Perkins v. Daniels et al
ORDER overruling 70 Objection to Report and Recommendation; adopting as modified 68 Report and Recommendation; granting 51 Motion to Dismiss and/or for Summary Judgment; denying 29 Motion for Stay and 63 Motion for Entry of Judgment under Rule 54(b); denying leave to file 28 Second Amended Complaint (Written Opinion). Signed by Judge Susan Richard Nelson on 7/15/2021. (avt)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Victor B. Perkins,
Case No. 19-cv-02663 (SRN/ECW)
Dr. Jack Daniels and Dr. Dionne Hart,
Victor B. Perkins, Reg. No. 08783-039, Federal Medical Center, P.O. Box 4000,
Rochester, MN 55903-4000, Pro Se.
Ana H. Voss, United States Attorney’s Office, 300 South Fourth Street, Suite 600,
Minneapolis, MN 55415, for Defendants.
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on Plaintiff Victor B. Perkins’ Objection [Doc. No.
70] to United States Magistrate Judge Elizabeth Cowan Wright’s April 12, 2021 Report
and Recommendation [Doc. No. 68] (“R&R”). In the R&R, the magistrate judge treated
the “Motion to Dismiss and/or for Summary Judgment” [Doc. No. 51] filed by Defendants
Dr. Jack Daniels and Dr. Dionne Hart as a Motion for Summary Judgment, and
recommended granting that motion. Additionally, the magistrate judge recommended
denying the Motion for Stay [Doc. No. 29] and Motion for Interlocutory Judgment [Doc.
No. 63] filed by Perkins. For the reasons set forth below, Perkins’ Objection is overruled,
the Court adopts the R&R as modified herein, grants Defendants’ Motion for Summary
Judgment, and denies Perkins’ motions.
The factual and procedural background of this matter is well documented in the
R&R and is incorporated herein by reference. This Court will recite background facts only
to the extent necessary to rule on Perkins’ Objection.
Perkins is currently committed to the custody of the Attorney General for
hospitalization at the Federal Medical Center-Rochester, Minnesota (“FMC”), pursuant to
18 U.S.C. § 4246. (R&R at 2.) FMC staff—including Defendants—concluded that
involuntary medication was required to treat Perkins’ schizophrenia. (See id. at 1-10.)
Perkins filed this lawsuit, alleging several causes of action under the United States
Constitution and seeking $10,000,000 in damages for Defendants’ alleged violation of his
rights. (Id. at 10-12.) In its September 11, 2020 Order [Doc. No. 24], the Court dismissed
all of Perkins’ claims, except Perkins’ Fifth Amendment procedural and substantive due
process claims against Defendants in their individual capacities.
Perkins thereafter filed a Second Amended Complaint [Doc. No. 28] without
obtaining leave of the Court or Defendants’ consent. Perkins also filed a “Motion to Issue
Stay Order to Force Medicate Without a Court Order” [Doc. No. 29], seeking an order
staying his forced medication. Defendants moved for dismissal under Federal Rule of Civil
Procedure 12(b)(6) or 56 [Doc. No. 51]. Apparently in opposition to this motion, Perkins
filed a “Motion for an Interlocutory Judgment in Reply to Defendant(s) Response Pursuant
to Rule(s) 54(b) and 12(c)(4)” [Doc. No. 63].
In the R&R, the magistrate judge reviewed these motions, and recommended
granting Defendants’ motion and denying Perkins’ motions. Perkins timely filed an
Objection [Doc. No. 70], which is now before the Court.
The district court reviews de novo those portions of the R&R to which a specific
objection is made and “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); accord D. Minn.
L.R. 72.2(b). “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.” Montgomery v. Compass Airlines, LLC, 98 F. Supp. 3d 1012,
1017 (D. Minn. 2015). And “[a] party cannot, in his objections to an R & R, raise arguments
that were not clearly presented to the magistrate judge.” Hammann v. 1-800 Ideas.com,
Inc., 455 F. Supp. 2d 942, 947–48 (D. Minn. 2006) (citing Madol v. Dan Nelson Auto.
Group, 372 F.3d 997, 1000 (8th Cir. 2004); Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir.
2000)). Because Perkins proceeds pro se, the Court liberally construes his pleadings. Frey
v. Schuetzle, 78 F.3d 359, 361 (8th Cir. 1996).
In the R&R, the magistrate judge treated Defendants’ motion as a motion for
summary judgment, and recommended granting the motion. The magistrate judge
interpreted Perkins’ Fifth Amendment due process claims for money damages as Bivens
claims, and reasoned that controlling precedent counsels against extending Bivens to
Perkins’ forced medication due process claims. See Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); Ahmed v. Weyker, 984 F.3d 564, 567–
68 (8th Cir. 2020) (“On only three occasions has the Supreme Court [recognized] a cause
of action under Bivens. Expanding Bivens is, according to the Supreme Court, now a
‘disfavored’ judicial activity. . . . If there is reason to pause before applying Bivens in a
new context or to a new class of defendants[,] we [must] reject the request.” (citations and
internal quotation marks omitted) (alterations in original)).
Although Perkins’ Objection generally asserts that his due process rights have been
violated, the Court can discern only one specific challenge to the R&R. Namely, Perkins
contends that the magistrate judge was biased against him. (See Obj. at 4 (“Perkins,
believes that the Report and Recommendation was given in consideration of the
defendant(s), whom, is also an arm of the Government as also the Court whom, has sought
to protect their adjoining interest, both, the same interest.”).) The Court has carefully
reviewed the record of the proceedings before the magistrate judge, and can find no basis
for Perkins’ allegation of bias against him.
Moreover, the Court finds no error in the magistrate judge’s conclusion that the
record does not support a claim under Bivens as a matter of law. (See R&R at 17-24.) The
Court notes, however, that the R&R recommended dismissing the Amended Complaint
without prejudice. Because Bivens does not extend to the Fifth Amendment due process
claims for money damages alleged in this action, the Court will dismiss those claims with
prejudice. See Holmseth v. City of E. Grand Forks, No. CIV. 14-2970 DWF/LIB, 2015 WL
4488424, at *20 (D. Minn. July 23, 2015) (dismissing claims with prejudice following the
grant of a motion to dismiss for failure to state a claim, where the claims “fail[ed] at the
outset as a matter of law”).
Perkins’ Objection does not address the magistrate judge’s recommendations
regarding his Motion for Stay and Motion for Interlocutory Judgment. The Court finds that
the magistrate judge correctly recommended denying those motions.
Finally, Perkins filed a Second Amended Complaint [Doc. No. 28] without
obtaining Defendants’ consent or leave of this Court. The magistrate judge treated the filing
as a motion for leave to amend the complaint, and concluded that the proposed amendment
would be futile. Perkins has not objected to that conclusion, and the Court finds that the
R&R correctly recommended denying the amendment as futile.
Based on the submissions and the entire file and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff’s Objection to the Report and Recommendation [Doc. No. 70] is
2. The Report and Recommendation [Doc. No. 68] is ADOPTED as modified;
3. Plaintiff’s Motion to Issue Stay Order to Force Medicate Without a Court
Order [Doc. No. 29] and Motion for an Interlocutory Judgment in Reply to
Defendant(s) Response Pursuant to Rule(s) 54(b) and 12(c)(4) [Doc. No. 63]
4. Insofar as Plaintiff’s filing of his Second Amended Complaint [Doc. No. 28]
constitutes a motion for leave to amend the complaint under Federal Rule of
Civil Procedure 15(a), that motion is DENIED; and
5. Defendants’ Motion to Dismiss and/or for Summary Judgment [Doc. No. 51]
is GRANTED, and Plaintiff’s Fifth Amendment individual-capacity claims
are DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 15, 2021
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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