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US District Court : 1983 | 1ST AMENDMENT - Questions of material fact regardig retaliation for political speech; insufficent evidence of city custom/policy

1 On a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Alfred Flowers,
Plaintiff,
MEMORANDUM OPINION
v. AND ORDER
Civil No. 05-2349 ADM/JSM
City of Minneapolis, Minnesota,
Don Samuels, in his individual and
official capacities, and Paul Ostrow,
in his individual and official capacities,
Gail Plewacki, in her individual and
official capacities, and John Does 1-5,
Defendants.
______________________________________________________________________________
Jill Clark, Esq., Jill Clark P.A., Golden Valley, MN, argued on behalf of Plaintiff.
James Anthony Moore, Assistant City Attorney, Minneapolis, MN, argued on behalf of
Defendants.
______________________________________________________________________________
I. INTRODUCTION
On May 29, 2007, oral argument before the undersigned United States District Judge was
heard on Defendants City of Minneapolis (the City), Don Samuels (Samuels), and Paul
Ostrows (Ostrow) (collectively Defendants) Motion for Summary Judgment [Docket No.
8]. In his Complaint [Docket No. 1], Plaintiff Alfred Flowers (Flowers) asserts that
Defendants violated 42 U.S.C. 1983 by retaliating against him for exercising his rights under
the First Amendment. For the reasons set forth herein, Defendants Motion is granted in part and
denied in part.
II. BACKGROUND1
Plaintiff Alfred Flowers is a black community activist who has often criticized City
officials. Flowers Decl. (Clark Decl. [Docket No. 25] Ex. 13) 1, 3. Flowers has produced and
2
hosted a show on the Minneapolis Television Network (MTN). MTN is a public access
television station operating under a cable communications franchise agreement, whereby the
City awarded the franchisee cable company access to certain rights of way. Colby Aff. [Docket
No. 16] 2. In return, the cable company provides funds for the City to use for public,
education, and government (PEG) access broadcasting functions. Id. The City provides most
of MTNs funding, which normally consists of the PEG funds the City receives plus an
additional amount allocated by the City Council. Plewacki Dep. (Moore. Aff. [Docket No. 15]
Ex. 1) at 29-31.
In 2005, as a result of redistricting, incumbent City Council Members Natalie Johnson
Lee and Defendant Don Samuels campaigned against each other for reelection. Colby Aff. 4.
Supporters of both candidates made frequent use of MTN to express their views. Id. Flowers
often criticized Samuels for not adequately representing the interests of African-Americans in
the City. Samuels Aff. [Docket No. 14] 1.
In May 2005, Flowers produced and hosted a MTN broadcast of a program called the
Real State of the City. Booker Hodges (Hodges) also appeared on the show, which was
initially broadcast on May 6, 2005. Samuels Dep. (Clark Decl. Ex. 15) at 67. During the
program, Flowers and Hodges discussed topics such as disbursement of Federal Empowerment
Zone funds to African-Americans in Minneapolis and the need for jobs for African-Americans.
Clark Decl. Exs. 1, A. Flowers and Hodges criticized the Minneapolis Civil Rights Department
and the Police Community Relations Council. Id. They also alleged that a peace games event
sponsored by Samuels Peace Foundation was merely a public relations ploy to politically
benefit Samuels. Id.
Flowers and Hodges also expressed their opinions that Samuels failed to adequately
represent African-Americans in the City. Flowers and Hodges showed a videoclip of Samuels
2 Hereinafter, these references will be referred to as Hodges controversial comments.
3
discussing that his ancestors in Jamaica were slaves who served in the big house, where they
benefitted from exposure to education, music, and culture. Id. Exs. 1 at 13, A. Flowers and
Hodges asserted Samuels statement was offensive to many African-Americans because house
slaves assisted slaveholders in disciplining field slaves. Id. Exs. 1 at 13-14, A. At the end of the
program, Flowers and Hodges proposed solutions to the problems they identified. Hodges made
statements encouraging his viewers to gain political power through the voting process:
! To me the solution is ultimately all the things we sit here talking about, whether it be
economic development, which is job creation, people like Council Member Samuels, you
know its simple. We as a people, one in Minneapolis, have to unite and we have to learn
from like Nat Turners mistake, and we have to kill the house niggers, we gotta kill em,
and thats what were doing on this show, we trying to kill the house nigger, and we have
to get in power. Cause you have to understand as long as we gotta go begging to
somebody were never going to get where we need to be. DFL [Democratic-Farmer-
Labor Party], for example, representative Ellison . . . even Council Member Samuels, the
black people running over in the eighth ward City councilwhy would you need this
party to run in your own neighborhood when you the majority? You dont need this
party. See, black people, we have to understand and get in the right mind set, we have to
get in power. Id. Exs. 1 at 17, A at 49:35-50:42.
! I just want the community to understand as we wrap up here, the ultimate solution is we
got to unify, we gotta start off by voting, vote the person, not the party, cause in our city
the African-American community gets writ off because they said we dont vote, we get
writ off because the ones who are active and keep they mouth shut to take the little thirtythousand
[dollars] . . . they get invited to the meeting where they allegedly speaking for
us but that day is slowly coming to an end . . . because we [Flowers and Hodges] finding
out too quick what they doing. Id. Exs. 1 at 18, A at 53:08-53:43.
! [W]e just want people to get out there and help us, listen to [radio station] KMOJ . . . .
[C]ontinue to watch MTN . . . and just remember the solution, you gotta get out and vote
we realize we aint gonna save everybody, but you gotta help us, you gotta get out there
and vote and please if you see a house negro deal with them appropriately, call them out,
do not allow these people to continue to sell us out . . . . Id. Exs. 1 at 19, A at 55:20-
56:00.
Samuels avers that he interpreted Hodges references to kill[ing] the house nigger,2 as a
literal call for viewers to commit violent acts against him. Samuels Dep. at 49-50; Samuels Aff.
3 The Minneapolis City Attorney has a conflict of interest policy to refer matters
involving Minneapolis City Council Members to the St. Paul City Attorney.
4
3. On May 17, 2005, Samuels contacted the City Police Department to report that Hodges
comments might violate criminal laws. Clark Decl. Ex. 8. Although the responding officer
informed Samuels there was insufficient evidence for a criminal prosecution, Samuels urged that
the matter be referred to the City Attorneys Office for a possible criminal prosecution of
Flowers and Hodges. Id.; Samuels Dep. at 107-08. After reviewing the matter, the St. Paul City
Attorneys Office3 declined to prosecute.
Samuels also expressed his concerns to the Mayors office and to members of the
Minneapolis City Council, including Defendant Paul Ostrow, who was then Council President.
Ostrow Dep. (Clark Decl. Ex. 16) at 25-27, 50. On or around May 17, 2005, Ostrow arranged a
meeting at City Hall so Samuels could inform MTN Executive Director Pamela Colby (Colby)
of his concerns. Id. at 52. The meeting was attended by Ostrow, Samuels, Colby, and Kinshasha
Kambui (Kambui), who was then a Policy Aide in the Mayors office. Id. at 25; Kambui Decl.
[Docket No. 24] 4-6. Ostrow, Samuels, Colby, and Kambui viewed portions of the Real State
of the City program, including Hodges controversial comments. Ostrow Dep. at 61. Samuels
explained that Hodges controversial comments constituted an actual and imminent threat to
Samuels physical safety. Samuels Aff. 5.
Colby, Samuels, and Ostrow aver that they discussed First Amendment issues and that
Samuels and Ostrow asked Colby to consider whether the Real State of the City program
crossed the line. Colby Aff. 10; Ostrow Dep. at 54-55; Samuels Aff. 5. Samuels, Ostrow,
and Colby aver that Samuels and Ostrow did not demand that Colby discipline Flowers and
Hodges for Hodges controversial comments. Colby Aff. 10; Ostrow Dep. at 54; Samuels Aff.
6.
5
Colby avers that after the meeting, she returned to her office and reviewed the Real State
of the City program several times. Colby Aff. 18. Around this same time, Colby learned that
City Communication Director Gail Plewacki (Plewacki) had called MTN regarding Hodges
controversial comments and stated, Do I have to remind you where your budget comes from.
Bagdadi Dep. (Clark Decl. Ex. 5) at 11; Colby Aff. 15. After reviewing the Real State of the
City program, Colby suspended both Flowers and Hodges for three months from using MTNs
facilities and appearing on or submitting MTN programming. Colby Aff. 18, 21. Flowers
was suspended because he signed a form accepting responsibility for the content of the show. Id.
18.
Colby avers that she independently decided to suspend Flowers and Hodges. Id. 25.
However, Kambui alleges that at the May 17 meeting, [b]oth Samuels and Ostrow told [Colby]
that, something has to be done. Kambui Decl. [Docket No. 24] 5. According to Kambui,
Ostrow and Samuels brushed aside free speech concerns. Id. Kambui avers Colby made a
commitment to Samuels and Ostrow that something would be done and she discussed MTN
policies regarding suspension. Id. 6.
On May 18, 2005, Colby and MTN staff member J.C. Bagdadi notified Flowers and
Hodges that they were suspended. Clark Decl. Ex. 14. During the meeting, which was recorded,
Colby informed Flowers and Hodges that Hodges controversial comments broke the law of the
First Amendment and that I really have no choice because Im just the manager of this facility
and the people who are higher up than me, say[] that it has broken the law. Id. at 1. When
asked who her superiors were, Colby referred to MTNs attorneys and its board of directors. Id.
There is no evidence of record that Colby met with MTNs attorneys or its board of directors
before suspending Flowers. Colby Aff. 18-19.
Flowers and Hodges subsequently utilized MTNs grievance procedure to appeal their
4 Flowers has voluntarily dismissed Gail Plewacki as a defendant, and he is no longer
pursuing his malicious prosecution and defamation claims. Pl.s Mem. in Oppn to Mot. for
Summ. J. [Docket No. 23] at 22 n.6, 32.
6
suspension. Id. 29. On June 9 and 10, 2005, a hearing was held before a panel of MTNs
Board of Directors. Id. 30. The panel reversed Colbys decision to suspend Flowers and
Hodges. Id. 32. Flowers filed the instant Complaint on October 6, 2005. Flowers alleges
Defendants violated 42 U.S.C. 1983 by retaliating against him for exercising his First
Amendment rights.4
III. DISCUSSION
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion
for summary judgment, the Court views the evidence in the light most favorable to the
nonmoving party. Ludwig, 54 F.3d at 470. The nonmoving party may not rest on mere
allegations or denials, but must demonstrate on the record the existence of specific facts which
create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
B. Flowers First Amendment Retaliation Claim
1. Whether Hodges Comments Were Fighting Words
To prevail on his First Amendment retaliation claim under 42 U.S.C. 1983, Flowers
must show (1) he engaged in a protected activity, (2) the government official took adverse
7
action against him that would chill a person of ordinary firmness from continuing in the activity,
and (3) the adverse action was motivated at least in part by the exercise of the protected
activity. Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004). Defendants do not dispute that
Flowers has a First Amendment right to free speech on public access television. Defendants
argue, however, that Hodges comments on the Real State of the City program, when viewed in
the context of previous verbal attacks Flowers made against Samuels, were constitutionally
unprotected fighting words. Fighting words are those [words] which by their very utterance
inflict injury or tend to incite an immediate breach of the peace. Chaplinsky v. New
Hampshire, 315 U.S. 568, 572 (1942). Stated differently, fighting words are those that are likely
to cause an average addressee to fight. Buffkins v. Omaha, 922 F.2d 465, 472 (8th Cir. 1990),
citing Chaplinsky, 315 U.S. at 573.
Measured by this standard, there is a question of fact whether Hodges controversial
comments were fighting words. Hodges, in reference to Samuels, stated that we have to kill the
house niggers, we gotta kill em, and thats what were doing on this show, we trying to kill the
house nigger, and we have to get in power. Clark Decl. Ex. 1 at 17. While Hodges word
choice was crass, the language of the political arena . . . is often vituperative, and inexact.
Watts v. United States, 394 U.S. 705, 708 (1969). [I]n public debate . . . citizens must tolerate
insulting, and even outrageous, speech in order to provide adequate breathing space to the
freedoms protected by the First Amendment. Madsen v. Womens Health Ctr., 512 U.S. 753,
774 (1994) (quotation marks and citation omitted); see also Watts, 394 U.S. at 705, 708 (holding
that draft protestors statement that [i]f they ever make me carry a rifle the first man I want to
get in my sights is L. B. J. was a kind of very crude offensive method of stating a political
opposition to the President).
Hodges controversial comments must be considered in context, since verbs such as
5 Defendants at times use the terms fighting words and illegal threats interchangeably
when referring to Hodges controversial comments. See Defs. Mem. in Supp. of Mot. for
Summ. J. [Docket No. 13] at 11. However, fighting words and true threats are separate
categories of unprotected speech. Whereas fighting words tend to incite an immediate breach of
the peace, true threats are statements that a reasonable person would interpret . . . as a serious
expression of an intent to cause a present or future harm. Doe v. Pulaski County Special School
Dist., 306 F.3d 616, 622 (8th Cir. 2002). Defendants have not specifically argued that Hodges
comments were true threats, and the Court finds no basis in the record for such an argument.
8
kill or destroy are often used in a figurative rather than a literal sense. See Time, Inc. v.
Johnston, 448 F.2d 378, 384 (4th Cir. 1971) (stating that no one reading statement that Bill
Russell destroyed another basketball player would conclude that speaker meant that Russell
actually and literally destroyed the other player). Considering in context all of Hodges
comments on the Real State of the City program, Defendants have failed to establish as a matter
of law that Hodges controversial comments constitute fighting words.5 Shortly after his
controversial comments, Hodges declared the ultimate solution is we got to unify, we gotta start
off by voting, vote the person, not the party, and just remember the solution, you gotta get out
and vote . . . and please if you see a house negro deal with them appropriately, call them out, do
not allow these people to continue to sell us out. Id. at 18-19. In light of Hodges repeated
emphasis on voting, the average viewer could have construed Hodges controversial comments
as a crude way of encouraging viewers to criticize and vote against certain City officials, such as
Samuels, rather than literally kill them. This conclusion is corroborated by the absence of
evidence that Hodges comments incited any viewers to commit violent acts against Samuels.
Whether Hodges comments are constitutionally unprotected is a subjective judgment for a fact
finder.
Arguing against this result, Defendants contend that Hodges controversial comments
must be viewed in the context of Flowers previous verbal attacks on Samuels. Defendants
claim that Flowers previously stated that Samuels legs would have been broken if he had
9
spoken of his big house ancestry in another city. Defs. Mem. in Supp. of Mot. for Summ. J. at
2. However, there is no evidence regarding when this statement was made or the circumstances
in which it was made. Accordingly, Defendants have failed to show as a matter of law that
Hodges controversial comments were constitutionally unprotected fighting words.
2. Retaliatory Acts
a. Inducing Flowers Suspension
Defendants argue that even if Hodges controversial comments were protected by the
First Amendment, there is no evidence that Defendants violated Flowers First Amendment
rights. Defendants contend that Colby independently decided to suspend Hodges and Flowers.
However, Kambui avers that during the meeting at City Hall, Colby committed to suspending
Hodges and Flowers as a result of pressure from Ostrow and Samuels. Kambuis testimony
creates a genuine issue of material fact as to whether Ostrow and Samuels caused Colby to
suspend Flowers. Suspension is an adverse action that would chill a person of ordinary firmness
from continuing to criticize City Council members on MTN.
Further, Flowers and Hodges roles as vocal critics of Samuels during an election
campaign supports an inference that Samuels and Ostrow were motivated by a desire to chill
Flowers and Hodges criticism. Additionally, a jury may choose to credit Kambuis account of
the May 17, 2005, meeting, rather than Samuels and Ostrows denial that they demanded that
Colby take disciplinary action. The conflicting testimony on this issue creates a further genuine
issue of material fact regarding whether Ostrow and Samuels retaliated against Flowers by
causing his suspension.
b. Samuels Police Reports and Charge of Discrimination
Flowers also contends that Samuels retaliated against him in violation of 42 U.S.C.
1983 by contacting City police on May 17, 2005, to report that Hodges comments caused
10
Samuels to be concerned for his safety. Defendants argue that imposing 1983 liability for
filing a police report that does not result in criminal charges has a chilling effect on government
officials who believe they have been threatened. Both parties cite the Supreme Courts recent
decision in Hartman v. Moore, 547 U.S. 250 (2006). The Hartman Court held that a plaintiff
asserting retaliatory prosecution must plead and prove the absence of probable cause. 547 U.S.
at 265-66. The Supreme Court reasoned that where a plaintiff complains that a government
official induced a prosecutor to act, a plaintiff must show a causal connection between the
retaliatory animus of one person and the action of another. Id. at 262. Since [e]vidence of a
[government officials] animus does not necessarily show that the [official] induced the action of
a prosecutor who would not have pressed charges otherwise, the Court concluded that the
absence of probable cause would serve to link the allegedly retaliatory official to a prosecutor
whose action has injured the plaintiff. Id. at 263.
The Hartman Court did not address whether a state official can be liable under 42 U.S.C.
1983 for retaliatory inducement of a criminal investigation where no charges are filed. Id. at
262 n.9. Whether the City police took action in response to Samuels concern is debatable.
Assuming arguendo there was an action, Hartman still requires Flowers to show a causal
connection between Samuels alleged retaliatory animus and the actions of the City Police
Department. Under the logic of Hartman, evidence of Samuels alleged retaliatory animus does
not necessarily show that Samuels induced the City Police Department to take actions it would
not have otherwise taken. Therefore, the issue is what showing is necessary to satisfy the causal
connection between Samuels alleged retaliatory animus and any action taken by the City Police
Department.
The Court finds that Flowers must show that Samuels used his position as a Council
Member to induce the Police Department to take actions it would not otherwise have taken.
11
Flowers has not adduced any evidence on this issue. Flowers complains that Samuels used his
role as Council Member to urge a criminal prosecution against Flowers, in violation of 1983.
However, any citizen can report perceived criminal activity to the police. The mere fact that
Samuels is a City Council member does not automatically show that Samuels misused his
position by filing a police report.
Flowers next argues that Samuels should be liable under 1983 because he filed a police
report when there was no probable cause for any criminal charges. However, Flowers argument
would essentially require that government officials like Samuels make their own probable cause
determination before reporting perceived threats. This would have a chilling effect on
government officials who are concerned for their safety, and there is no basis in the law for
imposing such a requirement.
Flowers also argues that Samuels used his position to induce the City Police Department
to refer the matter to the St. Paul City Attorneys office. However, Flowers has not presented
any evidence regarding the City Police Departments policy or custom regarding when a matter
should be referred for possible prosecution. Therefore, Flowers can not show that Samuels
position as a City Council member induced the City Police Department to take actions it would
not have taken were Samuels not a City Council member. As a result, Flowers can not rely on
Samuels May 17, 2005, police report, or the subsequent investigation, as the basis of a
retaliation claim.
Flowers also argues Samuels retaliated against him in August 2005 by filing a police
report alleging that Flowers had assaulted him in a City Park. Pl.s Mem. in Oppn to Mot. for
Summ. J. at 14-15, 23. However, this incident is too remote from the May 2005 Real State of
the City program to support an inference that Samuels was retaliating for Flowers and Hodges
comments on that program. Finally, Flowers argues Samuels retaliated against him by filing a
12
charge of discrimination against MTN with the Citys Department of Civil Rights. However,
there is no evidence in the record regarding the basis of Samuels charge and its impact on
Flowers. Accordingly, Flowers can not rely on Samuels charge of discrimination as evidence of
retaliation.
3. Qualified Immunity
Defendants argue that even if Flowers has presented sufficient evidence of First
Amendment retaliation, Samuels and Ostrow are entitled to summary judgment on the basis of
qualified immunity. Whether a given set of facts entitles the official to summary judgment on
qualified immunity grounds is a question of law. Greiner v. City of Champlin, 27 F.3d 1346,
1352 (8th Cir. 1994). In Saucier v. Katz, 533 U.S. 194, 200-01 (2001), the Supreme Court
clarified the standard courts must apply in conducting the qualified immunity analysis. The first
question is whether, taken in the light most favorable to the plaintiff, the facts alleged show the
government officials conduct violated a constitutional right. Id. at 201. This Court has found
sufficient evidence that Samuels and Ostrows conduct violated Flowers First Amendment
rights to deny summary judgment. The second question is whether the constitutional right at
issue was clearly established. Id. For a constitutional right to be clearly established, its
contours must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right. Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quotation marks and
citations omitted). The Eighth Circuit applies a flexible standard, requiring some, but not
precise factual correspondence with precedent, and [application of] general, well-developed legal
principles. Burton v. Richmond, 276 F.3d 973, 976 (8th Cir. 2002) (quotation marks and
citations omitted).
Defendants do not dispute that Flowers First Amendment right to free speech on public
access television without facing retaliation from government officials was clearly established in
13
May 2005. Therefore, the dispositive issue for Defendants qualified immunity argument is
whether a reasonable jury could find that Samuels and Ostrow violated Flowers First
Amendment rights by allegedly pressuring Colby to suspend Flowers. The resolution of this
issue turns on Samuels and Ostrows motive. As discussed above, there is a genuine issue of
material fact regarding whether Samuels and Ostrow pressured Colby to suspend Flowers and
Hodges in order to chill Flowers and Hodges political criticism. A reasonable government
official would have known that inducing Flowers and Hodges suspension to suppress their
political criticism violated Flowers right to free speech on public access television. Therefore,
Samuels and Ostrow are not entitled to qualified immunity.
Defendants argument to the contrary is unpersuasive. Defendants argue that Samuels
and Ostrow could reasonably have perceived that Hodges controversial comments were fighting
words. However, it is well established that in public debate . . . citizens must tolerate insulting,
and even outrageous, speech in order to provide adequate breathing space to the freedoms
protected by the First Amendment. Madsen, 512 U.S. at 774; see also New York Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964) (noting existence of a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wide-open, and that it
may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government
and public officials). When considered together with Hodges statements that citizens should
deal appropriately with so-called house negroes by criticizing them and voting against them, a
reasonable government official would have known that Hodges controversial comments were
not fighting words. Further, eleven days had elapsed since the original airing of the program and
the May 17, 2005, meeting where Samuels and Ostrow allegedly pressured Colby to suspend
Flowers and Hodges. This passage of time undercuts Defendants argument that a reasonable
government official could have concluded that Hodges controversial comments amounted to
14
fighting words likely to incite an immediate breach of the peace. Samuels and Ostrow are not
entitled to summary judgment on the basis of qualified immunity.
4. Monell Liability
Flowers also asserts a 1983 claim against the City. The Supreme Court in Monell v.
Department of Social Services of the City of New York, 436 U.S. 658, 694 (1978), held that
local governments are not liable under 1983 for injuries inflicted solely by their employees or
agents. Instead, it is when execution of a governments policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury that the government as an entity is responsible under 1983. Id.
Flowers has not identified any specific City policy that caused his suspension. Instead,
he argues that Ostrow, Samuels, and Plewacki (who allegedly threatened MTNs funding), were
chief policymakers and therefore the City is liable for their conduct. Municipal liability may
attach based on the single act or decision of a municipal decisionmaker if the decisionmaker
possesses final authority to establish municipal policy over the subject matter in question.
Speer v. City of Wynne, 276 F.3d 980, 987 (8th Cir. 2002). Flowers has not presented any
evidence that Samuels, Ostrow, or Plewacki had final authority to establish City policy regarding
the Citys relationship with MTN. Instead, evidence in the record shows that the City Council
has final authority to establish City policy and funding regarding MTN. Despite Flowers
speculative assertions, nothing in the record evidences the City Councils sanction of the conduct
of Ostrow, Samuels, or Plewacki in allegedly pressuring Colby to suspend Flowers and Hodges.
Therefore, Flowers can not show that Samuels, Ostrow, and Plewacki were final policymakers
for the City.
Flowers also conclusorily asserts that the City did nothing to control its high-ranking
officials. Pl.s Mem. in Oppn to Mot. for Summ. J. at 32. Presumably Flowers is claiming that
15
the City had an official custom that allowed City officials to violate First Amendment rights of
citizens who criticized City officials. To establish the existence of a municipal custom, a
plaintiff must satisfy three requirements:
1. The existence of a continuing, widespread, persistent pattern of unconstitutional
misconduct by the governmental entitys employees;
2. Deliberate indifference to or tacit authorization of such conduct by the
governmental entitys policymaking officials after notice to the officials of that
misconduct;
3. The plaintiffs injury by acts pursuant to the governmental entitys custom, i.e.,
proof that the custom was the moving force behind the constitutional violation.
Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (citation omitted). Since Flowers has
not addressed how these elements are satisfied, Flowers can not survive summary judgment on
any of his theories of Monell liability.
16
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Defendants City of Minneapolis, Don Samuels, and Paul Ostrows Motion for
Summary Judgment [Docket No. 8] is GRANTED regarding the City, AND
DENIED as to Defendants Ostrow and Samuels; and
2. Defendants City of Minneapolis, Gail Plewacki, and John Does 1-5 are
DISMISSED.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: September 6, 2007.
 

 
 
 

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Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report


 

 

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Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.