Moeller v. Weber
AMENDED MEMORANDUM OPINION AND ORDER re Rule 41(a)(1)(A)(ii) Stipulation Signed by U. S. District Judge Lawrence L. Piersol on 10/23/12. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
OCT 23 2012
DONALD E. MOELLER,
-vsDOUGLAS WEBER, Warden,
South Dakota State Penitentiary,
DENNIS KAEMINGK, Secretary of
the South Dakota Department of
Corrections in his official capacity,
and DOES 1-20, unknown employees or
agents ofthe South Dakota Department
MEMORANDUM OPINION AND
ORDER RE: RULE 41 (a)(1)(A)(ii)
On October 2,2012, counsel for Defendants and Attorney Mark F. Marshall filed a stipulation
for dismissal ofthis 1983 civil rights action pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii). Doc. 353.
Attorney Mark F. Marshall has represented Moeller in state court and represented Moeller at the time
this federal action was commenced. The Court denied a motion from appointed counsel for Moeller
from the office of the Arkansas Federal Public Defenders (appointed counsel) seeking an order
striking the Notice 0 f Appearance filed by Mark Marshall and directing the clerk not to accept further
filings fromMr. Marshall in this matter. Doc. 358. Appointed counsel for Moeller has filed a number
of motions to strike or vacate the stipulation for dismissal. Doc. 354, 355, 357. Appointed counsel
for Moeller has also filed an emergency motion for appointment ofnext friend or guardian ad litem
in this action. Doc. 361. The Court held a hearing on October 4, 2012, at which Moeller was present,
and the Court questioned Moeller regarding his positions and the reasoning behind his positions on
his representation and the dismissal of his 1983 civil rights action.
After the October 4,2012 hearing, Moeller wrote this Court and stated, "I am writing you
so that my intention is unmistakable. I do not want to be represented by the Arkansas Federal Public
Defender. I ask that you terminated (sic) their representation of me immediately." Doc. 369.
Appointed counsel for Moeller also submitted additional affidavits in support of their position
opposing the stipulation for dismissal and supporting the appointment of a guardian ad litem to act
on Moeller's behalf in this action. Appointed counsel has also filed a response to Moeller's recent
letter to the Court. The Court has now carefully considered all of the pleadings, supporting
documents, testimony and arguments concerning the stipulation for dismissal.
Stipulation for Dismissal Under Fed. R. Civ. P. 41(a)(l)(A)(ii)
A plaintiffs right to dismiss by stipulation pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) is
normally both absolute and unconditional. See 8 JAMES WM. MOORE ET AL., MOORE'S FEDERAL
PRACTICE' 41.31 (3d ed. 2012). A voluntary stipulation under Fed. R. Civ. P. 41(a)(l)(A)(ii),
therefore does not ordinarily require court approval. Courts, however, have relied upon their inherent
power to look behind a stipulation to dismiss to determine whether there has been improper conduct
which gave rise to the stipulation and to make certain that the stipulation 0 f dismissal was vo luntary.
See, e.g., United States v. Mercedes-Benz ofNorth America, Inc., 547 F.Supp. 399, 400 (D.C. Cal.
1982). Given the gravity ofthe consequences of a dismissal in this action, the disagreement between
appointed counsel and Attorney Mark Marshall on whether the stipUlation to dismiss should have
been filed, and the allegations challenging Moeller's competency, the Court determined that it had
the right and duty to look behind the stipulation and determine whether the stipulation was
competent, voluntary and intelligent from Moeller's perspective.
Voluntary and Intelligent Dismissal of Civil Rights Action on Constitutionality ofLethal Injection
The cases which have been called to the Court's attention concerning a competent waiver by
a death-row inmate ofhis federal action have all dealt with habeas corpus petitions filed pursuant to
28 U.S.C. § 2254. While those cases are instructive, the Court is not aware of authority deeming
those cases controlling in an action such as the one presented here where Moeller was challenging
the method of execution in a 1983 civil rights action. In determining the validity of a waiver of a
death-row inmate's action under 28 U.S.C. § 2254, a court must evaluate the inmate's competency
because a waiver would bar further federal court review as to the validity ofthe inmate's conviction.
Moeller, however, has already unsuccessfully appealed from this Court's denial ofhis habeas corpus
petition under 28 U.S.C. § 2254, and Moeller's petition for writ of certiorari has been denied. See
Moellerv. Weber, 649 F.3d 839 (8th Cir. 2011), cert. denied, 132 S.Ct. 2735 (June 4, 2012). Moeller
has received full federal review concerning the validity of his conviction.
In Rees v. Peyton, 384 U.S. 312, 314 (1966), the Supreme Court held the where a death-row
inmate had directed his counsel to withdraw his petition for certiorari to Supreme Court to review a
court ofappeals decision rejecting his claim, the district court in which the habeas corpus proceeding
had been commenced should determine whether the inmate had the capacity to appreciate his position
and make a rational choice with respect to continuing or abandoning further litigation, or whether the
inmate was suffering from a mental disease, disorder or defect which might substantially affect that
capacity. See also Smith v. Armontrout, 812 F.2d 1050, 1056 (8th Cir.1987). InNoonerv. Norris, 402
F.3d 801,804 (8th Cir. 2005), the Eighth Circuit explained that in reviewing a district court's factual
finding that a death-row inmate was competent to withdraw his habeas petition, the "inquiry is
two-fold. First, we examine whether the defendant has the rational ability to understand the
proceedings. [citations omitted] Second, we consider whether the defendant's waiver was knowing
and voluntary, i.e., whether the defendant actually understood the significance and consequences of
his waiver and whether the waiver was uncoerced."
The Court finds that Moeller has the capacity to appreciate his position and make a rational
choice with respect to continuing his 1983 civil rights action. During the Court's extensive questioning
of Moeller, he was at all times articulate and coherent with regard to the nature of his civil rights
action and the consequences of abandoning the action. Furthermore, Moeller admitted kidnapping,
raping and murdering Rebecca O'Connell, and expressed his beliefthat he had done an evil thing in
raping and killing "that little girl," and that he had to pay for his actions. Moeller explained, "If the
rape and murder ofRebecca O'Connell does not deserve the death penalty, then I guess nothing does."
Moeller was also able to explain in general terms how he would be executed by lethal injection
and explain in specific terms when the execution was scheduled to take place. Moeller also testified
that he was aware of appointed counsel's claims that the implementation of the protocol would not
go smoothly and would subject Moeller to more than a little pain.
The record contains information that Moeller had suffered from a traumatic childhood which
most likely led to depression and anxiety. The record also contains information that Moeller has in the
past been diagnosed with a schizotypal personality disorder and a personality disorder with schizo typal
traits. However, Moeller is not under the care of a psychologist or psychiatrist, nor is he taking any
medication for mental illness. Moeller also testified that his appointed counsel had him evaluated by
a psychiatrist in August of2011 and that Moeller was not found to be insane. This Court finds that
even ifMoeller suffers from a mental disease, disorder or defect, the mental disease, disorder or defect
did not substantially affect his capacity to make a competent decision to dismiss this 1983 civil rights
action. Moeller fully comprehends the consequences of the stipulation to dismiss this action and is
adamant that the stipulation to dismiss be upheld.
Appointed counsel has submitted materials concerning the solitary and isolated conditions of
Moeller's long confinement and made argument that the conditions of Moeller's confinement have
rendered his decision to dismiss this action involuntary. Moeller, however, descnbed his routine on
death row and demonstrated that in spite of the isolation he has made a sane life in his "house," by
cleaning, reading, writing, listening to the radio, and watching television programs and movies. The
Court finds that the conditions of Moeller's confinement do not render his decision to dismiss this
The Court finds that Moeller's decision to dismiss this action was uncoerced. Although
Attorney Marshall prepared and signed the stipulation ofdismissal, this action was taken at Moeller's
direction. Both Moeller and Attorney Marshall testified that Marshall does not personally agree with
the decision and does not want to see Moeller executed. Moeller also testified that his desire to
abandon this lawsuit has existed from before the time counsel from Arkansas was appointed on his
case, but that he did not act on the desire at that time because his stepmother was ill and he did not
want ro "add any crap on her."
This Court appreciates appointed counsel's position that "[u]nder the American Bar
Association's Model Rule 0 fPro fessional Conduct 1.14 and South Dakota's Ethics Rule 1.14 ('Client
with Diminished Capacity'), [appointed counsel] is obligated to take reasonable, protective measures
on a client's behalf ifcounsel reasonably believes the client has 'diminished capacity' and 'is at risk of
substantial physical, financial or other harrn.'" Doc. 371. However, Rule ofProfessional Conduct 1.2
provides "a lawyer shall abide by a client's decisions concerning the objectives of representation."
Since May ofthis year Moeller has attempted to fire appointed counsel. Moeller claims, ''They are only
working for their own agenda. I do not believe they are working for me." At the time the stipulation
for dismissal was entered into, Attorney Marshall was the only counsel operating as counsel for
Moeller in that he was abiding by Moeller's will in acting to end this litigation.' In consideration of
Moeller's competent and uncoerced decision to terminate this litigation and the deterioration ofthe
relationship between Moeller and appointed counsel, the Court is terminating the appointment ofthe
Arkansas Federal Public Defender as counsel for Moeller.
In conclusion, the Court finds that Moeller was and is competent to stipulate to dismiss this
1983 civil rights litigation concerning South Dakota's death penalty protocol and that his decision to
enter into that stipulation was voluntary and intelligent. Accordingly,
IT IS HEREBY ORDERED:
1. That all motions to strike or vacate the stipulation for dismissal (Doc. 354, 355, 357) are
2. That the emergency motion for appointment ofnext friend or guardian ad litem in this action
(Doc. 361) is denied;
3. That the appointment of the Arkansas Federal Public Defender as counsel for Moeller is
4. That the StipUlation for Dismissal shall operate as contemplated under Fed. R. Civ. P.
41 (a)(l )(A)(ii).
a?)- day ofOctober, 2012, nunc pro tunc to October 9,2012, filed October 10,
BY THE COURT:
United States District Judge
'As was observed by the Supreme Court of Kentucky, "Adhering to a defendant's choice
to seek the death penalty honors the last vestiges 0 f personal dignity available to such a
defendant."Chapman v. Commonwealth, 265 S.W.3d 156, 175-176 (Ky.2007).
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