United States District Court, D. Minnesota
RICHARD H. KYLE United States District Judge
the evening on July 25, 2014, Defendants John Schliesing and
Christopher Reiter, two Minneapolis police officers, went to
Plaintiff Alfred Flowers's home to execute an arrest
warrant for his daughter, S.F. There, Flowers claims the
officers physically assaulted him without provocation. He
later commenced this action, alleging violations of federal
and state law. Presently before the Court is Defendants'
Motion for Partial Summary Judgment. For the reasons that
follow, the Motion will be granted.
facts material to this Motion are undisputed. In May 2014,
S.F. was charged with receiving stolen property in Anoka
County, Minnesota. In lieu of pretrial detention, she was
placed on Electronic Home Monitoring (“EHM”) on a
“zero tolerance basis.” (Lathrop Dec. Ex. 2.) Her
EHM contract required her to “remain inside [her] house
or apartment at all times unless given permission to
leave.” (Id. Ex. 3.) It also cautioned that,
if she left her home without permission, she would be
“charged with escape from a correctional institution
under [Minnesota Statutes section 609.485].”
(Id.) Monitoring began on July 15, 2014.
(Id. Ex. 5.)
25, 2014, S.F. called EHM staff complaining of
“terrible stomach pains.” (Id.) She
obtained permission to leave her home for several hours to
seek medical attention, which she did. However, she did not
return by the time set by EHM staff nor did she advise EHM
staff of her whereabouts. After unsuccessful attempts to
reach her and Flowers by phone, a warrant for S.F.'s
arrest was issued. (Id. Ex. 8.) Minneapolis police
received notice of the warrant, advising them to “check
address of 3106 Chicago Ave S[outh], ” S.F.'s
address of record. (Id. Ex. 9.)
midnight, officers Schliesing and Reiter responded to that
address. Flowers met them at the door and learned of their
intention to arrest his daughter. According to the Complaint,
Flowers asked the officers why they intended to arrest S.F.
“The officers responded, ‘I don't know why,
but she could have done something yesterday or the day
before.'” (Compl. ¶ 5.) Flowers asked to see a
warrant, but the officers said they did not have
(Id.) He called S.F. to the door, and, shortly after
she arrived, “all of a sudden, unexpectedly and without
warning, [one of the officers] grabbed [him] by his throat,
choked him, and threw him.” (Id. ¶ 7.) He
alleges he was then beaten, taken outside, and thrown up
against a squad car. (Id. ¶ 8.) According to
the officers, however, Flowers obstructed their attempts to
arrest S.F. and then resisted arrest himself. (Lathrop Decl.
Ex. 11.) It is undisputed that Flowers was ultimately
arrested and charged with assault and
obstruction. S.F. disappeared during the struggle but
later turned herself in.
one year later, Flowers commenced this action. He
alleged a litany of claims against Reiter,
Schliesing, and the Minneapolis Police Department, including
claims for excessive force, unreasonable search and seizure,
and conspiracy pursuant to 42 U.S.C. § 1983. He also
alleged violations of 42 U.S.C. §§ 1985 and 1986,
as well as violations of state law. On October 19, 2016,
Defendants moved for partial summary judgment. In the
Court's view, partial summary judgment is warranted here.
base their Motion in large part on the lack of evidence
offered by Flowers. When a party seeks summary judgment by
pointing out an absence of evidence to support the nonmoving
party's claims, see Fed.R.Civ.P. 56(c)(1)(B);
McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507,
513 (8th Cir. 1995), the Court looks to the nonmovant to
“go beyond the pleadings, ” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (emphasis
added), and “set forth specific facts, ” through
affidavits, depositions, documents, and the like showing a
genuine issue for trial. McLaughlin, 50 F.3d 507 at
513. “Summary judgment [thus becomes] the put up or
shut up moment in a lawsuit.” Johnson v. Camridge
Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). Here,
Flowers has wholly failed to “put up”: his
responsive brief cites nothing beyond the allegations in the
Complaint (see Doc. No. 24), and he has not
submitted nor identified a single piece of evidence. This
alone is a sufficient basis for granting the Motion in its
entirety. Johnson, 325 F.3d at 901. Nevertheless,
even were the Court to examine each claim in light of the
evidence submitted by the officers, all would fail.
the Minneapolis Police Department argues it is not a
separate, suable entity, but rather is a division of the City
government. The Court agrees. El-Alamin v. Radke,
369 F. App'x 770, 771 (8th Cir. 2010) (per curiam)
(“[T]he Minneapolis Police Department (MPD) is not a
suable entity.”); Defedo v. Schnell, Civ. No.
15-2585, 2015 WL 6549586, at *2 (D. Minn. Oct. 27, 2015)
(Kyle, J.). Additionally, Flowers has not alleged the
existence of an unconstitutional policy or custom, proof of
which is required to prevail against a government entity.
Monell v. Dep't of Social Servs., 436 U.S. 658,
690-91 (1978). Accordingly, all claims against the
Minneapolis Police Department must be dismissed.
the officers argue that Flowers's §§ 1983 and
1985 conspiracy claims fail for lack of evidence, and the
Court agrees. Section 1983 provides a cause of action against
individuals who conspire to violate a plaintiff's
constitutional rights. Askew v. Millerd, 191 F.3d
953, 957 (8th Cir. 1999). Similarly, § 1985(3)
“provides a cause of action for damages sustained as a
result of . . . conspiracies to deprive individuals of equal
privileges and immunities and equal protection under the
law.” Kelly v. City of Omaha, 813 F.3d 1070,
1077 (8th Cir. 2016). For the claims to survive the
officers' Motion, the record must contain facts from
which a reasonable jury could infer the existence of a
conspiracy. Helmig v. Fowler, 828 F.3d 755, 763 (8th
Cir. 2016). A conspiracy involves “a ‘meeting of
the minds' or understanding among the conspirators to
achieve the conspiracy's aims.” White v.
McKinley, 519 F.3d 806, 816 (8th Cir. 2008) (internal
quotations and citation omitted). Since conspiracies are
“generally proved by circumstantial evidence, summary
judgment should only be granted where the evidence is so
one-sided as to leave no room for any reasonable difference
of opinion as to how the case should be decided.”
Helmig, 828 F.3d at 763 (internal quotation and
citations omitted). This is such a case.
support of his claim (but without citation to the record),
Flowers argues that he is a known community activist, the
officers had no warrant, and other, unnamed officers joined
in the use of excessive force “without delay.”
(Mem. in Opp'n 4-6.) In the Court's view, these facts
are insufficient to suggest an agreement among the officers
to violate his constitutional rights. It is not genuinely
disputed that Schliesing and Reiter each received notice of
S.F.'s arrest warrant directing them to check 3106
Chicago Avenue South, and they responded in separate
vehicles. Flowers has cited no evidence that Schliesing or
Reiter communicated at all prior to their arrival, recognized
this address as his, or expected to encounter him there. To
the contrary, he testified that he had no reason to believe
Schliesing or Reiter knew him as a community activist when
they arrived. (Flowers Dep. 126-27.) Further, Flowers
acknowledges that the officers stated their purpose was to
arrest S.F.; the record reveals no evidence of an ulterior
aim to violate Flowers's constitutional
rights. Only after Flowers questioned the
officers' legal authority did they allegedly assault him.
Hence, even taking Flowers's version of the facts as true
(i.e., that the officers beat him without warning),
“the record contains no proof [of a conspiracy] beyond
speculation.” Askew, 191 F.3d at 958.
Accordingly, Flowers's conspiracy claims (Counts 2 and 3
of the Complaint) will be dismissed.
absence of evidence supporting a conspiracy is also fatal to
Flowers's claim under 42 U.S.C. § 1986, which
provides a cause of action against individuals who knew of,
but failed to prevent, a § 1985 conspiracy. Keefe v.
City of Minneapolis, 785 F.3d 1216, 1223 (8th Cir.
2015). As discussed above, the record reveals no evidence of
a conspiracy and, in the absence of a conspiracy, Flowers
cannot prevail on his § 1986 claim. Jensen v.
Henderson, 315 F.3d 854, 863 (8th Cir. 2002) (§
1986 claim is “dependent upon a valid § 1985
claim”). Accordingly, his § 1986 claim will be
the officers seek summary judgment on Flowers's claim
under the Minnesota Constitution. Case law supports the
officers' contention that Minnesota does not recognize a
private right of action to enforce constitutional claims.
See, e.g., Jones v. James, Civ. No. 02-4131, 2005 WL
459652, at *8 (D. Minn. Feb. 24, 2005) (Ericksen, J.) (citing
Bird v. Dept. of Pub. Safety, et al., 375 N.W.2d 36,
40 (Minn.Ct.App. 1985)); see also Northstar Legal Found.
v. Honeywell Project, 355 N.W.2d 186, 188 (Minn.Ct.App.
1984) (no action lies under Minn. Const.). Flowers has failed
to address this argument in his response. (Mem. in Opp'n
7-8.) Accordingly, his claim under the Minnesota Constitution
(Count 4) will be dismissed.
the officers argue that Flowers's negligence claim fails
for lack of evidence. Flowers alleged negligence, but he has
cited no evidence of it, see Fed.R.Civ.P. 56(c), and none
appears in the record. Further, he has not cited any
authority on the standard of care supposedly owed to him by
the officers, nor has he explained how the officers failed to
meet that standard. (Mem. in Opp'n 8.) Hence, his
negligence claim (Count 7) will be dismissed.
on the foregoing, and all the files, records, and proceedings
herein, IT IS ORDERED that Defendants' Motion for Partial
Summary Judgment (Doc. No. 20) is GRANTED. Counts 2, 3, 4,
and 7 of Plaintiff's Complaint, as well as Counts 1, 5,
and 6 as ...