CASE 0:18-cv-00510-SRN-HB Document 68 Filed 05/17/18 Page 1 of 13

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

BROCK FREDIN,
Case No. 18-cv-510-SN-HB
Plaintiff,

--against--
MEMORANDUM OF LAW
ELIZABETH A. CLYSDALE,
DAVID E. MCCABE,
GRACE ELIZABETH MILLER,
CATHERINE MARIE SCHAEFER,
CORRUPT U.S. ATTORNEY,

Defendants.

Plaintiff Brock Fredin (“Plaintiff”), proceeding pro se, hereby submits this memorandum

of law in support of his May 16, 2018 motion seeking leave to file a second amended complaint

based on newly discovered evidence and other ancillary relief:

INTRODUCTION

Defendants in this matter have moved to dismiss Plaintiff’s Amended Complaint. Their

motions to dismiss were filed on April 25, 2018. Recently, Plaintiff has discovered new evidence

that substantiates his claims asserted in this action. More importantly, the new evidence negates

the defenses asserted by Defendants in their respective motions to dismiss.

Given this new development, Plaintiff respectfully requests that the Court grant him

additional time to file a Second Amended Complaint in this action. As discussed below, the

incorporation of this new evidence into a Second Amended Complaint is critical to Plaintiff’s

claims and directly undermines the defenses asserted by Defendants in their motions to dismiss.

Plaintiff further requests that the Court hold Defendants’ pending motions to dismiss in abeyance

pending a determination of this motion.

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GOVERNING STANDARD

Leave to amend a complaint shall be given “freely … when justice so requires.” Fed. R.

Civ. P. 15(a)(2). “If the underlying facts or circumstances relied upon by a plaintiff may be a

proper subject of relief, he ought to be afforded an opportunity to test his claims on the merits.”

Foman v. Davis, 371 U.S. 178, 182 (1962).

This is particularly so where a “document filed pro se is to be liberally construed … and a

pro se complaint, however, inartfully pleaded, must be held to a less stringent standard than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In other words, “[a]

pro se plaintiff who brings a civil rights action should be freely afforded an opportunity to amend

his complaint.” Witte v. Culton, 2012 WL 5258789, at *3 (E.D. Mo. Oct. 24, 2012). The

determination as to whether to grant leave to amend is entrusted to the sound discretion of the trial

court. See Niagara of Wis. Paper Corp. v. Paper Indus. Union Mgmt. Pens. Fund, 800 F.2d 742,

749 (8th Cir. 1986).

Furthermore, a motion to amend a complaint “render[s] moot” a pending motion to dismiss.

Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 956 (8th Cir. 2002).

ARGUMENT

Over the past two months, Plaintiff has discovered new evidence that substantiates his

claims asserted in this action as well as negates the defenses proffered by Defendants’ in their

respective motions to dismiss. Consequently, the incorporation of this new evidence into

Plaintiff’s pleadings is critical. Plaintiff should be afforded an opportunity to seek leave to file a

Second Amended Complaint in this action and to have his claims tested on the merits based on

this newly discovered evidence. Plaintiff therefore requests that the Court stay the pending

motions to dismiss and afford him time to seek leave to file a Second Amended Complaint.

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I. DEFENDANT MCCABE HAS PROFFERED EVIDENCE TO

CORROBORATE PLAINTIFF’S CLAIMS THAT HE ABUSED PROCESS
WITH RESPECT TO THE APRIL 28, 2017 SEARCH WARRANT

In the Amended Complaint, Plaintiff asserts a Section 1983 claim against Defendant David

McCabe alleging that he abused process in seeking the issuance and executing the April 28, 2017

“no knock” search warrant executed on Plaintiff’s residence. In the documents provided by

Defendant McCabe in support of his motion to dismiss, Detective Traci Hall of the Hudson

Wisconsin Police Department repeatedly asserts that the purpose of the search warrant – as

represented to her by Defendant McCabe – was to obtain information pertaining to a criminal

investigation into Defendant Grace Miller’s allegations that Plaintiff violated the harassment

restraining order issued against him in the Miller v. Fredin matter.1 (See Fredin Decl. at Ex. 1.)

Never once does Detective Hall assert that Defendant McCabe was seeking the search warrant for

any other purpose.

However, in support of his motion to dismiss filed in this action, Defendant McCabe filed

an exhibit corroborating Plaintiff’s claim that he was actually using the April 28, 2017 search

warrant for another improper ulterior purpose. Specifically, Defendant McCabe wrote in a

“Supplemental Offense / Incident Report” describing the execution of the April 28, 2017 search

warrant the following:

(See McCabe Aff. at Ex. L.) The problem with Detective McCabe’s statement above is the phrase

“other pending cases.” (See id.)

1
A harassment restraining order was issued against Plaintiff on in favor of Defendant
Grace Miller by the Ramsey County District Court in the matter Miller v. Fredin, No. 62-HR-CV-
16-46.
3
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Plaintiff is aware of no other “pending cases” that involved him during the time of the

application for the April 28, 2017 search warrant. Indeed, no other “pending cases” were

mentioned in Detective Hall’s affidavit filed in support of the application for the April 28, 2017

search warrant. (See Fredin Decl. at Ex. 1.) And, to this day, Detective McCabe has never

specified what the other “pending cases” were that related to his request for a “no-knock” search

warrant on his residence.

Plaintiff believes that what Detective McCabe was actually referring to when references

“other cases” is the harassment restraining order (“HRO”) proceeding filed Ramsey

County District Court by Defendant Corrupt U.S. Attorney on April 14, 2017 captioned

Corrupt U.S. Attorney v. Fredin, No. 62-HR-CV-17-23. At that time, Defendant Corrupt

U.S. Attorney was an Assistant City Attorney for the City of Minneapolis. When the

Hudson Wisconsin Police Department and Defendant McCabe executed the search warrant

on Plaintiff’s residence on April 28, 2017, Defendant McCabe was also personally present

when Plaintiff was served copy of Defendant Corrupt U.S. Attorney's HRO summons and

petition in Corrupt U.S. Attorney v. Fredin during the raid. (See Fredin Decl. at Ex. 2.)

Furthermore, during the evidentiary hearing Corrupt U.S. Attorney v. Fredin, Defendant

Corrupt U.S. Attorney testified that she had extensive communications with Defendant

McCabe about Plaintiff and her HRO petition, which apparently took place prior to Defendant

McCabe seeking the April 27, 2017 search warrant.

This new evidence, coming straight from Defendant McCabe’s own official notes, that

the April 28, 2017 search warrant was to “preserve evidence … [in] other pending cases”

substantiates the fact that Defendant McCabe used the search warrant for the unlawful

collateral purpose of attempting to procure evidence on behalf of Defendant Corrupt U.S.

Attorney in her civil HRO proceeding against Plaintiff. This constitutes an abuse of process.

See U.S. Steel LLC v. Tieco, Inc., 261 F.3d 4

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1275, 1291 (11th Cir. 2011) (allowing abuse of process claim to proceed where police used “a

criminal search warrant to gather information for a civil suit against the plaintiffs”); see also

Watson v. City of Kansas City, Kan., 185 F. Supp.2d 1191, 1208 (D.Kan. 2001) (holding that

plaintiffs stated claim of abuse of process against defendant where it alleged that city officials gave

false and misleading testimony in support of search warrant). Such an abuse of process is

actionable under Section 1983. See Felker v. Christine, 796 F.Supp. 135, 142 (M.D.Pa. 1992)

(“An abuse of process claim is actionable under [Section] 1983”).

Given that Defendant McCabe’s statement above was just disclosed to Plaintiff just a few

days ago, Plaintiff requests that the Court provide him a brief period of time to incorporate this

new evidence into a proposed Second Amended Complaint.2

II. PLAINTIFF HAS DISCOVERED EVIDENCE TENDING TO SUGGEST

THAT REFREEE CLYSDALE ENGAGED IN EXTRAJUDICIAL
ACTIONS EXTINGUSHING ANY CLAIM TO JUDICIAL IMMUNITY

In the Amended Complaint, Plaintiff asserts Section 1983 claims against Defendant

Elizabeth Clysdale (“Referee Clysdale”). These claims stem from her actions as a presiding

judicial officer in three separate harassment restraining order (“HRO”) cases filed against

Plaintiff in Ramsey County District Court by Defendants Grace Miller, Catherine Schaefer and

Corrupt U.S. Attorney: Miller v. Fredin, No. 62-HR-CV-16-46; Schaefer v. Fredin, No. 62-HR-

CV-16-411 and Corrupt U.S. Attorney v. Fredin, No. 62-HR-CV-17-23. In each of these

cases, Referee Clydesdale summarily issued harassment restraining orders against Plaintiff and

denied him a full and fair

2
Defendant McCabe asserts that the Court should abstain from entertaining this matter
based on Younger abstention. However, Plaintiff does not seek to enjoin the state criminal
proceeding currently asserted against him based on the allegation that he violated the harassment
restraining order issued against him on behalf of Defendant Grace Miller. Moreover, Plaintiff is
aware of no Younger case law that precludes this Court from hearing Plaintiff’s claim that
Defendant McCabe obtained an search warrant for an unlawful ulterior motive to procure evidence
in an unrelated civil proceeding.
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opportunity to contest the allegations made against him by the three women. Moreover,

Plaintiff’s main contention in the Amended Complaint is that Defendants Miller, Schaefer and

Corrupt U.S. Attorney have actively colluded in filing the three successive HRO cases against

him to be subsequently used as fodder to publicly disparage and defame Plaintiff on Defendant

Corrupt U.S. Attorney's anonymous @[REDACTED] Twitter account.3 In response to

Plaintiff’s claims, Referee Clysdale has asserted judicial immunity. (See Def. Clydesdale

Motion to Dismiss at Dkt. No. 40.)

On April 5, 2018, Plaintiff obtained several bogus police reports filed by Defendant

Schaefer in response to a Freedom of Information Act Request. The police reports made by

Schaefer falsely assert inter alia that Plaintiff sent various text messages to her in late 2017.4

(See Fredin Decl. at Ex. 3.) In one of the text messages attached to the police report, Defendant

Schaefer made the following statement:

3
With respect to the Schaefer v. Fredin matter, Defendant Schaefer sought and obtained a
harassment restraining order from Referee Clysdale based on one e-mail message sent from
Plaintiff requesting that she remove a fake sex ad she posted online about Plaintiff. With respect
to Corrupt U.S. Attorney v. Fredin, Defendant Corrupt U.S. Attorney sought and obtained a
harassment restraining order from Referee Clysdale even though Plaintiff had never directly
communicated with her and despite the fact that Defendant Corrupt U.S. Attorney posted over
50 disparaging and defamatory tweets about Plaintiff between February 2017 and April
2017, including false rape allegations and organized a false “hit piece” in the City Pages
using Defendant Schaefer and Miller’s contrived text message claims that have since been
proven irrefutably false through independent law enforcement investigation.

Recently, in a first of its kind ruling in Minnesota, Magistrate Judge Noel recommended
that Defendant Corrupt U.S. Attorney's motion to dismiss Plaintiff’s intentional
infliction of emotional distress based on Defendant Corrupt U.S. Attorney posting false
rape allegations about Plaintiff on her @[REDACTED] Twitter account be denied. See
Fredin v. Corrupt U.S. Attorney, Case No. 17-cv-3058 at Dkt. No. 30.
4
At a May 9, 2018 contempt hearing in Schaefer v. Fredin, a letter from the Tara Patet, the
Supervising Attorney for the Domestic Violence Prosecution Unit for the City of St. Paul, was
admitted to evidence. (See Fredin Decl. at Ex. 4.) The letter confirmed there was no evidence that
Plaintiff sent the text messages appended to Defendant Schaefer’s police report.
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(See id. at 21.) Defendant Schaefer admitted to sending this text message during a May 9, 2018

contempt proceeding in the Schaefer v. Fredin matter.

The above text message from Defendant Schaefer unequivocally asserts that

Referee Clysdale had an extrajudicial relationship with Defendant Corrupt U.S. Attorney.

This extrajudicial relationship apparently extended through Defendant Corrupt U.S.

Attorney to Defendants Miller and Schaefer as well. Most importantly, though,

Defendant Schaefer’s text message appears to substantiate the claim that Referee Clysdale

was part of the above-mentioned conspiracy to disparage and defame Plaintiff and that her

decisions to issue the harassment restraining orders against Plaintiff were, at minimum,

motivated by this extrajudicial relationship with Defendants Miller, Schaefer and Corrupt U.S.

Attorney and to assist them in furtherance of their campaign against Plaintiff.

It is true that Referee Clysdale has absolute immunity for her actions undertaken in her

judicial capacity. However, if it is true that Referee Clysdale was part of the conspiracy with

Defendants Miller, Schaefer and Corrupt U.S. Attorney to disparage and defame Plaintiff,

Referee Clysdale would be liable for the extrajudicial acts of her co-conspirators. See Livers v.

Schenck, 700 F.3d 340, 360 (8th Cir. 2012) (holding that “each [person] is jointly liable for his or

her co-conspirators’ acts in furtherance of the conspiracy”). This would necessarily include

Defendants’ Miller, Schaefer and Middlecamp’s tortious actions against Plaintiff, such as their

subsequent acts abusing

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process in connection with the HRO proceedings and orders, as well as Defendant Middlecamps’

defamatory statements published on her @[Redacted] Twitter account about Plaintiff.

It must be noted that on numerous occasions, Defendant Corrupt U.S. Attorney used the

harassment restraining orders issued by Referee Clysdale to disparage and defame

Plaintiff on her @[REDACTED] Twitter account. This included the following tweet:

REDACTED
¶¶¶¶¶

¶¶¶¶¶
REDACTED

(Fredin Decl. at Ex. 5.) If Referee Clysdale was actually part of this conspiracy as Defendant

Schaefer’s text message appears to assert, Defendant Corrupt U.S. Attorney's defamatory

above tweet would necessarily be a foreseeable act in furtherance of the conspiracy. Referee

Clysdale would not be entitled to judicial immunity should Plaintiff assert a claim of defamation.

Moreover, Referee Clysdale has recently been criticized by a leading First Amendment

scholar, Eugene Volokh, for issuing a facially unconstitutional harassment restraining order

on behalf of Defendant Corrupt U.S. Attorney against Plaintiff. Specifically, Mr. Volokh wrote:

[Referee Clysdale] expressly ordered:

[Fredin] shall not harass [Corrupt U.S. Attorney] …

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Writings or other communications by [Fredin] which are made available for

public hearing or viewing and which contain addresses, telephone numbers,
photographs or any other form of information by which a reader
may contact, identify or locate [Corrupt U.S. Attorney] are acts of
harassment and are prohibited by this order. Any communications made
by [Fredin] under an identity or auspices other than his true name
and which refer to [Corrupt U.S. Attorney] are acts of harassment and
are prohibited regardless of the truth or falsity of any statement made
about [Corrupt U.S. Attorney].
This means that

1. Fredin may not publicly identify Corrupt U.S. Attorney as the

author of the @[REDACTED] account …
2. Fredin may not criticize Corrupt U.S. Attorney anonymously …
3. Fredin may not post Corrupt U.S. Attorney's photograph, though Corrupt
U.S. Attorney had posted Fredin’s.
4. It is possible – though not completely clear – that Fredin may not even post
Middlecamp’s full name or the fact that she works for the Minneapolis City
Attorney’s Office ….

I think the [harassment restraining] order can’t be squared with the First
Amendment. Identifying an anonymous activist as the author of various
publications is constitutionally protected. Posting people’s photograph is
constitutionally protected.

Indeed, even trying to get people fired based on their speech is constitutionally
protected (see Moore v. Hoff (Minn Ct. App. 2012)) – I don’t usually care for this
practice, but it’s pretty common these days, and it’s protected by the
First Amendment. Again, an order simply barring Fredin from e-mailing Corrupt
U.S. Attorney, or publishing true threats against her, or perhaps libeling her,
might well have been constitutional. But the order here is not.

(See “Man Forbidden from Identifying Twitter Shaming Activist, Court Order Seems to Say,” by

Eugene Volokh available at https://reason.com/volokh/2018/05/08/minnesota-court-apparently-

orders-man-no.) Recently, Defendant Corrupt U.S. Attorney brought a contempt

proceeding against Plaintiff alleging that he violated the harassment restraining order issued by

Referee Clysdale by publicly identifying her on the website

www.catherineschaefer.net or www.attorneycorruptusattorney.com. (See Fredin Decl. at

Ex. 6.) In that proceeding, Defendant Corrupt U.S. Attorney asked that Plaintiff be jailed for

violating the unconstitutional harassment restraining

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order issued by Referee Clysdale.5 (See id.) As Mr. Volokh astutely points out, this is

constitutionally protected behavior. While Referee Clysdale would be protected by absolute

immunity for issuing the unconstitutional harassment restraining order, she would not be entitled

to judicial immunity for Defendant Corrupt U.S. Attorneys' acts using the harassment

restraining order constituting an abuse of process – such as bringing the recent contempt

proceeding – if Referee Clysdale was in fact part of the conspiracy to inflict harm on Plaintiff as

Defendant Schaefer’s text message appears to confirm.

Thus, in light of this new evidence, Plaintiff requests leave to file a Second Amended

Compliant to incorporate this information into his pleading allegations and to assert new claims

based on these new facts. These new claims against Referee Clysdale would include, but would

not be limited to, defamation, abuse of process and fraud. Defendant Schaefer’s admitted text

message above substantiating a conspiracy with Referee Clysdale to inflict harm on Plaintiff would

facially support these claims at this pleading stage.6 Indeed, this is undoubtedly a unique situation.

Rarely do you have a litigant file a police report in which they make statements effectively

5
Judge Teresa Warner found that Plaintiff violated the unconstitutional harassment
restraining order issued by Referee Clysdale on behalf of Defendant Corrupt U.S. Attorney, but did not
order his incarceration. Rather, during the proceedings, Defendant Corrupt U.S. Attorney (and her
husband David Middlecamp) falsely asserted to a courtroom deputy that Plaintiff directed statements
at her yelling “how would you like if I ordered a swat raid on your house.” Plaintiff was arrested on a
criminal contempt charge for violating the unconstitutional harassment restraining order issued by
Referee Clysdale based on Defendant Middlecamp’s false allegations to the courtroom deputy.
Unfortunately for Defendant Corrupt U.S. Attorney, Plaintiff has audio evidence proving that
Defendant Corrupt U.S. Attorney lied to the courtroom deputy concerning his statements allegedly made
to her.
6
Plaintiff’s claim would of course be subject to obtaining further evidence to support
these claims in discovery. Plaintiff should be afforded the opportunity to explore the
veracity of Defendant’s Schaefer’s statements in her text message, whether there was an
extrajudicial relationship between Referee Clysdale and Defendant Corrupt U.S. Attorney and,
if so, the extent of that relationship to the extent it pertains to Plaintiff.
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admitting to colluding with a sitting judge to issue unlawful and/or improper orders to ensure that

a litigant “go[es] down further than [he] imagined.”

Furthermore, it must be noted that Plaintiff has not had the opportunity to fully research all

potential claims that could be asserted based on this evidence as well as their viability. Plaintiff is

not a lawyer and has no formal legal training. Plaintiff therefore requests that the Court provide

him two (2) weeks to file a proposed Second Amended Complaint with the Court.

III. DEFENDANT SCHAEFER’S TEXT MESSAGE SUBSTANTIATES

PLAINTIFF’S CLAIMS THAT DEFENDANTS MILLER, SCHAEFER
AND CORRUPT U.S. ATTORNEY ENGAGED IN A CONSPIRACY TO
DEFAME HIM AND ABUSE PROCESS WITH THE HRO
PROCEEDINGS
Defendant Schaefer’s text message referenced above additionally corroborates Plaintiff’s

claims asserted in this action that Defendants Miller, Schaefer and Corrupt U.S. Attorney were

engaged in a conspiracy to inflict harm on Plaintiff. The three women acted in furtherance of

this conspiracy by launching a defamation campaign on the @[REDACTED] Twitter account

spear-headed by Defendant Corrupt U.S. Attorney, which repeatedly referenced the harassment

restraining orders issued by Referee Clysdale. Additionally, Defendants Schaefer and Corrupt

U.S. Attorney acted in furtherance on this conspiracy by filing knowingly false police reports (as

evidenced by Defendant Schaefer’s police report referenced herein), bogus successive “pile-on”

HRO proceedings after Miller v. Fredin as well as by filed repeated contempt petitions

attempting to unlawfully get Plaintiff incarcerated. These actions constituted fraud and an

abuse of process. Consequently, Plaintiff requests that the Court grant him a brief period of time

to incorporate this new evidence from Defendant Schaefer’s false police report into a proposed

Second Amended Complaint.

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IV. PLAINTIFF WILL USE THE OPPORTUNITY TO FILE A SECOND

AMENDED COMPLAINT TO REDUCE THE CLAIMS ASSERTED AND
THE LENGTH OF THE COMPLAINT

Plaintiff previously sought to file a Second Amended Complaint on March 28, 2018. (See

Dkt. No. 14.) The Court denied Plaintiff’s motion for leave to file a second amended complaint

on April 10, 2018 stating that the proposed second amended complaint was “unnecessarily prolix

and complex.” (See Dkt. No. 33). Plaintiff would heed an opportunity to file a Second Amended

Complaint to drastically reduce the length and complexity of the operative complaint in this action.

Additionally, a large number of Plaintiff’s claims in his Amended Complaint are simply not viable,

which he now realizes. Should the Court allow Plaintiff to file a Second Amended Complaint,

Plaintiff will reduce the number of claims asserted and focus on only those that have a viable

chance of withstanding a Rule 12(b)(6) motion.

CONCLUSION

For the reasons set forth above, Plaintiff respectfully requests that the Court hold the

pending motions to dismiss in abeyance and allow him two (2) weeks to file a motion for leave to

file a second amended complaint incorporating the newly discovered evidence discussed above.

Dated: May 16, 2018

Hudson, WI

/s/ Brock Fredin

______________________________
Brock Fredin
1905 Iris Bay
Hudson, WI 54016
(612) 424-5512 (tel.)
brockf12@gmail.com
Plaintiff, Pro Se

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CERTIFICATE OF SERVICE

I hereby certify that on the 16TH day of May, 2018 I caused the foregoing Plaintiff’s
Memorandum of Law to be filed with the Clerk of the Court using the CM/ECF system, which
will then serve such filing to the following individuals registered to use the CM/ECF system in
this matter. I will provide personal process service of to the following:

Elizabeth A. Clydale
David E. McCabe
Grace Elizabeth Miller
Catherine Marie Schaefer
Corrupt U.S. Attorney

___ /s/ Brock Fredin_____________

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

BROCK FREDIN LR 7.1(f) & LR 72.2(d)

CERTIFICATE OF COMPLIANCE
Plaintiff(s)

v. Case Number: 0:18-cv-510-SRN-FLN

ELIZABETH A. CLYSDALE,
DAVID E. MCCABE,
GRACE ELIZABETH MILLER,
CATHERINE SCHAEFER,
CORRUPT U.S. ATTORNEY,

Defendants.

I, Brock Fredin certify that the

☒ Memorandum titled: MEMORANDUM OF LAW

complies with Local Rule 7.1(f).

or

Objection or Response to the Magistrate Judge’s Ruling complies with Local Rule 72.2(d).

I further certify that, in preparation of the above document, I:

☒ Used the following word processing program and version: MICROSOFT WORD 2016 v.16
and that this word processing program has been applied specifically to include all text,
including headings, footnotes, and quotations in the following word count.
or

Counted the words in the document.

I further certify that the above document contains the following number of words: 3320________

Date: May 16th, 2017 s/ Brock Fredin_____________________________

Brock Fredin
1905 Iris Bay
Hudson, WI 54016
(415) 283-8366
CASE 0:18-cv-00510-SRN-HB Document 68-1 Filed 05/17/18 Page 2 of 2

brockf12@gmail.com