Tracy v. Elshere et al
1915A SCREENING ORDER FOR SERVICE IN PART AND DISMISSAL IN PART. Signed by U.S. District Judge Karen E. Schreier on 6/7/2021. (CLR)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
EUGENE EDWARD TRACY,
DAWN ELSHERE, Circuit Court Judge,
in her individual and official capacity,
DAVE ERICKSON, Chief of Police, City
of Brookings Police Department, in his
individual and official capacity, SETH
BONNEMA, Officer at Brookings County
Jail, in his individual and official
capacity, HEDI SCHULTZ, Sanford
Health RN, in her individual and official
capacity, SEAN DOREMUS, Police
Officer for Brookings County Police
Department, BROOKINGS POLICE
DEPARTMENT, and SANFORD HEALTH
1915A SCREENING ORDER FOR
SERVICE IN PART AND DISMISSAL
Plaintiff, Eugene Edward Tracy, filed a prisoner pro se civil rights
lawsuit. Docket 1. This court granted Tracy leave to proceed in forma pauperis
but required him to pay an initial partial filing fee. Docket 6. Tracy timely paid
his fee on May 27, 2021. This court will now screen Tracy’s complaint under 28
U.S.C. § 1915A.
The facts alleged in Tracy’s complaint are: that on February 19, 2020,
Officer Seth Bonnema “signed a search warrant affidavit for [Tracy’s] blood at
9:32 p.m. . . . .” Docket 1-1 at 1. At 10:43 p.m., Tracy’s blood was drawn by
Nurse Hedi Schultz at Sanford Health Hospital without a signed search
warrant and without Tracy’s consent. Id.; Docket 1 at 6. Tracy claims that he
told Officer Sean Doremus and Officer Bonnema that he did not consent to the
blood draw and that Officer Doremus had to hold him down while his blood
was “forcefully” taken. Docket 1 at 6. Schultz allegedly “stabbed [Tracy]
multiple times” with the needle and she had to try multiple times before the
blood draw was successful. Id.
The search warrant was signed and issued the next day on February 20,
2020, by South Dakota Third Circuit Court Judge Dawn Elshere. Docket 1-1 at
1. Tracy claims that he has scars from the blood draw and that he suffers from
Post-Traumatic Stress Disorder and Depression because of the occurrence.
Docket 1 at 6. He seeks over 8 million dollars in damages. Id. Tracy’s defense
attorney, Jared Gass, moved to suppress the results of the blood test and
claimed the blood draw was a violation of Tracy’s Fourth Amendment right to
be free from an unreasonable search. Docket 1-1 at 1. Tracy was charged and
convicted in state court on one count of Ingestion of a Controlled Substance.
Docket 1 at 6.
The court must assume as true all facts well pleaded in the complaint.
Estate of Rosenberg v. Crandell, 56 F.3d 35, 36 (8th Cir. 1995). Civil rights and
pro se complaints must be liberally construed. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir. 2004). Even
with this construction, “a pro se complaint must contain specific facts
supporting its conclusions.” Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.
1985); see also Ellis v. City of Minneapolis, 518 F. App’x 502, 504 (8th Cir.
2013). Civil rights complaints cannot be merely conclusory. Davis v. Hall, 992
F.2d 151, 152 (8th Cir. 1993); Parker v. Porter, 221 F. App’x 481, 482 (8th Cir.
A complaint “does not need detailed factual allegations . . . [but] requires
more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). If it does not contain these bare essentials, dismissal is appropriate.
Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Twombly requires that
a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level . . . on the assumption that all of the complaint’s
allegations are true.” Twombly, 550 U.S. at 555; see also Abdullah v.
Minnesota, 261 F. App’x 926, 927 (8th Cir. 2008) (noting that a complaint must
contain either direct or inferential allegations regarding all material elements
necessary to sustain recovery under some viable legal theory). Under 28 U.S.C.
§ 1915A, the court must screen prisoner complaints and dismiss them if they
“[are] (1) frivolous, malicious, or fail to state a claim upon which relief may be
granted; or (2) seek monetary relief from a defendant who is immune from
such relief.” 28 U.S.C. § 1915A(b).
Claim against Brookings Police Department
Tracy names the Brookings Police Department as a defendant but the
Eighth Circuit has held that entities such as the police departments “are not
juridical entities suable” under § 1983. Ketchum v. City of W. Memphis, Ark,
974 F.2d 81, 82 (8th Cir. 1992). Tracy’s claim against the Brookings Police
Department is dismissed under 28 U.S.C. §§ 1915(e)(B)(i-ii) and 1915A(b)(1).
Claim against Judge Dawn Elshere
Tracy names South Dakota Third Circuit Court Judge Dawn Elshere as a
defendant. Docket 1 at 2. Judge Elshere allegedly signed the search warrant on
February 20, 2020. Docket 1-1 at 1. Judges are generally immune from suit if
the judge had jurisdiction over the party. See Stump v. Sparkman, 435 U.S.
349, 356 (1978) (“[T]he necessary inquiry in determining whether a defendant
judge is immune from suit is whether at the time he took the challenged action
he had jurisdiction over the subject matter before him.”). “A judge will not be
deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority; rather, he will be subject to
liability only when he has acted in the ‘clear absence of all jurisdiction.’ ” Id. at
356-57 (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)).
Judges are immune from suit with two narrow exceptions. See Schottel v.
Young, 687 F.3d 370, 373 (8th Cir. 2012). “First, a judge is not immune from
liability for nonjudicial actions, i.e., actions not taken in the judge's judicial
capacity. Second, a judge is not immune for actions, though judicial in nature,
taken in the complete absence of all jurisdiction.” Id. (quoting Mireles v. Waco,
502 U.S. 9, 11–12 (1991)).
These exceptions do not apply here. Judge Elshere had jurisdiction over
Tracy when she signed the search warrant, and her actions were taken within
her judicial capacity. Thus, Tracy’s claim against Judge Elshere is dismissed
under 28 U.S.C. §§ 1915(e)(B)(i-ii) and 1915A(b)(1).
Claim against Dave Erickson
Dave Erickson is the Chief of Police for the Brookings Police Department.
Docket 1 at 2. Only state actors whose personal conduct caused the
deprivation of a federal right are liable under § 1983. Pulaski Cnty. Republican
Comm. v. Pulaski Cnty. Bd. of Election Comm'rs., 956 F.2d 172, 174 (8th Cir.
1992) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). Section “1983
liability requires personal involvement in or direct responsibility for actions
resulting in [the] violation.” Carter v. Hassell, 316 F. App’x 525, 525 (8th Cir.
2008) (citing Martin, 780 F.2d at 1338); see also Marchant v. City of Little Rock,
Ark., 741 F.2d 201, 204 (8th Cir. 1984) (dismissing a claim because the
individual “had no knowledge of or connection to” the alleged violation).
Tracy’s complaint does not contain facts to support that Erickson was
personally involved in the alleged violation. See Docket 1.
In the section 1983 context, supervisor liability is limited. See White v. Holmes,
21 F.3d 277, 280 (8th Cir. 1994). A supervisor cannot be held liable, on a
theory of respondeat superior, for an employee’s unconstitutional actions. Id. A
supervisor incurs liability when he or she is “personally involved in the
violation or when the supervisor's corrective inaction constitutes deliberate
indifference toward the violation.” Ottman v. City of Independence, Mo., 341
F.3d 751, 761 (8th Cir. 2003) (citing Choate v. Lockhart, 7 F.3d 1370, 1376 (8th
Cir. 1993)). “The supervisor must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what [he or she] might
see.” Id. (alteration in original) (quoting Ripson v. Alles, 21 F.3d 805, 809 (8th
Cir. 1994)). Because Tracy does not allege facts to show that Erickson was
personally involved or that supervisory liability was implicated, his claim
against Erickson is dismissed under 28 U.S.C. §§ 1915(e)(B)(i-ii) and
Claims against Hedi Schultz, Sean Doremus, and Seth Bonnema
Tracy claims that his blood was drawn without his consent and without
a search warrant. Docket 1 at 6. The Fourth Amendment protects against
“unreasonable searches and seizures[.]” U.S. Const. amend. IV. “[S]earches
conducted outside the judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth Amendment[.]” Katz v.
United States, 389 U.S. 347, 357 (1967). 1 “Police may conduct a warrantless
The Heck doctrine does not categorically barr a Fourth Amendment unlawful
search or seizure claim because the claim does “not necessarily imply the
search by requiring an individual to submit to a blood test where they have
probable cause to do so and exigent circumstances exist.” United States v.
Eagle, 498 F.3d 885, 892 (8th Cir. 2007) (citing Schmerber v. California, 384
U.S. 757, 769-71 (1966)). “Probable cause exists ‘where the known facts and
circumstances are sufficient to warrant a man of reasonable prudence in the
belief that contraband or evidence of a crime will be found.’ ” Id. (quoting
Ornelas v. United States, 517 U.S. 690, 696 (1996)). The risk of destruction of
evidence can be an exigent circumstance. Id. (citing Schmerber, 384 U.S. at
Here, there is nothing in the record to support that the officers had
probable cause and exigent circumstances to conduct a warrantless blood draw
on Tracy. Tracy alleges that Schultz, Doremus, and Bonnema were all
personally involved in the alleged violation. Docket 1 at 6, 9. Thus, Tracy has
alleged sufficient facts to support a Fourth Amendment unreasonable search
claim against Schultz, 2 Doremus, and Bonnema in their individual capacities
to survive screening under § 1915A.
invalidity of [the plaintiff’s] conviction.” Collins v. Bruns, 195 F. App’x 533, 535
(8th Cir. 2006); Heck v. Humphrey, 512 U.S. 477, 487 n.7 (1994) (noting that
because “doctrines like independent source and inevitable discovery, and
especially harmless error, such as a § 1983 action, even if successful, would
not necessarily imply that the plaintiff’s conviction was unlawful.”) (internal
2 This court does not rule on whether Schultz is considered to be a person
acting under color of state law for purposes of 42 U.S.C. § 1983. This question
of law will be addressed at a later date.
But the claim against Doremus and Bonnema in their official capacities
is dismissed. “A suit against a government officer in his official capacity is
functionally equivalent to a suit against the employing governmental entity.”
Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010).
Doremus and Bonnema are employed by the Brookings Police Department.
Docket 1 at 3, 5. Tracy’s official capacity claims against Doremus and
Bonnema are, in effect, against the City of Brookings. A municipal government
may only be sued “when execution of a government's policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy,” deprives a plaintiff of a federal right. Monell v. Dept. of
Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978). Because Tracy has not alleged
facts that would support a claim that the City of Brookings has executed an
unconstitutional policy or custom, his claims against Doremus and Bonnema,
in their official capacity, are dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and
Claim against Sanford Health Hospital
Tracy names Sanford Health Hospital (Hospital) as a defendant. Docket 1
at 3. Section 1983 imposes liability for “[e]very person who, under color of any
statute . . . of any State . . . subjects, or causes to be subjected, any citizen of
the United States . . . deprivation of any rights, privileges, or immunities
secured by the Constitution and laws . . . .” 42 U.S.C. § 1983. Tracy presents
no allegation in his complaint accusing the Hospital of a constitutional
violation but merely asserts that the alleged unconstitutional search occurred
at the Hospital. Docket 1 at 5. When a complaint does not allege facts against a
named defendant, the defendant can be dismissed. See Allen v. Purkett, 5 F.3d
1151, 1153 (8th Cir. 1993) (dismissal was proper of two defendants who were
named as defendants in the complaint, but who had no factual allegations
made against them); Krych v. Hvass, 83 F. App’x 854, 855 (8th Cir. 2003)
(dismissal was proper of defendants who were merely listed in the complaint,
and who were not alleged to have been personally involved in the constitutional
Tracy has not asserted facts to support that the Hospital had any specific
involvement in the alleged violation. Further, this court questions whether the
Hospital is considered a “person” in order to impose § 1983 liability. For these
reasons, the claim against the Hospital is dismissed under 28 U.S.C.
§§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1).
Thus, it is ORDERED:
1. That Tracy’s claims against Brookings Police Department, Judge
Dawn Elshere, Dave Erickson, and Sanford Health Hospital are
dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1).
2. That Tracy’s Fourth Amendment unreasonable search claim against
Schultz, Doremus, and Bonnema in their personal capacities
survives 28 U.S.C. § 1915A review. Claims against Doremus and
Bonnema in their official capacities are dismissed under 28 U.S.C.
§§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1).
3. That the Clerk shall send blank summons forms and Marshal
Service Form (Form USM-285) to Tracy so that he may cause the
complaint to be served upon Schultz, Doremus, and Bonnema.
4. That Tracy shall complete and send the Clerk of Courts a separate
summons and USM-285 form for each defendant. Upon receipt of the
completed summons and USM-285 forms, the Clerk of Court will
issue the summons. If the completed summons and USM-285 form
are not submitted as directed, the complaint may be dismissed.
5. The United States Marshal Service shall serve the completed
summonses, together with a copy of the complaint (Docket 1) and
this order, upon the defendants.
6. Defendants will serve and file an answer or responsive pleading to
the complaint on or before 21 days following the date of service or 60
days if the defendants fall under Fed. R. Civ. P. 12(a)(2) or (3).
7. Tracy will keep the court informed of his current address at all
times. All parties are bound by the Federal Rules of Civil Procedure
and by the court’s Local Rules while this case is pending.
Dated June 7, 2021.
BY THE COURT:
Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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