Hines v. Kaemingk et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
NICHOLAS STEWART HINES,
Plaintiff,
vs.
JODY JOHNSON, YANKTON COUNTY
CLERK OF COURTS, in her individual and
official capacity, and JANE OR JOHN DOE, in
their individual and official capacities
Defendants.
4:19-CV-04108-LLP
ORDER DENYING PLAINTIFF’S
MISCELLANEOUS MOTIONS
Plaintiff, Nicholas Stewart Hines, filed a pro se civil rights lawsuit under 42 U.S.C.
§ 1983. Doc. 1. This Court screened Hines’s Amended Complaint. Doc. 32. This Court denied
Hines’s motion for reconsideration and analyzed his motion under Federal Rules of Civil
Procedure 59(e) and 60(b). Doc. 43. Pending before this Court are Hines’s motions for: (1) court’s
ruling and supplemental pleadings; (2) appointment of counsel; (3) intervention emergency
preliminary injunction; and (4) an expert. Docs. 44, 46, 52, 56.
I. 	Motion for Court’s Ruling and Supplemental Pleadings
First, Hines asks that this Court rule on his motion for reconsideration, Doc 34. Doc. 44 at
1. This Court has already denied his motion for reconsideration. Doc. 43. Thus, this Court denies
this portion of his motion as moot. Second, Hines seeks to supplement his pleadings. Doc. 44. A
court may “permit a party to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the pleading to be supplemented.” Fed. R. Civ.
P. 15(d). “ ‘A supplemental pleading,[] is designed to cover matters subsequently occurring but
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pertaining to the original cause.’ ” United States v. Vorachek, 563 F.2d 884, 886 (8th Cir. 1977)
(quoting Berssenbrugge v. Luce Mfg. Co., 30 F. Supp. 101 (W.D. Mo. 1939)).
The purpose of Rule 15(d) is to promote as complete an adjudication of the dispute
between the parties as possible by allowing the addition of claims which arise after
the initial pleadings are filed. Leave to file a supplemental complaint under Rule
15(d) rests with the court's discretion and should be freely granted if it will promote
the just disposition of the case, not cause undue prejudice or delay, and not
prejudice the rights of any parties. The court applies Rule 15(d) in a manner aimed
at securing the just, speedy and inexpensive determination of every action-the
standard applicable to motions to amend under [Rule] 15(d) is essentially the same
standard that applies to [Rule] 15(a).
Smith v. Brown, 2018 WL 1440328, at *17 (D.S.D. Mar.22, 2018) (quoting Carl Zeiss Meditec,
Inc. v. Xoft, Inc., 2011 WL 1326053 at *1 (D.Del. Apr.5, 2011) (punctuation altered, internal
citations omitted). “In exercising its discretion, the court should also consider whether
“ ‘the proposed pleading is futile in that it adds nothing of substance to the original allegations or
is not germane to the original cause of action.’ ” Smith, 2018 WL 1440328, at *17
(quoting Lewis v. Knutson, 699 F.2d 230, 239 (5th Cir. 1983) (citations omitted)). A pleading is
futile when it does not withstand a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). Moody v. Vozel, 771 F.3d 1093, 1095 (8th Cir. 2014) (internal quotation omitted).
Under Rule 12(b)(6), a plaintiff must plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The Court will first address the claims Hines desires to supplement against the South
Dakota Department of Corrections Defendants (DOC Defendants). This Court dismissed all
claims against DOC Defendants in its screening order. Doc. 32. Thus, DOC Defendants are no
longer named defendants in this action. In his motion to supplement, Hines claims that the DOC
Defendants seized $960 of his stimulus payment without notice and without authority. Doc. 44 at
5. DOC Defendants allegedly added the line “[t]ax returns and stimulus payments are not exempt
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from garnishment and will be processed as a normal incoming mail deposit” in October 2020 to
their prison policies. Doc. 44-1 at 29. Hines argues that these actions amount to a due process
violation under the Fourteenth Amendment and an Eighth Amendment violation Doc. 44 at 5-6.
Specifically, Hines claims that the DOC Defendants violated the Excessive Fines Clause
under the Eighth Amendment when they allegedly seized his stimulus money. Id. “The
Excessive Fines Clause thus ‘limits the government's power to extract payments, whether in cash
or in kind, as punishment for some offense.’ ” United States v. Bajakajian, 524 U.S. 321, 326
(1998) (quoting Austin v. United States, 509 U.S. 602, 609-610, (1993) (emphasis deleted)
Hines’s claim that DOC Defendants seized his stimulus payment does not reasonably fall under
the Eighth Amendment Excessive Fines Clause. The DOC Defendants’ alleged seizure of his
stimulus payment was related to a lien regarding his confinement fee in Yankton County and not
as a punishment for his underlying conviction. Thus, his Excessive Fines claim against DOC
Defendants is futile.
Further, his claim that DOC Defendants seized the money without due process or
authority is futile. If there is an adequate postdeprivation remedy, then there is no due process
violation for even the intentional deprivation of a prisoner’s property. Hudson v. Palmer, 468
U.S. 517, 533 (1984). Because state law provided the prisoner in Hudson with adequate state
remedies after the deprivation of his property, the Court held that no due process violation
occurred in that case. Id. at 535. Here, SDCL § 21-3-3 provides an adequate postdeprivation
remedy. This statute provides a cause of action for wrongful conversion of personal property. See
SDCL § 21-3-3. Section 21-3-3 provides a description of the damages available for conversion,
but the tort of conversion is a common law tort not defined in the statute. Rensch v. Riddle's
Diamonds of Rapid City, Inc., 393 N.W.2d 269, 271 (S.D. 1986). “Conversion is the
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unauthorized exercise of control or dominion over personal property in a way that repudiates an
owner’s right in the property or in a manner inconsistent with such right.” Chem-Age Indus., Inc.
v. Glover, 652 N.W.2d 756, 766 (S.D. 2002). The common law and SDCL § 21-3-3 provide
Hines with an adequate postdeprivation remedy for the conversion of his property. Thus, there is
no procedural due process violation. Hudson, 468 U.S. at 535. Hines’s dues process claim is
futile.
Hines alleges that the DOC’s new policy about tax returns violates the Supremacy Clause.
Doc. 44 at 5. The Supremacy Clause of the United States Constitution preempts state law and state
constitutional law that conflicts with federal law. U.S. Const. art. VI, cl. 2. State law is “ ‘pre-
empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply
with both state and federal law, or where the state law stands as an obstacle to the accomplishment
of the full purposes and objectives of Congress.’ ” S.D. Min. Ass’n, Inc. v. Lawrence Cty., 155
F.3d 1005, 1009 (8th Cir. 1998) (quoting Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S.
572, 581 (1987)). Hines claims that the prison policy violates the Supremacy Clause. Prison policy
is not state law. Thus, Hines’s Supremacy Clause claim is futile.
DOC Defendants are allegedly violating their ow prison policy. Doc. 44 at 3-4. “[A]
violation of prison policy alone does not give rise to section 1983 liability[.]” Moore v. Rowley,
126 Fed. Appx. 759 (8th Cir. 2005) (citing see Gardner v. Howard, 109 F.3d 427, 430 (8th Cir.
1997). Hines’s allegations that the DOC Defendants are violating their own policy are futile.
Finally, this Court will address Hines’s supplemental claims against the Yankton County
Defendants. He claims that the DOC Defendants sent the Yankton County Defendants his seized
stimulus money. Doc. 44 at 5, 7. He asserts that on June 7, 2012, a lien was filed against him for
$4,090.00 for a confinement fee. Id. at 7. On January 25, 2021, Hines sent a letter to Yankton
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County Defendants and stated that he had no notice that he owed a confinement fee and that the
lien is in violation of his due process rights under the Fourteenth Amendment. Id. at 8. He also
asserts that this is a violation of his Eighth Amendment Excessive Fine clause. Id. As stated
above, Hines has an adequate postdeprivation remedy making his due process claim against
Yankton County Defendants is futile.
Further, the confinement fee is not considered a fine for purposes of the Eighth
Amendment. The United States Supreme Court has “explained that at the time the Constitution
was adopted, ‘the word fine was understood to mean a payment to a sovereign as punishment for
some offense.’ ” Bajakajian, 524 U.S. at 326 (1998) (quoting Browning-Ferris Industries of Vt.,
Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265 (1989). “The Excessive Fines Clause thus ‘limits
the government's power to extract payments, whether in cash or in kind, as punishment for some
offense.’ ” Bajakijian, 524 U.S. at 326 (quoting Austin, 509 U.S. at 609-610 (emphasis deleted)
(stating that a forfeiture are considered fines when they constitute as a punishment for the
offense.). Here, the confinement fee was assessed due to Hines’s stay in the Yankton County jail.
The confinement fee is not a punishment for his state conviction, but rather, a fee he owes for his
pre-trial confinement. Because the confinement fee is not a punishment for his criminal conviction
Hines’s claims do not raise a plausible Eighth Amendment violation. Thus, Hines’s Excessive
Fine claim against Yankton County Defendants is futile. Because Hines’s supplemental claims are
futile, this Court denies his motion to supplement.
II. 	Motion for Appointment of Counsel
Hines filed a third motion for the appointment of counsel. Doc. 46. He asserts that his
allegations are true, that he has multiple transfers coming up and is concerned that his legal mail
could become lost. Id. at 2. “A pro se litigant has no statutory or constitutional right to have
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counsel appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). When
determining whether to appoint counsel to a pro se litigant, the court will look at the factual and
legal complexity of the claims. In King v. Patterson, the Eighth Circuit held that the district court
did not err in denying a prisoner’s motion for appointment of counsel. 999 F.2d 351, 353 (8th
Cir. 1993). In King, the plaintiff alleged one incident of excessive force by prisoner personal. Id.
The Eighth Circuit reasoned that the denial of the plaintiff’s motion for appointment of counsel
was appropriate “[b]ecause this case was neither factually nor legally, complex, the complaint
alleged a single incident of excessive force, and the Court held that King had clearly
communicated his concerns and could adequately present the facts of his case to the Court.” Id.
Factual complexity is not the only factor that a district court considers whether
appointment of counsel is appropriate. Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir. 1986)
(citing Maclin v. Freake , 650 F.2d 885, 888 (7th Cir. 1981)). The Eighth Circuit considers “the
factual complexity of the case, the ability of the indigent to investigate the facts, the existence of
conflicting testimony, the ability of the indigent to present his claim and the complexity of the
legal issues.” Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991) (citing Johnson, 788 F.2d
at 1322-23.). In Johnson, the Eighth Circuit held that the district court erred when they denied
plaintiff’s motion for counsel solely based on the plaintiff’s failure to raise factually complex
issues. Johnson, 788 F.2d at 1322.
This Court has already denied Hines’s previous motions for appointment of counsel.
Docs. 19, 32. Since this Court’s previous denials, Hines’s claims have not become more legally
or factually complex. He can clearly and adequately present his facts and claims to this Court.
The Court remains open to the possibility of appointing counsel if this case proceeds beyond the
motion stage. It is one thing to well represent one’s position on paper to the court, and it is yet
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another to be able to adequately try a case to a jury. Hines’s motion for the appointment of
counsel, Doc. 46, is denied.
III. 	Motion for Emergency Preliminary Injunction
Hines moves for a preliminary injunction against Defendant Jody Johnson. Doc. 52. He
claims that it is possible for Johnson to manipulate and conceal documents that are necessary to
his prior and current legal claims. Id. at 2. He argues that this possibility puts Johnson an
advantage and it is possible for her to continue alleged unethical actions to benefit her defense. Id.
“Plaintiff is in a position to be harmed legally.” Id. at 3 (internal quotation omitted).
“A preliminary injunction is an extraordinary remedy.” Roudachevski v. All–American
Care Ctrs., Inc., 648 F.3d 701, 705 (8th Cir. 2011) (citation omitted); see also Hughbanks v.
Dooley, 788 F. Supp. 2d 988, 992 (D.S.D. 2011). “The burden of proving that a preliminary
injunction should be issued rests entirely with the movant.” Goff v. Harper, 60 F.3d 518, 520
(8th Cir. 1995). “Whether a preliminary injunction should issue involves consideration of (1) the
threat of irreparable harm to the movant; (2) the state of the balance between this harm and the
injury that granting the injunction will inflict on other parties litigant; (3) the probability that
movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys.,
Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). The Eighth Circuit held that “ ‘the failure to
show irreparable harm is, by itself, a sufficient ground upon which to deny a preliminary
injunction.’ ” Adam–Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir. 1996)
(quoting Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir. 1987)). “To demonstrate
irreparable harm, a plaintiff must show that the harm is ‘certain, great and of such imminence
that there is a clear and present need for equitable relief.’ ” Gard v. Dooley, 2014 WL 4243586,
at *1 (D.S.D. Aug. 26, 2014) (quoting Packard Elevator v. Interstate Commerce Comm’n, 782
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F.2d 112, 115 (8th Cir. 1986)). A “ ‘plaintiff must make a showing of actual, substantial harm
resulting from the alleged infringement.’ ” Gard, 2014 4243586, at *1; (quoting Travelers
Express Co. v. Transaction Tracking Technologies, Inc., 305 F. Supp.2d 1090, 1095 (D. Minn.
2003)).
Here, Hines only alleges that it is possible for Johnson to hide documents and that her
position puts her at an advantage to do so. Doc. 52 at 2-3. He asserts that he is “in a position to
be harmed legally.” Id. at 3. Being in a position to be legally harmed is not the same thing as
making an actual showing of substantial harm. Possible or speculative harm is not enough to
support a preliminary injunction and because Hines has failed to show irreparable harm, his
motion for a preliminary injunction is denied. See Adam–Mellang, 96 F.3d at 299.
IV. 	Motion for Expert
Hines moves for an expert under Federal Rules of Evidence Rule 706(a). Doc. 56. The
expert would speak to the validity of the entries in the Unified Judicial System. Id. Although this
Court granted Hines leave to proceed in forma pauperis under 28 U.S.C. § 1915, Doc. 9, this
“ ‘does not provide for the appointment of expert witnesses to aid an indigent litigant.’ ”Dale v.
Dooley, 2015 WL 224969, at *4 (D.S.D. Jan. 15, 2015) (quoting Hannah v. United States, 523
F.3d 597, 601 (5th Cir. 2008). “A court may appoint an expert for indigent prisoners under
Federal Rules of Evidence Rule 706(a), but this purpose it to ‘assist the trier of fact from a
position of neutrality not to serve as an advocate.’ ” Johnson v. Kaemingk, 2020 WL 376589, at *1
(D.S.D. Jan. 23, 2020) (quoting Dale, 2015 WL 224969, at *4) (internal quotation omitted).
At this time, there is no need for an expert to assist a trier of fact as this case is still in the
motions stage. Further, after review of the motion, the questions Hines proposes to have the expert
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answer are positioned to serve Hines as an advocate. Finally, Hines might need a factual witness
for his claims, but no need for an expert witness has been shown.
Accordingly, it is ORDERED:
1. That Hines’s motion for court’s ruling and for supplemental pleadings, Doc. 44, is
denied.
2. That Hines’s motion for the appointment of counsel, Doc. 46, is denied.
3. That Hines’s motion for intervention emergency preliminary injunction, Doc. 52, is
denied.
4. That Hines’s motion for expert, Doc. 56, is denied.
BY THE COURT:
________________________________
Lawrence L. Piersol
United States District Judge
Dated this 3rd day of May, 2021.
ATTEST:
MATTHEW W. THELEN, CLERK
_________________________
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