United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER GRANTING IN PART DEFENDANTS'
MOTION TO DISMISS
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
Standard of Review
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
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.
Section 1983 Claims
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.
Claims against the State of South Dakota and Jackley in his
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
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.
Individual Capacity Claims Against Jackley
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
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).
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.
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).
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.
First Amendment Retaliation
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).
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.
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.").
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.
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.
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 ....").
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