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). Plaintiffhas 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, 51DIV 18-41, 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).

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 of the

Seventh Judicial District, Rapid City, SD, 51DIV 18-41. The case was assigned to

Judge Connolly who granted the divorce on the grounds of extreme cruelty, and

made determinations concerning child custody and support, property division, attorneys’ fees, and costs. Evens v. Evens,

, 274-75 (S.D. 2020). He also issued an Order holding Plaintiff in contempt of court. Jd. 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 of the divorce proceeding was

dismissed for lack of personal jurisdiction. Evens v. Connolly,

, *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,

, *2 (D. MT. 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,

, *4 (D.S.D. 2022). In the case before this Court, Plaintiff alleges Defendants have failed “to

uphold their sworn duties of their 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 of jurisdiction. (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 of judicial immunity, judicial discrimination against her as a pro se litigant, lack of jurisdiction 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

to SIDIV 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,

,

and

. 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 of 42 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 Plaintiff's 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 in Ashcroft v. Iqbal,

(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,

(2007)). See

Spagna v. Phi Kappa Psi, Inc.,

(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 of St. Louis,

,

744 (8th Cir. 2022) (quoting Jgbal 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,

(8th Cir. 2004) (cleaned up). The

court is not required to “construct a legal theory” for a plaintiff.

As the Iqbal Court noted, “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

(quoting Twombly,

). See also Marglon v. City of Sioux Falls Police Dept.,

, *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.

. 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 Plaintiff's complaint meets the standard of Twombly and Iqbal, the nature of her allegations against these Defendants prompts the Court to resolve them.

B.

claim—Judicial Immunity Plaintiff has relied upon

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” of the United States.

. To state a claim under § 1983, a plaintiff must establish: (1) the violation of

a right secured by the Constitution or laws of the United States and (2) the alleged deprivation of that right was committed by a person acting under color of state law.

West v. Atkins,

(1988). Furthermore, the Supreme Court has reinforced that § 1983 “merely provides a method for vindicating federal rights elsewhere conferred.” Albright v. Oliver,

(1994) (citing Baker v.

McCollan,

(1979)). See also Marglon,

, *3, The nature of this lawsuit has prompted both Plaintiff and Defendants to

invoke the doctrine of judicial immunity. Absolute judicial immunity from

lawsuits brought pursuant to

has long been recognized. Mireles

v. Waco,

(1991) (citing authority); Robinson v. Freeze,

(8th Cir. 1994) (“Judges performing judicial functions enjoy absolute immunity from §1983 liability”). See also Hamilton v. City of Hayti, Missouri,

(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.,

(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

consequences to himself.”

. Judges are protected when they act in their “judicial capacity,” which is gauged by “the nature of the act itself, 7.¢., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.” Mireles,

(quoting Stump v. Sparkman,

(1978)). See also Pierson v. Ray,

(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,

(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.

, *2 (D.S.D. 2019). The plaintiff alleged the judge had no jurisdiction over him and that probable cause had not been established. Jd., *8. 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. Jd. 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 if the complaining party is dealing with the judge in his judicial capacity.”

*8 (quoting Birch v. Mazander,

(8th Cir. 1982)). Because the magistrate was exercising jurisdiction in the case, and was

performing a judicial function, she had absolute judicial immunity and the claim

was properly dismissed. Jd., *9. Similarly, in Meyer v. Pfeifle, a litigant dissatisfied with the outcomes of two criminal cases and a divorce action sued the three South Dakota Circuit Court judges who had presided over the actions.

(D.S.D. 2019). Plaintiff alleged violations of her civil rights and other claims. Jd.,*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 of the plaintiff's claims. Id. Pertinent to this case and the question of the South Dakota Supreme Court’s jurisdiction, the Constitution of the 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.” §.D. CONST. art. V, § 5. The South Dakota Legislature has provided general rules pertaining to the Supreme Court at $.D.C.L. Ch. 16-1 and 16-3. In the

case at bar, the Justices of the South Dakota Supreme Court addressed the case of Evens v. Evens on appeal from the Circuit Court of the Seventh Judicial District and issued an opinion deciding the issues raised.

-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

y. 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 of the 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 of the

divorce case of Evens v. Evens, they were performing a judicial function in their judicial capacities, as set forth in the Constitution of the State of South Dakota. Plaintiff's Issue II alleges discrimination against Plaintiff as a pro se litigant, specifically alleging the Justices have a conflict of interest, lack impartiality, and ignored fraud upon the court. (Id.). These claims are not supported by a legal theory cognizable under

. Furthermore, it appears Plaintiff bases

her claim of conflict of interest and lack of impartiality 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). Plaintiff then 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

. 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 of the divorce on the grounds of extreme cruelty. Plaintiff's effort to sue the Justices for damages on this basis fails once

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again based on the grounds of judicial immunity. Furthermore, this is not a claim cognizable under

. In sum, Plaintiff seeks money damages from the Justices of the 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 Plaintiff's claims against them. For this reason, Defendants’ motion to dismiss (Doc. 6) is granted and

Plaintiff's claims are dismissed in their entirety.

C. Abstention

In accordance with Younger v. Harris,

(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,

(8th Cir. 2012) (citing Plouffe v.

Ligon,

(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,

(8th Cir. 2018) (quoting Moore v. Sims,

(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 of the dispute dictated that the federal courts refrain from deciding the issues raised. Jd. 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,

, *3; Lewis v. Seventh Circuit Court-South Dakota Unified Judicial System,

, *2 (D.S.D. 2018); Carlson v. County of Ramsey, Minnesota,

, *6 (D. Minn. 2016). This is so because of the 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

and 242 in conspiring to and depriving her of various rights. Courts repeatedly have held that there is no private right of action under

. Federal authorities have the task of determining whether to pursue criminal charges. United States v. Wadena,

(8th Cir. 1998) (cleaned up); Cok v. Cosentino,

(1st Cir. 1989) (no private right of action under

and 242 against judge sued by litigant in divorce action). See also Mousseaux v. United States Comm’r of Indian Affairs,

(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 13

Court Justices have judicial immunity, and therefore dismisses Plaintiffs claims for money damages in their entirety. In addition, to the extent Plaintiffs 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 xi day of September, 2022.

BY THE COURT:

~ (\Geertene isa

Lawrence L. Piersol United States District Judge ATTEST: MATTHEW W. THELEN, CLERK Mall Le

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