Braun v. Walz et al

Filing 167

ORDER denying 133 Motion to Alter/Amend/Supplement Pleadings; denying 133 Motion to Appoint Counsel; denying 133 Motion for TRO; denying 135 Motion to Alter/Amend/Supplement Pleadings; denying 139 Motion for TRO; adopting Report and Recommendations re 158 Report and Recommendation.(Written Opinion) Signed by Judge David S. Doty on 9/8/2021. (DLO)

CASE 0:20-cv-00333-DSD-BRT Doc. 167 Filed 09/08/21 Page 1 of 8

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CIVIL NO. 20-333 (DSD/BRT)
Nathan Christopher Braun,
Plaintiff,
ORDER

v.
Tim Walz, Governor; Commission of
Corrections; Nate Knutson, Assistant
Commissioner; Chris Pawelk, Assistant
Warden of Operations Oak Park
Heights; Sherlinda Wheeler,
Assistant Warden of Administration
of Oak Park Heights; Bryon Matthews,
Captain of Oak Park Heights;
Nancy Leseman, Mail Room Lead Worker
of Oak Park Heights; S. Henry, Mail
Room Worker of Oak Park Heights;
and Lt. Jason R. Hills, Mail Room
Supervisor of Oak Park Heights,
Defendants.
This

matter

is

before

the

court

upon

the

objections

by

petitioner Nathan Christopher Braun to the August 9, 2021, report
and recommendation of Magistrate Judge Becky R. Thorson (R&R).
Based on a review of the file, record, and proceedings herein, and
for the following reasons, the court overrules the objections and
adopts the R&R in its entirety.

BACKGROUND
Braun commenced this action on January 24, 2020, alleging
violations of his First, Fifth, and Fourteenth Amendment rights.

CASE 0:20-cv-00333-DSD-BRT Doc. 167 Filed 09/08/21 Page 2 of 8

Braun

sued

Governor

Tim

Walz,

the

Minnesota

Commission

of

Corrections, the Assistant Commissioner, and other officials at
Minnesota Correctional Facility – Oak Park Heights, arguing that
the confiscation of pieces of mail constituted illegal censorship
and violated his constitutional rights.
After

initiating

the

action,

Braun

has

repeatedly,

and

unsuccessfully, sought to supplement the pleadings and obtain
preliminary injunctions.

See ECF Nos. 13, 14, 17, 93, 98, 103,

105, 114, 122. 1 On May 27 and June 7, 2021, Braun filed the motions
at issue here - two motions to supplement the pleadings, a motion
for appointment of counsel, and two motions for a preliminary
injunction.

ECF Nos. 133, 135, 139.

The magistrate judge recommended that the court deny all of
Braun’s requests. Doc. No. 158. Braun objects to multiple aspects
of the R&R.

After a thorough review of the file and record, the

court finds that the R&R is well-reasoned and correct.

DISCUSSION
The court reviews de novo any portion of the R&R to which
specific objections are made.

154.

1

28 U.S.C. § 636(b)(1)(c).

These motions were all denied.
2

See ECF Nos. 15, 36, 124,

CASE 0:20-cv-00333-DSD-BRT Doc. 167 Filed 09/08/21 Page 3 of 8

I.

Motions to Supplement
Braun moved to supplement the proceedings to add claims based

on additional instances of alleged censorship.

The court “may, on

just terms, permit a party to serve a supplemental pleading setting
out any transaction, occurrence, or event that happened after the
date of the pleading to be supplemented.”

Fed. R. Civ. P. 15(d).

The

is

purpose

of

a

supplemental

pleading

“to

cover

matters

subsequently occurring but pertaining to the original cause.”
United States v. Vorachek, 563 F.2d 884, 886 (8th Cir. 1977) (per
curiam) (citation omitted).

Further, “[i]t has been held that a

court may deny leave to file a supplemental complaint where the
new proposed pleading related only indirectly to the original
complaint and the new alleged cause of action arose from a body of
facts unrelated to those set forth in the original complaint.”
Dockery v. Wetzel, No. 3-cv-11-1368, 2013 WL 664931, at *3 (M.D.
Penn. Feb. 22, 2013).
Although leave to supplement should generally be “freely
given,” it is within the court’s discretion to deny a motion if
there is “undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, [or] futility of amendment ...”
Vorachek,

563

F.2d

at

886-87

omitted).
3

(emphasis

omitted)

(citation

CASE 0:20-cv-00333-DSD-BRT Doc. 167 Filed 09/08/21 Page 4 of 8

Braun filed two motions to supplement the proceedings.

The

first alleged that defendant Henry refused to deliver two pieces
of mail sent to Braun from an inmate in Oregon, and the second
alleged that Braun did not receive a publication titled “Criminal
Legal News.” The magistrate judge recommended denying the motions,
finding that the new allegations did not relate to the original
complaint

and

that

granting

the

motion

would

“prejudice

Defendants’ ability to respond effectively given the upcoming
deadlines.”

ECF No. 158, at 5.

Braun objects, arguing that the

new allegations relate to a pattern of censorship by BOP.

Braun

also argues that defendants had sufficient notice to respond to
the new allegations.
This court agrees with the magistrate judge’s conclusion that
the supplemental claims do not relate to the original cause of
action because the two sets of allegations arise from two separate
bodies of facts.

Braun’s original claim challenged the denial of

two publications – “The Abolitionist” and “MIM” – and the failure
of defendants Henry, Leseman, and Hills to notify him regarding
the denial of other publications.
concern

the

different

alleged

times,

and

censorship
under

The new allegations, however,
of

different

different

Corrections (MNDOC) policies. 2

publications,

Minnesota

Department

at
of

Further, Braun’s claim that the

The MNDOC policy challenged in the original complaint dealt
with materials deemed safety risks. See ECF No. 101, at 3. The
2

4

CASE 0:20-cv-00333-DSD-BRT Doc. 167 Filed 09/08/21 Page 5 of 8

new

allegations

amounted

to

retaliation

for

challenging

the

original conduct does not sufficiently connect the two sets of
claims.

See

Dockery,

2013

WL

664931,

at

*3

(finding

that

retaliation claims do not connect “completely separate bod[ies] of
facts”).
Additionally, the court agrees with the magistrate judge’s
finding that permitting Braun to supplement his pleading would
prejudice defendants.

The motions at issue were filed almost a

year and a half after this action was commenced.

The deadline for

close of discovery is set for September 30, 2021.
1.

Adding

new

claims

based

on

entirely

ECF No. 102, at

separate

facts

and

circumstances would prejudice defendants’ ability to effectively
respond.
Accordingly,

the

court

adopts

the

magistrate

judge’s

recommendation to deny the motion to supplement.
II. Motion Requesting Appointment of Counsel
Braun

also

sought

appointment

of

counsel.

There

is

no

constitutional or statutory right to counsel in civil cases.
Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998).
however, have discretion to appoint counsel.
F.2d 213, 214 (8th Cir. 1982).

Courts do,

Mosby v. Mabry, 697

The applicable standard is whether

both the petitioner and the court would benefit from the assistance
MNDOC policies Braun now seeks to challenge prohibit mailing sexual
material and transferring property between inmates.
5

CASE 0:20-cv-00333-DSD-BRT Doc. 167 Filed 09/08/21 Page 6 of 8

of counsel.

Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir.

1986) (citation omitted).

Factors considered include “the factual

complexity of the issues; the ability of an indigent to investigate
the facts; the existence of conflicting testimony; the ability of
an indigent to present his claim; and the complexity of the legal
issues.”

Nachtigall v. Class, 48 F.3d 1076, 1081-82 (8th Cir.

1995).
The

magistrate

judge

recommended

denying

the

motion

for

appointment of counsel because she found that the facts and legal
issues were not “so complex as to warrant appointment of counsel.”
Braun objects, arguing that his mental health and lack of legal
training

or

access

to

legal

materials

“effectively prosecute the case.”

impede

his

ECF No. 162, at 4.

ability

to

The court

agrees with the magistrate judge that the factual and legal issues
are not sufficiently complex to warrant appointment of counsel.
Further, Braun has demonstrated an ability throughout this action
to articulate and pursue his claims.
As a result, the magistrate judge’s recommendation to deny
the motion for appointment of counsel is adopted.
III. Motions for Temporary Restraining Orders
Finally, Braun filed two motions for temporary restraining
orders against defendants, asking the court to enjoin defendants
from retaliating against him.

ECF No. 133, at 6-7.

Because the

adverse parties had notice and an opportunity to oppose, the court
6

CASE 0:20-cv-00333-DSD-BRT Doc. 167 Filed 09/08/21 Page 7 of 8

treats the motion as one for a preliminary injunction.

See

Wheatley v. Quist, No. 15-cv-1979, 2016 WL 2596007, at *1 (D. Minn.
Apr. 13, 2016).
A preliminary injunction is issued “to preserve the status
quo and prevent irreparable harm until the court has an opportunity
to rule on the lawsuit’s merits.”

Devose v. Herrington, 42 F.3d

470, 471 (8th Cir. 1994) (per curiam).

The moving party must

“establish a relationship between the injury claimed in the party’s
motion and the conduct asserted in the complaint.”

Id.

Further,

preliminary injunctions in the prison context “must always be
viewed with great caution” given the “complex and intractable
problems of prison administration.”
520

(8th

Cir.

1995)

(citation

Goff v. Harper, 60 F.3d 518,

and

internal

quotation

marks

omitted).
The magistrate judge recommended denying both motions, and
this court agrees.
two

reasons.

Braun’s motion for injunctive relief fails for

First,

the

factual

basis

Braun

relies

on

in

requesting a preliminary injunction relates to new allegations
that are unrelated to the original action.

Second, the alleged

confiscation of mail relates to prison administration and is
insufficient to warrant injunctive relief.

7

CASE 0:20-cv-00333-DSD-BRT Doc. 167 Filed 09/08/21 Page 8 of 8

CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.

Braun’s

objections

to

the

R&R

[ECF

No.162]

are

overruled; and
2.

The R&R [ECF No. 158] is adopted in its entirety.

Dated: September 8, 2021
s/David S. Doty
David S. Doty, Judge
United States District Court

8