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

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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[Unpublished]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

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