Roger Joseph Hoffert, Jr. v. Jeremy Westendorf, Individually

United States Court of Appeals
For the Eighth Circuit
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No. 20-2648
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Roger Joseph Hoffert, Jr.
lllllllllllllllllllllPlaintiff - Appellant
v.
Jeremy Westendorf, Individually and in his official capacity as an Assistant Black
Hawk County Attorney; Chastity Sullivan, Individually and in her official capacity
as an Assistant Black Hawk County Attorney; Kimberly A. Griffith, Individually
and in her official capacity as an Assistant Black Hawk County Attorney; Tony
Thompson, Individually and in his official capacity as an Assistant Black Hawk
County Sheriff; Phillip Wendling, Individually and in his official capacity as an
Assistant Black Hawk County Sheriff's Deputy; Beth Skinner, Individually and in
her official capacity as Director of the Iowa Department of Corrections
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Northern District of Iowa - Western
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Submitted: March 24, 2021
Filed: March 29, 2021
[Unpublished]
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Before KELLY, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.

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Roger Hoffert, Jr. appeals the district court’s order and judgment dismissing his
action under 42 U.S.C. § 1983 and Iowa state law. For the following reasons, we
vacate a portion of the district court’s order, and otherwise affirm.
In October 2019, Hoffert filed his pro se complaint, which was twice amended
by appointed counsel. He alleged, as relevant, that he was charged in a criminal
complaint, signed by Black Hawk County Sheriff’s Deputy Phillip Wendling, with
introducing contraband into the Black Hawk County Jail; that the charge was not
supported by probable cause; that he was improperly held in pretrial detention at the
jail and later imprisoned at the Iowa Department of Corrections (IDC) on a conviction
for that charge; and that the conviction was subsequently overturned. He named, in
their individual and official capacities, the director of the IDC and the Black Hawk
County sheriff; and claimed cruel and unusual punishment, in violation of the Eighth
Amendment; false imprisonment, in violation of the Fourteenth Amendment; and
intentional infliction of emotional distress (IIED), in violation of state law. He also
named, in their individual and official capacities, Wendling and several Black Hawk
County prosecutors; and claimed malicious prosecution, abuse of process, and IIED.
all under state law. His operative complaint also included a claim against Wendling
and the prosecutors for “prosecution absent probable cause,” in violation of the
Fourteenth Amendment; but did not expressly invoke the Fourth Amendment, unlike
his prior complaints. On defendants’ motions, the district court dismissed the action
under Federal Rule of Civil Procedure 12(b)(6), reasoning that most defendants were
entitled to immunity; and that, regardless, Hoffert failed to allege facts sufficient to
state a claim. The district court also reasoned, as relevant, that Hoffert’s Fourteenth
Amendment claim based on his right to be free from prosecution was only cognizable
as a malicious-prosecution claim under the Fourth Amendment; and that, to the extent
he raised such a claim against Wendling, it failed.
In his pro se briefs, Hoffert argues the district court erred in dismissing the
action. He also expresses his dissatisfaction with the district court’s discussion of his
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potential Fourth Amendment claim, and asks this court to “reopen” the case as to that
claim. As relevant, defendants urge affirmance and argue that the district court should
not have considered a malicious-prosecution claim under the Fourth Amendment.
To begin, we conclude that dismissal was proper as to Hoffert’s section 1983
claims against the IDC director and the sheriff, because, to the extent he named them
in their official capacities, he failed to allege that any official policy, custom, or
practice caused a constitutional violation. See Young v. City of St. Charles, 244 F.3d
623, 627 (8th Cir. 2001) (standard of review); see also Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690-92 (1978) (local government not liable under § 1983 unless official
policy or custom caused violation of plaintiff’s rights); Parrish v. Ball, 594 F.3d 993,
997 (8th Cir. 2010) (official-capacity suit against public official is actually suit against
entity for which official is agent). Moreover, to the extent he named them in their
individual capacities, he did not allege how either was personally involved in any
misconduct or how his detention pursuant to valid court orders violated his
constitutional rights. See Beaulieu v. Ludeman, 690 F.3d 1017, 1030-31 (8th Cir.
2012) (supervisors cannot be held vicariously liable under § 1983 for actions of
subordinate; to state claim, plaintiff must allege supervising official violated
Constitution through their individual actions; general allegations that defendant
supervises facility or was deliberately indifferent are not sufficient to state claim).
Next, we conclude that dismissal as to Hoffert’s claims against the prosecutors
was proper based on absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259,
274 n.5 (1993) (prosecutor is entitled to absolute immunity for decision to bring
indictment, regardless of whether they have probable cause); Webster v. Gibson, 913
F.2d 510, 513-14 (8th Cir. 1990) (prosecutor must act clearly outside their jurisdiction
to lose absolute immunity); cf. Mireles v. Waco, 502 U.S. 9, 11 (1991) (per curiam)
(judicial immunity, like other forms of official immunity, is immunity from suit, not
merely assessment of damages).
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We further conclude that Hoffert’s state law claims against the IDC director,
the sheriff, and Wendling were properly dismissed, because Hoffert failed to make
any non-conclusory allegations indicating that Wendling acted with the requisite level
of intent, or that any defendants’ conduct was outrageous. See Yoch v. Cedar Rapids,
353 N.W.2d 95, 100-02 (Iowa Ct. App. 1984) (to establish malicious prosecution
under Iowa law, plaintiff must show, inter alia, malice by defendant; malice may not
be inferred from lack of probable cause); see also Doe v. Hagar, 765 F.3d 855, 865
(8th Cir. 2014) (elements of IIED under Iowa law include outrageous conduct by
defendant; affirming district court’s conclusion that plaintiff did not establish IIED
where sole basis of outrageous conduct was plaintiff’s conclusory statements); Small
v. McCrystal, 708 F.3d 997, 1011 (8th Cir. 2013) (for abuse-of-process claim under
Iowa law, plaintiff must show defendant used process primarily for impermissible
motive).
As to Hoffert’s remaining claim for violation of his Fourteenth Amendment
right to be free from prosecution absent probable cause, we agree such a claim was
only cognizable under the Fourth Amendment; and that, because his operative
counseled complaint did not invoke the Fourth Amendment, such a claim was
abandoned. See Manuel v. City of Joliet, 137 S. Ct. 911, 920-21 (2017) (Fourth
Amendment governs claim for unlawful pretrial detention, even beyond initiation of
legal process); see also Mickelson v. Cnty. of Ramsey, 823 F.3d 918, 932 (8th Cir.
2016) (when party fails to argue claim before district court, claim is considered
abandoned such that it need not be considered on appeal). We further conclude that
because he abandoned any Fourth Amendment claim, the district court’s analysis and
dismissal with prejudice of such a claim against Wendling was unnecessary. See
Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir. 1995) (dismissal with prejudice
operates as rejection of plaintiff’s claims on merits); cf. Harmon v. City of Kansas
City, 197 F.3d 321, 328 (8th Cir. 1999) (vacating portion of district court’s order
which unnecessarily addressed, and resolved merits of, aspect of plaintiff’s claim).
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Accordingly, we vacate the portion of the district court’s order which addressed
a malicious-prosecution claim under the Fourth Amendment against Wendling, and
we otherwise affirm. We also deny Hoffert’s pending motions as moot.
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