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Estate of Johnson v. Weber

Supreme Court of South Dakota

June 14, 2017

2017 S.D. 36
v.
DOUGLAS WEBER, TROY PONTO, DARIN YOUNG, CRYSTAL VAN VOOREN, DENNY KAEMINGK, LAURIE FEILER, TIMOTHY A. REISCH, SOUTH DAKOTA DEPARTMENT OF CORRECTIONS, STATE OF SOUTH DAKOTA, and JOHN DOES 1-20, Defendants and Appellees.

          ARGUED FEBRUARY 14, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE MARK SALTER Judge

          DONALD M. McCARTY of Helsper, McCarty & Rasmussen, PC Brookings, South Dakota and JOHN W. BURKE of Thomas, Braun, Bernard & Burke, LLP Rapid City, South Dakota Attorneys for appellants.

          JAMES E. MOORE JAMES A. POWER of Woods Fuller Shultz & Smith P.C. Sioux Falls, South Dakota Attorneys for appellees.

          KERN, Justice

         [¶1.] Lynette Johnson, individually and on behalf of the Estate of Ronald E. Johnson (collectively Johnson), appeals from an order granting summary judgment. Ronald E. Johnson (Ronald) was a South Dakota State Penitentiary correctional officer murdered by two inmates during an escape attempt. Johnson sued the Department of Corrections (DOC) and a number of its employees in state court. Count 3 of Johnson's complaint alleged a constitutional claim, pursuant to 42 U.S.C. §1983, for a violation of substantive due process rights under the state and federal constitutions. DOC removed the case to federal district court and filed a motion for summary judgment on the grounds of qualified immunity. The federal court granted summary judgment and remanded the remaining claims back to state court. Johnson appealed and the Eighth Circuit Court of Appeals affirmed the federal district court's order granting summary judgment.

         [¶2.] After the case returned to state court, DOC moved for summary judgment on Johnson's remaining claims, which the circuit court granted. Johnson appeals the dismissal of three of those claims: intentional infliction of emotional distress, fraudulent misrepresentation, and a due process violation under the state constitution. We affirm.

         Facts and Procedural History

         [¶3.] The facts of this case are tragic. Ronald E. Johnson worked as a correctional officer for DOC at the South Dakota State Penitentiary (SDSP) for twenty-four years in a variety of capacities. Before his untimely death, Ronald was part of the "Early Rec Crew." His duties included running daily recreational periods; transporting inmates to various appointments and facilities; working in the dining hall; administering urinalyses, breathalyzers, pat downs, and strip searches; and completing various other duties. Ronald worked in all areas of the prison, taking on roles of absent employees.

         [¶4.] On April 12, 2011, Ronald was assigned to one of the Prison Industries buildings, where inmates work, attend school, or participate in programming. His duties included patrolling the hallways and common areas and monitoring inmate traffic. At approximately 10:45 a.m., a food truck arrived at the prison's West Gate. After permitting the truck to enter, guards discovered inmate Eric Robert (Robert) dressed in a correctional officer's uniform pushing a handcart loaded with a large box toward the gate. Inmate Rodney Berget (Berget) was hiding inside the box. The inmates made a violent and unsuccessful attempt to flee from prison staff and were apprehended. Robert's disguise prompted a search for the staff member to whom the uniform belonged. Ronald was found in the Prison Industries building stripped of his uniform, severely beaten, and unresponsive. He was rushed to Sanford Hospital, where he was pronounced dead at 11:50 a.m. Robert and Berget were later charged and convicted of murder in the first degree, and both received the death penalty. Robert was executed on October 15, 2012, and Berget remains incarcerated on death row.

         [¶5.] After the murder, DOC conducted an investigation and subsequently prepared a 28-page report dated May 9, 2011, entitled "SD Department of Corrections After-Incident Report" (Incident Report). The Incident Report, which was published on DOC's website, detailed the circumstances of Ronald's death and DOC's evaluation and implementation of changes necessary to prevent future occurrences of violent escape. The Incident Report was revised numerous times by staff within DOC and by the Governor's Office. DOC was under no obligation to prepare the Incident Report. The report, which included overall recommendations to improve security at the facility, concluded that DOC staff correctly followed all policies and procedures.

         [¶6.] In Johnson's view, the Incident Report left out critical details regarding the events that led up to Ronald's murder. Both Robert and Berget had extensive criminal histories, including crimes of violence, and they were classified as maximum-security inmates. Berget had been convicted of multiple offenses, including grand theft, burglary, escape, and kidnapping, and was serving a life sentence for attempted first-degree murder. Robert was serving an 80-year term in prison for kidnapping. Robert had pulled a woman over on the road while impersonating a law enforcement officer before forcing her into the trunk of her car. Johnson also observes that the Incident Report makes no mention of the fact that DOC relocated both Robert and Berget from maximum-security cells in Jameson Annex to West Hall, a high-medium-custody housing unit at the SDSP in June 2004 and 2009, respectively.[1] West Hall inmates are supervised by security rounds and cell checks. By contrast, inmates housed in Jameson Annex are subject to direct correctional supervision during movement and use of facilities.[2]

         [¶7.] Johnson further argues that the Incident Report intentionally omitted facts demonstrating that this placement violated DOC classification policy in several respects. Specifically, Johnson argues that the Incident Report failed to disclose DOC's prior knowledge of Robert and Berget's plans, albeit made years earlier, to kill DOC staff and escape; that DOC staff had expressed concerns about Robert and Berget's classification; that certain forms allowing Berget to be housed at West Hall lacked necessary signatures and were incomplete; and that DOC officials allegedly violated DOC policy by lowering Robert and Berget's housing classifications to end their use of hunger strikes. Johnson claims that the omission of these and other facts-facts which Johnson contends demonstrate DOC's facilitation of Ronald's death-was self-serving and designed to cover up DOC's alleged responsibility for Ronald's death.

         [¶8.] Based on these and other claims, Johnson sued DOC in state court on April 27, 2012, alleging (Count 1) wrongful death; (Count 2) a survival action; (Count 3) a 42 U.S.C. § 1983 claim; (Count 4) intentional infliction of emotional distress (IIED); (Count 5) negligent infliction of emotional distress; and (Count 6) fraudulent misrepresentation. With reference to Count 3, Johnson asserted claims under both the state and federal constitutions. Specifically, Johnson alleged that DOC's conduct affirmatively created the danger that led to Ronald's death in violation of his due process rights under the Fourteenth Amendment. Plaintiffs also alleged a violation of Ronald's due process rights contained in article VI, § 2 of the South Dakota Constitution. Defendants removed the case to federal court on the basis of Johnson's § 1983 claim. A brief summary of the federal litigation resolving this claim provides useful context for our decision.

         [¶9.] The United States District Court of South Dakota granted summary judgment in favor of DOC on Johnson's § 1983 claim on the grounds of qualified immunity. Under the doctrine of qualified immunity, government officials are immune from suit and shielded from liability unless their conduct violates a clearly-established statutory or constitutional right known to a reasonable person. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410 (1982). In its memorandum decision, the federal district court offered an extensive overview of the facts leading to Ronald's death. The court observed that both Robert and Berget were maximum-custody inmates and that DOC policy required they be housed in Jameson Annex barring a discretionary administrative decision specifying alternative housing. The court detailed the criminal histories of both men as well as their past escape attempts, including Berget's successful escape in 1984. The court noted that Robert had been disciplined as recently as 2007 for an escape attempt, while Berget's last documented attempt was made in 2003. The court additionally noted that a search of Berget's cell in August 2010 led to the discovery of razor blades and drill bits. Neither inmate, however, had a history of institutional violence.

          [¶10.] The court observed that DOC was aware of these facts when it transferred Robert and Berget to West Hall; additionally, it recognized that DOC failed to complete the process and necessary paperwork for authorization of such a transfer. Nevertheless, the court found that qualified immunity applied with respect to Johnson's § 1983 claim. The court observed that the Due Process Clause of the Fourteenth Amendment "protects individual liberty against certain government actions." However, the court recognized that the State is under no obligation to "protect the life, liberty, and property of its citizens against invasion by private actors." DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989). The court thus concluded that "state actors are liable under the Due Process Clause only for their own acts and not for the violent acts of third parties[.]" The court noted, however, that the Eighth Circuit recognizes two exceptions to this rule. The State may be liable if the person harmed is in the State's custody, or when the State creates the risk that endangered the individual. See Fields v. Abbott, 652 F.3d 886, 890 (8th Cir. 2011). The second of these exceptions is referred to as the state-created-danger theory of liability. Id. Pursuant to such a theory, a plaintiff must prove "(1) that [he] was a member of a 'limited, precisely definable group, ' (2) that the [official's] conduct put [him] at a 'significant risk of serious, immediate, and proximate harm, ' (3) that the risk was 'obvious or known' to the [official], (4) that the [official] 'acted recklessly in conscious disregard of the risk, ' and (5) that in total, the [official's] conduct 'shocks the conscience.'" Id. at 891 (quoting Hart v. City of Little Rock, 432 F.3d 801, 805 (8th Cir. 2005)).

         [¶11.] The court indicated that the fifth element of the Fields test requires that a plaintiff show that an official was deliberately indifferent to the danger created, meaning that the official was aware of facts from which an inference of substantial risk of harm could be drawn, and that the official actually drew such an inference. The court held that Johnson failed to prove as much: it explained that the complained of "conduct . . . is far removed from the ultimate harm to Ronald Johnson." Tying the analysis of conscience shocking to the second element of the test, the court found that too "much time passed between the initial decisions and the ultimate harm, " beginning with Berget's transfer to West Hall in 2004 and ending with Ronald's death in 2011. The only action considered by the court was DOC's decision to grant Berget a job as a recycling orderly on March 18, 2011. While acknowledging that the job offered low supervision and enabled Berget to move about more freely, the court also observed that Berget had worked in such a capacity in various other positions "for many years without creating a known threat of harm to anyone." Thus, the court held that there was insufficient evidence to overcome DOC's defense of qualified immunity on Johnson's § 1983 claim. The court granted summary judgment on Count 3 and remanded the remaining claims to state court.

         [¶12.] On appeal, the Eighth Circuit Court of Appeals affirmed. Estate of Johnson v. Weber, 785 F.3d 267, 273 (8th Cir. 2015). The Eighth Circuit closely examined whether Robert and Berget posed a risk of escape, noting that inmates in 2009 and 2010 relayed information to DOC indicating that Robert and Berget were planning an escape attempt. Id. at 270. However, the only evidence offered by Johnson that Robert and Berget also intended to murder a guard came from a media interview provided by Jesse Sondreal, who prosecuted Robert and Berget for Ronald's murder. Id. According to the Eighth Circuit, the information possessed by Sondreal "did not originate from any of the defendants, but rather came from the Department of Criminal Investigation." Id. Moreover, "Sondreal could not identify any details of the alleged escape and murder plot[.]" Id.

         [¶13.] The Eighth Circuit ultimately concluded that DOC's conduct did not shock the conscience. The Eighth Circuit observed that "Berget had worked as an orderly for many years without creating a known threat of harm to any correctional officer." Id. at 272. Additionally, DOC's decision to house Robert and Berget in West Hall despite its failure to follow certain procedures "[did] not shock the conscience, particularly in light of DOC policy allowing [the] Warden discretion in housing assignments." Id. at 273. While Robert and Berget had made escape attempts in the past and had "committed violent crimes before incarceration, " the Eighth Circuit highlighted the fact that "neither Robert nor Berget had committed a murder and neither Robert nor Berget had committed a violent act in prison or shown any propensity for prison violence." Id. The Eighth Circuit determined that Johnson failed to prove that "DOC's policies on Warden discretion . . . shock the conscience" or that "the Warden acted with deliberate indifference in his transfers of Robert and Berget." Id. The Eighth Circuit Court of Appeals therefore affirmed the federal circuit court's grant of summary judgment on Johnson's § 1983 claim.

         [¶14.] Upon remand to state court, DOC filed a motion for summary judgment on the remaining claims, which the circuit court granted. Johnson appeals the court's order for summary judgment on Counts 3, 4, and 6, raising three issues for our review:

1. Whether the circuit court erred by dismissing Count 4, the IIED claim, concluding that DOC's conduct was not extreme and outrageous in publishing the Incident Report.
2. Whether the circuit court erred by dismissing Count 6, the fraudulent misrepresentation claim, by holding that there were no genuine issues of material fact in dispute.
3. Whether this Court should recognize in Count 3 a private cause of action for violation of the Due Process Clause found in article VI, § 2 of the South Dakota Constitution for injuries resulting from the Incident Report.

         Standard ...


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