White v. Dayton et al
Filing
19
ORDER granting 2 Application to Proceed in District Court without Prepaying Fees or Costs. See Order for Additional details. (Written Opinion) Signed by Magistrate Judge Dulce J. Foster on 1/3/2023. (MEH)
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 1 of 40
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 11-cv-3702 (NEB/DJF)
Ryan J. White,
Plaintiff,
v.
Governor Mark Dayton, et al.,
Defendants.
Case No. 11-cv-3714 (NEB/DJF)
Gary P. Scott,
Plaintiff,
v.
Governor Mark Dayton, et al.,
Defendants.
Case No. 11-cv-3733 (NEB/DJF)
Darin D. Davidson,
Plaintiff,
v.
Mark Dayton, Governor, et al.,
Defendants.
Case No. 12-cv-0062 (NEB/DJF)
James D. Fries,
Plaintiff,
v.
Governor Mark Dayton, et al.,
Defendants.
1
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 2 of 40
Joseph Allen Hajek,
Case No. 12-cv-0343 (NEB/DJF)
Plaintiff,
v.
Governor Mark Dayton, et al.,
Defendants.
Lloyd Hartleib,
Case No. 12-cv-0344 (NEB/DJF)
Plaintiff,
v.
Governor Mark Dayton, et al.,
Defendants.
Karl Godfrey Stevens,
Case No. 12-cv-0495 (NEB/DJF)
Plaintiff,
v.
Governor Mark Dayton, et al.,
Defendants.
Dale Allen Williams, Sr.,
Case No. 12-cv-0881 (NEB/DJF)
Plaintiff,
v.
Mark Dayton, Governor, et al.,
Defendants.
2
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 3 of 40
INTRODUCTION
This matter is before the Court on eight related lawsuits, all challenging the legality of
conditions at the Minnesota Sex Offender Program (“MSOP”), and all previously stayed during
the pendency of a related class action lawsuit, Karsjens v. Minnesota Department of Human
Services, No. 11-CV-3659 (DWF/TNL) (“Karsjens”). Final judgment has now been entered in
Karsjens. Accordingly, the Court lifted the stay in all related lawsuits, including those now before
the Court.
BACKGROUND
For well over a decade, “clients” of the MSOP—that is, involuntary civil detainees of the
State of Minnesota—have vigorously attacked the legality of conditions at the MSOP. In Karsjens,
a class of plaintiffs consisting of all clients who were then committed at the MSOP, and who were
represented by counsel, pursued numerous claims regarding the lawfulness of conditions at the
MSOP. During the pendency of the Karsjens lawsuit, the Court stayed several dozen other actions
that had been or would be brought in this District by MSOP clients, also attacking the legality of
conditions at the MSOP. Each of the Plaintiffs in the stayed lawsuits was also a member of the
class certified in Karsjens, and some of the claims raised in the individual civil actions duplicated
the claims that were being litigated in Karsjens. Thus, a stay was appropriate because the
resolution of Karsjens would also resolve many of the claims brought in the separate actions.
Although each of the seventy-one cases stayed pending the adjudication of Karsjens was
similar in some respects, the eight cases now before the Court are especially alike. Each of these
eight lawsuits was filed within a short period of time, with the last of the lawsuits filed only a little
more than three months after the first. In each of the eight complaints, the Plaintiff raises precisely
the same twenty-one causes of action challenging the legality of conditions at the MSOP. And
3
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 4 of 40
each of those twenty-one causes of action is premised upon substantially the same factual
allegations. Indeed, each of the complaints used to commence these eight lawsuits is practically
identical, with only the Plaintiffs and a small number of the dozens of defendants changing from
one case to the next. 1
Each of the eight lawsuits also now sits in the same procedural posture. In each case, the
Plaintiff has applied for in forma pauperis (“IFP”) status.
Each of the plaintiffs qualifies
financially for IFP status. But because the plaintiffs have applied for IFP status, their complaints
are subject to substantive preservice review under 28 U.S.C. § 1915(e)(2)(B):
Notwithstanding any filing fee, or any portion thereof, that may have
been paid, the court shall dismiss the case at any time if the court
determines that … the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be
granted; or
(iii) seeks monetary relief against a defendant who is
immune from such relief.
The Court has now conducted the required review of these lawsuits under
section 1915(e)(2)(B) and concludes, for the reasons provided below, that most of the claims
brought in these matters are not viable because the claims are now precluded by Karsjens, the
Plaintiffs have failed to state a claim on which relief may be granted, or for other reasons.
Accordingly, the Court recommends that the non-viable claims be dismissed pursuant to section
1915(e)(2)(B). The Court also grants plaintiffs’ IFP applications with respect to the few remaining
1
Because the eight cases are so substantially alike, for ease of reference the Court will
generally discuss the cases as though they constituted a single lawsuit throughout this Report and
Recommendation. Only when it is necessary to distinguish among the eight cases will the Court
discuss the cases separately, but to be clear, the Court has reviewed all eight of the pleadings
individually.
4
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 5 of 40
claims and direct that service of process be effected on the Defendants in their official capacities
as agents of the State of Minnesota.
DISCUSSION
I.
Section 1915(e)(2)(B) Standard of Review
An IFP application will be denied, and an action will be dismissed, when an IFP applicant
has filed a complaint that fails to state a claim on which relief may be granted. See 28 U.S.C.
§ 1915(e)(2)(B)(ii); Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996) (per curiam). 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 the pleading still must allege sufficient facts to support the claims
advanced. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
A.
Section 1983 Claims
The bulk of the claims in the eight cases proceeding now before the Court arise under
42 U.S.C. § 1983. Plaintiffs allege that Defendants, who—with one exception in each lawsuit—
are employees of the MSOP or state officials tasked with overseeing the MSOP, have violated
their constitutional rights. Plaintiffs bring their section 1983 claims against each Defendant both
in his or her personal capacity and in his or her official capacity as an agent of the State of
5
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 6 of 40
Minnesota. “Personal-capacity suits … seek to impose individual liability upon a government
officer for actions taken under color of state law.” Hafer v. Melo, 502 U.S. 21, 25 (1991). By
contrast, “official-capacity suits ‘generally represent only another way of pleading an action
against an entity of which an officer is an agent.’” Id. (quoting Kentucky v. Graham, 473 U.S. 159,
165 (1985)). “Suits against state officials in their official capacity therefore should be treated as
suits against the State.” Id. The Court will examine Plaintiffs’ section 1983 claims against the
Defendants in their personal capacities separately from the official-capacity claims.
1. Personal-Capacity Claims
In each of the eight lawsuits, Plaintiffs allege that more than two dozen Defendants
violated their constitutional rights under section 1983. Plaintiffs’ section 1983 claims are many
and varied. For example, Plaintiffs allege that policies at the MSOP place unwarranted restrictions
on their freedom of speech (Ground Two) and freedom of religious practice (Ground Seven); that
they have undergone unreasonable searches and seizures (Ground Three); that they have been
denied procedural due process (Ground Eleven); and that they have been subjected to cruel and
unusual punishment during their time at MSOP (Ground Nine). The Court will discuss each of
those claims, and the factual allegations upon which Plaintiffs premise those claims, in greater
detail below in the context of Plaintiffs’ official-capacity claims under section 1983.
Regarding Plaintiffs’ personal-capacity claims: “Liability under § 1983 requires a causal
link to, and direct responsibility for, the deprivation of rights.” Madewell v. Roberts, 909
F.2d 1203, 1208 (8th Cir. 1990). “Accordingly, to succeed on a personal-capacity claim under
§ 1983, a litigant must prove that the specific defendant being sued acted unlawfully himself or
herself.” See Washington v. Craane, No. 18-CV-1464 (DWF/TNL), 2019 WL 2147062, at *2 (D.
Minn. Apr. 18, 2019). Put another way, to adequately plead a claim under section 1983 against
6
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 7 of 40
Defendants in their personal capacities, it is not enough for Plaintiffs to allege in a general sense
that their constitutional rights have been violated. Rather, Plaintiffs must plead factual allegations
that, if later proved true, would establish that the specific person or persons Plaintiffs sue in their
personal capacities violated Plaintiffs’ constitutional rights. And those allegations of personal
involvement must, like all factual allegations, at a minimum be plausible to be entitled to the usual
assumption of truth afforded to factual allegations at the pleading stage. See Twombly, 550
U.S. at 555.
Plaintiffs’ complaints fall short of this plausibility standard with respect to each of the
personal-capacity claims. With very few exceptions, Plaintiffs allege that every single one of the
many Defendants named in the lawsuits personally committed each alleged instance of
malfeasance. For example, one of the Plaintiffs, Ryan J. White, alleges that
[t]he defendants, including specifically, Governor Mark Dayton,
Attorney General Lori Swanson, Cal Ludeman, Lucinda Jesson,
Dennis Benson, Daniel Storkamp, Gregory Carlson, Kevin Moser,
Janine Hébert, Thomas Lundquist, Elizabeth Barbo, John Doe or
Jane Doe[,] Debbie Thao, Dr. Ann Marie LaValley-Wood, Terrance
Kneisel, Kelli Minor, Timothy Gorr, David Bornus, Erik Skon,
Jamie Jungers, Sue Johnson, Yvette Anderson, Ann Zimmerman,
Amanda Furey, Andrea Kosloski, Sue Linda Anderson, and James
Martinez, have maliciously violated the courts order for treatment
with the willful intent to prolong Mr. White’s confinement.
(“Complaint”) (ECF No. 1 ¶ 47.) 2 Nearly every factual allegation in every pleading takes this
form. Continuing with the same Complaint, Mr. White alleges that
defendants, including specifically, Governor Mark Dayton,
Attorney General Lori Swanson, Cal Ludeman, Lucinda Jesson,
Dennis Benson, Daniel Storkamp, Gregory Carlson, Kevin Moser,
Janine Hébert, Thomas Lundquist, Elizabeth Barbo, John Doe or
2
For ease of reference, all citations to the Complaint in this matter refer to the pleading
filed in White v. Dayton, No. 11-CV-3702 (ECF No. 1) (D. Minn. filed Dec. 27, 2021). As
explained above, each of the eight complaints are substantially identical to one another, though the
specific paragraphs in which parallel allegations or claims may be found sometimes differ slightly
from pleading to pleading.
7
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 8 of 40
Jane Doe Debbie Thao, Dr. Ann Marie LaValley-Wood, Terrance
Kneisel, Kelli Minor, Timothy Gorr, David Bornus, Erik Skon,
Jamie Jungers, Sue Johnson, Yvette Anderson, Ann Zimmerman,
Amanda Furey, Andrea Kosloski, Sue Linda Anderson, and James
Martinez, deny the M.S.O.P. clients/patients, including Mr. White,
the use of the gym, yard, and recreation, for several days because
one client/patient has been “found,” unilaterally by the M.S.O.P.
staff, to have violated the rule regarding the use of profanity.
(ECF No. 1 ¶ 74.) These paragraphs are only two of dozens of examples that the Court could
quote from any of the eight complaints in which Plaintiffs allege that each and every Defendant is
responsible for an action, policy, or incident that Plaintiffs believe to be unlawful.
Plaintiffs’ practice of buckshot pleading leads to absurdities throughout the complaints.
Read literally, the above-quoted paragraph alleges that Defendant Mark Dayton, who was the
Governor of the State of Minnesota at the time these lawsuits were filed, personally denied the
MSOP clients from accessing the gym, yard, and recreation areas after one of the MSOP clients
allegedly violated a rule on use of profanity. This is, simply put, not plausible. Nor is it plausible
that former Governor Dayton was personally responsible for the MSOP policies on visitors (see
id. ¶ 100), use of linens (see id. ¶ 101), or canteen access (see id. ¶¶ 103-04). And still less
plausible is that the former governor personally searched Plaintiffs’ cells (see id. ¶ 107), or
personally seized Plaintiffs’ property during those searches (see id. ¶¶ 108-09). And this kitchensink approach carries over from Plaintiffs’ factual allegations to their legal claims as well. With
only one exception—Plaintiffs’ oath of office violation claim—Plaintiffs raise each of their
twenty-one causes of action against every single one of the Defendants they name to each lawsuit.
(See ECF No. 1 ¶¶ 133, 136, 139, 142, 145, 148, 151, 154, 157, 160, 163, 166, 169, 172, 175, 178,
181, 184, 187, & 190.)
One problem this approach to pleading creates is that it causes the Plaintiffs to allege things
that are almost certainly not true and that Plaintiffs almost certainly know to not be true, in
8
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 9 of 40
violation of Rule 11(b)(3) of the Federal Rules of Civil Procedure. Another problem is that
because Plaintiffs impute nearly every action in the Complaint to every Defendant, it is impossible
for the Court to determine from the pleadings which of the allegations it should construe literally,
and which it should assume result from sloppy draftsmanship. The Court does not believe that
Plaintiffs intended to plead that the high-ranking executive officials of the State of Minnesota
personally conducted searches of their property. But because Plaintiffs include every Defendant
in nearly every allegation, it is impossible to determine from the pleading to which of the many
Defendants Plaintiffs actually intended their factual allegations to apply. 3 For that reason, the
Court cannot say that Plaintiffs’ buckshot allegations scattered throughout the complaints are much
more plausible with respect to any of the other Defendants named. Although certain of those
Defendants might conceivably have committed the actions Plaintiffs allege, the Court cannot
conclude from the pleading which of those Defendants Plaintiffs actually believe are responsible
for any particular action.
Two exceptions to Plaintiffs’ shotgun pleading approach merit further discussion, however.
First, Plaintiffs bring Ground Twenty-One of their complaints against just Defendants Mark
Dayton, Lori Swanson, Cal Ludeman, and Lucinda Jesson for having failed to uphold the “sacred
oath of office” required by Article VI of the U.S. Constitution by violating Plaintiffs’ constitutional
rights (“Oath of Office Violation Claim”). 4 (See ECF No. 1 at 76, emphasis removed.) This claim
is an improvement on the others insofar as Plaintiffs specify precisely who they believe violated
3
The pleadings do contain a paragraph concerning the general role of each defendant in
the operation or oversight of MSOP. (ECF No. 1 ¶¶ 13-40.) But these paragraphs do not explain
which of the defendants is believed to be responsible for which of the many putatively unlawful
actions being alleged.
Although somewhat unclear, Ground Twenty-One appears to seek relief from Defendants
Dayton and Swanson only in their official capacities and from Ludeman and Jesson in both their
official and personal capacities. (See ECF No. 1 ¶ 193.)
4
9
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 10 of 40
the law in a particular way. That said, the Court has not uncovered any case law from any federal
jurisdiction that a litigant may seek relief simply for the violation of an oath of office. In any
event, Plaintiffs’ claim under Article VI is premised upon Defendant Dayton, Swanson, Ludeman,
and Jesson’s supposed constitutional infringements that putatively caused them to violate their
oaths. But as explained above, Plaintiffs do not adequately allege Defendants Dayton, Swanson,
Ludeman, or Jesson—or any other particular Defendant—acted unlawfully. It follows that
Plaintiffs fail to adequately allege Defendants Dayton, Swanson, Ludeman, or Jesson violated their
oaths of office through their actions. The Court therefore recommends that Ground Twenty-One
be dismissed without prejudice for failure to state a claim on which relief may be granted,
notwithstanding the fact that Plaintiffs raise somewhat more specific factual allegations against
the Defendants to that particular claim. See 28 U.S.C. § 1915(e)(2)(B)(ii).
Second, in a few instances Plaintiffs do specify that one or a small number of Defendants
are responsible for specific conduct. For example, Plaintiff White 5 alleges that:
•
Defendants Dennis Benson, Gregory Carlson, Kevin Moser, and Terrance Kneisel
informed him that “all clients/patients share the responsibility of maintaining the
M.S.O.P.’s rules, directives, and policies, and that staff expects the other
clients/patients to correct his behavior.” (ECF No. 1 ¶ 74.)
•
Defendants Dayton, Swanson, Ludeman, Jesson, Benson, Storkamp, Carlson, and
Moser “have minted their own coin money and/or currency, which has been
inscribed with ‘M.S.O.P. BUSINESS ENTERPRISE PROGRAM — GOOD FOR
ONE DOLLAR IN TRADE’ for the purpose of disenfranchising Mr. White and to
separate him further from free society by restricting the ability to purchase both
from other clients/patients and from small businesses in the community.” (Id.
¶ 103.)
•
Defendant Ann Marie LaValley-Wood informed Mr. White that “the program ‘is
not about completion, but about behavioral change.’” (Id. ¶ 125, emphasis
removed.)
5
Each of the eight complaints contains substantially similar allegations.
10
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 11 of 40
These allegations are also improvements insofar as Plaintiffs attribute specific conduct to specific
persons, which is necessary to establish personal liability under section 1983. See Madewell, 909
F.2d at 1208. The problem, though, is that none of the more specific allegations permits a plausible
inference that any Defendant violated Plaintiffs’ constitutional rights. That the MSOP employees
informed clients they are responsible for following rules, or that state officials created an
alternative currency program for use inside of the MSOP, 6 or that MSOP clients have been told
their detention is “about behavioral change,” (ECF No. 1 ¶ 125), is hardly enough to demonstrate
that any Defendant has violated the law, as none of these things amounts to even a colorable
example of a constitutional infringement.
In sum, no Plaintiff plausibly alleges that any particular Defendant violated the law.
Accordingly, the Court recommends that each of Plaintiffs’ section 1983 claims against
Defendants in their personal capacities be dismissed without prejudice. 7
2. Official-Capacity Claims against State Officials
Plaintiffs also allege each of their section 1983 claims against Defendants in their official
capacities. In most instances Plaintiffs assert claims against Defendants in their official capacities
as agents of the State of Minnesota, but each lawsuit names one county official, presumably in his
6
The Court notes Plaintiffs do not allege they are barred from possessing currency or
transacting business with outside entities using that currency. Indeed, Plaintiffs acknowledge in
their IFP applications and accompanying documents that they possess ordinary currency in an
account the MSOP maintains. (See, e.g., ECF No. 3, Aff. of Ryan White ¶ 7.)
7
As explained below, Plaintiffs inadequately plead many of their claims under section
1983 against Defendants in their official capacities as well. To the extent Plaintiffs fail to state a
claim on which relief may be granted under section 1983 against Defendants in their official
capacities, those deficiencies apply with equal force to Plaintiffs’ claims against the Defendants in
their personal capacities. That Plaintiffs fail to adequately allege the personal involvement of
specific Defendants is an additional basis upon which the Court recommends that the personalcapacity claims be dismissed.
11
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 12 of 40
or her official capacity as an agent of their county. 8 The Court first addresses Plaintiffs’ officialcapacity claims against the state officials and then addresses Plaintiffs’ official-capacity claims
against the remaining county Defendants.
Plaintiffs appear to seek monetary relief from Defendants only insofar as Plaintiffs sue
Defendants in their personal capacities. (See, e.g., ECF No. 1 ¶ 134, “Plaintiff requests that the
Court award compensatory damages against all defendants in their individual capacities.”; id. at
77, seeking compensatory damages from defendants in their individual capacities only.) This is
for the best: “[T]he Eleventh Amendment prohibits federal-court lawsuits seeking monetary
damages from individual state officers in their official capacities … .” Treleven v. University of
Minnesota, 73 F.3d 816, 818 (8th Cir. 1996). To the extent Plaintiffs do, in fact, seek monetary
relief from the state Defendants in their official capacities, that aspect of their official-capacity
claims must be dismissed.
A different analysis applies to Plaintiffs’ claims for injunctive relief. “Ex parte Young [209
U.S. 123 (1908)] and its progeny teach that a private party may seek prospective injunctive relief
in federal court against a state official, even if the state is otherwise protected by Eleventh
Amendment immunity.” Randolph v. Rodgers, 253 F.3d 342, 345 (8th Cir. 2001). Plaintiffs’
claims broadly allege Defendants are responsible for implementing policies that violate MSOP
clients’ constitutional rights, and they seek a Court order directing Defendants to amend those
policies.
8
The pleadings are confusing in this regard. Mr. White, for example, alleges that a John
or Jane Doe Marshall County Social Services Director named as a defendant to his lawsuit is
“employed by the D.H.S.”—i.e., the Minnesota Department of Human Services. (ECF No. 1 ¶ 25.)
If this were true, then the John or Jane Doe Defendant would be a state official like all the others.
Without further factual support, however, the Court cannot conclude the allegation that these
county defendants are agents of the state rather than the county is plausible.
12
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 13 of 40
The proper Defendants to Plaintiffs’ official-capacity claims are the officials with authority
to amend the policies at issue; the Court cannot otherwise grant effective injunctive relief. But
Plaintiffs’ buckshot approach to pleading is more defensible with respect to their official-capacity
claims, since it is difficult to say at the initial pleading stage which of the state officials is ultimately
responsible for implementing each of the policies and practices Plaintiffs claim are unlawful.
While it is overwhelmingly implausible that the former governor of Minnesota conducted
individual room searches at MSOP, it is far more plausible that the governor has the authority to
amend executive policy with respect to searching rooms at the MSOP. The Court thus will not
recommend dismissing Plaintiffs’ official-capacity claims on the ground that they fail to identify
which official is responsible for implementing the policies at issue. This determination does not
necessarily mean Plaintiffs’ official-capacity claims under section 1983 are viable, however.
Rather, the Court must more specifically address each ground for relief in Plaintiffs’ complaints. 9
a. Failure to Provide Treatment (Ground One)
The purpose of the MSOP is to treat sexually dangerous or psychopathic persons. In
Ground One, Plaintiffs contend the MSOP has failed to fulfill its duty to provide Plaintiffs “with
the best available and most qualified treatment” and that this failure to provide treatment violates
Plaintiffs’ constitutional rights. (See ECF No. 1 ¶ 133.)
Plaintiffs have already litigated this claim. In Karsjens, the Court certified a class
consisting of “all patients currently civilly committed in the Minnesota Sex Offender Program
pursuant to Minn. Stat. § 253B.” See Karsjens v. Jesson, 283 F.R.D. 514, 520 (D. Minn. 2012)
(order certifying class). Count III of the operative pleading in Karsjens presented a claim of
The Court addresses Plaintiffs’ section 1983 claims in a somewhat different order than
Plaintiffs present the claims in the complaints because certain claims are more readily understood
when addressed in relation to other claims.
9
13
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 14 of 40
“failure to provide treatment in violation of the Fourteenth Amendment to the United States
constitution and the Minnesota constitution” pursuant to section 1983 against several MSOP
employees named in their official capacities as agents of the State of Minnesota. See Karsjens v.
Jesson, No. 11-CV-3659 (DWF/JJK), ECF No. 635 at 64 (D. Minn. Oct. 28, 2014) (capitalization
altered). The Court ultimately dismissed that claim with prejudice. See Karsjens v. Piper, 336
F. Supp. 3d 974, 983-84, 998 (D. Minn. 2018), affirmed in relevant part by, Karsjens v. Lourey,
988 F.3d 1047, 1051 (8th Cir. 2021).
Because Plaintiffs have already litigated to judgment their right-to-treatment claim, the
doctrine of res judicata now bars them from litigating it further. “In applying the Eighth Circuit
test for whether the doctrine of res judicata bars litigation of a claim, we examine whether (1) a
court of competent jurisdiction rendered the prior judgment, (2) the prior judgment was a final
judgment on the merits, and (3) both cases involved the same cause of action and the same parties.”
Canady v. Allstate Ins. Co., 282 F.3d 1005, 1014 (8th Cir. 2002), abrogated on other grounds by
Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 (2002). All three elements of res judicata
are met here. First, the claims raised in Karsjens undoubtedly were within the jurisdiction of that
court—indeed, if the Karsjens court lacked jurisdiction, then this Court equally would lack
jurisdiction to consider the claims Plaintiffs raise in this proceeding. Second, the Karsjens court
dismissed with prejudice the right-to-treatment claim on the merits of that claim. See Karsjens,
336 F. Supp. 3d at 983-84, 998.
Third, Ground One in this litigation is substantively
indistinguishable from the claim in Count III of Karsjens, and each of the Plaintiffs to these
lawsuits participated as a class member in Karsjens. While the Defendants named in these actions
are not identical to the defendants named in Karsjens, each of the Defendants (except for the lone
county Defendant Plaintiffs name in each lawsuit as addressed below) is—like the defendants in
14
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 15 of 40
Karsjens—an agent of the State of Minnesota whom Plaintiffs sue in his or her official capacity.
These state officials are sufficiently in privity with one another to preclude re-litigation of the
claim. See Daley v. Marriott Int’l, Inc., 415 F.3d 889, 897 (8th Cir. 2005) (noting that an exception
to the usual requirement of identical parties applies “when a defendant stands in privity with a
defendant in the prior suit”). As the Eighth Circuit has explained:
A plaintiff may not sue a succession of state employees on the same
claim solely on the ground that each employee is not identical to
previously sued employees. There is added force for this holding
here where all defendants were sued in their official capacities for
acts expressly alleged to have been committed by the state itself
rather than by the employees as individuals.
Micklus v. Greer, 705 F.2d 314, 317 (8th Cir. 1983) (quotation omitted).
Having already litigated the failure-to-provide-treatment claim to judgment on the merits
in Karsjens, Plaintiffs cannot do so again in these lawsuits. Therefore, the Court recommends that
Ground One be dismissed.
b. Denial of Less Restrictive Alternative (Ground Eight)
In Ground Eight, Plaintiffs contend Defendants’ actions “constitute deprivation of [their]
constitutional right to a less restrictive alternative placement.” (ECF No. 1 ¶ 154.) This claim is
also barred by res judicata, since Plaintiffs already litigated to judgment the same claim. See
Karsjens, No, 11-CV-3659 (DWF/TNL), 2022 WL 542467, at *3 (D. Minn. Feb. 23, 2022);
Karsjens, 336 F. Supp. 3d at 985. The Court thus recommends Ground Eight also be dismissed.
c. Restrictions on Freedom of Speech (Ground Two)
Plaintiffs allege in Ground Two that various MSOP policies effectively restrict their
freedom of speech. Courts of this District have long applied a modified version of the test
established in Turner v. Safley, 482 U.S. 78 (1987), to evaluate such claims when raised by MSOP
clients. “In Turner, the Supreme Court set forth four factors to consider when assessing restrictions
15
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 16 of 40
placed on prisoners’ constitutional rights.” Banks v. Jesson, No. 11-CV-1706 (SRN/JSM), 2016
WL 3566207, at *7 (D. Minn. June 27, 2016). These four factors are the following:
(1) whether there is a valid, rational connection between the prison
regulation and the legitimate governmental interest put forward to
justify it; (2) whether there are alternative means of exercising the
right that remain open to prison inmates; (3) the impact
accommodation of the asserted constitutional right will have on
guards and other inmates, and on the allocation of prison resources
generally; (4) and whether there exist alternatives to accommodate
the prisoner with a de minimis cost.
Murchison v. Rogers, 779 F.3d 882, 887 (8th Cir. 2015) (quotations omitted).
The modified-Turner approach, first applied in Ivey v. Mooney, No. 05-CV-2666
(JRT/FLN), 2008 WL 4527792, at *10 (D. Minn. Sept. 30, 2008), recognizes that although the
MSOP does not have a legitimate penological interest in maintaining regulations that restrict the
rights of its clients, the facility often will have legitimate therapeutic or institutional interests that
require such restrictions. The MSOP cannot fulfill its therapeutic purpose or maintain safe
operations if clients are not regulated in some respects. Ivey and this District’s subsequent
decisions have held those regulations may lawfully restrict the constitutional rights MSOP clients
would otherwise have if they were not detained. But the MSOP is not free to impose any
restrictions it deems appropriate. Instead, in evaluating the legality of the MSOP regulations, the
Court considers a modified version of the Turner factors:
1) whether there is a valid, rational connection between the
regulation and the legitimate governmental interest put forward to
justify it; 2) whether Plaintiff has alternative means of exercising his
First Amendment rights; 3) the impact that accommodation of his
First Amendment rights would have on guards and other patients,
and on the allocation of the general resources of the institution; and
4) whether obvious, easy alternatives exist to meet the state’s
objectives.
Id. (quotations omitted).
16
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 17 of 40
After reviewing the complaints, the Court concludes Plaintiffs have pleaded at least a
colorable claim that certain policies and practices at the MSOP 10 are insufficiently connected to a
legitimate therapeutic or institutional interest that they unlawfully restrict the First Amendment
rights of MSOP clients. Accordingly, the Court recommends that Ground Two be allowed to
proceed at this time. 11
d. Access to Legal Materials and Counsel (Ground Five)
Plaintiffs contend in Ground Five that the MSOP officials have unlawfully deprived them
of access to legal materials and the ability to seek assistance from legal counsel. (ECF No. 1
¶ 145.) To sustain a “claim based on denial of access to legal materials, counsel, or the courts,” a
litigant “must prove that he suffered an actual injury or prejudice as a result of the alleged denial
of access.” Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006) (citing Klinger v. Dep’t of
Corrections, 107 F.3d 609, 616-17 (8th Cir. 1997)). Put another way, it is not enough for Plaintiffs
to allege that the legal materials or assistance available to them are “subpar in some theoretical
sense.” Lewis v. Casey, 518 U.S. 343, 351 (1996). Instead, each Plaintiff must plausibly allege
that the alleged shortcomings in legal resources “hindered his efforts to pursue a legal claim.” Id.
Although Plaintiffs contend the legal materials made available to them are substandard or
incomplete (see ECF No. 1 ¶ 77), nowhere do Plaintiffs provide a concrete example of actual injury
10
Plaintiffs present a colorable claim that policies in place at the MSOP at the time these
actions were filed might have unlawfully infringed the constitutional rights of MSOP clients.
Because Plaintiffs may only seek prospective injunctive relief from Defendants, however, it is
possible Plaintiffs’ claims have been mooted by changes to those policies and practices over the
intervening decade.
That the Court does not recommend dismissing certain claims on preliminary review
under § 1915(e)(2)(B) does not preclude Defendants from invoking any available defense under
Rule 12 of the Federal Rules of Civil Procedure.
11
17
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 18 of 40
or prejudice resulting from lack of access to legal materials or the courts. The Court recommends
that Ground Five be dismissed for this reason. 12
e. Denial of Religious Freedom (Ground Seven)
Plaintiffs contend in Ground Seven that they have been denied “the right to religion and
religious freedom.” (ECF No. 1 at 68, emphasis removed; see also id. ¶¶ 150-152.) This claim is
entirely unsupported by factual allegations. Nowhere do Plaintiffs allege anything whatsoever
regarding their beliefs or their practice of religion at the MSOP or how that practice might have
been impeded by the MSOP officials or employees. The Court thus recommends that Ground Five
be dismissed
f. Double Jeopardy (Ground Ten)
Plaintiffs contend in Ground Ten that their continuing detention constitutes Double
Jeopardy in violation of the Fifth and Fourteenth Amendments of the U.S. Constitution. (See ECF
No. 1 ¶¶ 159-61.) In contrast with Plaintiffs’ other causes of action, Ground Ten amounts to an
attack on the legality of their continuing detention itself, rather than an attack on the conditions of
their confinement. This kind of collateral attack is prohibited under the doctrine established in
Heck v. Humphrey:
We hold that, in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance
of a writ of habeas corpus, 28 U.S.C. § 2254.
12
Subsumed within Plaintiffs’ allegations regarding lack of legal materials is an additional
allegation that “defendants have a policy in place that allows the defendants to punish
clients/patients who share legal paperwork with other clients/patients that are seeking help or legal
advice.” (ECF No. 1 ¶ 78.) The Court regards this allegation as arising more properly under
Ground Two (which it does not recommend for dismissal at this time) rather than Ground Five.
18
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 19 of 40
512 U.S. 477, 486-87 (1994) (footnote omitted). Under Heck, a prisoner cannot bring claims for
monetary damages under section 1983 that necessarily imply the invalidity of the prisoner’s
detention.
The Court recognizes that these cases differ from Heck in two respects. First, none of the
Plaintiffs are prisoners; rather, they are civil detainees. Second, Plaintiffs seek not only monetary
relief, but injunctive relief as well. But neither of these differences is material for purposes of
determining whether Heck bars consideration of the Double Jeopardy claim. First, the Eighth
Circuit has recognized Heck as equally applicable to claims civil detainees bring to challenge the
legality of their confinement. See Thomas v. Eschen, 928 F.3d 709, 713 (8th Cir. 2019). Second,
Heck and its progeny prohibit claims under section 1983 for any form of relief—whether
injunctive, monetary, or declaratory—that, if granted, would necessarily imply the invalidity of
detention. See Sheldon v. Hundley, 83 F.3d 231, 233 (8th Cir. 1996). As Heck itself explains,
there are multiple procedural avenues through which a litigant can attack wholesale the legality of
his or her detention. Non-habeas civil litigation in federal court is not among those avenues. The
Court therefore recommends that Ground Ten be dismissed pursuant to the Heck doctrine.
g. Obligation of Contracts (Ground Fifteen)
The United States Constitution provides that “No State shall ... pass any ... law impairing
the Obligation of Contracts.” U.S. Const. art. I, § 10. In Ground Fifteen, Plaintiffs allege that
Defendants have violated the Contract Clause through their conduct. (See ECF No. 1 ¶¶ 174-76.)
“In determining whether a state law passes muster under the Contract Clause, ‘the threshold
issue is whether the state law has operated as a substantial impairment of a contractual
relationship.’ Association of Equipment Manufacturers v. Burgum, 932 F.3d 727, 730 (8th Cir.
2019) (quoting Sveen v. Melin, 138 S. Ct. 1815, 1821-22 (2018)). Plaintiffs’ Contract Clause claim
19
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 20 of 40
fails at this first step: The complaints are largely silent regarding the identity of Plaintiffs’
contractual relationship that the State has supposedly impeded. 13 Because Plaintiffs fail to
adequately plead Ground Fifteen, the Court recommends that it too be dismissed.
h. Cruel and Unusual Punishment and Procedural Due Process
(Grounds Nine and Eleven)
Plaintiffs claim in Ground Nine that they have been subjected to cruel and unusual
punishment through the policies implemented at the MSOP. To the extent Plaintiffs contend they
cannot be subjected to punishment at all while detained at the MSOP, the claim lacks merit. As
explained above with respect to Ground Two, the MSOP and its officials are permitted to employ
regulations, including disciplinary regulations, that are reasonably related to “legitimate
therapeutic or institutional interests.” Ivey, 2008 WL 4527792, at *6. That a regulation has a
potentially punitive consequence does not in and of itself establish the unlawfulness of the
regulation or of any actions taken pursuant to the regulation.
But to pass constitutional muster, the regulation must, in fact, be reasonably related to
legitimate therapeutic or institutional interests. In addition, Plaintiffs remain entitled to due
process before or upon being deprived of any protected liberty or property interest, regardless of
whether that deprivation is ultimately related to a legitimate therapeutic or institutional interest.
Thus, Ground Eleven, in which Plaintiffs contend that they have been denied due process, is
interrelated with with Ground Nine, in which Plaintiffs allege the MSOP regulations punish clients
The closest Plaintiffs come to a sufficient allegation on this ground is their assertion that
the MSOP’s requirement that all outgoing mail be stamped with “MAILED FROM SECURED
TREATMENT FACILITY” compels MSOP clients either to use this language or to forego certain
(unspecified) contractual relationships. (See ECF No. 1 ¶ 102.) To the extent Plaintiffs contend
this requirement infringes on their First Amendment rights, that aspect of the claim is subsumed
within Ground Two, which the Court recommends proceed at this time. With respect to the
obligation of contracts claim, however, Plaintiffs have not alleged the existence of any actual or
potential contract the challenged requirement caused them to forego.
13
20
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 21 of 40
without legitimate purpose. The Court finds the allegations on these grounds sufficient to grant
Plaintiffs’ IFP applications with respect to both Ground Nine and Ground Eleven insofar as
Plaintiffs raise them against Defendants in their official capacities as agents of the State of
Minnesota.
i. Denial of Liberty (Grounds Six and Twenty)
In Grounds Six and Twenty, Plaintiffs assert claims of “denial of the right to liberty” and
“denial of liberty,” respectively. (See ECF No. 1 at 68, 76, emphasis removed; see also id. ¶¶ 147149, 189-191.) It is not entirely clear what specific claim Plaintiffs intend to raise through these
causes of action. In both instances Plaintiffs claim only that Defendants’ “above-described
conduct” amounted to constitutional violations, with no further elaboration regarding the
“conduct” to which the Plaintiffs might be referring. (Id. ¶¶ 148, 190.) To the extent Plaintiffs
allege they have been deprived of specific liberty or property interests during their detention at the
MSOP, the Court has recommended those claims be permitted to go forward through Ground
Eleven.
Because Grounds Six and Twenty are duplicative of Ground Eleven, the Court
recommends Grounds Six and Twenty be dismissed. See Trice v. Napoli Shkolnik PLLC, No. 18CV-3367 (ADM/KMM), 2019 WL 6324867, at *2 (D. Minn. Nov. 26, 2019) (citing Blakley v.
Schlumberger Technology Corp., 648 F.3d 921, 931-32 (8th Cir. 2011)). To the extent Plaintiffs
allege their detention itself resulted from a lack of due process, Heck bars that claim, as it
necessarily implies the invalidity of Plaintiffs’ civil commitment. The Court recommends Grounds
Six and Twenty be dismissed for these reasons.
j. Unreasonable Searches and Seizures (Ground Three)
21
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 22 of 40
In Ground Three, plaintiffs contend MSOP officials have conducted unreasonable searches
and seizures in violation of the Fourth Amendment of the U.S. Constitution. This ground for relief
encompasses three separate claims. First, Plaintiffs allege MSOP policy permits Defendants to
unlawfully conduct property searches (such as room searches) in violation of the Fourth
Amendment. Second, Plaintiffs allege Defendants unlawfully conduct unclothed body searches
(or “strip searches”) in violation of the Fourth Amendment. Third, Plaintiffs allege Defendants
have unlawfully seized personal property during the course of these searches. The Court will
evaluate each claim separately.
i. Property Searches
Plaintiffs contend Defendants’ searches of their rooms without warrants and without
reasonable suspicion of wrongdoing violate their Fourth Amendment rights. (See ECF No. 1
¶¶ 106-07.) “[I]nvoluntarily civilly committed persons retain the Fourth Amendment right to be
free from unreasonable searches that is analogous to the right retained by pretrial detainees.”
Beaulieu v. Ludeman, 690 F.3d 1017, 1028 (8th Cir. 2012) (citing Serna v. Goodno, 567 F.3d 944,
948-49 (8th Cir. 2009)). “‘[I]n order to claim the protection of the Fourth Amendment, a defendant
must demonstrate that he personally has [a reasonable] expectation of privacy in the place searched
…’” United States v. Crumble, 878 F.3d 656, 659 (8th Cir. 2018) (quoting Minnesota v. Carter,
525 U.S. 83, 88 (1998)).
“While a pretrial detainee retains ‘some Fourth Amendment rights upon commitment to a
corrections facility,’ his reasonable expectation of privacy is ‘necessarily’ of a ‘diminished scope’
given the realities of institutional confinement.” Evenstad v. Herberg, 994 F. Supp. 2d 995, 1003
(D. Minn. 2014) (quoting Bell v. Wolfish, 441 U.S. 520, 557-58 (1979)). Courts of this District
have consistently concluded that, due to the nature of their commitment, MSOP detainees have no
22
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 23 of 40
reasonable expectation of privacy in their rooms. See, e.g., Benson v. Piper, No. 17-CV-0266
(DWF/TNL), 2019 WL 2017319, at *15-16 (D. Minn. Jan. 25, 2019); United States v. SentyHaugen, 17-CR-0182 (JNE/LIB), 2017 WL 6543824, at *5-8, 12-13 (D. Minn. Nov. 21, 2017);
Daniels v. Jesson, No. 13-0736 (JNE/SER), 2014 WL 3629874, at *6 (D. Minn. July 22, 2014).
The Court concurs with the reasoning of those decisions. Because Plaintiffs have no reasonable
expectation of privacy in their rooms, they cannot plausibly allege searches of their rooms violate
the Fourth Amendment. Therefore, the Court recommends that this aspect of Ground Three be
dismissed.
ii. Strip Searches
Plaintiffs’ claims related to unclothed body searches are not as straightforward. Unlike
room searches, as to which MSOP officials are practically unconstrained, the reasonableness, and
therefore the legality, of bodily searches depends on the specific factual circumstances of the
search. See Benson, 2019 WL 2017319, at *17; Allan v. Ludeman, No. 10-CV-0176 (ADM/JJK),
2011 WL 978768, at *4 (D. Minn. Jan. 18, 2011) (noting that “strip searches conducted at MSOP
facilities may or may not be reasonable, and thus may or may not be constitutional, depending on
the circumstances.”).
The problem for Plaintiffs is that the policy and practices they object to in the complaints—
specifically, the strip search of all MSOP clients upon entry to and exit from the facility (see ECF
No. 1 ¶ 111)—have already been litigated and found to be lawful. See Senty-Haugen v. Goodno,
No. 04-1077 (ADM/JJG), 2005 WL 2917464, at *8 (D. Minn. Nov. 4, 2005) (no Fourth
Amendment violation when detainee subjected to unclothed body search upon entry to MSOP).
Indeed, Plaintiffs fully litigated a similar claim—namely, whether MSOP detainees could be
subjected to unclothed bodily searches without reasonable suspicion of wrongdoing when moved
23
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 24 of 40
within the facility—as members of the class certified in Karsjens. See Asher v. Harpstead, No. 19CV-2381 (PJS/DTS), 2021 WL 537930, at *5 (D. Minn. Jan. 15, 2021). The Eighth Circuit
likewise has rejected similar claims. See Beaulieu v. Ludeman, 690 F.3d 1017, 1029-31 (8th Cir.
2012). The Court finds the reasoning of those decisions persuasive and equally applicable here.
A policy of unclothed bodily searches upon exit or entry from the MSOP is, on its face, reasonably
related to the security of the facility. Absent additional specific factual allegations that, if true,
would cause those otherwise lawful searches to become unreasonable, Plaintiffs cannot state a
claim for relief under section 1983 with respect to the strip searches. And because Plaintiffs
provide no such factual allegations in the complaints, the Court recommends this aspect of Ground
Three also be dismissed.
iii. Property Seizures
Plaintiffs also bring Fourth Amendment claims challenging MSOP policies concerning the
seizure of personal property. The Court views this claim as closely related to Plaintiffs’ claim in
Ground Eleven, discussed above, that Plaintiffs have been deprived of protected liberty and
property interests without due process of law. As the Court recommends Ground Eleven be
permitted to go forward at this time, the Court also recommends this aspect Ground Three be
allowed to proceed.
k. Supervisory Liability (Ground Eighteen)
In Ground Eighteen, Plaintiffs allege that “the defendants failed to Supervise their
employees in violation of the Fourteenth Amendment of the United States Constitution.” (ECF
No. 1 ¶ 184.) It is well established that supervisory officials do not have respondeat superior
liability under section 1983. In other words, the fact that a person has supervisory authority over
someone who has violated the constitutional rights of another is not alone enough to hold the
24
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 25 of 40
supervisor liable for that error. See, e.g., Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001).
Instead, to plead a failure-to-supervise claim under section 1983, Plaintiffs must adequately allege
that the “failure to supervise and train ‘amounts to deliberate indifference to the rights of persons
with whom [the plaintiff came] into contact.’” Doe v. Fort Zumwalt R-II School Dist., 920
F.3d 1184, 1189 (8th Cir. 2019) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 388
(1989)). The closest Plaintiffs come to making such an allegation is their conclusory state law
claim that Defendants were negligent in their hiring practices at the MSOP (ECF No. 1 ¶¶ 17779), which the Court recommends be dismissed for the reasons discussed below. Moreover,
“[d]eliberate indifference is characterized by obduracy or wantonness—it cannot be predicated on
negligence, inadvertence, or good faith error.” Reilly v. Vadlamudi, 680 F.3d 617, 624 (6th Cir.
2012) (citing Whitley v. Albers, 475 U.S. 312, 319 (1986)). Nothing Plaintiffs allege in the
complaints rises to the level of deliberate indifference in supervisory practices. Accordingly, the
Court recommends Ground Eighteen be dismissed.
l. Totality of the Conditions (Ground Seventeen)
In Ground Seventeen, Plaintiffs allege that the totality of the conditions at the MSOP, when
taken in combination, amount to a violation of constitutional rights. (See ECF No. 1 ¶¶ 180-82.)
Plaintiffs, as members of the class certified in Karsjens, fully litigated a similar claim that the
Karsjens Court considered and rejected. See Karsjens, 2022 WL 542467, at *17. Because the
circumstances here are somewhat different, however, the Court is not prepared to find at this early
stage in the proceedings that the resolution of the totality-of-the-conditions claim litigated in
Karsjens precludes Plaintiffs’ prosecution of a similar claim in these lawsuits. Among other
differences, the Karsjens court concluded that each individual constitutional claim Plaintiffs raised
in that matter ultimately lacked merit, which permitted the court to also conclude the totality of
25
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 26 of 40
the conditions at MSOP likewise did not violate MSOP clients’ constitutional rights. See id. (“As
discussed above, the Court finds that each condition of confinement referenced or alluded to in
Plaintiffs’ Third Amended Complaint is reasonably related to a legitimate government objective,
is not excessive in relation to the objective(s) and is not punitive under Bell.”). Although the Court
finds most of the claims Plaintiffs present in these lawsuits should be dismissed pursuant to
§ 1915(e)(2)(B), it recommends that a small number of Plaintiffs’ constitutional claims be
permitted to proceed. The Court cannot conclude the totality of the conditions at the MSOP is
lawful while specific instances of allegedly unlawful conditions or policies at MSOP remain to be
litigated. 14 Accordingly, the Court recommends Ground Seventeen proceed at this time.
m. Violation of Police Powers (Ground Nineteen)
In Ground Nineteen, Plaintiffs allege Defendants have acted in “violation of the police
powers of the state.” (ECF No. 1 at 75, emphasis removed; see also id. ¶¶ 186-188.) Plaintiffs
assert this claim arises under the Tenth Amendment of the U.S. Constitution (see ECF No. 1 ¶ 187),
but “it is the power of the federal government which is constrained by the Tenth Amendment, not
the power of the States. Plaintiffs cannot found a section 1983 claim on the Tenth Amendment
because it is neither a source of federal authority nor a fount of individual constitutional rights.”
Stone v. City of Prescott, 173 F.3d 1172, 1175 (9th Cir. 1999). The gist of Plaintiffs’ claim appears
to be that Defendants lack a rational basis upon which to implement the MSOP civil commitment
scheme (see ECF No. 1 at ¶ 131), but Ground Nineteen is so vague as to lack plausibility.
14
For Plaintiffs’ totality-of-the-conditions claim to succeed they must establish that their
constitutional rights have been violated more concretely through a specific policy or custom that
itself violates the law. See Wilson v. Seiter, 501 U.S. 294, 305 (1991) (“Nothing so amorphous as
‘overall conditions’ can rise to the level of cruel and unusual punishment when no specific
deprivation of a single human need exists.”).
26
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 27 of 40
Moreover, the claim would in any event amount to a collateral attack on the legality of detention
in violation of Heck. The Court thus recommends Ground Nineteen be dismissed.
n. Violation of Oath of Office (Ground Twenty-One)
Finally, in Ground Twenty-One, Plaintiffs allege that Defendants Mark Dayton, Lori
Swanson, Cal Ludeman, and Lucinda Jesson violated their “sacred oath of office” by failing to
protect Plaintiffs’ constitutional rights. (ECF No. 1 at 76, emphasis removed; see also id. ¶¶ 192194.) For the reasons explained above with respect to Plaintiffs’ personal-capacity claims, the
Court recommends Ground Twenty-One be dismissed in its entirety pursuant to § 1915(e)(2)(B).
3.
Official-Capacity Claims Against County Officials
Nearly all the Defendants named in Plaintiffs’ lawsuits are agents of the State of Minnesota.
In each lawsuit, however, Plaintiffs name one county official in their personal and official
capacities: the director of the Department of Social Services (or functional equivalent) for the
county where the Plaintiff’s commitment proceedings were conducted. 15 Plaintiffs’ personalcapacity claims against the county Defendants fail for the same reasons that their personal-capacity
claims against the state officials fail: Plaintiffs do not plead plausible factual allegations that the
county officials in particular have done anything unlawful.
But unlike the official-capacity claims against state officials under section 1983, Plaintiffs’
official-capacity claims against county officials fail in their entirety. Insofar as Plaintiffs seek
monetary relief from county officials in their official capacities, Plaintiffs would be required to
establish that a violation of their constitutional rights “resulted from (1) an official municipal
15
The county Defendants are as follows: (1) In White, Defendant John or Jane Doe; (2) in
Scott, Defendant Angie Eason; (3) in Davidson, Defendant John or Jane Doe; (4) in Fries,
Defendant Gary Fahnhorst; (5) in Hajek, Defendant John or Jane Doe; (6) in Hartleib, Defendant
Eileen Waterman; (7) in Stevens, Defendant John or Jane Doe; and (8) in Williams, Defendant
John or Jane Doe.
27
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 28 of 40
policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or supervise.”
Atkinson v. City of Mountain View, Missouri, 709 F.3d 1201, 1214 (8th Cir. 2013) (citations and
quotations omitted); accord Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690-91
(1978). Plaintiffs do not plausibly allege that any of the respective counties’ policies, customs, or
deliberate indifference violated their constitutional rights. Indeed, Plaintiffs plead almost nothing
whatsoever regarding the counties’ conduct except that the counties happened to be the
jurisdictions in which Plaintiffs’ civil commitment proceedings occurred. To the extent Plaintiffs
seek injunctive relief, Plaintiffs do not plausibly allege that the county Defendants are appropriate
targets of that relief. Based on Plaintiffs’ allegations, the Court cannot conclude county officials
have any authority to alter the allegedly unlawful MSOP policies at issue. Accordingly, the Court
recommends Plaintiffs’ claims under section 1983 against the county defendants be dismissed in
their entirety.
B.
Other Federal Claims
1.
Conspiracy under 42 U.S.C. § 1985 (Ground Twelve)
Plaintiffs allege in Ground Twelve that the Defendants have all conspired with one another
to deny due process to MSOP clients in violation of 42 U.S.C. § 1985(3). (ECF No. 1 ¶¶ 165167.) The United States Supreme Court explained:
[T]o make out a violation of § 1985(3) ... the plaintiff must allege
and prove four elements: (1) a conspiracy; (2) for the purpose of
depriving, either directly or indirectly, any person or class of persons
of the equal protection of the laws, or of equal privileges and
immunities under the laws; and (3) an act in furtherance of the
conspiracy; (4) whereby a person is either injured in his person or
property or deprived of any right or privilege of a citizen of the
United States.
United Brotherhood of Carpenters and Joiners of America, Local 610, AFL-CIO v. Scott, 463
U.S. 825, 828-29 (1983).
28
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 29 of 40
Plaintiffs’ complaints fail at steps one and two. First, “allegations of a conspiracy must be
pleaded with sufficient specificity and factual support to suggest a ‘meeting of the minds.’”
Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985) (quoting Smith v. Bacon, 699 F.2d 434,
436 (8th Cir. 1983)). Plaintiffs’ complaints lack sufficient factual allegations that, if proved true,
would establish that Defendants acted with the necessary joint intent. Second, even if Plaintiffs
adequately pleaded the necessary conspiracy among two or more Defendants, Plaintiffs do not
provide a factual basis upon which the Court can conclude that the aim of that joint venture was
to deprive Plaintiffs of equal protection of the laws. Plaintiffs do not allege they are members of
a protected class and do not identify a similarly-situated comparator who allegedly received
preferential treatment. See, e.g., Robbins v. Becker, 794 F.3d 988, 996 (8th Cir. 2015) (discussing
class-of-one claims). The Court therefore recommends Ground Twelve be dismissed.
2.
Americans with Disabilities Act and Rehabilitation Act
Plaintiffs’ complaints very briefly refer to the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12101 et seq.; and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.,
as potential sources of relief. (ECF No. 1 ¶ 123.) But it is not entirely clear that Plaintiffs, in fact,
seek relief under either the ADA or the Rehabilitation Act because Plaintiffs do not mention those
provisions among any of the twenty-one causes of action they expressly plead in their complaints.
(See id. ¶¶ 132-194.) In any event, to succeed under either of these provisions, Plaintiffs would
need to establish—at a minimum—that they are disabled within the meaning of these statutes and
that Defendants have subjected them to differential treatment because of their disabilities. See 42
U.S.C. § 12102(2); Olson v. Dubuque Community School Dist., 137 F.3d 609, 611 (8th Cir. 1998)
(noting elements of ADA claim); Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) (stating
that cases interpreting the ADA and the Rehabilitation Act are “interchangeable”). Plaintiffs
29
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 30 of 40
include no such allegations in their complaints. None of the eight pleadings allege anything
whatsoever regarding Plaintiffs’ supposed disabilities, much less how Defendants have treated
them differently due to those disabilities. Accepting all of Plaintiffs’ non-conclusory factual
allegations as true, there is insufficient basis upon which a factfinder could conclude Defendants
have violated either the ADA or the Rehabilitation Act. The Court thus recommends that, to the
extent Plaintiffs seek relief under the ADA or the Rehabilitation Act, those claims be dismissed.
C.
State Law Claims
Plaintiffs also raise several claims under state law. The Court has supplemental jurisdiction
over those claims pursuant to 28 U.S.C. § 1367 and will review Plaintiffs’ claims under state law
pursuant to section 1915(e)(2)(B).
1.
Claims under the Minnesota Constitution
Plaintiffs present most of their claims for relief under section 1983 as violations of the
Minnesota Constitution.
(See, e.g., ECF No. 1 ¶ 136, “The above-described conduct …
constitute[s] an unreasonable and unwarranted restriction on plaintiff’s right to freedom of speech
and expression … guaranteed by the First and Fourteenth Amendments to the United States
Constitution, and Article I … of the Minnesota Constitution.”) But there is no corollary to section
1983 under state law, and “courts have repeatedly stated that Minnesota has not recognized private
remedies for violations of the Minnesota Constitution.” Fearing v. St. Paul Police Dep’t, No. 024744 (ADM/JSM), 2005 WL 914733, at *5 (D. Minn. Apr. 20, 2005). The Court therefore
recommends the bulk of Plaintiffs’ claims arising under the Minnesota Constitution be summarily
dismissed without further analysis.
The sole exception to this is that Minnesota courts have permitted litigants to bring claims
directly under Article 1, Section 16 of the Minnesota Constitution, which (broadly speaking)
30
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 31 of 40
protects the right to religious liberty. See Daywitt v. Moser, No. 17-CV-1720 (WMW/LIB), 2019
WL 5104804, at *5-6 (D. Minn. June 5, 2019) (collecting cases). But as explained above in the
analysis of Ground Seven, Plaintiffs’ religious deprivation claims are entirely conclusory. The
very lengthy pleadings include no factual allegations whatsoever regarding Plaintiffs’ religious
beliefs or any differential treatment resulting from those religious beliefs. Just as the Court
recommends Ground Seven be dismissed as conclusory, it also recommends any claim premised
upon Article 1, Section 16 of the Minnesota Constitution be dismissed pursuant to
section 1915(e)(2)(B).
2.
Invasion of Privacy (Ground Four)
Plaintiffs allege in Ground Four that the “conduct by [each of the defendants] constitute[s]
an unreasonable and gross invasion of plaintiff’s privacy in violation of his rights, privileges and
immunities guaranteed by the Fourth and Fifth Amendments to the United States Constitution and
the Minnesota Constitution.” (ECF No. 1 ¶ 142.) To the extent Ground Four merely restates the
illegal search claims Plaintiffs raise in Ground Three, the Court recommends Ground Four be
dismissed for the same reasons that it recommends Ground Three be dismissed. Moreover, as
previously noted, the Minnesota Constitution itself generally does not provide private rights of
action to litigants, and any privacy claim arising directly under the Minnesota Constitution should
also be dismissed for this reason.
The Court also considers whether Plaintiffs seek to bring a claim for invasion of privacy
under state common law. The State of Minnesota has recognized three separate causes of action
under the broad category of invasion of privacy torts: intrusion upon seclusion, appropriation, and
publication of private facts. See Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 233-36 (Minn.
1998). Of the three, intrusion upon seclusion is the closest fit for the specific claims and factual
31
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 32 of 40
allegations presented in the complaints. “The tort has three elements: (a) an intrusion; (b) that is
highly offensive; and (c) into some matter in which a person has a legitimate expectation of
privacy.” Swarthout v. Mutual Service Life Ins. Co., 632 N.W.2d 741, 744 (Minn. Ct. App. 2001).
As the Court determined with respect to Ground Three, Plaintiffs did not have a legitimate
expectation of privacy with respect to any of the searches (or intrusions) Defendants allegedly
conducted. For the same reason, the Court recommends any claim of intrusion upon seclusion be
dismissed for failure to state a claim on which relief may be granted.
3. Intentional and Negligent Infliction of Emotional Distress
(Grounds Thirteen and Fourteen)
In Grounds Thirteen and Fourteen, Plaintiffs allege intentional and negligent infliction of
emotional distress, respectively. 16 (ECF No. 1 ¶¶ 168-170, 171-173.) “The elements of intentional
infliction of emotional distress require extreme and outrageous conduct that is intentional or
reckless and causes severe emotional distress.” Anderson v. Peavey, No. C4-96-2557, 1997
WL 343166, at *1 (Minn. Ct. App. June 24, 1997) (citing Hubbard v. United Press Int’l, Inc., 330
N.W.2d 428, 438-39 (Minn. 1983)). “The severity of the resulting mental distress must be so
severe that no reasonable man could be expected to endure it.’” Id. To the extent Plaintiffs allege
they have suffered severe emotional distress due to extreme outrageous conduct, they largely
allege it is other clients’ conduct, not Defendants’ conduct, that caused the distress at the heart of
their claim. (See ECF No. 1 ¶¶ 88-90.) To the extent Plaintiffs allege at all that Defendants have
inflicted emotional distress through their actions, Plaintiffs’ allegations are largely conclusory.
(See, e.g., ECF No. 1 ¶ 45, “Since [the time of his commitment], Mr. White has had to put up with
staffs [sic] abuse and their infliction of severe emotional distress.”.) Finally, to the extent
16
Plaintiffs purport to raise each claim under the U.S. Constitution, but claims of both
intentional and negligent infliction of emotional distress are plainly matters of state law; not federal
law.
32
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 33 of 40
Plaintiffs’ claim is predicated on the MSOP’s practice of double-bunking clients, their claim is
now precluded by the judgment in Karsjens, which affirmed the legality of this practice at the
MSOP. See Karsjens, 2022 WL 542467, at *14 (D. Minn. Feb. 23, 2022).
Plaintiffs’ claim of negligent infliction of emotional distress equally lacks merit.
“Emotional-distress damages are recoverable in negligent-infliction-of-emotional-distress actions
only in two circumstances—when the claimant is either physically injured or placed in physical
danger due to another’s negligence.” Albert v. GEICO General Insurance Co., No. A21-0117,
2021 WL 4428920, at *2 (Minn. Ct. App. Sept. 16, 2021) (citing Engler v. Illinois Farmers Ins.
Co., 706 N.W.2d 764, 767 (Minn. 2005)). Plaintiffs allege no physical injury in any of the eight
pleadings, and the only specific example of potential future physical danger alleged relates to the
practice of double-bunking, which the resolution of Karsjens precludes Plaintiffs from challenging
in this litigation. The Court therefore recommends Grounds Thirteen and Fourteen be dismissed.
4. Negligent Hiring and Credentialing (Ground Sixteen)
Finally, Plaintiffs allege in Ground Sixteen that Defendants violated the law through
negligent hiring practices. 17 (ECF No. 1 ¶¶ 177-79.) There are two fatal problems with this claim.
First, it is predicated almost entirely on conclusory allegations. Plaintiffs do not set forth an
adequate factual basis from which a factfinder could conclude that anyone associated with the
MSOP acted negligently with respect to hiring decisions.
Second, under Minnesota law,
“[n]egligent-supervision claims are premised on an employer’s duty to control employees and
prevent them from intentionally or negligently inflicting personal injury.” Johnson v. Peterson,
17
Plaintiffs purport to bring this claim under both the U.S. and Minnesota Constitutions.
But as explained above with respect to Plaintiffs’ supervisory liability claims, mere negligence is
not a basis for liability under section 1983. And as just explained, the Minnesota Constitution does
not generally provide private rights of action. The Court therefore interprets Ground Sixteen as
presenting more general claims of negligence under state law.
33
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 34 of 40
734 N.W.2d 275, 277 (Minn. Ct. App. 2007). “Negligent-hiring claims are likewise predicated on
the fact that it should be foreseeable that an employee posed a threat of physical injury to others.”
Id. In other words, to succeed on their supervisory claims in Ground Sixteen, Plaintiffs must
establish not only that the MSOP employees acted wrongfully, but that the supervisor “knew or
should have known that the employee was violent or aggressive and might engage in injurious
conduct.” Id. at 278 (emphasis added). Although Plaintiffs support their claims of intentional and
negligent infliction of emotional distress with allegations that other clients at the MSOP have
subjected them to violent conduct, Plaintiffs do not allege anywhere in their pleadings that MSOP
employees subjected Plaintiffs to violent or aggressive conduct. In the absence of such allegations
Plaintiffs’ negligent hiring claim necessarily fails.
In Ground Sixteen, Plaintiffs also present a claim of negligent credentialing under
Minnesota law. Minnesota law does recognize a cause of action predicated upon negligent
credentialing, see generally Larson v. Wasemiller, 738 N.W.2d 300 (Minn. 2007), but the claim is
an awkward fit for this litigation. First, Plaintiffs to not allege that Defendants themselves
credentialed anyone or are responsible for credentialing anyone. Second, Plaintiffs appear to
predicate their negligent-credentialing claim upon the supposed lack of credentials of unspecified
persons employed at the MSOP. But if those persons have not been credentialed at all (as Plaintiffs
allege), then there is no one who can be held liable for having negligently credentialed those
persons. The Court therefore recommends Ground Sixteen be dismissed in its entirety.
CONCLUSION
For the reasons set forth above, the Court recommends the bulk of Plaintiffs’ claims be
dismissed without prejudice pursuant to section 1915(e)(2)(B).
The Court recommends the
following claims under section 1983 be allowed to proceed against the state Defendants in their
34
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 35 of 40
official capacities only: (1) Ground Two, alleging certain policies or practices at the MSOP
unlawfully restrict freedom of speech; (2) Ground Three, to the extent Plaintiffs allege MSOP
officials have a policy or practice of unlawfully seizing property; (3) Ground Nine, alleging certain
policies or practices at the MSOP amount to cruel and unusual punishment; (4) Count Eleven,
alleging MSOP policies do not afford clients adequate procedural protections; and (5) Count
Seventeen, alleging conditions at the MSOP in their totality violate MSOP clients’ constitutional
rights. Because Plaintiffs do not adequately allege the personal involvement of any particular
Defendant in any specific instance of unlawful conduct, the Court recommends all claims against
Defendants
in
their
personal
capacities
be
dismissed
without
prejudice
under
section 1915(e)(2)(B). And because Plaintiffs do not adequately plead a claim for relief with
respect to the lone county official named as a Defendant in each lawsuit, the Court recommends
the county Defendants be dismissed entirely from this litigation.
Because the Court recommends some claims be allowed to proceed, the Court also grants
Plaintiffs’ IFP applications and directs officers of the Court to effect service of process, see 28
U.S.C. § 1915(d). The Court further extends Defendants’ obligation to answer or otherwise
respond to Plaintiffs’ complaints beyond the deadline established by Rule 12(a) of the Federal
Rules of Civil Procedure until after this Report and Recommendation is resolved.
Next, because these lawsuits were stayed for so long, the Court asked each Plaintiff to
provide notice of intent to continue litigating their case, failing which the Court would dismiss any
nonresponding Plaintiff’s lawsuit without prejudice for failure to prosecute. Each of the eight
Plaintiffs provided the necessary notice of intent to prosecute. Some Plaintiffs provided this notice
by filing a formal motion requesting that the Court not dismiss the proceeding for failure to
prosecute. The Court grants those motions.
35
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 36 of 40
Finally, four of the Plaintiffs— Joseph Allen Hajek, Lloyd Hartleib, Karl Godfrey Stevens,
and Dale Allen Williams, Sr.—have requested that counsel be appointed to represent them in their
respective proceedings. “A pro se litigant has no statutory or constitutional right to have counsel
appointed in a civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998). “When
determining whether to appoint counsel for an indigent civil litigant, the district court considers
relevant factors such as the complexity of the case, the ability of the indigent litigant to investigate
the facts, the existence of conflicting testimony, and the ability of the indigent to present his claim.”
Id. Although the complaints are long and complex, they will be considerably less complex if the
Court’s Report and Recommendation is adopted. Only five claims would remain pending with
respect to the state defendants in their official capacities. Plaintiffs’ entitlement to relief on those
claims is likely to turn on the content of policies at the MSOP, which is well within Plaintiffs’
capabilities to investigate—even as pro se litigants. Moreover, Plaintiffs have demonstrated at
least a baseline ability to present their claims and litigate in federal court. Finally, while conflicting
testimony may emerge later on, this factor does not currently outweigh the others. Accordingly,
the Court denies each of the motions for appointment of counsel.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.
The following applications to proceed in forma pauperis are GRANTED:
a.
White, No. 11-CV-3702, (ECF No. [2]).
b.
Scott, No. 11-CV-3714, (ECF No.[ 2]).
c.
Davidson, No. 11-CV-3733, (ECF No. [2]).
d.
Fries, No. 12-CV-0062, (ECF No. [2]).
36
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 37 of 40
2.
3.
4.
e.
Hajek, No. 12-CV-0343, (ECF No. [2]).
f.
Hartleib, No. 12-CV-0344, (ECF No. [3]).
g.
Stevens, No. 12-CV-0495, (ECF No. [2]).
h.
Williams, No. 12-CV-0881, (ECF No. [2]).
The following motions not to dismiss for failure to prosecute are GRANTED:
a.
Scott, No. 11-CV-3714, (ECF No. [13]).
b.
Davidson, No. 11-CV-3733, (ECF No. [16]).
c.
Fries, No. 12-CV-0062, (ECF No. [15]).
d.
Hajek, No. 12-CV-0343, (ECF No. [17]).
e.
Hartleib, No. 12-CV-0344, (ECF No. [18]).
f.
Stevens, No. 12-CV-0495, (ECF No. [16]).
The following motions for appointment of counsel are DENIED:
a.
Hajek, No. 12-CV-0343, (ECF No. [4]).
b.
Hartleib, No. 12-CV-0344, (ECF No. [2]).
c.
Stevens, No. 12-CV-0495, (ECF No. [4]).
d.
Williams, No. 12-CV-0881, (ECF No. [4]).
The Court directs the U.S. Marshals Service to effect service of process on the
Defendants in their official capacities as agents of the State of Minnesota, except
as provided in Paragraph 6 below, consistent with Rule 4(j) of the Federal Rules of
Civil Procedure.
5.
Following service of process, Defendants must answer or otherwise respond to the
complaints within 35 days of the date when the Court’s pending Report and
Recommendation is resolved.
37
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 38 of 40
6.
Service of process shall not be effected upon the following Defendants unless
otherwise ordered by the Court:
a.
Defendant John or Jane Doe in White v. Dayton et al., No. 11-CV-3702.
b.
Defendant Angie Eason in Scott v. Dayton et al., No. 11-CV-3714.
c.
Defendant John or Jane Doe in Davidson v. Dayton et al., No. 11-CV-3733.
d.
Defendant Gary Fahnhorst in Fries v. Dayton et al., No. 12-CV-0062.
e.
Defendant John or Jane Doe in Hajek v. Dayton et al., No. 12-CV-0343.
f.
Defendant Eileen Waterman in Hartleib v. Dayton et al., No. 12-CV-0344.
g.
Defendant John or Jane Doe in Stevens v. Dayton et al., No. 12-CV-0495.
h.
Defendant John or Jane Doe in Williams v. Dayton et al., No. 12-CV-0881.
RECOMMENDATION
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY RECOMMENDED THAT:
1.
The following claims be DISMISSED WITHOUT PREJUDICE from each of the
above-captioned civil actions:
a.
Ground One;
b.
The unlawful-search claims raised in Ground Three;
c.
Ground Four;
d.
Ground Five;
e.
Ground Six;
f.
Ground Seven;
g.
Ground Eight;
h.
Ground Ten;
38
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 39 of 40
2.
i.
Ground Twelve;
j.
Ground Thirteen;
k.
Ground Fourteen;
l.
Ground Fifteen;
m.
Ground Sixteen;
n.
Ground Eighteen;
o.
Ground Nineteen;
p.
Ground Twenty;
q.
and Ground Twenty-One.
The following defendants be DISMISSED WITHOUT PREJUDICE from this
litigation:
3.
a.
Defendant John or Jane Doe in White v. Dayton et al., No. 11-CV-3702.
b.
Defendant Angie Eason in Scott v. Dayton et al., No. 11-CV-3714.
c.
Defendant John or Jane Doe in Davidson v. Dayton et al., No. 11-CV-3733.
d.
Defendant Gary Fahnhorst in Fries v. Dayton et al., No. 12-CV-0062.
e.
Defendant John or Jane Doe in Hajek v. Dayton et al., No. 12-CV-0343.
f.
Defendant Eileen Waterman in Hartleib v. Dayton et al., No. 12-CV-0344.
g.
Defendant John or Jane Doe in Stevens v. Dayton et al., No. 12-CV-0495.
h.
Defendant John or Jane Doe in Williams v. Dayton et al., No. 12-CV-0881.
Each of the remaining Defendants be DISMISSED WITHOUT PREJUDICE in
their personal capacities.
Dated: January 3, 2023
s/ Dulce J. Foster
DULCE J. FOSTER
United States Magistrate Judge
39
CASE 0:11-cv-03702-NEB-DJF Doc. 19 Filed 01/03/23 Page 40 of 40
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).
40
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?