Kurtenbach v. S.D. Attorney Gen. Martin Jackley

• Decision Date: 29 March 2018
• Docket Number: CIV. 16-5021-JLV
• Parties: MATTHEW C. KURTENBACH, a/k/a MATTHEW KURTENBACH, Plaintiff, v. SOUTH DAKOTA ATTORNEY GENERAL MARTIN JACKLEY, SOUTH DAKOTA SECRETARY OF CORRECTIONS DENNY KAEMINGK, LINDSAY QUASNEY, JOHN WENANDE and DOUG CLARK, Defendants.
• Court: U.S. District Court — District of South Dakota

MATTHEW C. KURTENBACH, a/k/a MATTHEW KURTENBACH, Plaintiff, v. SOUTH DAKOTA ATTORNEY GENERAL MARTIN JACKLEY, SOUTH DAKOTA SECRETARY OF

CORRECTIONS DENNY KAEMINGK, LINDSAY QUASNEY,

JOHN WENANDE and DOUG CLARK, Defendants.

CIV. 16-5021-JLV

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

March 29, 2018

ORDER

INTRODUCTION

Plaintiff Matthew Kurtenbach sues the above-captioned defendants alleging various claims under 42 U.S.C. § 1983. (Docket 15). The defendants filed a motion to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Docket 23). Plaintiff resists in part and agrees in part to defendants' motion. (Docket 31). For the reasons stated below, defendants' motion to dismiss is granted in part and denied in part.

ANALYSIS

Plaintiff's amended complaint contains seven claims against the defendants. Those claims are:

Count 1: Using phony "subpoenas" to subvert constitutional protections. (Docket 15 at p. 3) (capitalization, bold and parentheses omitted); Count 2: Unfettered state surveillance of individuals' pharmacy records. Id. at p. 6 (capitalization, bold and parentheses omitted);

Count 3: Increasing criminal sentences on the basis of facts neither admitted nor found by a jury. Id. at p. 8 (capitalization, bold and parentheses omitted);

Count 4: Jailing of parolees without a proper basis. Id. at p. 10 (capitalization, bold and parentheses omitted);

Count 5: Unauthorized revocation of parole. Id. at p. 13 (capitalization, bold and parentheses omitted);

Count 6: Delayed and denied preliminary revocation hearing. Id. at p. 15 (capitalization, bold and parentheses omitted); and

Count 7: Retaliation for seeking a parole board meeting. Id. at p. 17 (capitalization, bold and parentheses omitted).

Defendants' motion to dismiss the entirety of the amended complaint is premised on Fed. R. Civ. P. 12(b)(6). (Docket 23). In the alternative, defendants ask the court to dismiss the official capacity claims against Attorney General Martin Jackley ("Attorney General Jackley") and South Dakota Secretary of Corrections Denny Kaemingk ("Secretary Kaemingk") and the individual, personal capacity claims against defendants Ms. Quasney, Mr. Wenande and Mr. Clark. Id.

In response to defendants' motion to dismiss, Mr. Kurtenbach does not object to the dismissal of count 3. (Docket 31 at p. 31). Defendants' motion to dismiss count 3 will be granted.

Mr. Kurtenbach acknowledges count 5 is barred by the Heck¹ doctrine, but asks the court to abstain from ruling on this cause of action until the underlying state court habeas proceeding is resolved. Id. at p. 35. The court will address count 5 as part of its analysis of defendants' motion to dismiss.

Rule 12(b)(6) provides for dismissal if the plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In evaluating the defendants' Rule 12(b)(6) motion, the court accepts as true all of the factual allegations contained in plaintiff's complaint and grants all reasonable inferences in favor of plaintiff as the nonmoving party. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) ("a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' ") (citing Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). See also Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009) (the court must review "a Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting the facts alleged in the complaint as true and granting all reasonable inferences in favor of the plaintiff, the nonmoving party.") (brackets omitted). "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 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Bell Atlantic Corp. v. Twombly,550 U.S. 544, 555 (2007) (citations omitted). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal, 556 U.S. at 679.

"When ruling on a motion to dismiss under Rules 12(b)(6) . . . a district court generally may not consider materials outside the pleadings. . . . . It may, however, consider some public records, materials that do not contradict the complaint, or materials that are necessarily embraced by the pleadings." Noble Systems Corp. v. Alorica Central, LLC, 543 F.3d 978, 982 (8th Cir. 2008) (internal citation and quotation marks omitted). The court may also consider matters in the public record of which the court may take judicial notice. Tellabs, Inc. v. Makor Issues and Rights, LTD., 551 U.S. 308, 322 (2007). "Jurisdictional issues, whether they involve questions of law or of fact, are for the court to decide." Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990).

The Civil Rights Act provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

42 U.S.C. § 1983. "Section 1983 does not confer subject matter jurisdiction. The statute simply provides a means through which a claimant may seek a remedy in federal court for a constitutional tort when one is aggrieved by the actof a person acting under color of state law." Jones v. United States, 16 F.3d 979, 981 (8th Cir. 1994).

"The district court [is] required to evaluate [each defendant's] conduct individually. . . . Liability for damages for a federal constitutional tort is personal, so each defendant's conduct must be independently assessed. . . . Section 1983 does not sanction tort by association." Heartland Academy Community Church v. Waddle, 595 F.3d 798, 805-06 (8th Cir. 2010) (internal citations omitted).

Mr. Kurtenbach asserts claims against Attorney General Jackley in his official capacity seeking declaratory and injunctive relief. (Docket 15 ¶ 33(b) [count 1]; ¶ 47(b) [count 2]; ¶ 72(b) [count 4]; ¶ 85(b) [count 5]; ¶ 93(b) [count 6]; and ¶ 103(b) [count 7]). Mr. Kurtenbach makes no personal capacity claims against Attorney General Jackley.

The amended complaint asserts claims against Secretary Kaemingk in his official capacity seeking declaratory and injunctive relief. (Docket 15 ¶ 47(b) [count 2]; ¶ 72(b) [count 4]; ¶ 85(b) [count 5]; ¶ 93(b) [count 6]; and ¶ 103(b) [count 7]). Mr. Kurtenbach makes no personal capacity claims against Secretary Kaemingk.

Mr. Kurtenbach asserts one claim against Assistant Attorney General Lindsey Qausney ("AAG Quasney") in both her official and personal capacities seeking money damages and injunctive relief. (Docket 15 ¶ 33(a) [count 1]). Plaintiff asserts two claims against South Dakota Division of CriminalInvestigation Agent Wenande ("Agent Wenande") in both his official and personal capacities seeking money damages and injunctive relief. (Docket 15 ¶ 47(a) [count 2]; and ¶ 72(a) [count 4]).

The amended complaint asserts three claims against South Dakota Board of Pardons and Paroles Director Clark ("Director Clark"), in both his official and personal capacities, seeking money damages and injunctive relief. (Docket 15 ¶ 85(a) [count 5]; ¶ 93(a) [count 6] and ¶ 103(a) [count 7]).

OFFICIAL CAPACITY CLAIMS

Before addressing plaintiff's claims against the defendants in their individual capacities, the court addresses Mr. Kurtenbach's claims against the defendants in their official capacities. "The Eleventh Amendment generally bars suits for damages against a state or state officials in their official capacities unless the state waives its sovereign immunity." Christensen v. Quinn, 45 F. Supp. 3d 1043, 1059 (D.S.D. 2014), reconsideration denied, Civ. No. 10-4128, 2014 WL 6471378 (D.S.D. Nov. 18, 2014) (citing Will v. Mich. Department of State Police, 491 U.S. 58, 66 (1989)). "A suit against a public employee in his or her official capacity is merely a suit against the public employer." Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). "Furthermore, neither a state nor its officials acting in their official capacities are 'persons' who may be sued for money damages under § 1983." Christensen, 45 F. Supp. 3d at 1059 (citing Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613,617 (2002)). Finally, "respondeat superior or vicarious liability will not attach under § 1983." Rutan v. State of South Dakota, No. CIV. 05-4070, 2005 WL 1398596, at *3 (D.S.D. June 14, 2005) (citing Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 778 (8th Cir. 2001)).

Declaratory and prospective injunctive relief are available as remedies against a state officer in his official capacity. Pulliam v. Allen, 466 U.S. 522, 541 (1984). Immunities, i.e., absolute, prosecutorial or qualified immunity are not a bar "to plaintiff's action for injunctive and declaratory relief under Section 1983." Timmerman v. Brown, 528 F.2d 811, 814 (4th Cir. 1975).

In so far as Mr. Kurtenbach alleges defendants, AAG Quasney, Agent Wenande and Director Clark, violated his constitutional rights in their official capacities, the court finds the § 1983 claims for money damages are actually claims against the State of South Dakota. Johnson, 172 F.3d at 535. Accordingly, Mr. Kurtenbach's 1983 claims for money damages against the defendants in their official capacities are dismissed.

The court will now address each...