United States District Court, D. South Dakota, Southern Division
E. SCHREIER, UNITED STATES DISTRICT JUDGE
Eric Stormo, filed this pro se lawsuit naming the City of
Sioux Falls, R. Shawn Tornow, Dave Munson, Mike Huether, Pat
Kneip, Doug Barthel, and John Doe as defendants. Defendants
now move for summary judgment. Docket 186. Stormo filed a
motion for summary judgment and numerous other motions. For
the following reasons, defendants' motion for summary
judgment is granted in part and denied in part, Stormo's
motions to compel are denied in part and granted in part, and
the court grants defendants leave to respond to Stormo's
judgment is appropriate if the movant “shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party can meet this burden by
presenting evidence that there is no dispute of material fact
or by showing that the nonmoving party has not presented
evidence to support an element of its case on which it bears
the ultimate burden of proof. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
party opposing a properly supported motion for summary
judgment may not rest on mere allegations or denials, but
must set forth specific facts in the record showing that
there is a genuine issue for trial.” Denn v. CSL
Plasma, Inc., 816 F.3d 1027, 1032 (8th Cir. 2016)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986)). For purposes of summary judgment, the
facts, and inferences drawn from those facts, are
“viewed in the light most favorable to the party
opposing the motion.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting
United States v. Diebold, Inc., 369 U.S. 654, 655
Defendants' Motion for Summary Judgment
Illegal Search and Seizure Claim
contend that they are entitled to summary judgment based on
qualified immunity because the actions of the defendants
involved in the removal of Stormo's lift were objectively
reasonable. Docket 188 at 5. Section 1983 provides a cause of
action against any “person who, under the color of any
statute, ordinance, regulation, custom, or usage, of any
state” causes the deprivation of a right protected by
federal law or the United States Constitution. 42 U.S.C.
§ 1983. The doctrine of qualified immunity, however,
generally shields “ ‘[G]overnment officials
performing discretionary functions . . . from liability for
civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.' ”
Smith v. City of Minneapolis, 754 F.3d 541, 545 (8th
Cir. 2014) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).
overcome a qualified immunity defense at the summary judgment
stage, a plaintiff must show: “(1) the facts, viewed in
the light most favorable to the plaintiff, demonstrate the
deprivation of a constitutional or statutory right; and (2)
the right was clearly established at the time of the
deprivation.” Howard v. Kan. City Police
Dep't, 570 F.3d 984, 988 (8th Cir. 2009). The court
may analyze these two factors in either order. Hutson v.
Walker, 688 F.3d 477, 483 (8th Cir. 2012) (citing
Pearson v. Callahan, 555 U.S. 223, 236 (2009)). But
“[t]o deny the officers qualified immunity, [the court]
must resolve both questions in [the plaintiff's]
favor.” Hawkins v. Gage County, 759 F.3d 951,
956 (8th Cir. 2014).
argue that they are entitled to summary judgment on
Stormo's Fourth Amendment claim. The Fourth Amendment
provides that the “right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated.” U.S. Const. amend. IV. “ ‘A
seizure of property occurs when there is some meaningful
interference with a person's possessory interests in that
property.' ” Andrews v. City of W. Branch,
454 F.3d 914, 918 (8th Cir. 2006) (quoting Lesher v.
Reed, 12 F.3d 148, 150 (8th Cir. 1994)).
reasonableness standard of the Fourth Amendment applies to
any seizure by the government in any context.”
Coleman v. Watt, 40 F.3d 255, 262 (8th Cir. 1994).
Because Stormo's lift was undoubtedly
“seized” for purposes of the Fourth Amendment,
“[t]he question is whether there was anything
unreasonable about the seizure which would place it among
those prohibited by the Fourth Amendment.” Johnson
v. Outboard Marine Corp., 172 F.3d 531, 536 (8th Cir.
1999). The reasonableness inquiry requires a “careful
balancing of governmental and private interests.”
Soldal v. Cook County, 506 U.S. 56, 71 (1992)
(quoting New Jersey v. T.L.O., 469 U.S. 325, 341
defendants allege that they were acting under a valid court
order: the default judgment obtained in state court. The
United States Supreme Court has stated in dicta that if
“officers were acting pursuant to a court order, . . .
a showing of unreasonableness on these facts would be a
laborious task indeed.” Id.
Johnson, the Eighth Circuit Court of Appeals upheld
as constitutional the seizure of a boat and a trailer by a
deputy sheriff pursuant to “a valid writ of execution
directing him to levy on personal property of a debtor
corporation at the residence address of the corporation's
secretary[.]” Johnson, 172 F.3d at 533. The
deputy was told by plaintiff and his attorney that he could
not levy on the boat and trailer, but he did it anyway.
Id. at 534. A week after the seizure, plaintiffs
filed a Notice of Exemptions to the execution, and the court
ordered the boat and trailer released to defendants.
Court of Appeals upheld the trial court's finding that
the deputy's actions were “objectively reasonable
under the facts.” Id. at 536. The court noted
that the deputy “execut[ed] a valid writ on property
located at the given address, property which he had reason to
believe was the same type of property handled by the debtor
corporation[, ]” he was told by his superior that
plaintiff had no protection from the execution to satisfy the
judgment, there was reason to believe that plaintiff was
going to hide or move the boat soon, plaintiff could not
prove he owned the boat, and the boat was levied upon during
the day in a driveway. As a result, the Court found that the
privacy concerns of the Fourth Amendment were not raised.
Id. at 536-37.
argued that the seizure was unreasonable because the deputy
was wrong to believe that he could levy on the boat and
trailer. Id. at 537. The court rejected this
argument, holding that the mistake itself did not make the
seizure unreasonable, and the deputy was not obliged to
follow plaintiff's attorney's legal advice.
Therefore, the court found the seizure reasonable.
Audio Odyssey, Ltd. v. Brenton First Nat'l Bank,
245 F.3d 721, 736 (8th Cir. 2001), reconsideration en
banc granted, judgment vacated (July 30, 2001),
opinion reinstated sub nom. Audio Odyssey v. Brenton
First Nat'l Bank, 286 F.3d 498 (8th Cir. 2002), the
Court of Appeals explained that Johnson “did
not purport to immunize all errant seizures” but held
that “an erroneous seizure of personal property is not
necessarily an ‘unreasonable' one, and that the
officer in [Johnson] had a reasonable basis for
seizing a boat and trailer that fell outside of a writ of
execution.” Id. The court explained that the
real question was “whether the officer's mistake
[was] objectively reasonable.” Id.
argues that the default judgment obtained by Tornow was
invalid. In the attachments to his motion for summary
judgment, Stormo provided copies of the motions filed in the
state court case that were served on Tornow in his capacity
as a deputy city attorney prior to the City moving for
default judgment and prior to the seizure of the lift. Docket
194-4; Docket 194-5. The City's motion for default
judgment was based on the representation Tornow made in his
affidavit that Stormo had “made no responsive answer,
and/or appearance and is now therefore wholly in
default[.]” Docket 194-6 at 3.
moved to set aside the default judgment on March 24, 2009,
ten days before the lift was removed by defendants on April
3, 2009. Docket 194-3. Stormo's motions were found by the
state court to constitute an appearance, docket 194-6 at 4,
and the default judgment was vacated by the state court on
September 10, 2009. Docket 194-6. Stormo has provided
evidence to create a question of fact as to whether
Tornow's affidavit in support of the default judgment was
unreasonably mistaken, whether the default judgment was
invalid, and whether the seizure was objectively reasonable.
Stormo has also provided evidence that suggests Tornow was
aware of the invalidity of the default judgment because
Tornow had been served with Stormo's motion to set aside
the default judgment before the lift was removed by
defendants. Stormo also alleges that Tornow told city
employees that the default judgment was valid and directed
them to seize Stormo's lift. Docket 34 at 15. Because
questions of material fact exist, the motion for summary
judgment on Stormo's Fourth Amendment claim is denied as
Pat Kneip and John Does
alleges that Pat Kneip and John Doe city employees violated
his rights under the Fourth Amendment by seizing his lift.
Pat Kneip and other city employees' actions were
objectively reasonable under the circumstances. In
Johnson, 172 F.3d at 537, the Eighth Circuit
rejected the argument that a deputy's seizure of property
violated the Fourth Amendment because his belief that he
could levy plaintiff's property was incorrect.
raises the same argument here. He has not put forth evidence
showing that Kneip or the Does involved in the seizure of the
lift knew any of the facts discussed above about the
invalidity of the default judgment. According to Stormo's
amended complaint, these defendants were directed by Tornow.
Therefore, their actions were objectively reasonable, and
Kneip and John Does did not violate Stormo's Fourth
Amendment rights. Summary judgment is granted in favor of
Kneip and John Does on this claim.
Defendants Munson, Huether, and Barthel
named Munson and Huether as defendants in their capacities as
elected city officials. Docket 34 at 5. He named Barthel as a
defendant in his capacity as Sioux Falls Chief of Police.
Id. Stormo claims that these defendants are liable
for his injuries because of their alleged acts and omissions
as supervisors. Id. at 51-60.
liability is inapplicable to § 1983 suits[.]”
Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010).
“[E]ach Government official, his or her title
notwithstanding, is only liable for his or her own
misconduct.” Id. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009)). Stormo has not set
forth specific facts in the record showing that Munson,
Huether, or Barthel directly participated in the violations
When a supervising official who had no direct participation
in an alleged constitutional violation is sued for failure to
train or supervise the offending actor, the supervisor is
entitled to qualified immunity unless plaintiff proves that
the supervisor (1) received notice of a pattern of
unconstitutional acts committed by a subordinate, and (2) was
deliberately indifferent to or authorized those acts.
S.M. v. Krigbaum, 808 F.3d 335, 340 (8th Cir. 2015)
(citing Livers v. Schenck, 700 F.3d 340, 355 (8th
has not set forth specific facts in the record showing that
Munson or Huether were deliberately indifferent to or
authorized Tornow's actions as discussed above. Merely
being Tornow's supervisor does not make them liable. As
Chief of Police, Barthel did not supervise Tornow, and the
court has granted summary judgment to the defendants he
supervised on Stormo's Fourth Amendment claims.
Therefore, summary judgment is granted to Munson, Huether,
City of Sioux Falls
claims that the City of Sioux Falls is liable for the alleged
violation of his Fourth Amendment rights. He puts forth four
grounds on which to base this liability. He argues the City
created a custom that it was acceptable to violate
constitutional rights. Docket 34 at 65. He argues that Tornow
was a policymaker for the City. Id. at 63. He argues
that the City was deliberately indifferent to the risk of a
constitutional violation. Id. at 68. Finally, he
argues that the City failed to train its subordinates.
Id. at 67-68.
municipality may be liable under § 1983 “if the
governmental body itself ‘subjects' a person to a
deprivation of rights or ‘causes' a person
‘to be subjected' to such deprivation.”
Connick v. Thompson, 563 U.S. 51, 60
(2011).Municipalities, however, “are
responsible only for ‘their own illegal acts.'
” Id. (quoting Pembaur v. Cincinnati,
475 U.S. 469, 479 (1986)).
municipality cannot be held liable solely because of the acts
of its employees, but “the municipality may be held
liable ‘when execution of a government's policy or
custom ... inflicts the injury.' ” Los Angeles
County v. Humphries, 562 U.S. 29, 36 (2010) (quoting
Monell, 436 U.S. at 691, 694).
argues that the City is liable because his constitutional
rights were violated by its policies. Docket 34 at 65.
“Plaintiffs who seek to impose liability on local
governments under § 1983 must prove that ‘action
pursuant to official municipal policy' caused their
injury.” Connick, 563 U.S. at 60 (quoting
Monell v. N.Y. City Dept. of Soc. Servs., 436 U.S.
658, 692 (1978)). “Official municipal policy includes
the decisions of a government's lawmakers, the acts of
its policymaking officials, and practices so persistent and
widespread as to practically have the force of law.”
Id. at 61. “These are ‘action[s] for
which the municipality is actually responsible.' ”
Id. (quoting Pembaur, 475 U.S. at 479-80).
“Official municipal policy includes the decisions of a
government's lawmakers, the acts of its policymaking
officials, and practices so persistent and widespread as to
practically have the force of law.” Id.
“A ‘policy' is a ‘deliberate choice to
follow a course of action ... made from among various
alternatives by the official or officials responsible [under
state law] for establishing final policy with respect to the
subject matter in question.' ” Russell v.
Hennepin County, 420 F.3d 841, 847 (8th Cir. 2005)
(quoting Hayes v. Faulkner County, Ark., 388 F.3d
669, 674 (8th Cir. 2004)).
alleges that Tornow is a policymaker, and Tornow allegedly
violated his Fourth Amendment rights by his actions directing
others to unlawfully seize his lift. Docket 34 at 63.
“Although rare, a public official's single incident
of unconstitutional activity can establish the requisite
policy if the decision is ‘taken by the highest
officials responsible for setting policy in that area of the
government's business.' ” Rynders v.
Williams, 650 F.3d 1188, 1195 (8th Cir. 2011) (quoting
City of St. Louis v. Praprotnik, 485 U.S. 112, 123
Pembaur v. City of Cincinnati, 475 U.S. 469 (1986),
the United States Supreme Court discussed whether and in what
circumstances a single decision by a municipal policymaker
can satisfy the Monell requirements for municipal
liability. The facts of Pembaur were similar to
those in this case. In Pembaur, a county prosecutor
ordered sheriff's deputies to chop down the door of
Pembaur's clinic in order to serve two warrants on people
inside the clinic. Id. at 472-73. Pembaur filed a
§ 1983 case arguing that his Fourth Amendment rights had
been violated because the deputies did not have a search
warrant. Id. at 474. The Supreme Court found that
the county prosecutor's direction to the sheriff's
deputies to break into the clinic constituted official county
policy because state law gave the prosecutor final
policymaking authority over law enforcement matters.
Id. at 485. Pembaur would control this case
if Tornow was in the same position as the county prosecutor
issue of whether Tornow exercised final policymaking
authority is a question of state law. Atkinson v. City of
Mountain View, 709 F.3d 1201, 1217 (8th Cir. 2013)
(citation omitted). Stormo's complaint alleges that
Tornow was an assistant city attorney “acting under the
direction and control of the Mayor and City Attorney of the
City of Sioux Falls[.]” Docket 34 at 5. Tornow's
title alone indicates that he was not a final policymaker.
While Tornow may have had unchecked discretion to enforce
policies, i.e. to seek a default judgment and direct
city employees to seize Stormo's lift, there is no
evidence in the record showing that Tornow had the authority
to create the policies. See Davison v. City of
Minneapolis, 490 F.3d 648, 660 (8th Cir. 2007)
(explaining that “[t]he Supreme Court has distinguished
final policymaking authority from final decisionmaking
authority”); Bernini v. City of St. Paul, 665
F.3d 997, 1008 (8th Cir. 2012) (finding defendants actions
insufficient to impose liability on the city because
plaintiffs failed to identify a state or municipal law
establishing that defendants had final policymaking
authority). Thus, the court finds as a matter of law that
Tornow was not a policymaker.
Huether, Munson, and Barthel are all arguably policymakers,
Stormo has not identified any evidence to show they made a
deliberate choice to follow a course of action made from
various alternatives with respect to the seizure of the lift.
As a result, Stormo has not shown establishment of an
official city policy that violated his constitutional rights.
also argues that defendants were deliberately indifferent to
the obvious consequences of their policy, even if the policy
was facially constitutional. Docket 34 at 68.
Where a policy is constitutional on its face, but it is
asserted that a municipality should have done more to prevent
constitutional violations by its employees, a plaintiff must
establish the existence of a ‘policy' by
demonstrating that the inadequacies were a product of
deliberate or conscious choice by policymakers. The standard
of fault in that situation is ‘deliberate
indifference' to constitutional rights.
Szabla v. City of Brooklyn Park, 486 F.3d 385, 396
(8th Cir. 2007) (quoting City of Canton v.
Harris, 489 U.S. 378, 388 (1989)).
policy is deliberately indifferent to a person's
constitutional rights when its inadequacy is both obvious and
likely to result in the alleged deprivation of constitutional
rights.” Russell v. Hennepin County, 420 F.3d
841, 847 (8th Cir. 2005) (citing Spencer v. Knapheide
Truck Equip. Co., 183 F.3d 902, 906 (8th Cir. 1999)).
The deliberate indifference standard is a
“rigorous” standard of fault. Atkinson,
709 F.3d at 1216. Stormo does not show that defendants were
deliberately indifferent to the consequences of their policy.
The record shows, at most, a single non-policymaker, Tornow,
arguably violating Stormo's constitutional rights. This
does not show deliberate indifference on the part of any of
the other defendants and cannot be the basis for the