London v. Miller et al

Filing 39

ORDER denying 22 Motion to Dismiss for Lack of Jurisdiction; denying 24 Motion to Dismiss; denying 24 Motion for Joinder; denying 29 Motion to Dismiss. The complaint will be dismissed without prejudice to refiling, unless Laura secures counsel to proceed by July 23, 2018. Signed by U.S. District Judge Roberto A. Lange on 7/2/18. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

LAURA

LONDON,

PERSONAL

SURVIVOR

REPRESENTATIVE

OF

AND

4:17-CV-04165-RAL

THE

ESTATE OF MICHAEL J. LONDON;

Plaintiff,

OPINION AND ORDER REGARDING

REASON FOR DISMISSAL WITHOUT
PREJUDICE
vs.

DARRELL MILLER, SHERIFF, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
STEVE SMITH, ATTORNEY, QMHP, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
SCOTT POWERS,DEPUTY SHERIFF,IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
JOHN KOENIG, SD HIGHWAY PATROL
TROOPER, RETIRED, IN HIS INDIVIDUAL
AND
OFFICIAL
CAPACITY;
JOE
HUTMACHER, CHAMBERLAIN POLICE
CHIEF,IN HIS INDIVIDUAL AND OFFICIAL
CAPACITY; FRANK SCOTT, KIMBALL
POLICE CHIEF, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; DUSTIN POWELL,
CHAMBERLAIN POLICE OFFICER, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
CATLAND LANDEGENT, CHAMBERLAIN
POLICE OFFICER,IN HIS INDIVIDUAL AND
OFFICIAL
CAPACITY;
CODY

SCHMEICHEL, SD HIGHWAY PATROL
TROOPER, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; CHRIS KONRAD,
SOUTH DAKOTA DCI AGENT, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;

TOBY RUSSEL, SOUTH DAKOTA DCI
AGENT, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; BRIAN BIEHL, SD

HIGHWAY PATROL TROOPER (FORMER),
IN

HIS

INDIVIDUAL

CAPACITY;

ADAM

AND

OFFICIAL

WOXLAND,

SD

HIGHWAY PATROL, IN HIS INDIVIDUAL
AND
OFFICIAL
CAPACITY;
STEVE
MANGER, SHERIFF LYMAN COUNTY, IN
HIS

INDIVIDUAL

AND

OFFICIAL

CAPACITY; TERRANCE REYELTS, POLICE
OFFICER, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; DEAN KNIPPLING,
POLICE SGT., IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; DON JENNINGS,
DEPUTY SHERIFF, IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY; ROBERT
MAYER, SOUTH DAKOTA HIGHWAY
PATROL SGT., IN HIS INDIVIDUAL AND
OFFICIAL
CAPACITY;
DIANA
LANDEGENT, CONSERVATION OFFICER,
SDGFP, IN HER INDIVIDUAL AND
OFFICIAL CAPACITY; BRIDGET MAYER,
ASSISTANT ATTORNEY GENERAL,IN HER
INDIVIDUAL AND OFFICIAL CAPACITY;
KELLY
MARNETTE,
ASSISTANT
ATTORNEY
GENERAL,
IN
HER
INDIVIDUAL AND OFFICIAL CAPACITY;
DAVID NATVIG, STATE'S ATTORNEY, IN
HIS

INDIVIDUAL

AND

OFFICIAL

CAPACITY; PAUL SCHEUTH, CHIEF OF
POLICE & JAIL ADMINISTRATOR, IN
HIS

INDIVIDUAL

AND

OFFICIAL

CAPACITY; RICHARD BERTRAM, STAFF,
IN

HIS

INDIVIDUAL

AND

OFFICIAL

CAPACITY; WINNER CITY JAIL STAFF,IN
THEIR

INDIVIDUAL

AND

OFFICIAL

CAPACITY; WINNER CITY JAIL MEDICAL
STAFF, IN THEIR OFFICIAL CAPACITY;
AND BRULE COUNTY JAIL STAFF, IN
THEIR OFFICIAL CAPACITY;
Defendants.

Plaintiff Laura London (Laura) brought this 42 U.S.C. § 1983 action against twenty-six
defendants on December 5, 2017. Doc. 1. Ms. London, acting as personal representative of the
estate of her father Michael London (Michael), seeks to recover for damages she alleges he

suffered due to deprivations of his eonstitutional rights during the episodes which led to his arrest
and during the months he spent in prison before his death on October 16, 2015. Michael died
unmarried, Doc. 31-10, and intestate. Doe. 31-8, survived by his children, David London, Donald
London, Michael E. London, and Laura, Doc. 31-10. Defendants move to dismiss on various

grounds. Many seek dismissal under Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Defendant Frank Scott moves to dismiss Laura's claim against him under Rules 12(b)(2) and

12(b)(5). Other defendants seek dismissal on 12(h)(6) grounds and invoke qualified immunity.
For the reasons stated below, this Court denies defendants' 12(b)(1) motions to dismiss, but will

dismiss Laura's complaint without prejudice for a different reason, unless she obtains counsel by
July 19, 2018.
I.

Discussion

A, Defendants' 12(b)(1) Motions

Defendants' 12(b)(1) motions challenge Laura's standing to bring this suit. Defendants
argue that because she was not the personal representative of the estate when she filed this suit,
she lacks standing to bring the case. In Robertson v. Wegmann.436 U.S. 584(1991), the Supreme
Court ruled that state law determines both whether a § 1983 cause of action survives the death of

the party entitled to bring the claim and who is entitled to bring a surviving § 1983 claim on behalf
ofthe decedent's estate. "Under[42 U.S.C.] § 1988 ... state statutory law, modifying the common
law, provides the principal reference point in determining survival of civil rights actions . . . ."
Robertson. 436 U.S. at 589 (footnote omitted). Thus, this Court applies South Dakota law to
resolve this issue.

In South Dakota,"[a]11 causes of action shall survive and be brought, notwithstanding the

death of the person entitled or liable to the same. Any such action may be brought by or against

the personal representative or sueeessors in interest of the deeeased." SDCL § 15-4-1; see also
SDCL § 29A-3-703(e)("[A] personal representative of a decedent domiciled in this state at death
has the same standing to sue and be sued in the courts of this state and the courts of any other

jurisdiction as the decedent had immediately prior to death."). Furthermore, "[t]he powers of a
personal representative relate back in time to give acts by the person appointed which are beneficial
to the estate occurring prior to appointment the same effect as those occurring thereafter." SDCL
§ 29A-3-701. After several defendants filed motions to dismiss, Docs. 18, 22, 24, Laura was

appointed to serve as the personal representative of her father's estate on February 16,2018. Doc.
31-1. Under South Dakota law, Laura's present powers as personal representative relate back to
when she commenced this suit on behalf of her father's estate. SDCL § 29A-3-701. Therefore,

defendants' argument that Laura lacked standing because she was not personal representative

when she filed the complaint lacks merit now that she has been so appointed, and their 12(b)(1)
motions are denied.

B. Other Standing Deficiency

In her briefin opposition to the motions to dismiss, Laura argues that she should be allowed
to continue proceeding pro se in this action. Doc. 31 at 1. However,Laura is not actually appearing

"pro se"(for herself), but rather on behalf ofher father's estate. Doe. 1 at 1. In Jones ex rel. Jones
V. Correctional Medical Services, Inc.. 401 F.3d 950(8th Cir. 2005), the Eighth Circuit held that

28 U.S.C. § 1654 "prohibit[s] a non-attomey administrator of an estate from proceeding pro se
when there are other beneficiaries or creditors ofthe estate." 401 F.3d at 951. This holding appears

in conflict with SDCL § 29A-3-703, which imparts to personal representatives "the same standing
to sue and be sued in the courts ofthis state and the courts ofany other jurisdiction as the decedent

had immediately prior to death," but "state law that eonfiiets with federal law has no effect," Jones

V. Vilsack. 272 F.3d 1030, 1033 (8th Cir. 2001). Thus, the rule stated in Jones ex tel. Jones v.
Correetional Medical Serviees. Inc. controls in this case.

Laura is not an attorney licensed to practice before this Court, nor in state court. State Bar

of South Dakota, Membership Directory As of March 20. 2018. § 2 at 12(2018). She is not the

only beneficiary ofMichael's estate and thus cannot proceed pro sc. Jones.401 F.3dat952. Under
SDCL § 29A-2-103, an intestate decedent's entire estate passes to the decedent's descendants by

representation ifthere is no surviving spouse. South Dakota's representation scheme provides that
"the estate or [intestate] part thereofis divided into as many equal shares as there are (i) surviving
children of the estate, if any." SDCL § 29A-2-106(a). Four of Michael's children survived him
as heirs. Doc. 31-10. Thus, Laura cannot proceed pro se without engaging in the unauthorized

practice oflaw, and her complaint should be dismissed under Jones. Jones, 401 F.3d at 951-952.
This Court will dismiss this case without prejudice to refiling later with counsel, unless

Laura hires counsel to proceed and notifies this Court and opposing counsel no later than July 23,
2018. See Memon v. Allied Domecq QSR,385 F.3d 871, 874(5th Cir. 2004)(noting that district

courts generally wam the party ofneed for counsel before dismissal or dismiss without prejudice).
II.

Conclusion

For the reason stated above, it is

ORDERED that the motions to dismiss made under Rule 12(b)(1), Docs. 22, 24, 29, are
denied. It is further

ORDERED that the complaint will be dismissed without prejudice to refiling, unless Laura
secures counsel to proceed by July 23, 2018. It is further

ORDERED that ruling is withheld on the remaining motions to dismiss as those may
become moot if dismissal without prejudice occurs.

DATED this^day of July, 2018.
BY THE COURT:

ROBERTO A. LAN(
UNITED STATES DISTRICT JUDGE