High Bear v. Dooley

Filing 21

ORDER denying 8 Motion to restore visitation; withdrawing 9 Motion to Dismiss; denying 13 Motion to Amend/Correct; denying 13 Motion; granting 18 Motion to Amend/Correct; granting 20 Motion to Withdraw. Signed by U.S. District Judge Karen E. Schreier on 1/28/2014. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MRS. SHELLEY RAE HIGH BEAR,
Plaintiff,
vs.
ROBERT DOOLEY,
Defendant.

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Civ. 13-4094-KES

ORDER

Plaintiff, Shelley Rae High Bear, has filed a motion to restore visitation
and two motions to amend or correct her complaint. Dockets 8, 13, 18. In
addition to opposing both motions to amend (Dockets 15, 19), defendant,
Robert Dooley, filed a motion to dismiss (Docket 9). On January 16, 2014,
Dooley moved to withdraw his motion to dismiss. Docket 20. The court will
address each pending motion in turn.
I.

The court denies High Bear’s motion to restore visitation.
High Bear first requests that the court restore her visitation and phone

privileges, upon which Dooley has placed permanent restrictions, thereby
preventing her from communicating with her incarcerated husband. Docket 8.
As noted in the court’s order dated October 10, 2013, the Eighth Circuit has
consistently held that there is no constitutional right to visitation in prison.
Ware v. Morrison, 276 F.3d 385 (8th Cir. 2002). “Consequently, in the Eighth
Circuit, it appears that prison officials are free to arbitrarily deny visitation,

even indefinitely, with a prisoner’s mother, wife, child, or close friend without
being subject to federal court scrutiny.” Steinbach v. Branson, No. 1:05-CV101, 2007 WL 2985571, at *5 (D.N.D. Oct. 9, 2007). Because “the federal
courts will not interfere with the administration of the prison system . . .
[a]bsent a deprivation of a constitutional right,” Blake v. Pryse, 444 F.2d 218,
218 (8th Cir. 1971), the court denies High Bear’s motion to restore visitation
and phone privileges.
II.

The court grants High Bear’s second motion to amend complaint.
A motion for leave to amend is committed to the sound discretion of the

district court. Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998)
(citations omitted). “A party may amend its pleading once as a matter of course
within . . . 21 days after serving it.” Fed. R. Civ. P. 15(a)(1)(A). “In all other
cases, a party may amend its pleading only with the opposing party’s written
consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Although Federal Rule of
Civil Procedure 15(a) dictates that “[t]he court should freely give leave when
justice so requires,” the court may deny such requests for “undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or] futility of the
amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Here, more than 21 days have passed between the date on which
defendant was served with this action and the dates on which High Bear filed
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her motions to amend. The court is therefore not required by the Federal Rules
of Civil Procedure to grant High Bear’s motions.
First the court will consider High Bear’s motion to amend filed on
November 20, 2013, wherein she seeks to include additional monetary losses in
relation to her recent involuntary commitment. The proposed amendment
merely alleges that Dooley “used state officials in order to carry out further
retaliation against Plaintiff [sic].” Docket 13 at 1. High Bear alleges no facts to
support this allegation. High Bear does attach documents to her motion to
amend which establish that Special Agent Riley Cook petitioned for High Bear’s
emergency commitment, and that she was committed following a hearing for
which she received notice. Docket 13-2. These facts alone do not support a
finding of loss of a constitutional right. Because the court is not required to
“supply additional facts” or “construct a legal theory that assumes facts that
have not been pleaded,” the court finds that High Bear has failed to state a
claim upon which relief may be granted. Stone v. Harry, 364 F.3d 912, 914 (8th
Cir. 2004) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)). The
court therefore denies High Bear’s first motion to amend.1
Second, High Bear’s motion to amend, which was filed on December 2,
2013, seeks to hold Dooley individually liable for violating her constitutional

1

To the extent High Bear’s first motion to amend complaint purports to
be a “motion to subpoena two hostile witnesses,” such motion is denied. High
Bear has offered no argument in support of such motion.
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rights. Dooley has failed to demonstrate that the proposed amendment would
cause him undue prejudice. See Buder v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 644 F.2d 690, 694 (8th Cir. 1981) (“Delay alone is an insufficient
justification for denying a motion to amend; prejudice to the nonmovant must
also be shown.”). Because Dooley was served with notice of the original
complaint, it is highly unlikely that he would be prejudiced by now having to
defend against an individual-capacity claim, especially in light of the fact that
Dooley has not yet filed an answer to the original complaint. See Murphy v.
State of Ark., 127 F.3d 750, 754–55 (8th Cir. 1997) (stating “we do not require
that personal capacity claims be clearly-pleaded simply to ensure adequate
notice to defendants” and noting that it would not be an abuse of discretion for
a district court to grant a motion to amend to add individual-capacity claims
against defendants who were already named in an action). Accordingly, the
court grants High Bear’s second motion to amend. High Bear must submit an
amended complaint in accordance with this order on or before February 28,
2014.
III.

The court grants Dooley’s motion to withdraw.
On October 25, 2013, Dooley filed a motion to dismiss. Docket 9. Dooley

now requests to withdraw such motion. Docket 20. Good cause appearing, the
court grants Dooley’s motion to withdraw. Accordingly, it is
ORDERED that High Bear’s motion to restore visitation (Docket 8) is
denied.
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IT IS FURTHER ORDERED that High Bear’s first motion to amend
complaint and subpoena two hostile witnesses (Docket 13) is denied.
IT IS FURTHER ORDERED that High Bear’s second motion to amend
complaint (Docket 18) is granted. High Bear must file and serve her amended
complaint on or before February 28, 2014.
IT IS FURTHER ORDERED that Dooley’s motion to withdraw (Docket 20)
his motion to dismiss (Docket 9) is granted.
Dated January 28, 2014.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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