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Lahl v. Rice County: US District Court : 1983 - boss's action in anger not official policy; 1983/Monell claim fails

Peter L. and Lisa Dahl, Civil No. 06-3777 (DWF/AJB)
husband and wife,
Rice County, Minnesota; and Richard
Cook and Carl Rabeneck, each in his
individual and official capacity;
and William Skarupa, in his individual
Richard T. Wylie, Esq., counsel for Plaintiffs.
Jeff M. Zalasky, Esq., Jeffrey A. Egge, Esq., Jon K. Iverson, Esq., Pamela Fisher
Whitmore, Esq., Iverson Reuvers, LLC, counsel for Defendants Rice County, Richard
Cook, and William Skarupa.
Roger L. Rowlette, Esq., and Jason M. Hill, Esq., Johnson & Lindberg, PA, counsel for
Defendant Carl Rabeneck.
This matter is before the Court on a Motion for Summary Judgment brought by
Defendants Rice County, Richard Cook, and William Skarupa, and a separate Motion for
Summary Judgment brought by Defendant Carl Rabeneck. For the reasons stated below,
the Court grants both motions.
Plaintiff Peter Dahl worked as a Rice County Deputy Sheriff from November 1992
until Fall 2006. During his employment with Rice County, Dahl was assigned to a
multi-jurisdictional SWAT team, served as a firearms instructor, and served on a
multi-jurisdictional drug task force. (Aff. of Jeffrey M. Zalasky (Zalasky Aff.) 3, Ex.
B (Dep. of Peter Dahl (Dahl Dep.)) at 18.)
On August 18, 2005, Sheriff Cook e-mailed Dahl to inquire about a purchase of
badges that had been charged to Rice County. The e-mail reads:
I have received notice from accounting at Symbol Arts they are prepared to
turn your (our) account over to collections for the amount of 0.
First of all, this expenditure was never authorized by this Office. Secondly,
you are not to charge anything, anywhere to this Office without prior
Lastly, you have dragged us into your mismanaged personal affairs and I
am getting real tired of it.
Call David at Symbol [sic] Arts . . . and resolve this now!
(Zalasky Aff. 7, Ex. F.)
On August 22, 2005, Dahl responded to Sheriff Cooks e-mail as follows:
Once again another email is directed at me in a hostile and condescending
tone. But since talking with us personally seems to becoming a thing of the
past, I will respond accordingly. I never charged anything to this office,
nor to the name of this office. This was a purchase by members of the task
force agents and team. The order was placed as such and was only shipped
here. I was simply the contact person who ended up having some members
sending money through me. Some of the order was wrong and had to be
replaced by this company before those persons were willing to pay. I have
relayed this info before and have spoken with this company who did not
return my message.
I feel that I should relay to you that the tone of some messages we deputies
have been receiving has brought the morale of this department to its
proverbial knees. As to ones personal affairs affecting the department, I
choose to remain professionally objective before casting stones.
Pete Dahl
On August 22, 2005, Dahl met with Sheriff Richard Cook at Sheriff Cooks
request. Sheriff Cook asserts that he requested the meeting to discuss unauthorized
charges made by Dahl to Rice County. During this meeting, Dahl asserts that Sheriff
Cook stated who do you think you are, you smart ass little prick?; that Sheriff Cook
struck Dahl in the chest with the heel of his hand; and that the strike caused Dahl to fall
backwards into a chair and injure his back. (Dahl Dep. at 49, 55-56; Zalasky Aff. 13,
Ex. L (Dep. of Richard Cook (Cook Dep.)) at 89.) For the purposes of this motion,
Defendants agree that there was an assault and that Dahl was injured.
Also on August 22, 2005, Dahl completed a First Injury Report and an Accident
Report. (Zalasky Aff. 16, Ex. O.) In the Accident Report, Dahl reported that the cause
of the incident was that Sheriff lost his temper. (Id.) On August 23, 2005, Dahl
reported the incident to the Rice County Administrator, who encouraged Dahl to utilize
the Employee Assistance Program. (Zalasky Aff. 6, Ex. E (Dep. of Gary Weirs (Weirs
Dep.)) at 69.) The Faribault Police Department referred Dahls complaint to the
Lakeville Police Department and the Lakeville City Attorney. The Lakeville City
Attorney later informed Dahl they would not prosecute Sheriff Cook for the alleged
assault and battery. (Zalasky Aff. 14, 15, Exs. M & N.)
On September 2, 2005, Dahls doctor wrote a note stating that Dahl was unable to
return to work due to a back injury. (Zalasky Aff. 16, Ex. O.) Dahl went on medical
leave. There is no dispute that Dahl was unable to perform his job duties as a deputy
sheriff. Dahl, however, asserts that he could have performed light duty work.
Defendants assert that the Rice County Sheriffs Department does not have light duty
work options.
On August 10, 2006, Rice County sent a termination letter to Dahl that reads in
Dear Mr. Dahl:
Rice County has determined, based on medical reports that it has received,
that you are medically unfit to perform the duties of a Rice County Deputy
Sheriff. Please be advised that the County intends to terminate your
employment on this basis, which constitutes incompetence for the purposes
of the Veterans Preference Act, effective sixty (60) days from the date of
this letter.
Pursuant to Minnesota Statutes, Section 197.46, you have the right to
request a hearing concerning your termination before a neutral panel. If
you wish to request a hearing, you must do so within sixty (60) days of
receipt of this notice. . . .
Failure to request a hearing within sixty (60) days of the receipt of this
notice shall constitute a waiver of your right to a hearing.
(Zalasky Aff. 4, Ex. C.)
Dahl alleges that after he complained about Sheriff Cook, Carl Rabeneck, the
Emergency Services Director, began to stalk Dahl and his family, and assaulted Dahl on a
separate occasion. In addition, Dahl asserts that Sheriff Cook and Skarupa, a sergeant in
the Rice County Sheriffs Department, defamed Dahl.
Dahl and his wife bring this suit seeking damages for Dahls physical injuries
under 42 U.S.C. 1983, alleging violations of Dahls First and Fourteenth Amendment
rights and several state-law claims, including assault, battery, intentional infliction of
emotional distress, violation of the Minnesota Whistleblower Act, defamation, and loss of
I. Legal Standard
Summary judgment is proper if there are no disputed issues of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
[s]ummary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
to secure the just, speedy and inexpensive determination of every action. Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d
at 747. The nonmoving party must demonstrate the existence of specific facts in the
record that create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953,
957 (8th Cir. 1995). A party opposing a properly supported motion for summary
judgment may not rest upon mere allegations or denials but must set forth specific facts
showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986).
II. Federal Claims
A. Monell Claims
Dahl asserts several federal claims under 42 U.S.C. 1983. Section 1983
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured . . . .
Dahls federal claims are asserted against Rice County and Sheriff Cook in his official
and individual capacity.1 A 1983 claim against an employee in his official capacity is
deemed to be a suit against the employer only, which in this case is Rice County.
Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). It is
well-established that a governmental entity cannot be held liable under 1983 on a
respondeat superior theory. See Monell v. Dept of Social Servs., 436 U.S. 658, 691
(1978). Thus, a government body cannot be held liable under 1983 merely because it
1 In his opposition, Dahl clarified his claims and explained that his federal claims
are only being asserted against Rice County and Sheriff Cook. (Pls. Mem. of Law in
Oppn to Mots. for Summ. J. at 2.)
employs a tortfeasor. Id. at 691-92. For a municipality to be liable under 1983, a
plaintiff must prove that a municipal policy or custom was the moving force [behind]
the constitutional violation. Id. at 694. An [o]fficial policy involves a deliberate
choice to follow a course of action . . . made from among various alternatives[] by an
official who is determined by state law to have the final authority to establish
governmental policy. Ware v. Jackson County, Mo., 150 F.3d 873, 880 (8th Cir. 1998)
(quotations and brackets omitted). Alternatively, a custom is demonstrated by: (1) [t]he
existence of a continuing, widespread, persistent pattern of unconstitutional misconduct
by the governmental entitys employees; (2) [d]eliberate indifference to or tacit
authorization of such conduct by the governmental entitys policymaking officials after
notice to the officials of that misconduct; and (3) [t]he plaintiffs injury by acts pursuant
to the governmental entitys custom, i.e., proof that the custom was the moving force
behind the constitutional violation. Id. (brackets omitted).
Viewing the evidence in the light most favorable to Dahl, the Court finds that Dahl
has failed to identify a genuine issue of fact that would support a Monell claim. Although
there is evidence that certain employees found Sheriff Cook unpleasant, sarcastic,
aggressive, and even abusive, the evidence submitted demonstrates that such
complaints related to alleged verbal abuse and his general disposition. There is no
evidence in the record suggesting that Sheriff Cook or Rice County maintains a
widespread policy or custom of physical abuse or corporal punishment. For example,
there is no evidence that Sheriff Cook assaulted any other employees or that Rice County
received any complaints that Sheriff Cook physically assaulted or physically disciplined
other department employees.
Dahl asserts that because Sheriff Cook is a policy maker, his decision to assault
Dahl constitutes a policy, practice, and decision of Rice County. Dahl alleges that Sheriff
Cook has final authority over who he hires and discharges, as well as on disciplinary
matters short of discharge. Dahl further asserts that Sheriff Cooks decision to assault
Dahl was a form of discipline and therefore a decision of Rice County.
Even in the absence of an official policy or custom, a policy could be inferred
from a single decision taken by the highest officials responsible for setting policy. See
City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). Section 1983 liability may
attach to a municipality where the decisionmaker possesses final authority to establish
municipal policy with respect to the action ordered. Pembaur v. City of Cincinnati, 475
U.S. 469, 481 (1986). However, on the record before the Court, there is simply no
evidence that this single, isolated incident represents a policy of Sheriff Cooks or Rice
Countys. While Sheriff Cook may have engaged in unlawful tortious activity during his
meeting with Dahl, the record demonstrates that this assault was the result of Sheriff
Cook losing his temper. It cannot be fairly said that Sheriff Cooks act of assaulting Dahl
was meant to represent official policy. See Penbar, 475 U.S. at 483 (holding that
municipal liability under 1983 only attaches where a deliberate choice to follow a
course of action is made from among various alternatives by the official responsible for
establishing final policy).
Dahl also asserts that municipal liability exists because other elected Rice County
officials ratified Sheriff Cooks behavior by expressing support for Sheriff Cook,
representing that Dahls allegations were baseless, and failing to meaningfully investigate
Sheriff Cooks conduct. The Court concludes that Dahl has failed to provide factual or
legal support for this theory of liability in this case.
For the above reasons, Dahls federal claims against Rice County and Sheriff
Cook in his official capacity fail. To the extent that Dahls federal claims are asserted
against Sheriff Cook in his individual capacity, the Court examines the substance of those
claims below.
2. First Amendment Retaliation
Dahl asserts that Sheriff Cooks assault on August 22, 2005, is actionable as
retaliation for protected speech under the First Amendment. Specifically, Dahl contends
that the assault was in response to Dahls e-mail, in which he claims to have implicated
several issues of public concern, including overall morale in the department. Dahl asserts
his First Amendment Retaliation claim against Rice County and Sheriff Cook.
In order to establish a claim for unlawful First Amendment retaliation, a public
employee must show that [he] suffered an adverse employment action that was causally
connected to [his] participation in a protected activity. Meyers v. Starke, 420 F.3d 738,
744 (8th Cir. 2005) (quoting Duffy v. McPhillips, 276 F.3d 988, 991 (8th Cir. 2002)).
Specifically, a plaintiff must show: that (1) he engaged in a protected activity, (2) the
government official took adverse action that would chill a person of ordinary firmness
from continuing in the activity, and (3) the adverse action was motivated by the exercise
of the protected activity. Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004). The
inquiry into the protected status of speech is one of law, not fact. Connick v. Myers, 461
U.S. 138, 147 n.7, 150 n.10 (1983).
To demonstrate that he engaged in a protected activity, Dahl must first show that
his allegedly protected statement was made as a citizen on a matter of public concern.
See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). If Dahl cannot make this threshold
showing, he has no First Amendment cause of action. Id.; see also Connick, 461 U.S. at
146).2 Whether an employees speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by the
whole record. Connick, 461 U.S. at 147-48. Speech involves a matter of public concern
when it relates to a matter of political, social, or other community concern. Connick, 461
U.S. at 146.
Here, the Court finds that Dahls statements regarding department morale do not
address a matter of public concern. Instead, his statements were closely tied to a personal
employment dispute that he had with Sheriff Cook, specifically the issue of Dahls
alleged unauthorized purchases. Dahls statement was made privately in a personal
e-mail3 in direct response to an e-mail received from Sheriff Cook, in which Sheriff Cook
2 Once a public employee makes that threshold showing, the employees interest in
speaking on such matters is balanced against the interest of the States in promoting the
efficiency of public services. Stever v. Indep. Sch. Dist. No. 625, St. Paul, 943 F.2d 845,
850 (8th Cir. 1991).
3 The Court recognizes that the fact that Dahl expressed his views in Sheriff Cooks
office on a matter related to his job is not dispositive as to First Amendment protection.
(Footnote Continued On Previous Page)
criticized Dahls actions in purchasing badges. There is no evidence that Dahl, prior to
the assault, attempted to inform the public about low department morale. Moreover, his
statements regarding morale only conveyed his view, and presumably the views of other
unnamed deputies, that morale was low due to the tone of certain messages being
received by Sheriff Cook. This statement, given its context in response to Sheriff Cooks
prior e-mail and in light of the record as a whole, was not made to evaluate the
performance of the department, but instead reflects Dahls displeasure with Sheriff
Cooks treatment of him as an employee. See Connick, 461 U.S. at 148 n.8 (explaining
that a questionnaire that pertained in part to the level of office morale is not of public
concern simply because its subject matter could have been a topic of a communication
to the public that might be of general interest); see also Allen v. City of Pocahontas, 340
F.3d 551, 557 (8th Cir. 2003) (noting that unless an employee is speaking as a concerned
citizen, the speech is not protected).
Because Dahls statements do not implicate a matter of public concern, First
Amendment protection does not apply and Dahls retaliation claim fails.
(Footnote Continued on Next Page)
See Garcetti, 547 U.S. at 420. However, as explained above, Dahls statement was also
clearly tied to a work-related dispute he had with Sheriff Cook and was not made to
benefit the public.
3. Procedural Due Process
Dahl alleges that Defendants deprived him of his protected property interest
in his employment and his protected liberty interest in bodily integrity without first being
afforded due process. Specifically, Dahl asserts that he should have been afforded a
meaningful opportunity to be heard before Sheriff Cook assaulted him.
Procedural due process imposes constraints on governmental decisions which
deprive individuals of liberty or property interests within the meaning of the Due
Process Clause of the . . . Fourteenth Amendment. Mathews v. Eldridge, 424 U.S. 319,
332 (1976). The fundamental requirement of due process is the opportunity to be heard
at a meaningful time and in a meaningful manner. Id. at 333.
Dahl asserts that he was entitled to pre-deprivation process, in particular a
pre-deprivation hearing, before he was assaulted by Sheriff Cook. Dahl asserts that
Sheriff Cook intended to discipline Dahl when he called him into his office and that Dahl
was entitled to a chance to express himself before Cook levied his punishment. (Pls.
Mem. of Law in Oppn to Mots. for Summ. J. at 23.) After reviewing the parties
submissions, it is clear that Dahls procedural due process claim is based on Sheriff
Cooks alleged assault.4
4 Dahl also summarily asserts that Sheriff Cook withdrew Dahls duties, blacklisted
Dahl, terminated his employment, and denied Dahl light-duty employment without due
process. Dahl offers no evidence to support a due process violation with respect to the
change of his duties, his assertion of blacklisting, or the denial of light duty
employment. To the extent that Dahl asserts that he was deprived of due process before
being terminated, his claim also fails. The record establishes that Dahl had ample
opportunity to be heard with respect to his discharge. Specifically, but not exclusively,
(Footnote Continued On Previous Page)
Here, the record reveals that Sheriff Cooks alleged assault was a random,
unauthorized act that occurred in the heat of the moment. In addition, Sheriff Cooks
actions likely violate state tort law. By its very nature, Sheriff Cooks assaultive and
possibly tortious conduct would make it impossible for Rice County to provide a
pre-deprivation hearing. There is no evidence that the assault occurred pursuant to a
county procedure, and it is illogical to conclude that the county could predict or anticipate
in advance when such an assault might occur. See Parratt v. Taylor, 451 U.S. 527, 541
(1981) (reasoning that where a loss of property is occasioned by a random, unauthorized
act, rather than state procedure, the state cannot predict when loss will occur), overruled
on other grounds by Daniels v. Williams, 474 U.S. 327 (1986).5 Further, Dahl is not able
to demonstrate inadequacy of post-deprivation remedies. Therefore, Dahls procedural
due process claim fails.
4. Substantive Due Process
Dahl asserts that Sheriff Cooks assault, while the Sheriff knew that Dahl had a
previous back injury, constitutes a substantive due process violation. In order to prevail
on his substantive due process claim, Dahl must show, that the government action was
truly irrational, that is, something more than . . . arbitrary, capricious, or in violation of
(Footnote Continued on Next Page)
Dahl was given the opportunity to request a hearing within 60 days of the receipt of his
August 2006 termination letter. (Zalasky Aff. 4, Ex. C.) Dahl did not request a
5 The Parratt rule also applies to due process claims based on an alleged
deprivation of liberty interests. See Zinermon v. Burch, 494 U.S. 113, 132 (1990).
state law. Graning, 172 F.3d at 617 (quoting Anderson v. Douglas County, 4 F.3d 574,
577 (8th Cir. 1993)). The government action in question must shock the conscience or be
otherwise offensive to judicial notions of fairness and human dignity. See Costello v.
Mitchell Pub. Sch. Dist. 79, 266 F.3d 916, 921 (8th Cir. 2001). Viewing the evidence in
the light most favorable to Dahl, the Court concludes that no reasonable juror could
conclude that Sheriff Cooks assault, which consisted of a single strike to the chest and
resulted in Dahl being pushed backwards into a chair, is sufficiently shocking so as to
constitute a substantive due process violation. Accordingly, Dahls substantive due
process claim fails.
5. Equal Protection
Dahl asserts that he was denied equal protection of the laws because another
employee was given a largely sedentary job while Dahl was not given light duty work.
A party claiming an equal protection violation that involves neither a suspect class nor a
fundamental right must prove that he was treated differently by the government than
similarly situated persons and the different treatment was not rationally related to a
legitimate government objective. Koscielski v. City of Minneapolis, 435 F.3d 898, 901
(8th Cir. 2006). In order to demonstrate this, Dahl must prove similarity to other
individuals or entities receiving favorable treatment. Id.
Dahl concedes that Defendants have established that the Rice County Sheriffs
Department has a more or less official no light duty work policy. (Pls. Mem. of Law
in Oppn to Mots. for Summ. J. at 27.) However, Dahl contends that after he was injured,
a largely sedentary job opened up and was filled by another licensed deputy. However,
the evidence submitted by Dahl falls far short of establishing a question of fact on his
equal protection claim. In particular, while Dahl offers vague assertions that he was
treated differently because he was not offered light duty work, he fails to submit evidence
suggesting that those people he claims to have been treated more favorably than he were
similarly-situated. Without such a showing, Dahls equal protection claim cannot
III. State-law Claims
In addition to his 1983 claims, Dahl also asserts several state-law claims,
including assault and battery against Sheriff Cook and Rice County, assault and
intentional infliction of emotional distress against Rabeneck and Rice County,
Whistleblower retaliation against Rice County, and defamation against Sheriff Cook,
Skarupa, and Rabeneck. The basis for the Courts jurisdiction over these claims is 28
U.S.C. 1367(a). Section 1367(a) permits a district court to exercise supplemental
jurisdiction over claims that are part of the same case or controversy as the claims that
fall within the district courts original jurisdiction. A district court may, in its discretion,
decline to exercise supplemental jurisdiction when all claims over which it has original
jurisdiction have been dismissed. 28 U.S.C. 1367(c)(3). Most often, when federal and
state claims are joined and the federal claims are dismissed on a motion for summary
judgment, courts dismiss the remaining state-law claims without prejudice in order to
6 Sheriff Cook is also entitled to qualified immunity on Dahls constitutional claims
because Sheriff Cooks conduct did not violate any clearly established constitutional
right. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
avoid making needless decisions of state law, as a matter of comity, and to promote
justice between the parties. Ivy v. Kimbrough, 115 F.3d 550, 552-53 (8th Cir. 1997).
The Court declines to exercise jurisdiction over Dahls remaining state-law claims. The
Court, therefore, dismisses these claims without prejudice so that they may be heard by a
Minnesota state court.
The Court believes that it would be in the best interest of the parties to resolve this
matter without the expense of further litigation. Although the Court is dismissing Dahls
claims, the state-law claims are dismissed without prejudice. Therefore, the Court
suggests that the parties consider utilizing the services of the Magistrate Judge to
negotiate a settlement. If the parties are interested, they may contact Kathy Thobe,
Calendar Clerk to Magistrate Judge Arthur J. Boylan, at 651-848-1210.
1. Defendants Motion for Summary Judgment (Doc. No. 53) is GRANTED
IN PART consistent with this Order.
2. Rabenecks Motion for Summary Judgment (Doc. No. 60) is GRANTED
IN PART consistent with this Order
3. Counts I, II, III, and IX, of Dahls Amended Complaint (Doc. No. 14) are
4. Counts IV, V, VI, VII, and VIII, of Dahls Amended Complaint (Doc. No.
Dated: December 23, 2008 s/Donovan W. Frank
Judge of United States District Court


  What day were you injured?

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  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



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