Powell v. Casey et al

Filing 130

ORDER granting in part and denying in part 110 Motion to Alter/Amend/Supplement Pleadings.(Written Opinion) Signed by Magistrate Judge Hildy Bowbeer on 9/9/2021. cc: Powell with USM form. (MJA) Modified text on 9/9/2021 (CLK).

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Charles Y. Powell,

Case No. 20-cv-1142 (PJS/HB)
Plaintiff,

v.

ORDER ON MOTION TO AMEND
COMPLAINT

Daniel Marland Casey, Jeffery Thomas
Austreng
Defendants.
Jeffrey Thomas Austreng,
Third Party Plaintiff,

v.
The State of Minnesota/Department of
Corrections,
Third Party Defendant.

HILDY BOWBEER, United States Magistrate Judge
Before the Court in this prisoner’s rights case is Plaintiff Charles Y. Powell’s motion
to amend his complaint (2nd Mot. Amend. [ECF No. 110-1].) For the reasons set forth
below, the Court will grant in part and deny in part the motion.

1

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I.

Background
Plaintiff Charles Powell filed his initial complaint in this case on May 11, 2020.

(Compl. [ECF No. 1].) Powell’s original complaint asserted causes of action against
Defendants Daniel Casey and Jeffrey Austreng in their individual capacities, and the
Minnesota Department of Corrections (the “DOC”). (Compl. at 1.) The Complaint was
submitted on a form, Part IV of which asks for a “Statement of the Claim.” In Part IV,
Powell alleged that Casey and Austreng “used extreme excessive force against [him] for
[sic] logical reasons other than their own malicious satisfaction.1 [Powell] was compliant
but still they brutally beat [him] while [he] was in handcuffs, shackles, and strapped
inside of a restraint chair for over 45 minutes. Its all on video footage . . . .” (Id. at 4.)
Part V of the form, Powell’s prayer for relief, included “get[ting] back all of the extended
incarceration they gave [him] and . . . $10,000,000 (ten million dollars).”
Both the DOC and Austreng filed motions to dismiss. (DOC Mot. Dism. [ECF
No. 15]; Austreng Mot. Dism. [ECF No. 51].) For the reasons set forth in an amended
Report and Recommendation (Am. R&R [ECF No. 58]) that was adopted by the
Honorable Patrick J. Schiltz, United States District Judge (Feb. 12, 2021 Ord. Adopting
Am. R&R [ECF No. 70]), the Court granted the DOC’s motion to dismiss Powell’s
claims against it without prejudice and held that Powell cannot seek a shorter prison
sentence in a civil rights action brought under 42 U.S.C. § 1983. (Id., see also Am. R&R
at 6).

The Amended Complaint corrects this typo so that it reads “for no logical
reasons . . . .”
1

2

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The Court denied Austreng’s motion to dismiss, however. (June 2, 2021 Ord.
Adopting R&R [ECF No. 98].) Austreng then filed an answer to the Complaint in which
he asserted a third-party complaint against the DOC, thus bringing it back into the case as
a third-party defendant. (Austreng Ans. [ECF No. 101].) The DOC has moved to
dismiss Austreng’s third party complaint based on Eleventh Amendment
immunity. (DOC Mot. Dism. Third-Party Compl. [ECF No. 113].) That motion is
scheduled for oral argument before the undersigned on October 5, 2021 [ECF No. 114].
The Court entered a Pretrial Scheduling Order on March 8, 2021. [ECF No. 76.]
The scheduling order established a deadline of June 1, 2021, by which any motions to
amend the pleadings had to be filed. On June 1, Powell filed a motion for leave to amend
his complaint. (1st Mot. Amend [ECF No. 97].) The Court denied the motion without
prejudice because the motion failed to include the proposed amendments and to comply
with certain local rules. (June 3, 2021 Ord. [ECF No. 99].) The Court indicated,
however, that Powell could file a renewed motion “if after consultation with a volunteer
attorney from the FBA Pro Se Project he can make the required showing of good cause
for an extension of the deadline for filing motions to amend under Local Rule 16.3(b),
and otherwise complies to the extent practicable with Local Rules 7.1(b) and 15.1.” (Id.)
On July 23, 2021, Powell filed a proposed Amended Complaint (PAC [ECF No. 110])
together with a Proposal to Amend Complaint (2nd Mot. Amend), which this Court
construed as a renewed motion to amend his Complaint. (See Briefing Ord. [ECF No.
111].) Defendants Jeffrey Austreng and Daniel Casey filed responses stating that they
did not oppose Powell’s motion. [ECF Nos. 112, 123.] The DOC, however, filed a
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memorandum in opposition to Powell’s motion to amend, arguing that the Court should
deny the motion because the proposed amendments would be futile. (DOC Mem. Opp.
[ECF No. 124].)
The PAC is four pages long. The first page is a caption, which now includes as
additional defendants “Lt. [Brian]2 Bradley” and “Several John/Jane Doe’s” who are
being “sued in their individual and official capacity’s.” (PAC at 1.) The second page
begins as a handwritten Part IV of the form complaint.3 The Statement of the Claim is
divided between the “Original Complaint” and the “Amended Complaint.” (Id. at 2.) In
the Amended Complaint section, Powell alleges that “Lt. Bradley and several J. Does
were present during the time of the brutal beating and did not attempt to intervene in
good faith so they all should be held accountable for failure to protect under the 8th and
14th Amendment. . . . I know for a fact that it was more than two correctional officers
present . . . Lt. Bradley is the supervisor of all officers.” (Id. at 2-3.)
The prayer for relief in the PAC adds a request for a declaratory judgment stating
that “the physical abuse of the Plaintiff by defendants Daniel Casey, Jeffrey Austreng and
the failure to protect by Lt. Bradley et al violated the Plaintiff’s rights under the Eighth
Amendment & 14th Amendment to the United States Constitution and constituted an
assault and battery under state law.” (Id. at 3-4.) The prayer also clarifies that Powell

Powell’s Reply [ECF No. 129] provides Lieutenant Bradley’s first name.
Parts I-III of the original Complaint form, which ask about prior litigation, where
the plaintiff is currently incarcerated, and what steps were taken to address the issues
raised in the complaint through the prisoner grievance procedure, were not replicated in
the PAC, and so the Court assumes that information has not changed. (See Compl. at 1–
4.)
2
3

4

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seeks $5 million in compensatory damages for “physical and emotional injuries” and $5
million in punitive damages. (Id. at 4.) Beneath the new prayer for relief is Part V of the
original complaint. (Id.)
II.

Legal Standard
Pro se complaints are to be construed liberally. See Estelle v. Gamble, 429 U.S.

97, 106 (1976). “If the essence of an allegation is discernible . . . then the district court
should construe the complaint in a way that permits the layperson’s claim to be
considered within the proper legal framework.” Stone v. Harry, 364 F.3d 912, 915 (8th
Cir. 2004). But the Court need not assume facts that are not alleged. Id. Moreover, pro
se litigants are not excused from compliance with relevant rules of the procedural and
substantive law. See Schooley v. Kennedy, 712 F.2d 372, 373 (8th Cir. 1983).
After a responsive pleading, “a party may amend its pleading only with the
opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).
In the absence of any apparent or declared reason – such as 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, futility of amendment, etc. – the leave
should, as the rules require, be ‘freely given.’
Foman v. Davis, 371 U.S. 178, 183 (1962). Futility “means the district court has reached
the legal conclusion that the amended complaint could not withstand a motion to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Cornelia I. Crowell GST
Tr. v. Possis Med., Inc., 519 F.3d 778, 782 (8th Cir. 2008). “[A] pro se complaint, even
‘inartfully pleaded,’ must be held to ‘less stringent standards than formal pleadings
drafted by lawyers,’ and can only be dismissed if the plaintiff fails to allege sufficient
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facts to state a facially plausible claim to relief.” Rinehart v. Weitzell, 964, F.3d 684,
687 (8th Cir. 2020), quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).
Where a plaintiff seeks to amend the complaint after a court-ordered deadline for
doing so, the amendment is permitted only “for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b)(4); see Sherman v. Winco Fireworks, Inc., 532 F.3d 709,
716 (8th Cir. 2008). “The primary measure of good cause is the movant’s diligence in
attempting to meet the order’s requirements.” Sherman, 532 F.3d at 716 (quotation
omitted).
III.

Analysis
A.

Whether Powell Has Shown Good Cause to File His Motion After the
Applicable Deadline Set by the Scheduling Order

The DOC first argues that Powell has not shown good cause for modifying the
scheduling order to allow him to seek leave to amend his Complaint after the June 1
deadline. In moving to amend the complaint after the deadline established by the court’s
scheduling order, a plaintiff bears the initial burden of showing good cause for the delay
before the court will consider whether the amendment is appropriate. See Sherman, 532
F.3d at 716, quoting Leary v. Deaschner, 349 F.3d 888, 909 (6th Cir. 2003).
As mentioned, Powell attempted to comply with the scheduling order by filing a
timely motion to amend his complaint. But without the proposed amendments, this Court
could only deny the motion. See Wolgin v. Simon, 722 F.2d 389, 394-95 & n.10 (8th Cir.
1983) (holding that a party must submit a proposed amendment and granting leave to
amend without such is an abuse of discretion). The Court denied the motion without
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prejudice, however, to give Powell, who is pro se, an opportunity to consult with an
attorney and then file a new motion showing good cause to amend his complaint. Powell
renewed his motion to amend fifty days later, stating that he did not file sooner because
he “didn’t know the identities of all the officers were who present at the time of the
assault” as he was unable to see the video footage of the incident. (2nd Mot. Amend at
1.)4
Having initially filed a timely motion, pursued a course of action that this Court
directed in its order denying the original motion to amend, and explained the reason for
the additional delay in a way that appears to be due to no fault of his own, the Court finds
Powell diligently attempted to meet the requirements of this Court’s orders.
In addition, the Court finds no indication that any party would be prejudiced by
the delay. On the contrary, Austreng and Casey have consented, and the DOC has
identified no respect in which it will suffer prejudice by reason of Powell’s having filed
the instant motion in mid-July rather than June 1. Indeed, the DOC’s motion to dismiss
Austreng’s third-party complaint against it will not be heard until early October.
Accordingly, the Court finds Powell has shown good cause for filing this motion after the

4

Indeed, it appears Powell may not even have had access to the video until on or
about August 4, 2021, after he filed this motion, when the DOC served its motion to
dismiss Austreng’s third-party complaint. (Cert. Serv. [ECF No. 120].) Exhibits A
through D, which were served on Powell along with the motion, are compact discs that
include redacted video footage of the incident. (Ghreichi Decl. Supp. Mot. Dism. ThirdParty Compl. ¶ 3-7.)
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June 1, 2021 deadline and that there was no undue delay or unfair prejudice. See
Sherman, 532 F.3d at 716.5
B.

Whether Powell’s Proposed Amendments to His Complaint Would Be
Futile

The DOC also argues that Powell’s motion should be denied because his proposed
amendments would be futile.6

The DOC also identifies respects in which Powell’s motion failed to follow this
Court’s directive to comply with Local Rules 16.3(b), 15.1, and 7.1(b). As this Court has
previously stated, even pro se litigants are expected to comply with the rules. But the
Court also recognizes the practical challenges for a prisoner, particularly during the past
year when restrictions due to COVID have seriously impeded the ability of those
incarcerated to access prison library and computer resources. In fact, the Court’s prior
order recognized the limitations placed on pro se prisoner plaintiffs in ordering
compliance with local rules “to the extent practicable.” While the Court does not
condone Powell’s failure to file pleadings that strictly adhere to the rules, Powell’s
motion substantially complied with the rules, most importantly in clearly identifying the
respects in which his PAC adds new matter to his original complaint. Furthermore, none
of the parties contend that they were prejudiced or impeded by any deficiencies.
Accordingly, the Court will not deny Powell’s motion because of those deficiencies, but
warns Powell that he will not get a pass on compliance with the rules where he has the
capability of complying, even if difficult.
6
The Court notes that the DOC’s “standing” to argue the futility of amendments
that seek to assert claims against proposed new—but as yet absent—defendants is far
from certain. Compare Custom Pak Brokerage, LLC v. Dandrea Produce, Inc., 2014 WL
988829 at *2 (D. N.J. February 27, 2014) (concluding existing parties could not raise
futility on behalf of prospective parties, but could raise prejudice resulting from delay),
with Gardner v. Minnesota, 2019 WL 1875590 at *3 (D. Minn. April 26, 2019)
(recognizing absence of binding authority, discussing persuasive cases, and deciding to
consider futility arguments made by existing defendant regarding prospective defendants
where ignoring the opposition to a motion to amend would “almost certainly” lead to the
absent defendants filing a later motion to dismiss on the same grounds). See also United
States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (discussing party presentation
principle). As none of the parties raised that issue, however, the Court will address the
DOC’s futility arguments on the merits.
5

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Futility “means the district court has reached the legal conclusion that the amended
complaint could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal
Rules of Civil Procedure.” Cornelia I. Crowell GST Tr., 519 F.3d a 782. Construed
liberally, a pro se complaint can only be dismissed if the plaintiff fails to state a facially
plausible claim to relief. See Rinehart, 964, F.3d at 687. See also Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).

The court must take all well-pleaded facts alleged in the

complaint as true and make reasonable inferences in favor of the plaintiff. See
Vandevender v. Sass, 970 F.3d 972, 975 (8th Cir. 2020). The factual content must allow
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. See Kulkay v. Roy, 847 F.3d 637, 641-42 (8th Cir. 2017).
In his PAC, Powell seeks to assert 1) claims under the Eighth Amendment against
Bradley and the Doe Defendants; 2) claims under the Fourteenth Amendment against
Bradley and the Doe Defendants; and 3) state law claims for assault and battery claims
against all defendants. (PAC at 3–4.) The PAC states that “all new Defendants are being
sued in their individual and official capacit[ies].” (PAC at 1.)7

7

The DOC also objects to what it views as an inappropriate attempt through the
PAC to revive Powell’s request for reduced incarceration, which was previously
dismissed. (Feb. 12, 2021 Ord. Adopting R&R; Am. R&R at 6.) However, although the
PAC includes the original Section V Request for Relief from the original Complaint
asking that Powell get back “all of extended incarceration they gave me” (compare
Compl. at 5 with PAC at 4), the Court does not interpret this as a request by Powell to
reassert his demand for a reduction in his incarceration. Unable to easily create a “redline
version” of his PAC, Powell instead carefully replicated Sections IV and V of his original
complaint in all respects (save the correction of a couple of errors) and then set forth his
proposed amendments separately. Immediately preceding Section V, the PAC states a
new request for monetary relief in the form of both compensatory and punitive damages,
clearly intending to supersede the request for relief in the original complaint that included
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1. Proposed Eighth Amendment Claims Against Bradley and Doe
Defendants
To assert a claim under the Eighth Amendment that the proposed new defendants
were deliberately indifferent to a substantial risk of serious harm to Powell, the PAC
must plausibly allege that (1) there was a substantial risk of serious harm to the inmate,
and (2) that each such defendant actually knew of the risk and failed to respond
reasonably to it. Young v. Selk, 508 F.3d 868, 873 (8th Cir. 2007); Curry v. Crist, 226
F.3d 974, 977 (8th Cir. 2000). Thus, there is both an objective and a subjective
component to the claim. Id. Mere negligence or inadvertence is not deliberate
indifference. Kulkay, 847 F.3d at 643. The DOC contends the PAC cannot plausibly
assert such a claim because the allegations are contrary to video footage of the beating.
In addition, it argues Powell cannot plausibly allege Bradley and the Doe Defendants
were deliberately indifferent to a substantial risk of serious harm because the beating was
a surprise attack that occurred over a matter of seconds, too short a time to afford them a
reasonable opportunity to stop the attack.
In support of these arguments, the DOC relies upon the videos that were filed and
served as exhibits to its motion to dismiss Austreng’s third party complaint. (See
Ghreichi Decl. Supp. Mot. Dism. 3rd Party Compl. Exs. A-D [ECF Nos. 117, 117-1,
118]). Because the videos were not appended to Powell’s complaint or PAC, the Court

the request to “get back” the extended incarceration. In short, nothing in the PAC
suggests Powell seeks to revive that claim or revisit the Court’s dismissal of it, and
nothing in this Order should be deemed to do so.
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must first address whether it can consider the videos in assessing the sufficiency of the
PAC in the face of the DOC’s futility argument.
“The court must generally ignore materials outside the pleadings.” Porous Media
Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). “But it may consider some
materials that are part of the public record or do not contradict the complaint, as well as
materials that are necessarily embraced by the pleadings.” Id.; see also Pinson v.
Hadaway, 2020 WL 5543749 at *2 (D. Minn. Sept. 16, 2020). If a complaint alleges the
contents of a document but the document is not attached to the complaint, the document
may be considered as “necessarily embraced” by the pleadings if the document’s
authenticity is not questioned. See Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151
(8th Cir. 2012) (letters). Cf. Waters v. Madson, 921 F.3d 725, 731 n.2 (8th Cir. 2019)
(considering undisputed edited video and unedited dashboard camera footage). “[T]he
court has complete discretion to determine whether or not to accept any material beyond
the pleadings that is offered in conjunction with a Rule 12(b)(6) motion.” Stahl v. U.S.
Dep’t of Agric., 327 F.3d 697, 701 (8th Cir. 2003) (quoting 5A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1336, at 491 (2d ed. 1990)).
The DOC argues that because the PAC states the attack was captured on video, the
videos of the attack submitted by the DOC are “necessarily embraced by the complaint”
and therefore the Court can consider them in assessing the DOC’s futility arguments.
(DOC Mem. Opp. at 8-10.) The DOC is correct that both the Complaint and the PAC
expressly mention the existence of video footage of the incident. (Compl. at 4; PAC at
1.) But the DOC’s argument is necessarily premised on the assumption that the videos it
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submitted are authentic and complete copies of the video referred to in Powell’s
complaint and PAC. Powell has not stipulated to that—in fact, he had not even seen the
videos proffered by the DOC at the time he filed the PAC—and the Court does not have
an adequate way to verify it independently. This distinguishes the situation in this case
from that in Loomer v. Tlaib, in which the court considered video footage on a Rule
12(b)(6) motion to dismiss when both sides had submitted the same footage by directly
linking to it. 2019 WL 6840184 at *2 n.3 (D. Minn. Dec. 16, 2019). For this reason
alone, the Court would decline to consider the DOC’s video Exhibits A through D in
assessing the sufficiency of the PAC.
But the Court has an additional concern about the DOC’s argument based on the
videos. The argument not only asks the Court to assume they are authentic, but it asks
the Court to assume they show the entirety of the incident that underlies Powell’s lawsuit,
including the actions and inactions of all involved, so comprehensively and
unequivocally that they leave no possible room for an interpretation of the events that
would support the claims Powell seeks to assert in the PAC. See Jones v. City of
Cincinnati, 521 F.3d 555, 561-62 (6th Cir. 2008) (noting the trouble of incomplete
evidence providing a distorted view of the events at issue). That is a far different
proposition from, for example, asking the Court to consider a specific contract that was
not appended to a complaint alleging the breach of that contract. Here, the videos are
certainly evidence of the events at the heart of Powell’s lawsuit, and they would appear to
be consistent in many respects with the DOC’s version of those events. But the Court
cannot conclude the videos are so comprehensive and unequivocal that they abrogate
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Powell’s right at the pleadings stage to have the allegations in the PAC taken as true and
therefore render his claims based on those allegations futile.
Having determined that it cannot rely on the videos submitted by the DOC at this
stage, the Court must examine whether the PAC on its face plausibly alleges facts that
support the requisite elements of an Eighth Amendment claim. In arguing that it does
not, the DOC relies on cases where an inmate suffered a beating by another inmate and a
correctional officer failed to prevent that beating. See e.g., Vandevender, 970 F.3d at
975–76. In those circumstances, the claim must be dismissed if the complaint does not
plausibly allege that the officer knew of the offending inmate’s propensity for violence or
risk of harm to the plaintiff. See id. at 976.
But the PAC asserts a failure-to-intervene claim, not a failure-to-prevent claim.
An officer may be liable for failure to intervene to prevent the use of excessive force by
another officer when “(1) the officer observed or had reason to know that excessive force
would be or was being used, and (2) the officer had both the opportunity and the means to
prevent the harm from occurring.” Nance v. Sammis. 586 F.3d 604, 612 (8th Cir. 2009);
see Krout v. Goemmer, 583 F.3d 557, 565-66 (8th Cir. 2009) (citing Buckner v. Hollins,
983 F.2d 119, 122-23 (8th Cir. 1993)). The PAC alleges that “Daniel Casey and Jeffery
Austreng . . . beat [Powell] while [he] was in handcuffs, shackles, and strapped inside of
a restraint chair for over 45 minutes,” and that “Lt. Bradley and several J. Does were
present during the time of the brutal beating and did not attempt to intervene.” (PAC at
2-3.) “A prison official acts with deliberate indifference to an inmate’s safety when the
official is present at the time of an assault and fails to intervene or otherwise act to end
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the assault.” Williams v. Mueller, 13 F.3d 1214, 1216 (8th Cir. 1994). The Court finds
that the PAC, while sparse, sufficiently alleges facts that, taken as true, and construed in
the light most favorable to Powell, support the proposed amendment to assert an Eighth
Amendment failure-to-intervene claim against Bradley and the Doe Defendants and
would therefore not be futile.
However, that claim may properly be asserted only as a claim for damages against
Bradley and the Doe Defendants in their individual capacities. The Eleventh Amendment
bars a damages action when state officials are sued in their official capacities. See
Kentucky v. Graham, 473 U.S. 159, 169 (1985). A plaintiff may seek injunctive relief
against state officials sued in their official capacities, but the PAC does not seek
injunctive relief against any of the proposed new defendants.8 As a result, any attempted
claims against Bradley and the Doe Defendants in their official capacities would be futile.
Accordingly, the Court will grant Powell’s motion to amend his complaint to add an
Eighth Amendment claim against Bradley and the Doe Defendants in their individual
capacities, but denies his motion to amend his complaint to the extent it seeks to add any
claim (under the Eighth Amendment or otherwise) against them in their official
capacities.
2. Proposed Fourteenth Amendment Claim against Bradley and the Doe
Defendants
Although Powell requests a “declaratory judgment,” he does not cite the
Declaratory Judgment Act, 28 U.S.C. § 2201, and, construed liberally, it appears he is
simply asking for a finding that the defendants are liable under the asserted causes of
action, not for a declaratory judgment as contemplated by the Declaratory Judgment Act.
In any event, a proclamation of liability for past acts is not a proper declaratory judgment.
See Justice Network Inc. v. Craighead County, 931 F.3d 753, 764 (8th Cir. 2019).
8

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Powell also seeks to assert a claim against Bradley and the Doe Defendants under
the Fourteenth Amendment. (PAC at 3.) But as other courts have recognized, a plaintiff
may not assert a Fourteenth Amendment claim that is simply redundant of an Eighth
Amendment claim. See Curry v. Fed. Bureau of Prisons, No. 05-cv-2781 (PJS/JSM),
2007 WL 2580558 at *10 (D. Minn. Sept. 5, 2007), quoting United States v. Lanier, 520
U.S. 259, 272 n.7 (1997). Accordingly, the Court denies Powell’s motion insofar as it
seeks to assert a claim against Bradley and the Doe Defendants under the Fourteenth
Amendment.
3. Proposed State Law Claims for Assault and Battery Against All
Defendants
The DOC construes the PAC also to include claims for assault and battery under
Minnesota law. (DOC Mem. Opp. at 2.) This is based on the PAC’s request for a
“declaratory judgment” that “the physical abuse of the Plaintiff by defendants Daniel
Casey, Jeffery Austreng and the failure to protect by Lt. Bradley et al violated the
Plaintiff’s right under the Eighth Amendment & 14th Amendment to the United States
Constitution and constituted an assault and battery under state law,” followed by a
request for an award of compensatory and punitive damages against all defendants.
(PAC at 3.) The Court agrees that, construed liberally, the PAC seeks to add a cause of
action for assault and battery under state law against not only the proposed new
defendants but also against Austreng and Casey.
As to the existing Defendants Casey and Austreng, the Court will allow Powell to
amend the complaint to assert causes of action them for assault and battery under
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Minnesota law. Casey filed a letter stating that he did not oppose the motion to file an
amended complaint. (ECF No. 123.) And although Austreng’s letter consenting to the
amendments stated “he is not consenting to any amendments to the complaint which
would plead . . . new causes of action as against Defendant Austreng” (ECF No. 112 at
1), Austreng failed to brief the issue, and the Court will not make arguments for him.
However, the Court will deny Powell’s motion to amend the complaint insofar as
it seeks to assert claims for assault and battery under state law against Bradley and the
Doe Defendants. “An assault is an unlawful threat to do bodily harm to another with
present ability to carry the threat into fact.” Dahlin v. Fraser, 288 N.W. 851, 852 (Minn.
1939). Common-law civil battery is an “intentional, unpermitted offensive contact with
another.” Johnson v. Morris, 453 N.W.2d 31, 40 (Minn. 1990). The PAC does not plead
any facts that would plausibly support a claim that Bradley or the Doe Defendants uttered
threats directed at Powell or made offensive contact with Powell. Therefore, the
proposed amendment would be futile as against Bradley and the Doe Defendants.

Accordingly, IT IS HEREBY ORDERED that
1. Powell’s motion to amend his complaint (ECF No. 110-1) is GRANTED with
respect to:
a. The proposed new claims under the Eighth Amendment against Lt. Brian
Bradley and the Doe Defendants in their individual capacities; and
b. The proposed new claims against Jeffrey Austreng and Daniel Casey for
assault and battery under Minnesota state law.
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2. Powell’s motion to amend his complaint is DENIED in all other respects.
3. For the sake of efficiency, the Clerk’s Office is directed to refile ECF No. 110 as a
standalone docket entry, which shall serve as the operative pleading except for
those portions specifically disallowed by this Order. The Clerk’s Office is further
directed to include in the docket text a reference to this Order.
4. The Clerk’s Office is directed to provide Marshal Service Forms (Form USM-285)
to Powell. Powell must submit a properly completed Marshal Service Form (Form
USM-285) for Lt. Brian Bradley in his individual capacity within 30 days of this
Order.
5. After the return of the completed Marshal Service Form, the Clerk of Court is
directed to seek waiver of service from Lt. Brian Bradley in his individual capacity
consistent with Rule 4(d) of the Federal Rules of Civil Procedure.
6. If a defendant sued in his individual capacity fails without good cause to sign and
return a waiver within 30 days of the date the waiver is mailed, the Court will
impose upon that defendant the expense later incurred in effecting service of
process. Absent a showing of good cause, reimbursement of the costs of service is
mandatory and will be imposed in all cases in which a defendant does not sign and
return a waiver of service form. See Fed. R. Civ. P. 4(d)(2).

Dated: September 9, 2021

/s Hildy Bowbeer
HILDY BOWBEER
United States Magistrate Judge

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