Moeller v. Weber

Filing 166

MEMORANDUM OPINION AND ORDER granting 157 Motion for Leave amend complaint and add additional defendants. Signed by U. S. District Judge Lawrence L. Piersol on 4/22/11. (JMM)

FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

APR 2 2 2011
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CLERK

SOUTHERN DIVISION
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CIV. 04-4200
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MEMORANDUM OPINION AND
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ORDER RE: MOTION FOR LEAVE
Plaintiff,
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TO AMEND COMPLAINT AND
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FOR JOINDER OF ADDITIONAL
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DEFENDANTS

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UGLAS WEBER, Warden,
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uth Dakota State Penitentiary,
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Defendant.
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DONALD

MOELLER,

Plaintiff Donald Moeller has moved the Court pursuant to Rules 15(a)(2), 19(a) and 20(a) of
Federal Rules of Civil Procedure for leave of Court to amend his Complaint and for joinder of
ad itional defendants. Doc. 157. Defendant Weber resists the motion.
On December 5, 2007, Mr. Moeller filed a Third Amended Petition for Writ of Habeas
C rpus and a Complaint for Declaratory and Injunctive Relief. The Complaint for Declaratory and
In unctive Reliefwas based on alleged constitutional deficiencies and defects in South Dakota's death
p alty statutes and protocol. On March 31,2009, this Court severed Moeller's Section 1983 claims
fo declaratory and injunctive relief from the habeas petition and denied habeas relief. Doc. 105.
A er this Court denied Moeller's Rule 59(e) motion, Moeller appealed the denial of habeas relief
to the Eighth Circuit Court of Appeals. That appeal is pending. Moeller's motion seeks joinder of
de endants and the amendment of his claim for declaratory and injunctive relief under 42 U.S.C. §
1983.
Moeller points out that since the filing ofhis Section 1983 Complaint in 2007, South Dakota's
death penalty protocol has been amended at least once, the only United States Federal Drug
Administration approved source ofsodium thiopental ceased production ofthe drug, and new counsel
replaced Moeller's prior counsel. In addition, the death penalty statute in issue has been revised at
le!:).gt once. Defendant contends that since this Court severed the Section 1983 claims from the habeas

clJim the motion to amend should be denied and that Moeller should be ordered to file his proposed
antended complaint as a new and independent cause ofaction. Defendant also contends that the Court
mJy lack jurisdiction to allow and consider an amended complaint since the habeas cause of action
is on appeal. Moeller points out that both parties have already amended the caption of the case to
reflect that Moeller is a plaintiff and not a petitioner, and that Warden Weber is a defendant and not
a respondent. This measure and identifYing the title ofthe document as amending the cause ofaction

fot declaratory and injunctive relief suffice to remedy any clerical record clarity concerns that exist
at this time.
Prior to the time the habeas cause of action was severed from the cause of action for
de laratory and injunctive relief, both parties supported severance ofthe two causes of action. Doc.
10 . Severance was both advisable and allowable under FED. R. CIV. P. 21. A single claim, severed
fr m a lawsuit, proceeds as a discrete, independent action over which a the trial court may render
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aI, appealable judgment, and the unresolved claims continue to exist in the remaining action. E.S.

v. ndependent School Dist., No. 196, Rosemount-Apple Vallley-Egan v. Johnson, 135 F.3d 566, 569
(8 h Cir. 1998). Amending the remaining cause of action in this case will not jeopardize the Court's
cise ofjurisdiction over that claim.
Federal Rule ofCivil Procedure 15(a) provides thatthedistrict court "should freely give leave
[t amend pleadings] when justice so requires." Whether to grant a motion for leave to amend is
wi hin the sound discretion ofthe court. Gamma-10 Plastics, Inc. v. Am. President Lines, Ltd., 32
F. d 1244,1255 (8thCir. 1992) (citing Foman v. Davis, 371 U.S. 178, 182,83 S.Ct. 227,230,9

L. d.2d (1962»). Factors a court should take into consideration in evaluating a motion to amend
in lude whether the amendment would unduly prejudice the non-moving party or would be futile.

Se McAninch v. Wintermute, 491 F.3d 759, 766 (8th Cir. 2007) (citing KozohorslQ; v. Harmon, 332
F. d 1141, 1144 (8th Cir. 2003)).
Federal Rule of Civil Procedure 19 provides for required joinder ofparties when:
(A) in that person's absence, the court cannot accord complete relief among existing
parties; or
(B) that person claims an interest relating to the subject of the action and is so
situated that disposing of the action in the person's absence may:
(i) as a practical matter impair or impede the person's ability to protect the interest;
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or
(ii) leave an existing party subject to a substantial risk of incurring double, multiple,
or otherwise inconsistent obligations because of the interest.
Federal Rule of Civil Procedure 20 allows for permissive joinder of defendants if:
(A) any right to reliefis asserted against them jointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
Defendant contends that the South Dakota Department of Corrections, a proposed new
deftjIldant in Moeller's proposed amended cause of action, is not a party which should be joined in
thi~laction

because it is not a person for the purpose of 42 U.S.C. § 1983 and is not a proper

def,ndant in this cause of action. This Court agrees. In Ex parte Young, 209 U. S. 123 (1908), the
Supreme Court established an important limit on the sovereign-immunity principle that absent
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wail·er or valid abrogation, federal courts may not entertain a private person's suit against a State.
The Ex parte Young doctrine provides that because an unconstitutional legislative enactment is
"vo d," a state official who enforces an unconstitutional legislative enactment "comes into conflict
witli the superior authority of [the] Constitution," and therefore is "stripped of his official or

rep~· sentative character and is subjected in his person to the consequences ofhis individual conduct.
The State has no power to impart to him any immunity from responsibility to the supreme authority
oft e United States." 209 U. S., at 159-160. Recently the Supreme Court held that the Ex parte

Yotg doctrine allows a federal court to hear a case seeking prospective relief against state officials
brofght by another agency of the same State. See Virginia Office for Protection and Advocacy v.

Ste~art, _

S.Ct._, 2011 WL 1466121 (April 19, 2011). In that case the Supreme Court

reitrrated the limitations ofthe doctrine when it stated that the Ex Parte Young doctrine "rests on the
prerise-Iess delicately called a 'fiction,' ... -that when a federal court commands a state official
to do nothing more than refrain from violating federal law, he is not the State for
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sovf!reign-immunity purposes. The doctrine is limited to that precise situation, and does not apply

'w~en "the state is the real, substantial party in interest.'"

" 20111 WL 1466121 at *6 (quoting

Pe~nhurst State School and Hospital v. Halderman, 465 U.S. 89, 107 (I 984)(quoting Ford Motor
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Co. v. Department ofTreasury ofInd. , 323 U.S. 459, 464 (1945)). The Ex parte Young doctrine does
not apply to a state or its agencies, see Nix v. Norman, 879 F.2d 429,432 (8th Cir. 1989), and there
is no evidence of the State waiving its immunity in this case. Therefore, it would be futile to allow
an amendment of the Section 1983 claim to include the addition of the South Dakota Department
ofCprrections as a defendant.That portion of the motion for leave to amend is denied.
Defendant also contends that the remaining proposed new defendants are not necessary

part~s and that Moeller's motion should be denied on that basis. After reviewing the contents of
M011er's proposed amended cause of action and the requirements of FED. R. elY. P. 20, the Court
con9ludes that the remaining proposed new defendants would be appropriately joined under the
pe1issive joinder statute. The Court further concludes after reviewing the proposed amendments
and ~fter considering the changes which have taken place since the original cause of action for
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decl ratory and injunctive relief was filed, that the interests of justice support granting leave to
ame d as set forth in this memorandum opinion. Defendant can then assert any challenges and
defe ses it may have with regard to the amended pleadings.

IT IS SO ORDERED.
Dated

thiS~~y of April, 2011.
BY THE COURT:

ATTEST:

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EPUTY

wrence L. Piersol
nited States District Judge

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