ISSA v. CITY OF GLENCOE

PAUL MAGNUSON, Senior District Judge

This matter is before the Court on Defendants' Motions for Summary Judgment. For the following reasons, the Court grants Defendants' Motions.

Plaintiffs Abdulahi Issa and Hniya Kouttay claim that Defendants City of Glencoe and its police officers violated their civil rights through an unlawful search and seizure of their rented townhome in December 2001. Plaintiffs also bring civil rights claims and negligence claims against Defendant Kestrel Park Townhomes ("Kestrel Park") and its property manager, Defendant DMW Properties ("DMW")

Plaintiffs Abdulahi Issa and Hniya Kouttay are married. From July 15, 2000, to December 2001, Plaintiffs were tenants of the Kestrel Park Townhomes located at 2443 14th Street S.E., in Glencoe, Minnesota. BMW operated the management office at Kestrel Park. Brenda Peterson (formerly Brenda Plath) was the Kestrel Park property manager during this period.

In September 2000, Plaintiffs notified Peterson that they intended to move out of their rented townhome. From September 2000 until December 2001, Peterson received various notices that indicated Plaintiffs' continued intention to move out. On November 30, 2001, Plaintiffs indicated to Peterson that they had moved out on November 15, 2001, and that all they had left to do was to clean the townhome. (PL's Ex. G-3.) On December 5, 2001, Plaintiffs again wrote Peterson and told her that they would be out no later than December 31, 2001. (Id. Ex. G-4.) Plaintiffs moved out most of their property on December 12, including "furniture, cooking materials and heavy items." (PL's Opp'n. Mem. at 4.) Plaintiffs claim that they planned to return on December 13 to finish the job. (Id.) However, Plaintiffs did not return on December 13. Peterson testified that on December 13, 2001, in light of all the letters and Plaintiffs' actions, she believed that Plaintiffs had completely vacated the residence. (PL's Ex. S at 62-63 (Peterson Dep.).)

B. Events Prior to December 13, 2001

On October 27, 2001, Plaintiff Issa attended an Iowa Department of Transportation ("DOT") auction and purchased a used 1998 Ford Crown Victoria car. Mr. Issa wrote a personal check for $4,800. The check failed to clear because of insufficient funds. The address on this particular check was the Glencoe townhome address. David May of the Iowa DOT contacted the Glencoe Police Department on December 12, 2001, and spoke with Defendant Officer Tim Trocke.

May told Trocke about the bad check, and the vehicle that Mr. Issa currently possessed. Trocke knew who Mr. Issa was. Apparently, Mr. Issa owned many former squad cars, and DMW often called the Glencoe Police Department to complain about the parking of these cars. Because May believed that Mr. Issa had committed a crime by writing a bad check, May requested that Trocke provide him with information regarding Issa so that the Iowa DOT could recover either the vehicle or the amount owed. (May Aff. ¶¶ 7-8.) Trocke told May that he would try to contact Mr. Issa to give him an opportunity to make payment on the bad check. (Trocke Aff. ¶ 7.)

On December 12, 2001, Trocke went to Mr. Issa's Glencoe townhome. No one answered the door and the home appeared to be vacant. Because Mr. Issa had traveled to Iowa and purchased a vehicle with a bad check, and was now potentially on the run with a stolen car, Trocke continued to investigate. (Id. 10.) On December 13, Trocke contacted Peterson. Peterson told Trocke that she believed that Plaintiffs had moved out. Peterson then gave Trocke consent and the master key to enter the vacated townhome.

When Trocke entered the townhome, he discovered that most of the furniture was gone. (Id. ¶ 15.) Trocke also found various items, including unopened mail, bill collection notices, and nearly 40 credit cards with different variations of Mr. Issa's name. (Id. ¶¶ 16-21.) Trocke also noticed a list of 20 former squad cars that Mr. Issa had previously purchased. (Id. ¶ 22.) This interested Trocke because following the September 11 attacks, the Department of Homeland Security notified law enforcement officers of the possible threat of terrorist activities using former squad cars. (Id. ¶ 23.) Based on what Trocke discovered at the townhome, Defendant Police Chief Wesley Olson and the FBI Task Forces were contacted. (Id. ¶ 25-26.) The Glencoe Police Department seized the items of interests. (Id. ¶ 27.) The FBI eventually seized the evidence relevant to their investigation. (Id. ¶ 28.)

Plaintiffs learned of the search on December 14, 2001, and contacted the Glencoe Police Department. (PL's Ex. A ¶ 9 (Issa Aff.).) Plaintiffs allegedly tried to learn more about the search and the items taken, without much success. After the investigation was complete, the Glencoe Police Department notified Plaintiffs that they could pick up their property. These items included credit cards, credit information, statements, newspapers, bad checks, a list of bad checks, copies of vehicle titles, a list of squad cars purchased at auctions, various old documents and an old Lexmark printer. The FBI retained passport photos, a diary, and photos of Mr. Issa's family. Mr. Issa asserts that these items did not comprise the entirety of the property taken.

Despite the Glencoe Police Department's efforts to return the property to Plaintiffs, Plaintifls failed to pick it up. After a final notification in February 2002, the property was eventually destroyed in March 2002 according to department policy.

A. Standard of Review

Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court must view the evidence in a light most favorable to the non-moving party. The burden of demonstrating that there are no genuine issues of material fact rests on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party has carried its burden, the non-moving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256 (1986).

B. 42 U.S.C. § 1983 Claim Against Defendant City of Glencoe

A municipality may be liable under 42 U.S.C. § 1983. Monell v. Dep't of Social Servs. of New York, 436 U.S. 658, 694-95 (1978). However, a municipality cannot be liable under the respondeat superior theory. Id. Rather, the municipality must employ a policy or custom that "inflicts the injury" on the plaintiff.Id. Neither the Complaint, nor the record, contain any allegations or facts that the City of Glencoe employed policies or customs that inflicted injury on plaintiffs. Summary judgment is therefore appropriate on Plaintiffs' § 1983 claim against the City of Glencoe.

C. 42 U.S.C. § 1983 Claims Against Defendants Olson and Trocke

1. Official Capacity

A suit against an officer in his official capacity is construed as a suit against the governmental entity. Lopez-Buric v. Notch, 168 F. Supp.2d 1046, 1049 (D. Minn. 2001) (Montgomery, J.); see also Miskovich v. Indep. Sch. Dist. 318, 226 F. Supp.2d 990, 1013 (D. Minn. 2002) (Erickson, M.J.). Because Plaintiffs fail to assert a legitimate Monell claim against Defendant City of Glencoe, they cannot assert § 1983 claims against Defendants Olson and Trocke in their official capacities.

2. Individual Capacity

To state a claim under 42 U.S.C. § 1983, Plaintiffs must allege that a person acting under color of state law violated their constitutional rights. West v. Atkins, 487 U.S. 42, 48 (1988). Defendants Olson and Trocke argue that Plaintiffs fail to specifically assert claims against Defendants Olson and Trocke in their "individual" capacities, requiring dismissal of these claims. See Lopez-Buric, 168 F. Supp.2d at 1049-50. However, the caption to the Complaint and the Amended Complaint clearly identifies Defendants Olson and Trocke, "personally and in their capacities as employees/agents of the City of Glencoe." (See Am. Compl.) Defendants' Olson's and Trocke's argument that "personally" does not intimate "individually" is without merit. This is sufficient to put Defendants Olson and Trocke on notice that this was an individual capacity suit.

Defendants alternatively argue that Defendants Olson and Trocke are entitled to qualified immunity. The Court must make a three-part inquiry to determine if Defendants are entitled to qualified immunity: (1) whether Plaintiffs have asserted a violation of their constitutional rights; (2) whether the allegedly violated constitutional right was clearly established; and (3) whether there are no genuine issues of material fact as to whether a reasonable official would have known that the alleged acts violated that right. Foulks v. Cole County, 991 F.2d 454, 456 (8th Cir. 1993).

Plaintiffs assert that the officers violated Plaintiffs' Fourth Amendment rights when the officers entered and seized Plaintiffs' property from the Glencoe townhome without a warrant. There are limited exceptions to the warrant requirement. In particular, consent negates any Fourth Amendment violation. U.S. v. Matlock, 415 U.S. 164, 171 (1974). It is undisputed that Peterson gave consent for the entry of the townhome. The issue remains whether it was objectively reasonable for the Defendant Officers to act under this consent.

The Court must focus on the facts as known to the Defendant Officers, not the facts as they actually were. See Illinois v. Rodriguez, 497 U.S. 177, 183-89 (1990) (warrantless entry is valid if based on consent of third party whom officer, at time of entry, reasonably believes to possess common authority over premises, even if third party actually does not). The facts known to Defendants Olson and Trocke at the time of entry were that the property manager told them Plaintiffs had moved out, and that the townhome visually appeared to be vacated. Based on these circumstances, the Court concludes that it was reasonable for the Defendant Officers to conclude that Plaintiffs no longer occupied the premises and that Peterson's consent was valid. See Id. at 188 (determining that if the surrounding circumstances are such that a reasonable person would doubt the truth of the third party's assertion and thus not act without further inquiry, then the search is invalId.) Therefore, there was no violation of Plaintiffs' Fourth Amendment rights.

Moreover, the evidence supports the reasonableness of the Defendant Officers' actions. Mr. Issa allegedly possessed a vehicle that he had purchased with insufficient funds. Officer Trocke investigated these allegations, hoping that Mr. Issa would make payments as due. The name and address on the check indicated the Glencoe townhome address, and when Mr. Issa could not be located and the apartment appeared to be vacated, Officer Trocke entered the townhome with consent to further investigate Plaintiff Issa's whereabouts. When he entered, numerous items were in plain view, triggering a more thorough search of the townhome. Officer Trocke's actions were reasonable. Therefore, qualified immunity protects the Defendant Officers from liability.

The claims remaining against both DMW and Kestrel Park are a § 1983 civil rights claim and a claim for negligence. The law is well established that a § 1983 claim may not be maintained against a private party. Plaintiffs argue that Peterson acted as an agent of the Glencoe Police Department. However, Plaintiffs fail to point to sufficient facts to support this assertion. Therefore, since DMW and Kestrel Park are both private parties, Plaintiffs' § 1983 claims must be dismissed. Plaintiffs further claim that DMW and Kestrel Park were negligent because they "breached [their] duty of care to protect Plaintiffs from foreseeable injury from third persons." (Am. Compl. § 51.) A negligence claim requires Plaintiffs to establish that: (1) DMW and Kestrel Park owed them a duty; (2) BMW and Kestrel Park breached that duty; (3) Plaintiffs suffered injury or damage; and (4) this injury or damage was proximately caused by BMW's and Kestrel Park's breach of duty.Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001). A landlord-tenant relationship does not create a duty to protect.Bigos v. Kluender, 611 N.W.2d 816, 821 (Minn.Ct.App. 2000). Plaintiffs fail to establish that a genuine issue of fact exists as to whether BMW or Kestrel Park owed a duty to Plaintiffs to protect them from the Glencoe Police Bepartment. This failure is fatal to Plaintiffs' negligence claims.

Plaintiffs fail to demonstrate that a genuine issue of material fact exists on any of the claims asserted against any of the Defendants. Therefore, summary judgment is appropriate. Accordingly, based on all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:

1. Defendant City of Glencoe's Motion for Summary Judgment (Clerk Doc. No. 31) is GRANTED:

2. Defendant Trocke's and Defendant Olson's Motion for Summary Judgment (Clerk Doc. No. 31) is GRANTED;

3. Defendant DMW Properties' Motion for Summary Judgment (Clerk Doc. No. 39) is GRANTED; and

4. Defendant Kestrel Park Townhomes' Motion for Summary Judgment (Clerk Doc. No. 29) is GRANTED.