Nicolaison v. Hennepin, County of

Filing 11

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION: the Court OVERRULES Plaintiffs Objections 9 and ADOPTS the Report and Recommendation of the Magistrate Judge 8 . IT IS HEREBY ORDERED that: Plaintiff's applications to proceed in forma pauperis 2 & 3 are DENIED. Plaintiff's motion for appointment of counsel 4 is DENIED. Plaintiff's motion for service of process 5 is DENIED. This action is DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B). (Written Opinion) Signed by Chief Judge John R. Tunheim on 1/29/2018. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Civil No. 17-4769 (JRT/DTS)

WAYNE NICOLAISON,
Plaintiff,

MEMORANDUM
OPINION AND ORDER
ADOPTING REPORT
AND RECOMMENDATION

v.
COUNTY OF HENNEPIN,
Defendant.

Wayne Nicolaison, 1111 Highway 73, Moose Lake, MN 55767, pro se
plaintiff.

Plaintiff Wayne Nicolaison has filed this 42 U.S.C. § 1983 action against
Hennepin County, Minnesota, alleging that his indefinite civil commitment under the
Minnesota Sex Offender Program (“MSOP”) is unconstitutional. Magistrate Judge David
T. Schultz recommended that Nicolaison’s claim be dismissed without prejudice pursuant
to 28 U.S.C. § 1915 because it is barred by Heck v. Humphrey, 512 U.S. 477 (1994).
Nicolaison objects that Heck does not apply because this is a § 1983 action, not a Habeas
action. This objection misunderstands Heck, which applies exclusively to § 1983 actions.
Because judgment in Nicolaison’s favor would necessarily imply the invalidity of his
commitment, Heck applies to bar his claim. Thus, the Court will overrule Nicolaison’s
objections, adopt the R&R, and dismiss the case without prejudice.

BACKGROUND
Wayne Nicolaison pled guilty to criminal sexual misconduct in 1980 and 1984, in
each case for raping a woman at knifepoint – and having committed the latter crime while
on parole for the first. See Nicolaison v. Erickson, 65 F.3d 109, 110 (8th Cir. 1995). He
repeatedly harassed female prison staff during his incarceration. Id. As a result of his
psychopathic personality, he was civilly committed under the Minnesota Sex Offender
Program in 1992. (Compl. at 3, Oct. 23, 2017, Docket No. 1.) 1 Nicolaison alleges that
this commitment violates his Due Process rights because it is based solely on his risk of
reoffending. (Id.) He also alleges violations of the Double Jeopardy and Ex Post Facto
Clauses. (Id. at 4.) He seeks $1 million in damages per year of commitment. (Id.)
This action is the latest in a series brought by Nicolaison, including most recently
a substantively-identical § 1983 case against Hennepin County that was dismissed
because it was barred by Heck. (See Compl. at 3-4, Apr. 24, 2017, Civil No. 17-1354,
Docket No. 1; Order, July 11, 2017, Civil No. 17-1354, Docket No. 9.) Before that,
Nicolaison brought a Habeas petition that he voluntarily dismissed after the Magistrate
Judge recommended dismissing it as an improper successive petition. (See Order, July
11, 2017, Civil No. 16-2777, Docket No. 20; R. & R., June 21, 2017, Civil No. 16-2777,
Docket No. 17 (discussing Nicolaison’s three previous unsuccessful Habeas petitions).)
Now, in considering Nicolaison’s pending application to proceed in forma
pauperis, the Magistrate Judge concluded that his latest § 1983 claim is also barred by

1

Record citations refer to the present case, Civil No. 17-4769, unless otherwise noted.

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Heck, and that it would be barred as an improper successive petition if the Court were to
recharacterize it as a Habeas claim. (Report & Recommendation (“R&R”) at 4, Dec. 12,
2017, Docket No. 8.) Nicolaison objects. (Objs., Dec. 18, 2017, Docket No. 10.)
DISCUSSION
I.

STANDARD OF REVIEW
Upon the filing of a report and recommendation by a magistrate judge, “a party

may serve and 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
district judge must determine de novo any part of the magistrate judge’s disposition that
has been properly objected to.” Fed. R. Civ. P. 72(b)(3); accord D. Minn. LR 72.2(b)(3).
II.

ANALYSIS
Nicolaison first objects that the Magistrate Judge recommended dismissal of the

Complaint because the Court has previously heard his claim. But in fact, the Magistrate
Judge recommended dismissal because Heck bars Nicolaison’s claim.

Nicolaison’s

objection to that conclusion is therefore the sole question before the Court. 2
It is worthwhile to quote the Supreme Court’s holding in Heck at some length:
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or

2

Nicolaison also objects that his Complaint is not barred as a successive Habeas petition
because it is not a Habeas petition. This objection misunderstands the R&R and is therefore
without merit. The Magistrate Judge merely explained that, if the Court were to recharacterize
Nicolaison’s pro se Complaint as a Habeas petition, the action would still be barred.

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sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas
corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983. Thus, when a
state prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.
512 U.S. at 487. Heck applies to civilly-committed persons as well as prisoners. See
Karsjens v. Piper, 845 F.3d 394, 406 (8th Cir. 2017), cert. denied, 138 S. Ct. 106 (2017).
Nicolaison’s objection that Heck does not apply because he has not brought a
Habeas action misunderstands the crux of the doctrine. Heck applies to § 1983 actions,
not Habeas petitions. Because Nicolaison cannot demonstrate that his commitment has
been invalidated, his § 1983 action is barred by Heck if judgment in his favor would
necessarily imply the invalidity of his commitment. 512 U.S. at 487. Moreover, because
courts look to the “essence” of the claim rather than the relief sought, Heck applies “even
if the claim is for damages rather than earlier release.” Sheldon v. Hundley, 83 F.3d 231,
233 (8th Cir. 1996); cf. Karsjens, 845 F.3d at 406 (holding that Heck does not bar claims
seeking the relief of “regular, periodic assessment reviews to determine if [plaintiffs]
continue to meet the standards for civil commitment” because such assessments may
conclude that “none of the plaintiffs [are] eligible for release”).

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Nicolaison alleges that his civil commitment violates his Due Process rights, the
Double Jeopardy Clause, and the Ex Post Facto Clause. Nicolaison insists that he is not
seeking his release, but rather $1,000,000 in damages per year of civil commitment.
Nonetheless, the essence of Nicolaison’s claim is the allegation that he was unjustly
deprived of his liberty. Nicolaison focuses his argument on this point, alleging that he
“was entitled to his liberty upon the claim of [the] presumption of innocence.” (Mem.
Supp. Objs. at 7, Dec. 18, 2017, Docket No. 10.) Indeed, if Nicolaison is correct that his
ongoing commitment is unconstitutional, he would necessarily have to be released. See
Sheldon, 83 F.3d at 233-34. As such, judgment for Nicolaison would necessarily imply
the invalidity of his commitment, and Heck squarely bars his claim.
“A claim squarely barred by Heck from the face of the complaint is frivolous.”
Ehlers v. U.S. Navy, No. 16-30, 2016 WL 1592478, at *3 (D. Minn. Mar. 14, 2016)
(collecting cases), R. & R. adopted sub nom. Edwin v. U.S. Navy, No. 16-30, 2016 WL
1559136 (D. Minn. Apr. 18, 2016). For the purposes of an in forma pauperis application,
a frivolous claim must be dismissed. 28 U.S.C. § 1915(e)(2)(B). And, though Nicolaison
obliquely objects to dismissal of his action without service on the defendant, the Eighth
Circuit has stated clearly that the provisions of 28 U.S.C. § 1915(e) allow for dismissal
without service. Carter v. Schafer, 273 Fed. App’x 581, 582 (8th Cir. 2008) (per curium).
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES Plaintiff’s Objections [Docket No. 9] and ADOPTS the Report and

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Recommendation of the Magistrate Judge [Docket No. 8]. IT IS HEREBY ORDERED
that:
1.

Plaintiff’s applications to proceed in forma pauperis [Docket Nos. 2 & 3]

are DENIED.
2.

Plaintiff’s motion for appointment of counsel [Docket No. 4] is DENIED.

3.

Plaintiff’s motion for service of process [Docket No. 5] is DENIED.

4.

This action is DISMISSED without prejudice pursuant to 28 U.S.C.

§ 1915(e)(2)(B).
LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: January 29, 2018
at Minneapolis, Minnesota.

_______ s/John R. Tunheim______
JOHN R. TUNHEIM
Chief Judge
United States District Court

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