White v. Rapid City Police Dept., 1999 DSD 28

VERNA WHITE,
Plaintiff,
v.
RAPID CITY POLICE DEPARTMENT,
Tom Vlieger, Individually and in his official capacity as Rapid City Police Officer, and
Hazel Bonner,
Defendants.
[1999 DSD 28]

United States District Court
District of South Dakota-Western Division
CIV. 98-5048

MEMORANDUM OPINION AND ORDER

Elizabeth W. Holmes, Rapid City, SD
Attorney for Plaintiff

James S. Nelson, Donald P. Knudsen
Gunderson, Palmer, Goodsell & Nelson, Rapid City, SD
Attorneys for Defendant Rapid City Police Dept. and Vlieger

Hazel Bonner, Pro Se

Filed Sep 30, 1999

Hon. Karen E. Schreier, US District Judge

PROCEDURAL HISTORY

[&1] This case was originally filed in state court in Pennington County, South Dakota. Verna White (Aplaintiff@) filed a complaint against defendants alleging constitutional and statutory violations stemming from an incident that occurred on August 23, 1997. (Complaint at 2). The matter was removed to this Court based upon 28 USC. ' 1441 and 28 USC. ' 1446. (Docket #1). Pending before the Court are two separate motions for summary judgment. The first motion was submitted on behalf of defendants Rapid City Police Department (ARCPD@) and Sgt. Tom Vlieger (AVlieger@). (Docket #18). The second motion was submitted by defendant Hazel Bonner (ABonner@). (Docket #25).

[&2] Jurisdiction is based upon 42 USC. ' 1983, 28 USC. '' 1331, 1343(a)(1), and 1343(a)(3).

[&3] For the reasons discussed below, summary judgment related to the substantive constitutional rights claims either made by plaintiff or identified by this Court under 42 USC. ' 1983 and 42 USC. ' 1985 is granted on behalf of defendants RCPD, Vlieger, and Bonner. The state-based tort claims of intentional infliction of emotional distress and negligent infliction of emotional distress are remanded to state court.

BACKGROUND

[&4] This case is centered upon a child, Rosie Mae White Tail (ARosie@), who at the time of the alleged events was eight years of age. Plaintiff alleges RCPD, Vlieger, and Bonner violated her constitutional rights and committed the state-based torts of intentional and negligent infliction of emotional distress. Complaint at 1, 5-7. These violations purportedly occurred when Vlieger and Bonner, acting pursuant to a request from Rosie=s mother, Leah Mad Plume Morsette (AMorsette@), removed Rosie from plaintiff=s home and returned her to the custody of Morsette. Complaint at 3-4.

FACTS

[&5] Rosie was born on September 4, 1988, in North Dakota. (Plaintiff=s Statement of Disputed and Undisputed Facts (PSDUF) at & 7. She resided with her mother, Morsette, and her father, Richard White Tail (AWhite Tail@) from one to four months following her birth. Id. Rosie is an enrolled member of the Fort Berthold Tribe in North Dakota. White Deposition (AWhite Depo.@) at 35-36. Between October and December of 1988, Rosie, Morsette, and White Tail moved in with plaintiff in Washington state. PSDUF at & 8. White Tail moved back to North Dakota in the spring of 1989. PSDUF at & 9. Morsette and Rosie lived with plaintiff on and off until either 1994 or 1995. PSDUF at & 10. At some point in 1994 or 1995, Morsette and Rosie moved back to North Dakota while Morsette and White Tail were trying to mend their relationship. PSDUF at & 14. On May 12, 1995, Morsette signed a handwritten document in North Dakota giving plaintiff guardianship of Rosie so that plaintiff could be legal guardian until Morsette Agot herself straight.@ PSDUF at & 15; White Depo. at 81-82.

[&6] In the spring of 1996, Rosie returned to North Dakota to live with Morsette and stayed there until May of 1997. PSDUF at & 16. At that time Rosie, Morsette, and Jerome Morsette moved into plaintiff=s home in Rapid City, South Dakota. PSDUF at & 17. On about August 13, 1997, Morsette and plaintiff had an argument and Morsette moved out of her mother=s home. White Depo. at 42. On that same day, plaintiff picked up Rosie from the Mother Butler Center and took her to her home. White Depo. at 42. Later that day, Morsette and Jerome Morsette came looking for Rosie at plaintiff=s home. White Depo. at 43. Morsette called the police. White Depo. at 44. The police interviewed both parties and took no action. White Depo. at 46-47. On August 15, 1999, Morsette told plaintiff that she and Jerome Morsette were moving back to North Dakota to live with Jerome=s family. White Depo. at 50.

[&7] On August 25, 1997, Morsette told Bonner about the problems she was facing in obtaining custody of her daughter. Bonner worked as the program director at the Mother Butler Center, which is a youth development program in Rapid City, South Dakota. Defendant Bonner=s Affidavit (ABonner Aff.@) at 2-3. After discussing the matter with the police, Bonner suggested to Morsette that a custody order would be necessary. Id. at 2. A copy of a custody order issued by the Three Affiliated Tribes Fort Berthold tribal court was then faxed to Bonner. PSDUF at & 21. White Depo. at 35-36. A copy of a signed written durable general power of attorney was also faxed to Bonner. Bonner Aff. at 3; PSDUF at & 20. The power of attorney granted Bonner temporary custody of Rosie until Morsette could pick up Rosie in Rapid City. PSDUF at & 20.

[&8] In attempting to enforce the power of attorney, Bonner requested the aid of the Rapid City Police Department. Id. at & 21. Vlieger, a detective sergeant in the Rapid City Police Department, was selected to accompany defendant Bonner to plaintiff=s residence. Id. at & 21. Vlieger and Bonner, acting at the request of the custodial mother, went to plaintiff=s home at approximately 10:45 a.m. on August 27, 1997. Id. Plaintiff was working at that time. Id. Vlieger and Bonner told Fawn Spotted Tail, another occupant of plaintiff=s home, that they were there to take Rosie to her mother. Plaintiff was telephoned at work, and Vlieger and Bonner discussed the custody of Rosie with plaintiff. Id. at & 22; Defendant=s Statement of Disputed and Undisputed Facts (ADSDUF@) at & 22; and Bonner Aff. at 3-4. Plaintiff insisted she had proper custody of Rosie, including documentation, and asked Vlieger and Bonner to wait before taking the child. PSDUF at & 23. Based on their interpretation of the custody order and the power of attorney, Vlieger and Bonner elected not to wait. They took Rosie to the Mother Butler Youth Development Center and eventually returned Rosie to the custody of Morsette. Bonner Aff. at 5. This lawsuit followed.

SUMMARY JUDGMENT STANDARD

[&9] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can Ashow that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law.@ In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US 574, 106 SCt 1348, 1356-57, 89 LEd2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.

[&10] In determining whether a genuine issue of material fact exists, the Court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 US 242, 106 SCt 2505, 2513, 91 LEd2d 202 (1986). The Supreme Court has instructed that A[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to >secure the just, speedy and inexpensive determination of every action.=@ Celotex Corp. v. Catrett, 477 US 317, 327, 106 SCt 2548, 2555, 91 LEd2d 265 (1986). The nonmoving party Amust do more than simply show that there is some metaphysical doubt as to the material facts,@ and A[w]here the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no >genuine issue for trial.=@ Matsushita, 106 SCt at 1356.

[&11] The trilogy of Celotex, Anderson, and Matsushita provides the Court with a methodology in analyzing motions for summary judgment. See generally 1 Steven A. Childress & Martha S. Davis, Federal Standards of Review ' 5.04 (2d ed. 1991) (discussing the standards for granting summary judgment that have emerged from Matsushita, Celotex, and Anderson).

DISCUSSION

[&12] The Eighth Circuit has had many occasions to deal with ' 1983 claims similar to those made in this matter. The arguments made by defendants in response to plaintiff=s complaint are dealt with individually, applying the aforementioned standard of summary judgment.

[&13] I. Due Process and Equal Protection Violations

[&14] Plaintiff=s complaint alleges violations both of due process and equal protection in her first cause of action against Vlieger, Bonner, and RCPD. Complaint at 5.

[&15]         A. Vlieger

[&16]                 1. Color of Law

[&17] It is undisputed that at the time of the incident Vlieger was a supervising officer in the Rapid City Police Department. PSDUF at & 1. On the morning of that day, he was tasked by his superior, Captain Chris Grant, to aid Bonner in the enforcement of the tribal child custody order and the power of attorney. Id. at & 21; Vlieger Aff. at & 2; Grant Aff. at & 5. Vlieger was chosen specifically because of his experience in law enforcement. Grant Aff. at & 6. Vlieger was sent with Bonner to ensure that the court order and power of attorney were enforced in a legal and peaceful manner. Id. at & 7. No facts alleged by plaintiff suggest Vlieger acted outside of the scope of his discretionary authority.

[&18]                 2. Qualified Immunity

[&19] Qualified immunity protects governmental officials performing discretionary functions from liability if their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 US 800, 818, 102 SCt 2727, 73 LEd2d 396 (1982). It guards against the injustice of subjecting public officials to damage liability for the good faith performance of discretionary duties they are legally obligated to undertake and the danger that the threat of such liability will deter officials from performing with the decisiveness and judgment the public good requires. Scheuer v. Rhodes, 416 US 232, 241-42, 94 SCt 1683, 40 LEd2d 90 (1974)); King v. Beavers, 148 F3d 1031, 1034 (8^th Cir. 1998). The United States Supreme Court has stated qualified immunity Agives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.@ Hunter v. Bryant, 502 US 224, 230, 112 S. Ct 534, 537, 116 LEd2d 589 (1991) (citing Malley v. Briggs, 475 US 335, 343, 106 SCt 1092, 1097, 89 LEd2d 271 (1986)). Officials should not always err on the side of caution for fear of being sued. Hunter v. Bryant, 502 US 224, 112 SCt 534, 116 LEd2d 589 (1991).

[&20] The Eighth Circuit has established a three-pronged inquiry to analyze whether defendants are protected by qualified immunity: (1) whether plaintiff has asserted a violation of a constitutional or statutory right; (2) if so, whether that right was clearly established at the time of the violation; and (3) whether, given the facts most favorable to plaintiff, there are no genuine issues of material fact as to whether a reasonable official would have known that the alleged action violated that right. See King v. Beavers, 148 F3d 1031, 1034 (8^th Cir. 1998); Liebe v. Norton, 157 F3d 574, 577 (8^th Cir. 1998); and Yowell v. Combs, 89 F3d 542, 543 (8^th Cir. 1996) (citing Foulks v. Cole County, Mo., 991 F2d 454, 456 (8^th Cir. 1993)).

[&21]                         a. Plaintiff Has Not Asserted a Violation of a Constitutional Right

[&22] The right asserted in this matter centers upon a grandmother=s purported liberty interest in retaining custody of her granddaughter. Complaint at 2-6 and Plaintiff=s Resp. Brief at 8-10. Plaintiff has not articulated an established federal right to custody of a grandchild on behalf of a grandparent presented under the facts of this case. Much of the case law suggested by plaintiff as indicative of a constitutionally protected right involves the right to visitation by the grandparent or situations in which the parent has abandoned the child, leaving the grandparent with the role as parent. See, e.g., Ellis v. Hamilton, 669 F2d 510 (7^th Cir. 1982) and Drollinger v. Milligan, 552 F2d 1220 (7^th Cir. 1977). The facts pleaded by plaintiff in this case are distinguishable. Morsette had legal custody of her child pursuant to a tribal court order. Morsette had demonstrated her custody right to both Bonner and law enforcement. Morsette was denied custody of her child by plaintiff. White Depo. at 43-50. Plaintiff had no legally recognized right to custody of the child at the time of the incident. Except for a handwritten note, dated nearly two years before the incident which appointed plaintiff guardian of Rosie, plaintiff has produced no documentation establishing herself as the proper legal custodian of Rosie. The generalized right to grandparent visitation cited by plaintiff does not clearly establish a constitutional right for purposes of qualified immunity.

[&23] No federal court has held that a grandparent has a constitutional right to custody of a grandchild which predominates over the rights of the parent, particularly when the parent has a court order awarding the parent custody.(fn1) To the contrary, courts protect the rights of the parent in situations involving custody. The United States Supreme Court has long recognized that the Acustody, care and nurture of the child reside first in the parent. . . .@ Stanley v. Illinois, 405 US 645, 651, 92 SCt 1208, 31 LEd2d 551 (1972). See also Wisconsin v. Yoder, 406 US 205, 235-36, 92 SCt 1526, 1042, 32 LEd2d 15 (1972); Meyer v. Nebraska, 262 US 390, 399, 43 SCt 625, 67 LEd 1042 (1923). The constitutional claim regarding the substantive due process right of plaintiff fails for this reason. Yowell v. Combs, 89 F3d 542, 544 (8^th Cir. 1996). Although further analysis is not necessary,(fn2) this Court will continue.

[&24]                         b. Not a Clearly Established Federal Right

[&25] To avoid a claim of qualified immunity, the right alleged must be Aclearly established,@ that is, A[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.@ King v. Beavers, 148 F3d at 1034 (quoting Anderson v. Creighton, 483 US 635, 640, 107 SCt 3034, 97 LEd2d 523 (1987)). No case law or argument has been submitted by plaintiff suggesting she had an established constitutional right to physical custody of her grandchild Rosie when such custody would have been contrary to Morsette=s parental rights. Such a right, if there is a constitutional right, was not so clearly established as to give Vlieger any understanding that his conduct could violate such a right.

[&26]                         c. Conduct Was Objectively Reasonable

[&27] Furthermore, the conduct of Vlieger was objectively reasonable. As admitted by plaintiff, Vlieger and Bonner held a copy of a tribal court order which was faxed by Morsette in a hurried effort to regain her child. In analyzing the objective reasonableness standard, much argument is made by plaintiff over the nature of the documents held by Vlieger and Bonner at the time they acted. Plaintiff asserts the conduct of Vlieger was not objectively reasonable because both the tribal custody order demonstrating Morsette=s custody of Rosie and the power of attorney enabling Bonner to obtain Rosie were Aonly@ faxed and not Aauthenticated.@ However, no evidence has been submitted by plaintiff demonstrating either of these documents to have been facially unreliable at the time defendants Vlieger and Bonner brought Rosie from plaintiff=s home.

[&28] The custody order was obtained from the tribal court for the Three Affiliated Tribes in North Dakota. The power of attorney was stamped and notarized. White Depo, Exhibit 3. Together the documents identified Morsette as Rosie=s mother and instructed the holder of the power of attorney, Bonner, to obtain the child and care for her temporarily until Morsette could travel to South Dakota and regain physical custody of Rosie. When Vlieger and Bonner went to get Rosie, Vlieger knew only these facts. Holding these documents in hand he used his own discretion. He decided to enforce the custody order and power of attorney by aiding the return of this child to her custodial parent. AThis is precisely the kind of good faith discretionary official action that qualified immunity is intended to protect.@ King v. Beavers, 148 F3d at 1036.

[&29] To survive summary judgment, a plaintiff must establish that a reasonable official would have known that his conduct violated a constitutional right. Liebe v. Norton, 157 F3d 574, 577 (8^th Cir. 1998). This entails both objective and subjective components. Id. (citing Prater v. Dahm, 89 F3d 538, 541 (8^th Cir. 1996)). The objective component examines whether a serious deprivation occurred. Liebe, 157 F3d at 577. The subjective component analyzes the state of mind of defendant and requires a defendant to act with deliberate indifference. Id.

[&30] Plaintiff submits no evidence establishing any legal right to Rosie. Additionally, any existent constitutional rights held by this grandparent in relation to Rosie were subordinate to the interests of the child=s natural and custodial mother. Vlieger aided in the return of the child to her mother. A serious deprivation of a constitutional right did not occur.

[&31] Plaintiff fails the subjective component of this analysis as well. As stated by the Court in Liebe, proving A[d]eliberate indifference >is a difficult burden for a plaintiff to meet and becomes the key issue.=@ Liebe v. Norton, 157 F3d 574, 577 (8^th Cir. 1998) (quoting Popham v. City of Talladega, 908 F2d 1561, 1563 (11^th Cir. 1990)). As a matter of law, the actions of Vlieger do not constitute deliberate indifference. The facts, seen in the light most favorable to the nonmovant plaintiff, suggest the opposite. Plaintiff admits Vlieger and Bonner went to her home, called her when she was not there, and advised her of their situation. Vlieger and Bonner attempted to give plaintiff an opportunity to explain how she had proper legal and physical custody of Rosie. Vlieger took action to enforce what appeared on its face to be a valid court order. Such action does not constitute deliberate indifference and appears to be objectively reasonable. Thus, plaintiff failed to meet her burden on all three prongs of the qualified immunity analysis and Vlieger is entitled to qualified immunity.

[&32]         B. Defendant Bonner

[&33] A claim made under 42 USC. ' 1983 against a private individual necessitates analysis of whether that private action is Aunder color of law.@ APrivate actors may incur section 1983 liability only if they are willing participants in a joint action with public servants acting under color of state law.@ Johnson v. Outboard Marine Corp., 172 F3d 531, 536 (8^th Cir. 1999) (citing Miller v. Compton, 122 F3d 531, 535 (8^th Cir. 1997)). AThe plaintiffs must establish, at the very least, an agreement or meeting of the minds between the private and state actors, and a corresponding violation of the plaintiffs= rights under the Constitution or laws of the United States.@ Johnson, 172 F3d at 536 (citing Mershon v. Beasley, 994 F2d 449, 451 (8^th Cir. 1993)).

[&34] During all relevant times, Bonner was a private citizen who was not employed by the state of South Dakota or the city of Rapid City. Bonner worked as program director for the Youth Development Program at the Mother Butler Center, which is neither a state nor a federal government entity. Bonner was not directly acting under color of law. Since plaintiff failed to establish that state actor Vlieger violated her rights under the Constitution or laws of the United States, plaintiff=s claims against the private actor Bonner must also fail. See Johnson, 172 F3d at 535.

[&35]         C.    Municipal Liability

[&36] Plaintiff also claims municipal liability under ' 1983.(fn3) Municipal liability may be established by proving plaintiff=s constitutional rights were violated by an Aaction pursuant to official municipal policy,@ or through misconduct so pervasive among non-policymaking employees of the municipality Aas to constitute a >custom or usage= with the force of law.@ Ware v. Jackson County, Missouri, 150 F3d 873, 880 (8^th Cir. 1998) (quoting Monell v. Dept. of Soc. Serv., 436 US 658, 691, 98 SCt 2018, 56 LEd2d 611 (1978)) and citing McGautha v. Jackson County, 36 F3d 53, 55-57 (8^th Cir. 1994); Jane Doe A v. Special Sch. Dist., 901 F2d 642, 646 (8^th Cir. 1990).

[&37] To hold RCPD liable under ' 1983, plaintiff must demonstrate wrongful conduct proximately caused by an unconstitutional city policy or custom that has resulted in a deprivation of a federal right. Board of County Comm=rs of Bryan County, Oklahoma v. Brown, 520 US 397, 404-05, 117 SCt 1382, 1388-1389, 137 LEd2d 626 (1997). Plaintiff must demonstrate conduct attributable to the municipality. Id. Plaintiff must also demonstrate that through RCPD=s deliberate conduct the municipality was the moving force behind the alleged injury. Id. As discussed, plaintiff has not established that a deprivation of an underlying federal right occurred, nor has plaintiff established RCPD as the moving force behind the alleged deprivation through the RCPD policy in dealing with tribal custody orders.

[&38] Plaintiff has submitted no facts suggesting misconduct arising from custom or usage by Vlieger. The events surrounding the complaint were isolated. Liability for an unconstitutional custom or usage cannot arise from a single act. McGautha v. Jackson County, Missouri Collections Dep=t, 36 F3d 53, 56 (8^th Cir. 1994) (citing Wedemeier v. City of Ballwin, 931 F2d 24, 26 (8^th Cir. 1991)). Plaintiff alleges no facts supporting the finding of an unconstitutional and widespread pattern involving custody order enforcement. There is no evidence of a violation of plaintiff=s constitutional rights based on the policy or custom of the RCPD.

[&39] II. Conspiracy

[&40] Plaintiff has also alleged a violation of her constitutional rights based on a theory of conspiracy between defendants Vlieger, RCPD, and Bonner. Recovery under such a theory is based upon ' 1985(3) and must be established through four separate elements. Plaintiff must prove: (1) the existence of a civil conspiracy; (2) that the purpose of the conspiracy was to deprive her either directly or indirectly of her civil rights; (3) that a conspirator did an act in furtherance of the object of the conspiracy; and (4) damages, shown by demonstrating either injury to person or property or the deprivation of a civil right. See Mettler v. Whitledge, 165 F3d 1197, 1206 (8^th Cir. 1999). Speculation and conjecture are not enough to prove a conspiracy exists. Id. at 1206 (citing Hinkle v. City of Clarksburg, 81 F3d 416, 421-22, (4^th Cir. 1996)).

[&41] Plaintiff submits only speculation based upon facts alleged to have occurred. There is no evidence of a mutual understanding or a meeting of the minds on the part of Vlieger and Bonner. No evidence has been offered suggesting defendants willingly agreed to enter into a conspiracy. See Helvey v. City of Maplewood, 154 F3d 841, 845 (8^th Cir. 1998). The purpose of the actions of defendants Vlieger and Bonner was to obey the power of attorney and the custody order. Furthermore, plaintiff has failed to show that plaintiff had a constitutional right that was violated. For these reasons, the claim of conspiracy against Bonner, Vlieger, and RCPD based in ' 1985(3) fails.

[&42] III. Pendent State Claims

[&43] Plaintiff has also alleged claims of intentional and negligent infliction of emotional distress. Complaint at 5-6. It is within the sound discretion of this Court to dismiss without prejudice any state-based claims when all joined federal claims are dismissed on a motion for summary judgment. ACLU v. City of Florissant, 1999 WL 615515 (8^th Cir. 1999). Such action observes the principle of comity, avoiding the needless decision of state law. Id. See also Birchem v. Knights of Columbus, 116 F3d 310, 314 (8^th Cir. 1997); Ivy v. Kimbrough, 115 F3d 550, 553 (8^th Cir. 1997) (quoting United Mine Workers v. Gibbs, 383 US 715, 726, 86 SCt 1130, 1139, 16 LEd2d 218 (1966)).

[&44] Accordingly, it is hereby

[&45] ORDERED that RCPD=s, Vlieger=s, and Bonner=s motions for summary judgment (Docket #18 and #25) based on claimed constitutional violations are granted. Judgment shall be entered in favor of Rapid City Police Department, Tom Vlieger, and Hazel Bonner.

[&46] IT IS FURTHER ORDERED that the state-based tort claims of intentional infliction of emotional distress and negligent infliction of emotional distress are remanded to state court.

Footnotes

1. The Eighth Circuit has recognized that although a parent’s custodial rights to care for and manage a child are not absolute, they are fundamental liberty interests protected by the Constitution. See, e.g., Whisman v. Rinehart, 119 F3d 1303 (8^th Cir. 1997); Zakrzewski v. Fox, 87 F3d 1011 (8^th Cir. 1996); and Thomason v. SCAN Volunteer Services, Inc., 85 F3d 1365 (8^th Cir. 1996).

2. Discussing the "clearly established federal rights" element of the qualified immunity, the Eighth Circuit Court of Appeals in King v. Beavers cited County of Sacramento v. Lewis, 523 US 833, 118 SCt 1708, 1714, 140 LEd2d 1043 n.4. (1998) as demanding a two-pronged analysis involving such claims. Such analysis would preclude this Court’s need for further development of the qualified immunity issue. In Lewis, the United States Supreme Court stated,

"[A]s we have held, the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only then that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question."

Id. (Emphasis added.)

3. Plaintiff named Rapid City Police Department as a defendant. This department is not a legal entity subject to suit and therefore the claims against it must be dismissed. In re Scott County Master Docket, 672 F. Supp. 1152 (D. Minn. 1987).

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