Lewis v. State of South Dakota

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
AIMLEE LEWIS,
Plaintiff,
vs.
STATE OF SOUTH DAKOTA,
COUNTY OF PENNINGTON,
IN CIRCUIT COURT, SEVENTH
JUDICIAL CIRCUIT,
Defendant.
CIV. 21-5083-JLV
ORDER
Plaintiff Aimee Lewis, appearing pro se, filed a complaint against
Defendant State of South Dakota, County of Pennington, in Circuit Court,
Seventh Judicial Circuit. 	(Docket 1). 	Defendant filed a motion to dismiss
together with a supporting legal memorandum. 	(Dockets 9 & 10). 	Plaintiff
subsequently filed a supplement to her complaint, an amendment to the
complaint and a brief in resistance to the defendant’s motion to dismiss.
(Dockets 11, 13 & 15).
Defendant moves to dismiss plaintiff’s complaint “due to insufficient
service of process, abstention, judicial immunity and lack of subject matter
jurisdiction.” 	(Docket 9 at p. 1). 	Plaintiff’s responsive brief addressed some of
defendant’s argument. 	(Docket 15).
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Service of Process
Defendant argues plaintiff failed to effectuate service of process of the
summons and complaint on either the Governor or the Attorney General of the
State of South Dakota as required by Fed. R. Civ. P. 4(j)(2) and S.D.C.L. § 15-6-
4(d)(5). 	(Docket 9 at p. 2). 	Additionally, defendant submits the record shows
plaintiff served the summons and complaint herself on the “Pennington County
Courthouse.” 	(Docket 10 at p. 3) (referencing Docket 7).
Ms. Lewis argues she completed service by certified mail on defendant’s
attorney pursuant to Fed. R. Civ. P. 5 and by certified mail on Governor Noem
pursuant to Fed. R. Civ. P. 4(j). 	(Docket 15 at pp. 2-3). 	As a non-attorney,
plaintiff contends she substantially complied with the rules for service of
process. 	Id.
Fed. R. Civ. P. 4(c)(2) requires that a summons and complaint must be
served by a non-party to the action. 	“A summons must be served with a copy
of the complaint. . . . Any person who is at least 18 years old and not a party
may serve a summons and complaint.” 	Fed. R. Civ. P. 4(c)(1) and (2)
(emphasis added).
In this case, Ms. Lewis attempted service of process herself by personally
leaving a copy of the summons at the “Pennington County Courthouse” on
November 30, 2021. 	See Docket 7. 	She later attempted service upon
Governor Noem by certified mail. 	See Docket 14.
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The court recognizes plaintiff’s pro se status. 	However, “[e]ven pro se
litigants must comply with court rules and directives.” 	Soliman v. Johanns,
412 F.3d 920, 922 (8th Cir. 2005). 	In addition to being defective because the
Pennington County Courthouse is not an entity subject to process, plaintiff’s
effort to simply leave a copy of the summons at that location fails.
Additionally, Ms. Lewis’ interpretation of Rule 4(j) and Rule 5 misses the mark.
Service of process under Rule 4(j) still requires that a non-party complete
delivery of the summons and complaint on the governor. 	That was not
completed in this case. 	Serving the governor by certified mail fails to comply
with Rule 4.
Similarly, Rule 5 contemplates before an attorney can be served with any
pleading the party itself must have been served to start the proceeding. 	After
service of process on the party, all subsequent filings can be served
electronically or by mail on the party’s attorney. 	Fed. R. Civ. P. 5(b)(1). 	Ms.
Lewis is not permitted to ignore or bypass the obligations imposed by Rule 4 (c)
and (j) and Rule 5.
For these reasons alone, plaintiff’s complaint must be dismissed
pursuant to Fed. R. Civ. P. 12(b)(5). 	However, the court will address the
remainder of defendant’s grounds for dismissal as those arguments are
meritorious and require dismissal pursuant to 12(b)(1).
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Abstention
Defendant contends plaintiff filed the same claims in federal court in
2018. 	(Docket 10 at p. 3) (referencing Lewis v. Seventh Judicial Court, et al,
CIV. 18-5071 (D.S.D. 2018)). 	In the prior proceeding, defendant contends the
court refused to resolve Ms. Lewis’ claims under the abstention doctrine
espoused in Younger v. Harris, 401 U.S. 37 (1971). 	Id. at pp. 3-4. 	While the
court dismissed Ms. Lewis’ 2018 complaint without prejudice, defendant
argues “nothing has changed between the . . . order of dismissal and her
refiling of a complaint in the present case.” 	Id. at p. 4.
Ms. Lewis’ response insists the court’s decision to abstain in 2018 was
invalid. 	(Docket 15 at p. 3). 	Plaintiff argues the pattern and practice of the
state court to intervene in plaintiff’s parent-child relationship violates Article VI
of the United States Constitution. 	Id. at p. 4. 	Because Younger involved a
criminal proceeding, not a civil proceeding, plaintiff submits she should not be
compelled to litigate her constitutional and statutory claims in state court. 	Id.
at pp. 4-5. 	Plaintiff argues the state court judge and her child’s biological
father engaged in a conspiracy to threaten or inhibit plaintiff’s constitutional
rights. 	Id. at p. 5-6 (citing 18 U.S.C. §§ 241-242 and 28 U.S.C. § 455).
As the court reminded Ms. Lewis in January 2019, the rule announced
in Younger “directed federal courts to avoid ‘a violation of the national policy
forbidding federal courts to stay or enjoin pending state court proceedings
except under special circumstances.’ ” 	Lewis, CR. 18-5071, Docket 62 at
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pp. 3-4) (citing Younger, 401 U.S. at 41). 	While Ms. Lewis again claims
Younger only applies to criminal proceedings, the court in Lewis stated that
“[c]ircumstances fitting within the Younger doctrine . . . include [state] civil
proceedings involving certain orders that are uniquely in furtherance of the
state courts’ ability to perform their judicial functions.” 	Id. at p. 4 (emphasis
added) (citing Sprint Communications, Inc. v. Jacobs, 571 U.S. 69, 73 (2013)
(quoting New Orleans Public Service, Inc. v. Council of the City of New Orleans,
491 U.S. 350, 367-68 (1989)).
Ms. Lewis must be reminded what the court said in 2019. 	“State courts
are competent to adjudicate federal constitutional claims . . . and when a
litigant has not attempted to present [her] federal claims in related state-court
proceedings, a federal court should assume that state procedures will afford an
adequate remedy, in the absence of unambiguous authority to the contrary.”
Id. at pp. 4-5 (citing Oglala Sioux Tribe v. Fleming, 904 F.3d 603, 613 (8th Cir.
2018); internal quotation marks and citations omitted).
“Under the Younger abstention doctrine, Ms. Lewis” must “litigate her
state statutory claims regarding child custody, as well as her federal
constitutional and statutory claims associated with that state proceeding, in
state court.” 	Id. at p. 5 (emphasis added). 	This obligation includes appealing
her claims through the South Dakota Supreme Court. 	Id. at p. 4. 	If Ms.
Lewis is dissatisfied with the decision of the South Dakota Supreme Court, that
[f]inal 	judgment[] 	. . 	. 	may 	be 	reviewed 	by 	the 	[United 	States]
Supreme Court by writ of certiorari . . . where the validity of a statute
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of 	any 	State 	is 	drawn 	in 	question 	on 	the 	ground 	of 	its 	being
repugnant to the Constitution . . . or laws of the United States, or
where any . . . right [or] privilege . . . is specially set up or claimed
under the Constitution . . . of . . . the United States.
28 U.S.C. § 1257. 	“Abstention is still appropriate” in 2022 as it was in 2019.
Lewis, CR. 18-5071, Docket 62 at p. 4.
The court grants defendant’s motion to dismiss under the Younger
abstention doctrine, which was extended to state civil proceedings by New
Orleans Public Service, Inc.
Judicial Immunity
Defendant asserts plaintiff’s complaint, filed pursuant to 42 U.S.C.
§ 1983, must be dismissed because the complaint fails to name as a defendant
a specific judge or other judicial official. 	(Docket 10 at pp. 4-5) (referencing
§ 1983). 	“Because Defendant is entitled to immunity, and Plaintiff has failed
to show any reason why that immunity is not available here,” defendant
concludes “this matter must be dismissed.” 	Id. at p. 5.
Plaintiff’s brief did not respond to defendant’s judicial immunity defense.
Rather, Ms. Lewis’ brief asserts the state court judge and the father of her son
were engaged in a conspiracy in violation of 18 U.S.C. § 241 and they sought to
deprive her of the rights granted to plaintiff under the United States
Constitution in violation of 18 U.S.C. § 242. 	(Docket 15 at pp. 5-6). 	Because
of this relationship, plaintiff asserts the state court judge should be disqualified
pursuant to 28 U.S.C. § 455. 	Id. at p. 6.
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There is no private cause of action arising from the criminal statute cited
by Ms. Lewis. 	See Frison v. Zebro, 339 F.3d 994, 999 (8th Cir. 2003)
(“Criminal statutes, which express prohibitions rather than personal
entitlements and specify a particular remedy other than civil litigation are . . .
poor candidates for the imputation of private rights of action. . . .”) (internal
citation omitted). 	“Where the text and structure of a statute provide no
indication that Congress intends to create new individual rights, there is no
basis for a private suit, whether under [42 U.S.C.] § 1983 or under an implied
right of action.” 	Id. (citing Gonzaga University v. Doe, 536 U.S. 273, 286
(2002)). 	There is no indication Congress intended to create a private cause of
action by enacting 18 U.S.C. § 241.
Section 242 of Title 18 creates a criminal offense if a person, acting
under color of any law subjects another to the deprivation of her civil rights on
the basis of alien status, color or race. 	This provision does not create “a
private cause of action that may be pursued by individuals.” 	Gustafson v. City
of West Richland, Nos. CV-10-5040, CV-10-5058, 2011 WL 5507201 at *4
(E.D. Wash. Nov. 7, 2011). 	See also Frison, 339 F.3d at 999.
Finally, plaintiff’s reference to 28 U.S.C. § 455 is misplaced. 	This federal
statute has no bearing on whether a state court judge should remove himself
from a state case.
Specifically addressing defendant’s ground for dismissal, the court finds
the complaint fails to name as a defendant a specific state court judge or other
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judicial officer who is the focus of the complaint. 	Even if the complaint had
named State Circuit Court Judge Day referenced in plaintiff’s brief, the
complaint would still be subject to dismissal.
Plaintiff’s claims against Judge Day fail based on judicial immunity.
Although “judges are generally immune from suit for money damages, they can
be sued in two circumstances. 	First, a judge may be subject to suit for non-
judicial acts. . . . Second, judges are not immune from lawsuits based on
actions taken in the complete absence of all jurisdiction.” 	Duty v. City of
Springdale, Ark., 42 F.3d 460, 462 (8th Cir. 1994) (internal citations omitted).
Neither exception applies in this case. 	The court finds plaintiff may not bring
her claims against Judge Day.
Rooker-Feldman Doctrine
Defendant argues plaintiff’s effort “to overturn a state court child custody
decision” violates the Rooker-Feldman doctrine, which precludes federal
district courts “from serving as appellate courts to review state court
judgments.” 	Id. at pp. 5-6 (referencing Dornheim v. Sholes, 430 F.3d 919, 923
(8th Cir. 2005) (referencing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923);
District Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)).
Because plaintiff’s complaint seeks to have the court “overturn a final order by
the state court,” the defendant concludes the court “lacks subject matter
jurisdiction.” 	Id. at 6.
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While not specifically addressing defendant’s Rooker-Feldman doctrine
defense, plaintiff contends Article VI of the United States Constitution and
particularly the Supremacy Clause requires that if “the laws of the federal
government are in conflict with the laws of a state’s government, the federal law
will supersede the state law.” 	(Docket 15 at p. 9). 	Arguing the state court
orders violated Ms. Lewis’ and her son’s United States Constitutional rights,
plaintiff asserts this federal court must “stop the Pennington County
Courthouse from enabling [the father of her son] (who committed domestic
violence against me and my son) to have power over me and [her son].”
(Docket 1 at p. 5).
It is unclear from plaintiff’s complaint and brief whether the state court
proceedings have ended. 	That is, whether plaintiff has exhausted her claims
in the South Dakota state court system. 	There is no indication in the record
that the South Dakota Supreme Court has ruled upon an appeal by Ms. Lewis
from the rulings of the Circuit Court, Seventh Judicial Circuit, Pennington
County.
“The United States Supreme Court has . . . narrowed application of the
Rooker/Feldman doctrine to . . . ‘cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the
court proceedings commenced and inviting district court review and rejection of
those judgments.’ ” 	Novotny v. Tripp County, S.D., No. CIV 08-3020, 2010 WL
4791815, at *3 (D.S.D. Nov. 18, 2010) (citing Exxon Mobil Corp. v. Saudi Basic
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Industries Corporation, 544 U.S. 280, 281 (2005)). 	“Exxon Mobil makes clear
that the Rooker/Feldman doctrine precludes federal district court jurisdiction
only if the federal suit is commenced after the state court proceedings have
ended.” 	Id. (citing Exxon Mobil, 544 U.S. at 292). 	“ ‘Disposition of the
federal action, once the state-court adjudication is complete, would be
governed by preclusion law.’ ” 	Id. (citing Exxon Mobil, 544 U.S. at 292;
Dornheim, 430 F.3d at 923).
As in Novotny, Ms. Lewis complains of actions and orders entered by a
state court judge. 	“A federal court does not exercise supervisory control over
state court judges. 	Nor, in general, can a collateral attack in a civil case be
launched against orders issued by state court judges.” 	Id. 	“[A] federal court
should not be delving into any such matters which occurred in state court
since a federal court would thus be required to ‘go behind’ the protection
orders entered by the state court.” 	Id.
Applying either the Rooker-Feldman doctrine or the preclusion doctrine,
the court finds it must refrain from engaging in an evaluation of the conduct of
the state court judge and the state circuit court for the matters raised by Ms.
Lewis. 	Defendant’s motion for dismissal on this basis is granted.
Fed. R. Civ. P. 12(h)(3)
Rule 12(h)(3) requires the court sua sponte to determine whether it has
subject-matter jurisdiction. 	“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.” 	Fed. R. Civ. P.
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12(h)(3). 	Independent of defendant’s motion, the court finds plaintiff’s
complaint by naming a state court entity or organization, without identifying
particular individuals who are alleged to have violated Ms. Lewis’ federal
constitutional rights, fails as a matter of law. 	The court does not have subject-
matter jurisdiction. 	Id.
While the court is again dismissing Ms. Lewis’ complaint without
prejudice, that it not an invitation to file yet another complaint in federal court.
Plaintiff’s claims, constitutional and statutory, must be brought in the state
court proceeding with jurisdiction over custody and visitation. 	If Ms. Lewis is
dissatisfied with the resolution of her claims by the South Dakota Supreme
Court, she may seek review by the United States Supreme Court. 	28 U.S.C.
§ 1257. 	Any further misguided complaints filed in federal court may result in
sanctions against Ms. Lewis, personally. 	See Fed. R. Civ. P. 11.
ORDER
Based on the above analysis, it is
ORDERED that defendant’s motion (Docket 9) is granted.
IT IS FURTHER ORDERED that plaintiff’s complaint (Docket 1) is
dismissed without prejudice.
Dated April 20, 2022.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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