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Bandy v. Commissioner of Corrections

United States District Court, D. Minnesota

September 29, 2014

JOE H. BANDY, III, Plaintiff,
v.
COMMISSIONER OF CORRECTIONS, JEFF PETERSON, CRAIG OSELAND, and RICK GALLO, Defendants.

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

Margaret E. Jacot, Assistant Attorney General, MINNESOTA ATTORNEY GENERAL'S OFFICE, 445 Minnesota Street, Suite 900, St. Paul, MN 56101, for defendants Commissioner of Corrections, Peterson, and Oseland.

Thomas S. Madison, Assistant Attorney General, MINNESOTA ATTORNEY GENERAL'S OFFICE, 445 Minnesota Street, Suite 1100, St. Paul, MN 56101, for defendant Gallo.

MEMORANDUM OPINION AND ORDER ON OBJECTIONS TO THE REPORT AND RECOMMENDATION AND REPORT OF THE MAGISTRATE JUDGE

JOHN R. TUNHEIM, District Judge.

Plaintiff Joe Bandy brings this action under 42 U.S.C. § 1983 against several individuals he claims deprived him of his constitutional rights in the course of a proceeding that resulted in a decision to revoke his supervised release after he served a state criminal sentence. One defendant - Richard Gallo, who served as Bandy's public defense counsel during the proceeding - moves to dismiss the claims against him. United States Magistrate Judge Leo I. Brisbois issued a Report and Recommendation ("R&R") recommending that the Court grant Gallo's motion to dismiss. In his objections to the R&R, Bandy states his intent to remove Gallo as a Defendant in this action so as to avoid dismissal with prejudice. The Court construes this objection as a motion for voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1), and, given that no answer or motion for summary judgment has been filed, the Court will dismiss Bandy's claims against Gallo with prejudice. Although not reflective of its merits, the Court will thus reject the R&R and sustain Bandy's objections.

BACKGROUND

Plaintiff Joe 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. A 11-901, 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.

A. Complaint[1]

He filed this complaint on August 5, 2013. (Compl., Aug. 5, 2013, Docket No. 1.) 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. 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 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.) Bandy brings this action against Gallo, a public defense counsel who was assigned to represent Bandy in the revocation proceeding, and Craig Oseland, the hearing officer, Jeffrey Peterson, the state supervisor for revocation hearings, and the Commissioner of Corrections, all in their individual and official capacities.[2]

Bandy 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. 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.)

Bandy alleges that defendant Defendant Jeff 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 entered a false and incorrect account of the information presented at the hearing into the disposition and record of the hearing. ( Id. ¶ 38.) Most relevant here, he alleges that defendant Richard Gallo provided ineffective assistance in the revocation process. ( Id. ¶ 33.) His allegations against Gallo are as follows:

Defendant Gallo Rick in his personal and official capacity was negligent in the execution of []his duties as a diligent defender of plaintiff's rights and by him being under oath to abide by the laws and constitution of the State of Minnesota did not inform plaintiff of any appeal[] rights nor did he file any appeal in plaintiff's behalf. This negligence did assist this injurious action to Mr. Joe H. Bandy III and by him not doing [] more than go through the motions did make him equally guilty to this crime.

( Id. ) It is not clear which of Bandy's five causes of actions he intends to bring against Gallo. Bandy lists specific defendants under each cause of action, but does not list Gallo under any particular cause of action. ( See id. ¶¶ 54-55 (listing specifically defendants Oseland and Peterson ...


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