United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-2096

___________

Douglas D. Webb, *

*

Appellant, *

*

v. *

* Appeal from the United

States

Lawrence County, South Dakota; *

Dist

rict

Cour

t

f o r

the

Charles Crotty, in his individual *

Dist

rict

o f

Sout

h

Dako

ta

capacity and official capacity as *

Lawrence County Sheriff, *

*

Appellees. *

___________

 Submitted: December 10, 1996

 Filed: May 14, 1998

___________

Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit

Judges.
The Honorable Richard H. Battey, Chief Judge, United States District Court 1

for the District of South Dakota. 

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___________

McMILLIAN, Circuit Judge.

Douglas D. Webb appeals from a final order entered in the District Court for the 1
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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 indifferent to his safety as a matter

of law (count I) and (2) dismissing his state negligence claim on the 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 civil

rights action under 28 U.S.C. § 1343. The district court also had supplemental

jurisdiction over the pendent state negligence claim under 28 U.S.C. § 1367. (In

addition, 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 timely

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 memorandum

opinion and order of the district court. Webb and an accomplice committed various

crimes in South Dakota and Wyoming. After Webb was apprehended, he spent several

months in jail in Wyoming, and in October 1993 he was transferred to the Lawrence

County jail to face the pending South Dakota charges. He was placed in maximum

security. At the time Webb was 19 years old, about 5’4” tall and weighed about 120

pounds. Defendants 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 minimum

security section was full. Initially, Webb shared a cell with another inmate. Then Webb

moved into a cell with Greg Wyman, another maximum security inmate.
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Apparently Webb’s first cellmate was leaving the jail and Webb did not want to share

a cell with incoming federal prisoners. Defendants knew that Wyman had been

convicted of sex offenses, specifically, rape and sexual contact with a minor. 

At night the maximum security cells are locked down. During the day the inmates

can move around in the commons area. There is an emergency alarm button located in

the commons area, but the alarm is not accessible when the cells are locked down at

night. There is also a security surveillance 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 afraid

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 sexually

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 discovering the note,

the jailers moved Webb out of the cell. 

In December 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 by

failing to protect him from inmate violence in violation of the Eighth Amendment (count

I). He alleged defendants transferred him to Wyman’s cell even though they knew

Wyman was a sexual predator, failed to properly supervise the cell block, failed to

develop adequate protection or policies to minimize or eliminate inmate sexual assaults,

failed to stop double-celling inmates, and failed to adequately classify and segregate
The 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. 

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inmates. In his pendent state tort claim, Webb alleged essentially the same acts and

2

omissions as those alleged in his constitutional claim. He specifically alleged that

defendants failed to adequately protect him from inmate sexual assault, despite his

obvious vulnerability to such assault because of his youth, physical size, and status as

a new admittee to the jail. 

Defendants filed a motion for summary judgment on count I and a motion to

dismiss count II for failure to state a claim. The district court granted summary judgment

in favor of defendants on the constitutional claim (count I) because Webb failed to

present any evidence that defendants had reason to suspect that inmates in the jail faced

a substantial risk of sexual assault 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 notice of excessive risk of serious harm in absence

of evidence or allegations that inmate rape was common occurrence in this jail). The

district court also dismissed the state negligence claim (count II) because defendants

were protected by sovereign immunity. Id. at 967. The district court held that the

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 state

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.
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EIGHTH AMENDMENT CLAIM

Webb first argues 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

there was circumstantial evidence of a substantial risk of serious harm because

defendants knew that Wyman was a sexual predator who obviously posed a substantial

risk of serious harm especially to young and physically slight inmates. Webb argues

defendants disregarded that obvious risk and thus failed to protect him from inmate

assault. We disagree. 

We review the grant of summary judgment de novo. The question before the

district court, and this court on appeal, is whether the record, when viewed in the light

most favorable to the non-moving party, shows that there is no genuine issue as to any

material fact 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 identifying “those portions

of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,

together 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)

(quoting Fed. R. Civ. P. 56(c)). Once the moving party has met this burden, the

non-moving party cannot simply rest on mere denials or allegations in the pleadings;

rather, the non-movant “must set forth specific facts showing that there is 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

motion for summary judgment, the non-movant cannot simply create a factual dispute;

rather, there must be a genuine dispute over those facts that could actually affect the

outcome of the lawsuit. 

Webb’s constitutional claim is based on an alleged violation of his Eighth

Amendment rights.
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The Eighth Amendment to the United States Constitution

proscribes the infliction of “cruel and unusual punishments.” The

Supreme Court counsels that this amendment imposes upon prison

officials the duty to “provide humane conditions of confinement.” That

duty, among other things, requires those officials to take reasonable

measures to “protect prisoners from violence at the hands of other

prisoners.” The Eighth Amendment imposes this duty because being

subjected to violent assaults is not “part of the penalty that criminal

offenders pay for their offenses.” 

In order to prevail on an Eighth Amendment failure-to-protect

claim, [an inmate] must make two showings. First, [the inmate] must

demonstrate 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 disregards an excessive risk

to inmate health or safety; the official must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm

exists, and [the official] must also draw the inference.” This subjective

requirement is necessary because “only the unnecessary and wanton

infliction of pain implicates the Eighth Amendment.” 

Jensen v. Clarke, 73 F.3d 808, 810 (8th Cir. 1996) (citing Farmer v. Brennan, 511 U.S.

825 (1994); 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 of

material fact under Farmer v. Brennan’s subjective knowledge standard. There was no

evidence that defendants actually knew that Wyman posed a substantial risk of harm

to Webb. Although defendants knew that, in general, inmate rape and assault is

pervasive in this nation’s prison system, there was no evidence or allegations that

inmate rape is a common occurrence in this particular jail. Although defendants knew

that Wyman was a sexual offender, there was no evidence that Wyman had assaulted
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any other inmates or caused any problems while incarcerated. Defendants also knew

that Webb had requested Wyman as a cellmate. Defendants were not aware of

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 was insufficient

to satisfy the lesser objective knowledge standard this circuit applied 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. Brennan case that a single episode of violence, without

warning or suspicion, is insufficient to establish a pervasive risk of harm, particularly

when plaintiff views attack as an isolated incident). Even assuming for purposes of

analysis that the risk of sexual assault faced by young, physically slight inmates like

Webb was obvious, and thus sufficient to put defendants on notice of its existence,

“Farmer [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 state negligence claim

(count II) for failure 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 relief.” The issue is whether, taking all well-pleaded factual allegations in the

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 preliminary matter, defendants argue the waiver of sovereign immunity

issue has not been preserved for appellate review. However, Webb raised the issue in
S.D. Codified Laws § 3-21-8 (Michie 1994) provides: “No person, political

3

subdivision or the state 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

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 liable . . . for any injury caused by or resulting from

. . . (4) a prisoner to any other prisoner; or (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 state

immunity by statute or, where permitted, by any officer or agent of the state may

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 public

liability insurance to the extent and for the purposes considered expedient by the

commissioner for the purpose of insuring the liability of the state, its officers, agents

or employees.” 

S.D. Codified Laws § 21-32-16 (Michie 1987) provides: 

To the extent such liability insurance is purchased pursuant to

§ 21-32-15 and to the extent coverage is afforded thereunder, the state

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the district court in his brief in response to defendants’ motion for judgment on the

pleadings on count II. Appellant’s Appendix at 41-42. 

Defendants argued 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 3-21-10

(Michie 1994). Webb argued that defendants waived sovereign immunity by

3

purchasing liability insurance, citing S.D. Codified Laws §§ 21–32–15, 21-32-16

(Michie 1987). The district court held the fact that the county had purchased liability 4
shall be deemed to have waived the common law doctrine of sovereign

immunity and consented to suit in the same manner that any other party

may be sued.

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insurance did not operate as a waiver of sovereign immunity because S.D. Codified

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 Co., 437 N.W.2d 190,

193 (S.D. 1989) (Siefkes) (holding county’s purchase of liability insurance did not

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 failed to state a claim as a matter of law because S.D. Codified Laws

§ 3-21-9 provided defendants with a complete defense to his state negligence claim. 

In Siefkes the principal controversy involved the record title to an alfalfa field,

specifically the existence of a right of way easement over either or both the east and

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

the easement which was not shown by any entry in the abstract of title prepared and

certified by the title company. The title company then brought a third party action

against the county register of deeds seeking indemnity for negligent indexing. The state

trial court directed the owner of the west part (Herzog) be joined as a real party in

interest. The title company filed a third party action against Herzog. Siefkes then

amended his complaint to seek a declaratory judgment that the west easement existed

and the 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 register of deeds alleging that

the west easement was also not indexed.
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After reviewing in detail the various property transfers, the court identified two

distinct actions for negligence against the title company-- Siefkes’s claim involving the

failure to properly abstract the reciprocal easement from Roger to Gary Stenzel

showing the existence of the east easement and Herzog’s claim involving the failure to

properly abstract the Stenzels-Siefkes deed so as to show the existence of the west

easement. The state trial court found that the doctrine of merger had eliminated the east

easement but that the west easement was valid. On appeal, the state supreme court

affirmed the state trial court’s decision on the existence or non-existence of the

easements. 

The court then examined the question which is at issue in the present case, that

is, whether the county had waived sovereign immunity by purchasing liability

insurance. Sovereign immunity applies to political subdivisions of the state, such as

counties, townships and school districts. The title company argued that the county,

acting as an agent of the state, waived sovereign immunity by purchasing liability

insurance 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, its

officers, agents, and employees; § 21-32-16 provides that to the extent that such

liability insurance is purchased, the state shall be deemed to have waived sovereign

immunity. The court noted that it had narrowly construed provisions waiving sovereign

immunity and held that the fact that the county had purchased liability insurance did not

operate to waive sovereign immunity under provisions deeming the state to have

waived sovereign immunity by purchasing liability insurance. 437 N.W.2d at 193,

citing Holland v. Yankton School District No. 63-3, 375 N.W.2d 199, 199-200 (S.D.

1985) (holding that although school districts are state agencies, the state by purchasing

liability coverage for its officers, agents and employees did not waive sovereign

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 risk

sharing pool or insurance coverage. To the extent that any public

entity, other than the state, participates in a risk sharing pool or purchases

liability insurance and to the extent that coverage is afforded thereunder,

the public entity shall be deemed to have waived the common law

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 waiver

contained in this section and §§ 21-32A-2 and 21-32A-3 is subject to the

provisions of § 3–22–17. 

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

Affirmative defense. Except insofar as a public entity participates in a

risk sharing pool or insurance is purchased pursuant to § 21-32A-1, any

employee, officer or agent of the public entity, while acting within the

scope of his employment or agency, whether such acts are ministerial or

discretionary, is immune from suit or liability for damages brought against

him in either his individual or official capacity. The immunity recognized

herein may be raised by way of affirmative defense. 

21-32A-3. Immunity of public entities-- Affirmative defense.

Except insofar as a public entity participates in a risk sharing pool or

insurance is purchased pursuant to § 21-32A-1, any public entity is

immune from liability for damages whether the function in which it is

involved is governmental or proprietary. The immunity recognized herein

may be raised by way of affirmative defense. 

Section 3-22-17 (Michie 1994) provides in part:

Nothing 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 state

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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 5
Constitution, statute, judicial opinion, ordinance, resolution or tort claims

act except as provided in § 3-22-10 [which refers to payment of claims

from the fund] which may be construed only to extend sovereign

immunity to the maximum extent allowed under the state or federal

constitutions. 

S.D. Codified Laws ch. 3-22, enacted in 1986, established the public entity pool

for liability. The state supreme court has presumed that the legislature established the

fund as a substitute for traditional liability insurance. See Kyllo 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 and

conditions on the operation of sovereign immunity, but held that the state’s

participation in a risk sharing pool did not waive sovereign immunity because plain

language of statute required purchase of traditional liability insurance, not

self-insurance through risk sharing pool). 

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entity, other than the state, but did not apply it because the provision went into effect

on July 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 waiver provision because it did not go into

effect until after accident at issue and has no retroactive effect). Counties are included

in the statutory definition of the term “public entities.” S.D. Codified Laws

§ 3-22-2(12) (Michie 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 the

present case. 

Brown v. Egan Consolidated School District No. 50-2, 449 N.W.2d 259, 262

(S.D. 1989) (Brown), shows how § 21-32A-1 operates. That case involved an accident

that occurred in January 1988 between the plaintiff (Brown) and a school bus owned

by the school district and operated by another school district employee. (As noted

above, § 21-32A-1 became effective July 1, 1986.) The school district had purchased

liability insurance. 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
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judgment, claiming that another statute, § 13-29-1, created an independent statutory

basis for sovereign immunity that had not been waived by § 21-32A-1. The state trial

court reconciled the two provisions by holding that sovereign immunity still existed

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

immunity but argued that it did not waive what it called the “independent statutory

immunity” for operation of school buses contained in § 13-29-1, which provided in

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

within or without the district or for transportation to and from athletic,

musical, speech, and other interscholastic contests in which participation

is authorized by the school board. If the use of a school bus is 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 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. 

Section 49-28-2(1) excludes from PUC regulation motor vehicles used for

transportation to and from schools or interscholastic activities or when use is rented or

granted to 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 the

exemption of liability language did not apply to the school district’s use of buses to
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transport its own students to and from school or interscholastic contests, but instead

only to renting or granting use of the buses to nonprofit organizations for their

purposes. 449 N.W.2d at 261. The court noted that § 49-28-2(1) limited the area in

which a bus can be used under the grant and further required that the organization to

which use is granted furnish a fully qualified driver and insurance coverage to and no

less than the limits the school district 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 statutory

sovereign immunity argument that there are three independent bases for sovereign

immunity, with individual statutes such as § 13-29-1 composing the third leg of the

triad, that must be specially waived by statute, because it ignored the history of

sovereign immunity. Id. at 262 (the other two legs being common law and the state

constitution). The court explained that “[t]he immunity language of SDCL 13–29–1

did nothing more than reiterate the common law concept of sovereign immunity

embodied in the South Dakota Constitution, art. III, § 27 [,which provides that the

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 [the school district].” Id., citing Celia Miner, Comment, An Analysis of South

Dakota’s Sovereign Immunity Law: Governmental v. Official Immunity, 28 S.D. L.

Rev. 317, 321 (1983) (Comment) (noting case law recognizes “dual common and

constitutional law basis” for sovereign immunity); see Kyllo v. Panzer, 535 N.W.2d

896, 898-900 (S.D. 1995) (reviewing history of personal liability of public employees

under sovereign immunity scheme). The court then reviewed the history of sovereign

immunity as applied to school districts:
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For many years, this court held unequivocally that school districts

were immune from tort actions because they are state agencies wielding

a distributive portion of the sovereign power of the state. . . . After the

passage of SDCL 21-32-15 in 1981, it appeared that school districts had

waived sovereign immunity if the commissioner of administration

purchased liability insurance. But in Holland v. Yankton School Dist.

63-3, 375 N.W.2d 199 (S.D. 1985), a case where school district

employees spilled hot soup on a student, we held that school districts

were not one of the state agencies that was included in the liability

coverage purchased by the commissioner of administration and upheld

summary judgment in the case 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.” SDCL

3-21-1(1) defines public entities. . . . [as] the state of South Dakota, all its

branches and agencies, boards and commissions. . . . [and] also includes

all public entities established by law exercising any part of the sovereign

power 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) (Michie

Supp. 1997)). The court held the school district, a public entity, had purchased liability

insurance and so had waived its sovereign immunity to the limit of its insurance

coverage. Id. 

The present case is similar to Brown except that the public entity is a county

instead of a school district. The distinction noted in Siefkes between the purchase of

insurance by the state or by the county is not relevant in the present case because

§ 21-32A applies. Here, the county has either participated in a risk sharing pool or
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purchased liability insurance coverage. Appellant’s Appendix at 20 (Order for Form

35) (identifying insurance carrier as South Dakota Public Assistance Alliance). Thus,

pursuant to S.D. Codified Laws §§ 21-32A-1, -2, the county waived sovereign

immunity, 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 specially) (holding county waived sovereign immunity to

extent liability insurance coverage exists). 

However, because we agree with the district court that S.D.Codified Laws

§ 3-21-9 provided defendants with a complete defense to Webb’s state negligence

claim, we affirm 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] political

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 . . . jail.” Although we have found no definitive construction of this particular

statute by the South Dakota courts, case law sometimes refers to this defense as

“statutory 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 or

employees involved in investigation of child abuse from negligence liability); see also

Martinez v. California, 444 U.S. 277, 281-82 (1980) (holding state statute which

granted “absolute immunity” 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 arbitrary or irrational); Davis v. Fulton County,

90 F.3d 1346, 1354 (8th Cir. 1996) (holding “statutory immunity” per state statute

protected sheriff’s department employees from tort liability for claims of negligence

brought against them in their official or individual capacity).
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“Statutory immunity” is related to sovereign immunity or at least to the concept

of “official” immunity. See Comment, 28 S.D. L. Rev. at 318, 324-33 (distinguishing

sovereign immunity meaning “governmental” immunity of state and political

subdivisions from “official” immunity afforded public employees sued in representative

capacity or for discretionary acts). The terms are confusing. Nonetheless, we do not

think the South Dakota Supreme Court would hold that the application of “statutory

immunity” in the present case is necessarily inconsistent with Brown’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 overlapping

insurance coverage. Next, because the court in Brown construed the statute to preclude

any possible stacking of liability coverage and concluded that the “liability aspect” of

the statute was inapplicable, it did not have to construe the “liability aspect” of the

statute. 449 N.W.2d at 261 (§ 13-29-1 provided that “[i]f the use of a school bus is

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 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”). It is precisely the “liability

aspect” of the statute that is at issue in the present case, that is, whether the statute

grants immunity from civil liability or provides a complete defense. Even though

§ 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

Martinez v. California, 444 U.S. at 280-82 (similar liability language was held to

provide a complete defense to state tort claims). 

Finally, construing § 3-21-9 to provide a complete defense to liability for

negligence in making 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
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§§ 21-32-17, 21-32A-2 unconstitutional in violation of open courts provision so far as

they extend sovereign immunity to state employees performing ministerial as opposed

to discretionary functions; two cases involved ministerial act of operation of motor

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 States Bureau of Prisons, No. 97-3410, 1998 WL 154458, at *2 (8th Cir.

Apr. 6, 1998) (noting discretionary function exception to waiver of sovereign immunity

under the Federal Tort Claims Act). “State employees are cloaked in sovereign

immunity when performing discretionary acts because ‘such discretionary acts

participate in the state’s sovereign policy-making power.’” Kyllo v. Panzer, 535

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 make

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 by

any fear of tort liability); B.W. v. Meade County, 534 N.W.2d at 597 (noting immunity

is critical to state’s public policy of protecting reporting and investigation of child

abuse without fear of reprisal). Webb does not claim that defendants acted

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 statutory immunity defense applies only

to defeat a tort claim arising under state law. 

Accordingly, we affirm the judgment of the district court.
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A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.