Leslie Torgerson v. Roberts County of South Dakota

United States Court of Appeals
For the Eighth Circuit
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No. 24-1931
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Leslie Torgerson
lllllllllllllllllllllPlaintiff - Appellant
v.
Roberts County of South Dakota; Tyler Appel, in his individual and official
capacities; Zachary Angerhofer, in his individual and official capacities; Wesley
Bowsher, in his individual and official capacities; Ross Torgerson; Terri Torgerson
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of South Dakota - Northern
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Submitted: January 15, 2025
Filed: June 3, 2025
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Before SMITH, BENTON, and ERICKSON, Circuit Judges.
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SMITH, Circuit Judge.
Leslie Torgerson filed suit in federal district court against Roberts County,
South Dakota (County); County Sheriff Tyler Appel, in his individual and official
capacity; County Deputy Zachary Angerhofer, in his individual and official capacity;

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County Deputy Wesley Bowsher, in his individual and official capacity; adopted son
Ross Torgerson (Ross); and ex-wife Terri Torgerson (Terri) (collectively,
“defendants”), alleging violations of Torgerson’s substantive and procedural due
process rights under the Fourteenth Amendment and civil conspiracy. Torgerson
additionally asserted a Monell1 claim against the County; a state-law claim for
common law battery against Ross; and a state-law intentional-infliction-of-emotional
distress claim against Deputy Angerhofer, Deputy Bowsher, Ross, and Terri. All the
claims arise from a domestic dispute between Torgerson, Ross, and Terri. The
defendants moved for summary judgment on Torgerson’s claims. The district court2
granted the defendants’ motions for summary judgment and declined to exercise
jurisdiction over the remaining state-law claims. Torgerson appeals. We affirm.
I. Background3
Torgerson and his then-wife Terri resided together in Sisseton, South Dakota.
On September 21, 2021, their adult son Ross visited the residence to discuss family
matters. Torgerson and Ross began fighting. According to Torgerson, Ross attacked
him after Torgerson demanded that Ross leave the home for being intoxicated, and
Torgerson lost consciousness after the altercation. By contrast, Ross claims that
Torgerson charged him and Terri after Ross accused Torgerson of infidelity; Ross
asserts that he subdued Torgerson to protect Terri from Torgerson.
1Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
2The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
3We recount the facts in the light most favorable to Torgerson as the non-
moving party. See SBFO Operator No. 3, LLC v. Onex Corp., 101 F.4th 551, 556 (8th
Cir.), cert. denied, 145 S. Ct. 547 (2024).
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Terri called the County Sheriff’s Office, and Deputies Angerhofer and Bowsher
arrived shortly thereafter.4 Ross had previously worked as a tribal police officer. He
did not know Deputy Bowsher during his service. But Ross’s and Deputy
Angerhofer’s “paths ha[d] crossed a few times prior to” the events of September 21,
2021. R. Doc. 40-5, at 2.
Upon his arrival, Deputy Angerhofer observed Torgerson lying on the floor
underneath a table next to a window. Deputy Angerhofer could not discern
Torgerson’s level of consciousness and asked him to stand; Torgerson did not
respond. Deputy Angerhofer saw blood around Torgerson’s right ear. Deputy
Angerhofer called for emergency services. When he could communicate with
Torgerson, he advised Torgerson not to get up. Torgerson, however, did stand up
prior to emergency services arriving. Deputy Angerhofer instructed Torgerson to grab
a towel that was located behind him because Torgerson “was spitting . . . what
[Deputy Angerhofer] believed to be blood.” R. Doc. 43-11, at 8. Deputy Angerhofer
radioed dispatch that Torgerson was “bleeding from his right ear,” “ha[d] a bruise on
his right forehead, [and] sa[id] he might have lost a tooth.” Id. at 9.
Deputy Bowsher spoke to Ross outside of the residence while Deputy
Angerhofer remained with Torgerson. Initially, Torgerson said that Ross assaulted
him and that he wanted to press charges. He told Deputy Angerhofer that he “didn’t
touch [Ross].” Id. When Ross reentered the residence, he identified the table
Torgerson’s head hit when he fell. Thereafter, Torgerson changed his mind about
wanting to press charges against Ross, stating “I don’t want Ross charged so you can
charge me.” Id. at 11. Ross responded, “I’m not charging you, Dad.” Id. at 12.
Torgerson replied, “Charge me.” Id. Deputy Bowsher then explained, “With a
domestic, it’s not anyone pressing charges. It’s the State pressing charges.” Id.
4Video from the deputies’ body cameras shows the deputies’ interaction with
Torgerson, Ross, and Terri.
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Deputy Angerhofer decided to “go long form” on the investigative report. Id.
at 13. According to Deputy Angerhofer, “long form” means that the officers
take all the information [they] obtained from [their] investigation or
[from] being on scene, and [they] . . . put it into a report and send it off
to the state’s attorney for their disposition on the matter, i.e., whether or
not they want to . . . charge it out as an assault or disorderly conduct or
however they see fit for the situation or other situations.
Id.
Torgerson advised the officers that he wanted to leave and go to his daughter’s
home in Fargo, North Dakota. Deputy Angerhofer advised Torgerson that emergency
medical technicians (EMTs) would examine him and advise whether he needed to go
to the hospital. Torgerson indicated that he “would rather go to Fargo and be checked
out there.” Id. at 15. The EMTs arrived and examined Torgerson.
While the EMTs were examining Torgerson, Deputy Angerhofer asked Deputy
Bowsher to speak outside of the residence. The deputies agreed that given the
investigatory facts and the men not “want[ing] to press charges against each other,”
they would forego an arrest. Id. at 16. Instead, they would send the report and videos
to the state’s attorney for review and consideration of whether charges were
warranted. The deputies made no arrests that evening.
After conversing, the deputies went back inside the residence and discussed the
parties’ alcohol consumption. Based on this discussion, Deputy Angerhofer advised
that he would give preliminary breath tests (PBT) to Ross and Torgerson. Torgerson’s
PBT resulted in a 0.017, and Ross’s PBT resulted in a 0.091. Ross’s PBT raised
concern from Deputy Angerhofer with Ross driving himself home. Discussions
ensued regarding transportation for Ross. Eventually, Terri drove Ross home, and the
deputies left.
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Following the incident, Torgerson gathered his belongings and drove to his
daughter’s house in Fargo, North Dakota. In Fargo, he received medical treatment at
a hospital, which included stitches. Torgerson stayed with his daughter in Fargo for
the next few days and returned to Sisseton on September 26, 2021. Communication
between Torgerson and Terri deteriorated in the days following his return home.
On September 30, 2021, Torgerson returned to Fargo to have his stitches
removed. That same day, Terri filed a state petition and affidavit for a protection
order against Torgerson. Upon Torgerson’s return to Sisseton from Fargo, he found
the garage door, which he usually used to enter the home, unplugged. This time, he
entered the home through the back door using his house key. Upon Terri’s return to
the house from filing for the protection order, Torgerson prevented her entry into the
home. A brief argument ensued leading to Terri’s departure for Ross’s home.
The state circuit court granted a temporary protection order, and the County
Sheriff’s Office served Torgerson with it on October 1, 2021. Several weeks later, on
October 27, 2021, the state circuit court held a permanent protection hearing. Terri
was represented by counsel, while Torgerson appeared pro se. Ross and Terri testified
under oath at the hearing, and Torgerson cross-examined them. Terri’s counsel
submitted as an exhibit Deputy Angerhofer’s September 21, 2021 report. Torgerson
did not object to its admission. Although Torgerson had a copy of the deputies’ body
camera footage from September 21, 2021, he did not submit it as an exhibit. The state
circuit court ruled that some kind of confrontation occurred on September 21, 2021,
in which Torgerson became angry and Terri felt threatened. The court granted Terri
a two-year protection order against Torgerson. Torgerson did not appeal the state-
court order.
Later on October 27, 2021, Terri served Torgerson with divorce papers filed
in the Sisseton Wahpeton Oyate Tribal Court. Torgerson moved to dismiss the
divorce proceeding for lack of jurisdiction. On November 10, 2021, Torgerson’s
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attorney emailed state court divorce papers to the County Sheriff’s Office to be served
on Terri. On January 10, 2022, the tribal court denied Torgerson’s motion to dismiss
the divorce proceedings, concluding that it had jurisdiction. After several attempts,
Terri was served with state divorce pleadings on February 14, 2022. The state circuit
court, on June 6, 2022, granted Terri’s motion to dismiss the state divorce
proceedings because the tribal court had jurisdiction. Torgerson appealed the state
circuit court’s decision granting Terri’s motion to dismiss.5
On July 19, 2022, the tribal court held the divorce trial. Although Torgerson
did not personally appear, his counsel was present to argue that the tribal court lacked
jurisdiction. On August 2, 2022, the tribal court entered a judgment and decree of
divorce. Torgerson appealed. The tribal appeals court dismissed the appeal as
untimely.
On June 10, 2022, Torgerson filed the instant suit in federal district court
against the defendants, alleging violations of Torgerson’s substantive and procedural
due process rights under the Fourteenth Amendment and civil conspiracy.
Additionally, Torgerson asserted a Monell claim against the County; a state-law claim
for common law battery against Ross; and a state-law intentional-infliction-of-
emotional distress claim against Deputy Angerhofer, Deputy Bowsher, Ross, and
Terri. Terri and Ross filed counterclaims for assault and battery against Torgerson.
Terri and Ross filed separate motions for summary judgment, and the remaining
defendants, all state actors, filed a joint motion for summary judgment on Torgerson’s
claims.
5After Torgerson filed his appeal in this case, the South Dakota Supreme Court
reversed the state circuit court’s grant of Terri’s motion to dismiss Torgerson’s state
court divorce proceedings. See Torgerson v. Torgerson, 11 N.W.3d 50, 66 (S.D.
2024) (reasoning that “Terri failed to present any evidence to the circuit court . . . to
satisfy the jurisdictional requirement of SDCL 1-1-25. Accordingly, we reverse the
circuit court’s order granting full faith and credit to the tribal court order.”).
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The district court granted the defendants’ motions for summary judgment and
declined to exercise supplemental jurisdiction over the remaining state-law claims.
The district court concluded that Torgerson failed to state a claim for a Fourteenth
Amendment violation because he did not “plead[] that he possessed a constitutional
interest, much less that a constitutional interest ha[d] been violated.” R. Doc. 67, at
6. Additionally, the court determined that Torgerson’s civil conspiracy claim failed
because he “fail[ed] to state a constitutional interest” and “fail[ed] to plead facts
showing a conspiracy was formed or [that his] membership in a protected class was
the reason defendants conspired to violate his alleged constitutional right.” Id. at 7.
Based on its determination that Torgerson “did not plead a constitutional right, much
less a violation of a constitutional right,” the court concluded that Torgerson’s Monell
claim failed. Id. at 8. Finally, the court declined to exercise supplemental jurisdiction
over Torgerson’s state-law claims and Ross and Terri’s state-law counterclaims,
concluding that “they [were] comprised wholly of state related issues.” Id. at 9.
Torgerson now appeals.
II. Discussion
On appeal, Torgerson first argues that the district court erred in granting
summary judgment to the defendants on his Fourteenth Amendment claim because
he “was deprived of his protected liberty interest in an honest investigation . . . . due
to the reckless investigation by Deputy Angerhofer, Deputy Bowsher, and Sheriff
Appel.” Appellant’s Br. at 15. Second, Torgerson argues that the district court erred
in granting summary judgment to the defendants on his civil conspiracy claim. Third,
Torgerson contends that the district court erred in granting summary judgment to the
County on his Monell claim because he proved “that in 2021 the Sheriff had policies
which were contrary to state law.” Id. at 13. Finally, Torgerson asserts that the district
court erred in declining to assert supplemental jurisdiction over his state-law claims
“because they form part of the same case and controversy and derive from a common
nucleus of operative fact.” Id. at 14.
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“We review de novo a district court’s grant of summary judgment. Summary
judgment is proper only if there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law.” Lamar v. Payne, 111 F.4th
902, 907 (8th Cir. 2024) (internal quotation marks omitted). We review for an abuse
of discretion a district court’s decision whether to exercise supplemental jurisdiction.
Stearns v. Wagner, 122 F.4th 699, 704 (8th Cir. 2024).
A. Fourteenth Amendment
Torgerson argues that he has a “substantive due process cause of action for
reckless investigation.” Appellant’s Br. at 15 (quoting R. Doc. 59, at 38). Torgerson
contends that construing the facts in the light most favorable to him, Deputies
“Angerhofer and Bowsher attempted to coerce or threaten [him]” by “initially
threaten[ing] to place [Torgerson] in handcuffs and arrest him”; telling Torgerson that
he “had no say in who is arrested or charged, the State of South Dakota decides that”;
and failing to ask Torgerson “his side of what happened.” Id. at 17–18 (bold omitted).
Torgerson also asserts that Deputies Angerhofer and Bowsher “purposefully ignored
evidence suggesting Torgerson’s innocence,” such as evidence that Torgerson
sustained “serious injuries that were incurred as a result of Ross.” Id. at 18–19 (bold
and italics omitted). Finally, he argues that evidence exists “of systematic pressure
to implicate [him] in the face of contrary evidence,” including evidence that “Sheriff
Appel and Ross Torgerson have been best friends for a long time.” Id. at 21 (bold
omitted).
In addition to his substantive due process claim, Torgerson alleges that he
pleaded a procedural due process claim because the deputies’ “failure to investigate
the September 21, 2021 assault on [Torgerson], and the failure to fairly report those
events[,] denied him due process at the October 27, 2021 [p]rotection [o]rder
hearing.” Id. at 28.
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To establish a violation of a substantive due process right, the plaintiff must
prove “(1) that [an] official violated one or more fundamental constitutional rights,
and (2) that the conduct of the . . . official was shocking to the contemporary
conscience.” Flowers v. City of Minneapolis, 478 F.3d 869, 873 (8th Cir. 2007)
(internal quotation marks omitted). To establish a violation of a procedural due
process right, the plaintiff must “show[] that (1) he had a life, liberty, or property
interest protected by the Due Process Clause; (2) he was deprived of this protected
interest; and (3) the state did not afford him adequate procedural rights prior to
depriving him of the property interest.” Stevenson v. Blytheville Sch. Dist. #5, 800
F.3d 955, 965–66 (8th Cir. 2015) (internal quotation marks omitted).
“We recognized a substantive due process cause of action for reckless
investigation in Wilson v. Lawrence County, Mo., 260 F.3d 946 (8th Cir.2001), where
we identified the liberty interest at stake as the interest in obtaining fair criminal
proceedings.” Amrine v. Brooks, 522 F.3d 823, 833 (8th Cir. 2008) (emphasis added)
(internal quotation marks omitted). “To establish a constitutional violation based on
an inadequate investigation, a plaintiff must show that the defendant officer’s failure
to investigate was intentional or reckless, thereby shocking the conscience.” Winslow
v. Smith, 696 F.3d 716, 732 (8th Cir. 2012) (internal quotation marks omitted). “This
is a question of law to which we apply a rigorous standard.” Johnson v. Moody, 903
F.3d 766, 773 (8th Cir. 2018). “Only the most severe violations of individual rights
that result from the brutal and inhumane abuse of official power rise to the
conscience-shocking level.” Davis v. White, 794 F.3d 1008, 1015 (8th Cir. 2015)
(internal quotation marks omitted).
We have held that the following circumstances indicate reckless or
intentional failure to investigate that shocks the conscience: (1) evidence
that the state actor attempted to coerce or threaten the defendant, (2)
evidence that investigators purposefully ignored evidence suggesting the
defendant’s innocence, (3) evidence of systematic pressure to implicate
the defendant in the face of contrary evidence.
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Winslow, 696 F.3d at 732 (quoting Akins v. Epperly, 588 F.3d 1178, 1184 (8th Cir.
2009)). By contrast, “neither negligent nor grossly negligent failure to investigate
amounts to a constitutional violation.” Davis, 794 F.3d at 1015. “An officer’s
negligent failure to investigate inconsistencies . . . is insufficient to establish
conscience-shocking misconduct.” Johnson, 903 F.3d at 773 (quoting Akins, 588 F.3d
at 1184).
“To prove a violation of their Fourteenth Amendment rights, [a] [p]laintiff[]
must also show that [the] [d]efendants’ reckless investigation deprived [p]laintiff[]
of [his] liberty.” Winslow, 696 F.3d at 735. We have recognized that “evidence
derived from a reckless investigation only violates a criminal defendant[’s] due
process rights if it is ‘used to deprive the defendant of her liberty in some way.’” Id.
(quoting Whitlock v. Brueggemann, 682 F.3d 567, 580 (7th Cir. 2012)). For example,
“if an officer . . . fabricates evidence and puts that fabricated evidence in a drawer,
making no further use of it, then the officer has not violated due process; the action
did not cause an infringement of anyone’s liberty interest.” Id. (ellipsis in original)
(quoting Whitlock, 682 F.3d at 582). By contrast, we have held that where there was
“evidence [d]efendants used false evidence to secure a conviction, [p]laintiffs
. . . sufficiently supported a cognizable due process claim.” Id. (citing Wilson, 260
F.3d at 954–55 (allowing reckless investigation claim to proceed where evidence
derived from investigation was used at plea hearing)); see also Johnson v. McCarver,
942 F.3d 405, 411 (8th Cir. 2019) (“Any post-trial claim based on the alleged false
report requires a showing that the report was used to deprive [plaintiff] of liberty in
some way.”).
Here, even assuming that Torgerson could show a reckless investigation that
shocks the conscience, he has failed to show that the “reckless investigation deprived
[him] of [his] liberty.” Winslow, 696 F.3d at 735. Torgerson suffered no criminal
consequences from the deputies’ investigation. The deputies did not arrest Torgerson.
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The record shows that Deputy Angerhofer completed a long-form investigative report
in which he recorded the information obtained from the deputies’ investigation and
sent it to the state’s attorney for determination of whether to charge anyone with a
crime. Ultimately, Torgerson was never charged with nor prosecuted for any crime;
therefore, he was not deprived of his liberty and suffered no violation of his
substantive or due process rights under the Fourteenth Amendment.
B. Civil Conspiracy
Torgerson maintains that the district court erred in concluding that no evidence
existed of the defendants’6 civil conspiracy. See 42 U.S.C. § 1983.7
To prove a § 1983 conspiracy claim against a particular
defendant, the plaintiff must show: that the defendant conspired with
others to deprive him or her of a constitutional right; that at least one of
the alleged co-conspirators engaged in an overt act in furtherance of the
conspiracy; and that the overt act injured the plaintiff. Moreover, . . . the
plaintiff is additionally required to prove a deprivation of a
constitutional right or privilege in order to prevail on a § 1983 civil
conspiracy claim.
Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999) (citations omitted).
6Torgerson not only sued the state actors for civil conspiracy, but also Ross and
Terri. “A private party may be held liable under § 1983 only if it is a willful
participant in joint activity with the State or its agents.” Gibson v. Regions Fin. Corp.,
557 F.3d 842, 846 (8th Cir. 2009) (internal quotation marks omitted).
7Torgerson concedes that “[t]he [d]istrict [c]ourt is correct about a conspiracy
under 42 U.S.C. § 1985 that ‘. . . there must be some racial, or perhaps otherwise
class-based, invidiously discriminating animus behind the conspirators’ actions.’”
Appellant’s Br. at 22 (ellipsis in original) (quoting R. Doc. 67, at 7 (quoting Griffin
v. Breckenridge, 403 U.S. 88, 102 (1971))).
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“In the absence of a [constitutional] violation, there is no actionable conspiracy
claim.” Cook v. Tadros, 312 F.3d 386, 388 (8th Cir. 2002). Because Torgerson’s
constitutional rights were not violated, his civil conspiracy claim necessarily fails.
C. Monell Claim
Torgerson next argues that the district court erroneously granted summary
judgment to the County on his Monell claim.
“‘[A]bsent a constitutional violation’ by a[] [County] employee, ‘there can be
no § 1983 or Monell liability.” Stearns, 122 F.4th at 704 (first alteration in original)
(quoting Whitney v. City of St. Louis, 887 F.3d 857, 861 (8th Cir. 2018)). Here,
Torgerson’s “Monell claim fails” “[b]ecause [his] constitutional rights were not
violated.” Id.
D. State-Law Claims
Torgerson challenges the district court’s refusal to exercise jurisdiction over
his state-law claims.
“In the usual case in which all federal-law claims are eliminated before trial,
the balance of factors to be considered under the pendent jurisdiction doctrine will
point toward declining to exercise jurisdiction over the remaining state-law claims.”
Id. (internal quotation marks omitted). Here, Torgerson has provided us with “no
reason to second guess the district court’s decision, and we can detect no abuse of
discretion.” Id.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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