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Pena v. City of Worthington: US District Court :1983 | ZONING - Questions of fact regarding excessive force; immunity denied; dance hall license revocation OK

and BRADLEY CHAPULIS, individually
and in their official capacities,
Civil No. 07-1578 (JRT/FLN)
Manuel P. Guerrero, GUERRERO LAW OFFICE, 148 Farrington Street,
St. Paul, MN 55102-2104, for plaintiffs.
Jason M. Hiveley and Jon K. Iverson, IVERSON REUVERS, LLC, 9321
Ensign Avenue South, Bloomington, MN 55438, for defendants.
Plaintiffs Antonio Pena and Jesus Leon, Sr. own and operate the Club de Leones, a
restaurant and nightclub located in Worthington, Minnesota. Plaintiffs brought this
action under 42 U.S.C. 1983, alleging that defendants violated their substantive due
process rights by revoking their dance club license, and that Worthington Police Sergeant
Tim Gaul used excessive force against Leon during an arrest. Plaintiffs also allege that
1 Defendant Eshlemans name appears to be misspelled in the caption of the Complaint,
and therefore in the Courts docket, as both parties refer to Eshleman throughout their briefing.
The Court will order the court caption to be amended to reflect the true spelling of defendants
name to Armand Eshleman.
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defendants Eshleman and Chapulis were negligent in issuing plaintiffs a permit for
building renovations because the building was not suitable for a dance club. This case is
now before the Court on defendants motion for summary judgment. For the reasons
given below, the Court grants in part and denies in part defendants motion.
In March 2004, defendant City of Worthington sold a commercial property at 415
Ninth Street in Worthington, Minnesota, to a developer for 00. The developer made
substantial renovations and sold the building in October 2005 to plaintiffs Antonio Pena
and Jesus Leon, Sr. for 5,000. Plaintiffs intended to open a restaurant and nightclub
in the building, and they continued renovations on the building after the purchase,
investing approximately 5,000 in additional renovations and equipment. The City of
Worthington issued building work permits for the construction. Plaintiffs completed
renovations in July 2006 and, one month later, opened the Club de Leones restaurant and
nightclub (the Club).
Worthington Police began receiving complaints of loud music from the Club
shortly after it opened to the public. Police received 20 loud music complaints regarding
the Club between August 19, 2006 and April 1, 2007. Many of the complaints were
made by a young family living next door to the night club. On February 12, 2007, city
officials met with Leon to discuss the noise issue. The next day, defendant Armand
2 For purposes of this summary judgment motion, the Court views the facts and evidence
in a light most favorable to plaintiffs, the non-moving party.
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Eshleman, the Worthington building official, and defendant Bradley Chapulis,
Eshlemans supervisor, met with Leon at the Club to discuss ways to abate the noise.
Eshleman and Chapulis suggested that Leon contact an acoustics expert, and agreed to
compile a list of experts who might be able to help plaintiffs. According to plaintiffs,
Eshleman and Chapulis then offered Leon for the property, and told Leon that if he
did not pay his taxes the City would simply take the property. Plaintiffs later contacted
one of the experts, who estimated that soundproofing the Club would cost between
,000 and ,000.
At approximately 11 p.m. on March 16, 2007, Worthington Police Officer Ted
Buhner responded to a complaint of loud music coming from the Club. Based on his
observations, Buhner issued Leon a citation for violation of the public nuisance
ordinance. At 11:47 p.m., Worthington Police received a second loud music complaint
regarding the Club. Defendant Tim Gaul, a sergeant with the Worthington Police
Department, responded to the call. Gaul knew that the noise complaint was the second
one received within an hour. Gaul parked about 50 feet from the Club. From that
distance, Gaul could hear loud music coming from the Club in violation of the Citys
noise ordinance. Gaul and Worthington Police Officer Gertsema then entered the Club in
search of the owner.
Gaul located Leon and asked him to go with the officers to the entryway of the
building. According to Leon, Gaul told him to shut down the club. Gaul stated in an
affidavit that he asked Leon to turn down the music. According to Gaul, Leon responded
Fuck you, my lawyer said that I dont have to, and Im not going to. (Gaul Aff. 5.)
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Gaul told Leon again to turn down the music, and Leon refused to comply. Leon told
Gaul that they should go outside to see how audible the music was from outside the club.
According to Leon, Gaul reacted angrily because he believed Leon was making fun of
him. Gaul then handcuffed Leon and led him toward the exit door of the Club. Leon
alleges that as Gaul was taking Leon out of the building, Gaul pushed Leon forcefully
into a door jam. Both Gaul and Officer Gertsema deny that Gaul shoved or pushed Leon
after Leon was handcuffed.
Gaul placed Leon in a squad car and drove him to the local jail. Leons handcuffs
were removed once he arrived at the jail. Leon testified that he was able to move his
shoulder when the handcuffs were removed but that he experienced pain in his shoulder
and neck. Leon alleges that as a result of Gauls use of force, he suffered a dislocated left
shoulder as well as bruises on his upper back, and has continued to experience shoulder
and back pain. Leon has also experienced mental health problems following the incident.
On May 29, 2007, the Worthington City Council held a public hearing on the
Clubs noise issues. Plaintiffs argued at the meeting that they should not have been
granted a license to operate a nightclub if the building was not suited for loud music.
Plaintiffs attorney noted that many of the noise complaints had come from the young
family next door, and stated that his clients were not willing to put any additional money
into the building for sound proofing. The Worthington Director of Public Safety, Mike
Cumiskey, also spoke to the City Council about the noise issues, presenting a synopsis of
the noise complaints regarding the Club. Based on evidence presented at the hearing, the
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City Council voted to revoke plaintiffs dance club license, noting that plaintiffs had no
apparent intention to try to comply with the noise ordinance.
Leon and Pena filed an amended complaint against defendants on July 10, 2007.
Count I of plaintiffs complaint alleges defendant Gaul used excessive force by shoving
Leon into a door after Leon was already handcuffed. Count II alleges that Eshleman,
Chapulis, and the City of Worthington violated plaintiffs substantive due process rights
by revoking plaintiffs dance club license. Count III alleges that Eshleman, Chapulis, and
the City of Worthington were negligent in allowing plaintiffs to renovate the building and
issuing plaintiffs a license to operate a restaurant and dance club, when in fact the
building was not appropriately constructed for loud sound.3 Defendants have filed the
instant motion for summary judgment.
Summary judgment is appropriate in the absence of any genuine issue of material
fact and when the moving party can demonstrate that it is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could cause a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A court considering a motion for summary judgment must view the facts in the
3 Plaintiffs also alleged in Count IV of their Amended Complaint that city officials
revoked their dance club license in retaliation for this lawsuit. Plaintiffs have now withdrawn
that claim.
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light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A. Excessive Force under the Fourth Amendment
The use of force is excessive under the Fourth Amendment if it is not objectively
reasonable under the particular circumstances. Greiner v. City of Champlin, 27 F.3d
1346, 1354 (8th Cir. 1994). When considering the particular circumstances, courts
consider factors including the severity of the crime at issue, whether the suspect posed an
immediate threat to the safety of the officers or others, and whether he actively resisted
arrest or attempted to evade arrest by flight. Winters v. Adams, 254 F.3d 758, 765 (8th
Cir. 2001). Force that later seems unnecessary does not violate the Fourth Amendment if
it was reasonable at the time, giving consideration to the fact that the officer was forced
to make a split-second judgment[] in a tense, uncertain, and rapidly evolving
situation. Graham v. Connor, 490 U.S. 386, 396-97 (1989).
Leon alleges that Gaul pushed him forcefully into a doorframe as he was being led
out of the Club to Gauls squad car in handcuffs. While defendants dispute Leons
version of events, viewing the facts in a light most favorable to Leon, a jury could
reasonably conclude that Gauls actions were excessive under the circumstances. The
fact that Leon was in handcuffs, walking passively toward the Club exit in front of Gaul,
suggests that Leon posed no immediate threat to the safety of the officers or others at the
time Gaul allegedly used force. The Court finds no evidence in the record to suggest that
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Leon actively resisted Gauls attempt to arrest him, and the crime at issue the violation
of a sound ordinance was essentially non-violent in nature. Based on these facts, a jury
may reasonably conclude that Gauls use of force was a gratuitous act of violence against
a passive, helpless suspect, and was thus not objectively reasonable under the
Gaul argues that he is nonetheless entitled to summary judgment because Leon
suffered only de minimis injuries as a result of the force. The Court must consider the
result of the use of force in addition to the circumstances surrounding the use of force in
determining whether the force was excessive. Foster v. Metro. Airports Commn, 914
F.2d 1076, 1082 (8th Cir. 1990). [A] de minimis use of force or injury is insufficient to
support a finding of a constitutional violation. Crumley v. City of St. Paul, 324 F.3d
1003, 1007 (8th Cir. 2003). [A]llegations of pain as a result of being handcuffed,
without some evidence of more permanent injury, are [not] sufficient to support [a] claim
of excessive force. Foster, 914 F.2d at 1082.
Here, Leon alleges that he dislocated his shoulder as a result of Gaul shoving him
forcefully into a door jam. Defendants counter that there is no evidence in the record to
support Leons claim that he suffered such an injury, noting in particular that Leons
treating physician on the night of the incident never described the shoulder as being
dislocated. However, viewing the facts in Leons favor, this Courts review of Leons
medical records adequately supports Leons claim that Gauls use of force partially
dislocated his left shoulder. Leons medical report dated March 17, 2007, states that
Leons left shoulder was in a subluxed position and later noted a subluxation of the
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left shoulder. (Pl.s Ex. E.) Subluxation is generally defined as a partial or incomplete
dislocation. See, e.g., Stedmans Medical Dictionary (5th ed. 1982). While a partial
dislocation is admittedly not a grave physical injury, the Court finds that this injury
particularly when considered alongside the allegedly gratuitous use of force after Leon
was in handcuffs constitutes more than a mere de minimis injury, and is thus sufficient
to support Leons excessive force claim. See Wertish v. Krueger, 433 F.3d 1062, 1067
(8th Cir. 2006) (finding minor scrapes and bruises and the less-than-permanent
aggravation of a prior shoulder condition that resulted from force that was required to
handcuff and arrest plaintiff were de minimis). While the nature of the physical injury
here may result in only a minimal damages award, that question is for a jury, and not this
Court, to decide. Accordingly, the Court finds sufficient evidence in the record to create
a genuine issue of material fact on Leons Fourth Amendment claim.
B. Qualified Immunity
Gaul next argues that even if Leon has sufficient evidence to support his excessive
force claim, Gaul is entitled to qualified immunity. The defense of qualified immunity is
available to public officials who have not violated clearly established statutory or
constitutional rights of which a reasonable person would have known. Young v. Selk,
508 F.3d 868, 871 (8th Cir. 2007). The defense allows officers to make reasonable
errors so that they do not always err on the side of caution. Habiger v. City of Fargo, 80
F.3d 289, 295-96 (8th Cir. 1996) (internal quotations and citations omitted). The Court
conducts a two-step analysis to determine whether qualified immunity is appropriate.
First, the Court determines whether the facts alleged, viewed in the light most favorable
- 9 -
to plaintiff, show that the officers conduct violated a constitutional right. Saucier v.
Katz, 533 U.S. 194, 201 (2001). As outlined above, Leon has set forth sufficient
evidence to satisfy this step. Once the Court determines that a constitutional violation
has occurred, it then asks whether the right in question was clearly established. Id. The
Court now turns to that question.
The right to be free from excessive force is a clearly established right under the
Fourth Amendments prohibition against unreasonable seizures of the person. Guite v.
Wright, 147 F.3d 747, 750 (8th Cir. 1998). The salient question is whether the state of the
law at the time of the violation gave officers fair warning that their alleged conduct was
unconstitutional. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002). Viewing the facts in a
light most favorable to Leon as the Court must in assessing this motion, the record shows
that Sergeant Gaul forcefully shoved a compliant, non-resistant suspect into a door jam,
well after he had been handcuffed and with sufficient force to cause a partial dislocation
of the suspects shoulder. The Court finds that a reasonable officer would be on notice
that the use of such force in these circumstances would violate the plaintiffs clearly
established constitutional rights. See Mayard v. Hopwood, 105 F.3d 1226, 1227-28 (8th
Cir. 1997) (reversing grant of summary judgment on qualified immunity grounds on
excessive force claim where the plaintiff alleged she was slapped in the face and punched
in the chest while being transported in a squad car in handcuffs). Accordingly, the Court
finds that Gaul is not entitled to qualified immunity on Leons excessive force claim, and
denies Gauls motion for summary judgment with respect to that claim.
- 10 -
Plaintiffs next argue that defendants Eshleman, Chapulis, and the City of
Worthington violated their substantive due process rights by revoking their dance club
license. To prevail on a substantive due process claim, plaintiff must first establish a
protected property interest to which the Fourteenth Amendments due process protection
applies. Bituminous Materials, Inc. v. Rice County, 126 F.3d 1068, 1070 (8th Cir. 1997)
(internal citations and quotations omitted). A protected property interest is a question of
state law. Id. Such an interest must be a legitimate claim to entitlement, rather than a
mere subjective expectancy. Id. (quoting Board of Regents v. Roth, 408 U.S. 564, 577
Here, plaintiffs concede that their substantive due process claim is akin to a land
use permit claim, and that the applicable legal standard for such a claim requires
plaintiffs to show more than that the government decision was arbitrary, capricious, or
in violation of state law. Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102,
1104 (8th Cir. 1992). Such claims can succeed only if the evidence demonstrates truly
irrational governmental actions. Id. (citing Lemke v. Cass County, Neb., 846 F.2d 469,
470-71 (8th Cir. 1987)). An example of such irrationality might be attempting to apply a
zoning ordinance only to persons whose names begin with a letter in the first half of the
alphabet. Id. Even allegations of bad faith enforcement of an invalid zoning ordinance
generally do not state a substantive due process claim. Bituminous Materials, Inc., 126
F.3d at 1070.
- 11 -
Viewing the facts in a light most favorable to plaintiffs, the Court finds
insufficient evidence in the record to suggest that the Citys decision to revoke plaintiffs
dance club license was truly irrational. The minutes from the City Council hearing show
that the City heard evidence from both plaintiffs and the City regarding noise issues with
the Club. The City Council considered that the Club had received no fewer than 20 noise
citations between August 2006 and April 2007. The Council also noted plaintiffs
apparent reluctance to add further sound proofing given the additional costs, and
plaintiffs statement that they should not have been given a dance license if the building
was not in fact conducive to such sound. In sum, the record suggests that the City
Council had a valid basis upon which to revoke plaintiffs dance license on grounds that
plaintiffs had repeatedly violated city noise ordinances. Plaintiffs have identified nothing
in the record to suggest that the revocation was irrational. Accordingly, the Court grants
defendants motion for summary judgment on plaintiffs substantive due process claim.
Finally, plaintiffs allege that Eshleman, Chapulis, and the City were negligent in
issuing plaintiffs a building permit, knowing that plaintiffs intended to open a dance club
in the building, when in fact the building was not suitable for the operation of a dance
club because it was not appropriately insulated for sound. Defendants contend that the
issuance and enforcement of building permits and codes benefit the general public and
thus cannot form the basis for a negligence action. See Cracraft v. City of St. Louis Park,
279 N.W.2d 801, 803-04 (Minn. 1979) ([G]eneral duties owed to the entire public rather
than a specific class of persons cannot form the basis of a negligence action.); Hoffert v.
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Owatonna Inn Towne Motel, Inc., 199 N.W.2d 158, 160 (Minn. 1972) ([A]n individual
who is injured by any alleged negligent performance of the building inspector in issuing
the permit does not have a cause of action.). Eshleman and Chapulis further argue that
they are entitled to official immunity on plaintiffs negligence claim.
The Court agrees that Eshleman and Chapulis are entitled to official immunity on
this claim.4 Under Minnesota law, a public official is entitled to official immunity from
state law claims when the officials duties require the exercise of discretion or judgment.
Johnson v. Morris, 453 N.W.2d 31, 41 (Minn. 1990). [A] public official charged by law
with duties which call for the exercise of his judgment or discretion is not personally
liable to an individual for damages unless he is guilty of a willful or malicious wrong.
Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988). For purposes of official
immunity, malice is the intentional doing of a wrongful act without legal justification or
excuse, or, otherwise stated, the willful violation of a known right. Rico v. State, 472
N.W.2d 100, 107 (Minn. 1991). Minnesota courts have held that a municipal employees
decision to issue a building permit is discretionary in nature. See, e.g., Anderson v. City
of Minneapolis, 178 N.W.2d 215, 217 (Minn. 1970) (finding that the act of an employee
of the city in issuing the building permit in a doubtful case involved an exercise of
4 Because the Court concludes that defendants are entitled to official immunity on
plaintiffs negligence claim, the Court need not decide whether plaintiffs claim is foreclosed
under Minnesota law on a public benefit theory. The Court notes, however, that plaintiffs
negligence claim appears to be barred under the unequivocal language of Hoffert, 199 N.W.2d at
160. Further, the Court finds insufficient evidence to suggest that the conduct of Eshleman or
Chapulis voluntarily created a special duty toward plaintiffs. See Cracraft, 279 N.W.2d at 806
(setting forth factors to consider in determining whether the special duty doctrine applies to a
- 13 -
discretion that entitled the employee to official immunity); McNamara v. McLean, 531
N.W.2d 911, 914 (Minn. Ct. App. 1995) (This court has previously granted immunity
where the decision-making process being evaluated is similar to that involved in the
issuance of a building permit.).
Plaintiffs contend that Eshleman and Chapulis acted with malice in issuing the
building permits, pointing to the following: defendants failure to warn plaintiffs that the
building was not conducive to music and dancing; making no efforts to placate adjoining
tenants who complained of the noise; and offering Leon for the property, and telling
him that if he failed to pay his taxes the City would take the property. Even viewing this
evidence in a light most favorable to plaintiffs, the Court is not persuaded that it shows
that defendants decision to issue plaintiffs a building permit was unlawful or a willful
violation of plaintiffs rights. As such, a reasonable jury could not conclude from the
facts presented here that defendants acted with malice.
The Court thus concludes that Eshleman and Chapulis are entitled to official
immunity on plaintiffs negligence claim. Because these employees are immune from
plaintiffs negligence claim, the Court also finds that the City of Worthington is entitled
to vicarious official immunity on that claim. See Wiederholt v. City of Minneapolis, 581
N.W.2d 312, 316 (Minn. 1998) (When applicable, vicarious official immunity protects
the government entity from suit based on the official immunity of its employee.). For
these reasons, the Court grants defendants motion for summary judgment on plaintiffs
negligence claim.
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This case will be placed on the Courts next available trial calendar.
Based on the foregoing, all the files, records and proceedings herein, IT IS
HEREBY ORDERED that defendants Motion for Summary Judgment [Docket No. 18]
is GRANTED in part and DENIED in part, as follows:
1. Defendants Motion is DENIED at to plaintiff Leons excessive force
claim (Count I).
2. Defendants Motion is GRANTED as to plaintiffs remaining claims.
Counts II, III, and IV of plaintiffs Amended Complaint are DISMISSED with
3. Defendants City of Worthington, Armand Eshleman and Bradley Chapulis
are DISMISSED from this action.
IT IS FURTHER ORDERED that the court caption shall be AMENDED to
reflect the true spelling of defendants name from Eshlman to Eshleman.
DATED: August 7, 2008 s/ John R. Tunheim _
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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