Kelley v. Hoffman et al

Filing 44

MEMORANDUM OPINION AND ORDER granting 27 Motion for Summary Judgment; denying as moot 32 Motion to Exclude Expert Testimony (Written Opinion) Signed by Judge Susan Richard Nelson on 10/14/2020. (avt)

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Lisa Kelley, as trustee for the Heirs and
Next of Kin of Maurice Kimball,

Case No. 18-cv-02805 (SRN/TNL)

Plaintiff,
MEMORANDUM OPINION AND
ORDER ON DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

v.
Correctional Officer Evan Pulford, Officer
Valerie Hauser, Officer Kaleena Wiens,
individually and in their official capacity,
and Brown County Sheriff Rich Hoffman,
individually and in his official capacity,
Defendants.

DeAundres D. Wilson, Wilson Law Office, 1622 West Lake Street, Minneapolis, MN
55408, for Plaintiff.
Jason M. Hiveley and Stephanie A. Angolkar, Iverson Reuvers Condon, 9321 Ensign
Avenue South, Bloomington, MN 55438, for Defendants.

SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Motion for Summary Judgment [Doc. No. 27]
and the Motion to Exclude Expert Testimony [Doc. No. 32] filed by Defendant
Correctional Officers Evan Pulford, Valerie Hauser, and Kaleena Wiens, and Brown
County Sheriff Rich Hoffman. Based on a review of the files, submissions, and proceedings
herein, and for the reasons below, the Court GRANTS Defendants’ motion for summary
judgment in its entirety, and DENIES as moot Defendants’ motion to exclude expert
testimony.

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I.

BACKGROUND
On the morning of July 10, 2016, Maurice Kimball was booked into the Brown

County Jail. At the time of booking, Kimball displayed symptoms of methamphetamine
intoxication, and Brown County correctional officers placed him in a holding cell for
observation. Approximately six hours later, the officers found Kimball lying face-up on
the floor, and noticed blood on his bed. The officers called an ambulance and Kimball was
transported to the hospital. Several days later, on July 12, 2016, Kimball passed away due
to complications from methamphetamine toxicity.
Plaintiff Lisa Kelley, as trustee for Kimball’s heirs and next of kin, originally
brought this action under 42 U.S.C. § 1983 against Brown County Sheriff Rich Hoffman,
several New Ulm police officers involved in Kimball’s arrest, and three Brown County
correctional officers involved in Kimball’s detention. After a series of stipulated
dismissals, 1 the remaining defendants are Brown County Sheriff Rich Hoffman and Brown
County Correctional Officers Evan Pulford, Valerie Hauser, and Kaleena Wiens
(collectively, “Defendants”). Against the remaining defendants, Kelley alleges substantive
due process violations under the Fourteenth Amendment; a policy, custom, or practice
claim under Monell v. Department of Social Services, 436 U.S. 658 (1978); and a wrongful
death claim under Minnesota law. (Compl. [Doc. No. 2].)

1

By the parties’ stipulation, all claims against Defendant New Ulm Police Officers
Jeremy Reed, Erik Byro, and T.J. Ibberson were dismissed, and the City of New Ulm was
joined as a defendant. (Order [Doc. No. 23].) Subsequently, all claims against the City of
New Ulm were dismissed by stipulation. (Order [Doc. No. 26].)

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Defendants moved for summary judgment, arguing that Kelley’s due process claim
is barred by qualified immunity, that Kelley has failed to establish a Monell claim, and that
Kelley’s wrongful death claim fails because the officers are entitled to official immunity
and Kimball’s death was not foreseeable. Defendants also moved to exclude the testimony
of Kelley’s expert, Dr. John Stark.
A.

Kimball’s Arrest

On the evening of July 9, 2016, New Ulm Police Department officers were
dispatched to Jenna Fischer’s apartment. The Brown County alcohol and treatment court
had received reports that an unknown male had moved into Fischer’s home, in possible
violation of her conditions with that court. (Angolkar Aff. [Doc. No. 30], Ex. 1 (“Reed
Dep.”), at 22-23.) Sergeant Jeremy Reed and Officers Sara Schlingmann, T.J. Ibberson,
and Erik Byro entered Fischer’s home with her. (Reed Dep. 27; Angolkar Aff., Ex. 3 (“Byro
Dep.”), at 9-10; Angolkar Aff., Ex. 4 (“Ibberson Dep.”), at 10-11.)
As Sergeant Reed entered the apartment, he saw Maurice Kimball seated in a
recliner and smelled marijuana. (Reed Dep. 25-26.) Sergeant Reed asked Fischer about the
smell, and she told him that she did not have any drugs in the house. (Id. at 27-28.) When
Sergeant Reed questioned Kimball, Kimball stated that “he needed a break”; he produced
a small amount of marijuana and a pipe from his pockets, gave these to Sergeant Reed, and
asked to be left alone. (Id. at 29.) Sergeant Reed described Kimball as “[f]idgety” and
“[n]ervous,” his hands and feet “moving around a lot.” (Id.) Kimball’s speech was “clear,”
and he did not have a problem enunciating or verbalizing. (Id. at 30.) But Kimball was

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sweating—“the longer . . . the interaction went, . . . you could see sweat start rolling,
pouring, puddling off his head.” (Id.)
Sergeant Reed believed Kimball’s demeanor was a sign that more drugs were
present in the room. (Id.) He asked Kimball how much methamphetamine he was using,
and Kimball “put up his defenses” and “became argumentative.” (Angolkar Aff., Ex. 2
(“Reed Incident Report”), at 1.) Kimball denied using methamphetamine. (Reed Dep. 41.)
Sergeant Reed asked Kimball to empty his pockets, and Kimball produced a large amount
of U.S. currency from his pocket. (Reed Incident Report 1.) Sergeant Reed also searched a
backpack near Kimball, and found a small bundle of methamphetamine, a digital scale,
packages of plastic bags used in packaging drugs for sale, and other drug paraphernalia.
(Id. at 2; Reed Dep. 42-44.) Throughout the search, Kimball was “upset, agitated, and
angry.” (Reed Dep. 45.) After searching the backpack, Sergeant Reed concluded that
Kimball was upset and angry because he was distributing and selling methamphetamine.
(Id. at 44-45.)
Kimball was placed under arrest. Officer Ibberson testified that Kimball “pulled
away” when Sergeant Reed attempted to handcuff him, and it took both officers to handcuff
him. (Ibberson Dep. 14-15.) An officer pat searched Kimball prior to placing him in Officer
Ibberson’s car. (Id. at 16.) Sergeant Reed testified that at the time of arrest, Kimball was
able to “hold a discussion,” verbalize, and walk on his own. (Reed Dep. 15.) He did not
display indicators that “he was suffering from a medical emergency,” such as “[l]oss of
functions,” inability to communicate, to talk, or to put sentences together, or loss of control
over body, bladder, and bowel movements. (Id. at 15-16.)
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B.

Booking at the Brown County Jail
1.

Arrival and Pat Search

Officer Ibberson drove Kimball to the Brown County Jail, arriving at midnight.
Once at the jail, Kimball was able to step out of the vehicle and follow Officer Ibberson’s
commands. (Ibberson Dep. 17.) Officer Ibberson described Kimball’s movements as
“[j]ittery, like he was at Jenna Fischer’s.” (Id. at 18.) Based on Kimball’s “jitteriness,”
Officer Ibberson believed he was under the influence of a stimulant, and he believed the
most likely stimulant was methamphetamine, “the common drug” in the area. (Id. at 19.)
Video from the Brown County Jail’s sally port corroborates Officer Ibberson’s
description of Kimball’s demeanor. Camera 4 shows Officer Ibberson pull into the jail’s
sally port, and shows Kimball stepping out of the vehicle unassisted. (Angolkar Aff., Ex.
5 (“Jail Video”), Camera 4, at 12:01:40.) Officer Ibberson crossed the room with Kimball,
and they waited outside a secured door. (Id.) The video shows Kimball standing, bouncing
foot-to-foot and twitching his shoulders and head, until Correctional Officers Pulford and
Hauser opened the door and led Kimball inside. (Id. at 12:01:46-02:00; see Pulford Dep.
29 (identifying Officers Ibberson, Pulford, and Hauser in the video).)
Once inside, Officer Pulford performed a pat search of Kimball. Officer Pulford
testified that during the pat search, Kimball was “[m]oving a little bit,” and “sweating a
little bit at that point and just kind of jerky with his movements in coming in.” (Pulford
Dep. 19.) “[H]e was not combative yet, but to the point where it appeared he was getting a

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little agitated with the process of coming into the jail.” 2 (Id.) Officer Pulford stated that
Kimball’s “behavior . . . was . . . consistent with somebody that was under the influence of
methamphetamine.” (Id.; see also id. at 23 (describing Officer Pulford’s understanding of
the indicators of methamphetamine intoxication, which included “[t]he fidgety, the
twitching, the sweating,” and inability to make fluid movements).) The pat search did not
reveal any contraband or drugs. (Id. at 19-20.) Kimball was led into an elevator and up to
the jail’s booking room. Surveillance video shows Kimball fidgeting in the elevator,
rocking forward and back, with his arms crossed and his shoulders hunched forward
slightly. (Jail Video, Camera 6, at 12:04:02-26.)
2.

Booking Sheet and Medical Screening Form

In the booking room, Officers Ibberson, Pulford, and Hauser filled out paperwork
with Kimball. Officer Wiens was not in the booking room, but was able to watch the
officers and Kimball through a camera feed in the jail’s control tower. (Angolkar Aff., Ex.
10 (“Wiens Dep.”), at 17.) Officer Hauser was the ranking officer, and supervised Officers
Pulford and Wiens. (Id. at 14.) Officer Hauser filled out Kimball’s booking sheet and a
medical screening form. (Hauser Dep. 18, 23.)

2

Officer Pulford clarified in his deposition that Kimball was not “aggressive”
during the pat search, but “he was not 100 percent compliant, where he was more – you
could see that he was starting to get upset in some of his movements. So agitated maybe
would be the best way to describe [it].” (Pulford Dep. 25.) By “not 100 percent compliant,”
Officer Pulford was referring to “just clenching, not being fully relaxed while I did the
search.” (Id. at 26.)

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The booking sheet notes that Kimball was not strip-searched. (Angolkar Aff., Ex. 9
(“Booking Sheet”).) The booking sheet contains a list of reasons that permit officers to
conduct a strip search of an arrestee. (Id. at 2.) One possible reason is “[c]urrent charge(s)
or previous conviction(s) for . . . possession of drugs.” (Id.) Notwithstanding that Kimball
was arrested on a “[c]ontrolled substance charge,” Officer Hauser wrote “Pat Search Only”
on the booking sheet, and the officers did not conduct a strip search. (Id. at 3; Hauser Dep.
18-21.) In her deposition, Officer Hauser explained that although Kimball’s charge would
qualify for a strip search “[a]ccording to the sheet,” she believed that “even though the
sheet states it that way, [the charge alone] doesn’t necessarily mean you always have
enough to do the strip search . . . and I didn’t have any other current knowledge that would
have given me reason for a strip search.” (Hauser Dep. 20-21.) When pressed regarding
what would qualify as sufficient reason for a strip search, Officer Hauser testified that if
Kimball had been known to smuggle contraband, she may have signed off on a strip search.
(Id. at 21-23.) But Kimball was not known to her to be a smuggler. (Id. at 23.)
On the medical screening form, line four indicates that Kimball “appear[ed] to be
under the influence of alcohol/drug,” specifically “[m]eth.” (Angolkar Aff., Ex. 8
(“Medical Screening Form”), at 2.) In addition, line five states that there were no “visible
signs of alcohol/drug withdrawal symptoms.” (Id.) And line eight, which prompts for
“other observations which may be of concern,” states “sweating excessively and
twitching.” (Id.) Lines one through eight on the medical screening form are typically filled
out by correctional officers, not the arrestee, based on the officers’ observations or on

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information from the arresting officer. (Pulford Dep. 21-22.) Officer Hauser made these
entries on Kimball’s medical screening form. (Hauser Dep. 23.)
At her deposition, Officer Hauser explained why she indicated on the form that
Kimball was under the influence of methamphetamine. Officer Hauser had “visual
indicators that [Kimball] was under the influence,” because he was “sweating” and
“twitching.” (Id. at 24, 30-31.) She believed Kimball was specifically under the influence
of methamphetamine because “[t]he arresting officer told me . . . [h]e had been using
meth.” (Id. at 24.) Officer Ibberson testified that he believed Kimball was under the
influence of a stimulant “based on how jittery he was,” and that he believed the stimulant
was methamphetamine because “that’s the common drug in our area.” (Ibberson Dep. 19.)
Accordingly, Officer Ibberson told the correctional officers that Kimball had been using
methamphetamine. (Id. at 19-20.) Officer Ibberson did not tell the officers that Kimball
admitted to using methamphetamine, or how much methamphetamine Officer Ibberson
thought Kimball might have used, or why Officer Ibberson thought Kimball had been using
methamphetamine. (Hauser Dep. 60-61.) Additionally, Officer Ibberson indicated “that
[Kimball] had been using meth, and detox would not take him.” (Id. at 65.)
Because Kimball appeared intoxicated, Officer Hauser did not offer him the phone
call arrestees are generally entitled to at booking. (Medical Screening Form 5.) Officer
Hauser wrote on the medical screening form that Kimball was not offered a phone call
because he was “intoxicated.” (Id.; Hauser Dep. 25.) Although pressed at her deposition to
admit that she believed Kimball was “too intoxicated” to make a phone call, Officer Hauser
explained that she “wasn’t denying him [a phone call],” and did not offer the call “as a
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courtesy.” (Hauser Dep. 25.) She believed that “[s]ometimes when people are under the
influence, they want to wait.” (Id.) Similarly, Officer Pulford explained that “if you’re
making a phone call when you’re under the influence of either drugs or alcohol, generally
we try to let them sober up to make that call so they can better articulate and explain what’s
going on, because a lot of times they don’t remember or they can’t get ahold of somebody
at midnight, and you generally get one free phone call.” (Pulford Dep. 29-30.) Officer
Pulford admitted that Kimball was able to have a “coherent conversation” and “probably
could have” made a phone call, but he believed it would be better to “offer that phone call
at a later time.” (Id. at 30-31.)
3.

The Officers’ Belief that Kimball was Intoxicated, but Not
Suffering a Medical Emergency

At the time of Kimball’s booking, all the officers present believed Kimball was
under the influence of something, and all but Wiens believed that something was
methamphetamine. Officer Hauser testified that she had “visual indicators that [Kimball]
was under the influence,” because he was “sweating” and “twitching.” (Hauser Dep. 24,
30-31.) She believed Kimball was specifically under the influence of methamphetamine
because “[t]he arresting officer told me . . . [h]e had been using meth.” (Id. at 24.)
Likewise, Officer Pulford testified that Kimball was able to communicate coherently, but
appeared to be intoxicated. (Pulford Dep. 22.) Officer Pulford believed Kimball had used
methamphetamine because his behavior—“fidgety, the twitching, the sweating”—was
“consistent with almost anyone who had recently used meth,” and because “we were
informed that he had recently used meth.” (Id. at 23-24.) Officer Wiens, who was not

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present in the booking room but was watching the video feed, testified that she believed
Kimball was under the influence “[o]f something,” but stated that “at the time, I did not
know he was under the influence of meth. I didn’t know what he was on.” (Wiens Dep. 58.)
But none of the officers believed Kimball was suffering a medical emergency.
Officer Pulford testified that Kimball “looked consistent with somebody that had used
methamphetamine and that was not in any sort of a medical emergency.” (Pulford Dep.
32.) Officer Hauser testified that Kimball was not going unconscious, was giving coherent
answers to questions, did not appear to be hallucinating, was not having seizures, and was
not vomiting. (Hauser Dep. 56.) Moreover, no one had to carry Kimball to his cell, and he
was coherent and cooperative. (Id. at 30, 61.)
Similarly, Officer Wiens testified that “it didn’t appear to be an immediate medical
emergency.” (Wiens Dep. 40.) But after reviewing the video feed from the booking room
during her deposition, Officer Wiens testified that she believed Kimball should have had
medical attention. (Id. at 58.) She stated “I do believe at that time he needed – probably
needed – at least call the ER and find out.” (Id. at 64.) Given that Officer Wiens’
observations of Kimball’s booking on July 10 were solely through the same video feed that
she reviewed during her deposition, counsel pressed her to reconcile the inconsistency
between her opinion at the time of booking and after reviewing the video again. (See id. at
60-66.) Officer Wiens explained, “watching the video . . . now, yes, he should have had
medical attention. However, back then, we didn’t know the extent to it. So that’s why we
put him in the holding cell, so we can observe him.” (Id. at 65.) Thus, Officer Wiens’

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testimony appears to be that at the time of Kimball’s booking, she did not think he was in
immediate medical distress; but in hindsight, she should have sought medical attention.
The video recording from the booking room also indicates that Kimball displayed
symptoms of methamphetamine intoxication, but did not appear to be experiencing a
medical emergency. Kimball spent much of his time in the booking room seated at the edge
of a bar-height stool, arms folded across his chest and hunched forward slightly. (Jail
Video, Camera 8, at 12:04:44-07:12.) He bounced his feet against the stool’s footrest,
stomped his foot on the floor, and appeared to shake slightly. (Id. at 12:04:44-06:18.)
Occasionally, Kimball took deep breaths, which calmed his twitching and shaking. (Id. at
12:06:18-26.) While Kimball completed paperwork at the booking room counter, the video
shows him standing upright, and neither fidgeting nor twitching. (Id. at 12:07:17-33.) After
he finished signing the papers, Kimball leaned against the counter, and can be seen
bouncing his leg, twitching his shoulder and head, and flexing his hands. (Id. at 12:08:1209:03.) Kimball was then directed to the shower stall in the booking room, and showered
unassisted. (Id. at 12:09:27-12:54; Pulford Dep. 17.) Once he was showered and changed
into new clothes, he resumed sitting on the stool. Unlike before the shower, he sat fully in
the chair, his arms and legs uncrossed. (Jail Video, Camera 8, at 12:16:48-52.) Kimball
continued to flex his hands, bounce his feet against the stool, and twitch at the shoulder
until the officers escorted him, unassisted, to the jail’s holding cell. (Id. at 12:16:52-17:28.)
Officer Wiens, who observed Kimball via the video feed in the control tower, noted
Kimball’s “shaking of the legs” and “[s]haking of the arms,” and that he was “[v]ery
cooperative and did what he was asked to do[, l]ike sign the paperwork.” (Wiens Dep. 40.)
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She testified that visibly shaking on the camera feed is a “common theme” for arrestees,
due to anxiety, though she deemed Kimball’s movements at times “excessive.” (Id. at 41,
53.) And Officer Wiens described Kimball’s behavior as “a little standoffish,” but “[o]ther
than that, he’s standing like he’s -- his behavior right there is showing me that he’s just like
everybody else that comes into the jail.” (Id. at 51.)
C.

Observations of Kimball in the Holding Cell

After leaving the booking room, Kimball was placed alone in a holding cell, so that
he could be moved to the general population once he was sober. (Hauser Dep. 15.) Because
the jail does not have cameras in its holding cells, the only information about his demeanor
comes from an activity log filled out by the correctional officers, the officers’ incident
reports, and their depositions. Officers Pulford, Hauser, and Wiens primarily observed
Kimball from the jail tower, which has a window overlooking the jail’s holding cells.
(Pulford Dep. 37; Hauser Dep. 43-44; Wiens Dep. 10.) From the tower, the officers could
see the entire holding cell, except under the bed. (Hauser Dep. 44-45.)
From 12:30 am to 3:31 am, the activity log entries by Officers Hauser and Pulford
note that Kimball was simply “laying on left side” or “laying on right side.” (Angolkar
Aff., Ex. 11 (“Activity Log”), at 2.) And one entry—at 1:26 am—notes that Kimball
“[a]ppears to be drinking water.” (Id.) Officer Hauser testified that from 1:00 am to
3:30 am, she did not see anything that made her believe Kimball had a serious medical
issue. (Hauser Dep. 58.) Similarly, Officer Pulford testified that until 4:00 am, he did not
see any aggressive or concerning behaviors, and he did not see anything that would indicate
that he should contact a nurse or doctor. (Pulford Dep. 40.) Officer Pulford did not see
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Kimball put anything in his mouth or dig around in his clothing, and he observed Kimball
getting up and drinking water “throughout a long period of time.” (Id. at 40-41.) Notably,
Officer Wiens finished her shift at 3:00 am. (Wiens Dep. 22.)
Then, according to the activity log, Kimball become more active. At 3:47 am,
Officer Hauser recorded that Kimball “appears to be kicking the air.” (Activity Log 2.)
Officer Pulford recorded that Kimball was “kicking legs in the air” at 3:57 am, and “kicking
both feet in the air” at 4:01 am. (Id.) Officer Hauser recorded that Kimball was back to
“[l]aying on left side” at 4:28 am. (Id.)
At 4:30 am, Officer Hauser called the New Ulm Medical Center’s emergency room.
(Id.) She asked the nurse “at what point in time did I need to be concerned about someone
who is high on Meth.” (Id.) She “informed the nurse [that] Kimball was drinking water,
punching and kicking the air.” (Id.) The nurse told Officer Hauser that “as long as he was
coherent and not running a fever he was going to twitch.” (Id.; Angolkar Aff., Ex. 13, at
2.) Officer Hauser testified that the call was “[p]recautionary,” because by 4:30 am Kimball
had been “kicking the air and kind of just acting violent”—specifically, by kicking the wall
and punching the air. (Hauser Dep. 48-49.) But Officer Hauser did not take Kimball’s
temperature, and did not talk to him to determine whether he was coherent. (Id. at 50-51.)
Rather, Officer Hauser testified that she did not check if Kimball had a fever “[b]ecause he
was drinking water and he was up moving around,” and because she “didn’t take it as
direction from the nurse.” (Id. at 53.) And Officer Hauser believed Kimball was coherent
because “[h]e was up and moving around. He looked like he was coherent.” (Id. at 50.)
Officer Hauser testified that she took the nurse’s instruction as “[p]recautionary,” not “as
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direction.” (Id. at 53-54.) Officer Hauser continued to check on Kimball from the jail tower,
but never took his temperature. (Id. at 54-55.) Officer Pulford was aware of the call to the
nurse. (Pulford Dep. 51-52.)
Beginning at 4:37 am, the officers recorded observations of Kimball more
frequently. At 4:37 am, Officer Hauser noted that Kimball “appears to have spit on floor.”
(Activity Log 2.) At 4:54 am, he was “laying on stomach, moving legs”; then at 4:59 am,
he was “laying on left side.” (Id.) Twenty minutes later, he was “up getting water.” (Id.)
At 5:26 am, Kimball was “sitting on bed rocking,” and at 5:32 am he “kicked wall.” (Id.)
Then, at 5:48 am, Officer Pulford recorded that Kimball was “laying on cell floor.” (Id.)
At 5:52 am, he was “standing in cell.” (Id.) At 6:00 am, Officer Pulford observed Kimball
“laying on floor” again. (Id.) At 6:03 am, he recorded that Kimball was still “laying on
floor,” but he “can clearly see chest rising.” (Id.) At 6:05 am, Kimball “moved both feet.”
(Id.) At 6:10 am, Officer Pulford could “see chest rising, moving feet, eyes opening and
closing.” (Id.) Officer Pulford testified that during this time, Kimball “was still fine,” and
he did not believe that Kimball’s physical movements indicated an immediate, serious
medical condition. (Pulford Dep. 42, 51.)
Officer Pulford’s next entry was at 6:32 am, and recorded that Kimball was “on
floor, blood found on the bed [New Ulm Police Department] called and Allina [Ambulance
Service].” (Activity Log 2.) Officer Pulford testified that he had just completed a round
checking on all the jail’s cells, and he still had the flashlight he used for the jail check in
his hand. (Pulford Dep. 43.) From the jail tower, he shined the flashlight across Kimball’s
cell, and saw “some sort of vomit or a clear liquid mixed with some blood on the bed.” (Id.
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at 43.) He did not see blood on the floor or on Kimball, and testified that it did not appear
to be “a large pool of blood, but it looked like it was blood mixed with some sort of vomit
or clear liquid.” (Id. at 44-45.)
Officer Pulford testified that prior to seeing blood on the bed, he had not seen any
signs indicating that Kimball needed immediate medical care. (Id. at 50.) Officer Pulford
also explained that “given the circumstances of him at that point seeming to be moving less
than what he was previously . . . , I started to consider it to be more of a medical issue.”
(Id. at 45.) Similarly, Officer Hauser testified that she did not believe Kimball needed
immediate medical care until she observed the blood on the bed. (Hauser Dep. 63.)
Officer Pulford called dispatch to arrange an ambulance, and called to notify
Sergeant Cassie Sandmann. (Pulford Dep. 48.) Officer Pulford testified that when he called
Sergeant Sandmann, he did not know that Kimball was overdosing: “[E]ven at that time I
didn’t know that that’s what was happening. I’m not a medical trained professional, so I
didn’t know that that’s what was going on.” (Id. at 33-34.) Meanwhile, Officer Hauser
opened the holding cell door and attempted to talk with Kimball. (Id. at 48-49.) Officer
Hauser testified that Kimball was lying on the floor, on his back. (Hauser Dep. 64.) Officer
Byro arrived to assist Officer Hauser, and both entered Kimball’s cell together to perform
first-aid. (Pulford Dep. 49; Angolkar Aff., Ex. 17 (“Byro Incident Report”), at 2.) Shortly
after, New Ulm Police Officer Sara Schlingmann arrived to assist. (Pulford Dep. 49; Byro
Incident Report 2; see Jail Video, Camera 7, at 06:20:00-6:25:00.) At 6:37 am, paramedics
arrived and removed Kimball from the holding cell. (Activity Log 2.)

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The officers found two baggies of what appeared to be methamphetamine in the
cell. Officer Byro testified that when he and Officer Hauser entered the cell, Officer Hauser
pointed out a clear bag containing a white substance near Kimball’s right arm. (Byro Dep.
17-19.) Officer Hauser’s incident report describes finding an “open dime baggie of a crystal
white/ clear substance.” (Angolkar Aff., Ex. 13, at 2.) Officer Byro gave the bag to Officer
Hauser for safe-keeping, and returned to the jail to retrieve it after accompanying Kimball
to the hospital. (Id.; Byro Dep. 19-20.) When Officer Byro returned for the bag, he tested
the substance inside; the substance tested positive for methamphetamine, and was placed
in evidence. (Byro Dep. 20.) Officer Pulford testified that Sergeant Sandmann found a
second bag later, while cleaning the cell. (Pulford Dep. 52.) Sergeant Sandmann’s incident
report states that she found the second bag under the bed, at 10:35 am. (Aff. DeAundres
Wilson (“Wilson Aff.”) [Doc. No. 39-2], Ex. 23.)
Based on the bags of methamphetamine found in the cell, Officer Pulford concluded
that Kimball had ingested methamphetamine while in the cell. (Pulford Dep. 50.) He based
this conclusion on “the general course of events of . . . the progression starts getting
where . . . he was laying, laying, laying, laying, and then appears to begin to ramp himself
up or become more physical, more moving.” (Id. at 51.) Likewise, Defendants’ expert, Dr.
Richard Kingston, opined that “Mr. Kimball consumed a massive overdose of
methamphetamine from contraband that he successfully smuggled into jail during his arrest
and incarceration. . . . [M]ore likely than not, his consumption was shortly before his
demise.” (Angolkar Aff., Ex. 19 (“Kingston Report”), at 15.)

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Kimball was taken to the New Ulm Medical Center, and began actively seizing
while in the ambulance. (Angolkar Aff., Ex. 15 (“Medical Examiner’s Report”), at 2.) He
was later transferred to the Abbott Northwestern Hospital in Minneapolis. (Angolkar Aff.,
Ex. 14, at 44.) He passed away on July 12, 2016. (Id. at 47.) The Hennepin County Medical
Examiner’s Office concluded that the cause of death was complications of
methamphetamine toxicity. (Medical Examiners Report 2.)
II.

DISCUSSION
A.

Qualified Immunity

Qualified immunity protects government officers from § 1983 liability “unless the
official’s conduct violates a clearly established constitutional or statutory right of which a
reasonable person would have known.” Brown v. City of Golden Valley, 574 F.3d 491, 495
(8th Cir. 2009). Thus, the Court must perform a two-part analysis to determine if qualified
immunity applies: (1) decide whether the facts show the violation of a constitutional or
statutory right, and (2) determine whether that right was clearly established at the time of
the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v.
Katz, 533 U.S. 194 (2001)). The Court may analyze either step first. Id. at 236. Qualified
immunity “is an immunity from suit rather than a mere defense to liability . . . [and] it is
effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472
U.S. 511, 526 (1985). Qualified immunity is a question of law for the court to decide.
Littrell v. Franklin, 388 F.3d 578, 584 (8th Cir. 2004).

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B.

Summary Judgment

Summary judgment is appropriate 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 Court must view the evidence and any reasonable inferences
drawn from the evidence in the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When analyzing
qualified immunity at summary judgment, the court should not “deny summary judgment
any time a material issue of fact remains on the [constitutional violation] claim [because to
do so] could undermine the goal of qualified immunity to avoid excessive disruption of
government and permit the resolution of many insubstantial claims on summary
judgment.” O’Neil v. City of Iowa City, 496 F.3d 915, 917 (8th Cir. 2007) (quoting
Saucier, 533 U.S. at 202) (internal quotation marks omitted) (alterations in original).
Instead, “the court must take a careful look at the record, determine which facts are
genuinely disputed, and then view those facts in a light most favorable to the non-moving
party as long as those facts are not so ‘blatantly contradicted by the record . . . that no
reasonable jury could believe [them].’” Id. (quoting Scott v. Harris, 550 U.S. 372, 380
(2007)) (alterations in original).
Although the moving party bears the burden of establishing the lack of a genuine
factual dispute, the party opposing summary judgment may not “rest on mere allegations
or denials but must demonstrate on the record the existence of specific facts which create
a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Krenik v.
Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995) (internal quotation marks omitted).
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Moreover, summary judgment is properly entered “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at
322.
C.

Alleged Violations of the Fourteenth Amendment

The Court’s analysis begins and ends with the first step in the qualified immunity
inquiry: whether the facts show the violation of a constitutional or statutory right. Pearson
v. Callahan, 555 U.S. 223, 232 (2009). Kelley asserts that Officers Pulford, Hauser, and
Wiens violated Kimball’s Fourteenth Amendment substantive due process rights by failing
to provide adequate medical attention. The Eighth Circuit has held that pretrial detainees,
like Kimball, have a clearly established constitutional right “to be free from deliberately
indifferent denials of emergency medical care.” Ryan v. Armstrong, 850 F.3d 419, 427 (8th
Cir. 2017). A plaintiff asserting a deliberate indifference claim must show (1) that he
“suffered from an objectively serious medical need,” and (2) that one or more defendants
“had actual knowledge of that need but deliberately disregarded it.” Id. at 425 (quoting
Bailey v. Feltmann, 810 F.3d 589, 593–94 (8th Cir. 2016)).
The first prong of the deliberate indifference analysis is an objective inquiry, and is
satisfied if the detainee’s medical need “is supported by medical evidence, such as a
physician’s diagnosis, or is ‘so obvious that even a layperson would easily recognize the
necessity for a doctor’s attention.’” Id. (quoting Bailey, 810 F.3d at 594). The second prong
is a subjective inquiry, and imposes “an extremely high standard that requires a mental
state of ‘more . . . than gross negligence.’” Saylor v. Nebraska, 812 F.3d 637, 644 (8th Cir.
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2016), as amended (Mar. 4, 2016) (quoting Fourte v. Faulkner Cty., 746 F.3d 384, 387
(8th Cir. 2014)). This standard is satisfied only by a showing of “a mental state akin to
criminal recklessness”; neither “negligence nor gross negligence are sufficient.” Ryan, 850
F.3d at 425 (citing Thompson v. King, 730 F.3d 742, 746–47 (8th Cir. 2013)). A plaintiff
may prove the defendant’s mental state “through circumstantial evidence, as ‘a factfinder
may determine that a defendant was actually aware of a serious medical need but
deliberately disregarded it, from the very fact that the [medical need] was obvious.’” Id.
(quoting Vaughn v. Gray, 557 F.3d 904, 908–09 (8th Cir. 2009)) (alteration in original).
Because liability for damages for a federal constitutional tort is personal, “each defendant’s
conduct must be independently assessed.” Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir.
2006).
1.

Objectively Serious Medical Need

The first threshold Kelley must pass requires showing that Kimball “suffered from
an objectively serious medical need,” by demonstrating that Kimball’s medical need was
either “supported by medical evidence, such as a physician’s diagnosis,” or was “so
obvious that even a layperson would easily recognize the necessity for a doctor’s
attention.” Ryan, 850 F.3d at 425. The Eighth Circuit has made clear that “an officer does
not lose the protections of qualified immunity merely because he does not react to all
symptoms that accompany intoxication.” Thompson, 730 F.3d at 748. For example, in
Grayson v. Ross, the Eighth Circuit found that an intoxicated arrestee did not present an
objectively serious medical need, despite clear methamphetamine intoxication. 454 F.3d
802 (8th Cir. 2006). The court reasoned: “Confronted with a calm, non-combative person
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sitting on a bench answering questions, a layperson would not leap to the conclusion that
Grayson needed medical attention, even if he were aware that Grayson had taken
methamphetamine.” Id. at 810. By contrast, the Eighth Circuit has found an objectively
serious medical need where an arrestee “could not answer questions and could not remain
seated without falling over.” Barton v. Taber, 820 F.3d 958, 965 (8th Cir. 2016).
Here, there is no question that Kimball’s medical need was not “supported by
medical evidence, such as a physician’s diagnosis.” Ryan, 850 F.3d at 425. Rather, the
parties dispute whether Kimball’s medical need was “so obvious that even a layperson
would easily recognize the necessity for a doctor’s attention.” Id. Even viewing the record
in the light most favorable to Kelley, the Court finds that the record does not support
Kelley’s contention that Kimball was suffering from an objectively serious medical need
obvious to a layperson prior to 6:32 am, when the officers first noticed blood on his bed
and responded promptly by calling an ambulance.
At the time of Kimball’s booking, a layperson would not have easily recognized that
Kimball needed medical attention. To be sure, a layperson would have recognized that
Kimball was intoxicated. In the booking room, Kimball was “sweating excessively and
twitching.” (Medical Screening Form 2; Hauser Dep. 24, 30-31.) Officer Pulford testified
that Kimball’s behavior—“fidgety, the twitching, the sweating”—was “consistent with
almost anyone who had recently used meth.” (Pulford Dep. 23-24.) The jail’s surveillance
video similarly shows that Kimball was fidgety or jittery throughout the booking process,
and his shoulders and neck frequently twitched. (See generally Jail Video, Camera 8.) And

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the correctional officers were explicitly told that Kimball had used methamphetamine.
(Hauser Dep. 24; Ibberson Dep. 19-20.)
A layperson, however, would not have easily recognized that Kimball was
experiencing a medical emergency. Although he appeared intoxicated, Kimball was “able
to communicate coherently.” (Pulford Dep. 22.) Officer Wiens described some of
Kimball’s behavior as typical for anxious arrestees. (Wiens Dep. 41.) He was not going
unconscious, was giving coherent answers to questions, did not appear to be hallucinating,
and was not having seizures or vomiting. (Hauser Dep. 56.) Kimball was able to walk
unassisted, and was cooperative. (Id. at 30, 61; see Jail Video, Camera 8.) And the
correctional officers were not told how much methamphetamine Kimball had used, or when
he had used it. (Hauser Dep. 60-61.)
Nor was Kimball’s medical need easily recognizable by a layperson while he was
in the jail’s holding cell. From 12:30 am to approximately 3:30 am, Kimball was either
lying on the bed or up drinking water. (Activity Log 2.) Neither Officer Hauser nor Officer
Pulford saw anything concerning in Kimball’s behavior during this time. (Hauser Dep. 58;
Pulford Dep. 40.) From approximately 3:30 am to 6:00 am, Kimball became more active.
Officers Pulford and Hauser noted that he was “kicking the air,” that he “spit on the floor,”
that he was “laying on stomach, moving legs,” “sitting on bed rocking,” and, briefly,
“laying on cell floor.” (Activity Log 2.) Kimball’s shift in behavior was concerning enough
that Officer Hauser called the New Ulm Medical Center’s emergency room to determine
when she should “be concerned about someone who is high on Meth.” (Id.) Kimball’s
behavior was certainly concerning. But it was not so severe that a layperson “would easily
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recognize” that Kimball was facing a methamphetamine overdose requiring immediate
medical attention, nor did the New Ulm Medical Center nurse suggest otherwise.
By contrast, from 6:00 am to 6:32 am, Kimball was observed lying face-up on the
cell floor. (Id.) His chest was rising, his feet were moving, and his eyes were opening and
closing. (Id.) Then, at 6:32 am, Officer Pulford observed “some sort of vomit or clear liquid
mixed with some blood” on Kimball’s bed. (Pulford Dep. 43.) At that time, Kimball’s need
for emergency medical care was obvious to a layperson. And at that time, Officers Pulford
and Hauser promptly called an ambulance and administered first-aid. (Activity Log 2;
Pulford Dep. 48-49; Hauser Dep. 64; Byro Incident Report 2.) Paramedics arrived shortly
after, at 6:37 am. (Activity Log 2.)
Thus, based on the undisputed facts in the record and viewing the evidence in the
light most favorable to Kelley, Kimball was not suffering from an objectively serious
medical need obvious to a layperson until approximately 6:32 am, when Officers Pulford
and Hauser promptly called for an ambulance.
2.

Defendants’ Actual Knowledge and Deliberate Disregard for
Kimball’s Medical Need

Even if Kimball were suffering from an objectively serious medical need obvious
to a layperson prior to the time when Officers Pulford and Hauser called for an ambulance,
the record does not show that any of the officers actually knew of that need and deliberately
disregarded it. Because this prong of the analysis requires an independent assessment of
each defendant’s conduct, the Court will treat Officers Pulford, Hauser, and Wiens
separately. See Wilson, 441 F.3d at 591. The Court begins with Officer Hauser.

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a.

Officer Hauser

The Court finds that the undisputed facts in the record do not support Kelley’s
contention that Officer Hauser had actual knowledge of Kimball’s medical need but
deliberately disregarded it. Officer Hauser knew Kimball was intoxicated, and believed he
had been using methamphetamine. In fact, it was Officer Hauser who noted on Kimball’s
medical screening form that he “appear[ed] to be under the influence of alcohol/drug,”
specifically “[m]eth.” (Medical Screening Form 2; Hauser Dep. 23.) Officer Hauser
testified that Kimball displayed “visual indicators that he was under the influence,”
including “sweating” and “twitching.” (Hauser Dep. 24, 30-31.) And she knew from
Officer Ibberson that Kimball had been using methamphetamine. (Id. at 24.)
Nevertheless, Officer Hauser did not believe Kimball was suffering a medical
emergency. He was not going unconscious, was giving coherent answers to questions, did
not appear to be hallucinating, and was not having seizures or vomiting. (Id. at 56.)
Moreover, Officer Hauser was not told how much methamphetamine Kimball had used, or
when he had used it. (Id. at 60-61.) In Grayson, the Eighth Circuit held that a defendant
correctional officer did not have actual knowledge of the arrestee’s medical need in part
because the officer “did not know the amount of methamphetamine taken or the time that
it was taken.” 454 F.3d at 810. Although Officer Hauser did not offer Kimball a phone call
due to his intoxication, she did not decline to offer the call because he was too intoxicated
to make a phone call. (Id. at 25.) To the contrary, Officer Pulford testified that Kimball was
able to have a “coherent conversation” and “probably could have” made a phone call, and
the officers decided to delay offering the call until he was sober as a “courtesy.” (Pulford
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Dep. 29-31; Hauser Dep. 25.) And during the first three hours of Kimball’s detention in
the holding cell, Officer Hauser testified that she did not see anything that made her believe
he had a serious medical issue. (Hauser Dep. 58.)
Notably, Officer Hauser called the New Ulm Medical Center’s emergency room at
4:30 am, and asked the nurse “at what point in time did I need to be concerned about
someone who is high on Meth.” (Activity Log 2.) The nurse told her that “as long as he
was coherent and not running a fever he was going to twitch.” (Id.) Although this phone
call indicates that Officer Hauser was concerned by Kimball’s behavior, it does not
establish that she had actual knowledge that he was in immediate medical distress.
Moreover, the record does not show that Officer Hauser deliberately disregarded
Kimball’s needs. The deliberate disregard standard is a high one. Saylor, 812 F.3d at 644.
It requires more than even gross negligence. Ryan, 850 F.3d at 425. To establish deliberate
disregard, a plaintiff must show “a mental state akin to criminal recklessness.” Id. To be
sure, Officer Hauser did not follow up on the nurse’s comments. She never took Kimball’s
temperature to check for fever. (Hauser Dep. 50-51, 54-55.) Nor did she attempt to speak
to Kimball to determine whether he was still coherent. (Id. at 50-51.) Rather, Officer
Hauser testified that she regarded the nurse’s instruction as “[p]recautionary,” not “as
direction.” (Id. at 53-54.) Nonetheless, Officer Hauser believed Kimball was not feverish
“[b]ecause he was drinking water and he was up moving around,” and she believed Kimball
was coherent because “[h]e was up and moving around. He looked like he was coherent.”
(Hauser Dep. 50, 53.) At most, Officer Hauser’s judgment that Kimball was coherent and
not feverish, without confirming so, was negligent or even grossly negligent. However,
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Officer Hauser’s failure to follow through with the nurse’s instructions does not show a
mental state akin to criminal recklessness.
Kelley relies on the Eighth Circuit’s opinion in Ryan v. Armstrong, where the Eighth
Circuit reversed the district court’s grant of summary judgment based on qualified
immunity. 850 F.3d 419. Kelley interprets Ryan as holding “that the officers’ failure to talk
to the detainee or seek medical treatment for him was a clearly inadequate response that
supports an inference of deliberate indifference.” (Plf.’s Mem. Opp. Def.’s Mot. Summ. J.
[Doc. No. 39], at 14 n.1.) But in Ryan, the defendant correctional officers allowed an
arrestee to “scream, howl, and bang against his cell door for eight hours without attempting
to talk to him or seek medical intervention.” Ryan, 850 F.3d at 426. By contrast, Kimball
appears to have slept for much of his approximately six-hour detention in the holding cell.
Even when Kimball became more active, by kicking the air and wall, there is no evidence
in the record that he screamed, howled, or otherwise acted violently. And when Kimball
did present clear signs of medical distress, Officers Pulford and Hauser summoned an
ambulance and administered first-aid.
In sum, the Court finds that, viewing the evidence in the light most favorable to
Kelley, the undisputed facts in the record do not show that Officer Hauser had actual
knowledge of and deliberately disregarded Kimball’s medical need.
b.

Officer Pulford

Similarly, the undisputed facts in the record do not support Kelley’s contention that
Officer Pulford had actual knowledge that Kimball was suffering from an immediate
medical need. Like Officer Hauser, Officer Pulford believed that Kimball “looked
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consistent with somebody that had used methamphetamine and that was not in any sort of
a medical emergency.” (Pulford Dep. 32.) Officer Pulford testified that until 4:00 am, he
did not see any aggressive or concerning behaviors, and he did not see anything that would
indicate that he should contact a nurse or doctor. (Id. at 40.) In addition, Officer Pulford
stated that did not see Kimball put anything in his mouth or dig around in his clothing, and
he observed Kimball getting up and drinking water “throughout a long period of time.” (Id.
at 40-41.) Even when Kimball became more active after 3:47 am, Officer Pulford believed
Kimball “was still fine,” and he did not believe that Kimball’s physical movements
indicated an immediate, serious medical condition. (Id. at 42, 51.)
As with Officer Hauser, the record does not show that Officer Pulford deliberately
disregarded Kimball’s medical needs. Officer Pulford was aware of Officer Hauser’s call
to the nurse, and did no more to follow up on that call than Officer Hauser. (Id. at 51-52.)
However, there is no evidence in the record that Officer Pulford’s omission was motivated
by bad faith. Like Officer Hauser, Officer Pulford’s judgment not to follow up on the
nurse’s instructions amounts, at most, to negligence or gross negligence. The record,
viewed in the light most favorable to Kelley, does not establish that Officer Pulford acted
with the culpable state of mind necessary to meet the “extremely high standard” of
deliberate disregard. Saylor, 812 F.3d at 644.
c.

Officer Wiens

Finally, the undisputed facts in the record do not support Kelley’s contention that
Officer Wiens had actual knowledge that Kimball was suffering from an immediate need
for medical care but deliberately disregarded that need. Officer Wiens testified she
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believed, at the time, that “it didn’t appear to be an immediate medical emergency.” (Wiens
Dep. 40.) Later, in her deposition, Officer Wiens reconsidered her judgment at the time
and testified that “I do believe at that time he needed – probably needed – at least call the
ER and find out.” (Id. at 64.) It is clear, however, that her judgment, at the time of her
deposition, was made with the benefit of hindsight. Officer Wiens explained, “watching
the video . . . now, yes, he should have had medical attention. However, back then, we
didn’t know the extent to it. So that’s why we put him in the holding cell, so we can observe
him.” (Id. at 65.)
Thus, Officer Wiens’ testimony does not support a finding that Officer Wiens, at
the time of Kimball’s booking and detention, actually knew that Kimball was suffering a
medical emergency and deliberately disregarded it. At most, it shows that the officers’
judgments at the time may have been negligent. There is simply no evidence that they acted
knowingly with deliberate disregard for Kimball’s medical needs. Moreover, Officer
Wiens finished her shift at 3:00 am, before Kimball became more active, before Officer
Hauser’s call to the New Ulm Medical Center, and well before Kimball was found
unconscious on the cell floor. (Wiens Dep. 22.) There is no evidence in the record to
suggest that Officer Wiens acted with a mental state akin to criminal recklessness.
3.

Conclusion

In sum, viewing the undisputed facts in a light most favorable to Kelley, the Court
finds that the record does not support Kelley’s contention that Kimball was suffering from
an objectively serious medical need prior to the time Officers Pulford and Hauser called an
ambulance and that the record does not support Kelley’s contention that Officers Pulford,
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Hauser, and Wiens had actual knowledge of Kimball’s medical emergency but deliberately
disregarded those medical needs. Accordingly, Defendants are entitled to qualified
immunity because there is no evidence in the record that they violated any constitutional
right under the Fourteenth Amendment.
D.

Monell Claim

Kelley also asserts a section 1983 Monell claim against Brown County Sheriff Rich
Hoffman. Under Monell v. Department of Social Services, a county may be subject to
§ 1983 liability if “action pursuant to official [county] policy . . . caused a constitutional
tort.” 436 U.S. 658, 691 (1978). But “[w]ithout a constitutional violation by the individual
officers, there can be no § 1983 or Monell . . . liability.” Stockley v. Joyce, 963 F.3d 809,
823 (8th Cir. 2020) (quoting Sanders v. City of Minneapolis, 474 F.3d 523, 527 (8th Cir.
2007)); see also Whitney v. City of St. Louis, 887 F.3d 857, 861 (8th Cir. 2018) (“[A]bsent
a constitutional violation by a city employee, there can be no § 1983 or Monell liability for
the City.” (collecting authorities)). As explained above, Officers Pulford, Hauser, and
Wiens were not deliberately indifferent to an objectively serious medical need.
Accordingly, Officers Pulford, Hauser, and Wiens did not violate Kimball’s constitutional
rights, and Brown County cannot be liable under a Monell theory of liability. Therefore,
Defendants are entitled to summary judgment on the Monell claim as well.
E.

Wrongful Death Claim

Finally, Kelley asserts a state law wrongful death claim. Defendants argue that they
are entitled to summary judgment on Kelley’s wrongful death claim because official
immunity bars the claim and because Kimball’s death was not foreseeable. The Court

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agrees that Kelley’s wrongful death claim is barred by official immunity. “Under
Minnesota law, a public official is entitled to official immunity from state law claims when
the official’s duties require the exercise of discretion or judgment.” Dokman v. Cty. of
Hennepin, 637 N.W.2d 286, 296 (Minn. Ct. App. 2001) (citing Johnson v. Morris, 453
N.W.2d 31, 41 (Minn. 1990)). In analyzing an official’s claim to immunity, the Court asks
(1) whether the official’s challenged acts were discretionary or ministerial, and (2) whether
the challenged acts, “even though of the type covered by official immunity, were malicious
or willful and therefore stripped of the immunity’s protection.” Id. (citing Davis v.
Hennepin County, 559 N.W.2d 117, 122 (Minn. Ct. App. 1997)); see Elwood v. Rice Cty.,
423 N.W.2d 671, 677 (Minn. 1988).
Defendants’ challenged conduct was discretionary, not ministerial, and therefore
entitled to official immunity. “A discretionary act is one for which an official must exercise
‘judgment or discretion.’” Dockman, 637 N.W.2d at 296 (quoting Johnson v. State, 553
N.W.2d 40, 46 (Minn. 1996)). By contrast, a ministerial act “involves merely the execution
of a specific, absolute duty.” Id. (citing Kari v. City of Maplewood, 582 N.W.2d 921, 923
(Minn. 1998)). Defendants’ decision to book Kimball into the Brown County Jail despite
his intoxication, and their decisions regarding whether and when to seek emergency
medical attention for him, were acts requiring judgment or discretion. Thus, Defendants
are entitled to official immunity unless their conduct was malicious or willful.
The record is devoid of any evidence that Defendants acted out of malice. For
purposes of official immunity, malice “means intentionally committing an act that the
official has reason to believe is legally prohibited.” Kelly v. City of Minneapolis, 598
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N.W.2d 657, 663 (Minn. 1999). A finding of malice “must be based on ‘specific facts
evidencing bad faith.’” Semler v. Klang, 743 N.W.2d 273, 279 (Minn. Ct. App. 2007)
(quoting Reuter v. City of New Hope, 449 N.W.2d 745, 751 (Minn. Ct. App. 1990)). Here,
Kelley has identified no “specific facts evidencing bad faith.” Id. For the same reasons that
the Court found that Officers Pulford, Hauser, and Wiens were not deliberately indifferent
to Kimball’s medical needs, the Court finds that the record is devoid of evidence that the
officers willfully withheld medical care out of malice. Although Officers Pulford, Hauser,
and Wiens may have been negligent, perhaps even grossly negligent, there is no evidence
in the record indicating that the officers acted in bad faith or intentionally deprived Kimball
of necessary medical care. Accordingly, Officers Pulford, Hauser, and Wiens are entitled
to official immunity.
Moreover, Brown County is entitled to vicarious official immunity. A county
employer is generally entitled to vicarious official immunity when its employees are found
to have official immunity. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn.
1998). Because Brown County’s liability arises from the same conduct for which the Court
found Officers Pulford, Hauser, and Wiens immune, the Court holds that Brown County is
entitled to vicarious official immunity.
Accordingly, Defendants are entitled to summary judgment on Kelley’s wrongful
death claim. Because the Court finds that Defendants are entitled to official immunity, it
need not address Defendants’ argument that Kimball’s death was not foreseeable.

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III.

CONCLUSION
Based on the submissions and the entire file and proceedings herein, IT IS

HEREBY ORDERED that Defendants’ Motion for Summary Judgment [Doc. No. 27] is
GRANTED, and Defendants’ Motion to Exclude Expert Testimony [Doc. No. 32] is
DENIED as moot.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: October 14, 2020

s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge

32