Scheffler v. Molin et al

Filing 89

ORDER: Crystal and Molins motion for summary judgment 34 is GRANTED. Schefflers motion for partial summary judgment 42 is DENIED. This action is DISMISSED WITH PREJUDICE. (Written Opinion) Signed by Judge Joan N. Ericksen on December 10, 2012. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Troy K. Scheffler,
Plaintiff,
v.

Civil No. 11-3279 (JNE/JJK)
ORDER

Jack Molin and City of Crystal,
Defendants.

Peter J. Nickitas, Peter J. Nickitas Law Office, LLC, appeared for Plaintiff Troy K. Scheffler.
Jana O’Leary Sullivan, League of Minnesota Cities, appeared for Defendants Jack Molin and
City of Crystal.

Troy Scheffler brought this action against the City of Crystal and one of Crystal’s
building inspectors, Jack Molin. Scheffler asserted claims under 42 U.S.C. § 1983 (2006) for
violations of his rights under the First and Fourteenth Amendments to the United States
Constitution. He also asserted claims under state law for defamation. The case is before the
Court on Crystal and Molin’s motion for summary judgment, as well as Scheffler’s motion for
partial summary judgment. For the reasons set forth below, the Court grants Crystal and Molin’s
motion, denies Scheffler’s motion, and dismisses this case.
I. BACKGROUND
Scheffler’s claims arise out of an incident that took place on October 3, 2008. That day,
Scheffler went to Crystal City Hall to ask about a stop work order that a building inspector had
issued. A friend of Scheffler owned the property that was the subject of the stop work order. At
the front desk, Scheffler spoke to an employee who was unable to address his concerns. The
employee called for an inspector. Molin approached the front desk, the employee asked about

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the property, and Molin started to yell at Scheffler. Molin spoke angrily, accused Scheffler of
living at the property unlawfully, and accused Scheffler of being a criminal. Scheffler tried to
explain that he was not the owner of the property, that he was a friend of the owner, and that he
otherwise had nothing to do with the property. Scheffler urged Molin to calm down and stop
yelling. Molin eventually walked into the lobby; stated, “Come with me, I have something to
show you”; and escorted Scheffler out the front door.
After approximately 30 seconds, Scheffler returned to the front desk and asked the
employee about filing a complaint against a city employee. The employee searched her desk.
Seeing that Scheffler had returned, Molin approached the front desk and asked, “Why are you
back?” Scheffler responded that he was there to file a complaint against Molin. Molin yelled at
the employee to call the police. The employee eventually called the police. Scheffler told the
employee that he simply wanted a form to file a complaint and would leave. The employee gave
the business card of Molin’s supervisor to Scheffler and indicated that the supervisor would be
able to assist Scheffler with the complaint.
Scheffler left, walked next door to a police station, and informed a police employee that
the police might be looking for him. Scheffler explained what had happened to a police sergeant.
The sergeant asked Scheffler to wait for him to return. After approximately 15 minutes, the
sergeant returned, handed the business card of Molin’s supervisor to Scheffler, and stated that the
supervisor had expressed interest in Scheffler filing a complaint. According to the sergeant,
employees at the front desk stated that Scheffler had done nothing wrong and that Molin was
“completely out of line.” Scheffler left the police station.
A short time after he left the police station, Scheffler called the city clerk and told her
about the incident with Molin. A few days later, Scheffler sent a notice of claim to Crystal in

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which he expressed his intent to sue the city and recounted the incident with Molin. After
investigating the incident, Crystal disciplined Molin.
In November 2011, Scheffler brought this action. He claimed that Molin had defamed
him by calling him a criminal and that Crystal was liable for the defamation on the basis of
respondeat superior. Scheffler also claimed that Molin had violated his rights under the First and
Fourteenth Amendments. Crystal and Molin now move for summary judgment. Scheffler
moves for summary judgment on the issue of Molin’s liability for the alleged constitutional
violations.
II. DISCUSSION
Summary judgment is proper “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). To support an assertion that a fact cannot be or is genuinely disputed, a party must cite “to
particular parts of materials in the record,” show “that the materials cited do not establish the
absence or presence of a genuine dispute,” or show “that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). “The court need
consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ.
P. 56(c)(3). In determining whether summary judgment is appropriate, a court must look at the
record and any inferences to be drawn from it in the light most favorable to the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A.

Defamation
Scheffler based his defamation claims against Crystal and Molin on Molin’s statement

that Scheffler is a criminal. According to Crystal and Molin, Scheffler, who commenced this
action in November 2011, did not bring his defamation claims within the time allowed by the

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two-year statute of limitations. See Minn. Stat. § 541.07(1) (2010); Semler v. Klang, 743
N.W.2d 273, 280 (Minn. Ct. App. 2007). At the motion hearing, Scheffler agreed to dismiss his
defamation claims. Because Scheffler did not timely assert his defamation claims, the Court
dismisses them.
B.

Section 1983
Scheffler’s claims under § 1983 against Molin are based on Scheffler’s second encounter

with Molin on October 3, 2008. 1 According to Scheffler, Molin violated Scheffler’s rights under
the First and Fourteenth Amendments by yelling at the employee to call the police after Scheffler
stated he had returned to the front desk to file a complaint against Molin. Scheffler claimed his
rights under the speech clause and the petition clause were violated.
The First Amendment is made applicable to the states by the Fourteenth Amendment.
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 336 n.1 (1995). “[T]he petition clause
provides no lesser or greater guarantee of free expression than the speech clause.” Hoffman v.
Mayor of Liberty, 905 F.2d 229, 233 (8th Cir. 1990). To establish a First Amendment retaliation
claim under § 1983, a plaintiff demonstrate (1) that he engaged in a protected activity, (2) that
the defendant took adverse action against him that would chill a person of ordinary firmness
from continuing in the activity, and (3) that the adverse action was motivated at least in part by
the exercise of the protected activity. Naucke v. City of Park Hills, 284 F.3d 923, 927-28 (8th
Cir. 2002).

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At the motion hearing, Scheffler stated that his sole claim against Crystal was one for
defamation. He did not assert a claim under § 1983 against Crystal.
In his reply memorandum, Scheffler asserted that he sued “Molin for the second
encounter, and the second encounter alone.”
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According to Molin, Scheffler has no evidence that demonstrates Molin took an adverse
action against Scheffler that would chill a person of ordinary firmness from continuing in
protected activity. In his written submissions to the Court, Scheffler maintained that Molin had
threatened Scheffler with arrest. At the motion hearing, Scheffler acknowledged that Molin had
directed the employee to call the police.
None of the cases cited by the parties analyzed First Amendment retaliation claims that
presented facts similar to those at issue in this case. Scheffler relied heavily on cases that
involved retaliation or threats of retaliation against inmates who had filed prison grievances, see
Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994); Sprouse v. Babcock, 870 F.2d 450, 452 (8th
Cir. 1989); an individual who claimed he was arrested for spreading a religious message in a
manner that officers found bizarre or for challenging the officers’ right to demand identification,
see Gainor v. Rogers, 973 F.2d 1379, 1388 (8th Cir. 1992); and retaliatory issuance of parking
tickets to an individual who complained about the lack of enforcement of an ordinance
prohibiting bicycle riding on sidewalks, see Garcia v. City of Trenton, 348 F.3d 726, 727-29 (8th
Cir. 2003).
In a case not cited by the parties, the Third Circuit considered a retaliation claim based on
facts somewhat similar to those presented in this case. See Xenos v. Corvino, 473 F. App’x 169
(3d Cir. 2012) (per curiam). In Xenos, the plaintiff filed a complaint against a postal employee.
Id. at 170. After service of the complaint, the employee discriminated against the plaintiff by
denying him service, threatening him, and screaming at him when he went to the post office. Id.
The plaintiff contacted the employee’s supervisor, who suggested that the plaintiff might want to
go to a different post office. Id. A few days later, the plaintiff returned to the same post office,

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and the employee threatened and screamed that he was going to call the police. 2 Id. The
plaintiff contacted the supervisor, who advised the plaintiff not to return to that post office. Id.
Assuming that the plaintiff was attempting to assert that the postal employee and other postal
officials retaliated against him for filing a lawsuit against the employee, the Third Circuit
concluded that the employee’s “actions were not so egregious as to deter an ordinary person
from exercising his First Amendment rights.” Id. at 172.
“‘[C]riticism of public officials lies at the very core of speech protected by the First
Amendment.’ Retaliation by a government actor in response to such an exercise of First
Amendment rights forms a basis for § 1983 liability.” Naucke, 284 F.3d at 927 (alteration in
original) (citation omitted). “In some cases, embarrassment, humiliation and emotional distress
may be sufficient to support a § 1983 claim. But, it would trivialize the First Amendment to
hold that harassment for exercising the right of free speech was always actionable no matter how
unlikely to deter a person of ordinary firmness from that exercise.” Id. at 928 (internal quotation
marks omitted).
In this case, Scheffler returned to the front desk to file a complaint against Molin. Molin
yelled at the employee who was assisting Scheffler to call the police. Scheffler told the
employee that he simply wanted a form to file a complaint and would leave. He walked to the
police station, talked to a sergeant, and waited a few minutes for the sergeant to return. Later
that day, Scheffler told the city clerk about the incident. A few days later, he sent a notice of
claim to Crystal. Viewing the record in the light most favorable to Scheffler, the Court

2

Although the parties had not cited Xenos, Scheffler was familiar with the case. At the
motion hearing, he distinguished it on the ground that it was a case “just about rudeness.” In
Xenos, the plaintiff alleged that the postal employee “began to act threatening and scream[ed]
that he was going to call the police” when the plaintiff returned to the post office. 473 F. App’x
at 170.
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concludes that Molin’s yelled directive to call the police would not chill a person of ordinary
firmness from continuing to engage in protected activity. Cf. Williams v. City of Carl Junction,
480 F.3d 871, 878 (8th Cir. 2007) (“And even if Williams could show that the officer issued this
citation in retaliation for Williams’s protected speech, Williams has not established that receipt
of this citation would ‘chill a person of ordinary firmness’ from continuing to exercise his First
Amendment rights to criticize the City.”); Garcia, 348 F.3d at 729 (“The test is an objective one,
not subjective. The question is not whether the plaintiff herself was deterred, though how
plaintiff acted might be evidence of what a reasonable person would have done.”). The Court
dismisses Scheffler’s claims under § 1983.
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1.

Crystal and Molin’s motion for summary judgment [Docket No. 34] is
GRANTED.

2.

Scheffler’s motion for partial summary judgment [Docket No. 42] is DENIED.

3.

This action is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: December 10, 2012
s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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