Khounedaleth v. City of Minneapolis

581 F.Supp.3d 1128

Ericka KHOUNEDALETH, Plaintiff,

v.CITY OF MINNEAPOLIS et al., Defendants.

Case No. 20-cv-2325 (WMW/BRT)

United States District Court, D. Minnesota.

Signed January 24, 2022

Nicholas Ratkowski, Contreras & Metelska, P.A., Saint Paul, MN, Anu Jaswal, Nilan Johnson Lewis PA, Minneapolis, MN, for Plaintiff.

Heather Passe Robertson, Kristin R. Sarff, Sharda R. Enslin, Minneapolis City Attorney's Office, Civil Division, Minneapolis, MN, for Defendant City of Minneapolis.

ORDER

Wilhelmina M. Wright, United States District Judge

Before the Court is Defendant City of Minneapolis's (Minneapolis) motion to dismiss Plaintiff Erica Khounedaleth's claims against Minneapolis. (Dkt. 20.) For the reasons addressed below, the Court grants Minneapolis's motion to dismiss as to Counts 4 and 6 and denies the motion as to Counts 5 and 7.

BACKGROUND

Khounedaleth, a Minnesota resident, attended a protest in downtown Minneapolis on May 31, 2020, in the aftermath of the murder of George Floyd. Minneapolis, a municipal corporation, is responsible for the Minneapolis Police Department (MPD). Defendants Officer Doe #1 and Officer Doe #2 are two as-yet unidentified MPD officers.

On May 31, 2020, Minneapolis Mayor Jacob Frey issued Emergency Regulation 2020-2-2, which implemented a city-wide curfew between 8:00 p.m. on May 31, 2020, and 6:00 a.m. on June 1, 2020. Khounedaleth alleges that she and two friends arrived at the protest at 6:30 p.m. and remained in Khounedaleth's vehicle during their time at the protest. Beginning at 8:00 p.m., when the curfew commenced, MPD officers blocked off the street on which Khounedaleth was driving. Khounedaleth maintains that, at 8:10 p.m., she attempted to leave the area and return home.

Khounedaleth followed several other vehicles that were attempting to exit through a parking lot. Khounedaleth alleges that MPD officers allowed two other vehicles to leave before stopping Khounedaleth's vehicle. Two officers, whose identities Khounedaleth does not know and whom she refers to as Officer John Doe #1 and Officer John Doe #2, approached Khounedaleth's vehicle with their weapons raised, opened Khounedaleth's door, and pulled Khounedaleth by her right shoulder from her vehicle. Khounedaleth alleges that she was "thrown to the ground" and that one of the officers deployed tear gas, which caused her to experience "burning pain" and difficulty breathing. Khounedaleth was then arrested, taken to the Hennepin County Jail and issued a citation for unlawful assembly and curfew violation. The charges against Khounedaleth were dismissed on July 23, 2020.

Khounedaleth commenced this action on November 13, 2020, and amended her complaint on February 8, 2021. Khounedaleth advances ten claims to relief, only four of which are relevant to Minneapolis's pending motion to dismiss. Count 4 of the amended complaint alleges that Defendants violated Khounedaleth's right to equal protection under the Fourteenth Amendment to the United States Constitution. Count 5 alleges that Minneapolis is liable for MPD officers’ policy and custom of using excessive force against civilians in violation of the Fourth Amendment. Count 6 alleges that Defendants violated Khounedaleth's rights to freedom of movement and to be present in public under the Fourteenth Amendment. Count 7 alleges that Minneapolis violated Khounedaleth's First Amendment rights to free speech and assembly. Minneapolis moves to dismiss Counts 4, 5, 6, and 7.

ANALYSIS

A complaint must allege sufficient facts that, when accepted as true, state a facially plausible claim to relief. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim must be dismissed if the complaint fails to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6). When determining whether the complaint states such a claim, a district court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Blankenship v. USA Truck, Inc. , 601 F.3d 852, 853 (8th Cir. 2010). The factual allegations need not be detailed, but they must be sufficient to "raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A plaintiff, however, must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. at 555, 127 S.Ct. 1955. Legal conclusions that are couched as factual allegations may be disregarded by the district court. See Iqbal , 556 U.S. at 678–79, 129 S.Ct. 1937.

I. Municipal Liability (Counts 4 and 5)

Minneapolis seeks dismissal of Counts 4 and 5 of the amended complaint, arguing that Khounedaleth fails to sufficiently allege municipal liability pursuant to 42 U.S.C. § 1983.

Section 1983 provides a civil cause of action against:

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws ....

42 U.S.C. § 1983. A Section 1983 claim against a municipality cannot be based on vicarious liability, however. See Bd. of Cnty. Comm'rs v. Brown , 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). A municipality may be subject to Section 1983 liability for the actions of its employees only if the inadequate training of its employees, a municipal policy or an unofficial municipal custom causes a constitutional injury. See City of Canton v. Harris , 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (training); Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (policy or custom); see also Bd. of Cnty. Comm'rs , 520 U.S. at 403–04, 117 S.Ct. 1382. Here, the amended complaint alleges municipal liability based on a policy or unofficial custom. The Court addresses each allegation in turn.

A. Municipal Policies

"[A] policy is an official policy, a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters." Mettler v. Whitledge , 165 F.3d 1197, 1204 (8th Cir. 1999) (internal quotation marks omitted). "[W]hether an official had final policymaking authority is a question of state law." Pembaur v. City of Cincinnati , 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (observing that "[a]uthority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority"). When determining whether an official has policymaking authority, courts consult applicable municipal charters, codes or ordinances. See Davison v. City of Minneapolis , 490 F.3d 648, 661 (8th Cir. 2007). To survive a motion to dismiss, a plaintiff need not plead the specifics of a policy, but must "allege facts [that] would support the existence of an unconstitutional policy or custom." Doe ex rel. Doe v. Sch. Dist. of City of Norfolk , 340 F.3d 605, 614 (8th Cir. 2003).

Khounedaleth alleges that Minneapolis promulgated an unconstitutional policy allowing "MPD supervisors to indiscriminately authorize MPD officers to deploy chemical irritants." And she alleges that the MPD Code of Conduct "provides no guidelines or limitations as to when a supervisor may authorize the use of such chemical agents by MPD officers." Minneapolis maintains that the MPD Code of Conduct is constitutional on its face because it does not mandate unconstitutional conduct.¹

Accepting Khounedaleth's allegations about the MPD Code of Conduct as true, the issue is whether a policy that allows MPD supervisors discretion to authorize the use of chemical agents is constitutional. A municipality may not be held liable under Section 1983 merely because the municipality failed to implement a policy that would have prevented an unconstitutional act by an employee otherwise left to the employee's discretion. Atkinson v. City of Mountain View , 709 F.3d 1201, 1216 (8th Cir. 2013) (internal quotation marks omitted). The United States Court of Appeals for the Eighth Circuit has held that a county's "decision to rely on its employees’ judgment is certainly not unconstitutional in and of itself, especially in an area where so many diverse fact situations will inevitably present themselves, and in which the exercise of particularized judgment is so important." Dick v. Watonwan County , 738 F.2d 939, 942 (8th Cir. 1984). Here, Khounedaleth alleges, at most, that MPD supervisors had discretion under the MPD Code of Conduct to authorize the use of chemical agents. Without more, Khounedaleth has not sufficiently alleged that such a policy is unconstitutional.

Khounedaleth has not sufficiently alleged the existence of an unconstitutional policy that would render Minneapolis liable under Section 1983.

B. Unofficial Custom

To state a claim for Section 1983 liability based on a municipal custom, a plaintiff must plead facts that establish (1) "the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct" committed by the municipality's employees; (2) "deliberate indifference to or tacit authorization" of the misconduct by policymaking officials after those officials have received notice of the misconduct; and (3) that the plaintiff was injured by actions taken pursuant to the custom, such that "the custom was a moving force behind the constitutional violation." Corwin v. City of Independence , 829 F.3d 695, 700 (8th Cir. 2016) (internal quotation marks omitted). Even if a plaintiff is not privy to the facts necessary to describe the alleged custom with specificity, the complaint must allege facts that would support the existence of an unconstitutional custom. Crumpley-Patterson v. Trinity Lutheran Hosp. , 388 F.3d 588, 591 (8th Cir. 2004). Khounedaleth alleges that...