United States District Court, D. South Dakota, Western Division
MATTHEW C. KURTENBACH, a/k/a MATTHEW KURTENBACH, Plaintiff,
SOUTH DAKOTA ATTORNEY GENERAL MARTIN JACKLEY, SOUTH DAKOTA SECRETARY OF CORRECTIONS DENNY KAEMINGK, LINDSAY QUASNEY, JOHN WENANDE and DOUG CLARK, Defendants.
JEFFREY L. VIKEN, CHIEF JUDGE.
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.
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
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
Count 7: Retaliation for seeking a parole board meeting.
Id. at p. 17 (capitalization, bold and parentheses
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.
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
Kurtenbach acknowledges count 5 is barred by the
Heck 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.
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.
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.
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.
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
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
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.
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]).
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]).
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)).
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).
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.
court will now address each of plaintiff's remaining
1: USING PHONY “SUBPOENAS” TO SUBVERT
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 ¶
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).
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.
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).
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.
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).
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.
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)).
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.” 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)).
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)).
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).
argues that the trial judge's “decision was not a
final judgment. His decision was interlocutory in
nature.” Id. at p. 7.
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).
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.
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.” Id. at p. 3:15-16.
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.
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 ...