Epps v. Laudenschlager et al

Filing 87

ORDER ADOPTING 82 REPORT AND RECOMMENDATIONS by Chief Judge Ralph R. Erickson; granting 53 Motion for Summary Judgment; and granting 58 Motion for Summary Judgment.(CK)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Allen Christopher Epps,
Plaintiff,
Case No. 4:14-cv-48
v.
ORDER ADOPTING
REPORT AND RECOMMENDATION

Erik Laudenschlager, Steven Nagel,
Mark Kline, Caroline Folven, Minot
Police Department, Minot, City of,
Tony Mueller, and Sports on Tap,
Defendants.

The court has received a Report and Recommendation from the Honorable Alice
R. Senechal, United States Magistrate Judge, recommending that the defendants’
motions for summary judgment be granted and that Allen Christopher Epps’s (“Epps”)
complaint be dismissed with prejudice.1 Epps has objected to the Report and
Recommendation.2 His objection raises five discreet objections to the Report and
Recommendation.
First, Epps claims that the Magistrate Judge erroneously concluded that there
was insufficient evidence to create an issue of fact for the jury on the question of an
unconstitutional policy, custom or practice of the Minot Police Department.
Second, Epps claims that the Magistrate Judge committed error in finding
qualified immunity where (a) a white co-combatant Kyle Dalby was ignored at the scene
while he, Epps, was arrested; (b) the officers failed to process the crime scene in a way

1

Doc. #82.

2

Doc. #86.
1

that preserved the relevant evidence; (c) one of the officers, Mark Kline, failed to file a
police report covering the incident; and (d) the charge of Dalby with disorderly conduct
demonstrates a clear bias against Epps who was charged with terrorizing.
Third, Epps claims that the Magistrate Judge erroneously dismissed his claim for
Malicious Prosecution.
Fourth, Epps claims that the Magistrate Judge erroneously dismissed his state
law claims for Intentional Infliction of Emotional Distress.
Fifth, Epps asserts that the Magistrate Judges erroneously dismissed his claims of
negligence and negligent infliction of emotional distress under state law.
Because each of Epps’s claims are based on a misunderstanding of the applicable
law, each of his objections is DENIED and the Report and Recommendation is
ADOPTED without modification.
1. EPPS HAS FAILED TO ESTABLISH SUFFICIENT EVIDENCE TO CREATE A JURY
QUESTION ON THE ESTABLISHMENT OF AN UNCONSTITUTIONAL CUSTOM, POLICY OR
PRACTICE ON THE PART OF THE MINOT POLICE DEPARTMENT.
Epps first contends that the Magistrate Judge incorrectly found Epps failed to
establish an unconstitutional policy, custom, or practice of the Minot Police
Department. Specifically, Epps argues that the Minot Police Department treated him
differently than Kyle Dalby (“Dalby”) because of his race and that jury should be
allowed to consider whether this evidence alone is sufficient to establish a de facto
unconstitutional custom.3 Epps asserts that a jury question exists because “If the law
was enforced unilaterally, the defendants would be forced to reconcile with the jury as to

3

Id. at ¶¶ 2-3.
2

why I and my party were the only ones treated as criminals as result of the 911 call to the
scene.”4 From this allegation Epps draws the conclusion–which he claims a jury would
rationally draw as well–that he was subjected to disparate treatment as a result of race.
This contention is based on a false premise. In fact both Dalby and Epps were arrested
on the night in question.5 While the charges against each man were different, those
charging decisions were based on the separate observations made by the police at the
scene and are more than adequately explained in the record. Thus, Epps’s claims of
disparate treatment are simply unsustainable on the record before the Magistrate Judge.
There is no evidence sufficient to allow the finder of fact to conclude that disparate
treatment took place on the evening in question sufficient to give rise to any
constitutional claim–let alone a custom, policy or practice.
Even assuming, arguendo, that the Minot Police treated him differently than
Dalby, Epps has not pointed to any policy, practice or the custom that compelled the
disparate treatment. Instead he points to nothing other than this single incident, which
under the circumstances present in this case is insufficient to establish an
unconstitutional policy, practice or custom.
Epps also concedes that the policy manual of the police department is appropriate
and does not create an unconstitutional custom, practice or policy.6 He has pointed to
no other fact, other than the allegedly disparate treatment of Dalby supporting his claim

4

Id. at ¶3.

5

Doc. #65-3 at p. 2 (criminal history of Kyle Dalby, indicating that he was
arrested for disorderly conduct due to the fight at Sports on Tap).
6

Doc. #78 at p. 389-90..
3

that the Minot Police Department enforced an unconstitutional policy, practice or
custom. Under these circumstances, Epps’s objection fails as a matter of law.
2. THE MAGISTRATE JUDGE DID NOT COMMIT ERROR IN FINDING QUALIFIED
IMMUNITY FOR ALL MUNICIPAL DEFENDANTS.
Epps asserts that the Magistrate Judge incorrectly found that the municipal
defendants were entitled to qualified immunity on the false arrest claim because (1) a
jury question exists because a white co-combatant, Dalby, was ignored at the scene and
he, Epps, a black man, was arrested;7 (2) officers failed to procure, produce, preserve,
and pass on to appropriate entities evidence to support a good faith felony arrest;8 (3)
the record shows that officer Mark Kline, who allegedly stated that Epps did not issue
the threat, was the only officer who did not file a police report;9 and (4) the fact that
Dalby was charged with disorderly conduct and Epps was charged with felony
terrorizing demonstrates a clear unconstitutional racial bias rendering qualified
immunity inapplicable.10
A. Dalby was Arrested at the Scene and No Disparate Treatment Occurred.
Epps’s first point is simply erroneous. The record makes plain that Dalby was in
fact arrested on the evening in question and charged with disorderly conduct.11 The
question then turns to Epps’s assertion that he was disparately treated. Arresting

7

Doc. #86 at ¶4.

8

Id. at ¶9.

9

Id. at ¶8.

10

Id. at ¶5.

11

Doc. #65-3 at p. 2.
4

officers are not required to “conduct a mini trial” at the scene12 and, as the Magistrate
Judge correctly found, the facts known to them at the time satisfied probable cause to
arrest Epps.13
B. Epps’s Claim that the Crime Scene was not Properly Preserved is without
Merit.
Epps next claims that the officers are not entitled to qualified immunity because
they failed to properly preserve the crime scene. Epps points to no facts supporting this
claim other than his claim that the police reports are not entirely consistent and that
Mark Kline did not file a police report. He contends that a “cover up” is occurring.
While the court does not doubt Epps’s sincerity of belief, a mere suspicion is not
evidence. Epps has pointed to no actual evidence to support his claim of a cover-up or
that any evidence has been unconstitutionally suppressed. Epps’s suspicion is
insufficient as a matter of law to give rise to a jury question.
C. Kline’s failure to file a Police Report is Insufficient as a Matter of Law to
Defeat the Existence of Probable Cause for Epps’s Arrest.
It is indisputable that Officer Mark Kline did not file a police report concerning
the evening in question. Epps contends that this is evidence of a massive cover-up
because Kline gave information to Officer Laudenschlager that Epps did not make the
threat in question. This point fails because, even if Kline did tell Officer Laudenschlager
that Epps did not make the threat, the facts as known to Laudenschlager would still have

12

Smithson v. Aldrich, 235 F.3d 1058, 1064 (8th Cir. 2000) (citing Morrison v.
United States, 491 F.2d 344, 346 (8th Cir. 1974)).
13

Doc. #82 at pp. 8-10.
5

justified a reasonably prudent person in believing Epps committed the offense.14 A 9-1-1
call reported a fight at Sports on Tap, where a black man had a gun.15 While handcuffed,
Epps admitted ownership of the gun.16 When Officer Laudenschlager arrived, he
thought he heard Epps issue a threat to Dalby.17 Epps does not dispute that someone
made the threat, he simply denies that he made it.18 A reasonable officer under these
circumstances had probable cause to arrest Epps for terrorizing. While the purported
observation of Kline would be exculpatory evidence that needed to be disclosed to the
defense, it does not defeat Laudenschlager’s independent observations. Two people
observing the same incident will often recall that event differently. The evidence known
on the evening in question was more than sufficient to support a finding of probable
cause on a charge of terrorizing under North Dakota law.
D. Epps Cannot Rely on Charges against a Another Person for Determining His
Probable Cause.
Epps asserts that qualified immunity is inappropriate because the misdemeanor
disorderly conduct charges clearly show that he was overcharged and that the only
logical reason for this is racial bias. As stated above, the record clearly establishes the

14

Smithson v. Aldrich, 235 F.3d 1058, 1062 (8th Cir. 2000) (“Probable cause
exists if ‘the totality of facts based on reasonably trustworthy information would justify a
prudent person in believing the individual arrested had committed . . . an offense’ at the
time of the arrest.” (quoting Hannah v. City of Overland, Mo., 795 F.2d 1385, 1389 (8th
Cir. 1986)(quoting United States v. Wallraff, 705 F.2d 980, 990 (8th Cir. 1983)))).
15

Doc. #70-1 (transcript of 9-1-1 call).

16

Doc. #78 at pp. 212, 216.

17

Doc. #70-6, Officer Laudenschlager’s Affidavit of Probable Cause.

18

Doc. #78 at p. 337-38.
6

existence of probable cause for a charge of terrorizing. Epps completely fails to show
any fact that would support a rational conclusion that the misdemeanor charges against
Dalby shows an improper finding of probable cause in Epps’s case. Charges of another
person have no bearing upon the probable cause determination as against Epps unless
he proves something further: that the difference in charging was the result of
unconstitutional animus. In this case Epps has produced nothing more than his own
suspicions.
3. THE MAGISTRATE JUDGE DID NOT COMMIT ERROR BY DISMISSING EPPS’S CLAIM
FOR MALICIOUS PROSECUTION.
Epps next claims that the Magistrate Judge improperly dismissed his claim for
Malicious Prosecution. Epps essentially argues that the Municipal defendants
improperly (1) passed on prejudicial information to his employer;19 (2) that he was
singled out for disparate treatment as Dalby was charged with disorderly conduct and he
was charged with terrorizing;20 (3) the affidavits of probable cause are contradictory on
their face and evidence of malicious prosecution;21 and (4) the Magistrate Judge ignored
the discrepancies in the official reports.22
Under § 1983, if malicious prosecution is a cognizable cause of action–an open
question-- probable cause alone is a sufficient basis to defeat the claim.23 Under North

19

Doc. #86 at ¶7.

20

Id. at ¶5.

21

Id. at ¶10.

22

Id. at ¶11.

23

Harrington v. City of Council Bluffs, 678 F.3d 676, 679 (8th Cir. 2012).
7

Dakota Law,24 Epps is unable to meet three of the essential elements of a malicious
prosecution claim. First he must establish a criminal proceeding was instituted or
continued by a defendant against the plaintiff.25 Epps fails to meet this element because
the charge was brought and maintained by the Ward County States Attorney who is not
a party to this action. The second element that Epps fails to satisfy is the requirement
that there is an absence of probable cause. Finally, Epps fails to meet a showing that the
prosecution was the result of malice as opposed to an intention to bring a lawbreaker to
justice.
4. THE MAGISTRATE JUDGE DID NOT COMMIT ERROR BY DISMISSING THE
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM.
In order to have a cognizable claim for Intentional Infliction of Emotional
Distress, Epps must establish “extreme and outrageous conduct.”26 Extreme and
outrageous conduct “is narrowly limited to outrageous conduct which exceeds ‘all
possible bounds of human decency’.”27 In other words, before liability for intentional
infliction of emotional distress lies, the conduct complained of must be “atrocious and
utterly intolerable in a civilized community.”28

24

Richmond v. Haney, 480 N.W.2d 751, 755 (N.D. 1992) (stating the essential
elements as “1. A criminal proceeding instituted or continued by the defendant against
the plaintiff. 2. Termination of the proceeding in favor of the accused. 3. Absence of
probable cause for the proceeding. 4. ‘Malice,’ or a primary purpose other than that of
bringing an offender to justice”).
25

Id.

26

Muchow v. Lindblad, 435 N.W.2d 918, 924 (N.D. 1989).

27

Id.

28

Id.
8

As examples of outrageous conduct Epps points to two “facts.” First he claims
that he has been effectively rendered a felon because the charges were filed, dismissed
without apology and that prejudicial information was passed on to his employer, the
United States Air Force.29 As discussed above, the charges were filed with full probable
cause. Epps points to the outrage of the failure to apologize and the passing on of
truthful, if controverted, information.30 None of these actions remotely approaches
satisfying the atrocious conduct that is utterly intolerable in a civilized society standard.
At most they show that the defendants were mistaken–which would be insufficient even
to support a claim of negligence.
5. EPPS HAS FAILED TO ESTABLISH A VALID CLAIM FOR NEGLIGENCE OR NEGLIGENT
INFLICTION OF EMOTIONAL DISTRESS.
Lastly, Epps objects to the Magistrate Judge’s holding that Mueller and Sports on
Tap were not negligent as a matter of law. A review of the record reveals a paucity of
information that would allow a finder of fact to conclude that the Mueller defendants
lacked reasonable cause to believe that Dalby posed a risk to patron safety. Likewise, the
undisputed evidence shows that once the altercation erupted the Mueller defendants
made reasonable efforts to break up the fight and ejected the combatants separately to
try and make sure that the fight did not continue outside the premises. While Epps
makes much of a previous incident involving Dalby, there is simply nothing in the record
to allow a finder of fact to determine that the previous altercation was of such a nature
that the Mueller defendants should have anticipated the sort of brawl described by Epps.

29

Doc. #86 at ¶12

30

Id.
9

Because Epps has failed to establish any fact in dispute in the record that would give rise
to a material issue to be decided by the finder of fact, the Magistrate Judge correctly
dismissed the claim.
Finally, Epps asserts that the court improperly dismissed his negligent infliction
of emotional distress claim. North Dakota law requires a showing of a bodily harm in
order to establish a claim for negligent infliction of emotional distress.31 In his
deposition Epps denied having any bodily injury beyond a bloody lip which healed
quickly. He asserted that he had no need for psychiatric or psychological services. In
short, Epps described the absence of any bodily harm sufficient to support a claim for
damages under a theory of negligent infliction of emotional distress.
Having reviewed the Report and Recommendation, conducted a de novo review
of Epps’s objections, as well as the entire record in this matter, the court finds that the
Magistrate Judge’s analysis of the claims and recommendations for disposition are
consistent with applicable law. The court further finds that the objections raised by
Epps are without legal merit. For the reasons outlined by the Magistrate Judge, the
court ADOPTS the Report and Recommendation in its entirety. The defendants’
motions for summary judgment are GRANTED. Epps’s complaint is DISMISSED
WITH PREJUDICE.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

31

Hougum v. Valley Mem. Homes, 574 N.W.2d 812, 819 (N.D. 1998).
10

Dated this 4th day of March, 2016.
/s/ Ralph R. Erickson
Ralph R. Erickson, Chief District Judge
United States District Court

11