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Bandy v. Commissioner of Correction

United States District Court, Eighth Circuit

January 2, 2014

JOE H. BANDY, III, Plaintiff,
v.
COMMISSIONER OF CORRECTION, MCDONALD WILL, JEFF PETERSON, CRAIG OSELAND, GALLO RICK, BETH VERDIN, THANE MURPHY, and CORRY VARGASON, in their individual and official capacities, Defendants.

Joe H. Bandy, III, 1111 Highway 73, Moose Lake, MN 55767, pro se.

MEMORANDUM OPINION AND ORDER REJECTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AND GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS

JOHN R. TUNHEIM, District Judge.

Plaintiff Joe Bandy brings this action under 42 U.S.C. § 1983 against several state officials he claims were involved in a decision to revoke his supervised release after he served a state criminal sentence. He applied for permission to proceed in forma pauperis ("IFP") and United States Magistrate Judge Leo I. Brisbois recommended denying Bandy's application and dismissing his claims for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). In the Report and Recommendation ("R&R"), the Magistrate Judge determined that Bandy's claims under § 1983 are barred by the favorable termination rule espoused in Heck v. Humphrey, 512 U.S. 477 (1994), because success on Bandy's claims would necessarily imply that he was wrongly imprisoned following the revocation of his supervised release. Bandy objects to the R&R and the Court will sustain his objections, because it finds that Bandy adequately alleges that his revocation was favorably terminated and that some of his claims would not necessarily imply that his revocation was invalid. Therefore, the Court will reject the R&R and grant Bandy's IFP application.

BACKGROUND

Bandy was convicted in state court of third-degree criminal sexual conduct and deprivation of parental rights and was sentenced to a term of imprisonment. See In re Commitment of Bandy, No. A11-901, 2011 WL 5026399, at *1 (Minn.Ct.App. Oct. 24, 2011). Following his imprisonment he was civilly committed to the Minnesota Sex Offender Program ("MSOP") in Moose Lake, Minnesota. See id. at *3. The facts leading up to the incidents underlying Bandy's complaint are not entirely clear, but it appears that, while Bandy was committed at Moose Lake and still on supervised release from his prison term, he was involved in an altercation with another resident at Moose Lake.[1] Due to this altercation, Bandy's supervised release was revoked and he was sent back to prison for 210 days. He has since apparently returned to Moose Lake.

Bandy's § 1983 claims involve the circumstances surrounding his revocation. He claims that various Moose Lake and state probation and hearing officers violated his civil rights by misrepresenting the facts of his altercation at his revocation hearing, entering incorrect information into the record of his revocation hearing, denying him access to appeal the revocation decision, and providing ineffective assistance in the revocation process. ( See Compl. ¶¶ 2, 8-10, Aug. 5, 2013, Docket No. 1.) Specifically, he seeks declaratory judgment and monetary relief for claims of malicious prosecution (Count I), ( id. ¶¶ 46-47), discrimination (Count II), ( id. ¶¶ 48-53), false arrest and imprisonment (Count III), ( id. ¶¶ 54-56), obstruction of justice and access to the courts (Count IV), ( id. ¶¶ 57-61), and misrepresentation (Count V), ( id. ¶¶ 62-66), which he frames as violations of the First, Eighth, and Fourteenth Amendments. Although Bandy does not bring each of these claims against all defendants, in substance his allegations against each defendant are the same.

He alleges that defendants Vargason, Murphy, and Verdin, all officials at Moose Lake, misrepresented the facts surrounding the altercation, including at his revocation hearing. For example, he alleges that Vargason stated that the other resident was "defending himself, " which led to the "incorrect misrepresentation" of the other resident's actions. ( Id. ¶ 4; see also id. ¶¶ 5-6, 28-30, 39-41, 49-50.) Bandy alleges that defendant Peterson, the Executive Officer of Hearings and Release with the Minnesota Department of Corrections, obstructed his access to the courts by misconstruing the deadline for administrative appeal from the hearing determination and by threatening Bandy that if he continued any further correspondence on the matter he would be disciplined. ( Id. at ¶¶ 43-44.) He alleges that defendant Oseland, a hearing officer for the Hearing and Release Unit, entered a false and incorrect account of the information presented at the hearing into the disposition and record of the hearing. ( Id. ¶ 38.) Finally, he alleges that defendant Rick provided ineffective assistance in the revocation process and that defendants Jesson, McDonald, and the Commissioner of Corrections failed to adequately supervise the revocation hearing process, thus enabling these alleged rights violations to occur. ( Id. ¶¶ 31, 33, 35-36.)

As remedy for these alleged injuries, Bandy seeks a declaration that his rights were violated, compensatory and punitive damages, and to be "protected from all other State Correctional Facilit[ies] by way of monitoring from the designated intervening officer of the court." ( Id. at 12-13.)

The Magistrate Judge recommended dismissing all of Bandy's claims for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and Bandy objects.

DISCUSSION

I. STANDARD OF REVIEW

Upon the filing of a report and recommendation by a magistrate judge, a party may "serve and file specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b)(2); accord D. Minn. LR 72.2(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3).

II. DISMISSAL FOR FAILURE TO STATE A CLAIM

A. Favorable Termination Rule ...


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