Bellino v. Grinde et al
Filing
48
ORDER ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S MOTION TO AMEND. Based on the foregoing and on all of the files, records, and proceedings herein, the Motion to Dismiss is GRANTED and the Motion to Amend is DENIED. Accordingly, IT IS HEREBY ORDERED THAT Plaintiff's amended complaint, with respect to its federal claims, is DISMISSED WITH PREJUDICE. Plaintiff's negligence claim is DISMISSED WITHOUT PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Nancy E. Brasel on 1/30/2019.
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DANIEL BELLINO,
Plaintiff,
v.
JESSICA GRINDE,
Defendant.
Case No. 18‐CV‐1013 (NEB/LIB)
ORDER ON DEFENDANT’S MOTION
TO DISMISS AND PLAINTIFF’S
MOTION TO AMEND
This matter comes before the Court on Defendant Jessica Grinde’s Motion to
Dismiss [ECF No. 22] and Plaintiff Daniel Bellino’s Motion to Amend [ECF No. 38]. On
September 14, 2018, Grinde filed her Motion to Dismiss. [ECF No. 22.] In lieu of
responding to the Motion to Dismiss, Bellino filed a Second Amended Complaint [ECF
No. 32] on October 5, 2018. The Court ordered that the Second Amended Complaint be
stricken without prejudice as having been filed in error, because it failed to comply with
Federal Rule of Civil Procedure 15(a). [See ECF No. 33.] Bellino thereafter filed his Motion
to Amend on October 26, 2018 [ECF No. 38] and filed his response to Grinde’s Motion to
Dismiss on November 2, 2018 [ECF No. 44]. For the reasons stated below, the Court grants
the Motion to Dismiss and denies the Motion to Amend.
BACKGROUND
On October 23, 2014, Plaintiff Daniel Bellino was arrested and charged with fifth
degree drug possession in Cass County, Minnesota. [ECF No. 15 (“First Am. Compl.”) at
¶18.] Bellino appeared in Cass County District Court on a First Appearance before Cass
County District Judge Jana Austed on October 24, 2014. (Id., ¶23.) Judge Austad set bail
at $10,000 with conditions or $30,000 without conditions and ordered a drug test to be
completed. (Id., ¶¶ 24‐25.) Bellino was unable to post bail and remained in the Crow Wing
County Jail as a result. (Id., ¶32.)
At the time, Bellino was on probation for a separate offense in Beltrami County.
(Id., ¶¶22, 33.) Defendant Jessica Grinde was Bellino’s probation officer for the Beltrami
County offense and placed Bellino on a hold for a suspected probation violation due to
the Cass County charge. (Id., ¶22.) The public record shows Beltrami County District
Court, after reviewing the Violation Report and Grinde’s recommendation, issued an
order on October 29, 2014 that Bellino be apprehended on a probation hold. [State v.
Bellino, No. 04‐CR‐13‐1312, Index #4 (Beltrami County Dist. Ct.); Jonassen Aff., Exs. C‐D.]1
On December 11, 2014, Bellino alleges he was informed that his Cass County
charges would be dismissed in exchange for Bellino’s son pleading guilty to the fifth‐
The district court may take judicial notice of public records and may thus consider them
on a motion to dismiss. Faibisch v. Univ. of Minn., 304 F.3d 797, 802–03 (8th Cir. 2002). Cass
County Court records are a matter of public record, and accordingly, can be properly
considered by the district court in ruling on a motion to dismiss. See Porous Media Corp.
v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
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degree possession charge. (First Am. Compl., ¶31.) Bellino further alleges that as of
December 11, 2014, the Cass County charge was dismissed and he should have been
transferred to Beltrami County to “deal with his probation hold.” (Id., ¶¶31–33.) Thus,
according to the Complaint, Beltrami County’s failure to transfer Bellino resulted in an
additional 27 days of detention in Crow County, to January 8, 2015.2 (Id., ¶34.)
Public records reveal the Cass County charge was dismissed not in December, but
on January 7, 2015. [State v. Bellino, No. 11‐CR‐14‐1923, Index #18 (Cass County Dist. Ct.);
Jonassen Aff., Exs. A‐B.] Bellino was released from Crow Wing County Jail the following
day, on January 8, 2015. (First Am. Compl., ¶45.) 3
Bellino sued Grinde, alleging Fourth and Fourteenth Amendment violations
under 42 U.S.C. § 1983. (Id., ¶¶2, 63, 68.) Bellino also brought a state law claim for
negligence. (Id., ¶73.)
Bellino also alleges that on January 7, 2015 he received a letter dated October 24, 2014
stating that his field urine test showed a negative —or clean — result. (Id., ¶¶36–37.)
Bellino asserts that Grinde knew of the test results on or about October 24, 2014. (Id.,
¶41.)
3 The Beltrami County probation hold was dismissed after the Cass County charges
were dismissed. Public record shows that on January 16, 2015, the Beltrami County
District Court issued an order quashing the warrant and dismissing the probation
violation after “review of the Violation Report dated January 7, 2015, and in view of the
agent’s recommendation.” [State v. Bellino, No. 04‐CR‐13‐1312, Index #12; Jonassen Aff.,
Ex. E.]
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ANALYSIS
I.
Motion to Dismiss
The Court takes notice that Grinde’s motion to dismiss is technically unopposed,
because Bellino failed to timely serve or file a response.4 Opposition papers were filed
late, however, and the Court analyzes Grinde’s motion to dismiss and the opposition
papers on their merits.
A.
Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant
may move to dismiss a claim if, on the pleadings, a party has failed to state a claim upon
which relief may be granted. In reviewing a motion to dismiss for failure to state a claim
upon which relief can be granted under Rule 12(b)(6), the Court must accept as true all
factual allegations and view them in the light most favorable to the plaintiff. Schaller Tel.
Co. v. Golden Sky Sys., Inc., 298 F.3d 736, 740 (8th Cir. 2002). When “addressing a motion
to dismiss, the court may consider the pleadings themselves, materials embraced by the
pleadings, exhibits attached to the pleadings, and matters of public record.” Mulvenon v.
Greenwood, 643 F.3d 653, 656–57 (8th Cir. 2011) (quotation and citation omitted).
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” To state a
Bellino’s response to Grinde’s motion to dismiss was due on October 5, 2018. [D. Minn.
L.R.7.1(c)(2).] He filed a response to Grinde’s motion on November 2, 2018—28 days
past due, without attempting to obtain an extension. [ECF No. 44.]
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claim, a plaintiff must plead facts sufficient to “raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2008); see also Schaaf v. Residential
Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). Whether a complaint states a claim is a matter of
law. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). A motion to dismiss must be
granted when the complaint does not allege “enough facts to state a claim to relief that is
plausible on its face” rather than merely conceivable. Twombly, 550 U.S. at 570; Iqbal, 556
U.S. at 678–79.
B.
Bellino’s claims are barred by Heck v. Humphrey.
Grinde argues Bellino’s 42 U.S.C. § 1983 claims are barred by the favorable
termination rule established in Heck v. Humphrey, 512 U.S. 477 (1994) because Bellino has
not established that his incarceration has been declared invalid or unlawful. In Heck v.
Humphrey, the Supreme Court held that “in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm caused by the actions
whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of habeas
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corpus.” Id. at 486–87. A prisoner’s claim for damages is not cognizable under § 1983 if it
implies the invalidity of his conviction or confinement, unless the conviction or sentence
has already been invalidated. Id. at 487.
The Eighth Circuit has interpreted Heck to “impose a universal favorable
termination requirement on all § 1983 plaintiffs attacking the validity of their conviction
or sentence,” Newmy v. Johnson, 758 F.3d 1008, 1011–12 (8th Cir. 2014), and has explicitly
declined to recognize an exception for plaintiffs who are no longer incarcerated. Enzti v.
Redmann, 485 F.3d 998, 1003 (8th Cir. 2007) (relying on Heck, 512 U.S. at 490 n.10 (“[T]he
principle barring collateral attacks—a longstanding and deeply rooted feature of both the
common law and our own jurisprudence—is not rendered inapplicable by the fortuity
that a convicted criminal is no longer incarcerated.”)). In Newmy v. Johnson, a plaintiff
brought a § 1983 claim against his parole officer, claiming the officer made a false report
resulting in his parole revocation. 758 F.3d at 1009. At the time Newmy bought his § 1983
claim, he was no longer incarcerated based on the underlying parole revocation. Id. The
court found his claim barred by Heck, extending its Entzi ruling that Heck is not limited to
plaintiffs in custody. Newmy, 758 F.3d at 1011.
At oral argument, Bellino argued that Heck’s favorable termination rule does not
apply to pretrial detainees. Here, however, Bellino is challenging his detention as a
probationer, stating the detention was the probation officer’s fault because she placed the
probation hold on him. Bellino mischaracterizes himself as a pretrial detainee. Instead,
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Bellino is challenging his post‐trial incarceration for a probation violation, which falls
within Entzi and Newmy. Because Bellino is calling into question the decision to place him
on a probation hold, he is challenging the validity of his continued incarceration as a
probationer, not a pre‐trial detainee.5 Heck bars Bellino’s § 1983 claims against Grinde.6
C.
Bellino fails to state a claim under the Fourth Amendment.
Grinde also argues that Bellino fails to state a cognizable claim under the Fourth
Amendment.7 The Fourth Amendment protects “against unreasonable searches and
The Court also finds persuasive other courts’ rulings that Heck extends to situations
involving probation revocation. See Beck v. City of Muskogee Police Depʹt, 195 F.3d 553, 557
(10th Cir. 1999) (noting the circuit has extended Heck to situations involving probation
revocation); Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) (providing that § 1983
claims challenging revocation of probation are precluded under Heck until the revocation
is invalidated); see also Eaton v. McGee, 113 F. Appʹx 9, 10 (5th Cir. 2004) (finding
appellant’s complaint challenged the validity of his probation revocation and because he
had not shown the revocation had been set aside, his claims were Heck‐barred); Jackson v.
Vannoy, 49 F.3d 175, 177 (5th Cir. 1995) (same); Baskett v. Papini, 245 F. Appʹx 677, 678 (9th
Cir. 2007) (affirming dismissal of a § 1983 action “as Heck‐barred because his allegations
necessarily call into question the validity of the probation revocation”).
6 Although the Eighth Circuit has not directly ruled on the applicability of Heck to pretrial
detainees, other circuits have considered the issue and have found the Heck bar to apply
equally. See Thomas v. Pugh, 9 F. Appʹx 370, 372 (6th Cir. 2001) (citing Alvarez‐Machain v.
United States, 107 F.3d 696, 700–01 (9th Cir. 1996); Hamilton v. Lyons, 74 F.3d 99, 102–03
(5th Cir. 1996)); but see Grider v. Cook, 522 F. App’x 544, 547 (11th Cir. 2013) (noting that
whether the “Heck bar applies to pretrial detainees” is “a proposition drawn into question
by the Supreme Court in Wallace v. Kato, 549 U.S. 384, 393 (2007)”). Since Bellino is not
positioned as a pretrial detainee in his claim against Grinde, the Court need not decide
the issue.
7 The Court agrees that the proper analysis for Bellino’s claims fall under the Fourth
Amendment and not the Fourteenth Amendment. Albright v. Oliver, 510 U.S. 266, 273
(1994) (stating where a particular Amendment provides an explicit source of
constitutional protection, that Amendment, not substantive due process, must be the
guide for analyzing a claim); Graham v. Connon, 490 U.S. 386, 395 (1989) (providing that
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seizures” of the person. U.S. Const. amen. IV. Fourth Amendment seizures are reasonable
if they are based on probable cause. Bailey v. U.S., 568 U.S. 186, 192 (2013) (quotation and
citation omitted). Bellino alleges Grinde violated his right to be “free from continued
incarceration as a pretrial detainee, when the state had dismissed the charges against him
and there were no other probationary conditions supporting his continued
incarceration.” (First Am. Compl., ¶64.)
The Court agrees that Bellino fails to plead sufficiently a § 1983 claim under the
Fourth Amendment. Bellino concedes he was incarcerated due to the new Cass County
charge for which he could not post bail. Bellino remained incarcerated until January 8,
2015, one day after the charge was ultimately dismissed. Grinde submitted
recommendations to Beltrami County District Court on January 7, 2015 that the probation
violation be dismissed. (Jonassen Aff., Ex. E.)8 Thus, it is not plausible that Grinde had
any responsibility related to Bellino’s incarceration. It is irrelevant whether Grinde had
any knowledge of Bellino’s son’s plea agreement, because the public record states the
all claims regarding a “seizure” of a citizen should be analyzed under the Fourth
Amendment, rather than under a “substantive due process” approach). As such, the
Court will only analyze Bellino’s claim pursuant to the Fourth Amendment.
8 For this reason, Bellino’s argument that the charge being dismissed on January 7, 2015
instead of December 11, 2014 “is a distinction without a difference” fails. [See ECF No.
44 at 4.] Grinde immediately recommended dismissing the probation violation once the
Cass County charge was dismissed.
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Cass County charge was actually dismissed on January 7, 2015. Accordingly, Bellino has
not sufficiently pled facts indicating Grinde violate Bellino’s Fourth Amendment rights.
D. Grinde is immune from the claims.
Grinde further argues that even if Bellino’s claims were sufficiently pled, she is
immune from liability. Government officials may be entitled to immunity from suits for
damages under either absolute or qualified immunity. Officials are entitled to absolute
immunity when they perform functions closely associated with the judicial process,
Cleavinger v. Saxner, 474 U.S. 193, 200 (1985), whereas qualified immunity “shields
government officials performing discretionary functions from civil liability if their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Ray v. Pickett, 734 F.2d 370, 371 (8th Cir. 1984)
(citation committed). Courts must take a functional approach when analyzing immunity
law. Therefore, immunity is extended based on the nature of responsibilities, and not on
one’s rank in government. Id. at 372. “Under this approach, certain adjudicatory or
prosecutorial functions of a probation officer may be entitled to absolute immunity, while
other functions, more administrative, supervisory, or investigative in nature, may
warrant only a qualified immunity.” Id. (citations omitted). For the reasons stated below,
Grinde is entitled to both absolute and qualified immunity.
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1.
Absolute Immunity
In Anton v. Getty, the Eighth Circuit held that “probation officers are entitled to
absolute immunity when they ‘perform discretionary tasks that play an integral part in
the decision making process,’ such as when they ‘evaluate facts, draw legal conclusions,
and make recommendations.’“ Jensen v. Jorgenson, 2005 WL 2412379, at *8 (D.S.D. Sept.
29, 2005) (quoting Anton, 78 F.3d 393, 396 (8th Cir. 1996)). In Anton, a parolee argued that
the probation officers violated his constitutional rights when they rejected his parole plan
and recommended parole be delayed. 78 F.3d at 396. The Court found probation officers
were entitled to absolute immunity because the information and recommendation they
provided played a significant part in the decision‐making process. Id. The Court
distinguished its holding from a prior decision in Ray v. Pickett, 734 F.2d 370 (8th Cir.
1984) where a probation officer was entitled to only qualified immunity because he was
not performing an adjudicatory function when he filed a parole‐violation report. Id. at
396, n. 5. Unlike the officers in Anton, whose recommendations bore an intimate
relationship to the ultimate decision to delay parole, the “effect of filing a parole‐violation
report was merely to trigger an inquiry by another officer that may or may not lead to an
administrative proceeding.” See id. (quoting Ray, 734 F.2d at 373).
Grinde submitted violation reports and made recommendations based on her
evaluation of the situation and determination that the new charge warranted a probation
violation. Public records establish that the Beltrami County Court relied on Grinde’s
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reports and recommendations when it issued – and then ultimately quashed – the
warrant. The facts here indicate Grinde’s actions were more akin to those in Anton, in that
her tasks were intertwined with the ultimate decision‐making process, and therefore she
is entitled to absolute immunity.
2.
Qualified Immunity
Grinde is also entitled to dismissal based on qualified immunity. Qualified
immunity requires a two‐part analysis. Munz v. Michael, 28 F.3d 795, 799 (8th Cir. 1994).
First, the Court must determine whether the plaintiff has alleged the violation of a
constitutional right. Id. Second, the Court must determine whether that right was clearly
established at the time of the alleged violation. Id. For the law to be clearly established,
“[i]t is only necessary that the unlawfulness of the officialʹs act [be] apparent in view of
pre‐existing law.” Id. (quoting Hall v. Lombardi, 996 F.2d 954, 958 (8th Cir. 1993)). Further,
its contours “must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739, (2002) (citation
omitted).
Bellino has not sufficiently pled, nor can he establish, that Grinde violated a clearly
established right. Although Bellino alleged Grinde violated his constitutional right
against unreasonable seizure by his continued incarceration, he fails to satisfy the second
prong because there was no right that was clearly established or violated. Bellino was
incarcerated due to a separate Cass County charge and released once the that charge was
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dismissed. There was, in fact, no “continued incarceration” in violation of Bellino’s
constitutional rights. Moreover, a reasonable official would understand that a “probation
hold” was reasonable and not in violation of a constitutional right in light of the pending
Cass County charge. On the same day that the Cass County charge was dismissed, Grinde
filed a Violation Report recommending the probation violation be dismissed as well. In
doing so, Grinde did not violate a clearly established right. Accordingly, Grinde is
entitled to qualified immunity and Bellino’s federal claims are dismissed.
E. Grinde lacks personal involvement in Bellino’s incarceration.
Grinde also argues that she lacks sufficient personal involvement in Bellino’s
incarceration, and thus, Grinde has not personally violated a constitutional right and the
§ 1983 claims must be dismissed. To state a claim under § 1983, the plaintiff must plead
that a government official has personally violated the plaintiffʹs constitutional rights.
Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014) (citing Iqbal, 556 U.S. at 676); see also Ellis
v. Norris, 179 F.3d 1078, 1079 (8th Cir. 1999) (A plaintiff must allege facts supporting any
individual defendantʹs personal involvement or responsibility for the violations.). To
establish personal involvement, a plaintiff must prove that a defendant directly
participated in the constitutional violation or was deliberately indifferent in failing to
correct violations. Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995); Choate v. Lockhard, 7 F.3d
1370, 1376 (8th Cir. 1993). It is not enough to rest on a bald allegation that a defendant
knows or should have known of a constitutional violation. Boyd, 47 F.3d at 968 n.1.
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Bellino premises his claims on Grinde’s failure to release him from incarceration,
but she had no personal involvement in Bellino’s incarceration on the new charge, or on
the decision to bring the new charge. Bellino acknowledges that he was held on new
charges in Cass County and that he remained incarcerated because he could not post bail.
Moreover, the public record clearly demonstrates that the Cass County charges were
dismissed on January 7, 2015, not December 11, 2014. Bellino was released upon the Cass
County dismissal. As a probation officer for Bellino’s earlier Beltrami County offense,
Grinde lacks personal involvement in Bellino’s incarceration. As such, Bellino’s
complaint does not allege Grinde was personal involved with or responsible for the
alleged constitutional violations.
II.
Court declines to exercise supplemental jurisdiction.
Under 28 U.S.C. § 1367(c)(3), the Court may decline to exercise supplemental
jurisdiction over a claim if “the district court has dismissed all claims over which it has
original jurisdiction.” “The Court has broad discretion in deciding whether to continue
hearing state claims following dismissal of federal claims.” Shimer v. Shingobee Island
Water & Sewer Comm’n, 2003 WL 1610788, at *8 (D. Minn. Mar. 18, 2003). In determining
whether to exercise supplemental jurisdiction, courts consider judicial efficiency,
convenience, and fairness to litigators. Condor Corp. v. City of St. Paul, 912 F.2d 215, 221
(8th Cir. 1990). In assessing efficiency, convenience, and fairness, courts look to multiple
factors, including “the stage of the litigation; the difficulty of the state claim; the amount
13
of time and energy necessary for the claim’s resolution; and the availability of a state
forum.” Goddard, Inc. v. Henry’s Foods, Inc., 291 F.Supp.2d 1021, 1051 (D. Minn. 2003)
(quotation omitted).
“[W]hen federal claims are dismissed before trial, the normal practice is to dismiss
pendent [state law] claims.” Stokes v. Lokken, 644 F.2d 779, 785 (8th Cir. 1981), overruled on
other grounds by Pinter v. Dahl, 486 U.S. 622 (1988). “If the claim giving original jurisdiction
is dismissed early in the action, ‘before any substantial preparation has gone into the
dependent claims, dismissing or remanding the [state claims] upon declining
supplemental jurisdiction seems fair enough.’” Gregoire v. Class, 236 F.3d 413, 419 (8th Cir.
2000) (quoting 28 U.S.C. § 1367 cmt. at 835 (1993)). Courts should “exercise judicial
restraint and avoid state law issues wherever possible’” Thomas v. Dickel, 213 F.3d 1023,
1026 (8th Cir. 2000) (citation omitted), and the factors considered typically point toward
declining to exercise supplemental jurisdiction, Carnegie–Mellon Univ. v. Cohill, 484 U.S.
343, 350 n. 7 (1988).
Here, the Court has dismissed Bellino’s federal claims against Grinde, and only
Bellino’s state law claim of negligence remains. Considering the early stage of this
litigation and the ability to adjudicate the negligence claim in state court, the Court
declines to exercise supplemental jurisdiction and the state claim is dismissed without
prejudice.
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III.
The Court denies the motion to amend on futility grounds, as the proposed
amendments to the facts do not change the result.
Bellino seeks to file a Second Amended Complaint to add the following factual
allegations:
On December 11, 2014, Bellino was informed in “open court” during a
hearing in a criminal case against his son that Cass County dismissed
his new charge through a plea with his son;
Bellino’s son’s plea agreement was made on the record in court;
Bellino was present when his son pleaded guilty and the Cass County
District Court determined that the charges against Bellino were to be
dismissed at once;
Grinde had actual knowledge that Bellino’s son’s guilty plea absolved
Bellino completely; and,
Bellino needs and is taking steps to get the transcript of the December
11, 2014 hearing.
[ECF No. 38‐2 at ¶¶27–29, 40–41.] Rule 15(a)(2) of the Federal Rules of Civil Procedure
provides that “[t]he court should freely give leave [to amend a pleading] when justice so
requires.” But “[a] district court may appropriately deny leave to amend where there are
compelling reasons such as undue delay, bad faith, or dilatory motive, repeated failure
to cure deficiencies by amendments previously allowed, undue prejudice to the non‐
moving party, or futility of the amendment.” Moses.com Secs., Inc. v. Comprehensive
Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005) (quotation omitted). Amendment is
futile where the proposed amended claim would not withstand a motion to dismiss. See
Lunsford v. RBC Dain Rauscher, Inc., 590 F. Supp. 2d 1153, 1158 (D. Minn. 2008).
As an initial matter, Rule 15(a)(1) provides that:
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“[a] party may amend its pleading once as a matter of course within: (A) 21
days after serving it, or (B) if the pleading is one to which a responsive
pleading is required, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f), whichever is
earlier.”
Bellino has previously amended his complaint once as of right pursuant to Fed. R. Civ.
P. 15(a)(1)(B) to eliminate Beltrami County as a defendant in this case. [See ECF Nos. 15,
16.] Grinde filed her motion to dismiss on September 14, 2018. [ECF No. 22.] Bellino then
waited to file his proposed Second Amended Complaint until October 5, 2018— the day
his opposition brief was due. [ECF No. 44; D. Minn. L.R. 7.1(c)(2).] Because Bellino
already filed an Amended Complaint and failed to comply with Fed. R. Civ. P. 15, the
Court ordered Bellino’s Second Amended Complaint stricken without prejudice. [ECF
No. 33.] Bellino then filed this motion to amend on October 26, 2018.
Ultimately, the Court concludes that the proposed Second Amended Complaint is
futile and is denied. As set forth above, Bellino’s federal claims are Heck‐barred, Grinde
is immune from liability under both absolute and qualified immunity and lacks personal
involvement with any alleged violation of a constitutional right, and the Court declines
to exercise supplemental jurisdiction over the negligence claim. The proposed
amendments do not change the Court’s analysis.
Further, despite the proposed Second Amended Complaint alleging that Grinde
had “actual knowledge” that Bellino’s son’s guilty plea “absolved” Bellino, there are no
facts indicating these allegations are anything more than conclusory statements. [ECF No.
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38‐2 at ¶¶27–29, 40.] Even so, it is undisputed that Bellino was incarcerated due to the
Cass County charge and that he could not afford to post bail. [ECF 38‐2 ¶26.] Despite
what Bellino alleges to have occurred on December 11, 2014, public record shows the Cass
County charge was not dismissed until January 7, 2015. Finally, the Court rejects Bellino’s
argument that his § 1983 claim under the Fourth Amendment could be regarded as one
for malicious prosecution. Not only is there no mention of a malicious prosecution claim
in the Second Amended Complaint, but Bellino fails to recite the elements and plead any
facts for a malicious prosecution claim. See Iqbal, 556 U.S. at 678 (stating the mere recital
of the elements of an action are insufficient to survive a motion to dismiss). As such,
Bellino’s Second Amended Complaint does not cure the deficiencies of his First Amended
Complaint and would not survive a motion to dismiss. Accordingly, the motion to amend
is denied.
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CONCLUSION
Based on the foregoing and on all of the files, records, and proceedings herein, the
Motion to Dismiss is GRANTED and the Motion to Amend is DENIED. Accordingly, IT
IS HEREBY ORDERED THAT:
1. Plaintiff’s amended complaint, with respect to its federal claims, is DISMISSED
WITH PREJUDICE.
2. Plaintiff’s negligence claim is DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 30, 2019
BY THE COURT:
s/Nancy E. Brasel
Nancy E. Brasel
United States District Judge
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