United States District Court, D. Minnesota
N. ERICKSEN UNITED STATES DISTRICT JUDGE.
Abdirahman Abdirzak Hersi alleges violations of his
constitutional rights in an investigation that led to his
indictment by a federal grand jury and his subsequent arrest.
He sues Defendants Heather Weyker, a police officer for the
St. Paul Police Department in Minnesota; John Bandemer, a St.
Paul Police Department sergeant who is alleged to have been
Weyker's supervisor; Robert Roes 1-3, who are allegedly
supervisory St. Paul police officers; and the City of St.
Paul (“St. Paul”). Weyker and Bandemer move to
dismiss Hersi's complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim and on
absolute and qualified immunity grounds. Dkt. No. 19. St.
Paul moves on behalf of the City of St. Paul and Robert Roes
1-3 for judgment on the pleadings pursuant to Rule 12(c).
Dkt. No. 25.
investigation at the core of Hersi's civil complaint
targeted a suspected venture involving the sex-trafficking of
minor girls across Minnesota, Tennessee, and Ohio. The
investigation resulted in the criminal indictment of thirty
people, mostly Somali, in the Middle District of Tennessee in
2010-2011 (“Tennessee Case”). Hersi alleges that
Weyker fabricated evidence about him and others throughout
the investigation, resulting in a tainted indictment that was
further corrupted by Weyker's continuing deception, and
causing his arrest and detention without probable cause.
of Hersi's co-defendants in the Tennessee Case bring
separate suits similarly alleging constitutional violations,
and a twenty-first person brings another related civil suit.
The parties agreed to coordinated briefing on the
Defendants' motions. The Court assumes familiarity with
its fuller opinion in one of the related cases, Osman v.
Weyker, et al., No. 16cv908 (“Osman
Opinion”) (filed simultaneously herewith), and will not
repeat that opinion's discussion verbatim here, given the
overlap in allegations and arguments. Hersi is represented by
the same attorneys as the plaintiff in that case, and their
attorneys filed consolidated opposition papers to the
Defendants' motions. See Osman Pls.' Opp. to
St. Paul Mot., Dkt. No. 30; Osman Pls.' Opp. to DOJ Mot.
to Dismiss (“Osman DOJ Opp.”), Dkt. No. 36.
Court held a hearing on Defendants' motions on May 3,
2017, and now grants both motions.
motion to dismiss or a motion for judgment on the pleadings
is appropriately granted “only when there is no dispute
as to any material facts and the moving party is entitled to
judgment as a [m]atter of law.” Greenman v.
Jessen, 787 F.3d 882, 887 (8th Cir. 2015) (citation
omitted). To survive a Rule 12 motion, “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)); Haney v. Portfolio Recovery
Assocs., LLC, 837 F.3d 918, 924 (8th Cir. 2016), as
amended (Dec. 27, 2016). See also Osman Op.
the salient allegations are similar to those alleged by Osman
and summarized and analyzed in the Court's order in that
case. See, e.g., Osman Op. 4-8. The Court briefly
recounts some allegations in Hersi's First Amended
Complaint and other facts gleaned from the Tennessee Case
was arrested on November 8, 2010, after being indicted by a
grand jury in the Tennessee Case. FAC ¶ 9-10. He was
imprisoned as a pretrial detainee. FAC ¶ 65.
First Superseding Indictment filed on November 3, 2010,
indicted him in five counts. See United States v.
Hersi, No. 3:10cr260, Dkt. No. 36 (M.D. Tenn. Nov. 3,
2010) (“FSI”). Two counts alleged participation
in a sex-trafficking conspiracy in violation of 18 U.S.C.
§ 1591(a) (Counts 1 and 2). These counts alleged that on
April 25, 2009, as some co-defendants began to plan a trip to
Nashville, Tennessee “for the purpose of transporting
Jane Doe Two to Nashville to engage in commercial sex acts,
” FSI ¶ 37, those defendants “transported
Jane Doe Two to a location where” Hersi “was
present, ” where she was “provided to” him
“for the purpose of sex, ” and that Hersi
“did engage in sex acts with Jane Doe Two, ” FSI
¶ 40. The indictment alleged that the next day, Hersi
and some of the co-defendants “offer[ed] Jane Doe
Two” to persons “for the purpose of commercial
sex acts” to “attempt to raise money for the trip
to Nashville . . . .” FSI ¶¶ 43-44. Counts 12
and 13 alleged that Hersi recruited and attempted to recruit
Jane Doe Two, a minor, to engage in commercial sex.
See FSI ¶¶ 97-98.
has “never met Jane Doe Two, and any allegations to the
contrary are fabricated.” FAC ¶ 15. Prior to his
indictment, “Weyker and others were in possession of
information that Hersi had no connection whatsoever to Jane
Doe Two.” FAC ¶ 16. Hersi “certainly never
engaged in sexual intercourse with Jane Doe Two, ”
“certainly never paid a fee nor provided anything of
value in exchange for engaging in sex acts” with her,
and “certainly never arranged for Jane Doe Two to have
sex with anyone in exchange for a fee, ” and “any
allegations to the contrary were fabricated.” FAC
¶¶ 18-20. Hersi was not involved in any way with a
trip that Jane Doe Two and others took to Nashville in April
2009 in which the government alleged that Jane Doe Two
engaged in sex for money. See FAC ¶¶ 21,
31. Weyker manipulated Jane Doe Two “into fabricating
evidence about Hersi, whom she had never met, and
others.” FAC ¶ 45.
addition, the fifth charge against Hersi in the First
Superseding Indictment, Count 18, charged him with conspiring
to commit credit card fraud in violation of 18 U.S.C. §
1029(a). FSI ¶ 117.
Spring 2012, a group of the co-defendants, including Hersi,
were scheduled to stand trial. See FAC ¶¶
49; United States v. Adan, 913 F.Supp.2d 555, 560
(M.D. Tenn. 2012). “A jury was empaneled as to Hersi,
but a mistrial was declared as to Hersi's case[, ] and
the jury did not return a verdict against Hersi.” FAC
¶ 50; see also Adan, 913 F.Supp.2d at 560
(“[T]he [district court] concluded that the
Government's proof of these Defendants' ages, ”
including Hersi's, “at the time of their offenses
was insufficient to establish the Court's jurisdiction .
. .” and “granted the Government's motion for
a mistrial without prejudice” as to those defendants.).
In June 2012, the district court reconsidered its order
dismissing without prejudice the case against Hersi and found
that because in the two months since the court had dismissed
with prejudice, the government had failed to take steps to
tender certification as required under the Juvenile
Delinquency Act, it was appropriate to reconsider and dismiss
with prejudice. United States v. Hersi, No.
3:10cr260, Dkt. No. 2554, at 5 (M.D. Tenn. June 7, 2012).
was released from custody on July 11, 2012. FAC ¶ 53.
jury reached verdicts for nine defendants in the April 2012
trial. The jury acquitted six defendants on all charges and
convicted three others on some charges. In December 2012, the
district court granted the three convicted defendants'
Federal Rule of Criminal Procedure 29 motions for acquittal,
on the basis of a variance. Adan, 913 F.Supp.2d at
560, 579; see also FAC ¶ 52. In March 2016, the
Sixth Circuit Court of Appeals issued an order affirming the
district court's Rule 29 order. See FAC ¶
54; United States v. Fahra, 6 ...