Kurtenbach v. Jackley et al
Filing
39
ORDER granting in part and denying in part 23 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Jeffrey L. Viken on 3/29/18. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
MATTHEW C. KURTENBACH, a/k/a
MATTHEW KURTENBACH,
CIV. 16-5021-JLV
ORDER
Plaintiff,
vs.
SOUTH DAKOTA ATTORNEY
GENERAL MARTIN JACKLEY, SOUTH
DAKOTA SECRETARY OF
CORRECTIONS DENNY KAEMINGK,
LINDSAY QUASNEY, JOHN WENANDE
and DOUG CLARK,
Defendants.
INTRODUCTION
Plaintiff Matthew Kurtenbach sues the above-captioned defendants
alleging various claims under 42 U.S.C. § 1983. (Docket 15). The defendants
filed a motion to dismiss the amended complaint pursuant to Fed. R. Civ. P.
12(b)(6). (Docket 23). Plaintiff resists in part and agrees in part to defendants’
motion. (Docket 31). For the reasons stated below, defendants’ motion to
dismiss is granted in part and denied in part.
ANALYSIS
Plaintiff’s amended complaint contains seven claims against the
defendants. Those claims are:
Count 1:
Using phony “subpoenas” to subvert constitutional
protections. (Docket 15 at p. 3) (capitalization, bold
and parentheses omitted);
Count 2:
Unfettered state surveillance of individuals’ pharmacy
records. Id. at p. 6 (capitalization, bold and
parentheses omitted);
Count 3:
Increasing criminal sentences on the basis of facts
neither admitted nor found by a jury. Id. at
p. 8 (capitalization, bold and parentheses omitted);
Count 4:
Jailing of parolees without a proper basis. Id. at
p. 10 (capitalization, bold and parentheses omitted);
Count 5:
Unauthorized revocation of parole. Id. at p. 13
(capitalization, bold and parentheses omitted);
Count 6:
Delayed and denied preliminary revocation hearing.
Id. at p. 15 (capitalization, bold and parentheses
omitted); and
Count 7:
Retaliation for seeking a parole board meeting. Id. at
p. 17 (capitalization, bold and parentheses omitted).
Defendants’ motion to dismiss the entirety of the amended complaint is
premised on Fed. R. Civ. P. 12(b)(6). (Docket 23). In the alternative,
defendants ask the court to dismiss the official capacity claims against Attorney
General Martin Jackley (“Attorney General Jackley”) and South Dakota Secretary
of Corrections Denny Kaemingk (“Secretary Kaemingk”) and the individual,
personal capacity claims against defendants Ms. Quasney, Mr. Wenande and Mr.
Clark. Id.
In response to defendants’ motion to dismiss, Mr. Kurtenbach does not
object to the dismissal of count 3. (Docket 31 at p. 31). Defendants’ motion to
dismiss count 3 will be granted.
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Mr. Kurtenbach acknowledges count 5 is barred by the Heck1 doctrine,
but asks the court to abstain from ruling on this cause of action until the
underlying state court habeas proceeding is resolved. Id. at p. 35. The court
will address count 5 as part of its analysis of defendants’ motion to dismiss.
Rule 12(b)(6) provides for dismissal if the plaintiff fails to state a claim
upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In evaluating the
defendants’ Rule 12(b)(6) motion, the court accepts as true all of the factual
allegations contained in plaintiff’s complaint and grants all reasonable
inferences in favor of plaintiff as the nonmoving party. Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (“a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ”) (citing Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). See
also Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009) (the court must review “a
Rule 12(b)(6) motion to dismiss for failure to state a claim, accepting the facts
alleged in the complaint as true and granting all reasonable inferences in favor of
the plaintiff, the nonmoving party.”) (brackets omitted). “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 ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do[.]” Bell Atlantic Corp. v. Twombly,
1
Heck v. Humphrey, 512 U.S. 477 (1994).
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550 U.S. 544, 555 (2007) (citations omitted). “[O]nly a complaint that states a
plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679.
“When ruling on a motion to dismiss under Rules 12(b)(6) . . . a district
court generally may not consider materials outside the pleadings. . . . . It may,
however, consider some public records, materials that do not contradict the
complaint, or materials that are necessarily embraced by the pleadings.” Noble
Systems Corp. v. Alorica Central, LLC, 543 F.3d 978, 982 (8th Cir. 2008)
(internal citation and quotation marks omitted). The court may also consider
matters in the public record of which the court may take judicial notice.
Tellabs, Inc. v. Makor Issues and Rights, LTD., 551 U.S. 308, 322 (2007).
“Jurisdictional issues, whether they involve questions of law or of fact, are for the
court to decide.” Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990).
The Civil Rights Act provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory
decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983. “Section 1983 does not confer subject matter jurisdiction.
The statute simply provides a means through which a claimant may seek a
remedy in federal court for a constitutional tort when one is aggrieved by the act
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of a person acting under color of state law.” Jones v. United States, 16 F.3d
979, 981 (8th Cir. 1994).
“The district court [is] required to evaluate [each defendant’s] conduct
individually. . . . Liability for damages for a federal constitutional tort is personal,
so each defendant’s conduct must be independently assessed. . . . Section
1983 does not sanction tort by association.” Heartland Academy Community
Church v. Waddle, 595 F.3d 798, 805-06 (8th Cir. 2010) (internal citations
omitted).
Mr. Kurtenbach asserts claims against Attorney General Jackley in his
official capacity seeking declaratory and injunctive relief. (Docket 15 ¶ 33(b)
[count 1]; ¶ 47(b) [count 2]; ¶ 72(b) [count 4]; ¶ 85(b) [count 5]; ¶ 93(b) [count 6];
and ¶ 103(b) [count 7]). Mr. Kurtenbach makes no personal capacity claims
against Attorney General Jackley.
The amended complaint asserts claims against Secretary Kaemingk in his
official capacity seeking declaratory and injunctive relief. (Docket 15 ¶ 47(b)
[count 2]; ¶ 72(b) [count 4]; ¶ 85(b) [count 5]; ¶ 93(b) [count 6]; and ¶ 103(b)
[count 7]). Mr. Kurtenbach makes no personal capacity claims against
Secretary Kaemingk.
Mr. Kurtenbach asserts one claim against Assistant Attorney General
Lindsey Qausney (“AAG Quasney”) in both her official and personal capacities
seeking money damages and injunctive relief. (Docket 15 ¶ 33(a) [count 1]).
Plaintiff asserts two claims against South Dakota Division of Criminal
5
Investigation Agent Wenande (“Agent Wenande”) in both his official and personal
capacities seeking money damages and injunctive relief. (Docket 15 ¶ 47(a)
[count 2]; and ¶ 72(a) [count 4]).
The amended complaint asserts three claims against South Dakota Board
of Pardons and Paroles Director Clark (“Director Clark”), in both his official and
personal capacities, seeking money damages and injunctive relief. (Docket
15 ¶ 85(a) [count 5]; ¶ 93(a) [count 6] and ¶ 103(a) [count 7]).
OFFICIAL CAPACITY CLAIMS
Before addressing plaintiff’s claims against the defendants in their
individual capacities, the court addresses Mr. Kurtenbach’s claims against the
defendants in their official capacities. “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. Department of
State Police, 491 U.S. 58, 66 (1989)). “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)). “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. Board of Regents of the University System of Georgia, 535 U.S. 613,
6
617 (2002)). Finally, “respondeat superior or vicarious liability will not attach
under § 1983.” Rutan v. State of South 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)).
Declaratory and prospective injunctive relief are available as remedies
against a state officer in his official capacity. Pulliam v. Allen, 466 U.S. 522,
541 (1984). Immunities, i.e., absolute, prosecutorial or qualified immunity are
not a bar “to plaintiff’s action for injunctive and declaratory relief under Section
1983.” Timmerman v. Brown, 528 F.2d 811, 814 (4th Cir. 1975).
In so far as Mr. Kurtenbach alleges defendants, AAG Quasney, Agent
Wenande and Director Clark, violated his constitutional rights in their official
capacities, the court finds the § 1983 claims for money damages are actually
claims against the State of South Dakota. Johnson, 172 F.3d at 535.
Accordingly, Mr. Kurtenbach’s 1983 claims for money damages against the
defendants in their official capacities are dismissed.
The court will now address each of plaintiff’s remaining claims.
COUNT 1: USING PHONY “SUBPOENAS” TO SUBVERT
CONSTITUTIONAL PROTECTIONS
For purposes of resolution of defendants’ Rule 12(b)(6) motion, the court
accepts as true the factual allegations contained in the amended complaint and
all reasonable inferences in favor of plaintiff. Braden, 588 F.3d at 594. In
December 2013, Mr. Kurtenbach was on parole through the South Dakota
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Department of Corrections. (Docket 15 ¶ 14). Mr. Kurtenbach signed a
Community Supervision Agreement. Id.; see also Docket 25-1 pp. 2-3. In early
January 2014, Nathan Hower, Mr. Kurtenbach’s parole officer, suspected he was
attempting to obtain prescription narcotics illegally. (Dockets 15 ¶ 17 & 15-2 at
p. 2). Parole Officer Hower’s suspicion was based on the fact Mr. Kurtenbach
visited the emergency room at the Rapid City Regional Hospital in Rapid City,
South Dakota, twice on December 17, 2013. (Docket 15-2 at p. 2). Parole
Officer Hower communicated his suspicions to Agent Wenande, who opened an
investigation. (Docket 15 ¶ 18).
As part of the investigation, on January 3, 2014, AAG Quasney issued
three subpoenas duces tecum (“subpoenas”) to healthcare providers to obtain Mr.
Kurtenbach’s medical records. Id. ¶ 21; see also Docket 15-1 at pp. 2-4. The
subpoenas were captioned “In the Matter of the Grand Jury Investigation into
Criminal Activity” and were issued to Wal-Mart Pharmacy Store #10-3872 and
two subpoenas were issued to Rapid City Regional Health. (Docket 15-1 at
pp. 2-4) (capitalization omitted). One of the subpoenas was issued on the
authority of a Meade County grand jury and the other two on the authority of a
Pennington County grand jury. Id. All three subpoenas commanded the
providers to appear at the Pennington County Courthouse and present the
documents subpoenaed. Id. The subpoenas allowed each provider to deliver
Mr. Kurtenbach’s medical records to Agent Wenande at a telefax number or
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mailing address provided. Id. Each of the three providers provided Agent
Wenande with Mr. Kurtenbach’s medical records. (Docket 15-2 at p. 3).
A Pennington County, South Dakota, grand jury indicted Mr. Kurtenbach
with count 1: attempt to obtain possession of a controlled substance by theft,
misrepresentation, forgery or fraud; count 2: attempt to obtain possession of a
controlled substance by theft, misrepresentation, forgery or fraud; count 3:
attempted possession of a controlled substance with the intent to distribute; and
count 4: attempted possession of a controlled substance with the intent to
distribute. (Docket 25-2 at pp. 2-5). The indictment was filed in Seventh
Judicial Circuit Court, Pennington County, South Dakota, as Crim. No. 14-405.
Id. at p. 2.
In criminal case, Crim. No. 14-405, Mr. Kurtenbach filed a motion for
sanctions seeking to prohibit the state at trial from using any of the information
obtained through the three subpoenas. (Docket 15-2 at p. 2). In a
memorandum opinion, on July 28, 2014, Seventh Circuit Judge Wally Eklund
ruled “[a]ll three subpoenas were issued before a grand jury convened to consider
evidence in the Defendant’s case.” Id. at p. 5. The state trial judge concluded
Mr. Kurtenbach had “a reasonable expectation of privacy in his medical and
prescription records and therefore a protectable Fourth Amendment interest.
The State’s use of the three unsupervised investigative subpoenas duces tecum
was beyond the scope of SDCL §§ 23A-14-1 and 23A-14-5.” Id. at p. 6. The
trial court found “[t]he use of these unsupervised investigative subpoenas is
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widespread. . . . [T]he State admits that based on a brief survey, the State’s
Attorney’s offices in Custer, Gregory, Lawrence, Meade, and Union Counties
routinely issue subpoenas to obtain medical records in criminal cases.” Id.
(internal reference and quotation marks omitted). As a remedy for the violation
of Mr. Kurtenbach’s Fourth Amendment rights, the trial court ruled: “[i]n light of
the widespread use, the Court has determined that prohibiting the State from
admitting into evidence, at the time of trial, the medical and pharmacy records as
well as any evidence stemming from the collection of those records is an
appropriate sanction in this case to deter future Fourth Amendment violations.”
Id. Findings of facts and conclusions of law and an order were entered
consistent with the memorandum opinion. Id. at pp. 7-14 and Docket 25-4 at
p. 2).
The amended complaint alleges AAG Quasney and the State violated Mr.
Kurtenbach’s constitutional right of privacy. (Docket 15 ¶ 29). Mr.
Kurtenbach alleges “[u]pon information and belief, the State has made a practice
of using invalid subpoenas for this purpose, and continues that practice.” Id.
¶ 30. He further alleges “[o]n information and belief, the Attorney General has
failed to properly train and supervise his subordinates. . . . [T]he sort of violations
described here have occurred frequently enough that the Attorney General knew
or should have known they were happening, and that they were improper.” Id.
¶ 32.
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Mr. Kurtenbach seeks relief in the form of money damages against AAG
Qausney in her individual capacity and an injunction against her in her official
capacity. Id. ¶ 33(a). He also seeks declaratory and injunctive relief against
Attorney General Jackley in his official capacity. Id. ¶ 33(b).
AAG Qausney moves to dismiss count 1 on the basis of prosecutorial
immunity. (Docket 24 at p. 5). She argues her conduct which is the subject of
count 1 was “clearly directed at her while functioning as a prosecuting attorney
on behalf of the State.” Id. at p. 15. As a prosecuting attorney, AAG Qausney
argues “she is entitled to absolute immunity.” Id.
In the alternative, AAG Qausney argues that if “not entitled to absolute
immunity, she is entitled to qualified immunity.” Id. at p. 16 (referencing Malley
v. Briggs, 475 U.S. 335, 341 (1986) and Saucier v. Katz, 533 U.S. 194, 201
(2001)). First, she contends her conduct did not violate Mr. Kurtenbach’s
constitutional rights. Id. at p. 17. Second, she asserts “there is no Eighth
Circuit or U.S. Supreme Court precedent” which declares similar conduct as
violative of the Fourth Amendment such that a “reasonable official would
understand that such particular conduct violates the Fourth Amendment.” Id.
at p. 17 (referencing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Mr. Kurtenbach counters AAG Qausney is not entitled to absolute
immunity because there was no criminal prosecution pending at the time she
issued the three subpoenas. (Docket 31 at p. 12). He argues the state trial
court ruled AAG Qausney’s use of the three “subpoenas violated both state law
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and the federal Constitution.”2 Id. at p. 13 (referencing Docket 15-2 at p. 6).
Based on that ruling, Mr. Kurtenbach asserts “issue preclusion” prevents AAG
Qausney from “relitgation of that issue in a § 1983 action.” Id. at p. 14 (citing
Simmons v O’Brien, 77 F.3d 1093, 1096 (8th Cir. 1996); Nance v Humane
Society, No. 15-3512, 2016 WL 4136972, at *1 (8th Cir. Aug 4, 2016)).
In rebuttal, AAG Qausney argues Mr. Kurtenbach is barred from asserting
a Fourth Amendment claim because of his plea agreement in a separate criminal
case, Crim. No. 14-725. (Docket 38 at p. 2) (referencing Docket 25-5). In
exchange for Mr. Kurtenbach’s guilty plea in Crim. No. 14-475, AAG Qausney
argues Crim. No. 14-405 was dismissed with prejudice and the issue of the three
subpoenas was resolved, because “the State would not appeal Judge Eklund’s
decision [in Crim. No. 14-405].” Id. at p. 3. Because of the plea agreement,
AAG Qausney contends Mr. Kurtenbach lacks standing to assert a violation of
the Fourth Amendment as he did not suffer “an injury in fact.” Id. at p. 4
(referencing Valley Forge Christian Coll. v. Ams. United for Separation of Church
& State, Inc., 454 U.S. 464, 472 (1982)).
As a final defense to count 1, AAG Qausney asserts the doctrine of issue
preclusion is not applicable because there was not “a full and reasonable
opportunity to litigate” the state trial judge’s ruling. (Docket 38 at pp. 5-6).
“Section 1983 imposes liability for violations of rights protected by the
Constitution, not for violations of duties of care arising out of [state] law.” Baker
v. McCollan, 443 U.S. 137, 146 (1979). For that reason, the court will only
address Mr. Kurtenbach’s claims under the United States Constitution.
2
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She argues that the trial judge’s “decision was not a final judgment. His
decision was interlocutory in nature.” Id. at p. 7.
GUILTY PLEA
As a general rule, a plea of guilty in a state court criminal proceeding is not
construed as a waiver of a defendant’s Fourth Amendment claims under § 1983
in federal court. Haring v. Prosise, 462 U.S. 306, 323 (1983). “When a court
accepts a defendant’s guilty plea, there is no adjudication whatsoever of any
issues that may subsequently be the basis of a § 1983 claim.” Id. at 322 n.11.
A contrary “rule would require an otherwise unwilling party to try Fourth
Amendment questions to the hilt and prevail in state court in order to preserve
the mere possibility of later bringing a § 1983 claim in federal court.” Id. at 322
(internal citation, quotation marks and brackets omitted).
On the other hand, “[t]he plea bargaining process necessarily exerts
pressure on defendants to plead guilty and to abandon a series of fundamental
rights, but we have repeatedly held that the government may encourage a guilty
plea by offering substantial benefits in return for the plea.” United States v.
Mezzanatto, 513 U.S. 196, 209-10 (1995) (internal citation and quotation marks
omitted). “[A]bsent some affirmative indication that the agreement was entered
into unknowingly or involuntarily, an agreement to waive the exclusionary
provisions of [a constitutional right] is valid and enforceable.” Id. at 210.
During the change of plea hearing in Crim. No. 14-475, Judge Eklund
engaged Mr. Kurtenbach in a colloquy regarding his constitutional rights prior to
13
accepting the guilty plea. (Docket 25-5 at pp. 4:18-5:17). Mr. Kurtenbach
agreed to waive his constitutional rights in Crim. No. 14-475 as part of the plea.
Id. The decision to change his plea was “made after thoughtful reflection and a
decision that [he] made of [his] own free will and accord.” Id. at p. 7:19. The
only part of the plea agreement relevant to the present case was that “the
Attorney General’s Office would not pursue an appeal in File 14-405.”3 Id. at
p. 3:15-16.
In Crim. No. 14-475 there was neither a discussion nor a waiver by Mr.
Kurtenbach of his right to assert any violation of his constitutional rights in
Crim. No. 14-405 through a subsequent state or federal civil action. The court
finds that Mr. Kurtenbach’s plea agreement did not prohibit him from asserting a
§ 1983 claim for the violation of his constitutional rights under the Fourth
Amendment.
The defendants’ reply brief asserts Heck bars Mr. Kurtenbach’s claims
against AAG Qausney and Attorney General Jackley because “a state prisoner
cannot use a § 1983 action to challenge his confinement.” (Docket 38 at p. 3)
(referencing Skinner v. Switzer, 562 U.S. 521, 533 (2011) (quoting Heck,
512 U.S. at 487). “The gist of [Heck, 512 U.S. 477] is that section 1983 is not an
appropriate vehicle for attacking the validity of a state conviction.” Wilson v.
The only issue disclosed to this court was the state’s appeal in Crim. No.
14-405 from the trial court’s order “suppressing the . . . medical records,
pharmacy records, and any evidence stemming from the collection of those
record,” obtained through the three subpoenas. See Docket 38 at p. 2 n.2.
3
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Lawrence County, Missouri, 154 F.3d 757, 761 (8th Cir. 1998). Mr. Kurtenbach
is not asking the court to overturn his conviction in Crim. No. 14-475, but rather
he is asking this court to compensate him for a violation of his Fourth
Amendment rights in Crim. No. 14-405. (Docket 15). Heck does not constitute
a bar to plaintiff’s claims.
ISSUE PRECLUSION
“State courts unquestionably have power to render preclusive judgments
regarding the Fourth Amendment’s prohibition of unreasonable searches and
seizures.” Linnen v. Armainis, 991 F.2d 1102, 1108 (3d Cir. 1993) (referencing
Allen v. McCurry, 449 U.S. 90, 95 (1980); Stone v. Powell, 428 U.S. 465,
494-95 (1976)). In Crim. No. 14-405, the trial court completed a thorough
analysis of Mr. Kurtenbach’s Fourth Amendment right to privacy and the
violation which occurred. (Docket 15-2 at pp. 3-14). The question is whether
collateral estoppel prevents AAG Qausney, or Attorney General Jackley for that
matter, from challenging the trial court’s decision.
In Haring, the court held that the federal full faith and credit statute,
28 U.S.C. § 1738, “generally requires federal courts to give [the same] preclusive
effect to state-court judgments whenever the courts of the State from which the
judgment emerged would do so.” Haring, 462 U.S. at 314 (internal citation and
quotation marks omitted). “Accordingly, if state rules of collateral estoppel
would bar relitigation of fourth amendment claims in a postconviction civil
action, the federal court must give the state conviction the same effect.”
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Sanders v. Frisby, 736 F.2d 1230, 1231 (8th Cir. 1984) (referencing Haring, 462
U.S. 306; other references omitted).
“The collateral estoppel doctrine ‘bar[s] relitigation of an essential fact or
issue involved in the earlier suit’ if a four-part test is satisfied: ‘(1) Was the issue
decided in the prior adjudication identical with the one presented in the action in
question? (2) Was there a final judgment on the merits? (3) Was the party against
whom the plea is asserted a party or in privity with a party to the prior
adjudication? (4) Did the party against whom the plea is asserted have a full and
fair opportunity to litigate the issue in the prior adjudication?’ ” Zebrowski v.
Am. Standard Ins. Co. of Wisconsin, No. CV 16-5018, 2017 WL 4220452, at *3
(D.S.D. Sept. 21, 2017) (citing Hamilton v. Sommers, 855 N.W.2d 855, 866 (S.D.
2014) (quoting Estes v. Millea, 464 N.W.2d 616, 618 (S.D. 1990)).
Applying this test, the court finds: (1) the issue decided in Crim. No.
14-405 is precisely the issue presented in this litigation; (2) there was a final
judgment on the merits as the state trial court’s decision was not appealed to the
South Dakota Supreme Court; (3) AAG Qausney was in privity with the State of
South Dakota in Crim. No. 14-405, and another Assistant Attorney General,
Laura Shattuck, advocated the State’s position before the state trial court;4 and
(4) there was a full and fair opportunity to litigate the constitutionality of the
three subpoenas in Crim. No. 14-405. Zebrowski, supra. The court finds the
decision of the state trial court was a well-reasoned analysis of the Fourth
4
See Docket 15-2 at pp. 2-6.
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Amendment, Mr. Kurtenbach’s right of privacy, the invalidity of the three
subpoenas and the constitutional violation which occurred. The decision of the
state court is binding on AAG Qausney and Attorney General Jackley in this
case.
ABSOLUTE IMMUNITY
The United States Court of Appeals for the Eighth Circuit outlined the
parameters for prosecutorial absolute immunity.
Prosecutors are entitled to absolute immunity from civil liability
under § 1983 when they are engaged in prosecutorial functions that
are intimately associated with the judicial process. Actions
connected with initiation of prosecution, even if those actions are
patently improper are immunized. However, purely administrative
or investigative actions that do not relate to the initiation of a
prosecution do not qualify for absolute immunity. The question of
whether absolute or qualified immunity applies depends on whether
the prosecutor’s acts were prosecutorial, investigatory or
administrative in nature.
Schenk v. Chavis, 461 F.3d 1043, 1046 (8th Cir. 2006) (internal citations,
quotation marks, and alteration marks omitted). “[T]he official seeking absolute
immunity bears the burden of showing that such immunity is justified for the
function in question.” Burns v. Reed, 500 U.S. 478, 486 (1991).
In this case, the state court’s analysis made it clear AAG Qausney was
engaged in an investigative function when she issued the unconstitutional
subpoenas.
The State argues [SDCL § 23A-14-2] gives prosecutors the power to
issue subpoenas . . . because it was issued in support of a
prosecution. While the documents state that they are “In the
Matter of the Grand Jury Investigation into Criminal Activity within
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Pennington County,” they give no specific title of the action,
proceeding, or prosecution that it is being issued in support of. . . .
SDCL § 23A-14-5 does not contain language that suggests that a
subpoena duces tecum can be issued before a prosecution begins.
Rather, the language of § SDCL 23A-14-5 that allows for pretrial
production of documents under the supervision of the court and
upon terms which allow inspection of the documents by the parties
suggests that subpoenas duces tecum are not intended to be
secretive and they are not intended to go unsupervised by the court.
. . . The State’s use of the three unsupervised investigative
subpoenas duces tecum was beyond the scope of SDCL §§ 23A-14-2
and 23A-14-5.
Docket 15-2 at pp. 5-6 (italics in original). Absolute immunity does not shield
AAG Qausney in this case. Schenk, 461 F.3d at 1046.
QUALIFIED IMMUNITY
Qualified immunity is synonymous with good faith immunity in the
context of public employees. Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).
See also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 976 (8th Cir. 1993).
“Qualified immunity protects government officials from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Sisney
v. Reisch, 674 F.3d 839, 844 (8th Cir. 2012) (internal citations and quotation
marks omitted). “[Q]ualified immunity . . . is both a defense to liability and an
entitlement not to stand trial or to face the other burdens of litigation.”
Kendrick v. Pope, 671 F.3d 686, 689 (8th Cir. 2012). See also Angarita v. St.
Louis County, 981 F.2d 1537, 1548 (8th Cir. 1992) (“The doctrine of qualified
immunity aims to keep public officials out of the court.”).
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“To determine whether the defendants are entitled to qualified immunity,
[the court must] ask two questions: (1) whether the facts, viewed in the light most
favorable to the plaintiff, demonstrate the deprivation of a constitutional or
statutory right; and (2) whether the right was clearly established at the time of
the deprivation.” Ehlers v. City of Rapid City, 846 F.3d 1002, 1008 (8th Cir.
2017) (internal citations and quotation marks omitted). “The court may
consider these steps in any order . . . but unless the answer to both of these
questions is yes, the defendants are entitled to qualified immunity.” Id.
(internal citations, quotation marks and brackets omitted). “In order to be
clearly established, the contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.”
Id. (internal citation, quotation marks and brackets omitted). “While prior cases
need not have expressly determined that the action in question is unlawful, in
the light of pre-existing law the unlawfulness must be apparent. . . . Reciting an
abstract right at a high level of generality will not suffice.” Id. (internal citation
and quotation marks omitted).
“When an official . . . timely files a motion for dismissal . . . asserting
qualified immunity, the official is entitled to a ruling on the issue of qualified
immunity.” Payne v. Britten, 749 F.3d 697, 699 (8th Cir. 2014). “The
defendants . . . like any public officials, are entitled to a reasoned denial or grant
of their claim of qualified immunity at the motion to dismiss stage, the summary
judgment stage, and any other permissible stage at which a proper motion is
19
filed.” Id. at 702. In resolving a motion to dismiss, the court must consider the
factual allegations of the complaint and any other factual declarations as true for
qualified immunity analysis purposes. Hager v. Arkansas Department of
Health, 735 F.3d 1009, 1013 (8th Cir. 2013) (“Under Federal Rule of Civil
Procedure 12(b)(6), the factual allegations in the complaint are accepted as true
and viewed most favorably to the plaintiff. . . . Courts must not presume the
truth of legal conclusions couched as factual allegations.) (internal citation
omitted). See also Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005)
(“To prevail at this stage of the proceedings [Rule 12(b)(6) motion to dismiss],
defendants must show that they are entitled to qualified immunity on the face of
the complaint. . . . The exhibits . . . attached to [the] complaint are part of the
complaint for this purpose.”) (internal citation omitted).
Considering the first factor in the qualified immunity analysis, the court
must determine “whether the facts, viewed in the light most favorable to the
plaintiff, demonstrate the deprivation of a constitutional or statutory right.”
Ehlers, 846 F.3d at 1008. “It is indeed clear beyond peradventure that ‘the
Constitution embodies a promise that a certain private sphere of individual
liberty will be kept largely beyond the reach of government.’ ” In re Search
Warrant (Sealed), 810 F.2d 67, 71 (3d Cir. 1987) (citing Thornburgh v. American
College of Obstetricians, 476 U.S. 747, 772 (1986)). “This constitutional right to
privacy extends to ‘the individual interest in avoiding disclosure of personal
matters.’ ” Id. (citing Whalen v. Roe, 429 U.S. 589, 599 (1977) (other citations
20
omitted)). “And as courts have held, medical records are clearly within this
constitutionally protected sphere.” Id. (referencing Whalen, 429 U.S. at 598;
United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980)
(“There can be no question that an employee’s medical records, which may
contain intimate facts of a personal nature, are well within the ambit of materials
entitled to privacy protection.”).
Post-Whalen, the Supreme Court has not specifically addressed whether
medical records are constitutionally protected. However, a majority of the
Circuit Courts of Appeals have concluded the constitutional right to privacy
extends to medical and prescription records.
Doe v. New York, 15 F.3d 264, 267 (2d Cir. 1994) (there is a Fourth
Amendment constitutional right of confidentiality to personal
medical information);
Doe v. Southeastern Pennsylvania Trans. Auth., 72 F.3d 1133,
1137 (3d Cir. 1995) (medical records are within the scope of privacy
protected by the Constitution), cert. denied, 519 U.S. 808 (1996);
Anderson v. Romero, 72 F.3d 518, 522 (7th Cir. 1995) (there is a
Fourth Amendment constitutional right to the confidentiality of
medical records);
Doe v. Attorney General of the United States, 941 F.2d 780,
795-796 (9th Cir. 1991)( there is a Fourth Amendment
constitutional right to the confidentiality of medical records),
vacated on other grounds sub nom. Reno v. Doe, 518 U.S.
1014 (1996);
A.L.A. v. W. Valley City, 26 F.3d 989, 990 (10th Cir. 1994)
(“[C]onfidential medical information is entitled to constitutional
privacy protection.”);
21
Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000) (“This
circuit . . . has repeatedly interpreted . . . Whalen v. Roe, 429 U.S.
589 (1977), as creating a right to privacy in the non-disclosure of
personal information.”), cert. denied, 534 U.S. 840 (2001);
Douglas v. Dobbs, 419 F.3d 1097, 1102 (10th Cir. 2005) (“[W]e have
no difficulty concluding that protection of a right to privacy in a
person’s prescription drug records, which contain intimate facts of a
personal nature, is sufficiently similar to other areas already
protected within the ambit of privacy.”), cert. denied, 546 U.S.
1138 (2006);
Harris v. Thigpen, 941 F.2d 1495, 1513 (11th Cir. 1991) (assuming
such right exists); and
Contra Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir. 1995) (holding
that constitutional right of privacy does not apply to a disclosure of
medical records).
While the United States Court of Appeals for the Eighth Circuit never
specifically addressed the issue, the court is confident the Eighth Circuit would
give constitutional protection to those records. In Cooksey v. Boyer, 289 F.3d
513, 515 (8th Cir. 2002), the court acknowledged “[i]t is established that ‘notions
of substantive due process contained within the Fourteenth Amendment
safeguard individuals from unwarranted governmental intrusions into their
personal lives.’ ” Id. at 515 (citing Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir.
1996) (citing Whalen, 429 U.S. at 598 n.23). The Cooksey court said “[t]his
safeguard includes protection of the ‘individual interest in avoiding disclosure of
personal matters,’ ” Id. (citing Eagle, 88 F.3d 620) (quoting Whalen, 429 U.S. at
599–600 ). The safeguard “has been characterized as ‘the right to
confidentiality.’ ” Id. (citing Eagle, 88 F.3d 620).
22
A number of district courts in the Eighth Circuit held that medical records
are entitled to constitutional privacy protection.5
Hopkins v. Jegley, 267 F. Supp. 3d 1024, 1094 (E.D. Ark. 2017)
(“Numerous courts have recognized that confidential medical
information is entitled to constitutional privacy protection in order
to prevent the disclosure of such personal medical records.”)
(referencing Cooksey, 289 F.3d at 516; A.L.A., 26 F.3d at 990; other
citations omitted);
Bolt v. Doe, No. 5:14-CV-5223, 2014 WL 5797706, at *5 (W.D. Ark.
Nov. 7, 2014) (The Fourth Amendment right of privacy “extends to
medical test results, medical records, and medical
communications.”) (referencing Ferguson v. City of Charleston,
532 U.S. 67, 78 (2001) (“The reasonable expectation of privacy
enjoyed by the typical patient undergoing diagnostic tests in a
hospital is that the results of those tests will not be shared with
nonmedical personnel without her consent.”); and
Shuda v. Williams, No. 4:08CV3168, 2008 WL 4661455, at *3 (D.
Neb. Oct. 20, 2008) (“By any estimation, medical records must be
considered extremely personal and entitled to protection under the
fourteenth amendment.”)
Considering the first factor in the qualified immunity analysis, Mr.
Kurtenbach has demonstrated that an unlawful seizure of his medical and
pharmacy information would constitute a violation of his rights under the Fourth
Amendment.
It must be noted that in Daulton v. Dooley, No. CIV. 05-4184, 2006 WL
1875900 (D.S.D. July 3, 2006), the district court held the disclosure of a
custodial prisoner’s medical records to the prison’s attorney “does not rise to the
level of a breach of a right recognized as ‘fundamental under the Constitution
and therefore, disclosure of plaintiff’s medical records did not violate a
constitutional right.” Id., 2006 WL 1875900, at *1 (citing Jarvis, 52 F.3d at
126).
5
23
The second step in the determination of whether AAG Qausney is entitled
to qualified immunity is “whether the right was clearly established at the time of
the deprivation.” Ehlers, 846 F.3d at 1008. Specifically, the court must
resolve whether “the contours of the right [were] sufficiently clear [in 2014] that a
reasonable official would understand that what [she] is doing violates that right.”
Id. In other words, would a reasonable officer know the issuance of the
subpoenas at the behest of a non-existent grand jury would violate Mr.
Kurtenbach’s Fourth Amendment rights? AAG Qausney asserts this question
must be answered in the negative as “there is no Eighth Circuit or U.S. Supreme
Court precedent that provides as such, and that no reasonable official would
understand that such particular conduct violates the Fourth Amendment . . . .”
(Docket 24 at p. 17).
“The investigative power of the grand jury is necessarily broad if its public
responsibility is to be adequately discharged.” Branzburg v. Hayes, 408 U.S.
665, 700 (1972) (citing Costello v. United States, 350 U.S. 359, 364 (1956)).
“Although the powers of the grand jury are not unlimited and are subject to the
supervision of a judge, the longstanding principle that ‘the public . . . has a right
to every man’s evidence,’ except for those persons protected by a constitutional,
common-law, or statutory privilege . . . is particularly applicable to grand jury
proceedings.” Branzburg, 408 U.S. at 688 (internal citations omitted). A grand
jury has the authority to issue subpoenas duces tecum to “compel the production
24
of evidence . . . as it considers appropriate . . . .” United States v. Calandra, 414
U.S. 338, 343 (1974).
Production of information pursuant to a subpoena “is proper if: (1) the
subpoena was issued pursuant to lawful authority, (2) the subpoena was issued
for a lawful purpose, (3) the subpoena requests information which is relevant to
the lawful purpose, and (4) the disclosure sought is not unreasonable.” United
States v. McDonnell Douglas Corp., 751 F.2d 220, 226 (8th Cir. 1984). “A
subpoena [d]uces tecum issued to obtain records is subject to no more stringent
Fourth Amendment requirements than is the ordinary subpoena. A search
warrant, in contrast, is issuable only pursuant to prior judicial approval and
authorizes Government officers to seize evidence without requiring enforcement
through the courts.” United States v. Miller, 425 U.S. 435, 446 n.8 (1976).
“The Fourth Amendment provides protection against a grand jury subpoena
duces tecum too sweeping in its terms to be regarded as reasonable.” United
States v. Dionisio, 410 U.S. 1, 11 (1973) (internal citation and quotation marks
omitted).
Under the rules governing federal criminal proceedings, “[a] subpoena
must state the court’s name and the title of the proceedings, include the seal of
the court, and command the witness to attend and testify at the time and place
the subpoena specifies.” Fed. R. Crim. P. 17(a). A subpoena duces tecum “may
order the witness to produce any books, papers, documents, data, or other
objects the subpoena designates.” Fed. R. Crim. P. 17(c)(1).
25
A prosecutor has the power to subpoena witnesses and to require the
production of documents before a state grand jury. South Dakota law provides
“[a] prosecuting attorney may issue subpoenas, subscribed by him, for witnesses
within the state, in support of a prosecution, or for such witnesses as a grand
jury may direct.” SDCL § 23A-14-2. State law permits the issuance of a
subpoena duces tecum. “A subpoena may also command the person to whom it
is directed to produce books, papers, documents, or other objects designated
therein. A court on motion made promptly may quash or modify a subpoena if
compliance would be unreasonable or oppressive.” SDCL § 23A-14-5.
While there may be no specific pre-existing law which expressly declares
the conduct of AAG Qausney was unlawful, with the extensive precedent of
constitutional and statutory authority recited above, the court must decide
whether “in light of pre-existing law the unlawfulness must be apparent.”
Ehlers, 846 F.3d at 1008. First, there was no grand jury convened and in
session at the time of the issuance of the three subpoenas. Second, the three
subpoenas did not direct the healthcare providers to deliver the documentation
sought to a grand jury or an active agent of a grand jury. Third, and most
important, the three subpoenas were not issued in the name of a court or grand
jury. Therefore, the issuance of the three subpoenas was not proper because
they were not “issued pursuant to lawful authority.” McDonnell Douglas Corp.,
751 F.2d at 226.
26
“[I]n light of pre-existing law” it would “be apparent” to a reasonable officer
in the same capacity of AAG Quasney that the issuance of the three subpoenas
was “unlawful.” Ehlers, 846 F.3d at 1008; see also Anderson, 483 U.S. at 640
(“The contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right. This is not to say that
an official action is protected by qualified immunity unless the very action in
question has previously been held unlawful . . . but it is to say that in the light of
pre-existing law the unlawfulness must be apparent.”).
The court finds the three subpoenas were issued “without a shadow of
authority.” Silverthorne Lumber Co. v. United States, 251 U.S. 385, 390 (1920).
Based on the above analysis, AAG Quasney is not entitled to qualified immunity.
WAIVER
As a final defense to Mr. Kurtenbach’s claim, the defendants argue Mr.
Kurtenbach waived his constitutional rights in the Community Supervision
Agreement. (Docket 24 at p. 18 n.13) (referencing Docket 25-1 ¶ 5). They
contend that even “[a]ssuming Plaintiff had a Fourth Amendment right, as a
parolee he . . . ‘consented’ to search and seizure with or without a search
warrant.” Id. (referencing Docket 25-1¶ 5).
Mr. Kurtenbach argues paragraph 5 of the Community Supervision
Agreement does not give consent, in advance, to all future searches. (Docket 31
at pp. 16-17). Rather, he contends the provision requires him to consent, if
asked to do so, in the future. Id. at p. 16. In addition, Mr. Kurtenbach argues
27
the language of the waiver does not include medical records as those “don’t fit
into any of the covered categories.” Id. at p. 17.
Paragraph 5 of the Community Supervision Agreement stated:
Search and Seizure:
I will submit my person, property, place of residence, vehicle and
personal effects to search and seizure at any time, with or without a
search warrant, whenever reasonable suspicion is determined by a
parole agent or law enforcement.
I agree to such a search and seizure at any place within or outside of
the boundaries of the State of South Dakota . . . .
(Docket 25-1 ¶ 5). The court does not agree with Mr. Kurtenbach’s reading of
the timing of the consent provision. The Supreme Court ruled the “Fourth
Amendment does not prohibit a police officer from conducting a suspicionless
search of a parolee.” Samson v. California, 547 U.S. 843, 857 (2006). The
purpose of paragraph 5 was to acknowledge, in advance, that Mr. Kurtenbach
was at the time of the execution of the agreement giving his consent to all future
searches and seizures of his person and the items identified. A parole agent or
law enforcement officer did not have to ask Mr. Kurtenbach during a face-to-face
confrontation in the future for his consent. The purpose of paragraph 5 was to
simply acknowledge the Supreme Court ruling of Samson.
The real question is whether paragraph 5 extends to Mr. Kurtenbach’s
medical or pharmacy records. The parties provide the court no authority which
concludes these records are included in a general consent to search provision of
a parolee or other defendant under supervision. The court believes this issue is
28
significant to the resolution of both plaintiff’s constitutional claims and
defendants’ motion to dismiss count 1. The issue may impact plaintiff’s
damages claim and defendants’ waiver argument. By separate order the court
will direct the parties to brief these issues.
DECLARATORY AND INJUNCTIVE RELIEF
Mr. Kurtenbach also seeks declaratory and injunctive relief against
Attorney General Jackley in count 1 to prohibit the future use of subpoenas like
the three subpoenas analyzed above. (Docket 15 at p. 6 ¶ 33(b)). Attorney
General Jackley seeks dismissal of count 1 asserting Mr. Kurtenbach “fails to
allege or describe any policy or custom that played a part in any alleged violation
of federal law. . . . Because he has failed in doing so, he cannot show that such
alleged policy or custom was the moving force behind his alleged deprivation.”
(Docket 24 at p. 12) (referencing Hafer v. Melo, 502 U.S. 21 (1991) and Kentucky
v. Graham, 473 U.S. 159 (1985)). In response, Mr. Kurtenbach points to the
state order in which the court found “the State admitted it uses phony
subpoenas routinely.” (Docket 31 at p. 27) (referencing Docket 15-2 at p. 6)
(“The use of these unsupervised investigative subpoenas is widespread. In its
brief, the State admits that based on a brief survey, the State’s Attorney’s offices
in Custer, Gregory, Lawrence, Meade, and Union Counties ‘routinely issue
subpoenas to obtain medical records in criminal cases.’ ”) (internal reference
omitted). (Docket 15-2 at p. 6).
29
“This court has ‘original jurisdiction . . . to redress the deprivation, under
color of any State law . . . of any right . . . secured by the Constitution . . . .”
Tribe v. Fleming, No. CIV. 13-5020, 2016 WL 7324077, at *7 (D.S.D. Dec. 15,
2016) (citing 28 U.S.C. § 1343(a)(3)). “The court also has jurisdiction ‘to secure
equitable or other relief under any Act of Congress providing for the protection of
civil rights . . . .’ ” Id. (citing 28 U.S.C. § 1343(a)(4)). The focus of declaratory
and injunctive relief is not to address any alleged injuries to Mr. Kurtenbach in
the past, but to prevent future constitutional violations. Id. In order for a state
official to be sued in his official capacity for prospective injunctive relief, Mr.
Kurtenbach must prove a continuing or impending state action that violates the
Constitution and he must show that “the entity itself is a ‘moving force’ behind
the deprivation.” Graham, 473 U.S. at 166 (citing Polk County v. Dodson, 454
U.S. 312, 326 (1981).
At this point in the litigation and assuming all facts of the complaint are
true, the court finds it must not dismiss count 1 for declaratory and injunctive
relief against Attorney General Jackley. The parties should be permitted to
conduct pretrial discovery to determine whether, in fact, there is an on-going
practice of using the unlawful subpoenas analyzed above and whether Attorney
General Jackley’s Office has a practice or policy of endorsing the use of the
subpoenas.
30
COUNT 2: UNFETTERED STATE SURVEILLANCE OF
INDIVIDUALS’ PHARMACY RECORDS
In count 2, Mr. Kurtenbach challenges South Dakota Division of Criminal
Investigation Agent Wenande’s use of the Prescription Drug Monitoring Program
(“PDMP”). (Docket 15 at p. 6) (referencing SDCL Title 34, Chapter 20e). Mr.
Kurtenbach claims the PDMP violates the constitutional right of privacy. Id. at
p. 8 ¶ 40. Mr. Kurtenbach asserts that Attorney General Jackley, Agent
Wenande and Secretary Daemingk knew or should have known that searches
instigated under the PDMP were unconstitutional. Id. ¶¶ 41-43. Plaintiff
alleges Attorney General Jackley and Secretary Daemingk failed to properly train
and supervise their subordinates and knew the use of the PDMP was ongoing
and improper. Id. ¶ 46. Mr. Kurtenbach seeks money damages and injunctive
relief against Agent Wenande, and declaratory and injunctive relief against
Attorney General Jackley and Secretary Kaemingk. Id. at p. 9 ¶ 47.
Fed. R. Civ. P. 5.1 requires a party seeking to challenge the
constitutionality of any state statute to comply with the provisions of that section
as a condition precedent to a district court taking any action upon the challenge.
Rule 5.1 provides in relevant part:
(a)
Notice by a Party. A party that files a pleading . . . drawing
into question the constitutionality of a . . . state statute must
promptly:
(1)
file a notice of constitutional question stating the
question and identifying the paper that raises it,
if:
....
31
(B)
(2)
a state statute is questioned and the
parties do not include the state, one
of its agencies, or one of its officers or
employees in an official capacity; and
serve the notice and paper . . . on the state
attorney general if a state statute is
questioned--either by certified or registered
mail or by sending it to an electronic
address designated by the attorney general
for this purpose.
Fed. R. Civ. P. 5.1(a)(1)(B) and (a)(2). South Dakota law contains a similar notice
provision. “When the constitutionality of an act of the Legislature affecting the
public interest is drawn in question in any action to which the state or an
officer, agency, or employee of the state is not a party, the party asserting the
unconstitutionality of the act shall notify the attorney general thereof within
such time as to afford him the opportunity to intervene.” SDCL § 15-6-24(c).
While Attorney General Jackley is a named defendant, plaintiff has not
complied with the provisions of Rule 5.1, in that he has not filed a “notice of
constitutional question,” and the State of South Dakota has not been named as a
defendant. Fed. R. Civ. P. 5.1(a)(1). Additionally, the parties did not brief the
constitutionality of the PDMP to the extent the court believes necessary to resolve
the challenge. The court reserves consideration of any challenge in count 2 to
the constitutionality of the PDMP until plaintiff complies with Rule 5.1(a)(1). If
that occurs, the court will issue a separate briefing schedule to resolve the
constitutional challenge.
32
QUALIFIED IMMUNITY
To the extent count 2 seeks money damages against Agent Wenande, the
court finds he is entitled to protection from plaintiff’s claim under the cloak of
qualified immunity. The court cannot expect that a Division of Criminal
Investigation agent, or any other law enforcement officer for that matter, would
know or reasonably contemplate that a program enacted by the South Dakota
legislature would violate a citizen’s constitutional right of privacy. Furthermore,
injunctive relief against Agent Wenande in this litigation would be improper.
Mr. Kurtenbach’s count 2 claims against Agent Wenande are dismissed with
prejudice.
As to the count 2 claim seeking declaratory and injunctive relief against
Attorney General Jackley, those claims are intrinsically linked with plaintiff’s
constitutional challenges to the PDMP. Secretary Kaemingk is not associated
with plaintiff’s constitutional challenge to the PDMP. Count 2 as it relates to
Secretary Kaemingk is dismissed without prejudice.
COUNT 4: JAILING OF PAROLEES WITHOUT A PROPER BASIS
In count 4 of the amended complaint, Mr. Kurtenbach alleges his state
parole supervisor, Nathan Hower, had Mr. Kurtenbach arrested and jailed in
violation of his constitutionally protected liberty interests. (Docket 15 at
pp. 11 ¶59-12 ¶ 69). Mr. Kurtenbach alleges Mr. Hower acted on instructions
from Agent Wenande. Id. at p. 11 ¶ 64. “By jailing [Mr. Kurtenbach] without
any legal basis,” plaintiff alleges “the State violated [his] right to due process
33
under the Fifth and Fourteenth Amendments.” Id. at p. 12 ¶ 69). Mr.
Kurtenbach seeks money damages against Agent Wenande, as well as injunctive
relief against Agent Wenande, Attorney General Jackley and Secretary
Daemingk. Id. at p. 13 ¶ 72(a) & (b).
Defendants seek dismissal of count 4 asserting Mr. Kurtenbach, as a state
parolee, signed a Community Supervision Agreement, specifically permitting
“any parole agent . . . to place [Mr. Kurtenbach] in custody at any time . . . if [he
is] alleged to be in violation of any conditions of this agreement.” (Docket 24 at
p. 21) (citing Docket 25-1 at p. 3). Mr. Kurtenbach counters defendants’
argument asserting that while his parole officer may have “had suspicions” of
criminal conduct and that he was violating his parole conditions, no one “had
. . . substantiated them.” (Docket 31 at p. 32). Mr. Kurtenbach argues “the
provision in the parole agreement should not be interpreted as permitting
indefinite jailing based on no more than an unsubstantiated suspicion.” Id.
Mr. Kurtenbach contends the court should construe the Community Supervision
Agreement so it “requires some evidentiary substantiation” before his “limited
liberty interest” is revoked. Id. at p. 33 (referencing Morrissey v. Brewer,
408 U.S. 471, 485 (1972) (“Such an inquiry should be seen as in the nature of a
‘preliminary hearing’ to determine whether there is probable cause or reasonable
ground to believe that the arrested parolee has committed acts that would
constitute a violation of parole conditions.”).
34
Mr. Kurtenbach signed the Community Supervision Agreement on
February 21, 2013, as a condition of parole and his release from custody.
(Docket 25-1). As a condition of parole, Mr. Kurtenbach agreed to “obey all
Municipal, County, State, Tribal, and Federal Laws.” Id. at p. 2 ¶ 1. With his
signature, Mr. Kurtenbach acknowledged “understand[ing] and agree[ing] that
any parole agent has the authority to place [him] in custody any time and begin
revocation proceedings if [he is] alleged to be in violation of any conditions of this
agreement, and that my supervision may be revoked.” Id. at p. 3.
In his amended complaint, Mr. Kurtenbach acknowledged that “[i]n
December 2013, [his] parole officer, Nathan Hower, suspected that [he] had
attempted to obtain prescription narcotics intended for pain treatment. Mr.
Hower suspected that [Mr. Kurtenbach] didn’t really need the drugs and
therefore that his attempt broke the law.” (Docket 15 at p. 4 ¶ 17). “Mr. Hower
told Mr. Wenande . . . about [those] suspicions [and] Mr. Wenande began to
investigate.” Id. ¶ 18. Using the statutory authority permitted by the PDMP,
Agent Wenande obtained copies of Mr. Kurtenbach’s pharmacy records. Id.
¶¶ 35 & 44. Mr. Hower called Mr. Kurtenbach, asking him to go to the
Pennington County Sheriff’s Office to pick up some civil papers. Id. at p. 12
¶ 65. When Mr. Kurtenbach arrived at the Sheriff’s Office, he was placed in
custody at the jail. Id. He remained in custody “for approximately three
weeks.” Id.
35
Mr. Kurtenbach, as a parolee, “does not enjoy the same right as ordinary
citizens not to be arrested absent probable cause.” Porter v. Wyse, No.
4:09-CV-00903, 2011 WL 13202674, at *2 (E.D. Ark. Jan. 12, 2011) (referencing
Morrissey, 408 U.S. at 480). The arrest of Mr. Kurtenbach, as a parolee, on the
basis of reasonable suspicion satisfied the Fourth Amendment. United States v.
Knights, 534 U.S. 112, 121 (2001).
In count 4, Mr. Kurtenbach sues Agent Wenande for money damages.
(Docket 15 at p. 13 ¶ 72(a)). While Agent Wenande may have been in a
discussion about arresting Mr.Kurtenbach, Agent Wenande did not have plaintiff
arrested. Count 4 fails to state a claim against Agent Wenande and must be
dismissed. Fed. R. Civ. P. 12(b)(6).
Plaintiff alleges that “[b]y jailing [him] without any legal basis, the State
violated [his] right to due process under the Fifth and Fourteenth Amendments.”
(Docket 15 at p. 12 ¶ 69). The State of South Dakota has immunity from
plaintiff’s claim in count 4. Will, 491 U.S. at 66.
Plaintiff seeks declaratory and injunctive relief against Attorney General
Jackley and Secretary Daemingk. (Docket 15 at p. 12 ¶ 72(b)). He asks the
court to declare that the “State’s jailing of [him] violated his Constitutional rights
to due process” and seeks “an order enjoining the Attorney General and
Secretary of Corrections (or their subordinates) from jailing parolees on the basis
of unsubstantiated suspicions; and an order requiring the Attorney General and
36
Secretary of Corrections to instruct their subordinates to refrain from engaging
in that practice.” Id.
Count 4 fails to state a viable claim against Attorney General Jackley or
Secretary Daemingk, and a generalized claim that they are jailing parolees on the
basis of unsubstantiated suspicions constitutes mere speculation. Defendants’
motion to dismiss count 4 against Attorney General Jackley and Secretary
Daemingk is granted.
COUNT 5: UNAUTHORIZED REVOCATION OF PAROLE
Count 5 of the amended complaint alleges that in November 2016 while he
was on state parole, Mr. Kurtenbach was arrested for “absconding from parole
supervision and of using or possessing drugs.” (Docket 15 at p. 14 ¶ 76). He
further alleges that at a subsequent hearing Director Clark found Mr.
Kurtenbach “had not absconded, but that [he] had failed to keep his parole
supervisor informed of his whereabouts and that [he] had used or possessed
drugs.” Id. ¶ 77. Based on those findings, Director Clark affirmed the
revocation of Mr. Kurtenbach’s parole. Id. ¶ 78. Mr. Kurtenbach alleges South
Dakota “law does not permit revocation of parole for the offenses Director Clark
found [he had] . . . committed.” Id. ¶ 79. “By revoking [his] parole without
authorization of law,” Mr. Kurtenbach alleges “the State deprived [him] of his
freedom without Constitutionally guaranteed due process of law.” Id. at p. 15
¶ 82. Mr. Kurtenbach alleges “the State singled [him] out for unauthorized
revocation in order to retaliate against him for suing to protect his constitutional
37
rights, and in order to prevent [him] from exercising his constitutional rights. In
doing so, the State deprived [Mr. Kurtenbach] of his Constitutionally protected
right to the equal protection of the laws.” Id. ¶ 83. Finally, “[o]n information
and belief,” Mr. Kurtenbach alleges Attorney General Jackley and Secretary
Daemingk “failed to properly train and supervise their subordinates. On
information and belief, the sort of violations described here have occurred
frequently enough that the Attorney General and Secretary of Corrections knew
or should have known they were happening and that they were improper.” Id.
¶ 84. In count 5, Mr. Kurtenbach seeks money damages against Director Clark,
in his personal capacity, and declaratory and injunctive relief against Attorney
General Jackley and Secretary Daemingk. Id. at p. 16 ¶ 85(a) & (b).
Defendants seek dismissal of count 5 of the amended complaint. (Docket
24 at pp. 9-10 & 21-22). Director Clark seeks dismissal on the basis of absolute
immunity. Id. at p. 21. Director Clark asserts that as a probation officer he is
“entitled to absolute immunity when [he] perform[s] discretionary tasks that play
an integral part in the decision making process, such as when [he] evaluate[s]
facts, draw legal conclusions, and make recommendations.” Id. (referencing
Anton v. Getty, 78 F.3d 393, 396 (8th Cir. 1996)). Director Clark argues he is
entitled to absolute immunity even if he made “an unconstitutional or unlawful
decision.” Id. (referencing Patterson v. Von Riesen, 999 F.2d 1235, 1239 (8th
Cir. 1993)).
38
Plaintiff acknowledges count 5 is “presently barred by the Heck doctrine.”
(Docket 31 at p. 35) (italics in original). He asserts, however, if he wins the state
habeas petition presently pending in state court, then count 5 will survive. Id.
(referencing Docket 25-8).
The court finds Director Clark is entitled to absolute immunity on the
claims made against him in count 5. The amended complaint acknowledges
Director Clark was acting in a quasi-judicial capacity when conducting the
parole revocation. In that capacity, whether he made a mistake or
unconstitutional decision in revoking Mr. Kurtenbach’s parole, Director Clark is
entitled to absolute immunity. “ ‘[P]arole officials in deciding to grant, deny, or
revoke parole, perform functions comparable to those of judges,’ and are,
therefore, entitled to absolute immunity.” Getty, 78 F.3d at 396 (citing Evans v.
Dillahunty, 711 F.2d 828 (8th Cir. 1983)). See also Von Riesen, 999 F.2d at
1239 (“An official does not act outside [his] jurisdiction simply because [he]
makes an unconstitutional or unlawful decision.”). Count 5 as it relates to
Director Clark is dismissed with prejudice.
Count 5 fails to state a viable claim against Attorney General Jackley or
Secretary Daemingk, and a generalized claim they are failing to properly train or
supervise their subordinates constitutes mere speculation. Defendants’ motion
to dismiss count 5 against Attorney General Jackley and Secretary Daemingk is
granted.
39
COUNT 6: DELAYED AND DENIED PRELIMINARY REVOCATION
HEARING
In count 6 of the amended complaint, Mr. Kurtenbach alleges that after his
arrest for a parole violation in November 2016, the State failed to give him a
timely preliminary hearing. (Docket 15 at p. 16 ¶¶ 86-87). He alleges that
instead of conducting a preliminary hearing in Rapid City, South Dakota, he was
transferred to Sioux Falls, South Dakota. Id. ¶ 87. Mr. Kurtenbach contends
“[o]n information and belief, the State conducts all parole revocation hearings in
Sioux Falls, regardless of where the related alleged offenses occurred.” Id. at
p. 17 ¶ 90. Mr. Kurtenbach alleges this action violates his right of due process
to “a prompt hearing near the place where the alleged offenses occurred.” Id.
¶ 91. “On information and belief,” Mr. Kurtenbach alleges Attorney General
Jackley and Secretary Daemingk “failed to properly train and supervise their
subordinates. On information and belief, the sort of violations described here
have occurred frequently enough that the Attorney General and Secretary of
Corrections knew or should have known they were happening and that they were
improper.” Id. ¶ 92. Mr. Kurtenbach seeks money damages against Director
Clark in his personal capacity and declaratory and injunctive relief against
Attorney General Jackley and Secretary Daemingk. Id. ¶ 93(a) & (b).
Defendants seek dismissal of count 6. (Docket 24 at p. 22). They argue
the South Dakota Board of Pardons and Parole documentation tell a different
story than that told by Mr. Kurtenbach. Id. Defendants represent that the
40
revocation hearing documentation discloses Mr. Kurtenbach waived a
preliminary hearing. Id. (referencing Docket 25-9 at p. 3).
Mr. Kurtenbach challenges defendants’ basis for dismissal, contending
that just because “[t]wo members of the parole board made a finding that [Mr.
Kurtenbach] [waived a preliminary hearing]” does not make is so. (Docket 31 at
p. 36). Mr. Kurtenbach argues “[w]aiver is a disputed fact question.”
Pursuant to Fed. R. Evid. 201(b)(2), the court takes judicial notice of the
fact that the violation hearing record states “[a] preliminary hearing with respect
to the above referenced charge has been waived.” (Docket 25-9 at p. 3). The
record further discloses that Mr. Kurtenbach was represented by an attorney at
that hearing. Id. Without supporting factual information, Mr. Kurtenbach’s
argument does not prohibit the court from taking judicial notice of the findings of
the violation hearing board.
Mr. Kurtenbach’s contention he “will likely continue to be exposed to
Parole Board misconduct” in future parole settings is mere speculation and does
not give him standing to challenge the procedures of the South Dakota Board of
Pardons and Parole in the manner asserted in count 6. (Docket 31 at p. 37).
Defendants’ motion to dismiss count 6 is granted.
COUNT 7: RETALIATION FOR SEEKING A PAROLE BOARD MEETING
Count 7 of the amended complaint alleges that while Mr. Kurtenbach was
incarcerated in the South Dakota prison system he was transferred from a
minimum custody facility to maximum security for asking for a parole board
41
hearing and for asking to present mitigating information to the parole board.
(Docket 15 at p. 18 ¶¶ 94-97). He alleges “[t]he State took these actions to
retaliate against [him] for seeking to exercise his Constitutional right to a Parole
Board hearing in connection with the revocation of his parole.” Id. ¶ 98. Mr.
Kurtenbach alleges “[t]hese actions were directed or approved by Mr. Clark as
well as others.” Id. ¶ 101. Mr. Kurtenbach claims these actions violated his
rights to due process and equal protection. Id. ¶¶ 99-100. “On information
and belief,” Mr. Kurtenbach alleges Attorney General Jackley and Secretary
Daemingk “failed to properly train and supervise their subordinates. On
information and belief, the sort of violations described here have occurred
frequently enough that the Attorney General and Secretary of Corrections knew
or should have known they were happening and that they were improper.” Id. at
p. 19 ¶ 102. Mr. Kurtenbach seeks money damages against Director Clark,
together with declaratory and injunctive relief against Attorney General Jackley
and Secretary Daemingk. Id. ¶ 103(a) & (b). For the same reasons argued for
dismissal of count 6, defendants seek dismissal of count 7. (Docket 24 at
pp. 22-23).
“Although a prisoner enjoys no constitutional right to remain in a
particular institution, . . . and although generally prison officials may transfer a
prisoner for whatever reason or for no reason at all, . . . a prisoner cannot be
transferred in retaliation for the exercise of a constitutional right.” Goff v.
Burton, 7 F.3d 734, 737 (8th Cir. 1993) (internal citations and quotation marks
42
omitted). “A prima facie case of retaliatory discipline requires a showing that:
(1) the prisoner exercised a constitutionally protected right; (2) prison officials
disciplined the prisoner; and (3) exercising the right was the motivation for the
discipline.” Haynes v. Stephenson, 588 F.3d 1152, 1155 (8th Cir. 2009)
(quoting Meuir v. Greene County Jail Employees, 487 F.3d 1115, 1119 (8th Cir.
2007)). The law is well-settled that filing a grievance is a constitutionally
protected First Amendment activity. Lewis v. Jacks, 486 F.3d 1025, 1029 (8th
Cir. 2007). See Haynes, 588 F.3d at 1156 (stating that, regardless whether
reclassifying an inmate or moving the inmate to a different cell constitutes
“discipline,” the very filing of a disciplinary charge amounts to discipline that “‘is
actionable under section 1983 if done in retaliation.’ ” (quoting Sprouse v.
Babcock, 870 F.2d 450, 452 (8th Cir. 1989))).
“[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 County, 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
43
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
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).
Plaintiff’s amended complaint fails to identify any state employee directly
involved in the alleged retaliatory conduct. A generalized statement that the
actions of others were directed or approved by Director Clark is insufficient to
create a viable cause of action. The court finds count 7 fails to state a cause of
action against Director Clark.
Count 7 fails to state a viable claim against Attorney General Jackley or
Secretary Daemingk, and a generalized claim that they are failing to properly
train or supervise their subordinates constitutes mere speculation.
Defendants’ motion to dismiss count 7 against Attorney General Jackley and
Secretary Daemingk is granted.
ORDER
Based on the above analysis, it is
IT IS ORDERED that defendants’ motion to dismiss (Docket 23) is granted
in part and denied in part.
IT IS FURTHER ORDERED that defendants’ motion to dismiss count 1 of
the amended complaint against AAG Quasney is denied.
44
IT IS FURTHER ORDERED that defendants’ motion to dismiss count 1 of
the amended complaint against Attorney General Jackley is denied.
IT IS FURTHER ORDERED that defendants’ motion to dismiss count 2 of
the amended complaint against Mr. Wenande is granted.
IT IS FURTHER ORDERED that defendants’ motion to dismiss count 2 of
the amended complaint against Attorney General Jackley is denied without
prejudice. If plaintiff intends to pursue a constitutional challenge to SDCL Title
34, Chapter 20e, he must comply with Fed. R. Civ. P. 5.1 on or before April 13,
2018.
IT IS FURTHER ORDERED that defendants’ motion to dismiss count
3 of the amended complaint is granted.
IT IS FURTHER ORDERED that defendants’ motion to dismiss count
4 of the amended complaint is granted.
IT IS FURTHER ORDERED that defendants’ motion to dismiss count
5 of the amended complaint is granted.
IT IS FURTHER ORDERED that defendants’ motion to dismiss count 6 of
the amended complaint is granted.
IT IS FURTHER ORDERED that defendants’ motion to dismiss count 7 of
the amended complaint is granted.
Dated March 29, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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