Billups et al v. Minnesota Department of Corrections et al
ORDER ACCEPTING REPORT AND RECOMMENDATION. Plaintiffs' objection 42 is OVERRULED. The Report and Recommendation 40 is ACCEPTED. Plaintiffs' claims against the Minnesota Department of Corrections are DISMISSED without prejudice, and the Minnesota Department of Corrections is DISMISSED from this action. Plaintiffs' claims against the individual Defendants in their official capacities are DISMISSED without prejudice. Plaintiffs' claims against Defendant "Officer J. Lehner" are DISMISSED without prejudice, and Lehner is DISMISSED from this action. (Written Opinion) Signed by Judge Nancy E. Brasel on 4/27/2021.(KMW)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
KHALIL BILLUPS and ADAM R.
MINNESOTA DEPARTMENT OF
CORRECTIONS, et al.,
Case No. 19‐CV‐2581 (NEB/DTS)
ORDER ACCEPTING REPORT AND
Plaintiffs Khalil Billups and Adam Hageman, both prisoners housed by the
Minnesota Department of Corrections (“DOC”), filed an Amended Complaint alleging
42 U.S.C. Section 1983 claims against the DOC and several individual defendants who
allegedly work for the DOC. Because Plaintiffs sought to proceed in forma pauperis, United
States Magistrate Judge David T. Schultz screened the complaint under 28 U.S.C.
Section 1915(e)(2)(B) to determine whether it stated a claim on which relief can be
granted. (ECF No. 40 (“R&R”) at 6–10.) In a Report and Recommendation, Judge Schultz
recommends that the Court dismiss without prejudice the claims against the DOC, the
individual defendants in their official capacities, and defendant “Officer J. Lehner.” (Id.
at 10.) Judge Schultz further recommends that the Court dismiss the DOC and Lehner
from this action. (Id.) Plaintiffs filed an objection to the R&R. (ECF No. 42 (“Obj.”).) The
Court now reviews de novo those portions of the R&R to which Plaintiffs object. 28 U.S.C.
§ 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). Because Plaintiffs are proceeding pro se, the Court
construes their objections liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The R&R explains the relevant factual and procedural history of the case. (R&R at
1–6; Obj. at 13 (acknowledging that the R&R “sufficiently addresses the factual
allegations and the legal standard”).) The Court repeats a few facts necessary for its
Plaintiffs brought this Section 1983 action alleging that the DOC and individual
defendants violated certain constitutional rights. They seek only monetary damages.
(ECF No. 1 at 23; see Obj. at 3–4 (confirming that Plaintiffs seek monetary damages).)
Upon screening the original complaint under Section 1915(e)(2)(B), Judge Schultz
recommended that the complaint be dismissed. (ECF No. 13 at 9.) Plaintiffs then asked
for—and received—leave to amend the complaint. (ECF Nos. 18, 22.) Plaintiffs filed an
Amended Complaint, which is nearly identical to the original complaint, as well as a
supplement clarifying that their claims against the individual defendants are against
those defendants in their official and individual capacities. (Compare ECF No. 1 with ECF
No. 27 (“Am. Compl.”); ECF No. 28 at 1.)
State Sovereign Immunity
Judge Schultz recommends dismissing Plaintiffs’ Section 1983 claims against the
DOC and the individual defendants in their official capacities based on state sovereign
immunity. (R&R at 7‐8.) State immunity bars “the award of any retroactive relief for
violations of federal law that would require payment of funds from a state treasury.”
Skelton v. Henry, 390 F.3d 614, 617 (8th Cir. 2004). Under the principles confirmed by the
Eleventh Amendment, federal courts generally lack subject‐matter jurisdiction over
claims against an unconsenting state. See Sossamon v. Texas, 563 U.S. 277, 284 (2011)
(“[F]ederal jurisdiction over suits against unconsenting States ‘was not contemplated by
the Constitution when establishing the judicial power of the United States.’”) (quotation
omitted). Courts have held that the State of Minnesota is immune from suit under
Section 1983. E.g., Grover‐Tsimi v. Minnesota, 449 Fed. App’x 529, 530 (8th Cir. 2011) (per
Plaintiffs contend the Eleventh Amendment does not bar liability under
Section 1983 for “local government units which are not considered part of the state for
Eleventh Amendment purposes.” (Obj. at 14.) But the DOC is considered a state agency
for purposes of Eleventh Amendment immunity.1 Upsher v. Roy, No. 19‐CV‐1805
Plaintiffs assert that Section 1983 applies to the individual officer defendants, (Obj. at
12, 14), but “a suit against state employees in their official capacities is the functional
(MJD/HB), 2020 WL 2527108, at *3 (D. Minn. Apr. 15, 2020), report and recommendation
adopted, 2020 WL 2526498 (D. Minn. May 18, 2020); Carter v. CWF Sols., LLC, No. 09‐CV‐
16 (JMR/FLN), 2009 WL 512482, at *2 (D. Minn. Feb. 27, 2009). Thus, Eleventh
Amendment immunity bars Plaintiffs’ Section 1983 claims against the state, i.e., the DOC
and the individual defendants in their official capacities.
Plaintiffs argue that the Court should not dismiss the DOC because an authorized
representative and employee of the DOC consented to this action. (Obj. at 10–12.) “[A]
state official may waive the state’s immunity only where specifically authorized to do so
by that state’s constitution, statutes, or decisions.” Santee Sioux Tribe of Neb. v. Nebraska,
121 F.3d 427, 431 (8th Cir. 1997); see Roberts v. Source for Pub. Data, No. 08‐4167‐CV‐C‐
NKL, 2011 WL 1254099, at *6 (W.D. Mo. Mar. 31, 2011) (“[O]nly the State—or a State actor
so empowered—can waive the Stateʹs Eleventh Amendment immunity.”).
Plaintiffs contend that they “reviewed the complaint with Sgt. Gwen Brausen
before she ultimately notarized documents . . . . Defendant Brausen said ‘I will have to
read and consent to this lawsuit since it is against the Minnesota Department of
Corrections.’” (Obj. at 10–11.) Assuming Brausen made this statement,2 this Court is not
equivalent of a suit against the State.” Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012)
(citing Monell v. Depʹt of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)).
The Minnesota Notary Acknowledgements attached to the Amended Complaint state
that Brausen is a notary public with the title of “correction officer.” (Am. Compl. at 27–
28.) While Plaintiffs offer no proof of Brausen’s statement about consent, they contend
that Brausen’s answers to their interrogatories and “the video of the Plaintiffs and
aware of any provision in Minnesota’s constitution or statutes—or any other legal
authority—establishing that a DOC correction officer has the power to waive the State of
Minnesota’s sovereign immunity. Cf. Santee Sioux Tribe, 121 F.3d at 432 (holding plaintiff
“failed to demonstrate that waiver of the state’s Eleventh Amendment immunity is
within the authority of Nebraskaʹs attorney general”); Union Elec. Co. v. Mo. Depʹt of
Conservation, 366 F.3d 655, 660 (8th Cir. 2004) (explaining that Missouri’s “Attorney
General could waive the state’s Eleventh Amendment immunity” because state law
authorized Missouri’s attorney general to institute, on behalf of the state, “all civil suits
and other proceedings at law or in equity”) (emphasis in original).
Moreover, although a state may voluntarily waive immunity from federal suit by
making a “clear declaration” that it intends to submit itself to federal jurisdiction, the test
for waiver is “a stringent one.” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense
Bd., 527 U.S. 666, 675, 675–76 (1999) (quotation omitted); see id. at 676 (noting a state’s
“consent to suit must be ‘unequivocally expressed’”) (quoting Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 99 (1984)). Courts are to “indulge every reasonable
presumption against waiver.” Id. at 682. Thus, a state does not waive that immunity
merely “by stating its intention to sue or be sued or even by authorizing suits against it
Defendant [presumably, Brausen] consenting after review shall provide evidence
relevant to this argument.” (Obj. at 11–12.)
in any court of competent jurisdiction.” Quinnett v. Iowa, 644 F.3d 630, 632–33 (8th Cir.
2011) (quotation omitted).
Given the stringent standard for a state to waive sovereign immunity, the Court
finds that even if Sergeant Brausen had the authority to waive state sovereign immunity
(and she does not), her alleged statement that “[she would] have to read and consent to
this lawsuit since it is against the Minnesota Department of Corrections,” is not enough
to allow for waiver of the DOC’s immunity from suit in federal court. (Obj. at 11
(emphasis added)); cf. Reeder v. Carroll, No. 09‐CV‐4013‐LRR, 2010 WL 797136, at *3 (N.D.
Iowa Mar. 5, 2010) (holding that the Iowa Board of Medical Examiners did not waive its
Eleventh Amendment immunity by suggesting in a newspaper article that it might
intervene in a federal lawsuit).
Remaining Aspects of the R&R
The Court has reviewed for clear error the remaining aspects of the R&R to which
Plaintiffs have not specifically objected. See Fed. R. Civ. P. 72(b); Grinder v. Gammon, 73
F.3d 793, 795 (8th Cir. 1996) (per curiam). Finding no clear error in those findings and
conclusions, and following a de novo review of the aspects of the R&R to which Plaintiffs
object, the Court accepts the R&R.
IT IS HEREBY ORDERED THAT:
1. Plaintiffs’ objection (ECF No. 42) is OVERRULED;
2. The Report and Recommendation (ECF No. 40) is ACCEPTED;
3. Plaintiffs’ claims against the Minnesota Department of Corrections are
DISMISSED without prejudice, and the Minnesota Department of Corrections is
DISMISSED from this action;
4. Plaintiffs’ claims against the individual Defendants in their official capacities are
DISMISSED without prejudice; and
5. Plaintiffs’ claims against Defendant “Officer J. Lehner” are DISMISSED without
prejudice, and Lehner is DISMISSED from this action.
Dated: April 27, 2021
BY THE COURT:
s/Nancy E. Brasel
Nancy E. Brasel
United States District Judge
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