Flugge v. Hollenbeck et al
ORDER granting 9 Motion to Dismiss for Failure to State a Claim. See text of Order for details. Signed by Chief Judge Leonard T Strand on 6/19/17. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
RALPH LEROY FLUGGE, JR.,
RICHARD K. HOLLENBECK,
individually and in his official capacity as
a Deputy Sheriff for Howard County,
Iowa, HOWARD COUNTY, IOWA,
MARC WATERLANDER, in his
individual and official capacities as a
Conservation Officer for the State of Iowa,
and THE STATE OF IOWA,
This case is before me on a motion (Doc. No. 9) by defendants Marc Waterlander
and the State of Iowa (State) to dismiss plaintiff Ralph Leroy Flugge, Jr.’s claims against
them. Flugge has filed a resistance (Doc. No. 11) and the movants have filed a reply
(Doc. No. 12). No party has requested oral argument and, in any event, I find that oral
argument is not necessary. See N.D. Ia. L.R. 7(c).
The complaint includes the following allegations:
On November 16, 2014, Flugge called Waterlander to complain that a deer had
been illegally shot on his property. Doc. No. 2 at 4. Waterlander was unable to respond,
but referred the matter to other conservation officers who met with Flugge on his
property. Id. On December 7 and 10, 2014, Flugge contacted the Howard County
Sheriff’s Department and the Iowa Department of Natural Resources and again
complained about vehicles trespassing on his property for the purpose of poaching wild
game deer. Id. at 5. Hollenbeck and Waterlander met with Flugge on December 7. Id.
Hollenbeck met with Flugge again on December 10. Id. at 6. Meanwhile, Waterlander
received information from multiple sources that Flugge was dissatisfied with the officers’
response to his complaints and had made threatening statements with regard to
trespassers. See id. at 5-7 (“Flugge was very upset and stating that he was going to take
the law into his own hands because Flugge knew they were not going to do anything with
his complaints.”); (Flugge “stated he was 62 years-old and was not concerned if he had
to go to prison and would just take care of the problem himself.”).
On December 12, 2014, Waterlander applied for a search warrant based on the
alleged threatening statements. Id. at 2-8. That same day, Flugge was charged with
Felony Threat of Terrorism in violation of Iowa Code § 708A.5 based on those alleged
statements.1 Id. at 9. On August 20, 2015, the State of Iowa voluntarily dismissed the
charge. Id. at 9.
Flugge filed this action on December 9, 2016, asserting four counts:
Count I – Constitutional violations brought pursuant to 42 U.S.C. §
1983 against Hollenbeck (both individually and in his official
capacity as a Deputy Sheriff for Howard County, Iowa); Howard
County, Iowa; Waterlander (both individually and in his official
capacity as a conservation officer for the State);2 and the State.
Count II – Conspiracy claim brought pursuant to 42 U.S.C. § 1983
against Hollenbeck and Waterlander.
A person who threatens to commit terrorism or threatens to cause terrorism to be committed
and who causes a reasonable expectation or fear of the imminent commission of such an act of
terrorism commits a class “D” felony. Iowa Code § 708A.5.
All claims against Hollenbeck and Waterlander are brought against them in their individual and
Count III – State law claim of false arrest against Hollenbeck and
Howard County, Iowa.
Count IV – State law claim of malicious prosecution against
Hollenbeck and Howard County, Iowa.
Id. at 9, 13, 15-16. The State and Waterlander (in his official capacity) argue Counts I
and II against them should be dismissed based on Eleventh Amendment immunity.3
The Federal Rules of Civil Procedure authorize a pre-answer motion to dismiss
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
The Supreme Court has provided the following guidance in considering whether a
pleading properly states a claim:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled
to relief.” As the Court held in [Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007)], the pleading standard Rule
8 announces but does not require “detailed factual allegations,” but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation. Id., at 555, 127 S. Ct. 1955 (citing Papasan v. Allain, 478
U.S. 265, 286, 106 S. Ct. 2932, 92 L.Ed.2d 209 (1986)). A pleading that
offers “labels and conclusions” or “a formulaic recitation of the elements
of a cause of action will not do.” 550 U.S. at 555, 127 S. Ct. 1955. Nor
does a complaint suffice if it tenders “naked assertion[s]” devoid of “further
factual enhancement.” Id., at 557, 127 S. Ct. 1955.
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Id., at 570, 127 S. Ct. 1955. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the
While Count II is not expressly directed against the State, for the reasons set forth below a
claim against a state employee in that employee’s official capacity is akin to a claim against the
state. Thus, I will treat Count II as if it is also directed against the State.
reasonable inference that the defendant is liable for the misconduct alleged.
Id., at 556, 127 S. Ct. 1955. The plausibility standard is not akin to a
“probability requirement,” but it asks for more than a sheer possibility that
a defendant has acted unlawfully. Ibid. Where a complaint pleads facts
that are “merely consistent with” a defendant's liability, it “stops short of
the line between possibility and plausibility of ‘entitlement to relief.’ ” Id.,
at 557, 127 S. Ct. 1955 (brackets omitted).
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).
Courts assess “plausibility” by “‘draw[ing] on [their own] judicial experience and
common sense.’” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting
Iqbal, 556 U.S. at 679). Also, courts “‘review the plausibility of the plaintiff's claim as
a whole, not the plausibility of each individual allegation.’” Id. (quoting Zoltek Corp. v.
Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010)).
“plausibility” is typically the focus of a Rule 12(b)(6) motion to dismiss, federal courts
may dismiss a claim that lacks a cognizable legal theory. See, e.g., Somers v. Apple,
Inc., 729 F.3d 953, 959 (9th Cir. 2013); Ball v. Famiglio, 726 F.3d 448, 469 (3d Cir.
2013); Commonwealth Prop. Advocates, L.L.C. v. Mortg. Elec. Registration Sys., Inc.,
680 F.3d 1194, 1202 (10th Cir. 2011); accord Target Training Intern., Ltd. v. Lee, 1 F.
Supp. 3d 927, 937 (N.D. Iowa 2014).
The State and Waterlander (in his official capacity) seek dismissal of Counts I and
II against them on grounds that those claims are barred by the Eleventh Amendment4 of
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. It also bars suits against a State by citizens of that same State. See
Papasan v. Allain, 478 U.S. 265, 276 (1986).
the United States Constitution.
See Doc. No. 9-1.
I will address the Eleventh
Amendment’s applicability to each party separately.
Flugge argues that the Eleventh Amendment does not bar his claims against the
State because Iowa has formally waived Eleventh Amendment protections in the Iowa
State Tort Claims Act. See Doc. No. 11 (citing Iowa Code § 669.4).5 “Section 1983
provides a federal forum to remedy many deprivations of civil liberties, but it does not
provide a federal forum for litigants who seek a remedy against a State for alleged
deprivations of civil liberties. The Eleventh Amendment bars such suits unless the State
has waived its immunity.”6 Will v. Michigan Dep't of State Police, 491 U.S. 58, 66
(1989). The Eighth Circuit Court of Appeals has explained that a state’s waiver of
sovereign immunity must be clear and unequivocal:
“The test for determining whether a State has waived its immunity from
federal court jurisdiction is a stringent one.” Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). A
State “is deemed to have waived its immunity only where stated by the most
express language or by such overwhelming implication from the text as will
leave no room for any other reasonable construction.” Id. at 239–40, 105
Flugge also seems to imply that I should be reticent to grant the motion to dismiss because the
State may later substitute itself as a party in the place of Waterlander under Iowa Code § 669.5.
See Doc. No. 11 at 2 (“Because [it] ha[s] yet to decide [whether to substitute itself as a defendant]
. . . it would be premature to dismiss [the State of Iowa] as a party.”). It is unclear as to why
Section 669.5 should factor into the analysis. The statute provides that if the Attorney General
of Iowa confirms that a defendant is a state employee acting within the scope of his or her office
or employment at the time of the incident, the suit “shall be deemed an action against the state”
and “if the state is not already a defendant, the state shall be substituted as the defendant in the
place of the employee.” Iowa Code § 669.5. Therefore, the State has no discretion in the matter
and could be substituted for Waterlander later regardless of whether it is dismissed now.
The Eleventh Amendment’s bar against suits may also be overridden when Congress
“exercise[s] its undoubted power under § 5 of the Fourteenth Amendment to override that
immunity.” Will, 491 U.S. at 66. That said, “Congress, in passing § 1983, had no intention to
disturb the States' Eleventh Amendment immunity.” Id.
S.Ct. 3142. “The interests of Federalism require that such a waiver be
clear and unequivocal.” Burk v. Beene, 948 F.2d 489, 493 (8th Cir.1991).
Importantly, “[a] State's general waiver of sovereign immunity is
insufficient to waive Eleventh Amendment immunity; the state must specify
an intent to subject itself to federal court jurisdiction.” Santee Sioux Tribe
of Neb. v. Nebraska, 121 F.3d 427, 431 (8th Cir.1997) (emphasis added).
Cooper v. St. Cloud State Univ., 226 F.3d 964, 969 (8th Cir. 2000).
This court has, on multiple occasions within the context of Section 1983 actions,
rejected arguments that Iowa Code § 669.4 contains the stringent language required to
waive sovereign immunity. See, e.g., Jacobsen v. Dep't of Transp., 332 F. Supp. 2d
1217, 1230 (N.D. Iowa 2004), aff'd, 450 F.3d 778 (8th Cir. 2006); Nunley v. Erdmann,
No. C14-4016-MWB, 2014 WL 5020253, at *7 (N.D. Iowa Oct. 8, 2014), report and
recommendation adopted, No. C 14-4016-MWB, 2014 WL 7345780 (N.D. Iowa Dec.
23, 2014) (same). This court has so ruled because “[t]he plain language of [§] 669.4
limits waiver of Iowa's sovereign immunity to lawsuits brought in Iowa state courts.”
Jacobsen, 332 F. Supp. 2d at 1229-30 (emphasis added). As a result, “the court cannot
find that § 669.4 provides an express waiver of Eleventh Amendment immunity to suits
against the state in federal court.” Id. at 1230 (emphasis added). Counts I and II against
the State must be dismissed.
Waterlander (Official Capacity)
Because I have ruled that the State has not waived Eleventh Amendment immunity
with regard to Section 1983 actions brought in federal court, the only remaining issue is
whether that immunity extends to state actors in their official capacities. It does. “[A]
suit against a state official in his or her official capacity is not a suit against the official
but rather is a suit against the official's office.” Will, 491 U.S. 58 (1989). “As such, it
is no different from a suit against the State itself.” Id.; see also Alsbrook v. City of
Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (commissioners of Arkansas Commission
on Law Enforcement Standards and Training could not be subject to Section 1983 suits
in their official capacities “because such suit is no different from a suit against the state
itself”). Accordingly, Counts I and II against Waterlander in his official capacity must
also be dismissed.
For the reasons set forth herein, the motion (Doc. No. 9) to dismiss is granted,
Counts I and II, as asserted against defendant the State of Iowa, are
dismissed. Because those counts contain the only claims directed at the State, the State
of Iowa is hereby dismissed as a party to this action.
Counts I and II, as asserted against defendant Marc Waterlander in his
official capacity, are dismissed. Those counts remain pending against Waterlander in
his individual capacity.
IT IS SO ORDERED.
DATED this 19th day of June, 2017.
Leonard T. Strand, Chief Judge
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