Green v. Lake et al

Filing 104

MEMORANDUM OPINION AND ORDER adopting in part and modifying in part 94 Report and Recommendation; granting [22, 35, 53, 66] Defendants' Motions to Dismiss; granting 96 Plaintiff's Motion to Accept Late Submission; Defendants' Objection 95 to the R&R is SUSTAINED; Plaintiff's Objection 97 to the R&R is OVERRULED; the Amended Complaint 14 is DISMISSED WITH PREJUDICE (Written Opinion). Signed by Judge Ann D. Montgomery on 3/25/2019. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Anthony C. Green,
Plaintiff,
v.

MEMORADUM OPINION
AND ORDER
Civil No. 14-1056 ADM/SER

Kelly Lake, Carlton County Sheriff;
Kevin Moser, MSOP Facility Director;
Steven Sayovitz, MSOP A-Team Supervisor;
Ann Zimmerman, MSOP Administrator;
Nicole Marvel, MSOP A-Team Supervisor;
Greg Swenson, Security Counselor;
Amanda Schaller, Security Counselor;
Elizabeth Barbo, MSOP-Former Assistant Clinical Director;
Anthony Bastien, Carlton County Deputy Sheriff; and
Jesse Peterson, Carlton County Deputy Sheriff;
in their individual and official capacities
Defendants.
______________________________________________________________________________
Anthony C. Green, pro se.
Susan M. Tindal, Esq., Iverson Reuvers Condon, Bloomington, MN, on behalf of Defendants
Kelly Lake, Jesse Peterson, and Anthony Bastien.
James H. Clark, III, Esq., Assistant Minnesota Attorney General, Minnesota Attorney General’s
Office, St. Paul, MN, on behalf of Defendants Kevin Moser, Steven Sayovitz, Ann Zimmerman,
Nicole Marvel, and Greg Swenson.
Daniel P. Kurtz, Esq., League of Minnesota Cities, St. Paul, MN, on behalf of Defendant Bryce
Bogenholm.
______________________________________________________________________________
I. INTRODUCTION
This matter is before the undersigned United States District Judge for a ruling on
Defendants Kelly Lake, Jesse Peterson, and Anthony Bastien’s (the “Carlton County
Defendants”) Objection [Docket No. 95] to Magistrate Judge Steven E. Rau’s January 30, 2019

Report and Recommendation [Docket No. 94] (“R&R”). Also before the Court is Plaintiff
Anthony C. Green’s (“Green”) Motion to Accept Late Submission [Docket No. 96] and Green’s
Objection [Docket No. 97] to the R&R.
In the R&R, Judge Rau recommends granting the two motions to dismiss filed by
Defendants Kevin Moser, Steven Sayovitz, Ann Zimmerman, Nicole Marvel, and Greg Swanson
(collectively, the “MSOP Defendants”) in their official and individual capacities [Docket Nos.
22, 53]; granting the motion to dismiss filed by Defendant Bryce Bogenholm1 [Docket No. 35];
and granting the motion to dismiss or for summary judgment filed by the Carlton County
Defendants [Docket No. 66]. The R&R also recommends dismissing Green’s Amended
Complaint [Docket No. 14] with prejudice. For the reasons stated below, the Carlton County
Defendants’ Objection is sustained, Green’s Motion to Accept Late Submission is granted, and
Green’s Objection is overruled.
II. BACKGROUND
The background is set forth in the R&R and is incorporated by reference. Briefly, Green
is a civilly committed detainee at the Minnesota Sex Offender Program in Moose Lake,
Minnesota (“MSOP”). Am. Compl. [Docket No. 14] ¶ 7. The MSOP Defendants are all MSOP
employees. Id. ¶ 8. The Carlton County Defendants are employed with the Carlton County
Sheriff’s Office. Id. Defendant Bryce Bogenholm is the Moose Lake Police Chief. Id.
Green filed this 42 U.S.C. § 1983 lawsuit on April 11, 2014. Green alleges that
Defendants violated his rights under the Fourth and Fourteenth Amendments to the U.S.

1

The caption of the First Amended Complaint [Docket No. 14] does not include Bryce
Bogenholm as a named defendant, but Paragraph 8(j) of the First Amended Complaint lists
“Bryce Bogenhol [sic]” as a defendant in this case.
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Constitution. The allegations as taken from Green’s Amended Complaint are as follows.
On September 28, 2010, the MSOP Defendants handcuffed Green and secured him in an
observation cell in MSOP’s High Security Area (“HSA”). Am. Compl. ¶ 11. Pursuant to MSOP
policy, Green was required to submit to an unclothed visual body strip search (“UVBSS”) upon
being placed in HSA. Id. ¶ 43. If a detainee does not consent to the UVBSS, MSOP’s policy
requires staff to ask the detainee every 30 minutes for consent to the search. Id. ¶ 44. If the
detainee still refuses to consent after four hours, MSOP staff may obtain authorization to perform
a non-consenting search that includes cutting the detainee’s clothing off with a scissors. Id.
Green refused to consent to a UVBSS. Id. ¶ 11. After four hours, MSOP staff cut and removed
Green’s clothing to allow a search for contraband. Id.
On March 24, 2011, MSOP employees attempted to prevent Green from entering the
MSOP dining room. Id. ¶ 18. MSOP Defendant Greg Swenson (“Swenson”) attacked Green
from behind and shoved him from behind into another MSOP staff member. Id. ¶¶ 18–19.
During the altercation, MSOP Defendant Nicole Marvel (“Marvel”) twisted Green’s handcuffs
while trying to remove his shoes and “Do Rag” and “did damage to [Green’s] wrists.” Id. ¶ 23.
The same day as the March 24 altercation, Green was again placed in HSA. Id. ¶ 12. This time,
he consented to the UVBSS search. Id.
On June 13, 2012, Carlton County Defendants Anthony Bastien (“Deputy Bastien”) and
Jesse Peterson (“Deputy Peterson”) served Green with an arrest warrant at the MSOP facility.
Id. ¶ 26. The deputies were escorting Green in handcuffs from the facility when MSOP
Defendant Steve Sayovitz (“Sayovitz”) informed MSOP Defendant Elizabeth Barbo (“Barbo”)
that Sayovitz intended to be granted approval for a UVBSS of Green. Id. ¶¶ 26, 28. Deputy

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Bastien told Sayovitz that he did not agree with the UVBSS being conducted while Green was in
Carlton County’s custody and that the UVBSS should have been performed prior to the deputies’
arrival. Id. ¶¶ 29, 32, 34. While Deputy Bastien was advising his supervisor of his concerns,
Deputy Peterson removed the handcuffs from Green. Id. ¶¶ 32, 34. MSOP Defendants then
placed MSOP’s handcuffs on Green and, without Deputy Bastien’s knowledge, conducted a
UVBSS on Green in front of a female staff member. Id. ¶ 27, 32.
In addition to these incidents, Green alleges that MSOP’s placement policy authorized
MSOP staff to place Green in HSA for extended periods exceeding 24 hours without due process
protections. Id. ¶ 13.
Green asserts a claim against the MSOP Defendants for violation of his procedural and
substantive due process rights under the 14th Amendment (Count I), a claim against all
Defendants for illegal search and seizure in violation of the Fourth Amendment (Count II), and a
claim against all Defendants for excessive force in violation of the Fourth Amendment (Count
III). Green also alleges that MSOP’s client search and protective isolation policies are
unconstitutional. Am. Compl. ¶¶ 50, 57.
The R&R recommends dismissing all of Green’s claims for failure to state a plausible
claim for relief. R&R at 12–21.
III. DISCUSSION
A. Standard of Review
In reviewing a magistrate judge’s report and recommendation, the district court “shall
make a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also D. Minn.

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L.R. 72.2(b). A district judge “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id.
B. Carlton County Defendants’ Objection
The Carlton County Defendants ask the Court to adopt the R&R with one modification.
In addressing Green’s claims that he was subjected to an unlawful UVBSS on June 13, 2012, the
R&R states, “Green does not allege that the search itself was done by a female staff member; he
admits Peterson, the male Deputy Carlton County Sheriff performed the search.” R&R at 17.
The Carlton County Defendants argue that the record establishes Deputy Peterson did not
conduct the search and did not allow staff from the MSOP to perform the search while Carlton
County’s handcuffs were on Green. The Carlton County Defendants thus request that this Court
remove any reference to Deputy Peterson conducting the search.
The Court agrees with the Carlton County Defendants that the Amended Complaint and
the record lack any indication that Deputy Peterson conducted the search. Paragraph 27 of the
Amended Complaint alleges that staff from MSOP, rather than Deputy Peterson, performed the
alleged search:
Defendant Peterson assisted the strip search by removing [Carlton County’s]
handcuffs and allowing MSOP Defendants to place their handcuffs on Plaintiff and
conducted the forced unclothed full body cavity strip search in front of female staff
and an MSOP nurse. MSOP Defendants held Plaintiff down and forcibly cut his
clothes off, humiliating him in the presence of female staff.
Further, Green clarifies in his opposition to the Carlton County Defendants’ Motion to Dismiss
that the “Carlton County [Defendants] did not participate in the strip search,” and that “they
called their supervisor because they disagreed with MSOP Defendants conducting a strip
search.” See Pl.’s Reply Mem. Law Resp. Carlton County Defs.’ Reply [Docket No. 78] at 2.

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Thus, the findings in the R&R are modified to remove any reference to Deputy Peterson
conducting the search.
C. Green’s Motion to Accept Late Submission
Green asks the Court to accept his tardily filed Objection to the R&R. The R&R was
entered on Wednesday, January 30, 2019. Green states that he received the R&R in the mail on
Monday, February 4, 2019. Under Federal Rules of Civil Procedure 6(a)(1)(C) and 72(b)(2),
Green had until February 19, 2019 to mail his Objection. Green did not mail his Objection until
February 20, 2019. Defendants do not argue that they were prejudiced by the one-day delay in
filing. The Court grants the motion to accept Green’s tardily filed Objection.
D. Green’s Objection
Green objects to the portions of the R&R that conclude he has failed to state a claim for
excessive force, procedural due process, and substantive due process. Obj. at 5–17. Green also
argues that the R&R incorrectly concludes that Defendants are entitled to qualified immunity.
Id. at 19–20. Green alternatively requests leave to amend the Amended Complaint to cure any
deficiencies. Id. at 4–5, 17–19.
1. Excessive Force Claims
Green argues that the R&R erroneously concluded the Amended Complaint fails to state
a claim for excessive force. Green contends that the case must proceed so that the record can be
developed regarding whether Defendants’ actions were objectively reasonable.
Excessive force claims brought by civilly committed individuals are analyzed under the
same standard as pre-trial detainees. Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001). To
bring a claim for excessive force under § 1983, “a pretrial detainee must show . . . that the force

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purposely or knowingly used against him was objectively unreasonable.” Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2473 (2015); Ryan v. Armstrong, 850 F.3d 419, 427 (8th Cir.
2017). Whether the force used was objectively unreasonable “turns on the facts and
circumstances of each particular case.” Kingsley, 135 S. Ct. at 2473 (quotations omitted).
Relevant factors include the relationship between the need for force and the amount of force
used, the extent of the plaintiff’s injury, efforts by the officer to limit the amount of force, the
severity of the security problem, the threat reasonably perceived by the officer, and whether the
plaintiff was resisting. Id. “A court must also account for the legitimate interests that stem from
the government’s need to manage the facility in which the individual is detained, appropriately
deferring to policies and practices that in the judgment of jail officials are needed to preserve
internal order and discipline and to maintain institutional security.” Id. (internal quotations and
alterations omitted).
The reasonableness of the force used “must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v.
Connor, 490 U.S. 386, 396 (1989). “Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus
of reasonableness must embody allowance for the fact that . . . officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about
the amount of force that is necessary in a particular situation.” Id. at 396–97 (internal citation
omitted). Because § 1983 liability is personal, each defendant’s conduct must be independently
assessed. Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir. 2006).
The Amended Complaint alleges that Defendants Swenson and Marvel used excessive

7

force on Green during the March 2011 altercation when Swenson shoved Green from behind into
another MSOP staff member, and Marvel twisted Green’s handcuffs while trying to remove his
Do Rag and shoes. Am. Compl. ¶¶ 18–20, 23. The R&R concluded that these actions did not
rise to the level of an excessive force claim because Green did not allege painful or lasting
injuries from the actions. R&R at 12–13.
Although Green’s failure to allege more than de minimis injury is not dispositive,2 it
suggests that the force used by Swenson and Marvel was de minimis. See Chambers v.
Pennycook, 641 F.3d 898, 907 (8th Cir. 2011) (“A de minimis use of force is insufficient to
support a claim, and it may well be that most plaintiffs showing only de minimis injury can show
only a corresponding de minimis use of force.”) (internal citation omitted). Additionally, the
facts alleged do not suggest that the amount of force used was unreasonable in relation to the
force required. Swenson shoved Green from behind into another person while attempting to
deny Green access to the dining hall. Marvel twisted Green’s handcuffs, but did so while trying
to maintain security by removing Green’s shoes and head wear. Thus the allegations in the
Amended Complaint, assumed as true, do not establish that the particular force used by Swenson
and Marvel under the circumstances was objectively unreasonable.
Even if Green could state a plausible claim against Swenson or Marvel for excessive

2

In June 2011, the Eighth Circuit Court of Appeals clarified that “there is no uniform
requirement that a plaintiff show more than de minimis injury to establish an application of
excessive force.” Chambers v. Pennycook, 641 F.3d 898, 907 (8th Cir. 2011). The Chambers
Court reasoned that “[t]he degree of injury should not be dispositive, because the nature of the
force applied cannot be correlated perfectly with the type of injury inflicted. Some plaintiffs will
be thicker-skinned than others, and the same application of force will have different effects on
different people.” Id. at 906. However, the degree of injury is relevant to show the amount and
type of force used. Id.
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force, they would be entitled to qualified immunity. “An officer enjoys qualified immunity and
is not liable for excessive force unless he has violated a clearly established right, such that it
would have been clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Kingsley, 135 S. Ct. at 2474 (quotations omitted). Prior to the Eighth Circuit’s
June 2011 decision in Chambers v. Pennycook, “[i]t was not clearly established . . . that an
officer violated the rights of an arrestee [or detainee] by applying force that caused only de
minimis injury.” 641 F.3d at 908. The force used by Swanson did not cause any injury, and the
force used by Marvel caused only de minimis injury. Thus, at the time of the March 2011
incident alleged by Green, it would not have been clear to a reasonable officer that the force used
by Swanson and Marvel was unlawful.
Green also appears to allege an excessive force claim against Defendant Sayovitz based
on Sayovitz’s informing MSOP Defendant Barbo on June 13, 2012 that Sayovitz intended to be
given approval to conduct a UVBSS on Green. Am. Compl. ¶ 28. This allegation does not state
a claim for excessive force because “[v]erbal threats are not constitutional violations cognizable
under § 1983.” Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985).
2. Unreasonable Search and Seizure Claims
Green also objects to the R&R’s recommended dismissal of his unreasonable search and
seizure claims. Green contends that the facts must be developed to determine whether the
unclothed visual searches were conducted in a reasonable manner, and whether it was reasonable
to confine Green to HSA and handcuff him for four hours while in HSA.
The Court agrees with the conclusion in the R&R that the facts alleged in the Amended
Complaint do not establish that the searches and seizures were unreasonable. MSOP’s policy

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requires unclothed body searches when a detainee enters a new security area within MSOP or
leaves the MSOP facility. Am. Compl. ¶ 43. This policy advances the interests of institutional
security and public safety by ensuring that a detainee is not smuggling drugs, weapons, or other
contraband. See Beaulieu v. Ludeman, 690 F.3d 1017, 1030 (8th Cir. 2012) (“[T]he MSOP’s
policy of performing unclothed body searches of patients before they leave the secure perimeter
is not unreasonable.”); Story v. Foote, 782 F.3d 968, 971 (8th Cir. 2015) (stating that “detention
facilities are fraught with serious security dangers,” and “correctional institutions have a strong
interest in preventing and deterring the smuggling of money, drugs, weapons, and other
contraband”).
Green has not alleged any facts to suggest that the searches were conducted
unreasonably. Although MSOP staff cut off his clothes with a scissors when performing the
September 2010 and June 2012 searches, the actions were reasonable and appropriate because
Green refused to comply with the searches. Am. Compl. ¶¶ 11, 34. Additionally, although the
June 2012 search was allegedly conducted in front of female staff, this allegation does not render
the search unreasonable. See Story, 782 F.3d at 972 (upholding reasonableness of body cavity
search that may have been viewed by a female correctional officer through a security camera).3
Green also fails to alleged facts suggesting that his placement in HSA or remaining in
handcuffs for four hours amounted to unreasonable seizures. The decision to place a civilly
3

To the extent that Green alleges a claim against the Carlton County Defendants for
failure to prevent the June 2012 search, the claim fails because the search itself was
constitutional. See Anderson v. City of Hopkins, 805 F. Supp. 2d 712, 721 (D. Minn. 2011)
(“[A] claim against an officer under § 1983 for failure to intervene or prevent harm necessarily
assumes another officer violated plaintiff’s constitutional rights.”). Further, the Carlton County
Defendants lacked the means to prevent the search from occurring because the search was
performed on a MSOP detainee in an MSOP facility by MSOP staff pursuant to MSOP policy.
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committed individual in HSA is presumptively valid if made by a professional. Youngberg v.
Romeo, 457 U.S. 307, 323 (1982). “[L]iability may be imposed only when the decision by the
professional is such a substantial departure from accepted professional judgment, practice, or
standards as to demonstrate that the person responsible actually did not base the decision on such
a judgment.” Id. Green alleges no facts to show that his confinement in HSA was a departure
from accepted practice or was not based on professional judgment. Thus, his confinement in
HSA was not an unreasonable seizure.
Green’s allegation that he was handcuffed for four hours on September 28, 2010 also
does not amount to an unreasonable seizure. During this time, MSOP employees were waiting
for Green to consent to a UVBSS. Am. Compl. ¶ 44. While Green refused to submit to a
UVBSS, it was reasonable for MSOP staff to keep him handcuffed until he could be examined
for weapons or other contraband.
To the extent that Green alleges an unlawful seizure claim against the Carlton County
Defendants based on their arrest of Green on June 13, 2012, this claim fails because the
Amended Complaint states that the Carlton County Defendants served Green with an arrest
warrant. Am. Compl. ¶ 13. “An arrest executed pursuant to a facially valid warrant generally
does not give rise to a cause of action under 42 U.S.C. § 1983 against the arresting officer.” Fair
v. Fulbright, 844 F.2d 567, 569 (8th Cir. 1988).
3. Procedural Due Process Claims
Green next objects to the R&R’s recommended dismissal of his procedural due process
claims. Green argues that his confinement in HSA for more than 24 hours and being handcuffed
for four hours implicate protected liberty interests.

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“To set forth a procedural due process violation, a plaintiff, first, must establish that his
protected liberty or property interest is at stake. Second, the plaintiff must prove that the
defendant deprived him of such an interest without due process of law.” Schmidt v. Des Moines
Pub. Sch., 655 F.3d 811, 817 (8th Cir. 2011).
In determining whether an official action has deprived a confined person of a protected
liberty interest, a court must inquire whether the official action imposed an “atypical and
significant hardship on the [confined person] in relation to the ordinary incidents of [confined]
life.” Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (quoting Sandin v. Conner, 515 U.S. 472,
484 (1995)). Civilly committed persons are entitled to “more considerate treatment and
conditions of confinement” than prisoners, but a civilly committed person’s liberty interests are
“considerably less than those held by members of free society.” Senty-Haugen v. Goodno, 462
F.3d 876, 886 (8th Cir. 2006). Green’s placement in HSA for more than 24 hours and being
handcuffed for four hours did not impose a significant and unusual hardship in relation to the
ordinary incidents of life at a secured facility such as MSOP.
Additionally, even if Green had sufficiently alleged a that he was deprived of a protected
liberty interest, he does not allege any facts to show that he received less process than was due.
For example, he does not allege that he invoked MSOP’s grievance procedure to challenge his
HSA placement. See Am. Compl. ¶ 45 (outlining MSOP’s grievance procedure for challenging
placement in HSA).
4. Substantive Due Process Claims
Green also objects to the R&R’s recommendation that his substantive due process claims
be dismissed. To plead a claim for substantive due process, a plaintiff must allege facts showing

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the defendant’s actions were “conscious shocking” and violated a “fundamental liberty interest.”
See Karsjens v. Piper, 845 F.3d 394, 408 (8th Cir. 2017) (specifying standard for substantive due
process claim). The R&R correctly applied this standard and concluded that Green has not
alleged conduct by Defendants that shocked the conscience.
5. Constitutional Challenge to MSOP Policies
The R&R recommends dismissing with prejudice Green’s claim that MSOP’s UVBSS
policy is unconstitutional. Green requests that the R&R be modified to dismiss the claim
without prejudice so that he may have an opportunity to cure the deficiencies in the Amended
Complaint. This request is denied because Green does not specify what additions or corrections
he would or could make that would cure the deficiencies.
6. Qualified Immunity
Green generically argues that Defendants are not entitled to qualified immunity because
he has alleged facts supporting his claims that Defendants’ conduct violated his clearly
established constitutional rights. This argument fails because the Amended Complaint does not
allege sufficient facts to establish that Green’s constitutional rights were violated by any
Defendant.
7. Request to File Second Amended Complaint
Finally, Green requests leave to amend the Amended Complaint to give him an
opportunity to “correct any deficiencies.” Obj. at 19. Rule 15(a) of the Federal Rules of Civil
Procedure instructs that leave to amend the complaint be given freely if justice so requires.
Fed. R. Civ. P. 15(a). However, a court has discretion to deny leave to amend under any of the
following circumstances: “undue delay, bad faith or dilatory motive on the part of the movant,

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repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or] futility of [the] amendment.”
Foman v. Davis, 371 U.S. 178, 182 (1962).
Green has already amended his Complaint once, and there is no indication that he will be
able to cure the deficiencies in the Amended Complaint by amending his Complaint a second
time. Green does not identify what, if any, additional facts he would allege that would be
sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 570 (2007). Based on Green’s pleadings thus far, it appears that a second
amended complaint would be futile. Although the Court recognizes Green’s pro se status, justice
does not require leave to once again amend the Complaint.
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Defendants Kelly Lake, Jesse Peterson, and Anthony Bastien’s Objection [Docket
No. 95] to the R&R is SUSTAINED;

2.

Plaintiff Anthony C. Green’s Motion to Accept Late Submission [Docket No. 96]
is GRANTED;

3.

Green’s Objection [Docket No. 97] to the R&R is OVERRULED;

4.

The Report and Recommendation [Docket No. 94] is ADOPTED IN PART and
MODIFIED IN PART as stated above;

5.

Defendants’ Motions to Dismiss [Docket Nos. 22, 35, 53, and 66] are
GRANTED; and

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6.

The Amended Complaint [Docket No. 14] is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: March 25, 2019.

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