Earley v. Schnell et al
ORDER ADOPTING REPORT AND RECOMMENDATION. (See Order for Details) (Written Opinion) Signed by Judge Wilhelmina M. Wright on 2/17/2021. (RJE)
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 19-cv-1085 (WMW/HB)
ORDER ADOPTING REPORT AND
Paul Schnell, the Minnesota Commissioner
of Corrections in his official capacity,
Edward Miles, in his individual capacity, et
This matter is before the Court on the August 31, 2020 Report and Recommendation
(R&R) of United States Magistrate Judge Hildy Bowbeer.
recommends denying Plaintiff Nicholas Earley’s motion for summary judgment and
granting in part Defendants’ motion for summary judgment or judgment on the pleadings.1
The parties filed timely objections to the R&R. For the reasons addressed below, the
parties’ objections are overruled and the Court adopts the R&R.
Defendants’ motion is titled “Defendants’ motion for judgment on the pleadings and
for summary judgment.” The R&R correctly observes that the same legal standard applies
to a motion for judgment on the pleadings and a Rule 12(b)(6) motion to dismiss. See
Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009) (“A grant of judgment on the
pleadings is appropriate where no material issue of fact remains to be resolved and the
movant is entitled to judgment as a matter of law.” (internal quotation marks omitted)).
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Plaintiff Nicholas Earley is a citizen of the State of Minnesota who commenced this
action while he was an inmate at the Minnesota Correctional Facility in Stillwater,
Presently, Earley is on supervised release under the supervision of the
Minnesota Department of Corrections (DOC).
Earley initiated this action against
Defendant Edward Miles, the Warden of the Minnesota Correctional Facility in St. Cloud,
in his individual capacity; Defendant Paul Schnell, the Commissioner of the Minnesota
Department of Corrections, in his official capacity; and two unidentified individuals who
are responsible for enforcing the alleged constitutional violations.
As relevant here, in December 2016, Earley pleaded guilty in Minnesota state court
to first-degree driving while impaired. In exchange for his guilty plea, the state agreed to
dismiss the accompanying domestic-assault charges in the criminal complaint. Earley’s
fiancée was the alleged victim of domestic assault.
One condition of Earley’s supervised release, Standard Condition 6, prohibits
Earley from engaging in “direct or indirect contact with any person deemed to be a victim
by the [Minnesota] Department of Corrections.” Pursuant to DOC Policy 302.100, a
“victim” is any individual named as a victim in the criminal complaint even if the charged
offense that involves the named victim is dismissed as a part of a plea agreement. Under
DOC Policy 302.100, Earley’s fiancée is a victim of Earley’s domestic-assault offenses,
even though those charges were dismissed. Therefore, Earley is not permitted to have any
Because the R&R provides a detailed factual and procedural background, the Court
briefly summarizes the nature and course of this litigation.
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direct or indirect contact with his fiancée during the period of his supervised release. As
Earley’s fiancée is the mother and primary caregiver of Earley’s minor son, N.E., Standard
Condition 6 restricts Earley’s ability to spend time with N.E.
Earley commenced this lawsuit against Schnell, Miles, and two other DOC
employees on April 22, 2019, alleging that Defendants violated his “fundamental right to
association” under the Fourteenth Amendment, First Amendment, and Eighth Amendment
of the United States Constitution. Earley seeks declaratory and injunctive relief, as well as
damages, costs, and attorneys’ fees.
Before the Court are cross-motions for summary judgment. The R&R recommends
denying Earley’s motion for summary judgment and granting Defendants’ motion for
summary judgment on all claims except for Earley’s First Amendment claim against
Schnell. The parties filed timely objections to the R&R.
A district court reviews de novo those portions of an R&R to which an objection is
made and “may accept, reject, or modify the recommended disposition.” Fed. R. Civ. P.
72(b)(3). A district court reviews for clear error any aspect of an R&R to which no
objection is made. See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam).
As Earley is proceeding pro se, the Court liberally construes his complaint and objections.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Both Earley and Defendants filed
objections, which the Court addresses in turn.
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Earley’s Objections to the R&R
Earley asserts four objections to the recommendations of the R&R. Earley objects
to the R&R’s recommendation to grant Defendants’ motion for summary judgment as to
Earley’s claims relating to his right to association with his son, Schnell’s alleged violation
of the Fourteenth Amendment, and Earley’s request for attorneys’ fees. Earley also objects
to the R&R’s recommendation to deny his motion for summary judgment as to his First
Amendment right to freedom of association with his fiancée. The Court addresses each
objection in turn.
Earley’s Constitutional Claims Regarding His Son
Earley objects to the R&R’s conclusion that Standard Condition 6, which restricts
Earley from contacting his fiancée, does not infringe his First Amendment right to
association with N.E., Earley’s minor son. The indirect effect that Standard Condition 6
has on his relationship with his son, Earley argues, “is not a constitutionally sufficient
distinction” to absolve Defendants of a First Amendment violation.
Earley’s argument is unavailing. Restrictions that indirectly limit a fundamental
right do not necessarily violate the First Amendment. See, e.g., Lyng v. Nw. Indian
Cemetery Protective Ass’n, 485 U.S. 439, 450–51 (1988) (concluding that “incidental
effects of government programs” on the First Amendment right to practice religion do not
require the government to offer a compelling justification for its otherwise lawful actions);
Bell v. Wolfish, 441 U.S. 520, 550–52 (1979) (concluding that a regulation prohibiting
prisoners from receiving hardback books unless mailed directly from publishers, book
clubs, or bookstores did not violate the First Amendment even though the rule might have
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incidental consequences such as increasing the cost of obtaining publish materials). Such
restrictions that have an “incidental or unintended effect on the family” do not amount to
an infringement of Earley’s right to freedom of association with his family. Doe v. Miller,
405 F.3d 700, 710 (8th Cir. 2005).
The magistrate judge correctly observed that, even though Standard Condition 6
likely will have an effect on Earley’s relationship with his son, the effect is too indirect to
violate Earley’s constitutional right to freedom of association. See Lyng, 485 U.S. at 450–
51. Earley fails to identify any fact or legal authority that the R&R omits, overlooks,
mischaracterizes or misapplies.
Nor does Earley’s objection, even when liberally
construed, address the R&R’s legal analysis. Having carefully reviewed de novo this
portion of the R&R in light of Earley’s objection, the Court overrules Earley’s objection
as to his constitutional claims regarding his son.
Earley’s Fourteenth Amendment Claims Against Schnell
The R&R recommends that the Court grant Defendants’ motion for summary
judgment with respect to Earley’s substantive-due-process claim against Schnell. Earley
objects, arguing that the magistrate judge erred by failing to apply strict scrutiny when
determining whether his substantive due process rights were violated.
Substantive due process restricts what the government may do in its legislative and
executive capacities. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). But the
criteria to determine a substantive-due-process violation varies depending on the alleged
infringing act. Id. To succeed on a substantive-due-process challenge to a state-imposed
condition of supervised release, a plaintiff must prove that the imposition of the condition
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violated the plaintiff’s fundamental rights and that the violation is “conscience-shocking.”
Slusarchuk v. Hoff, 346 F.3d 1178, 1181–82 (8th Cir. 2003); see also Bandy v. Comm’r of
Corr., No. 12-cv-2209 (JRT/LIB), 2016 WL 8732632, at *14 (D. Minn. Jan. 29, 2016),
report and recommendation adopted, 2016 WL 1271469 (D. Minn. Mar. 31, 2016), aff’d,
683 F. App’x 551 (8th Cir. 2017); Hartman v. Fabian, No. 11-905 (DSD/AJB), 2012 WL
6737772, at *5–*6 (D. Minn. Dec. 28, 2012). To be conscience-shocking, official action
must involve “the most severe violations of individual rights that result from brutal and
inhumane abuse of official power.” White v. Smith, 696 F.3d 740, 757–58 (8th Cir. 2012)
(internal quotation marks omitted).
Earley’s argument for the application of strict scrutiny was properly considered and
rejected by the magistrate judge in the R&R, citing Slusarchuk, 346 F.3d at 1181–82.
Earley fails to identify any fact or legal authority that the R&R omits, overlooks,
mischaracterizes, or misapplies. Accordingly, having carefully reviewed de novo this
portion of the R&R, the Court overrules this objection.
Earley’s Claim for Attorneys’ Fees
Earley objects to the R&R’s recommendation that the Court dismiss Earley’s claims
for attorneys’ fees. Because his First Amendment claim survives, Earley argues, he may
be entitled to attorneys’ fees on that claim if he prevails.
A district court may award attorneys’ fees to a plaintiff who succeeds in a Section
1983 action against a state official sued in his or her official capacity. Hutto v. Finney, 437
U.S. 678, 693–98 (1978) (holding that the Eleventh Amendment does not prevent an award
of attorneys’ fees against officers of a state department of corrections sued in their official
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capacity). But a pro se litigant may not recover attorneys’ fees in a civil rights action. Kay
v. Ehrler, 499 U.S. 432, 435–38 (1991).
The R&R recommends granting Defendants’ motion for summary judgment as to
attorneys’ fees. A plaintiff represented by counsel who succeeds on a First Amendment
claim may be entitled to attorneys’ fees. See, e.g., Maine v. Thiboutot, 448 U.S. 1, 11
(1980). But because Earley is not represented by counsel, even if his First Amendment
claim succeeds, he cannot recover attorneys’ fees. See Ehrler, 499 U.S. at 435–38. Having
carefully reviewed de novo this portion of the R&R, the Court overrules Earley’s objection
to this recommendation.3
Defendants’ Objection to the R&R
Defendants object to the R&R’s recommendation that the Court deny Defendants’
motion for summary judgment and judgment on the pleadings as to Earley’s First
Amendment claim against Schnell. First, Defendants argue that the magistrate judge erred
by failing to apply the legal standard articulated in State v. Schwartz, 628 N.W.2d 134, 141
(Minn. 2001). Second, Defendants argue that, even if the Court applies the legal test
articulated in Turner v. Safley, 482 U.S. 78, 89 (1987), as recommended in the R&R, the
Defendants’ motion for summary judgment should be granted.
Earley’s objection to the R&R’s recommendation to deny Earley’s motion for
summary judgment as to Earley’s freedom of association claim with respect to his fiancée
is addressed with Defendants’ objection in Part II.B of this Order.
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Minnesota Supreme Court Standard
Defendants argue that the legal standard articulated by the Minnesota Supreme
Court in Schwartz should be used to analyze Earley’s First Amendment claim against
Schnell. The Schwartz standard requires a condition of release to be reasonably related to
the offense and not unduly restrictive of the offender’s liberty. Schwartz, 628 N.W.2d at
141. Defendants argue that if Earley had brought this action in a Minnesota state court,
that court would have applied the Schwartz standard.
This argument is unavailing, because the appellant in Schwartz challenged his
conditions of release pursuant to Minnesota statutes and the separation-of-powers
provision of the Minnesota Constitution. See Schwartz, 628 N.W.2d at 138. In this case,
Earley challenges his conditions of release pursuant to the United States Constitution. The
decisions of the Supreme Court of the United States are binding authority in all courts,
federal and state, on issues of federal law, such as the United States Constitution. Because
Earley is relying on the First Amendment to the United States Constitution as the basis for
this claim, the R&R correctly applies federal precedent by relying on Turner, 482 U.S. at
89. Even if Earley had brought this action in a Minnesota state district court, that court
would have been bound by Turner.
Accordingly, the Court overrules Defendants’
Earley and Defendants object to the R&R’s recommendation to deny their
respective motions for summary judgment as to Earley’s First Amendment freedom-ofassociation claim that pertains to Earley’s fiancée. The parties do not dispute that Earley
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and his fiancée’s relationship is protected by the First Amendment right to freedom of
association. See Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 545–
46 (1987); Carey v. Population Servs. Int’l, 431 U.S. 678, 684–86 (1977). The parties
object to the R&R’s application of the Turner test, however.
The Supreme Court held in Turner that a burden on a prisoner’s fundamental right
does not violate the United States Constitution if it is “reasonably related to legitimate
penological interests.” Turner, 482 U.S. at 89. Courts apply a four-factor test to determine
whether the burden is reasonably related to legitimate penological interests: (1) whether
there is a rational connection between the policy and the legitimate government interest put
forward to justify it; (2) whether there are alternative means of exercising the right; (3) the
impact an accommodation of the asserted constitutional right would have on prison staff,
other inmates, and prison resources; and (4) the absence of obvious and easy alternatives
that would fully accommodate the prisoner. Id. at 89–90. Although Turner applies
specifically to prisoners who are in prison, courts have created a modified Turner test for
prisoners who are subject to different categories of detention. See, e.g., Ivey v. Johnston,
No. 18-cv-1429 (PAM/DTS), 2019 WL 3334346, at *5 (D. Minn. July 24, 2019) (applying
a modified Turner test to civil detainees).
Applying the modified Turner test here, the R&R concludes that a genuine issue of
material fact exists as to whether there is a rational connection between Standard Condition
6 and the goals sought to be advanced by the state with respect to Earley. The R&R also
concludes that the record is not sufficiently developed to allow the Court to analyze the
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third and fourth Turner factors. The R&R recommends denying both Earley’s and
Defendants’ motions for summary judgment as to this claim.
Earley argues that the R&R applies the wrong legal standard. Because he is no
longer incarcerated, Earley contends, the Court should apply strict scrutiny. But Earley
offers no legal authority that supports this argument. As the R&R persuasively observes,
“the basic responsibility of the state to the inmate and those around him remains constant
despite the change in the degree of physical custody.” Felce v. Fiedler, 974 F.2d 1484,
1495 (7th Cir. 1992). Supervised release is a form of incarceration, and courts have found
little reason to distinguish supervised release from incarceration when determining the
constitutional standard of protection. Id. Therefore, the Court overrules this aspect of
If the Court applies the modified Turner test, Defendants argue, the Court should
do so in a way that takes into account the differences between supervised release and
incarceration. Defendants contend that, because the Turner test is designed to address the
constitutional rights of those who are incarcerated, the Turner test fails to consider whether
Standard Condition 6 is reasonably related to “legitimate concerns of supervised release,
including rehabilitation, supervision, public safety, and protecting victims.” Defendants
are correct that some of the Turner factors do not precisely address supervised release. But
the R&R applies a modified Turner test and, in doing so, addresses the differences between
incarceration and supervised release. Defendants’ objection merely asks the Court to do
what the R&R recommends, namely, to consider the unique aspects of supervised release.
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As the R&R addresses how the Turner test should be modified to apply to supervised
release, the Court overrules Defendants’ objection.
In summary, the R&R applies the correct legal standard. The R&R correctly
concludes that there is a genuine dispute of material fact as to whether a rational connection
exists between Standard Condition 6 and the goals sought to be advanced by the state with
respect to Earley. Accordingly, the Court overrules the objections of both Earley and
Defendants as to this aspect of the R&R.
Clear Error Review
The Court reviews the remainder of the R&R, to which no party specifically objects,
for clear error. See Grinder, 73 F.3d at 795; see also Fed. R. Civ. P. 72(b) advisory
committee’s note (“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.”).
Having carefully performed this review, the Court finds no clear error and, therefore,
adopts the R&R.
Based on the foregoing analysis and all the files, records and proceedings herein, IT
IS HEREBY ORDERED:
Defendants’ objection to the August 31, 2020 R&R, (Dkt. 54), is
Plaintiff’s objections to the August 31, 2020 R&R, (Dkt. 55), are
The August 31, 2020 R&R, (Dkt. 53), is ADOPTED.
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Plaintiff’s motion for summary judgment, (Dkt. 28), is DENIED.
Defendants’ motion for summary judgment or for judgment on the pleadings,
(Dkt. 35), is DENIED as to Plaintiff’s First Amendment claim based on his relationship
with his fiancée and GRANTED in all other respects.
Dated: February 17, 2021
s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge
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