Reiman v. Solem, 13919

• Decision Date: 23 March 1983
• Docket Number: No. 13919,13919
• Citation: 337 N.W.2d 804
• Parties: Harold REIMAN, Plaintiff and Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary; Richard Rist, Associate Warden, South Dakota State Penitentiary; Unknown Officers of the South Dakota State Penitentiary, All Individually and in Their Official Capacities, Defendants and Appellees. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 804

337 N.W.2d 804

Harold REIMAN, Plaintiff and Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary Richard Rist, Associate Warden, South Dakota State Penitentiary; Unknown Officers of the South Dakota State Penitentiary, All Individually and in Their Official Capacities, Defendants and Appellees.

No. 13919.

Supreme Court of South Dakota Considered on Briefs March 23, 1983.

Decided July 6, 1983.

Rehearing Denied Sept. 7, 1983.

Reiman would frame the issues in this appeal in the context of violations of his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution and art. VI, Secs. 1 and 2 of the South Dakota Constitution. We do not see them rising to that proportion.

The first issue that we perceive is whether the trial court erred in dismissing the complaint against Solem and Rist because of the doctrine of sovereign immunity. This court recently discussed sovereign immunity in National Bank of South Dakota v. Leir, 325 N.W.2d 845 (S.D.1982), and Kruger v. Wilson, 325 N.W.2d 851 (S.D.1982). There, this court stated the "three step test" as to immunity: (1) whether the State was the real party in interest; (2) whether the employee was sued in an official or personal capacity; and (3) whether the employee was exercising a discretionary or ministerial function.

Applying these rules to the suit against the warden and associate warden, we find that under the first step, since a judgment for Reiman would not subject the State to liability, the State is not the real party in interest here. See High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980). However, under the second step, reviewing "whether the employee was sued in an official or personal capacity," Reiman's complaint does not allege personal negligence on the part of the warden or associate warden. See Kruger v. Wilson, supra; Arndt v. Hannum Trucking, 324 N.W.2d 680 (S.D.1982); Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981). Rather, these employees are sued due to their employment positions. If anyone else were employed in these positions, they would have been sued rather than Solem and Rist. Since they are sued in their official capacities, Solem and Rist are immune from suit. ¹ However, for the reasons we will hereinafter discuss, we hold that the trial court was premature in entering an order of dismissal.

The trial court dismissed the complaint, stating Reiman has failed to name those who allegedly took his typewriter, therefore, "[he] cannot maintain his action against the named defendants." In examining the propriety of this dismissal, we note that Penitentiary Officials, appearing through an assistant attorney general as previously noted, first moved the court to require Reiman to make his complaint more definite and certain in these regards: (1) name the individuals who took the typewriter; (2) state the date the property was taken; and (3) state pursuant to what rule, regulation or practice of the penitentiary was the property taken. ² Pursuant to this motion, the trial court entered its order requiring a more definite statement within ten days after service of the order. Thereafter, Reiman made timely service of an "answer for a more definite statement" in which he responded that he did not know the answers to (1) and (2) because he was not there but that the prison records, specifically the inventory list signed by the officer who took the inventory, would show those items. As for inquiry (3), Reiman responded that the Penitentiary Officials were well aware of their own rules and regulations.

At the same time that Reiman responded, he served a motion and proposed order for production of documents, specifically requesting his penitentiary property card, the inventory card prepared when the property was removed from his cell, and any written rules, regulations or practices used to remove a prisoner's property when he was removed from the general prison population. The inventory card, at least, appears to be particularly necessary for Reiman to identify the unknown officers responsible for removing his property. The trial court failed to make any ruling on this motion but subsequently granted Penitentiary Officials' motion for dismissal. The record is silent as to why the trial court did not act on Reiman's motion. The settled record shows that the motion was not filed until July 13, 1982, the date on which the order for dismissal was entered and filed. The motion for production of documents, however, had been served on the assistant attorney general well in advance of his answer and motion to dismiss. He filed no resistance to the motion but rather answered, as indicated, with the motion for dismissal. The trial court may have believed that there was no other procedural matter remaining than to rule on the Penitentiary Officials' motion. Penitentiary Officials cannot take advantage of this apparent disbelief. The production of the documents, particularly items (1) and (2), appear to be crucial to Reiman's case. Why they had not been made available...