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Bandy v. Commissioner of Correction

United States District Court, D. Minnesota

April 24, 2014

JOE H. BANDY, III, Plaintiff,
v.
COMMISSIONER OF CORRECTION, McDONALD WILL, JEFF PETERSON, CRAIG OSELAND, GALLO RICK, BETH VIRDIN, THANE MURPHY, and CORRY VARGASON, Defendants.

REPORT AND RECOMMENDATION

LEO I. BRISBOIS, Magistrate Judge.

This matter came before the undersigned United States Magistrate Judge upon Defendant McDonald's[1] Motion to Dismiss, [Docket No. 10]; upon Defendant Murphy's Motion to Dismiss, [Docket No. 38]; and upon Plaintiff's Motion for Partial Voluntary Dismissal, [Docket No. 56]. The Motions have been referred to the undersigned Magistrate Judge for a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. For reasons set forth below, the Court recommends that Plaintiff's Motion for Partial Voluntary Dismissal, [Docket No. 56], be GRANTED; that Defendant McDonald's Motion to Dismiss, [Docket No. 10], be DENIED as moot; and that Defendant Murphy's Motion to Dismiss, [Docket No. 28], be DENIED as moot.

I. BACKGROUND

Plaintiff is a civilly committed detainee at the Minnesota Sex Offender Program, ("MSOP"), in Moose Lake, Minnesota. He was civilly committed after serving a prison sentence for criminal sexual conduct. See In re Commitment of Bandy, No. A11-901 (Minn.App. 2011), 2011 WL 5026399 (unpublished opinion).

It appears that Plaintiff was still on supervised release status when he arrived at MSOP, and before his supervised release status expired, he apparently became involved in a physical altercation with another MSOP detainee. Because of that altercation, Plaintiff was accused of violating the terms and conditions of his supervised release from prison. A hearing on the matter was conducted by the Hearing and Release Unit of the Minnesota Department of Corrections, and Plaintiff was found guilty. As a result, Plaintiff's supervised release was revoked, and he was returned to prison for 210 days. As far as the Court can tell, Plaintiff has completed the 210-day prison term resulting from the revocation of his supervised release, and he is currently back at MSOP once again.

On August 5, 2013, Plaintiff initiated the present action by filing his Complaint, [2] [Docket No. 1], which names as defendants several individuals who allegedly were involved in the proceedings that caused his supervised release to be revoked. He claims that these individuals violated his federal constitutional rights during the course of the revocation proceedings. Some of the named Defendants allegedly gave false evidence to support the accusations against Plaintiff, and other Defendants allegedly were involved in the determination of Plaintiff's guilt, or the denial of his subsequent administrative appeals. The gist of Plaintiff's claims against all of the Defendants is that they violated his federal constitutional rights during the revocation proceedings, and thereby caused him to be wrongly returned to prison.

Plaintiff is seeking a judgment against Defendants under the federal civil rights statute, 42 U.S.C. § 1983. He is requesting a declaratory judgment, which would confirm that Defendants violated his constitutional rights during the course of the supervised release revocation proceedings. He is also requesting compensatory and punitive damages as redress for his allegedly wrongful return to prison.

To date, three Defendants have moved to dismiss: Defendant McDonald, [Docket No. 10]; Defendant Rick Gallo, [3] [Docket No. 15]; and Defendant Murphy, [Docket No. 38]. Additionally, Defendants Commissioner of Corrections Tom Roy ("Defendant Roy"), Craig Oseland ("Defendant Oseland"), and Jeffrey Peterson ("Defendant Peterson") have filed an Answer. [Docket No. 24]. Defendant Beth Verdin ("Defendant Verdin") has not been served. (See Summons Returned Unexecuted [Docket No. 9], at 2; see also Mem. Supp. Def. Murphy's Mot. Dismiss [Docket No. 40], at 1, n.2 ("At this time, Defendant Beth Verdin has yet to be served."). The remaining Defendant, Corry Vargason ("Defendant Vargason"), has not answered; he was served with the summons and complaint, however, the U.S. Marshals Service form as to Defendant Vargason is identifies him as a "(Witness) Not a Defendant." (Summons Returned Executed [Docket No. 9], at 1 (parenthetical in original)).[4]

II. PLAINTIFF'S MOTION FOR PARTIAL VOLUNTARY DISMISSAL [Docket No. 56]

On or about April 22, 2014, Plaintiff made his present Motion, [Docket No. 56], by which he seeks to dismiss Defendants Beth Verdin ("Defendant Verdin"), Thane Murphy ("Defendant Murphy"), Will McDonald, ("Defendant McDonald"), and Corry Vargason ("Defendant Vargason").[5]

Reading Plaintiff's Amended Complaint liberally, [6] the Court construes it as a Notice of Voluntary Dismissal, made pursuant to Fed.R.Civ.P. 41. Additionally, because Defendants Verdin, Murphy, McDonald, and Vargason have neither answered, nor moved for summary judgment, Plaintiff may voluntarily dismiss these Defendants without an order from the Court. Fed.R.Civ.P. 41(a)(1)(A)(i).

Consequently, the Court recommends that Plaintiff's Motion for Partial Voluntary Dismissal, [Docket No. 56], be GRANTED, and that Defendants Beth Verdin, Thane Murphy, Will McDonald, and Corry Vargason be DISMISSED without prejudice from this action.

III. DEFENDANT McDONALD'S MOTION TO DISMISS, [Docket No. 10]; and DEFENDANT MURPHY'S MOTION TO DISMISS, [Docket No. 38].

Plaintiff is entitled to dismiss Defendants McDonald and Murphy without an Order of the Court, pursuant to Fed.R.Civ.P. 41. See Part II, supra. Because the Court has recommended such dismissal, the Court also recommends that Defendant McDonald's Motion to Dismiss, [Docket No. 10], be DENIED as moot, and that Defendant Murphy's Motion to Dismiss, [Docket No. 38], also be DENIED as moot.

IV. BACKGROUND

Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY RECOMMENDED:

1. That Plaintiff's Motion for Partial Voluntary Dismissal, [Docket No. 56], be GRANTED, and that Defendants Beth Verdin, Will McDonald, Thane Murphy, and Corry Vargason be DISMISSED without prejudice, as set forth above; and
2. That Defendant McDonand's Motion to Dismiss, [Docket No. 10], be DENIED as moot, as set forth above; and
3. That Defendant Murphy's Motion to Dismiss, [Docket No. 38], be DENIED as moot, as set forth above.

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