Jefferson v. Roy et al
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION (Written Opinion). Signed by Judge Wilhelmina M. Wright on 09/28/2017. (TJB)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Bobby Earl Jefferson, Jr.,
Case No. 16-cv-3137 (WMW/SER)
ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND
Tom Roy, Minnesota Department of
Corrections, Chris Pawelk, Roy Witte,
Minncorr Industries, John R. King, Bruce
Reiser, 3M, Stillwater Prison Officials, Jeff
Lonsky, Steve Hammer, Terry Carlson,
Carol Krippner, Reena Solheid, Alice
Remillard, Anthony Forchas, and Arthur
This matter is before the Court on the July 28, 2017 Report and Recommendation
(R&R) of United States Magistrate Judge Steven E. Rau.
recommends granting the motion to dismiss of Defendant 3M, granting the motion to
dismiss of Defendants Tom Roy—in both his official and individual capacity—
Minnesota Department of Corrections, MINNCOR Industries, and all individual state
employees in their official capacities (collectively the State Defendants). The R&R also
recommends granting the motion to dismiss of Defendant Terry Carlson in her individual
capacity, and permitting Plaintiff Bobby Earl Jefferson, Jr., the opportunity to cure
certain service defects. Jefferson filed timely objections to the R&R, and the State
Defendants responded.1 Because Jefferson’s amended complaint states a plausible claim
for relief against Defendant Roy in his individual capacity, the Court rejects the R&R’s
conclusion that the State Defendants’ motion to dismiss be granted on that basis. The
Court adopts the R&R’s remaining recommendations.
Because the R&R provides a detailed factual and procedural history, the Court
briefly summarizes the background of this litigation. Jefferson worked in the metal
foundry while incarcerated at the Minnesota Department of Corrections facility in
Stillwater, Minnesota (DOC-Stillwater), from approximately June 1, 2015, to February 1,
2016. Jefferson alleges that he was exposed to harmful toxins while working at the metal
foundry and that he suffered numerous physical injuries.
According to Jefferson,
Defendants were aware of the risk of exposure, conspired with one another to conceal the
exposure, and continued to expose foundry workers. On September 21, 2016, Jefferson
initiated this lawsuit under 42 U.S.C. § 1983, alleging that Defendants’ actions violated
the Eighth Amendment, Fifth Amendment, and Fourteenth Amendment to the United
States Constitution. Jefferson seeks $1 million in damages. 3M, the State Defendants,
and Terry Carlson in her individual capacity move to dismiss Jefferson’s complaint for
failure to state a claim on which relief can be granted.
On August 24, 2017, Jefferson filed a motion to permit supplemental objections.
(Dkt. 67.) But Jefferson cites no authority in support of supplementing previously
submitted objections to an R&R after the deadline to object. For these reasons, the Court
will not consider this untimely submission.
To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege sufficient
facts, when accepted as true, that state a facially plausible claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The factual allegations need not be detailed, but they
must be sufficient to “raise a right to relief above the speculative level” in order to “state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007). When determining whether a complaint states a claim for relief that is
plausible on its face, a district court accepts as true all factual allegations in the complaint
and draws all reasonable inferences in the plaintiff’s favor. Blankenship v. USA Truck,
Inc., 601 F.3d 852, 853 (8th Cir. 2010).
Jefferson’s Objections to the R&R
Jefferson objects to the R&R’s recommendations that the Court grant 3M’s motion
to dismiss and the motions to dismiss of Defendants Roy and Carlson in their individual
capacities. The Court reviews these determinations 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), and addresses Jefferson’s objections in turn.
The R&R recommends granting 3M’s motion to dismiss because Jefferson fails to
plausibly allege that 3M is a state actor. Jefferson objects, arguing that he alleges
“pervasive entwinement” [sic] between 3M and state actors that is sufficient to sustain his
constitutional claims against 3M.
Under 42 U.S.C. § 1983, private parties may be liable for constitutional violations
only when they willfully participate in joint activities with a state or its agents. See
Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir. 2001). Without
more, a contract between a private entity and a state actor is insufficient to convert a
private entity’s actions to those of a state actor. See Rendell-Baker v. Kohn, 457 U.S. 830,
843 (1982). Instead, a nexus must exist between the actions of the private entity and the
fulfillment of a traditional government function. See, e.g., West v. Atkins, 487 U.S. 42,
54-57 (1988) (finding nexus in circumstances in which private physician contracted to
provide prison inmates medical care).
Here, even if 3M were aware of the allegedly harmful work conditions at the metal
foundry at DOC-Stillwater and provided DOC-Stillwater with 3M respirators, Jefferson
fails to allege that 3M was responsible for, or had any authority to address, the work
conditions at DOC-Stillwater. Although Jefferson alleges that 3M must have been aware
of the harmful conditions, Jefferson alleges no facts that create a plausible nexus between
3M’s actions and the fulfillment of a traditional government function such that 3M bore
any responsibility for ensuring that DOC-Stillwater inmates worked in a safe
Therefore, the Court overrules Jefferson’s objection to this aspect of the R&R and
adopts the R&R’s recommendation to grant 3M’s motion to dismiss.
Roy and Carlson in their Individual Capacities
The R&R also recommends granting the motions to dismiss of Defendants Roy
and Carlson in their individual capacities. Jefferson objects, arguing that he alleges that
Defendant Roy was directly aware of the unlawful conduct of his subordinates and that
all Defendants acted in concert with one another.
To state a plausible claim for relief against a defendant supervisor in the
defendant’s individual capacity, a plaintiff must allege that a government official directly
participated in a constitutional violation or failed to train or supervise the offending actor
who caused the deprivation. Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010). A
defendant in a supervisory position may be liable for a failure to supervise when the
defendant’s “corrective inaction amounts to deliberate indifference to or tacit
authorization of the violative practices.” Choate v. Lockhart, 7 F.3d 1370, 1376 (8th Cir.
1993) (internal quotation marks omitted).
The R&R determines that Jefferson fails to allege “when or in what manner Roy
became aware of [his subordinate] Hammer’s allegedly unlawful conduct.” For that
reason, the R&R concludes, Jefferson’s allegations against Roy are conclusory and fail to
state a claim. The Court disagrees. Jefferson’s factual details need only state a claim for
relief that is plausible and not speculative. Fed. R. Civ. P. 8(a); Twombly, 550 U.S.
Jefferson alleges that Steve Hammer, the acting warden at DOC-Stillwater,
“through omission and manipulative record-keeping practices, knowingly gave OSHA
misleading, false reports and purposefully omitted vital information to continue exposing
Mr. Jefferson to the [aforementioned] toxins, under color of law and knowledge of Tom
Roy.” (Emphasis added.) According to Jefferson’s allegations, Roy not only had personal
knowledge of toxic exposure, but Roy also knew that the acting warden at DOCStillwater was engaging in deceptive practices to ensure that toxic exposure would
continue. Because Jefferson’s allegations are more than a conclusory statement that Roy
engaged in unlawful actions or failed to supervise his subordinates, Jefferson’s
allegations state a plausible claim for relief. The Court sustains Jefferson’s objection as
to Roy in his individual capacity.
Jefferson makes no allegations of any kind as to Carlson, however. Jefferson
merely lists Carlson as a defendant to this action. In his objections to the R&R, Jefferson
argues that he alleges “all Defendants acted in concert,” invoking the term “all defendants”
as a means of efficient pleading. But to survive a motion to dismiss, Jefferson must
allege sufficient facts that, if true, state a plausible claim to relief. Iqbal, 556 U.S. at 678.
Because Jefferson alleges no facts addressing the conduct of Carlson, Jefferson’s
objection is overruled as to Carlson.
Accordingly, the Court sustains in part and overrules in part Jefferson’s objections,
denies the State Defendants’ motion to dismiss Jefferson’s claims against Roy in his
individual capacity, and grants Carlson’s motion to dismiss.
Recommendations of the R&R to Which No Objections Were Filed
The R&R recommends several other dispositions to which no party objects.
Specifically, the R&R recommends granting the State Defendants’ motion to dismiss
certain claims as barred by the Eleventh Amendment and recommends resolving issues
related to the service of Jefferson’s complaint on certain defendants. No party objects to
In the absence of timely objections, the Court reviews a Report and
Recommendation for clear error. See Grinder, 73 F.3d at 795; see also Fed. R. Civ.
P. 72(b) advisory committee’s note (“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.”). Having reviewed the R&R, the Court finds no clear error as to
any issue on which the parties have not objected.
Based on the foregoing analysis, the R&R, and all the files, records and
proceedings herein, IT IS HEREBY ORDERED:
Plaintiff Bobby Earl Jefferson, Jr.’s objections to the R&R, (Dkt. 66), are
SUSTAINED IN PART AND OVERRULED IN PART, as outlined herein.
Plaintiff Bobby Earl Jefferson, Jr.’s motion to file supplemental objections
to the R&R, (Dkt. 67), is DENIED.
The July 28, 2017 R&R, (Dkt. 65), is REJECTED to the extent it
recommends dismissing the claims against Defendant Tom Roy in his individual capacity.
The R&R is ADOPTED with respect to the remaining issues addressed therein.
The State Defendants’ First Motion to Dismiss, (Dkt. 11), is DENIED AS
Defendant 3M’s Motion to Dismiss, (Dkt. 17), is GRANTED.
The State Defendants’ Second Motion to Dismiss, (Dkt. 35), is GRANTED
IN PART AND DENIED IN PART, as outlined herein.
Defendant Terry Carlson’s Motion to Dismiss, (Dkt. 52), is GRANTED.
The outstanding service issues are to be resolved, consistent with 28 U.S.C.
§ 1915(d), in the following manner:
a. The Clerk’s Office is ordered to provide Plaintiff Bobby Earl Jefferson,
Jr., Marshal Service Forms for each of the following defendants: John R.
King, Bruce Reiser, Chris Pawelk, Roy Witte, and Jeff Lonsky.
b. Within twenty-one (21) days after this Order, Jefferson must submit a
properly completed Marshal Service Form (USM-285) for King, Reiser,
Pawelk, Witte, and Lonsky, failing which the action will be dismissed
as to those defendants without prejudice for failure to prosecute
pursuant to Fed. R. Civ. P. 41(b).
c. If Jefferson complies with these requirements in a timely manner, the
Clerk of Court is directed to seek the waiver of service from Defendants
King, Reiser, Pawelk, Witte, and Lonsky in their personal capacities,
consistent with Fed. R. Civ. P. 4(d). If a defendant sued in his or her
personal capacity fails without good cause to sign and return a waiver
within 30 days of the date that the waiver is mailed, the Court will
impose upon that defendant the expenses later incurred in effecting
service of process. Absent a showing of good cause, reimbursement of
the costs of service is mandatory and will be imposed in all cases in
which a defendant does not sign and return a waiver of service form.
See Fed. R. Civ. P. 4(d)(2).
d. A copy of this Order, the July 28, 2017 R&R, (Dkt. 65), the Amended
Complaint, (Dkt. 27), and its attachment, (Dkt. 27-1), shall be served
together with the Notice of Lawsuit and Request to Waive Service of a
Summons and Waiver of the Service of Summons.
e. Each defendant on whom service of process is properly effected, and
each defendant who waives service, will be required to file a response to
Jefferson’s Amended Complaint.
Dated: September 28, 2017
s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge
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