Asher v. Ninneman et al
ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED. (See order for details). (Written Opinion). Signed by Judge Wilhelmina M. Wright on 10/15/2020. (RJE)
CASE 0:19-cv-03002-WMW-KMM Doc. 36 Filed 10/15/20 Page 1 of 2
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Jeremy David Asher,
Case No. 19-cv-3002 (WMW/KMM)
ORDER ADOPTING REPORT AND
RECOMMENDATION AS MODIFIED
Brian Ninneman et al.,
This matter is before the Court on the July 29, 2020 Report and Recommendation
(R&R) of United States Magistrate Judge Katherine M. Menendez. (Dkt. 35.) Plaintiff
Jeremey David Asher is civilly committed to the Minnesota Sex Offender Program (MSOP)
and lives at MSOP’s facility. Asher commenced this action against eight MSOP employees
based on Asher’s brief placement in a high-security area and corresponding unclothed
visual body search following Asher’s refusal to comply with directives from MSOP staff.
Asher asserts claims against Defendants, in both their official and individual capacities, for
violations of Asher’s Fourth, Eighth, and Fourteenth Amendment rights under the United
The R&R recommends dismissing Asher’s claims against the Defendants in their
respective official capacities for lack of subject-matter jurisdiction. Fed. R. Civ. P.
12(b)(1). The R&R also recommends dismissing the remainder of Asher’s claims for
failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). No
objections to the R&R have been filed. In the absence of timely objections, this Court
CASE 0:19-cv-03002-WMW-KMM Doc. 36 Filed 10/15/20 Page 2 of 2
reviews an R&R for clear error. See Fed. R. Civ. P. 72(b); Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (per curiam). Having performed this review, the Court adopts the
R&R as modified.
The R&R recommends dismissing Asher’s complaint with prejudice. Although
Rule 12(b)(6) dismissals are commonly with prejudice, Vigeant v. Meek, 352 F. Supp. 3d
890, 900 (D. Minn. 2018), claims dismissed for lack of subject-matter jurisdiction pursuant
to Rule 12(b)(1) are “necessarily dismissed without prejudice,” Hussein v. Barr, No. 19cv-292 (JRT/HB), 2019 WL 5150039, at *3 (D. Minn. July 31, 2019); see also Hart v.
United States, 630 F.3d 1085, 1091 (8th Cir. 2011) (affirming dismissal for lack of subjectmatter jurisdiction but modifying the dismissal to be without prejudice).
Based on the R&R, the foregoing analysis and all the files, records and proceedings
herein, IT IS HEREBY ORDERED that the July 29, 2020 R&R, (Dkt. 35), is ADOPTED
AS MODIFIED as follows:
Defendants’ Motions to Dismiss (Dkts. 16, 29), are GRANTED.
All claims brought by Plaintiff Jeremy David Asher against
Defendants in their respective official capacities are DISMISSED
All other claims are DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: October 15, 2020
s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge
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