Jensen v. Zuern

• Decision Date: 31 May 1994
• Docket Number: No. 930386CA,930386CA
• Citation: 517 N.W.2d 118
• Parties: Herbert O. JENSEN, Plaintiff and Appellant, v. Edwin F. ZUERN, Elaine Little, Wanda Bier, Karen Halldorson, Marion Rott, Timothy Schuetzle, Defendants and Appellees, and American Correctional Association, State Bonding Fund, Co-Defendants and Appellees. Civ.
• Court: North Dakota Court of Appeals

Page 118

517 N.W.2d 118

Herbert O. JENSEN, Plaintiff and Appellant, v. Edwin F. ZUERN, Elaine Little, Wanda Bier, Karen Halldorson Marion Rott, Timothy Schuetzle, Defendants and Appellees and American Correctional Association, State Bonding Fund Co-Defendants and Appellees.

Civ. No. 930386CA.

Court of Appeals of North Dakota.

May 31, 1994.

Herbert O. Jensen, pro se. Submitted on brief.

Courtney McDonald Koebele (argued), Asst. Atty. Gen., Bismarck, for defendants and appellees.

Jane L. Dynes (argued), Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, for co-defendant and appellee American Correctional Ass'n.

HOBERG, Surrogate Judge.

Herbert O. Jensen, an inmate in the maximum security unit at the North Dakota penitentiary, appeals from an order denying his motion to amend a judgment and from an amended judgment dismissing his action and awarding attorney's fees to the American Correctional Association (ACA) and to the State of North Dakota. We affirm in part and reverse in part.

In affirming the dismissal of a prior action by Jensen against Warden Tom Powers, the North Dakota Supreme Court ordered that costs and disbursements for that appeal be taxed against Jensen by the district court. Jensen v. Powers, 472 N.W.2d 223 (N.D.1991). When Powers moved for costs in the district court, Jensen resisted and filed a "motion to strike motion for costs and disbursements." Jensen also filed a "notice of exemptions," claiming exemptions under N.D.C.C. ch. 28-22. The district court taxed costs and disbursements of $85 against Jensen on August 7, 1991.

Jensen refused to authorize a transfer of funds from his inmate account and again claimed exemptions under N.D.C.C. ch. 28-22. After being advised by legal counsel Edwin F. Zuern that, under N.D.C.C. Sec. 12-48-15(4), penitentiary officials were authorized to withdraw funds from Jensen's inmate account to pay his court costs, Elaine Little, the director of the Department of Corrections and Rehabilitation, directed Marion Rott, an employee at the penitentiary, to withdraw $85 from Jensen's inmate account. According to a computer ledger listing Jensen's inmate accounts, $85 was debited from his personal inmate account on February 5, 1992, leaving a balance in that account of minus $65.98. The computer ledger for Jensen's personal account also listed a February 12, 1992 deposit of $31 for "PEN PAY--EDUCATION," leaving a balance of minus $34.98, and a February 24, 1992 deposit of $436.50 for "UST TAX REFUND," leaving a balance of $401.52. Jensen filed a grievance with penitentiary officials about the $85 debit. Jensen's grievance was heard and rejected by Wanda Bier, a grievance hearing officer. Tim Schuetzle, the new warden, sustained Bier's decision.

Jensen then sued Zuern, Little, Rott, Bier, Schuetzle, and Karen Halldorson, another penitentiary employee, (hereinafter collectively referred to as "individual state defendants") as well as ACA and the North Dakota State Bonding Fund, alleging:

"When prison officials transferred $85.00 to the NDSP account from Jensens' inmate account without signature violated Due Process, Equal Protection, Equal Treatment, without giving him a hearing, denied him those entitlements under the U.S. Constitution of the Taking Clause of the 5th Amendment, 14th Amendment, ACA Standards 3-4045 & 3-4279 & ND Constitution Article I, Sec. 12.

* * * * * *

"Plaintiff alleges that defendant Zuern violated NDCC 28-20--Judgments & 28-22--Exemptions when he conspired with Elaine Little, Wanda Bier, Karen Halldorson, Marion Rott & Timothy Schuetzle to take monies from his prison inmate account which were deposited from a tax refund from a annuity received from his USAF pension & protected under Title 10 USC Sec. 1440, Title 38 USC Sec. 1501 & Title 26 USC Sec. 6334 in violation of Title 42 USC Sec. 1985(3) & conspiracy laws of North Dakota.

* * * * * *

"Plaintiff's 1ST & 14TH Amendment right of access of the courts was violated when Marion Rott presented Respondant's Statement of Costs & Disbursements eleven days before they were filed in District court for payment of $160.00, refusing to show or give envelope that contained the documents, violating the Inmate Handbook * * * * * *

dtd January 1990, NDSP Policies & Manual, MAIL, TELEPHONE & VISITING, dtd 11/7/90, revised 3/26/92 & ACA Standards 3-4433, 3-4434, & 3-4435, threatening plaintiff with punishment if he did not sign a Individual Transfer Voucher violated his Due process rights.

"Plaintiff alleges that the American Correctional Association after signing contract with NDSP on November 6, 1991, has failed to enforce ACA Standards 3-4045, 3-4279 for prison inmate funds or 3-4433, 3-4434 & 3-4435 handling legal mail under case law Jensen v. Klecker, 648 F.2d 1179, 1180 (C.A.8 1981) & failed to enforce compliance by strict audits violates Plaintiffs' constitutional rights under the Equal Treatment & Equal Protection Clause of the 14th Amendment to the U.S. Constitution."

ACA sought dismissal of Jensen's complaint and attorney's fees, asserting that Jensen's action failed to state a claim and was frivolous. The other defendants also moved to dismiss Jensen's complaint, alleging that the individual state defendants received insufficient process and that the complaint failed to state a claim against the State Bonding Fund.

The district court concluded Jensen's "allegations are without merit, are groundless in law and are frivolous and, in many respects, just plain silly" and dismissed

"(1) as to ACA for failure to state a claim upon which relief can be granted, (2) as to the [state] defendants individually for sovereign immunity, and (3) as to the State Bonding Fund for insufficiency of service and failure to state a claim upon which relief can be granted."

The court awarded $1,000 in attorney's fees to ACA and $1,000 in attorney's fees to the State "inasmuch as the individual defendants are state employees or a state agency each being represented in this action by the State of North Dakota. Section 28-26-01(2), NDCC." Pursuant to N.D.R.Civ.P. 59(j), Jensen moved to amend the judgment of dismissal, contending that ACA conspired with the individual state defendants. The district court denied Jensen's motion and an amended judgment of dismissal was entered. Jensen appealed from the order denying his motion to amend the judgment and from the amended judgment.

ACA

Jensen's complaint essentially alleged that ACA failed to compel the penitentiary to adhere to ACA's accreditation standards for inmates' accounts and legal mail.

In support of its motion to dismiss Jensen's complaint, ACA submitted an affidavit of its executive director, James A. Gondles, Jr., which stated:

"3. ACA is a private, not-for-profit corporation organized under the laws of the State of New York. ACA's over 20,000 members include corrections officials, sheriffs, probation and parole officers, members of the judiciary, ex-offenders and others interested in improvement of the correctional system in the United States.

* * * * * *

"5. Through its Commission on Accreditation for Corrections division, ACA maintains a private, non-governmental, voluntary certification program pursuant to which correctional facilities may apply for ACA accreditation. Accreditation is based upon an applicant correctional facility's demonstration of compliance with correctional facility standards adopted by ACA.

"6. Because ACA's accreditation program is entirely voluntary, ACA has no authority to require a correctional facility to adopt any procedures or to change any existing procedures. Rather, ACA's sole authority is to deny accreditation to any facility found not to be in compliance with ACA's standards.

"7. No governmental or quasi-governmental organization requires that ACA operate its accreditation program. To the best of ACA's knowledge, no governmental or quasi-governmental organization required that the North Dakota State Penitentiary apply for ACA accreditation.

"8. ACA's accreditation program is funded completely by the fees paid to ACA by applicant correctional facilities under "9. The North Dakota State Penitentiary was accredited by ACA based in part on a facility inspection which took place on November 4-6, 1991."

the terms of an agreement which each facility signs with ACA. Although ACA does receive grants from the federal government, no federal grant money is used to operate the correctional facility accreditation program.

Additionally, when Jensen filed his complaint, he submitted an affidavit with attached exhibits. In dismissing Jensen's action, the district court did not exclude Jensen's materials or Gondles' affidavit. Pursuant to N.D.R.Civ.P. 12(b) and (c), the court therefore treated ACA's motion to dismiss Jensen's complaint as a motion for summary judgment under N.D.R.Civ.P. 56. Livingood v. Meece, 477 N.W.2d 183 (N.D.1991). Accordingly, we review the dismissal of Jensen's action under the standards applicable to summary judgment.

Summary judgment is proper when, after viewing the evidence in the light most favorable to the opposing party and giving that party the benefit of all favorable inferences, there is no genuine dispute as to either the material facts or the inferences to be drawn from undisputed facts. Livingood v. Meece. Even when factual disputes exist, summary judgment is appropriate if resolution of those factual disputes would not change the result. Volk v. Wisconsin Mortgage Assurance Co., 474 N.W.2d 40 (N.D.1991).

Jensen characterizes his action as a civil rights claim under 42 U.S.C. Sec. 1983. ¹ A claim under Sec. 1983 must allege that conduct of a defendant acting under color of state law deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or by the laws of the United States. Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990); Bell v. Stigers, 937 F.2d 1340 (8th Cir.1991); Jones v. Gutschenritter, 909 F.2d 1208 (8th Cir.199...