Wroblewski v. McKenna et al
Filing
22
MEMORANDUM OPINION AND ORDER granting 10 Defendants' Motion for Summary Judgment (Written Opinion). Signed by Judge Ann D. Montgomery on 12/05/2013. (TLU)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Pawel Wroblewski,
Plaintiff,
MEMORANDUM OPINION
AND ORDER
Civil No. 12-910 ADM/FLN
v.
Daryl R. McKenna,
Timothy J. Mattsson, and
City of Minneapolis,
Defendants.
Steven E. Uhr, Esq., Edina, MN, on behalf of Plaintiff.
Timothy S. Skarda, Esq., and Sarah C. S. McLaren, Esq., Minneapolis City Attorney’s Office,
Minneapolis, MN, on behalf of Defendants.
I. INTRODUCTION
On September 5, 2013, the undersigned United States District Judge heard oral argument
on Defendants City of Minneapolis, Officer Daryl R. McKenna (“McKenna”), and Sergeant
Timothy J. Mattsson’s (“Mattsson”) Motion for Summary Judgment [Docket No. 10]. Plaintiff
Pawel Wroblewski (“Wroblewski”) opposes the motion. For the reasons stated below,
Defendants’ motion is granted.
II. BACKGROUND1
At approximately 7:30 p.m. on the evening of December 6, 2011, a robbery took place at
Loon Grocery, located at 2501 South Lyndale Avenue in Minneapolis. Notice of Removal
[Docket No. 1] Ex. 2 (“Complaint”) ¶ 6; Timothy Skarda Aff. [Docket No. 14] Ex. 1 (“Incident
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).
Report”), at 1. Sgt. Mattsson was in the neighborhood of the grocery, when at 7:32 p.m., he
received the initial description of the robbery suspect: white male, 25-27 years old, black
stocking cap, black sweatshirt and blue jeans. Mattsson received a further report that the suspect
was on foot eastbound and then possibly northbound. At approximately 7:36 p.m. Mattsson
observed an individual later determined to be Wroblewski walking eastbound on 26th street, 6.5
blocks southeast of the Loon Grocery.2 Id.; Mattsson Decl. [Docket No. 13] Ex. 3.
Mattsson turned his squad car’s spotlight on Wroblewski. Steven Uhr Aff. [Docket No.
17] Ex. 2 (“Wroblewski Dep.”) 25:24. Wroblewski turned and stopped as Mattsson pulled up
beside him. Id. at 25:25–26:4. Mattsson asked Wroblewski, “Where are you going? Why are
you here?” Id. at 26:13-14. Wroblewski told the officer, “That’s really not any of your business,
what I’m doing here and where I’m going.” Id. at 26:14-15. Mattsson continued to question
Wroblewski; Mattsson asked Wroblewski to identify himself and told Wroblewski that he looked
“exactly like someone that committed a robbery.” Id. at 26:25–27:4. Wroblewski said, “It
definitely is not me.” Id. at 27:5. According to Wroblewski, Mattsson then got out of his squad
car and continued to ask Wroblewski questions about his identity and where he was going. Id. at
27:6-7. Wroblewski did not answer Mattsson’s questions and asked if he could call his attorney;
Mattsson told him he could not call his attorney. Id. at 27:7-11. At this point, Wroblewski told
Mattsson that he was not going to answer any of Mattsson’s questions. Id. at 27:15-17.
Wroblewski is a white male, 30 years old, 5’9”, and was wearing dark sweatpants and a
zippered North Face jacket on the night of the incident. In addition, Wroblewski was carrying a
rock-climbing harness. Wroblewski was going to Vertical Endeavors, a rock climbing facility
2
Plaintiff is not challenging the initial interaction between Mattsson and Plaintiff. Mem.
Opp’n [Docket No. 15] 11. Plaintiff concedes that the initial stop may have been justified.
2
located on the corner of 25th Street and Nicollet Avenue. At 7:38 p.m., a second description of
the suspect was broadcast: white male, in his 20’s, height 6’1”, clean shaven, wearing all black,
black cap, black jacket-jeans, dirty looking. Incident Rpt. at 2. Mattsson noted Wroblewski had
a dark jacket with a “North Face” logo, so Mattsson radioed to ask if the officers at Loon
Grocery knew if the robber “had any markings on his coat.” Uhr Aff. ¶ 1. The officers at the
store responded that the clerk “doesn’t believe so but not 100% sure.” Id.
Officer McKenna then arrived on the scene of the stop and approached Wroblewski from
behind. Wroblewski said he wanted to call his attorney and moved his hand toward his pocket to
retrieve his phone. Wroblewski Dep. at 29:5-7. Mattsson told Wroblewski not to put his hands
in his pockets. Id. at 29:8-10. Wroblewski put his harness and his other belongs down on the
ground. McKenna applied handcuffs and then searched Wroblewski’s pockets, removing
Wroblewski’s cellphone and keys.3 Id. at 29:21–30:6. Wroblewski was placed in the back of
McKenna’s squad car. Wroblewski claims McKenna used profanity repeatedly even after
Wroblewski asked him to stop. McKenna also allegedly told Wroblewski that he was legally
obligated to identify himself. Wroblewski complained repeatedly that the cuffs were too tight.
McKenna did not check the handcuffs and did not loosen them.
At 7:55 p.m., Mattsson radioed Loon Grocery to set up a “show up” where the victim
would observe the suspect to see if the suspect was the robber. Incident Rpt. at 2. An officer
volunteered to pick up the victim clerk and bring him to see if he recognized Wroblewski. By
8:01 p.m. the clerk had arrived, McKenna had taken Wroblewski out of the squad car, and the
clerk indicated that Wroblewski was not the robber. Id. McKenna had Wroblewski return to
3
Mattsson claims Officer McKenna placed Wroblewski in handcuffs because
Wroblewski pulled away before McKenna had an opportunity to do a full pat search.
3
the squad car, still handcuffed. Wroblewski Dep. 33:18. McKenna argues that he was
considering citing Wroblewski for obstruction of legal process and could not do so unless
Wroblewski identified himself. Wroblewski was not told about the possible obstruction charge;
he recalls McKenna continuing to use profanity and telling him that he was being held because
he was also a suspect in another robbery. Id. at 34:15-24. Another officer had allegedly already
told McKenna that Wroblewski did not resemble the suspect description in that other case. The
exact order of events and statements following the “show up” is unclear, but Wroblewski claims
McKenna told him that if he did not identify himself, then he would be taken to the police
station. Id. at 34:23–35:18. At that point Wroblewski gave his name. Id. McKenna checked
Wroblewski’s name in the police database and then released him. Wroblewski was released
within 5 minutes of the victim clerk’s failing to identify Wroblewski as the robber. Incident Rpt.
at 2.
From these events, Wroblewski alleges injury to his right wrist in the form of a tingling
sensation. Compl. ¶ 26; Wroblewski Dep. at 10. Weeks later, on December 30, 2011,
Wroblewski received medical care from Brandy L. Utter, M.D. Uhr Aff. Ex. 9. The doctor
conducted a variety of tests on Wroblewski’s wrist and recommended wearing a brace, resting,
stretching, and taking some non-prescription strength pain medication. Id. The doctor wrote, “If
no improvement in 2-3 weeks, he will need to follow up.” Id. No further medical reports have
been provided.4
4
Plaintiff directs the Court to Uhr Aff. Ex. 10, but no such exhibit exists in the record.
The only medical report provided to the court is Ex. 9.
4
III. DISCUSSION
A.
Standard of Review
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue “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 judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (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).
B.
42 U.S.C. § 1983 Claim Against McKenna and Mattsson
“Section 1983 imposes liability for certain actions taken ‘under color of’ state law that
deprive a person ‘of a right secured by the Constitution and laws of the United States.’” Dossett
v. First State Bank, 399 F.3d 940, 947 (8th Cir. 2005) (quoting Lugar v. Edmondson Oil Co., 457
U.S. 922, 931 (1982)).
Wroblewski claims Mattsson and McKenna (the “Officers”), detained him without lawful
justification or reasonable suspicion. Wroblewski argues Mattsson and McKenna violated his
rights by detaining him for an unreasonably long time, by searching his pockets without consent,
by placing him in handcuffs that were too tight and refusing to loosen them, and finally, by using
profanity and verbally abusing him during the detention. Compl. ¶¶ 46-49. Wroblewski also
5
alleges that this conduct was willful and in bad faith. Id. at ¶ 50. Defendants claim they are
entitled to qualified immunity.
The standard for assessing qualified immunity is one of “objective legal reasonableness.”
Winters v. Adams, 254 F.3d 758, 766 (8th Cir. 2001) (citing Harlow v. Fitzgerald, 457 U.S. 800,
819 (1982)). The first question is whether, viewing the facts in the light most favorable to the
party asserting the injury, the officer’s conduct violated a constitutional right. Saucier v. Katz,
533 U.S. 194, 201 (2001), overruled in part, Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). If
the first question is answered in the affirmative, the second question is whether the right violated
was clearly established.5 Id. “Defendants will not be immune if, on an objective basis, it is
obvious that no reasonably competent officer would have concluded that the defendant should
have taken the disputed action.” Winters, 254 F.3d at 766. “Whether a given set of facts entitles
the official to summary judgment on qualified immunity grounds is a question of law.” Greiner
v. City of Champlin, 27 F.3d 1346, 1352 (8th Cir. 1994).
1. Terry Stop
The Fourth Amendment protects citizens against unreasonable searches and seizures,
even when the seizure does not result in prosecution for a crime. Terry v. Ohio, 392 U.S. 1, 16
(1968).6 However, if an officer has reasonable articulable suspicion a person has committed or is
5
In Pearson, the Supreme Court ruled that courts have the discretion to evaluate the
second question before deciding the first question. See Pearson, 129 S.Ct. at 818.
6
Chief Justice Earl Warren candidly held that the interaction of police and citizen on the
street “thrusts to the fore difficult and troublesome issues.” Terry, 392 U.S. at 9. On the one
hand, “No right is held more sacred, or is more carefully guarded, by the common law, than the
right of every individual to the possession and control of his own person, free from all restraint
or interference of others, unless by clear and unquestionable authority of law.” Id. On the other
hand the police have been tasked with “rapidly unfolding and often dangerous situations on city
streets” and are called upon to act in the interest of effective law enforcement. Id. at 10.
6
about to commit a crime, then a police officer may temporarily seize a suspect for the purpose of
questioning. Florida v. Royer, 460 U.S. 491, 498 (1983) (citing United States v. BrignoniPonce, 422 U.S. 873, 881-82 (1975)); United States v. Morgan, 729 F.3d 1086, 1089 (8th Cir.
2013) (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)).
“Officers should employ the least intrusive means reasonably available to verify or dispel
their suspicions.” Morgan, 729 F.3d at 1091. But, when confronted with a potentially dangerous
suspect or a suspect that may flee, then handcuffing and confining a suspect to a police officer’s
squad car awaiting a “show up” can be reasonable, and does not change a Terry stop into an
arrest. See Michigan v. Summers, 452 U.S. 692, 702 (1981); and see United States v. Martinez,
462 F.3d 903, 908 (8th Cir. 2006); El-Ghazzawy v. Berthiaume, 636 F.3d 452, 457 (8th Cir.
2011) (the use of handcuffs “requires some reasonable belief that the suspect is armed and
dangerous or that the restraints are necessary for some other legitimate purpose, evaluated on the
facts of each case”).
In the circumstances of this case, the limits of a Terry stop were not exceeded when
Wroblewski was handcuffed and placed in a squad car to await the “show up.” Wroblewski is
not challenging his initial interaction with Mattsson. Mem. Opp’n [Docket No. 15] 11.
Wroblewski concedes the initial Terry stop may have been justified by reasonable suspicion.
But, even so, Wroblewski argues Mattsson violated the scope limitation of Terry. First,
Wroblewski argues that once Mattsson exited his vehicle and got a closer look at Wroblewski, it
was clear that he looked nothing like the description of the robbery suspect. Second,
Wroblewski argues the officers did not need such a long time to dispel their suspicions. Id.
Finally, Wroblewski argues the officers intruded on his personal liberty by handcuffing and
searching him.
Mattsson had reasonable suspicion Wroblewski was the Loon Grocery robbery suspect
7
because Wroblewski was on foot, only blocks away from Loon Grocery, and walking eastbound.
Furthermore, the radioed descriptions were not so different from Mattsson’s observations of
Wroblewski. The first description reported the suspect as a white male, 25-27 years old, black
stocking cap, black sweatshirt, and blue jeans. The second description changed slightly,
describing the suspect as in his mid-20’s, height 6’1”, clean shaven, wearing all black, black
jacket-jeans, dirty-looking. Wroblewski was a 30 year old, white male, was wearing dark
clothes not unreasonably different from the descriptions radioed, and was sufficiently tall to
prevent elimination from the suspicion on that basis. Wroblewski argues that Mattsson should
have released him as soon as Mattsson saw that Wroblewski was wearing a dark blue North Face
jacket and dark sweatpants, instead of a black sweatshirt and blue jeans. At night, black
clothing, dark clothing, and blue jeans may be easily confused. Mattsson did note the North
Face logo and radioed to an officer at Loon Grocery, but the clerk was “not 100% sure” about
further specifics of what the robbery suspect was wearing. Mattsson made a reasonable decision
to wait on releasing Wroblewski until he had more definite information.
Mattsson and McKenna’s task of dispelling their suspicions was made more difficult by
Wroblewski himself. When he approached Wroblewski, Mattsson asked Wroblewski where he
was going and why he was in the neighborhood. Wroblewski decided not to respond to Mattsson
and McKenna, as was his right. See Berkemer v. McCarty, 468 U.S. 420, 439 (1984). But,
Wroblewski’s decision prevented Mattsson and McKenna from using the quickest means of
dispelling their suspicions. Wroblewski could have told Mattsson that his car was parked nearby
and that his driver’s license was inside. The Officers, when they could not get answers from
Wroblewski, decided a “show up” would be the most efficient way to confirm or dispel
suspicion. See Martinez, 462 F.3d at 908. Mattsson stopped Wroblewski at approximately 7:38
p.m. By 8:01 p.m., the “show up” was conducted. Less than 25 minutes is not an unreasonably
8
long time for an officer to conduct a “show up” when the scene of the crime is 6.5 blocks away
and the suspect exercised his constitutional right not to respond to police questions.7 In addition,
“there is no evidence that any of the law enforcement officers were dilatory in their investigation
or that there was an unnecessary delay” in bringing the clerk to the “show up.” See Kaleta v.
Johnson, No. 12-170, 2013 U.S. Dist. LEXIS 95116, at *41 (D. Minn. July 9, 2013) (citing
United States v. Maltais, 403 F.3d 550, 557 (8th Cir. 2005)).
Finally, the Officers were responding to a reported robbery and were looking for a
suspect fleeing the scene of the crime. Although no weapon was reportedly used at Loon
Grocery, the officers were reasonably cautious because robbery is a felony and a crime of
violence. Minn. Stat. §§ 609.24 and 624.712. The Officers also reported that Wroblewski was
agitated and was holding something in his hands. Wroblewski claims that he asked to call his
attorney and moved his hand toward the cellphone in his pocket. Mattsson, nervous Wroblewski
might have a weapon in his pocket, told him not to do that. Wroblewski claims he complied
with Mattsson’s orders and kept his hands away from his pockets. Wrobelwski maintains that he
was calm throughout the interaction, but admits that when McKenna approached him from
behind, he may have “flinched” as McKenna began to pat him down for weapons. McKenna
claims Wroblewski pulled away, at which point he decided to put on the handcuffs to complete
the pat down. Either way, in responding to the robbery, the Officers were reasonable in wanting
to maintain the status quo for their investigation, protect themselves from a possible weapon, and
prevent Wroblewski from walking away. In sum, stopping Wroblewski and detaining and
handcuffing him constituted a seizure, but was, under the totality of circumstances, objectively
7
Wroblewski argues that he should have been transported to the store for the “show up,”
rather than waiting for an officer to pick up the clerk and conduct the “show up” at the stop
location. Whether this would have saved time is debatable, as Wroblewski, would have needed
to be transported later, back to the scene of the stop. Given the short time-frame, the Court
declines to second guess the officer’s decision not to transport the suspect.
9
reasonable.
2. Excessive Force
When an excessive force claim “arises in the context of an arrest or investigatory stop of
a free citizen, it is most properly characterized as one invoking the protections of the Fourth
Amendment.” Graham v. Connor, 490 U.S. 386, 394 (1989). As such, force used in the course
of an arrest must be reasonable. Id. at 395-96. The officer’s use of force must be viewed in
context, with “careful attention to the facts and circumstances” of the case at hand. Id. at 396.
The 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.” Id. If an officer’s actions are objectively
reasonable, qualified immunity will prevent liability. Id. at 397.
The Eighth Circuit Court of Appeals recently clarified how courts in this district evaluate
the use of force during an arrest. See Chambers v. Pennycock, 641 F.3d 898, 905-08 (8th Cir.
2011). It is well established that “the right to make an arrest or investigatory stop necessarily
carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Id.
at 905 (internal quotation omitted). “Police officers undoubtedly have a right to use some degree
of physical force . . . to effect a lawful seizure, and reasonable applications of force may well
cause pain or minor injuries with some frequency.” Id. at 907 (citation omitted). “It remains
firmly established that ‘[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.’” Id. (quoting Graham, 490 U.S.
396). “Resistance may justify the use of greater force.” Crumley v. City of St. Paul, Minn., 324
F.3d 1003, 1008 (8th Cir. 2003). “If an officer reasonably, but mistakenly, believed that a
suspect was likely to fight back, for instance, the officer would be justified in using more force
than in fact was needed.” Saucier, 533 U.S. at 205.
Mattsson was five to ten feet from Wroblewski and did not use any force against
10
Wroblewski. It was McKenna who applied the handcuffs and took Wroblewski to his squad car.
Therefore Mattsson is not reasonably implicated in Wroblewski’s excessive force claims.
As for McKenna’s actions, placing Wroblewski in handcuffs was objectively reasonable;
therefore the only remaining question is whether the force used was excessive.8 “Determining
whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment
requires a careful balancing of the ‘nature and quality of the intrusion on the individual’s Fourth
Amendment interests’ against the countervailing government interests at stake.” Graham, 490
U.S. at 396. “Handcuffing inevitably involves some use of force and it almost inevitably will
result in some irritation, minor injury, or discomfort where the handcuffs are applied.”
Chambers, 641 F.3d at 907 (internal quotations and citations omitted).
In this case, the government interest was in apprehending a robbery suspect. On the
other hand, Wroblewski claims the handcuffs were too tight, caused abrasions on his right wrist,
and he continues to experience tingling in his right hand which interferes with his day-to-day
activities. In support of his claims, Wroblewski has submitted one medical report. The doctor’s
exam, on December 30, 2011, resulted in a recommendation for over the counter pain medicine
and rest. The medical report recommended Wroblewski return in 2-3 weeks if the wrist
continued to bother him. Wroblewski has provided no evidence of subsequent medical
treatment. Wroblewski also claims McKenna swore at him and was verbally abusive. There is
no evidence that McKenna’s profanity had any serious impact on Wroblewski.
8
Wroblewski claims that during the course of McKenna’s pat down of Wroblewski,
McKenna removed Wroblewski’s cellphone from his pocket and placed it on the hood of the
squad car. McKenna denies that he removed Wroblewski’s cellphone and testifies that he knows
a Terry frisk is limited to a pat down for weapons, restricted to the outside of a suspect’s
clothing. In a criminal case, where the cellphone was the fruit of an improper Terry frisk, the
remedy, if the accusation was credited, would be exclusion of the evidence from trial. In this
civil case however, this dispute is not a material question of fact. There is no indication that
Wroblewski or his cellphone were damaged in any way by the removal of the cellphone from his
pocket; therefore, the issue cannot affect monetary damages or officer liability.
11
The Court does not wish to make light of Wroblewski’s claims. McKenna may well have
been mistaken about the threat Wroblewski posed to him and the other officers. And if
McKenna did use profanity as claimed in the execution of his duties, it was unnecessary and
unhelpful in these circumstances. But even taking everything Wroblewski claims as true,
McKenna’s conduct does not rise to the level of excessive force given the circumstances.
3. Further Detention
It is difficult to imagine what damages stem from Wroblewski’s final complaint about the
scope of his Terry investigation. Even so, the Court will address McKenna’s continued
detention of Wroblewski following the negative “show up.” Wroblewski argues that following
the negative “show up,” McKenna should have immediately released him, rather than detaining
him for an additional five minutes.
There is no bright line rule for limiting the scope of a Terry stop; instead, “common sense
and ordinary human experience must govern over rigid criteria.” Morgan, 729 F.3d at 1091
(citing United States v. Sharpe, 470 U.S. 675, 686 (1985)). An investigative detention only
turns into an arrest if it lasts an “unreasonably long time.” United States v. Donnelly, 475 F.3d
946, 952 (8th Cir. 2007). In this case, McKenna had a duty to throughly investigate the robbery
of Loon Grocery. After a negative “show up,” it is still reasonable for an officer to try and
identify the suspect at hand. If the clerk at the grocery store had been too nervous to identify the
suspect face to face at the “show up,” but decided to identify the individual privately the next
day, McKenna would have no way to track down Wroblewski without his identity. Therefore,
common sense dictates that an additional 5 minutes of detention did not extend Wroblewski’s
detention an unreasonably long time.
4. Individual or Official Capacity
Wroblewski’s individual liability claims against Mattsson and McKenna are dismissed on
12
an alternative ground. Claims under § 1983 may be made against a defendant in either an
individual or official capacity. “Personal-capacity suits seek to impose personal liability upon a
government official for actions he takes under color of state law.” Kentucky v. Graham, 473
U.S. 159, 165 (1985) (citation omitted). “Official-capacity suits, in contrast, ‘generally represent
only another way of pleading an action against an entity of which an officer is an agent.’” Id. at
165-66 (citing Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690 n.55 (1978)).
See, Section III.C below. The Eighth Circuit has established a bright line rule, that plaintiff must
sue public officials in their individual capacity or it will be assumed that the official is sued in
his official capacity. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). As
the Eighth Circuit has explained, public servants are entitled to proper notice that they may be
exposed to civil liability and damages. Id.; see also Egerdahl v. Hibbing Cmty. Coll., 72 F.3d
615, 619-20 (8th Cir. 1995), and Lopez-Buric v. Notch, 168 F. Supp. 2d 1046, 1050 (D. Minn.
2001) (the case law in this circuit is sufficiently clear that plaintiff must include unambiguous
language in his complaint noting that the defendants are sued in their individual capacity); but cf.
McKenzie v. Frokjer, No. 07-3413, 2009 U.S. Dist. LEXIS 45627 (D. Minn. Feb. 23, 2009).
Wroblewski did not indicate in his complaint that the Officers were sued in their individual
capacity.9
C.
Section 1983 Claims Against City of Minneapolis
Under § 1983, a plaintiff may sue a city, and a city’s employees in their official capacity,
for a deprivation of constitutional rights if the City took formal action to cause the violation. A
9
The government did not raise this argument as grounds for dismissal, but this only
demonstrates the need for the rule. In official capacity suits, the assumption is that officers are
named in the suit only as officers or agents of the public entity. In that case, attorneys for the
public entity can easily make arguments for the public entity employing the individuals. But
individual capacity suits implicate qualified immunity defenses separate from the public entity’s
defenses and individuals so sued should have the opportunity to hire counsel to represent them.
See Lopez-Buric, 168 F. Supp. 2d at 1050.
13
formal action, or policy, is one that “implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by [the City’s] officers.” Monell, 436
U.S. at 690. In addition to an officially adopted policy, liability may attach to a City for
constitutional violations that result from “custom,” even though the City may not have formally
approved the custom. See id.; see also Kuha v. City of Minnetonka, 365 F.3d 590, 603 (8th Cir.
2003), abrogated in part on other grounds, Szabala v. City of Brooklyn Park, 486 F.3d 385 (8th
Cir. 2007).
Eighth Circuit courts have consistently recognized a difference between a city’s official
“policies” and its “customs.” Absent an official policy, a plaintiff must identify a “custom or
usage” that caused the alleged violation. See Kuha, 365 F.3d at 603-04. A “custom or usage” is
demonstrated by:
(1) the existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the city’s employees;
(2) deliberate indifference to or tacit authorization of such conduct by the city’s
policymaking officials after notice to the officials of that misconduct; and
(3) the plaintiff’s injury by acts pursuant to the governmental entity’s custom, i.e.,
proof that the custom was the moving force behind the constitutional violation.
See id. (citing Jane Doe A v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir. 1990)). To
demonstrate Minneapolis’s liability under a Monell claim, Wroblewski must show that a policy
or custom of Minneapolis was the “moving force [behind] the constitutional violation.” Mettler
v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (citation omitted).
Here, the Monell claim fails because no constitutional right was violated and Wroblewski
has presented no evidence of a Minneapolis police policy or custom that could have been the
moving force behind Mattsson or McKenna’s decisions. Therefore, no § 1983 municipal
liability can apply.
14
D. State Tort Claims
In addition to his claims under § 1983, Wroblewski asserts claims of assault and battery
(Count II), and false arrest/imprisonment (Count I) against Mattsson and McKenna.10
“[U]nder Minnesota law, a public official is entitled to official immunity from state law
claims when that official is charged by law with duties that require the exercise of judgment or
discretion.” Johnson v. Morris, 453 N.W.2d 31, 41 (Minn. 1990). Law enforcement officers are
“generally classified as discretionary officers who may be entitled to official immunity.” Nelson
v. Cnty. of Wright, 162 F.3d 986, 991 (8th Cir. 1998) (citing Johnson, 453 N.W.2d at 42). “[A]
public official charged by law with duties which call for the exercise of his judgment or
discretion is not personally liable to an individual for damages unless he is guilty of a willful or
malicious wrong.” Elwood v. Rice Cnty., 423 N.W.2d 671, 677 (Minn. 1988).
1. Assault and Battery
Under Minnesota law, to establish a claim of assault and battery against an on-duty
officer, Wroblewski must demonstrate that an officer used excessive force to effectuate the
arrest. Paradise v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn. 1980). As previously
discussed, excessive force was not used in the detention of Wroblewski. As a result, his assault
and battery claim fails.
2. False Imprisonment
Wroblewski also claims that Defendants falsely imprisoned him. However, if
Wroblewski’s detention was reasonable, a claim for false imprisonment cannot stand. Johnson,
453 N.W.2d at 36. Consequently, judgment will be entered for Defendants on Plaintiff’s false
10
Wroblewski has elected not to pursue his Intentional Infliction of Emotional Distress
Claim (Count III). Mem. Opp’n 1.
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imprisonment count.
IV. CONCLUSION
Based upon upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1.
Defendants’ Motion for Summary Judgment [Docket No. 10] is GRANTED; and,
2.
All claims in the Complaint [Docket No. 1] are DISMISSED WITH
PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: December 5, 2013.
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