Kroupa v. 4-H et al

Filing 35

ORDER granting in part 9 Motion to Dismiss; granting in part 18 Motion for Preliminary Injunction. Defendants are enjoined from interfering with B.K.'s participation in any 4-H activities until further order of the court. Signed by Chief Judge Karen E. Schreier on 7/12/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
B.K., a minor, through Greg Kroupa,
her guardian ad litem,

)
)
)
Plaintiff,
)
)
vs.
)
)
4-H, a South Dakota Unincorporated
)
Association;
)
PETER A. NIELSON, individually and
)
in his official capacity as Assistant
)
Director of 4-H Youth Development;
)
ROD GEPPERT, individually and in
)
his official capacity as Brule County
)
Extension 4-H representative;
)
JOHN DOES, of the South Dakota 4-H )
Livestock Ethics Committee
)
unidentified in any communication
)
from the other Defendants or in the
)
2011 South Dakota 4-H Division
)
Handbook of the South Dakota
)
Cooperative Extension Service in their )
individual and official capacities; and
)
MARY DOES, of the South Dakota 4-H )
Livestock Ethics Committee
)
unidentified in any communication
)
from the other Defendants or in the
)
2011 South Dakota 4-H Division
)
Handbook of the South Dakota
)
Cooperative Extension Service in their )
individual and official capacities,
)
)
Defendants.
)

CIV. 12-4046-KES

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS IN PART AND
GRANTING PLAINTIFF’S MOTION
FOR A PRELIMINARY INJUNCTION
IN PART

Plaintiff, B.K., a minor, through Greg Kroupa, her father and guardian ad
litem, brought suit against defendants, 4-H, Peter Nielson, Rod Geppert, John

Does, and Mary Does1 in their individual and official capacities, alleging
violations of her First, Fourth, Fifth, and Fourteenth Amendment rights under
42 U.S.C. § 1983 after she was banned from participating in 4-H exhibition
shows. Defendants move to dismiss B.K.’s claims against 4-H and against
Nielson and Geppert in their official capacities, which plaintiff opposes. B.K.
moves for a preliminary injunction to enjoin defendants from precluding B.K.’s
participation in 4-H and to refrain from interfering with B.K.’s participation in
4-H activities, which defendants oppose. On June 8, 2012, the court conducted
a hearing on the motions and allowed the parties to submit supplemental briefs.
BACKGROUND FACTS
The pertinent facts to this order are as follows:
Greg Kroupa and his wife have four children, all of whom have
participated or currently participate in 4-H. Tr. 9:14-15.2 Two of the children,
including B.K., still participate in the Brule County, South Dakota, 4-H
program. Tr. 9:15; Tr. 16:17-21. B.K. is currently 16 years old. Tr. 9:17-18.
Greg testified that “[t]here’s not a more competitive family in the state, let alone
in the union, that’s been more successful than my children have been at
national levels as well as the state competition.” Tr. 10:4-7. According to Greg,
his family is “the only family in South Dakota that has ever won at a national

1

Because the John Does and Mary Does were not identified as of the
time of the preliminary injunction, B.K.’s claims against these defendants are
not addressed in this order.
2

All citations are to the transcript from the hearing. Docket 32.
2

steer show level in Denver National Western in 2008.” Tr. 11:4-5. Beyond 4-H,
the family is also involved in breeding animals, which is part of Greg’s business.
Tr. 11:6-10.
B.K. has been involved with 4-H since she was eight years old. Tr. 43:1920. She used to be involved with sports, but she had to choose between sports
and 4-H. Tr. 43:24-44:5. B.K. testified that she “made the choice to do 4-H,
because that’s what meant the most to me.” Tr. 44:4-5. B.K. is also involved
with FFA (Future Farmers of America), FCCLA (Future Career and Community
Leaders of America), and FBLA (Future Business Leaders of America). Tr. 44:816. The school provides excused absences for 4-H events and congratulates
students who do well at 4-H events, but 4-H is not a school-run program. Tr.
17-24. B.K. hopes to take over the family farm and business one day. Tr. 46:
14-16.
Winning a livestock competition sometimes includes a monetary award.
For example, a Sale of Champions award can be substantial, such as the
$110,000 award that one of Greg’s other daughters won at the Sale of
Champions in Denver. Tr. 26:24-27:3. In approximately 2009, B.K. won
$22,000 at the NAILE Louisville Livestock Show for a reserve champion steer,
and she put the $22,000 into her college fund. Tr. 46:7-13. The South Dakota
State Fair is a terminal event, meaning that after the animal is shown, it must
be sold for slaughter; it may not be used for breeding purposes. Tr. 38:11-18.

3

The total award at the South Dakota State Fair for a champion animal is the
value of the carcass and a $500 cash award. Tr. 26:13-27:3; Tr. 28:11-20.
The South Dakota State Fair took place from September 1 through
September 6, 2011, and B.K. participated in the swine event. Tr. 11:11-13:18.
One of the pigs that B.K. showed was named Moe, a crossbreed belted barrow.
Tr. 13:18-14:25.
The family bought Moe from Aaron Cooper, who trades in show pig
prospects, at a mutual acquaintance’s farm in Nebraska. Tr. 39:9-40:6. Neither
B.K. nor Greg maintained records of Moe’s sale. Tr. 40:15-41:6. B.K. trained
Moe to drive by giving him marshmallows as a treat if he successfully completed
the exercise. Tr. 13:20-14:4; Tr. 45:21-24; Tr. 55:22-56:13 (“[Y]ou use the term
‘driving,’ because when you hit him on his jowl, he will move whichever
direction you put him in.”). Moe received reserve grand honors for the entire 4-H
division, and he was the champion market barrow at the FFA show at the fair’s
conclusion. Tr. 14:9-13.
After the fair, B.K. received e-mails, text messages, and Facebook
messages from 4-H members stating that B.K. did not care for Moe, she was a
cheater, a liar, and a hypocrite, and she was not a good 4-H leader. Tr. 17:2518:1; Tr. 47:12-21. B.K. found these messages to be hurtful, and she eventually
deleted her Facebook account due to the hurtful messages. Tr. 48:2-5. B.K. told
her parents about the comments. Tr. 48:12-19.

4

Greg called Geppert about the harassment. Tr. 18:17-24. Geppert told
Greg that he would speak with Nielson and get back to Greg. Tr. 19:6-9. Greg
had a phone call with Geppert, and possibly also Nielson, regarding the
situation. Tr. 19:10-21:1. Greg testified that the family did not have any other
contact with either Geppert or Nielson until the family received a letter dated
October 3, 2011, from Nielson. Exhibit 2; Docket 25-1. The letter stated that
B.K. was banned from 4-H:
This letter is to inform you that you will no longer be allowed to
participate in South Dakota 4-H exhibition programs. When you
enrolled in the South Dakota 4-H program, you and your
parent/guardian signed the South Dakota 4-H Code of Conduct
Policy and Procedures document agreeing to certain behaviors at all
4-H events and activities (4-H821). The code notified you that those
who have been found to have violated the code of ethics “will forfeit
premiums and awards and may be prohibited from future
exhibitions.” The code also required that you as an exhibitor “. . .
affirm that . . . [you] . . . have owned and/or cared for . . . your . . .
project animal. . . .” It also goes on to say that, “Misrepresentations
of ownership, age, identification numbers or facts relating thereto is
prohibited.” After being shown pictures on September 9, 2011, your
father, Mr. Greg Kroupa, admitted to Mr. Rod Geppert and then, to
Mr. Peter Nielson that you have not owned or cared for your recent
swine entry for the project season. He also admitted that your swine
entry had been submitted and competed in this year’s Missouri
State Fair. The South Dakota 4-H Livestock Ethics Committee met
on September 20, 2011 and concluded that you misrepresented the
ownership of this animal and violated the code of ethics.
Based on the events surrounding the misrepresentation of
ownership of your Reserve Champion Over-all 4-H Market Swine
entry, the State 4-H Office has permanently removed you from the
South Dakota 4-H exhibition program and any future eligibility or
participation in such programs. In addition, you are ineligible to
receive any awards of premium monies from the 4-H Swine Project
or 4-H Beef Project areas of the 2011 South Dakota State Fair. The
South Dakota 4-H program takes the Behavioral Expectations and
5

Code of Conduct outlined in 4-H821 very seriously and does not
take this action lightly.
Exhibit 2; Docket 25-1.
In an affidavit, Nielson stated he, along with Geppert, investigated
whether B.K. had violated 4-H’s ethics. Docket 25 ¶ 4. Nielson maintains that
when he “confronted Greg Kroupa, [Greg] admitted the swine had been shown
in the Missouri State Fair and that B.K. had not owned or cared for B.K.’s
recent swine entry for the project season[.]” Docket 25 ¶ 5.
During the hearing, Greg and B.K. maintained that B.K. cared for Moe,
and Greg contended that he did not tell Nielson and Geppert otherwise. Tr.
23:11-24:13; Tr. 50:7-15; Tr. 45:16-20. Greg further asserted that Moe did not
compete in the Missouri State Fair. Tr. 24:5-8.
Neither B.K. nor Greg received notification that the Livestock Ethics
Committee was going to meet on September 20, 2011. Tr. 24:15-18; Tr. 50:1951:2. B.K. never received the opportunity to appear before the Ethics
Committee, but Greg received a text message from Geppert stating that the
matter “was under an Advisory Committee hands[.]” Tr. 24:19-23. After the
Ethics Committee made its decision, Greg met with Nielson to determine if a
compromise could be reached, and Nielson informed him that the decision was
final. Tr. 25:23-26:7. Nielson did not identify the Ethics Committee’s members
for Greg. Tr. 26:6-12. B.K. has never met Nielson. Tr. 51:9-15.
Dawn Cable is one of B.K.’s 4-H leaders for Brule County. Tr. 58:1-22.
Geppert sent Cable a text message stating that B.K. had been banned from
6

shows. Tr. 59:6-60:1. Geppert told Cable to contact Nielson with questions, but
she never did. Tr. 59:25-60:3. In her 27 years of experience with 4-H, Cable had
never heard of a student being banned from showing animals. Tr. 61:3-5.
While B.K. is banned from showing her animals and participating in
events, she is still considered to be a member of 4-H. Tr. 49:13-22. B.K. is also
a member of FFA and may attend shows with FFA, but some major shows will
not let her show her animals because she is banned from 4-H. Tr. 53:22-54:12
(“[I]f you have been banned from 4-H, even if you are in FFA, you still cannot
exhibit.”).
DISCUSSION
I.

Motion to Dismiss
A.

Standard of Review

The local rules require a party to specify “the Federal Rule of Civil
Procedure on the basis of which the motion is made.” D.S.D. LR 7.1B. In their
motion, defendants move to dismiss under Rule 12 but do not specify under
which provision of Rule 12 their motion is made. During oral argument, the
court asked defendants if they were moving under Rule 12(b)(1). Tr. 99:1-3.
Defendants stated that they were making a facial and factual motion under Rule
12(b)(1). Tr. 99:5-19.
Federal Rule of Civil Procedure 12(b)(1) provides that the court may
dismiss an action for lack of subject matter jurisdiction. Rule 12(b)(1) “is rooted
in the unique nature of the jurisdictional question.” Osborn v. United States, 918

7

F.2d 724, 729 (8th Cir. 1990) (quotation omitted). The Court of Appeals for the
Eighth Circuit has drawn a distinction between facial and factual 12(b)(1)
motions, explaining the applicable standard in each instance. See id. at 728-30.
Because the court needs to examine the facts to determine jurisdiction, the
court will use the Rule 12(b)(1) factual standard, which provides that
the trial court may proceed as it never could under 12(b)(6) or Fed.
R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the
trial court’s jurisdiction—its very power to hear the case—there is
substantial authority that the trial court is free to weigh the
evidence and satisfy itself as to the existence of its power to hear
the case. In short, no presumptive truthfulness attaches to the
plaintiff’s allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself the merits
of jurisdictional claims.
Id. at 730 (quotation omitted). In determining a Rule 12(b)(1) motion, the court
may look to evidence outside the pleadings. Id. Reviewing outside evidence
under Rule 12(b)(1) does not convert the motion into a Rule 56(c) summary
judgment motion like reviewing outside evidence does in the context of a Rule
12(b)(6) motion to dismiss or a Rule 12(c) motion for judgment on the pleadings.
Deuser v. Vecera, 139 F.3d 1190, 1192 n.3 (8th Cir. 1998).
The plaintiff bears the burden to establish that subject matter jurisdiction
exists. V S Ltd. P’ship v. Dep’t of Hous. & Urban Dev., 235 F.3d 1109, 1112 (8th
Cir. 2000) (citing Nucor Corp. v. Neb. Pub. Power Dist., 891 F.2d 1343, 1346 (8th
Cir. 1989)). If the court finds that subject matter jurisdiction is lacking, it must
dismiss the case. Fed. R. Civ. P. 12(h)(3); Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 583-84 (1999) (citations omitted).

8

B.

Discussion

Defendants move to dismiss B.K.’s claims against 4-H pursuant to
Federal Rule of Civil Procedure 17(b)(3) because 4-H does not have the capacity
to sue and be sued. Defendants also move to dismiss B.K.’s claims against
Nielson and Geppert in their official capacities under the sovereign immunity
doctrine.
1.

Motion to Dismiss 4-H

Federal Rule of Civil Procedure 17(b) governs whether an entity has the
power to sue and be sued. 4-H is not an individual or a corporation, so Rules
17(b)(1) and (2) do not apply. Instead, Rule 17(b)(3), which covers “all other
parties,” controls. Rule 17(b)(3) provides that “[c]apacity to sue or be sued is
determined . . . by the law of the state where the court is located[.]”
The parties first dispute whether 4-H is a federal or state program. B.K.
contends that 4-H is “a federal program run through the State’s land grant
university.” Docket 16 at 1.3 Defendants assert that “[b]ecause 4-H is a

3

B.K. also argues that “[t]he issue of whether the extension service is
part of a land grant college was decided in the case of Jones v. Erickson, 244 P
287 (MT 1926) [sic].” Docket 16 at 2. Jones determined that under Montana
law, the extension service was separate from the agricultural college. 244 P. at
296-97. The statute cited by the court in Jones does not have a citation and a
1971 Montana statute concerning the agricultural experiment station differs
from the wording cited in Jones. Thus, the passage of the 1971 statute may
challenge the validity of Jones. More importantly, this court must look to South
Dakota law, not Montana law, in determining whether 4-H is a state entity.
Fed. R. Civ. P. 17(b)(3). The court has reviewed B.K.’s other arguments on this
issue and finds them to be unpersuasive.
9

program of SDSU [South Dakota State University], it is not amenable to suit.”
Docket 10 at 2.
In 1862, Congress passed the Morrill Land-Grant Act of 1862. 7 U.S.C.
§§ 301-309. In 1890, Congress passed the Morrill Act of 1890, which is also
known as the Agricultural College Act of 1890. 7 U.S.C. §§ 321-329. Congress
granted “an amount of public land” to the states to be used for land grant
colleges. 7 U.S.C. § 301. South Dakota agreed “to all the provisions of” and the
“terms and conditions” associated with the land grant act. SDCL 13-54-8.
South Dakota designated SDSU as its “land grant” college. SDCL 13-54-1.
In the Smith-Lever Act of 1914, Congress provided that the state land
colleges should be engaged in “[c]ooperative agricultural extension work,”
including educating the public on agriculture and home economics. 7 U.S.C.
§ 342. “Agricultural sciences” includes 4-H clubs. 7 U.S.C. § 3103(9)(L).
Congress provided that the Secretary of Agriculture and the state’s land-grant,
agricultural college should mutually agree upon how the program should be
run. 7 U.S.C. § 342. Congress also provided a funding scheme for the extension
program, which each state must match. See generally 7 U.S.C. § 343 (providing
the funding scheme for the extension programs).
The South Dakota legislature has stated that SDSU, through the Board
of Regents, will oversee the 4-H program for South Dakota:
The provisions of an act of Congress entitled, “An Act to establish
agricultural extension departments in connection with agricultural
colleges in the several states receiving the benefits of an act of
Congress,” [7 U.S.C. § 341] having been accepted by this state, the
10

Board of Regents is authorized and directed to maintain at South
Dakota State University an extension department for the purposes
of giving instruction and demonstration in agriculture and home
economics to persons not attending such university.
SDCL 13-54-1. The South Dakota legislature has further stated that “[i]t shall
be the duty of the Board of Regents of Education to organize and conduct
agricultural extension work as provided by said act of Congress in connection
with other agricultural extension work carried on by the South Dakota State
University.” SDCL 13-54-9.
More recently, the South Dakota Attorney General reiterated that “[t]he
South Dakota Cooperative Extension Services operates under the direction of
the South Dakota State University.” Hearing Ex. 4. Re: Federal Law Implications
of Budget Cuts to the South Dakota Cooperative Extension Service, S.D. Atty’s
Gen. Op. No. 11-03 (June 17, 2011), 2011 WL 2685583. Stewards of Progress4
states that the SDSU extension service program provides educational
programming for leaders of 4-H, technological support for all 4-H management
and programs, and a 50 percent time 4-H advisor for counties with 2,500
youth or more. Stewards of Progress at 12. SDSU, through its College of
Agricultural and Biological Services, facilitates the 4-H program for South
Dakota.

4

Hearing Ex. 5. College of Agriculture & Biological Sciences, South
Dakota State University, Stewards of Progress, SDSU Extension (April 2011),
https://www.sdstate.edu/abs/iGrow/upload/Stewards-of-Progress.pdf
[hereinafter Stewards of Progress].
11

Thus, 4-H is a state program facilitated by SDSU and overseen by the
Board of Regents. This conclusion is consistent with the conclusion of other
courts that have addressed the issue. See, e.g., Gorman-Bakos v. Cornell Coop.
Extension of Schenectady Cnty., 252 F.3d 545, 552 (2d Cir. 2001) (reasoning
that an extension program ran by a land-grant college was “a creature of the
state which voluntarily carries out state functions with state
encouragement[.]”); Wade v. Miss. Coop. Extension Serv., 424 F. Supp. 1242,
1256 (N.D. Miss. 1976) (reasoning that if the state university and its governing
board “are entitled to the protection of the Eleventh Amendment, it is only
logical to conclude that [the extension service] is likewise afforded immunity,
for [the extension services] is merely an operating division of [the state college]
and controlled by the Board.” (citing Miss. Cod. Ann. § 37-113-19 (1972))).
Because 4-H is a state entity, South Dakota law determines whether 4-H
can sue or be sued. Fed. R. Civ. P. 17(b)(3). There is no South Dakota law
stating whether 4-H can sue or be sued. When the state statute is silent on
whether a state entity can sue or be sued,5 then that entity is not amenable to
suit under Rule 17(b)(3) and dismissal is appropriate. See, e.g., Lundquist v.
Univ. of S.D. Sanford Sch. of Med., No. 09-4147, 2011 WL 5326074, at *5

5

The Board of Regents has the power to sue and be sued under South
Dakota law. SDCL 13-49-11. But there is no South Dakota law stating that
SDSU has the power to sue and be sued. See SDCL 13-58 (containing the
statutes related to SDSU but not stating whether SDSU has the power to sue
and be sued). The Board of Regents’ power to sue and be sued does not extend
to SDSU, Pushkin v. S.D. State Univ., No. 10-4108-KES, 2010 WL 5089480, at
*2 (D.S.D. Dec. 8, 2010), and, thus, would not extend to 4-H.
12

(D.S.D. Nov. 4, 2011) (dismissing the action and reasoning that “[n]othing in
S.D.C.L. 13–57 gives USD or its medical school the ability to sue or be sued.
Rather, the Board of Regents, which controls USD Sanford School of Medicine,
has the power to sue and be sued under S.D.C.L. 13–49–11.”); Pushkin v. S.D.
State Univ., No. 10-4108-KES, 2010 WL 5089480, at *2 (D.S.D. Dec. 8, 2010)
(reasoning because “SDSU lacks the capacity to be sued under South Dakota
law,” dismissal of plaintiff’s claims against SDSU was proper); see also Brown
v. Fifth Judicial Distr. Drug. Task Force, 255 F.3d 475, 476–77 (8th Cir. 2001)
(affirming dismissal for failure to state a claim against multi-governmental unit
based on the entity’s lack of capacity to sue under state law); Lazarescu v. Ariz.
State Univ., 230 F.R.D. 596, 602 (D. Ariz. 2005) (affirming the dismissal of a
complaint against Arizona State University because it had not been granted the
power to sue or be sued); Rivas v. State Bd. for Cmty. Colleges & Occupational
Educ., 517 F. Supp. 467, 470 (D. Colo. 1981) (holding that claims against the
college council must be dismissed where it was not granted the power to sue
and be sued). Thus, defendants’ motion to dismiss the claims against 4-H is
granted.
2.

Motion to Dismiss Nielson and Geppert

Defendants contend that sovereign immunity bars B.K.’s claims against
Nielson and Geppert in their official capacities. B.K. responds that “Nielson and
Geppert are not state employees for the purposes of” 42 U.S.C. § 1983. Docket
16 at 3.

13

The Eleventh Amendment provides that “[t]he 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. Sovereign immunity extends to all entities that are considered arms
of the state and state actors in their official capacities. Regents of the Univ. of
Cal. v. Doe, 519 U.S. 425, 429-30 (1997).
The Eighth Circuit and the South Dakota Supreme Court have held that
the Board of Regents is a political subdivision of the state and, as such, is
entitled to sovereign immunity, meaning that it cannot be sued under § 1983.
See Prostrollo v. Univ. of S.D., 507 F.2d 775, 777 n.1 (8th Cir. 1974) (reasoning
that “it is fundamental that the University of South Dakota and the corporate
body constituting the Board of Regents, both political subdivisions of the state,
may not be sued under the Civil Rights Act since neither entity constitutes a
‘person’ within the meaning of § 1983.” (citations omitted)); Aase v. S.D. Bd. of
Regents, 400 N.W.2d 269, 271 (S.D. 1987) (holding “that the Board of Regents
is not a person within the meaning of 42 U.S.C. § 1983 . . . and may not be
sued under that section.” (citations omitted)); Kringen v. Shea, 333 N.W.2d 445,
446 (S.D. 1983) (reasoning that the Board of Regents is entitled to sovereign
immunity). The Board of Regents controls SDSU and, thus, SDSU is also
entitled to sovereign immunity. See Prostrollo, 507 F.2d at 777 n.1 (reasoning
that the University of South Dakota, which the Board of Regents controls,

14

cannot be sued under § 1983); see also Pushkin, 2010 WL 5089480, at *2
(reasoning that “SDSU lacks the capacity to be sued under South Dakota
law[.]”). Officials of a state entity entitled to sovereign immunity are also
entitled to sovereign immunity for claims of monetary damages against them in
their official capacities. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989).
Geppert’s W-2 tax forms state that “South Dakota State University” is his
employer. See Docket 30, 30-1. Nielson’s W-2 forms were not submitted, but
B.K.’s attorney acknowledged that Nielson was most likely a state employee:
THE COURT: What about Mr. Nielson? Isn’t he a state employee?
MR. PEKAS: Mr. Nielson, without any discovery being done in this
particular case, Your Honor, I would have to, with the affidavit that
was submitted, I would believe that he is a state employee.
Docket 32; Tr. 81:19-23. The referenced affidavit is a letter sent by Nielson on
cooperative extension letterhead.6 Docket 25-1. The mailing, email, and website
addresses all list SDSU. Docket 25-1. Nielson is the assistant director for 4-H
youth development. Docket 25-1. Thus, it appears that Nielson is a state
employee. Because Nielson and Geppert are employed by SDSU and SDSU is
entitled to sovereign immunity, Nielson and Geppert are also entitled to
sovereign immunity regarding B.K.’s claim for monetary damages against them
in their official capacities.

6

All of the letters from 4-H in the record are on a specific letterhead with
SDSU’s logo in the upper left hand corner and “South Dakota Extension
Service” printed to the right of the logo.
15

The court will next examine whether B.K. can obtain prospective
injunctive relief against Nielson and Geppert in their official capacities. In her
complaint, B.K. seeks injunctive relief “barring the Defendants from keeping
her from full participation in 4-H in good standing.” Docket 1 ¶ 42; see also
Docket 18 at 1 (moving for an injunction to enjoin “Defendants to reinstate
[B.K.] and to refrain from interfering with . . . B.K.’s participation in any 4-H
activities.”).
While defendants in their motion to dismiss do not distinguish between
B.K.’s claims for monetary and injunctive relief against Nielson and Geppert in
their official capacities, the United States Supreme Court has recognized a
distinction. In Will v. Michigan Department of State Police, 491 U.S. 58 (1989),
the Supreme Court reasoned that “[o]f course a state official in his or her
official capacity, when sued for injunctive relief, would be a person under
§ 1983 because ‘official-capacity actions for prospective relief are not treated as
actions against the State.’ ” Id. at 71 n.10 (quoting Kentucky v. Graham, 473
U.S. 159, 167 n.15 (1985)) (citing Ex parte Young, 209 U.S. 123, 159-60
(1908)). “This distinction is commonplace in sovereign immunity doctrine, and
would not have been foreign to the 19th-century Congress that enacted
§ 1983.” Id. (citations omitted); see also Randolph v. Rodgers, 253 F.3d 342,
345 (8th Cir. 2001) (“Ex parte Young and its progeny teach that a private party
may seek prospective injunctive relief in federal court against a state official,
even if the state is otherwise protected by Eleventh Amendment immunity.”

16

(citing Green v. Mansour, 474 U.S. 64, 68 (1985))). Thus, defendants’ motion to
dismiss B.K.’s claims for monetary damages from Nielson and Geppert in their
official capacities is granted but, to the extent that defendants move to dismiss
B.K.’s claims for injunctive relief from Nielson and Geppert in their official
capacities, that motion is denied.
II.

Preliminary Injunction
B.K.’s remaining claims are her claims for injunctive relief against

Nielson and Geppert in their official and individual capacities and her claims
for monetary damages against Nielson and Geppert in their individual
capacities.7 Only the injunctive relief is at issue in this order.
“A preliminary injunction is an extraordinary remedy, and the burden of
establishing the propriety of an injunction is on the movant.” Watkins Inc. v.
Lewis, 346 F.3d 841, 845 (8th Cir. 2003) (citations omitted). The moving party
must make the familiar four-part showing before the court issues a preliminary
injunction: (1) the threat of irreparable harm by the movant; (2) the balance
between this harm and the injury that granting the injunction will inflict on the
other parties; (3) the probability that the movant will succeed on the merits;

7

Defendants did not move to dismiss B.K.’s claims against Nielson and
Geppert in their individual capacities. State officials sued in their individual
capacities are amenable to suit under § 1983, including claims for monetary
damages. Hafer v. Melo, 502 U.S. 21, 30-31 (1991). “[S]tate officers are
personally liable for their conduct if sued in an individual capacity. In
individual-capacity suits, the Eleventh Amendment does not bar compensatory
damages, or punitive damages.” Nix v. Norman, 879 F.2d 429, 433 n.3 (8th Cir.
1989) (citations omitted).
17

and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109,
114 (8th Cir. 1981). This is a flexible analysis. Hubbard Feeds, Inc. v. Animal
Feed Supplement, Inc., 182 F.3d 598, 601 (8th Cir. 1999).
A.

Success on the Merits

Probability of the success on the merits is a critical factor in determining
whether a court should issue a preliminary injunction. Lankford v. Sherman,
451 F.3d 496, 507 (8th Cir. 2006). “Probability of success on the merits” means
that the moving party must show “a ‘fair chance’ of success on the merits[.]”
Planned Parenthood of Minn, N.D., S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir.
2006) (quoting Heartland Acad. Cmty. Ch. v. Waddle, 335 F.3d 684, 690 (8th
Cir. 2003)). A “fair chance of prevailing” does not require a greater than 50
percent likelihood of prevailing on the merits. See id. at 731 (quoting
Dataphase, 640 F.2d at 113). B.K. bears the burden to prove that she has a fair
chance of success in showing that defendants are liable under § 1983 for a
violation of her constitutional rights.
Section 1983 provides a civil cause of action against any person who,
under color of state law, causes a deprivation of rights, privileges, or
immunities secured by the Constitution and laws of the United States. 42
U.S.C. § 1983; McRaven v. Sanders, 577 F.3d 974, 979 (8th Cir. 2009). B.K.
alleges that defendants violated her First, Fourth, Fifth, and Fourteenth
Amendment rights. Because the court determines that B.K. has shown she has

18

a fair chance of succeeding on her procedural due process claim, the court will
only address that claim in this order.
B.K. asserts a claim for injunctive relief against Nielson and Geppert in
their individual and official capacities. The court will analyze the official
capacity claims because the relief that B.K. seeks on her procedural due
process claim, the ability to continue participating in 4-H, would be provided in
Nielson’s and Geppert’s official, not individual, capacities.
The Fourteenth Amendment protects against a state depriving an
individual of her liberty or property interest without due process of law. Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972). Before B.K. can argue
that defendants violated her due process rights, she must identify the right at
issue. See id. In Roth, the Supreme Court outlined the requirements for finding
a property interest:
To have a property interest in a benefit, a person clearly must have
more than an abstract need or desire for it. He must have more
than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it. It is a purpose of the ancient
institution of property to protect those claims upon which people
rely in their daily lives, reliance that must not be arbitrarily
undermined. It is a purpose of the constitutional right to a hearing
to provide an opportunity for a person to vendicate [sic] those
claims.
Property interests, of course, are not created by the Constitution.
Rather they are created and their dimensions are defined by
existing rules or understandings that stem from an independent
source such as state law-rules or understandings that secure
certain benefits and that support claims of entitlement to those
benefits.
Id. at 577.
19

During the hearing, B.K.’s attorney argued that “the administrative rules
in the State of South Dakota would govern the process involved with whether
or not you are going to take away a person’s abilities to access Federal
benefits.” Docket 32; Tr. 89:3-7. B.K.’s attorney also argued that the United
States Department of Agriculture or federal Administrative Procedures Act
(APA) would provide the right under the due process analysis. Docket 32; Tr.
89:3-90:15. The court allowed B.K. to brief the issue of whether any provision
in the APA applies.
In her brief, B.K. argues that the APA applies and must be followed
before she can be expelled “from the federal program.” Docket 31 at 2; see also
Docket 32; Tr. 80:8-11 (“I believe this is a Federal program, as the testimony
indicated today. That people have a right and privileges under Federal law.”).
But 4-H is an arm of the state. B.K. cites no precedent stating that the federal
APA applies to an arm of the state.8
South Dakota has statutory “Administrative Procedure and Rules,” SDCL
1-26 (SDAPA), which provides for notice and a hearing in certain
circumstances: “In a contested case, all parties shall be afforded an

8

The federal APA likely does not apply to a state entity. See, e.g., Heard
Commc’ns, Inc. v. Bi-State Development Agency, 18 Fed. App’x 438, 439-40 (8th
Cir. 2001) (reasoning that because a bi-state transportation agency was not a
quasi-federal agency, the federal APA did not apply to a contract dispute);
Denison v. Kitzhaber, No. 00-833-BR, 2001 U.S. Dist. LEXIS 12514, at *10-11
(D. Or. July 24, 2001) (“The APA does not create a private cause of action
against or a right of review over a state agency or state actors. . . . [T]he APA
does not create substantive rights.” (citations omitted)).
20

opportunity for hearing after reasonable notice.” SDCL 1-26-16. A “contested
case”9 is
a proceeding, including rate-making and licensing, in which the
legal rights, duties, or privileges of a party are required by law to
be determined by an agency after an opportunity for hearing but
the term does not include the proceedings relating to rule making
other than rate-making, proceedings related to inmate disciplinary
matters as defined in § 1-15-20, or student academic or
disciplinary proceedings under the jurisdiction of the Board of
Regents or complaints brought by students attending institutions
controlled by the Board of Regents about their residency
classification under §§ 13-53-23 to 13-53-41, inclusive[.]
SDCL 1-26-1(2).
“Rules of statutory construction require that the Court must read
statutes together and to the extent possible, give effect to all language.” Banner
Health Sys. v. Long, 663 N.W.2d 242, 247 (S.D. 2003). “The purpose of
statutory construction is to interpret the true intention of the law, which is to
be construed primarily from the plain meaning of the statute.” In re Estate of
Howe, 689 N.W.2d 22, 31 (S.D. 2004) (citing Appeal of AT & T Info. Sys., 405
N.W.2d 24, 28 (S.D. 1987)). Thus, the court will construe the statutes by giving
plain meaning to all applicable sections.
1.

Exclusionary Language of SDCL 1-26-1(2)

The court first addresses the exclusionary portion of SDCL 1-26-1, which
states that “student academic or disciplinary proceedings under the

9

A “contested case” is “an adjudicatory hearing as opposed to a quasilegislative or rule making proceeding.” In re Union Carbide Corp., 308 N.W.2d
753, 757 (S.D. 1981).
21

jurisdiction of the Board of Regents” is excluded from the contested case
definition.10 Defendants contends that B.K.’s case falls under this exclusionary
language. Docket 34 at 4-5 n.1.
The Board of Regents oversees SDSU, which in turn operates the
extension service, which in turn operates 4-H. There is no indication that the
Board of Regents oversees either the day-to-day or the disciplinary proceedings
of 4-H. Instead, all of the evidence suggests that 4-H is run by a board of
directors paid through SDSU and volunteers. See Docket 1-3 at 7 (listing 4-H’s
directors as of 2011); Hearing Ex.1, “South Dakota Youth Development/4-H
Behavioral Expectations at County, State and National Events” (containing the
rules for events issued by 4-H, printed on 4-H letterhead); Stewards of Progress
at 1 (stating that the advisory committee members “represent a broad crosssection of county- and state-level Extension experience, as well as Extension
experience from other states.”).
Defendants argue “that SDSU’s Extension Service is under the authority
of the Board of Regents and the fact this is a ‘disciplinary proceeding’ by the
Extension Service seems to show the [SDAPA] is inapplicable.” Docket 34 at 5
n.1. The Board of Regents does have statutory authority to oversee the 4-H
program. SDCL 13-54-1; 13-54-9. But there is no indication in the record that
the Board of Regents has jurisdiction over a 4-H disciplinary proceeding.

10

The final clause, addressing complaints brought by students attending
institutions controlled by the Board of Regents, is not at issue here.
22

According to Nielson’s letter dated October 3, 2011, the “South Dakota 4-H
Livestock Ethics Committee,” not the Board of Regents, investigated B.K.’s case
“and concluded that [she] misrepresented ownership of this animal [Moe] and
violated the code of ethics.” Exhibit 2; Docket 25-1 (emphasis added). After
receiving that information, the “State 4-H office . . . permanently removed [B.K.]
from the South Dakota 4-H exhibition program and any future eligibility or
participation in such programs.” Hearing Ex. 2; Docket 25-1 (emphasis added).
Nielson’s letter does not state that the Board of Regents participated in either
B.K.’s disciplinary proceeding or the decision to ban her from 4-H exhibition
programs. There is no indication in the record that the Board of Regents
controls 4-H’s Ethics Committee.
Moreover, B.K. is not a “student” within the Board of Regents’
jurisdiction because she is a not a “student” of a higher education institution
controlled by the Board of Regents. Instead, B.K. is a student of a public high
school and a member of 4-H. B.K.’s only connection to the Board of Regents,
that of a 4-H member, does not bring her within the ambit of the Board of
Regents’ jurisdiction because that jurisdiction is limited to “students,” and the
plain meaning of “student” is not synonymous with the plain meaning of
“member.”
Defendants argue that even if B.K. is entitled to due process, under the
rationale of Gul v. Center for Family Medicine, 762 N.W.2d 629 (S.D. 2009), B.K.
received due process because she had notice of the Ethics Committee’s

23

investigation prior to her expulsion. In Gul, the South Dakota Supreme Court
reasoned that a hearing was not necessary before the university could dismiss
a medical student for academic reasons. Id. at 636. Instead, the university only
had to notify the student of her academic deficiencies and provide an
opportunity for the student to make academic success. Id. Because the student
did not meet the academic standards, the school could terminate her without
affording her due process. Id.; see also Guse v. Univ. of S.D., No. Civ. 08-4119KES, 2011 WL 1256727, at *6-8 (D.S.D. Mar. 30, 2011) (recognizing similar
standards for an academic dismissal of a graduate standard).
Gul is not persuasive. By its own language, the SDAPA does not apply to
the dismissal of a graduate student at an institution under the Board of
Regents’ jurisdiction. SDCL 1-26-1(1).11 B.K. is not a student at an institution
under the Board of Regents’ jurisdiction.

11

Moreover, in Guse v. University of South Dakota, No. Civ. 08-4119KES, 2011 WL 1256727, at *6-8 (D.S.D. Mar. 30, 2011), this court noted that
when a university dismisses a student based on alleged ethical violations, that
is a disciplinary dismissal. 2011 WL 1256727, at *8. “A university student
facing a disciplinary dismissal must receive notice of all allegations against him
or her, a definite charge, and an in-person hearing with the opportunity to
present his or her side of the story.” Id. (citing Jones v. Snead, 431 F.2d 1115,
1117 (8th Cir. 1970); Esteban v. Central Mo. State Coll., 415 F.2d 1077, 1089
(8th Cir. 1969); Greenhill v. Bailey, 519 F.2d 5, 7 (8th Cir. 1975)). If the SDAPA
did not apply because the Board of Regents had jurisdiction over B.K.’s
dismissal from 4-H, then she was still entitled to notice, a definite charge, and
an in-person hearing because B.K.’s exclusion from 4-H events was based on
an alleged ethical violation and, therefore, she was entitled to the due process
procedures applicable to a disciplinary dismissal. The failure to provide due
process is a violation of the Fourteenth Amendment. Id. at *9-10.
24

Thus, the exclusionary portion of SDCL 1-26-1, “student academic or
disciplinary proceedings under the jurisdiction of the Board of Regents,” does
not apply.
2.

Remainder of SDCL 1-26-1(2)

Under SDCL 1-26-1(2), a contested case exists for “a proceeding . . . in
which the legal rights, duties, or privileges of a party are required by law to be
determined by an agency after an opportunity for hearing[.]” SDCL 1-26-1(2). In
the SDAPA, agency means “each association, authority, board, commission,
committee, council, department, division, office, officer, task force, or other
agent of the state vested with the authority to exercise any portion of the state's
sovereignty.” SDCL 1-26-1(1). This definition is controlling. Bruggeman v. S.D.
Chemical Dependency Counselor Certification Bd., 571 N.W.2d 851, 852 (S.D.
1997) (“Where the term ‘agency’ is defined by statute, the statutory definition is
controlling.” (citing Frawley Ranches, Inc. v. Lasher, 270 N.W.2d 366, 371 (S.D.
1978))).
4-H is an association, board, committee, or agent of South Dakota.
Defendants contend that 4-H is entitled to Eleventh Amendment sovereign
immunity because 4-H is an arm of the state of South Dakota. Because 4-H is
an asociation, board, committee, or agent of the state and is entitled to exercise
part of South Dakota’s sovereignty, the statutory definition of “agency” has
been met.

25

3.

Due Process Provisions of SDAPA

The South Dakota Supreme Court has reasoned that “[t]he principal
manifestation of a ‘contested case’ is its character as a quasi-judicial process
based upon particular facts and information, and immediately affecting the
interests of specific parties in the proceedings.” In re Union Carbide Corp., 308
N.W.2d 753, 757 (S.D. 1981) (quoting Valley State Bank of Canton v. Farmers
State Bank of Canton, 213 N.W.2d 459, 463 (S.D. 1973)). “The constitutional
guaranty of due process of law applies to, and must be observed in,
administrative as well as judicial proceedings, particularly where such
proceedings are specifically classified as judicial or quasi-judicial in nature.” Id.
at 758 (citation omitted). The South Dakota Supreme Court has long held that
“ ‘[d]ue process of law applies to administrative and executive action by which
one may be deprived of property[.]’ ” Id. (quoting Caldwell v. Pierson, 159 N.W.
124, 126 (S.D. 1916)); see also id. at 757 (that “required by law” language in
SDCL 1-26-1 “includes constitutional requirements of fair play, due process
and agency rules, as well as the requirements of statutory law.’ ” (citations
omitted)).
The SDAPA “provides generally for appointment of a hearing examiner,
rules of evidence, oath, subpoena power and deposition evidence. That such
procedure is at least quasi-judicial in nature is beyond dispute.” Id. Thus, the
South Dakota Supreme Court has held “that a party thereto is entitled to due
process.” Id.

26

B.K. was an adverse party in the Ethics Committee’s hearing because the
Committee was determining whether she was entitled to continue her
participation in 4-H, which is an agency for purposes of SDCL 1-26-16; 1-261(2). While the Board of Regents and SDSU facilitate the cooperative extension
program and 4-H, it appears that 4-H maintains the right to discipline its
members, including through a hearing before or investigation by the Ethics
Committee.
Moreover, the Ethics Committee’s actions may have touched upon B.K.’s
property and liberty interests. B.K. has been successful in the past at livestock
shows. B.K. has earned multiple monetary awards, including a $22,000 award.
B.K. has placed the proceeds from her livestock shows into her college fund.
B.K. may be excluded from some major shows because she is banned from 4-H.
Consequently, she has lost the opportunity to compete for the chance to win
future monetary awards, which could be used to fund her college education.
In Marchand v. Grant County, No. CV-07-182-RHW, 2009 WL 2998184
(E.D. Wash. Sept. 15, 2009), the district court for the Eastern District of
Washington found a liberty interest to participate in a county fair. Id. at *5-6.
In Marchand, the plaintiff, who was involved with 4-H as a trainer and leader,
was expelled from the county fairgrounds after she allegedly cursed. Id. at *1-3.
The court found that the county fair board did not violate her substantive due
process rights, but that a jury could find that it violated her procedural due
process rights:

27

On the other hand, Plaintiff has a liberty interest in
attending the Grant County Fair that requires procedural due
process. See Hodge, 88 F. Supp. 2d at 1242. . . . In this case,
Plaintiff asserts that she was removed from Fair by the Board
members without giving her an opportunity to address the
allegations that were being levied against her. In order to
determine whether Plaintiff’s due process rights were violated, the
jury will have to consider a number of factors; for instance, the
time delay from the confrontation and the decision to expel
Plaintiff, whether an emergency situation prevented the Board
members from first approaching Plaintiff prior to asking the sheriff
officers to remove her from the fair grounds, whether the
confrontation disrupted any events that were taking place, or
whether the confrontation resulted in some injury to a fair-goer. In
viewing the facts in the light most favorable to Plaintiff, the Court
finds that a reasonable jury could find that Plaintiff's due process
rights were violated when she was expelled from the 2005 Grant
County Fair without being afforded an opportunity to present her
side of the story.
Id. at *5-6. Applying the rationale in Marchand to this case, the court finds that
B.K. may similarly have a liberty interest to show livestock animals at 4-H
events.
The SDAPA also applies if B.K. can show that a “privilege” afforded to her
was controlled by 4-H. SDCL 1-26-1(2). A main focus of 4-H is to train and
assist its members in preparing to exhibit livestock at various shows. Members
have a right or a privilege to participate in these shows as long as they are in
good standing with 4-H.
B.K. has shown that she has a fair chance of prevailing on the merits to
prove that she has a property and/or liberty interest under the due process
clause to attend and participate in livestock shows. B.K. has also demonstrated
a fair probability of success to prove that she had a privilege and/or right of
28

attending and participating in these shows as a member of 4-H under SDCL 126-1(2). Because a liberty interest, property interest, and/or privilege is
involved and B.K.’s rights to attend and participate in livestock shows was
controlled, at least in part, by 4-H (an agency for purposes of SDCL 1-26-1(1),
(2)), she is likely entitled to the due process outlined in SDCL 1-26-16, which
requires notice and a hearing.
Before banning her from 4-H, defendants only spoke with Greg, B.K.’s
father. After that conversation, the Ethics Committee held a hearing on the
matter. The Ethics Committee did not provide notice to either B.K. or Greg that
they were meeting to discuss B.K.’s continued involvement with 4-H. B.K. did
not receive the opportunity to present her side of the story in-person or in
writing. B.K. has shown that she was not provided with either notice that the
Ethics Committee was going to meet or an opportunity to appear at the hearing
before the Ethics Committee or other applicable 4-H committee. These actions
may establish a violation of SDCL 1-26-16. Thus, the success on the merits
factor weighs in favor of granting the injunction.
B.

Irreparable Harm

Of the two most critical Dataphase factors, courts heavily weigh the
threat of irreparable harm factor. “[T]he movant’s failure to sustain its burden
of proving irreparable harm ends the inquiry ‘and the denial of the injunctive
request is warranted.’ ” Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d
367, 371 (8th Cir. 1991) (quoting Gelco Corp. v. Coniston Partners, 811 F.2d

29

414, 420 (8th Cir. 1987)). The key word in the irreparable harm factor is
irreparable because “[t]he possibility that adequate compensatory or other
corrective relief will be available at a later date, in the ordinary course of
litigation, weighs heavily against a claim of irreparable harm.” Sampson v.
Murray, 415 U.S. 61, 88 (1974) (internal quotation omitted).
B.K. need only show the possibility of harm and not actual harm. See,
e.g., United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (“The purpose of
an injunction is to prevent future violations . . . and, of course, it can be
utilized even without a showing of past wrongs.” (citing Swift & Co. v. United
States, 276 U.S. 311, 326 (1928))). But B.K. must “demonstrate that
irreparable injury is likely in the absence of an injunction.” Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 23 (2008) (emphasis in original) (citations
omitted).
Numerous courts have held that there is no irreparable harm if the
plaintiff is denied the opportunity to participate in government-sponsored
athletics. See, e.g., McGee v. Va. High Sch. League, Inc., 801 F. Supp. 2d 526,
531 (W.D. Va. 2011) (“Courts have routinely rejected the notion that a student
suffers irreparable harm by not being permitted to participate in interscholastic
athletics.” (citation omitted)); St. Patrick High Sch. v. N.J. Interscholastic Athletic
Ass’n, No. 10-cv-948, 2010 U.S. Dist. LEXIS 17993, at *16-17 (D.N.J. 2010)
(collecting cases and holding that there was no irreparable harm when a high
school basketball team was prohibited from playing in the state championship);

30

Fluitt v. Univ. of Neb., 489 F. Supp. 1194, 1201 (D. Neb. 1980) (reasoning that
the court had “some difficulty finding irreparable injury to the plaintiff” when
he claimed that, among other alleged harms, that he would be denied the
opportunity to compete on the university’s track team and would be unable to
defend his title in the mile race). Defendants claim that participation in 4-H is
similar to participation in government-sponsored athletic events.
4-H and athletic activities share some similarities, including the time
commitment necessary to excel in the activities and the competitive nature of
the activities. Unlike athletic activities, however, 4-H offers its members a
chance to win monetary awards, which B.K. has won in the past and has
placed in her college fund. B.K. also testified that she hopes to take over the
family business in the future, which currently includes breeding and showing
livestock. By being banned from 4-H, B.K. loses the opportunity to learn how to
show animals. Given these facts, B.K. has shown that she has a possibility of
irreparable harm. See, e.g., Davelaar v. Rock Valley Community Sch., No. C984003-DEO, 1998 WL 34114577, at *11 (N.D. Iowa Jan. 21, 1998) (reasoning
that a student expelled from FFA showed irreparable harm).
B.K. further alleges that she will be irreparably harmed due to “disdain
from her contemporaries[.]” Docket 20 at 4. B.K. presented evidence that she
received multiple harassing text messages, Facebook messages, and emails
from other 4-H members stating that she did not personally care for Moe, she
was a cheater, and she was not a good 4-H leader. B.K. terminated her

31

Facebook account due to the harassment. B.K. has shown that she has faced
“disdain” from her peers, and her reputation for honesty has been injured. The
court finds, after considering all of the evidence, that the irreparable harm
factor weighs in favor of granting the preliminary injunction.
C.

Balance of the Harms

The balance of the harms factor examines the balance between the harm
to the party seeking the injunction and the public interest. Pottgen v. Mo. State
High School Activities Ass’n, 40 F.3d 926, 928-29 (8th Cir. 1994) (citing
Dataphase, 640 F.2d at 114). Stated another way, the court balances the
harms that would result in the following scenarios: (1) if the court improperly
denied the preliminary injunction; and (2) if the court improperly granted the
preliminary injunction. See Scotts Co. v. United Indus. Corp., 315 F.3d 264, 284
(4th Cir. 2002) (“[W]hile cases frequently speak in the short-hand of
considering the harm to the plaintiff if the injunction is denied and the harm to
the defendant if the injunction is granted, the real issue in this regard is the
degree of harm that will be suffered by the plaintiff or the defendant if the
injunction is improperly granted or denied[.]”); Am. Hosp. Supply Corp. v. Hosp.
Prods., Ltd., 780 F.2d 589, 594 (7th Cir. 1986) (announcing a similar test); see
also Hillerich & Bradsby Co. v. Christian Bros., Inc., 943 F. Supp. 1136, 1142
(D. Minn. 1996) (balancing the harms by looking at what the harm to the
defendant would be if the injunction were “improperly granted”).

32

If the court improperly grants the injunction, then B.K. will participate in
4-H shows where she has the possibility of winning the show and receiving a
monetary award to which she is not entitled. If the court improperly denies the
injunction, then B.K. will lose the opportunity to learn about showing livestock
and may possibly forfeit monetary prizes. She will also continue to be excluded
from some major shows that do not allow banned 4-H members to participate.
B.K. is currently 16 years old and has two more years to show livestock with 4H. Due to the time-consuming nature of litigation, B.K. may be too old to show
livestock with 4-H by the conclusion of this case. Thus, the balance of the
harms factor weighs in favor of granting the injunction.
D.

Public Interest

South Dakota has a strong public interest to afford notice and a hearing
when appropriate. See generally SDCL 1-26 (containing a complex system of
required notices and hearings in various circumstances). This interest is
especially strong here when B.K. was banned from 4-H on the basis of what her
father allegedly told Nielson and Geppert, the validity of which is disputed by
her father. B.K. did not receive an opportunity to defend herself or otherwise
explain what occurred. Thus, the public interest factor weighs in favor of
granting the injunction.
All four factors weigh in favor of granting the preliminary injunction.
Plaintiff seeks “a preliminary injunction enjoining the Defendants to reinstate
the Plaintiff’s ward and to refrain from interfering with the Plaintiff’s ward,

33

B.K.’s participation in any 4-H activities.” Docket 18 at 1. Thus, defendants are
prohibited from interfering with B.K.’s participation in any 4-H activities until
further order of the court.
CONCLUSION
Defendants move to dismiss all of B.K.’s claims against 4-H and B.K.’s
claims against Nielson and Geppert in their official capacities. 4-H is not a legal
entity that can sue or be sued and therefore is entitled to be dismissed. Nielson
and Geppert, as state employees, are entitled to sovereign immunity under the
Eleventh Amendment for B.K.’s claims for monetary relief against them in their
official capacities. Thus, defendants’ motion to dismiss is granted as to B.K.’s
claims for injunctive and monetary relief against 4-H and B.K.’s claims for
monetary relief against Nielson and Geppert in their official capacities. It is
denied with respect to the request for injunctive relief against Nielson and
Geppert in their official capacities. B.K. moves for a preliminary injunction
under 42 U.S.C. § 1983 for various constitutional violations. The court only
addressed B.K.’s Fourteenth Amendment procedural due process claim
asserted against Nielson and Geppert in their official capacities. Because all
four of the Dataphase factors have been met, B.K.’s motion for a preliminary
injunction is granted as to that claim. Accordingly, it is
ORDERED that defendants’ motion to dismiss (Docket 9) is granted in
part.

34

IT IS FURTHER ORDERED that plaintiff’s motion for a preliminary
injunction (Docket 18) is granted in part.
IT IS FURTHER ORDERED that defendants are enjoined from interfering
with B.K.’s participation in any 4-H activities until further order of the court.
Dated July 12, 2012.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

35