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Henke v. City of Orono

United States District Court, D. Minnesota

October 29, 2014

Charles Henke, Plaintiff,
v.
City of Orono, Orono Police Department, Correy Farniok Chief of Police, Officer Larry Tomcheck, Jessica Loftus, Lyle Oman, Melanie Curtis, Christine Mattson and Soren Mattick, Defendants.

Charles Henke, Orono, MN, pro se.

Ryan M. Zipf, Esq. and League of Minnesota Cities, St. Paul, MN, Thomas M. Scott, Esq. and Campbell Knutson, PA, , Eagan, MN, counsel for defendants.

ORDER

DAVID S. DOTY, District Judge.

This matter is before the court upon the motions to dismiss by defendants.[1] Based on a review of the file, record, and proceedings herein, and for the following reasons, the court grants the motions.

BACKGROUND

This civil rights dispute arises out of the enforcement of various city ordinances against plaintiff Charles Henke. Henke owns property located at 3536 Lyric Avenue in the City of Orono (City). Compl. ¶ 5. On July 7, 2010, the City received complaints regarding "junk" on Henke's yard. Zipf Aff. Ex. 1, at 3. City officials visited Henke's property on July 12, 2010, and documented a number of code violations relating to the condition of the yard and exterior storage of property. Id . In addition to miscellaneous junk and debris, the City observed a number of inoperable and unregistered vehicles. Id . On July 16, 2010, the City mailed Henke a letter, notifying him of the code violations and giving him until July 29, 2010, to bring the property into compliance. Id . Henke failed to comply. See id.

Over the next year and a half, City officials made numerous requests to Henke to clean his property, detailing exactly what he needed to remove to meet code requirements. See id. at 3-5. During this time, City officials made frequent visits to inspect Henke's progress. Id . Although Henke removed some vehicles and debris, he failed to bring the property into compliance. Id. at 5. On January 20, 2012, the City Attorney filed a criminal complaint, alleging violations of Orono City Code §§ 58-1, 58-3, and 78-1577(6)(b)(2). Id. at 1-2.

On July 22, 2013, Henke pleaded guilty to maintaining junk vehicles, in violation of Orono City Code § 58-3. See id. Ex. 5, at 1. As a condition of his probation, Henke was required to clean his yard by November 1, 2013, and allow the City to access his property for inspections. Id . Henke refused access to an inspector on November 1, 2013. Id . Ex. 6. As a result, his probation was extended until May 22, 2015. See id. Ex. 5, at 2.

On May 28, 2014, Henke filed this pro se complaint, alleging claims for (1) various constitutional violations under 42 U.S.C. §§ 1983, 1986, and 1988; and (2) violations of the Ex Post Facto Clause. Defendants move to dismiss.[2]

ANALYSIS

I. Standard of Review

To survive a motion to dismiss for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Braden v. Wal-Mart Stores, Inc. , 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009)). "A claim has facial plausibility when the plaintiff [has pleaded] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556 (2007)). Although a complaint need not contain detailed factual allegations, it must raise a right to relief above the speculative level. Twombly , 550 U.S. at 555. "[L]abels and conclusions or a formulaic recitation of the elements of a cause of action" are not sufficient to state a claim. Iqbal , 556 U.S. at 678 (citation and internal quotation marks omitted).

The court does not consider matters outside of the pleadings under Rule 12(b)(6). Fed.R.Civ.P. 12(d). The court, however, may consider matters of public record and materials that do not contradict the complaint, as well as materials that are "necessarily embraced by the pleadings." Porous Media Corp. v. Pall Corp. , 186 F.3d 1077, 1079 (8th Cir. 1999) (citations and internal quotation marks omitted). Here, the court relies on the criminal complaint, the City's history report for Henke's property, the Orono City Code, the register of actions, and the application for obtaining ...


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