## United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 96-2096

___________ Douglas D. Webb, *
* Appellant, *
*
v. *
* Appeal from the Unite d States Lawrence County, South Dakota; * Dis t ric t Cou r t f o r the Charles Crotty, in his individual * Dis t ric t o f Sou t h Dak o ta capacity and official capacity as * Lawrence County Sheriff, *
* Appellees. *

___________ Submitted: December 10, 1996 Filed: May 14, 1998

___________ Befor e McMILLIAN, JOHN R. GIBSON and MAGILL, Circui t Judges.The Honorable Richard H. Battey, Chief Judge, United States District Court 1 for the District of South Dakota.

-2- ___________ McMILLIAN, Circuit Judge.
Douglas D. Webb appeals from a final order entered i n the District Court for the 1-3-

District of South Dakota granting summary judgment in favor of defendants Lawrence County, Charles Crotty, the sheriff of Lawrence County, and John Doe and Jim Doe, employees of the sheriff’s department (collectively defendants), on his 42 U .S.C. § 1983 prisoner civil rights claim alleging an Eighth Amendment violation and dismissing his pendent state negligence claim

. Webb v. Lawrence County , 950 F. Supp. 960 (D.S.D. 1996) ( memorandum opinion and order). For reversal, Webb argues the district court erred in (1) holding defendants were not deliberately indi fferent to his safety as a matter of law (count I) and (2) dismissing his state negligence claim on t he ground of sovereign immunity(count II). For the reasons discussed below, we affirm the judgment of the district court.

The district court had subject matter jurisdiction of this 42 U.S.C. § 1983 civi l rights action under 28 U.S.C. § 1343. The district court also had supplementa l jur isdiction over the pendent state negligence claim under 28 U.S.C. § 1367. (I n addi tion, there was an independent jurisdictional basis-- diversity of citizenship under 28 U.S.C. § 1332-- for the state negligence claim.) The notice of appeal was timel y filed pursuant to Fed. R. App. P. 4(a) (1), and this court has appellate jurisdiction under 28 U.S.C. § 1291.

The following statement of facts is taken in large part from the memorandu m opinion a nd order of the district court. Webb and an accomplice committed variou s crimes in South Dakota and Wyoming. After Webb w as apprehended, he spent several months in jail in Wyoming, and in October 1993 he was transferred to the Lawrenc e County ja il to face the pending South Dakota charges. He was placed in maximu m security. At the time Webb was 19 years old, about 5’4” tall and weighed about 120 pounds. Def

endants did not place him in one of two minimum security sections in the jail because they wanted to separate him from his accomplice (the accomplice had been placed in one of two minimum security sections) and because the other minimu m security section was full. Initially, Webb shared a cell with another inm ate. Then Webb moved into a cell with Greg Wyman, another maximum security inmate.-4-

Apparently Webb’s first cellmate was leaving the jail and Webb did not want to share

a cel l with incoming federal prisoners. Defendants knew that Wyman had bee n convicted of sex offenses, specifically, rape and sexual contact with a minor.
At night the maximum security cells are locked down. During t he day the inmates can move around i n the commons area. There is an emergency alarm button located in the common s area, but the alarm is not accessible when the cells are locked down a t night. There is also a security surveillanc e camera in the maximum security section, but the camera does not provide a view inside the individual cells. Defendants stated that jailers checked the cells every 30 minutes; however, Webb stated that jailers only came into the cell block once a day.
Webb alleged that Wyman sexually assaulted him repeatedly. Webb did not tell anyone about the assaults because he believed Wyman had a knife and he was afrai d Wyman would retaliate against him. After four days, Webb managed to leave a note in the cell bars just before lockdown informing the jailers that he had been sexuall y assaulted. Webb did not notify the jailers sooner because he could not think of a way to give them the note without alerting Wyman. Thirty minutes after dis covering the note, the jailers moved Webb out of the cell.

In Dece mber 1994 Webb filed this civil rights action in federal district court against defendants alleging violations of his constitutional rights and state tort law. He alleged defendants demonstrated a reckless disregard for his constitutional rights b y failing to protect him from inmate violence i n violation of the Eighth Amendment (count I). He alleged defendants transferred him to Wyman’s cell even though they kne w Wy man was a sexual predator, failed to properly supervise the cell block, failed t o develop adequate protection or policies t o minimize or eliminate inmate sexual assaults, failed to stop double-celling inmates, and failed to adequately classify and segregateThe district court noted that there was also an independent jurisdictional basis 2 for count II-- diversity of citizenship-- and applied South Dakota law to the negligence claim. 950 F. Supp. at 966.

-5- inma tes. In his pendent state tort claim, Webb alleged essentially the same acts an d 2 omissions as those alleged in his constitutional claim. He specifically alleged tha t defendan ts failed to adequately protect him from inmate sexual assault, despite hi s obvious vulnerability to such assault because of his youth, physical size, and status as a new admittee to the jail.

Defendants f

iled a motion for summary judgment on count I and a motion t o dismiss count II for failure to state a claim. The district court granted summary judgment in fa vor of defendants on the constitutional claim (count I) because Webb failed t o present any evidence that defendants had reason to suspect that inmates in the jail faced a substantial risk of sexual a ssault from other inmates. 950 F. Supp. at 965 (noting that although inmate rape and assault is pervasive in nation’s prison system, pervasiveness is not sufficient to put defendants on n otice of excessive risk of serious harm in absence of evide nce or allegations that inmate rape was common occurrence in this jail). Th e di strict court also dismissed the state negligence claim (count II) because defendant s
were protected by sovereign immunity. Id. at 967. The district court held that th e county had not waived sovereign immunity by purchasing liability insurance. Id. The district court also held that federal law did not preempt the sovereign immunity defense and that sovereign immunity did not deny a judicial remedy in violation of the stat e constitution’s open courts provision, S.D. Const. art. VI, § 20, because Webb could file a 42 U.S.C. § 1983 civil rights action. 950 F. Supp. at 967. This appeal followed.-6-

EIGHTH AMENDMENT CLAIM
Webb first arg ues the district court erred in granting summary judgment in favor of defendants on his constitutional claim (count I) because there was no evidence that defendants were deliberately indifferent to his safety as a matter of law. He argues that ther e was circumstantial evidence of a substantial risk of serious harm becaus e defendants knew that Wyman was a sexual predator who obviously posed a substantial risk of se rious harm especially to young and physically slight inmates. Webb argue s defenda nts disregarded that obvious risk and thus failed to protect him from inmat e assault. We disagree.

We r eview the grant of summary judgment de novo. The question before th e dist rict court, and this court on appeal, is whether the record, when viewed in the light most f avorable to the non-moving party, shows that there is no genuine issue as to any material f act and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden of identi fying “those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file , tog ether with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986 ) (quo ting Fed. R. Civ. P. 56(c)). Once the moving party has met this burden, th e
non-m oving party cannot simply rest on mere denials or allegations in the pleadings ; rather, the non-movant “must set forth specific facts showing that there i s a genuine issue for trial.” Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett , 477 U .S. at 324. Although we view the facts in a light most favorable to the non-moving party, in order to defeat a
mo tion for summary judgment, the non-movant cannot simply create a factual dispute;

ra ther, there must be a genuine dispute over those facts that could actually affect th e outcome of the lawsuit.

Webb’ s constitutional claim is based on an alleged violation of his Eight h Amendment rights.-7- Th e Eighth Amendment to the United States Constitutio n pro scribes the infliction of “cruel and unusual punishments.” Th e Supreme Court counsels that this amendment imposes upon priso n officials the duty to “provide humane conditions of confinement.” That dut y, among other things, requires those officials to take reasonabl e measures to “protect prisoners from violence at the hands of othe r prisoners.” The Eighth Amendment imposes this duty because bein g subjected to violent assaults is not “part of the penalty that crimina l offenders pay for their offenses.”

In o rder to prevail on an Eighth Amendment failure-to-protec t claim, [an inmate] must make two showings. First, [the inmate] mus t dem onstrate that [he or she is] “incarcerated under conditions posing a substantial risk of serious harm.” The second requirement concerns the state of mind of the prison official who is being sued. It mandates that the [inmate] show that the official “knows of and disrega rds an excessive risk to inmate health or safety; the official must both be aware of facts fro m which the inference could be drawn that a subs tantial risk of serious harm exists, and [the official] must also draw the inference.” This subjective requir ement

is necessary because “only the unnecessary and wanto n infliction of pain implicates the Eighth Amendment.”

Jensen v. Clarke , 73 F.3d 808, 810 (8th Cir. 1996) (citing F armer v. Brennan , 511 U.S. 825 (199 4); other citations omitted); see also Erickson v. Holloway , 77 F.3d 1078 , 1080 (8th Cir. 1996).

We agree with the district court that Webb failed to create a genuine issue o f material fact under Farmer v. Brennan ’s subjective kn owledge standard. There was no evidence that defendants actually knew that Wyman posed a substantial risk of harm to Web b. Although defendants knew that, in general, inmate rape and assault i s per vasive in this nation’s prison system, there was no evidence or allegations tha t inmate rape is a common occurren ce in this particular jail. Although defendants knew that Wyman

was a sexual offender, there was no evidence that Wyman had assaulted-8-

any other i nmates or caused any problems while incarcerated. Defendants also knew that Webb had requested Wyman as a cellmate. Defendants were not aware o f Wyman’s threats or assaults because Webb did not report them; however, once they learned of the assaults, they immediately moved Webb out of the cell.
We also agree with the district court that defendants’ knowledge w as insufficient to satisfy the lesser objective knowledge standard this circuit appli ed in prisoner assault cases before Farmer v. Brennan

. Cf. Falls v. Nesbitt , 966 F.2d 375, 379 & n.5 (8th Cir. 1992) (noting in pre- Farmer v. Br ennancase that a single episode of violence, without warningor suspicion, is insufficient to establish a pervasive risk of harm, particularly whe n plaintiff views attack as an isolated incident). Even assuming for purposes o f analysis that the risk of sexual assault faced by young, physically slight inmates lik e Webb was obvious, and thus sufficient to put defendants on notice of its existence ,

“ Fa rmer [v. Brennan ] specifically rejects the idea that liability may be found when a risk is so ‘obvious that is should [have been] known.’” Jensen v. Clarke , 73 F.3d at 811, citing Farmer v. Brennan , 511 U.S. at 836.

STATE NEGLIGENCE CLAIM
Webb next argues the district court erred in dismissing his st ate negligence claim (count II) for fa

ilure to state a claim upon which relief could be granted. Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) motions must be read in light of Fed. R. Civ. P. 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to reli ef.” The issue is whether, taking all well-pleaded factual allegations in th e complaint to be true, the complaint states a claim that would entitle the plaintiff to relief against the defendants under some set of facts.

As a prel iminary matter, defendants argue the waiver of sovereign immunity issue has not been preserved for ap pellate review. However, Webb raised the issue inS. D. Codified Laws § 3-21-8 (Michie 1994) provides: “No person, politica l 3 subdivisionor the state is liable for failure to provide a prison, jail or penal o r co rrectional facility, or if such facility is provided, for failure to provide sufficien t equipment, personnel , programs, facilities or services in a prison or other correctional facility.”

S.D. Codified Laws § 3-21-9 (Michie 1994) provides in part that “[n]o person, political subdivision or the state is l iable . . . for any injury caused by or resulting from . . . (4) a prisoner to any other prisoner; o r (5) services or programs administered by or on behalf of the prison, jail or correctional facility.”

S. D. Codified Laws § 3-21-10 (Michie 1994) provides: “No waiver of stat e immunity by statute or, where permitted, by any officer or agent of the state ma y constitute or be interpreted as a waiver of the state’s immunity from lawsuits in federal court.”
S.D. Codified Laws § 21-32-15 (Michie 1987) provides: “The state of South

4 Dakota, through the commissioner of administration, may obtain and pay for publi c liability insurance to the extent and for the purposes considered expedient by th e commissioner

for the purpose of insuring the liability of the state, its officers, agent s or employees.” S.D. Codified Laws § 21-32-16 (Michie 1987) provides:

To the extent such liability insurance is purchased pursuant t o § 21-32 -15 and to the extent coverage is afforded thereunder, the stat e
-9- the dist rict court in his brief in response to defendants’ motion for judgment on th e pleadings on count II. Appellant’s Appendix at 41-42.

Defendants a

rgued in the district court that sovereign immunity barred Webb’s state negligence claim, citing S.D. Codified Laws §§ 3-21-8, 3-21-9 and 3-21-1 0 (Michie 1994). Webb argued that defendants waived sovereign immunity b y 3 pu rchasing liability insurance, citing S.D. Codified Laws §§ 21–32–15, 21-32-1 6 (Michie 1987). The district court held the fact that the county had purchased liability 4shall be deemed to have waived the common law doctrine of sovereig n

immunityand consented to suit in the same manner that any other party may be sued.

-10- insura nce did not operate as a waiver of sovereign immunity because S.D. Codifie d Laws §§ 21-32-15 and

21–32-16 applied only to the state and not to state agencies or counties. 950 F. Supp. at 967, citing Siefkes v. Watertown Title C o. , 437 N.W.2d 190, 193 (S.D. 1989) ( Siefkes ) (holding county’s purchase of liability insurance did no t operate as waiver of sovereign immunity). For the reasons discussed below, we hold Siefkes does not apply and that the county waived sovereign immunity by participating in a risk sharing pool or purchasing liability insurance. We agree with the district court that Webb fail ed to state a claim as a matter of law because S.D. Codified Law s § 3-21-9 provided defendants with a complete defense to his state negligence claim.

In S iefkes the principal controversy involved the record title to an alfalfa field, sp ecifically the existence of a right of way easement over either or both the east an d west parts of the field. In the first action the owner of the east part (Siefkes) sued the title company and its surety for damages, alleging that his property was encumbered by th e easement which was not shown by any entry in the abstract of title prepared an d

cer tified by the title company. The title company then brought a third party actio n against the county register of deeds seeking indemnity for negligent in dexing. The state trial court directed the owner of the west part (Herzog) be joined as a real party i n interes t. The title company filed a third party action against Herzog. Siefkes the n amended his compla

int to seek a declaratory judgment that the west easement existed andthe east easement did not. Herzog then filed a third party action against the title company for failure to include the west easement in the abstract of title prepared and certified by the title company and against the former owners of the west part. The title company also filed a third party action against the county reg ister of deeds alleging that the west easement was also not indexed.-11-

After reviewing in d etail the various property transfers, the court identified two distinct actions for negligence against the ti tle company-- Siefkes’s claim involving the fail ure to properly abstract the reciprocal easement from Roger to Gary Stenze l showing the existence of the east easeme nt and Herzog’s claim involving the failure to prope rly abstract the Stenzels-Siefkes deed so as to show the existence of the wes t easement. The state trial court found that the doctrine of merger had elimi nated the east

ease ment but that the west easement was valid. On appeal, the state supreme cour t affirmed the state trial court’s decision on the existence or non-existence of th e easements.

The court then e xamined the question which is at issue in the present case, that is, wheth er the county had waived sovereign immunity by purchasing liability insur ance. Sovereign immunity applies to political subdivisions of the state, such a s counties, townships and school districts. The title company argued that the county , acting a s an agent of the state, waived sovereign immunity by purchasing liability insura nce pursuant to S.D. Codified Laws §§ 21-32-15, -16. As noted in the margin, § 21 -32-15 provides that the state may obtain liability insurance for the state, it s officers , agents, and employees; § 21-32-16 provides that to the extent that suc h liabili ty insurance is purchased, the state shall be deemed to have waived sovereig n immunity. The court noted that it had narrowly construed provisions waiving sovereign immunity and held that the fact that the countyhad purchased liab ility insurance did not op erate to waive sovereign immunity under provisions deeming the state to hav e waived sovereign immunity by purchasing liability insurance. 437 N.W.2d at 193 , citing Hol land v. Yankton School District No. 63-3 , 375 N.W.2d 199, 199-200 (S.D. 1985) (holding that although school districts a re state agencies, the state by purchasing liab ility coverage for its officers, agents and employees did not waive sovereig n immunity on behalf of school districts), and Zens v. Chicago, Milwaukee, St. Paul & Pacific R.R. , 386 N.W.2d 475 (S.D. 1986) (holding township did not waive sovereign immunity by purchasing liability insurance).5S.D. Codified Laws ch. 21-32A (Michie 1987) provides: 5

21-32A-1. Waiver of sovereign immunity to extent of ris k sharing pool or insurance coverage . To the extent that any publi c entity, other than the state, participates in a risk sharing pool or purchases liability insuran ce and to the extent that coverage is afforded thereunder, the public entity shall be deemed to have waived the common la w doctrine of sovereign immunity and shall be deemed to have consented to suit in the same manner that any other party may be sued. The waive r contained in this section and §§ 21-32A-2 and 21-32A-3 is subject to the provisions of § 3–22–17.

21-32 A-2. Immunity of employees, officers or agents-

- Affi rmative defense. Except insofar as a public entity participates in a
r i sk sharing pool or insurance is purchased pursuant to § 21-32A-1, any employee, officer or agent of the public entity, while acting within th e scope of h is employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for da mages brought against him in either his individual or official c apacity. The immunity recognized herein may be raised by way of affirmative defense.

21-32A-3. Immunity of public entities-- Affirmative defense. Except i nsofar as a public entity participates in a risk sharing pool o r insuranc e is purchased pursuant to § 21-32A-1, any public entity i s imm une from liability for damages whether the function in which it i s involved is governmental or proprietary. The immu nity recognized herein may be raised by way of affirmative defense. Section 3-22-17 (Michie 1994) provides in part:

No thing in this chapter may be construed to be in conflict with or to expand the scope of governmental or sovereign immunity or any waiver of governmental or sovereign immunity contained in the stat e
-12- The court acknowledged in a footnote that the legislature had enacted S.D

. Codified Laws § 21-32A, covering the purchase of liability insurance by any public 5Constitution, statute, judicial opin ion, ordinance, resolution or tort claims

act ex cept as provided in § 3-22-10 [which refers to payment of claim s fromthe fund] which may be construed only to extend sovereig n immunit y to the maximum extent allowed under the state or federa l constitutions.
S.D. Codified Laws ch. 3-22, enacted in 1986, est ablished the public entity pool for liability. The state s upreme court has presumed that the legislature established the fund as a substitute for traditional liability insurance. See Ky llo v. Panzer , 535 N.W.2d 896, 900 (S.D. 1995) (reviewing history of sovereign immunity legislation following 1985 decision which upheld as constitutional legislation imposing limitations an d condit ions on the operation of sovereign immunity, but held that the state’ s par ticipation in a risk sharing pool did not waive sovereign immunity because plai n la nguage of statute required purchase of traditional liability insurance, no t self-insurance through risk sharing pool).

-13- ent ity , other than the state, but did not apply it because the provision went into effect

onJuly 1, 1986, well after all the property transfers occurred, and had no retroactive effect. 437 N.W.2d at 103 n.3; see Ritter v. Johnson , 465 N.W.2d 196, 198 n.3 (S.D. 1991) (refusing to reach constitutionality of w aiver provision because it did not go into effect until after accident at issue and has no retroactive effect). Counties are included in the s tatutory definition of the term “public entities.” S.D. Codified Law s § 3-22-2(12) (M ichie Supp. 1997). Unlike Siefkes , this provision was in effect at the time when Webb was assaulted by Wyman in jail and therefore does apply in th e present case.

Brown v. Egan Consolidated School District No. 50-2 , 449 N.W.2d 259, 26 2 (S.D. 1989) ( Brown ), shows how § 21-32A-1 operates. That case invol ved an accident that occurred in January 1988 between the plaintiff (Brown) and a school bus owned by the scho ol district and operated by another school district employee. (As note d above, § 21-32A-1 became effe ctive July 1, 1986.) The school district had purchased liability in surance. Brown suffered serious injuries and sued the school district to the extent of its insurance coverage. The school district court filed a motion for summary-14-

judgment, claiming that another statute, § 13-29-1, created an independent statutor y basis for sovereign immu nity that had not been waived by § 21-32A-1. The state trial court reconciled the two provisions by holding that sovereign immunity still existe d under § 13-29- 1 but had been waived under § 21-32A-1 to the limit of the liability insurance. On appeal, the school district argued there were three independent bases for sovereign immunity-- common law, the state constitution, and particular statutes. The school district court conceded that § 21 -32A-1 waived common law and constitutional immunitybut argued that it did not waive what it called the “independent statutory immu nity” for operation of school buses contained in § 13-29-1, which provided i n part:
The school board of any school district may acquire, own , operate, or hire buses for the transportation of students to and from its schools either from with in or without the district or for transportation to and from athletic , musical, speech, and oth er interscholastic contests in which participation is authorized by the school board. If the use o f a school bus is granted by the school board pursuant to subdivision (1) or (8) of § 49-28- 2 [excluding certain motor vehicles from th e definition of motor carriers for the purpose of regulation under the Public Utilities Commission (PUC)], the school district is not liable for suit or damages which may arise as the result of the use.

Se ction 49-28-2(1) excludes from PUC regulation motor vehicles used fo r transportation to and from schools or interscholastic activities or when use is rented or grantedto nonprofit organizations for transport of persons under 21 for community service. Section 49-28-2(8) exempts motor vehicles used by nonprofit organizations for transportation of senior citizens or handicapped persons.
The school district argued the exemption from liability applied to its use of buses for student transportation. The state supreme court disagreed, holding that th e exemption of liability language did not apply to the school district’s use of buses to-15-

transpo rt its own students to and from school or interscholastic contests, but instea d only to renting or granting use of the buses to nonprofit organizations for thei r purposes. 449 N.W.2d at 261. The court noted that § 49-28-2(1) limited the area in whicha bus can be used under the grant and further required that the organization to which u se is granted furnish a fully qualified driver and insurance coverage to and no less than the limits the school dis trict carried for the usual transportation in connection with school activities. Id. The court thus concluded that the effect of § 13-29-1 was “simply to prevent stacking liability coverages where the use of the bus is granted to the nonprofit organizations” and that the “liability aspect” of that section was simply inapplicable to the facts of the case. Id.

The court rejected, without further explanation, the school district’s statutor y
sovere ign immunity argument that there are three independent bases for sovereig n imm unity, with individual statutes such as § 13-29-1 composing the third leg of th e triad, that must be specially waived by statute, because it ignored the history o f sovereign im munity. Id. at 262 (the other two legs being common law and the stat e
con stitution). The court explained that “[t]he immunity language of SDCL 13–29– 1 did nothin g more than reiterate the common law concept of sovereign immunity embo diedin the South Dakota Constitution, art. III, § 27 [,which provides that th e legislature shall direct by law in what manner and in what courts suits may be brought against the state]. . . . It does not create the special variety of sovereign immunity urged by [th e school district].” Id., citing Celia Miner, Comment, An Analysis of Sout h Dakota’s Sovereign Immunity Law: Governmental v. Official Immunity , 28 S.D. L

. Rev. 31 7, 321 (1983) (Comment) (noting case law recognizes “dual common an d constituti onal law basis” for sovereign immunity); see Kyllo v. Panzer , 535 N.W.2 d 896, 898-900 (S.D. 199 5) (reviewing history of personal liability of public employees under sovereign i mmunity scheme). The court then reviewed the history of sovereign immunity as applied to school districts:-16- For many year s, this court held unequivocally that school districts
wereimmune from tort actions because they are state agencies wielding
a distributive portion of the sovereign power of the state. . . . After th e passage of SDCL 21 -32-15 in 1981, it appeared that school districts had waiv ed sovereign immunity if the commissioner of administratio n purchased liability insurance. But in Holland v. Yankton School Dist

. 63-3 , 375 N.W.2d 199 (S.D. 1985), a case where school distric t emp loyees spilled hot soup on a student, we held that school district s were not on e of the state agencies that was included in the liabilit y cover age purchased by the commissioner of administration and uphel d summary judgment in the c ase because sovereign immunity had not been waived. We surmise that the legislature sought to overcome this problem in 1986 by authorizing school districts to waive sovereign immunity under the rubric of “public entities.” SDCL ch. 3-21, enacted as Chapter 4 of the Session Laws of 1986, is entitled “Liability for Public Entities and Public Officials.” SDC L 3-21-1(1) defines public entities. . . . [as] the state of South Dakota, all its branches and ag encies, boards and commissions. . . . [and] also includes all public entities established by law exercising any part of the sovereign po wer of the state, including, but not limited to municipalities, counties, school districts . . . .

Id. (the public entity definition is now in S.D. Codified Laws § 3-22-2(12) (Michi e Supp. 1997)). The court held the school district, a public enti ty, had purchased liability insu rance and so had waived its sovereign immunity to the limit of its insuranc e coverage. Id.

The present c ase is similar to Brown except that the public entity is a count y inst ead of a school district. The distinction noted in Siefkes between the purchase of insuran ce by the state or by the county is not relevant in the present case becaus e § 21-32A applies. Here, the county has either participated in a risk sharing pool or-17-

purchased liability insurance coverage. Appellant’s Appendix at 20 (Order for Form 35) (identifying insura

nce carrier as South Dakota Public Assistance Alliance). Thus, pursuant to S.D. Codified Laws §§ 21-32A-1, -2, the county waived sovereig n i m munity, to the extent that coverage is afforded thereunder, and consented to suit in the same manner that any other party may be sued. See Bland v. Davison County , 566 N.W.2d 452, 461 n .9 (S.D. 1997) (noting county waived sovereign immunity defense by purchasing liability insurance pursuant to § 21-32A-1); id. , 507 N.W.2d 80, 82 (S.D. 1993) (Wuest, J., concurring spec ially) (holding county waived sovereign immunity to extent liability insurance coverage exists).

Howe ver, because we agree with the district court that S.D.Codified Law s § 3-21-9 provided defendants with a complete defense to Webb’s state negligenc e claim, we af

firm the district court’s decision that Webb failed to state a claim for that

reason. Section 3-21-9 provides in part that “[n]o person [or] politica l subdivision. . . is liable . . . for any injury caused by or resulting from . . . a prisoner to any other prisoner . . . or . . . services or programs administered by or on behalf of the . . . ja il.” Although we have found no definitive construction of this particula r statu te by the South Dakota courts, case law sometimes refers to this defense a s “statuto ry immunity.” See B.W. v. Meade County , 534 N.W.2d 595, 596-97 (S.D

. 1995) (holding “statutory immunity” per state statute protected public officials o r employees involved

in investigation of child abuse from negligence liability); see also Ma rtinez v. California , 444 U.S. 277, 281-82 (1980) (holding state statute whic h granted “absolute immunit y” from liability for any injury resulting from parole release decisions and thus provided public employees with complete defense to state tort claim was not unconstitutional unless wholly a rbitrary or irrational); Davis v. Fulton County , 90 F. 3d 1346, 1354 (8th Cir. 1996) (holding “statutory immunity” per state statut e protected sheriff’s department employees from tort liability for claims of negligenc e brought against them in their official or individual capacity).-18-

“Statutory immunity” is rela ted to sovereign immunity or at least to the concept of “official” immunity. S ee Comment, 28 S.D. L. Rev. at 318, 324-33 (distinguishing

so vereignimmunity meaning “governmental” immunity of state and politica l subdivisions from “official” immunity afforded public employees sued in representative capacity or

for discretionary acts). The terms are confusing. Nonetheless, we do not thinkth e South Dakota Supreme Court would hold that the application of “statutor y immunity” in the present case is necessarily inconsistent with B rown ’s rejection of “the special variety of [statutory] sovereign immunity urged by [the school district]” in that

case.
First, unlike Brown , the present case does not involve potentially overlappin g insurance coverage. Next, because the court in Brown construed the statu te to preclude any possible stacking of liability coverage and concluded that the “liability aspect” of the sta tute was inapplicable, it did not have to construe the “liability aspect” of th e stat ute. 449 N.W.2d at 261 (§ 13-29-1 provided that “[i]f the use of a school bus i s granted by the school board pursuant to subdivision (1) or (8) of § 49-28-2 [excluding certain motor vehicles from the definition of motor carriers for the purpo se of regulation under the Public Utilities Commission (PUC)], the school district is not liable for suit

or damages which may arise as the result of the use”). It is precisely the “liabilit y aspect” of the statute that is at issue in the present case, that is, whether the statut e grants immunity from civil liability or provides a complete defense . Even thoug h § 3-21-9 refers to liability (no person is liable for any injury) and § 26-8A-14 expressly refers to immunity (any person is immune from any liability), we think the result is the same-- § 3-21-9 provides defendants with a complete defense as a matter of law. See Marti nez v. California , 444 U.S. at 280-82 (similar liability language was held t o provide a complete defense to state tort claims).
Finally, construing § 3-21-9 to provide a complete defense to liability fo r negligence in mak

ing jail cell assignments does not conflict with recent South Dakota “official” immunity cases

. See, e.g., Kyllo v. Panzer , 535 N.W.2d at 901-03 (holding-19-

§§ 21-32-17, 21-32A-2 uncons titutional in violation of open courts provision so far as they extend sovereign im

munity to state employees performing ministerial as opposed to di scretionary functions; two cases involved ministerial act of operation of moto r vehicles by state employees); Ritter v. Johnson , 465 N.W.2d at 198-99 (case involved ministerial act of state employee’s ordering truck driver to weigh station); cf. Dykstra

v. United St ates Bureau of Prisons , No. 97-3410, 1998 WL 154458, at *2 (8th Cir

. Apr. 6, 1998) (noting discretionary function exception towaiver of sovereign immunity under the Federal Tort Claims Act). “State employees are cloaked in sovereig n imm unity when performing discretionary acts because ‘such discretionary act s par ticipate in the state’s sovereign policy-making power.’” Kyllo v. Panzer , 53 5 N.W.2d at 902, citing Ritter v. Johnson , 465 N.W.2d at 198. Immunity is critical to the state’s evident public policy of allowing those in charge of jails to mak e discretionary decisions about prison administration without fear of tort liability. See Martinez v. California , 444 U .S. at 283 n.6 (noting stated purpose of immunity statute is to allow parole officials to make determinations of release or parole unfettered b y any fear of tort liability); B.W. v. Meade County , 534 N.W.2d at 597 (noting immunity is c ritical to state’s public policy of protecting reporting and investigation of chil d abus e without fear of reprisal). Webb does not claim that defendants acte d intentionally, were not acting within the scope of their authority or performing county functions, or were performing merely ministerial acts.
We agree with the district court that the stat utory immunity defense applies only to defeat a tort claim arising under state law.
Accordingly, we affirm the judgment of the district court.-20-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHT H CIRCUIT.