United States District Court, D. South Dakota, Southern Division
ORDER DISMISSING CASE
Lawrence L. Piersol, United States District Judge.
Artie Pawnee Leggins filed a pro se civil rights lawsuit
under 42 U.S.C. § 1983. Docket 1. Defendants now move to
dismiss Leggins' claims pursuant to Fed.R.Civ.P.
12(b)(1). Docket 32. Leggins did not resist or respond to
defendants' motion. Leggins moves to amend his complaint
and requests court appointed counsel. Dockets 27, 28 &
October 17, 2016, Leggins filed his original complaint.
Docket 1. The Court screened Leggins' complaint and found
that Leggins stated a First Amendment retaliation claim
against Sally Boyd and Levi Hofeldt. Docket 6. Boyd was
served May 30, 2018. Docket 31. Defendants contend Hofeldt
has not yet been properly served but did file a responsive
filing earlier lawsuits against Boyd and Hofeldt, Leggins
claims that Boyd and Hofeldt retaliated against him by
charging him with assaulting an officer, a charge Leggins
alleges was made without evidence. Docket 1 at 6. Leggins
concedes that he got into a fight with another inmate and
several correctional officers broke up the fight, but he
disputes any assault on an officer. See Docket 27 at
8. Leggins claims he was not provided written notice of the
5-3 write up dated August 26, 2006 or allowed to defend
himself before the disciplinary hearing; he was merely
punished. Id. at 5. Boyd allegedly told Leggins this
was done to teach him a lesson. Id. at 6. After the
incident, Leggins lost his employment opportunities at the
prison and his good time credits have been affected. Id.
Id. He alleges that he should currently be a
"trustee level" prisoner, but because this incident
affected his parole eligibility, he is not. Id.
Leggins alleges that officers continue to make comments and
threaten him because they believe he assaulted an officer.
Id. at 6.
and Hofeldt have both left their jobs at Mike Durfee State
Prison (MDSP). Boyd retired from MDSP on November 8, 2008.
Dockets 34 at 2 and 34-1. Hofeldt has not worked at MDSP
since May 6, 2010. Dockets 34-2 and 34-2.
STANDARD FOR 12(b)(1) MOTIONS
is a threshold question that should be decided at the outset
of litigation. Osborn v. United States, 918 F.2d
724, 729 (8th Cir.. 1990). "Plaintiffs have the burden
of establishing that jurisdiction exists."
Sisseton-Wahpeton Oyate v. U.S. Dep't of State,
659 F.Supp.2d 1071, 1077. Because a 12(b)(1) motion
challenges the court's power to hear the case, "the
trial court is free to weigh the evidence and satisfy itself
as to its power to hear the case." Osborn, 918
F.2d at 730. An inquiry into the historical facts underlying
a jurisdictional challenge based on a statute of limitations
is a factual challenge, so" 'no presumptive
truthfulness attaches to the plaintiffs
allegations.'" Spirit Lake Tribe v. North
Dakota, 262 F.3d 732 (8th Cir. 2001) (quoting
Osborn, 918 F.2d at 730). Therefore, the court may
consider facts beyond the allegations of the complaint
without converting the 12(b)(1) motion to a motion for
summary judgment. Id.; Deuser v. Vecera, 139 F.3d
1190, 1192 n. 3 (8th Cir. 1998).
Motion to Dismiss
argue that Leggins' retaliation claim must be dismissed
under Fed.R.Civ.P. 12(b)(1) for lack of subject matter
jurisdiction. Docket 33 at 3. Defendants argue that the
statute of limitations on Leggins' retaliation claim has
expired so die Court lacks subject matter jurisdiction over
the case. Id. at 4. Leggins did not respond to
statute of limitations for claims brought under 42 U.S.C.
§ 1983 is generally the applicable state law period for
personal injury torts." Strandlund v. Rowley,
532 F.3d 741, 746 (8th Cir. 2008) (citing City of Rancho
Palos Verdes, Cal. v. Abrams, 544 U.S. 133, 124 n.5
(2005)). Because 42 U.S.C. § 1983 does not contain a
specific statute of limitations, die United States Supreme
Court has instructed courts to apply die analogous state
statute of limitations. Bell v. Fowler, 99 F.3d 262,
265-66 (8th Cir. 1996) (citing Wilson v. Garcia, 471
U.S. 261, 266-68 (1985)). Under South Dakota law, "civil
rights actions must be brought within three years after die
alleged constitutional deprivation occurred or die action
will be barred." Id. at 266; SDCL 15-2-15.2.
filed his complaint on October 17, 2016. Docket 1. Thus, his
limitations period stretches back to October 17, 2013.
Defendants claim mat die alleged incident Leggins refers to
transpired at least ten years ago. Docket 33 at 6. In support
of their claim, defendants demonstrate that Boyd retired from
MDSP on November 8, 2008 and Hofeldt left MDSP on May 6,
2010. Docket 34 at 2. Because neither defendant worked at
MDSP within the limitations ...