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Stormo v. City of Sioux Falls

United States District Court, D. South Dakota, Southern Division

December 21, 2016

ERIC STORMO, Plaintiff,




         Plaintiff, 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 remaining motions.


         Summary 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).

         “A 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 (1962)).


         I. Defendants' Motion for Summary Judgment

         A. Illegal Search and Seizure Claim

         Defendants 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)).

         To 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).

         Defendants 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)).

         “The 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 (1985)).

         Here, 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.

         In 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. Id.

         The 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.

         Plaintiff 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.

         In 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.

         1. Tornow

         Stormo 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.

         Stormo 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 to Tornow.

         2. Pat Kneip and John Does

          Stormo 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.

         Stormo 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.

         3. Defendants Munson, Huether, and Barthel

         Stormo 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.

         “[V]icarious 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 he alleges.

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 Cir. 2012)).

         Stormo 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, and Barthel.

         4. City of Sioux Falls

         Stormo 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.

         A 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).[1]Municipalities, however, “are responsible only for ‘their own illegal acts.' ” Id. (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)).

         A 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).

         a. Policy

         Stormo 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)).

         Stormo 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 (1988)).

         In 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 in Pembaur.

         The 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.

         While 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.

         Stormo 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)).

         “A 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 City's liability.

         b. ...

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