Evens v. Gilbertson et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
RACHEL EVENS,
Plaintiff 5:22-cv-5057
vs. MEMORANDUM
DAVID GILBERTSON,STEVEN R. AND ORDER
JENSEN, JANINE M.KERN,MARK E.
SALTER,PATRICIA J. DEVANEY,
SCOTT P. MYREN,
Defendants
Pending before the Court is Defendants' Motion to Dismiss(Doc. 6)the
Complaint(Doc. 1). Plaintiff has responded (Doc. 10)and Defendants have
replied (Doc. 9). Plaintiff requests relief in the form of money damages and a
restraining order preventing further litigation of her divorce and custody case,
51DIV18-41, in Pennington County, SD. Plaintiff supports her 96-page Complaint
and attachments with an additional 43-page document entitled "Information to
Support Complaint." (Doc. 2). Defendants offer several rationales for dismissal.
(Doc. 7).
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Plaintiff has filed a number of lawsuits related to this one. She sued South
Dakota Circuit Court Judge Connolly and the South Dakota Supreme Court
Justices in the United States District Court for the District of Montana (9:20-cv-
00165); South Dakota Circuit Judge Linngren in the same court(9:20-cv-00172);
and South Dakota Circuit Judge Gusinsky in the United States District Court for
the District of South Dakota(5:22-cv-5054). The Court takes Judicial Notice of
these court records. Fed. R. Evid. 201.
I. Background
Plaintiffs husband at the time filed for divorce in the Circuit Court ofthe
Seventh Judicial District, Rapid City, SD,51DIV 18-41. The case was assigned to
Judge Connolly who granted the divorce on the grounds ofextreme cruelty, and
made determinations concerning child custody and support, property division,
attorneys' fees, and costs. Evens v. Evens, 951 N.W.2d 268,274-75 (S.D. 2020).
He also issued an Order holding Plaintiff in contempt of court. Id. at 276. Plaintiff
appealed to the South Dakota Supreme Court, which resolved the issues against her
in a lengthy opinion. Evens,951 N.W.2d at 277-83. Plaintiffs Petition for
Rehearing was denied.(Doc. 1-1, PgID 75).
Dissatisfied with the result of her efforts in the South Dakota courts. Plaintiff
turned to the federal courts. Her lawsuit against Judge Connolly and the South
Dakota Supreme Court based on the outcome ofthe divorce proceeding was
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dismissed for lack of personal jurisdiction. Evens v. Connolly, 2021 WL 1050455,
*3(D.MT. 2021). The case against Judge Linngren, who had issued orders
concerning child custody, met the same fate for the same reason. Evens v.
Linngren, 2021 WL 1248624, *2(D. MX.2021). Both Judges recused themselves
after Plaintiff sued them, and Judge Gusinsky was assigned the case. Plaintiff sued
him alleging he had engaged in "egregious discrimination" and violations of her
rights,(5:22-cv-5054,PgID 133), and the case was dismissed. Evens v. Gusinsky,
2022 WL 2981649, *4(D.S.D. 2022).
In the case before this Court, Plaintiff alleges Defendants have failed "to
uphold their swom duties oftheir judicial office through violating their state's
constitution, and refusing to uphold equal justice for all citizens by stark retaliation
and blatantly discriminating against a pro se' litigant." (Doc. 1,PgID 1). She
claims there was an "illegal divorce action" involving herself and her former
husband, based on an alleged lack ofjurisdiction. (Doc. 1,PgID 6). She claims
"fraudulent and false allegations" were made in the divorce proceeding.(Id.).
Although she fails to delineate her claims, she presents a narrative raising four
"issues" in the current proceeding, including lack ofjudicial immunity,judicial
discrimination against her as a pro se litigant, lack ofjurisdiction for the divorce
proceeding, and "cruel and undue" punishment.(Id.). As noted, she requests
money damages and an injunction prohibiting the litigation of all matters relating
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to 51DIV 18-41 because it is "nullified and void." (Id., PgID 16). She alleges as a
basis for jurisdiction that the Defendants have violated 18 U.S.C § 241, 18 U.S.C.
§ 242,42 U.S.C. § 1981 and 42 U.S.C. § 1983. She has indicated that the parties
are residents of different states. (Id., PgID 17).
The Defendants have moved to dismiss, asserting lack of subject matter
jurisdiction, the need for abstention, inapplicability of42 U.S.C §1983 as the basis
for an injunction, and judicial immunity.
II. Discussion
A. Legal Standard- Motion to Dismiss
The Defendants have moved to dismiss Plaintiffs complaint under F.R.C.P.
12(b)(1), lack of subject matter jurisdiction, and 12(b)(6), failure to state a claim
upon which relief can be granted. (Doc. 6). The standard governing dismissal
pursuant to a motion to dismiss was set forth mAshcroftv. Iqbal, 556 U.S. 662,678
(2009) as follows: "To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible
on its face'" (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). See
Spagna v. Phi Kappa Psi, Inc., 30 F.4th 710, 715 (8th Cir. 2022)(dismissal proper
where factual allegations failed to state a plausible claim for relief and amounted to
only a possibility that relief was warranted); Faulk v. City ofSt. Louis, 30 F.4th 739,
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744 (8th Cir. 2022) (quoting Iqbal standard and reversing denial of motion to
dismiss).
When a plaintiff proceeds pro se, the court must construe the complaint
liberally, but the pleading "must allege sufficient facts to support the claims
advanced." Stone v. Harry, 364 F.3d 912,914(8th Cir. 2004)(cleaned up). The
court is not required to "construct a legal theory" for a plaintiff. Id. As the Iqbal
Court noted,"Threadbare recitals ofthe elements of a cause of action, supported
by mere conclusory statements, do not suffice." 556 U.S. at 678(quoting Twombly,
550 U.S. at 555). See also Marglon v. City ofSioux Falls Police Dept., 2020 WL
906521, *2(D.S.D. 2020).
Plaintiff asserts that she and the Defendants are residents of different states,
and the Court acknowledges jurisdiction based on diversity of citizenship. 28
U.S.C. § 1332. She has requested damages in the amount of"as much as is
allowable by law." (Doc. 1, PgID 17). Although it is not clear that Plaintiffs
complaint meets the standard of Twombly and Iqbal, the nature of her allegations
against these Defendants prompts the Court to resolve them.
B.42 U.S.C.§ 1983 claim—^Judicial Immunity
Plaintiff has relied upon 42 U.S.C. § 1983 as the basis of her suit against the
Justices. Section 1983 provides a remedy for violations of all "rights, privileges, or
immunities secured by the Constitution and laws" ofthe United States. 42 U.S.C. §
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1983. To state a claim under § 1983, a plaintiff must establish;(1)the violation of
a right secured by the Constitution or laws ofthe United States and (2)the alleged
deprivation ofthat right was committed by a person acting under color of state law.
JVest V. Atkins, 487 U.S. 42,48(1988). Furthermore, the Supreme Court has
reinforced that § 1983 "merely provides a method for vindicating federal rights
elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1994)(citing Baker v.
McCollan,443 U.S. 137, 144, n.3 (1979)). See also Marglon, 2020 WL 906521,
*3.
The nature ofthis lawsuit has prompted both Plaintiff and Defendants to
invoke the doctrine ofjudicial immunity. Absolute judicial immunity from
lawsuits brought pursuant to 42 U.S.C. § 1983 has long been recognized. Mireles
V. Waco,502 U.S. 9(1991)(citing authority); Robinson v. Freeze, 15 F.3d 107,
108 (8th Cir. 1994)("Judges performing judicial functions enjoy absolute
immunity from §1983 liability"). See also Hamilton v. City ofHayti, Missouri, 948
F.3d 921,925 (8th Cir. 2020)(same). The rationale supplied by the Supreme Court
is the "long-settled understanding that the independent and impartial exercise of
judgment vital to the judiciary might be impaired by exposure to potential damages
liability." Antoine v. Byers & Anderson, Inc., 508 U.S. 429,435 (1993). As the
Mireles Court stated,"a judicial officer, in exercising the authority vested in him,
shall be free to act upon his own convictions, without apprehension of personal
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consequences to himself." 502 U.S. at 10. Judges are protected when they act in
their "judicial capacity," which is gauged by "the nature ofthe act
itself, i.e., whether it is a function normally performed by a judge, and to the
expectations ofthe parties, i.e., whether they dealt with the judge in his judicial
capacity." Mireles, 502 U.S. at 12(quoting Stump v. Sparkman,435 U.S. 349, 362
(1978)). See also Pierson v. Ray,386 U.S. 547, 553-54(1967). As the Eighth
Circuit has explained,"A judge is absolutely immune from liability if(1)the judge
had subject matter jurisdiction, and(2)the acts complained of were judicial acts."
Smith V. Bacon,699 F.2d 434, 436(8th Cir. 1983)(cleaned up).
These principles were applied in Stanko v. South Dakota, where an
individual had been charged with several misdemeanors and later sued the
magistrate judge who handled his case. 2019 WL 10890199,*2(D.S.D. 2019).
The plaintiff alleged the judge had no jurisdiction over him and that probable cause
had not been established. Id., *S. The court rejected the arguments, explaining the
judge had subject matter jurisdiction because she was the magistrate judge
assigned to that court to handle misdemeanor cases. Id. The court quoted Eighth
Circuit precedent to the effect that a judge's act is "judicial" if"it is one normally
performed by a judge and ifthe complaining party is dealing with the judge in his
judicial capacity." Id.,*S (quoting Birch v. Mazander,678 F.2d 754, 756(8th Cir.
1982)). Because the magistrate was exercising jurisdiction in the case, and was
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performing a judicial function, she had absolute judicial immunity and the claim
was properly dismissed.Id., *9. Similarly, in Meyer v. Pfeifle, a litigant
dissatisfied with the outcomes oftwo criminal cases and a divorce action sued the
three South Dakota Circuit Courtjudges who had presided over the actions. 2019
WL 1208776(D.S.D. 2019). Plaintiff alleged violations of her civil rights and
other claims. M,*1. In dismissing, the court reasoned the judges were full-time
judges in positions authorized by the state legislature whose actions were "those
normally performed by a judge," and the actions were done by the named judges
"in their judicial capacity." Id., *7. The court concluded the judges had subject
matter jurisdiction, and their contact with the defendant was only because they
were assigned to hear the case. Id. Therefore, they had "absolute judicial
immunity," thus depriving the federal court of subject matter jurisdiction to hear
the claims against them and mandating dismissal ofthe plaintiffs claims. Id.
Pertinent to this case and the question ofthe South Dakota Supreme Court's
jurisdiction, the Constitution ofthe State of South Dakota provides as follows:
"The Supreme Court shall have such appellate jurisdiction as may be provided by
the Legislature, and the Supreme Court or any justice thereof may issue any
original or remedial writ which shall then be heard and determined by that
court." S.D. CONST,art. V,§ 5. The South Dakota Legislature has provided
general rules pertaining to the Supreme Court at S.D.C.L. Ch. 16-1 and 16-3. In the
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case at bar, the Justices ofthe South Dakota Supreme Court addressed the case of
Evens v. Evens on appeal from the Circuit Court ofthe Seventh Judicial District
and issued an opinion deciding the issues raised. 951 N.W.2d 277-284. The
Justices were acting in their judicial capacity when they did so. Contrary to
Plaintiffs theories, the subject matter jurisdiction referenced in cases such as Smith
V. Bacon, above, refers to the court dealing with an issue within its purview, and
not to the ultimate decision on a jurisdictional question raised by a party to the
case. Plaintiff may disagree with the outcome ofthe case, but it is clear the Justices
were acting in their official capacity and are immune from suit.
With respect to the issues raised in the Complaint, Plaintiffs Issue I appears
to be a pre-emptive strike couched as an issue, arguing the Defendants do not have
Judicial Immunity "when intentionally disregarding jurisdiction."(Doc. 1, PgID 7).
She is mistaken. As explained above, the South Dakota Supreme Court Justices
have judicial immunity in this lawsuit. When engaged in appellate review ofthe
divorce case ofEvens v. Evens,they were performing a judicial function in their
judicial capacities, as set forth in the Constitution ofthe State of South Dakota.
Plaintiffs Issue II alleges discrimination against Plaintiff as a pro se litigant,
specifically alleging the Justices have a conflict ofinterest, lack impartiality, and
ignored fraud upon the court.(Id.). These claims are not supported by a legal
theory cognizable under 42 U.S.C. § 1983. Furthermore, it appears Plaintiff bases
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her claim of conflict ofinterest and lack ofimpartiality on the fact that she sued
them in Evens v. Connolly, as discussed above. If that is the basis of her
allegation, she should understand that she cannot create a potential conflict by
suing the Justices and then force their removal from the case. If that is not the
basis of her allegation, none other appears. With respect to any possible fraud upon
the court, the Justices have the authority to address an allegation of fraud and
resolve it if they find it legally and factually established. Judicial immunity
protects them from a lawsuit when a litigant disagrees with their handling of such
an issue.
Plaintiffs Issue III alleges that subject matter jurisdiction in her divorce
action was not established, thus creating a due process violation. (Id., PgID 8).
Plaintiffthen appears to re-litigate the divorce action. Judicial immunity prevents
her from succeeding in her re-litigation efforts by seeking damages against the
Justices who affirmed the trial court on appeal in Evens v. Evens. Furthermore, her
claim does not amount to a theory cognizable under 42 U.S.C. § 1983.
Plaintiffs Issue IV alleges "Cruel Undue Punishment Prohibited."(Id., PgID
13). Plaintiff asserts there was no jurisdiction in the divorce proceeding and the
Justices erred by affirming the grant ofthe divorce on the grounds of extreme
cruelty. Plaintiffs effort to sue the Justices for damages on this basis fails once
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again based on the grounds ofjudicial immunity. Furthermore, this is not a claim
cognizable under 42 U.S.C. §1983.
In sum,Plaintiff seeks money damages from the Justices ofthe South
Dakota Supreme Court, who acted in their judicial capacity when they resolved the
issues in her appeal. Her claims fail, as the Justices are absolutely immune from
the liability she asks this Court to recognize. Because they are immune,the Court
does not have subject matter jurisdiction to determine Plaintiffs claims against
them. For this reason. Defendants' motion to dismiss(Doc. 6)is granted and
Plaintiffs claims are dismissed in their entirety.
C. Abstention
In accordance with Younger v. Harris,401 U.S. 37(1971), federal courts
must abstain from intervening in a variety of state court proceedings. As the
Eighth Circuit has explained, abstention is required when:"(1)there is an ongoing
state proceeding,(2)that implicates important state interests, and(3)that provides
an adequate opportunity to raise any relevant federal questions." Tony Alamo
Christian Ministries v. Selig, 664 F.3d 1245, 1249(8th Cir. 2012)(citing Plouffe v.
Ligon,606 F.3d 890, 894-95 (8th Cir. 2010)). The doctrine "reflects a strong
policy against federal intervention in state judicial processes in the absence of great
and immediate irreparable injury to the federal plaintiff." Oglala Sioux Tribe v.
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Fleming,904 F.3d 603,610(8th Cir. 2018)(quoting Moore v. Sims,442 U.S. 415,
423(1979)). Thus,in Oglala Sioux Tribe, the Eighth Circuit held that the federal
court should not intervene in a dispute between South Dakota officials and the
Oglala Sioux Tribe, Rosebud Sioux Tribe, and others over procedures for hearings
in connection with the temporary removal of children from their homes. The
ongoing nature ofthe dispute dictated that the federal courts refrain from deciding
the issues raised. Id. at 611-13.
Likewise in the case at bar, based on Plaintiffs request for injunctive relief,
it appears there may be ongoing litigation in connection with the dispute over the
custody of her children.(Doc. 1; Doc. 7,PgID 158). As other courts have
recognized, abstention in cases involving ongoing child custody disputes is
particularly appropriate. See, e.g.. Evens v. Gusinsky,2022 WL 2981649, *3;
Lewis V. Seventh Circuit Court-South Dakota Unified Judicial System, 2018 WL
7247048, *2(D.S.D. 2018); Carlson v. County ofRamsey, Minnesota, 2016 WL
3352196,*6(D. Minn. 2016). This is so because ofthe state's interest in handling
domestic relations issues which are a matter of state, not federal, law. Therefore,
this Court abstains from exercising jurisdiction over Plaintiffs ongoing divorce
and custody issues in the Seventh Judicial Circuit of South Dakota.
D. Additional issues
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1. Plaintiff has alleged that Defendants violated 18 U.S.C. §§ 241 and 242
in conspiring to and depriving her of various rights. Courts repeatedly have held
that there is no private right of action under 18 U.S.C. § 241. Federal authorities
have the task of determining whether to pursue criminal charges. United States v.
Wadena, 152 F.3d 831, 846(8th Cir. 1998)(cleaned up); Cokv. Cosentino, 876
F.2d 1, 2(1st Cir. 1989)(no private right of action under 18 U.S.C. §§ 241 and 242
againstjudge sued by litigant in divorce action). See also Mousseanx v. United
States Comm'r ofIndian Affairs, 806 F. Supp. 1433, 1437(D.S.D. 1992). Because
there is no private right of action under these provisions, nor evidence to support
the allegations in this case, this claim is dismissed.
2. Plaintiff has alleged that one or more Justices have violated the Judicial
Code of Ethics. Plaintiff has offered no facts to support this allegation and the
Court finds none in the Complaint. Even if Plaintiff had supported her claim with
facts, this Court is not the proper forum in which to resolve such a claim. For this
reason, the Court grants the Defendants' Motion to Dismiss.
CONCLUSION
Plaintiff has endeavored to have this Court provide a federal forum for her
lawsuit which emanated from the outcome in Evens v. Evens that she perceives as
adverse. This Court has determined that the Defendant South Dakota Supreme
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Court Justices have judicial immunity, and therefore dismisses Plaintiff s claims
for money damages in their entirety. In addition, to the extent Plaintiff s claims
concern ongoing litigation, this Court abstains.
Accordingly,IT IS ORDERED that Defendants' Motion to Dismiss(Doc. 6)
is granted in its entirety and Plaintiffs claims(Doc. 1)are dismissed.
Dated this ^ * day of September, 2022.
ATTEST:
MATTHEW W.THELEN,CLERK
BY THE COURT:
(Juuau.
Lawrence L. Piersol
United States District Judge
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