Evitt v. State of North Dakota

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Rw Dean Evitt, 	)
)
Plaintiff, 	) 	REPORT AND RECOMMENDATION
)
vs. 	)
)
State of North Dakota, 	) 	Case No. 1:24-cv-159
)
Defendant. 	)
On October 15, 2024, Defendant State of North Dakota filed a Motion to Dismiss for Lack
of Jurisdiction. 	(Doc. No. 8). 	Judge Traynor has referred the motion to the undersigned for
preliminary consideration. For the reasons discussed below, the undersigned recommends that the
motion be granted and the above-captioned action be dismissed.
I. 	BACKGROUND
Plaintiff is endeavoring to appeal a state criminal judgment to this court. His appeal of this
judgment to the North Dakota Supreme Court was unsuccessful as evinced by the following excerpts
from the North Dakota Supreme Court’s opinion in State v. Evitt:
[¶2] The State alleged Evitt illegally hunted ducks in violation of N.D.C.C. §
20.1-03-03 (requiring a license to hunt) and N.D.C.C. § 20.1-08-01 (making
violation of a proclamation issued by the governor a class B misdemeanor). Evitt
moved to dismiss arguing, among other grounds, the district court lacked jurisdiction
over him because he is a “State National” of his own country. The court denied his
motion, and the case proceeded to a jury trial. The jury returned guilty verdicts on
both counts. The court entered judgment, and Evitt timely appealed. The State filed
a brief that was rejected by the Clerk’s office for failure to comply with the North
Dakota Rules of Appellate Procedure. The State did not refile a corrected brief.
[¶3] Evitt argues he is a “living man,” who is “the Beneficiary and not the trustee”
and a “State National” in “his country, the Republic of North Dakota.” As such, he
asserts the district court lacked jurisdiction; the State could not serve him with any
papers; the State violated his inherent right to hunt for subsistence; he was denied his
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due process right to be tried by a jury of his peers (other “State Nationals”); there
was no victim in this case so there can be no crime; and North Dakota “is not a
constitutional state of the union.”
* * *
[¶5] Regardless of Evitt’s purported citizenship or nationality, hunting without a
license and violating a governor’s proclamation are crimes in North Dakota that the
State has authority to prosecute and the district courts have jurisdiction to redress.
Under the Constitution and laws of North Dakota, “the district courts have
jurisdiction over all criminal offenses committed within their respective judicial
districts.” State v. Lee, 2010 ND 88, ¶ 13, 782 N.W.2d 626; N.D. Const. art. VI, § 8
(providing district courts with “original jurisdiction of all causes, except as otherwise
provided by law”); N.D.C.C. § 27-05-06(1) (providing district courts with
jurisdiction "within their respective judicial districts for the redress of all wrongs
committed against the laws of this state affecting persons or property"). Ownership
and title to wildlife located in North Dakota is vested in the State. N.D.C.C. §
20.1-01-03. It is a crime to hunt wildlife in North Dakota without a license or to
violate a wildlife conservation proclamation. See N.D.C.C. §§ 20.1-03-03 and
20.1-08-01. State law enforcement officers have the authority to enforce North
Dakota's wildlife conservations laws. N.D.C.C. § 20.1-01-04. These laws apply to
Evitt as they apply to others.
* * *
[¶6] The criminal judgment is affirmed.
State v. Evitt, 2024 ND 150, ¶ 3, 10 N.W.3d 96, 97.1
Plaintiff initiated the above-captioned action with the filing of a document captioned “Notice
of Appeal” on August 23, 2024. (Doc. No. 1). He states that he “appeals . . . from the judgment
entered on February 20th 2024 from Divide County Court.” (Id.). He goes on to claim that he was
1 This court may take judicial notice of Plaintiff’s litigation history as it is relevant in determining whether he
can proceed with the above-captioned action in this district. See 28 U.S.C. § 1915(g); Jacob v. Cotton, No. 4:20CV3107,
2021 WL 130953, at *1 (D. Neb. Jan. 14, 2021) (citing Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005),
Conforti v. United States, 74 F.3d 838, 840 (8th Cir. 1996), and United States v. Jackson, 640 F.2d 614, 617 (8th Cir.
1981), for the proposition that a court can sua sponte take judicial notice of its own records and files, facts which are part
of its public records and proceedings in other courts if they relate directly to the matters at issue).
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denied due process insofar as the state district court denied his counterclaim against a North Dakota
Game and Fish Officer for denying his national right to subsistence hunt; did not “prove
Jurisdiction;” denied him a jury of his peers, “which would be other state Nationals;” and entered
a not guilty plea on his behalf after he refused to enter a plea. He requests that all of the charges
against him be dismissed.
On October 15, 2024, Defendant filed a Motion to Dismiss pursuant to Fed. R. Civ. P.
12(b)(1). (Doc. No. 8). On November 8, 2024, Plaintiff filed a response to Defendant’s motion.
(Doc. No. 10). On November 14, 2024, Defendant filed a reply. (Doc. No. 11).
II. 	STANDARD OF REVIEW
Parties may assert a lack of jurisdiction by motion under Fed. R. Civ. P. 12(b)(1). This
defense may be brought in two ways: by facial attack or by factual attack. Branson Label, Inc. v.
City of Branson, 793 F.3d 910, 914 (8th Cir. 2015). A facial attack simply asserts the plaintiff has
not plead a basis for subject matter jurisdiction. Id. In a facial attack, the court must afford the
non-moving party the benefit of the Rule 12(b)(6) safeguards, and it may only consider the pleadings
and “materials that are 'necessarily embraced by the pleadings and exhibits attached to the
complaint.'" Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016) (quoting Cox v. Mortg.
Elec. Registration Sys., Inc., 685 F.3d 663, 668 (8th Cir. 2012)). A factual attack asserts the actual
existence of subject matter jurisdiction is lacking “irrespective of the pleadings, and matters outside
the pleadings, such as testimony and affidavits, are considered.” Branson Label, 793 F.3d at 914-15
(quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)).
III. 	DISCUSSION
Defendant asserts that this court lacks jurisdiction over Plaintiff’s claim that his state
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criminal prosecution violated his constitutional rights. Specifically, it asserts that this court lacks
appellate jurisdiction over state court proceedings. See Keene Corp. v. Cass, 908 F.2d 293, 296 (8th
Cir. 1990); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923). It further assert that the Rooker-Feldman doctrine prohibits a constitutional
challenge in federal court is “inextricably intertwined with claims asserted in a state court
proceedings. See Keene Corp. v. Cass, 908 F.2d 293, 296 (8th Cir. 1990).
In his response, Plaintiff takes issue with characterization as a “sovereign citizen” by
Defendant in its motion. However, he recognizes that application of the Rooker-Feldman doctrine
is appropriate and that this matter should be dismissed, stating: “[Plaintiff] respectfully requests the
[Defendant’s] motion to dismiss be granted on the grounds that the Rooker-Feldman doctrine is very
clear on the point that a Lower Federal court cannot sit in direct review of a STATE courts prior
decision." 	(Doc. No. 10).
The Rooker-Feldman doctrine provides that, with the exception of habeas corpus petitions,
lower federal courts lack subject matter jurisdiction over challenges to state court judgments and
state court proceedings. See Mosby v. Ligon, 418 F.3d 927, 931 (8th Cir. 2005); Dodson v. Univ.
of Ark. for Med. Scis., 601 F.3d 750, 754 (8th Cir. 2010) (“The basic theory of the Rooker–Feldman
doctrine is that only the United States Supreme Court has been given jurisdiction to review a
state-court decision, so federal district courts generally lack subject-matter jurisdiction over
‘attempted appeals from a state-court judgment.” (internal quotation marks omitted)); see also Lance
v. Dennis, 546 U.S. 459, 466 (2006) (“The doctrine applies only in ‘limited circumstances,’ ... where
a party in effect seeks to take an appeal of an unfavorable state-court decision to a lower federal
court. The Rooker–Feldman doctrine does not bar actions by nonparties to the earlier state-court
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judgment simply because, for purposes of preclusion law, they could be considered in privity with
a party to the judgment.”). Specifically, the doctrine “bars federal courts from hearing cases brought
by the losing parties in state court proceedings alleging ‘injury caused by the state-court judgment
and seeking review and rejection of that judgment.’” Mosby, 418 F.3d at 931 (quoting Exxon Mobil
Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)); see also Bruce v. City & Cnty. of Denver,
57 F.4th 738, 746 (10th Cir. 2023) ( “The Rooker-Feldman doctrine recognizes a jurisdictional bar
on lower federal courts’ review of claims where (1) the plaintiff lost in state court, (2) the state court
judgment caused the plaintiff's injuries, (3) the state court rendered judgment before the plaintiff
filed the federal claim, and (4) the plaintiff is asking the district court to review and reject the state
court judgment.”). This jurisdictional bar extends to “challenges to state-court decisions ... even
if those challenges allege that the state court's action was unconstitutional.” D.C. Ct. of Appeals v.
Feldman, 460 U.S. 462, 486 (1983; see also Ballinger v. Culotta, 322 F.3d 546, 548-49 (8th Cir.
2003) (dismissing claims under the Rooker-Feldman doctrine where the relief requested in the
complaint would effectively reverse or undermine the state court decision or void its ruling and
noting that “[f]ederal district courts thus may not ‘exercis[e] jurisdiction over general constitutional
claims that are “inextricably intertwined” with specific claims already adjudicated in state court’”
(citation omitted)). Put simply, a federal district court does not possess authority in a civil rights case
to review or alter a final judgment of a state court judicial proceeding. See West v. Crnkovich, No.
8:12CV273, 2013 WL 2295461, at *3 (D. Neb. May 24, 2013); see also Keene Corp. v. Cass, 908
F.2d 293, 297 (8th Cir. 1990) (stating the Rooker-Feldman doctrine applies to Section 1983 actions
as well as claims for injunctive and declaratory relief).
The Rooker-Feldman is clearly applicable here. The document filed by Plaintiff to initiate
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this action is styled as an appeal of the state district court’s judgment. Plaintiff is challenging the
outcome of his state criminal proceedings. The relief Plaintiff seeks is a reversal of the state court’s
judgment. This court lacks jurisdiction to review that judgment. Acknowledging this, Plaintiff
ostensibly joins in Defendant’s motion.
IV. 	CONCLUSION AND RECOMMENDATION
The undersigned RECOMMENDS that the court GRANT Defendant’s motion (Doc. No.
8) and DISMISS this action for lack of jurisdiction.
NOTICE OF RIGHT TO FILE OBJECTIONS
Pursuant to D.N.D. Civil L.R. 72.1(D)(3), any party may object to this recommendation
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Failure to file appropriate objections may result in the recommended action being taken without
further notice or opportunity to respond.
IT IS SO ORDERED.
Dated this 11th day of December, 2024.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United State District Court
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