Kurtenbach v. Codington County et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
MATTHEW KURTENBACH,
Plaintiff,
vs.
CODINGTON COUNTY, BRAD
HOWELL, MATT BLACKWELDER,
UNKNOWN WATERTOWN POLICE
DEPARTMENT DETECTIVE, REBECCA
REITER,
Defendants.
CIV. 20-1008-JLV
ORDER
Plaintiff Matthew Kurtenbach, appearing pro se, filed a civil rights action
against the defendants under 42 U.S.C. § 1983. (Docket 1). He also filed a
motion to proceed in forma pauperis. (Docket 2). Mr. Kurtenbach alleges
violations of the Fifth, Sixth, and Fourteenth Amendments. (Docket 1 at p. 3).
The Prison Litigation Reform Act, 28 U.S.C. ' 1915, requires prisoners to
make an initial partial filing fee payment when possible. Determination of the
partial filing fee is calculated according to 28 U.S.C. ' 1915(b)(1), which
requires a payment of 20 percent of the greater of:
(A) the average monthly deposits to the prisoner=s account;
or
(B) the average monthly balance in the prisoner=s account
for the 6-month period immediately preceding the filing
of the complaint or notice of appeal.
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In support of his motion, plaintiff provided a copy of his prisoner trust account
report signed by an authorized prison officer. (Docket 4). The report shows an
average monthly deposit for the past six months of $0, an average monthly
balance for the past six months of $0, and a current balance of $0. Id. In light
of this information, the court finds plaintiff is not required to make an initial
partial filing fee.
Under 28 U.S.C. ' 1915A, the court must review a prisoner complaint
and identify cognizable claims or dismiss the complaint if it is frivolous,
malicious, or fails to state a claim upon which relief may be granted. This
screening process Aapplies to all civil complaints filed by [a] prisoner[],
regardless of payment of [the] filing fee.@ Lewis v. Estes, 242 F.3d 375 at *1
(8th Cir. 2000) (unpublished) (citing Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir.
1999). A[A] complaint, containing as it does both factual allegations and legal
conclusions, is frivolous where it lacks an arguable basis either in law or in
fact. . . . ' 1915(d)=s term >frivolous,= when applied to a complaint, embraces not
only the inarguable legal conclusion, but also the fanciful factual allegation.@
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Because Mr. Kurtenbach has not specified in what capacity he is suing
defendants, this court treats the claims against them as only in their official
capacities. See Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir.
1995); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989). “A suit against a
government officer in his official capacity is functionally equivalent to a suit
against the employing governmental entity.” Veatch v. Bartels Lutheran Home,
627 F.3d 1254, 1257 (8th Cir. 2010). Mr. Kurtenbach’s official capacity claims
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against the Unknown Watertown Police Department Detective are the
equivalent to claims against the City of Watertown. A municipal government
may only be sued “when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy,” deprives a plaintiff of a federal right. Monell v. Dept.
of Soc. Servs., 436 U.S. 658, 694 (1978). Because Mr. Kurtenbach does not
assert that policies or customs of the City of Watertown are depriving him of
his rights, his claims against the Unknown Watertown Police Department
Detective in his/her official capacity are dismissed for failure to state a claim
under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1).1
Mr. Kurtenbach sues Rebecca Reiter, Deputy State’s Attorney for
Codington County State’s Attorney, in her official capacity. (Docket 1 at p. 2).
The Supreme Court stated, “a suit against a state official in . . . her official
capacity is not a suit against the official but rather is a suit against the
official’s office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)
(citing Brandon v. Holt, 469 U.S. 464, 471 (1985)). Thus, it is a suit against
the state itself. While “[§] 1983 provides a federal forum to remedy many
deprivations of civil liberties . . . it does not provide a federal forum for litigants
who seek a remedy against a State for alleged deprivations of civil liberties.” Id.
at 66.
1Mr. Kurtenbach claims “Codington County is liable as they have
instituted a policy or practice of recording and monitoring [the] privileged calls
of pretrial detainees.” (Docket 1 at p. 3). Mr. Kurtenbach alleges that Brad
Howell and Matt Blackwelder work in some capacity for Codington County. Id.
at 2.
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The Eleventh Amendment generally acts as a bar to suits against a state
for money damages unless the state has waived its sovereign immunity. Id.
But when an official capacity claim is asserted for injunctive relief against a
state officer, the defense of qualified immunity does not apply. See Pearson v.
Callahan, 555 U.S. 223, 242-43 (2009).
Here, Mr. Kurtenbach seeks monetary and injunctive relief. (Docket 1 at
pp. 5-6). Because Mr. Kurtenbach has sued Ms. Reiter in her official capacity,
Mr. Kurtenbach has asserted a claim for money damages against the state of
South Dakota. The state of South Dakota has not waived its sovereign
immunity. To the extent Mr. Kurtenbach seeks to hold Ms. Reiter liable in her
official capacity for money damages, the court finds Ms. Reiter is protected by
sovereign immunity and is entitled to judgment as a matter of law. Mr.
Kurtenbach’s claims against Ms. Reiter in her official capacity for injunctive
relief survive 28 U.S.C. § 1915A screening. The same analysis holds true as to
the claims against Mr. Howell and Mr. Blackwelder.
The court concludes that the rest of Mr. Kurtenbach’s complaint does not
appear to be either frivolous or fail to state a claim upon which relief may be
granted. Whether the complaint has merit is a question which cannot be
resolved until after defendants file an answer or some other responsive
pleading.
ORDER
Accordingly, it is
ORDERED that plaintiff’s motion for leave to proceed in forma pauperis
(Docket 2) is granted.
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IT IS FURTHER ORDERED that Mr. Kurtenbach’s claims against the
Unknown Watertown Police Department Detective in his/her official capacity
are dismissed with prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and
1915A(b)(1).
IT IS FURTHER ORDERED that Mr. Kurtenbach’s claims seeking
monetary damages against Rebecca Reiter in her official capacity are dismissed
with prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(i-ii) and 1915A(b)(1). Mr.
Kurtenbach’s claims against Ms. Reiter, Mr. Howell and Mr. Blackwelder for
injunctive relief survive 28 U.S.C. § 1915A review.
IT IS FURTHER ORDERED that upon receipt of the completed summons
and USM-285 form for each defendant, the Clerk of Court will issue a
summons. If the completed summons and USM-285 form are not submitted as
directed, the complaint may be dismissed. The United States Marshal shall
serve the completed summons with a copy of the complaint and this order
upon the defendants. The United States will advance the costs of service.
IT IS FURTHER ORDERED that defendants shall serve and file an
answer or responsive pleading to the complaint, together with a legal brief or
memorandum in support, on or before twenty-one (21) days following the date
of service.
IT IS FURTHER ORDERED that the institution having custody of
Mr. Kurtenbach is hereby directed that, whenever the amount in his trust
account exceeds $10, monthly payments that equal 20 percent of the funds
credited to the account the preceding month shall be forwarded to the United
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States District Court Clerk=s Office pursuant to 28 U.S.C. ' 1915(b)(2) until the
filing fee of $350 is paid in full.
Dated May 28, 2020.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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