Hines v. Kaemingk et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
NICHOLAS STEWART HINES,
Plaintiff,
vs.
JODY JOHNSON, YANKTON COUNTY
CLERK OF COURTS, in her individual
capacity, AND JANE OR JOHN DOE(S), in
their individual capacities,
Defendants.
4:19-CV-04108-LLP
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S
MISCELLANEOUS MOTIONS
Plaintiff, Nicholas Stewart Hines, is an inmate at the Yankton County Jail. He filed a pro
se civil rights lawsuit under 42 U.S.C. § 1983. Doc. 1. Pending before the court is defendant
Jody Johnson’s motion for summary judgment (Doc. 85) and miscellaneous motions by Hines
(Docs. 84, 88, 101). For the reasons stated below, the Court grants Johnson’s motion for
summary judgment and denies Hines’s motions.
FACTUAL BACKGROUND
The Court recites the facts relevant to the remaining claims in the light most favorable to
Hines because Johnson moves for summary judgment. Where facts relevant to the remaining
claims are disputed, both parties’ averments are included.
Hines pleaded guilty to one count of first-degree manslaughter and was sentenced to 200
years in prison, with 100 years suspended, on June 7, 2012. Doc. 58-1 at 1-2. The judgment
ordered Hines to “pay restitution through the Yankton County Clerk of Courts pursuant to the
restitution sheet on file.” Id. at 3. He was also ordered to pay $104 in court costs and an amount
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for attorney’s fees to be determined later. Id. $6,658.40 was later approved as the amount for
attorney’s fees. Doc. 58 ¶ 12. Hines claims that upon receiving a monthly account statement
from the South Dakota State Penitentiary, he discovered that his court-ordered obligations were
over $10,000,000. Doc. 27 at 21. He claims that he wrote to the Yankton County Clerk of Courts
inquiring as to his restitution obligations during his first year of incarceration. Id. To support this
claim, he cites to a letter to Johnson requesting his casefiles and a letter he wrote one of his
attorneys, asking for help figuring out his restitution. Doc. 4-1 at 33, 39. He also claims that his
attorney in a wrongful death suit in 2013 discovered “an administrative document showing a debt
of $9,999,999.99” in his criminal file. Doc. 27 at 22. A judgment was entered against Hines in
the wrongful death suit for $600,000.00 plus post-judgment interest. Id.
Despite years of efforts, Hines alleges that he was unable to discover any more
information about his restitution. Id. In June 2017, Hines claims that he was told by a Unit
Manager at the penitentiary that according to their system, Hines’s financial obligations were
correct, but the Unit Manager could not cite a source or document for those obligations. Id. at 23.
Later that month, Hines claims that he briefly viewed a document on a Case Manager’s desk
which indicated that he owed $9,999,999.99 as restitution. Id. He also claims that he spoke with
his habeas attorney at the time, Cheri Scharfenberg, who made repeated attempts to find his
restitution sheet but was unable to do so. Id.
On May 2, 2018, Hines alleges that he received a monthly account statement indicating
that his financial obligations had been reduced by $10,000,000. Id. He claims that he spoke with
penitentiary staff, and he learned that an individual from Yankton County had called and told the
staff to change his financial obligations. Id. He also claims that he observed penitentiary staff
attempt to resolve this issue with Johnson by phone. Id. at 24. He was told in an informal
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resolution response from a Unit Coordinator that this was not a DOC issue and to have his
attorney contact the Yankton County Clerk. Doc. 6 at 17. Hines then sent notarized letters to
Johnson on July 30, 2018, August 27, 2018, and March 8, 2019, requesting “original
documentation and documentation supporting the changes made to the Plaintiff’s Judgment[.]”
Doc. 27 at 25-26. Specifically, he requested a copy of his restitution sheet and any
documentation regarding the change in restitution in the first letter. Doc. 6 at 2. He repeated his
request in the second letter, mentioned that a staff member at the Yankton County Clerk’s Office
had contacted the DOC to convey changes to his financial obligations without informing him,
and included language stating that a refusal to reply would indicate that his “continued exclusion
from this matter is intentional.” Id. at 7. The third letter again emphasized the lack of
communication and requested financial obligation information. Id. at 8. He claims that he
received no response to these letters. Doc. 27 at 26. Hines alleges that he was needlessly exposed
to the wrongful death suit because Johnson concealed his financial obligations. Id. at 27-28.
According to Johnson, the Unified Judicial System used software known as JAS for
recordkeeping at the time of Hines’s sentencing. Doc. 58 ¶ 13. Johnson claims that under JAS,
all fields must be completed to record a judgment, and if a field was unknown, it should be filled
with 9s to satisfy the software. Id. Johnson submitted a page from the instruction manual
describing this procedure for restitution amounts. Doc. 58-2. Hines disputes the validity of this
document because the “9999999.99” figure in the text has two digits overlapping. Doc. 67 ¶ 13.
Johnson claims that because no restitution sheet had yet been filed and no specific restitution
order existed at the time, she entered “$9,999,999.99” as a placeholder figure in Hines’s
restitution amount. Id. ¶¶ 13, 18. On February 28, 2013, the Unified Judicial System converted
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records from JAS to new software. Id. ¶ 16. At this time, Johnson alleges that the $9,999,999.99
placeholder amounts were converted to zero. Id.
Johnson claims that between Hines’s sentencing and the February 28, 2013, software
conversion, Hines paid $112.50 towards costs and attorney’s fees. Id. ¶ 15. Hines does not
dispute this amount, but he alleges that the $112.50 was applied towards the $9,999,999.99
restitution owed. Doc. 67 ¶ 15. Johnson also claims that after the conversion and a rebalancing of
Hines’s payments and accounts, Hines owed $6,762.40, and that from that time until January 4,
2021, he has paid another $22. Id. ¶ 17. Hines disputes these claims, arguing that the restitution
was in no way associated with the court costs or attorney fees, that he has paid $617.47 towards
his court-ordered obligations as of November 20, 2020, and that his amount owed has increased
despite these payments. Doc. 67 ¶ 17. Johnson claims that Hines has been represented by counsel
since his initial charge, that she has no record of Hines’s counsel contacting her regarding these
issues, and that she has been advised in the past by judges “to deal with prisoners or inmates who
have legal counsel only through their counsel.” Doc. 58 ¶¶ 4-5. Hines argues that his habeas
action “was terminated on May 13, 2014[,] and reopened on July 9, 2019[,]” so he was not
represented by counsel when he sent the three letters to Johnson. Doc. 92 at 5. Johnson also
claims that no restitution sheet was ever filed and that the reference to the restitution sheet on file
in the judgment was an error on the part of the Yankton County State’s Attorney Office. See
Doc. 92-1 at 46. Johnson states that the filing of a restitution sheet is “not the responsibility of
the Clerk of Courts but the responsibility of the State’s Attorney.” Id. at 45.
Hines argues that the entry of $9,999,999.99 was a valid entry of restitution that Johnson
altered without a court order. Doc. 67 ¶ 13. Because the judgment references the “restitution
sheet “on file[,]” Hines claims that it must have existed at the time of the judgment. Doc. 40 at 5.
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He claims that because his judgment was finalized, the $9,999,999.99 entry was valid. See id. He
cites to his sentencing transcript, where the court orally ordered him to “repay all of the
restitution that is to be determined by this court[.]” Id. at 4 (citing Doc. 40-1 at 11). He argues
that South Dakota caselaw requires the oral sentence to control over any differences in the
written judgment. Id. at 5 (citing State v. Ford, 328 N.W.2d 263 (1982)). Thus, he believes that
the entry of $9,999,999.99 fulfilled the court’s determination of his restitution and was valid. See
id. at 4-5. Hines claims that he was granted habeas relief vacating his sentence on June 28, 2021,
after filing a state habeas corpus petition and that he is awaiting resentencing. Doc. 101 at 19.
Although he does not provide the order granting habeas relief itself, he has submitted a copy of a
notice of entry of this order from his attorney and portions of his amended habeas petition in
which he has highlighted facts and allegations regarding his restitution. Doc. 92-1 at 3-4, 6-15.
PROCEDURAL HISTORY
Hines first filed a complaint against Johnson, Yankton County, other Yankton County
individual defendants, and SD DOC defendants on June 26, 2019. Doc. 1. After granting Hines
leave to proceed in forma pauperis, this Court screened his complaint under 28 U.S.C. § 1915A
and dismissed it. Docs. 9, 19. Hines moved to amend his complaint, and this Court granted that
motion. Docs. 21, 24. Hines filed an amended complaint on August 10, 2020, which this court
screened under § 1915A, dismissing Hines’s claims in part and dismissing service in part. Docs.
27, 32. Specifically, Hines’s First Amendment claims for violation of his right to access judicial
records and Fourteenth Amendment claims for violation of his substantive due process rights
against Johnson and the Yankton County Doe defendants in their individual capacities survived
screening, and all other claims were dismissed. Doc. 32 at 15. Johnson now moves for summary
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judgment on Hines’s First Amendment and Fourteenth Amendment claims against her in her
individual capacity. See Doc. 85 at 1.
DISCUSSION
I. 	Hines’s Motion for Reconsideration Under Fed. R. Civ. P. 60(b)
Hines has filed a motion under Fed. R. Civ. P. 60(b) asking this Court to reconsider its
denial of three of his previous motions. Doc. 101.
A. Legal Standard
Federal Rule of Civil Procedure 60(b) authorizes a court to relieve a party from a final
judgment, order, or proceeding under the following circumstances:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly 	discovered
evidence that, with a reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b). Just like Rule 59(e) motions, Rule 60(b) motions cannot be used “to
‘tender new legal theories’ ” or to reargue “on the merits.” Arnold v. ADT Sec. Servs., Inc., 627
F.3d 716, 721 (8th Cir. 2010) (quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th
Cir. 1988)) (first quoted material); Broadway v. Norris, 193 F.3d 987, 990 (8th Cir.
1999) (second quoted material). To obtain relief under Rule 60(b)(6), a party must show that
“exceptional circumstances . . . denied the moving party a full and fair opportunity to litigate his
claim and . . . prevented the moving party from receiving adequate redress.” Harley v. Zoesch,
413 F.3d 866, 871 (8th Cir. 2005) (citation omitted).
B. Motion for Court’s Ruling and for Supplemental Pleadings
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Hines previously filed a motion for Court’s ruling and for supplemental pleadings. Doc.
44. This motion contained several requests which this Court denied. Doc. 66 at 9. Because Hines
now moves for reconsideration of several of those requests, this Court will address each request
individually.
1. 	Request to Rule on Rule 59(e) Reconsideration Motion
This Court screened Hines’s amended complaint, dismissing it in part and directing
service upon defendants in part. Doc. 32. Hines then filed a motion for reconsideration, asking
this Court to reconsider its screening under Fed. R. Civ. P. 59(e). Doc. 34. The Eighth Circuit
Court of Appeals has directed courts to consider such motions under Rule 59(e) or Rule 60(b),
and this Court analyzed the motion under both rules and denied it. Doc. 43. Believing that this
Court only construed his motion as a Rule 60(b) motion, Hines now asks this Court to consider
his motion under Rule 59(e). Doc. 101 at 4-6.
Under Rule 59(e), “[a] motion to alter or amend a judgment must be filed no later than 28
days after the entry of judgment.” This Court held that Rule 59(e) was not the proper avenue for
Hines’s motion because Hines was “not moving to alter or amend a judgment, but rather this
Court’s Screening Order[.]” Doc. 43 at 1. Although Hines, in his current motion, continues to
argue for his previous motion for reconsideration on the merits, he makes no argument that this
Court erred in its assertion that Rule 59(e) can only be used to alter or amend a judgment. See
Doc. 101 at 4-6. Instead, he merely argues that his motion would have been successful had it
been analyzed under Rule 59(e) and that because he labelled it a Rule 59(e) motion, this Court
should have done so. Thus, this request for reconsideration is denied.
2. 	Request to Supplement Pleadings
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Hines filed a request to supplement pleadings in which he sought to bring additional
claims against defendants dismissed from this suit in this Court’s screening order. Doc. 44 at 2-9.
Specifically, he sought to bring claims against SD DOC defendants for seizing his stimulus
payments and against Yankton County defendants for assigning him a $4,090 confinement fee
without his knowledge for time spent in the Yankton County Jail. Id. He now also claims that he
was recently assessed another $4,090 fee for a time period during which he was not incarcerated
at the Yankton County Jail. Doc. 101 at 9.
A court may “permit a party to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R.
Civ. P. 15(d). “A supplemental pleading . . . is designed to cover matters subsequently occurring
but pertaining to the original cause.” United States v. Vorachek, 563 F.2d 884, 886 (8th Cir.
1977) (quoting Berssenbrugge v. Luce Mfg. Co., 30 F. Supp. 101 (W.D. Mo. 1939)).
The purpose of Rule 15(d) is to promote as complete an adjudication of the dispute
between the parties as possible by allowing the addition of claims which arise after
the initial pleadings are filed. Leave to file a supplemental complaint under Rule
15(d) rests with the court's discretion and should be freely granted if it will promote
the just disposition of the case, not cause undue prejudice or delay, and not
prejudice the rights of any parties. The court applies Rule 15(d) in a manner aimed
at securing the just, speedy and inexpensive determination of every action–the
standard applicable to motions to amend under [Rule] 15(d) is essentially the same
standard that applies to [Rule] 15(a).
Smith v. Brown, 2018 WL 1440328, at *17 (D.S.D. Mar. 22, 2018) (quoting Carl Zeiss Meditec,
Inc. v. Xoft, Inc., 2011 WL 1326053 at *1 (D. Del. Apr. 5, 2011) (punctuation altered, internal
citations omitted). “In exercising its discretion, the court should also consider whether ‘the
proposed pleading is futile in that it adds nothing of substance to the original allegations or is not
germane to the original cause of action.’ ” Id. at *17 (quoting Lewis v. Knutson, 699 F.2d 230,
239 (5th Cir. 1983)). A pleading is futile when it does not withstand a motion to dismiss under
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Federal Rule of Civil Procedure 12(b)(6). Moody v. Vozel, 771 F.3d 1093, 1095-96 (8th Cir.
2014) (citation omitted). Under Rule 12(b)(6), a plaintiff must plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007).
This Court found that Hines’s proposed claims against SD DOC defendants were futile
because Hines failed to state a claim for which relief could be granted. Doc. 66 at 2-5. This Court
found that Hines’s due process rights were not violated by the alleged deprivation of his property
because state law provided an adequate post-deprivation remedy. Id. at 3-4. Hines now argues
that this Court erred in this finding because, under Hudson v. Palmer, this analysis does not
apply when the property deprivation is pursuant to established state procedure. Id. at 6-7 (citing
Hudson v. Palmer, 468 U.S. 517, 532 (1984)). Further, Hines cites to Lamar v. Hutchinson, an
Eastern District of Arkansas case in which a plaintiff’s similar claims survived screening. Id. at 7
(citing Lamar v. Hutchinson, 2021 WL 3518625 (E.D. Ark. Aug. 10, 2021).1
The SD DOC defendants are no longer named defendants in this action, and the alleged
stimulus payment seizure is in no way connected to the restitution claims that Hines brings
against the remaining defendants. Under Smith, leave to file a supplemental complaint under
Rule 15(d) is at the discretion of the Court. In this late stage of litigation, adding new defendants
and new claims based on new facts will not promote just disposition and will cause undue delay.
These claims, if Hines wishes to pursue them, are best suited for a new § 1983 complaint.
1 Although Hines only cites the screening order in which some of the plaintiff’s claims survived
screening in Lamar, this Court notes that the plaintiff in Lamar was later granted a preliminary
injunction because of his high likelihood of success on the merits on procedural due process and
Takings Clause grounds. See Lamar v. Hutchinson, 2021 WL 4047158, at *16 (E.D. Ark. Sept.
3, 2021).
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This Court also found that Hines’s proposed claims against the Yankton County
defendants were futile because Hines failed to state a claim for which relief could be granted.
Doc 66 at 4-5. Hines again argues that he was deprived of his property pursuant to an established
state procedure. Doc. 101 at 8-9. Hines refused to sign a Yankton County Notice of Confinement
Costs form acknowledging his confinement fee, indicating that he did have notice of the fee and
cannot state a due process claim for lack of notice. Doc. 44-1 at 64. Although he alleges that this
form was deficient because of a handwritten edit and because statutes provided on the form do
not apply to him, this does not implicate due process. See Doc. 44 at 7-8. Further, while Hines
alleges that the form was deficient, he does not allege that he was not provided with this form.
See id.
Hines’s claim that he has been charged a second confinement fee for a nonexistent
Yankton County Jail incarceration fails because this deprivation, as alleged, was not pursuant to
an established state procedure. In Logan v. Zimmerman Brush Co., the United States Supreme
Court found that a plaintiff alleging that he was deprived of a property interest pursuant to an
established state procedure challenges “not the . . . error, but the ‘established state procedure’ ”
itself. Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982). Here, Hines does not claim
that the Yankton County Jail has an established procedure for assessing confinement fees in
violation of his due process rights. See Doc. 101 at 9. Instead, he alleges that the Yankton
County Jail mistakenly assessed a confinement fee that should not have been assessed. See id.
Thus, even with this additional information, Hines fails to state a claim for which relief could be
granted against the Yankton County Jail. This request for reconsideration is denied.
3. 	Motion to Appoint Counsel and Motion for Preliminary Injunction
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Hines filed a motion to appoint counsel and a motion for a preliminary injunction against
Johnson preventing her from handling legal documents or participating in any legal actions
pertaining to Hines in Yankton County. Docs. 46 & 52. This Court denied both motions. Doc. 66
at 5-8. For the reasons below, this Court grants Johnson’s motion for summary judgment and
dismisses Hines’s claims. Thus, Hines’s motion to reconsider the denial of these two motions is
moot.
II. Johnson’s Motion for Summary Judgment
A. Legal Standard
The Court shall grant a motion for summary judgment “if 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). A summary judgment motion must be supported by evidence on the
record, which may include affidavits or declarations based upon personal knowledge. Fed. R.
Civ. P. 56(c). The non-moving party is entitled to the benefit of having all reasonable inferences
resolved in his or her favor, but the non-moving party must present specific facts showing a
genuine issue for trial. Atkinson v. City of Mountain View, 709 F.3d 1201, 1207 (8th Cir. 2013).
That is, a non-moving party must present “sufficient probative evidence” capable of supporting a
finding in his or her favor, not “mere speculation, conjecture, or fantasy.” Gregory v. City of
Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992) (en banc) (citation omitted).
Section 1983 creates civil liability for a person who, acting under the color of state law,
deprives another of his or her federal constitutional or statutory rights. 42 U.S.C. § 1983.
However, “[q]ualified immunity shields a government official from liability in a § 1983 action
unless the official's conduct violates a clearly established constitutional or statutory right of
which a reasonable person would have known.” Partlow v. Stadler, 774 F.3d 497, 501 (8th Cir.
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2014) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To overcome the defense of
qualified immunity, the plaintiff must show: (1) the facts, viewed in the light most favorable to
the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) the right
was clearly established at the time of the deprivation.” Howard v. Kan. City Police Dep't, 570
F.3d 984, 988 (8th Cir. 2009). For a right to be “clearly established,” “[t]he contours of the right
must be sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “Clearly established” law
cannot be demonstrated at a high level of generality; rather, it must put officers on “fair notice.”
City and County of San Francisco v. Sheehan, 575 U.S. 600, 613, 616 (2015) (citations omitted).
B. Access to Public Records Claim
Hines brings a claim against Johnson in her individual capacity for violating his First
Amendment right to access public judicial records. Doc. 32 at 15. The Supreme Court has
recognized a First Amendment and common law right of public access to court proceedings and
records. See, e.g., Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9 (1986) (recognizing a
“qualified First Amendment right of public access”); Nixon v. Warner Commc’ns, Inc., 435 U.S.
589, 597 (1978) (discussing the scope of the “common-law right of access to judicial records”).
The Eighth Circuit, in considering the applicability of this right to the opening of sealed
proceedings involving a handicapped child to the press, has explained that the analysis of this
right would be the same under the First Amendment and under the common law. Webster Groves
Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d 1371, 1374-75 (8th Cir. 1990).
Neither party has cited caselaw regarding the right to access public records in the context
of a § 1983 complaint. Courts primarily analyze this right when considering whether to seal or
unseal trial proceedings and documents. See, e.g., id. at 1376. In this context, “[e]very court has
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supervisory power over its own records[.]” Id. (quoting Nixon, 435 U.S. at 598). “When the
common law right of access to judicial records is implicated, we give deference to the trial court
rather than taking the approach of some circuits and recognizing a ‘strong presumption’ favoring
access.” Id. (quoting United States v. Webbe, 791 F.2d 103, 106 (8th Cir. 1986)). Johnson argues
that this deference permits courts in Yankton County to issue a policy of only communicating
with a prisoner’s lawyers, rather than with the prisoner. Doc. 87 at 9. Johnson further argues that
Hines’s right to access public records was not violated because one of his attorneys was able to
obtain a document showing Hines’s financial assessments as of March 4, 2019. Id. This
document showed that he owed $6,874.90. Id.
In order to overcome a qualified immunity defense, Hines must show that Johnson
violated his First Amendment right to access public records and that this right was clearly
established at the time that it was violated. Here, viewed in the light most favorable to the
nonmoving party, the evidence does not show that Johnson violated Hines’s right to access
public records. Hines sent three letters to Johnson requesting his restitution sheet and
documentation regarding the change to his restitution that he believed occurred on or around
May 2, 2018. See Doc. 27 at 25-26. Johnson contends that no restitution sheet was ever filed, and
Hines’s restitution was never changed; instead, the information entered into Hines’s record had
been changed to keep up with the shift in recordkeeping software over five years prior, and for
whatever reason, the records accessible by Hines while in SD DOC custody failed to reflect this
change. See Doc. 58 ¶¶ 13, 19; Doc. 27 at 23. Hines disputes this contention but puts forth no
evidence suggesting that the restitution sheet in question was ever filed other than to argue that
“[a] ‘restitution sheet’ should unequivocally exist[.]”. See Doc. 67 ¶ 19. Thus, Johnson did not
fail to send Hines public records because the requested record did not exist. She failed to send an
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explanation as to why the public records did not match his expectations. Further, regardless of
whether Hines was represented by counsel at the time that he wrote the three letters to Johnson,
Johnson believed that he had counsel and followed the advice of judges not to communicate with
prisoners who had counsel. Doc. 58 ¶¶ 4-5. At most, Johnson failed to respond to three letters, at
the advice of judges in her circuit, asking for an explanation regarding a complicated mistake
involving multiple parties and moving parts. This does not rise to a constitutional violation.
Even if Hines could show that Johnson violated his right to access public records, he
cannot show that this right was clearly established at the time of the deprivation. To show that a
right was clearly established, the plaintiff must provide either “controlling authority . . . which
clearly established the rule on which [he] seek[s] to rely” or “a consensus of cases of persuasive
authority such that a reasonable officer could not have believed that his actions were lawful.”
Wilson v. Layne, 526 U.S. 603, 617 (1999). The Supreme Court has noted, however, that “a
general constitutional rule already identified in the decisional law may apply with obvious clarity
to the specific conduct in question, even though ‘the very action in question has [not] previously
been held unlawful[.]’ ” United States v. Lanier, 520 U.S. 259, 271 (1997) (first alteration in
original) (quoting Anderson, 483 U.S. at 640). Here, Hines provides no cases of controlling or
persuasive authority showing that § 1983 liability exists for deprivation of the right to access
public records. He cannot satisfy the narrow exception under Lanier because he cites to no
decisional law regarding any § 1983 cases involving this right or an applicable general
constitutional rule. Thus, Johnson is entitled to qualified immunity on Hines’s First Amendment
claim.
C. Substantive Due Process Claim
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Hines brings a claim against Johnson in her individual capacity for violating his
substantive due process rights under the Fourteenth Amendment. Doc. 32 at 15. For conduct to
amount to a substantive due process violation, the plaintiff must allege facts to show that the
state actor’s conduct was conscience shocking. County of Sacramento v. Lewis, 523 U.S. 833,
847 (1998) (citing Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992)). A plaintiff must
show conduct “so severe . . . so disproportionate to the need presented, and . . . so inspired by
malice or sadism . . . that it amounted to a brutal and inhumane abuse of official power literally
shocking to the conscience.” Buckley v. Ray, 848 F.3d 855, 863 (8th Cir. 2017) (omissions n
original) (quoting Truong v. Hassan, 829 F.3d 627, 631 (8th Cir. 2016)). Mere negligence or
even gross negligence does not rise to level of conscience shocking. Hart v. City of Little Rock,
432 F.3d 801, 805-06 (8th Cir. 2005) (citations omitted).
Here, Hines alleges that Johnson intentionally concealed and withheld information
regarding his restitution. Doc. 27 at 27-28. He claims that his ability to pursue an appeal of his
sentence and habeas relief regarding his restitution were impeded by Johnson. Doc. 92 at 8. He
also claims that had he owed the $9,999,999 in restitution, he could have raised that as a defense
in his wrongful death suit and could have avoided emotional stress and attorney’s fees. Id. at 8-9.
But these allegations are not supported by the evidence. Evidence shows that, at most, Johnson
failed to respond to letters on the advice of the judges in her circuit. Hines cites to the Yankton
County State’s Attorney’s return to his amended petition for writ of habeas corpus in which the
State’s Attorney argues that a due process claim regarding restitution should have been brought
in direct appeal, not a habeas corpus petition. Id. at 9; Doc. 92-1 at 22. But the alleged
concealment occurred in 2018 and 2019, well after Hines’s appeal, so it could not have impeded
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those claims. Further, Hines alleges that he has succeeded in his habeas efforts regarding his
judgment, so that claim has not been impeded.
Hines cannot explain how his restitution would have provided a defense in his wrongful
death suit. Had he owed $9,999,999 in restitution, any civil judgment against him would have
been offset up to that amount under SDCL § 23A-28-9, but this is not a defense to be raised, and
in any case, he did not owe that $9,999,999. Johnson’s conduct does not rise to the “brutal and
inhumane abuse of official power” contemplated by a violation of substantive due process rights
under Buckley. Because no constitutional violation has occurred, Johnson is entitled to summary
judgment on Hines’s Fourteenth Amendment substantive due process claim.
III. 	Claims Against the Yankton County Doe Defendants
“Jane or John Doe(s), Employed by Yankton County[,]” are named defendants served in
this lawsuit against whom, in their individual capacities, Hines’s claims for violation of his First
and Fourteenth Amendment rights survived screening. Doc. 37 at 1-3; Doc. 32 at 15. Hines
alleges that one or more individuals from the Yankton County Clerk of Courts Office
communicated with penitentiary staff regarding his financial obligations. Doc. 27 at 23-24. Other
than this one allegation, Hines’s claims all involve conduct by Johnson, not the Doe defendants.
Under 28 U.S.C § 1915(e)(2), the court “shall dismiss the case at any time” if it determines that
the action fails to state a claim on which relief may be granted. 28 U.S.C. § 1915(e)(2) (emphasis
added). Hines only alleges that the Doe defendants played a very small role in Johnson’s conduct
for which this court has granted summary judgment to Johnson. Thus, Hines’s claims against
Jane or John Doe(s) in their individual capacities are dismissed under 28 U.S.C. §
1915(e)(2)(B)(ii).
Accordingly, it is ORDERED:
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1. 	That Johnson’s motion for summary judgment (Doc. 85) is granted.
2. 	That Hines’s motion for reconsideration under Fed. R. Civ. 60(b) (Doc. 101) is denied.
3. 	That Hines’s request for hearing (Doc. 84) and motion for hearing of summary
judgment motion (Doc. 88) are denied as moot.
4. 	That Hines’s claims against Jane or John Doe(s) in their individual capacities are
dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii).
5. 	That judgment is entered in favor of Jody Johnson and Jane or John Doe(s) and against
Nicholas Stewart Hines.
BY THE COURT:
________________________________
Lawrence L. Piersol
United States District Judge
DATED March 10, 2022.
ATTEST:
MATTHEW W. THELEN, CLERK
________________________
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