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Kurtenbach v. Jackley

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

March 29, 2018





         Plaintiff Matthew Kurtenbach sues the above-captioned defendants alleging various claims under 42 U.S.C. § 1983. (Docket 15). The defendants filed a motion to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). (Docket 23). Plaintiff resists in part and agrees in part to defendants' motion. (Docket 31). For the reasons stated below, defendants' motion to dismiss is granted in part and denied in part.


         Plaintiff's amended complaint contains seven claims against the defendants. Those claims are:

Count 1: Using phony “subpoenas” to subvert constitutional protections. (Docket 15 at p. 3) (capitalization, bold and parentheses omitted);
Count 2: Unfettered state surveillance of individuals' pharmacy records. Id. at p. 6 (capitalization, bold and parentheses omitted);
Count 3: Increasing criminal sentences on the basis of facts neither admitted nor found by a jury. Id. at p. 8 (capitalization, bold and parentheses omitted);
Count 4: Jailing of parolees without a proper basis. Id. at p. 10 (capitalization, bold and parentheses omitted);
Count 5: Unauthorized revocation of parole. Id. at p. 13 (capitalization, bold and parentheses omitted);
Count 6: Delayed and denied preliminary revocation hearing. Id. at p. 15 (capitalization, bold and parentheses omitted); and
Count 7: Retaliation for seeking a parole board meeting. Id. at p. 17 (capitalization, bold and parentheses omitted).

         Defendants' motion to dismiss the entirety of the amended complaint is premised on Fed.R.Civ.P. 12(b)(6). (Docket 23). In the alternative, defendants ask the court to dismiss the official capacity claims against Attorney General Martin Jackley (“Attorney General Jackley”) and South Dakota Secretary of Corrections Denny Kaemingk (“Secretary Kaemingk”) and the individual, personal capacity claims against defendants Ms. Quasney, Mr. Wenande and Mr. Clark. Id.

         In response to defendants' motion to dismiss, Mr. Kurtenbach does not object to the dismissal of count 3. (Docket 31 at p. 31). Defendants' motion to dismiss count 3 will be granted.

         Mr. Kurtenbach acknowledges count 5 is barred by the Heck[1] doctrine, but asks the court to abstain from ruling on this cause of action until the underlying state court habeas proceeding is resolved. Id. at p. 35. The court will address count 5 as part of its analysis of defendants' motion to dismiss.

         Rule 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.

         “When ruling on a motion to dismiss under Rules 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. 1990).

         The Civil Rights Act provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

42 U.S.C. § 1983. “Section 1983 does not confer subject matter jurisdiction. The statute simply provides a means through which a claimant may seek a remedy in federal court for a constitutional tort when one is aggrieved by the act of a person acting under color of state law.” Jones v. United States, 16 F.3d 979, 981 (8th Cir. 1994).

         “The district court [is] required to evaluate [each defendant's] conduct individually. . . . Liability for damages for a federal constitutional tort is personal, so each defendant's conduct must be independently assessed. . . . Section 1983 does not sanction tort by association.” Heartland Academy Community Church v. Waddle, 595 F.3d 798, 805-06 (8th Cir. 2010) (internal citations omitted).

         Mr. Kurtenbach asserts claims against Attorney General Jackley in his official capacity seeking declaratory and injunctive relief. (Docket 15 ¶ 33(b) [count 1]; ¶ 47(b) [count 2]; ¶ 72(b) [count 4]; ¶ 85(b) [count 5]; ¶ 93(b) [count 6]; and ¶ 103(b) [count 7]). Mr. Kurtenbach makes no personal capacity claims against Attorney General Jackley.

         The amended complaint asserts claims against Secretary Kaemingk in his official capacity seeking declaratory and injunctive relief. (Docket 15 ¶ 47(b) [count 2]; ¶ 72(b) [count 4]; ¶ 85(b) [count 5]; ¶ 93(b) [count 6]; and ¶ 103(b) [count 7]). Mr. Kurtenbach makes no personal capacity claims against Secretary Kaemingk.

         Mr. Kurtenbach asserts one claim against Assistant Attorney General Lindsey Qausney (“AAG Quasney”) in both her official and personal capacities seeking money damages and injunctive relief. (Docket 15 ¶ 33(a) [count 1]). Plaintiff asserts two claims against South Dakota Division of Criminal Investigation Agent Wenande (“Agent Wenande”) in both his official and personal capacities seeking money damages and injunctive relief. (Docket 15 ¶ 47(a) [count 2]; and ¶ 72(a) [count 4]).

         The amended complaint asserts three claims against South Dakota Board of Pardons and Paroles Director Clark (“Director Clark”), in both his official and personal capacities, seeking money damages and injunctive relief. (Docket 15 ¶ 85(a) [count 5]; ¶ 93(a) [count 6] and ¶ 103(a) [count 7]).


         Before addressing plaintiff's claims against the defendants in their individual capacities, the court addresses Mr. Kurtenbach's claims against the defendants in their official capacities. “The Eleventh Amendment generally bars suits for damages against a state or state officials in their official capacities unless the state waives its sovereign immunity.” Christensen v. Quinn, 45 F.Supp.3d 1043, 1059 (D.S.D. 2014), reconsideration denied, Civ. No. 10-4128, 2014 WL 6471378 (D.S.D. Nov. 18, 2014) (citing Will v. Mich. Department of State Police, 491 U.S. 58, 66 (1989)). “A suit against a public employee in his or her official capacity is merely a suit against the public employer.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). “Furthermore, neither a state nor its officials acting in their official capacities are ‘persons' who may be sued for money damages under § 1983.” Christensen, 45 F.Supp.3d at 1059 (citing Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 617 (2002)). Finally, “respondeat superior or vicarious liability will not attach under § 1983.” Rutan v. State of South Dakota, No. CIV. 05-4070, 2005 WL 1398596, at *3 (D.S.D. June 14, 2005) (citing Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 778 (8th Cir. 2001)).

         Declaratory and prospective injunctive relief are available as remedies against a state officer in his official capacity. Pulliam v. Allen, 466 U.S. 522, 541 (1984). Immunities, i.e., absolute, prosecutorial or qualified immunity are not a bar “to plaintiff's action for injunctive and declaratory relief under Section 1983.” Timmerman v. Brown, 528 F.2d 811, 814 (4th Cir. 1975).

         In so far as Mr. Kurtenbach alleges defendants, AAG Quasney, Agent Wenande and Director Clark, violated his constitutional rights in their official capacities, the court finds the § 1983 claims for money damages are actually claims against the State of South Dakota. Johnson, 172 F.3d at 535. Accordingly, Mr. Kurtenbach's 1983 claims for money damages against the defendants in their official capacities are dismissed.

         The court will now address each of plaintiff's remaining claims.


         For purposes of resolution of defendants' Rule 12(b)(6) motion, the court accepts as true the factual allegations contained in the amended complaint and all reasonable inferences in favor of plaintiff. Braden, 588 F.3d at 594. In December 2013, Mr. Kurtenbach was on parole through the South Dakota Department of Corrections. (Docket 15 ¶ 14). Mr. Kurtenbach signed a Community Supervision Agreement. Id.; see also Docket 25-1 pp. 2-3. In early January 2014, Nathan Hower, Mr. Kurtenbach's parole officer, suspected he was attempting to obtain prescription narcotics illegally. (Dockets 15 ¶ 17 & 15-2 at p. 2). Parole Officer Hower's suspicion was based on the fact Mr. Kurtenbach visited the emergency room at the Rapid City Regional Hospital in Rapid City, South Dakota, twice on December 17, 2013. (Docket 15-2 at p. 2). Parole Officer Hower communicated his suspicions to Agent Wenande, who opened an investigation. (Docket 15 ¶ 18).

         As part of the investigation, on January 3, 2014, AAG Quasney issued three subpoenas duces tecum (“subpoenas”) to healthcare providers to obtain Mr. Kurtenbach's medical records. Id. ¶ 21; see also Docket 15-1 at pp. 2-4. The subpoenas were captioned “In the Matter of the Grand Jury Investigation into Criminal Activity” and were issued to Wal-Mart Pharmacy Store #10-3872 and two subpoenas were issued to Rapid City Regional Health. (Docket 15-1 at pp. 2-4) (capitalization omitted). One of the subpoenas was issued on the authority of a Meade County grand jury and the other two on the authority of a Pennington County grand jury. Id. All three subpoenas commanded the providers to appear at the Pennington County Courthouse and present the documents subpoenaed. Id. The subpoenas allowed each provider to deliver Mr. Kurtenbach's medical records to Agent Wenande at a telefax number or mailing address provided. Id. Each of the three providers provided Agent Wenande with Mr. Kurtenbach's medical records. (Docket 15-2 at p. 3).

         A Pennington County, South Dakota, grand jury indicted Mr. Kurtenbach with count 1: attempt to obtain possession of a controlled substance by theft, misrepresentation, forgery or fraud; count 2: attempt to obtain possession of a controlled substance by theft, misrepresentation, forgery or fraud; count 3: attempted possession of a controlled substance with the intent to distribute; and count 4: attempted possession of a controlled substance with the intent to distribute. (Docket 25-2 at pp. 2-5). The indictment was filed in Seventh Judicial Circuit Court, Pennington County, South Dakota, as Crim. No. 14-405. Id. at p. 2.

         In criminal case, Crim. No. 14-405, Mr. Kurtenbach filed a motion for sanctions seeking to prohibit the state at trial from using any of the information obtained through the three subpoenas. (Docket 15-2 at p. 2). In a memorandum opinion, on July 28, 2014, Seventh Circuit Judge Wally Eklund ruled “[a]ll three subpoenas were issued before a grand jury convened to consider evidence in the Defendant's case.” Id. at p. 5. The state trial judge concluded Mr. Kurtenbach had “a reasonable expectation of privacy in his medical and prescription records and therefore a protectable Fourth Amendment interest. The State's use of the three unsupervised investigative subpoenas duces tecum was beyond the scope of SDCL §§ 23A-14-1 and 23A-14-5.” Id. at p. 6. The trial court found “[t]he use of these unsupervised investigative subpoenas is widespread. . . . [T]he State admits that based on a brief survey, the State's Attorney's offices in Custer, Gregory, Lawrence, Meade, and Union Counties routinely issue subpoenas to obtain medical records in criminal cases.” Id. (internal reference and quotation marks omitted). As a remedy for the violation of Mr. Kurtenbach's Fourth Amendment rights, the trial court ruled: “[i]n light of the widespread use, the Court has determined that prohibiting the State from admitting into evidence, at the time of trial, the medical and pharmacy records as well as any evidence stemming from the collection of those records is an appropriate sanction in this case to deter future Fourth Amendment violations.” Id. Findings of facts and conclusions of law and an order were entered consistent with the memorandum opinion. Id. at pp. 7-14 and Docket 25-4 at p. 2).

         The amended complaint alleges AAG Quasney and the State violated Mr. Kurtenbach's constitutional right of privacy. (Docket 15 ¶ 29). Mr. Kurtenbach alleges “[u]pon information and belief, the State has made a practice of using invalid subpoenas for this purpose, and continues that practice.” Id. ¶ 30. He further alleges “[o]n information and belief, the Attorney General has failed to properly train and supervise his subordinates. . . . [T]he sort of violations described here have occurred frequently enough that the Attorney General knew or should have known they were happening, and that they were improper.” Id. ¶ 32.

         Mr. Kurtenbach seeks relief in the form of money damages against AAG Qausney in her individual capacity and an injunction against her in her official capacity. Id. ¶ 33(a). He also seeks declaratory and injunctive relief against Attorney General Jackley in his official capacity. Id. ¶ 33(b).

         AAG Qausney moves to dismiss count 1 on the basis of prosecutorial immunity. (Docket 24 at p. 5). She argues her conduct which is the subject of count 1 was “clearly directed at her while functioning as a prosecuting attorney on behalf of the State.” Id. at p. 15. As a prosecuting attorney, AAG Qausney argues “she is entitled to absolute immunity.” Id.

         In the alternative, AAG Qausney argues that if “not entitled to absolute immunity, she is entitled to qualified immunity.” Id. at p. 16 (referencing Malley v. Briggs, 475 U.S. 335, 341 (1986) and Saucier v. Katz, 533 U.S. 194, 201 (2001)). First, she contends her conduct did not violate Mr. Kurtenbach's constitutional rights. Id. at p. 17. Second, she asserts “there is no Eighth Circuit or U.S. Supreme Court precedent” which declares similar conduct as violative of the Fourth Amendment such that a “reasonable official would understand that such particular conduct violates the Fourth Amendment.” Id. at p. 17 (referencing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

         Mr. Kurtenbach counters AAG Qausney is not entitled to absolute immunity because there was no criminal prosecution pending at the time she issued the three subpoenas. (Docket 31 at p. 12). He argues the state trial court ruled AAG Qausney's use of the three “subpoenas violated both state law and the federal Constitution.”[2] Id. at p. 13 (referencing Docket 15-2 at p. 6). Based on that ruling, Mr. Kurtenbach asserts “issue preclusion” prevents AAG Qausney from “relitgation of that issue in a § 1983 action.” Id. at p. 14 (citing Simmons v O'Brien, 77 F.3d 1093, 1096 (8th Cir. 1996); Nance v Humane Society, No. 15-3512, 2016 WL 4136972, at *1 (8th Cir. Aug 4, 2016)).

         In rebuttal, AAG Qausney argues Mr. Kurtenbach is barred from asserting a Fourth Amendment claim because of his plea agreement in a separate criminal case, Crim. No. 14-725. (Docket 38 at p. 2) (referencing Docket 25-5). In exchange for Mr. Kurtenbach's guilty plea in Crim. No. 14-475, AAG Qausney argues Crim. No. 14-405 was dismissed with prejudice and the issue of the three subpoenas was resolved, because “the State would not appeal Judge Eklund's decision [in Crim. No. 14-405].” Id. at p. 3. Because of the plea agreement, AAG Qausney contends Mr. Kurtenbach lacks standing to assert a violation of the Fourth Amendment as he did not suffer “an injury in fact.” Id. at p. 4 (referencing Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982)).

         As a final defense to count 1, AAG Qausney asserts the doctrine of issue preclusion is not applicable because there was not “a full and reasonable opportunity to litigate” the state trial judge's ruling. (Docket 38 at pp. 5-6).

         She argues that the trial judge's “decision was not a final judgment. His decision was interlocutory in nature.” Id. at p. 7.

         GUILTY PLEA

         As a general rule, a plea of guilty in a state court criminal proceeding is not construed as a waiver of a defendant's Fourth Amendment claims under § 1983 in federal court. Haring v. Prosise, 462 U.S. 306, 323 (1983). “When a court accepts a defendant's guilty plea, there is no adjudication whatsoever of any issues that may subsequently be the basis of a § 1983 claim.” Id. at 322 n.11. A contrary “rule would require an otherwise unwilling party to try Fourth Amendment questions to the hilt and prevail in state court in order to preserve the mere possibility of later bringing a § 1983 claim in federal court.” Id. at 322 (internal citation, quotation marks and brackets omitted).

         On the other hand, “[t]he plea bargaining process necessarily exerts pressure on defendants to plead guilty and to abandon a series of fundamental rights, but we have repeatedly held that the government may encourage a guilty plea by offering substantial benefits in return for the plea.” United States v. Mezzanatto, 513 U.S. 196, 209-10 (1995) (internal citation and quotation marks omitted). “[A]bsent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of [a constitutional right] is valid and enforceable.” Id. at 210.

         During the change of plea hearing in Crim. No. 14-475, Judge Eklund engaged Mr. Kurtenbach in a colloquy regarding his constitutional rights prior to accepting the guilty plea. (Docket 25-5 at pp. 4:18-5:17). Mr. Kurtenbach agreed to waive his constitutional rights in Crim. No. 14-475 as part of the plea. Id. The decision to change his plea was “made after thoughtful reflection and a decision that [he] made of [his] own free will and accord.” Id. at p. 7:19. The only part of the plea agreement relevant to the present case was that “the Attorney General's Office would not pursue an appeal in File 14-405.”[3] Id. at p. 3:15-16.

         In Crim. No. 14-475 there was neither a discussion nor a waiver by Mr. Kurtenbach of his right to assert any violation of his constitutional rights in Crim. No. 14-405 through a subsequent state or federal civil action. The court finds that Mr. Kurtenbach's plea agreement did not prohibit him from asserting a § 1983 claim for the violation of his constitutional rights under the Fourth Amendment.

         The defendants' reply brief asserts Heck bars Mr. Kurtenbach's claims against AAG Qausney and Attorney General Jackley because “a state prisoner cannot use a § 1983 action to challenge his confinement.” (Docket 38 at p. 3) (referencing Skinner v. Switzer, 562 U.S. 521, 533 (2011) (quoting Heck, 512 U.S. at 487). “The gist of [Heck, 512 U.S. 477] is that section 1983 is not an appropriate vehicle for attacking the validity of a state conviction.” Wilson v. Lawrence County, Missouri, 154 F.3d 757, 761 (8th Cir. 1998). Mr. Kurtenbach is not asking the court to overturn his conviction in Crim. No. 14-475, but rather he is ...

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