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Neudecker v. Shakopee Police Dep't et al.: US District Court:1983 - can't be malice in charging second offense with a lesser offense than evidence supports

To avoid confusion, the Court will refer to M 1 ichael Neudecker by his last name and to
James and Gertrude Neudecker by their first names.
Friendship Manor Health Care Center;
Case No. 07-CV-3506 (PJS/JJG)
Michael Neudecker, plaintiff pro se.
Jeffrey A. Egge and Jon K. Iverson, IVERSON REUVERS, LLC, for defendants City of
Shakopee and Shakopee Police Department.
defendant Quality Lifestyles, Inc., d/b/a Friendship Manor Health Care Center.
James R. Andreen, ERSTAD & RIEMER, PA, for defendants Scott County, Scott County
Department of Human Services, and Laurie McMillen.
Plaintiff Michael Neudecker is not on the best of terms with his parents, James and
Gertrude Neudecker.1 James and Gertrude live in Friendship Manor Health Care Center, a
nursing home run by defendant Quality Lifestyles, Inc. Friendship Manor is located in Shakopee,
a city in Scott County, Minnesota.
2The City of Shakopee also asks the Court to find that Neudecker is a vexatious litigant
and to enter an order barring him from filing any new lawsuits in this District without the prior
authorization of a magistrate judge. Shakopee Defs. Resp. to Pl. Obj. to Mar. 25, 2008 R&R
[Docket No. 69]. The Court declines to enter such an order at this time.
In August 2005, the Shakopee Police Department cited Neudecker for disorderly conduct
in connection with a vile letter that Neudecker sent to his parents. The charges were eventually
dismissed. Neudecker contends that the citation was unlawful, and that all of the defendants
played some role in the events leading up to the issuance of the citation. Neudecker brings this
suit to recover damages for the injuries that he allegedly suffered as a result of being cited.
Defendants fall into three categories. The first category includes only one defendant,
Quality Lifestyles, Inc. (whom the Court will refer to as Friendship Manor). The second
category includes defendants Scott County, the Scott County Department of Human Services,
and Laurie McMillen, an employee of the Scott County Department of Human Services
(collectively, the Scott County defendants). The third category includes defendants the City of
Shakopee and the Shakopee Police Department (collectively, the Shakopee defendants).
Friendship Manor moves to dismiss the claims against it under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. In a Report and Recommendation (R&R) dated
November 27, 2007, Magistrate Judge Jeanne J. Graham recommended granting the motion
[Docket No. 47]. In that R&R, Judge Graham also recommended denying a motion by
Neudecker to amend his complaint.
The Scott County and Shakopee defendants have moved separately to dismiss the claims
against them for failure to state a claim or for summary judgment.2 Judge Graham recommended
granting summary judgment to the Scott County and Shakopee defendants in a second R&R,
dated March 25, 2008 [Docket No. 66].
Neudecker objects to both R&Rs. The Court has reviewed de novo those portions of the
R&Rs to which Neudecker objects, as required by 28 U.S.C. 636(b) and Fed. R. Civ. P. 72(b).
Although the Court agrees with Judge Graham that defendants motions should be granted, the
Courts analysis differs somewhat from Judge Grahams. The Court also finds that, under the
circumstances, Neudeckers motion to amend his complaint should be granted. Accordingly, the
Court adopts the R&Rs only to the extent that they are consistent with this opinion.
In June 2005, Neudecker sued Friendship Manor and the City of Shakopee in Minnesota
state court. Egge Aff. Ex. 1 [Docket No. 44]. According to the complaint, when Neudecker
telephoned his father, James, at Friendship Manor in May and June 2004, Neudeckers mother,
Gertrude, hung up on him. Neudecker reported Gertrudes behavior to the staff at Friendship
Manor as well as to the Shakopee Police Department. The Department declined to follow up on
Neudeckers complaints. Egge Aff. Ex. 1 6; Buetow Aff. 2, 6 [Docket No. 42]. Around the
same time, Gertrude complained to the Shakopee police about Neudeckers abusive phone calls.
Buetow Aff. 3. Friendship Manor employees also complained to the Shakopee police that
Neudecker was verbally abusing his parents and Friendship Manor staff, one of whom requested
a police escort at the end of her shift because she feared Neudecker. Id. 4; Egge Aff.
Ex. 1 5-6, 9-10.
In his state-court complaint, Neudecker alleged that Friendship Manor violated his First
Amendment rights and other state-law rights by not following up on his complaints about
In support of its motion to dismiss, F 3 riendship Manor filed an affidavit of one of its
attorneys, Megan D. Hafner. Hafner Aff. [Docket No. 9]. Attached as exhibit 1 to Hafners
affidavit is an affidavit of Bruce Salmela that was filed in the state-court action that Neudecker
filed in June 2004. Salmelas state-court affidavit, in turn, has three exhibits, labeled exhibits A
through C. To avoid confusion with the two Salmela affidavits filed in this action, the Court
refers to exhibits A through C to the Salmela affidavit filed in the state-court action as Exhibits
1-A through 1-C to the Hafner affidavit.
Gertrude hanging up on him. Egge Aff. Ex. 1 8. Neudecker also alleged that police reports
filed with respect to his behavior resulted from discrimination against him and unlawful reprisal
by Friendship Manor and the City of Shakopee. Id. 5, 9-10. Neudeckers complaint was
dismissed by the state trial court in November 2005. Egge Aff. Ex. 2.
In early August 2005, Neudecker and his parents again came into conflict. James told
Friendship Manor staff that Neudecker had demanded money over the phone and had threatened
to break Jamess bed apart if James did not pay up. Salmela Aff. (Second) Ex. 1 [Docket
No. 43]. Neudecker followed up his oral threats with a letter dated August 3. Hafner Aff.
Ex. 1-B [Docket No. 9].3 The letter read:
James Neudecker:
I want my cemet[e]ry plot money mailed to me by Fri.
Aug. 12 or I will (1) sledg[e]hammer, hacksaw and sunder your
medical bed and, (2) will have Yves move back in with me, but
this time will have him sleep in Gertrudes bed in the master
He was probably fucked real good in his asshole in jail; so
no doubt has AIDS and Hepatitis A, B & C. I will therefore
encourage him to jack off, jerk off a lot in Gertrudes bed and have
his diseased wad[] splatter, spew onto the mattress box spring and
floor, wall and doors. This is because of Gertrudes obsessive
crazy fear of germs/disease.
4Salmela says that he faxed the letter to the Shakopee Police Department. Salmela Aff.
(First) 7; Hafner Aff. Ex. 1 3. But it is apparent from the fax cover sheet, together with
McMillens affidavit and the relevant police report, that Salmela faxed the letter to McMillen,
and McMillen then contacted the Shakopee Police Department. See Hafner Aff. Ex. 1-A; Egge
Aff. Ex. 4 at 2.
Please forward this to lawyer Berg as the coward you are
(having an attorney at your beck and call to beat up on your
disabled son) so that I can then turn this matter over to my attorney.
Much love,
Although the letter was directed to James, the letter was delivered to Friendship Manor in
an envelope addressed to Gertrude. Salmela Aff. (First) 5 [Docket No. 26]; Hafner Aff.
Exs. 1-B, 1-C. After she opened the letter, Gertrude showed it to Bruce Salmela, the
administrator of Friendship Manor. Salmela Aff. (First) 5. Gertrude and James asked Salmela
to do something about the letter. Id. 6.
Salmela faxed a copy of the letter to the Scott County Human Services Department and
asked whether Neudeckers letter qualified as a threat to a vulnerable adult. Hafner Aff.
Ex. 1-A.4 Defendant Laurie McMillen, a social worker employed by Scott County, received
Salmelas fax and reviewed the letter. McMillen Aff. 1-2 [Docket No. 35]. McMillen
concluded that the letter did not constitute maltreatment under the Vulnerable Adult Abuse Act
because it did not specifically physically threaten James. Id. 3. She nonetheless passed the
letter along to detective Angela Trutnau of the Shakopee Police Department for further
investigation. Id. 4; Egge Aff. Ex. 4 at 2.
A Shakopee police officer (presumably Trutnau) followed up by visiting Friendship
Manor. Salmela Aff. (First) 7. Trutnau then cited Neudecker on August 8, 2005 for disorderly
conduct in violation of Minn. Stat. 609.72. Egge Aff. Exs. 4-5. In a letter accompanying the
summons and citation, Trutnau said that the summons was being issued to you in reference to a
letter that you sent to your parents at Friendship Manor in Shakopee. Egge Aff. Ex. 5.
Neudecker pleaded not guilty to the charge on August 29, 2005, and the case was set for
trial in Scott County on December 19, 2006. On the day of trial, however, the prosecutor moved
to dismiss the charges because the government was experiencing certain witness issues, and
the court granted the motion. Egge Aff. Ex. 3 at 2:16-22. Neudecker then brought this suit.
A. Neudeckers Motion to Amend
Neudecker moves to amend his complaint. Mot. Leave Amend [Docket No. 20]. The
proposed amended complaint provides more detail about his claims against Friendship Manor
and separates the single malicious-prosecution claim in the original complaint into two separate
malicious-prosecution claims, one under 42 U.S.C. 1983 and the other under state law.
As a formal matter, Judge Graham recommended denying Neudeckers motion to amend
his complaint as futile. R&R Nov. 27, 2007 at 5. As a practical matter, though, Judge Graham
considered the allegations in both the original and amended complaints in addressing defendants
dispositive motions. Id. at 3-5; R&R Mar. 25, 2008 at 8. Moreover, the Shakopee defendants
directed their arguments for dismissal or summary judgment to Neudeckers amended complaint.
Shakopee Defs. Mem. Supp. Mot Dism. and S.J. at 6, 8 (Shakopee SJ Mem.) [Docket No. 41].
Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, [t]he court should freely
give leave [to amend] when justice so requires. Fed. R. Civ. P. 15(a)(2). Neudeckers amended
complaint is clearer than his original complaint; granting Neudeckers motion to amend would
not prejudice any defendant; and both Judge Graham and the Shakopee defendants addressed the
merits of the amended complaint. Under these circumstances, the Court grants Neudeckers
motion for leave to amend, and the Court treats the amended complaint attached to that motion as
the operative complaint in this matter.
B. Standard of Review
1. Friendship Manors Motion to Dismiss
Friendship Manor moves under Rule 12(b)(6) of the Federal Rules of Civil Procedure to
dismiss Neudeckers complaint for failure to state a claim. In evaluating such a motion, this
Court must accept as true the complaints factual allegations and then determine whether those
allegations establish that the plaintiff is entitled to relief. Schaaf v. Residential Funding Corp.,
517 F.3d 544, 549 (8th Cir. 2008). The plaintiff must provide
more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level, on
the assumption that all the allegations in the complaint are true
(even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). At the same time, detailed factual
allegations are not necessary to survive a motion to dismiss. Id. at 1964; see also Limestone
Dev. Corp. v. Village of Lemont, 520 F.3d 797, 803 (7th Cir. 2008) (Bell Atlantic must not be
2. Shakopee and Scott County Defendants Motions
The Shakopee defendants move to dismiss under Rule 12(b)(6) or, in the alternative, for
summary judgment under Rule 56. Shakopee Defs. Mot. Dism. at 1 [Docket No. 39]. The Scott
County defendants apparently mean to do the same: Although their motion is captioned Motion
for Summary Judgment and mentions only Rule 56, the supporting memorandum says that they
bring a motion to dismiss, or in the alternative, a motion for summary judgment . . . . Scott
County Defs. Mot. S.J. at 1 [Docket No. 32]; Scott County Defs. Mem. Supp. Mot. S.J. at 1
(Scott County SJ Mem.) [Docket No. 34].
The Shakopee and Scott County defendants base their arguments largely on material
outside of the complaint. The Court therefore agrees with Judge Graham that their motions
should be treated as motions for summary judgment. See R&R Mar. 25, 2008 at 4.
Summary judgment is appropriate if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A dispute over
a fact is material only if its resolution might affect the outcome of the suit under the governing
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a
fact is genuine only if the evidence is such that a reasonable jury could return a verdict for
either party. Ohio Cas. Ins. Co. v. Union Pac. R.R., 469 F.3d 1158, 1162 (8th Cir. 2006). In
considering a motion for summary judgment, a court must view the evidence and the inferences
that may be reasonably drawn from the evidence in the light most favorable to the non-moving
party. Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir. 2004).
C. Claims Against Friendship Manor
Counts 1 through 3 of Neudeckers amended complaint assert federal claims under 42
U.S.C. 1983 against all defendants. Count 4 raises a state-law malicious-prosecution claim
against all defendants.
Judge Graham recommended dismissal of Neudeckers state-law malicious-prosecution
claim against Friendship Manor because his original and amended complaints lack any
indication that Friendship [Manor] had any role in the decision to prosecute. R&R Nov. 27,
2007 at 5. The Court agrees. Neudecker alleges only that Salmela (Friendship Manors
administrator) reported Neudeckers behavior and provided Neudeckers letter to the Shakopee
Police Department. Amend. Compl. 6-7, 14, 17 [Docket No. 20]. This action by Salmela
cannot support a malicious-prosecution claim. See Rohman v. N.Y. City Transit Auth., 215 F.3d
208, 217 (2d Cir. 2000) (holding that the mere reporting of a crime to police and giving
testimony are insufficient to support a malicious-prosecution claim) (citation omitted). Further,
Neudecker has not objected to this aspect of Judge Grahams R&R. The Court therefore
dismisses Count 4 with respect to Friendship Manor.
Judge Graham recommended dismissing the remaining three counts against Friendship
Manor all of which assert claims under 42 U.S.C. 1983 on the ground that Friendship
Manor is not a state actor and therefore cannot be held liable under 1983. In objecting to Judge
Grahams recommendation, Neudecker insists that Friendship Manor was indeed a state actor.
According to Neudecker, because Friendship Manor not only undertook the public function of
delivering mail to its residents, but also undertook responsibility for checking the content of mail
to ensure compliance with laws regulating the use of the mail, its activities were sufficiently
entwined with state action to support a Section 1983 complaint. Pl. Obj. to Nov. 27, 2007 R&R
at 3-4 [Docket No. 51]. Neudecker further argues that Judge Graham wrongly relied on Cooper
v. United States Postal Service, 482 F. Supp. 2d 278 (D. Conn. 2007), in finding that Friendship
Manor was not a state actor. Pl. Obj. to Nov. 27, 2007 R&R at 2-3.
Neudecker is correct that in Cooper, a nominally private company that operated a
contract postal unit was held to be a state actor. See 482 F. Supp. 2d at 292. This holding
rested on the so-called entwinement test: Cooper held that the company was so entwined with
the Postal Service that [the companys] actions may be considered the actions of the Postal
Service. Id. (emphasis added). At the same time, Cooper held that the so-called public
function test was not a basis for finding the company to be a state actor, because the Postal
Service had not delegated an exclusively public function to the company. Id. at 291-92; see also
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Assn, 531 U.S. 288, 302 (2001) (contrasting
the entwinement and public-function theories).
Judge Graham construed Neudeckers complaint to assert that Friendship Manor was a
state actor because it performed a function that is traditionally reserved for the state. R&R
Nov. 27, 2007 at 3. In other words, Judge Graham understood Neudecker to be relying solely on
the public-function test. Judge Graham construed Cooper as holding that only the delivery and
carrying of letters over postal routes is reserved to the state. Id. at 4 (quoting Cooper, 484 F.
Supp. 2d at 291). Because Friendship Manors alleged actions in handling Neudeckers letter did
not involve delivering or carrying letters over postal routes, Judge Graham found that Friendship
Manor was not a state actor under the public-function test. Id.
Judge Graham did not, however, consider whether Friendship Manor might be deemed a
state actor under the entwinement test. In objecting to the R&R, Neudecker appears to make two
arguments: (1) that Judge Graham erred in finding that Friendship Manor was not a state actor
under the public-function test; and (2) that even if Judge Graham correctly applied the publicfunction
test, Friendship Manor should nevertheless be deemed a state actor under the
entwinement test. Pl. Obj. to Nov. 27, 2007 R&R at 3-4.
The Court agrees with Judge Grahams ultimate conclusion that the facts alleged in the
complaint, even if true, cannot support a finding that Friendship Manor was a state actor. As the
Supreme Court held in Brentwood Academy v. Tennessee Secondary School Athletic Association,
an action of a nominally private entity may be treated as state action if, though only if, there is
such a close nexus between the State and the challenged action that seemingly private behavior
may be fairly treated as that of the State itself. 531 U.S. at 295 (citation omitted). This general
principle can lead to a finding of state action in various circumstances under either the publicfunction
theory or the entwinement theory. But essential to a finding of state action under any
theory is a close nexus between the state and the challenged private action. Id.
In this case, there is virtually no nexus much less a close nexus between Friendship
Manors activity with respect to Neudeckers letter and the United States Postal Service.
Neudecker contends that Friendship Manor acted, in effect, as a postal inspector. But even if it
did, Neudecker has not alleged that Friendship Manor acted at the instance of, or on behalf of, or
with the approval of the Postal Service. The mere fact that Friendship Manor may have done
something (inspecting mail) that is reserved by law to a government agency does not, without
more, make Friendship Manor a state actor any more than a husband becomes a state actor
5In fact, the uncontroverted evidence demonstrates that Friendship Manor did not open
Neudeckers letter, but simply delivered it to his mother, Gertrude. Salmela Aff. (First) 5.
Gertrude then opened the letter, and she and James showed it to Friendship Manors staff, who
forwarded the letter to the Scott County Department of Human Services. Id. 7; Hafner Aff.
Ex. 1-A; McMillen Aff. 1-2. Based on this evidence, it is plain that Friendship Manor acted
as Gertrude and Jamess agent with respect to their mail. Thus, if Friendship Manor had moved
for summary judgment with respect to Neudeckers 1983 claims, rather than for dismissal for
failure to state a claim, the Court would have granted summary judgment to Friendship Manor on
the ground that it was not a state actor.
when he inspects a letter addressed to his wife, or a mother becomes a state actor when she
inspects a letter addressed to her son. After all, vigilantes take upon themselves the exclusive
state functions of determining guilt and imposing sentence but this does not make them state
actors. Perhaps Friendship Manor was a postal vigilante, but Neudecker has not alleged any facts
that would support a finding that Friendship Manor was a state actor.5 For that reason, the
1983 claims against Friendship Manor found in Counts 1 through 3 of Neudeckers amended
complaint are dismissed.
D. Claims Against Shakopee and Scott County Defendants
1. Count 1: 1983 Claim for First Amendment Violations
In Count 1 of his amended complaint, Neudecker alleges generally that defendants
violated his rights under the First Amendment. Count 1 does not specify the basis of this
particular claim. It is apparent from the balance of the complaint, however, that only two
possible expressive actions by Neudecker could underlie Count 1: (1) the lawsuit he filed against
Friendship Manor and the City of Shakopee in June 2005, and (2) the letter he sent to Gertrude
and James in August 2005. And only one possible action by defendants could underlie Count 1:
issuance of the disorderly-conduct citation in August 2005 (and the events leading up to it).
Count 2, however, asserts that defendants unlawfully retaliated against Neudecker for his
June 2005 lawsuit against Friendship Manor and the City of Shakopee. And Count 3 asserts that
the August 2005 disorderly-conduct citation amounted to malicious prosecution. In both
Counts 2 and 3, Neudecker seeks relief under 1983, as he does in Count 1.
Count 1 is therefore entirely duplicative of Counts 2 and 3. In Counts 2 and 3, Neudecker
seeks to recover under 1983 for alleged violations of his First Amendment rights. Neudecker
has no separate, freestanding First Amendment claim apart from the claims raised in Counts 2
and 3. Accordingly, the Court dismisses Count 1 as duplicative.
2. Counts 2, 3, and 4 for Malicious or Retaliatory Prosecution
The heart of Neudeckers suit is his contention that his citation in August 2005 for
disorderly conduct was legally unjustified and motivated by ill will. Neudecker has fashioned
three claims out of this contention: one under 1983 for retaliatory prosecution based on
Neudeckers June 2005 lawsuit against Friendship Manor and the City of Shakopee (Count 2);
one under 1983 for malicious prosecution based on his August 2005 letter to his parents
(Count 3); and one for state-law malicious prosecution based on the same letter (Count 4).
Neudeckers two 1983 claims depend upon his state-law claims. That is, to succeed on
his 1983 claims, it will be necessary though not sufficient for Neudecker to succeed on
his state-law claim for malicious prosecution. If Neudecker cannot show that the prosecution
was legally unjustified and motivated by ill-will as he must to succeed on his state-law
malicious-prosecution claim then he cannot recover under 1983. The Court therefore first
addresses Neudeckers state-law claim.
a. Count 4: State-Law Malicious Prosecution
To succeed on a malicious-prosecution claim under Minnesota law, a plaintiff must
establish three things: (1) the defendant initiated a prosecution against the plaintiff without
probable cause to believe the prosecution could succeed; (2) the defendant acted with malice; and
(3) the prosecution terminated in the plaintiffs favor. Henry v. City of Minneapolis, 512
F. Supp. 293, 295 (D. Minn. 1981); Stead-Bowers v. Langley, 636 N.W.2d 334, 338 (Minn. Ct.
App. 2001). In this case, there is no dispute that the prosecution of Neudecker terminated in his
favor, but there are disputes over the elements of probable cause and malice.
Judge Graham concluded that probable cause supported Neudeckers prosecution for
disorderly conduct and thus that his malicious-prosecution claim must fail. R&R Mar. 25, 2008
at 6-7. The Court agrees with Neudecker that Judge Grahams conclusion with respect to
probable cause was mistaken. There was, in fact, no chance that Neudecker could have been
convicted of disorderly conduct.
As relevant to this case, Minnesotas disorderly-conduct statute, Minn. Stat. 609.72
subd. 1, provides:
Whoever does any of the following in a public or private place . . .
knowing, or having reasonable grounds to know that it will, or will
tend to, alarm, anger or disturb others or provoke an assault or
breach of the peace, is guilty of disorderly conduct, which is a
misdemeanor: . . .
(3) Engages in offensive, obscene, abusive, boisterous, or noisy
conduct or in offensive, obscene, or abusive language tending
reasonably to arouse alarm, anger, or resentment in others.
Minn. Stat. 609.72 subd. 1.
Section 609.72 is broadly written to cover both conduct and language. Indeed, the statute
purports to criminalize some uses of language that are constitutionally protected under the First
Amendment (for instance, using offensive . . . language tending reasonably to arouse . . .
resentment in others). To cure the statutes constitutional infirmities, the Minnesota Supreme
Court gave it a limiting construction and uph[e]ld its constitutionality by construing it narrowly
to refer only to fighting words. In re Welfare of S.L.J., 263 N.W.2d 412, 419 (Minn. 1978).
By the term fighting words, the court meant those personally abusive epithets which, when
addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to
provoke violent reaction, or words which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. Id. at 418 (citation omitted). Neudeckers letter was grossly
offensive, but it was not likely to provoke a violent reaction or incite an immediate breach of the
peace. In short, the letter did not contain fighting words, and thus Neudecker could not have
been convicted of disorderly conduct for sending it.
There is a second reason why Neudeckers prosecution for disorderly conduct was not
supported by probable cause. In State v. Thornblad, the Minnesota Court of Appeals held, on
facts very much like the facts of this case, that the trial court properly refused to instruct a jury on
the crime of disorderly conduct. No. C8-94-1701, 1995 WL 46205, 1995 Minn. App. LEXIS
158 (Minn. Ct. App. Feb. 7, 1995). The defendant, Thornblad, had mailed threatening letters
directly to his victim. 1995 WL 46205 at *2. The court held that because Thornblad
threatened only a single person, there is insufficient evidence to support a disorderly conduct
conviction. Id. at *1.
Thornblad relied on the advisory committees comment to Minn. Stat. 609.72. Id. The
advisory committee described the following important qualification[] specified in the statute:
[Others] must be affected by the behavior. It is not sufficient
that a single person or, depending on circumstances, only a few
have grounds to complain. Others must be construed in the light
of the objectives of the offense. A family quarrel in a private home
would not be sufficient although it may be in the presence of the
children or of other relatives or of visitors also in the home. But if
passersby or neighbors were reasonably alarmed, angered or
disturbed, the offense would be committed.
Minn. Stat. Ann. 609.72, advisory comm. cmt. (1963) (West 2003). Neudecker contends that if
a family quarrel in a private home cannot support a disorderly-conduct charge, surely a family
quarrel carried out by post cannot do so either. Pl. Obj. to Mar. 25, 2008 R&R at 3. The Court
agrees. Under Thornblad, Neudecker could not have been convicted for disorderly conduct, even
if his letter had contained fighting words, because he sent the letter only to his parents.
Although Neudecker can establish that his citation for disorderly conduct was not
supported by probable cause, he must do more than that to recover on his malicious-prosecution
claim. He must also establish that the Shakopee Police Department acted with malice in
charging him with disorderly conduct. But a reasonable jury could not find that the Department
acted with malice, for the simple reason that the Department had probable cause to charge
Neudecker with a more-serious crime.
Neudecker was wrongly charged with the misdemeanor of disorderly conduct. But he
could have been charged with the gross misdemeanor of harassment. Specifically, Minn. Stat.
609.749, subd. 2(a)(1) provides that [a] person who harasses another by . . . directly or
indirectly manifest[ing] a purpose or intent to injure the person, property, or rights of another by
the commission of an unlawful act is guilty of a gross misdemeanor. Minn. Stat. 609.749,
subd. 2(a)(1). Neudecker threatened in his letter that, if his elderly father did not send him
money, he would sledg[e]hammer, hacksaw and sunder his fathers medical bed. Hafner
Aff. Ex. 1-B. Thus, the Shakopee Police Department had probable cause to charge Neudecker
with harass[ing] his father by manifest[ing] a purpose or intent to injure his fathers
property by committing an unlawful act. See Minn. Stat. 609.749, subd. 2(a)(1).
(Maliciously destroying the property of another is prohibited by both the civil and criminal law.
See, e.g., Minn. Stat. 609.595, subd. 2.) This is not to say that Neudecker would necessarily
have been convicted of the charge, but the charge would have been supported by probable cause.
Defendants are thus entitled to summary judgment on Neudeckers state-law maliciousprosecution
claim because no reasonable jury could conclude that defendants acted with malice
in charging Neudecker with the lesser offense of disorderly conduct when defendants had
probable cause to charge him with the more-serious offense of harassment. Charging Neudecker
with disorderly conduct was a mistake, but it was a mistake that ran in his favor. It was also an
understandable mistake, given that both the disorderly-conduct statute and the harassment statute
criminalize certain kinds of threatening language. In sum, where, as here, the government makes
a legally unsupportable charge of disorderly conduct against a defendant rather than a legally
supportable charge of harassment, the charge of disorderly conduct cannot support a maliciousprosecution
claim, because mistakenly charging a defendant with the less-serious crime of
disorderly conduct is inconsistent with a finding of malice on the governments part.
3. Count 2: 1983 Claim for Retaliatory Prosecution
Even if Neudecker could prevail on his state-law claim for malicious prosecution, he
would have to do more to recover on his 1983 claims. Malicious prosecution is actionable
under 1983 only when the state-law offense is coupled with a deprivation of constitutional
magnitude. Henry, 512 F. Supp. at 296 (citation omitted). Generally, the particular
constitutional deprivation associated with a malicious-prosecution claim under 1983 is a
deprivation of liberty. See id.; Rohman, 215 F.3d at 215. But a 1983 malicious-prosecution
claim may also be grounded on a First Amendment violation. If the government prosecutes a
defendant in retaliation for his exercise of his First Amendment rights, the defendant may seek
redress under 1983. See Jenkins v. County of Hennepin, Civ. No. 06-3625, 2007 WL 2287840,
at *6, 2007 U.S. Dist. LEXIS 56928 (D. Minn. Aug. 3, 2007).
To succeed on a 1983 claim of retaliatory prosecution for the exercise of First
Amendment rights, a plaintiff must establish, among other things, that the defendant acted with
retaliatory animus. Id. Such retaliatory animus is simply a particular type of the malice that must
underlie any malicious-prosecution claim.
In Count 2 of the amended complaint, Neudecker alleges that defendants retaliated
against him for having filed suit against them in state court in June 2005. This claim fails with
respect to the Scott County defendants because they were not named in Neudeckers June 2005
action, and thus Neudecker has alleged no facts that would support a finding of retaliatory
animus on the part of the Scott County defendants.
Count 2 also fails against the Shakopee defendants because no reasonable jury could find
that they acted with retaliatory animus. As explained above, Neudeckers state-law malicious-
prosecution claim fails because no reasonable jury could find that any defendant acted with
malice in charging Neudecker for disorderly conduct in August 2005. It follows that no
reasonable jury could find that the Shakopee defendants acted with the retaliatory animus
necessary to support a 1983 claim for retaliatory prosecution in violation of the First
4. Count 3: 1983 Claim for Malicious Prosecution
In Count 3, Neudecker asserts a claim for malicious prosecution under 1983. Whether
this claim rests on a claimed deprivation of liberty resulting from the August 2005 disorderlyconduct
citation or on a claimed violation of Neudeckers First Amendment rights with respect to
the letter he sent his parents, defendants are entitled to summary judgment.
First, for the reasons given above, no reasonable jury could find that any defendant acted
with malice or retaliatory animus in charging Neudecker with disorderly conduct in August 2005.
Second, a First Amendment retaliation claim based on the August 2005 letter would necessarily
fail because the letter was a threat indeed, likely criminal harassment and therefore was not
protected speech. See Doe v. Pulaski County Special Sch. Dist., 303 F.3d 616, 622 (8th Cir.
2002). Finally, defendants have a number of additional meritorious defenses, which the Court
discusses briefly below.
5. Miscellaneous Defenses
a. Laurie McMillen
McMillen is an employee of the Scott County Department of Human Services. The
undisputed evidence shows that McMillen did only two things: (1) she forwarded Neudeckers
letter, which she received from Salmela, to the Shakopee Police Department, and (2) she
provided some background information to the investigating police officer, Trutnau. McMillen
Aff. 4; Egge Aff. Ex. 4 at 2 (On 08-05-05 I [i.e., Trutnau] received a phone call from
[McMillen] . . . referenc[ing] a letter received by some residents at Friendship Manor Nursing
Home. McMillen faxed me a copy of the letter that had been received and explai[ned the]
circumstances.). These actions cannot support a claim of malicious or retaliatory prosecution
against McMillen. See Rohman, 215 F.3d at 217.
b. Scott County and Shakopee Defendants
Neudecker has sued the Scott County Department of Human Services (an agency of Scott
County) and the Shakopee Police Department (an agency of the City of Shakopee). Both
agencies contend that they are not subject to suit. Shakopee SJ Mem. at 7; Scott County SJ
Mem. at 6-7. Though it makes little difference (given that Scott County and the City of
Shakopee are defendants), the Court agrees. See Fed. R. Civ. P. 17(b)(3) (state law determines
an entitys capacity to be sued); In re Scott County Master Docket, 672 F. Supp. 1152, 1163 n.1
(D. Minn. 1987) (holding that the Scott County Attorneys Office and Sheriffs Department are
not legal entities subject to suit); Hyatt v. Anoka Police Dept, 700 N.W.2d 502, 505 (Minn. Ct.
App. 2005) (holding that under Minnesota law, [w]hile a municipal corporation such as the city
has the authority to sue and be sued, its departments have not been given that specific authority).
More important, both Scott County and the City of Shakopee contend that they cannot be
liable under 1983 because there is no evidence that Neudecker was injured on account of a
policy or custom. Under Monell v. Department of Social Services, government entities cannot be
held liable for constitutional violations committed by government employees unless some
government policy or custom caused the violations. 436 U.S. 658, 694 (1978) ([A] local
government may not be sued under 1983 for an injury inflicted solely by its 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.); Seymour v. City of Des
Moines, 519 F.3d 790, 800 (8th Cir. 2008) (applying Monell). The Court agrees with Scott
County and the City of Shakopee that Neudecker has not alleged, let alone proved, the existence
of any such policy or custom, and therefore they are entitled to summary judgment under Monell
with respect to both Counts 2 and 3.
Based on the foregoing and on all of the files, records, and proceedings herein, the Court
SUSTAINS IN PART and OVERRULES IN PART the objections of plaintiff Michael
Neudecker to Magistrate Judge Jeanne J. Grahams November 27, 2007 Report and
Recommendation [Docket No. 47] and to Judge Grahams March 25, 2008 Report and
Recommendation [Docket No. 66]. The Court ADOPTS IN PART both Report and
Recommendations to the extent that they are consistent with this Order. Accordingly, IT IS
1. The motion of plaintiff Michael Neudecker to amend his complaint [Docket
No. 20] is GRANTED.
2. The motion of defendant Quality Lifestyles, Inc., d/b/a/ Friendship Manor Health
Care Center, to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) [Docket No. 7] is
3. The motion of defendants Scott County, Scott County Department of Human
Services, and Laurie McMillen for summary judgment [Docket No. 32] is
4. The motion of defendants City of Shakopee and Shakopee Police Department to
dismiss or for summary judgment [Docket No. 39] is GRANTED.
5. Plaintiffs amended complaint is DISMISSED WITH PREJUDICE AND ON
Dated: September 3, 2008 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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