Rosillo v. Holten et al

Filing 33

ORDER: Defendant Holten's Motion for Summary Judgment 17 is GRANTED. Defendant Holten is DISMISSED from this action. (Written Opinion) Signed by Judge Joan N. Ericksen on December 23, 2014. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Alfredo Rosillo,
Plaintiff,
No. 13-cv-1940 (JNE/SER)
ORDER

v.
Matt Holten and Jeff Ellis,
Defendants.

Plaintiff Alfredo Rosillo has brought this action under 42 U.S.C. § 1983 against Austin,
Minnesota police officer Matt Holten and Mower County Sheriff’s deputy Jeff Ellis. The matter
is currently before the Court on Holten’s motion for summary judgment. For the reasons
discussed below, the motion is granted and Holten is dismissed from the case.

Background
The events giving rise to this lawsuit occurred in June of 2011, following an incident at
the home of Rosillo’s girlfriend in Austin, Minnesota. Rosillo concedes that he was present, but
admits to no wrongdoing. That position is at odds with the Minnesota criminal courts’
determination that Rosillo “assaulted his girlfriend, broke into her home, assaulted her again and
stole money from her purse, and fled on foot while tossing bags of methamphetamine into a
neighbor’s yard.” State v. Rosillo, No. A13-0502, 2014 WL 1660641, at *1 (Minn. Ct. App.
Apr. 28, 2014), review denied (July 15, 2014).
Nevertheless, it is undisputed here that, when the police were called, Rosillo ran away
from the home and through a swampy area before stopping several blocks away and lying down
in a field covered with waist-high grass.
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Austin police officer Holten and Mower County Sheriff’s Deputy Ellis were dispatched
to apprehend Rosillo. Accompanied by Holten’s police dog, Ghost, the officers tracked Rosillo
to the field where he lay and proceeded to take him into custody. Rosillo alleges that, in doing
so, the officers used excessive force, which they deny.
Following his arrest, Rosillo was tried and convicted of domestic assault, first-degree
burglary, first-degree aggravated robbery, and fifth-degree possession of methamphetamine,
while being acquitted of several other charges. Id. at *2. He was sentenced to 240 months’
imprisonment. Id.
Several months later, Rosillo filed this civil action under 42 U.S.C. § 1983, asserting in a
single-count Complaint that, during the arrest, Holten and Ellis “separately and in concert, under
the color of state law, knowingly and willfully deprived [him] of his clearly established and well
settled civil rights to due process and to be free from an unreasonable K9 attack, prolonged K9
biting, use of excessive, unreasonable force and unreasonable seizure.”
Holten’s motion for summary judgment has now followed.

Discussion
Under Federal Rule of Civil Procedure 56(a), summary judgment is warranted if Holten
“shows that there is no genuine dispute as to any material fact and [he] is entitled to judgment as
a matter of law.” In this procedural posture, the facts are viewed in the light most favorable to
Rosillo, and all reasonable inferences from those facts are drawn in his favor. E.g., Chambers v.
Pennycook, 641 F.3d 898, 904 (8th Cir. 2011).
With his motion, Holten argues that he should be dismissed from this case for either of
two reasons: first, Rosillo has sued him only in his official capacity, but has no evidence to

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sustain such a claim; and second, even if Rosillo’s Complaint is construed to include an
individual capacity claim against Holten, he is entitled to qualified immunity.
The first point is determinative.

I.

Official v. individual capacity.
The threshold issue presented by the motion is whether Rosillo has asserted his § 1983

claim against Holten in either his official or individual capacity (or perhaps both). Holten argues
that Rosillo has sued him in his official capacity only, while Rosillo contends that he has sued
Holten in his individual capacity only. Holten has the better of this dispute.
“[T]he distinction between official-capacity suits and personal-capacity suits is more than
a mere pleading device.” Hafer v. Melo, 502 U.S. 21, 27 (1991) (quotation omitted). A § 1983
claim against a public official in his official capacity is qualitatively different than one arising
from the same set of facts and asserted against the same official in his individual capacity: the
former is “functionally equivalent to a suit against the employing governmental entity,” while the
latter is a claim against the official personally. Veatch v. Bartels Lutheran Home, 627 F.3d 1254,
1257 (8th Cir. 2010). “For many reasons, including exposure to individual damage liability and
[the availability of different] immunity [defenses], these are different causes of action.” Baker v.
Chisom, 501 F.3d 920, 923 (8th Cir. 2007).
As a result, the Eighth Circuit has for decades required a plaintiff intending to sue a
public official in his individual capacity to say so explicitly in his pleadings:
[T]his court has often considered [whether] a plaintiff [has] properly asserted §
1983 claims against a public official acting in his individual capacity. We have
repeatedly stated the general rule: “If a plaintiff’s complaint is silent about the
capacity in which [he] is suing the defendant, we interpret the complaint as
including only official-capacity claims.” Egerdahl v. Hibbing Cmty. Coll., 72
F.3d 615, 619 (8th Cir. 1995); see Nix. v. Norman, 879 F.2d 429, 431 (8th Cir.
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1989). “If the complaint does not specifically name the defendant in his
individual capacity, it is presumed he is sued only in his official capacity.” Artis
v. Francis Howell N. Band Booster Ass’n, Inc., 161 F.3d 1178, 1182 (8th Cir.
1998). . . .
[O]ur cases require more than ambiguous pleading. See Andrus ex rel. Andrus v.
Arkansas, 197 F.3d 953, 955 (8th Cir. 1999) (“specific pleading of individual
capacity is required”); Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th
Cir. 1999) (“only an express statement that [public officials] are being sued in
their individual capacity will suffice”); Murphy v. State of Arkansas, 127 F.3d
750, 754 (8th Cir. 1997) (“a clear statement that officials are being sued in their
personal capacities” is required). A “cryptic hint” in plaintiff's complaint is not
sufficient. Egerdahl, 72 F.3d at 620.
Id.
Nowhere in his Complaint does Rosillo specifically, expressly, or clearly state that he is
suing Holten in his individual capacity. Neither, for that matter, does Rosillo state in the
Complaint that he is suing Holten in his official capacity. In light of the precedent above, this
silence is all that need to be noted.
Nevertheless, it is worth considering that, though the Complaint lacks an express
statement as to Holten’s capacity, it was in other ways sufficient to put Holten on notice that
Rosillo intended to sue him in his individual capacity, either solely or in conjunction with an
official capacity claim. For instance, Rosillo alleges in his Complaint that “[p]unitive damages
are available against [Holten],” which would be true only if he was sued in his individual
capacity. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1982) (holding “that a
municipality is immune from punitive damages under 42 U.S.C. § 1983”). What’s more, in
answering Rosillo’s Complaint, Holten himself asserted the defense of qualified immunity,
which would be relevant only if he were sued in his individual capacity. See Owen v. City of
Independence, Mo., 445 U.S. 622, 650 (1980) (holding that, under § 1983, municipalities are not
entitled to “qualified immunity based on the good faith of their officers”). And in fact, Holten
has argued his qualified immunity defense here as an alternative basis for summary judgment.
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Even this, however, affords no basis for overlooking Rosillo’s failure to specifically
assert his § 1983 claim against Holten in his individual capacity in the Complaint. The Eighth
Circuit has emphasized that its requirement of express pleading of individual capacity claims is
strict, 1 in contrast with the “more lenient” and flexible § 1983 pleading rules that prevail in other
circuits. Murphy v. State of Ark., 127 F.3d 750, 755 (8th Cir. 1997). See also Baker, 501 F.3d at
924 n.2 (explaining that the “flexible approach” to pleading individual capacity claims urged on
the panel by the plaintiff is foreclosed by circuit precedent and therefore may only be adopted by
the court sitting en banc).
Consistent with this strict approach to pleading, the Eighth Circuit has found that a
complaint did not state an individual capacity claim under § 1983 even where its “substantive
paragraphs included a reference to [the defendants] as ‘individual Defendants’ and [the plaintiff]
prayed for ‘exemplary damages’ that may not be recovered in an official capacity suit.” Id. at

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The Eighth Circuit’s strict pleading rule was born both of a concern that defendants
receive clear notice of the claims against them and of jurisprudence establishing that “[t]he
Eleventh Amendment presents a jurisdictional limit on federal courts in civil rights cases against
states and their employees.” Murphy, 127 F.3d at 755 (quoting Nix v. Norman, 879 F.2d 429,
431 (8th Cir. 1989)).
The rule, having been established, applies equally to § 1983 complaints against county
and municipal officials, where the Eleventh Amendment is not implicated. Mt. Healthy City
School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (“The bar of the Eleventh
Amendment to suit in federal courts extends to States and state officials in appropriate
circumstances, . . . but does not extend to counties and similar municipal corporations.”)
(citations omitted). See Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999)
(applying pleading rule and finding that complaint included claim against county sheriff only in
his official capacity); Artis v. Francis Howell North Band Booster Ass’n, Inc., 161 F.3d 1178,
1182 (8th Cir. 1998) (applying pleading rule and finding that complaint included claim against
school district band director only in his official capacity); D.E.S. v. Kohrs, 187 F.3d 641, 641
(8th Cir. 1999) (unpublished) (applying pleading rule sua sponte to complaint against city
detective and finding that it “failed to state an individual capacity claim,” even where “both
parties and the district court construed the 1983 suit as against [the defendant] in his individual
capacity”). See also Baker, 501 F.3d at 926-27 (Gruender, J., concurring in part and dissenting
in part) (discussing basis of circuit precedent establishing “bright-line presumption” against
individual capacity claim where it is not expressly pled).
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924. The Eighth Circuit has also determined that a “district court erred in excusing [the
plaintiff’s] failure to clearly assert personal capacity claims in his initial complaint” based on a
conclusion that the defendants otherwise had adequate notice that the plaintiff intended the
claims as such. Murphy, 127 F.3d at 754-55.
Precedent therefore dictates that Rosillo’s Complaint, which contains no express
statement as to the capacity in which Holten was sued, be interpreted to assert only an official
capacity claim against him.

II.

Municipal liability.
Consequently, Rosillo’s § 1983 claim against Holten is effectively a claim against the

government entity that employs him, the City of Austin. See Johnson, 172 F.3d at 535 (“A suit
against a public employee in his or her official capacity is merely a suit against the public
employer.”). To establish Austin’s liability, Rosillo bears the burden of proving both that Holten
violated his constitutional rights and that the city is at fault for that violation. Veatch, 627 F.3d
at 1257. Rosillo may meet this burden by showing that Holten committed a constitutional
violation that “resulted from (1) an ‘official municipal policy,’ . . . (2) an unofficial ‘custom,’ . . .
or (3) a deliberately indifferent failure to train or supervise . . . .” Atkinson v. City of Mountain
View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013) (citing Monell v. Department of Social Services,
436 U.S. 658, 690-91 (1978) and City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)).
Rosillo argues that he has sufficient evidence to sustain his allegation that Holten violated
his constitutional rights during the arrest. But even were that the case, Rosillo makes no attempt
at all to establish the requisite link between that alleged violation and any policy, custom, action,
or inaction on the part of the City of Austin.

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Summary judgment for Holten is therefore proper on the official capacity claim that
Rosillo pled against him.

III.

Amendment of pleadings.
In his memorandum in opposition to Holten’s motion, Rosillo writes: “If this Court

perceives Plaintiff’s Complaint as a claim against Holten’s employer, I request an Order that
Holten is sued in his individual capacity, while he was acting under the color of law.” The Court
understands Rosillo thus to be seeking leave to amend his Complaint to add a claim against
Holten in his individual capacity.
As an initial matter, Rosillo has not complied with the District of Minnesota’s Local Rule
15.1, which requires a party seeking leave to amend to submit a motion to that effect,
accompanied by the proposed amended pleading. Furthermore, the Eighth Circuit has held “that
granting leave to amend a complaint where the plaintiff has not submitted a proposed
amendment is inappropriate.” Popoalii v. Correctional Medical Services, 512 F.3d 488, 497 (8th
Cir. 2008) (citing Wolgin v. Simon, 722 F.2d 389, 394 (8th Cir. 1983)). Nevertheless, the change
that Rosillo proposes to make to the Complaint – adding the requisite statement expressly
naming Holten as a defendant in his individual capacity – is not a mystery here.
Rosillo’s failure to justify that amendment at this stage of the litigation, however, is of far
more significance. The Scheduling Order entered in this case set a deadline of April 1, 2014 for
filing “all motions which seek to amend the pleadings to add claims . . . .” Rosillo’s request to
amend appears in his summary judgment briefing, filed more than seven months after that
deadline expired. Consequently, leave to amend may only be granted in accordance with Federal
Rule of Civil Procedure 16(b), under which “[a] schedule may be modified only for good cause

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and with the judge’s consent.” Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir.
2008). Yet Rosillo – who is represented by counsel here – has made no effort to demonstrate
good cause for amending his Complaint at this late stage. His request should therefore be
denied. See Harris v. FedEx Nat. LTL, Inc., 760 F.3d 780, 786 (8th Cir. 2014) (“A district court
acts ‘within its discretion’ in denying a motion to amend which made no attempt to show good
cause.”) (citations omitted).
Even looking past Rosillo’s failure to support his request, the only possible justification
for a late amendment that can be gleaned from Rosillo’s submissions is that he believed from the
start that he had properly pled an individual capacity claim against Holten, and therefore saw no
reason to amend the pleadings within the deadline set by the Scheduling Order.
This does not satisfy the good cause standard. See Schenk v. Chavis, 259 F.App’x 905,
907 (8th Cir. 2008) (unpublished) (affirming denial of leave to amend based on conclusion “that
the failure to recognize the need for amended claims at an earlier date did not constitute good
cause to excuse the untimeliness of [the plaintiff’s] motion to amend”). “The primary measure
of good cause is the movant’s diligence in attempting to meet the [scheduling] order’s
requirements.” Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006). And “[i]t hardly bears
mention . . . that ‘carelessness is not compatible with a finding of diligence and offers no reason
for a grant of relief’” under Rule 16(b). N. Star Mut. Ins. Co. v. Zurich Ins. Co., 269 F.Supp.2d
1140, 1144 (D.Minn. 2003) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609
(9th Cir. 1992)). “[T]he focus of Rule 16(b) [is] on the diligence of the party seeking to modify
a Scheduling Order, as opposed to the litany of unpersuasive excuses, inclusive of inadvertence
and neglect, which commonly undergird an untimely Motion to Amend.” Scheidecker v. Arvig
Enterprises, Inc., 193 F.R.D. 630, 632 (D.Minn. 2000) (citations omitted).

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Eighth Circuit precedent on pleading an individual capacity claim under § 1983 is clear
and long-standing. Its straightforward requirement that a plaintiff expressly state in the
pleadings his intention to sue the defendant in his individual capacity, though strict, is not
onerous, and it certainly has not changed since this case began. There is no question that, had he
been diligent, Rosillo could have recognized the deficiency in his Complaint and moved to
amend it, either by adding or substituting an individual capacity claim against Holten, within the
timeframe for doing so set by the Scheduling Order. In these circumstances, leave to amend out
of time under Rule 16(b) is not available. 2 See Fed. R. Civ. P. 16(b), advisory committee note
(1983 amendment) (“[T]he court may modify the schedule on a showing of good cause if it
cannot reasonably be met despite the diligence of the party seeking the extension.”); Hartis v.
Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012) (“Where there has been no change in
the law, no newly discovered facts, or any other changed circumstance . . . after the scheduling
deadline for amending pleadings, then we may conclude that the moving party has failed to show
good cause.”) (internal quotation omitted).
Rosillo’s request to amend the Complaint is therefore denied, and Holten is dismissed
from this action.

2

Holten additionally opposes Rosillo’s request to amend the Complaint by arguing that he
would be prejudiced if Rosillo were allowed to add an individual capacity claim against him at
this late juncture. The Court is inclined to disagree. Discovery may or may not have proceeded
differently if the Complaint adequately alleged an individual capacity claim. As noted above,
Holten asserted a qualified immunity defense in his Answer and has argued it here as an
alternative basis for summary judgment.
Nevertheless, in a Rule 16(b) good cause analysis, a lack of prejudice to Holten does not
undo the consequences of Rosillo’s lack of diligence. See Sherman, 532 F.3d at 716 (“While the
prejudice to the nonmovant resulting from modification of the scheduling order may . . . be a
relevant factor, generally, we will not consider prejudice if the movant has not been diligent in
meeting the scheduling order’s deadlines.”).
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Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. Defendant Holten’s Motion for Summary Judgment [ECF No. 17] is GRANTED.
2. Defendant Holten is DISMISSED from this action.

Dated: December 23, 2014

s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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