United States District Court, D. South Dakota, Central Division
OPINION AND ORDER GRANTING DISMISSAL WITHOUT
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
4, 2018, Plaintiff Deborah Davis (Davis) filed a pro se
Complaint in this case naming McPherson County, the DO,
"state police to include the following people: Dave
Ackerman, Rodney Hoffman, Austin Hoffman, Ted Smith, Chris
Conrad." Doc. 1. The Complaint invoked 42 U.S.C. §
1983 and alleged "failure to protect" and police
harassment, in connection with allegedly allowing Rodney
Hoffman to commit "multiple misdemeanor and felony
offenses." Davis's Complaint was devoid of specific
allegations other than asserting:
Deputy Ted Smith physically pushed me out of the way at the
scene of the crime of Jimmy Kolb fire and murder. He was
trying to get me to leave the scene. I wasn't leaving[;]
Jimmy was my friend. Dave Akerman refused to arrest the man
who we know and have evidence that murdered Jimmy Kolb.
Instead he tried to turn it around on me and Rodney Hoffman
and Dave Akerman tried to file a harassment charge against me
just for asking questions.
Doc. 1 at 2. The Complaint then described the fire and death
of Mr. Kolb as occurring on November 30, 2017, and claimed
that Deputy Sheriff Smith harassed Davis through
"violent knocking" on her door to serve an order
and that Rodney Hoffman stalked her and thrice tried to
assault her with his car, but law enforcement officers would
not arrest him. Doc. 1 at 3. Davis sought $1 million in
damages. Doc. 1 at 4.
before anyone was served with the Complaint, Davis with an
additional Plaintiff Bruce Lowe (Lowe) on July 18, 2018,
filed an Amended Complaint. Doc. 6. The Amended Complaint
added as defendants Donna Hoffman, Jeff Jenner, David
Roggenkamp, and Kenneth S. Snell. Doc. 6 at 3. The Amended
Complaint invoked 42 U.S.C. § 1983, as well as sections
of Title 18, which are not wellsprings for civil jurisdiction
in this case. Doc. 6 at 7. The Amended Complaint alleged that
the law enforcement officers named as defendants conspired to
cover up the claimed murder of Jimmy Kolb and harassed and
failed to protect Jimmy Kolb or his unnamed friends. Doc. 6
at 9. The Amended Complaint also alleged that coroner
Roggenkamp and Dr. Snell are alleged to have covered up the
claimed murder of Jimmy Kolb. Doc. 6 at 9. The Amended
Complaint made no allegations against Austin Hoffman, Donna
Hoffman, Jeff Jenner, or even Rodney Hoffman. Doc. 6. The
Amended Complaint did not repeat the allegations of the
Complaint concerning any conduct directed at Davis and did
not assert that Davis or Lowe are executors of the estate of
Jimmy Kolb or otherwise entitled to bring claims on behalf of
Jimmy Kolb. The Amended Complaint sought $500, 000, plus
punitive damages from each of the Defendants. Doc. 6 at 8. On
August 17, 2018, Davis and Lowe filed a Second Amended
Complaint, Doc. 8, largely identical to the Amended
Complaint, except added Don Kallenberger and Judge Scott
Myren as defendants (without otherwise mentioning them in the
allegations) and handwritten "And Arson!" in the
Statement of Claims. Doc. 8.
September 13, 2018, Defendants McPherson County, Dave
Ackerman, Ted Smith, and Austin Hoffman (collectively the
McPherson County Defendants) filed a Motion to Dismiss, Doc.
10, because they had not been duly served under Rule 4 of the
Federal Rules of Civil Procedure with a summons and
complaint. Doc. 11. On October 12, 2018, Judge Scott Myren
filed a Motion to Dismiss based on the Eleventh Amendment,
failure to state a claim, and insufficient service of
process. Docs. 15, 16. Judge Myren submitted an affidavit
attesting that he has not been served in this case. Doc. 17.
The McPherson County Defendants filed a second motion to
dismiss for failure to state a claim. Docs. 21, 22.
Defendants DCI and DCI Agent Chris Conrad filed a Motion to
Dismiss asserting Eleventh Amendment immunity, failure to
state a claim, and insufficient service. Docs. 23, 24.
Defendant Jeff Jenner, Docs. 31, 32, and then Defendants
Donna and Rodney Hoffman, Docs. 33, 34, filed a motion to
dismiss as well for failure to state a claim.
than opposing any of the motions to dismiss, Davis has filed
several letters with the Clerk of Court asking that the case
be dismissed without prejudice. Docs. 35, 36, 38, 40. Most of
the Defendants now request that the dismissal be with
prejudice, Docs. 37, 39, noting that Davis has no standing to
bring claims on behalf of Jimmy Kolb. Lowe has not responded
to any of the motions to dismiss, and his 21-day time to
respond under the Civil Local Rules of the District has
passed with regard to each motion.
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.
Twonbly, 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. Mere "conclusory
statements" and "naked assertion[s] devoid of
further factual enhancement" do not satisfy the
plausibility standard, Icf (alteration in original) (citation
and internal marks omitted). The United States Court of
Appeals for the Eighth Circuit recognizes that pro se
complaints should be construed 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. 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.
the Amended Complaint and Second Amended Complaint fail to
state claims on which relief could be granted. The Statement
of Claim fails to even mention some named Defendants and
fails to allege that Davis or Lowe are court-appointed
executors of the estate of Jimmy Kolb or otherwise authorized
somehow to sue on his behalf. See Docs. 6, 8.
Rule 15(a) of the Federal Rules of Civil Procedure, these
Plaintiffs only had the right to amend their complaint once
without leave of court and then only within 21 days after
serving it. Fed.R.Civ.P. 15(a)(1). The filings in this case
leave it uncertain whether any defendant properly was served.
Amendment of a complaint supersedes the prior complaint, so
the Court need not concern itself with Davis's
allegations in her original complaint about "failure to
protect" and police malfeasance. Even if this Court were
to deem the filing of either amended complaint improper,
Davis's Complaint appears not to state a claim under the
Iqbal standard. State agencies and employees, such
as the DCI and DCI Agent Conrad (as well as Judge Myren) are
not subject to a § 1983 action in their official
capacities when a plaintiff seeks money damages. Will v.
Mich. Dep't of Sate Police, 491 U.S. 58, 71 (1989);
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."). The Eleventh
Amendment further stands as a bar to such recovery.
Will, 491 U.S. at 66. As for Davis's
claims against the other law enforcement officers, she has no
free-standing right to have Rodney Hoffman investigated.
Danielson v. Huether, 4:18-CV-04039-RAL, 2018 WL
6681768, at *4 n.2 (D.S.D. Dec. 19, 2018). "The law is
clear that there is no independent constitutional right to
the investigation of another." Id. (citing
Lee v. City of Philadelphia, 627 Fed.Appx. 175, 177
(3d Cir. 2015) (per curiam); Mitchell v. McNeil, 487
F.3d 374, 378 (6th Cir. 2007); Andrews v. Fowler, 98
F.3d 1069, 1078-79 (8th Cir. 1996); Flinchum v. City of
Beattyville, 224 F.Supp.3d 536, 542 n.2 (E.D. Ky. 2016);
Doe v. Mayor & City Council of Pocomoke City,
745 F.Supp. 1137, 1139 (D. Md. 1990)).
in addition to the failure to state claims, there is an added
reason for dismissal because at least some of the Defendants
and perhaps all of them were not properly served with a
summons and complaint. Dismissal for insufficient service is
without prejudice to refiling. Fed.R.Civ.P. 4(m). Similarly,
a Rule 12(b)(6) dismissal for failure to state a claim
typically is without prejudice to refiling. See Milliman
v. Cty. of Stearns, Civil No. 13-136 (DWF/LIB), 2013 WL
5426049, at * 15 (D. Minn. Sept. 26, 2013) (observing that
Eighth Circuit decisions generally favor dismissal without
prejudice under Rule 12(b)(6)). Therefore, it is hereby
that each of the Motions to Dismiss, Docs. 10, 15, 21, 23,
27, 31, 33, and 36, are granted such that the case will be
dismissed without prejudice.