Scheffler v. McDonough et al
ORDER granting in part and denying in part 77 Motion for Summary Judgment; denying 85 Motion for Partial Summary Judgment. IT IS HEREBY ORDERED THAT: 1. Plaintiff's motion for partial summary judgment 85 is DENIED. 2. Defendants 9; motion for partial summary judgment 77 is GRANTED IN PART and DENIED IN PART as follows: a. Defendants' motion is GRANTED as to the following claims, and those claims are DISMISSED WITH PREJUDICE AND ON THE MERITS: i. Count III, insofar as it asserts a claim for failure to render first aid; ii. Counts VI, VII, VIII, IX, X, and XI, insofar as they are based on the actions of McDonough before he arrested Scheffler; and iii.Counts XIV, XV, XVI, and XVII. b. Defendants' motion is DENIED in all other respects. (Written Opinion) Signed by Judge Patrick J. Schiltz on August 23, 2017. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
TROY K. SCHEFFLER,
Case No. 15‐CV‐3707 (PJS/KMM)
in his individual capacity acting under
color of law as a Coon Rapids Police
in his individual capacity acting under
color of law as a Coon Rapids Police
CITY OF COON RAPIDS, MINNESOTA,
a government entity and political
subdivision of the State of Minnesota,
Peter J. Nickitas, PETER J. NICKITAS LAW OFFICE, L.L.C., and Paul
Applebaum, APPLEBAUM LAW FIRM, for plaintiff.
Ryan M. Zipf, LEAGUE OF MINNESOTA CITIES, for defendants.
Shortly after midnight on July 10, 2014, plaintiff Troy Scheffler approached
defendant Mark McDonough—a police officer who was sitting in a blacked‐out squad
car surveilling the scene of a possible crime—and accused McDonough of following
him. The two men got into an argument, and McDonough handcuffed, arrested, and
allegedly assaulted Scheffler. Scheffler contends that McDonough did not have
probable cause to arrest him and that McDonough used excessive force against him.
Scheffler should have brought two claims against McDonough under 42 U.S.C.
§ 1983: one for unlawful arrest and the other for excessive force. Instead, Scheffler filed
a 17‐count complaint, including not only claims for unlawful arrest and excessive force,
but 15 other claims that seem to have no real purpose. If the jury believes Scheffler’s
testimony, then his unlawful‐arrest and excessive‐force claims will allow him to recover
every penny to which he is entitled (including attorney’s fees and costs); the other
15 claims will result in no additional recovery. And if the jury does not believe
Scheffler’s testimony, then he is highly unlikely to be awarded damages on any of his
claims. Most likely, then, the 15 additional claims will accomplish nothing but to create
a great deal of needless work for the parties and the Court.
“This Court has repeatedly criticized the filing of ‘kitchen‐sink’ or ‘shotgun’
complaints—complaints in which a plaintiff brings every conceivable claim against
every conceivable defendant.” Gurman v. Metro Hous. & Redev. Auth., 842 F. Supp. 2d
1151, 1153 & n.2 (D. Minn. 2011) (collecting cases). One reason why kitchen‐sink
complaints are so often criticized is that they “unfairly burden defendants and courts”
by “shift[ing] onto the defendant and the court the burden of identifying the plaintiff’s
genuine claims and determining which of those claims might have legal support.” Id.
That is true in this case. Both sides have moved for partial summary judgment, and
thus the defendants and the Court must now trudge through 17 claims to separate the
wheat from the chaff.
A. July 10, 2014
Shortly after midnight on July 10, 2014, police officers employed by defendant
City of Coon Rapids (“Coon Rapids”) were dispatched to a car dealership based on a
report of a prowler or other disturbance. Zipf Aff. Ex. 1 at 16; McDonough Aff. Ex. 12.
Scheffler was biking home when he was passed by one or two of the squad cars that
had been dispatched to the scene. Zipf Aff. Ex. 1 at 76:2‐20; Scheffler Dep. 80:6‐81:10,
82:5‐8. The first squad car shined a light on Scheffler as it passed by him heading in the
opposite direction. Scheffler Dep. 80:6‐18. As Scheffler continued biking home, he
came upon a parked squad car that was blacked out and facing against traffic. Scheffler
Dep. 81:16‐82:12; see also McDonough Aff. Ex. 12. McDonough was alone in the car,
surveilling the car dealership in case a suspect tried to escape. Zipf. Aff. Ex. 1 at 16:4‐11;
McDonough Aff. Ex. 12; Scheffler Dep. 88:22‐24.
On seeing McDonough’s squad car, Scheffler called 911, told the dispatcher that
a police officer was following him and had stopped in front of him, and asked the
dispatcher to tell the police officer to leave. Zipf Aff. Ex. 1 at 29:9‐16; Scheffler
Dep. 82:16‐25. The dispatcher suggested that Scheffler approach the police officer and
ask him what he was doing. Zipf Aff. Ex. 1 at 30:9‐18; Scheffler Dep. 91:21‐92:9.
Scheffler followed the dispatcher’s advice and approached the passenger side of the
squad car to question McDonough through the open window. Scheffler Dep. 96‐97.
The 911 operator stayed on the line, and thus the encounter between Scheffler and
McDonough was recorded.1
As he reached the squad car, Scheffler asked McDonough: “Why are you here?”
Zipf Aff. Ex. 1 at 30:19‐23; Scheffler Dep. 97:5‐15. McDonough replied by asking
Scheffler what he was doing. Zipf Aff. Ex. 1 at 30:20; Scheffler Dep. 97:7‐15. Scheffler
responded that he was on his way home and minding his own business. Zipf Aff. Ex. 1
at 30:25; Scheffler Dep. 98:2‐7.
McDonough exited his squad car and asked Scheffler for identification. Zipf Aff.
Ex. 1 at 31:1‐2; Scheffler Dep. 97‐98. According to McDonough, Scheffler was
intoxicated and acting belligerent. McDonough Aff. Ex. 12; Zipf Aff. Ex. 1 at 22:11‐13,
24:17‐23. In fact, Scheffler had taken both Alprazolam (a generic version of Xanax) and
a sleeping pill earlier that day. Scheffler Dep. 76:10‐77:4, 132:12‐20. On the 911
recording, Scheffler sounds intoxicated.
The parties provided the Court with a recording of the 911 call, but not with a
transcript. Therefore, the Court relies on the transcript of a January 4, 2016 hearing in
Scheffler v. McDonough, Anoka County File No. 02‐CV‐15‐5963, at which hearing the
recording was played. The Court also relies on its own review of the recording.
Scheffler refused to provide any identification or tell McDonough what he
wanted. When McDonough asked “do you have an ID on you?,” Scheffler responded,
“doesn’t matter.” Zipf Aff. Ex. 7 at 2:31‐33. Scheffler’s response seemed to irritate
McDonough, who told Scheffler: “Okay, listen, there’s one of two ways this is going to
go. Which way do you want it to go? Let me see your ID.” Zipf Aff. Ex. 7 at 2:33‐39.
After some more back and forth, McDonough asked Scheffler for his name, and
Scheffler answered, “I don’t have to respond to that.” Zipf Aff. Ex. 1 at 31:8‐19; Zipf
Aff. Ex. 7 at 2:39‐3:22. McDonough replied, “Well, then get the fuck out of here then.”
Zipf Aff. Ex. 1 at 31:20; Zipf Aff. Ex. 7 at 3:23‐24. Scheffler refused to leave, but instead
asked that McDonough’s supervisor be called to the scene. Zipf Aff. Ex. 1 at 31:21.
McDonough responded, “Sure.” Zipf Aff. Ex. 1 at 31:22; Zipf Aff. Ex. 7 at 3:29‐32.
McDonough continued: “Here’s what I am going to do. I am going to put you over
here and put your hands behind you. . . .” Zipf Aff. Ex. 7 at 3:34‐37. Scheffler asked if
he was being arrested, and McDonough responded by again ordering Scheffler to put
his hands behind his back. Zipf Ex. 7 at 3:37‐41. Scheffler then asked why he was
getting arrested, and, according to Scheffler, McDonough responded: “For being a
fuck.” (The 911 recording is not clear.) Zipf Aff. Ex. 1 at 32:5; Scheffler Dep. 105:20‐22;
see also Zipf Aff. Ex. 7 at 3:42‐48.
At this point, the 911 recording captures what sounds like a physical altercation
between Scheffler and McDonough, but their words are garbled, and their testimony
about what happened conflicts. McDonough can be heard telling Scheffler—over and
over again—to give McDonough his “other hand.” Zipf Aff. Ex. 7 at 3:50‐59.
McDonough says that Scheffler was flailing his arms and resisting being handcuffed.
McDonough Aff. Ex. 12. Scheffler denies that he resisted handcuffing.
The parties agree that Scheffler was then taken to the ground, but the parties
dispute how. McDonough says that, because Scheffler was resisting handcuffing,
McDonough swept Scheffler’s legs from under him to bring Scheffler to the ground.
McDonough Aff. Ex. 12. McDonough maintains that, even after being taken to the
ground, Scheffler continued to resist handcuffing, so McDonough called for assistance.
McDonough Aff. Ex. 12; see also Zipf Aff. Ex. 1 at 33:3‐5. Defendant Joe Price—who, like
McDonough, was a Coon Rapids police officer—responded to McDonough’s call.
When Price arrived, he observed McDonough and Scheffler struggling on the
ground. Price Aff. Ex. 13. Price states that he saw one handcuff on Scheffler’s left hand
and McDonough attempting to handcuff Scheffler’s right hand. Price Aff. Ex. 13. Price
then placed his right knee on Scheffler’s shoulder in order to assist McDonough in
getting a handcuff on Scheffler’s right hand. Price Aff. Ex. 13. The officers further
allege that, even after being handcuffed, Scheffler continued to resist, so the officers
held him down and checked him for weapons. Price Aff. Ex. 13. McDonough testified
that he did not strike Scheffler. Zipf. Aff. Ex. 1 at 23:9‐13; 24:8‐10.
Scheffler tells a very different story. According to Scheffler, McDonough shoved
Scheffler off his bike and onto the ground, knocking the wind out of him. Scheffler
Dep. 105:14‐25. Scheffler admits that McDonough asked for Scheffler’s “other hand.”
Scheffler Dep. 106:25‐107:3. But, according to Scheffler, McDonough was at that point
trying to grab Scheffler’s cell phone, which he was holding in that “other hand.”
According to Scheffler, he readily complied with McDonough’s request, saying “it’s
right here.” Scheffler Dep. 107:4‐8, 107:20‐108:7. Scheffler testified that, after getting
Scheffler’s cell phone, McDonough handcuffed Scheffler, dragged him up against the
rear tire of the squad car, and repeatedly banged his head against the tire while
interrogating him. Scheffler Dep. 111:24‐112:13. McDonough denies Scheffler’s
allegations, but the 911 recording seems consistent with Scheffler’s account:
You got an i.d. [on] you? I said do you
have an i.d.? You got an i.d.?
Do you have an i.d.? Do you?
Answer me. That’s what you do. What’s your name?
Do you remember your name yet?
Hmm? Do you remember your name yet? Hmm?
. . . .
Zipf Aff. Ex. 7 at 4:40‐5:05. Scheffler testified that Price not only watched McDonough
assault him, but cheered McDonough on. Scheffler Dep. 109:2‐8, 112:14‐23.
Scheffler claims that he was eventually knocked unconscious. Scheffler
Dep. 115:18. The officers dispute this, and say that not only was Scheffler conscious at
all times, but he continued to be belligerent. McDonough Aff. Ex. 12; Price Aff. Ex. 13.
A squad video captured a conversation between McDonough and another officer
that took place shortly after Scheffler was handcuffed and placed in the squad car. See
Nickitas Decl. Ex. C; Zipf Aff. Ex. 1 at 38:9‐22.2 On the video, McDonough is heard
saying that Scheffler is “fucking drunk as shit” and referring to Scheffler as “fuck face”
and as an “asshole.” Zipf Aff. Ex. 1 at 38:12‐16; Nickitas Decl. Ex. C.
The parties provided the Court with a recording of this conversation, but not
with a transcript. Therefore, the Court again relies on the transcript of the January 4,
2016 hearing in Scheffler v. McDonough, Anoka County File No. 02‐CV‐15‐5963, as well
as the Court’s own review of the recording.
McDonough cited Scheffler for obstructing the legal process in violation of Minn.
Stat. § 609.50, subd. 1(2), Zipf Aff. Ex. 10, and transported Scheffler to the Anoka
County Jail at approximately 1:15 am, Zipf Aff. Ex. 1 at 41:8‐12; Scheffler Dep. 124:23‐
125:1. No medical care was provided to Scheffler at the scene. Scheffler Dep. 129:20‐
130:16. Scheffler says that, while he was in jail, he requested a nurse but was not
provided one. Scheffler Dep. 240:15‐241:5.
Scheffler was released from jail at about 2:00 pm on July 10, 2014 and went to an
urgent care facility at about 6:15 pm complaining of pain and dizziness. Scheffler
Dep. 133:1‐6, 144:3‐13; Nickitas Ex. J. The doctor diagnosed him with a concussion and
noted scratches and marks on his head and body. Nickitas Decl. Ex. J. The next day,
Scheffler submitted a request to Coon Rapids under the Minnesota Government Data
Practices Act (“MGDPA”), seeking information regarding his arrest. Scheffler
B. August 22, 2014
On August 22, 2014, McDonough attended a hearing at the Anoka County
Courthouse in connection with his divorce proceedings. Zipf Aff. Ex. 1 at 42:23‐43:4; see
also Nickitas Decl. Ex. K. The hearing had nothing to do with his work as a police
officer—and, obviously, nothing to do with Scheffler. Scheffler nonetheless decided to
show up at the hearing. Zipf Aff. Ex. 1 at 43:2‐4. McDonough says that he perceived
Scheffler’s presence at his divorce hearing as threatening and believed that Scheffler
crossed a line by intruding into the personal life of a police officer. Zipf Aff. Ex. 1
at 70:7‐17. McDonough glanced towards Scheffler, and Scheffler looked McDonough in
the eye and smiled—something that McDonough perceived as threatening. Zipf Aff.
Ex. 1 at 70:25‐71:10. McDonough consequently told his attorney that he felt threatened
by Scheffler’s presence, and McDonough’s attorney asked the judge to have Scheffler
removed from the courtroom. Zipf Aff. Ex. 1 at 46:5‐8; Nickitas Decl. Ex. K at 4:5‐15.
Scheffler interrupted the hearing to object to being removed, and he was allowed to
remain in the courtroom. See Nickitas Decl. Ex. K at 4:16‐24. Scheffler later interrupted
the proceedings a second time and sought to tell the Court and McDonough’s ex‐wife’s
attorney why he was there. Nickitas Decl. Ex. K at 9:3‐25.
Following the hearing, Scheffler approached McDonough in the hallway, and
McDonough told him to stay away. Zipf Aff. Ex. 1 at 43:13‐15, 44:23‐45:3. Scheffler was
with another individual at the time, and McDonough felt outnumbered and frightened.
Zipf Aff. Ex. 1 at 70:7‐24.
McDonough told his supervisor, Captain Paul Ireland, about Scheffler’s presence
at the divorce hearing because McDonough feared for his safety and the safety of his
family. Zipf Aff. Ex. 1 at 44:2‐13; Ireland Dep. 58:16‐59:5. Captain Ireland, thinking that
it was troubling for a defendant to intrude into an arresting officer’s personal life,
contacted the Anoka Police Department because the courthouse was within its
jurisdiction. Ireland Dep. 59:23‐60:17, 64:12‐14; Nolan Dep. 36:22‐37:4. Captain Scott
Nolan of the Anoka Police Department then called McDonough and interviewed him
about what had happened at the divorce proceeding. Nolan Dep. 37‐40. During that
call, McDonough again expressed concern for his own safety and the safety of his
family. Nolan Dep. 40:21‐41:5, 71:9‐72:7; Zipf Ex. 1 at 45:19‐46:4. Nolan testified that
neither McDonough nor anyone from Coon Rapids attempted to influence the way that
Anoka handled the situation. Nolan Dep. 72:8‐14.
Captain Ireland also reported the incident to Coon Rapids City Attorney David
Brodie. Brodie Dep. 7:9‐17. Brodie then successfully sought an order prohibiting
Scheffler from having further contact with McDonough. Brodie Dep. 10‐18. Brodie did
not communicate with McDonough about either the incident or the no‐contact order.
Brodie Dep. 9:12‐17, 14:8‐17. The underlying charges against Scheffler were dismissed
on October 31, 2014, and the no‐contact order was vacated upon dismissal of the
charges. Nickitas Decl. Exs. N, O.
A. Standard of Review
Summary judgment is warranted “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). A dispute over a fact is “material” only if its resolution
“might affect the outcome of the suit under the governing [substantive] law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. “The evidence of the non‐movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Id. at 255.
B. Unlawful Detention and Arrest
Scheffler brings six claims challenging his detention and arrest. Two of the
claims (Counts VI and VII) are brought against McDonough under § 1983 and allege
that McDonough violated Scheffler’s rights under the Fourth Amendment. Four of the
claims are brought under the common law of Minnesota: false‐arrest claims against
McDonough (Count VIII) and Coon Rapids (Count IX) and false‐imprisonment claims
against McDonough (Count X) and Coon Rapids (Count XI). Both Scheffler and the
defendants seek summary judgment on these claims.
In moving for summary judgment, defendants argue that the federal claims are
barred by the doctrine of qualified immunity and the state claims are barred by the
doctrine of official immunity.3 At oral argument, both sides agreed that, under the
“Under Minnesota law, official immunity protects police officers engaged in law
enforcement efforts unless they act with subjective malice.” Wertish v. Krueger, 433 F.3d
1062, 1067 (8th Cir. 2006). “Subjective malice” is found where “the official has
circumstances of this case, if the defendants have qualified immunity, they also have
official immunity—and if they do not have qualified immunity, they also do not have
official immunity. Thus the Court will analyze only the issue of qualified immunity.
Qualified immunity protects a police officer from personal liability in a § 1983
action unless the officer’s conduct violated a clearly established constitutional or
statutory right. Winslow v. Smith, 696 F.3d 716, 730 (8th Cir. 2012). Whether an officer is
entitled to qualified immunity depends on two questions: “‘(1) whether the facts shown
by the plaintiff make out a violation of a constitutional or statutory right, and
(2) whether that right was clearly established at the time of the defendant’s alleged
misconduct.’” Id. at 730‐31 (quoting Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th
Cir. 2009)). A court may address the questions in any order, but the officer will be
found immune unless both questions are answered affirmatively. Id. at 731. When a
party moves for summary judgment on the ground of qualified immunity, “‘[t]he party
asserting immunity always has the burden to establish the relevant predicate facts, and
at the summary judgment stage, the nonmoving party is given the benefit of all
reasonable inferences.’” Id. at 730 (quoting White v. McKinley, 519 F.3d 806, 813 (8th Cir.
intentionally committed an act that he or she had reason to believe is prohibited.” State
by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994).
1. Before the Arrest
It is not clear whether Scheffler alleges that McDonough acted unlawfully before
attempting to handcuff Scheffler.4 It is clear, however, that Scheffler alleges that
McDonough acted unlawfully when he attempted to place handcuffs on Scheffler.
Under the Fourth Amendment, officers may “conduct a brief investigative stop
when they have reasonable, articulable suspicion that a person is committing or is about
to commit a crime.” United States v. Horton, 611 F.3d 936, 940 (8th Cir. 2010). The
officers must be able to identify “specific, articulable facts” that justify the stop. Id.
Whether the officers had reasonable suspicion to conduct a stop is determined by the
totality of the circumstances. Id.
After a suspect is lawfully stopped, an officer may in some circumstances
conduct a pat‐down search for weapons. Id. at 940‐41. To justify the search, the officer
must have reasonable, articulable suspicion that the suspect is armed and dangerous.
Id. The officer need not know for certain that the suspect is armed; instead, a search is
permitted “if a ‘reasonably prudent man in the circumstances would be warranted in
Even if Scheffler were making such a claim, it would be meritless. Scheffler
approached McDonough and engaged him in conversation. Until the point at which
McDonough attempted to place handcuffs on Scheffler, there was no seizure of
Scheffler within the meaning of the Fourth Amendment. Cf. United States v. Dortch,
No. 16‐3178, 2017 WL 3567825, at *2 (8th Cir. Aug. 18, 2017) (officer did not seize
defendant by approaching him and asking why he was standing in the road and
whether he had a gun).
the belief that his safety or that of others was in danger.’” Id. at 941 (quoting Terry v.
Ohio, 392 U.S. 1, 27 (1968)). Officers may also place a suspect in handcuffs if doing so is
“reasonably necessary to protect their personal safety and to maintain the status quo
during the stop.” United States v. Martinez, 462 F.3d 903, 907 (8th Cir. 2006); see also
Bennett v. City of Eastpointe, 410 F.3d 810, 836 (6th Cir. 2005) (“[F]or the use of handcuffs
during a Terry stop, the Fourth Amendment 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.”).
One additional source of authority to detain citizens must be noted. Police
officers perform “community caretaking functions” that are “totally divorced from the
detection, investigation, or acquisition of evidence relating to the violation of a criminal
statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973). A police officer acts as a
community caretaker when he acts to “help those in danger.” United States v. Quezada,
448 F.3d 1005, 1007 (8th Cir. 2006). The Eighth Circuit has long “recognized that such a
‘community caretaker’ classification may justify noninvestigatory searches and seizures
in certain limited situations.” United States v. Smith, 820 F.3d 356, 360 (8th Cir. 2016)
(quoting United States v. Harris, 747 F.3d 1013, 1017 (8th Cir. 2014) (compiling cases that
have applied the community caretaker doctrine to non‐investigatory seizures)).
Minnesota has codified some of the community‐caretaking responsibilities of
police officers at Minn. Stat. § 253B.05, subd. 2(a), which authorizes a police officer to
“take a person into custody and transport the person to a licensed physician or
treatment facility if the officer has reason to believe . . . that the person is mentally ill or
developmentally disabled and in danger of injuring self or others if not immediately
detained.” The statute also authorizes a police officer to “take a person who is believed
to be chemically dependent or is intoxicated in public into custody and transport the
person to a treatment facility.” Id. If such a person “is not in danger of causing
self‐harm or harm to any person or property,” the statute authorizes the police officer to
“transport the person home” instead of to a treatment facility. Id.
The Court finds that McDonough is entitled to qualified immunity for all of his
actions—including his attempt to handcuff Scheffler—up to the point at which he
arrested Scheffler. McDonough was sitting alone in a blacked‐out police car after
midnight when Scheffler suddenly appeared and, out of the blue, demanded to know
what McDonough was doing. (Although Scheffler was following the advice of the
911 dispatcher, McDonough did not know that.) At the time, McDonough was
surveilling an active crime scene. Scheffler’s speech was slurred, and he was having
difficulty putting his thoughts into words. Scheffler bizarrely asked McDonough why
he had been following Scheffler. Scheffler refused to give his name, refused to produce
identification, and was generally combative. After McDonough told Scheffler to “get
the fuck out of here,” Scheffler refused to leave, thus continuing to interfere with
McDonough’s attempts to surveil a crime scene.
Under these circumstances, a reasonable officer in McDonough’s position could
have had concerns for his own safety, could have believed that Scheffler was intoxicated
or mentally ill, and could have suspected Scheffler of having some connection to
criminal activity at the car dealership. Moreover, a reasonable officer in McDonough’s
position could have concluded that Scheffler was interfering with his surveillance and
would not let McDonough return to his work. Thus, a reasonable officer could have
concluded that it would not have violated clearly established law to question Scheffler,
to ask him to identify himself, and to order him to leave the scene—and, when Scheffler
refused to leave the scene, to place him in handcuffs in order to immobilize him until he
could be removed and keep the officer safe.
In arguing to the contrary, Scheffler again and again points to evidence that
McDonough was not in fact concerned for his own safety, that McDonough was not in
fact concerned about Scheffler’s well‐being, and that McDonough did not in fact suspect
Scheffler of being involved in criminal activity. All of this may be true. But “[q]ualified
immunity is an affirmative defense governed by an objective standard in which ‘the
defendant’s subjective intent is simply irrelevant.’” Jackson v. Gutzmer, No. 16‐2184,
2017 WL 3426436, at *5 (8th Cir. Aug. 10, 2017) (quoting Crawford‐El v. Britton, 523 U.S.
574, 588 (1998)). The critical question is not what motivated McDonough, but whether a
hypothetical reasonable officer, under the same circumstances, could have believed that
engaging in the challenged actions would not violate clearly established law.
For these reasons, Counts VI, VII, VIII, IX, X, and XI are dismissed insofar as they
are based on the actions of McDonough before he arrested Scheffler.
2. The Arrest
Scheffler was arrested for obstructing the legal process in violation of Minn. Stat.
§ 609.50, subd. 1(2). “A warrantless arrest is consistent with the Fourth Amendment if it
is supported by probable cause, and an officer is entitled to qualified immunity if there
is at least ‘arguable probable cause.’” Borgman v. Kedley, 646 F.3d 518, 522‐23 (8th Cir.
2011) (quoting Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005)). A law
enforcement officer has probable cause “when the totality of the circumstances at the
time of the arrest ‘are sufficient to lead a reasonable person to believe that the defendant
has committed or is committing an offense.’” Id. at 523 (quoting Fisher v. Wal‐Mart
Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010)). If an officer arrests a suspect under the
mistaken belief that there is probable cause, arguable probable cause exists “if the
mistake is ‘objectively reasonable.’” Id. (quoting Amrine v. Brooks, 522 F.3d 823, 832
(8th Cir. 2008)).
Here, McDonough argues that he had probable cause—or, at the very least,
arguable probable cause—because Scheffler obstructed the legal process by physically
resisting McDonough’s attempts to handcuff him. The parties also agree—consistent
with the case law—that a suspect who physically resists a police officer’s attempt to
handcuff him obstructs the legal process, even if the handcuffing itself is unlawful. See
Hill v. Scott, 349 F.3d 1068, 1074 (8th Cir. 2003); State v. Wick, 331 N.W.2d 769, 771 (Minn.
1983); In re Burns, 284 N.W.2d 359, 360 (Minn. 1979).
The problem for McDonough is that Scheffler adamantly denies that he resisted
McDonough’s attempts to handcuff him. Although the 911 recording appears to
support McDonough’s version—he tells Scheffler at least three times to put his hands
behind his back, and then tells him at least four times to “give me your other
hand”—the matter is not clear. According to Scheffler, McDonough was trying to take
Scheffler’s phone away from him, and that accounts for McDonough’s demands to
“give me your other hand.” (It does not, however, account for McDonough’s preceding
demands to “put your hands behind your back.”) Scheffler says that he gave his cell
phone to McDonough as requested (at the point where Scheffler is heard saying “it’s
right here”)—and Scheffler insists that he no way resisted the handcuffing. (Scheffler
points out that, on the 911 recording, he is heard telling McDonough “I’m not resisting,”
and McDonough is heard responding “I know.”)
Under the circumstances, the Court cannot grant summary judgment to either
side on Scheffler’s claims challenging the lawfulness of his arrest. If Scheffler did
physically resist handcuffing, the arrest was lawful, as McDonough had probable cause
to conclude that Scheffler obstructed the legal process. And if Scheffler did not
physically resist handcuffing, the arrest was not lawful, as McDonough did not have
probable cause to conclude that Scheffler obstructed the legal process, and as
McDonough has not pointed to any other justification for arresting Scheffler. This issue
must be decided by a jury. See Kukla v. Hulm, 310 F.3d 1046, 1049 (8th Cir. 2002) (“[I]f
the arrestee challenges the officer’s description of the facts and presents a factual
account that would not permit a reasonable officer to make an arrest, then there is a
material factual dispute precluding summary judgment.”); Gainor v. Rogers, 973 F.2d
1379, 1385 (8th Cir. 1992) (“[W]here there are genuine issues of material fact
surrounding an arrestee’s conduct it is impossible for the court to determine, as a matter
of law, what predicate facts exist to decide whether or not the officer’s conduct clearly
violated established law.”).
C. Excessive Force
Scheffler brings four claims arising out of McDonough’s use of force in the
course of handcuffing and detaining him. Scheffler brings an excessive‐force claim
under the Fourth Amendment (Count II) and a common‐law battery claim under
Minnesota law (Count IV) against McDonough; a claim against Price for not intervening
and protecting Scheffler against McDonough’s excessive force (Count III)5; and a claim
seeking to hold Coon Rapids liable for McDonough’s battery (Count V). Scheffler
moves for summary judgment on these claims, arguing that McDonough beat him
severely and that Price egged McDonough on, and thus that both officers (and Coon
Rapids) are liable to him.
The problem for Scheffler is that, although the 911 recording appears to support
his allegations, McDonough and Price adamantly deny that McDonough beat Scheffler
in the manner that Scheffler alleges. Instead, McDonough and Price say that they used
only the minimum force necessary to get the handcuffs on Scheffler—who, they say,
physically resisted their efforts. The officers specifically deny that McDonough struck
Scheffler or banged his head against a tire, as Scheffler alleges. Given that the parties
sharply dispute whether Scheffler physically resisted handcuffing and what force was
used against him, the issue of excessive force must be decided by a jury.
In Count I of his complaint, Scheffler alleges that he was exercising his First
Amendment rights when he challenged McDonough and asked him to have a
supervisor come to the scene. Scheffler further alleges that McDonough arrested and
A police officer may be held liable for failing to prevent another police officer
from using excessive force. See Nance v. Sammis, 586 F.3d 604, 612 (8th Cir. 2009).
assaulted him in retaliation for his “peaceful exercise of free speech critical of the law
enforcement officer, McDonough . . .” Compl. ¶ 95. Scheffler moves for summary
judgment on this claim.
Scheffler’s claim is similar to the claim brought by the plaintiff in Peterson v.
Kopp, 754 F.3d 594 (8th Cir. 2014). In that case, the plaintiff alleged that a public‐transit
officer arrested and pepper sprayed him in retaliation for his being critical of the officer
and asking for the officer’s badge number. The Eighth Circuit described the applicable
law as follows:
“To establish a First Amendment retaliation claim under 42
U.S.C. § 1983, the plaintiff must show (1) he engaged in a
protected activity, (2) the government official took adverse
action against him that would chill a person of ordinary
firmness from continuing in the activity, and (3) the adverse
action was motivated at least in part by the exercise of the
protected activity.” Revels v. Vincenz, 382 F.3d 870, 876
(8th Cir. 2004) (citing Naucke v. City of Park Hills, 284 F.3d
923, 927‐28 (8th Cir. 2002)). Under the third prong, a
plaintiff must show that the retaliatory motive was a
“substantial factor” or “but‐for cause” of the adverse action.
Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir.
2010). In other words, the plaintiff must show he was
“singled out because of [his] exercise of constitutional
rights.” Id. (quotation omitted); see also Hartman, 547 U.S. at
256 (“[W]hen nonretaliatory grounds are in fact insufficient
to provoke the adverse consequences, we have held that
retaliation is subject to recovery as the but‐for cause of
official action offending the Constitution.”).
Peterson, 754 F.3d at 602. The Eighth Circuit added that, when the alleged retaliation
takes the form of an arrest, “we have identified a fourth prong: lack of probable cause or
arguable probable cause.” Id.
The parties do not dispute that Scheffler engaged in protected activity, nor do the
parties dispute that being arrested and being battered in the way claimed by Scheffler
“would chill a person of ordinary firmness from continuing in the activity.” Id. But the
parties dispute whether McDonough had arguable probable cause for arresting
Scheffler—a dispute that turns on whether Scheffler physically resisted McDonough’s
efforts to handcuff him. The parties also dispute whether McDonough arrested
Scheffler in retaliation for his protected activity. The parties also dispute exactly what
force McDonough used against Scheffler. And the parties dispute whether McDonough
used that force in an effort to overcome physical resistance to being handcuffed or
instead to retaliate for protected activity. Because so many material facts are in dispute,
the Court cannot grant summary judgment to Scheffler on this claim.
E. Failure to Provide Medical Care
In Count III, Scheffler alleges that McDonough and Price failed to provide
medical care to Scheffler after he was injured by McDonough. Compl. ¶ 113. For the
reasons stated at oral argument, the Court grants summary judgment to defendants on
this claim. To briefly recap:
First, Scheffler has provided no evidence that McDonough or Price “had actual
knowledge that failing to provide [Scheffler] immediate medical treatment posed a
substantial risk of serious harm.” Carpenter v. Gage, 686 F.3d 644, 651 (8th Cir. 2012).
Second, Scheffler has provided no evidence that McDonough or Price acted with “‘a
mental state akin to criminal recklessness’” when they did not get medical help for him,
particularly given that Scheffler was turned over to jail authorities within an hour after
being injured. Thompson v. King, 730 F.3d 742, 746‐47 (8th Cir. 2013) (quoting Vaughn v.
Gray, 557 F.3d 904, 908 (8th Cir. 2009)). And third, Scheffler has admitted that he has no
evidence that his injuries—cuts, bruises, and a concussion—were exacerbated in any
way by the officers’ alleged indifference to his medical needs. See Laughlin v. Schriro,
430 F.3d 927, 929 (8th Cir. 2005) (stating that a plaintiff “must place verifying medical
evidence in the record to establish the detrimental effect of delay in medical treatment”
in order to withstand summary judgment (quoting Crowley v. Hedgepeth, 109 F.3d 500,
502 (8th Cir. 1997))).
F. Monell Claim
In Count XVII, Scheffler seeks to hold Coon Rapids liable under Monell v.
Department of Social Services, City of New York, 436 U.S. 658 (1978). To succeed on his
Monell claim, Scheffler must prove that Coon Rapids adopted some policy, custom, or
practice, and that the policy, custom, or practice was the moving force behind a
violation of Scheffler’s federal rights. Id. at 694.
To establish a “custom” or “practice” sufficient to support a Monell claim,
Scheffler must demonstrate three things:
The existence of a continuing, widespread, persistent
pattern of unconstitutional misconduct by the
governmental entity’s employees;
Deliberate indifference to or tacit authorization of
such conduct by the governmental entity’s
policymaking officials after notice to the officials of
that misconduct; and
[Injury to Scheffler] by acts pursuant to the
governmental entity’s custom, i.e., [proof] that the
custom was the moving force behind the
Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (quoting Jane Doe A ex rel. Jane
Doe B v. Special Sch. Dist. of St. Louis Cty., 901 F.2d 642, 646 (8th Cir. 1990)). A single
occurrence is generally not sufficient to show a policy, custom, or practice. Ulrich v.
Pope Cty., 715 F.3d 1054, 1061 (8th Cir. 2013).
In support of his Monell claim, Scheffler points to three things:
First, Scheffler alleges that, in the course of unrelated litigation with Coon
Rapids,6 he received falsified lien documents from the city. ECF No. 88 at 39‐40. He
Scheffler is one of Minnesota’s most prolific litigants, having brought two dozen
also alleges that, in his pursuit of a no‐contact order, Captain Ireland falsely stated that
Scheffler had filed reports against McDonough and had made “multiple requests for
access on McDonough.” Compl. ¶¶ 168‐69. These allegations fall far short of
establishing a “continuing, widespread, persistent pattern of unconstitutional conduct”
that was known and tolerated by policymaking officials. Moreover, because Scheffler
alleges that Captain Ireland made his false report on August 29, 2014, Compl. ¶ 168, the
false report could not have been the “moving force” behind the events of July 10, 2014.
Second, Scheffler argues that Coon Rapids ratified McDonough’s and Price’s
misconduct by failing to discipline them. Of course, this, too, occurred after the events
of July 10, 2014, and thus could not have been the “moving force” behind those events.
And the fact that Coon Rapids did not discipline McDonough and Price falls far short of
establishing that, prior to July 10, 2014, McDonough and Price— or anyone else—had
engaged in a “continuing, widespread, persistent pattern of unconstitutional conduct”
that was known and tolerated by policymaking officials. If a municipality’s decision
not to discipline police officers accused of misconduct was sufficient to establish Monell
liability, then such liability would be the rule rather than the rare exception.
federal lawsuits in the past eight years or so, and having been involved in a number of
other criminal and civil proceedings in state court.
Finally, Scheffler claims that he is aware of other unconstitutional actions by
Coon Rapids police officers. The only such action that Scheffler specifically describes
occurred in September 2012, when four police officers prevented a suicidal citizen from
jumping off a bridge. Compl. ¶ 172. According to Scheffler, these officers acted
unconstitutionally because a video of the incident “showed the officers tase the would‐
be suicide and strike the would‐be suicide, when the individual was not a threat to the
officers.” Id. Putting aside the fact that there is no evidence that the officers acted
unconstitutionally in saving the citizen’s life—conduct for which they received
commendations—”[a] single incident normally does not suffice to prove the existence of
a municipal custom.” Mettler, 165 F.3d at 1205.
In sum, the evidence in the record comes nowhere near establishing a continuing,
widespread, and persistent pattern of unconstitutional misconduct that was known and
tolerated by Coon Rapids and that was a moving force behind the events of July 10,
2014. The Court therefore grants Coon Rapids’s motion for summary judgment on
G. Malicious Prosecution
Scheffler brings two malicious‐prosecution claims, one against McDonough
(Count XII) and the other against Coon Rapids (Count XIII). Under Minnesota law, a
plaintiff must prove four things to make out a claim for malicious prosecution: (1) the
defendant initiated criminal proceedings against the plaintiff; (2) the defendant acted
without probable cause; (3) the defendant acted with malice; and (4) the proceedings
terminated in the plaintiff’s favor. See Cox v. Lauritsen, 147 N.W. 1093, 1094 (Minn.
1914); Jordan v. Lamb, 392 N.W.2d 607, 609 (Minn. Ct. App. 1986).
There is no dispute that Coon Rapids initiated criminal proceedings against
Scheffler and did so based on McDonough’s report. There is also no dispute that those
criminal proceedings terminated in Scheffler’s favor. As discussed above, however,
there is a dispute over whether McDonough had probable cause to arrest Scheffler—a
dispute that turns on whether Scheffler physically resisted handcuffing. There is also a
dispute over whether McDonough acted with malice. The Court therefore denies
defendants’ motion for summary judgment on Counts XII and XIII.
H. Abuse of Process
Scheffler brings two abuse‐of‐process claims, one against McDonough
(Count XIV) and the other against Coon Rapids (Count XV). Process was abused,
according to Scheffler, when the defendants sought a no‐contact order against him after
he showed up at McDonough’s divorce hearing. These are rather puzzling claims;
Scheffler wants McDonough and Coon Rapids to pay him damages because he was
ordered to stay away from McDonough, yet Scheffler (unsuccessfully7) attempted to
Scheffler’s petition was denied, and Scheffler unsuccessfully appealed to the
have McDonough ordered to stay away from him. In any event, defendants move for
summary judgment on these claims.
To recover for abuse of process, a plaintiff must prove that the defendant acted
for an ulterior purpose and used the process to accomplish an unlawful end for which
the process was not designed or intended. Kittler & Hedelson v. Sheehan Props., Inc., 203
N.W.2d 835, 840 (Minn. 1973). No reasonable jury could find, based on the evidence in
the record, that Scheffler has established these elements.
To begin with, there is no evidence that McDonough sought the no‐contact order.
Rather, it is undisputed that it was McDonough’s supervisor who contacted the City
Attorney about Scheffler’s appearance at McDonough’s divorce hearing and that it was
the City Attorney who decided to seek the no‐contact order. There is no evidence of
any contact whatsoever between McDonough and the City Attorney regarding the no‐
contact order. Therefore, even if someone abused the judicial process, that someone was
Further, even if McDonough had sought the no‐contact order, there is no
evidence that he acted with an ulterior purpose or that he used the process to
accomplish an end for which it was not intended. A few weeks after McDonough had a
Minnesota Court of Appeals. See Scheffler v. McDonough, A16‐0949, 2017 WL 1549979
(Minn. Ct. App. May 1, 2017), rev. denied (Minn. July 18, 2017).
physical encounter with Scheffler in the course of arresting him, Scheffler interjected
himself into McDonough’s divorce hearing—a private matter that had nothing to do
with Scheffler or with the events of July 10, 2014. McDonough was understandably
concerned about his safety, a reaction that would be shared by almost any police officer
who had a recently arrested criminal defendant intrude into the officer’s personal life in
this manner. The no‐contact order was sought for exactly the purpose for which it was
designed: To keep someone who is perceived as threatening away from the person who
feels threatened. For these reasons, the Court grants McDonough’s motion for
summary judgment on Count XIV.
The Court likewise grants summary judgment to Coon Rapids on Count XV.
Because McDonough cannot be held liable, Coon Rapids cannot be held vicariously
liable for his actions. And there is no evidence that would make Coon Rapids directly
liable. All evidence in the record suggests that the City Attorney had a legitimate
reason to seek a no‐contact order and sought such an order for precisely the reason that
such orders exist. It may be that the City Attorney erred in seeking—and that the state
judge erred in granting—a no‐contact order. Prosecutors and judges are human, and
they make mistakes. But there is no evidence that the City Attorney abused the judicial
I. MGDPA Retaliation
Finally, Scheffler sues Coon Rapids for “MGDPA Retaliation.” Specifically,
Scheffler alleges that Coon Rapids sought the no‐contact order to retaliate against him
for exercising his rights under the MGDPA. There are two problems with Scheffler’s
First, nothing in the MGDPA suggests—and no court has held—that a plaintiff
can bring a claim for “MGDPA retaliation.” A number of Minnesota statutes authorize
a cause of action for retaliation.8 The MGDPA is not one of them, despite the fact that
the Minnesota Legislature gave significant attention to the question of what remedies
should be available for violations of the statute. See Minn. Stat. § 13.08. Under the
circumstances, the Court will not recognize a new cause of action for “MGDPA
retaliation.” Cf. Becker v. Mayo Found., 737 N.W.2d 200, 207 (Minn. 2000).
Second, even if such a cause of action existed, the Court would grant Coon
Rapids’s motion for summary judgment, as the record does not contain sufficient
evidence of a nexus between Scheffler’s request under the MGDPA and the City
Attorney’s decision to seek a no‐contact order.
See, e.g., Minn. Stat. § 363A.15 (prohibiting “any reprisal against any person”
who has engaged in certain protected activities); Minn. Stat. § 181.937 (prohibiting “any
reprisal against an employee for declining to participate in contributions or donations to
charities or community organizations”); Minn. Stat. § 626.556, subd. 4a (prohibiting
retaliation against mandatory reporters who make good‐faith reports of abuse or
For these reasons, the Court grants Coon Rapids’s motion for summary
judgment on Count XVI.
Based on the foregoing, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
Plaintiff’s motion for partial summary judgment [ECF No. 85] is DENIED.
Defendants’ motion for partial summary judgment [ECF No. 77] is
GRANTED IN PART and DENIED IN PART as follows:
Defendants’ motion is GRANTED as to the following claims, and
those claims are DISMISSED WITH PREJUDICE AND ON THE
Count III, insofar as it asserts a claim for failure to render
Counts VI, VII, VIII, IX, X, and XI, insofar as they are based
on the actions of McDonough before he arrested Scheffler;
Counts XIV, XV, XVI, and XVII.
Defendants’ motion is DENIED in all other respects.
Dated: August 23, 2017
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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