Brooks v. Roy et al
ORDER overruling Plaintiff's Objections 44 and adopting the Magistrate Judge's Report and Recommendation 43 ; granting Defendants' Motion to Dismiss or for Summary Judgment 9 ; dismissing Counts 1, 2, and 3 of the Complaint with prejudice; and dismissing the remaining state law claims without prejudice. Signed by Judge Susan Richard Nelson on 1/14/2014. (ACY)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Wesley Eugene Brooks,
Case No. 12-cv-316 (SRN/JSM)
Tom Roy, David Crist, Terry Carlson,
Nenette Larson, Bruce Reiser, Douglas
Panser, James Schaffer, and John/Jane
F. Clayton Tyler and Karen E. Mohrlant, F. Clayton Tyler PA, 331 2nd Avenue South,
Suite 230, Minneapolis, Minnesota 55401; and Karin Ciano, Karin Ciano Law PLLC,
310 4th Avenue South, Suite 5010, Minneapolis, Minnesota 55415, for Plaintiff.
Angela Behrens, Minnesota Attorney General’s Office, 445 Minnesota Street, Suite 900,
Saint Paul, Minnesota 55101, for Defendants.
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on Plaintiff’s Objections [Doc. No. 44] to United
States Magistrate Judge Janie S. Mayeron’s December 7, 2012, Report and
Recommendation (“R&R”) [Doc. No. 43]. The Magistrate Judge recommended that (1)
Defendants’ Motion to Dismiss or for Summary Judgment [Doc. No. 9] be granted; (2)
Counts 1, 2, and 3 of the Complaint [Doc. No. 1] be dismissed with prejudice; and (3) the
remaining state law claims be dismissed with prejudice. For the reasons set forth below,
Plaintiff’s Objections are overruled and the Court adopts the R&R in its entirety.
As the Magistrate Judge’s R&R documents the factual and procedural background of
this case, the Court incorporates it by reference. Plaintiff Wesley Eugene Brooks, a member
of the Shakopee Mdewakanton Sioux (Dakota) Community, is currently serving a six-year
sentence at the Minnesota Correctional Facility at Faribault (“MCF-FRB”) for first-degree
Driving While Impaired. Plaintiff was ordered to complete chemical dependency treatment
via the New Dimensions program at MCF-FRB, which he began on November 14, 2011.
The New Dimensions program uses cognitive behavior therapy to help reframe
cognitive distortions. (Aff. of Jennifer Nemecska ¶ 4 [Doc. No. 23].) During a typical
week, program participants have daily group therapy for two hours (except on Tuesdays),
and they individually meet with therapists as needed to assess treatment planning. (Id.)
Participants also attend lectures on various topics, such as drug education, criminal and
addictive thinking, release and reintegration, socialization, and values. (Id.) On a monthly
basis, program therapists assess each client’s progress. (Id. ¶ 5.) During this review, each
therapist presents a client’s case and discusses the following: a client’s attitude toward
treatment; a client’s openness to addressing treatment barriers and problems; a client’s
willingness to identify the existence of a drug and crime issue; and how willing a client is to
change and become a productive member of society. (Id. ¶ 5.)
Jennifer Nemecska, Plaintiff’s primary therapist in the New Dimensions Program,
states that Plaintiff resisted treatment from the outset: regularly arguing with staff, denying
his need for treatment, and inadequately completing treatment assignments. (Id. ¶ 7.)
During his first few weeks in treatment, Plaintiff used his assignments to address unrelated
issues and to complain about the lack of a treatment program specific to Native Americans.
Plaintiff perceives the New Dimensions program to involve religious aspects, but
this belief is unfounded. (Nemecska Aff. ¶ 13 [Doc. No. 23].) As part of treatment,
offenders are encouraged to participate in “pro-social” activities. (Id.) These activities are
meetings that occur in an offender’s living unit or other buildings on the MCF-FRB campus.
(Id.) Offenders are encouraged to attend two pro-social activities each week. (Id.) They
can choose from religious programming at the facility, various “anonymous” programs like
Alcoholics Anonymous, and other meetings like Alternative to Violence and Restorative
Justice. (Id.) Plaintiff’s participation in Native American activities offered to MCF-FRB’s
general population counts as a pro-social activity. (Id.) Other Native-American offenders
have completed the New Dimensions program successfully. (Id.)
Plaintiff has submitted several Offender Kite Forms to prison staff about his
treatment program and how it allegedly conflicts with his Native American beliefs.
(Offender Kite Forms [Doc. No. 29-1].) These forms include:
• November 23, 2011 – Plaintiff sent a kite to Ms. Nemecska, asking why his
participation in Native American ceremonies did not count as “prosocial [sic]
activities” while in treatment. Ms. Nemecska responded that it was at the therapist’s
discretion, and that religious activities could count as one of the two pro-social
requirements of treatment. (Id. at 1.)
• December 5, 2011 – Plaintiff sent two kites to Ms. Nemecska, asking why he had
been placed at the “decision table” about a “thinking report” he drafted, and whether
the primary purpose of the treatment program was behavior modification. Ms.
Nemecska responded that the treatment program was not challenging his core
beliefs, and the purpose of the treatment program was to change his behavior. (Id. at
• January 3, 2012 – Plaintiff sent a kite to Mr. Houff, the previous director of the
New Dimensions chemical dependency treatment program, asking about the process
for transferring to a Native American treatment program. Mr. Houff responded that
he did not know of any Native American program at Minnesota Department of
Corrections (“MDOC”), and staff had told him that they could incorporate Native
American specific curriculum into his treatment. Mr. Houff also stated that if
Plaintiff was not satisfied by this response, Plaintiff’s next step was to contact
Douglas Panser, Associate Director of Behavioral Health for MDOC. (Id. at 4.)
Subsequently, Plaintiff spoke with Mr. Houff and asked if he could attend the Maska-wisen Program in Sawyer, Minnesota, but Mr. Houff denied this request.
• February 1, 2012 – Plaintiff sent a kite to James Schaffer, the present director of the
New Dimensions chemical dependency treatment program. Plaintiff sought
permission to count all of his Native American spirituality activities toward his prosocial requirements and notified Mr. Schaffer that he had been going to Narcotics
Anonymous. Mr. Schaffer responded that his spiritual activity counted as pro-social
activities and Plaintiff was not required to attend Narcotics Anonymous. (Id. at 5.)
• February 2, 2012 – Plaintiff sent a kite to Mr. Panser, requesting transfer to a Native
American treatment center for needed care, conditional medical release, or a
furlough. Mr. Panser responded that MCF-FRB had treatment supports to meet his
needs, such as the Red Road and White Bison groups that are culturally specific to
Native Americans. (Id. at 6.)
• February 21, 2012 – Plaintiff sent a kite to Mr. Panser, stating that the Red Road
and White Bison were not treatment programs, and that they were unavailable at the
New Dimensions program. Mr. Panser responded that the Red Road and White
Bison were not treatment programs, but they were cultural specific supports that
could be incorporated into treatment. Mr. Panser stated that Plaintiff had not availed
himself of these supports. Mr. Panser also stated that if Plaintiff wanted to start a
Native American support group, he could and materials for him to do so were
available. (Id. at 7.)
• February 21, 2012 – Plaintiff sent a kite to Ms. Nemecska, asking her to clarify how
he was resisting treatment, whether she was trying to make him look bad, or had
“something personal against me.” Ms. Nemecska responded with examples of
resisting treatment. She also stated that she had nothing personal against Plaintiff
and was not trying to make him look bad. (Id. at 8.)
Plaintiff states that he did not file a formal prison grievance about the treatment
program, because he was allegedly told that there was no appeal from treatment decisions.
Plaintiff also expressed concern that Ms. Nemecska would be hostile to grievances, and that
using the prison grievance system might subject him to discipline and expulsion from
treatment. (Aff. of Wesley Eugene Brooks in Opp’n to Defs.’ Mot. for Summ. J. ¶ 16 [Doc.
No. 29]; Aff. of Wesley Eugene Brooks in Supp. of his Objection to the Magistrate Judge’s
Report & Recommendation ¶ 48 [Doc. No. 32].)
On February 7, 2012, Plaintiff sued the following, individually and in their official
capacities: Tom Roy, Commissioner of the Minnesota Department of Corrections
(“MDOC”); David Crist, Deputy Commissioner of the MDOC; Terry Carlson, Assistant
Commissioner of the MDOC; Nanette Larson, Director of Health Services of the MDOC;
Bruce Reiser, Warden of MCF-FRB; Douglas Panser, Director of Psychological Services at
MCF-FRB; James Schaffer, Director of New Dimensions Chemical Dependency Program;
and John/Jane Does 1-10, who are members of the New Dimensions program—all for
violations of the First Amendment of the United States Constitution under 42 U.S.C. §
1983; Section 3 of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §
2000cc-1 (“RLUIPA”); the American Indian Religious Freedom Act, 42 U.S.C. § 1996
(“AIRFA”); and the Freedom of Conscience clause under Article I, § 16 of the Minnesota
Constitution. (Compl. [Doc. No. 1].) After beginning this lawsuit, Plaintiff was terminated
from the MCF-FRB chemical dependency program for non-compliance with the program.
On March 1, 2012, Defendants moved to dismiss Plaintiff’s Complaint, or in the
alternative, to enter summary judgment. (Defs.’ Mot. to Dismiss or for Summ. J. [Doc. No.
9].) The Magistrate Judge recommended dismissing Plaintiff’s claims under the AIRFA, 42
U.S.C. § 1996, and his individual-capacity claims under the RLUIPA, 42 U.S.C.§ 2000cc-1,
for failure to state a claim; entering summary judgment on the remaining federal claims
based on Plaintiff’s failure to exhaust his administrative remedies; and declining to exercise
supplemental jurisdiction over Plaintiff’s state-law claims. (Dec. 7, 2012, Report and
Recommendation [Doc. No. 43].)
Plaintiff does not challenge the recommended dismissal of his AIRFA and
individual-capacity RLUIPA claims. (Pl.’s Objections to Report and Recommendation at 2
[Doc. No. 44].) Plaintiff, however, objects to the recommended entry of summary judgment
on the remaining federal claims, arguing that there is a question of material fact as to
whether he exhausted his administrative remedies. (Id.) Plaintiff further argues that
because the First Amendment and official-capacity RLUIPA claims survive summary
judgment, the Court should exercise supplemental jurisdiction over the state law claims.
A. Standard of Review
A party “may file and serve specific written objections to a magistrate judge’s
proposed findings and recommendations.” D.Minn. LR 72.2(b)(1). The district court
will review de novo those portions of the R&R to which an objection is made, and it
“may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(3);
D.Minn. LR 72.2(b)(3). Ordinarily, the district judge relies on the record of proceedings
before the magistrate judge. D.Minn. LR 72.2(b)(3).
As to the underlying motion to dismiss, or in the alternative, for summary judgment,
a motion to dismiss becomes a motion for summary judgment if matters outside the
pleadings are considered. See FED. R. CIV. P. 12(d); Brooks v. Midwest Heart Group, 655
F.3d 796, 799-800 (8th Cir. 2011). Summary judgment must be granted if the movant
shows that no genuine dispute of material fact exists. FED. R. CIV. P. 56(a). A fact is
“material” if “it might affect the outcome of the suit under the governing law,” and a dispute
is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
ruling on a summary judgment motion, the Court views the evidence and the inferences that
may be reasonably drawn from it in the light most favorable to the non-moving party.
Enter. Bank v. Magna Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). A party opposing a
summary judgment motion, however, “may not rest upon mere allegations or denials of his
pleading, but must set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256.
B. Exhaustion of Available Administrative Remedies
The Prison Litigation Reform Act of 1995 requires prisoners to exhaust
administrative remedies before filing suit to challenge the conditions of their confinement.
See 42 U.S.C. § 1997(e)(a) (“No action shall be brought with respect to prison conditions . .
. by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”). Proper exhaustion “demands
compliance with an agency’s deadlines and other critical procedural rules.” Woodford v.
Ngo, 548 U.S. 81, 90 (2006). Defendants argue that Plaintiff failed to exhaust his
administrative remedies before commencing this action. Plaintiff argues that Defendants
prevented him from pursuing his administrative remedies.
The parties do not dispute the Department of Corrections’ (“DOC”) exhaustion
procedure. To exhaust challenges to treatment directives and programming decisions, DOC
Rule 500.308 requires an offender to appeal first to his correctional facility’s psychological
services director and then to the DOC’s Director of Behavioral Health Services. (Aff. of
Steven Allen ¶ 3 [Doc. No. 12].) An appeal to the Director of Behavioral Health Services is
necessary for an offender to exhaust his available administrative remedies. (Id.)
On other issues, the offender must follow the procedure established in DOC Rule
303.100. This rule requires the offender to send kites to appropriate staff, following a chain
of command, before pursuing the formal grievance process. (Aff. of Kobie Hudson ¶¶ 3, 5
[Doc. No. 13]; Minnesota Department of Corrections Grievance Procedure [Doc. No. 131].) Labeling a kite, letter, or other correspondence with DOC staff as a grievance does not
convert it to a formal grievance. (Hudson Aff. ¶ 3 [Doc. No. 13].) The formal grievance
process here has two levels: first, the offender must file a grievance with the grievance
coordinator at his correctional facility, and the facility’s warden or designee decides the
grievance. (Id.) If an offender fears retaliation by the facility, he may file the grievance
directly with the general counsel and litigation manager at the DOC’s Central Office. (Id.)
If he is dissatisfied with the decision, he may then file a grievance appeal, which is decided
by the Commissioner of Corrections, the Assistant Commissioner, or the Deputy
Commissioner. (Id.) An offender exhausts the DOC’s available administrative remedies
only by filing a formal grievance and grievance appeal. (Id.)
The Magistrate Judge concluded that
regardless of how one characterizes Brooks’ complaints to staff regarding his
chemical dependency treatment—as a challenge to the assessment or the
program, a challenge to the impact of the program’s content (or lack of
content) on his religious beliefs, or a challenge to the program’s location—it
is evident that Brooks did not exhaust the administrative remedies set forth in
either MDOC 500.308 or MDOC 300.100.
(Dec. 7, 2012, Report and Recommendation at 25 [Doc. No. 43].) The Court agrees.
Plaintiff was assessed in April 2011 regarding whether any chemical dependency treatment
was appropriate, and on November 14, 2011, Plaintiff began his treatment with the New
Dimensions program at MCF-FRB. If viewed under DOC Rule 500.308, the record does
not show that Plaintiff appealed the assessment or the program treatment to the correctional
facility’s psychological services director. Plaintiff argues that he submitted kites to Ms.
Nemecska, Mr. Houff, Mr. Schaffer, and Mr. Panser, contesting the denial of his request for
a transfer, conditional medical release, or a furlough. The use of the kite system, however,
does not satisfy the formal grievance process. King v. Dingle, 702 F. Supp. 2d 1049, 106768 (D. Minn. 2010). Even if the Court viewed the kites as grievances—which it does not—
Plaintiff never appealed anything to the DOC’s director of behavioral health services, as
required under Rule 500.308. The Court therefore finds that Plaintiff did not exhaust his
administrative remedies under DOC Rule 500.308.
Similarly, Plaintiff has not exhausted his administrative remedies under DOC Rule
300.100. Plaintiff filed kites, as mentioned earlier, but he never filed a formal grievance
with the facility grievance coordinator or the general counsel and litigation manager at the
DOC’s Central Office. Nor did he ever file a formal grievance appeal. Where neither level
of the grievance procedure was met, Plaintiff failed to exhaust his administrative remedies
under Rule 300.100.
Plaintiff argues that he was prevented from filing a formal grievance because (1)
New Dimensions staff, Ms. Nemecska and Mr. Schaffer, told him that treatment decisions
were not appealable; (2) he was concerned that Ms. Nemecska would be as hostile to
grievances as she was to kites; and (3) he was concerned that using the prison grievance
system might subject him to discipline and expulsion from treatment. (Aff. of Wesley
Eugene Brooks in Opp’n to Defs.’ Mot. for Summ. J. ¶ 16 [Doc. No. 29]; Aff. of Wesley
Eugene Brooks in Supp. of his Objection to the Magistrate Judge’s Report &
Recommendation ¶ 48 [Doc. No. 32].) The Court respectfully disagrees. Other than
Plaintiff’s own statements, there is no evidence that New Dimensions staff denied him of
his right to file a grievance. Rather, the record shows that all offenders receive information
about grievance procedures when they enter the DOC’s custody, and they have access to all
DOC policies while in custody. (Third Aff. of Kobie Hudson ¶ 2 [Doc. No. 36].)
Moreover, 42 U.S.C. § 1997(e)(a) does not permit the Court to consider Plaintiff’s
subjective beliefs, logical or otherwise, in determining whether administrative procedures
are “available.” Lyon v. Del Vande Krol, 305 F.3d 806, 809 (8th Cir. 2002). Plaintiff’s
beliefs about Ms. Nemecska’s purported hostility toward grievances and his concern about
potential consequences to using the prison grievance system are insufficient to defeat
summary judgment on the issue of exhaustion. Plaintiff is required to use the formal
grievance procedure after his use of the informal kite system failed to resolve his issues.
Whether viewed through the lens of DOC Rule 500.308 or 300.100, Plaintiff has not
exhausted available administrative remedies before bringing suit. Accordingly, the Court
dismisses his claims under RLUIPA and 42 U.S.C. § 1983 with prejudice.
C. Supplemental Jurisdiction
A federal district court has the discretionary power to decline jurisdiction where it
has “dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3);
Johnson v. City of Shorewood, 360 F.3d 810, 819 (8th Cir. 2004). Because the Court
dismisses all of Plaintiff’s federal claims, it declines to exercise supplemental jurisdiction
over Plaintiffs’ remaining state law claims. Plaintiff’s state law claims are dismissed
The Court therefore OVERRULES Plaintiff’s Objections [Doc. No. 44] and
ADOPTS the Magistrate Judge’s December 7, 2012, Report and Recommendation [Doc.
No. 43]. Accordingly, IT IS HEREBY ORDERED that:
1. Defendants’ Motion to Dismiss or for Summary Judgment [Doc. No. 9] is
2. Counts 1, 2, and 3 of the Complaint are DISMISSED with prejudice; and
3. The remaining state law claims are DISMISSED without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
January 14, 2014
s/ Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Court Judge
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