Plaintiff Michelle MacDonald Shimota, Thomas G. Shimota v.s Defendant Bob Wegner, Christopher Melton, Dakota County, Daniel Fluegel, Fluegel Law Firm, P.A., Jane Does 1-10, John 1-10 Does, Jon Napper, Timothy Gonder
Retention: On November 25, 2016, I was retained by attorney Mr. Michael Padden on behalf of the plaintiffs. I was asked to review the documents and render expert opinions about the this case. Primary opinions: Based on my understanding and my review of the listed materials, my primary opinions are:
Opinion #1:
Deputy Gondor and Sergeant Melton had the capacity to issue a citation to the plaintiff instead of bringing her to jail where she spent the night.
Because there was sufficient information available to issue the plaintiff a citation and because there was also the likely ability to forgo the citation process entirely and simply seek a criminal charge via the filing of a police report, in all probability it was the intended aim of Deputy Gondor and Sergeant Melton to keep the plaintiff in custody.
Keeping the plaintiff in jail when she could have been released on a citation was unreasonable, unnecessary and below the profession standard of care expected of a professionally trained, reasonable deputy and sergeant. Police and Jail Procedures, Inc. Richard Lichten, CLS MacDonald, et al, v. Dakota County, et all. Civil No. 0:15-cv-01590-JRT-JJK (Minnesota) Expert report by Richard Lichten, CLS, dated January 16, 2017. CASE 0:15-cv-01590-JRT-KMM Document 103-1 Filed 03/02/17 Page 4-5 of 30
Case Number: 19HA-CR-13-2934
Citation Number: 190000001505 190000001505
Defendant Info: MacDonald Shimota, Michelle 11/05/1961
Filed/Location/Judicial Officer: 09/13/2013 Dakota-Hastings - Criminal/Traffic/Petty Metzen, Leslie May
Type/Status: Crim/Traf Mandatory Closed
Charge(s): Contempt of Court - Willful Disobedience to Court Mandate, Obstruct Legal Process-Lawful Execution Legal Process
Disposition/Level of Sentence: Dismissed, Dismissed
Register of Actions
Case No. 19HA-CR-13-2934 State of Minnesota vs Michelle MacDonald Shimota
DISPOSITIONS 04/04/2014 Disposition (Judicial Officer: Metzen, Leslie May)
1. Contempt of Court - Willful Disobedience to Court Mandate Dismissed
2. Obstruct Legal Process-Lawful Execution Legal Process Dismissed
OTHER EVENTS AND HEARINGS
09/13/2013 Citation
Correctional Deputy Dillard and Corporal Byrd had the capability to issue a citation to the plaintiff instead of keeping her in jail.
Because there was sufficient information available to issue the plaintiff a citation in all probability it was the intended aim of the Correctional Deputy Dillard, Corporal Byrd, and possibly other jail staff to keep the plaintiff in custody.
Keeping the plaintiff in jail when she could have been released on a citation was unreasonable, unnecessary and below the profession standard of care expected of a professionally trained, reasonable correctional deputies and corporal. Police and Jail Procedures, Inc. Richard Lichten, CLS MacDonald, et al, v. Dakota County, et all. Civil No. 0:15-cv-01590-JRT-JJK (Minnesota) Expert report by Richard Lichten, CLS, dated January 16, 2017. CASE 0:15-cv-01590-JRT-KMM Document 103-1 Filed 03/02/17 Page 5 of 30
Unless there are objective reasons why the plaintiff’s roll of toilet paper, mattress, and possibly her pillow were taken away; and unless there are objective reasons why the plaintiff was not given a blanket then the plaintiff’s treatment in jail would be unreasonable, unnecessary and below the profession standard of care expected of a professionally trained, reasonable deputy. Police and Jail Procedures, Inc. Richard Lichten, CLS MacDonald, et al, v. Dakota County, et all. Civil No. 0:15-cv-01590-JRT-JJK (Minnesota) Expert report by Richard Lichten, CLS, dated January 16, 2017. CASE 0:15-cv-01590-JRT-KMM Document 103-1 Filed 03/02/17 Page 5 of 30
Since the plaintiff was photographed and fingerprinted and since her identity was known to the jail staff at intake, coupled with the act that the plaintiff was issued a booking number and Jacket ID number, there was no reason not to allow the plaintiff access to a telephone to called her lover ones and arrange bail or bond.
Not allowing access to a telephone in this case was unreasonable, unnecessary and below the profession standard of care when a prisoner processes into a jail. Police and Jail Procedures, Inc. Richard Lichten, CLS MacDonald, et al, v. Dakota County, et all. Civil No. 0:15-cv-01590-JRT-JJK (Minnesota) Expert report by Richard Lichten, CLS, dated January 16, 2017. CASE 0:15-cv-01590-JRT-KMM Document 103-1 Filed 03/02/17 Page 5-6 of 30
Unless there are objective reasons why the plaintiff could not be released from the courtroom at the time the judge ordered her released, then bringing her back to the jail and keeping her in custody for hours before finally being released would be unreasonable, unnecessary and below the profession standard of care expected of professionally trained,. reasonable deputies. Police and Jail Procedures, Inc. Richard Lichten, CLS MacDonald, et al, v. Dakota County, et all. Civil No. 0:15-cv-01590-JRT-JJK (Minnesota) Expert report by Richard Lichten, CLS, dated January 16, 2017. CASE 0:15-cv-01590-JRT-KMM Document 103-1 Filed 03/02/17 Page 6 of 30
If the Dakota County Jail must follow the United States Department of Justice Prison Rape Elimination Act, or what is commonly called PREA, then the jail is in violation of the PREA rules as there is no evidence the plaintiff was assessed or educated about PREA at her intake. Police and Jail Procedures, Inc. Richard Lichten, CLS MacDonald, et al, v. Dakota County, et all. Civil No. 0:15-cv-01590-JRT-JJK (Minnesota) Expert report by Richard Lichten, CLS, dated January 16, 2017. CASE 0:15-cv-01590-JRT-KMM Document 103-1 Filed 03/02/17 Page 6 of 30
55. It is best practice that if the stated goal of reasonable deputies is to cite out the arrestee, then once professionally trained deputies obtain the minimally needed information to issue a citation rather than keep a citable person in jail, they would issue a citation.
56. Reasonable deputies know when the needed citation information is obtained is not always necessary to have the person to be cited answer questions and verbally concur with the information obtained by the reasonable deputy.
56.1 Reasonable deputies also know that if the person to be cited refuses to sign the citation, then reasonable deputies would have cause to keep the person in custody until the person can appear in court. Police and Jail Procedures, Inc. Richard Lichten, CLS MacDonald, et al, v. Dakota County, et all. Civil No. 0:15-cv-01590-JRT-JJK (Minnesota) Expert report by Richard Lichten, CLS, dated January 16, 2017. CASE 0:15-cv-01590-JRT-KMM Document 103-1 Filed 03/02/17 Page 21 of 30
The plaintiff if positively identified, yet was still not released on a citation:
58. According to the report by Correctional Deputy S. Dillard, item 2, bates DC-42, the plaintiff was escorted to the jail at 1515 hours by Deputy Gonder.
59. The report showed the plaintiff’s name and date of birth was known before the plaintiff was fingerprinted.
59.1 This means that the identification of the plaintiff was known before she was taken to the jail. If that was the case, then the plaintiff ought to have been issued a citation and released at the courthouse and not taken to the jail in the first place.
60. According to this report, Deputy Gondor told Correctional Deputy S. Dillard that the plaintiff was “passive aggressive.”
61. This report states that once at the intake area of the jail the plaintiff refused to respond to questions and refused to give “proper identification.”
62. Correctional Deputy S. Dillard wrote in this report that, “Deputy Hoover #213 was able to obtain both index prints on the IBIS Machine to obtain a positive identification on MacDonald.” If that was the case, then the plaintiff ought to have been issued a citation and released immediately an not kept in jail.
63. The plaintiff contends she was not allowed the opportunity to be released on bond or bail. Since the identification of the plaintiff was known, there was no reason to not allow the plaintiff the opportunity to arrange bond or bail.
64. I know from my background and experience that keeping the plaintiff in jail when she could have and should have been cited out or allowed to arrange bail or bond, was unreasonable, unnecessary, and below the professional standard of care expected of a professionally trained, reasonable, correctional supervisor (Corporal Byrd was present during the intake process.)
65. The plaintiff’s property was taken from her at the jail which is standard procedure and her property was listed on a property form which is also standard procedure. What is important to note is that the plaintiff’s identification (name, DOB, and DL) is shown on this property form along with a booking number and jacket id number which indicates the plaintiff had been identified and booked at the jail. Item 13. Police and Jail Procedures, Inc. Richard Lichten, CLS MacDonald, et al, v. Dakota County, et all. Civil No. 0:15-cv-01590-JRT-JJK (Minnesota) Expert report by Richard Lichten, CLS, dated January 16, 2017. CASE 0:15-cv-01590-JRT-KMM Document 103-1 Filed 03/02/17 Page 21-22 of 30
66. The report written by Deputy Dillard, item 2, states that Corporal Byrd told the plaintiff that she would not be able to make a telephone call until after she was booked. The plaintiff contends that since she was never booked, she was not permitted to make a telephone call.
67. Since plaintiff’s identity was known and since she was fingerprinted and photographed, and since the plaintiff had her booking number assigned to her (see the Inmate Property form, item 13) the plaintiff should have and could have been released on a citation, there was no justification not to allow her use of a telephone.
67.1 Once a prisoner is photographed and fingerprinted, once their identity is known, and once they have an official booing number assigned then based on my background and experience in booking prisoners, I know that reasonable deputies would have considered plaintiff booked for all intents and purposes.
67.2 Not allowing a newly arrived prisoner access to a telephone, especially if the identity of the person is known, as in this case, is below the standard of care of professional trained, reasonable correctional deputy.
68. Hypothetically, if a person is brought to jail and for whatever the reason refuses to speak or physically cannot speak and there is no way to ascertain the true identity of the person so the person is booked as a John/Jane Doe, does this mean this person is never allowed to use a telephone at anytime? Of course not. Police and Jail Procedures, Inc. Richard Lichten, CLS MacDonald, et al, v. Dakota County, et all. Civil No. 0:15-cv-01590-JRT-JJK (Minnesota) Expert report by Richard Lichten, CLS, dated January 16, 2017. CASE 0:15-cv-01590-JRT-KMM Document 103-1 Filed 03/02/17 Page 22-23 of 30
74. If the Dakota County Jail accepts federal funding, then the jail must follow the rules under the United States Department of Justice, Prison Rape Elimination Act or what is commonly called PREA. If the jail is mandated to follow PREA, then under section 115.33, Inmate Education, the plaintiff would have received information explaining the agency’s zero-tolerance policy abut sexual abuse, etc. at intake. In addition, the plaintiff would have been assessed at intake for risk of sexual assault under 115. 41.
74.1 If the jail must follow PREA, then they are in violation of the PREA rules as there is no evidence the plaintiff was assessed or educated about PREA. Police and Jail Procedures, Inc. Richard Lichten, CLS MacDonald, et al, v. Dakota County, et all. Civil No. 0:15-cv-01590-JRT-JJK (Minnesota) Expert report by Richard Lichten, CLS, dated January 16, 2017. CASE 0:15-cv-01590-JRT-KMM Document 103-1 Filed 03/02/17 Page 24 of 30
75. The evidence show that on September 13, 2013, the plaintiff was brought before Judge Tim Wermager who signed an order to have her released immediately. The plaintiff contends she was brought back to the jail and released hours later.
76. I know from my background and experience that in some case there are policies and procedures that require a prisoner to be released from the jail and not directly from the courthouse.
77. If the Sheriff’s Department has such policies and procedures, I request to see them. Unless there are objective reasons why the plaintiff could not be released from the courtroom, then keeping her in custody for hours before finally being released would be unreasonable, unnecessary, excessive, and below the professional standard of care expected of professionally trained, reasonable deputies. Police and Jail Procedures, Inc. Richard Lichten, CLS MacDonald, et al, v. Dakota County, et all. Civil No. 0:15-cv-01590-JRT-JJK (Minnesota) Expert report by Richard Lichten, CLS, dated January 16, 2017. CASE 0:15-cv-01590-JRT-KMM Document 103-1 Filed 03/02/17 Page 25 of 30
78. If the Dakota County Sheriff’s Department supervisors and managers failed to conduct an objective and thorough Internal Affairs or administrative investigation into any and all policy violations in this case then this tends to reflect a continuing pattern and practice of the Dakota County Sheriff’s Department to excuse the actions of the court deputies and sergeant, the jail staff and jail medical staff involved. The failure of the law enforcement agency to investigate those actions is a ratification of the involved personnel. Police and Jail Procedures, Inc. Richard Lichten, CLS MacDonald, et al, v. Dakota County, et all. Civil No. 0:15-cv-01590-JRT-JJK (Minnesota) Expert report by Richard Lichten, CLS, dated January 16, 2017. CASE 0:15-cv-01590-JRT-KMM Document 103-1 Filed 03/02/17 Page 25 of 30
79. The plaintiff contends she was retaliated against for her criticizing and filing a lawsuit against Judge Knutson.
79.1 I am not opining on this issue. The jury will decide if there was retaliation by not issuing the plaintiff a citation when it was possible to do so and thereby causing the plaintiff to spend the night in jail for a crime of taking a photograph of a deputy inside a courtroom.
80. In my expert opinion, the evidence in this case demonstrates that even though the plaintiff chose not to verbally state her name, name, date of birth, and address, etc. the defendants did have the information needed to issue the citation and release the plaintiff from custody. I’ve seen not evidence to justify keeping the plaintiff in jail since she was certainly citable.
80.1. Keep in mind, the defendants stated many time it was their objective to release the plaintiff on citation.
80.2. Because the plaintiff was not released on citation when she could have been, the stated objective of the defendants is inconsistent with their actions. Police and Jail Procedures, Inc. Richard Lichten, CLS MacDonald, et al, v. Dakota County, et all. Civil No. 0:15-cv-01590-JRT-JJK (Minnesota) Expert report by Richard Lichten, CLS, dated January 16, 2017. CASE 0:15-cv-01590-JRT-KMM Document 103-1 Filed 03/02/17 Page 24 of 30
More to come . . .
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