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Dupree v. Pierce

December 21, 2007

CEDRIC DUPREE, PLAINTIFF,
v.
GUY PIERCE, ET.AL., DEFENDANTS



The opinion of the court was delivered by: Harold A. Baker United States District Judge

ORDER

This cause is before the court for consideration of various pending motions including: 1) motions for motion for summary judgment [d/e 91, 92, 94]; 2) a motion for an extension of time to complete discovery [d/e 120]; 3) a motions for an extension of time to file a dispostive motion [d/e121, 135]; 4) motion for substitution of counsel [d/e 122] and 5) a motion to compel discovery [d/e 124].

I. BACKGROUND

The plaintiff in this case originally filed two complaints pursuant to 42 U.S.C.§1983 that the court has consolidated into this lead case. See Dupree v. Pierce, 05-1028, Dupree v. French, 05-1201. The plaintiff's pro se complaints were rambling accounts of numerous incidents. The court appointed counsel for the plaintiff, and identified 21 different claims against 44 defendants including:*fn1

1) Dr. Garlick and Dr. Smith were deliberately indifferent to the plaintiff's serious medical needs when they changed his medications more than twenty-two times to make him appear incompetent and exacerbate his mental health problems.

2) Defendants Henry Teverbaugh and Cletus Shaw violated the plaintiff's due process rights during Adjustment Committee hearings on March 21, 2003 and March 28, 2003.

3) Nurse Ellinger violated the plaintiff's Eighth Amendment rights when she failed to regularly provide his prescribed medications.

4) On March 21, 2003, Defendant Guy Pierce violated the plaintiff's right to be free from excessive use of force. S. Mote, Paula Rich, Potts, Leonard, DeLong, Quade and Mark Spencer conspired to deny the plaintiff meaningful access to the courts. In addition, the plaintiff told P. Hasting, R. Walker, S. Mote, Guy Pierce and Buthley about his denial of access to the courts, but they failed to take any action.

5) Defendant G. Pierce, Bryan Fairchild, Wayne Germaine, Officer Mottershaw, Walker,

6) On February 17, 2005, Officers Fritsche, French, Ware, Rosemburg, Prentice, and Fritzelle participated in a conspiracy when they either paid another inmate to assault the plaintiff or asked medical staff not to report or treat the plaintiff's injuries.

7) The plaintiff has also alleged that Defendants Ware, Prentice, Rosemburg and Fritzelle violated his Eighth Amendment rights when they were deliberately indifferent to his medical needs on February 17, 2005.

8) The plaintiff alleges that the actions taken by Fritsche, French, Ware, Rosemburg, Prentice, and Fritzelle on February 17, 2005 were a violation of his First Amendment Rights because the defendants were retaliating for prior grievances and litigation.

9) The plaintiff says on May 1, 2005, Officer Brewers and Gerdes violated both is Eighth Amendment and First Amendment rights when they used excessive force in retaliation for his grievances and litigation.

10) The plaintiff reported his injuries from May 1, 2005 to Dr. Larson who violated his Eighth Amendment rights when he was deliberately indifferent to the plaintiff's serious medical needs.

11) The plaintiff says on July 28, 2003, Officer Stephens, Hobart, Melvin, Wilson, Woods, Mote and Hodge violated his Eighth Amendment rights when they used used excessive force.

12) The plaintiff says from July of 2003 to the present, Dr. Funk has violated his Eighth Amendment rights because he has been deliberately indifferent to plaintiff's serious medical condition when he refused to provide medical care for the blood in plaintiff's urine.

13) The plaintiff states on several occasions Officers Brewer, Dalbaugh, Eckhert and Fritsche painfully pulled on his waist chain and/or hit him with handcuffs violating his Eighth Amendment right to be free from excessive force. The dates alleged include: November 29, 2004, September 7, 2004, November 1, 2005 and September 27, 2005.

14) The plaintiff says Lieutenant Potter and Officer Barthold denied him medical attention after he was injured on October 16, 2004 in violation of the Eighth Amendment.

15) The plaintiff says Officers Shaw and Birkel refused him medical attention on August 1, 2003, after he seriously injured his wrists in violation of his Eighth Amendment rights.

16) The plaintiff says on June 13, 2005, Officer Punke violated the Eighth Amendment when he refused to provide needed medical care. The plaintiff says he was on suicide watch and the officer allowed him to have some kind of cutting devise and told the plaintiff to "cut deeper." (Comp, p 5-b)

17) Officers French and Fritsche conspired against the plaintiff and retaliated against him by allowing inmates to attack the plaintiff on October 2, 2004, October 16, 2004 and November 29, 2004.

18) Officers French and Fritsche were deliberately indifferent to the plaintiff's serious medical needs on October 2, 2004, October 16, 2004 and November 29, 2004. and allowed the attacks in retaliation for previously filed grievances and litigation.

19) Officer Ramsey failed to protect the plaintiff when he allowed an inmate to attack him on July 28, 2003.

20) The plaintiff warned Defendants Mote, Wilson, Melvin and Walker that he would be attacked again, but he says they took no action and he was assaulted by the same inmate again on July 31, 2003. The plaintiff says this was in retaliation for his grievances and law suits. The plaintiff has stated a failure to protect and retaliation claim.

21) The plaintiff says from August of 2003 to the present, Defendants Walker, Libby, Hodge, Nolen and Pierce have failed to put him in protective custody or to take any action to protect him. Instead, they continue to place him near dangerous inmates and he continues to be assaulted. The plaintiff alleges failure to protect, conspiracy and retaliation claims against these individuals.

All claims are against the defendants in their individual capacities only.

The court stated that the plaintiff had named an unwieldily number of defendants and claims. The court encouraged the defendants to file initial summary judgment motions addressing any claims barred by the statute of limitations period or any claims for which the plaintiff has failed to exhaust his administrative ...


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