United States District Court, D. Minnesota
Howard G. Jackson, Plaintiff,
David Ossell, et al., Defendants.
G. Jackson, pro se Plaintiff.
Stephen J. Christie, Esq., St. Paul City Attorney, counsel
for Defendant David Ossell.
R. THORSON U.S. MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion to Amend
his Complaint. (Doc. No. 53.) The Court issued a briefing
schedule, allowing Plaintiff to file any written argument
supporting his motion by November 30, 2018. (Doc. No. 55.)
Plaintiff filed documents in support of his motion (Doc. Nos.
58, 59, 60), and Defendant Ossell filed opposition documents.
(Doc. Nos. 68, 69, 70, 71.) A hearing was held on
Plaintiff's motion on December 18, 2018. (See
Doc. No. 74, Minute Entry.) On December 19, 2018, the Court
received an unsolicited document from Plaintiff (with
exhibits), which appeared to supplement his already submitted
oral and written argument on his motion.(Doc. No. 79.)
Even though this document was submitted in violation of the
Local Rules and without permission of the Court, the Court
allowed this document with the exhibits to be filed as a
separate sealed document on the docket. (See Doc.
No. 78, 1/3/19 Order allowing the filing.) In Plaintiff's
motion documents, he seeks to add new claims and new parties.
For the reasons stated below, the Court denies
Plaintiff's motion (Doc. Nos. 53, 58).
December 18, 2017, Plaintiff filed a Complaint against David
Ossell, Melissa Gunderson, and the Ramsey County Human
Services Department. (Doc. No. 1.) He thereafter clarified
that he intended to sue Ossell and Gunderson in both their
personal and official capacities. (See Doc. No. 6.)
After receiving that clarification, this Court recommended
dismissal without prejudice of the official capacity claims
for failure to adequately allege that Ossell or Gunderson
were acting pursuant to an official policy or unofficial
custom of Ramsey County, and recommended dismissal without
prejudice of Ramsey County Human Services Department for
failure to plead allegations indicating the county acted
unlawfully. (Doc. No. 8.) United States Chief Judge John R.
Tunheim issued an order consistent with that recommendation
on April 30, 2018. (Doc. No. 17.)
14, 2018, Ossell filed a Motion to Dismiss the Complaint.
(Doc. No. 21.) That motion was denied on November 6, 2018,
based on this Court's recommendation. (Doc. No. 57;
see Doc. No. 49, Sealed Report and Recommendation.)
Therefore, at the time Plaintiff filed his papers supporting
the present motion to amend, Plaintiff's Fourth Amendment
claim asserted against Defendants Ossell and Gunderson in
their personal capacity remained, and still
Plaintiff's motion to amend papers are not clear as to
what he is specifically seeking to add, it appears that he is
seeking to add back in the official capacity claims against
Ossell and Gunderson as well as claims against various other
Defendants - i.e., the City of Saint Paul; the County of
Ramsey; the State of Minnesota; the Minnesota Department of
Human Service/”H.S.D.”; the Saint Paul Police
Department; Todd Axtell, Chief of the Saint Paul Police
Department; and John J. Choi, Ramsey County Attorney.
(See generally Doc. Nos. 53, 58.) It appears that
Plaintiff is trying to add claims against the City of Saint
Paul, the County of Ramsey, the State of Minnesota, and the
Minnesota Department of Human Services based on their
supervisory role over Defendants Ossell and Gunderson or
other entities. It also appears that Plaintiff is attempting
to add claims in addition to his current Fourth Amendment
claim - including one that relates to the alleged misconduct
in how the “H.S.D.” handled Plaintiff's
matter in state court, and one based on “Malice”
that seems to be connected to actions taken with respect to
the underlying child protection/child custody proceedings.
Defendant Ossell, as an employee of the St. Paul Police
Department, opposes the motion with respect to the proposed
amendments that assert new claims against himself and the
other St. Paul parties-the City of St. Paul, the St. Paul
Police Department, and Chief Todd Axtell-on the grounds that
the proposed amendments are futile. (Doc. No. 68, Def.
Ossell's Mem. of Law Opposing Pl.'s Mot. to Am.
Compl. (“Def.'s Mem.”).) Defendant Gunderson
has not responded and is yet to be served.
where amendment is permitted as a matter of course, under
Federal Rule of Civil Procedure 15, “a party may amend
its pleading only with the opposing party's written
consent or the court's leave [and] [t]he court should
freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2). The trial court has discretion to
decide whether to grant leave to amend. Niagara of Wis.
Paper Corp. v. Paper Indus. Union-Mgmt. Pension Fund,
800 F.2d 742, 749 (8th Cir. 1986). “There is no
absolute right to amend.” Becker v. Univ. of Neb.
at Omaha, 191 F.3d 904, 908 (8th Cir. 1999).
“[E]ven where some prejudice to the adverse party would
result if the motion to amend were granted, that prejudice
must be balanced against the hardship to the moving party if
it is denied.” Buder v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 644 F.2d 690, 694 (8th Cir.
1981). “[D]enial of leave to amend pleadings is
appropriate only in those limited circumstances in which
undue delay, bad faith on the part of the moving party,
futility of the amendment, or unfair prejudice to the
non-moving party can be demonstrated.” Roberson v.
Hayti Police Dep't, 241 F.3d 992, 995 (8th Cir.
futility challenge to a motion to amend a complaint is
successful where “claims created by the amendment would
not withstand a Motion to Dismiss for failure to state a
claim upon which relief can be granted.” DeRoche v.
All Am. Bottling Corp., 38 F.Supp.2d 1102, 1106 (D.
Minn. 1998); see also Lunsford v. RBC Dain Rauscher,
Inc., 590 F.Supp.2d 1153, 1158 (D. Minn. 2008) (stating
that a motion to amend is futile if the amended complaint
would not survive a motion to dismiss). “Likelihood of
success on the new claim or defenses is not a consideration
for denying leave to amend unless the claim is clearly
frivolous.” Becker, 191 F.3d at 908.
survive a motion to dismiss, a complaint must contain
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Although a complaint
need not contain “detailed factual allegations, ”
it must contain facts with enough specificity “to raise
a right to relief above the speculative level.”
Id. at 555. This standard “calls for enough
fact[s] to raise a reasonable expectation that discovery will
reveal evidence of [the claim].” Id. at 556.
Whether a complaint states a claim is a question of law.
Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986).
“Rule 12(b)(6) authorizes a court to dismiss a claim on
the basis of a dispositive issue of law.” Neitzke
v. Williams, 490 U.S. 319, 326 (1989).
with respect to Plaintiff's alleged official-capacity
claims against Ossell and Gunderson, the claims as alleged
are futile for the same reasons stated by this Court in its
March 19, 2018 Report and Recommendation. Plaintiff's
proposed amendments do not adequately allege that Ossell or
Gunderson were acting pursuant to an official policy or
unofficial custom of Ramsey County during the course of the
actions alleged to have violated Jackson's constitutional
rights. See, e.g., Ware v. Jackson Cnty.,
Mo., 150 F.3d 873, 880 (8th Cir. 1998). That Ramsey
County employed Ossell and Gunderson at the time of their
alleged misconduct is not sufficient to establish liability.
See Monell v. Dep't of Soc. Serv., 436 U.S. 658,
if Plaintiff is seeking to add as Defendants the City of
Saint Paul; the County of Ramsey; the State of Minnesota; the
Minnesota Department of Human Service/”H.S.D.”;
the Saint Paul Police Department; Todd Axtell, Chief of the
Saint Paul Police Department; or John J. Choi, Ramsey County
Attorney, the motion to amend is denied because Plaintiff has
not pled facts that would support a plausible claim against
any of these parties. Put another way, Plaintiff has not pled
facts that implicate any of these parties in the alleged
wrongdoing (i.e., illegal search and seizure) that Plaintiff
complains of. See Parrish v. Ball, 594 F.3d 993, 997
(8th Cir. 2010) (noting that plaintiff must show that the
governmental entity “itself caused the
constitutional violation at issue” in order to sustain
an official-capacity claim). Alleging that entities or
individuals supervised or were employers of Ossell or
Gunderson at the time of the alleged violation of
Plaintiff's Fourth Amendment rights is not enough.
See Shimota v. Wegner, No. 15-1590 (JRT/FLN), 2016
WL 1254240, at *11 (D. Minn. Mar. 29, 2016) (dismissing
supervisory and Monell claims because
plaintiff's conclusory allegations were insufficient);
see also Parrish, 594 F.3d at 997 (“[A] local
government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents on a respondeat
superior theory of liability.”) (quotations omitted).
Without allegations that, if ...