Engesser v. Fox et al
Filing
38
ORDER granting in part and denying in part 18 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 20 Motion to Dismiss; granting in part and denying in part 29 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Jeffrey L. Viken on 9/26/16. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 15-5044-JLV
OAKLEY ENGESSER,
Plaintiff,
vs.
TROOPER EDWARD FOX, of the South
Dakota Highway Patrol and TROOPER
FOX’S SUPERVISOR MICHAEL
KAYRAS, both in their official capacity
and individually; MEADE COUNTY
STATES ATTORNEY JENNIFER
UTTER; MEADE COUNTY STATES
ATTORNEY GORDON SWANSON;
MEADE COUNTY ASSISTANT STATES
ATTORNEY AMBER RICHEY; MEADE
COUNTY; and the STATE OF SOUTH
DAKOTA,
ORDER
Defendants.
INTRODUCTION
Plaintiff Oakley Engesser sues the above-captioned defendants alleging
various claims under 42 U.S.C. § 1983 as well as claims under South Dakota
state law pursuant to the court’s supplemental jurisdiction under 28 U.S.C.
§ 1367. See Docket 15 at pp. 20-35. Mr. Engesser asserts his civil rights
under the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments
of the United States Constitution were violated. Id. at 34.
Plaintiff’s complaint contains seven substantive counts and an eighth
count requesting damages. Id. at 20-35. Defendants Trooper Edward Fox and
the State of South Dakota (“State”) filed a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6). (Docket 18). Defendant Michael Kayras filed a Rule 12(b)(6)
motion to dismiss on the same grounds as those asserted by Trooper Fox.
(Docket 29). Defendants Jennifer Utter, Gordon Swanson, Amber Richey and
Meade County filed a joint Rule 12(b)(6) motion to dismiss and motion to strike.
(Docket 20). Mr. Engesser resists in part defendants’ motions. (Dockets 25, 27
& 36). For purposes of judicial economy, the court resolves all three motions
together.
FACTS
In 2001, a jury convicted Oakley “Bernie” Engesser of vehicular
homicide and two counts of vehicular battery. The sole issue at the
trial was whether Engesser or the deceased, Dorothy Finley, was
driving her Corvette when it crashed into a minivan on Interstate 90.
Neither Engesser nor Finley was wearing a seatbelt and both had
been drinking alcoholic beverages. The Corvette was going
approximately 112 miles per hour when it slammed into the back of
the minivan, spun off the road, and rolled several times before
coming to rest on its roof in the median. . . . No witness at trial
testified to seeing the driver of the Corvette. Engesser was thrown
from the car, landing face down in the median. Multiple witnesses
at trial placed him between five and ten feet from the driver’s side of
the Corvette. Engesser was unconscious and suffered a gash to the
right side of his head. Finley was trapped in the car on the
passenger side underneath the passenger seat, her body in line with
the seat. The upper part of Finley’s body was lying over the top of the
seat. She was facing the ground. Her feet were underneath the
dash. Her face was pointing toward the driver’s side. The passenger
side was crushed and the window shattered, but the roof and front
windshield were intact. Finley was pronounced dead at the scene.
Engesser v. Young, 856 N.W.2d 471, 473 (S.D. 2014) (some internal quotation
marks and citations omitted); see also Docket 15 at ¶¶ 63-65.
Because the procedural history and factual circumstances underlying Mr.
Engesser’s claims are well documented in prior judicial opinions and in plaintiff’s
2
amended complaint, additional recitation of salient facts is included in the
discussion section of the order.
DISCUSSION
I.
Rule 12(b)(6) Motion to Dismiss Standard
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations . . . a plaintiff’s obligation to provide the grounds
of his entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do. . . . Factual
allegations must be enough to raise a right to relief above the speculative level
. . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations, quotation marks and brackets omitted). The “plausibility standard”
at the pleading stage requires a showing greater than the mere possibility of
misconduct yet less than the probability of misconduct. Id. at 556-58.
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim
upon which relief may be granted, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’
. . . 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 570) (other internal citation omitted). The Court in Iqbal
expounded on the “plausibility standard” articulated in Twombly:
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to “state a claim to relief that is
3
plausible on its face.” 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. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts
that are “merely consistent with” a defendant’s liability, it “stops
short of the line between possibility and plausibility of ‘entitlement
to relief.’ ” . . .
[T]he tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice. . . . Rule 8 marks a
notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the doors
of discovery for a plaintiff armed with nothing more than
conclusions. . . . [O]nly a complaint that states a plausible claim for
relief survives a motion to dismiss. Determining whether a
complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its
judicial experience and common sense. But where the well-pleaded
facts do not permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged―but it has not
“show[n]”—“that the pleader is entitled to relief.”
556 U.S. at 678-79 (internal citations omitted).
“In analyzing a 12(b)(6) motion, this court assumes all factual allegations
in the complaint are true, but the complaint must contain sufficient facts, as
opposed to mere conclusions, to satisfy the legal requirements of the claim to
avoid dismissal.” Taxi Connection v. Dakota, Minnesota & E. R.R. Corp., 513
F.3d 823, 826 (8th Cir. 2008) (internal quotation marks omitted). While the
court must accept plaintiff’s “factual allegations . . . [it] need not accept as true
[his] legal conclusions even if they are cast in the form of factual allegations . . . .”
Ashley v. U.S. Department of Interior, 408 F.3d 997, 1000 (8th Cir. 2005)
4
(internal citations and quotation marks omitted). “A motion to dismiss should
be granted if it appears beyond doubt that the plaintiff can prove no set of facts
which would entitle him to relief.” Id.; see also Fusco v. Xerox Corp., 676 F.2d
332, 334 (8th Cir. 1982). “Where the allegations show on the face of the
complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is
appropriate.” Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir.
2008).
“[C]ourts must consider the complaint in its entirety, as well as other
sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to
dismiss, in particular, documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The court can consider matters
in the public record when resolving a Rule 12(b)(6) motion to dismiss. See
Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986); see also Porous Media Corp. v.
Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (noting courts can consider
“matters of public record, orders, items appearing in the record of the case, and
exhibits attached to the complaint”) (quoting 5A Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)); Vacanti v. Sunset
Fin. Servs., Inc., No. 8:08CV436, 2009 WL 792387, at *3 (D. Neb. Mar. 23, 2009)
(noting “documents necessarily embraced by the complaint are not considered to
be matters outside the pleading”) (internal quotation marks and citations
omitted).
5
The court denies Ms. Utter’s, Mr. Swanson’s, Ms. Richey’s and Meade
County’s request to strike the “procedural history” portion of Mr. Engesser’s
complaint. (Docket 21 at p. 4). The “procedural history” section of Mr.
Engesser’s amended complaint is important. The circumstances forming the
basis for his claims have been in various stages of criminal and civil litigation for
over fifteen years and have been the subject of several state and federal judicial
opinions providing dispositive resolutions for many issues relating to Mr.
Engesser’s case. See State v. Engesser, 661 N.W.2d 739 (S.D. 2003) (“Engesser
CR.”); Engesser v. Dooley, 457 F.3d 731 (8th Cir. 2006) (“Engesser 2006”);
Engesser v. Dooley, 759 N.W.2d 309, 314 (S.D. 2008) (“Engesser 2008”);
Engesser v. Dooley, 823 F. Supp. 2d 910, 913 (D.S.D. 2011), rev’d and
remanded, 686 F.3d 928 (8th Cir. 2012) (“Engesser 2011”); Engesser v. Dooley,
686 F.3d 928, 934 (8th Cir. 2012) (“Engesser 2012”); Engesser v. Young, 856
N.W.2d 471, 473 (S.D. 2014) (“Engesser 2014”). The prior opinions are
referenced in the amended complaint and are also part of the public record. See
Docket 15 at pp. 17-20. The court takes judicial notice of the opinions.
II.
Plaintiff’s Substantive Claims
A.
Synopsis
Plaintiff’s amended complaint contains seven substantive counts against
seven defendants. Count one alleges five theories of § 1983 liability against all
seven defendants: (1) malicious prosecution; (2) false arrest; (3) use of unreliable
and fraudulent investigative techniques; (4) procurement of unreliable and
6
fabricated evidence; and (5) wrongful conviction and imprisonment. Id. at 20.
In count two, plaintiff alleges a § 1983 conspiracy claim against all defendants
but the State. Id. at 23. In count three, plaintiff alleges a § 1983 claim for
oppression of exculpatory evidence against all defendants but the State. Id. at
25. In count four, plaintiff alleges a § 1983 claim for unconstitutional policies,
practices and customs against all defendants but the State. Id. at 26-30. In
count five, plaintiff alleges a state law claim for negligence resulting in wrongful
incarceration and continued detention against all defendants. Id. at 30. In
count six, plaintiff asserts a state law claim for false arrest against all
defendants. Id. at 31. In count seven, plaintiff asserts a state law claim for
malicious prosecution against all defendants. Id. at 32.
Plaintiff’s amended complaint is not a model of clarity under Fed. R. Civ. P.
8. In addition to plaintiff’s subsequent clarifications regarding abandoned
claims and the capacity in which certain defendants are being sued, plaintiff
“adopts by reference all prior and subsequent paragraphs of this complaint” into
every count of the complaint whether those paragraphs are applicable or not.
See, e.g., id. at ¶ 77, 98 & 105. Plaintiff’s pleading practice effectively turns the
amended complaint into 35 pages of discrete allegations in which the plaintiff
frequently only identifies the applicable opposing party collectively as
“defendants,” obscuring which claims apply to which defendants. Further, in
counts 2-7, plaintiff lists “South Dakota Highway Patrol” as a named defendant
despite failing to identify it as a party in the amended complaint. Id. at 1-2.
7
The lack of clarity in the amended complaint complicates the court’s task of
parsing the pleading for purposes of resolving defendants’ motions to dismiss.
B.
Legal Issues Common to Multiple Claims or Defendants
1.
Statute of Limitations
Defendants make various statutes of limitation arguments asserting Mr.
Engesser’s § 1983 claims are time barred. In Heck v. Humphrey, the Supreme
Court held:
[I]n order to recover damages for [an] allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, a
§ 1983 plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas
corpus, 28 U.S.C. § 2254.
512 U.S. 477, 486-87 (1994) (emphasis added).
The Heck Court further instructs:
A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under
§ 1983. Thus, when a state prisoner seeks damages in a § 1983
suit, the district court must consider whether a judgment in favor of
the plaintiff would necessarily imply the invalidity of his conviction
or sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has
already been invalidated.
Id. at 487 (emphasis in original).
Defendants argue Mr. Engesser did not receive a favorable termination of
his underlying criminal conviction. As a result, the time within which he could
bring his § 1983 claims was not tolled under Heck and the applicable statutes of
8
limitation have run and his claims are time barred. (Dockets 34 at pp. 11-13
& 21). In Engesser 2014, the South Dakota Supreme Court upheld the state
circuit court’s grant of Mr. Engesser’s writ of habeas corpus and order for a new
trial under SDCL § 21-27-5.1(1). 856 N.W.2d at 484. In reaching this
decision, the Court “conclude[d] there is substantial evidence to support the
circuit court’s conclusion that Engesser established by clear and convincing
evidence that no reasonable juror would have found him guilty of the underlying
offense.” Id. Following the Supreme Court’s decision, South Dakota Attorney
General Marty Jackley announced “the State does not intend to move forward
with a second trial. The State does reserve the right to evaluate any further
evidence that may surface regarding any potential future action.” (Docket
26-1).
Notwithstanding Attorney General Jackley’s exercise of prosecutorial
discretion, Mr. Engesser received a favorable termination of his underlying
criminal case on November 12, 2014, when the South Dakota Supreme Court
upheld the circuit court’s grant of his writ of habeas corpus. The South Dakota
Supreme Court’s opinion speaks for itself: “the evidence offered in [Mr.]
Engesser’s trial that he was the driver was neither compelling nor substantial.
And his newly discovered eyewitness testimony presents reliable proof, along
with all the evidence, to conclude that no reasonable fact finder would have
found [Mr.] Engesser guilty of the offenses charged against him.” Engesser
2014, 856 N.W.2d at 484 n.4 (citing SDCL § 21-27-5.1(1)). Mr. Engesser
9
satisfied Heck’s favorable termination requirement. Except for Mr. Engesser’s
false arrest claims, which he has abandoned, his surviving § 1983 claims imply
the invalidity of his underlying conviction, so they did not accrue until November
12, 2014, when the South Dakota Supreme Court invalidated his conviction.
See Heck, 512 U.S. at 489-90 (“Just as a cause of action for malicious
prosecution does not accrue until the criminal proceedings have terminated in
the plaintiff’s favor . . . so also a § 1983 cause of action for damages attributable
to an unconstitutional conviction or sentence does not accrue until the
conviction or sentence has been invalidated.).
2.
Sovereign Immunity and the Eleventh Amendment
“The Eleventh Amendment generally bars suits for damages against a state
or state officials in their official capacities unless the state waives its sovereign
immunity.” Christensen v. Quinn, 45 F. Supp. 3d 1043, 1059 (D.S.D. 2014),
reconsideration denied, Civ. No. 10-4128, 2014 WL 6471378 (D.S.D. Nov. 18,
2014) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989)).
“Immunity from suit is a question of law for the court, not a question of fact for a
jury to decide.” Id. at 1059 (citing Lopez v. Mendez, 432 F.3d 829, 835 (8th Cir.
2005)).
Mr. Engesser asserts Trooper Fox and Mr. Kayras “had insurance coverage
through the Highway Patrol’s participation in a risk-sharing pool known as the
South Dakota Public Assurance Alliance [(“SDPAA”)].” (Docket 25 at p. 12).
The SDPAA is another name for South Dakota’s required self-insurance known
10
as the public entity pool for liability (“PEPL”). See Goddard v. City of Deadwood,
No. CIV. 09-5069, 2011 WL 4549171, at *11 (D.S.D. June 3, 2011), report and
recommendation adopted, No. CIV. 09-5069, 2011 WL 4549158 (D.S.D. Sept.
29, 2011), aff’d sub nom. Goddard v. S. Dakota Pub. Assur. All., 687 F.3d 965
(8th Cir. 2012) (citing South Dakota Public Entity Pool for Liability v. Winger, 566
N.W.2d 125, 126 (S.D. 1997)).
At the outset, the court notes Mr. Engesser did not respond to the State’s
argument that it has not waived its sovereign immunity. In his response to
Trooper Fox’s and Mr. Kayras’ motion to dismiss, Mr. Engesser indicated he was
not suing them in their official capacities in his § 1983 claims. See Docket 25 at
p. 3; see infra Part I.B.3. “A suit against a public employee in his or her official
capacity is merely a suit against the public employer.” Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (citing Kentucky v. Graham, 473
U.S. 159, 165 (1985)). In light of Mr. Engesser’s lack of a response and
concession concerning his official capacity claims against Trooper Fox and Mr.
Kayras, the court finds he has abandoned his claims against the State.
“Furthermore, neither a state nor its officials acting in their official
capacities are ‘persons’ who may be sued for money damages under § 1983.”
Christensen, 45 F. Supp. 3d at 1059 (citing Lapides v. Bd. of Regents of Univ.
Sys. of Ga., 535 U.S. 613, 617 (2002)). Plaintiff seeks only money damages in
his amended complaint. (Docket 15 at pp. 34-35). Finally, “respondeat
superior or vicarious liability will not attach under § 1983.” Rutan v. State of S.
11
Dakota, No. CIV. 05-4070, 2005 WL 1398596, at *3 (D.S.D. June 14, 2005)
(citing Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 778 (8th Cir. 2001)). The
court dismisses Mr. Engesser’s § 1983 claims against the State.
The court will not dismiss Mr. Engesser’s individual capacity § 1983
claims against Trooper Fox and Mr. Kayras on the basis of sovereign immunity.
The South Dakota Supreme Court acknowledged:
Under [its] decision in Request for Advisory Opinion, 379 N.W.2d
822 (S.D. 1985), PEPL would not qualify as liability insurance to
waive sovereign immunity under SDCL 21–32–16; therefore, SDCL
21–32–17 purports to grant absolute and complete immunity.
However, under the 1991 amendment to SDCL 21–32A–2, PEPL
would represent an effective waiver of sovereign immunity as a
“risk-sharing pool.”
Kyllo v. Panzer, 535 N.W.2d 896, 900 n.7 (S.D. 1995).
“Under the current statutory scheme, unless a claim falls within PEPL
fund coverage, the doctrine of sovereign immunity applies to abrogate that
claim.” Id. at 900. “The PEPL fund provides no payment for, among other
things, non-economic damages, including, but not limited to, damages for pain,
suffering, inconvenience, physical impairment, disfigurement, loss of society and
companionship, and hedonic damages.” Id. (internal quotation marks and
brackets omitted).
In Kyllo, the South Dakota Supreme held:
The common law of negligence existed well before the South Dakota
Constitution, as did employees’ personal liability for their wrongful
conduct. The legislature does not have the authority to wholly
abrogate such common-law actions guaranteed by the constitution
. . . . It therefore can impose only reasonable restrictions that do
not infringe on these protected rights. . . . Considering the history of
12
sovereign immunity, the common law of negligence and the South
Dakota Constitution, we agree that SDCL 21–32–17 and 21–32A–2
are unconstitutional so far as they extend sovereign immunity to
state employees performing ministerial functions.
Id. at 903 (citations omitted).
At this juncture, the court is unaware whether Trooper Fox and Mr. Kayras
participated in the PEPL fund and, if so, what the terms of the agreement were.
If these defendants did participate in the PEPL fund, sovereign immunity has
been waived to the extent provided in the agreement. This information can be
readily obtained in discovery and, if it is determined neither defendant
participated in the PEPL fund, it is the proper subject of a defense motion for
summary judgment. The court’s finding is buttressed by plaintiff’s many
allegations of bad faith against the defendants, which the court must accept as
true. Under South Dakota’s Constitution and common law, if sovereign
immunity does not extend to a state employee negligently performing a
ministerial function, see Kyllo, 535 N.W.2d at 903, it does not extend to a state
employee acting in bad faith. Cf. B.W. v. Meade Cty., 534 N.W.2d 595, 598 (S.D.
1995) (discussing concepts of negligence and good faith in resolving a statutory
immunity issue under SDCL § 26-8A-14)). Defendants’ motions to dismiss on
this basis are denied.
3.
Trooper Fox and Mr. Kayras
Mr. Engesser clarified that his state law claims are brought against
Trooper Fox in his official capacity and his § 1983 claims are brought against
Trooper Fox in his individual capacity. (Docket 25 at p. 3) (“The only claims
13
against Trooper Fox in his official capacity are common law tort claims. Plaintiff
concedes that a [§] 1983 cause of action may not be brought against Trooper Fox
in his official capacity.”). The court applies Mr. Engesser’s clarification to his
claims against Michael Kayras as well. See Docket 36 (incorporating plaintiff’s
response to Trooper Fox’s and the State’s motion to dismiss into plaintiff’s
response to Mr. Kayras’ motion).
With regard to Mr. Kayras, Mr. Engesser sued him because he was Trooper
Fox’s supervisor. See Docket 15 at ¶ 3. “[A] supervisor may be held
individually liable under § 1983 if he directly participates in a constitutional
violation or if a failure to properly supervise and train the offending employee
caused a deprivation of constitutional rights.” Burris v. Quorum Court of
Lincoln Cty., Arkansas, No. 5:07-CV-087, 2008 WL 4820563, at *8 (E.D. Ark.
Nov. 4, 2008) (internal quotation marks omitted) (quoting Andrews v. Fowler, 98
F.3d 1069, 1078 (8th Cir. 1996)).
To demonstrate a supervisor violated a plaintiff’s constitutional rights by
failing to supervise, a plaintiff must show that the supervisor “(1) Received
notice of a pattern of unconstitutional acts committed by subordinates;
(2) Demonstrated deliberate indifference to or tacit authorization of the offensive
acts; (3) Failed to take sufficient remedial action; and (4) That such failure
proximately caused injury [to the plaintiff].” Id. (internal quotation marks
omitted) (quoting Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997)). “The
plaintiff must demonstrate that the supervisor was deliberately indifferent to or
14
tacitly authorized the offending acts. . . . This requires a showing that the
supervisor had notice that the training procedures and supervision were
inadequate and likely to result in a constitutional violation.” Andrews, 98 F.3d
at 1078 (citations omitted). Count four of plaintiff’s amended complaint most
closely alleges a failure to supervise claim against Mr. Kayras. See Docket 15 at
pp. 26-30. The court finds Mr. Engesser stated a plausible claim for § 1983
supervisor liability against Mr. Kayras.
4.
Meade County Defendants
Mr. Engesser clarified he is not suing Ms. Utter, Mr. Swanson or Ms.
Richey in their individual capacities. (Docket 27 at p. 3) (“As [these defendants]
were not sued in their individual capacity, this point is moot.”). The court
agrees. See Johnson, 172 F.3d at 535. The court finds Mr. Engesser did not
sue Ms. Utter, Mr. Swanson or Ms. Richey in their individual capacities—only in
their official capacities. The court need not dismiss Mr. Engesser’s individual
capacity claims against these defendants because no such claims were brought.
Because “[a] suit against a public employee in his or her official capacity is
merely a suit against the public employer,” id., Mr. Engesser’s claims against Ms.
Utter, Mr. Swanson and Ms. Richey are claims against Meade County.
“Plaintiffs who seek to impose liability on local governments under § 1983
must prove that ‘action pursuant to official municipal policy’ caused their
injury.” Connick v. Thompson, 563 U.S. 51, 60-61 (2011) (quoting Monell v.
New York City Dept. of Social Servs., 436 U.S. 658, 691 (1978)). “[I]n other
15
words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Monell, 436 U.S. at 691 (emphasis in original). “Official
municipal policy includes the decisions of a government’s lawmakers, the acts of
its policymaking officials, and practices so persistent and widespread as to
practically have the force of law. . . . These are actions for which the municipality
is actually responsible.” Connick, 563 U.S. at 61 (internal quotation marks,
citations and brackets omitted).
The Connick Court articulated the liability standard for a municipality as
follows:
In limited circumstances, a local government’s decision not to train
certain employees about their legal duty to avoid violating citizens’
rights may rise to the level of an official government policy for
purposes of § 1983. A municipality’s culpability for a deprivation of
rights is at its most tenuous where a claim turns on a failure to
train. See Oklahoma City v. Tuttle, 471 U.S. 808, 822-823 (1985)
(plurality opinion) (“A policy of ‘inadequate training is far more
nebulous, and a good deal further removed from the constitutional
violation, than was the policy in Monell”). To satisfy the statute, a
municipality’s failure to train its employees in a relevant respect
must amount to “deliberate indifference to the rights of persons with
whom the [untrained employees] come into contact.” City of
Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). Only then can
such a shortcoming be properly thought of as a city “policy or
custom” that is actionable under § 1983.
Deliberate indifference is a stringent standard of fault, requiring
proof that a municipal actor disregarded a known or obvious
consequence of his action. . . . A pattern of similar constitutional
violations by untrained employees is ordinarily necessary to
demonstrate deliberate indifference for purposes of failure to train.
Id. at 61-62 (some internal quotation marks, citations and brackets omitted).
16
At issue in Connick was whether a municipality could be held liable based
on a failure to train prosecutors on their duties under Brady v. Maryland, 373
U.S. 83 (1963). The Court reasoned “[f]ailure to train prosecutors in their Brady
obligations does not fall within the narrow range of Canton’s hypothesized
single-incident liability.” Id. at 64; see also id. at 68 (“showing merely that
additional training would have been helpful in making difficult decisions does
not establish municipal liability.”). The court is also cognizant that a plaintiff
need not “specifically plead the existence of an unconstitutional policy or custom
to survive a motion to dismiss.” Crumpley-Patterson v. Trinity Lutheran Hosp.,
388 F.3d 588, 591 (8th Cir. 2004) (citing Doe v. Sch. Dist. of Norfolk, 340 F.3d
605, 614 (8th Cir. 2003)). “When a complaint is filed, a plaintiff may not be
privy to the facts necessary to accurately describe or identify any policies or
customs which may have caused the deprivation of a constitutional right.” Doe
ex rel., 340 F.3d at 614.
The court dismisses all of plaintiff’s § 1983 claims against Meade County,
Ms. Utter, Mr. Swanson and Ms. Richey, except count four, alleging
unconstitutional policies, practices and customs, see Docket 15 at ¶¶ 98-104,
and count two, a § 1983 conspiracy claim. With regard to plaintiff’s Monell
claims in count four, plaintiff articulated multiple plausible § 1983 claims under
which Meade County could be held liable. (Docket 15 at ¶101).
17
C.
Plaintiff’s Federal Claims
1.
Count 1
Mr. Engesser asserts § 1983 claims of malicious prosecution, false arrest,
use of unreliable and fraudulent investigative techniques, procurement of
unreliable and fabricated evidence, and wrongful conviction and imprisonment
against all of the defendants. (Docket 15 at pp. 20-23). Except for references
to case law holding that a violation of Brady gives rise to a procedural due
process claim that is actionable under § 1983, plaintiff’s briefs are devoid of
citations to legal authority establishing that Mr. Engesser’s allegations
constitute constitutional violations.
i.
Malicious Prosecution
Because probable cause existed to believe Mr. Engesser committed an
offense, see infra Part II.D.3, the court grants defendants’ motions to dismiss Mr.
Engesser’s malicious prosecution claims. The United States Court of Appeals
for the Eighth Circuit has not recognized malicious prosecution, without more,
as a cognizable claim under § 1983. See Bates v. Hadden, 576 F. App’x 636,
639 (8th Cir. 2014) (quoting Harrington v. City of Council Bluffs, Iowa, 678 F.3d
676, 680 (8th Cir. 2012)) (“The Supreme Court in [Albright v. Oliver, 510 U.S.
266 (1994)] declined to decide whether defendants have a Fourth Amendment
right against malicious prosecution . . . . Our sister circuits have taken a variety
of approaches on the issue of whether or when malicious prosecution violates the
18
Fourth Amendment. We need not enter this debate now.”) (internal quotation
marks and citations omitted).
ii.
False Arrest
Mr. Engesser agreed to dismiss his false arrest claims. (Docket 25 at
pp. 3-4). The court grants defendants’ motions to dismiss Mr. Engesser’s
§ 1983 claims for false arrest. See infra Part II.D.2.
iii.
Use of Unreliable and Fraudulent Investigative
Techniques and Procurement of Unreliable and
Fabricated Evidence
The court considers plaintiff’s claims for the use of unreliable and
fraudulent investigative techniques and procurement of unreliable and
fabricated evidence together. To the extent Mr. Engesser asserts a § 1983 claim
on these grounds distinct from a procedural due process claim under Brady, the
court finds his claims are based on the due process clause of the Fourteenth
Amendment. See Winslow v. Smith, 696 F.3d 716, 731 (8th Cir. 2012). Mr.
Engesser’s “substantive due process claims are derived from [his] liberty interest
in fair criminal proceedings.” Id. (citing Wilson v. Lawrence Cnty., 260 F.3d
946, 956 n.8 (8th Cir. 2001)).
“To establish a constitutional violation based on an inadequate
investigation, a plaintiff must show that the defendant officer’s ‘failure to
investigate was intentional or reckless, thereby shocking the conscience.’ ” Id.
19
at 732 (quoting Cooper v. Martin, 634 F.3d 477, 481 (8th Cir. 2011)).1 The
Eighth Circuit explained that the following situations indicate a reckless or
intentional failure to investigate that shocks the conscious: “(1) evidence that the
state actor attempted to coerce or threaten the defendant, (2) evidence that
investigators purposefully ignored evidence suggesting the defendant’s
innocence, [or] (3) evidence of systematic pressure to implicate the defendant in
the face of contrary evidence.” Id. (internal quotation marks omitted) (quoting
Akins v. Epperly, 588 F.3d 1178, 1184 (8th Cir. 2009)). “Mere negligent failure
to investigate, such as failing to follow up on additional leads, does not violate
due process.” Id. (citing Amrine v. Brooks, 522 F.3d 823, 833-34 (8th Cir.
2008)).
“[Although] a reckless investigation claim may be supported by proof that
investigators exerted systematic pressure to implicate the defendant in the face
of contrary evidence, . . . a manufactured false evidence claim requires proof that
investigators deliberately fabricated evidence in order to frame a criminal
defendant.” Id. (internal quotation marks and citations omitted). However, the
Eighth Circuit cautions:
Defendants may not be held liable merely for aggressively
investigating the crime, believing witnesses, following leads, and
discounting those pieces of evidence that do not fit with the evidence
at the scene of the crime. In investigating a crime, it is unlikely that
1Although
the issue before the Eighth Circuit in Winslow was whether
defendants were entitled to qualified immunity, the court’s preliminary analysis
regarding whether a constitutional right of the plaintiff was violated is
instructive.
20
every witness’s account will align perfectly with the testimony of
every other witness.
Id. at 734.
Because plaintiff sued Ms. Utter, Mr. Swanson and Ms. Richey in their
official capacities, his suit is against Meade County. Only count four alleges a
plausible claim against a municipality under Monell. Mr. Engesser’s reckless
investigation and manufacture of false evidence claims against the Meade
County defendants are dismissed.
The court finds Mr. Engesser stated plausible substantive due process
§ 1983 claims against Trooper Fox and Mr. Kayras for reckless investigation and
manufacture of false evidence. In reaching this determination, the court
considered the totality of Mr. Engesser’s factual allegations and accepted them
as true. See Docket 15 at ¶¶ 13, 15, 24, 25, 28, 31, 35, 46, 47, 48, 85, 86 99,
100 & 101.
iv.
Wrongful Conviction and Imprisonment
Mr. Engesser’s § 1983 claim for wrongful conviction and imprisonment is
not properly construed as a Monell claim for which Meade County can be held
liable. Reviewing the allegations in plaintiff’s amended complaint and plaintiff’s
separate § 1983 claims for alleged substantive and procedural due process
violations, malicious prosecution and false arrest, the court can find no distinct
§ 1983 cause of action which would embrace Mr. Engesser’s allegations relating
21
to Trooper Fox and Mr. Kayras.2 Cf. Wallace v. Kato, 549 U.S. 384, 390 (2007)
(“If there is a false arrest claim, damages for that claim cover the time of
detention up until issuance of process or arraignment, but not more. From that
point on, any damages recoverable must be based on a malicious prosecution
claim and on the wrongful use of judicial process rather than detention itself.”).
Defendants’ motions to dismiss plaintiff’s § 1983 claim for a wrongful conviction
and imprisonment are granted.
2.
Section 1983 Conspiracy to Violate Constitutional Rights
“To prove a civil conspiracy under § 1983, [a plaintiff] must show (1) two or
more persons; (2) an object to be accomplished; (3) a meeting of the minds on the
object or course of action to be taken; (4) the commission of one or more unlawful
overt acts; and (5) damages as the proximate result of the conspiracy.” Dean v.
Cty. of Gage, Neb., 807 F.3d 931, 939 (8th Cir. 2015), cert. denied sub nom. Gage
Cty., Neb. v. Dean, No. 15-1278, 2016 WL 1545463 (U.S. June 20, 2016)
(internal quotation marks omitted) (quoting Livers v. Schenck, 700 F.3d 340,
360-61 (8th Cir. 2012)). “To be liable as a conspirator [one] must be a voluntary
participant in a common venture. . . . It is enough if [Defendants] understand the
general objectives of the scheme, accept them, and agree, either explicitly or
implicitly, to do [their] part to further them.” Id. (internal quotation marks and
citations omitted). “The plaintiff is additionally required to prove a deprivation
2Plaintiff
abandoned his false arrest claims and only supplied briefing of
an alleged § 1983 claim based on a procedural due process violation under
Brady.
22
of a constitutional right or privilege in order to prevail on a § 1983 civil
conspiracy claim.” White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008)
(citations omitted). “[A] claim of civil conspiracy is not an independent cause of
action, and can only be sustained after an underlying tort claim has been
established.” Holmes v. Slay, No. 4:12CV2333, 2015 WL 1349598, at *7 (E.D.
Mo. Mar. 25, 2015) (citing Hanten v. School Dist. of Riverview Gardens, 183 F.3d
799, 809 (8th Cir. 1999)).
The court has determined Mr. Engesser stated plausible § 1983 claims on
which relief could be granted. See Docket 35 at p. 9 (Meade County argued only
that plaintiff cannot establish the existence of a conspiracy because he cannot
establish a deprivation of a constitutional right). The court denies defendants’
motions to dismiss and finds Mr. Engesser stated a plausible § 1983 conspiracy
claim against Trooper Fox, Mr. Kayras and Meade County.
3.
Section 1983 Claim for Oppression of Exculpatory
Evidence
“In Brady, the Supreme Court held that ‘suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.” Villasana v. Wilhoit, 368 F.3d 976, 978 (8th Cir.
2004) (quoting Brady, 373 U.S. at 87). “Materially favorable evidence includes
both exculpatory and impeachment evidence.” Id. (citing United States v.
Bagley, 473 U.S. 667, 676 (1985)). “To comply with Brady, a prosecutor must
‘learn of any favorable evidence known to the others acting on the government’s
23
behalf in this case, including the police.’ ” Id. (quoting Kyles v. Whitley, 514
U.S. 419, 437 (1995)).
“Brady ensures that the defendant will obtain relief from a conviction
tainted by the State’s nondisclosure of materially favorable evidence, regardless
of fault, but the recovery of § 1983 damages requires proof that a law enforcement
officer other than the prosecutor intended to deprive the defendant of a fair trial.”
Villasana, 368 F.3d at 980 (emphasis added). See also Stewart v. Wagner,
____ F.3d ___, 2016 WL 4728039 (8th Cir. September 12, 2016).
At the outset, the court notes Mr. Engesser did not sue Ms. Utter, Mr.
Swanson or Ms. Richey in their individual capacities (Docket 27 at p. 3), nor
could he with regard to his alleged Brady claim. See Villasana, at 979 (A
prosecutor evaluating whether evidence must be disclosed because it is
materially favorable to the defense has “absolute immunity from Brady damages
claims under § 1983.”) (citing Imbler v. Pachtman, 424 U.S. 409, 431 n.34
(1976)). The State has been dismissed as a defendant under plaintiff’s federal
claims and Meade County can only be liable for § 1983 damages in a Monell
claim, which count three is not. This leaves only Trooper Fox and Mr. Kayras as
defendants to the claim.
The South Dakota Supreme Court, when considering whether the trial
court erred in refusing Mr. Engesser’s requested spoliation instruction regarding
biological evidence found in the Corvette, expressly concluded there was no
indication the evidence was destroyed intentionally or in bad faith. Engesser
24
CR., 661 N.W.2d at 755. The Court further noted Mr. Engesser demonstrated
no prejudice from the lost evidence. Id. at 755-56. The court dismisses
plaintiff’s § 1983 Brady claim against Trooper Fox and Mr. Kayras to the extent it
seeks to impose liability based on the destruction of the Corvette and the
biological evidence contained inside of it.
With regard to the sun visor which Mr. Engesser alleges was removed from
the Corvette and destroyed, and a video of the crash scene that was destroyed,
the court can find no clear indication the South Dakota Supreme Court
considered whether these were destroyed with an intent to deprive Mr. Engesser
of a fair trial. See Docket 15 at ¶¶ 61, 62 & 95. The court finds Mr. Engesser
stated a plausible § 1983 Brady claim with regard to these items of lost evidence
against Trooper Fox and Mr. Kayras.
The court next addresses each of the witnesses who did not testify at Mr.
Engesser’s criminal trial and whose absence he claims violated his procedural
due process right under Brady. These witnesses include: Eric Eckholm,
Charlotte Fowler, Sean Boyle, Phyllis Gillies and Phillip Syverson. See id. at
7-17.
Mr. Engesser asserts “[a]t no time did either Jenniffer Utter or Trooper Fox
ever disclose to the Plaintiff the exculpatory evidence known to them regarding
Sean Boyle.” (Docket 15 at ¶ 53). Plaintiff’s assertions surrounding Mr. Boyle
are contrary to the record and rulings made by the South Dakota Supreme
Court. The Supreme Court noted:
25
Before trial, the defense gave notice of intent to use exculpatory
hearsay. The proffered evidence was the testimony of Engesser’s
civil attorney [Dennis Finch] who was prepared to testify that he had
interviewed Sean Boyle, a security guard at the bar where Finley and
Engesser spent time the evening of the accident. The attorney
would testify that an interview over the phone with Boyle revealed
that Finley had been driving at the time the two left the bar and
further, that Finley rarely, if ever, allowed others to drive her
Corvette.
Engesser CR., 661 N.W.2d at 745 (emphasis added).
Mr. Engesser was aware of Mr. Boyle’s statement, which is why he sought
its admission prior to trial through Mr. Engesser’s civil attorney under the
“catch-all” hearsay exception. Id. at 751. The trial court refused the hearsay
testimony and the South Dakota Supreme Court upheld the ruling. See id. at
751-53. Plaintiff failed to state a plausible claim that a Brady violation
occurred.
Mr. Engesser asserts “[a]t no time did law enforcement officers or the
States Attorney ever divulge exculpatory testimony by Phyllis Gillies to the
Plaintiff.” (Docket 15 at ¶ 60). Mr. Engesser called Ms. Gillies to testify at his
federal habeas hearing. Ms. Gillies testified that, among other things, she “had
known Finley since 1992. . . . She described Finley’s hair style as medium length,
permed, and reddish brown in color with no gray. . . . [and] that Finley loved her
red Corvette and liked to speed.” Engesser 2011, 823 F. Supp. 2d at 923. The
court concluded Ms. Gillies was “not a newly discovered witness . . . because her
testimony could have been discovered through the exercise of due diligence.”
Id. at 924. The South Dakota Supreme Court did not rely on Ms. Gillies’
26
testimony in upholding the circuit court’s grant of Mr. Engesser’s writ of habeas
corpus. See Engesser 2014, 856 N.W.2d at 478. Mr. Engesser failed to
articulate specific facts indicating Trooper Fox or Michael Kayras withheld Ms.
Gillies’ testimony with an intent to deprive him of a fair trial or that they even
knew of her. The record before the court indicates Ms. Gillies had been Ms.
Finley’s friend since 1992 and Mr. Engesser’s various attorneys failed to obtain
her testimony until 2011, approximately ten years after his conviction at trial.
Plaintiff failed to state a plausible claim that a Brady violation occurred.
Mr. Engesser asserts “[a]t no time did Trooper Fox or any law enforcement
officer divulge to the Plaintiff witness [Phillip] Syverson as exculpatory evidence.”
(Docket 15 at ¶ 58). Mr. Syverson was first contacted to appear as a witness
approximately one month before Mr. Engesser’s June 30, 2011, federal habeas
hearing. Engesser 2011, 823 F. Supp. 2d at 923. “[Mr.] Syverson was
discovered as a potential witness after the accident came up in a conversation
with his co-workers [one of which included Mr. Engesser’s cousin Rusty
Engesser].” Engesser 2014, 856 N.W.2d at 475. This conversation occurred
approximately four or five years prior to Mr. Engesser’s habeas hearing in federal
district court. See Engesser 2011, 823 F. Supp. 2d at 923; see also Engesser
2014, 856 N.W.2d at 475-76 (noting Mr. Syverson told his coworkers that he saw
an accident involving a red Corvette a year earlier). Mr. Syverson and his family
left before law enforcement officers arrived on the scene of the crash. Engesser
2014, 856 N.W.2d at 475.
27
There is no indication Trooper Fox or Mr. Kayras acted with an intent to
deprive Mr. Engesser of a fair trial by concealing the existence of Mr. Syverson.
Indeed, there is no indication Trooper Fox or Mr. Kayras knew Mr. Syverson
existed while Mr. Engesser’s criminal prosecution was ongoing. While plaintiff
alleged these defendants performed a reckless investigation, plaintiff failed to
articulate specific facts, beyond legal conclusions, demonstrating a plausible
claim that a Brady violation occurred.
Although Mr. Engesser does not explicitly allege the defendants failed to
disclose the exculpatory evidence later brought forth through Eric Eckholm and
Charlotte Fowler, that is the inference in the amended complaint. See Docket
15 at ¶¶ 23-25, 30-35 & 42-44. The timeline of Mr. Eckholm’s and Ms. Fowler’s
habeas testimony relative to Mr. Engesser’s criminal prosecution is significant in
determining whether Mr. Engesser stated a plausible claim that a Brady violation
occurred. The statements plaintiff relies on in support of these assertions
occurred at Mr. Engesser’s June 30, 2011, federal habeas hearing, which was
the first time either Mr. Eckholm or Ms. Fowler testified in court regarding the
crash. Engesser 2011, 823 F. Supp. 2d at 917.
In Engesser 2014, the South Dakota Supreme Court determined
“[a]lthough Eckholm and Fowler were originally questioned at the scene of the
accident and neither indicated that they could identify the driver, during the
habeas hearing they claimed otherwise.” 856 N.W.2d at 474. With regard to
Ms. Fowler the Court further explained “though she told Trooper Fox on the night
28
of the accident that she was looking at her console and did not see the Corvette
hit the minivan, she in fact saw the accident. She saw a man thrown from the
Corvette.” Id.
At Mr. Engesser’s federal habeas hearing, Mr. Engesser’s trial counsel
testified:
[H]e first knew Eckholm was a potential witness when he received
the first packet of discovery materials from the prosecution. . . .
Neither Rensch nor his investigators spoke to Eckholm before the
trial, even though he was listed as an eyewitness in the discovery
materials. . . . Nor did Rensch or his investigators contact Fowler,
although Rensch was aware of her name throughout the case.
Engesser 2012, 823 F. Supp. 2d at 918; see also id. at 917 (“Eckholm later
contacted Tim Rensch, Engesser’s trial attorney, after he read a newspaper
article about the case. . . . During the phone call, Eckholm told Rensch that a
woman was driving the vehicle.”).3
Mr. Engesser’s trial attorney was aware of Mr. Eckholm and Ms. Fowler
prior to Mr. Engesser’s trial. Mr. Eckholm informed the attorney he thought a
woman was driving the vehicle. Mr. Engesser failed to state a plausible claim
that either Mr. Eckholm’s or Ms. Fowler’s testimony was withheld from him with
the intent to deprive him of a fair trial. Defendants’ motions to dismiss
3Mr.
Engesser asserted an ineffective assistance of counsel claim at the
federal habeas hearing.
29
Mr. Engesser’s § 1983 claims alleging various Brady violations for oppression of
exculpatory eyewitness testimony is granted.4
4.
Section 1983 Claims Alleging a Policy, Practice or Custom
of Unconstitutional Acts
Consistent with the court’s prior rulings, the court finds Mr. Engesser
stated plausible § 1983 claims under Monell against Meade County and a failure
to supervise claim against Mr. Kayras. Plaintiff’s allegations in count four
(Docket 15 at ¶101) are not applicable to Mr. Engesser’s individual capacity
claims against Trooper Fox.
D.
South Dakota State Law Claims
1.
Negligence
Under South Dakota law, “ ‘[i]n order to prevail in a suit based on
negligence, a plaintiff must prove duty, breach of that duty, proximate and
factual causation, and actual injury.’ ” Hendrix v. Schulte, 736 N.W.2d 845,
847 (S.D. 2007) (quoting Fisher Sand & Gravel Co. v. S.D. Dep’t of Transp., 558
N.W.2d 864, 867 (S.D. 1997)). The existence of a duty is usually a question of
law to be determined by the court. Id. (citing Erickson v. Lavielle, 368
N.W.2d 624 (S.D. 1985)). “A duty can be created by either statue or common
4Although
not identified in plaintiff’s amended complaint, the court notes
that the South Dakota Supreme Court recognized “at the time of Engesser’s trial
and first habeas petition, neither counsel could have known that [Greg] Smeenk
was a potential witness.” Engesser 2014, 856 N.W.2d at 475. The Supreme
Court also recognized that “the existence of [Ramona] Dasalla as a witness was
unknown until April 2013.” Id. at 477.
30
law.” Id. (citing Kuehl v. Horner Lumber Co., 678 N.W.2d 809 (S.D. 2004)).
Plaintiff has the burden of proving a duty existed. See Tschetter v. Berven, 621
N.W.2d 372, 378 (S.D. 2001).
The crux of Mr. Engesser’s fifth count relating to Trooper Fox and Mr.
Kayras is that they performed a negligent investigation which ultimately led to
his conviction and imprisonment. (Docket 15 at pp. 30-31). Plaintiff asserts
the State is liable under the doctrine of respondeat superior. Id. at ¶ 106.
Trooper Fox and Mr. Kayras argue under South Dakota’s public duty doctrine
they owed no duty of care to Mr. Engesser in performing their investigation.
(Docket 19 at pp. 11-12). Defendants assert because no duty of care existed,
Mr. Engesser’s negligence claim fails. Id. If Trooper Fox and Mr. Kayras
cannot be found negligent, no respondeat superior liability attaches to the State.
South Dakota’s public duty doctrine “[e]ssentially . . . declares [the]
government owes a duty of protection to the public, not to particular persons or
classes.” Tipton v. Town of Tabor, 567 N.W.2d 351, 356 (S.D. 1997). “[P]olice
officers are generally protected from liability through what is termed the
public-duty rule. The rule provides that the police owe a duty to the public at
large and not to an individual or smaller class of individuals.” Walther v. KPKA
Meadowlands Ltd. P’ship, 581 N.W.2d 527, 531 (S.D. 1998); see also E.P. v.
Riley, 604 N.W.2d 7, 13-14 (S.D. 1999) (The South Dakota Supreme Court
clarified that the public duty doctrine applies to issues involving law
enforcement.). The South Dakota Supreme Court views the public duty
31
doctrine “within the framework of duty—if none exists, then no liability may
affix.” Tipton, 567 N.W.2d at 357. “South Dakota has specifically refused to
abrogate the public duty doctrine.” Riley, 604 N.W.2d at 12 (citing Gleason v.
Peters, 568 N.W.2d 482, 484 (S.D. 1997)).
Plaintiff failed to refute Trooper Fox’s and Mr. Kayras’ assertions they owed
him no duty of care when performing their investigation. See Docket 25 at
pp. 19-20 (Plaintiff argued only that his state law negligence claims were not time
barred.). Plaintiff did not reference or cite any legal authority which would
except the actions of Trooper Fox and Mr. Kayras from South Dakota’s public
duty doctrine. Plaintiff failed to carry his burden of demonstrating Trooper Fox
and Mr. Kayras owed him a duty of care. Without demonstrating the existence
of a duty, Mr. Engesser cannot sustain a negligence claim against these
defendants. Because Trooper Fox and Mr. Kayras cannot be found liable for
negligence, no respondeat superior liability attaches to the State. Defendants’
motions to dismiss are granted.
With regard to the Meade County defendants, plaintiff asserts their
negligent prosecution caused his conviction and ultimate imprisonment.
(Docket 15 at pp. 30-31). Plaintiff claims Meade County is liable under the
doctrine of respondeat superior. Id. at ¶ 106. Plaintiff contends the disclosure
obligations imposed on prosecutors under Brady creates a civil negligence duty
of care under South Dakota law. (Docket 27 at pp. 11-12). Plaintiff did not
identify any legal authority to support this proposition and the court can find
32
none. Plaintiff failed to carry his burden of proving that a duty existed.
Defendants’ motion to dismiss is granted.
2.
False Arrest
Mr. Engesser concedes his claims for false arrest “accrued once [he] faced
official judicial process through grand jury indictment.” (Docket 25 at p. 3).
Mr. Engesser agreed to dismiss all of his false arrest claims. Id. The time
within which Mr. Engesser could bring a § 1983 claim for false arrest expired.
See SDCL § 15-2-15.2. The court dismisses Mr. Engesser’s § 1983 and South
Dakota state law claims for false arrest against all defendants.
3.
Malicious Prosecution
Mr. Engesser made a state law claim of malicious prosecution against all of
the defendants. (Docket 15 at pp. 32-33). The defendants assert Mr. Engesser
cannot state a claim upon which relief can be granted because his arrest was
supported by probable cause. Under South Dakota law, a malicious
prosecution claim consists of six essential elements:
(1) The commencement or continuance of an original criminal or civil
judicial proceeding; (2) its legal causation by the present defendant
against plaintiff, who was defendant in the original proceeding;
(3) its bona fide termination in favor of the present plaintiff; (4) the
absence of probable cause for such proceeding; (5) the presence of
malice therein; (6) damage conforming to legal standards resulting
to plaintiff.
Danielson v. Hess, 807 N.W.2d 113, 115-16 (S.D. 2011) (citations omitted).
“A plaintiff must prove all six elements.” Id. (citing Miessner v. All Dakota Ins.
Assocs., Inc., 515 N.W.2d 198, 200 (S.D. 1994)).
33
Mr. Engesser asserts “[a]t this juncture, the Court must take the
allegations in Plaintiff’s complaint that Trooper Fox lack [sic] probable cause as
true.” (Docket 27 at p. 14); see also Docket 15 at ¶ 80 (“Defendants utilized
information obtained illegally, without probable cause, knowing such
information was inherently unreliable and illegal.”) and ¶ 13(L) (“Taking
aggressive law enforcement actions without first having met the standard of
probable cause.”). These are legal conclusions the court need not accept as
true. See Ashley, 408 F.3d at 1000. Mr. Engesser’s legal conclusions are
contrary to the opinions of the South Dakota Supreme Court and the Eighth
Circuit on the issue―opinions that Mr. Engesser incorporates into his complaint.
(Docket 15 at pp. 17-20).
“Probable cause exists when the available facts and circumstances are
sufficient to warrant a person of reasonable caution to believe that an offense
was being or had been committed.” Engesser 2006, 457 F.3d at 740 (internal
quotation marks and citations omitted) (emphasis added). The South Dakota
Supreme Court and the Eighth Circuit determined probable cause existed to
believe Mr. Engesser committed an offense. The South Dakota Supreme Court
opined “Engesser has shown no error in the trial court’s determination that the
objective circumstances amounted to probable cause to believe that a crime may
have been committed and that the blood test would uncover relevant evidence of
the crime.” Engesser CR., 661 N.W.2d at 747. The Court “conclude[d] that
there was probable cause to arrest Engesser. The determinative question [is]
34
. . . whether the trooper had probable cause to arrest the defendant. He did and
therefore this search was reasonable.” Id. at 748.
The Eighth Circuit agreed, noting that these “facts alone are sufficient
such that an officer of reasonable caution would believe Engesser had committed
an offense. Furthermore, Trooper Fox’s subjective beliefs about who he thought
was driving are not relevant to a probable cause inquiry.” Engesser 2006, 457
F.3d at 740. The Eighth Circuit identified the following facts as creating
probable cause in Mr. Engesser’s underlying criminal case:
(1) Engesser was found lying approximately six to ten feet from the
Corvette’s driver’s side door, (2) emergency responders had to use
the Jaws of Life to extricate Finley because they could not open the
Corvette’s severely damaged passenger side door, (3) Finley was
pronounced dead at the scene, (4) Trooper Fox detected a strong
odor of alcohol emanating from Engesser, (5) the Corvette had been
traveling at a high rate of speed when the collision occurred, and
(6) exigent circumstances existed to preserve any BAC test evidence.
Id. (citing Engesser CR., 661 N.W.2d at 748); see also Engesser 2014, 856
N.W.2d 471, 473 (At the time Trooper Fox obtained statements from the
witnesses at the scene “[n]o witness . . . stated specifically whether the driver was
a man or woman.”).
The facts cited by the South Dakota Supreme Court and the Eighth Circuit
providing probable cause to believe Mr. Engesser committed an offense remain
valid. Much of the newly discovered eyewitness testimony supporting Mr.
Engesser’s successful habeas petition in 2014 was unknown following the crash
and during the pendency of his criminal case. See supra Part II.C.3. The facts
35
which were known at the time of the accident, when viewed objectively, establish
probable cause to believe Mr. Engesser committed an offense.5
To the extent plaintiff attempts to raise a claim of malicious prosecution for
the state’s opposition to his multiple petitions for habeas corpus relief following
his criminal conviction, the argument misses the mark. The court must assess
whether probable cause existed at the time of the accident and the state’s
investigation and during the prosecution of Mr. Engesser. Exculpatory
eyewitness testimony discovered years and after his conviction does not
invalidate the probable cause determination made at the time of the
investigation. The court recognizes that during the years while Mr. Engesser’s
habeas petitions and appeals were pending and the new eyewitness testimony
was discovered, he had already been convicted in an error-free trial and did not
enjoy the constitutional safeguards associated with the presumption of
innocence. See Engesser 2014, 856 N.W.2d at 483 (citing Herrera v. Collins,
506 U.S. 390, 399 (1993))
Mr. Engesser cannot prove all six essential elements of a malicious
prosecution claim under South Dakota law. Defendants’ motion to dismiss is
granted. Having determined probable cause existed to believe Mr. Engesser
committed an offense, his § 1983 claim alleging a malicious prosecution also fails
5Mr.
Engesser admitted in his amended complaint that his case was
brought before a grand jury. (Docket 15 at ¶ 36). A prerequisite to the
commencement of his criminal trial was the grand jury finding probable cause to
believe he committed the charged offenses.
36
and is dismissed against all defendants. See Joseph v. Allen, 712 F.3d 1222,
1228 (8th Cir. 2013).
Because the court dismissed plaintiff’s pendant state law claims, it need
not address defendants’ arguments that Mr. Engesser’s state law claims must be
dismissed based on his failure to comply with South Dakota’s notice requirement
under SDCL § 3-21-2.
III.
Punitive Damages
Plaintiff seeks punitive damages against Meade County. (Docket 15 at
¶ 121). The court denies Mr. Engesser’s request for punitive damages for his
§ 1983 claims against Meade County. See City of Newport v. Fact Concerts,
Inc., 453 U.S. 247, 271 (1981) (holding that “a municipality is immune from
punitive damages under 42 U.S.C. § 1983.”). Because Mr. Engesser waived his
false arrest claims and the court dismissed his remaining state law claims, the
court need not determine whether Meade County may be held liable for punitive
damages on plaintiff’s pendant state law claims.
IV.
Qualified Immunity
The court finds that an adjudication of whether any of the defendants are
entitled to qualified immunity is premature at this juncture.
CONCLUSION
Mr. Engesser’s surviving claims are as follows:
1.
A substantive due process § 1983 claim against Trooper Fox and
Mr. Kayras for reckless investigation and manufactured evidence.
37
2. A procedural due process § 1983 claim under Brady v. Maryland
against Trooper Fox and Mr. Kayras for destroying the Corvette’s
sun visor, including any evidence contained on it, and for destroying
a video of the scene of the crash.
3. A § 1983 Monell claims against Meade County for unconstitutional
policies and practices.
4. A § 1983 claim for failure to supervise against Mr. Kayras.
5. A § 1983 conspiracy claim against Trooper Fox, Mr. Kayras and
Meade County.
The court dismisses the remainder of Mr. Engesser’s federal claims. The
court dismisses all of Mr. Engesser’s pendant state law claims. To the extent
the Meade County defendants move to strike portions of plaintiff’s complaint
(Docket 20), the motion is denied.
ORDER
Based on the above analysis, it is
ORDERED that the motion to dismiss by Trooper Edward Fox and the
State of South Dakota (Docket 18) is granted in part and denied in part
consistent with the court’s analysis.
IT IS FURTHER ORDERED that the joint motion to dismiss and motion to
strike by defendants Jennifer Utter, Gordon Swanson, Amber Richey and Meade
County (Docket 20) is granted in part and denied in part consistent with the
court’s analysis.
38
IT IS FURTHER ORDERED that defendant Michael Kayras’ motion to
dismiss (Docket 29) is granted in part and denied in part consistent with the
court’s analysis.
IT IS FURTHER ORDERED that defendants shall file an answer
responding to plaintiff’s surviving claims and related allegations in the amended
complaint by October 17, 2016.
Dated September 26, 2016.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
39
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