Occhino v. Lannon

150 F.R.D. 613, 1993 U.S. Dist. LEXIS 17247, 1993 WL 328776
CourtDistrict Court, D. Minnesota
DecidedMay 17, 1993
DocketCiv. No. 5-92-145
StatusPublished
Cited by4 cases

This text of 150 F.R.D. 613 (Occhino v. Lannon) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Occhino v. Lannon, 150 F.R.D. 613, 1993 U.S. Dist. LEXIS 17247, 1993 WL 328776 (mnd 1993).

Opinion

ORDER and REPORT AND RECOMMENDATION

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the following Motions:

1. A Motion by the Plaintiff to Amend his Complaint to allege a conspiracy.
2. A Motion by the Defendant Cheryl Tallberg (“Tallberg”) to Dismiss.
3. A Motion by the Defendant Dennis Lamkin (“Lamkin”) to Dismiss.
4. A Motion by the Defendant William Lannon (“Lannon”) and the Defendant Steven LaTour (“LaTour”) to Dismiss.
5. A Motion by the Defendants to Compel the Plaintiff to execute authorizations with which the Defendants may review his record of prior incarcerations and his past medical records.
6. A Motion by the Plaintiff to compel an independent psychological examination of Tallberg.

Hearings on the Motions were held on January 28, and on May 6, 1993, at which the Plaintiff appeared pro se; Tallberg appeared by Douglas E. Nepp and Steven W. Schneider, Esqs.; Lamkin appeared by Raymond L. Tahnk-Johnson, Esq.; and, Lannon and LaTour appeared by M. Alison Lutterman, Esq.

For reasons which follow, we deny the Plaintiffs Motion to Amend his Complaint, and we recommend that the Defendants’ Motions for Dismissal or for Summary Judgment be granted.1

[616]*616II. Factual and Procedural Background

By his Complaint, the Plaintiff alleges the jurisdictional bases of his action in the following terms:

This action is brought pursuant to 42 U.S.C. Sections 1981, 1983, 1985(3), 1988 and the First, Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, and the First, Second, Third, Sixth, Seventh, Eighth and Tenth Sections of Article I of the Constitution of the State of Minnesota, and under the provision of Minnesota Statutes which prohibit the aforesaid conduct.
The jurisdiction of this Court is predicated on 28 U.S.C. Sections 1343(3) and (4) and 1331 and the pendent jurisdiction of the United States Courts.

In support of these claims, the Plaintiff alleges that, on May 22, 1991, Tallberg overheard the Plaintiff making a telephone call to the Federal Communications Commission from a public pay phone which was located in the lobby of the Ordean Building, where Tail-berg’s place of employment, with the Program for Aid to Victims of Sexual Assault, was located in a second floor office.

As alleged by the Plaintiff:

Without cause or justification and with intent to deprive plaintiff of his federal and state constitutional rights and in violation of Minnesota state law, defendant Tallberg called the police department and complained to the department about plaintiffs use of said public telephone and intentionally misrepresented to the police the tone and content of the plaintiffs telephone call. Defendant Tallberg called the police on the direction of defendant Lamkin, who had instructed Tallberg to call the police if plaintiff used the public phone in the public area of the building, or even if he is in the building.

In response to Tallberg’s telephone call, Lannon and LaTour, who are officers with the City of Duluth Police Department, arrived at the Ordean Building. Again, in the Plaintiffs words:

Defendants Lannon and LaTour responded to the call and arrested plaintiff for disorderly conduct. The police officers then handcuffed and searched plaintiff. They then escorted plaintiff to the door of the building. Once outside the building, defendant Lannon again searched plaintiff. At that point, defendant LaTour stated, “Don’t you think we should search him once more just for practice?” Defendant LaTour then proceeded to do another full search of plaintiff. * * * As the officers were placing plaintiff in the back seat of the police car, plaintiff asked the officers if they were not going to read him his Miranda rights. Defendant Lannon replied that plaintiff did not need them and that he had been watching too much TV. He then said, “Occhino, you are a nut. You are not from this planet.” Plaintiff replied, ‘You are paranoid; you did not even know enough to read me my Miranda rights when I was arrested.” Officer Lannon responded, “We will see who the nut is. There are homosexuals in jail who are just looking for fresh blood like you.”

Thereafter, the Plaintiff was taken to the St. Louis County Jail, where he was charged with disorderly conduct in violation of Minnesota Statutes Section 609.72.2 The Plaintiff [617]*617was held in the custody of the County Jail for a period of 20 hours.

Prior to the time of his trial, the City Attorney dropped the statutory charge and recharged the Plaintiff with two misdemean- or counts of disorderly conduct under the Duluth City Ordinance, one count of resisting arrest, and one count of obstructing an officer. Following a trial before the Honorable Robert V. Campbell in the State District Court for the County of St. Louis, Minnesota, the Plaintiff was acquitted of the disorderly conduct and resisting arrest charges, but he was found guilty of obstructing a peace officer in violation of Section 34-4(a) of the Duluth City Code.3 A violation of Section 34-4(a) carries a fine, but no incarceration and, following the finding of guilt, the State District Court imposed a fine of $200.

Subsequently, the Plaintiff moved the Court for a Judgment of Acquittal, for a New Trial, or for sentencing credit on account of the time that he had spent in the St. Louis County Jail. The State Court denied the Motions for Acquittal and for a New Trial, but granted the sentence credit and stayed the imposition of the fine of $200. An appeal was taken by the Plaintiff to the Minnesota Court of Appeals, which affirmed his finding of Guilt. Thereafter, the Minnesota Supreme Court denied the Plaintiffs Petition for further review. See, City of Duluth v. Occhino, 1992 WL 122591 (Minn.App.1992), pet. for rev. denied (Minn. August 4, 1992) (unpublished opinion).

Based upon the foregoing allegations, the Plaintiff claims that the Defendants have denied him his First Amendment right to freedom of expression, his Fourth Amendment right to be free from unlawful seizure of his person, his Fifth and Fourteenth Amendment rights to due process of law, including the right to be free from unjustified and excessive force utilized by police and intentional harassment by the police, and false arrest, malicious prosecution and malicious abuse of process without probable cause.

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150 F.R.D. 613, 1993 U.S. Dist. LEXIS 17247, 1993 WL 328776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/occhino-v-lannon-mnd-1993.