Meyer v. Schroeder et al

Filing 25

ORDER granting 10 Motion to Dismiss; granting 13 Motion to Dismiss; granting 16 Motion to Dismiss. Signed by U.S. District Judge Karen E. Schreier on 8/1/18. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RENE D. MEYER,

CIV. 4:18-CV 04037-KES
Plaintiff,
ORDER GRANTING
MOTIONS TO DISMISS

vs.
JUDGE PATRICK SCHROEDER,
JUDGE ERIC JOHNSON, MINNEHAHA
COUNTY, INC., MINNEHAHA STATE’S
ATTORNEY’S OFFICE – AARON
MCGOWAN, STATE OF SOUTH
DAKOTA, INC., ATTORNEY GENERAL –
MARTY JACKLEY, MINNEHAHA
PUBLIC DEFENDER’S OFFICE LISA
CAPELLUPO,
Defendants.

Plaintiff, Rene D. Meyer, brought suit against defendants alleging various
violations of her civil rights, including her right to a jury trial, right to a court
appointed attorney, and her rights as a “sovereign citizen.” Docket 1 at 1. The
complaint also alleges that defendants violated the Racketeer Influenced and
Corrupt Organizations Act (RICO). Id. at 1. Meyer alleges these violations have
caused harm to her reputation and impeded her ability to obtain employment
opportunities. Defendants move to dismiss under 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. Meyer opposes the motions. For the following
reasons, defendants’ motions to dismiss are granted. Dockets 10, 13, 16.

BACKGROUND
Meyer filed a pro se complaint on April 10, 2018, naming defendants,
Judge Patrick Schroeder, Judge Eric Johnson, Minnehaha County, Minnehaha
State’s Attorney’s Office, Aaron McGowan, Minnehaha Public Defender’s Office,
Lisa Capellupo, State of South Dakota, Office of the Attorney General, and
Marty Jackley, and alleging various violations of her civil rights and RICO
violations. Docket 1 at 1.
Meyer’s allegations stem from an incident that occurred on July 12,
2017, when Meyer was found selling alcohol to someone under the age of 21 in
Minnehaha County. Docket 1 at 2. On July 19, 2017, the state charged Meyer,
by criminal complaint, with one count of furnishing alcohol to a minor between
the ages of 18 and 21 under SDCL § 35-9-1.1. Docket 17 at 1. A violation of
SDCL § 35-9-1.1 is a Class 2 misdemeanor punishable by up to thirty days
imprisonment or a five hundred dollar fine, or both. SDCL § 22-6-2.
On July 27, 2017, Meyer was appointed a Minnehaha County public
defender. Docket 17 at 2. A pre-trial conference was held on August 29, 2017,
and a trial was scheduled for September 12, 2017. Id. After several requests for
delay from both Meyer and the state, the complaint against Meyer was
dismissed under SDCL § 23A-44-2 and the public defender was discharged on
March 30, 2018. Id. Meyer paid no penalty and served no jail time. Docket 11
at 2.
On April 10, 2018, Meyer filed this complaint challenging the state court
case even though the charge had been dismissed by the State’s Attorney.
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Docket 17 at 2. Defendants separately move to dismiss for lack of subject
matter jurisdiction and failure to state a claim upon which relief can be
granted. Dockets 10, 13, 16. Plaintiff opposes the motions to dismiss. Docket
19.
DISCUSSION
I.

Minnehaha County, Minnehaha State’s Attorney’s Office, Aaron
McGowan, Minnehaha Public Defender’s Office, Lisa Capellupo
Minnehaha County defendants move to dismiss Meyer’s claim under Fed.

R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.
Docket 16. When reviewing a motion to dismiss under Rule 12(b)(6), the court
assumes that all facts in the complaint are true and construes any reasonable
inferences from those facts in the light most favorable to the nonmoving party.
Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). The
factual content in the complaint must “ ‘allow[ ] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’ ”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). As a pro se plaintiff, the court
applies the pleading standards liberally in favor of the complaint; however, the
court “ ‘will not supply additional facts, nor will [it] construct a legal theory for
plaintiff that assumes facts that have not been pleaded.’ ” Stone v. Harry, 364
F.3d 912, 914 (8th Cir. 2004) (quoting Dunn v. White, 880 F.2d 1188, 1197
(10th Cir. 1989)).
If the complaint does not contain these bare essentials, dismissal is

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appropriate. See Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). “To
survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’ ” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (quoting Bell Atl. Corp., 550
U.S. at 556). Federal pleading rules call for “a short and plain statement of the
claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), but
they do not require dismissal of a complaint for imperfectly stating a claim.
A.

§ 1983 Claim

Because Meyer’s non-RICO claims involve allegations of the deprivation
of her civil rights, it is fair to construe her claim as a cause of action under
42 U.S.C. § 1983. “Section 1983 creates a species of tort liability for the
deprivation of any rights, privileges, or immunities secured by the
Constitution.” Manuel v. City of Joliet, 137 S. Ct. 911, 916 (2017) (internal
citation omitted). “The essential elements of a constitutional claim under
§ 1983 are (1) that the defendant acted under the color of state law, and (2)
that the alleged wrongful conduct deprived the plaintiff of a constitutionally
protected federal right.” L.L. Nelson Enters., Inc. v. Cty. of St. Louis, 773 F.3d
799, 805 (8th Cir. 2012) (citing Schmidt v. City of Bella Villa, 557 F.3d 564, 571
(8th Cir. 2009)).
Even assuming that Minnehaha County defendants were acting under
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color of state law, the complaint fails to allege that Meyer was deprived of any
constitutional right. Meyer alleges that she was deprived of her Sixth
Amendment right to a jury trial. Docket 1 at 1. But the misdemeanor Meyer
was charged with is a petty offense under South Dakota law because it carried
a maximum penalty of only thirty days imprisonment. See South Dakota v.
Auen, 342 N.W.2d 236, 238 (S.D. 1984) (stating that offense carrying
maximum prison term six months or less is presumed petty). The United States
Supreme Court has consistently held that petty offenses are not subject to the
Sixth Amendment jury trial provision. See, e.g., Duncan v. Louisiana, 391 U.S.
145, 159 (1968). Meyer also contends that she was deprived of her right to
counsel. Docket 1 at 1. But the right to counsel is only violated when a
criminal defendant is denied counsel and subsequently sentenced to a term of
incarceration. United States v. Cavanaugh, 643 F.3d 592, 597 (8th Cir. 2011)
(citing Scott v. Illinois, 440 U.S. 367, 373-74 (1979)). In this case, and as noted
in the complaint, no jail sentence was sought, so Meyer’s right to counsel could
not have been violated. See Docket 1 at 3. Finally, all of Meyer’s claims
regarding rights as a “sovereign citizen” are rejected as frivolous. See United
States v. Hart, 701 F.2d 749, 750 (8th Cir. 1983) (rejecting “sovereign citizen”
as a constitutionally relevant status).
Because Meyer fails to state a § 1983 claim upon which relief can be
granted, the motion to dismiss by Minnehaha County, Minnehaha State’s
Attorney’s Office, Aaron McGowan, Minnehaha Public Defender’s Office, and
Lisa Capellupo (Docket 16) is granted.
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B.

RICO Claim

The Eighth Circuit has held that in order to prove a RICO violation, a
plaintiff must produce evidence that (1) an enterprise existed; (2) the enterprise
affected interstate or foreign commerce; (3) the defendant(s) was associated
with the enterprise; (4) the defendant participated, directly or indirectly, in the
conduct of the affairs of the enterprise; and (5) the defendant participated in
the enterprise through a pattern of racketeering activity by committing at least
two racketeering acts. Aguilar v. PNC Bank, N.A., 853 F.3d 390, 402 (8th Cir.
2017) (footnote omitted) (quoting United States v. Darden, 70 F.3d 1507, 1518
(8th Cir. 1995)). Each element must be alleged to state a valid claim. See, e.g.,
Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 354 (8th Cir. 2011). Meyer’s
complaint fails to properly allege any element of a RICO violation. Instead,
Meyer presents non-specific conclusory statements about the entire judicial
and governmental systems being rigged against her. Meyer’s RICO claim is
without merit and the motion to dismiss by Minnehaha County, Minnehaha
State’s Attorney’s Office, Aaron McGowan, Minnehaha Public Defender’s Office,
and Lisa Capellupo (Docket 16) is granted.
II.

Judge Schroeder and Judge Johnson
Judge Schroeder and Judge Johnson move for dismissal of Meyer’s

claims based on lack of subject matter jurisdiction under Fed. R. Civ.
P. 12(b)(1) and failure to state a claim upon which relief can be granted under
Fed. R. Civ. P. 12(b)(6). Docket 10 at 3. Judge Schroeder and Judge Johnson
argue that they possess absolute judicial immunity and, additionally, the
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claims against them are barred by the Eleventh Amendment of the United
States Constitution. Id. The court agrees that Judge Schroeder and Judge
Johnson are entitled to judicial immunity.
Judges retain absolute immunity from liability for acts committed within
their judicial jurisdiction. See, e.g., Pierson v. Ray, 386 U.S. 547, 553-54
(1967). A judge’s actions constitute a protected judicial act if they are: (1) a
function normally performed by a judge; and (2) the party dealt with the judge
in his judicial capacity. Stump v. Sparkman, 435 U.S. 349, 362 (1978).
The court takes judicial notice that Judge Johnson and Judge Schroeder
are two of the four full-time magistrate judges created and authorized by the
South Dakota legislature. See SDCL § 16-12B-1.1; Docket 11 at 4. Magistrate
judges have criminal jurisdiction under SDCL § 16-12B-11, which provides
that “a magistrate judge presiding has . . . jurisdiction . . . to try and determine
all cases of misdemeanor . . . .” So as magistrate judges, both Judge Johnson
and Judge Schroeder had statutory jurisdiction to hear and determine Meyer’s
criminal case because SDCL § 35-9-1.1, the statute Meyer was alleged to have
violated, is a Class 2 misdemeanor.
Here, there is no question that the actions complained of by Meyer
included those normally performed by a judge and that they were done by
Judge Schroeder and Judge Johnson in their judicial capacity. Meyer’s
allegations concern routine procedures like holding first appearances,
scheduling hearings, moving hearings, signing orders, appointing counsel,
scheduling a trial, etc. Also, Judge Schroeder and Judge Johnson had contact
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with Meyer only because they were the judges assigned to hear and determine
the criminal case against her. Thus, Judge Schroeder and Judge Johnson are
entitled to judicial immunity.
Because Judge Schroeder and Judge Johnson are entitled to judicial
immunity, this court has no subject matter jurisdiction to determine Meyer’s
claims against them. Thus, Judge Schroeder and Judge Johnson’s motion to
dismiss (Docket 10) is granted.
III.

State of South Dakota, Office of the Attorney General, and Marty
Jackley
The State of South Dakota, Office of the Attorney General, and Attorney

General Marty Jackley argue that Meyer’s claims should be dismissed under
the Eleventh Amendment. Docket 13. Eleventh Amendment immunity provides
that states, state agencies, and arms of the state are immune from suit in
federal court. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000).
The Eleventh Amendment bars any claims brought against a state or
state agency unless Congress has abrogated the state’s immunity or the state
has expressly waived its immunity. Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 99 (1984). Congress must make its intention to abrogate the
states’ constitutionally secured immunity “unmistakably clear in the language
of the statute.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985).
South Dakota is not consenting to this suit and § 1983 does not contain a clear
legislative statement abrogating a state’s immunity under the Eleventh
Amendment. See Larson v. Kempker, 414 F.3d 936, 939 n.3 (8th Cir. 2005).
Nor has Congress expressed a clear intention to abrogate the states’ immunity
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rights from claims brought under RICO. See McMaster v. Minnesota, 819 F.
Supp. 1429, 1434 (D. Minn. 1993), aff’d, 30 F.3d 976 (8th Cir. 1994).
In the present case, the state of South Dakota and the Office of the
Attorney General must be dismissed because they are a state and a state
agency. See SDCL §§ 1-11-1 to -35 (establishing Office of the Attorney General
as a state agency). As for Attorney General Marty Jackley, any claims asserted
against him must also be dismissed because they are interpreted by the court
as being against him in his official capacity. None of Meyer’s claims specify that
they are against Jackley in his personal capacity and there is nothing
contained in the complaint to suggest that they are. See Remington v. Hoopes,
611 F. App’x 883, 885 (8th Cir. 2015) (per curiam) (requiring a clear statement
indicating that the plaintiffs are suing the defendants in their individual
capacities).
The Eleventh Amendment bars all alleged claims seeking damages
against South Dakota, Office of the Attorney General, and Marty Jackley. This
includes both Meyer’s § 1983 claim and Meyer’s RICO claim. Thus, the court
does not have subject matter jurisdiction and the motion to dismiss (Docket
13) is granted.
CONCLUSION
Meyer has failed to state a claim upon which relief may be granted
against Minnehaha County, the Minnehaha County State’s Attorney’s Office,
Aaron McGowan, Minnehaha Public Defender’s Office, and Lisa Capellupo. The
Court does not have subject matter jurisdiction over Meyer’s claims against
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Judge Schroeder, Judge Johnson, the State of South Dakota, the Office of the
Attorney General, or Marty Jackley. Thus, it is
ORDERED that defendants’ motions to dismiss without prejudice
(Dockets 10, 13, 16) are granted.
DATED August 1, 2018.

BY THE COURT:

Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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