Bergeson v. State of South Dakota et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
FILED
JAN 2 5 2GZ2
NEIL DENNIS BERGESON,JR., I:21-CV-01026-CBK
Plaintiff,
MEMORANDUM OPINION
vs. AND ORDER
JADEN CARLSON,
Defendant.
I. BACKGROUND
Mr. Neil Bergeson, Jr.("plaintiff) filed a pro se action in this Court against the
State of South Dakota, South Dakota Fifth Judicial Circuit Judge Cullen McNeece,
Roberts County State's Attorney Dylan Kirchmeier, Sisseton-Wahpeton Oyate Law
Enforcement Tribal Officer Jaden Carlson, Deputy Roberts County SheriffZac
Angerhofer, Roberts County Sheriff Tyler Apple, and the South Dakota State B.A.R.
(sic) Association (whose actual name is the State Bar of South Dakota). Doc. I. This
Court has already dismissed the State of South Dakota, the State Bar of South Dakota,
State's Attorney Kirchmeier, Deputy Sheriff Angerhofer, Sheriff Apple, and Judge
McNeece from this matter. Docs. 18, 21, 23. This Court has denied plaintiffs motion
for defaultjudgment against Officer Carlson. Doc. 22. The plaintiff alleges defendants
violated the Administrative Procedures Act, 5 U.S.C. § 551 e/ seq., the Tucker Act, 28
U.S.C. §§ 1346, 1491, and the Foreign Agent Registration Act, 22 U.S.C. § 611, e? seq.
Because his claims do not venture close to being grounded in fact or merit, let alone
pierce the tribal sovereign immunity applicable in this matter, all claims against
defendant Carlson should be dismissed.
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Officer Carlson filed a motion on December 10, 2021 (Doc. 25), for leave to file a
responsive pleading outside the standard filing deadline. This request stems from
extreme toxic mold growth and an emergency move ofthe Sisseton-Wahpeton Gyate
Law Enforcement Department building, which led to a delay in Carlson's superior
passing along Bergeson's Summons in a timely manner. Defendant subsequently filed a
motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(l),(6) on December
13, 2021. Doc. 10. Bergeson has not filed a responsive briefto either motion. However,
Bergeson did try to seek an appeal ofthe Court's previous memorandums and orders to
the United States Court of Appeals for the Eighth Circuit on December 21, 2021. Doc.
31. But because these motions filed by Carlson remained outstanding, Bergeson's suit
was not final; accordingly, his request for review was treated as an interlocutory appeal.
The Court of Appeals dismissed Bergeson's appeal for lack ofjurisdiction on January 3,
2022, presumably because this litigation was still commencing, and plaintiffs appeal did
not qualify for interlocutory adjudication.
Carefully scrutinizing the record brought by Bergeson, this matter appears to be
derived out of fimstration stemming from a state prosecution of him for Driving Under the
Influence, as well as Unauthorized Ingestion of a Controlled Substance, in Roberts
County, Fifl:h Judicial Circuit, South Dakota. South Dakota Circuit Court, Fifth Judicial
Circuit, Roberts County, 54CRI21-000323. I take judicial notice ofthe South Dakota
state court records involving plaintiff, which are available through the Unified Judicial
System's eCourts portal. The charges remain pending in Roberts County. Mr. Bergeson
appears upset that Officer Carlson allegedly "unlawfully detained" him because he is a
"non-tribal member." COMPLAINT,Doc. 1 at 9. Plaintiff proceeds to allege that "several
tribal cops physically assulted [5/c] and detained and handcuffed him. This all part ofa
RICO SCAM perpetrated by the Roberts County Sheriffs Office and Prosecutor, and
SWST Tribal Police." Id. Bergeson takes issue with the officer for not "stand[ing]
down" during their interaction and for calling the County Sheriffs Office to report the
incident, which resulted in "pushing him through the courts as most sheeple dont [5/c]
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know any better!"' Id. Bergeson proceeds with what can only be referred to as nonsense.
The plaintiff complains that the state judge and prosecution used "word-smithing and or
legalese" to wrongfully induce him into "taking the charges." Id. at 6. The plaintiff
proceeds to make further bold claims before this Court, namely that the Fifth Judicial
Circuit and the state's attorney could not hear or prosecute his case due to their failure to
register as part ofthe "British Atoned Registry," despite no requirement that our nation's
judges and lawyers swear fealty to the Crown. No such obligation has been upon our
legal class since 1776.
Mr. Bergeson is on a quixotic campaign to conjure new meanings into federal
statutes to protest his Roberts County proceedings. This includes fanciful assertions of a
British Atoned Registry requiring attorneys to register under the Foreign Agents
Registration Act to offering state bar associations newfound collective liability for any
alleged indiscretion of its members. This Court will not waste judicial resources tackling
such claims conjured by plaintiffs imagination. The Court takes legitimate pro se
matters seriously and awards them the deference and consideration they deserve. But this
is no such case. Rather, Mr. Bergeson seeks to use the federal court to vent fmstrations
about a state indictment from the Fifth Judicial Circuit. This Court is no such vehicle to
make farcical claims for millions of dollars as punishment for tribal law enforcement
fulfilling their duties.
The plaintiff appears to have recycled meritless "legal nonsense" fi-om a prior
litigant before this Court. See Fonder v. South Dakota. 2021 WL 4710781, at *1 (D.S.D.
Oct. 8, 2021). As other defendants in this matter have rightly noted,"the language was
essentially copied and pasted." Brief in Support of Motion to Dismiss Charges
Against Defendants Kirchmeier, Angerhofer,and Apple, Doc.9 at 3. These
rehashed arguments remain "utter nonsense." Fonder. 2021 WL 4710781, at *2. Like in
Fonder v. United States, this matter should be dismissed by this Court.
'"Sheeple" refers to "people who are docile, compliant, or easily influenced." Sheeple, Merriam-Webster
Online Dictionary, https://www.merriam-webster.com/dictionary/sheeple (last visited Jan. 6,2022).
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II. DISCUSSION
A. Legal Standard
On a motion pursuant to Rule 12(b)(1) challenging whether the Court holds
subject matter jurisdiction to hear the claims brought, the party asserting jurisdiction
holds the burden of proof. Magee v. United States. 9 F.4th 675,680(8th Cir. 2021)
(citins Moss v. United States. 895 F.3d 1091, 1097(8th Cir. 2018)). Questions of
sovereign immunity should be disposed ofon motions to dismiss for lack of subject
matter jurisdiction. See Rupp v. Omaha Indian Tribe. 45 F.3d 1241, 1244(8th Cir. 1995)
("Sovereign immunity is a jurisdictional question"){citins Puvallup Tribe, Inc. v.
Washington Game Dep't. 433 U.S. 165, 172(1977)).
'"Indian tribes have long been recognized as possessing the common-law
immunity from suit traditionally enjoyed by sovereign powers.'" Stanko v. Oglala Sioux
Tribe, 916 F.3d 694,696 (8th Cir. 2019)(quotins Santa Clara Pueblo v. Martinez,436
U.S. 49, 58 (1978)). See Santa Clara Pueblo, 436 U.S. at 55 (Indian tribes are "distinct,
independent political communities, retaining their original natural rights in matters of
local self-government."). The Sisseton-Wahpeton Oyate of the Lake Traverse
Reservation ("the Tribe") is a federally recognized tribe. S^ Indian Entities
Recognized and Eligible to Receive Services from the United States Bureau
OF Indian Affairs, 86 Fed. Reg. 7,554, 7,557 (Jan. 29,2021). It is "undisputed" that
their sovereign immunity "may extend to tribal agencies." Hagen v. Sisseton-Wahneton
Cmty. Coll., 205 F.3d 1040, 1043(8th Cir. 2000){citing Dillon v. Yankton Sioux Tribe
Hous. Auth., 144 F.3d 581, 583(8th Cir. 1998)). Accordingly, as a matter offederal law,
the Tribe or its agencies can only be subject to suit if Congress has authorized the suit or
ifthe tribe has waived its immunity. Fort Yates Pub. Sch. Dist. No.4 v. Murphv ex rel.
C.M.B., 786 F.3d 662,670(8th Cir. 2015). There has been no waiver.
When deciding a motion pursuant to Rule 12(b)(1), this Court must distinguish
between "facial attacks" and "factual attacks." Crovle bv and Through Crovle v. United
States, 908 F.3d 377, 380(8th Cir. 2018){citins Qsbom v. United States. 918 F.2d 724,
729 n.6 (8th Cir. 1990)). For facial attacks, district courts "look[] only to the face ofthe
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pleadings," whereas for factual attacks,"matters outside the pleadings" may be
considered. Id (auotins Osbom.918 F.2d at 729 n.6). Here, Bergeson's quixotic
attempts to litigate fall squarely under facial attacks, where this Court must examine if
plaintiff has "'sufficiently alleged a basis of subject matter jurisdiction.'" Branson Label.
Inc. V. City of Branson, Missouri. 793 F.3d 910,914(8th Cir. 2015)(puotins Menchaca
V. Chrysler Credit Corp.,613 F.2d 507, 511 (5th Cir. 1980)). In its review,'"the non-
moving party receives the same protections as it would defending against a motion
brought under Rule 12(b)(6).'" Carlsen v. GameSton. Inc.. 833 F.3d 903,908(8th Cir.
2016)(quotins Osbom. 918 F.2d at 729 n.6).
It is well known that complaints by pro se plaintiffs must "be given liberal
construction." Solomon v. Petrav. 795 F.3d 777, 787(8th Cir. 2015); accord Stone v.
Harrv, 364 F.3d 912,914(8th Cir. 2004). "[A] pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus. 551 U.S. 89, 94(2007).
That said, pro se litigants must still present cognizable legal claims to this Court.
Although the Court must take as true any well-pleaded facts, the Court need not accept
"'threadbare recitations ofthe elements ofa cause action supported by mere conclusory
statements.'" Zink v. Lombardi. 783 F.3d 1089, 1098 (8th Cir. 2015)(quotins Iqbal. 556
U.S. at 678)."When we say that a pro se complaint should be given liberal construction,
we mean that ifthe essence of an allegation is discernible ... then the district court
should construe the complaint in a way that permits the layperson's claim to be
considered within the proper legal framework." Solomon. 795 F.3d at 787(quoting
Stone V. Harrv. 364 F.3d 912, 914(8th Cir. 2004)). But "the court need not act as a
clairvoyant, trying to read the tea leaves of a pro se motion to determine what the movant
actually seeks. A litigant, even a pro se one, bears some responsibility for advocating for
himself." In re Hevl. 609 B.R. 194, 202(B.A.P. 8th Cir. 2019).
B. Whether Carlson is Sued in Official or Individual Capacitv. or Both
As a preliminary matter, this Court must recognize that Mr. Bergeson has not
made clear whether he has filed suit against Officer Carlson in his official or individual
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capacity. In its denial of plaintiffs motion for defaultjudgment, the Court has already
recognized this suit must be construed as against Carlson only in his official capacity.
See doc. 22 at 4. The Eighth Circuit has held that "in order to sue a public official in his
or her individual capacity, a plaintiff must expressly and unambiguously state so in the
pleadings, otherwise, it will be assumed that the defendant is sued only in his or her
official capacity." KD v. Douglas Cntv. Sch. Dist. No. 001. 1 F.4th 591, 599 n.5 (8th Cir
2021)(auotins Alexander v. Hedback. 718 F.3d 762, 766 n.4(8th Cir. 2013)). If a
plaintiff fails to clearly state that the defendant is being sued in his individual capacity,
"our precedent requires [courts] to presume that the plaintiff brings suit against the
defendants in only their official capacities." Remington v. Hoones. 611 Fed.Appx. 883,
885 (8th Cir. 2015){unpublished).
C. Whether the Tribe is Immune From Suit
Mr. Bergeson appears, when straining to read his Complaint for the barest of
cognizable allegations, to be suing Officer Carlson (and thus the Tribe)for retrospective
legal damages stemming from the alleged unlawful detention. As articulated above,
however, the Tribe is immune from suit in this Court for retrospective relief. Because of
this sovereign immunity, this Court does not have subject matter jurisdiction and must
dismiss the matter. The only exception to this denial of subject matter jurisdiction would
be for prospective equitable relief pursuant to Ex Parte Young. 209 U.S. 123 (1908). See
Puerto Rico Aqueduct & Sewer Auth. V. Metcalf& Eddv. Inc.. 506 U.S. 139, 146(1993)
(recognizing that Ex Parte Young "applies only to prospective relief, does not permit
judgments against state [or tribal] officers declaring that they violated federal law in the
past, and has no application in suits against the States [or here. Tribes] and their agencies,
which are barred regardless ofthe relief sought.")(emphasis added). See also N. States
Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmtv.. 991 F.2d 458,460(8th
Cir. 1993)(recognizing that "Ex Parte Young applies to the sovereign immunity ofIndian
tribes,just as it does to state sovereign immunity."). However, Bergeson is not asking
this Court for anyfuture pauses on conduct by the Tribe; rather, his focus is on this
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alleged past transgression. Accordingly, because Bergeson seeks relief outside the
subject matter jurisdiction of this Court, his suit should be dismissed.
D. Carlson's Remaining Arguments are Moot
Because all ofBergeson's claims should be dismissed for lack of subject matter
jurisdiction, defendant Carlson's remaining defenses are moot. The Court holds Carlson
is not being sued in his individual capacity. Further, the Court does not address
Bergeson's defense pursuant to the law ofthe case doctrine because no claims presented
possess subject matter jurisdiction.
III. CONCLUSION
This memorandum and order puts an end to Mr. Bergeson's suit against the
myriad of actors involved in his state Driving Under the Influence, as well as
Unauthorized Ingestion ofa Controlled Substance, charges in Roberts County. Despite
his best efforts, he is in fact "subject to a corporate policies [5/c] and rules" of South
Dakota's state laws, including the criminal proceedings brought against him in the Fifth
Judicial Circuit. Complaint,Doc. 1 at 2. Our judges and lawyers need not pledge
loyalty to foreign monarchs, nor must tribal officers withstand suit before this Court
when they are so clearly protected by sovereign immunity. Plaintiffs like Bergeson
cannot escape liability through recycled and rehashed pronouncements of being a citizen
of"[t]he Republic State of South Dakota." Id. Accordingly, defendant's motion should
be granted. Now that all defendants' motions to dismiss have been granted, Bergeson
may decide to properly file his appeal to the Eighth Circuit for review.
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IT IS HEREBY ORDERED that defendant Officer Jaden Carlson's motion for
leave of court to file a responsive pleading, Doe. 25, is granted.
IT IS FURTHER ORDERED that defendant Carlson's motion to dismiss for lack
ofjurisdiction and failure to state a claim. Doc. 28, is granted.
DATED thisO-/ day of January, 2022.
BY THE COURT:
CHARLES B.KORNMANN
United States District Judge
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