Favors v. Hoover et al
Filing
220
MEMORANDUM OPINION AND ORDER granting State Defendants' 88 Motion to Dismiss plaintiff's federal claims; granting Dennis Benson's 132 Motion to Dismiss plaintiff's federal claims; granting Defendants Christopher Boreland and Mark Mehl's 139 Motion to Dismiss plaintiff's federal claims; denying plaintiff's 143 Motion for Default Judgment; granting defendant Michelle Hoover's 195 Motion to Dismiss plaintiff's federal claims; Adopt Report and Recommendation 207 Report and Recommendation; Adopt Report and Recommendation 208 Report and Recommendation. The Court declines to exercise supplemental jurisdiction over the remaining state law claims against Michelle Hoover, the State Defendants, the County of Dakota (Boreland and Mehl), and Dennis Benson.(Written Opinion). Signed by Judge John R. Tunheim on September 30, 2014. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JOSEPH ANTHONY FAVORS,
Civil No. 13-428 (JRT/LIB)
Plaintiff,
v.
MICHELLE HOOVER, LUCINDA
JESSON, DANIEL STORKAMP,
DENNIS BENSON, JEANINE HEBERT,
LORI SWANSON, RALPH SCHMIDT,
MANDY TORGERSON, ROB ROSE,
DIANNA MAGAARD, DEB JAMES,
JULI ROSE, BETH VIRDEN, JOANN
FABIAN, JEFFREY L. PETERSON,
DEBORAH J. SCHADEGG,
CHRISTOPHER BORELAND, MARK
MEHL, JOHN KING, ANN LINKERT
(ZIMMERMAN), JEAN SEYKORA,
THOMAS LUNDQUIST, CHAD
MESOJEDEC, TODD WHITE, (O.D.)
GULLICKSON, TERRY KNIESEL,
JAMIE KOZISCH, TRACY GEBHART,
CRAIG BERG, STEVE YOUNGST, JON
HIBBER, KEVIN SCHLERER, JENA
JONES, RICK O’CONNER, EYVETTE
ANDERSON, OFFICE OF HEALTH
FACILITY COMPLAINTS, DHS
OFFICE OF MALTREATMENT
COMPLAINTS, OFFICE OF
LICENSING FOR THE SECURITY
HOSPITAL, THE STATE OF
MINNESOTA, and REBBECA RANEM,
MEMORANDUM
OPINION AND ORDER
Defendants.
Joseph Anthony Favors, No. 100988, Minnesota Correction Facility Moose Lake, 1111 Highway 73, Moose Lake, MN 55767, pro se.
30
Angela Helseth Kiese, Assistant Attorney General, MINNESOTA
ATTORNEY GENERAL’S OFFICE, 445 Minnesota Street, Suite 1800,
St. Paul, MN 55101, for defendant Michelle Hoover.1
Anthony R. Noss and Ricardo Figueroa, Assistant Attorneys General,
MINNESOTA ATTORNEY GENERAL’S OFFICE, 445 Minnesota
Street, Suite 1100, St. Paul, MN 55101, for “State Defendants” Eyvette
Anderson, Craig Berg, Tracy Gebhart, (O.D.) Gullickson, Jon Hibber, Deb
James, Jena Jones, Terry Kniesel, Jamie Kozisch, Ann Linkert
(Zimmerman), Thomas Lundquist, Dianna Magaard, Chad Mesojedec, Rick
O’Conner, Rebbeca Ranem, Juli Rose, Rob Rose, Kevin Schlerer, Ralph
Schmidt, Lori Swanson, Mandy Torgerson, Beth Virden, Todd White,
Steve Youngst, Jeanine Hebert, Jean Seykora, Daniel Storkamp, Lucinda
Jesson, Office of Licensing for the Security Hospital, DHS Office of
Maltreatment Complaints, and State of Minnesota.
Anthony R. Noss and Ricardo Figueroa, Assistant Attorneys General,
MINNESOTA ATTORNEY GENERAL’S OFFICE, 445 Minnesota
Street, Suite 1100, St. Paul, MN 55101, for defendant Dennis Benson.
Kelly S. Kemp, Assistant Attorney General, MINNESOTA ATTORNEY
GENERAL’S OFFICE, 445 Minnesota Street, Suite 900, St. Paul, MN
55101, for defendants Joann Fabian, Jeffrey L. Peterson, Deborah J.
Schadegg, John King, and Office of Health Facility Complaints.
Jeffrey A. Timmerman, Assistant County Attorney, DAKOTA COUNTY
ATTORNEY’S OFFICE, 1560 Highway 55, Hastings, MN 55033, for
defendants Christopher Boreland and Mark Mehl.
Plaintiff Joseph Anthony Favors is civilly committed at the Minnesota Sex
Offender Treatment Program (“MSOP”) in Moose Lake, Minnesota. On February 21,
2013, Favors filed a complaint under 42 U.S.C. §§ 1981, 1983, 1985, and 1986 alleging
various civil rights violations and naming fifty-six individuals and state agencies as
defendants, sixteen of which were later dismissed. Defendants Hoover, Boreland, Mehl,
1
For the sake of simplicity, the Court uses the same spelling for each defendant’s name
that the Plaintiff uses in his complaint. The same spelling is used in the electronic docket.
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Benson, and the “State Defendants” all filed motions to dismiss Favors’s federal claims
against them. On May 13, 2014, United States Magistrate Judge Leo I. Brisbois issued a
Report and Recommendation (“R&R”) recommending the Court deny Favors’s motion
for default judgment against Boreland and Mehl. On that same date, Judge Brisbois
issued a second Report and Recommendation, recommending the Court grant all four
motions to dismiss without prejudice and decline to exercise supplemental jurisdiction
over the state law claims. Favors objected to the second R&R on various grounds.
Because, even considering his objections and especially in light of Heck v. Humphrey,
512 U.S. 477 (1994), Favors has failed to state a plausible civil rights claim on which
relief may be granted, the Court will adopt both R&Rs, dismiss Favors’s claims against
Hoover, Boreland, Mehl, Benson, and the State Defendants without prejudice, and
decline to exercise supplemental jurisdiction over Favors’s state law claims.
BACKGROUND
I.
CIVIL COMMITMENT AND PAROLE REVOCATION
Favors is currently civilly committed as a “sexually dangerous and . . . sexually
psychopathic person” at MSOP in Moose Lake. (Compl. ¶ 21, Feb. 21, 2013, Docket
No. 1.) In 2008, Favors was serving a prison sentence for a criminal sexual conduct
conviction with the Minnesota Department of Corrections (“DOC”) in Stillwater. Favors
v. Jesson, No. 13-cv-108 (JRT/LIB), 2013 WL 4052668, at *1 (D. Minn. Aug. 9, 2013).
The Dakota County District Court ordered Favors civilly committed in August 2008 and
the Minnesota Court of Appeals affirmed the commitment. In re Civil Commitment of
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Favors, No. A09-2306, 2010 WL 2486349, at *9 (Minn. Ct. App. June 22, 2010); (Order
Partially Dismissing Habeas Pet. & Changing Venue (“Habeas Order”), Ex. 48, at 1032,
Oct. 31, 2013, Docket No. 106-3.) On November 25, 2008, the Minnesota Department of
Corrections imposed on Favors conditional supervised release from his prison sentence,
so that he could be civilly committed at MSOP. (Id.) The release period was initially set
to run through February 22, 2011. (Id.) Favors’s release was predicated on twenty-nine
conditions, including that he would not stalk or harass others. (Id. at 104.)
Favors’s suit against Hoover and some fifty-five other individuals and state
entities primarily arises out of his parole revocation and imprisonment for stalking
Hoover at MSOP. (Compl. ¶ 2.) Favors makes many other allegations, including that he
was subjected to punitive confinement; a counter-therapeutic environment; inadequate
treatment; retaliation; interference with and threats of punishment related to complaints;
retaliatory isolation, discharge from treatment, and imprisonment; a retaliatory criminal
charge; cruel and unusual abuses; loss of personal property and wages, and lack of access
to the courts. (Id. ¶¶ 100-02, 103-95, 196-204, 205-14, 229-66, 267-70, 330, 434-36,
439-43.) He also alleges that MSOP officials, and other related state officials, failed to
properly supervise and train MSOP employees like Hoover. (See, e.g., id. ¶¶ 23, 25-27,
38-41, 43, 47-49, 75-77.)
Favors’s allegations focus on his interactions with Hoover, a MSOP Security
Counselor, during part of his time at the facility. (Id. ¶ 42.) Starting in December 2009,
2
All page numbers refer to the CM/ECF pagination unless otherwise noted.
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Favors began to make allegations that Hoover was having an inappropriate sexual
relationship with a person civilly committed at MSOP, Michael Crow. (Habeas Order,
Ex 48 at 104; Compl. ¶ 112.) Favors alleges that starting on December 8, 2009, in
response to his allegations, Hoover made ten retaliatory and false reports against him.
(Compl. ¶¶ 42, 103-28, 130-33, 150-55, 165-83, 187-95.) Favors claims that in these
reports, Hoover falsely stated that Favors treated other patients, particularly Crow,
poorly, broke MSOP rules, and was stalking and harassing Hoover. (Id.)
At the same time, Favors filed multiple complaints against Hoover with the Office
of Special Investigations (“OSI”) for MSOP, along with other officials, refuting
accusations she made in her reports, and claiming both that she was having an
inappropriate relationship with Crow and that she was filing false reports and retaliating
against Favors because he was reporting her inappropriate behavior. (E.g., Compl. ¶¶ 4445, 111-12, 115, 118, 122, 129, 133, 134-38, 144-49, 153, 156-64, 168.) His complaints
were frequently detailed; his January 8, 2010 complaint, for example, contained multiple
supporting affidavits from other MSOP patients, one of whom took and passed a
polygraph test. (Id. ¶ 129.) He alleges, however, that the officials who received his
complaints did nothing to investigate his allegations, particularly his March 12, 2010
complaint that urged OSI officials to watch security camera footage that Favors claims
refutes Hoover’s stalking allegations. (Id. ¶¶ 175-76.)
In her tenth report on Favors, filed in May 2010, Hoover recommended he be
placed on an Individual Program Plan (“I.P.P.”). (Id. ¶¶ 187-95.) The I.P.P., initiated on
May 26, 2010, restricted his access to recreation and education activities between noon
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and 9:00p.m., when Hoover was working in those areas of the MSOP facility. (Id.;
Individual Program Plan Method, Ex. 35, Oct. 31, 2013, Docket 106-3.) Following the
I.P.P., Defendant Deborah Konieska, who has since been dismissed from this suit,
authored Favors’s Quarterly Treatment Review Report (“QRR”), which was completed
on June 10, 2010. (Quarterly Treatment Review Report, Ex. 40, Oct. 31, 2013, Docket
106-3.) The QRR accused Favors of targeting “several female security counselors and
group facilitators,” submitting requests that female staff members be disciplined when he
disagrees with their feedback, making “false allegations” against Hoover, and
consistently following and observing Hoover and filing new complaints about her,
despite being told to stop. (Id. at 42.)
In response to the I.P.P., and in addition to the other complaints he had filed with
the OSI, Favors filed a complaint with the Hospital Review Board (“HRB”) on
January 23, 2012, alleging that the I.P.P. was retaliatory. (Compl. ¶ 201.) He also
appeared before the HRB in April 2010 and filed a different complaint with the HRB in
June 2010. (Hospital Review Board Compl., Ex. 43(2), Oct. 31, 2013, Docket 106-3.) In
one of his HRB complaints, he challenged the QRR. (Compl. ¶ 217; Formal Compl.,
Ex. 41, Oct. 31, 2013, Docket No. 106-3.)
Favors alleges the QRR was false and
retaliatory. (Compl. ¶¶ 215-28.)
Following his June 2010 complaint, the HRB directed MSOP to respond,
(Findings and Recommendations of the HRB, Ex. 43(1), Oct. 31, 2013, Docket No. 1063), and Dennis Benson, MSOP’s director, responded on July 29, 2010 that Favors needed
to work toward his treatment plan goals and that his allegations regarding staff
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misconduct had been received and investigated, (Resp. to HRB Recommendations,
Ex. 38, Oct. 31, 2013, Docket 106-3; Compl. ¶¶ 205-07). The response also stated that
Favors had been told “to stop reporting false allegations and harassing staff” and that
future such behavior could lead to him receiving “Behavior Expectations Violations.”
(Resp. to HRB Recommendations, Ex. 38, Oct. 31, 2013, Docket 106-3.)
On the same date that the QRR was issued, June 10, 2010, Favors was placed in
isolation in a High Security Area (“HSA”), so that MSOP could conduct a criminal
investigation into claims that Favors was stalking Hoover. (Compl. ¶¶ 229-40.) At that
point, Favors alleges he was discharged from sex offender treatment at MSOP, through
March of 2011. (Id. ¶ 240.) Favors was informed that he had violated the conditions of
his supervised release by engaging in stalking and harassing behaviors. (Habeas Order,
Ex. 48, at 105.)
The Hearings and Release Unit of the Minnesota Department of
Corrections held a parole revocation hearing on August 23, 2010. (Compl. ¶ 253.)
Favors alleges that Hoover testified falsely at the hearing that Favors had stalked her and
that she did not have an inappropriate relationship with Crow. (Id. ¶¶ 253-62.) Favors
alleges that Defendant Dianna Magaard also testified falsely at the hearing. (Id. ¶¶ 21014.)
Following the hearing, the revocation hearing officer, Deborah Schadegg, revoked
Favors’s parole and he was then transferred back to the DOC in Stillwater. (Id. ¶¶ 263,
267; Habeas Order, Ex. 48, at 106.)
The imprisonment term was set to last until
February 11, 2011. (Compl. ¶ 263.) Favors appealed the parole revocation, but Hearings
and Release Unit Executive Officer Jeffrey Peterson affirmed the revocation. (Habeas
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Order, Ex. 48, at 106.) A criminal complaint was initially filed against Favors for
stalking Hoover, which resulted in Favors having to make a trip to the Carlton County
District Court in chains and shackles. (Id. ¶¶ 267-70.) That complaint was dropped in
the “interests of justice.” (Mot. & Order for Dismissal Without Prejudice, Ex. 58,
Oct. 30, 2013, Docket No. 106-3.).
Favors alleges that in October 2010, Crow also faced parole revocation due to
having a weapon in the MSOP facility. (Compl. ¶ 276.) Favors claims that Crow made a
deal to inform Defendant Jungers about his relationship with Hoover, in order to avoid
having his parole revoked. (Id.) Hoover was terminated from MSOP on October 15,
2010 and a criminal complaint was filed against her on May 9, 2011, alleging that she
introduced contraband – marijuana – into the MSOP facility at Moose Lake and engaged
in third-degree criminal sexual conduct.3 (Id. ¶¶ 274, 282-83; see also Habeas Order,
Ex. 48, at 107.)
Favors concludes that the charges against Hoover are the most
compelling proof available of his various claims and show indifference on the part of the
officials he is suing since nobody sought his release after Hoover was terminated.
(Compl. ¶¶ 285-92.)
Upon his release from the Minnesota Correctional Facility in
Stillwater, Favors was transferred back to MSOP at Moose Lake. (Id. ¶¶ 293-95.)
3
The state court dismissed all three charges on November 10, 2011. State v. Hoover,
No. A12-1626, 2013 WL 1859098, at *1 (Minn. Ct. App. May 6, 2013). The state later filed a
new complaint against Hoover, charging her with two counts of introducing contraband into
MSOP. Id. Hoover ultimately pled guilty to introducing alcohol into MSOP, in exchange for
dismissing the marijuana-related contraband charge. Id.
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II.
FAVORS’S HABEAS PETITIONS
Four days before his release from Stillwater, Favors filed a petition for writ of
habeas corpus in Washington County District Court. Favors, 2013 WL 4052668, at *1.
He sought release from his confinement with the DOC in Stillwater and discharge from
his civil commitment with MSOP. Id. Respondents erroneously filed their response with
the wrong court, the Carlton County District Court (the county in which Moose Lake is
located). Id. The Carlton County District Court then dismissed Favors’s constitutional
challenge on the merits. Id. The Washington County court partially dismissed the
petition. It dismissed his request for release from the custody of the DOC in Stillwater
because he was no longer in custody there and had been returned to Moose Lake.
(Habeas Order, Ex. 48, at 108-09.) The remainder of his habeas claims – including his
retaliation claims and the challenge to the revocation of his supervised release – were
transferred to the Carlton County District Court. (Id. at 109.) The Washington County
court stated the following, however:
Petitioner has served his time and is no longer subject to DOC custody, as
Petitioner’s criminal sentence ended on February 11, 2011, and is therefore
no longer subject to supervised or conditional release. He may be entitled
to a change in the record or in credit to be applied to any future sentence or
some such remedy given the total picture of what happened here. At a
minimum he is entitled to have the Respondents and any other staff person
or tribunal member receive a copy of this order so that if they [are] capable
of “lessons learned” about animus, misplaced or premature conclusions, or
other bias they can take the lesson to heart.
It appears that Petitioner may have been engaging in inappropriate
behaviors, but the so-called “unfounded” claims about Respondent Hoover
now have merit to warrant her arrest and current prosecution for
inappropriate behaviors with clients at MSOP – Moose Lake. Hoover’s
reports about Petitioner’s behavior came at the same time, or shortly very
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after, Petitioner was making these accusations against Hoover. Given the
sequence of events leading to revocation of Petitioner’s conditional release,
Petitioner may very well have a cognizable retaliation claim. The
retaliation is now part of Petitioner’s record and could adversely affect any
future proceedings, which means that the revocation could have collateral
consequences for Petitioner in the future.
....
Even though the Court is dismissing Petitioner’s Habeas Petition with
respect to his confinement in Stillwater prison, the Court also notes that
Petitioner is not precluded from pursuing an action under 42 U.S.C. [§]
1983.
(Id. at 108-09.)
The Minnesota Court of Appeals affirmed the Washington County order partially
dismissing the habeas petition and transferring the remainder of the petition to Carlton
County. Favors v. Jungers, Nos. A11-2055, A11-2104, 2012 WL 2079848, at *3-4
(Minn. Ct. App. June 11, 2012). It vacated, however, the prior Carlton County court
order, since that court did not have the authority to dismiss a habeas petition filed in
Washington County. Id. at *3. The Carlton County District Court has yet to rule on
Favors’s habeas petition.4
III.
THIS PROCEEDING
On February 21, 2013, Favors filed his complaint in this case against some fifty-
six individual and institutional defendants. (Compl.) The Court subsequently dismissed
sixteen defendants. (Mem. Opinion & Order, Dec. 12, 2013, Docket No. 167; Order,
4
As of September 26, 2014, the Favors v. Boreland, et al., Carlton County, Dist. Ct. File
No. 09cv-11-2276, was still pending.
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Feb. 4, 2014, Docket No. 202.) In his complaint, as discussed above, Favors alleges that
defendants committed a number of wrongs, including wrongful and retaliatory
imprisonment, retaliation, and inadequate treatment. Favors alleges violations of his
First, Fourth, and Fourteenth Amendment rights under the United States Constitution,
along with his Minnesota constitutional rights. (Compl. ¶¶ 387-91.) He also alleges
violations of various state statutes, rules, and MSOP policies. (Id. ¶¶ 378-86, 392-431.)
He seeks monetary and injunctive relief, costs, and attorneys’ fees. (Id. ¶¶ 432-87.)
Defendants Hoover, Boreland, Mehl, Benson, and the “State Defendants” all filed
motions to dismiss Favors’s federal claims against them.
(Def. Hoover’s Mot. to
Dismiss, Jan. 27, 2014, Docket No. 195; Dakota County’s Mot. to Dismiss, Nov. 15,
2013, Docket No. 139; Def. Benson’s Mot. to Dismiss, Nov. 15, 2013, Docket No. 132;
State Defendants’ Mot. to Dismiss, Oct. 21, 2013, Docket No. 88.) The Office of Health
Facility Complaints and employees of the DOC did not file a motion to dismiss but did
file their own answer. (Answer, Oct. 18, 2013, Docket No. 87.) Favors also filed a
motion for default judgment against Boreland and Mehl. (Mot. for Default J., Nov. 14,
2013, Docket No. 143.)
On May 13, 2014, the Magistrate Judge issued a Report and Recommendation
(“R&R”) recommending the Court deny Favors’s motion for default judgment against
Boreland and Mehl. (R&R (“Default Judgment R&R”), May 13, 2014, Docket No. 207.)
On that same date, the Magistrate Judge issued a second Report and Recommendation,
recommending the Court grant all four motions to dismiss without prejudice and decline
to exercise supplemental jurisdiction over the state law claims. (R&R.) Favors filed
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objections, focusing on the second R&R.5 (Objections to R&R (“Objections”), May 29,
2014, Docket No. 210.)
DISCUSSION
I.
STANDARD OF REVIEW
Upon the filing of a report and recommendation by a magistrate judge, a party
may “serve and file specific written objections to the proposed findings and
recommendations.” Fed. R. Civ. P. 72(b)(2); accord D. Minn. LR 72.2(b)(1). “The
district judge must determine de novo any part of the magistrate judge’s disposition that
has been properly objected to.” Fed. R. Civ. P. 72(b)(3).
II.
GENERAL OBJECTION
Favors first objects, generally, to the Magistrate Judge’s recommendation to
dismiss his claims, arguing that a complaint should be construed liberally in the
plaintiff’s favor. (Objections at 3-4 (quoting Rucci v. City of Pacific, 327 F.3d 651, 652
(8th Cir. 2003)).) While a pro se plaintiff’s complaint should be liberally construed,
Erickson v. Pardus, 551 U.S. 89, 94 (2007), the complaint also must still “allege
sufficient facts to support the claims advanced,” Stone v. Harry, 364 F.3d 912, 914
5
Favors filed his objections on May 29, 2014, two days after the May 27, 2014 deadline.
D. Minn. LR 72.2(b)(1). Favors also states that his objections contain 12,000 words, citing to
Local Rule 7.1. (LR 7.1(c) Word Count Compliance, May 29, 2014, Docket No. 210-1.) But the
applicable word limit is the 3,500 word limit on objections found in Local Rule 72.2(c)(1)(A).
Because the defendants are not prejudiced by these deficiencies and because the Court has
ultimately decided to overrule Favors’s objections on the merits, the Court will accept the
objections despite these rule violations.
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(8th Cir. 2004). Indeed, the Supreme Court requires a complaint to contain “sufficient
factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Moreover, the facts pleaded must allow “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Id.
The Court
concludes that the Magistrate Judge articulated and applied the correct standard for
assessing a complaint and overrules Favors’s objection that the R&R did not apply a
sufficiently liberal construction to the complaint.
III.
ELEVENTH AMENDMENT IMMUNITY
In his second objection, Favors objects to the Magistrate Judge’s Eleventh
Amendment analysis, arguing that the Eleventh Amendment only applies to the state
institutional defendants, that his damages claims are allowed against state officials
because he is suing all of them in their individual capacities (for damages), and that
qualified immunity provides no defense because they have all violated Favors’s clearly
established federal rights.
(Objections at 4-5.)
The Court overrules this objection
because the Magistrate Judge’s Eleventh Amendment analysis is not to the contrary.
The R&R accurately recounts the state of Eleventh Amendment sovereign
immunity law.
(R&R at 11-12.)
“The Eleventh Amendment establishes a general
prohibition of suits in federal court by a citizen of a state against his state or an officer or
agency of that state.” 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)). There are
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limited exceptions to the Eleventh Amendment bar on suits against states and state
officials (in their official capacity); most obviously the doctrine of Ex Parte Young, 209
U.S. 123 (1908), that allows a private party to “sue a state officer in his official capacity
to enjoin a prospective action that would violate federal law.” Id. (emphasis added).
The Ex Parte Young doctrine does not allow a plaintiff to sue a state or state officials in
their official capacity for damages, however.
Id. A suit against state officials for
damages, suing them in their individual capacities (i.e., the damages would not be paid
by the state’s treasury), may be allowed. Hafer v. Melo, 502 U.S. 21, 25 (1991). But a
state official sued in his or her individual capacity may be entitled to qualified immunity,
unless the official violated a constitutional right of the plaintiff and that right was “clearly
established.” Nelson v. Corr. Med. Servs., 583 F.3d 522, 528 (8th Cir. 2009) (internal
quotation marks omitted).
The R&R simply clarifies that the Eleventh Amendment bars suits against states,
state agencies, and officials and, to the extent the complaint can be read to seek damages
from state officials sued in their official capacities, or otherwise violate the Eleventh
Amendment’s bar on suits against states, those claims should be dismissed. (R&R at 12.)
It does not attempt to use the Eleventh Amendment to bar suits against state officials
when sued in their individual capacities. Favors’s objections to the Magistrate Judge’s
Eleventh Amendment analysis are overruled.
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IV.
HECK V. HUMPHREY DOCTRINE
A.
Claims Against Hoover
Favors next objects, in his third objection, to the Magistrate Judge’s
recommendation that the Court dismiss Favors’s 42 U.S.C. § 1983 claims against
Hoover.
(Objections at 5-7.)
The recommendation is based on the “favorable-
termination rule of Heck v. Humphrey, 512 U.S. 477 (1994).” Entzi v. Redmann, 485
F.3d 998, 1003 (8th Cir. 2007). The Court in Heck “held that ‘in order to recover
damages for allegedly unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or sentence invalid, a
Section 1983 plaintiff must prove that the conviction or sentence has been reversed on
appeal, expunged by executive order, declared invalid by a state tribunal authorized to
make such a determination, or called into question by a federal court’s issuance of a writ
of habeas corpus.’” Id. (quoting Heck, 512 U.S. at 486-87). A plaintiff must satisfy this
favorable-termination requirement even if he is no longer incarcerated and, as a result,
cannot obtain habeas relief. Id.
In Entzi, the court held that, under Heck, a Section 1983 plaintiff would have to
meet the favorable-termination requirement when “challenging the duration of his
imprisonment or the loss of sentence-reduction credits.” Id. (“If [plaintiff’s] challenge to
the State’s decision on sentence-reduction credits were to succeed, it ‘would necessarily
imply the invalidity of his conviction or sentence.’” (quoting Heck, 512 U.S. at 487)). In
other words, a plaintiff making such a challenge would need to seek habeas relief, or, if
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the plaintiff had been released and habeas relief was not available, one of the other types
of relief listed above, before asserting a constitutional claim in federal court. Id.
The crux of Favors’s claims against Hoover is that her retaliatory reports and false
testimony led to his parole revocation and imprisonment. (See, e.g., Compl. ¶ 253.) The
Heck favorable-termination requirement applies to Favors’s challenge to his parole
revocation and imprisonment. See Marlowe v. Fabian, 676 F.3d 743, 745-47 (8th Cir.
2012). And, as the R&R correctly noted, Favors has not met the favorable-termination
requirement regarding his parole revocation. (R&R at 16-17.) The Washington County
District Court decision may include dicta sympathetic to Favors’s cause, but the court did
not rule on the merits of Favors’s claims. Marlowe, 676 F.3d at 747 (concluding that a
Minnesota Court of Appeals decision that remanded the plaintiff’s “habeas claim to the
trial court” “was not a favorable termination” for the plaintiff, “because his incarceration
was not ‘reversed, expunged, invalidated, or impugned’” (emphasis omitted)). And, as
previously noted, the Carlton County District Court has yet to rule on the habeas claim
transferred to it by the Washington County judge. Thus, Heck bars Favors’s Section
1983 claims against Hoover, to the extent they allege Hoover’s actions were the cause of
his parole revocation.
Moreover, Heck also bars a suit for damages stemming from other harmful actions
that, if deemed unlawful, would necessarily mean that a conviction or sentence was
unlawful. Portley-El v. Brill, 288 F.3d 1063, 1067 (8th Cir. 2002). As the R&R correctly
notes, Favors’s complaint asserts that all of Hoover’s retaliatory actions ultimately
culminated in his parole revocation and imprisonment with the DOC in Stillwater. (R&R
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at 17.)
Indeed, the report of the DOC’s Hearings and Release Unit, detailing the
August 23, 2010 hearing and concluding Favors’s parole needed to be revoked, bases its
decision largely on testimony from Hoover that provides a chronology of her entire
history of interaction with Favors. (DOC Hearings and Release Unit, Ex. 71, Oct. 31,
2013, Docket No. 106-3.) If Favors succeeds in demonstrating that any of Hoover’s
reports or actions were false or retaliatory, he will impugn or effectively invalidate his
parole revocation, which Heck bars.
Favors argues that, even if Heck bars his allegations against Hoover related to the
parole revocation, he may challenge his isolation separately. (Objections at 5-7.) But the
Magistrate Judge did state that Heck does not bar a challenge to the fact of Favors’s
isolation itself. (R&R at 19-20.) As to Favors’s claims against Hoover, however, Hoover
was not the one who placed Favors directly in isolation. (Compl. ¶ 229.) Instead, it was
the stalking allegations and I.P.P. recommendation in Hoover’s allegedly false and
retaliatory tenth report that most directly led to his isolation. (Id. ¶¶ 187-95.) Those
same allegations also led to his parole revocation. (Id. ¶ 253.) In other words, trying to
draw a distinction between his isolation and imprisonment, for the purposes of his claims
against Hoover, is futile. As a result, the Court overrules Favors’s objections to the
Magistrate Judge’s recommendation that Favors’s Section 1983 claims against Hoover
should be dismissed without prejudice.6
6
Favors raises the same arguments again in his twenty-first objection. He disputes the
Magistrate Judge’s legal conclusion that success on his Section 1983 claim challenging his
parole revocation and imprisonment with the DOC in Stillwater would impugn the validity of
(Footnote continued on next page.)
- 17 -
B.
Heck and Other Defendants
In his twenty-second objection, Favors seems to object to the Magistrate Judge’s
recommendation to bar some of Favors’s claims against other defendants under Heck.
(Objections at 57-58; R&R at 18-20.) He argues that no other defendant raised Heck as a
defense and that it cannot bar all of his claims. (Objections at 57.) Since the decision in
Heck, the Supreme Court has recognized a broadening of the scope and reach of the
favorable-termination requirement. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005)
(“These cases, taken together, indicate that a state prisoner’s Section 1983 action is
barred (absent prior invalidation) – no matter the relief sought (damages or equitable
relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or
internal prison proceedings) – if success in that action would necessarily demonstrate the
invalidity of confinement or its duration.”). Thus, Heck applies and bars any of Favors’s
claims that would demonstrate the invalidity of his parole revocation and imprisonment,
since he has not yet met the favorable-termination requirement.
While Favors is correct that not every defendant raised Heck in their motions to
dismiss, that fact does not mean the Court cannot conclude his claims are Heck-barred.
____________________________________
(Footnote continued.)
that imprisonment and therefore be Heck-barred. (Objections at 52-57.) He argues that the
Washington County District Court habeas decision did, practically, meet the favorabletermination requirement, as much as was possible under the circumstances. (Id. at 54-55.) He
notes that the state court went so far as to forecast the possibility of him filing a Section 1983
claim. (Id. at 55-56.) He also seems to argue that Heck only applies to his underlying criminal
conviction, not the parole revocation. (Id. at 57.) These arguments are all addressed above and,
since all of them are unavailing, the Court overrules this objection as well.
- 18 -
Favors is proceeding without the payment of fees, under 28 U.S.C. § 1915. (Order on
Application to Proceed Without Prepayment of Fees, April 2, 2013, Docket No. 3.)
Section 1915(e)(2)(B)(ii) empowers the Court to “dismiss the case at any time if [it]
determines that . . . the action . . . fails to state a claim on which relief may be granted.”
See also Gautreaux v. Sanders, 395 Fed. Appx. 311, 312 (8th Cir. 2010) (affirming the
district court’s dismissal, under 28 U.S.C. § 1915(e)(2)(B), of Heck-barred Section 1983
claims, but modifying the dismissal to be without prejudice).
Thus, the Court can
analyze Favors’s claims’ viability under Heck even if the defendants did not raise it.
Finally, to the extent Favors argues again in this objection that the Magistrate
Judge was wrong to recommend dismissing his claims against Hoover, the discussion in
the preceding section addresses those arguments. (Objections at 56-57.) Because they
impugn the validity of his parole revocation and imprisonment, and because Favors has
failed to meet the favorable-termination requirement, his Section 1983 claims against
Hoover, and the claims against other defendants the Magistrate Judge identified, (R&R at
18-19), are Heck-barred. The Court overrules Favors’s objections.7
7
In his eighth objection, Favors again raises Heck. (Objections at 17-18.) He argues that
his claims against several defendants regarding his HSA isolation – namely that the isolation was
retaliatory and the conditions were punitive, cruel, and abusive – are not barred by Heck. (Id.)
The Court overrules this objection. The R&R only states that, to the extent his isolation claims
allege that the isolation was based on false accusations that he was stalking Hoover, those claims
are Heck-barred. (R&R at 26.) That analysis is correct because concluding the HSA isolation
wrongly relied on the stalking accusations and therefore violated Favors’s constitutional rights
would necessarily also implicate and impugn the validity of Favors’s parole revocation, which
was based on the same stalking allegations.
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V.
DIRECT PERSONAL INVOLVEMENT
To successfully assert a claim under 42 U.S.C. § 1983, “a plaintiff must prove
(1) violation of a constitutional right, (2) committed by a state actor, (3) who acted with
the requisite culpability and causation to violate the constitutional right.” McDonald v.
City of St. Paul, 679 F.3d 698, 704 (8th Cir. 2012) (internal quotation marks omitted). A
plaintiff must show some personal involvement on the part of the defendant official;
vicarious liability or the doctrine of respondeat superior will not suffice. Clemmons v.
Armontrout, 477 F.3d 962, 967 (8th Cir. 2007) (“Liability under section 1983 requires a
causal link to, and direct responsibility for, the deprivation of rights. To establish
personal liability of the supervisory defendants, [the plaintiff] must allege specific facts
of personal involvement in, or direct responsibility for, a deprivation of his constitutional
rights.” (internal quotation marks omitted)).
A.
Failure to Train and Supervise
Favors argues in his fourth objection that, contrary to the Magistrate Judge’s
recommendation, his failure to train claims against seven defendants should go forward
because those defendants ignored the fact that MSOP employees were having “personal
relationship[s]” with civilly committed patients at MSOP.
(Objections at 7-9.)
Assuming, as the Magistrate Judge did, that Favors’s failure-to-train allegations
constitute a 42 U.S.C. § 1983 claim, the Court nevertheless overrules Favors’s objections.
For Favors to demonstrate failure-to-train liability, he must show “the need for
more or different training is so obvious, and the inadequacy so likely to result in the
- 20 -
violation of constitutional rights, that [the defendants] can reasonably be said to have
been deliberately indifferent to the need.” Ambrose v. Young, 474 F.3d 1070, 1079-80
(8th Cir. 2007) (internal quotation marks omitted). The standard includes a causation
element: “the identified deficiency in . . . training . . . must be closely related to the
ultimate injury such that the deficiency in training actually caused the . . . offending
conduct.” Andrews v. Fowler, 98 F.3d 1069, 1077 (8th Cir. 1996) (internal quotation
marks omitted).
Even assuming that Favors’s allegations regarding other MSOP employees,
beyond Hoover, having relationships with MSOP patients do not constitute a motion to
amend his complaint, (State Def.’s and Def. Benson’s Resp. to Plaintiff’s Objections to
the R&R, at 3-4, June 5, 2014, Docket No. 212), Favors’s objections are unavailing for
two reasons. First, he cannot show that the need for more training regarding sexual
conduct with MSOP patients is so obvious that the defendants were deliberately
indifferent to that need. See Andrews, 98 F.3d at 1077 (“In light of the regular law
enforcement duties of a police officer, we cannot conclude that there was a patently
obvious need for the city to specifically train officers not to rape young women.”)
Instead, Hoover’s attempts, for example, to cover up her illicit behavior, (Compl. ¶ 257),
show that MSOP employees understood fully that such conduct was wrong. And to the
extent Favors argues that the named defendants simply ignored his or any complaints
regarding Hoover, and thereby demonstrated deliberate indifference, that argument is
belied by the fact that MSOP did conduct an investigation and, according to Favors
himself, eventually terminated and prosecuted Hoover. (Id. ¶¶ 274, 282-83.)
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Second, even in light of his allegations regarding other MSOP employees, Favors
has failed to meet the causation requirement. He has not shown that the failure to train
led to the “offending conduct.” Andrews, 98 F.3d at 1077. Indeed, different than in
Andrews, the “offending conduct” here is more removed from the failure to train. The
“offending conduct” is not the relationship between Hoover and Crow, since that
relationship did not implicate Favors’s constitutional rights. Instead, the question is
whether the failure to train led to an inappropriate relationship that led to all of the other
harmful conduct of which Favors complains (e.g., retaliation, wrongful imprisonment and
isolation, etc.). Favors has failed to meet that causation burden. Thus, his objections to
the Magistrate Judge’s failure-to-train analysis are overruled.
In his fifth objection, Favors also challenges the Magistrate Judge’s
recommendation to dismiss his failure-to-supervise claims. (Objections at 10-11.) “A
failure-to-supervise claim may be maintained only if the official demonstrated deliberate
indifference or tacit authorization of the offensive acts.” Kahle v. Leonard, 477 F.3d 544,
550 (8th Cir. 2007) (internal quotation marks omitted). “‘[T]he official must both be
aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.’” Id. at 550 (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994)). Favors argues that his various complaints contained
overwhelming evidence of Hoover’s inappropriate relationship with Crow and that
defendants’ failure to take action sooner shows deliberate indifference or tacit
authorization. (Objections at 10-11.) But Favors’s many complaints, while compelling
- 22 -
in hindsight, do not contain enough evidence to show a substantial risk of serious harm to
Favors. As a result, this objection is overruled.
B.
Retaliation
Favors objects to the Magistrate Judge’s recommendation that the Court conclude
Favors had failed to show personal involvement by a number of defendants in retaliation
against Favors. (Objections at 11-16.) Specifically, he argues that defendants Kozisch,
Swanson, Storkamp, Hebert, Youngst, O’Conner, Hibber, Ramem, Jesson, Moser,
Linkert, Benson, White, Magaard, Virden, James, and Hoover were all personally
involved in retaliation in various ways: by putting Favors in punitive isolation, by
receiving Favors’s complaints and allegations by mail and ignoring them, by subjecting
Favors to harassing room searches, by enforcing punitive isolation policies and
procedures, by firing him from a MSOP job, by treating Favors differently only after he
had filed complaints against MSOP staff, by testifying falsely to the Hearings and
Release Unit, by restricting Favors’s movements within MSOP, and by falsely accusing
Favors of stalking and harassing Hoover.
The First Amendment bars “government officials from subjecting an individual to
retaliatory actions . . . on the basis of his constitutionally protected speech.” Osborne v.
Grussing, 477 F.3d 1002, 1005 (8th Cir. 2007) (internal quotation marks omitted). To
succeed in a retaliation action, a plaintiff must demonstrate “a causal connection between
a defendant’s retaliatory animus and [plaintiff’s] subsequent injury.”
Id. (internal
quotation marks omitted). In his objections, Favors largely repeats the allegations found
- 23 -
in his complaint. His Section 1983 claims against Hoover, as discussed above, are Heckbarred. Other defendants he lists in this part of his objections are not actually discussed
in the corresponding section of the R&R. As to the remaining defendants, Favors fails in
his objections to provide anything more than conclusory allegations not only of alleged
injuries he suffered, but of the causal link between the retaliatory animus each of the
defendants on his list allegedly felt toward him and the injuries he eventually
experienced. As a result, the Court overrules Favors’s sixth objection.
C.
Room Searches
The Magistrate Judge recommended dismissing Favors’s Fourth Amendment
claims, which allege that he was subjected to unconstitutional room searches and strip
searches. (R&R at 25.) The R&R notes that, in his complaint, Favors has not identified
the people responsible, nor has he sufficiently alleged the personal involvement of any
officials. (Id.) Favors counters that defendants Youngst and O’Conner were directly
responsible for the retaliatory daily room searches and that the reasons for the searches –
first that they were random, then that they were due to his alleged stalking of Hoover –
were mere pretext, covering up a deeper retaliatory motive. (Objections at 16-17.)
The Court overrules this objection because, even assuming the Court can consider
at this stage Favors’s more specific allegations regarding Youngst and O’Conner, Favors
has not alleged searches that are outside the scope of what is reasonable under the Fourth
Amendment.
Beaulieu v. Ludeman, 690 F.3d 1017, 1028-29 (8th Cir. 2012).
The
searches were especially reasonable given the allegations that Favors was stalking,
- 24 -
following, and harassing Hoover.
As a civilly committed person, Favors has more
protections than a true prisoner, but “his confinement is [still] subject to the same safety
and security concerns as that of a prisoner.” Id. at 1028 (internal quotation marks
omitted). Even factoring in the allegations in both the complaint and the objections,
Favors has still failed to show a Fourth Amendment violation.
Favors’s seventh
objection is overruled.
D.
Abusive Conditions In and Around HSA Isolation
Favors also objects to the Magistrate Judge’s conclusion that Favors had failed to
demonstrate sufficient personal involvement by any defendant in the poor conditions he
faced while serving in HSA isolation and the shackling he experienced while being
transported to and from isolation. (Objections at 18-21.) He argues that the policies that
allowed such poor treatment are unwritten but understood by all MSOP employees. He
also contends that he had a list of responsible MSOP staff members but that list was
confiscated, and that similar allegations in other MSOP civil rights cases – namely the
Holly v. Konieska case – provide sufficient evidence to get beyond a motion to dismiss.
(Id.); see, e.g., Holly v. Konieska, No. 04-cv-1489 (ADM/FLN), 2012 WL 2126838, at *1
(D. Minn. June 12, 2012) (describing a prior order in the Holly case that had directed
MSOP to change and improve its HSA isolation rules and procedures).
Similar to the arguments considered by the Magistrate Judge, these new arguments
still fail to provide sufficient factual detail to support a Fourteenth Amendment
substantive due process claim based on the conditions of his isolation and movement to
- 25 -
and from isolation. The R&R pointed out that Favors challenged no specific MSOP
isolation-condition policy. (R&R at 26.) Favors’s objection provides a conclusory claim
that the policy exists and is known by MSOP employees, but is unwritten. But Favors
provides no evidence for this accusation and more is needed to survive this motion to
dismiss. Moreover, his inability to point to any employees aside from HSA supervisors
leaves him far short of the “personal involvement” requirement for making a
constitutional claim against state officials. Favors also fails to explain, with specificity,
why his case is similar to the Holly case, especially given the amount of time that has
passed since that case, and the changes MSOP has presumably made since then. Finally,
his allegations regarding shackling are especially unavailing, given that the Eighth Circuit
has recently ruled that MSOP’s restraint policy does not violate the Constitution.
Beaulieu, 690 F.3d at 1032-33. In sum, the Court overrules Favors’s ninth and tenth
objections.
VI.
FIRST AMENDMENT RETALIATION
To show a prima facie case of retaliatory discipline, Favors must demonstrate that
“(1) [he] exercised a constitutionally protected right; (2) prison officials disciplined
[him]; and (3) exercising the right was the motivation for the discipline.” Haynes v.
Stephenson, 588 F.3d 1152, 1155 (8th Cir. 2009) (internal quotation marks omitted). The
third element requires proof of “but-for” causation: “[t]o establish the third element of the
prima facie case for retaliatory discipline . . . an inmate must show that but for a
- 26 -
retaliatory motive the prison official would not have filed the disciplinary report.” Id. at
1156.
A.
Defendant Benson
The Magistrate Judge recommends dismissing Favors’s First Amendment claims
against Benson because he has failed to demonstrate the third element; in other words,
Favors has failed to show a “but-for” causal connection between the retaliatory motive
Favors alleges and the disciplinary action taken by Benson.
(Objections at 21-23.)
Favors argues in his objections that Benson lied about Favors violating MSOP rules and
that Benson had no way to know Favors was not telling the truth about Hoover and other
MSOP employees. (Id.)
Finally, to the extent the Magistrate Judge presents other
reasons, aside from the retaliatory motive, for Benson’s actions, Favors contends those
reasons are wrong. (Id. at 22-23.) Specifically, he argues that because his movements
were so restricted within the MSOP facility, there is no way he could stalk and
investigate Hoover, and every MSOP employee knows that practical reality. (Id.)
The Court overrules this objection because Favors has failed to provide sufficient
support, even at this early stage of the proceedings, for the but-for causation element of
the retaliation standard. As the R&R correctly noted, Benson had other reasons – namely
the actual evidence that Favors was stalking, or at least aggressively following and
investigating Hoover – to taking disciplinary action against Favors, aside from his alleged
retaliatory motive.
(R&R at 30.)
While it is true that Favors’s movements were
somewhat restricted in the MSOP facility, his own exhibits belie the claim that he was
- 27 -
unable to investigate or follow Hoover. Indeed, the record shows that Favors assembled
a long list of complaints and observations about Hoover’s behavior. The amount of time
and energy needed to mount this personal investigation was likely to trigger some
concern on the part of Benson and, as a result, provide an alternative justification for his
disciplinary action that shows Favors has failed to demonstrate but-for causation.
Favors’s eleventh objection is overruled.
B.
Defendants James, Magaard, Virden, Hebert, and Storkamp
Favors objects to the Magistrate Judge’s recommendation that Favors’s retaliation
claims against James, Magaard, Virden, Hebert, and Storkamp should be dismissed.
(Objections at 23-37.) He argues that, under the Sixth Circuit’s decision in Thaddeus-X
v. Blatter, he has demonstrated a plausible retaliation claim against defendants James,
Magaard, and Virden because of the timing of their adverse actions. 175 F.3d 378, 399
(6th Cir. 1999) (“Circumstantial evidence, like the timing of events or the disparate
treatment of similarly situated individuals, is appropriate.”)
He claims that these
defendants only took adverse action against him after he starting filing complaints against
Hoover and other staff at MSOP. He claims that because he mailed complaints to Hebert
and Storkamp, they “knew or should have known” about Hoover’s wrongful actions, but
remained indifferent to them. (Objections at 27.) To the extent the R&R credits another
explanation for these defendants’ actions – namely that they believed, rightly or not,
Hoover’s stalking allegations – Favors argues that issue is a factual one best left to a jury.
- 28 -
As to Hebert and Storkamp, the objections continue to allege only vicarious or
respondeat superior liability, which, as discussed above, is not sufficient. As to James,
Magaard, and Virden, Favors largely repeats the conclusory allegations found in his
complaint. And while the timing of adverse actions can support a retaliation allegation,
simply using that label cannot meet the requirements of plausibility in a complaint. The
R&R rightly considered the most obvious alternative explanation, Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 597 (8th Cir. 2009), and Favors has failed to allege the sort of
“additional facts” needed “to rule out the alternative.” As a result, he has failed to show
the but-for causation element of a retaliation claim. Supreme Court and Eighth Circuit
law clearly empowers the Court to make such a determination, contrary to Favors’s claim
that this issue must be submitted to a jury. The Court overrules Favors’s twelfth,
thirteenth, and fourteenth objections.
C.
Defendant White
In his sixteenth objection, Favors disputes the Magistrate Judge’s recommendation
to dismiss Favors’s retaliation claim against White.
(Objections at 30-32.)
Favors
contends that White gave him a cleaning job, but failed to tell him about it, and when
Favors never showed up for work, White then assigned him to a kitchen job (which
Favors explicitly stated he did not want to do). (Id.) Favors cites Thaddeus-X again,
stating that he can get beyond the motion-to-dismiss stage by pointing to the timing of
White’s adverse actions. (Id. at 31.) Here again, the Court overrules Favors’s objection
because he has failed to show any plausible way that he might meet the but-for causation
- 29 -
requirement of a retaliation claim. Assuming that assigning Favors to kitchen work he
did not want to do is “disciplinary action,” it is not apparent from the complaint that
White only did this due to a retaliatory motive. Favors’s conclusory claim that his
employment issues at the MSOP facility were all “Todd White’s fault” is not enough to
survive a motion to dismiss. (Objections at 31.) This objection is overruled.8
VII.
CONSPIRACY
To state a civil rights conspiracy claim under 42 U.S.C. § 1985, Favors must
allege “(1) a conspiracy, (2) for the purpose of depriving another of the equal protection
of the laws, or of equal privileges and immunities under the laws; (3) an act in
furtherance of the conspiracy; and (4) an 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) (internal
quotation marks omitted). Civil rights conspiracy claims require “proof of a class-based
animus.” Id. The R&R recommends dismissing Favors’s conspiracy claim because he
has failed to allege “class-based animus.”
(R&R at 34-35.) Favors objects to the
Magistrate Judge’s recommendation, arguing that he has alleged a class against whom the
defendants harbor animus: sex offenders. (Objections at 32-33.) However, Favors’s
complaint alleges that the defendants acted in retaliation for his grievances against them,
not out of a feeling of animosity toward all sex offenders. Moreover, Favors provides no
8
Favors also argues that his complaint is robust enough to demonstrate a viable
retaliation claim against Hoover. (Objections at 28-30.) The R&R does not address Hoover in
this section, however, since a retaliation claim is asserted under 42 U.S.C. § 1983 and the R&R
already recommended that Hoover’s Section 1983 claims be Heck-barred. Since this Court
agrees with that recommendation, Favors’s fifteenth objection is overruled.
- 30 -
support for the claim that a group of sex-offender litigants constitutes a class protected by
Section 1985.
See, e.g., Biby v. Bd. of Regents of Univ. of Neb. at Lincoln, 338
F. Supp. 2d 1063, 1074-75 (D. Neb. 2004) (concluding that similarly situated people
suing the government for redress of grievances are not, due to their common injuries and
litigating positions alone, a cognizable class).
Favors’s seventeenth objection is
overruled.
VIII. DENIAL OF ACCESS TO THE COURTS
Favors objects to the Magistrate Judge’s recommendation to dismiss his claim that
he was denied access to the courts when certain defendants confiscated his legal research
materials. (Objections at 33-35.) In response to the R&R’s conclusion that Favors had
failed to allege an actual injury, (R&R at 36), Favors cites Thaddeus-X for the proposition
that in the retaliation context, actual injury is not required; instead, it is enough to show
that Favors “is penalized for actually exercising” his right of access to the courts.
Thaddeus-X, 175 F.3d at 394.
Setting aside the fact that Thaddeus-X is a Sixth Circuit case, the decision
recognizes that in a standard claim alleging a denial of access to the courts, actual injury
is necessary. Id. In a retaliation claim, however, the claim is not that a plaintiff was
denied access to the courts, but that he was penalized, in a retaliatory manner, because of
his attempts to use the legal system. Id. Either way, however, the Court overrules
Favors’s objection and adopts the recommendation to dismiss this claim. If Favors is
alleging that the seizure of his legal documents has denied him the ability to access the
- 31 -
court system or make further complaints, he has failed to allege what injury has resulted
from that harm. If, on the other hand, he alleges that the seizure is another example of
retaliatory actions taken against him by MSOP employees, he has failed to meet the butfor causation requirement that plausibly shows that these documents were seized pursuant
to a retaliatory motive. Thus, the Court overrules Favors’s eighteenth objection.
IX.
PROCEDURAL AND SUBSTANTIVE DUE PROCESS
A.
Procedural Due Process
The Court reviews a procedural due process claim in two steps. First, the Court
asks “whether [Favors] has been deprived of a protected liberty or property interest.”
Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006). Second, if Favors has a
protected interest, the Court considers “what process is due by balancing the specific
interest that was affected, the likelihood that the [challenged] procedures would result in
an erroneous deprivation, and the [challenged program’s] interest in providing the
process that it did, including the administrative costs and burdens of providing additional
process.” Id. The R&R recommends dismissing Favors’s claim that he was put in HSA
isolation in violation of his procedural due process rights because (1) the process he
received was similar to the process approved in Senty-Haugen; and (2) even if Favors
was entitled to greater protection than he received, the defendants he sued are entitled to
qualified immunity on Favors’s procedural due process claim and Favors has not
demonstrated a violation of clearly established rights. (R&R at 36-40.)
- 32 -
Favors objects, claiming that the case is different from Senty-Haugen because the
defendants here were not actually isolating him to investigate allegations of stalking but
were instead doing so to retaliate against him. (Objections at 35.) But these allegations,
which are relevant to a retaliation claim and go to the defendants’ motives for isolating
him, fail to show that Favors received deficient process prior to being isolated. Instead,
the record shows Favors received notice and an opportunity to contest his isolation – the
sort of process approved of in cases like Senty-Haugen. (Compl. ¶¶ 233, 238; Findings
and Recommendations of the HRB, Ex. 43(1), Oct. 31, 2013, Docket No. 106-3.) And
Favors has failed to demonstrate why qualified immunity would not protect the
defendants, since there is no case law to show that they violated his clearly established
constitutional rights. Favors’s nineteenth objection is overruled.
B.
Substantive Due Process
The substantive due process right found in the Fourteenth Amendment protects
Favors from government conduct (which deprives a person of life, liberty, or property)
that “shocks the conscience” or “interferes with rights implicit in the concept of ordered
liberty.” Strutton v. Meade, 668 F.3d 549, 558 (8th Cir. 2012) (quoting United States v.
Salerno, 481 U.S. 739, 746 (1987)) (internal quotation marks omitted). The Eighth
Circuit has noted that substantive due process violations are rare. Id. at 557 (“Only in the
rare situation when . . . state action is truly egregious and extraordinary will a substantive
due process claim arise.” (internal quotation marks omitted)). In his twentieth objection,
Favors argues that he suffered multiple substantive due process violations and objects to
- 33 -
the Magistrate Judge’s recommendation to dismiss each of those alleged violations.
(Objections at 35-52.) The Court will consider each alleged violation in turn.
1.
Loss of Wages and Employment
Favors contends that Minnesota Administrative Rule 9515.3040 creates an interest
in employment while in a treatment program like MSOP. (Objections at 37.) He argues
White violated that interest by assigning Favors a job but setting him up to fail by not
telling Favors about it, and then by assigning him a kitchen job that White knew Favors
did not want to do. (Objections 36-40.) Favors accuses others of being complicit in this
conduct, which Favors claims “shocks the conscience.” (Objections at 37-40.)
While the rule Favors cites sets out certain requirements for sex offender treatment
programs generally, it does not create a statutory interest in a work program for
individual participants in the treatment program. Cf. Wishon v. Gammon, 978 F.2d 446,
450 (8th Cir. 1992) (“Prisoners have no constitutional right to educational or vocational
opportunities during incarceration.”). Moreover, Favors’s allegations regarding White,
and others to whom Favors directed complaints about White, do not demonstrate the sort
of egregious behavior that truly “shocks the conscience.”
The Court overrules this
objection.
2.
Loss of Recreation and Education
Favors contends that the I.P.P. that restricted his access to the recreation and
education areas of the MSOP facility between noon and 9 p.m. deprived him of critical
components of his treatment program (i.e., the chance to socialize with others and to
- 34 -
learn and rehabilitate) and that the I.P.P. was retaliatory and justified only by the false
claim that he was stalking and harassing Hoover. (Objections at 40-47.) Here again,
keeping in mind that substantive due process violations are supposed to be rare and
egregious, see Strutton, 668 F.3d at 557-58, the Court concludes Favors has failed to
demonstrate a substantive due process violation where the I.P.P. still allowed Favors to
use the recreation and education areas before noon. The I.P.P. is not the sort of wrong
against which the Fourteenth Amendment protects Favors. This objection is overruled.
3.
Seclusion
Favors objects to the Magistrate Judge’s recommendation to deny his seclusion
claim, arguing that his time in isolation at MSOP caused him years of psychological
trauma. (Objections at 41-42.) He appears to be responding to the R&R’s citation to
Wishon, 978 F.2d at 448-49, in which the Eighth Circuit rejected an Eighth Amendment
challenge by a prisoner who received 45 minutes per week for exercise and 30 minutes
per week for showers but alleged no injury or decline in health. But even if Favors’s
objections sufficiently allege a decline in health, they do not change the fact that he has
shown neither that he was deprived of basic necessities, nor that there was any substantial
risk of harm, or the decline in health Favors complains of, that the defendants ignored.
Beaulieu, 690 F.3d at 1045. Favors’s seclusion objection is overruled.
4.
Inadequate Treatment and Wrongful Discharge from Treatment
The Magistrate Judge recommends dismissing Favors’s inadequate and wrongful
discharge from treatment claims because his discharge from treatment when he was in
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isolation and when he was returned to prison was not egregious or extraordinary and
because he does not have a substantive due process right to sex offender treatment.
(R&R at 44 (citing Strutton, 668 F.3d at 557 (“The district court was correct that Strutton
does not have a fundamental due process right to sex offender treatment.”); Bailey v.
Gardebring, 940 F.2d 1150, 1155 (8th Cir. 1991)).)
Favors objects to this
recommendation but ultimately points to no authority to show that the breaks in treatment
were egregious or that he has a right to sex offender treatment at all. (Objections at 4851.) As a result, the Court overrules Favors’s inadequate treatment and discharge from
treatment objections.9
X.
STATE LAW CLAIMS
Because the Court adopts the recommendation of the Magistrate Judge to dismiss
Favors’s federal claims, the Court also agrees with the R&R’s recommendation to decline
to exercise supplemental jurisdiction over Favors’s state law claims. Gregoire v. Class,
236 F.3d 413, 420 (8th Cir. 2000) (“We stress the need to exercise judicial restraint and
avoid state law issues wherever possible.” (internal quotation marks omitted)).
9
Favors also claims Hoover’s relationship with Crow is egregious behavior that “shocks
the conscience.” (Objections at 52.) However, Favors fails to show how the egregiousness of
Hoover’s behavior with Crow deprived Favors of a cognizable interest. Moreover, Favors’s
claims against Hoover are addressed in the Heck portion of the R&R and this Order. The Court
overrules this objection.
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XI.
DEFAULT JUDGMENT
Favors did not object to the Magistrate Judge’s recommendation to dismiss
Favors’s default judgment motion against Mehl and Boreland. (Default Judgment R&R,
May 13, 2014, Docket No. 207.) Finding no clear error, the Court also adopts that R&R.
ORDER
Based on the foregoing, and the records, files, and proceedings herein, the Court
OVERRULES Favors’s objections [Docket No. 210] and ADOPTS the first Report and
Recommendation of the Magistrate Judge dated May 13, 2014 [Docket No. 207] and the
second Report and Recommendation of the Magistrate Judge dated May 13, 2014
[Docket No. 208]. Accordingly, IT IS HEREBY ORDERED that:
1.
Plaintiff’s motion for default judgment [Docket No. 143] is DENIED.
2.
Defendant Michelle Hoover’s motion to dismiss plaintiff’s federal claims
[Docket No. 195] is GRANTED and those federal claims against her are DIMISSED
without prejudice.
3.
The State Defendants’ motion to dismiss plaintiff’s federal claims against
them [Docket No. 88] is GRANTED and those federal claims against the State
Defendants are DIMISSED without prejudice.
4.
Defendants Christopher Boreland and Mark Mehl’s motion to dismiss
plaintiff’s federal claims [Docket No. 139] is GRANTED and those federal claims
against the Boreland and Mehl are DIMISSED without prejudice..
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5.
Defendant Dennis Benson’s motion to dismiss plaintiff’s federal claims
against him [Docket No. 132] is GRANTED and those federal claims against Benson are
DIMISSED without prejudice.
6.
The Court declines to exercise supplemental jurisdiction over the remaining
state law claims against Michelle Hoover, the State Defendants, the County of Dakota
(Boreland and Mehl), and Dennis Benson.
DATED: September 30, 2014
at Minneapolis, Minnesota.
___s/
_____
JOHN R. TUNHEIM
United States District Judge
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