Sisney v. Best Inc., No. 24682.

CourtSupreme Court of South Dakota
Writing for the CourtZinter
Citation754 N.W.2d 804,2008 SD 70
Docket NumberNo. 24682.
Decision Date23 July 2008
PartiesCharles E. SISNEY, Plaintiff and Appellant, v. BEST INC. (Individually), CBM, Inc. (Individually), and William Carl Preyer (Individually), Defendants and Appellees.
754 N.W.2d 804
2008 SD 70
Charles E. SISNEY, Plaintiff and Appellant,
v.
BEST INC. (Individually), CBM, Inc. (Individually), and William Carl Preyer (Individually), Defendants and Appellees.
No. 24682.
Supreme Court of South Dakota.
Considered on Briefs March 26, 2008.
Decided July 23, 2008.
Rehearing Denied August 18, 2008.

[754 N.W.2d 806]

Charles E. Sisney, SD State Penitentiary, Sioux Falls, South Dakota, pro se plaintiff and appellant.

Jeffrey L. Bratkiewicz, Michele A. Munson of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, South Dakota Attorneys for defendants and appellees.

ZINTER, Justice.


[¶ 1.] Charles E. Sisney, an inmate in the South Dakota State Penitentiary (SDSP), filed a pro se complaint against Best Inc., CBM Inc., and William Carl Preyer (Defendants). Sisney asserted claims under 42 U.S.C. §§ 1983 and 1985. He also asserted numerous state law claims. All claims arise out of Best's and CBM's contracts with the State to provide food at the SDSP. The circuit court dismissed for failure to state a claim, concluding that Sisney's complaint was untimely as to Best, and that it failed to allege sufficient facts to support the remaining federal and state claims. With the exception of the state law claim of deceit, we affirm.

754 N.W.2d 807
I

[¶ 2.] Sisney pleaded that he is Jewish and follows a kosher diet as part of his religion. He further pleaded that the State entered into a contract with Best to provide food services at the SDSP from February of 2000 until July 31, 2002. As part of this contract, Best provided a kosher diet, including kosher bread. Best purchased the bread from Metz Baking Company.

[¶ 3.] In August 2002, the State entered into a new contract with CBM to provide the same services, including food for kosher diets. From that time until December 8, 2004, CBM provided prisoners receiving a kosher diet with the same bread Best had previously served. On December 8, 2004, CBM began purchasing bread from Old Home Bakery.

[¶ 4.] Sisney later heard rumors from other prisoners that the bread Best and CBM provided might not have been "certified" kosher. Sisney submitted an administrative grievance through the Department of Corrections. The grievance was forwarded for investigation by Preyer, a food service director and employee of CBM. Preyer responded to the grievance, stating that the bread had "certification on file." In January 2006, however, Sisney received an affidavit from Preyer in the course of other litigation stating that CBM did not, at that time, have kosher certification for either the Metz or Old Home Bakery bread that had been provided through December 14, 2004. Sisney thereafter commenced this suit as the result of Preyer's conflicting responses and the assertion that non-kosher certified food had been (and was being) provided.

[¶ 5.] Because this appeal concerns the circuit court's dismissal on the pleadings, the complaint's allegations that have been preserved for appeal are repeated verbatim. Sisney pleaded that Defendants were liable under the federal causes of action for:

"The violation of the plaintiff's rights guaranteed under the U.S. and South Dakota constitutions...."

"The conspiracy of the defendants to deny plaintiff his constitutional rights as guaranteed under the U.S. and South Dakota constitutions."

Sisney pleaded that Defendants were liable under the state causes of action for:

"The deceptive acts of the defendants in violation of SDCL 37-24-6."

"The fraudulent actions of the defendants in violation of SDCL 20-10-1 et seq."

"The interference with the plaintiff's religious practices by the defendants in violation of SDCL 22-19B-4 and 20-9-32."

[¶ 6.] Defendants moved to dismiss under SDCL 15-6-12(b)(5) for failure to state a claim upon which relief can be granted. The circuit court dismissed the federal constitutional and conspiracy claims, concluding that the statute of limitations had expired as to Best, and tolling did not apply because Sisney did not assert fraud in connection with those claims. The court further concluded that Sisney did not assert facts sufficient to support his remaining federal claims. The court finally concluded that Sisney either did not assert sufficient facts or relied on inapplicable statutes to support his state law claims. Sisney now appeals the dismissal and the denial of an opportunity to amend his pleadings.

II

[¶ 7.] We have followed the Supreme Court's Conley test to determine whether a complaint fails to state a claim upon which relief can be granted.

754 N.W.2d 808

The test most often applied is found in the leading case of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957): In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Schlosser v. Norwest Bank S.D., 506 N.W.2d 416, 418 (S.D.1993). Recently, however, the Supreme Court abrogated the Conley "no set of facts" standard. Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).1 "[T]he Court retired the generous and often disparaged `no set of facts' language because it permitted an `approach to pleading [that] would dispense with any showing of a reasonably founded hope that a plaintiff would be able to make a case.'" Leventhal v. Schaffer, 2008 WL 111301, *2 (N.D.Iowa 2008) (citing Bell Atlantic, ___ U.S. at ___, 127 S.Ct. at 1968-69). Bell Atlantic replaced the Conley standard with the following:

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 (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level[.] [T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]

Bell Atlantic, ___ U.S. at ___, 127 S.Ct. at 1964-65 (citations omitted). The Supreme Court explained:

While, for most types of cases, the Federal Rules eliminated the cumbersome requirement that a claimant "set out in detail the facts upon which he bases his claim," Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (emphasis added), Rule 8(a)(2) still requires a "showing," rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only "fair notice" of the nature of the claim, but also "grounds" on which the claim rests. See 5 Wright & Miller [Federal Practice and Procedure: Civil 3d] § 1202, at 94, 95 (Rule 8(a) "contemplate[s] the statement of circumstances, occurrences, and events in support of the claim presented" and does not authorize a pleader's "bare averment that he wants relief and is entitled to it").

Id. at ___, 127 S.Ct. at 1965 n. 3.

[¶ 8.] Because SDCL 15-6-8(a)2

754 N.W.2d 809

also requires a "showing" that the pleader is "entitled" to relief, we adopt the Supreme Court's new standards. We continue to accept the material allegations as true and construe them in a light most favorable to the pleader to determine whether the allegations allow relief. Fenske Media Corp. v. Banta Corp., 2004 SD 23, ¶ 7, 676 N.W.2d 390, 392-93. Because that determination tests the legal sufficiency of the pleading, we review the matter de novo. Elkjer v. City of Rapid City, 2005 SD 45, ¶ 6, 695 N.W.2d 235, 238.

III
A
Whether Sisney's 42 U.S.C. §§ 1983 and 1985 claims against Best were time barred.

[¶ 9.] Federal civil rights actions must be brought within three years after the alleged constitutional deprivation occurred. SDCL 15-2-15.2 (providing "[a]ny action brought under the federal civil rights statutes may be commenced only within three years after the alleged constitutional deprivation has occurred"). Sisney alleged that Best was the food service provider at SDSP until July 31, 2002. Sisney's suit was commenced on May 14, 2007, more than four years after Best provided food services. Therefore, Sisney's federal claims against Best were untimely.

[¶ 10.] Sisney, however, argues that the statute of limitations was tolled by SDCL 15-2-3. That statute provides: "In an action for relief on the ground of fraud the cause of action shall not be deemed to have accrued until the aggrieved party discovers, or has actual or constructive notice of, the facts constituting the fraud." SDCL 15-2-3. Sisney's reliance on SDCL 15-2-3 is misplaced because Sisney did not seek relief based upon fraud in connection with his constitutional claims under 42 U.S.C. §§ 1983 and 1985.3 The circuit

754 N.W.2d 810

court correctly dismissed the federal claims against Best as untimely.

B
Whether Sisney asserted sufficient facts regarding the remaining Defendants under 42 U.S.C. § 1983 or § 1985.

[¶ 11.] Sisney pleaded that he may have been deprived of kosher bread, and therefore the remaining Defendants violated his rights "guaranteed under the U.S. and South Dakota constitutions." See supra ¶ 5. Sisney did not, however, identify which provisions of the state or federal constitutions were allegedly violated. More importantly, in his 42 U.S.C. § 1983 action against individual non-state actors, Sisney failed to plead the requirement that those...

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22 practice notes
  • Young v. Wells Fargo & Co., No. 4:08-cv-507 RP-CFB.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • October 27, 2009
    ...of SDCL § 37-24-6 arises from deceptive practices in connection with the sale or advertisement of merchandise. Sisney v. Best Inc., 754 N.W.2d 804, 811 (S.D.2008). "Any person who claims to have been adversely affected by any act or a practice declared to be unlawful by § 37-24-6 shall be p......
  • Gruhlke v. Sioux Empire Fed. Credit Union, No. 24579.
    • United States
    • Supreme Court of South Dakota
    • September 10, 2008
    ...requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do...." Sisney v. Best, 2008 SD 70, ¶ 7, 754 N.W.2d 804 (citing Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (internal citatio......
  • Sturgis Motorcycle Rally, Inc. v. Rushmore Photo & Gifts, Inc., No. 17-1762
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 2, 2018
    ...in connection with the sale or advertisement of any merchandise." See S.D. Codified Laws § 37-24-6(1) ; see also Sisney v. Best Inc. , 754 N.W.2d 804, 811 (S.D. 2008). The jury found that all of the defendants, except JRE, had engaged in deceptive trade practices, awarding SMRI $107,500 in ......
  • Webb v. Nashville Area Habitat For Humanity Inc., No. M2009–01552–SC–R11–CV.
    • United States
    • Supreme Court of Tennessee
    • July 21, 2011
    ...Ford Motor Co., 451 Mass. 623, 888 N.E.2d 879, 890 (2008) (adopting the Twombly standard in a pre- Iqbal decision), Sisney v. Best Inc., 754 N.W.2d 804, 807–09 (S.D.2008) (adopting the Twombly standard in a pre- Iqbal decision). FN7. See also Kenneth S. Klein, Ashcroft v. Iqbal Crashes Rule......
  • Request a trial to view additional results
21 cases
  • Young v. Wells Fargo & Co., No. 4:08-cv-507 RP-CFB.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • October 27, 2009
    ...of SDCL § 37-24-6 arises from deceptive practices in connection with the sale or advertisement of merchandise. Sisney v. Best Inc., 754 N.W.2d 804, 811 (S.D.2008). "Any person who claims to have been adversely affected by any act or a practice declared to be unlawful by § 37-24-6 shall be p......
  • Gruhlke v. Sioux Empire Fed. Credit Union, No. 24579.
    • United States
    • Supreme Court of South Dakota
    • September 10, 2008
    ...requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do...." Sisney v. Best, 2008 SD 70, ¶ 7, 754 N.W.2d 804 (citing Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (internal citatio......
  • Sturgis Motorcycle Rally, Inc. v. Rushmore Photo & Gifts, Inc., No. 17-1762
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 2, 2018
    ...in connection with the sale or advertisement of any merchandise." See S.D. Codified Laws § 37-24-6(1) ; see also Sisney v. Best Inc. , 754 N.W.2d 804, 811 (S.D. 2008). The jury found that all of the defendants, except JRE, had engaged in deceptive trade practices, awarding SMRI $107,500 in ......
  • Webb v. Nashville Area Habitat For Humanity Inc., No. M2009–01552–SC–R11–CV.
    • United States
    • Supreme Court of Tennessee
    • July 21, 2011
    ...Ford Motor Co., 451 Mass. 623, 888 N.E.2d 879, 890 (2008) (adopting the Twombly standard in a pre- Iqbal decision), Sisney v. Best Inc., 754 N.W.2d 804, 807–09 (S.D.2008) (adopting the Twombly standard in a pre- Iqbal decision). FN7. See also Kenneth S. Klein, Ashcroft v. Iqbal Crashes Rule......
  • Request a trial to view additional results

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