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USDC: 1983 - motion to dismiss under Twombly; several claims dismissed with prejudice

Philander Jenkins,
Civ. No. 06-3625 (RHK/AJB)
County of Hennepin, Minnesota, et al.,
Jill Clark, Jill Clark, P.A., Minneapolis, Minnesota, Jill M. Waite, Waite Law Office,
Golden Valley, Minnesota, for Plaintiff.
Toni A. Beitz, Hennepin County Attorneys Office, Minneapolis, Minnesota, for
Defendants County of Hennepin, Trent Jovanovich, Michael Cuscaden, and Tim Bush.
Thomas C. Vasaly, Minnesota Attorney Generals Office, St. Paul, Minnesota, for
Defendants Brian Blanch and Eric Knutson.
In this action, Plaintiff Philander Jenkins has sued Hennepin County, Minnesota (the
County); Trent Jovanovich, Michael Cuscaden, and Sergeant Tim Bush, detention deputies
who work at the Countys Adult Detention Center (ADC); and Brian Blanch and Eric
Knutson, two Special Agents who work for the Minnesota Bureau of Criminal
Apprehension (BCA), alleging various deprivations of his constitutional rights and related
1 The County and the detention deputies are collectively referred to herein as the County
Defendants. Special Agents Blanch and Knutson are collectively referred to herein as the State
2 Having reviewed the parties voluminous submissions, the Court concludes that oral argument
on Defendants Motions is unnecessary.
state-law claims.1 The County Defendants have moved to dismiss (or, in the alternative, for
summary judgment on) certain of Jenkinss claims; the State Defendants have moved to
dismiss Jenkinss constitutional claim and further assert that the Court should decline to
exercise supplemental jurisdiction over the lone state-law claim asserted against them. For
the reasons set forth below, the Court will grant both Motions.2
This action arises out of an alleged sexual assault that Jenkins suffered while an
inmate at the ADC. According to the Third Amended Complaint (TAC), on October 4,
2003, Jenkins got into a verbal altercation with Jovanovich and Cuscaden in his jail cell.
(TAC 10-11.) Jenkins then heard Jovanovich say that he was going to teach [Jenkins] a
lesson. (Id. 12.) Jovanovich and Cuscaden forced Jenkins onto his stomach on the cell
floor, and his pants were pulled down. (Id. 13.) He then felt something hard touching his
rectal area and attempting to penetrate him; he believed that the object was either
Jovanovichs or Cuscadens penis. (Id.) After Jenkins screamed for help, the deputies
stopped their assault. (Id. 15.)
Jenkins claims that he reported this assault, but that ADC staff ignored his complaint
and did not take him for medical treatment. (Id. 20.) Eventually, another inmate called
3 The investigation results were presented to the Washington County Attorney rather than the
Hennepin County Attorney due to a conflict of interest.
Jenkinss grandmother, who succeeded in having Jenkinss attorney visit him that night.
(Id. 22.) Jenkins explained what had happened and showed his attorney a blood-stained
tissue, which he pulled from his buttocks. (Id.) Jenkinss attorney then asked Bush to be
seen by a nurse. (Id. 23.) Two jail nurses examined Jenkins and sent him to the Hennepin
County Medical Center for a sexual-assault forensic examination. (Id. 24-25.) While
Jenkins was at the hospital, Bush ordered a shakedown of Jenkinss cell, which allegedly
resulted in the loss of evidence of the sexual assault, including the bloody tissue. (Id.
On October 9, 2003, the Hennepin County Sheriff requested that the BCA
commence an investigation into the alleged assault. (Id. 28.) According to Jenkins, the
subsequent BCA investigation was not neutral, but instead was slanted in favor of
Jovanovich, Cuscaden, and Bush. (Id. 31.) Ultimately, the BCA presented the results of
its biased investigation to the Washington County Attorney, who declined to prosecute
any of the ADC staff members. (Id. 35.)3 The BCA, however, recommended that Jenkins
be charged with submitting a false police report, because the slanted investigation
revealed evidence that Jenkins had fabricated the assault. (Id. 28-30.) Jenkins was so
charged by criminal complaint on March 29, 2004.
Jenkins stood trial for three weeks in August and September 2004. He alleges that
the BCA continued to engage in misconduct throughout the course of his case, including
withholding evidence from him and making false representations to the court. (Id. 36.5-
37.5.) Ultimately, he was acquitted of the charge against him. (Id. 38.)
On September 7, 2006, Jenkins commenced the instant action. Defendants moved
to dismiss, and Jenkins filed an Amended Complaint on December 28, 2006. After
additional motions to dismiss were filed, Jenkins amended his Complaint for a second time
(with leave of Court) on March 5, 2007. Once again, Defendants moved to dismiss, and
Jenkins filed the TAC (with leave of Court) on June 1, 2007; the TAC is the operative
Complaint before the Court. In the TAC, Jenkins asserts the following causes of action:
Count I violation of Jenkinss constitutional rights (including substantive due process,
equal protection, and First- and Fourth-Amendment guarantees); Count II assault; Count
III battery; and Count IV malicious prosecution.
Defendants now move to dismiss portions of the TAC.
For the last half-century, the standard to be applied by a federal court when ruling on
a motion to dismiss was well settled. That standard, set forth in Conley v. Gibson, 355 U.S.
41, 45-46 (1957), mandated that a motion to dismiss be denied unless it appear[ed] beyond
doubt that the plaintiff c[ould] prove no set of facts in support of his claim which would
entitle him to relief. Two months ago, however, the Supreme Court altered the legal
landscape for evaluating motions to dismiss.
In Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S. Ct. 1955 (2007), the Supreme
Court retired Conleys no set of facts language as an incomplete, negative gloss on an
accepted pleading standard: once a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations in the complaint. (emphasis
added). Id. at 1969. In order to adequately state a claim under Twombly, a plaintiff must
plead facts sufficient to raise a right to relief above the speculative level. Id. at 1965.
Stated differently, a complaint must include enough facts to state a claim to relief that is
plausible on its face. Id. at 1974. While Rule 8 of the Federal Rules of Civil Procedure
does not require the pleading of detailed factual allegations, a plaintiff nevertheless must
plead sufficient facts to provide the grounds of his entitle[ment] to relief, [which]
requires more than labels and conclusions, and [for which] a formulaic recitation of the
elements of a cause of action will not do. Id. at 1964-65 (citation omitted). Post-
Twombly, therefore, a complaint cannot simply le[ave] open the possibility that a plaintiff
might later establish some set of undisclosed facts to support recovery. Id. at 1968
(citation omitted). Rather, the facts set forth in the complaint must be sufficient to nudge
the[] claims across the line from conceivable to plausible. Id. at 1974.
Under Twombly, as under Conley, when a court reviews a motion to dismiss, the
complaint must be liberally construed, assuming the facts alleged therein as true and
drawing all reasonable inferences from those facts in the plaintiffs favor. Id. at 1964-65.
A complaint should not be dismissed simply because the court is doubtful that the plaintiff
will be able to prove all of the factual allegations contained therein. Id. Accordingly, a
well-pleaded complaint will survive a motion to dismiss even if it appears that a recovery
is very remote and unlikely. Id. at 1965 (citation omitted).
4 Because the Supreme Court decided Twombly while the instant Motions were being briefed,
the Court directed the parties to submit supplemental memoranda addressing Twomblys impact on the
present Motions.
It is through this newly focused lens that the Court must evaluate Defendants
At the outset, the Court notes that despite several rounds of briefing and the
opportunity at the behest of the Court to clarify the precise factual and legal bases for
the relief Jenkins seeks, the claims alleged in the TAC are, charitably speaking, extremely
unclear. Indeed, the contentions therein are vague, ambiguous, and, at times, contradictory
and nearly incomprehensible. Despite the lack of clarity in the TAC, the Court has
diligently endeavored to construe the claims therein liberally, as it must when deciding a
motion to dismiss.
I. The State Defendants
The State Defendants have been named only in Count I (constitutional claims under
42 U.S.C. 1983) and Count IV (malicious prosecution) of the TAC. They argue that (1)
Count I should be dismissed because it fails to state a viable claim against them and (2) the
Court should decline to exercise supplemental jurisdiction over Count IV. The Court
agrees with both arguments.
A. Count I fails.
In his constitutional claim, Jenkins asserts that the State Defendants committed two
5 Jenkins also alleges that he was subjected to excessive force and that his substantive-dueprocess
rights were violated. (TAC 42(a)-(b).) Although it appears from the TAC that Jenkins also
asserts these claims against the State Defendants, Jenkins clarified in a supplemental memorandum that
he is asserting those claims only against Defendants Jovanovich and Cuscaden. (See Pl. July 17, 2007
Mem. (Doc. No. 116) at 2-3, 5.)
6 The reader is reminded that this claim is distinct from Jenkinss state-law maliciousprosecution
claim (Count IV).
constitutional violations: malicious prosecution and deprivation of procedural due process.
(TAC 42(c)-(d).)5 Neither claim passes muster.
1. The malicious-prosecution claim6
Section 1983 provides a remedy only for violations of rights secured by the
Constitution or federal law. E.g., Pace v. City of Des Moines, 201 F.3d 1050, 1055 (8th
Cir. 2000). By itself, a malicious-prosecution claim is not actionable under Section 1983
because it fails to entail any constitutional injury. Id. Accordingly, in order to be
cognizable under Section 1983, a plaintiff asserting a malicious-prosecution claim must
demonstrate that the defendants conduct also infringed upon some constitutional
protection. Gunderson v. Schlueter, 904 F.2d 407, 409 (8th Cir. 1990). Here, Jenkins
asserts his malicious-prosecution claim in conjunction with the alleged infringement of his
rights to due process, equal protection, and First and Fourth Amendment guarantees. (See
Pl. July 17, 2007 Mem. (Doc. No. 116) at 8-10.)
a. Due process
Jenkins first alleges that the malicious prosecution instigated by the State
Defendants impaired his due-process rights. However, the TAC does not specify whether
7 To the extent this claim is predicated on the State Defendants alleged failure to disclose
exculpatory evidence during Jenkinss criminal trial, the claim also fails. (See infra at 16-17.)
the State Defendants alleged misconduct violated Jenkinss substantive-due-process
rights or his procedural-due-process rights. In either case, however, the claim fails.
To the extent that Jenkins asserts a substantive-due-process violation to support his
malicious-prosecution claim, his claim cannot stand. In Albright v. Oliver, the Supreme
Court held that substantive due process cannot provide the basis for a Section 1983
malicious-prosecution claim. 510 U.S. 266, 271 n.4 (1994) (noting that substantive due
process may not furnish the constitutional peg on which to hang [the] tort of malicious
Insofar as Jenkins predicates his malicious-prosecution claim on a procedural-dueprocess
violation, his claim also fails. To establish a procedural-due-process violation, a
plaintiff must show (1) a protected liberty or property interest and (2) deprivation of that
interest without sufficient process. E.g., Clark v. Kansas City Mo. Sch. Dist., 375 F.3d
698, 701 (8th Cir. 2004). While the precise contours of his claim are not clear, Jenkins
appears to assert that his procedural-due-process rights were violated when he was falsely
accused of a crime following a biased investigation. (See Pl. July 17, 2007 Mem. (Doc.
No. 116) at 5, 9.)7 Yet, there is no due-process right to be free from baseless prosecution.
See Albright, 510 U.S. at 282 (Kennedy, J., concurring). Indeed, the Constitution does not
guarantee that criminal charges will only be filed against the guilty. Sanders v. Sears,
8 In Albright, the Supreme Court recognized that there might be a Fourth-Amendment right to
be free from baseless prosecution. 510 U.S. at 274-75. It is not clear whether Jenkins has asserted
such a claim here. Regardless, such a claim would fail because there has been no Fourth-Amendment
seizure in this case. (See infra at 9-10.) And, Jenkins cannot make out a Fourth-Amendment claim
based solely on his alleged prosecution (rather than arrest) without probable cause, because the
Constitution does not entitle an accused to judicial oversight or review of the decision to prosecute.
Albright, 510 U.S. at 274 (quoting Gerstein v. Pugh, 420 U.S. 103, 119 (1975)).
Roebuck & Co., 984 F.2d 972, 997 n.6 (8th Cir. 1993). Were that the case, Section 1983
would provide a cause of action for every defendant ultimately acquitted. Baker v.
McCollan, 443 U.S. 137, 145 (1979). Accordingly, Jenkins has failed to allege a
cognizable procedural-due-process claim.8
b. Fourth Amendment
Jenkins also contends that he has adequately pleaded a Fourth-Amendment violation
because he was falsely accused of a crime and, as a result, he was unconstitutionally
seized, subject to bail, and compelled to make court appearances. (See Pl. July 17, 2007
Mem. (Doc. No. 116) at 8.) These contentions do not withstand scrutiny, because Jenkins
cannot show any unconstitutional seizure resulting from the false criminal charge.
There is no dispute that Jenkins was already being housed in the ADC on an
unrelated matter when he was charged with filing a false report. Hence, that charge did not
result in Jenkinss arrest or any independent detention. Moreover, the TAC does not allege
that the criminal case resulted in Jenkins being held in custody longer than he otherwise
would have been; indeed, Jenkins nowhere even intimates that he would have been released
from custody but for the criminal charge. In addition, the Eighth Circuit has expressly held
9 Jenkins has asserted a class-of-one claim because he has nowhere alleged differential
treatment based on his membership in a protected class or group, such as race or religion. See Village
of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
that bail requirements and mandatory court appearances do not constitute seizures of
Fourth-Amendment dimensions. See Technical Ordinance, Inc. v. United States, 244 F.3d
641, 650-51 (8th Cir. 2001). Accordingly, none of the consequences flowing from
Jenkinss false prosecution is tantamount to an unconstitutional seizure and, hence,
Jenkins has failed to state a cognizable Fourth-Amendment violation upon which to ground
his malicious-prosecution claim.
c. Equal protection
Jenkins next attempts to predicate his malicious-prosecution claim on an equalprotection
violation, alleging that the State Defendants intentionally, and without a rational
basis, subjected him to differential treatment. In a class-of-one equal-protection claim,9 a
plaintiff must demonstrate that he has been intentionally treated differently from others
similarly situated, and that there is no rational basis for the difference in treatment.
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). As this standard suggests,
identifying the disparity in treatment is especially important in class-of-one cases.
Barstad v. Murray County, 420 F.3d 880, 884 (8th Cir. 2005).
Here, while the TAC contains a conclusory allegation of discriminatory treatment
(see TAC 42(c) & n.1), there are no facts pleaded therein supporting that allegation.
Indeed, Jenkins nowhere alleges facts indicating that other detainees who complain[ed] of
10 The State Defendants argue that they had a rational basis for treating Jenkins differently from
others who complained of crimes by police officers because they had evidence that Jenkins had falsely
reported the alleged assault. However, the Court need not consider that argument, because Jenkins
has failed to even allege the lack of a rational basis for the purportedly disparate treatment.
a crime committed by law enforcement were treated differently than he was, or that such
individuals even exist notably, Jenkins has failed to identify even one similarly situated
individual. See, e.g., DuBois v. Ford Motor Credit Co., 276 F.3d 1019, 1022 (8th Cir.
2002) (the complaint must contain sufficient facts, as opposed to mere conclusions, to
satisfy the legal requirements of the claim to avoid dismissal); Williams v. Prudden, 67
Fed. Appx. 976, 977, 2003 WL 21135681, at *1 (8th Cir. May 19, 2003) (unpublished)
(affirming dismissal of equal-protection claim where plaintiff did not allege any facts to
show equal-protection violation).
Moreover, even if Jenkins had pleaded facts indicating that other similarly situated
individuals existed and were treated differently, he has nowhere alleged the lack of a
rational basis for the difference in that treatment.10 Without identifying a disparity in
treatment from others similarly situated, Jenkins has not stated a cognizable equalprotection
violation to support his malicious-prosecution claim.
Finally, the Court notes that Jenkins appears to direct this claim only against
Jovanovich, Cuscaden, and Bush: he alleges that these Defendants fabricated incident
reports and conducted the investigation into the alleged sexual assault with the purpose of
framing him for falsely reporting a crime. (See Pl. July 17, 2007 Mem. (Doc. No. 116) at
9.) None of these allegations, however, implicates the State Defendants. Nor do the
11 Jenkins argues that he has nowhere alleged a conspiracy and that the State Defendants use
that term only to liken this case to Twombly, which involved allegations of an antitrust conspiracy. In
the Courts view, however, an assertion that the State Defendants acted in concert with others is
tantamount to alleging that the Defendants conspired with one another.
allegations in the TAC provide any basis for inferring any purposeful discrimination on
behalf of the State Defendants.
Jenkins appears to recognize this defect in his claim, because in his Opposition he
alleges that the State Defendants acted in concert with Jovanovich, Cuscaden, and Bush,
who allegedly had a discriminatory motive. (Pl. Mem. in Oppn to County Def. Mtn. at 11.)
Yet, an allegation that the Defendants acted in concert in other words, that they
conspired with one another must be pleaded with specificity. E.g., Manis v. Sterling, 862
F.2d 679, 681 (8th Cir. 1988); Marlin v. Raper, No. 2:06CV0004, 2007 WL 779710, at *6
(E.D. Ark. Mar. 13, 2007).11 Here, despite his allegation to the contrary, Jenkins has not
pleaded the who, what, where, and how of the alleged conspiracy between the State
Defendants and the individual County Defendants. (Pl. July 24, 2007 Mem. (Doc. No. 120)
at 2.) He has simply asserted that [a]fter . . . notification [of Jenkinss intent to sue], and
after discussions with the [Hennepin County] Sheriffs office, the BCA decided to become
the criminal complainant . . . to prevent this civil lawsuit and . . . to protect the jailers from
liability. (TAC 36.)
For all of these reasons, Jenkins has failed to adequately allege an equal-protection
violation supporting his malicious-prosecution claim against the State Defendants.
d. First Amendment
12 In the TAC, Jenkins seems to suggest that the State Defendants personally harbored some
retaliatory animus that impelled them to conduct a biased investigation and to file charges against him.
In his Memorandum in Opposition, however, Jenkins asserts that the State Defendants merely acted in
concert with others who had a motive to retaliate, presumably referring to Jovanovich, Cuscaden,
and/or Bush. (Mem. in Oppn to State Def. Mtn. at 11.)
Finally, Jenkins also attempts to base his malicious-prosecution claim on an alleged
violation of his First-Amendment rights. Although, yet again, his claim is somewhat
unclear, the crux of Jenkinss claim appears to be that the criminal case was brought against
him in retaliation for complaining about the sexual assault.
As a general matter, the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions, including criminal prosecutions, for
speaking out. Hartman v. Moore, 547 U.S. 250, 250 (2006). To prevail in an action for
First-Amendment retaliation, a plaintiff must show that (1) the officials adverse action was
motivated in part by the exercise of a constitutional right and (2) the adverse action caused
him to suffer an injury that would chill a person of ordinary firmness from continuing in
the activity. Williams v. City of Carl Junction, Mo., 480 F.3d 871, 877-78 (8th Cir. 2007).
Additionally, a plaintiff must demonstrate a causal connection between a defendants
retaliatory animus and [the plaintiffs] subsequent injury. Moore, 547 U.S. at 250. Here,
it is unclear whether Jenkins is alleging that the State Defendants themselves possessed a
retaliatory motive, or whether they merely acted in concert with those who did.12 That lack
of clarity is immaterial, however, because the claim fails in either case.
To the extent that Jenkins contends the State Defendants themselves sought to
13 In fact, the State Defendants, as law-enforcement officers, presumably have an interest in
rooting out unlawful activity at the ADC, which, of course, is antithetical to Jenkinss claim.
retaliate against him, his claim fails because the TAC does not allege any facts suggesting
why the State Defendants would have harbored such a retaliatory animus. For example,
there is nothing pleaded in the TAC indicating that the State Defendants knew any of the
County Defendants and, therefore, sought to protect them.13 Jenkins cannot simply allege,
in conclusory fashion, that the State Defendants sought to retaliate against him, in the hope
of later uncovering some unknown and un-alleged facts to support that conclusory
assertion. Rather, he was required to allege in the TAC sufficient facts to render
plausible his claim that the State Defendants intended to retaliate. Twombly, 127 S. Ct. at
1974. Nothing in the TAC provides any plausible explanation for why the State Defendants
would have sought to shield Jovanovich, Cuscaden, and Bush from liability or cater to these
individuals wishes; the TAC is utterly devoid of facts supporting any such inference.
To the extent Jenkins alleges that the State Defendants acted in concert with other
individuals having a retaliatory animus, Jenkinss claim founders for the same reason as his
equal-protection claim: he has not pleaded specific facts to support that assertion. (See
supra at 10-13.) At its most robust, the TAC alleges that the State Defendants instituted the
false criminal charge after consulting with the Hennepin County Sheriffs Office and
after Jenkins requested the retention of evidence for a lawsuit. (See id; TAC 36.) In the
Courts view, this is insufficient to adequately plead a conspiracy between the State
Defendants and the individual County Defendants, and does not provide any reasonable
basis for inferring that Jenkinss criminal prosecution was initiated in response to Jenkinss
prospective lawsuit. The First-Amendment retaliation claim, therefore, cannot serve as the
basis for a malicious-prosecution claim.
For all of these reasons, Jenkins has failed to adequately allege the infringement of a
constitutional right upon which to base his malicious-prosecution claim. See Gunderson,
904 F.2d at 409. Accordingly, that claim will be dismissed.
2. Jenkins has failed to adequately allege a procedural-due-process
In addition to alleging a procedural-due-process violation under the rubric of
malicious prosecution, Jenkins also asserts a freestanding procedural-due-process claim
against the State Defendants; he bases that claim on two distinct theories. First, Jenkins
alleges that the State Defendants biased investigation led to his prosecution without
probable cause. (TAC 42(d).) Second, he claims that he was deprived of his right to a fair
trial due to the State Defendants failure to preserve and/or disclose exculpatory evidence.
(Id.) The Court finds that neither theory survives the State Defendants Motion.
First, as noted above (see supra at 8-9), there is no due-process right to be free from
baseless prosecution, Oliver, 510 U.S. at 282-83, because the Constitution does not
guarantee that criminal charges will only be filed against the guilty, Sanders, 984 F.2d at
997 n.6. Hence, Jenkinss claim that the biased investigation resulted in his baseless
prosecution fails to state a cognizable claim.
The alleged deprivation of Jenkinss right to a fair trial also fails to adequately state
a claim. Jenkins alleges that the State Defendants violated Brady v. Maryland, 373 U.S. 83
(1963), because in his criminal trial they failed to turn over evidence tending to exculpate
him. It is true that the failure to turn over evidence to an accused may constitute a dueprocess
violation when the evidence is material either to guilt or innocence. Id. at 87.
Evidence is material for Brady purposes, however, only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different. United States v. Bagley, 473 U.S. 667, 682 (1985). Stated
differently, a Brady violation requires a nondisclosure so serious that there is a reasonable
probability that the . . . evidence would have changed the outcome of the criminal trial.
Strickler v. Greene, 527 U.S. 263, 281 (1999).
Here, there cannot have been a Brady violation ipso facto, because Jenkins was
acquitted of the charge against him. In other words, the result of the criminal case would
not (and could not) have been different had the allegedly exculpatory evidence been
disclosed. Jenkins appears to concede as much in his Motion papers; the State Defendants
raised this very argument, but Jenkins has nowhere responded thereto.
For all of these reasons, Jenkinss constitutional claim against the State Defendants
fails and will be dismissed.
B. The Court declines to exercise supplemental jurisdiction over the
state-law malicious-prosecution claim against the State Defendants.
Having dismissed the lone federal claim asserted against the State Defendants, the
Court must decide whether to exercise supplemental jurisdiction over the only other claim
asserted against those Defendants: the state-law malicious-prosecution claim (Count IV).
The Court concludes that the appropriate course of action is to decline to exercise
supplemental jurisdiction and dismiss that claim without prejudice.
When a district court dismisses a claim over which it has original jurisdiction, it
may decline to exercise supplemental jurisdiction over state-law claims that are related to
that federal claim. See 28 U.S.C. 1367(c)(3); ACLU v. City of Florissant, 186 F.3d
1095, 1098-99 (8th Cir. 1999). Here, the only federal claim asserted against the State
Defendants the constitutional claim in Count I has been dismissed. Accordingly, were
the Court to decline to exercise supplemental jurisdiction over the malicious-prosecution
claim, this litigation would be streamlined because, as a result, the State Defendants would
have been dismissed from this lawsuit in its entirety. Moreover, for the reasons set forth
below, the Court believes that the malicious-prosecution claim against the County
Defendants should be dismissed. (See infra at 24-26.) Thus, no claim similar to the
malicious-prosecution claim against the State Defendants remains in this lawsuit.
Exercising supplemental jurisdiction over the claim, therefore, would result in the Court
rendering a needless decision[] of state law. City of Florissant, 186 F.3d at 1099.
II. The County Defendants
A. The assault and battery claims (Counts II and III) must be dismissed.
The County Defendants first argue that Jenkinss assault and battery claims are time
barred. (County Def. Mem. at 5-11.) There is no dispute that the relevant limitations
14 Because Jenkinss assault and battery claims are before the Court by virtue of supplemental
jurisdiction, it must apply Minnesotas statute of limitations to those claims. See United Mine Workers
of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (noting that federal court is bound to apply state law to
claims over which it exercises supplemental jurisdiction).
15 Jenkins also argues that the statute of limitations was not violated because the County
Defendants have been on notice of his claims since October 2003. (Mem. in Oppn to County Def.
Mtn. at 5-11 (Notice is the only thing that a statute of limitations was intended to provide.).) This
argument is meritless. The Minnesota statute of limitations requires an action to be commenced within
the prescribed time period, not that a defendant merely have knowledge that a potential claim might
exist. See Sieg v. Karnes, 693 F.2d 803, 807 (8th Cir. 1982) (attempted service of summons and
complaint put defendant on notice of lawsuit, but statute of limitations nevertheless expired because
attempted service was invalid and, hence, action was not properly commenced within limitations
period). Moreover, statutes of limitations are not intended simply to provide notice to defendants;
rather, there are several other policy reasons for such statutes, including discourag[ing] fraud and
endless litigation and prevent[ing] a party from delaying an action until papers are lost, facts forgotten,
or witnesses dead. Karels v. Am. Family Mut. Ins. Co., 371 N.W.2d 617, 619 (Minn. Ct. App.
1985) (citing Bachertz v. Hayes-Lucas Lumber Co., 275 N.W. 694, 697 (Minn. 1937)).
period for these claims is two years. See Minn. Stat. 541.07(1).14 Nor is there any
dispute that Jenkins commenced this action beyond the statute of limitations. Instead,
Jenkins attempts to invoke the doctrines of fraudulent concealment and/or equitable
estoppel to toll the limitations period. (TAC 48, 53; see also Mem. in Oppn to County
Def. Mtn. at 5-11.) His attempt fails.15
1. Fraudulent concealment
The doctrine of fraudulent concealment protects a plaintiff by tolling the statute of
limitations where the defendant concealed the very existence of the facts which establish
the cause of action. Marvin Lumber & Cedar Co. v. PPG Indus., Inc., 223 F.3d 873, 877
(8th Cir. 2000) (applying Minnesota law). There is no allegation here that the County
Defendants in any way concealed the facts giving rise to Jenkinss assault and battery
claims. Indeed, such an allegation would be contrary to the very nature of those claims,
which involve a direct physical attack (or the threat thereof) by one person against another.
Instead, Jenkins asserts that Jovanovich and Cuscaden falsely accused him of a crime
for the purpose of interfering with his civil suit. This was fraudulent, and as a legal and
practical matter prevented Jenkins from bringing this case until after he was acquitted in the
criminal case. (Mem. in Oppn to County Def. Mtn. at 9.) Although this sounds more like
an argument for equitable estoppel (which Jenkins also argues and which is addressed
below), Jenkins devotes six pages of his Memorandum to arguing that this conduct supports
the application of fraudulent-concealment tolling. He relies on Heck v. Humphrey, 512
U.S. 477 (1994), to assert that he was precluded from bringing either an assault or a battery
claim until after the false criminal case was resolved. (Mem. in Oppn to County Def.
Mtn. at 9.) However, Jenkins misapprehends Hecks holding.
In Heck, the Supreme Court held that a civil-rights action under Section 1983 is not
the appropriate vehicle for challenging the validity of a state-court criminal judgment.
Instead, the Court ruled that a Section-1983 plaintiff seeking damages for an
unconstitutional conviction must show that the conviction was reversed on appeal,
expunged, or invalidated. Otherwise, the civil action necessarily calls into question the
validity of the conviction and is barred. See Heck, 512 U.S. at 486-87, 490.
Under Heck, the fabricated criminal charge at issue here presented no legal hurdle
to Jenkinss assault and battery claims, for two reasons. First, both of these claims arise
under state law and not under Section 1983; Hecks bar, however, applies only to Section16
As the County Defendants pointed out in their opening Memorandum, some states have
adopted and applied Heck to claims arising under state law. Jenkins has cited no Minnesota cases
having done so, and the Court is unaware of any. See Hawks v. Lake Minnetonka Conserv. Dist., No.
C6-98-1608, 1999 WL 138731, at *5 (Minn. Ct. App. Mar. 16, 1999) (discussing limitation of
Hecks holding to Section 1983 claims).
Jenkins has cited several cases in which state-law claims purportedly were dismissed under
Heck. (See Mem. in Oppn to County Def. Mtn. at 8.) For example, Jenkins characterizes the holding
in Marable v. West Pottsgrove Township, 176 Fed. Appx. 275 (3d Cir. 2006), as follows: state tort
of false arrest and malicious prosecution dismissed under Heck v. Humphrey analysis. Marable,
however, did not involve state-law malicious prosecution and false-arrest claims, but rather dealt with
such claims under Section 1983. Nor did any of the other cases Jenkins (mis-)cites dismiss state-law
claims under Heck. See Campbell v. Kelly, No. Civ. A. 02-6814, 2003 WL 21660024, at *4 (E.D.
Pa. July 14, 2003) (declining to exercise supplemental jurisdiction over state-law claims because
federal claims had been dismissed); Holder v. Ivanjack, 93 F. Supp. 2d 933, 939-40 (N.D. Ill. 2000)
(dismissing assault and battery claims due to collateral estoppel, not Heck bar); Santiago v. Marquez,
No. 97 C 2775, 1998 WL 160878, at *2 (N.D. Ill. Mar. 31, 1998) (refusing to dismiss Section 1983
claim alleging false arrest, false imprisonment, and excessive force under Heck). Simply put, Jenkinss
Memoranda are replete with citations to cases that do not stand for the propositions for which they are
1983 claims.16 Second, Heck applies only after an individual has been convicted in a
criminal case. Here, Jenkins was never convicted of making a false statement to police.
Hence, the Heck bar is inapplicable and could not have precluded Jenkins from suing for
assault and battery while his criminal case was pending.
Jenkins also appears to argue that the names of the officers who committed the
assault were fraudulently concealed from him, although that argument is buried in an
affidavit submitted by Jenkinss counsel in opposition to the County Defendants Motion.
(See Clark Aff. (Doc. No. 104) 8.) Of course, affidavits which are not properly before
the Court on a motion to dismiss are not the appropriate place for legal arguments. See
In re Hartford Sales Practices Litig., 192 F.R.D. 592, 597 (D. Minn. 1999) (Kyle, J.).
Regardless, even if the identity of Jenkinss assailants had somehow been concealed from
him, he still could have sued the assailants as John Doe defendants, as he has done with
other Defendants in this case. See Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 919
(Minn. 1990) (A party need not know the details of the evidence establishing a cause of
action, only that the cause of action exists.). Accordingly, this alleged concealment
cannot have impeded Jenkins from filing this lawsuit.
The doctrine of fraudulent concealment, therefore, does not aid Jenkinss cause.
2. Equitable estoppel
Jenkinss argument that the statute of limitations should be tolled by equitable
estoppel fares no better. That doctrine permits tolling of the limitations period when the
plaintiff show[s] representations made by one party that the other has reasonably relied on
to his detriment. Hoffman v. Van Hook, No. A06-1213, 2007 WL 1053816, at *5 (Minn.
Ct. App. Apr. 10, 2007). Here, Jenkins has nowhere alleged that the County Defendants
made misrepresentations that caused him to delay filing his claims. Moreover, even
assuming (as Jenkins alleges) that the County Defendants falsely accused him of a crime
solely to prevent him from filing this lawsuit, he has nowhere alleged how the criminal
case prevented him from doing so. Indeed, there is nothing inherent in the nature of being
charged with a crime that would prevent an individual from commencing a lawsuit; as court
dockets around the country make abundantly clear, persons accused of crimes, as well as
those already convicted and incarcerated, file lawsuits on a daily basis. Jenkins has
articulated no reason why he is any different.
17 The Court may consider the criminal complaint when ruling on the County Defendants
Motion to Dismiss because it is incorporated by reference in paragraph 36.5 of the TAC. See
Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1063 n.3 (8th Cir.
2005) (court may consider matters incorporated by reference into complaint when ruling on motion to
18 Neither Bush nor the County is named as a defendant in the malicious-prosecution claim.
Furthermore, the alleged assault in this case occurred on October 4, 2003, and the
criminal case against Jenkins was commenced by criminal complaint filed March 29, 2004.
(See Beitz Aff. (Doc. No. 96) Ex. 5.)17 Even if the Court were to assume that the criminal
case impeded Jenkins from filing this lawsuit, he has nowhere explained how, or why, he
was unable to commence this action in the five months between the alleged assault
(October 4, 2003) and the day the criminal case was initiated (March 29, 2004). His lack
of diligence in bringing his claim militates against the application of equitable estoppel.
See generally Hydra-Mac, 450 N.W.2d at 919-20 (equitable estoppel requires exercise of
diligence by party seeking to toll statute of limitations).
For these reasons, Jenkins cannot avail himself of the doctrines of fraudulent
concealment and equitable estoppel in order to toll the statute of limitations for his assault
and battery claims. Accordingly, these claims are barred by Minnesotas two-year statute
of limitations, and they must be dismissed.
B. The state-law malicious-prosecution claim (Count IV) fails.
Jovanovich and Cuscaden next argue that Jenkins has not successfully pleaded a
malicious-prosecution claim against them.18 Under Minnesota law, the elements of a claim
19 Jovanovich and Cuscaden also argue that probable cause existed to prosecute Jenkins, but
the Court need not (and does not) reach that argument.
for malicious prosecution are (1) the defendants initiation of criminal proceedings against
the accused party without probable cause, (2) malice, and (3) termination of the
proceedings in favor of the accused party. E.g., Jones v. City of Minneapolis, Civ. No. 04-
4856, 2005 WL 612920, at *3 (D. Minn. Mar. 11, 2005) (Frank, J.) (citations omitted);
Morgan v. McLaughlin, 188 N.W.2d 829, 831 (Minn. 1971) (noting that the gist of a
malicious-prosecution claim is the malicious instigation of a prosecution without
probable cause). Jovanovich and Cuscaden argue that Jenkins has failed to adequately
allege facts satisfying the first (initiating prosecution without probable cause) and second
(malice) essential elements. Because the Court agrees that Jenkins cannot show that these
Defendants were responsible for initiating the criminal case against him, it need not reach
their arguments concerning malice.19
The facts pleaded in the TAC make clear that Jovanovich and Cuscaden were not
involved in Jenkinss prosecution, but instead were merely witnesses to and/or participants
in the conduct that, according to Jenkins, constituted the alleged assault. Indeed, the TAC
specifically alleges that, after discussions with the Sheriffs office, the BCA decided to
become the criminal complainant in [the] state criminal action against Jenkins. (TAC
36.) There are simply no facts pleaded in the TAC indicating that Jovanovich, Cuscaden, or
any other ADC personnel were somehow involved in the decision to initiate the criminal
20 Jenkins cites several cases for the proposition that a malicious-prosecution claim may lie
against a witness or other person who continues to press a prosecution that has already been
commenced. (See Mem. in Oppn to County Def. Mtn. at 17-18.) However, none of those cases
dealt with a malicious-prosecution claim under Minnesota law; rather, each concerned malicious
prosecution as a constitutional tort under Section 1983. In Minnesota, an allegation that a third-party
has encourag[ed] continuation of a criminal prosecution is insufficient. Ellis v. City of Minneapolis,
No. C3-90-1192, 1991 WL 505, at *2 (Minn. Ct. App. Jan. 8, 1991).
case. This fact scuttles the malicious-prosecution claim. See Jones, 2005 WL 612920, at
*3 (dismissing malicious-prosecution claim because complaint did not allege that [the
defendant] was involved in the Minneapolis Police Departments decision to initiate
criminal proceedings against Jones); Morgan, 188 N.W.2d at 831-32 (maliciousprosecution
claim against police officers failed where officers were only passively
involved in procurement of search warrant that led to plaintiffs arrest); see also Stead-
Bowers v. Langley, 636 N.W.2d 334, 339-41 (Minn. Ct. App. 2002) (holding that
malicious prosecution require[s] the initiation of an action more formal than a criminal
investigation, and that simply providing information to police officers during an
investigation is insufficient to create liability).20
Moreover, Jenkins was not prosecuted by the BCA, but rather by the St. Paul City
Attorneys Office. (TAC 37.5.) Generally speaking, the decision to prosecute an
individual rests solely with the prosecutor. See, e.g., United States v. Armstrong, 517 U.S.
456, 464 (1996) (citation omitted); State v. Herme, 298 N.W.2d 454, 455 (Minn. 1980).
The TAC nowhere alleges facts suggesting that the prosecutor here was controlled by
Jovanovich or Cuscaden or that the prosecutor somehow failed to independently exercise
21 This claim also is asserted against three John Doe defendants, but there are no facts
pleaded in the TAC that would suggest any involvement by the John Does in Jenkinss malicious
prosecution. Indeed, the John Does are only mentioned once in the TAC, when Jenkins recites the
parties against whom the lawsuit is brought. (See TAC 7.) Accordingly, the Court will dismiss the
malicious-prosecution claim against the John Does, as well.
his discretion when opting to charge Jenkins with submitting a false report. See Dunham v.
Roer, 708 N.W.2d 552, 570 (Minn. Ct. App. 2006) (malicious-prosecution claim based on
assertion that complainant had persuaded the city prosecutor to file criminal charges . . .
and force the case to trial failed because plaintiff had not produced evidence that
prosecutor was controlled by [the complainant] and failed to exercise independent
Accordingly, the Court will dismiss Jenkinss malicious-prosecution claim against
Cuscaden and Jovanovich.21
C. The constitutional claim against Bush must be dismissed.
Bush has moved to dismiss (or, in the alternative, for summary judgment on)
Jenkinss constitutional claim. Bush argues that Jenkinss factual allegations against him
are wholly speculative and, in any event, are demonstrably false. (County Def. Mem. at 13-
17.) The Court does not reach these arguments, because there is a more fundamental
problem with Jenkinss constitutional claim against Bush.
Jenkins has nowhere specified in the TAC (or in any prior version of his Complaint)
whether he has sued Bush in his individual or official capacity. As the Eighth Circuit has
made abundantly clear:
Public servants may be sued under section 1983 in either their official capacity,
their individual capacity, or both. . . . This court has held that, in order to sue a
public official in his or her individual capacity, a plaintiff must expressly and
unambiguously state so in the pleadings, otherwise, it will be assumed that the
defendant is sued only in his or her official capacity. Because section 1983
liability exposes public servants to civil liability and damages, we have held that
only an express statement that they are being sued in their individual capacity
will suffice to give proper notice to the defendants. Absent such an express
statement, the suit is construed as being against the defendants in their
official capacity.
Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (emphases added)
(citations omitted); accord, e.g., Artis v. Francis Howell N. Band Booster Assn, Inc., 161
F.3d 1178, 1182 (8th Cir. 1998); Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997).
This has been settled law in the Eighth Circuit for nearly twenty years. See Nix v. Norman,
879 F.2d 429, 431 (8th Cir. 1989).
Jenkins clearly understands the need to plead capacity with specificity he has
explicitly alleged that Cuscaden and Jovanovich are sued in their official and individual
capacities, while he has sued Blanch and Knutson in their individual capacities only. The
TAC contains no similar averment with respect to Bush; it is noticeably silent on this issue.
Accordingly, the Court must assume that Bush has been sued in his official capacity only.
This mandatory assumption, however, is fatal to Jenkinss claim. An official
capacity suit is simply another way of pleading an action directly against the public entity
itself. Roberts v. Dillon, 15 F.3d 113, 115 (8th Cir. 1994). In other words, Bush has sued
the County twice: once by naming it as a defendant in the constitutional claim, and once
again by naming Bush, in his official capacity, as a defendant in that claim. The Court may
22 Jenkins does allege that Defendants acted under color . . . of a . . . policy [and] custom
(there was a pattern and practice of condoning sexual misconduct in the jail, and/or a policy of not
disciplining jailers for such misconduct) . . . . (TAC 43.) This bald allegation, which is devoid of any
supporting factual averments, is insufficient under Twombly. See 127 S. Ct. at 1964-65 (plaintiff must
plead sufficient facts to provide the grounds of his entitle[ment] to relief, [which] requires more than
labels and conclusions); see also Hastings v. Wilson, Civ. No. 05-2566, 2007 WL 333617, at *2
(D. Minn. Feb. 1, 2007) (Kyle, J.) (when ruling on motion to dismiss, the Court need not consider
conclusory allegations or blindly accept the legal conclusions drawn by the plaintiff).
dismiss Bush as a defendant under these circumstances. Artis, 161 F.3d at 1182.
The Court does not end its analysis there, however, because also absent from the
TAC are any facts indicating, or even suggesting, that Bushs allegedly unlawful actions
were intended to implement or execute an unconstitutional policy or custom. Johnson,
172 F.3d at 535-36.22 In the absence of factual allegations indicating that such a policy or
custom exists, the claim fails. Id.; see also D.E.S. v. Kohrs, 187 F.3d 641 (Table), 1999
WL 506121, at *2 (8th Cir. 1999) (unpublished) (affirming dismissal of official-capacity
claims where plaintiff failed to plead unconstitutional policy or custom).
Accordingly, the Court will dismiss the constitutional claim against Bush.
III. The dismissals due to pleading defects will be with prejudice.
As the foregoing makes clear, several of Jenkinss claims fail as a matter of law
(e.g., the assault and battery claims), while others fail because they have been improperly
pleaded (e.g., the constitutional claim against Bush). As to the claims with mere pleading
defects, an important question remains: should the dismissal of those claims be with or
without prejudice?
In answering that question, the Court notes that Jenkins has had four bites at the
proverbial apple: an original Complaint, followed by three subsequent amendments. Each
of those amendments came only after Defendants moved to dismiss and pointed out the
defects in Jenkinss pleadings. Despite three tries, however, Jenkins has failed to correct
those pleading defects. Moreover, Jenkins is not proceeding pro se in this case; he is
represented by an experienced civil-rights litigator who has filed dozens of Section 1983
cases in this Court. Finally, the undersigned notes that Jenkinss counsel was recently
admonished by District Judge Joan N. Ericksen of this Court in a case involving claims
similar to those at issue here. There, the constitutional claims were pleaded in a confusing,
kitchen-sink approach, much like the claims here. Generously describing the plaintiffs
claims as less than clear, Judge Ericksen warned that [l]itigants, particularly those
represented by counsel, have a duty to clearly inform the court of the bases for their
requested relief. Stepnes v. Tennessen, Civ. No. 04-68, 2006 WL 2375645, at *4 n.10
(D. Minn. Aug. 16, 2006). Jenkinss counsel clearly has failed to heed that warning in this
case, which was filed three short weeks after Stepnes was decided.
For all of these reasons, the Court concludes that the defectively pleaded claims
should be dismissed with prejudice. See, e.g., Foman v. Davis, 371 U.S. 178, 182 (1962)
(court need not grant party leave to amend where there exists a repeated failure to cure
[the pleading] deficiencies by amendments previously allowed); Baptist Health v. Smith,
477 F.3d 540, 544 (8th Cir. 2007). In the Courts opinion, it is time for this lawsuit to
move forward towards its conclusion, rather than giving Jenkins yet another chance to
amend his Complaint and, most likely, inviting another round of motions to dismiss.
23 See 28 U.S.C. 1367(d).
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED as follows:
1. The State Defendants Motion to Dismiss (Doc. No. 40) is GRANTED. To
the extent that Count I of the Third Amended Complaint is asserted against
the State Defendants, that claim is DISMISSED WITH PREJUDICE. To
the extent that Count IV of the Third Amended Complaint is asserted against
the State Defendants, the Court declines to exercise supplemental
jurisdiction over that claim and it is DISMISSED WITHOUT
2. The County Defendants Motion for Partial Dismissal and/or Partial
Summary Judgment (Doc. No. 91) is GRANTED. Counts II and III of the
Third Amended Complaint are DISMISSED WITH PREJUDICE. To the
extent that Count IV is alleged against Jovanovich, Cuscaden, and the John
Doe Defendants, that claim also is DISMISSED WITH PREJUDICE.
For the sake of clarity, the only claim remaining in this case is the constitutional
claim (Count I) against the County Defendants.
Dated: August 3 , 2007 s/Richard H. Kyle
United States District Judge


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