Yzaguirre v. Norling
Filing
29
MEMORANDUM OPINION AND ORDER. Defendant's Motion for Summary Judgment (Doc. No. 11 ) is DENIED in its entirety.(Written Opinion). Signed by Judge Donovan W. Frank on 12/21/2011. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Nicole Yzaguirre,
Civil No. 10-3793 (DWF/JJK)
Plaintiff,
v.
MEMORANDUM
OPINION AND ORDER
Eric Norling,
in his individual capacity,
Defendant.
_______________________________________________________________________
Jill Clark, Esq., Jill Clark, PA, counsel for Plaintiff.
Amanda L. Stubson, Esq., Jason M. Hiveley, Esq., and Jon K. Iverson, Esq., Iverson
Reuvers, LLC, counsel for Defendant.
_______________________________________________________________________
INTRODUCTION
This matter is before the Court on Defendant’s Motion for Summary Judgment
(Doc. No. 11). For the reasons set forth below, the Court denies Defendant’s motion.
BACKGROUND
Plaintiff’s claims arise from Plaintiff’s arrest at her place of employment. On
June 7, 2010, Plaintiff was working in the MoneyCenter at Wal-Mart in Bloomington,
Minnesota. (Doc. No. 13, Hively Aff., Ex. A (“Yzaguirre Dep.”) at 14:1-17, 22:2-9.) On
that date, suspect James Bulger and an accomplice Bulger identified only as “L.A.” went
to Wal-Mart to cash a forged United States Treasury check. (Doc. No. 14, Norling Aff.,
Ex. 2 (“Bulger Interview”); Yzaguirre Dep. 26:2-16.) The check was originally made
payable to Kristina Campbell in the amount of $674 but had been altered to be made
payable to “James O Bulger” in the amount of $3,674. (Norling Aff. ¶ 2, Ex. 1;
Yzaguirre Dep. 22:10-23:1, Ex. 1.) Plaintiff had never seen Bulger before but had been
introduced to the individual known as L.A. by a mutual friend, Markita Seahorn, a few
months earlier. (Yzaguirre Dep. 25:19-26:16, 37:17-39:6.)
Bulger and L.A. went to the MoneyCenter area of the store, and L.A. observed
from a short distance away as Bulger approached Plaintiff’s lane to cash the forged
check. (Id. at 26:6-16.) Bulger signed the back of the check, handed the check and his
I.D. to Plaintiff, and typed in his social security number on a keypad while Plaintiff typed
in Bulger’s state ID number and the amount of the check. (Id. at 26:6-27:15.) Plaintiff
gave Bulger $3,674, and Bulger and L.A. left the store. (Id. at 26:14-16.)
Plaintiff did not notice anything suspicious about the check at the time Bulger
handed it to her, however, she explained that, after Bulger left “I looked at it, and then it
just -- I don’t know, things weren’t really looking right to me, so then I just left it out so I
could show my manager right away and let him figure it out.” (Id. at 40:11-41:11.) After
showing her manager the check, he turned it over to loss prevention. (Id. at 44:11-24.)
Plaintiff was terminated the next day by Wal-Mart because Plaintiff was still in her
probationary employment period, and the check she accepted was fake and in an amount
greater than $100. (Id. at 45:21-47:15.) Plaintiff was told to re-apply in 60 days. (Id. at
49.)
2
On the day of her termination for cashing the fake check, Plaintiff obtained L.A.’s
cell phone number from Seahorn and sent a text message to L.A. indicating she was
going to call the police on him because “he was with the person that cashed the fake
check, and . . . I got fired because of that.” (Id. at 54:6-55:3, 57:21-24.) L.A. sent a text
message to Plaintiff in response indicating that he knew where she lived and that he
would kill her. (Id. at 55:1-14.) Plaintiff never reported L.A. to the police. (Id. at
55:22-24.)
On July 7, 2010, Defendant became involved in the investigation of the check
forgery. (Hively Aff., Ex. B (“Norling Dep.”) at 13:4-15:14; Norling Aff. ¶ 2.) Upon
viewing the United States Treasury check at issue, Defendant determined that the original
name on the check had been replaced with Bulger’s name and that a “3” was added to the
original amount of “$674” to make it “$3,674.” (Norling Aff. ¶ 3.)
On August 20, 2010, Detective Norling and United States Secret Service Agent
Richard Grossheim arrested Bulger for the check forgery. (Id. ¶ 6.) Bulger made a
statement to police, in which he explained that L.A. had told him he needed to approach a
particular teller because she was his “inside connection.” 1 (See Norling Dep., Ex. 2 at
5:7-13, 7:11-15; Doc. No. 16, Hively Supp. Aff. ¶ 1, Ex. C.)
Defendant then contacted Wal-Mart to determine the identity of the teller.
(Norling Aff. ¶ 8.) Wal-Mart identified the teller as Plaintiff Nicole Yzaguirre and
1
Plaintiff maintains that L.A. never asked her to cash a forged check for him.
(Yzaguirre Dep. at 39:10-19.)
3
indicated that, while she had been initially terminated for cashing the fake check, Plaintiff
had been re-hired and would be working the following week. (Id.; see also Yzaguirre
Dep. at 46:1-5, 49:2-50:4.)
On August 27, 2010, Detective Norling and Agent Grossheim interviewed
Plaintiff at Wal-Mart, where she was working, at that time, as a cashier. (Norling Dep. at
41:1-8; Yzaguirre Dep. at 50:8-52:2.) Detective Norling and Agent Grossheim asked
Plaintiff, among other things, how she knew the individual who was with James Bulger.
(Yzaguirre Dep. at 53:22-54:5.) Plaintiff responded that she knew the person with Bulger
through her friend Markita Seahorn and that she had texted him after she cashed the fake
check “[b]ecause he pretty much cost[] me my job.” (Id. at 53:20-54:22.) Because
Plaintiff did not have the phone number for Seahorn or the individual with Bulger, 2
Detective Norling asked Plaintiff to come to the Bloomington Police Department to
produce her cell phone records. (Id. at 63:1-5; Compl. ¶ 8.)
Defendant contacted Plaintiff on August 30, 2010, and further explained that she
needed to come to the Bloomington Police Department (at 12:30 p.m. the following day)
for a formal booking process, that she was not being charged with a crime yet, and that
she would be immediately released. (Norling Aff. ¶ 10, Ex. 3 at 3-4.)
On August 31, 2010, Plaintiff’s attorney, Jill Clark contacted Defendant by phone
and told Defendant that he should not contact Plaintiff. (Norling Aff. ¶ 11.) Before noon
2
Plaintiff claims that Defendant took her cell phone out of her hand without her
consent and searched it. (Yzaguirre Dep. at 52:15-53:19.)
4
on that date, Ms. Clark sent Defendant a memorandum (via facsimile and e-mail)
memorializing their conversation, in which she claimed to assert Plaintiff’s right to
remain silent and Plaintiff’s right to counsel. (Clark Decl. ¶ 2, Ex. 1 ¶ 5.) Because
Plaintiff did not appear at the scheduled time, Defendant decided to go to Wal-Mart to
arrest her. (Norling Dep. at 87:14-24; Norling Aff. ¶ 12.) At 2:30 p.m., Defendant went
to Wal-Mart to arrest Plaintiff. (Norling Dep. at 53:9-17; Norling Aff. ¶ 12 (“Because
Plaintiff did not voluntarily appear at the Police Department on August 31, 2010, as
expected, I went to Wal-Mart at 2:30 p.m., to arrest Plaintiff for probable cause forgery
and have her booked at the police department.”))
Detective Norling went to Wal-Mart, entered the break room where Plaintiff was
on a fifteen-minute break, asked Plaintiff to stand up, put handcuffs on her, and explained
that he was arresting her. (Yzaguirre Dep. at 61:24-15, 82:6-9.) Plaintiff claims that
Defendant “specifically told me that he was arresting me because I did not come to the
12:30 meeting. He did not say I was being arrested for felony forgery (or anything
similar).” (Yzaguirre Aff. ¶ 4.) Detective Norling then “walked [Plaintiff] through the
store, all the way to the front out to the police car.” (Yzaguirre Dep. at 62:10-15; Norling
Dep. at 87:9-10.) Plaintiff further claims that Defendant told her supervisor at the time of
her arrest at Wal-Mart that she had “pending charges” (when in fact there were no
charges pending) and thus caused her suspension. (Yzaguirre Dep. at 66-67, 73;
Yzaguirre Aff. ¶ 5.) After her arrest, Plaintiff indicated that she wanted an attorney and
5
did not make a statement. (Yzaguirre Dep. at 64:19-65:19.) Plaintiff was photographed,
fingerprinted, and released. 3 (Id. at 64:14-66:4.)
Following his investigation and Plaintiff’s arrest, Defendant submitted the case to
the Hennepin County Attorney’s Office for the evaluation of felony forgery charges
against Bulger and aiding and abetting felony forgery charges against Plaintiff. (Norling
Aff. ¶ 13.) To date, Plaintiff has not been criminally charged in relation to the check
forgery. (See Yzaguirre Aff. ¶ 5.)
3
Defendant’s report, dated September 9, 2010, states, in relevant part:
On 08/30/2010 I contacted Yzaguirre and stated that I needed her to come
to Bloomington Police Department for a formal booking process
(fingerprints, photos, and a formal statement). I advised her that she wasn’t
being charged with a crime at this time and that I would immediately
release her. Because of the severity of the crime and the ongoing
investigation, I wanted a formal booking process completed on her and I
had probable cause to arrest her (department protocol). We worked out a
time around her work schedule and made an appointment for 1230 the
following day.
The following day I received a call from Jill Clark stating that she was an
Attorney for the family of Yzaguirre. She advised me not to speak with her
client. I was unable to confirm Jill Clark’s identity as an attorney over the
phone.
Yzaguirre didn’t show-up for our appointment for the booking process at
12:30 PM. Detective Krogh and I went to Wal-Mart at 2:30 PM to see if
Yzaguirre had shown up to work. She was at work and I arrested her for
PC forgery without incident. I transported her to the Bloomington Police
Department where she was booked and released pending charges. She
refused to speak with me at the Bloomington Police Department without
her attorney present.
(Norling Aff., Ex. 3 at 3-4.)
6
In this action, Plaintiff asserts two claims against Defendant: (1) Violation of 42
U.S.C. § 1983 (Count I); and (2) Intentional Interference with Contract (Count II).
Defendant now moves for summary judgment.
DISCUSSION
I.
Summary Judgment 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(a). 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 the mere allegations or denials of his pleading, but must set forth specific
7
facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986).
II.
Plaintiff’s Claims
Defendant has moved for summary judgment with respect to both Plaintiff’s claim
of First Amendment retaliation and her claim of intentional interference with contract.
A.
First Amendment Retaliation Claim
Plaintiff asserts that Defendant violated 42 U.S.C. § 1983 when he arrested her at
her place of employment in retaliation against her for exercising her constitutional right
to remain silent and freedom to associate with counsel. Plaintiff asserts that the exercise
of both of these liberties implicates the First Amendment.
“To establish a First Amendment retaliation claim under 42 U.S.C. § 1983, the
plaintiff must show (1) he engaged in a protected activity, (2) the government official
took adverse action against him that would chill a person of ordinary firmness from
continuing in the activity, and (3) the adverse action was motivated at least in part by the
exercise of the protected activity.” Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004).
In short, a plaintiff must show that the government official “took the adverse action
because the plaintiff engaged in the protected speech.” Id. The causal connection
element is generally a question for the jury, “but it can provide a basis for summary
judgment when the ‘question is so free from doubt as to justify taking it from the jury.’”
Id.
8
Defendant contends that he is shielded from Plaintiff’s First Amendment
retaliation claim by qualified immunity. The doctrine of qualified immunity protects
state actors from civil liability when “‘their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). A plaintiff can overcome the defense of qualified immunity by
showing that: “(1) the facts, viewed in the light most favorable to the plaintiff,
demonstrate the deprivation of a constitutional or statutory right; and (2) the right was
clearly established at the time of the deprivation.” Parrish v. Ball, 594 F.3d 993, 1001
(8th Cir. 2010) (internal quotation omitted).
The evidence before the Court reflects that Plaintiff was arrested at her workplace
on August 31, 2010, shortly after Defendant learned that she would not be attending the
scheduled 12:30 p.m. meeting. The impetus behind Plaintiff’s arrest is a genuine issue of
material fact in dispute by the parties. Plaintiff asserts that Defendant’s basis for
arresting her was simply retaliatory in nature. She claims that Defendant decided to
arrest her solely because she had retained counsel and refused to attend the meeting; but
for the exercise of these freedoms, Defendant would not have arrested Plaintiff.
Defendant appears to concede that Plaintiff’s failure to appear for the scheduled meeting
supported, at least in part, his decision to effectuate the arrest. (Norling Aff. ¶ 12
(“Because Plaintiff did not voluntarily appear at the Police Department on August 31,
9
2010, as expected, I went to Wal-Mart at 2:30 p.m., to arrest Plaintiff for probable cause
forgery and have her booked at the police department.”).) 4
Viewing the facts in the light most favorable to Plaintiff, a jury could reasonably
conclude that Plaintiff’s decisions to retain an attorney and not to meet with Defendant at
the police station at the scheduled time were substantial factors in Defendant’s decision
to arrest her. See Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010)
(“Retaliation need not have been the sole motive, but it must have been a ‘substantial
factor’ in the decision to arrest.”). It also appears to the Court that the threat of arrest as a
result of associating with an attorney or refusing to speak to law enforcement would
likely “chill a person of ordinary firmness” from engaging in those protected activities.
See id.
Based on the above, the Court determines that Plaintiff has presented sufficient
evidence to overcome Defendant’s assertions of qualified immunity and thus to survive
summary judgment. In so holding, the Court notes that it is not concluding, as a matter of
law, that Defendant retaliated against Plaintiff in violation of 42 U.S.C. § 1983. Rather,
the Court concludes that, viewing the evidence in the light most favorable to Plaintiff, a
reasonable juror could conclude that Defendant arrested Plaintiff as a direct result of her
4
Although the Court need not reach the issue, the Court seriously questions
whether probable cause existed for Plaintiff’s arrest.
10
decisions to retain counsel and to not meet with Defendant as scheduled (and not on the
basis of probable cause for the underlying offense). 5
B.
Intentional Interference with Contract Claim
Plaintiff also claims that Defendant intentionally interfered with her employment
contract with Wal-Mart.
To establish a claim for tortious interference with a contractual relationship, a
plaintiff must demonstrate: “(1) the existence of a contract; (2) the alleged wrongdoer’s
knowledge of the contract; (3) intentional procurement of its breach; (4) without
justification; and (5) damages.” Furlev Sales and Assoc., Inc. v. N. Am. Auto.
Warehouse, Inc., 325 N.W.2d 20, 25 (Minn. 1982).
Defendant asserts that this claim is barred by the doctrine of official immunity.
Official immunity is a common law doctrine that provides public officials with a defense
to state law tort claims. Mumm v. Mornson, 708 N.W.2d 475, 490 (Minn. 2006); Johnson
v. Morris, 453 N.W.2d 31, 41-42 (Minn. 1990). “Official immunity prevents a public
official charged by law with duties which call for the exercise of his judgment or
discretion from being held personally liable for damages, unless the official has
5
Defendant contends that he needed only “arguable probable cause” in order to be
entitled to qualified immunity here. The Court finds this case to be distinguishable from
the retaliatory prosecution cases on which Defendant relies. Contra Hartman v. Moore,
547 U.S. 250 (2006) (holding that a plaintiff must plead absence of probable cause for the
underlying charge in a retaliatory prosecution case, in which criminal charges were
actually brought against the plaintiff); Williams v. City of Carl Junction, 480 F.3d 871
(finding that, because the plaintiff failed to show that police officers lacked probable
cause to issue criminal citations, he could not establish a “necessary element of his
(Footnote Continued on Next Page)
11
committed a willful or malicious act.” Mumm, 708 N.W.2d at 490 (internal quotations
omitted). In conducting an official immunity analysis, a court must first determine
whether the conduct at issue involved ministerial or discretionary duties. Id. If the duties
are discretionary, the issue then becomes whether the official acted willfully or
maliciously. Id.
Plaintiff claims that Defendant told her supervisor at the time of her arrest at
Wal-Mart that she had “pending charges” (when in fact she was never charged with a
crime) and thus caused her suspension. (Yzaguirre Dep. at 66-67, 73; Yzaguirre Aff. ¶
5.) Defendant’s decisions to arrest Plaintiff and to tell her supervisor that Plaintiff had
pending charges were clearly discretionary acts. See Kelly v. City of Minneapolis, 598
N.W.2d 657, 665 (Minn. 1999) (“The circumstances surrounding the arrest of a suspect
do not involve the ‘fixed and designated facts’ and ‘absolute, certain and imperative’
duties of a ministerial act. Each situation is unique and requires the exercise of judgment
by the officer based upon the objective circumstances of the moment.”); see also
Reasonover v. St. Louis County, 447 F.3d 569, 585 (8th Cir. 2006) (“The investigation of
a crime is a discretionary act, not a ministerial one.”). Thus, the question becomes
whether Defendant acted willfully or maliciously in arresting Plaintiff and in
communicating to Plaintiff’s employer that she had “pending charges” when in fact she
had not been charged with a crime.
(Footnote Continued From Previous Page)
retaliatory-prosecution claim”).
12
The Court concludes that genuine issues of material fact exist as to whether
Defendant acted willfully or maliciously. Whether Defendant acted willfully or
maliciously in effectuating the arrest and in communicating that Plaintiff had pending
charges to Plaintiff’s employer is a question of fact reserved for the jury and to be
resolved at trial. Consequently, the Court determines that Plaintiff has presented
sufficient evidence to overcome Defendant’s assertion of official immunity and thus to
survive summary judgment on her tortious interference claim.
Because the Court concludes that genuine issues of material fact exist with respect
to both Counts I and II of Plaintiff’s Complaint, Defendant is not entitled to summary
judgment on either of Plaintiff’s claims.
ORDER
Based upon the foregoing, and the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendant’s Motion for Summary Judgment (Doc. No. [11])
is DENIED in its entirety.
Dated: December 21, 2011
s/Donovan W. Frank\
DONOVAN W. FRANK
United States District Judge
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?