Counts v. Wasko

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

DAVID L. COUNTS, 4:23-CV-04103-KES Plaintiff,

vs. ORDER DISMISSING CASE

KIM HALVERSON, in her individual capacity; UNKNOWN DOC EMPLOYEES, in their individual and official capacities; UNKNOWN DEPARTMENT OF HEALTH EMPLOYEES, in their individual and official capacities; UNKNOWN DOC CONTRACTORS, in their individual and official capacities; and SUMMIT FOOD SERVICE,

Defendants.

Plaintiff, David L. Counts, Kim Halverson, in her individual capacity, and Summit Food Service jointly move to dismiss this action and all claims asserted against Halverson and Summit Food Service with prejudice and without costs to any party. Docket 377. The parties’ joint motion (Docket 377) is granted, and Counts’s claims against Halverson and Summit Food Service are dismissed upon the merits with prejudice, without further notice or hearing, and without costs to any party. Counts moves for leave to dispute Docket 364, one of Halverson and Summit Food Service’s responses to some of his motions that are no longer pending. Docket 378. Counts’s motion for leave to dispute Docket 364 (Docket 378) is denied as moot. Counts’s complaint names as defendants unknown DOC employees,

unknown Department of Health employees, and unknown DOC contractors. Docket 1 ¶¶ 43–45. Counts has not identified these unknown defendants. Federal Rule of Civil Procedure 21 provides that the court “on its own, . . . may at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21. Counts’s deadline to move to join additional parties was June 30, 2025. Docket 371 at 9. Counts has not filed a motion to amend identifying and adding any of the unknown defendants. See McCrudden v. United States, 763 F. App’x 142, 145 (3d Cir. 2019) (“The case law is clear that [f]ictious parties must eventually be

dismissed, if discovery yields no identities.” (internal quotation omitted, alteration in original)). Further, the time for service under Federal Rule of Civil Procedure 4(m) has run. Counts’s claims against the unknown DOC employees, unknown Department of Health employees, and unknown DOC contractors are dismissed without prejudice. Thus, it is ORDERED: 1. That the joint motion for dismissal (Docket 377) is granted, and Counts’s claims against Halverson and Summit Food Service are

dismissed upon the merits with prejudice, without further notice or hearing, and without costs to any party. 2. That Counts’s motion for leave to dispute Docket 364 (Docket 378) is denied as moot. 3. That Counts’s claims against the unknown DOC employees, unknown Department of Health employees, and unknown DOC contractors are dismissed without prejudice.

Dated July 1, 2025. BY THE COURT:

/s/ Karen E. Schreier KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE