Gomez v. State of South Dakota et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DANIEL JOSE GOMEZ,
Plaintiff,
vs.
MINNEHAHA COUNTY STATES
ATTORNEYS OFFICE,
Defendant.
4:20-CV-04151-RAL
OPINION AND ORDER GRANTING
DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT
Plaintiff Daniel Jose Gomez filed a pro se lawsuit under 42 U.S.C. § 1983, alleging that
defendants violated his speedy trial rights by repeatedly charging him, dropping the charges
without prejudice, and charging him again for the same crime and the same set of facts. Doc.1.
This Court granted Gomez leave to proceed in forma pauperis. Doc. 8. This Court screened
Gomez's complaint, dismissed his claims against other defendants, and directed service of
Gomez's complaint upon the Minnehaha County State's Attorney Office ("State's Attorney
Office"). Id at 10. The State's Attorney Office has filed a motion for summary judgment. Doc.
38. Gomez now has several motions pending before this Court. Docs. 52, 53, 56,58, 62. For the
reasons explained below, this Court grants the State's Attorney Office's motion for summary
judgment on all claims.
Case 4:20-cv-04151-RAL Document 66 Filed 02/22/22 Page 1 of 7 PageID #: <pageID>

I. Facts
Gomez claims that the state of South Dakota, through the State's Attorney Office,
conspired with Melissa Sommers,1 Mark Kadi, and Tim Herschberger,2 three defendants in this
action against whom claims have been dismissed, to deprive him of his rights. Doc. 1 at 11. He
claims that South Dakota's speedy trial rule 180-day deadline has passed and that prosecutors
dismissed the charges and then reinitiated charges for the same set of facts, resulting in a trial
date beyond the 180-day deadline. Id. He alleges that the State's Attorney Office has a custom of
dismissing and reinitiating charges in this manner, having done so against him repeatedly. See id
at 11-12. In subsequent filings in this case, Gomez also makes several other allegations regarding
his right to effective assistance of counsel, his right to be free from double jeopardy, alleged
abuse by Minnehaha County Jail employees, and other allegations of constitutional deprivations
that are not before the Court at this time. See, e.e.. Doc. 58 at 2, 4-6.
Under Local Rule 56.1, the State's Attorney Office filed a statement of undisputed
material facts, along with three affidavits and a memorandum in support of the motion. Docs. 39,
40, 41, 42, 43. In response, Gomez filed a "Rebuttal to States Summary Judgment[.]" Doc. 44.
Under Local Rule 56.1 .B., a party opposing summary judgment "must respond to each numbered
paragraph in the moving party's statement of material facts with a separately numbered response
and appropriate citations to the record." D.S.D. CIV LR 56.1.B. Because Gomez failed to do so,
this Court issued an order on September 22, 2021, giving Gomez an additional 21 days to file a
Gomez named Mellisa Sommors as a defendant in this case. Doc. 1 at 1. According to emails
exchanged with Sommers attached to Gomez's complaint, her actual name is Melissa Sommers.
Doc. 1-1 at 8. This order will refer to Sommers by her actual name.
2 Sommers and Kadi are attorneys employed by the Minnehaha County Public Defender's
Office. Doc. 1 at 1. Kadi is an attorney employed by the Minnehaha County Public Advocate
Office. Id. All three were appointed to represent Gomez at different points in his various criminal
cases. Id. at 11.
Case 4:20-cv-04151-RAL Document 66 Filed 02/22/22 Page 2 of 7 PageID #: <pageID>

response which specifically responds to each numbered paragraph in the State's Attorney
Office's statement of material facts. Doc. 48. Although Gomez has filed multiple pleadings since
then, including a response in opposition to two of the State's Attorney Office's submitted
affidavits. Doc. 57, he has not responded specifically to each numbered paragraph in the
statement of material facts as required by Local Rule 56.1.B. Thus, under Local Rule 56.1.D, all
material facts set forth in the State's Attorney Office's statement of undisputed material facts can
be deemed admitted. D.S.D. CIV LR 56.1.D. This Court will draw facts primarily from that
statement of undisputed material facts.
The State's Attorney Office in its filings provided details as to the charges that Gomez
alleges violate his speedy trial rights. Doc. 39 ^ 1-13. Gomez was first charged in a criminal
complaint with a felony and two misdemeanors on March 20, 2019, after allegedly violating a
protection order on or about March 10, 2019. Id 11. On April 18, 2019, a Minnehaha County
Grand Jury indicted Gomez on the same charges. I(L ^| 2. The State's Attorney Office chose to
dismiss without prejudice on August 16, 2019, because the alleged victim, a critical witness, was
no longer cooperating with the prosecution. Id. ^ 4.
Gomez was next charged by criminal complaint on August 23, 2019, with one
misdemeanor for allegedly violating a protection order on or about February 15,2019. Id. ^7.
Gomez was later charged by criminal complaint on April 20, 2020, with two misdemeanors for
allegedly violating a protection order and resisting arrest on or about April 17, 2020. Id If 9. The
State's Attorney Office, on June 24, 2020, chose to dismiss without prejudice the charges related
to events on February 15, 2019, and April 17, 2020, because the alleged victim, a critical
witness, was no longer cooperating with the prosecution. Id ^ 11. At no point have the charges
Case 4:20-cv-04151-RAL Document 66 Filed 02/22/22 Page 3 of 7 PageID #: <pageID>

from any of the three incidents been "refiled, reindicted, or reinitiated in any manner." Id. ^ 6,
13.
II. Summary Judgment Standard
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper
when "the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Rule 56(a) places the burden on
the moving party to establish the absence of a genuine issue of material fact and entitlement to
judgment as a matter of law. IdL; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
nonmoving party must establish that a material fact is genuinely disputed by either "citing to
particular parts of materials in the record" or "showing that the materials cited do not establish
the absence ... of a genuine dispute[.]" Fed. R. Civ. P. 56(c)(l)(A), (B); see also Gacek v.
Owens & Minor Distrib.. Inc., 666 F.3d 1142, 1 145-46 (8th Cir. 2012). A party opposing a
properly supported motion for summary judgment "may not rest upon mere allegations or
denials" in his pleading but "must set forth specific facts showing that there is a genuine issue for
trial." Gacek, 666 F.3d at 1145-46 (citing Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 256
(1986)); see also Moslev v. City ofNorthwoods, 415 F.3d 908, 910 (8th Cir. 2005) (stating that a
nonmovant may not merely rely on allegations or denials). In ruling on a motion for summary
judgment, the facts and inferences fairly drawn from those facts are "viewed in the light most
favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S.574,587-88(1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)
(per curiam)).
Case 4:20-cv-04151-RAL Document 66 Filed 02/22/22 Page 4 of 7 PageID #: <pageID>

III. Discussion
A. Amenability of the State's Attorney Office to Suit
The State's Attorney Office argues that it is not amenable to suit because South Dakota
law does not permit it to sue or be sued. Doc. 43 at 4-5. Under Federal Rule of Civil Procedure
17(b)(3), capacity to sue or be sued for entities other than individuals not in a representative
capacity or corporations is determined "by the law of the state where the court is located[.]" Fed.
R. Civ. P. 17(b)(3). One exception to this rule allows that "a partnership or other unincorporated
association with no such capacity under that state's law may sue or be sued in its common name
to enforce a substantive right existing under the United States Constitution or laws[.]" Fed. R.
Civ. P. 17(b)(3)(A). Under Article 3, Section 27 of the South Dakota Constitution, "[t]he
Legislature shall direct by law in what manner and in what courts suits may be brought against
the state." S.D. Const. art. Ill, § 27. South Dakota state law allows for counties "to sue and be
sued, plead and be impleaded, in any court in this state." SDCL § 7-18-1. South Dakota Codified
Laws 7-16, the chapter governing state's attorneys, does not contain a similar section sanctioning
suits by or against a state's attorney office. See SDCL 7-16. Thus, South Dakota law authorizes
suits against a county but not against the state's attorney office of that county.
The United States Court of Appeals for the Eighth Circuit has explained that the
exception contained in Fed. R. Civ. P. 17(b)(3) only applies when the entity in question has no
capacity to sue or be sued under state law. Lundquist v. Univ. ofS.D. Sanford Sch. ofMed., 705
F.3d 378, 380 (8th Cir. 2013). "When state law does grant such an entity the capacity to sue or
be sued, but specifies the manner in which that capacity may be exercised, state law limitations
on the manner of exercise apply." Id. at 380-381. Because state law allows Gomez to bring his
claims against Minnehaha County, Fed. R. Civ. P. 17(b)(3)(A) does not authorize an exception to
Case 4:20-cv-04151-RAL Document 66 Filed 02/22/22 Page 5 of 7 PageID #: <pageID>

state law allowing Gomez to bring claims against the State's Attorney Office. Therefore, the
State's Attorney Office is not amenable to suit.
B. Gomez's Speedy Trial Claim
Even if the State's Attorney Office were amenable to suit, the State's Attorney Office
argues that Gomez has not suffered a constitutional injury and his claim is unripe. Id. at 9-11.
There can be no § 1983 claim without a violation of constitutional rights. Malone v. Hirunan,
847 F.3d 949, 955-956 (8th Cir. 2017); see also 42 U.S.C. § 1983 (allowing claims against
"[e]very person who . . . subjects, or causes to be subjected, [any person] to the deprivation of
rights, privileges, or immunities secured by the Constitution and laws"). The undisputed facts
show that Gomez was charged three times for three separate incidents and that these charges
were dismissed without prejudice after the alleged victim declined to cooperate with the
prosecution. Doc. 39 ^ 1,4, 7, 9,11. Gomez alleges that his speedy trial rights have been
violated because he has been charged repeatedly for the same incident, but this is not the case.
See i(L Even assuming that the practice he alleges would violate his speedy trial rights, Gomez
fails to show a constitutional injury because the undisputed facts demonstrate that a speedy trial
right violation did not occur and therefore, he suffered no harm from any delayed trial.
Gomez also alleges that because the charges were dismissed without prejudice, the
possibility of those charges being brought in the future is a violation of his speedy trial rights.
Doc. 1 at 12. "A claim is not ripe for adjudication if it rests upon 'contingent future events that
may not occur as anticipated, or indeed may not occur at all.' " Parrish v. Dayton, 761 F.3d 873,
875-76 (8th Cir. 2014) (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). Gomez's
claim is contingent on the dismissed charges being refiled in the future, which may or may not
occur. Even if somehow refiling the same charges dismissed earlier without prejudice due to an
Case 4:20-cv-04151-RAL Document 66 Filed 02/22/22 Page 6 of 7 PageID #: <pageID>

alleged victim not cooperating were to be viewed as a violation ofGomez's speedy trial rights,
Gomez's claim is not ripe until that occurs.
IV. Conclusion and Order
The State's Attorney Office is not amenable to suit, Gomez has not suffered a
constitutional injury, and his claims alleging a constitutional injury are not ripe. Thus, the State's
Attorney Office is entitled to summary judgment. It is hereby
ORDERED that the State's Attorney Office's Motion for Summary Judgment, Doc.38, is
granted. It is further
ORDERED that Gomez's motion to stay. Doc. 52, motion to consolidate cases, Doc. 53,
renewed motion to appoint counsel, Doc. 56, motion to amend complaint. Doc. 58, and motion for
discovery. Doc. 62, are denied as moot. It is further
ORDERED that Gomez's motion to submit additional evidence, Doc. 65, is granted to the
extent that Gomez's attached documents related to a state court proceeding are filed in this Court's
CM/ECF record.
DATED this ^ day of February, 2022.
BY THE COURT:
j^£^,zk LM ^^s3*?^——
ROBERTO A. LANGE'
CHIEF JUDGE
Case 4:20-cv-04151-RAL Document 66 Filed 02/22/22 Page 7 of 7 PageID #: <pageID>