0:25-cv-03686•McCoy v. Marshall et al
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1 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Gregory Lynn McCoy, Plaintiff, v. Jeff Marshall, Deputy; Darrin Zastera, Deputy; and Hennepin County Sheriff Department, sued in their individual and official capacities, Defendants. Case No. 25-CV-3686-JWB-EMB REPORT AND RECOMMENDATION Plaintiff Gregory Lynn McCoy was found guilty after a trial in this District on one count of being a felon in possession of a firearm. See generally United States v. McCoy (“McCoy”), No. 20-CR-0150-NEB-BRT (D. Minn.). One of the issues litigated in that case concerned whether Defendants Jeff Marshall and Darrin Zastera had probable cause to conduct a search of McCoy’s vehicle. McCoy was arrested at his home in October 2019. Unbeknownst to McCoy, officers watched that day as he drove up to his house in a red Dodge Durango. Officers later entered the house, where they saw McCoy throw “a baggie of suspected Cocaine,” which later field tested positive for cocaine. After the officers found the suspected drugs, Deputy Zastera used his “NPCA Certified K9 partner Buck” to sniff test McCoy’s car. Buck alerted to the passenger‐side door of the car. Officers then towed McCoy’s car and sought a search warrant for the vehicle. McCoy, Dkt. No. 246 at 1–2 (D. Minn. May 2, 2022) (citations and footnotes removed). The search warrant was granted, and a pistol and ammunition were CASE 0:25-cv-03686-JWB-EMB Doc. 9 Filed 11/13/25 Page 1 of 8
2 found in the car, leading to the conviction described above. (See Complaint, Dkt No. 1 at ¶ 15.) According to McCoy, Marshall lied in the application for the search warrant when he stated that “K9 Buck is NPCA certified to detect the odor of narcotics.” (McCoy, Dkt. No. 244-1 at 3 (application for search warrant). McCoy contended during his criminal proceedings, and he contends again in this case, that this statement was false. The government produced a document dated July 1, 2019—prior to the search at issue—showing that Buck had been certified by the NPCA (that is, the National Police Canine Association) to detect cocaine, methamphetamine, and heroin. (See Compl., Pl. Ex. at 3, Dkt. No. 1-1.) The government did not produce training records for the dog prior to the certification. McCoy argues that the lack of production of training records prior to Buck’s certification suggests either that the certification never occurred and that the document was fabricated after the fact or that the certification was procured under false pretenses (because Buck had been insufficiently trained) and that the NPCA should not have issued it. In either case, argues McCoy, the statement in the search warrant application that “K9 Buck is NPCA certified to detect the odor of narcotics” was false. Based on those allegations, McCoy brings three groups of claims. First, McCoy contends that the allegedly false statement led to his car being “illegally searched, seized and sold in violation of the 4th Amendment to the Constitution.” (Compl. at 4.) Second, McCoy contends that Marshall’s representation is punishable CASE 0:25-cv-03686-JWB-EMB Doc. 9 Filed 11/13/25 Page 2 of 8
3 under 18 U.S.C. § 1001. (Compl. at 5.) Third, McCoy contends that the defendants violated Minnesota state law in various respects. (Compl. at 5–6.) Because McCoy is a prisoner, his complaint is subject to preservice review under 28 U.S.C. § 1915A. Pursuant to this provision, “the court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” On such review: the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint— (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). In reviewing whether a complaint states a claim on which relief may be granted, the Court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor. Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th Cir. 2008). Although the factual allegations in the complaint need not be detailed, they must be sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must “state a claim to relief that is plausible on its face.” Id. at 570. In assessing the sufficiency of the complaint, the court may disregard legal conclusions that are couched as factual allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Pro se complaints are to be construed liberally, but they still CASE 0:25-cv-03686-JWB-EMB Doc. 9 Filed 11/13/25 Page 3 of 8
4 must allege sufficient facts to support the claims advanced. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). As McCoy was previously warned,1 each of his claims has substantial problems. First, as McCoy himself acknowledges, “[t]he federal district court and court of appeals have both determined that even without the K9 sniff there was probable cause for the search warrant.”2 (Compl. at 6, ¶ 38.) Buck’s certification (or lack thereof) is therefore irrelevant to whether the search and subsequent seizure of McCoy’s vehicle was lawful. Regardless of the veracity of the statement made in the application for the search warrant, officers would have had probable cause to search the vehicle. And because probable cause existed to search the vehicle, the search conducted by officers did not violate McCoy’s federal constitutional rights, contrary to McCoy’s claims. But there is another problem: Not only has the issue of whether probable cause absent the K9 sniff been litigated already, but the issue of whether the statement, “K9 Buck is NPCA certified to detect the odor of narcotics,” is false has 1 McCoy has asked that the undersigned recuse from this proceeding for having warned him that his claims are flawed and that he should consider whether to commit his money towards the prosecution of this action. (See Motion, Dkt. No. 7.) By separate order, that motion for recusal has been denied. (See Order, Dkt. No. 8.) 2 McCoy is attempting to thread a very thin needle. As McCoy acknowledges, he cannot challenge the validity of his conviction through a lawsuit under § 1983 under Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). (See Compl. at 6.) Thus, McCoy cannot argue that there was no lawful basis upon which the gun could have been discovered, as this would call into question the validity of his conviction in violation of Heck. But if McCoy concedes that there was probable cause for issuance of a search warrant, then his unlawful-search claim in this lawsuit necessarily fails, for the reasons above. CASE 0:25-cv-03686-JWB-EMB Doc. 9 Filed 11/13/25 Page 4 of 8
5 also been litigated already. McCoy lost on this latter issue in his criminal proceeding as well. See McCoy, Dkt. No. 246, Dkt. No. 4–5. The Court previously found that “the certification shows that Deputy Marshall’s statement [in the search warrant affidavit] that Buck was certified is true.” Id. at 5 (emphasis in original). “The . . . doctrine of issue preclusion ordinarily bars relitigation of an issue of fact or law raised and necessarily resolved by a prior judgment.” Bravo-Fernandez v. United States, 580 U.S. 5, 10 (2016). McCoy had a full and fair opportunity to litigate both the issue of whether the application of a search warrant contained a false statement and the issue of whether probable cause existed for issuance of a search warrant absent the statement that Buck was NPCA-certified. He lost on both issues. He cannot relitigate those issues under the guise of a lawsuit under § 1983. Count One of the complaint should therefore be dismissed with prejudice. Count Two of the complaint, which alleges that the application for a search warrant included false statements made in violation of § 1001, also should be dismissed with prejudice. As just discussed, the issue of whether the statement was false has already been fully litigated and cannot be litigated again. But Count Two also fails for an even more fundamental reason: Section 1001 does not include a private right of action. See, e.g., Lee v. United States Agency for Int’l Dev., 859 F.3d 74, 78 (D.C. Cir. 2017); Horde v. Elliot, No. 17-CV-0800-WMW-SER, 2018 WL 987683, at *17 (D. Minn. Jan. 9, 2018) (collecting cases). This leaves only McCoy’s state-law claims, raised in Count Three of the Complaint. These questions do not present a federal question of law. Therefore, 28 CASE 0:25-cv-03686-JWB-EMB Doc. 9 Filed 11/13/25 Page 5 of 8
6 U.S.C. § 1331 does not supply original jurisdiction over those claims. McCoy does not allege that the parties are of diverse citizenship,3 and therefore 28 U.S.C. § 1332(a) does not supply jurisdiction over the claims, either. And because McCoy’s federal-law claims must be dismissed at the outset of this action, the Court should not extend supplemental jurisdiction over these claims. See 28 U.S.C. § 1367(c)(3); Hervey v. County of Koochiching, 527 F.3d 711, 726–27 (8th Cir. 2008). Count Three of the complaint should be dismissed without prejudice for lack of jurisdiction. Counts One and Two of the complaint, by contrast, should be dismissed with prejudice pursuant to § 1915(e)(2)(B), as the Court has jurisdiction over these claims and McCoy cannot amend his complaint to salvage them. See Pet Quarters, Inc. v. Depository Trust and Clearing Corp., 559 F.3d 772, 782 (8th Cir. 2009) (dismissal with prejudice appropriate when amendment futile); Brown v. Ark. Dep’t of Human Services, 452 F. App’x 690, 692–93 (8th Cir. 2011) (per curiam) (same). Because McCoy is a prisoner, he must pay the unpaid balance of the statutory filing fee for this action in the manner prescribed by 28 U.S.C. § 1915(b)(2). The Clerk of Court should be directed to provide notice of this requirement to the authorities at the institution where McCoy is confined. Finally, McCoy’s motion for appointment of counsel (Dkt. No. 4) should be denied. Appointment of counsel is unlikely to materially benefit either McCoy or the 3 Although McCoy is currently incarcerated at a prison in Michigan, he is likely a citizen of Minnesota for purposes of 28 U.S.C. § 1332(a). See Jones v. Hadican, 552 F.2d 249, 250–51 (8th Cir. 1997). CASE 0:25-cv-03686-JWB-EMB Doc. 9 Filed 11/13/25 Page 6 of 8
7 Court. See Patterson v. Kelley, 902 F.3d 845, 851 (8th Cir. 2018); Ward v. Smith, 721 F.3d 940, 942–43 (8th Cir. 2013). RECOMMENDATION Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED THAT: 1. This matter be DISMISSED as follows: a. Counts One and Two of the complaint be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B). b. Count Three of the Complaint be DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. 2. McCoy’s application to proceed in forma pauperis (Dkt. No. 2) be DENIED. 3. McCoy’s motion to appoint counsel (Dkt. No. 4) be DENIED. 4. McCoy be directed to pay the unpaid balance ($326.17) of the statutory filing fee for this action in the manner prescribed by 28 U.S.C. § 1915(b)(2), and the Clerk of Court be directed to provide notice of this requirement to the authorities at the institution where McCoy is confined. Dated: November 13, 2025 Elsa M. Bullard______________________ Elsa M. Bullard United States Magistrate Judge CASE 0:25-cv-03686-JWB-EMB Doc. 9 Filed 11/13/25 Page 7 of 8
8 NOTICE Filing Objections: This Report and Recommendation is not an order or judgment of the District Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals. Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a magistrate judge’s proposed finding and recommendations within 14 days after being served a copy” of the Report and Recommendation. A party may respond to those objections within 14 days after being served a copy of the objections. See Local Rule 72.2(b)(2). All objections and responses must comply with the word or line limits set forth in Local Rule 72.2(c). CASE 0:25-cv-03686-JWB-EMB Doc. 9 Filed 11/13/25 Page 8 of 8
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