Bishop v. Swanson et al

Filing 27

ORDER ACCEPTING 20 Report and Recommendation. See Order for details. (Written Opinion) Signed by Judge Katherine M. Menendez on 3/15/2023.(BJP)

CASE 0:12-cv-00135-KMM-DTS Doc. 27 Filed 03/15/23 Page 1 of 6

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Merel Evans Bishop,

Case No. 12-cv-135 (KMM/DTS)

Plaintiff,
v.
Lori Swanson et al.,
Defendants.

Joseph Goodwin,

Case No. 12-cv-180 (KMM/DTS)

Plaintiff,
v.
Lori Swanson et al.,
Defendants.

William McRae,

Case No. 12-cv-221 (KMM/DTS)

Plaintiff,
v.
Lori Swanson et al.,
Defendants.
William Mosby,

Case No. 12-cv-320 (KMM/DTS)
Plaintiff,

v.
Lori Swanson et al.,
Defendants.

CASE 0:12-cv-00135-KMM-DTS Doc. 27 Filed 03/15/23 Page 2 of 6

ORDER ADOPTING
REPORT AND RECOMMENDATION
These matters are before the Court on the Order and Report and Recommendation (“R&R”)
issued by United States Magistrate Judge David T. Schultz on January 24, 2023. [Bishop v.
Swanson, No. 12-cv-135, Dkt. 20; Goodwin v. Swanson, No. 12-cv-180, Dkt. 18; McRae v.
Swanson, No. 12-cv-221, Dkt. 20; Mosby v. Swanson, No. 12-cv-320, Dkt. 20.] Judge Schultz
exhaustively reviewed the lengthy, and substantially similar, complaints in these cases and
recommends that many of the claims and certain defendants be dismissed for a variety of reasons.
Judge Schultz also recommends that certain portions of the Plaintiffs’ claims survive. The
Plaintiffs in Case Nos. 12-cv-135, 12-cv-180, and 12-cv-221—Merel Evans Bishop, Joseph
Goodwin, and William McRae, respectively—have not objected to the R&Rs entered in their
individual cases. William Mosby, the Plaintiff in Case No. 12-cv-320, filed Objections to the R&R
entered in his case on February 23, 2023. [No. 12-cv-320, Dkt. 28.]
The Court reviews de novo any portion of the R&R to which specific objections are made.
28 U.S.C. § 636(b)(1); D. Minn. LR 72.2(b). In the absence of objections, the Court reviews the
R&R for clear error. Nur v. Olmsted County, 563 F. Supp. 3d 946, 949 (D. Minn. 2021) (citing
Fed. R. Civ. P. 72(b) and Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam)).
Based on the Court’s careful review of the R&R and the record in this case, the Magistrate Judge
committed no error.
Mosby’s Objections
In his Objections, Mr. Mosby addresses two of the causes of action that Judge Schultz
considered in the R&R: (1) COA 7—“Cruel and Unusual Punishment”; and (2) COA 9—“Denial
of Due Process in Violation of the 14th Amendment of the United States Constitution and 42
U.S.C. § 1983.” [No. 12-cv-320, Dkt. 28 at 1–3.]

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COA 7
With respect to COA 7, Judge Schultz observed that the Plaintiffs in these cases have
alleged that the Defendants’ actions have subjected them to cruel and unusual punishment; as
civilly committed persons, their claims are governed by the standards of the Fourteenth
Amendment, and not the Eighth Amendment; that the ruling in the Karsjens litigation precludes
re-litigation of a wide range of claims that MSOP policies and conditions constitute
unconstitutional punishment under the applicable standard; and that it should be left for another
day to resolve whether anything remains of this claim that is not foreclosed by Karsjens on claim
preclusion grounds. [R&R at 21–25]. Accordingly, the R&R recommends dismissal with prejudice
of COA 7 to the extent that it raises policies and conditions already addressed in the Karsjens
litigation. [Id. at 46].
Mr. Mosby states that he “agrees with the Magistrate [Judge] to the extent that he
recommends denial of the policies that have been previously addressed in the Karsjens litigation,
but would ask this Court to allow the policies that have not been addressed via Karsjens to move
forward.” [No. 12-cv-320, Dkt. 28 at 1–2.] That is precisely what Judge Schultz has recommended
that the Court do. The Court will therefore accept the recommendation that the portions of COA 7,
if any, that were not resolved by the Karsjens litigation be allowed to survive the screening of
these Complaints so that they may be addressed through further litigation, including, if necessary,
any motions to dismiss.
COA 9
Turning to COA 9, Judge Schultz found that the Plaintiffs in these cases alleged that
Defendants violated their due process rights through the conduct described throughout their
lengthy complaints. Judge Schultz next examined the Plaintiffs’ procedural-due-process claims,

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explaining that they are “rise or fall doctrinally alongside the punishment claims in COA 7.” [R&R
at 26–27.] Because of this overlap, Judge Schultz concluded that the Karsjens decision finding that
various policies and practices at MSOP do not constitute unconstitutional punishment has a
preclusive effect on the procedural-due-process claims in COA 9 to the same extent that finding
precludes the punishment claims in COA 7. [Id. at 27–28.] Judge Schultz recommended then that
COA 9 be dismissed, but that the parties be required to determined as these cases proceed which
policy-based claims are precluded as a result of Karsjens, and which remain for purposes of
COAs 7 and 9. [Id. at 28] Finally, Judge Schultz concluded that the Complaints in these matters
do not state a claim of a substantive-due-process violation and that COA 9 be dismissed to the
extent that it alleges the same. [Id.; see also id. at 47.]
Here too, Mr. Mosby states that he agrees with Judge Schultz “as to dismissal of all claims
that parallel with the Karsjens litigation, but asks this Court to allow the procedural due process
claims that do exist to stand as there are several this Plaintiff believes do not fall under the
preclusion clause of either Res Judicata or Collateral Estoppel.” [No. 12-cv-320, Dkt. 28 at 2.]
Because Mr. Mosby has not disagreed with any aspect of the R&R, the Court construes this as his
agreement with Judge Schutlz’s recommendation as to COA 9
Finally, Mr. Mosby asks the Court to make a referral of his case to the Federal Bar
Association’s Pro Se Project and to allow the Plaintiffs who are located in different facilities to
communicate with one another via videoconferencing platforms or similar means. [No. 12-cv-320,
Dkt. 28 at 2.] The Court declines to make such a referral or order any such relief at this time.

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Accordingly, IT IS HEREBY ORDERED THAT:
1. The R&Rs in these cases [Bishop v. Swanson, No. 12-cv-135, Dkt. 20; Goodwin v.
Swanson, No. 12-cv-180, Dkt. 18; McRae v. Swanson, No. 12-cv-221, Dkt. 20; Mosby
v. Swanson, No. 12-cv-320, Dkt. 20] are ACCEPTED;
2. The Complaints are DISMISSED (for lack of jurisdiction) to the extent that they assert
official-capacity § 1983 claims seeking damages against employees of the State of
Minnesota.
3. The Complaints are DISMISSED (for failure to state a claim) to the extent that they
assert individual-capacity § 1983 claims seeking damages against employees of the
State of Minnesota.
4. The Complaints are DISMISSED to the extent that they purport to bring claims under
the Minnesota Constitution.
5. The remainder of the following causes of action are DISMISSED:
a.

COA 1 (failure to provide treatment).

b.

COA 2 (unreasonable searches and seizures), except for Plaintiffs’ claims
that MSOP policies are causing (1) impermissible monitoring of Plaintiffs’
calls with their attorneys, and (2) actual property losses.

c.

COA 3 (invasion of privacy), except for Plaintiffs’ claims that MSOP
policies are causing impermissible monitoring of Plaintiffs’ calls with their
attorneys.

d.

COA 4 (denial of access to legal materials and counsel).

e.

COA 5 (denial of liberty).

f.

COA 6 (denial of less restrictive alternative).

g.

COA 7 (cruel and unusual punishment), to the extent that it raises policies
and conditions already addressed in the Karsjens litigation.

h.

COA 8 (double jeopardy).

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i.

COA 9 (due process), to the extent that it raises (i) procedural-due-process
claims concerning policies and conditions already addressed in the Karsjens
litigation, or (ii) substantive-due-process claims.

j.

COA 10 (conspiracy to deny due process).

k.

COA 11 (intentional infliction of emotional distress).

l.

COA 12 (negligent infliction of emotional distress).

m.

COA 13 (violation of the U.S. Constitution’s Contracts Clause).

n.

COA 14 (negligent hiring and credentialing).

o.

COA 16 (supervisor liability).

p.

COA 17 (violation of police powers).

q.

COA 18 (violation of oath of office)

r.

COA 19 (support for preventative detention).

s.

COA 20 (violations of rights to health care and affordable housing).

t.

COA 21 (conspiracy to place Plaintiffs “outside of the law”).

u.

COA 22 (outrageous government conduct).

6. The following Defendants are DISMISSED from these actions:
a.

In Bishop v. Swanson, No. 12-CV-135 (D. Minn.), “Olmsted County Social
Services John Doe.”

b.

In Goodwin v. Swanson, No. 12-CV-180 (D. Minn.), “Clearwater County
Social Services Sandy Nelson.”

c.

In McRae v. Swanson, No. 12-CV-221 (D. Minn.), and Mosby v. Swanson,
No. 12-CV-320 (D. Minn.), “Hennepin County Social Services James
O’Keefe.”

Date: March 15, 2023

s/ Katherine M. Menendez
Katherine M. Menendez
United States District Judge

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