Bergeson v. State of South Dakota et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
O q 2021
NEIL DENNIS BERGESON,JR., 1:21-CV-01026-CBK
Plaintiff,
vs.
JUDGE CULLEN MCNEECE;DYLAN
KIRCHMEIER; JADEN CARLSON;ZAC
ANGERHOFER; AND TYLER APPLE,
MEMORANDUM AND ORDER
Defendants.
1. BACKGROUND
Mr. Neil Bergeson, Jr.("plaintiff) filed a pro se action in this Court, against the
State of South Dakota, South Dakota Fifth Judicial Circuit Judge Cullen McNeece,
Roberts County State's Attorney Dylan Kirchmeier, Mr. Jaden Carlson, Deputy Roberts
County SheriffZac Angerhofer, Roberts County Sheriff Tyler Apple, and the South
Dakota State Bar Association. Doc. 1. This Court has already dismissed the State of
South Dakota and the South Dakota State Bar Association fi^om this matter. Doc. 18.
The plaintiff alleges defendants violated the Administrative Procedures Act("the A?A"),
5 U.S.C. § 551 et seq., the Tucker Act, 28 U.S.C. §§ 1346, 1491, and the Foreign Agent
Registration ACT("FARA"),22 U.S.C. § 611, e? seq. Because his claims do not venture
close to being grounded in fact or merit, all claims against defendants Kirchmeier,
Angerhofer, and Apple ("defendants") should be dismissed. Defendants filed a motion to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on November
5, 2021. Doc. 8. Stretching beyond his three weeks to respond, Bergeson filed his
response on November 29,2021, doc. 13. The defendants replied on December 1, 2021.
Doc. 14. Since then, Mr. Bergeson has filed further briefing with this Court; on
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December 7, 2021, plaintiff filed what he titled "Plaintiffs More Definite Statement and
Response to Counsel of Record for Defendants' Reply Brief in Support of Kirehmeier,
Apple, and Angerhofer's Motion to Dismiss." Doc. 19.
Carefully scrutinizing the record brought by Bergeson, this matter appears to be
derived out of frustration stemming from a state prosecution of him for Driving Under the
Influence, as well as Unauthorized Ingestion of a Controlled Substanee, in Roberts
County, Fifth Judicial Circuit, South Dakota. South Dakota Circuit Court, Fifth Judicial
District, Roberts County, 54CRI21-000323. I take judicial notice ofthe South Dakota
state court records involving plaintiff, which are available through the Unified Judicial
System's eCourts portal. The charges remain pending in Roberts County. Mr. Bergeson
appears upset that state Judge McNeece dismissed his "Request for Hearing in Common
Law Court," as well as his "Motion for 3.5 Million in Sanetion Pursuant to Rule 11
The plaintiff complains that the state judge and prosecution used "word-smithing and or
legalese" to wrongftilly induce him into "taking the eharges." Complaint, doc. 1 at 6.
The plaintiff proeeeds to make further bold claims before this Court, namely that the
Fifth Judicial Circuit and the state's attorney could not prosecute his case due to their
failure to register as part of the "British Atoned Registry," despite no requirement that
our nation's judges and lawyers swear fealty to the Crown. No such obligation has been
upon our legal class since 1776. As this Memorandum and Order will explain, none of
Mr. Bergeson's claims hold merit and the defendants' motion should be granted.
11. DISCUSION
A. Legal Standard
When reviewing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6),' the Court assumes that all facts in the complaint are true and
construes any reasonable inferences from those facts in the light most favorable to the
nonmoving party. Jacobson Warehouse Co.. Inc. v. Schnuck Mkts.. Ine.. 13 F.4th 659,
668(8th Cir. 2021); Ashcroft v. Iqbal. 556 U.S. 662,678(2009). "A court generally may
'Because this matter is disposed of pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court does not address
defendants' alternative grounds for dismissal under Rule 12(b)(1).
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not consider materials outside the pleadings when deciding a motion to dismiss for failure
to state a claim." Greenman v. lessen, 787 F.3d 882, 887(8th Cir. 2015){citing Porous
Media Corp. v. Pall Corp.. 186 F.3d 1077, 1079 (8th Cir. 1999). However, courts may
"consider 'some materials that are part ofthe public record or do not contradict the
complaint, as well as materials that are necessarily embraced by the pleadings.'" Id.
{quoting Porous Media Corp.. 186 F.3d at 1079). The complaint must contain "'enough
facts to state a claim to relief that is plausible on its face'" to survive the motion to
dismiss. C.N. v. Willmar Pub. Sch.. Indep. Sch. Dist. No. 347, 591 F.3d 624,630(8th
Cir. 2010)(quoting Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 570(2007)). The factual
allegations "'must be enough to raise a right to relief above the speculative level.'" In re
Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1063 (8th Cir. 2017){quoting
Bell Atl. Corp.. 550 U.S. at 555). In addition, the factual contents ofthe complaint must
'"allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.'" Pietoso. Inc. v. Rep. Servs., Inc.,4 F4th. 620,622(8th Cir. 2021)
(quoting Click v. W.Power Sports. Inc., 944 F.3d 714, 717(8th Cir. 2019)).
Nevertheless, courts "are not bound to accept as true a legal conclusion couched as
a factual allegation." Iqbal, 556 U.S. at 678 {quoting Bell Atl. Corp., 550 U.S. at 555).
When assessing the merits of a complaint challenged under Federal Rule of Civil
Procedure 12(b)(6), a court should "'begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption of truth.'" McDonough v.
Anoka Cntv.. 79 F.3d 931,945^6(8th Cir. 2015)(quotins Iqbal, 556 U.S. at 679).
It requires noting that complaints by pro se plaintiffs must "be given liberal
construction." Solomon v. Petrav, 795 F.3d 777,787 (8th Cir. 2015); accord Stone v.
Harrv. 364 F.3d 912,914(8th Cir. 2004). "[A] pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus. 551 U.S. 89,94(2007).
That said, pro se litigants must still present cognizable legal claims to this Court.
Although the Court must take as true any well-pleaded facts, the Court need not accept
"'threadbare recitations ofthe elements of a cause action supported by mere conclusory
3
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statements.'" Zink v. Lombard!. 783 F.3d 1089, 1098(8th Cir. 2015)(quoting Iqbal, 556
U.S. at 678)."When we say that a pro se complaint should be given liberal construction,
we mean that if the essence of an allegation is discernible ... then the district court
should construe the complaint in a way that permits the layperson's claim to be
considered within the proper legal framework." Solomon, 795 F.3d at
787(quoting Stone v. Harry. 364 F.3d 912,914(8th Cir. 2004)). But "the court need not
act as a clairvoyant, trying to read the tea leaves of a pro se motion to determine what the
movant actually seeks. A litigant, even a pro se one, bears some responsibility for
advocating for himself." In re Hevl,609 B.R. 194, 202(B.A.P. 8th Cir. 2019).
B. Whether Kirchmeier is Shielded by Prosecutorial Immunity
State's Attorney Kirchmeier asserts that he is shielded from Bergeson's claims
under the absolute prosecutorial immunity entitled to him. He is right.
Absolute immunity protects prosecutors for acts taken within the scope of their
duties in initiating and pursuing criminal prosecutions. Sample v. City of Woodburv, 836
F.3d 913,916(8th Cir. 2016)(citim Imbler v. Pachtman. 424 U.S. 409,419 n.l3,
(1976)). Further,"'[a]bsolute immunity defeats a suit at the outset, so long as the
official's actions were within the scope of the immunity.'" DeCamp v. Douglas Cnty.
Franklin Grand Jury, 978 F.2d 1047, 1050(8th Cir. 1992)(quotins Imbler, 424 U.S. at
419 n.13). Even "allegations of improper motive in the performance of prosecutorial
functions will not defeat its protection." Sample, 836 F.3d at 916 (citing Myers v.
Morris, 810 F.2d 1437, 1446(8th Cir. 1987), abrogated on other grounds. Burns v. Reed,
500 U.S. 478 (1991)).
That said, prosecutorial immunity is not infallible, as it protects prosecutors only
for acts done in their role as an advocate, specifically acts which are "'intimately
associated with the judicial phase of the criminal process.'" White v. Moulder, 30 F.3d
80, 83(8th Cir. 1994)(auotin^BikQ v. Hall, 427 NW2d. 158, 159(Iowa 1988)). When
determining whether specific actions are protected under absolute immunity, courts have
"adopted a 'functional approach,' looking 'to the nature ofthe function performed, not
the identity of the actor who performed it.'" Woodworth v. Hulshof, 891 F.3d 1083,
4
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1088-89(8th Cir. 2018) Buckley v. Fitzsimmons, 509 U.S. 259, 269(1993)).
Actions that arise "from their initiation of a prosecution and presenting a criminal case"
are the sort of processes prosecutors are absolutely immune in pursuing. Sample, 836
F.3dat916.
Here, when straining to read a cognizable claim against State's Attorney
Kirchmeier, the defendant is shielded from liability under absolute immunity. The
specific actions at hand appear to be Kirchmeier's initiation ofthe criminal proceedings
against Bergeson in the Fifth Judicial Circuit, as well as his steps taken to advance the
prosecution prior to his recusal. The "initiation of a prosecution and presenting a
criminal case" are at the core ofthe protections under absolute immunity enjoyed by
prosecutors such as Mr. Kirchmeier. Id. Bergeson's barebones complaint cannot pierce
Kirchmeier's immunity from suit.
In his responsive brief, which was filed more than three weeks following
defendants' motion, Bergeson grasps atjurisdictional disputes surrounding the Roberts
County Prosecution. See Plaintiff's Response and Answer to Defendants'
Motion to Dismiss and Brief in Support, doc. 13 at 3. Any perceived jurisdictional
defects in his state prosecution must be presented in his state proceedings, not before this
Court. This Court cannot and will not entertain such arguments.
Because the allegations brought forth by Bergeson, when construed liberally,
relate to the core prosecutorial functions carried out by State's Attorney Kirchmeier, all
claims against him should be dismissed under absolute prosecutorial immunity.
C. Whether Tucker Act Claims can Proceed
Having explained why all claims should be dismissed against State's Attorney
Kirchmeier, defendants Angerhofer and Apple contend all claims brought under the
Tucker Act are inapplicable in this matter because they are not arms ofthe federal
government. Because the federal government is not a party to this suit, all claims brought
under the Tucker Act against remaining defendants Angerhofer and Apple should be
dismissed.
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For Bergeson to succeed in bringing a claim against the federal government, he
"must show both a waiver of sovereign immunity and a grant of subject matter
jurisdiction." Tavlor v. United States. 248 F.3d 736,737 (8th Cir. 2001)(citing V S Ltd.
P'ship V. Dep't of Hons.& Urban Dev.. 235 F.3d 1109, 1112(8th Cir. 2000)). The
Tucker Act permits certain suits against the United States, specifically contract actions,
where the federal government has waived its sovereign immunity. See Middlebrooks v.
United States. 8 F.Supp.3d 1169, 1174(D.S.D. 2014). However,this waiver expressly
"vests exclusive subject matter jurisdiction over all suits in excess of$10,000 in the
Court of Federal Claims." V S Ltd. P'ship. 235 F.3d at 1112 (citing 28 U.S.C. §§ 1346,
1491; Mullallv v. United States, 95 F.3d 12, 14 (8th Cir. 1996)). See also Middlebrooks,
8 F.Supp.3d at 1174("The Tucker Act waives the United State's sovereign immunity as
to certain suits for money damages, but vests exclusivejurisdiction over all such suits
seeking money damages exceeding $10,000 in the Court ofFederal Claims.")(emphasis
added)(citing Suburban Mortg. Assocs.. Inc. v. United States Dep't of Hous. & Urban
Dev.,480 F.3d 1116, 1122(Fed. Cir. 2007)). Further, the statute "does not create
'substantive rights. A plaintiff relying on the Tucker Act must premise [his] damages
action on 'other sources of law,' like 'statutes or contracts.'" Me. Comm. Health Options
V. United States, 140 S.Ct. 1308, 1327(2020)(quotins United States v. Navaio Nation,
556 U.S. 287, 290(2009)). See also Fletcher v. United States, 151 Fed. C1 487, 497
(2020)("Plaintiffs 'must identify a separate source of substantive law that creates the
right to money damages' for their claim to come within the jurisdictional reach and
waiver of the Tucker Act.")(quoting Jan's Helicopter Serv. v. FAA,525 F.3d 1299, 1306
(2008)). Bergeson cannot hide behind vague pronouncements of suit pursuant to the
Tucker Act and expect a windfall from Roberts County, an entity that is not an arm ofthe
United States.
The plaintiffs Tucker Act claims against Deputy Sheriff Angerhofer and Sheriff
Apple fall three times over:(1)Bergeson is not contending a contract dispute with the
federal government;(2)this Court holds no subject matter jurisdiction to hear such a suit
(Bergeson has gone leaps and bounds beyond the $10,000 threshold for the Court of
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Federal Claims: he has requested eleven million dollars in relief); and (3)Angerhofer and
Apple are not arms of the federal government.
This Court will not waste the judicial resources ofthe Court of Federal Claims and
transfer this matter; rather, all claims raised under the Tucker Act should be dismissed
against the remaining defendants because there is no contract dispute at hand and because
law enforcement officers of Roberts County are not agents of the United States.
D. Whether Bergeson can Bring Claims under the APA
Defendants Angerhofer and Apple also contend Mr. Bergeson cannot bring
forward claims pursuant to the APA against them as agents of Roberts County because
their office is not an arm of the federal government. This is true.
The inquiry for Bergeson's APA-related claims is short. While the APA permits
judicial review for those "suffering legal wrong because of[an] agency action, or
adversely affected or aggrieved by [an] agency action," an "agency" is clearly defined as
"each authority of the Government ofthe United States." 5 U.S.C. §§ 701(b)(1), 702
(emphasis added). "'[T]he APA does not grant federal courts jurisdiction to review
actions ofstate or municipal agencies.'" King v. Citv of Marion, Arkansas, 2020 WL
534173, at *17(E.D. Ark. Feb. 3, 2020)(quotins Hunter v. Underwood, 362 F.3d 468,
477(8th Cir. 2004)). '"By its own terms, the APA does not apply to state agencies.'"
Hurdsman v. Salkeld. 2011 WL 976603, at *2(E.D. Ark. Feb. 1, 2011)(Report and
Recommendation Adopted in Part, Rejected in Part on Other Grounds, 2011 WL
1044047(March 18, 2011))(quotins Sw. Williamson Cntv. Cmtv. Ass'n. Inc. v. Slater,
173 F.3d 1033, 1035-36 (6th Cir. 1999)).
Here, Deputy Sheriff Angerhofer and Sheriff Apple are both employed by Roberts
County, not a federal agency. Because the Roberts County Sheriffs Department does not
constitute an "agency" under the APA,plaintiffs claims under this statute should be
dismissed against these defendants.
E. Remaining Arguments are Moot
Because all of plaintiffs claims have been disposed ofconcerning these litigants,
defendants' remaining arguments surrounding Bergeson's incredulous claim that
7
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Kirchmeier failed to swear sufficient fealty to the British Crown and register as a foreign
agent; and that any remaining claims against Angerhofer and Apple should be dismissed
for failing to plead a cause of action, are moot.
III. CONCLUSION
Despite Bergeson's best efforts, he is in fact "subject to a corporate policies [sic]
and rules" of South Dakota's state laws, including the criminal proceedings brought
against him in the Fifth Judicial Circuit. Complaint, doe. 1 at 2. Our judges and
lawyers need not pledge loyalty to foreign monarchs to exercise their judicial and
prosecutorial prerogatives in Roberts County, nor can plaintiffs escape liability through
recycled and rehashed pronouncements of being a citizen of"The Republic State of
South Dakota." Id. Accordingly, the defendants' motion should be granted.
IT IS HEREBY ORDERED that defendants Kirchmeier, Angerhofer, and Apples'
motion to dismiss for failure to state a claim, and in the alternative, for lack of subject
matter jurisdiction, doe. 8, is granted.
DATED this ^ jJav ofDecember,2021.
BY THE COURT:
CHARLES B. KORNMAW	KORNMANN
United States District Judge
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