Parsons v. Swanson et al

Filing 34

ORDER Directing the U.S. Marshal to effect Service and the Clerk's Office to send USM packet (Written Opinion) Signed by Magistrate Judge Dulce J. Foster on 8/24/2023. (MEH)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Raymond A. Parson, Jr.,

Case No. 12-cv-0646 (DWF/DJF)

Plaintiff,

ORDER AND
REPORT AND RECOMMENDATION

v.
Sharyn L. Barney, Nancy Johnston, Thomas
Lundquist, and Department of Human
Services,
Defendants.

This matter is before the Court for preservice review of Plaintiff Raymond A. Parson, Jr.’s
Third Amended Complaint (“3AC”) (ECF No. 31). For the reasons set forth below, the Court
recommends that the bulk of Mr. Parson’s 3AC be dismissed; however, it orders service on
Defendant Sharyn L. Barney because a limited portion of Count 1 in the 3AC survives its review
under 28 U.S.C. § 1915.
BACKGROUND
I.

Case History
Mr. Parson commenced this action in March 2012 by filing a “Complaint for Violations of

Civil Rights Under Title 42 [U.S.C.] §1981, §1982, §1983, §1985, §1986, §1988” (“Complaint”)
(ECF No. 1). The Complaint was over 145 pages long, named dozens of defendants, and
asserted thirty-two causes of action. (See id. at 1, 118–40. 1) As relevant here, the Complaint
presented wide-ranging attacks on procedures and policies at the Minnesota Sex Offender Program

1

For ease of reference, the Court cites to materials filed in this action using the page
numbers generated by the Court’s CM/ECF filing system.

(“MSOP”), where Mr. Parson has been civilly committed since 2007. (See id. at 42, 118–41; cf.
In re Civ. Commitment of Parson, No. A08-1731, 2009 WL 818925, at *1 (Minn. Ct. App.
Mar. 31, 2009) (affirming state-court decision ordering Mr. Parson’s commitment).)
Less than a week after Mr. Parson filed the Complaint, then–Chief Judge Michael J. Davis
entered an order staying this action (and numerous others) because of the then–ongoing classaction litigation in Karsjens v. Minnesota Department of Human Services, No. 11-CV-3659
(DWF/TNL) (D. Minn.). (See ECF No. 7 at 12–14.) Over the years, numerous follow-on orders
extended that stay—until October 3, 2022, when Chief Judge Patrick J. Schiltz entered an order
lifting it upon final judgment in Karsjens.

(See Docket; ECF No. 25 at 17, 24–25.)

October 7, 2022, the Court ordered Mr. Parson to file an amended complaint.

On

(See ECF

No. 20 at 4. 2)
Mr. Parson filed a short amended complaint in November 2022. (See ECF No. 21.) Later
that month, the Court noted that this pleading had problems as well: It did not clearly identify the
Defendants’ actions and failed to state a claim. (See ECF No. 23 at 1–4.) The Court ordered Mr.
Parson to submit a second amended complaint on or before January 13, 2023 and referred him to
the Federal Bar Association (“FBA”) for potential assistance from a volunteer lawyer. (See id.
at 4.) The Court later extended the deadline for Mr. Parson to file his second amended complaint
until March 14, 2023. (See ECF No. 26.)
As of March 13, 2023, the Court had not received an amended complaint, but based on an
ex parte request from Mr. Parson the Court extended the deadline until April 14, 2023 to allow
2

The Court observed that the original Complaint did not present a “short and plain
statement of [Mr. Parson’s] claim[s],” as required by Rule 8 of the Federal Rules of Civil Procedure
and failed to indicate the specific conduct (or omissions) at issue for the numerous individual
Defendants. The Court further noted Karsjens’s potential res judicata effect on this action. (See
ECF No. 20 at 1–3.)

2

more time for him to consult with a volunteer attorney, if possible, and to address problems with
his printer. (See, e.g., ECF No. 28 at 1.) Coincidentally, on that same day, the Clerk’s office
received and filed Mr. Parson’s second amended complaint (“2AC”) (ECF No. 29). 3
Mr. Larson filed his 3AC on July 10, 2023. (ECF No. 31.) He simultaneously filed a letter
stating he was able to receive help from a law firm based on the earlier FBA referral and suggesting
the 3AC reflected that assistance. (See ECF No. 32 at 1.) The Court subsequently entered an order
accepting that filing and establishing the 3AC as the operative pleading in this matter. (ECF
No. 33.)
II.

Third Amended Complaint
The 3AC names four defendants.

(See ECF No. 31 at 1.)

Three are individuals:

(1) Sharyn L. Barney, the MSOP’s “family medicine doctor … at the time of the events
underlying” the 3AC; (2) Nancy Johnston, the MSOP’s “[e]xecutive [d]irector”; and (3) Thomas
Lundquist, the MSOP’s “[h]ealth [c]are [p]rogram [d]irector.” (Id. at 1–3.) Mr. Parson sues all
three individuals in their individual and official capacities. (See id. at 1.) The fourth defendant is
“Department of Human Services,” which the Court construes as the Minnesota Department of
Human Services (“MDHS”)—“part of the executive branch of the State government of
Minnesota,” and as relevant here, the agency that oversees the MSOP. (See id. at 1, 3.)
Mr. Parson alleges that in 2012–13, during his confinement at the MSOP, he “was asked
to participate in a health service assessment to evaluate his medical condition.” (Id. at 3.) He
states that he had a “severe heat rash,” as well as “swelling around his neck, arms, hands, and
eyes”; “bleeding from his neck and arms”; and an eye infection. (Id.) Mr. Parson claims he

3

The 2AC indicates Mr. Parson completed it on or about March 3, 2023, and the envelope
conveying the filing is postmarked March 10, 2023. (See ECF No. 29 at 1; ECF No. 29-2 at 1.)

3

reported his condition to various individuals and asked “health service’s staff to prescribe the
medication needed for treatment.” (Id.) He says he was told, however, that Defendant Barney
would need to “approve the treatment,” even though “medications were already specified in [Mr.
Parson’s] medical record.” (Id.)
After two days, Mr. Parson met with Defendant Barney. (See id.) According to Mr. Parson,
Defendant Barney “refused to prescribe the necessary medicines or provide any other type of
medical care to treat [Mr. Parson’s] condition,” and furthermore, “provided no explanation as to
why [Mr. Parson] was denied medical care.” (Id. at 4.) Mr. Parson’s medical condition allegedly
worsened, and he “continued going to health services every other day to ask for help.” (Id.) Each
time, Defendant Barney “was present … and continued to refuse to provide medical attention.”
(Id.)

Mr. Parson alleges Defendant Barney even “mocked” him and threatened to issue

disciplinary reports against him and call security if he “did not leave health services.” (Id.)
Mr. Parson asserts he filed a “formal complaint” against Defendant Barney “before Health
Services,” and eventually raised the complaint “before the Hospital Review Board” (“HRB”). (Id.
at 4–5.) After Mr. Parson filed the complaint, Defendant Barney “agreed to have a conversation
with [him].” (Id. at 5.) But according to Mr. Parson, during this conversation Defendant “Barney
expressed herself in a discriminatory matter … using derogatory terms that referred to the color of
[his] skin.” (Id.) He specifically alleges she said, “Blackie, listen boy, you are not in the south no
more, you are up north with us now.” (Id.)
Mr. Parson alleges he reported Defendant Barney’s conduct to the MSOP staff, but that he
continued to suffer in pain, without medical care, for months. (See id.) Mr. Parson asserts that
because he did not get proper care, he was temporarily blinded in his left eye, suffered “[m]ental
and emotional trauma,” and sustained “[p]hysical marks and scars all over his body and constant

4

headaches.” (Id.) He also claims lost wages and “future earning capacity” and “[p]ast, present,
and future medical expenses.” (Id.)
Mr. Parson states that he eventually attended a “hearing held in front of the HRB Panel.”
(Id.) He asserts the panel found in favor of him, at which point he “communicated he wished to
pursue further action.” (Id.)
Mr. Parson brings five claims based on these allegations. Count 1 names all Defendants
and asserts that his treatment constitutes cruel and unusual punishment in violation of the United
States and Minnesota Constitutions. (See id. at 6–7.) Count 2 names only Defendant Barney and
claims she negligently failed to provide him proper medical care. (See id. at 7–9.) Count 3 also
names Defendant Barney, claiming her reported conduct constituted race and disability-based
discrimination. (See id. at 10–12.) In Count 4, Mr. Parson claims Defendants Johnston and
Lundquist failed to properly train or supervise Defendant Barney. (See id. at 12–14.) Finally,
Count 5 claims MDHS had “policies, practices, or customs” leading to violations of his federal
rights. (Id. at 15; see also id. at 14–17.) For relief, Mr. Parson asks for monetary damages;
“reasonable attorney fees”; and any “other legal, injunctive, or equitable relief as the Court deems
just and fair.” (Id. at 17.)
ANALYSIS
I.

Standard of Review
Rather than pay this action’s filing fee, Mr. Parson applied to proceed in forma pauperis

(“IFP”) (ECF No. 2). The Court grated his IFP application on March 31, 2023 (ECF No. 30). The
Court now reviews the 3AC under 28 U.S.C. § 1915 as a prerequisite to ordering service on the
Defendants.

Under

section 1915,

the

federal

statute

governing

IFP

proceedings,

“[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
dismiss the case”—that is, a case brought by an IFP litigant—“at any time if the court determines

5

that … the action … is frivolous [or] fails to state a claim on which relief may be granted ….” 28
U.S.C. § 1915(e)(2). While the wording here refers to “the case,” courts in this District routinely
dismisses portions of cases under this provision as well. See, e.g., Frelix v. Hendrie Grant Lending
Inc., No. 23-CV-0896 (DWF/TNL), 2023 WL 3571906, at *1 n.2 (D. Minn. May 18, 2023) (citing
cases); Hunter v. Mayo Clinic, No. 21-CV-0742 (ECT/HB), 2021 WL 1877638, at *2 n.3 (D.
Minn. Apr. 16, 2021) (same), report and recommendation adopted, No. 21-CV-742 (ECT/HB),
2021 WL 1873430 (D. Minn. May 10, 2021).
A case is frivolous when “it lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989); see also, e.g., Jones v. Norris, 310 F.3d 610, 612 (8th
Cir. 2002) (citing Neitzke). With respect to legal frivolity, a claim “lacks an arguable basis in law
if [it] is based on an indisputably meritless legal theory.” Martinez v. Turner, 977 F.2d 421, 423
(8th Cir. 1992) (citing Neitzke, 490 U.S. at 327); see also, e.g., Hines v. Minn. Dep’t of Corr.,
No. 18-CV-3250 (ECT/BRT), 2020 WL 1102210, at *11 (D. Minn. Jan. 31, 2020) (same), report
and recommendation adopted, 2020 WL 1082484 (D. Minn. Mar. 6, 2020).
In determining whether a complaint states a claim on which a court may grant relief, the
court accepts the complaint’s factual allegations as true and draws all reasonable inferences in the
plaintiff’s favor. See, e.g., Varga v. U.S. Bank Nat. Ass’n, 764 F.3d 833, 836 (8th Cir. 2014) (citing
Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 742 F.3d 845, 854 (8th Cir. 2014)). A
complaint’s factual allegations need not be detailed, but they must “raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing authorities). A
complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A court’s consideration of whether a
pleading states a claim is “context-specific” and the court must “draw on its judicial experience

6

and common sense.” Id. at 679; see also, e.g., Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir.
2015) (en banc) (quoting Magee v. Trs. of Hamline Univ., 747 F.3d 532, 535 (8th Cir. 2014)
(cleaned up)). Although pro se complaints must be construed liberally, such complaints still must
allege sufficient facts to state a claim as a matter of law. See, e.g., Sandknop v. Mo. Dep’t of Corr.,
932 F.3d 739, 741 (8th Cir. 2019) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)).
The Court need not accept as true conclusory allegations, Hanten v. Sch. Dist. of Riverview
Gardens, 183 F.3d 799, 805 (8th Cir. 1999), or legal conclusions drawn by the pleader from the
facts alleged, Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990).
II.

Global Issues
A.

Direct Claims Under the United States Constitution

The Court begins by addressing certain global issues affecting multiple parts of the 3AC.
The first issue concerns the procedural vehicle under which Mr. Parson brings certain claims. Each
of the 3AC’s counts suggests Mr. Parson means to bring claims under the United States
Constitution’s Eighth Amendment. (See ECF No. 31 at 6–14.) To the extent he seeks to bring
claims directly under the United States Constitution, he cannot do so. It is well established that a
plaintiff generally cannot assert claims directly under the Constitution.

Instead, the usual

procedural vehicle for such claims is 42 U.S.C. § 1983. See, e.g., Azul-Pacifico, Inc. v. City of Los
Angeles, 973 F.2d 704, 705 (9th Cir. 1992) (“Plaintiff has no cause of action directly under the
United States Constitution …. [A] litigant complaining of a violation of a constitutional right must
utilize 42 U.S.C. § 1983.” (citing cases)); Blackwell v. W. St. Paul Police Dep’t, No. 23-CV-0661
(ADM/DJF), 2023 WL 3997967, at *2 (D. Minn. May 23, 2023) (citing cases, including AzulPacifico), report and recommendation adopted, 2023 WL 3996266 (D. Minn. June 14, 2023). Any
attempt to bring direct constitutional claims is legally frivolous, and because this problem is not
fixable, the Court recommends dismissing these claims with prejudice.

7

B.

Claims Under 42 U.S.C. § 1988

In Counts 1, 4, and 5, Mr. Parson purports to bring claims under 42 U.S.C. § 1988. (See
ECF No. 31 at 6, 12, 14.) Section 1988 establishes certain procedures governing “[p]roceedings
in vindication of civil rights” and provides for attorney fees and expert fees in certain situations.
See 42 U.S.C. § 1988(b)–(c). To the extent Mr. Parson mentions section 1988 only to highlight
Defendants’ possible future liability for such fees if the prerequisites are satisfied, the Court need
not opine on whether section 1988 applies here. But Mr. Parson cannot bring claims against
Defendants directly as free-standing claims under section 1988. The United Sates Supreme Court
has clarified that section 1988 establishes no independent cause of action. See, e.g., Moor v.
Alameda Cnty., 411 U.S. 693, 702 (1973) (“Section 1988 does not enjoy the independent stature
of an ‘Act of Congress providing for the protection of civil rights[.]’ Rather, as is plain on the face
of the statute, the section is intended to complement the various acts which do create federal causes
of action for the violation of federal civil rights.”) (citations and footnote omitted); see also, e.g.,
Drake v. Obama, 664 F.3d 774, 785 n.5 (9th Cir. 2011) (same); Berry v. City of Muskogee, 900
F.2d 1489, 1503 (10th Cir. 1990) (same). For these reasons, the Court recommends dismissing
the 3AC with prejudice to the extent it seeks to press independent claims under 42 U.S.C. § 1988.
C.

Claims under 42 U.S.C. § 2000dd

Counts 1–3 and 5 each refer to 42 U.S.C. § 2000dd. (See ECF No. 31 at 6–7, 10, 14.)
Under § 2000dd(a), “[n]o individual in the custody or under the physical control of the United
States Government … shall be subject to cruel, inhuman, or degrading treatment or punishment.”
As this wording suggests, however, section 2000dd bars certain treatment to those in the custody
or control of federal authorities. It does not provide any cause of action to individuals—like Mr.
Parson—who are subject to state custody or control. See, e.g., Holloway v. Governor, N.H.,
No. 21-CV-0865 (PB), 2022 WL 4468548, at *3 n.3 (D.N.H. Sept. 26, 2022); Green v. Vasquez,

8

No. 2:22-CV-00480 (KRS), 2022 WL 2643567, at *2 (D.N.M. July 8, 2022). The Court therefore
recommends dismissing the 3AC with prejudice to the extent Mr. Parson purports to bring claims
under 42 U.S.C. § 2000dd.
D.

Claims Under the Minnesota Constitution

In Counts 1–3 and 5, Mr. Parson seeks to bring claims under certain provisions of Article I
of the Minnesota Constitution—specifically, sections 2 and 5. (See ECF No. 31 at 6, 10, 14.) These
claims also fail as a matter of law, as the United States Court of Appeals for the Eighth Circuit has
held there is no private right of action for violations of the Minnesota Constitution.

See

Eggenberger v. W. Albany Twp., 820 F.3d 938, 941 (8th Cir. 2016) (citing cases); see also, e.g.,
Pittman v. Swanson, No. 11-CV-3658 (PJS/TNL), 2023 WL 2404044, at *15 n.15 (D. Minn. Jan.
27, 2023) (citing Eggenberger), report and recommendation adopted, 2023 WL 2238703
(D. Minn. Feb. 27, 2023). The Court accordingly recommends dismissing the 3AC with prejudice
to the extent it brings claims under the Minnesota Constitution.
E.

Claims Against MDHS

Counts 1 and 5 assert claims against MDHS, with Count 5 naming MDHS as the only
defendant. (See ECF No. 31 at 6, 14.) Sovereign immunity bars these claims. Under the United
States Constitution’s Eleventh Amendment, “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State ….” U.S. Const. amend. XI. The wording here uses
the phrase “another State,” but it is black-letter law that unconsenting States are also immune from
their own citizens’ federal suits. See, e.g., PennEast Pipeline Co., LLC v. New Jersey, 141 S. Ct.
2244, 2258 (2021) (citing Hans v. Louisiana, 134 U.S. 1 (1890)); Elder v. Gillespie, 54 F.4th 1055,
1062 (8th Cir. 2022) (citing Edelman v. Jordan, 415 U.S. 651, 662–63 (1974)). This immunity
covers claims for any form of relief; not just damages claims. See, e.g., Kentucky v. Graham, 473

9

U.S. 159, 167 n.14 (1985) (citing Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam)); Monroe
v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007) (citing cases). Eleventh Amendment
sovereign immunity generally deprives federal courts of subject matter jurisdiction over covered
claims. See, e.g., PennEast Pipeline Co., 141 S. Ct. at 2259 (quoting Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 72–73 (1996)); Courthouse News Serv. v. Gilmer, 48 F.4th 908, 911 (8th
Cir. 2022) (citing Edelman, 415 U.S. at 677–78).
While Mr. Parson does not name the State of Minnesota per se as a defendant, he names
MDHS, an agency of the State, and state agencies qualify for the same sovereign immunity as
states themselves. See, e.g., P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
144 (1999) (citing cases); 281 Care Comm. v. Arneson, 638 F.3d 621, 632 (8th Cir. 2011) (citing
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)). Because MDHS qualifies
for Eleventh Amendment sovereign immunity, the Court recommends dismissing the 3AC’s
claims against MDHS without prejudice based on lack of subject matter jurisdiction. It follows
that because Count 5 names MDHS exclusively, the Court recommends dismissing Count 5 in its
entirety on the same basis.
F.

Official Capacity Damages Claims

The 3AC seeks monetary damages generally on all counts against all Defendants “jointly
or separately” (see ECF No. 31 at 17). This means the 3AC’s various section 1983 claims all seek
damages from the named individual Defendants, not just in their individual capacities, but also in
their official capacities as employees of the State of Minnesota. Any such claims are nonviable.
Claims against individual defendants under section 1983 can name them in their individual
capacities, their official capacities, or both. See, e.g., Hafer v. Melo, 502 U.S. 21, 25 (1991)
(discussing differences between individual-capacity claims and official-capacity claims); Gorman
v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (same (citing Hafer)). To the extent a plaintiff sues

10

a state official in his or her official capacity, the claims are not “against the official” but “rather …
against the official’s office,” and so are “no different from [claims] against the State itself.” Will
v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989) (citing cases); see also, e.g., Veatch v.
Bartels Lutheran Home, 627 F.3d 1254 (8th Cir. 2010) (citing Baker v. Chisom, 501 F.3d 920, 925
(8th Cir. 2007)). Under these precedents, to the extent Mr. Parson seeks damages against the
individual defendants in their official capacities, he seeks damages against the State of Minnesota.
But any such claims against the State are barred by the State’s sovereign immunity as
discussed above. Thus, to the extent Mr. Parson’s damages demand extends to his official-capacity
claims against the individual defendants, Eleventh Amendment sovereign immunity bars those
claims. See, e.g., Papasan v. Allain, 478 U.S. 265, 278 (1986) (citing Ford Motor Co. v. Dep’t of
Treasury of Ind., 323 U.S. 459 (1945)); Elizabeth M. v. Montenez, 458 F.3d 779, 784 (8th Cir.
2006) (citing Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997)). The Court recommends
dismissing the 3AC without prejudice for lack of subject matter jurisdiction to the extent it purports
to bring damages claims against the individual Defendants in their official capacities. 4
III.

Count-Specific Issues
A.

Count 1

Having addressed the 3AC’s overarching deficits, the Court turns to its specific counts.
What remains of Count 1 is a claim under section 1983 for violating the United States

4

The 3AC also contains a nominal claim for injunctive relief. (See ECF No. 31 at 17,
requesting “other legal, injunctive, or equitable relief as the Court deems just and fair”.) To the
extent the 3AC’s injunctive-relief claim seeks prospective injunctive relief and targets the
individual defendants in their official capacities, Eleventh Amendment sovereign immunity does
not bar those claims. This is because of the doctrine of Ex parte Young, 209 U.S. 123 (1908). See,
e.g., Reed v. Goertz, 143 S. Ct. 955, 960 (2023) (noting doctrine); Johnson v. Griffin, 69 F.4th 506,
512 (8th Cir. 2023) (discussing doctrine). As discussed below, Mr. Parson’s claim for injunctive
relief fails for different reasons.

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Constitution’s Eighth Amendment, as asserted against the individual Defendants in their individual
capacities. (See ECF No. 31 at 6.) In relevant part, the Eighth Amendment states that “cruel and
unusual punishment” “shall not” be “inflicted.” U.S. Const. amend. VIII. Technically, the Eighth
Amendment binds the federal government, but under the Fourteenth Amendment, the ban on cruel
and unusual punishments applies to states as well. See, e.g., Jones v. Mississippi, 141 S. Ct. 1307,
1314 (2021); Brown v. Precythe, 46 F.4th 879, 883 (8th Cir. 2022) (en banc) (citing Miller v.
Alabama, 567 U.S. 460, 479 (2012)).
Mr. Parson bases Count 1 on allegedly improper medical care. (See ECF No. 31 at 6– 7.)
The United States Supreme Court has held that “although accidental or inadvertent failure to
provide adequate medical care to a prisoner would not violate the Eighth Amendment, ‘deliberate
indifference to serious medical needs of prisoners’ violates the Amendment because it constitutes
the unnecessary and wanton infliction of pain contrary to contemporary standards of decency.”
Helling v. McKinney, 509 U.S. 25, 32 (1993) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976));
see also, e.g., Leonard v. St. Charles Cnty. Police Dep’t, 59 F.4th 355, 360 (8th Cir. 2023) (noting
that prison officials can be liable for “‘deliberate indifference’” to prisoner’s “‘serious medical
needs’” (quoting Olson v. Bloomberg, 339 F.3d 730, 735 (8th Cir. 2003)).
To plead an Eighth Amendment claim based on improper medical care, a plaintiff must
allege that: (1) he had objectively serious medical needs; and (2) defendants subjectively knew of,
but deliberately disregarded, those needs. See Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th
Cir. 1997); Amen El v. Schnell, No. 20-CV-1327 (DSD/ECW), 2022 WL 1110981, at *11 n.12
(D. Minn. Jan. 31, 2022) (citing Dulany), report and recommendation adopted, 2022 WL 766402
(D. Minn. Mar. 14, 2022), aff’d, No. 22-2115, 2022 WL 17228817 (8th Cir. July 29, 2022). To
establish deliberate disregard, a prisoner must allege “more than negligence, more even than gross

12

negligence, and mere disagreement with treatment decisions does not rise to the level of a
constitutional violation.” Est. of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th
Cir. 1995); see also, e.g., DeShane v. City of Minneapolis, No. 21-CV-1452 (DWF/HB), 2022 WL
624579, at *6 (D. Minn. Mar. 3, 2022) (quoting Rosenberg).
The 3AC fails to assert particularized allegations against Defendants Johnston and
Lundquist in connection with Count 1. Mr. Parson generally asserts that “Defendants” denied his
request to be seen by a health professional other than Dr. Barney (ECF No. 31 at 4), but he does
not allege facts from which a reasonable inference might be drawn that either Defendant Johnston
or Defendant Lundquist was involved in that denial or—to the extent that they were—that they
had sufficient notice of Dr. Barney’s alleged misconduct to have reason to grant Mr. Parson’s
request. It is not enough for a plaintiff to assert claims against defendants sued in their individual
capacities collectively, rather, the plaintiff must allege facts demonstrating each defendant’s
particular involvement in the unconstitutional conduct alleged. Beck v. LaFleur, 257 F.3d 764,
766 (8th Cir. 2001); see also Pittman v. Swanson, No. 11-cv-3658 (PJS/TNL), 2023 WL 2404044,
at *2 (D. Minn. Jan. 27, 2023), report and recommendation adopted, 2023 WL 2238703 (D. Minn.
Feb. 27, 2023) ( “[I]t is not enough for a plaintiff seeking relief from a defendant in the defendant’s
individual capacity to allege that his rights were violated; the plaintiff must allege that his rights
were violated by the defendant.”) (emphasis in original). The Court recommends dismissing Count
1 to the extent it asserts claims against Defendants Lundquist and Johnston without prejudice for
these reasons.
In contrast, the 3AC asserts detailed allegations against Defendant Barney regarding Mr.
Parson’s requests for medical care and Defendant Barney’s refusal to provide such care. (ECF
No. 31 at 35.) These allegations are sufficient to survive prescreening review under 28 U.S.C.

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§ 1915, and the Court recommends allowing what remains against Count 1 as to Defendant Barney
to go forward. This recommendation is not a determination that Mr. Parson’s claims are ultimately
viable, however. The fact that the Court does not recommend dismissal at this time does not
preclude Defendant Barney from moving to dismiss the 3AC, asserting any argument regarding
the adequacy of Mr. Parson’s pleading, or raising any other defense to Mr. Parson’s claims.
B.

Count 2

Count 2 claims, in part, that Defendant Barney violated Mr. Parson’s rights under the
United States Constitution’s Eighth Amendment by denying him medical care. (See ECF No. 31
at 7–9.) This Count rises and falls with Count 1, which also names Defendant Barney and is based
on the same alleged improper denial of medical care. Consequently, the Court recommends
dismissing Count 2 with prejudice, as duplicative, to the extent it reasserts his Eighth Amendment
claim. See, e.g., CH Bus Sales, Inc. v. Geiger, No. 18-CV-2444 (SRN/KMM), 2019 WL 1282110,
at *11 (D. Minn. Mar. 20, 2019) (dismissing duplicative claim); Daum v. Planit Sols., Inc., 619 F.
Supp. 2d 652, 657 (D. Minn. 2009) (same).
Count 2 also claims Defendant Barney was negligent in denying him proper medical
treatment. (See ECF No. 31 at 7-9.) To prevail on a claim of medical negligence under Minnesota
law, a plaintiff must establish: “(1) the standard of care recognized by the medical community as
applicable to the particular defendant conduct, (2) that the defendant in fact departed from that
standard, and (3) that the defendant’s departure from the standard was a direct cause of [the
plaintiffs] injuries.” Plutshack v. Univ. of Minn. Hosps., 316 N.W.2d 1, 5 (Minn.1982). In
addition, a plaintiff must serve, along with the summons and complaint, an affidavit verifying that:
(1) an expert has reviewed the facts underlying the medical negligence claim and opines that the
defendant deviated from the applicable standard of care; or (2) expert review could not reasonably
be obtained before the action was commenced due to the applicable statute of limitations.

14

Minn.Stat. § 145.682, subds. 2-4. “[M]andatory dismissal with prejudice” results when the
plaintiff does not provide the expert review affidavit “within 60 days after demand for the
affidavit[.]” Id. § 145.682, subd. 6(a).
Here, Mr. Parson fails to plead the necessary elements to establish a medical negligence
claim since the 3AC does not address any standard of care recognized by the medical community
that Defendant Barney is alleged to have violated. There is also no indication Mr. Parson has
obtained the requisite affidavit from a medical expert necessary to avoid dismissal under
Minnesota law. While, in theory, Mr. Parson would have 60 days to produce the required affidavit
after any demand for it is made to avoid dismissal with prejudice, his ability to meet this
requirement is questionable in light of the significant passage of time since he filed this action.
Given that more than ten years have now passed since the alleged negligence occurred, procuring
an affidavit at this time is implausible at best. Because Mr. Parson does not point to any standard
of care that Dr. Barney allegedly violated, and because he has not proffered an affidavit in support
of his medical negligence claim as required under Minnesota law, the Court recommends his
common law negligence claim be dismissed without prejudice.
C.

Count 3

Count 3 also targets only Defendant Barney and alleges both “Denial of Medical Care” and
“Discrimination.” (ECF No. 31 at 10.) Count 3 asserts claims under section 1983 arising under
the Eighth Amendment, 42 U.S.C. § 12132, and 29 U.S.C. § 794. 5 (Id.) To the extent Count 3
brings an Eighth Amendment claim against Defendant Barney based on allegedly improper denial

5

Count 3 also asserts direct claims under the United States and Minnesota Constitutions
and a claim under 42 U.S.C. §§ 2000dd, which are not cognizable for the reasons previously
discussed.

15

of medical care, it is duplicative of Count 1. The Court recommends dismissing that portion of
Count 3 with prejudice for this reason.
This leaves Mr. Parson’s claims under 42 U.S.C. § 12132 and 28 U.S.C. § 794.
Section 12132 is a provision of the Americans with Disabilities Act of 1990, Pub. L. No. 101-336,
104 Stat. 337 (codified as amended, as relevant here, at 42 U.S.C. §§ 12131–34). Under
section 12132, “no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such entity.” To state a section 12132
claim, a plaintiff must allege “‘(1) that he is a qualified individual with a disability; (2) that he was
excluded from participation in or denied the benefits of the [a public entity’s] services, programs,
or activities, or was otherwise subjected to discrimination by the [public entity]; and (3) that such
exclusion, denial of benefits, or other discrimination was by reason of his disability.’” Rinehart v.
Weitzell, 964 F.3d 684, 688 (8th Cir. 2020) (quoting Baribeau v. City of Minneapolis, 596 F.3d
465, 484 (8th Cir. 2010)); see also, e.g., Jackson v. Hennepin Hosp., No. 19-CV-2392 (PJS/ECW),
2020 WL 532973, at *3 (D. Minn. Jan. 3, 2020) (citing cases), report and recommendation
adopted, 2020 WL 528898 (D. Minn. Feb. 3, 2020).
Under this standard, Mr. Parson’s 3AC fails to state a claim under section 12132.
Assuming Mr. Parson had a qualifying disability, nothing in the 3AC suggests Defendant Barney
decided not to provide benefits to Mr. Parson because of that disability. 6 (See ECF No. 31
at 10- 12.) Instead, the 3AC largely appears to ascribe Defendant Barney’s conduct to simple
cruelty or racial animus. (Id. at 5, 11.) Because the facts alleged in the 3AC do not support an

6

The Court makes no determination regarding whether Mr. Parson had a qualifying
disability under section 12132.

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inference that disability status somehow motivated the alleged denial of treatment, the Court
recommends dismissing Count 3 to the extent Mr. Parson asserts a claim under section 12132.
Count 3 also asserts a claim under 29 U.S.C. § 794, which is part of the Rehabilitation Act
of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified as amended at 29 U.S.C. §§ 701–797b). Under
section 794(a), “[n]o otherwise qualified individual with a disability in the United States … shall,
solely by reason of her or his disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance or under any program or activity conducted by any Executive agency ….” The
law is clear that “[c]ases interpreting either the ADA or the Rehabilitation Act are ‘applicable and
interchangeable’ because the Acts are ‘similar in substance.’” Gustafson v. Bi-State Dev. Agency
of Mo.-Ill. Metro. Dist., 29 F.4th 406, 412 (8th Cir. 2022) (quoting Randolph v. Rodgers, 170 F.3d
850, 858 (8th Cir. 1999)); see also, e.g., Murphy by Murphy v. Harpstead, 421 F. Supp. 3d 695,
713 (D. Minn. 2019) (citing Gorman, 152 F.3d at 912). The Court accordingly recommends
dismissing Count 3 to the extent it asserts a section 794 claim for the reasons previously
discussed—the 3AC does not assert that any improper conduct was motivated by discriminatory
animus based on an alleged disability. Because none of the grounds for relief asserted in Count 3
are potentially viable, the Court recommends dismissing this Count in its entirety. 7

7

Mr. Parson asserts racial discrimination based on Dr. Barney’s use of an alleged
derogatory racial slur against him (ECF No. 31 at 5, 11), but does not bring a claim under the
Constitution’s Equal Protection Clause (see generally ECF No. 31). Even if he had, the Court
would be compelled to recommend that it be dismissed because Mr. Parson makes no allegation
that individuals of other racial classifications received preferential or different medical care. See
Engquist v. Ore. Dep’t of Agr., 553 U.S. 591, 601 (2008) (equal protection plaintiffs must “allege
that they have been arbitrarily classified as members of an ‘identifiable group,’” then claim that
they have experienced unequal treatment because of that classification); Adam & Eve Jonesboro,
LLC v. Perrin, 933 F.3d 951, 959-60 (8th Cir. 2019) (“absent this threshold showing” the plaintiff
“does not have a viable equal protection claim”).

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D.

Count 4

Count 4 asserts claims against Defendants Johnston and Lundquist under 42 U.S.C. § 1983
based on their alleged failure to properly train or supervise Defendant Barney and their alleged
“Condoning the denial of Medical Care, Negligence, and Discrimination” by Defendant Barney. 8
(ECF No. 31 at 12.) Since the Court is unaware of any cause of action for “condoning” negligent
or discriminatory conduct, it construes Count 4 as raising failure-to-train and failure-to-supervise
claims. Mr. Parsons asserts these claims against Defendants Johnston and Lundquist in both their
individual and official capacities (see id.).
The Court addresses the individual-capacity claims first. To plead a failure-to-train or
failure-to-supervise claim under section 1983, a plaintiff must allege that
(1) the supervisor was on notice of a pattern of unconstitutional acts
committed by subordinates; (2) the supervisor was deliberately
indifferent to or tacitly authorized the pattern of unconstitutional
acts; (3) the supervisor failed to take sufficient remedial action to
address the pattern of unconstitutional acts; and (4) the
supervisor’s failure to remedy the pattern of unconstitutional acts
proximately caused the plaintiff’s injury.
Johnson v. Ramsey Cnty. ADC, No. 22-CV-0494 (ECT/JFD), 2023 WL 119451, at *4 (D. Minn.
Jan. 6, 2023) (quoting Cole v. Does, 571 F. Supp. 3d 1033, 1044 (D. Minn. 2021)); see also, e.g.,
Sturgeon v. Faughn, 36 F.4th 804, 809 (8th Cir. 2022) (quoting Livers v. Schenck, 700 F.3d 340,
355 (8th Cir. 2012)).
The Court concludes Mr. Parson fails to state individual-capacity claims for failure to train
or supervise because he does not allege Defendants Johnston or Lundquist were on notice of any
ongoing pattern of misconduct such as the conduct he ascribes to Defendant Barney. He further
8

Count 4 also asserts claims under 42 U.S.C. § 1988, which fail for the reasons previously
stated: The statute does not establish an independent cause of action. Mr. Parson’s Count 4
section 1983 claim under the Eighth Amendment should be dismissed as duplicative of Count 1.

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fails to identify any remedial action they should have taken but failed to take. He merely asserts,
in conclusory fashion, that Defendants Johnston and Lundquist “acted with conscious disregard”
for his injuries and “failed to train and supervise Dr. Barney.” (ECF No. 31 at 12-13.) The Court
need not credit such conclusory assertions in assessing the viability of these claims. See, e.g.,
Iqbal, 556 U.S. at 678–79 (citing Twombly, 550 U.S. at 555); Delker v. MasterCard Int'l, Inc., 21
F.4th 1019, 1024 (8th Cir. 2022). In light of these failures, the Court recommends dismissing
Count 4 to the extent it purports to bring claims against Defendants Johnston and Lundquist in
their individual capacities.
This leaves the question of whether Count 4 properly pleads claims against Defendants
Johnston and Lundquist in their official capacities. Under the doctrine of Ex parte Young, Mr.
Parson can bring official-capacity claims against Defendants Johnston and Lundquist for
prospective injunctive relief only. See, e.g., Reed v. Goertz, 143 S. Ct. 955, 960 (2023); Johnson
v. Griffin, 69 F.4th 506, 512 (8th Cir. 2023). The 3AC asserts a nominal claim for injunctive relief
(see ECF No. 31 at 17, demanding “other legal, injunctive or equitable relief”), but it does not
identify what equitable relief, if any, Mr. Parson might be seeking. A claim for injunctive or
declaratory relief must be sufficiently precise to put the court and the defendants on notice of what
the plaintiff is asking the court to do. Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (“Since an
injunctive order prohibits conduct under threat of judicial punishment, basic fairness requires that
those enjoined receive explicit notice of precisely what conduct is outlawed.”) Mr. Parson’s claim
for injunctive relief is insufficiently precise to move forward.
Furthermore, to state an official-capacity claim under section 1983, “a plaintiff must show
either that the official named in the suit took an action pursuant to an unconstitutional
governmental policy or custom, or that he or she possessed final authority over the subject matter

19

at issue and used that authority in an unconstitutional manner.” Nix v. Norman, 879 F.2d 429, 433
(8th Cir. 1989); see also, e.g., Washington v. Craane, No. 18-CV-1464 (DWF/TNL), 2019 WL
2147062, at *4 (D. Minn. Apr. 18, 2019) (quoting Nix), report and recommendation adopted, 2019
WL 2142499 (D. Minn. May 16, 2019). Count 4 fails to assert any action Defendants Lundquist
and Johnston allegedly took according to any particular policy or custom, or to identify any way
in which they may have used their authority in an unconstitutional manner. (See ECF No. 31
at 12– 13.) The Court accordingly recommends dismissal of Count 4 in its entirety.
CONCLUSION
The Court recommends dismissing Counts 2-5 of the 3AC under 28 U.S.C. 1915(e)(2) in
their entirety and further recommends dismissing the official-capacity claims against all
Defendants. Part of Count 1 against Defendant Barney in her individual capacity remains,
however. The Court therefore orders service on Defendant Barney.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.

Mr. Parson must submit a properly completed Marshal Service Form (Form
USM-285) for Defendant Sharyn L. Barney. If Mr. Parson does not
complete and return the Marshal Service Forms within 30 days of the date
of this Order and Report and Recommendation, the Court may recommend
that this matter be dismissed without prejudice for failure to prosecute. The
Court will provide Mr. Parson with the Marshal Service Forms.

2.

Upon return of the completed Marshal Service Forms, the Court directs the
Clerk of Court to seek waivers of service from Defendant Barney—in her
individual capacity—consistent with Rule 4(d) of the Federal Rules of Civil
Procedure.

3.

If Defendant Barney fails without good cause to sign and return a waiver
within 30 days of the date that the waiver is mailed, the Court will impose
upon her the expenses later incurred in effecting service of process. Absent
a showing of good cause, reimbursement of the costs of service is

20

mandatory and will be imposed in all cases in which a defendant does not
sign and return a waiver of service form. See Fed. R. Civ. P. 4(d)(2).
RECOMMENDATION
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS
HEREBY RECOMMENDED THAT:
1.

Count 1 of Plaintiff Raymond A. Parson, Jr.’s Third Amended Complaint
be allowed to proceed at this time, to the extent it asserts claims against
Defendant Barney in her individual capacity under 42 U.S.C. § 1983 arising
under the Eighth Amendment; and

2.

All Counts in the Third Amended Complaint be DISMISSED WITH
PREJUDICE (on grounds of frivolousness) to the extent they bring direct
claims under the United States or Minnesota Constitutions, 42 U.S.C. §
1988 or 42 U.S.C. § 2000dd, or are duplicative of the claims asserted in
Count 1.

3.

The remainder of the Third Amended Complaint be DISMISSED
WITHOUT PREJUDICE.

Dated: August 24, 2023

s/ Dulce J. Foster
DULCE J. FOSTER
United States Magistrate Judge
NOTICE

Filing Objections: This Report and Recommendation is not an order or judgment of the District
Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a magistrate
judge’s proposed 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).

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