Evenstad et al v. Schnell et al
MEMORANDUM OPINION AND ORDER granting 30 Defendants' Motion to Dismiss; denying as moot 36 Motion to Reconsider ; denying as moot 37 Motion to Reconsider ; denying as moot 38 Sealed Motion ; denying as moot 51 Motion to Comp el; denying as moot 53 Motion to Compel; denying as moot 3 Motion for Preliminary Injunction; denying as moot 6 Motion to Expand Class of Covid-19 Lawsuit, Motion to Appoint Counsel, Motion to Appoint Expert; denying as moot 7 Motion to Appoint Counsel ; denying as moot 7 Motion for Sanctions; denying as moot 8 Application to Proceed in District Court without Prepaying Fees or Costs.; denying as moot 12 Motion for Preliminary Injunction, Motion for Sanctions; denying as moo t 13 Motion for TRO;, Motion for Preliminary Injunction; denying as moot 17 Motion to Reconsider ; denying as moot 19 Application to Proceed in District Court without Prepaying Fees or Costs. (Written Opinion) Signed by Chief Judge John R. Tunheim on 9/14/2020. (HAZ)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
THOMAS EVENSTAD and NATHAN BRAUN,
Civil No. 20-885 (JRT/KMM)
PAUL SCHNELL, MICHELLE SMITH, NATE
KNUTSON, KAREN ROBINSON, VICKI
JANSSEN, JESSE PUGH, MINNESOTA
DEPARTMENT OF CORRECTIONS, and
STATE OF MINNESOTA,
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANTS’ MOTION TO
Thomas Evenstad, 534 Logan Avenue North, Minneapolis, MN 55404; and
Nathan Braun OID # 252511, MCF – Stillwater, 5329 Osgood Avenue North,
Stillwater, MN 55082, pro se.
Corinne Wright-MacLeod and Kevin Jonassen, MINNESOTA ATTORNEY
GENERAL’S OFFICE, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101,
Plaintiffs Thomas Evenstad and Nathan Braun filed this action alleging Defendants
violated the U.S. Constitution by considering certain non-violent offenders for early
release from prison due to the COVID-19 pandemic while not considering violent
offenders for the same early release. Defendants filed a Motion to Dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Because Defendants are entitled
to sovereign and qualified immunity, and because Plaintiffs fail to allege a viable claim,
the Court will grant Defendants’ Motion to Dismiss without prejudice.
Plaintiffs filed this action against Defendants in their official and individual
capacities seeking damages and injunctive relief under the Fourteenth Amendment’s
Equal Protection Clause. 1 (Compl. at 5–8, April 6, 2020, Docket No. 1.) Plaintiffs argue,
essentially, that it is a violation of their equal protection rights (in violation of the
Fourteenth Amendment) for Defendants to release non-violent offenders from prison
due to the COVID-19 pandemic while not also releasing violent offenders such as
Plaintiffs. (Id.) In addition to money damages, Plaintiffs sought the appointment of
counsel and an emergency preliminary injunction to prevent Defendants from releasing
early any prisoners classified as non-violent unless all prisoners, including those classified
as violent, are also released. (Id. at 7.) Plaintiffs also sought to proceed in forma pauperis
(“IFP”). (Docket No. 2.)
On April 15, 2020, the Magistrate Judge issued an Order and a Report and
Recommendation (“R&R”). (Docket No. 5.) The Magistrate Judge Ordered that (1)
Plaintiffs also list claims for (1) “Reckless/Deliberate Indifference and Endangerment,” (2)
“Failure to Protect,” and (3) “Cruel and Unusual Punishment: Eighth Amendment Violations,”
(Compl. at 7) but fail to state what actions by Defendants caused such claims to be made and
only specifically argue that the policy of considering non-violent offenders for early release but
not violent offenders violates their rights under the Equal Protection Clause of the Fourteenth
Amendment. (Id. at 5–8.) Accordingly, the Court will dismiss these claims.
Plaintiffs’ IFP applications be denied and (2) the request to appoint counsel be denied.
(Id. at 1–2.) The Magistrate Judge Recommended that the Court (1) deny without
prejudice Plaintiffs’ request for an emergency preliminary injunction and (2) strike with
prejudice Plaintiffs’ attempt to present claims on behalf of classes of individuals. (Id. at
3–4.) Plaintiffs did not specifically object to any of the Magistrate Judge’s decisions listed
above, 2 but did file successive motions seeking the same relief sought in their Complaint.
(See Docket Nos. 6–8, 12–13, 17, 19, 37.) 3
On July 6, 2020, Defendants filed a Motion to Dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(1) and 12(b)(6). (Docket No. 30.) Defendants argue under Rule
12(b)(1) that the Court lacks subject matter jurisdiction because (1) Plaintiffs’ claims for
damages against Defendants in their official capacity are barred by the Eleventh
Amendment; (2) Plaintiffs’ claims against Defendants in their personal capacity are barred
by the qualified-immunity doctrine; (3) Plaintiffs’ claims for injunctive relief are moot or
otherwise barred by the Prison Litigation Reform Act; and (4) Plaintiffs’ claims for
violations of the Equal Protection Clause of the Fourteenth Amendment are not ripe.
Plaintiffs did file objections to the Magistrate Judge’s Order and Report and Recommendation,
but only to the extent that the Magistrate stated that Plaintiffs did not allege claims against
Defendants in their individual capacities. The Magistrate Judge corrected this error. (Docket No.
Additionally, Plaintiff Braun moves to compel discovery. (Docket Nos. 51 and 53.) Because
discovery has not yet begun and because the Court will grant Defendants’ Motion to Dismiss, the
Court will also deny Plaintiff Braun’s motions to compel.
Defendants argue under Rule 12(b)(6) that the Complaint should be dismissed because
Plaintiffs fail to plead sufficient facts to support their claims.
On August 10, 2020, Evenstad was released from prison. (Notice of Change of
Address, Aug. 13, 2020, Docket No. 47.)
RULE 12(b)(1) MOTION
A. Standard of Review
“A motion to dismiss pursuant to Rule 12(b)(1) challenges the Court’s subject
matter jurisdiction and requires the Court to examine whether it has authority to decide
the claims.” Damon v. Groteboer, 937 F. Supp. 2d 1048, 1063 (D. Minn. 2013). In this
facial Rule 12(b)(1) attack, the Court “restricts itself to the face of the pleadings and the
non-moving party receives the same protections as it would defending against a motion
brought under Rule 12(b)(6).” Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir.
1990) (citation omitted). “The general rule is that a complaint should not be dismissed
unless it appears beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.” Id. (cleaned up).
B. Sovereign Immunity
The doctrine of Sovereign Immunity emanates from the Eleventh Amendment and
prohibits persons from recovering monetary damages from State officials acting in their
official capacities unless the State has waived its immunity. Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71 (1989); Kruger v. Nebraska, 820 F.3d 295, 301 (8th Cir. 2016).
Defendants are either State officials or departments of the State itself. The State has not
waived immunity in federal court. See, e.g., DeGidio v. Perpich, 612 F. Supp. 1383, 1388–
89 (D. Minn. 1985). The Court therefore finds that Defendants are entitled to sovereign
Accordingly, the Court will dismiss Plaintiffs claims seeking monetary damages
against Defendants in their official capacity.
C. Qualified Immunity
“Qualified immunity shields a public official from damage liability unless the
official’s actions violate ‘clearly established statutory or constitutional rights of which a
reasonable person would have known.’” S.M. v. Krigbaum, 808 F.3d 335, 339 (8th Cir.
2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When qualified immunity
is sought against the supervisor of an actor that actually committed the constitutional
violation at issue, the supervisor may be “liable under § 1983 if either his direct action or
his ‘failure to properly supervise and train the offending employee’ caused the
constitutional violation at issue.” Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014)
(quoting Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001)). For claims asserted against
either the actor or the supervisor, Plaintiffs must make a threshold showing that their
constitutional rights were violated.
Assuming without deciding that Plaintiffs claims are true—that the State is
considering non-violent offenders who are within half-a-year of their release date for
early release due to COVID-19 but is not considering violent offenders for the same early
release—Plaintiffs’ Fourteenth Amendment claim still fails. “Absent a threshold showing
that [Plaintiffs are] similarly situated to those who allegedly receive favorable treatment,
[Plaintiffs do] not have a viable equal protection claim.” Klinger v. Department of
Corrections, 31 F.3d 727, 731 (8th Cir. 1994). Plaintiffs have not shown that they, as violent
offenders, are similarly situated to non-violent offenders allegedly receiving disparate
treatment. See id. at 731–32 (noting that “violent and predatory” conduct may be
considered when determining the “threshold” issue of whether an inmate is similarly
Accordingly, the Court finds Defendants are entitled to qualified immunity for
Plaintiffs’ claims for damages against them in their personal capacities. Additionally,
because Plaintiffs have not pleaded a viable Constitutional claim, the Court will also grant
Defendants’ motion to dismiss plaintiffs’ remaining claims for injunctive relief.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Defendants’ Motion to Dismiss [Docket No. 30] is GRANTED without prejudice.
2. Plaintiffs’ Motions [Docket Nos. 3, 6, 7, 8, 12, 13, 17, 19, 36, 37, 38, 51, and 53]
are DENIED as MOOT.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: September 14, 2020
at Minneapolis, Minnesota.
JOHN R. TUNHEIM
United States District Court
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