Marks v. Doe

528 F.Supp.3d 1008

Ethan Daniel MARKS, Plaintiff,

v.John DOE 1, acting in his individual capacity as a Minneapolis Police Officer; John Does 2-6, acting in their individual capacities as Minneapolis Police Officers; John Does 7 and 8, acting in their individual capacities as supervisory Minneapolis Police Officers; Medaria Arradondo, acting in his individual and official capacities as the Minneapolis Chief of Police; and the City of Minneapolis, Defendants.

Civil No. 20-1913 ADM/ECW

United States District Court, D. Minnesota.

Signed March 23, 2021

Robert Bennett, Esq., Robins Kaplan LLP, Minneapolis, MN, on behalf of Plaintiff.

Kristin R. Sarff, Esq., Sharda Enslin, Esq., and Heather P. Robertson, Esq., Minneapolis City Attorney's Office, Minneapolis, MN, on behalf of Defendants City of Minneapolis and Minneapolis Chief of Police Medaria Arradondo.

MEMORANDUM OPINION AND ORDER

ANN D. MONTGOMERY, U.S. DISTRICT COURT JUDGE

I. INTRODUCTION

This matter is before the undersigned United States District Judge for a ruling on Defendants City of Minneapolis (the "City") and Minneapolis Chief of Police Medaria Arradondo's ("Chief Arradondo") (collectively, the "City Defendants") Motion to Dismiss [Docket No. 12]. For the reasons stated below, the Motion is granted in part and denied in part.

II. BACKGROUND

Marks, a 19-year-old college student, alleges his constitutional rights were violated when a Minneapolis police officer fired a tear-gas canister into his face from close range. Am. Compl. [Docket No. 6] ¶¶ 1, 6, 58, 74. The tear-gas canister struck Marks in his right eye, causing severe injury, and will likely result in permanent vision loss in the eye. Id. ¶¶ 161–62, 164–68.

The incident occurred on May 28, 2020, three days after George Floyd died while being restrained by a Minneapolis police officer. Id. ¶¶ 1, 13. Floyd's death was captured on video and sparked protests throughout the city, state, and nation. Id. ¶¶ 15–17. The protests caused severe property destruction in Minneapolis. Id. ¶ 17. Most of the destruction occurred during nighttime hours. Id. During the day, the majority of activity was peaceful and aimed at effecting change and restoring damaged communities. Id. ¶ 18. Marks alleges that the Minneapolis Police Department ("MPD") responded to the protests by using tear-gas, 40 mm blunt impact projectiles, and other "less lethal" munitions on the crowds, even when the protests were peaceful. Id. ¶ 19. Between May 26 and May 28, 2020, three Minneapolis council members publicly denounced the MPD's "disproportionate and escalating force" being used on the protesters. Id. ¶¶ 20-22.

On the afternoon of May 28, 2020, a volunteer community clean-up event was held for Minneapolis’ Longfellow neighborhood, which had incurred the most destruction during the protests. Id. ¶¶ 23, 27. Marks, a long-term Twin Cities resident, attended the event with his mother, a registered nurse. Id. ¶¶ 24, 27. The crowd did not include looters or rioters, and no curfew was in effect on that day. Id. ¶¶ 28, 35.

Portions of the clean-up event were captured on video by an Australian news crew which had been sent to Minnesota to cover George Floyd's death. Id. ¶ 38; Sarff Decl. [Docket No. 15] Ex. A (Video). The video shows a crowd of several hundred people gathered in the area. At approximately 5:30 p.m., while Marks and his mother were at the clean-up event, several police vehicles and officers urgently arrived on the scene. Am. Compl. ¶¶ 36, 39; Video at 2:04–2:26, 3:53–3:59. The reporter on the scene stated that a man had been stabbed and "really needs to be in a hospital." Video at 0:19–0:22, 1:09–1:11. The police entered the crowd and formed a ring around the injured person. Id. at 4:25–4:36. The video shows officers firing tear gas and yelling, "Get back! Get back!" Id. at 3:13–3:13, 4:03–4:18. The injured person was eventually lifted into a police vehicle and transported from the scene. Id. at 6:22–6:30; 7:08–7:15.

Minutes after the injured person was evacuated, another individual went to the ground and required medical attention. Am. Compl. ¶ 43. Several MPD officers and others formed a group around the downed individual. Id. ¶ 46. Marks’ mother wanted to provide aid and peacefully approached the group to inform them she was a nurse. Id. ¶¶ 45-46. Marks followed behind to assist his mother. Id. ¶¶ 47–48. As Marks approached, Defendant Doe 2 pushed his mother away from the injured individual. Id. ¶ 54. Marks then walked up to Defendant Doe 2, who used his baton defensively to push Marks backwards, away from the officers and the injured person. Id. ¶ 55. Marks was unarmed and posed no observable threat to the John Doe officers or others. Id. ¶¶ 50, 56. One second later, while Marks and others were within close range, Defendant Doe 1 shot a tear-gas canister into Marks’ face without warning. Id. ¶¶ 58, 60, 74; Video at 9:01–9:06. The tear gas canister struck Marks in the right eye, and the explosion knocked him out of his shoes. Id. ¶ 75.

A stranger drove Marks and his mother to the hospital, where he underwent immediate surgery for a right eye globe rupture. Id. ¶¶ 87, 159. Marks also suffered complete orbital floor fractures, permanent damage to his retina and cornea, and a complex concussion. Id. ¶¶ 161–63. Marks’ injuries will require future surgeries, and a doctor has informed him he will likely have permanent vision loss in his right eye. Id. ¶¶ 164-65. Due to his injuries and treatment, Marks has been forced to put his college education on hold. Id. ¶ 177.

Marks alleges that Defendant Doe 1's aiming and firing the launcher at Marks’ face while he was in close range violated MPD training and policies, which mandate that the launcher never be aimed toward the neck or head, and must be aimed lower than center mass when the shooter is within 5 meters of the target. Am. Compl. ¶¶ 88–89, 91–94. Marks also alleges the MPD officers at the scene did not provide him with medical assistance and failed to document the use of force, in violation of MPD policies. Id. ¶¶ 96, 105–15.

Marks alleges Defendant Doe 1's misconduct was caused by MPD customs of tolerating excessive force and encouraging officers not to truthfully report unlawful uses of force. Id. ¶¶ 117–27, 217. Marks asserts that the MPD has permitted officers "to get away with policy and constitutional violations without fear of repercussion for decades," and that the failure to report unlawful uses of force by MPD officers against protesters occurred repeatedly in the days following George Floyd's death. Id. ¶¶ 100–101. Marks alleges that this pattern of conduct was repeated on May 31, 2020, when an MPD officer fired a "less lethal" projectile without warning into the eye of Soren Stevenson ("Stevenson"), who was attending a peaceful daytime protest, then failed to render him any aid or properly document the incident. Id. ¶ 102.

On September 8, 2020, Marks filed this action pursuant to 42 U.S.C. § 1983. The Amended Complaint asserts a claim against Chief Arradondo in his individual capacity for supervisory liability, and a claim against the City and Chief Arradondo in his official capacity for municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Am. Compl. ¶¶ 207–20 (Counts IV and V). The City Defendants move to dismiss the claims against them for failure to state a plausible claim.

III. DISCUSSION

A. Standard of Review

Rule 12 of the Federal Rules of Civil Procedure provides that a party may move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss, the pleadings are construed in the light most favorable to the nonmoving party, and the facts alleged in the complaint must be taken as true. Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994) ; Ossman v. Diana Corp., 825 F. Supp. 870, 879-80 (D. Minn. 1993). Any ambiguities concerning the sufficiency of the claims must be resolved in favor of the nonmoving party. Ossman, 825 F. Supp. at 880.

Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings "must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." A pleading must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Determining whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not ‘shown’–‘that the pleader is entitled to relief.’ " Id. (quoting Fed. R. Civ. P. 8(a)(2) ).

Ordinarily, if a district court relies on matters outside the pleadings in considering a motion to dismiss, the motion to dismiss is converted to one for summary judgment. Fed. R. Civ. P. 12(d). However, the Court may consider "materials embraced by the pleadings, exhibits attached to the pleadings, and matters of public record." Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011). Here, the Court has considered the news crew's video footage because the footage is referenced in the Amended Complaint and its authenticity is not disputed. See Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012) (stating documents alleged in complaint are necessarily embraced by complaint and thus not outside pleadings).

B. Monell Claims Against City Defendants (Count V)

In his Monell claims against the City Defendants, Marks alleges that the City has a...