from the District Court of Burleigh County, South Central
Judicial District, the Honorable Thomas J. Schneider, Judge.
J. Gaede plaintiff and appellant; on brief.
Matthew A. Sagsveen for defendant and appellee; on brief.
1] Dennis Gaede appeals from a judgment dismissing his
amended complaint against Leann Bertsch, Director of the
Department of Corrections and Rehabilitation, and from an
order denying his motion for relief from the judgment. We
2] In 2006, Gaede was convicted of murder and sentenced to
life imprisonment without the possibility of parole. This
Court affirmed his conviction and affirmed denials of his
applications for post-conviction relief. See
Gaede v. State, 2015 ND 160, 870 N.W.2d 26;
Gaede v. State, 2013 ND 41, 832 N.W.2d 334;
Gaede v. State, 2011 ND 162, 801 N.W.2d 707;
State v. Gaede, 2007 ND 125, 736 N.W.2d 418. He is
serving his sentence in the North Dakota State Penitentiary.
3] In November 2015, Gaede sued Bertsch, seeking declaratory
and injunctive relief. Gaede alleged Bertsch violated
N.D.C.C. § 23-06-03 by fraudulently claiming he will be
responsible for his funeral and burial expenses upon his
death. He claimed Cass County is responsible for his funeral
expenses under N.D.C.C. § 23-06-03, but Bertsch
automatically places 25 percent of his earned monies into a
release aid account and the funds are being held to pay for
his future funeral expenses. Gaede requested the court order
all money the Department is holding in his release aid
account be returned to him and grant a permanent injunction
preventing Bertsch from deducting any further amounts for
deposit in his release aid account for future funeral
expenses. In December 2015, Gaede amended his complaint to
sue Bertsch in both her official and personal capacities.
4] On December 31, 2015, Bertsch moved to dismiss the amended
complaint under N.D.R.Civ.P. 12(b)(6). She argued the amended
complaint failed to state a claim upon which relief can be
granted because injunctive relief cannot be granted against
her in her personal capacity and the Department has authority
to deduct and transfer an inmate's earned funds to a
release account under N.D.C.C. § 12-48-15.
5] On January 22, 2016, Gaede moved to amend the amended
complaint. He stated he made an error in the amended
complaint and incorrectly identified Bertsch in both her
personal and official capacities. On January 26, 2016, Gaede
filed a second amended complaint, suing Bertsch in her
official capacity. On January 27, 2016, Bertsch responded
stating she did not oppose Gaede's motion to amend his
complaint if the second amended complaint was his proposed
6] On January 27, 2016, the district court dismissed the
amended complaint with prejudice. Judgment was entered.
7] On May 16, 2016, Gaede moved for relief from the judgment
under N.D.R.Civ.P. 60(b)(1), (2), and (6). Gaede claimed he
was entitled to relief from the judgment because he did not
provide the court with a copy of his will showing his family
will be taking possession of his body upon his death, and
therefore the Department cannot charge him for funeral or
burial expenses. He also claimed he was denied due process
because he was not given an opportunity to argue the
Department's policies are unconstitutional and violate
the equal protection clause. The district court ...