Bergeson v. State of South Dakota et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
NEIL DENNIS BERGESON,JR., 1:21-CV-01026-CBK
Plaintiff,
vs. MEMORANDUM OPINION AND
ORDER
JUDGE CULLEN MCNEECE,and JADEN
CARLSON,
Defendants.
Plaintifffiled this action against defendants who are involved in the prosecution of
state court charges against plaintifffor driving under the influence and unauthorized
ingestion of a controlled substance in South Dakota Circuit Court, Fifth Judicial Circuit,
Roberts County, 54CRI21-000323. Plaintiff claims the defendants violated the
Administrative Procedures Act, 5 U.S.C. § 551 et seq., the Tucker Act, 28 U.S.C.
§§ 1346, 1491, and the Foreign Agent Registration Act, 22 U.S.C. § 611, et seq. I have
already ruled that such claims are "do not venture close to being grounded in fact or
merit," and are "legal nonsense." Bergeson v. State of South Dakota, et al.. No. 1:21-
CV-01026-CBK, 2021 WL 5771183, at 1, 3(D.S.D. Dec. 6, 2021). Claims against five
defendants have been dismissed in prior orders.
Plaintiffs claim against defendant Jaden Carlson is that Carlson, who is alleged to
be a Sisseton-Wahpeton Sioux Tribe police officer, unlawfully detained plaintiff after
plaintiff identified himself as a non-tribal member. Plaintiff contends that "[w]hen the
Tribal Police make a stop and are alerted that the occupant is not a tribal member they are
to stand down, not call Roberts County Sheriffs department(sic)to come out to issue an
illegal citation while illegally arresting the non tribal (sic) member." Plaintiff contends
that defendant Carlson and defendant Zac Angerhofer, a Roberts County deputy sheriff.
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engaged in a "RICO SCAM"along with the prosecutor,that Carlson and Angerhofer
conspired to illegally arrest plaintiff and thereby committed treason, kidnapping, assault,
and unlawful arrest and that they acted under color of state law. He seeks prosecution of
defendant Carlson and defendant Angerhofer. Plaintiff has filed a motion for a default
judgment against defendant Carlson, ostensibly under Fed. R. Civ. P. 56(C)(2)(3)(4).
There are many reasons why plaintiffs motion for a defaultjudgment should be
denied. First, defaults and defaultjudgments are governed by Fed. R. Civ. P. 55. Rule
56 governs summaiy judgment procedure.
Second, prior to seeking a defaultjudgment, a plaintiff must first seek the entry of
a default under Fed. R. Civ. P. 55(a). Plaintiff failed to do so.
Third, a defaultjudgment is not appropriate on the record in this case. "The
Federal Rules of Civil Procedure commit the entry of a defaultjudgment against a party
to the sound discretion ofthe trial court." Belcourt Pub. Sch. Dist. v. Davis. 786 F.3d
653, 661 (8th Cir. 2015),(citins F.T.C. v. Packers Brand Meats,Inc.. 562 F.2d 9, 10(8th
Cir. 1977)). The United States Court of Appeals for the Eighth Circuit "has recognized
that defaultjudgments are 'not favored by the law and should be a rare judicial act.'"
Belcourt Pub. Sch. Dist. v. Davis. 786 F.3d at 661,(quotins In re Jones Truck Lines. Inc..
63 F.3d 685,688(8th Cir. 1995)). The Eighth Circuit has long held that there is a
"judicial preference for adjudication on the merits." Belcourt Pub. Sch. Dist. v. Davis.
supra,(citins Johnson v. Davton Elec. Mfg. Co.. 140 F.3d 781, 784(8th Cir. 1998)).
The Eighth Circuit, in Belcourt, set forth "various factors courts may consider
when determining whether to enter a default judgment." Id.
The amount of money potentially involved; whether material issues offact
or issues of substantial public importance are at issue; whether the default is
largely technical; whether plaintiff has been substantially prejudiced by the
delay involved; and whether the grounds for default are clearly established
or are in doubt. Furthermore, the court may consider how harsh an effect a
defaultjudgment might have; or whether the default was caused by a good-
faith mistake or by excusable or inexcusable neglect on the part ofthe
defendant.
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Belcourt Pub. Sch. Dist. v. Davis. 786 F.3d at 661. It is unnecessary to eonsider the
foregoing beeause plaintiffs allegations against defendant Carlson fail to state a claim.
As set forth above and in my previous opinion in this ease, plaintiffs claims that
defendant Carlson violated the Administrative Procedures Act, the Tucker Aet, and the
Foreign Agent Registration Aet have no legal merit and are nonsense. Plaintiff further
claims that Officer Carlson's activities deprived plaintiffs rights under 18 U.S.C. 241
(the crime of conspiracy), 18 U.S.C. § 242(criminal violation of civil rights), and 28
U.S.C. § 1545 (the crime of safe eonduct or passport violation). Plaintiff has no civil
cause of aetion under any ofthese criminal statutes. This Court does not file charges or
proseeute civil defendants.
It is generally settled law that "a defaultjudgment cannot stand on a complaint that
fails to state a claim." Chudasama v. Mazda Motor Com., 123 F.3d 1353, 1371 n. 41
(11th Cir. 1997) faYmgNishimatsu Constr. Co. v. Houston Nafl Bank, 515 F.2d 1200,
1206 (5th Cir. 1975){citing in turn Thomson v. Wooster, 114 U.S. 104, 113, 5 S.Ct. 788,
29 L.Ed. 105 (1885))). "A district court may not enter defaultjudgment based on a
complaint not well-pleaded." Sampson v. Lambert 903 F.3d 798, 806 (8th Cir. 2018).
See also, Alan Neuman Prods.. Ine. v. Albright 862 F.2d 1388, 1392(9th Cir. 1988)
("claims which are not well-pleaded, are not binding and cannot support the judgment")
c/YmgNishimatsu Construction Co. v. Houston National Bank, 515 F.2d 1200 (5th
Cir.1975)). Even if a party is alleged to be in default, "it remains for the court to consider
whether the unchallenged facts constitute a legitimate cause of aetion, since a party in
default does not admit conelusions of law." § 2688.1 Court's Entry of a Default
Judgment—^Effect of Default on ProofRequirements, lOA Fed. Prac. & Proe. Civ.
§ 2688.1 (4th ed.).
Plaintiff has failed to state a claim against defendant Carlson. The fact alleged,
that officer Carlson stopped plaintiff and detained him, does not state a elaim under any
statute asserted by plaintiff. Any elaim that such act violates federal law is merely
conclusory. "Threadbare recitals ofthe elements of a eause of action, supported by mere
conclusory statements" do not suffice to set forth a eause of action. Ashcroft v. Iqbal,
3
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556 U.S. 662,678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868(2009). The United States
Supreme Court has rejeeted the claim that tribal police officers cannot search and detain a
non-member who is suspected of violating federal or state laws "to which those non-
Indians are indisputably subject." United States v. Cooley. U.S. , , 141 S. Ct.
1638, 1644^5,210 L. Ed. 2d 1 (2021).
Fourth, the return of service filed in this case shows that the Roberts County
Sheriff served a "Civil Action" upon a person whose name is Jaiden Arden Mikeal
Carlson at Sisseton, South Dakota. There is no mention whether the summons and
complaint were both served as required by Fed. R. Civ. P. 4(c)(1). The defendant sued
Jaden Carlson,^ who is alleged to be a tribal police officer. While the difference in
spelling ofthe defendant's name is not significant, this Court would not enter a judgment
of any kind without some evidence that the correct person was served. Further, many
tribal police officers are also certified as federal law enforcement officers by the Bureau
ofIndian Affairs. If defendant has such a certification, he is an employee of an agency of
the federal government and service is also required upon the U.S. Attorney, and possibly,
upon the Bureau ofIndian Affairs. Fed. R. Civ. P. 4(i).
Fifth, the United States Court of Appeals for the Eighth Circuit has held that, "in
order to sue a public official in his or her individual capacity, a plaintiff must expressly
and unambiguously state so in the pleadings, otherwise, it will be assumed that the
defendant is sued only in his or her official capacity." Johnson v. Outboard Marine
Corp.. 172 F.3d 531, 535 (8th Cir. 1999). Plaintiff has failed to designate in what
capacity defendant Carlson is sued. It is therefore assumed he is sued in his official
capacity. An official capacity suit is generally "another way of pleading an action against
an entity of which an officer is an agent." Kentucky v. Graham. 473 U.S. 159, 165-66,
105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114(1985)(quotins Monell v. New York City Dept.
of Social Services. 436 U.S. 658,690, n. 55, 98 S.Ct. 2018,2035, n. 55, 56 L.Ed.2d 611
(1978)). "In an official-capacity claim, the relief sought is only nominally against the
'The complaint is internally inconsistent in the spelling of defendant Carlson's name.
4
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official and in fact is against the official's office and thus the sovereign itself." Lewis v.
Clarke. U.S. . , 137 S. Ct. 1285, 1291, 197 L. Ed. 2d 631 (2017)(aYmg Will
V. Michigan Dent, of State Police. 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45
(1989) and Dugan v. Rank. 372 U.S. 609,611,620-622, 83 S.Ct. 999, 10 L.Ed.2d 15
(1963)). An aetion against a tribal police officer may be barred by sovereign immunity.
Lewis V. Clarke. U.S. at , 137 S. Ct. at 1291-92(applying the above rules in a
case against a defendant who was an employee of a tribal gaming authority).
Sovereign immunity is a jurisdictional threshold matter which may be raised sua
sponte. Lors v. Dean. 746 F.3d 857, 861 (8th Cir. 2014). I exercise my discretion to
deny a defaultjudgment in this case where it is unclear whether the real party in interest
has been served and whether the real party in interest is entitled to sovereign immunity.
For all ofthe foregoing reasons,
IT IS ORDERED that plaintiffs motion. Doc. 16, for a defaultjudgment is
denied. .
DATED this ^ / ^ofDecember,2021.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
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