Peterson v. Washington County Jail

            UNITED STATES DISTRICT COURT                             
                DISTRICT OF MINNESOTA                                


Brandon Robert Peterson,                 Civil No. 18-2640 (DWF/ECW)      

          Plaintiff,                                                 

v.                                                                        

Commander Roger Heinen, in his                    MEMORANDUM              
individual capacity; Sergeant Brandon        OPINION AND ORDER            
Olson, in his individual capacity; Sergeant                               
Nicholas Klinkner, in his individual                                      
capacity; Sergeant Troy Jorgenson, in his                                 
individual capacity; Washington County,                                   
MN; Sheriff Dan Starry; John Warneke,                                     
Assistant Jail Administrator in his                                       
individual capacity; Officer KCee Cahill,                                 
in his individual capacity; Sergeant Frank                                
Capra, in his individual capacity; Officer                                
Dan Rein, in his individual capacity;                                     
Sergeant David Frantsi, in his individual                                 
capacity; Officer Jennifer Glassmaker, in                                 
her individual capacity; Corporal Rebecca                                 
Dyck, in her individual capacity; Nurse                                   
Melinda Leibel, “Mindy” in her individual                                 
capacity; Officer Chad Gaikowski, in his                                  
individual capacity; Officer John Roberto,                                
in his individual capacity; Officer Vincent                               
Scheele, in his individual capacity; Officer                              
Garrett Kleinendorst, in his individual                                   
capacity; Officer De La Rosa, in his                                      
individual capacity; Stephanie Kaphing, in                                
her individual capacity; John Does 1-10, in                               
their individual capacities,                                              

          Defendants.                                                
                    INTRODUCTION                                     
This matter is before the Court on Defendants’ Motion for Summary Judgment 
after remand by the Eighth Circuit Court of Appeals.  (Doc. No. 158.)  For the reasons set 

forth below, the Court grants in part and denies in part the motion.      
                     BACKGROUND                                      
The facts of this case have been set forth in prior orders by the Court and the 
Eighth Circuit Court of Appeals.  (Doc. Nos. 220, 239, 244.)  In short, Plaintiff Brandon 
Robert Peterson (“Plaintiff” or “Peterson”) suffers from bipolar disorder and was 

incarcerated at the Washington County Jail (the “Jail” or “WCJ”) from February 4, 2018 
to May 24, 2018.  Based on the conditions and events during his incarceration, Plaintiff 
brought various constitutional and state-law claims.                      
Relevant to the present motion, in an order dated February 18, 2022 (the 
“February 2022 Order”), the Court denied qualified immunity for the alleged use of 

excessive force and failure to intervene as to Sergeants Nicholas Klickner, Brandon 
Olson, and David Frantsi, as well as Officers Anthony De La Rosa, Rebecca Dyck, KCee 
Cahill, Jennifer Glassmaker, and Vincent Scheele.  These claims related to incidents that 
occurred at WCJ in 2018 on February 19, February 23, February 25, March 24, May 1, 
and May 19.  The facts of each incident are set out in the February 2022 Order and the 

Eighth Circuit Opinion at Peterson v. Heinen, 

 (8th Cir. 2023).  In the 
February 2022 Order, the Court also denied qualified immunity to Commander Roger 
Heinen, and Nurses Stephanie Kaphing and Melinda Leibel on Plaintiff’s claim that they 
acted with deliberate indifference to medical needs and denied qualified immunity to 
defendants on Plaintiff’s conditions-of-confinement claim.  The Court deferred ruling on 
state-law and Monell claims.                                              
On appeal, the Eighth Circuit Court of Appeals reversed portions of the 

February 22 Order and remanded the case for further consideration.  Relevant to the 
present motion, the Eighth Circuit reversed the denial of summary judgment as to all of 
the incidents of alleged excessive force except for the incident that occurred on May 19 
and as to Plaintiff’s failure to intervene and deliberate indifference claims.1  Based on the 
Eighth Circuit’s ruling, Plaintiff’s claim of excessive force asserted against Olson for his 

actions during the May 19 incident remains for trial.2  In addition, and relevant to the 
pending motions, the Eighth Circuit vacated the Court’s denial of summary judgment on 
Plaintiff’s conditions-of-confinement, state-law, and Monell claims, all of which are now 
before the Court on Defendants’ motion for summary judgment.3             



1    The Eighth Circuit also reversed the Court’s denial of summary judgment and 
dismissed Sergeants Troy Jorgenson and Frank Capra and Officer Chad Gaikowski from 
this action.                                                              
2    Plaintiff alleges that on May 19, Olson used excessive force when he deployed 
chemical spray.  The record shows that before Olson used the spray, Olson had demanded 
Plaintiff’s belongings because Plaintiff had been disruptive for hours.  Olson claims that 
Plaintiff refused to comply, justifying his use of the chemical spray.  Plaintiff’s 
compliance, or lack thereof, creates a genuine issue of material fact.  See Peterson, 

.                                                               
3    The Eighth Circuit did not disturb the Court’s dismissals of Counts 5-8 or the 
dismissals of claims against Defendants Dan Rein, Garrett Kleinendorst, John Roberto, 
and Dan Starry.                                                           
While the Court has already laid out the relevant facts in the February 2022 Order, 
the Court restates some relevant facts here:                              
Plaintiff had been incarcerated at the Jail previously and Plaintiff asserts 
that Jail staff had provided Plaintiff with medication, including    
antipsychotics, mood stabilizers and anxiety medication.  Plaintiff has 
pointed to evidence that some Defendants remembered Plaintiff.  Further, 
Plaintiff had been civilly committed before his incarceration.       

On February 4, 2018, Plaintiff arrived at the Jail.  [Officer Dyck] recalled 
that Plaintiff was stumbling, not able to stand on his own, and appeared to 
be on some kind of illicit drug.  In addition, Plaintiff was placed in a cell 
without receiving a mental health screening.                         

On February 7, 2018, [Kaphing] performed an “Intake” evaluation.     
Kaphing confirmed Plaintiff’s self-reported mental health diagnoses and 
prior suicide attempts.  Plaintiff denied taking medications, but reported a 
history of depression, anxiety, bipolar disorder, and “[Redacted]” which 
Kaphing interpreted as “[Redacted].”  Kaphing noted that Peterson    
admitted to recently using “dope.”  Kaphing did not review Plaintiff’s 
medical records or refer Plaintiff to a Qualified Mental Health Provider 
(“QMHP”), and instead documented that Plaintiff was “aware of how to 
contact medical.”                                                    

On February 12, 2018, Plaintiff was reprimanded by a corrections officer 
and Plaintiff grew agitated, yelled, and exposed his genitalia.  Plaintiff was 
placed in a segregation unit.                                        

On February 14, 2018, Plaintiff fractured his hand by slamming it into the 
walls and door of his cell, and he injured his face while jumping from the 
top of his cell sink. That day, Jail nursing supervisor [Leibel], who had 
conducted a mental health assessment earlier that day, prescribed 100mg of 
Hydroxyzine, an anti-anxiety medication.  The next day, Plaintiff was 
prescribed sertraline, a drug commonly used to treat depressive disorders. 
On February 16, 2018, Plaintiff requested and was prescribed . . . an 
antipsychotic.  Then on February 19, 2018, Plaintiff was placed on high 
observation or special close watch based on behavior, including homicidal 
statements, belligerent self-harm, and weapon procurement.           

On February 20, 2018, [Heinen] contacted a Washington County Attorney 
to determine whether civil commitment proceedings had been initiated for 
Peterson.  In that same email chain, Leibel indicated that the medical unit at 
the Jail has “done all we can do to help him” and that [h]e won’t take the 
meds he needs.”  [Heinen] and Leibel did not move Plaintiff to a higher 
level of care at this time.                                          

On February 22, 2018, [Dresel], an Advanced Practice Registered Nurse 
and the Jail’s only QMHP, conducted a psychiatric diagnostic evaluation on 
Plaintiff.   [Dresel] recorded Plaintiff’s mental health status and history of 
mental illness, prescribed medications, including antipsychotics, and 
scheduled a follow-up.  Dresel prescribed trazadone, and either [Redacted] 
or an increased dosage of [Redacted].                                

On March 2, 2018, the County Attorney charged Peterson with criminal 
damage to property related to acts of destruction at the Jail on or about 
February 19-22, 2018 and contempt of court.  That same day, Plaintiff was 
convicted of contempt of court and sentenced to 90 days in Jail.     

On March 7, 2018, Plaintiff appeared in court on the property-damage 
charge, during which the Court ordered a Rule 20 psychological evaluation.  
On March 29, Dresel and Dr. Jensen discontinued Plaintiff’s medications 
after Plaintiff reportedly snorted his pills.                        

. . .                                                                

A Court-appointed forensic psychologist, Dr. Jill Rogstad, conducted a 
court-ordered competency evaluation.  In a report dated April 11, 2018, Dr. 
Rogstad reported a diagnosis of “Unspecified Bipolar Disorder” and   
recommended civil commitment for mental illness and chemical         
dependence.                                                          

On April 26, 2018, Plaintiff was transported to Regions Hospital for a 
“crisis evaluation.”  Leibel testified that Plaintiff was sent to the hospital to 
“see if they could do anything else that we had not done yet, and also to 
give staff a break.”  Leibel also testified that [Heinen] made the decision to 
send Plaintiff to Regions.  At Regions, Plaintiff was diagnosed with 
antisocial personality disorder, manic behavior, and a fracture in his left 
hand.  In addition, substance abuse disorders were noted.  . . .     

In addition, Plaintiff refused [Redacted] an antipsychotic medication.  The 
Hospital Records also contain information provided by Jail staff, including 
Leibel.  Leibel told hospital staff that Plaintiff did not always take his 
medication and because Plaintiff once snorted his medication, he was no 
longer receiving it in Jail.  In addition, it was noted that medical staff at the 
Jail were not in favor of sending Plaintiff to the hospital and dismissed 
Plaintiff as manipulative.  Upon discharge from Regions Hospital, Plaintiff 
was prescribed [Redacted] and [Redacted].  Plaintiff returned to Jail and to 
segregation.                                                         

On May 8, 2018, Washington County petitioned for Plaintiff to be civilly 
committed due to mental illness.  The court determined that Peterson was 
incompetent and suspended all ongoing criminal proceedings until Peterson 
completed civil commitment.                                          

On May 24, Plaintiff was transferred to Anoka Metro Regional Treatment 
Center (“AMRTC”) and committed due to mental illness by court order. 
The treating physician at AMRTC, Dr. Matthew Kruse, noted that Plaintiff 
had an extensive history of hospitalization for mental health and a criminal 
history, and that while Plaintiff was in jail, he was “disinhibited and 
aggressive,” non-adherent with medication, engaged in self-harm, and 
expressed delusional beliefs.  Dr. Kruse diagnosed Plaintiff with Bipolar I 
Disorder with manic features and noted that he was unable to perform a 
comprehensive evaluation upon admission because of Plaintiff’s “severely 
decompensated mental condition.”  While at AMRTC, Plaintiff was      
prescribed additional medications, and at the time of discharge was on two 
anti-psychotics.  Plaintiff remained at AMRTC until August 16, 2018, 
when he was transferred to a Competency Restoration Program at the   
Minnesota Security Hospital.  Plaintiff was treated at St. Peter Regional 
Treatment Center until January 23, 2019.                             

(Doc. No. 220 at 3-8 (citations and footnotes omitted and with redactions).) 

                      DISCUSSION                                     
Summary judgment is proper if there are no disputed issues of material fact and 
the moving party is entitled to judgment as a matter of law.  Fed. R. Civ. P. 56(a).  The 
Court must view the evidence and the inferences that may be reasonably drawn from the 
evidence in the light most favorable to the nonmoving party.  Enter. Bank v. Magna Bank 
of Mo., 

 (8th Cir. 1996).  However, as the Supreme Court has stated, 
“[s]ummary judgment procedure is properly regarded not as a disfavored procedural 
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 
‘to secure the just, speedy and inexpensive determination of every action.’”  Celotex 
Corp. v. Catrett, 

 (1986) (quoting Fed. R. Civ. P. 1).   
The moving party bears the burden of showing that there is no genuine issue of 

material fact and that it is entitled to judgment as a matter of law.  Enter. Bank, 

.  The nonmoving party must demonstrate the existence of specific facts in the 
record that create a genuine issue for trial.  Krenik v. County of Le Sueur, 

 (8th Cir. 1995).  A party opposing a properly supported motion for summary 
judgment “may not rest upon mere allegations or denials of his pleading, but must set 

forth specific facts showing that there is a genuine issue for trial.”  Anderson v. Liberty 
Lobby, Inc., 

 (1986).                                    
A.   Conditions of Confinement—Count 1                               
Plaintiff alleges that the conditions of his confinement at WCJ, when considered in 
toto, deprived him of clearly established constitutional rights.  This claim is asserted 

against Heinen, Warneke, Olson, Klinkner, Cahill, Frantsi, Glassmaker, and Dyck.4   
Plaintiff was placed in segregation for nearly 100 days, and while in segregation, 
he was confined to his cell for 23 hours a day, 7 days a week.  In addition, Plaintiff 
asserts that while he was under “Care Plans,” he was subjected to additional limitations, 
including the deprivation of ordinary privileges (out-of-cell time, toilet paper, certain 

articles of clothing, books, the ability to file grievances, pencils, phone calls, showers, 

4    Count 1 was dismissed as asserted against Scheele and De La Rosa.  (Doc. 
No. 258 at 1.a.)                                                          
access to the canteen, and social visits), and that on several occasions, Plaintiff’s out-of-
cell time was revoked and Plaintiff could not exercise, shower or socialize.  In addition, 
Plaintiff points to evidence that, on several occasions, he was placed in an intake (or 

transport) cell that did not have a toilet, bed, or sink, that he was not always 
decontaminated after the use of chemical spray, and that, on occasion, he was denied 
medication and phone calls.  Plaintiff further asserts that Defendants knew of his mental 
illness.                                                                  
Defendants point to record evidence that before Plaintiff was incarcerated in 2018, 

he had been civilly committed several times and that he had received varied diagnoses.  
In addition, on February 12, 2018, Plaintiff was placed in disciplinary segregation 
because of significant behavior issues, and he remained in segregation for most of his 
2018 incarceration until he was transferred to civil commitment on May 24, 2018.  
WCJ’s contact physician prescribed Plaintiff an antipsychotic medication on February 16, 

2018.  As detailed in the Court’s February 2022 Order, Plaintiff engaged in repeated acts 
of destructive and disruptive behavior.  For example, Plaintiff made homicidal 
statements, engaged in self-harm, and attempted to procure items that could be used as 
weapons.  In addition, Plaintiff repeatedly snorted or misused medication, covered his 
cell camera with toilet paper, damaged his sprinkler head, flooded his cell, resisted, 

threatened, cursed and spit at officers, removed a metal bar from a floor grate and a brick 
from his cell, refused to turn over objects when requested, attempted to rip his mattress, 
returned his dinner bag to staff full of his own feces, and generally displayed disruptive 
behavior.  Defendants maintain that Plaintiff’s behavior was the reason restrictions were 
placed on Plaintiff during his stay, and in particular, to protect Plaintiff, other inmates, 
and the correctional officers.                                            
Defendants maintain that qualified immunity bars Plaintiff’s conditions-

of-confinement claim.  The doctrine of qualified immunity protects state actors from civil 
liability when their “conduct does not violate clearly established statutory or 
constitutional rights of which a reasonable person would have known.”  Harlow v. 
Fitzgerald, 

 (1982).  The defense provides “ample room for mistaken 
judgments” as it protects “all but the plainly incompetent or those who knowingly violate 

the law.”  Malley v. Briggs, 

 (1986).  To overcome the defense of 
qualified immunity, a plaintiff must show that:  “(1) the facts, viewed in the light most 
favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory 
right; and (2) the right was clearly established at the time of deprivation.”  Parrish v. 
Ball, 

 (8th Cir. 2010) (quoting Howard v. Kansas City Police Dep’t., 

 (8th Cir. 2009)).  In determining whether the constitutional right was 
clearly established at the time of the conduct, the Court must ask whether the contours of 
the applicable law were “‘sufficiently clear’ that every ‘reasonable official would [have 
understood] that what he is doing violates that right.’”  Ashcroft v. al-Kidd, 

, 
741 (2011) (alteration in original) (quoting Anderson v. Creighton, 

 

(1987)).  A plaintiff is not required to cite a case directly on point—it is enough if 
“controlling authority” or a “a robust ‘consensus of cases of persuasive authority’” puts 
the “constitutional question beyond debate.”  

 at 741-42 (quoting Wilson v. Layne, 

 (1999)).                                                
The Eighth Amendment prohibits “cruel and unusual punishments,” and requires 
prison officials to provide humane conditions of confinement.  U.S. Const. amend. VIII; 
Farmer v. Brennan, 

 (1994).  The conditions under which an inmate is 

confined are subject to scrutiny under the Eighth Amendment using the deliberate 
indifference standard.  

 (citing Helling v. McKinney, 

 (1993).)  
Prison officials must provide humane conditions of confinement and are required to 
“ensure that inmates receive adequate food, clothing, shelter, and medical care.”  Farmer, 

; see also Jackson v. Mike-Lopez, Civ. No. 17-4278, 

, 

at *2 (D. Minn. Dec. 20, 2018).  “The Constitution ‘does not mandate comfortable 
prisons . . . .’”  Farmer, 

 (quoting Rhodes v. Chapman, 

 
(1981)).                                                                  
“The deliberate indifference standard has two components:  an objective 
component and a subjective component.”  Thomas-El v. Francis, 

 

(8th Cir. 2024).  The objective component is satisfied by a showing a deprivation that 
results “in the denial of ‘the minimal civilized measure of life’s necessities.’”  

 
(quoting Farmer, 

).  The subjective component requires a showing that 
“the official knows of and disregards an excessive risk to inmate health and safety.”  

 
(quoting Farmer, 

).  “[D]eliberate indifference includes something more 

than negligence but less than actual intent to harm; it requires proof of a reckless 
disregard of the known risk.”  Reynolds v. Dormire, 

 (8th Cir. 2001) 
(alteration in original) (quoting Crow v. Montgomery, 

 (8th Cir. 2005)). 
“Whether a prison official had the requisite knowledge of a substantial risk is a question 
of fact subject to demonstration in the usual ways, including inference from 
circumstantial evidence.”  Farmer, 

.  In the context of a qualified 
immunity analysis, if the two prongs of the deliberate indifference standard are satisfied, 

the Court then considers whether the law clearly established the inmate’s right vis a vis 
the alleged deprivation.                                                  
The parties have submitted competing views of the case law on the question of 
whether the conditions at WCJ deprived Plaintiff of his Eighth Amendment rights.  From 
the relevant authority, the Court discerns the following parameters of the law.  “Some 

conditions of confinement may establish an Eighth Amendment violation ‘in 
combination’ when each would not do so alone, but only when they have a mutually 
enforcing effect that produces the deprivation of a single, identifiable human need such as 
food, warmth, or exercise . . . .”  Wilson v. Seiter, 

 (1991) (emphasis 
omitted) (using the example of a low cell temperature at night combined with a failure to 

provide blankets).  However, “[n]othing so amorphous as ‘overall conditions’ can rise to 
the level of cruel and unusual punishment when no specific deprivation of a single human 
need exists.”  

.                                                
In Rhodes v. Chapman, the Supreme Court required a serious deprivation of the 
minimal civilized measure of life’s necessities, not simply “restrictive and even harsh” 

conditions, to be unconstitutional.  

.  Such deprivations have included:  
deprivation of physical space via overcrowding combined with lack of out-of-cell time, 
Campbell v. Cauthron, 

 (8th Cir. 1980) (explaining that it is 
unconstitutional to confine pretrial detainees to small, overcrowded spaces—less than 18 
square feet per detainee—with no recreational activities for all but a few hours each 
week); deprivation of clothing, Maxwell v. Mason, 

 (8th Cir. 1981) 
(affirming district court’s findings that confining an inmate to solitary confinement in 

only undershorts and no bedding constituted cruel and unusual punishment); and 
deprivations of sanitary conditions, Whitnack v. Douglas County, 

 
(8th Cir. 1994) (recognizing that reasonably adequate sanitation and the ability to dispose 
of one’s waste are basic identifiable human needs, but finding that the record does not 
show that “deplorable” conditions rose to the level of a constitutional violation given the 

brevity of confinement).                                                  
Courts have also found that long-term confinement in administrative segregation, 
and in particular of those suffering mental illness, may constitute cruel and unusual 
punishment.  See, e.g., Williams v. Norris, 

 (8th Cir. 2008) (in due 
process analysis, finding nine years in administrative segregation “constitutes an atypical 

and significant hardship”); Madrid v. Gomez, 

 (N.D. Cal. 1995) 
(finding that extreme isolation and environmental deprivation over extended periods of 
time did not inflict cruel and unusual punishment on all inmates but did deprive mentally 
ill inmates “of a minimal civilized level of one of life’s necessities”); Ruiz v. Johnson, 

 (S.D. Tex. 1999) (finding that prolonged placement of mentally 

ill prisoners in administrative segregation caused cruel and unusual suffering), rev’d on 
other grounds, 

 (5th Cir. 2001); Palakovic v. Wetzel, 

 
(3d Cir. 2017) (finding that allegations that a mentally ill prisoner was placed in an 
extended stay in isolation states a plausible claim that plaintiff experienced inhumane 
conditions of confinement); Braggs v. Dunn, 

 (M.D. Ala. 
2017) (“The serious psychological harm stemming from segregation is even more 
devastating for those with mental illness.”).                             

On the other hand, Defendants cite to authority to support a finding that, on the 
facts of this case, they did not violate any clearly established right of Plaintiff’s via the 
conditions of his confinement.  In Crane v. Utah Department of Corrections, 

 (10th Cir. 2021), the Tenth Circuit reviewed a plaintiff’s conditions-of-confinement 
claim that involved 154 days of punitive isolation of a prisoner who suffered from a 

diagnosed mental illness (psychosis and major depressive disorder).  Id. at 1301.  The 
Tenth Circuit found that it is not clearly established that housing an inmate with a serious 
mental illness in solitary confinement constitutes cruel and unusual punishment.  Id. 
at 1306-07 (holding that the general use of punitive isolation to discipline prisoners who 
happen to be mentally ill does not violate clearly established law).      

The cases share a common theme.  They stand for the proposition that 
isolating mentally ill inmates in conditions that seriously and predictably 
exacerbate their mental illness is cruel and unusual when the official has 
subjective knowledge of both the mental illness and the impact of isolation.  
Although these trial court decisions may portend future legal developments, 
they do not constitute clearly established law capable of overcoming 
qualified immunity here.                                             
Id. at 1306 (emphasis added).  The Court further explained that the plaintiff did not point 
to on-point decisions from any circuit court or the Supreme Court that hold punitive 
isolation of mentally ill inmates violates the Eighth Amendment.5         

With respect to Plaintiff’s claim that he was deprived of other necessities, such as 
clothing, Defendants cite to Williams v. Delo, 

 (8th Cir. 1995).  In 
Williams v. Delo, after an inmate attacked his wife during a prison visit, he was held in a 
strip cell for four days without clothes and with the water to his cell shut off.  

 at 443-
44.  He had “a light, a toilet, and a sink, but the mattress had been removed.”  

.  

He was given three meals a day.  

.  The Eighth Circuit held that plaintiff failed 
to make a showing that he was denied “the minimal civilized measure of life’s 
necessities” and “that prison officials were deliberately indifferent.”  

; see also 
Stickley v. Byrd, 

 (8th Cir. 2013) (finding under Fourteenth 
Amendment analysis, limiting access to toilet paper does not violate a clearly established 

right where inmate exhausted his supply of toilet paper before receiving his weekly 
allotment, particularly where plaintiff could shower).                    

5    Defendants also cite to Eighth Circuit cases that involved periods of segregation 
for administrative or disciplinary reasons that did not violate the Constitution.  See 
Portley-El v. Brill, 

 (8th Cir. 2002) (finding in due process 
analysis, 30 days in punitive segregation is not an atypical or significant hardship); 
Rahman X v. Morgan, 

 (8th Cir. 2002) (holding that 26 months in 
segregation and the resulting deprivations are not “sufficiently serious” to establish an 
Eighth Amendment violation); Hemphill v. Delo, 

, 208 (8th Cir. 1997) 
(unpublished table decision) (finding in a due process analysis, 30 days of disciplinary 
segregation and 290 days of administrative segregation is not an “atypical and 
significant” hardship).                                                   
Defendants rely heavily on record evidence showing that Plaintiff was disruptive, 
threatening, and repeatedly damaged jail property.  There is no dispute that Plaintiff 
stuffed clothing in his toilet and that he covered the camera in his cell with toilet paper.  

The record also demonstrates that after receiving a bag-meal, Plaintiff did not return a 
spoon and claimed to have flushed it down the toilet, and that Plaintiff damaged his cell 
in other ways, such as by removing a brick and metal grate.  In addition, the record shows 
that Plaintiff often threatened, spit at, and resisted jail officers.  Defendants maintain that 
they took measures to address Plaintiff’s safety, as well as the safety of correctional 

officers and other inmates, and to address Plaintiff’s violation of jail rules.  For example, 
prison officials gave Plaintiff anti-suicide gowns that could not be easily torn and stuffed 
in his toilet.  In addition, Plaintiff was provided toilet paper on a limited basis so that he 
would not be able to use it to cover his camera.  And when Plaintiff became disruptive or 
if they were concerned about the possibility of self-harm (i.e., when he did not return 

utensils), prison officials would remove Plaintiff from his cell and place him temporarily 
in an intake cell.                                                        
Here, Plaintiff’s conditions-of-confinement claim centers on the prolonged period 
of segregation, lack of out-of-cell time, deprivation of clothing, and adequate hygiene, all 
while he was suffering from a serious mental illness.  The record however shows that 

Plaintiff was placed in segregation for legitimate penological reasons, namely for his 
safety, the safety of correctional officers, the safety of other inmates, and because 
Plaintiff repeatedly violated jail rules and engaged in unsafe and disruptive behavior.  
After careful review, and in keeping with the Eighth Circuit’s finding on appeal that 
Plaintiff’s behavior implicated legitimate prison concerns, the Court concludes that the 
imposition of segregation in and of itself (either administrative or disciplinary) for the 
length of time here did not violate Plaintiff’s Eighth Amendment rights considering the 

facts of Plaintiff’s behavior in custody.  The fact that Plaintiff suffers from a mental 
illness is certainly relevant and could alter that conclusion.  But the fact that Plaintiff 
suffers from a mental illness does not compel a finding of unconstitutional conditions.  
See, e.g., Loving v. Roy, Civ. No. 12-551, 

, at *7 (D. Minn. Sept. 3, 
2013), aff’d, 

 (8th Cir. 2014 ) (citing Haggins v. Minn. Comm’r of 

Corr., Civ. No. 10-1002, 

, at *1-9 (D. Minn. Feb. 14, 2012) (finding 
that even where the prisoner suffers from “paranoid schizophrenia and schizoaffective 
disorder,” 19 months of segregation did not support a finding of an atypical and 
significant hardship in violation of the due process clause), report and recommendation 
adopted, 

 (D. Minn. March 22, 2012)).  Moreover, while the record 

establishes that Plaintiff was deprived of certain items of clothing, blankets, medication, 
toilet paper, and other necessities, these items were restricted because of Plaintiff’s 
behavior and for legitimate prison concerns.                              
Having carefully considered the evidence in the record and in light of the Eighth 
Circuit’s remand, the Court finds that the record does not create a triable issue of fact as 

to whether Plaintiff suffered deprivations serious enough in the conditions of his 
confinement to support a constitutional claim.  And even if Plaintiff could establish an 
Eighth Amendment violation based on the placement of time in segregation or the 
deprivation of clothing or other necessities, any such right was not clearly established as 
the constitutional question was not “beyond debate.”6                     
Accordingly, Defendants are entitled to qualified immunity on Plaintiff’s 

conditions-of-confinement claim and their motion for summary judgment on this claim is 
granted.                                                                  
B.   Monell Claim—Count IV                                           
Plaintiff alleges a Monell claim against Washington County.  A “municipality 
cannot be held liable solely because it employs a tortfeasor—or, in other words, a 

municipality cannot be held liable under § 1983 on a respondeat superior theory.”  
Monell v. Dep’t of Soc. Servs. of N.Y., 

 (1978) (emphasis omitted).  A 
municipality may be held liable under § 1983 if it, “under color of any statute, ordinance, 
regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any 
citizen of the United States . . . to the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws.”  

; see Monell, 

-
91.  Municipal liability exists “only where the municipality itself causes the constitutional 
violation.”  City of Canton v. Harris, 

 (1989) (emphasis omitted).  


6    The Court is mindful that it must consider the claim against each individual 
defendant—namely the Defendants implicated by Plaintiffs’ conditions-of-confinement 
claim— Frantsi, Heinen, Warneke, Glassmaker, Cahill, Olson, Klinkner, and Dyck.  
Because these individuals were involved in the events considered above, the Court 
determines that none of these individuals’ actions alone rise to the level of an Eighth 
Amendment violation, and that in any event, their actions in imposing restrictions on 
Plaintiff to accomplish legitimate penological goals did not violate a clearly established 
right.                                                                    
“[L]iability for a constitutional violation attaches only if the violation resulted from an 
official municipal policy, an unofficial custom, or a deliberately indifferent failure to 
train or supervise an official or employee.”  Tirado v. City of Minneapolis, 

, 840 (D. Minn. 2021); see also Bolderson v. City of Wentzville, 

 (8th Cir. 2016).                                                      
To support a claim for municipal liability, a plaintiff must establish a predicate 
constitutional violation even if he has not shown that an official is personally liable.  See 
Whitney v. City of St. Louis, 

 (8th Cir. 2019) (holding that the 

complaint fails to allege any constitutional violation arising out of a municipal policy); 
Webb v. City of Maplewood, 

 (8th Cir. 2018) (acknowledging that a 
municipality may be held liable for its unconstitutional policy or custom even when no 
official has been found personally liable for conduct under that policy or custom).  In 
Ivey v. Audrain County, 

 (8th Cir. 2020), the Eighth Circuit explained 

that a finding that no constitutional violation occurred would also result in a finding that 
no Monell liability attaches, but where officers are found to be immune only because they 
did not violate clearly established rights, then Monell liability could attach.  And in 
Speer v. City of Wynne, 

 (8th Cir. 2002), the Eighth Circuit explained: 
We do not suggest that municipal liability may be sustained where there has 
been no violation of the plaintiff’s constitutional rights as a result of action 
by the municipality’s officials or employees.  After all, a municipality can 
act only through its officials and employees.  However, situations may arise 
where the combined actions of multiple officials or employees may give 
rise to a constitutional violation, supporting municipal liability, but where 
no one individual’s actions are sufficient to establish personal liability for 
the violation.                                                       

 (citation omitted).                                            
Plaintiff argues that the Eighth Circuit’s decision has not mooted Plaintiff’s 
municipality liability claims under the following theories:  (1) Pembaur liability based on 

decisions on the conditions of confinement and deliberate indifference to Plaintiff’s 
serious mental illness; (2) WCJ’s “unofficial municipal custom” of deficiencies in the 
custody and care of mentally ill inmates; and (3) failure to train officers relating to the 
custody and care of inmates.  The Court considers these theories below.   
     1.   Pembaur Liability                                          

Plaintiff argues that there are genuine issues of material fact as to whether, under 
Pembaur v. City of Cincinnati, 

 (1986), Washington County is liable for 
harming Plaintiff through its official policies that created unconstitutional conditions of 
confinement and deliberate indifference.  Pembaur recognizes that municipal liability 
based on an “official policy” “may be imposed for a single decision by municipal 

policymakers under appropriate circumstances.”  Pembaur, 

.  Indeed, an 
official policy can be “inferred from a single decision taken by the highest officials 
responsible for setting policy in that area of the government’s business.”  City of St. 
Louis v. Praprotnik, 

 (1988); see also Pembaur, 

.  An 
official policy is “a deliberate choice of a guiding principle or procedure made by the 

municipal official who has final authority regarding such matters,” Mettler v. Whitledge, 

, 1204 (8th Cir. 1999), and is “intended to, and do[es], establish fixed plans 
of action to be followed under similar circumstances consistently and over time,” 
Pembaur, 

.                                              
Under Pembaur, municipal liability only attaches to actual policymaking—which 
is “a deliberate choice to follow a course of action [] made from among various 
alternatives by the official or officials responsible for establishing final policy with 

respect to the subject matter in question.”  

.  Thus, even if Heinen is eventually 
found to be a “final policymaker” (and assuming he is for purposes of this motion)7, the 
Court must determine whether Heinen engaged in actual official policymaking, as 
opposed to discretionary conduct, when creating the Care Plans.           
Plaintiff argues that Heinen’s creation of the Care Plans constituted official 

municipal policy that created unconstitutional conditions.  The Court disagrees.  In 
creating Plaintiff’s Care Plans, Heinen addressed day-to-day operations at WCJ, and in 
particular evaluated how to address Plaintiff’s significant behavioral and jail safety 
issues.  Heinen also reached out to the county attorney to seek civil commitment for 
Plaintiff.  These decisions were discretionary in nature.  See, e.g., Bell v. Wolfish, 

 (1979) (“Prison administrators . . . should be accorded wide-ranging 
deference in the adoption and execution of policies and practices that in their judgment 
are needed to preserve internal order and discipline and to maintain institutional 
security.”); Brenner v. Asfeld, Civ. No. 18-2383, 

, at *11-12 (D. Minn. 
June 4, 2019) (finding that an officer who failed to identify an inmate as a suicide risk 

and implement suicide prevention procedures was protected by official immunity under 

7    Plaintiff correctly points out that the Court previously reserved for trial the 
question of whether Heinen is considered a “final policymaker” for the purposes of 
Monell liability.  (Doc. No. 220 at 29.)                                  
state law because the actions were discretionary); Olson v. Ramsey County, 

 (Minn. 1993) (finding that a child protection social worker’s creation of 
Case Plan is discretionary and protected by official immunity); Balducci v. Mo. Dep’t of 

Corr., Civ. No. 21-4022, 

, at *4 (W.D. Mo. Sept. 15, 2021) (finding 
that the creation of policies for prison security and inmate safety, including “corrective 
actions,” are discretionary).  Thus, the Court concludes that even if Heinen is an official 
policymaker, his actions in creating Care Plans do not, as a matter of law, constitute 
official policymaking.  See Bolderson, 

 (noting that the fact a policymaker 

has discretion in the exercise of functions does not, without more, give rise to municipal 
liability based on the exercise of that discretion).  Heinen’s decisions related to creation 
and implementation of the Care Plans created specifically for Plaintiff cannot be 
considered official municipal policy for purposes of Monell liability.8   
Plaintiff also argues that Washington County is liable for harming Plaintiff 

through systemic policy deficiencies in the custody and care of mentally ill inmates that 
amounted to deliberate indifference.  Whether a jail official acted with deliberate 
indifference requires a two-prong analysis.  First, objectively, Plaintiff must establish that 
he suffered from a serious medical need.  Saylor v. Nebraska, 

 (8th Cir. 
2016).  Second, subjectively, Plaintiff must show that the defendants “actually knew of 

but deliberately disregarded his serious medical need.”  

 (quoting Scott v. Benson, 742 

8    In addition, as discussed above, Plaintiff has not made a showing that there is a 
predicate constitutional violation based on the Care Plans.  For this additional reason, the 
Monell claim based on the implementation of the Care Plans fails as a matter of law. 
F.3d 335, 340 (8th Cir. 2014)).  This requires a showing of a something more than gross 
negligence, something “akin to criminal recklessness.”  

 (quoting Scott, 742 F.3d at 
340).                                                                     

The Court already determined that Plaintiff suffers from a serious medical need, a 
finding that the Eighth Circuit did not disturb on appeal.  Peterson, 

.  The 
Court therefore considers whether Plaintiff can demonstrate that any of the Defendants 
knew of and disregarded that need.  Plaintiff submits that genuine issues of material fact 
exist both as to actions taken by individuals at WCJ and whether systemic deficiencies 

constitute deliberate indifference.  Plaintiff argues that fact issues remain as to whether 
Heinen, Dresel, Kaphing, and Doctor Joel Jensen committed constitutional violations via 
deliberate indifference, and also as to whether Heinen, Dresel and Kaphing were final 
policymakers and created systemic unconstitutional deficiencies.          
In its February 2022 Order, the Court found that a reasonable factfinder could 

conclude that Heinen, Leibel, and Kaphing deliberately disregarded Plaintiff’s serious 
medical need and reserved for trial the question of whether Heinen, Dresel, Kaphing and 
Jensen are “final policymakers” for purposes of Monell liability.  (Doc. No. 220 at 29, 
45-46.)  The Eighth Circuit, however, held that Heinen, Leibel, and Kaphing were 
entitled to qualified immunity and stated “[a]ll told, neither Gordon nor Buckley nor 

McRaven shows that Commander Heinen’s, Nurse Leibel’s, or Nurse Kaphing’s 
particular conduct violates the Eighth Amendment.”  Peterson, 

.  Because 
there is no underlying constitutional violation to support the Monell claim as to the 
actions of named Defendants Heinen, Leibel, and Kaphing, their conduct, therefore, does 
not support a finding of deliberate indifference against Washington County.   
The Court next considers the conduct of Jensen and Dresel, neither of whom are 

named defendants in this lawsuit.  Jensen and Dresel were Plaintiff’s contracted medical 
providers.  Dresel conducted Plaintiff’s initial psychiatric diagnostic evaluation.  Plaintiff 
argues that she was deliberately indifferent because she only met with him once.  (Doc. 
No. 251 at 22.)  In addition, Plaintiff argues that Jensen and Dresel were deliberately 
indifferent when they discontinued his medication on March 29, 2018.  (Id.) 

Municipal liability for the actions of these individuals will attach if they are found 
to be decisionmakers with final authority to establish municipal policy.  Pembaur, 

.  Plaintiff has not made the requisite showing that either of these contracted 
medical staff were policymakers for WCJ.  Indeed, Defendants have cited to persuasive 
authority to support a finding that Jensen’s and Dresel’s medical decisions in day-to-day 

medical care of Plaintiff do not constitute policymaking.  See Washington v. Esch, Civ. 
No. 17-6, 

, at *1 (D. Neb. May 24, 2017) (holding nurse’s  
discretionary authority regarding individual treatment plans did not make the County 
liable for her actions); Awalt v. Marketti, 

 (N.D. Ill. 2014) 
(holding jail nurse’s decisions in treating detainee medical conditions were “discrete 

exercises of discretion that nearly all professionals make every day”).  The Court 
concludes that Jensen’s and Dresel’s medical decisions were discretionary in nature and 
do not amount to official policymaking.  Therefore, there can be no Pembaur municipal 
liability for their actions.                                              
     2.   Unofficial Custom                                          
Plaintiff also argues that there were systemic deficiencies at the Jail that were so 
widespread that they constitute an unofficial policy or custom.  Plaintiff points to 

evidence that he claims shows a pattern of inadequate health screenings at intake, 
inadequate hours for the contracted qualified medical health professionals, inadequate 
record keeping and failure to track mentally ill inmates, failure to take mental health into 
account when using force and segregation as punishments, and failure to provide 
adequate mental healthcare.  Plaintiff submits that he has demonstrated a persistent and 

continuing pattern of unconstitutional conduct relating to the custody and care of 
mentally ill inmates.                                                     
An unofficial custom is a “practice [that] is so widespread as to have the force of 
law.”  Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 

 (1997).  An 
unofficial custom can be established through “a continuing, widespread, and persistent 

pattern of unconstitutional misconduct” that is “so pervasive among non-policymaking 
employees of the municipality that it effectively has the force of law.”  Bolderson, 

.  To establish Monell liability based on an unofficial custom, Plaintiff must 
show a widespread pattern of constitutional violations, that Washington County had 
notice of the custom and acted with deliberate indifference, and that Plaintiff’s injuries 

were caused by the custom.  Corwin v. City of Independence, Mo., 

 (8th 
Cir. 2016).                                                               
Here, Plaintiff has failed to make such a showing.  Plaintiff has not demonstrated 
an underlying constitutional violation to support the Monell claim.  Nor has he pointed to 
sufficient record evidence to show a widespread pattern of constitutional violations.  
Indeed, Plaintiff has not made a showing that any of the alleged systemic deficiencies run 
afoul the Constitution or pointed to evidence of previous determinations that WCJ staff 

was deliberately indifferent to inmates’ medical needs or constitutional rights with 
respect to health screenings, segregation, or the provision of health care in prison.  In 
fact, the Eighth Circuit determined that there is no underlying constitutional violation to 
support a deliberate indifference claim.  Peterson, 

.  In addition, the record 
evidence does not show that the Jail’s nurses systemically failed to review prior medical 

history during initial screenings, that the hours of the Jail’s contracted qualified mental 
health professional negatively affected the provision of mental health care such that it 
violated the Constitution, or that WCJ officers systemically failed to chart Plaintiffs 
refusals to take medication.  Further, Plaintiff argues that there is a widespread pattern at 
WCJ of failing to consider an inmate’s mental health when disciplining or placing them 

in segregation.  However, Plaintiff has not demonstrated a systemic pattern of doing so or 
that any such failure violated the Constitution.                          
For the reasons stated above, the Court concludes that Plaintiff has not carried his 
burden on summary judgment to show a continuing, widespread, and persistent pattern of 
unconstitutional conduct.  The Court finds that there is no genuine issue of fact that 

would support an unofficial custom claim to support Monell liability.     
     3.   Failure to Train                                           
Finally, Plaintiff argues for Monell liability under a failure to train theory.  
Inadequate training “may serve as the basis for § 1983 liability only where the failure to 
train amounts to deliberate indifference to the rights of persons with whom the police 
come into contact.”  City of Canton, 

.  Thus, failure to train or supervise 
can be established through a showing that:  (1) the municipality’s training was 

inadequate; (2) the municipality was deliberately indifferent to the rights of others in 
adopting the training practices; and (3) an alleged deficiency in the training actually 
caused the plaintiff’s injury.  Pitts v. Ramsey County, Civ. No. 17-4261, 

, at *10 (D. Minn. May 25, 2018).  “Policymakers’ continued adherence to 
an approach that they know or should know has failed to prevent tortious conduct by 

employees may establish” deliberate indifference necessary to trigger municipal liability.  
Connick v. Thompson, 

 (2011) (internal quotations and citation omitted).  
But “[w]ithout notice that a course of training is deficient in a particular respect, 
decisionmakers can hardly be said to have deliberately chosen a training program that 
will cause violations of constitutional rights.”  

                     

Here, Plaintiff points to evidence that he claims demonstrates inadequate training 
with respect to mentally ill inmates, that the County was deliberately indifferent in 
adopting its inadequate training policies, and that the deficiencies in training harmed 
Plaintiff.  Specifically, Plaintiff points to evidence that he claims shows that the jail staff 
and medical unit were not adequately trained on mental illness, that officers were not 

trained on how to provide access to mental health care, and that better training would 
have helped staff recognize his need for higher levels of medication and general 
psychiatric care.                                                         
Despite Plaintiff’s citation to evidence that he claims demonstrates improper 
training, Plaintiff has not connected the asserted training deficiencies with an underlying 
constitutional violation.  Without that, there can be no Monell claim.  And even if training 

was inadequate, Plaintiff has not demonstrated that Washington County had notice that 
its procedures were inadequate and likely to lead to a constitutional violation.   
Plaintiff’s remaining arguments in support of its failure to train theory (that more 
mental health training would have changed the officers’ use of chemical spray or 
segregation) are speculative.  There is no showing that the use of chemical spray or 

segregation on a mentally ill inmate, without more, violates a clearly established right.  
Therefore, Washington County could not be on notice that it was unconstitutional to train 
its officers in the use of those methods.  See Szabla v. City of Brooklyn Park, 

 (8th Cir. 2007) (en banc) (“[A] municipal policymaker cannot exhibit fault 
rising to the level of deliberate indifference to a constitutional right when that right has 

not yet been clearly established.”).                                      
For the reasons stated above, the Court grants Defendants’ motion for summary 
judgment on Plaintiff’s failure to train claim under Monell.  Therefore, Defendants are 
entitled to summary judgment on Plaintiff’s Monell claim.                 
C.   State-Law Claims                                                

Plaintiff asserts state-law claims for assault, battery, unauthorized use of force, 
negligence, and intentional infliction of emotional distress claims.  (Am. Compl., 
Counts 10-15.)  These claims involve the actions of remaining Defendants Heinen, 
Olson, Klinkner, Warneke, Cahill, Frantsi, Glassmaker, Dyck, Scheele, De La Rosa, 
Leibel, Kaphing, and Washington County.9  Defendants submit that official and vicarious 
official immunity bar state-law tort claims against these Defendants.  In the alternative, 
Defendants argue that even if the state-law tort claims are not barred by official 

immunity, they fail as a matter of law.                                   
Official immunity shields public officials from state-law claims when their duties 
require the exercise of discretion, so long as the official has not committed a willful or 
malicious wrong.  Pletan v. Gaines, 

 (Minn. 1992).  In the context of 
official immunity, “[m]alice ‘means . . . the intentional doing of a wrongful act without 

legal justification or excuse, or, otherwise stated, the willful violation of a known right.’”  
Rico v. State, 

 (Minn. 1991 (quoting Carnes v. St. Paul Union 
Stockyards Co., 

 (Minn. 1925)); see also Brown v. County of Golden 
Valley, 

 (8th Cir. 2009).                             
“Official immunity is intended ‘to protect public officials from the fear of personal 

liability that might deter independent action.’”  Dokman v. Cnty. of Hennepin, 

 (Minn. Ct. App. 2001) (quoting Janklow v. Minn. Bd. of Exam’rs for 
Nursing Home Adm’rs, 

 (Minn. 1996)).  “Whether official 
immunity applies requires the court to focus on the nature of the particular act in 
question.”  Johnson v. Morris, 

 (Minn. 1990).  While discretionary 


9    Plaintiff asserts claims for assault, battery, and “unauthorized use of force” against 
“all defendants.”  However, upon review, Kaphing, Leibel, Heinen, and Warneke were 
not involved in the use of force incidents.  Therefore, Counts 10-12 are properly 
dismissed as asserted against these defendants.                           
duties are immunized from personal liability, ministerial duties are not.  Rico, 

.  Ministerial duties are “absolute, certain[,] and imperative, involving 
merely execution of a specific duty arising from fixed and designated facts.”  

 (quoting 

Cook v. Trovatten, 

 (1937)).  Discretionary conduct requires 
individual professional judgment that “reflects the professional goal and factors of a 
situation.”  Vasallo ex rel. Brown v. Majeski, 

 (Minn. 2014).  
Whether an officials’ duty is discretionary or ministerial is a question of law.  Kelly v. 
City of Minneapolis, 

, 664 n.5 (Minn. 1999).                

There is an exception to official immunity—it does not protect an official who 
commits a willful or malicious wrong.  Rico, 

.  “In the official 
immunity context, willful and malicious are synonymous.”  

.  A public official 
can defeat a claim of malice by showing one of three things:  (1) that the conduct was 
objectively legally reasonable; (2) that the conduct was performed in good faith; or 

(3) that the right allegedly violated was not clearly established.  Mitchell v. Dakota Cnty. 
Soc. Servs., 

 (8th Cir. 2020).                           
     1.   Non-Medical Prison Officials                               
Plaintiff asserts state-law claims against Heinen, Warneke, Cahill, Frantsi, 
Glassmaker, Dyck, Scheele, De La Rosa, and Olson.  The Court considers whether these 

officers are entitled to official immunity.                               
With respect to Heinen, the Court has already concluded that his creation and 
implementation of the Care Plans was discretionary.  Again, Heinen developed the Care 
Plans, addressed Plaintiff’s privileges, instituted restrictions (including segregation), and 
sought civil commitment based on Plaintiff’s behavior and security concerns.  These 
decisions were all discretionary in nature.  In addition, the Eighth Circuit dismissed the 
deliberate indifference claim against Heinen and, as discussed above, the restrictions 

placed on Plaintiff via Heinen’s Care Plans did not violate a clearly established right.  By 
extension, the Court also concludes that there is no support in the record to find that 
Heinen’s conduct was willful or malicious.  And for the same reasons, the Court finds 
that Warneke’s actions, in participating in weekly meetings to discuss Plaintiff and in 
reviewing use of force reports, are also discretionary.  Thus, the Court finds that Heinen 

and Warneke are entitled to official immunity.                            
Plaintiff’s claims against Cahill, Frantsi, Glassmaker, Dyck, Scheele, and De La 
Rosa relate to their involvement in the uses of force on February 19, February 23, 
February 25, March 24, and May 1.  Their decisions regarding the use of force and 
security measures were discretionary.  See, e.g., Wealot v. Brooks, 

 

(8th Cir. 2017); Davis v. White, 

 (8th Cir. 2015); Kelly, 

; Teasley v. Forler, 

 (E.D. Mo. 2008).  In addition, the 
Eighth Circuit determined that officers’ conduct in the uses of force on February 19, 
February 23, February 25, March 24, and May 1 was objectively reasonable or did not 
violate a clearly established right.  Therefore, no reasonable juror could find that the 

officers’ conduct was willful or malicious.  See Hayek v. City of St. Paul, 

 (8th Cir. 2007).                                                     
Therefore, the Court concludes that Defendants Cahill, Frantsi, Glassmaker, Dyck, 
Scheele and De La Rosa are entitled to official immunity for the uses of force (and 
related failure to intervene claims) that occurred on February 19, February 23, 
February 25, March 24, and May 1.10                                       
The one use of force incident that remains in this action is the May 19 incident 

involving Olson.  Defendants argue that even though there is a fact issue as to Olson’s 
use of force during that incident, he is entitled to official immunity for the related state-
law claims because his use of the chemical spray was discretionary and neither willful 
nor malicious.  The Court agrees that the use of the spray was discretionary but finds that 
a fact issue remains as to whether his actions were malicious or willful.  Therefore, the 

Court finds that Olson is not entitled to official immunity on this claim. 
     2.   WCJ Medical Staff                                          
The question of official immunity for medical decisions, like those made by 
Kaphing and Leibel, is more complicated under Minnesota law, which carves out certain 
decisions made by medical professionals from the official immunity doctrine.  See 

Terwilliger v. Hennepin County, 

 (Minn. 1997) (“Nothing in our 
case law dictates that official immunity protects county doctors from every form of 
medical malpractice liability.”).  In Terwilliger, the Minnesota Supreme Court considered 
whether medical personnel at a county mental health facility, including a psychiatrist, 
were entitled to official immunity for their alleged negligence in treating a patient who 



10   Olson is also entitled to official immunity to the extent that he was involved in 
these incidents.                                                          
later committed suicide.  

.  The court ruled that the employees’ treatment 
decisions did not constitute the type of discretion protected by immunity.  

.   
In the case before us, the challenged conduct of the Mental Health Center’s 
employees does not implicate the concerns of official immunity. . . . But 
decisions of this kind—no matter how difficult and no matter how much 
professional judgment is required—do not involve the discretion protected 
by official immunity; they only implement Hennepin County’s established 
public policy of providing treatment for its mentally ill citizens.  And 
unlike the policeman’s split-second decision whether to engage in a high-
speed chase, [the psychiatrist] and the other professionals involved based 
their decisions not only on what they observed of [the patient] but also on 
the patient’s medical history and on consultations with [him].       

  (citations omitted).  The court emphasized that the county’s mental health employees 
made decisions based on the same considerations and subject to the same risks as private 
practitioners who are subject to malpractice liability and concluded that extending 
immunity would erect a shield against malpractice that is unavailable to private 
practitioners.  

  Thus, the court made clear that the exercise of medical discretion is not 
the kind of discretion official immunity is meant to protect.  See also Stodgell v. City of 
Warroad, Civ. No. 03-258, 

, at *6 (Minn. Ct. App. Sept. 16, 2003) 
(“That the ambulance attendants exercised discretion, however, is not in dispute.  Rather, 
the critical distinction here is that the ambulance attendants were exercising their medical 
discretion, which is not subject to official immunity despite their municipal 
employment.”).                                                            
Defendants cite to Bailey v. City of St. Paul, 

 (Minn. Ct. 
App. 2004) to support the application of official immunity.  In Bailey, the court applied 
official immunity to a government-employed ambulance crew.  However, in doing so, the 
court specifically distinguished the facts of its case from those of Terwilliger, explaining 
that the acts of the ambulance crew were more analogous to the acts of a police officer 
making split-second decisions on whether to engage in a high-speed chase than to the 

doctors and staff “who were able to take the time to gather the patient’s medical 
information and reflect on appropriate treatment based on analysis of that information.”  
Bailey, 

.  Here, Kaphing and Leibel arranged for medical and mental 
health care for Plaintiff and referred him to a separate qualified mental health 
professional (whom Plaintiff has not sued).  The Court finds that Kaphing’s and Leibel’s 

decisions regarding Plaintiff’s care, while technically discretionary, are more akin to the 
doctors in Terwilliger because they had time to gather Plaintiff’s medical information and 
reflect on appropriate treatment.  They were exercising their professional judgment and 
medical discretion.  Therefore, the Court concludes that their conduct is not subject to 
official immunity.                                                        

Defendants argue, in the alternative, that the state-law negligence claim asserted 
against Kaphing and Leibel fails as a matter of law.  A plaintiff asserting a claim for 
medical negligence must prove the following elements:  “(1) the applicable standard of 
care; (2) the defendant’s departure from that standard of care; and (3) that the departure 
from the standard of care directly caused the patient’s injury.”  Erickson v. Pope County, 

Civ. No. 19-3061, 

, at *44 (quoting Smits v. Park Nicollet Health 
Servs., 

, 678 (Minn. Ct. App. 2021)); see also McRae v. Group Health 
Plan, 

 (Minn. 2008) (setting forth elements of medical negligence).   
Plaintiff has submitted evidence that Kaphing and Leibel were aware of, or should 
have been aware of, Plaintiff’s mental illness and that he sustained injuries as a result of 
the lack of treatment of that illness.  Not only did Plaintiff’s correctional records contain 

evidence of his history of mental illness, but WCJ staff recorded several symptomatic 
presentations of manic behavior.  Plaintiff submitted expert testimony detailing the risks 
to Plaintiff’s health attendant to his serious mental illness and his decompensation while 
at WCJ.  (Doc. No. 190-4.)  Defendant argues that Plaintiff has failed to meet his burden 
to establish that Kaphing’s and Leibel’s actions caused his injuries, as opposed to other 

causes such as his pre-existing issues and the treatment decisions of others.  The Court 
acknowledges that a jury may well find that Plaintiff has not established causation.  But 
based on the record before it, the Court finds that there are genuine issues of material fact 
as to whether these Defendants departed from the standard of care and whether any such 
departure caused Plaintiff’s injury.  Therefore, the Court denies summary judgment as to 

the negligence claim against Kaphing and Leibel.11                        
     3.   Washington County                                          
Official immunity also protects government entities from vicarious liability for 
actions that are entitled to immunity.  See, e.g., Hayek, 

.  Here, 
Washington County is entitled to vicarious official immunity as to the state-law claims on 


11   To the extent that Count 15, which is named “Intentional Infliction of Emotional 
Distress” but appears to state a claim for “Negligent Infliction of Emotional Distress” is 
coextensive with the negligence claim against Kaphing and Leibel, it also survives 
summary judgment.                                                         
which the officials are entitled to official immunity.  Therefore, Washington County is 
entitled to summary judgment on Plaintiff’s state-law claims against:  (1) Heinen and 
Warneke; and (2) Cahill, Frantsi, Glassmaker, Dyck, Scheele, De La Rosa and Olson 

insofar as they relate to the incidents on February 19, February 23, February 25, 
March 24, and May 1.  However, because the Court has declined to apply official 
immunity to Olson for his actions on May 19, 2018 and to Kaphing and Leibel for their 
provision of medical care to Plaintiff as implicated in Counts 13 and 15, the Court denies 
Washington County summary judgment on those claims.                       

                     CONCLUSION                                      
The Court underscores that while Defendants are entitled to summary judgment on 
many of the claims discussed above, this case highlights serious issues that arise in the 
prison setting when housing mentally ill inmates.  While many of Plaintiff’s claims are 
legally untenable, particularly after the Eighth Circuit’s decision and guidance, that does 

not mean WCJ’s procedures for engaging with mentally ill inmates cannot or should not 
be reevaluated and improved.  Considering this, and the fact that this case now involves a 
single incident on May 19 and a limited set of state-court claims related to the provision 
of mental health care in WCJ, neither of which are guaranteed (or even likely) to be 
victorious at trial, the Court feels that it is in the best interest of all parties to attempt to 

resolve this matter and work to make improvements where practical.        

Based on the files, record, and proceedings herein, and for the reasons stated 
above, IT IS HEREBY ORDERED that:                                         
1.   Defendants’ Motion to Dismiss and for Summary Judgment (Doc.    
No. [158]) is GRANTED IN PART as follows:                                 
     a.   Defendants are entitled to summary judgment on Plaintiff’s 

conditions-of-confinement claim and Count 1 is DISMISSED WITH        
PREJUDICE;                                                           
     b.   Defendants are entitled to summary judgment on Plaintiff’s Monell 
claim and Count 4 is DISMISSED WITH PREJUDICE;                       
     c.   Defendants are entitled to official immunity on Plaintiff’s state-law 

claims as they are asserted against Defendants Heinen, Warneke, Cahill, Frantsi, 
Glassmaker, Dyck, Scheele and De La Rosa and Counts 10-15 are DISMISSED 
WITH PREJUDICE insofar as they are asserted against them;            
     d.   All state-law claims asserted against Olson, except as they might 
relate to the May 19, 2018 incident, are DISMISSED WITH PREJUDICE;   

     e.   Counts 10-12 are DISMISSED WITH PREJUDICE as they are      
asserted against Kaphing, Leibel, and Warneke;                       
     f.   Washington County is entitled to summary judgment on Plaintiff’s 
state-law claims against:  (1) Heinen and Warneke; and (2) Cahill, Frantsi, 
Glassmaker, Dyck, Scheele, De La Rosa and Olson insofar as they relate to the 

incidents on February 19, February 23, February 25, March 24, and May 1. 
2.   Defendants’ Motion to Dismiss and for Summary Judgment (Doc.    
No. [158]) is DENIED IN PART as follows:                                  
     a.   Plaintiff’s state-law claims for negligence (Count 13) and negligent 
infliction of emotional distress (Count 15) as they are asserted against Kaphing 
and Leibel remain for trial.                                         

     b.   Plaintiff’s state-law claims related to Olson’s actions during the 
May 19, 2018 incident remain for trial.                              
     c.   Washington County is not entitled to summary judgment on the 
surviving claims against Olson for his actions on May 19, 2018, or claims against 
Kaphing and Leibel related to their provision of medical care to Plaintiff. 


Dated:  October 29, 2024      s/Donovan W. Frank                          
                         DONOVAN W. FRANK                            
                         United States District Judge                

            UNITED STATES DISTRICT COURT                             
                DISTRICT OF MINNESOTA                                


Brandon Robert Peterson,                 Civil No. 18-2640 (DWF/ECW)      

          Plaintiff,                                                 

v.                                                                        

Commander Roger Heinen, in his                    MEMORANDUM              
individual capacity; Sergeant Brandon        OPINION AND ORDER            
Olson, in his individual capacity; Sergeant                               
Nicholas Klinkner, in his individual                                      
capacity; Sergeant Troy Jorgenson, in his                                 
individual capacity; Washington County,                                   
MN; Sheriff Dan Starry; John Warneke,                                     
Assistant Jail Administrator in his                                       
individual capacity; Officer KCee Cahill,                                 
in his individual capacity; Sergeant Frank                                
Capra, in his individual capacity; Officer                                
Dan Rein, in his individual capacity;                                     
Sergeant David Frantsi, in his individual                                 
capacity; Officer Jennifer Glassmaker, in                                 
her individual capacity; Corporal Rebecca                                 
Dyck, in her individual capacity; Nurse                                   
Melinda Leibel, “Mindy” in her individual                                 
capacity; Officer Chad Gaikowski, in his                                  
individual capacity; Officer John Roberto,                                
in his individual capacity; Officer Vincent                               
Scheele, in his individual capacity; Officer                              
Garrett Kleinendorst, in his individual                                   
capacity; Officer De La Rosa, in his                                      
individual capacity; Stephanie Kaphing, in                                
her individual capacity; John Does 1-10, in                               
their individual capacities,                                              

          Defendants.                                                
                    INTRODUCTION                                     
This matter is before the Court on Defendants’ Motion for Summary Judgment 
after remand by the Eighth Circuit Court of Appeals.  (Doc. No. 158.)  For the reasons set 

forth below, the Court grants in part and denies in part the motion.      
                     BACKGROUND                                      
The facts of this case have been set forth in prior orders by the Court and the 
Eighth Circuit Court of Appeals.  (Doc. Nos. 220, 239, 244.)  In short, Plaintiff Brandon 
Robert Peterson (“Plaintiff” or “Peterson”) suffers from bipolar disorder and was 

incarcerated at the Washington County Jail (the “Jail” or “WCJ”) from February 4, 2018 
to May 24, 2018.  Based on the conditions and events during his incarceration, Plaintiff 
brought various constitutional and state-law claims.                      
Relevant to the present motion, in an order dated February 18, 2022 (the 
“February 2022 Order”), the Court denied qualified immunity for the alleged use of 

excessive force and failure to intervene as to Sergeants Nicholas Klickner, Brandon 
Olson, and David Frantsi, as well as Officers Anthony De La Rosa, Rebecca Dyck, KCee 
Cahill, Jennifer Glassmaker, and Vincent Scheele.  These claims related to incidents that 
occurred at WCJ in 2018 on February 19, February 23, February 25, March 24, May 1, 
and May 19.  The facts of each incident are set out in the February 2022 Order and the 

Eighth Circuit Opinion at Peterson v. Heinen, 

 (8th Cir. 2023).  In the 
February 2022 Order, the Court also denied qualified immunity to Commander Roger 
Heinen, and Nurses Stephanie Kaphing and Melinda Leibel on Plaintiff’s claim that they 
acted with deliberate indifference to medical needs and denied qualified immunity to 
defendants on Plaintiff’s conditions-of-confinement claim.  The Court deferred ruling on 
state-law and Monell claims.                                              
On appeal, the Eighth Circuit Court of Appeals reversed portions of the 

February 22 Order and remanded the case for further consideration.  Relevant to the 
present motion, the Eighth Circuit reversed the denial of summary judgment as to all of 
the incidents of alleged excessive force except for the incident that occurred on May 19 
and as to Plaintiff’s failure to intervene and deliberate indifference claims.1  Based on the 
Eighth Circuit’s ruling, Plaintiff’s claim of excessive force asserted against Olson for his 

actions during the May 19 incident remains for trial.2  In addition, and relevant to the 
pending motions, the Eighth Circuit vacated the Court’s denial of summary judgment on 
Plaintiff’s conditions-of-confinement, state-law, and Monell claims, all of which are now 
before the Court on Defendants’ motion for summary judgment.3             



1    The Eighth Circuit also reversed the Court’s denial of summary judgment and 
dismissed Sergeants Troy Jorgenson and Frank Capra and Officer Chad Gaikowski from 
this action.                                                              
2    Plaintiff alleges that on May 19, Olson used excessive force when he deployed 
chemical spray.  The record shows that before Olson used the spray, Olson had demanded 
Plaintiff’s belongings because Plaintiff had been disruptive for hours.  Olson claims that 
Plaintiff refused to comply, justifying his use of the chemical spray.  Plaintiff’s 
compliance, or lack thereof, creates a genuine issue of material fact.  See Peterson, 

.                                                               
3    The Eighth Circuit did not disturb the Court’s dismissals of Counts 5-8 or the 
dismissals of claims against Defendants Dan Rein, Garrett Kleinendorst, John Roberto, 
and Dan Starry.                                                           
While the Court has already laid out the relevant facts in the February 2022 Order, 
the Court restates some relevant facts here:                              
Plaintiff had been incarcerated at the Jail previously and Plaintiff asserts 
that Jail staff had provided Plaintiff with medication, including    
antipsychotics, mood stabilizers and anxiety medication.  Plaintiff has 
pointed to evidence that some Defendants remembered Plaintiff.  Further, 
Plaintiff had been civilly committed before his incarceration.       

On February 4, 2018, Plaintiff arrived at the Jail.  [Officer Dyck] recalled 
that Plaintiff was stumbling, not able to stand on his own, and appeared to 
be on some kind of illicit drug.  In addition, Plaintiff was placed in a cell 
without receiving a mental health screening.                         

On February 7, 2018, [Kaphing] performed an “Intake” evaluation.     
Kaphing confirmed Plaintiff’s self-reported mental health diagnoses and 
prior suicide attempts.  Plaintiff denied taking medications, but reported a 
history of depression, anxiety, bipolar disorder, and “[Redacted]” which 
Kaphing interpreted as “[Redacted].”  Kaphing noted that Peterson    
admitted to recently using “dope.”  Kaphing did not review Plaintiff’s 
medical records or refer Plaintiff to a Qualified Mental Health Provider 
(“QMHP”), and instead documented that Plaintiff was “aware of how to 
contact medical.”                                                    

On February 12, 2018, Plaintiff was reprimanded by a corrections officer 
and Plaintiff grew agitated, yelled, and exposed his genitalia.  Plaintiff was 
placed in a segregation unit.                                        

On February 14, 2018, Plaintiff fractured his hand by slamming it into the 
walls and door of his cell, and he injured his face while jumping from the 
top of his cell sink. That day, Jail nursing supervisor [Leibel], who had 
conducted a mental health assessment earlier that day, prescribed 100mg of 
Hydroxyzine, an anti-anxiety medication.  The next day, Plaintiff was 
prescribed sertraline, a drug commonly used to treat depressive disorders. 
On February 16, 2018, Plaintiff requested and was prescribed . . . an 
antipsychotic.  Then on February 19, 2018, Plaintiff was placed on high 
observation or special close watch based on behavior, including homicidal 
statements, belligerent self-harm, and weapon procurement.           

On February 20, 2018, [Heinen] contacted a Washington County Attorney 
to determine whether civil commitment proceedings had been initiated for 
Peterson.  In that same email chain, Leibel indicated that the medical unit at 
the Jail has “done all we can do to help him” and that [h]e won’t take the 
meds he needs.”  [Heinen] and Leibel did not move Plaintiff to a higher 
level of care at this time.                                          

On February 22, 2018, [Dresel], an Advanced Practice Registered Nurse 
and the Jail’s only QMHP, conducted a psychiatric diagnostic evaluation on 
Plaintiff.   [Dresel] recorded Plaintiff’s mental health status and history of 
mental illness, prescribed medications, including antipsychotics, and 
scheduled a follow-up.  Dresel prescribed trazadone, and either [Redacted] 
or an increased dosage of [Redacted].                                

On March 2, 2018, the County Attorney charged Peterson with criminal 
damage to property related to acts of destruction at the Jail on or about 
February 19-22, 2018 and contempt of court.  That same day, Plaintiff was 
convicted of contempt of court and sentenced to 90 days in Jail.     

On March 7, 2018, Plaintiff appeared in court on the property-damage 
charge, during which the Court ordered a Rule 20 psychological evaluation.  
On March 29, Dresel and Dr. Jensen discontinued Plaintiff’s medications 
after Plaintiff reportedly snorted his pills.                        

. . .                                                                

A Court-appointed forensic psychologist, Dr. Jill Rogstad, conducted a 
court-ordered competency evaluation.  In a report dated April 11, 2018, Dr. 
Rogstad reported a diagnosis of “Unspecified Bipolar Disorder” and   
recommended civil commitment for mental illness and chemical         
dependence.                                                          

On April 26, 2018, Plaintiff was transported to Regions Hospital for a 
“crisis evaluation.”  Leibel testified that Plaintiff was sent to the hospital to 
“see if they could do anything else that we had not done yet, and also to 
give staff a break.”  Leibel also testified that [Heinen] made the decision to 
send Plaintiff to Regions.  At Regions, Plaintiff was diagnosed with 
antisocial personality disorder, manic behavior, and a fracture in his left 
hand.  In addition, substance abuse disorders were noted.  . . .     

In addition, Plaintiff refused [Redacted] an antipsychotic medication.  The 
Hospital Records also contain information provided by Jail staff, including 
Leibel.  Leibel told hospital staff that Plaintiff did not always take his 
medication and because Plaintiff once snorted his medication, he was no 
longer receiving it in Jail.  In addition, it was noted that medical staff at the 
Jail were not in favor of sending Plaintiff to the hospital and dismissed 
Plaintiff as manipulative.  Upon discharge from Regions Hospital, Plaintiff 
was prescribed [Redacted] and [Redacted].  Plaintiff returned to Jail and to 
segregation.                                                         

On May 8, 2018, Washington County petitioned for Plaintiff to be civilly 
committed due to mental illness.  The court determined that Peterson was 
incompetent and suspended all ongoing criminal proceedings until Peterson 
completed civil commitment.                                          

On May 24, Plaintiff was transferred to Anoka Metro Regional Treatment 
Center (“AMRTC”) and committed due to mental illness by court order. 
The treating physician at AMRTC, Dr. Matthew Kruse, noted that Plaintiff 
had an extensive history of hospitalization for mental health and a criminal 
history, and that while Plaintiff was in jail, he was “disinhibited and 
aggressive,” non-adherent with medication, engaged in self-harm, and 
expressed delusional beliefs.  Dr. Kruse diagnosed Plaintiff with Bipolar I 
Disorder with manic features and noted that he was unable to perform a 
comprehensive evaluation upon admission because of Plaintiff’s “severely 
decompensated mental condition.”  While at AMRTC, Plaintiff was      
prescribed additional medications, and at the time of discharge was on two 
anti-psychotics.  Plaintiff remained at AMRTC until August 16, 2018, 
when he was transferred to a Competency Restoration Program at the   
Minnesota Security Hospital.  Plaintiff was treated at St. Peter Regional 
Treatment Center until January 23, 2019.                             

(Doc. No. 220 at 3-8 (citations and footnotes omitted and with redactions).) 

                      DISCUSSION                                     
Summary judgment is proper if there are no disputed issues of material fact and 
the moving party is entitled to judgment as a matter of law.  Fed. R. Civ. P. 56(a).  The 
Court must view the evidence and the inferences that may be reasonably drawn from the 
evidence in the light most favorable to the nonmoving party.  Enter. Bank v. Magna Bank 
of Mo., 

 (8th Cir. 1996).  However, as the Supreme Court has stated, 
“[s]ummary judgment procedure is properly regarded not as a disfavored procedural 
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 
‘to secure the just, speedy and inexpensive determination of every action.’”  Celotex 
Corp. v. Catrett, 

 (1986) (quoting Fed. R. Civ. P. 1).   
The moving party bears the burden of showing that there is no genuine issue of 

material fact and that it is entitled to judgment as a matter of law.  Enter. Bank, 

.  The nonmoving party must demonstrate the existence of specific facts in the 
record that create a genuine issue for trial.  Krenik v. County of Le Sueur, 

 (8th Cir. 1995).  A party opposing a properly supported motion for summary 
judgment “may not rest upon mere allegations or denials of his pleading, but must set 

forth specific facts showing that there is a genuine issue for trial.”  Anderson v. Liberty 
Lobby, Inc., 

 (1986).                                    
A.   Conditions of Confinement—Count 1                               
Plaintiff alleges that the conditions of his confinement at WCJ, when considered in 
toto, deprived him of clearly established constitutional rights.  This claim is asserted 

against Heinen, Warneke, Olson, Klinkner, Cahill, Frantsi, Glassmaker, and Dyck.4   
Plaintiff was placed in segregation for nearly 100 days, and while in segregation, 
he was confined to his cell for 23 hours a day, 7 days a week.  In addition, Plaintiff 
asserts that while he was under “Care Plans,” he was subjected to additional limitations, 
including the deprivation of ordinary privileges (out-of-cell time, toilet paper, certain 

articles of clothing, books, the ability to file grievances, pencils, phone calls, showers, 

4    Count 1 was dismissed as asserted against Scheele and De La Rosa.  (Doc. 
No. 258 at 1.a.)                                                          
access to the canteen, and social visits), and that on several occasions, Plaintiff’s out-of-
cell time was revoked and Plaintiff could not exercise, shower or socialize.  In addition, 
Plaintiff points to evidence that, on several occasions, he was placed in an intake (or 

transport) cell that did not have a toilet, bed, or sink, that he was not always 
decontaminated after the use of chemical spray, and that, on occasion, he was denied 
medication and phone calls.  Plaintiff further asserts that Defendants knew of his mental 
illness.                                                                  
Defendants point to record evidence that before Plaintiff was incarcerated in 2018, 

he had been civilly committed several times and that he had received varied diagnoses.  
In addition, on February 12, 2018, Plaintiff was placed in disciplinary segregation 
because of significant behavior issues, and he remained in segregation for most of his 
2018 incarceration until he was transferred to civil commitment on May 24, 2018.  
WCJ’s contact physician prescribed Plaintiff an antipsychotic medication on February 16, 

2018.  As detailed in the Court’s February 2022 Order, Plaintiff engaged in repeated acts 
of destructive and disruptive behavior.  For example, Plaintiff made homicidal 
statements, engaged in self-harm, and attempted to procure items that could be used as 
weapons.  In addition, Plaintiff repeatedly snorted or misused medication, covered his 
cell camera with toilet paper, damaged his sprinkler head, flooded his cell, resisted, 

threatened, cursed and spit at officers, removed a metal bar from a floor grate and a brick 
from his cell, refused to turn over objects when requested, attempted to rip his mattress, 
returned his dinner bag to staff full of his own feces, and generally displayed disruptive 
behavior.  Defendants maintain that Plaintiff’s behavior was the reason restrictions were 
placed on Plaintiff during his stay, and in particular, to protect Plaintiff, other inmates, 
and the correctional officers.                                            
Defendants maintain that qualified immunity bars Plaintiff’s conditions-

of-confinement claim.  The doctrine of qualified immunity protects state actors from civil 
liability when their “conduct does not violate clearly established statutory or 
constitutional rights of which a reasonable person would have known.”  Harlow v. 
Fitzgerald, 

 (1982).  The defense provides “ample room for mistaken 
judgments” as it protects “all but the plainly incompetent or those who knowingly violate 

the law.”  Malley v. Briggs, 

 (1986).  To overcome the defense of 
qualified immunity, a plaintiff must show that:  “(1) the facts, viewed in the light most 
favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory 
right; and (2) the right was clearly established at the time of deprivation.”  Parrish v. 
Ball, 

 (8th Cir. 2010) (quoting Howard v. Kansas City Police Dep’t., 

 (8th Cir. 2009)).  In determining whether the constitutional right was 
clearly established at the time of the conduct, the Court must ask whether the contours of 
the applicable law were “‘sufficiently clear’ that every ‘reasonable official would [have 
understood] that what he is doing violates that right.’”  Ashcroft v. al-Kidd, 

, 
741 (2011) (alteration in original) (quoting Anderson v. Creighton, 

 

(1987)).  A plaintiff is not required to cite a case directly on point—it is enough if 
“controlling authority” or a “a robust ‘consensus of cases of persuasive authority’” puts 
the “constitutional question beyond debate.”  

 at 741-42 (quoting Wilson v. Layne, 

 (1999)).                                                
The Eighth Amendment prohibits “cruel and unusual punishments,” and requires 
prison officials to provide humane conditions of confinement.  U.S. Const. amend. VIII; 
Farmer v. Brennan, 

 (1994).  The conditions under which an inmate is 

confined are subject to scrutiny under the Eighth Amendment using the deliberate 
indifference standard.  

 (citing Helling v. McKinney, 

 (1993).)  
Prison officials must provide humane conditions of confinement and are required to 
“ensure that inmates receive adequate food, clothing, shelter, and medical care.”  Farmer, 

; see also Jackson v. Mike-Lopez, Civ. No. 17-4278, 

, 

at *2 (D. Minn. Dec. 20, 2018).  “The Constitution ‘does not mandate comfortable 
prisons . . . .’”  Farmer, 

 (quoting Rhodes v. Chapman, 

 
(1981)).                                                                  
“The deliberate indifference standard has two components:  an objective 
component and a subjective component.”  Thomas-El v. Francis, 

 

(8th Cir. 2024).  The objective component is satisfied by a showing a deprivation that 
results “in the denial of ‘the minimal civilized measure of life’s necessities.’”  

 
(quoting Farmer, 

).  The subjective component requires a showing that 
“the official knows of and disregards an excessive risk to inmate health and safety.”  

 
(quoting Farmer, 

).  “[D]eliberate indifference includes something more 

than negligence but less than actual intent to harm; it requires proof of a reckless 
disregard of the known risk.”  Reynolds v. Dormire, 

 (8th Cir. 2001) 
(alteration in original) (quoting Crow v. Montgomery, 

 (8th Cir. 2005)). 
“Whether a prison official had the requisite knowledge of a substantial risk is a question 
of fact subject to demonstration in the usual ways, including inference from 
circumstantial evidence.”  Farmer, 

.  In the context of a qualified 
immunity analysis, if the two prongs of the deliberate indifference standard are satisfied, 

the Court then considers whether the law clearly established the inmate’s right vis a vis 
the alleged deprivation.                                                  
The parties have submitted competing views of the case law on the question of 
whether the conditions at WCJ deprived Plaintiff of his Eighth Amendment rights.  From 
the relevant authority, the Court discerns the following parameters of the law.  “Some 

conditions of confinement may establish an Eighth Amendment violation ‘in 
combination’ when each would not do so alone, but only when they have a mutually 
enforcing effect that produces the deprivation of a single, identifiable human need such as 
food, warmth, or exercise . . . .”  Wilson v. Seiter, 

 (1991) (emphasis 
omitted) (using the example of a low cell temperature at night combined with a failure to 

provide blankets).  However, “[n]othing so amorphous as ‘overall conditions’ can rise to 
the level of cruel and unusual punishment when no specific deprivation of a single human 
need exists.”  

.                                                
In Rhodes v. Chapman, the Supreme Court required a serious deprivation of the 
minimal civilized measure of life’s necessities, not simply “restrictive and even harsh” 

conditions, to be unconstitutional.  

.  Such deprivations have included:  
deprivation of physical space via overcrowding combined with lack of out-of-cell time, 
Campbell v. Cauthron, 

 (8th Cir. 1980) (explaining that it is 
unconstitutional to confine pretrial detainees to small, overcrowded spaces—less than 18 
square feet per detainee—with no recreational activities for all but a few hours each 
week); deprivation of clothing, Maxwell v. Mason, 

 (8th Cir. 1981) 
(affirming district court’s findings that confining an inmate to solitary confinement in 

only undershorts and no bedding constituted cruel and unusual punishment); and 
deprivations of sanitary conditions, Whitnack v. Douglas County, 

 
(8th Cir. 1994) (recognizing that reasonably adequate sanitation and the ability to dispose 
of one’s waste are basic identifiable human needs, but finding that the record does not 
show that “deplorable” conditions rose to the level of a constitutional violation given the 

brevity of confinement).                                                  
Courts have also found that long-term confinement in administrative segregation, 
and in particular of those suffering mental illness, may constitute cruel and unusual 
punishment.  See, e.g., Williams v. Norris, 

 (8th Cir. 2008) (in due 
process analysis, finding nine years in administrative segregation “constitutes an atypical 

and significant hardship”); Madrid v. Gomez, 

 (N.D. Cal. 1995) 
(finding that extreme isolation and environmental deprivation over extended periods of 
time did not inflict cruel and unusual punishment on all inmates but did deprive mentally 
ill inmates “of a minimal civilized level of one of life’s necessities”); Ruiz v. Johnson, 

 (S.D. Tex. 1999) (finding that prolonged placement of mentally 

ill prisoners in administrative segregation caused cruel and unusual suffering), rev’d on 
other grounds, 

 (5th Cir. 2001); Palakovic v. Wetzel, 

 
(3d Cir. 2017) (finding that allegations that a mentally ill prisoner was placed in an 
extended stay in isolation states a plausible claim that plaintiff experienced inhumane 
conditions of confinement); Braggs v. Dunn, 

 (M.D. Ala. 
2017) (“The serious psychological harm stemming from segregation is even more 
devastating for those with mental illness.”).                             

On the other hand, Defendants cite to authority to support a finding that, on the 
facts of this case, they did not violate any clearly established right of Plaintiff’s via the 
conditions of his confinement.  In Crane v. Utah Department of Corrections, 

 (10th Cir. 2021), the Tenth Circuit reviewed a plaintiff’s conditions-of-confinement 
claim that involved 154 days of punitive isolation of a prisoner who suffered from a 

diagnosed mental illness (psychosis and major depressive disorder).  Id. at 1301.  The 
Tenth Circuit found that it is not clearly established that housing an inmate with a serious 
mental illness in solitary confinement constitutes cruel and unusual punishment.  Id. 
at 1306-07 (holding that the general use of punitive isolation to discipline prisoners who 
happen to be mentally ill does not violate clearly established law).      

The cases share a common theme.  They stand for the proposition that 
isolating mentally ill inmates in conditions that seriously and predictably 
exacerbate their mental illness is cruel and unusual when the official has 
subjective knowledge of both the mental illness and the impact of isolation.  
Although these trial court decisions may portend future legal developments, 
they do not constitute clearly established law capable of overcoming 
qualified immunity here.                                             
Id. at 1306 (emphasis added).  The Court further explained that the plaintiff did not point 
to on-point decisions from any circuit court or the Supreme Court that hold punitive 
isolation of mentally ill inmates violates the Eighth Amendment.5         

With respect to Plaintiff’s claim that he was deprived of other necessities, such as 
clothing, Defendants cite to Williams v. Delo, 

 (8th Cir. 1995).  In 
Williams v. Delo, after an inmate attacked his wife during a prison visit, he was held in a 
strip cell for four days without clothes and with the water to his cell shut off.  

 at 443-
44.  He had “a light, a toilet, and a sink, but the mattress had been removed.”  

.  

He was given three meals a day.  

.  The Eighth Circuit held that plaintiff failed 
to make a showing that he was denied “the minimal civilized measure of life’s 
necessities” and “that prison officials were deliberately indifferent.”  

; see also 
Stickley v. Byrd, 

 (8th Cir. 2013) (finding under Fourteenth 
Amendment analysis, limiting access to toilet paper does not violate a clearly established 

right where inmate exhausted his supply of toilet paper before receiving his weekly 
allotment, particularly where plaintiff could shower).                    

5    Defendants also cite to Eighth Circuit cases that involved periods of segregation 
for administrative or disciplinary reasons that did not violate the Constitution.  See 
Portley-El v. Brill, 

 (8th Cir. 2002) (finding in due process 
analysis, 30 days in punitive segregation is not an atypical or significant hardship); 
Rahman X v. Morgan, 

 (8th Cir. 2002) (holding that 26 months in 
segregation and the resulting deprivations are not “sufficiently serious” to establish an 
Eighth Amendment violation); Hemphill v. Delo, 

, 208 (8th Cir. 1997) 
(unpublished table decision) (finding in a due process analysis, 30 days of disciplinary 
segregation and 290 days of administrative segregation is not an “atypical and 
significant” hardship).                                                   
Defendants rely heavily on record evidence showing that Plaintiff was disruptive, 
threatening, and repeatedly damaged jail property.  There is no dispute that Plaintiff 
stuffed clothing in his toilet and that he covered the camera in his cell with toilet paper.  

The record also demonstrates that after receiving a bag-meal, Plaintiff did not return a 
spoon and claimed to have flushed it down the toilet, and that Plaintiff damaged his cell 
in other ways, such as by removing a brick and metal grate.  In addition, the record shows 
that Plaintiff often threatened, spit at, and resisted jail officers.  Defendants maintain that 
they took measures to address Plaintiff’s safety, as well as the safety of correctional 

officers and other inmates, and to address Plaintiff’s violation of jail rules.  For example, 
prison officials gave Plaintiff anti-suicide gowns that could not be easily torn and stuffed 
in his toilet.  In addition, Plaintiff was provided toilet paper on a limited basis so that he 
would not be able to use it to cover his camera.  And when Plaintiff became disruptive or 
if they were concerned about the possibility of self-harm (i.e., when he did not return 

utensils), prison officials would remove Plaintiff from his cell and place him temporarily 
in an intake cell.                                                        
Here, Plaintiff’s conditions-of-confinement claim centers on the prolonged period 
of segregation, lack of out-of-cell time, deprivation of clothing, and adequate hygiene, all 
while he was suffering from a serious mental illness.  The record however shows that 

Plaintiff was placed in segregation for legitimate penological reasons, namely for his 
safety, the safety of correctional officers, the safety of other inmates, and because 
Plaintiff repeatedly violated jail rules and engaged in unsafe and disruptive behavior.  
After careful review, and in keeping with the Eighth Circuit’s finding on appeal that 
Plaintiff’s behavior implicated legitimate prison concerns, the Court concludes that the 
imposition of segregation in and of itself (either administrative or disciplinary) for the 
length of time here did not violate Plaintiff’s Eighth Amendment rights considering the 

facts of Plaintiff’s behavior in custody.  The fact that Plaintiff suffers from a mental 
illness is certainly relevant and could alter that conclusion.  But the fact that Plaintiff 
suffers from a mental illness does not compel a finding of unconstitutional conditions.  
See, e.g., Loving v. Roy, Civ. No. 12-551, 

, at *7 (D. Minn. Sept. 3, 
2013), aff’d, 

 (8th Cir. 2014 ) (citing Haggins v. Minn. Comm’r of 

Corr., Civ. No. 10-1002, 

, at *1-9 (D. Minn. Feb. 14, 2012) (finding 
that even where the prisoner suffers from “paranoid schizophrenia and schizoaffective 
disorder,” 19 months of segregation did not support a finding of an atypical and 
significant hardship in violation of the due process clause), report and recommendation 
adopted, 

 (D. Minn. March 22, 2012)).  Moreover, while the record 

establishes that Plaintiff was deprived of certain items of clothing, blankets, medication, 
toilet paper, and other necessities, these items were restricted because of Plaintiff’s 
behavior and for legitimate prison concerns.                              
Having carefully considered the evidence in the record and in light of the Eighth 
Circuit’s remand, the Court finds that the record does not create a triable issue of fact as 

to whether Plaintiff suffered deprivations serious enough in the conditions of his 
confinement to support a constitutional claim.  And even if Plaintiff could establish an 
Eighth Amendment violation based on the placement of time in segregation or the 
deprivation of clothing or other necessities, any such right was not clearly established as 
the constitutional question was not “beyond debate.”6                     
Accordingly, Defendants are entitled to qualified immunity on Plaintiff’s 

conditions-of-confinement claim and their motion for summary judgment on this claim is 
granted.                                                                  
B.   Monell Claim—Count IV                                           
Plaintiff alleges a Monell claim against Washington County.  A “municipality 
cannot be held liable solely because it employs a tortfeasor—or, in other words, a 

municipality cannot be held liable under § 1983 on a respondeat superior theory.”  
Monell v. Dep’t of Soc. Servs. of N.Y., 

 (1978) (emphasis omitted).  A 
municipality may be held liable under § 1983 if it, “under color of any statute, ordinance, 
regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any 
citizen of the United States . . . to the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws.”  

; see Monell, 

-
91.  Municipal liability exists “only where the municipality itself causes the constitutional 
violation.”  City of Canton v. Harris, 

 (1989) (emphasis omitted).  


6    The Court is mindful that it must consider the claim against each individual 
defendant—namely the Defendants implicated by Plaintiffs’ conditions-of-confinement 
claim— Frantsi, Heinen, Warneke, Glassmaker, Cahill, Olson, Klinkner, and Dyck.  
Because these individuals were involved in the events considered above, the Court 
determines that none of these individuals’ actions alone rise to the level of an Eighth 
Amendment violation, and that in any event, their actions in imposing restrictions on 
Plaintiff to accomplish legitimate penological goals did not violate a clearly established 
right.                                                                    
“[L]iability for a constitutional violation attaches only if the violation resulted from an 
official municipal policy, an unofficial custom, or a deliberately indifferent failure to 
train or supervise an official or employee.”  Tirado v. City of Minneapolis, 

, 840 (D. Minn. 2021); see also Bolderson v. City of Wentzville, 

 (8th Cir. 2016).                                                      
To support a claim for municipal liability, a plaintiff must establish a predicate 
constitutional violation even if he has not shown that an official is personally liable.  See 
Whitney v. City of St. Louis, 

 (8th Cir. 2019) (holding that the 

complaint fails to allege any constitutional violation arising out of a municipal policy); 
Webb v. City of Maplewood, 

 (8th Cir. 2018) (acknowledging that a 
municipality may be held liable for its unconstitutional policy or custom even when no 
official has been found personally liable for conduct under that policy or custom).  In 
Ivey v. Audrain County, 

 (8th Cir. 2020), the Eighth Circuit explained 

that a finding that no constitutional violation occurred would also result in a finding that 
no Monell liability attaches, but where officers are found to be immune only because they 
did not violate clearly established rights, then Monell liability could attach.  And in 
Speer v. City of Wynne, 

 (8th Cir. 2002), the Eighth Circuit explained: 
We do not suggest that municipal liability may be sustained where there has 
been no violation of the plaintiff’s constitutional rights as a result of action 
by the municipality’s officials or employees.  After all, a municipality can 
act only through its officials and employees.  However, situations may arise 
where the combined actions of multiple officials or employees may give 
rise to a constitutional violation, supporting municipal liability, but where 
no one individual’s actions are sufficient to establish personal liability for 
the violation.                                                       

 (citation omitted).                                            
Plaintiff argues that the Eighth Circuit’s decision has not mooted Plaintiff’s 
municipality liability claims under the following theories:  (1) Pembaur liability based on 

decisions on the conditions of confinement and deliberate indifference to Plaintiff’s 
serious mental illness; (2) WCJ’s “unofficial municipal custom” of deficiencies in the 
custody and care of mentally ill inmates; and (3) failure to train officers relating to the 
custody and care of inmates.  The Court considers these theories below.   
     1.   Pembaur Liability                                          

Plaintiff argues that there are genuine issues of material fact as to whether, under 
Pembaur v. City of Cincinnati, 

 (1986), Washington County is liable for 
harming Plaintiff through its official policies that created unconstitutional conditions of 
confinement and deliberate indifference.  Pembaur recognizes that municipal liability 
based on an “official policy” “may be imposed for a single decision by municipal 

policymakers under appropriate circumstances.”  Pembaur, 

.  Indeed, an 
official policy can be “inferred from a single decision taken by the highest officials 
responsible for setting policy in that area of the government’s business.”  City of St. 
Louis v. Praprotnik, 

 (1988); see also Pembaur, 

.  An 
official policy is “a deliberate choice of a guiding principle or procedure made by the 

municipal official who has final authority regarding such matters,” Mettler v. Whitledge, 

, 1204 (8th Cir. 1999), and is “intended to, and do[es], establish fixed plans 
of action to be followed under similar circumstances consistently and over time,” 
Pembaur, 

.                                              
Under Pembaur, municipal liability only attaches to actual policymaking—which 
is “a deliberate choice to follow a course of action [] made from among various 
alternatives by the official or officials responsible for establishing final policy with 

respect to the subject matter in question.”  

.  Thus, even if Heinen is eventually 
found to be a “final policymaker” (and assuming he is for purposes of this motion)7, the 
Court must determine whether Heinen engaged in actual official policymaking, as 
opposed to discretionary conduct, when creating the Care Plans.           
Plaintiff argues that Heinen’s creation of the Care Plans constituted official 

municipal policy that created unconstitutional conditions.  The Court disagrees.  In 
creating Plaintiff’s Care Plans, Heinen addressed day-to-day operations at WCJ, and in 
particular evaluated how to address Plaintiff’s significant behavioral and jail safety 
issues.  Heinen also reached out to the county attorney to seek civil commitment for 
Plaintiff.  These decisions were discretionary in nature.  See, e.g., Bell v. Wolfish, 

 (1979) (“Prison administrators . . . should be accorded wide-ranging 
deference in the adoption and execution of policies and practices that in their judgment 
are needed to preserve internal order and discipline and to maintain institutional 
security.”); Brenner v. Asfeld, Civ. No. 18-2383, 

, at *11-12 (D. Minn. 
June 4, 2019) (finding that an officer who failed to identify an inmate as a suicide risk 

and implement suicide prevention procedures was protected by official immunity under 

7    Plaintiff correctly points out that the Court previously reserved for trial the 
question of whether Heinen is considered a “final policymaker” for the purposes of 
Monell liability.  (Doc. No. 220 at 29.)                                  
state law because the actions were discretionary); Olson v. Ramsey County, 

 (Minn. 1993) (finding that a child protection social worker’s creation of 
Case Plan is discretionary and protected by official immunity); Balducci v. Mo. Dep’t of 

Corr., Civ. No. 21-4022, 

, at *4 (W.D. Mo. Sept. 15, 2021) (finding 
that the creation of policies for prison security and inmate safety, including “corrective 
actions,” are discretionary).  Thus, the Court concludes that even if Heinen is an official 
policymaker, his actions in creating Care Plans do not, as a matter of law, constitute 
official policymaking.  See Bolderson, 

 (noting that the fact a policymaker 

has discretion in the exercise of functions does not, without more, give rise to municipal 
liability based on the exercise of that discretion).  Heinen’s decisions related to creation 
and implementation of the Care Plans created specifically for Plaintiff cannot be 
considered official municipal policy for purposes of Monell liability.8   
Plaintiff also argues that Washington County is liable for harming Plaintiff 

through systemic policy deficiencies in the custody and care of mentally ill inmates that 
amounted to deliberate indifference.  Whether a jail official acted with deliberate 
indifference requires a two-prong analysis.  First, objectively, Plaintiff must establish that 
he suffered from a serious medical need.  Saylor v. Nebraska, 

 (8th Cir. 
2016).  Second, subjectively, Plaintiff must show that the defendants “actually knew of 

but deliberately disregarded his serious medical need.”  

 (quoting Scott v. Benson, 742 

8    In addition, as discussed above, Plaintiff has not made a showing that there is a 
predicate constitutional violation based on the Care Plans.  For this additional reason, the 
Monell claim based on the implementation of the Care Plans fails as a matter of law. 
F.3d 335, 340 (8th Cir. 2014)).  This requires a showing of a something more than gross 
negligence, something “akin to criminal recklessness.”  

 (quoting Scott, 742 F.3d at 
340).                                                                     

The Court already determined that Plaintiff suffers from a serious medical need, a 
finding that the Eighth Circuit did not disturb on appeal.  Peterson, 

.  The 
Court therefore considers whether Plaintiff can demonstrate that any of the Defendants 
knew of and disregarded that need.  Plaintiff submits that genuine issues of material fact 
exist both as to actions taken by individuals at WCJ and whether systemic deficiencies 

constitute deliberate indifference.  Plaintiff argues that fact issues remain as to whether 
Heinen, Dresel, Kaphing, and Doctor Joel Jensen committed constitutional violations via 
deliberate indifference, and also as to whether Heinen, Dresel and Kaphing were final 
policymakers and created systemic unconstitutional deficiencies.          
In its February 2022 Order, the Court found that a reasonable factfinder could 

conclude that Heinen, Leibel, and Kaphing deliberately disregarded Plaintiff’s serious 
medical need and reserved for trial the question of whether Heinen, Dresel, Kaphing and 
Jensen are “final policymakers” for purposes of Monell liability.  (Doc. No. 220 at 29, 
45-46.)  The Eighth Circuit, however, held that Heinen, Leibel, and Kaphing were 
entitled to qualified immunity and stated “[a]ll told, neither Gordon nor Buckley nor 

McRaven shows that Commander Heinen’s, Nurse Leibel’s, or Nurse Kaphing’s 
particular conduct violates the Eighth Amendment.”  Peterson, 

.  Because 
there is no underlying constitutional violation to support the Monell claim as to the 
actions of named Defendants Heinen, Leibel, and Kaphing, their conduct, therefore, does 
not support a finding of deliberate indifference against Washington County.   
The Court next considers the conduct of Jensen and Dresel, neither of whom are 

named defendants in this lawsuit.  Jensen and Dresel were Plaintiff’s contracted medical 
providers.  Dresel conducted Plaintiff’s initial psychiatric diagnostic evaluation.  Plaintiff 
argues that she was deliberately indifferent because she only met with him once.  (Doc. 
No. 251 at 22.)  In addition, Plaintiff argues that Jensen and Dresel were deliberately 
indifferent when they discontinued his medication on March 29, 2018.  (Id.) 

Municipal liability for the actions of these individuals will attach if they are found 
to be decisionmakers with final authority to establish municipal policy.  Pembaur, 

.  Plaintiff has not made the requisite showing that either of these contracted 
medical staff were policymakers for WCJ.  Indeed, Defendants have cited to persuasive 
authority to support a finding that Jensen’s and Dresel’s medical decisions in day-to-day 

medical care of Plaintiff do not constitute policymaking.  See Washington v. Esch, Civ. 
No. 17-6, 

, at *1 (D. Neb. May 24, 2017) (holding nurse’s  
discretionary authority regarding individual treatment plans did not make the County 
liable for her actions); Awalt v. Marketti, 

 (N.D. Ill. 2014) 
(holding jail nurse’s decisions in treating detainee medical conditions were “discrete 

exercises of discretion that nearly all professionals make every day”).  The Court 
concludes that Jensen’s and Dresel’s medical decisions were discretionary in nature and 
do not amount to official policymaking.  Therefore, there can be no Pembaur municipal 
liability for their actions.                                              
     2.   Unofficial Custom                                          
Plaintiff also argues that there were systemic deficiencies at the Jail that were so 
widespread that they constitute an unofficial policy or custom.  Plaintiff points to 

evidence that he claims shows a pattern of inadequate health screenings at intake, 
inadequate hours for the contracted qualified medical health professionals, inadequate 
record keeping and failure to track mentally ill inmates, failure to take mental health into 
account when using force and segregation as punishments, and failure to provide 
adequate mental healthcare.  Plaintiff submits that he has demonstrated a persistent and 

continuing pattern of unconstitutional conduct relating to the custody and care of 
mentally ill inmates.                                                     
An unofficial custom is a “practice [that] is so widespread as to have the force of 
law.”  Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 

 (1997).  An 
unofficial custom can be established through “a continuing, widespread, and persistent 

pattern of unconstitutional misconduct” that is “so pervasive among non-policymaking 
employees of the municipality that it effectively has the force of law.”  Bolderson, 

.  To establish Monell liability based on an unofficial custom, Plaintiff must 
show a widespread pattern of constitutional violations, that Washington County had 
notice of the custom and acted with deliberate indifference, and that Plaintiff’s injuries 

were caused by the custom.  Corwin v. City of Independence, Mo., 

 (8th 
Cir. 2016).                                                               
Here, Plaintiff has failed to make such a showing.  Plaintiff has not demonstrated 
an underlying constitutional violation to support the Monell claim.  Nor has he pointed to 
sufficient record evidence to show a widespread pattern of constitutional violations.  
Indeed, Plaintiff has not made a showing that any of the alleged systemic deficiencies run 
afoul the Constitution or pointed to evidence of previous determinations that WCJ staff 

was deliberately indifferent to inmates’ medical needs or constitutional rights with 
respect to health screenings, segregation, or the provision of health care in prison.  In 
fact, the Eighth Circuit determined that there is no underlying constitutional violation to 
support a deliberate indifference claim.  Peterson, 

.  In addition, the record 
evidence does not show that the Jail’s nurses systemically failed to review prior medical 

history during initial screenings, that the hours of the Jail’s contracted qualified mental 
health professional negatively affected the provision of mental health care such that it 
violated the Constitution, or that WCJ officers systemically failed to chart Plaintiffs 
refusals to take medication.  Further, Plaintiff argues that there is a widespread pattern at 
WCJ of failing to consider an inmate’s mental health when disciplining or placing them 

in segregation.  However, Plaintiff has not demonstrated a systemic pattern of doing so or 
that any such failure violated the Constitution.                          
For the reasons stated above, the Court concludes that Plaintiff has not carried his 
burden on summary judgment to show a continuing, widespread, and persistent pattern of 
unconstitutional conduct.  The Court finds that there is no genuine issue of fact that 

would support an unofficial custom claim to support Monell liability.     
     3.   Failure to Train                                           
Finally, Plaintiff argues for Monell liability under a failure to train theory.  
Inadequate training “may serve as the basis for § 1983 liability only where the failure to 
train amounts to deliberate indifference to the rights of persons with whom the police 
come into contact.”  City of Canton, 

.  Thus, failure to train or supervise 
can be established through a showing that:  (1) the municipality’s training was 

inadequate; (2) the municipality was deliberately indifferent to the rights of others in 
adopting the training practices; and (3) an alleged deficiency in the training actually 
caused the plaintiff’s injury.  Pitts v. Ramsey County, Civ. No. 17-4261, 

, at *10 (D. Minn. May 25, 2018).  “Policymakers’ continued adherence to 
an approach that they know or should know has failed to prevent tortious conduct by 

employees may establish” deliberate indifference necessary to trigger municipal liability.  
Connick v. Thompson, 

 (2011) (internal quotations and citation omitted).  
But “[w]ithout notice that a course of training is deficient in a particular respect, 
decisionmakers can hardly be said to have deliberately chosen a training program that 
will cause violations of constitutional rights.”  

                     

Here, Plaintiff points to evidence that he claims demonstrates inadequate training 
with respect to mentally ill inmates, that the County was deliberately indifferent in 
adopting its inadequate training policies, and that the deficiencies in training harmed 
Plaintiff.  Specifically, Plaintiff points to evidence that he claims shows that the jail staff 
and medical unit were not adequately trained on mental illness, that officers were not 

trained on how to provide access to mental health care, and that better training would 
have helped staff recognize his need for higher levels of medication and general 
psychiatric care.                                                         
Despite Plaintiff’s citation to evidence that he claims demonstrates improper 
training, Plaintiff has not connected the asserted training deficiencies with an underlying 
constitutional violation.  Without that, there can be no Monell claim.  And even if training 

was inadequate, Plaintiff has not demonstrated that Washington County had notice that 
its procedures were inadequate and likely to lead to a constitutional violation.   
Plaintiff’s remaining arguments in support of its failure to train theory (that more 
mental health training would have changed the officers’ use of chemical spray or 
segregation) are speculative.  There is no showing that the use of chemical spray or 

segregation on a mentally ill inmate, without more, violates a clearly established right.  
Therefore, Washington County could not be on notice that it was unconstitutional to train 
its officers in the use of those methods.  See Szabla v. City of Brooklyn Park, 

 (8th Cir. 2007) (en banc) (“[A] municipal policymaker cannot exhibit fault 
rising to the level of deliberate indifference to a constitutional right when that right has 

not yet been clearly established.”).                                      
For the reasons stated above, the Court grants Defendants’ motion for summary 
judgment on Plaintiff’s failure to train claim under Monell.  Therefore, Defendants are 
entitled to summary judgment on Plaintiff’s Monell claim.                 
C.   State-Law Claims                                                

Plaintiff asserts state-law claims for assault, battery, unauthorized use of force, 
negligence, and intentional infliction of emotional distress claims.  (Am. Compl., 
Counts 10-15.)  These claims involve the actions of remaining Defendants Heinen, 
Olson, Klinkner, Warneke, Cahill, Frantsi, Glassmaker, Dyck, Scheele, De La Rosa, 
Leibel, Kaphing, and Washington County.9  Defendants submit that official and vicarious 
official immunity bar state-law tort claims against these Defendants.  In the alternative, 
Defendants argue that even if the state-law tort claims are not barred by official 

immunity, they fail as a matter of law.                                   
Official immunity shields public officials from state-law claims when their duties 
require the exercise of discretion, so long as the official has not committed a willful or 
malicious wrong.  Pletan v. Gaines, 

 (Minn. 1992).  In the context of 
official immunity, “[m]alice ‘means . . . the intentional doing of a wrongful act without 

legal justification or excuse, or, otherwise stated, the willful violation of a known right.’”  
Rico v. State, 

 (Minn. 1991 (quoting Carnes v. St. Paul Union 
Stockyards Co., 

 (Minn. 1925)); see also Brown v. County of Golden 
Valley, 

 (8th Cir. 2009).                             
“Official immunity is intended ‘to protect public officials from the fear of personal 

liability that might deter independent action.’”  Dokman v. Cnty. of Hennepin, 

 (Minn. Ct. App. 2001) (quoting Janklow v. Minn. Bd. of Exam’rs for 
Nursing Home Adm’rs, 

 (Minn. 1996)).  “Whether official 
immunity applies requires the court to focus on the nature of the particular act in 
question.”  Johnson v. Morris, 

 (Minn. 1990).  While discretionary 


9    Plaintiff asserts claims for assault, battery, and “unauthorized use of force” against 
“all defendants.”  However, upon review, Kaphing, Leibel, Heinen, and Warneke were 
not involved in the use of force incidents.  Therefore, Counts 10-12 are properly 
dismissed as asserted against these defendants.                           
duties are immunized from personal liability, ministerial duties are not.  Rico, 

.  Ministerial duties are “absolute, certain[,] and imperative, involving 
merely execution of a specific duty arising from fixed and designated facts.”  

 (quoting 

Cook v. Trovatten, 

 (1937)).  Discretionary conduct requires 
individual professional judgment that “reflects the professional goal and factors of a 
situation.”  Vasallo ex rel. Brown v. Majeski, 

 (Minn. 2014).  
Whether an officials’ duty is discretionary or ministerial is a question of law.  Kelly v. 
City of Minneapolis, 

, 664 n.5 (Minn. 1999).                

There is an exception to official immunity—it does not protect an official who 
commits a willful or malicious wrong.  Rico, 

.  “In the official 
immunity context, willful and malicious are synonymous.”  

.  A public official 
can defeat a claim of malice by showing one of three things:  (1) that the conduct was 
objectively legally reasonable; (2) that the conduct was performed in good faith; or 

(3) that the right allegedly violated was not clearly established.  Mitchell v. Dakota Cnty. 
Soc. Servs., 

 (8th Cir. 2020).                           
     1.   Non-Medical Prison Officials                               
Plaintiff asserts state-law claims against Heinen, Warneke, Cahill, Frantsi, 
Glassmaker, Dyck, Scheele, De La Rosa, and Olson.  The Court considers whether these 

officers are entitled to official immunity.                               
With respect to Heinen, the Court has already concluded that his creation and 
implementation of the Care Plans was discretionary.  Again, Heinen developed the Care 
Plans, addressed Plaintiff’s privileges, instituted restrictions (including segregation), and 
sought civil commitment based on Plaintiff’s behavior and security concerns.  These 
decisions were all discretionary in nature.  In addition, the Eighth Circuit dismissed the 
deliberate indifference claim against Heinen and, as discussed above, the restrictions 

placed on Plaintiff via Heinen’s Care Plans did not violate a clearly established right.  By 
extension, the Court also concludes that there is no support in the record to find that 
Heinen’s conduct was willful or malicious.  And for the same reasons, the Court finds 
that Warneke’s actions, in participating in weekly meetings to discuss Plaintiff and in 
reviewing use of force reports, are also discretionary.  Thus, the Court finds that Heinen 

and Warneke are entitled to official immunity.                            
Plaintiff’s claims against Cahill, Frantsi, Glassmaker, Dyck, Scheele, and De La 
Rosa relate to their involvement in the uses of force on February 19, February 23, 
February 25, March 24, and May 1.  Their decisions regarding the use of force and 
security measures were discretionary.  See, e.g., Wealot v. Brooks, 

 

(8th Cir. 2017); Davis v. White, 

 (8th Cir. 2015); Kelly, 

; Teasley v. Forler, 

 (E.D. Mo. 2008).  In addition, the 
Eighth Circuit determined that officers’ conduct in the uses of force on February 19, 
February 23, February 25, March 24, and May 1 was objectively reasonable or did not 
violate a clearly established right.  Therefore, no reasonable juror could find that the 

officers’ conduct was willful or malicious.  See Hayek v. City of St. Paul, 

 (8th Cir. 2007).                                                     
Therefore, the Court concludes that Defendants Cahill, Frantsi, Glassmaker, Dyck, 
Scheele and De La Rosa are entitled to official immunity for the uses of force (and 
related failure to intervene claims) that occurred on February 19, February 23, 
February 25, March 24, and May 1.10                                       
The one use of force incident that remains in this action is the May 19 incident 

involving Olson.  Defendants argue that even though there is a fact issue as to Olson’s 
use of force during that incident, he is entitled to official immunity for the related state-
law claims because his use of the chemical spray was discretionary and neither willful 
nor malicious.  The Court agrees that the use of the spray was discretionary but finds that 
a fact issue remains as to whether his actions were malicious or willful.  Therefore, the 

Court finds that Olson is not entitled to official immunity on this claim. 
     2.   WCJ Medical Staff                                          
The question of official immunity for medical decisions, like those made by 
Kaphing and Leibel, is more complicated under Minnesota law, which carves out certain 
decisions made by medical professionals from the official immunity doctrine.  See 

Terwilliger v. Hennepin County, 

 (Minn. 1997) (“Nothing in our 
case law dictates that official immunity protects county doctors from every form of 
medical malpractice liability.”).  In Terwilliger, the Minnesota Supreme Court considered 
whether medical personnel at a county mental health facility, including a psychiatrist, 
were entitled to official immunity for their alleged negligence in treating a patient who 



10   Olson is also entitled to official immunity to the extent that he was involved in 
these incidents.                                                          
later committed suicide.  

.  The court ruled that the employees’ treatment 
decisions did not constitute the type of discretion protected by immunity.  

.   
In the case before us, the challenged conduct of the Mental Health Center’s 
employees does not implicate the concerns of official immunity. . . . But 
decisions of this kind—no matter how difficult and no matter how much 
professional judgment is required—do not involve the discretion protected 
by official immunity; they only implement Hennepin County’s established 
public policy of providing treatment for its mentally ill citizens.  And 
unlike the policeman’s split-second decision whether to engage in a high-
speed chase, [the psychiatrist] and the other professionals involved based 
their decisions not only on what they observed of [the patient] but also on 
the patient’s medical history and on consultations with [him].       

  (citations omitted).  The court emphasized that the county’s mental health employees 
made decisions based on the same considerations and subject to the same risks as private 
practitioners who are subject to malpractice liability and concluded that extending 
immunity would erect a shield against malpractice that is unavailable to private 
practitioners.  

  Thus, the court made clear that the exercise of medical discretion is not 
the kind of discretion official immunity is meant to protect.  See also Stodgell v. City of 
Warroad, Civ. No. 03-258, 

, at *6 (Minn. Ct. App. Sept. 16, 2003) 
(“That the ambulance attendants exercised discretion, however, is not in dispute.  Rather, 
the critical distinction here is that the ambulance attendants were exercising their medical 
discretion, which is not subject to official immunity despite their municipal 
employment.”).                                                            
Defendants cite to Bailey v. City of St. Paul, 

 (Minn. Ct. 
App. 2004) to support the application of official immunity.  In Bailey, the court applied 
official immunity to a government-employed ambulance crew.  However, in doing so, the 
court specifically distinguished the facts of its case from those of Terwilliger, explaining 
that the acts of the ambulance crew were more analogous to the acts of a police officer 
making split-second decisions on whether to engage in a high-speed chase than to the 

doctors and staff “who were able to take the time to gather the patient’s medical 
information and reflect on appropriate treatment based on analysis of that information.”  
Bailey, 

.  Here, Kaphing and Leibel arranged for medical and mental 
health care for Plaintiff and referred him to a separate qualified mental health 
professional (whom Plaintiff has not sued).  The Court finds that Kaphing’s and Leibel’s 

decisions regarding Plaintiff’s care, while technically discretionary, are more akin to the 
doctors in Terwilliger because they had time to gather Plaintiff’s medical information and 
reflect on appropriate treatment.  They were exercising their professional judgment and 
medical discretion.  Therefore, the Court concludes that their conduct is not subject to 
official immunity.                                                        

Defendants argue, in the alternative, that the state-law negligence claim asserted 
against Kaphing and Leibel fails as a matter of law.  A plaintiff asserting a claim for 
medical negligence must prove the following elements:  “(1) the applicable standard of 
care; (2) the defendant’s departure from that standard of care; and (3) that the departure 
from the standard of care directly caused the patient’s injury.”  Erickson v. Pope County, 

Civ. No. 19-3061, 

, at *44 (quoting Smits v. Park Nicollet Health 
Servs., 

, 678 (Minn. Ct. App. 2021)); see also McRae v. Group Health 
Plan, 

 (Minn. 2008) (setting forth elements of medical negligence).   
Plaintiff has submitted evidence that Kaphing and Leibel were aware of, or should 
have been aware of, Plaintiff’s mental illness and that he sustained injuries as a result of 
the lack of treatment of that illness.  Not only did Plaintiff’s correctional records contain 

evidence of his history of mental illness, but WCJ staff recorded several symptomatic 
presentations of manic behavior.  Plaintiff submitted expert testimony detailing the risks 
to Plaintiff’s health attendant to his serious mental illness and his decompensation while 
at WCJ.  (Doc. No. 190-4.)  Defendant argues that Plaintiff has failed to meet his burden 
to establish that Kaphing’s and Leibel’s actions caused his injuries, as opposed to other 

causes such as his pre-existing issues and the treatment decisions of others.  The Court 
acknowledges that a jury may well find that Plaintiff has not established causation.  But 
based on the record before it, the Court finds that there are genuine issues of material fact 
as to whether these Defendants departed from the standard of care and whether any such 
departure caused Plaintiff’s injury.  Therefore, the Court denies summary judgment as to 

the negligence claim against Kaphing and Leibel.11                        
     3.   Washington County                                          
Official immunity also protects government entities from vicarious liability for 
actions that are entitled to immunity.  See, e.g., Hayek, 

.  Here, 
Washington County is entitled to vicarious official immunity as to the state-law claims on 


11   To the extent that Count 15, which is named “Intentional Infliction of Emotional 
Distress” but appears to state a claim for “Negligent Infliction of Emotional Distress” is 
coextensive with the negligence claim against Kaphing and Leibel, it also survives 
summary judgment.                                                         
which the officials are entitled to official immunity.  Therefore, Washington County is 
entitled to summary judgment on Plaintiff’s state-law claims against:  (1) Heinen and 
Warneke; and (2) Cahill, Frantsi, Glassmaker, Dyck, Scheele, De La Rosa and Olson 

insofar as they relate to the incidents on February 19, February 23, February 25, 
March 24, and May 1.  However, because the Court has declined to apply official 
immunity to Olson for his actions on May 19, 2018 and to Kaphing and Leibel for their 
provision of medical care to Plaintiff as implicated in Counts 13 and 15, the Court denies 
Washington County summary judgment on those claims.                       

                     CONCLUSION                                      
The Court underscores that while Defendants are entitled to summary judgment on 
many of the claims discussed above, this case highlights serious issues that arise in the 
prison setting when housing mentally ill inmates.  While many of Plaintiff’s claims are 
legally untenable, particularly after the Eighth Circuit’s decision and guidance, that does 

not mean WCJ’s procedures for engaging with mentally ill inmates cannot or should not 
be reevaluated and improved.  Considering this, and the fact that this case now involves a 
single incident on May 19 and a limited set of state-court claims related to the provision 
of mental health care in WCJ, neither of which are guaranteed (or even likely) to be 
victorious at trial, the Court feels that it is in the best interest of all parties to attempt to 

resolve this matter and work to make improvements where practical.        

Based on the files, record, and proceedings herein, and for the reasons stated 
above, IT IS HEREBY ORDERED that:                                         
1.   Defendants’ Motion to Dismiss and for Summary Judgment (Doc.    
No. [158]) is GRANTED IN PART as follows:                                 
     a.   Defendants are entitled to summary judgment on Plaintiff’s 

conditions-of-confinement claim and Count 1 is DISMISSED WITH        
PREJUDICE;                                                           
     b.   Defendants are entitled to summary judgment on Plaintiff’s Monell 
claim and Count 4 is DISMISSED WITH PREJUDICE;                       
     c.   Defendants are entitled to official immunity on Plaintiff’s state-law 

claims as they are asserted against Defendants Heinen, Warneke, Cahill, Frantsi, 
Glassmaker, Dyck, Scheele and De La Rosa and Counts 10-15 are DISMISSED 
WITH PREJUDICE insofar as they are asserted against them;            
     d.   All state-law claims asserted against Olson, except as they might 
relate to the May 19, 2018 incident, are DISMISSED WITH PREJUDICE;   

     e.   Counts 10-12 are DISMISSED WITH PREJUDICE as they are      
asserted against Kaphing, Leibel, and Warneke;                       
     f.   Washington County is entitled to summary judgment on Plaintiff’s 
state-law claims against:  (1) Heinen and Warneke; and (2) Cahill, Frantsi, 
Glassmaker, Dyck, Scheele, De La Rosa and Olson insofar as they relate to the 

incidents on February 19, February 23, February 25, March 24, and May 1. 
2.   Defendants’ Motion to Dismiss and for Summary Judgment (Doc.    
No. [158]) is DENIED IN PART as follows:                                  
     a.   Plaintiff’s state-law claims for negligence (Count 13) and negligent 
infliction of emotional distress (Count 15) as they are asserted against Kaphing 
and Leibel remain for trial.                                         

     b.   Plaintiff’s state-law claims related to Olson’s actions during the 
May 19, 2018 incident remain for trial.                              
     c.   Washington County is not entitled to summary judgment on the 
surviving claims against Olson for his actions on May 19, 2018, or claims against 
Kaphing and Leibel related to their provision of medical care to Plaintiff. 


Dated:  October 29, 2024      s/Donovan W. Frank                          
                         DONOVAN W. FRANK                            
                         United States District Judge