Jackson v. Ossell et al
Filing
116
ORDER denying 90 Plaintiff's Motion for Recusal, Disqualification, and Transfer of Venue; denying 101 Plaintiff's Request to Serve Party ; denying 102 Plaintiff's Motion to Reassign Case, Motion for Tort Claim, and Motion for Hearing; and granting 103 Plaintiff's Motion to Make My Complaint Not Protection. (Written Opinion) Signed by Chief Judge John R. Tunheim on 5/16/2019. (HAZ)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
HOWARD G. JACKSON,
Civil No. 17-5483 (JRT/BRT)
Plaintiff,
v.
DAVID OSSELL and MELISSA
GUNDERSON,
ORDER ON MOTION FOR
RECUSAL
Defendants.
Howard G. Jackson, 153 Emerson Avenue East, Number 204, West St. Paul,
MN 55118, pro se plaintiff.
Stephen J. Christie, 15 West Kellogg Boulevard, Suite 750, St. Paul, MN
55102, for Defendant David Ossell.
Plaintiff Howard G. Jackson brought this action against Defendants David Ossell,
Melissa Gunderson and the Ramsey County Human Services Department. The Ramsey
County Human Services Department was subsequently dismissed from this action. (Am.
Order, Apr. 30, 2018, Docket No. 17.) The claims against Ossell and Gunderson in their
official capacities were also dismissed. (Id.) The only remaining claim is one based on 42
U.S.C. § 1983, and is brought against Ossell and Gunderson in their individual capacities.
Jackson alleges that Ossell and Gunderson violated his Fourth Amendment right to be free
from unreasonable searches and seizures. (See Compl. at 3, Dec. 18, 2017, Docket No. 1;
Ex., Feb. 20, 2018, Docket No. 6.) Jackson seeks damages for emotional harm. (Compl.
at 4.)
Currently before the Court is Jackson’s Motion for Recusal of Magistrate Judge
Becky R. Thorson and Chief Judge John R. Tunheim. (Mot. for Recusal at 3, March 1,
2019, Docket No. 90.) Jackson also seeks to have Defendants’ attorneys disqualified and
removed from the case. (Id.) Alternatively, Jackson seeks to change the venue. (Id. at 4.)
The Court will deny Jackson’s Motion in its entirety because Jackson has failed to show
why he is entitled to such actions.
DISCUSSION
Jackson alleges the following facts: 1
Some time in 2012, Jackson received full physical custody over his daughter, N.E.W. (See
Aff. of Howard G. Jackson (“Jackson Aff.”) at 2, Sept. 5, 2018, Docket No. 48.) After receiving
full custody of N.E.W., Jackson spoke to his probation officer, M.B., about his receiving custody
of N.E.W. (Id. at 2-3.) M.B., unsure whether Jackson could have full custody of N.E.W. due to a
sex offense committed by Jackson when he was a minor, informed Jackson that he would be
contacting the Ramsey County Human Services Department (“Human Services”) to get the correct
1
Jackson complains that the Court has not received nor reviewed his documents. The
Court lays out Jackson’s allegations to show him that it has received and reviewed every document
he has filed. Although the Court does so, it does not adopt these allegations as true, nor as the
facts of the case going forward.
Although not specifically referenced here, the Court has reviewed Jackson’s latest
submissions, including his multiple demands, letters, and objections in Docket Nos. 91-99. None
of these documents require action from the Court, and some, such as Jackson’s Notices to Sue
(Docket Nos. 95, 98) appear to be complaints. The Magistrate Judge has previously denied
Jackson’s Motion to Amend his complaint, and as noted by the Magistrate Judge, the operative
complaint going forward is Jackson’s original complaint filed at Docket No. 1. (Order at 9, Jan.
24, 2019, Docket No. 83.)
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answer. (Id. at 3-4.) Even after receiving full custody of N.E.W., Jackson never had actual custody
of her because he never had the chance to get N.E.W. from her mother. (Id. at 4.)
After M.B. reported to Human Services, Jackson received a call from Gunderson, a
Human Services social worker, requesting to meet at Jackson’s apartment to talk about
N.E.W. and whether Jackson was fit to be a parent. (Id. at 6.) Jackson declined to meet at
his apartment. (Id.) Despite this, Gunderson and Ossell came to Jackson’s apartment while
he was out. (See id. at 18.) Gunderson and Ossell informed the landlord of Jackson’s
apartment, Greg Mach, that they needed to check within Jackson’s apartment. (Id. at 9.)
Mach asked if they had a warrant, and they responded that they did not have one. (Id.)
Mach then declined to let them into the apartment. (Id.) Gunderson and Ossell then
informed Mach that they would leave to get a warrant, and that Mach could get into trouble
should there be a child in danger within the apartment. (See id.) Mach then allowed
Gunderson and Ossell into Jackson’s apartment without Jackson’s consent and without a
warrant. (Id. at 9-10.)
Jackson later returned to his apartment and discovered that the lock on his door had
been changed. (Id. at 11.) When Jackson asked Mach why the locks had been changed,
Mach explained that he was evicting Jackson because Gunderson and Ossell told him that
Jackson was a registered sex offender. (Id. at 12.) Eventually, however, Mach agreed not
to evict Jackson. (Id. at 13.)
The next day, Jackson went to see Gunderson at her office. (Id. at 14.) When
Jackson asked Gunderson why she and Ossell went to his apartment, she looked lost. (Id.
at 16.) Jackson was informed that N.E.W. had already been placed on hold, and had a
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scheduled hearing in front of a court. (Id. at 17; Mot. to Am. Compl., Ex. 1, Oct. 26, 2018,
Docket No. 53-1.) At the hearing, Jackson explained the circumstances of Ossell and
Gunderson’s visit to his home, but the court decided that because he is a registered sex
offender, he could not have custody of N.E.W. (Jackson Aff. at 18-20.)
Jackson filed two CDs with the Court. (Notice of Evidence (“First CD”), March 29,
2018, Docket No. 11-1; Notice (“Second CD”), Apr. 25, 2018, Docket No. 14-2.) The first
CD contains an audio file of a discussion between Jackson and a Child Welfare employee.
(First CD.) Jackson asks why Child Welfare intervened despite a nine-year gap between
his last offense and the date Jackson received custody of N.E.W. (Id.) The employee
explained that Child Welfare Services is statutorily obligated to make those reports. (Id.)
Jackson then asked why “you guys”—presumably Child Welfare—went to his house
without permission. (Id.) The employee was unable to answer this question because she
was not present during the incident. (Id.) When pressed, the employee offered that, had
she been in the same situation, she would not have entered Jackson’s house. (Id.)
The second CD also contained an audio file. (Second CD.) This audio file contains
a discussion between Jackson and Judy Hanson, an attorney for the Saint Paul City
Attorney’s office who was representing Ossell. (Id.) In the discussion, Jackson says that
he received a letter from the Saint Paul City Attorney’s Office. (Id.) It arrived after a
deadline to respond to the letter. (Id.) The envelope carrying the letter was addressed to
1350 Saint Clair, even though that was not Jackson’s residence, but the letter itself
contained Jackson’s correct address at Emerson Avenue. (Id.) Hanson explained that her
secretary might have made a mistake and that the 1350 Saint Clair address was the one
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listed on Jackson’s Complaint. (Id.) Hanson then went on to explain that she would be
filing a motion to dismiss, and needed to have a discussion with Jackson before doing so.
(Id.)
I.
MOTION FOR RECUSAL
Jackson moves to have the Court and Magistrate Judge Thorson removed from this
case. A court should recuse from a matter if the Court's “impartiality might reasonably be
questioned.” 28 U.S.C. § 455. The Court should recuse if it is shown that the Court has a
personal bias or prejudice arising from an extrajudicial source. Rossbach v. United States,
878 F.2d 1088, 1089 (8th Cir. 1989) (citing United States v. Jones, 801 F.2d 304, 312
(8th Cir. 1986)); see also Liteky v. United States, 510 U.S. 540, 551 (1994) (extrajudicial
source is not the only basis for establishing disqualifying bias or prejudice, but is the most
common basis). Judicial rulings alone almost never constitute a valid basis for a bias or
partiality motion for disqualification. Liteky, 510 U.S. at 555.
A.
Magistrate Judge Thorson
As to Judge Thorson, Jackson makes two allegations that he believes calls into
question Judge Thorson’s impartiality. First, Jackson alleges that he requested sanctions
for spoliation, but Judge Thorson denied it. Second, Jackson alleges that Judge Thorson’s
judicial assistant refuses to let Jackson speak directly to Judge Thorson. Neither of these
acts show that Judge Thorson is partial in any way. The Court notes that the evidence
Jackson claims was spoiled—the two CDs he filed with the court—are in the Court’s
possession, and the Court has fully reviewed and listened to both CDs. As for Jackson’s
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inability to directly reach Judge Thorson, it is not the practice of courts to allow parties to
speak directly to a Judge outside of the courtroom in any case. Jackson has not shown any
basis for Magistrate Judge Thorson’s recusal.
B.
The Court
Jackson also makes two allegations that he believes calls into question the Court’s
impartiality. First, Jackson alleges that when he requests copies of documents he filed with
the District of Minnesota Clerk’s Office (“Clerk’s Office”), he is denied access to them.
Second, the Court’s judicial assistant refuses to let Jackson speak directly to the Court. The
first allegation does not call into question the Court’s impartiality because the Court is not
involved with parties’ filings, and the Clerk’s Office is a separate entity from the Court.
As noted above, the second allegation does not call into question the Court’s impartiality.
Thus, the Court will deny Jackson’s Motion for Recusal.
II.
MOTION FOR DISQUALIFICATION
Jackson also requests that the Court disqualify the Defendants’ attorneys. “A party's
right to select its own counsel is an important public right and a vital freedom that should
be preserved; the extreme measure of disqualifying a party's counsel of choice should be
imposed only when absolutely necessary.” Macheca Transp. Co. v. Philadelphia Indem.
Co., 463 F.3d 827, 833 (8th Cir. 2006) (quoting Banque Arabe Et Internationale
D’Investissement v. Ameritrust Corp., 690 F. Supp. 607, 613 (S. D. Ohio 1988).
A motion to disqualify counsel filed by the opposing party faces strict judicial review. See
Harker v. Comm’r of Internal Revenue, 82 F.3d 806, 808 (8th Cir. 1996) (“Because of the
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potential for abuse by opposing counsel, disqualification motions should be subjected to
particularly strict judicial scrutiny.”) (internal citation omitted).
Jackson has only made loose allegations that Ossell’s attorney tampered with
evidence, filed false reports, and covered up illegal activities. 2
Further, Jackson
conclusorily alleges a conflict of interest, but does not explain who is involved, nor the
conflict. Jackson has failed to show any evidence that entitles him to the extreme remedy
of disqualification of an opposing party’s attorney, and the Court will deny Jackson’s
Motion for Disqualification.
III.
MOTION TO TRANSFER
A party may move to transfer under 28 U.S.C. § 1404(a). Section 1404(a) states
“[f]or the convenience of the parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division where it might have been
brought.” Id. The purpose of § 1404(a) is “to prevent the waste of time, energy and money
and to protect litigants, witnesses and the public against unnecessary inconvenience and
expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal quotation marks
omitted). “[T]he party seeking a transfer under section 1404(a) typically bears the burden
of proving that a transfer is warranted.” Terra Int'l, Inc. v. Miss. Chem. Corp., 119 F.3d
688, 695 (8th Cir. 1997).
2
Jackson appears to allege that Ossell’s attorney tampered with evidence when a proposed
order was mailed to Jackson with Ossell’s motion to dismiss. (See Mot. to Reassign at 4, Apr. 3,
2019, Docket No. 102.) The Court notes, however, that it is normal practice for a party to submit
a proposed and unsigned order with any motion it files. This is not tampering with evidence.
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In considering a motion brought under § 1404(a), courts are to balance “(1) the
convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of
justice.” Id. at 691. These factors merit “individualized, case-by-case consideration,” in
which courts “weigh in the balance a number of case-specific factors.” Stewart Org., Inc.
v. Ricoh Corp., 487 U.S. 22, 29 (1988). The movant must “show that the balancing of
the . . . factors strongly favors transfer.” Brockman v. Sun Valley Resorts, Inc., 923 F.Supp.
1176, 1179 (D. Minn. 1996) (internal quotation marks omitted).
Jackson argues that—due to the misconduct and/or conflicts of interest of Ossell’s
attorney, the Magistrate Judge, and the Court—his case should be transferred to a different
venue if his “situation can’t be handle[d].” (Mot. for Recusal at 4.) Because Jackson fails
to show misconduct or conflicts of interest, Jackson also fails to show a transfer is
warranted. Jackson also fails to show that it would be more convenient for the parties or
witnesses, or in the interest of justice to transfer his case. Furthermore, Jackson has not
specified which court he would like his case transferred to, thus the Court is unable to
balance the three factors above. Thus, the Court will deny Jackson’s Motion to Transfer.
IV.
OBJECTION TO REASSIGNMENT OF CASE 19-CV-741
On March 18, 2019, Jackson filed another case (19-CV-741), alleging a host of
constitutional violations. (See Compl., Case No. 19-cv-741, Mar. 18, 2019, Docket No. 1.)
That case was originally assigned to United States District Court Judge Michael J. Davis.
The case was subsequently reassigned to the Court. Jackson objects to this reassignment.
(Mot. to Reassign, Apr. 3, 2019, Docket No. 102.)
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Although the case has been reassigned, it is still its own separate case. The merits
of this case (17-CV-5483) and Jackson’s other case (19-CV-741) will be heard and decided
separately.
The reassignment was done to conserve judicial economy and make
administration of Jackson’s cases more efficient.
Accordingly, the Court will deny
Jackson’s objections.
V.
REQUEST FOR A HEARING
Jackson requests a hearing. It is unclear which motion or motions he would like
heard at such a hearing. Regardless, the Court has sufficient information from Jackson’s
filings and briefs to make a ruling on Jackson’s motions without a hearing. The request
will be denied.
VI.
REQUEST FOR RELIEF AS TO TORT CLAIM
Jackson requests that the Court “[t]ake care of [his] Tort Claim and Spoliation
Jugement [sic] payment.” (Mot. to Reassign at 1.) The Court cannot resolve Jackson’s
tort claim at this stage because such a resolution would require a motion from either party,
or a trial. Jackson’s spoliation allegation was addressed above.
VII.
MOTION TO UNSEAL COMPLAINT
Jackson, in a self-styled Motion to Make My Complaint In My Lawsuit Not
Protection (Meaning) Public For Everyone, which the Court construes as a motion to
unseal, moves to have the Court unseal his Complaint. (Mot. to Make My Compl. Not
Protection at 1, Apr. 3, 2019, Docket No. 103.) The Complaint was filed as a sealed
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document because it references a minor. The Court will order the Complaint to be filed
unsealed subject to certain redactions to protect the identity of the minor named in the
Complaint. All mentions of the minor’s name, whether in full or only in part, shall be
redacted.
VIII. SERVICE ON MELISSA GUNDERSON
Jackson also requests permission to serve Minnesota House Speaker, Melissa
Hortman, because, he believes, she is the Melissa Gunderson that worked for Child
Protective Services and entered his apartment in 2012. (Request to Serve Party, Apr. 1,
2019, Docket No. 101.) Jackson cites no evidence to show that this allegation is plausible.
(Id.) Speaker Hortman is not a named defendant in this case, thus, the Court will deny
Jackson’s request to serve her.
Furthermore, the Magistrate Judge gave Jackson a deadline of thirty days from
January 24, 2019, to serve Gunderson. (Order at 5, Jan. 24, 2019, Docket No. 84.) It is
now beyond the thirty days, and Jackson has failed to serve Gunderson.
Properly effected service of process is a fundamental element to any lawsuit.
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). Defects in
service of process are jurisdictional in nature. “If a defendant is improperly served, a
federal court lacks jurisdiction over the defendant.” Printed Media Servs., Inc. v. Solna
Web, Inc., 11 F.3d 838, 843 (8th Cir. 1993). Rule 4(m) provides the following:
If a defendant is not served within 90 days after the complaint
is filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against
that defendant or order that service be made within a specified
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time. But if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate
period.
Fed. R. Civ. P. 4(m). “The plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m)[.]” Fed. R. Civ. P. 4(c)(1); see King v. Dingle,
No. 08-5922, 2009 WL 2208164, at *1 (D. Minn. July 22, 2009) (adopting Report and
Recommendation) (“[I]t is the Plaintiff’s responsibility to provide a proper address to
effectuate service of process, and attempts to effectuate service cannot be considered good
cause to grant an extension of time for that service.”); see also Petrucelli v. Bohringer and
Ratzinger, 46 F.3d 1298, 1307 (3d Cir. 1995) (“[R]eliance upon a third party or on a process
server is an insufficient basis to constitute good cause for failure to timely serve, and is
also an insufficient basis for granting an extension of time to effect service.”).
The Court allowed additional time for service well beyond the 90 days provided for
in Rule 4(m), and Plaintiff has neither provided the necessary information for service, nor
has he provided good cause for the continued failure. Thus, the Court will dismiss
Gunderson from the case without prejudice.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff’s Motion for Recusal, Disqualification, and Transfer of Venue
[Docket No. 90] is DENIED.
2. Plaintiff’s Request to Serve Party [Docket No. 101] is DENIED.
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3. Plaintiff’s Motion to Reassign Case, Motion for Tort Claim, and Motion for
Hearing [Docket No. 102] is DENIED.
4. Plaintiff’s Motion to Make My Complaint Not Protection [Docket No. 103]
is GRANTED. Jackson’s Complaint [Docket No. 1] is unsealed subject to
the foregoing redactions.
DATED: May 16, 2019
at Minneapolis, Minnesota.
______
______
JOHN R. TUNHEIM
Chief Judge
United States District Court
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