High Bear v. Bon Homme County, et al

Filing 29

ORDER denying as moot 4 Motion to Appoint Counsel ; granting 11 Motion to Dismiss; denying as moot 19 Motion to Amend/Correct; granting 20 Motion to Dismiss; denying as moot 22 Motion; granting 24 Motion to Dismiss. Signed by U.S. District Judge Karen E. Schreier on 7/24/2014. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
WILLIAM RUFUS HIGH BEAR,
Plaintiff,
vs.
BON HOMME COUNTY;
SOUTH DAKOTA;
LISA ROTHSCHADL,
Bon Homme County State’s Attorney;
PAM HEINE,
court-appointed defense attorney;
GLEN W. ENG, Circuit Judge; and
LENNY GRAMKOW,
Bon Homme County Sheriff,
Defendants.

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Civ. 14-4039-KES
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ORDER DENYING
) MOTION TO APPOINT COUNSEL,
) DENYING MOTION TO AMEND
) COMPLAINT, AND GRANTING
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MOTIONS TO DISMISS
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Plaintiff, William Rufus High Bear, filed a pro se lawsuit and requested
leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Dockets 1, 3.
On March 27, 2014, the court screened High Bear’s complaint and directed
service thereof. Docket 7. Pending before the court is High Bear’s motion to
appoint counsel (Docket 4), High Bear’s motion to amend or correct the
complaint (Docket 19), defendant Glen W. Eng’s motion to dismiss (Docket 11),
defendants State of South Dakota, Bon Homme County, Lenny Gramkow, and
Lisa Rothschadl’s motion to dismiss (Docket 20), and defendant Pam Hein’s
motion for judicial notice and motion to dismiss (Dockets 22, 24). For the
reasons set forth herein, the court grants defendants’ motions to dismiss,

denies High Bear’s motion to amend or correct the complaint, and denies all
other pending motions as moot.
I.

The Court Grants Defendants’ Motions to Dismiss.
High Bear alleges that defendants violated his constitutional rights by

determining his sentence without first giving him the opportunity to review the
case file and by considering “old violations” when determining his sentence.
Docket 1 at 1. High Bear also generally alleges that defendants violated the
Equal Protection Clause of the Fourteenth Amendment by discriminating
against him on the basis of race. Id. at 3. To remedy these alleged
constitutional violations, High Bear requests “$500,000 for using outdated
records in order to excessively sentence [him].” Id. at 4. High Bear also requests
that the court “prosecute and expel defendants from their positions for
miscarriage of justice.” Id. at 3. Defendants have separately moved to dismiss
High Bear’s complaint pursuant to Federal Rules of Civil Procedure 12(b)(1)
and/or 12(b)(6). Dockets 11, 20, 24. High Bear has not responded to
defendants’ motions to dismiss, and the time for response has passed.
In considering dismissal pursuant to Rule 12(b)(6), “the court must
accept all well-pleaded allegations of the complaint as true, and all reasonable
inferences therefrom must be construed favorably to the pleader. McCormack v.
Citibank, N.A., 979 F.2d 643, 646 (8th Cir. 1992) (quoting Morton v. Becker, 793
F.2d 185, 187 (8th Cir. 1986)). When deciding a motion to dismiss under Rule
12(b)(6), the court may consider matters of public record without converting
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the motion to one for summary judgment. State ex rel. Nixon v. Coeur D’Alene
Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999). The court may dismiss a complaint
for failure to state a claim when the plaintiff fails to plead “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007).
A.

Defendant Glen W. Eng

Eng asserts that High Bear has brought this action against him in his
official capacity as circuit court judge, and that he is entitled to absolute
judicial immunity against all claims asserted by High Bear. Dockets 11, 12.
High Bear did not indicate whether he intended to bring an action
against Eng in his official or individual capacity. “[T]o sue a public official in his
or her individual capacity, a plaintiff must expressly and unambiguously state
so in the pleadings, otherwise, it will be assumed that the defendant is sued
only in his or her official capacity.” Johnson v. Outboard Marine Corp., 172
F.3d 531, 535 (8th Cir. 1999) (citations omitted); see also Nix v. Norman, 879
F.2d 429, 431 (8th Cir. 1989) (noting a plaintiff should explicitly state whether
he or she is suing a defendant in his or her individual capacity so as to put the
defendant on “prompt notice of his or her potential personal liability”). Because
High Bear failed to expressly and unambiguously state within his complaint
that he intended to sue Eng in his individual capacity, the court must construe
this action as one against Eng in his official capacity as a circuit court judge.

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The Eighth Circuit has held that, “[a] judge is absolutely immune from
liability if (1) the judge had subject matter jurisdiction, and (2) the acts
complained of were judicial acts.” Smith v. Bacon, 699 F.2d 434, 436 (8th Cir.
1983). The United States Supreme Court described the significance of judicial
immunity as follows:
It is a judge's duty to decide all cases within his jurisdiction that
are brought before him, including controversial cases that arouse
the most intense feelings in the litigants. His errors may be
corrected on appeal, but he should not have to fear that
unsatisfied litigants may hound him with litigation charging malice
or corruption. Imposing such a burden on judges would contribute
not to principled and fearless decisionmaking but to intimidation.
Pierson v. Ray, 386 U.S. 547, 554 (1967).
In the instant case, the court takes judicial notice of the fact that Eng is
a circuit court judge for the State of South Dakota in the First Judicial Circuit.
As such, Eng has “original jurisdiction concurrent with courts of limited
jurisdiction. . . to try and determine all cases of misdemeanor.” SDCL 16-6-12.
Eng therefore had jurisdiction over High Bear’s underlying misdemeanor.
Furthermore, High Bear has failed to identify any actions taken by Eng that
could be properly characterized as “non-judicial.” To the contrary, all actions
allegedly taken by Eng relate to sentencing matters in High Bear’s underlying
criminal case. The court therefore finds that Eng is entitled to absolute judicial
immunity and grants his motion to dismiss for failure to state a claim upon
which relief may be granted.

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B.

Defendants State of South Dakota, Bon Homme County,
Sheriff Lenny Gramkow, and State’s Attorney Lisa Rothschadl

The State of South Dakota argues that it is protected from this action by
the Eleventh Amendment of the United States Constitution; Bon Homme
County argues that it cannot be held liable under a respondeat superior theory;
Gramkow argues that he was not personally involved in High Bear’s arrest and
cannot be held liable under a respondeat superior theory; and Rothschadl
argues that she is protected from this action by prosecutorial immunity.
Dockets 20, 21.
1.

State of South Dakota

Although “[s]ection 1983 provides a federal forum to remedy many
deprivations of civil liberties, . . . it does not provide a federal forum for litigants
who seek a remedy against a State for alleged deprivation of civil liberties.” Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989). “The Eleventh Amendment
bars such suits unless the State has waived its immunity,” id. (citing Welch v.
Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472–73 (1987)), and in
the instant case, the State of South Dakota has not waived its immunity.
Accordingly, the court finds that High Bear has failed to state a claim against
the State of South Dakota upon which relief may be granted.
2.

Bon Homme County

Although High Bear has named Bon Homme County as a party to this
action, High Bear has not alleged that Bon Homme County itself violated his

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constitutional rights. Rather, High Bear has alleged that employees of Bon
Homme County violated his constitutional rights. As defendants have noted,
“the doctrine of respondeat superior does not apply under § 1983.” Ware v.
Jackson Cnty., Mo., 150 F.3d 873, 885 (8th Cir. 1998). Bon Homme County,
therefore, cannot be held liable for the alleged actions of its employees unless
High Bear alleges that a county policy or custom resulted in the deprivation of
his constitutional rights. Monell v. New York City Dep’t of Soc. Servs., 436 U.S.
658, 691–95 (1978). High Bear has not alleged as much.1 The court therefore
finds that he has failed to state a claim against Bon Homme County upon
which relief may be granted.
3.

Lenny Gramkow and Lisa Rothschadl

As previously established, “to sue a public official in his or her individual
capacity, a plaintiff must expressly and unambiguously state so in the
pleadings, otherwise, it will be assumed that the defendant is sued only in his
or her official capacity.” Outboard Marine Corp., 172 F.3d at 535 (citations
omitted). Because High Bear failed to expressly and unambiguously state
within his complaint that he intended to sue Gramkow and Rothschadl in their
individual capacities, the court must construe this action as one against

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To be certain, High Bear has alleged that defendants withheld his criminal
file from him on one occasion. To impose municipal liability for a single act, “that
act must come from one in an authoritative policy making position and represent
the official policy of the municipality.” McGautha v. Jackson Cnty., Mo., 36 F.3d
53, 56 (8th Cir. 1994). High Bear has not alleged facts to support either of
these elements.
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Gramkow and Rothschadl in their official capacities as sheriff and state’s
attorney, respectively.
The Eighth Circuit has held that “[a] suit against a public official in his
official capacity is actually a suit against the entity for which the official is an
agent.” Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (citing
Kentucky v. Graham, 473 U.S. 159, 165 (1985). In other words, High Bear’s suit
against Gramkow and Rothschadl in their official capacities as county
employees is actually a suit against the County. As noted above, Bon Homme
County cannot be held liable for the alleged actions of its employees unless
High Bear alleges that a county policy or custom resulted in the deprivation of
his constitutional rights, Monell, 436 U.S. at 691–95, and High Bear has not
alleged as much. Accordingly, the court finds that High Bear has failed to state
a claim against Gramkow and Rothschadl upon which relief may be granted.
C.

Defendant Pam Hein

Hein argues that High Bear has not alleged that she acted under color of
state law when she represented him in his underlying criminal case, and that
she therefore cannot be held liable under § 1983. Docket 25.
“[T]o state a claim for relief under 28 U.S.C. § 1983, a plaintiff must
allege sufficient facts to show ‘(1) that the defendant(s) acted under color of
state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right.’ ” Zutz v. Nelson, 601 F.3d 842, 848
(8th Cir. 2010) (quoting Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th
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Cir. 2009)). With regard to the first element, High Bear specified in his
complaint that Hein was being sued in her capacity as a court-appointed
defense attorney. Docket 1 at 2. The United States Supreme Court has held
that a court-appointed attorney “does not act under color of state law when
performing a lawyer’s traditional functions as counsel to a defendant in a
criminal proceeding.” Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981). Because
High Bear has asserted no facts and presented no evidence to suggest that
Hein was acting outside the traditional functions of counsel to a defendant in a
criminal proceeding, the court concludes that Hein was not acting under color
of state law when the alleged misconduct occurred. Accordingly, High Bear has
failed to state a claim against Hein upon which relief may be granted.
II.

The Court Denies High Bear’s Motion to Amend Complaint.
High Bear requests leave to amend his complaint to add Joanne Balvin,

Bon Homme County Clerk of Courts, as a defendant in this action. Docket 19.
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
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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, 21 days have passed between the date on which defendants were
served with this action and the date on which High Bear filed the pending
motion to amend. The court is therefore not bound by the Federal Rules of Civil
Procedure to grant High Bear’s motion to amend or correct complaint. High
Bear requests leave to add Joanne Balvin in her capacity as Bon Homme
County Clerk of Court. High Bear did not expressly and unambiguously state
within his motion to amend complaint that he intended to sue Balvin in her
individual capacity. The court must therefore assume that Balvin is being sued
only in her official capacity as clerk of courts. Outboard Marine Corp., 172 F.3d
at 535 (citations omitted) (“[T]o sue a public official in his or her individual
capacity, a plaintiff must expressly and unambiguously state so in the
pleadings, otherwise, it will be assumed that the defendant is sued only in his
or her official capacity.”).
To that extent, High Bear is effectively requesting leave to amend his
complaint to add Bon Homme County as a defendant. See Elder-Keep, 460 F.3d
at 986 (citation omitted) (“A suit against a public official in his official capacity
is actually a suit against the entity for which the official is an agent.”). Again,
Bon Homme County cannot be held liable for the alleged actions of its
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employees unless High Bear alleges that a county policy or custom resulted in
the deprivation of his constitutional rights, Monell, 436 U.S. at 691–95, and
High Bear has not alleged as much herein. The court therefore denies High
Bear’s request for leave to amend or correct his complaint because High Bear’s
proposed amendment would be futile. Accordingly, it is
ORDERED that defendant Glen W. Eng’s motion to dismiss (Docket 11)
is granted.
IT IS FURTHER ORDERED that defendants State of South Dakota, Bon
Homme County, Lenny Gramkow, and Lisa Rothschadl’s motion to dismiss
(Docket 20) is granted.
IT IS FURTHER ORDERED that defendant Pam Hein’s motion for judicial
notice (Docket 22) is denied as moot.
IT IS FURTHER ORDERED that defendant Pam Hein’s motion to dismiss
(Docket 24) is granted.
IT IS FURTHER ORDERED that High Bear’s motion to amend or correct
complaint (Docket 19) is denied.
IT IS FURTHER ORDERED that High Bear’s motion to appoint counsel
(Docket 4) is denied as moot.
Dated July 24, 2014.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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