Opinion
Case No. 02-4744 ADM/JSM.
April 20, 2005
Jill Clark, Esq., Jill Clark, P.A., Golden Valley, MN, and Jill Waite, Esq., Waite Law Office, Minneapolis, MN, appeared for and on behalf of Plaintiffs.
Meghan L. Riley, Esq., Assistant St. Paul City Attorney, St. Paul, MN, appeared for and on behalf of Defendants.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On March 1, 2005, oral argument before the undersigned United States District Judge was heard on Defendants St. Paul Police Department, Officers Bain, Sleavin, and Stokes, Does 1-10, and the City of St. Paul's (collectively, "Defendants") Motion for Partial Summary Judgment [Docket No. 118]. Plaintiffs Patrick Fearing, Kayla Fearing, Tiffany Fearing, and Melady Fearing's (collectively, "Plaintiffs") Third Amended Complaint ("Complaint") [Docket No. 99] allege a number of claims arising from the arrest of Patrick Fearing. For the reasons set forth below, Defendants' Motion is granted.
Melady Fearing's name was misspelled as "Melody" in the original case caption. The caption will henceforth reflect the correct spelling of her name.
II. BACKGROUND
Plaintiff Patrick Fearing ("Fearing") resides with his three daughters, Kayla, Tiffany, and Melady Fearing (the "Fearing daughters"). Riley Aff. [Docket No. 86] Ex. 1. On the evening of December 31, 2001, New Year's Eve, Plaintiffs were at their home, 439 St. Clair Avenue in St. Paul. Fearing Dep. (Riley Aff. Ex. 4) at 34-35. At approximately 11:00 p.m., Patrick Fearing ignited several fireworks while his daughters watched. Id. at 36. The firecrackers came from a bag of fireworks that Fearing kept in his basement. Id. at 36, 46. After setting off the fireworks, Fearing placed the bag with the remaining fireworks on the kitchen table, and sat down with Colleen Harens, a friend, to watch television. Id. at 36.Also at approximately 11:00 p.m., St. Paul Police Officers Jason Bain, Terrence Sleavin, and David Stokes were at a gas station on St. Clair and West Seventh Street. Bain Aff. [Docket No. 87] Ex. A; Sleavin Aff. [Docket No. 88] Ex. A; Stokes Aff. [Docket No. 89] Ex. A. Officer Stokes first heard what he believed to be a gunshot emanating from across St. Clair Avenue.Id. All three officers then heard a second noise, which they assumed to be a gunshot, coming from the area of 439 St. Clair.Id. While proceeding to investigate, the officers heard a third gunshot-like noise. Id.
As the officers approached 439 St. Clair, they smelled gunpowder. Id. As they entered the backyard of 439 St. Clair, Officer Sleavin saw a white male, dressed in a t-shirt and pants, emerge from the bushes from the direction from which the gunshot sounds originated. Sleavin Aff. Ex. A. The man was Patrick Fearing, who denied firing a gun when questioned by the officers. Fearing Dep. at 39. When asked if he had been setting off fireworks, Fearing, after hesitating, affirmed that he had. Id. However, Fearing told the officers they could not enter his house without a warrant. Id. at 40. A physical altercation then occurred between Fearing and the officers. Id. at 40-41; Sleavin Aff. Ex. A; Stokes Aff. Ex. A; Bain Aff. Ex. A.
Following the altercation, the officers handcuffed Fearing and placed him in a squad car. Id. The officers then retrieved the bag of fireworks from the home. Fearing Dep. at 42. The officers first took Fearing to Regions Hospital, where he refused treatment, save for diagnostic x-rays. Id. at 42, 134. The officers issued citations for disorderly conduct, obstructing legal process, and the illegal sale, possession, or use of fireworks. The officers then released Fearing. Id. at 43. On March 20, 2002, Fearing pled guilty to violation of the illegal sale, possession, or use of fireworks. Id. at 56; Riley Aff. Ex. 3.
III. DISCUSSION
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party 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." Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
B. Dismissal of the Doe Defendants
Defendants argue Does 1-10 should be dismissed, as Plaintiffs failed to serve a summons and complaint or identify why unidentified persons should remain in the lawsuit. Plaintiffs do not oppose this motion, consequently, Does 1-10 will be dismissed from the action.
C. Fifth Amendment Claim
In their Second Amended Complaint, Plaintiffs alleged a Fifth Amendment violation. It appears, however, that any reference to the Fifth Amendment has been removed in the Third Amended Complaint. If Plaintiffs are still pursuing a Fifth Amendment claim, it must be dismissed for the reasons set forth below.
Although Plaintiffs do not specify what portion of the Fifth Amendment they believe was violated, presumably they are alleging a deprivation of due process. Defendants argue that the Fifth Amendment Due Process Clause applies only to invasions of civil liberties by the federal government, not by state actors. See Bartkus v. Illinois, 359 U.S. 121, 124-27 (1959).
In response, Plaintiffs aver the Fifth Amendment was made applicable to the states through the Fourteenth Amendment. This argument, however, is technically inaccurate. Rather than apply the Fifth Amendment to the states, the Fourteenth Amendment contains its own due process clause. "[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV § 1. The case Plaintiffs cite in support of their argument merely notes that the analysis of due process is the same under the Fourteenth and Fifth Amendments; it does not confirm that the Fifth Amendment applies to the states. Rothe Devel. Corp. v. U.S. Dept. of Defense, 262 F.3d 1306, 1321 (Fed. Cir. 2001). Because no federal action is alleged in the Complaint, the Fifth Amendment claim must be dismissed.
D. 42 U.S.C. § 1983 Claims
In their Complaint, Plaintiffs allege a number of § 1983 violations, including: violation of Fearing's Fourth Amendment rights of freedom from unreasonable searches and seizures and unlawful arrest, violation of Fearing's equal protection rights, and the Fearing daughters' rights to substantive due process.
1. Fourth Amendment Claims
Defendants argue Fearing's Fourth Amendment Claims must be dismissed on the basis of qualified immunity. Although Defendants address their arguments to the false arrest and imprisonment claims, they apply with equal force to the claim that Fearing's right to freedom from unreasonable search and seizure was violated.
Under well established law, qualified immunity shields an officer from a suit for damages if a reasonable officer could have believed the arrest to be lawful under clearly established law and the information he or she possessed. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citation omitted). Moreover, officers need only establish they possessed arguable probable cause, as opposed to actual probable cause, to qualify for immunity. Gorra v. Hanson, 880 F.2d 95, 97 (8th Cir. 1989) (citations omitted). In this instance, Fearing admitted to possessing and using fireworks upon questioning by Defendants. Fearing Dep. at 39, 40. He also admitted the remaining fireworks were in his residence.Id. At this point, Defendants certainly had arguable probable cause to arrest Fearing and search his house, as Fearing had admitted to the use of fireworks, a violation of Minn. Stat. § 624.21. As a result, Defendants are subject to qualified immunity from Fearing's Fourth Amendment claims.
Even if Defendants are not immune from suit, Fearing's § 1983 false arrest claim must be dismissed because it is barred by the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994). InHeck, the Supreme Court held:
[A] § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.Id. at 486-87 (emphasis in original). Defendants argue that because Fearing pled guilty to the possession of fireworks charge, and the conviction has not been overturned, Fearing does not have a cognizable claim.
Fearing does not dispute the law on this issue. Strangely, the dispute is whether Fearing pled guilty to the fireworks possession charge. As evidence of Fearing's guilty plea, Defendants have submitted a computer printout of Ramsey County District Court File No. TO-02-005817, bearing the signature of a Deputy District Court Administrator. Riley Aff. Ex. 3. The printout names Patrick Fearing and the three counts alleged against him. Id. It also indicates Fearing pled guilty and was sentenced on the fireworks possession charge on March 20, 2002.Id. Furthermore, Fearing admitted in his own deposition that he pled guilty to the fireworks possession charge. Fearing Dep. at 56. Despite this seemingly overwhelming evidence that Fearing pled guilty to the fireworks possession charge, Plaintiffs argue Defendants have presented no evidence that the court printout is more than a case history. Plaintiffs cite the lack of a court transcript, and argue the printout may be describing a different fireworks possession charge to which Fearing pled guilty. Finally, Plaintiffs argue that because the conviction was vacated a year after the sentence, it has been invalidated under Heck.
Fearing's creative arguments do not overcome the uncontradicted evidence that he pled guilty to the fireworks possession charge. Although the state court printout is not a court transcript of the guilty plea, there is no genuine dispute about its authenticity or accuracy. The printout, combined with Fearing's own deposition testimony that he did, in fact, plead guilty to the fireworks possession charge, is sufficient evidence of Fearing's plea. Fearing's theory that the printout might somehow describe a plea to a different fireworks possession charge also is without any known evidentiary basis whatsoever. Finally, the vacation of the conviction by operation of statute one year after imposition does not invalidate the guilty plea as contemplated under Heck. Heck applies to instances in which a conviction was wrongly procured, not to the vacation of a conviction due to a defendant's fulfillment of probation requirements. 512 U.S. at 486-87. Fearing's § 1983 false arrest claim must be dismissed.
2. Fourteenth Amendment Claim
In the Complaint, Fearing briefly mentions an equal protection violation in the § 1983 claims. However, Fearing completely fails to allege any details, must less proffer evidence of, any equal protection violation. Fearing's response to Defendants' Motion on this count consists of an allegation that Fearing is a "class of one." Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). In Willbrook, the Supreme Court held: "Our cases have recognized successful equal protection claims brought by a `class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Id. at 564. In the instant case, however, Fearing makes no allegation that he was treated differently than others similarly situated, nor does he claim a lack of a rational basis for the difference in treatment. As a result, Fearing's Fourteenth Amendment claim must be dismissed.
3. Substantive Due Process Claim
In the Complaint, the Fearing daughters allege a violation of their substantive due process rights "because their [sic] having to watch their father being brutally beaten, as well as fearing for their own safety (that police might turn on them and begin to beat them as well)." Compl. ¶ 26(d). This allegation is simply insufficient to state a substantive due process violation. "The Fourteenth Amendment guarantees `[s]ubstantive due process [, which] prevents the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty.'" Sheets v. Butera, 389 F.3d 772, 778 (2004) (citations omitted). Even if the Court were to find Defendants did, in fact, assault Fearing as alleged in the Complaint, the violation to the Fearing daughters is not sufficient to shock the conscience. "[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level."Id. (citation omitted). The conduct at issue here, the alleged assault on Fearing, for which he refused medical treatment, was not intended to injure the Fearing daughters. Further, it falls short of the requisite level of egregiousness or outrageousness which violates the Fourteenth Amendment. Id. Consequently, the Fearing daughters' substantive due process claim is dismissed.
4. Monell Claim
In their response brief, Plaintiffs contend they have alleged aMonell claim against the City of St. Paul. An imaginative reading of the Complaint is required to discern such a claim. The only paragraphs of the Complaint that could even arguably raise aMonell claim allege the City of St. Paul "approved and/or ratified the actions alleged herein as consistent with City's [sic] policies. . . ." Compl. ¶¶ 16, 32, 44. Even if this paragraph is read to include a Monell claim, Plaintiffs' total failure to provide evidence of a custom or policy condoning Defendants' alleged actions doom its existence in this litigation.
A Monell claim is appropriate "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell v. Dept. of Social Servs., 436 U.S. 658, 694 (1978). Here, no evidence has been proffered to suggest that the City of St. Paul had any policy or custom of unlawfully assaulting criminals. Plaintiffs' response brief does make the bold assertion that many officers are trained to intentionally lie in their police reports in order to cover up their own misconduct. Pls' Mem. of Law Opposing Defs' Mot. for Partial Summ. J. at 7. Plaintiffs produce nothing, however, to evidence this allegation. Due to the total lack of evidence of a policy or custom, there is no viable Monell claim. Defendants have properly moved for summary judgment on the Monell claim. As a result, Plaintiffs' Motion to Strike Portion of Defendants' Reply Memorandum [Docket No. 125] is denied.
E. False Imprisonment Claim
In addition to his § 1983 false arrest claim, Fearing asserts a common law tort claim of false imprisonment. A false imprisonment claim, however, requires an unlawful arrest. Guite v. Wright, 976 F.Supp. 866, 871 (D. Minn. 1997) (citation omitted). As discussed supra, Defendants had arguable probable cause to arrest Fearing. For the same reasons, this claim must fail.
F. Minnesota Constitutional Claims
Defendants argue for judgment on Plaintiffs' claims arising under Sections 7 and 10 of the Minnesota Constitution on the theory that, unlike 42 U.S.C. § 1983, Minnesota has no statutory scheme providing for private actions based upon violations of the Minnesota Constitution. In fact, courts have repeatedly stated that Minnesota has not recognized private remedies for violations of the Minnesota Constitution. "Minnesota does not recognize a tort for deprivation of due process." Jones v. James, No. Civ. 02-4131, 2005 WL 459652, *8 (D. Minn. Feb. 24, 2005) (citing Bird v. State, Dept. of Public Safety, 375 N.W.2d 36, 40 (Minn.Ct.App. 1985)); see also Northstar Legal Found. v. Honeywell Project, 355 N.W.2d 186, 188 (Minn.Ct.App. 1984) (no action lies under Art. I, § 10). Plaintiffs provide no authority to contradict these clear holdings. Judgment will be entered for Defendants on these claims.
G. Defamation Claim
Although Fearing alleges a defamation claim, the Complaint does not specify any defamatory statement. Defendants respond by arguing the claim is one for "defamation per se," which they claim to be false accusations of committing a crime. Defamation per se, however, means that damages for a defamatory statement are assumed. Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25 (Minn. 1996). It does not relieve a plaintiff from pleading a defamatory statement, which Plaintiffs have failed to do in this instance. Id. Even if Plaintiffs properly pled a defamatory statement based on falsified police reports, Defendants are entitled to absolute immunity. Carradine v. State, 511 N.W.2d 733, 736-37 (Minn. 1994). Consequently, Fearing's defamation claim cannot survive.
H. Negligent Infliction of Emotional Distress Claim
The Fearing daughters plead a claim for negligent infliction of emotional distress. To establish such a claim, a plaintiff must demonstrate that she: (1) was within the zone of danger of physical impact; (2) reasonably feared for her own safety; and (3) suffered severe emotional distress with attendant physical manifestations. Stadler v. Cross, 295 N.W.2d 552, 553 (Minn. 1980).
The Fearing daughters have proffered evidence of the first two elements sufficient to establish a jury question as to whether they were within the zone of danger and reasonably feared for their safety. It appears undisputed that the Fearing daughters were on the porch of 439 St. Clair Avenue for at least a portion of the physical incident between Patrick Fearing and the Defendants. Tiffany Fearing, for example, alleged in an interrogatory that she was within "six feet" of the incident. Furthermore, Melady Fearing asserted she was scared throughout the incident. Whether the feelings experienced by the Fearing daughters were a result of fear for their safety or for their father's safety is a fact question.
Although the Fearing daughters present a prima facie case of negligent infliction of emotional distress on the first two elements of the claim, they fail to proffer evidence they suffered from severe emotional distress with attendant physical manifestations. Minnesota law sets a high bar for emotional distress: it must be "so severe that no reasonable man could be expected to endure it." Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 439 (Minn. 1983) (setting standard for emotional distress in an intentional infliction of emotion distress context); see also Longen v. Federal Express Corp., 113 F.Supp.2d 1367, 1374 (D. Minn. 2000) (applying Hubbard standard of emotional distress to negligent infliction of emotion distress claim). In Longen, complaints of anxiety, difficulty sleeping, lightheadedness, shortness of breath, and fear of appearing in public did not constitute sufficient evidence of severe emotional distress. Longen, 113 F.Supp.2d at 1374. Although Plaintiffs cite Quill v. Trans World Airlines, Inc. for the proposition that less severe physical symptoms have been found to constitute severe emotional distress, that holding was affected by the unusual factual circumstances — specifically, the plaintiff suffered physical symptoms as a passenger in a plane which plunged 39,000 feet in a tailspin. 361 N.W.2d 438, 443 (Minn.Ct.App. 1985). No such unusual circumstances exist in the instant action.
The Fearing daughters allege they suffered intense fear, anxiety, humiliation, terror, confusion, loss of sleep, post traumatic stress, and injury to their nervous and emotional systems. However, the Fearing daughters do not proffer any medical evidence of these alleged injuries. The lack of evidence, combined with the modest injuries suffered by the Fearing daughters, are not sufficient to meet the heavy burden imposed on plaintiffs to demonstrate severe emotional distress. Longen, 113 F.Supp. at 1374.
I. Retaliation Claim
In their response brief, Plaintiffs argue Defendants have not moved for summary judgment on their retaliation claim. The only mention of retaliation in Plaintiffs' Complaint, however, is set forth in the claim alleging violations of the Minnesota Constitution, wherein Plaintiffs allege: "St. Paul Police retaliated against Mr. Fearing and his family for asserting their constitutional right to litigate this case, by illegally seizing one of their automobiles." Compl. ¶ 28. Plaintiffs argue this claim related to "retaliation for Fearing stating that the officers were not allowed in his house without a warrant, whether expressed as a First Amendment retaliation claim or other constitutional tort, due [sic] as denial of due process or equal protection." Pls' Mem. of Law Opposing Defs' Mot. for Partial Summ. J. at 2. This confusing language, submitted in a memorandum of law, can not cure the defects in Plaintiffs' Complaint. Quite simply, Plaintiffs have failed to allege a retaliation claim.
J. Injunction
Finally, Plaintiffs have requested relief in the form of an injunction enjoining Defendants from further violating the rights of "Defendants [sic], including, but not limited to prohibiting retaliation for filing this lawsuit (in any form, but including illegal seizure of a family vehicle, and false arrest and instigation of false criminal charges)." Compl. ¶ 3. In short, Plaintiffs request the Court to grant an injunction prohibiting Defendants from engaging in illegal activity. It is not clear how an order could be fashioned, however, to prohibit what is already prohibited by law. Should Defendants engage in any of the above-named activities, Plaintiffs have remedies at law. An injunction would serve no purpose in that regard. As a result, the Court will grant judgment for Defendants on Plaintiffs' request for an injunction.
This case is an example of the troubling practice of asserting a large number of claims and not voluntarily abandoning the weak claims when no supporting evidence is developed during discovery. Judges, including this one, often attempt to discourage such "shotgun" pleading by invoking notions of judicial economy. Another reason why the multiple complaints and claims asserted here is an ill-conceived strategy is that the weak claims greatly distract the focus from the strength of the triable claims.
Plaintiffs were given an opportunity at oral argument to voluntarily dismiss any claims they considered to be weak.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendants' Motion for Partial Summary Judgment [Docket No. 118] is GRANTED; and
2. Plaintiffs' Motion to Strike Portion of Defendants' Reply Memorandum [Docket No. 125] is DENIED.