Aery v. Bethel et al
Filing
5
ORDER ACCEPTING REPORT AND RECOMMENDATION. Aery's objection 4 is OVERRULED. The Report and Recommendation 3 is ACCEPTED. The matter is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii). Aery's application to proceed in forma pauperis 2 is DENIED. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Nancy E. Brasel on 5/6/2022 (KMW)
CASE 0:22-cv-00456-NEB-DTS Doc. 5 Filed 05/06/22 Page 1 of 5
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JAMES PAUL AERY,
Plaintiff,
v.
PORT BETHEL, SUE GIROT, in her
individual and official capacities, and
EMPLOYEES, in their individual and
official capacities,
Defendants.
Case No. 22‐CV‐456 (NEB/DTS)
ORDER
Plaintiff James Paul Aery sued the Bethel Port Rehabilitation Program and its
employees under 42 U.S.C. Section 1983. Before the Court is Aery’s request to proceed in
forma pauperis (“IFP”) because he contends he cannot pay the costs of his suit. In a Report
and Recommendation, United States Magistrate Judge David T. Schultz recommends
denying Aery’s IFP application because his complaint fails to state a claim on which relief
may be granted. Aery objects to the R&R. For the reasons below, the Court overrules
Aery’s objections, accepts the R&R, denies Aery’s IFP application, and dismisses the
action without prejudice.
CASE 0:22-cv-00456-NEB-DTS Doc. 5 Filed 05/06/22 Page 2 of 5
BACKGROUND
The R&R details the facts of the case, (ECF No. 3 (“R&R”) at 2), which are
undisputed. The Court briefly lays out the facts necessary to rule on the objection.1
While apparently a Port Bethel client, Aery alleges that defendant Sue Girot, a Port
Bethel counselor, told him he “ma[d]e her so mad she could hit [him],” before calling
Aery’s parole officer to have him arrested. (Id.) Aery contends that Girot’s statement and
the subsequent report to the parole officer were unconstitutional. (Id.) Aery argues that
Port Bethel failed to supervise Girot and knowingly permitted Girot’s actions. (ECF No.
1 at 6.) Aery also alleges that Port Bethel employees unlawfully kept some of his things
and that Port Bethel violated the ADA when it failed to protect him throughout these
encounters. (R&R at 2.)
ANALYSIS
Because Aery is a prisoner seeking to proceed IFP, the Court may dismiss the case
if he fails to state a claim on which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B)(ii),
1915A(b)(1); see Goodroad v. Bloomberg, 129 F.3d 121, 121 (8th Cir. 1997) (per curiam)
(applying Rule 12(b)(6) standard of review to dismissal under 28 U.S.C. Section 1915(e)).
The Court must accept “the well‐pleaded allegations in the complaint as true and draw[]
all reasonable inferences in favor of the plaintiff.” Varga v. U.S. Bank Nat. Assʹn, 764 F.3d
833, 838 (8th Cir. 2014) (citations omitted). Additionally, Aery’s complaint “must contain
1
In so doing, the Court cites the R&R and incorporates the citations it contains.
2
CASE 0:22-cv-00456-NEB-DTS Doc. 5 Filed 05/06/22 Page 3 of 5
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face. A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 838–39 (quotation marks and citations omitted). Although pro se
complaints are to be construed liberally, Aery still must allege sufficient facts to support
his claims.2 Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). The Court reviews the R&R’s
determination de novo. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
State actors. Aery sues Port Bethel and its employees under Section 1983 for
violating his constitutional rights. But nowhere in his complaint does Aery allege that the
defendants are state actors.3 “Only state actors can be held liable under Section 1983.”
Youngblood v. Hy‐Vee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir. 2001) (citing Adickes v.
S.H. Kress & Co., 398 U.S. 144, 150 (1970)). Aery’s Section 1983 claims fail on this ground
alone.
Constitutional claims. Even assuming the defendants are state actors, Aery’s claims
cannot survive because he failed to allege sufficient facts to state a plausible constitutional
In his objections, Aery asserts that the R&R did not consider his complaint liberally
enough. (ECF No. 4 (“Obj.”) at 1.) But the R&R stated and applied the proper standard.
(R&R at 2–4.) Even making every possible inference from the facts Aery pleads, the facts
do not state a claim under law.
3 Aery contends in his objection that “[t]reatment facilities and the staff work so closely
with the state officials that it is basically inseparable in context of the powers they wield
knowingly or not” and that the facility is “approved and funded by state and federal
money. . . .” (Obj. at 1–2.)
2
3
CASE 0:22-cv-00456-NEB-DTS Doc. 5 Filed 05/06/22 Page 4 of 5
claim. First, Aery contends Girot verbally threatened him, but his contention is not
actionable under Section 1983. McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993). Second,
Aery alleges that Girot called his parole officer and made a false report, leading to his
wrongful arrest. His allegation fails to state a claim because it is conclusory; Aery
provides no facts for the Court to access what about the arrest was wrongful. Third, Aery
argues Port Bethel employees stole his belongings after he was arrested. Assuming Aery
believes the theft deprived him of a property interest without due process of law, a state‐
law tort claim would provide Aery sufficient relief, so a Section 1983 claim is precluded.
Reese v. Kennedy, 865 F.2d 186, 187 (8th Cir. 1989). Fourth, Aery’s supervisory liability
claim against Port Bethel fails because he has not established an underlying constitutional
violation. Webb v. City of Maplewood, 889 F.3d 483, 487 (8th Cir. 2018).
ADA. Aery’s ADA claim fails under Rule 12(b)(6) because Aery has only provided
conclusionary statements and pleads no specific facts to support the claim.
State claims. It appears Aery pleads state law claims including theft. Jurisdiction
over Aery’s state law claims exists solely by virtue of the supplemental jurisdiction
statute which provides jurisdiction over state law claims forming part of the same “case
or controversy” as federal claims. 28 U.S.C. § 1367(a). But the exercise of supplemental
jurisdiction is discretionary if the Court has dismissed all claims over which it has original
4
CASE 0:22-cv-00456-NEB-DTS Doc. 5 Filed 05/06/22 Page 5 of 5
jurisdiction. Id. § 1367(c)(3). Accordingly, the Court declines to exercise supplemental
jurisdiction over Aery’s state law claims.
CONCLUSION
Based on the foregoing and on all the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.
Aery’s objection (ECF No. 4) is OVERRULED;
2.
The Report and Recommendation (ECF No. 3) is ACCEPTED;
3.
The matter is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C.
Section 1915(e)(2)(B)(ii); and
4.
Aery’s application to proceed in forma pauperis (ECF No. 2) is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: May 6, 2022
BY THE COURT:
s/Nancy E. Brasel
Nancy E. Brasel
United States District Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?