2008 SD 72, *; 754 N.W.2d 813, **;
2008 S.D. LEXIS 112, ***

CHARLES E. SISNEY, Plaintiff and Appellant, v. TIM REISCH - SOUTH DAKOTA SECRETARY OF CORRECTIONS (in both his official and individual capacities), and DOUGLAS WEBER - DIRECTOR OF PRISON OPERATIONS FOR SOUTH DAKOTA, (in both his official and individual capacities), Defendants and Appellees.

# 24683

SUPREME COURT OF SOUTH DAKOTA

2008 SD 72; 754 N.W.2d 813; 2008 S.D. LEXIS 112

March 26, 2008, Considered on Briefs
July 23, 2008, Opinion Filed

OPINION


[**816] ZINTER, Justice

[*1] Charles E. Sisney, an inmate in the South Dakota State Penitentiary (SDSP), filed a pro se complaint alleging that he was a third-party beneficiary of a settlement agreement between the Department of Corrections (DOC) and a former inmate. Sisney claimed that DOC and penitentiary officials breached the settlement agreement when they did not provide him with pre-packaged, certified kosher meals. The circuit court dismissed for failure to state a claim. We reverse, concluding that Sisney pleaded sufficient facts to support the inference that defendants were responsible for enforcing the settlement agreement; that Sisney was a third-party beneficiary of the agreement; and that [***2] suit on the agreement was not barred by sovereign immunity.

I

[*2] Sisney pleaded that he is Jewish and follows a kosher diet as part of his religion. Defendant Tim Reisch is the Secretary of the DOC, and Defendant Douglas Weber is the Director of Prison Operations.

[*3] In 1998, inmate Philip Heftel filed a suit under 42 USC § 1983 alleging that the DOC had deprived Heftel of his constitutional right to free exercise of the Jewish religion. The parties ultimately entered into a settlement agreement (hereinafter "Heftel Agreement" or "Agreement"), which Heftel and Jeffrey Bloomberg (then Secretary of the DOC) signed in February 2000. The Heftel Agreement provided that the DOC "agree[d] to provide a kosher diet to all Jewish inmates who request it," and that the kosher diet would include "[p]repackaged meals which are certified kosher for noon and evening meals[.]"

[*4] In February of 2007, the SDSP's food service provider, CBM Inc., quit serving prepackaged kosher meals and began serving a new kosher diet, including a rice and bean mixture prepared and cooked in the SDSP kitchen. Sisney alleged that this change violated the Heftel Agreement and his religious beliefs. Sisney subsequently submitted [***3] a grievance through DOC administrative procedures. Weber responded that Sisney was not a party to the Heftel Agreement. Sisney then brought this suit against Reisch and Weber in their individual and official capacities. Sisney alleged that Reisch and Weber breached the Heftel Agreement "in violation of South Dakota Law and Statute(s)."

[*5] The circuit court dismissed the suit, concluding that Sisney's claim was barred by statutory immunity, and in addition, the complaint did not contain sufficient factual assertions supporting an inference that either Reisch or Weber was responsible for enforcing the Agreement. 1 The circuit court did not reach the issue of whether Sisney had third-party standing to enforce the Heftel Agreement. Sisney now appeals the dismissal and the denial of an opportunity to amend his pleadings.

FOOTNOTES

1 The court concluded that Sisney's complaint merely alleged that Reisch and Weber held positions in the DOC, and that Weber had merely responded to Sisney's grievance.


II

[*6] A motion to dismiss tests the legal sufficiency of the pleading, and therefore, we review the grant of a motion to dismiss de novo. Elkjer v. City of Rapid City, 2005 SD 45, P6, 695 NW2d 235, 239. "While a [***4] complaint attacked by a Rule 12(b)(5) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of [**817] action will not do." Sisney v. Best, 2008 SD 70, P7, 754 NW2d 804 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964-65, 167 LEd2d 929 (2007) (internal citations omitted). The rules "contemplate[ ] [a] statement of circumstances, occurrences, and events in support of the claim presented." Best, 2008 SD 70, P7, 754 NW2d at ___ (quoting Bell Atlantic, US at , 127 US at 1965 footnote 3 ) (quoting 5 Wright & Miller Federal Practice and Procedure: Civil 3d § 1202, at 94). Ultimately, the complaint must allege facts, which, when taken as true, raise more than a speculative right to relief. Bell Atlantic, US at , 127 SCt at 1965. Furthermore, "[w]here the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)([5]) is appropriate." Benton v. Merrill Lynch & Co. Inc., 524 F3d 866, 870 (8thCir 2008).

III

A

[*7] The circuit court first concluded [***5] that the complaint failed to state a claim because it contained "no factual assertions supporting an inference that it was the Defendants' responsibility to carry out the [Heftel Agreement]." We disagree with this conclusion.

[*8] The complaint alleged that Reisch is the current Secretary of Corrections. The Agreement reflects that it was executed on behalf of the DOC by Jeffrey Bloomberg, the former Secretary of Corrections. These facts create a legal inference that Reisch, as the current Secretary of Corrections, is the superseding party responsible for carrying out the Agreement. See SDCL 24-1-4 (providing, "[t]he state penitentiary and its ancillary facilities shall be under the direction and government of the Department of Corrections"); SDCL 1-15-1.3 (providing, "the secretary of corrections shall be qualified by training and experience to administer the programs of the Department of Corrections"). Similarly, as the alleged Director of Prison Operations for the DOC, Weber's position creates the inference that he may be responsible for enforcing the Agreement at the penitentiary. At this stage in the proceedings, Sisney is entitled to the inference that it was Reisch's and Weber's [***6] responsibility to enforce the Heftel Agreement at the SDSP.

B

[*9] On appeal, Defendants reassert their circuit court argument that Sisney was not entitled to enforce the Agreement as a third-party beneficiary. SDCL 53-2-6-provides, "[a] contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it." In Trouten v. Heritage Mut. Ins. Co., 2001 SD 106, P13, 632 NW2d 856, 858-59, we highlighted the express benefit requirement, noting that the purported third-party beneficiary must clearly show that the contract was entered into with intent to benefit that party:

[W]henever two parties enter into an agreement that appears to have been made expressly for the benefit of a third party, and such agreement has a good and sufficient consideration, the agreement itself creates all the privity there need be between the person for whose benefit the agreement was entered into and the party assuming the obligation, and an action at law should lie regardless of whether there was any obligation existing between the other party to the agreement and the third party. But, before the third party can adopt the agreement entered into and recover [***7] thereon, he must show clearly that it [**818] was entered into with the intent on the part of the parties thereto that such third party should be benefited thereby.

(Emphasis added). Standing to enforce an agreement as a third-party beneficiary may also be conferred upon a class of individuals. "[T]he terms of the contract must clearly express intent to benefit that party or an identifiable class of which the party is a member." Verni v. Cleveland Chiropractic College, 212 SW3d 150, 153 (Mo 2007). "This intent might, in a given case, sufficiently appear from the contract itself [.]" Trouten, 2001 SD 106, P13, 632 NW2d at 859.

[*10] In this case, the Heftel Agreement clearly expressed that the DOC agreed to provide a kosher diet to an identifiable class of which Sisney was a member; i.e., "to all Jewish inmates who request it." Agreement, P3. Further, the Agreement expressly reflected an intent to benefit all members of that class: "[i]nmates who request a kosher diet will receive kosher meals regardless of their custody status;" and the DOC "will provide inmates who request a kosher diet a kosher meal prior to the beginning of the fast day and at the conclusion of the fast." Agreement, PP3, 4. At [***8] the pleading stage of the suit, this explicit contractual language reflected the signatories' intent to provide more than an incidental benefit: the foregoing contractual language raised the inference that the Heftel Agreement was intended to expressly benefit all Jewish inmates who requested a kosher diet. Because Sisney alleged that he was a member of that class, we conclude that Sisney's complaint was sufficient to state a claim that he is a third-party beneficiary with standing to enforce the Heftel Agreement.

C

[*11] Defendants, however, argue they were immune from suit under SDCL 3-21-8. That statute provides: "No person . . . is liable for failure to provide a prison, jail, or penal or correctional facility, or if such facility is provided, for failure to provide sufficient . . . services in a prison or other correctional facility." SDCL 3-21-8. The circuit court agreed, concluding that this language "indicates a legislative intent to provide . . . immunity to the state and state officials, regardless of whether the potential liability will derive from tort or contract." The court further concluded that "[t]his same analysis can be applied to SDCL 3-21-9[.]" 2 We disagree with the [***9] circuit court's analysis. 3

FOOTNOTES

2 That statute provides, "[n]o person . . . is liable for any injury caused by or resulting from . . . [s]ervices or programs administered by or on behalf of the prison, jail, or correctional facility." SDCL 3-21-9.

3 Defendants argue that Sisney waived the immunity issue because he did not brief it on appeal. Sisney's brief, however, argues that no immunity is available because the contract mandates that certified kosher meals shall be provided and that the provision of certified kosher meals is a ministerial act for which immunity is unavailable. Thus, the issue of immunity was not waived.


[*12] Sisney sued Defendants in their individual and official capacities. "[I]t is well-settled that suits against officers of the state 'in their official capacity, [are] in reality [suits] against the State itself.'" Dan Nelson, Auto., Inc. v. Viken, 2005 SD 109, P23, 706 NW2d 239, 247 (citations omitted). It is further settled that the State is generally immune from suit under Article III Section 27 of the South Dakota Constitution. With respect to individual capacity suits, state employees who are "sued in an individual capacity [are] entitled to immunity depend[ent] upon [***10] 'the function performed by [**819] the employee.'" Casazza v. State, 2000 SD 120, P11, 616 NW2d 872, 875 (citation omitted). State employees are generally immune from suit when they perform discretionary functions, but not when they perform ministerial functions. Wulf v. Senst, 2003 SD 105, P20, 669 NW2d 135, 142. Finally, immunity may have been available under SDCL 3-21-8 and 3-21-9. Therefore, whether acting in official or individual capacities, we may assume without deciding that the Defendants may have been generally cloaked with immunity in performing their duties for the DOC.

[*13] Nevertheless, even when sovereign immunity is applicable, it is waived to the extent the State entered into a contract and a party or third-party beneficiary sues to enforce that contract. In Wilson v. Hogan, 473 NW2d 492, 494 (SD 1991), this Court noted that the State may waive its immunity "by entering into a contract which implicitly gives the other party to the contract a right of action upon it." In Blue Fox Bar, Inc. v. City of Yankton, 424 NW2d 915, 917-18 (SD 1988), we explicitly stated that "immunity is not a defense to a claim against the state for contractual liability arising out of either [***11] governmental or proprietary operations." Therefore, at the pleading stage of the proceedings, Sisney's complaint states a claim to the extent that he is pursuing a third-party beneficiary contractual cause of action to enforce the Agreement. 4

FOOTNOTES

4 For this reason, we need not address the ministerial/discretionary distinction of sovereign immunity and SDCL 3-21-8 and 3-21-9.


D

[*14] We finally observe that Sisney's complaint also sought declaratory relief. SDCL 3-21-8 and 3-21-9 only provide immunity from suits seeking to impose liability. See Clay v. Weber, 2007 SD 45, P7, 733 NW2d 278, 282 (considering SDCL 3-21-8 and SDCL 3-21-9, which immunize persons, political subdivisions, and the state from liability) (emphasis added). See also Dakota Sys., Inc. v. Viken, 2005 SD 27, P9, 694 NW2d 23, 28 (providing that the "declaratory judgment action does not violate the principles of sovereign immunity"). Therefore, immunity is not generally available to the extent Sisney only seeks declaratory relief. "[A] declaratory judgment action attacking the constitutionality of a statute or seeking relief from an invalid act or an abuse of authority by an officer or agent is . . . not prohibited by principles [***12] governing sovereign immunity." Nelson, 2005 SD 109, P27, 706 NW2d at 250. For these reasons, Sisney was entitled to pursue his claim for declaratory relief.

[*15] Considering Sisney's factual assertions in a light most favorable to the pleader, the complaint stated a third-party beneficiary cause of action for enforcement of the Heftel Agreement and for declaratory relief. In light of this conclusion, we do not consider Sisney's argument regarding amendment of the complaint.

[*16] Reversed and remanded.

[*17] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

2008 SD 70, *; 754 N.W.2d 804, **;
2008 S.D. LEXIS 111, ***

CHARLES E. SISNEY, Plaintiff and Appellant, v. BEST INC. (Individually), CBM, INC. (Individually), and WILLIAM CARL PREYER (Individually), Defendants and Appellees.

# 24682

SUPREME COURT OF SOUTH DAKOTA

2008 SD 70; 754 N.W.2d 804; 2008 S.D. LEXIS 111

March 26, 2008, Considered on Briefs
July 23, 2008, Opinion Filed

OPINION


[**806] ZINTER, Justice

[*1] Charles E. Sisney, an inmate in the South Dakota State Penitentiary (SDSP), filed a pro se complaint against Best Inc., CBM Inc., and William Carl Preyer (Defendants). Sisney asserted claims under 42 USC §§ 1983 and 1985. He also asserted numerous state law claims. All claims arise out of Best's and CBM's contracts with the State to provide food at the SDSP. The circuit court dismissed for failure to state a claim, concluding that Sisney's complaint was untimely as to Best, and that it failed to allege sufficient facts to support the remaining federal and state claims. With the exception of the state law claim of deceit, we affirm.

[**807] I

[*2] Sisney pleaded [***2] that he is Jewish and follows a kosher diet as part of his religion. He further pleaded that the State entered into a contract with Best to provide food services at the SDSP from February of 2000 until July 31, 2002. As part of this contract, Best provided a kosher diet, including kosher bread. Best purchased the bread from Metz Baking Company.

[*3] In August 2002, the State entered into a new contract with CBM to provide the same services, including food for kosher diets. From that time until December 8, 2004, CBM provided prisoners receiving a kosher diet with the same bread Best had previously served. On December 8, 2004, CBM began purchasing bread from Old Home Bakery.

[*4] Sisney later "heard rumors" from other prisoners that the bread Best and CBM provided might not have been "certified" kosher. Sisney submitted an administrative grievance through the Department of Corrections. The grievance was forwarded for investigation by Preyer, a food service director and employee of CBM. Preyer responded to the grievance, stating that the bread had "certification on file." In January 2006, however, Sisney received an affidavit from Preyer in the course of other litigation stating that CBM did not, [***3] at that time, have kosher certification for either the Metz or Old Home Bakery bread that had been provided through December 14, 2004. Sisney thereafter commenced this suit as the result of Preyer's conflicting responses and the assertion that non-kosher certified food had been (and was being) provided.

[*5] Because this appeal concerns the circuit court's dismissal on the pleadings, the complaint's allegations that have been preserved for appeal are repeated verbatim. Sisney pleaded that Defendants were liable under the federal causes of action for:

"The violation of the plaintiff's rights guaranteed under the U.S. and South Dakota constitutions. . . ."

"The conspiracy of the defendants to deny plaintiff his constitutional rights as guaranteed under the U.S. and South Dakota constitutions."

Sisney pleaded that Defendants were liable under the state causes of action for:

"The deceptive acts of the defendants in violation of SDCL 37-24-6."

"The fraudulent actions of the defendants in violation of SDCL 20-10-1 et seq."

"The interference with the plaintiff's religious practices by the defendants in violation of SDCL 22-19B-4 and 20-9-32."



[*6] Defendants moved to dismiss under SDCL 15-6-12(b)(5) for [***4] failure to state a claim upon which relief can be granted. The circuit court dismissed the federal constitutional and conspiracy claims, concluding that the statute of limitations had expired as to Best, and tolling did not apply because Sisney did not assert fraud in connection with those claims. The court further concluded that Sisney did not assert facts sufficient to support his remaining federal claims. The court finally concluded that Sisney either did not assert sufficient facts or relied on inapplicable statutes to support his state law claims. Sisney now appeals the dismissal and the denial of an opportunity to amend his pleadings.

II

[*7] We have followed the Supreme Court's Conley test to determine whether a complaint fails to state a claim upon which relief can be granted.

[**808] The test most often applied is found in the leading case of Conley v. Gibson, 355 US 41, 45-46, 78 SCt 99, 102, 2 L. Ed. 2d 80355 U.S. 41, 78 S. Ct. 99, 2 LEd2d 80, 84 (1957): In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle [***5] him to relief.

Schlosser v. Norwest Bank S.D., 506 NW2d 416, 418 (SD 1993). Recently, however, the Supreme Court abrogated the Conley "no set of facts" standard. Bell Atlantic Corp. v. Twombly, 550 US 544, 127 SCt 1955, 167 LEd2d 929 (2007). 1 "[T]he Court retired the generous and often disparaged 'no set of facts' language because it permitted an 'approach to pleading [that] would dispense with any showing of a reasonably founded hope that a plaintiff would be able to make a case.'" Leventhal v. Schaffer, 2008 U.S. Dist. LEXIS 1569, 2008 WL 111301, *2 (NDIowa 2008) (citing Bell Atlantic, 550 US at , 127 SCt at 1968-69). Bell Atlantic replaced the Conley standard with the following:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level[.] "[T]he pleading [***6] must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]

Bell Atlantic, 550 US at , 127 SCt at 1964-65 (citations omitted). The Supreme Court explained:

While, for most types of cases, the Federal Rules eliminated the cumbersome requirement that a claimant "set out in detail the facts upon which he bases his claim," Conley v. Gibson, 355 US 41, 47, 78 SCt 99, 2 LEd2d 80 (1957) (emphasis added), Rule 8(a)(2) still requires a "showing," rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only "fair notice" of the nature of the claim, but also "grounds" on which the claim rests. See 5 Wright & Miller [Federal Practice and Procedure: Civil 3d] § 1202, at 94, 95 (Rule 8(a) "contemplate[s] the statement of circumstances, occurrences, and events in support of the claim presented" and does not authorize a pleader's "bare averment that he wants relief and is entitled to it").

Id. at 3 , 127 SCt at 1965 . [***7]

FOOTNOTES

1 The Supreme Court observed that under "a focused and literal reading of Conley's 'no set of facts' standard, a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some 'set of [undisclosed] facts' to support recovery." Bell Atlantic, 550 at , 127 SCt at 1968 (citations omitted)[0]. Thus, the Court concluded that the "[no set of facts] phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at , 127 SCt at 1969.


[*8] Because SDCL 15-6-8(a) 2 [**809] also requires a "showing" that the pleader is "entitled" to relief, we adopt the Supreme Court's new standards. We continue to accept the material allegations as true and construe them in a light most favorable to the pleader to determine whether the allegations allow relief. Fenske Media Corp. v. Banta Corp., 2004 SD 23, P7, 676 NW2d 390, 392-93. Because that determination tests the legal sufficiency of the pleading, we review the matter de novo. [***8] Elkjer v. City of Rapid City, 2005 SD 45, P6, 695 NW2d 235, 238.

FOOTNOTES

2 SDCL 15-6-8(a) provides:

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain:

(1) A short and plain statement of the claim showing that the pleader is entitled to relief; and

(2) A demand for judgment for the relief to which he deems himself entitled.

Relief in the alternative or of several different types may be demanded.




III

A

Whether Sisney's 42 USC §§ 1983 and 1985 claims against Best were time barred.

[*9] Federal civil rights actions must be brought within three years after the alleged constitutional deprivation occurred. SDCL 15-2-15.2 (providing "[a]ny action brought under the federal civil rights statutes may be commenced only within three years after the alleged constitutional deprivation has occurred"). Sisney alleged that Best was the food service provider at SDSP until July 31, 2002. Sisney's suit was commenced on May 14, 2007, more than four years after Best provided food services. Therefore, Sisney's federal claims against Best were untimely.

[*10] Sisney, however, argues that the statute of limitations was tolled by SDCL 15-2-3. That statute [***9] provides: "In an action for relief on the ground of fraud the cause of action shall not be deemed to have accrued until the aggrieved party discovers, or has actual or constructive notice of, the facts constituting the fraud." SDCL 15-2-3. Sisney's reliance on SDCL 15-2-3 is misplaced because Sisney did not seek relief based upon fraud in connection with his constitutional claims under 42 USC §§ 1983 and 1985. 3 The circuit [**810] court correctly dismissed the federal claims against Best as untimely.

FOOTNOTES

3 Sisney did allege that Preyer and CBM engaged in a fraudulent "cover-up" regarding bread certification. Sisney suggested that Preyer could have corrected CBM's alleged unconstitutional act (providing non-kosher food), but covered it up after the fact.

This allegation is insufficient for two reasons. First, Sisney alleged Preyer's conspiracy was with CBM, Preyer's corporate employer. This type of employer/employee agreement fails to satisfy the separate identity requirements necessary to sustain an alleged conspiracy between two parties. See Larson v. Miller, 76 F3d 1446, 1456 n.6 (8thCir 1996) (providing: "According to the intracorporate conspiracy doctrine, a corporation cannot conspire with [***10] itself through its agents when the acts of the agents are within the scope of their employment."); Meyers v. Starke, 420 F3d 738, 742 (8thCir 2005) (providing, "any conspiracy claim under 42 USC § 1985(2) is barred under the intracorporate conspiracy doctrine, which allows corporate agents acting within the scope of their employment to be shielded from constituting a conspiracy under § 1985").

Second, although Sisney pleaded that Preyer's alleged cover-up constitutes a continuing constitutional violation, after-the-fact conduct following an alleged violation is insufficient because it occurred after the purported violation. Therefore, the subsequent "help" Preyer may have provided in covering-up an alleged violation could not have been a part of any initial violation depriving Sisney of a right or privilege secured by the Constitution. See generally Benton v. Merrill Lynch & Co., 524 F3d 866, 870 (8thCir 2008) (noting that in construing a motion to dismiss on the pleadings, any alleged assistance in furthering a violation of law is irrelevant regarding whether the initial violation was sufficiently pleaded).


B

Whether Sisney asserted sufficient facts regarding the remaining Defendants [***11] under 42 USC § 1983 or § 1985.

[*11] Sisney pleaded that he may have been deprived of kosher bread, and therefore the remaining Defendants violated his rights "guaranteed under the U.S. and South Dakota constitutions." See supra P5. Sisney did not, however, identify which provisions of the state or federal constitutions were allegedly violated. More importantly, in his 42 USC § 1983 action against individual non-state actors, Sisney failed to plead the requirement that those Defendants acted pursuant to an unconstitutional state policy or custom. See Sanders v. Sears, Roebuck & Co., 984 F2d 972, 976 (8thCir 1993). We acknowledge that courts have liberally interpreted pro se civil rights litigation to not always require "language specifically alleging the 'existence of an unconstitutional policy or custom.'" Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F3d 588, 591 (8thCir 2004) (citation omitted). Nevertheless, some "language or facts from which an inference could be drawn that [defendants] had a[n illegal] policy or custom" is still required. Crumpley-Patterson, 388 F3d at 591 (citation omitted). Accordingly, even under the pre-Bell Atlantic standard, Sisney's failure to include any [***12] "allegations, reference, or language by which one could begin to draw an inference that the conduct complained of . . . resulted from an unconstitutional policy or custom" renders the complaint deficient. Id. The circuit court's dismissal of the § 1983 claim is affirmed.

[*12] Sisney's § 1985 claim also fails. "Civil rights pleadings are construed liberally[, but] they must not be conclusory and must set forth facts which state a claim as a matter of law." Davis v. Hall, 992 F2d 151, 152 (8thCir 1993) (citing Nickens v. White, 536 F2d 802, 803 (8thCir 1976)). The allegations of the conspiracy required for a § 1985 claim must be pleaded with sufficient specificity and factual support to suggest a "meeting of the minds." Deck v. Leftridge, 771 F2d 1168, 1170 (8thCir 1985) (citation omitted). Therefore, a plaintiff alleging conspiracy is required to "at least allege that the defendants had directed themselves toward an unconstitutional action by virtue of a mutual understanding, and provide some facts suggesting such a meeting of the minds." Id. See also Rogers v. Bruntrager, 841 F2d 853, 856 (8thCir 1988) (providing that a conspiracy claim requires allegations of specific facts showing a "meeting [***13] of minds" among alleged conspirators).

[*13] In this case, Sisney failed to allege any facts necessary to even infer a meeting of minds or mutual understanding. Sisney failed to state one fact alleging that an agreement existed, what the supposed agreement was, when it was reached, or who was involved; i.e., that an agreement existed between Best and CBM or between Best and Preyer. His complaint merely used the word "conspiracy" without any factual support to infer a meeting of the minds. See supra P5. Rule 12 (b)(5) and Rule (8)(a) require more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. Bell Atlantic, US at , 127 SCt at 1964-65. These rules contemplate a "statement of circumstances, occurrences, and events in support of the claim presented." [**811] Bell Atlantic, US at , 127 SCt at 1965 n.3. Having failed to meet these pleading requirements, Sisney's complaint failed to state a claim under § 1985.

C

Whether Sisney stated State law claims.

[*14] The circuit court dismissed Sisney's state law claims, concluding that he either did not raise sufficient facts establishing the claims or the statutes cited were inapposite. Sisney appeals only the [***14] dismissal of state law claims under SDCL 37-24-6; 20-10-1; 22-19B-4; and 20-9-32. We therefore limit our discussion to these statutes. See Spenner v. City of Sioux Falls, 1998 SD 56, P30, 580 NW2d 606, 613 (providing, "[f]ailure to brief [a] matter supported by case or statutory authority constitutes a waiver of that issue").

[*15] Sisney alleged that Defendants engaged in deceptive trade practices in violation of SDCL 37-24-6. This statute provides in part:

It is a deceptive act or practice for any person to:

(1) Knowingly and intentionally act, use, or employ any deceptive act or practice, fraud, false pretense, false promises, or misrepresentation or to conceal, suppress, or omit any material fact in connection with the sale or advertisement of any merchandise, regardless of whether any person has in fact been mislead, deceived, or damaged thereby. . . .

SDCL 37-24-6 (emphasis added). This statute is, however, a criminal proscription under which Sisney has no individual rights of enforcement. Nygaard v. Sioux Valley Hosps. & Health Sys., 2007 SD 34, P33, 731 NW2d 184, 196. Sisney's rights, if any, arose under the civil action allowed in SDCL 37-24-31, a related statute that specifically requires [***15] a causal connection between the alleged deceptive practice and the damages suffered:

Any person who claims to have been adversely affected by any act or a practice declared to be unlawful by 37-24-6 shall be permitted to bring a civil action for the recovery of actual damages suffered as a result of such act or practice.

(Emphasis added). Therefore, to state a claim under SDCL 37-24-31 and 37-24-6, Sisney must have pleaded that he was adversely affected as a result of a deceptive practice used by the Defendants in connection with their sale or advertising of the bread. See Nygaard, 2007 SD 34, P33, 731 NW2d 184 at 196-97 (providing that to state a claim under SDCL 37-24-31, plaintiffs must have pleaded that their damages were proximately caused by alleged violations of the trade practices act).

[*16] In this case, Sisney cannot prove that his claim involved the statute's core prohibited activity: damages proximately caused by deceptive practices in connection with the sale or advertisement of merchandise. Sisney cannot prove such a claim because he did not acquire the bread in connection with either Best's or CBM's practices in their sale or advertisement of their food services. The only trade [***16] practices that could have taken place in connection with the sale or advertising of the food services took place between Best/CBM and the State. Sisney was not involved in that transaction. Sisney acquired the bread only because he was an inmate who received the bread from the DOC in connection with Sisney's incarceration. Because Sisney cannot prove that he acquired the bread as a result of any deceptive practice in connection with its sale or advertising by Best or CBM, the circuit court's dismissal of Sisney's claim under SDCL 37-24-31 and 37-24-6 is affirmed.

[**812] [*17] Sisney also alleged that Defendants committed deceit in violation of SDCL 20-10-1, which provides: "One who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage where he thereby suffers." In pleading this tort, while malice, intent, knowledge, and conditions of the mind may be generally alleged, "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." SDCL 15-6-9(b). The circuit court concluded: Sisney did "nothing more than assert a mere suspicion that the bread being served [was] not [***17] kosher-certified. The [c]omplaint contains no attending fact to support such an allegation." We disagree.

[*18] As previously noted, the Supreme Court recently explained that although the pleadings must contain something more than "a statement of facts that merely creates a suspicion [of] a legally cognizable right of action," the review is conducted "on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]" Bell Atlantic, US at , 127 SCt at 1964-65 (citations omitted). We also accept the material allegations as true and construe them in a light most favorable to the pleader to "determine whether the allegations allow relief[.]" Fenske Media Corp., 2004 SD 23, P7, 676 NW2d at 393 (citing Schlosser, 506 NW2d at 418).

[*19] Considering these standards, Sisney's complaint not only pleaded facts suggesting that the bread provided was not "certified" kosher, but also that it was non-kosher. Sisney pleaded: "that at all times Best represent[ed] the bread given to kosher diets [was] certified kosher," Complaint P11; "that because of Best Inc. Click for Enhanced Coverage Linking Searches's deceit, [Sisney] consumed non-kosher bread," id. P15; that at all times, CBM "represent[ed] the bread given to [***18] kosher diets [was] certified kosher," id. P21; that he "was continually assured by CMB Inc. that all food given to [him] was kosher," id. P23; that Preyer's statement in his affidavit "contradict[ed] his assurance" that the bread "had kosher certification," id. P28; and that "[b]ecause of CMB Inc.'s deceit, [Sisney] consumed non-kosher bread," id. P30. Sisney further pleaded: that "at all times" CMB and Best knew that the bread was not certified, and that Preyer previously stated that bread was certified. Id. P11. Sisney finally asserted that "[t]he fraudulent actions of the defendants . . . violat[ed] SDCL 20-10-1." Id. P36.

[*20] These pleadings contain facts suggesting that because of Defendants' misrepresentations, Sisney consumed not only "non-certified," but also non-kosher food. Because these factual averments are specific and SDCL 15-6-9(b) provides that a defendant's intent or knowledge may be averred generally, Sisney's allegations stated a claim for deceit under SDCL 20-10-1.

[*21] Sisney finally alleged that Defendants violated SDCL 22-19B-4 and 20-9-32. SDCL 22-19B-4 is a criminal statute that provides "[a]ny person who, by threats or violence, intentionally prevents another person [***19] from performing any lawful act enjoined upon or recommended by the religion which such person professes is guilty of a Class 1 misdemeanor." Sisney cannot, however, independently enforce criminal statutes. See Linda R.S. v. Richard D., 410 US 614, 619, 93 SCt 1146, 1149, 35 LEd2d 536 (1973). Therefore, the circuit court's dismissal of the claim premised on SDCL 22-19B-4 is affirmed.

[*22] SDCL 20-9-32 provides a similar civil cause of action for a violation [**813] of SDCL 22-19B-1. Under SDCL 22-19B-1, it is unlawful for a person to:

[M]aliciously and with the specific intent to intimidate or harass any person . . . because of that person's . . . religion . . . : (1) [c]ause physical injury to another person; or (2) [d]eface any real or personal property of another person; or (3) [d]amage or destroy any real or personal property of another person; or (4) [t]hreaten, by word or act, to do the acts prohibited[.]

Sisney, however, states no claim under this statute because he makes no claim that Defendants caused or threatened to cause physical injury either to him or his property.

IV

Whether the circuit court abused its discretion in denying Sisney an opportunity to amend his complaint.

[*23] Sisney argues [***20] that the circuit court abused its discretion in failing to give him an opportunity to amend his complaint in order to cure any pleading deficiencies. A circuit court's decision regarding amendment of the pleadings "will not be disturbed on appeal unless there is a clear abuse of discretion which results in prejudice." In re T.A., 2003 SD 56, P38, 633 NW2d 225, 237. In this case, Sisney only generally raised the issue of amendment in a brief resisting dismissal. He did not file a motion to amend, nor did he explain what specific factual allegation he would have added to overcome the defects requiring dismissal. For these reasons, the circuit court did not abuse its discretion in declining to make, schedule, and grant (essentially sua sponte) a motion allowing amendment of the complaint.

[*24] The circuit court's dismissal of Sisney's federal claims is affirmed. The dismissal of Sisney's state law claims under SDCL 37-24-6, 22-19B-4, and 20-9-32 is affirmed. The dismissal of Sisney's claim under SDCL 20-10-1 is reversed and remanded.

[*25] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

2008 SD 71, *; 754 N.W.2d 639, **;
2008 S.D. LEXIS 113, ***

CHARLES E. SISNEY, Plaintiff and Appellant, v. STATE OF SOUTH DAKOTA and CBM INC. and DOUGLAS WEBER - DIRECTOR OF PRISON OPERATIONS FOR SOUTH DAKOTA (in his official and individual capacities), Defendants and Appellees.

# 24684

SUPREME COURT OF SOUTH DAKOTA

2008 SD 71; 754 N.W.2d 639; 2008 S.D. LEXIS 113

March 26, 2008, Considered on Briefs
July 23, 2008, Opinion Filed

OPINION


[**641] ZINTER, Justice

[*1] Charles E. Sisney, an inmate in the South Dakota State Penitentiary (SDSP), filed a pro se complaint against the State of South Dakota, Douglas Weber, and CBM Inc. Click for Enhanced Coverage Linking Searches(Defendants). Sisney alleged that CBM breached a state contract under which CBM agreed to provide food services to the State at Department of Correction (DOC) facilities. Sisney sought damages for breach of contract as a third-party beneficiary. He also asserted that the alleged breach of contract supported causes of action under 42 USC § 1981 and § 1985. The circuit court dismissed for failure to state claim, concluding that Sisney was not a third-party beneficiary who could enforce a public contract; that the State was immune [***2] from suit; and that Sisney failed to assert facts sufficient to proceed on his federal claims. We affirm, finding no third-party beneficiary status and an insufficient pleading to state a claim under § 1981 and § 1985.

I

[*2] Sisney pleaded that he is Jewish and follows a kosher diet as a part of his religion. Douglas Weber is the Director of [**642] Prison Operations for the State of South Dakota, and CBM is a corporation that provides food services to the State of South Dakota.

[*3] In July or August of 2002, the State entered into a contract with CBM to provide food services at DOC facilities, including prisons. Under the contract, the services were to be provided "to the State" in a manner that would meet the needs and concerns of the facilities' residents, inmates and staff. The contract provided that "[t]he proposed menu . . . [was to] have an average caloric base of 2700 to 2500 calories per day." The contract further provided that "[f]ood substitutions [were to] be available to accommodate food avoidances due to religious beliefs/practices/observances[.]"

[*4] In April of 2007, CBM began serving different food at DOC facilities in which prisoners had requested a kosher diet. Sisney filed an administrative [***3] grievance through the DOC, claiming that the new kosher diet averaged 400 to 500 fewer calories than the minimum required under the State's contract with CBM. He also alleged that the food did not meet the dictates of his religious beliefs. 1 Weber responded that Sisney's study was incomplete and underestimated the actual caloric content of the meals served. Weber informed Sisney that no action would be taken. Sisney grieved Weber's response. Weber again rejected Sisney's claims, indicating that no further action would be taken on his grievance.

FOOTNOTES

1 Sisney based his grievance on his study of the kosher diet.


[*5] Sisney then brought this suit premising his state and federal claims on allegations that Defendants had "conspired together to cause, permit, and allow a breach of contract to the detriment of [Sisney] because of his religious beliefs; and that this breach of contract resulted in financial gain to the Defendants." 2 Sisney claimed standing to sue for breach of contract "because the contract directly affect[ed] him and his well-being."

FOOTNOTES

2 Sisney's claims were based upon breach of contract. His pleading alleged that the change in food was a . . . :

Count 1: . . . breach of contract between [***4] the State of South Dakota and CBM Inc. Click for Enhanced Coverage Linking Searchesin violation of South Dakota Law(s) and Statute(s).

Count 2: . . . conspiracy by the Defendants to deprive the Plaintiff of the benefits of said contract by breaching and/or allowing said breach of contract in violation of the laws of the United States of America and the State of South Dakota.




[*6] Defendants moved to dismiss for failure to state a claim upon which relief could be granted under SDCL 15-6-12(b)(5). Defendants argued that Sisney's claims were barred by statutory immunity and a lack of standing to assert breach of a public contract between the State and CBM. Defendants also argued that the complaint did not contain sufficient factual allegations to support Sisney's federal constitutional claim of discrimination and conspiracy under 42 USC § 1981 and § 1985.

[*7] The circuit court granted Defendants' motion. The court concluded that "[e]ven assuming as true all of [Sisney's] factual allegations contained in the [c]omplaint, it cannot be said that he has standing to assert a breach of contract claim for a contract which he was not a party, and was not a third-party beneficiary." Regarding Sisney's § 1981 claim, the court concluded that the "pleadings [***5] are bare as to any allegation of discrimination of the sort covered by § 1981." Regarding Sisney's § 1985 claim, the court concluded that even "taking into consideration the fact that Plaintiff is pro se, and relaxing the requirement properly pleading a [§] 1985 claim, it cannot be said that Plaintiff [**643] has asserted a [§] 1985 [conspiracy] claim upon which relief can be granted." Sisney now appeals the dismissal and the denial of an opportunity to amend his pleadings.

II

[*8] A motion to dismiss tests the legal sufficiency of the pleading, and therefore, we review the grant of a motion to dismiss de novo. Elkjer v. City of Rapid City, 2005 SD 45, P6, 695 NW2d 235, 239. "While a complaint attacked by a Rule 12(b)(5) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Sisney v. Best Inc., 2008 SD 70, P7, 754 N.W.2d 804 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007) (internal citations omitted). The rules "contemplate[ ] [a] statement of circumstances, [***6] occurrences, and events in support of the claim presented." Best, P7, 754 NW2d 804 at ___ (quoting Bell Atlantic, 550 US at , 127 S.Ct. at 1965 3) (quoting 5 Wright & Miller Federal Practice and Procedure: Civil 3d § 1202, at 94). Ultimately, the complaint must allege facts, which, when taken as true, raise more than a speculative right to relief. Bell Atlantic, 550 US at , 127 SCt at 1965. Furthermore, "[w]here the allegations show on the face of the complaint there is some insuperable bar to relief, dismissal under Rule 12(b)([5]) is appropriate." Benton v. Merrill Lynch & Co. Inc., 524 F3d 866, 870 (8thCir 2008).

III

[*9] Sisney asserts that he has standing to sue for breach of the State's contract with CBM, arguing that he is a third-party beneficiary of that contract. This assertion underlies both the state and federal causes of action.

[*10] SDCL 53-2-6 governs the right to enforce a contract as a third-party beneficiary. The statute provides, "[a] contract made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it." SDCL 53-2-6 (emphasis added). This does not, however, entitle every person who received some benefit from the contract [***7] to enforce it. As this Court stated in Thompson Yards v. Van Nice, 59 SD 306, 308, 239 NW 753, 755 (1931):

The [third-party beneficiary] statute is not applicable to every contract made by one person with another for the performance of which a third person will derive a benefit; the intent to make the contract inure to the benefit of a third party must be clearly manifested. In the language of the statute, the contract must be on "made expressly for the benefit of a third person."

(Citations omitted.) See also Trouten v. Heritage Mut. Ins. Co., 2001 SD 106, P13, 632 NW2d 856, 858; Kary v. Kary, 318 NW2d 334, 336 (SD 1982); Fry v. Ausman, 29 SD 30, 135 NW 708, 710 (1912). Thus, the rule requires that at the time the contract was executed, it was the contracting parties' intent to expressly benefit the third party. And, even then, not all beneficiaries qualify: incidental beneficiaries are not entitled to third-party beneficiary status. North Dakota, in construing language similar to SDCL 53-2-6, explained that even "the mention of one's name in an agreement does not give rise to a right to sue for enforcement of the agreement where that person is only incidentally benefited." First Fed. Sav. & Loan Ass'n of Bismarck v. Compass Inv. Inc., 342 NW2d 214, 218 (ND 1983). [***8] The party claiming third-party beneficiary status must show "that the contract was entered into by the parties directly and primarily for his benefit." Mercado v. Mitchell, 83 Wis. 2d 17, 28, [**644] 264 N.W.2d 532, 538 (Wis 1978). "The benefit must be more than merely incidental to the agreement." Id.

[*11] "Government contracts . . . pose unique difficulties in the area of third-party beneficiary rights because, to some extent, every member of the public is directly or indirectly intended to benefit from such a contract." Clifton v. Suburban Cable TV Co. Inc., 434 Pa. Super. 139, 144, 642 A.2d 512, 515 (PaSuperCt 1994). Therefore, as a general rule, a private party who contracts with the public government entity does not open itself to liability at the hands of the public. Restatement (Second) of Contracts § 302 (1981). A private third-party right of enforcement is not properly inferred because of the potential burden that expanded liability would impose. See id. The right of enforcement in public contracts can only arise from the plain and clear language of the contract. See id. Consequently, when a public contract is involved, private citizens are presumed not to be third-party beneficiaries. Drummond v. Univ. of Pa., 651 A2d 572, 578-79 (PaCommwCt 1994). [***9] The Pennsylvania court observed that "[t]here must be language evincing an intent that the party contracting with the government will be liable to third parties in the event of nonperformance." Id. at 579.

[*12] Under these rules, it is generally held that inmates lack standing to enforce public contracts. Clifton, 642 A.2d at 514. See also Gay v. Ga. Dep't of Corrections, 270 Ga. App. 17, 606 SE2d 53, 57-59 (GaCtApp 2004) 3 (stating, "the mere fact that the [third party] would benefit from performance of the agreement is not alone sufficient" to render that party a third-party beneficiary). The rationale underlying these decisions is that public contracts are intended to benefit everyone, and therefore, the inmate's benefit is only incidental to the contract.

FOOTNOTES

3 Sisney argues that the rationale of Clifton and Gay is inapplicable because the contracts in those cases contained clauses that specifically provided only the State could enforce the contract. This distinction is irrelevant, however, because both cases were decided on the basis that, similar to Sisney's case, there was no indication or language in the contracts that clearly expressed the signatory parties' intent to benefit the specific inmates at issue: [***10] they were only incidentally benefited, and therefore they lacked standing. Clifton, 642 A.2d at 512; Gay, 606 SE2d at 53.


[*13] In this case, the contract was a public contract between the State of South Dakota and CBM, and the contract did not expressly indicate that it was intended for Sisney's direct benefit or enforcement. On the contrary, the contract reflects that it was made for the express benefit of the State, and the collective benefit that inmates may have received was only incidental to that of the State. Sisney concedes as much, indicating that his relationship with the contract involved a mere "benevolent nexus between the promisee [State] and the beneficiary [Sisney]." Brief of Appellant at 12.

[*14] Nevertheless, Sisney argues that because the contract provided that "[t]he contractor shall describe the complaint resolution process in place for addressing complaints,'' Sisney possessed a right of enforcement. Sisney, however, conceded that the complaint resolution mechanism is a general administrative remedy: See SDDOC Policy 1.3.E.2. Because this remedy is a general institutional remedy provided to all inmates to address numerous confinement complaints, and because that remedy [***11] is provided independent of the State's food service contract with CBM, the contract's reference to that policy does not confer contractual third-party beneficiary status on Sisney to enforce the contract.

[*15] Because Sisney did not have standing to sue under this public [**645] contract, and because all of Sisney's claims are dependent upon his right to sue for breach of the contract, we need not discuss the issue of immunity. For the same reason, we need not extensively discuss Sisney's federal claims. 4

FOOTNOTES

4 We note, however, that the purpose of 42 USC § 1981 is to prohibit discrimination in the making or enforcement of contracts on the basis of race. Georgia v. Rachel, 384 U.S. 780, 792, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1996). Discrimination based upon sex, age, or religion does not provide a cause of action under § 1981. Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586, 49 L. Ed. 2d 415 (1976). Therefore, in order for Sisney to state a claim upon § 1981, he must have pleaded that he was deprived of a right that, under similar circumstances, would have been accorded a person of a different race. Schetter v. Heim, 300 FSupp 1070, 1073 (EDWis 1969). Sisney did not, however, allege that he was denied the benefit of [***12] the contract because of his race. Rather, he alleged that Defendants "allow[ed] the breach of contract to the detriment of Plaintiff because of his religious beliefs[.]" Complaint P20.

Sisney's § 1985(3) claim also fails. "Civil rights pleadings are construed liberally[, but] they must not be conclusory and must set forth facts which state a claim as a matter of law." Davis v. Hall, 992 F.2d 151, 152 (8th Cir 1993). The "allegations of a conspiracy must be pleaded with sufficient specificity and factual support to suggest a 'meeting of the minds.'" Deck v. Leftridge, 771 F2d 1168, 1170 (8thCir 1985) (citation omitted). Therefore, Sisney was required to "at least allege that the defendants had directed themselves toward an unconstitutional action by virtue of a mutual understanding, and provide some facts suggesting such a 'meeting of the minds.'" Id. (citation omitted). See also Rogers v. Bruntrager, 841 F2d 853, 856 (8th Cir 1988) (providing that a conspiracy claim requires allegations of specific facts showing "meeting of minds" among alleged conspirators).

In this case, Sisney only alleged that Defendants "conspired to cause, permit, and allow a breach of contract to the detriment of [***13] the Plaintiff because of his religious beliefs; and that this breach of contract resulted in financial gain for Defendants." Complaint, P20. This is the type of allegation that the Supreme Court specifically prohibited in Bell Atlantic, stating that the federal counterpart to Rule 12(b)(5) "contemplate[s] the statement of circumstances, occurrences, and events in support of the claim presented."550 U.S. at , 127 S.Ct. at 1965 n.3 (quoting 5 Wright & Miller Federal Practice and Procedure: Civil 3d [0]§ 1202, at 94). Here, Sisney did no more than use the word "conspire," while failing to allege one fact suggesting a meeting of the minds, when an agreement was reached, or who was involved. Therefore, his complaint was without "sufficient specificity and factual support." Deck, 771 F2d at 1170.


IV

[*16] Sisney argues that the circuit court abused its discretion by failing to give him an opportunity to amend his complaint in order to cure any pleading deficiencies. A circuit court's decision regarding amendment of the pleadings "will not be disturbed on appeal unless there is a clear abuse of discretion which results in prejudice[.]" In re T.A., 2003 SD 56, P38, 663 N.W.2d 225, 237. In this case, [***14] Sisney only generally raised the issue of amendment in a brief resisting dismissal. He did not file a motion, nor did he explain what new, specific factual allegations would have overcome the defects requiring dismissal. For these reasons, the circuit court did not abuse its discretion in declining to make, schedule, and grant (essentially sua sponte) a motion allowing amendment of the complaint.

[*17] We affirm the circuit court's dismissal of Sisney's complaint.

[*18] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.