Dennis v. City of Rochester et al

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Molly L. Dennis,
Plaintiff,
v.
City of Rochester and Kim Norton, in her
individual as well as official capacity as the
mayor of the City of Rochester,
Defendants.
Case No. 24-cv-426 (PJS/DLM)
REPORT AND
RECOMMENDATION
This matter is before the Court on Plaintiff Molly L. Dennis’s Second Motion to
Amend her Complaint. (Docs. 73 (Motion), 81 (Memorandum in Support), 82 (Declaration
in Support), 82-1 (Proposed Second Amended Complaint “SAC”).) The SAC seeks to
assert a First Amendment retaliation claim against Defendants City of Rochester, Ms.
Norton, and previously dismissed City of Rochester City Council Member Patrick Keane
(collectively “Defendants”). (See Doc. 82-1 at 21-22.) The SAC also seeks to amend the
Prayer for Relief to include a request for declaratory relief that certain City of Rochester
protocols for elected officials are unconstitutional restrictions on protected speech. (See id.
at 22-23.)
Defendants oppose Plaintiff’s motion to amend. (Docs. 79 (Memorandum in
Opposition), 80 (Declaration in Opposition), 88 (Reply in Opposition).) The case has been
referred to the undersigned magistrate judge for a Report and Recommendation pursuant
to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1. For the reasons below, the
Court recommends that Plaintiff’s Second Motion to Amend be granted in part and denied
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in part. Specifically, the Court recommends permitting Ms. Dennis to amend her complaint
to assert a First Amendment retaliation claim against the City of Rochester but denying her
motion to amend in all other respects.
BACKGROUND
The allegations that animate this lawsuit were discussed in significant detail in the
Court’s previous Report and Recommendation granting in part and denying in part
Defendants’ Motion to Dismiss (Doc. 38) and will not be repeated in the same level of
detail here. In sum, Ms. Dennis suffers from attention deficit hyperactivity disorder
(“ADHD”), which includes a number of disabling features. (Doc. 13 ¶¶ 12-13.) The First
Amended Complaint, which Ms. Dennis filed when she was pro se, alleged that Defendants
repeatedly and intentionally discriminated against her in violation of state and federal law
while she was an elected City Council member. She invoked a wide range of statutory
authority, including (among others) the Americans with Disabilities Act (“ADA”), the
Minnesota Human Rights Act (“MHRA”), Title VII, 42 U.S.C. § 1981, and the Lily
Ledbetter Fair Pay Act. (Doc. 13 at 14-17.) She also brought a common-law defamation
claim against Defendant Norton, and a First Amendment retaliation claim against
Defendants Norton and Keane in their individual and official capacities. (Id. at 17-18.) The
gravamen of Ms. Dennis’s First Amendment retaliation claim was that she engaged in
protected conduct by speaking at Council meetings and with city staff, and that Defendants
Norton and Keane retaliated against her by censuring her. (Id. at 17-19.)
Defendants moved to dismiss all of Ms. Dennis’s claims. The Court granted in part
and denied in part Defendants’ motion, allowing Ms. Dennis’s ADA and MHRA denial-
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of-public-services claims to go forward against the City of Rochester, and allowing her
MHRA reprisal claim to go forward against the City of Rochester and Ms. Norton. (Doc.
51 (Order adopting R&R).) The remainder of the claims, including Ms. Dennis’s First
Amendment retaliation claim, were dismissed. (Id.)
About a month after the Court’s ruling on Defendants’ motion to dismiss, Ms.
Dennis secured counsel. (Doc. 63.) On June 30, 2025—the day before the deadline to
amend pleadings—Ms. Dennis filed her Second Motion to Amend her Complaint (Doc.
73), along with a proposed SAC (Doc. 74).1 In this version of the proposed SAC, Ms.
Dennis sought to add allegations about a code of conduct for elected Rochester City
Council Members,2 which she asserted served as a prior restraint on her constitutionally
protected speech. (See id. ¶¶ 22-30, 61-68.) She also sought to bring a new First
Amendment retaliation claim against the City of Rochester, Ms. Norton, and previously
dismissed Defendant Mr. Keane. (Id. ¶¶ 53-60.) Ms. Dennis averred that the adverse
actions supporting her new claim “were administrative and procedural actions to be
distinguished from the censure . . . which the Court deemed a legislative act immune from
suit.” (Id. ¶ 55.)
On July 7, 2025, Defendants submitted their memorandum in opposition to
Plaintiff’s motion to amend, primarily arguing futility because neither the new First
1 Plaintiff did not file a memorandum in support of her motion to amend.
2 Defendants have proffered what they contend is the City of Rochester’s actual code of
conduct, which Ms. Dennis references in the SAC but did not attach to the pleading. (Docs.
79 at 7-8; 80-1 (City of Rochester Rules of Procedure and Code of Conduct of City
Council); 80-2 (same, revised Jan. 8, 2024).) The Court may properly consider Defendants’
documents as they are embraced by the pleadings. Porous Media Corp. v. Pall Corp., 186
F.3d 1077, 1079 (8th Cir. 1999).
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Amendment retaliation claim, nor the Prior Restraint claim could survive a motion to
dismiss.3 (Doc. 79.) In response, Ms. Dennis filed what was essentially a motion for
supplemental briefing, which the Court granted. (Docs. 83; 87.) Along with arguments on
the merits made in her reply, Ms. Dennis indicated she was withdrawing her Prior Restraint
claim as a standalone count and instead sought to pursue declaratory relief that the City of
Rochester’s code of conduct was an unconstitutional restraint on speech. (Doc. 81 at 15-
17.) She also submitted a revised SAC that conformed to this remolding. (Doc. 82-1, Prayer
for Relief.) Defendants filed their surreply on July 18, 2025. (Doc. 88.) In it, Defendants
reassert their futility argument as to the First Amendment retaliation claim and argue that
the newly added declaratory relief request is both untimely and futile (since Ms. Dennis is
no longer a Council member). (Id.) The Court heard argument on the matter on August 27,
2025 (Doc. 89), and it is ripe for decision.
ANALYSIS
Leave to amend a pleading is governed by Federal Rule of Civil Procedure 15(a)(2).
Rule 15 provides that “a party may amend its pleading only with the opposing party’s
written consent or the court’s leave” and states that “[t]he court should freely give leave
when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, the right to amend is not
guaranteed. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008). Courts
may deny a party’s motion for “undue delay, bad faith, or dilatory motive, repeated failure
to cure deficiencies by amendments [a court] previously allowed undue prejudice to the
3 Defendants devote a paragraph of their opposition to asserting that Defendants,
particularly Mr. Keane, would be unduly prejudiced if the amendment were permitted.
(Doc. 79 at 26.)
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non-moving party, or futility of the amendment.” Id. (quoting Moses.com Sec., Inc. v.
Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005)).
Allegations in a proposed amended pleading are futile if “the amended [pleading]
could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure.” Cornelia I. Crowell GST Tr. v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir.
2008) (citing In re Senior Cottages of Am., LLC, 482 F.3d 997, 1001 (8th Cir. 2007)). And
that standard requires that a complaint “contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.” Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned
up)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). In applying this standard, the Court accepts the factual allegations as true and
views them most favorably to the plaintiff. Hager v. Ark. Dep’t of Health, 735 F.3d 1009,
1013 (8th Cir. 2013).
I. PLAINTIFF’S MOTION TO AMEND SHOULD NOT BE DENIED ON
PROCEDURAL GROUNDS.
The Court first addresses Defendants’ argument that Ms. Dennis’s motion to amend
is untimely as to the request for declaratory relief. Defendants concede that Plaintiff’s
motion to amend was timely filed—it was filed on June 30, 2025, and the deadline to amend
pleadings was July 1, 2025. (Docs. 73; 74; 70 (Pretrial Scheduling Order).) But since that
time, Ms. Dennis changed course. In her July 11, 2025 Reply memorandum, she stated she
was withdrawing her motion to include a standalone Prior Restraint claim, and replacing it
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with an amendment to her Prayer for Relief to include a request for declaratory relief which
was a narrowed recasting of the standalone claim. (Doc. 81 at 15-17; compare Doc. 74 ¶¶
62-67 with Doc. 82-1 at 22 ¶ B.) Defendants read Ms. Dennis’s maneuver as a wholly new
amendment to the pleadings, and one submitted ten days after the deadline. As a result, say
Defendants, Ms. Dennis must show good cause for the amendment.
It is true that where a party moves to amend the pleadings after the deadline passes,
the Court must first reopen the motion deadline under Rule 16 of the Federal Rules of Civil
Procedure. See Shank v. Carleton Coll., 329 F.R.D. 610, 614 (D. Minn. 2019) (“Rule
16(b)(4) must be addressed first . . . Rule 16 opens the door to Rule 15.”) Rule 16 provides
that a pretrial schedule “may be modified only for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4). Determining whether good cause has been shown “falls
within the magistrate judge’s broad discretion.” Shank, 329 F.R.D. at 614. Although
diligence is the primary factor courts look to when deciding whether good cause exists to
reopen a deadline, courts are free to consider other factors such as prejudice to the
nonmovant, the significance of the amendment, or other considerations. See Income
Allocation, LLC v. TruChoice Fin. Grp., LLC, No. 22-cv-343 (JWB/JFD), 2023 WL
3916738, at *3 (D. Minn. June 9, 2023); see also Marmo v. Tyson Fresh Meats, Inc., 457
F.3d 748, 759 (8th Cir. 2006)).
It is worth considering the practicality of Defendants’ argument. Plaintiff timely
moved to amend; Defendants responded. Acknowledging the force of Defendants’
arguments, Plaintiff then dropped her standalone Prior Restraint claim, reformulating her
attack on the code of conduct in her Prayer for Relief. In other words, the amendment that
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Defendants complain is untimely narrows the scope of Plaintiff’s motion. Even if the Court
accepted the argument that the narrowed SAC was untimely—a tenuous proposition—the
Court would find ample good cause for the amendment. Accordingly, Ms. Dennis’s motion
to amend her complaint to add a request for declaratory relief will not be denied on this
basis.
Likewise, Plaintiff’s motion to amend will not be denied based on undue prejudice.
Defendants are correct that if amendment were permitted, Mr. Keane will be haled back
into court after being dismissed long ago, and all Defendants would face a new claim. But
Ms. Dennis asserts no genuinely new facts, and Mr. Keane’s alleged participation in
wrongdoing is no different than it was alleged in Ms. Dennis’s First Amended Complaint.
Additionally, there is ample time yet for the parties to conduct discovery. Certainly, there
is a litigation burden when a new claim is added and when a dismissed defendant is returned
to a lawsuit. It is prejudice, to be sure, but not undue prejudice. See e.g., Advance Tr. &
Life Escrow Servs., LTA v. ReliaStar Life Ins., No. 18-cv-2863 (DWF/ECW), 2020 WL
5229677, at *11 (D. Minn. Sept. 2, 2020) (“A party opposing a motion to amend a pleading
must not merely show prejudice: it must show unfair prejudice.”).
II. THE COURT RECOMMENDS DENYING MS. DENNIS’S MOTION TO
AMEND AS FUTILE, EXCEPT FOR HER FIRST AMENDMENT
RETALIATION CLAIM AGAINST THE CITY OF ROCHESTER.
In her SAC, Ms. Dennis seeks to add her request for declaratory relief, as well as a
new standalone First Amendment retaliation claim. The Court will address each in turn.
A. Ms. Dennis lacks standing to pursue her request for declaratory relief.
Standing to sue is a doctrine developed to ensure federal courts do not exceed their
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limited constitutional authority to decide cases or controversies. Spokeo, Inc. v. Robbins,
578 U.S. 330, 338 (2016). “The doctrine limits the category of litigants empowered to
maintain a lawsuit in federal court to seek redress for a legal wrong.” Id. To have standing,
at a minimum a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Id. Standing must be shown for each form of relief sought,
including declaratory relief. Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc.,
528 U.S. 167, 185 (2000); Digit. Recognition Network v. Hutchinson, 803 F.3d 952, 956
(8th Cir. 2015).
Measured against these principles, Ms. Dennis cannot demonstrate standing for her
declaratory relief request. In her revised SAC, she is seeking a declaration that the “City of
Rochester Code of Ethics and Conduct for Elected and Appointed Officials” and a
memorandum based on that code of conduct are unconstitutional constraints on protected
speech. (Doc. 82-1 at 22 ¶ B.) But by her own telling, the code of conduct’s restrictions
apply to Council members. (See Doc. 82-1 ¶ 22 (“The Code of Ethics and Conduct for
Elected and Appointed Officials includes ‘Conduct Guidelines’ that seek to restrain the
speech and conduct of Council Members . . ..”) (emphasis added).)
The Court takes judicial notice that Ms. Dennis is no longer a Rochester City
Council member: she came in fourth in the August 13, 2024 primary, and another candidate
won her seat in the November 5, 2024 general election.4 And therein lies Ms. Dennis’s
4 Office of the Secretary of State, Elections and Voting, Unofficial Results Tuesday, August
13, 2024, Council Member District 6 (Rochester),
https://electionresults.sos.mn.gov/results/Index?ErsElectionId=169&scenario=LocalMuni
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standing problem. A party may not generally pursue declaratory relief “‘to proclaim
liability for a past act,’ rather than ‘define the rights and obligations of the parties in
anticipation of some future conduct.’” Lackie v. Minnesota State Univ. Student Ass’n, Inc.,
No. 24-cv-1684 (LMP/LIB), 2025 WL 416764, at *3 (D. Minn. Feb. 6, 2025) (quoting
Justice Network, Inc. v. Craighead Cnty., 931 F.3d 753, 764 (8th Cir. 2019)). Instead,
“declaratory relief is limited to prospective declaratory relief.” Justice Network, Inc., 931
F.3d at 764.
In apparent recognition of Ms. Dennis’s tenuous standing to pursue declaratory
relief, she makes two arguments: (1) that other courts recognized that declaratory relief
might be available to redress unconstitutional public-speech restrictions; and (2) even if
Ms. Dennis does not have personal standing, she has standing to pursue relief on behalf of
others affected by the allegedly-unconstitutional restrictions on Council members’ speech.
(Doc. 81 at 15-17.) Neither argument is availing.
For the former proposition, Ms. Dennis cites Griffin v. Bryant, 30 F. Supp. 3d 1139
(D.N.M. 2014). There, the Village of Ruidoso had enacted a resolution that prohibited
speakers from making negative comments about Village personnel or Governing Body5
cipality&FipsCode=54880&show=Go (Primary Results); Office of the Secretary of State,
Elections and Voting, Unofficial Results Tuesday, November 5, 2024, Council Member
District 6 (Rochester),
https://electionresults.sos.mn.gov/results/Index?ErsElectionId=170&scenario=LocalMuni
cipality&FipsCode=54880&show=Go (General Election Results). The Court may take
judicial notice of election results pursuant to Federal Rule of Evidence 201(b)(2). Green
Party of Ark. v. Martin, 649 F.3d 675, 679 (8th Cir. 2011); see also Pavek v. Simon, 467 F.
Supp. 3d 718, 731 (D. Minn. 2020) (“The Court takes judicial notice of Minnesota’s
election results published by the Minnesota Secretary of State on its website.”).
5 The “Governing Body” here referred to the Village Council, similar to Rochester’s City
Council. Griffin, 30 F. Supp. 3d at 1171 n.13.
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members during the public input portion of Village Governing Body meetings. 30 F. Supp.
3d at 1171-72 & n.14. Mr. Griffin was permitted to pursue declaratory relief that this
resolution violated the First Amendment, even though there was no evidence he had ever
been punished for disregarding the resolution. Id. at 1176. But Mr. Griffin was a member
of the public, and the resolution at issue in his case applied generally to all those who spoke
publicly at Governing Body meetings. Id. at 1171-72. These features were critical to a
finding of standing to pursue declaratory relief, since a declaration that the resolution was
unconstitutional would “protect Griffin from recurring injury.” Id. at 1176. In other words,
declaratory relief was available to Mr. Griffin prospectively because there was good reason
to think he might be harmed again. Accord Justice Network, Inc., 931 F.3d at 764.
In contrast, Ms. Dennis today has no threat of “recurring injury” based on the code
of conduct and interpretative documents derived from the code. That is because, by Ms.
Dennis’s allegations, these documents govern “the speech and conduct of Council
Members.” (Doc. 82-1 ¶ 22.) That group does not include her, and thus the code does not
apply to her. A favorable declaratory judgment decision would be solely retrospective,
which is inconsistent with the formulation of declaratory relief standing for claims like this.
At the hearing on this matter, Ms. Dennis suggested that she may have standing
because as an elected official she was a representative of the public. The rights of her
constituents, argued Ms. Dennis, were hers to vindicate given her prior position. And those
constituents’ rights include the expectation that Council members will not be silenced at
meetings.
This argument is not found in Ms. Dennis’s memoranda, which itself would support
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rejecting it. But even considering it on the merits, the argument would expand third-party
standing beyond its bounds. It is true that a plaintiff may bring suit on behalf of someone
else in limited circumstances. See, e.g., Kowalski v. Tesmer, 543 U.S. 125, 129-30 (2004);
Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n.3. (1989). But to do
so, a plaintiff must show they have suffered an injury in fact; that they have a “close
relationship” with the third party; and that there is some impediment to the third party
bringing the claim directly. Powers v. Ohio, 499 U.S. 400, 410-11 (2000). Ms. Dennis, as
a former Council member, does not have the kind of “close relationship” with her former
constituents to confer third-party standing; they are, after all, no longer her constituents.
And she makes no argument that voters themselves would be hindered from bringing a
declaratory relief claim if they believed Council members were being unconstitutionally
silenced. In short, while Ms. Dennis may have represented constituents during her tenure
as a Council member, she does not do so now and therefore cannot do so in court.
B. Ms. Dennis’s First Amendment retaliation claims.
Through the SAC, Ms. Dennis seeks to assert First Amendment retaliation claims
against Ms. Norton and Mr. Keane in their individual and official capacities as Mayor and
Council member, respectively, as well as against the City of Rochester directly. (Doc. 82-
1 ¶¶ 63-71.) Analyzing such claims for each Defendant, and each Defendant’s capacity,
requires some nuance, as discussed below. But at the least, a First Amendment retaliation
claim requires a showing that (1) the plaintiff engaged in some protected activity; (2) one
or more government officials took some action that would chill a reasonable person from
continuing in the activity; and (3) there is a causal connection between the protected
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activity and adverse action. Scheffler v. Molin, 743 F.3d 619, 621 (8th Cir. 2014). The
showing of a causal connection “is generally a jury question” unless it is clear no jury could
find such a link. Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004).
The Court has already dismissed a First Amendment retaliation claim Ms. Dennis
attempted to assert against Ms. Norton and Mr. Keane in Count IX of her First Amended
Complaint. (Docs. 38; 51.) That claim related to a March 6, 2023 censure that Ms. Dennis
alleged was imposed on her in retaliation for engaging in First Amendment protected
activity. (See Doc. 13 ¶¶ 14, 43-53.) In its Report and Recommendation, this Court
concluded that the censure was a legislative act for which Ms. Norton and Mr. Keane were
entitled to absolute immunity. (Doc. 38 at 38.) Ms. Dennis did not object to that conclusion.
(See Doc. 51.)
Ms. Dennis attempts to distance the First Amendment retaliation claim set forth in
her SAC from the one the Court has already dismissed. She asserts that she suffered adverse
actions that were “administrative and procedural actions to be distinguished from the
censure as set forth in Count IX, which the Court deemed a legislative act immune from
suit.” (Doc. 82-1 ¶ 66.) These actions were: (1) restricting Ms. Dennis’s interactions with
city employees; (2) evicting Ms. Dennis from Council meetings; (3) Ms. Norton and Mr.
Keane refusing to interact with Ms. Dennis; (4) not seconding her Council motions and
interrupting her during debate; and (5) clarifying that the Council’s code of conduct
prohibition on derogatory remarks may include certain words and phrases Ms. Dennis
frequently used. (Id. ¶¶ 27(a)-(e).)
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For their part, Defendants argue that the alleged adverse actions Ms. Dennis asserts
would not chill the speech of an elected official of ordinary firmness; that there is scant
evidence of a causal connection between the adverse action and her protected speech; and
that legislative and/or qualified immunity insulates Defendants from liability. Defendants
do not—at least at this stage—challenge Ms. Dennis’s assertion that she engaged in
protected activity, and the SAC includes sufficient allegations to support the inference of
a causal link. The merit of Ms. Dennis’s proposed amendments, then, turn on whether she
sufficiently alleges she suffered any qualifying adverse action and, if so, the interplay
between those allegations and each of the Defendants.
1. Several allegations do not qualify as materially adverse actions.
Not every adverse action supports a First Amendment retaliation claim. Instead, a
plaintiff must show official action that would chill a person of ordinary firmness from
speaking out. Scheffler, 743 F.3d at 621. This standard—the “ordinary-firmness test”—is
“designed to weed out trivial matters from those deserving the time of the courts as real
and substantial violations of the First Amendment.” Garcia v. City of Trenton, 348 F.3d
726, 728 (8th Cir. 2003). This is an objective test. Id. at 729. But the test also accounts for
Ms. Dennis’s position as an elected official, since that informs the “ordinary firmness”
analysis. Zutz v. Nelson, 601 F.3d 842, 849 (8th Cir. 2010); Kleis v. City of Becker, No. 16-
cv-1005 (ADM/JSM), 2016 WL 4007573 (D. Minn. July 26, 2016).
“In this country, we expect elected representatives to shoulder a degree of criticism
about their public service from their constituents and their peers—and to continue
exercising their free speech rights when the criticism comes.” Houston Cmty. Coll. Sys. v.
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Wilson, 595 U.S. 468, 478 (2022). That is particularly true when it comes to what another
court in this district termed “intra-council disputes”—those among members of the same
political body. Kleis, 2016 WL 4007573, at *3. Relying on Blair v. Bethel Sch. Dist., 608
F.3d 540 (9th Cir. 2010), the court in Kleis identified three reasons for scrutinizing
allegations of adverse action in this arena: (1) often the complained-of conduct is less
severe than what typical First Amendment plaintiffs face; (2) there is wider latitude when
all actors are in the same political playing field; and (3) the alleged wrongdoers have their
own First Amendment rights, and those rights, too, might be encroached through a
politician-colleague’s lawsuit. 2016 WL 4007573, at *3. In Wilson, the Supreme Court
agreed, holding that “a censure of one member of an elected body by other members of the
same body” was not enough adverse action to support a First Amendment retaliation claim,
even though it might have been if the plaintiff were not an elected official. 595 U.S. at 479-
81. As another court interpreting Wilson put it, “[i]f a sanction is a common form of
discipline imposed by a political body on its own members, that sanction is unlikely to chill
[an elected official] from engaging in future First Amendment activity.” Temple v. Lower
Elkhorn Nat. Res. Dist., No. 23-cv-3198, 2023 WL 8934916, at *4 (D. Neb. Dec. 27, 2023).
Viewed through this lens, few of Ms. Dennis’s allegations of misconduct rise to the
level of qualifying as adverse action. Ms. Dennis argued that Ms. Norton and Mr. Keane
“refused to interact” with her in a meaningful way, making it harder to do her job as a
Council member. (Doc. 82-1 ¶ 27(c).) Along the same lines, Ms. Dennis asserts that
“Defendants adopted a policy of refusing to second any Council-initiated motion” she
brought, and that she was treated rudely during Council meetings. (Id. ¶ 27(d).) Finding
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this type of conduct actionable would run afoul of Wilson. This is politics. Of course,
politicians do not forfeit their First Amendment rights by virtue of their office, but neither
does the Constitution demand that one’s political opponents play nice. See Blair, 608 F.3d
at 544 (noting that playing “political hardball” is not generally actionable; “more is fair in
electoral politics than in other contexts”); accord Temple, 2023 WL 8934916, at *5-6
(concluding exclusion from subcommittee assignments was not actionable in part because
“it is a common sanction employed by political bodies”). The type of freezing out Ms.
Dennis alleges could not lead a reasonable jury to conclude she suffered actionable First
Amendment retaliation.
Ms. Dennis next asserts that she was subjected to the “enforcement of vague,
overbroad and arbitrary rules.” (Doc. 82-1 ¶ 27(e).) Specifically, she references a
September 13, 2024 memorandum from the Rochester City Clerk and City Attorney (Doc.
74-1) that clarified what type of language would be within the code of conduct’s definition
of “derogatory remarks” and “insinuations.”6 (Doc. 82-1 ¶ 27(e).) According to Ms.
Dennis, the September 13, 2024 interpretive memorandum was designed to target her
speech and silence her. (Id.) But the memorandum imposes no discipline at all. It is the
City Clerk and City Attorney’s advisement about their interpretation of what might be
considered derogatory conduct, produced in apparent response to Ms. Dennis’s request for
clarification. (See Doc. 74-1 at 1-2.) The memorandum makes clear that final interpretation
of the code of conduct, including the prohibition on making derogatory remarks, “is
6 This document was attached to Ms. Dennis’s proposed SAC before she revised it to
withdraw the Prior Restraint claim. (See Doc. 74-1.)
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ultimately a decision made by the Council body,” and the “Council is the final arbiter of
its own Rules.” (Id.) Ms. Dennis cannot assert retaliation based on a memorandum that
takes no action against her.
Ms. Dennis also claims that she was prohibited from communicating directly with
hundreds of Rochester City employees, whereas other Council members were not so
restricted. (Doc. 82-1 ¶ 27(a).) But an action only qualifies as “adverse” if it “prevents an
elected official from doing her job or otherwise prevents her from enjoying the benefits
and privileges that accompany her public office.” Temple, 2023 WL 8934916, at *4 (citing
Boquist v. Courtney, 32 F.4th 764, 775 (9th Cir. 2022).) Here, the code of conduct itself
contains a blanket proscription on the type of interactions Ms. Dennis spotlights:
“Generally, all interactions with staff members should flow through the City
Administrator.” (Docs. 80-1 at 13; 80-2 at 16.) Ms. Dennis would be hard pressed to assert
she would be unable to do her job if she followed the rules applicable to all Council
members, and no reasonable jury could find that assertion merited relief.
Finally, Ms. Dennis asserts that she suffered materially adverse action by being
banished from Council meetings on several occasions. (Doc. 82-1 ¶ 27(b).) Defendants do
not address this allegation specifically, other than to assert that a legislative body has the
inherent power to expel a member. (Docs. 79 at 11-15; 88 at 15-16.) That is true. See
Monserrate v. New York State Senate, 599 F.3d 148, 155-56 (2d Cir. 2010). But having the
power to take certain action for a legitimate purpose does not include the authority to take
that same action for an unconstitutional purpose. The salient question is whether that
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action—alleged to be taken in retaliation for protected speech—was so material that it
would chill the speech of an elected official of ordinary firmness.
The Court’s analysis here is guided by Wilson, as well as the Ninth Circuit’s
decision in Boquist. Wilson, recall, involved whether a standalone censure of an elected
official was actionable absent evidence of “expulsion, exclusion, or any other form of
punishment.” 595 U.S. at 482. On this narrow question, the Court found no viable First
Amendment claim. Id. at 482-83. But the Court also noted the historical “differences
between exclusion and censure,” suggesting the former may be actionable while the latter
was not. Id. at 481 (citing Powell v. McCormack, 395 U.S. 486, 527-29 (1969)).
Boquist involved an Oregon state senator’s First Amendment retaliation claim. In
June 2019, Mr. Boquist made several provocative statements on the senate floor and to the
press. 32 F.4th at 772-73. Days later, a special committee of the senate imposed restrictions
on Mr. Boquist’s presence at the State Capitol, requiring him to give 12 hours of notice
before visiting. Id. at 773. Mr. Boquist filed suit, alleging that the 12-hour notice rule was
imposed in retaliation for his protected speech. Id. In finding a plausible claim, the Ninth
Circuit endorsed Wilson’s historical distinction between censure and expulsion: “unlike
censure, the exercise of power to bar an elected official from the legislative chamber
(whether temporarily or permanently) is not a ‘long exercised’ means of responding to
protected speech.” Id. at 782 (quoting Wilson, 595 U.S. at 475). Testing that historical
distinction by today’s standards, the Ninth Circuit confirmed that a 12-hour advance notice
requirement qualified as “materially adverse action.” Id. at 783. An advance notice
requirement eliminated the possibility of spontaneous speech and significantly impeded
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the ability to respond to urgent political issues. Id. In short, the 12-hour notice requirement
prevented Mr. Boquist from doing his job, enough to chill the speech of an elected official
of ordinary firmness. Id. at 783-84.
Boquist is like the banishment Ms. Dennis alleges that she suffered in retaliation for
her protected speech. Ms. Dennis claims that on “several occasions” she was “evicted from
City Council meetings during the proceedings.” (Doc. 82-1 ¶ 27(b).) An elected official
cannot do their job if they are not allowed to participate in voting meetings of the elected
body. At least as it relates to actionable retaliation, here Ms. Dennis alleges enough to
demonstrate Defendants’ conduct was “materially adverse” for First Amendment purposes.
The Court next considers the viability of that claim for each Defendant.
2. The Court will treat Ms. Dennis’s proposed First Amendment retaliation claim
as one pursued against Ms. Norton and Mr. Keane in their official and
individual capacities.
While it is clear that Ms. Dennis seeks to pursue her new First Amendment
retaliation claim against Ms. Norton and Mr. Keane, it is less clear whether she seeks to
sue them in their individual capacities, their official capacities, or both. On one hand, the
case caption indicates that she is seeks to sue both people in their individual and official
capacities. (Id. at 1.) On the other, her proposed First Amendment retaliation claim—Count
X—does not specify capacity, whereas her previously-dismissed First Amendment
retaliation claim—Count IX—did. (Compare Doc. 82-1 ¶ 53 with id. ¶¶ 63-71.)
In the past, Ms. Dennis’s failure to clearly state the Defendants’ capacity for her
First Amendment retaliation claim might have led this Court to conclude that it was an
official capacity only claim. See Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th
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Cir. 1995). Recently, however, the Eighth Circuit has abandoned the so-called “clear
statement” rule, instructing courts to determine a defendant’s capacity based on the course
of proceedings. See S.A.A. v. Geisler, 127 F.4th 1133, 1138-41 (8th Cir. 2025) (en banc).
Here, the course of proceedings suggests—albeit not conclusively—that Ms. Dennis
intends to sue Ms. Norton and Mr. Keane in both their individual and official capacities.
To start, that is how she has captioned the case. Her complaint does little to differentiate
between these Defendants’ capacities or describe the type of conduct that would support
an official-capacity claim against either of these Defendants. See Kentucky v. Graham, 473
U.S. 159, 165-67 (1985) (describing differing liability standards for individual and official
capacity claims); Elder-Keep v. Aksamit, 460 F.3d 979, 986-87 (8th Cir. 2006). The Court
addresses the impact of this, as a matter of pleading, further below. But as to individual
capacity claims, Defendants’ opposition briefing includes the assertion of qualified
immunity defenses for both individual Defendants (Doc. 79 at 16-17), something only
available to an official sued in their individual capacity. S.A.A., 127 F.4th at 1140. As such,
the Court will analyze Ms. Dennis’s proposed First Amendment retaliation claim as one
pursued against Ms. Norton and Mr. Keane in both their individual and official capacities.
a. Individual capacity Defendants have absolute immunity from Ms. Dennis’s
claim she that was banished from City Council meetings in retaliation for
her protected speech.
“Local officials sued in their individual capacities are entitled to legislative
immunity for their legislative activities.” Sorcan v. Rock Ridge Sch. Dist., 131 F.4th 646,
650 (8th Cir. 2025). This immunity is not qualified; it is absolute, protecting officials from
suit for all actions in the sphere of legitimate legislative activities. See Bogan v. Scott-
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Harris, 523 U.S. 44, 54 (1998). The act of voting alone does not determine whether an
official was acting in a legislative capacity. Brown v. Griesenauer, 970 F.3d 431, 437 (8th
Cir. 1992). Rather, courts must focus on the nature of the act. Young v. Mercer County
Comm’n, 849 F.3d 728, 733 (8th Cir. 2017). Actions taken in “a field where legislators
traditionally have power to act” will be more likely deemed legislative. Id. at 734 (quoting
Bogan, 523 U.S. at 56).
By the allegations and evidence before this Court, Ms. Dennis’s banishment from
Council meetings appears to be a legislative act. An elected body’s ability to discipline its
own member was understood by “Americans at the founding,” tracing back well before
ratification of the Constitution. Whitener v. McWatters, 112 F.3d 740, 744 (4th Cir. 1997).
Because legislative bodies are historically “left to police their own members . . . it would
be strange to hold that such self-policing is itself actionable in court.”7 Id.
The City of Rochester’s expulsion protocol further confirms that Ms. Dennis’s
alleged “eviction” during City Council meetings was legislative in nature. Ms. Dennis’s
SAC contains scant detail about when, or how, she was removed from meetings.8 But
documents properly before the Court set out the framework. A City Council member
deemed in violation of the code of conduct may be disciplined, up to and including
7 It is this self-policing aspect that distinguishes Ms. Dennis’s case from those like Rinne
v. Camden County, 140 F.4th 470, 472 (8th Cir. 2025), where the court held legislative
immunity would not insulate the votes of two county commissioners banning the plaintiff
from county property. Mr. Rinne was a private individual, not a fellow elected official. See
Rinne v. Camden County, 21-cv-4076, 2024 WL 3203317, at *1 (W.D. Mo. June 27, 2024).
8 Ms. Dennis invites the Court to determine this itself through watching a YouTube video
purporting to show “such a removal.” (Doc. 81 at 10 n.2.) The Court declines to do so. See
Fed. R. Evid. 201(b).
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“expulsion from the meeting at which the conduct is occurring.” (Docs. 80-1 at 6; 80-2 at
7.) Discipline is subject to challenge and must be determined by a majority vote of the City
Council. (Docs. 80-1 at 6; 80-2 at 7; see also Doc. 74-1 at 1-2 (noting disciplinary decisions
“during the meeting” are made by City Council body as “final arbiter”).) Thus, a
disciplinary matter is presented, may be challenged, and (if challenged) is effective only if
supported by majority vote of the Council. This is the type of action for which absolute
immunity should attach.9
b. Ms. Dennis has inadequately pled her official capacity claims against the
individual Defendants.
The Court next turns to Ms. Dennis’s claims against Ms. Norton and Mr. Keane in
their official capacities as Mayor and Council member, respectively. Generally, a suit
against a municipal official in their official capacity is a suit against the official’s public
office, no different than a suit against the municipality itself. Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 (1989). There is an important caveat to this analysis, however,
leading the Court to recommend denial of Ms. Dennis’s motion to amend to add official
capacity claims against Ms. Norton and Mr. Keane.
The Court’s task in analyzing an official capacity claim is to inquire into “the actual
function of the governmental official.” McMillian v. Monroe County, Ala., 520 U.S. 781,
785-86 (1997). This makes sense, as a person’s acts in their official capacity are limited to
just that—the capacity of their official position. Mr. Keane was a Council member, but
9 To the extent that the Council’s action could be considered adjudicative rather than
legislative, Ms. Norton and Mr. Keane would still be entitled to judicial immunity, which
is also absolute. Brown, 970 F.2d at 436-38.
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there is no suggestion in the record that by virtue of his official capacity (that is, his status
as a single member of the Council) he could have unilaterally acted to remove Ms. Dennis
from Council meetings. For that, he needed the vote of a majority of the Council. (Docs.
80-1 at 6; 80-2 at 7.) Likewise, there is no indication Ms. Norton’s official position as
Mayor played any role in Ms. Dennis’s expulsion from meetings whatsoever, and all
documents appropriately considered suggest the decision rested solely with the Council,
not the Mayor. (Accord Doc. 74-1; City of Rochester City Charter § 5.06, found at
https://library.municode.com/mn/rochester/codes/code_of_ordinances?nodeId=PTICH_
CHVCOCO_S5.06COAU (conferring disciplinary authority over City Council members
solely to City Council).) This appears just as true now as it did when the Court considered
Ms. Dennis’s censure based First Amendment claim (which did not include a claim against
the City of Rochester directly). (Docs. 13 at 17-19; 22-2 (March 6, 2023 censure issued on
Council authority to determine its rules and punish its members).) Ms. Dennis has not
established that either Ms. Norton’s or Mr. Keane’s official capacities included the
authority to unilaterally remove her from Council meetings, and as a result her official
capacity claims against these two Defendants fail.
c. Ms. Dennis has adequately pled her First Amendment retaliation claim
against the City of Rochester directly.
The Court now turns to Ms. Dennis’s First Amendment retaliation claim as brought
directly against the City of Rochester. As a municipality, the City of Rochester cannot be
held vicariously liable for the First Amendment violations of its officials. But it may be
held liable for the unconstitutional acts of its official or employees when those acts
implement or execute an unconstitutional policy or custom. Monell v. Dep’t of Soc. Servs.,
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436 U.S. 658, 694 (1978). Policy and custom are not the same thing: a policy typically
involves establishment of a formal course of action by an official with authority to establish
policy; a custom, on the other hand, generally requires a showing of a persistent,
widespread pattern of unconstitutional misconduct, accompanied by proof of (at the least)
deliberate indifference by policymaking officials and some evidence of causation.10 Snider
v. City of Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014); Ware v. Jackson County,
Mo., 150 F.3d 873, 880 (8th Cir. 1998).
Ms. Dennis does not sufficiently allege that the City maintained a custom that led
to First Amendment violations. While the SAC details many aggrievements, there are no
meritorious allegations of widespread constitutional violations, as this Court has now twice
found. Rather, the alleged violations involve a single censure11 and a barebones statement
that Plaintiff was excluded from parts of some council meetings. Without more detail, the
Court is left to speculate about how widespread the alleged misconduct was. But it is
Plaintiff’s burden to plead sufficient allegations to state a claim, not the Court’s task to
guess about what might be. The SAC fails to provide enough information for a reasonable
jury to conclude the City maintained an unofficial custom which violated Ms. Dennis’s
constitutional rights in a manner that would invoke Monell liability.
Finally, the Court turns to whether Ms. Dennis has adequately pled that her First
10 Courts sometimes identify a separate failure to train theory as a basis for Monell liability.
See, e.g., Corwin v. City of Indep., Mo., 829 F.3d 695, 700 (8th Cir. 2016). However, such
a theory is merely an extension of the traditional “policy or custom” bases for lability, fixed
on a particular postulation. City of Canton, Oh. v. Harris, 489 U.S. 378, 388-92 (1989).
11 While this Court previously found the March 6, 2023 censure of Plaintiff was not
actionable (Doc. 38 at 37-38), it may consider the allegations of misconduct to determine
whether Ms. Dennis can establish a widespread pattern of constitutional violations.
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Amendment rights were violated by an official policy of the City of Rochester. Here, she
has. “Official municipal policy includes the decisions of a government’s lawmakers, the
acts of its policymaking officials, and practices so persistent and widespread as to
practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). A single
decision of a legislative body may represent an act of official government policy, if the
decisionmaker has final authority over the action. Pembaur v. City of Cincinnati, 475 U.S.
469, 480-83 (1986); Soltesz v. Rushmore Plaza Civ. Ctr., 847 F.3d 941, 946 (8th Cir. 2017).
The “official policy” of the City here was Ms. Dennis’s removal during some
Council meetings. By Defendants’ own documents, her expulsion could only occur upon a
majority vote of the Council itself. (Docs. 80-1 at 6; 80-2 at 7; see also Rochester City
Charter § 5.06.) The Council’s decision is final, too. (Docs. 80-1 at 6; 80-2 at 7; 74-1; see
also Rochester City Charter § 5.06.) And Ms. Dennis adequately alleges she suffered this
discipline in response to her constitutionally protected speech. (Doc. 82-1 ¶ 27.) In fact,
she asserts she suffered the same retaliation repeatedly. Compare Stockley v. Joyce, 963
F.3d 809, 823 (8th Cir. 2020) (city attorney’s “individual charging decision based on a
particular set of facts” did not constitute municipal policy). As such, Ms. Dennis’s alleged
removal from Council meetings in retaliation for exercising her First Amendment rights is
sufficient to state a municipal liability claim directly against the City of Rochester.
It is worthwhile to take stock of what the Court concludes, and what it does not. The
Court concludes Ms. Dennis has stated a viable First Amendment retaliation claim against
the City of Rochester. That is based on the allegations in the SAC and evidence embraced
by the SAC. It is not proof, and the Court does not conclude that such a claim will be borne
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out by evidence sufficient to allow a reasonable jury to find in Ms. Dennis’s favor. That
decision is for another day. But at this stage of the proceedings, the Court suggests the
allegations in the SAC are enough to move forward with a First Amendment retaliation
claim against the City of Rochester.
RECOMMENDATION
Based on all of the files, records, and proceedings above, IT IS RECOMMENDED
that:
1. Plaintiff Molly L. Dennis’s Second Motion to Amend her Complaint (Doc.
73) be GRANTED IN PART and DENIED IN PART as follows:
a. Plaintiff’s motion be granted solely as it relates to her proposed First
Amendment retaliation claim (Count X) against Defendant City of
Rochester; and
b. Plaintiff’s motion be denied in all other respects.
Date: January 22, 2026 s/Douglas L. Micko
DOUGLAS L. MICKO
United States Magistrate Judge
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 findings and recommendations within 14 days
after being served with 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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