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Passenheim v. Tolbert

United States District Court, D. Minnesota

November 21, 2016

ANDRE RYAN PASSENHEIM, Plaintiff,
v.
OFFICER ANDREW TOLBERT, individually, and in his official capacity; OFFICER JASON BUCK, individually, and in his official capacity; SGT. MAX FARRAND, individually, and in his official capacity; CRAIG ENEVOLDSEN, Chief of Police, individually, and in his official capacity; and CITY OF BROOKLYN PARK, Defendants.

          Kenneth U. Udoibok, for plaintiff.

          Nathan C. Midolo and Jason M. Hiveley, IVERSON REUVERS CONDON, for defendants.

          ORDER

          PATRICK J. SCHILTZ UNITED STATES DISTRICT JUDGE

         In this action, plaintiff Andre Passenheim asserts constitutional claims under 42 U.S.C. § 1983 and tort claims under Minnesota law in connection with a traffic stop and search that occurred during the early morning hours of November 4, 2014. Defendants include Officer Andrew Tolbert (who stopped and searched Passenheim), Officer Jason Buck (who arrived on the scene and also searched Passenheim), Sergeant Max Farrand (who supervised the scene), and the City of Brooklyn Park (which employed Tolbert, Buck, and Farrand).[1]

         This matter is before the Court on defendants' motion for summary judgment. The Court will assume familiarity with the facts. For the reasons given on the record at the hearing on defendants' motion and explained below, the Court denies in large part and grants in small part defendants' summary-judgment motion.

         I. STANDARD OF REVIEW

         Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute over a fact is "material" only if its resolution might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

         II. ANALYSIS

         A. Federal Claims

         Qualified immunity protects a government official from personal liability "in a § 1983 action unless the official's conduct violate[d] a clearly established constitutional or statutory right." Winslow v. Smith, 696 F.3d 716, 730 (8th Cir. 2012) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009)). "The party asserting immunity always has the burden to establish the relevant predicate facts, and at the summary judgment stage, the nonmoving party is given the benefit of all reasonable inferences." Id. (quoting White v. McKinley, 519 F.3d 806, 813 (8th Cir. 2008)).

         The constitutional rights that are at issue in this case-essentially, the right not to be stopped by police without reasonable suspicion and the right not to be subject to excessive force-are clearly established. Defendants nevertheless argue that there is no clearly established constitutional right to be free from police officers "conducting an over-the-clothes frisk and using a bladed hand technique to feel for possible foreign objects." ECF No. 17 at 28. But this framing of the alleged constitutional violation is premised on defendants' version of the facts. Under Passenheim's version of the facts-which the Court must accept as true-defendants' conduct went far beyond "conducting an over-the-clothes frisk and using a bladed hand technique to feel for possible foreign objects." Passenheim testified that, after police apparently suspected that he was hiding drugs in or near his anus, he was subject to multiple searches that involved "[p]ronging and grabbing and tugging" at his anus with such force that it caused him physical injury. ECF No. 22-4 [Passenheim Dep.] at 108:4-10. If the officers acted with the level of force claimed by Passenheim, they may have violated his clearly established right to be free from excessive force.

         Given that the constitutional rights asserted by Passenheim were clearly established, the crucial question is whether Passenheim's rights were in fact violated by defendants. In arguing that Passenheim's rights were not violated, defendants for the most part rely on their version of contested facts. Defendants barely acknowledge that, for purposes of ruling on their summary-judgment motion, the Court must assume that Passenheim's version of contested facts is true. See Anderson, 477 U.S. at 255. With the correct standard in mind, the Court will briefly review the claims against each defendant.

         1. Tolbert

         There are multiple factual disputes that make it impossible for the Court to find, as a matter of law, that Tolbert did not violate a clearly ...


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