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Engesser v. Fox

United States District Court, D. South Dakota, Western Division

September 26, 2016





         Plaintiff Oakley Engesser sues the above-captioned defendants alleging various claims under 42 U.S.C. § 1983 as well as claims under South Dakota state law pursuant to the court's supplemental jurisdiction under 28 U.S.C. § 1367. See Docket 15 at pp. 20-35. Mr. Engesser asserts his civil rights under the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution were violated. Id. at 34.

         Plaintiff's complaint contains seven substantive counts and an eighth count requesting damages. Id. at 20-35. Defendants Trooper Edward Fox and the State of South Dakota (“State”) filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (Docket 18). Defendant Michael Kayras filed a Rule 12(b)(6) motion to dismiss on the same grounds as those asserted by Trooper Fox. (Docket 29). Defendants Jennifer Utter, Gordon Swanson, Amber Richey and Meade County filed a joint Rule 12(b)(6) motion to dismiss and motion to strike. (Docket 20). Mr. Engesser resists in part defendants' motions. (Dockets 25, 27 & 36). For purposes of judicial economy, the court resolves all three motions together.


         In 2001, a jury convicted Oakley “Bernie” Engesser of vehicular homicide and two counts of vehicular battery. The sole issue at the trial was whether Engesser or the deceased, Dorothy Finley, was driving her Corvette when it crashed into a minivan on Interstate 90. Neither Engesser nor Finley was wearing a seatbelt and both had been drinking alcoholic beverages. The Corvette was going approximately 112 miles per hour when it slammed into the back of the minivan, spun off the road, and rolled several times before coming to rest on its roof in the median. . . . No witness at trial testified to seeing the driver of the Corvette. Engesser was thrown from the car, landing face down in the median. Multiple witnesses at trial placed him between five and ten feet from the driver's side of the Corvette. Engesser was unconscious and suffered a gash to the right side of his head. Finley was trapped in the car on the passenger side underneath the passenger seat, her body in line with the seat. The upper part of Finley's body was lying over the top of the seat. She was facing the ground. Her feet were underneath the dash. Her face was pointing toward the driver's side. The passenger side was crushed and the window shattered, but the roof and front windshield were intact. Finley was pronounced dead at the scene.

Engesser v. Young, 856 N.W.2d 471, 473 (S.D. 2014) (some internal quotation marks and citations omitted); see also Docket 15 at ¶¶ 63-65.

         Because the procedural history and factual circumstances underlying Mr. Engesser's claims are well documented in prior judicial opinions and in plaintiff's amended complaint, additional recitation of salient facts is included in the discussion section of the order.


         I. Rule 12(b)(6) Motion to Dismiss Standard

         “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . .” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations, quotation marks and brackets omitted). The “plausibility standard” at the pleading stage requires a showing greater than the mere possibility of misconduct yet less than the probability of misconduct. Id. at 556-58.

         To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570) (other internal citation omitted). The Court in Iqbal expounded on the “plausibility standard” articulated in Twombly:

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.' ” . . .
[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. . . . [O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged―but it has not “show[n]”-“that the pleader is entitled to relief.”

556 U.S. at 678-79 (internal citations omitted).

         “In analyzing a 12(b)(6) motion, this court assumes all factual allegations in the complaint are true, but the complaint must contain sufficient facts, as opposed to mere conclusions, to satisfy the legal requirements of the claim to avoid dismissal.” Taxi Connection v. Dakota, Minnesota & E. R.R. Corp., 513 F.3d 823, 826 (8th Cir. 2008) (internal quotation marks omitted). While the court must accept plaintiff's “factual allegations . . . [it] need not accept as true [his] legal conclusions even if they are cast in the form of factual allegations . . . .” Ashley v. U.S. Department of Interior, 408 F.3d 997, 1000 (8th Cir. 2005) (internal citations and quotation marks omitted). “A motion to dismiss should be granted if it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief.” Id.; see also Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). “Where the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.” Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008).

         “[C]ourts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The court can consider matters in the public record when resolving a Rule 12(b)(6) motion to dismiss. See Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986); see also Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999) (noting courts can consider “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint”) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)); Vacanti v. Sunset Fin. Servs., Inc., No. 8:08CV436, 2009 WL 792387, at *3 (D. Neb. Mar. 23, 2009) (noting “documents necessarily embraced by the complaint are not considered to be matters outside the pleading”) (internal quotation marks and citations omitted).

         The court denies Ms. Utter's, Mr. Swanson's, Ms. Richey's and Meade County's request to strike the “procedural history” portion of Mr. Engesser's complaint. (Docket 21 at p. 4). The “procedural history” section of Mr. Engesser's amended complaint is important. The circumstances forming the basis for his claims have been in various stages of criminal and civil litigation for over fifteen years and have been the subject of several state and federal judicial opinions providing dispositive resolutions for many issues relating to Mr. Engesser's case. See State v. Engesser, 661 N.W.2d 739 (S.D. 2003) (“Engesser CR.”); Engesser v. Dooley, 457 F.3d 731 (8th Cir. 2006) (“Engesser 2006”); Engesser v. Dooley, 759 N.W.2d 309, 314 (S.D. 2008) (“Engesser 2008”); Engesser v. Dooley, 823 F.Supp.2d 910, 913 (D.S.D. 2011), rev'd and remanded, 686 F.3d 928 (8th Cir. 2012) (“Engesser 2011”); Engesser v. Dooley, 686 F.3d 928, 934 (8th Cir. 2012) (“Engesser 2012”); Engesser v. Young, 856 N.W.2d 471, 473 (S.D. 2014) (“Engesser 2014”). The prior opinions are referenced in the amended complaint and are also part of the public record. See Docket 15 at pp. 17-20. The court takes judicial notice of the opinions.

         II. Plaintiff's Substantive Claims

         A. Synopsis

         Plaintiff's amended complaint contains seven substantive counts against seven defendants. Count one alleges five theories of § 1983 liability against all seven defendants: (1) malicious prosecution; (2) false arrest; (3) use of unreliable and fraudulent investigative techniques; (4) procurement of unreliable and fabricated evidence; and (5) wrongful conviction and imprisonment. Id. at 20. In count two, plaintiff alleges a § 1983 conspiracy claim against all defendants but the State. Id. at 23. In count three, plaintiff alleges a § 1983 claim for oppression of exculpatory evidence against all defendants but the State. Id. at 25. In count four, plaintiff alleges a § 1983 claim for unconstitutional policies, practices and customs against all defendants but the State. Id. at 26-30. In count five, plaintiff alleges a state law claim for negligence resulting in wrongful incarceration and continued detention against all defendants. Id. at 30. In count six, plaintiff asserts a state law claim for false arrest against all defendants. Id. at 31. In count seven, plaintiff asserts a state law claim for malicious prosecution against all defendants. Id. at 32.

         Plaintiff's amended complaint is not a model of clarity under Fed.R.Civ.P. 8. In addition to plaintiff's subsequent clarifications regarding abandoned claims and the capacity in which certain defendants are being sued, plaintiff “adopts by reference all prior and subsequent paragraphs of this complaint” into every count of the complaint whether those paragraphs are applicable or not. See, e.g., id. at ¶ 77, 98 & 105. Plaintiff's pleading practice effectively turns the amended complaint into 35 pages of discrete allegations in which the plaintiff frequently only identifies the applicable opposing party collectively as “defendants, ” obscuring which claims apply to which defendants. Further, in counts 2-7, plaintiff lists “South Dakota Highway Patrol” as a named defendant despite failing to identify it as a party in the amended complaint. Id. at 1-2. The lack of clarity in the amended complaint complicates the court's task of parsing the pleading for purposes of resolving defendants' motions to dismiss.

         B. Legal Issues Common to Multiple Claims or Defendants

         1. Statute of Limitations

         Defendants make various statutes of limitation arguments asserting Mr. Engesser's § 1983 claims are time barred. In Heck v. Humphrey, the Supreme Court held:

[I]n order to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.

512 U.S. 477, 486-87 (1994) (emphasis added).

         The Heck Court further instructs:

A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.

Id. at 487 (emphasis in original).

         Defendants argue Mr. Engesser did not receive a favorable termination of his underlying criminal conviction. As a result, the time within which he could bring his § 1983 claims was not tolled under Heck and the applicable statutes of limitation have run and his claims are time barred. (Dockets 34 at pp. 11-13 & 21). In Engesser 2014, the South Dakota Supreme Court upheld the state circuit court's grant of Mr. Engesser's writ of habeas corpus and order for a new trial under SDCL § 21-27-5.1(1). 856 N.W.2d at 484. In reaching this decision, the Court “conclude[d] there is substantial evidence to support the circuit court's conclusion that Engesser established by clear and convincing evidence that no reasonable juror would have found him guilty of the underlying offense.” Id. Following the Supreme Court's decision, South Dakota Attorney General Marty Jackley announced “the State does not intend to move forward with a second trial. The State does reserve the right to evaluate any further evidence that may surface regarding any potential future action.” (Docket 26-1).

         Notwithstanding Attorney General Jackley's exercise of prosecutorial discretion, Mr. Engesser received a favorable termination of his underlying criminal case on November 12, 2014, when the South Dakota Supreme Court upheld the circuit court's grant of his writ of habeas corpus. The South Dakota Supreme Court's opinion speaks for itself: “the evidence offered in [Mr.] Engesser's trial that he was the driver was neither compelling nor substantial. And his newly discovered eyewitness testimony presents reliable proof, along with all the evidence, to conclude that no reasonable fact finder would have found [Mr.] Engesser guilty of the offenses charged against him.” Engesser 2014, 856 N.W.2d at 484 n.4 (citing SDCL § 21-27-5.1(1)). Mr. Engesser satisfied Heck's favorable termination requirement. Except for Mr. Engesser's false arrest claims, which he has abandoned, his surviving § 1983 claims imply the invalidity of his underlying conviction, so they did not accrue until November 12, 2014, when the South Dakota Supreme Court invalidated his conviction. See Heck, 512 U.S. at 489-90 (“Just as a cause of action for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiff's favor . . . so also a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.).

         2. Sovereign Immunity and the Eleventh Amendment

         “The Eleventh Amendment generally bars suits for damages against a state or state officials in their official capacities unless the state waives its sovereign immunity.” Christensen v. Quinn, 45 F.Supp.3d 1043, 1059 (D.S.D. 2014), reconsideration denied, Civ. No. 10-4128, 2014 WL 6471378 (D.S.D. Nov. 18, 2014) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989)). “Immunity from suit is a question of law for the court, not a question of fact for a jury to decide.” Id. at 1059 (citing Lopez v. Mendez, 432 F.3d 829, 835 (8th Cir. 2005)).

         Mr. Engesser asserts Trooper Fox and Mr. Kayras “had insurance coverage through the Highway Patrol's participation in a risk-sharing pool known as the South Dakota Public Assurance Alliance [(“SDPAA”)].” (Docket 25 at p. 12). The SDPAA is another name for South Dakota's required self-insurance known as the public entity pool for liability (“PEPL”). See Goddard v. City of Deadwood, No. CIV. 09-5069, 2011 WL 4549171, at *11 (D.S.D. June 3, 2011), report and recommendation adopted, No. CIV. 09-5069, 2011 WL 4549158 (D.S.D. Sept. 29, 2011), aff'd sub nom. Goddard v. S. Dakota Pub. Assur. All., 687 F.3d 965 (8th Cir. 2012) (citing South Dakota Public Entity Pool for Liability v. Winger, 566 N.W.2d 125, 126 (S.D. 1997)).

         At the outset, the court notes Mr. Engesser did not respond to the State's argument that it has not waived its sovereign immunity. In his response to Trooper Fox's and Mr. Kayras' motion to dismiss, Mr. Engesser indicated he was not suing them in their official capacities in his § 1983 claims. See Docket 25 at p. 3; see infra Part I.B.3. “A suit against a public employee in his or her official capacity is merely a suit against the public employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). In light of Mr. Engesser's lack of a response and concession concerning his official capacity claims against Trooper Fox and Mr. Kayras, the court finds he has abandoned his claims against the State.

         “Furthermore, neither a state nor its officials acting in their official capacities are ‘persons' who may be sued for money damages under § 1983.” Christensen, 45 F.Supp.3d at 1059 (citing Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 617 (2002)). Plaintiff seeks only money damages in his amended complaint. (Docket 15 at pp. 34-35). Finally, “respondeat superior or vicarious liability will not attach under § 1983.” Rutan v. State of S. Dakota, No. CIV. 05-4070, 2005 WL 1398596, at *3 (D.S.D. June 14, 2005) (citing Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 778 (8th Cir. 2001)). The court dismisses Mr. Engesser's § 1983 claims against the State.

         The court will not dismiss Mr. Engesser's individual capacity § 1983 claims against Trooper Fox and Mr. Kayras on the basis of sovereign immunity. The South Dakota Supreme Court acknowledged:

Under [its] decision in Request for Advisory Opinion, 379 N.W.2d 822 (S.D. 1985), PEPL would not qualify as liability insurance to waive sovereign immunity under SDCL 21-32-16; therefore, SDCL 21-32-17 purports to grant absolute and complete immunity. However, under the 1991 amendment to SDCL 21-32A-2, PEPL would represent an effective waiver of sovereign immunity as a “risk-sharing pool.”

Kyllo v. Panzer, 535 N.W.2d 896, 900 n.7 (S.D. 1995).

         “Under the current statutory scheme, unless a claim falls within PEPL fund coverage, the doctrine of sovereign immunity applies to abrogate that claim.” Id. at 900. “The PEPL fund provides no payment for, among other things, non-economic damages, including, but not limited to, damages for pain, suffering, inconvenience, physical impairment, disfigurement, loss of society and companionship, and hedonic damages.” Id. (internal quotation marks and brackets omitted).

         In Kyllo, the South Dakota Supreme held:

The common law of negligence existed well before the South Dakota Constitution, as did employees' personal liability for their wrongful conduct. The legislature does not have the authority to wholly abrogate such common-law actions guaranteed by the constitution . . . . It therefore can impose only reasonable restrictions that do not infringe on these protected rights. . . . Considering the history of sovereign immunity, the common law of negligence and the South Dakota Constitution, we agree that SDCL ...

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