Mohamud v. Weyker et al

Filing 64

ORDER: (1) Defendants Heather Weyker and John Bandemer's Motion to Dismiss [Dkt. No. 38 ] 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 . 44 ] is GRANTED. (3) Plaintiff Bashir Yasin Mohamud's Amended Complaint is DISMISSED WITH PREJUDICE as to Defendants John Bandemer, John Does 3-4, and the City of St. Paul. (4) Counts 1 and 5 of Plaintiff Bashir Yasin Mohamud's 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
BASHIR YASIN MOHAMUD,
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; THE CITY OF ST.
PAUL,

Case No. 16cv1894 (JNE/TNL)
ORDER

Defendants.
I.

INTRODUCTION

Plaintiff Bashir Yasin Mohamud alleges violations of his constitutional rights in an
investigation that led to his indictment by a federal grand jury and his subsequent arrest. 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 Mohamud’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. 38. 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. 44.
The investigation at the core of Mohamud’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”). Mohamud 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 Mohamud’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. Mohamud, coordinating with the other plaintiffs represented by his
counsel, opposed the Defendants’ motions. See GBBS Pls.’ Opp. to St. Paul Mot., Dkt. No. 49;
GBBS Pls.’ Opp. to DOJ Mot. to Dismiss (“GBBS DOJ Opp.”), Dkt. No. 52.
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
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

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. 59. Pursuant to that order, Mohamud filed an Amended Complaint [Dkt.
No. 60] (“AC”), which is thus the operative complaint subject to these Rule 12 motions.
2

U.S. 662, 678 (2009) (citation omitted); 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 Mohamud’s Amended Complaint and some facts gleaned from the
Tennessee Case record. 2
On November 3, 2010, Mohamud was charged in a First Superseding Indictment (“FSI”)
in the Tennessee Case. AC ¶ 17. He was charged in only two counts. Counts 1 and 2 charged
him with conspiracy to violate 18 U.S.C. § 1591(a), which criminalizes the sex trafficking of
minors, sex trafficking by force, fraud, or coercion, and knowingly benefiting from participating
in such a sex-trafficking venture. AC ¶ 17. A Second Superseding Indictment was later filed
that included the same charges against Mohamud. AC ¶ 18; United States v. Mohamud, No.
3:10cr260, Dkt. No. 591 (M.D. Tenn. May 4, 2011).
Mohamud was arrested on November 8, 2010. AC ¶ 13. On December 2, 2010, he
waived his right to a detention hearing, reserving “his right to seek release at some point in the
future if appropriate,” and he was ordered to be detained in custody. United States v. Mohamud,
No. 3:10cr260, Dkt. No. 1006, at 2 (M.D. Tenn. Dec. 15, 2011) (submitted in this civil case as
DOJ Br. Ex. D, Dkt. No. 41-1).
The counts as against Mohamud exclusively involved the supposed witness-victim Jane
Doe Four. AC ¶ 20. The indictment alleged that on March 11, 2010, Mohamud and others
transported Jane Doe Four to a hotel in Richfield, Minnesota, where Mohamud rented a room.
2

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

AC ¶ 21. It alleged that “[i]n this room,” Mohamud “and other males through force and fraud,
had non-consensual sex with Jane Doe Four,” who was then 18 years old. FSI ¶¶ 59-60; AC
¶ 21. “There was never any such [sex-trafficking] conspiracy[,] and Mohamud never engaged in
any attempt to have Jane Doe Four or any others engage in commercial sex. . . . Fabricated
evidence formed the basis of this false allegation against Mohamud.” AC ¶ 22. “Further, no
such non-consensual sex occurred between Mohamud and Jane Doe Four.” AC ¶ 23. Mohamud
did rent a room in a hotel in Richfield on March 10-11, 2010, and he was there with Jane Doe
Four on those dates. AC ¶¶ 24-25. Jane Doe Four “was a willing participant in a party that
occurred in that room,” and she engaged in consensual sexual activities with Mohamud at the
party. AC ¶¶ 25-26. The Richfield Police Department interviewed Mohamud about the party
only after the Tennessee Case prosecutor contacted them and informed them that “this alleged
incident involving Jane Doe Four was likely related to [the prosecutor’s] investigation involving
human sex trafficking in Nashville, Tennessee—the same ‘ring’ being investigated by Weyker
and Bandemer.” AC ¶¶ 27-28. Weyker was the lead investigator on the case, and Bandemer
was her supervisor in the St. Paul Police Department. AC ¶ 16. “Mohamud was never charged
by the Richfield Police Department with any crime relating to the events of March 10-11, 2010.”
AC ¶ 29.
In her grand jury testimony in the Tennessee Case, Jane Doe Four gave conflicting
accounts of what happened at the Richfield party. AC ¶¶ 30-31. During October 2010 grand
jury testimony, Jane Doe Four “stated she was not going to the Motel 6 to exchange sex for
money and that ‘[she] never sell [her] body . . . No, I’ve never done that . . . .’” AC ¶ 31
(quoting United States v. Mohamud, No. 3:10cr260, Dkt. No. 2560, at 3-4 (M.D. Tenn. June 8,
2012)) (incorrectly cited as Dkt. No. 2650) (submitted as DOJ Br. Ex. I, Dkt. No. 41-1).

4

The district court held a detention hearing on in November 2011, after Mohamud filed a
motion to reconsider detention. See DOJ Br. Ex. D at 2. At this hearing, “the proof was that
Jane Doe 4 was discovered in the motel bed nude and after wakening, she began crying and
screaming. . . . Weyker testified that at the motel, Jane Doe 4 did not consent fo[r] anyone to
have sex with her.” AC ¶ 32 (quoting DOJ Br. Ex. I at 5). “Weyker additionally testified at the
[November 2011] detention hearing that the markings on Jane Doe Four’s vaginal area were the
result of ‘blunt force trauma.’ . . . As [the Tennessee Case district court judge] noted: ‘that phrase
is not in the nurse’s report.’” AC ¶ 33 (quoting DOJ Br. Ex. I at 5). “Weyker’s fabricated
evidence regarding Jane Doe Four led to Mohamud’s continued detention.” AC ¶ 34.
Around March 2012, a number of Mohamud’s co-defendants went to trial. AC ¶ 53.
Mohamud had moved to sever his case from their trial, and the district court granted the motion.
United States v. Mohamud, 3:10cr260, Dkt. Nos. 1051, 1395 (M.D. Tenn. Jan. 11, 2012 & Feb.
16, 2012) (Mohamud’s second motion to sever, and the district court order severing the charges
against him); see also AC ¶ 53 (“Mohamud’s trial was to begin after theirs.”). In that trial, six of
nine defendants were fully acquitted by the jury, but the jury convicted the other three defendants
on some charges. See AC ¶ 55. The district court then granted those three defendants’ Federal
Rule of Criminal Procedure 29 motions for judgments of acquittal, on the basis of a variance.
See AC ¶ 55; United States v. Adan, 913 F. Supp. 2d 555, 579 (M.D. Tenn. Dec. 19, 2012).
After that trial, Mohamud filed a sealed renewed motion for release based on changed
circumstances. United States v. Mohamud, No. 3:10cr260, Dkt. No. 2435 (M.D. Tenn. Apr. 26,
2012). On June 8, 2012, the district court granted his motion, concluding that “[w]ithout
evidence that [Mohamud] sexually trafficked a person in violation of federal law, the Court
cannot find clear and convincing evidence for this Court’s Order for the continued detention of

5

this Defendant.” AC ¶ 35 (quoting DOJ Br. Ex. I at 7). He was released on pretrial conditions
on June 15, 2012. AC ¶ 47. 3
The government had appealed the district court’s grant of the Rule 29 motions after the
April 2012 trial, and in March 2016, the appellate court affirmed the district court. AC ¶ 56
(citing United States v. Fahra, 643 Fed. Appx. 480 (6th Cir. 2012)). “In its opinion, before it
recounted the trial testimony and evidence, the [appellate court] noted ‘. . . that we start our
analysis from what is likely a fictitious story.’” AC ¶ 56 (quoting Fahra, 643 Fed. Appx. at 484).
After the appellate court’s opinion issued, the government moved to dismiss all
remaining charges against all remaining defendants, and the court granted the motion on March
10, 2016. AC ¶ 57. Mohamud was then “finally released from electronic home monitoring and
the other restrictions on his liberty.” AC ¶ 58.
Like Osman, Mohamud 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,” AC ¶ 39; that Weyker manipulated Jane Doe witnesses,
including Jane Doe Four, into lying, e.g., AC ¶¶ 36, 38, 60; that Weyker was motivated to falsify
evidence by a desire for professional success, see AC ¶ 16; and that indications of Weyker’s
fabrication included questions surrounding the Jane Does’ ages, AC ¶ 42, and the results of the
Spring 2012 trial, AC ¶ 55. Also like Osman, Mohamud’s complaint repeatedly cites to remarks
about Weyker and the case by the district and appellate courts in the Tennessee Case, including a
memorandum discussing Mohamud’s detention. E.g., AC ¶¶ 33, 40 n.1, 56, 63-64.
3

On May 9, 2013, the district court filed a memorandum providing reasoning for its
release of multiple defendants, including Mohamud. See United States. v. Mohamud, No.
3:10cr260, 2013 WL 1935506 (M.D. Tenn. May 9, 2013). The memorandum does not appear to
provide any additional reasoning specific to Mohamud, who had been out on conditions since
June 2012. See, e.g., No. 3:10cr260, Dkt. No. 3044 (M.D. Tenn. Feb. 1, 2013) (order excusing
Mohamud from attending a status conference in light of the fact that “he lives in Minnesota”).
6

IV.

SUMMARY OF ARGUMENTS

A summary of the parties’ arguments is included in Section IV of the Court’s
simultaneously filed opinion in Yusuf v. Weyker, et al., No. 16cv1012. Mohamud 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), Mohamud’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
testimony and other erroneous evidence falsely manufactured by Weyker and Bandemer, no
probable cause existed to detain or otherwise restrict Mohamud’s liberty.” AC ¶ 1; see also AC
¶¶ 60-61. 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 Mohamud’s. Id. at 920 n.8. Thus, because he challenges his pretrial detention,
not a conviction and ensuing incarceration, his claim is under the Fourth Amendment.
Mohamud’s claims for substantive due process violations under the Fifth or Fourteenth
Amendments therefore fail. See Manuel, 137 S. Ct. at 919-20; Albright v. Oliver, 510 U.S. 266,
271 (1994) (plurality opinion). 4

4

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.

7

Under the Fourth Amendment analysis, the Court must decide whether Mohamud
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. 5
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
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).

5

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 Mohamud’s claim should be brought under § 1983
or Bivens. See Osman Op. 13-17.
8

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 and citation omitted).
a. Analysis of Mohamud’s Claim Under the Fourth Amendment
In considering whether Mohamud plausibly alleges a Fourth Amendment violation, the
Court disregards mere conclusory statements, focuses on well-pleaded factual allegations, 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.
Mohamud’s core allegations are 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
separate Sixth Circuit Court of Appeals opinions concerning the Tennessee Case, some of which
both Osman and Mohamud cite. See Osman Op. 25-33. For instance, like Osman, Mohamud
points to the results of the Spring 2012 trial. See AC ¶ 55. Also like Osman, he quotes the Sixth
Circuit opinion affirming the grant of the Rule 29 motions. See AC ¶¶ 40 n. 1, 56. As an

9

example, they both quote the Fahra opinion’s noteworthy description of “the story the
prosecution presented at trial” as “likely a fictitious story.” See AC ¶ 56 (quoting Fahra, 643
Fed. Appx. at 484). He also, like Osman, cites to footnote 10 of the district court’s order in
Adan, 913 F. Supp. 2d 555 (M.D. Tenn. Dec. 19, 2012), which mentioned “serious issues” and
“concern” relating to Weyker’s testimony. AC ¶ 64.
Mohamud also cites more extensively to court documents relating to his detention
hearings, which Osman cites once. Compare Mohamud AC ¶¶ 30-33, 35, 63, with Osman SAC
¶ 46. See also GBBS DOJ Opp. 24. He highlights testimony by Jane Doe Four before the grand
jury in July and October 2010 in which she gave inconsistent testimony, including initially
failing to identify Mohamud, and ultimately denied ever participating in sex trafficking or
knowing about others’ participation. AC ¶¶ 30-31, 35. As Weyker and Bandemer point out, that
Jane Doe Four gave apparently exculpatory testimony before the grand jury seems to weigh
against an inference that Weyker coached or manipulated Jane Doe Four into giving false
testimony to indict Mohamud and others. See DOJ Br. 80, Dkt. No. 40. But the fact remains
that the grand jury indicted Mohamud in the sex-trafficking conspiracy after hearing Jane Doe
Four and other witnesses’ testimony, which at least possibly supports Mohamud’s theory that the
fabrication of evidence about a broader sex-trafficking conspiracy created the false appearance of
probable cause as to him because of the nature of conspiracy charges. To this point, it is worth
noting that the district court found, and the appellate court agreed, that the broad nature of the
conspiracy charges caused “significant prejudice” to the defendants who stood trial in April
2016. Fahra, 643 Fed. Appx. at 493. Although Weyker and Bandemer did not make the
prosecutorial charging decisions, it is alleged here that that they “beguiled” the prosecutors into
pursuing “the fabricated case” of the widespread conspiracy. AC ¶¶ 40-41. Mohamed includes

10

well-pleaded facts to support his allegations, and the Court must accept his factual allegations as
true and construe the pleaded facts in his favor at this procedural stage. Greenman v. Jessen, 787
F.3d 882, 885 & n.2 (8th Cir. 2015).
For example, Mohamed calls out a comment by the district court made in connection
with his second detention hearing, which at least arguably casts a shadow on the integrity of the
evidence about the Richfield events. See AC ¶ 33. At Mohamud’s November 2011 detention
hearing, the district court appeared to accept Weyker’s testimony “that Linda Waltham, the nurse
who administered the [sexual assault] examination [of Jane Doe Four in connection with the
Richfield event], concluded that based upon her training and experience these types of injuries
only occur when a victim suffers violent blunt force trauma during sexual assault.” DOJ Br. Ex.
D at 4. But six months later, after the 2012 trial netted no convictions, the district court noted in
its opinion granting Mohamud’s motion for reconsideration that “[a]lthough [O]fficer Weyker
testified that these markings were the result of ‘blunt force trauma’, that phrase is not in the
nurse’s report.” DOJ Br. Ex. I at 5; see AC ¶ 33. 6 This remark at least conceivably could be
viewed as demonstrating the court’s skepticism of Weyker’s role in fact-gathering regarding the
Richfield event.
Further, Mohamud specifically denies that he had non-consensual sex with Jane Doe
Four and denies that he engaged in any attempt to have her engage in commercial sex. He
alleges that he was never charged by the Richfield Police Department with any crime relating to
the Richfield events. And he alleges that in June 2012, the court ordered his release from
6

Some of the district court’s findings of fact regarding the Richfield event remained
unchanged from the November 2011 detention hearing to the June 2012 order reconsidering
Mohamud’s detention: “Jane Doe 4 was discovered in the motel bed nude and after wakening,
she began crying and screaming. There were used condoms in the room and Jane Doe’s panty
was on the motel floor.” DOJ Ex. I at 5. Moreover, the examination of Jane Doe Four revealed
multiple tears to her vagina. Id. at 5.
11

custody on the basis that there was not “evidence that [Mohamud] sexually trafficked a person in
violation of federal law . . . .” AC ¶ 35 (quoting DOJ Br. Ex. I at 7). This finding came after the
district court was presented with transcripts of Jane Doe Four’s grand jury testimony (to which
Mohamud did not have access at the November 2011 detention hearing, see Ex. I at 2) and after
the conclusion of the April 2012 trial of nine of his co-defendants.
In Osman’s case, the Court found that some of the quoted and referenced 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.
Mohamud was exclusively charged in sex-trafficking-conspiracy counts. Like Osman, in
addition to detailed references to particular remarks by the district and appellate court, Mohamud
has included some factual allegations more specifically relating to his case. Therefore,
consistent with the analysis in the Osman Opinion, see Osman Op. 17-20, 22-28, 35, the Court
finds that Mohamud’s allegations of a Fourth Amendment violation by Weyker in fabricating
evidence related to sex trafficking also survive Weyker’s motion to dismiss. The same caveats
that the Court noted in the Osman Opinion apply as well to Mohamud’s allegations.
Objecting to Mohamud’s references to Weyker testimony, Weyker and Bandemer argue
that witnesses are entitled to absolute immunity as to their testimony. DOJ Br. 79. But
witnesses are not entitled to absolute immunity to their activities outside of the courtroom and
preparation for testimony. Rehberg v. Paulk, 566 U.S. 356, 370 n.1 (2012). The Court does not
rely on Weyker’s testimony (or what of it has been cited in the complaint)—rather, the Court’s
focus is on the alleged implications of the district court’s decisions to comment on some of her
testimony.

12

Weyker and Bandemer also argue that the facts found by the district court about the
Richfield event, see note 6, supra, “more than establish arguable probable cause to indict
Mohamud and others on the sex-trafficking charges.” DOJ Br. 80. Drawing all reasonable
inferences in Mohamud’s favor, and taking into account Jane Doe Four’s grand jury testimony
that she never engaged in sex for money, the Court cannot conclude at this Rule 12 stage that
there was probable cause to indict or arrest Mohamud for sex trafficking in violation of 18
U.S.C. § 1591 after setting aside allegedly fabricated evidence related to the sex-trafficking
conspiracy. 7 Moreover, Mohamud was charged with participation in a multi-state, nearly tenyear-long sex-trafficking conspiracy involving dozens of co-conspirators. He alleges wellpleaded facts sufficient to infer at the Rule 12 stage that there was fabrication of evidence
tainting the probable cause findings as to the charged sex-trafficking-conspiracy offenses, which
were the only charges against him.
The same cannot be said for Mohamud’s allegations about Bandemer. His allegations as
to Bandemer are conclusory and lacking well-pleaded facts. And none of the judicial statements
that lend some plausibility to the allegations about Weyker refer to Bandemer in any way.
Mohamud 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
Mohamud also sues Bandemer and John Does 3-4 in their individual capacities as
supervisors. He alleges that they were deliberately indifferent to or approved Weyker’s and
7

After the trial of some of his co-defendants and Mohamud’s release from custody in
June 2012, he was again indicted in Counts 1 and 2 in a Third Superseding Indictment. See
United States v. Mohamud, No. 3:10cr260, Dkt. No. 2701 (M.D. Tenn. Aug. 22, 2012). Weyker
does not raise this point. Even if she did, the Court would not find this fact dispositive at this
stage in light of the allegations, supported by some well-pleaded facts including notable
comments by judicial officers, that fabricated evidence fooled the grand jury into indicting.
13

Bandemer’s alleged violations of his constitutional rights. AC ¶ 65.
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 Mohamud has not adequately alleged a direct
constitutional violation by Bandemer, the supervisory liability claims “automatically fail for lack
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, Mohamud’s complaint, which is 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, e.g., AC ¶¶ 8, 16; that the investigation was very
important to the St. Paul Police Department vice unit, see AC ¶ 36; and that “[b]y at least

14

February 15, 2012, these [supervisory] defendants had actual knowledge” of Weyker’s
fabrications based on a February 2012 memorandum-order at Dkt. No. 1392 and other district
court orders, AC ¶¶ 63-64, 66. Like Osman, Mohamed cites United States v. Mohamud, No.
3:10cr260, 2013 WL 1935506, at *11 n. 6 (M.D. Tenn. May 9, 2013), in which the district court
reiterated its reasoning for releasing Mohamed from custody, see note 3, supra, 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. AC ¶¶ 63-64.
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, Mohamud
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.
c. Municipal Liability
Mohamud 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.

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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). “Misconduct 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.
Mohamud does not adequately support his conclusory municipal liability allegations with
well-pleaded facts. 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 well-pleaded 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

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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. 38]
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. 44] is
GRANTED.
3. Plaintiff Bashir Yasin Mohamud’s Amended Complaint is DISMISSED WITH
PREJUDICE as to Defendants John Bandemer, John Does 3-4, and the City of St.
Paul.
4. Counts 1 and 5 of Plaintiff Bashir Yasin Mohamud’s 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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