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Full Opinion
#24683-rev & rem-SLZ
2008 SD 72
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
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.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
HONORABLE KATHLEEN K. CALDWELL
Judge
* * * *
CHARLES E. SISNEY
SD State Penitentiary
Sioux Falls, South Dakota Pro se plaintiff and appellant.
JEFFREY L. BRATKIEWICZ
MICHELE A. MUNSON of
Woods, Fuller, Shultz & Smith, P.C. Attorneys for defendants
Sioux Falls, South Dakota and appellees.
* * * *
CONSIDERED ON BRIEFS
ON MARCH 26, 2008
OPINION FILED 07/23/08
#24683
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 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[.]”
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[¶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 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.
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, ¶6, 695 NW2d 235, 239. “While a complaint attacked by a
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.
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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, 2008 SD 70, ¶7, __ NW2d __ (quoting
Bell Atlantic Corp. v. Twombly, __US__, 127 SCt 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, ¶7, __ NW2d at __ (quoting Bell Atlantic, __US at __, 127 US at 1965
n3) (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 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
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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 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, ¶13, 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
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party. But, before the third party can adopt the agreement
entered into and recover thereon, he must show clearly that it
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, ¶13, 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, ¶3. 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, ¶¶3, 4. At 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.
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#24683
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
circuit court’s analysis. 3
[¶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, ¶23, 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
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.
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‘the function performed by the employee.’” Casazza v. State, 2000 SD 120, ¶11, 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, ¶20, 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 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
4. For this reason, we need not address the ministerial/discretionary distinction
of sovereign immunity and SDCL 3-21-8 and 3-21-9.
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#24683
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, ¶7, 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, ¶9, 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 governing sovereign immunity.” Nelson, 2005 SD 109, ¶27, 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.
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