Clay v. Weber

#24247-a-SLZ

2007 SD 45

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

LEANDER CLAY AND
JAMES SMITH, Plaintiffs and Appellants,
and
KENNETH MUETZE, Plaintiff,

v.

DOUGLAS WEBER, INDIVIDUALLY,
TIM REISCH, INDIVIDUALLY, AND
JEFF BLOOMBERG, INDIVIDUALLY, Defendants and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE GLEN A. SEVERSON
Judge

* * * *

LEANDER CLAY
JAMES SMITH
South Dakota State Penitentiary
Sioux Falls, South Dakota Pro se appellants.

JAMES E. MOORE
SANDER J. MOREHEAD of
Woods, Fuller, Shultz & Smith Attorneys for defendants
Sioux Falls, South Dakota and appellees.

* * * *
CONSIDERED ON BRIEFS
ON FEBRUARY 13, 2007

OPINION FILED 05/02/07
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ZINTER, Justice

[¶1.] Leander Clay, Kenneth Muetze, and James Smith (collectively referred

to as Inmates) reside in the South Dakota State Penitentiary (SDSP). They brought

this suit for declaratory judgment against prison administrators Douglas Weber,

Tim Reisch, and Jeff Bloomberg (collectively referred to as Administrators). The

suit arose as a result of the Inmates’ alleged: loss of personal property; diversion of

money from their inmate accounts; removal of computers and word processors; and

closing the law library. The circuit court granted summary judgment for the

Administrators based on statutory immunity, and the Inmates appeal. We affirm,

but for different reasons.

Facts and Procedural History

[¶2.] According to the Statement of Undisputed Material Facts submitted by

Administrators, 1 Weber is the Warden of the SDSP. Reisch is the Secretary of the

South Dakota Department of Corrections, and Bloomberg is the former Secretary.

[¶3.] While incarcerated, Smith and Clay were both found guilty of “major

infractions” of prison rules. As a result of those infractions, both complain that they

were impermissibly disciplined by being deprived of certain personal property in

their cells for a period of one year. All three Inmates also alleged that money was

improperly taken from their inmate accounts. This money was either earned while

working in the SDSP or it was sent to the Inmates by others. Smith further

1. Inmates did not object to the Administrators’ Statement of Undisputed Facts.
Therefore, we accept them as the undisputed material facts governing this
case.

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complains about a change in prison policy, prohibiting inmates from owning word

processors or computer systems. Smith finally complains that Weber closed the

prison legal library.

[¶4.] The legal theory underlying all these complaints is the argument that

the Administrators were acting without authority because the “policies” at issue

were invalid as they had not been formally adopted as an administrative rule.

Inmates phrase the legal issue as whether: “Bloomberg and Weber. . . in effect

repealed Article XIV section 2 of the [South Dakota Constitution] and SDCL 1-26A-

2. . . [because they] established rule of the DOC by Policy.[ 2 ] Repealing 307 [sic] of

the [Administrative Rules of South Dakota] without authority of law.” The

complaint specifically disclaims any violation of federal constitutional or statutory

law.

[¶5.] Following the submission of briefs and an opportunity to submit

supporting and opposing materials, the circuit court granted summary judgment

2. Article XIV section 2, governs charitable and penal institutions, providing
that: “The state institutions provided for in the preceding section shall be
governed under such rules and restrictions as the Legislature shall provide.”

SDCL 1-26A-2 provides that generally, the Administrative Rules of South
Dakota are the rules of executive state agencies.

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without a hearing. The circuit court dismissed Inmates’ claims concluding that the

Administrators were entitled to statutory immunity under SDCL §§ 3-21-8 and 3-

21-9. 3 Inmates appeal raising two 4 issues:

1. Whether the circuit court erred in concluding that the Inmates’
claims were barred by statutory immunity.

2. Whether the circuit court erred in granting summary judgment
without a hearing.

Standard of Review

[¶6.] Our standard of review is well-settled:

“Summary judgment is authorized ‘if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a

3. SDCL 3-21-8 provides:

No person, political subdivision, or the state is liable for failure to
provide a prison, jail, or penal or correctional facility, or if such facility
is provided, for failure to provide sufficient equipment, personnel,
programs, facilities, or services in a prison or other correctional
facility.

SDCL 3-21-9 provides:

No person, political subdivision, or the state is liable for any injury
resulting from the parole or release of a prisoner or from the terms
and conditions of his parole or release or from the revocation of his
parole or release, or for any injury caused by or resulting from:

(1) An escaping or escaped prisoner;
(2) An escaping or escaped person;
(3) A person resisting arrest;
(4) A prisoner to any other prisoner; or
(5) Services or programs administered by or on behalf of the prison,
jail, or correctional facility.

4. Inmates raise other issues in their brief to this Court. Because these issues
were not raised before the circuit court, we decline to address them.

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matter of law.’ ” Krier v. Dell Rapids Twp., 2006 SD 10, ¶12, 709
NW2d 841, 844-45 (citing SDCL 15-6-56(c)). “Once we determine that
the material facts are undisputed, our review is limited to whether the
law was correctly applied.” Id. (citation omitted). “We review questions
of law de novo with no discretion given to the circuit court.” Wagner v.
Brownlee, 2006 SD 38, ¶24, 713 NW2d 592, 600 (citing Blenner v. City
of Rapid City, 2003 SD 121, ¶41, 670 NW2d 508, 514).

Pauley v. Simonson, 2006 SD 73, ¶7, 720 NW2d 665, 667. “We will [also] affirm the

circuit court on summary judgment if it is correct for any reason.” A-G-E Corp. v.

State, 2006 SD 66, ¶13, 719 NW2d 780, 785 (citations omitted).

Decision

[¶7.] We initially note that although we affirm the circuit court, we do not

rely upon the circuit court’s rationale that statutory immunity barred this action. 5

A substantial portion of this action was a request for declaratory judgment, and we

have not been presented with argument or authority that statutory immunity from

liability applies to declaratory actions seeking declaratory and injunctive relief.

Generally, immunity does not bar such relief. See Dakota Systems, Inc. v. Viken,

2005 SD 27, ¶¶8-9, 694 NW2d 23, 27-28 (discussing declaratory relief and sovereign

immunity). Furthermore, the statutes at issue only provide immunity from liability

for damages. See SDCL 3-21-8 and SDCL 3-21-9 (stating: “No person, political

5. We do, however, observe that Inmates mistakenly argue that the activities of
the Administrators were ministerial, and therefore Administrators were not
entitled to statutory “immunity.” Because the ministerial/discretionary
distinction is not within the text of SDCL 3-21-8 and SDCL 3-21-9, that
distinction is not relevant to the Administrators’ entitlement to this statutory
immunity. The distinction is only relevant under sovereign immunity. See
generally Wulf v. Senst, 2003 SD 105, ¶20, 669 NW2d 135, 142. Therefore,
even if statutory immunity were to be applied in this case, the
ministerial/discretionary distinction would be immaterial.

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subdivision, or the state is liable . . . .”). For both reasons, the immunity statutes

were not a basis for summary judgment on the Inmates’ claims for declaratory and

injunctive relief. 6

[¶8.] Consequently, we decline to address the statutory immunity claim.

Instead, we address Inmates’ underlying legal theory that the Administrators were

acting without authority of law because they were acting pursuant to policies rather

than lawfully adopted administrative rules. Inmates claim that the Administrators

acted without authority in four areas: taking of money, taking of personal property,

taking of computers, and closing the law library.

Taking of Money

[¶9.] The only record evidence indicating why Inmates’ money was taken is

a letter from Weber to Muetze in answer to Muetze’s request for an administrative

remedy on this issue. The letter indicated that the SDSP took the money for the

Inmates’ cost of incarceration. The pleadings suggest it was taken while the

Inmates were working at Private Sector Prison Industries. The Inmates’ briefs and

the circuit court’s opinion do not provide further clarification.

[¶10.] SDCL 24-2-28 provides that: “Each inmate under the jurisdiction of the

Department of Corrections is liable for the cost of the inmate’s confinement . . . .”

Furthermore, the Department is authorized by statute to take these costs from

inmate accounts:

Each inmate is liable for court-ordered fines, costs, fees,
sanctions, and restitution and any obligation incurred while

6. Under the complaint, statutory immunity was only relevant to the Inmates’
claim for damages for the loss or destruction of their personal property.

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under the jurisdiction of the Department of Corrections. . . .
Disbursement shall be made from an inmate’s institutional
account to defray the inmate’s obligation, regardless of the
source of the inmate’s funds, including moneys in the inmate’s
institutional account . . . and wages earned by the inmate . . . . 7

SDCL 24-2-29. Therefore, even if there were no administrative rules formally

adopted under SDCL ch 1-26, the Administrators had statutory authorization for

the diversion of the Inmates’ money. Consequently, we conclude that the

Administrators’ diversion of money from the Inmates’ accounts was not unlawful,

and the circuit court properly dismissed. 8

Personal Property

[¶11.] Smith and Clay claim that their alleged loss of personal property as a

disciplinary punishment was unlawful. The property was removed under

Department of Corrections Policy 3C.4. Policy 3C.4 provides: “Inmates will be

subject to the forfeiture of personal property items as sanction for Category 5 and

Category 4 Prohibited Acts.” Smith and Clay allege that Policy 3C.4 impermissibly

7. Concerning the necessity of rules, we note that: “The Department of
Corrections may promulgate rules . . . to implement. . . . Deductions from
prison industries revenues or inmate wages to be contributed to a crime
victim assistance or compensation program . . . .” SDCL 24-7-3. This statute
is permissive and does not mandate the adoption of administrative rules.

8. Inmates’ complaint also alleged that DOC Policy 1B-10, Inmate Accounts and
Financial Responsibility, “was not adopted pursuant to Chapter 1-26 as
required by SDCL 1-15-20(5) and SDCL 24-7-3. DOC policy 1B-10 violates
SDCL 1-15-2.1 and SDCL 24-7-3.” However, this policy was not included in
the record. Therefore, we do not consider it. “‘[T]he ultimate responsibility
for presenting an adequate record on appeal falls upon the appellant.’” Toben
v. Jeske, 2006 SD 57, ¶11, 718 NW2d 32, 35 (quoting Caneva v. Miners &
Merchants Bank, 335 NW2d 339, 342 (SD 1983)).

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expanded by “policy” the statutory disciplinary sanctions authorized in SDCL 24-2-9

and SDCL 24-15A-4. 9

[¶12.] However, the Department of Corrections was specifically authorized by

statute to “prescribe departmental policies and procedures for the management of

its institutions and agencies, including inmate disciplinary matters.” SDCL 1-15-20

(emphasis added). Therefore, Policy 3C.4 was authorized by statute. Consequently,

even if there were no validly enacted administrative rule governing the loss of

9. SDCL 24-2-9 provides:

Any inmate violating the rules or institutional policies is subject to any
one or more of the following disciplinary sanctions:
(1) Withholding of statutory time for good conduct;
(2) Punitive confinement;
(3) Imposition of fines;
(4) Restriction of privileges;
(5) Loss of work or school privileges;
(6) Additional labor without compensation;
(7) Referral to various programs;
(8) Transfer to a more secure housing unit;
(9) Change in classification status.
No corporal punishment may be inflicted upon inmates in the
penitentiary.

SDCL 24-15A-4 provides:

Any inmate violating the rules or institutional policies is subject to any
of the following disciplinary sanctions:
(1) Disciplinary segregation;
(2) Imposition of fines;
(3) Loss of privileges;
(4) Additional labor without compensation;
(5) Referral to various programs;
(6) Transfer to a more secure housing unit;
(7) Change in classification status.
No corporal punishment may be inflicted upon inmates in the
penitentiary.

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personal property privileges for Inmates’ rule infractions, the Administrators were

authorized to act by policy rather than rule in this area.

Computers and Word Processors

[¶13.] We do not reach the merits of Smith’s claim concerning the loss of

computers and word processors because his claim is barred by res judicata.

The doctrine of res judicata serves as claim preclusion to
prevent relitigation of an issue actually litigated or which could
have been properly raised and determined in a prior action.
Matter of Estate of Nelson, 330 NW2d 151 (SD 1983); Schmidt v.
Zellmer, 298 NW2d 178 (SD 1980); Gottschalk v. South Dakota
State Real Estate Comm’n, 264 NW2d 905 (SD 1978). . . .

For the purposes of res judicata, a cause of action is comprised of
the facts which give rise to, or establish, the right a party seeks
to enforce. Carr v. Preslar, 73 SD 610, 47 NW2d 497 (1951);
Jerome v. Rust, 23 SD 409, 122 NW 344 (1909). In Golden v.
Oahe Enterprises, Inc., 90 SD 263, 240 NW2d 102 (1976), we
approved of the test adopted in Hanson v. Hunt Oil Co., 505 F2d
1237 (8thCir 1974), for determining if both causes of action are
the same. This test is a query into whether the wrong sought to
be redressed is the same in both actions.

Black Hills Jewelry Mfg. Co. v. Felco Jewel Industries, Inc., 336 NW2d 153, 157 (SD

1983) (emphasis in original). If the wrong sought to be redressed is the same in

both actions:

A judgment which bars a second action upon the same claim
extends not only to every matter offered and received to sustain
or defeat the claim or demand, but also to all other admissible
matters which might have been offered for the same purpose.
Cromwell v. County of Sac, 1877, 94 US 351, 24 LEd 195;
Hanson v. Hunt Oil Company, 505 F2d at 1239; Ramsey Tp;
McCook County v. Lake, 1941, 68 SD 67, 298 NW 356; Chicago
and Northwestern Railway Co. v. Gillis, 1964, 80 SD 617, 129
NW2d 532. If, however, the second action is based upon a
different claim or demand, the prior judgment precludes further
consideration only of those issues which were actually litigated
and determined . . . .

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Golden, 90 SD at 276, 240 NW2d at 109.

[¶14.] Smith was a member of another group of inmates who brought a prior

action in federal court claiming that this policy change involving inmate ownership

of computers and similar equipment violated South Dakota law and their

constitutional right of access to the courts. The federal court dismissed that case for

failure to state a claim. Waff v. South Dakota Dep’t of Corr., CIV 99-4045 (DSD

2001), aff’d in part and rev’d in part by Waff v. South Dakota Dep’t of Corr., 51

FedAppx 615 (8thCir 2002) (unpublished). The district court’s order following the

Eighth Circuit’s decision noted that Smith had been dismissed from the suit and

that he had not appealed that dismissal. 10

[¶15.] In this proceeding, Smith again alleges that the loss of his computer

violated due process under the State Constitution. However, this claim either was

or could have been asserted in the prior federal suit. 11

It is settled law in South Dakota that a judgment subject to res
judicata ‘constitute[s] an absolute bar against the prosecution,
not only of every claim or demand therein in controversy, but
also of all other admissible matters that might have been offered
to sustain or defeat such claims or demands.’

10. The federal court order specified that “the Judgment of Dismissal entered by
Judge Jones on August 23, 2001, is the final judgment against . . . Smith and
[he is] no longer [a party] to this action.”

11. Those inmates specifically “claimed violations of state and federal law-
deprivation of property, cruel and unusual punishment, violation of the South
Dakota Constitution, and denial of due process and equal protection as well
as access to the courts . . . .” Waff , 51 FedAppx at 616, 2002 WL 31641530,
at 1.

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Weddell v. Weber, 2000 SD 3, ¶39, 604 NW2d 274, 283-284 (quoting Cochrun v.

Solem, 397 NW2d 94, 96 (SD 1986)) (emphasis in original). Because Smith’s

current claim either was or could have been offered to sustain his claim in the

federal suit, his current claim is barred by res judicata or collateral estoppel. 12 See

also Grand State Property, Inc. v. Woods, Fuller, Schultz, & Smith, P.C., 1996 SD

139, ¶12, 556 NW2d 84, 87 (listing the four factors of collateral estoppel).

Law Library

[¶16.] Smith’s final claim involves the alleged closing of the law library.

However, this claim is also barred by res judicata and collateral estoppel. The

federal suit also involved the question whether the closing of the law library denied

access to the courts. See supra, ¶¶13-14. Smith raises the same argument here

under the State Constitution. His complaint alleged that: “In order to satisfy the

[South Dakota Constitution’s] mandate requiring meaningful access to courts

Article VI of the SDC. [sic] Plaintiffs were provided with a legal library. . . . Weber

closed the legal library.” Because this is the same issue, and Smith’s legal claim

either was or could have been considered in the federal suit, it is barred by res

judicata or collateral estoppel. See supra, ¶13.

12. Even if we were to reach the merits of this claim, it is barred. We cannot
review the alleged policy disallowing possession of computers because it is
not in the record. “‘[T]he settled record is the sole evidence of the circuit
court’s proceedings, and, when confronted with an incomplete record, our
presumption is that the circuit court acted properly.’” State v. McCrary, 2004
SD 18, ¶13, 676 NW2d 116, 121 (quoting State v. Jones, 416 NW2d 875, 878
(SD 1987)). “As the party asserting error, [Inmates] had the burden ‘of
ensuring an adequate record.’” Id. (quoting State v. Cates, 2001 SD 99, ¶18,
632 NW2d 28, 36).

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2. Motion Hearing

[¶17.] Inmates finally argue that because there was no hearing on the

summary judgment motion, they “were not allowed to demonstrate the existence of

a genuine issue of material fact . . . . A hearing would have allowed [them] to show a

clear violation of Article XIV Section 2.” They claim that “since there were

questions of constitutional nature as to [Administrators’] failure to properly carry

out their ministerial duties a hearing should have been held.” (Inmate’s Br 3)

(emphasis added). However, as discussed supra, n5, the ministerial/discretionary

distinction would have been immaterial in considering the Administrators’

entitlement to statutory immunity under SDCL §§ 3-21-8 and 3-21-9. Therefore,

even if Inmates were prevented from developing a factual record relating to the

ministerial/discretionary duty distinction, that defect would not have precluded

summary judgment because it did not prevent the articulation of a genuine issue of

material fact.

[¶18.] But more fundamentally, we note that Inmates do not argue that they

were denied the opportunity to file any pleadings, depositions, answers to

interrogatories, admissions or affidavits demonstrating the existence of questions of

material fact on any issue. See SDCL 15-6-56(c). 13 We also note that Inmates’

response to the motion for summary judgment did not attempt to raise any issues of

13. SDCL 15-6-56(c), dealing with summary judgment, provides in relevant part:

The judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue
(continued . . .)

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fact. They resisted the Administrators’ summary judgment motion simply: “based

on a supporting brief, [the] statement of uncontested Facts, [sic] and [the] evidence

attached to the statement of uncontested facts.” Considering their response and the

fact that the circuit court may hear evidence on motions by affidavit, oral testimony

or deposition, SDCL 15-6-43(e), the lack of a hearing did not deny Inmates an

opportunity to oppose summary judgment by identifying material issues of disputed

fact. We finally observe that, “oral testimony at summary judgment motion[]

hearings should be allowed only in rare circumstances and for the exclusive

purposes of clarification or correction.” Millard v. City of Sioux Falls, 1999 SD 18,

¶12, 589 NW2d 217, 219. And here, Inmates have not argued that oral argument

was necessary for clarification or correction.

[¶19.] For the foregoing reasons, the judgment of the circuit court is affirmed.

[¶20.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and

MEIERHENRY, Justices, concur.

__________________
(. . . continued)
as to any material fact and that the moving party is entitled to a
judgment as a matter of law.

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