Soltesz v. Rushmore Plaza Civic Center

Filing 199

ORDER re: final policymaker jury instructions. Signed by U.S. District Judge Lawrence L. Piersol on 7/7/17. (DJP)

UNITED STATES DISTRICT COURT

JUL 0 7 2017

DISTRICT OF SOUTH DAKOTA

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WESTERN DIVISION
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Hi
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KYLESOLTESZ,

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CIV 11-5012

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Plaintiff,

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vs.

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RUSHMORE PLAZA CIVIC CENTER,

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a political subdivision of the City of
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Rapid City, and CITY OF RAPID CITY, *
a political subdivision of the State of
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South Dakota,

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Defendants.

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In accordance with this Court's Order issued on April 7, 2017(doc. 190), the parties have

submitted briefs regarding the final policymaker for the City ofRapid in this case. State law and the

Rapid City Municipal Code reveal that the Civic Center Board ofDirectors serve as the official with
the final policymaking authority. See SDCL §§ 9-52-1, 9-52-2, 9-52-23; Rapid City Municipal
Ordinances Chap. 2.76. The parties agree that the Civic Center Board is the final policymaker for
the City regarding concessionaire leases.

Defendants argue that they are entitled to a Judgment of Dismissal on the claims under 42
U.S.C. § 1983 because Soltesz failed to produce evidence at trial establishing that the Civic Center

Board took any action with respect to Soltesz. (Doc. 194 at 2,13.) But Soltesz testified at trial that
he was told there was going to be a board meeting on February 8,2011 involving the decision. Trial

Transcript [hereinafter "TT"] 123:19-23. Soltesz received a letter firom the general manager ofthe
Civic Center on February 8,2011,advising him that his lease was terminated; the City Attorney and
the Civic Center Board President were copied on the letter. Trial Exhibit 2; Complaint Attachment

2. Soltesz argued that this evidence creates an inference that the Civic Center Board was involved

in the decision to terminate his lease. TT 493:8-24. The district court commented on this evidence

after Defendants moved for ajudgment as a matter oflaw on the § 1983 clairns:
Mr. Soltesz was examined on direct and cross about conversations with Mr.

Maliske. The testimony from Mr. Soltesz, as I recall it — the jury will recall it for
itself ~ was that a meeting was to be held on February 8, 2011, and Mr. Maliske's
conversation with Mr. Soltesz is in evidence,it's been subject to direct and cross. It's
either direct evidence that there was a meeting on February 8th or there's an
inference that there was.

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Followed by Plaintiffs Exhibit 2,the February 8th termination oflease letter
written by Brian Maliske as a general manager ofthe Rushmore Plaza Civic Center,
copied to City attorney Jason Green and Eddie Rykpema,the Rushmore Plaza Civic
Center board president. That termination oflease letter is dated February 8, 2011.
So I can't weigh the evidence or draw an inference on the state ofthe factual
record on this matter and deny the defendants' motion for judgment as a matter of
law on the Section 1983 claims of plaintiff.
TT 443:22-25, 444:1-10. Defendants are not entitled to dismissal of the § 1983 claims because

Soltesz has some evidence to support his position that the Civic Center Board was involved in the
decision to terminate his lease. As the district court said,"credibility determinations,the weighing

of evidence and the drawing oflegitimate inferences from the facts are jury functions not those of
ajudge."TT 443:15-18.

Furthermore, this Court is not free to deviate from the Eighth Circuit's mandate by

dismissing the § 1983 claims. On appeal,the Eighth Circuit concluded that "[a] final policymaker

may have deprived Soltesz ofhis constitutional rights in this case." Soltesz v. Rushmore Plaza Civic
Center, 847 F.3d 941,948(8th Cir. 2017). The Court discussed how a final policymaker can create

municipal liability not only by their own actions, but also by delegating policymaking authority to
a subordinate or by ratifying the actions ofa subordinate, id. at 946, and ratification is a question of
fact for thejury,id. at 947. Finally,the Eighth Circuit directed the district courton remand to identify

the final policymaker as a matter oflaw prior to trial, and to hold a new trial. See id. at 947-48. The
necessary implication ofthe Eighth Circuit's opinion is that,ifthe district court concludes on remand
that the Civic Center Board is the final policymaker,ajury should decide onretrial whether the Civic
Center Board was involved in the decision to terminate Soltesz's lease, delegated policymaking

authority, or ratified the actions of a subordinate. In order to comply with the Eighth Circuit's
mandate,it is necessary to hold a second trial where thejury is informed that the Civic Center Board
■is the final policymaker and then allow the jury to weigh the evidence, determine credibility and
draw legitimate inferences regarding the Board's involvement, or lack thereof, in the decision to
terminate Soltesz's lease. See,e.g.,Houghton v. McDonnellDouglas Corp., 627 F.2d 858,865 (8th

Cir. 1980) (quoting Thornton v. Carter, 109 F.2d 316, 320 (8th Cir. 1940)) (holding that district
court must construe the appellate court's opinion inits entirety and "is without power to do anything

which is contrary to either the letter or spirit of the mandate construed in the light of the opinion of
[the appellate] court deciding the case"). Accordingly,
IT IS ORDERED that the parties' proposed jury instructions shall include an
instruction that the Civic Center Board of Directors was the final policymaker for
Defendants in thjs case. Plaintiff shall also include proposed instructions on

delegation and ratification if he intends to proceed on those theories.

lili

Dated this| day of July, 2017.
BY THE COURT:

tawrence L. Piersol
Jnited States District Judge
ATTEST:

JOSEPH HAAS, C^RK
BY:
DEPUTY