Daywitt v. Minnesota Department of Human Services et al

Filing 37

ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION (Written Opinion). Signed by Judge Wilhelmina M. Wright on 05/23/17. (TJB)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Kenneth Steven Daywitt, and others
similarly situated,

Case No. 16-cv-2541 (WMW/LIB)

Plaintiff,
ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND
RECOMMENDATION

v.
Minnesota Department of Human Services,
Minnesota Sex Offender Program, Emily
Johnson Piper, Jannine Hebert, Peter
Puffer, Jim Berg, Jerry Fjerkenstad, and
Katherine Lockie, in their individual and
official capacities,
Defendants.

Plaintiff Kenneth Steven Daywitt1 challenges a policy of the Minnesota Sex
Offender Program (MSOP) that requires Daywitt to participate in his treatment group on
certain religious holy days during which work is proscribed for adherents to his faith.
Defendants filed a motion to dismiss. Currently before the Court are the February 6,
2017 Report and Recommendation (R&R) of United States Magistrate Judge Leo I.
Brisbois, (Dkt. 25), addressing the motion to dismiss, and Defendants’ objections to the
R&R, (Dkt. 26). For the reasons addressed below, the Court overrules Defendants’
1

The caption of Daywitt’s complaint indicates that Daywitt is asserting claims on
behalf of himself “and others similarly situated.” The complaint contains no allegations
related to other plaintiffs, however, and a pro se litigant may not maintain claims on
behalf of a purported class. See Knoefler v. United Bank of Bismarck, 20 F.3d 347, 348
(8th Cir. 1994) (stating that a nonlawyer “has no right to represent another entity . . . in a
court of the United States”); Greene v. Hanners, No. 10-546, 2010 WL 3033762, at *3
(D. Minn. Mar. 25, 2010) (“[I]t is well settled that pro se litigants . . . are not permitted to
maintain class actions . . . .”).

objections, adopts in part and rejects in part the R&R, and grants in part and denies in
part Defendants’ motion to dismiss.
BACKGROUND
Daywitt, an adherent of the Orthodox Jewish faith, is civilly committed to MSOP
in Moose Lake, Minnesota. Daywitt’s religion proscribes its adherents from working on
certain holy days. As part of his treatment at MSOP, Daywitt participates in treatment
groups with the goal of being released from MSOP in the future. Daywitt alleges that he
has requested that his absences from treatment group activities be excused on holy days
during which he is prohibited from working. Those requests have been denied, and his
absences have been unexcused.
Daywitt brought this lawsuit, alleging that MSOP and its employees have violated
his constitutional and statutory rights by refusing to excuse his absences from his
treatment group on religious holidays. Daywitt asserts claims against the Minnesota
Department of Human Services, MSOP, and six named defendants, all in their official
and individual capacities.2

Daywitt asserts claims against each defendant under 42

U.S.C. § 1983 for violations of his rights guaranteed by the First and Fourteenth
Amendments to the United States Constitution and under both the Religious Land Use
and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc et seq., and the

2

The named defendants are Emily Johnson Piper, Commissioner of the Department
of Human Services; Jannine Hebert, Clinical Executive Director of MSOP; Peter Puffer,
Clinical Director of MSOP-Moose Lake; James Berg, Assistant Executive Director of
MSOP; Jerry Fjerkenstad, Assistant Clinical Director of MSOP-Moose Lake; and
Katherine Lockie, Assistant Clinical Director of MSOP-Moose Lake.
2

Minnesota Constitution. Daywitt seeks an award of compensatory and punitive damages,
along with injunctive and declaratory relief.
Defendants move to dismiss Daywitt’s complaint “in its entirety.”

But in

Defendants’ memorandum in support of the motion to dismiss, counsel for Defendants
states that she “currently represents all individually-named Defendants in their official
capacities and anticipates representing them in their individual capacities once the
indemnification process is complete.” Yet nothing in counsel’s notice of appearance
limits that appearance to representing the individually named Defendants only in their
official capacities. To the contrary, the notice states that “the undersigned enters her
appearance as counsel for Defendants.”
The R&R recommends that the Court grant in part and deny in part Defendants’
motion to dismiss.

Specifically, the R&R recommends that Count 2—alleging

substantive due process and equal protection violations under Section 1983—and
Count 3—requesting compensatory, injunctive and declaratory relief—be dismissed in
their entirety. As to Count 1—alleging violations of the First Amendment, RLUIPA, and
the Minnesota Constitution under Section 1983—the R&R recommends dismissal of all
claims against MSOP and the Minnesota Department of Human Services, all claims
asserted under RLUIPA, and all claims asserted under the Minnesota Constitution. The
R&R also recommends dismissal of Daywitt’s Section 1983 claims against Defendants

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Puffer, Fjerkenstad, and Lockie and against all of the named defendants in their official
capacities to the extent Daywitt seeks monetary damages.3
ANALYSIS
I.

Defendants’ Objections to the R&R
Defendants raise two objections to the R&R. First, Defendants contend that

Daywitt’s claims against Berg in his official capacity should be dismissed because the
complaint does not plausibly allege that Berg implemented the challenged policy or had
the authority to rescind the policy. Second, Defendants assert that the Court lacked
jurisdiction over the named defendants in their individual capacities when the R&R was
issued because those defendants had not been properly served. The Court reviews each
issue de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); LR 72.2(b)(3);
Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam).
A.

Claims Against Defendant Berg in His Official Capacity

Defendants first object to the R&R’s recommendation that the Court deny their
motion to dismiss Daywitt’s claims against Berg in his official capacity. Defendants
argue that because Daywitt has not alleged that Berg has the authority to modify the
challenged policy, the allegations against Berg must be dismissed.
To establish liability under Section 1983 in an official-capacity lawsuit, a plaintiff
must show that the official either acted “pursuant to an unconstitutional governmental
3

Based on the R&R’s recommendation, Daywitt’s claims under Section 1983
alleging violations of his First Amendment rights would remain to the extent they seek
compensatory damages and injunctive relief against Defendants in their individual
capacities and injunctive relief against Defendants Piper, Hebert and Berg in their official
capacities.
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policy or custom” or “possessed final authority over the subject matter at issue and used
that authority in an unconstitutional manner.” Nix v. Norman, 879 F.2d 429, 433 (8th
Cir. 1989). “[S]tate officials may be sued in their official capacities for prospective
injunctive relief when the plaintiff alleges that the officials are acting in violation of the
Constitution or federal law.” Mo. Child Care Ass’n v. Cross, 294 F.3d 1034, 1037 (8th
Cir. 2002). Contrary to Defendants’ argument, a Section 1983 plaintiff is not required to
sue only a state official with authority to change an allegedly unconstitutional policy. See
Nix, 879 F.2d at 433.
Daywitt alleges that MSOP’s policy requires MSOP clients who are adherents of
the Orthodox Jewish faith to attend treatment groups on religious holy days when work is
proscribed by their religion.

Daywitt also alleges that MSOP imposed negative

consequences when Daywitt refused to attend treatment group on holy days in
observance of his faith. In the only paragraph of the complaint that expressly addresses
Berg, Daywitt alleges that Berg “implemented, carried out and retained a practice or
procedure that inhibited [Daywitt] from practicing his faith to the fullest.” Because these
allegations state a claim for relief against Berg, the Court overrules Defendants’ objection
and adopts the R&R’s conclusion that Defendants’ motion to dismiss Daywitt’s claim for
prospective injunctive relief against Berg should be denied.
B.

Personal Jurisdiction over Defendants in Their Individual Capacities

Defendants also assert that the Court lacked personal jurisdiction over Piper,
Hebert, Puffer, Berg, Fjerkenstad, and Lockie in their individual capacities when the
R&R issued because those defendants had been served in their official capacities but not

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in their individual capacities. Defendants contend that the magistrate judge therefore
lacked jurisdiction to recommend a disposition of Daywitt’s claims against the named
Defendants in their individual capacities.
A federal court lacks personal jurisdiction over a defendant who has not been
properly served unless the defendant voluntarily appears or waives defective service.
Sieg v. Karnes, 693 F.2d 803, 807 (8th Cir. 1982). Here, each Defendant appeared by
counsel on November 14, 2016.

The notice of appearance did not limit counsel’s

appearance to Defendants in their official capacities. Having appeared by counsel before
the magistrate judge issued recommendations as to the disposition of certain claims
against them in their individual capacities, Defendants waived any objection that the
Court lacked personal jurisdiction over them. Consequently, the Court overrules this
objection and adopts the R&R’s recommendations as they pertain to Defendants in their
individual capacities.
II.

Recommendations to Which No Objections Were Filed
The R&R reaches conclusions on several other issues to which neither party

objects. Specifically, the R&R recommends that the Court (1) dismiss with prejudice
Daywitt’s claims against the Minnesota Department of Human Services and MSOP;
(2) dismiss with prejudice all Section 1983 claims for monetary damages against
Defendants in their official capacities; (3) dismiss without prejudice all Section 1983
claims against Defendants Puffer, Fjerkenstad, and Lockie in their official capacities;
(4) dismiss without prejudice claims for punitive damages under Section 1983 against
Defendants in their individual capacities; (5) dismiss without prejudice Daywitt’s

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RLUIPA claim; (6) dismiss with prejudice Daywitt’s claim based on alleged violations of
the Minnesota Constitution; (7) dismiss without prejudice Daywitt’s Section 1983 claim
based on alleged violations of the Equal Protection Clause of the Fourteenth Amendment;
and (8) dismiss with prejudice Daywitt’s Section 1983 claim based on alleged violations
of his substantive due process rights under the Fourteenth Amendment.
The Court reviews for clear error those portions of the R&R to which no objection
was filed. See Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 amendment
(“When no timely objection is filed, the court need only satisfy itself that there is no clear
error on the face of the record in order to accept the recommendation.”); Grinder, 73 F.3d
at 795.
Having reviewed the portions of the R&R to which neither party objected, the
Court concludes that the Section 1983 claims against Defendants Puffer, Fjerkenstad, and
Lockie in their official capacities should not be dismissed, as a Section 1983 plaintiff
need not sue only those officials who are empowered to change an allegedly
unconstitutional policy. See Part I.A, supra. Defendants correctly assert that Daywitt’s
allegations against Puffer, Fjerkenstad, and Lockie are indistinguishable from the
allegations against Berg. And for that reason, the same error that is present as to Berg
also is present as to Puffer, Fjerkenstad, and Lockie. The R&R erroneously concludes
that Daywitt’s allegations against Puffer, Fjerkenstad, and Lockie fail to state a plausible
claim on which relief can be granted because Daywitt does not allege that those
defendants have the authority to change MSOP’s policy. Therefore, Defendants’ motion
to dismiss is denied as to Daywitt’s Section 1983 claim alleging violations of his First

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Amendment rights to the extent Daywitt seeks prospective injunctive relief against
Defendants Puffer, Fjerkenstad, and Lockie in their official capacities.
The R&R’s remaining conclusions, however, are not clearly erroneous and are
adopted.
ORDER
Based on the R&R, the foregoing analysis and all the files, records and
proceedings herein, IT IS HEREBY ORDERED:
1.

Defendants’ objections to the R&R, (Dkt. 26), are OVERRULED.

2.

The R&R, (Dkt. 25), is ADOPTED IN PART and REJECTED IN

PART, as set forth herein.
3.

Defendants’ motion to dismiss, (Dkt. 8), is GRANTED IN PART and

DENIED IN PART, as follows:
a. All of Plaintiff’s claims against MSOP and the Minnesota Department
of Human Services are DIMISSED WITH PREJUDICE.
b. Plaintiff’s Section 1983 claims for compensatory and punitive damages
against Defendants in their official capacities are DISMISSED WITH
PREJUDICE.
c. Plaintiff’s Section 1983 claim for punitive damages against all named
Defendants in their individual capacities is DISMISSED WITHOUT
PREJUDICE.
d. Plaintiff’s claim based on RLUIPA is DISMISSED WITHOUT
PREJUDICE.

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e. Plaintiff’s claim based on alleged violations of the Minnesota
Constitution is DISMISSED WITH PREJUDICE.
f. Plaintiff’s Section 1983 claim based on alleged violations of the
Fourteenth Amendment’s guarantee of equal protection is DISMISSED
WITHOUT PREJUDICE.
g. Plaintiff’s Section 1983 claim based on alleged violations of the
Fourteenth Amendment’s substantive due process provision is
DISMISSED WITHOUT PREJUDICE.

Dated: May 23, 2017

s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge

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