Michael Neudecker, Appellant, vs. City of Bloomington, Respondent, Boisclair Corporation, Respondent.

Michael Neudecker, Appellant, vs. City of Bloomington, Respondent, Boisclair Corporation, Respondent. A05-2132, Court of Appeals Unpublished, October 3, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2132

 

 

Michael Neudecker,

Appellant,

 

vs.

 

City of Bloomington,

Respondent,

 

Boisclair Corporation,

Respondent.

 

 

Filed October 3, 2006

Affirmed
Klaphake, Judge

 

Hennepin County District Court

File No. PI 04-16086

 

 

Michael Neudecker, 1500-82nd Street, Victoria, MN  55386 (pro se appellant)

 

Jon K. Iverson, Jeffrey Alan Egge, Iverson Reuvers, 9321 Ensign Avenue South, Bloomington, MN  55438 (for respondent City of Bloomington)

 

Bradley D. Hauswirth, Kimberly G. Behm, Wagner, Falconer & Judd, Ltd., 1700 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for respondent Boisclair Corporation)

 

            Considered and decided by Klaphake, Presiding Judge, Lansing, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Michael Neudecker challenges the district court's grant of summary judgment to respondents Boisclair Corporation and the City of Bloomington.  Because appellant failed to allege a prima facie case of discrimination under the Minnesota Human Rights Act (MHRA) against Boisclair and further failed to allege a prima facie case of violation of 42 U.S.C. § 1983 (2000) or discrimination under the MHRA against the city, we affirm.

D E C I S I O N

            The district court shall grant summary judgment if the pleadings, discovery, and affidavits show that there are no genuine issues of material fact and that either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  The appellate court must review the evidence in a light most favorable to the non-moving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  Summary judgment is appropriate when the nonmoving party fails to establish the existence of an essential element of the cause of action.  Naegele Outdoor Advert. Co. v. City of Lakeville, 532 N.W.2d 249, 252 (Minn. App. 1995), review denied (Minn. July 20, 1995). 

            Summary Judgment to Boisclair

            The MHRA prohibits discrimination in employment, housing and real property, public accommodations, public services, and education.  Minn. Stat. § 363 A. 02, subd. 1 (2004).  Appellant fails to specify in which forum the discrimination occurred, but presumably he is alleging discrimination in housing and real property, or in the area of public accommodations.  See id., subd. 1(a)(2), (3).  This court has previously determined that these two areas of the MHRA do not apply to the guest of a tenant of an apartment building.  Wayne v. MasterShield, Inc., 597 N.W.2d 917, 920-22 (Minn. App. 1999), review denied (Minn. Oct. 21, 1999).  We concluded that the housing and real estate protections of the MHRA extend only to the sale, rental, or lease of real property, and do not create a cause of action for guests of tenants.  Id. at 920.  We further concluded that public accommodations do not include apartment complexes and condominiums, which are essentially private, non-transient dwellings.  Id. at 922.  Thus, appellant's allegations against Boisclair fail to set forth a claim under the MHRA, and the district court therefore did not err by granting summary judgment to Boisclair.

            Summary Judgment to the City

            A municipality may be held liable for violations of 42 U.S.C. § 1983 (2000).  Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035 (1978).  A municipality's liability cannot be predicated solely upon the acts of an employee-tortfeasor, but must involve an official policy or municipal custom as the source of the constitutional deprivation.  Id. at 694, 98 S. Ct. at 2037-38.   Proof of the existence of an official policy or municipal custom must be based on more than a single incident of unconstitutional conduct.  City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S. Ct. 2427, 2436 (1985). 

            Appellant suggests that the city has a policy or custom of frisking only males involved in domestic disputes.  The city provided a copy of the official police department policy for handling domestic disputes, which contains no guidelines suggesting that male participants are to be frisked while female participants are not.  There is nothing in the record to suggest that this is a municipal custom.  Appellant, who told officers that he was no longer a tenant in the building, was asked to step into the hallway; after he did so, officers conducted a pat search for weapons.  The female tenant, however, was not asked to step into the hallway.  The difference in treatment appears based not on gender, but on tenancy.  Absent some indication that there was an official policy or municipal custom approving disparate treatment based on gender, the district court properly granted summary judgment to the city on appellant's claims under 42 U.S.C. § 1983.

            The district court further concluded that appellant failed to establish a prima facie case of disability discrimination against the city under the MHRA.  "It is an unfair discriminatory practice to discriminate against any person in the access to, admission to, full utilization of or benefit from any public service because of . . . disability."  Minn. Stat. § 363 A. 12, subd. 1 (2004).  Police departments are considered to be public services.  See State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 570 (Minn. 1994). 

            An unfair discriminatory practice can be established by showing

(1) an adverse difference in treatment with respect to public services . . . when compared to the treatment accorded others similarly situated except for the existence of an impermissible factor [such as disability]; or (2) treatment so at variance with what would reasonably be anticipated absent discrimination that discrimination is the probable explanation.

City of Minneapolis v. Richardson, 307 Minn. 80, 88, 239 N.W.2d 197, 202 (1976).  The alleged discriminatory conduct must be examined in light of the totality of the circumstances.  Beaulieu, 518 N.W.2d at 572. 

            Appellant claims discrimination based on the fact that he was searched and the female tenant was not.  Again, the disparate treatment appears based on tenancy, not on disability.  Further, because appellant alleges that both he and the female tenant suffer from psychological disabilities, it is less likely that appellant was singled out because of his disability.  The record establishes that the police department has treated appellant respectfully for many years, despite his disability, making it unlikely that the frisk was based on any discrimination.  When viewed in light of the totality of the circumstances, we conclude that the district court did not err by granting summary judgment to the city.

            Motion to Compel

            A district court is given broad discretion in its handling of discovery orders, which will not be overturned absent a clear abuse of discretion.  Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990). 

            The district court denied appellant's motion to compel answers to his discovery requests by describing the motion as "moot."  Appellant's motion to compel answers to interrogatories and production of documents from Boisclair was brought on May 23, 2005, which was three days after the district court granted summary judgment to Boisclair.  Appellant's request for admissions from Boisclair was made on April 6, 2005, almost one month after the court heard Boisclair's motion for summary judgment.  Under these circumstances, it was within the district court's discretion to deny appellant's motion to compel discovery from Boisclair.

            With respect to appellant's motion against the city, a full copy of the city's responses to discovery is not included in the record.  The city produced a partial copy of its answers to interrogatories, in which it provided the names of all the officers involved in the incident and its training manual.  Based on the material in the record, it is unlikely that any discovery would improve appellant's case against the city.  We therefore conclude that the district court did not abuse its discretion by denying appellant's motion to compel discovery from the city.

            Affirmed.