McCoy v. Marshall et al

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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
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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
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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
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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.
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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
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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).
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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
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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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