Sorenson v. Minnesota Department of Human Services et al

Filing 75

ORDER adopting in part and modifying in part 59 Report and Recommendation; denying 51 Motion for Default Judgment; referring 57 Motion for Partial Default Judgment to Magistrate Judge Brisbois for further review; Defendant Angelique Brewer-Ottom WILL REMAIN A PARTY in this action (Written Opinion). Signed by Judge Ann D. Montgomery on 03/26/2014. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Eric Michael Sorenson,
Plaintiff,
ORDER
Civ. No. 13-2958 ADM/LIB

v.
Minnesota Department of Human
Services, Minnesota Sex Offender
Program, Lucinda Jesson, Nancy
Johnston, Jannine Herbert, James
Berg, Kevin Moser, Tom Lundquist,
Tara Osborne, Angelique BrewerOttom, Rob Rose, Jennifer Abson,
Al Jennings, Scott Sutton, David
Paulson, James Michael Olson, Mary
Skalko, Troy Basaraba, Joel Brown,
Jeremy Hammond, et al.,

Defendants.
______________________________________________________________________________
Eric Michael Sorenson, pro se.
______________________________________________________________________________
This matter is before the undersigned United States District Judge for a ruling on Eric
Michael Sorenson’s Objection [Docket No. 63] to Magistrate Judge Leo I. Brisbois’ March 4,
2014 Report and Recommendation [Docket No. 59] (“R&R”). In his R&R, Judge Brisbois
recommends denying Sorenson’s Motions for Partial Default Judgment [Docket Nos. 51 and 57]
and dismissing without prejudice Defendant Angelique Brewer-Ottom. After a thorough de
novo review of the record and for the reasons stated below, Sorenson’s Objection is overruled in
part and sustained in part.
Plaintiff Sorenson, a patient in the Minnesota Sex Offender Program (“MSOP”), has
initiated this action against several agenicies and state employees (“State Defendants”),

including Angelique Brewer-Ottom. In his same Complaint [Docket No. 1], Sorenson has also
sued two fellow MSOP patients, Joel Brown and Jeremy Hammond. Sorenson brought motions
for partial default judgment against all Defendants. Pursuant to Rule 55(b)(2) of the Federal
Rules of Civil Procedure, Sorenson does not object to denial of his motions as they pertain to the
State Defendants.
Sorenson does, however, object to the denial of default judgment as it pertains to
Defendants Brown and Hammond. Sorenson’s motion is premature. The Federal Rules provide
that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead
or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the
party’s default.” Fed. R. Civ. P. 55(a). After obtaining an entry of default, a party may then
seek default judgment by application to the court. Fed. R. Civ. P. 55(b)(2). Therefore,
procedurally, Plaintiff’s motions under Rule 55(b)(2) would usually fail because he did not first
obtain the necessary entries of default under Rule 55(a).
On March 25, 2014, the Clerk of Court filed an Entry of Default [Docket No. 73] as to
Joel Brown and Jeremy Hammond. Therefore, although Sorenson’s motion was premature, his
motion for default judgment as to Joel Brown and Jeremy Hammond will not be denied. The
matter will be referred to Judge Brisbois for further proceedings.
Sorenson also objects to the dismissal without prejudice of Defendant Brewer-Ottom.
Without giving a plaintiff notice and opportunity to respond, dismissing a complaint sua sponte
for failure to state a claim is not “per se reversible error” where it is patently obvious the plaintiff
could not prevail based on the facts alleged in the complaint. Smith v. Boyd, 945 F.2d 1041,
1042-43 (8th Cir. 1991). Judge Brisbois dismissed Brewer-Ottom as a Defendant because

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Sorenson’s Complaint does not include any allegations against Brewer-Ottom. However, the
State Defendants, including Brewer-Ottom, have a pending Motion to Dismiss [Docket No. 28].
Additionally, Judge Brisbois’ March 18, 2014 Order [Docket No. 69], allows Sorenson leave to
file a supplemental complaint and an extension of time to file a response to Defendants’ motion
to dismiss. Therefore, Brewer-Ottom will not be dismissed at this time. The pending motions
may resolve the matter more definitively.
Based upon the Report and Recommendation of United States Magistrate Judge Leo I.
Brisbois, and after an independent review of the files, records and proceedings in the above-titled
matter, IT IS ORDERED:
1.

Plaintiff Eric Michael Sorenson’s Objection [Docket No. 63] to Magistrate Judge
Leo I. Brisbois’ March 4, 2014 Report and Recommendation [Docket No. 59] is
OVERRULED IN PART, and SUSTAINED IN PART,

2.

The Report and Recommendation is ADOPTED IN PART; and MODIFIED IN
PART,

3.

Sorenson’s Motion for Partial Default Judgment [Docket No. 51] is DENIED;

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4.

Sorenson’s Motion for Partial Default Judgment [Docket No. 57] is REFERRED
to Judge Brisbois for further review; and,

5.

Defendant Angelique Brewer-Ottom WILL REMAIN A PARTY in this action.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: March 26, 2014.

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