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Kalberer v. Palmer

United States District Court, D. Minnesota

September 11, 2014



PATRICK J. SCHILTZ, District Judge.

Plaintiff George Kalberer filed a lawsuit in state conciliation court against E-Trade, a financial-services company, alleging that E-Trade stole $1, 205 out of his E-Trade account. On June 22, 2011, Kalberer was on his way to a state-court hearing when he stopped by the office of Minneapolis police chief Tim Dolan to drop off two documents. Kalberer alleges that, while he was in Dolan's office, he was assaulted, seized, and transported to Hennepin County Medical Center ("HCMC") by various police officers (sued as John Does). He was held at HCMC until June 30, 2011 for a medical evaluation pursuant to the Minnesota Commitment and Treatment Act ("MCTA"), Minn. Stat. §§ 253B.01 et seq. Based on these events, Kalberer brings claims under 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and state law against HCMC, Dolan, police officer William Palmer, [1] E-Trade employee Steven Hoeg, and various John Does (some of whom may or may not be federal officials, hence the Bivens claims).

This matter is before the Court on Kalberer's objection to the July 31, 2014 Report and Recommendation ("R&R") of Magistrate Judge Franklin L. Noel. Judge Noel recommends granting in part and denying in part defendants' motions to dismiss. Kalberer objects to the extent that Judge Noel recommends dismissal of any of his claims. The Court has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Based on that review, the Court sustains Kalberer's objection in part. Specifically, the Court sustains Kalberer's objection insofar as it pertains to Kalberer's false-imprisonment claim against HCMC. The Court finds the remainder of Kalberer's objection to the R&R to be without merit.[2]

A. Monell Liability

To begin, the Court agrees with Judge Noel that Kalberer has failed to adequately plead a viable § 1983 claim against either HCMC or (with one exception) the HCMC John Does.[3] An agency such as HCMC cannot be held vicariously liable for constitutional violations. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Instead, the plaintiff must prove that a violation of his constitutional rights resulted from (1) an official municipal policy; (2) an unofficial municipal custom; or (3) a deliberately indifferent failure by the municipality to train or supervise its employees. Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013).

Kalberer argues that HCMC acted pursuant to the MCTA, which, he contends, is unconstitutional. Of course, the MCTA is a state law, not a county policy. Nevertheless, there is at least a theoretical possibility that Kalberer could state a viable § 1983 claim against HCMC on the basis that HCMC had a policy of enforcing an unconstitutional state law. The Eighth Circuit recently declined to decide whether a municipality could ever be liable under Monell for enforcing an allegedly unconstitutional state law, noting that the issue "has been the subject of extensive debate in the circuits." Slaven v. Engstrom, 710 F.3d 772, 781 n.4 (8th Cir. 2013). HCMC did not address this argument in its response to Kalberer's objection, and given the complexity of the issue, the Court will not address it in the absence of briefing from the parties.

Setting that aside, however, Kalberer's amended complaint fails to give adequate notice of any way in which the MCTA is unconstitutional. Although Kalberer alleges that the MCTA is unconstitutional, Am. Compl. ¶¶ 49, 53, he does not explain why that is so. As best as the Court can tell, Kalberer seems to be challenging the very existence of civil-commitment laws. As a general matter, however, there is no question that civil-commitment laws are constitutional. See Addington v. Texas, 441 U.S. 418, 426 (1979) ("The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill."). Moreover, "state statutes are presumed constitutional, and the plaintiff has the burden to show otherwise." Branson v. O.F. Mossberg & Sons, Inc., 221 F.3d 1064, 1065 n.4 (8th Cir. 2000). Without an explanation of the basis of Kalberer's challenge, the Court is at a loss to know how HCMC can be expected to defend - or how the Court can be expected to analyze - the constitutionality of the MCTA.

In addition, by failing to explain why he believes that the MCTA is unconstitutional, Kalberer has failed to allege a plausible Monell claim against HCMC. Even if Kalberer's constitutional challenge to the MCTA is successful - and even if HCMC can be held liable for acting pursuant to an unconstitutional state law - Kalberer will not necessarily be entitled to recover against HCMC. For example, a successful as-applied challenge to the MCTA may not be sufficient to establish liability on the part of HCMC unless Kalberer establishes that HCMC has a policy or custom of applying the MCTA in the manner that he claims is unconstitutional. In short, Kalberer's failure to specify the basis for his constitutional challenge to the MCTA means that his Monell claims against HCMC are not adequately pleaded.

For these reasons, the Court will dismiss Kalberer's § 1983 claims against HCMC and the HCMC John Does without prejudice. If Kalberer wishes to revive these claims, he must move to amend his complaint in accordance with D. Minn. L.R. 7.1 and 15.1 and, to the extent he challenges the constitutionality of the MCTA, he must follow the procedures of Fed.R.Civ.P. 5.1(a). The Court suggests that, before moving to amend his complaint, Kalberer ought to research what qualifies as a municipal "policy" or "custom" for purposes of Monell. Kalberer seems to believe that if the employee of a government agency violates someone's constitutional rights, that agency necessarily has a "policy" or "custom" of violating constitutional rights. That is not the law.

B. Remaining Claims against HCMC and HCMC John Does

That leaves the following claims against HCMC and the HCMC John Does: (1) § 1983 and state-law claims against a John Doe defendant named Richard, whom Kalberer sued in his individual capacity, see Am. Compl. ¶ 12; and (2) a state-law claim of false imprisonment against HCMC. Kalberer's failure to plead a proper basis for Monell liability does not affect the viability of these claims. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (in contrast to official-capacity suits, "[p]ersonal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law"); Wu v. City of New York, 934 F.Supp. 581, 591-92 (S.D.N.Y. 1996) ("Although respondeat superior claims are barred against municipalities for § 1983 violations under Monell, such claims are available for violations of state law.").

1. Richard

Kalberer alleges that Richard was "an actor, and/or actor/patient in the HCMC charade purporting to [be] a real patient at HCMC, who on the morning of 6/23/2011 attempted to instigate an assault upon Kalberer." Am. Compl. ¶ 12. Although Monell is no barrier to Kalberer's claims against Richard, the Court nevertheless concludes that they should be dismissed under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

First, to the extent that Kalberer may be alleging an assault claim against Richard, his claim fails as a matter of law. "An assault is an unlawful threat to do bodily harm to another with present ability to carry the threat into effect. Mere words or threats alone do not constitute assault." Dahlin v. Fraser, 288 N.W. 851, 852 (Minn. 1939). Kalberer alleges only that Richard "verbally accosted" him, stated "No one Cares, No one Cares, " and said ...

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