v. McMillian, 503 U.S. 1, 9 (1992)
(internal quotation omitted). The Supreme Court has listed as basic human
needs “food, clothing, shelter, medical care, and reasonable safety[.]” Helling v.
McKinney, 509 U.S. 25, 32 (1993) (citation omitted).
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In order to prevail on an Eighth Amendment conditions of confinement
claim, a prisoner must prove that (1) objectively, the deprivation was
sufficiently serious to deprive him of the minimal civilized measures of life's
necessities or to constitute a substantial risk of serious harm to his health or
safety; and (2) subjectively, the defendants were deliberately indifferent to
inmate health or safety. Simmons v. Cook, 154 F.3d 805, 807 (8th Cir. 1998)
(citing Farmer, 511 U.S. at 834). An Eighth Amendment challenge to conditions
of confinement must examine the totality of the circumstances. Villanueva v.
George, 659 F.2d 851, 854 (8th Cir. 1981) (en banc). Even if no single condition
would be unconstitutional in itself, the cumulative effect of prison conditions
may subject inmates to cruel and unusual punishment. See id.; see also Tyler
v. Black, 865 F.2d 181, 183 (8th Cir. 1989).
Cody argues that the noisy televisions are more than a “discomfort” and
that “[s]leep deprivation has long been recognized as an effective tool of
torture[.]” Docket 18 at 6 (first alteration in original) (quoting Gardner v.
Andrews, 2018 U.S. Dist. LEXIS 85668, at *6 (E.D. Ark. Apr. 26, 2018)). He
cites several cases for the proposition that an Eighth Amendment claim can be
brought for excessive noise in a prison setting, including a D.C. Circuit Court
of Appeals case that discussed “excessive noise from unregulated television
volume[.]” Id. (citing Inmates of Occoquan v. Barry, 844 F.2d 828, 848 (D.C. Cir.
1988)). He further argues that “sleep undoubtedly counts as one of life’s basic
needs[.]” Id. at 7 (quoting Harper v. Showers, 174 F.3d 716, 720 (5th Cir.
1999)). Cody also correctly notes that the severity of a deprivation depends not
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only on the conditions in question but also the length of time that an inmate
must endure those conditions. Id. at 7-8. He alleges that the excessive noise
began in January 2022 and continues today. Id. at 8.
In Inmates of Occoquan, the D.C. Circuit ultimately found that the
district court exceeded its authority in finding that “a variety of deficiencies . . .
warranted a global remedy . . . , rather than a remedy mandating specific
corrections of specific problems[.]” 844 F.2d at 841. Thus, the D.C. Circuit
reversed the lower court’s imposition of a population cap on the prison because
overcrowding only “exacerbated the effects of numerous deficiencies, which
taken together, violated the Constitution.” Id. at 842. In doing so, the D.C.
Circuit disagreed with the lower court’s choice of remedy but did not challenge
its finding that “sustained excessive noise levels increase stress levels and pose
a significant risk to inmates’ physical and mental health.” Id. at 830 (quoting
Inmates of Occoquan v. Barry, 650 F. Supp. 619, 621 (D.D.C. 1986), rev’d, 844
F.2d 828).
This court agrees with Cody that sustained excessive noise and sleep
deprivation can violate the Eighth Amendment, especially given the fact that
the noise in question has lasted for months. Thus, because Cody has alleged
facts sufficient to show that he has been and continues to be deprived of the
minimal civilized measures of life’s necessities as required by Simmons, he
must also show that defendants have been deliberately indifferent to that
deprivation. See 154 F.3d at 807 (citing Farmer, 511 U.S. at 834).
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Cody argues that Badure, Rotert, and Sullivan were aware of the
excessive noise because he sent letters and informed them in person of the
noise in January and February of 2022. Docket 18 at 9. He claims that officers
in his hall refused to do anything about the noise even though Badure told him
to tell an officer about the noise when it occurred. Id. at 9-10. He also claims
that although Rotert told him that he might be able to resolve the noise issues,
they were never resolved. Id. at 10.
Cody alleges that Badure, Rotert, and Sullivan were aware of the
excessive noise issue. Id. at 9-11. He further alleges that these defendants had
and continue to have the authority to address the issue. See id. While all three
appear to have at least informed Cody that the issue was being addressed,
Cody alleges that the noise continues and that no actions to resolve the noise
have been taken. See id.; see also Gray v. Hardy, 826 F.3d 1000, 1009 (7th Cir.
2016) (“Knowingly persisting in an approach that does not make a dent in the
problem is evidence from which a jury could infer deliberate indifference.”). At
the screening stage, this court cannot say with certainty that the actions of the
three defendants do not constitute deliberate indifference. Thus, Cody’s motion
for reconsideration regarding his Eighth Amendment conditions of confinement
claim for excessive noise (Docket 17) is granted, and this claim against Badure,
Rotert,1 and Sullivan in their individual capacities and in their official
capacities for injunctive relief survives § 1915A screening.
1 The court notes that Rotert was dismissed from this lawsuit in the previous
screening order and has not yet been served. See Docket 14 at 46-50.
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II. 	Defendants’ Motion for Relief from Order
Defendants move for relief from this court’s order to provide Cody with
cross-references between Westlaw and LEXIS/NEXIS and for cited docket
pages. Docket 62. Defendants seek relief under Federal Rule of Civil Procedure
60(b)(6). Id. at 1-3. Again, relief is warranted under Rule 60(b)(6) when
“exceptional circumstances have denied the moving party a full and fair
opportunity to litigate his claim and have prevented the moving party from
receiving adequate redress.” Harley, 413 F.3d at 871 (citation omitted).
Defendants correctly note that Cody’s motion was granted before defendants
were able to respond. See Docket 62 at 3. Thus, this court will consider
defendants’ arguments in opposition to Cody’s motion.
Defendants first argue that Cody does not have the right to
LEXIS/NEXIS cross-references because a lack of access to these citations does
not violate his First Amendment right of access to the courts. Id. at 3-8. They
argue that inconvenience alone does not violate this right and that Cody must
show that he was “prevented . . . from litigating [his] claim[s].” Id. at 7 (quoting
Duwenhoegger v. King, 2012 WL 1516865, at *6, 2012 U.S. Dist. LEXIS 63333,
at *20 (D. Minn. Feb. 13, 2012)). Defendants further argue that “Cody has not
and cannot make any such showing.” Id. at 8.
Defendants state the standard for a 42 U.S.C. § 1983 claim for denial of
an inmate’s First Amendment right to access the courts. If Cody were bringing
such a claim, defendants would be correct to make such an argument in a
motion to dismiss or a motion for summary judgment. See Johnson v. Missouri,
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142 F.3d 1087, 1089 (8th Cir. 1998) (citing Lewis v. Casey, 518 U.S. 343, 353
(1996)). But Cody’s complaint did not state a claim for violation of his First
Amendment right to access the courts, and his motion requesting cross-
references did not seek to amend his complaint to add such a claim. See
Dockets 1, 60. Instead, he has filed a motion seeking “a fair and equitable
opportunity to rebut or otherwise respond to Defendants’ summary judgment
pleadings[.]” Docket 60 at 2. Whether Cody has a constitutional right to be
provided cross-references is a different question than whether this court has
the discretion to grant Cody’s motion.
Defendants cite Cox v. LNU, a District of Kansas case, for the proposition
that the right to access the courts “does not ‘allow inmates the right to select
the method by which access will be provided.’ ” Docket 62 at 5 (quoting 924 F.
Supp. 2d 1269, 1273 (D. Kan 2013)). Defendants argue that the District of
Kansas denied the inmate plaintiff’s motion for copies of caselaw cited by the
opposing party because there was “no generalized right to case law cited by
opponents” and because the plaintiff was “seek[ing] an ability to litigate his
case that goes beyond his right to access the courts.” Id. at 6-7 (quoting Cox,
924 F. Supp. 2d at 1276, 1279).
The holding in Cox is more complicated and more sympathetic to Cody
than defendants recognize. See 924 F. Supp. 2d at 1273-79. In Cox, the
District of Kansas considered the plaintiff’s motion under both a local rule that
governed the provision of unpublished decisions cited in briefs to opposing
parties and under “the general authority to regulate practice pursuant to
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[Federal Rule of Civil Procedure] 83(b).” Id. at 1274-75. Rule 83(b) allows for
regulation of practice “in any manner consistent with federal law, rules adopted
under 28 U.S.C. §§ 2072 and 2075, and the district's local rules.” The court
agreed with defendants that plaintiff’s First Amendment right to access the
courts was not violated because he had no generalized right to caselaw but
found that this did not resolve the motion because of the authority granted by
Rule 83(b) and the relevant local rule. Id. at 1276.
After denying plaintiff’s motion for case law under the local rule because
the plaintiff failed to identify specific unpublished decisions to which he lacked
access and because defendants had made efforts to make decisions available,
the court considered plaintiff’s motion under Rule 83(b). See id. at 1277-78.
The court began by noting that because “no federal or local rule, including [the
District of Kansas local rule discussed above], address providing copies of
published decisions to an adversary, the Court may exercise its discretion
under Fed. R. Civ. P. 83(b) to regulate such production.” Id. at 1278. In fact,
the court noted that a different judge had previously granted a similar motion
brought by the same plaintiff. Id. The court found no need to compel provision
of case law to the plaintiff because defendants provided more information
regarding plaintiff’s access to caselaw than they did in response to the previous
motion. Id. Ultimately, the court found that the plaintiff had “a reasonable
means to obtain the published case law that he desire[d].” Id.
This court finds Cox instructive and finds it has the authority to compel
defendants to provide caselaw to Cody under Rule 83(b), especially where Cody
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has no other means to access the caselaw in question. See id. Defendants
argue that “Cody has more than ‘reasonable means’ to access the cases cited”
because he can search for these cases on LEXIS/NEXIS and that any
difficulties faced by this process are merely “minor inconvenience[s.]” Docket
62 at 7. But this court’s authority to regulate practice under Rule 83(b) is
limited by federal law and the local rules, and defendants do not identify a
federal law or local rule violated by this court’s order. See id. at 3-8.
Defendants next argue that they have no means to access LEXIS/NEXIS
citations because they only have access to Westlaw. Id. at 8. Defendants’
counsel states that “[s]ince Westlaw is the service provider for the Attorney
General’s Office, counsel does not have access to the Lexis-Nexis cites now
requested by Cody. Defendants cannot provide what they do not have.” Id. The
Attorney General’s Office and the South Dakota State Penitentiary are both
arms of the state of South Dakota. Although this court recognizes that the
current legal database contracts in question may not be compatible, this court
is skeptical of a practice where one arm of the state provides inmates access to
one database, another arm of the state provides defendants’ counsel access to
another database, and then that counsel argues that the resultant burdens in
accessing caselaw, created by the state’s choice of legal databases, are to be
borne by inmates. But in stating that they “cannot provide what they do not
have[,]” defendants identify a larger problem. See id.
Although many cases are available on Westlaw and LEXIS/NEXIS, many
cases are only accessible on one of the two databases. For example, defendants’
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brief on this issue cites Waterman v. Tippie, a District of Kansas case. Id. at 5
(citing 2022 WL 17177369, at *2 (D. Kan. Nov. 23, 2022)). Although
LEXIS/NEXIS contains orders from Waterman, the November 23, 2022,
memorandum and order cited by defendants appears to be exclusive to
Westlaw. Defendants cannot provide LEXIS/NEXIS citations that do not exist.
This court believes Cody should have some means to access cases cited
by defendants. At the same time, this court recognizes that the work of figuring
out which cases Cody can or cannot access should be his to do. Thus, Cody
must provide a list of cases cited in defendants’ briefs that he cannot access,
and defendants must provide to Cody either LEXIS/NEXIS citations, along with
cross-references for individual page citations, or paper copies of these cases
that include Westlaw pagination.
Defendants also seek relief from this court’s order that they provide
cross-references for docket entry pages. See id. at 3 n.1. Defendants’ briefs cite
to global docket page numbers, rather than the page numbers for individual
docket entries. For example, in their memorandum in support of their motion
for summary judgment, defendants cite to the eighteenth page of this court’s
screening order as “Doc. 14, p. 320” rather than “Doc. 14, p. 18” or a similar
format. See Docket 34 at 3 n.1.2 Defendants also ask that, if they are not fully
granted relief from this court’s order, that this court “direct Cody to provide
2 Aside from any issues this practice presents for Cody, the court finds
defendants' citations to the record to be unnecessarily confusing and would
appreciate a more straightforward citation method, such as citations to
individual docket entry pages, moving forward.
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counsel with the Docket page numbers to which he does not have access.”
Docket 62 at 3 n.1 (cleaned up).
This court believes it would be easier for defendants to provide cross-
references for page ranges for cited documents already entered into the docket.
For example, for Docket 14 cited in defendants’ memorandum in support of
their motion for summary judgment and discussed above, rather than provide
page numbers for every citation to this document in the memorandum,
defendants can simply state that pages 303 to 352 correspond with pages 1 to
50 of the document. Defendants shall do this for every document cited in their
memorandum in support of their motion for summary judgment (Docket 34)
and their memorandum in support of their motion for a protective order
(Docket 54) that was not contemporaneously attached to those memoranda.3
Thus, defendants’ motion for relief from this court’s previous order
(Docket 62) is granted to the extent described above. Cody must identify a list
of cases cited in defendants’ briefs that he cannot access. Then, defendants
must provide to Cody either LEXIS/NEXIS cross-references or paper copies of
Westlaw cases and cross-references for individual docket entry page numbers
for cited docket entries not contemporaneously attached, rather than cross-
references for each individual docket entry citation, for their memorandum in
3 Defendants’ memorandum in support of their motion for summary judgment
cites frequently to documents that were filed as attachments to that
memorandum by individual page or paragraph numbers. For instance,
citations to Dr. Carpenter’s affidavit are cited as “Carpenter Affidavit” followed
by the paragraph number. See, e.g., Docket 34 at 9. Because these citations
provide more direction than global docket page numbers, they do not need to
be cross-referenced.
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support of their motion for summary judgment (Docket 34) and their
memorandum in support of their motion for protective order (Docket 54) by
February 6, 2023. Further, defendants must continue to follow these
instructions in all future filings in this case. Beyond these modifications,
defendants’ motion for relief from order is denied.
III. 	Cody’s Motions for Assisted Service
Cody has filed two motions for assisted service. Dockets 19, 25. In his
first motion, he asks for assistance serving Jennifer Dreiske, Tim Reisch, Darin
Young, and Mike Leidholt, all of whom are no longer employed by the SD DOC.
Docket 19 at 1. In his second motion, he asks for assistance serving Dr.
Carpenter, whose address he does not have and cannot access. Docket 25 at 1.
Cody claims that seeking personal information of non-inmates is a violation of
SD DOC rules for inmates. Docket 20 at 2. He notes that this court has
previously assisted him and other inmate plaintiffs in similar circumstances.
Id. at 3 (citations omitted).
In one example cited by Cody, this court ordered the state defendants’
attorneys, who had already appeared on behalf of the unserved defendants, “to
provide the last known addresses for [those] defendants to the United States
Marshals Service for service[.]” See Hansen v. S.D. Dep’t of Corr., 4:19-CV-
04019-KES, Docket 44 at 4. Here, defendants have not opposed either motion.
Thus, Cody’s motions for assisted service (Dockets 19, 25) are granted.
Defendants’ counsel must provide the last known addresses for Dreiske,
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Reisch, Young, Leidholt, and Dr. Carpenter to the United States Marshals
Service for service by February 6, 2023.
Thus, it is ORDERED:
1. 	That Cody’s motion for reconsideration (Docket 17) is granted in part
and 	denied 	in 	part. 	Cody’s 	Eighth 	Amendment 	conditions 	of
confinement claim for excessive noise against Badure, Rotert, and
Sullivan in their individual capacities and in their official capacities
for injunctive relief survives § 1915A screening.
2. 	That the Clerk shall send a blank summons form and Marshals
Service Form (Form USM-285) to Cody so that he may cause the
complaint to be served upon defendant Rotert.
3. 	That Cody shall complete and send the Clerk of Court a summons
and 	USM-285 	form 	for 	defendant 	Rotert. 	Upon 	receipt 	of 	the
completed summons and USM-285 forms, the Clerk of Court will
issue the summons. If the completed summons and USM-285 forms
are not submitted as directed, the complaint may be dismissed.
4. 	The 	United 	States 	Marshals 	Service 	shall 	serve 	the 	completed
summons, together with a copy of the complaint (Docket 1), the
supplemental 	complaints 	(Dockets 	8-1 	and 	12-1), 	the 	initial
screening order (Docket 14), and this order, upon defendant Rotert.
5. 	Defendant Rotert, as well as defendants Badure and Sullivan who
are named in the Eighth Amendment claim discussed above, will
serve and file an answer or responsive pleading to the complaint on
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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).
6. 	That defendants’ motion for relief from order (Docket 62) is granted
in part and denied in part. Cody must identify a list of cases cited in
defendants’ briefs that he cannot access by February 6, 2023.
Defendants must then provide to Cody either LEXIS/NEXIS cross-
references or paper copies of Westlaw cases for all Westlaw citations
contained within their memorandum in support of their motion for
summary judgment (Docket 34) and their memorandum in support
of their motion for protective order (Docket 54). Defendants must
also provide to Cody cross-references for individual docket entry
page 	numbers 	for 	cited 	docket 	entries 	not 	contemporaneously
attached contained within these two memoranda. Defendants must
provide these items by 30 days after Cody provides a list of cases he
cannot access.
7. 	That Cody’s motions for assisted service (Docket 19, 25) are granted.
Defendants’ counsel must provide the last known addresses for
Dreiske, Reisch, Young, Leidholt, and Dr. Carpenter to the United
States Marshals Service for service by February 6, 2023.
Dated January 5, 2023.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
Case 4:22-cv-04010-KES Document 65 Filed 01/05/23 Page 18 of 18 PageID #: <pageID>