United States District Court, D. Minnesota
Kenneth U. Udoibok, for plaintiff.
C. Midolo and Jason M. Hiveley, IVERSON REUVERS CONDON, for
PATRICK J. SCHILTZ UNITED STATES DISTRICT JUDGE
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).
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'
STANDARD OF REVIEW
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.
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
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
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.
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 ...