Hassan v. Weyker et al

Filing 65

ORDER: (1) Defendants Heather Weyker and John Bandemer's Motion to Dismiss [Dkt. No. 39 ] is GRANTED. (2) Defendant City of Saint Paul's Motion for Judgment on the Pleadings [Dkt. No. 45 ] is GRANTED. (3) Plaintiff Muhiyadin Hussein Hassan's Amended Complaint is DISMISSED WITH PREJUDICE. (Written Opinion) Signed by Judge Joan N. Ericksen on August 9, 2017. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MUHIYADIN HUSSEIN HASSAN,
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. 16cv1911 (JNE/TNL)
ORDER

Defendants.
I.

INTRODUCTION

Plaintiff Muhiyadin Hussein Hassan alleges violations of his constitutional rights in an
investigation that led to his indictment by a federal grand jury and 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 Hassan’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. 39. 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. 45.
The investigation at the core of Hassan’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”). Hassan 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 Hassan’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. Hassan, coordinating
with the other plaintiffs represented his counsel, opposed the motions. See GBBS Pls.’ Opp. to
St. Paul Mot., Dkt. No. 50; GBBS Pls.’ Opp. to DOJ Mot. to Dismiss, Dkt. No. 53.
The Court held a hearing on Defendants’ motions on May 3, 2017, and now grants both
motions. 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
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Haney v.
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. 60. Pursuant to that order, Hassan filed an Amended Complaint [Dkt. No.
61] (“AC”), which is thus the operative complaint subject to these Rule 12 motions.
2

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 Hassan’s Amended Complaint and some facts gleaned from the Tennessee
Case record. 2
On October 20, 2010, Hassan was indicted in the Tennessee Case. AC ¶ 13. He was
charged in six counts. See Indictment (“Ind’t”), United States v. Hassan, No. 3:10cr260, Dkt.
No. 3 (M.D. Tenn. Oct. 20, 2010); see also SAC ¶ 13 (alleging that he was indicted on “charges
including conspiracy to engage in sex trafficking minor females for profit and for attempting to
obstruct the investigation of that alleged crime”) (emphasis added). 3 Two counts alleged
participation in a sex-trafficking conspiracy in violation of 18 U.S.C. § 1591(a) (Counts 1 and 2).
Two counts, Counts 3 and 4, alleged obstruction of justice. These counts implicated Hassan in
co-defendant Haji Osman Salad’s alleged attempt to hide his cell phone from authorities in order
to repress evidence; alleged that Hassan “had called” the sister of alleged victim-witness Jane
Doe Two “and attempted to talk to her;” and alleged that he “discussed a fabricated story” for
Salad to tell his attorney about a trip to Nashville that Salad, Jane Doe Two, and others took in
April 2009. See Ind’t ¶¶ 71, 78-80. Additionally, Count 15 alleged that from May 20, 2006,
through September 15, 2006, Hassan conspired to transport stolen money and goods across state
lines in violation of 18 U.S.C. § 2314. Ind’t ¶¶ 100, 104-06. Finally, Count 18 alleged that from
2

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

The indictment apparently incorrectly referred to him as “Muhiyadin Hassan Hussein.”
3

2007 through September 2010, he conspired to commit credit card fraud. E.g., Ind’t ¶¶ 117, 125,
150. First and second superseding indictments were filed that all included the same charges
against Hassan. See AC ¶ 16; United States v. Hassan, No. 3:10cr260, Dkt. Nos. 36, 591 (M.D.
Tenn. Nov. 3, 2010 & May 4, 2011).
The indictment included “scant allegations relating directly to Hassan.” AC ¶ 17.
“Hassan never conspired, engaged, or attempted to engage to have any Jane Doe perform
commercial sex. . . . Fabricated evidence formed the basis for these false allegations against
Hassan.” AC ¶ 19. Weyker and other defendants “concoct[ed] stories for putative victims like
Jane Doe Two and coach[ed] them to testify—albeit unbelievably and inconsistently—in support
of the Indictment.” AC ¶ 24.
In early 2012, as the parties in the Tennessee Case prepared for trial to begin in March,
the district court granted a motion to sever some of the counts, including Counts 15 and 18, to be
tried later. United States v. Hassan, No. 3:10cr260, Dkt. No. 1395 (M.D. Tenn. Feb. 16, 2012).
In addition, Hassan and some other defendants elected to be severed from the defendants
preparing for trial on sex-trafficking-related charges. United States v. Adan, 913 F. Supp. 2d
555, 559 (M.D. Tenn. 2012); see also AC ¶ 33 (“Hassan’s trial was to begin after theirs.”).
In that Spring 2012 criminal trial, the jury acquitted six defendants fully and acquitted
three defendants on some counts but convicted them on other counts. AC ¶ 35. The district
court then granted Federal Rule of Criminal Procedure 29 motions for judgments of acquittal by
the three convicted defendants, on the basis of a variance. See AC ¶ 35; Adan, 913 F. Supp. 2d
at 579.
After the trial, a Third Superseding Indictment was filed that named Hassan in eight
counts, including for conspiracy to transport stolen goods (renumbered Count 16), conspiracy to

4

commit credit card fraud (renumbered Count 19), and obstruction of justice (Count 3 and
renumbered Count 6). In addition to the sex-trafficking conspiracy charges in Counts 1 and 2,
this indictment for the first time also charged Hassan with substantive violations of 18 U.S.C.
§ 1591 for recruiting and attempting to recruit Jane Doe Two, a minor, to engage in commercial
sex (Counts 13 and 14). See United States v. Hassan, No. 3:10cr260, Dkt. No. 2701 (M.D. Tenn.
Aug. 22, 2012).
Hassan moved for release from custody, and on September 25, 2012, a magistrate judge
released him on bond with conditions. See AC ¶ 31; United States v. Hassan, No. 3:10cr260,
Dkt. No. 2855 (M.D. Tenn. Sept. 25, 2012).
In March 2016, the Sixth Circuit decided an appeal of the district court’s order granting
the Rule 29 motions. See AC ¶ 36; see also United States v. Fahra, 643 Fed. Appx. 480 (6th Cir.
Mar. 2, 2016). On March 8, 2016, the government moved to dismiss all remaining charges
against all remaining defendants, and on March 10, the district court granted the motion and
vacated all terms and conditions of supervised release that had been imposed. See AC ¶¶ 37-38;
United States v. Hassan, No. 3:10cr260, Dkt. Nos. 3796, 3798 (M.D. Tenn. Mar. 8 & 10, 2016).
Like Osman, Hassan 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 for sex trafficking,” AC ¶ 22; that Weyker manipulated and coerced
Jane Doe witnesses, including Jane Doe Two, into lying, e.g., AC ¶¶ 20, 24, 39; and that
indications of Weyker’s fabrication included her rough notes, AC ¶¶ 27, questions surrounding
Jane Doe Two’s age, e.g., AC ¶¶ 28-30, questions surrounding Jane Doe Two’s April 2009 trip
to Nashville, AC ¶¶ 21, 27, and the district court’s post-trial grant of the Rule 29 motions, AC
¶ 35. Also like Osman, Hassan’s complaint repeatedly cites to remarks about Weyker and the

5

case by the district and appellate courts in the Tennessee Case. AC ¶¶ 21, 23 n.1, 27, 42-43.
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. Hassan 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), Hassan’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
false testimony and other erroneous evidence manufactured by Weyker and Bandemer, no
probable cause existed to detain or otherwise restrict Hassan’s liberty.” AC ¶ 1; see also AC
¶ 40. 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 Hassan’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. Hassan’s claims for substantive due process violations under the
Fifth or Fourteenth Amendments therefore fail. See Manuel, 137 S. Ct. at 919-20; Albright, 510
U.S. at 271 (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.

6

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

5

Because § 1983 and Bivens claims are analyzed similarly, the Court does not reach the
question of whether Hassan’s claim should have been brought under § 1983 or Bivens. See
Osman Op. 13-17.
7

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 Hassan’s Claim Under the Fourth Amendment
In considering whether Hassan 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.
Hassan’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
separate Sixth Circuit Court of Appeals opinions concerning the Tennessee Case, some of which
both Osman and Hassan cite. See Osman Op. 25-33. 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
the Iqbal plausibility line. The Court notes that none of these judicial statements refer even

8

obliquely to Bandemer. The Court further found that the fact that Osman was also indicted on
charges of obstruction of justice relating to the prosecution of the allegedly fabricated sextrafficking-conspiracy case does not per se doom her Fourth Amendment claim. See Osman Op.
35-37. Hassan’s case, however, is different.
Weyker and Bandemer argue that even if Hassan plausibly alleges that Weyker fabricated
evidence material to the indictment for sex-trafficking-related charges, the fact that he was also
indicted in non-trafficking-related charges defeats his Fourth Amendment claim. Weyker and
Bandemer argue that Hassan fails to plausibly allege that there was not probable cause to arrest
him on the other crimes for which he was charged. See DOJ Br. 65-68. They point out in their
reply papers that Hassan and the other plaintiffs represented by the same counsel fail to address
this argument at all. DOJ Reply 31-32.
Hassan’s complaint does not expressly acknowledge that he was charged in Counts 15
and 18 with crimes unconnected to any alleged sex-trafficking, and as noted, his opposition
papers did not respond to Weyker and Bandemer’s argument that his Fourth Amendment claim
fails in light of those counts. 6 Hassan fails to plausibly allege—or even conclusorily state—that
there was no probable cause to indict and arrest him in November 2010 on Counts 15 or 18. The
indictment included specific allegations about Hassan in those counts. See, e.g., Ind’t ¶¶ 104,
125. For example, Count 15 alleges that in September 2006, Hassan and others travelled from
Tennessee to Columbus, Ohio, “for the purpose of burglarizing businesses to obtain money and
merchandise,” and that on September 13, 2006, members of the group entered a business in

6

Hassan does acknowledge the obstruction of justice charges in his complaint, see AC
¶ 13, but does not specifically allege that there was no probable cause to indict him on those
charges or dispute the acts attributed to him in those counts in the indictments. Regardless,
analysis of those charges is unnecessary, because he fails to allege a Fourth Amendment
violation with regard to the clearly non-sex-trafficking-related charges in Counts 15 and 18.
9

Columbus and stole over $8,000 worth of goods and cash. Ind’t ¶¶ 104-05. Hassan does not
allege that these allegations are false or that Weyker or Bandemer fabricated evidence to support
the indictments of him in those charges. The grand jury’s indictment of him on those charges
“conclusively determines the existence of probable cause” in those counts, Kaley v. United
States, 134 S. Ct. 1090, 1097 (2014) (citation omitted), at least absent any plausible allegations
that the indictments on those counts were tainted by fabrication of evidence. 7 Hassan’s more
general, conclusory allegations—e.g., that he would never have been detained absent fabricated
evidence, AC ¶ 40—cannot overcome the hurdle posed by his indictment in these counts. The
Court also notes the care with which Hassan alleges he “would never have been indicted on sex
trafficking charges had Weyker and Bandemer not fabricated evidence . . . .” AC ¶ 39 (emphasis
added). Finally, the Court cannot reasonably conclude from the results of the trial of other codefendants on other counts, or from the government’s dismissal of all charges after an adverse
appellate decision affirming the grant of Rule 29 motions on the basis of a variance, that there
was no probable cause to indict Hassan on any counts at all.
Therefore, Hassan’s complaint must fail. Even if there were no probable cause to arrest
him based on the allegedly spurious sex-trafficking-conspiracy charges, there is no Fourth
Amendment violation where there is probable cause to arrest “for the violation of some other
law.” Greenman, 787 F.3d at 889 (citation omitted); see also Devenpeck v. Alford, 543 U.S. 146,
153 (2004) (holding that there is no Fourth Amendment violation if there is probable cause to
arrest based on any criminal offense, even if the officer’s subjective reason for arresting was a
different and unrelated offense); Keil v. Triveline, 661 F.3d 981, 986 (8th Cir. 2011). He

7

The Court further notes that at least one of his co-defendants pleaded guilty to the
credit-card conspiracy charged in Count 18. See United States v. Nur, No. 3:10cr260, Dkt. No.
2870 (M.D. Tenn. Oct. 5, 2012).
10

therefore “has failed to ‘make out a violation of a constitutional right’ in the first instance.”
Greenman, 787 F.3d at 888; see also Keil, 661 F.3d at 986.
Taking as true Hassan’s allegations that Weyker fabricated the evidence supporting the
sex-trafficking charges, the Court is not unsympathetic to the argument that Hassan’s pretrial
detention in custody may have been harder because of those charges. See AC ¶ 54. But
detention comes in different forms and is a restraint on liberty in any form. See, e.g., Gerstein,
420 U.S. at 114 (“Even pretrial release may be accompanied by burdensome conditions that
effect a significant restraint of liberty.”).
Defendants Weyker and Bandemer are entitled to qualified immunity. Hassan has failed
to plausibly allege a constitutional violation. Moreover, as to Bandemer, there are no wellpleaded facts that would support an inference that he directly fabricated evidence.
b. Supervisory Liability
Hassan 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 AC ¶ 45.
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

11

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 Hassan has not adequately alleged a constitutional
violation by Weyker or Bandemer, the supervisory liability claims “automatically fail for lack of
an underlying constitutional violation.” 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, Hassan’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, see, e.g., AC ¶ 66; that the investigation was very
important to the St. Paul Police Department vice unit, AC ¶ 20; and that “[b]y at least 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
¶¶ 42-43, 45. Like Osman, Hassan cites 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.
AC ¶¶ 42-43.
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, Hassan does
not allege any other similar acts by Weyker or Bandemer before the Tennessee Case

12

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
Hassan 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). “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

13

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.
Hassan 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
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 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, because Hassan’s complaint
fails to plausibly allege a violation of his constitutional rights. The Court grants the Defendants’
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. 39]
is GRANTED.
2. Defendant City of Saint Paul’s Motion for Judgment on the Pleadings [Dkt. No. 45] is
GRANTED.

14

3. Plaintiff Muhiyadin Hussein Hassan’s Amended Complaint is DISMISSED WITH
PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: August 9, 2017

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

15