Nagel v. City of Jamestown

Decision Date02 August 2018
Docket NumberCIVIL ACTION NO. 17-00066-WGY
Citation326 F.Supp.3d 897
Parties Thomas NAGEL, Plaintiff, v. CITY OF JAMESTOWN, NORTH DAKOTA, and Scott Edinger, individually and in his official capacity as Chief of the Police Department of Jamestown, Defendants.
CourtU.S. District Court — District of North Dakota

Joseph F. Larson, II, Jamestown, ND, Teresa J. Ayling, Pro Hac Vice, Marshall H. Tanick, Meyer Njus Tanick, PA, Minneapolis, MN, for Plaintiff.

Scott K. Porsborg, Brian D. Schmidt, Smith Bakke Porsborg Schweigert & Armstrong, Attorneys at Law, Bismarck, ND, for Defendants.




The Plaintiff Thomas Nagel ("Nagel") brought this suit against the Defendants City of Jamestown, North Dakota (the "City"), and Scott Edinger, the Chief of the Police Department of Jamestown ("Edinger," and collectively with the City, the "Defendants") alleging violations of his federal and state constitutional rights. Pending before the Court are the Defendants' motion for summary judgment and Nagel's motion for partial summary judgment. For the reasons stated herein, the Court GRANTS the Defendants' motion for summary judgment on Counts I, II and IV and DENIES Nagel's motion for partial summary judgment. The Court dismisses Count III without prejudice.

A. Procedural History

On April 5, 2017, Nagel filed a complaint in the United States District Court for the District of North Dakota against the City and the chief of its police department, Edinger. Compl. ¶¶ 21-48, ECF No. 1. In his complaint, Nagel alleges a violation of his First Amendment rights under 42 U.S.C. § 1983 (Count I); a violation of his Fourteenth Amendment right to due process under 42 U.S.C. § 1983 (Count II); a violation of his constitutional rights under Article I, sections 4, 5 and 9 of the North Dakota Constitution (Count III); and a violation of the North Dakota Administrative Code Chapter 4-07-19 (Count IV). Id.

On April 3, 2018, the Defendants filed a motion for summary judgment. Defs.' Mot. Summ. J., ECF No. 23. The parties fully briefed the issues. Defs.' Mem. Supp. Mot. Summ. J. ("Defs.' Mem."), ECF No. 24; Pl.'s Resp. Mot. Summ. J. ("Pl.'s Opp'n"), ECF No. 49; Defs.' Reply Pl.'s Resp. Mot. Summ. J. ("Defs.' Reply"), ECF No. 54. Nagel also filed a motion for partial summary judgment on Count II, a portion of Count III, and Count IV. Pl.'s Mot. Partial Summ. J., ECF No. 38. This motion was fully briefed as well. Pl.'s Mem. Supp. Partial Summ. J. ("Pl.'s Mem."), ECF No. 43; Defs' Mem. Opp'n Partial Summ. J. ("Defs.' Opp'n"), ECF No. 47; Pl.'s Reply Defs' Resp. Mot. Partial Summ. J. ("Pl.'s Reply"), ECF No. 51.

On June 1, 2018, this Court heard oral argument on both motions and took the matter under advisement. See ECF Nos. 55, 57.

B. Factual Background2

On April 16, 1989, Nagel started working for the Jamestown Police Department. Aff. Brian D. Schmidt ("Schmidt Aff."), Ex. 1 at 3, ECF No. 26-1. Edinger was the Chief of the Police Department and Nagel's supervisor at all material times. Aff. Scott Edinger ("Edinger Aff.") ¶ 1, ECF No. 37. Nagel was also affiliated with the Fraternal Order of Police, a labor union that represents some members of the policedepartment. Compl. ¶ 2. In 1998, Nagel founded the James Valley Regional Lodge Number 4 of the Fraternal Order of Police and became its president for a period of eighteen years. Schmidt Aff., Ex. 2 ("CSC Hearing Transcript"), 154:11-19, ECF No. 26-2. As the president, Nagel advocated for a change in the retirement system of city employers. Schmidt Aff., Ex. 4, ¶ 12, ECF No. 26-4. Nagel's advocacy and behavior in some meetings created tension with his superiors. Edinger Aff. ¶¶ 2-9.

In 2013, after attending a class in which it was recommended to police officers to use pseudonyms on social media, Nagel changed his Facebook name to "Dominic Brimm" and privatized his account. CSC Hearing Transcript at 156:11-157:6. According to Nagel's testimony, he also created a false Facebook account under the name of Robert Hines, who posed as a local kid who had dropped out of school. Id. at 158:20-23. Nagel used the Hines account to spy on people that the police department was investigating. Id. at 158:11-25, 159:1-18; Schmidt Aff., Ex. 5 ("Nagel's Deposition"), 60:1-61:18, ECF No. 26-5. Using the Hines account, Nagel clicked on the Facebook page of Matt Thom ("Thom"), the Stutsman County Deputy, and saw a picture of Thom riding a jet-ski with the son of Stutsman County Sheriff Kaiser ("Sheriff Kaiser"). Id. at 62:5-63:7.

In early November 2015, KVLY, a television station in Fargo, North Dakota, received a tip from a "Dominic Brimm" about the improper conduct of some members of the Stutsman County Sheriff's Department. Edinger Aff. ¶ 10. The hotline tip alleged that a county-owned jet-ski had been used by a member of the Stutsman County Sheriff's Office ("Sheriff's Office") for personal purposes, and included the Facebook picture. Aff. Thomas Nagel ("Nagel Aff.") ¶¶ 5-6, ECF No. 45. After receiving the tip, Valley News Live reporter Christine Stanwood ("Stanwood") came to the Stutsman County courthouse on November 4, 2015. Edinger Aff. ¶ 10. Nagel then had a camera interview with Valley News Live, in which he commented on an alleged crime committed by a member of the Sheriff's Office who had used a government-owned jet-ski for personal use. Compl. ¶¶ 7-8; Schmidt Aff., Ex. 3 ("VNL Interview"), ECF No. 26-3. In the interview, Nagel acknowledged that Dominic Brimm was the alias he went by on Facebook. VNL Interview at 1:45-1:52. He said that he knew about the picture but denied being the one who sent it to Valley News Live. Id. at 2:09-2:14. When asked about who did, he answered: "I can say it is somebody that would be in fear of losing their job." Id. at 2:21-2:26.

After the interview, Nagel went to Edinger's office and told him that he knew who had submitted the tip. CSC Hearing Transcript at 263:10-265:22. That afternoon, Nagel visited attorney Joseph Larson ("Larson"). Nagel's Deposition at 118:11-25. In Larson's office, Nagel talked to the North Dakota Game and Fish Department and verified that the County did not own a jet-ski. Id. at 121:8-122:1.

After the Valley News Live interview, the County prohibited Nagel's Fraternal Order from holding any meetings or activities on County properties, and required the Fraternal Order to remove vending machines from which it profited and the ATM it housed in the County building. Id. at 126:1-6.

Nagel filed two grievances against Edinger. Nagel filed the first grievance after Edinger told him that some people wanted his resignation. Edinger Aff. ¶ 22; Nagel's Deposition at 126:10-18; CSC Hearing Transcript at 272:1-5. Edinger responded to the grievance by explaining that Casey Bradley, the Stutsman County Auditor, had mentioned this to him and that no formal request for the resignation had been made. Edinger Aff., Ex. 4, ECF No. 37-4. On November 5, 2015, Sheriff Kaiser told Edinger that he wanted Nagel to stay out of the Sheriff's Office. Edinger Aff. ¶ 23; CSC Hearing Transcript at 273:22-274:2. The Sheriff's Office and Police Department offices are located within the same building and are separated by a hallway. Edinger Aff. ¶ 16; Aff. Chad Kaiser ("Kaiser Aff.") ¶ 6, ECF No. 27. According to Kaiser's and Edinger's testimony, the Valley News Live incident had created "extreme tension" between the two offices. Edinger Aff. ¶ 15; Kaiser Aff. ¶ 5. Edinger ordered Nagel to stay out of the Sheriff's Office. Edinger Aff. ¶ 20; CSC Hearing Transcript at 274:15-21. Nagel filed his second grievance on January 27, 2016, in which he stated that Edinger had an obligation to put the order in writing. CSC Hearing Transcript at 218:21-219:2; Edinger Aff., Ex. 3 at 3-4, ECF No. 37-3. Nagel did not follow through with any of the grievances. Edinger Aff. ¶ 27; CSC Hearing Transcript at 273:22-274:12.

Meanwhile, the Police Department and Sheriff's Office requested that the North Dakota Criminal Bureau of Criminal Investigation ("BCI") conduct a criminal investigation on the jet-ski issue. Compl. ¶ 9; Edinger Aff., Ex. 1 ("BCI Report"), 8-9, ECF No. 37-1; Edinger Aff., Ex. 9 ("Edinger's Deposition"), 98:10-99:24, ECF No. 37-9. Various members of the Jamestown Police Department and Sheriff's Office were interviewed. BCI Report at 2-7, 11-36, 82-96, 112-16. The BCI never interviewed Nagel. Id. at 32-36. On December 31, 2015, Nagel's attorney sent another letter to the BCI asserting that Stutsman County leased a jet-ski and concluding that an enforcement officer had a "duty to pursue exonerating and exculpatory evidence." Id. at 109-10. On February 4, 2016, the BCI investigation closed, having concluded that the Sheriff's Office did not own a jet-ski and that there was insufficient evidence to support a criminal prosecution. Id. at 62, 122; Nagel Aff. ¶ 8 & Ex. 2.

The Police Department and the Sheriff's Office also conducted a joint internal investigation of potential violations related to the Valley News Live report. Edinger's Deposition at 102:8-103:4; Compl. ¶ 9. The investigation included thirty interviews of employees of the Jamestown Police and Sheriff's Office. Aff. John Johnson ("Johnson Aff.") ¶ 5, ECF No. 32. During his interview, Sheriff Kaiser stated that the jet-ski depicted in the picture belonged to his brother-in-law and that the whole incident had caused "huge tension" in both his personal life and at work. Kaiser Aff., Ex. 1, 4:16-24, 11:14-12:7, ECF No. 27-1. He recalled that his wife had taken a picture of Thom and his son on the jetski and sent it to Thom. Id. at 5:6-7, 9:23-10:1. The picture then became public when Thom designated it as his Facebook profile picture. BCI Report at 42. Several of the interviewees affirmed that Nagel knew the source of the anonymous tip sent to Valley News Live. Gross Aff., Ex. 1, 23:1-24:1, ECF No. 35-1; Hirchert Aff. Ex. 1, 10:13-11:12, ECF No. 25-1; CSC Hearing Transcript at 263:10-265:22.; Overvold Aff., Ex. 1, 5:9-6:17, ...

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