Petition for Writ of Certiorari — Seneca Lovett Engel, Petitioner v. Derek Engel, et al.
Supreme Court briefOct 16, 2023
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APPENDIX
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APPENDIX
TABLE OF CONTENTS
Appendix A Opinion in the United States Court of
Appeals for the Eighth Circuit
(April 11, 2023) . . . . . . . . . . . . . . . . . App. 1
Appendix B Opinion and Order Granting Defendants’
Motions to Dismiss in the United States
District Court for the District of South
Dakota Central Division
(June 21, 2022) . . . . . . . . . . . . . . . . . App. 3
Appendix C Judgment of Dismissal in the United
States District Court for the District of
South Dakota Central Division
(June 21, 2022) . . . . . . . . . . . . . . . . App. 27
Appendix D Order Denying Rehearing and Rehearing
En Banc in the United States Court of
Appeals for the Eighth Circuit
(May 18, 2023). . . . . . . . . . . . . . . . . App. 29
Appendix E Affidavit of Tucker J. Volesky in the
United States District Court for the
District of South Dakota Central Division
(January 31, 2022) . . . . . . . . . . . . . App. 31
Appendix F Motion for Judicial Notice in the United
States District Court for the District of
South Dakota Central Division
(January 31, 2022) . . . . . . . . . . . . . App. 52
ii
Appendix G Complaint in the United States District
Court for the District of South Dakota
Central Division
(October 19, 2021) . . . . . . . . . . . . . . App. 54
App. 1
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 22-2549
[Filed April 11, 2023]
_________________________________________
Seneca Lovett Engel
)
)
Plaintiff-Appellant
)
)
v.
)
)
Derek Engel; Miller Police Department;
)
City of Miller, South Dakota; Jim Henson, )
Miller Police Department, officially and
)
individually; Shannon Speck,
)
Miller Police Department, officially
)
and individually; Various John and Jane
)
Does, Miller Police Department, officially
)
and individually
)
)
Defendants-Appellees
)
_________________________________________ )
App. 2
____________
Appeal from United States District Court
for the District of South Dakota - Central
____________
Submitted: March 23, 2023
Filed: April 11, 2023
[Unpublished]
____________
Before BENTON, SHEPHERD, and ERICKSON,
Circuit Judges.
____________
PER CURIAM.
South Dakota resident Seneca Lovett Engel appeals the
district court’s1 dismissal of her pro se complaint for
failure to state a claim. After careful de novo review, see
Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (standard of
review), we find no basis for reversal. Accordingly, we
affirm. See 8th Cir. R. 47B.
______________________________
1
The Honorable Roberto Lange, Chief Judge, United States District
Court for the District of South Dakota.
App. 3
APPENDIX B
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
3:21-CV-03020-RAL
[Filed June 21, 2022]
______________________________________
SENECA LOVETT ENGEL,
)
)
Plaintiff,
)
)
vs.
)
)
DEREK ENGEL, MILLER POLICE
)
DEPARTMENT, CITY OF MILLER,
)
SOUTH DAKOTA, JIM HENSON,
)
MILLER POLICE DEPARTMENT,
)
OFFICIALLY AND INDIVIDUALLY;
)
SHANNON SPECK, MILLER POLICE )
DEPARTMENT, OFFICIALLY AND
)
INDIVIDUALLY; AND VARIOUS
)
JOHN AND JANE DOES,
)
MILLER POLICE DEPARTMENT,
)
OFFICIALLY AND INDIVIDUALLY; )
)
Defendants.
)
______________________________________ )
App. 4
OPINION AND ORDER GRANTING
DEFENDANTS’ MOTIONS TO DISMISS
The Defendants in this case have filed motions to
dismiss. Although Plaintiff appears to have legitimate
state-law claims against at least one defendant, the
absence of a viable claim within federal court jurisdiction
requires dismissal of the case.
I. Factual Background1
This case arises from an incident that occurred in Hand
County, South Dakota, in the fall of 2019. Doc. 1 at ¶¶ 3,
12. Plaintiff Seneca Lovett Engel (“Seneca”), an African
American female, alleges that Derek Engel (“Derek”), her
then husband2 and one of the Defendants named in the
complaint, believed Seneca was involved in an extramarital affair. Doc. 1 at ¶ 12. Seneca alleges that Derek
took her phone while she was grocery shopping in Miller,
South Dakota, on October 29, 2019. Doc. 1 at ¶ 13. Later
that day, Seneca and Derek met at the Miller airport and
began arguing about the phone and alleged infidelity. Doc.
1 at ¶ 14. Seneca claims that Derek grabbed her by the
neck and slammed her against the side of a pickup truck
1
In ruling on these motions to dismiss, this Court takes the wellpleaded allegations of the complaint as true. This Court is not making
any findings of fact through this Opinion and Order.
2
Seneca and Derek had been married for approximately three years
when the incident took place. Doc. 1 at ¶ 13. They have a son. Doc. 1 at
¶ 14.
App. 5
ripping her coat, cutting her finger, and causing pain in
her back and neck. Doc. 1 at ¶ 14.
After the altercation and with Derek still possessing
her phone, Seneca traveled to the Miller Police
Department to report the incident. Doc. 1 at ¶ 15. Derek,
while following Seneca to the police department, called
Defendant Jim Henson (“Henson”), an officer for
Defendant Miller Police Department, to report that Derek
and Seneca would be arriving at the police department to
discuss a domestic incident. Doc. 1 at ¶ 15.
When they arrived at the police department, Henson
spoke with both Derek and Seneca about the incident.
According to Seneca, Derek admitted to taking her phone
and grabbing and shoving her at the airport. Doc. 1 at
¶¶ 16-17. She said the couple’s four-year-old son witnessed
the altercation and verified to police her claims. Doc. 1 at
¶¶ 14, 20. She also told Henson that she had been the
victim of physical abuse repeatedly throughout the
relationship and requested law enforcement take action to
return her phone and to pursue a domestic assault
criminal complaint. Doc. 1 at ¶¶ 18-19. Henson consulted
with Defendant Shannon Speck, Chief of the Miller Police
Department. Doc. 1 at ¶ 21. According to Seneca, the
Miller Police Department ultimately failed to take any
action. Doc. 1 at ¶ 22.
According to Seneca, Derek accessed personal material
including social media accounts and email on her phone
after he was allowed to leave the police station with
possession of it. Doc. 1 at ¶ 23. Seneca claims that Derek
App. 6
used this access to impersonate her while contacting third
parties on Snapchat, Facebook and Instagram. Doc. 1 at
¶ 26. Derek also accessed other personal content on the
phone such as photos of her that were sexual in nature and
personal information about her private life, sending such
material to Seneca’s family, friends and others in the
Miller community. Doc. 1 at ¶ 27. According to Seneca,
Derek told friends, family, co-workers, and church and
community members that Seneca was a drug addict and
prostitute with mental health issues. Doc. 1 at ¶ 30.
Seneca thereafter felt that this allegation forced her to
resign from her positions at a church and as a board
member at a daycare. Doc. 1 at ¶ 31. She claims the
allegations compromised her EEOC complaint against a
former employer resulting in a less favorable settlement.
Doc. 1 at ¶ 33. She also claims Derek harassed her by
sending her photos of dead animals, setting off her car
alarm, and being verbally abusive when exchanging
custody of their son. Doc. 1 at ¶ 35. Seneca felt forced to
seek home employment due to fear for her safety. Doc. 1 at
¶ 35.
Seneca obtained a temporary restraining order against
Derek on October 30, 2019, and began staying in a nearby
town. Doc. 1 at ¶¶ 124-25. Seneca reported Derek’s
behavior to Henson and Speck. Doc. 1 at ¶ 28. Despite
these reports, the Miller Police Department failed to
properly act upon and investigate the matter. Doc. 1 at
¶ 29. Seneca received another temporary restraining order
against Derek on January 21, 2020. Doc. 1 at ¶ 36.
App. 7
Seneca filed this action against Engel, the Miller Police
Department, City of Miller, Henson, Speck and the various
John and Jane Does of the Miller Police Department
officially and in their individual capacities (collectively
“Defendants”). Doc. 1. Seneca asserts multiple causes of
action including assault and battery (against Derek),
defamation (against Derek), invasion of privacy (against
all Defendants), intentional infliction of emotional distress
(against all Defendants), negligent infliction of emotional
distress, (against Miller Police Department, City of Miller,
Henson, Speck and various John and Jane Does of Miller
Police Department (collectively “the Miller Defendants”)),
negligent hiring, training, supervision and retention
(against the Miller Defendants), conspiracy under 42
U.S.C. § 1985 (against all Defendants), and conspiracy
under 42 U.S.C § 1983 (against all Defendants). Doc. 1 at
¶¶ 38-100. The Miller Defendants answered, Docs. 9, 15,
and Derek and the Miller Defendants filed separate
motions to dismiss and supporting briefs. Docs. 16, 17, 24,
25. Seneca opposed the motions to dismiss.3 Docs. 18, 26,
to which Defendants replied. Docs. 21, 30. After reviewing
the files and records, this Court grants Defendants’
motions to dismiss for failure to state a claim under Rule
12(b)(6) for the reasons set forth below.
3
Seneca also filed a Motion for Judicial Notice, Doc. 20, seeking to
have the Court take judicial notice of the petition, affidavit, temporary
protective order, and transcript of hearing. Doc. 19. This Court accepts
as true all well-pleaded allegations, including that Seneca sought and
received such a protective order.
App. 8
II. Standard of Review
To survive a motion to dismiss for failure to state a
claim under Rule 12(b)(6), 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). Courts
must accept the plaintiffs factual allegations as true and
construe all inferences in the plaintiffs favor, but need not
accept the plaintiffs legal conclusions. Retro Television
Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766,
768–69 (8th Cir. 2012). Although detailed factual
allegations are unnecessary, the plaintiff must plead
enough facts to “state a claim to relief that is plausible on
its face[,]” meaning “the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Therefore, the “factual allegations must be sufficient to
raise a right to relief above the speculative level.” Cook v.
George’s, Inc., 952 F.3d 935, 938 (8th Cir. 2020) (cleaned
up and citation omitted). Courts are to construe complaints
liberally. Id.
III.
Discussion
A. 42 U.S.C § 1983
Section 1983 provides that “[e]very 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 . . . to the deprivation of
App. 9
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured.”
42 U.S.C. § 1983. Seneca claims that the Defendants acted
with reckless indifference to her constitutional rights. Doc.
1 at ¶¶ 92-100. “Liability for damages for a federal
constitutional tort is personal, so each defendant’s conduct
must be independently assessed.” Faulk v. City of St.
Louis, 30 F.4th 739, 744 (8th Cir. 2022) (citation omitted).
Therefore, this Court will address each Defendant in turn,
grouping them together when appropriate.
1. Derek
Derek asserts that as a private individual, he cannot be
held liable under § 1983. Docs. 17, 21. Seneca responds
that Derek acted under the color of state law because he
acted with the help, and in conspiracy with, the Miller
Defendants. Doc. 18. The parties agree that a § 1983 claim
requires that the Defendants: 1) acted under the color of
state law, and 2) deprived the plaintiff of a federal right
secured by the Constitution or laws of the United States.
See Docs. 17, 18 (citing West v. Atkins, 487 U.S. 42, 48
(1988)). However, the parties disagree on what test this
Court should apply to determine whether Derek acted
under the color of state law. See Docs. 17, 18. Derek also
contests whether he deprived Seneca of any constitutional
rights. Doc. 17.
Derek cites to Jackson v. Metropolitan Edison Co., 419
U.S. 345, 351 (1974), for the proposition that a private
individual only acts under the color of state law if “there is
a sufficiently close nexus between the State and the
App. 10
challenged action of the [actor] so that the action of the
latter may be fairly treated as that of the State itself.” See
Doc. 17. However, Seneca cites to Mark v. Borough of
Hatboro, 51 F.3d 1137, 1142 (3rd Cir. 1995), to contend the
Supreme Court has at times applied different tests and to
argue that this Court should instead ask “whether the
private party has acted with the help of or in concert with
state officials.” Doc. 18 (citing Mark, 51 F.3d at 1142). The
Eighth Circuit has stated that a private actor “may be
liable under § 1983 only if she is a willing participant in
joint action with the State or its agents.” Miller v.
Compton, 122 F.3d 1094, 1098 (8th Cir. 1997) (cleaned up
and citations omitted). This requires alleging at least a
meeting of the minds to overcome a motion to dismiss. Id.
Moreover, a person may fairly be said to be a state actor if
they “acted together with or . . . obtained significant aid
from state officials in furtherance of the challenged
action.” Wickersham v. City of Columbia, 481 F.3d 591,
597 (8th Cir. 2007) (cleaned up and citation omitted). “The
traditional definition of acting under color of state law
requires that the defendant in a § 1983 action have
exercised power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the
authority of state law.” Parker v. Boyer, 93 F.3d 445,
447–48 (8th Cir. 1996) (cleaned up and citation omitted).
Regardless of what test this Court uses to analyze the
color-of-law element, Seneca’s complaint falls short of
stating sufficient facts to establish that Derek’s actions
were under color of state law. Seneca points to the facts
that Derek was the first to contact the Miller Defendants
App. 11
about the domestic altercation and to speak with them at
the police station as proof that Derek acted in concert with
the Miller Defendants to deprive Seneca of her phone,
which in turn allowed Derek the opportunity to commit the
alleged tortuous acts of defamation, assault and invasion
of privacy. Doc. 18. She also states that the Miller
Defendants’ failure to respond to Derek’s tortious conduct
when they had probable cause to investigate him further
demonstrates that Derek and the Miller Defendants acted
together under the color of law. Doc. 18.
Seneca’s factual claims, even taken as true, do not
establish that Derek acted under the color of state law.
The Eighth Circuit has said that “[t]o impose § 1983
liability on a private actor for merely answering a law
enforcement official’s questions regarding a case would
have obvious and unfortunate consequences and has no
support in precedent or common sense.” Miller, 122 F.3d at
1098. As one court has noted, “the summoning of police
officers or the provision of information to police officers,
even if that information is false or results in the officers
taking affirmative action, is not sufficient to constitute
joint action with state actors for purposes of Section 1983.”
Carrillos v. Inc. Vill. of Hempstead, 87 F. Supp. 3d 357,
371 (E.D.N.Y. 2015) (listing cases). Derek made the first
report and spoke with the Miller Defendants about the
domestic altercation, no doubt providing his own gloss on
what occurred. But this does not transform him into an
actor under color of state law simply because the Miller
Defendants believed him or failed to act based on
conflicting accounts of a domestic dispute. See Benavidez
App. 12
v. Gunnell, 722 F.2d 615, 618 (10th Cir. 1983) (furnishing
information to police does not constitute joint action under
color of state law for §§ 1983 and 1985). Indeed, as Derek
argues, see Doc. 17 at 6, Seneca has not alleged that Derek
took any action on behalf of the state or acted with their
authority, and Seneca admits that the Miller Defendants’
actions of deliberate indifference at most only “tacitly
authorized” Derek’s actions. See Doc. 18 at 5. Without
factual enhancement, Seneca’s allegations about Derek
being a state actor are “merely legal conclusions.” Faulk,
30 F.4th at 747 (cleaned up and citation omitted). Seneca
cannot establish that an agreement was made or that a
meeting of the minds occurred between the Miller
Defendants and Derek. The facts provided only prove that
Derek first communicated with the Miller Defendants and
persuaded them not to seize the phone or investigate or
arrest him.
Nor does Seneca state a claim for a § 1983 conspiracy
between Derek and the Miller Defendants. To prove a 42
U.S.C. § 1983 conspiracy claim, a plaintiff must show:
(1) that the defendant conspired with others to deprive him
of constitutional rights; (2) that at least one of the alleged
co-conspirators engaged in an overt act in furtherance of
the conspiracy; and (3) that the overt act injured the
plaintiff.” Faulk, 30 F.4th at 747 (cleaned up and citation
omitted). A viable conspiracy claim “requires a complaint
with enough factual matter (taken as true) to suggest that
an agreement was made.” Id. at 748. Seneca does not state
what agreement the Miller Defendants made with Derek
or help they provided that allowed Derek to commit the
App. 13
alleged offenses other than failing to retrieve her phone
and failing to investigate and arrest Derek. Based on the
facts provided, it appears that the Miller Defendants
plausibly may have been negligent in failing to seize the
phone and properly investigate Derek, but not working in
concert or conspiring with Derek to deprive Seneca of any
constitutional right. See Daniels v. Williams, 474 U.S. 327,
332 (1986) (lack of due care does not deprive a
constitutional right under the Fourteenth Amendment);
see also Lane v. Sarpy Cnty., 165 F.3d 623, 624 (8th Cir.
1999) (negligent conduct does not establish § 1983
complaint). “[W]here the well-pleaded facts do not permit
the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not
shown – that the pleader is entitled to relief.” Iqbal, 556
U.S. at 679 (cleaned up).
Even accepting Seneca’s factual allegations as true, she
has failed to establish that Derek acted under the color of
state law and therefore has not met her burden under
§ 1983. Derek’s motion to dismiss as to the § 1983 claim is
granted under Rule 12(b)(6).
2. The Miller Defendants
The Miller Defendants assert that due to qualified
immunity, they cannot be held liable under 42 U.S.C.
§ 1983 in this case. “Qualified immunity ensures that
government officials performing discretionary functions
are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
App. 14
have known.” Faulk, 30 F.4th at 744 (cleaned up and
citation omitted). At the Rule 12(b)(6) stage, a defendant
must show they are “entitled to qualified immunity on the
face of the complaint.” Bradford v. Huckabee, 394 F.3d
1012, 1015 (8th Cir. 2005). To defeat qualified immunity,
the plaintiff must show “(1) that the official violated a
statutory or constitutional right, and (2) that the right was
clearly established at the time of the challenged conduct.”4
Faulk, 30 F.4th at 744.
Seneca has named the Miller Defendants in both their
individual and official capacities. “Official capacity suits
generally represent only another way of pleading an action
against an entity of which an officer is an agent.”
Mortensbak v. Butler, 102 F. Supp. 3d 1085, 1100–01
(D.S.D. 2015) (cleaned up and citation omitted). Thus, “a
§ 1983 suit against an officer in his official capacity is
functionally equivalent to a suit against the employing
governmental entity and must be dismissed as redundant
to the claims asserted against the government entity.”
Powers v. City of Ferguson, 229 F. Supp. 3d 894, 899 (E.D.
Mo. 2017) (citing Veatch v. Bartels Lutheran Home, 627
F.3d 1254, 1257 (8th Cir. 2010)). Therefore, this Court
dismisses the claims against the Miller Defendants in
their official capacity and will address Seneca’s claims
regarding the municipality below. Likewise, Seneca’s
claims against the Miller Police Department are dismissed
as they are properly analyzed as against the municipality.
4
Courts may alter the sequence of the analysis to determine if the test
is met. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
App. 15
See Ketchum v. City of W. Memphis, Ark., 974 F.2d 81, 82
(8th Cir. 1992). In addition, defendants “cannot be held
liable merely because they were employed by [a police
department] on the night some members of that
department may have violated plaintiffs’ rights -- liability
under § 1983 requires proof of a causal link between each
defendant and the specific wrongs that defendant
committed.” Faulk, 30 F.4th at 745 (cleaned up and
citation omitted). Therefore, Seneca’s claims against the
John and Jane Does of the Miller Police Department are
dismissed as no specific allegations have been levied
against them. This Court will discuss separately the
remaining individual capacity claims against each of the
Miller Defendants.
First, Seneca contends that Henson and Speck violated
her statutory and constitutional rights by failing to arrest
Derek, failing to secure her phone, and failing to properly
investigate her repeated reports concerning Derek’s
alleged offenses following the issuance of a protective
order. Doc. 26 at 3. Seneca argues that these actions
violated her Fourth Amendment rights to privacy and to be
free from seizure, Fifth Amendment right prohibiting the
state from depriving her of “life, liberty, property, without
due process of law,” and Fourteenth Amendment right to
equal protection of the law. Doc. 26 at 4.
Seneca’s claims against Henson and Speck fail to state
a claim because she has not plausibly alleged that the
Miller Defendants agreed to a conspiracy with Derek to
commit the alleged offenses eliminating her Fourth
Amendment claim to privacy and Fifth Amendment claim
App. 16
to “life, liberty and property.” After all, Derek was the one
who invaded Seneca’s privacy and took other actions to the
detriment of her “life, liberty and property.” The mere
failure to investigate and arrest Derek and retrieve her
phone do not thereby support the inference that the Miller
Defendants violated her Fourth or Fifth Amendment
rights. See Clemmons v. Armantrout, 477 F.3d 962, 967
(8th Cir. 2007) (“Liability under section 1983 requires a
causal link to, and direct responsibility for, the deprivation
of rights.” (citation omitted)); see also Danielson v.
Huether, 355 F. Supp. 3d 849,860 n.2 (D.S.D. 2018) (“The
law is clear that there is no independent constitutional
right to the investigation of another.”).
Seneca’s Fourteenth Amendment claims, whether
based in equal protection or due process, fail for much the
same reason. Regarding the equal protection claims, “[a]
police department’s failure to protect victims of domestic
violence can amount to an equal protection violation
actionable under 42 U.S.C. § 1983.” Villanueva v. City of
Scottsbluff, 779 F.3d 507, 511 (8th Cir. 2015). The test the
Eighth Circuit has adopted, albeit at the summary
judgment stage, to allow a § 1983 equal protection claim
against the police states:
[A] plaintiff must proffer sufficient evidence that
would allow a reasonable jury to infer that it is the
policy or custom of the police to provide less
protection to victims of domestic violence than to
other victims of violence, that discrimination
against women was a motivating factor, and that
the plaintiff was injured by the policy or custom.
App. 17
Ricketts v. City of Columbia, 36 F.3d 775, 779 (8th Cir.
1994). Here, Seneca has not alleged any facts that she
faced discrimination based on gender or race and does not
allege any facts that would allow this Court to infer it was
a policy or custom of the Miller Defendants to provide less
protection to women, women of color, or victims of
domestic violence.
To support her due process claims, Seneca points to the
Miller Defendants’ failure to investigate her allegations
against Derek as proof she was denied substantive due
process. “The Supreme Court has noted that the right to
access the courts finds support in many parts of the
Constitution, including the Due Process Clause.” Scheeler
v. City of St. Cloud, Minn., 402 F.3d 826, 831 (8th Cir.
2005). However, “as a general matter, [a] State’s failure to
protect an individual against private violence simply does
not constitute a violation of the Due Process Clause.”
Villanueva, 779 F.3d at 512 (cleaned up and citation
omitted); see also DeShaney v. Winnebago Cnty. Dep’t of
Soc. Servs., 489 U.S. 189, 195 (1989) (“[N]othing in the
language of the Due Process Clause itself requires the
State to protect the life, liberty, and property of its citizens
against invasion by private actors.”); Danielson, 355
F. Supp. 3d at 860 n.2 (no constitutional right to the
investigation of another).
The Eighth Circuit has recognized one exception: the
“state-created-danger theory’ under which the state owes
a duty to protect individuals if it created the danger to
which the individuals are subjected.” Villanueva, 779 F.3d
App. 18
at 512 (cleaned up and citation omitted). To establish the
“state-created-danger theory,” the plaintiff must prove:
(1) that she was a member of a limited, precisely
definable group, (2) that the municipality’s conduct
put her at a significant risk of serious, immediate,
and proximate harm, (3) that the risk was obvious
or known to the municipality, (4) that the
municipality acted recklessly in conscious disregard
of the risk, and (5) that in total, the municipality’s
conduct shocks the conscience.
Id. (citation omitted). But the Eighth Circuit and other
courts, in applying this test, have refused to find a statecreated danger when an officer uses his or her discretion
in evaluating domestic violence allegations and chooses not
to investigate. See id. at 513; Brown v. Grabowski, 922
F.2d 1097, 1114 (3d Cir. 1990) (applying state-createddanger theory and finding no due process violation when
police failed to investigate allegations that victim had been
kidnapped for three days and other threats of domestic
violence where victim was later killed by intimate
partner); Hansell v. City of Atl. City, 152 F. Supp. 2d 589,
608 (D.N.J. 2001) (finding no due process violation when
police officers took no affirmative act that placed plaintiff
in danger in failing to investigate domestic violence
complaint); Sheets v. Mullins, 287 F.3d 581, 588 (6th Cir.
2002) (officer’s failure to further investigate a domestic
violence complaint alleging the plaintiffs boyfriend
threatened to kill her and their child did not violate the
plaintiffs due process rights, even though her boyfriend
later killed their daughter).
App. 19
Seneca claims the officers’ “deliberate indifference”
violated her constitutional right to access the courts. Doc.
26 at 7. The Eighth Circuit has held that a failure to
investigate can create a due process violation if the
defendants displayed “deliberate indifference” to the
plaintiffs fundamental right to the degree that it “shocks
the conscience.” Scheeler, 402 F.3d at 831. But the Eighth
Circuit has also stated that “[a]n officer’s negligent failure
to investigate inconsistencies or other leads is insufficient
to establish conscience-shocking misconduct.” Akins v.
Epperly, 588 F.3d 1178, 1184 (8th Cir. 2009); see also
Wilson v. Lawrence Cnty., 260 F.3d 946, 955 (8th Cir.
2001) (“Negligent failure to investigate other leads or
suspects does not violate due process.”). “Even allegations
of gross negligence fail to establish a constitutional
violation. Only reckless or intentional failure to investigate
other leads offends a defendant’s due process rights.”
Clemmons, 477 F.3d at 966 (cleaned up and quotation
omitted).
Here, the officers met with Derek and Seneca
separately and simply chose not to take any further action
regarding the situation. This is not the “conscious
shocking” behavior that violates a constitutional right.
Compare Villanueva, 779 F.3d at 512 (finding no conscious
shocking behavior where police failed to issue written
report and prosecute based on victim’s allegations) with
Rogers v. City of Little Rock, Ark., 152 F.3d 790, 797 (8th
Cir. 1998) (finding conscious shocking behavior from police
officer who raped woman coercing her into a sexual act
with his position of authority); see also Montgomery v. City
App. 20
of Ames, 749 F.3d 689, 695 (8th Cir. 2014) (finding no
reckless or conscious shocking behavior where officer was
faced with conflicting accounts of domestic violence
accusations and chose not to further investigate).
As the Eighth Circuit has stated, “[h]olding that an
officer’s failure to arrest for one incident of harassment
causes a subsequent incident of harassment or violence
would essentially take away the officer’s discretion to
determine when to arrest—a fundamental part of our
criminal system.” Ricketts, 36 F.3d at 780. And because
“[d]iscretion is essential to the criminal justice process, []
officers cannot be expected to make an arrest or initiate a
formal investigation in response to every complaint.”
Villanueva, 779 F.3d at 513 (cleaned up and citation
omitted). While failing to investigate serious accusations
of domestic violence reflects poorly on the officers of the
Miller Police Department, Seneca has failed to allege
conduct by the Miller Defendants that shocks the
conscience. At most, Seneca has pleaded facts to infer
superficiality, lethargy, neglect and disinterest by the
Miller Defendants, but insufficient facts to allow an
inference that the failure to investigate was intentional or
reckless.
The same analysis above applies to the last of the
Miller Defendants, the City of Miller. “[I]n a section 1983
action, a municipality may only be held liable for
constitutional violations which result from a policy or
custom of the municipality.” Scheeler, 402 F.3d at 832
(citation omitted). “There must exist a prior pattern of
unconstitutional conduct that is so ‘persistent and
App. 21
widespread’ as to have the effect and force of law.”
Andrews v. Fowler, 98 F.3d 1069, 1075 (8th Cir. 1996).
Even if Seneca were able to point to a specific
constitutional violation resulting from the failure to
investigate her domestic violence allegations, she cannot
point to any pattern, custom or policy within the Miller
Police Department causing such violations and therefore
she cannot establish a valid § 1983 complaint against the
municipality. See Mortensbak, 102 F. Supp. 3d at 1100–01
(granting summary judgment on issue of qualified
immunity to municipality where plaintiff presented no
evidence that violation was anything “more than a onetime incident or that it was carried out in accordance with
an unconstitutional custom or policy”). Therefore, the
Miller Defendants’ motion to dismiss the § 1983 claims
must be granted.
B. 42 U.S.C. § 1985
Seneca contends Defendants engaged in a conspiracy in
violation of § 1985(3). Docs. 1, 26 at 10. “In order to state
a claim for conspiracy under § 1985, a plaintiff must allege
with particularity and specifically demonstrate with
material facts that the defendants reached an agreement.”
Kelly v. City of Omaha, 813 F.3d 1070, 1077 (8th Cir.
2016) (cleaned up and citation omitted). “This standard
requires that allegations of a conspiracy be pleaded with
sufficient specificity and factual support to suggest a
meeting of the minds directed toward an unconstitutional
action.” Id. (cleaned up and citation omitted).
App. 22
While Seneca argues that she only needs to allege
enough to “suggest” a conspiracy to overcome a Rule
12(b)(6) motion to dismiss, she has not alleged sufficient
facts. See Doc. 26 at 12. Seneca’s only allegations about
any agreement between Derek and the Miller Defendants
are the sequence of communications on the day of the
incident and the failure of the Miller Defendants to follow
up on her allegations of domestic abuse. As previously
discussed, these allegations are too speculative to establish
a “meeting of the minds” between Derek and the Miller
Defendants. Without material facts supporting such an
allegation, Seneca’s § 1985 claim is properly dismissed.
Seneca cites to Adickes v. S.H. Kress & Co., 398 U.S.
144 (1970), Doc. 26 at 12, as support that the sequence of
communications between two parties can create a
suggestion of a conspiracy, but the case is readily
distinguishable.5 Adickes involved a challenge to the public
accommodations provisions of the 1964 Civil Rights Act,
when an African American plaintiff was refused service at
a restaurant and then was arrested afterwards on a charge
of vagrancy. One of the defendants admitted in a
deposition that he had “ordered the food counter
supervisor to see that Miss Adickes was refused service
only because he was fearful of a riot in the store by
customers angered at seeing a ‘mixed group’ of whites and
blacks eating together.” Adickes, 398 U.S. at 154. The
5
It is worth noting that Iqbal, 556 U.S. at 662, and Twombly, 550 U.S.
at 554, which created a more demanding standard for conspiracy
allegations at the pleading stage was decided decades after Adickes.
App. 23
Supreme Court identified that the crucial issue in the case
was whether a police officer was present in the store
because “[i]f a policeman were present, we think it would
be open to a jury, in light of the sequence that followed, to
infer from the circumstances that the policeman and a
Kress employee had a ‘meeting of the minds[.]”’ Id. at 158.
But in Adickes, the policeman in question did not deny the
possibility that “upon seeing petitioner with Negroes, he
communicated his disapproval to a Kress employee,
thereby influencing the decision not to serve petitioner.”
Id. And there was testimony that the chief of police had
previously spoken with the store owner and that the
arresting policeman had visited the store everyday
creating the inference of a preexisting relationship. Id. at
153 n.8.
Here, there is no allegation that Derek had a
preexisting relationship with any members of the Miller
Police Department. While it is undisputed that Derek
(having taken Seneca’s phone) spoke with Henson before
Seneca had a chance to lodge her domestic violence
complaint, Derek and Henson’s communication was in the
ordinary course of Henson’s position as a police officer and
was in conjunction with and directly related to the
domestic incident that had occurred earlier that day.
Seneca claims that the only reasonable explanation why
her constitutional rights were violated is because she is a
woman or woman of color. See Doc. 26 at 11 n.10. But this
statement is a legal conclusion rather than supported with
indicia of invidious discrimination; by contrast in Adickes,
the intention of the conspiracy to discriminate—to refuse
App. 24
service to mixed race dining parties—was obvious and
supported with some evidence that the police exhibited
racial animosity. Seneca has failed to plead facts that
suggest a meeting of the minds between Derek and the
Miller Defendants and thus her § 1985 claim fails.
Any conspiracy alleged among the Miller Defendants
themselves to deny Seneca her constitutional rights fails
because of the intracorporate conspiracy doctrine which
precludes conspiracy claims against government
institutions. Kelly, 813 F.3d at 1078. “Because a
conspiracy by its nature involves multiple parties, this
doctrine provides that a local government entity cannot
conspire with itself through its agents acting within the
scope of their employment.” Id. at 1078 (citation omitted).
Therefore, Defendants are dismissed from Seneca’s § 1985
claim.
C. Supplemental jurisdiction
Seneca’s remaining claims against Derek are based in
state, not federal, law, and there is no complete diversity
of citizenship here. Therefore, this Court would have to
exercise supplemental jurisdiction under 28 U.S.C.
§ 1367(a) which permits a district court to handle state law
claims that are a part of the same case or controversy as
the claims that fall within the district court’s original
jurisdiction. However, a federal court generally, under 28
U.S.C. § 1367(c)(3), declines to exercise supplemental
jurisdiction if “the district court has dismissed all claims
over which it has original jurisdiction” unless the case is
close to or in the midst of trial or other such reasons exist
App. 25
to retain jurisdiction See Zutz v. Nelson, 601 F.3d 842, 850
(8th Cir. 2010) (cleaned up and citation omitted). “The
district court is afforded broad discretion in determining
whether to exercise supplemental jurisdiction.” Crest
Constr. II, Inc. v. Doe, 660 F.3d 346, 359 (8th Cir. 2011).
“In determining whether to exercise supplemental
jurisdiction, courts considers judicial efficiency,
convenience, and fairness to litigators.” Magee v. Trs. of
the Hamline Univ., 957 F. Supp. 2d 1047, 1060 (D. Minn.
2013). “In assessing efficiency, convenience, and fairness,
courts look to a number of factors, including the stage of
the litigation; the difficulty of the state claim; the amount
of time and energy necessary for the claim’s resolution;
and the availability of a state forum.” Id. (cleaned up and
citation omitted). “Courts should exercise judicial restraint
and avoid state law issues wherever possible . . . .” Id. The
stage of this case is “before any substantial preparation
has gone into the dependent claims,” which provides a
“fair” reason to decline to exercise supplemental
jurisdiction. Id. (cleaned up and citation omitted).
Because Seneca has not stated a viable claim within
original jurisdiction in federal court, this Court declines to
exercise supplemental jurisdiction over Seneca’s state law
claims. See Mountain Home Flight Serv., Inc. v. Baxter
Cnty., 758 F.3d 1038, 1045 (8th Cir. 2014) (district court
acted within its discretion declining to exercise
supplemental jurisdiction after dismissing § 1983 claims);
see also Hansell v. City of Atl. City, 152 F. Supp. 2d 589,
602–03 (D.N.J. 2001), (“[Section] 1983 does not create a
cause of action based upon violations of state statutes.”).
App. 26
Dismissing these claims at an early stage of litigation will
allow Seneca to pursue relief in state court against Derek
if she so chooses. See Jennings v. City of Stillwater, 383
F.3d 1199, 1205 (10th Cir. 2004) (“[F]ederal courts are not
entrusted with the responsibility of ensuring the effective
enforcement of state criminal laws; that role falls to state
and local law enforcement authorities.”).
IV.
Conclusion
For the reasons discussed above, it is
ORDERED that Derek’s motion to dismiss, Doc. 16, is
granted without prejudice to Seneca refiling in state court.
It is further
ORDERED that Miller Defendants’ motion to dismiss,
Doc. 24, is granted. It is finally
ORDERED that this Court declines to exercise
supplemental jurisdiction over the state law claims.
DATED this 21st day of June, 2022.
BY THE COURT:
/s/_________________________
ROBERTO A. LANGE
CHIEF JUDGE
App. 27
APPENDIX C
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
3:21-CV-03020-RAL
[Filed June 21, 2022]
______________________________________
SENECA LOVETT ENGEL,
)
)
Plaintiff,
)
)
vs.
)
)
DEREK ENGEL, MILLER POLICE
)
DEPARTMENT, CITY OF MILLER,
)
SOUTH DAKOTA, JIM HENSON,
)
MILLER POLICE DEPARTMENT,
)
OFFICIALLY AND INDIVIDUALLY;
)
SHANNON SPECK, MILLER POLICE )
DEPARTMENT, OFFICIALLY AND
)
INDIVIDUALLY; AND VARIOUS
)
JOHN AND JANE DOES,
)
MILLER POLICE DEPARTMENT,
)
OFFICIALLY AND INDIVIDUALLY; )
)
Defendants.
)
______________________________________ )
App. 28
JUDGMENT OF DISMISSAL
For the reasons explained in the Opinion and Order
Granting Defendants’ Motions to Dismiss, it is hereby
ORDERED, ADJUDGED and DECREED that
Petitioner’s claims are dismissed and that judgment enters
for Defendants under Rules 54 and 58 of the Federal Rules
of Civil Procedure.
DATED this 21st day of June, 2022.
BY THE COURT:
/s/_________________________
ROBERTO A. LANGE
CHIEF JUDGE
App. 29
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 22-2549
[Filed May 18, 2023]
_________________________________________
Seneca Lovett Engel
)
)
Appellant
)
)
v.
)
)
Derek Engel, et al.
)
)
Appellees
)
_________________________________________ )
____________________________________________________
Appeal from U.S. District Court for the District of
South Dakota - Central (3:21-cv-03020-RAL)
____________________________________________________
ORDER
The petition for rehearing en banc is denied. The
petition for rehearing by the panel is also denied.
May 18, 2023
App. 30
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans
App. 31
APPENDIX E
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
3:21-CV-3020
[Filed January 31, 2022]
______________________________________
SENECA LOVETT ENGEL,
)
Plaintiff,
)
)
vs.
)
)
DEREK ENGEL, MILLER POLICE
)
DEPARTMENT, CITY OF MILLER,
)
SOUTH DAKOTA, AND JIM HENSON, )
SHANNON SPECK, AND VARIOUS
)
JOHN AND JANE DOES OF THE,
)
MILLER POLICE DEPARTMENT,
)
OFFICIALLY AND INDIVIDUALLY; )
JOINTLY AND SEVERALLY,
)
Defendants.
)
______________________________________ )
AFFIDAVIT OF TUCKER J. VOLESKY
STATE OF SOUTH DAKOTA
COUNTY OF BEADLE
)
: ss
)
App. 32
Tucker J. Volesky, attorney for the above named
Plaintiff, being first duly sworn on oath, deposes and state
as follows:
1. I am the attorney representing Plaintiff Seneca Lovett
Engel and I make this affidavit upon my personal
information and knowledge. This affidavit and its
exhibits are submitted in order to supply the Court
with the information needed to take judicial notice, as
requested by Plaintiffs Motion for Judicial Notice.
2. Attached as Exhibits are true and correct copies of the
following court records in the action filed in the Circuit
Court for the Third Judicial Circuit, Hand County,
South Dakota, entitled Seneca Lovett Engel, Petitioner,
vs. Derek Engel, Respondent, 29TPO20-000001:
1. Petition and Affidavit for a Protection Order;
2. Protection Order Hearing Transcript; and
3. Order for Protection.
Dated the 31st day of January, 2022.
App. 33
Subscribed and sworn to before
Me this 31st day of January, 2022.
/s/_____________________________
Notary Public, South Dakota
My Commission Expires: 1-19-2023
[SEAL]
App. 34
EXHIBIT 2
STATE OF SOUTH DAKOTA
COUNTY OF HAND
)
) ss
)
IN CIRCUIT COURT
THIRD JUDICIAL CIRCUIT
CASE NO. 29TPO20-000001
_____________________________
SENECA LOVETT ENGEL,
)
)
Petitioner, )
)
vs.
)
)
DEREK ENGEL,
)
)
Respondent.
)
_____________________________ )
PERMANENT ORDER HEARING
PROCEEDINGS: Taken on Tuesday, March 24, 2020, at
the Hand County Courthouse, in
Miller, South Dakota, at the hour of
10:01 a.m.
BEFORE:
The Honorable PATRICK T. PARDY,
Circuit Judge.
App. 35
APPEARANCES:
FOR PETITIONER SENECA LOVETT ENGEL:
SENECA LOVETT ENGEL Pro Se
FOR RESPONDENT DEREK ENGEL:
MELISSA E. NEVILLE, ESQ.
Bantz, Gosch & Cremer, LLC
306 Sixth Avenue
Aberdeen, South Dakota 57401
605.225.2232
ALSO PRESENT:
CARLA GLYNN, Intern
DEREK ENGEL
--o0o-Daniel P. Feldhaus Reporting
P.O. Box 467, Madison, SD 57042 605.256.5285
[pp.95-101]
officer?
THE WITNESS: An officer.
Q (BY MS. NEVILLE) I’m sorry, Officer Henson.
Was there an incident in late October that involved
you?
A Yes.
App. 36
Q And can you tell me what day that the first call was
made?
A That was Tuesday, October 29th, 2019.
Q And how were you contacted?
A Derek Engel called me by phone. I was out on patrol.
Q Are you personal friends with Derek Engel?
A No. I had never met Derek or Seneca before that day.
Q Okay. And did you then meet Derek at the Police
Department -- or police station?
A Yes, I did. Mr. Engel called me and asked if I could
meet him and his wife at the office.
Q Okay.
A I was a few blocks away, so I arrived at the office
within a few minutes. And they were sitting outside,
waiting.
Q Did he ask you why -- or did he tell you why he wanted
you to meet him at the office?
A Yes. Derek told me he and his wife were having some
marital problems, and he wanted to speak to me, with
her present, to avoid any domestic situation -domestic-violence situation.
Q So allegations of domestic violence?
A Yes.
App. 37
Q Okay. So you said you drove up and they were both
sitting there in the vehicles?
A Yes, separate vehicles.
Q Okay. Did you invite them into your office, or did you
talk to them in their vehicles? Or how did you -A I opened the office and invited them in. I invited them
to sit down. Derek sat down. Seneca chose to stand,
which was perfectly fine with me. However she felt the
most comfortable.
Q Okay. What was their demeanor at the time?
A Seneca was agitated. She was upset because Derek
wouldn’t give her her phone back.
I didn’t get the feeling when I drove up, that they had
been in any sort of very heated discussion.
Q Okay.
A Neither one of them seemed extremely upset. Seneca
wasn’t crying or anything like that.
She was, like I said, upset because she wanted her
phone back.
Q Okay. Was Seneca’s finger bleeding?
A I didn’t notice that.
After Derek mentioned it, I did notice she had a BandAid on her finger.
App. 38
Q Okay. And was Seneca -- did she look disheveled or her
coat torn?
A Not that I noticed, no.
Q Okay. So did you ask them to explain what was going
on?
A I did. I asked Derek to step into another office so I
could speak to him privately. And at this time, Derek
asked if Seneca could leave and pick up their other son
from school, and I said that was fine, she was free to
come and go as she pleased.
She left and came back within about ten minutes with
her other son.
Q Okay. So what did you understand was the argument
over the phone? Where did Derek get the phone?
A Derek told me -- he had driven by the grocery store and
saw Seneca’s car parked in front; and he wanted to
speak to her.
He walked up to the car, and her son was in the car.
And Seneca’s phone was being charged in the car. And
that’s when he took the phone. He wanted to try and
get into her phone, to see if she had been contacting
any men.
Q Okay. And whose phone is it? Who owns the phone?
A Derek told me he bought the phone and was paying for
the service.
App. 39
I consulted with Chief Speck; and he said as long as
Derek owns the phone and is paying for the service, it’s his
phone.
Q Okay. So you said that Seneca kept asking for the
phone back.
Did she get the phone back that day?
A She did not, no.
Q Okay. And was she ever denied using a phone to call
911, or ask anyone for help?
A No. Never.
Q What did Derek tell you happened before they had a -right immediately before they had arrived at the police
station?
A Derek said, while he was talking to Seneca, I guess
after their conversation was pretty much over, he
wanted to get in the pickup and leave. And she stood in
front of the door to block his way, and he kept asking
her to move so he could leave. He said at one point he
must have turned or something, and that’s when she
caught her fingernail on his coat, or whatever, and tore
the nail. And that’s when he got her the Band-Aid.
Q Okay.
A Then he said, after some more argument, he grabbed
her coat and moved her to the side so he could leave.
App. 40
And he said he did push her up against the car so he
could get by her and get in the pickup.
Q Okay, because the two vehicles were parked next to
each other?
A Yes.
Q Did Seneca have any bruises or injuries other than her
fingernail?
A None that I noted.
Q And why was Seneca standing in her way -- or in
Derek’s way?
A Because she wanted her phone.
Q Oh. So then when you met with Seneca, what did
Seneca tell you?
A She told me that they hadn’t been getting along for
approximately three months, and that Derek had
threatened her. She said she had video on her phone of
him screaming at her; and there were holes in the walls
of their apartment.
I asked her if she wanted to take pictures -- wanted me
to go take pictures of the apartment, and she -- at about
the same time, she wanted to call her mother. And I
offered her the use of the office phone. And I told her I
would dial her mother’s number. And at that point, she
became very nervous; and she said, “I just want to get
App. 41
out of here right now.” And she and the children left
immediately.
Q Okay. Did you offer to go and take photographs of her
apartment or anything like that?
A I did, but she left.
Q Okay. She didn’t take you up on that offer?
A No.
Q Did you have a phone call from a man named Jesse
Fanning after that?
A I did. Approximately ten -- I have to look that up.
Q 10:23 a.m.?
A Yes, on Wednesday, October 30th.
9:13 a.m.
Q And what was -- without telling me what Jesse said,
what was the purpose of his phone call?
A He was telling me, I had no right to take Seneca’s
phone, and that amounted to kidnapping.
Q Okay. Did Sheriff Shane Croeni then address the
concerns raised by Jesse?
A He called me later.
App. 42
After I spoke to Jesse and after he left, about 10:23
a.m. Jesse called back and asked to call -- talk to Chief
Speck. Chief Speck wasn’t in the office; and he hung up.
And a minute or so later, Sheriff Croeni called me and
said that Jesse was in his office complaining about the
way I spoke to him.
Q Did you also have the phone in your possession?
A I don’t believe I had it in my possession at that time.
Derek came back, and we talked about turning the
phone over to the DCI so they could get whatever
information off. And he left it with me, and came back
about 8:00 a.m.
Q The next day?
A I believe it was the next day.
Q Okay. So he left it with you on that evening of
Wednesday, October 30th; and you had it until the next
day, which was the 31st?
A Yeah, I believe -- yes. About 4:15 Derek was at the
office, asking me about the process to obtain a
protection order. And that’s when he left me the phone.
He came back the next morning and said he had spoken
to his attorney, and was advised to take the phone so
they could retrieve the information for this case.
Q At Computer Forensic Resources in Sioux Falls?
App. 43
A Yes.
And I gave the phone back to him.
Q Okay.
A I also advised him -- I didn’t know for sure, but I
believe if -- once the phone is out of my possession, the
DCI probably would question the -Q Content?
A -- the content, the usefulness of them getting it later.
Q On Thursday, October 31st of 2019, did you also receive
a call from somebody at Child Protective Services?
*
*
*
[pp.106-109]
Did you ask to see it at all, from the Defendant?
A I don’t believe I did.
At about that same time, you said you wanted to call
your mother, and I offered you the use of the phone
that was in the office where we were speaking
privately. And I asked you what her number was, and
you immediately said, “I -- I just got to get out of here.”
And you grabbed your kids, and you were out the door.
Q Okay. And I don’t know how it works with asking little
ones what happened; but I don’t know if you remember
my youngest saying -- do you remember what he said?
App. 44
A I do not.
Q Making a comment that daddy had grabbed -MS. NEVILLE: I’m going to object to entering any
statements about what the children -MS. LOVETT ENGEL: Okay.
THE COURT: He’s already answered it. He said he did
not.
Go ahead, continue.
Q (BY MS. LOVETT ENGEL) Okay. And you said that
the phone was in your custody after the 30th of
October?
A I received the phone on Wednesday, October 30th, at
about 4:15 p.m.
Q Okay. And do you remember me coming in before that,
and letting you know that he had distributed my
personal photographs against my knowledge and
without my permission?
A I do remember talking to you about that.
Q And do you remember me asking you if there was
something you could do to stop this, because he had
also had other people’s photos on my phone that he was
sending out?
A I believe -- yes, I do. I didn’t know if there was anything
I could do about that or not.
App. 45
Q Okay.
A The phone was -- to my knowledge, it was his.
Q Okay. And the way it works with property, if he pays
for it but it’s in my possession for the last four years, is
it still -- is what I’m just asking.
A I was -- I was told that because he was paying -- he
bought the phone and because he was paying for the
service, that it was technically his phone.
Q Okay.
MS. LOVETT ENGEL: Okay, that’s all I’ve got.
Thank you.
THE COURT: Do you have anything further?
MS. NEVILLE: Nothing further.
THE COURT: I’ve got a couple questions, and I think
it’s important, and I want to understand.
What interest would the DCI have in this phone? Why
was that even a consideration?
THE WITNESS: When we get a phone, I don’t know
how to get into it without a password. They do -THE COURT: Why would you want to get into it?
THE WITNESS: For evidence.
App. 46
Derek told me there were, by his words, hundreds of
contacts with other men.
THE COURT: Is that illegal?
THE WITNESS: No. Pictures of nude photos of her that
she had texted to these other men.
THE COURT: Is that illegal?
THE WITNESS: I don’t know. Is sexting illegal?
THE COURT: For adults, as far as I know.
I’m just trying to figure out why in the world the DCI
was even a consideration.
THE WITNESS: That’s what Chief -- Chief Speck
advised me to do.
THE COURT: Well, this is a whole different matter,
but that whole conversation blows my mind with an adult
person.
And the other thing I’m trying to figure out -- and this
is for you as well -- so if a married couple -- if my wife has
a phone, and maybe I pay the bill, we’ve been married for
20 years, if I abuse her and take her phone and destroy it,
she doesn’t have any right to that phone? That’s not
preventing a call, since it’s my property?
THE WITNESS: Well, while she was at the office, she
had --
App. 47
THE COURT: No, I’m just trying to figure out what the
thought process was on this phone.
I guess I’m going to leave it at this: If I was you, I
would talk to your State’s Attorney, because I think this
whole thing was -- this part -- you don’t have to answer.
I’m just saying, I think you’re getting bad advice.
THE WITNESS: Okay.
THE COURT: All right, we will continue.
You can step down.
(The witness was excused.)
THE COURT: You can call your next witness.
MS. NEVILLE: Thank you, Your Honor.
We’d call Nicole Gortmaker.
--oOo-NICOLE GORTMAKER,
called as a witness in said cause, being duly sworn by the
Court to tell the truth, the whole truth, and nothing but
the truth, testified as follows:
--o0o-DIRECT EXAMINATION BY MS. NEVILLE
Q Hi, Nicole. I’m Melissa Neville. I’m Derek Engel’s
attorney.
App. 48
Can you state your full name, please?
A Nicole Lynn Gortmaker.
Q And how do you know Derek?
*
*
*
[pp.147-149]
them that the two of you do. It is sad.
Now, there’s not a box for me to check to take these
kids from you; but if there was, I’d consider it because they
deserve better.
So if you love them, the two of you are going to figure
out how to treat each other with respect.
You can hate each other, that’s fine. It’s part of life. But
you don’t have to hate each other in front of your children.
In fact, if you want to turn this around -- Father’s Day
is coming up, Mother’s Day is coming up, your birthdays
are coming up -- say to your kids, “Hey, do you need 10
bucks to get your mom a present?” Let them buy the
present. Don’t say one mean word. Let them deliver it.
Now, you can hope she chokes on it, but let the kids not
know that. And you can do the same thing going the other
way. But you guys got to find a way that, in front of your
children, that they learn it’s okay to love the two of you. So
this isn’t divorce court, this isn’t a custody matter; but that
is the first thing that just hit me in the face.
App. 49
As I go through this record, I will just be honest with
you: You taking her phone just blows my mind. It’s marital
property. You’ve been married for years. It’s her phone for
at least four, I think I heard the testimony. And then
somehow, you think, “Well, I pay the bill, so it’s my phone.”
That blows me away that that’s a thought process in this
day and age.
So in this matter, I am going to issue a protection order.
First, I do find that stalking has taken place. I think
that you have gone out of your way to inflict
embarrassment and shame and revenge on your ex. And I
specifically find that by verbal and electronic and digital
media, that you have repeatedly followed and harassed
your ex.
I look at the e-mail from Stephanie Pochop, who is the
attorney for the Petitioner in Exhibit A. And the things
that you’ve said to her and did, and in contacting her exemployer, when she’s not even working there anymore,
that is for nothing less than vengeance and revenge. You
weren’t trying to help or save anybody. So I do find that
stalking has taken place.
And by your own testimony, you have admitted to
violence on your ex -- or soon-to-be ex. And I find that
admission to be credible.
You are therefore commanded not to harass, follow the
Petitioner, or make any credible threat with the intent to
place her in fear of death or bodily injury.
App. 50
You are not to harass her by means of verbal,
electronic, digital media, mechanical, telegraphic, or
written communication, or cause any injury.
You shall not come within a distance of 150 feet of her
or her residence.
You cannot make any phone calls, e-mails, third-party
contact, including correspondence, direct or indirect, that
are not -- and let me ask this question, because these
would be evidence: Are the parties okay with, as it relates
to the children, that there be text messages? Obviously, if
it’s not the children, that would be a violation and you
could be arrested; but there would be proof of it.
MS. NEVILLE: I would prefer that the parties enroll in
something like Our Family Wizard, Your Honor. It’s just
too easy to fire off a text one way or the other.
THE COURT: Are you in agreement with that?
MS. LOVETT ENGEL: Absolutely.
THE COURT: And is your client in agreement with
that?
MS. NEVILLE: Yes, Your Honor.
THE COURT: And it’s “R,” as in just the letter “R”?
MS. NEVILLE: “Our.”
THE COURT: “Our”?
App. 51
MS. NEVILLE: “Our Family Wizard.” That’s an app
that the parties can post everything from schedules, to
medical
*
*
*
App. 52
APPENDIX F
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
3:21-CV-3020
[Filed January 31, 2022]
______________________________________
SENECA LOVETT ENGEL,
)
Plaintiff,
)
)
vs.
)
)
DEREK ENGEL; MILLER POLICE
)
DEPARTMENT, CITY OF MILLER,
)
SOUTH DAKOTA, AND JIM HENSON, )
SHANNON SPECK, AND VARIOUS
)
JOHN AND JANE DOES OF THE,
)
MILLER POLICE DEPARTMENT,
)
OFFICIALLY AND INDIVIDUALLY; )
JOINTLY AND SEVERALLY,
)
Defendants.
)
______________________________________ )
MOTION FOR JUDICIAL NOTICE
COMES NOW, the above-named Plaintiff by and
through her undersigned attorney and, pursuant to Fed. R.
Evid. 201(c)(2), hereby moves the Court to take judicial
App. 53
notice of the following records in the action filed in the
Circuit Court for the Third Judicial Circuit, Hand County,
South Dakota, entitled Seneca Lovett Engel, Petitioner, vs.
Derek Engel, Respondent, 29TPO20-000001:
1. Petition and Affidavit for a Protection Order
2. Protection Order Hearing Transcript
3. Order for Protection
This Motion is supported by the pleadings and files
herein; and the Affidavit of Tucker J. Volesky, to which
these court documents are attached, and which is served
and filed herewith.
Dated the 31st day of January, 2022.
/s/___________________________
Tucker J. Volesky
Attorney for the Plaintiff
356 Dakota Ave. S.
Huron, South Dakota 57350
(605) 352-2126
Tucker.volesky@outlook.com
App. 54
APPENDIX G
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
3:21-CV-3020
[Filed October 19, 2021]
______________________________________
SENECA LOVETT ENGEL,
)
Plaintiff,
)
)
vs.
)
)
DEREK ENGEL; MILLER POLICE
)
DEPARTMENT, CITY OF MILLER,
)
SOUTH DAKOTA, AND JIM HENSON, )
SHANNON SPECK, AND VARIOUS
)
JOHN AND JANE DOES OF THE,
)
MILLER POLICE DEPARTMENT,
)
OFFICIALLY AND INDIVIDUALLY; )
JOINTLY AND SEVERALLY,
)
Defendants.
)
______________________________________ )
COMES NOW, the above-named Plaintiff by and
through her undersigned attorney, and for her claims and
causes of action against Defendants, demands a jury trial
and states and alleges as follows:
JURISDICTION AND VENUE
App. 55
1.
That this Complaint asserts a civil action arising
under federal law for which this Court has original
jurisdiction pursuant to 28 U.S.C. Section 1331 and
28 U.S.C. Section 1343.
2.
That all other claims asserted in this Complaint are
so related to the claim within such original
jurisdiction that they form part of the same case or
controversy under Article III of the United States
Constitution such that this Court has supplement
jurisdiction pursuant to 28 U.S.C. Section 1367.
3.
That the events giving rise to the causes of action
alleged in this Complaint occurred in Hand County,
South Dakota.
PARTIES
4.
That PLAINTIFF SENECA LOVETT ENGEL, a
black female, at the times relevant to this
Complaint was a resident of Hand County, South
Dakota and is now a resident of Beadle County,
South Dakota.
5.
That, upon information and belief, DEFENDANT
DEREK ENGEL is a resident of Hand County,
South Dakota.
6.
That, upon information and belief, DEFENDANT
MILLER POLICE DEPARTMENT (hereinafter
sometimes referred to as “Miller PD”) is a law
enforcement agency of the CITY OF MILLER,
App. 56
SOUTH DAKOTA, a municipality chartered under
the Constitution of the State of South Dakota and
doing business in Miller, Hand County, South
Dakota.
7.
That, upon information and belief, DEFENDANT
JIM HENSON is a law enforcement officer
employed by Defendant Miller Police Department of
the City of Miller, South Dakota.
8.
That, upon information and belief, DEFENDANT
SHANNON SPECK is employed as the Chief of
Police by Defendant Miller Police Department of the
City of Miller, South Dakota.
9.
That, upon information and belief, various JOHN
AND JANE DOES, DEFENDANTS, are employed
by Defendant Miller Police Department, City of
Miller, South Dakota, to perform certain duties
including law enforcement and the supervision of
officers employed by the Miller Police Department.
10.
Defendant Miller Police Department, City of Miller,
South Dakota and its agents, servants and/or
employees, or such other individuals and/or officials
as may have been hired by, contracted with or
otherwise directed, authorized, or controlled by, the
Defendant governmental entity, whether in their
official and/or individual capacities, Jointly and
Severally as to each and all defendants herein.
App. 57
FACTS
11.
Plaintiff restates and realleges the foregoing
allegations of paragraphs 1 through 10 as though
fully set forth herein.
12.
In late October 2019, Defendant Derek Engel heard
from a co-worker that his wife, the above-named
Plaintiff, was rumored to be involved in extramarital activity.
13.
On October 29, 2019, Defendant Engel took
Plaintiff’s phone from her car while she was grocery
shopping at a local store in Miller, South Dakota.
While Plaintiff and Defendant Engel had been
married for approximately three years by this time,
Plaintiff’s phone was associated with a number she
had been using the past eight years.
14.
Later that day, Plaintiff and Defendant Engel met
at the Miller airport and began arguing over the
phone and Plaintiff’s alleged infidelity. A physical
altercation ensued wherein Defendant Engel
grabbed Plaintiff by the neck and slammed her
against the side of a pick-up truck resulting in
Plaintiff’s coat to be ripped, finger to be cut and
bloodied, and pain in her neck and back. The
couples’ four year old son was present during the
altercation.
15.
Upon being released from Defendant Engel’s grasp,
Plaintiff immediately proceeded to the Miller Police
Department to report the incident as Defendant still
App. 58
had possession of Plaintiff’s phone which prohibited
Plaintiff from calling 911. Defendant Engel followed
Plaintiff to the police station in a separate vehicle.
En route, Defendant Engel called Defendant Jim
Henson, an officer for Defendant Miller Police
Department, to advise that he and Plaintiff would
soon be arriving to discuss a domestic situation.
16.
At the police station, Defendant Engel admitted to
Defendant Henson that he took the phone from
Plaintiff’s car while she was grocery shopping and
that he was refusing to give it back.
17.
Defendant Engel also described the domestic
altercation occurring at the airport admitting to
Defendant Henson that he grabbed and pushed
Plaintiff.
18.
Thereafter, Defendant Henson spoke with Plaintiff
who reported that Defendant Engel had assaulted
her by grabbing her neck and slamming her against
a truck at the airport. Plaintiff also reported other
instances of physical domestic abuse occurring
repeatedly throughout the relationship.
19.
Plaintiff further reported that Defendant Engel had
stolen her phone and requested that law
enforcement take action to get the phone back and
pursue the domestic assault as a criminal matter.
Plaintiff advised Defendant Henson that evidence of
domestic abuse was contained on her phone that
App. 59
Defendant Engel had in his possession and was
refusing to return to Plaintiff.
20.
Plaintiff and Defendant Engel’s son also reported to
Defendant Henson that “daddy grabbed and pushed
mommy.”
21.
Defendant Henson consulted with Defendant
Shannon Speck, Chief of the Miller Police
Department, regarding how to proceed in light of
the situation.
22.
Thereafter, Defendant Miller Police Department
failed to take any action to retrieve Plaintiff’s
phone, and failed to properly act upon, investigate,
and pursue Plaintiff’s report of domestic assault.
23.
Defendant Engel was allowed to leave the Miller
Police Station on October 29, 2019, with Plaintiff’s
phone in his possession. As a result, Defendant
Engel was able to gain full access to Plaintiff’s social
media accounts and the email associated with those
accounts as that information was stored on the
phone.
24.
Due to law enforcement inaction, Plaintiff went to
a nearby town to stay with a friend out of fear for
her safety.
25.
The next day, October 30, 2019, Plaintiff was
granted a temporary protection order against
Defendant Engel.
App. 60
26.
After taking possession of Plaintiff’s phone on
October 29, 2019, Defendant Engel began accessing
Plaintiff’s social media accounts pretending to be
Plaintiff while contacting third parties,
impersonated Plaintiff on Snapchat, Facebook, and
Instagram, and changed Plaintiff’s passwords so
that Plaintiff could no longer access the accounts.
27.
Defendant Engel also accessed other content on
Plaintiff’s phone including extremely personal,
private photographs, intimate in nature, of
Plaintiff’s body exposed in manners sexual and
erotic as well as intimate clothing, and personal
messages containing information about Plaintiff’s
private life, as well as that of her friends and
family. Defendant Engel then sent this previously
described content to others including Plaintiff’s
family, friends, and others in the Miller community
and elsewhere, including to individuals Plaintiff did
not know personally.
28.
Plaintiff further reported the foregoing allegation of
paragraphs 23 through 27, as well as those
contained in paragraphs 29 through 35 below, to
Defendant Henson on October 30, 2019, and
Defendant Speck on November 5 and 6, 2019.
29.
Despite Plaintiff’s continued reports of domestic
violence and abuse as well as Plaintiff’s reports of
identity theft and cyber sexploitation, the Miller PD
failed to properly act upon and investigate the
reports and pursue the perpetrator; the Miller PD
App. 61
failed to interview witnesses, prepare an incident
report, follow-up with an investigation, afford crime
victim rights, and make an arrest.
30.
Coinciding with the previously described
disclosures, Defendant Engel contacted Plaintiff’s
friends, family, co-workers, fellow church goers,
professional and community service associates, and
employers as well as school staff; Defendant Engel
made false allegations to said third parties that
Plaintiff is a drug addict and prostitute with mental
health issues and federal criminal charges pending,
among other false statements.
31.
During the same time, Defendant Engel contacted
Hand in Hand Daycare, where Plaintiff was a board
member at the time, and told the director that
Plaintiff was a prostitute with a drug habit and
would be arrested and charged that day. As a result,
Plaintiff was pressured to resign from the board.
32.
During the same time, Defendant Engel contacted
Trinity Lutheran Church, where Plaintiff was a
Sunday school teacher, and told the pastor that
Plaintiff was a prostitute with a drug habit and
would be arrested on federal charges imminently.
Although Plaintiff had been a teacher in the Sunday
School Program for two years, assisted with other
programs and camps, and sat on the Trinity
Lutheran Women’s Council Pre-Lenten Tea
Committee, Plaintiff was pressured to resign from
these activities as a result.
App. 62
33.
During the same time, Plaintiff was engaged in an
EEOC complaint against her former employer the
Good Samaritan Center and was being represented
by legal counsel. Defendant Engel contacted
Plaintiff’s legal counsel as well as the EEOC
investigators to falsely allege that Plaintiff was a
mentally unstable drug addict and prostitute with
federal criminal charges pending and that Plaintiff
used a sample of her child’s urine to pass a
mandatory employment drug test. As a result,
Plaintiff’s settlement on her EEOC complaint was
diminished greatly.
34.
Defendant Engel proceeded to engage in a course of
conduct involving willful, malicious, and repeated
harassing and threatening contacts to Plaintiff,
including pictures of dead animals, causing Plaintiff
to fear for her life and safety.
35.
Defendant Engel persisted in said conduct
intentionally setting off Plaintiff’s car alarm and
engaging in verbally abusive threats against
Plaintiff when exchanging custody of the children as
well as at Plaintiff’s place of employment and
residence. As a result, Plaintiff was in a high state
of fear constantly checking the locks on her doors as
well as all the rooms, closets, and the shower
whenever returning home, and eventually, Plaintiff
was forced to seek employment where she could
work from home due to the continuing threat posed
by Defendant Engel.
App. 63
36.
On January 21, 2020, Plaintiff was granted another
temporary protection order restraining Defendant
Engel from “following or harassing Petitioner, or
making any credible threat with the intent to place
Petitioner in reasonable fear of death or bodily
injury, SDCL 22-19A-1 ; [ and] harassing Petitioner
by means of any verbal, electronic, digital media,
mechanical, telegraphic, or written communication,
SDCL 22-19A-1.” After a contested hearing held on
March 23, 2020, where Plaintiff appeared
personally and without counsel, and Defendant
appeared personally and was represented by
counsel, the circuit court extended the protection
order against Defendant Engel.
37.
As a result, Plaintiff suffered physical injury, pain
and suffering, great mental anguish and emotional
distress, loss of enjoyment of life, harm to economic
reputational and dignitary interests, a deprivation
of constitutional and statutory rights, and is it
entitled to general, special, and other damages.
CAUSES OF ACTION
I. ASSAULT AND BATTERY – as to Defendant
Derek Engel
38.
Plaintiff restates and realleges the foregoing
allegations of paragraphs 1 through 37 as though
fully set forth herein.
39.
Defendant Engel intentionally acted to put Plaintiff
under a reasonable apprehension of immediate
App. 64
harmful or offensive contact which did create such
a reasonable apprehension in Plaintiff.
40.
Defendant Engel intentionally made harmful and
offensive contact to Plaintiff’s person.
41.
Defendant Engel’s actions against Plaintiff were
committed willfully, wantonly and maliciously.
42.
As a result, Plaintiff suffered physical injury,
mental anguish and emotional distress, pain and
suffering, and general, special, and other damages.
II. DEFAMATION – as to Defendant Engel
43.
Plaintiff restates and realleges the foregoing
allegations of paragraphs 1 through 42 as though
fully set forth herein.
44.
Defendant Engel made defamatory statements of
and concerning Plaintiff and published those
statements to third persons.
45.
Defendant Engel made and published the
defamatory statements of and concerning Plaintiff
intentionally and maliciously.
46.
As a result, Plaintiff suffered harm to her economic
and dignitary interests, pecuniary loss, reputational
harm, and other general, special, and other
damages in an amount to be determined by a jury at
trial.
App. 65
III.
INVASION OF PRIVACY – as to all
Defendants
47.
Plaintiff restates and realleges the foregoing
allegations of paragraphs 1 through 46 as though
fully set forth herein.
48.
Defendants intruded upon Plaintiff’s private affairs
and seclusion.
49.
Defendants published content concerning Plaintiff
intending to place Plaintiff in a false light. Said
publication was highly offensive under the
circumstances and done maliciously.
50.
Defendants made public disclosures of private
matters concerning Plaintiff. Said public disclosures
were highly offensive to ordinary sensibilities and
done maliciously.
51.
Defendants’ conduct was the proximate and actual
cause of the invasion of Plaintiff’s interest in
privacy.
52.
As a result, Plaintiff suffered emotional distress and
mental anguish, harm to her economic, dignitary,
pecuniary, and reputational interests, and other
damages, in an amount to be determined by the
jury.
App. 66
IV.
INTEN TIO N AL
IN FLICTION
OF
EMOTIONAL DISTRESS – as to all
Defendants
53.
Plaintiff restates and realleges the foregoing
allegations of paragraphs 1 through 52 as though
fully set forth herein.
54.
Defendants’ acts and failures to act amount to
extreme and outrageous conduct.
55.
Defendants’ acts and failures to act were committed
intentionally or recklessly.
56.
Defendants’ acts and failures to act caused Plaintiff
severe emotional distress.
57.
As a result, Plaintiff suffered severe emotional
distress and other damages in an amount to be
proved at trial.
V. NEGLIGENCE/NEGLIGENT INFLICTION OF
EMOTIONAL DISTRESS – as to Defendants
Miller Police Department, City of Miller, South
Dakota, Henson, Speck and various John and
Jane Does of the Miller Police Department,
officially and individually
58.
Plaintiff restates and realleges the foregoing
allegations of paragraphs 1 through 57 as though
fully set forth herein.
59.
Defendants owed a duty to Plaintiff by virtue of a
special relationship; Plaintiff was a crime victim
App. 67
who reported domestic
cybercrime to Defendants.
assault,
theft,
and
60.
Defendants owed a duty to investigate, pursue, and
apprehend the perpetrator of the criminal violations
committed against Plaintiff.
61.
Defendants’ owed Plaintiff special, statutory duties
pursuant to SDCL 23-3 and SDCL 25-10 because
Plaintiff was a victim of domestic abuse.
Specifically, SDCL 25-10-36 provides: “If any law
enforcement officer who is responding to domestic
abuse call has probable cause to believe that a crime
has been committed, the law enforcement officer
shall arrest the person who is suspected of
committing the crime and make a complete report
of any action taken.”
62.
Defendants affirmatively acted to receive reports
from Plaintiff of domestic violence and other crimes
committed by Defendant Engel.
63.
Defendants had actual knowledge that Plaintiff was
a victim of domestic violence and other crimes and
that Defendant Engel was the perpetrator.
64.
Plaintiff reasonably relied upon Defendants to
protect her from Defendant Engel, and to pursue
the criminal investigation, arrest, and prosecution
of Defendant Engel.
App. 68
65.
Defendants failed to meet their special, statutory
duties owed to Plaintiff under SDCL 23-3 and SDCL
25-10, and under Marcy’s Law.
66.
Defendants’ actions and/or inaction increased the
risk of harm posed to Plaintiff by Defendant Engel.
67.
Defendants failed to investigate, pursue, and
apprehend the Plaintiff’s perpetrator, which allowed
Plaintiff’s perpetrator to engage in further acts
against the Plaintiff, causing Plaintiff severe
emotional distress.
68.
Defendants’ actions and/or inaction contributed to,
or was a substantial factor in causing, Defendant
Engel’s illegal and tortious conduct including, but
not limited to, harassment, identity theft,
defamation, and invasion of privacy.
69.
As a result, Plaintiff suffered emotional distress and
mental anguish and other damages, general and
special, and is entitled to such and other additional
damages in an amount to be determined by a jury at
trial.
App. 69
VI.
NEGLIGENT
HIRING,
TRAINING,
SUPERVISION, AND RETENTION – as to
Defendants Miller Police Department, City of
Miller, South Dakota, Henson, Speck and
various John and Jane Does of the Miller
Police Department, officially and individually
70.
Plaintiff restates and realleges the foregoing
allegations of paragraphs 1 through 69 as though
fully set forth herein.
71.
At all times relevant to the events described in this
Complaint, Defendants owed a duty of care to make
a reasonable inquiry into the background of their
employees including, Defendant Henson and
various John and Jane Does, to determine their
fitness in the performance of their duties.
72.
At all times relevant to the events described in this
Complaint, Defendants owed a duty of care to
properly and reasonably train their employees to,
among other things, observe and enforce South
Dakota law, respond to reports of crime, protect
victims of crime, and pursue perpetrators of crime.
73.
At all times relevant to the events described in this
Complaint, Defendants owed a duty of care to
properly and reasonable supervise their employees
to, among other things, observe and enforce South
Dakota law, respond to reports of crime, protect
victims of crime, and pursue perpetrators of crime.
App. 70
74.
At all times relevant to the events described in this
Complaint, Defendants owed a duty of care to
properly and reasonably retain their employees
who, among other things, observe and enforce South
Dakota law, respond to reports of crime, protect
victims of crime, and pursue perpetrators of crime.
75.
Defendants, in failing to properly and reasonably
train, hire, supervise, and /or retain its employees,
agents, and servants, breached said duties.
76.
All acts and/or omissions by the Defendants were
committed within the authority of and within the
scope of their employment within the respective
governmental entity employer, as well as their
individual capacity.
77.
Defendants’ actions and/or omissions, and the
consequential results therefrom, were the direct and
proximate cause of the statutory and constitutional
violations, and injuries and damages suffered by
Plaintiff.
78.
As a result, Plaintiff has been damaged in an
amount to be determined by a jury at trial.
VII.
CONSPIRACY – as to all Defendants
79.
Plaintiff restates and realleges the foregoing
allegations of paragraphs 1 through 78 as though
fully set forth herein.
80.
42 U.S.C. § 1985 provides a cause of action for
Conspiracy to interfere with civil rights.
App. 71
81.
Defendants participated in a conspiracy-causing
damage to Plaintiff.
82.
Defendants acted in furtherance of the conspiracy
for the purpose of depriving, either directly or
indirectly, Plaintiff equal protection of the laws.
83.
Defendants were aware of previous reports of
domestic abuse made by alleged victims and failed
to properly act thereon in violation of the rights of
those victims.
84.
Defendants conspired to cover-up and ignore reports
of domestic violence made by alleged victims, thus
endangering certain populations of South Dakota.
85.
Defendants engaged in a policy and custom of
ignoring reports of domestic violence in violation of
victims’ rights.
86.
Defendants participated in violating Plaintiff’s
statutory and constitutional rights.
87.
Defendants were directly responsibility for the
violations of Plaintiff’s statutory and constitutional
rights.
88.
Defendants had actual knowledge of and were
deliberately indifferent to and tacitly authorized the
acts violative of Plaintiff’s statutory and
constitutional rights.
89.
Defendants’ actions and/or omissions were the
direct and proximate cause of the statutory and
App. 72
constitutional violations, and injuries and other
damages, suffered by Plaintiff.
90.
As a result, Plaintiff was injured in her person and
property, and suffered a deprivation of her statutory
and constitutional rights.
91.
Plaintiff suffered damages, general and special, and
is entitled to such and other damages in an amount
to be determined by a jury at trial.
VIII. 42 U.S.C. § 1983 – as to all Defendants
92.
Plaintiff restates and realleges the foregoing
allegations of paragraphs 1 through 91 as though
fully set forth herein.
93.
Defendants operated under the statutes, usage,
custom, ordinances and regulations, and otherwise
under the color of law, of the State of South Dakota,
the City of Miller and other applicable local, state,
and federal Laws and/or Guidelines, and deprived
Plaintiff of constitutional and statutory rights,
privileges, and immunities, including, but not
limited to, rights to equal protection, due process,
privacy, property, and liberty.
94.
Defendants acted with intentional, deliberate, or
reckless indifference to Plaintiff’s rights.
95.
Defendants engaged in willful and wanton conduct.
96.
Defendants’ actions and/or omissions were the
direct and proximate cause of Plaintiff’s damages.
App. 73
97.
Defendants had actual knowledge of and were
deliberately indifferent to and tacitly authorized the
acts violative of Plaintiff’s statutory and
constitutional rights, and Defendants have engaged
in such policy and custom.
98.
Defendants caused Plaintiff to suffer flagrant
violations of her constitutional rights including, but
not limited to, equal protection, due process,
privacy, property, and liberty. Existing remedies do
not redress her injuries, and equitable relief is
wholly inadequate to protect Plaintiff’s rights or
redress her injuries.
99.
Plaintiff suffered emotional distress, mental
anguish, reputational harm, violations of her basic
human dignity, deprivations of her constitutional
and statutory rights and is entitled to damages,
general, special, and other, in an amount to be
determined by a jury at trial.
100.
Plaintiff is also entitled to recover from the
Defendants reasonable attorney’s fees under 42
U.S.C. § 1988.
WHEREFORE, Plaintiff prays for judgment against
Defendants as follows:
(1)
Judgment against each and all of the
Defendants, jointly and severally against each,
in the total sum to be determined by a jury at
trial;
App. 74
(2)
Award to the Plaintiff for actual expenses,
attorney fees and costs, and prejudgment and
post-judgement interest on any special and any
compensatory damages;
(3)
For such monetary compensation as shall fully
compensate Plaintiff for the physical and mental
pain, suffering, and anguish and emotional
distress, and damage to economic and dignitary
interests, as well as pecuniary loss and
reputational harm, in an amount to be
determined by the jury in this case;
(4)
For an award of exemplary damages against
Defendants, plus such interest as may be
awarded by the jury;
(5)
For costs and disbursements herein;
(6)
For an award of damages for compensatory,
special, pecuniary, punitive and other damages,
including interest, against each and every
Defendant, whether officially and /or
individually, and jointly and severally as to each,
in a sum to be determined by the jury in this
case; and
(7)
For such other and further relief as is found to
be appropriate in this matter.
App. 75
Dated the 19th day of October, 2021.
/s/___________________________
Tucker J. Volesky
Attorney for the Plaintiff
356 Dakota Ave. S.
Huron, South Dakota 57350
(605) 352-2126
Tucker.volesky@outlook.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.