Calgaro v. St. Louis County et al

Filing 85

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that: 1. Calgaro's Motion for Summary Judgment 6 is DENIED; 2. Park Nicollet's Motion to Dismiss 15 is GRANTED; 3. E.J.K.'s Motion to Dismiss 24 is GRANTED; 4. Fairview's Motion to Dismiss 28 is GRANTED; 5. The School District's and Principal Johnson's Motion to Dismiss 31 is GRANTED; 6. St. Louis County's and Mirsch's Motion for Judgment on the Pleadings and Motion for Summary Judgment 34 are GRANTED; and 7. Calgaro's Complaint 1 is DISMISSED with prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 05/23/2017. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Anmarie Calgaro,

Case No. 16-cv-3919 (PAM/LIB)

Plaintiff,
v.
MEMORANDUM AND ORDER
St. Louis County, Linnea Mirsch,
Fairview Health Services,
Park Nicollet Health Services,
St. Louis County School District,
Michael Johnson, and E.J.K. 1,
Defendants.

This matter is before the Court on Plaintiff Anmarie Calgaro’s Motion for
Summary Judgment, Defendants St. Louis County’s and Linnea Mirsch’s Motions for
Judgment on the Pleadings and Summary Judgment, and Defendants Park Nicollet Health
Services’, Fairview Health Services’, St. Louis County School District’s, Michael
Johnson’s, and E.J.K.’s Motions to Dismiss. For the following reasons, Defendants’
Motions are granted and Calgaro’s Motion is denied.
BACKGROUND
E.J.K. is a 17-year-old transgender youth who identifies as female.

(Compl.

(Docket No. 1) ¶¶ 18, 32, 104, Ex. C.) She will turn 18 in less than two months. (Id.
¶ 3.) Calgaro is E.J.K.’s biological mother and has sole physical and joint legal custody
of E.J.K. (Id. ¶¶ 3, 44.)
1

Although referred to as J.D.K. in Calgaro’s Complaint, the Court uses the name, initials,
and pronouns consistent with E.J.K.’s female gender identity.

Sometime in 2015, E.J.K. moved out of Calgaro’s home in St. Louis County,
Minnesota and moved in with her biological father in St. Cloud. (Id. ¶¶ 3, 53.) Shortly
thereafter, E.J.K. moved out of her father’s home and began living with various family
and friends. (Id. ¶ 53.) Since moving out of her father’s home, E.J.K. has refused to
move back in with Calgaro. (Id.) Calgaro claims that she has always offered a home to
E.J.K. (Id. ¶ 50.)
E.J.K. currently lives on her own in St. Louis County. (Id. ¶ 18.) She attends the
Cherry School in the St. Louis County School District (the “School District”) and
enrolled herself in post-secondary educational opportunities at a local college. (Id. ¶ 14.)
On June 29, 2015, E.J.K. consulted a lawyer with Mid-Minnesota Legal Aid who
provided her with a letter that concluded she was legally emancipated under Minnesota
law. (Compl. Ex. A.) E.J.K. has never obtained a court order of emancipation. (Id.
¶ 38.)
Sometime before January 15, 2016, Park Nicollet and Fairview began providing
E.J.K. with medical treatment for a gender transition to the female gender. (Id. ¶¶ 10, 12,
Ex. C.)

Calgaro alleges that St. Louis County is providing E.J.K. with general

government assistance and paying for these medical services.

(Id. ¶¶ 54, 102.)

Sometime in 2016, Calgaro requested that Fairview and Park Nicollet provide her with
E.J.K.’s medical records, but they refused. (Compl. ¶¶ 113, 114, 118.) Also in 2016,
Calgaro requested that the School District allow her to participate in E.J.K.’s educational
decisions and to have access to E.J.K.’s educational records, but the School District
refused. (Id. ¶¶ 134, 135.)
2

On November 16, 2016, Calgaro filed this lawsuit against seven Defendants:
(1) St. Louis County; (2) Linnea Mirsch, individually and in her official capacity as
Interim Director of St. Louis County Public Health and Human Services; (3) Fairview;
(4) Park Nicollet; (5) the School District; (6) Michael Johnson, individually and in his
official capacity as Principal of the Cherry School (“Principal Johnson”); and (7) E.J.K.
(collectively, “Defendants”). Calgaro is suing Defendants under 42 U.S.C. § 1983 for
allegedly violating her Fourteenth Amendment procedural due process rights. Calgaro
alleges that Defendants terminated her constitutionally protected parental rights without
due process by determining E.J.K. emancipated without notifying her, providing E.J.K.
with medical services and government assistance without Calgaro’s consent, and refusing
to provide Calgaro with E.J.K.’s medical, governmental, and educational records.
Twelve days after filing a Complaint, Calgaro filed her Motion for Summary
Judgment. Park Nicollet, Fairview, the School District, Principal Johnson, and E.J.K.
each subsequently filed Motions to Dismiss. St. Louis County and Mirsch also filed a
Motion for Judgment on the Pleadings and a Motion for Summary Judgment.
DISCUSSION
A.

Motions to Dismiss and the Motion for Judgment on the Pleadings
To survive a motion to dismiss for failure to state a claim, 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)); see also Fed. R. Civ. P. 12(b)(6). A claim
bears facial plausibility when it allows the Court “to draw the reasonable inference that
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the defendant is liable for the misconduct alleged.” Id. When evaluating a motion to
dismiss, the Court must accept factual allegations as true, Gomez v. Wells Fargo Bank,
N.A., 676 F.3d 655, 660 (8th Cir. 2012), but it need not give effect to those that simply
assert legal conclusions, McAdams v. McCord, 584 F.3d 1111, 1113 (8th Cir. 2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements,” are insufficient to support a claim. Iqbal, 556 U.S. at 678. The same
standard that applies to a motion to dismiss under Rule 12(b)(6) applies to a motion for
judgment on the pleadings under Rule 12(c). Haney v. Portfolio Recovery Assocs.,
L.L.C., 837 F.3d 918, 924 (8th Cir. 2016) (per curiam).
1.

Emancipation

Throughout her 229-paragraph Complaint, Calgaro repeatedly alleges that
Defendants “determined [E.J.K.] emancipated.”

(See, e.g., Compl. ¶ 138.)

This

allegation is distracting for two reasons. First, Defendants legally cannot emancipate
E.J.K. In Minnesota, emancipation is an act of the parent and need not be in writing or in
express words.

In re Fiihr, 184 N.W.2d 22, 25 (Minn. 1971) (citation omitted).

“Whether a child has been emancipated must be determined largely upon the peculiar
facts and circumstances of each case and is ordinarily a question for the jury.” Id.
Calgaro does not dispute this. (See Compl. ¶ 40 (“Minnesota courts recognize that
[E.J.K.] as a minor child is not emancipated until a state court decides the minor child
[E.J.K.] is emancipated.”).) Calgaro also admits that E.J.K. has not obtained a court
order of emancipation. (Id. ¶ 38.) Defendants therefore did not emancipate E.J.K. and
Calgaro continues to have sole physical and joint legal custody of E.J.K. Second, even
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assuming Defendants determined E.J.K. emancipated—as the Court must do at this stage
of the litigation—Defendants’ emancipation determinations did not terminate Calgaro’s
parental rights. Only a court order can do so. Absent that, Calgaro’s parental rights over
E.J.K. remain intact.

The Court will therefore not further entertain Calgaro’s

characterization of Defendants’ actions as “determining E.J.K. emancipated,” except
when necessary to address one of Calgaro’s claims against St. Louis County.
2.

Fairview and Park Nicollet

To state a claim under § 1983, Calgaro must establish that Fairview and Park
Nicollet deprived her of a right secured by the Constitution or laws of the United States
and that the deprivation was committed under color of state law. Am. Mfrs. Mut. Ins. Co.
v. Sullivan, 526 U.S. 40, 49 (1999). Calgaro alleges that Fairview and Park Nicollet
deprived her of her constitutionally protected parental rights without due process by
providing E.J.K. with medical services without Calgaro’s consent and refusing to provide
Calgaro with E.J.K.’s medical records. (Compl. ¶¶ 11, 13, 188, 197.) Fairview and Park
Nicollet argue that they cannot be held liable under § 1983 because they did not act under
color of state law. Fairview and Park Nicollet are correct.
“Section 1983 secures most constitutional rights from infringement by
governments, not private parties.” Crumpley-Patterson v. Trinity Lutheran Hosp., 388
F.3d 588, 590 (8th Cir. 2004) (citation omitted). But private parties may be held liable
when they act under color of state law. Id. (citation omitted). A private party acts under
color of state law when they are a “willful participant in joint activity with the state.”

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Magee v. Trustees of Hamline Univ., Minn., 747 F.3d 532, 536 (8th Cir. 2014)
(quotations and citation omitted).
Fairview and Park Nicollet did not willfully participate in any joint activity with
the state. Fairview and Park Nicollet are private, non-profit corporations that provide
medical services to the public. Merely because they are extensively regulated by the state
and receive state funding does not mean that they willfully participate in joint activity
with the state. See Alexander v. Pathfinder, Inc., 189 F.3d 735, 740 (8th Cir. 1999).
Likewise, merely because Fairview and Park Nicollet provided E.J.K. with medical
services under Minn. Stat. § 144.341 does not mean they willfully participated in joint
activity with the state. See Sullivan, 526 U.S. at 52 (“Action taken by private entities
with the mere approval or acquiescence of the State is not state action.”). Because
Fairview and Park Nicollet did not willfully participate in joint activity with the state,
they did not act under color of state law. Calgaro therefore fails to state a claim against
Fairview and Park Nicollet upon which relief can be granted.
3.

The School District

Calgaro alleges that the School District deprived her of her constitutionally
protected parental rights by not allowing Calgaro to participate in E.J.K.’s educational
decisions and denying her access to E.J.K.’s educational records. (Compl. ¶¶ 14, 76,
134-38.) The School District argues that Calgaro has failed to plausibly allege that the
execution of a School District policy or custom caused the deprivation of Calgaro’s
parental rights. The School District is correct.

6

Local governmental bodies like the School District “may not be sued under § 1983
for an injury inflicted solely by its employees or agents.” Monell v. Dep’t of Soc. Servs.
of City of N.Y., 436 U.S. 658, 694 (1978). It is only when “execution of a government’s
policy or custom . . . inflicts the injury that the government as an entity is responsible
under § 1983.” Id.
Calgaro fails to provide any facts that the School District executed a policy or
custom that deprived Calgaro of her parental rights without due process. Instead, Calgaro
merely states in conclusory fashion that “[t]he School District’s policies, customs,
practices, or procedures (or lack of procedures), acting under the color of state law, were
the moving force behind the constitutional violations.” (Compl. ¶ 15.) But the “mere
invocation of the words ‘policies’ and ‘customs’ is insufficient to plead a Monell claim.”
Rickmyer v. Browne, 995 F. Supp. 2d 989, 1030 (D. Minn. 2014) (Nelson, J.). Calgaro
therefore fails to state a claim against the School District upon which relief can be
granted.
4.

Principal Johnson

Calgaro alleges that Principal Johnson also deprived her of her constitutionally
protected parental rights by not allowing Calgaro to participate in E.J.K.’s educational
decisions and denying her access to E.J.K.’s educational records. (Compl. ¶¶ 76, 136,
137.) Principal Johnson argues that he is entitled to qualified immunity. Principal
Johnson is correct.
Qualified immunity applies unless the government official’s conduct “violated a
clearly established constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232 (2009).
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The purpose of qualified immunity is to “give government officials breathing room to
make reasonable but mistaken judgments about open legal questions.” Ashcroft v. alKidd, 563 U.S. 731, 743 (2011).
The Eighth Circuit has explicitly left open the question “whether and to what
extent the fundamental liberty interest in the custody, care, and management of one’s
children mandates parental access to school records.” Schmidt v. Des Moines Pub. Sch.,
655 F.3d 811, 819 (8th Cir. 2011). The only other circuit to have ruled on this issue has
held that a noncustodial parent does not have a protected liberty interest in receiving their
children’s school records. Crowley v. McKinney, 400 F.3d 965, 968-71 (7th Cir. 2005).
Because this existing precedent does not place the constitutional question “beyond
debate,” Principal Johnson is entitled to qualified immunity. Ashcroft, 563 U.S. at 741.
5.

St. Louis County

Calgaro alleges that St. Louis County deprived her of her constitutionally
protected parental rights without due process by refusing to provide Calgaro with E.J.K.’s
governmental records, providing E.J.K. with general government assistance without
Calgaro’s consent, and providing E.J.K. with medical assistance without Calgaro’s
consent. St. Louis County has moved for judgment on the pleadings regarding the
general government assistance and governmental records claims.

St. Louis County

argues that Calgaro has failed to allege that a St. Louis County policy or custom deprived
her of her parental rights without due process. St. Louis County is correct, but not
exactly for the reasons it argues.

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Like the School District, St. Louis County “may not be sued under § 1983 for an
injury inflicted solely by its employees or agents.” Monell, 436 U.S. at 694. It is only
when “execution of a government’s policy or custom . . . inflicts the injury that the
government as an entity is responsible under § 1983.”

Id.

Furthermore, when a

municipality is acting under compulsion of state or federal law, “it is the policy contained
in that state or federal law, rather than anything devised or adopted by the municipality,
that is responsible for the injury.” Bethesda Lutheran Homes & Servs., Inc. v. Leean,
154 F.3d 716, 718 (7th Cir. 1998). Although the Eighth Circuit has not decided whether
to adopt this common-sense limitation on municipal liability under § 1983, see Slaven v.
Engstrom, 710 F.3d 772, 781 n.4 (8th Cir. 2013), every circuit to have ruled on this issue
has done so.

See Vives v. City of New York, 524 F.3d 346, 353 (2d Cir. 2008)

(collecting and analyzing cases).
St. Louis County provided E.J.K. with general government assistance under Minn.
Stat. § 256D.03, which provides that every county “shall provide general assistance to
persons residing within its jurisdiction who meet the need requirements of sections
256D.01 to 256D.21.” Minn. Stat. § 256D.03, subd. 1. St. Louis County argues that
because it is required to provide general government assistance to E.J.K. under this
statute, it is the policy of the state of Minnesota, rather than St. Louis County, that
allegedly deprived Calgaro of her constitutionally protected parental rights without due
process. But the state does not require St. Louis County to provide E.J.K. with general
assistance.

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Minn. Stat. 256D.03 requires St. Louis County to provide E.J.K. with general
government assistance if she meets the need requirements of sections 256D.01 to
256D.21. E.J.K. meets those need requirements if she does not have adequate income
and is “a child under the age of 18 who is not living with a parent, stepparent, or legal
custodian, and only if: the child is legally emancipated or living with an adult with the
consent of an agency acting as a legal custodian . . . .” Minn. Stat. § 256D.05, subd.
1(a)(10). For purposes of this clause:
‘legally emancipated’ means a person under the age of 18 years who: (i) has
been married; (ii) is on active duty in the uniformed services of the United
States; (iii) has been emancipated by a court of competent jurisdiction; or
(iv) is otherwise considered emancipated under Minnesota law, and for
whom county social services has not determined that a social services case
plan is necessary, for reasons other than the child has failed or refuses to
cooperate with the county agency in developing the plan.
Id. As previously discussed, E.J.K. has not been emancipated by a Minnesota court. And
the other three ways E.J.K. could be considered legally emancipated under the statute are
likewise inapplicable.

Thus, it is not the policy contained in the state law that is

responsible for the alleged constitutional deprivation, rather it is St. Louis County’s
decision to provide E.J.K. with general government assistance, although not required to
do so, that allegedly deprived Calgaro of her constitutionally protected parental rights
without due process.
This technicality, however, does not save Calgaro’s general assistance claim
against St. Louis County. Calgaro still fails to allege any specific facts that St. Louis
County has a policy or custom that provides non-emancipated minors with general
government assistance in contradiction of state law. For example, Calgaro does not
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allege that St. Louis County has ever provided general government assistance to a nonemancipated minor before doing so with E.J.K. Nor does Calgaro allege that St. Louis
County has ever provided any individual with government assistance in contradiction
with state law. Instead, Calgaro once again merely alleges in conclusory fashion that “St.
Louis County’s policies, customs, practices, or procedures (or lack of procedures), acting
under the color of state law, were the moving force behind the constitutional violations
asserted in this Complaint.” (Compl. ¶ 5.) Such a conclusory allegation is insufficient to
support Calgaro’s general government assistance claim against St. Louis County. See
Rickmyer, 995 F. Supp. 2d at 1030. Calgaro’s claim concerning St. Louis County’s
refusal to provide her with E.J.K.’s governmental records fails for the same reason.
6.

Mirsch

Calgaro fails to state a claim against Mirsch upon which relief can be granted
because Calgaro fails to allege that Mirsch was personally involved in depriving Calgaro
of her parental rights without due process. To establish Mirsch’s personal liability under
§ 1983, Calgaro must allege “specific facts of personal involvement in, or direct
responsibility for, a deprivation of [her] constitutional rights.” Clemmons v. Armontrout,
477 F.3d 962, 967 (8th Cir. 2007) (quotations and citation omitted). Calgaro utterly fails
to do this.
Calgaro mentions Mirsch only twice in her Complaint. (Compl. ¶¶ 8-9.) Calgaro
alleges that Mirsch is the interim director of the St. Louis County Health and Human
Services Department and that she is the final decision- and policy-maker in the
department. (Id. ¶ 8.) Calgaro also alleges that Mirsch is an agent, representative, or
11

employee of the department, and as such is acting under color of state law. (Id. ¶ 9.)
These two general allegations do not come close to alleging specific facts of Mirsch’s
personal involvement in, or direct responsibility for, a deprivation of Calgaro’s
constitutional rights. Calgaro therefore fails to state a claim against Mirsch upon which
relief can be granted.
7.

E.J.K.

Calgaro stops short of making the absurd argument that E.J.K. deprived Calgaro of
her parental rights without due process while acting under color of state law. Calgaro
merely argues that E.J.K. is a required party who must be joined in the action because
E.J.K. “claims an interest relating to the subject of the action and is so situated that
disposing of the action may as a practical matter impair or impede the person’s ability to
protect the interest.” Fed. R. Civ. P. 19(a)(1)(B)(i). Although E.J.K. likely is a required
party under Rule 19, because Calgaro’s claims against all other Defendants fail, any
claims she might raise against E.J.K. are likewise dismissed.
B.

Motions for Summary Judgment
Summary judgment should be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The moving party bears “the initial responsibility of
informing the . . . court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotations
12

omitted). Where the moving party makes such a showing, the burden shifts to the
nonmoving party, who must demonstrate the existence of specific facts in the record that
create a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). A party opposing a properly supported motion for summary judgment may not
rest upon mere allegations or denials and must do more than simply show that there is
some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986).
1.

St. Louis County

St. Louis County moved for summary judgment on Calgaro’s allegation
concerning government assistance of medical payments because the state of Minnesota,
not St. Louis County, provided E.J.K. with that assistance. (See Waldriff Decl. (Docket
No. 39) ¶¶ 6-7.) Calgaro does not dispute this. In fact, Calgaro utterly fails to respond to
St. Louis County’s Motion for Summary Judgment. (See generally Pl.’s Opp’n Memo.
(Docket No. 65).) This allegation is therefore deemed abandoned and summary judgment
is appropriate. See Truong v. Hassan, No. 13cv2947, 2015 WL 2341979, at *7 (D. Minn.
May 14, 2015) (Montgomery, J.) (considering state-law claims abandoned after plaintiff
failed to respond in his opposition memorandum to defendant’s summary judgment
motion).
2.

Calgaro

Because her claims are meritless, Calgaro is not entitled to summary judgment.

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CONCLUSION
Calgaro has failed to plausibly allege any § 1983 claims against Defendants.
Accordingly, IT IS HEREBY ORDERED that:
1.

Calgaro’s Motion for Summary Judgment (Docket No. 6) is DENIED;

2.

Park Nicollet’s Motion to Dismiss (Docket No. 15) is GRANTED;

3.

E.J.K.’s Motion to Dismiss (Docket No. 24) is GRANTED;

4.

Fairview’s Motion to Dismiss (Docket No. 28) is GRANTED;

5.

The School District’s and Principal Johnson’s Motion to Dismiss (Docket
No. 31) is GRANTED;

6.

St. Louis County’s and Mirsch’s Motion for Judgment on the Pleadings and
Motion for Summary Judgment (Docket No. 34) are GRANTED; and

7.

Calgaro’s Complaint (Docket No. 1) is DISMISSED with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 23, 2017

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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