Bierbrauer v. Zahn

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Brandon Bierbrauer,
Plaintiff,
v.
Dennis Zahn,
Defendant.
Case No. 24-cv-3812 (LMP/DJF)
REPORT AND
RECOMMENDATION
This matter is before the Court on Defendant Dennis Zahn’s Motion for Summary
Judgment (ECF No. 81). Plaintiff Brandon Bierbrauer is an inmate at the Minnesota Correctional
Facility at Stillwater (“MCF-Stillwater”). (See ECF No. 1-2.) During the relevant timeframe,
Dennis Zahn was a Canine Corrections Officer (“CCO”) who responded, along with his canine
partner (“K9 Mercy”), to a physical altercation involving Mr. Bierbrauer and other inmates. (Id.)
Mr. Bierbrauer brings his claims against CO Zahn1 pursuant to 42 U.S.C. § 1983. (See ECF No.
1 at 1.) Mr. Bierbrauer alleges “abuse and harassment”, “personal injury”, and “cruel and unusual
punishment” on the part of CO Zahn as the result of K9 Mercy allegedly attacking Mr. Bierbrauer.
(ECF No. 1 at 2; ECF No. 1-1.) Mr. Bierbrauer does not cite any specific underlying constitutional
provisions in relation to his Section 1983 claims. Construing Mr. Bierbrauer’s claims as falling
under the Eighth Amendment, CO Zahn argues he did not violate Mr. Bierbrauer’s constitutional
rights because he did not use excessive force on Mr. Bierbrauer and did not fail to protect Mr.
Bierbrauer. (ECF No. 81 at 10-17.) CO Zahn further argues he is shielded by qualified immunity
(id. at 17), and that any claims against him in an official capacity should be dismissed because
1 Because Defendant Zahn now has the title “Corrections Officer,” the Court identifies him
as “CO Zahn.”
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injunctive relief would not be appropriate (id. at 20-21). Based on the parties’ written submissions
and on the entire file, the Court recommends CO Zahn’s Motion (ECF No. 81) be granted.
I. BACKGROUND
A. The MNDOC Canine Program
Canine use in the Minnesota Department of Corrections (“MNDOC”) is governed by
MNDOC Policy #301.120. That policy states that the mission of Canine Units is to “enhance
facility security by conducting searches and providing an additional response element for ICS
[Incident Command System] situations” while “minimizing likelihood of injury to staff, visitors,
and offenders.” (ECF No. 84-1 at 1.) MCF-Stillwater received its first canine in 2011. (ECF No.
84 at 2.) The canine program ceased operating at MCF-Stillwater on November 3, 2025 due to
budgetary constraints. (ECF No. 84 at 3.)
When onboarding new canines to the program, MNDOC selects from working breeds and
assesses potential dogs for “temperament and traits, looking for canines that exhibit an ability to
learn new behaviors, obey commands, and demonstrate confidence under a variety of
environmental pressures.” (ECF No. 84 at 3.) Canine handlers in the program are selected for
having “a proven history of exemplary job performance in their duties at [MNDOC]” and
experience working with, training, and caring for dogs. (ECF No. 84 at 4.) Canine handlers must
also demonstrate that they understand MNDOC’s canine policy and MNDOC’s use of force policy
(MNDOC Policy #301.081). (ECF No. 84-1 at 17.)
K9 Mercy has completed all certifications and training required to work in MNDOC
prisons under MNDOC’s canine policy. (ECF No. 84 at 5.) According to Captain Mike Pavlich,
who was in charge of the canine program at MCF-Stillwater, K9 Mercy is “very good at his job”,
is able to remain calm when needed, and responds to CO Zahn’s directives appropriately. (Id.)
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K9 Mercy is a “dual-purpose dog”, trained for narcotics detection and protection and apprehension
duties. (ECF No. 83 at 3.) Captain Pavlich has had no problems or concerns regarding K9 Mercy
and has never conducted a use of force review “that involved K9 Mercy biting or otherwise
apprehending an incarcerated person.” (ECF No. 84 at 5.) K9 Mercy is now “retired” from duty
at MNDOC facilities as a result of MNDOC discontinuing the canine program. (Id. at 5.)
CO Zahn has been employed by MNDOC for over 25 years and became a CCO in 2012.
(ECF No. 83 at 1.) CO Zahn has previously been a member of the “A-Team” and the Special
Operations Response Team at MCF-Lino Lakes, both of which are tasked with responding to
“emergent situations”. (ECF No. 83 at 1.) K9 Mercy was CO Zahn’s third canine partner, and the
two completed a three-month canine academy and a one-month narcotics training. (Id. at 3.)
B. The May 3, 2024 Incident
Mr. Bierbrauer alleges that on May 3, 2024, he was “wrongfully attacked” by CO Zahn’s
canine partner—specifically, that he was bitten on the arm. (ECF No. 1-1 at 1.) Mr. Bierbauer
states that the bite left him with permanent scars and nerve damage. (Id.) Mr. Bierbrauer also
alleges ongoing nightmares and PTSD resulting from the attack. (Id.; ECF No. 1-2 at 4, 5, 6.) Mr.
Bierbrauer states that, following the incident, he filed multiple “kites/grievances” to which he
received “little to zero responses.” (ECF No. 1-1 at 1.) Mr. Bierbrauer claims CO Zahn told him
K9 Mercy was meant to attack one of the other inmates involved in the incident, and further claims
CO Zahn admitted he was “sorry” about the bite and that he “verbally abused” Mr. Bierbrauer.
(Id.)
MNDOC’s account of the May 3, 2025 incident is included in MNDOC Incident Reports
and declarations from Captain Pavlich and CO Zahn. According to MNDOC, around 11:20am on
May 3, Sergeant Staci Stone witnessed Mr. Bierbrauer and another inmate (“Fincher”) fighting on
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the narrow walkways of the third tier of the B-West Unit of MCF-Stillwater. (ECF No. 84 at 5;
ECF No. 1-2 at 1.) Mr. Bierbrauer pulled inmate Fincher into a cell, at which time another inmate,
“Davis” joined the fight. (ECF No. 1-2 at 1.) Mr. Bierbrauer held inmate Fincher while inmate
Davis threw punches at Fincher. (Id.) Seargeant Stone activated the Incident Command System,
which alerted the “A-Team” and other MNDOC staff that there was a fight in the B-West unit.
(ECF No. 84 at 5.) CO Henry Padelford, CO Zahn, and K9 Mercy soon arrived at the scene. (Id.
at 6.) The inmates ignored the COs’ directives to cease fighting, and the COs responded by
spraying a chemical irritant at the inmates. (Id.; ECF No. 1-2 at 1.) MNDOC staff were able to
separate inmate Davis from the altercation and place him in restraints. (ECF No. 84 at 6.) CO
Zahn again instructed Mr. Bierbrauer and inmate Fincher to cease fighting. (Id.) Mr. Bierbrauer
appeared to want to get on the ground to comply, but inmate Fincher prevented him from doing
so. (ECF No. 83 at 4.) Inmate Fincher continued to engage with Mr. Bierbrauer, eventually
shoving him into CO Zahn and K9 Mercy on the narrow tier walkway. (ECF No. 83 at 4; ECF
No. 1-2 at 1.) CO Zahn pulled K9 Mercy back to avoid K9 Mercy contacting Mr. Bierbrauer,
resulting in K9 Mercy’s hind legs and body dangling off the walkway. (ECF No. 83 at 5.) CO
Zahn pulled K9 Mercy back onto the walkway. (ECF No. 84 at 6.) Mr. Bierbrauer then complied
with orders to get down, and MNDOC staff placed him in restraints. (Id. at 6-7.) While Mr.
Bierbrauer was restrained, CO Zahn stood over Mr. Bierbrauer, facing K9 Mercy’s head away
from Mr. Bierbrauer to minimize the risk that K9 Mercy would have unwanted contact with Mr.
Bierbrauer. (Id. at 7.) After the situation calmed down, other staff members escorted Mr.
Bierbrauer to the segregation unit. (ECF No. 83 at 5.)
CO Zahn says he did not see K9 Mercy bite Mr. Bierbrauer and denies giving K9 Mercy
any directive to do so. (Id.) He further states that Mr. Bierbrauer did not mention being bitten at
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any point during or immediately after the incident. (Id.) However, CO Zahn concedes it is possible
K9 Mercy had contact with Mr. Bierbrauer when inmate Fincher shoved Mr. Bierbrauer into CO
Zahn and K9 Mercy. (Id.) Captain Pavlich states that, based on his experience, he “cannot say…
whether any injuries were caused by a dog bite” but that the force employed was appropriate even
if K9 Mercy did bite Mr. Bierbrauer. (Id.) Additional MNDOC officers who were involved in the
incident also prepared Incident Reports. (ECF No. 84-1 at 65-83.) None of the reports indicate
that any officer witnessed K9 Mercy biting Mr. Bierbrauer. (Id.)
A MNDOC Nursing Progress Report indicates that Mr. Bierbrauer was brought to health
services following a fight involving three men, during which a chemical irritant was deployed.
(ECF No. 1-2 at 2.) The report states Mr. Bierbrauer sustained injuries during the fight, including
abrasions and “a few superficial puncture marks from a dog bite” on his right arm and a scratch on
the back of his head that Mr. Bierbrauer stated “was from the dog as well.” (Id.) Mr. Bierbrauer’s
knuckles were also “slightly swollen.” (Id.) Medical staff treated Mr. Bierbrauer for the chemical
exposure and applied bacitracin to the “dog bite areas.” (Id.) It is unclear whether the report
reflects the nurse’s judgment that some of Mr. Bierbrauer’s wounds were consistent with dog bites,
or whether the report merely noted Mr. Bierbrauer’s report regarding the source of his injuries.
However, MNDOC staff also took photos during Mr. Bierbrauer’s treatment, which appear to
show minor puncture wounds and scratches around Mr. Bierbrauer’s elbow and abrasions on the
back of his head. (ECF No. 85 at 1-3.)
C. Procedural History
Mr. Bierbrauer filed his Complaint on October 3, 2024 naming, in addition to CO Zahn,
K9 Mercy, MNDOC, and a number of other MNDOC officers as defendants. (ECF No. 1 at 1.)
The Court dismissed the claims against K9 Mercy, MNDOC, and the other MNDOC officers on
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the ground that K9 Mercy and MNDOC are improper defendants, and Mr. Bierbrauer failed to
plea any fact allegations against the other MNDOC officers. (ECF No. 12, report and
recommendation adopted, ECF No. 20.) The Court issued a scheduling order on May 22, 2025
(ECF No. 52), and following the completion of discovery CO Zahn filed his Motion for Summary
Judgment on November 3, 2025 (ECF No. 81).
II. STANDARD OF REVIEW
On a motion for summary judgment, the Court must view “all evidence and inferences in
the light most favorable to the non-moving party.” Pena v. Kindler, 187 F. Supp. 3d 1070, 1076
(D. Minn. 2016) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Summary
judgment is appropriate when, in this light, “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute is genuine only if the evidence is such that it could cause a reasonable jury to
return a verdict for either party. Pena, 187 F. Supp. at 1076.
The movant “bears the initial responsibility of informing the district court of the basis for
[his] motion,” and must identify “those portions of [the record] ... which [he] believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); see Fed. R. Civ. P. 56(c)(1)(A); Pena, 187 F. Supp. 3d at 1076. If the movant meets that
burden, the nonmovant “may not rest upon allegations, but must produce probative evidence
sufficient to demonstrate a genuine issue for trial.” Davenport v. Univ. of Ark. Bd. of Trustees,
553 F.3d 1110, 1113 (8th Cir. 2009) (citing Anderson, 477 U.S. at 247–49).
Moreover, the nonmovant cannot “create sham issues of fact in an effort to
defeat summary judgment.” Am. Airlines, Inc. v. KLM, 114 F.3d 108, 111 (8th Cir. 1997); see
also Garang v. City of Ames, 2 F.4th 1115, 1122 (8th Cir. 2021). If a party fails to properly address
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another party's assertion of fact as required by Rule 56(c), the Court may: “(1) give an opportunity
to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials—including the facts
considered undisputed—show the movant is entitled to it; or (4) issue any appropriate order.” Fed.
R. Civ. P. 56(e).
Mr. Bierbrauer appears in this matter pro se, and the Court recognizes that his pleadings
must be liberally construed given his lack of legal expertise. See Estelle v. Gamble, 429 U.S. 97,
106 (1976). But the Court nonetheless must apply Rule 56 and its requirements fairly. See Sisney
v. Kaemingk, 886 F.3d 692, 697 (8th Cir. 2018). “Like any other civil litigant, [Plaintiff is]
required to respond to [Defendant's] motion with specific factual support for his claims to
avoid summary judgment.” Beck v. Skon, 253 F.3d 330, 333 (8th Cir. 2001) (citation omitted).
III. DISCUSSION
Mr. Bierbrauer’s Complaint does not identify any specific constitutional violation or state
whether he brings the suit against CO Zahn in CO Zahn’s individual or official capacity. (See ECF
No. 1.) Because the Complaint is unclear, the Court interprets Mr. Bierbrauer’s claims as claims
against CO Zahn in both his individual and official capacities. See S.S.A. v. Geisler, 127 F.4th
1133, 1136-39 (8th Cir. 2025) (overturning “clear statement rule” and holding Section 1983
plaintiff need not expressly allege capacity in which he sues defendants); Estelle, 429 U.S. at 106
(stating documents drafted by pro se litigants should be held to less stringent pleading standards
than formal pleadings drafted by lawyers); see Papantony v. Hedrick, 215 F.3d 863, 865 (8th Cir.
2000) (holding pro se complaints should be construed broadly). The Court further concludes that
Mr. Bierbrauer’s claims of “abuse and harassment”, “personal injury” and “cruel and unusual
punishment” are most appropriately analyzed under the Eighth Amendment. See Vasquez v.
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Leonard, No. 12-cv-955 (PAM/FLN), 2012 WL 5439157, at *3 (D. Minn. Oct. 22, 2012), report
and recommendation adopted, No. 12-cv-955 (PAM/FLN), 2012 WL 5430976 (D. Minn. Nov. 7,
2012) (Construing inmate’s Section 1983 complaint, which did not specifically reference a
constitutional provision, as arising under Eighth Amendment); Buckner v. Hollins, 983 F.2d 119,
123 (8th Cir. 1993) (finding Eighth Amendment provides right to be free of cruel and unusual
punishment in prison, including liability for official’s “failure to protect a prisoner from
foreseeable attack or otherwise to guarantee his or her safety”).2
A. Official Capacity Claims
The Eleventh Amendment states: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
Const. amend. XI. Although the text of the Amendment does not address suits against states
brought by their own citizens, the Supreme Court has long held that a nonconsenting state is
generally immune to such suits. See Hans v. Louisiana, 134 U.S. 1, 15 (1890); see Duhne v. New
Jersey, 251 U.S. 311, 313 (1920); see Emps. of Dep’t of Pub. Health and Welfare, Mo. et al. v.
Dep't of Pub. Health & Welfare, Mo., et al., 411 U.S. 279, 280 (1973); see Port Authority Trans-
Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990). When a suit names a state or one of its
agencies or departments as the defendant, immunity applies “regardless of the nature of the relief
2 The Court does not read the Complaint (ECF No. 1) to include state law claims. See
Condor Corp. v. City of St. Paul, 912 F.2d 215, 220 (8th Cir. 1990) (stressing “the need to exercise
judicial restraint and avoid state law issues wherever possible” and recognizing “within principles
of federalism the necessity to provide great deference and comity to state court forums to decide
issues involving state law questions.”) The Complaint provides no indication that Mr. Bierbrauer
intended to include state law claims. It is titled, “Complaint for Violation of Civil Rights Under
42 U.S.C. § 1983”, and Section 1983 creates rights of action under the United States Constitution
and certain federal laws, not state laws.
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sought,” Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984), or whether the
claim is based in federal or state law, see id. at 117-121.
Congress can abrogate the states’ sovereign immunity through federal legislation if it: (1)
unequivocally expresses an intent to do so; and (2) does so within the scope of its constitutional
powers. See Tennessee v. Lane, 541 U.S. 509, 517 (2004). This exception to sovereign immunity
does not apply to claims arising under 42 U.S.C. § 1983 (“Section 1983”), however, since the
United States Supreme Court has conclusively held that Congress did not intend for Section
1983 to abrogate the states’ sovereign immunity. See Will v. Michigan Dep't of State Police, 491
U.S. 58, 67 (1989) (“We cannot conclude that § 1983 was intended to disregard the well-
established immunity of a State from being sued without its consent.”).
Furthermore, claims against state officials named as defendants in their official capacities
are generally regarded as claims against the state itself. Pennhurst, 465 U.S. 89 at 101-02. For
these reasons, any claims for monetary damages against CO Zahn in his official capacity are barred
under the Eleventh Amendment. But courts have long recognized an exception to immunity
against official-capacity liability. Under the Ex Parte Young doctrine, when a plaintiff sues state
officials in their official capacities for prospective injunctive relief, the officials lose the defense
of sovereign immunity. See Pennhurst, 465 U.S. at 104-05. “[The doctrine] rests on the premise
... that when a federal court commands a state official to do nothing more than refrain from
violating federal law, he is not the State for sovereign-immunity purposes.” Virginia Office for
Protection & Advocacy v. Stewart, 563 U.S. 247, 255 (2011).
Mr. Bierbrauer does request injunctive relief: He seeks an order directing that K9 Mercy
be removed from use at MCF-Stillwater. (ECF No. 1 at 5; ECF No. 1-1 at 2.) CO Zahn argues
such injunctive relief would be inappropriate because: (1.) the requested relief is moot, since the
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MNDOC canine program has been “mostly discontinued” and K9 Mercy is now “retired”; and (2.)
the alleged constitutional violation was a discrete event, and continuing relief would be
inappropriate. (ECF No. 82 at 21.)
When a plaintiff requests injunctive relief, but the alleged prohibited behavior has ceased,
the plaintiff’s request is generally considered moot. See Keup v. Hopkins, 596 F.3d 899, 904 (8th
Cir. 2010). However, there is an exception to this mootness doctrine when the defendant has
voluntarily ceased the alleged prohibited behavior. See Lowry ex. rel. Crow v. Watson Chapel
Sch. Dist., 540 F.3d 752, 761 n. 8 (8th Cir. 2008). The Eighth Circuit has held that defendants who
argue mootness “due to changed circumstances based on their own behavior face a heavy burden.”
Charleston Housing Authority v. U.S. Dept. of Agric., 419 F.3d 729, 740 (8th Cir. 2005). In
instances when the defendant voluntarily ceases his or her conduct and then argues that the case is
moot, the defendant may only prevail when the defendant can make it “absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc.
v. Laidlaw Envtl. Services (TOC), Inc., 528 U.S. 167, 189 (2000) (citation omitted).
Here, the Court finds that Defendant Zahn has met his burden to establish the requested
injunction is moot because the alleged wrongful behavior (K9 Mercy biting Mr. Bierbauer) could
not reasonably be expected to recur. CO Zahn’s supporting materials state that the canine program
at MCF-Stillwater is now closed due to “budgetary reasons.” (ECF No. 84 at 3.) Though it is
theoretically possible that the program at MCF-Stillwater could reopen at some point, there is no
reason to believe that is a realistic possibility. The Court takes judicial notice of the fact that
MNDOC has publicly announced a “phase closure” of MCF-Stillwater, with plans to completely
close the facility by June 30, 2029. See https://mn.gov/doc/about/phased-closure-of-mcf-
stillwater/ (last visited Feb. 25, 2026). Furthermore, CO Zahn’s supporting materials also state
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that K9 Mercy has been “retired” as a result of MNDOC discontinuing the program. (Id. at 5.)
Given the cessation of the canine program at MCF-Stillwater and K9 Mercy’s retirement, the
likelihood of K9 Mercy returning to MCF-Stillwater to bite Mr. Bierbrauer again is vanishingly
remote. Mr. Bierbauer’s request for an injunction directing that K9 Mercy be removed from use
at MCF-Stillwater is therefore moot.
Moreover, the injunctive relief exception to Eleventh Amendment sovereign immunity
applies only when the named official has some power to grant the requested relief. See Randolph
v. Rodgers, 253 F.3d 342, 346 (8th Cir. 2001) (finding claim for injunctive relief against prison
officials moot because they were not in position to grant it); see Martin v. Sargent, 780 F.2d 1334,
1337 (8th Cir.1985) (concluding claim for injunctive relief against warden was moot because
prisoner was transferred to another prison). The evidence in this case suggests CO Zahn has no
control over whether MCF-Stillwater has a canine program or whether K9 Mercy works there.
CO Zahn is a Corrections Officer. (ECF No. 83 at 1.) He is not a warden, superintendent or
commissioner with responsibility for prison program funding decisions or making canine
assignments with respect to such programs. For these reasons CO Zahn is not a proper target of
the requested injunctive relief and the official capacity claims against him should be dismissed.
B. Eighth Amendment Individual Capacity Claims
The Eighth Amendment prohibits the imposition of cruel and unusual punishment. U.S.
Const. amend. VIII. This prohibition applies to both state and federal actors, see, e.g., Jones v.
Mississippi, 141 S. Ct. 1307, 1314 (2021); Brown v. Precythe, 46 F.4th 879, 883 (8th Cir. 2022) (en
banc) (citing Miller v. Alabama, 567 U.S. 460, 479 (2012)), and includes claims against prison
officials for excessive force and failure to protect prisoners from harm. See, e.g., Farmer v.
Brennan, 511 U.S. 825, 832-33 (1994).
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The evidence in this case is far from clear as to whether K9 Mercy bit Mr. Bierbrauer, or
whether he sustained all his injuries during the fight with the other inmates. The record presents
a genuine issue of fact on that question. Therefore, viewing the facts in the light most favorable
to Mr. Bierbrauer as the Court must on a motion for summary judgment, the Court presumes K9
Mercy injured Mr. Bierbrauer and considers whether CO Zahn could be liable for those injuries,
either because the bite constituted a use of excessive force, or because CO Zahn’s failure to protect
Mr. Bierbrauer from K9 Mercy violated the Eighth Amendment.
1. Excessive Force
For Mr. Bierbrauer to maintain an excessive force claim, the facts, read most favorably to
Mr. Bierbrauer, must demonstrate that CO Zahn either did not apply force “in a good-faith effort
to maintain or restore discipline,” or applied force “maliciously and sadistically to cause harm.”
Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). “The word ‘sadistically’ is not surplusage; ‘maliciously’
and ‘sadistically’ have different meanings, and the two together establish a higher level of intent
than would either alone.” Jackson v. Gutzmer, 866 F.3d 969, 974 (8th Cir. 2017), (cleaned up),
(quoting Howard v. Barnett, 21 F.3d 868, 872 (8th Cir.1994)). De minimis uses of physical force
do not constitute excessive force unless they are “repugnant to the conscience of mankind.”
Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (internal quotations omitted).
The excessive force inquiry turns on “such factors as the need for the application of force,
the relationship between the need and the amount of force that was used, and the extent of injury
inflicted, from which inferences may be drawn as to whether the use of force could plausibly have
been thought necessary, or instead evinced such wantonness with respect to the unjustified
infliction of harm as is tantamount to a knowing willingness that it occur.” Jackson, 866 F.3d at
974 (cleaned up) (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). The standard to establish
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an excessive force claim is highly deferential to prison officials. See Jackson, 866 F.3d at 974. “It
does not insulate from review actions taken in bad faith and for no legitimate purpose, but it
requires that neither judge nor jury freely substitute their judgment for that of officials who have
made a considered choice.” Id. (quoting Whitley, 475 U.S. at 322). Courts must also recognize
that corrections officials must act “in haste, under pressure, and frequently without the luxury of a
second chance.” Whitley, 475 U.S. at 320. If the evidence shows only “a mere dispute over the
reasonableness of a particular use of force or the existence of arguably superior alternatives ... the
case should not go to the jury.” Id. at 322.
Read most favorably to Mr. Bierbrauer, the facts do not demonstrate that CO Zahn
“maliciously and sadistically” applied force to Mr. Bierbrauer. Indeed, the facts do not
demonstrate that CO Zahn intentionally applied any force to Mr. Bierbrauer at all. Using a canine
to engage with an already surrendering individual can constitute excessive force. See Smith v.
Buck, 564 F. App’x 258 (8th Cir. 2014) (reversing grant of summary judgement when dog was
used after plaintiff had fully surrendered). But there is nothing in the record of this case to suggest
CO Zahn directed K9 Mercy to attack Mr. Bierbrauer after Mr. Bierbrauer began surrendering.
Instead, Mr. Bierbrauer’s complaint and subsequent briefing suggest that CO Zahn sought to use
K9 Mercy to apprehend inmate Fincher, who was not surrendering, but during the quickly
unfolding situation K9 Mercy bit Mr. Bierbrauer instead. (ECF No. 83 at 4-5.) Mr. Bierbrauer
does not dispute CO Zahn’s statement that he did not intend for K9 Mercy to attack him. (See
ECF No. 90 at 1, “I was trying too [sic] surrender, but then his K9 bit me: as he says it was not his
intent but all K9 handlers are responsable [sic] for the dogs [sic] actions.”) Mr. Bierbrauer thus
seeks to hold CO Zahn accountable for K9 Mercy’s actions, but the evidence does not support a
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finding that CO Zahn participated in a malicious or sadistic application of force against Mr.
Bierbrauer.
To the extent that Mr. Bierbrauer alleges CO Zahn used excessive force by merely
responding to the Incident Command System alert with a canine, that argument fails. The Eighth
Circuit has held repeatedly that the use of canines by law enforcement officers is not a per se
violation of the Fourth Amendment prohibition against excessive force. See Robinette v. Barnes,
854 F.2d 909, 914 (8th Cir. 1988) (“The use of dogs can make it more likely that the officers can
apprehend suspects without the risks attendant to the use of firearms in the darkness, thus,
frequently enhancing the safety of the officers, bystanders and the suspect.”); Kuha v. City of
Minnetonka, 365 F.3d 590, 600 (8th Cir. 2003), overruled on other grounds by, Szabla v. City of
Brooklyn Park, 486 F.3d 385 (8th Cir. 2007); Dennen v. City of Duluth, 350 F.3d 786, 792 (8th
Cir. 2003). The use of canines in prisons a fortiori does not engender a per se violation of the
Eighth Amendment. See Hughes v. Rodriguez, 31 F.4th 1211, 1221 (9th Cir. 2022) (holding that
if the use of canines does not breach the more “plaintiff-friendly” Fourth Amendment standard, “it
does not breach the higher Eighth Amendment standard” for excessive force).
To the extent that Mr. Bierbrauer contends CO Zahn used excessive force by using K9
Mercy, specifically, that argument also fails. CO Zahn produced evidence indicating that K9
Mercy had received all the requisite training for K9 officers. (ECF No. 84 at 5.) The evidence
also demonstrates that K9 Mercy had no prior history of inappropriately biting a compliant inmate.
(Id.) Mr. Bierbrauer cannot therefore argue that K9 Mercy was known to indiscriminately attack
inmates, such that bringing him to the altercation recklessly risked unreasonable force.
Rather than showing that CO Zahn maliciously and sadistically caused harm to Mr.
Bierbrauer, the record reflects that CO Zahn presented with K9 Mercy in a good-faith effort to
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maintain or restore discipline. CO Zahn attempted other de-escalation techniques, including verbal
warnings and pepper spray, and did not direct K9 Mercy to attack Mr. Bierbrauer. (ECF No. 83
at 4-5.) And CO Zahn made a concerted effort to keep K9 Mercy away from Mr. Bierbrauer,
including pulling K9 Mercy back so far that the dog’s legs dangled off the balcony, and
intentionally facing K9 Mercy away from Mr. Bierbrauer to avoid contact. (Id. at 5.) An Eighth
Amendment excessive force claim is a high burden. Because the facts do not support a finding
that CO Zahn intentionally inflicted any force Mr. Bierbrauer, let alone malicious and sadistic
force, the Court recommends the excessive force claim be dismissed.
2. Failure to Protect
To establish a failure to protect claim under the Eighth Amendment, a prisoner must show
that the defendant “was deliberately indifferent to a ‘substantial risk of serious harm’” to the
prisoner. Young v. Selk, 508 F.3d 868, 872 (8th Cir. 2007) (quoting Farmer v. Brennan, 511 U.S.
825, 828 (1994)). Courts can impose liability when jailors fail to protect inmates from generalized
harms such as assaults by other inmates. See, e.g., Doe v. Washington County, 150 F.3d 920, 922–
23 (8th Cir.1998) (county liable for failure to prevent inmate attack). “‘[I]t does not matter ...
whether a prisoner faces an excessive risk of attack for reasons personal to him or because all
prisoners in his situation face such a risk.’” Id. (quoting Farmer, 511 U.S. at 843). But to establish
an actionable failure to protect, a plaintiff “must satisfy two requirements, one objective and one
subjective. The first requirement tests whether, viewed objectively, the deprivation of rights was
sufficiently serious; i.e., whether the inmate ‘is incarcerated under conditions posing a substantial
risk of serious harm.’” Whitson v. Stone County Jail, 602 F.3d 920, 923 (8th Cir.
2010) (quoting Farmer, 511 U.S. at 834). “The second requirement is subjective and requires that
the inmate prove that the [state] official had a ‘sufficiently culpable state of mind.’” Id. (quoting
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Farmer, 511 U.S. at 834). A “sufficiently culpable state of mind” is demonstrated when the prison
official has actual knowledge of the substantial risk and fails to respond to it in a reasonable
manner. See Farmer, 511 U.S. at 844–45.
Mr. Bierbrauer does not establish a failure to protect claim because the facts do not
demonstrate that CO Zahn was deliberately indifferent to a serious risk of potential harm. K9
Mercy’s mere presence did not present a serious risk of potential harm. The canine program had
operated at MCF-Stillwater since 2011, and within the MNDOC prison system for even longer.
(ECF No. 84 at 2; ECF No. 83 at 2.) MNDOC approves the use of canines to respond to Incident
Command System situations, including using canine force in such situations at the direction of a
canine’s handler when circumstances warrant. (ECF No. 84-1 at 5.) MNDOC selects canines for
the canine program, in part, based on their psychological stability, temperament, and ability to
obey commands. (ECF No. 84 at 3.) Following selection, MNDOC canines and their handlers are
required to receive special training before the canines are used within the MNDOC prison system.
(ECF No. 84-1 at 4.) Mr. Bierbauer has produced no evidence of any history of unprovoked or
excessive K9 attacks in the MNDOC canine program, and there is no evidence in the record to
suggest any such history exists.
K9 Mercy is a trained canine, not prone to random attacks. (ECF No. 84 at 5.) Captain
Pavlich stated that he has “never conducted a use of force review that involved K9 Mercy biting
or otherwise apprehending an incarcerated person” and saw “no problems or concerns regarding
K9 Mercy” while he worked at MCF-Stillwater. (Id.) To the best of anyone’s knowledge, K9
Mercy would not attack anyone unless his handler directed him to do. To the extent K9 Mercy
unjustifiably bit Mr. Bierbrauer, there is no evidence CO Zahn had any prior knowledge or reason
to suspect K9 Mercy was capable of doing so. See Vandevender v. Sass, 970 F.3d 972, 976 (8th
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Cir. 2020) (“Most of our prior failure-to-protect cases arising out of an inmate-on-inmate assault
have involved an attacker who was known to be a volatile, dangerous man”); see Bou v. Bauman,
No. 2:19-CV-62, 2019 WL 1771560, at *2 (W.D. Mich. Apr. 23, 2019) (considering failure to
protect claim involving dog known to have previously bitten inmates and staff, but denying claim
because warden ordered dog muzzled). With no history of violence, K9 Mercy cannot have
presented “a serious risk of potential harm.”
Because there was no “serious risk of potential harm”, CO Zahn could not have been
“deliberately indifferent” to any such risk. Moreover, CO Zahn proactively attempted to avoid
contact between Mr. Bierbrauer and K9 Mercy, going so far as to pull K9 Mercy off the catwalk
entirely and face K9 Mercy away from Mr. Bierbrauer. (ECF No. 83 at 5.) Because the facts
establish neither “a serious risk of potential harm” nor “deliberate indifference” to the risk of harm,
the Court recommends that the failure to protect claim be dismissed.3
RECOMMENDATION
Based on the foregoing, and on all the files, records, and proceedings herein, IT IS
HEREBY RECOMMENDED that Defendant Dennis Zahn’s Motion for Summary Judgment
(ECF No. 81) be GRANTED.
Dated: February 26, 2025 s/ Dulce J. Foster
Dulce J. Foster
United States Magistrate Judge
3 Having found that Mr. Bierbauer’s individual capacity claims should be dismissed under
Rule 12(b)(6), the Court does not need to reach CO Zahn’s argument that these claims are
precluded by qualified immunity.
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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).
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