United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
11, 2015, plaintiff Clayton Walker filed a complaint against
the above-captioned defendants pursuant to 42 U.S.C. §
1983. (Docket 1). Defendant Black Hills Fugitive Task Force
(“Task Force”) failed to respond and the Clerk of
Court entered default in Mr. Walker’s favor. (Docket
20). Defendants move to set aside the entry of default and to
dismiss Mr. Walker’s complaint. (Dockets 23 & 29).
Mr. Walker moves the court to grant default judgment and for
summary judgment. (Dockets 21 & 35).
September 2014, Mr. Walker was arrested by the Task Force in
his home in Black Hawk, South Dakota. (Docket 1 at
¶¶ 3, 9). Mr. Walker alleges deputy United States
Marshal Joseph Harmon entered his residence without a search
warrant and when he tried to surrender he was forced to the
ground and kneed in the spine. Id. at ¶¶
14-22. Mr. Walker filed this action under § 1983,
seeking “damages for false impressments, [e]xcessive
force, assault, trespass and gross negligence. . . . pursuant
to 42 USCA 1983 and 42 USCA 1988 and the Fourth and
[F]ourteenth Amendments to the United Sates
Constitution.” Id. at ¶¶ 2, 5. Mr.
Walker also alleges South Dakota state law claims of
“false arrest, assault, [e]xcessive force, trespass,
negligence and false imprisonment” pursuant to the
court’s supplemental jurisdiction under 28 U.S.C.
§ 1367. Id. at ¶ 6.
defendants failed to respond to the complaint, Mr. Walker
moved for entry of default against Deputy Harmon (Docket 11)
and the Task Force. (Docket 19). The Clerk of Court denied
the motion against Deputy Harmon (Docket 13) but granted the
motion against the Task Force. (Docket 20). Mr. Walker now
moves the court to enter a default judgment against the Task
Force. (Docket 21). Defendants move to set aside the
clerk’s entry of default against the Task Force.
(Docket 23). Defendants argue the Task Force does not have
the capacity to be sued and, to the extent it is being sued
“under the umbrella of the U.S. Marshals Service,
” the time to answer had not yet run when it responded.
(Docket 24 at p. 2). As is discussed more fully below,
defendants also move to dismiss Mr. Walker’s complaint
under various legal theories. (Dockets 29 & 30).
defendants couch their motion as a Fed.R.Civ.P. 12(b)(1)
motion to dismiss for lack of subject matter jurisdiction or,
alternatively, under Rule 12(b)(6) for failure to state a
claim on which relief can be granted. (Docket 30 at p. 1). In
light of the Rule 12(b)(1) motion, defendants rely on matters
outside of the pleadings in arguing the merits of the motion
to dismiss. Id. at 6. While the court can consider
matters outside of the pleadings when resolving a Rule
12(b)(1) motion, see Osborn v. United States, 918
F.2d 724, 730 (8th Cir. 1990) (citing Mortensen v. First
Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d
Cir. 1977)), this is not true for many of the arguments
defendants made under the auspices of their Rule 12(b)(1)
Task Force’s primary argument in support of its motion
to set aside the clerk’s entry of default, its response
to Mr. Walker’s motion for default judgment, and its
portion of defendants’ motion to dismiss is that it is
not an entity capable of being sued. See Dockets 24
at pp. 6-9; 30 at pp. 7-8. Underlying the Task Force’s
assertion are the statements contained in the declaration of
Deputy Harmon (Docket 25), which is in turn supported by the
arrest warrant for Mr. Walker (Docket 25-1) and the U.S.
Marshals Service Report of Investigation for Mr. Walker.
(Docket 25-2). The Task Force’s argument that it is not
an entity capable of being sued is not the proper basis for a
Rule 12(b)(1) motion to dismiss.
Task Force’s cited authority demonstrates this.
See Docket 30 at p. 7. In Brown v. Fifth
Judicial Dist. Drug Task Force, the United States Court
of Appeals for the Eighth Circuit, on plain error review,
upheld a district court’s grant of a Rule 12(b)(6)
motion to dismiss and determined the defendant, the Fifth
Judicial District (of Arkansas) Drug Task Force, was a
multi-governmental unit that was not capable of being sued.
255 F.3d 475, 476-78 (8th Cir. 2001). In support of this
conclusion, the Eighth Circuit noted “authorities more
directly in point appear to be uniform in holding that drug
task forces similar to the defendant in this case are not
separate legal entities subject to suit.” Id.
at 477-78 (citing Eversole v. Steele, 59 F.3d 710
(7th Cir. 1995); Hervey v. Estes, 65 F.3d 784, 792
(9th Cir. 1995); Dillon v. Jefferson County
Sheriff’s Department, 973 F.Supp. 626 (E.D. Tex.
1997); Alexander v. City of Rockwall, No. CIV.A.
3:95- *478 CV-0489, 1998 WL 684255 (N.D. Tex., Sept. 29,
Hervey and Dillon were resolved through
summary judgment motions. Alexander was resolved
through a Rule 12(b)(6) motion to dismiss. None were resolved
through a Rule 12(b)(1) motion to dismiss. See Klebanow
v. New York Produce Exch., 344 F.2d 294, 296 n.1 (2d
Cir. 1965) (“Although the defense of lack of capacity
is not expressly mentioned in rule 12(b), the practice has
grown up of examining it by a 12(b)(6) motion when the defect
appears upon the face of the complaint.”). See
also 5A Fed. Prac. & Proc. § 1294 (3d
ed.) (A defendant’s denial of capacity can be raised
through “a motion to dismiss for failure to state a
claim for relief” or as a motion for summary judgment
“[i]f the motion is supported by matters outside the
pleadings, it may be treated as a motion for summary
Task Force also asserts to the extent Mr. Walker brings
“official capacity” claims against it under the
umbrella of the United States Marshals Service, he failed to
properly accomplish service under Fed.R.Civ.P. 4(i)(2) and
his complaint must be dismissed. (Docket 30 at p. 10). The
Task Force contends Mr. Walker failed to properly serve a
copy of the summons on the United States Attorney’s
Office. Id. Motions to dismiss for
insufficient service of process are properly brought under
Fed.R.Civ.P. 12(b)(5)-not Rule 12(b)(1). See Rasor v.
Fed. Bureau of Prisons, No. CIV. 05-981(DWF/FLN), 2006
WL 1174221, at *4 (D. Minn. May 1, 2006).
Harmon, as part of defendants’ Rule 12(b)(1) motion to
dismiss, argues Mr. Walker’s claims must be dismissed
because Harmon is entitled to qualified immunity. (Docket 30
pp. at 11-12). The court typically resolves claims of
qualified immunity through a Rule 12(b)(6) motion to dismiss
or a motion for summary judgment. See, e.g.,
Capps v. Olson, 12-5025-JLV (Docket 40) (D.S.C.
2012). Furthermore, the factual background provided in
support of Deputy Harmon’s claim of qualified immunity
embraces statements contained in Deputy Harmon’s
declaration to the exclusion of the assertions in Mr.
Walker’s complaint. See Docket 30 at p. 11;
see also Crawford-El v. Britton, 523 U.S. 574, 598
(1998) (In resolving ...