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Oglala Sioux Tribe v. Fleming

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

September 29, 2017

OGLALA SIOUX TRIBE and ROSEBUD SIOUX TRIBE, as parens patriae, to protect the rights of their tribal members; MADONNA PAPPAN, and LISA YOUNG, individually and on behalf of all other persons similarly situated, Plaintiffs,
v.
LISA FLEMING; MARK VARGO; HONORABLE CRAIG PFEIFLE; and LYNNE A. VALENTI, in their official capacities, Defendants.

          ORDER

          Jeffrey L. Viken, Chief Judge.

         INTRODUCTION

         Plaintiffs filed two motions for summary judgment against Lisa Fleming and Lynne Valenti, in their official capacities ("DSS Defendants"), together with statements of undisputed material facts and two legal memoranda. (Dockets 290, 291 & 294-97). The first summary judgment motion seeks judgment against the DSS Defendants for their alleged "inadequate training and supervision" of their staff in the Department of Social Services Division of Child Protection Services Offices in Region 1, Pennington County, South Dakota ("inadequate training and supervision claim"). (Docket 290 at p. 1). The second motion for summary judgment seeks judgment against the DSS Defendants for their alleged "failure to ensure that placement of Indian children end[s] when the reason for placement ends" ("failure to end placement claim"). (Docket 295).

         The DSS Defendants filed an objection to plaintiffs' motions together with a supporting affidavit. (Dockets 313 & 314). Defendants' objection contends plaintiffs' present motions for summary judgment address claims not included in the complaint and are therefore not properly before the court. (Docket 313 at p. 12). Plaintiffs filed a response in opposition to the objection. (Docket 334). The DSS Defendants filed a reply brief in support of their objection. (Docket 335).

         The DSS Defendants also filed extensive responses to both summary judgment motions, including responses to plaintiffs' statements of undisputed facts and two legal memoranda. (Dockets 316-19 & 326). Plaintiffs filed reply briefs in support of both motions. (Dockets 330 & 333).

         For the reasons stated below, the DSS Defendants' objection (Docket 313) is granted.

         ANALYSIS

         The DSS Defendants argue plaintiffs' two motions for summary judgment are improperly before the court because they constitute additional "claims not set forth in [the] Complaint." (Docket 313 at p. 2). Defendants assert plaintiffs' motion for summary judgment on the inadequate training and supervision claim includes two grounds not included in the failure to train claim in the complaint, namely:

[The DSS) Defendants have failed to adequately train their staff regarding how and when to return children to their homes; ard
[The DSS) Defendants have failed to adequately supervise their staff regarding how and when to return children to their homes.

Id. at p. 5. The DSS Defendants argue plaintiffs may not amend their complaint to incorporate these new claims through "a brief ... advocating summary judgment." Id. at p. 9 (references omitted). "In order to have these claims considered for summary judgment, " DSS Defendants submit "Plaintiffs should be required to seek to amend their [c]omplaint and include the allegations upon which they now seek summary judgment, as required by Rule 8(a)." Id. at p. 11.

         Plaintiffs assert the "[c]omplaint already contains an express claim of inadequate training and supervision and therefore there is no need to add another one." Id. at p. 5 (emphasis omitted). Plaintiffs contend that only during discovery on their failure to train claim did they "learn[] for the first time that the DSS Defendants had a policy of retaining children even after the reason fr placement given parents at the 48-hour hearing has ended." Id. at p. 8. Plaintiffs argue "[t]he only difference is that the new issue involves a situation that occurs shortly after the 48-hour hearing rather than at the 48-hour hearing. The two issues, however, raise the same claim: that parents are being denied notice of the reason for continued custody." Id. (emphasis omitted). "Because this claim is already in the [c]omplaint, " plaintiffs submit "there is no need ... to amend the [c]omplaint to add another one." Id.

         The court previously resolved in plaintiffs' favor counts I and II of the complaint. (Dockets 150, 217, 301, 302, 303 & 304). Those claims asserted all of the "defendants' policies, practices and procedures relating to the removal of Native American children from their homes during state court 48-hour hearings violate [25 U.S.C. § 1922] and the Due Process Clause of the Fourteenth Amendment." (Docket 150 at p. 8). All defendants appealed the court's earlier rulings. (Dockets 309, 312 & 321).

         The only remaining claim in plaintiffs' complaint requiring resolution is a failure to train claim. See Docket 1 ¶¶ 46, 48, 97 & 128. In an earlier order denying all of the defendants' motions to dismiss the complaint, the court addressed plaintiffs' failure to train claim. "The complaint ... alleges DSS defendants failed to train their staff on how to seek and secure for Indian parents the federal rights to which those parents are entitled and, as a result, Indian parents suffer irreparable injury." (Docket 69 at p. 23) (referencing Docket 1 at ¶¶ 46 & 48). "Because [the DSS Defendants] .... [do not] appear at the 48-hour proceedings personally, the claims made by plaintiffs relate to a 'failure to train' other DSS employees whom they supervise. To survive a motion to dismiss on a 'failure to train' claim, plaintiffs must show (1) the policymaker's training practices were inadequate, (2) the policymaker was deliberately indifferent to the rights of the plaintiffs, and (3) the training deficiencies cause constitutional deprivation." Id. (internal citation omitted). "Specifically, plaintiffs allege DSS defendants contribute to the plaintiffs' injuries by failing to provide a copy of the petition and ICWA affidavit to Indian parents prior to the 48-hour hearing, by adopting the unconstitutional practices of the circuit court during 48-hour ...


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