Oglala Sioux Tribe et al v. Van Hunnik et al

Filing 341

ORDER denying 290 Motion for Partial Summary Judgment; denying 295 Motion for Partial Summary Judgment. Signed by Chief Judge Jeffrey L. Viken on 9/29/17. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

CIV. 1 3-5020-JLV

OGLALA SIOUX TRIBE and ROSEBUD
SIOUX TRIBE, as parens patriae, to
protect the rights of their tribal
members; MADONNA PAPPAN, and
LISA YOUNG, individually and on behalf
of all other persons similarly situated,

ORDER

Plaintiffs,
vs.
LISA FLEMING; MARK VARGO;
HONORABLE CRAIG PFEIFLE; and
LYNNE A. VALENTI, in their official
capacities,
Defendants.

INTRODUCTION

Plaintiffs filed two motions for summary judgment against Lisa Fleming
and Lynne Valenti, in their official capacities ("DSS Defendants "), together with
statements of undisputed material facts and two legal memoranda.
290, 291

&

294-97).

(Dockets

The first summary judgment motion seeks judgment

against the DSS Defendants for their alleged "inadequate training and
supervision " of their staff in the Department of Social Services Division of Child
Protection Services Offices in Region 1 , Pennington County, South Dakota
("inadequate training and supervision claim ").

(Docket 290 at p. 1).

The

second motion for summary judgment seeks judgment against the DSS
Defendants for their alleged "failure to ensure that placement of Indian children

end[s] when the reason for placement ends " ("failure to end placement claim ").
(Docket 295).
The DSS Defendants filed an objection to plaintiffs'motions together with
a supporting affidavit.

(Dockets 313

&

314).

Defendants'objection contends

plaintiffs'present motions for summary judgment address claims not included in
the complaint and are therefore not properly before the court.
p. 12).

(Docket 313 at

Plaintiffs filed a response in opposition to the objection.

(Docket 334).

The DSS Defendants filed a reply brief in support of their objection.

(Docket

335).
The DSS Defendants also filed extensive responses to both summary
judgment motions, including responses to plaintiffs'statements of undisputed
facts and two legal memoranda.
briefs in support of both motions.

(Dockets 3 1 6-19
(Dockets 330

&

&

326).

Plaintiffs filed reply

333).

For the reasons stated below, the DSS Defendants'objection (Docket 313)
is granted.
ANALYSIS

The DSS Defendants argue plaintiffs'two motions for summary judgment
are improperly before the court because they constitute additional "claims not
set forth in [the] Complaint. "

(Docket 313 at p. 2).

Defendants assert plaintiffs'

motion for summary judgment on the inadequate training and supervision claim
includes two grounds not included in the failure to train claim in the complaint,
namely:
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[The DSS) Defendants have failed to adequately train their staff
regarding how and when to return children to their homes; arid
[The DSS) Defendants have failed to adequately supervise their staff
regarding how and when to return children to their homes.
Id.at p.5.

The DSS Defendants argue plaintiffs may not amend their complaint

to incorporate these new claims through "a brief ... advocating summary
judgment."

Id. at p. 9 (references omitted). "In order to have these claims

considered for summary judgment," DSS Defendants submit "Plaintiffs should
be required to seek to amend their [c]omplaint and include the allegations upon
which they now seek summary judgment,as required by Rule 8(a)."

Id.at p. 1 1.

Plaintiffs assert the "[c]omplaint already contains an express claim of
inadequate training and supervision and therefore there is no need to add
another one. "

Id. at p. 5 (emphasis omitted).

Plaintiffs contend that only

during discovery on their failure to train claim did they "learn[] for the first time
that the DSS Defendants had a policy of retaining children even after the reason
for placement given parents at the 48-hour hearing has ended. "

Id. at p. 8.

Plaintiffs argue "[t]he only difference is that the new issue involves a situation
that occurs shortly after the 48-hour hearing rather than at the 48-hour hearing.
The two issues,however,raise the same claim: that parents are being denied
notice of the reason for continued custody. "

Id. (emphasis omitted). "Because

this claim is already in the [c]omplaint," plaintiffs submit "there is no need . ..to
amend the [c]omplaint to add another one."

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Id.

The court previously resolved in plaintiffs' favor counts I and II of the
complaint. (Dockets 150, 217, 301, 302, 303

&

304). Those claims asserted

all of the "defendants' policies, practices and procedures relating to the removal
of Native American children from their homes during state court 48-hour
hearings violate [25 U.
S.C.§ 1922] and the Due Process Clause of the Fourteenth
Amendment."
rulings.

(Docket 150 at p.8). All defendants appealed the court's earlier

(Dockets 309, 312

&

321).

The only remaining claim in plaintiffs' complaint requiring resolution is a
failure to train claim.

See Docket 1 iii! 46, 48, 97

&

128. In an earlier order

denying all of the defendants' motions to dismiss the complaint, the court
addressed plaintiffs' failure to train claim. "The complaint ... alleges DSS
defendants failed to train their staff on how to seek and secure for Indian parents
the federal rights to which those parents are entitled and, as a result, Indian
parents suffer irreparable injury. "

(Docket 69 at p. 23) (referencing Docket 1 at

iii! 46 & 48). "Because [the DSS Defendants] . ...[do not] appear at the 48-hour

proceedings personally, the claims made by plaintiffs relate to a 'failure to train'
other DSS employees whom they supervise. To survive a motion to dismiss on a
'failure to train' claim, plaintiffs must show (1) the policymaker's training
practices were inadequate, (2) the policymaker was deliberately indifferent to the
rights of the plaintiffs, and (3) the training deficiencies cause constitutional
deprivation."

Id. (internal citation omitted).

"Specifically, plaintiffs allege DSS

defendant� contribute to the plaintiffs' injuries by failing to provide a copy of the
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petition and ICWA affidavit to Indian parents prior to the 48-hour hearing, by
adopting the unconstitutional practices of the circuit court during 48-hour
hearings, by failing to ensure Indian parents receive an adequate
post-deprivation hearing, and by failing to properly work with Indian parents
following the 48-hour hearings. "

Id. at p. 24.

On this basis, the court found

plaintiffs stated a viable failure to train claim and denied the DSS defendants'
motions to dismiss.

Id. at p. 43.

Plaintiffs acknowledge the March 30, 2015, order (Docket 150) "resolved
all of Plaintiffs'claims except one, which is: Have [the DSS Defendants]
adequately trained their staff to comply with Section 1922 of the Indian Child
Welfare Act, 25 U.S. C. § 1901

(Docket 159 at pp. 1-2).

et seq.?"

It is apparent

plaintiffs now want to expand the failure to train claim to include additional
allegations the DSS Defendants failed to supervise their personnel for activities
occurring after completion of the 48-hour hearing and the DSS Defendants failed
to end placement when the reasons for placement no longer exist.
Under Rule 8(a)(2), a "pleading that states a claim for relief must contain
. . . a short and plain statement of the claim showing that the pleader is entitled
to relief. "

Fed. R. Civ. P. 8(a)(2). The purpose of this Rule is to give the

defendants fair notice of plaintiffs'claims and the grounds upon which those
claims rest.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Ultimately,

the purpose of the rule is to see "that all pleadings shall be so construed as to do

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substantial justice. "

Id. (citing Fed. R. Civ. P. 8(f); internal quotation marks and

brackets omitted).
Plaintiffs may not "raise a new cause of action on a motion for summary
judgment. "

Plucker v. United Fire

&

Casualty Co., No. CIV. 12-4075, 20 1 5 WL

5697334, at *6 (D.S.D. Sept. 28, 2015) (referencing Gilmour v. Gates, McDonald
&

Co., 382 ;F.3d 1 312, 1 315 (11th Cir. 2004)).

See also McFarlane-Hammond v.

Premium Capital Funding, LLC, No. 1 1 -cv-01927, 2012 WL 6652920, at *7 (D.
Minn. Dec. 2 1 , 2012) ("Although courts allow a liberal pleading standard for civil
complaints, this standard 'does not afford plaint_iffs with an opportunity to raise
new claims at the summary judgment stage.' ") (citing Gilmour, 382 F.3d at
1 3 1 4- 1 5); Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 617 (4th Cir.
2009) ("We have previously held, along with the Fifth, Sixth, Seventh, and
Eleventh Circuits, that a plaintiff may not raise new claims after discovery has
begun without amending his complaint.") (collecting cases).
Plaintiffs' complaint includes a claim for inadequate training and
supervision of DSS personnel allegedly occurring before the completion of the
48-hour hearing.

(Docket 1 iii! 113- 1 20).

Count III also includes allegations

DSS personnel are inadequately trained to work with Native American families
after completion of their 48-hour hearing.

Id. iii! 1 2 1 -129.

Plaintiffs'summary judgment motions detail alleged failures to promulgate
supervision policies and deadlines to assure DSS compliance with ICWA
requirements. Though plaintiffs assert their DSS inadequate staffing evidence
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is not a free-standing claim, the court's order on summary judgment could not
avoid analysis of this issue despite plaintiffs' failure to plead it in the complaint.
When additional claims develop through the discovery process, those previously
unknown claims must be asserted in an amended complaint.

United States v.

Vorachek, 563 F.2d 884, 886 (8th Cir. 1 977) (internal citation omitted); see also
Fed. R. Civ. P. 15 (a) and (d).
Applying the Rule 8 standard, plaintiffs' complaint does not give the DSS
Defendants fair notice of the new and expanded bases of plaintiffs' inadequate
training and supervision claim after 48-hour hearings are concluded or for
plaintiffs' failure to end placement claim.
Hammond, supra.

Plucker, supra; and McFarlane­

Those new claims may only be asserted if plaintiffs amend

their complaint under Fed. R. Civ. P. 15.

The present motions for summary

judgment are denied without prejudice.
ORDER

Based on the above analysis, it is
ORDERED that the DSS Defendants' objection (Docket 313) is granted.
IT IS FURTHER ORDERED that plaintiffs' motions for summary judgment
(Dockets 290

&

295) are denied without prejudice.

Dated September 29, 2017.

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