Jacox v. Bloomington, City of et al

Filing 32

ORDER granting 14 Motion for Summary Judgment, Counts 13 of Jacox's Amended Complaint (Doc. No. 10) are DISMISSED WITH PREJUDICE as to the City and DISMISSED WITHOUT PREJUDICE as to John Doe, Hennepin County Sheriff, and Hennepin County Probation, and Counts 47 are DISMISSED WITHOUT PREJUDICE. (Written Opinion). Signed by Judge Richard H. Kyle on 4/20/17. (KLL)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Allie Jacox,
Civ. No. 16-492 (RHK/DTS)
MEMORANDUM OPINION
AND ORDER

Plaintiff,
v.
City of Bloomington, et al.,
Defendants.

William L. Walker, Jr., Walker Law Offices, PA, Minneapolis, Minnesota, for Plaintiff.
Jason M. Hiveley, Iverson Reuvers Condon, Bloomington, Minnesota, for Defendants
John Doe, Bloomington Police Department, and City of Bloomington.

INTRODUCTION
In the evening of August 14, 2015, Bloomington police officers went to Plaintiff
Allie Jacox’s home in an attempt to locate her grandson, who had an outstanding warrant
for his arrest. There they briefly detained her, searched her, and searched her home.
Pursuant to 42 U.S.C. § 1983, she now alleges that Defendants John Doe, the
Bloomington Police Department, and the City of Bloomington (collectively, the
“Bloomington Defendants”), as well as the Hennepin County Sheriff and Hennepin
County Probation (collectively, the “Hennepin Defendants”), violated federal and state
law in connection with her detention and search. Presently before the Court is the
Bloomington Defendants’ Motion for Summary Judgment. For the reasons that follow,
the Motion will be granted.

BACKGROUND
The material facts are undisputed. In the evening on August 14, 2015, a Hennepin
County probation officer, assisted by Bloomington police officers, performed home visits
on probationers. (Blake Aff. ¶ 3; Buzicky Aff. Ex. A.) One probationer, Leon Lambert,
Jr., had an active felony warrant for his arrest. (Blake Aff. ¶ 2, Ex. A; Buzicky Aff. Ex.
A.) In an attempt to locate him, the team proceeded to the address listed on Lambert’s
warrant—8401 Portland Avenue South.
There, they encountered Jacox, who is Lambert’s grandmother and owns the home
at that address. Jacox testified in her deposition that she was asleep and was awakened
by banging on her front door. (Jacox Dep. 15.) Once out of bed, she saw “somebody
was running around on [her] front steps [but] couldn’t see who it was.” (Id.) She
retrieved a handgun “because [she is] 80 years old, and black, and stay[s] by [her]self.”
(Id.) Handgun at her side, she walked to her front door and heard, “Police. Open the
door.” (Id.) She complied, and the group began questioning her about Lambert. (Id.)
Jacox asked them to identify themselves, and they replied that they were Bloomington
police officers. She observed they were “dressed all in blue,” and she saw badges but
was not wearing her glasses. (Id. 16.) Their questioning about Lambert resumed; she
advised that he no longer lived there, and she did not know his whereabouts. (Id. 16–17.)
In the midst of this conversation, Jacox’s home alarm sounded. She turned away
from the group to disable it, and that is when the officers noticed her handgun. (Id. 17.)
The officers backed away and shouted, “Gun! Come out with your hands up!” (Id.)
Again, Jacox complied; she laid her handgun on a sewing machine near her front door
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and walked outside. (Id.) The officers commanded her to raise her hands and get on her
knees, but prior shoulder and back injuries limited her range of motion. (Id. 18.) She put
her hands in the air and “squatted down,” and a male officer cuffed her hands behind her
back. (Id.) She said, “I [have] a permit to carry and my gun is registered.” (Id.) The
officer proceeded to search her and, in the course of the search, touched her breasts and
vaginal area with the palm of his hand. (See id. 34–37.) Jacox wore only a thin
nightgown and shirt. (Id. 36.)
The officer then asked Jacox to wait near a tree in her yard. (Id. 18.) For five to
six minutes, she waited there, handcuffed, while the officers discussed whether to search
her home. (Id. 18–19, 44.) She told the officers, “If you’re going to search my house,
my downstairs is locked,” but she refused to share the location of the keys. (Id. 19.)
Officers secured her gun, searched the unlocked areas of the home, then returned to her,
re-cuffed her hands in front of her body, and allowed her to retrieve keys to the locked
rooms. (Id. 20.) She did so and remained inside as the officers completed their search.
(Id.) They did not find Lambert. Afterwards, the officers returned Jacox’s firearm and
left. (Id. 20–21.)
Jacox later commenced this action in the Hennepin County District Court, alleging
federal claims for unreasonable search and seizure and conspiracy, as well as related
claims under state law. The Bloomington Defendants removed the action to this Court
and now move for summary judgment. The Motion has been fully briefed, the Court
heard argument on March 16, 2017, and the Motion is ripe for disposition.

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STANDARD OF DECISION
Summary judgment is proper if, drawing all reasonable inferences in favor of the
nonmoving party, there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986). The moving party bears the burden of showing that the
material facts in the case are undisputed. Id. at 322; Johnson v. Wheeling Mach. Prod.,
779 F.3d 514, 517 (8th Cir. 2015). The Court must view the evidence, and the inferences
that may be reasonably drawn from it, in the light most favorable to the nonmoving party.
Ryan v. Armstrong, 850 F.3d 419, 424 (8th Cir. 2017); Letterman v. Does, 789 F.3d 856,
858, 861 (8th Cir. 2015). The nonmoving party may not rest on allegations or denials,
but must show through the presentation of admissible evidence that specific facts exist
creating a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986); Nationwide Prop. & Cas. Ins. Co. v. Faircloth, 845 F.3d 378, 382 (8th Cir. 2016)
ANALYSIS
The crux of Jacox’s seven-count Amended Complaint is that the Bloomington
Defendants’ search of her home and her person (specifically, with an open palm over her
breasts and vaginal area) violated federal and state law. But her failure to serve multiple
defendants and a dearth of supporting evidence prove fatal to her claims.
When Jacox commenced this action, her Complaint named “John Doe” as a
placeholder for the individual(s) she intended to sue. Then, on April 20, 2016, she
received initial disclosures from the Bloomington Defendants identifying the individual
officers involved in this incident. (See Hiveley Aff. ¶ 3, Ex. B.) She amended her
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Complaint one month later, but again she named only “John Doe” defendants, not
individual officers. (Doc. No. 10.) Now, over a year after commencing litigation and
more than five months after the close of discovery (see Doc. No. 9), Jacox has still failed
to identify any individual she intended to sue. Indeed, her Memorandum generically
refers to “Bloomington male officers” and “the officer.” (Doc. No. 21.) This lays bare a
fundamental problem: there is no evidence in the record that Jacox served any individual
officer with a copy of her Amended Complaint. At oral argument, her counsel
acknowledged that he had served no individual officer in connection with this action. He
rested solely on the fact that the officers’ names appear in the record, but this is clearly
not sufficient—the Court cannot exercise jurisdiction over a defendant that the plaintiff
has failed to serve. Dodco, Inc. v. Am. Bonding Co., 7 F.3d 1387, 1388 (8th Cir. 1993);
see also Thornton v. U.S. Dep’t of Justice, 93 F. Supp. 2d 1057, 1064 (D. Minn. 2000)
(Tunheim, J.) (dismissing unnamed defendants where the “plaintiff has neither identified
[them], nor sought assistance from the Court in doing so.”). Accordingly, the Court will
dismiss all claims against John Doe. 1 Fed. R. Civ. P. 4(m).
Jacox has also sued the Bloomington Police Department but, as a subdivision of
the City of Bloomington (the “City”), it is not a suable entity. See El-Alamin v. Radke,
369 F. App’x 770, 771 (8th Cir. 2010) (per curiam); Defedo v. Schnell, Civ. No. 15-

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The same analysis applies to the Hennepin Defendants—the record contains no evidence they
have been served and, in the absence of service, the Court must dismiss the claims against them.
Fed. R. Civ. P. 4(m); see also Hoffmann v. United States, 21 F. App’x 528, 529 (8th Cir. 2001)
(per curiam) (district court may sua sponte dismiss defendants who have not been served).

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2585, 2015 WL 6549586, at *2 (D. Minn. Oct. 27, 2015) (Kyle, J.). Hence, the Court
will dismiss the claims against the Bloomington Police Department.
As a result of the foregoing, only the City remains as a defendant. The City is
suable under § 1983, but Jacox cannot recover merely by showing the City’s employee(s)
may have violated her constitutional rights. Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 691 (1978) (“[A] municipality cannot be held liable solely because it employs a
tortfeasor.”). Rather, Jacox must also show a City policy or custom was the “moving
force” behind the purported violation. Id. at 694; see also Malone v. Hinman, 847 F.3d
949, 955 (8th Cir. 2017); Schaffer v. Beringer, 842 F.3d 585, 596 (8th Cir. 2016); Mettler
v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999). She has failed in this regard, alleging
only that “Defendants, by committing the unlawful search and seizure, were carrying out
the security policy of Bloomington Police Department.” (Am. Compl. ¶ 12.) Beyond
this fleeting reference in her Amended Complaint, she offers no allegation of any policy
or custom, let alone evidence of one—her Memorandum is silent on this issue.
Accordingly, the City is entitled to summary judgment on her § 1983 claim (Count 1).
Jacox next alleges the existence of a conspiracy to violate her constitutional rights.
Section 1983 provides a cause of action against individuals who conspire to violate a
plaintiff’s constitutional rights. Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999).
Similarly, § 1985(3) “provides a cause of action for damages sustained as a result of . . .
conspiracies to deprive individuals of equal privileges and immunities and equal
protection under the law.” Kelly v. City of Omaha, 813 F.3d 1070, 1077 (8th Cir. 2016).

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However, Jacox’s failure to establish a constitutional violation compels dismissal of her
conspiracy claims. See, e.g., Robbins v. Becker, 794 F.3d 988, 997 (8th Cir. 2015)
(“Absent a constitutional violation, there is no actionable conspiracy claim.”) (internal
quotation marks and citations omitted); Askew v. Millerd, 191 F.3d at 957 (“[T]he
plaintiff is . . . required to prove a deprivation of a constitutional right or privilege in
order to prevail on a § 1983 civil conspiracy claim.”). Hence, Counts 2 and 3 will be
dismissed.
Finally, Jacox has alleged several state-law claims. However, the Court’s subjectmatter jurisdiction in this action is premised on the existence of a federal question.
Jurisdiction over her state-law claims exists solely by virtue of the supplementaljurisdiction statute, 28 U.S.C. § 1367, which provides jurisdiction over state-law claims
forming part of the same “case or controversy” as federal claims. The exercise of
supplemental jurisdiction is discretionary, and where all federal claims have been
dismissed prior to trial, the factors to be considered in deciding whether to exercise such
jurisdiction typically militate against the exercise of supplemental jurisdiction. E.g.,
Johnson v. City of Shorewood, 360 F.3d 810, 819 (8th Cir. 2004) (citing CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)); accord, e.g., United Mine
Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are
dismissed before trial . . . the state claims should be dismissed as well.”). That is the
case here. Accordingly, the Court declines to exercise supplemental jurisdiction over
Jacox’s state-law claims, and those claims (Counts 4–7) will be dismissed without
prejudice.
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CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that (1) the Bloomington Defendants’ Motion for Summary Judgment (Doc.
No. 14) is GRANTED; (2) Counts 1–3 of Jacox’s Amended Complaint (Doc. No. 10) are
DISMISSED WITH PREJUDICE as to the City and DISMISSED WITHOUT
PREJUDICE as to John Doe, Hennepin County Sheriff, and Hennepin County
Probation; and (3) Counts 4–7 are DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY

Date: April 20, 2017

s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge

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