Reints v. City of Rapid City, South Dakota et al

Filing 153

ORDER granting 123 Motion for Summary Judgment; adopting 147 Report and Recommendation. Signed by U.S. District Judge Jeffrey L. Viken on 2/18/20. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 13-5043-JLV

JOHN REINTS,
Plaintiff,

ORDER

vs.
CITY OF RAPID CITY, SOUTH
DAKOTA; JASON GREEN, individually;
BRAD SOLON, individually;
JOEL LANDEEN, individually;
WADE NYBERG, individually;
ANDY CHLEBECK, individually,
Defendants.

INTRODUCTION
United States Magistrate Judge Veronica L. Duffy filed a report and
recommendation (“R&R”). (Docket 147). Plaintiff John Reints filed objections
to the R&R. (Docket 148). Defendants filed a response to plaintiff’s
objections. (Docket 149). For the reasons stated below, plaintiff’s objections
to the R&R are overruled. The court adopts the R&R consistent with this
order. The facts underlying this lawsuit are set out in the R&R. (Docket 147
at pp. 2-8).
ANALYSIS
Plaintiff’s amended complaint asserts claims under 42 U.S.C. § 1983 and
state law claims against the defendants. (Docket 48). The defendants filed
their answers to plaintiff’s complaint. (Dockets 49 & 52-56). Defendants

raise several affirmative defenses, including qualified immunity and statute of
limitations.
Defendants filed a motion for summary judgment, together with an
affidavit, 19 exhibits, a statement of undisputed material facts, and a legal
memorandum. (Dockets 123, 126, 126-1 through 126-19, 127 & 128).
Plaintiff filed an affidavit, four supplements to the affidavit, 69 exhibits, a
statement of undisputed material facts, a response to defendants’ statement of
undisputed material facts, a legal memorandum in opposition to defendants’
motion for summary judgment and a supplemental memorandum. (Dockets
132, 132-1through 132-8, 133, 134, 135, 135-1 through 135-15, 137, 137-1
through 137-8, 138, 138-1 through 138-16, 139, 139-1 through 139-19, 140,
144 and 144-1 through 144-11). Defendants filed a reply brief in support of
summary judgment, an affidavit and eight exhibits. (Dockets 145, 146 & 1461 through 146-8).
Pursuant to 28 U.S.C. § 636, defendants’ motion for summary judgment
was referred to Magistrate Judge Duffy. (Docket 143). The magistrate judge
issued a R&R addressing defendants’ motion. (Docket 147). The R&R
recommended “that defendants’ motion for summary judgment . . . be granted
in its entirety and that Mr. Reints’ amended complaint be dismissed with
prejudice.” Id. at p. 48. Mr. Reints timely filed objections to the R&R.
(Docket 148). Pursuant to Fed. R. Civ. P. 72(b)(2) defendants timely filed a
response to plaintiff’s objections. (Docket 149). Mr. Reints filed a two-part
2

reply to defendants’ response to plaintiff’s objections. (Dockets 151 & 152).
There is no provision in the Federal Rules of Civil Procedure or the court’s local
rules authorizing the filing of a reply. The court finds the filing to be out of
order, repetitious of plaintiff’s objections and it will be disregarded.
Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files
written objections to the magistrate judge’s proposed findings and
recommendations, the district court is required to “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id. The court may “accept,
reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” Id.
Plaintiff filed 61 objections to the R&R. (Docket 148). Many of
plaintiff’s numbered objections are restatements of the procedural history of
this case which do not require resolution by the court. Others are
inflammatory comments or derogatory arguments regarding the defendants,
their attorneys or the magistrate judge which the court finds to be of no
assistance in resolving plaintiff’s objections under Section 636(b)(1). The court
will group Mr. Reints’ objections into the categories addressed in the R&R.
STATUTE OF LIMITATIONS
Mr. Reints’ objection asserts the R&R “erroneously apply the three-year
statute of limitations to the time between separate, past acts of spoliation, as
controlling how far back a series of acts comprising a regular practice of
3

spoliation or any other continuing violation can go.” (Docket 148 ¶ 23). He
argues “[t]here is no such limitation.” Id. Mr. Reints contends the R&R erred
in failing to consider “Defendants 2007 and 2003 acts of spoliation of evidence
and violations of Reints’ procedural and substantive due process rights[.]” Id.
¶ 24 (referencing In re: Pre-Filled Propane Tank Antitrust Litigation, 860 F.3d
1059 (8th Cir. 2017); Brenner v. Local 514, United Brotherhood of Carpenters
and Joiners of America, 927 F.2d 1283 (3d Cir. 1991)). Mr. Reints identifies
several of what he labels as “the regular practice of spoliation of evidence”
occurring in 2001, 2007 and 2010-11. Id. ¶ 25.
As the court determined in a previous order, “[s]ince neither 42 U.S.C.
§ 1983 or 42 U.S.C. § 1985 define the time within which suits thereunder must
be brought, the court must look to the most applicable South Dakota statute of
limitations to determine whether this action is barred.” (Docket 63 at p. 2)
(brackets omitted; citing Johnson v. Dailey, 479 F.2d 86, 88 (8th Cir. 1973)).
“In South Dakota, a specific statute provides that civil rights actions must be
brought within three years after the alleged constitutional deprivation occurred
or the action will be barred.” Id. (citing Bell v. Fowler, 99 F.3d 262, 266 (8th
Cir. 1996) (citing S.D.C.L. § 15–2–15.2)). The R&R recognized the three-year
statute of limitations in South Dakota. (Docket 147 at p. 12) (referencing
S.D.C.L. § 15-2-15.2). Mr. Reints does not challenge this legal conclusion.

4

The R&R considered Mr. Reints’ tolling of the statute of limitations
argument. Id. at p. 14. The R&R recognized that the continuing tort theory
may toll the statute of limitations.
The reason a continuing tort suspends the running of the statute of
limitations is that when no discrete occurrence in continually
wrongful conduct can be singled out as the principal cause of the
damage, the law regards the cumulative effect as actionable, and
allows the limitations period to begin when the wrongful conduct
ends.
Id. at pp. 14-15 (citing Brandt v. County of Pennington, 827 N.W.2d 871, 875
(S.D. 2013)). To constitute a continuing tort, the R&R acknowledged the
wrongful conduct must persist over time. Id. at p. 14 (citing Brandt, 827
N.W.2d at 875).
The R&R found Mr. Reints’ amended complaint did not allege “any
violative acts took place between spring 2007 and early summer 2010.” Id. at
p. 15 (referencing Docket 48 ¶¶ 68-69). Mr. Reints’ objection fails to identify
any conduct, allegedly overlooked by the magistrate judge, which occurred
during this critical time period. See Docket 148 ¶ 25. The antitrust case law
cited by Mr. Reints is not helpful to the analysis in this § 1983 case.
The court adopts the magistrate judge’s finding “that the city’s allegedly
violative behavior ceased for those three years—i.e. it was non-continuing.”
(Docket 147 at p. 15).

Because Mr. Reints fails to identify any alleged

misconduct during the critical period, “the continuing tort theory does not
apply[.]” Id. Brandt does not grant Mr. Reints the tolling of the statute of
limitations which he seeks to invoke. Mr. Reints’ complaint was filed on June
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7, 2013. (Docket 1). Only plaintiff’s claims allegedly occurring on or after
June 7, 2010, remain viable in this litigation. S.D.C.L. § 15-2-15.2.
Plaintiff’s objections (Docket 148 ¶¶ 23-25) are overruled.
QUALIFIED IMMUNITY
“Qualified immunity is synonymous with good faith immunity in the
context of public employees.” (Docket 63 at p. 1) (referencing Harlow v.
Fitzgerald, 457 U.S. 800, 815 (1982); Sanders v. Sears, Roebuck & Co., 984
F.2d 972, 976 (8th Cir. 1993)). “Qualified immunity protects government
officials from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable
person would have known.” Id. (citing Sisney v. Reisch, 674 F.3d 839, 844
(8th Cir. 2012) (internal citations and quotation marks omitted). “[Q]ualified
immunity . . . is both a defense to liability and an entitlement not to stand trial
or to face the other burdens of litigation.” Id. at pp. 1-2 (citing Kendrick v.
Pope, 671 F.3d 686, 689 (8th Cir. 2012); referencing Angarita v. St. Louis
County, 981 F.2d 1537, 1548 (8th Cir. 1992) (“The doctrine of qualified
immunity aims to keep public officials out of the court.”)).
The magistrate judge properly analyzed the law of qualified immunity.
(Docket 147 at pp. 15-18). Plaintiff does not challenge this analysis. (Docket
148 ¶¶ 43-53).
Mr. Reints challenges the application of qualified immunity to the
undisputed facts in this case. Plaintiff’s objections assert his “constitutional
6

right to pre-deprivation notice . . . was not diminished by the theoretical
availability of post-deprivation remedies.” Id. ¶ 43. The court will address
this objection considering plaintiff’s procedural due process claims. Those
procedural due process claims, identified by the magistrate judge are:
1.

The removal of plaintiff’s elm tree;

2.

The removal of his van from the front driveway;

3.

The abatement of snow and ice from plaintiff’s sidewalk in
early 2011;

4.

The August 12, 2012, abatement of too-tall grass from his
yard; and

5.

The four unspecified notices of ordinance violations issued
between August 2010 and the filing of plaintiff’s amended
complaint.

See Docket 147 at p. 20.
Plaintiff’s objections to the R&R fail to address the assessments identified
in subsections #3-#5. See Docket 148 ¶¶ 43-53. As to those procedural due
process claims, the magistrate specifically found “Mr. Reints admits he was
offered hearing on those property deprivations. He availed himself of one such
hearing. He refused to attend a second hearing that was offered and
scheduled by the city for him. As to the other four notices, he deliberately
chose not to avail himself of his right to those hearings because of his
conviction that the hearing board was biased.” (Docket 147 at p. 21).
Because Mr. Reints did not file a specific objection to this portion of the
R&R, he waived review by the court. See Fed. R. Civ. P. 72(b)(3) (“The district
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court must determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.”); Thomas v. Arn, 474 U.S. 140, 152 (1985)
(“There is no indication that Congress, in enacting § 636(b)(1)(C), intended to
require a district judge to review a magistrate’s report to which no
objections are filed. It did not preclude treating the failure to object as a
procedural default, waiving the right to further consideration of any sort.”);
Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (“Appellant’s failure to file
any objections waived his right to de novo review by the district court of any
portion of the report and recommendation of the magistrate judge as well as his
right to appeal from the findings of fact contained therein.”). The court is left
with an obligation to analyze the R&R in light of Mr. Reints’ specific objections
to the removal of his tree and van.
The city ordinances at issue specifically require “serving notice of
ordinance violations upon citizens via the United States Mail.” (Docket 147 at
p. 20. Mr. Reints acknowledges the city’s compliance with the notice
provision. “There is no dispute about the fact [the City of Rapid City] mailed,
or caused to be mailed, post-card notices with 7-day appeal periods
threatening these abatements.” (Docket 148 ¶ 43). Plaintiff’s argument is
that “[b]oth [city officials] were aware that Reints was distant from Rapid City
and would not receive these notices within 7 days. Both men knew that either
one could inform Reints instantly about the notices by email.” Id.

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The undisputed material facts disclose plaintiff’s friend, Mr. Kettering,
checked Mr. Reints’ “mail more than once a per week, likely two or three times
per week, while Reints was gone and called Reints to notify him of
anything important that was received.”1 (Docket 127 ¶ 64). Plaintiff does not
dispute this statement of fact. (Docket 133 ¶ 64). Plaintiff’s caveat to the
statement is that Mr. Kettering “didn’t open [Mr. Reints’] mail, though.” Id.
Plaintiff’s caveat is misleading because the abatement notices were
issued and mailed as post-cards. (Docket 148 ¶ 43). See the bottom half of
Dockets 126-6 and 126-7. Even if the abatement notices were contained in an
envelope, Mr. Kettering had a power of attorney from Mr. Reints to handle his
mail. (Docket 126-19 at p. 10:17-21).2 Mr. Kettering testified that if he
received a notice of abatement from the city, he called Mr. Reints immediately.
(Docket 127 ¶ 65).
Mr. Reints asserts that because he directed the city officials to provide
him with e-mail notice of the abatement notices, this constituted his
“constitutional right to pre-deprivation notice[.]” (Docket 148 ¶ 43) (Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)).

1Mr.

Kettering testified that “[d]uring the summer of 2010, I was looking
after John Reints’ house at 234 South Canyon Road, Rapid City, in his
absence.” (Docket 48-2 at p. 1).
2The

court references the page in CM/ECF as opposed to the page
number of the transcript.
9

“The Due Process Clause of the Fourteenth Amendment requires that a
[municipality], prior to taking an action affecting an interest in property,
provide notice that is reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of that action.” Kornblum v. St.
Louis Count, Mo., 72 F.3d 661, 663 (8th Cir. 1995) (referencing Mennonite Bd.
of Missions v. Adams, 462 U.S. 791, 795 (1982); Mullane, 339 U.S. at 314).
“The general rule that emerges from the Mullane case is that notice by
publication is not enough with respect to a person whose name and address
are known or very easily ascertainable and whose legally protected interests are
directly affected by the proceedings in question.” Schroeder v. City of New
York, 371 U.S. 208, 212-13 (1962) (referencing Mullane, 339 U.S. at 318)
(‘Where the names and post office addresses of those affected by a proceeding
are at hand, the reasons disappear for resort to means less likely than the
mails to apprise them of its pendency.”).
“In general, procedural due process requires that a hearing before an
impartial decision maker be provided at a meaningful time, and in a
meaningful manner, prior to a governmental decision which deprives
individuals of a . . . property interest.” Samuels v. Meriwether, 94 F.3d 1163,
1166 (8th Cir. 1996) (referencing Mathews v. Eldridge, 424 U.S. 319, 332–33
(1976)). “[W]here a property owner is given written notice to abate a hazard on
his . . . property and has been given an opportunity to appear before the proper
municipal body considering condemnation of the property, no due process
10

violation occurs when the municipality abates the nuisance pursuant to the
condemnation notice.” Id. at 1166-67.
The court finds the city’s ordinance giving property owners seven-days
advance notice of an intent to abate a nuisance if not corrected by the property
owner during the intervening period, and the right to a hearing during that
intervening period, satisfied procedural due process. Samuels, 94 F.3d at
1166. Mr. Reints and his power of attorney, Mr. Kettering, received proper
notice of the city’s directive and intentions.3
Even were the court to find Mr. Reints was entitled to e-mail notification
of the notices of abatement, the city employee’s negligent failure to send the
notices to the proper e-mail address would not constitute a procedural due
process violation. When an employee’s action is done outside of the
established municipal policies and procedures, the “employee’s acts do not
violate ‘the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is
available.’ ” Clark v. Kansas City Missouri School District, 375 F.3d 698, 702
(8th Cir. 2004) (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984)). “This rule
is premised on ‘the [municipality’s] action . . . not being complete until and

3The

magistrate judge found that despite the seven-day abatement
notices, the tree was not removed for approximately six weeks and the van was
not removed until 20 days after the respective notices were issued. (Docket
147 at p. 21).
11

unless it provides or refuses to provide a suitable postdeprivation remedy.” Id.
(citing Hudson, 468 U.S. at 533; brackets omitted).
Like the State of Missouri in Clark, South Dakota’s postdeprivation
remedy for the recovery of personal property is a replevin action. (Docket
147 at p. 22) (referencing S.D.C.L. §§ 21-14-1 and Chap. 21-15). In a South
Dakota replevin action, Mr. Reints could have obtained recovery of his van
upon the filing of an affidavit and bond with the circuit court. S.D.C.L.
§§ 21-15-2 & 21-15-4. Mr. Reints also could have sought money damages
from Rapid City for the removal of the tree. S.D.C.L. § 21-1-1. These “state
remedies” are “adequate to satisfy the requirements of due process.” Clark,
375 F.3d at 703 (citing Parratt v. Taylor, 451 U.S. 527, 544 (1981)). The
availability of further action within the state court system defeats plaintiff’s
claim. King v. City of Crestwood, Missouri, 899 F.3d 643, 650 (8th Cir. 2018).
The magistrate judge properly considered the law applicable to procedural due
process claims and correctly applied the law to Mr. Reints’ case. (Docket 147
at pp. 19-24).
Plaintiff’s objections (Docket 148 ¶¶ 29-30 and 32-34) are overruled.
SUBSTANTIVE DUE PROCESS
Plaintiff’s objection to the R&R asserts none of the case law analyzed and
applied by the magistrate judge “involved profound effects on their plaintiffs’
personal security and ability to have a home.” (Docket 148 ¶ 35). Mr. Reints’
objection focuses on the magistrate judge’s claimed failure to consider the
12

“imperative commands by an official to replace the entire roof of Reints’ modest
home, followed by the same official’s pleading in court that ‘no determination’
that the roof had to be replaced was ever made.” Id. Because of this, plaintiff
asserts he “lived in fear for several years that Defendants would suddenly
‘abate’ his roof and impose a special assessment that would cause him to loose
[sic] his home.” Id.
Mr. Solon’s apparent threat that the roof on Mr. Reints’ home needed to
be replaced occurred in 2007. (Docket 134 ¶¶ 11-14; see also Docket 48
¶¶ 54-62). The court already ruled it will not consider any of plaintiff’s claims
occurring beyond the three-year statute of limitations. See supra at
p. 6. Plaintiff asserts no other objections to the R&R’s analysis of his
substantive due process claims.
The magistrate judge properly analyzed the law of substantive due
process rights. (Docket 147 at pp. 24-27). “[T]he theory of substantive due
process is properly reserved for truly egregious and extraordinary cases[.]”
Chesterfield Development Corp. v. City of Chesterfield, 963 F.2d 1102, 1105
(8th Cir. 1992). To constitute a substantive due process violation “a case
must be so abusive as to be ‘offensive to human dignity.’ ” Azam v. City of
Columbia Heights, 865 F.3d 980, 986 (8th Cir. 2017) (citing New v. City of
Minneapolis, 792 F.2d 724, 726 (8th Cir. 1986)). Even if the court were to
adopt Mr. Reints’ embellishment of the facts, which the court does not accept,
his case does not rise to the level of being “offensive to human dignity.” Id.
13

Plaintiff’s objection (Docket 148 ¶ 35) is overruled.
EQUAL PROTECTION CLAIM
Mr. Reints’ objection asserts he is entitled to a “class of one”
consideration of his equal protection claim. (Docket 148 ¶¶ 36-40). Plaintiff
contends his successful defeat of the city’s 2007 criminal prosecution entitles
him to proceed as a “class of one.” (Id. ¶ 36) (referencing Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Mr. Reints asserts as a
second justification for “his class-of-one claim is that Defendants have, as a
regular practice during the years including 2007-2011, willfully and
maliciously falsified evidence in relation to alleged ordinance violations at his
home.” Id. ¶ 39. Plaintiff includes the 2007 roof replacement issues as an
additional basis for justification of his class-of-one status. Id. ¶ 40.
The magistrate judge considered Olech. (Docket 147 at pp. 30-31). The
R&R concluded that Novotny v. Tripp County, South Dakota, 664 F.3d 1173
(8th Cir. 2011) prevents Mr. Reints from prevailing on his class-of-one claim.
The issuance of ordinance violation notices to Mr. Reints was based
on ordinances that are uniformly applicable and the decision to
issue a notice to Mr. Reints is based on a number of subjective
factors within the purview of the city’s officials’ discretionary
authority. . . . Under such facts, the class-of-one theory does not
apply. Mr. Reints has failed to otherwise demonstrate that others
similarly situated to himself are treated differently.
(Docket 147 at pp. 32-33) (referencing Novotny, 664 F.3d at 1179).
The magistrate judge properly applied Novotny. “[A] class-of-one claim
does not extend to cases where the rules are uniformly applicable and a [city]
14

official exercises his ‘discretionary authority based on subjective, individualized
determinations.’ ” Novotny, 664 F.3d at 1179 (citing Engquist v. Oregon
Department of Agriculture, 553 U.S. 591, 602-03 (2008). Although Mr. Reints
may have felt other citizens of Rapid City received better or different treatment
than he did, the enforcement of the city’s abatement ordinances “was based on
a number of subjective facts within the purview of the [city] officials
discretionary authority.” Id. (referencing Engquist, 553 U.S. at 604).
Plaintiff’s objections (Docket 148 ¶¶ 36-40) are overruled.
TAKING WITHOUT JUST COMPENSATION
Plaintiff objects to the R&R’s conclusion that Mr. Reints waived any
takings claim. (Docket 148 ¶ 42). Mr. Reints “asserts that he did not waive
his takings claims, for the reasons set forth in his Plaintiff’s Affidavit
Concerning his Takings Claim[.]” Id. (italics omitted; referencing Docket 1481). The objection contends plaintiff’s takings claim specifically relate to his
“living, front-yard tree and the taking from my driveway of my Plymouth
minivan by Defendants.” (Docket 148-1 ¶ 2).
The magistrate judge found Mr. Reints testified at his deposition that he
was asserting only a due process Fifth Amendment claim. (Docket 147 at
p. 35). The magistrate judge found that even though Mr. Reints reserved the
right to read and sign his deposition and he did not do so, his deposition
answer stands. Id.

15

Mr. Reints acknowledged he reserved the right to read and sign his
deposition. (Docket 148-1 ¶ 6). He did not do so because, “[t]hough I
planned to review the deposition for accuracy, an obligation to a friend
intervened so that I never read or signed the deposition. Moreover, had I done
so, I would not have been willing to try to falsify what I said at deposition.” Id.
(emphasis omitted).
The Federal Rules of Civil Procedure specifically permit a deponent to
review and make changes to a deposition. “On request by the deponent . . .
before the deposition is complete, the deponent must be allowed 30 days after
being notified by the officer [court reporter] that the transcript . . . is available
in which . . . to review the transcript . . . and . . . if there are changes in form or
substances, to sign a statement listing the changes and reasons for making
them.” Fed. R. Civ. P. 30(e)(1)(A) & (B).
“While a court generally affords pro se filings a liberal construction, a
litigant’s pro se status does not excuse him from reading the Federal Rules of
Civil Procedure.” Jiricko v. Moser & Marsalek, P.C., 184 F.R.D. 611, 615 (E.D.
Mo. 1999), aff’d, 187 F.3d 641 (8th Cir. 1999) (referencing McNeil v. United
States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural
rules in ordinary civil litigation should be interpreted so as to excuse mistakes
by those who proceed without counsel.”).
“[Mr. Reints] must be bound by his own testimony and admissions
against interest.” State Farm Mutual Automobile Ins. Co. v. Bonacci, 111 F.2d
16

412, 419 (8th Cir. 1940). See also Robe v. Allender, Civ. No. 09-5040, 2012
WL 704201, at *20 (D.S.D. March 4, 2012) (“[A] party cannot avoid summary
judgment by contradicting his own earlier testimony.”) (citing Prosser v. Ross,
70 F.3d 1005, 1008 (8th Cir. 1995) (citing Wilson v. Westinghouse Electric
Corp., 838 F.2d 286, 289 (8th Cir. 1988) (citing Camfield Tires, Inc., v.
Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983).
The magistrate judge found Mr. Reints waived any right to assert a
takings claim because his resistance to defendants’ motion for summary
judgment consisted of “a solitary sentence . . . . [and] Mr. Reints supplies no
law or argument in support of his takings claim other than that one solitary
sentence.” (Docket 147 at p. 36) (referencing Docket 140 at p. 10 ¶ 14).
When this matter was referred to a magistrate judge, the parties were
“required to present all of [their] arguments to the magistrate judge, lest they
be waived.” Ridenour v. Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062,
1067 (8th Cir. 2012). The court finds Mr. Reints did “not present any separate
meaningful argument on [this] constitutional contention[].” DRB No. 24, LLC
v. City of Minneapolis, 774 F.3d 1185, 1190 n.5 (8th Cir. 2014). Mr. Reints
waived consideration of his Fifth Amendment takings claim by failing to submit
argument and case authority to support that claim. Id.
Plaintiff’s objection (Docket 148 ¶ 42) is overruled.
MUNICIPAL LIABILITY
Mr. Reints’ objection asserts “limited, additional discovery . . . is
necessary . . . to establish which individuals have acted as policy makers.”
17

(Docket 148 ¶ 56). For this reason, he asserts “it is premature to find no
municipal liability.” Id.
The magistrate judge “concluded that Mr. Reints has failed to show any
constitutional violations. Therefore, there can be no municipal liability based
upon an alleged policy or custom designed to violate constitutional rights.”
(Docket 147 at p. 43) (italics in original). The magistrate judge recommended
granting defendants’ motion to dismiss as to the city. Id. at p. 44.
By an August 5, 2019, order the court granted Mr. Reints’ motion to
conduct addition Fed. R. Civ. P. 56(d) discovery prior to resolving defendants’
motion for summary judgment. (Docket 131 at p. 8). The order compelled
defendants to answer plaintiff’s written discovery requests by August 26, 2019,
and required plaintiff to complete the eight depositions he identified by
September 19, 2019. Id. at p. 9 (referencing Docket 109-2 at pp. 2, 11 & 13).
The court granted Mr. Reints the time he requested to conduct the
additional discovery contemplated.

See Dockets 121 ¶ 23 and 131. The

court admonished the parties it “intends to address defendants’ motion for
summary judgment based on the time frame set by this order” and “that no
further extensions of the deadlines established by this order will be granted.”
(Docket 131 at pp. 8-9). Mr. Reints presented no cause, let alone good cause,
showing he was unable to comply with the court’s final discovery order.
Plaintiff’s objection (Docket 148 ¶ 56) is overruled.

18

CIVIL CONSPIRACY
Mr. Reints’ objection asserts “the individual Defendants’ stonewalling in
their interrogatory and admissions responses renders it premature to find no
civil conspiracy on the basis of the [R&R].” Id. ¶ 57.
The magistrate judge found “Mr. Reints does not address his conspiracy
counts in responding to defendants’ summary judgment motion.” (Docket 147
at p. 40) (referencing Dockets 140 & 141). Because of plaintiff’s failure to brief
those claims, the magistrate judge recommended the motion to dismiss should
be granted as to counts six and eight of the amended complaint. Id.
As indicated earlier, the court compelled the defendants to complete their
responses to plaintiff’s written discovery requests by August 26, 2019.
(Docket 131 at pp. 8-9). The order admonished the parties that “[a]ny further
delays caused by dilatory actions or objections interposed without legal merit
will result in sanctions against the offending party.” Id. at p. 8 (referencing
Fed. R. Civ. P. 1 and 37).
Plaintiff never filed a motion to compel defendants to comply with the
court’s discovery order. Fed. R. Civ. P. 37. The time for doing so expired.
Mr. Reints presents no cause, let alone good cause, showing he was unable to
timely file a motion to compel pursuant to Fed. R. Civ. P. 37.
Plaintiff’s objection (Docket 148 ¶ 57) is overruled.
ORDER
Based on the above analysis, it is
ORDERED that plaintiff’s objections (Docket 148) are overruled.
19

IT IS FURTHER ORDERED that the report and recommendation (Docket
147) is adopted in full.
IT IS FURTHER ORDERED that defendants’ motion for summary
judgment (Docket 123) is granted.
IT IS FURTHER ORDERED that plaintiff’s amended complaint (Docket
48) is dismissed with prejudice.
Dated February 18, 2020.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE

20