Opinion
Civil No. 99-1680 (DWF/SRN)
August 7, 2001
Jill Waite, Esq., Waite Law Office, Minneapolis, and Jill Clark, Esq., Clark Law Office, Golden Valley, appeared on behalf of Plaintiff.
Joseph Sokolowski, Esq., and Kevin Coan, Esq., Parsinen Kaplan Levy Rosberg Gotlieb, Minneapolis, MN appeared on behalf of Defendant Tom Thumb, Inc.
James Moore, Assistant City Attorney, Minneapolis City Attorney Office, Minneapolis, MN appeared on behalf of Defendants City of Minneapolis, Jessica Kane, Todd Lappegard, and Scott Buck.
MEMORANDUM OPINION AND ORDER
The above-entitled matter came on for hearing before the undersigned United States District Judge on May 18, 2001, pursuant to Defendants City of Minneapolis, Jessica Kane, Todd Lappegard, and Scott Buck's (collectively "City Defendants") Motion for Summary Judgment; Defendant Tom Thumb's Motion to Dismiss Count V of the Second Amended Complaint; Defendant Tom Thumb's Motion for Summary Judgment; and Defendant Tom Thumb's Motion to Strike certain affidavits. In the Second Amended Complaint, Plaintiffs allege race discrimination in violation of the Minnesota Human Rights Act (MHRA) (Count I); national origin discrimination in violation of the MHRA (Count II); aiding and abetting discrimination in violation of the MHRA (Count III); false imprisonment (Count IV); violations of 42 U.S.C. § 1983 and 1985(3) (Count V); race discrimination in violation of Title VII (Count VI); and national origin discrimination in violation of Title VII (Count VII). For the reasons stated, Defendant Tom Thumb's Motion to Dismiss Count V of the Second Amended Complaint is granted; Defendant Tom Thumb's Motion to Strike is denied; Defendant Tom Thumb's Motion for Summary Judgment is denied; and the City Defendants' Motion for Summary Judgment is granted in part and denied in part.
Background
The Court presents the facts here in the light most favorable to the non-moving party, the Plaintiffs. The Court notes that these facts are hotly contested.
Plaintiff Mary Fletcher is an African-American woman, born in Liberia. Plaintiff Jean Teamah is Fletcher's daughter. On May 28, 1998, Ms. Teamah entered a Tom Thumb convenience store to purchase lottery tickets for her mother. Ms. Fletcher and Harris Teamah, who is Fletcher's ex-husband and long-time companion, waited for Ms. Teamah in the car.
A clerk, later identified as Curtis Silbernagel, first attempted to assist Ms. Teamah. Ms. Fletcher and Ms. Teamah had prepared four "playslips," which Ms. Teamah presented to Mr. Silbernagel along with $20. Mr. Silbernagel had some difficulty getting the computer to read the payslips. Because of the delay, Ms. Fletcher grew concerned and joined her daughter in the store. Lisa Marcy, an assistant manager for Tom Thumb, noticed that Mr. Silbernagel was having trouble and attempted to enter the payslips herself. Ms. Marcy also had difficulty getting the computer to read the payslips.
According to Mr. Silbernagel, Ms. Marcy began using racist language, hurling a variety of racial epithets at Ms. Teamah and Ms. Fletcher. Ms. Fletcher and Ms. Teamah both testified that Ms. Marcy became agitated and began yelling at them. Ms. Fletcher and Ms. Teamah both suggested to Ms. Marcy that she was behaving in a racist manner. Ms. Marcy then indicated that she was going to call the police.
Neither Ms. Teamah nor Ms. Fletcher reported any racist language when deposed. Ms. Fletcher, in a later affidavit, explained that — being from Liberia — she was not entirely clear on the meaning of the word "nigger." She understood it to be a "cuss word," but did not grasp the racist implications. Fletcher Aff. ¶ 6.
Ms. Marcy, still in possession of the playslips and the $20, then phoned 911. Minneapolis 911 answered, but placed Ms. Marcy on hold. Jessica Kane, a 911 operator, eventually took Ms. Marcy's call. Ms. Marcy indicated that she was calling from the Tom Thumb in Northeast Minneapolis and that she had two customers who were causing a disturbance. Ms. Kane asked Ms. Marcy the race of the two people in question; Ms. Marcy responded that she was "not exactly sure." Ms. Kane then indicated that she would dispatch a unit to the Northeast Minneapolis Tom Thumb. For any number of reasons — because they wanted their lottery cards and money back, because they felt that they had to wait, or because they wanted to assert their innocence to the police — Ms. Fletcher and Ms. Teamah waited at Tom Thumb for the police to arrive. At some point, Mr. Teamah joined them. None of the three were loud or causing any commotion.
Approximately 20 minutes after the 911 call, Minneapolis Police Officers Todd Lappegard and Scott Buck arrived at the Tom Thumb. According to Officer Buck, when the officers entered the store, Marcy pointed at the Plaintiffs and Mr. Teamah and said "I want them out." At that time, according to Officer Buck, the Plaintiffs were "just standing there."
The officers asked the Plaintiffs to step outside, and there they explained to Ms. Teamah and Ms. Fletcher that Tom Thumb was a private business with the right to exclude people. Ms. Fletcher indicated to Officer Buck that she felt they were being excluded from the establishment because of their race, and she described two past incidents in which she felt Ms. Marcy had behaved in a racist way. Officer Buck suggested that she call the manager of Tom Thumb to complain, but continued to maintain that if the Plaintiffs reentered the store they would be trespassing and subject to arrest. Officer Lappegard retrieved Ms. Fletcher's payslips; the record does not indicate whether Ms. Fletcher was ever reimbursed the $5 for the payslip that did not get registered. Moreover, Ms. Fletcher was not given the 15 tickets from the three payslips that did properly register with the lottery, so she does not know which three payslips went through and which one did not.
On one occasion, Ms. Marcy told Ms. Fletcher that Tom Thumb did not give out restroom keys to customers, yet, at a later date, Ms. Fletcher saw Ms. Marcy give a white man the restroom key. Ms. Fletcher also claims that she tried to purchase lottery tickets from Ms. Marcy with $3 in pennies, but was refused service.
The officers soon left. Despite Ms. Fletcher's request that the police prepare a report, no report was generated.
The Plaintiffs, now running late for a prior commitment, did not have a chance to go elsewhere to play the lottery. Ms. Fletcher asserts that several of her "boards" were winners, and one of the playslips contained the winning numbers for the daily Cash4Life top prize — $1,000 per week for life.
Discussion
1. Defendant Tom Thumb's Motion to Strike
Tom Thumb has moved to strike the affidavits of Curtis Silbernagel, Kelly Moeller, and Wolday Gebremichael, because Moeller and Gebremichael were not disclosed as potential witnesses and because all three affidavits were untimely. The Court will deny the motion to strike but notes that the result of the various dispositive motions would be the same with or without these affidavits. Mr. Silbernagel's testimony that Ms. Marcy used racist language is, for purposes of this motion, the only potentially relevant material in the affidavits, and it is not critical to the Plaintiffs' position. While Mr. Silbernagel's testimony gives added credence to the contention that Ms. Marcy was motivated by racial animus, there is sufficient additional evidence to that effect to render Mr. Silbernagel's testimony the proverbial "icing on the cake."
2. Defendant Tom Thumb's Motion to Dismiss
Tom Thumb has brought a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In deciding a motion to dismiss, the Court must assume all facts in the Complaint to be true and construe all reasonable inferences from those facts in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). The Court grants a motion to dismiss only if it is clear beyond any doubt that no relief could be granted under any set of facts consistent with the allegations in the Complaint. Id. The Court may grant a motion to dismiss on the basis of a dispositive issue of law. Nietzke v. Williams, 490 U.S. 319, 326 (1989). The Court need not resolve all questions of law in a manner which favors the complainant; rather, the Court may dismiss a claim founded upon a legal theory which is "close but ultimately unavailing." Id. at 327.
Tom Thumb alleges that Plaintiffs have not asserted facts which would support the proposition that Tom Thumb was acting under color of state law, and, as a result, Plaintiffs' claims under 42 U.S.C. § 1983 should be dismissed. The Court agrees.
Tom Thumb also asserts that this defect defeats Plaintiffs' claim under 42 U.S.C. § 1985(3). Tom Thumb cites Collins v. Hardyman, 341 U.S. 651 (1951), and its progeny in support of this proposition. However, the U.S. Supreme Court explicitly overruled Collins in Griffen v. Breckenridge, 403 U.S. 88 (1971) (holding that a plaintiff could maintain a claim under 42 U.S.C. § 1985(3) against purely private actors).
"In order to defeat a motion for summary judgment, [Plaintiffs] must offer evidence sufficient to support the conclusion that the defendants 'directed themselves toward an unconstitutional action by virtue of a mutual understanding,' and provide facts which would establish a 'meeting of the minds.'" DuBose v. Kelly, 187 F.3d 999, 1003 (8th Cir. 1999) (citing White v. Walsh, 649 F.2d 560, 561 (8th Cir. 1981)). In the absence of an allegation either that the police abdicated authority in favor of knowingly sanctioning Tom Thumb's discriminatory conduct, see Cruz v. Donnelly, 727 F.2d 79 (3rd Cir. 1984), or that Tom Thumb knowingly and purposely availed itself of a discriminatory state policy, custom, or statute, see Adickes v. S. H. Kress Co., 398 U.S. 144, 161 (1970) ("[w]hatever else may also be necessary to show that a person has acted 'under color of [a] statute' for purposes of § 1983, . . . we think it essential that he act with the knowledge of and pursuant to that statute), the Plaintiffs have failed to allege the requisite factual predicate to support a finding that Tom Thumb was acting under color of state law.
At most, Tom Thumb had knowledge of the trespass statute, but that statute is not itself discriminatory and there is no allegation or evidence that the Minneapolis police apply the statute in a discriminatory manner. Plaintiffs identify three customs, policies, or practices which were discriminatory: (1) failing to train personnel regarding individual civil rights; (2) failing to discipline personnel for violations of individual civil rights; and (3) failing to discipline personnel for concealing the discriminatory or unconstitutional acts of other personnel. Although these policies may have facilitated Tom Thumb's own discriminatory conduct, there is no allegation or evidence that Tom Thumb was aware of these policies. Essentially, Plaintiffs have alleged that both Tom Thumb and the City Defendants engaged in discrimination, but the facts alleged — and those developed during discovery — do not support a finding that Tom Thumb and the City Defendants deliberately worked in concert to engage in discrimination.
Tom Thumb further alleges that Plaintiffs have not asserted facts in the Complaint which indicate any conspiracy between agents of Tom Thumb and any third party; as a result, Tom Thumb asserts that Plaintiffs' claim under 42 U.S.C. § 1985(3) should be dismissed. The Court agrees.
A plaintiff asserting a claim under 42 U.S.C. § 1985(3) must allege that there was a meeting of the minds between two or more individuals to deprive the plaintiff of her civil rights. See McDowell v. Jones, 990 F.2d 433 (8th Cir. 1993); Graves v. U.S., 961 F. Supp. 314, 320 (D.D.C. 1997); Schneeweis v. Northwest Technical College, 1998 WL 420564, *13 (D.Minn. 1998). This requirement does not reflect a "heightened pleading standard," see Leatherman v. Tarrant Cty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993) (holding that Rule 9 heightened pleading standard does not apply to civil rights claims); rather, the requirement is simply that the plaintiff plead the essential elements of the claim.
Plaintiffs claim that the bald allegation of conspiracy, coupled with the factual allegation that the police officers spoke with Ms. Marcy, should be sufficient to satisfy the pleading requirement. The Court does not agree. Plaintiffs have not alleged that the police officers intended to assist Ms. Marcy in effectuating a violation of Plaintiffs' civil rights or that Ms. Marcy was aware of any discriminatory policy on the part of the police. Plaintiffs' reliance on Adickes is misplaced; in Adickes, the plaintiff alleged facts from which one could infer that a police officer was actually present during the decision to deny Adickes service and that the police officer subsequently furthered the discrimination by arresting the plaintiff. See Adickes, 398 U.S. at 158 (indicating that the presence of the police officer during the discriminatory incident and the possibility that the police officer affected the private party's actions were pivotal allegations in the claim of conspiracy). Here, the Plaintiffs have alleged only that police officers responded to a report of a customer disturbance and acted accordingly. For the reasons stated, the Court finds that Defendant Tom Thumb is entitled to dismissal of Count V of the Second Amended Complaint.
Even if this claim should survive a Rule 12(b)(6) motion on the basis of the allegation in the Complaint that the 911 operator asked the race of the disruptive customers, the claim would be dismissed on summary judgment because it is undisputed that Ms. Marcy did not inform the 911 operator of the customers' race. In other words, when the City responded to the 911 call, the City did not know the race of the people involved. Moreover, the factual record which has been developed does not support an inference of any meeting of the minds between the responding officers and Ms. Marcy.
3. Summary Judgment Standard
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences which may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy, and inexpensive determination of every action.'" Fed.R.Civ.P. 1. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enterprise Bank, 92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in the record which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik, 47 F.3d at 957.
4. Defendant Tom Thumb's Motion for Summary Judgment
Defendant Tom Thumb alleges that all of Plaintiffs' remaining claims of discrimination in the provision of public accommodations on the basis of race and national origin should be dismissed because Plaintiffs' have not provided sufficient facts from which a reasonable juror could conclude that Tom Thumb's actions were motivated by racial animus. The Court disagrees.
Setting aside the testimony of Mr. Silbernagel that Ms. Marcy used racial epithets during the incident, Ms. Fletcher and Ms. Teamah have both alleged that Ms. Marcy was unnecessarily and inexplicably harsh with them, yelling at them and using profanity. Moreover, Ms. Fletcher testified that Ms. Marcy had, on past occasions, behaved in a manner which could easily be construed as discriminatory. While the use of racial epithets would be direct evidence of racial animus, the Plaintiffs have offered sufficient circumstantial evidence of discriminatory intent to survive a motion for summary judgment.
Tom Thumb further argues that Plaintiffs have not offered any evidence that Tom Thumb's proffered reason for its behavior — that it was legitimately responding to an unruly customer — is pretextual. Again, the Plaintiffs have, indeed, created a sufficient record to survive a motion for summary judgment. A malfunction with the lottery computer might be a legitimate reason to ask the Plaintiffs to step aside, but Tom Thumb did more than that: Ms. Marcy, Tom Thumb's agent, ejected the Plaintiffs from the store. Tom Thumb's proffered reason for the ejection hinges upon the alleged fact that Ms. Teamah and Ms. Fletcher were disruptive; Ms. Teamah and Ms. Fletcher deny being disruptive, and all of the eyewitnesses to their behavior other than Ms. Marcy (Mr. Silbernagel and the responding Minneapolis police officers) support the Plaintiffs' claim.
Finally, with respect to the claim for damages related to lost lottery winnings, the Court finds that the record presents numerous fact questions about whether the Plaintiffs really would have won the lottery and whether they met their duty to mitigate damages.
For the reasons stated, the Court finds that summary judgment on the remaining claims against Tom Thumb is inappropriate, and that motion is denied.
5. City Defendants' Motion for Summary Judgment
A. Individual City Employees
Under 42 U.S.C. § 1983, government officials performing discretionary functions are generally shielded from liability for civil damages as long as their actions did not violate clearly established law that an objectively reasonable person in their position would have known. See Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738,73 L.Ed.2d 396 (1982). Indeed, an allegation of malice is not sufficient to defeat immunity if the officer acted in an objectively legal, reasonable manner. See Malley v. Briggs, 475 U.S. 335 at 1096 (1986). Whether an official may be held personally liable for an allegedly unlawful act generally relies on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time the action was taken. See Wilson v. Layne, 119 S. Ct.1692, 1699 (1999).
Defendants Lappegard and Buck assert that they are entitled to qualified immunity from Plaintiffs' claims under § 1983 and § 1985(3). The Court agrees. The rights asserted by Plaintiffs, to due process and equal protection of the laws, are clearly established; it is true that, when balancing the right of a proprietor to refuse service against the right of an individual to access to public accommodations without respect to race, the right to access of the individual trumps. However, the Court finds that an objectively reasonable officer, in the position of Officers Buck and Lappegard, could have believed that his actions were legal. The test is not simply whether a reasonable officer should have known about the constitutional right (or example, to have access to public accommodations without discrimination), but whether a reasonable officer could not have thought that his actions violated that right. Indeed, Officers Buck and Lappegard were following the standard procedures of the Minneapolis police force, operating as they were instructed; while the policy of the police department may not pass constitutional muster, there would be no way for even a reasonably well-trained officer to know, with certainty, that the policy and his behavior were unconstitutional. Plaintiffs make much of the fact that the officers in question admitted during their depositions that they thought it was wrong to deny people service on the basis of their race, but this fact is irrelevant. First, qualified immunity stands or falls on the objective reasonableness of the officers' actions, not on their subjective state of mind; although it may seem perverse, the law provides that, even if the police officers knew that their actions were illegal, they would be protected by qualified immunity if an objectively reasonable officer might have thought the actions were legal. Second, the officers felt it was wrong for proprietors to discriminate on the basis of race, but they did not testify that they knew it was illegal to enforce the trespass statute to effectuate racial discrimination. There are many activities and actions which are morally wrong but which are nevertheless legal; for purposes of ascertaining a constitutional violation, the distinction is critical.
The Court rejects the notion that the officers should have known that the department's policy was unconstitutional. The purpose of qualified immunity is to shield from liability all but the plainly incompetent and those who knowingly violate the law. See Brady v. Fort Bend Co., 58 F.3d 173 (5th Cir. 1995). The Court does not believe that a police officer who fails to compare the policy handed to him by his department to Supreme Court constitutional jurisprudence is "plainly incompetent."
With respect to Jessica Kane, the 911 operator, the Court finds that she is entitled to qualified immunity. Indeed, it is unclear to the Court what action Ms. Kane took that could possibly be construed as a violation of the Plaintiffs' rights. Ms. Kane asked a complainant a question about the race of customers involved in a dispute, an action which is certainly not illegal. Ms. Kane then, without knowing the race of anyone involved, dispatched a unit to respond to a complaint, an action which is also lawful. Ms. Kane did her job, nothing more. While one might speculate that Ms. Kane thought the race of parties was relevant to the performance of her duties, the test for qualified immunity is objective rather than subjective. Objectively, there was nothing unlawful about Ms. Kane's actions.
The Plaintiffs make much of the fact that Ms. Kane first asked about race, rather than about any other identifying characteristics. However, the Plaintiffs have not identified, and the Court cannot independently find, any statute or case which states that race is not an appropriate piece of identifying information for law enforcement officers or which dictates the order in which 911 operators should request identifying information.
Plaintiffs have also asserted claims against the individual City Defendants for "aiding and abetting discrimination" in violation of Minn. Stat. § 363.03, subd. 6. That statute creates liability for an individual who intentionally aids, abets, incites, compels, or coerces another person to engage in unlawful discrimination or who intentionally prevents another person from complying with the MHRA.
Certainly with respect to Ms. Kane there is no evidence that she intentionally assisted anyone in discriminating; as noted above, Ms. Kane did not know the race or national origin of anyone involved when she dispatched a unit to the Tom Thumb. Similarly, however, there is no evidence that Officers Lappegard or Buck intentionally assisted Tom Thumb in engaging in discrimination. The uncontroverted evidence is that the officers believed that the law required them to escort the Plaintiffs from the store, that the trespass statutes eliminated any discretion they might have had. While that belief may have been in error, it is fatal to any allegation that they intentionally aided or abetted discrimination.
Finally, Plaintiffs have asserted a claim for false imprisonment. Plaintiffs concede "that their false imprisonment claim is somewhat novel; no existing claim cleanly attacks the 'quasi-arrest' concept [advanced by Plaintiffs]. . . . Plaintiffs ask for an extension of the false imprisonment law to address this situation, which is likewise difficult to address under the law of unlawful arrest, as there technically was no arrest." Plaintiffs Memorandum at 27, n. 23. Plaintiffs offer no legal justification for the extension of the tort of false imprisonment, and the Court is not inclined to test the boundaries of common law claims, over which this Court has only supplemental jurisdiction.
B. The City of Minneapolis
At the outset, the Court notes that the Plaintiffs have failed to assert facts sufficient to support a claim for conspiracy in violation of 42 U.S.C. § 1985(3). The Court has discussed the defects in the claim with respect to Tom Thumb, the City's alleged co-conspirator, and it is necessarily a two-way street: if Plaintiffs have failed to state a claim as against one of two alleged co-conspirators, then any claim of conspiracy must fail.
In all other respects, however, the Court finds that Plaintiffs have created a genuine issue of material fact regarding whether the City of Minneapolis, through its policies and customs, engaged in unconstitutional or otherwise unlawful discrimination. The evidence in the record strongly indicates that the custom and policy of the Minneapolis Police Department is to respond to calls of customer disturbance by ejecting the allegedly offending customer . . . without engaging in any sort of investigation and without filing any sort of report. Moreover, the evidence indicates that none of the officers were even aware of Minn. Stat. § 363.101, which renders violation of the MHRA a misdemeanor. Plaintiffs could, and do, argue that the customs and policies of enforcing the trespass statute without regard to the countervailing force of the MHRA and its criminal provision; failing to investigate any claims of racial discrimination in access to public accommodations; and failing to create and retain records of incidents in which such MHRA violations are alleged deprived the Plaintiffs of due process and equal protection of the laws. At a minimum, the record creates sufficient issues of material fact to defeat a motion for summary judgment.
For the reasons stated, IT IS HEREBY ORDERED:
1. Defendant Tom Thumb's Motion to Strike (Doc. No. 49) is DENIED;
2. Defendant Tom Thumb's Motion to Dismiss Count V (Doc. No. 29) is GRANTED, and that claim as against Defendant Tom Thumb is DISMISSED WITH PREJUDICE;
3. Defendant Tom Thumb's Motion for Summary Judgment (Doc. No. 40) is DENIED;
4. Defendants City of Minneapolis, Jessica Kane, Todd Lappegard, and Scott Buck's Motion for Summary Judgment (Doc. No. 52) is GRANTED IN PART and DENIED IN PART as follows:
a. The motion is GRANTED with respect to all claims against Defendants Jessica Kane, Todd Lappegard, and Scott Buck, and the claims against these Defendants are DISMISSED WITH PREJUDICE;
b. The motion is GRANTED with respect to Plaintiffs' claim under 42 U.S.C. § 1985(3), and that portion of Count V is DISMISSED WITH PREJUDICE;
c. The motion is GRANTED with respect to Counts III and IV and these claims, as against all Defendants, are DISMISSED WITH PREJUDICE; and
d. The motion is in all other respects DENIED.