SUSAN BASCHE,
individually and as guardian ad litem for her minor daughter, L. B.,
Plaintiff,
v.
BRUCE FRIESTH
and the Sheriff’s Department of Minnehaha County,
Defendants.
[2000 DSD 5]

United States District Court
District of South Dakota—Southern Division
Civ. 99-4018

MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT MINNEHAHA COUNTY SHERIFF DEPARTMENT’S
MOTION FOR SUMMARY JUDGMENT

Mark Meierhenry, Robin Houwman
Danforth, Meierhenry & Meierhenry, Sioux Falls, SD
Attorneys for Plaintiff attorney

Steven Binger, Binger Law Office, Sioux Falls, SD
Attorney for Defendant Friesth

Timothy Shattuck, Woods, Fuller, Shultz & Smith, Sioux Falls, SD
Attorney for Defendant Minnehaha Co. Sheriff’s Office

Dated Jan 14, 2000

[¶1] Pursuant to 42 USC § 1983, Susan Basche brings this action on her own behalf and as guardian ad litem for her minor daughter, L.B., against Bruce Friesth and the Minnehaha County Sheriff’s Department alleging that Friesth committed sexual assault and acts of sodomy against L. B. and as a result, each of the defendants violated L.B.’s constitutional rights. The Sheriff’s Department moved for judgment on the pleadings under Rule 12(c) of Federal Rules of Civil Procedure, and for summary judgment pursuant to Rule 56(c). Basche contends that questions of fact preclude the grant of summary judgment. The Court has jurisdiction pursuant to 28 USC §1331. The facts of the case, resolving all genuine factual disputes and drawing all reasonable inferences in favor of Basche, are as follows:

[¶2] In the early morning hours of August 24, 1997, seventeen-year-old L.B. had an argument with her mother, Susan Basche. Basche struck L.B. and told her to leave the house. L.B. began walking to a friend’s house, encountering Deputy Sheriff Friesth on the front porch of his house. Friesth, wearing shorts and a t-shirt, was sitting on a bench drinking beer. He told L.B. to come up there. L.B. stopped because she knew Friesth was a policeman, and she thought she could trust him. Friesth asked L.B. what she was doing out so late. L.B. told him about the fight with her mother and that she was kicked out of the house. Although Friesth told L.B. that he just got off-duty, Friesth interrogated L.B. about her alcohol use, marijuana use and possession, sexual activity, and her mother’s potential child abuse. After repeated questioning, L.B. admitted she had marijuana in her purse.

[¶3] While still on the porch, Friesth asked L.B. to move to the garage where there was better lighting so he could see if L.B. had bruises on her back as a result of her mother’s blows. In the garage, Friesth lifted L.B.’s shirt and inappropriately touched her. L.B. did not leave the garage at that time because she had marijuana in her purse, because Friesth was a cop, and because he promised to give her a ride to her friend’s home. They sat down on some chairs and Friesth gave L.B. a cigarette. Friesth asked L.B. more questions about sex and marijuana and told her that he would not call law enforcement to tell them she had marijuana in her purse. Friesth told L.B. that she should take off her sweatshirt and he helped her take it off. After Friesth went to the basement for another beer, he asked to see L.B.’s breasts. Although L.B. said "No," Friesth lifted her shirt, unhooked her bra, and touched her breasts. He placed L.B. on his lap, patted her vaginal area through her clothing and asked to see it. When L.B. said, "No," Friesth asked again and continued to touch her through her clothing. When L.B. said "No" again, Friesth said, "Come on, I am not going to tell anyone that you have weed in your purse, am I?" Even though L.B. told him again she did not want him touching her, Friesth began to unbutton her pants. When she said "No" again, Friesth pulled L.B.’s head forward by her neck. Friesth lowered L.B.’s underwear, touched her vagina sexually, and inserted two fingers. With his hand on her neck, Friesth physically forced L.B. to perform oral sex upon him. Friesth then gave L.B. another cigarette, threatening that she better keep his secret and he would keep hers. L.B. understood "her secret" to mean the marijuana in her purse.

[¶4] Following the oral rape, sexual assault, and sodomy, L.B. became very depressed. She quit work, changed schools, and eventually quit school because of the embarrassment and depression caused by this assault. L.B. underwent some counseling and ultimately attempted suicide in November 1997.

[¶5] The Sheriff’s Department filed a Motion for Summary Judgment alleging that plaintiff has not sued a proper party and that she has no viable claim against Minnehaha County under § 1983.

[¶6] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if it can show that "there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." Lambert v. City of Dumas, 187 F3d 931, 934 (8th Cir. 1999). In determining whether summary judgment should issue, the Court must view the evidence and inferences reasonably drawn therefrom "in the light most favorable to the nonmoving party." Lambert v. City of Dumas, 187 F3d 931, 934 (8th Cir. 1999) (citing Enterprise Bank v. Magna Bank, 92 F3d 743, 747 (8th Cir. 1996); Adkison v. G.D. Searle & Co., 971 F2d 132, 134 (8th Cir. 1992)). The burden is on the moving party to establish the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Enterprise Bank v. Magna Bank, 92 F3d 743, 747 (8th Cir. 1996); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US 574, 106 SCt 1348, 1356-57, 89 LEd2d 538 (1986). "As to materiality ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 US 242, 248, 106 SCt 2505, 2510, 91 LEd2d. 202 (1986). Once this burden has been met, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts that create a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 US 242, 256, 106 SCt 2505, 2514, 91 LEd2d 202 (1986).

[¶7] 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, 255, 106 SCt 2505, 2513, 91 LEd2d 202 (1986). "Summary 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).

[¶8] "Summary judgment is to be granted only where the evidence is such that no reasonable jury could return a verdict for the nonmoving party." Lambert v. City of Dumas, 187 F3d 931, 934 (8th Cir. 1999) (citing Anderson v. Liberty Lobby, Inc., 477 US 242, 250, 106 SCt 2505, 2511, 91 LEd2d 202 (1986)). To survive summary judgment there must be evidence that "reasonably tends to prove" Basche’s theory. Eastman Kodak v. Image Technical Services, Inc., 504 US 451, 468 n.14, 112 SCt 2072, 2083 n.14, 119 LEd2d 265 (1992) (quoting Anderson v. Liberty Lobby, Inc., 477 US 242, 248, 106 SCt 2505, 2510 (1986)). The Sheriff’s Department meets the burden under Fed. R. Civ. P. 56(c) when it is conclusively shown that the facts upon which Basche relied to support the allegations are not susceptible of the interpretation which she sought to give them and only reasonable inferences can be drawn from the evidence in favor of Basche. Id. (Citations omitted).

[¶9] A. Proper Party

[¶10] The Sheriff’s Department asserts that the amended complaint should be dismissed because the Sheriff’s Department is not a proper party. In support of its contention, the Sheriff’s Department cites cases in which sheriffs’ departments lack the capacity to be sued under the laws of Alabama, Texas, and Illinois. Basche contends that the amended complaint particularly identifies Minnehaha County as a defendant in this action and more specifically, identifies the officer and the department at which the action is directed. In addition, Basche argues that since the action has been pending since November 13, 1997, the Sheriff’s Department should now be estopped from asserting this contention.

[¶11] The capacity to sue or be sued shall be determined "by the law of the state in which the district court is held ... ." Fed. R. Civ. P. 17(b). Neither party cites a statute or case indicating that under South Dakota law the Sheriff’s Department of Minnehaha County is or is not a proper entity to be sued. Although South Dakota statute indicates that "[e]ach county is a body corporate for civil and political purposes only, and as such may sue and be sued ... ," no statute dictates that a sheriff’s department may not be sued. SDCL 7-18-1. The Sheriff’s Department claims that a sheriff is only an officer of a county, same as the county auditor and the county treasurer, and cannot be sued. Historically, however, in South Dakota, suits have been allowed against a county auditor, including lawsuits initiated by commissioners of the same county. See Forsting v. Hoilien, 274 NW 654 (SD 1937) (County commissioners sued the county auditor); Ballinger v. McLaughlin, 116 NW 70 (SD 1908) (County auditor sued); Putman v. Custer County, 127 NW 641 (SD 1910) (Register of Deeds sued the county); Brookings County v. Murphy, 121 NW 793 (SD 1909) (County sued the county auditor); Howells v. Metcalf, 100 NW 923 (SD 1904); Tripp County v. State, 264 NW2d 213 (SD 1978) (County sued the state and the county auditor).

[¶12] In addition, if the state legislature desired only counties to be sued instead of county officials, it has the power to create specific statutes to do so. For instance, the legislature has created statutes indicating the process by which the state of South Dakota can be sued, and it could have created similar statutes stating specifically that counties may be sued and county officials may not be sued. See SDCL chapter 21-32.

[¶13] State law also defines "public entities" for which the South Dakota public entity pool for liability was established, including liability for § 1983 claims not avoidable under the tenth or eleventh amendment. SDCL 3-21-1. Public entities are defined as "the state of South Dakota, all of its branches and agencies, boards and commissions," including "all public entities established by law exercising any part of the sovereign power of the state, including, but not limited to municipalities, counties, school districts, townships, sewer and irrigation districts and all other legal entities that public entities are authorized by law to establish." Id. The Court finds that sheriff departments are included in the term "other legal entities that public entities are authorized by law to establish."

[¶14] Furthermore, Basche claims that Minnehaha County was put on notice in November of 1997 pursuant to South Dakota law. In addition, the Court notes that in Count II, paragraph thirty-three of the complaint, Basche alleges that "Minnehaha County and the Minnehaha County Sheriff’s Department is [sic] responsible for the acts of officers of the Sheriff’s Department while in the performance of their duties... ." However inartfully drafted, the caption of the complaint names Minnehaha County. The Court finds that Minnehaha County has had notice of the complaint against it and the complaint will not be dismissed for failure to sue a proper party.

[¶15] B. § 1983 Claim

[¶16] To state a claim under § 1983, Basche "must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Roe v. Humke, 128 F3d 1213, 1215 (8th Cir. 1997) (quoting West v. Atkins, 487 US 42, 48, 108 SCt 2250, 2254-55, 101 LEd2d 40 (1988)). "[M]unicipalities and other local governmental bodies are ‘persons’ within the meaning of § 1983." Board of County Comm'rs of Bryan County v. Brown, 520 US 397, 403, 117 SCt 1382, 1387, 137 LEd2d 626 (1997). However, the Sheriff’s Department cannot be held liable pursuant to § 1983 under a theory of respondeat superior "solely because it employs a tortfeasor." Id.

[¶17] The first essential element under § 1983 that Basche must allege is the violation of a right secured by the Constitution and laws of the United States. West v. Atkins, 487 US 42, 48, 108 SCt 2250, 2254-55, 101 LEd2d 40 (1988). Basche has set out facts which include oral rape, sodomy, and sexual assault. Among the specific freedoms protected by the Bill of Rights, "the ‘liberty’ specially protected by Due Process Clause includes ... the right[] to bodily integrity." Washington v. Glucksburg, 521 US 702, 720, 117 SCt 2258, 2267, 138 LEd2d 772 (1997) (citing Rochin v. California, 342 US 165, 72 SCt 205, 96 L. Ed. 183 (1952)). The substantive due process liberty interest in bodily integrity includes the right to be free from a sexual assault by a state actor. See Haberthur v. City of Raymore, 119 F3d 720, 723 (8th Cir. 1997); see also Harris v. City of Pagedale, 821 F2d 499, 508 (8th Cir. 1987) (city liable under § 1983 when police officer sexually fondled and raped a woman). In addition, "courts of appeal have recognized that the right to bodily integrity may be violated by sexual fondling and touching or other egregious sexual contact." Id. Therefore, the Court finds that Basche has alleged the violation of a right secured by the Constitution and laws of the United States.

[¶18] The second essential element under § 1983 that Basche must show is that the alleged deprivation was committed by a person acting under color of state law. West, 487 US at 48. "The traditional definition of acting under color of state law requires that the defendant in a §1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’" Roe v. Humke, 128 F3d 1213 (8th Cir. 1997) (quoting United States v. Classic, 313 US 299, 326, 61 SCt 1031, 1043, 85 L. Ed. 1368 (1941)). A defendant in a § 1983 suit "acts under color of state law when he abuses the position given to him by the State," acting either "in his official capacity or while exercising his responsibilities pursuant to state law." Id. The Eighth Circuit Court of Appeals has explained that "[t]he injury complained of must have been caused by the exercise of some right or privilege created by the state, by a rule of conduct imposed by the state, or by a person for whom the state is responsible." Roe v. Humke, 128 F3d 1213 (8th Cir. 1997) (quoting Parker v. Boyer, 93 F3d 445, 448 (8th Cir. 1996) in turn citing Lugar v. Edmondson Oil Co., 457 US 922, 937, 102 SCt 2744, 2753-54, 73 LEd2d (1982)).

[¶19] Basche claims that Friesth acted under color of law and under his authority or apparent authority as a Deputy Sheriff of Minnehaha County at all times during the early morning of August 24, 1999. She claims that when L.B. came upon his residence, Friesth acted under color of law because he performed many functions off duty that morning that he would have performed if he were on duty. Viewing the evidence in the light most favorable to Basche, L.B. stopped that night because Friesth was a law enforcement officer and she thought she could trust him. Friesth detained L.B., interrogated her about being out so late, interrogated her about being physically abused by her mother, interrogated her about her use and possession of marijuana, and directed her to the garage to enable him to more clearly see her back, purporting to investigate for physical evidence of the child abuse. Basche claims that it was Friesth’s use of his authority and position as a law enforcement officer that enabled him to detain L.B. and coerce her to stay while he sexually assaulted, sodomized, and orally raped her.

[¶20] Officers acting "in the ambit of their personal pursuits are plainly excluded" from acting under "color" of law. Roe v. Humke, 128 F3d 1213, 1215 (8th Cir. 1997). However, "officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it." Roe v. Humke, 128 F3d 1213, 1215 (8th Cir. 1997) (quoting Screws v. United States, 325 US 91, 111, 65 SCt 1031, 1040, 89 L. Ed. 1495 (1945)). Hence, "[w]hether a police officer is acting under color of state law [or under the pretense of law] turns on the nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties." Roe v. Humke, 128 F3d 1213, 1215 (8th Cir. 1997) (quoting Martinez v. Colon, 54 F3d 980, 986 (1st Cir.), cert. denied, 516 US 987, 116 SCt 515, 133 LEd2d 423 (1995)).

[¶21] In Roe, the court noted that off-duty officers act "under color of law" if they purport to exercise official authority. For pretense to exist, the officer’s conduct must be related in some meaningful way either to the officer’s governmental status or the performance of his duties. Parrilla-Burgos v. Hernandez-Rivera, 108 F3d 445, 449 (1st Cir. 1997) (citing Martinez v. Colon, 54 F3d 980, 986 (1st Cir.), cert. denied, 516 US 987, 116 SCt 515, 133 LEd2d 423 (1995)). The court found in Roe that the officer had been motivated by personal concerns because the officer did not pretend to engage in acts required of him as part of his official duties as a police officer, did not invoke his status as a police officer, and did not threaten to use his official authority in the future. That officer befriended a young girl, convinced her parents that she was safe with him, and while off duty took her to his farm where he hugged, kissed, and fondled her as they rode an all-terrain vehicle. The district court found that nothing in the record suggested that his actions were related in a "meaningful way to either his governmental status or to the performance of his duties," and he was not acting under color of law. The district court’s decision was affirmed on appeal.

[¶22] In this case, Basche alleges that while interrogating L.B. about being out late, her use and possession of marijuana, and her mother’s possible child abuse, Friesth was performing the same functions he would have performed if he were on duty. When the facts are viewed in the light most favor to Basche, a reasonable jury could find that Friesth was acting under color of state law.

[¶23] A local government, however, cannot be held liable under § 1983 on the theory of respondeat superior. Bryan County, 520 US at 403. Even if a plaintiff has suffered a deprivation of federal rights at the hands of a county employee, that alone will not permit an inference of county culpability and causation; "the plaintiff will simply have shown that the employee acted culpably." Id. at 389. To hold a local governmental body liable pursuant to §1983, a plaintiff must identify a municipal "policy" or "custom" that caused plaintiff’s injury and "rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee." Id. at 405. "‘Official policy’ often refers to formal rules or understandings ... that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time." Pembaur v. Cincinnati, 475 US 469, 480, 106 SCt 1292, 1299 (1986). In addition, "[o]fficial policy involves ‘a deliberate choice to follow a course of action ... made from among various alternatives’ by an official who [is determined by state law to have] the final authority to establish governmental policy." Ware v. Jackson County, 150 F3d 873 (8th Cir. 1998) (quoting Jane Doe "A" v. Special Sch. Dist., 901 F2d 642, 645 (8th Cir. 1990)). "Although [county] liability for violating constitutional rights may arise from a single act of a policy maker, that act must come from one in an authoritative policy making position and represent the official policy of the [county]." Springdale Educ. Assoc. v. Springdale Sch. Dist., 133 F3d 649, 652 (8th Cir. 1997).

[¶24] Basche argues that Friesth was the final policy and decision maker with respect to L.B. on August 24, 1997. Whether a person is an authorized policymaker for purposes of assigning municipal liability is a question of state law. Springdale Educ. Assoc. v. Springdale Sch. Dist., 133 F3d 649, 652 (8th Cir. 1997) (citing Jett. v. Dallas Indep. Sch. Dist., 491 US 701, 737, 109 SCt 2702, 2723, 105 LEd2d (1989); Jane Doe "A" v. Special Sch. Dist. of St. Louis County, 901 F2d 642, 645 (8th Cir. 1990)). Under South Dakota law, the sheriff is the final decision maker for the Sheriff’s Department. SDCL 7-12-1. Therefore, the Court finds Basche’s argument that Friesth was the final policy and decision maker on August 24, 1997, to be without merit.

[¶25] Alternatively, Basche may establish county liability by proving L.B.’s rights were violated by "misconduct so pervasive among non-policymaking employees of the [county] ‘as to constitute a ‘custom or usage’ with the force of law.’" Ware v. Jackson County, 150 F3d 873, 880 (8thCir. 1998) (quoting Monell v. Dep’t of Soc. Serv., 436 US 658, 691, 98 SCt 2018, 56 LEd2d 611 (1978)). "Custom or usage" arises when there is a "continuing, widespread, persistent pattern of unconstitutional misconduct" by county employees to which the county was deliberately indifferent or of which the county was notified and tacitly authorized. Ware v. Jackson County, 150 F3d 873, 880 (8th Cir. 1998). In addition, the custom must have been "the moving force behind the constitutional violation" which resulted in L.B.’s injuries. Id. Basche presents no evidence indicating that L.B.’s injuries were a consequence of a custom or usage of the Sheriff’s Department or Minnehaha County.

[¶26] In the amended complaint, Basche claims that the Sheriff’s Department had a duty to properly train officers and to select officers of high moral character, and that it negligently performed these duties, resulting in a deprivation of L.B.’s rights. It has been held that "an ‘inadequate training’ claim could be the basis for § 1983 liability in ‘limited circumstances.’" Board of County Comm’rs of Bryan County v. Brown, 520 US 397, 403, 117 SCt 1382, 1387, 137 LEd2d 626 (1997) (quoting Canton v. Harris, 489 US 378, 387, 109 SCt 1197, 1205, 103 LEd2d 412 (1989)). "If a training program does not prevent constitutional violations, municipal decision makers may eventually be put on notice that a new program is called for." Id. at 407. Adherence to a program "that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action – the ‘deliberate indifference’ – necessary to trigger municipal liability." Id. at 407. However, ‘[w]here a claim of municipal liability rests on a single decision, not itself representing a violation of federal law and not directing such a violation, the danger that a municipality will be held liable without fault is high." Id. at 408.

The Supreme Court has "hypothesized" that under narrow circumstances "a violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations." Id. at 409. A claim might meet this exception if two conditions are met: (1) there must be a "likelihood that the situation will recur," and (2) there must be a "predictability that an officer lacking specific tools to handle that situation will violate citizens’ rights." Id.

[¶27] Basche has presented no evidence of a similar pattern of injuries caused by the Minnehaha County Sheriff's Department linked to inadequate training of the deputies. There is no evidence in the record that other deputy sheriffs have ever been accused of sexual misconduct toward a female minor. Furthermore, Basche has not presented evidence to show that there is a likelihood that the situation will recur or that it is predictable that based on the duties assigned to Basche that more or different training would have prevented the sexual assault under these circumstances. The need for more or different training was not so obvious that the policy makers of the county can said to have been deliberately indifferent to the need. Plaintiff does not have sufficient evidence to show that her injury was caused by the county's action, rather than simply the act of an employee.

[¶28] Basche also claims that the Sheriff's Department improperly screened and hired Friesth. To hold a local government liable under § 1983, a plaintiff must demonstrate that a municipal decision reflects deliberate indifference to the risk that a violation of a particular constitutional or statutory right will follow the decision. Id. at 411. "Only where adequate scrutiny of an applicant's background could lead a reasonable policymaker to conclude that the plainly obvious consequences of the decision to hire the applicant would be the deprivation of a third party's federally protected right can the official's failure to adequately scrutinize the applicant's background constitute ‘deliberate indifference.’" Id.

[¶29] Friesth was convicted on one count of misdemeanor injury to property twelve years prior to being hired by the Minnehaha County Sheriff's Department. A charge of simple assault was dismissed nine years prior to his hiring. There is no link between this minimal criminal history background and the risk that if hired, Friesth would sexually assault a female juvenile. To find the county liable "there must be a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff." Id. at 412. Plaintiff's showing on this issue is inadequate to constitute "deliberate indifference" to plaintiff’s due process liability interest in bodily integrity.

[¶30] It is hereby

[¶31] ORDERED that the Sheriff Department of Minnehaha County’s motion for summary judgment (Docket 14) is granted.

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