Evens v. Gilbertson

• Decision Date: 27 September 2022
• Docket Number: 5:22-cv-5057
• Parties: RACHEL EVENS, Plaintiff v. DAVID GILBERTSON, STEVEN R. JENSEN, JANINE M. KERN, MARK E. SALTER, PATRICIA J. DEVANEY, SCOTT P. MYREN, Defendants
• Court: U.S. District Court — District of South Dakota

RACHEL EVENS, Plaintiff
v.
DAVID GILBERTSON, STEVEN R. JENSEN, JANINE M. KERN, MARK E. SALTER, PATRICIA J. DEVANEY, SCOTT P. MYREN, Defendants

No. 5:22-cv-5057

United States District Court, D. South Dakota, Western Division

September 27, 2022

MEMORANDUM AND ORDER

Lawrence L. Piersol United States District Judge

Pending before the Court is Defendants' Motion to Dismiss (Doc. 6) the Complaint (Doc. 1). Plaintiff has responded (Doc. 10) and Defendants have replied (Doc. 9). Plaintiff requests relief in the form of money damages and a restraining order preventing further litigation of her divorce and custody case, 51 DIV 18-41, in Pennington County, SD. Plaintiff supports her 96-page Complaint and attachments with an additional 43-page document entitled “Information to Support Complaint.” (Doc. 2). Defendants offer several rationales for dismissal. (Doc. 7).

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Plaintiff has filed a number of lawsuits related to this one. She sued South Dakota Circuit Court Judge Connolly and the South Dakota Supreme Court Justices in the United States District Court for the District of Montana (9:20-cv-00165); South Dakota Circuit Judge Linngren in the same court (9:20-cv-00172); and South Dakota Circuit Judge Gusinsky in the United States District Court for the District of South Dakota (5:22-cv-5054). The Court takes Judicial Notice of these court records. Fed.R.Evid. 201.

I. Background

Plaintiffs husband at the time filed for divorce in the Circuit Court of the Seventh Judicial District, Rapid City, SD, 51 DIV 18-41. The case was assigned to Judge Connolly who granted the divorce on the grounds of extreme cruelty, and made determinations concerning child custody and support, property division, attorneys' fees, and costs. Evens v. Evens, 951 N.W.2d 268, 274-75 (S.D. 2020). He also issued an Order holding Plaintiff in contempt of court. Id. at 276. Plaintiff appealed to the South Dakota Supreme Court, which resolved the issues against her in a lengthy opinion. Evens, 951 N.W.2d at 277-83. Plaintiff s Petition for Rehearing was denied. (Doc. 1-1, PgID 75).

Dissatisfied with the result of her efforts in the South Dakota courts, Plaintiff turned to the federal courts. Her lawsuit against Judge Connolly and the South Dakota Supreme Court based on the outcome of the divorce proceeding was

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dismissed for lack of personal jurisdiction. Evens v. Connolly, 2021 WL 1050455, *3 (D.MT. 2021). The case against Judge Linngren, who had issued orders concerning child custody, met the same fate for the same reason. Evens v. Linngren, 2021 WL 1248624, *2 (D. MT. 2021). Both Judges recused themselves after Plaintiff sued them, and Judge Gusinsky was assigned the case. Plaintiff sued him alleging he had engaged in “egregious discrimination” and violations of her rights, (5:22-cv-5054, PgID 133), and the case was dismissed. Evens v. Gusinsky, 2022 WL 2981649, *4 (D.S.D. 2022).

In the case before this Court, Plaintiff alleges Defendants have failed “to uphold their sworn duties of their judicial office through violating their state's constitution, and refusing to uphold equal justice for all citizens by stark retaliation and blatantly discriminating against a pro se' litigant.” (Doc. 1, PgID 1). She claims there was an “illegal divorce action” involving herself and her former husband, based on an alleged lack of jurisdiction. (Doc. 1, PgID 6). She claims “fraudulent and false allegations” were made in the divorce proceeding. (Id.). Although she fails to delineate her claims, she presents a narrative raising four “issues” in the current proceeding, including lack of judicial immunity, judicial discrimination against her as a pro se litigant, lack of jurisdiction for the divorce proceeding, and “cruel and undue” punishment. (Id.). As noted, she requests money damages and an injunction prohibiting the litigation of all matters relating

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to 51DIV 18-41 because it is “nullified and void.” (Id., PgID 16). She alleges as a basis for jurisdiction that the Defendants have violated 18 U.S.C § 241, 18 U.S.C. § 242, 42 U.S.C. § 1981 and 42 U.S.C. § 1983. She has indicated that the parties are residents of different states. (Id., PgID 17).

The Defendants have moved to dismiss, asserting lack of subject matter jurisdiction, the need for abstention, inapplicability of 42 U.S.C §1983 as the basis for an injunction, and judicial immunity.

IL Discussion

A. Legal Standard- Motion to Dismiss

The Defendants have moved to dismiss Plaintiff's complaint under F.R.C.P. 12(b)(1), lack of subject matter jurisdiction, and 12(b)(6), failure to state a claim upon which relief...