                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-1791
                                   ___________

Tory Worum Lund,                         *
                                         *
             Plaintiff - Appellant,      *
                                         *
      v.                                 *
                                         * Appeal from the United States
Hennepin County; Patrick D.              * District Court for the District of
McGowan, Sheriff; Michele Smolley, * Minnesota.
Chief Deputy; Thomas Merkel,             *
Inspector; Richard Estensen, Former      *
Inspector, officially and individually, *
                                         *
             Defendants - Appellees.     *
                                    ___________

                             Submitted: September 16, 2005
                                 Filed: November 4, 2005
                                 ___________

Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

      Tory Worum Lund brought this action under 42 U.S.C. §1983 against
Hennepin County, Sheriff Patrick D. McGowan, and several other officers in his
department, alleging that the delay in Lund's release from the Adult Detention Center
(ADC) due to its outprocessing procedures violated his due process rights and state
law. The district court1 granted summary judgment to the defendants and Lund
appeals, arguing that he has produced sufficient evidence to warrant a jury trial. We
affirm.

      Lund was arrested in Richfield early in the morning on September 26, 2001 and
was booked into the ADC on probable cause for second degree driving while
intoxicated, a gross misdemeanor under Minnesota law. At a court hearing on
September 28 the presiding judge continued the case to permit Lund to obtain
counsel, ordered that no bail was required, and told Lund that he would be going
home. Lund was taken back to the ADC and later released. He claims he was not
released until 1:10 a.m. on September 29, twelve hours after the judge had ruled that
no bail was needed. Appellees maintain that he was released several hours earlier,
at approximately 9:30 p.m. on September 28, but for purposes of our review we
accept Lund’s version of the disputed facts. Turner v. Honeywell Fed. Mfg. &
Techs., LLC, 336 F.3d 716, 719-20 (8th Cir. 2003).

       Official county policy states that release from the ADC should proceed "as
expeditiously as possible" consistent with the need to maintain security, but there are
standard procedures and paperwork required before an individual is released. These
include a computer search for any new warrants or detainers that may have been
issued after the individual was originally booked, preparation and service of "release
citations" informing inmates of their next court appearance, location and return of
money and personal effects to inmates, verification of identity, and review of all
release paperwork for error. At the same time the ADC staff is responsible for
processing incoming inmates and detainees on their way to and from court or other
locations. The staff must also answer telephone inquiries, count the inmate
population three times daily, and deal with uncooperative arrestees. ADC records for


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.

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September 28 indicate that the number of inmates booked and the number released
on that day were average to slightly above average.

        Lund brought this action against the county, Sheriff McGowan, and other
members of his department, alleging that the period of detention following his
hearing violated his Fourteenth Amendment right to due process, giving rise to
liability under §1983; violated his rights under Article I, § 10 of the Minnesota
Constitution; and amounted to false imprisonment under state law. He subsequently
agreed to the voluntary dismissal of all defendants except for the county and Sheriff
McGowan in his official capacity (collectively the County). The County moved for
summary judgment, and the district court granted the motion, holding as a matter of
law that Lund had not alleged facts sufficient to meet the deliberate indifference
standard for municipal liability under §1983. The district court also dismissed Lund's
state constitutional claim since no private right of action had been recognized under
the cited provision, and it concluded that the statute of limitations had run on his false
imprisonment claim. Lund appeals only the dismissal of his §1983 claim.

       We review the district court's grant of summary judgment de novo. Lee v.
State of Minn., Dept. of Commerce, 157 F.3d 1130, 1133 (8th Cir. 1998). Summary
judgment is proper only if there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Krenik v. County of Le Sueur, 47
F.3d 953, 957 (8th Cir. 1995).

       Section 1983 imposes civil liability on any person who, “under color of any
statute, ordinance, regulation, custom or usage of any State," deprives an individual
of "any rights, privileges, or immunities" secured by the United States Constitution.
To survive summary judgment, a claim under §1983 must raise a genuine issue of
material fact as to whether 1) the defendant acted under color of state law, and 2) the
alleged wrongful conduct deprived plaintiff of a constitutionally protected right.
Cooksey v. Boyer, 289 F.3d 513, 515 (8th Cir. 2002). In order to make out a case of

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municipal liability against the County, Lund must show that his constitutional injury
was caused by a policy or custom of the municipality, the implementation of which
amounted to deliberate indifference to his constitutional rights. City of Canton v.
Harris, 489 U.S. 378, 388-91 (1989); See also Monell v. Department of Social
Services of the City of New York, 436 U.S. 658, 690-91 (1978).

       Lund argues that deliberate indifference is the applicable standard governing
not only the issue of municipal liability, but also the issue of whether his detention
violated due process. He contends in addition that the issue of deliberate indifference
is a question of fact, Davis v. Hall, 375 F.3d 703, 719 (8th Cir. 2004), and that his
post hearing detention with the County's knowledge thus raised material issues of
fact. To support his argument that deliberate indifference is the standard controlling
his due process issue he cites to County of Sacramento v. Lewis, 523 U.S. 833, 851,
853 (1998), where the Supreme Court noted that in a prison setting the state has
heightened obligations for the welfare of those whom it incarcerates and must
consequently behave with greater care than in other contexts. Lund also relies on
Berry v. Baca, 379 F.3d 764, 766, 772 (9th Cir. 2004), to argue that deliberate
indifference is ultimately a question of reasonableness. Berry was a due process case
in which the Ninth Circuit reversed a judgment against inmates whose release had
been delayed for up to twenty nine hours by outprocessing, apparently following the
test used in Lewis v. O’Grady, 853 F.2d 1366, 1370 (7th Cir. 1988). Lewis was a
case involving a detainee held on a mistaken arrest warrant (unlike Lund who was
arrested with probable cause) and thus decided under the Fourth Amendment rather
than the due process clause.

       Lund's argument essentially collapses the tests for liability under §1983 for due
process violations and for municipal liability, and the County maintains in contrast
that the question of whether a due process violation occurred is distinct from whether
there was deliberate indifference. It argues that the due process question requires an
objective assessment of whether a defendant’s conduct “shocks the conscience.”

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Hayes v. Faulkner County, 388 F.3d 669, 674 (8th Cir. 2004). A twelve hour
detention standing alone can never meet that standard, it says. It argues that the
question of deliberate indifference is different from mere unreasonableness, for the
issue requires a showing that the policy or custom evidencing deliberate indifference
was the “moving force” behind a constitutional injury. Harris, 489 U.S. at 389. The
County argues that since Lund has failed to show any causal link between his
detention and one of its policies or customs, there are no grounds for municipal
liability even if there were a due process violation.

       It is well settled under our precedents that establishing a violation of due
process as a basis for municipal liability under §1983 requires plaintiff to show more
than mere negligence or unreasonableness; a plaintiff must point to conduct by the
municipality, or by employees acting with its knowledge, that shocks the conscience
given the totality of the circumstances. Hayes 388 F.3d at 674; Davis, 375 F.3d at
718; see also Young v. City of Little Rock, 249 F.3d 730, 734-36 (8th Cir. 2001).
These illustrative cases all involved a delay in the release of pretrial detainees, and
the plaintiffs in them all satisfied the constitutional tests. The plaintiff in Davis was
held by prison officials over his repeated protests for fifty seven days after a court had
ordered his immediate release. 375 F.3d at 706-07. The detainee in Hayes had been
arrested and held for thirty nine days before a first appearance in court. 388 F.3d at
672. After a court ordered the release of the wrongfully arrested plaintiff in Young,
she was detained for several more hours, chained to other prisoners in public, and
strip searched; her claim was thus analyzed under the Fourth Amendment as well as
the due process clause. 249 F.3d at 732-33. In each of these cases we concluded that
the fact finder could reasonably find that the plaintiff’s due process rights had been
violated and that deliberate indifference, the “requisite level of culpability” for
municipal liability, had been shown. Davis, 375 F.3d at 719; see also Hayes, 388
F.3d at 673; Young, 249 F.3d at 736.




                                           -5-
       In the course of this year we have already decided three other §1983 cases
attacking the outprocessing procedures at the ADC, all brought by the same law firm.
Russell v. Hennepin County, 420 F.3d 841(8th Cir. 2005); Golberg v. Hennepin
County, 417 F.3d 808 (8th Cir. 2005); Luckes v. Hennepin County, 415 F.3d 936 (8th
Cir. 2005). These prior cases were decided by different panels of our court within a
short period of time. None of the decisions mentioned the others, but each panel
concluded with somewhat different reasoning that there had not been a sufficient
showing to survive summary judgment.

       The plaintiff in Luckes, the first of these decisions, had been arrested because
of unpaid traffic tickets. After being told that he would be released "shortly after
booking," he was detained for a period of twenty four hours in a crowded holding cell
with more violent offenders who threatened and intimidated him. He initially
grounded his constitutional argument on the Fourth Amendment, claiming that his
detention had been an unreasonable seizure. The panel concluded that this argument
had no merit because the plaintiff had been arrested under a valid warrant and with
probable cause. 415 F.3d at 937-38, 939. His claim was "more properly analyzed"
under the due process clause of the Fourteenth Amendment, and the relevant question
was whether defendants' conduct shocked the conscience under the totality of the
circumstances. Id. at 939; see also Hayes, 388 F.3d at 674. The panel concluded that
the evidence did not meet this test. Since there was no underlying constitutional
violation, there could be no liability under §1983 even if the plaintiff could show an
issue of material fact as to whether the county was deliberately indifferent to his
liberty interest in being free from detention. 415 F.3d at 940.

       In Golberg, the plaintiff's release from the ADC after posting bail was delayed
for ten hours because of problems with a new computerized jail management system.
The panel rejected the plaintiff's assertion that her detention was an unlawful seizure
under the Fourth Amendment because she was being held pursuant to a valid warrant,
and focused instead on whether the county had been deliberately indifferent to her

                                         -6-
due process rights. 417 F.3d at 810-811. The court noted that deliberate indifferent
requires more than mere unreasonableness, namely conduct that is so knowingly
hostile or indifferent to a clearly established constitutional right that it evidences a
level of "criminal recklessness." Id. at 812. Detentions such as hers have been found
to be permissible in a variety of situations, and her mere showing that the detention
took place as a result of county policy was not sufficient to establish municipal
liability. Id. at 812-13.

       Finally in Russell, the plaintiff's conditional release was delayed for six days
because of an administrative error. As in Golberg, the panel did not reach the
constitutional issue, instead finding that the facts were insufficient to show that the
moving force behind plaintiff's detention was a county policy whose inadequacy was
"both obvious and likely to result in the alleged deprivation of constitutional rights"
or that there was a widespread informal custom having substantially the same effect.
420 F.3d at 845, 847. Judge Heaney dissented, arguing that the plaintiff had shown
an injury resulting from the absence of an adequate affirmative policy regarding
conditional releases and had made out both a due process violation and a showing of
deliberate indifference. Id. at 850-51.

       As our cases teach, in order for Lund to prove his due process rights were
violated and that the County should be held responsible, he must show both that his
detention shocks the conscience and that it was caused by a county policy or custom
evidencing a level of culpability akin to criminal recklessness. His reliance on
County of Sacramento, Berry, and Lewis to avoid these evidentiary burdens in favor
of something like a Fourth Amendment reasonableness test is misplaced. Nowhere
in County of Sacramento does the Court even hint that such a standard would apply
to pretrial custody situations following a valid arrest. Decisions like Berry, 379 F.3d
at 769, are inconsistent with our controlling precedents. See County of Sacramento,
523 U.S. at 846-850 (applying the conscience shocking test to alleged violation of
due process); Davis, 375 F.3d at 718.

                                          -7-
        Lund's claim is that the County's outprocessing procedures delayed his release
for twelve hours with the knowledge of the County and its officials. He has not
alleged that the County refused or failed to investigate claims that he should be
released or subjected him to any other mistreatment at the hands of the ADC staff or
his fellow inmates. Nor has he shown any pattern of official tolerance by the County
concerning delays in release, and the County has described in detail the reasons for
its procedures, a number of which are mandated by state law. There is no evidence
that the treatment Lund received was sufficiently conscience shocking so as to give
rise to a due process violation or that it resulted from the sort of intentionally harmful
or reckless conduct needed for a showing of deliberate indifference.

       Because Lund has not alleged facts sufficient to show that his due process
rights were violated or that the County was deliberately indifferent to such a
violation, the district court did not err by granting summary judgment. The judgment
is accordingly affirmed.

                       _______________________________




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