Greene v. Gassman et al

Filing 80

ORDER - Based on the foregoing, and on all of the files, records, and proceedings herein, the Court OVERRULES Greene's objections 53 and 73 and ADOPTS Judge Leung's Reports and Recommendations 49 and 70 to the extent that they are c onsistent with this order. Accordingly, IT IS HEREBY ORDERED THAT: The Judge Defendants' motion to dismiss 4 is GRANTED. The Prosecutor Defendants' motion to dismiss 9 is GRANTED. Officer Boucher's motion to dismiss 28 is GRANTED. The Meeker County Defendants' motion for summary judgment 55 is GRANTED. Plaintiff Greene's motions for leave to amend his complaint 66 and 69 are DENIED. Plaintiff Greene's complaint 1 is DISMISSED WITH PREJUDICE AND ON THE MERITS. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Patrick J. Schiltz on 03/06/12. (bjs)cc: Kyle Green Modified on 3/6/2012 (jam).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
KYLE GREENE,

Case No. 11-CV-0618 (PJS/TNL)
Plaintiff,

v.
CANDEE S. GASSMAN; ELIZABETH W.
CUMMINS; ERIC S. OELRICH; KRISTI
STANISLAWSKI; JUDGE STEVEN E.
DRANGE; JUDGE VICKIE E.
LANDWEHR; ERIC BOUCHER; MEEKER
COUNTY, MINNESOTA; and STEARNS
COUNTY, MINNESOTA,

ORDER

Defendants.

Kyle Greene, pro se.
Roger L. Rowlette and Jason M. Hill, JOHNSON & LINDBERG, PA, for defendants
Candee S. Gassman, Elizabeth W. Cummins, Meeker County, and Stearns County.
Erin D. Doran and Laura J. Hanson, MEAGER & GEER, PLLP, for defendants Eric S.
Oelrich and Kristi Stanislawski.
John S. Garry, MINNESOTA ATTORNEY GENERAL’S OFFICE, for defendants Judge
Steven E. Drange and Judge Vickie E. Landwehr.
Ryan M. Zipf, LEAGUE OF MINNESOTA CITIES, for defendant Eric Boucher.
This case arises out of child-support proceedings against plaintiff Kyle Greene in Meeker
County, Minnesota, and a misdemeanor criminal prosecution against Greene in Stearns County,
Minnesota. Greene, who is African-American, alleges that each of the defendants in this case
discriminated against him on account of his race and denied him due process. Specifically,
Greene brings civil-rights claims under 42 U.S.C. §§ 1981 and 1985, and due-process and equal-1-

protection claims under 42 U.S.C. § 1983. Magistrate Judge Tony N. Leung issued two Reports
and Recommendations (“R&Rs”) addressing the following dispositive and nondispositive
motions:
1.

the Judge Defendants’ motion to dismiss [Docket No. 4];1

2.

the Prosecutor Defendants’ motion to dismiss [Docket No. 9];2

3.

Officer Eric Boucher’s motion to dismiss [Docket No. 28];3

4.

the Meeker County Defendants’ motion for summary judgment [Docket No. 55];4
and

5.

Greene’s motions for leave to amend his complaint [Docket Nos. 66 and 69].

In the R&R that he issued on July 25, 2011, Judge Leung recommended granting the
motions to dismiss brought by the Judge Defendants, the Prosecutor Defendants, and Officer
Boucher. See Docket No. 49. In the R&R that he issued on January 18, 2012, Judge Leung
recommended granting the Meeker County Defendants’ motion for summary judgment and
denying Greene’s motions for leave to file an amended complaint. See Docket No. 70.
This matter is before the Court on Greene’s objections to the R&Rs. See Docket Nos. 53
and 73. The Court has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.

1

The Judge Defendants are Judge Steven E. Grange of the Minnesota Eighth Judicial
District, and Judge Vickie E. Landwehr of the Minnesota Seventh Judicial District.
2

The Prosecutor Defendants are Eric S. Oelrich and Kristi Stanislawski, both of whom are
prosecutors for the City of Cold Spring, Minnesota.
3

Officer Boucher is a member of the Cold Spring Police Department.

4

The Meeker County Defendants include Meeker County, Stearns County, Candee S.
Gassman (a child-support worker employed by Meeker County), and Elizabeth W. Cummins (an
Assistant Meeker County Attorney).
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P. 72(b). Based on that review, the Court agrees with Judge Leung’s recommended dispositions
and almost all of his analysis. Accordingly, the Court overrules Greene’s objections and adopts
the R&Rs to the extent that they are consistent with this order.5 Only two matters merit
comment: (1) Greene’s objection that he has not had the opportunity to conduct discovery against
the Meeker County Defendants, and (2) Greene’s attempt to add personal-capacity claims against
the individual defendants. The Court considers each in turn.
A. Lack of Discovery
Greene’s primary objection to the January 18, 2012 R&R is that summary judgment in
favor of the Meeker County Defendants is premature because he has not had the opportunity to
conduct discovery. See Pl. Obj. to Jan. 18, 2012 R&R at 2, 4-5. This objection is without merit
for two reasons.
First, before being entitled to take discovery, a plaintiff must file a complaint that
contains “a short and plain statement of the claim showing that the pleader is entitled to relief .
. . .” Fed. R. Civ. P. 8(a)(2). Although the complaint’s factual allegations need not be detailed,
they must be sufficient to “raise a right to relief above the speculative level” and to “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
Greene has not filed an adequate complaint, and thus he is not entitled to take discovery.
In his complaint, Greene has not alleged that his injuries were caused by the execution of
a government policy or custom, as would be required to state constitutional claims against
Meeker and Stearns Counties — including official-capacity claims against Gassman and

5

The Court adopts Judge Leung’s July 25, 2011 R&R insofar as it is modified by footnote
three of Judge Leung’s January 18, 2012 R&R.
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Cummins. See Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (“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.’”) (quoting Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978)). And with respect to his statutory claims, Greene has not alleged that
any defendant interfered with his ability to make or enforce contracts on account of his race in
violation of § 1981, or that any defendant conspired with others to deprive him of his civil rights
in violation of § 1985.
Although the Meeker County Defendants label their motion as one for summary judgment
and cite only Rule 56, their memorandum of law argues repeatedly that Greene’s complaint fails
to adequately plead a claim for relief. See, e.g., Meeker County Mem. in Support of S.J. at 12
[Docket No. 57] (“Greene makes no claim that a policy or custom on the part of Meeker County
was the ‘moving force’ behind any alleged constitutional violations.”); id. at 18 (“Greene’s
Complaint fails to allege facts sufficient to demonstrate a claim under either [§§ 1981 or 1985],
and therefore, those claims are also subject to dismissal.”). Thus, the memorandum of the
Meeker County Defendants put Greene on notice that they were challenging his complaint as
failing to adequately plead any claim against them. Cf. Murr Plumbing, Inc. v. Scherer Bros.
Fin. Servs. Co., 48 F.3d 1066, 1071 (8th Cir. 1995) (finding that the plaintiff had ample notice of
the defendant’s argument on summary judgment that the fraud claims were inadequately pleaded,
even though it was not specifically labeled as an argument under Rule 9(b)). In response, Greene
has filed two motions for leave to amend his complaint, but Greene’s proposed amendments do
not fix these pleading defects. Under the circumstances, it is not unfair to dismiss Greene’s
complaint based on his inability to plead a plausible claim for relief. Cf. Murr Plumbing, 48 F.3d
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at 1070-71 (holding that the district court properly granted the defendant’s summary-judgment
motion because the complaint failed to allege fraud with particularity as required by Rule 9(b)).
Second, even if Greene’s complaint was not subject to dismissal for failure to state a
claim, the Court would still accept Judge Leung’s recommendation that summary judgment be
granted to the Meeker County Defendants, despite the fact that Greene has not yet had the
opportunity to take discovery. Summary judgment is appropriate “if the movant shows that 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). The Federal Rules expressly provide that a party may move for
summary judgment at any time. See Fed. R. Civ. P. 56(b). If the non-movant believes that
summary judgment is premature, Rule 56(d) authorizes the non-movant to seek a continuance by
filing an affidavit or declaration explaining the reasons why he “cannot present facts essential to
justify [his] opposition . . . .” The Eighth Circuit has emphasized, however, that “[w]hen seeking
such a continuance, the party opposing summary judgment must file an affidavit with the trial
court to show what specific facts further discovery might unveil.” Dulany v. Carnahan, 132 F.3d
1234, 1238 (8th Cir. 1997) (emphasis added).
In other words, it is not enough for a non-movant to complain generally about the lack of
discovery. Every non-movant can express the hope that, if he were allowed to take discovery, he
might find some evidence that might help his case in some way. Rather, the non-movant who
seeks to delay a ruling on a summary-judgment motion must, at a minimum, “affirmatively
demonstrat[e] why he cannot respond to a movant’s affidavits . . . and how postponement of a
ruling on the motion will enable him, by discovery or other means, to rebut the movant’s
showing of the absence of a genuine issue of fact.” Willmar Poultry Co. v. Morton-Norwich
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Prods. Inc., 520 F.2d 289, 297 (8th Cir. 1975); see also Alexander v. Pathfinder, Inc., 189 F.3d
735, 744 (8th Cir. 1999) (explaining that the party opposing summary judgment must
“demonstrate how discovery will provide rebuttal to the movant’s claims”).
Here, Greene did not ask for a continuance to seek discovery nor submit a declaration or
an affidavit to Judge Leung in support of such a request. In fact, Greene did not submit any
written response to the Meeker County Defendants’ motion for summary judgment. Given that
Greene is proceeding pro se, his failure to formally comply with Rule 56(d) is excusable. But, to
this day (nearly six months after the Meeker County Defendants moved for summary judgment),
Greene still has not identified the specific facts that he seeks to uncover during discovery and
how those facts might preclude summary judgment in favor of the Meeker County Defendants.
In his objection to the R&R, Greene complains generally that the “lack of discovery
prevents [him] from proving an unconstitutional act by a municipal employee . . . .” Pl. Obj. to
Jan. 18, 2012 R&R at 5. But the fact that Greene has not had the opportunity to take discovery
does not, in and of itself, preclude granting summary judgment to the Meeker County
Defendants. See Willmar Poultry, 520 F.2d at 298 (“There may be cases where summary
judgment is eminently appropriate even prior to discovery.”). Nor does it excuse Greene from
having to explain why the lack of formal discovery prevented him from effectively opposing the
summary-judgment motion.
Greene has not identified any relevant evidence that is in the Meeker County Defendants’
control and that he could not obtain without formal discovery. Greene also has not disputed
either the authenticity or the accuracy of the documentary evidence that the Meeker County
Defendants submitted in support of their motion for summary judgment. See Pl. Obj. to Jan. 18,
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2012 R&R at 4. For example, Greene alleges in his complaint that his driver’s license was
suspended without notice. Compl. at ¶ 27 [Docket No. 1]. The Meeker County Defendants
countered this allegation by submitting evidence that Greene was in fact sent a notice informing
him of his right to seek a hearing to contest the suspension. See Rowlette Aff. Ex. D [Docket
No. 59]. Greene neither disputes the authenticity of the notice nor denies having received the
notice before his license was suspended.
In sum, because Greene does not dispute the accuracy or authenticity of the evidence
submitted by the Meeker County Defendants in support of their summary-judgment motion —
and because Greene still has not identified what specific evidence he needs (but is unable to
obtain without formal discovery) to properly defend against that motion — the Court concludes
that summary judgment is not premature.6
Turning briefly to the merits of the summary-judgment motion, the Court agrees with
Judge Leung that Greene’s constitutional claims against Meeker and Stearns Counties fail
because he has not pointed to any evidence that his alleged injuries were caused by a government
policy or custom. See Jan. 18, 2012 R&R at 11-12. Similarly, Greene has not pointed to any
evidence that any defendant interfered with his ability to make or enforce contracts, or that any
defendant conspired to deprive him of his civil rights. Accordingly, the Court accepts Judge
Leung’s recommendation that Greene’s claims against the Meeker County Defendants be
dismissed.
6

Greene’s objection fails for the additional reason that he did not raise this issue before
Judge Leung. See Hammann v. 1-800 Ideas.com, Inc., 455 F. Supp. 2d 942, 947-48 (D. Minn.
2006) (“A party cannot, in his objections to an R&R, raise arguments that were not clearly
presented to the magistrate judge.”) (citing Madol v. Dan Nelson Auto. Grp., 372 F.3d 997, 1000
(8th Cir. 2004)).
-7-

B. Personal-Capacity Claims
Greene did not make clear in his complaint whether he was suing the individual
defendants in their official capacities, in their personal capacities, or in both their official and
personal capacities. Therefore, Judge Leung properly construed Greene’s complaint as bringing
only official-capacity claims. See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th
Cir. 1999).
Greene now seeks to amend his complaint so that he may add claims against the
individual defendants in their personal capacities. Judge Leung recommends that Greene’s
motions to amend be denied on the grounds of bad faith and futility. See Jan. 18, 2012 R&R at
2-3. The Court agrees with Judge Leung that Greene’s personal-capacity claims fail as a matter
of law and therefore amendment would be futile.7
As Judge Leung explains, Greene’s proposed personal-capacity claims against the Judge
Defendants are barred by absolute judicial immunity, see July 25, 2011 R&R at 7 (citing
Glasspoole v. Albertson, 491 F.2d 1090, 1091 (8th Cir. 1974)), while his proposed personalcapacity claims against the Prosecutor Defendants are barred by prosecutorial immunity and by
the Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477, 487 (1994), see July 25, 2011
R&R at 8-9 (citing Imbler v. Pachtman, 424 U.S. 409, 427 (1976) and Entzi v. Redmann, 485
F.3d 998, 1003 (8th Cir. 2007)). The Court also agrees with Judge Leung that Greene has failed
to plead any facts plausibly suggesting that Officer Boucher, in either his personal or official

7

The Court does not believe that Greene filed his motions in bad faith or to delay
litigation and thus does not deny Greene’s motions on these grounds.
-8-

capacity, violated Greene’s federal statutory or constitutional rights. See July 25, 2011 R&R at
10-11.
Judge Leung finds Greene’s proposed personal-capacity claims against Gassman and
Cummins to be futile because qualified immunity protects them from liability. See Jan. 18, 2012
R&R at 15 (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The Court agrees. Greene’s
conclusory allegations against Gassman and Cummins are devoid of any specific facts giving rise
to a plausible inference that either of them violated his constitutional or statutory rights.
With respect to equal protection, Greene alleges that, as a result of the actions taken by
Gassman and Cummins in connection with his child-support obligations, his take-home pay is
less than that of white males who have child-support obligations. See Compl. at ¶ 23; Proposed
Am. Compl. at ¶ 24 [Docket No. 69-1]. This claim fails because Greene has not alleged that he
is similarly situated in every material respect to the white males with whom he is comparing
himself. See Schmidt v. Des Moines Pub. Schs., 655 F.3d 811, 820 (8th Cir. 2011) (“To establish
a violation [of the Equal Protection Clause], a plaintiff must show that she was treated differently
than other persons who were in all relevant respects similarly situated.”) (internal quotations
omitted). Greene also fails to allege what precisely Gassman or Cummins did that resulted in
him taking home less money. Greene alleges that Gassman and Cummins commenced legal
proceedings. See Compl. at ¶¶ 12, 45; Proposed Am. Compl. at ¶¶ 13, 46. But Greene does not
dispute that it is a child-support magistrate — and not Gassman or Cummins — who determines
the amount of child support that he owes. For these reasons, Greene has not adequately pleaded
an equal-protection claim against either Gassman or Cummins.

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Greene has also failed to adequately plead either a substantive- or procedural-due-process
claim against Gassman or Cummins. To adequately plead a substantive-due-process claim, a
plaintiff must allege “actions by a government official which ‘violated one or more fundamental
constitutional rights’ and were ‘shocking to the contemporary conscience.’” C.N. v. Willmar Pub.
Schs., Indep. Sch. Dist. No. 347, 591 F.3d 624, 634 (8th Cir. 2010) (quoting Flowers v. City of
Minneapolis, 478 F.3d 869, 873 (8th Cir. 2007)). Here, Greene has failed to allege that either
Gassman or Cummins, while intervening on behalf of Meeker County in child-support
proceedings, acted in a way that would shock the conscience of contemporary society. With
respect to procedural due process, Greene’s only process-based allegation appears to be that
“[o]n August 28, 2007, [his] driver’s license was suspended without a hearing or allowing [him]
to waive his right to a hearing.” See Compl. at ¶ 27; Proposed Am. Compl. at ¶ 28.8 Assuming
that Greene has a property interest in his driver’s license, Greene has not alleged that either
Gassman or Cummins had the authority to suspend his license.
Finally, Greene has failed to allege any facts that may support a plausible inference that
either Gassman or Cummins interfered with his ability to make or enforce contracts on account
of his race in violation of § 1981, or that either Gassman or Cummins were involved in a
conspiracy to deprive him of his civil rights in violation of § 1985.9

8

Greene also alleges that Judge Drange ordered an increase in his monthly child-support
obligation without a hearing. See Compl. at ¶ 61; Proposed Am. Compl. at ¶ 62. But even if that
were true, absolute judicial immunity would nonetheless prevent Greene from recovering
damages from Judge Drange. See Glasspoole v. Albertson, 491 F.2d 1090, 1091 (8th Cir. 1974).
9

The Court notes that Greene alleges throughout his complaint that Gassman and
Cummins violated Minnesota’s child-support laws by garnishing more of his paychecks than the
law permits and by improperly calculating the amount of child support that he owes. See Compl.
(continued...)
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For these reasons, the Court concludes that Greene’s proposed amendment to bring
personal-capacity claims against each of the individual defendants would be futile, and therefore
the Court accepts Judge Leung’s recommendation that Greene’s motions for leave to amend his
complaint be denied.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, the Court
OVERRULES Greene’s objections [Docket Nos. 53 and 73] and ADOPTS Judge Leung’s
Reports and Recommendations [Docket Nos. 49 and 70] to the extent that they are consistent
with this order. Accordingly, IT IS HEREBY ORDERED THAT:
1.

The Judge Defendants’ motion to dismiss [Docket No. 4] is GRANTED.

2.

The Prosecutor Defendants’ motion to dismiss [Docket No. 9] is GRANTED.

3.

Officer Boucher’s motion to dismiss [Docket No. 28] is GRANTED.

4.

The Meeker County Defendants’ motion for summary judgment [Docket No. 55]
is GRANTED.

5.

Plaintiff Greene’s motions for leave to amend his complaint [Docket Nos. 66 and
69] are DENIED.

9

(...continued)
at ¶¶ 22, 26; Proposed Am. Compl. at ¶¶ 23, 27. But even if Gassman and Cummins did violate
state law, that fact alone would not give rise to a federal claim. See Bagley v. Rogerson, 5 F.3d
325, 328 (8th Cir. 1993) (observing that “a violation of state law, without more, does not state a
claim under the federal Constitution or 42 U.S.C. § 1983”).
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6.

Plaintiff Greene’s complaint [Docket No. 1] is DISMISSED WITH PREJUDICE
AND ON THE MERITS.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 6 , 2012

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

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