Ernst v. Hinchliff et al
Filing
87
ORDER granting 30 Motion to Dismiss/General; granting 40 Motion to Dismiss/General; adopting 75 Report and Recommendation; denying 86 Motion to Reconsider; granting 13 Motion to Dismiss/General; granting 18 Motion to Dismiss/General. (Written Opinion) Signed by Judge Susan Richard Nelson on 09/08/2015. (SMD)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Ronald R. Ernst,
Case No. 14-cv-4923 (SRN/TNL)
Plaintiff,
ORDER ADOPTING REPORT AND
RECOMMENDATION
v.
Jon Hinchliff, Dwight Close, Jeremy
Britzius, Jack Rusinoff, Ed Hanson, ADL, 1
Barbara L. Neilson, Patricia Moen,
Michelle Murphy, Scott Nadeau,
Minneapolis Police Dept., MN Department
of Corrections, Bloomington, MN Police
Department, State of Minnesota, and
Columbia Heights Police Department,
Defendants.
Ronald R. Ernst, 902 47th Avenue Northeast, Hilltop, Minnesota 55421 (pro se Plaintiff).
Angela Helseth Kiese, Assistant Attorney General, Minnesota Attorney General’s Office,
445 Minnesota Street, Suite 1800, St. Paul, Minnesota 55101-2134 (for Defendants
Close, Britzius, Rusinoff, Neilson, Moen, Murphy, MN Department of Corrections, and
State of Minnesota);
Ryan M. Zipf, League of Minnesota Cities, 145 University Avenue West, St. Paul,
Minnesota 55103 (for Defendants Hanson, Nadeau, Bloomington Police Department, and
Columbia Heights Police Department); and
Brian Scott Carter, Assistant City Attorney, Minneapolis City Attorney’s Office, 350
South Fifth Street, Room 210, Minneapolis, Minnesota 55415 (for Defendants Hinchliff
and Minneapolis Police Department).
1
As noted in the Report and Recommendation [Doc. No. 75 at 1, n.1], Plaintiff includes
the acronym “ADL” when describing Defendant Neilson. Defendant Neilson is an
administrative law judge (“ALJ”) and Plaintiff, in fact, later refers to ALJ Neilson as an
ALJ. Thus, this Court also assumes the use of “ADL” in the caption was an inadvertent
typographical error by Plaintiff.
1
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on Plaintiff’s Objection to Recommendation to
Dismiss (“Objections”) [Doc. No. 76] to Magistrate Judge Tony N. Leung’s July 15, 2015
Report and Recommendation (“R & R”) [Doc. No. 75] granting Defendants’ Motions to
Dismiss [Doc. Nos. 13, 18, 30, 40], dismissing the State of Minnesota and the Department
of Corrections (“DOC”) as an arm of the State of Minnesota, and declining to exercise
supplemental jurisdiction over any remaining state claims, including Plaintiff’s Minnesota
Government Data Practices Act (“MGDPA”) claim against Defendant Moen, dismissing
these state claims without prejudice. For the reasons set forth below, the Court overrules
Plaintiff’s objections and adopts the R & R in its entirety.
I.
BACKGROUND
The factual and procedural background of this case is well documented in the R & R
and is incorporated herein by reference. (R & R at 2-16 [Doc. No. 75].) In general terms,
this case involves information distributed to various communities regarding Plaintiff Ronald
Ernst’s sex offender status. Plaintiff is required to register as a sex offender under Minn.
Stat. § 243.166 as he was convicted of a gross-misdemeanor offense which mandates
registration. See Ernst v. State, No. A03-63, 2003 WL 23023992, at *1 n.1 (Minn. App.
Dec. 30, 2003).
A. Plaintiff’s Prior Offenses
In 1984, Plaintiff plead guilty to a charge of Criminal Attempt to Commit Sexual
Assault on a Child in the State of Colorado. (R & R at 3.) The child was eleven (11) years
2
old, but the Plaintiff asserts he only touched the child on the abdomen. (Id.; see also
Objections at 3 [Doc. No. 76] (describing what is presumably the conduct underlying the
1984 conviction).)
In 1997, Plaintiff was charged with several criminal charges (collectively, “1997
Charges”) in Scott County, Minnesota including felony indecent exposure. (R & R at 4.)
See Ernst, 2003 WL 23023992, at *1. Although several of the charges were dismissed,
Plaintiff plead guilty to one count of felony indecent exposure for exposing himself to a
minor child. (R & R at 4.) See Ernst, 2003 WL 23023992, at *1. Subsequently, it was
determined errors in the pre-sentencing investigation resulted in an unwarranted felony
enhancement and the indecent-exposure offense was reduced to a gross misdemeanor. (R
& R at 4.) See Ernst, 2003 WL 23023992, at *1.
Prior to his release from incarceration on the indecent-exposure conviction,
Plaintiff claims he completed a Minnesota Department of Public Safety Bureau of
Criminal Apprehension, Sex Offender Notification and Registration Form—Minnesota
Statute 243.166. (R & R at 5.) However, after his release, he discovered his “Staff social
worker” had allegedly altered this form to include the dismissed charges from Scott County.
(Id.) He also claims this same social worker told him that if the felony indecent-exposure
had been charged as a gross misdemeanor, the Plaintiff would not have to register.2 (Id.)
In 2001, Plaintiff was arrested and convicted in Minnesota for failure to register as a
2
Plaintiff’s original complaint requested the Court “[o]rder the expiration of the [i]llegal
[r]egistration . . . .” (R & R at 16.) However, Plaintiff later clarified he was not
challenging the registration requirement, but was instead focusing on the allegedly false
statements Defendants made. (R & R at 3, n.4.)
3
predatory offender. (Id. at 5.) Soon after, in 2002, Plaintiff received a Level III designation
from the Minnesota Department of Corrections’ end-of-confinement review committee
(“ECRC”). (Id. at 6.) See Minn. Stat. § 244.052, subd. 3.
B. Minneapolis: February 2010
In February 2010, Defendant Jon Hinchliff (“Hinchliff”), an officer with the
Minneapolis Police Department, publicly distributed a fact sheet 3 regarding the Plaintiff’s
prior sexual offenses. (R & R at 6.) Plaintiff disputes the accuracy of this fact sheet,
specifically challenging its description of his prior offenses, victim pool, and the fact it
including dismissed charges. (Id. at 6-7.)
C. Bloomington: March 2010
In March 2010, Defendant Ed Hanson (“Hanson”), a detective with the
Bloomington Police Department, also distributed fact sheets regarding Plaintiff’s sex
offender status. (Id. at 7.) These fact sheets described Plaintiff’s charged offenses,
including the 1997 Charges, and including those that were ultimately dismissed. (Id.)
Plaintiff again disputes the accuracy of the information contained on this fact sheet and
also claims to have received a threatening phone call from a Bloomington resident. (Id.
at 7-8.)
D. DOC Documents
In April 2010, Plaintiff requested and received “a stack of papers” from the DOC
constituting his file with that agency.
(Id. at 8.)
3
This included a 2002 End of
Plaintiff regularly refers to these documents as fliers, but the Court uses the term “fact
sheet” as this is the term used by the documents themselves. (See R & R at 6, n.6.)
4
Confinement Risk Assessment issued by the ECRC; a 2002 Sex Offender Risk
Assessment Recommendation prepared by Defendant Jack Rusinoff (“Rusinoff”) for the
ECRC; a 1999 Risk Level Recommendation prepared by Defendant Dwight Close
(“Close”) for the ECRC; and a 2010 memorandum from Defendant Jeremy Britzius
(“Britzius”) 4 regarding the Plaintiff’s request for a risk-level-reduction (collectively,
“DOC Documents”). (Id.) Plaintiff disputes the accuracy of the information contained in
these reports. (See id. at 8-12.) According to the Plaintiff, the inaccuracies are a
violation of his “constitutional rights” and evidence a conspiracy amongst the various
Defendants to commit said violations. (See id.)
E. 2010 Risk Level Determination and Appeal
Also in 2010, the ECRC re-assessed the Plaintiff and issued a new Risk Assessment
Report. (Id. at 12.) Plaintiff alleges that as part of this re-assessment, he questioned
whether Defendant Michelle Murphy (“Murphy”) was going to use the “false ‘official’”
documents in the DOC’s file.5 (Id.) According to the Plaintiff, Murphy said the Minnesota
legislature had given the ECRC the authority to do whatever it wanted and thus they would
consider these “false” documents. (Id.) The ECRC decided to maintain Plaintiff’s Level III
designation, which Plaintiff claims is a further violation of his “constitutional rights.” (Id.)
Plaintiff appealed the ECRC’s Risk Assessment Report and the matter was heard by
Defendant Administrative Law Judge (“ALJ”) Barbara Neilson (“ALJ Neilson”). (Id. at
4
Defendants Rusinoff, Close, Britzius, Murphy, the Minnesota DOC, and the State of
Minnesota are collectively referred to as the “State Defendants.”
5
Presumably, these are the DOC Documents.
5
13.)
In affirming the ECRC’s decision, ALJ Neilson made numerous findings and
discussed Plaintiff’s 1984 conviction as well as the DOC Documents.6 (Id.) Plaintiff
asserts these findings are false and constitute a violation of his constitutional rights and a
continuation of the conspiracy against him. (Id.)
F. Center City: February 2011
Plaintiff moved to Center City Minnesota in February 2011. (Id.) A public meeting
was held at which information about the Plaintiff was presented by Defendant Patricia
Moen (“Moen”), a Minnesota state official.
(Id.)
Plaintiff alleges Moen not only
disseminated false information about his offense history, but also required he provide his
cell phone number, which was then made publicly available. (Id. at 13-14.) Plaintiff later
claims he received a threatening phone call. (Id. at 14.) In addition to being a continuation
of the conspiracy against him and a violation of his constitutional rights, Plaintiff contends
the public dissemination of his cell phone constitutes a violation of the MGDPA. (Id.)
G. Minneapolis: July 2011
In July 2011, Plaintiff moved back to Minneapolis and registered with the
Minneapolis Police Department. (Id.) Hinchliff again issued a fact sheet to the public
which Plaintiff claims contained both old and new false statements about his criminal
history and victim type.7 (Id.) According to Plaintiff, Hinchliff stated he received the
6
Plaintiff attached 16 pages of ALJ Neilson’s decision, but it is not clear from the record
whether this constitutes the entire decision. (See R & R at 13, n.8.)
7
No copy of the 2011 Minneapolis fact sheet is contained in the record. (See R & R at
14.)
6
information on this fact sheet “from the Internet.” (Id.) Plaintiff claims posting the “false
information” about him online, as well as distribution of the fact sheet, is a violation of his
constitutional rights. (Id.)
H. Columbia Heights: July 2013
Sometime in 2013, Plaintiff moved to Hilltop, Minnesota. (Id. at 15.) In July 2013,
Defendant Scott Nadeau (“Nadeau”), Chief of Police for the Columbia Heights Police
Department, distributed a letter to residents informing them of a community meeting about
Plaintiff. (Id.) Included with this letter was another fact sheet about Plaintiff. (Id.)
Plaintiff contends this fact sheet contained false information about him in violation of his
constitutional rights. (Id.)
I. Litigation
Precisely what claims Plaintiff asserts are unclear. (See R & R at 15.) Liberally
construing the Plaintiff’s Complaint, he claims all Defendants in their individual and official
capacities violated his Fifth, Eighth, Eleventh, and Fourteenth Amendment rights pursuant
to 42 U.S.C. § 1983; conspired to violate his civil rights under 42 U.S.C. § 1985; and
defamed him. (See id. at 15-16.) See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)
(“pro se complaints are to be construed liberally”). Plaintiff also raises a claim against
Moen for violation of the MGDPA, Minn. Stat. § 13.01 et seq. (See R & R at 16.)
Plaintiff asks for $500,000 in compensatory damages from each Defendant as well as
punitive damages in an amount to be determined at trial. (See id.) Finally, Plaintiff
requests an order directing the Minnesota Attorney General to file theft charges against
7
the individual Defendants for drawing a pay check while not performing their job duties. 8
(See id.)
After extensively reviewing the facts and law related to the Plaintiff’s claims, see
generally R & R, the Magistrate Judge recommended that the Defendants’ motions to
dismiss be granted and any remaining state claims, including the MGDPA claim, be
dismissed without prejudice. (Id. at 63-64.) The Magistrate Judge recommended that
Plaintiff’s claims against ALJ Neilson be dismissed on the grounds of judicial immunity.
(Id. at 18-21.) The Magistrate Judge further recommended that Plaintiff’s federal claims
against the State Defendants be dismissed on the following bases: (1) the Eleventh
Amendment (id. at 21-23); (2) the fact that none of the State Defendants were federal
defendants (id. at 24); (3) failure to plead any facts related to cruel and unusual
punishment (id. at 25); (4) failure to identify a protected liberty or property interest (id. at
25-26); (5) failure to allege any conscious-shocking conduct (id. at 26-29); and (6) failure
to allege facts sufficient to meet both the agreement and purpose elements of conspiracy
(id. at 31-33).
The Magistrate Judge similarly recommended that Plaintiff’s state
defamation claims be dismissed because they fell outside the applicable two-year statute
of limitations. (Id. at 33-35.) Finally, the R & R recommended that Plaintiff’s MGDPA
claim against Defendant Moen be dismissed, without prejudice, as it was a state law
claim, id. at 35-36, declining to exercise supplemental jurisdiction over any of Plaintiff’s
remaining state law claims. (Id. at 61-63.)
8
See also supra n.2.
8
The Magistrate Judge then examined Plaintiff’s claims against the Columbia
Heights Defendants. (Id. at 37-52.) The R & R first noted that Plaintiff’s service on the
City of Columbia Heights was insufficient, id. at 37-39, but considered the merits of
Plaintiff’s federal claims nonetheless. (Id. at 39.) The Magistrate Judge concluded that
Plaintiff’s federal claims against the Columbia Heights Defendants failed for the same
reasons his federal claims failed as to the State Defendants, id. at 39-41, 44-45, and
because Plaintiff failed to identify any government policy leading to the alleged
violations of his constitutional and civil rights. (Id. at 41-43.) Finally, the R & R
concluded that Plaintiff’s state defamation claims against the Columbia Heights
Defendants should be dismissed because those defendants were entitled to absolute
immunity as to their actions compiling and distributing the fact sheets regarding Plaintiff.
(Id. at 45-52.)
The Magistrate Judge next examined Plaintiff’s claims against the Minneapolis
Defendants. (Id. at 52-57.) For the same reasons that Plaintiff’s federal claims against
the State Defendants be dismissed, the R & R recommended that Plaintiff’s federal
claims against the Minneapolis Defendants be dismissed. (Id. at 53-56.) The R & R
recommended that Plaintiff’s state defamation claim be dismissed as time-barred under
the two-year statute of limitations. (Id. at 57.)
Lastly, the Magistrate Judge considered Plaintiff’s claims against the Bloomington
Defendants. (Id. at 57-61.) For the same reasons that Plaintiff’s federal claims against
the State Defendants should be dismissed, the R & R recommended that Plaintiff’s
federal claims against the Bloomington Defendants be dismissed. (Id. at 58-61.) The R
9
& R further recommended that Plaintiff’s state claim for defamation be dismissed as
time-barred under the two-year statute of limitations. (Id. at 61.)
Plaintiff filed his objections to the R & R in a timely fashion. (See Objections.)
The various Defendants all filed timely responses claiming that Plaintiff failed to raise
any meritorious legal or factual arguments in his objections. (Columbia Heights and
Bloomington Defendants’ Response to Plaintiff’s Objections at 1 [Doc. No. 77];
Defendant Minneapolis’ Response to Plaintiff’s Objections at 2 [Doc. No. 79]; State
Defendants’ Response to Plaintiff’s Objections at 1 [Doc. No. 81].)
Plaintiff
subsequently filed three (3) documents which the Court construes as replies to the
Defendants’ responses (collectively, “Replies”). 9 (See Reply to Response of Ryan M.
Zipf [Doc. No. 83]; Resonse [sic] to Defendant’s Motion to Dismiss [Doc. No. 84];
Plaintiff’s Response to State Defendant’s Response to Dismiss [Doc. No. 85].) Lastly,
Plaintiff filed a Motion for Reconsideration [Doc. No. 86]. 10
9
No reply is afforded under the Local Rules. See D. Minn. LR 72.2(b). Even if these
replies were instead construed as supplementation to the Plaintiff’s Objections, they
would be untimely as they were filed more than 14 days after Plaintiff was served with
the R & R. See D. Minn. LR 72.2(b)(1). Plaintiff was previously cautioned to comply
with the Federal Rules of Civil Procedure and Local Rules of this Court and specifically
warned that consideration of untimely materials might not occur in the future, despite his
pro se status. (R & R at 37, n.13.) However, in the interest of fairness and given the
liberal standard afforded pro se pleadings, the Court has reviewed and considered the
Plaintiff’s Replies. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
10
Pursuant to Local Rule 7.1(j), motions to reconsider require the “express permission of
the Court,” which will be granted “only upon a showing of compelling circumstances.”
A motion to reconsider should not be utilized to re-litigate prior issues, but rather to
“afford an opportunity for relief in extraordinary circumstances.” Dale & Selby
Superette & Deli v. U.S. Dep’t of Agric., 838 F. Supp. 1346, 1348 (D. Minn. 1993).
Plaintiff did not seek permission from the Court before filing his Motion for
10
II.
DISCUSSION
A district court must make an independent evaluation of those portions of an R & R
to which objection is made and may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. See 28 U.S.C. § 636(b)(1)(c);
see also Fed. R. Civ. P. 72(b); D. Minn. LR 72.2(b). Local Rule 72.2(b)(1) requires parties
to “serve and file specific written objections to a magistrate judge’s proposed findings
and recommendations . . . .” The specific portions of the report and recommendation
objected to should be identified and the bases for those objections provided. 11
Montgomery v. Compass Airlines, LLC, No. CIV. 14-557 (JRT/FLN), __ F. Supp. 3d __,
2015 WL 1522248, at *3 (D. Minn. Mar. 30, 2015); Mayer v. Walvatne, No. 07–1958
Reconsideration, nor did he present any compelling or extraordinary circumstances
warranting reconsideration. (See generally Motion for Reconsideration.) Instead,
Plaintiff makes assertions and arguments that are nearly identical to those he previously
made. (Compare Motion for Reconsideration [Doc. No. 86] with Replies [Doc. Nos. 83,
84, 85] and Objections [Doc. No. 76].) The Court will construe the Motion for
Reconsideration as an attempt by Plaintiff to supplement his objections. See supra n.9.
His motion is therefore denied as moot.
11
Arguably, when these specificity requirements are not met, the Court’s review of the
report and recommendation is done on a clear error standard. See Montgomery, 2015
WL 1522248, at *3 (“Objections which are not specific but merely repeat arguments
presented to and considered by a magistrate judge are not entitled to de novo review, but
rather are reviewed for clear error.”). However, the Eighth Circuit favors de novo review
of pro se objections, even when they lack the required specificity. See Hudson v.
Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (emphasizing the liberal construction standard
for pro se litigants applies to objections to reports and recommendations). Thus, the
Court conducts its review under the de novo standard despite Plaintiff’s near total lack of
any specific reference to the portion(s) of the R & R to which he objects, or the bases for
those objections. (See generally Objections.) See Mayer, 2008 WL 4527774, at *2
(holding that pro se litigant’s general objection to a report and recommendation “failed to
identify a basis for rejecting” the report as required, but independently reviewing the
files, records, and proceedings in the case before adopting the report).
11
(JRT/RLE), 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008).
Although difficult to discern precisely what Plaintiff’s objections are, the Court
construes his objections to the R & R as follows: (1) that the allegedly incorrect
information about the Plaintiff contained in Britzius’ memorandum was not properly
considered (Objections at 3); (2) that the R & R’s recommendation to dismiss the 42
U.S.C. § 1985 conspiracy claim against Murphy was erroneous (id.); (3) that the R & R
improperly dismissed Plaintiff’s 42 U.S.C. § 1985 conspiracy and MGDPA claims
against Moen (id.); (4) that the R & R erred by recommending dismissal of Plaintiff’s
claims against ALJ Neilson (id. at 3-4); (5) that the R & R’s conclusions regarding
service on Nadeau were incorrect, that Plaintiff’s defamation claim against Nadeau is
within the statute of limitations, and that the recommendation to dismiss Plaintiff’s
claims against the other Columbia Heights Defendants was improper (id. at 4); (6) that
the R & R did not review the exhibits to Plaintiff’s Complaint under the appropriate
standard when considering a motion to dismiss (id.); (7) that the R & R applied the wrong
statute of limitations to Plaintiff’s defamation claims against the State Defendants (id. at
5); and (8) a generalized objection, consisting of a recitation of the Plaintiff’s claims and
alleged facts. (See generally id. at 1-3, 5-6; Replies [Doc Nos. 83, 84, 85]; Motion for
Reconsideration [Doc. No. 86].)
A. Standard of Review for Defendants’ Motions to Dismiss
Ultimately, the R & R recommended granting all of the Defendants’ motions to
dismiss. (R & R at 63-64.) As described above, Plaintiff’s generalized objections to the
12
R & R challenge this recommendation. Thus, an examination of the standard by which a
motion to dismiss is granted is warranted.
Federal Rule of Civil Procedure 8 requires that a complaint present “a short and
plain statement of the claim showing that the pleader is entitled to relief.” To meet this
standard, and survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Although a complaint is not required to contain detailed
factual allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). The plausibility standard requires a plaintiff to
show at the pleading stage that success on the merits is more than a “sheer possibility.”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (citation omitted). It
is not, however, a “probability requirement.” Id. (citation omitted). Thus, “a wellpleaded complaint may proceed even if it strikes a savvy judge that actual proof of the
facts is improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550
U.S. at 556 (citation omitted).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Several
principles guide courts in determining whether a complaint meets this standard. First, the
court must take the plaintiff's factual allegations as true and grant all reasonable
13
inferences in favor of the plaintiff. Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009).
This tenet does not apply, however, to legal conclusions or “formulaic recitation of the
elements of a cause of action;” such allegations may properly be set aside. Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555). In addition, some factual allegations
may be so indeterminate that they require “further factual enhancement” in order to state
a claim. Id. (quoting Twombly, 550 U.S. at 557.) Finally, the complaint “should be read
as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is
plausible.” Braden, 588 F.3d at 594.
Evaluation of a complaint upon a motion to dismiss is “a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679 (citation omitted). A court may consider the complaint, matters of
public record, orders, materials embraced by the complaint, and exhibits attached to the
complaint in deciding a motion to dismiss under Rule 12(b)(6). Porous Media Corp. v.
Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
The Magistrate Judge employed precisely this standard when considering the
Defendants’ motions to dismiss. (See R & R at 3, n.3 and n.5, 16-18.) Therefore, to the
extent that Plaintiff’s objections assert the wrong standard was applied, those objections
are overruled.
B. Objection: Failure to Consider Information in the Britzius Memorandum
Plaintiff objects that the Britzius memorandum regarding Plaintiff’s 2010 risk
level reassessment, which Plaintiff alleges contains false information, was not properly
considered by the R & R. (Objections at 3.) However, the R & R explicitly addresses
14
Plaintiff’s claims related to this memorandum and the allegedly false information it
contains. (R & R at 11-12.) The allegedly false information is not actually from the
Britzius memorandum, but comes from two (2) pages of Close’s report which were
“sandwiched in between” the pages of Britzius’ memorandum in the Plaintiff’s exhibits.
(Id. at 11, n.7.) Britzius’ memorandum does not contain the allegedly false information
that Plaintiff claims it does. (See id. at 11-12.)
Notably, in considering Plaintiff’s 42 U.S.C. § 1983 claims against the State
Defendants, the R & R states “[a]ccepting the allegations in the Complaint as true . . . the
statements made by Close, Rusinoff, and Britzius, and Moen, even if at times
inaccurate,” did not “shock the conscience or were made in an arbitrary or capricious
fashion” such that the Plaintiff had a substantive-due process claim under the Fourteenth
Amendment. (R & R at 27 (emphasis added).) The Magistrate Judge properly assumed
the Plaintiff’s allegations about the inaccurate information in the DOC Documents were
true. See United States ex rel. Raynor v. Nat’l Rural Utils. Coop. Fin., Corp., 690 F.3d
951, 955 (8th Cir. 2012) (directing that when considering a motion to dismiss, all the
complainant’s facts be construed as true). Furthermore, the Magistrate Judge applied the
correct legal standard. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015)
(directing that liability for negligently inflicted harm does not give rise to a constitutional
due process claim).
Plaintiff’s allegations that Britzius’ memorandum contained
inaccurate information were properly considered.
15
Even if Britzius’ memorandum
contained false information, Plaintiff’s federal claims must still be dismissed. 12
Plaintiff’s objection is overruled.
C. Objection: Improper Dismissal of Plaintiff’s Conspiracy Claim Against
Murphy
Plaintiff asserts that “Defendant Murphy is keeping to [sic] conspiracy alive” by
using the reports of Close, Britzius, and Rusinoff in assessing Plaintiff’s Risk Level,
despite knowing information within those reports is false. (Objections at 3.) The Court
construes this as an objection to the dismissal of Plaintiff’s 42 U.S.C. § 1985 conspiracy
claim against Murphy.
To establish a conspiracy under § 1985, a plaintiff must prove: 1) the existence of
a conspiracy; 2) a purpose in the conspiracy to deprive him of his civil rights; 3) an act in
furtherance of the conspiracy; and 4) injury. R.S. ex rel. S.S. v. Minnewaska Area Sch.
Dist. No. 2149, 894 F. Supp. 2d 1128, 1144 (D. Minn. 2012). The purpose element
requires a showing of some “class-based, invidiously discriminatory animus behind the
conspirators' action.” Id. at 1145 (citations and quotations omitted). Plaintiff offered
nothing more than a general allegation that a conspiracy existed among the Defendants.
(See R & R at 32; Compl. at 6, 11, 15, 16, 18-19 [Doc. No. 1]; Am. Compl. at 2 [Doc.
No. 51]) He presented no particulars on how any of the Defendants agreed to violate his
civil rights. (See R & R at 32-33.) Nor did Plaintiff allege facts to satisfy the purpose
12
Consideration of the accuracy of Britzius’ memorandum is not necessary to properly
conclude that Plaintiff’s other federal claims against the State Defendants should be
dismissed. (See R & R at 21-26, 29-33). Nor is such consideration necessary to dismiss
Plaintiff’s state defamation claims against the State Defendants. (See id. at 33-36.)
16
element for a conspiracy, see R & R at 33, considering sex offender status is not a suspect
classification. See Weems v. Little Rock Police Dep’t, 453 F.3d 1010, 1016 (8th Cir.
2006) (sex offender status not suspect classification). Plaintiff’s 42 U.S.C. § 1985 claim
against Murphy is properly dismissed on this record. Plaintiff’s objection is overruled.
D. Objection: Improper Dismissal of Plaintiff’s Conspiracy and MGDPA
Claims Against Moen
Plaintiff asserts “Defendant Moen is just as guilty as the rest” 13 for “illegally
giving out” his phone number and “keeping with the constant conspiracy” to violate his
civil rights.
(Objections at 3.)
The Court construes this as an objection to the
recommendation that Plaintiff’s 42 U.S.C. § 1985 conspiracy and MGDPA claims against
Moen be dismissed.
For the same reasons discussed in Sect. II(C) above, dismissal of Plaintiff’s
conspiracy charge against Moen is appropriate and the Plaintiff’s objection is overruled.
Similarly, the R & R’s analysis of Plaintiff’s MGDPA claim against Moen is
correct. (See R & R at 35-36.) The statute of limitations on a MGDPA claim is six
years. Manteuffel v. City of North St. Paul, 570 N.W.2d 807, 812 (Minn. App. 1997).
Plaintiff alleges Moen distributed his cell phone in early 2011. (See R & R at 13-14.)
13
Plaintiff appears to believe the Magistrate Judge concluded Moen is guilty of violating
the MGDPA. (Objections at 3.) However, the R & R contains no such conclusion. (See
R & R at 28-29 (expressing “concern” about the Plaintiff’s allegation, but ultimately
finding no basis for a substantive-due process claim), 35-36 (finding that pursuit of the
MGDPA claim in federal court is prohibited by the Eleventh Amendment, but noting
Plaintiff could bring that claim in state court).)
17
Thus, Plaintiff’s claim is timely.
(See id.) However, timeliness is not why the claim
must be dismissed.
Moen, as an individual, cannot face a claim for violation of the MGDPA because
that statute does not impose individual liability. Minn. Stat. § 13.08, subd. 8 (directing
that claims may be brought against a “responsible authority or government entity”);
Evenstad v. Herberg, 994 F. Supp. 2d 995, 1005 (D. Minn. 2014); Walker v. Scott Cnty.,
518 N.W.2d 76, 78 (Minn. Ct. App. 1994). Nor could Plaintiff bring a claim in federal
court against Moen in her official capacity as it would be barred by the Eleventh
Amendment. See Evenstad, 994 F. Supp. 2d at 1006 (dismissing MGDPA claim because
the MGDPA does not indicate an intent by Minnesota to subject itself to suit in federal
court); see also Soto v. John Defendants 1-5, No. CIV. 13-640 (DWF/SER), 2014 WL
1607615, at *12 (D. Minn. Apr. 15, 2014) aff'd sub nom. Soto v. Minnesota Bureau of
Criminal Apprehension, 581 F. App'x 606 (8th Cir. 2014) (barring state law claims
against state employees in their official capacity pursuant to the Eleventh Amendment).
As the Magistrate Judge noted, Plaintiff is free to bring his MGDPA claim against Moen
in state court, but not federal court. (R & R at 36.) Dismissal, without prejudice, of
Plaintiff’s MGDPA claim is appropriate. Plaintiff’s objection is overruled.
E. Objection: Dismissal of Plaintiff’s Claims Against ALJ Neilson was
Improper
Plaintiff asserts “ALJ Neilson is the biggest violator” because she “lied” in her
decision upholding Plaintiff’s 2010 risk level determination by making certain findings as
to the Plaintiff’s conduct underlying his 1984 conviction.
18
(Objections at 4.)
Furthermore, Plaintiff claims ALJ Neilson’s use of this allegedly false information is a
violation of his “Due Process Right’s [sic] and Equal Protection Rights,” and that by
using such information ALJ Neilson is “continuing the conspiracy . . . .” (Id. at 5.) The
Court construes this as an objection to the R & R’s recommendation to dismiss Plaintiff’s
claims against ALJ Neilson.
State judicial officers are entitled to judicial immunity against claims under 42
U.S.C. § 1983 as long as they are acting within their judicial capacity and do not act in
“complete absence of all jurisdiction.” Tennant v. Anderson, 453 F. App'x 657, 658 (8th
Cir. 2011) (citing Mireles v. Waco, 502 U.S. 9, 11–12, (1991)). ALJ Neilson was plainly
acting within her judicial capacity and jurisdiction when she upheld the ECRC’s risk
level determination regarding the Plaintiff. (See R & R at 19-20.) Importantly, even if
ALJ Neilson’s statements were erroneous and made maliciously, she would still be
entitled to judicial immunity. See Schottel v. Young, 687 F.3d 370, 373 (8th Cir. 2012).
Plaintiff’s objection related to the alleged intent behind ALJ Neilson’s statements
and the inaccurate nature of those statements is misplaced. Even assuming everything
Plaintiff asserts were true, ALJ Neilson is entitled to judicial immunity, meaning
Plaintiff’s claims must be dismissed. (See R & R at 18-21.) Plaintiff’s objection is
overruled.
F. Objection: Improper Dismissal of Plaintiff’s Claims Against the Columbia
Heights Defendants
Plaintiff appears to assert numerous objections to the R & R’s recommendation
that his claims against Nadeau, the Columbia Heights Police Department, and the City of
19
Columbia Heights (collectively, “Columbia Heights Defendants”) be dismissed. (See
Objections at 4.)
1. Objection: the Columbia Heights Defendants Were Properly Served
Plaintiff contends “Nadeau was properly served as is evident by the response of
his Attorney Ryan M. Zipf . . . .” (Objections at 4.) The Court construes this as an
objection to the R & R’s conclusions regarding service on the Columbia Heights
Defendants. (See R & R at 37-39.)
The Magistrate Judge declined to dismiss Plaintiff’s claims against the Columbia
Heights Defendants on the basis of insufficient service and instead considered the merits
of those claims. (R & R at 38-39.) This Court agrees with that decision, rendering the
issue of service moot. However, because the Plaintiff appears to directly challenge the R
& R’s findings related to service, see Objections at 4, the Court will review those
findings.
Plaintiff misconstrues the R & R’s findings on the issue of service. Nadeau was
in-fact served. (See R & R at 38.) However, the problem is that service on Nadeau was
not effective as to the other Columbia Heights Defendants whom Plaintiff’s claims are
properly asserted against. (See id. at 39.)
Municipal police departments, such as the Columbia Heights Police Department,
are not entities subject to suit. Anderson v. City of Hopkins, 805 F. Supp. 2d 712, 719
(D. Minn. 2011). Instead, they are departments or subdivisions of their city government.
See Ketchum v. City of W. Memphis, Ark., 974 F.2d 81, 82 (8th Cir. 1992). There is no
evidence Plaintiff served the Columbia Heights Police Department. (R & R at 38.) Even
20
if Plaintiff had properly served this entity, the issue would be moot as the Columbia
Heights Police Department is not subject to suit.
Municipalities, like the City of Columbia Heights, may be served through their
chief executive officer or city clerk. 14 See Fed. R. Civ. P. 4(j)(2); Minn. R. Civ. P.
4.03(e)(2). Plaintiff’s service on Nadeau, who was chief of the Columbia Heights Police
Department, was not effective as to the City of Columbia Heights. There is no evidence
in the record that the City of Columbia Heights was ever served. (R & R at 38.) That
Mr. Zipf, as counsel for the Columbia Heights Defendants, answered Plaintiff’s
complaint does not excuse Plaintiff from his service obligations. See Sieg v. Karnes, 693
F.2d 803, 807 (8th Cir. 1982) (actual notice of a lawsuit does not remedy jurisdictional
issues related to defective service); Baden v. Craig-Hallum, Inc., 115 F.R.D. 582, 586,
n.4 (D. Minn. 1987) (“The mere fact that a defendant has received actual notice of the
pending action is not sufficient if there has not been compliance with the plain
requirements of [Fed. R. Civ. P.] 4.”).
Failure to comply with service requirements can, at the discretion of the court,
serve as the basis for dismissal under Fed. R. Civ. P. 12(b)(5). See Marshall v. Warwick,
14
As the R & R points out, Plaintiff did not sue the city of Columbia Heights, only
Nadeau and the Columbia Heights Police Department. (R & R at 37.) However, under
the liberal construction afforded pro se complaints, both the Magistrate Judge (R & R at
39) and this Court construe Plaintiff’s federal claims as against the City of Columbia
Heights. See Logsdon v. St. Paul Police Dep't Cent. Dist. (LEC), No. CIV. 09-183
(PAM/RLE), 2010 WL 1006524, at *4 (D. Minn. Feb. 26, 2010) report and
recommendation adopted, No. CIV. 09-183 (PAM/RLE), 2010 WL 1006527 (D. Minn.
Mar. 16, 2010) (construing pro se litigant’s 42 U.S.C. § 1983 claims against a police
department as being asserted against the relevant city).
21
155 F.3d 1027, 1032 (8th Cir. 1998) (failure in service may warrant dismissal, but the
appropriate action is ultimately within the court’s discretion); 3M Co. v. DarletMarchante-Technologie SA, No. CIV. 08-827 (JNE/SRN), 2009 WL 1228245, at *6 (D.
Minn. May 5, 2009) (same).
However, as previously noted, the R & R did not
recommend, nor does this Court dismiss Plaintiff’s claims on the basis of service.
Plaintiff’s objection related to service on the Columbia Heights Defendants is overruled.
2. Objection: Dismissal of Plaintiff’s Defamation Claim Is Improper
Because it Falls Within the Statute of Limitations
Plaintiff asserts, “The Court can dismiss the defamation claim, if it seems [sic] fit,
except for Nadeau, as his actions are within” the two-year statute of limitations.
(Objections at 4.)
The Court construes this as an objection to the R & R’s
recommendation that Plaintiff’s defamation claim against the Columbia Heights
Defendants be dismissed. (See R & R at 45-52.)
The Magistrate Judge explicitly noted that the alleged defamatory statements made
by the Columbia Heights Defendants were within the two-year statute of limitations. (R
& R at 45.) However, the Columbia Heights Defendants assert they are entitled to
absolute or qualified immunity on Plaintiff’s defamation claim. (Id.) The Magistrate
Judge, in a careful analysis, determined that the Columbia Heights Defendants were not
entitled to statutory immunity under Minn. Stat. § 244.052, subd. 7 (id. at 45-46), but
were entitled to absolute immunity (id. at 46-52). The Court agrees with this analysis.
Thus, Plaintiff’s defamation claim is dismissed not because of issues related to the statute
22
of limitations, but rather because the Columbia Heights Defendants are entitled to
absolute immunity from such a claim. Plaintiff’s objection is overruled.
3. Objection: Dismissal of Plaintiff’s Federal Claims Against the
Columbia Heights Defendants Is Improper
Finally, Plaintiff further contends that “the Court cannot dismiss the other claims
of Plaintiff Ernst,” because they relate to Plaintiff’s civil rights and the Columbia Heights
Defendants’ violation of those rights. (Objections at 4.) The Court construes this as a
general objection to the R & R’s recommendation that Plaintiff’s federal claims against
the Columbia Heights Defendants be dismissed.
Plaintiff offers no authority for his contention that because his claims related to his
civil rights, they may not be dismissed. This Court can find no support for such an
argument.
Rather, Plaintiff’s constitutional and civil rights claims must “contain
sufficient factual allegations to ‘state a claim to relief that is plausible on its face’” to
avoid a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Smithrud v. City of St. Paul,
746 F.3d 391, 397 (8th Cir. 2014) (quoting Twombly, 550 U.S. at 547). As the R & R
plainly describes, Plaintiff’s constitutional and civil rights claims fail to meet this
standard. (R & R at 39-45.) Plaintiff’s objection is overruled.
G. Objection: Plaintiff’s Exhibits Were Not Reviewed Under the Appropriate
Standard
Plaintiff asserts he “has stated a claim” but that “Counsel” has a belief “this case
can be dismissed through false and untruthful statements” that “omit the actual facts . . .
.” (Objections at 4.) “The Exhibits do not lie, as they are Court Documents and are
factual.” (Id.) The Court construes this as an objection that the Plaintiff’s exhibits,
23
which were attached to his Complaint [Doc. No. 1], were not properly considered in the
R & R.
“In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in
the complaint to be true and construes all reasonable inferences most favorably to the
complainant.”
Raynor, 690 F.3d at 955.
When considering a motion to dismiss,
generally a court will not consider materials outside the pleadings. Greenman v. Jessen,
787 F.3d 882, 887 (8th Cir. 2015). However, courts may consider exhibits attached to the
complaint and some materials that are part of the public record. Id.
The Magistrate Judge identified and used this standard when assessing the
Defendants’ motions to dismiss. (R & R at 3, n.3 and n.5, 17.) Plaintiff’s exhibits were
considered and frequently cited. (See generally R & R.) Plaintiff’s allegations and
purported facts were also taken as true. (See, e.g. id. at 20, 27-29, 32, 35, 44, 46.) This
Court has similarly taken Plaintiff’s allegations and facts as true, as well as considered
the exhibits Plaintiff presented. Plaintiff’s objection is without merit and overruled.
H. Objection: the Wrong Statute of Limitations Was Applied to Plaintiff’s
Defamation Claims Against the State Defendants
Plaintiff disputes that the two-year statute of limitations applies to his defamation
claims against the State Defendants. 15 (Objections at 5.) He claims the appropriate
statute of limitations period “is five years in a Federal Action, involving Libel and
15
This contention runs contrary to Plaintiff’s earlier allowance that the Court could
dismiss his defamation claims, except those against the Columbia Heights Defendants.
(Objections at 4; see supra Sect. II(F)(2).)
24
Slander.” 16 (Id.) The Court construes this as an objection that the wrong statute of
limitations was applied to Plaintiff’s defamation claim against the State Defendants.
Defamation is a common-law claim. See Moreno v. Crookston Times Printing
Co., 610 N.W.2d 321, 327-28 (Minn. 2000) (“The common law claim of defamation at
civil law . . . redress[es] though injuries to reputation caused by the publication of false
information damaging to another’s reputation.”); Glenn v. Daddy Rocks, Inc., 171 F.
Supp. 2d 943, 948 (D. Minn. 2001) (applying Minnesota law to defendant’s defamation
counterclaim). “[A] cause of action under state law is, of course, governed by the
applicable state law limitations period, even when such a claim is heard in federal court.”
Firstcom, Inc. v. Qwest Commc'ns, 618 F. Supp. 2d 1001, 1010 (D. Minn. 2007) aff'd sub
nom. Firstcom, Inc. v. Qwest Corp., 555 F.3d 669 (8th Cir. 2009).
Minn. Stat. §
541.07(1) sets a two-year statute of limitations on actions for “libel and slander.” See
Issaenko v. Univ. of Minnesota, 57 F. Supp. 3d 985, 1029 (D. Minn. 2014) (“Under
Minnesota law, a two-year statute of limitations applies to claims for defamation.”).
Plaintiff’s defamation claim against the State Defendants is a state law claim and the twoyear statute of limitations applies. 17
Plaintiff’s objection is without merit and is
overruled.
16
Notably, Plaintiff previously made, and the Magistrate Judge considered, this
argument. (R & R at 34.)
17
The R & R did not recommend dismissal of the Plaintiff’s 42 U.S.C. §§ 1983 and 1985
constitutional claims against the State Defendants on the basis of any statute of
limitations. (See R & R 18-33.) This Court similarly does not dismiss these federal
claims pursuant to any statute of limitations.
25
I. Objection: General Restatement of the Plaintiff’s Claims and Allegations
Plaintiff, in numerous documents, essentially restates his claims and allegations
against the various Defendants. (See Objections at 1-3, 5-6; Replies [Doc. Nos. 83, 84,
85]; Motion for Reconsideration [Doc. No. 86].) The Court construes this as a general
objection that the R & R failed to consider Plaintiff’s claims and allegations.
Plaintiff’s claims and allegations were extensively examined in the R & R. (See
generally R & R.) As detailed above, the Magistrate Judge applied the appropriate legal
standards when assessing Plaintiff’s claims. Merely restating what Plaintiff previously
asserted in his pleadings does not constitute a viable objection to the R & R. See Carlone
v. Heat & Frost Insulators & Allied Workers Local 34, No. 14-CV-579 (SRN/JSM), 2014
WL 5438493, at *6 (D. Minn. Oct. 23, 2014) (overruling Plaintiff’s objection which was
merely a restatement of claims alleged in her complaint when the magistrate judge
addressed those claims). Plaintiff’s objection is overruled.
III.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.
Plaintiff’s Objections to the Magistrate Judge’s Report & Recommendation
[Doc. No. 76] are OVERRULED;
2.
Plaintiff’s Motion for Reconsideration [Doc. No. 86] is DENIED AS
MOOT;
3.
The Magistrate Judge’s R & R [Doc. No. 75] is ADOPTED;
4.
Defendants’ Motions to Dismiss [Doc. Nos. 13, 18, 30, and 40] are
26
GRANTED; and
5.
The Court declines to exercise supplemental jurisdiction over any
remaining state claims, including Plaintiff’s MGDPA claim against Moen,
and such claims are DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: September 8, 2015
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
27
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