Benson v. Johnson Piper et al

Filing 66

ORDER denying without prejudice 60 Motion to Consolidate Cases, and denying without prejudice 61 Motion to Alter/Amend/Supplement Pleadings. (Written Opinion) Signed by Magistrate Judge Tony N. Leung on 1/25/2019. (EB)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNSOTA

Michael D. Benson,

Case No. 16-cv-509 (DWF/TNL)

Plaintiff,
v.
Ron Fischer, Group Supervisor/Officer of
the Day, et al.,
Defendants. 1

Michael D. Benson,

Case No. 17-cv-266 (DWF/TNL)

Plaintiff,
v.
Emily Johnson Piper, Commissioner of the
Dept. of Human Services, et al.,
Defendants.

ORDER

Michael D. Benson, MSOP, 1111 Highway 73, Moose Lake, MN 55767 (pro se
Plaintiff); and
Aaron Winter and Ralph John Detrick, Assistant Attorneys General, Minnesota
Attorney General’s Office, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128
(for Defendants 2).

1
Benson v. Piper, No. 17-cv-266 (DWF/TNL), 2017 WL 4220446, at *1 n.2 (D. Minn. Sept. 21, 2017) (stating Case
No. 16-cv-509 should be referred to as Benson v. Fischer going forward “to reflect the dismissal of Defendant Emily
Johnson Piper”).
2
Assistant Attorney General Winter has entered an appearance only in Case No. 16-cv-509. Assistant Attorney
General Detrick has entered an appearance in both matters.

1

I. INTRODUCTION
This matter comes before the Court on identical motions to consolidate and amend
filed by Plaintiff in Benson v. Fischer et al., Case No. 16-cv-509 (DWF/TNL) (ECF Nos.
55, 56), and Benson v. Piper et al., Case No. 17-cv-266 (DWF/TNL) (ECF Nos. 60, 61).
II. BACKGROUND
Plaintiff is involuntarily committed to the Minnesota Sex Offender Program
(“MSOP”) run by the State of Minnesota’s Department of Human Services. (See, e.g.,
Compl. ¶ 1, ECF No. 1 in No. 17-cv-266.)
A. ID Lawsuit
In 2016, Plaintiff filed a lawsuit (the “ID Lawsuit”) challenging the identification
badges MSOP requires its clients to wear and alleging that he was retaliated against when
he violated the badge policy by, among other things, being denied food, being handcuffed,
and being subject to an unnecessary strip search. See generally Benson v. Piper, No. 16cv-509 (DWF/TNL), 2016 U.S. Dist. LEXIS 190502 (D. Minn. Dec. 8, 2016) [hereinafter
Benson I], adopting report and recommendation as modified, 2017 U.S. Dist. LEXIS
158017 (D. Minn. Mar. 31, 2017) [hereinafter Benson II].
The ID Lawsuit was brought against 15 defendants in their individual and official
capacities. 3 See generally id. The ID Lawsuit defendants filed motions to dismiss under

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Emily Johnson Piper, Commissioner of the Department of Human Services; Ron Fischer, Group
Supervisor/Officer of the Day; Scott Benoit, Program Manager; Andrea Kosloski, Unit 1-B Director; Doug Wilson,
Primary Therapist; Dr. Debbie Thao, Clinical Supervisor; Kyle Randa, Security Counselor Lead; Scott Gianinni,
Security Counselor Lead; Vaughn Thompson, Security Counselor; Jesse Pruette Security Counselor; P. Jay Siltanen,
Security Counselor; Robert Gresczyk, Jr., Security Counselor; Wendy McGowan, Security Counselor; Tayah
Johnson, Security Counselor; and Nathan Madsen, Security Counselor.

2

Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Id. at *2. Upon resolution
of the motions to dismiss, the following claims remained in the ID Lawsuit: Fourth
Amendment search and seizure based on placement in MSOP’s High Security Area
(“HSA”), being handcuffed, and undergoing a strip search; Fourteenth Amendment
procedural due process based on being detained in the HSA without adequate process; and
Fourteenth Amendment substantive due process relating to the denial of food for three
days. Benson II, 2017 U.S. Dist. LEXIS 158017, at *9-12; Benson I, 2016 U.S. Dist.
LEXIS 190502, at *22-24. Defendant Emily Johnson Piper was dismissed from the ID
Lawsuit as Plaintiff had not adequately pleaded her personal involvement; all of the other
ID Lawsuit defendants remained. Benson II, 2017 U.S. Dist. LEXIS 158017, at *12.
Subsequently, the ID Lawsuit was stayed based on related litigation pending in Karsjens
v. Piper, Case No. 11-cv-3659 (DWF/TNL). (ECF No. 53 in No. 16-cv-509.)
B. Retaliation Lawsuit
In 2017, Plaintiff filed a separate lawsuit (“Retaliation Lawsuit”), alleging that he
had been retaliated against in various ways based on the filing of the ID Lawsuit. Benson
v. Piper, No. 17-cv-266 (DWF/TNL), 2017 WL 4221105, at * 1 (D. Minn. July 31, 2017),
adopting report and recommendation, 2017 WL 4220446 (D. Minn. Sept. 21, 2017). The
Retaliation Lawsuit named nearly 40 defendants in their individual and official capacities, 4

4

Emily Johnson Piper, Commissioner of the Department of Human Services; Shelby Richardson, MSOP Director;
Kevin Moser, Facility Director; Terry Kniesel, Assistant Facility Director; Steve Sadjak, Assistant Facility Director;
Rich O’Conner, Supervisor; Steve Sayovitz, Supervisor; Ron Fischer, Supervisor; Nate Johnson, Supervisor; Mike
Goeglein, Supervisor; Scott Benoit, Program Manager; Lori Aldrin, Officer of the Day; Julianna Beavens, Officer of
the Day; Ryan Fahland, Assistant Supervisor; Randy Gordon, Assistant Supervisor; Andrea Kosloski, Unit 1-B
Director; Brian Ninneman, Unit 1-C Director; Robert Rose, Unit 1-C Director; Kathryn Schesso, Clinical
Supervisor; Jana Korby, Clinical Supervisor; Tara Osbourne, Clinical Supervisor; Nicole Vaineo, Clinical Therapist;
Kyle Randa, Security Counselor Lead; Elizabeth Wyatt, Security Counselor Lead; Derrick Koecher, Security

3

and encompassed at least 25 separate incidents of purported retaliation between June and
December 2016. (See generally Compl., ECF No. 1 in No. 17-cv-266.) Eight of the
Retaliation Lawsuit defendants overlapped with the ID Lawsuit defendants. 5 As best as
the Court is able to tell, Plaintiff’s claims in the Retaliation Lawsuit can generally be
summarized as follows: First Amendment claims for retaliation, free exercise of religion,
and defamation based on false behavior reports; Fourth Amendment claims for
unreasonable searches and seizures based on a search of his room, strip searches of his
person, and placement in more restrictive settings; and Fourteenth Amendment claims for
procedural and substantive due process violations based on his placement in more
restrictive settings. Plaintiff also raised tandem claims under the Minnesota Constitution.
The Retaliation Lawsuit defendants also filed a motion to dismiss under Rules 12(b)(1) and
(6) of the Federal Rules of Civil Procedure. (ECF No. 24 in No. 17-cv-266.) Before the
motion was ruled on, however, the Retaliation Lawsuit was also stayed pending the
Karsjens litigation. (ECF No. 56 in No. 17-cv-266.)
C. Lifting of the Karsjens Stay & Post-Stay Motions
On October 22, 2018, the Honorable John R. Tunheim, Chief District Judge for the
United States District Court for the District of Minnesota, ordered that the stays previously

Counselor Lead; Scott Gianinni, Security Counselor; Brennan Shorter, Security Counselor; Blake Carey, Security
Counselor; Gordon Huhta, Security Counselor; Robert Grescyzk, Jr., Security Counselor; Wendy McGowan,
Security Counselor; Barry Giersdorf, Security Counselor; Chris St. Germain, Security Counselor; Jordan Goodman,
Security Counselor; Sam Brindamor, Security Counselor; Bruce Lind, Security Counselor; Travis Cowell, Security
Counselor; Jenny Collelo, Security Counselor; and Paul Michelizzi, Security Counselor.
5
Emily Johnson Piper, Ron Fischer, Scott Benoit, Andrea Kosloski, Kyle Randa, Scott Gianinni, Robert Gresczyk,
Jr., and Wendy McGowan.

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imposed in these matters be lifted. (ECF No. 54 in No. 16-cv-509; ECF No. 59 in No. 17cv-266.)
On November 7, 2018, Plaintiff filed the subject motions. In his “Motion[s] to
Consolidate,” Plaintiff requests that the ID Lawsuit and the Retaliation Lawsuit be
consolidated into a single case. (ECF No. 55 in No. 16-cv-509; ECF No. 60 in No. 17-cv266.) In his “Motion[s] for Leave to Amend Complaint,” Plaintiff requests leave to file an
amended consolidated complaint for both cases in connection with his motions to
consolidate. (ECF No. 56 in 16-cv-509; ECF No. 61 in 17-cv-266.) The ID Lawsuit and
Retaliation Lawsuit defendants oppose both consolidation and leave to amend. (ECF No.
59 in No. 16-cv-509; ECF No. 63 in No. 17-cv-266.)
III. ANALYSIS
A. Motions to Consolidate
Under Rule 42 of the Federal Rules of Civil Procedure, a district court may
consolidate cases involving a common question of law or fact. Fed. R. Civ. P. 42(a)(2);
see Equal Emp’t Opportunity Comm’n v. HBE Corp., 135 F.3d 543, 550 (8th Cir. 1998)
(“All claims and issues sharing common aspects of law or fact may be consolidated to
avoid unnecessary cost or delay . . . .”); Enter. Bank v. Saettele, 21 F.3d 233, 236 (8th Cir.
1994) (“[A] common issue of law or fact is a prerequisite to consolidation.”). Factors to
consider when deciding whether to consolidate multiple cases include:
[W]hether the specific risks of prejudice and possible
confusion [are] overborne by the risk of inconsistent
adjudications of common factual and legal issues, the burden
on parties, witnesses and available judicial resources posed by
multiple lawsuits, the length of time required to conclude
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multiple suits as against a single one, and the relative expense
to all concerned of the single-trial, multiple-trial alternatives.
Chill v. Green Tree Fin. Corp., 181 F.R.D. 398, 405 (D. Minn. 1998) (alteration in original)
(quoting Cantrell v. GAF, 999 F.2d 1007, 1011 (6th Cir. 1993)); see Horizon Asset Mgmt.
Inc. v. H & R Block, Inc., 580 F.3d 755, 768 (8th Cir. 2009) (consolidation not an abuse of
discretion where “actions involved common parties, overlapping legal issues, and related
factual scenarios, and the consolidation itself did not cause unfair prejudice”).
“Consolidation is inappropriate . . . if it leads to inefficiency, inconvenience, or unfair
prejudice to a party.” HBE Corp., 135 F.3d at 551. “The party seeking consolidation bears
the burden of showing that it would promote judicial convenience and economy.” Osman
v. Weyker, No. 16-cv-908 (JNE/JSM), 2016 WL 10402791, at *3 (D. Minn. Nov. 21, 2016)
(quotation omitted). “District courts enjoy substantial discretion in deciding whether and
to what extent to consolidate cases.” Hall v. Hall, 138 S. Ct. 1118, 1131 (2018).
The ID Lawsuit and Retaliation Lawsuit defendants object to Plaintiff’s request for
consolidation based on the pending motion to dismiss in the Retaliation Lawsuit. Courts
have concluded that consolidation is premature when motions to dismiss are pending.
Osman, 2016 WL 10402791, at *3 (citing cases). Today, the undersigned has issued a
report and recommendation on the motion to dismiss in the Retaliation Lawsuit,
recommending that some of Plaintiff’s claims survive and others be dismissed. (ECF No.
65 in No. 17-cv-266.) While the Retaliation Lawsuit defendants’ motion to dismiss is
pending, it would be premature to consolidate these cases.
10402791, at *3.
6

See Osman, 2016 WL

It is true that the ID Lawsuit and the Retaliation Lawsuit share some common
defendants, some of the facts in the two cases appear to be intertwined, and there appear to
be some similar questions of law in each. Notwithstanding a certain degree of overlap, the
Court is not persuaded at this juncture that consolidation of these cases will increase
efficiency.

Based on the number of defendants involved and incidents at issue,

consolidation may actually lead to confusion of the issues.
Moreover, it is not clear from Plaintiff’s motions how he intends to bring these two
cases together. As discussed in greater detail below, Plaintiff has moved for leave to file
an amended complaint consolidating these lawsuits, but did not include a copy of the
proposed pleading.
The Court recognizes that Plaintiff is attempting to increase efficiency by
consolidating these cases. At this stage, however, with a pending motion to dismiss, any
request for consolidation is premature. Therefore, the Court will deny Plaintiff’s motions
to consolidate without prejudice.
B. Motions to Amend
Plaintiff has also moved for leave to amend, asserting that “[b]y virtue of time and
new case law that governs the issues in these complaints[,] it would benefit both the court,
defendants and Plaintiff to . . . [file a] newly consolidated complaint.” (ECF No. 56 at 2;
accord ECF No. 61 at 2.) Plaintiff did not include a copy of the proposed amended
pleading with his motions to amend. See D. Minn. LR 15.1(b) (“Any motion to amend a
pleading must be accompanied by: (1) a copy of the proposed amended pleading, and (2)
a version of the proposed amended pleading that shows — through redlining, underlining,
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strikeouts, or other similarly effective typographic methods — how the proposed amended
pleading differs from the operative pleading.”).
With the exception of amendments as a matter of course, the Federal Rules of Civil
Procedure permit a party to “amend its pleadings only with the opposing party’s written
consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The Rules further provide that
leave shall be freely given “when justice so requires.” Id. There is, however, no absolute
right to amend and a finding of undue delay, bad faith, dilatory motive, undue prejudice to
the non-moving party, or futility may be grounds to deny a motion to amend. Doe v.
Cassel, 403 F.3d 986, 990-91 (8th Cir. 2005). “The decision whether to grant leave to
amend rests in the discretion of the trial court.” Hanson v. M & I Marshall & Isley Bank,
737 F. Supp. 2d 988, 990 (D. Minn. 2010). “[A] district court does not abuse its discretion
in denying leave to amend where the plaintiff ‘made no motion for leave to amend and did
not explain the substance of his proposed amendment.’”

United States ex rel.

Ambrosecchia v. Paddock Labs., LLC, 855 F.3d 949, 956 (8th Cir. 2017) (quoting
Misischia v. St. John’s Mercy Health Sys., 457 F.3d 800, 805 (8th Cir. 2006)).
While Plaintiff has filed motions for leave to amend, he has not explained the
substance of his proposed amendment(s). Plaintiff has not articulated with any sort of
specificity how he seeks to amend the complaints in these cases, or consolidate them into
a single case. And, Plaintiff has not complied with Local Rule 15.1, which requires that
any motion to amend include a copy of the proposed amended pleading and “a version of
the proposed amended pleading that shows—through redlining, underlining, strikeouts, or
other similarly effective typographic methods—how the proposed amended pleading
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differs from the operative pleading.” D. Minn. LR 15.1(b). Plaintiff’s pro se status does
not excuse him from following the Federal Rules of Civil Procedure and Local Rules of
this Court. See Bennett v. Dr. Pepper/Seven Up, Inc., 295 F.3d 805, 808 (8th Cir. 2002)
(pro se status does not entitle litigant to disregard Federal Rules of Civil Procedure or
court’s local rules); Oprenchak v. Am. Family Mut. Ins. Co., No. 11–cv–425 (PJS/TNL),
2012 WL 1247216, at *15 (D. Minn. Mar. 26, 2012) (“Plaintiff’s pro se status does not
excuse him from following the Federal Rules of Civil Procedure and Local Rules of this
Court.”), adopting report and recommendation, 2012 WL 1253011 (D. Minn. Apr. 13,
2012). Based on the foregoing, the Court will deny Plaintiff’s motions to amend without
prejudice. Plaintiff may bring a proper motion to amend in the future if he wishes to do
so. This way, Plaintiff can present all of his proposed amendments in an organized fashion.
Plaintiff is cautioned that any future motion to amend must comply with Local Rule
15.1 Plaintiff is further cautioned that any proposed amended complaint must meet the
following requirements:
1. The proposed amended complaint must be an entirely new pleading that fully
supersedes, and does not merely supplement, the original complaint.
2. The proposed amended complaint must clearly identify each defendant that
Plaintiff is attempting to sue, specifying whether the defendant is being sued in
his or her personal capacity, official capacity, or both.
3. The proposed amended complaint must include a complete and coherent
description of the historical facts on which Plaintiff’s lawsuit is based.
4. The proposed amended complaint must clearly describe what, specifically, each
named defendant actually did (or failed to do) that allegedly violated Plaintiff’s
rights under federal law.

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5. The proposed amended complaint must clearly describe the specific relief that
Plaintiff is seeking against each defendant.
In sum, any proposed amended pleading must describe the specific factual and legal bases
for the claims in a clear, complete, and well-organized fashion.
IV. ORDER
Based on the files, records, and proceedings herein, IT IS HEREBY ORDERED
THAT:
1. Plaintiff’s “Motion to Consolidate” (ECF No. 55) and “Motion for Leave to
Amend Complaint” (ECF No. 56), filed in Benson v. Fischer et al., Case No. 16cv-509 (DWF/TNL), are DENIED WITHOUT PREJUDICE.
2. Plaintiff’s “Motion to Consolidate” (ECF No. 60) and “Motion for Leave to
Amend Complaint” (ECF No. 61), filed in Benson v. Piper et al., Case No. 17cv-266 (DWF/TNL), are DENIED WITHOUT PREJUDICE.

Date: January 25

, 2019

s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Benson v. Fischer et al.
Case No. 16-cv-509 (DWF/TNL)
Benson v. Piper et al.
Case No. 17-cv-266 (DWF/TNL)

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