Evenstad v. Herberg et al
Filing
35
ORDER granting in part and denying in part 29 Motion to Dismiss. (Written Opinion). Signed by Judge Richard H. Kyle on 01/10/14. (KLL)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Thomas Evenstad,
Plaintiff,
Civ. No. 12-3179 (RHK/JJG)
MEMORANDUM OPINION
AND ORDER
v.
Bryan Herberg, Lyle Johnson, Ryan Chukuske,
Stacy Michels, Shad Coyour,
Robin Oulette, Nancy Johnston,
Gary Grimm, and Lucinda Jesson,
Defendants.
Peter J. Nickitas, Peter J. Nickitas Law Office, LLC, Minneapolis, Minnesota, for
Plaintiff.
Ricardo Figueroa, Uzodima Franklin Aba-Onu, Minnesota Attorney General’s Office, St.
Paul, Minnesota, for Defendants.
INTRODUCTION
In 2006, Plaintiff Thomas Evenstad was placed in the Minnesota Sex Offender
Program (“MSOP”) in St. Peter, Minnesota, pending civil commitment proceedings
against him. In this action, he alleges that numerous state officials and MSOP employees
violated his constitutional and statutory rights while he was in the MSOP by physically
assaulting him, seizing his personal effects, denying him medical treatment, and placing
him in solitary confinement in retaliation for complaining to the Commissioner of Human
Services and MSOP staff about his mistreatment. He asserts seventeen claims against
nine Defendants. Defendants now move to dismiss thirteen of his claims; for the reasons
set forth below, their Motion will be granted in part and denied in part.
BACKGROUND
Evenstad alleges the following facts in his Amended Complaint:
In 1999, Evenstad was convicted of first degree criminal sexual conduct. He
served a prison sentence for that conviction from March 1999 through June 2006. On
June 8, 2006, he was transferred to the Hennepin County Workhouse for seven days and
was then transferred to the MSOP on “judicial hold,” pending civil commitment. At no
time relevant to the instant action was Evenstad civilly committed to the MSOP, or a
“patient,” or “person in treatment” as those terms are defined with regard to the MSOP by
Minnesota Statutes and Rules.
Evenstad was dissatisfied with the conditions of his confinement in the MSOP
and complained many times over the course of his stay to MSOP staff, the Director of the
MSOP, and the Commissioner of the Department of Human Services, which Department
runs the MSOP. On November 2, 2006, he wrote a letter to the Director of the MSOP
requesting a transfer in housing and provided copies of the letter to Defendants Bryan
Herberg, Lyle Johnson, and Ryan Chukuske, all of whom were MSOP staff members.
(Am. Compl. ¶ 84.)
On December 21, 2006, after Evenstad had been at the MSOP for approximately
six months and suffered what he believed to be various violations of the law and of the
MSOP’s own policies, he wrote a letter to the then Commissioner of the Department of
Human Services, Cal Ludeman, stating “he was in fear on account of threats made to
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him” by the MSOP’s Unit Director, Defendant Johnson. (Am. Compl. ¶ 102.) He
prepared this letter on a patient request form and submitted it to “the Team,” 1 which
made copies to forward to the Commissioner and others. Evenstad “observed the Team
staff members pass his letter . . . around to each of them” and he observed Johnson sign
off on it. (Id. ¶¶ 104–05.)
On December 25, Johnson informed Evenstad that they would “be ramping things
up” in relation to Evenstad’s treatment, which Evenstad interpreted as a threat. (Id.
¶¶ 109, 111.) On December 27, around 9:00 a.m., Defendants Shad Coyour and Stacy
Michels, Security Counselors, and Defendant Herberg, the Security Counselor Lead,
awakened Evenstad and told him to get dressed and come out of his cell. After he did as
they instructed, they informed him his cell was being randomly searched and he would
have to submit to a pat-down. (Id. ¶¶ 112–15.) Evenstad alleges that during the “patdown,” Coyour “place[ed] his hands on the inside of Evenstad’s pants and reach[ed]
down until he felt Evenstad’s penis and squeezed [] Evenstad’s testicles violently,”
causing Evenstad to scream out and double over in pain. (Id. ¶¶ 118–19.) When
Evenstad objected to Coyour continuing, the three Defendants threatened to put him in
isolation. (Id. ¶¶ 119–20.) Coyour then patted down the outside of Evenstad’s legs,
“placed his hands on the inside of Evenstad’s legs around his ankles, and then violently
forced his hands up [] Evenstad’s legs until they smashed him in his testicles.” (Id.
¶ 122.) Once again, Evenstad cried out in pain and they then threatened to put him in
1
Evenstad does not specify who or what composes this “Team”; the Court assumes it to be a
segment of the MSOP’s staff.
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isolation; he complained of pain and requested medical treatment, which was denied. (Id.
¶¶ 124–28.) Evenstad alleges they were laughing throughout the assault. (Id. ¶¶ 121,
126.)
During their search of his cell, Coyour, Michels, and Herberg removed two tengallon tote boxes full of his papers and personal effects, including legal materials such as
his communications with his civil-commitment attorneys. (Id. ¶¶ 111, 127, 135.) He
alleges the three spent the next five hours reading and reviewing his legal materials and
when he complained, they threatened him with isolation again and closed his cell door so
he could not see them. (Id. ¶¶ 127–30.) He alleges the staff spent the next ten to fifteen
hours reading and reviewing all of his legal materials. (Id. ¶ 131.) MSOP ultimately
returned one of the boxes to him in late February, but the second was never returned. (Id.
¶¶ 132–33.)
When the “med window” opened that morning shortly after Coyour’s assault on
him, Evenstad informed the nurse on duty, Defendant Robin Oulette, that he had been
injured by staff and was in extreme pain. (Id. ¶ 139.) Oulette told him MSOP staff does
not assault patients and she did not believe him, and she did not examine him. (Id.
¶¶ 140–43.) He told Oulette that he wished to make a formal complaint of abuse but she
refused and stated she did not take reports of abuse, so he asked her to document that he
was assaulted and his testicles were injured. (Id. ¶¶ 143–45.)
Evenstad alleges that shortly after this incident, MSOP began to put him in
Protective Isolation (“PI”), which is analogous to solitary confinement. The MSOP
represented that he was put in PI as punishment for not following behavioral guidelines—
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Evenstad was on Designated Area Restriction (“DAR”) status at the time, and his PI was
allegedly a punishment for not following those DAR guidelines, but Evenstad alleges
such punishment violated MSOP policy. (Id. ¶¶ 82–90, 153–57.) Evenstad was placed
in PI at least four times between January 2, 2007, and March 5, 2007. (Id. ¶ 158.) Each
time, the punishment was upheld by the “PI Review Panel” comprising three MSOP
officials, including Defendant and Program Director Gary Grimm. (Id. ¶¶ 163–68.)
Evenstad also alleges on at least one occasion he was put in PI because of false
statements regarding his behavior made by Defendant Ryan Chukuske, a Security
Counselor and Behavioral Analyst, in retaliation for his letter to Ludeman. (Id. ¶ 227.)
In January and February, the Department of Human Services and the Office of
Special Investigations sent investigators to the MSOP in St. Peter, who spoke with
Evenstad about his complaints. On March 7, one investigator issued a report finding
numerous violations of the Minnesota Rules by Grimm and by the Site Director,
Defendant Nancy Johnston.
On March 6, 2007, Evenstad was remanded to the Minnesota Department of
Corrections and on August 18, 2008, he was released. In December 2012, he filed the
instant action, asserting seventeen claims against the nine Defendants, and later amended
his Complaint. Defendants now move to dismiss thirteen of his claims (Counts I–IV, VIVII, IX–X, 2 XII–XIII, and XVI–XVII). The Motion has been fully briefed and is ripe for
disposition.
2
Evenstad’s Amended Complaint contains two Counts numbered “X” and no count numbered
“XI.” Defendants move to dismiss both Counts numbered “X.”
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STANDARD OF DECISION
The Supreme Court set forth the standard for evaluating a motion to dismiss in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S.
662 (2009). To avoid dismissal, a complaint must include “enough facts to state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 547. A “formulaic recitation
of the elements of a cause of action” will not suffice. Id. at 555. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556).
When reviewing a motion to dismiss, the Court “must accept [the] plaintiff’s
specific factual allegations as true but [need] not . . . accept a plaintiff’s legal
conclusions.” Brown v. Medtronic, Inc., 628 F.3d 451, 459 (8th Cir. 2010) (citing
Twombly, 550 U.S. at 556). The complaint must be construed liberally, and any
allegations or reasonable inferences arising therefrom must be interpreted in the light
most favorable to the plaintiff. Twombly, 550 U.S. at 554–56. A complaint should not
be dismissed simply because the Court is doubtful that the plaintiff will be able to prove
all of the necessary factual allegations. Id. at 556. Accordingly, a well-pleaded
complaint will survive a motion to dismiss even if recovery appears remote. Id. “Finally,
the complaint should be read as a whole, not parsed piece by piece to determine whether
each allegation, in isolation, is plausible.” Braden v. Wal-Mart Stores, Inc., 588 F.3d
585, 594 (8th Cir. 2009).
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ANALYSIS 3
I.
First Amendment Retaliation
Evenstad alleges numerous retaliation claims against numerous Defendants. To
establish a retaliation claim, a plaintiff must show: (1) he engaged in a protected activity;
(2) a government official took adverse action against him that would chill a person of
ordinary firmness from continuing in the activity; and (3) the adverse action was
motivated at least in part by the protected activity. Revels v. Vincenz, 382 F.3d 870, 876
(8th Cir. 2004). Failure to satisfy any of the three elements results in the failure of the
claim. Higdon v. Jackson, 393 F.3d 1211, 1219 (8th Cir. 2004).
As to the first element, Evenstad alleges he exercised his rights to free speech and
peaceful petition for redress of his grievances, both protected activities, on several
occasions. He alleges he wrote to the former MSOP Director requesting a transfer of
housing accommodations in November 2006; he wrote to Commissioner Ludeman about
threats from Johnson, an MSOP staff member, in December; several days later, he
reported his abuse by Herberg, Coyour, and Michels to Nurse Oulette, all of whom were
MSOP staff members; in January and February, he spoke to government investigators
about the MSOP’s use of PI and the staff’s alleged December assault; and, throughout his
stay, he collected statements of others who suffered or witnessed abuse at the MSOP and
3
As an initial matter, Defendants assert that any of Evenstad’s claims stemming from
events that took place before December 21, 2006, are time-barred. See, e.g., Helleloid v.
Ind. Sch. Dist. No. 361, 149 F. Supp. 2d 863, 867 (D. Minn. 2001) (Erickson, M.J.) (sixyear statute of limitations applies to § 1983 claims in Minnesota). As each of his claims
stems from Defendants’ conduct on or after December 21, 2006, this argument is
inconsequential.
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spoke to his attorneys about his abuse. The First Amendment protects “a significant
amount of verbal criticism and challenge” directed at the government and its officials.
City of Houston v. Hill, 482 U.S. 451, 461 (1987). “While an individual’s critical
comments may be provocative and challenging, they are nevertheless protected against
censorship or punishment, unless shown to produce a clear and present danger of a
serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”
Ford v. City of Yakima, 706 F.3d 1188, 1192–93 (9th Cir. 2013) (quotations omitted);
see also Naucke v. City of Park Hills, 284 F.3d 923, 927–28 (8th Cir. 2002) (“[C]riticism
of government officials lies at the very core of speech protected by the First
Amendment.”). As civilly committed persons retain their First Amendment rights to
exercise the freedom of speech and to seek redress of grievances, Revels, 382 F.3d at
876, each of these communications constitutes a protected activity.
As to the second element, Evenstad alleges that various Defendants took adverse
actions against him in retaliation for these protected activities. In order to be actionable,
a defendant’s conduct need not be egregious; petty harassment and ridicule, for example,
may suffice. Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982). “[S]ince there is no
justification for harassing people for exercising their constitutional rights [the chilling
effect] need not be great in order to be actionable.” Id. Yet, there are some injuries so de
minimis that they do not rise to the level of constitutional violation. “It would trivialize
the First Amendment to hold that harassment for exercising the right of free speech was
always actionable no matter how unlikely to deter a person of ordinary firmness from that
exercise.” Id.
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As most of the adverse actions Evenstad alleges involved retaliatory conduct that
caused him some injury or deprivation, they are actionable. These include Coyour,
Herberg, and Michels confiscating his papers and personal effects; Oulette refusing to
provide medical treatment; Chukuske fabricating infractions to justify putting him in PI;
and Johnston and Grimm putting him in PI for alleged infractions for which PI is not an
authorized punishment. The exception, however, is Johnson’s statement, “We’ll be
ramping things up.” Verbal threats of retaliation may constitute “adverse actions,” such
as prison official threatening to “screw” an inmate (in more profane terms), Thaddeus-X
v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999), kill an inmate, Santiago v. Blair, 707 F.3d
984, 992 (8th Cir. 2013) (“In the circumstances before us, we conclude that a reasonable
jury could find that threats of death, issued by a correctional officer tasked with guarding
a prisoner’s segregated cell, would chill a person of ordinary firmness.”), or poison an
inmate, Ford v. Palmer, No. 12-4212, 2013 WL 5340395, at *2 (2d Cir. Sept. 24, 2013).
But Johnson’s alleged statement is too vague to be actionable. Without a more specific
reference to Evenstad or what he might have coming, without a history of abuse or a
pattern of threats, and unaccompanied by any menacing gesture, Johnson’s statement
simply is not sufficiently threatening to chill a person of ordinary firmness from
continuing a protected activity.
As to the third and final element—motivation—Evenstad has alleged that each of
Defendants knew of at least one of his protected activities and their adverse actions were
in retaliation for those activities. Defendants challenge his allegations of retaliatory
motive, contending he has not “demonstrate[d] a causal connection.” But he is not
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required to “demonstrate” anything at this early stage and he may allege Defendants’
motivation generally. See Fed. R. Civ. P. 9(b) (knowledge and other “conditions of a
person’s mind” may be alleged generally). Defendants’ legal authority is inapposite, as
each disposed of a retaliation claim at summary judgment. E.g., Wilson v. Northcutt, 441
F.3d 586, 592–93 (8th Cir. 2006); Johnson v. Esry, No. 98-2573, 2000 WL 375269, at *1
(8th Cir. Apr. 13, 2000); Parks v. Dooley, Civ. No. 09-3514, 2011 WL 847011, at *26
(D. Minn. 2011) (Report & Recommendation of Mayeron, M.J.).
In conclusion, Evenstad has stated First Amendment retaliation claims against
Coyour, Herberg, and Michels (Count VII), Chukuske (Count X), Oulette (Count X), and
Johnston and Grimm (Count XIII), but not against Johnson (Counts I & II).
II.
Conspiracy
Evenstad alleges that Coyour, Herberg, Michels, and Johnson conspired to
retaliate against him for his complaint to Commissioner Ludeman. To establish a claim
for conspiracy under 42 U.S.C. § 1985, a plaintiff must demonstrate a conspiracy for the
purpose of depriving another of the equal protection of the laws 4 and an act in furtherance
of that conspiracy, causing injury to a person or property or the deprivation of a legal
right. Federer v. Gephardt, 363 F.3d 754, 757–58 (8th Cir. 2004). “‘The language
requiring intent to deprive [another] of equal protection, or equal privileges and
immunities, means that there must be some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’ action.’” Id. at 758 n.3
4
Section 1985 provides a remedy for conspiracies with other purposes, as well, but the Court
does not list them as they are not relevant here.
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(quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)) (alteration added). As
Evenstad does not allege invidious discrimination or any deprivation of the equal
protection of the laws, or equal privileges and immunities, he fails to state a claim for
conspiracy under § 1985 (Count XVII).
III.
Unreasonable Search and Seizure
Evenstad asserts two claims for unreasonable search and seizure against Coyour,
Herberg, and Michels, which they move to dismiss.
First, Evenstad alleges they unreasonably seized him when they removed him
from his cell on December 27, 2006, during their search. Involuntarily committed civil
detainees have a Fourth Amendment right to be free from unreasonable searches and
seizures similar to that of pretrial detainees. Serna v. Goodno, 567 F.3d 944, 948 (8th
Cir. 2009). 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.
Bell v. Wolfish, 441 U.S. 520, 557–58 (1979). The Supreme Court held in Wolfish that
room searches are an “appropriate security measure” in correctional facilities and that it
is not unreasonable to require pretrial detainees to remain outside their rooms during such
searches. Id. at 557. Given that the Eighth Circuit has applied the same constitutional
standard for pretrial detainees to civilly committed individuals, the Court concludes that
Wolfish sets the appropriate standard for Evenstad’s claim. 5 Like the pretrial detainees,
5
Although Evenstad was on judicial hold at the MSOP and not civilly committed, the parties
agree that the constitutional standard for civilly committed individuals applies to his claims.
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he had a reduced expectation of privacy, and like any other correctional facility, the
MSOP has an important interest in maintaining security and doing so efficiently.
Defendants did not act unreasonably by requiring Evenstad to wait outside his room
while they searched it and his claim (Count III) will therefore be dismissed.
Second, Evenstad asserts that Coyour, Herberg, and Michels used excessive force
while conducting the “pat-down.” These three Defendants assert they are entitled to
qualified immunity from this claim because the alleged pat-down caused Evenstad only
de minimis injury. A government actor is entitled to qualified immunity if his conduct
did not violate “clearly established” law at the time. 6 Defendants argue that the infliction
of de minimis injury did not violate clearly established law in 2006. At that time, it was
clearly established that an arrestee had a right to be free from the use of excessive force
but it was not clearly established that an officer violated an arrestee’s rights by applying
force that caused only de minimis injury. Chambers v. Pennycook, 641 F.3d 898, 908
(8th Cir. 2011). As late as 2011, it was still an “open question in this circuit whether an
excessive force claim requires some minimum level of injury.” Id. at 904 (quoting
Copeland v. Locke, 613 F.3d 875, 881 (8th Cir. 2010)). Chambers resolved the issue,
clarifying that even a de minimis injury can support an excessive-force claim. But in
2006, a reasonable police officer “could have believed that as long as he did not cause
6
Defendants raise qualified immunity as a defense to all of Evenstad’s claims, but as the laws
relevant to his other surviving claims were clearly established in 2006 (e.g., the right to be free
from retaliation for the exercise of First Amendment rights), the Court entertains this defense as
to his excessive-force claim only.
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more than de minimis injury to an arrestee, his actions would not run afoul of the Fourth
Amendment.” Id.
Although Chambers addresses the rights of arrestees, it stands to reason that
Chambers applies equally to civilly committed individuals, as their excessive-force
claims are subject to the same Fourth Amendment “objective reasonableness” standard as
arrestees’ claims. Beaulieu v. Ludeman, 690 F.3d 1017, 1033 (8th Cir. 2012) (applying
Chambers to civilly committed individuals in the MSOP); Andrews v. Neer, 253 F.3d
1052, 1060–61 & n.7 (8th Cir. 2001) (excessive-force claim of involuntarily committed
state hospital patient analyzed under the same “objective reasonableness” standard as a
pretrial detainee or an arrestee). Thus, Defendants are entitled to qualified immunity if
their alleged conduct inflicted only de minimis injury. That being said, it is not clear
from the face of the pleadings whether Evenstad’s injuries were de minimis because he
pleads them only generally. See Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th Cir.
1997) (“We have held that qualified immunity is an affirmative defense, which will be
upheld on a 12(b)(6) motion only when the immunity is established on the face of the
complaint.”) (quotations omitted). 7 Accordingly, the Court may not determine
Defendants’ qualified immunity at this early juncture.
7
Notably, the cases Defendants cite in support of their argument dispose of excessive-force
claims on summary judgment, not on a Rule 12 motion. See, e.g., Johnson v. Hamilton, 452 F.3d
967, 972 (8th Cir. 2006); Rohrbough v. Hall, No. 4:07CV00996, 2008 WL 4722742 (E.D. Mo.
Oct. 23, 2008); Garcia v. Hook, Civ. No. 04-5310, 2006 WL 1999161 (W.D. Ark. Jul. 17, 2006).
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IV.
Access to Counsel
Evenstad alleges that Coyour, Herberg, and Michels violated his “right of access
to counsel” under the Sixth and Fourteenth Amendments 8 when they confiscated his legal
papers and effects from his room. (Am. Compl. ¶ 208.) The Sixth Amendment only
provides a right to counsel in “criminal prosecutions.” U.S. Const. Amend. VI. As
Evenstad was not the subject of a criminal prosecution at the time, he fails to state a claim
under the Sixth Amendment. His protections under the Fourteenth Amendment,
however, may be broader. But even construing his claim as a denial of the right to access
the courts, which includes within it a right to access legal papers, see Bounds v. Smith,
430 U.S. 817, 824–25 (1977), the claim is not actionable.
In order to have a cause of action based on the denial of access to legal papers, a
plaintiff must show a “non-frivolous” legal claim was frustrated as a result. Lewis v.
Casey, 518 U.S. 343, 351–53 (1996); see also Beaulieu, 690 F. 3d at 1037 (“Absent an
articulation of how the alleged wrongful conduct [of opening the MSOP patients’ legal
mail] actually blocked the Patients’ access to filing a complaint, or cause a filed
complaint to be deficient, the Patients’ alleged injuries are merely speculative.”)
(quotation omitted). Although Evenstad alludes to civil commitment proceedings
pending against him, his does not allege that he was civilly committed, much less as a
8
In his Memorandum, Evenstad asks the Court to consider this claim as a claim under the First
Amendment as well (Pl.’s Mem. at 20 n.25); the Court declines to do so, as a party cannot amend
his pleadings through memoranda, see, e.g., Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d
992, 995 (8th Cir.1989) (“[I]t is axiomatic that a complaint may not be amended by the briefs in
opposition to a motion to dismiss. To hold otherwise would mean that a party could unilaterally
amend a complaint at will, even without filing an amendment, . . . simply by raising a point in a
brief.”) (internal citations omitted).
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result of being denied access to his legal papers. Accordingly, his claim (Count VI) will
be dismissed.
V.
Procedural Due Process
Evenstad alleges Johnston and Grimm deprived him of his liberty by placing him
in PI “without lawful authority or factual basis, in violation of existing Minnesota Rules
and Minnesota Statutes, and in violation of [his] clearly established rights under the
Fourteenth Amendment.” (Am. Compl. ¶ 235.) Interests protected by the Fourteenth
Amendment stem from two sources: the Amendment’s Due Process clause itself or state
law. Here, though somewhat difficult to discern from his Amended Complaint or
Memorandum, Evenstad appears to contend that Defendants violated a protected statelaw interest. (See Pl.’s Mem. at 25–26 (quoting the standard for state-created liberty
interests).)
While state law may create a liberty interest protected by the Fourteenth
Amendment, “it is clear that not every transgression of state law may do double duty as a
constitutional violation.” Whisman, 199 F.3d at 1312. “Only in very limited and obvious
circumstances will federal constitutional significance attach in these matters.” Id. In
order to create a protected interest, the law must contain “explicitly mandatory language,
i.e., specific directives to the decisionmaker that if the [law’s] substantive predicates are
present, a particular outcome must follow.” Ky. Dept. of Corr. v. Thompson, 490 U.S.
454, 463 (1989) (quotation omitted). As Evenstad has not articulated which statute or
regulation he contends created a protected liberty interest, either in his Amended
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Complaint or his Memorandum, the Court cannot conclude he has sufficiently alleged the
violation of a protected interest and this claim (Count XII) will be dismissed.
Evenstad also alleges a procedural-due-process claim against Commissioners
Jesson and Grimm for treating him as if he were a “patient” or “person in treatment” at
the MSOP when he was there on judicial hold, in violation of Minnesota law. He seeks
only declarative and injunctive relief through this claim and, as he no longer resides at the
MSOP, Defendants move to dismiss the claim as moot. “[A]n inmate’s claims for
declaratory and injunctive relief to improve prison conditions [a]re moot when he . . . [is]
no longer subject to those conditions” and is not likely to be subjected to them again.
Smith v. Hundley, 190 F.3d 852, 855 (8th Cir. 1999); see also Senty-Haugen v. Goodno,
462 F.3d 876, 889 (8th Cir. 2006). Although Evenstad was not an inmate, the same
principle applies. His claim for declaratory and injunctive relief regarding the treatment
of persons on judicial hold at the MSOP is moot if he is no longer subject to the
challenged treatment and is not likely to be subjected to it again. It is undisputed
Evenstad is no longer at the MSOP—his Amended Complaint states he was released in
2008—and he does not allege he is likely to return. (Am. Compl. ¶ 185.) Thus, his claim
for equitable relief (Count IX) is moot and will be dismissed.
VI.
Minnesota Government Data Practices Act
Evenstad asserts a claim under the MGDPA against “the Commissioner,” who the
Court interprets as the current Commissioner of the Department of Human Services,
Defendant Jesson. (Am. Compl. ¶ 257.) The MGDPA regulates the state’s creation,
collection, storage, maintenance, and dissemination of data and the public’s access to it,
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including sensitive personal information. See Minn. Stat. §§ 13.01–13.99. Evenstad
alleges Coyour, Herberg, and Michels “collected private data on [him], stored private
data, and deprived [him] of access to these data . . . without lawful authority under the
[MGDPA]” and that Jesson, as the Commissioner, was responsible for assuring their
compliance and failed to do so. (Am. Compl. ¶¶ 253, 255.)
Claims under the MGDPA cannot be brought against individuals, Minn. Stat.
§ 13.08, subd. 1, so the Court construes Evenstad’s claim as a claim against Jesson in her
official capacity. But Jesson argues Evenstad cannot bring an MGDPA claim against her
in her official capacity either. She asserts the State of Minnesota is immune from suit
under the MGDPA in federal court and, as a suit against a state employee in her official
capacity is treated as a suit against the State itself, Cooper v. St. Cloud State Univ., 226
F.3d 964, 968–69 (8th Cir. 2000), she shares the State’s Eleventh Amendment immunity.
“[T]he Eleventh Amendment has been interpreted to extend to suits by all persons
against a state in federal court. A state, however, may consent to suit in federal court.”
Santee Sioux Tribe of Neb. v. State of Neb., 121 F.3d 427, 430 (8th Cir. 1997) (quotation
and citation omitted). “The test for whether a state has waived its immunity . . . is a
stringent one. A state is deemed to have waived its immunity only where stated by the
most express language or by such overwhelming implication from the text as will leave
no room for any other reasonable construction.” Id. (citation omitted). The waiver must
be “clear and unequivocal.” Id. at 431.
Evenstad argues Minnesota waived its immunity, citing the “Civil Remedies”
section of the MGDPA, which states: “The state is deemed to have waived any immunity
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to a cause of action brought under this chapter.” Minn. Stat. § 13.08, subd. 1. While this
waiver of “any” immunity would logically seem to include Eleventh Amendment
immunity, it is not quite so clear-cut. In another chapter of the Minnesota Statutes, the
State waives its Eleventh Amendment immunity by stating that a person “may bring a
civil action against the state in federal court.” § 1.05, subd. 1; see also subds. 2–5 (stating
the same). In contrast to this explicit waiver, which contemplates suit “in federal court,”
the language of the MGDPA does not express a clear and unequivocal intent to waive
Eleventh Amendment immunity specifically. “A state’s general waiver of sovereign
immunity is insufficient to waive Eleventh Amendment immunity, because to waive
Eleventh Amendment immunity, the state must specify an intent to subject itself to
federal court jurisdiction.” Santee, 121 F.3d at 431 (emphasis added). Because the State
of Minnesota has not specified an intent to subject itself to suit in federal court under the
MGDPA, Evenstad’s claim (Count XVI) must be dismissed. See also Shakopee
Mdewakanton Sioux (Dakota) Comm’ty v. Hatch, Civ. No. 011737, 2002 WL 1364113,
at *7–8 (D. Minn. June 20, 2002) (Montgomery, J.) (Eleventh Amendment precludes suit
against Minnesota state official in federal court).
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Defendants’ Motion to Dismiss (Doc. No. 29) is GRANTED IN PART
and DENIED IN PART as follows:
(1)
The Motion is GRANTED as to Counts I & II (against Johnson only) and
Counts III, VI, IX, XII, XVI, and XVII of the Amended Complaint (Doc. No. 22);
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(2)
Counts I & II (against Johnson), VI, IX, XII, and XVII are DISMISSED
WITHOUT PREJUDICE; and
(3)
Counts III and XVI are DISMISSED WITH PREJUDICE.
(2)
The Motion is DENIED as to all other Counts.
This leaves Counts I and II (against Coyour, Herberg, and Michels), IV, V, VII,
VIII, X (both), XIII, XIV, and XV pending.
Dated: January 10, 2014
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
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