Kurtenbach v. Codington County et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
MATTHEW KURTENBACH,
Plaintiff,
vs.
CODINGTON COUNTY, BRAD
HOWELL, MATT BLACKWELDER,
REBECCA REITER,
Defendants.
CIV. 20-1008-JLV
ORDER
Plaintiff Matthew Kurtenbach, appearing pro se, brought this action
under 42 U.S.C. § 1983 alleging defendants violated his constitutional rights
during his pretrial detention in the Codington County Jail in Watertown, South
Dakota. 	(Docket 10). 	Defendants filed a motion for summary judgment
together with a legal memorandum, statement of undisputed material facts,
seven affidavits and ten exhibits. 	(Dockets 24 through 27, 27-1, 27-2, 28, 28-1
through 28-5, 29, 29-1, 30, 31, 31-1 & 32). 	A September 13, 2021, order
permitted defendants to file an amended brief, statement of undisputed
material facts and affidavit. 	(Docket 52 at p. 5). 	On September 15, 2021,
defendants filed their amended brief, statement of undisputed material facts
and affidavit. 	(Dockets 53-55).
By the court’s local rules, plaintiff’s response to defendants’ motion for
summary judgment was due on or before October 7, 2021. 	D.S.D. Civ. LR
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7.1(B).1 A frequent pro se litigant in the District of South Dakota, Mr.
Kurtenbach was previously advised of this local rule and his obligation to
respond to defendants’ motions. 	See Kurtenbach v. Malson-Rysdon, CIV. 12-
5047 (D.S.D. 2012); Kurtenbach v. Bertsch, CIV. 12-5077 (D.S.D. 2012);
Kurtenbach v. Gross, CIV. 13-5024 (D.S.D. 2013); Kurtenbach v. Jackley, CIV.
16-5021 (D.S.D. 2016); Kurtenbach v. City of Winner, CIV. 19-3018 (D.S.D.
2019).
Mr. Kurtenbach’s pro se status does not entitle him to disregard the
Federal Rules of Civil Procedure. 	Bennett v. Dr. Pepper/Seven Up, Inc.,
295 F.3d 805, 808 (8th Cir. 2002). 	Pro se litigants also must comply with court
rules and directives. 	Soliman v. Johanns, 412 F.3d 920, 922 (8th Cir. 2005).
However, plaintiff’s failure to respond to defendant’s motion for summary
judgment “does not automatically compel resolution of [the motions] in favor of
[defendant].” 	United States v. One Parcel of Real Prop., 27 F.3d 327, 329 n.1
(8th Cir. 1994); see also Canada v. Union Elec. Co., 135 F.3d 1211, 1213 (8th
Cir. 1997) (“When a motion would be dispositive of the merits of the cause if
granted, courts should normally not treat a failure to respond to the motion as
conclusive.”); Soliman, 412 F.3d at 922 (determining whether summary
judgment was appropriate on the merits despite a plaintiff’s failure to respond
to a defendant’s summary judgment motion). 	The court need not reach the
merits of defendants’ motion and declines to do so.
Unlike the majority of cases where the district court resolved a motion on
the merits despite a plaintiff’s failure to respond, here Mr. Kurtenbach was
1 The Civil Local Rules of Practice for the United States District Court for
the District of South Dakota may be found on the internet at: https://www.
sdd.uscourts.gov/, under the tab “Local Rules & General Orders.”
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aware of his obligation to respond to defendants’ motion. 	In this litigation, on
September 29, 2021, the court denied Mr. Kurtenbach’s motion for “ ‘three
signed subpoenas duces tecum’ from the Clerk of Court.”2 (Docket 56 at p. 1).
The motion was denied without prejudice. 	Id. at p. 2. 	The court advised Mr.
Kurtenbach he “may refile a motion for the issuance of subpoenas duces
tecum.” 	Id. 	A new motion was required to “state with sufficient detail the
relevancy of each document requested ‘so that this Court can assess
compliance with Rule 45(d)(1), which requires the subpoenaing party to ‘avoid
imposing undue burden or expense on [the] person subject to the subpoena.’ ”
Id. (citing Aldridge v. Hill, No. 1:18-CV-00259, 2020 WL 5547760, at *1 (E.D.
Mo. Sept. 16, 2020) (citing Fed. R. Civ. P. 45(d)(1)).
Since the filing of defendants’ amended documents in support of
summary judgment and the September 29, 2021, order, Mr. Kurtenbach has
not filed another motion for the issuance of subpoenas duce tecum, a motion
for Fed. R. Civ. P. 56(d) discovery in advance of filing his response to
defendants’ motion for summary judgment or a motion for a continuance of the
timeframe within which plaintiff’s response must be filed. 	These are all options
which are available to Mr. Kurtenbach and motions which he was certainly
capable of filing if necessary.
Mr. Kurtenbach is expected to comply with the court’s local rules, as well
as the Federal Rules of Civil Procedure. 	Given plaintiff’s previous litigation in
this court, the court finds he has the capacity to litigate this lawsuit.
2 If this order is determined to have restarted plaintiff’s 21-day period to
respond to defendants’ motion for summary judgment under D.S.D. Civ. LR
7.1(B), that deadline expired on October 21, 2021.
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Dismissal is an appropriate sanction given plaintiff’s noncompliance with the
rules.
The court next must determine whether the dismissal of plaintiff’s
complaint should be with or without prejudice. 	“Dismissal with prejudice is an
extreme sanction and should be used in cases of willful disobedience of a court
order or continued persistent failure to prosecute a complaint.” 	Givens v. A.H.
Robins Co., Inc., 751 F.2d 261, 263 (8th Cir. 1984). 	See also Link v. Wabash
R.R. Co., 370 U.S. 626, 630-33 (1962) (holding a district court may dismiss an
action under Rule 41(b) on its own initiative and “without affording notice of its
intention to do so or providing an adversary hearing before acting[,]” and
recognizing a district court has the inherent authority to “manage [its] own
affairs so as to achieve the orderly and expeditious disposition of cases[]”).
Based on the procedural history of this case and plaintiff’s failure to file a
response to defendants’ motion for summary judgment, the court finds it
appropriate to dismiss the amended complaint with prejudice. 	Pursuant to
Rule 41(b) and the court’s inherent authority, it is
ORDERED that plaintiff’s amended complaint (Docket 10) is dismissed
with prejudice.
IT IS FURTHER ORDERED that defendants’ motion for summary
judgment (Docket 24) is denied as moot.
Dated December 28, 2021.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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