Rassier v. Sanner, 043021 FED8, 20-1708

Docket Nº20-1708
Opinion JudgeBENTON, Circuit Judge.
Party NameDaniel A. Rassier; Rita Rassier Plaintiffs - Appellants v. John Sanner; Pam Jensen; Ken McDonald; Stearns County, Minnesota Defendants - Appellees
Judge PanelBefore LOKEN, COLLOTON, and BENTON, Circuit Judges.
Case DateApril 30, 2021
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Daniel A. Rassier; Rita Rassier Plaintiffs - Appellants

v.

John Sanner; Pam Jensen; Ken McDonald; Stearns County, Minnesota Defendants - Appellees

No. 20-1708

United States Court of Appeals, Eighth Circuit

April 30, 2021

Submitted: February 16, 2021

Appeal from United States District Court for the District of Minnesota

Before LOKEN, COLLOTON, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Daniel A. Rassier and Rita M. Rassier sued John L. Sanner, Pam Jensen, Ken P. McDonald, and Stearns County, Minnesota, asserting First Amendment retaliation, a derivative claim for municipal liability, and state law claims for defamation and intentional infliction of emotional distress. The district court1 dismissed these claims on summary judgment as time barred under the statutes of limitations. Rassier v. Sanner, 2020 WL 1082492 (D. Minn. Mar. 6, 2020). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Jacob E. Wetterling was kidnapped and murdered in 1989. He was abducted at the end of Rita Rassier's driveway. That night, her son Daniel Rassier reported to the Stearns County police that he witnessed a suspicious vehicle in the driveway around the time of the abduction. The murder remained unsolved until September 2016, when Danny J. Heinrich confessed to the crime.

In 2003, during the investigation, John Sanner became Stearns County Sheriff. Later that year, investigators identified a driver who turned around in the driveway on the night of the abduction. After determining the driver was not involved in the abduction, the police theorized that Jacob was not taken in a car. Daniel Rassier became dissatisfied with the investigation, questioning the "abduction-on-foot theory" and the effectiveness of the investigation. He repeatedly criticized the police in the years following the disappearance, including in television interviews.

In 2009, Patty L. Wetterling (Jacob's mother) collaborated with the police to record a conversation between herself and Daniel. Patty and the police hoped he would disclose information about the abduction. During a recorded conversation, Daniel criticized the police and Sanner.

The Rassiers allege that, learning of Daniel's criticisms, Sanner retaliated against him. Specifically, they allege that in retaliation, the police executed a search warrant on their property on June 30 and July 1, 2010. Investigators seized personal items from the Rassiers' home and removed truckloads of soil with heavy construction equipment. The Rassiers allege that during the search, Sanner privately told Daniel twice, "This is what happens when you talk."

Several news organizations live-covered the search. Days later, Sanner told a reporter that Daniel was "at least a person of interest" in the investigation-which Daniel immediately learned.

In 2017, the Rassiers sued Sanner, Pam Jensen (the lead investigator), Stearns County, and Ken McDonald.2 The district court dismissed several claims that were based on allegedly unlawful searches. See Rassier v. Sanner, 2017 WL 5956909 (D. Minn. Nov. 30, 2017). On summary judgment, the court dismissed the four remaining claims: 42 U.S.C. § 1983 First Amendment retaliation, a derivative claim for municipal liability, defamation, and intentional infliction of emotional distress. The court ruled that the section 1983 retaliation claim was barred by the six-year statute of limitations, and the defamation and intentional infliction of emotional distress claims were barred by the two-year statute of limitations. The court also denied equitable tolling because the Rassiers could not show that they diligently pursued their rights, or that an extraordinary circumstance prevented timely filing. The Rassiers appeal.

II.

According to the Rassiers, their claims accrued in 2016, when Daniel first saw the unsealed affidavit for the search of the property and when Heinrich confessed to the murder. They assert that their 2017 suit is not barred by the statutes of limitations.

This court reviews de novo a grant of summary judgment. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Id.,

citing Fed. R. Civ. P. 56.

Section 1983 does not contain a statute of limitations; instead, courts apply the state statute of limitations for personal-injury torts. See Wallace v. Kato, 549 U.S. 384, 387 (2007). Under Minnesota law, the Rassiers' section 1983 First Amendment retaliation claim has a six-year statute of limitations. Minn. Stat. § 541.05. See United States v. Bailey, 700 F.3d 1149, 1153 (8th Cir. 2012) (the "statute of limitations on claims under 42 U.S.C. § 1983" is "six years in Minnesota"). Their state law claims of defamation and intentional infliction of emotional distress have a two-year statute of limitations under Minnesota law. Minn. Stat. § 541.07(1).

A.

When a section 1983 claim accrues "is a question of federal law." Wallace, 549 U.S. at 388. It is the "standard rule that [accrual occurs] when the plaintiff has a complete and present cause of action." Id. (alteration in original), quoting Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of California, 522 U.S. 192, 201 (1997). In other words, accrual occurs when "the plaintiff can file suit and obtain relief." Id.

For the retaliation claim here, the cause of action accrued when the retaliatory action occurred. See Graham Cty. Soil & Water Conserv. Dist. v. United States ex rel. Wilson, 545 U.S. 409, 419 (2005) (recognizing that "virtually all" state statutes of limitations, including Minn. Stat. § 541.07, begin "when the cause of action accrues-in retaliation actions, when the retaliatory action occurs."). See also Gekas v. Vasiliades, 814 F.3d 890, 894 (7th Cir. 2016) ("Generally, the statute of limitations clock begins to run on First Amendment retaliation claims immediately after the retaliatory act occurred."); Johnson v. Johnson Cty. Comm'n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991) ("Claims arising out of police actions toward a criminal suspect, such as arrest, interrogation, or search and seizure, are presumed to have accrued when the actions actually occur."); Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983) (where "illegal search and seizure is alleged, the conduct and asserted injury are discrete and complete upon occurrence, and the cause of action can reasonably be deemed to have accrued when the wrongful act occurs.").3

Retaliation claims generally accrue when the retaliatory action occurs because damages result at that time. See Wallace, 549 U.S. at 391 (a "tort cause of action accrues, and the statute of limitations commences to run, when the wrongful act or omission results in damages." (citation omitted)). The "cause of action accrues even though the full extent of the injury is not then known or predictable." Id. (citation omitted). Otherwise, "the statute would begin to run only after a plaintiff became satisfied that he had been harmed enough, placing the supposed statute of repose in the sole hands of the party seeking relief." Id. See Henderson v. Ford Motor Co., 403 F.3d 1026, 1033 (8th Cir. 2005).

In their section 1983 claim, the Rassiers allege that Sanner retaliated against Daniel's criticisms by searching their property and publicly naming him a person of interest. Those retaliatory acts occurred in 2010. The Rassiers knew they were being retaliated against at that time. Their cause of action accrued then, beginning the six-year statute of limitations, which expired before this case was filed. See Graham, 545 U.S. at 419; Gekas, 814 F.3d at 894.

The Rassiers assert there is a genuine issue of material fact about when Daniel knew he was being retaliated against. They highlight several of his statements, arguing they show he was not sure of any retaliation until 2016, when he first saw the unsealed affidavit for the warrant to...

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