LeRoy K. Wheeler, Plaintiff and Appellant
Governor Doug Burgum, Defendant and Appellee
from the District Court of Burleigh County, South Central
Judicial District, the Honorable Cynthia Feland, Judge.
K. Wheeler (on brief), self-represented, Bismarck, N.D.,
plaintiff and appellant.
J. Svihovec (on brief), Assistant Attorney General, Bismarck,
N.D., for defendant and appellee.
1] LeRoy Wheeler appeals a district court judgment granting
Governor Doug Burgum's motion to dismiss and denying
Wheeler's motion to appoint counsel. We affirm.
2] Wheeler, an inmate at the North Dakota State Penitentiary
("NDSP"), filed a complaint alleging civil rights
violations under 42 U.S.C. § 1983 by Governor Burgum in
both his official capacity and his personal capacity. The
complaint alleges that Governor Burgum failed to supervise
and govern officials and staff at the NDSP. Wheeler claims
that NDSP officials and staff interfered with his mail,
discriminated against him on the basis of race, denied him
access to the courts, prevented him from challenging the
conditions of his confinement, and retaliated against him for
exercising his rights. Wheeler sent Governor Burgum two
letters commenting on the conduct of these individuals.
Governor Burgum did not respond to the letters. Wheeler
sought injunctive relief against Governor Burgum in his
official capacity for failing to supervise the actions of
officials and staff at the NDSP. Wheeler also sought punitive
damages for Governor Burgum's failure to respond to his
letters or otherwise investigate the issues described in his
letters. Additionally, Wheeler moved for appointed counsel.
3] Governor Burgum moved to dismiss the complaint under
N.D.R.Civ.P. 12(b)(6) and opposed Wheeler's motion to
appoint counsel. The district court granted Governor
Burgum's motion to dismiss and denied Wheeler's
motion for appointment of counsel.
4] Wheeler argues the district court erred by granting
Governor Burgum's motion to dismiss under N.D.R.Civ.P.
12(b)(6) for failure to state a claim upon which relief could
be granted. "This Court reviews a district court's
decision granting a motion to dismiss under N.D.R.Civ.P.
12(b)(6) de novo." Nandan, LLP v. City of
Fargo, 2015 ND 37, ¶ 11, 858 N.W.2d 892. A motion
to dismiss a complaint under N.D.R.Civ.P. 12(b)(6) tests the
legal sufficiency of a claim, which we construe in the light
most favorable to the plaintiff and accept as true the
well-pleaded allegations in the complaint. Id. Under
N.D.R.Civ.P. 12(b)(6), a complaint should not be dismissed
unless it is impossible to prove a claim upon which relief
can be granted. Id.
5] Wheeler argues that Governor Burgum failed to supervise
individuals working for the NDSP, violating 42 U.S.C. §
1983. Section 1983 provides, in relevant part, that every
person who subjects any citizen "to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured...." 42 U.S.C. § 1983. The Department of
Corrections and Rehabilitation ("DOCR") "is
responsible to the governor." N.D.C.C. §
54-23.3-01. The governor appoints the director of the DOCR,
who serves at the pleasure of the governor. N.D.C.C. §
54-23.3-03. In addition to appointing the director, the
governor "[s]hall supervise the official conduct of all
executive and ministerial officers." N.D.C.C. §
54-07-01(1). The DOCR is "responsible for the direction
and general administrative supervision, guidance, and
planning of adult and juvenile correctional facilities and
programs within the state." N.D.C.C. § 54-23.3-01.
6] "Neither a state, an entity with Eleventh Amendment
immunity, nor state officials sued in their official capacity
are 'persons' under 42 U.S.C. § 1983, and
neither is subject to suit under the statute in federal or
state court." Perry Center, Inc. v. Heitkamp,
1998 ND 78, ¶ 37, 576 N.W.2d 505. A claim seeking only
injunctive relief may proceed against a state official in his
official capacity because official-capacity actions seeking
only prospective relief are not treated as actions against
the State. Livingood v. Meece, 477 N.W.2d 183, 190
(N.D. 1991). Wheeler argues that Governor Burgum should be
"enjoined to compel prison officials to respect and
enforce prisoners Constitutional rights in his official
capacity." However, Wheeler does not cite any authority
for his argument that would support § 1983 liability for
such a claim.
7] Although Governor Burgum is responsible for supervising
the DOCR director, who is responsible for the NDSP and its
staff, the Governor's supervisory responsibility over the
alleged actions Wheeler complains of is too indirect and
remote to support § 1983 liability. See Jackson v.
Nixon, 747 F.3d 537, 543 (8th Cir. 2014) (stating,
"While the doctrine of respondeat superior does not
apply to § 1983 cases, a supervisor may still be liable
under § 1983 if either his direct action or his
'failure to properly supervise and train the offending
employee' caused the constitutional violation at
issue."). Because Governor Burgum does not directly
supervise or train the officials or staff at the NDSP, he
cannot be held liable in his ...