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Clark v. Pielert et al.: US District Court : 1983 - illegal arrest for obstruction; excessive force; immunity; equal protection (race); negligence

Civil No. 07-3649(DSD/JJG)
Yvonne Clark, on her own
behalf and on behalf of her
minor daughter, T.M.J.,
Officer Nick Pielert, Sgt.
Douglas Brunner, Officer
Frank Mazzuca and City
of New Hope,
Jordan S. Kushner, Esq., 431 South Seventh Street, Suite
2446, Minneapolis, MN 55415, counsel for plaintiff.
Jason M. Hiveley, Esq., Jon K. Iverson, Esq. and Iverson
Reuvers, LLC, 9321 Ensign Avenue South, Bloomington, MN
55438, counsel for defendants.
This matter is before the court on defendants motion for
summary judgment. Based on a review of the file, record and
proceedings herein, and for the reasons stated, defendants motion
is granted in part and denied in part.
This dispute arises out of defendants City of New Hope police
officers Nick Pielert (Pielert), Frank Mazzuca (Mazzuca) and
sergeant Douglas Brunners (Brunner) (collectively the
1 For purposes of this motion, the court recites the facts in
a light most favorable to plaintiffs. See Gosney v. Reliable Life
Ins. Co., 293 F.3d 1052, 1053 (8th Cir. 2002).
officers) response to a 911 hang-up call made from plaintiff
Yvonne Clarks (Clark) apartment in New Hope, Minnesota on April
26, 2007.1 After receiving the call around midnight, the 911
dispatcher unsuccessfully attempted to contact the caller. Soon
thereafter, Pielert and Brunner arrived at Clarks apartment and
heard voices coming from inside. Pielert knocked on the door to
the apartment several times. Clark eventually opened the door with
the chain still attached. Pielert told Clark of the 911 hang-up
call and indicated that he and Brunner wanted to know if there was
a problem. Clark responded that no one had called 911 and that
everything was fine. Pielert then asked permission to enter the
apartment, at which time Clarks three-year-old daughter, T.M.J.,
stuck her arm through the door and Clark told her to leave. Clark
then refused Pielerts request and closed the door.
After further knocking, Clark opened the door again with the
chain still attached. Pielert blocked the doorway with his foot
and asked if there were other people in the apartment. Clark
stated that there were not. Brunner then stepped forward and asked
Clark for identification. Clark refused and Brunner threatened to
break the door down, arrest Clark for obstructing justice and send
Clarks child away. Clark stepped back from the door and indicated
that Brunner and Mazzuca would have to break the door down to
enter. In response, Brunner forced entry to the apartment by
hitting the door twice with his shoulder.
After entering the apartment, Brunner and Pielert immediately
tackled Clark onto the couch. Brunner handcuffed Clark behind her
back, lifted her off the couch and directed her into the hallway.
Clark began shouting profanities at Brunner, and Brunner forced her
against the exterior wall adjacent to her apartment door and
tightened the handcuffs.
While Brunner restrained Clark, Pielert saw Clarks boyfriend,
Franklin Jones (Jones), walk down the hallway toward the living
room. Pielert instructed Jones to stop, sit on the couch and
provide identification. Jones complied. Pielert then noticed
Tyrone Wyer (Wyer) sitting at the kitchen table and commanded him
to place his hands on the table. Wyer complied. After Brunner
escorted Clark out of the apartment, Pielert questioned Jones and
Wyer about the 911 call and pat-searched them for weapons. Pielert
then looked around the rest of the apartment and opened a kitchen
cabinet and dresser drawers in the bedroom in search of Clarks
purse and identification. (Wyer Dep. at 17-19.)
As Brunner and Clark exited the apartment building, Clark
continued to shout profanities. Once outside, Brunner shoved Clark
into the concrete exterior wall of the apartment building and again
tightened the handcuffs. Brunner then moved Clark to the rear of
his police car and attempted to search her. Clark moved her leg
2 Clark testified that she suffered no injury when Pielert and
Brunner tackled her onto the couch. (Clark Dep. at 53.)
away from Brunner and said you cant search me. (Pl.s Dep. at
58.) Brunner responded by slamming Clark onto the car. At this
time, Mazzuca arrived and pinned Clarks head to the car by placing
his elbow on her neck. Mazzuca said to Clark move again, Im
going to tase your ass, and called her a piece of shit. (Pl.s
Dep. at 58; Mazzuca Dep. at 19.)
While Clark was pinned to the car, Brunner conducted a pat
search. Afterwards, Brunner and Mazzuca threw Clark headfirst into
the back of the squad car against the glass divider separating the
backseat. As a result of Brunner and Mazzucas alleged conduct,
Clark suffered marks on her wrists from the handcuffs, a bruise on
the back of her neck, a minor bruise on her face and a knot in her
Once Clark was in the squad car she heard Brunner say to
Mazzuca, we asked her if she wanted to do it the ghetto way.
(Pl.s Dep. at 63-64; Mazzuca Dep. at 21.) Brunner brought Clark
to the New Hope Police Department and charged her with misdemeanors
for disorderly conduct and obstructing legal process. Pielert and
Brunner assisted in fingerprinting and photographing Clark at the
police station. The charges against Clark were later dismissed.
On July 17, 2007, Clark brought a fourteen-count complaint in
state court for herself and T.M.J. alleging violations of 42 U.S.C.
3 The complaint asserts several claims on behalf of T.M.J.
Plaintiffs memorandum in opposition to defendants motion for
summary judgment, however, expressly references T.M.J. only in her
Minnesota Human Rights Act claim. Minn. Stat. 363A.12.
Nevertheless, plaintiffs counsel indicated at oral argument his
desire to pursue all asserted claims. Despite counsels
representations, the court determines that all of T.M.J.s
unbriefed claims have been waived, and those claims are dismissed.
See Graham v. Rosemount, Inc., 40 F. Supp. 2d 1093, 1101 (D. Minn.
1999) (failure to respond to defendants arguments resulted in
waiver of claims); cf. Berryhill v. Schiriro, 137 F.3d 1073, 1075
n.2 (8th Cir. 1998) (issue not raised or briefed generally waived).
1981 and 1983, and various state law claims against Pielert,
Brunner, Mazzuca and New Hope.3 Defendants removed to this court
on August 8, 2007, and moved for summary judgment on August 1,
I. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. See Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A fact is material only when its
resolution affects the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if
the evidence is such that it could cause a reasonable jury to
return a verdict for either party. See id. at 252.
On a motion for summary judgment, all evidence and inferences
are to be viewed in a light most favorable to the nonmoving party.
See id. at 255. The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial. See
Celotex, 477 U.S. at 324. Moreover, if a plaintiff cannot support
each essential element of her claim, summary judgment must be
granted because a complete failure of proof regarding an essential
element necessarily renders all other facts immaterial. Id. at
II. Section 1983 Claims
Section 1983 of Title 42 of the United States Code provides in
relevant part:
Every person who, under the color of any
statute, ordinance, regulation, custom, or
usage, of any State ... subjects, or causes to
be subjected, any citizen of the United States
... to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law.
Section 1983 is not itself a source of substantive rights but
merely affords a method for vindicating federal rights elsewhere
conferred. Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a
4 Clark asserts that the individual defendants engaged in a
conspiracy to violate her constitutional rights. However, no facts
support such an agreement. See Reasonover v. St. Louis County, 447
F.3d 569, 582 (8th Cir. 2006) (joint action by officers does not
alone support unlawful conspiracy). Therefore, summary judgment is
appropriate to the extent Clark seeks conspiratorial liability. In
addition, count five of Clarks complaint alleges that the officers
retaliated against her for asserting her constitutional rights.
See, e.g., Naucke v. City of Park Hills, 284 F.3d 923, 927-28 (8th
Cir. 2002) (elements of 1983 retaliation claim). The court does
not consider this claim, however, because it was not addressed by
the parties.
court considering a 1983 claim must first identify the specific
constitutional right allegedly infringed. Id. at 271 (citing
Graham v. Connor, 490 U.S. 386, 394 (1989)). Moreover, 1983
liability requires a causal link to, and direct responsibility
for, the deprivation of rights. Mayorga v. Missouri, 442 F.3d
1128, 1132 (8th Cir. 2006) (quotation omitted).
A. Individual Liability
Clark argues that the officers violated the Fourth Amendment
by illegally entering her home, arresting her without probable
cause and using excessive force, and that they discriminated
against her based on race in violation of the Fourteenth
Amendment.4 The officers maintain that they are entitled to
qualified immunity.
Qualified immunity protects government agents who perform
discretionary functions from civil liability, so long as the
challenged actions are objectively reasonable in light of clearly
established legal principles. See Anderson v. Creighton, 483 U.S.
635, 638 (1987). Qualified immunity is a question of law that the
court determines as early as possible so as to shield appropriate
officials from suit. See Gainor v. Rogers, 973 F.2d 1379, 1382-83
(8th Cir. 1992). In evaluating a claim of qualified immunity, the
initial inquiry is whether, the facts alleged show the officers
conduct violated a constitutional right. Saucier v. Katz, 533
U.S. 194, 201 (2001); Craighead v. Lee, 399 F.3d 954, 961 (8th Cir.
2005). If the facts alleged by a plaintiff do not establish a
violation of a constitutional right by an officer, no further
inquiry is necessary and qualified immunity is warranted. Saucier,
533 U.S. at 201.
However, if the facts do allege a constitutional violation,
the court must determine whether the right alleged to be violated
was clearly established so that a reasonable officer would
understand that the conduct he engaged in was unlawful. See id.;
Wilson v. Layne, 526 U.S. 603, 614-15 (1999). In other words, the
unlawfulness must be apparent in light of pre-existing law.
Anderson, 483 U.S. at 640. This second inquiry is fact intensive
and undertaken in light of the specific context of the case.
Saucier, 533 U.S. at 201. The court applies the doctrine of
qualified immunity in a manner that gives ample room for mistaken
judgments by protecting all but the plainly incompetent or those
who knowingly violate the law. Walker v. City of Pine Bluff, 414
5 Mazzuca never entered Clarks apartment and was not present
when Pielert and Brunner entered. Therefore, Mazzuca is entitled
to qualified immunity on the illegal entry claim.
F.3d 989, 992 (8th Cir. 2005) (quoting Hunter v. Bryant, 502 U.S.
224, 229 (1991)).
1. Fourth Amendment
a. Illegal Entry
The Fourth Amendment protects the right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures. U.S. Const. amend. IV. A
search and seizure inside a home without a warrant supported by
probable cause is presumptively unreasonable. Payton v. New York,
445 U.S. 573, 586 (1980). Only certain carefully delineated
exceptions overcome this presumption. See United States v.
Marshall, 986 F.2d 1171, 1173 (8th Cir. 1993) (citing Mincey v.
Arizona, 437 U.S. 385, 390 (1978)). Brunner and Pielert argue that
their warrantless entry of Clarks apartment was justified because
they were acting as community caretakers and exigent circumstances
In United States v. Quezada, the court identified a
difference between the standards that apply when an officer makes
a warrantless entry when acting as a so-called community caretaker
and when he or she makes a warrantleses entry to investigate a
crime. 448 F.3d 1005, 1007 (8th Cir. 2006). According to the
court, an officer acting in ways totally divorced from the
detection, investigation, or acquisition of evidence relating to
the violation of criminal law ... may enter a residence without a
warrant [upon] a reasonable belief that an emergency exists
requiring his or her attention. Id. (citing Mincey, 437 U.S. at
392-93; Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). On the
other hand, a warrantless entry by an officer acting as an
investigator must be justified by probable cause to believe that
a crime has been or is being committed and the existence of what
are called exigent circumstances. Id. One exigent circumstance
is the reasonably perceived risk of danger to the police or
others. Id. (citing Minnesota v. Olson, 495 U.S. 91, 100 (1990)).
The Supreme Court, however, has since clarified that the
subjective intent of an officer is irrelevant when responding to an
emergency. See Brigham City v. Stuart, 547 U.S. 398, 404-05
(2006); Ziegler v. Aukerman, 512 F.3d 777, 785 (6th Cir. 2008).
Instead, [a]n action is reasonable under the Fourth Amendment,
regardless of the individual officers state of mind, as long as
the circumstances, viewed objectively, justify [the] action.
Stuart, 547 U.S. at 404 (quoting Scott v. United States, 436 U.S.
128, 138 (1978)); see also United States v. Valencia, 499 F.3d 813,
815-16 (8th Cir. 2007); United States v. Uscanga-Ramirez, 475 F.3d
1024, 1028 (8th Cir. 2007). Thus, a warrantless search does not
violate the Fourth Amendment if (1) the totality of the
circumstances support an objectively reasonable belief that
6 Clark does not argue that the scope of Pielerts search was
immediate action is needed to protect the officers or others from
serious harm, and (2) the manner and scope of the search is
reasonable. See Stuart, 547 U.S. at 403-06; see also United States
v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008); United States v.
Najar, 451 F.3d 710, 718 (10th Cir. 2006). A reasonable belief is
a less exacting standard than probable cause. Quezada, 448 F.3d
at 1007 (citing Maryland v. Buie, 494 U.S. 325, 336-37 (1990)).
In this case, Pielert and Brunner responded to a 911 hang-up
call where the dispatcher could not reach the caller, reasonably
raising the possibility of an emergency. Upon arrival, the
officers heard several voices inside and their initial knocks went
unheeded. After Clark opened the door, she denied making a 911
call, lied about the presence of others within the apartment and
refused to provide identification. Based on these facts, Pielert
and Brunner could have reasonably believed that immediate action
was necessary to protect someone inside from harm. See Najar, 451
F.3d at 712-20 (finding reasonable entry based on similar facts).
In addition, Brunners manner of entry was reasonable because
Clarks refusal to unlatch the door required him to force entry by
breaking the latch. Therefore, the court determines that Pielert
and Brunner lawfully entered Clarks apartment and summary judgment
on this claim is warranted.6
b. Illegal Arrest
i. Arguable Probable Cause
A warrantless arrest violates the Fourth Amendment unless it
is supported by probable cause. Amrine v. Brooks, 522 F.3d 823,
832 (8th Cir. 2008). Because the qualified immunity privilege
extends to a police officer who is wrong, so long as he is
reasonable, the governing standard for a Fourth Amendment unlawful
arrest claim is not probable cause in fact but arguable probable
cause. Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir.
2005) (citation and quotation omitted). Probable cause exists
when the totality of the circumstances shows that a prudent person
would believe that the arrestee has committed a crime. Amrine,
522 F.3d at 832. In assessing probable cause, a court looks at
the objective facts available to the officers at the time of the
arrest, Sheets v. Butera, 389 F.3d 772, 777 (8th Cir. 2004), and
gives the officers substantial latitude in interpreting and
drawing inferences from factual circumstances, Kuehl v. Burtis,
173 F.3d 646, 650 (8th Cir. 1999) (citation and quotation omitted).
The officers contend there was arguable probable cause to arrest
Clark for obstructing legal process because she lied about the
presence of others in the apartment, refused to provide
7 Although Clark was also charged with disorderly conduct,
defendants do not argue that arguable probable cause existed for
that offense.
identification and refused Pielert and Brunners entry into the
Minnesota Statutes 609.50 prohibits intentionally
(1) obstruct[ing], hinder[ing], or prevent[ing] the lawful
execution of any legal process, civil or criminal, or apprehension
of another on a charge or conviction of a criminal offense; [and]
(2) obstruct[ing], resist[ing], or interfer[ing] with a peace
officer while the officer is engaged in the performance of official
duties. Violation of this statute requires the accused to
intentionally and physically obstruct or interfere with an
officers performance of his official duties. State v. Tomlin, 622
N.W.2d 546, 548-49 (Minn. 2001) (citing State v. Krawsky, 426
N.W.2d 875, 877-78 (Minn. 1988)). An individual does not violate
the statute by directing ordinary verbal criticism at an officer,
Krawsky, 426 N.W.2d at 878, lying or omitting information so long
as the lie does not physically prevent police from performing their
duties, Tomlin, 622 N.W.2d at 549, or refusing to provide
identification when there is no reasonable suspicion that the
individual is engaged in criminal activity, Gainor, 973 F.2d at
In this case, Clarks lie about others in the apartment did
not physically prevent the officers from performing their duties.
Moreover, the officers do not argue that they had reasonable
suspicion to believe Clark was engaged in criminal activities at
the time she refused to provide identification. Therefore, the
issue is whether Clarks refusal to remove the chain to her door
establishes arguable probable cause that she obstructed the
officers response to the 911 call.
As discussed above, Pielert and Brunner had a right to enter
Clarks apartment because of a reasonable belief that an emergency
existed. Clark, however, had no affirmative duty to assist their
entry, and she cannot be criminally punished for refusing to take
the chain off the door. See District of Columbia v. Little, 339
U.S. 1, 4-7 (1950) (interpreting statute to avoid constitutional
issues and finding no affirmative duty to unlock door for health
inspection even if inspector had right to enter); United States v.
Prescott, 581 F.2d 1343, 1350-51 (9th Cir. 1978) (passive refusal
to permit warrantless search cannot be a crime). Moreover, Clarks
actions did not physically prevent the officers from investigating
the 911 call. Instead, Brunner easily forced entry after Clark
moved away from the door and Clark did not actively obstruct
Pielert and Brunner once they entered the apartment. Therefore,
the court determines that there was no arguable probable cause to
arrest Clark for obstructing legal process.
ii. Causation
Pielert and Brunner observed the actions leading to Clarks
arrest, physically participated in the arrest and assisted in
processing her at the police station. Moreover, Brunner decided
the crimes with which to charge Clark. Therefore, the court
determines that Pielert and Brunner caused Clarks arrest.
Mazzuca, on the other hand, arrived at the scene only after Brunner
handcuffed Clark and had her outside. Mazzuca did not observe the
events allegedly establishing probable cause to arrest Clark, did
not make the decision to arrest and charge Clark and did not
transport her to the police station. (Mazzuca Dep. at 29.)
Therefore, the court determines that Mazzuca did not cause Clarks
arrest by merely assisting Brunner. See Provost v. City of
Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) ([T]he direct physical
participation of the defendant in the constitutional violation is
not alone a sufficient basis for holding the defendant liable if
the defendant had no awareness or notice of the facts that rendered
the action illegal.); cf. Loria v. Gorman, 306 F.3d 1271, 1288 (2d
Cir. 2002) (Absent significant indications to the contrary, an
officer is entitled to rely on his fellow officers determination
that an arrest was lawful.). Accordingly, the court denies
Pielert and Brunners motion for summary judgment on this claim,
and grants summary judgment in favor of Mazzuca.
c. Excessive Force
An officer violates the Fourth Amendment when he uses
excessive force in the apprehension or detention of a free citizen.
See Graham, 490 U.S. at 395. Excessive force is that which is
excessive under objective standards of reasonableness. Wilson
v. City of Des Moines, 293 F.3d 447, 450 (8th Cir. 2002) (quoting
Saucier, 533 U.S. at 201-02). When evaluating an officers use of
force, a court must pay careful attention to the facts and
circumstances of [the] particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether [s]he is
actively resisting arrest or attempting to evade arrest by flight.
Graham, 490 U.S. at 396. To establish excessive force, a plaintiff
must show actual injury, which is more than de minimus, Crumley
v. City of St. Paul, 324 F.3d 1003, 1007 (8th Cir. 2003), but less
than significant, Dawkins v. Graham, 50 F.3d 532, 535 (8th Cir.
1995). More than minor injury resulting from the application of
handcuffs is required to support an excessive force claim. Hanig
v. Lee, 415 F.3d 822, 824 (8th Cir. 2005) (citing Crumley, 324 F.3d
at 1008).
The reasonableness of a particular use of force must be
judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight. Graham, 490 U.S.
at 396 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). The
calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments
in circumstances that are tense, uncertain, and rapidly evolving
about the amount of force that is necessary in a particular
situation. Id. at 396-97; see also Nelson v. County of Wright,
162 F.3d 986, 990-91 (8th Cir. 1998). However, it is well
established that no greater force should be used in making an
arrest than was reasonable under the circumstances. Nelson, 162
F.3d at 990.
In this case, Clark was arrested for two minor, non-violent
misdemeanors and few facts suggest that she posed an immediate
threat to the officers safety. Moreover, Clark alleges that she
resisted arrest only by moving her leg away from Brunner when he
attempted to pat search her. According to Clark, however, Brunner
pushed her against two walls, slammed her head onto the back of his
police car and threw her headfirst into the glass divider
separating the backseat of his car. Similarly, Mazzuca allegedly
pinned Clarks head to the police car and helped Brunner throw her
into the backseat. As a result of this conduct, Clark allegedly
suffered injuries to her wrists, neck, head and face. Taking all
evidence and inferences in Clarks favor, the court determines that
Brunner and Mazzuca used excessive force against Clark. In
contrast, Clark testified that Pielert tackled her onto the couch
but that she suffered no injury as a result. (Clark Dep. at 50,
53.) Pielert had no additional physical contact with Clark.
Therefore, the undisputed facts show that Pielert did not use
excessive force and Pielert is entitled to qualified immunity on
this claim.
The court further determines that the unreasonableness of the
alleged use of force by Brunner and Mazzuca was apparent. The
facts in Gainor are particularly germane. In that case, Gainor was
arrested for two misdemeanors. Gainor, 973 F.2d at 1382. He
alleged that during his arrest, the officers, without provocation,
threw him to the ground, twisted his arms, and kneeled on his back
and legs, causing facial abrasions and injuries to his wrist and
knee. Id. The court affirmed the district courts denial of
qualified immunity on Gainors excessive force claim, noting that
his alleged misconduct was neither violent nor serious, little
evidence indicated that he posed a physical threat to anyone and a
factual dispute existed as to whether he was actively resisting
arrest. Id. at 1388. The same considerations apply to this case.
Accordingly, qualified immunity is not warranted, and the court
denies summary judgment as to Brunner and Mazzuca on this claim.
2. Equal Protection
Clark contends that the officers actions were racially
motivated based on Brunners ghetto way comment. A Fourteenth
Amendment equal protection claim under 42 U.S.C. 1981 and 1983
requires a plaintiff to prove that an officer exercised his
discretion to enforce the law based on a plaintiffs race. Johnson
v. Crooks, 326 F.3d 995, 1000 (8th Cir. 2003) (citing United States
v. Armstrong, 517 U.S. 456, 465 (1996)). Evidence of such
discretion requires proof of discriminatory effect and purpose.
Id. To show that an arrest was racially-motivated, a plaintiff
must normally prove that similarly situated individuals were not
... arrested. Id. However, a plaintiff can also establish a
prima facie equal protection claim with direct evidence of racial
discrimination. United States v. Frazier, 408 F.3d 1102, 1108 (8th
Cir. 2005) (citing Johnson, 326 F.3d at 1000).
Clark has provided no evidence of similarly situated
individuals. The word ghetto, however, is a racially-charged
word and Brunners use of that word in reference to Clark raises a
factual issue as to whether he treated Clark differently based on
her race. Therefore, Brunner is not entitled to qualified immunity
on this claim. No evidence, however, suggests that Pielert or
Mazzuca treated Clark differently because of her race, and they are
entitled to qualified immunity. Accordingly, summary judgment on
this claim is denied as to Brunner and granted as to Pielert and
B. Municipal Liability
Clark argues that New Hopes failure to adequately train its
officers caused the deprivation of her Fourth and Fourteenth
Amendment rights. Municipalities are not vicariously liable under
1983 for an employees unconstitutional acts. Szballa v. City of
Brooklyn Park, 486 F.3d 385, 389 (8th Cir. 2007) (en banc) (citing
Monell v. Dept of Soc. Servs., 436 U.S. 658, 691 (1978)). Rather,
municipal liability exists only if a plaintiff can establish that
either a municipal policy or custom is the moving force behind the
constitutional violation. Wedemeier v. City of Ballwin, 931 F.2d
24, 26 (8th Cir. 1991). A municipalitys inadequate training of
employees can serve as the basis of 1983 liability only when a
plaintiff shows that the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come
into contact. City of Canton v. Harris, 489 U.S. 378, 388-89
(1989). To establish deliberate indifference, a plaintiff must
prove that the municipality had notice that its procedures were
inadequate and likely to result in a violation of constitutional
rights. Jennings v. Wentzville R-IV Sch. Dist., 397 F.3d 1118,
1122 (8th Cir. 2005) (quoting Larson v. Miller, 76 F.3d 1446, 1454
(8th Cir. 1996) (en banc)). Notice is implied if the failure to
train is so likely to result in a constitutional violation that the
need for training is patently obvious. Id.
The only evidence supporting this claim is Pielerts
deposition testimony that New Hope did not train him regarding
constitutional rights. (Pielert Dep. at 10.) However, the fact
that a particular [employee] may be unsatisfactorily trained will
not alone suffice to fasten liability on the [governmental
8 Clarks complaint alleges these claims against defendants,
which the court construes as an assertion of vicarious liability
against New Hope based on the actions of its officers. See Hawkins
v. City of Farmington, 189 F.3d 695, 706 (8th Cir. 1999)
(construing complaint broadly to assert vicarious liability against
city); see also Hagen v. Burmeister & Assocs., Inc., 633 N.W.2d
497, 504 (Minn. 2001) (employer vicariously liable for employees
intentional torts if tort occurs within work-related limits and is
related to employees duties); Schneider v. Buckman, 433 N.W.2d 98,
101 (Minn. 1988) (employer vicariously liable for employees torts
committed within scope of employment). Accordingly, the following
analysis applies equally to New Hope.
entity.] Thelma D. v. Bd. of Educ., 934 F.2d 929, 934-35 (8th
Cir. 1991) (quoting Harris, 489 U.S. at 390-91). Therefore,
Pielerts testimony does not create a genuine issue of material
fact, and summary judgment in favor of New Hope is warranted.
III. State Law Claims
Clark alleges that defendants violated the Minnesota Human
Rights Act (MHRA) and committed assault, battery, false
imprisonment, trespass and negligence.8 Defendants argue that they
are entitled to official immunity or, alternatively, that Clark has
not established a prima facie case for any of the state law claims.
A. Official Immunity
The doctrine of official immunity protects public officials
from liability for discretionary actions taken in the course of
their official duties. Bailey v. City of St. Paul, 678 N.W.2d
697, 700 (Minn. Ct. App. 2004) (citing Janklow v. Minn. Bd. of
Examrs for Nursing Home Admrs, 552 N.W.2d 711, 716 (Minn. 1996)).
Such immunity exists to protect public officials from the fear of
personal liability that might deter independent action and impair
effective performance of their duties. Id. (quoting S.L.D. v.
Kranz, 498 N.W.2d 47, 50 (Minn. Ct. App. 1993)). Official immunity
analysis proceeds in two steps. Id. at 701. First, a court asks
whether the conduct challenged by the plaintiff is discretionary or
ministerial. See id. Second, if the conduct is discretionary, a
court asks whether the officers conduct was malicious or willful.
See id.
Official immunity protects discretionary acts, which are acts
undertaken in the exercise of individual judgment. Id. However,
official immunity does not protect ministerial acts, which are acts
undertaken pursuant to a specific duty arising from fixed and
designated facts. Id. Generally, police officers are classified
as discretionary officers entitled to [official] immunity.
Johnson v. Morris, 453 N.W.2d 31, 42 (Minn. 1990) (citing Elwood v.
Rice County, 423 N.W.2d. 671, 678 (Minn. 1988)). Here, the
officers conduct involved the exercise of individual judgment as
to whether to enter Clarks apartment, whether to arrest Clark and
the amount of force to use in arresting Clark. Therefore, the
officers are protected absent a showing of willfulness or malice.
A public official commits willful or malicious conduct if he
intentionally commits an act that he has reason to believe is
prohibited. Rico v. State, 472 N.W.2d 100, 106-07 (Minn. 1991).
A plaintiff cannot rely on bare allegations of malice to overcome
a defense based on official immunity. Harlow v. Fitzgerald, 457
U.S. 800, 817 (1982). Instead, she must present specific facts
evidencing bad faith. Reuter v. City of New Hope, 449 N.W.2d 745,
751 (Minn. Ct. App. 1990). Evidence that an officer intentionally
acted in a manner later determined to be unlawful does not alone
establish malice. Greiner v. City of Champlin, 27 F.3d 1346, 1355
(8th Cir. 1994) (citing Rico, 472 N.W.2d at 106-07).
The only evidence of Pielerts bad faith is his participation
in Clarks arrest. Wyer, however, testified that Pielert was
calm during the incident and that he wasnt rude. (Wyer Dep.
at 24.) Moreover, after Clark was taken to the police station,
processed and released, Pielert offered her a ride home, which she
declined. (Pielert Dep. at 51-52; Clark Dep. at 66-67.) This
evidence belies any alleged bad faith by Pielert, and he is
entitled to official immunity on Clarks state law claims.
Brunners alleged use of force and ghetto way comment, however,
create a fact question as to whether he acted willfully or
maliciously. Similarly, Mazzucas alleged use of force and
reference to Clark as a piece of shit creates a fact issue as to
whether he acted in bad faith. Accordingly, Brunner and Mazzuca
are not entitled to official immunity.
B. Substantive Claims
1. Minnesota Human Rights Act
Clark and T.M.J. argue that Brunner and Mazzuca discriminated
against them in violation of the MHRA. The MHRA prohibits
discrimination against any person in the access to, admission to,
full utilization of or benefit from any public service because of
race. Minn. Stat. 363A.12, subdiv. 1. This includes
discriminatory conduct by law enforcement officers. See State ex
rel. Beaulieu v. City of Mounds View, 518 N.W.2d 567, 570 (Minn.
As discussed above, Brunners alleged ghetto way comment
creates a fact issue as to whether he discriminated against Clark
with respect to race. Nothing, however, suggests that Mazzucas
actions were discriminatory. Therefore, the court denies Brunners
motion for summary judgment as to Clark on this claim and grants
Mazzucas motion. Moreover, no evidence supports T.M.J.s claim of
discrimination, and summary judgment is warranted.
2. Assault & Battery
An assault is an unlawful threat to do bodily harm to another
with present ability to carry the threat into effect. Dahlin v.
Fraser, 288 N.W. 851, 852 (Minn. 1939). However, the threatened
use of force by a peace officer to effect an arrest is lawful if
the threatened force is reasonable. Johnson v. Morris, 453 N.W.2d
31, 41 (Minn. 1990) (citing Minn. Stat. 609.06(1)(a)).
Therefore, to establish an assault claim against an arresting
officer, a plaintiff must establish that the officer threatened to
use unreasonable force - that is, more force than was necessary
under the circumstances. Johnson, 453 N.W.2d at 41 (citing Minn.
Stat. 629.32). Battery is the intentional, unpermitted
offensive contact with the person of another. Paradise v. City of
Minneapolis, 297 N.W.2d 152, 155 (Minn. 1980). When a police
officer makes an arrest, a battery claim is actionable only if the
officer used excessive force. Johnson, 453 N.W.2d at 40-41.
For the reasons noted earlier, a fact issue remains as to
whether Brunner and Mazzuca used or threatened to use excessive
force in arresting Clark. Therefore, summary judgment on this
claim is not warranted.
3. False Imprisonment
A claim for false imprisonment requires a showing of (1)
words or acts intended to confine, (2) actual confinement, and (3)
awareness by the plaintiff that [s]he is confined. Blaz v. Molin
Concrete Prods. Co., 244 N.W.2d 277, 279 (Minn. 1976) (citations
omitted). A warrantless arrest made with probable cause does not
constitute false imprisonment. Johnson, 453 N.W.2d at 40.
In this case, Brunner arrested Clark without arguable probable
cause, and summary judgment in his favor is not warranted. See
Bahr v. County of Martin, 771 F. Supp. 970, 979 (D. Minn. 1991).
However, as indicated earlier, Mazzuca did not cause Clarks
arrest, and he is entitled to summary judgment on this claim.
4. Trespass
Trespass is the unauthorized entry on anothers land without
consent. Special Force Ministries v. WCCO TV, 584 N.W.2d 789, 792
(Minn. 1998). A permitted entrant may become a trespasser by
exceeding the scope of consent. Id. (citation omitted). Here,
Mazzuca never entered Clarks apartment and Brunner had the right
to enter. Therefore, summary judgment is warranted on this claim.
5. Negligence
Negligence requires proof of a duty, breach of that duty,
injury proximately caused by the breach and damages. Meyer v.
Lindala, 675 N.W.2d 635, 639 (Minn. Ct. App. 2004) (citing Schweich
v. Ziegler, Inc., 463 N.W.2d 722, 729 (Minn. 1990)). Based on the
courts determination that Clark was arrested without probable
cause and that a fact issue remains as to the level of force used
against her, the court also determines that summary judgment on
this claim is not warranted as to Brunner and Mazzuca.
Accordingly, based upon the file, record and proceedings
herein, and for the reasons stated, IT IS HEREBY ORDERED that
defendants motion for summary judgment:
1. On all claims asserted on behalf of T.M.J. is granted.
2. On the 1983 conspiracy claim is granted.
3. On the illegal entry claim is granted.
4. On the illegal arrest claim is denied as to Pielert and
Brunner, and granted as to Mazzuca.
5. On the excessive force claim is granted as to Pielert and
denied as to Brunner and Mazzuca.
6. On the equal protection claim is granted as to Pielert
and Mazzuca, and denied as to Brunner.
7. On the 1983 municipal liability claim against New Hope
is granted.
8. On Clarks Minnesota Human Rights Act claim is granted as
to Pielert and Mazzuca, and denied as to Brunner and New Hope.
9. On the assault and battery claims is granted as to
Pielert and denied as to Brunner, Mazzuca and New Hope.
10. On the false imprisonment claim is granted as to Pielert
and Mazzuca, and denied as to Brunner and New Hope.
11. On the trespass claim is granted as to all defendants.
12. On the negligence claim is granted as to Pielert and
denied as to Brunner, Mazzuca and New Hope.
Dated: January 5, 2009
s/David S. Doty
David S. Doty, Judge
United States District Court


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