Cole v. Doe

• Decision Date: 01 December 2021
• Docket Number: Case No. 21-CV-1282 (PJS/JFD)
• Citation: 571 F.Supp.3d 1033
• Parties: Carolyn COLE and Molly Hennessy-Fiske, Plaintiffs, v. John DOES 1, 2, and 3, acting in their individual capacities as troopers or other sworn officers of the Minnesota State Patrol; Joseph Dwyer, acting in his individual capacity as a Captain of the Minnesota State Patrol; and Timothy Salto, acting in his individual capacity as a Lieutenant of the Minnesota State Patrol, Defendants.
• Court: U.S. District Court — District of Minnesota

571 F.Supp.3d 1033

Carolyn COLE and Molly Hennessy-Fiske, Plaintiffs,

v.John DOES 1, 2, and 3, acting in their individual capacities as troopers or other sworn officers of the Minnesota State Patrol; Joseph Dwyer, acting in his individual capacity as a Captain of the Minnesota State Patrol; and Timothy Salto, acting in his individual capacity as a Lieutenant of the Minnesota State Patrol, Defendants.

Case No. 21-CV-1282 (PJS/JFD)

United States District Court, D. Minnesota.

Signed December 1, 2021

Robert Bennett, Andrew J. Noel, Kathryn H. Bennett, and Marc Betinsky, ROBINS KAPLAN LLP, for plaintiffs.

Joseph Weiner, MINNESOTA ATTORNEY GENERAL'S OFFICE, for defendants Joseph Dwyer and Timothy Salto.

ORDER

Patrick J. Schiltz, United States District Judge Plaintiffs Carolyn Cole and Molly Hennessy-Fiske are journalists employed by the Los Angeles Times . In May 2020, Cole and Hennessy-Fiske traveled to Minnesota to cover the civil unrest that followed the death of George Floyd. Cole and Hennessy-Fiske were injured on the evening of May 30, 2020, by state troopers who were using pepper spray and projectiles to disperse protestors.

Cole and Hennessy-Fiske bring this action against three unidentified troopers—designated as "John Does 1, 2, and 3"—claiming that the troopers used excessive force against them. Cole and Hennessy-Fiske also bring claims against Major¹ Joseph Dwyer and Lieutenant Timothy Salto, seeking to hold them liable for the actions of the three troopers.

Dwyer and Salto move to dismiss the claims against them. Dwyer and Salto argue that they cannot be held liable for the actions of the Doe defendants because the claims against the Doe defendants are barred by the doctrine of qualified immunity. Dwyer and Salto argue in the alternative that, even if the claims against the Doe defendants are not barred by qualified immunity, the complaint fails to plead a plausible supervisory-liability claim. The Court agrees with the latter argument and thus dismisses the claims against Dwyer and Salto without prejudice.

I. FACTS

The complaint alleges the following facts:

A. Protests and Curfew Order

On May 25, 2020, George Floyd was killed by Minneapolis Police Officer Derek Chauvin, and protestors quickly took to the streets of Minneapolis and other cities. After some of the protests metastasized into arson, looting, and violence, Minnesota Governor Tim Waltz declared a peacetime emergency, activated the Minnesota National Guard, and imposed an 8:00 pm curfew in the cities of Minneapolis and St. Paul for the nights of May 29 and 30, 2020. Compl. ¶ 20. Governor Walz's executive order explicitly exempted members of the "news media" from the curfew. Id . ¶ 21.

B. Assaults on Plaintiffs

At the time of Floyd's murder, Cole and Hennessy-Fiske were working as journalists for the Los Angeles Times. Id. ¶¶ 4, 6. Cole and Hennessy-Fiske traveled to Minnesota to report on the civil unrest. Id. ¶¶ 36, 39.

On the night of May 30, 2020, both Cole and Hennessy-Fiske were part of a group of about 20 journalists who were covering protests outside of the headquarters of the Fifth Precinct of the Minneapolis Police Department. Id. ¶¶ 43–44. The Fifth Precinct is located on Nicollet Avenue, across the street from a large garage used by Metro Transit. As the 8:00 pm curfew drew near, Cole, Hennessy-Fiske, and the other journalists donned curfew gear—including clothing bearing the word "PRESS" and clearly visible press credentials—so that they would be readily identifiable as members of the press. Id. ¶¶ 44–45. The group of journalists was positioned along the eastern wall of the Metro Transit garage, across Nicollet Avenue from the Fifth Precinct and the crowd of protestors. Id. ¶¶ 49–50.

Shortly after the curfew went into effect, a contingent of Minnesota State Patrol troopers emerged from the Fifth Precinct and order

ed the protestors to disperse, advising them that they were in violation of the curfew order and would be arrested if they did not leave. Id. ¶¶ 53, 54, 62. The troopers then began walking down Nicollet Avenue to disperse the protestors. Id. ¶ 53. The troopers later reported that the protestors hurled rocks, bricks, fireworks, and other items at them. Id. ¶ 60.

As the troopers made their way down Nicollet Avenue, a few troopers—including defendants John Does 1, 2, and 3—broke off from the main group and headed directly toward the group of journalists gathered near the Metro Transit garage. Id. ¶ 71. As the troopers advanced, Hennessy-Fiske and other journalists held up their press credentials, loudly identified themselves as journalists, and otherwise alerted the advancing troopers that they were members of the press. Id. ¶¶ 74–77. The troopers said nothing in response but instead began to spray the journalists with pepper spray and shoot them with blunt-impact projectiles. Id. ¶¶ 78–79.

As the journalists fled north along the wall of the Metro Transit garage, the troopers pursued them, eventually trapping them in a corner. Id. ¶¶ 84–85. During the pursuit, Cole was sprayed directly in her face with pepper spray, and Hennessy-Fiske "was struck at least five times in the left leg by blunt-impact projectiles and a tear-gas cannister." Id. ¶¶ 82, 86. After the troopers moved on past the group of journalists, a Good Samaritan drove Cole and Hennessy-Fiske to a hospital, where they were treated for their injuries. Id. ¶ 116.

C. Dwyer and Salto's Involvement

On May 30, 2020, Dwyer commanded the Minnesota State Patrol's Mobile Response Team ("MRT"), while Salto commanded the State Patrol's Special Response Team ("SRT"). Id. ¶¶ 10-11. Dwyer and Salto were in command of the troopers who injured Cole and Hennessy-Fiske. Id. ¶¶ 56–57. Dwyer and Salto each later wrote reports regarding the events that occurred on May 30; those reports confirmed that "[m]unitions were deployed ... includ[ing] CS, blast balls, stinger balls, direct impact rounds and triple chasers." Id. ¶¶ 55, 64. Neither report specifically mentioned the use of force against the group of journalists. Id. ¶ 68. John Does 1, 2, and 3 did not write reports regarding their use of force that night. Id . ¶ 69.

II. LEGAL STANDARD

In reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in the plaintiffs’ favor, Du Bois v. Bd. of Regents , 987 F.3d 1199, 1202 (8th Cir. 2021), but the Court "need not consider legal conclusions that are couched as factual allegations," Viewpoint Neutrality Now! v. Regents of Univ. of Minn. , 516 F. Supp. 3d 904, 914 (D. Minn. 2021). A claim will survive a motion to dismiss pursuant to Rule 12(b)(6) only if the claimant has alleged "sufficient factual matter ... to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The factual allegations "must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the claim should be dismissed. Iqbal , 556 U.S. at 679, 129 S.Ct. 1937.

The Iqbal / Twombly standard has been applied by federal courts in countless cases, and, for the most part, its contours are well understood. Unfortunately, however, some confusion about the Iqbal / Twombly standard has arisen in this District because of two orders: one addressing the application of the Iqbal / Twombly standard in civil-rights cases, and the other addressing the application of the Iqbal / Twombly standard to claims supported by facts alleged on "information and belief." Because the parties to this action rely on both of these orders, the Court takes this opportunity to address the confusion that the orders have created.

A. Gearin v. Rabbett

As noted, the Supreme Court held in Twombly —and reiterated in Iqbal —that a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ; see also Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. The Supreme Court specifically warned in Twombly —and warned again in Iqbal —that "a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ; Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

Following Twombly and Iqbal , some confusion in the case law arose because in a decision that preceded Twombly and Iqbal — Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit , 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) —the Supreme Court had appeared to hold that a claim against a municipality for failing to adequately train police officers who violated the plaintiff's civil rights was adequately pleaded, even though the claim provided nothing more than what Twombly described as "a formulaic recitation of the elements of a cause of action." Despite the apparent tension between Leatherman , on the one hand, and Twombly and Iqbal , on the other, Iqbal did not even mention Leatherman , and Twombly cited it only once in a footnote (with no hint of disapproval). See Twombly , 550 U.S. at 569 n.14, 127 S.Ct. 1955.

In the aftermath of Twombly and Iqbal , the federal courts took two positions regarding the continued viability of Leatherman . Some courts read Leatherman narrowly to hold only that the lower court had erred in applying a heightened pleading standard to Monell claims, but to express no opinion as to whether the complaint at issue was adequate under the correct ("un-heightened") pleading standard. Other courts read Leatherman more broadly to hold that the complaint at issue was adequate . Because Leatherman had not been overturned, these courts applied Leatherman in finding that formulaic Monell claims passed muster.

The undersigned took the latter...