Huff v. City of Brookings Police Department et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
REGGIE D. HUFF, 4:22-CV-4020-LLP
Plaintiff,
vs.
CITY OF BROOKINGS POLICE DEPT.,
DAWN M. ELSHERE,DAVID ERICKSON,
JOEL PERRY,SEAN DOREMUS,MARISSA
D. MARSHALL,RICHELLE GUERRIERI,
THE SDSU FOUNDATION,STEVE
ERPENBACH,and JANE &/0R JOHN DOES,
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF'S RULE 59(e)
MOTION TO VACATE
Defendants,
and
DAWN M.ELSHERE,
Nominal Defendant.
\
Following this Court's dismissal of his case, pro se plaintiff, Reggie Huff("Huff),filed a
two-part motion to vacate pursuant to Federal Rule of Civil Procedure 59(e). (Docs. 62 and 64.)
Huffs federal § 1983 claim was dismissed with prejudice for failure to state a claim under Rule
12(b)(6). The dismissal ofthe remaining state law claims was without prejudice to Huffs right to
refile the claims in state court within 30 days from the date of July 6,2022, pursuant to 28 U.S.C.
§ 1367(d), unless state law provides for a longer period in which state law claims can be made.
(Doc. 61.)
BACKGROUND
On February 14, 2022, Huff filed a lawsuit against the Defendants alleging a variety of
claims. (Doc. 1.) In lieu of answering the complaint. Defendants filed five separate motions to
dismiss. The motions were filed in March, April and May of2022. (Docs. 17,22, 27,41 and 49.)
Huffresponded in opposition to each ofthe motions to dismiss(Docs. 32, 33, 35, 52 and 56), but
he did not move to amend his complaint. On July 6, 2022, this Court granted the Defendants'
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motions to dismiss in a Memorandum Opinion and Order. (Doc. 60.) Judgment was entered in
favor of Defendants on July 11, 2022. (Doc. 61.) Huff now seeks to vacate the Court's Opinion
and Judgment pursuant to Rule 59(e). (Docs. 62 and 64.) He also requests leave to amend his
complaint. (Doc. 64.)
DISCUSSION
I. MOTION TO AMEND
Huffs proposed Amended Complaint seeks to add a claim entitled "Free Speech
Declaratory Relief." (Doc. 64-1, p. 55.) In that claim, Huff asks the Court to make a declaration
that his phone calls and his letter to defendant Marshall are protected free speech under the First
Amendment,"which no governmental official has the self determining right, authority, interest or
legal obligation to intercept, interfere with, retaliate against, control criminalize or silence by any
means." {Id) Huffincludes additional allegations that certain actions taken by Defendants were
in retaliation for the exercise ofthis alleged free speech, and were meant to squelch it. {Id., pp. 4,
9, 18, 22, 23, 57.) Huff also adds ten new pages of allegations regarding Defendant Guerrieri to
bolster his argument that this Court has jurisdiction over her because she lied to Officer Perry, and
she intended to harm Huffin South Dakota with her lies. {Id., pp. 35-^6.)
"The Federal Rules of Civil Procedure liberally permit amendments to pleadings." Dennis
V. DillardDep't Stores, Inc., 207 F.3d 523, 525 (8th Cir. 2000); see also Fed.R.Civ.P. 15(a)(2)
("The court should freely give leave when justice so requires."). A timely motion to amend
pleadings should normally be granted under Rule 15(a) absent good reasons to the contrary. See
Popp Telcom v. American Sharecom, Inc., 210 F.3d 928, 943 (8th Cir. 2000). A district court
appropriately denies the motion to amend if "there are compelling reasons such as undue delay,
bad faith, or dilatory motive, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the non-moving party, or futility ofthe amendment." Moses,com Sec.,
Inc. V. Comprehensive Software Sys., Inc.,406 F.3d 1052, 1065(8th Cir. 2005)(internal quotation
marks omitted).
A district court has "considerable discretion to deny a post judgment motion for leave to
amend because such motions are disfavored." United States ex rel. Roop v. Hypoguard USA, Inc.,
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559 F.3d 818, 824(8th Cir. 2009). This Court will exercise its discretion to deny Huffs request to
amend his complaint based on both undue delay and futility ofthe amendment.
First, the Defendants' five separate motions to dismiss put Huff on notice of the possible
deficiencies in his complaint. Huff could have requested leave to amend at any time before this
Court ruled on the motions to dismiss. Instead, he did not seek leave to amend until after this
Court found that his complaint failed to establish a viable § 1983 claim because he failed to show
a violation of a federal right. (Doc. 60, p. 10-12.) Unexcused delay in seeking to amend until
after the case has been dismissed is a sufficient basis on which to deny a post-judgment motion for
leave to amend. See Ash v. Anderson Merchandiser, LLC,799 F.3d 957,963-64(8th Cir. 2015)
(affirming the denial of a post-judgment motion to amend where the motion to dismiss put the
plaintiffs on notice that their allegations were defieient long before the case was dismissed, yet the
plaintiffs did not request leave to amend until after the district court found their complaint deficient
and dismissed the case). The five motions to dismiss filed by Defendants in this case should have
warned Huffthat his claims were in jeopardy.
Second, Huffs proposed amendment to assert a violation of his First Amendment rights
would be futile. Huff seeks to add a claim that his speech in the two phone calls to Marshall and
the letter to Marshall were protected speech, and that the state actor defendants retaliated against
Hufffor exercising his First Amendment right to free speech.^
Denial of a motion for leave to amend on the basis offutility "means the district court has
reached the legal conclusion that the amended complaint could not withstand a motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure." Cornelia I. Crowell GST Trust v.
Possis Med,Inc., 519 F.3d 778,782(8th Cir. 2008). "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.'"Ashcroftv. Iqbal,\29 S.Ct. 1937, 1949 (2009)(quoting Corp. v. Twombly,
550 U.S. 544,570(2007)). "[Ajlthough a complaint need not include detailed factual allegations.
^ Huff argues that his addition ofthe free speech claim in his Proposed First Amended Complaint
is not a change but "merely a more efficient way to adjudicate the pre-existing theories." (Doc.
86, p. 9.) The Court again carefully reviewed Huffs initial complaint and concludes that it had no
reason to discern Huff was alleging a claim that state actors retaliated against Huff for exercising
his First Amendment right to free speech.
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'a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation ofthe elements ofa cause of action will not do.'"C.N.
V. Willmar Pub. Schs., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30 (8th Cir. 2010)(quoting
Twombly, 550 U.S. at 555).
When ruling on a motion to dismiss under Rule 12(b)(6)a district court may consider some
materials outside the pleadings, such as public records, materials that do not contradict the
complaint, or materials that are "necessarily embraced by the pleadings." Noble Systems Corp. v.
Alorica Cent., LLC, 543 F.3d 978, 982 (8th Cir. 2008); Porous Media Corp. v. Pall Corp., 186
F.3d 1077, 1079 (8th Cir. 1999). Thus, in addition to considering the allegations contained in the
proposed Amended Complaint, the Court also will take judicial notice of documents from the
proceedings before Judge Elshere in state court, including the docket sheets from each ofthe four
consolidated protection order proceedings, certain items from the record ofthose proceedings, and
the transcript from the January 9, 2020 hearing held on the consolidated proceedings.^ (Doc. 23,
Exhibits A-M.)
To state a claim under § 1983 for retaliation in violation of the First Amendment, Huff
must plausibly allege: 1)that his speech was constitutionally protected by the First Amendment;
2) that the Defendants took adverse action against him that would chill a person of ordinary
finnness from continuing the activity; and(3)that the adverse action was motivated at least in part
by Huffs protected activity. See Danielson v. Huether, 355 F. Supp. 3d 849, 860(D.S.D. 2018).
Huffs claim fails because he has not demonstrated that his speech or conduct toward Marshall is
protected by the First Amendment.
At the January 9, 2020 hearing. Judge Elshere entered an Order for Protection in favor of
Marshall and against Huff after finding that Huff "harassed" Marshall with the two phone calls
and the letter which Huff alleges are protected speech.^ (Doc. 23-8.) Judge Elshere found by a
^ A federal court may take judicial notice of relevant state court documents. Knutson v. City of
Fargo,600 F.3d 992, 1000(8th Cir. 2010). See also Filer v. Avera McKennan Hospital, 2016
WL 1117441, *1 (D.S.D. 2016); Waldnerv. North American Truck & Trailer, Inc., 277 F.R.D.
401,406(D.S.D. 2011).
^ On December 6, 2019, Huff wrote a letter to Marshall. Huff attached a copy ofthe letter to his
complaint.(Doc. 1-1.) Among other things. Huff accused Marshall of filing a false police report.
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preponderance of the evidenee that Huff had eommitted "stalking" of Marshall, as defined hy
SDCL22-19A-1. {Id.)
Defendants point out that the South Dakota Supreme Court has held harassment that
violates SDCL § 22-19A-1 is not protected speeeh:
[T]his Court has "previously stated fireedom of expression does not include
threatening or harassing conduct[.]" State v. Asmussen, 2003 S.D. 102,	|	9, 668
N.W.2d 725, 731; see also State v. Springer-Ertl, 2000 S.D. 56, 17, 610 N.W.2d
768, 773("Freedom of expression ... is not absolute.")(eiting Frohwerk v. United
States, 249 U.S. 204,206, 39 S.Ct. 249,250,63 L.Ed. 561,564(1919)(freedom of
expression"was never meant'to give immunity for every possible use oflanguage'
"); State v. Hauge, 1996 S.D. 48,1 10, 547 N.W.2d 173,176("One is not free... to
send threatening or harassing letters."); State v. Crelly, 313 N.W.2d 455, 457
(S.D.1981)(No one has "the right to make obseene telephone ealls.")).
"The legislature has recognized that stalking is a serious eoneem of soeiety."
Asmussen, 2003 S.D. 102,^ 9, 668 N.W.2d at 731."The legislature, therefore, has
a legitimate interest in proteeting those who are harassed and plaeed in serious fear
for their safety." Id. SDCL 22-19A-1 prohibits stalking. A eourt may enter a
proteetion order if it "finds by a preponderanee of the evidence that stalking has
taken plaee[.]" SDCL 22-19A-11.
Erickson v. Earley, 878 N.W.2d 631,635(S.D. 2016). The Eighth Cireuit has similarly held that
the First Amendment allows eontent-based restrietions on speeeh that is criminal in nature. See
United States v. Petrovic, 701 F.3d 849, 855 (8th Cir. 2012) ("[SJpeech integral to eriminal
eonduet" is a elass of speech where eontent-based restrictions are allowed imder the First
Amendment). Though not direetly addressing this issue, the Supreme Court has suggested that
some speeeh considered harassment may be proseribed ■without violating the First Amendment.
In Rowan v. US. Post Office Dep Y, 397 U.S. 728, 730 (1970), the Supreme Court upheld a federal
statute requiring mailers to stop future mailings to a household after a recipient notified the
Postmaster General that they wanted the sender to stop sending the mailings. The Rowan Court
"categorically reject[ed] the argument that a vendor has a right under the Constitution or otherwise
to send unwanted material into the home of another," id. at 738, reasoning that "the mailer's right
Huff threatened legal action against Marshall and asked her to pay damages to him in the amount
of $750.00. After receiving the December 6, 2019 letter from Huff, Marshall sought a protection
order against him.
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to communicate is circumscribed only by an affirmative act ofthe addressee giving notice that he
wishes no further mailings from that mailer." Id. at 737.
In sum,ifspeech or conduct is harassment,the government may restrain that kind ofspeech
consistent with the First Amendment. Huffs speech and conduct toward Marshall, deemed
harassment and stalking by Judge Elshere after a hearing where all parties had an opportunity to
be heard, is not protected by the First Amendment. Because Huff cannot prevail on the facts he
has alleged, it would be futile to give him an Opportunity to amend. Thus, Huffs request to file
his proposed amended complaint is denied.
Huffs new allegations regarding defendant Guerrieri in the proposed amended complaint
do not alter the Court's conclusion that it lacks jurisdiction over Guerrieri. Huffs allegations
confirm that Guerrieri's contacts with South Dakota are limited to one phone conversation she had
with defendant Perry while she was in Ohio. As explained earlier, this contact is not enough for
this Court to establish personal jurisdiction over Guerrieri, and the proposed amendment would be
futile.
II. Rule 59(e) Motion to Vacate
Rule 59(e) empowers district courts to alter or amend judgments. Fed. R. Civ. P. 59(e).
The Rule was adopted"'to mak[e] clear that the district court possesses the power to rectify its
own mistakes in the period immediately following the entry ofjudgment.'"Norman v. Ark. Dep't
ofEduc., 79 F.3d 748, 750 (8th Cir. 1996)(quoting White v. N.H Dep't ofEmp. Sec., 455 U.S.
445, 450 (1982)). Motions xmder Rule 59(e) "serve the limited function of correcting 'manifest
errors of law or fact or to present newly discovered evidence.'" United States v. Metro. St. Louis
Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006)(quoting Hagerman v. Yukon Energy Corp., 839
F.2d 407, 414 (8th Cir. 1988)). They cannot "'be used to relitigate old matters, or to raise
arguments or present evidence that could have been raised prior to the entry ofjudgment.'"Exxon
Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008)(quoting 11 Charles Alan Wright et al..
Federal Practice & Procedure § 2810.1, at 127-28 (2d ed. 1995)(footnotes omitted)). District
courts have"'broad discretion'"in deciding whether to grant or deny such a motion and the
Eighth Circuit will not reverse"'absent a clear abuse of discretion.'"Sparkman Learning Ctr. v.
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Ark. Dep't ofHuman Servs., 775 F.3d 993, 1001 (8th Cir. 2014)(quoting Christensen v. Qwest
Pension Plan, 462 F.3d 913,920(8th Cir. 2006)).
In part one of his motion to vacate. Huff questions the impartiality of this Court, and he
accuses the Court of unethical conduct in the maimer in which it granted Defendants' motions to
dismiss. (Doc. 62.) In part two ofthe motion to vacate. Huff asserts that the Court changed facts,
made up facts, ignored facts, twisted and narrowed the law, and failed to allow him an opportunity
to amend his complaint before wrongly concluding that Huffs complaint should be dismissed.
(Doe. 64.)
A. Plaintiffs Motion to Vacate — Part One (Doc. 62)
Huff explains that the basis for Part One of his motion to vacate is his discovery of a 2018
interview ofthis Court. (Doc. 63.) Huff asserts that the interview proves two things; 1)that this
Court only works seven months each year; and 2)that this Court delegates too much work to its
law clerks. The fact that Huffs assertions are wrong is irrelevant. The problem with Part One of
Huffs motion to vacate is that he raises no direct challenge to the legal reasoning underlying this
Court's decision dismissing his § 1983 claim. Instead, he accuses the Court of not reading all of
the documents filed in tis ease, of making of facts and ignoring facts. These bare assertions are
insufficient to prove this Court's Opinion dismissing Huffs § 1983 claim was based on manifest
errors oflaw or facts.
B. Plaintiffs Motion to Vacate — Part Two(Doc. 64)
In Part Two of his motion to vacate. Huff expresses his dissatisfaction with not being
invited to amend his Complaint prior to dismissal, and he attaches a proposed First Amended
Complaint. (Doe. 64 and Doc. 64-1.) Huff opines that the only possible reason his case could
have been dismissed is if counsel for defendants had direct access to this Court ex parte. He asserts
that this Court favors the female defendants over Huff as a male.
Huff contends that the Court erred as to the following facts. First, Huffsays that the Court
should have found that defendant Marshall lied when she said she "declined" Huffs invitation for
a date. Second, Huff argues that the Court should have taken judicial notice of the police report
and interpreted it as showing defendant Guerrieri lied to defendant Officer Perry or, at the very
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least, the Court should have found that Guerrieri eommitted a tort in South Dakota by her reports
to Officer Perry about Huff which are reflected in the police report. Had the Court done this, Huff
believes it would have found that personaljurisdiction over Guerrieri exists. Finally, Huff believes
the Court was misled by Defendants' arguments in favor of dismissal.
Regarding errors in the law. Hufffirst alleges that his complaint clearly asserts an unlawful
seizure and detention occurred in violation of § 1983. Second, Huff argues that "any action by
governmental authority to squelch and retaliate against" speech is actionable under 42 U.S.C. §
1983, and the Court missed this claim in his Complaint. (Doc. 64, p. 15.) Third, Huff contends
that the law allows the Court to infer that a conspiracy to violate his civil rights oeeurred based on
all of the facts he alleged in his complaint. Finally, Huff asserts that Judge Elshere acquired
jurisdiction over the state court proceedings involving Huff for the predetermined purpose of
violating Huffs civil rights, and thus this Court erred by finding Judge Elshere is entitled to
judicial immunity.
After carefully considering Huffs arguments,and after again reviewing the record and this
Court's Memorandum Opinion and Order dismissing the Complaint, the Court finds no error or
law or fact, much less any manifest errors oflaw or fact. Accordingly,
IT IS ORDERED that both parts ofPlaintiffs motion to vacate are denied.
(Does. 62 and 64.)
Dated thisik''day of U^, ,2022.
ATTEST;
MATTHEW W. THELEN,CLERK
BY THE COURT:
(AdLawrence L. Piersol	'awrence L. Piersol
United States District Judge
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