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Rickmyer v. Browne

United States District Court, D. Minnesota

January 7, 2014



LEO I. BRISBOIS, Magistrate Judge.

This matter came before the undersigned United States Magistrate Judge upon Defendant Hoff's Motion to Dismiss, [Docket No. 19]; Defendant Schooler's Motion to Dismiss, [Docket No. 53]; the Motion to Dismiss made by the JACC Defendants, [1] [Docket No. 64]; Defendant Schooler's Motion for Rule 11 Sanctions, [Docket No. 122]; and Plaintiff's Motion to Amend Complaint, [Docket No. 171].[2] The case has been referred to the undersigned Magistrate Judge for a report and recommendation, (see Order of Reference [Docket No. 154]), pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. For reasons outlined below, the Court recommends that Defendant Hoff's and Defendant Schooler's Motions to Dismiss, [Docket Nos. 19 and 53], be GRANTED in part and DENIED in part; that the JACC Defendants' Motion to Dismiss, [Docket No. 64], be GRANTED; that Plaintiff's Motion to Amend Complaint, [Docket No. 171], be DENIED; and that Defendant Schooler's Motion for Rule 11 Sanctions, [Docket No. 122], be DENIED.


On March 11, 2013, Peter Rickmyer[3] ("Plaintiff") initiated this lawsuit against the following: John Willard Hoff ("Defendant Hoff"); David Schooler ("Defendant Schooler"); Plaintiff's parole officer, William McDonald ("Defendant McDonald"); and the Jordan Area Community Council, Inc. ("Defendant JACC") and several persons related to the JACC, including Michael (Kip) Browne ("Defendant M.Browne"), Megan Goodmundson ("Defendant Goodmundson"), [4] Dan Rother ("Defendant Rother"), Robert Hodson ("Defendant Hodson"), John George Hubbard II ("Defendant Hubbard"), Dave Haddy ("Defendant Haddy), and Ann McCandless ("Defendant McCandless") (collectively, the "JACC Defendants"). (See Compl. [Docket No. 1], at 1-3).

Pursuant to Fed.R.Civ.P. 15(a)(1)(A), Plaintiff amended his Complaint on March 15, 2013. (See Am. Compl. [Docket No. 5]). Subsequently, on May 26, 2013, Plaintiff filed his Second Amended Complaint, [Docket No. 7], [5] which is the operative complaint at this time, and which asserts the following claims:

• Plaintiff alleges that Defendant Hoff, Defendant McDonald, and the JACC Defendants conspired and retaliated against him, infringing his rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the U.S.
Constitution, in violation of the civil rights statutes codified at 42 U.S.C. §§ 1983, 1985, 1986, and in violation of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12203. (2d Am. Compl. [Docket No. 7], at 22-23);
• Plaintiff brings an "intentional interference with contract" claim against Defendant Hoff, Defendant McDonald, and the JACC Defendants, alleging that they interfered with his "contract" with the Minnesota Department of Corrections. (Id. at 24);
• Plaintiff brings a "breach of settlement agreement contract" claim against Defendant Schooler, alleging that Defendant Schooler violated the terms of a settlement agreement entered in a previous lawsuit, (Id.); and
• Plaintiff asks the Court to enter default judgment against Defendant Hoff in a Minnesota state-court case, No. 27-cv-10-3378. (Id. at 24-25).

Defendant McDonald filed and served his Answer, [Docket No. 11], on May 30, 2013.[6] Defendant Hoff made his Motion to Dismiss, [Docket No. 19], on June 7, 2013; Defendant Schooler made his Motion to Dismiss, [Docket No. 53], on June 26, 2013; and the JACC Defendants made their Motion to Dismiss, [Docket No. 64], on July 1, 2013. (In the interest of efficiency, for purposes of this Report and Recommendation, the Court refers to those defendants who have made motions to dismiss-i.e., Defendant Hoff, Defendant Schooler, and the JACC Defendants-collectively as "Defendants.") Subsequently, on July 17, 2013, Plaintiff made his Motion for Default Judgment. [Docket No. 84]. The presiding Judge for this case, the Hon. Susan Richard Nelson ("Judge Nelson"), referred each of these Motions to the Hon. Steven E. Rau, U.S. Magistrate Judge ("Magistrate Judge Rau"), for a report and recommendation in accordance with 28 U.S.C. § 636(b)(1)(A)-(C). (See Order [Docket No. 24]; Order [Docket No. 62]; Order [Docket No. 71]; and Order [Docket No. 143]). Additionally, Defendant Schooler made his Motion for Rule 11 Sanctions, [Docket No. 122], on August 14, 2013. Finally, Plaintiff made his current Motion for Leave of Court to Amend Complaint, [Docket No. 171], on December 12, 2013.[7]

On September 3, 2013, Magistrate Judge Rau held a hearing on the Motions, [8] at which time he also disclosed that he had once, many years ago, represented Defendant Schooler. (Hr'g Tr. [Docket No. 187], at 12-13). In light of that fact, Plaintiff asked that Magistrate Judge Rau recuse himself. (Id. at 29, 40-41). Subsequently, on September 13, 2013, Magistrate Judge Rau recused, (Order of Recusal [Docket No. 152]), and the case was reassigned to Magistrate Judge Jeffrey J. Keyes, who also recused, (Order of Recusal, [Docket No. 153]), resulting in the case being assigned to the undersigned. On September 27, 2013, Judge Nelson issued an Order, [Docket No. 154], referring to the undersigned the dispositive motions that are the subject of this Report and Recommendation.


Plaintiff has multiple convictions in Minnesota and Oklahoma state courts for sexual contact with young boys. See In re Rickmyer, 519 N.W.2d 188, 189 (Minn. 1994). In the present case, Plaintiff's criminal history is relevant because at least some of his claims arise from his belief that certain of the Defendants conspired to have his parole revoked. Additionally, for purposes of the pending Motions, the Court notes the following:

A. Prior Litigation among the Parties

Both Plaintiff and Defendants acknowledge that the facts of the present case are inextricably tied to prior cases, some litigated in Minnesota state courts, and some brought in the U.S. District Court for the District of Minnesota. By piecing together various exhibits submitted by the parties in this case and in other cases filed in this District, the Court has assembled the following case history:

• Rickmyer v. Hubbard, No. 27-CV-09-10939 (Hennepin Cty., Minn.).[9] Plaintiff's petition for a harassment restraining order against Defendant Hubbard was dismissed with prejudice.
• Rickmyer v. Hoff, No. 27-CV-09-30329 (Hennepin Cty., Minn.).[10] Plaintiff's petition for a harassment restraining order against Defendant Hoff was denied initially when requested in 2009, and again in 2012 after Plaintiff sought to vacate the prior order. (Decl. Godfread Ex. B [Docket No. 22-2]). Additionally, in 2012, after the case had been closed, Plaintiff nonetheless sought to file an amended petition, which the presiding judge[11] described as "an effort to circumvent" a 2010 order in a different case that limited Plaintiff's access to Hennepin County courts. See In re Rickmyer, 2012 Minn. Dist. LEXIS 189 (Hennepin Cty., Minn. June 19, 2012). Plaintiff's request to submit an amended petition was denied and the Clerk of Court was ordered not to accept any documents submitted by Plaintiff "unless the Chief Judge has specifically approved the filing by written order." Id.
• Rickmyer v. Hodson, No. 27-CV-10-3378 (Hennepin Cty., Minn.).[12] Plaintiff brought claims alleging defamation, intentional interference with contracts, discrimination, harassment, "loss of liberty, " "loss of free speech, " trespassing, and "aiding and abetting." Defendants included Defendant Hoff, Defendant Schooler, and many of the JACC Defendants, among others. (See Pl.'s Exs. [Docket No. 7-2], at 13-24). The state court[13] held that it lacked jurisdiction over Defendant Hoff, who had not been properly served. Rickmyer v. Hodson, 2010 Minn. Dist. LEXIS 30, at *11-12 (Hennepin Cty., Minn. May 17, 2010). Additionally, the state court dismissed Plaintiff's claims against the JACC Defendants, and granted their motion for sanctions, ordering that "Plaintiff may not file any new cases unless an attorney licensed to practice law in Minnesota has signed the complaint and the Chief Judge or the Presiding Judge of Civil has approved." (Id. at *2).[14] Plaintiff's claims against Defendant Schooler were dismissed pursuant to a confidential settlement agreement. ([Docket No. 150] the "Settlement Agreement") (filed under seal)). Plaintiff's appeal of Judge Blaeser's Order was denied on procedural grounds. Rickmyer v. Hodson, No. A13-903, slip op. (Minn.Ct.App. July 10, 2013).
• Rickmyer v. Roy, No. 27-CV-11-11012 (Hennepin Cty., Minn.).[15] By this action, Plaintiff petitioned for a writ of habeas corpus, and also sought declaratory and injunctive relief and money damages against Defendant McDonald, Defendant Hoff, Defendant M.Browne, and Defendant Goodmundson, among others. (See Rickmyer v. Roy Complaint, in Wells Fargo v. Clark, No. 12-cv-2621 (ADM/JJK) (D. Minn.), Notice of Removal Ex. 2 [Docket No. 1-2], at 12-58).
º The state court[16] denied Plaintiff's request for habeas corpus without prejudice on May 20, 2011. (See Rickmyer v. Roy Order, slip op., May 20, 2011, in Decl. Renz Ex. B [Docket No. 67-2]).
º On or about January 8, 2012, Plaintiff made his first attempt to extract this case from the Fourth Judicial District, when he made a motion to remove the entire Fourth Judicial District bench, which that court denied. (See Rickmyer v. Roy Mem., in Wells Fargo v. Clark, Notice of Removal Ex. 2 [Docket No. 1-2], at 81-87).[17]
º Subsequently, the state court[18] dismissed with prejudice Plaintiff's claims against Defendant M.Browne and, upon finding that Plaintiff's claims were barred by Minnesota's anti-SLAPP[19] statute, Minn. Stat. § 554.03, ordered Plaintiff to pay Defendant M.Browne's attorney fees related to his motion to dismiss. (See Rickmyer v. Roy Order and Mem., slip op., Apr. 5, 2012, in Wells Fargo v. Clark, Notice of Removal Ex. 2 [Docket No. 1-2], at 89-105). On December 14, 2012, judgment was entered in favor of Defendant M.Browne in the amount of $20, 000.00. (Decl. Schooler Ex. 5 [Docket No. 57-5] (Rickmyer v. Roy Notice of Entry of J. (Dec. 14, 2012)).
º Plaintiff removed the case to Federal court on October 12, 2012; however, the case was subsequently remanded. See Wells Fargo v. Clark, infra.
º On January 18, 2013, the state court[20] dismissed this case with prejudice, but noted that "for purposes of any federal court action, this dismissal does not operate as an adjudication on the merits." (Decl. Godfread Ex. D [Docket No. 22-4]). Plaintiff's appeal was denied on procedural grounds. Rickmyer v. Roy, No. A13-1207, slip op. (Minn.Ct.App. Aug. 27, 2013).
• Stephenson v. Roy, No. 02-CV-11-3668 (Anoka Cty., Minn.).[21] This is a second petition for a writ of habeas corpus, brought after the habeas corpus petition in Rickmyer v. Roy, supra, was denied. The state court ultimately denied this second petition for habeas corpus, as well. (See Stephenson v. Roy Order Denying Pet. Writ of Habeas Corpus and Mem., slip op., Aug. 8, 2011, in Wells Fargo v. Clark, Notice of Removal Ex. 2 [Docket No. 1-2], at 65-79).
• Wells Fargo v. Clark, No. 12-cv-2621 (ADM/JJK) (D. Minn.). In this action, Plaintiff and others sought to remove five state-court cases to the Federal court, including both Rickmyer v. Hodson and Rickmyer v. Roy. (See Wells Fargo v. Clark Order [No. 12-cv-2621, Docket No. 30]). All five cases were remanded to Minnesota state court as improperly removed. (Id.). Approximately two months after the case was remanded, Plaintiff nonetheless filed in Federal court a "Notice to Court and Cease and Desist Notice" directed to Defendant JACC. (Wells Fargo v. Clark Notice to Court and Cease and Desist Notice [No. 12-cv-2621, Docket No. 35]).
• Rickmyer v. Browne, No. 13-cv-141 (PAM/FLN) (D. Minn.) (hereinafter, "Rickmyer I"). In Rickmyer I, Plaintiff alleged substantially the same claims that he makes in the present, although his Complaint is much shorter and the only named defendants are Defendant M.Browne, Defendant Goodmundson, Defendant Hoff, and Defendant McDonald. (See Rickmyer I Compl. [No. 13cv-141, Docket No. 1]). That case was terminated on January 17, 2013, the day after Plaintiff filed his Complaint, pursuant to Plaintiff's Notice of Voluntary Dismissal. (Rickmyer I [No. 13-cv-141, Docket No. 3].
• Rickmyer v. Jordan Area Community Council, Inc., No. 13-cv-2900 (JNE/JGG). Plaintiff sued the JACC alleging violations of the ADA, and seeking injunctive relief. (Rickmyer v. JACC, Compl. [No. 13-cv-2900, Docket No. 1]). The Hon. Jeanne J. Graham, U.S. Magistrate Judge, issued a Report and Recommendation recommending that Plaintiff's motion for a temporary restraining order be denied and that the case be dismissed for lack of jurisdiction. (Rickmyer v. JACC, Report & Recommendation [No. 13-cv-2900, Docket No. 11]). Subsequently, Plaintiff dismissed his complaint, and the case was dismissed. (Rickmyer v. JACC, Notice of Voluntary Dismissal [No. 13-cv-2900, Docket No. 12]; Order [No. 13-cv-2900, Docket No. 13])

B. Allegations in Plaintiff's Second Amended Complaint[22]

1. Allegations concerning Defendant Hoff, Defendant McDonald, and the JACC Defendants

Plaintiff lives in Hennepin County, Minnesota, and is an eligible member of the Jordan Area Community Council ("JACC"). (2d Am. Compl. [Docket No. 7], at 2, ¶ 1). He attended JACC Board and Finance Committee meetings between February 2009 and April 2009, where he was outspoken about certain issues, including his belief that JACC meetings should be held in a different location. (Id. at 5, ¶¶ 25-26; at 18; 120). Plaintiff generally alleges that the JACC Defendants at this time "became interested in running me out of my neighborhood and ultimately depriving me of my liberty, " and began a campaign of retaliation against him. (Id. at 4, ¶ 19; at 5-6, ¶ 27; at 21-22, ¶ 151). Plaintiff asserts that Defendant JACC "authorized [Defendant] Hubbard and [Defendant] Haddy to come to my house in May of 2009 knowing they were not welcomed and making false allegations." (Id. at 4, ¶ 17). Subsequently, on July 22, 2009, Plaintiff alleges that Defendant M.Browne's wife contacted Plaintiff's parole officer to obtain a copy of Plaintiff's conditions of release. (Id. at 4-5, ¶ 20). The following day, July 23, 2009, Plaintiff was arrested for parole violations. (Id. at 5, ¶ 21).

Additionally, Plaintiff alleges that on or about November 15, 2009, Defendant Hoff joined in the conspiracy and retaliation by blogging about Plaintiff and communicating with Plaintiff's parole agent, Bobbie C. Jones ("Parole Agent Jones"). (Id. at 6-7, ¶¶ 28-34; at 20, ¶ 141). Plaintiff filed the Rickmyer v. Hodson State court lawsuit in February 2010, which prompted Defendant Hoff and Defendant Goodmundson to write additional blog posts and make further communications with Parole Agent Jones. (Id. at 7, ¶¶ 35-39; at 9, ¶¶ 43-44). Plaintiff asserts that when Parole Agent Jones refused to retaliate against him, Defendants Hoff and M.Browne conspired to "bully agent Jones off my case." Id. at 9, ¶¶ 40-42).

Plaintiff generally alleges that the JACC Defendants, in a conspiracy with Defendant McDonald, committed fraud in Rickmyer v. Hodson. (Id. at 3, ¶ 11; at 5, ¶¶ 22-24). Although Plaintiff does not specify the nature of this "fraud, " he states that Defendant M.Browne somehow "prohibited me from amending [a pleading in Rickmyer v. Hodson] to ensure I would lose [the] summary judgment motion on April 20, 2010, which resulted in [the] May 17, 2010 order." (Id. at 10, ¶ 48; at 20, ¶ 138). Plaintiff also alleges that, while he was working on an appeal of the Order that declared him to be a frivolous litigant, Defendant Hoff "on behalf of the JACC group harassed and stalked" Plaintiff at the public law library and used an unnamed person "to gather drafts from tables and wastebaskets... allowing Hoff to glean that I was working on an appeal." Id. at 12, ¶¶ 67-68). Plaintiff states that he "was forced to abandon [his] appeal because there was no way/place I could work on it." (Id. at 13, ¶ 70).

Plaintiff subsequently filed a complaint against the JACC with the Minnesota Department of Civil Rights in June 2010, [23] which he alleges set off a new round of blog posts, conspiratorial communications and retaliation between various JACC Defendants, Defendant Hoff, and Defendant McDonald, which continued up until he filed his Second Amended Complaint on May 6, 2013. (Id. at 13-18, ¶¶ 71-104 and ¶¶ 108-11; at 19, ¶ 130). Plaintiff also alleges that Defendant McDonald had an ex parte communication on March 3, 2011, with the judge in Rickmyer v. Hodson. (Id. at 3-4, ¶ 13; at 17, ¶¶ 105-107). Plaintiff was arrested on March 9, 2011, and maintains that he has been "in custody (incarcerated, house arrest and or curfew)" since that date. (Id. at 18, ¶ 114 (parenthetical in original)).

Plaintiff further generally alleges that the Defendants subsequently failed to inform the State court in Rickmyer v. Roy that they had committed fraud in Rickmyer v. Hodson. (Id. at 3, ¶¶ 12).

2. Allegations concerning Defendant Schooler

As previously mentioned, Plaintiff's claims against Defendant Schooler in Rickmyer v. Hodson were dismissed pursuant to a confidential settlement agreement, which was submitted to this Court under seal. ([Docket No. 150]; see also 2d Am. Compl. [Docket No. 7], at 19, ¶ 125 (acknowledging confidential settlement agreement)). Plaintiff alleges that, during a state court hearing on May 16, 2012, Defendant Schooler violated that confidential settlement agreement by describing Plaintiff as Defendant Schooler's "personal stalker" and seeking to have Plaintiff removed from the courtroom, acts that Plaintiff says "publicly vilified and humiliated" him. (2d Am. Compl. [Docket No. 7], at 19, ¶¶ 125-26, 128).

3. Plaintiff's Requested Relief

Plaintiff makes a variety of claims for equitable and monetary relief. First, Plaintiff asks that the Court "take jurisdiction over" Rickmyer v. Hodson "as supplemental jurisdiction." (2d Am. Compl. [Docket No. 7], at 19, ¶ 131).[24] Plaintiff then asks that this Court enter default judgment against Defendant Hoff in Rickmyer v. Hodson, (2d Am. Compl. [Docket No. 7], at 19-20, ¶ 132-37), and to vacate the Order in that case that dismissed Plaintiff's claims against the JACC Defendants and imposed "frivolous litigant" limitations on Defendant, alleging that that Order "was based on a fraud upon the Court by [Defendant] M.Browne not allowing me to state a claim by prohibiting me from amending" his pleading. (Id. at 20, ¶ 138).

Plaintiff also seeks the following money damages from Defendant Hoff, Defendant McDonald, and the JACC Defendants: (1) damages in the amount of $75, 000 or more, jointly and severally, for alleged civil rights and ADA violations, (Id. at 23; 158); and (2) damages in excess of $75, 000 for intentional interference with Plaintiff's "contract" with the Minnesota Department of Corrections, (Id. at 24, ¶ 161). Additionally, Defendant seeks damages from Defendant Schooler in excess of $75, 000 for the alleged breach of their confidential settlement agreement. (Id. at 24, ¶ 164). Finally, Defendant seeks damages from Defendant Hoff in excess of $75, 000 in relation to his request that this Court enter default judgment against Hoff in Rickmyer v. Hodson. (Id. at 25, ¶ 169).


Plaintiff's Complaint names Defendant Hoff in Counts I and II, and Defendant Hoff in Count IV. Defendant Hoff, by his Motion, asks the Court to dismiss these counts pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. (See Docket No. 19).

A. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." In addressing a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim, "we look only to the facts alleged in the complaint and construe those facts in the light most favorable to the plaintiff." Riley v. St. Louis County of Mo., 153 F.3d 627, 629 (8th Cir. 1998) (citing Double D Spotting Serv., Inc. v. Supervalu, Inc., 136 F.3d 554, 556 (8th Cir. 1998)), cert. denied 525 U.S. 1178 (1999). All reasonable inferences must be drawn in favor of the nonmoving party. See Maki v. Allete, Inc., 383 F.3d 740, 742 (8th Cir. 2004).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulistic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and citations omitted). "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;" however, "[w]here a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.''" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Twombly, 550 U.S. at 556-67. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 664.

B. Discussion

Plaintiff alleges three counts against Defendant Hoff: (a) In Count I, Plaintiff alleges that Defendant Hoff violated his rights pursuant to 42 U.S.C. §§ 1983, 1985, 1986, and 12203; (b) in Count II, Plaintiff alleges intentional interference with contract; and (c) in Count IV, Plaintiff asks this Court to enter default judgment against Defendant Hoff in the state-court action Rickmyer v. Hodson, 27-CV-10-3378.

Defendant Hoff argues that Plaintiff's claims against him should be dismissed for any of three reasons: (1) Plaintiff's claims have been disposed of with an adjudication on the merits pursuant to Fed.R.Civ.P. 41; (2) Plaintiff has failed to state a claim as required under the Iqbal/Twombly standard; and (3) Plaintiff's claims are barred by Minnesota's Anti-SLAPP statute. (See Docket No. 19). Defendant Hoff not only seeks dismissal of the claims against him, but also, pursuant to the Anti-SLAPP statute, seeks an award of attorney's fees and costs. (Id.).

1. Plaintiff's claims against Defendant Hoff are not barred by the "two-dismissal rule."

Rule 41 provides that a Plaintiff may voluntarily dismiss his action by filing a notice of voluntary dismissal, which ordinarily will serve as a dismissal without prejudice. Fed.R.Civ.P. 41(a)(1). However, "if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits." Fed.R.Civ.P. 41(a)(1)(B). This is the so-called "two-dismissal rule." See Engelhardt v. Bell & Howell Co., 299 F.2d 480, 482 (8th Cir. 1962).

Defendant Hoff argues that the two-dismissal rule applies in the present case, because (1) "the dismissal due to plaintiff's failure to prosecute the [Rickmyer v. Roy] matter once remanded to state court would also act as an adjudication on the merits pursuant to Fed.R.Civ.P. 41(b), " and (2) Plaintiff's voluntary dismissal of Rickmyer v. Browne, 13-cv-141 (PAM/FLN), would constitute a second dismissal. (Def. Hoff's Mem. Supp. Mot. Dismiss [Docket No. 21] (hereinafter, "Def. Hoff's Mem."), at 10).

The Court is not persuaded. The two-dismissal rule applies when a plaintiff brings the same claims in multiple actions, and attempts to voluntarily dismiss those claims more than once. See Fed.R.Civ.P. 41(a)(1)(B) (two-dismissal rule applies "if the plaintiff previously dismissed"); see also Engelhardt, 299 F.2d at 482 (two-dismissal rule "protects a defendant by providing that if the plaintiff takes advantage of his right of early dismissal on one occasion, he may not repeat the process with impunity " (emphasis added)).

In the present case, there is no question that Plaintiff's voluntary dismissal of Rickmyer v. Browne clearly counts against the two-dismissal rule. However, the dismissal of Plaintiff's claims in Rickmyer v. Roy was an involuntary dismissal, [25] and by its express terms "does not operate as an adjudication on the merits." (Rickmyer v. Roy Order for Dismissal, slip op., Jan. 18, 2013, in Decl. Godfread Ex. D [Docket No. 22-4], at 3). Defendant Hoff offers no legal authority, and the Court found none, for the proposition that an involuntary dismissal under Federal Rule 41(b), or a state-law equivalent thereof, should count as a prior voluntary dismissal for purposes of Federal Rule 41(a)(1)(B).

Therefore, the Court does not recommend dismissal pursuant to the two-dismissal rule contained in Fed.R.Civ.P. 41(a).

2. Plaintiff has failed to state a claim for which relief can be granted against Defendant Hoff.

a. Plaintiff's Count I against Defendant Hoff should be dismissed.

i. Plaintiff's claims under 42 U.S.C. § 1985 and § 1986

Plaintiff's claims against Defendant Hoff under 42 U.S.C. § 1985[26] and § 1986[27] fail as a matter of law under Fed.R.Civ.P. 12(b)(6), because Plaintiff has plead no facts whatsoever to support such claims. Consequently, the Court recommends that Plaintiff's § 1985 and § 1986 claims against Defendant Hoff be DISMISSED.

ii. Plaintiff's claims under 42 U.S.C. § 1983

Plaintiff generally alleges that Defendant Hoff, both individually and as part of a conspiracy involving Defendant McDonald and the JACC Defendants, took actions that resulted in Plaintiff's arrest and Plaintiff's current state of "custody" pursuant to that arrest, thereby violating Plaintiff's rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983.

(a) Plaintiff's § 1983 claims fail as a matter of law.

These claims under 42 U.S.C. § 1983 fail as a matter of law because, even assuming the allegations in his Complaint to be true, Plaintiff has alleged no facts that would tend to show that Defendant Hoff is a state actor or was otherwise acting under color of state law when he took the actions he is alleged to have taken in the Complaint. As this Court has previously explained:

Section 42 U.S.C. § 1983 does not in and of itself create or establish any federally protected right. Rather, it creates a cause of action for Plaintiff to enforce federal rights created elsewhere such as those found in the United States Constitution. Albright v. Oliver, 510 U.S. 266, 271 (1994). In other words, 42 U.S.C.§ 1983 fulfills the procedural or remedial function of authorizing a plaintiff to assert a claim for relief against a defendant who, acting under color of state law, violated the plaintiff's federal rights. " Only state actors can be held liable under § 1983. " Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th Cir. 2001).

Milliman v. Stearns, No. 11-cv-3636 (JRT/LIB), 2012 U.S. Dist. LEXIS 140458, at *16 (D. Minn. May 30, 2012) (Brisbois, M.J.) (hereinafter, "Milliman I") (emphasis added), adopted by 2012 U.S. Dist. LEXIS 139475 (D. Minn. Sept. 27, 2012) (Tunheim, J.).

To successfully assert a § 1983 claim, a plaintiff must at the outset plead facts demonstrating that the individual or individuals committing the offending action were acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). The same standard applies for allegations that a private individual acted under color of state law. See Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983) ("When a plaintiff in a § 1983 action attempts to assert the necessary state action' by implicating state officials or judges in a conspiracy with private defendants, mere conclusory allegations with no supporting factual averments are insufficient; the pleadings must specifically present facts tending to show agreement and concerted action."); Simmons v. Sacramento Cnty. Sup.Ct., 318 F.3d 1156, 1161 (9th Cir. 2003). Plaintiff here, however, has pled no facts to support a claim of action by Defendant Hoff under color of state law.

Plaintiff generally argued at the September 3, 2013, motions hearing that a private party acting in concert with a state official constitutes state action and renders the private party a state actor, and cited Hafer v. Melo, 502 U.S. 21 (1991), in support of that proposition. (Hr'g Tr. [Docket No. 187], at 15). However, Hafer did not address the question of whether a private party's actions constitute state action, but rather, concerned whether "state officials sued in their individual capacities are persons' for purposes of § 1983." Id. at 23, 31 (answering in the affirmative).

Plaintiff's § 1983 claim against Defendant Hoff fails in this case because there are no facts alleged to show Defendant Hoff acted under color of state law.

Additionally, even if Plaintiff could somehow demonstrate that Defendant Hoff was acting under color of state law, the Court finds that the doctrine set forth by the U.S. Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994), bars him from recovering. In Heck, the U.S. Supreme Court held that:

[I]n order to recover damages for... harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.

512 U.S. at 486-87. Plaintiff does not specify the exact nature of the harms that he allegedly suffered, but it appears that the harm Plaintiff alleges is that his parole was revoked. (See Hr'g Tr. [Docket No. 187], at 21 ("They worked with Will McDonald to violate my parole, have me put in jail."). However, Plaintiff has presented no evidence that whatever sentencing consequence he suffered was revoked, expunged or otherwise called into question as required by Heck. Moreover, the Minnesota state courts denied his habeas corpus petitions in ...

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