Fageroos v. Richardson et al

Filing 53

ORDER ACCEPTING REPORT AND RECOMMENDATION: the Report and Recommendation 50 is ACCEPTED, Defendants' Motion to Dismiss 40 is GRANTED, Plaintiff's Complaint 1 is DISMISSED WITHOUT PREJUDICE, and Defendants' Objection to the January 30, 2019 Order 38 is OVERRULED as MOOT. See Order for specifics. (Written Opinion). Signed by Judge Eric C. Tostrud on 7/12/2019. (RMM) cc: Richard Fageroos, Jr. Modified text on 7/12/2019 (lmb).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Richard Fageroos, Jr.,

File No. 16-cv-04230 (ECT/ECW)

Plaintiff,
v.
Shelby Richardson, Executive Director
Minnesota Sex Offender Program; Kevin
Moser, MSOP-Moose Lake Facility
Director; Blake Carey, Complex, 1-A Unit
Director; Peter D. Puffer, MSOP-Moose
Lake Clinical Director; Rick O’Conner,
Security Counselor; Justina Wandling,
Primary Therapist Unit 1-D; Kelli
Bodie-Miner, Clinical Supervisor Unit 1-D;
Julianna Beavens, Group Supervisor/Office
of the Day; Allison Collins, Primary
Therapist Complex 1-A; Heidi Menard; and
Department of Human Services.

ORDER ACCEPTING REPORT
AND RECOMMENDATION

Defendants.
________________________________________________________________________
Plaintiff Richard Fageroos, Jr., who is civilly committed in the Minnesota Sex
Offender Program (“MSOP”), commenced this action pro se by filing a complaint under
42 U.S.C. § 1983; he alleges several constitutional violations arising out of his 75-day
confinement in the High Security Area (“HSA”), which occurred after he refused to move
to his new room assignment. Compl. [ECF No. 1]. Essentially, Fageroos brings three
varieties of constitutional claims (procedural-due-process and substantive-due process
claims under the Fourteenth Amendment, as well as Fourth Amendment claims), each
premised on two alleged wrongs: (1) his confinement in the HSA and (2) his deprivation

of mail during that confinement.

This case is before the Court on a Report and

Recommendation [ECF No. 50] issued by Magistrate Judge Leo I. Brisbois. Magistrate
Judge Brisbois recommended granting Defendants’ motion to dismiss. R&R at 17–18.
Fageroos has objected to the Report and Recommendation. ECF No. 51. Defendants
responded, arguing that the Report and Recommendation should be adopted in its entirety.
ECF No. 52. Because Fageroos has objected, the Court is required to review the Report
and Recommendation de novo pursuant to 28 U.S.C. § 636(b)(1) and Local Rule
72.2(b)(3). The Court has undertaken that de novo review and has concluded that
Magistrate Judge Brisbois’s analysis and conclusions are correct.
I
A
Magistrate Judge Brisbois correctly concluded that Fageroos’s claims against
Defendants in their official capacities seeking monetary damages should be dismissed for
lack of subject-matter jurisdiction because “Plaintiff has not established that Minnesota has
waived its immunity from damages for any of the claims at issue in this case, nor has
Plaintiff established that Congress abrogated Minnesota’s immunity with respect to any of
the claims at issue.” R&R at 7 (citing Murphy v. State of Ark., 127 F.3d 750, 754 (8th Cir.
1997)). And Fageroos seems to agree with this aspect of the Report and Recommendation.
See Obj. at 2 (“Plaintiff recognizes and understands that he cannot recover damages against
Defendants in their official capacities. . . . If Plaintiff’s claims are barred by sovereign
immunity, then it is certainly true that this case must be summarily dismissed for lack of
subject matter jurisdiction.”). But because this is a dismissal for lack of subject-matter
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jurisdiction, dismissal is properly without, rather than with, prejudice. See, e.g., Gardner
v. Minn., No. 16-cv-03999 (JNE/KMM), 2019 WL 1084714, at *4 (D. Minn. Jan. 19, 2019)
(concluding court lacked subject-matter jurisdiction over § 1983 claims against State of
Minnesota, DHS, and MSOP, as well as claims for monetary damages against individual
defendants in their official capacities, based on Eleventh Amendment sovereign immunity,
and dismissing without prejudice), R&R adopted, 2019 WL 1086338 (D. Minn. Mar. 7,
2019); Benson v. Piper, No. 17-cv-266 (DWF/TNL), 2019 WL 2017319, at *3–4 (D. Minn.
Jan. 25, 2019) (“[T]o the extent Plaintiff seeks monetary damages against Defendants in
their official capacities, the Court recommends that such claims be dismissed without
prejudice.”), R&R adopted, 2019 WL 1307883 (D. Minn. Mar. 22, 2019). The Report and
Recommendation will be modified in this respect. See R&R at 7, 18; see also Hart v.
United states, 630 F.3d 1085, 1091 (8th Cir. 2011) (affirming dismissal for lack of
subject-matter jurisdiction but modifying the dismissal to be without prejudice)
B
Magistrate Judge Brisbois also recommended dismissing Fageroos’s § 1983 claims
against the individual-capacity Defendants for violating his procedural-due-process rights
under the Fourteenth Amendment. R&R at 10. He properly found that even liberally
construing the complaint, Fageroos “failed to allege sufficient facts to support a plausible
claim.” Id. As for Fageroos’s procedural-due-process claim based on his placement and
confinement in the HSA, his only allegation is that his rights were violated because he was
never out of behavioral control as required by MSOP policy. Compl. ¶ 26 [ECF No. 1].
But the Eighth Circuit has recognized that placing a civilly committed individual “in
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seclusion for a short period of time”—there, approximately two hours—based on
“uncooperative” behavior and an inability “to follow directions” is a “reasonable means”
of effectuating a legitimate government objective of “maintaining order and efficiently
managing the facility.” Hall v. Ramsey Cty., 801 F.3d 912, 919–20 (8th Cir. 2015) (finding
no violation of procedural due process under the Fourteenth Amendment). And Fageroos
never alleges that he was deprived of the opportunity to be heard or to appeal the decision
to temporarily place him in the HSA. In fact, his complaint confirms that he received
verbal and written notice of why he was placed in the HSA, and that he chose to remain in
the HSA. See Compl. ¶¶ 10–14, 17 (“Fageroos declined to speak with staff about moving
and remains in the [HSA].”; see also Favors v. Hoover, No. 13-cv-428 (JRT/LIB),
2014 WL 4954687, at *14 (D. Minn. Sept. 30, 2014) (“Instead, the record shows [plaintiff]
received notice and an opportunity to contest his isolation—the sort of process approved
of in cases like Senty-Haugen [v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006)].”). This
holding is consistent with a recent analogous case in the District, Schlumpberger, which
involved another plaintiff who was placed in HSA at MSOP after refusing to move to his
newly assigned room.

See Schlumpberger v. Osborne, No. 16-cv-78 (SRN/TNL),

2019 WL 1118912, at *5–9 (D. Minn. Jan. 25, 2019), R&R adopted, 2019 WL 927322 (D.
Minn. Feb. 26, 2019) (“Even if Schlumpberger’s placement in HSA/Protective Isolation
implicated a protected liberty interest, he fails to allege that he received less process than
he was due.”).
So too with Fageroos’s procedural-due-process claim based on the restriction of his
mail while he was in the HSA. As Judge Brisbois recognized, there are no allegations in
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the complaint about Plaintiff “attempt[ing] to utilize the procedures for appeal of the
temporary restriction of his mail” or that “Defendants prevented him from doing so.” R&R
at 11; accord Green v. Lake, No. 14-cv-1056 (ADM/SER), 2019 WL 1324851, at *6 (D.
Minn. Mar. 25, 2019) (adopting R&R’s dismissal of procedural-due-process claims for
confinement in HSA for more than 24 hours because plaintiff “does not allege any facts to
show that he received less process than was due,” such as “that he invoked MSOP’s
grievance procedure to challenge his HSA placement”).

Accordingly, his

procedural-due-process claims are properly dismissed without prejudice for failure to
state a claim.
C
Fageroos also brings substantive-due-process claims relating to his HSA
confinement and mail restrictions, which Judge Brisbois again recommends dismissing for
failure to state a claim. See R&R at 14–15. It cannot be said that keeping an individual in
HSA for 75 days without mail while offering daily that he could leave confinement for his
new room assignment “rise[s] to the level of being so severely egregious or outrageous as
to demonstrate a brutal and inhumane abuse of power shocking to the conscience.” Benson,
2019 WL 2017319, at *26. “It is well-settled that segregated confinement,” in and of itself,
“is not a hardship that can give rise to an actionable due process claim.” Ahmed v. Fenesis,
No. 05-cv-2388 (JRT/FLN), 2007 WL 2746842, at *9 n.6 (D. Minn. Sept. 19, 2007); see
also Portley-el v. Brill, 288 F.3d 1063, 1065 (8th Cir. 2002) (“We have consistently held
that administrative and disciplinary segregation are not atypical and significant hardships
. . . .”); Kennedy v. Blankenship, 100 F.3d 640, 642–43 & n.2 (8th Cir. 1996) (placement
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in punitive isolation was not an atypical or significant deprivation of liberty, despite
including restrictions in mail, telephone, visitation, commissary, and personal-possession
privileges). Nor is the length of confinement, made lengthy only because of Fageroos’s
own choices, “so ‘atypical and significant’ to trigger the protections of the Due Process
clause.”

Haggins v. Minn. Comm’r of Corrections, Civ. No. 10-1002 (DWF/LIB),

2011 WL 4477320, at *4 (D. Minn. July 5, 2011) (collecting cases supporting fact that
19-month punitive segregation was not a due-process violation), R&R adopted, 2011 WL
4477319 (D. Minn. Sept. 27, 2011). Again, this holding is consistent with District
precedent applying the Fourteenth Amendment to a nearly identical fact pattern. See
Schlumpberger, 2019 WL 1118912, at *9–11 (dismissing substantive-due-process claim
for implausibility because even though the HAS “implicates Plaintiff’s interest in being
free from unnecessary bodily restraint,” he did not allege conscience-shocking treatment”).
D
Finally, the Report and Recommendation recommends dismissing Fageroos’s claim
for an unconstitutional seizure in violation of the Fourth Amendment based on his detention
in the HSA. First, Fageroos argues that the first 24-hour detention was unconstitutional
because he was not out of behavioral control. But “[t]he decision to place a civilly
committed individual in HSA is presumptively valid if made by a professional,” Youngberg
v. Romeo, 457 U.S. 307, 323 (1982), and Fageroos “alleges no facts to show that his
confinement in HSA was a departure from accepted practice or was not based on
professional judgment,” Green, 2019 WL 1324851, at *5. Fageroos also argues that it was
unconstitutional to detain him for more than 24 hours when was not out of behavioral
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control. But the record—including allegations in Fageroos’s own complaint—supports
Defendants’ position that Fageroos was authorized to leave the HSA the very same day he
was placed therein. See Compl. ¶ 12; Resp. at 5; see also R&R at 15. It was Fageroos who
refused to leave the HSA because he refused to move to his newly assigned room, “and
thus, he voluntarily chose to remain in the HSA.” R&R at 15. He continued to choose to
remain in the HSA despite being asked if he was ready to leave on a daily basis. Id. Such
a voluntary decision does not form the basis for a Fourth Amendment claim. Id. at 15–16
(citing Florida v. Bostick, 501 U.S. 429, 439 (1991) (“The Fourth Amendment proscribes
unreasonable searches and seizures; it does not proscribe voluntary cooperation.”)).
What’s more, like Magistrate Judge Brisbois and the Schlumpberger court concluded, the
violation of a liberty interest in this context is more properly viewed through the lens of a
due-process claim. See R&R at 16; Schlumpberger, 2019 WL 1118912, at *12; see also
Whipple v. Edwards, No. 13-cv-2861 (JRT/HB), 2019 WL 2016782, at *11 (D. Minn.
Jan. 14, 2019) (dismissing Fourth Amendment claim for 100-day confinement at MSOP,
reasoning that the Fourth Amendment Claim fails for the same reasons as plaintiff’s
procedural and substantive due-process claims), R&R adopted in relevant part, 2018 WL
1324862 (D. Minn. Mar. 25, 2019).
Magistrate Judge Brisbois also concluded that the temporary restriction of
Fageroos’s mail did not implicate his property rights under the Fourth Amendment. R&R
at 16. Fageroos has not cited, nor has the Court independently located, any precedent for
assessing a mail-deprivation claim under the Fourth Amendment. See id. Like the
Magistrate Judge concluded, “the Eighth Circuit has consistently held that temporarily
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withholding mail from confined persons is constitutional.”

Id. (citations omitted).

Fageroos objects that “75 days is not temporary,” Obj. at 15, but there is ample authority
that mail deprivations for similar or greater periods of time are constitutional (albeit under
different constitutional provisions). See, e.g., Little v. Norris, 787 F.2d 1241, 1243 (8th
Cir. 1986) (noting that “[t]he purpose of withholding personal mail is to make punitive
isolation unpleasant, and thereby discourage improper behavior and promote security
within the prison”); cf. Gregory v. Auger, 768 F.3d 287, 289 (8th Cir. 1985) (concluding
60-day withholding of mail did not violate First Amendment, and noting that “the
Reformatory could properly have established mail procedures far more restrictive than this,
so long as the disciplinary withholding of mail was only to be temporary), cert. denied,
474 U.S. 1035 (1985); Jackson v. Brookhart, 640 F. Supp. 241, 242 (S.D. Iowa 1986)
(citing Gregory and affirming constitutionality of withholding mail for 286 days while
plaintiff was in isolation).

And even if mail deprivation could implicate Fourth

Amendment property rights, Defendants would be entitled to qualified immunity because
it was not clearly established that such a deprivation was unconstitutional. Fageroos’s
Fourth Amendment claims will therefore be dismissed without prejudice for failure to state
a claim.
E
In his objection, Fageroos refers to several new claims that were understandably not
addressed by the Report and Recommendation. Specifically, he references his entitlement
to a pre-deprivation hearing before being placed in the HSA, Obj. at 8, and a First
Amendment right to send and receive mail, Obj. at 13. Generally, a plaintiff cannot add
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allegations to his complaint through a brief. See Morgan Distrib. Co., 868 F.2d 992, 995
(8th Cir. 1989). And even if the Court were to liberally construe Fageroos’s brief as an
implicit motion to amend, that motion would be denied as futile because those claims
would fail to state a claim. See Lansing v. Wells Fargo Bank, N.A., 894 F.3d 967, 973–74
(8th Cir. 2018) (“Although leave to amend shall be given freely when justice so requires,
see Fed. R. Civ. P. 15(a)(2), a district court properly denies leave when a proposed
amendment would be futile.”). As in Schlumpberger, Fageroos has not alleged (in his
original complaint or in his objection) how not receiving a hearing prior to being placed in
the HSA constituted punishment. 2019 WL 1118912, at *8; see also Yazzi v. Moser,
No. 12-cv-399 (PAM/JJK), 2014 WL 3687110, at *3 (“At most, [the MSOP] Plaintiffs
have asserted that they were entitled to a hearing before being detained. Yet they do not
go further, as they must, and allege how being denied a hearing under the circumstances
constituted punishment.”).
Fageroos also references his “claim of violation of First Amendment right to send
and receive mail and a claim of retaliation for his exercise of his First Amendment rights.”
Obj. at 13. As Defendants correctly argue in their responsive brief, “[t]hese arguments
must be disregarded because his Complaint did not assert a First Amendment claim . . . .
[a]nd, in any event, Gregory, 768 F.2d at 289[,] and Jackson, 640 F. Supp. at 242[,] rejected
similar First Amendment arguments.” Resp. at 4 n.4. These claims raised for the first time
in Fageroos’s objection are futile as well. See, e.g., Jackson v. Riebold, 815 F.3d 1114,
1123 (8th Cir. 2016) (affirming district court’s denial of pro se party’s motion for leave to
amend his complaint as futile).
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II
Also pending before the Court is Defendants’ appeal [ECF No. 28] of Magistrate
Judge Brisbois’s January 30, 2019 Order [ECF No. 34] striking without prejudice
Defendants’ first motion to dismiss [ECF No. 10]. Judge Brisbois struck the first motion
to dismiss as filed in error based in part on confusion over which defendants were
represented by defense counsel, and in which capacities (individual or official). See ECF
No. 34 at 1–2. The gist of the order is that if the Minnesota Attorney General’s Office
represents to the Court that it accepts service on behalf of a named defendant, it is accepting
service as to the entirety of the complaint—in other words, that service of process for
purposes of acquiring personal jurisdiction is effected on a named defendant only once,
even if the complaint asserts both individual- and official-capacity claims. See id. at 3–4.
Defendants requested permission to file a motion for reconsideration [ECF No. 36], which
Magistrate Judge Brisbois denied [ECF No. 39], and filed an appeal to this Court [ECF
No. 38]. But a week after objecting, Defendants re-filed their motion to dismiss, this time
clarifying that it was filed on behalf of all Defendants in their individual and official
capacities. Compare ECF No. 10 at 1 (first motion signed by “Attorney for Defendants
Beavens, Bodie-Miner, Carey, Collins, Moser, O’Connor, Puffer and Wandling,” but not
Defendants Richardson, Menard, and DHS) and ECF No. 13 at 1 n.1 (supporting
memorandum stating that “the undersigned represents Defendants Beavens, Bodie-Miner,
Carey, Collins, Moser, O’Connor, Puffer and Wandling . . . in their individual and official
capacities”), with ECF No. 40 at 1 (second motion signed by “Attorney for Defendants,”
without limitation) and ECF No. 42 at 5–9 (addressing claims against all Defendants,
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including Richardson, Menard, and DHS). In fact, Defendants’ appeal expressly notes that
“the [Attorney General’s Office] now represents all Defendants in their individual and
official capacities.” Obj. at 1 n.1.
This renders Defendants’ appeal of Magistrate Judge Brisbois’s order moot.
“When, during the course of litigation, the issues presented in a case lose their life because
of the passage of time or a change in circumstances . . . and a federal court can no longer
grant effective relief, the [matter] is considered moot.” Cromeans v. Morgan Keegan &
Co., 859 F.3d 558, 565 (8th Cir. 2017) (first alteration in original) (citation and internal
quotation marks omitted). When an issue becomes moot, courts must “refrain from
reaching the merits because any opinion issued would be merely advisory.” Missouri
ex rel. Nixon v. Craig, 163 F.3d 482, 484 (8th Cir. 1998); see also Ali v. Cangemi, 419 F.3d
722, 723 (8th Cir. 2005) (en banc) (“If an issue is moot in the Article III sense, we have no
discretion and must dismiss the action for lack of jurisdiction.”). This issue is the
quintessential definition of mootness, leaving nothing for the Court to decide: whether the
Court affirms or reverses the order, defense counsel now represents all Defendants. It is
unclear, if not impossible, what effectual relief the Court could grant to the Defendants
even by sustaining their objection and reversing Magistrate Judge Brisbois’s order. See
Hernandez v. Holder, 760 F.3d 855, 862 (8th Cir. 2014) (“Because it would be impossible
to grant [appellant] relief were we to decide this issue in his favor, we conclude it is
moot.”).
Defendants have not addressed the mootness issue, beyond alerting the court to the
facts potentially implicating mootness, nor raised any exceptions to the mootness doctrine.
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See Obj.; cf. Craig, 163 F.3d at 484 n.3 (“The mootness doctrine is of such importance that
it is the duty of counsel to bring to the federal tribunal’s attention . . . facts that may raise
a question of mootness.” (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 68
n.23 (1997))). Although this service-of-process and representation-and-indemnification
issue for state officials is certainly “capable of repetition,” it does not appear to be of the
type that would evade review. After all, it is conceivable that in some (if not many) future
cases the Attorney General’s Office would intend to only accept service of process for a
defendant in his or her official capacity, and subsequent developments could lead the Court
to conclude or assume that same defendant was represented in both the official and
individual capacities, when really the Attorney General’s Office intended to deny
representation and indemnification under Minn. Stat. § 3.736, subd. 9. And as Magistrate
Judge Brisbois’s Order noted, he was “aware that in other cases [currently pending in the
District] . . . counsel for the employees of the State of Minnesota” had discussed the process
by which the Attorney General’s Office handles representation and indemnification. See
Order at 4–5 (citing Letter, Branson v. Moser, No. 16-cv-2802 (WMW/LIB) (D. Minn.
Jan. 26, 2017), ECF No. 21).
The Court therefore does not accept or reject the conclusion that by accepting
personal service of summonses the Minnesota Attorney General’s Office represents to the
Court that it represents all defendants, in both their official and individual capacities; nor
does it express any opinion about whether such a rule is required by, compatible with, or
in conflict with, Minn. Stat. § 3.736, subd. 9, or Fed. R. Civ. P. 4(j)(2)(B). See Obj. at 5.
Those questions are left for another day when a decision will make a difference. See
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Erickson Transport Corp. v. I.C.C., 741 F.2d 1096, 1098 (8th Cir. 1984) (stating “it no
longer matters whether we agree with [appellant] on its second issue” because the court’s
“decision on that issue would make no difference,” whichever way it went, and the court
“do[es] not sit to decide moot questions or render advisory opinions”).
ORDER
Therefore, based upon all of the files, records, and proceedings in the
above-captioned matter, IT IS HEREBY ORDERED that:
1.

The Report and Recommendation [ECF No. 50] is ACCEPTED with the

additional analysis provided herein;
2.

Defendants’ Motion to Dismiss [ECF No. 40] is GRANTED; and

3.

Plaintiff’s Complaint [ECF No. 1] is DISMISSED WITHOUT

PREJUDICE.
4.

Defendants’ Objection to the January 30, 2019 Order [ECF No. 38] is

OVERRULED as MOOT.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: July 12, 2019

s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court

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