CASE 0:14-cv-02970-DWF-LIB Document 107 Filed 03/09/15 Page 1 of 57 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Timothy Charles Holmseth, Court File No. 14-cv-2970 (DWF/LIB) Plaintiff, v. REPORT AND RECOMMENDATION City of East Grand Forks, et al., Defendants. This matter comes before the undersigned United States Magistrate Judge upon Defendants City of East Grand Forks (“Defendant City”), James Richter, Michael Hedlund, David Murphy, Rodney Hajicek, and Aeisso Schrage’s Motion to Dismiss and/or for Summary Judgment, [Docket No. 13]; Defendants Barb Erdman and Michael Norland’s Motion to Dismiss, [Docket No. 23]; Defendant Ronald Galstad’s Motion to Dismiss, [Docket No. 32], and Amended Motion to Dismiss and/or for Summary Judgment, [Docket No. 54]; Defendant Michael LaCoursiere’s Motion to Dismiss, [Docket No. 61]; Plaintiff’s Motion for Injunctive Relief, [Docket No. 72]; and Defendant Jeanette Ringuette’s Motion to Dismiss and/or for Summary Judgment, [Docket No. 84]. This case has been referred to the undersigned Magistrate Judge for a report and recommendation, in accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1. The Court held motions hearings on December 17, 2014 and February 11, 2015. For the reasons discussed herein, the Court recommends that Defendants City, Richter, Hedlund, Murphy, Hajicek, and Schrage’s Motion to Dismiss and/or for Summary Judgment, [Docket No. 13], be GRANTED; Defendants Erdman and Norland’s Motion to Dismiss, [Docket No. 23], be GRANTED; Defendant Galstad’s Amended Motion to Dismiss and/or for Summary Judgment, [Docket No. 54], be GRANTED; Defendant Galstad’s Motion to Dismiss, CASE 0:14-cv-02970-DWF-LIB Document 107 Filed 03/09/15 Page 2 of 57 [Docket No. 32] be DENIED as moot; Defendant LaCoursiere’s Motion to Dismiss, [Docket No. 61], be GRANTED; Plaintiff’s Motion for Injunctive Relief, [Docket No. 72] be DENIED; and Defendant Ringuette’s Motion to Dismiss and/or for Summary Judgment, [Docket No. 84], be GRANTED. I. BACKGROUND This 42 U.S.C. § 1983 case arises from three separate courses of events. The first course of events concerns the actions of members of the East Grand Forks Police Department (“EGFPD”) while investigating complaints made about Plaintiff Timothy Holmseth (“Plaintiff”) between 2009 and 2011 regarding postings he was publishing to the internet that ultimately resulted in a protective order being issued against Plaintiff in Florida. The second course of events concerns the actions of members of the EGFPD, members of the Polk County Sheriff’s Department, and two attorneys during the 2011 and 2012 investigation and prosecution of Plaintiff for violations of the Florida protective order. The third course of events concerns a staff member of the East Grand Forks Economic Development and Housing Authority (“EDHA”) being ordered to shred an address verification form required for Plaintiff to obtain security clearance to work for a company providing janitorial services to the National Weather Service (“NWS”), and complaints made about Plaintiff while so employed that ultimately resulted in his employment being terminated on July 11, 2014. On July 22, 2014, Plaintiff submitted his initial pro se Complaint, [Docket No. 1], alleging that the named Defendants had conspired with non-party individuals and each other to violate a number of Plaintiff’s constitutional rights. On September 10, 2014, Plaintiff filed an 1 Amended Complaint, [Docket No. 11], that is the operative complaint. 1It appears that when Plaintiff formatted his Amended Complaint, he inserted into the body of the Amended Complaint portions of the text of two letters that he may have intended to include as exhibits. (See Amended 2 CASE 0:14-cv-02970-DWF-LIB Document 107 Filed 03/09/15 Page 3 of 57 On September 12, 2014, Defendants City, Richter, Hedlund, Murphy, Hajicek, and Schrage (collectively, the “City Defendants”) filed their Motion to Dismiss and/or for Summary Judgment, [Docket No. 13]. On September 18, 2014, Defendants Erdman and Norland (collectively, the “County Defendants”) filed their Motion to Dismiss, [Docket No. 23]. On September 24, 2014, Defendant Galstad filed a Motion to Dismiss, [Docket No. 32]. On October 14, 2014, Defendant Galstad filed an Amended Motion to Dismiss and/or for Summary Judgment, [Docket No. 54]. On October 21, 2014, Defendant LaCoursiere filed a Motion to Dismiss, [Docket No. 61]. As initially scheduled, oral arguments in the above-listed motions were to be heard on two separate dates. On October 30, 2014, the Court issued an Order consolidating the motions hearings regarding the four above-listed motions and rescheduling the single hearing for December 17, 2014. (Order, [Docket No. 71]). On November 12, 2014, Plaintiff filed a Motion for Injunctive Relief, [Docket No. 72]. On November 17, 2014, the Court issued an order scheduling that motion to be heard at the motions hearing previously scheduled for December 17, 2014. (Order, [Docket No. 74]). On December 3, 2014, Defendant Ringuette filed her Motion to Dismiss and/or for Summary Judgment, [Docket No. 84]. Complaint, [Docket No. 11], pp. 26-27). The inserted portion of the text of the first letter was to the Clerk of Court, asking that Plaintiff’s Amended Complaint be accepted. (Id. at 27). It appears Clerk of Court concluded the text of that letter to be the end of Plaintiff’s Amended Complaint and, as a result, docketed the Amended Complaint in two separate entries. The first portion of Plaintiff’s Amended Complaint was docketed under the heading “Amended Complaint” and appears to end on page 26. (Id.). The second portion of the Amended Complaint, which contains additional allegations, his list of claims, and prayer for relief, appears beginning at page three and ending at page twelve of Exhibit A to the Amended Complaint. (See Id., Ex. A, pp. 3-12). This error in the form of the filing is immaterial to the Court’s consideration of the motions at issue. When considering motions to dismiss for failure to state a claim, a court may consider the pleadings themselves, materials embraced by pleadings, exhibits attached to the pleadings, and matters of public record. Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir. 2011); see also Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (“In evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim, we hold ‘a pro se complaint, however inartfully pleaded, . to less stringent standards than formal pleadings drafted by lawyers.’” (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 3 CASE 0:14-cv-02970-DWF-LIB Document 107 Filed 03/09/15 Page 4 of 57 On February 11, 2015, while the motions heard at the December 17, 2014, hearing were still under advisement, the Court heard oral argument on Defendant Ringuette’s motion. The Court stated orally on the record that it would address all of the above-listed motions in a single report and recommendation. II. MOTION TO DISMISS STANDARD OF REVIEW Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” In addressing a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim, “we look only to the facts alleged in the complaint and construe those facts in the light most favorable to the plaintiff.” Riley v. St. Louis County of Mo., 153 F.3d 627, 629 (8th Cir. 1998) (citing Double D Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554, 556 (8th Cir. 1998)). “[T]he court must assume that all facts alleged in the plaintiff’s complaint are true, and must liberally construe those allegations.” Conley v. Gibson, 355 U.S. 41, 45–46 (1957). All reasonable inferences must be drawn in favor of the nonmoving party. See Maki v. Allete, Inc., 383 F.3d 740, 742 (8th Cir. 2004). As discussed above, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” but in contrast, “[w]here a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 4 CASE 0:14-cv-02970-DWF-LIB Document 107 Filed 03/09/15 Page 5 of 57 Twombly, 550 U.S. at 556-67). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 664. “Although pro se pleadings are to be construed liberally, pro se litigants are not excused from failing to comply with substantive and procedural law.” Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir. 1984). III. FACTS COMMON TO THE MOTIONS TO DISMISS2 The overwhelming majority of the factual allegations in Plaintiff’s Amended Complaint concern a Florida attorney named Kim Picazio and Picazio’s associates, whom Plaintiff conclusorily alleges conspired together and with Defendants to threaten him and violate his civil rights. (See gen., Amended Complaint, [Docket No. 11]). Neither Picazio nor her associates are parties to this case.