Engesser v. Fox, CIV. 15-5044-JLV

• Decision Date: 26 September 2016
• Docket Number: CIV. 15-5044-JLV
• Parties: OAKLEY ENGESSER, Plaintiff, v. TROOPER EDWARD FOX, of the South Dakota Highway Patrol and TROOPER FOX'S SUPERVISOR MICHAEL KAYRAS, both in their official capacity and individually; MEADE COUNTY STATES ATTORNEY JENNIFER UTTER; MEADE COUNTY STATES ATTORNEY GORDON SWANSON; MEADE COUNTY ASSISTANT STATES ATTORNEY AMBER RICHEY; MEADE COUNTY; and the STATE OF SOUTH DAKOTA, Defendants.
• Court: United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota

OAKLEY ENGESSER, Plaintiff, v. TROOPER EDWARD FOX, of the South Dakota Highway Patroland TROOPER FOX'S SUPERVISOR MICHAEL KAYRAS,both in their official capacity and individually;MEADE COUNTY STATES ATTORNEY JENNIFER UTTER;MEADE COUNTY STATES ATTORNEY GORDON SWANSON;MEADE COUNTY ASSISTANT STATES ATTORNEY AMBER RICHEY;MEADE COUNTY; and the STATE OF SOUTH DAKOTA, Defendants.

CIV. 15-5044-JLV

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

September 26, 2016

ORDER

INTRODUCTION

Plaintiff Oakley Engesser sues the above-captioned defendants alleging various claims under 42 U.S.C. § 1983 as well as claims under South Dakota state law pursuant to the court's supplemental jurisdiction under 28 U.S.C. § 1367. See Docket 15 at pp. 20-35. Mr. Engesser asserts his civil rights under the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution were violated. Id. at 34.

Plaintiff's complaint contains seven substantive counts and an eighth count requesting damages. Id. at 20-35. Defendants Trooper Edward Fox and the State of South Dakota ("State") filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Docket 18). Defendant Michael Kayras filed a Rule 12(b)(6) motion to dismiss on the same grounds as those asserted by Trooper Fox. (Docket 29). Defendants Jennifer Utter, Gordon Swanson, Amber Richey and Meade County filed a joint Rule 12(b)(6) motion to dismiss and motion to strike. (Docket 20). Mr. Engesser resists in part defendants' motions. (Dockets 25, 27 & 36). For purposes of judicial economy, the court resolves all three motions together.

FACTS

In 2001, a jury convicted Oakley "Bernie" Engesser of vehicular homicide and two counts of vehicular battery. The sole issue at the trial was whether Engesser or the deceased, Dorothy Finley, was driving her Corvette when it crashed into a minivan on Interstate 90. Neither Engesser nor Finley was wearing a seatbelt and both had been drinking alcoholic beverages. The Corvette was going approximately 112 miles per hour when it slammed into the back of the minivan, spun off the road, and rolled several times before coming to rest on its roof in the median. . . . No witness at trial testified to seeing the driver of the Corvette. Engesser was thrown from the car, landing face down in the median. Multiple witnesses at trial placed him between five and ten feet from the driver's side of the Corvette. Engesser was unconscious and suffered a gash to the right side of his head. Finley was trapped in the car on the passenger side underneath the passenger seat, her body in line with the seat. The upper part of Finley's body was lying over the top of the seat. She was facing the ground. Her feet were underneath the dash. Her face was pointing toward the driver's side. The passenger side was crushed and the window shattered, but the roof and front windshield were intact. Finley was pronounced dead at the scene.

Engesser v. Young, 856 N.W.2d 471, 473 (S.D. 2014) (some internal quotation marks and citations omitted); see also Docket 15 at ¶¶ 63-65.

Because the procedural history and factual circumstances underlying Mr. Engesser's claims are well documented in prior judicial opinions and in plaintiff'samended complaint, additional recitation of salient facts is included in the discussion section of the order.

DISCUSSION

I. Rule 12(b)(6) Motion to Dismiss Standard

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . ." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations, quotation marks and brackets omitted). The "plausibility standard" at the pleading stage requires a showing greater than the mere possibility of misconduct yet less than the probability of misconduct. Id. at 556-58.

To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570) (other internal citation omitted). The Court in Iqbal expounded on the "plausibility standard" articulated in Twombly:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that isplausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " . . .

[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. . . . [O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not "show[n]"—"that the pleader is entitled to relief."

556 U.S. at 678-79 (internal citations omitted).

"In analyzing a 12(b)(6) motion, this court assumes all factual allegations in the complaint are true, but the complaint must contain sufficient facts, as opposed to mere conclusions, to satisfy the legal requirements of the claim to avoid dismissal." Taxi Connection v. Dakota, Minnesota & E. R.R. Corp., 513 F.3d 823, 826 (8th Cir. 2008) (internal quotation marks omitted). While the court must accept plaintiff's "factual allegations . . . [it] need not accept as true [his] legal conclusions even if they are cast in the form of factual allegations . . . ." Ashley v. U.S. Department of Interior, 408 F.3d 997, 1000 (8th Cir. 2005)(internal citations and quotation marks omitted). "A motion to dismiss should be granted if it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Id.; see also Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). "Where the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate." Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008).

"[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The court can consider matters in the public record when resolving a Rule 12(b)(6) motion to dismiss. See Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986); see also Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (noting courts can consider "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint") (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)); Vacanti v. Sunset Fin. Servs., Inc., No. 8:08CV436, 2009 WL 792387, at *3 (D. Neb. Mar. 23, 2009) (noting "documents necessarily embraced by the complaint are not considered to be matters outside the pleading") (internal quotation marks and citations omitted).

The court denies Ms. Utter's, Mr. Swanson's, Ms. Richey's and Meade County's request to strike the "procedural history" portion of Mr. Engesser's complaint. (Docket 21 at p. 4). The "procedural history" section of Mr. Engesser's amended complaint is important. The circumstances forming the basis for his claims have been in various stages of criminal and civil litigation for over fifteen years and have been the subject of several state and federal judicial opinions providing dispositive resolutions for many issues relating to Mr. Engesser's case. See State v. Engesser, 661 N.W.2d 739 (S.D. 2003) ("Engesser CR."); Engesser v. Dooley, 457 F.3d 731 (8th Cir. 2006) ("Engesser 2006"); Engesser v. Dooley, 759 N.W.2d 309, 314 (S.D. 2008) ("Engesser 2008"); Engesser v. Dooley, 823 F. Supp. 2d 910, 913 (D.S.D. 2011), rev'd and remanded, 686 F.3d 928 (8th Cir. 2012) ("Engesser 2011"); Engesser v. Dooley, 686 F.3d 928, 934 (8th Cir. 2012) ("Engesser 2012"); Engesser v. Young, 856 N.W.2d 471, 473 (S.D. 2014) ("Engesser 2014"). The prior opinions are referenced in the amended complaint and are also part of the public record. See Docket 15 at pp. 17-20. The court takes judicial notice of the opinions.

II. Plaintiff's Substantive Claims

A. Synopsis

Plaintiff's amended complaint contains seven substantive counts against...