McDonough v. Toles, Case No. 19-CV-2238 (PJS/TNL)

• Court: United States District Courts. 8th Circuit. United States District Court of Minnesota
• Writing for the Court: Patrick J. Schiltz, United States District Judge
• Citation: 476 F.Supp.3d 882
• Parties: Lucas MCDONOUGH, Plaintiff, v. Clifton TOLES; City of Minneapolis; Fossland-Olson, Inc., d/b/a The 1029 Bar, Defendants
• Docket Number: Case No. 19-CV-2238 (PJS/TNL)
• Decision Date: 04 August 2020

476 F.Supp.3d 882

Lucas MCDONOUGH, Plaintiff,
v.
Clifton TOLES; City of Minneapolis; Fossland-Olson, Inc., d/b/a The 1029 Bar, Defendants,

Case No. 19-CV-2238 (PJS/TNL)

United States District Court, D. Minnesota.

Signed August 4, 2020

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Michael Stinson, Edward B. Magarian, and Ian Blodger, DORSEY & WHITNEY LLP, for plaintiff.

M. Gregory Simpson, Leatha G. Wolter, and Blake P. DeRosier, MEAGHER & GEER, P.L.L.P.; Daniel J. Singel and Jessica A. Zeletes, McCOLLUM, CROWLEY, MOSCHET, MILLER & LAAK, LTD., for defendant Clifton Toles.

Sara J. Lathrop, Sarah C.S. McLaren, and Tracey N. Fussy, MINNEAPOLIS CITY ATTORNEY'S OFFICE, for defendant City of Minneapolis.

James C. Kovacs and Steven E. Tomsche, TOMSCHE, SONNESYN & TOMSCHE, P.A., for defendant Fossland-Olson, Inc., d/b/a The 1029 Bar.

ORDER

Patrick J. Schiltz, United States District Judge

Plaintiff Lucas McDonough was severely injured when defendant Clifton Toles, an

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off-duty Minneapolis police officer, put him in a chokehold, dragged him outside a bar, and punched him in the face. McDonough brings this action against defendants Toles, the City of Minneapolis ("the City"), and Fossland-Olson, Inc., d/b/a The 1029 Bar ("the Bar"), asserting claims under 42 U.S.C. § 1983 and state law.

This matter is before the Court on defendants’ motions to dismiss. For the reasons that follow, the Court denies Toles's motion, grants in part and denies in part the City's motion, and grants the Bar's motion.

I. BACKGROUND

On December 23, 2017, McDonough and some of his friends went out for the evening, eventually arriving at the Bar in Northeast Minneapolis. Compl. ¶¶ 7, 14. Toles, who was off duty, was also at the Bar that evening, consuming alcohol and socializing with employees and patrons. Compl. ¶¶ 19-21, 74. Toles was a regular who often volunteered to help the Bar's security personnel when there were "problems at the bar." Compl. ¶ 86.

Just before bar close, McDonough was waiting for his friends and chatting with two women he had just met, "W1" and "W2." Compl. ¶ 15. A third woman, "W3," joined the group; McDonough had likewise never met her before. Compl. ¶¶ 17, 70. Earlier that evening, Toles had met and exchanged numbers with W3, and the two had spoken intermittently throughout the evening. Compl. ¶¶ 19-20.

About the time that W3 joined the group, Toles also approached. Compl. ¶ 22. McDonough attempted to include Toles in the group's conversation. Compl. ¶ 23. Toles accused McDonough of being disrespectful. Compl. ¶ 24. Before McDonough could respond, Toles announced himself as a Minneapolis police officer and put McDonough in a chokehold. Compl. ¶ 25. In later interviews, the three women in the group all indicated that McDonough had not been disrespectful and that Toles's aggression was unprovoked. Compl. ¶¶ 56-61, 64, 68-69.

Toles asked Mike Wells, a Bar security employee, for help in forcibly removing McDonough from the Bar. Compl. ¶ 25. Wells and Toles are well acquainted; the Bar's security video for that evening shows the two playing pull tabs, talking, laughing, and embracing. Compl. ¶¶ 74-75.

Wells did not hear Toles announce himself as a police officer and did not believe that he was acting as one. Compl. ¶ 26. Together, Wells and Toles removed McDonough from the Bar while McDonough struggled to breathe. Compl. ¶ 32. In the Bar's security video, McDonough appears to be reaching up to try to loosen Toles's chokehold, and Wells can be seen grabbing McDonough's arm and pulling it down. Kovacs Decl. Ex. A.

Wells cleared a path for Toles to drag McDonough outside via a locked exit door not normally used by patrons. Compl. ¶ 34. Once outside, Toles released McDonough. Compl. ¶ 37. McDonough turned around and, without warning, Toles punched him in the face. Compl. ¶ 38. The force of the punch fractured McDonough's cheekbone and rendered him unconscious, causing him to fall defenselessly to the ground. Compl. ¶¶ 39-40. McDonough's head split open upon hitting the ground, causing a concussion, brain bleed, and traumatic brain injury. Compl. ¶ 41.

Neither Toles nor any Bar employee called 911 or did anything else to help McDonough. Compl. ¶¶ 42-43. Instead, with Wells's encouragement, Toles fled the scene, leaving McDonough bleeding on the sidewalk. Compl. ¶¶ 44-45. Meanwhile, having watched Toles and Wells remove McDonough from the Bar, W2 hurried to

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the customer exit and ran around the building, where she found McDonough bleeding from his head and unaware of his surroundings. Compl. ¶¶ 48-49. W2 called 911, and McDonough was transported to the Hennepin County Medical Center. Compl. ¶¶ 50-51.

Minneapolis police officers arrived at the scene and began an investigation. Wells falsely told the officers that he did not know the man who had assaulted McDonough. Compl. ¶¶ 75-76. Wells also falsely told the officers that both of the men had been kicked out of the Bar, that both were shoving each other, and that McDonough had swung first, at which point the other man punched him. Compl. ¶ 77.

Shortly after the incident, Toles contacted his superior officer and told him what had happened. Compl. ¶ 94. Toles then completed a written police report about the incident, describing it as though he had detained a citizen in the course and scope of his employment as a police officer. Compl. ¶ 95. The report's account of the incident is largely false. For example, the report claims that, while inside the Bar, McDonough used vulgar language and pushed Toles in a belligerent manner, Compl. ¶ 107; that Toles asked Wells for help and McDonough came toward Toles in a threatening manner, Compl. ¶ 116; that Toles escorted McDonough outside using an arm-bar technique and repeatedly asked him to go home, Compl. ¶¶ 120, 122; that McDonough swung at Toles's face and Toles reacted instinctively by hitting back, causing McDonough to fall, Compl. ¶ 122; that Bar staff took control of McDonough, who was able to sit up and speak, Compl. ¶ 122; and that Toles asked the Bar to call for emergency medical assistance before leaving with his friends, Compl. ¶ 122. All of this was false. Compl. ¶ 122.

A few days later, after witnesses had identified the suspect as an officer with the Minneapolis Police Department ("MPD"), the investigation was turned over to the St. Paul Police Department ("SPPD"). Compl. ¶ 83. Wells admitted to the SPPD that Toles was a regular who often helped with unruly customers at the Bar. Compl. ¶ 86. He also admitted that the men had not been fighting, that he did not know why Toles had punched McDonough, and that after the assault he told Toles to get away. Compl. ¶¶ 90, 92. Wells never faced any consequences for initially lying to Minneapolis police. Compl. ¶ 81.

The MPD withheld Toles's written report from the SPPD on the ground that the report was "in violation of Garrity rules"—i.e., made involuntarily under threat of termination.¹ Compl. ¶ 99. As the MPD knew, this was false, as Toles had voluntarily completed the report without having been directed to do so. Compl. ¶¶ 95-96, 99.

Toles did not talk to anyone from the SPPD until a month after the incident, when he agreed to come to SPPD headquarters with his attorney, Thomas Kelly. Compl. ¶ 101. Kelly is employed by the Minnesota Police and Peace Officers Association ("MPPOA"). Compl. ¶ 102. MPPOA provides legal representation to its member officers in connection with "critical incidents" that might expose an officer to criminal liability. Compl. ¶ 103. A "critical incident" is an "action which arises from any act or omission within the scope of employment in which (a) serious injury or death occurs; or (b) the discharge of a weapon is involved." Compl. ¶ 104.

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In his interview with the SPPD, Toles gave a false account of his activities— a false account that differed from the false account that he had provided in his written report. Compl. ¶¶ 106, 123. This time, Toles did not claim that McDonough pushed him. Compl. ¶ 110. Instead, Toles claimed that he used force on McDonough because McDonough was walking toward him with a drinking glass and Toles feared that McDonough might use it as a weapon. Compl. ¶ 108. Toles's account is contradicted by the video evidence, by the accounts of the other witnesses, and by Toles's own written report, which does not say anything about Toles being fearful that McDonough might attack him with a drinking glass. Compl. ¶¶ 109, 112-13. Toles also claimed for the first time that he left the scene because McDonough's friends came outside and confronted him. Compl. ¶ 123. That never happened. Toles also claimed during the interview that his supervising officers had instructed him to write a report about the incident; Toles lied about this fact so that the report could not be used against him. Compl. ¶¶ 132-33.

As a result of Toles's assault, McDonough was hospitalized over the holidays and now has permanent cognitive deficits and no sense of taste or smell. Compl. ¶¶ 53-54. McDonough's injuries have left him unable to work in his profession as a comedian and actor. Compl. ¶ 53.

II. ANALYSIS

A....