Stanko v. S.D. Highway Patrol

• Decision Date: 28 March 2018
• Docket Number: CIV. 17-5022-JLV
• Parties: RUDY STANKO, a/k/a "Butch," Plaintiff, v. SOUTH DAKOTA HIGHWAY PATROL; HIGHWAY PATROLMAN KEVIN MOSER, individually and in his official capacity; RYAN TALLEY, individually; MONTE DROPPERS, individually and in his official capacity; DEFENDANTS IX through 3X, individually, will be named after discovery, Defendants.
• Court: U.S. District Court — District of South Dakota

RUDY STANKO, a/k/a "Butch," Plaintiff, v. SOUTH DAKOTA HIGHWAY PATROL;

HIGHWAY PATROLMAN KEVIN MOSER,

individually and in his official capacity;

RYAN TALLEY, individually; MONTE DROPPERS,

individually and in his official capacity; DEFENDANTS IX through 3X,

individually, will be named after discovery, Defendants.

CIV. 17-5022-JLV

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION

March 28, 2018

ORDER

INTRODUCTION

Plaintiff Rudy Stanko filed a multi-count complaint against the defendants under the Civil Rights Act, 42 U.S.C. § 1983, and state law.¹ (Docket 1). The named defendants all filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) or 12(b)(6). (Dockets 9, 12 & 15). For the reasons stated below, defendants' motions to dismiss are granted.

ANALYSIS

Defendant South Dakota Highway Patrol seeks dismissal from the complaint pursuant to Fed. R. Civ. P. 12(b)(1). (Docket 9). The remaining defendants seek dismissal on the basis of Fed. R. Civ. P. 12(b)(6). (Dockets 9, 12 & 15).

I. RULE 12(b)(1) MOTION TO DISMISS

Rule 12 provides in part that "a party may assert the following defenses by motion: . . . lack of subject-matter jurisdiction . . . ." Fed. R. Civ. P. 12(b)(1). "In order to properly dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the complaint must be successfully challenged on its face or on the factual truthfulness of its averments." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (internal citation omitted). "In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion [to dismiss] is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Id. (internal citation omitted). While considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction the court must "accept all factual allegations in the pleadings as true and view them in the light most favorable to the nonmoving party." Great Rivers Habitat Alliance v. Federal Emergency Management Agency, 615 F.3d 985, 988 (8th Cir. 2010). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

"The burden of proving federal jurisdiction, however, is on the party seeking to establish it, and this burden may not be shifted to the other party." Great Rivers Habitat Alliance, 615 F.3d at 988 (internal quotation marks and brackets omitted). "The burden of establishing that a cause of action lies within the limited jurisdiction of the federal courts is on the party asserting jurisdiction . . . ." Arkansas Blue Cross & Blue Shield v. Little Rock Cardiology Clinic, P.A., 551 F.3d 812, 816 (8th Cir. 2009).

The South Dakota Highway Patrol seeks dismissal because, as a division within the South Dakota Department of Public Safety, it and the State of South Dakota are protected from suit by the Eleventh Amendment. (Docket 10 at pp. 7-8). The Highway Patrol also argues it is not a " 'person' amenable to suit brought pursuant to 42 U.S.C. § 1983." Id. at p. 7. Plaintiff's responsive brief does not specifically address the propriety of the Rule 12(b)(1) motion. (Docket 17).

"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). "As the [United States] Supreme Court remind[s] us, 'a State is not a 'person' against whom a § 1983 claim for money damages might be asserted.' " McLean v. Gordon, 548 F.3d 613, 618 (8th Cir. 2008) (citing Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002)). "[T]he Eleventh Amendment bars suit against the state or state officials acting in their official capacity." Morstad v. Department of Corrections and Rehabilitation, 147 F.3d 741, 743 (8th Cir. 1998)(referencing Kentucky v. Graham, 473 U.S. 159, 169 (1985)). A suit will be allowed to proceed, however, if the state has waived immunity. See id. at 744. The State has not waived its immunity to suit under the Eleventh Amendment. The court grants defendants' motion as it relates to the South Dakota Highway Patrol. (Docket 9). Plaintiff's complaint against the South Dakota Highway Patrol is dismissed under Rule 12(b)(1).

II. RULE 12(b)(6) 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 ofthe 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.

Courts are not required to accept as true legal conclusions "couched as . . . factual allegation[s]" in the complaint. Id. at 678. "[A] complaint must allege 'more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.' " Torti v. Hoag, 868 F.3d 666, 671 (8th Cir. 2017) (quoting Twombly, 550 U.S. at 555).

"When ruling on a motion to dismiss under Rule[] 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).

In applying these principles, the court must construe plaintiff's pro se complaint liberally. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). This means "that if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe thecomplaint in a way that permits the layperson's claim to be considered within the proper legal framework." Jackson v. Nixon, 747 F.3d 537, 544 (8th Cir. 2014) (internal quotation marks omitted). The complaint "still must allege sufficient facts to support the claims advanced." Stone, 364 F.3d at 914.

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

Count 1: Violation of plaintiff's Fourth Amendment right against unreasonable seizures. (Docket 1 at p. 8);

Count 3: Violation of plaintiff's Fourteenth Amendment rights to due process. Id.;

Count 6: Tort claims for violations of plaintiff's rights under the full faith and credit clause of Article IV of the Constitution of the United States. Id. at p. 9;

Count 7: Tort claims for violations of federal and state law. Id. at p. 10; and

Count 8: A tort claim for violation of the common law offense of theft. Id. at p. 10.

The following factual summary is gleaned from the allegations of the complaint. On March 20, 2017, Mr. Kemerling was driving a livestock truck on State Highway 34 near Whitewood, South Dakota. (Docket 1 ¶¶ 18 & 30). South Dakota State Highway Patrol Trooper Moser stopped the vehicle. Id. ¶ 19. Mr. Kemerling was instructed to drive to a nearby commercial parking lot so the truck could be weighed with a set of portable scales. Id. ¶ 24. Trooper Moser claimed the gross weight of the truck and its contents was over 80,000 pounds.Id. ¶ 36. Mr. Stanko alleges the truck was not overweight because its gross weight was less than 85,500 pounds. Id. ¶¶ 27-28. Trooper Moser "tried to extort $700 from . . . Stanko by setting the bail on the truck driver, impound[ing] his truck, and tak[ing] his driver to jail." Id. ¶ 40. Trooper Moser, "[w]ithout obtaining a probable cause warrant to seize the truck and livestock . . . hired truck driver and defendant Ryan Talley to seize and stole [sic] . . . Stanko's truck and cattle." Id. ¶ 45. Trooper Moser instructed Mr. Talley that "the cattle to [sic] be hauled to St. Onge livestock and to be sold." Id. ¶ 46.

At the Meade County Jail in Sturgis, South Dakota, Jailer Monte Droppers "accepted . . . Kemerling without a constitutional probable cause oath taken of facts before a Circuit/Magistrate Judge." Id. ¶ 44. Mr. Stanko went to the jail and posted a $565 bond to get Mr. Kemerling out of jail. Id. ¶ 47. When Mr. Stanko asked for the "probable cause oath to arrest and jail his driver," Jailer Dropper said "that neither Moser or himself needed an arrest warrant or probable cause oath to throw . . . Kemerling in jail." Id. ¶¶ 48 & 51.

Mr. Stanko believes Mr. Talley "stole the truck and parked and hid it off the road a few miles from Whitewood." Id. ¶ 55. "[Mr.] Stanko found his truck 15 miles away hid in a back...