Fragola v. Saint Paul, City of et al
Filing
36
MEMORANDUM OPINION AND ORDER granting 31 Plaintiff's Motion to Alter/Amend/Supplement Pleadings; granting 19 Defendants' Motion for Summary Judgment (Written Opinion). Signed by Judge Ann D. Montgomery on 01/05/2012. (TLU)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Jeannine Marie Fragola,
Plaintiff,
v.
MEMORANDUM OPINION
AND ORDER
Civil No. 10-4718 ADM/TNL
City of Saint Paul,
Saint Paul Police Department and
Officer Matthew Shohara,
Defendants.
______________________________________________________________________________
Stephen W. Cooper, Esq., and Stacey R. Everson, Esq., The Cooper Law Firm Chartered,
Minneapolis, MN, on behalf of Plaintiff.
Judith A. Hanson, Esq., Assistant St. Paul City Attorney, St. Paul, MN, on behalf of Defendants.
______________________________________________________________________________
I. INTRODUCTION
On December 15, 2011, the undersigned United States District Judge heard oral argument on
Defendants’ Motion for Summary Judgment [Docket No. 19] (“SJ Motion”). Plaintiff Jeannine Marie
Fragola (“Fragola”) opposes the motion and filed a Motion to Amend Complaint [Docket No. 31].
For the reasons stated below, Defendants’ Motion for Summary Judgment is granted.
II. BACKGROUND1
On July 4, 2010, 61-year-old Fragola was at her alcohol and drug-free multi-housing
residence, St. Christopher’s Place. Mem. in Opp’n to Defs.’ Mot. for Summ. J. [Docket No. 28]
1
On a motion for summary judgment, the Court views the evidence in the light most favorable
to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
(“Opp’n Mem.”) 1–2. She was upset about a broken drinking fountain and had taped a complaint to
the building manager’s door. Opp’n Mem. 2. Roger Sykes (“Sykes”), a staff member at St.
Christopher’s Place, called the police to remove her from the premises. Sykes Aff. [Docket No. 24]
¶¶ 1–2. His reason for doing so is disputed, but Fragola alleges he was irritated that she taped the
complaint on the Housing Coordinator’s door rather than sliding it under the door. Opp’n Mem. 2.
Police Officer Matthew Shohara (“Shohara”) arrived and spoke to Sykes in the common area.
Hanson Aff. [Docket No. 25] Ex. I (“Shohara Dep.”) 57:5-16. Fragola was visibly intoxicated, and
Shohara told her to wait in the vestibule. Id. 57:5-9, 66:22-67:1. Officer Christopher Hetland
(“Hetland”) arrived while Shohara was questioning Sykes, and Hetland smelled alcohol on Fragola.
Hanson Aff. Ex. B. Sykes told Shohara that there had been problems with Fragola in the past, and the
police had been called on a previous occasion. Sykes Aff. ¶ 3. Sykes explained to Shohara that when
he asked Fragola not to place complaints outside the door she began yelling and cursing and making
verbal threats that she would “kick [his] butt.” Id. ¶ 4. Fragola overheard Shohara’s conversation with
Sykes, became aggressive, cursed, and accused Sykes of lying. Shohara Dep. 63:5-64:10. Shohara
then spoke with Fragola, who told him she had been drinking but was not drunk. Fragola Aff. [Docket
No. 29] ¶ 3; Shohara Dep. 152:3-4.
When Shohara informed Fragola he would be taking her to detox, she became aggressive and
resisted. Shohara Dep. 108:22-22, 109:1-9. Shohara then handcuffed her hands behind her back and
took the keys and wallet from her hands for officer safety. Id. ¶¶ 69:9-70:3, 78:2-13. Fragola
resisted, kicking her feet toward Shohara and Hetland as they escorted her to the squad car. Id. ¶¶
75:24-76:3. She then went limp, and Shohara and Hetland had to carry her to the car. Id. ¶ 76:3.
2
Shohara drove Fragola to the Ramsey County Detox Center (“detox center”).
In the sallyport of the detox center, Shohara placed Fragola’s keys and wallet on the stair ledge
before opening the squad card door for her. Id. ¶¶ 90:1-6. Fragola stepped out of the car and asked
to see her keys and wallet, but Shohara instead began escorting her to the elevator by holding her
elbow. Id. ¶¶ 88:20-24, 93:2015. Near the elevator, Fragola worked her handcuffed hands to the
right side of her body and grabbed onto the wall. Id. ¶ 89:7-11. Shohara warned Fragola to let go,
and he tugged on her several times attempting to free her from the wall. Id. ¶¶ 97:15-19, 185:21-23.
On his last pull attempting to free Fragola from the wall, he and Fragola fell away from the wall.
Hanson Aff. Ex. E (“Video: Detox Center Red (7/4/2010)”). Fragola sustained a bloody injury to the
left side of her face. Hanson Aff. Ex. J (“Fragola Dep.”) 64:22– 65:16. Shohara stood up, pushed the
detox center call button, retrieved Fragola’s keys and wallet, and called dispatch for medics. Video:
Detox Center Red (7/4/2010). Shohara then raised Fragola’s head, detox center staff assisted in
treating Fragola, and an Allina ambulance arrived on the scene to take her to Regions Hospital.
Shohara Dep. 108:20-24, 115:4-116:6.
Fragola was uncuffed at the hospital, and her blood-alcohol content was measured at .244
BAC. Hanson Aff. Ex. B. She suffered a broken cheekbone, multiple fractures around her left eye
socket, extreme swelling, and injuries which required surgery. Fragola Dep. 69:24-78:24. Fragola
returned to her apartment at St. Christopher’s Place around 11:30 that evening. Sykes Aff. ¶ 8.
On November 1, 2010, Fragola filed her Complaint, initiating this lawsuit. Notice of Removal
[Docket No. 1] Ex. B (“Complaint”).
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III. DISCUSSION
A.
Standard of Review for Motion to Amend
Fragola seeks to amend her complaint to sue Shohara in his individual capacity on her claim
arising out of 42 U.S.C. § 1983. The general rule is that the determination of granting leave to amend is
soundly within the discretion of the trial court. See e.g., Niagara of Wis. Paper Corp. v. Paper Indus.
Union-Mgmt. Pension Fund, 800 F.2d 742, 749 (8th Cir. 1986). Amendments of complaints “should
be allowed liberally to ensure that a case is decided on its merits, . . . [but] there is no absolute right to
amend.” Ferguson v. Cape Girardeau Cnty., 88 F.3d 647, 650–51 (8th Cir. 1996) (internal citation
omitted). Rule 15 of the Federal Rules of Civil Procedure provides the basis for motions to amend,
stating in pertinent part that “a party may amend its pleadings only with the opposing party’s written
consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ.
P. 15(a)(2). Federal Rule of Civil Procedure 16 governs pretrial scheduling orders, and a court may
require a showing of good cause for leave to amend a complaint outside the requirements of the pretrial
scheduling order. See Freeman v. Busch, 349 F.3d 582, 589 (8th Cir. 2003) (requiring a showing of
good cause for party’s ten-month delay in seeking to add punitive damages), cert. denied, 529 U.S.
1033 (2000). Generally, denial of leave to amend may be justified by “undue delay, bad faith on the
part of the moving party, futility of the amendment or unfair prejudice to the opposing party.” Sanders
v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)).
Because claims under 42 U.S.C. § 1983 (“§ 1983") subject public servants to individual
liability, courts have held that to sue a public official individually the plaintiff must “expressly and
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unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant is sued only in
his or her official capacity.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).
The purpose of requiring such an express statement of being sued in individual capacity is “to give
proper notice to the defendants.” Id.
B.
Motion to Amend is Granted
It is undisputed that Fragola failed to expressly state in either the caption or the § 1983
section that Shohara was being sued in his individual, as well as official, capacity for violations of §
1983. In the briefings and at oral argument, Fragola offered no “good cause” as to why Shohara was
not expressly sued in his individual capacity. Fragola does admit that she did not seek to amend her
Complaint earlier because she was unaware of the potential defect until Defendants filed their
Memorandum in Support of Motion for Summary Judgment on November 3, 2011.
However, because amendments should be liberally granted and because courts are required to
“freely give leave [to amend] when justice so requires,” Fed. R. Civ. P. 15(a)(2), Fragola’s motion to
amend will be granted.
The line of cases Defendants cited supporting a good cause showing and denying leave to
amend are inapposite, dealing not with the inclusion of a necessary party such as Shohara but post-trial
motions to add a new claim, Niagara, 800 F.2d at 749, motions to include punitive damages, Freeman,
349 F.3d at 589, and amendments to cure jurisdictional defects, Sanders, 823 F.2d at 216.
Moreover, the Ferguson justifications for denying leave to amend are absent here. Ferguson, 88 F.3d
at 650–51. Specifically, granting leave to amend Fragola’s Complaint to sue Shohara in his individual
capacity would not result in undue delay, given that he is already a party in his official capacity for the §
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1983 claim and is sued individually for several of the state law claims. Furthermore, no evidence has
shown that Fragola’s failure to expressly sue Shohara in his individual capacity was a result of bad faith.
Suing Shohara has not been argued as being futile, given that the statute of limitations has not yet
expired on this cause of action. Lastly, Shohara would not be unfairly prejudiced by being sued in his
individual capacity under 42 U.S.C. § 1983, since he is on notice and being sued individually for other
claims in this lawsuit. Perhaps most importantly, permitting such an amendment allows adjudication on
the merits and promotes judicial efficiency. Were this motion for leave to amend denied, Fragola could
potentially refile her Complaint, thus restarting the present litigation with Shohara being sued
individually. For all the reasons stated, Fragola’s motion to amend her Complaint is granted.
C.
Standard of Review for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if
“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (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. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
D.
Fragola’s Claims All Warrant Dismissal
Fragola’s Letter Brief [Docket No. 35] Ex. A (“Amended Complaint”) alleges the
following claims against the City of Saint Paul (“St. Paul”), Saint Paul Police Department (“SPPD”),
and Officer Matthew Shohara in his individual and official capacities: (1) assault and battery; (2)
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negligence; (3) negligent supervision, retention and hiring; (4) intentional infliction of emotional distress;
(5) false imprisonment; and (6) § 1983 violations.
1.
42 U.S.C. § 1983
Under 42 U.S.C. § 1983, governmental persons and entities are liable for the deprivation of
rights guaranteed by the Constitution.2 42 U.S.C. § 1983 does not create substantive rights, but rather
provides remedies for deprivations of other constitutional rights. Albright v. Oliver, 510 U.S. 266, 271
(1994). Here, Fragola has alleged § 1983 claims against state entities – St. Paul and the SPPD – as
well as an individual state actor, Officer Shohara. The § 1983 claims against Shohara allege
unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments, as well as
violations of Fragola’s due process rights protected by the Fourteenth Amendment. Am. Compl. ¶
110. The § 1983 claims against St. Paul and the SPPD include the claims against Shohara as well as
unconstitutional or unlawful supervision or training practices which deprived Fragola of her rights. The
claims are analyzed separately as follows.
a.
Shohara Claims
i.
Excessive Force
Analysis of a § 1983 claim begins with “identifying the specific constitutional right allegedly
infringed by the challenged application of force.” Graham v. Connor, 490 U.S. 386, 393–4 (1989).
Claims of excessive force by law enforcement during the course of an arrest or detainment in violation
of the Fourth Amendment are analyzed under the reasonableness standard – “whether the officers’
2
“Every person who, under 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. . . .” 42 U.S.C. § 1983.
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actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Id. at 397. The reasonableness of use of force is
objectively assessed from a reasonable officer’s contemporaneous perspective, not “with the 20/20
vision of hindsight.” Id. at 396. Factors in determining reasonableness include the crime’s severity,
whether the suspect poses an immediate threat to officers or others, and whether the suspect actively
resists or attempts to evade arrest by flight. Id. “[N]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers,” violates the Fourth Amendment, and the analysis
must account for the fact that police officers must make split-second decisions in difficult, fast-moving
situations. Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d. Cir. 1973)). Additionally, courts
may “consider the result of the force” in determining the reasonableness of that force. See Crumley v.
City of St. Paul, 324 F.3d 1003, 1007 (8th Cir. 2003).
In Moore v. Novak, 146 F.3d 531 (8th Cir. 1998), the Court of Appeals for the Eighth Circuit
determined that using a stun gun and “body-slamming” a handcuffed individual to the floor was
objectively reasonable where that individual was “intoxicated, agitated, refused to comply with
commands, kicked the arresting officer, continued to struggle and attempt to get away, and posed an
immediate threat to his own safety and to the safety of the officers.” Id. at 535.
Here, the record similarly reflects that Fragola was intoxicated, agitated, had refused to comply
with Shohara’s commands, and had struggled when handcuffed at St. Christopher’s Place. Although
Fragola and Shohara differ in recounting the acts which occurred at the detox center, the video clearly
shows that Fragola resisted Shohara when they neared the elevator and that she grabbed onto the wall
or something connected to the wall. Video: Detox Center Red (7/4/2010). The video also shows that
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Shohara pulled on her three times in an attempt to extricate her from the wall. Id. On the second
attempt, the video shows that Fragola widened her stance to resist being pulled away from the wall. Id.
Like the circumstances in Novak, Shohara used reasonable force in attempting to release Fragola’s
hold from the wall. While he could have utilized other methods or pulled her in another direction, such
“20/20 hindsight” speculations do not speak to whether his actual use of force was reasonable.
Notwithstanding Fragola’s extensive injuries, the undisputed video evidence shows Shohara’s actions
were objectively reasonable and therefore do not constitute excessive force.
ii.
Qualified Immunity
Even assuming a finding of excessive force, a person sued in his individual capacity may still be
free from liability under the doctrine of qualified immunity. Qualified immunity shields a government
official from civil suits except where the conduct violates a clearly established right of which a
reasonable person would have known. See Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir.
2000). Summary judgment on the basis of qualified immunity is warranted if the defendant could have
reasonably believed his conduct to be lawful “in light of clearly established law and the information [that
the defendant] possessed.” Id. (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)). Qualified
immunity protects mistaken judgments and “all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 343 (1986).
Although Fragola avers that Shohara was incompetent in his handling of an intoxicated,
handcuffed individual, the record which includes the video evidence, even taken in the light most
favorable to Fragola, establishes that Shohara reasonably could have believed his conduct lawful. It is
undisputed that Shohara’s first two attempts to pull Fragola from the wall were reasonable and lawful.
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Therefore, Fragola’s argument is that Shohara’s third tug on Fragola was clearly unlawful and
unreasonable under the circumstances. The Court disagrees. Given that Fragola was and had been
resisting, was not and had not been obeying lawful commands, and was intoxicated and agitated,
Shohara’s escalating use of force in his attempt to extricate her from the wall was not clearly unlawful or
unreasonable under the circumstances. His actions, therefore, are covered by qualified immunity and
summary judgment is granted on the § 1983 claims against him.
b.
City of St. Paul Claims
Fragola’s claims against St. Paul derive from Shohara’s actions in his official capacity.
Specifically, Fragola appears to be asserting a Monell claim that St. Paul’s policy, customs, training or
supervision were the cause of her injuries. See Monell v. New York City Dep’t of Soc. Svcs., 436
U.S. 658 (1978). A suit against an employee in his official capacity is deemed a suit against the
employer only, Johnson, 172 F.2d at 535, “another way of pleading an action against an entity of which
an officer is an agent,” Monell, 436 U.S. at 690. Municipalities cannot be held vicariously liable under
a § 1983 claim; rather, they may only be sued when the “execution of a government’s policy or custom
. . . inflicts the injury.” Monell, 436 U.S. at 694. Policy and custom are not interchangeable terms.
Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999). Policy is limited to the agency’s official
policy, a “deliberate choice of a guiding principle or procedure made by the municipal official who has
final authority regarding such matters. Id. Custom requires three elements be established: (1) the
existence of a continuing, widespread, persistent pattern of unconstitutional conduct by the government
entity’s employees; (2) deliberate indifference to or tacit authorization of such conduct by the
governmental entity’s policymaking officials after notice of that misconduct; and (3) proof that the
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custom was the moving force behind the violation. Ware v. Jackson Cnty., 150 F.3d 873, 880 (8th
Cir. 1998) (citing Jane Doe A v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir. 1990)).
Fragola has failed to sufficiently plead a Monell claim against St. Paul. Fragola has alleged only
that St. Paul conspired to deprive her of her rights, Am. Compl. ¶ 112, that St. Paul had a pattern and
practice of depriving citizens of constitutional rights, id. ¶¶ 107–08, and that St. Paul’s inadequate
training, supervision, discipline, screening, and termination procedures showed a deliberate indifference
to her constitutional rights, id. ¶ 109. Short of these bald assertions of a policy or custom, however,
Fragola has not identified specific facts that, if proven, would establish that St. Paul either had an official
policy for depriving her of her constitutional rights or a custom which caused her injuries. She has not
alleged that St. Paul knew of a widespread, persistent pattern which led to her injuries, nor has she
stated that St. Paul knew of such behavior occurring in the past, such that it could have tacitly
authorized or expressed deliberate indifference to that conduct. Furthermore, outside her allegations
that Shohara was insufficiently trained in procedures for escorting handcuffed individuals, Fragola has
failed to raise a fact issue that any such custom was the “moving force” behind her injuries. Therefore,
summary judgment is granted as to Fragola’s § 1983 claims against St. Paul.
c.
SPPD Claims
Fragola has also alleged that SPPD committed § 1983 violations of her constitutional rights.
The law is clear, however, that unlike cities, municipal entities such as police departments cannot sue or
be sued. See Hyatt v. Anoka Police Dep’t, 700 N.W.2d 502, 505–06 (Minn. App. 2005) (citing
Minn. Stat. §§ 412.111, 412.211, both of which give municipalities the right to sue and be sued); see
also, Ketchum v. City of West Memphis, 974 F.2d 81, 82 (1992) (finding the police department and
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paramedic services “not juridical entities suable as such”). Therefore, summary judgment as to
Fragola’s § 1983 claims, as well as all her other claims against SPPD, is granted.
2.
False Imprisonment
False imprisonment, under Minnesota law, requires proof of three elements: (1) words or
actions intended to confine a person; (2) actual confinement; and (3) awareness by the person that she
is confined. Eilers v. Coy, 582 F.Supp. 1093, 1096 (D. Minn. 1984). A Fourth Amendment claim of
false imprisonment requires an inquiry into whether the officers had probable cause to arrest the
plaintiff. Smithson, 235 F.3d at 1062. Such probable cause exists if, under the totality of facts, a
prudent person would believe the individual arrested had committed an offense at the time of the arrest.
Id. A police officer is entitled to qualified immunity if he arrests an individual under an objectively
reasonable mistaken belief that he had arguable probable cause to do so. Id. (citing Hunter v. Bryant,
502 U.S. 224, 228–29 (1991)).
Minn. Stat. 253B.05, subd. 2(A) allows a peace officer to take a person who is publicly
intoxicated into custody and to a treatment facility, if the person is in danger of causing self-harm or
harm to any person or property. Here, it is undisputed that Fragola was intoxicated and in a public
commons area in St. Christopher’s Place. Although Fragola argues that she should have been taken to
her apartment, peace officers including Shohara have discretion to take a person into custody and
transport them to a treatment facility if they believe that person may harm themselves, others, or
property. Fragola’s statement that she would “kick [Syke’s] butt,” her aggressive demeanor, and her
public intoxication presented sufficient facts for Shohara’s decision to take her into protective custody
and transport her to a treatment facility.
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Moreover, the record reflects that Shohara had arguable probable cause to arrest Fragola.
The fact that he thought of the “arrest” as “protective custody,” or that he did not intend to take her to
prison or to book her, does not diminish the fact that Shohara personally witnessed Fragola engage in
disorderly conduct, which is a misdemeanor.3 See United States v. Watson, 423 U.S. 411, 418
(1976) (holding police officers may arrest without warrant if a misdemeanor occurs in their presence).
In fact, the concept that peace officers can arrest without a warrant when a misdemeanor occurs in their
presence “reflect[s] an ancient common-law rule.” Watson, 423 U.S. at 418 (citing Samuel v. Payne,
(1780) 99 Eng. Rep. 230 (K.B.)). Since Shohara’s arrest of Fragola was not unlawful, she was not
falsely imprisoned. Alternatively, Shohara is covered by qualified immunity because he had arguable
probable cause for arresting her. For the reasons set forth, summary judgment is granted on her claim
of false imprisonment.
3.
Assault and Battery
Battery is the intentional unpermitted offensive contact with another. Paradise v. City of
Minneapolis, 297 N.W.2d 152, 155 (Minn. 1980).4 Minnesota law authorizes police officers to use
reasonable force in effecting a lawful arrest or executing any other lawful duty. Minn. Stat. § 609.06,
3
“Whoever . . . in a public or private place . . . engages in offensive, obscene, abusive,
boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse
alarm, anger, or resentment in others . . . is guilty of disorderly conduct, which is a misdemeanor.”
Minn. Stat. § 609.72, subd. 1(3).
4
Assault is an action intended to and which does in fact create fear of imminent bodily harm.
See U.S. v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996); see also Minn. Stat. § 609.2, subd. 10. Although
Fragola’s Amended Complaint alleges assault, Am. Compl. ¶ 21, it is “apparent that the essence of
plaintiff’s claim is based on battery.” See e.g., Paradise, 297 N.W.2d at 155, n. 3. Because the
damages Fragola alleges are based on actual physical injury and not as a result of fear of physical
harm, and also because Fragola has apparently abandoned the assault claim by failing to include it in her
memorandum opposing summary judgment, the assault claim will not be analyzed here.
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subd. 1(a, d). For the use of force to be unreasonable, the Plaintiff bears the burden of proving that
force was excessive or unreasonable. Paradise, 297 N.W.2d at 155.
As discussed above, Shohara’s actions do not constitute unreasonable or excessive force.
Even viewed in the light most favorable to Fragola, the video and her version of the facts do not
support that Shohara’s actions were excessive or unreasonable. His incremental use of force to control
a resisting individual does not rise to the level of excessive, and no police officer would objectively find
his actions unreasonable or unlawful at the time he committed them.
Moreover, official immunity also bars the assault and battery claims against Shohara. The
doctrine of official immunity shields a public official from personal liability for damages caused by the
exercise of her judgment or discretion in her official duties as long as she is not guilty of a willful or
malicious wrong. Brown v. City of Golden Valley, 534 F.Supp.2d 984, 995 (D. Minn. 2008) (citing
Elwood v. Rice Cnty., 423 N.W.2d 671, 677 (Minn. 1988)). The court applies a two-step analysis to
official immunity determinations. First, the court determines whether the alleged acts were ministerial or
discretionary. Brown, 534 F.Supp.2d at 995–96 (quotation omitted). Second, the court determines
whether the alleged acts were malicious or willful. Id. (quotation omitted). Police officers are covered
by the doctrine of official immunity, because they “are not purely ministerial officers, in that many of
their duties are of an executive character involving the exercise of discretion.” Elwood, 432 N.W.2d at
678.
Here, because Shohara was engaged in discretionary action as a police officer, the sole
remaining question for official immunity is whether his treatment of Fragola was malicious or willful. The
video and other evidence, taken in the light most favorable to Fragola, does not show malicious or
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willful conduct by Shohara. Although Shohara may have had other options for dealing with a resisting,
intoxicated individual, his choice to pull her away from the wall with progressively increasing force does
not evidence malice or willfulness sufficient to deny him the protections of official immunity. Therefore,
summary judgment on Fragola’s assault and battery claim is granted.
4.
Negligence
Negligence requires the existence of a duty of care, a breach of that duty, an injury, and
proof that the breach of the duty of care was a proximate cause of the injury. See Domagala v.
Rolland, 805 N.W.2d 14, 22 (Minn. 2011). Whether a legal duty exists is a question of law for the
court to decide. State v. Back, 775 N.W.2d 866, 869 (Minn. 2009). A general duty to the entire
public, rather than a specific class of persons, does not support a negligence action. Kelly v. City of St.
Paul, Civ. No. 09-461, 2010 WL 4272460, *11 (D. Minn. Oct. 18, 2010) (internal citation omitted).
To recover against a municipality for a negligence claim, a plaintiff must establish the breach of a duty
owed him in his individual capacity, not just “some obligation owed to the general public.” Id. (quoting
Hoffert v. Owatonna Inn Towne Motel, Inc., 199 N.W.2d 158, 160 (Minn. 1972)). For respondeat
superior to apply, the state actor must be found personally liable for the tort and must have been acting
within the scope of his employment. Leaon v. Washington Cnty., 397 N.W.2d 867, 874 (Minn. 1986).
Fragola has alleged but has not specified the duty of care owed her by Shohara, nor has she
presented facts to show he breached any duty. Moreover, as he is not personally liable for torts under
the qualified immunity doctrine, St. Paul cannot be liable under a respondeat superior theory.
Therefore, summary judgment is granted on Fragola’s claim for negligence.
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5.
Negligent Supervision, Retention and Hiring
Under Minnesota law, cities are immune from liability for “[a]ny claim based upon the
performance or the failure to exercise or perform a discretionary function or duty, whether or not the
discretion is abused.” Minn. Stat. § 466.03, subd. 6. Whether statutory immunity applies is a question
of law. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989). In determining whether a
function is discretionary and thus receives statutory immunity, the distinction is between acts involving
policymaking, which are immune, and acts which “simply effectuate a decision or policy.” Janklow v.
Minn. Bd. of Examiners for Nursing, 552 N.W.2d 711, 716 (Minn. 1996). Minnesota courts have
found that supervisory, retention, and hiring decisions are entitled to statutory immunity. See Oslin v.
State, 543 N.W.2d 408, 415–16 (Minn. Ct. App. 1996), rev. denied (April 1, 1996).
Because its supervision, retention, and hiring practices are subject to statutory immunity, St.
Paul is not liable under Fragola’s claims of negligent supervision, retention, and hiring. As a result,
summary judgment is granted on this claim.
6.
Intentional Infliction of Emotional Distress
In Minnesota, intentional infliction of emotional distress requires proof of the following
four elements: (1) the conduct was extreme and outrageous; (2) the conduct was intentional or reckless;
(3) the conduct caused emotional distress; and (4) that distress was severe. Kelly, 598 N.W.2d at
663. The severity of the emotional distress must be “so severe that no reasonable [person] could be
expected to endure it.” Hubbard v. United Press Int’l Inc., 330 N.W.2d 428, 439 (Minn. 1983)
(quoting Restatement (Second) of Torts § 46 cmt. j (1965)). “The appropriate method of proving the
severity and causation of emotional distress is through medical testimony.” Langeslag v. KYMN Inc.,
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664 N.W.2d 860, 869–70 (Minn. 2003). Summary judgment is warranted when a plaintiff fails to
“meet the high standard of proof needed for an intentional infliction of emotional distress claim.”
Strauss v. Thorne, 490 N.W.2d 908, 913 (Minn. Ct. App. 1992).
Here, Fragola has abandoned her intentional infliction of emotional distress by failing to argue it
at summary judgment stage. Moreover, Fragola has failed to provide evidence to show that Shohara’s
actions were extreme or outrageous, that his actions were the cause of emotional distress, that she
experienced any emotional distress, or that her alleged emotional distress was severe. As a result,
Fragola has failed to meet the high threshold standard of proof required for a claim of intentional
infliction of emotional distress, and summary judgment is granted on this claim also.
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY
ORDERED:
1. Plaintiff’s Motion to Amend Complaint [Docket No. 31] is GRANTED;
2. Defendants’ Motion for Summary Judgment [Docket No. 19] is GRANTED; and
3. All claims are DISMISSED WITH PREJUDICE.
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LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: January 5, 2012.
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