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Bounds v. Hanneman

United States District Court, D. Minnesota

March 31, 2014

MICHAEL BOUNDS, FOREST OLIVIER, WIA DAY, ADAM LAGUNA, DANIEL BELL, and ZACHARY LORENZ, Plaintiffs,
v.
MARK HANNEMAN, KARL WILLERS, BARB MATHWIG, BRYCE SCHUENKE, PETER ZAJAC, TROY LUKE, CHRIS MCCALL, MARC SUCHY, TROY KEMP, PAUL IRELAND, MICHAEL HADLAND, MICHELLE NESS, NICHOLAS JACOBSON, CHAD VANHORN, DANIEL LEWIS, STEVE SCHULZ, ANDREW MAHOWALD, JOSHUA LAWRENZ, MATT OLSON, ADAM CONNOR, DUSTIN ROEMELING, KENNETH WILLERS, JOSHUA MCCEWEN, CHRIS HENRICHS, LONNIE ROLOFF, DAN SHERBURNE, HUTCHINSON POLICE DEPARTMENT, FARMINGTON POLICE DEPARTMENT, WASHINGTON COUNTY SHERIFF'S OFFICE, ANOKA COUNTY SHERIFF'S OFFICE, RAMSEY COUNTY SHERIFF'S OFFICE, COON RAPIDS POLICE DEPARTMENT, FILLMORE COUNTY SHERIFF'S OFFICE, OLMSTED COUNTY SHERIFF'S OFFICE, THE LAKES AREA POLICE DEPARTMENT, KANABEC COUNTY SHERIFF'S OFFICE, CHISAGO COUNTY SHERIFF'S OFFICE, CHASKA POLICE DEPARTMENT, MAPLE GROVE POLICE DEPARTMENT, LYON COUNTY SHERIFF'S OFFICE, NOBLES COUNTY SHERIFF'S OFFICE, BIG LAKE POLICE DEPARTMENT, DAKOTA COUNTY SHERIFF'S OFFICE, JOHN DOES #1-100, XYZ ENTITIES #1-100, Defendants.

Alan Carl Milstein and Michael Jason Dube, SHERMAN SILVERSTEIN KOHL ROSE & PODOLSKY PA, 308 Harper Drive, Suite 200, Moorestown, N.J. 08057; and NATHAN M. HANSEN, 2440 North Charles Street, Suite 224, North St. Paul, MN 55109, for plaintiffs.

Jason M. Hiveley, Stephanie A. Angolkar, and Jon K. Iverson, IVERSON REUVERS CONDON, 9321 Ensign Avenue South, Bloomington, MN 55438, for defendants Mark Hanneman, Karl Willers, Barb Mathwig, Peter Zajac, Troy Luke, Troy Kemp, Paul Ireland, Michael Hadland, Chad Vanhorn, Daniel Lewis, Steve Schulz, Andrew Mahowald, Joshua Lawrenz, Matt Olson, Adam Connor, Dustin Roemeling, Kenneth Willers, Joshua McCewen, Chris Henrichs, Lonnie Roloff, Dan Sherburne, Hutchinson Police Department, Farmington Police Department, Washington County Sheriff's Office, Coon Rapids Police Department, Fillmore County Sheriff's Office, The Lakes Area Police Department, Kanabec County Sheriff's Office, Chisago County Sheriff's Office, Chaska Police Department, Maple Grove Police Department, Lyon County Sheriff's Office, Nobles County Sheriff's Office, and Big Lake Police Department.

James P. Spencer, Senior Assistant County Attorney, OLMSTED COUNTY ATTORNEY, 151 Fourth Street S.E., Rochester, MN 55904, for defendants Michelle Ness, Nicholas Jacobson, and Olmsted County Sheriff's Office.

Andrew T. Jackola, Assistant County Attorney, ANOKA COUNTY ATTORNEY'S OFFICE, 2100 Third Avenue, Suite 720, Anoka, MN 55303, for defendants Chris McCall and Anoka County Sheriff's Office.

Kimberly R. Parker and Robert B. Roche, Assistant County Attorneys, RAMSEY COUNTY ATTORNEY'S OFFICE, 121 Seventh Place East, Suite 4500, Saint Paul, MN 55101, for defendants Marc Suchy and Ramsey County Sheriff's Office.

Andrea G. White, Assistant County Attorney, DAKOTA COUNTY ATTORNEY'S OFFICE, 1560 Highway 55, Hastings, MN 55033, for defendants Bryce Schuenke and Dakota County Sheriff's Office.

MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION AS TO DEFENDANTS' MOTIONS TO DISMISS

JOHN R. TUNHEIM, District Judge.

This lawsuit challenges the actions of law enforcement officials and entities involved with a Drug Recognition Evaluation ("DRE") program through which law enforcement officers are trained to identify when citizens are under the influence of illicit drugs. Several individuals involved in the Occupy Minneapolis ("Occupy") protests bring this action against a long list of law enforcement officials - in both their individual and official capacities - alleging that the officers targeted them to serve as test subjects for the program and provided them with substantial amounts of marijuana in violation of their rights under the First and Fourteenth Amendments of the United States Constitution. Plaintiffs also allege that the municipal entities that employ the offending law enforcement officers knew of these practices and were deliberately indifferent in their failure to train officers to not violate Plaintiffs' constitutional rights. The Defendants filed multiple motions to dismiss for failure to state a claim and seeking qualified immunity. United States Magistrate Judge Franklin L. Noel issued a Report and Recommendation ("R&R") recommending that the Court permit claims by two Plaintiffs to proceed against five individual Defendants, but that the Court dismiss all other claims without prejudice.

The Court finds that the allegations by some Plaintiffs and with regard to some Defendants adequately state claims for the violation of their constitutional rights. First, the allegations that certain Defendants administered large amounts of an illicit drug to Plaintiffs after intimating threats of arrest without first informing Plaintiffs of the risks or checking their medical histories and with no therapeutic purpose state a claim for violation of Plaintiffs' clearly established substantive due process right to bodily integrity. Second, allegations that those Defendants chose to target Plaintiffs with this practice based on their participation in a protest state a claim for violation of their clearly established First Amendment rights. The Court therefore will deny Defendants' motions to dismiss with regard to claims by Plaintiffs Michael Bounds and Forest Olivier against Defendants Jacobson, Kenneth Willers, Karl Willers, and John Does 1 and 2 in their individual capacities and will dismiss without prejudice all claims against those Defendants in their official capacities, all claims against all other Defendants, and all claims by all other Plaintiffs.

BACKGROUND

I. DEFENDANTS

Plaintiffs bring this lawsuit against law enforcement officers and law enforcement entities whom Plaintiffs allege designed, developed, and/or ran the DRE program. (Compl. ¶¶ 9-11, Feb. 1, 2013, Docket No. 1.) The Defendants include twenty-six officers, sued in their individual and official capacities and their respective law enforcement entities, including the Ramsey County Sheriff's Office ("Ramsey County"), the Anoka County Sheriff's Office ("Anoka County"), The Dakota County Sheriff's Office ("Dakota County"), the Olmsted County Sheriff's Office ("Olmsted County"), and fourteen other city police departments and sheriffs' offices (the "City and County Defendants").[1]

II. PLAINTIFFS' ALLEGATIONS

Plaintiffs allege that the DRE program was "an unethical clinical trial whereby armed police officers provided vulnerable members of the public with substantial quantities of marijuana..., encouraged them to get high, observed them, and then abandoned them while they were still high." (Compl. ¶ 10.) Although the program "purportedly existed for the purpose of allowing law enforcement to understand what individuals look and act like while high, " Plaintiffs allege that "[i]n actuality, the parties that designed and ran the Program wished to target members of Occupy Minneapolis, members of the homeless population, and other vulnerable members of the population and see what quantity of drugs their bodies could tolerate." ( Id. ¶¶ 11-12.) Plaintiffs allege that the "targeted individuals were taken into police custody, provided with substantial quantities of drugs (principally marijuana) by the police, observed by the police while under the influence of the drugs, and then simply released onto the streets in a high and incoherent state." ( Id. ¶ 15.) Plaintiffs additionally allege that "the parties that designed and ran the Program authorized providing, and actually provided, cash or other consideration (such as food, cigarettes, and even illegal drugs to take home) to members of the public in exchange for participation, and sometimes intimated to the volunteers' that they would be arrested if they did not participate." ( Id. ¶ 17.) According to Plaintiffs, they were never "provided with an informed consent form, nor could any consent have ever been truly voluntary, " and they were never "asked to supply any medical history." ( Id. ¶¶ 18-19.)

Specifically, Plaintiff Michael Bounds alleges that he is a member of the Occupy movement and suffers from epilepsy and schizophrenia and that on or around April 26, 2012, he was approached by "two armed officers participating in the DRE Program" and that he "was asked whether he was high; he responded that he was not, " and "[o]ne of the officers in turn responded, [t]hat's alright, we'll get you high.'" ( Id. ¶¶ 27-29.) He alleges that the "[o]fficers then provided him with a substantial quantity of powerful marijuana" without conducting any evaluation of him afterwards and then "simply released [him] in downtown Minneapolis while high." ( Id. ¶¶ 30-31.) He also alleges that he was "given a quarter of a baggie filled with marijuana to take home in exchange' for information on the Occupy Minneapolis movement." ( Id. ¶ 32.)

Plaintiff Forest Olivier similarly alleges that he is an "Occupy member" and that on "three separate occasions on or around April 27, 2012" he was "approached by local law enforcement (including Nicholas Jacobson and either Karl Willers or Kenneth Willers) and offered substantial quantities of drugs." ( Id. ¶ 33.) He alleges that on the first occasion he "was given eight pipe bowls worth of marijuana, taken to a testing facility to be evaluated, evaluated there, and then returned to Peavey Plaza." ( Id. ¶ 34.) Similarly, he alleges that on the second occasion he "was given ten or more pipe bowls worth of marijuana, taken to the facility to be evaluated, and then returned to Peavey Plaza." ( Id. ¶ 35.)

Olivier alleges that on the third occasion, he "was approached by an Officer Willers and another officer" and that "Officer Willers asked Mr. Olivier whether he was in possession of any marijuana, to which Mr. Olivier responded no, " and that "[t]hereafter, Mr. Olivier was placed in the back of a squad car, and his personal belongings were placed in the trunk of the vehicle." ( Id. ¶¶ 36-38.) Olivier alleges that "Officer Willers then provided Mr. Olivier with a substantial quantity of marijuana, which Mr. Olivier smoked in the back of the squad car, " and that "[t]hereafter, Mr. Olivier was taken to the testing facility, at which point other law enforcement officials refused to let Mr. Olivier in because they identified him as being associated with Occupy Minneapolis, and were wary of footage of the [DRE] Program that Occupy Minneapolis had posted on YouTube, " so instead "Mr. Olivier was taken back downtown and released onto the streets while incredibly high." ( Id. ¶¶ 39-41.) Plaintiffs allege that another officer later reported that he "personally witnessed Mr. Olivier being provided drugs by an Officer Willers." ( Id. ¶ 45.)

With regard to the remaining Plaintiffs - Wia Day, Adam Laguna, Daniel Bell, and Zachary Lorenz - the Complaint states that "[t]he remaining Plaintiffs had similar experiences." ( Id. ¶ 42.) Plaintiffs allege that Occupy first brought this "unethical and illegal conduct" to light, and that after it did so, "certain officers participating in the program... began making the same allegations, which triggered an investigation by the Minnesota Bureau of Criminal Apprehension." ( Id. ¶¶ 43-44.) Plaintiffs allege that during the investigation, six police officers "refused to provide statements" but that multiple individuals reported that "Officer Kenneth Willers or Officer Karl Willers openly admitted to providing illegal drugs to individuals, and questioned what was wrong with that." ( Id. ¶¶ 46, 48.) Finally, Plaintiffs allege that "[a]fter these abuses came to light, the DRE Program was suspended." ( Id. ¶ 49.)

Based on Defendants' alleged conduct, Plaintiffs claim that they have "suffered physical and emotional damages" and bring claims under 42 U.S.C. §§ 1983 and 1988 for depriving Plaintiffs of their First Amendment speech rights and substantive due process right to bodily integrity under the Fourteenth Amendment. ( Id. at 9-11.) Plaintiffs allege that, in addition to the individual Defendants' violation of their rights, the individual officers were acting in accordance with a policy or custom of their employers, "including but not limited to their employers' negligent training or failure to train." ( Id. ¶ 55.) Plaintiffs seek compensatory, punitive, and any dignity damages and attorneys' fees. ( Id. ¶ 63.)[2]

III. PROCEEDINGS

Defendants brought several motions to dismiss the Complaint. Four county law enforcement offices filed motions to dismiss on behalf of their departments and any named officers: The Ramsey County Sheriff's Office and its officer Defendant Marc Suchy ("Ramsey County Defendants"), (Ramsey Cnty. Defs.' Mot. to Dismiss, Mar. 28, 2013, Docket No. 32); the Anoka County Sheriff's Office and its officer Chris McCall ("Anoka County Defendants"), (Anoka Cnty. Defs.' Mot. to Dismiss, Apr. 3, 2013, Docket No. 40); the Dakota County Sheriff's Department and its officer Bryce Schuenke ("Dakota County Defendants"), (Dakota Cnty. Defs' Mot. to Dismiss, Apr. 9, 2013, Docket No. 46); and the Olmsted County Sheriff's Office and its officers Michelle Ness and Nicholas Jacobson ("Olmsted County Defendants"), (Olmsted Cnty. Defs.' Mot. to Dismiss, May 3, 2013, Docket No. 63). The remaining City and County Defendants filed a joint motion to dismiss on behalf of them and their officers. (City and Cnty. Defs.' Mot. to Dismiss, Mar. 29, 2013, Docket No. 37.)

The motions to dismiss collectively argue that Plaintiffs fail to state claims for violation of the First and Fourteenth Amendment because voluntarily smoking marijuana does not amount to an adverse action for the purposes of the First Amendment nor can it be a violation of a person's bodily integrity. ( See, e.g., City and Cnty. Defs.' Mem. in Supp. of Mot. to Dismiss at 5-11, Mar. 29, 2013, Docket No. 39.) Specifically with regard to individual Defendants not named in the substance of Plaintiffs' allegations, they argue that claims against such Defendants fail because they state no personal involvement by those Defendants. ( See, e.g., Ramsey Cnty. Defs.' Mem. in Supp. of Mot. to Dismiss at 5-7, Mar. 28, 2013, Docket No. 34; Anoka Cnty. Defs.' Mem. in Supp. of Mot. to Dismiss at 6-9, Apr. 4, 2013, Docket No. 42.) The motions also argue that the individualcapacity suits against the individual officers must fail because any constitutional rights at issue, if they exist, were not clearly established so those officers are entitled to qualified immunity. ( See, e.g., Ramsey Cnty. Defs.' Mem. in Supp. of Mot. to Dismiss at 8-18; Anoka Cnty. Defs.' Mem. in Supp. of Mot. to Dismiss at 9-10.) They also argue that any official-capacity claims and claims against the law enforcement entities must fail because Plaintiffs have not adequately alleged a policy or custom that caused any deprivation of their constitutional rights and because sheriff's offices and city police departments are not entities subject to suit. ( See, e.g., Ramsey Cnty. Defs.' Mem. in Supp. of Mot. to Dismiss at 19-20; Dakota Cnty Defs.' Mem. in Supp. of Mot. to Dismiss at 14-15, Apr. 9, 2013, Docket No. 48.)

The Magistrate Judge issued an R&R recommending that, of the remaining claims and Defendants, the First and Fourteenth Amendment claims by only Plaintiffs Bounds and Olivier be permitted to proceed against only Defendants Jacobson, Karl Willers, Kenneth Willers, and John Does 1 and 2 in their individual and official capacities. (R&R at 19, Feb. 4, 2014, Docket No. 78.) The R&R recommended that all claims by the remaining Plaintiffs (Day, Laguna, Bell, and Lorenz) be dismissed without prejudice and that all claims against the remaining Defendants be dismissed without prejudice. ( Id. ) The R&R reasoned that, although Bounds' and Olivier's allegations against five Defendants were specific and detailed enough to state a claim for violation of their First and Fourteenth Amendment rights, the Complaint did not contain sufficient detail with regard to any other Plaintiffs or Defendants and should therefore be dismissed without prejudice. ( Id. at 6-8.)

However, the R&R concluded that Bounds and Olivier adequately alleged violation of clearly established constitutional rights under the First and Fourteenth Amendment such that Defendants Jacobson, Karl Willers, Kenneth Willers, and John Does 1 and 2 are not entitled to qualified immunity. ( Id. at 16-17.) With regard to Plaintiffs' failure-to-train allegations against the individual Defendants in their official capacities, the R&R concluded that Plaintiffs Bounds' and ...


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