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Nelson v. Greiner

United States District Court, Eighth Circuit

October 18, 2013

Robert Forest Nelson, Jr.,
v.
Mark Greiner, Itasca County Sheriff's Office, Mark D. Blanchard (Police Officer #234), and City of Bovey Police Department, Defendants.

REPORT AND RECOMMENDATION

LEO I. BRISBOIS, Magistrate Judge.

This matter came before the undersigned United States Magistrate Judge upon the City Defendants' Motion to Dismiss, [Docket No. 8], and upon Plaintiff's Motion for a Temporary Restraining Order & Preliminary Injunction, [Docket No. 31]. The case has been referred to the undersigned Magistrate Judge for a report and recommendation, (see Order of Reference [Docket No. 19]), pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. The Court held a hearing on the motions on July 18, 2013.[1] For reasons outlined below, the Court recommends that Plaintiff's Motion for a Temporary Restraining Order & Preliminary Injunction, [Docket No. 31], be DENIED, and that the City Defendants' Motion to Dismiss, [Docket No. 8], be GRANTED.

I. BACKGROUND

This case arises from the arrest on May 22, 2012, of Robert Forest Nelson, Jr. ("Plaintiff") on charges of driving while intoxicated ("DWI") and blood alcohol breathalizer test refusal. In this 42 U.S.C. § 1983 action, Plaintiff alleges that his due process rights under both the United States and Minnesota constitutions were violated by Itasca County Sheriff's Deputy Mark Greiner ("Defendant Greiner") and the Itasca County Sheriff's Office ("Defendant Sheriff's Office"); and by City of Bovey Police Officer Mark D. Blanchard ("Defendant Blanchard") and the City of Bovey Police Department ("Defendant Police Department").

On April 9, 2013, the City Defendants (Defendant Blanchard and Defendant Police Department) made their Motion to Dismiss, [Docket No. 8], alleging that Plaintiff has failed to state claims upon which relief can be granted. (See City Defs.' Mem. Supp. Mot. Dismiss [Docket No. 10] (hereinafter "City Defs.' Mem.")). Plaintiff responded to the motion to dismiss on April 19, 2013. (Pl.'s Resp. Mot. Dismiss [Docket No. 23] (hereinafter "Pl.'s Resp."). The City Defendants filed their reply on July 3, 2013. (City Defs.' Reply Supp. Mot. Dismiss [Docket No. 42] (hereinafter "City Defs.' Reply").

Meanwhile, on May 6, 2013, Plaintiff made his Motion for Temporary Restraining Order and Preliminary Injunction, [Docket No. 31], seeking relief against the County Defendants with regard to booking practices at the Itasca County Jail. (See Pl.'s Mem. Supp. Mot. TRO and Prelim. Inj. [Docket No. 32] (hereinafter "Pl.'s Mem."). The County Defendants (Defendant Greiner and Defendant Sheriff's Office) responded to the motions on June 20, 2013. (County Defs.' Resp. Mot. TRP and Prelim. Inj. [Docket No. 39] (hereinafter "County Defs.' Resp.").

II. FACTS ALLEGED IN THE COMPLAINT[2]

On May 22, 2012, Plaintiff was working as an ironworker on a job site in Coleraine, Minnesota, and residing at a motel in Grand Rapids, Minnesota. (Compl. [Docket No. 1], at 7, ¶ 1). That evening, Plaintiff received a phone call from his employer, [3] who needed him to report immediately to work. (Id. at 7, ¶ 3). Plaintiff gargled using a prescription oral rinse, which he states "is super strong & smells like booze." (Id. at 7-8, ¶ 4). He then rushed out of his hotel room to drive to the job site, despite the fact that he was wearing only "pajama bottoms cut down into shorts." (Id. at 8, ¶ 5). While Plaintiff was en route, he received another call from his employer, urging him to hurry. (Id. at 8, ¶ 6). While driving northbound on Highway 169, Plaintiff hit a bump in the road, which caused his mobile phone to bounce off the seat and onto the floor near the passenger seat. (Id. at 8, ¶ 7). When the phone rang again, Plaintiff reached down to retrieve it, causing the vehicle he was driving to swerve. (Id. at 8-9, ¶ 8).

Plaintiff was then pulled over by Defendant Greiner (who had been involved in the arrest of Plaintiff on a DWI charge approximately two months earlier), who subsequently was assisted by Defendant Blanchard. (Id. at 9, ¶¶ 9-10). Defendant Greiner stated that Plaintiff smelled as if he had been drinking. (Id. at 10, ¶ 11). Plaintiff replied by explaining about his prescription oral rinse, but that the oral rinse was back at his hotel. (Id. at 10, ¶¶ 11-12). Defendant Greiner then conducted field sobriety tests, including Horizontal Gaze Nystagmus ("HGN") test, the "alphabet test, "[4] and the One-Legged Stand ("OLS") test, which Plaintiff failed. (Id. at 10-12, ¶¶ 13-16, 18). Defendant Greiner then administered a field sobriety test, at which time Plaintiff's bloodalcohol content registered 0.223 percent, almost three (3) times the legal limit of 0.08 percent. (Id. at 12, ¶ 19).

At that time, Plaintiff was arrested and transported to the Itasca County Jail (the "jail"), where Defendant Greiner read to Plaintiff, and filled out, a "Motor Vehicle Implied Consent Advisory" form. (Id. at 12, ¶¶ 19-20). A public defender was appointed for Plaintiff on May 23, 2012; however, he fired her on May 29, 2012. (Id. at 16, ¶¶ 26-27). On June 12, 2013, Defendant Blanchard wrote a "supplemental report" with regard to the criminal case against Plaintiff, which Plaintiff states was nearly identical to Defendant Greiner's initial report on the arrest. (Id. at 17, ¶ 28-29). Plaintiff remained jailed until July 16, 2012, when, as part of a plea deal, he ultimately pleaded guilty to careless driving. (Id. at 20-22, ¶¶ 38, 44). Plaintiff was fined $75.00 and sentenced to forty-seven (47) days in jail; with credit for time served, he was released that day. (Id. at 22, ¶ 44).

Between July 16, 2012, and July 24, 2012, Plaintiff sought four (4) times to recover his Ford Explorer from the Itasca County impound lot, but was told each time that it was being held as the subject of a vehicle seizure and forfeiture action. (Id. at 22, ¶ 45). On July 24, 2013, attorney John P. Dimich, whom Plaintiff identifies as the prosecutor, wrote a letter to the Itasca County Sheriff stating that the vehicle was not subject to seizure and "can be returned to the owner per your rules on storage fees and towing costs." (Id. at 22, ¶ 48 and Ex. G). Plaintiff states that "[t]hey continued to refuse to release [his vehicle], so I gave it away."

Plaintiff's Complaint alleges a total of twenty-five (25) causes of action. Several of those allege claims are only against one or both of the County Defendants, and, consequently, are not at issue for purposes of the present Motion.[5] The remainder of Plaintiff's claims which are at issue for purposes of the Motion to Dismiss now before the Court can be categorized as follows:

• Conspiracy: Plaintiff alleges that Defendant Greiner and Defendant Blanchard conspired, as defined by 42 U.S.C. § 1983, to frame him for the DWI charge, (12th Cause, Id. at 27, ¶ 60; and 14th Cause, Id. at 28, ¶ 62);
• Due Process: Plaintiff alleges that Defendant Blanchard's "supplemental report" is "so egregious and outrageous" that it violates his rights to procedural and substantive due process under the Fifth and Fourteenth Amendments, (13th Cause, Id. at ¶ 61);
• Monell: That the Defendant Police Department's "customs, " "policies, " and/or "procedures" motived Defendant Blanchard to engage in the conspiracy with Defendant Greiner, (15th Cause, Id. at 28-29, ¶ 63);
• State Constitutional Claims:
º That Defendant Blanchard's "actions" violated Plaintiff's right to due process under Article I, § 7 of the Minnesota Constitution, (22d Cause, Id. at 30-31, ¶ 70);
º That Defendant Police Department's "customs, policies and procedures" violated Plaintiff's right to due process, with regard both to liberty and to property, under Article I, § 7 of the Minnesota Constitution, (23d Cause, Id. at 31, ¶ 72);
• State Common Law Claim: That the conspiracy between Defendant Greiner and Defendant Blanchard resulted in an injury to ...

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