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McKinney v. County of Hennepin et al.: US District Cour : 1983 - not all state law breaches are 1983 violations; no facts to make county liable

Vincent McKinney,
v. Civil No. 08-3769 ADM/JSM
State of Minnesota; and County of Hennepin,
a Minnesota Municipal Corporation,
Hennepin County Sheriffs Department, a
Minnesota Municipal Corporation; and
Deputy Fleck an Officer of the Hennepin
County Sheriffs Department, in his official
capacity and in his individual capacity; and
City of Minneapolis, a Minnesota Municipal
Corporation, and Minneapolis Police
Department, a Minnesota Municipal
Corporation; and Lieutenant Dietzman, an
officer of the Minneapolis Police Department,
in his official capacity and in his individual
capacity; and Detective Poidinger, an Officer
of the Minneapolis Police Department, in his
official capacity and in his individual capacity;
and Detective Lunde, an Officer of the
Minneapolis Police Department, in his official
capacity and in his individual capacity; and
Detective Bogenreif, an Officer of the
Minneapolis Police Department, in his official
capacity and in his individual capacity; and
Allstate Insurance Company, a Minnesota
Corporation, and Paul Nelson, an insurance
agent of Allstate Insurance Company, in his
official capacity and in his individual capacity,
Vincent McKinney, pro se.
Anna E. Jenks, Esq., Minnesota Attorney Generals Office, St. Paul, MN, appeared for and on
behalf of the Defendant State of Minnesota.
Toni A. Beitz, Esq., Hennepin County Attorneys Office, Minneapolis, MN, appeared on behalf
of the Defendants Hennepin County, Hennepin County Sheriffs Office, and the individual
Darla Jo Boggs, Esq., Minneapolis City Attorneys Office, Minneapolis, MN, appeared on behalf
of the Defendants City of Minneapolis and the Minneapolis Police Department.
Teresa E. Knoedler, Esq., Lind, Jensen, Sullivan & Peterson P.A., Minneapolis, MN, appeared
on behalf of Defendants Allstate Insurance Company and Paul Nelson.
On October 17, 2008, the undersigned United States District Judge heard oral argument
on the Motion to Dismiss or for Summary Judgment [Docket No. 12] of Defendants Hennepin
County, Hennepin County Sheriffs Department, Deputy Fleck, and Officers Dietzman,
Poidinger, Lunde, and Bogenreif (collectively the Hennepin Defendants), the Motion to
Dismiss or for Summary Judgment [Docket No. 17] from the State of Minnesota (the State),
and the Motion for Summary Judgment [Docket No. 15] from Plaintiff Vincent McKinney
(McKinney). At the hearing, McKinney agreed to dismiss all claims against the City of
Minneapolis and the Minneapolis Police Department. The Court orally granted the States
Motion to Dismiss after finding that any claim against it was barred by the Eleventh Amendment
to the United States Constitution. The Court also denied McKinneys Motion for Summary
Judgment against Allstate Insurance Company and Paul Nelson after McKinney conceded there
were fact issues still in dispute. The Court took under advisement the Hennepin Defendants
Motion to Dismiss or for Summary Judgment. For the reasons set forth below, the Court grants
the Hennepin Defendants motion.
1 In this Motion to Dismiss or for Summary Judgment, the facts are viewed in the light
most favorable to the Plaintiff. See Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995);
Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994).
On December 14, 2007, Hennepin County District Judge Patricia Belois issued a search
warrant for a residence in Minneapolis, Minnesota. Beitz Aff. [Docket No. 27] Ex. B. The
warrant authorized Lieutenant Dietzman, Detective Poidinger, Detective Lunde, Detective
Bogenreif, Deputy Fleck, and other officers to search the residence for drugs, associated
paraphernalia, firearms, and documents showing the identity of the occupant. Id. The affidavit
in support of the search warrant averred that a confidential informant had identified a man named
Vince lived at the residence and was selling crack cocaine. Beitz Aff. Ex. A. Vincent
McKinney was listed as the occupant of the residence. Id. Detective Sweitzer had utilized the
informant to complete a controlled buy of narcotics from McKinney at that residence. Id. Judge
Belois granted officers the authority to search the residence without announcement to prevent the
loss of evidence and protect the officers. Id. Ex. B.
The warrant was executed by law enforcement on December 18, 2007, at approximately
8:00 a.m. Lunde Aff. [Docket No. 25] 4. The police officers ramm[ed] the front and back
door in, detained McKinney with plastic handcuffs, and proceeded to search the residence.
Amend. Compl. [Docket No. 6] 1. Detective Fleck was the only individually named defendant
to enter the residence and participate in the search. Fleck Aff. [Docket No. 24] 4. He was not,
however, the officer who handcuffed McKinney. Id. 5. Neither Dietzman, Poidinger, nor
Bogenreif went to the residence or participated in the execution of the warrant. Dietzman Aff.
[Docket No. 23] 4, Poidinger Aff. [Docket No. 26] 4, Bogenreif Aff. [Docket No. 22] 4.
Detective Lunde went to assist in the search but was not involved in ramming the door or
participating in the search because he left the scene before any action had been taken. Lunde
Aff. 5, 6. The officers seized a number of documents demonstrating McKinneys identity and
residency, an electronic scale, ammunition, packaging material, and a shirt. Beitz Aff. Ex. C.
Receipt, Inventory and Return (Receipt).
McKinney alleges that the officers failed to inform him about the nature of the search
warrant, provide him with a copy of the sworn affidavit that served as the basis of the warrant, or
provide a property list enumerating the evidence seized. Amend. Compl. 1, 2, 4. He also
alleges the Defendants damaged his residence. Id. 1, 2. The Hennepin Defendants admit they
did not provide McKinney with a copy of the affidavit. Answer by Hennepin Defendants
[Docket No. 11] 8. Sweitzer, however, swore on the receipt that a copy of the receipt and
warrant were left with McKinney at the residence. Beitz Aff. Ex. C.
A. Standard of Review
Rule 12 of the Federal Rules of Civil Procedure provides that a party may move to
dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). In considering a motion to dismiss, the pleadings are construed in the light most
favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true.
Hamm, 15 F.3d at 112; Ossman v. Diana Corp., 825 F. Supp. 870, 879-80 (D. Minn. 1993). Any
ambiguities concerning the sufficiency of the claims must be resolved in favor of the nonmoving
party. Ossman, 825 F. Supp. at 880. Under Rule 8(a) of the Federal Rules of Civil Procedure,
pleadings shall contain a short and plain statement of the claim showing that the pleader is
entitled to relief. A pleading must contain enough facts to state a claim to relief that is
plausible on its face. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).
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 judgment as a matter of law. Fed. R. Civ. P. 56(c); see Matsushita Elec.
Indus. Co. 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).
Ordinarily, if a district court relies on matters outside the pleadings in considering a
motion to dismiss, the motion to dismiss is converted to one for summary judgment. BJC Health
Sys. v. Columbia Cas. Co., 348 F.3d 685, 687-88 (8th Cir. 2003). A court has complete
discretion in determining whether to accept materials beyond the pleadings, but should not do
so if the non-moving party has not yet had an opportunity to discover facts or evidence to
support its allegations. Stahl v. U.S. Dept of Agric., 327 F.3d 697, 701 (8th Cir. 2003); BJC
Health Sys., 348 F.3d at 687-88. However, the court may consider public records and matters
that are necessarily embraced by the pleadings. Porous Media Corp. v. Pall Corp., 186 F.3d
1077, 1079 (8th Cir. 1999). In general, [m]ost courts view matters outside the pleading[s] as
including any written or oral evidence in support of or in opposition to the pleading[s] that
2 McKinney moved for Summary Judgment against the Hennepin County Defendants.
He did not file an opposition memorandum to the defense motions.
provides some substantiation for and does not merely reiterate what is said in the pleadings.
BJC Health Sys., 348 F.3d at 687.
Because matters outside the pleadings submitted by the parties are considered, and
because neither party opposes2 treating this Motion as one for summary judgment, the Court will
treat the Hennepin Defendants Motion as one for summary judgment.
B. Section 1983 Claim Against Dietzman, Poidinger, Lunde, and Bogenreif
In order to survive a motion for summary judgment under 1983, the plaintiff must
raise a genuine issue of material fact as to whether (1) the defendants acted under color of state
law, and (2) the alleged wrongful conduct deprived the plaintiff of a constitutionally protected
federal right. Cooksey v. Boyer, 289 F.3d 513, 515 (8th Cir. 2002). As a threshold matter, the
complaint must contain sufficient facts to demonstrate that the individually named defendants
violated the plaintiffs constitutional rights. Ellis v. Norris, 179 F.3d 1078, 1079 (8th Cir. 1999).
Specifically, a complaint must plead sufficient facts that describe what each individually named
plaintiff did that constitutes a violation of the plaintiffs constitutional rights. Twombly, 127 S.
Ct. at 1974; see also Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (stating that
liability in a civil rights action requires a causal link to, and direct responsibility for, the
deprivation of rights protected by the Constitution).
McKinneys first Complaint [Docket No. 1] did not contain facts describing the alleged
constitutional violations or how the actions of the individual Defendants violated his
constitutional rights. In a July 2, 2008 Order [Docket No. 5], Magistrate Judge Mayeron
informed McKinney about this deficiency in his original Complaint and gave McKinney until
August 8, 2008 to file an amended complaint to satisfied the pleading requirements.
McKinneys Amended Complaint, however, still fails to contain facts that demonstrate how the
individually named plaintiffs violated his Constitutional rights. The Amended Complaint merely
refers to the Police Lieutenant, Detectives, and County Sheriff who entered his residence and
the named officials who placed him in handcuffs. Given the affidavits of Dietzman, Poidinger,
and Bogenreif that they never participated in the execution of the warrant, the affidavit of Lunde
that he did not knock down McKinneys door or enter the apartment, and the lack of any facts in
the Complaint that would tie the alleged unconstitutional behavior to these Defendants, the Court
grants summary judgment to Dietzman, Poidinger, Bogenreif, and Lunde.
C. Section 1983 Claim Against Deputy Fleck
Of the individually named defendants, only Deputy Fleck participated in the execution of
the warrant and the search of the residence. McKinney alleges that (1) there were deficiencies in
the warrant, (2) his handcuffing during the execution of the warrant was a constitutional
violation, (3) the officers failed to show him the warrant and affidavit and failed to leave a
receipt, and (4) the Defendants damaged his property. McKinney has not specifically alleged
that Deputy Fleck secured the warrant or handcuffed him, and in his affidavit Deputy Fleck
states that he did not participate in the drafting or procurement of the warrant and he did not
handcuff McKinney. For this reason, the Court finds that the Amended Complaint does not
allege sufficient facts attaching any responsibility for the alleged warrant deficiencies or the
handcuffing to Deputy Fleck.
Two theories of how Deputy Fleck violated McKinneys rights remain. The first is that
Deputy Fleck failed to show the affidavit or warrant to McKinney and failed to leave a copy of
the receipt at McKinneys residence. Taking the facts in the light most favorable to McKinney,
these allegations nevertheless fail to state a constitutional violation. Law enforcement officers
do not commit a constitutional violation by failing to provide a resident with a copy of a search
warrant prior to conducting a search. See Groh v. Ramirez, 540 U.S. 551, 562 n. 5 (2004)
(neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure
requires the executing officer to serve the warrant on the owner before commencing the search);
see also DeArmon v. Burgess, 388 F.3d 609, 612 (8th Cir. 2004) (recognizing that failure to
provide a copy of a search warrant is not a violation of a clearly established constitutional right).
While Deputy Fleck had a legal duty to provide McKinney with a copy of the warrant and
receipt, he had no legal duty to present McKinney with the affidavit. See Minn. Stat. 626.16.
Finally, while Deputy Flecks alleged failure to provide McKinney with a receipt is a violation
of Minnesota law, violation of state law does not, by itself, constitute a 1983 violation. See
DeArmon, 388 F.3d at 612; Collins v. Bellinghausen, 153 F.3d 591, 596 (8th Cir. 1998). For
these reasons, the failure to show McKinney the affidavit or warrant or provide him with a copy
of the receipt fails to state a 1983 claim.
Finally, McKinney alleges that the damage to his residence is a constitutional violation.
McKinneys claim fails. The Supreme Court has held that an unauthorized intentional or
negligent deprivation of property by a state employee does not constitute a violation of due
process if a meaningful post-deprivation remedy for the loss is available. See Hudson v. Palmer,
468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527 (1981). Here, McKinney has a
remedy because he can pursue in state court an action in tort against Hennepin County for any
3 Judge Mayerons July 2, 2008 Order also informed McKinney of this defect.
losses caused by the officers. Minn. Stat. 466.02. The Eighth Circuit has held that section
466.02 is an adequate post-deprivation remedy. Hubenthal v. County of Winona, 751 F.2d 243,
246 (8th Cir. 1984) (per curiam); see also Ali. v. Ramsdell, 423 F.3d 810, 814 (8th Cir. 2005)
(holding that a state law conversion claim is an adequate post-deprivation remedy). For these
reasons the Court grants summary judgment to Deputy Fleck.
D. Section 1983 Claim Against Hennepin County Sheriffs Department
McKinney brings his claim against Hennepin County Sheriffs Department as a
municipal corporation. Hennepin County Sheriffs Department is not, itself, a municipal
corporation but rather an operating department of a municipal corporation, namely Hennepin
County. Because it is not a legal entity recognized by the law, legislation is required to enable it
to sue or be sued. See State ex rel. Ryan v. Civil Service Commn of City of Minneapolis, 154
N.W.2d 192, 194 (Minn. 1967); see also Maras v. City of Brainerd, 502 N.W.2d 69, 79 (Minn.
Ct. App. 1993) (concluding that the Crow Wing County Sheriffs Department was not a legal
entity). No such legislation exists in this case and therefore summary judgment is granted on the
claim against the Hennepin County Sheriffs Department.3
E. Section 1983 Claim Against Hennepin County
While not explicitly pleaded as such, McKinneys 1983 claim against Hennepin County
may have been intended to assert a Monell action. Under Monell, municipal liability arises
when a constitutional injury directly results from action pursuant to official municipal policy of
some nature. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). The policy
may derive from an officially adopted and promulgated policy by the governmental governing
body or from a widespread custom or usage within the municipality. Id.; see also Thelma D.
ex rel. Delores A. v. Board of Educ., 934 F.2d 929, 932 (8th Cir. 1991). A governmental
custom may serve as the basis for 1983 liability even though such a custom has not received
formal approval through the bodys official decision making channels. Monell, 436 U.S. at
659; see also Jane Doe A v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir. 1990). A plaintiff
may establish liability through proof that the alleged misconduct was so pervasive among the
non-policy making employees of the municipality as to constitute a custom or usage with the
force of law. McGautha v. Jackson County, Miss. Collections Dept., 36 F.3d 53, 55-56 (8th
Cir. 1994) (internal quotations and citations omitted). To demonstrate an unconstitutional
custom, a plaintiff must prove
(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; and (3) That plaintiff was
injured by acts pursuant to the governmental entitys custom, i.e., that the custom
was the moving force behind the constitutional violation.
Jane Doe A, 901 F.2d at 646.
Although Hennepin County is named in the caption of the Amended Complaint, it is not
mentioned in the body of the document. McKinney has alleged no facts to demonstrate liability
on the part of Hennepin County. The allegations refer to specific acts by individual officers but
fail to allege any policy, custom, or usage on the part of Hennepin County that would give rise to
a Monell claim. For these reasons, Hennepin County is entitled to summary judgment.
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS
1. The Motion to Dismiss or for Summary Judgment [Docket No. 12] of Defendants
Hennepin County, Hennepin County Sheriffs Department, and Officers Dietzman, Poidinger,
Lunde, Bogenreif, and Fleck is GRANTED;
2. Defendant State of Minnesotas Motion to Dismiss [Docket No. 17] is GRANTED;
3. Defendants City of Minneapolis and Minneapolis Police Department are
DISMISSED by consent of the parties;
4. Plaintiff Vincent McKinneys Motion for Summary Judgment [Docket No. 15] is
s/Ann D. Montgomery
Dated: November 3, 2008.


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