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Danielson v. Huether

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

December 19, 2018

BRUCE DANIELSON, Plaintiff,
v.
MIKE HUETHER, DAVID PFEIFLE, MARTY JACKLEY, HEATHER HITTERDAL, CITY OF SIOUX FALLS, STATE OF SOUTH DAKOTA, JOHN DOE, Defendants.

          OPINION AND ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.

         Plaintiff Bruce Danielson, proceeding pro se, sued the State of South Dakota, South Dakota's Attorney General Marty Jackley, the City of Sioux Falls, the City's former mayor Mike Huether, and City employees David Pfeifle and Heather Hitterdal (collectively "the Defendants"). Doc. 1. Danielson alleges that the Defendants violated 42 U.S.C. § 1983, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, and state law. Doc 1. The Defendants have moved to dismiss all of Danielson's claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Doc. 11. For the reasons explained below, this Court grants in part and denies in part Defendants' motion to dismiss.

         I. Facts

         A district court considering a motion to dismiss under Rule 12(b)(6) usually draws the facts from the complaint, documents that are embraced by the complaint, matters of public record, and items subject to judicial notice. See Dittmer Props.. L.P. v. FDIC, 708 F.3d 1011, 1021 (8th Cir. 2013). Here, Danielson has requested leave to amend his complaint before dismissal with prejudice and has submitted an "Appendix of Proposed Supplemental Pleading" in support of this request. Doc. 18 at 32-53. He states that the "exemplar proposed amendments" in the appendix "are intended to illustrate the detail which is known and can be pleaded as required." Doc. 18 at 5; see also Doc. 18 at 26 (referring to the appendix as his "proposed amendments"). The District of South Dakota's Local Rules state that "any party moving to amend a pleading must attach a copy of the proposed amended pleading to its motion to amend with the proposed changes highlighted or underlined so that they may be easily identified." D.S.D. Civ. LR 15.1. Although Danielson has not complied with the local rules for filing an amended complaint, this Court will consider the allegations in the appendix along with those in the complaint when deciding whether Danielson has stated a claim under Rule 12(b)(6). See Pratt v. Corrs. Corp. of Am., 124 Fed.Appx. 465, 466 (8th Cir. 2005) (per curiam); Anthony v. Runyon, 76 F.3d 210, 214 (8th Cir. 1996).[1]

         Danielson, a resident of Sioux Falls, is a long-time advocate for open government and public access to government information. Doc. 1 at ¶ 30. He participates in Sioux Falls City Council meetings and frequently criticized Huether's conduct as mayor. Danielson contributes articles and videos of public events to www.southdacola.com, a blog operated by Scott Ehrisman. Doc. 1 at ¶¶ 31-32. Ehrisman uses the blog to write about local politics and promote government transparency. Doc. 1 at ¶¶ 32, 50.

         Although Danielson's allegations against the Defendants are wide-ranging, the dominant theme is that Huether used his power as mayor to retaliate against Danielson for criticizing him and investigating his conduct. According to Danielson, Huether had him arrested in July 2014 to prevent him from testifying at a Sioux Falls City Council meeting, Doc. 1 at ¶ 95; Doc. 18 at 32-36; instigated his prosecution in September 2014, Doc. 1 at ¶ 96; Doc. 18 at 37; attempted to intimidate him after he spoke at City Council meetings, Doc. 1 at ¶¶ 80-84, and refused to treat him like other members of the media when he was collecting information for the southdacola blog, Doc. 1 at ¶ 98. Danielson also claims that Huether struck him in the back of the head during an April 2015 City meeting, causing damage to his teeth, head, and neck. Doc. 1 at ¶¶ 33-34. Danielson alleges multiple conspiracies by the Defendants, including a conspiracy between Huether and Jackley to cover-up Huether's assault of Danielson and a conspiracy to use Huether's power as mayor to create favorable investments opportunities for Huether's family.

         Danielson alleges that the Defendants violated § 1983, RICO, and state law. He is suing Huether, Jackley, Pfeifle, and Hitterdal in both their official and individual capacities, and requests punitive damages, compensatory damages, and attorney's fees from all the Defendants.

         II. Standard of Review

         On a motion to dismiss under Rule 12(b)(6), courts must accept a plaintiffs factual allegations as true and construe all inferences in the plaintiffs favor, but need not accept a plaintiffs legal conclusions. Retro Television Network. Inc. v. Luken Commc'ns, LLC, 696 F.3d 766, 768-69 (8th Cir. 2012). To survive a motion to dismiss for failure to state a claim, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Although detailed factual allegations are unnecessary, the plaintiff must plead enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," Iqbal, 556 U.S. at 678, "even if it strikes a savvy judge that actual proof of those facts is improbable, and 'that a recovery is very remote and unlikely, '" Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes. 416 U.S. 232, 236 (1974)). Still, "conclusory statements" and "naked assertion[s] devoid of further factual enhancement" do not satisfy the plausibility standard, Iqbal, 556 U.S. at 678 (alteration in original) (citation and internal marks omitted).

         The Eighth Circuit requires district courts to construe pro se complaints liberally. 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." Id. at 915. Importantly, however, this rule of liberal construction does not excuse a pro se plaintiff from alleging enough facts to support his claims. Id. at 914. That is, even though a plaintiff is proceeding pro se, the district court will not "assume facts that are not alleged, just because an additional factual allegation would have formed a stronger complaint." Id. At 915.

         III. Analysis

         A. Section 1983 Claims

         Section 1983 provides a cause of action against any "person" who, acting "under color of state law, deprives the plaintiff of "rights, privileges, or immunities secured by the Constitution" or granted by federal statute. 42 U.S.C. § 1983. Defendants construe Danielson's complaint as alleging four claims under § 1983: a First Amendment retaliation claim, a First Amendment claim based on the failure to treat Danielson like other members of the press, a § 1983 civil conspiracy claim, and a claim against the City of Sioux Falls under Monell v. Department of Social Services, 436 U.S. 658 (1978). Danielson appears to agree that these are the § 1983 claims he is bringing, although he disagrees with the Defendants about the scope of some of his claims and what he must show to succeed on them. Defendants argue that Danielson's § 1983 claims should be dismissed because the Eleventh Amendment bars any claims against the State of South Dakota and Jackley in his official capacity; prosecutorial and qualified immunity bar any claims against Jackley in his individual capacity; and all of Danielson's allegations fail to state a claim under Rule 12(b)(6). This Court addresses these arguments in turn.

         1. Claims against the State of South Dakota and Jackley in his Official Capacity

         Danielson's claims against the State of South Dakota and claims for damages against Jackley in his official capacity must be dismissed. First, § 1983 only provides a cause of action against a "person" who, acting under the color of state law, deprives another of his or her federal constitutional or statutory rights. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). The Supreme Court in Will held that "neither a State nor its officials acting in their official capacities are 'persons' under § 1983" when sued for money damages. Id. Section 1983 therefore does not allow Danielson to sue the State of South Dakota or Jackley in his official capacity for damages. Id; see also Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n.24 (1997) ("State officers in their official capacities, like States themselves, are not amenable to suit for damages under § 1983."). Second, absent consent by the state or congressional abrogation of immunity, the Eleventh Amendment generally bars federal-court lawsuits seeking monetary damages from states or individual state officers in their official capacities. Will, 491 U.S. at 66; Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Trevelen v. Univ. of Minn., 73 F.3d 816, 818 (8th Cir. 1996). Section 1983 did not abrogate South Dakota's Eleventh Amendment immunity, Quern v. Jordan, 440 U.S. 332, 345 (1979), and South Dakota and Jackley have raised Eleventh Amendment immunity as a defense in this case. Danielson argues, however, that South Dakota has consented to suit under SDCL § 21-32-16, which provides:

To the extent such liability insurance is purchased pursuant to § 21-32-15 and to the extent coverage is afforded thereunder, the state shall be deemed to have waived the common law doctrine of sovereign immunity and consented to suit in the same manner that any other party may be sued.

SDCL § 21-32-16. But as the State of South Dakota made clear in an affidavit and an attached agreement, neither it nor any of its agencies have purchased liability insurance or participate in a risk-sharing pool that provides coverage to the State itself or to any of its agencies. Doc. 20 at ¶ 5; see also Balleeooven v. Brownson, 4:14-CV-04186-KES, 2016 WL 5794719, at *3 (D.S.D. Sept. 30, 2016) (holding that SDCL § 21-32-16 did not waive the Eleventh Amendment immunity of two state agencies). Section 21-32-16 therefore does not waive South Dakota's immunity for suits like Danielson's seeking money damages.

         2. Individual Capacity Claims Against Jackley

         Danielson's claims against Jackley concern an alleged conspiracy to cover-up Huether's assault of Danielson at the April 2015 City meeting. Danielson submitted a "formal criminal complaint" to .the South Dakota Division of Criminal Investigation (DCI) alleging that Huether had assaulted him during the meeting. Doc. 1 at ¶¶ 36-37. According to Danielson, Jackley, at the request of Huether and others, stopped the DCI's investigation of Danielson's complaint before the DCI could prove that the assault occurred. Doc. 1 at ¶¶ 39-44. Danielson alleges "that there was a conspiracy' between Huether, Pfeifle and Jackley where Jackley was persuaded to help Huether cover-up his assault on Danielson." Doc. 18 at 48.

         Prosecutors like Jackley who are sued under § 1983 may be entitled to either absolute or qualified immunity. Kalina v. Fletcher, 522 U.S. 118, 123-26 (1997). The type of immunity available depends on the function the prosecutor was performing when the alleged misconduct occurred. Id. at 127. Prosecutors have absolute immunity for actions "intimately associated with the judicial phase of the criminal process," Imbler v. Pachtman, 424 U.S. 409, 430 (1976), including the decision to prosecute a case, id. at 431 n.33, the decision not to prosecute a case, Botello v. Gammick, 413 F.3d 971, 976 (9th Cir. 2005); Doe v. Phillips, 81 F.3d 1204, 1209 (2d Cir. 1996), and the presentation of evidence at trial, Imbler, 424 U.S. at 431 n.33. By contrast, prosecutors only have qualified immunity for the performance of investigative or administrative functions unrelated to trial preparation. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

         Absolute immunity applies to Jackley's decision not to prosecute Huether. Danielson's argument to the contrary misreads Buckley. The Supreme Court in Buckley held that qualified immunity did not protect a prosecutor who fabricated evidence during the preliminary investigation of an unsolved crime. Id. at 275. In reaching this conclusion, the Supreme Court stated that "[a] prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested." Id. At 274. Danielson argues that this sentence from Buckley means that Jackley is not entitled to absolute immunity unless he had probable cause to arrest Huether for assault at the time he allegedly halted the DCI's investigation of Danielson's complaint. As the Supreme Court clarified in a footnote in Buckley, however, the line between absolute and qualified immunity turns on the function the prosecutor is performing rather than the point at which the prosecutor decides there is probable cause. Id. at 274 n.5. The Court explained that a prosecutor's decision to indict is protected by absolute immunity, "whether he has probable cause or not." Id. Because Jackley's decision not to prosecute Huether was intimately associated with the judicial process, it is protected by absolute immunity, regardless of any question about probable cause.

         Danielson and Defendants agree that Jackley is only entitled to qualified immunity when acting in an administrative or investigatory capacity. Danielson claims that Jackley acted as an administrator or investigator when he allegedly told the DCI to stop investigating Danielson's complaint. "Qualified immunity shields a government official from liability in a § 1983 action unless the official's conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known." Partlow v. Stadler, 774 F.3d 497, 501 (8th Cir. 2014). Courts use a two-step inquiry to determine whether qualified immunity applies: "(1) whether the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the defendant's alleged misconduct." Id. "Government officials are entitled to qualified immunity unless both of these questions are answered affirmatively." Greenman v. lessen, 787 F.3d 882, 887 (8th Cir. 2015) (cleaned up).

         Danielson argues that qualified immunity does not apply because Jackley should have known that covering up the April 2015 assault violated a clearly established right. As explained below, however, Danielson has not adequately alleged that Jackley conspired with others to conceal the alleged assault. Thus, this Court need not decide whether Jackley is entitled to qualified immunity. Danielson's claims against Jackley are all dismissed.[2]

         3. First Amendment Retaliation

         The First Amendment generally bars government officials from retaliating against an individual for exercising his right to free speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). To state a First Amendment retaliation claim, Danielson must show: (1) that he engaged in activity protected by the First Amendment; (2) that the Defendants took adverse action against him that would chill a person of ordinary firmness from continuing the activity; and (3) that the adverse action was motivated at least in part by Danielson's protected activity. Bennie v. Munn, 822 F.3d 392, 397 (8th Cir. 2016); Greenman, 787 F.3d at 891: see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

         Danielson alleges four types of retaliation, the first being that Huether assaulted him during the April 2015 City meeting. Doc. 1 at ¶ 33. Danielson asserts that this assault was in retaliation for exercising his First Amendment rights and that Huether intended to deter him from making further reports about Huether's conduct. Doc. 1 at¶35. Defendants contend that Danielson has failed to state a claim because he has not identified what constitutional activity prompted the assault. True, the portion of Danielson's complaint discussing the alleged assault does not specify what conduct motivated Huether to retaliate against Danielson, Doc. ¶¶ 33-35, and some of the protected activity Danielson claims he engaged in occurred after the alleged April 2015 assault, Doc, 1 at ¶¶ 80-84. At this stage, however, Danielson's complaint "should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible." Braden v. Wal-Mart Stores. Inc., 588 F.3d 585, 594 (8th Cir. 2009). And as Danielson tells it, he and Huether had a significant history by April 2015. Danielson alleges that he filed an ethics complaint against Huether in late March 2014 claiming that Huether was using City funds to advocate for issues he supported and campaign for reelection. Doc. 1 at ¶ 90. This complaint resulted in a hearing before the ethics board, Doc. 1 at ¶ 91, and Danielson alleges that it made Huether angry at him, Doc. 18 at 38. Danielson also alleges that Huether and others orchestrated his arrest in July 2014 to prevent him from testifying before the City Council about the events center. Doc. 1 at¶¶ 95-96; Doc. 18 at 33, 37. Danielson further alleges, albeit without providing specific dates, that he worked during Huether's tenure as mayor to "publicize" the benefits Huether's family was receiving from Huether's official actions. Doc. 1 at ¶ 117. The First Amendment protects Danielson's ethics complaint and criticisms of Huether. See Williams v. City of Carl Junction, 480 F.3d 871, 874 (8th Cir. 2007) ("The criticism of public officials lies at the heart of speech protected by the First Amendment. .. ."). A reasonable reading of Danielson's, entire complaint is that Huether assaulted him for filing the ethics complaint and otherwise criticizing Huether.

         As to the second element of a First Amendment retaliation claim, this Court must determine whether it is plausible that Huether striking Danielson hard enough supposedly to damage his teeth, head, and neck would deter a person of ordinary firmness from continuing to criticize Huether. This second element is objective: "the question is not whether the plaintiff himself was deterred, though how plaintiff acted might be evidence of what a reasonable person would have done." Scheffler v. Molin, 743 F.3d 619, 621 (8th Cir. 2014) (cleaned up). When applying the ordinary firmness test, courts should be "mindful" that the "effect on freedom of speech may be small, but since there is no justification for harassing people for exercising their constitutional rights it need not be great in order to be actionable." Garcia v. City of Trenton. 348 F.3d 726, 729 (8th Cir. 2003) (citation omitted). This Court has little trouble concluding that the assault alleged by Danielson would deter an ordinary person from further exercising his First Amendment Rights. See Coady v. Steil, 187 F.3d 727, 734 (7th Cir. 1999) ("We think it clear that being punched in the face would deter anyone from exercising his or her First Amendment rights.").

         This leaves the last element, which requires Danielson to show a causal connection between the alleged assault and his protected activity. Whether a causal connection exists is "generally a jury question." Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004). A plaintiff may demonstrate a causal connection through circumstantial evidence, such as unusually suggestive timing for the adverse action. Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 986 (8th Cir, 2011). Here, over a year passed between Danielson filing the ethics complaint and Huether allegedly assaulting Danielson. This gap between protected activity and retaliation could make showing causation difficult if Danielson were suing Huether for firing him or taking some other action that could have a lawful explanation. See Heaton v. The Weitz Co., Inc., 534 F.3d 882, 888 (8th Cir. 2008) ("[T]he passage of time between events does not by itself foreclose a claim of retaliation; rather, it weakens the inference of retaliation that arises when a retaliatory act occurs shortly after a complaint.") (cleaned up). Under the facts Danielson has alleged, however, Huether wanting to retaliate against Danielson for filing the ethics complaint and otherwise criticizing him is the only plausible explanation for striking Danielson in the back of the head. Danielson has adequately pleaded a First Amendment retaliation claim based on the alleged assault.[3]

         Danielson's next claims are that his arrest and prosecution in 2014 were retaliation for exercising his First Amendment rights. Doc. 1 at ¶¶ 95-97. He alleges that Huether and certain "subordinate prosecutors" orchestrated his July 2014 arrest to prevent him from providing his "expert" opinion at a City Council meeting. Doc. 18 at 32-33, 37; Doc. 1 at ¶ 95. Danielson planned to testify about the inadequacies of the metal siding Huether advocated using on the events center. Doc. 18 at 32-33; Doc. 1 at ¶ 95. According to Danielson, he was arrested mere hours before the City Council meeting at which he was to testify and was released shortly after the meeting ended. Doc. 18 at 34. Paul Bengford, a prosecutor who Danielson claims was a "subordinate" of Huether, issued the warrant for Danielson's arrest. Doc. 18 at 33. Danielson provides almost no information about the basis for his arrest, other than alleging that he was "arrested for not paying civil fees and based on convictions developed using the process which was invalidated in Daily v. City of Sioux Falls; 2001 S.D. 48 ten years prior to his arrest," Doc. 18 at 36. Danielson alleges that the City eventually dropped the charges for which he was arrested and relied on different charges to prosecute him in September 2014. Doc. 18 at 35; see also Doc. 18 at 18. According to Danielson, the September prosecution was for having nuisances in his yard and a judge acquitted him of all charges. Doc. 18 at 37; Doc. 1 at ¶ 96.

         Defendants argue that Danielson has not stated a claim for retaliatory prosecution because he failed to allege the absence of probable cause for the underlying charges or that Huether caused the prosecution. The Defendants rely on the Supreme Court's decision in Hartman and the Eighth Circuit's decision in Williams for support. The Supreme Court in Hartman held that a plaintiff asserting a First Amendment claim of retaliatory prosecution must plead and prove the absence of probable cause for the underlying charge. 547 U.S. at 263-66. The Supreme Court offered two main reasons for its holding: (1) evidence showing probable cause or its absence will be highly probative of retaliatory animus; and (2) showing a causal link between retaliatory animus and the plaintiffs injury in a retaliatory prosecution case is "usually more complex than it is in other retaliation cases," where the government official bearing the animus also took the adverse action. Id. at 261. As to the second reason, the Supreme Court explained that prosecutors have absolute immunity from suits for filing charges, so the defendant in a retaliatory prosecution case will typically be a nonprosecuting government official. Id. at 261-62. Thus, the plaintiff in a retaliatory-prosecution case must show not only that the nonprosecuting official "acted in retaliation," but also that the official "induced the prosecutor to bring charges that would not have been initiated without his urging." Id. at 262. The Supreme Court concluded that requiring a plaintiff to show the absence of probable cause would "bridge the gap between the nonprosecuting government agent's motive and the prosecutor's action." Id. at 263; see also id. at 259 ("It is... the need to prove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases, that provides the strongest justification for the no-probable-cause requirement ....").

         Similar to this case, the plaintiff in Williams claimed that the mayor had induced the police chief and city administrator to cite him for city-ordinance violations in retaliation for criticizing the mayor. 480 F.3d at 876. Relying on Hartman, the Eighth Circuit held that the plaintiff had to show an absence of probable cause for the citations to establish a causal connection between the mayor's ...


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