Freedom-4You: Steinhauser et al v. City St.

Paul_Magner et al Civ 05-461

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Friday, August 1, 2008

Steinhauser et al v. City St.Paul_Magner et al Civ 05-461
Legal Notice to all Bloggers pdf file transposed from http://www.ademocracy.blogspot.com/ Pgs 1 thro 55 Educational for all St. Paul Citizens, Homeowners,Taxpayers victims of DSI http://www.ci.stpaul.mn.us/

Blogger: A Democracy - Post a Comment Bob said... Hi All, I will be posting this summary judgement by the "defendants" (City of Paint Paul) in sections on this thread. There is 55 pages total. This is page 1 thru part of page 8. UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA ________________________________________________________________________ Civil No.: 05-461 JNE/SRN Frank J. Steinhauser, III, et al., Plaintiffs, vs. City of St. Paul, et al., Defendants. DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF SUMMARY JUDGMENT ________________________________________________________________________ INTRODUCTION Plaintiffs are former landlords who at one time owned rental property within the City. Like any landlord with substandard housing stock in violation of City codes, they were subject to the City’s lawful code enforcement. After selling many of their properties, many of which were sold at a substantial profit, they now claim that the code enforcement was in violation of various federal and state laws. Plaintiffs’ claims in sum and substance are that the City has illegally targeted some, but not all, of their properties for code enforcement based on the protected class status of many of their tenants. Plaintiffs make this claim although Plaintiffs do not necessarily have protected class tenants at allegedly targeted homes, at times admit that the alleged illegal code enforcement had nothing to do with the identity of their tenants, and fault the City for not targeting other landlords who had protected class tenants. Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 1 of 55 2 Plaintiffs have taken forty-five depositions and have searched over a million documents for evidence to support their claims for over four years. Plaintiffs do not have any evidence to support their causes of action and, in fact, make crucial admissions that support Defendants’ position that their claims are entirely meritless. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendants seek summary judgment in their favor as there are no genuine issues of material fact. STATEMENT OF FACTS City of St. Paul Code Enforcement Since 1993, the City Council determined that there existed in the city, structures that were substandard and lacking in basic facilities constituting a menace to public health, safety and welfare of its citizens. Therefore, the Council enacted Chapter 34 of the Saint Paul Legislative Code (“SPLC”). (Exhibit 3; pp. 0558-0573). The Council found

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the existence of such conditions aggravated urban blight requiring the establishment and enforcement of minimum property standards. (Exhibit 3, p. 0558). In 2003, the Council established the Department of Neighborhood Housing and Property Improvement, (“NHPI”), formerly known as Code Enforcement. (Exhibits 1 and 2). The duties of NHPI consists of administering and enforcing city housing and property maintenance codes. Chapter 14A of the SPLC describes the duties and responsibilities of NHPI. (Exhibit 2). NHPI is responsible for administrating and enforcing multiple city Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 2 of 55 3 ordinances to accomplish the goals of providing minimum property maintenance standards for all structures and premises within the City. To accomplish this, NHPI is responsible for investigating all citizen complaints concerning problem properties in neighborhoods and enforcing the city code. (Exhibit 11, pp. 409, 410). During the time-frame of this lawsuit, Defendant Andy Dawkins was the appointed Director of NHPI by Mayor Kelly. (Exhibit 8, p. 205). According to Dawkins, Mayor Kelly “believed that the city’s future was dependant upon having an aggressive, consistent stepped up code enforcement department.” (Exhibit 8, p. 118). In response to the Mayor’s vision, Dawkins developed the following mission statement for NHPI: “to keep the city clean, keep its housing habitable, and make neighborhoods the safest and most livable anywhere in Minnesota.” (Exhibit 5, p. 40012). Dawkins’ priorities were: 1) to investigate citizen complaints and respond to calls for service, 2) conduct routine inspection patrols, 3) conduct proactive sweeps, 4) close down problem properties, and 5) enforce dwelling unit registration provisions. (Id.). In 2002, Dawkins developed a packet of Rules and Procedures for inspectors. (Exhibit 7). Dawkins said the goal was to provide consistent application of these rules. (Id., p. 50083). However, because of the limited number of inspectors and resources, Dawkins indicated that inspectors must use discretion in applying these rules and suggested the following priorities in exercising that discretion: “1. Serious health and Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 3 of 55 4 safety issues; 2. Cleaning up “problem properties”; 3. Garbage and nuisance violations; 4. Falling down and dilapidated structures; 5. Interior habitability has a higher priority than minor exterior violations, and 6. Structure with multiple violations gets priority.” (Id., pp. 50083-50093). In 2004, Dawkins’ NHPI website provided a guide for residents to work with NHPI concerning problem property complaints, routine code enforcement protocol, sweeps protocol, and notes for tenants and landlords. (Exhibit 6, pp. 40022-26). The website outlines NHPI’s comprehensive approach to dealing with “problem properties.” (Id.) A “problem property” is defined on the website as one where there are “constant calls to get rid of the junk, intolerable behavior by occupants and guests, etc.” (Id. p.40022). The website lists six steps for citizens to deal with a problem property. (Id., pp. 40022-24). Step one encourages citizens to exhaust all of the procedures in step one before proceeding to the subsequent steps. (Id., p. 40022). Routine NHPI enforcement included inspecting interior and exterior property. (Id., p. 40024). The website lists eight steps for routine code enforcement. (Exhibit 6; 40024-26). The most common complaints to NHPI are for “garbage/rubbish, mattresses, appliances, junk vehicles, graffiti, and overgrown properties.” (Id., p. 40024). When an inspector visits the property, the very first thing he/she does is to “determine the complaint is valid or ‘founded’ (i.e., finds a violation).” (Id.). If there is a violation, then Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 4 of 55 5 a correction order or abatement order is mailed to the occupant and the property owner. (Id.). NHPI Supervisor Magner describes the duties of an inspector as: “if you have a complaint, you need to investigate it to see if its valid, and if there is a violation of the law, you need to take enforcement action.” (Exhibit 11, p. 410). Code enforcement officers would inspect the properties and use their discretion when deciding what the appropriate code enforcement action should be. They could give written or verbal orders, depending on the situation, and consider the season it was and whether or not the particular correction could be made (i.e. would not require painting to be completed during winter months). (Exhibit 12, pp. 42, 62, 63, 78, 79; Exhibit 39, pp. 113-15; Exhibit 15, p. 66; Exhibit 14, p. 241; Exhibit 9, p. 34-35, Exhibit 10 p. 63). City’s code enforcement manager, Lippert, described the duties of inspectors stating, “we inspect properties for code violations, so that’s what we are looking for. If someone calls in a complaint on a property, we are going to look at the property and call the code violations.” (Exhibit 10, p. 237). When Plaintiffs asked Lippert about complaints that might possibly be ill-motivated, Lippert responded, “we are not dealing with the motivation of a complaint we’re only going to be looking for the validity of the complaint....[W]e are primarily a complaint-based system so we respond to complaints without taking into account motivation.” (Id., p. 238-239). Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 5 of 55 6 Dawkins was asked by Plaintiffs about pitfalls in the complaint-based system. (Exhibit 8, p. 678). Dawkins responded, “any time you’ve got a complaint-based system and I call in a complaint, I could be calling in because I don’t like you or because I got into a beef with you about something or other and I just want to call you in. And then we go out and look and see if it’s there. On the other hand, if you do a sweep, then there’s no - - the system isn’t susceptible to that problem.” (Id.). Dawkins explained that he moved the City from a complaint-based system to a proactive system, “[M]oving to a pro-active patrol system is a good thing - - not only for

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the obvious reasons such as a cleaner city, less blight, greater safety, higher property values and preserving affordable housing - but also because it undoes racism by reducing the possibility of one group manipulating the system against another group as to which properties get called - in.” (Id., p. 678). Besides moving to a pro-active patrol system, Dawkins utilized several tools for problem properties. (Exhibit 6, p. 40023). Those include, code enforcement orders to correct or abate, condemnation/vacant building registration, criminal charges, charging for excessive consumption of services, nuisance abatement orders (Exhibit 4), nuisance abatement (Minnesota Statute §617.80), rental registration, City Attorney initiated evictions, City initiated Tenant Remedies Action (Minnesota Statute §504B.401 et seq.) and real estate seizures. (Exhibit 6, p. 40023). Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 6 of 55 7 Plaintiffs questioned Dawkins about these tools, asking him which was his least favorite, Dawkins answered, “condemnation”. (Exhibit 8, p.666). Dawkins was asked what was the best tool, Dawkins answered, “voluntary compliance”. (Id.). Plaintiffs asked Dawkins to put the tools in order between voluntary compliance and condemnation. (Id.). Dawkins responded, “I didn’t like tagging. That was near the bottom. In terms of condemnation, I didn’t like to get to that. I hated getting to a $75.00 excessive consumption fee. To me, there was something going on at that property that the inspector needed to find out more about. Was it because they couldn’t read English? They didn’t have enough money to fix their place up, whatever. The second best favorite to voluntary compliance was you get a correction notice and you correct it in the time line.” (Id., pp. 666, 667). Dawkins was asked about the use of Tenant Remedy Actions. (Id., p. 667). Dawkins answered, “Tenant Remedy Action is one that I wanted to use the $200,000 that had been granted to the city to repair properties and I felt terrible that it was just sitting in this account gathering dust and not interest, and every dollar could be well spent fixing up a place. So I encouraged more Tenant Remedy Actions, especially as a way to avoid condemnations.” (Id., p. 667). In addition to these enforcement tools, Dawkins encouraged neighbors to voluntarily patrol their areas and keep them looking good. This was called the “Good Neighbor Program”. (Exhibit 6, p. 40026). Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 7 of 55 8 Dawkins was instrumental in providing changes to Section 34.18 of the SPLC to “provide landlords with a very clear direction on what their defenses could be if code enforcement was coming after them for tenant behavior.” (Exhibit 8, p. 628). Dawkins called this his “best lease management practices” and stated, “as long as the landlord has in the lease that the tenant must be law abiding, as long as the landlord patrols the property to monitor the lease, so long as the landlord takes action to enforce the lease if there’s a violation, then it’s a total defense to anything 8:55 AM Courts updated web site said... Federal Files are online Look at new Site Suggestion Lawyers Compromise all the time http://www.mnd.uscourts.gov/ Plaintiffs 1. Kelly Brisson Brisson purchased 297 Burgess Avenue, a duplex, on September 10, 2001 as a place to live and also rent out. (Exhibit 23, pp. 62, 63) Brisson was not a member of a protected class. (Exhibit 23, p. 89) When he purchased the property it was in deplorable condition and he admittedly did not have the money to make the necessary repairs. (Exhibit 23, pp. 46-48, 64-70, 99, 251) Brisson admits that many of the conditions for which he was cited actually existed on the property. (Exhibit 23, pp. 75, 81, 94, 95, 101, 119, 120, 121, 122, 124, 125, 126, 127) He admits that photos of his property taken by the Defendant in support of the City’s correction orders were accurate. (Exhibit 23, pp. 84, 85) He blames his tenant or others for some of the conditions. (Exhibit 23, pp. 112-116, 120-121) For example, Brisson’s lower unit tenant left without paying rent and the unit was “completely trashed.” (e.g., dog Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 8 of 55 9 urine, feces, and garbage in the house) (Exhibit 23, pp. 112-116) Brisson simply could not meet the deadlines set forth in the correction orders because he did not have the money to fix his property. (Exhibit 23, p. 127) Brisson eventually went through the Section 8 inspection and rented to Leo Sider, a friend of Brisson’s for fifteen years. (Exhibit 23, p. 131, 135, 136, 137). Brisson claims that Sider was disabled because he had serious back problems. (Exhibit 23, p. 132). Brisson has no evidence that any of the Defendants knew that Sider had received Section 8 assistance or that he was disabled with a bad back. (Exhibit 23, p. 136). In fact, he had no evidence that any Defendants had even met Sider. (Id.). Brisson admits that the identity of his tenant and his tenant’s disability status had absolutely nothing to do with the City’s code enforcement and condemnation. (Exhibit 23, pp. 132, 136-137, 169, 170, 268, 269). Brisson’s complaint is that he received a condemnation notice for the entire duplex when the upper unit was the only one that did not have electricity. (Exhibit 23, pp. 170, 171). Brisson admits that the photos that were taken on July 22, 2003, one week after he was issued a notice of condemnation, accurately depict his property on that date. (Exhibit 23, p. 180). On August 12, 2003, Brisson was issued another condemnation notice. (Exhibit 23, p. 196). Sider independently went to Legal Aid and retained an

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attorney to assist him in a tenant’s remedy action (TRA) against Brisson. (Exhibit 23, p. 197). The action brought by Sider was resolved. (Exhibit 23, pp. 197-199). The City did not have anything to do with the TRA or the settlement. (Exhibit 23, p. 199). Brisson Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 9 of 55 10 admits that he would have addressed all of the issues listed in the correction notices because the property needed it. (Exhibit 23, p. 254). 2. Mark Meysembourg Mark Meysembourg previously owned a number of rental properties within the City, but claims that only one of his properties, 970 Euclid St., has been the subject of alleged illegal targeting by Defendants. (Exhibit 22, p. 53). Meysembourg is not a member of a protected class. (Exhibit 22 p. 47) However, he claims that there was discriminatory code enforcement at 970 Euclid St. (Id.). Meysembourg admits that he had minority tenants at his other properties and that those properties were not targets of illegal code enforcement. (Exhibit 22, pp. 62-84). Meysembourg admits the code enforcement has actually helped his rental business many times. (Exhibit 22, p. 79). Meysembourg never rented to any Section 8 tenants so he admits that he could not have been treated differently because of renting to Section 8 tenants. (Exhibit 22, p. 100). He has no first-hand knowledge that Randy Kelly directed Andy Dawkins to try and gain access to interiors of properties. (Exhibit 22, p. 88). He has no facts to support his claim that Randy Kelly ordered inspectors to rid the City of “bottom of the barrel individuals” or “low-income individuals.” (Exhibit 22, pp. 90-91). He has no facts to support his claim that Randy Kelly maliciously and intentionally commenced a policy of discriminatory code enforcement, or that Randy Kelly selectively targeted for Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 10 of 55 11 discriminatory code enforcement properties with “bottom of the barrel, undesirable and low-income individuals.” (Exhibit 22, p. 92). Meysembourg’s entire lawsuit rests on the code enforcement of 970 Euclid St. He claims that other nearby properties were not held to the same standard as 970 Euclid St. (Exhibit 22, pp. 110-112). He states that his next door neighbor did an illegal foundation repair, but when the inspectors were inspecting Meysembourg’s property they did not cite the next door neighbor for the illegal foundation repair. (Exhibit 22, p. 110). He admits that his neighbor rents to protected class individuals and claims that his neighbor was not subject to code enforcement that he should have been subjected to. (Exhibit 22, pp. 110, 111). Meysembourg admits that he never reported his next door neighbor to code enforcement. (Exhibit 22, p. 111). Meysembourg’s allegations surround an inspection at 970 Euclid by Defendant Martin wherein she was accompanied by Officer Koehnen. (Exhibit 22, pp. 112-114). He claims they informed his tenants that he knew about the inspection and the inspection is okay with him, and that is the reason the tenants let them in. (Exhibit 22, pp. 114, 115). No affidavit or deposition testimony of any of Meysembourg’s tenant was ever presented to corroborate his statement of what he heard from his tenants. (Exhibit 22, p. 115). Meysembourg was sent a correction notice on November 15, 2002 listing a number of violations. (Exhibit 22, pp. 122-123). Meysembourg admits that many of the Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 11 of 55 12 deficiencies listed on the correction notice actually existed, but complains that some of the deficiencies were untrue. (Exhibit 22 pp. 123-129). Meysembourg appealed the correction notice to the legislative hearing officer. (Exhibit 22, p. 131). Meysembourg’s only issue on appeal to the legislative hearing officer was that the inspection was illegal and that the correction notice items should not be considered. (Exhibit 22, p. 136 ). He did not present any evidence that any of the violations were false. (Exhibit 22, p. 136). Meysembourg contacted the Department of Justice and informed them of what happened at his property. (Exhibit 22, p. 148). The Department of Justice Civil Rights Division did not find any prosecutable violation of federal law. (Exhibit 22, p. 148). Meysembourg could not identify any other occasion or property where he believed inspectors misrepresented their authority to gain entry to a property. (Exhibit 22, p. 150). Upon reinspection by the City, Meysembourg refused to let the inspectors back into the property. (Exhibit 22, p. 138). A search warrant was issued by the Ramsey County Court so a follow-up inspection could be completed. (Exhibit 22, p. 155). After that inspection, a correction notice was issued on January 2, 2003, listing a number of deficiencies. (Exhibit 22, pp. 156-158). Again, Meysembourg admits that some of the deficiencies existed, but disputes other deficiencies. (Id.). Upon the third inspection, Meysembourg came up to his property as Defendant Magner was coming out of the property’s basement. (Exhibit 22, pp. 159-160). Magner informed Meysembourg that there was not a proper safety relief valve on the boiler. (Exhibit 22, p. 160). Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 12 of 55 13 Meysembourg disagreed because he had St. Paul Plumbing there the year before and they put in a safety relief valve. (Exhibit 22, pp. 162, 163). Meysembourg later admits that there were two valves in the basement but he had nothing to show that one of the valves was working. (Exhibit 22, p. 200). Meysembourg received a notice of condemnation of his property dated February 3, 2003. (Exhibit 22, p. 164). Meysembourg appealed the condemnation order to the legislative hearing officer. (Exhibit 22, p. 169). Meysembourg limited his appeal to the illegality of the November 15, 2002, inspection and the question of whether or not there was a pressure relief valve on the boiler. (Exhibit 22, p. 170). The City then filed a TRA against the property. (Exhibit 22, p. 173). At the hearing on the TRA, the parties had a conversation about a code compliance inspection. (Exhibit 22, p. 176). After conferring with his attorney, Meysembourg agreed to do a code compliance inspection so that the TRA lawsuit was dropped. (Exhibit 22, p. 178). Meysembourg later disagreed with what had to be done as part of the code compliance. (Exhibit 22, pp. 179-182, 186, 188).

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Meysembourg admits that he would have, even without the code compliance inspection, done many of the repairs in order to be a responsible landlord. (Exhibit 22, p. 190, 191). Meysembourg has not indicated that his tenants at 970 Euclid were protected class individuals. (Exhibit 20, #3(c), (d), and (e)). [Meysembourg does not recall the race of his tenants but thinks 70 percent were African-American and Hispanics. Meysembourg Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 13 of 55 14 indicated he would supplement his answer concerning the specific of his tenant’s race, but has not done so] 3. Frank Steinhauser Steinhauser is a white male and former landlord who owned fifteen properties within the City. (Exhibit 20, at pp. 6, 7). Steinhauser admits that all of his properties were not subject to the alleged illegal code enforcement although all of his properties had the same “tenant base of minorities and low-income people.” (Exhibit 19, pp. 112, 113, 157). Steinhauser claims that the targeting of some of his properties because of the his tenant base began in early summer 2002 with his property located at 1038 Aurora. (Exhibit 19, p. 473). Steinhauser claims that a code enforcement officer was “stalking” him at his property at 1038 Aurora, but he did not know who the code enforcement officer who was “stalking” him. (Exhibit 19, p. 331). Steinhauser also claimed illegal code enforcement at 719 Sherburne, but could not identify any facts to support his claim. (Exhibit 19, p. 96). In fact, Steinhauser admitted that “the things [Lisa Martin] cited me for [at 719 Sherburne] were legitimate at the property.” (Exhibit 19, p. 334). Steinhauser also claimed that he was targeted at 953 Wilson and subject to illegal code enforcement at that property. (Exhibit 19, p.335) However, Steinhauser admits that he was not sure if there were any false claims made by code inspectors at the Wilson address and, in fact, admitted that [he] thinks “most of them were legitimate code deficiencies.” (Exhibit 19, p. 336). Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 14 of 55 15 Steinhauser also claims that his property at 118 Litchfield was illegally targeted based on the race of his tenants, but he admits that he did not remember who the tenant was. (Exhibit 19, pp. 206-208). In fact, Steinhauser admits that the tenants caused damage to 118 Litchfield. (Id.). He alleges that by the City enforcing its code against Steinhauser for tenant caused damage, the City was interfering with Steinhauser’s contract rights to pursue his damages’ claims against his tenants, because the City required him, instead of his tenants, to fix his property. (Exhibit 19, pp. 207, 208). Steinhauser complains that he was cited for doorknobs missing and admits that he replaced the doorknobs, but directs the cause of the doorknobs missing to his tenant. (Exhibit 19, p. 208). Steinhauser admits there was a gas leak in the stove but claims it was not his responsibility. (Exhibit 19, pp. 206, 207). He also admits the tenants ripped up the floor at 118 Litchfield. (Exhibit 19, p. 212). Finally, Steinhauser admits that many of the deficiencies cited against 118 Litchfield were, in fact, legitimate items. (Exhibit 19, p. 206). Steinhauser also claims the illegal entry and search of 118 Litchfield by code enforcement. (Exhibit 19, p. 501). However, he admits that he does not know whether or not the tenant or her son, white individuals, let them in. (Exhibit 19, p. 502, Exh. 20, p. 6). Steinhauser also claims illegal code enforcement at his property at 1024 Euclid, but admits that many of the deficiencies that he was cited for were legitimate and even possibly caused by tenants. (Exhibit 19, pp. 186-188; 199-200). Steinhauser took photos of 1024 Euclid that he admits legitimately show deficiencies in his properties. (Exhibit 19, Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 15 of 55 16 p. 312). Through the photos he attempted to document damage caused by the tenant. (Exhibit 19, pp. 312-315). The Police were called to 1024 Euclid on October 29, 2002, by a tenant because Steinhauser was “verbally threatening” the tenant. (Exhibit 40). Officer Wroblewski found the property, which had just been condemned by code enforcement, “uninhabitable.” (Id., 1770). She noted that there was “no heat or smoke detectors, rotting floors, running water in the bathroom (won’t stop), water damage, holes in the walls throughout where rats have access....”) (Id., pp. 1770-1771) Steinhauser’s verbal threats came after he learned that the property was condemned. The tenant reported to police that Steinhauser stated “Why are you doing this black bitch? Why do you have the state on my ass? Bitch you’re gonna lose in fucking court. You’ll be back on the fucking street!” (Id., p. 1771). Steinhauser admits that his property at 910 East Sixth St. had a number of legitimate deficiencies that he thought were most likely caused by the tenant. (Exhibit 19, pp. 414-416). He admits that he was responsible for the tenant caused damage and took photos to document it. (Id., p. 302) However, the rats that he was cited for which triggered the condemnation and code compliance “were not true.” (Exhibit 19, p. 417). He claims that since the rats citation was not true, a condemnation and code compliance should not have followed, and he should not have to pay to fix the legitimate code violations discovered because of the untrue rats citation. (Exhibit 19, p. 417-419). As he stated, “those code violations existed.” (Exhibit 19, p. 417). Steinhauser claims that he Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 16 of 55 17 was sent repair orders that were designed so that he could not comply with the repairs. (Exhibit 19, p. 359). However, he admits that he was able to comply with the orders. (Exhibit 19, p. 360). Steinhauser admits that there were rats at his property at 910 East Sixth St. but claims that the rats in his property came from a large pile of trash that was next door. (Exhibit 19, pp. 504-505). Steinhauser claims that there was an illegal entry at 910 East Sixth St. because his tenant LaChaka Cousette did not want the code enforcement officer to enter her apartment. (Exhibit 19, pp. 500-505). However, Cousette testified that on October 21, 2002, Lisa Martin and Officer Dean Koehnen came to her door and Martin explained to her that the unit downstairs was being condemned. (Exhibit 35, p. 69). Once Martin explained to Cousette why they had come to her door, Cousette agreed to allow

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them in. (Id., p. 143-144). Martin did all the talking. (Id. p. 144) According to Cousette, Officer Koehnen never ordered her to admit them into her home. (Id. p. 143) Steinhauser hired an B&E Pest Control to treat 910 East Sixth St. which noted that units were sub-par sanitation, and had mice and rats, and rats in basement. (Exhibit 19, p. 178-179, Exhibit 21). Steinhauser claims that what B&E Pest Control meant was no rats in basement, instead of rats in basement. (Exhibit 19, pp. 179-180). Steinhauser also claims that his properties at 910 and 921 York were subject to illegal targeting. (Exhibit 19, pp. 317-318). He claims the City gave him criminal tickets regarding the painting of the property. (Compl. at ¶¶ 198-201) However, Steinhauser admits that there was something wrong at the properties and he was able to fix it. (Exhibit Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 17 of 55 18 19, p. 362). Steinhauser admits that many properties in the City of St. Paul owned by him, owned by others, and owned by the Public Housing Agency, who have a similar tenant base (many protected class citizens), were not subject to illegal code enforcement. (Exhibit 19, p. 112, 113, 152-153, 524-526). STANDARD OF REVIEW Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c), Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1985); Unigroup, Inc. v. O'Rourke Storage & Transfer Co., 980 F.2d 1217, 1219-20 (8th Cir. 1992). “Summary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court determines materiality from the substantive law governing the claim. Anderson, 477 U.S. at 248. Further, “the nonmoving party may not merely rest upon allegations or denials in its pleadings, rather, they must by affidavits, ‘depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.’” Williams v. Thomson Co., No. 00-2256, 2003 U.S. Dist. LEXIS 4481, *17 (D. Minn. Mar. 21, 2003) (Exhibit 41), citing, Fed. R. Civ. P. 56(e); Celotex Co. v. Catrett, 477 U.S. 317, 324 (1986); U.S. v. Crane Co, 122 F.3d 559, 562 (8th Cir. 1997); McLaughlin v. Esselte Pendaflex Co., 50 F.3d 507, 511 (8th Cir. 1995). “A plaintiff may not merely point to Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 18 of 55 1 Plaintiffs alleges various causes of action against John and Jane Doe in their individual and official capacities. However, Plaintiffs have not indicated the identity of either Doe or identified any specific actions or involvement these individuals had with regard to the matters alleged in her complaint. Plaintiffs have failed to state a claim against these purported defendants upon which relief can be granted. See Frey v. City of Herculaneum, 44 F.3d 667, 672 (8th Cir. 1995) (complaint which did not indicate how defendants were involved in alleged violations was conclusory and failed to meet notice-pleading standard); Tatam v. Iowa, 822 F.2d 808, 810 (8th Cir. 1987) (per curiam) ("While pleadings are to be construed to do substantial justice . . . the pleading must at minimum be sufficient to give defendant notice of the claim."). 19 unsupported self-serving allegations, but must substantiate her allegations with sufficient probative evidence that would permit a finding in her favor.” Haas v. Kelly Services, Inc., 409 F. 3d 1030, 1034 (8th Cir. 2005), citing, Wilson v. Int’l Bus. Mach. Co., 62 F.3d 237, 241 (8th Cir. 1995). “Evidence, not contentions, avoids summary judgment.” Haas, 409 F.3d at 1036, quoting, Mayer v. Nextel West Co., 318 F.3d 803, 809 (8th Cir. 2003). ARGUMENT1 I. PLAINTIFFS RICO CLAIMS FAIL AS A MATTER OF LAW Plaintiffs allege that the defendants in their individual capacity committed and conspired to commit a RICO violation under 18 U.S.C. §§ 1962(c) and (d). To establish a civil violation of 18 U.S.C. § 1962(c), the Plaintiffs must prove that at least one of the individual “defendant[s] engaged in (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir. 1997), citing, Sedima v. Imrex Co., 473 U.S. 479, 496 (1985). See also United States v. Darden, 70 F.3d 1507, 1518 (8th Cir. 1995) (describing same elements in slightly different way). Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 19 of 55 20 Racketeering activity is defined through an exclusive list of criminal statutes referred to as predicate acts. 18 U.S.C. § 1961(1) (2006). Proof of at least two predicate acts are necessary to establish a pattern of racketeering activity. 18 U.S.C. § 1961(5). Further, a pattern is only established if the predicate acts are related, “amount to or pose a threat of continued criminal activity.” H. J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 240 (1989); Wisdom v. First Midwest Bank, 167 F.3d 402, 406 (8th Cir. 1999). “‘Continuity’ is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.” H. J. Inc., 492 U.S. at 241. If the alleged conduct is closed-ended, then a RICO violation is only established if the predicate acts occurred over a “substantial period of time.” Id. at 242. As a matter of law, the predicate acts must span more than one year. Webster Indus. v. Northwood Doors, Inc., 320 F. Supp. 2d 821, 850 (D. Iowa 2004). See also Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208, 1215 (8th Cir. 1993) (ten to eleven months insufficient); Cwick v. Life Time Fitness, Inc., No. 04-2731, 2004 U.S. Dist. LEXIS 18463 (D. Minn. Sept. 2, 2004) (Exhibit 42) (eight to nine months insufficient). Cf. Diamonds Plus, Inc. v. Kolber, 960 F.2d 765, 769 (8th Cir. 1992) (holding predicate acts over two years enough to establish a pattern). To establish their conspiracy claim under 18 U.S.C. § 1962(d), the Plaintiffs must first prove a violation of 18 U.S.C. § 1962(c). Darden, 70 F.3d at 1518. See also G-I Holdings, Inc. v. Baron & Budd, 179 F. Supp. 2d 233, 267 (S.D.N.Y. 2001), citing, Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 20 of 55 2 The Plaintiffs have plead the commission of Bank Fraud (18 U.S.C. § 1344), Mail Fraud (18 U.S.C. § 1341), Wire Fraud (18 U.S.C. § 1343), a Hobbs Act violation

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(18 U.S.C. § 1851), Tampering (18 U.S.C. § 1512), and Bribery (18 U.S.C. § 201). See Pl. Compl. 213(a)-(f). They also appear to have made an attempt to plead a violation of Interstate Travel or Transportation in Aid of Racketeering Enterprises (18 U.S.C. § 1952). See Pl. Compl. 213(g). 21 Cofacredit, S.A. v. Windsor Plumbing Supply Co., 187 F.3d 229, 244-245 (2nd Cir. 1999). Then the Plaintiffs must prove that a second defendant “objectively manifested an agreement to participate directly, or indirectly, in the affairs of [the] enterprise through the commission of two or more predicate crimes.” Handeen, 112 F.3d at 1355, quoting United States v. Bennett, 44 F.3d 1364, 1372 (8th Cir. 1995) (quotation omitted). The Plaintiffs have alleged multiple violations of seven predicate act statutes.2 After almost four years of discovery, however, the Plaintiffs have failed to identify facts which support a single violation of any predicate act statute. The Plaintiffs’ failure to prove that at least one individual Defendant, acting outside the scope of their employment for the City, committed at least two predicate acts, over a period of more than one year, translates into a failure to establish a RICO claim. Furthermore, aggressive enforcement of the housing code by the Defendants does not create a pattern of racketeering activity if those actions are adverse to landlords with code violations. See Sinclair v. Hawke, 314 F.3d 934, 943-944 (8th Cir. 2003) (discussing regulation by bank regulators). Housing code enforcement officers “do not become racketeers by acting like aggressive” housing code enforcement officers. Id., see also Terry A. Lambert Plumbing, Inc. v. Western Sec. Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 21 of 55 3 Plaintiffs also claim Defendants interfered with their rights under the Civil Rights Act of 1866, 42 U.S.C. Section 1982, which is the same analysis herein. E.g., Asbury v. Brougham, 866 F.2d 1276, 1279 (10th Cir. 1989). 22 Bank, 934 F.2d 976, 981 (8th Cir. 1991) (discussing normal banking activity taken by bankers). Any contrary “proposition is ludicrous on its face.” Sinclair, 314 F.3d at 943944. Plaintiffs have presented serious allegations of RICO violations against the individual defendants. Yet Plaintiffs’ independent and exhaustive search has failed to uncover any actual RICO violation. As a result, summary judgment is appropriate. II. PLAINTIFFS’ FAIR HOUSING ACT CLAIM FAILS AS A MATTER OF LAW3 Plaintiffs allege that Defendants violated their rights under the FHA by illegally using code enforcement to remove protected class citizens from the City. The FHA, 42 U.S.C. §§ 3601 et. seq., provides “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [42 U.S.C. § 3604].” These rights include the right to exercise, enjoy, encourage, or aid in the rental of homes to protected class citizens without race, color, religion, sex, familial status, or national origin being implicated. 42 U.S.C. § 3604(a). In order to bring suit under the FHA, 42 U.S.C. § § 3601, et. seq., an individual must have standing as an “aggrieved person.” 42 U.S.C. § 3613. Admittedly, it is very Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 22 of 55 23 easy for an individual to be an “aggrieved person” as they must only “claim . . . to have been injured by a discriminatory housing practice [or] believe . . . that such person will be injured by a discriminatory housing practice that is about to occur.” 42 U.S.C. § 3602(I). As a result, standing to sue under the FHA has been held to be as broad as that permitted by Article III of the United States Constitution. Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209 (1972). Apart from Article III standing, the Supreme Court has recognized prudential limits to standing, which limits the class of persons who may invoke the court’s remedial powers. Warth v. Seldin, 422 U.S. 490, 499, 45 L.Ed.2d 343, 95 S.Ct. 2197 (1975). When the asserted harm is a “generalized grievance” shared in substantially equal measure by a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction. Id., e.g., Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 221-227 (1974). Accordingly, although Plaintiffs may have Article III standing, the claimed injury runs afoul of prudential limits to standing because “its effects are indistinct from those felt by persons generally,” thereby depriving Plaintiffs of a unique stake in the controversy. Warth, 422 U.S. at 499. Plaintiffs’ alleged injury is indistinguishable from other landlords in the City who are similarly subject to the housing code. Plaintiffs generally claim the housing code is enforced more aggressively against them, but proof of such is without any comparative analysis as to how Defendants enforce the code against other landlords. For instance, Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 23 of 55 24 A. Disparate Impact To prove discrimination under a disparate impact analysis, Plaintiffs must show a facially neutral policy has a significant adverse impact on members of a protected minority group. Id., quoting, Chambers v. Omaha Girls Club, Inc., 834 F.2d 697, 700 (8th Cir. 1987); see also United States v. City of Black Jack, Mo., 508 F.2d 1179, 1184 (8th Cir. 1974) (plaintiff must show defendant’s conduct “actually or predictably results in racial discrimination”). Plaintiffs fail to establish both elements of their prima facie case. In the first instance, Plaintiffs make no attempt to identify a facially neutral policy. The crux of their argument is that the City maintained a discriminatory policy that aggressively targeted Plaintiffs and other St. Paul landlords. Although Defendants admit that identifying a facially neutral policy is easy and Plaintiffs need only look to the City’s policies, it is worth noting that Plaintiffs’ theory contradicts the existence of a facially neutral policy, and therefore, Plaintiffs’ disparate impact claim technically fails before it reaches the second prong.

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To succeed at the second prong, Plaintiffs must prove a significant adverse impact of the policy on a protected class. See Oti Kaga, Inc., 342 F.3d at 833. Plaintiffs cannot do so and therefore their disparate impact claim fails as a matter of law. Plaintiffs provide no evidence to support their sweeping claims that the City’s policies have a disparate impact on protected-class citizens. To prove a fair housing disparate impact claim statistics or some other analytical method is invariably used. Andrews v. City of New Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 25 of 55 26 York, No.CV-01-7333, 2004 U.S. Dist. LEXIS 30290 (E.D.N.Y. Nov. 22, 2004) (Exhibit 43), citing Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 575 (2nd Cir. 2003). In addition, plaintiffs must also use the appropriate comparison groups and first identify members of protected group that are affected by the neutral policy and then similarly situated persons who are not affected by the policy. Id., see also, Brown v. Omaha Housing Authority, No. 8:05CV423, 2007 U.S. Dist. LEXIS 53308, at #5 (D. Neb. July 20, 2007) (Exhibit 44) (disparate impact claim generally proved with statistical evidence). In the present case, however, Plaintiffs provide no statistical proof or any other sort of analytical method demonstrating Defendants enforced the housing code more aggressively against them as compared to other landlords who have non protected class tenants. In fact, the record reflects quite the opposite. Brisson explicitly admits that the identity of his tenant had nothing to do with the City’s code enforcement action against his property. (Eshibit 23, pp. 132, 137, 169, 170, 268, 269). Meysembourg has not indicated that 970 Euclid, the property in which he alleges illegal code enforcement, had protected class tenants (Exhibit 20, #3 (c), (d), and (e)). Steinhauser alleges illegal code enforcement at a property in which he did not recall the race of the tenant, and also at a property with a white tenant. (Exhibit 19, pp. 206-208, 502). Furthermore, Plaintiffs admit that they have protected class tenants in other properties but such properties are not targeted for aggressive code enforcement. (Exhibit Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 26 of 55 27 22, pp. 62-84, 110, 111.) (Exhibit 19, pp. 112, 113, 157) They also admit that other landlords, including the PHA, rent to protected class tenants but such properties are not similarly targeted. (Exhibit 22, p. 110, Exhibit 19, pp. 112, 113, 152, 525, 526). Plaintiffs further concede that many of their housing code violations were in fact valid due to the condition of their properties. (Exhibit 23, pp. 74-75, 120-122, Exchibit 22, pp.123-129, Exhibit 19, pp. 206-208, 334-336) Consequently, had Plaintiffs attempted to support their claims with statistical or analytical evidence, they would have discovered that there was no illegal targeting. The record simply falls short of supporting Plaintiffs’ contention that Defendants maintained a policy which had a significant adverse impact on a protected class and, therefore, Plaintiffs’ disparate impact claim should be dismissed. If the Court finds that Plaintiffs demonstrate a prima facie claim, however, the Court next determines whether Defendants satisfy their burden to prove that any disparate impact was justifiable as necessary to achieve legitimate policy objectives. See DarstWebbe v. St. Louis Housing Authority, 417 F.3d 898, 901 (8th Cir. 2005), citing Oti Kaga, Inc., 342 F.3d at 883 (applying a burden shifting analysis to a FHA disparate impact claim and finding a public housing fund allocation decision “justifiable on the ground it is necessary to [the defendant’s] exercise of its funding responsibilities”). NHPI has identified numerous legitimate policy objectives to support its code enforcement plan. (See Statement of Facts above.) The Defendants’ general and specific objectives are legitimate and facially neutral. Id. As such, the Court should conclude that Defendants Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 27 of 55 28 satisfy their burden of proving any disparate impact was justified as necessary to achieve legitimate policy objectives. Upon finding Defendants have met their burden, the Court then addresses whether Plaintiffs offer an alternative policy that could meet the many and varied goals set out for the Defendant City of St. Paul’s NHPI. See Darst-Webbe, 417 F.3d at 902. (noting that a plaintiff “may nonetheless prevail by showing another policy would accomplish [the proffered policy] objectives without the discriminatory effects”). The Plaintiffs do not establish any alternative that satisfies the NHPI’s legitimate policy objectives while reducing the plan’s alleged discriminatory impact. Based on the foregoing, Plaintiffs do not allege a prima facie case for disparate impact. Plaintiffs cannot convert their disappointment of the Defendants’ code enforcement into a disparate impact claim without providing any evidence of disparate impact. By Plaintiffs’ own admissions, they cannot meet this burden and their disparate impact claim should be dismissed. B. Disparate Treatment If Plaintiffs are alleging a disparate treatment claim, such claim should be dismissed. To prevail under a prima facie case of discrimination, a plaintiff must prove that the state acted with the intent of discriminating against a protected class. Familystyle of St. Paul, Inc. v. City of St. Paul, 728 F.Supp. 1396, 1402, note 9 (D. Minn. 1990) aff’d, 923 F.3d 91 (8th Cir. 1991). This Court has recognized such intent when a policy is Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 28 of 55 4 In fact, the only evidence of racial discrimination was of behalf of Steinhauser verbally threatening his tenant and calling her a black bitch. (Exhibit 40, p.1771). 29 enacted for the purpose of discrimination. United States v. City of Black Jack, 508 F.2d 1179, 1185 (8th Cir. 1974) (racial criticism of [low to moderate income integrated townhouse development] was made and cheered at public meetings. [A]t all levels of opposition, race played a significant role, both in the drive to incorporate and the decision to rezone). Plaintiffs, however, present no evidence of racial discrimination as there is no indication race, or some other protected class, played a role in Defendants’ housing code enforcement.4 Without evidence of intent, Plaintiffs fail to provide proof that Defendants

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enacted and enforced the housing code with purposeful discrimination. Accordingly, any disparate treatment claim made by the Plaintiffs should be dismissed. III. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIMS UNDER 42 U.S.C. § 1981 At Count IV of Plaintiffs’ Complaint, Plaintiffs claim Defendants intentionally denied Plaintiffs’ “the same right to make and enforce contracts, and to have the full and equal benefit of all laws or proceedings for the security of persons and property as is enjoyed by white citizens.” Complaint, ¶251. Specifically, Plaintiffs allege that Defendants violated 42 U.S.C. § 1981 by interfering with Plaintiffs’ contracts, right to make and enforce contracts, and contractual relationships with their non-white tenants. (Complaint, ¶252). Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 29 of 55 30 42 U.S.C. § 1981 protects the rights of all individuals to make and enforce contracts without respect to race. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474, 126 S.Ct.1246, 1075 (2006). This section was enacted “to protect identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.” Occhino v. Lannon, 150 F.R.D. 613, 620 (D. Minn. 1993), quoting Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 2028, 95 L.Ed.2d 582 (1987), reh'g. denied, 483 U.S. 1011, 107 S.Ct. 3244, 97 L.Ed.2d 749 (1987). It is directed at racially motivated misuse of government power and protects against racial discrimination in a limited range of civil rights. Bell v. City of Milwaukee, 746 F.2d 1205, 1270 (7th Cir. 1984) (overruled on other grounds, Russ v. Watts, 414 F. 3d 783 (7th Cir. 2005)). Plaintiffs alleging violations of 42 U.S.C. § 1981 must show, by a preponderance of the evidence, that a defendant intentionally and purposely discriminated against the plaintiffs because of race. General Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 391-92 (1982); Youngblood v. Hy-Vee Food Stores, Inc, 266 F.3d 851, 855 (8th Cir. 2001). Once a prima facie case of discrimination in violation of § 1981 is established, the burden shifts to the defendant to respond with proof of legitimate, nondiscriminatory reasons for its actions. If the defendant satisfies this requirement, the burden shifts back to the Plaintiff to prove that the proffered reason is merely a pretext for discrimination. See Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 30 of 55 31 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Sandy Hill Apts. v. Kudawoo, No. 05-2327, 2006 U.S. Dist. LEXIS 75229 (D. Minn. Oct. 16, 2006) (Exhibit 46). Summary judgment is appropriate here because Plaintiffs cannot make a prima facie showing of racial discrimination under § 1981. The record in this case does not establish that Defendants misused government power to interfere with or deny Plaintiffs’ right to make and enforce contracts with non-white tenants, or that Defendants misused their authority to interfere with Plaintiffs’ contractual relationships with non-white tenants. Defendants did not prevent Plaintiffs from renting or leasing their properties to any tenants on the basis of race; nor did they interfere with any business or contractual relationship between non-white tenants and the Plaintiffs. Analogous to claims under the Fourteenth Amendment, in order to prevail on a claim under § 1981, a plaintiff must present evidence of defendant’s discriminatory intent. Mere conclusory allegations of discrimination are insufficient, Davis v. Frapolly, 717 F.Supp. 614, 616 (N.D.Ill.1989), and, will not sustain plaintiff’s burden of demonstrating genuine issues of material fact sufficient to preclude entry of judgment in civil rights actions under §1981. Taliaferro v. Voth, 774 F. Supp. 1326 (D. Kan. 1991). Plaintiffs, in this case, have failed to produce evidence of discriminatory intent under § 1981 by any of the named Defendants. Because of Plaintiffs’ failure to produce evidence of discriminatory intent, Plaintiffs’ § 1981 claims against these Defendants should be dismissed as a matter of law. Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 31 of 55 32 Plaintiffs also allege the City violated their rights under § 1981. However, § 1981 does not impose vicarious liability on municipalities for civil rights violations committed by the municipality’s employees. A municipality will not be held liable for its employees’ acts through a respondeat superior standard. Dunham v. Special Sch. Dist. No. 1, 484 N.W.2d 63 (Minn. Ct. App. 1992), rev’d 498 N.W.2d 441 (Minn. 1993), citing Jett v. Dallas Indep. Sch. Dist., 491, U.S. 701, 735, 109 S.Ct. 2702, 2721, 105 L.Ed.2d 598 (1989). Consequently, Plaintiffs’ § 1981 claim against the City should be dismissed. IV. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIMS UNDER 42 U.S.C. § 1983 Count VI of Plaintiffs’ Complaint asserts civil rights violations under 42 U.S.C. § 1983. Specifically, Plaintiffs allege Defendants and other employees of the City “did wrongfully deprive Plaintiffs and their tenants of . . . the right to be free from unreasonable searches and seizures, the right to be free from taking of their property without compensation, the right to due process of law, the right to equal protection of the laws, and the right to pursue an occupation, business or profession free from governmental deprivation or undue interference, or government imposed monopoly, guaranteed by the Fourth, Fifth, Ninth, and Fourteenth Amendments.” (Complaint, ¶264). 42 U.S.C. § 1983 imposes liability for damages upon any person acting under color of state law who deprives another of the rights, privileges, or immunities secured by the Constitution. It is well established that 42 U.S.C. § 1983 does not provide an independent basis for liability. Rather, it is a remedial statute affording remedies for violations of Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 32 of 55 5 Brisson is the only plaintiff who actually lived at the property where he claims illegal code enforcement. However, Brisson does not claim any Fourth Amendment violation by defendants. 33 constitutional rights or federal laws. See Baker v. McCollan, 443 U.S. 137, 144 n.3

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(1979). In order to recover under § 1983, Plaintiffs must (1) establish that Defendants violated a right secured by the United States Constitution; (2) demonstrate that Defendants acted under color of state law in violating those rights; and (3) establish that Defendants’ acts damaged Plaintiffs. Rinker v. Sipler, 264 F. Supp.2d 181, 186 (M. D.Pa. 2003). A. Fourth Amendment: Unreasonable Search & Seizure The Fourth Amendment guarantees individuals the right to be secure in their houses and free from unreasonable searches and seizures. Plaintiffs claim Defendants violated their Fourth Amendment rights to be free from unreasonable searches and seizures when the City’s code enforcement officers (specifically Defendants Magner, Koehnen and Martin) entered Plaintiffs’ properties without their consent. Defendants are entitled to judgment on Plaintiffs’ Fourth Amendment claims because Plaintiffs lack standing to assert Fourth Amendment claims with respect to properties they owned but did not live in, Defendants obtained consent to enter the properties at issue, and Plaintiffs failed to allege any unconstitutional conduct as to several Defendants.5 1. Plaintiffs Lack Standing Fourth Amendment rights are personal rights which may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425 (1978). Fourth Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 33 of 55 34 Amendment rights are not limited or defined by the law of property. United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 993 (1974). Property ownership alone is insufficient to confer standing to contest a search under the Fourth Amendment. See DiBlasi v. Borough of E. Rutherford, No. 05-1890, 2006 U.S. Dist. LEXIS 54236 (D.N.J. Aug. 4, 2006) (Exhibit 47). Instead, a plaintiff asserting a Fourth Amendment violation must show that he/she had a reasonable expectation of privacy in the premises searched. In this case, Plaintiffs fail to show that they had a reasonable expectation of privacy in any of the properties inspected. Plaintiffs did not reside in the properties and have provided no evidence, besides their ownership of the properties, that they maintained a legitimate expectation of privacy in any of the properties at issue. See Godshalk v. Borough of Bangor, No. 03-1465, 2004 U.S. Dist. LEXIS 7962 (E.D. Pa. May 5, 2004) (Exhibit 48) (holding that plaintiffs lacked standing to challenge borough officer’s inspection of plaintiffs’ property for building code violations because plaintiffs were mere legal owners of the property and did not reside at the property); Rozman v. City of Columbia Heights, 268 F.3d 588, 591 (8th Cir. 2001) (landlord lacked standing to assert tenant’s Fourth Amendment rights). 2. Defendants Obtained Consent Even if Plaintiffs had standing to challenge the inspections of their properties, Defendants did not violate their Fourth Amendment rights. A search is per se unreasonable under the Fourth Amendment if it is conducted without a warrant issued Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 34 of 55 35 upon probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041 (1973). However, searches conducted with the voluntary consent of persons possessing authority are exceptions to the warrant requirement. Id. In this case, the respective tenants of the properties gave consent for the City’s code enforcement officers to enter and inspect the properties. As residents, these individuals had the requisite authority to consent to an inspection of their living areas. See Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793 (1990) (an individual who has or reasonably appears to have common authority over premises, but has no property interest in the premises searched, has sufficient authority to consent to a search of the premises). 3. No Unconstitutional Conduct or Policies Plaintiffs’ Fourth Amendment claims center on allegations that Defendants Martin, Koehnen and Magner entered Plaintiffs’ property without consent. Plaintiffs have not alleged or presented evidence that any of the other named defendants engaged in such conduct or that the City maintained an unconstitutional policy, custom or practice authorizing such conduct. See Sanders v. United States, 760 F.2d 869 (8th Cir. 1985) (limiting liability to instances of personal administrative involvement, personal knowledge, or breach of a legal duty that proximately causes the injury). Absent evidence of individual action, unlawful conduct by the other individually named Defendants or an unconstitutional policy, custom or practice by the City, Plaintiffs’ Fourth Amendment claims against Defendants Kelly, Dawkins and the City fail as a matter of law. Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 35 of 55 6 As a threshold matter, it should be noted that Plaintiffs have had the opportunity to litigate violations of the various building codes as referenced in their Complaints. Plaintiffs have pleaded guilty to a number of violations which constitute an admission of fault which may not be relitigated here. To the extent that they have failed to pursue their state court remedies by appeal, Plaintiffs have similarly waived their right to contest those violations in a later proceeding. 36 B. Equal Protection and the Fourteenth Amendment Plaintiffs claim Defendants, did wrongfully deprive Plaintiffs and their tenants of rights secured by the Constitution and laws of the United States, including the right to equal protection of the laws. Specifically, Plaintiffs asserts civil rights violations under 42 U.S.C. § 1983 and the Fourteenth Amendment by following an unconstitutional city policy, custom and practice of discriminatory code enforcement.6 The Equal Protection Clause of the Fourteenth Amendment commands that no state shall “deny to any person within its jurisdiction the equal protection of the laws”. U.S. Const. Amend. XIV, 1. Generally, this provision proscribes government action that treats one group of individuals less favorably than others similarly situated. City of Cleburne, Tex. V. Cleburne Living Center, 105 S.Ct. 3249, 3254 (1985). The Fourteenth Amendment does not require perfectly equal treatment for every individual. See Kahn v. Shervin, 416 U.S. 351, 355-56 (1974). In order to establish an Equal Protection violation, a plaintiff must prove that he was treated differently from other similarly-situated people.

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See Bogren v. Minnesota, 236 F. 3d 399, 408 (8th Cir. 2000). A plaintiff must also produce evidence of a racially discriminatory intent or purpose. Village of Arlington Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 36 of 55 37 Heights v. Metropolitan Housing Dev. Corp., 97 S.Ct. 555, 563 (1977) (overruled on other grounds at Chapman v. Nicholson, 579 F. Supp. 1504 (N.D. Ala. 1984)). The discriminatory purpose must be the motivating factor in an Equal Protection Claim. Regarding Plaintiffs’ alleged cause of action for violation for equal protection of the law under the Fourteenth Amendment, the Federal Civil Rights Statute as interpreted provides that municipalities cannot be held liable solely because of the discriminatory actions of one of its employees. Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 128 (2nd Cir. 2004). Defendants can only be held liable if Plaintiffs prove that Defendants’ policy or custom inflicted the claimed injury pursuant to Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978). To prevail on a selective enforcement equal protection claim pursuant to § 1983, Plaintiffs must show that: 1) the person compared with others similarly situated was selectively treated and 2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person. Zahra v. Town of Southhold, 48 F.3d 674, 683 (1995). Plaintiffs have alleged that as landlords they have been subjected to Defendants’ discriminatory code enforcement policy. Fatally lacking from Plaintiffs’ equal protection claim is any evidence from which a reasonable person could conclude that the Defendants were motivated by discrimination and acted pursuant to some widespread policy or custom. Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 37 of 55 38 In Berry v. City of Little Rock, 904 F. Supp. 940 (U.S.D.C Ark. 1995), plaintiffs, landlords and tenants brought an action against a municipality alleging that the City’s ordinance that provided for inspection of residential rental housing units violated the Equal Protection Clause. The Court dismissed plaintiffs tenants’ claims for lack of standing and dismissed plaintiff landlords’ claims on the merits. The Court found that the City’s use of its ordinance to “target rental properties for the enforcement of minimal standards of maintenance and repair of dwellings” is not cause for complaint, and plaintiffs landlords’ claims that they have been denied equal protection should be dismissed. Berry, 904 F. Supp. At 949. It was not a violation of the Equal Protection Clause to effectively utilize the City’s limited enforcement resources by concentrating enforcement activities where they are needed most. Id. In the present case, Plaintiffs are landlords claiming a violation of the Equal Protection Clause based on the allegation that they were targeted because of the protected class status of their tenants. In an effort to support this claim, Plaintiffs allege facts that actually support Defendants. Plaintiffs admit that all of their properties were not targeted although all their properties had the same class of tenants. Plaintiffs admit that many of the correction orders were valid and Plaintiffs had to correct the deficiency in their rental properties. Brisson actually admits that the identity of his tenant (an allegedly disabled white individual) had absolutely nothing to do with the City’s code enforcement and condemnation. In support of his claim, Meysembourg identifies a neighbor who rents to Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 38 of 55 39 protected class tenants who was not subject to City code enforcement that he should have been subjected to. Meysembourg also admittedly cannot recall the race of the tenants at 970 Euclid, the only property in which he alleges illegal code enforcement based on the race of his tenants. Likewise, Steinhauser claims 118 Litchfield was illegally targeted because of the race of his tenants but he does not recall who the tenant was. (Exhibit 19, pp. 206-208). He later claims illegal code enforcement based on enforcement at 118 Litchfield of a unit occupied by a white tenant. (Exhibit 19, p. 502 Exh. 20, p. 6). He also claims that the PHA, who has the same tenant base, was not subject to illegal code enforcement. Like the City in Berry, the City of St. Paul legitimately used its resources on code enforcement where it was needed most. There is absolutely no evidence that the code enforcement was based on the protected class status of the tenants. In fact, all evidence (and even the evidence provided by Plaintiffs) confirms that code enforcement did not consider (or necessarily even know) the protected class status of Plaintiffs’ tenants when applying the City’s code. Plaintiffs’ Equal Protection Claims should therefore be dismissed as a matter of law. C. Substantive Due Process Plaintiffs claim Defendants have deprived them of their due process rights under the Fifth Amendment of the Constitution, specifically asserting the right to be free of deprivation of property without due process of law. As a preliminary matter, the Fifth Amendment is only applicable to violations of due process committed by federal officials. Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 39 of 55 40 Dusenbery v. United States, 534 U.S. 161 (2002). The Dusenbery court noted that the due process clause of the Fifth Amendment prohibits the United States from depriving any person of property without due process of law whereas the due process clause of the Fourteenth Amendment prohibits the states from depriving persons of property without due process of law. Based on this, Plaintiffs’ Fifth Amendment due process claim is defective and must be dismissed. Assuming Plaintiffs have preserved a claim for substantive due process under the Fourteenth Amendment, Plaintiff must demonstrate that Defendants engaged in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty. Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998). Because the doctrine of substantive due process does not protect individuals from all governmental actions that infringe upon liberty or injure property, to establish a claim a plaintiff must demonstrate an abuse of governmental power that shocks the conscience or action that is legally irrational

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in that it is not sufficiently keyed to any legitimate state interest. PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 31-32 (1st Cir. 1991). Where discretionary administrative action is involved, the class of cases which meets this constitutional threshold is narrowly limited. See Baker v. Coxe, 230 F.3d 470 474 (1st Cir. 2000). Even the outright violation of state law by local officials in denying a permit or license does not automatically raise a federal claim. Roy v. City of Augusta, 712 F.2d 1517, 1523 (1st Cir. 1983). It is apparent Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 40 of 55 41 from the record that Plaintiffs cannot demonstrate conduct on the part of Defendants which “shocks the conscience”. The Second Circuit Court of Appeals in Zahra v. Town of Southold, 48 F.3d 674 (2nd Cir. 1995), noted the general rule in regard to substantive due process claims, federal courts should not become zoning boards of appeal to review local legislative and administrative agencies, citing Sullivan v. Town of Salem, 805 F.2d 81, 82 (2nd Cir. 1986). Here, Plaintiffs are in effect asking the federal court to act as a local government board reviewing whether Defendant’s state court-related actions were appropriate. Plaintiff’s Fifth Amendment due process claim should be dismissed for the reasons stated above. D. Taking Property Without Just Compensation Plaintiffs assert that Defendants have taken their property without just compensation in violation of the Fifth Amendment of the Constitution. Plaintiff’s claim is based upon allegations that they suffered expenses because of Defendant’s code enforcement. Plaintiffs are not alleging they have lost permanent use of their properties. Further, while Plaintiffs allege they have been required to engage in “forced sales” of their property, they have not alleged that the properties were taken over by Defendants. In Minnesota Industrial Ventures LLC v. City of Roseville, No. 05-2488, 2006 U.S. Dist. LEXIS 13421 (D. Minn. Mar. 24, 2006) (Exhibit 49), plaintiff property owner brought suit against the municipality alleging that it had taken real property in violation of the Federal Constitution. The Court noted that under the Fifth Amendment of the United Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 41 of 55 42 States Constitution, private property shall not be taken for public use without just compensation. The City of Roseville argued that plaintiff had not exhausted state compensation procedures as required by the case of Williamson v. County Regional Planning Commission, 473 U.S. 172 (1985). In Williamson, the Supreme Court held that if a state provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the just compensation clause until it has used the procedure and been denied just compensation. The Court found that the federal court claims were not ripe for adjudication and dismissed plaintiff’s lawsuit. A similar result is mandated in the present case where Plaintiffs have had the opportunity to seek state court remedies and have failed to do so. The Minnesota Court of Appeals in Arcadia Development Corp. v. City of Bloomington, 552 N.W.2d 281 (Minn. App. 1996) reviewed the situation where plaintiffslandowners of a mobile home park challenged the constitutionality of a city ordinance requiring landowners to pay relocation costs to mobile home park residents upon closure of the park. Plaintiffs asserted there was a regulatory taking without just compensation. The court noted that statutes and local ordinances are presumed valid and will not be declared unconstitutional unless clearly shown to be so, citing City of St. Paul v. Kekedakis, 199 N.W.2d 151 (1972). Because there has been no taking of property without compensation and the ordinances are presumed valid, Plaintiffs’ claims lack merit and should be dismissed. Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 42 of 55 43 E. Ninth Amendment Plaintiffs allege Defendants violated the Ninth Amendment, which provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. Amend. IX. Plaintiffs Ninth Amendment claim against Defendants lacks merit and should be dismissed. The Ninth Amendment has not been recognized as independently securing any constitutional right, for purposes of pursuing a civil rights claim. Strandberg v. City of Helena, 791 F.2d 744, 748-49 (9th Cir. 1986); Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1029 (9th Cir. 2002) (Ninth Amendment claim properly dismissed because plaintiff may not “double up constitutional claims”) aff’d sub nom; Groh Ramirez, 540 U.S. 551, 124 S. Ct. 1284 (2004). “This amendment has never been used as a solid basis for any decision from the Supreme Court.” National Assoc. of Property Owners v. United States, 499 F.Supp. 1223(D. Minn. 1980). Instead, a civil rights claim must be based on a specific constitutional guarantee. Strandberg, 791 F.2d at 749. Because courts have rejected the Ninth Amendment as independently securing constitutional rights, Plaintiffs’ Ninth Amendment claim fails as a matter of law. F. Qualified Immunity Bars Plaintiffs’ §1983 Claims Against the Individually Named Defendants Even if the individually named Defendants’ conduct violated Plaintiffs’ rights under the Fourth, Fifth, Ninth, or Fourteenth Amendments, the doctrine of qualified immunity would bar Plaintiffs’ claims. Saucier v. Katz, 533 U.S. 194, 201-02 (2001). Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 43 of 55 44 Under the doctrine of qualified immunity, government officials performing discretionary tasks are shielded from liability for civil damages unless their conduct violates clearly established constitutional rights of which a reasonable person would have known. In other words, the right allegedly violated must have been “clearly established” such that the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right. Id. at 202 (internal quotes omitted). If the law did not put the official on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. Id.; See also Malley v. Briggs, 475 U.S. 335,

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341 (1986). A right is not clearly established unless the official has “fair warning” that his conduct would violate a constitutional right. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002). An official has fair warning if a general constitutional rule applies “with obvious clarity to the specific conduct in question.” Id. at 740-41. Each Defendant in this case is a government official performing discretionary duties. They are entitled to qualified immunity because their conduct was objectively reasonable and did not violate any clearly established constitutional or statutory rights. “There was no clearly established constitutional right of a rental property owner to be free from a series of building inspections [or] citations.” Myrosek v. Kraatz, 178 F. Supp. 2d 104, 106 ( 2001). The record in this case contains no evidence to suggest that a reasonable official, acting in the Defendants’ capacity, would have believed that he or she was acting Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 44 of 55 45 unlawfully by enforcing the requirements of the housing code against the properties owned by Plaintiffs. Cf. Melek v. Kohler, No. 93-56131, 1995 U.S. App. LEXIS 25185, (9th Cir. Feb. 9, 1995) (Exhibit 50) (granting qualified immunity to housing code enforcement officers because reasonable official would have believed it lawful to cite plaintiff for housing code violations). G. Plaintiffs Have Failed to Establish a Viable § 1983 Claim Against the City of St. Paul Plaintiffs allege the City is liable for Plaintiffs’ damages under 42 U.S.C. § 1983 because the individually named Defendants and other employees of the City deprived Plaintiffs of their rights while “following an unconstitutional City policy, custom and practice of discriminatory code enforcement.” (Complaint, § 265). A city cannot be held vicariously liable under 42 U.S.C. § 1983 on a theory of respondeat superior. Monell v. Dept. of Social Servs., 436 U.S. 658, 694 (1978). A city may be held liable for the unconstitutional acts of its officials or employees when those acts implement or execute an unconstitutional policy or custom of the city. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). Only where the constitutional injury is caused by the execution of city policy or custom will section 1983 liability lie. City of Canton v. Harris, 489 U.S. 378, 385 (1989). A “policy” is an official policy, a deliberate choice of a guiding principle or procedure made by the city official who has final authority regarding such matters. See Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 45 of 55 46 Ware v. Jackson County, 150 F.3d 873, 880 (8th Cir.1998). To establish liability based upon city custom, the plaintiff must show: (1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the city’s employees; (2) Deliberate indifference to or tacit authorization of such conduct by the city’s policymaking officials after notice to the officials of that misconduct; and, (3) The plaintiff’s injury by acts pursuant to the governmental entity's custom, i.e., proof that the custom was the moving force behind the constitutional violation. Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999). The City is entitled to summary judgment on Plaintiffs’ § 1983 claim because Plaintiffs have failed to produce evidence of any constitutionally deficient policy or custom, let alone evidence that such a policy or custom was the “moving force” behind the code enforcement actions at issue. Absent evidence of a policy or custom of unlawful code enforcement action, indifference to citizen complaints, failure to discipline code enforcement officers for unconstitutional conduct, Plaintiffs’ claim cannot prevail. V. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ CONSPIRACY CLAIMS UNDER 42 U.S.C. § 1985 At Count VII of Plaintiffs’ Complaint, Plaintiffs allege the individually named Defendants and other employees for the City conspired together and with other unknown parties “to deny Plaintiffs and their tenants their federal civil rights.” (Complaint, ¶ 274). 42 U.S.C. § 1985 does not confer rights or provide an independent basis for liability. Like §1983, it is a remedial statute which affords remedies for violations of Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 46 of 55 47 constitutional rights conferred elsewhere. See Chambers v. Omaha Girls Club, 629 F. Supp. 925, 933 (D. Neb. 1986), aff’d 834 F.2d 697 (8th Cir. 1986). In order to establish that Defendants violated Plaintiffs’ rights under 42 U.S.C. § 1985, Plaintiffs must prove: (1) the existence of a conspiracy; (2) that the purpose of the conspiracy was to deprive the Plaintiffs of their civil rights; (3) that a conspirator did an act in furtherance of the object of the conspiracy; and (4) damages, shown by demonstrating either injury to person or property or the deprivation of a civil right. See Andrews v. Fowler, 98 F3d 1069, 1079 (8th Cir. 1996), citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790 (1971). A conspiracy is not established from the mere fact that it is alleged. Speculation and conjecture are not enough to prove a conspiracy exists. See Hinkle v. City of Clarksburg, 81 F.3d 416, 421-22 (4th Cir. 1996) Allegations of a conspiracy must be pleaded with sufficient specificity and factual support to establish a meeting of the minds. Snelling v. Westhoff, 972 F.2d 199, 200 (8th Cir. 1992), cert denied, 510 U.S. 831 (1993) Allegations of a conspiracy, absent supporting facts, do not establish a claim upon which relief may be granted. Holbird v. Armstrong-Wright, 949 F.2d 1019, 1020 (8th Cir.1991). Here, the Plaintiffs’ allegations of a conspiracy are bald and conclusory. There are no facts in the record identifying the existence of an intent to violate Plaintiffs’ civil rights. Plaintiffs do not even allege that Defendants engaged in any conduct that would establish there was a meeting of the minds or conduct in furtherance of any alleged conspiracy. Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 47 of 55

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48 Plaintiffs have not shown damages by demonstrating either an injury to themselves, their property, or the deprivation of a civil right due to the alleged conspiracy. Plaintiffs’ §1985 claim against Defendants and the City should be dismissed. IV. PLAINTIFFS’ STATE LAW CLAIMS FAIL AS A MATTER OF LAW A. Count VIII - Abuse of Process Plaintiffs claim an abuse of process in Defendants’ alleged coordinated effort to rid the City of “bottom of the barrel” and “low income” individuals and target Plaintiffs’ properties for illegal code enforcement. To prove an abuse of process action, the plaintiff must show that there was an ulterior purpose and that the defendant used the process to achieve something not within the scope of the proceedings. Nutter v. Messerli & Kramer, P.A., 500 F. Supp. 2d 1219, 1224 (D. Minn. 2007), citing Kellar v. VonHoltum, 568 N.W.2d 186, 192 (Minn. Ct. App. 1997). The plaintiff must also demonstrate that the abuse of process resulted in injury to person or property, whereas a showing of direct injury to business or good name is not sufficient. Kittler & Hedelson v. Sheehan Props Inc., 295 Minn. 232, 239, 203 N.W. 2d 835 (1973). Plaintiffs fail to satisfy the elements of their abuse of process claim and accordingly, such allegation should be dismissed. Plaintiffs have not identified an ulterior motive behind the City’s code enforcement process. They allege the City coordinated an “illegal scheme” of targeting their properties and created false entries in City code enforcement documentation. However, the record fails to reflect the City had an “illegal scheme” in place as Plaintiffs readily admit in many Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 48 of 55 49 instances Defendants legally enforced the code. (Exhibit 23, pp. 132, 137, 268-269; Exhibit 19, pp. 206-208, 210-211, 360-362). In contrast, the record reflects that Defendant City created the code enforcement policy for a legal purpose. (See Statement of the Facts above.) Plaintiffs have not established an ulterior motive and without such, there are no grounds supporting Plaintiffs’ abuse of process allegation. Accordingly, Plaintiffs’ claim should be dismissed. Further, there is no evidence supporting Plaintiffs’ contention that Defendants used the process to achieve something outside the scope of the proceedings. See Nutter, 500 F.Supp.2d at 1224. Plaintiffs cannot prove Defendants used enforcement of the city housing code to accomplish an unlawful end. See Kittler & Hedelson, 295 Minn. at 239 (the test for abuse of process is whether the process was used to accomplish an unlawful end for which the process was not intended, or to compel a party to do a collateral act which he or she is not legally obligated to do). Plaintiffs allege Defendants created false entries in City code enforcement documentation and used such in court filings against them. However, there is no evidence in the record supporting these allegations and, without more, Plaintiffs have no proof Defendants used code enforcement to achieve something outside of its original and legal purpose. In short, there is no evidence Defendants illegally misapplied the code and, therefore, Plaintiffs’ abuse of process claim should be dismissed. Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 49 of 55 50 B. Count IX - Tortious Interference with Contract Plaintiffs claim Defendants tortiously interfered with the contracts between them and their respective tenants for lease of private housing in the City. To establish a claim for tortious interference with a contract, a plaintiff must prove the following elements: (1) existence of a contract; (2) alleged wrongdoer’s knowledge of the contract; (3) his or her intentional causation of its breach; (4) without justification; and (5) damages resulting therefrom. Storage Technology Corp. v. Cisco Systems, Inc., 395 F.3d 921, 924 (8th Cir. 2005), citing Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 900 (Minn. 1982). A successful claim requires proof of all five elements. Dyrdal v. Golden Nuggets, Inc., 672 N.W.2d 578, 580 (Minn. App. 2003). Plaintiffs have not alleged any material facts, or elicited evidence, to support a tortious interference of contract claim against any of the Defendants. Plaintiffs have not identified any evidence that Defendants intentionally procured breach of the contracts and, in fact, Plaintiffs admit that many leases were breached because of tenant issues, not anything to do with Defendants enforcing the housing code. (Exhibit 23, pp. 112, 126, 127, 197, 199; Exhibit 22, pp. 175-177; Exhibit 19, pp. 207, 302, 416-419). It is Plaintiffs’ poor housing stock and neglect of their properties which caused any breach of an alleged lease. Even if Plaintiffs’ tenants breached a lease because of code enforcement, Plaintiffs, as landlords, are the individuals responsible to keep their properties up to code and consequently, are the cause of tenants breaking leases. In short, Defendants are Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 50 of 55 51 entitled to summary judgment because Plaintiffs have not raised a genuine issue of material fact with respect to any of the tortious interference with a contract elements. C. Count X - Tortious Interference with Plaintiffs’ Business Expectancy Plaintiffs allege Defendants tortiously interfered with the business expectancy they had in their rental business in the City. To prevail on a claim for tortious interference with business expectancy, a plaintiff must show: (1) the existence of a reasonable expectation of economic advantage or benefit belonging to the plaintiff; (2) that the defendant had knowledge of that expectation of economic advantage; (3) that the defendant wrongfully and without justification interfered with the plaintiff’s reasonable expectation of economic advantage or benefit; (4) that in the absence of the wrongful act of the defendant, it is reasonably probable that the plaintiff would have realized his or her economic advantage or benefit; and (5) that the plaintiff sustained damages as a result of this activity. Lamminen v. City of Cloquet, 987 F. Supp. 723, 731 (D. Minn. 1997), citing United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 632-633 (Minn. 1982). Plaintiffs have not alleged any material facts to support the elements of a tortious interference with a business expectancy claim against any of the Defendants. Brisson cannot prove the existence of a reasonable expectation of economic advantage because he

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purchased the property knowing it needed substantial renovation and consistently failed to cure such violations because of lack of money. (Exhibit 23, pp. 99, 251). His property was eventually condemned due to his inability to meet deadlines in the correction and Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 51 of 55 52 abatement orders on account of his financial situation, a problem apart from Defendants’ conduct. (Exhibit 23, pp. 127, 254, 268-269). Further, there is no evidence indicating Defendants interfered with any alleged business expectations and, in contrast, Plaintiffs readily admit that at times code enforcement was good for their business. (Exhibit 23, pp. 126, 127, 197, 220-222; Exhibit 22, pp. 190, 191). Finally, any economic loss suffered by Plaintiffs is either non-existent or Plaintiffs have brought such loss upon themselves because of their failure to remedy valid code violations. (Exhibit 23, p. 126, 127, 254). Steinhauser cannot prove he sustained damage as a result of Defendants’ alleged interference because he explicitly admits that he realized substantial profits from the sale of his properties. (Exhibit 20, p. 15). In sum, Plaintiffs allege a skeletal claim of tortious interference with a business expectancy without establishing grounds for such claim. Without more, the Court should conclude that there are no genuine issues of material fact and dismiss Plaintiffs’ allegation. D. Statutory and Official Immunities Bar Plaintiffs’ State Law Claims Plaintiffs have not met the burden of proof to establish viable claims for abuse of process, tortious interference with contract, or tortious interference with business expectancy. Plaintiffs’ admissions contradict the notion that Defendants acted with intent to abuse their authority or intent to interfere with Plaintiffs’ contracts or business expectancy. Instead, Plaintiffs’ contentions seem to challenge the underlying City policies and procedures and the discretionary decisions used by Defendants to enforce the St. Paul Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 52 of 55 53 Housing Code. In this regard, Defendants are immune from liability pursuant to the statutory immunities provided by the Minnesota Municipal Tort Claims Act and common law official immunity. E. Statutory Immunities The City is immune from liability for “any claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.” Minn. Stat. §466.03, subd. 6 (2006). To the extent Plaintiff is challenging the City’s housing code policies and procedures for enforcement, i.e., planning level decisions regarding the timing and allocation of resources to enforcement actions, statutory immunity bars Plaintiffs’ claims. Planning level decisions are those involving questions of public policy, that is, the evaluation of factors such as the financial, political, economic, or social effects of a given plan or policy. Holmquist v. State, 425 N.W.2d 230 (Minn. 1988). The policies and procedures followed by Defendants are based upon planning level decisions which balanced economic, political, and social factors. (Exhibit 7). Minnesota courts have reasoned that statutory immunity exists to prevent the courts from conducting an after-the-fact review which would second guess planning and policy making activities that are legislative or executive in nature. Conlin v. City of St. Paul, 605 N.W.2d 396 (Minn. 2000); Angell v. Hennepin County Regional Rail Authority, 578 N.W.2d 343 (Minn. 1998); Christopherson v. City of Albert Lea, 623 N.W.2d 272 (Minn. Ct. App. 2001). Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 53 of 55 54 To the extent Plaintiffs’ state law claims challenge Defendants’ execution of the St. Paul Legislative Code or other laws, Defendants are immune from liability. The Minnesota Legislature created a limitation on municipal tort liability for acts committed in accordance with a statute, where the municipality has been sued for “any claim based upon an act or omission of an officer or employee, exercising due care, in the execution of a valid or invalid statute, charter, ordinance, resolution or rule.” Minn. Stat. 466.03, subd. 5 (2006). Where there is no conflicting evidence on the issue of due care in the execution of a statute, summary judgment is appropriate. Landview Landscaping, Inc., v. Minnehaha Creek Watershed Dist., 569 N.W.2d 237, 241 (Minn. Ct. App. 1997) (summary judgment proper where due care in watershed district's issuance of conditional license according to rule was not disputed factually). F. Official Immunity The doctrine of official immunity "provides that ‘a public official charged by law with duties which call for the exercise of judgement or discretion is not personally liable to an individual for damages unless he is guilty of a willful or a malicious wrong.’" Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988), quoting Susla v. State, 247 N.W.2d 907, 912 (Minn. 1976). The record is devoid of facts establishing that any of the Defendants intentionally engaged in conduct that he/she knew was prohibited. Official immunity bars Plaintiffs’ state law claims against the individual Defendants. Case 0:04-cv-02632-JNE-SRN Document 236 Filed 07/29/2008 Page 54 of 55 55 Vicarious official immunity must be extended to the City to preserve code enforcement officer’s discretion and protect it from liability for the acts of its individual employees. See Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992), see also Watson v. Metropolitan Transit Commission, 553 N.W.2d 406, 415 (Minn. 1996) (stating public policy underlying official immunity is to prevent threat of liability from inhibiting use of discretion). CONCLUSION Based on the arguments set forth above and all the files, records, evidence, and documents of record, the Defendants respectfully request that summary judgement be entered in its favor and that the plaintiffs claims be dismissed with prejudice. Dated: July 29, 2008 JOHN J. CHOI Saint Paul City Attorney

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s/ Louise Toscano Seeba Louise Toscano Seeba (#292047) Assistant City Attorney 750 City Hall and Courthouse 15 West Kellogg Boulevard St. Paul, MN 55102 (651) 266-8772 Attorneys for Defendants 1:11 AMMEMORANDUMN OF LAW-FILES

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