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Favors v. Hoover

United States District Court, Eighth Circuit

December 12, 2013

JOSEPH ANTHONY FAVORS, Plaintiff,
v.
MICHELLE HOOVER, CAL LUDEMAN, LUCINDA JESSON, DANIEL STORKAMP, DENNIS BENSON, JEANINE HEBERT, LORI SWANSON, LINDA BERGLIN, RALPH SCHMIDT, DAVID PRESCOTT, MANDY TORGERSON, ROB ROSE, JAMIE JUNGERS, DIANNA MAGAARD, DEB KONIESKA, DEB JAMES, JULI ROSE, BETH VIRDEN, JOANN FABIAN, JEFFREY L. PETERSON, DEBORAH J. SCHADEGG, CHRISTOPHER BORELAND, MARK MEHL, JOHN KING, MARNIE DOLLINGER, TIM GORR, ANN LINKERT (ZIMMERMAN), JEAN SEYKORA, THOMAS LUNDQUIST, CHAD MESOJEDEC, TODD WHITE, (O.D.) GULLICKSON, TERRY KNIESEL, NATALIE STEINERT, LESLIE BARFKNETCH, DENNIS GENEREAU, JR., JAMIE KOZISCH, TRACY GEBHART, KEVIN BROWNE, CRAIG BERG, ERIC MELBY, STEVE YOUNGST, JON HIBBER, KEVIN SCHLERER, JENA JONES, RICK O'CONNER, ROD LIGGET, EYVETTE ANDERSON, JOHN HOFFMAN, JENNY CHESTBROUGH, PHIL WILDER, OFFICE OF HEALTH FACILITY COMPLAINTS, DHS OFFICE OF MALTREATMENT COMPLAINTS, OFFICE OF LICENSING FOR THE SECURITY HOSPITAL, THE STATE OF MINNESOTA, and REBECCA RANEM, Defendants.

Joseph Anthony Favors, 100988, Minnesota Correction Facility - Moose Lake, pro se plaintiff.

Michelle Hoover, pro se defendant.

Anthony R. Noss, Ricardo Figueroa, and Kelly S. Kemp, Assistant Attorneys General, MINNESOTA ATTORNEY GENERAL'S OFFICE, for defendants Dennis Benson, Lucinda Jesson, Daniel Storkamp, Jeanine Herbert, Lori Swanson, Ralph Schmidt, Mandy Torgerson, Rob Rose, Dianna Magaard, Deb James, Juli Rose, Beth Virden, Joann Fabian, Jeffrey L. Peterson, Deborah J. Schadegg, John King, Ann Linkert, Jean Seykora, Thomas Lundquist, Chad Mesojedec, Todd White, (O.D.) Guillickson, Terry Kniesel, Jamie Kozisch, Tracy Gebhart, Craig Berg, Steve Youngst, Jon Hibber, Kevin Schlerer, Jena Jones, Rick O'Conner, Eyvette Anderson, Office of Health Facility Complaints, DHS Office of Maltreatment Complaints, Office of Licensing for the Security Hospital, State of Minnesota, and Rebbeca Ranem.

Andrea G. White, Assistant Dakota County Attorney, DAKOTA COUNTY ATTORNEY'S OFFICE, for defendants Christopher Boreland and Mark Mehl.

James R. Andreen, ERSTAD & RIEMER, PA, for defendant Dennis Genereau, Jr.

MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

JOHN R. TUNHEIM, District Judge.

Plaintiff Joseph Anthony Favors is civilly committed at the Minnesota Sex Offender Treatment Program in Moose Lake, Minnesota. On February 21, 2013, Favors filed a complaint under 42 U.S.C. ยงยง 1981, 1983, 1985, and 1986 alleging various civil rights violations and naming 56 individuals and state agencies as defendants. On October 25, 2013, United States Magistrate Judge Leo I. Brisbois issued an Amended Report and Recommendation ("Amended R&R") recommending that the Court dismiss sixteen defendants without prejudice for failure to effect proper service. Favors objected to the R&R on the basis that he has no way to obtain the unserved defendants' home addresses. Because fifteen defendants remain unserved and have not made an appearance in this matter, and because Favors fails to show good cause as to why these fifteen defendants should not be dismissed, the Court will adopt the Amended R&R as to these fifteen defendants and dismiss Favors claims against them without prejudice.

BACKGROUND

On February 21, 2013, Favors filed a complaint with this Court alleging several civil rights violations against 56 individuals and state agencies. (Compl., Feb. 21, 2013, Docket No. 1.) On April 2, 2013, the Court granted Favors' application to proceed in forma pauperis and ordered the United States Marshal's Service to serve a copy of the summons and complaint on the defendants as directed by Favors. (Order on Appl. to Proceed Without Prepayment of Fees, Apr. 2, 2013, Docket No. 3.) The service returns indicate that the Marshal's Service was unable to serve 20 of the defendants, in large part, because Favors directed the Marshal's Service to serve these defendants at places of employment where the defendants no longer worked. The following defendants were not served[1]: Leslie Barfknetch, Kevin Browne, Dennis Benson, Linda Berglin, Christopher Boreland, Jenny Chestbrough, Marnie Dollinger, Joann Fabian, Tim Gorr, John Hoffman, Michelle Hoover, Jamie Jungers, Deb Konieska, Rod Ligget, [2] Cal Ludeman, Mark Mehl, Eric Melby, David Prescott, Natalie Steinert, and Phil Wilder. (Summons Returned Unexecuted, July 8, 2013, Docket No. 56; Summons Returned Unexecuted, July 15, 2013, Docket No. 62; Summons Returned Unexecuted, July15, 2013, Docket No. 63.)

In addition to directing the Marshal's Service to complete service, Favors made two motions for partial service by publication, which the Magistrate Judge denied. (Order, July 8, 2013, Docket No. 55; Order, Aug. 16, 2013, Docket No. 66.) The Magistrate Judge gave Favors 45 days from the date of the August 16, 2013 Order to perfect service on the unserved defendants before the Magistrate Judge would recommend that the unserved defendants be dismissed without prejudice. (Order, Aug. 16, 2013, Docket No. 66.)

On September 9, 2013, Favors filed a discovery request and motion for court ordered discovery asking the Court to order several defendants to provide Favors the residential addresses of 24 individual defendants who are current or former employees of the Minnesota Department of Corrections and Department of Human Services. (Disc. Req., Sept. 9, 2013, Docket No. 72; Mot. for Ct. Ordered Disc. Information, Sept. 9, 2013, Docket No. 74.) The Magistrate Judge denied the motion without prejudice on the grounds that Favors did not explain what efforts he undertook to obtain the addresses on his own or why the defendants that Favors demanded the addresses from should be required to produce the requested addresses. (Order, Sept. 17, 2013, Docket No. 81.)

On October 9, 2013, the Magistrate Judge issued a Report and Recommendation ("R&R") recommending that the 20 remaining unserved defendants be dismissed. (R&R, October 9, 2013, Docket No. 83.) Subsequently, the Marshal's Service completed service on four additional defendants for which Favors provided new addresses: Dennis Benson, Christopher Boreland, Michelle Hoover, and Mark Mehl. (Resp. to Ct. Order, Aug. 26, 2013, Docket No. 67; Resp. to Ct. Order, Sept. 9, 2013, Docket No. 73; Summons Returned Executed, Oct. 22, 2013, Docket No. 96; Acknowledgment of Service, Oct. 22, 2013, Docket No. 97.) The Magistrate Judge then issued an Amended R&R to recommend that the Court dismiss only the sixteen remaining unserved defendants. (Amended R&R, Oct. 25, 2013, Docket No. 100.) The Amended R&R does not take into account that on October 18, 2013, Joann Fabian, one of the sixteen remaining unserved defendants filed an answer to Favors' complaint. (Answer of Fabian, Peterson, Schadegg, King, and Minnesota Office of Health Facility Complaints, Oct. 18, 2013, Docket No. 87.)

Favors objects to the original R&R and the Amended R&R on the grounds that his motion to compel discovery was improperly denied, therefore he was unable to obtain residential addresses to serve the remaining unserved defendants. (Objection to R&R, Oct. 17, 2013, Docket No. 86; Amended Objection to R&R, October 18, 2013, Docket No. 95; Mem. Supp. ...


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