This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).

UNPUBLISHED OPINION

HALBROOKS, Judge

This matter arises out of the execution of a search warrant at respondent's home. Respondent brought suit against Anoka County, the Anoka-Hennepin East Metro Narcotics and Violent Crimes Task Force (Task Force), Anoka County Sheriff Larry Podany, and several individual law-enforcement officers, asserting multiple causes of action including assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent training, negligent retention, negligent supervision, and invasion of privacy. Respondent sought damages and injunctive and declaratory relief.

Ruling on defendants' (now appellants') motion to dismiss and/or for summary judgment, the district court (1) granted summary judgment with respect to the Task Force and dismissed the Task Force as a party; (2) granted summary judgment in favor of all defendants, except for Anoka County and Sheriff Podany, on all claims subject to a two-year statute of limitations, including assault, battery, and intentional infliction of emotional distress; (3) granted summary judgment in favor of all defendants as to the invasion-of-privacy claim; (4) granted summary judgment in favor of all defendants on claims of liability or vicarious liability, including negligent infliction of emotional distress; (5) granted summary judgment on the negligent-training claim; and (6) denied summary judgment to Anoka County and Sheriff Podany on the negligent-supervision and negligent-retention claims. The district court further stated that any claims against individual defendants subject to a six-year statute of limitations, with the exception of negligent infliction of emotional distress, remained.

Appellants Anoka County and Sheriff Podany challenge the district court's denial of summary judgment on the negligent-supervision and negligent-retention claims, asserting that the claims are barred by statutory immunity. Appellants also challenge the district court's determination that claims subject to a six-year statute of limitation remain, on the ground that respondent has not properly pleaded such a claim and, further, any such claims would be barred by official immunity and vicarious official immunity. Respondent filed a notice of review, challenging the district court's order dismissing most of her claims.

Because we conclude that the district court did not err by dismissing the majority of the respondent's claims, we affirm in part. But because we conclude that the appellants are entitled to statutory immunity on the negligent-supervision and negligent-retention claims, we reverse the district court's denial of summary judgment on those claims.

FACTS

The Anoka County Task Force and the Anoka County Sheriff's Department executed a search warrant on respondent Jodi Hawkinson's home on October 29, 2001. The officers had a knock-and-announce warrant, and they knocked and announced their presence several times. Respondent was slow to answer the door, but eventually opened the door for the officers. The officers told her to get down on the floor and, again, respondent was slow to comply. According to the officers, respondent began screaming incoherently, causing the officers to be concerned that she might be warning other occupants in the home. The officers then forced respondent to the ground and handcuffed her.

Officers quickly moved respondent from the floor to a bench near the front door and eventually to a chair. Respondent has health issues, and as a result of not having access to her medication, she had a seizure. Because the officers were concerned for respondent's health, they called an ambulance. When the ambulance arrived, the paramedics examined respondent and offered to transport her to the hospital for treatment. Respondent refused, choosing instead to remain at her home. As part of her claim, respondent alleges that the officers made derogatory comments to her and kept her handcuffed to a chair for seven hours while they searched her home.

As a result of the search, the officers found items that were consistent with the manufacture of methamphetamine and a powdery substance that later tested positive for methamphetamine. Respondent denied involvement with any drug-related activity, and she was not arrested or taken into custody.

Respondent filed a lawsuit in federal district court, alleging assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligent supervision, negligent training, negligent retention, and invasion of privacy, as well as other federal claims. In that suit, respondent named Anoka County, the Task Force, Anoka County Sheriff Larry Podany, and a number of officers and detectives designated as Jane Doe and Richard Roe, as defendants. Appellants moved for summary judgment. The federal district court dismissed the federal claims and declined to exercise supplemental jurisdiction over the state-law claims, dismissing them without prejudice.

Respondent then commenced a state-court action, alleging the state-law claims contained in her federal suit against the identical parties named in the federal complaint. Respondent later filed an amended summons and complaint, naming individual officers and detectives — Detectives Wendy Lehner, Stephen Johnson, Ted Strauch, Jim Hopp, Dan Douglas, Sergeant Mike Dunkley, and Deputies Mark Peterson and Michael Dold (individual defendants) — in addition to Jane Doe and Richard Roe.

Appellants again moved for summary judgment. The district court granted appellants' motion as to the claims of assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, invasion of privacy, and negligent training. The district court denied summary judgment as to the claims of negligent supervision and negligent retention against Anoka County and Sheriff Podany. This appeal follows.

DECISION

"On appeal from summary judgment we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court erred in [its] application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). A "reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I. John Doe pleading and two-year statute of limitations

Respondent contends that her amended complaint, delivered to the sheriff for service after the expiration of the statute of limitations, replacing Jane Doe and Richard Roe with the named individual defendants relates back to the time of the filing of the original complaint. Appellants argue, and the district court found, that the amended complaint does not relate back because the rule permitting John Doe pleading does not toll the statute of limitations. As a result, the district court determined that respondent's claims against those individuals are barred because she failed to amend the complaint within the statute of limitations.

Minn. R. Civ. P. 9.08 provides that

[w]hen a party is ignorant of the name of an opposing party and so alleges in the party's pleading, the opposing party may be designated by any name and when that opposing party's true name is discovered the process and all pleadings and proceedings in the action may be amended by substituting the true name.

The supreme court has stated that the rule "serve[s] a modest purpose" because the designation of an unknown John Doe puts the named parties "on notice that the complaint will be amended." Leaon v. Washington County, 397 N.W.2d 867, 871 (Minn. 1986) (quotation omitted). But the supreme court held that "[r]ule 9.08 does not toll the statute of limitations[, it] says nothing about any `relation back' effect[, and it] does not entitle the amended pleadings to relate back as to the action against that individual." Id. (quotation omitted).

Here, the federal district court dismissed respondent's federal claims and declined to exercise supplemental jurisdiction over her state claims. As a result, the statute of limitations was tolled for an additional 30 days, permitting respondent to file suit in state court. 28 U.S.C. § 1367(d) (2000). Because the federal district court dismissed respondent's claims on October 25, 2004, the 30-day period expired on November 24, 2004. Rule 3.01(c) of the Minnesota Rules of Civil Procedure provides that:

A civil action is commenced against each defendant:

. . . .

(c) when the summons is delivered to the sheriff in the county where the defendant resides for service; but such delivery shall be ineffectual unless within 60 days thereafter the summons is actually served on that defendant or the first publication thereof is made.

Thus, even if the grace period allowed her to name the individual defendants in the state-court action, she did not meet the 30-day deadline.

Even if a plaintiff does not amend her complaint within the statute of limitations, she may meet the requirements of Minn. R. Civ. P. 15.03, which provides for the relation-back of pleadings. Minn. R. Civ. P. 15.03 states:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party, the party to be brought in by amendment (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against that party.

Put differently, the rule has four components:

(1) the claim against the intended defendant arises out of the conduct or occurrence alleged in the original pleading; (2) the party to be added has received such notice of the institution of the action that he will not be prejudiced; (3) the intended party knows or should have known the action against the wrong party was a mistake and that the action was meant to be brought against him; and (4) such notice and knowledge [were] received by the intended defendant within the period provided by law for commencing the action against him.

Carlson v. Hennepin County, 479 N.W.2d 50, 54 (Minn. 1992) (quotation omitted). Whether a party has satisfied these criteria is a matter of law, which we review de novo. Id. at 53.

First, it is undisputed that the claims against the individual defendants arise out of the same occurrence as the claims contained in the original pleading. Second, at least some of the individual defendants were aware of the federal suit, inasmuch as Wendy Lehner and Gary Patterson filed affidavits in that action. But it is difficult to conclude on this record that the individual defendants knew or should have known that the Jane Doe and Richard Roe named in the pleadings was a mistake and was intended to name them personally. Jane Doe could have been named in lieu of any number of people, not necessarily all of the officers involved in the execution of the search warrant. Further, the individual defendants were not made aware that they were Jane Doe and Richard Roe until after the period provided by law had expired, whether that period is the two-year statute of limitations or the 30-day grace period.

While appellant was initially unaware of the individual defendants' identities when she brought suit in federal court, respondent was aware of their identities as of December 2, 2003, as evidenced by the fact that she sought to amend her federal complaint to reflect their identities. Minn. R. Civ. P. 9.08 allows for John Doe pleadings only when the party's identity is unknown and only until his identity is ascertained. Respondent knew the individual defendants' identities at the time she commenced her original action in state court. She could have named them in her complaint delivered to the sheriff on November 24, 2004, and served on November 30, 2004, rather than amending the summons and complaint six days later, after the grace period had expired. Therefore, the district court did not err by finding that respondent's claims against the individual officers are time-barred and that the amended complaint does not relate back.

II. Statutory immunity

"[M]unicipalities are generally liable for the torts of their employees if the tort is committed within the scope of employment." Schroeder v. St. Louis County, 708 N.W.2d 497, 503 (Minn. 2006); see Minn. Stat. § 466.02 (2004). But there are exceptions under which municipalities are immune from suit. Minn. Stat. § 466.03 (2004). One of those exceptions, when a municipality is entitled to statutory discretionary immunity, commonly referred to as statutory immunity, occurs when a "claim [is] based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." Id., subd. 6. Based on the separation-of-powers doctrine, the purpose of statutory immunity is "to protect the legislative and executive branches from judicial second-guessing of certain policy-making activities through the medium of tort actions." Schroeder, 708 N.W.2d at 503. Thus, "[w]hether governmental action is protected by statutory immunity is a question of law, which this court reviews de novo." Conlin v. City of St. Paul, 605 N.W.2d 396, 400 (Minn. 2000). We interpret the discretionary-function exception narrowly. Id.

"Discretionary immunity . . . does not protect all acts of judgment by government agents." Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994). "In defining what is a discretionary act, [courts] have made a general distinction between operational and planning decisions." Id. (quotations omitted). Planning-level functions "require evaluating such factors as the financial, political, economic, and social effects of a given plan." Unzen v. City of Duluth, 683 N.W.2d 875, 882 (Minn.App. 2004), review denied (Minn. Oct. 27, 2004). "Operational-level decisions, in contrast, are those actions involving the ordinary, day-to-day operations of the government." Id. Only planning-level functions are protected by statutory immunity. Id. A court's first step in determining whether conduct is protected by statutory immunity is to "identify the conduct at issue." Conlin, 605 N.W.2d at 400.

Here, respondent alleged that Anoka County and Sheriff Podany failed to adequately train, supervise, investigate, discipline, and terminate their employees with respect to the use of excessive force in the execution of the search warrant. The district court dismissed respondent's negligent-training claim on the basis of statutory immunity but permitted the claims of negligent supervision and negligent retention against Anoka County and Sheriff Podany to stand. Appellants contend that this was error because there is clear precedent to the contrary. We agree.

Although the general rule is that the government has the burden to prove that it engaged in planning or policy-making activities that involved balancing social, political, or economic considerations in order to be entitled to immunity, Conlin, 605 N.W.2d at 402, prior caselaw regarding these specific claims — negligent supervision and negligent retention — establishes that the government entity is entitled to immunity as a matter of law. This court has previously stated that "[t]he claims for negligent supervision . . . and retention . . . are based on policy level activity." Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 320 (Minn.App. 1997), aff'd in part on other grounds, 582 N.W.2d 216 (Minn. July 30, 1998); see also Oslin, 543 N.W.2d at 416 (determining that decisions on supervision and retention "were necessarily entwined in a layer of policy-making that exceeded the mere application of rules to facts"). Thus, "decisions involving supervision and retention of employees are discretionary acts entitled to statutory immunity." Gleason, 563 N.W.2d at 320.

We therefore conclude that the district court erred by not dismissing these claims.

III. Official immunity

The district court found that the officers' actions in executing the search warrant required the exercise of discretionary acts that are protected by official immunity. "The applicability of immunity is a question of law, which this court reviews de novo." Meier v. City of Columbia Heights, 686 N.W.2d 858, 863 (Minn.App. 2004), review denied (Minn. Dec. 14, 2004).

The purpose of official immunity is to "protect public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties." Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988). The first step in determining whether city employees are protected by official immunity is to ascertain whether they were performing a discretionary or ministerial act. See Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998) (noting that the critical issue in official-immunity claims is whether the conduct is discretionary or ministerial).

Ministerial functions, which are unprotected, are acts that are "absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts." Watson v. Metro. Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996) (quotation omitted). In other words, "the duty must dictate the scope of the employee's conduct." Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 659 (Minn. 2004). "[O]fficial immunity does not protect officials when they are charged with the execution of ministerial, rather than discretionary, functions, that is, where `independent action' is neither required nor desired." Id. at 655. Rather, official immunity protects officials "charged by law with duties which call for the exercise of [their] judgment or discretion." Id. (quotation omitted).

If an act is discretionary, official immunity attaches unless the conduct is malicious or willful. See Bailey v. City of St. Paul, 678 N.W.2d 697, 700-01 (Minn.App. 2004) (noting that public officials performing discretionary actions in the course of their official duties are protected from liability by official immunity unless those acts are malicious or willful), review denied (Minn. July 20, 2004). It is generally accepted that "police charged with the duty to prevent crime and enforce the laws are not purely ministerial officers, in that many of their duties are of an executive character involving the exercise of discretion." Elwood, 423 N.W.2d at 678 (quotation omitted); see also Kelly v. City of Minneapolis, 598 N.W.2d 657, 664 (Minn. 1999) (stating that police duties are broadly construed as discretionary). Police officers must be permitted wide latitude when it comes to carrying out their duties in order to avoid chilling police action. Elwood, 423 N.W.2d at 678.

In Leonzal v. Grogan, this court was faced with the issue of police response to a 911 call and whether the police officers were entitled to official immunity. 516 N.W.2d 210, 212 (Minn.App. 1994), review denied (Minn. July 27, 1994). Noting that officers, responding to threatening situations "exercise significant independent judgment and discretion," we recognized the many factors those officers must consider: "Is the person dangerous? Are the alleged threats real and serious? What is the mental and physical state of the person asking for help? To what extent may the situation be dangerous for other persons?" Id.

Those questions undoubtedly arose in the minds of the officers involved in the search here. The district court stated it well when it said that

[t]he manufacture of methamphetamine involves the use of dangerous chemicals and entry into a suspected methamphetamine house requires officers to act quickly without second-guessing in order to protect themselves as well as the occupants of the home. The officers were working off of limited information regarding the number of occupants in the home, whether there were weapons in the home, and the occupant's propensity for violence. Clearly, such decision making requires the exercise of professional judgment.

We agree with the district court that the officers' actions were discretionary and were not "absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts." Watson, 553 N.W.2d at 414 (quotation omitted).

But the inquiry does not end there. The officers are not entitled to official immunity if they committed a willful or malicious wrong. Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). Malice "means nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right." Id. (quotation omitted).

The district court stated that respondent did not demonstrate that the officers acted in a willful or malicious manner when executing the search warrant. First, they had legal justification for entering respondent's home — a search warrant. Second, the officers are allowed to detain, by handcuffing, individuals present on the premises that they were searching. Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 2595-96 (1981). Respondent contends that the individual defendants handcuffed her to a chair for seven hours, which she argues was malicious. But the district court correctly concluded that that allegation is not supported by the record.

In addition, respondent claims it was willful and malicious for the officers to have forced her to the ground, handcuffed her, and to have made her sit on a bench, while ignoring her medical needs for an extended period of time. But in direct response to respondent's medical condition, the officers called an ambulance and released her from the handcuffs so that she could walk to the ambulance. The paramedics then examined her, and she declined their offer of medical treatment. There is no evidence in the record that respondent was handcuffed for seven hours or that the officers acted without legal reasonableness in violating a known right of respondent. As the result, the district court did not clearly err by finding that the officers are entitled to official immunity for their actions in executing the search warrant.

Next we must determine whether Anoka County and Sheriff Podany are entitled to vicarious official immunity based on their employees' official immunity. "[V]icarious official immunity protects the government entity from suit based on the official immunity of its employee." Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998). "Generally, if the employee is found to have immunity, the claim against the municipal employer has been dismissed without any explanation." Pletan v. Gaines, 494 N.W.2d 38, 42 (Minn. 1992). Moreover, courts may grant vicarious official immunity to a municipality regardless of whether the employee was named as a party to the suit, because to hold otherwise "would allow plaintiffs to defeat immunity by declining to name the official as a defendant." Wiederholt, 581 N.W.2d at 317.

Courts do not automatically grant vicarious official immunity whenever an employee's conduct is protected by official immunity. Meier, 686 N.W.2d at 866. But we will grant vicarious official immunity "when failure to grant it would focus stifling attention on an official's performance to the serious detriment of that performance." Schroeder, 708 N.W.2d at 508 (quotations omitted). Because the failure to grant vicarious official immunity here would chill police action during the execution of search warrants and other emergency situations, we conclude that appellants are entitled to vicarious official immunity.

IV. Invasion of privacy

Respondent contends that the district court erred by finding that she did not present a sufficient legal and factual basis for her claim of invasion of privacy to survive summary judgment. The district court found that the officers did not invade respondent's privacy because they legally entered her home pursuant to the search warrant. Respondent asserts that the district court erred in this finding for two reasons: first, the district court merely relied on the federal district court's findings regarding the validity of the search warrant without engaging in its own analysis and, second, that the officers violated the terms of the search warrant.

There is no evidence in the record that the district court merely relied on the federal district court's conclusions without conducting its own analysis. Although the district court cited the federal district court's memorandum, it neither implied that the issue was already decided nor did it give preclusive effect to the federal district court's decision. The district court stated that because the officers "were lawfully on the premises under a valid search warrant, any invasion of privacy was justified."

Second, as previously noted, police officers have limited authority to detain the occupants of premises being searched pursuant to a search warrant. Summers, 452 U.S. at 705, 101 S. Ct. at 2595-96. This authority is especially important during drug-related cases due to the strong possibility of flight, violence, or destruction of evidence. Id. at 702, 101 S. Ct. at 2594.

Here, the officers were authorized to search for evidence of a methamphetamine lab and methamphetamine, among other things. There is evidence in the record that the officers knocked and announced their presence several times before respondent opened the door. After opening the door, respondent was slow to comply with the officers' directives and was screaming and yelling. Because the officers could not understand what respondent was saying, the officers did not know whether respondent was attempting to signal other individuals on the premises. Because the officers knocked and announced their presence and, under Summers, they were allowed to detain individuals located on the premises during the search, the district court did not clearly err by dismissing respondent's claim of invasion of privacy.

V. Negligent infliction of emotional distress

A plaintiff wishing to recover for negligent infliction of emotional distress must prove the four elements of a negligence claim — duty, breach, injury, and causation — as well as three additional elements specific to a claim of negligent infliction of emotional distress: presence in the zone of danger of physical impact, reasonable fear for the plaintiff's safety, and severe emotional distress "with attendant physical manifestations." Engler v. Ill. Farmers Ins. Co., 706 N.W.2d 764, 767 (Minn. 2005) (quotation omitted). The physical manifestation requirement "is designed to assure the genuineness of the emotional distress." Silberstein v. Cordie, 474 N.W.2d 850 (Minn.App. 1991). But under an exception to the general rule, "[a] plaintiff may recover damages for mental anguish or suffering for a direct invasion of his rights, such as defamation, malicious prosecution, or other willful, wanton or malicious conduct." Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902, 907 (Minn.App. 1987), review denied (Minn. Nov. 13, 1987).

The district court concluded that summary judgment was appropriate on respondent's negligent-infliction-of-emotional-distress claim because she did not suffer physical injuries arising from the execution of the search warrant. Respondent argues that the mental-anguish exception applies because it was a violation of her rights to handcuff her to a chair for seven hours. Respondent relies on the fact that an ambulance was called to examine her as evidence that the officers acted with willful, wanton, or malicious conduct.

But we conclude that respondent's argument that the officers acted maliciously is without merit, for, as analyzed above, the officers were justified in detaining and handcuffing her as they conducted a search of her house, and there is no evidence that she was handcuffed to a chair for seven hours. Therefore, as a matter of law, respondent's negligent-infliction-of-emotional-distress claim fails, and the district court did not err by dismissing it.

VI. Additional claims

Appellants argue that the district court erred by including a sentence in the section of its memorandum entitled "Remaining Claims" that states: "The following claims of the [respondent] remain:. . . . b. Any claims against the individual [appellants] subject to a six-year statute of limitations, excluding any claim for negligent infliction of emotional distress." Appellants contend that because the district court determined the fate of each of respondent's claims, this statement is erroneous because there are no remaining claims. Because we are affirming the district court's dismissal of six of respondent's eight claims and we are reversing the portion of the district court's order that allowed the other two claims to remain, all of respondent's claims have now been disposed of. There are no remaining claims that have been asserted in this matter.

Affirmed in part and reversed in part.