Thomas v. Dakota County Law Enforcement Center et al
MEMORANDUM OPINION AND ORDER denying 171 Plaintiff's Motion for Partial Summary Judgment; granting 178 Defendants Motion for Summary Judgment; Adopting Report and Recommendation of the Magistrate Judge 198 ; and overruling Plaintiff's objections 199 and 201 . (Written Opinion) Signed by Chief Judge John R. Tunheim on 08/14/2017. (JMK)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 15-2197 (JRT/KMM)
DESEAN LAMONT THOMAS,
PASTOR JAMES BZOSKIE, LIEUTENANT
LAWRENCE HEART, LIEUTENANT
BENJAMIN VERBY, and DAKOTA
AND ORDER ADOPTING
Desean Lamont Thomas, No. 228679, MCF-Rush City, 7600525th Street,
Rush City, MN 55069, pro se plaintiff.
Jeffrey A. Timmerman and Helen R. Brosnahan, DAKOTA COUNTY
ATTORNEY’S OFFICE, 1560 Highway 55, Hastings, MN 55033, for
On April 29, 2015, Plaintiff Desean Lamont Thomas filed an action under
42 U.S.C. § 1983 asserting that while in custody at the Dakota County Jail, Defendants
Pastor James Bzoskie, Lieutenant Lawrence Heart, Lieutenant Benjamin Verby, and
Dakota County (“Defendants”) 1 violated Thomas’s constitutional rights. (Compl., Apr.
29, 2015, Docket No. 1; Second Am. Compl., Aug. 11, 2016, Docket No. 115.)
Specifically, Thomas alleged that: Pastor Bzoskie and Lieutenant Heart violated his First
As provided in the R&R, although Captain Richard Schroeder and Commander Dan
Scheuermann are listed as “defendants” on the docket, they should be terminated as Thomas has
no claims against either defendant at this time. (See R&R at 1 n.1, May 8, 2017, Docket No.
Amendment right to free exercise of religion by preventing Thomas from gathering with
other Muslims in the jail for communal worship; Pastor Bzoskie and Lieutenant Verby
violated his First Amendment free-exercise rights by preventing him from keeping
Islamic worship materials in his cell; Pastor Bzoskie and Lieutenant Heart violated his
Fourteenth Amendment equal protection rights because they allowed members of other
faiths to engage in communal worship; and that Pastor Bzoskie and Lieutenant Verby
violated his Fourteenth Amendment equal protection rights by denying him worship
materials while giving members of other religions preferential treatment. (See Second
Am. Compl. ¶¶ D-G; Order at 9-10, 20-21 Aug. 11, 2016, Docket No. 112 (discussing
claims against Lieutenant Heart and summarizing all claims)).
On November 30, 2016, Thomas moved for partial summary judgment, and on
December 27, 2016, Defendants moved for summary judgment. On May 8, 2017, United
States Magistrate Judge Katherine Menendez issued a Report and Recommendation
(“R&R”) recommending that the Court deny Thomas’s motion and grant Defendants’
motion. Subsequently, Thomas timely filed objections to the R&R. 2
Thomas objects to the R&R on two grounds. First, he argues that the Magistrate
Judge failed to address his claim that the jail unconstitutionally prohibited imam-led
Islamic gatherings. Second, he requests the Court grant him leave to file two new
affidavits and resubmit previous affidavits.
Because Thomas never raised the first
Thomas filed objections to the R&R on May 17, 2017, as well as a “motion for
additional opportunities” on May 18, 2017. (Pl.’s Obj. to R&R, May 18, 2017, Docket No. 199;
Pl.’s Mot. for Additional Opportunities., May 18, 2017, Docket No. 201.) In the interest of
justice, the Court will construe both filed documents as Thomas's objections to the R&R.
objection before the Magistrate Judge, and because his second objection would not
change the result of the R&R, the Court will overrule Thomas’s objections, adopt the
R&R, deny Thomas’s motion for summary judgment, and grant Defendants’ motion for
STANDARD OF REVIEW
Upon the filing of a report and recommendation by a magistrate judge, a party
may “file specific written objections to the proposed findings and recommendations.”
Fed. R. Civ. P. 72(b)(2); accord D. Minn. LR 72.2(b)(1). “The objections should specify
the portions of the magistrate judge’s report and recommendation to which objections are
made and provide a basis for those objections.” Mayer v. Walvatne, No. 07-1958, 2008
WL 4527774, at *2 (D. Minn. Sept. 28, 2008).
The Court reviews de novo any portion of an R&R “that has been properly
objected to.” Fed. R. Civ. P. 72(b)(3); accord D. Minn. LR 72.2(b)(3). Accordingly, the
Court will review the portions of the R&R that Thomas objected to de novo.
Thomas does not object to the R&R’s conclusion that the jail’s prohibition of
inmate-led Islamic gatherings is constitutional. Instead, he contends for the first time that
the jail also unconstitutionally prohibited imam-led Islamic gatherings. While pro se
plaintiffs are held to less stringent standards, the Court cannot consider arguments that
were not presented to the Magistrate Judge. See Ridenour v. Boehringer Ingelheim
Pharm., Inc., 679 F.3d 1062, 1067 (8th Cir. 2012) (collecting cases holding a court cannot
consider arguments not before a magistrate judge); see also Embaye v. Minneapolis
Police Dep’t, No. 14-2896, 2016 WL 3960374, at *13 (D. Minn. June 22, 2016) (holding
a pro se plaintiff’s addition of new claims in response to defendants’ summary judgment
motion was improper), adopted by 2016 WL 3962867 (D. Minn. July 21, 2016)..
Additionally, the undisputed evidence does not support Thomas’s position. The
record provides that Pastor Bzoskie arranged for an imam to meet with Thomas and
attempted to arrange for an imam to continue visiting at the jail, but no imam offered to
voluntarily visit the jail on an ongoing basis. (Aff. of Pastor James Bzoskie ¶¶ 9-14, Dec.
27, 2016, Docket No. 181.) As Pastor Bzoskie’s efforts “to recruit [imam] volunteers
evidence[s] a ‘good faith accommodation’” of Thomas’s constitutional rights, the Court
will overrule his first objection. Akbar v. Gomez, No. 96-55280, 1997 WL 547944, at *2
(9th Cir. Sept. 3, 1997) (quoting Allen v. Toombs, 827 F.2d 563, 569 (9th Cir. 1987)); see
also Shepard v. Peryam, 657 F. Supp. 2d 1331, 1347 (S.D. Fla. 2009) (“The fact that no
imam has contacted the institution, and that services have not been provided, does not
amount to a constitutional deprivation.”).
Thomas next requests that the Court consider two affidavits and allow him the
opportunity to resubmit old affidavits that the R&R declined to consider for failing to
comply with the signature and penalty of perjury requirements provided in 28 U.S.C.
However, the two affidavits do not provide any new information that the
Magistrate Judge did not already consider. Those affidavits, authored by two other
Muslims in the jail, state that the jail staff made disparaging comments to Muslims,
treated Muslims negatively, and rejected requests for Islamic services such as Jumu’ah.
(See Pl.’s Objs. to R&R, May 18, 2017, Docket No. 201.) 3 The R&R already considered
substantially similar affidavits.
(See R&R at 7-8, May 8, 2017, Docket No. 198.)
Finally, as to Thomas’s request to resubmit previous affidavits that failed to comply with
28 U.S.C. § 1746, the Magistrate Judge explained that “even if the excluded statements
were considered . . . they are heavily duplicative of information already in the record, and
would not alter the Court’s recommendation.” (Id. at 7 n.5.) Thus, the Court will also
reject Thomas’s second objection.
In conclusion, the Court will overrule Thomas’s objections, adopt the R&R, grant
the defendants’ motion for summary judgment, and deny plaintiffs’ motion for partial
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
The Court OVERRULES Thomas’s Objections [Docket Nos. 199, 201]
and ADOPTS the Report and Recommendation of the Magistrate Judge [Docket
No. 198] as follows:
Although Thomas indicated that he was offering two new affidavits, only the affidavit
of Justin Fenney was attached to that request. (See Pl.’s Objs. to R&R at 3.) However, on that
same date, Thomas filed an affidavit from Carl Putman in a different case he has against many of
the same defendants in this case. (Aff. of Carl Putman, May 18, 2017, Case No. 16-3805,
Docket No. 27.) As the affidavits appear to be substantially similar and were filed on the same
date, the Court will consider the Putman Affidavit for purposes of Thomas’s second objection
a. Thomas’s Motion for Partial Summary Judgment [Docket No. 171] is
b. Defendants’ Motion for Summary Judgment [Docket No. 178] is
c. This action is DISMISSED with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: August 14, 2017
at Minneapolis, Minnesota.
____s/John R. Tunheim ___
JOHN R. TUNHEIM
United States District Court
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