MacDonald Shimota et al v. Wegner et al

Filing 113

ORDER granting 89 Defendants' Motion for Summary Judgment; denying as moot 99 Defendants' Motion to Exclude Expert Testimony(Written Opinion) Signed by Chief Judge John R. Tunheim on 09/14/2017. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MICHELLE MACDONALD SHIMOTA,

Case No. 15-1590 (JRT/KMM)

Plaintiff,
v.
BOB WEGNER, CHRISTOPHER MELTON,
TIMOTHY GONDER, JON NAPPER, and
DAKOTA COUNTY,

MEMORANDUM OPINION
AND ORDER GRANTING
DEFENDANTS’ SUMMARY
JUDGMENT MOTION

Defendants.
Michael B. Padden, PADDEN & MCCOLLISTER PLLC, 8673 Eagle
Point Boulevard, Lake Elmo, MN 55042, for plaintiff.
Jeffrey A. Timmerman, DAKOTA COUNTY ATTORNEY’S OFFICE,
1560 Highway 55, Hastings, MN 55033, for defendants.

On March 25, 2015, plaintiff Michelle MacDonald Shimota (“MacDonald”)
commenced this action asserting a variety of constitutional and state law claims against
numerous defendants stemming from her arrest and detention at the Dakota County Jail
(the “Jail”) in September 2013. On May 29, 2016, the Court granted in part defendants’
motions to dismiss, leaving three claims remaining against defendants Dakota County,
Sergeant Christopher Melton, and Deputies Timothy Gonder, Jon Napper, and Bob
Wegner (together “Defendants”).
The remaining claims are a Fourteenth Amendment claim relating to the
conditions of MacDonald’s confinement at the Jail, a Fourth Amendment claim based on
the search of MacDonald’s digital camera, and a theft or unlawful taking claim based on

33

the alleged loss of MacDonald’s gold cross pendant. Defendants move for summary
judgment on all claims and also move to strike the report and proffered testimony of
Richard Lichten, a jail practice liability expert retained by MacDonald.
Based on the undisputed facts, MacDonald’s claims fail as a matter of law. First,
the Fourteenth Amendment claim fails because defendants have demonstrated that the
conditions of confinement furthered a legitimate government objective. Second, the
Fourth Amendment claim fails on qualified immunity grounds as it was not clearly
established that a warrant was required to search MacDonald’s camera.

Finally,

MacDonald’s civil theft claim fails as she has not established that any Defendant seized
or possessed the pendant or acted with wrongful intent. As a result, the Court will grant
Defendants’ motion for summary judgment and deny as moot Defendants’ motion to
strike.

DISCUSSION
I.

FACTUAL HISTORY 1
A.

Arrest

On the morning of September 12, 2013, MacDonald, an attorney, appeared in a
Dakota County Judicial Center courtroom to represent a client in a child custody hearing
before Minnesota District Judge David Knutson. (Aff. of Christopher Melton (“Melton
Aff.”), Ex. 1 (“Incident Report”) at 1, Mar. 2, 2017, Docket No. 95.) During a short
recess, MacDonald photographed Deputy Gonder inside the courtroom on a digital
1

The Court only discusses the facts relevant to the instant motion.

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camera.

(Aff. of Jeffrey A. Timmerman (“Timmerman Aff.”), Ex. 1 (“MacDonald

Dep.”) at 33:11-34:21, Mar. 2, 2017, Docket No. 92; id., Ex. 2 (“Gonder Dep.”) at 26:327:24.) Deputy Gonder told MacDonald she could not take photographs in the courtroom
and then confiscated the camera and gave it to his superior, Sergeant Melton. (Incident
Report at 1.)
Sergeant Melton explained what had occurred to Judge Knutson and requested
Judge Knutson’s permission to search the camera. (Id. at 1-2; Timmerman Aff., Ex. 3
(“Melton Dep.”) at 35:4-12.) Judge Knutson gave permission, and both Sergeant Melton
and Deputy Gonder viewed the contents of MacDonald’s camera. (Melton Dep. at 35:436:11; Gonder Dep. at 82:20-83:17.) After Sergeant Melton observed the photograph
MacDonald had taken of Deputy Gonder, he provided MacDonald with a copy of Minn.
Gen. R. Prac. 4.01, which prohibits taking pictures in any courtroom except for official
court record. (Incident Report at 2.) Sergeant Melton then told Judge Knutson that
MacDonald was guilty of contempt of court under Minn. Stat. § 588.20 and that she
would receive a ticket for the misdemeanor offense. (Id. at 2.)
During a court recess that morning, Sergeant Melton approached MacDonald and
asked her to accompany him so that he could issue her a ticket. (Melton Dep. at 16:5-12.)
Because MacDonald declined to come with him, he told her that she was under arrest.
(Id. at 16:5-12, 26:18-23.)

Sergeant Melton and Deputy Gonder then escorted

MacDonald to a “bailiff station holding area.” (Gonder Dep. 12:4-9.) Sergeant Melton
explained to MacDonald “at least fifteen times that she would be released once she gave

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[him] her full name, date of birth, and address,” but she refused to cooperate. (Incident
Report at 3.)
B.

Initial Detention & Return to Court

At the bailiff station, MacDonald surrendered her personal property, (Gonder Dep.
at 79:7-18, 83:18-23; Timmerman Aff., Ex. 5 (“Napper Dep.”) at 20:6-9), and Deputy
Napper photographed and inventoried it, (Aff. of Jon Napper (“Napper Aff.”) ¶ 2 &
Ex. 1, Mar. 2, 2017, Docket No. 97). A Dakota County official then handcuffed and
placed MacDonald in a holding cell. (MacDonald Dep. 59:9-16.)
Shortly thereafter, the courtroom clerk requested that MacDonald return to the
courtroom to continue the child custody trial. (Incident Report at 3.) When court
resumed, Sergeant Melton reiterated that MacDonald would be issued a citation and
released as soon as she provided her full legal name, address, and date of birth. (Id.) She
still did not provide the information. (Id.) Thus, when court concluded, Sergeant Melton
transported MacDonald to the jail to be booked for contempt of court and obstructing
legal process. (Id.)

C.

Overnight Detention

At the Jail, MacDonald did not respond to booking or medical screening questions.
(MacDonald Dep. at 140:5-141:18.) As a result, Jail staff placed her in one of the Jail’s
negative-pressure rooms, (Aff. of Farrel Byrd (“Byrd Aff.”) ¶¶ 2-5, Mar. 2, 2017, Docket
No. 94), which is a “single-occupant cell with a ventilation system that generates
negative pressure to allow air to flow into, but not escape from, the room,” (Aff. of
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Benjamin Verby (“Verby Aff.”) ¶ 3, Mar. 2, 2017, Docket No. 93). The following day,
MacDonald was released from custody around 4:20 p.m., (MacDonald Dep. at 105:1020), and in total, spent less than 26 hours in the Jail, (Verby Aff. ¶ 20).

II.

PROCEDURAL BACKGROUND
MacDonald filed this action on March 25, 2015, against Dakota County,

individual employees of Dakota County, and former Dakota County prosecutor Daniel
Fluegel and his law firm, Fluegel Law Firm P.A. (Compl., Mar. 25, 2015, Docket No. 1;
see also Am. Compl., May 5, 2015, Docket No. 20.) MacDonald brought twenty-two
claims, alleging violations of her rights under the First, Fourth, and Fourteenth
Amendments; corresponding state tort causes of action; and various state law claims.
(Am. Compl. ¶¶ 223-358.)
On March 29, 2016, the Court decided the Defendants’ motions to dismiss and
dismissed nearly all of MacDonald’s claims. Shimota v. Wegner, No. 15-1590, 2016 WL
1254240 (D. Minn. Mar. 29, 2016). Of note, the Court granted the Defendants’ motion to
dismiss MacDonald’s false arrest, false imprisonment, malicious prosecution, and
retaliatory prosecution claims because the officers had “at least arguable probable cause”
to arrest MacDonald for taking a photograph of Deputy Gonder in the courtroom. Id. at
*5-6. 2

2

The Court also dismissed MacDonald’s excessive force claim and state assault and
battery claims, which related to her removal from the courtroom, removal of her personal effects,
and placement in a wheelchair. Wegner, 2016 WL 1254240, at *7-8. Additionally, the Court
(Footnote continued on next page.)

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The Court, however, allowed four claims to remain. First, the Court found that,
accepting MacDonald’s factual allegations were true (as the Court must at the motion-todismiss stage), the Jail’s confinement conditions may have risen to the level of a
Fourteenth Amendment violation; but the Court noted Defendants could later provide
evidence challenging those allegations or establishing legitimate governmental
objectives.

Id. at *9-10.

Second, the Court rejected Defendants’ arguments that

MacDonald’s Fourth Amendment claim based on the search of her camera failed because
MacDonald lacked actual damages, there were exigent circumstances, or MacDonald
lacked reasonable expectation of privacy in her camera. Id. at *6-7. But the Court noted
that, because Defendants had arguable probable cause for the arrest, “at most,
MacDonald has alleged a separate claim solely for search of her camera for nominal
damages.” Id. at *7 n.10. Lastly, the Court allowed MacDonald’s theft and unlawful
taking claim based on the loss of her pendant to remain because Defendants did not move
to dismiss that claim on its merits. Id. at *12.
On March 2, 2017, Defendants moved for summary judgment on all remaining
claims, (Defs.’ Mot. for Summ. J., March 2, 2017, Docket No. 89), and also moved to
exclude the report and proffered testimony of Richard Lichten, a jail practice liability

___________________________
(Footnote continued.)

dismissed MacDonald’s equal protection claim, id. at *9; her federal conspiracy claims, id. at
*10; her Monell claim, id. at *11; her state-law claims of negligent and intentional inflictions of
emotional distress, id at *12; and Plaintiff Thomas G. Shimota’s loss of consortium claim, id. at
*13.

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expert retained by MacDonald, (Defs.’ Mot. to Exclude Expert Test., Mar. 2, 2017,
Docket No. 99).

DISCUSSION
I.

STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material

fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the
lawsuit, and a dispute is genuine if the evidence is such that it could lead a reasonable
jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A court considering a motion for summary judgment must view the facts in
the light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).

Summary judgment is appropriate if the

nonmoving party “fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “To defeat a motion
for summary judgment, a party may not rest upon allegations, but must produce probative
evidence sufficient to demonstrate a genuine issue [of material fact] for trial.” Davenport
v. Univ. of Ark. Bd. of Trs., 553 F.3d 1110, 1113 (8th Cir. 2009). Furthermore, if the nonmovant’s version of events “is blatantly contradicted by the record, so that no reasonable

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jury could believe it, a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

II.

FOURTEENTH AMENDMENT – CONDITIONS OF CONFINEMENT
Defendants first seek summary judgment on MacDonald’s individual-capacity

claim that the conditions of confinement at the Jail violated her Fourteenth Amendment
rights.

In response to Defendants’ motion, MacDonald states generally that her

experience at the Jail is “detailed throughout Plaintiff’s [attached] deposition.” (Pl.’s
Mem. in Opp’n at 3, Mar. 23, 2017, Docket No. 105.) MacDonald fails to cite to any
specific record evidence, and the only factual assertions she makes are that “she was
denied toilet paper, a mattress, and pillow in her cell.” (Id.) Merely inviting the Court to
pore through her entire deposition does not satisfy MacDonald’s obligation under Fed. R.
Civ. P. 56 to designate specific facts demonstrating a genuine controversy. See Crossley
v. Ga.-Pac. Corp., 355 F.3d 1112, 1114 (8th Cir. 2004).
Defendants do not dispute that MacDonald’s toilet paper and mattress were
removed from her cell and a pillow was not provided to her; instead, they argue that those
conditions did not violate her Fourteenth Amendment rights because they furthered
legitimate government objectives. Because MacDonald raised these three conditions and
Defendants do not dispute them, the Court will consider these facts as the basis for
MacDonald’s conditions-of-confinement claim even though she fails to provide proper
record citations; however, the Court will not address any of MacDonald’s other
allegations regarding her conditions of confinement made in her amended complaint

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because she did not raise them with specific record citations or legal argument in
response to Defendants’ motion. 3
The Court analyzes a pretrial detainee’s claims of conditions of confinement under
the due process clause of the Fourteenth Amendment. Morris v. Zefferi, 601 F.3d 805,
809 (8th Cir. 2010) (discussing Bell v. Wolfish, 441 U.S. 520 (1999)); Owens v. Scott Cty.
Jail, 328 F.3d 1026, 1027 (8th Cir. 2003). “The standard applicable to conditions of
confinement claims by pretrial detainees was enunciated in Bell v. Wolfish, 441 U.S. 520,
(1979).” Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996). The Supreme Court in
Bell held that “[a]bsent a showing of an expressed intent to punish on the part of
detention facility officials, that determination generally will turn on” whether “a
particular condition or restriction of pretrial detention is reasonably related to a legitimate

3

MacDonald previously alleged the following conditions of confinement: she was held in
a “near-freezing” cell; there were bright lights throughout the night; she did not have a blanket
and the guards taunted her with a blanket; there was an opening in her cell that allowed the male
guards to watch her if she went to the bathroom; the guards interrupted her throughout the night
making her fearful; and the guards told her that someone else had committed suicide and that
they saw a dead body. (Am. Compl. ¶¶ 101, 108-110, 113-14, 116, 119, 121-22.) In addition to
failing to cite to the record to support any of these allegations, (Pl.’s Mem. in Opp’n at 3-4), and
improperly arguing that the Jail staff “breached a professional standard of care,” (id.), many of
these assertions also fail because Defendants offered undisputed evidence that contradict some of
the claims and provided legitimate reasons justifying other conditions. Specifically, MacDonald
does nothing to challenge Defendants’ evidence showing that: the thermostat which controlled
her cell was “set at 70 degrees” and that the Jail staff could not adjust the thermostat, (Verby Aff.
¶¶ 5-6); that she was confined in a negative-pressure room purely out of concern for her safety
because she would not answer medical screening questions, (Byrd Aff. ¶¶ 2-5; Verby Aff. ¶ 4);
that the cell was continually illuminated by a light fixture for jail staff to observe whether its
occupants required medical attention, (Verby Aff. ¶ 7); that the cell had a concrete partition wall
in front of the toilet to provide her with privacy when going to the bathroom, (id. ¶ 10); and that
she was not allowed to make a telephone call because she prevented the Jail staff from
performing an orderly booking process, (id. ¶¶ 12, 18). (See Pl.’s Mem. in Opp’n at 3-4).

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governmental objective.” 441 U.S. at 538-39. “Not every disability imposed during
pretrial detention amounts to ‘punishment’” as “[l]oss of freedom of choice and privacy
are inherent incidents of confinement in such a facility.” Id. at 537.
As MacDonald does not assert or provide any evidence that the Jail staff expressed
intent to punish her, the Court must determine whether MacDonald’s lack of a mattress,
toilet paper, and bedding were reasonably related to legitimate governmental objectives.
MacDonald does nothing to challenge the record evidence suggesting that Jail staff
removed her cell mattress because she “crawled underneath it” and removed her toilet
paper because she “used it to wrap herself from head-to-toe, like a mummy.” (Aff. of
Timothy Gonder (“Gonder Aff.”) ¶¶ 2-4, Mar. 2, 2017, Docket No. 96.) The Court notes
that MacDonald’s behavior hindered the Jail from observing her well-being, which was
especially important because MacDonald did not answer medical screening questions.
(Verby Aff. ¶¶ 16-17). Because removing MacDonald’s mattress and toilet paper served
a legitimate purpose, the Court finds no Fourteenth Amendment violation based on those
actions. See Williams v. Delo, 49 F.3d 442, 445-46 (8th Cir. 1995) (noting “the legitimate
penological goals of preventing injury to the inmate, injury to corrections officials, and
damage to the facility”); Robinson v. Adams, No. 10-0013, 2010 WL 4942163, at *5
(E.D. Ark. Nov. 9, 2010) (granting summary judgment where plaintiff “refuse[d] to
acknowledge” that his own actions resulted in removal of mattress and other items),
adopted by 2010 WL 4942159 (E.D. Ark. Nov. 30, 2010).
MacDonald also does not dispute that she chose not to answer booking questions,
(MacDonald Dep. at 140:5-141:18), and she does not challenge Defendants’ evidence
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suggesting this was the reason that the Jail staff did not provide her with bedding. (Verby
Aff. ¶¶ 12, 18.) The Court finds that this is not a Fourteenth Amendment violation
because it furthered the Jail’s legitimate objective of maintaining an orderly booking
process. Kordecki v. Nobles, No. 93-1087, 1993 WL 533308, at *1 (7th Cir. Dec. 22,
1993) (holding pretrial detainee’s placement in isolation based on refusal to cooperate
with booking procedures was not arbitrary); Crace v. Efaw, No. 09-551, 2012 WL
3962799, at *8 (S.D. Ohio Sept. 10, 2012) (detention facilities have a “legitimate
governmental interest in maintaining an orderly booking process”).
Thus, because MacDonald fails to provide record evidence calling into question
Defendants’ asserted legitimate reasons for MacDonald’s confinement conditions, the
Court will grant the Defendants’ summary judgment motion on the Fourteenth
Amendment claim.

III.

FOURTH AMENDMENT – SEARCH OF CAMERA
Previously, the Court denied Defendants’ motion to dismiss MacDonald’s Fourth

Amendment claim based on the search of her camera against County Defendants in their
personal capacities. Wegner, 2016 WL 1254240, at *7, 15. Here, MacDonald does not
dispute that Sergeant Melton and Deputy Gonder were the only Defendants who viewed
the contents of her camera, (Melton Dep. at 35:4-36:11; Gonder Dep. at 82:20-83:17),

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and thus they are the only Defendants implicated by the individual-capacity claim for the
alleged Fourth Amendment violation. 4
Defendants argue that Sergeant Melton and Deputy Gonder are entitled to
qualified immunity because it was not clearly established that a warrant was required to
search MacDonald’s camera when the search occurred in September 2013.

“On

summary judgment, government officials possess qualified immunity unless (1) the facts
plaintiff has shown amount to a violation of a constitutional right, and (2) the right
violated was clearly established when the alleged misconduct occurred.” Williams v.
Herron, 687 F.3d 971, 974 (8th Cir. 2012). “A court may begin its analysis with either
prong.” Id.
The Court first notes that the Eighth Circuit has not addressed whether a warrant is
needed to search a digital camera when the search is incident to an arrest. See United
States v. Stringer, 739 F.3d 391, 396 (8th Cir. 2014) (declining to address constitutionality
of warrantless search of arrestee’s cell phone and digital camera). Moreover, other courts
have held that it was not clearly established around the time of the search (September
2013) that a warrant was required to search a camera incident to arrest. Schlossberg v.
Solesbee, 844 F. Supp. 2d 1165, 1171 (D. Or. 2012) (noting “that the law was not settled
regarding whether [the defendant] could search [a] camera as incidental to a valid

4

To the extent MacDonald still seeks to pursue this claim against Deputies Napper and
Wegner, (see Am. Compl. ¶¶ 224, 225(C)), it fails because there is no evidence that they were
personally involved in the search or seizure of MacDonald’s camera. Mayorga v. Missouri, 442
F.3d 1128, 1132 (8th Cir. 2006), (“[A plaintiff] must allege specific facts of personal involvement
in, or direct responsibility for, a deprivation of his [or her ]constitutional rights.”).

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arrest”); Hartman v. Walker, No. 13-355, 2015 WL 5470261, at *27 (E.D. Tex. Sept. 16,
2015) (holding not clearly established in May 2013 that a warrant was required to search
plaintiff’s pen camera following arrest); Am. News & Info. Servs., Inc. v. Gore, No. 122186, 2014 WL 4681936, at *9-10 (S.D. Cal. Sept. 18, 2014) (holding not clearly
established in 2012 that a warrant was required to search plaintiff’s video camera at the
time of arrest).
Additionally, Sergeant Melton only searched MacDonald’s camera after he
received Judge Knutson’s permission, which “show[s] the reasonableness of the action
taken.” E-Z Mart Stores, Inc. v. Kirksey, 885 F.2d 476, 478 (8th Cir. 1989); see also
Fitzgerald v. Bd. of Cty. Comm’rs, No. 07-101, 2010 WL 1410979, at *9 (W.D. Okla.
Apr. 2, 2010) (finding officers who acted in reliance on advice of judge were entitled to
qualified immunity on unlawful entry claim).
As it was not clearly established in September 2013 that a warrant was required to
search MacDonald’s camera incident to her arrest, the Court will grant Defendants’
summary judgment motion on MacDonald’s Fourth Amendment claim based on qualified
immunity.

IV.

THEFT AND UNLAWFUL TAKING
Lastly, MacDonald asserts a “theft/unlawful taking claim” against the individual

defendants and seeks to hold Dakota County vicariously liable. (Am. Compl. ¶¶ 354-56.)
As MacDonald has not provided what applicable law governs such a claim, (id.; see also

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Pl.’s Mem. in Opp’n at 5), the Court will construe this claim as a civil theft claim under
Minn. Stat. § 604.14.
The statute provides that “[a] person who steals personal property from another is
civilly liable to the owner of the property for its value when stolen plus punitive damages
of either $50 or up to 100 percent of its value when stolen, whichever is greater.” Minn.
Stat. § 604.14, subd. 1. Although the statute does not define the term “steals,” the
Minnesota Court of Appeals has stated the term “generally means that a person
wrongfully and surreptitiously takes another person’s property for the purpose of keeping
it or using it.” TCI Bus. Capital, Inc. v. Five Star Am. Die Casting, LLC, 890 N.W.2d
423, 431 (Minn. Ct. App. 2017) (discussing Minn. Stat. § 604.14). Thus, a civil theft
claim requires that a defendant wrongfully intend to “keep” or “use” the personal
property at issue. Id.
At the bailiff station, MacDonald was required to surrender her personal property
because she was under arrest and in custody. (Gonder Dep. at 79:7-18, 83:18-23; Napper
Dep. at 20:6-9.)

MacDonald claims she was wearing a gold cross pendant on her

necklace chain and that the pendant was misplaced during the inventory process.
(MacDonald Dep. at 67:14-22, 73:12-24.) MacDonald does not dispute that Deputy
Napper photographed and inventoried her personal property and that there is no gold
cross pendant in the photograph. (Napper Aff. ¶ 2 & Ex. 1.) Deputy Napper does not
recall seeing a pendant that day and states that had MacDonald been wearing one, it
would have been inventoried. (Napper Dep. at 43:7-44:15, Napper Aff. ¶ 3.) All of the
remaining individual defendants say that they never possessed her pendant, let alone lost
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or stole it. (Melton Aff. ¶ 3; Gonder Aff. ¶ 5; Aff. of Robert Wegner ¶ 2, Mar. 2, 2017,
Docket No. 98.) MacDonald only argues that “she had a gold cross pendant when she
was taken into custody, and it was never returned. This is obviously a matter for the fact
finder.” (Pl.’s Mem. in Opp’n at 5.)
However, MacDonald has not offered any evidence that anyone took her pendant
with the intent to use or keep it. In fact, she does not even know who allegedly lost or
stole her pendant. 5 Thus, based on the undisputed evidence, MacDonald has not
established that any of the individual defendants seized or possessed the pendant or acted
with wrongful intent to support a civil theft claim. See TCI Bus. Capital, 890 N.W.2d at
431 (affirming summary judgment on claim in the absence of evidence that defendant
took plaintiff’s property with “intent to use it or keep it”); Rachuy v. Pauly, Nos. A130393, A13-0394, 2014 WL 103388, at *3 (Minn. Ct. App. Jan. 13, 2014) (affirming
summary judgment in the absence of evidence that defendant possessed allegedly stolen
property).
Because MacDonald’s theft claim against any individual Defendant fails as a
matter of law, it necessarily follows that Dakota County cannot be held vicariously liable.
Minn. Stat. § 466.02 provides in relevant part that Dakota County is subject to liability
for torts “of its officers, employees and agents acting within the scope of their
employment or duties.” For vicarious liability to apply under § 466.02, “there must be,
first, an actor personally liable for the tort, and, second, the actor must be within the
5

She also acknowledges that the necklace chain, which she claims the pendant was on,
was returned to her upon her release. (MacDonald Dep. at 67:14-17.)

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scope of the employment by the employer.” Leaon v. Washington County, 397 N.W.2d
867, 874 (Minn. 1986).

Here, MacDonald failed to establish that any individual

Defendant is personally liable for the alleged theft.
Thus, as MacDonald failed to identify who stole her pendant and that any
Defendant had the wrongful intent to take or use the pendant, the Court will grant
Defendants’ summary judgment motion on MacDonald’s unlawful taking and theft claim.
Finally, because the Court will grant Defendants’ summary judgment on all of
MacDonald’s claims, the Court will deny as moot Defendants’ motion to exclude
Lichten’s testimony.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1.

Defendants’ Motion for Summary Judgment [Docket No. 89] is

GRANTED.
2.

Defendants’ Motion to Exclude Expert Testimony of Richard Lichten

[Docket No. 99] is DENIED as moot.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: September 14, 2017
at Minneapolis, Minnesota.

___________s/John R. Tunheim_______
JOHN R. TUNHEIM
Chief Judge
United States District Court

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