United States District Court, D. South Dakota, Western Division
RANDALL J. MEIDINGER, Plaintiff,
CITY OF RAPID CITY; and PETER RAGNONE; STEVE ALLENDER; JOHN LEAHY, and SAM KOOIKER, in their individual capacities. Defendants.
REPORT AND RECOMMENDATION RE: SUMMARY JUDGMENT MOTION (DOC. 38) AND MOTION TO DISMISS (DOC. 44)
JOHN SIMKO, Magistrate Judge.
Pending are defendants' joint motion for summary judgment (Doc. 38), Kooiker's motion for leave to file an amended answer (Doc. 42), and Kooiker's motion to dismiss for failure to state a claim (Doc. 44).
PLEADINGS FILED BY THE PARTIES
In support of the motion for summary judgment defendants filed their Statement of Material Facts (Doc. 39); Memorandum (Doe. 40); and Affidavit in Support of their Motion for Summary Judgment with attached Exhibits A-G (Doc. 41).
In opposition to the summary judgment motion plaintiff filed his Response to Motion for Summary Judgment (Doc. 56); Memorandum in Opposition (Doc. 57); Statement of Material Facts (Doc. 58); Affidavit of Angela M. Colbath (Doc. 59) with attached Exhibits 1-48 (Does. 59-77).
In support of Kooiker's motion to dismiss (Doc. 44) he filed a Motion for Leave to File an Amended Answer (Doc. 42); Memorandum in Support of the motion to amend (Doc. 43); and a Memorandum in Support of the motion to dismiss (Doc. 45).
In opposition to the motion to dismiss plaintiff filed Response (Doc. 54) and Memorandum (Doc. 55). Defendants also filed reply briefs (Doc. 79 re: the motion for summary judgment and Doc. 80 re: the motion to dismiss).
Based on a careful consideration of all the evidence and counsel's written submissions the Court respectfully makes the following:
It is respectfully recommended that the Motions for Summary Judgment by Rapid City, Sam Kooiker, John Leahy, and Steve Allender be GRANTED. It is respectfully recommended that the motion by Peter Ragnone addressing the Fourteenth Amendment be GRANTED and addressing the Fourth Amendment be DENIED.
It is respectfully recommended that Sam Kooiker's Motion to Dismiss For Failure To State a Cause of Action (legislative immunity) should be DENIED. Sam Kooiker's motion to amend his answer is being contemporaneously DENIED in a separate Order.
Plaintiff Randy Meidinger sued the defendants under 42 U.S.C. § 1983 alleging defendants deprived him of certain constitutional rights under color oflaw. The pending motions were referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A), Judge Schreier's Standing Order dated March 18, 2010 and Judge Viken's Amended Order of Referral (Doc. 49).
Disputed facts are viewed in the light most favorable to Meidinger. Randy Meidinger was employed at the Rapid City Landfill. Peter Ragnone is employed with the Rapid City Police Department. Steve Allender is the Chief of Police for the Rapid City Police Department. John Leahy was formerly employed at the Rapid City Landfill. Sam Kooiker was an alderman on the city council from 2002 until he was elected Mayor of Rapid City in 2011.
In the spring of 2009 city alderman Sam Kooiker was told by owners of a private landfill that Fish Garbage Service was probably cheating the city by dumping material at the Rapid City landfill at reduced rates or for free by declaring the material as alternative cover when it was not alternative cover. Generally Concover is used five days per week and dirt is used one day per week to cover waste dumped at the landfill. Alternative cover is material the city could also use to cover waste. Because the city can use alternative cover at the landfill for the same purpose as cover the city must buy, alternative cover is accepted at reduced rates or for free to save the money the city would otherwise spend to buy cover. Sawdust is one type of alternative cover, but not the only type of alternative cover. Alternative cover is also soil saturated with hydrocarbons, street sweepings, ground-asphalt, dirt and mud. John Leahy told Ragnone in his memo that in addition to Concover, "[o]thers such as sawdust/glue from Merilatt, soil contaminated with heavy hydrocarbons, street sweepings, etc. are used as cover intermittently during daily operations."
In April, 2009, Warren Ghere contacted Kooiker to tell him that loads coming into the landfill were not being properly weighed or were not being properly described at the landfill scale. Warren and DeeDee Ghere identified Meidinger as the inside man. Kooiker in turn told Detective Ragnone that Meidinger was in collusion with Fish Garbage Service. Meidinger was accused of allowing Fish Garbage Service trucks to declare that sawdust was being carried when sawdust was not being carried on the truck.
On May 2, 2009, Kooiker sent an email to Robert Ellis, P.E., Public Works Director, saying a hauler dumped several loads in early April classified as "shingles/asphalt" and paid the $20 per ton rate instead of $54. "... This hauler may have been getting deals like this for awhile from an inside connection at the landfill."
On May 5, 2009, Public Works Director Ellis replied to Kooiker "we spent a great deal of time yesterday investigating this matter and I am confident in saying there exists no collusion to defraud the City Landfill between either Fish Garbage Service or our landfill attendants." Randy Meidinger was asked directly if he was or is "on the take" with Fish Garbage Service. Meidinger said "no." Ellis, Jerry Wright and John Leahy have "no reason to believe that Randy is a dishonest person" and he "has been a very good employee and has a positive track record with the Solid Waste Division."
Kooiker pressed for an investigation by law enforcement. The investigation was assigned to police officer Peter Ragnone. Kooiker was no longer involved in the investigation after law enforcement began its investigation. But Kooiker later ran for mayor of Rapid City and made the landfill issue the centerpiece of his campaign. He aggressively criticized his opponent and his opponent's handling of the landfill issue. Kooiker won the election.
In August, 2009, Ragnone began to investigate allegations that Fish drivers were defrauding the city through means of deception or collusion with a city employee, Randall Meidinger, who operated the scalehouse at the landfill. Meidinger was like a gatekeeper. Ragnone first talked to a former scalehouse employee, Darrel Bishop. Bishop caught Fish drivers declaring material as alternative cover when it was not. Ragnone also interviewed Fish Garbage employee Don Anderson who was treated as a confidential informant.
On September 11, 2009, Ragnone interviewed Meidinger. Meidinger acknowledged drivers of Fish Garbage Service trucks identified material as alternate cover when it was not. Meidinger acknowledged receiving a total of $200 (fifty or one hundred dollars on different occasions a few years before 2009) from the owners of Fish at Christmas time. He also acknowledged being invited by Fish to a Christmas party in Deadwood. Meidinger explained that if a driver declared a load to be alternative cover, he accepted their word for it. There was no city policy at that time which required Meidinger to visually inspect a load to verify the material was what the driver declared it to be. Ragnone testified to a grand jury that Dave Holtz was in the habit of inspecting loads, but Darrel Bishop was not. Ragnone provided information to the State's expert witness which she used to prepare an exhibit to illustrate the misidentified loads which came across the scale. The exhibit erroneously attributed to Meidinger misidentified loads coming across the scale when he was not working. The exhibit also attributed to Meidinger misidentified loads which came across the scale when he was working. Meidinger acknowledged cutting breaks to Fish drivers, but persistently denied knowingly cutting breaks to Fish drivers. Meidinger was interrogated on a Friday. On the following Monday he was fired. Meidinger was indicted by three different grand juries. Meidinger's case was tried to a jury in May of 2011. He was acquitted.
On March 4, 2010 and on March 31, 2011, Ragnone testified to two separate grand juries. Ragnone told the first grand jury alternative cover is exclusively sawdust. "It's the same stuff that you would sweep off your garage floor if you cut a board or was building a deck. It's just that, it's sawdust. On both occasions he testified that Meidinger confessed to knowingly cutting breaks to Fish in exchange for money. On July 22, 2010, there was also a grand jury which considered charges against Meidinger. Ragnone did not testify to the July, 2010, grand jury. Captain Cady did. Cady is not a defendant in this case.
Merillat is the only producer of sawdust who needs a commercial garbage hauler to haul its sawdust to the landfill. Fish is the only commercial garbage hauler who hauls for Merillat. Ragnone testified to the grand jury that only sawdust is alternative cover and that only Fish Garbage Service possessed a contract to haul sawdust to the Landfill. If sawdust were the only alternative cover and if Fish Garbage were the only contract hauler for sawdust, then only Fish Garbage Service could be hauling alternative cover and only Fish could be receiving financial breaks from Meidinger.
But Kieffer, another garbage hauler, was also hauling material into the landfill which was declared as alternative cover. Kieffer declared more than 700 tons of alternative cover at the landfill during pertinent times. That Kieffer declared loads as alternative cover is inconsistent with Ragnone's conclusions (1) that only sawdust is alternative cover, (2) that only Fish could haul sawdust, and tends to be inconsistent with Ragnone's conclusion that Meidinger was accepting bribes from Fish.
Accepting Meidinger's version as true, false testimony was presented to the grand juries which indicted Meidinger:
Ragnone testified that alternative cover is sawdust. But alternative cover is not exclusively sawdust.
Ragnone testified Meidinger accepted money in exchange for cutting breaks for Fish drivers. But the money given to Meidinger was Christmas gratuities amounting to no more than $200 and he did not knowingly cut breaks to Fish drivers.
On September 7, 2012, Fish Garbage confessed judgment in a civil lawsuit commenced by the City of Rapid City. In a sworn confession of judgment Clifford Fish as president of Fish Garbage Service, Inc. said that Fish Garbage Service at times after 2003 misidentified refuse to obtain a financial benefit for Fish Garbage Service. He also said that Fish Garbage Service recognized that the City relied upon the representations of Fish about the contents of its loads. Nothing in the Confession of Judgment implicated Meidinger. Rather, the Confession of Judgment tends to exonerate Meidinger inasmuch as it asserted "the city relied upon the representations" of Fish.
Meidinger was also sued by Rapid City in the same lawsuit. The lawsuit against him was dismissed at sometime after Fish confessed judgment.
A. ABSOLUTE IMMUNITY: Kooike's Motion To Dismiss As A Matter Of Law Based On Legislative Immunity.
Kooiker moves to dismiss Meidinger's lawsuit as a matter of law. Kooiker urges that because he was an alderman on the city council in Rapid City at pertinent times he is absolutely immune from being sued for activities connected with city council functions. "Reading the complaint liberally and taking its allegations as true' Kooiker is not protected by absolute, legislative immunity.
Legislative immunity is rooted in the Speech or Debate clause of the South Dakota Constitution as well as the United States Constitution. The South Dakota Constitution provides:
Senators and representatives shall, in all cases except treason, felony or breach of the peace, be privileged from arrest during the session of the Legislature, and in going to and returning from the same; and for words used in any speech or debate in either house they shall not be questioned in any other place. 
"A local legislator is entitled to absolute legislative immunity for acts undertaken within the sphere of legitimate legislative activity.... For example, passing an ordinance is a legislative act.' "Hiring and firing of specific individuals generally is not protected by legislative immunity because it is an administrative action In contrast, the wholesale elimination of a position is considered legislative action protected by legislative immunity because it may have prospective implications that reach well beyond the particular occupant of the office."
Judge Richard W. Roberts, district judge for the District of Columbia, recently gathered precedent and described the principles of legislative immunity:
In determining whether legislative immunity applies, a court asks whether the action at issue was undertaken within the legislative sphere. Williams v. Johnson, 597 F.Supp.2d 107, 113 (D.D.C.2009) (citation omitted). Once the legislative act test is met, immunity is absolute, id. at 115 (quoting MINPECO, S.A. v. Conticommodity Services, Inc., 844 F.2d 856, 862 (D.C.Cir.1988)) even if the legislator's conduct, if performed in other... contexts, would... be unconstitutional or otherwise contrary to law. Brown, 62 F.3d at 415 (quoting Doe v. McMillan, 412 U.S. 306, 312-13, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973)). However, only purely legislative activities, United States v. Brewster, 408 U.S. 501, 512, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972)-i.e., acts inherent in the legislative process, are protected. Chastain v. Sundquist, 833 F.2d 311, 314 (D.C.Cir.1987). Such acts must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation. Id. (quoting Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972)). Protected legislative acts include delivering an opinion, uttering a speech, or haranguing in debate; proposing legislation; voting on legislation; making, publishing, presenting, and using legislative reports; ...