“A Leg to Stand On; the Law and the Sign of Four”

Michael B. Miller, member of the Norwegian Explorers Scion in Minnesota, and frequent perpetrator of Groaner Quizzes, made adroit use of a Sherlockian reference in his role as  Sr Assistant Hennepin County Attorney.

MIke Miller_1a7e   Photo by Jean Upton

Brief

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

HENNEPIN COUNTY defendants’ REPLY BRIEF

Civil No. 06-4953 JNE/SRN

Baribeau; Jamie Jones; Kate Kibby,

on Jessicaher own behalf and as guardian for

her minor brother Kyle Kibby; Raphi Rechitsky;

Jake Sternberg; and Christian Utne,

Plaintiffs,

vs.

City of Minneapolis, Inspector Jane Harteau,

Sgt. Tim Hoeppner, Sgt. E.T. Nelson,

Sgt. John Billington, Sgt. D. Pommerenke,

Sgt. Erica Christensen, Officer Tim Merkel,

Officer Roderic Weber, Officer Sherry Appledorn,

Officer Jeanine Brudenell, Officer Robert Greer,

Officer Jane Roe (whose true name is unknown),

officer John Doe (whose true name is unknown,

and

County of Hennepin, Sean Kennedy,

Becky Novotny, Sam Smith (whose true name

is unknown, and Officer Mary Jones (whose true name is unknown,

Defendants.

INTRODUCTION

Plaintiff Jake Sternberg (Sternberg)¹ has filed and served a memorandum in opposition to the Hennepin County defendants’ summary judgment motion.  Essentially, Sternberg attempts to create one or more issues of material fact and to rebut the legal defenses asserted by these defendants.

Plaintiff’s memorandum does neither.  The factual disputes he raises do not rise to the level of materiality; he fails to make a prima facie case on any of the claims pleaded in the complaint; and he fails to provide the legal analysis necessary to rebut the affirmative defenses raised by defendant. 

STATEMENT OF UNDISPUTED FACTS

Despite the plaintiff’s dispute of minor factual matters, the following material facts are either not in dispute or have not been rebutted by the plaintiff:

1. Plaintiff Sternberg was arrested by the Minneapolis Police on a charge of simulated weapons of mass destruction on July 22, 2006.  Complaint, ¶ 33. 

2. The Minneapolis Police advised Hennepin County jail intake personnel that the arrestees were aggressive and belligerent, had made potential threats, and had potential booby traps or weapon.   As a result, jail personnel were at heightened awareness upon intake of the “zombies.”  Wittl Depo., pp., 12, 13, 15-16, 17-18, 24, 42.

¹ As noted in the Hennepin County defendants’ original brief, none of the other plaintiffs has articulated a claim against Hennepin County.  The brief in opposition to this motion, whi As le captioned “Plaintiffs’ Memorandum in Opposition to County Defendants’ Motion for Summary Judgment,” makes no reference to any cause of action, or any evidence adduced, by any plaintiff other than Sternberg.  This memorandum, like our original memorandum, will thus address only claims made by Sternberg.

3. Plaintiff Sternberg was lawfully confined for two days at the Hennepin County jail.  Exhibits 1 and 2 attached to Motion for Summary Judgment.

4. The Hennepin County jail is licensed by the Minnesota Department of Corrections and accredited by the American Correctional Association.  Wresh Depo., pp. 13-15, 16, 17; Dageford Depo., pp. 9, 17, 29-30; Exhibit 18 to original motion.

5. The night of plaintiff’s arrest was a busy one at the Hennepin County jail.  Booking Report, attached to original motion as Exhibit 16. 

6. Despite Sternberg’s refusal to give his full name, jail personnel followed standard intake, booking and housing procedures with him.  Extensive citations; see Memorandum in Support of Motion, pp. 9-15.

7. Sternberg and the other plaintiffs were brought to the jail still wearing sinister makeup and having carried equipment that resembled explosives.  Sternberg Depo., pp. 39, 40, 43-45, 73; Exhibit 15; Wittl Depo., p. 25.

8. Sternberg refused to give his last name or other personal information, and was correspondingly diverted to “uncooperative” housing.  Wittl Depo., pp. 27-29; Novotny Depo., pp. 18, 20, 21; Sternberg Depo., p. 73; Kennedy Depo., p. 13.

9. Sternberg’s lack of communicativeness made it more difficult to assess the level of risk that he posed, particularly since he did not have a jail history.  Erkens Depo. pp. 27-29.

10. The following factors are relied upon in making an assessment of the dangerousness level of an arrestee: cooperativeness, physical mannerisms, bodily gestures, attitude and emotional climate.  Erkens Depo., pp. 26-27.

11. Sternberg was given a medical assessment before his prosthetic leg was confiscated.  Kennedy Depo., pp. 13-14.

12. In view of all circumstances, Sternberg’s prosthetic leg was confiscated.  Novotny Depo., pp. 24, 35, 46, 51, 58, 59, 60, 64; Erkens Depo., pp. 18, 25-26.

13. Upon confiscation of his prosthetic leg, Sternberg was provided with a wheelchair and eventually housed in an ADA-compliant cell.   Novotny Depo., pp. 24-25; Carlson Depo., pp. 8-9, 12; Exhibits 5, 11-14 attached to original motion.

14. The decision to take the leg was made because it contained metal.  Kennedy Depo., pp. 16, 17, 20; Carlson Depo., pp. 11, 13; Novotny Depo., pp. 19, 33. 

15. The decision to take Sternberg’s prosthetic leg for security purposes followed jail policies and procedures.  Dageford Depo., p. 18 (no contrary testimony disclosed by plaintiff).

16. Jail staff members do not presently remember who made the decision to take the leg.  Kennedy Depo., p. 18; Novotny Depo., pp. 18, 22, 36, 65; Wittl Depo., pp. 38, 39; Erkens Depo., pp. 22-23.   

17. The deputy staff made the determination to confiscate the prosthetic leg, while Nurse Kennedy made the decision that it was not medically necessary for Sternberg to keep the leg.  Kennedy Depo., pp. 17-18; Wittl Depo., p. 36; Novotny Depo., pp. 12-13; Erkens Depo., p. 18.

18. There is no testimony from any source that defendant Sean Kennedy or Becky Novotny made the decision to confiscate Sternberg’s prosthetic leg.

19. When Sternberg disclosed his last name, he was immediately removed from “uncooperative” housing and placed back in the booking process; he had been there six hours.  Sternberg Depo., pp. 78-80; Novotny Depo., pp. 24-25; Carlson Depo., pp. 8-9, 12; Exhibits 5, 11-14 attached to original motion.

20. Confiscating the leg was less restrictive than placing Sternberg in segregated housing.  Dageford Depo., pp. 31-36.

21. A housing officer met with Sternberg and concluded that he was appropriately housed and that his needs were being met.  Carlson Depo., pp. 9-10, 19, 21.

22. Sternberg never signed any jail documents, printing only his first name in block letters.  Sternberg Depo., pp. 129-131, 140-141, 144-145. 

23. Sternberg was not denied access to any programs or services at the Hennepin County jail.  Sternberg Depo., pp. 163-164.²

ARGUMENT

²Plaintiff asserts that “the evidence clearly establishes denial of public benefits of services, programs or [sic] activities and subjection [sic] to discrimination, and denial of reasonable accommodation with the meaning of the ADA.”  Memorandum, p. 8.  Plaintiff does not, however, specify any service, program or activity to which he was denied access, or what accommodation (other than keeping his prosthetic leg) would have been reasonable.

I. PLAINTIFF HAS FAILED TO CREATE A GENUINE ISSUE OF MATERIAL FACT.

Plaintiff attempts, by several means, to create fact issues.  Following is a description of each, and the reasons that they fail.

A. Use of Minor Inconsistencies in Testimony in an Attempt to Create Genuine Issues of Material Fact.

This is done frequently in plaintiff’s memorandum.  Examples are:

Sternberg disputes that he used profanity or that he and the other plaintiffs had their backpacks with them at the time of intake at the Hennepin County Jail (Declaration,

¶ 2).  In fact, Sternberg testified that he does not remember using profanity, but did not deny it (Depo. p. 133).  Whether he used profanity at that moment, or whether the “zombies” had their backpacks with them while being booked, is immaterial, since jail staff were advised by the Minneapolis Police of the belligerent and profane behavior of the plaintiffs, as well as the fact that they possessed backpacks filled with equipment that resembled explosives at the time of their arrest (Wittl Depo. pp. 24, 26, 40, 41, 42). 

Sternberg likewise asserts that jail documentation “suggests” that Nurse Kennedy made the decision to take the leg. (Memorandum, p. 3).  This likewise does not rise to the level of a genuine issue of material fact.

B. Selective Use of Facts. 

Sternberg repeatedly asserts that the confiscation of his prosthetic leg was either contrary to, or without any basis in, jail policy (Memorandum, pp. 5-6, 12-13, 15, 18, 20, 24).  These assertions, taken alone, ignore the sheriff’s statutory mandate, which is to maintain a safe jail in which to house detainees.  Plaintiff’s related assertion that the only proper response under jail policy was to provide an “alternative [segregated] housing assignment” (Memorandum, p. 6) ignores the testimony of chief jail nurse and certified prison accreditor Mandy Dageford, who testified that confiscating the leg was a less restrictive alternative than placing Sternberg in segregated housing, and that it is never desirable to place a detainee in segregated housing if another option is available

(Dageford Depo., pp. 38-40).³ 

Plaintiff also represents that “Mr. Sternberg subsequently had to provide his last name in order to get food” (Memorandum, p. 5, also fn. 2).  He conveniently omits the fact that the request for food was made at 5:15 a.m., a time that the jail does not normally serve meals, and suggests that the jail punishes inmates by withholding food.  On the contrary, the jail is compliant with Minnesota Department of Corrections Regulations 2911.4400, which prohibits the withholding of food as a punishment, and 2911.4100, which specifies the frequency with which meals must be served in jails, and allows a 14- hour maximum between dinner and breakfast.  The implication that Sternberg was being punished by withholding food is false.

C. Substitution of Conclusory Language, Often Inflammatory, for Specific Facts. 

³Plaintiff asserts that Ms. Dageford “. . . ultimately conceded a lack of personal basis or expert qualification to make such a judgment.”  (Memorandum in Opposition, p. 6, fn 3).  The opposite in fact occurred: Ms. Dageford clearly testified to both her qualifications and her strongly-held opinion to this effect (Depo., pp. 38-41).

Plaintiff frequently resorts to the generalizations where facts in his favor are absent.  For example, plaintiff uses the word “arbitrary” repeatedly (Memorandum, pp. 1, 15, 17, 19 [twice], 21 and 23 [twice]) with no factual support.  Likewise, plaintiff characterizes defendants’ testimony that his leg was taken for security reasons as “mere speculation and hearsay” (Memorandum, p. 11).  Plaintiff further asserts that there was “no justification” for taking his leg (Memorandum, pp. 17, 18, 20, 25) or for doing so as a punishment (Memorandum p. 19).  Plaintiff further asserts that

“Proof of intent [to discriminate] is not required to the standard suggested by Defendants, but is any event sufficient.”  (Memorandum, p. 8).  These assertions are completely unsupported by the record.

Caustic hyperbole is likewise substituted for fact.  In response to defendants’ assertion that Sternberg lied about having diabetes in order to get food, he characterizes this assertion as “disingenuous,” “reprehensible” and “inflammatory.”  (Memorandum, p. 5, fn 2).  Likewise, he asserts that “Defendants blatantly and gratuitously made Mr. Sternberg suffer unnecessary hardship and humiliation by [confiscating his leg]”.  (Memorandum, p. 10).  There is no support in the record for these characterizations.

D. The Use of Misleading Statements and Statements Contrary to the Record.

Several of plaintiff’s main points are either misleadingly stated or simply contrary to the testimony in the record.  For example, plaintiff alleges that he was cooperative in booking (Memorandum, pp. 2 [“Sternberg was cooperative and compliant throughout the booking process, other than at first only providing his first name.”], 12).On the contrary, while Sternberg was not physically violent, he was not at all cooperative.  Providing only his first name “at first” translates to a six-hour deferral from the booking process on a busy Saturday night at the jail, since jail staff could not book him without identifying him first.  His suggestion that they simply identify him as “1-2-3-4-5” (Sternberg Depo., p. 73) was anything but cooperative.  His refusal to give other personal information likewise impeded the booking process and he refused to sign his name, only printing his first name on all jail documents in block letters.  (Sternberg Depo., pp, 129-131, 140-141, 144-145).  Thus, his assertion that he was “cooperative and compliant throughout the booking process” is clearly contrary to the record. 

Sternberg likewise asserts that his prosthetic leg was in no way dangerous (Memorandum, pp. 4-5 [the leg “only contained several small metal components including very short bolts and a vertical piece above the ankle area, a clamp and receiving catch, and steel posts”])(5) is self-contradictory.  He further asserts that jail staff who were deposed could not recall other inmates having been required to remove prosthetic legs (Memorandum, p. 6).  He neglects to inform this court, however, that he was provided, pursuant to his discovery request, with a list of previous inmates whose artificial limbs had been confiscated.  The implication that he was the first inmate to be so treated is thus based on selective use of facts. (6)

4 Plaintiff also refers to this as an “initial refusal,” which implies that it was momentary.  Memorandum, p. 21, fn. 9.

(5) Emphasis supplied; by this standard, a medieval mace would not be dangerous.

Perhaps Sternberg’s most obvious departure from documented fact is his claim that he suffers from diabetes.(7)  Plaintiff continues to maintain this position (Memorandum, p. 5, fn 2; Declaration, ¶ 2 [in which plaintiff says that he is “terribly offended” at the assertion that this claim is untrue]).  Plaintiff insists on the truth of this representation despite never having been tested for, diagnosed with, or treated for diabetes, which requires careful medical attention and management.  Rather, he insists that he has diagnosed and treated himself for it.  (Memorandum, p. 5; Declaration, ¶ 5).

In summary, plaintiff has failed to create a genuine issue of material fact, despite disputing minor matters and frequently substituting conclusory language for facts.(6)

(6) Plaintiff likewise asserts that defendants have produced no evidence of a prosthetic leg being used as a weapon.  Plaintiff made no discovery request for any such proof; however, examples occur.  See story from April 5, 2007 New York Times, which describes a distraught Iraq war veteran threatening a state trooper with his prosthetic leg, attached hereto as Exhibit 27.

In addition, the idea of a prosthetic leg as a weapon is not new in literature.  See, for example, “The Sign of Four” by Sir Arthur Conan Doyle (originally published in 1890), in “The Complete Sherlock Holmes,” which contains the following passage at p. 155:

“. . .I saw my chance of escape [from an island prison near Australia.]”

“. . . At the night named he had his boat at the wharf.  As it chanced, however, there was one of the convict-guard down there—a vile Pathan [an Afghanistan ethnic] who had never missed a chance of insulting and injuring me.  I had always vowed vengeance, and now I had my chance.  It was as if fate had placed him in my way that I might pay my debt before I left the island.  He stood on the bank with his back to me, and his carbine on his shoulder.  I looked about for a stone to beat out his brains with, but none could I see.”

“Then a queer thought came into my head and showed me where I could lay my hand on a weapon.  I sat down in the darkness and unstrapped my wooden leg.  With three long hops I was on him.  He put his carbine to his shoulder, but I struck him full, and knocked the whole front of his skull in.  You can see the split in the wood now where I hit him.  We both went down together, for I could not keep my balance; but when I got up I found him still laying quiet enough.  I made for the boat, and in an hour we were well out to sea.”

(7) This claim was made in an attempt to get a sandwich at a time when food was not normally being served in the jail.  (Sternberg depo. pp. 117, 118; medical note attached to Defendants’ Memorandum in Support as Exhibit 14.)

II. PLAINTIFF HAS FAILED TO REBUT DEFENDANTS’ LEGAL DEFENSES.

A. ADA Claim.

Plaintiff has produced no evidence of denial of access to any program, activity or benefit at the Hennepin County jail; his repeated assertions of such a denial (Memorandum, pp. 8, 9, 10) are without factual support, and therefore do not create a genuine issue of material fact.  Plaintiff clearly admitted that there was no such denial Depo., pp. 162-163, 164.  The absence of this essential fact is, by itself, dispositive of his ADA claim.

Sternberg further claims that he was denied a reasonable accommodation.  Memorandum, pp. 13-14.  This argument is likewise without support in the record; Sternberg was immediately provided with a wheelchair upon confiscation of his leg, and was timely provided with an ADA-compliant cell.  He has produced no authority that these accommodations are insufficient, and the chief jail nurse testified that they are compliant with applicable standards.  (Dageford Depo., p. 37).

Plaintiff’s next argument (Memorandum, pp. 14-16) is that “the evidence sufficiently demonstrates defendants’ intent.”  Plaintiff, however, confuses intent to discriminate, which is actionable, with intent to confiscate the leg, which is not.  He devotes almost all of his argument to showing that the confiscation itself was intentional, a point on which there is no disagreement.  Plaintiff has not, however, produced any evidence of intent to discriminate, much less of deliberate indifference (i.e., disregard of a serious medical need).  His attempt to create an ADA claim therefore likewise fails.

B. Plaintiff’s § 1983 Claims.

Plaintiff begins his argument of this point by stating that “The complaint states valid claims under § 1983.”  Memorandum, p. 16.  He likewise cites cases that decide Rule 12 motions, i.e., that improper confiscation of a detainee’s property states a

claim for violation of the 4th Amendment.  However, this is a Rule 56 motion, and plaintiff appears misdirected in attempting to show that he has stated a claim, rather than proved one.

Plaintiff further argues (Memorandum, pp. 19-21) that his right to due process was violated.  As with his previous arguments, however, he argues this claim (arbitrary taking of property and subjecting him to improper punishment) without reference to any substantive facts to support them.  Again, plaintiff’s arguments appear more directed to a Rule 12 motion than a Rule 56 motion. 

Likewise, for his assertion (Memorandum, pp. 19-20) that “There is no substantive evidence in the record to demonstrate that taking Mr. Sternberg’s leg had any rational relationship to security, or that such was actually defendants’ motive” is strongly contradicted by the record.  This assertion ignores all testimony about both the circumstances surrounding his entry to the jail and his persistent (6 hours) noncompliant conduct.  Again, plaintiff substitutes broad, conclusory statements for reliance on specific facts adduced in the record.

C. Plaintiff’s Objections to Defendants’ Assertion of Qualified and Official Immunity.

Plaintiff makes several arguments in opposition to these defenses.  He first states (Memorandum, p. 21) that “defendants have failed to provide any authority whatsoever that the defense of qualified immunity applies to Mr. Sternberg’s ADA claim.” This argument ignores the fact that plaintiff has provided no support whatever for the claim itself (see argument, supra, pp. 10-11).

Plaintiff next argues, again by way of condemnatory generality rather than reliance upon facts, that defendants’ actions were “clearly unreasonable” (Memorandum, pp. 22-23).  While plaintiff states the correct legal standard, he provides no factual basis for any finding of a violation of it.

Plaintiff further argues that defendants cannot establish official immunity because “a jail policy made the confiscation of Mr. Sternberg’s leg nondiscretionary . . .” (Memorandum, p. 23).  However, plaintiff provides no factual support or legal authority in support of this assertion; while citing cases dealing with the issue, he simply reasserts that a single jail policy is absolute, that jail staff had no authority to deviate from his construction of it, and that the confiscation of his leg was therefore ministerial rather than discretionary.  This argument overlooks the authority of the deputy jail staff to make necessary judgments, from moment to moment, about what is required to keep the jail safe. 

Finally, plaintiff further argues that there is “evidence” that defendants acted with malice or willfulness (Memorandum, pp. 24-25) but provides none.  As with previous arguments, plaintiff correctly defines the standard, and then simply asserts that it was violated.

CONCLUSION

Plaintiff has not provided this court with a sufficient basis either to create a genuine issue of material fact or to support his opposition to the substantive defenses raised by these defendants.  For this reason, defendants respectfully request that this court grant their motion for summary judgment.

Respectfully submitted,

MICHAEL O. FREEMAN

Hennepin County Attorney

Dated:  March 12, 2008 By: s/Michael B. Miller

MICHAEL B. MILLER (73349)

Sr. Assistant County Attorney

Attorneys for County of Hennepin

2000A Government Center

Minneapolis, MN  55487

Telephone:  (612) 348-5488

Fax No:  (612) 348-8299

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