United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Rudy Stanko filed a multi-count complaint against the
defendants under the Civil Rights Act, 42 U.S.C. § 1983,
and state law. (Docket 1). The named defendants all filed
motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) or
12(b)(6). (Dockets 9, 12 & 15). For the reasons stated
below, defendants' motions to dismiss are granted.
South Dakota Highway Patrol seeks dismissal from the
complaint pursuant to Fed.R.Civ.P. 12(b)(1). (Docket 9). The
remaining defendants seek dismissal on the basis of
Fed.R.Civ.P. 12(b)(6). (Dockets 9, 12 & 15).
RULE 12(b)(1) MOTION TO DISMISS
provides in part that “a party may assert the following
defenses by motion: . . . lack of subject-matter jurisdiction
. . . .” Fed.R.Civ.P. 12(b)(1). “In order to
properly dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1), the complaint must be successfully
challenged on its face or on the factual truthfulness of its
averments.” Titus v. Sullivan, 4 F.3d 590, 593
(8th Cir. 1993) (internal citation omitted). “In a
facial challenge to jurisdiction, all of the factual
allegations concerning jurisdiction are presumed to be true
and the motion [to dismiss] is successful if the plaintiff
fails to allege an element necessary for subject matter
jurisdiction.” Id. (internal citation
omitted). While considering a Rule 12(b)(1) motion to dismiss
for lack of subject matter jurisdiction the court must
“accept all factual allegations in the pleadings as
true and view them in the light most favorable to the
nonmoving party.” Great Rivers Habitat Alliance v.
Federal Emergency Management Agency, 615 F.3d 985, 988
(8th Cir. 2010). “[T]he tenet that a court must accept
as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009).
burden of proving federal jurisdiction, however, is on the
party seeking to establish it, and this burden may not be
shifted to the other party.” Great Rivers Habitat
Alliance, 615 F.3d at 988 (internal quotation marks and
brackets omitted). “The burden of establishing that a
cause of action lies within the limited jurisdiction of the
federal courts is on the party asserting jurisdiction . . .
.” Arkansas Blue Cross & Blue Shield v. Little
Rock Cardiology Clinic, P.A., 551 F.3d 812, 816 (8th
South Dakota Highway Patrol seeks dismissal because, as a
division within the South Dakota Department of Public Safety,
it and the State of South Dakota are protected from suit by
the Eleventh Amendment. (Docket 10 at pp. 7-8). The Highway
Patrol also argues it is not a “ ‘person'
amenable to suit brought pursuant to 42 U.S.C. §
1983.” Id. at p. 7. Plaintiff's responsive
brief does not specifically address the propriety of the Rule
12(b)(1) motion. (Docket 17).
issues, whether they involve questions of law or of fact, are
for the court to decide.” Osborn v. United
States, 918 F.2d 724, 729 (8th Cir. 1990). “As the
[United States] Supreme Court remind[s] us, ‘a State is
not a ‘person' against whom a § 1983 claim for
money damages might be asserted.' ” McLean v.
Gordon, 548 F.3d 613, 618 (8th Cir. 2008) (citing
Lapides v. Bd. of Regents, 535 U.S. 613, 617
(2002)). “[T]he Eleventh Amendment bars suit against
the state or state officials acting in their official
capacity.” Morstad v. Department of Corrections and
Rehabilitation, 147 F.3d 741, 743 (8th Cir. 1998)
(referencing Kentucky v. Graham, 473 U.S. 159, 169
(1985)). A suit will be allowed to proceed, however, if the
state has waived immunity. See id. at 744. The State
has not waived its immunity to suit under the Eleventh
Amendment. The court grants defendants' motion as it
relates to the South Dakota Highway Patrol. (Docket 9).
Plaintiff's complaint against the South Dakota Highway
Patrol is dismissed under Rule 12(b)(1).
RULE 12(b)(6) MOTION TO DISMISS
12(b)(6) provides for dismissal if the plaintiff fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). In evaluating the defendants' Rule 12(b)(6)
motion, the court accepts as true all of the factual
allegations contained in plaintiff's complaint and grants
all reasonable inferences in favor of plaintiff as the
nonmoving party. Braden v. Wal-Mart Stores, Inc.,
588 F.3d 585, 594 (8th Cir. 2009) (“a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.' ”) (citing Ashcroft v. Iqbal, 556
U.S. 662, 663 (2009). See also Crooks v. Lynch, 557
F.3d 846, 848 (8th Cir. 2009) (the court must review “a
Rule 12(b)(6) motion to dismiss for failure to state a claim,
accepting the facts alleged in the complaint as true and
granting all reasonable inferences in favor of the plaintiff,
the nonmoving party.”) (brackets omitted). “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
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do[.]” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). “[O]nly a complaint that states a plausible
claim for relief survives a motion to dismiss.”
Iqbal, 556 U.S. at 679.
are not required to accept as true legal conclusions
“couched as . . . factual allegation[s]” in the
complaint. Id. at 678. “[A] complaint must
allege ‘more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.' ” Torti v. Hoag, 868 F.3d
666, 671 (8th Cir. 2017) (quoting Twombly, 550 U.S.
ruling on a motion to dismiss under Rule 12(b)(6) . . . a
district court generally may not consider materials outside
the pleadings. . . . It may, however, consider some public
records, materials that do not contradict the complaint, or
materials that are necessarily embraced by the
pleadings.” Noble Systems Corp. v. Alorica Central,
LLC, 543 F.3d 978, 982 (8th Cir. 2008) (internal
citation and quotation marks omitted). The court may also
consider matters in the public record of which the court may
take judicial notice. Tellabs, Inc. v. Makor Issues and
Rights, LTD., 551 U.S. 308, 322 (2007).
“Jurisdictional issues, whether they involve questions
of law or of fact, are for the court to decide.”
Osborn v. United States, 918 F.2d 724, 729 (8th Cir.
applying these principles, the court must construe
plaintiff's pro se complaint liberally. See
Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). This
means “that if the essence of an allegation is
discernible, even though it is not pleaded with legal nicety,
then the district court should construe the complaint in a
way that permits the layperson's claim to be considered
within the proper legal framework.” Jackson v.
Nixon, 747 F.3d 537, 544 (8th Cir. 2014) (internal
quotation marks omitted). The complaint “still must
allege sufficient facts to support the claims
advanced.” Stone, 364 F.3d at 914.
complaint contains five claims against the defendants. Those
Count 1: Violation of plaintiff's Fourth Amendment right
against unreasonable seizures. (Docket 1 at p. 8);
Count 3: Violation of plaintiff's Fourteenth Amendment
rights to due process. Id.;
Count 6: Tort claims for violations of plaintiff's rights
under the full faith and credit clause of Article IV of the
Constitution of the United States. Id. at p. 9;
Count 7: Tort claims for violations of federal and state law.
Id. at p. 10; and
Count 8: A tort claim for violation of the common law offense
of theft. Id. at p. 10.
following factual summary is gleaned from the allegations of
the complaint. On March 20, 2017, Mr. Kemerling was driving a
livestock truck on State Highway 34 near Whitewood, South
Dakota. (Docket 1 ¶¶ 18 & 30). South Dakota
State Highway Patrol Trooper Moser stopped the vehicle.
Id. ¶ 19. Mr. Kemerling was instructed to drive
to a nearby commercial parking lot so the truck could be
weighed with a set of portable scales. Id. ¶
24. Trooper Moser claimed the gross weight of the truck and
its contents was over 80, 000 pounds. Id. ¶ 36.
Mr. Stanko alleges the truck was not overweight because its
gross weight was less than 85, 500 pounds. Id.
¶¶ 27-28. Trooper Moser “tried to extort $700
from . . . Stanko by setting the bail on the truck driver,
impound[ing] his truck, and tak[ing] his driver to
jail.” Id. ¶ 40. Trooper Moser,
“[w]ithout obtaining a probable cause warrant to seize
the truck and livestock . . . hired truck driver and
defendant Ryan Talley to seize and stole [sic] . . .
Stanko's truck and cattle.” Id. ¶ 45.
Trooper Moser instructed Mr. Talley that “the cattle to
[sic] be hauled to St. Onge livestock and to be sold.”
Id. ¶ 46.
Meade County Jail in Sturgis, South Dakota, Jailer Monte
Droppers “accepted . . . Kemerling without a
constitutional probable cause oath taken of facts before a
Circuit/Magistrate Judge.” Id. ¶ 44. Mr.
Stanko went to the jail and posted a $565 bond to get Mr.
Kemerling out of jail. Id. ¶ 47. When Mr.
Stanko asked for the “probable cause oath to arrest and
jail his driver, ” Jailer Dropper said “that
neither Moser ...