Alexander v. Steele County Jail et al
Filing
87
ORDER denying 46 Motion for Summary Judgment; denying 56 Motion for Entry of Judgment; granting 60 Motion for Summary Judgment; Adopt Report and Recommendation 81 Report and Recommendation. (Written Opinion). Signed by Judge Susan Richard Nelson on 09/04/2014. (SMD)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Jomari E. Alexander, Sr.,
Case No. 13-cv-796 (SRN/FLN)
Plaintiff,
v.
ORDER
Steele County Jail, et al.,
Defendants.
Jomari E. Alexander, Sr., 2706 17th Ave South, Minneapolis, MN 55407, pro se Plaintiff.
Jason M. Hill, Johnson & Lindberg, PA, 780 Northland Plaza, 3800 American Boulevard
West, Minneapolis, MN 55431-4459, for Defendants.
SUSAN RICHARD NELSON, United States District Judge
I.
INTRODUCTION
This matter is before the Court on Plaintiff’s Objections [Doc. No. 82] to United
States Magistrate Judge Franklin L. Noel’s July 31, 2014, Report and Recommendation (“R
& R”). The magistrate judge recommended that Plaintiff’s Motion for Summary Judgment
and/or Sanctions [Doc. No. 46] and Motion for Entry of Judgment [Doc. No. 56] be denied,
and Defendants’ Motion for Summary Judgment [Doc. No. 60] be granted. (R & R at 24-25
[Doc. No. 81].) For the reasons set forth below, Plaintiff’s objections are overruled and the
Court adopts the R & R in its entirety.
II.
BACKGROUND
The magistrate judge’s R & R thoroughly documents the factual and procedural
background of the case, which is incorporated here by reference. The claims in this case
arise from alleged mistreatment Plaintiff experienced while detained at the Steele County
Detention Center in July 2010. (See Compl. [Doc. No. 1-1].)
Plaintiff alleges that on July 9, 2010, Defendant, Officer Al Kubat, “sexually
assaulted [Plaintiff] during a routine pat[-down] search by grabbing his penis and testicles
and pulling them” until Plaintiff physically moved Officer Kubat’s right hand. (Pl.’s Mot.
for Summ. J. at 5 [Doc. No. 46].) Officer Kubat claims (Jason Hill Aff., Ex. E (“Hill Aff.,
Ex. E”), at 2-3 [Doc. No. 63-2]) and Plaintiff admits that during the pat-down Plaintiff made
threatening comments to Officer Kubat (Alexander Aff., Ex. 19, Hearing Findings
(“Hearing Findings”), at 1-2 [Doc. No. 52-1]). As a result of this pat-down incident,
Plaintiff immediately logged a complaint in the detention center’s kiosk system. (Pl.’s Mot.
for Summ. J., Ex. 7 [Doc. No. 48-1].) Two days later, Plaintiff requested to see a
psychologist. (Hill Aff., Ex. E at 10-11 [Doc. No. 63-2].) Upon learning that a psychologist
was unavailable that day, Plaintiff began to kick the walls of his cell, yell, and threatened to
kill the officer on duty, Sergeant Richelle Olson-Cowden. (Id.) Officer Kubat admitted that
it was possible that he “bumped something on Inmate Alexander as [he] was coming down
[Alexander’s] thigh.” (Id. at 2.) Unfortunately, a surveillance video of the pat-down does
not adequately capture the alleged incident. (Hill Aff., Ex. F. [Doc. No. 63].) The pat-down
occurred outside of the camera angle’s view.1 (See id.) Furthermore, the video does not
1
Plaintiff objects to the magistrate judge’s interpretation that the video is not
informative. (Pl.’s Obj. at 4 [Doc. No. 82].) This objection is without merit. Magistrate
Judge Noel correctly explains that “a wall largely obstructs the pat-down from view.” (R
& R at 4, fn. 2 [Doc. No. 81].)
2
include audio, and therefore, cannot corroborate the verbal exchange between Officer Kubat
and Plaintiff. (See id.) Nevertheless, for the purposes of this motion, the Court assumes
that Officer Kubat grabbed Plaintiff’s genitals.
Jail Administrator Dan Schember reported Plaintiff’s sexual assault allegation to the
Steele County Sheriff’s Office, pursuant to the Sheriff’s Office procedure. (Decl. of Dan
Schember (“Schember Decl.”), ¶ 3 [Doc. No. 65].) Officer Gary Okins of the Steele County
Sheriff’s Office completed an investigation of the incident. (Alexander Aff., Ex. 9 [Doc.
No. 48-2, 48-3].) After reviewing the report, Steele County Attorney Dan McIntosh
directed Okins to close the investigation because there was “no intent and no crime doing a
pat down which is the Correctional Officer[’]s job.” (Alexander Aff., Ex. 9 [Doc. No. 483].)
Officer Kubat charged Plaintiff with a “major violation no. 4” for threats he made
during the pat-down on July 9, 2010. (Hill Aff., Ex. E at 2 [Doc. No. 63-2].) As a result of
this charge, Plaintiff was transferred into “lockdown.” (Id. at 4.) During this “lockdown”
period Plaintiff alleges that Sergeant Olson-Cowden and Officer Jason Krohn retaliated
against him for filing a sexual assault claim. (Compl. ¶¶ 3-8 [Doc. No. 1-1].) Specifically,
Plaintiff claims that (1) Officer Krohn taunted him with food and threw a food tray on the
floor (Pl.’s Mot. for Summ. J. at 16-17 [Doc. No. 46]); (2) Sergeant Olson-Cowden
punished Plaintiff for the tray on the floor by ordering that Plaintiff’s subsequent meals
consist of “nutra loaf” (Hill Aff., Ex. E at 8 [Doc. No. 63-2]); (3) Sergeant Olson-Cowden
taunted Plaintiff with a divorce petition from Plaintiff’s wife (Pl.’s Mot. for Summ. J. at 1718 [Doc. No. 46]); and (4) Officer Krohn slammed Plaintiff’s arms in the cell door while
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Plaintiff attempted to reach for his lunch (Compl. ¶ 8 [Doc. No. 1-1]).
On July 12, 2010, Plaintiff was transferred back to Department of Corrections
(“DOC”) custody. (Decl. of Richelle Olson-Cowden (“Olson-Cowden Decl.”), ¶10 [Doc.
No. 66].) In DOC custody he had a due process hearing to address the disciplinary charges
that he received at the Steele County Detention Center. (Pl.’s Mot. for Summ. J. at 23 [Doc.
No. 46].) During the hearing, Plaintiff admitted to several rule violations for “disobeying a
direct order,” “threatening others,” and “disorderly conduct.” (Hearing Findings at 1-2
[Doc. No. 52-1].)
Plaintiff originally filed this lawsuit pro se on March 25, 2013, in Steele County
District Court, against the Steele County Jail, Sergeant Richelle Olson-Cowden, Officer Al
Kubat, Officer Jason Krohn, and Jail Administrator Dan Schember. (See Compl. [Doc. No.
1-1].) Plaintiff alleged several civil rights claims stemming from the pat-down incident.
(Id.) On April 5, 2013, Defendants filed a Notice of Removal to the United States District
Court. (Notice of Filing of Notice of Removal [Doc. No. 1-2].) Even after prolonged
discovery, Plaintiff refused to comply with Magistrate Judge Noel’s order to compel initial
disclosures and responses to other discovery requests. (Order Granting Mot. to Compel
[Doc. No. 18].) The magistrate judge then imposed evidentiary sanctions on Plaintiff
(Order Granting Evidentiary Sanctions [Doc. No. 38]) and ordered Plaintiff to pay
Defendants’ attorney’s fees (Order Granting Defs. Att’ys Fees [Doc. No. 40]).
On January 17, 2014, Plaintiff filed his Motion for Summary Judgment and/or
Sanctions [Doc. No. 46]. On January 30, 2014, Plaintiff filed a motion to enter judgment
because he believed Defendants failed to timely defend [Doc. No. 56]. On February 7,
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2014, Defendants timely filed a cross-motion for summary judgment [Doc. No. 62]. This
matter was referred to the magistrate judge pursuant to 28 U.S.C. § 636 [Doc. No. 68], and
he heard the cross-motions on March 28, 2014 [Doc. No. 78]. On July 31, 2014, Magistrate
Judge Noel recommended that: (1) Plaintiff’s Motion for Summary Judgment and/or
Sanctions [Doc. No. 46] and Motion for Entry of Judgment [Doc. No. 56] be denied; (2)
Defendants’ Motion for Summary Judgment [Doc. No. 60] be granted; and (3) the case be
dismissed with prejudice. (R & R at 24-25 [Doc. No. 81].) Plaintiff filed Objections to the
R & R on August 14, 2014 [Doc. No. 82]. Defendants filed a Response to Plaintiff’s
Objections on August 28, 2014 [Doc. No. 83].
III.
DISCUSSION
A. Standard of Review
A party “may file and serve specific written objections to a magistrate judge’s
proposed findings and recommendations.” D. Minn. LR 72.2(b)(1). The district court will
review de novo those portions of the R & R to which an objection is made, and it “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3); D. Minn. LR
72.2(b)(3). Ordinarily, the district judge relies on the record of proceedings before the
magistrate judge. D. Minn. LR 72.2(b)(3).
As to the underlying summary judgment motions, summary judgment must be
granted if the movant shows that no genuine dispute of material fact exists and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is
“material” if “it might affect the outcome of the suit under the governing law,” and a
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dispute is “‘genuine’ . . . if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
When ruling on a summary judgment motion, “[t]he [C]ourt views the evidence
and the inferences which may be reasonably drawn from the evidence in the light most
favorable to the nonmoving party.” Enter. Bank v. Magna Bank of Mo., 92 F.3d 743,
747 (8th Cir. 1996) (citation omitted). However, “a party opposing a properly supported
motion for summary judgment may not rest upon mere allegations or denials of his
pleading, but must set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256; see also Moody v. St. Charles Cnty, 23 F.3d 1410, 1412 (8th
Cir. 1994) (holding that “[w]ithout some evidence other than [Plaintiff’s] own naked
assertions…, summary judgment was appropriately granted…”). In addition, summary
judgment is appropriate when the nonmoving party fails “to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
B. Objections
Plaintiff’s Objections to the R & R were timely filed on August 14, 2014. (Pl.’s
Obj. [Doc. No. 82].) In light of plaintiff’s pro se status, the Court interprets Plaintiff’s
objections liberally. However, even with the most liberal construction, Plaintiff’s
objections fail.
Plaintiff raises approximately a dozen objections to the R & R. The objections
may be grouped into the following categories: (1) the magistrate judge incorrectly ruled
6
on Plaintiff’s Eighth Amendment sexual assault claim; (2) the magistrate judge
incorrectly ruled on Plaintiff’s First Amendment retaliation claims; (3) the magistrate
judge incorrectly concluded that Defendants are entitled to qualified and absolute
immunity; (4) the dismissal of this case will adversely affect Plaintiff’s potential state law
claim; (5) the R & R is inconsistent with the Prison Rape Elimination Act; and (6) the R
& R reflects bias and failure to carefully examine the record. Below, Plaintiff’s
objections are addressed in detail.
1. Eighth Amendment Sexual Assault Claim
Plaintiff objects to the magistrate judge’s ruling on his Eighth Amendment claim
based on the alleged sexual assault, arguing that he has presented enough evidence to
substantiate the sexual assault claim. (Pl.’s Obj. [Doc. No. 82, at 1-5].) As noted above,
a party opposing a motion for summary judgment may not rest on mere allegations or
denials, but must set forth facts in the record showing that there is a genuine issue for
trial. Anderson, 477 U.S. at 256. Thus, the plaintiff “must substantiate allegations with
sufficient probative evidence that would permit a finding in the plaintiff’s favor.” Bacon
v. Hennepin Cnty. Med. Ctr., 550 F.3d 711, 716 (8th Cir. 2008) (quotations and citations
omitted).
Pursuant to Berryhill v. Schriro, “[t]o succeed on an Eighth Amendment claim
under this standard, the plaintiff must demonstrate (1) that the conditions were
objectively sufficiently serious or caused an objectively serious injury to the plaintiff, and
(2) that the defendants were deliberately indifferent, or acted with reckless disregard, to
inmate constitutional rights, health, or safety.” 137 F.3d 1073, 1076 (8th Cir. 1998). The
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Eighth Circuit Court of Appeals explained that “some actual injury must be shown and
the extent of the injury and pain suffered are relevant concerns in determining whether
the conduct amounts to cruel and unusual punishment.” Id. at 1077 (citing White v.
Holmes, 21 F.3d 277, 281 (8th Cir. 1994)). In Berryhill, the plaintiff alleged that civilian
maintenance workers grabbed his buttocks and caused him to suffer psychological
distress and asthma attacks. Id. at 1074-75. The Eighth Circuit held that this “brief
unwanted touch,” id., was an insufficient injury because “only the unnecessary and
wanton infliction of pain constitutes cruel and unusual punishment forbidden by the
Eighth Amendment,” Whitley v. Albers, 475 U.S. 312, 319 (1986) (quotations and
citation omitted).
For the purposes of Defendants’ Motion for Summary Judgment, the Court accepts
Plaintiff’s claim that Officer Kubat grabbed his genitalia during the pat-down. 2
Nonetheless, the Court agrees with the magistrate judge that this “incident of unwanted
touching” (R & R at 12, [Doc. No. 81]) is insufficient to meet the “objectively
sufficiently serious” standard mandated under Berryhill. Berryhill, 137 F.3d at 1076; see
also Watson v. Jones, 980 F.2d 1165 (8th Cir. 1992) (reversing grant of summary
judgment for defendant and holding that a material factual dispute existed as to whether
defendant sexually harassed plaintiffs almost daily for a period of two months). Plaintiff
cannot demonstrate that the unwelcome touch amounted to an unnecessary and wanton
2
Plaintiff contends that the magistrate judge did not assume that Officer Kubat
grabbed Plaintiff’s genitalia. (Pl.’s Obj. at 1-2 [Doc. No. 82].) However, Magistrate
Judge Noel clearly stated that he “accepts Alexander’s claim that Officer Kubat grabbed
his penis and testicles during the pat-down.” (R & R at 12 [Doc. No. 81].)
8
infliction of pain. 3 See Whitley, 475 U.S. at 319.
As to evidence of “actual injury,” Plaintiff requested to see a psychologist while
he was in the Steele County Jail. (Hill Aff., Ex. E at 10-11 [Doc. No. 63-2].) He reacted
aggressively and was “visibly upset” when he was informed that a psychologist was
unavailable. (R & R at 7 [Doc. No. 81].) Additionally, Plaintiff stated in his response to
interrogatories that he later “sought [psychological] treatment at Allina Clinic in
Faribault, MN” with “Dr. Kuele.” (Hill Aff., Ex. G at 22 [Doc. 63-2].) Noting Plaintiff’s
request to see a psychologist at the jail, the magistrate judge concluded that “the record
[was] void of any evidence showing that Alexander suffered from some form of actual
injury.” (R & R at 12 [Doc. No. 81].) In fact, Plaintiff refused to present evidence to
Magistrate Judge Noel to substantiate his claim of emotional trauma, asserting that he
would only detail his injuries by speaking to a jury or through publishing a forthcoming
book. (Hill Aff., Ex. H, Pl.’s Resp. to Interrogs. [Doc. No. 63].) While Plaintiff claims
that the magistrate judge ignored the severity of his emotional harm as a result of the
assault (Pl.’s Obj. at 3 [Doc. No. 82]), the Court rejects this argument. Even coupling
Plaintiff’s request to speak with a psychologist with (1) his aggressive reaction, and (2)
any alleged additional psychological treatment that he may have subsequently received,
3
Plaintiff also argues that the Court should take into account additional abuse that
“spans a 10 year period,” not alleged in his Complaint, when determining the sufficiency
of his Eighth Amendment claim. (Pl.’s Obj. at 6 [Doc. No. 82].) The Court disagrees.
Insofar as Plaintiff asserts that the alleged additional abuse strengthens his sexual assault
claim, Plaintiff’s argument fails because he does not produce corroborating evidence to
substantiate his bare allegation. Insofar as Plaintiff contends that the alleged additional
abuse constitutes the basis for a separate Eighth Amendment claim, Plaintiff’s argument
fails because he did not raise this allegation in his Complaint. (See Compl. [Doc. No. 11].)
9
the evidence is insufficient to overcome summary judgment. The Court agrees with the
magistrate judge that Plaintiff failed to present adequate evidence of “actual injury.”
2. First Amendment Retaliation Claims
Plaintiff contends that the magistrate judge failed to sufficiently consider his First
Amendment retaliation claims. Plaintiff alleges that Defendants retaliated against him
because he filed a sexual assault grievance against Officer Kubat. (See generally Compl.
[Doc. No. 1-1].) In order to establish a First Amendment retaliation claim under 42
U.S.C. § 1983, a plaintiff must show that (1) he was “engaged in constitutionally
protected activity,” (2) a government official’s “adverse action caused [him] to suffer an
injury which would ‘chill a person of ordinary firmness from continuing…in that
activity,’” and (3) “the adverse action was motivated in part by…exercise of h[is]
constitutional rights.” Naucke v. City of Park Hills, 284 F.3d 923, 927-28 (8th Cir. 2002)
(quoting Carroll v. Pfeffer, 262 F.3d 847, 850 (8th Cir. 2001)). In this case, Plaintiff
must show that the alleged retaliatory action was sufficiently severe to “chill an inmate of
ordinary firmness from filing grievances.” Lewis v. Jacks, 486 F.3d 1025, 1029 (8th Cir.
2007) (citing Dixon v. Brown, 28 F.3d 379, 379 (8th Cir. 1994)). Magistrate Judge Noel
concluded that no genuine issues of fact exist pertaining to Plaintiff’s First Amendment
retaliation claims and Defendants are entitled to judgment as a matter of law. (R & R at
17-20 [Doc. No. 81].)
Plaintiff objects to the magistrate judge’s determination that Defendants did not
retaliate against Plaintiff by placing him in “lockdown” after he reported the alleged
sexual assault. (Pl.’s Obj. at 2 [Doc. No. 82].) Plaintiff must show that the transfer
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would not have occurred but for the alleged retaliatory purposes. See Ponchik v. Bogan,
929 F.3d 419 420 (8th Cir. 1991) (affirming summary judgment where district court
applied the “but for” test to an alleged retaliatory transfer). As the Eighth Circuit
explained in Hartsfield v. Nichols, “a defendant may successfully defend a retaliatory
discipline claim by showing ‘some evidence’ the inmate actually committed a rule
violation.” 511 F.3d 826, 829 (8th Cir. 2008) (citing Goff v. Burton, 7 F.3d 734, 738-39
(8th Cir. 1993). Here, Magistrate Judge Noel correctly concluded that the “lockdown”
disciplinary charge was imposed for an “actual violation of prisoner rules or regulations.”
Goff, 7 F.3d at 738. Plaintiff was disciplined for making threatening comments to
Officer Kubat during the pat-down incident. (Hill Aff., Ex. E at 2-3 [Doc. No. 63-2];
Hearing Findings at 1-2 [Doc. No. 52-1].) In fact, during Plaintiff’s DOC disciplinary
hearing, he admitted to making such comments. (Alexander Aff., Ex. 26, “Report Written
by Sgt. Olson-Cowden” [Doc. No. 52-3].) Therefore, the magistrate judge properly
concluded that “Alexander fails to raise a genuine issue of material fact regarding his
transfer to segregation…providing no evidence that but for the alleged retaliatory
purposes, he would not have been transferred.” 4 (R & R at 19 [Doc. No. 81].)
Plaintiff also contends that the magistrate judge ignored evidence of retaliation by
Sergeant Olson-Cowden and Officer Krohn. (Pl.’s Obj. at 4-5 [Doc. No. 82].) He alleges
4
Plaintiff claims that the “lockdown” was structured to circumvent his right to a
due process hearing. (Pl.’s Obj. at 4 [Doc. No. 82].) However, he fails to present any
evidence to support this claim. Furthermore, the evidence demonstrates that Plaintiff was
entitled to and had a DOC disciplinary hearing in which he discussed the alleged sexual
assault and admitted to behavioral rule violations, which led to the “lockdown.” (Hearing
Findings at 1-2 [Doc. No. 52-1]).
11
that Sergeant Olson-Cowden came to Plaintiff’s door three times while he was in
“lockdown,” and attempted to give Plaintiff “legal papers” or a divorce petition from his
wife. 5 (Id.) The magistrate judge correctly determined that Plaintiff failed to present
evidence demonstrating that this conduct was done in retaliation by Sergeant OlsonCowden. (R & R at 20 [Doc. No. 81].) In his Objections, Plaintiff further states that the
evidence demonstrates that Officer Krohn smashed Plaintiff’s arms against the window
of his cell while he was delivering Plaintiff’s lunch. (Id. at 5.) He also asserts that
Officer Krohn mopped the window behind Plaintiff’s head to taunt him. 6 (Id.) Plaintiff
must provide evidence other than his “naked assertions” to demonstrate a genuine issue
of material fact. Moody v. St. Charles Cnty, 23 F.3d 1410, 1412 (8th Cir. 1994).
Magistrate Judge Noel correctly determined that “Alexander provided no evidence
pertaining to these events beyond his own assertion that they took place and has offered
no evidence in support of his contention that the events were done in retaliation.” (R & R
at 20 [Doc. No. 81].)
Plaintiff also objects to the magistrate judge’s finding that Jail Administrator
Schember properly investigated Plaintiff’s sexual assault claim. (Pl.’s Obj. at 3-4 [Doc.
5
Additionally, Plaintiff claims that video capturing interactions between him and
Sergeant Olson-Cowden has been edited to misrepresent exchanges between the two.
(Id.) Other than his bare assertion, Plaintiff failed to present evidence to support his
claim that video footage was edited. Furthermore, Plaintiff did not submit this footage as
evidence to the Court.
6
Plaintiff argues that the magistrate judge incorrectly interpreted video evidence of
Officer Krohn mopping up a spilled food tray in Plaintiff’s cell. (Pl.’s Obj. at 5 [Doc.
No. 82].) However, Plaintiff did not submit this video footage as evidence to the Court.
Even if he had submitted such evidence, it would not be indicative of retaliation by
Officer Krohn.
12
No. 82].) Plaintiff’s concerns about the investigation are two-fold. First, he contends
that Defendants delayed providing the video of the pat-down to him. (Id. at 4.) Second,
Plaintiff asserts that Steele County Sheriff Officer Gary Okins, the individual who
completed the investigation and report (Alexander Aff., Ex. 9 [Doc. No. 48-2, 48-3]), was
not a suitably neutral outside investigator. (Pl.’s Obj. at 4 [Doc. No. 82].)
As to Plaintiff’s objection concerning discovery, any delay was irrelevant to the
magistrate judge’s finding that the pat-down incident was properly investigated.
Regarding the outside investigator, Magistrate Judge Noel found that the investigation
was completed “in accordance with sheriff office procedure.” (R & R at 4 [Doc. No.
81].) The Steele County Sheriff’s Office is, in fact, a separate entity from the Steele
County Detention Center and conducts external investigations of inmate complaints.
(See Alexander Aff., Ex. 9 [Doc. No. 48-2, 48-3].) Therefore, Plaintiff’s objection to the
validity of the investigation also fails.
Although asserted in support of Plaintiff’s Eighth Amendment claim, Plaintiff
argues that the Court should take into account the alleged retaliatory acts by detention
center officials when determining whether he asserts a sufficient Eighth Amendment
claim. (Pl.’s Obj. at 5-6 [Doc. No. 82].) To the extent that Plaintiff attempts to bolster
his Eighth Amendment sexual assault claim by merging it with his First Amendment
retaliation claims, it fails for the reasons set forth above. Plaintiff cannot merge these
two claims. The Court agrees with the magistrate judge that Plaintiff’s evidence of actual
injury is insufficient to warrant an Eighth Amendment claim.
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3. Qualified and Absolute Immunity
Plaintiff objects to the magistrate judge’s findings about Defendants’ “qualified”
and “absolute” immunity. (Pl.’s Obj. at 6 [Doc. No. 82].) Plaintiff asserts that the
magistrate judge granted qualified immunity to Defendants. (Id.) However, as
Defendants properly note in their Response, Magistrate Judge Noel did not grant such
immunity. (Defs.’ Resp. to Pl.’s Obj. at 5 [Doc. No. 83].) The magistrate judge did not
complete the qualified immunity analysis because he concluded that the relevant facts did
not substantiate Eighth Amendment or First Amendment constitutional violations. (R &
R at 22 [Doc. No. 81]; see Pearson v. Callahan, 555 US 223, 231-32 (2009) (explaining
that in resolving government officials’ qualified immunity claims, courts must determine
whether facts alleged by a plaintiff make out a violation of a constitutional right).)
As to absolute immunity, Plaintiff objects to Magistrate Judge Noel’s conclusion
that Plaintiff’s official capacity claims against Defendants fail. (Pl.’s Obj. at 6 [Doc. No.
82].) For official capacity liability, “the government entity itself must be the ‘moving
force’ behind the constitutional violation.” Polk County v. Dodson, 454 US 312, 326
(1981) (citing Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S. 658, 694
(1981)). However, Plaintiff fails to allege that any of Defendants’ policies violated his
constitutional rights. Therefore, the magistrate judge correctly determined that Plaintiff’s
official capacity claims fail. (R & R at 23 [Doc. No. 81].)
4. Dismissal with Prejudice
Plaintiff objects to the magistrate judge’s recommendation to dismiss his case with
prejudice. (Pl.’s Obj. at 6 [Doc. No. 82].) Plaintiff misunderstands how dismissing this
14
federal case will affect a potential state law conversion claim. (See R & R at 21 [Doc.
No. 81] (“Because an adequate post-deprivation remedy of conversion is available to
Alexander, the seizure of property claim fails as a matter of law.”).) Dismissal of
Plaintiff’s § 1983 claims has no bearing on the availability of the state law remedy for
conversion. Thus, this objection lacks merit.
5. Prison Rape Elimination Act of 2003
Plaintiff further objects to the R & R because he contends that Magistrate Judge
Noel’s recommendations are inconsistent with the Prison Rape Elimination Act (PREA)
of 2003. (Pl.’s Obj. at 4, 7 [Doc. No. 82]; see 42 U.S.C. § 15601 et seq.) However, the
PREA “does not create a right of action that is privately enforceable by an individual
civil litigant.” LeMasters v. Fabian, 2009 WL 1405176 (D. Minn. 2009). Therefore,
Plaintiff fails to state an actionable claim for relief based on this statute.
6. Bias Reflected in R & R
Finally, Plaintiff objects to the R & R on the grounds of bias and failure to
carefully examine the record. (Pl.’s Obj. at 1 [Doc. No. 82].) Plaintiff’s only basis for
alleging bias is that the magistrate judge has denied Plaintiff’s past motions and granted
Defendants’ motions in full or in part. (Id.) Magistrate Judge Noel’s liberal construction
of Plaintiff’s pleadings, his thorough recitation of facts, and complete discussion of each
legal claim evidences his unbiased review and high level of care in examining the record.
(See generally R & R [Doc. No. 81].) Therefore, Plaintiff’s allegations of bias are
meritless.
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IV.
ORDER
The Court OVERRULES Plaintiff’s Objections [Doc. No. 82] and ADOPTS the
Magistrate Judge’s July 31, 2014, Report and Recommendation [Doc. No. 81].
Accordingly, IT IS HEREBY ORDERED that:
1. The Magistrate Judge’s Report and Recommendation [Doc. No. 81] is
ADOPTED;
2. Plaintiff’s Motion for Summary Judgment and/or Sanctions [Doc. No. 46] is
DENIED;
3. Plaintiff’s Motion for Entry of Judgment [Doc. No. 56] is DENIED;
4. Defendants’ Motion for Summary Judgment [Doc. No. 60] is GRANTED
5. This Case is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: September 4, 2014
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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