Jackson v. Axtell et al

Filing 11

MEMORANDUM AND OPINION denying 3 Application to Proceed in District Court without Prepaying Fees or Costs; denying 4 Motion to Move Ahead Faster; accepting 7 Report and Recommendation; overruling 9 Motion to Consider my Lawsuit; denying 9 Motion to Leave to Amend the Complaint; dismissing 6 Amended Complaint. (Written Opinion). Signed by Judge Eric C. Tostrud on 11/8/2018. (RMM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Howard Glen Jackson, Jr.,

File No. 18-cv-01073 (ECT/SER)

Plaintiff,
v.
Chief Todd Axtell, St. Paul Police Chief;
Agent Drew Evans, Superintendent at
Bureau of Criminal Apprehension; and
Mark Elliott, Supervisor for Predatory
Probation Officers,

MEMORANDUM OPINION
AND ORDER

Defendants.

Plaintiff Howard Glen Jackson, Jr. (“Jackson”) filed this lawsuit pro se. Giving him
the benefit of the doubt, Jackson asserts two claims. First, he seeks relief under 42 U.S.C.
§ 1983 from a condition or conditions of release imposed upon him as the result of a
Minnesota state-court conviction. Second, he seeks relief for injuries stemming from an
allegedly improper disclosure of information regarding that conviction, though he does not
specify the law that is the source of this claim. Jackson filed his original complaint on
April 23, 2018. ECF No. 1. In response to an order identifying deficiencies with Jackson’s
original complaint [ECF No. 5], Jackson filed an amended complaint on July 9 (“Am.
Compl.”) [ECF No. 6].
In a September 11, 2018 Report and Recommendation (“R&R”) [ECF No. 7],
Magistrate Judge Steven E. Rau recommended this action be dismissed without prejudice,
Jackson’s application to proceed in forma pauperis (“IFP”) [ECF No. 3] be denied, and
Jackson’s “Motion To Move Ahead faster” [ECF No. 4] be denied as moot. In a nutshell,

Magistrate Judge Rau concluded that a United States Supreme Court decision, Heck v.
Humphrey, 512 U.S. 477 (1994), bars Jackson’s challenge to his conditions of release; that
Jackson’s improper-disclosure claim lacks a federal basis; and that it would be improper
for the Court to exercise supplemental jurisdiction over any remaining state-law claims
Jackson may wish to assert. R&R at 2–4. In turn, these conclusions warranted denial of
Jackson’s IFP application and his separate motion for a “faster” resolution. See id. at 4.
On September 25, Jackson responded to the R&R by filing a document entitled “Motion to
Consider My lawsuit, or Motion to leave do it over And Sued the State of M.N,”
(“September 25 Filing”) [ECF No. 9], and accompanying exhibits [ECF No. 10].
The standards governing review of the R&R are clear:
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).
“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).
“The objections should specify the portions of the magistrate judge’s report
and recommendation to which objections are made and provide a basis for
those objections.” Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774, at
*2 (D. Minn. Sept. 28, 2008). Objections which are not specific but merely
repeat arguments presented to and considered by a magistrate judge are not
entitled to de novo review, but rather are reviewed for clear error.” See, e.g.,
Martinez v. Astrue, No. 10-5863, 2011 WL 4974445, at *3 (E.D. Pa. Oct. 19,
2011) (citing cases from numerous other jurisdictions); Fed. R. Civ. P. 72
advisory committee’s note, subd. (b) (“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.”).
Montgomery v. Compass Airlines, LLC, 98 F. Supp. 3d 1012, 1017 (D. Minn. 2015); see
also United States v. Gaye, No. 14-cr-344(1) (JRT/FLN), 2015 WL 8751477, at *2 (D.
Minn. Dec. 14, 2015) (recognizing that “conclusory and generic objections” to a report and
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recommendation result in “clear error review”). When the party responding to an R&R is
pro se, their documents are entitled to liberal construction. Erickson v. Pardus, 551 U.S.
89, 94 (2007).
Even construed liberally, Jackson’s September 25 Filing and accompanying exhibits
do not meet the specificity required by Fed. R. Civ. P. 72(b)(2) for objections to trigger de
novo review. The documents repeat factual allegations made in Jackson’s original and
amended complaints, but the R&R does not reach contrary factual findings. Neither the
filing nor the exhibits mention the R&R. Neither contains an argument directed to the
R&R’s legal conclusions. Though Jackson captions the September 25 Filing a “Motion to
. . . do it over,” he does not explain how he would do things over to correct the problems
the R&R identified with his lawsuit.
The Court nonetheless has reviewed the R&R de novo and accepts it because its
recommendations are correct under the law. As Magistrate Judge Rau noted in the R&R,
Jackson alleges that he is subject to conditions of release following his state-court
conviction. R&R at 2; see Am. Compl. at 2. These conditions are described vaguely but
seem to include a requirement that he register his address with law enforcement
periodically or, if he were to become homeless, report to a local police station weekly.
R&R at 2 n.1; Am. Compl. at 2–3. Jackson alleges that these conditions have been
wrongfully extended due to an alleged probation violation. Am. Compl. at 3; September
25 Filing at 2–4. He says the conditions were set to expire originally in 2018 but now are
being imposed upon him until 2024. Am. Compl. at 3–4; September 25 Filing at 2–3.

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Jackson seeks “freedom” from the conditions as well as monetary damages under
42 U.S.C. § 1983. Am. Compl. at 1, 3, 8.
In the R&R, Magistrate Judge Rau concluded that Heck v. Humphrey precludes
Jackson from challenging his conditions of release under § 1983. R&R at 2–3. In Heck,
the Supreme Court held that “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 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.” 512 U.S. at 486–87
(footnote omitted). In other words, if a judgment in favor of a § 1983 plaintiff “would
necessarily imply the invalidity of his conviction or sentence,” then “the complaint must
be dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated.”

Id. at 487.

This has become known as the

“favorable-termination rule,” Entzi v. Redmann, 485 F.3d 998, 1003 (8th Cir. 2007), and
in Heck, the Supreme Court made clear that “the principle barring collateral attacks—a
longstanding and deeply rooted feature of both the common law and our own
jurisprudence—is not rendered inapplicable by the fortuity that a convicted criminal is no
longer incarcerated,” 512 U.S. at 490 n.10.
Jackson does not allege that his conviction or sentence meets Heck’s
favorable-termination rule. In other words, he does not suggest that his conviction or
sentence has been reversed on direct appeal, expunged by executive order, declared invalid
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by a state court, or called into question through federal-court habeas proceedings.
Therefore, Heck bars his claims if the judgment Jackson seeks would necessarily imply the
invalidity of his “conviction or sentence.” 512 U.S. at 486. As Magistrate Judge Rau
correctly concluded, Jackson’s claim would necessarily imply the invalidity of his
sentence. R&R at 3. Jackson alleges that the registration requirements he challenges were
imposed upon him as part of the sentence1 for his state-court conviction, see Am. Compl.
at 2–4, and he seeks to invalidate those parts of his sentence in this suit. Heck, therefore,
bars his claim.
It is true that courts have expressed seemingly different views regarding whether
Heck’s favorable-termination rule applies to all § 1983 claims challenging conditions of
release. Compare, e.g., Williams v. Hollaren, No. 16-cv-552 (WMW/SER), 2017 WL
513926, at *5 (D. Minn. Jan. 11, 2017), report and recommendation adopted, 2017 WL
507215 (D. Minn. Feb. 7, 2017) (“[T]his Court finds that challenges to modification for
conditions of supervised release are Heck-barred when those modifications have not been
‘reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus’”
(citing Heck, 512 U.S. at 489)), with Shannon v. Roy, No. 11-cv-3262 (JRT/FLN), 2012
WL 3779145 at *3 (D. Minn. Aug. 15, 2012), report and recommendation adopted, 2012
WL 3779212 (D. Minn. Aug. 31, 2012) (“The relief [plaintiff] seeks is removal of the
conditions of house arrest, curfew, and limited contact with his fiancée from his supervised

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Conditions of release, such as Jackson’s registration requirement, are widely
recognized to be part of a defendant’s sentence for his or her underlying conviction. E.g.
United States v. Schultz, 845 F.3d 879, 881 (8th Cir. 2017) (“As part of the sentence, the
court imposed three special conditions of supervised release . . . .”).
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release plan. This is a challenge to the conditions of his confinement, rather than to the
legality or duration of his sentence.”).
The Court is persuaded by those cases holding that § 1983 challenges to conditions
of release imposed as part of a sentence are subject to Heck’s favorable-termination rule.
The Supreme Court did not suggest in Heck that the favorable-termination rule does not
apply to conditions of release. If anything, the Supreme Court seemed to suggest the
opposite when it observed that “the principle barring collateral attacks . . . is not rendered
inapplicable by the fortuity that a convicted criminal is no longer incarcerated.” Heck, 512
U.S. at 490 n.10. A contrary rule would undermine Heck because it would seem that “a
parolee or individual on supervised release could secure complete release from custody by
challenging the constitutionality of all of his parole or supervised release conditions
pursuant to § 1983 or Bivens, and seeking invalidation of those conditions.” Hurst v. Pribe,
No. 2:14-cv-2552, 2016 WL 1444241, at *4 (S.D. Ohio Apr. 13, 2016). A contrary rule
also would risk arbitrariness. It would be difficult to separate those release conditions that
should be subject to the favorable-termination rule from those that should not. How, for
example, does the registration requirement challenged here by Jackson differ from a
requirement to wear a GPS monitor or have no contact with certain individuals such that
some conditions should be subject to the favorable-termination rule and others not?
Magistrate Judge Rau also concluded and recommended that Jackson’s claim
related to the assertedly unlawful release of information should be dismissed without
prejudice and that Jackson’s application to proceed in forma pauperis should be denied.
R&R at 3–4.

Jackson asserts no discernably separate challenge to either of these
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recommendations. Regardless, the Court also has reviewed these recommendations de
novo and finds them to be correct.
As mentioned earlier, Jackson characterized his response to the R&R as a “Motion
to Consider My lawsuit, or Motion to leave do it over And Sued the State of M.N.”
September 25 Filing at 1. In addition to construing Jackson’s filings as objections to the
R&R, the Court will construe these filings to seek leave to file a second amended
complaint, and the Court will deny that motion. It is true that leave to amend should be
“freely give[n] . . . when justice so requires,” Fed. R. Civ. P. 15(a)(2), but “[l]eave to amend
generally is inappropriate . . . where the plaintiff has not indicated how it would make the
complaint viable, either by submitting a proposed amendment or indicating somewhere in
its court filings what an amended complaint would have contained,” Pet Quarters, Inc. v.
Depository Tr. Clearing Corp., 559 F.3d 772, 782 (8th Cir. 2009) (citing Wolgin v. Simon,
722 F.2d 389, 394–95 (8th Cir. 1983)). Here, even liberally construing his filings, Jackson
has not suggested how he might amend his complaint to make it viable, and the Court can
identify no readily discernible path Jackson might take to achieve that end.
ORDER
Based upon all of the files, records, and proceedings in the above-captioned matter,
IT IS HEREBY ORDERED THAT:
1.

The Motion to Consider my Lawsuit [ECF No. 9], construed as Objections
to the Report and Recommendation, are OVERRULED;

2.

The Report & Recommendation [ECF No. 7] is ACCEPTED with the
additional analysis provided in this Memorandum;
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3.

The Motion to Move Ahead Faster [ECF No. 4] is DENIED as moot;

4.

The Application to Proceed In Forma Pauperis [ECF No. 3] is DENIED;

5.

The Motion for Leave [ECF No. 9], construed as a Motion to Amend the
Complaint, is DENIED; and

6.

The Amended Complaint [ECF No. 6] is DISMISSED WITHOUT
PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: November 8, 2018

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

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