United States District Court, D. South Dakota, Western Division
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE
accordance with this Court's Order issued on April 7,
2017 (doc. 190), the parties have submitted briefs regarding
the final policymaker for the City of Rapid in this case.
State law and the Rapid City Municipal Code reveal that the
Civic Center Board of Directors serve as the official with
the final policymaking authority. See SDCL
§§ 9-52-1, 9-52-2, 9-52-23; Rapid City Municipal
Ordinances Chap. 2.76. The parties agree that the Civic
Center Board is the final policymaker for the City regarding
argue that they are entitled to a Judgment of Dismissal on
the claims under 42 U.S.C. § 1983 because Soltesz failed
to produce evidence at trial establishing that the Civic
Center Board took any action with respect to Soltesz. (Doc.
194 at 2, 13.) But Soltesz testified at trial that he was
told there was going to be a board meeting on February 8,
2011 involving the decision. Trial Transcript [hereinafter
"TT"] 123:19-23. Soltesz received a letter from the
general manager of the Civic Center on February 8, 2011,
advising him that his lease was terminated; the City Attorney
and the Civic Center Board President were copied on the
letter. Trial Exhibit 2; Complaint Attachment 2. Soltesz
argued that this evidence creates an inference that the Civic
Center Board was involved in the decision to terminate his
lease. TT 493:8-24. The district court commented on this
evidence after Defendants moved for a judgment as a matter of
law on the § 1983 claims:
Mr. Soltesz was examined on direct and cross about
conversations with Mr. Maliske. The testimony from Mr.
Soltesz, as I recall it - the jury will recall it for itself
- was that a meeting was to be held on February 8, 2011, and
Mr. Maliske's conversation with Mr. Soltesz is in
evidence, it's been subject to direct and cross. It's
either direct evidence that there was a meeting on February
8th or there's an inference that there was.
Followed by Plaintiffs Exhibit 2, the February 8th
termination of lease letter written by Brian Maliske as a
general manager of the Rushmore Plaza Civic Center, copied to
City attorney Jason Green and Eddie Rykpema, the Rushmore
Plaza Civic Center board president. That termination of lease
letter is dated February 8, 2011.
So I can't weigh the evidence or draw an inference on the
state of the factual record on this matter and deny the
defendants' motion for judgment as a matter of law on the
Section 1983 claims of plaintiff.
TT 443:22-25, 444:1-10. Defendants are not entitled to
dismissal of the § 1983 claims because Soltesz has some
evidence to support his position that the Civic Center Board
was involved in the decision to terminate his lease. As the
district court said, "credibility determinations, the
weighing of evidence and the drawing of legitimate inferences
from the facts are jury functions not those of a judge."
this Court is not free to deviate from the Eighth
Circuit's mandate by dismissing the § 1983 claims.
On appeal, the Eighth Circuit concluded that "[a] final
policymaker may have deprived Soltesz of his constitutional
rights in this case." Soltesz v. Rushmore Plaza
Civic Center,847 F.3d 941, 948 (8th Cir. 2017). The
Court discussed how a final policymaker can create municipal
liability not only by their own actions, but also by
delegating policymaking authority to a subordinate or by
ratifying the actions of a subordinate, id. at 946,
and ratification is a question of fact for the jury,
id. at 947. Finally, the Eighth Circuit directed the
district court on remand to identify the final policymaker as
a matter of law prior to trial, and to hold a new trial.
See Id. at 947-48. The necessary implication of the
Eighth Circuit's opinion is that, if the district court
concludes on remand that the Civic Center Board is the final
policymaker, a jury should decide on retrial whether the
Civic Center Board was involved in the decision to terminate
Soltesz's lease, delegated policymaking authority, or
ratified the actions of a subordinate. In order to comply
with the Eighth Circuit's mandate, it is necessary to
hold a second trial where the jury is informed that the Civic
Center Board is the final policymaker and then allow the jury
to weigh the evidence, determine credibility and draw
legitimate inferences regarding the Board's involvement,
or lack thereof, in the decision to terminate Soltesz's
lease. See, e.g., Houghton v. McDonnell Douglas
Corp.,627 F.2d 858, 865 (8th Cir. 1980) (quoting
Thornton v. Carter,109 F.2d 316, 320 (8th Cir.
1940)) (holding that district court must construe the
appellate court's opinion in its entirety and "is
without power to do anything which is contrary to ...