Henke v. South Lake Minnetonka Police Dept. et al

Filing 24

MEMORANDUM OPINION AND ORDER granting 7 12 Defendants' Motions to Dismiss(Written Opinion). Signed by Judge Ann D. Montgomery on 01/06/2015. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Charles Henke,
Plaintiff,
MEMORANDUM OPINION
AND ORDER
Civil No. 14-4388 ADM/HB

v.
South Lake Minnetonka Police Department,
Bryan Litsey, William Markham, Hennepin
County Sheriff Department, and Richard W. Stanek,

Defendants.
______________________________________________________________________________
Charles Henke, pro se.
Ryan M. Zipf, Esq., League of Minnesota Cities, St. Paul, MN, on behalf of Defendants South
Lake Minnetonka Police Department, Bryan Litsey, and William Markham;
James W. Keeler, Jr., Esq., Hennepin County Attorney, Minneapolis, MN, on behalf of
Defendants Hennepin County Sheriff Department, and Richard W. Stanek.
______________________________________________________________________________
I. INTRODUCTION
On December 18, 2014, the undersigned United States District Judge heard oral argument
on Defendants South Lake Minnetonka Police Department (“SLMPD”), Bryan Litsey, and
William Markham’s Motion to Dismiss [Docket No. 7] and Defendants Hennepin County Sheriff
Department (“HCSD”) and Richard W. Stanek’s Motion to Dismiss [Docket No. 12]. As stated
at the hearing, and for the reasons discussed below, both motions are granted.
II. BACKGROUND
On September 11, 2014, Officer William Markham of the SLMPD ran a computer check
on a vehicle being driven by Charles Henke (“Henke”). Compl. [Docket No. 1] ¶ 12. Markham
learned that Henke had a misdemeanor warrant for failing to appear on a disorderly conduct
charge in Hennepin County. Id. Markham arrested Henke pursuant to the warrant. Id. At this

time, Officer Markham informed Henke that bail for the warrant was $78.00. Id. Henke had
$700 cash in his wallet and offered to pay the bail amount, but Officer Markham declined
Henke’s offer, stating “we don’t do that here.” Id. Henke’s vehicle was towed and Officer
Markham transported Henke to the Hennepin County Jail. Id. ¶ 13.
The Hennepin County Jail assumed custody of Henke around 1:00 p.m. Id. ¶ 14.
Sometime thereafter, Henke posted the $78.00 bail. Id. However, Henke was not released from
jail until around 11:00 p.m., nearly 10 hours after he arrived. Id. When he was released, the
$700.00 cash in Henke’s possession when he was booked and processed was converted into a
check. Id. A Hennepin County Deputy said the check could not be cashed for four hours. Id.
Henke later learned that the SLMPD may allow individuals arrested on warrant stops to
pay the bail amount on the spot if they have the necessary cash. Id. ¶ 15.
While not perfectly clear, Henke’s Complaint appears to allege constitutional and civil
rights violations stemming from both the traffic stop and his booking and eventual release from
the Hennepin County Jail. The constitutional violations are predicated on Officer Markham not
accepting Henke’s offer to pay the $78.00 bail at the time of his arrest and the treatment Henke
received at the Hennepin County Jail. The theory of Henke’s civil rights claims are based on the
alleged failure of the SLMPD and its Chief of Police in supervising Officer Markham.
III. DISCUSSION
A. Motion To Dismiss Standard
Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings “shall contain a short
and plain statement of the claim showing that the pleader is entitled to relief.” A pleading must
contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw a reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Determining
whether a complaint states a plausible claim for relief is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. “But where the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but not ‘shown’—‘that the pleader is entitled to relief.’” Id. (quoting
Fed. R. Civ. P. 8(a)(2)).
B. Constitutional Violations
1. Fourteenth Amendment
Henke’s Fourteenth Amendment allegations sound in due process and equal protection,
both of which Henke argues occurred when Officer Markham denied Henke’s request to pay the
$78.00 bail at the time of his arrest.
a. Due Process
Because it is unclear if Henke alleges a substantive or procedural due process claim, each
will be briefly addressed. For a substantive due process claim to survive, Officer Markham’s
conduct must be “conscious-shocking” and have violated “fundamental rights that are deeply
rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such
that neither liberty nor justice would exist if they were sacrificed.” Slusarchuk v. Hoff, 346 F.3d
1178, 1181-82 (8th Cir. 2003) (quotation omitted). Henke has not alleged a substantive due
process claim because Officer Markham’s act of not accepting Henke’s offer to pay his bail in
cash at the scene of his arrest falls far below the required “conscious-shocking” standard.

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Declining to accept payment of bail at the time of arrest is not a violation of a fundamental right.
At the hearing, defense counsel stated that the SLMPD grants its officers discretion in whether or
not to accept payment of bail at the time of arrest. Based on the facts presented, it appears
Officer Markham decided against exercising this discretion, which is insufficient to state a viable
substantive due process claim.
If Henke’s allegations are construed as a procedural due process claim, the Complaint
still fails. A valid procedural due process claim first requires Henke to allege that the
government deprived him of his interest in life, liberty, or property, without sufficient process.
Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir. 1999). Next, the procedures attendant upon the
deprivation must be constitutionally sufficient. Kentucky Dept. of Corr. v. Thompson, 490 U.S.
454, 460 (1989). Henke does not challenge the validity of the warrant that instigated his arrest.
Rather, Henke appears to claim his rights were violated first when his offer to pay bail was
denied and second when his cash was converted to a check. Declining to accept cash for bail at
the time of arrest pursuant to a valid warrant is not an unconstitutional procedure. Additionally,
cash inventoried and returned in check form is not an unconstitutional procedure. See Mickelson
v. Cnty. of Ramsey, No. 13-CV-2911, 2014 WL 4232284 (D. Minn. Aug. 26, 2014) (holding that
Ramsey County did not violate any procedural due process right in charging a $25 booking fee
for confinement in its detention facilities and for changing cash into a check or a debit card upon
release). Accordingly, Henke has not stated a claim for procedural due process.
b. Equal Protection
Henke also alleges Markham violated his equal protection rights. For this claim to
survive, Henke must establish that he was treated differently from others similar situated to him.

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Johnson v. City of Minneapolis, 152 F.3d 859, 863 (8th Cir. 1998). Read broadly, Henke’s
Complaint attempts to demonstrate that he was treated differently by claiming that the policy of
the SLMPD is to release individuals on warrant stops if they have the bail amount in possession
at the time of arrest. However, Henke does not provide any reason for why he was singled out
for differential treatment and the Court is unable to identify a potentially unconstitutional reason.
As previously discussed, SLMPD officers possessed discretion in deciding whether to accept
payment of bail at the scene of arrest. Officer Markham’s refusal to grant Henke this option
does not state an Equal Protection claim. In addition, Henke does not plausibly allege that he
was treated differently by the Hennepin County Jail when his cash was converted to a check. At
the hearing, counsel for Hennepin County stated it was standard procedure to inventory cash and
release individuals with a check for that cash amount when released. Thus, Henke’s allegations
do not state a plausible equal protection claim.
2. Eighth Amendment
Next, Henke claims Eighth Amendment violations resulting from his arrest, ten hour
detention, and the cash to check conversion at the Hennepin County Jail. None of these claims
amount to an Eighth Amendment violation.
First, Markham’s actions at the time of arrest do not implicate the Eighth Amendment’s
protection against cruel and unusual punishment. However, the Fourth Amendment does protect
against excessive force claims at the time of arrest. Wilson v. Spain, 209 F.3d 713, 715-16 (8th
Cir. 2000). To plead a Fourth Amendment excessive force claim, Henke needs to plead facts
showing that Officer Markham used force that was not objectively reasonable given the
particular circumstances. Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009).

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Even if Henke’s allegations are read broadly and analyzed with the Fourth Amendment in mind,
Henke fails to plausibly plead a claim against Officer Markham. Henke’s Complaint is devoid
of any facts demonstrating that Markham’s actions were objectively unreasonable.
Next, Henke’s claims against the Hennepin County Jail and Sheriff Stanek must also be
dismissed. Protections against cruel and unusual punishment are only available to convicted
prisoners. Hott v. Hennepin Cnty., Minn., 260 F.3d 901, 905 (8th Cir. 2001). Here, as a pre-trial
detainee, the Eighth Amendment does not protect against the harm Henke alleges.
C. Civil Rights
Henke alleges a § 1983 claim against SLMPD Chief of Police Litsey for failing to
properly train and supervise Officer Markham. Chief Litsey is immune from suit unless Henke
can show a violation of a clearly established statutory or constitutional right. Harlow v.
Fitzgerald, 457 U.S. 800, 815 (2009). It is undisputed that transporting Henke to the Hennepin
County Jail in lieu of accepting his bail money did not violate an official procedure, much less a
clearly established constitutional right. Accordingly, dismissal of Henke’s civil rights claim is
warranted.
Finally, Henke alleges a 42 U.S.C. § 1986 complaint. While the form of this claim is
unclear, it appears Henke is actually alleging a 42 U.S.C. § 1985 complaint for conspiracy to
interfere with civil rights. This claim fails because Henke is required to plead facts that show the
conspiracy is “motivated by some racial, perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ action. Griffin v. Breckenridge, 403 U.S. 88,
102 (1971). Since Henke has not done so, this too must be dismissed.

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IV. CONCLUSION
The alleged violations are the product of a series of events that resulted in expense and
inconvenience to Henke. While Henke has not doubt experienced frustration and aggravation as
a result of what occurred, the events that transpired on September 11, 2014 did not result in any
federal civil rights or constitutional violations.
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Defendants South Lake Minnetonka Police Department, Bryan Litsey, and William
Markham’s Motion to Dismiss [Docket No. 7] is GRANTED.
2. Defendants Hennepin County Sheriff Department and Richard W. Stanek’s Motion to
Dismiss [Docket No. 12] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: January 6, 2015.

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