United States District Court, D. South Dakota, Western Division
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,
LISA FLEMING; MARK VARGO; HONORABLE CRAIG PFEIFLE; and LYNNE A. VALENTI, in their official capacities, Defendants.
Jeffrey L. Viken, Chief Judge.
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").
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).
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).
reasons stated below, the DSS Defendants' objection
(Docket 313) is granted.
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,
[The DSS) Defendants have failed to adequately train their
staff regarding how and when to return children to their
[The DSS) Defendants have failed to adequately supervise
their staff regarding how and when to return children to
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.
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."
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).
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