*1 MORGAN, Justice. REIMAN,
Harold (Reiman), Harold Reiman appeal by Appellant, Peni- prisoner Dakota State South reverse the dismissal tentiary, seeks to sought recovery he his lawsuit wherein Warden, SOLEM, South Dakota Herman his typewriter the loss of Rist, Penitentiary; Asso Richard persons at by cell some Warden, Peni ciate reverse and time unknown. We present tentiary; Unknown Officers remand. Penitentiary, All In dividually Capaci and in Their Official the owner an Underwood Appellees. ties, Defendants kept which in his typewriter Model riot, cell. As the result of No. 13919. subjected disciplinary and others were Dakota.
Supreme Court placed Reiman was actions. Adjustment later Center 23, 1983. on Briefs March Considered pris- hospital. transferred to a Pursuant 6, July Decided procedures, on rules Rehearing Sept. 7, 1983. Denied else- safekeeping was removed for cell Presumably, where. event, upon In
made at time. prison population, general return to the except were belongings returned attempted to typewriter. regu- through its whereabouts ascertain the extent that he twice lar channels to thwart- grievances. filed His efforts were action in the circuit ed and filed this County to recover the court of Minnehaha compensatory or its value and machine alleges damages. complaint punitive of their performance Solem, Warden, and by duties Herman Rist, Warden, pen- Richard Associate unknown itentiary by Officials). Ap- (Penitentiary the Peni- on behalf of pearance was made attorney tentiary assistant 1-11-1, Eventually, -4. general. SDCL served and Officials’ counsel dismiss, filed an answer failed to alleging complaint that Reiman’s relief a cause of action granted and affirma- requested could be request to answer tively pled failure immunity as a clarification bar to relief. Reiman, se. pro
Harold The trial court dismissed the Pierre, and Rist Gen., prejudice against for with as Dale, Atty. Asst. Richard prejudice Meier- dismissed it without Mark V. appellees; defendants and Gen., Pierre, Officials. Atty. unknown henry, brief.
805
would
Reiman
frame the issues in this Arndt v.
Trucking,
Hannum
(S.D.1982);
680
appeal
Birhanzel,
context of
of his
Merrill v.
310
violations
(S.D.1981). Rather,
due
N.W.2d 522
em-
right
process
to
these
under the Fifth and
ployees are sued due to their employment
Fourteenth Amendments
to the United
positions.
anyone
If
else were
employed
VI,
States Constitution and art.
1 and 2
§§
these positions, they would
sued
have been
of the
Dakota
Constitution. We do
they
rather than
and Rist.
Solem
Since
are
not
them rising
see
to
proportion.
that
capacities,
sued in their official
and
The first issue that we
is wheth
perceive
However,
Rist are immune from suit.1
er the trial court
dismissing
erred in
the
discuss,
the
we will
reasons
hereinafter
we
complaint against Solem and Rist because
hold that the
court was
premature
of the doctrine of sovereign immunity.
order
entering an
of dismissal.
recently
This court
discussed
dismissed the complaint,
munity
National Bank of
Dakota
stating Reiman has failed to name those
v.
325
N.W.2d
and
allegedly
who
took his typewriter,
there-
Wilson,
v.
Kruger
(S.D.
fore,
cannot maintain his action
“[he]
There,
1982).
this court
stated the
against the named defendants.”
In exam-
step test” as to immunity:
(1) whether the
dismissal,
ining
propriety
the
of this
we
interest;
(2)
State was the real party in
Officials,
note that Penitentiary
appearing
the
employee
whether
was sued in
offi
through an assistant
attorney general
personal capacity;
(3)
cial or
whether
and
noted,
previously
first moved the
to
was exercising
discretionary
to make his
more
Reiman
or ministerial function.
(1)
certain
regards:
definite and
in these
these
Applying
rules to the suit
type-
name the individuals who took the
warden,
warden
associate
we find writer;
(2)
was
property
state
date the
step,
judgment
that under
since a
taken;
rule,
(3)
pursuant
to what
for Reiman would not subject the State to
regulation
practice of
or
liability,
party
not the real
was the
taken.2 Pursuant
to this
Co.,
here.
interest
Inc. motion,
the trial court
entered its
Sommer,
requiring a more definite statement within
However, under the
step, reviewing
second
days
ten
service of the
There-
after
order.
“whether the
an offi-
employee was sued in
after,
made
timely
service of
personal capacity,”
cial or
Reiman’s com-
“answer
a more definite statement” in
not
plaint
allege personal
does
responded
that he
not know
part
(2)
on
associate
warden or
to
because he was
answers
records,
supra;
specif-
not there
that the
warden.
Having
prong
which,
any,
determined
1.
under the second
to ascertain
named Defendants
if
the test that Solem and Rist
from
are immune
at the South
of the officers
Penitentiary
suit,
prong
do not reach the
third
address-
alleged
knowledge
have
discretionary
ing
or ministerial function.
taking
property,
of Plaintiffs
it is
name those
officers whom
Penitentiary
more defi-
Officials’ motion for
alleged
were involved in the
loss of
believes
requests
nite statement
lowing:
from Reiman the fol-
prop-
typewriter, the date
on which such
taken,
erty
allegedly
pursuant
to
was
of his
furnish more definite statement
[T]o
rule, regulation,
practice
what
or
involving
typewrit-
alleged
claim
loss of
proper-
said
following respects
particulars:
er in
alleged
ty
to
from
was
have been removed
designation
paragraph
In his
and in
his cell.
Complaint,
IV of Plaintiffs
Plaintiff fails to
ground
is made
This Motion
allegedly
specify those individuals who
took
Complaint
vague
am-
is so
or
the Plaintiffs
personal property,
specify
nor does he
biguous that
the named Defendants cannot
allegedly
date the
what
taken
required
reasonably
response
be
to frame a
rule, regulation
pursuant
and
practice
to what
papers
plead-
based on the
thereto
ings
Peniten-
the South Dakota State
tiary
alleged
action.
said
have been
his cell.
In order
motion,
signed
list
the offi-
ically
requested
documents
inventory,
show
cer who took
would
opportunity
properly
amend
give
inquiry (3),
those items. As for
name
pleadings
officers whose
responded
knowledge,
name comes to his
then
their own rules
were well aware of
reconsider the motion for dismissal.
regulations.
and remand.
We reverse
*3
responded,
At the same time that
order for
proposed
he served a motion and
HENDERSON,
WOLLMAN, DUNN and
documents, specifically re-
production of
JJ., concur.
card, the
questing
C.J.,
FOSHEIM,
in result.
concurs
when the
inventory
prepared
card
cell,
FOSHEIM,
(concurring
written
any
from his
Chief Justice
rules,
to re-
practices
result).
used
regulations
he was
move a
when
prisoner’s
While I
with the result reached
concur
prison popula-
the general
removed from
question
I
use of
so-called
majority,
card,
least, appears
at
tion. The
sovereign immunity.
of
step
test”
to be
for Reiman
particularly
set
effectively
test
our
departs
responsible
the unknown
identify
confirmed
sovereign immunity position
tled
removing
for
The trial court
property.
Inc. v. Som
Company,
ruling
failed to make
on this motion
any
mer,
(S.D.1980),
and Merrill
granted Penitentiary
but
Offi-
subsequently
(S.D.1981),
Birhanzel,
Accordingly, this all named
order of dismissal court with
herein remand to the trial We instruct
instructions. to produce authorities