Fahra v. Weyker et al

Filing 67

ORDER: (1) Defendants Heather Weyker and John Bandemer's Motion to Dismiss [Dkt. No. 41 ] is GRANTED IN PART and DENIED IN PART consistent with the opinion. (2) Defendant City of Saint Paul's Motion for Judgment on the Pleadings [Dkt. No . 47 ] is GRANTED. (3) Plaintiff Idris Ibrahim Fahra's Second Amended Complaint is DISMISSED WITH PREJUDICE as to Defendants John Bandemer, John Does 3-4, and the City of St. Paul. (4) Counts I and V of Plaintiff Idris Ibrahim Fahra's Second Amended Complaint are DISMISSED WITH PREJUDICE to the extent they plead violations of the Fifth and Fourteenth Amendments.(Written Opinion) Signed by Judge Joan N. Ericksen on August 9, 2017. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
IDRIS IBRAHIM FAHRA,
Plaintiff,
v.
HEATHER WEYKER, in her individual
capacity as a St. Paul Police Officer;
JOHN BANDEMER, in his individual
and official capacities as a St. Paul
Police Sergeant; JOHN DOES 3-4, in
their individual and official capacities as
supervisory members of the St. Paul
Police Department; and THE CITY OF
ST. PAUL,

Case No. 16cv1146 (JNE/TNL)
ORDER

Defendants.
I.

INTRODUCTION

Plaintiff Idris Ibrahim Fahra alleges violations of his constitutional rights in an
investigation that led to his indictment by a federal grand jury and his subsequent arrest, a trial
on some of the counts in which he was charged, his conviction on two counts, and the setting
aside of the conviction on those counts. He sues Defendants Heather Weyker, a police officer
for the St. Paul Police Department in Minnesota; John Bandemer, a St. Paul Police Department
sergeant who is alleged to have been Weyker’s supervisor; John Does 3-4, who are allegedly
supervisory St. Paul police officers; and the City of St. Paul (“St. Paul”). Weyker and Bandemer
move to dismiss Fahra’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim and on absolute and qualified immunity grounds. Dkt. No. 41. St. Paul
moves on behalf of the City of St. Paul and John Does 3-4 for judgment on the pleadings
pursuant to Rule 12(c). Dkt. No. 47.

The investigation at the core of Fahra’s civil complaint targeted a suspected venture
involving the sex-trafficking of minor girls across Minnesota, Tennessee, and Ohio. The
investigation resulted in the criminal indictment of thirty people, mostly Somali, in the Middle
District of Tennessee in 2010-2011 (“Tennessee Case”). Fahra alleges that Weyker and
Bandemer fabricated evidence about him and others throughout the investigation, resulting in a
tainted indictment that was further corrupted by Weyker’s continuing deception, and causing his
arrest and detention without probable cause.
Nineteen of Fahra’s co-defendants in the Tennessee Case bring separate suits similarly
alleging constitutional violations, and a twenty-first person brings another related civil suit. The
parties agreed to coordinated briefing on the Defendants’ motions. The Court assumes
familiarity with its fuller opinion in one of the related cases, Osman v. Weyker, et al., No.
16cv908 (“Osman Opinion”) (filed simultaneously herewith), and will not repeat that opinion’s
discussion verbatim here, given the overlap in allegations and arguments. Fahra, coordinating
with the other plaintiffs represented by his counsel, opposed the motions. See GBBS Pls.’ Opp.
to St. Paul Mot., Dkt. No. 52; GBBS Pls.’ Opp. to DOJ Mot. to Dismiss, Dkt. No. 55.
The Court held a hearing on Defendants’ motions on May 3, 2017, and now grants in part
and denies in part Weyker and Bandemer’s motion and grants St. Paul’s motion. 1
II.

APPLICABLE STANDARDS

A motion to dismiss or a motion for judgment on the pleadings is appropriately granted
“only when there is no dispute as to any material facts and the moving party is entitled to
judgment as a [m]atter of law.” Greenman v. Jessen, 787 F.3d 882, 887 (8th Cir. 2015) (citation
1

The United States also filed a Motion to Substitute and Dismiss, which was mooted by
stipulation as recognized by the April 12, 2017 Order Permitting the GBBS Plaintiffs to Amend
Complaints. Dkt. No. 62. Pursuant to that order, Fahra filed a Second Amended Complaint
[Dkt. No. 63] (“SAC”), which is thus the operative complaint subject to these Rule 12 motions.
2

omitted). To survive a Rule 12 motion, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Haney v.
Portfolio Recovery Assocs., LLC, 837 F.3d 918, 924 (8th Cir. 2016), as amended (Dec. 27,
2016). See also Osman Op. 3-4.
III.

ALLEGATIONS

Most of the allegations are similar to those alleged by Osman and summarized and
analyzed in the Court’s order in that case. See, e.g., Osman Op. 4-8. The Court briefly recounts
some allegations in Fahra’s Second Amended Complaint and some facts gleaned from the
Tennessee Case record. 2
On November 3, 2010, Fahra was indicted in a First Superseding Indictment (“FSI”) in
the Tennessee Case. SAC ¶ 16. He was charged in four counts. See FSI, United States v.
Fahra, No. 3:10cr260, Dkt. No. 36 (M.D. Tenn. Nov. 3, 2010); see also SAC ¶ 16. Two counts
alleged participation in a sex-trafficking conspiracy in violation of 18 U.S.C. § 1591(a) (Counts
1 and 2). Two counts alleged recruitment or attempted recruitment of a minor under the age of
14 (Jane Doe Two) for sex trafficking (Counts 12 and 13). A Second Superseding Indictment
was later filed that included the same charges against Fahra. See SAC ¶ 17; United States v.
Fahra, No. 3:10cr260, Dkt. No. 591 (M.D. Tenn. May 4, 2011).
Fahra was arrested on November 8, 2010. SAC ¶ 11.
The counts as against Fahra, which all related to the alleged sex trafficking conspiracy,
exclusively involved the supposed witness-victim Jane Doe Two. SAC ¶¶ 18, 20. “Jane Doe
Two was the centerpiece of Weyker’s and Bandemer’s fabricated case against Fahra . . . .” SAC
2

The Court may take judicial notice of public documents in the Tennessee Case record.
Greenman, 787 F.3d at 887.
3

¶ 21. Weyker was the lead investigator on the case, and Bandemer was her supervisor in the St.
Paul Police Department. SAC ¶ 15. The indictment alleged, in the only paragraph to include
specific allegations about Fahra, that in December 2006, on several occasions, Fahra and others
charged men to have sex with Jane Doe Two in Fahra’s apartment in St. Paul, Minnesota. See
SAC ¶ 20; FSI ¶ 13. “There was never any such conspiracy and Fahra never engaged in any
attempt to have Jane Doe Two engage in commercial sex.” SAC ¶ 22. “Fabricated evidence
formed the basis of this false allegation against Fahra.” Id.; see also SAC ¶ 25.
Weyker, by forming “a deep and manipulative relationship with Jane Doe Two and the
other Jane Doe witnesses who[m] she referred to as ‘My girls’ in a news interview about the vice
unit’s biggest indictment,” manipulated and coerced Jane Doe Two and other witnesses into
giving false testimony. See SAC ¶¶ 26, 29, 42. In a Sixth Circuit opinion, the court made
several remarks about interactions between Weyker and Jane Doe Two, including that “meetings
[between them] also produced a story in which Jane Doe 2 was not a troubled runaway or
juvenile delinquent, but was instead an innocent child taken in by a Somali gang who used her
for sex” and that “Jane Doe 2 furthered the district court’s suspicion when she testified on cross
examination that Weyker had misstated facts in the reports, adding to and omitting things from
her statements.” SAC ¶ 33 (quoting United States v. Fahra, 643 Fed. Appx. 480, 482 (6th Cir.
Mar. 2, 2016)).
In March 2012, a criminal trial began in which Fahra was tried on the four sextrafficking-related counts in which he was charged. SAC ¶¶ 36-37. At the trial, Weyker “was
not even called as a witness” because her “credibility was so eviscerated” by that point. SAC
¶ 35. After the jury selection process began, the government belatedly produced thousands of
pages of documents, causing the Court to delay the start of trial to April. See SAC ¶ 41; United

4

States v. Adan, 913 F. Supp. 2d 555, 559-60 (M.D. Tenn. 2012). Among the belatedly produced
documents were some of Weyker’s rough notes, “with one page containing references about Jane
Doe Two’s statements about finding guys ‘to have sex for money.’” SAC ¶ 41 (quoting Adan,
913 F.3d 2d at 588-89). “Weyker kept thousands of pages of rough notes. But only one page
contained any reference to commercial sex.” SAC ¶ 42.
The jury acquitted Fahra on Counts 2 and 13, but found him guilty on Counts 1 and 12.
SAC ¶ 37; Adan, 913 F. Supp. 2d at 560. Fahra “would never have been indicted for sextrafficking,” nor detained, nor convicted on Counts 1 and 12, “had Weyker and Bandemer not
fabricated evidence, cultivated and manipulated Jane Doe Two, manufactured testimony and
misled federal authorities.” SAC ¶¶ 38-40.
On December 19, 2012, “the district court granted Fahra’s motion for judgment of
acquittal on his sex-trafficking conviction and conditionally granted a new trial on Jane Doe
Two’s age issue and the Government’s violation of discovery orders.” SAC ¶ 52 (citing Adan,
913 F. Supp. 2d at 583, 591).
After the district court’s order granting the motion for acquittal, Fahra moved for release
from custody, and in February 2013, he was released on conditions. See SAC ¶¶ 53-54. The
government appealed that detention decision, but the appellate court determined that this appeal
was moot as to Fahra. United States v. Fahra, No. 13-5296, Dkt. No. 61-1, at 6 (6th Cir. Dec.
18, 2013) (submitted in this case at DOJ Reply Ex. BB).
On March 2, 2016, the Sixth Circuit affirmed the district court’s grant of Fahra’s motion
for judgment of acquittal as to Count 1 pursuant to Federal Rule of Criminal Procedure 29, on
the grounds of variance with regard to the sex-trafficking conspiracy charged in Counts 1 and 2.
See Fahra, 643 Fed. Appx. at 493-94. The Fahra opinion also reversed Fahra’s conviction on

5

Count 12 on the bases that Tennessee was an improper venue for his prosecution on that count
and that he was prejudiced by introduction of evidence in support of the single-conspiracy theory
charged in Counts 1 and 2. 643 Fed. Appx. at 493-94.
Fahra remained on electronic home monitoring until the day the Sixth Circuit Fahra
opinion was issued, when he was fully released from pretrial detention. SAC ¶¶ 54-55.
Like Osman, Fahra alleges that the charges of a wide-ranging sex-trafficking conspiracy
were baseless and that Weyker fabricated “the overwhelming majority of material evidence
supporting his indictment,” SAC ¶ 27; that Weyker manipulated and coerced Jane Doe
witnesses, including Jane Doe Two, into lying, e.g., SAC ¶¶ 26, 29; that Weyker was motivated
to falsify evidence by a desire for professional success, see SAC ¶ 15; and that indications of
Weyker’s fabrication included her rough notes, SAC ¶¶ 33, 41-42, questions surrounding Jane
Doe Two’s age, SAC ¶¶ 19, 34, questions surrounding Jane Doe Two’s April 2009 trip to
Nashville, SAC ¶¶ 23-24, 33, and the district court’s grant of the Rule 29 motions, SAC ¶ 52.
Also like Osman, Fahra’s complaint repeatedly cites to remarks about Weyker and the case by
the district and appellate courts in the Tennessee Case. E.g., SAC ¶¶ 24, 28 n.1, 33, 41.
IV.

SUMMARY OF ARGUMENTS

A summary of the parties’ arguments is included in Section IV of the Court’s opinion in
Yusuf v. Weyker, et al., No. 16cv1012, filed simultaneously herewith. Fahra is represented by the
same counsel as Yusuf.
V.

LEGAL ANALYSIS

As explained fully in the Osman Opinion, pursuant to Manuel v. City of Joliet, 137 S. Ct.
911 (Mar. 21, 2017), Fahra’s claims sound, if at all, in the Fourth Amendment, not the Fifth or
Fourteenth. See Osman Op. 11-13; see also id. at 17-22. His complaint is that “[b]ut for the

6

false testimony and other evidence falsely manufactured by Weyker and Bandemer, no probable
cause existed to detain or otherwise restrict Fahra’s liberty.” SAC ¶ 1; see also SAC ¶ 39. In
other words, he complains “that a form of legal process resulted in pretrial detention unsupported
by probable cause.” Manuel, 137 S. Ct. at 919. So “the right allegedly infringed lies in the
Fourth Amendment.” Id. A “constitutional division of labor” applies to claims similar to
Fahra’s. Id. at 920 n.8 (referring to Gerstein v. Pugh, 420 U.S. 103 (1975), and Albright v.
Oliver, 510 U.S. 266 (1994)). Thus, because he challenges his pretrial detention, his claim is
under the Fourth Amendment. In contrast, if he had been convicted and were to challenge the
sufficiency of the evidence supporting that conviction, his claim would then be analyzed under
the Due Process Clause of the Fourteenth Amendment because “once a trial has occurred, the
Fourth Amendment drops out: A person challenging the sufficiency of the evidence to support
both a conviction and any ensuing incarceration does so under the Due Process Clause . . . .” Id.
(emphasis added) (citing Jackson v. Virginia, 443 U.S. 307, 318 (1979), and Thompson v.
Louisville, 362 U.S. 199, 204 (1960)). Although Fahra did stand trial and was convicted on
Counts 1 and 12, those convictions were set aside by the district court’s grant of his Rule 29
motion and his motion for a new trial. See Adan, 913 F. Supp. 2d at 570, 571, 590. Because
Fahra’s convictions were set aside, he challenges pretrial detention, not incarceration imposed
pursuant to a sentence, and his claims still sound in the Fourth Amendment. Compare with
Jackson, 443 U.S. at 316 (describing the due process guarantee “that no person shall be made to
suffer the onus of a criminal conviction except upon sufficient proof”) (emphasis added), and
Thompson, 362 U.S. at 206 (holding that it violates due process “to convict and punish a man
without evidence of his guilt”). Fahra’s claims for substantive due process violations under the

7

Fifth or Fourteenth Amendments therefore fail. See Manuel, 137 S. Ct. at 919-20; Albright, 510
U.S. at 271 (plurality opinion). 3
Under the Fourth Amendment analysis, the Court must decide whether Fahra plausibly
alleges that the Defendants violated his right to be free from unreasonable seizure by arresting
and detaining him without arguable probable cause, based on fabricated evidence. 4
To evaluate whether a person’s Fourth Amendment right has been violated by an arrest
pursuant to a warrant that lacked probable cause, the court applies the analysis set out in Franks
v. Delaware, 438 U.S. 154 (1978). See Hawkins v. Gage Cty., 759 F.3d 951, 958-59 (8th Cir.
2014); Hernandez-Cuevas v. Taylor, 723 F.3d 91, 101, 105 (1st Cir. 2013). Thus, the court
considers whether there were deliberately or recklessly false statements made in support of a
finding of probable cause and whether those statements were necessary to the finding of probable
cause. See Franks, 438 U.S. at 156; Williams v. City of Alexander, 772 F.3d 1307, 1311 (8th Cir.
2014). The court also considers whether material information was omitted with the intent to
mislead or with reckless disregard as to whether the omission was misleading. See Williams, 772
F.3d at 1312; Hawkins, 759 F.3d at 959. If, setting aside the false statements (or adding in the
omitted information), there was no probable cause to arrest, then the arrest violated the Fourth
Amendment. See Williams, 772 F.3d at 1312-13; Hawkins, 759 F.3d at 958-59; HernandezCuevas, 723 F.3d at 105. Probable cause “exists when the totality of the circumstances at the
3

As explained in a footnote in the Court’s simultaneously filed order in Yusuf v. Weyker,
et al., No. 16cv1012, the attempt to distinguish Albright in his opposition papers, which were
filed without the benefit of the Manuel decision, is not persuasive in light of the Manuel Court’s
clear interpretation of Albright. See Manuel, 137 S. Ct. at 918.
4

Because the Court finds that only the Fourth Amendment, and not substantive due
process, is applicable; because a Fourth Amendment claim in this case does not present a new
context for a Bivens action; and because § 1983 and Bivens claims are analyzed similarly, the
Court does not reach the question of whether Fahra’s claim should be brought under § 1983 or
Bivens. See Osman Op. 13-17.
8

time of the arrest are sufficient to lead a reasonable person to believe that the defendant has
committed or is committing an offense.” Greenman v. Jessen, 787 F.3d 882, 888 (8th Cir. 2015)
(citation omitted).
Where a plaintiff alleges that she was arrested without probable cause and the defendant
asserts the qualified immunity defense, courts ask whether there was “arguable probable cause to
arrest.” Stewart v. Wagner, 836 F.3d 978, 984 (8th Cir. 2016) (citing New v. Denver, 787 F.3d
895, 899 (8th Cir. 2015)) (applying this standard to a Fourth Amendment claim for detention
based on allegedly false and incomplete information in a probable cause statement). “[T]he issue
for immunity purposes is not probable cause in fact but arguable probable cause, that is, whether
the officer should have known that the arrest violated plaintiff’s clearly established right.” New,
787 F.3d at 899. “It is clearly established that the Fourth Amendment requires a truthful factual
showing sufficient to constitute probable cause before an arrest warrant can issue.” Peterson v.
City of Plymouth, 60 F.3d 469, 477 (8th Cir. 1995) (emphasis added) (quoting Moody v. St.
Charles Cty., 23 F.3d 1410, 1412 (8th Cir. 1994)).
a. Analysis of Fahra’s Claim Under the Fourth Amendment
In considering whether Fahra plausibly alleges a Fourth Amendment violation, the Court
disregards mere conclusory statements, focuses on well-pleaded factual allegations and accepts
them as true, and applies its judicial experience and common sense. See Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009). The Court also properly considers the Tennessee Case court record in
assessing the pleadings. See, e.g., Greenman, 787 F.3d at 887.
Fahra’s core allegations are very similar to Osman’s, including the ample citations to
comments by the Tennessee Case district court and a related appellate decision. In the Osman
Opinion, the Court examines several orders and memoranda by the district court and two

9

separate Sixth Circuit Court of Appeals opinions concerning the Tennessee Case, some of which
both Osman and Fahra cite. See Osman Op. 25-33. For instance, similar to Osman’s allegations
about the Spring 2012 trial, Fahra alleges that the jury acquitted him on two counts and that the
district court granted his motion for judgment of acquittal 5 after trial. See SAC ¶ 37, 52. Also
like Osman, he cites repeatedly to the district court’s post-trial order on the Rule 29 motions
(Adan, 913 F. Supp. 2d 555 (M.D. Tenn. 2012)) and to the appellate opinion affirming that order
(Fahra, 643 Fed. Appx. 480 (6th Cir. 2016)). See SAC ¶¶ 24, 28 n.1, 33, 41, 44. For instance,
he quotes the Fahra opinion’s noteworthy description of the “story” the prosecution presented at
trial as “likely a fictitious story.” SAC ¶ 33 (quoting Fahra, 643 Fed. Appx. at 484). Fahra also
quotes some pointed remarks in that opinion about testimony surrounding a trip Jane Doe Two
took to Nashville in April 2009 (even though the indictment did not allege that Fahra was
involved with that trip), in order to support his allegations that Weyker manipulated Jane Doe
Two into testifying falsely in support of the large-scale sex-trafficking conspiracy. SAC ¶ 24
(quoting Fahra, 643 Fed. Appx. at 482-83). The Osman Opinion discusses in detail the district
court’s Adan opinion and the Sixth Circuit Fahra opinion, as well as other cited documents,
including a pretrial memorandum at Dkt. No. 1392 concerning photographic show-ups
conducted by Weyker and references to a July 31, 2012 detention hearing.
In Osman’s case, the Court found that some of these statements by judicial officers are
remarkable, and that taken all together along with other well-pleaded facts, they nudge Osman’s
Fourth Amendment claim as to Weyker over Iqbal’s plausibility line. Fahra was exclusively
charged with sex-trafficking-related crimes. Therefore, consistent with the analysis in the
5

Fahra’s careful phrasing—alleging that the district court granted his motion for
judgment of acquittal, rather than alleging that the district court “acquitted him”—may reflect
some of the same considerations that the Court discusses in an aside on the phrase “acquitted” in
the Osman Opinion. See Osman Op. 23-25.
10

Osman Opinion, see Osman Op. 17-20, 22-28, 35, the Court finds that Fahra’s allegations of a
Fourth Amendment violation by Weyker in fabricating evidence related to sex trafficking also
survive Weyker’s motion to dismiss. The caveats that the Court noted in the Osman Opinion
apply to Fahra’s allegations, too. Like Osman, Fahra has included some factual allegations more
specifically relating to his case, in addition to his detailed references to particular remarks by the
district and appellate court. Fahra specifically denies that he ever was involved in any efforts to
have Jane Doe Two engage in sex for money. SAC ¶ 22. Although some of Jane Doe Two’s
testimony about engaging in sex for money from November 2006 through May 2007 appears to
have referenced Fahra, the judge who wrote the Fahra opinion (in which the two other panel
judges merely concurred in the judgment) professed to having an “acute concern” that Jane Doe
Two was “unworthy of belief.” 643 Fed. Appx. at 484. In addition, to bolster his allegations
that Weyker knowingly promulgated false evidence, Fahra alleges an exchange between Weyker
and a Jane Doe in which the Jane Doe appears to recant her previous account, admitting that “I
was perhaps just trying to get the interest of you guys trying to help me get a house[,] that’s
about it,” and that “I told you guys that I was forced to say all this. . . . You guys should just stop
people from . . . from trying to make other people do false statements.” SAC ¶ 30. 6 Considering
all of Fahra’s allegations as to Weyker, the Court finds they meet the Iqbal standard.
The same cannot be said for Fahra’s allegations about Bandemer. The vast majority of
the allegations as to Bandemer are conclusory and lacking well-pleaded facts. E.g., SAC ¶ 34
(“Weyker and Bandemer knew or had reason to know that some of their Jane Does were not

6

It should be noted that in this alleged exchange, Weyker says she does not believe that
what Jane Doe had said before was a false statement. SAC ¶ 30. Courts have recognized that
“[i]nterviewers of child witnesses of suspected sexual abuse must be given some latitude in
determining when to credit witnesses’ denials and when to discount them . . . .” Devereaux v.
Abbey, 263 F.3d 1070, 1075 (9th Cir. 2001) (granting summary judgment).
11

minors.”), 38 (“Fahra would never have been indicted for sex-trafficking had Weyker and
Bandemer not fabricated evidence . . . .”). And none of the judicial statements that lend some
plausibility to the allegations about Weyker refer to Bandemer in any way. Fahra does not
plausibly plead that Bandemer directly violated his civil rights. Bandemer is entitled to qualified
immunity on Counts 1 and 5.
b. Supervisory Liability
Fahra also sues Bandemer and John Does 3-4 in their individual capacities as supervisors.
He alleges that they were deliberately indifferent to or authorized Weyker’s and Bandemer’s
alleged violations of his constitutional rights. See SAC ¶¶ 45-46.
A supervisor sued in his or her individual capacity in a § 1983 or Bivens suit “is only
liable for his or her own misconduct.” Iqbal, 556 U.S. at 677; see also S.M. v. Krigbaum, 808
F.3d 335, 340 (8th Cir. 2015). “When a supervising official who had no direct participation in
an alleged constitutional violation is sued for failure to train or supervise the offending actor, the
supervisor is entitled to qualified immunity unless plaintiff proves that the supervisor (1)
received notice of a pattern of unconstitutional acts committed by a subordinate, and (2) was
deliberately indifferent to or authorized those acts.” Krigbaum, 808 F.3d at 340 (citing Livers,
700 F.3d at 355). “This rigorous standard requires proof that the supervisor had notice of a
pattern of conduct by the subordinate that violated a clearly established constitutional right.
Allegations of generalized notice are insufficient.” Id. The notice prong requires that “[t]o
impose supervisory liability, other misconduct [allegedly giving the supervisor notice] must be
very similar to the conduct giving rise to liability.” Id. (quoting Livers, 700 F.3d at 356).
First, given the Court’s conclusion that Fahra has not adequately alleged a direct
constitutional violation by Bandemer, the supervisory liability claims “automatically fail for lack

12

of an underlying constitutional violation” to the extent they allege liability by John Does 3-4 for
supervising Bandemer. Mendoza v. U.S. Immig’n & Customs Enf’t, 849 F.3d 408, 420 (8th Cir.
2017) (citing City of Los Angeles v. Heller, 475 U.S. 796, 798-99 (1986)).
Moreover, Fahra’s complaint, which is again very similar to Osman’s complaint as to the
supervisory liability allegations, likewise contains few allegations—and fewer well-pleaded
facts—regarding supervisory liability. Like Osman, he alleges that Bandemer and the John Does
had supervisory responsibility over Weyker, see, e.g., SAC ¶ 68; that the investigation was very
important to the St. Paul Police Department vice unit, SAC ¶ 15; and that “[b]y at least February
15, 2012, these [supervisory] defendants had actual knowledge” of Weyker’s fabrications based
on the February 2012 memorandum-order at Dkt. No. 1392 and other district court orders, id.
¶¶ 43-44, 46. Like Osman, Fahra cites two footnotes—United States v. Mohamud, No.
3:10cr260, 2013 WL 1935506, at *11 n. 6 (M.D. Tenn. May 9, 2013), and United States v. Adan,
913 F. Supp. 2d 555, 589 n.10 (M.D. Tenn. Dec. 19, 2012)—in support of his supervisory
liability notice allegations. SAC ¶¶ 43-44.
As explained in the Osman Opinion, these allegations do not sufficiently plead
supervisory liability based on notice. See Osman Op. 37-41. Nor do they establish a pattern of
unconstitutional acts by Weyker. Ignoring conclusory or unsupported allegations, Fahra does not
allege any other similar acts by Weyker or Bandemer before the Tennessee Case investigation
that could show a pattern about which Bandemer (as Weyker’s supervisor) or the John Does (as
Weyker’s and/or Bandemer’s supervisors) personally knew.
The allegations fail to state a claim for supervisory liability, and Bandemer and John
Does 3-4 are entitled to qualified immunity as to these counts.

13

c. Municipal Liability
Fahra sues St. Paul as well as Bandemer and the John Does in their official capacities for
municipal liability under Monell v. Dept. of Social Servs. of the City of New York, 436 U.S. 658
(1978). “[A] local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents.” Id. at 694. “Instead,” a municipality is liable “when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury . . . .” Id.
A plaintiff therefore must show that there is an “official” policy or a “custom or usage
with the force of law.” Kelly v. City of Omaha, 813 F.3d 1070, 1075 (8th Cir. 2016). A plaintiff
must plead “allegations, reference, or language by which one could begin to draw an inference
that the conduct complained of . . . resulted from an unconstitutional policy or custom.”
Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir. 2004) (citation
omitted). Absent allegations of an official policy that was the moving force behind the violation,
“[m]isconduct among a municipality’s employees must be ‘continuing, widespread, [and]
persistent’ to establish such a custom.’” Kelly, 813 F.3d at 1075 (citation omitted). Also, “the
municipality will not be liable unless policymaking officials exhibit ‘[d]eliberate indifference to
or tacit authorization of such conduct . . . after notice to the officials of that misconduct.’” Id. at
1075-76 (citation omitted). The question is whether a “governmental policy or custom was the
‘moving force’ that led to the deprivation of [the plaintiff’s] constitutional rights.” Speer v. City
of Wynne, 276 F.3d 980, 986 (8th Cir. 2002). Even if no individual employee is found liable, a
municipality might be liable, but only where “the combined actions of multiple officials or
employees may give rise to a constitutional violation.” Id.

14

Fahra does not adequately support his conclusory municipal liability allegations. He does
not allege with well-pleaded facts that Weyker or other St. Paul Police Department employees
fabricated evidence in other investigations, nor that policymaking officials in the department
were aware of any previous incidents of fabrication of evidence. He does not allege wellpleaded facts to support a theory that multiple St. Paul Police Department members—not even
Weyker and Bandemer—combined to violate his rights. Nor does he allege facts that would
demonstrate an official department policy that moved officers to fabricate evidence or coerce
witnesses and mislead prosecutors and grand juries to secure indictments. He also does not
plausibly allege any such custom because, among other reasons, he has not adequately alleged
notice, as explained above. The supervisory defendants sued in their official capacities, and the
City of St. Paul, are entitled to qualified immunity on these claims.
VI.

Conclusion

Defendants are entitled to qualified immunity on all counts except Counts 1 and 5 as to
Weyker. As to Defendants Bandemer, John Does 3-4, and the City of St. Paul, the Court grants
their motions and dismisses with prejudice. See Ulrich v. Pope Cty., 715 F.3d 1054, 1060-61
(8th Cir. 2013); C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 635 (8th Cir.
2010).
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1. Defendants Heather Weyker and John Bandemer’s Motion to Dismiss [Dkt. No. 41]
is GRANTED IN PART and DENIED IN PART consistent with the above opinion.
2. Defendant City of Saint Paul’s Motion for Judgment on the Pleadings [Dkt. No. 47] is
GRANTED.
3. Plaintiff Idris Ibrahim Fahra’s Second Amended Complaint is DISMISSED WITH
PREJUDICE as to Defendants John Bandemer, John Does 3-4, and the City of St.
Paul.
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4. Counts I and V of Plaintiff Idris Ibrahim Fahra’s Second Amended Complaint are
DISMISSED WITH PREJUDICE to the extent they plead violations of the Fifth and
Fourteenth Amendments.
Dated: August 9, 2017

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

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