United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Oakley Engesser sues the above-captioned defendants alleging
various claims under 42 U.S.C. § 1983 as well as claims
under South Dakota state law pursuant to the court's
supplemental jurisdiction under 28 U.S.C. § 1367.
See Docket 15 at pp. 20-35. Mr. Engesser asserts his
civil rights under the First, Fourth, Fifth, Sixth, Eighth,
Ninth and Fourteenth Amendments of the United States
Constitution were violated. Id. at 34.
complaint contains seven substantive counts and an eighth
count requesting damages. Id. at 20-35. Defendants
Trooper Edward Fox and the State of South Dakota
(“State”) filed a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6). (Docket 18). Defendant Michael Kayras
filed a Rule 12(b)(6) motion to dismiss on the same grounds
as those asserted by Trooper Fox. (Docket 29). Defendants
Jennifer Utter, Gordon Swanson, Amber Richey and Meade County
filed a joint Rule 12(b)(6) motion to dismiss and motion to
strike. (Docket 20). Mr. Engesser resists in part
defendants' motions. (Dockets 25, 27 & 36). For
purposes of judicial economy, the court resolves all three
2001, a jury convicted Oakley “Bernie” Engesser
of vehicular homicide and two counts of vehicular battery.
The sole issue at the trial was whether Engesser or the
deceased, Dorothy Finley, was driving her Corvette when it
crashed into a minivan on Interstate 90. Neither Engesser nor
Finley was wearing a seatbelt and both had been drinking
alcoholic beverages. The Corvette was going approximately 112
miles per hour when it slammed into the back of the minivan,
spun off the road, and rolled several times before coming to
rest on its roof in the median. . . . No witness at
trial testified to seeing the driver of the Corvette.
Engesser was thrown from the car, landing face down in the
median. Multiple witnesses at trial placed him between five
and ten feet from the driver's side of the Corvette.
Engesser was unconscious and suffered a gash to the right
side of his head. Finley was trapped in the car on the
passenger side underneath the passenger seat, her body in
line with the seat. The upper part of Finley's body was
lying over the top of the seat. She was facing the ground.
Her feet were underneath the dash. Her face was pointing
toward the driver's side. The passenger side was crushed
and the window shattered, but the roof and front windshield
were intact. Finley was pronounced dead at the scene.
Engesser v. Young, 856 N.W.2d 471, 473 (S.D. 2014)
(some internal quotation marks and citations omitted);
see also Docket 15 at ¶¶ 63-65.
the procedural history and factual circumstances underlying
Mr. Engesser's claims are well documented in prior
judicial opinions and in plaintiff's amended complaint,
additional recitation of salient facts is included in the
discussion section of the order.
Rule 12(b)(6) Motion to Dismiss Standard
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations . . . a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. . . . Factual allegations must
be enough to raise a right to relief above the speculative
level . . . .” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (internal citations, quotation marks
and brackets omitted). The “plausibility
standard” at the pleading stage requires a showing
greater than the mere possibility of misconduct yet less than
the probability of misconduct. Id. at 556-58.
survive a Rule 12(b)(6) motion to dismiss for failure to
state a claim upon which relief may be granted, “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.' . . . A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 570) (other internal citation
omitted). The Court in Iqbal expounded on the
“plausibility standard” articulated in
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.” A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a
“probability requirement, ” but it asks for more
than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are
“merely consistent with” a defendant's
liability, it “stops short of the line between
possibility and plausibility of ‘entitlement to
relief.' ” . . .
[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice. . . . Rule 8 marks a notable and generous departure
from the hyper-technical, code-pleading regime of a prior
era, but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions. . . .
[O]nly a complaint that states a plausible claim for relief
survives a motion to dismiss. Determining whether a complaint
states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense. But where
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged―but it has not
“show[n]”-“that the pleader is entitled to
556 U.S. at 678-79 (internal citations omitted).
analyzing a 12(b)(6) motion, this court assumes all factual
allegations in the complaint are true, but the complaint must
contain sufficient facts, as opposed to mere conclusions, to
satisfy the legal requirements of the claim to avoid
dismissal.” Taxi Connection v. Dakota, Minnesota
& E. R.R. Corp., 513 F.3d 823, 826 (8th Cir. 2008)
(internal quotation marks omitted). While the court must
accept plaintiff's “factual allegations . . . [it]
need not accept as true [his] legal conclusions even if they
are cast in the form of factual allegations . . . .”
Ashley v. U.S. Department of Interior, 408 F.3d 997,
1000 (8th Cir. 2005) (internal citations and quotation marks
omitted). “A motion to dismiss should be granted if it
appears beyond doubt that the plaintiff can prove no set of
facts which would entitle him to relief.” Id.;
see also Fusco v. Xerox Corp., 676 F.2d 332, 334
(8th Cir. 1982). “Where the allegations show on the
face of the complaint there is some insuperable bar to
relief, dismissal under Rule 12(b)(6) is appropriate.”
Benton v. Merrill Lynch & Co., Inc., 524 F.3d
866, 870 (8th Cir. 2008).
must consider the complaint in its entirety, as well as other
sources courts ordinarily examine when ruling on Rule
12(b)(6) motions to dismiss, in particular, documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007). The court can consider matters in the public
record when resolving a Rule 12(b)(6) motion to dismiss.
See Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986);
see also Porous Media Corp. v. Pall Corp., 186 F.3d
1077, 1079 (8th Cir. 1999) (noting courts can consider
“matters of public record, orders, items appearing in
the record of the case, and exhibits attached to the
complaint”) (quoting 5A Charles A. Wright & Arthur
R. Miller, Federal Practice and Procedure §
1357 (2d ed. 1990)); Vacanti v. Sunset Fin. Servs.,
Inc., No. 8:08CV436, 2009 WL 792387, at *3 (D. Neb. Mar.
23, 2009) (noting “documents necessarily embraced by
the complaint are not considered to be matters outside the
pleading”) (internal quotation marks and citations
court denies Ms. Utter's, Mr. Swanson's, Ms.
Richey's and Meade County's request to strike the
“procedural history” portion of Mr.
Engesser's complaint. (Docket 21 at p. 4). The
“procedural history” section of Mr.
Engesser's amended complaint is important. The
circumstances forming the basis for his claims have been in
various stages of criminal and civil litigation for over
fifteen years and have been the subject of several state and
federal judicial opinions providing dispositive resolutions
for many issues relating to Mr. Engesser's case. See
State v. Engesser, 661 N.W.2d 739 (S.D. 2003)
(“Engesser CR.”); Engesser v.
Dooley, 457 F.3d 731 (8th Cir. 2006)
(“Engesser 2006”); Engesser v.
Dooley, 759 N.W.2d 309, 314 (S.D. 2008)
(“Engesser 2008”); Engesser v.
Dooley, 823 F.Supp.2d 910, 913 (D.S.D. 2011),
rev'd and remanded, 686 F.3d 928 (8th Cir. 2012)
(“Engesser 2011”); Engesser v.
Dooley, 686 F.3d 928, 934 (8th Cir. 2012)
(“Engesser 2012”); Engesser v.
Young, 856 N.W.2d 471, 473 (S.D. 2014)
(“Engesser 2014”). The prior opinions
are referenced in the amended complaint and are also part of
the public record. See Docket 15 at pp. 17-20. The
court takes judicial notice of the opinions.
Plaintiff's Substantive Claims
amended complaint contains seven substantive counts against
seven defendants. Count one alleges five theories of §
1983 liability against all seven defendants: (1) malicious
prosecution; (2) false arrest; (3) use of unreliable and
fraudulent investigative techniques; (4) procurement of
unreliable and fabricated evidence; and (5) wrongful
conviction and imprisonment. Id. at 20. In count
two, plaintiff alleges a § 1983 conspiracy claim against
all defendants but the State. Id. at 23. In count
three, plaintiff alleges a § 1983 claim for oppression
of exculpatory evidence against all defendants but the State.
Id. at 25. In count four, plaintiff alleges a §
1983 claim for unconstitutional policies, practices and
customs against all defendants but the State. Id. at
26-30. In count five, plaintiff alleges a state law claim for
negligence resulting in wrongful incarceration and continued
detention against all defendants. Id. at 30. In
count six, plaintiff asserts a state law claim for false
arrest against all defendants. Id. at 31. In count
seven, plaintiff asserts a state law claim for malicious
prosecution against all defendants. Id. at 32.
amended complaint is not a model of clarity under
Fed.R.Civ.P. 8. In addition to plaintiff's subsequent
clarifications regarding abandoned claims and the capacity in
which certain defendants are being sued, plaintiff
“adopts by reference all prior and subsequent
paragraphs of this complaint” into every count of the
complaint whether those paragraphs are applicable or not.
See, e.g., id. at ¶ 77, 98 & 105.
Plaintiff's pleading practice effectively turns the
amended complaint into 35 pages of discrete allegations in
which the plaintiff frequently only identifies the applicable
opposing party collectively as “defendants, ”
obscuring which claims apply to which defendants. Further, in
counts 2-7, plaintiff lists “South Dakota Highway
Patrol” as a named defendant despite failing to
identify it as a party in the amended complaint. Id.
at 1-2. The lack of clarity in the amended complaint
complicates the court's task of parsing the pleading for
purposes of resolving defendants' motions to dismiss.
Legal Issues Common to Multiple Claims or Defendants
Statute of Limitations
make various statutes of limitation arguments asserting Mr.
Engesser's § 1983 claims are time barred. In
Heck v. Humphrey, the Supreme Court held:
[I]n order to recover damages for [an] allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C.
512 U.S. 477, 486-87 (1994) (emphasis added).
Heck Court further instructs:
A claim for damages bearing that relationship to a conviction
or sentence that has not been so invalidated is not
cognizable under § 1983. Thus, when a state prisoner
seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless
the plaintiff can demonstrate that the conviction or sentence
has already been invalidated.
Id. at 487 (emphasis in original).
argue Mr. Engesser did not receive a favorable termination of
his underlying criminal conviction. As a result, the time
within which he could bring his § 1983 claims was not
tolled under Heck and the applicable statutes of
limitation have run and his claims are time barred. (Dockets
34 at pp. 11-13 & 21). In Engesser 2014, the
South Dakota Supreme Court upheld the state circuit
court's grant of Mr. Engesser's writ of habeas corpus
and order for a new trial under SDCL § 21-27-5.1(1). 856
N.W.2d at 484. In reaching this decision, the Court
“conclude[d] there is substantial evidence to support
the circuit court's conclusion that Engesser established
by clear and convincing evidence that no reasonable juror
would have found him guilty of the underlying offense.”
Id. Following the Supreme Court's decision,
South Dakota Attorney General Marty Jackley announced
“the State does not intend to move forward with a
second trial. The State does reserve the right to evaluate
any further evidence that may surface regarding any potential
future action.” (Docket 26-1).
Attorney General Jackley's exercise of prosecutorial
discretion, Mr. Engesser received a favorable termination of
his underlying criminal case on November 12, 2014, when the
South Dakota Supreme Court upheld the circuit court's
grant of his writ of habeas corpus. The South Dakota Supreme
Court's opinion speaks for itself: “the evidence
offered in [Mr.] Engesser's trial that he was the driver
was neither compelling nor substantial. And his newly
discovered eyewitness testimony presents reliable proof,
along with all the evidence, to conclude that no reasonable
fact finder would have found [Mr.] Engesser guilty of the
offenses charged against him.” Engesser 2014,
856 N.W.2d at 484 n.4 (citing SDCL § 21-27-5.1(1)). Mr.
Engesser satisfied Heck's favorable termination
requirement. Except for Mr. Engesser's false arrest
claims, which he has abandoned, his surviving § 1983
claims imply the invalidity of his underlying conviction, so
they did not accrue until November 12, 2014, when the South
Dakota Supreme Court invalidated his conviction. See
Heck, 512 U.S. at 489-90 (“Just as a cause of
action for malicious prosecution does not accrue until the
criminal proceedings have terminated in the plaintiff's
favor . . . so also a § 1983 cause of action for damages
attributable to an unconstitutional conviction or sentence
does not accrue until the conviction or sentence has been
Sovereign Immunity and the Eleventh Amendment
Eleventh Amendment generally bars suits for damages against a
state or state officials in their official capacities unless
the state waives its sovereign immunity.”
Christensen v. Quinn, 45 F.Supp.3d 1043, 1059
(D.S.D. 2014), reconsideration denied, Civ. No.
10-4128, 2014 WL 6471378 (D.S.D. Nov. 18, 2014) (citing
Will v. Mich. Dep't of State Police, 491 U.S.
58, 66 (1989)). “Immunity from suit is a question of
law for the court, not a question of fact for a jury to
decide.” Id. at 1059 (citing Lopez v.
Mendez, 432 F.3d 829, 835 (8th Cir. 2005)).
Engesser asserts Trooper Fox and Mr. Kayras “had
insurance coverage through the Highway Patrol's
participation in a risk-sharing pool known as the South
Dakota Public Assurance Alliance
[(“SDPAA”)].” (Docket 25 at p. 12). The
SDPAA is another name for South Dakota's required
self-insurance known as the public entity pool for liability
(“PEPL”). See Goddard v. City of
Deadwood, No. CIV. 09-5069, 2011 WL 4549171, at *11
(D.S.D. June 3, 2011), report and recommendation
adopted, No. CIV. 09-5069, 2011 WL 4549158 (D.S.D. Sept.
29, 2011), aff'd sub nom. Goddard v. S. Dakota Pub.
Assur. All., 687 F.3d 965 (8th Cir. 2012) (citing
South Dakota Public Entity Pool for Liability v.
Winger, 566 N.W.2d 125, 126 (S.D. 1997)).
outset, the court notes Mr. Engesser did not respond to the
State's argument that it has not waived its sovereign
immunity. In his response to Trooper Fox's and Mr.
Kayras' motion to dismiss, Mr. Engesser indicated he was
not suing them in their official capacities in his §
1983 claims. See Docket 25 at p. 3; see
infra Part I.B.3. “A suit against a public
employee in his or her official capacity is merely a suit
against the public employer.” Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (citing
Kentucky v. Graham, 473 U.S. 159, 165 (1985)). In
light of Mr. Engesser's lack of a response and concession
concerning his official capacity claims against Trooper Fox
and Mr. Kayras, the court finds he has abandoned his claims
against the State.
neither a state nor its officials acting in their official
capacities are ‘persons' who may be sued for money
damages under § 1983.” Christensen, 45
F.Supp.3d at 1059 (citing Lapides v. Bd. of Regents of
Univ. Sys. of Ga., 535 U.S. 613, 617 (2002)). Plaintiff
seeks only money damages in his amended complaint. (Docket 15
at pp. 34-35). Finally, “respondeat superior or
vicarious liability will not attach under § 1983.”
Rutan v. State of S. Dakota, No. CIV. 05-4070, 2005
WL 1398596, at *3 (D.S.D. June 14, 2005) (citing Shrum ex
rel. Kelly v. Kluck, 249 F.3d 773, 778 (8th Cir. 2001)).
The court dismisses Mr. Engesser's § 1983 claims
against the State.
court will not dismiss Mr. Engesser's individual capacity
§ 1983 claims against Trooper Fox and Mr. Kayras on the
basis of sovereign immunity. The South Dakota Supreme Court
Under [its] decision in Request for Advisory
Opinion, 379 N.W.2d 822 (S.D. 1985), PEPL would not
qualify as liability insurance to waive sovereign immunity
under SDCL 21-32-16; therefore, SDCL 21-32-17 purports to
grant absolute and complete immunity. However, under the 1991
amendment to SDCL 21-32A-2, PEPL would represent an effective
waiver of sovereign immunity as a “risk-sharing
Kyllo v. Panzer, 535 N.W.2d 896, 900 n.7 (S.D.
the current statutory scheme, unless a claim falls within
PEPL fund coverage, the doctrine of sovereign immunity
applies to abrogate that claim.” Id. at 900.
“The PEPL fund provides no payment for, among other
things, non-economic damages, including, but not limited to,
damages for pain, suffering, inconvenience, physical
impairment, disfigurement, loss of society and companionship,
and hedonic damages.” Id. (internal quotation
marks and brackets omitted).
Kyllo, the South Dakota Supreme held:
The common law of negligence existed well before the South
Dakota Constitution, as did employees' personal liability
for their wrongful conduct. The legislature does not have the
authority to wholly abrogate such common-law actions
guaranteed by the constitution . . . . It therefore
can impose only reasonable restrictions that do not infringe
on these protected rights. . . . Considering the
history of sovereign immunity, the common law of negligence
and the South Dakota Constitution, we agree that SDCL