Fair housing lawsuit Supplement to debate

I.
PLAINTIFFS’ CLAIMS UNDER THE FAIR HOUSING ACT SURVIVE
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SUMMARY JUDGMENT BECAUSE THE PLAINTIFFS HAVE STANDING AND HAVE PRODUCED RECORD EVIDENCE TO RAISE GENUINE ISSUES OF MATERIAL FACT AS TO BOTH DISPARATE IMPACT AND DISPARATE TREATMENT CLAIMS.
A.
Plaintiffs have standing to bring claims under the Fair Housing Act.
The City does not dispute that Plaintiffs have Article III standing to bring its FHA claims.2 Rather, the City attacks the Plaintiffs’ prudential standing. The test for prudential standing is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief. The Supreme Court has held a party need not be a member of a protected class to suffer harm from discrimination.” Oti Kaga, Inc. v. South Dakota Housing Development Authority, 342 F.3d 871, 881 (8th Cir. 2003) (internal quotations and citations omitted).
The 8th Circuit recognized “the need to construe prudential standing broadly to vindicate the rights of citizens trammeled by illegal discrimination.” Id. at 882. Oti Kaga, despite being a corporation and not a member of any protected class, was held to have prudential standing because the discrimination affected its economic interests and “permitting Oti Kaga to prosecute the discrimination claims will effectuate the purpose of the Fair Housing Act’s anti-discrimination provisions and recognize Congress’s intent under the Fair Housing Act to extend standing to the full limits of Art. III” Id. at 882.
B.
Plaintiffs have presented evidence of disparate impact due to Defendants’
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violation of the Fair Housing Act
Proof of a disparate impact claim requires a showing that a facially neutral policy has a significant adverse impact on members of a protected minority group. Oti Kaga, Inc., 342 F.3d at 883. Defendants argue that the Plaintiffs’ disparate impact claims fail because the policy at issue is not facially neutral. If that were the case, the policy would be facially discriminatory and no further analysis would be necessary. However, the analysis looks to the impact of the policy, which must be significantly adverse to members of a protected class. In the present case, the Defendants’ policy of targeting non-PHA low income housing with excessive code enforcement results in less choice in housing for the protected-class individuals seeking affordable housing because it drives private landlords who have affordable rental options out of the rental market.
Plaintiffs as a group had or have a higher percentage of people of color and disabled “protected class” in their properties. Plaintiffs were targeted – PHA was not. Plaintiffs have scattered site properties with over two times the number of Blacks occupying their privately owned units than Blacks occupying the PHA scattered site homes. Why? Maybe it is because the City cannot control the private market’s decision as to who should be allowed the freedom and privacy of a home in the inner city at affordable rates with the benefits of public transportation and community.
The City controls the number of Blacks and other minorities that can get into PHA scattered site homes by controlling the Board of Commissioners who are appointed by the Mayor and approved by the Council. The City went for further control in 2001 by making
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sure one of its senior police officials sat on the PHA board.
While Defendants using CDBG funds for code enforcement went after Plaintiffs for alleged behavior problems, the City and PHA were working together with federal funding to handle even worse behavior issues at and inside PHA properties. PHA’s problems were costing the taxpayer lots of money, yet Defendants failed to even mention “PHA” in the City’s 2002 Problem Property report where the City claimed the private market was costing the public so much money that the City was justified in cracking down on the private market.
The City had tools in place from 1995 forward for recouping its costs of police and code services but decided not to use those tools.
The City forcibly requires only the private market to bear the excessive costs of “code compliance inspections and certifications” with corresponding removal of State Building Code grandfathering protections, application of “current codes,” and resulting increase in costs to the private owners – removing those properties from the rental market for months in the short term during the “code compliance,” and forcing many owners into financial crisis, with abandonment, foreclosure, and reduction in low-income housing stock available for the 10,000 families waiting for housing.
DEFENDANTS UNDERSTOOD SIGNIFICANCE OF APPLYING CITY’S HEIGHTENED CODE TO OLDER PROPERTIES OCCUPIED DISPROPORTIONATELY BY PROTECTED CLASS
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Dawkins knew that over-zealous enforcement would lead to wholesale abandonment of properties or the inner-city.” Ex. 108 to 3rd Engel Aff., STP 0658.
Dawkins also had a full understanding of what a “code compliance” meant. Bill Cullen depo pp. 211-212, 195, 211-212. Cullen and Royce said, Dawkins knew that it involved renovation that was greater than just maintenance issues - knew it was typically a substantial renovation of an older home and would have a significant financial effect in an adverse way on home owners and rental property owners.
Despite knowledge of that the City’s higher code standard, Defendant City, Mayor Kelly, Director Dawkins and Defendant inspectors, vigorously applied that code in violation of their affirmative duty to further federal fair housing policies. This is reason alone for this Court to deny Defendants’ motion and send this case to the jury.
There are few properties in Saint Paul where a determined inspector could not find a violation of some City ordinance. City’s Chronic Problem Property Case Study, 2002, 4007.
In 2006, the City conducted a study of 2005 Truth-in-Sale of Housing inspection reports and determined that over 60% of the Reports selected showed homes that had serious violations of the City’s heightened codes.
In 2004 and 2006 through 2007, the City acquired additional housing inspection records of PHA’s rental housing stock that showed a similar high percentage of code deficiencies under City’s more stringent code standard.
Starting in 2002, under the direction of Defendants, the City applied its more stringent
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code standards to low-income rental properties in the inner city neighborhoods where a disproportionate percentage of residents were “protected class” and rent burdened under HUD definitions.
Defendants applied its more stringent code to low-income rental housing disproportionately occupied by “protected class” who also would be adversely affected by any policy of the City that displaced said “protected class” or in any other way adversely affected them, including by limited their rental choices, or through rent increases from landlords burdened with City regulatory fees such as rental registration fees, inspection fees, permit fees, excessive consumption fees, vacant building fees, forced renovation - “code compliance inspection and certification” fees, and other miscellaneous fees.
Defendants failed to provide resources they acknowledged were critical to survival of the privately owned low-income rental housing occupied disproportionately by “protected class.”
Defendants refused to work with the private rental owners and their “protected class” tenants to resolve complex social issues including domestic abuse and other behavior issues, and failed to provide financial resources and other information to meet the City’s more stringent code, including the burdensome “Code Compliance”.
Plaintiffs and other private owners of low-income rental housing occupied by a disproportionate percentage of “protected class” were adversely affected by Defendants’ application of the City’s more stringent code, including from increased City fees, renovation costs, loss of rental income from wrongfully condemnations of rental properties, and were as a
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result forced to sell or abandon their rental properties. Plaintiffs’ “protected class” tenants were disproportionately affected by Defendants’ application of the City’s code and were subject to displacement from housing and inability to located replacement housing.
RESULT WAS PREDICTABLE – ABANDONMENT OF OLDER
INNER CITY HOMES FROM CODE COMPLIANCES AND LARGE NUMBERS OF “PROTECTED CLASS” UNABLE TO FIND AFFORDABLE HOUSING
There is significant evidence of wholesale abandonment of inner city homes due to the increase in costs to own such homes to meet the City’s heightened standards. The City now has over 2,000 vacant homes compared to an average year of average 300-400. On March 31, 2003, there were 367 Vacant Buildings with Ward listed [Bates 0030167-176]; November 1, 2007 = 1466 . The City’s Mortgage Foreclosure Study in 2006 noted “foreclosed properties are or were disproportionately renter-occupied.”
The high number of vacant homes now unavailable for low-income housing, naturally results in fewer housing choices and more protected class on the waiting lists. Public Housing Director Jon Gutzmann stated that as of December 2006, there were over 6,000 households on the PHA waiting list with waits of three to five years for availability and if the Section 8 waiting list was open, there would be 10,000 households on the list. Gutzmann, 60-63.
Only one out of five people who are eligible are being provided with affordable housing. Id. Gutzmann looks at PHA’s waiting list and can see an affordable housing crisis in the City. Id.
DAWKINS’ KNEW THAT OVER-ZEALOUS ENFORCEMENT WOULD LEAD TO WHOLESALE ABANDONMENT OF PROPERTIES IN THE INNER CITY
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Dawkins, as Director of Code Enforcement, and former state representative from the inner city who focused on housing related legislation at the State Capitol from 1987 to 2002, acknowledged that “in most cities a balance has to be struck between aggressive enforcement to preserve livability and over-zealous enforcement potentially leading to wholesale abandonment of properties or the inner-city.” Ex. 108 to 3rd Engel Aff., STP 0658.
Dawkins studied the relationship between aggressive code enforcement and resulting abandonment of inner city properties: “Whether it was part of the Kitchen Cabinet discussions or the city council discussions, I don't remember. But I used the example of Baltimore where the aggressive enforcement had tipped the scale so that there was a start of abandonment of properties more than the city had hoped for in Baltimore. And I wanted to make sure everyone understood that using whatever levers or rules or policies the city has, that we need to make sure that we didn't hit a tipping point. … All I know is that I read a study that was in a journal about stepped up code enforcement in Baltimore and that it had tipped the scales so that there was more abandonment of properties than the city had thought or wanted to have happen.” Dawkins depo. pp. 159-60.
POLICY ADOPTED FOR “PROBLEM PROPERTIES”: “GET INSIDE” RENTAL PROPERITES AND CALL EVERYTHING AND CODE TO THE MAX TO FORCE EVICTION OF TENANT AND FORCE SALE BY OWNER
Dawkins states, “A problem property is best defined by simply saying: If you live next door to a problem property you know it! Constant calls to get rid of the junk, intolerable behavior by occupants and guests, etc. A problem property can be a rental property or an
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owner occupied property; it can be a commercial property or a residential property; it can be a single-family unit, a duplex or an apartment building.”
The official approved Dawkins-Kelly policy was that if landlord had one property labeled a “problem property” Defendants could target all of that landlord’s rental properties and could apply Mayor Kelly’s heightened “code to the max” and “call everything” code standard. The net effect of Dawkins’ policy was that the City was able to multiple the “code to the max” punishment to the landlord’s other properties where nnocent protected class tenants lived. One tenant misbehaved, all the tenants of the targeted landlord suffered the consequences of a now weakened landlord who was too busy fighting the City to meet the critical housing needs of protected class members.
Caty Royce provided a good example of how dangerous Dawkins really was at the helm of the City’s Code Enforcement where a disabled woman was forced from her duplex unit due to an unrelated tenant’s alleged behavior in the separate unit.. Royce, pp. 41-42.
Dawkins notes show repeated instructions to inspectors to “get inside”, “try to get inside, code to the max”; “Code to the max; “Do code to the max to help eviction”,; “Try to get to VB Cat. II for code compliance.”
NHPI Director Dawkins’ notes state, “Want to check inside”“Not many code issues on exterior. Inside is a question.”“How get inside?” “inspector is trying to get inside to see if there are interior issues.”
ALTERNATIVE TO HEAVY CODE ENFORCEMENT WAS AVAILABLE TO
MEET LEGITIMATE CODE ENFORCEMENT INTERESTS WITHOUT
DISPARATE IMPACT ON “PROTECTED CLASS” TENANTS
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Defendants had solved the way to properly handle the “problem properties” with the successful “PP 2000” program that encouraged and facilitated a working relationship with the private low-income landlords. 045077-79, “Progress Report on PP 2000 January to September, 2000”. Defendants abandoned a most successful “problem properties” program called, “PP 2000” run by the City from 1999 through 2001. 045077-79.
In fact, the City Council in January 2001, had found the “Problem Properties 2000” “program” so successful that “There are also other problem properties that should be included and the program could be expanded to include those.” Minutes, January 24, 2001, 45654-58.
The PP 2000 program was a “new approach to dealing with properties that had a history of unresolved or repeat Code violation”. Id. The main thrust of the program was to eliminate violations before they enter the formal City complaint system by getting a small group of owners to take a more business like approach to managing their properties.” Id.
The first phase of PP2000 was to identify the owners to include in the program from data in City complaint files and from other sources. Id. The PP 2000 inspectors then met with each of the owners to explain the program, how it affected them and what the City expected from them.
Jeff Hawkins, a member of the PP 2000 inspector group, stated, “the idea with PP2000 is that you communicate with the landlords and see what problems they were having so that you could formulate a better plan for compliance instead of just constant punishment for it”. Hawkins, p.18-19. “[W]e wanted to work towards compliance and towards everybody having
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a good working relationship instead of the constant enforcement, enforcement, enforcement” Id. 26-27. PP 2000 inspectors thought the City could obtain better housing stock with a cooperative relationship with owners. 27-28. PP 2000 had an overall positive effect. p. 33-34.
Due to older buildings and deterioration issues and higher costs, landlords with more properties seemed to have more difficulty. Id. 21. The landlords had cost pressure from tenant caused damage as well. Id. 23
From discussions with the PP 2000 landlords, Hawkins observed that there needed to be a balance between the costs of doing repairs on properties in relation to attempts to keep rents affordable especially with the older rental properties. Id. 22; 67-70.
According to Hawkins, PP 2000 did exactly what the City Council wanted it to do to gain compliance and have a working relationship with the landlords at that time. Id. 26. “It was an overall positive effect” as fewer complaints were coming through the system and the neighborhood people saw an improvement in the housing stock. The "working relationship with the landlords," led to the positive effect (Id. 33), “landlords were partners in this too” and “we wanted to do is communicate with the landlords” Id. 33. “[W]e listened to them, listened to their problems and then tried to work it out together. So we were more of a partnership versus I'm telling you what to do and by when.” Id. 33-34. He recalls that the program was successful with about 70 percent of the PP2000 landlords. Id. 34-35.
Steinhauser was selected by the City for PP2000. Id. 36. Hawkins recalls at least weekly if not daily communications with Steinhauser. Id. 37. Recalls dealing with Steinhauser on the lower East side of City. Id. 37.
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The relationship with Steinhauser is the only property owner Hawkins remembers from the PP2000 Program or for Code Enforcement – he says that relationship was the epitome of the program - the success. Hawkins described his working as a City code inspector and a PP2000 inspector with Steinhauser as a successful relationship and what he wanted for all those other landlords or the other ones in the 70 percent. Id. 42. Essling, 206 (Steinhauser was cooperative).
Hawkins recalls that owners informed the City that if code enforcement pushed too hard, there would be abandonment of the low-income properties. p. 81. Hawkins stated that inspectors enforced minimal property standards, not some suburban covenants or anything of that effect. 69-70
He was concerned that renovation could have an adverse impact on the tenants as the tenant may not be able to find replacement housing. p. 92. If violations were only in one unit of a multi-unit building, he would only condemn the one unit to keep the other unit occupied. p. 93.
See Dick Lippert’s memo dated 10/11/00, re PP 2000 Report, to inspectors Essling, Hawkins, Yannarelly, one page, on success of the PP 2000 program. Ex. 99 to 3rd Engel Aff., STP0408; Joel Essling Memo PP2000 no date - one page - lists Steinhauser, Vue and others; PP2000 Memo - lists 19 owners, including Steinhauser, Vues, PP2000 Memo - lists 17 owners, including Steinhauser, Vue; Also see Dick Lippert Deposition for PP 2000 topics, pages 62, 72, 73, 91, 92, 93, 94.
The City, Kelly and Dawkins abandoned the successful PP 2000 program and adopted
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a policy of confrontation with same low-income protected class landlords with heavy enforcement, excessive consumption fees, condemnations, code compliances, criminal tags, TRAs, which had a adverse impact on same landlords.
The PP 2000 Progress Report memo and related PP 2000 documents, and inspector deposition transcripts (Hawkins, etc), demonstrate that PP 2000 was a great success and would have been available to Kelly and Dawkins as an alternative to their “heavy enforcement” “code to the max” program against low-income landlords, would have improved the housing stock, and avoided the displacement of tenants, and vacant units both during City required renovations and due to long term vacancies.
C.
Plaintiffs have presented evidence of disparate treatment that violates the Fair Housing Act
A disparate treatment claim requires evidence of intent to treat members of a protected class differently than others similarly situated. “Intentional discrimination may be shown by direct or circumstantial evidence.” Duckworth v. St. Louis Metropolitan Police Dept., 491 F.3d 401, 405 (8th Cir. 2008).
In the present case, the City acknowledges that their current system of code enforcement unfairly targets people of color, acknowledges a need for change, but no action is taken. In a December 19, 2005 email message from Jane Prince, legislative aide to former council member Jay Benanav , Ms. Prince states: “the issue of how a complaint based system may unfairly target people of color is a huge one, and I’m not sure what we do to get at it. A new Mayor and Toni’s and Jay’s influence in a new administration can sure help.” Further,
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Ms. Prince discusses the issue of discrimination with a constituent when addressing the number of complaints called-in on specific properties, stating: “we’re thinking it makes sense to invite both Tyrone Terrill from the Human Rights Office, and Bob Kessler, the new LIEP/Code Enforcement director, so that they can help us think through the very real possibility that people color are targeted by the city’s complaint based system.” This statement by a City employee acknowledges that the Defendants’ code enforcement discriminated against minorities, but dismissed the discriminatory effect and took no remedial action. Moreover, the Defendants were put on notice of the discriminatory effect of their conduct, but did not correct the conduct to eliminate the discriminatory effect. From that evidence of deliberate indifference to the discriminatory effect, a reasonable fact-finder could determine that the Defendants acted with discriminatory intent.

Saint Paul MN/ 8th circuit court appllate case 09-1209

There maybe copy errors.

Appellate Case: 09-1209 Page: 1 Date Filed: 09/01/2010 Entry ID: 3699349

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 09-1209

Thomas J. Gallagher; Joseph J. *
Collins, Sr.; Dadder’s Properties, LLC; *
Dadder’s Estates, LLC; Dadder’s *
Enterprises, LLC; Dadder’s Holdings, *
LLC; Troy Allison; Jeff Kubitschek; *
Sara Kubitschek, *
*
Plaintiffs - Appellants, *


* Appeals from the United States
v. * District Court for the
* District of Minnesota.
Steve Magner, individually and as a *
supervisor of City of St. Paul’s *
Department of Neighborhood Housing *
and Property Improvement; Mike *
Cassidy, individually and as a code *
enforcement officer of the City of St. *
Paul; Joel Essling, individually and as a *
code enforcement officer of the City of *
St. Paul; Steve Schiller, individually *
and as a code enforcement officer of the *
City of St. Paul; Joe Yannarelly, *
individually and as a code enforcement *
officer of the City of St. Paul; Dennis *
Senty, individually and as a code *
enforcement officer of the City of St. *
Paul; Michael Urmann, individually *
and as a fire inspector of the City of *
St. Paul; Andy Dawkins, individually *
and as Director of City of St. Paul’s *
Department of Neighborhood Housing *

and Property Improvement; Randy *


Appellate Case: 09-1209 Page: 2 Date Filed: 09/01/2010 Entry ID: 3699349

Kelly, individually and as Mayor of *
City of St. Paul; John Doe; Jane Doe, *
individually and in their official *
capacities as code enforcement officers *
of City of St. Paul’s Department of *
Neighborhood Housing and Property *
Improvement, law enforcement officers *
or other officials or employees of the *
City of St. Paul; City of St. Paul, a *
municipal corporation, *
*
Defendants - Appellees, *

No. 09-1528

Frank J. Steinhauser, III; Mark E. *
Meysembourg; Kelly G. Brisson, *
*
Plaintiffs - Appellants, *
*


v. *
*
City of St. Paul, a municipal *
corporation; Randy Kelly, individually *
and as Mayor of City of St. Paul; Andy *
Dawkins, individually and as Director *
of City of St. Paul’s Department of *
Neighborhood Housing and Property *
Improvement; Lisa Martin, individually *
and as a code enforcement officer of *
City of St. Paul’s Department of *
Neighborhood Housing and Property *
Improvement; Steve Magner, *
individually and as a supervisor of City *

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Appellate Case: 09-1209 Page: 3 Date Filed: 09/01/2010 Entry ID: 3699349

of St. Paul’s Department of *
Neighborhood Housing and Property *
Improvement; Dean Koehnen, *
individually and as a law enforcement *
officer of City of St. Paul; John Doe; *
Jane Roe, individually and in their *
official capacities as code enforcement *
officers of City of St. Paul’s Department *
of Neighborhood Housing and Property *
Improvement, law enforcement officers *
or other officials or employees of the *
City of St. Paul, *
*
Defendants - Appellees. *

No. 09-1579

Sandra Harrilal, *
*
Plaintiff - Appellant, *
*
Bee Vue; Lamena Vue, *
*
Plaintiffs, *
*
Steven R. Johnson, doing business *
as Market Group and Properties, *
*
Plaintiff - Appellant, *
*


v. *
*
Steve Magner, individually and as a *
supervisor of City of St. Paul’s *

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Appellate Case: 09-1209 Page: 4 Date Filed: 09/01/2010 Entry ID: 3699349

Department of Neighborhood Housing *
and Property Improvement; Michael *
Kalis, individually and as a code *
enforcement officer of City of St. Paul; *
Dick Lippert, individually and as a code *
enforcement officer of the City of St. *
Paul; Kelly Booker, individually and as *
a code enforcement officer of the City *
of St. Paul; Jack Reardon, individually *
and as a code enforcement officer of the *
City of St. Paul; Paula Seeley, *
individually and as a code enforcement *
officer of the City of St. Paul; Lisa *
Martin, individually and as a code *
enforcement officer of the City of St. *
Paul; Dean Koehnen, individually and *
as a law enforcement officer of the City *
of St. Paul; Andy Dawkins, individually *
and as Director of the City of St. Paul’s *
Department of Neighborhood Housing *
and Property Improvement; Randy *
Kelly, individually and as Mayor of the *
City of St. Paul; individually, jointly *
and severally; John and Jane Doe, *
individually and in their official *
capacities as code enforcement officers *
of the City of St. Paul’s Department *
of Neighborhood Housing and Property *
Improvement, law enforcement officers *
or other officials or employees of the *
City of St. Paul; City of St. Paul, a *
municipal corporation, *
*
Defendants - Appellees. *

-4



Appellate Case: 09-1209 Page: 5 Date Filed: 09/01/2010 Entry ID: 3699349

Submitted: February 11, 2010
Filed: September 1, 2010

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Several owners and former owners of rental properties in St. Paul, Minnesota
brought these consolidated actions, challenging the City of St. Paul’s (“the City”)
enforcement of its housing code. The property owners appeal the district court’s

(1) dismissal of their claims on summary judgment, (2) denial of sanctions for
spoliation of evidence, and (3) denial of discovery regarding Appellee Steve Magner.
We affirm in all respects except the dismissal of Appellants’ disparate impact claim
under the Fair Housing Act.
I. Background
In 1993, the City enacted the Property Maintenance Code (“the Housing
Code”), which “[e]stablishes minimum maintenance standards for all structures and
premises for basic equipment and facilities for light, ventilation, heating and
sanitation; for safety from fire; for crime prevention; for space, use and location; and
for safe and sanitary maintenance of all structures and premises.” St. Paul, Minn.
Code § 34.01(1). Sometime shortly before or during 2002, the City established the
Department of Neighborhood Housing and Property Improvement (“DNHPI”) as an
executive department responsible for administering and enforcing the Housing Code.
DNHPI was empowered to inspect all one- and two-family dwellings and administer
and enforce laws regulating maintenance of residential property.

Appellee Andy Dawkins was the director of DNHPI from 2002 to 2005. In that
position, Dawkins favored owner-occupied housing over rental housing “for the sake

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of the neighborhood[.]” Toward that end, Dawkins increased the level of Housing
Code enforcement targeted at rental properties. In addition to responding to citizen
complaints about particular properties, DNHPI inspectors conducted proactive
“sweeps” to detect Housing Code violations. Furthermore, Dawkins raised inspection
standards by directing DNHPI inspectors to “code to the max,” that is, writing up
every violation—not just what was called in—and writing up all the nearby
properties—not just the reported properties. Lastly, DNHPI instituted a user-friendly
system for inspectors and observers to report Housing Code violations. Dawkins
expected that this vigilance would help DNHPI raise an additional $500,000 in
revenue, which would cover the costs of additional inspections.

Under Dawkins’ leadership, DNHPI also increased its Housing Code
enforcement efforts regarding so-called “problem properties.” The DNHPI website
defined a problem property by saying: “If you live next door to a problem property
you know it! Constant calls to get rid of the junk, intolerable behavior by occupants
and guests, etc.” DNHPI sought to compel property owners to take greater
responsibility for their properties or, alternatively, force changes in ownership. To
achieve its objectives, DNHPI employed a variety of strategies for renter-occupied
dwellings, including orders to correct or abate conditions, condemnations, vacant-
building registration, fees for excessive consumption of municipal services, tenant
evictions, real-estate seizures, revocations of rental registrations, tenant-remedies
actions, and if necessary, court actions. DNHPI coordinated its efforts with the St.
Paul police and an assistant City attorney.

In addition, the City used a procedure known as “Code Compliance
Certification” to require rental properties to meet current housing and building
standards. The contours of this procedure are unclear, but it appears that the City
required rental property owners to acquire Code Compliance Certification if a
property was remodeled or deemed a dangerous structure, a nuisance building, or
vacant. Code Compliance inspections were conducted by the City’s Office of License,

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Appellate Case: 09-1209 Page: 7 Date Filed: 09/01/2010 Entry ID: 3699349

Inspections, and Environmental Protection, which would evaluate the building’s
structure, plumbing, electrical condition, and mechanical condition. Code Compliance
Certification allegedly forced property owners to undertake expensive renovations,
especially with regard to older properties that were exempt from current building
codes under Minnesota law.

Appellants own or formerly owned rental properties in the City. Appellants’
individual rental portfolios ranged from one property to over forty properties. They
rented primarily to low-income households, and a majority of their tenants received
federal rent assistance. The parties agree that African-Americans generally made up
a disproportionate percentage of low-income tenants in private housing in St. Paul,
and specifically, Appellants claim that they rented to a higher-than-usual percentage
of African-Americans.

Appellants’ properties were subject to the City’s Housing Code enforcement
from 2002 to 2005. They received code enforcement orders that, in many cases, cited
between ten and twenty-five violations per property for conditions including rodent
infestation, missing dead-bolt locks, inadequate sanitation facilities, inadequate heat,
inoperable smoke detectors, broken or missing doors and screens, and broken or
missing guardrails or handrails. Several of Appellants’ properties were designated as
problem properties, subject to Code Compliance Certification, or, in a few cases, both.
As a result of the City’s Housing Code enforcement, Appellants suffered increased
maintenance costs, fees, condemnations, and were forced to sell properties in some
instances.

In 2004 and 2005, Appellants filed these actions against the City, the City’s
mayor (Randy Kelly), the City’s fire inspector (Michael Urmann), a police officer
who worked with DNHPI (Dean Kohnen), and several DNHPI employees, including

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Appellate Case: 09-1209 Page: 8 Date Filed: 09/01/2010 Entry ID: 3699349

Dawkins, a supervisor (Steve Magner), and several code enforcement officers.1 We
refer to Appellees collectively as “the City” unless specification is warranted.
Appellants’ legal claims and the relevant facts are described in greater detail below.

The district court consolidated Appellants’ actions and resolved them together.
The court referred several discovery matters to a magistrate judge, including
Appellants’ motion and renewed motion for sanctions due to the City’s alleged
discovery abuses and Appellants’ motion to compel discovery of Steve Magner’s
personal records. The magistrate judge denied both of those motions, and the district
court affirmed. Then, the City moved for summary judgment. After a hearing, the
district court granted the City’s motion for summary judgment in its entirety.
Appellants challenge the summary judgment order, the denial of spoliation-ofevidence
sanctions, and the denial of discovery regarding Magner’s personal records.

II. Summary Judgment
"We review a decision to grant summary judgment de novo, applying the same
standard as the District Court." Riley v. Lance, Inc., 518 F.3d 996, 999 (8th Cir.
2008). We will affirm if the record shows that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(c)(2). We view the facts in the light most favorable to Appellants,
drawing all reasonable inferences in their favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986).
1The named code enforcement officers are: Mike Cassidy, Joel Essling, Steve
Schiller, Joe Yannarelly, Dennis Senty, Lisa Martin, Michael Kalis, Dick Lippert,
Kelly Booker, Jack Reardon, and Paula Seeley. Appellants do not appeal the district
court’s dismissal of their claims against two unnamed code enforcement officers.

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A. Fair Housing Act
The Fair Housing Act (“FHA”) prohibits property owners and municipalities
from blocking or impeding the provision of housing on the basis of race, color,
religion, sex, familial status, or national origin. 42 U.S.C. § 3604(a)–(b). Appellants
argue that summary judgment was inappropriate because there is sufficient evidence
to support their claims under the following theories: disparate treatment, disparate
impact, retaliation, and failure to affirmatively further fair housing. We address each
theory in turn.2

(1) Disparate Treatment
Disparate-treatment claims under the FHA are tested under the same framework
as Title VII disparate-treatment claims. Ring v. First Interstate Mortgage, Inc., 984
F.2d 924, 926 (8th Cir. 1993) (applying the three-stage Title VII analysis to a FHA
disparate treatment claim). The standard is familiar—did the defendant(s) treat the
plaintiff(s) less favorably than others based on their race, color, religion, sex or
national origin? Appellants contend that the manner in which the City enforced its
Housing Code was discriminatory. Specifically, Appellants allege that the City
enforced the Housing Code more aggressively with regard to their properties because
they rented to a disproportionately high amount of racial minorities, particularly
African-Americans.

Proof of discriminatory purpose is crucial for a disparate treatment claim. Int’l
Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). Summary
judgment is warranted if the plaintiff cannot produce either (a) direct evidence of
discriminatory intent or (b) indirect evidence creating an inference of discriminatory

2The district court concluded that Appellants have prudential standing to pursue
a claim under the FHA, and the City does not challenge that holding on appeal.

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intent under the McDonnell Douglas3 burden-shifting framework. Griffith v. City of
Des Moines, 387 F.3d 733, 736 (8th Cir. 2004); see also East-Miller v. Lake County
Highway Dep’t, 421 F.3d 558, 563–64 (7th Cir. 2005) (applying the “direct evidence”
and McDonnell Douglas frameworks in the FHA context). The district court
concluded that Appellants did not assert a claim under the McDonnell Douglas
framework, and we agree. Presentation of the McDonnell Douglas framework on
appeal raises new issues and is therefore not appropriate for our consideration. See
Cronquist v. City of Minneapolis, 237 F.3d 920, 924–25 (8th Cir. 2001) (refusing to
consider a mixed-motive discrimination theory because it was not presented to the
district court); Universal Title Ins. Co. v. United States, 942 F.2d 1311, 1314 (8th Cir.
1991) (new issues are generally not considered on appeal). As such, we turn to
whether there is direct evidence that discriminatory animus motivated the City’s code
enforcement actions.

Direct evidence is evidence “showing a specific link between the alleged
discriminatory animus and the challenged decision, sufficient to support a finding by
a reasonable fact finder that an illegitimate criterion actually motivated the adverse
employment action.” Griffith, 387 F.3d at 736 (quotation omitted). “Direct evidence
does not include stray remarks in the workplace, statements by nondecisionmakers,
or statements by decisionmakers unrelated to the decisional process itself.” Twymon

v. Wells Fargo & Co., 462 F.3d 925, 933 (8th Cir. 2006) (alteration, quotation marks,
and citations omitted).
Appellants cite many statements that purportedly show the “discriminatory
attitude” of Housing Code enforcement in the City. Nearly all of these statements are
not direct evidence of racial discrimination because they have little or no connection
to a DNHPI policy or action. See id. We limit our discussion to statements from
people within DNHPI or connected to a DNHPI policy or action.

3McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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Appellant Steven Johnson alleges that code enforcement officer Lisa Martin and
police officer Dean Koehnen made racially derogatory remarks about Johnson’s
African-American tenants (e.g., “The black plague come like roaches”) when Johnson
asked why the City was “coming after” his properties. The district court did not
address Johnson’s allegations, however, as Appellants failed to bring them to the
court’s attention. Indeed, the district court noted its frustration with “voluminous
materials—four file boxes worth—submitted by Plaintiffs in opposition to
Defendants’ motions for summary judgment.” Steinhauser v. City of St. Paul, 595 F.
Supp. 2d 987, 1020 (D. Minn. 2008). The court explained that Appellants failed to
“winnow out the relevant documents,” and therefore “the burden of doing so fell to
the Court.” Id. Johnson’s allegations about Martin and Koehnen were contained in
a single paragraph of a thirty-page affidavit, among nearly 2,000 pages of record
evidence. Appellants do not contest the district court’s portrayal of how the evidence
was presented to the district court. Given these circumstances, we decline to reverse
on the basis of Johnson’s allegations. See Midwest Oilseeds, Inc. v. Limagrain
Genetics Corp., 387 F.3d 705, 715 (8th Cir. 2004) (“‘Factual assertions that defeat a
summary judgment,’ however, ‘cannot be presented for the first time to [an] appellate
court, and only those matters properly before [the] district court for summary
judgment consideration are subject to appellate review.’” (citation omitted)); see also
Crossley v. Ga.-Pac. Corp., 355 F.3d 1112, 1113–14 (8th Cir. 2004) (per curiam)
(affirming summary judgment because the plaintiff failed to designate specific facts
as per Rule 56; he attached full transcripts from six depositions and argued that his
claim could be understood only upon a full reading of the depositions); White v.
McDonnell Douglas Corp., 904 F.2d 456, 458 (8th Cir. 1990) (per curiam) (“A district
court is not required to speculate on which portion of the record the nonmoving party
relies, nor is it obligated to wade through and search the entire record for some
specific facts that might support the nonmoving party’s claim.”) (quotation omitted).

On several occasions, viewing the record most favorably to Appellants,
Dawkins made statements that demonstrate his desire and intent to reduce the amount

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of low-income tenants in the City. These statements merit our attention because of
Dawkins’ role within DNHPI. However, all of Dawkins’ statements are facially race-
neutral, and we have stated, “Facially race-neutral statements, without more, do not
demonstrate racial animus on the part of the speaker.” Twymon, 462 F.3d at 934.
Appellants have failed to connect Dawkins’ allegedly hostile attitude toward low-
income tenants with discriminatory intent; merely calling these statements evidence
of racial animus is not enough to create a genuine dispute of fact. See Thomas v.
Corwin, 483 F.3d 516, 527 (8th Cir. 2007) (“Mere allegations, unsupported by
specific facts or evidence beyond the nonmoving party’s own conclusions, are
insufficient to withstand a motion for summary judgment.”).

Appellants also argue that discriminatory intent should be inferred from the
City’s knowledge that its actions would likely have a disproportionate impact on racial
minorities. The Supreme Court discussed a similar theory in Village of Arlington
Heights v. Metropolitan Development Corp., 429 U.S. 252 (1977). There, the court
of appeals held that a city’s zoning decision violated the equal protection clause of the
Fourteenth Amendment, which required a finding of discriminatory intent, solely
because the “ultimate effect” of the decision was racially discriminatory. Id. at 254.
The Supreme Court explained that in some cases, “an important starting point” for
determining discriminatory intent is whether an official action “bears more heavily
on one race than another.” Id. at 266 (quotation omitted). “Sometimes a clear pattern,
unexplainable on grounds other than race, emerges from the effect of the state action
even when the governing legislation appears neutral on its face.” Id. The Court
explained that discriminatory impact alone is not determinative outside of “rare” cases
where the pattern of discriminatory effect is “stark.” Id. Ultimately, the Court held
that an arguable disparate impact on racial minorities was insufficient to prove a
discriminatory purpose. Id. at 269–71.

Applying the Arlington Heights analysis here, the evidence of a disparate
impact on African-Americans, which we discus in greater detail in the next section,

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is not so stark and unexplainable on other grounds to justify, on its own, an inference
of discriminatory purpose. See Ricketts v. City of Columbia, Mo., 36 F.3d 775, 781
(8th Cir. 1994) (“[I]n only a few cases, where a facially neutral policy impacted
exclusively against one suspect class and that impact was unexplainable on neutral
grounds, has the impact alone signaled a discriminatory purpose.”). The City’s
explanation, which has greater support in the record, is that DNHPI targeted properties
occupied mostly by low-income tenants. Although racial minorities were
disproportionately represented, those low-income tenants included people of all races.
Such conduct may be actionable, but not under the rubric of disparate treatment. See
id. (“When there is a rational, neutral explanation for the adverse impact and the law
or custom disadvantages both men and women, then an inference of discriminatory
purpose is not permitted.”).

In sum, there is insufficient evidence to reasonably infer discriminatory intent.
Accordingly, the district court properly granted summary judgment with regard to
Appellants’ disparate treatment claim under the FHA.

(2) Disparate Impact
As alluded to in the previous section, Appellants allege that the City violated
the FHA because aggressive enforcement of the Housing Code had a disparate impact
on racial minorities. We apply a three-step analysis to Appellants’ disparate impact
claim. First, Appellants must establish a prima facie case, which requires showing
“that the objected-to action[s] result[ed] in . . . a disparate impact upon protected
classes compared to a relevant population.” Darst-Webbe Tenant Ass’n Bd. v. St.
Louis Hous. Auth., 417 F.3d 898, 902 (8th Cir. 2005). Stated differently, Appellants
“must show a facially neutral policy ha[d] a significant adverse impact on members
of a protected minority group.” Oti Kaga, Inc. v. S.D. Hous. Dev. Auth., 342 F.3d
871, 883 (8th Cir. 2003). Appellants are not required to show that the policy or
practice was formulated with discriminatory intent. Huntington Branch, NAACP v.

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Town of Huntington, 844 F.2d 926, 934–35 (2d Cir.), aff’d, 488 U.S. 15 (1988) (per
curiam); Smith v. Anchor Bldg. Corp., 536 F.2d 231, 233 (8th Cir. 1976). If
Appellants establish a prima facie case, the burden shifts to the City to demonstrate
that its policy or practice had “‘manifest relationship’” to a legitimate, nondiscriminatory
policy objective and was necessary to the attainment of that objective.
Darst-Webbe, 417 F.3d at 902 (quoting Oti Kaga, 342 F.3d at 883). If the City shows
that its actions were justified, then the burden shifts back to Appellants to show “a
viable alternative means” was available to achieve the legitimate policy objective
without discriminatory effects. Id. at 902–03.

The first component of Appellants’ prima facie case is an identifiable, facially-
neutral policy or practice. See Mems v. City of St. Paul, 224 F.3d 735, 740 (8th Cir.
2000). The district court interpreted Appellants’ disparate impact claim as a challenge
to the City’s policy of enforcing the Housing Code instead of the Federal Housing
Quality Standard (“HQS”), which applies to all rental properties that receive federal
rent assistance. This interpretation was too narrow. Appellants have consistently
challenged the City’s aggressive Housing Code enforcement practices. The common
denominator in Appellants’ affidavits, allegations, and briefs is that the City issued
false Housing Code violations and punished property owners without prior
notification, invitations to cooperate with DNHPI, or adequate time to remedy
Housing Code violations. Punishments included fines, evictions, condemnations,
revocation of rental registrations, and the financial burden of Code Compliance
Certification. Therefore, turning to the next step in the prima facie case, we evaluate
whether the City’s aggressive code enforcement resulted in a disparate impact on a
protected class.

To demonstrate a disparate impact, Appellants have offered evidence
supporting the following conclusions:

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(a)
The City experienced a shortage of affordable housing. The City
represented in its 2003 report to the U.S. Department of Housing and
Urban Development (“HUD”) that “the lack of affordable housing
opportunities remains a major issue facing many Saint Paul lower
income households, who are also protected class members,” and that
“27.6% of Saint Paul’s lower income residents cannot find adequate
affordable housing in the City.” Then, in 2005, the City estimated that
32% of the households in St. Paul had unmet housing needs (cost
burdens, overcrowding, etc.).
(b)
Racial minorities, especially African-Americans, made up a
disproportionate percentage of lower-income households in the City that
rely on low-income housing. The district court noted that the parties
agree that African-Americans make up a disproportionate percentage of
low-income tenants in the City. The City’s 2000 census data showed
that 11.7% of the City’s population was African-American, whereas data
from October 2004 showed that 61% and 62% of those on waiting lists
for public housing and Section 8 assistance, respectively, were African-
American. Further, the City’s 2000 report to HUD showed that 52% of
minority-headed renter households were in the bottom bracket for
household adjusted median family income, compared to 32% of all renter
households.
(c)
The City’s aggressive Housing Code enforcement practices increased
costs for property owners that rent to low-income tenants. Appellants
produced at least six affidavits describing the toll that the City’s
aggressive Housing Code enforcement took on their rental business.
They reported a substantial increase in costs, resulting in evictions for
tenants and “forced sales” of their properties in some cases. These
allegations are corroborated by an internal memorandum from the City’s
fire marshal in 1995, comparing the Housing Code and the HQS and
concluding that the Housing Code was more strict in regard to 82% of
the examined categories.
(d)
The increased burden on rental-property owners from aggressive code
enforcement resulted in less affordable housing in the City. Documents
from the City and the Public Housing Authority acknowledged that any
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decrease in federally assisted rental housing would reduce the amount of
affordable housing in the City. Those predictions were supported by the
City’s Vacant Buildings Report, which showed that the number of vacant
homes listed in the City rose from 367 to 1,466 between March 2003 and
November 2007, which was a nearly 300% increase. Further, Appellants
submitted affidavits from three tenants who alleged that they endured
hardship when their homes were condemned for minimal or false
Housing Code violations.

These premises, together, reasonably demonstrate that the City’s aggressive
enforcement of the Housing Code resulted in a disproportionate adverse effect on
racial minorities, particularly African-Americans. Viewed in the light most favorable
to Appellants, the evidence shows that the City’s Housing Code enforcement
temporarily, if not permanently, burdened Appellants’ rental businesses, which
indirectly burdened their tenants. Given the existing shortage of affordable housing
in the City, it is reasonable to infer that the overall amount of affordable housing
decreased as a result. And taking into account the demographic evidence in the
record, it is reasonable to infer racial minorities, particularly African-Americans, were
disproportionately affected by these events. See 215 Alliance v. Cuomo, 61 F. Supp.
2d 879, 889 (D. Minn. 1999) (“[M]inority, elderly, and disabled tenants face
significant hurdles in locating housing above and beyond the mere shortage of
low-income housing. . . . Any policy which results in the displacement of low-income
tenants will disproportionately affect these particular low-income citizens whose
housing options are especially constrained.”). Though there is not a single document
that connects the dots of Appellants’ disparate impact claim, it is enough that each
analytic step is reasonable and supported by evidence.

We note that a common method of showing a disproportionate adverse effect
is to compare levels of dependence on affordable housing. Where a plaintiff
demonstrates that a protected group depends on low-income housing to a greater
extent than the non-protected population, other courts have found it reasonable to infer
that the protected group will experience a disproportionate adverse effect from a

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policy or decision that reduces low-income housing. See, e.g., Tsombanidis v. W.
Haven Fire Dep’t, 352 F.3d 565, 575–76 (2d. Cir. 2003) (plaintiffs can establish
disparate impact by showing statistics that (1) x% of all of a protected class in an area
depend on a type of housing affected by the challenged policy or practice, (2) y% of
all of the non-protected population depends on that type of housing, and, crucially, (3)
x is significantly greater than y); Huntington Branch, 844 F.2d at 938 (disparate
impact was established by evidence showing the number of African-American
families that need subsidized housing, currently occupied subsidized rental projects,
hold Section 8 certificates, and are on the waiting list for such certificates is
disproportionate to the percentage of African-American families in the general
population); Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1065 (4th Cir. 1982)
(“The undisputed statistical picture leaves no doubt that the black population of
Bladen County was adversely affected by the termination of the housing project, as
it is that population most in need of new construction to replace substandard housing,
and it is the one with the highest percentage of presumptively eligible applicants.”);
Owens v. Charleston Hous. Auth., 336 F. Supp. 2d 934, 943 (E.D. Mo. 2004), aff’d
in part, Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729 (8th Cir. 2005)
(inferring a disparate impact based on evidence “that African-Americans represent a
disproportionate number of low-income residents in need of low-income housing”);
cf. Artisan/Am. Corp. v. City of Alvin, Tex., 588 F.3d 291, 298–99 (5th Cir. 2009)
(plaintiff’s claim failed due to absence of the types of evidence typically used to show
a disparate impact: a waiting list for affordable housing, a demonstrated shortage of
affordable housing, or identifiable tenants affected by the challenged action).

Relying on Reinhart v. Lincoln County, 482 F.3d 1225, 1230 (10th Cir. 2007),
the City argues that Appellants must do more than show that the Housing Code
increases the cost of low-income housing and that African-Americans tend to have
lower incomes. The City’s argument is misplaced, because Appellants have shown
more in this case. Viewed most favorably to Appellants, the evidence demonstrates
that there is a shortage of affordable housing and that the City’s aggressive code

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enforcement exacerbated that shortage. See United States v. City of Black Jack, Mo.,
508 F.2d 1179, 1186 (8th Cir. 1974) (FHA disparate impact claim supported in part
by the fact that forty percent of African-American residents were living in substandard
or overcrowded units).4 To the extent the City argues that a FHA violation cannot
arise from a statistical link between income and race, we disagree. “While [the City]
ultimately may not be held liable under the [FHA] for economic discrimination, the
existence of a significant statistical disparity, even one resulting from economic
inequality, is sufficient to create a prima facie case and shift the burden to come
forward with a legitimate business justification for the challenged practice.” Williams

v. The 5300 Columbia Pike Corp., 891 F. Supp. 1169, 1180 n.23 (E.D. Va. 1995); see
also Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1288 (7th
Cir. 1977), cert. denied, 434 U.S. 1025 (1978) (exclusion of low-cost housing units
from defendant village had a discriminatory effect because “a greater number of black
people than white people in the Chicago metropolitan area satisfy the income
requirements for federally subsidized housing”); Black Jack, 508 F.2d at 1186
(reversing dismissal of plaintiff’s FHA challenge to an exclusionary zoning ordinance,
holding that disparate impact was established in part because a larger proportion of
African-American than white households have low incomes); Bronson v. Crestwood
Lake Section 1 Holding Corp., 724 F. Supp. 148, 154–55 (S.D.N.Y. 1989) (defendant
apartment complex violated the FHA by refusing to consider prospective tenants
based on their income levels).
4Of course, merely showing that there is a shortage of housing accessible to a
protected group is insufficient to establish a prima facie case for a disparate impact
claim. Plaintiffs must also show that such a shortage is causally linked to a neutral
policy, resulting in a disproportionate adverse effect on the protected population. See
Quad Enters. Co., LLC v. Town of Southold, No. 09-2963-cv, 2010 WL 807946, at
*2 (2d Cir. Mar. 10, 2010) (“Simply proffering evidence that there is a shortage of
handicapped-accessible housing in the Town of Southold compared to its handicapped
population does not show that the neutral policy at issue is the cause.”).

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The district court concluded that Appellants must show (1) the different costs
of rent for African-Americans under the City’s Housing Code and the federal HQS
and (2) the percentages of African-Americans and non-African-Americans who could
not afford rent because the City enforced the Housing Code instead of the HQS. We
agree that such a before-and-after cost-of-rent comparison is one way to show that
African-Americans experience a disproportionate adverse effect. However, it is not
the only way.5 Appellants are not required provide a particular statistical comparison.
See Teamsters, 431 U.S. at 340 (statistics to prove discrimination “come in infinite
variety and . . . their usefulness depends on all of the surrounding facts and
circumstances.”). We conclude that Appellants offered enough evidence to withstand
summary judgment on their prima facie case, thereby shifting the burden to the City
to show a legitimate, non-discriminatory objective.

Turning to the second step of our analysis, Appellants concede that enforcement
of the Housing Code has a manifest relationship to legitimate, non-discriminatory
objectives. Specifically, the City has shown that enforcement of the Housing Code
promotes the objectives of providing minimum property maintenance standards,
keeping the City clean and housing habitable, and making the City’s neighborhoods
safe and livable. As such, the burden falls back on Appellants to “offer a viable
alternative that satisfies the [City’s] legitimate policy objectives while reducing the
. . . discriminatory impact” of the City’s code enforcement practices. Darst-Webbe,
417 F.3d at 906 (emphasis removed).

5In support of the district court’s standard, Appellees cite Andrews v. City of
New York, No. CV-01-7333, 2004 U.S. Dist. LEXIS 30290 (E.D.N.Y.) and Brown

v. Omaha Housing Authority., No. 8:05CV423, 2007 WL 2123750 (D. Neb. July 20,
2007). Neither of those cases, however, specifies what method of proof is required
for a disparate impact claim. At most, Andrews and Brown support the conclusion
that statistics are useful to demonstrate a disparate impact. See also Tsombanidis, 352
F.3d at 575–76 (statistical evidence is “normally used in cases involving fair housing
disparate impact claims”).
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The district court held in the alternative that Appellants’ disparate impact claim
fails as a matter of law under the third step of the burden-shifting analysis. On appeal,
Appellants identify as a viable alternative the City’s former program for Housing
Code enforcement called “Problem Properties 2000” (“PP2000”).6 A “Progress
Report” prepared by City employees in charge of PP2000 lists the goals and tactics
of PP2000: identification of properties with a history of unresolved or repeat Housing
Code violations, meeting with the owners individually, encouraging the owners to
take a more business-like approach to managing their properties, keeping closer tabs
on changes of ownership, and using consistent inspectors at each property. Appellants
contend that PP2000 embodied a flexible and cooperative approach to code
enforcement, which achieved the goals of code enforcement while maintaining a
consistent supply of affordable housing. In support, they point to the Progress Report,
which describes meetings with property owners as “very productive in gaining the
cooperation of owners to step up their efforts towards improving their properties and
the neighborhoods they are in.” The report described a “good working relationships
and lines of communication with these owners,” which resulted in “owners working
hard to be pro active in maintaining their properties.” The report concluded, “[T]he
program has been effective in eliminating complaints against the participating
owners.” These conclusions are corroborated by statements from a member of the
PP2000 inspector group (Jeff Hawkins); a code enforcement officer (Appellee Dick
Lippert); and Appellant Frank Steinhauser.

Thus far, the City has not argued that PP2000 would be more costly or would
fail to accomplish the objectives of Housing Code enforcement. Rather, the City

6The district court stated that Appellants abandoned PP2000 as a proposed
alternative. However, Appellants argued for four pages in their joint brief in
opposition to summary judgment that PP2000 was an alternative to the City’s “heavy
code enforcement.” Appellants did not expressly abandon PP2000 as an alternative
during the summary judgment hearing, and therefore we will consider it in this appeal.

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asserts that PP2000 would not reduce the alleged impact on protected class tenants.
The district court agreed with the City, explaining, “Because participating landlords
were not excused from compliance with the Housing Code, they would still incur the
same costs of compliance with the housing code, leaving any alleged discriminatory
effect on African-Americans unchanged.” Steinhauser, 595 F. Supp. 2d at 999 n.9.
This reasoning, however, fails to appreciate that Appellants complain about how the
City enforced the Housing Code—not just the code’s standards and requirements.
Appellants offer evidence that the challenged enforcement practices burdened rental-
property owners and thereby reduced affordable housing options. There is also
evidence that PP2000 generated a cooperative relationship with property owners,
achieved greater code compliance, and resulted in less financial burdens on rental
property owners. It is reasonable to infer from these facts, viewed most favorably to
Appellants, that PP2000 would significantly reduce the impact on protected class
members. Thus, there is a genuine dispute of fact regarding whether PP2000 was a
viable alternative to the City’s aggressive Housing Code enforcement practices.

Appellees do not advance any other basis for dismissing the FHA disparate
impact claim. Accordingly, summary judgment was improper as to Appellants’
disparate impact claim.

(3) Other FHA Claims
The FHA also prohibits retaliation against any person on account of his having
exercised or enjoyed a right granted or protected by the FHA. 42 U.S.C. § 3617; see
generally Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d
35, 54 (2d Cir. 2002) (elements of FHA retaliation claim). Appellants vaguely assert
that the City’s code enforcement actions were retaliatory, but they have not identified
how they exercised or encouraged others to exercise rights under the FHA or how the
City retaliated. Appellants’ unsupported and conclusory allegations cannot defeat
summary judgment. Fed. R. Civ. P. 56(e)(2) (nonmoving party may not “rely merely

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on allegations or denials in its own pleading; rather its response must . . . set out
specific facts showing a genuine issue for trial”) (emphasis added); Weger v. City of
Ladue, 500 F.3d 710, 728 (8th Cir. 2007) (same). Further, to the extent that
Appellants allege that the City retaliated against them for leasing to tenants in
protected classes, their claim fails as a matter of law. Appellants were not exercising
a right under the FHA by leasing to racial minorities. Were we to adopt Appellants’
expansive view of § 3617, every disparate treatment claim would automatically
become a retaliation claim.

Appellants also contend that the City failed to “affirmatively further fair
housing,” contrary to its certifications to HUD.7 Included in this duty, according to
Appellants, was an obligation to analyze impediments to fair housing. This claim is
not properly before the Court because Appellants failed to pursue it as anything more
than background information before the district court. See Universal Title, 942 F.2d
at 1314. Were we to consider this claim, we would nonetheless conclude that the
City’s duty to “affirmatively further fair housing” has no independent significance.
See Langlois v. Abington Hous. Auth., 234 F. Supp. 2d 33, 72–73 (D. Mass. 2002)
(duty to affirmatively further fair housing mirrors the obligations imposed by the
FHA); see also Charleston Hous. Auth., 419 F.3d at 740 (assuming that the
“affirmatively further fair housing” claim is subsumed by the FHA claim).

Accordingly, the district court properly granted summary judgment on
Appellants’ claims that the City unlawfully retaliated against them, failed to
affirmatively further fair housing, and failed to analyze impediments to fair housing.

7The duty to affirmatively further fair housing is actually rooted in the Quality
Housing and Work Responsibility Act, 42 U.S.C. § 1437c-1(d)(16).

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B. Claims Pursuant to 42 U.S.C. §§ 1981, 1982, and 1985
Appellants’ claims pursuant to 42 U.S.C. §§ 1981, 1982, and 1985 are
duplicative with their FHA disparate treatment claim, as the underlying constitutional
violations for these claims require a showing of discriminatory intent. See Dirden v.
Dep’t of Hous. & Urban Dev., 86 F.3d 112, 114 (8th Cir. 1996) (per curiam) (sections
1981 and 1982); Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996) (section 1985).
Appellants acknowledge this overlap and argue that the district court did not consider
“the evidence from the FHA analysis” when it evaluated their constitutional claims.
However, the “evidence from the FHA analysis” is insufficient to establish
discriminatory intent, and therefore it is irrelevant that the district court did not repeat
its analysis. Because there is insufficient evidence to show a discriminatory intent,
see supra Sec. II-A-(1), summary judgment was proper as to Appellants’ claims under
§§ 1981, 1982, and 1985.

C. Equal Protection
Appellants contend that the district court improperly dismissed their equal-
protection claim under 42 U.S.C. § 1983. Appellants do not argue that they are
members of a suspect class or that their claims involve a fundamental right. Instead,
they assert a “class of one” claim based on the City’s preferential treatment of the
Public Housing Authority (“PHA”), a distinct government entity funded by HUD that
provided 4,300 units of public housing in St. Paul. To prevail on this claim,
Appellants must prove that the City “intentionally treated [them] differently from
others similarly situated and that there is no rational basis for the difference in
treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).

Even assuming arguendo that the City intentionally treated PHA differently
than private property owners, summary judgment was warranted because Appellants
have not refuted the rational basis for treating PHA differently from private rental

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properties. As the district court explained, “PHA is an organization with a
comprehensive inspection schedule, staff dedicated to maintenance, and a
demonstrated record for maintaining its properties.” Steinhauser, 595 F. Supp. 2d at
1008. The evidence presented by Appellees shows that PHA responds quickly and
appropriately to DNHPI correction orders. The district court concluded, “Given the
City’s limited resources and PHA’s record of maintaining its properties, Defendants
have a rational basis for permitting PHA to manage its own repairs.” Id. at 1009.
Appellants fail to explain why this justification was inadequate. We conclude,
therefore, that summary judgment was appropriate on their equal-protection claim.

D. Substantive Due Process
Appellants in Case No. 09-1209 (“the Gallagher Appellants”) appeal the
dismissal of their substantive due process claim pursuant to 42 U.S.C. § 1983. We
interpret their claim as challenging the City’s Housing Code enforcement as applied
to them, not as a facial challenge to any policy or practice. “[T]he theory of
substantive due process is properly reserved for truly egregious and extraordinary
cases.” Myers v. Scott County, 868 F.2d 1017, 1018 (8th Cir. 1989). To prevail on
this claim, the Gallagher Appellants must show “a constitutionally protected property
interest and that [City] officials used their power in such an arbitrary and oppressive
way that it ‘shocks the conscience.’” Entergy, Ark., Inc. v. Nebraska, 241 F.3d 979,
991 (8th Cir. 2001) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 845–46
(1998)). In light of the uncontested legitimate goals of enforcing the Housing Code,
there is insufficient evidence to reasonably conclude that this is a “truly egregious and
extraordinary” example of government regulation.

In addition, the Gallagher Appellants contend that Code Compliance
Certification violated their substantive due process rights because that procedure
conflicts with the Minnesota State Building Code. The supposed conflict with

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Minnesota state law is not actionable under § 1983, Myers, 868 F.3d at 1018, and will
be discussed further in Section II-G.

For these reasons, summary judgment was proper on the Gallagher Appellants’
substantive due process claim.

E. Void for Vagueness
The Gallagher Appellants allege that the St. Paul Legislative Code is void for
vagueness in violation of the due process clauses of the Fifth and Fourteenth
Amendments. They appear to assert both an “as applied” challenge and a facial
challenge.

First, the Gallagher Appellants challenge the term “vacant building” in
§ 43.02(7)(e) as applied to the property at 1522/1524 Carroll Ave. The Carroll Ave.
property was allegedly declared vacant twenty-three days after the property was sold
to Appellant Troy Allison. The Gallagher Appellants complain that the DNHPI
inspector ignored the “obvious occupancy” of the home and based his vacancy
determination merely on an observation that the second-story window lacked any
blinds or window coverings. However, as the district court noted, Allison admitted
in his deposition testimony that the downstairs unit at the Carroll Ave. property was
unoccupied and had multiple Housing Code violations when the City declared it a
vacant building. The Gallagher Appellants do not challenge that finding on appeal.
As such, the Carroll Ave. property was clearly within the definition of a vacant
building. See St. Paul, Minn. Code § 43.02(7)(e) (defining a “vacant building” as “[a]
building or portion of a building which is . . . unoccupied and has multiple housing or
building code violations”). Therefore, Allison cannot complain of the vagueness of
§ 43.02(7)(e). See Parker v. Levy, 417 U.S. 733, 756 (1974) (“One to whose conduct
a statute clearly applies may not successfully challenge it for vagueness.”).

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The Gallagher Appellants also assert a facial challenge to several chapters of
the St. Paul Code under the void-for-vagueness doctrine. Facial challenges to
legislative enactments are, to say the least, discouraged. See United States v.
Stephens, 594 F.3d 1033, 1037 (8th Cir. 2010). Appellants’ basic complaint is that
the St. Paul Code does not provide sufficient notice of rental property owners’
obligations under the law, placing unwarranted discretion in the hands of DNHPI.
The Gallagher Appellants point to several City employees’ inability to explain the
categorization of vacant buildings and the meaning of the terms “problem property”
and “Code Compliance Certification.” However, the Gallagher Appellants must do
more than allege general confusion regarding a legislative enactment. To start with,
they must identify a particular section of the St. Paul Code that is impermissibly
vague, as we will not declare entire chapters of the St. Paul Code facially
unconstitutional. Appellants fail to reference a particular section of the St. Paul Code,
let alone analyze why that section is vague. Without more, the Gallagher Appellants’
facial void-for-vagueness claim fails as a matter of law.

F. RICO8
Appellants allege causes of action under 18 U.S.C. §§ 1962(c) and (d). “A
plaintiff who brings suit under 18 U.S.C. § 1962(c) must prove that the defendant
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). Under
§ 1962(d), conspiracy to violate § 1962(c) is also prohibited. “Racketeering activity”
is defined in 18 U.S.C. § 1961(1) as a list of predicate acts, including certain state law
crimes, conduct that is indictable under various federal provisions, and numerous
other offenses. On appeal, Appellants have narrowed the alleged RICO predicate acts
to several patterns of conduct, which we address in turn.

8Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq.

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Appellants allege that Magner, a DNHPI supervisor, engaged in a scheme of
extortion and attempted extortion. Specifically, they allege that Magner approached
property owners after he wrote up Housing Code violations and offered to arrange a
sale of their property for a price well-below market value. It is undisputed that none
of those property owners actually accepted Magner’s offer. Appellants assert that
Magner transferred “inside knowledge” to a “close friend,” Wally Nelson, who
subsequently purchased “many distressed single family and duplex homes under
Magner’s control.” They further allege that Nelson, in return, has provided
construction services to Magner’s father at a discounted rate.

Even if we assume there is sufficient evidence of a RICO predicate act,
Appellants lack standing to challenge Magner’s conduct. Importantly, the only
evidence offered to support Appellants’ allegations are three affidavits from rental-
property owners who are not plaintiffs in these consolidated lawsuits. Appellants
have not shown that they themselves suffered any injury from the alleged extortion
scheme, and therefore their RICO-based extortion claims fail for lack of standing. See
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985) (“[T]he plaintiff only has
standing if, and can only recover to the extent that, he has been injured in his business
or property by the conduct constituting the violation.”); Bowman v. W. Auto Supply
Co., 985 F.2d 383, 384 (8th Cir. 1993) (Section 1964(c) “confers standing on any
individual who has experienced injury to his or her business or property that occurred
‘by reason of’ a RICO violation”); see also Terminate Control Corp. v. Horowitz, 28
F.3d 1335, 1347 (2d Cir. 1994).

Next, the Appellants in Cases No. 09-1528 and 09-1579 argue on appeal that
the City went so far as to ‘fix’ the State District Court in their favor.” Collectively,
the allegations amount to a pattern of cooperation between Dawkins, the city attorney,
the mayor, a housing referee, and a Minnesota state judge, resulting in a “crackdown”
on landlords in the City. Though these are serious allegations, summary judgment
was nonetheless appropriate. The sole evidentiary basis for this claim is Appellant

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Meysembourg’s affidavit, which essentially mirrors the argument in Appellants’ brief.
Notably, Meysembourg’s affidavit merely states that he “learned” this troublesome
story without any explanation of how he learned it. Appellants “may not rest on mere
allegations,” but instead must “set forth specific facts showing that there is a genuine
issue for trial.” Postscript Enters. v. City of Bridgeton, 905 F.2d 223, 226 (8th Cir.
1990) (quotation omitted). Affidavits are one way to set forth such facts, but “the
affidavits must be made on personal knowledge, must set forth facts which would be
admissible in evidence, and must show affirmatively that the affiant is competent to
testify to the matters stated.” Id. Under these standards, Appellants’ proffered
evidence is insufficient. Alternatively, Appellants’ claim fails because they have not
explained what predicate act they are alleging. General allegations of intergovernmental
cooperation and use of phrases like “buy in” are not enough to
formulate a RICO claim.

Appellants allege other predicate acts, including falsification of Housing Code
violations, intentional delay and misdirection of notices, concealment of the strict
nature of the Housing Code, condemnation of properties without justification, and
violation of the state building code. These claims, however, lack adequate evidentiary
support for a RICO claim. Accordingly, summary judgment was appropriate on all
of Appellants’ RICO claims.

G.
State Law Claims – Abuse of Process, Tortious Interference with
Contract, Tortious Interference with Business Expectancy
Appellants seemingly appeal the district court’s dismissal of their state law
claims, but they fail to offer any evidence in support of these claims or explain why
the district court’s analysis was wrong. Instead, they merely reiterate the theme of
their case—the “discriminatory environment and attitude in housing code
enforcement.” These conclusory allegations are insufficient to defeat summary
judgment. Rodgers v. City of Des Moines, 435 F.3d 904, 907–08 (8th Cir. 2006)

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(“Without some guidance, we will not mine a summary judgment record searching for
nuggets of factual disputes to gild a party’s arguments.”).

H. Conflict with the Minnesota State Building Code
Appellants argue that the City’s use of Code Compliance Certification violated
the Minnesota State Building Code by requiring properties to satisfy current building
code standards, thereby removing “grandfathered” protections under state law.
Appellants have articulated this claim under the doctrine of preemption. See generally
City of Morris v. SAX Invs., Inc., 749 N.W.2d 1 (Minn. 2008) (holding that the
Minnesota State Building Code expressly preempts a city’s licensing ordinances for
rental properties). We do not reach Appellants’ preemption arguments because they
are not before the Court. We have reviewed the latest amended complaints in these
actions, which total 228 pages, and even the most liberal construction of the
complaints does not indicate a preemption claim. Indeed, the amended complaints do
not even allege that the City has violated state law, let alone state “a short and plain
statement of the claim showing that [Appellants are] entitled to relief.” Fed. R. Civ.

P. 8(a)(2). As such, Appellants’ preemption arguments are inapposite to the causes
of action before the Court. We note that Appellants may amend their complaint on
remand, see City of Columbia, Mo. v. Paul N. Howard Co., 707 F.2d 338, 341 (8th
Cir. 1983) ("An amendment can be proper after remand to the district court even if the
claim was presented for the first time on appeal or had not been presented to the
district court in a timely fashion."), and also that our partial affirmance of summary
judgment in this case is without prejudice to any preemption claim that may be
available in state court.
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III. Spoliation-of-Evidence Sanctions
A brief history of the discovery disputes in this case is appropriate. Appellants
filed their complaints in these actions in May 2004, March 2005, and July 2005.
Initial discovery requests were served as early as November 2004. In 2007,
Appellants learned that, pursuant to routine document-retention policies, the City
destroyed emails sent or received prior to December 2005 and Truth-in-Sale-of-
Housing (“TISH”) reports from 2001 to 2003.9 Appellants moved for sanctions
against the City based on the City’s failure to produce several documents not relevant
to this appeal and failure to place a litigation hold on destruction of TISH reports and
emails/e-data. The magistrate judge denied the motion for sanctions, explaining that
Appellants failed to demonstrate prejudice, i.e., that the material would have contained
pertinent evidence. The magistrate judge noted that Appellants could renew their
motion for sanctions if and when they could demonstrate prejudice. The district court
affirmed the magistrate judge’s denial of sanctions.

In February 2008, Appellants renewed their motion for sanctions. The
magistrate judge noted the “extensive discovery” that had occurred since the court’s

9The City’s Truth-in-Sale-of-Housing ordinance is a consumer protection
measure that requires any person who sells a dwelling in the City to have an
evaluation completed by a TISH evaluator licensed by the TISH examining board. St.
Paul, Minn. Legis. Code § 189.03. The TISH evaluator, who is not a city employee,
then produces a TISH disclosure report. The owner must (a) make available the TISH
report to all potential buyers and (b) file the TISH report with the examining board
before the sale of the dwelling. Id. As the district court recognized, the 2001-2003
TISH reports may have contained pertinent evidence in this case because TISH
evaluators are required to note deviations from TISH guidelines, major structural
defects, and immediate hazards to health and safety. Id. § 189.05. However, the
probative value is likely weak, as the St. Paul Code also states, “Nothing in the
disclosure report shall indicate, or shall be deemed to indicate, that such dwellings
meet all minimum housing and building standards.” Id.

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first order. She then denied the renewed motion for sanctions because Appellants still
failed to demonstrate prejudice. The magistrate also concluded that Appellants did
not demonstrate that the City intentionally destroyed or withheld evidence to suppress
the truth. The district court affirmed.

Appellants challenge both denials of sanctions, arguing that the City abused the
discovery process by failing to place a litigation hold on the destruction of emails and
TISH reports. They request an inference that “the evidence destroyed was
unfavorable” to the City. District courts have the inherent power to “fashion an
appropriate sanction for conduct which abuses the judicial process.” Chambers v.
NASCO, Inc., 501 U.S. 32, 44–45 (1991). We review an order denying discovery
sanctions for an abuse of discretion. Stevenson v. Union Pac. R.R. Co., 354 F.3d 739,
745 (8th Cir. 2004). “We give substantial deference to the district court’s
determination as to whether sanctions are warranted because of its familiarity with the
case and counsel involved.” Willhite v. Collins, 459 F.3d 866, 869 (8th Cir. 2006);
accord Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007).

It appears that, with the assistance of a data-recovery firm, the City provided
Appellants over one million email files following the magistrate judge’s first order.
With regard to the email files produced, the district court acted within its discretion
by refusing sanctions. See Greyhound Lines, 485 F.3d at 1035 (“Because Archway
received responsive answers months before trial, the district court properly refused
discovery sanctions.”). To the extent Appellants complain about the delay in
production of those email files, such prejudice was remedied at the district-court level
by the postponement of the summary judgment hearing and the extension of pretrial
deadlines. Indeed, Appellants had access to the email files three months before they
filed their brief opposing the City’s motion for summary judgment.

Appellants contend that the City has not produced all email files from before
December 2005, although the record on this point is not very clear. Giving Appellants

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the benefit of the doubt, we assume the City has not produced some of the requested
email files from City employee accounts. Appellants argue that the destroyed email
files would have supported their claim of intentional discrimination. However,
Appellants offer no support for such speculation; there is no basis for inferring that
the missing emails would be of a different character than the emails already recovered
and produced. Therefore, we agree that Appellants have not demonstrated the
requisite prejudice. See Stevenson, 354 F.3d at 748 (prejudice required before
sanctions are appropriate); see also Koons v. Aventis Pharm., Inc., 367 F.3d 768, 780
(8th Cir. 2004) (no prejudice where there is no evidence that the lost document
contained anything that would have affected the course of litigation).

With regard to the TISH reports, the City provided Appellants with a list of
forty-five TISH evaluators who prepared disclosure reports on properties in the City
from 2001 to 2003. From that information, Appellants could subpoena the TISH
reports (at the City’s expense). Appellants chose not to subpoena the TISH evaluators
for their records. The magistrate judge concluded, “Such a failure to pursue discovery
is incongruent with Plaintiff’s claim of prejudice.” We agree. In evaluating prejudice,
we have looked to whether an allegedly harmed party took other available means to
obtain the requested information. See Sentis Group, Inc. v. Shell Oil Co., 559 F.3d
888, 903 (8th Cir. 2009). Under these circumstances, the district court did not abuse
its discretion by finding that prejudice was lacking.

Also critical to our decision is the magistrate judge’s conclusion that the City
did not intentionally destroy or withhold evidence in an attempt to suppress the truth.
See Greyhound Lines, 485 F.3d at 1035 (“The ultimate focus for imposing sanctions
for spoliation of evidence is the intentional destruction of evidence indicating a desire
to suppress the truth[.]”). To be sure, a district court does not abuse its discretion by
imposing sanctions, even absent an explicit bad faith finding, where a party destroys
specifically requested evidence after litigation has commenced. Stevenson, 354 F.3d
at 749–50. However, where a court expressly finds, as here, that there is no evidence

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of intentional destruction of evidence to suppress the truth, then the district court also
acts within its discretionary limits by denying sanctions for spoliation of evidence.
See Morris v. Union Pac. R.R., 373 F.3d 896, 901 (8th Cir. 2004) (“The most
important consideration in our analysis is the district court’s own finding regarding
Union Pacific’s intent.”).10

The district court did not abuse its discretion by denying Appellants’ motion for
sanctions and renewed motion for sanctions.

IV. Discovery of Magner’s Personal Records
The Gallagher Appellants also appeal the district court’s denial of their motion
to compel the production of Magner’s tax, banking, and cell phone records. They
contend that these records would lead to discoverable evidence to prove extortion for
their RICO claim. This issue does not warrant further discussion, as we agree with
the magistrate judge’s sound reasoning and conclude that the district court did not
abuse its discretion. See Stuart v. Gen. Motors Corp., 217 F.3d 621, 631 (8th Cir.
2000) (standard of review for denial of motion to compel).

V. Conclusion
For the foregoing reasons, the district court’s order granting summary judgment
is reversed with regard to Appellants’ disparate impact claim and affirmed as to the
remaining claims. We affirm the district court’s denial of Appellants motions for

10Appellants argue in their reply briefs that the magistrate judge improperly
required them to demonstrate bad faith as a precondition for spoliation-of-evidence
sanctions. However, Appellants failed to assert their legal argument in their opening
briefs, thereby depriving the Court of full briefing on this issue. As such, we deem
Appellants’ argument waived. See Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir.
2008).

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sanctions, renewed motion for sanction, and motion to compel. We remand these
consolidated cases for further proceedings consistent with this opinion.11

11We reject Appellants’ request that we assign the case on remand to a district
judge from outside the District of Minnesota.

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Appellate Case: 09-1209 Page: 1 Date Filed: 09/01/2010 Entry ID: 3699349

United States Court of Appeals

For The Eighth Circuit

Thomas F. Eagleton U.S. Courthouse
111 South 10th Street, Room 24.329

St. Louis, Missouri 63102

VOICE (314) 244-2400

Michael E. Gans

FAX (314) 244-2780

Clerk of Court

www.ca8.uscourts.gov

September 01, 2010

West Publishing
Opinions Clerk
610 Opperman Drive
Building D D4-40
Eagan, MN 55123-0000

RE:
09-1209 Thomas J. Gallagher, et al v. Steve Magner, et al
09-1528 Frank Steinhauser, III, et al v. City of St. Paul, etc., et al
09-1579 Sandra Harrilal, et al v. Steve Magner, et al


Dear Sirs:

A published opinion was filed today in the above case.

Counsel who presented argument on behalf of appellants Gallagher, Collins and Dadders
was Matthew Allen Engel, of St. Paul, MN. John R. Shoemaker of Bloomington, MN presented
argument on behalf of appellants Steinhauser, Meysembourg, Johnson and Harrilal.

Counsel who presented argument on behalf of the appellee was Louise Toscano Seeba, of
St. Paul, MN.

The judge who heard the case in the district court was Honorable Joan N. Ericksen. The
judgment of the district court was entered on December 19, 2008 in case No.s 09-1209 and 091528,
and on January 30, 2009, in case No. 09-1579.

If you have any questions concerning this case, please call this office.

Michael E. Gans
Clerk of Court

CMD

Enclosure(s)

cc:
Lois Law
MO Lawyers Weekly
District Court/Agency Case Number(s):
0:05-CV-01348-JNE
0:04-cv-02632-JNE



Appellate Case: 09-1209 Page: 2 Date Filed: 09/01/2010 Entry ID: 3699349

0:05-cv-00461-JNE


Appellate Case: 09-1209 Page: 1 Date Filed: 09/01/2010 Entry ID: 3699349

United States Court of Appeals

For The Eighth Circuit

Thomas F. Eagleton U.S. Courthouse
111 South 10th Street, Room 24.329

St. Louis, Missouri 63102

VOICE (314) 244-2400

Michael E. Gans

FAX (314) 244-2780

Clerk of Court

www.ca8.uscourts.gov

September 01, 2010

Mr. Matthew Allen Engel
AASE & KIRSCHER
180 E. Fifth Street
Suite 255
St. Paul, MN 55101-0000

Mr. John R. Shoemaker
SHOEMAKER & SHOEMAKER, PLLC
7900 International Drive
International Plaza, Suite 200
Bloomington, MN 55425

RE:
09-1209 Thomas J. Gallagher, et al v. Steve Magner, et al
09-1528 Frank Steinhauser, III, et al v. City of St. Paul, etc., et al
09-1579 Sandra Harrilal, et al v. Steve Magner, et al


Dear Counsel:

The court has issued an opinion in this case. Judgment has been entered in accordance
with the opinion. The opinion will be released to the public at 10:00a.m. today. Please hold the
opinion in confidence until that time.

Please review Federal Rules of Appellate Procedure and the Eighth Circuit Rules on post-
submission procedure to ensure that any contemplated filing is timely and in compliance with the
rules. Note particularly that petitions for rehearing and petitions for rehearing en banc must be
received in the clerk's office within 14 days of the date of the entry of judgment. Counsel-filed
petitions must be filed electronically in CM/ECF. Paper copies are not required. No grace period
for mailing is allowed, and the date of the postmark is irrelevant for pro-se-filed petitions. Any
petition for rehearing or petition for rehearing en banc which is not received within the 14 day
period for filing permitted by FRAP 40 may be denied as untimely.

Michael E. Gans
Clerk of Court

CMD

Enclosure(s)

cc:
Ms. Louise Toscano Seeba
Mr. Richard Sletten

Appellate Case: 09-1209 Page: 2 Date Filed: 09/01/2010 Entry ID: 3699349

Ms. Bee Vue

Mr. Lamena Vue

District Court/Agency Case Number(s):
0:05-CV-01348-JNE
0:04-cv-02632-JNE
0:05-cv-00461-JNE