United States District Court, D. Minnesota
ORDER AND REPORT AND RECOMMENDATION
E. RAU, United States Magistrate Judge
above-captioned case comes before the undersigned on the
following six motions: Defendants' First Motion to
Dismiss; Hines's First Motion to Amend; Hines's
Second Motion to Amend; Defendants' Motion to Stay
Discovery; Hines's Motion to Appoint Counsel; and
Defendants' Second Motion to Dismiss. This matter was
referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(B)-(C) and District of Minnesota Local Rule 72.1
for a report and recommendation. For the reasons stated
below, the Court recommends both Motions to Amend be denied
and both Motions to Dismiss be granted. Correspondingly,
the Court denies as moot the Motion to Appoint Counsel and
the Motion to Stay Discovery.
is a prisoner at the Minnesota Correctional Facility in Oak
Park Heights (“MCF-OPH”). See (Letter
Dated Apr. 11, 2016) [Doc. No. 21]. Hines initiated this
§ 1983 action on February 12, 2016, against Tom Roy
(“Roy”), the Commissioner of the Minnesota
Department of Corrections (“DOC”); and several
employees of the Minnesota Correctional Facility at
Stillwater (“MCF-Stillwater”): Steve Hammer
(“Hammer”), the warden; Bruce Julson
(“Julson”), a program director; Gloria Andreachi
(“Andreachi”), a lieutenant; Jenny Carufel
(“Carufel”), a lieutenant; Julie Ryan
(“Ryan”), a case manager; Adam Murphy
(“Murphy”), a sergeant; C. Cole
(“Cole”), a registered nurse; Heidi Norvak
(“Norvak”), a correctional officer; Kerri
Livingston (“Livingston”), a correctional
officer; and ten “unknown”
officers. (Original Compl. at 1, 3-5). When Hines
filed his Original Complaint, he was incarcerated at
MCF-Stillwater, but was later transferred to MCF-OPH.
See (id. at 3); (Letter Dated Apr. 11,
2016). All events giving rise to this lawsuit arose at
MCF-Stillwater. See (Proposed Am. Compl. at 3).
primary thrust of Hines's claims is that correctional
officers conspired to separate Hines from his legal work and
interfered with his constitutional right of access to the
courts. See (Proposed Am. Compl. at 5-6).
Hines alleges that on May 16, 2015, Rudesil provided him with
the opportunity to shower. (Id. at 7). While Hines
was in the shower, Murphy or Rudesil allowed “several
unknown officers” access to Hines's
cell. (Id. at 7). Hines checked his
trial transcript, “brief[, ] and addendum” and
found that “several had been changed and records were
added as well.” (Id. at 8). Two inmates housed in
the same wing reported observing officers enter the
segregation wing through the back door and enter Hines's
cell. (Id. at 9). Hines's attempts to address
the events of May 16, 2015, with MCF-Stillwater through its
grievance procedure and other methods, including directly
contacting MCF offices and writing to various civil rights
and legal organizations, were unsuccessful. See
(id. at 9-11).
23, 2015, Hines experienced chest pains and MCF-Stillwater
employees came to his cell to escort him to the medical unit.
(Id. at 11). Hines insisted on bringing his legal
work with him. (Id. at 11-12). Emergency personnel
took Hines to a hospital for further examination, and Cole,
Andreachi, and other correctional officers assured Hines that
his legal work would be safe while he was at the hospital.
(Id. at 12-13). Hines insisted, however, on being
able to sign paperwork demonstrating that he was refusing
further medical treatment if he could not take his legal work
to the hospital. See (id. at 13).
Eventually, Andreachi gave Hines permission to take his legal
work with him after she searched it. (Id.).
Andreachi told another MCF officer, Torboh, that if Hines
“goes to surgery” she “want[s] that
bag.” (Id. at 14). Torboh and another
MCF-Stillwater correctional officer had a black bag with them
when they escorted Hines to Lakeview Hospital in Stillwater.
(Id.). Hines alleges that Andreachi told several
other MCF officers to obtain his legal work if he went into
surgery. See (id. at 14-15).
following day, two unknown officers escorted Hines back to
MCF-Stillwater. (Id. at 16). Hines alleges that upon
arrival, yet another unknown officer separated him from his
legal work. (Id. at 17). Shortly thereafter, the bag
containing Hines's legal work was returned to Hines, but
Hines noticed that his “bag ha[d] been opened”
and the “knot on [the] bag was re-tied loose.”
(Id. at 18). At this point, Hines heard “a
large quantity of papers being ripped up” in the
adjacent cell. (Id.).
further alleges that on May 27, 2016, Murphy and Rudesil
conspired to separate him from his legal work by telling him
he had a doctor's appointment, psychology appointment,
and attorney call. (Id. at 19-20). Hines declined to
attend these appointments or answer his attorney's call
because he did not want to be separated from his legal work.
(Id.). Hines unsuccessfully attempted to address the
events of May 16 and 23 with Roy and Hammer. See
(id. at 20).
alleges that “soon after” he filed his grievances
and this lawsuit, he became the target of harassment and
retaliation as follows. First, Hines alleges that some
Defendants began to “toss [his]
food.” (Id. at 21); see also
(id. at 20).
Livingston told Hines that he was moving to
“A-East.” (Id. at 22). Hines perceived
this action “as a threat upon his life” because
Andreachi runs that unit and she “could have easily had
[Hines] stabbed or beaten to death, due to [his] status as a
sex offender, as well as to stop the court from knowing and
finding out the truth.” (Id.). Hines refused
to move, and Livingston falsely wrote that Hines was
on April 6, 2016, Hines was transferred to MCF-OPH, which he
asserts was retaliatory for filing this lawsuit and
“exposing the conspiracy and deliberate indifferences
that were exhibited and invidious discrimination because
Plaintiff was a sex offender standing up for his rights not
to be discriminated against without equal protection of the
laws.” (Id. at 22-23). Hines further alleges
MCF-Stillwater retained his legal work, causing him to miss a
deadline to appeal his re-sentencing. (Id. at 24).
Although Hines states he was ultimately provided with his
property on May 11 or 12, 2016, he “found several
letters (religious) studies he had not been given nor knew if
they had been sent at all some 1 yr. old.”
(Id.). He also alleged that his “indigent
envelopes” had all been confiscated, preventing him
“from alerting [the] court.” (Id.).
Hines alleges that several Defendants told inmates and other
MCF-Stillwater staff that Hines was “a sex offender
child molester, ” and referred to him by derogatory
names reflecting that status. (Id. at 18). Hines
alleges that this invoked a “prisoner's code”
against sex offenders, which made Hines fear retaliation from
other inmates, placing his “life in danger of being
assaulted.” (Id. at 19). As a result, Hines
alleges he did not shower, had to use anti-fungal cream, and
lost weight and muscle tone. (Id. at 18-19).
alleges eight claims, some of which are duplicative: (1)
conspiracy “to obstruct the due course of justice in a
state court”; (2) “denying equal protection of
the laws”; (3) depriving Hines of equal protection of
the laws under the Fourteenth Amendment; (4) “breach of
duty to act and protect”; (5) “violating the
federal prohibitions of the Fourteenth Amendment”; (6)
violating Hines's Fourth Amendment “right to be
secure in his papers”; (7) violating the Eighth
Amendment's prohibition of cruel and unusual punishment;
and (8) “retaliatory treatment.” (Id. at
2) (internal quotation marks omitted); see also
(id. at 29-31) (identifying specific Defendants and
claims against them).
seeks the following relief: an injunction ordering Roy to (1)
“immediately arrange for [Hines] to be transferred to
MCF-Moose Lake to participate in the court ordered MSOP
treatment program”; (2) “remove Plaintiff from
punitive segregation and place [Hines] in general population
at MCF-Moose Lake with restoration of all rights and
privileges”; and (3) “carry out the mandated
order, without delay, for treatment, directed by such court
recommended mand[a]tory order.” (Id. at 31).
Hines also seeks compensatory and punitive damages from
Defendants. (Id. at 31-32).
stated above, Hines initiated this lawsuit on February 12,
2016. (Original Compl.). Roy, Hammer, Julson, Andreachi,
Carufel, Ryan, Murphy, and Norvak, in their official
capacities, moved to dismiss the Original Complaint on May
10, 2016. (First Mot. to Dismiss). Defendants
argued that the Eleventh Amendment bars Hines's claims
for damages; Hines cannot maintain a § 1983 cause of
action against Defendants in their official capacities; and
the federal court lacks the authority to grant much of the
relief Hines seeks. See (Mem. in Supp. of First Mot.
to Dismiss at 6-11).
3, 2016, the Court received Hines's First Motion to
Amend. Although Hines did not attach a proposed amended
complaint, he expressed his desire to clarify in what
capacities Defendants were sued and add additional Defendants
and factual allegations. See (First Mot. to Amend
Compl.). On the same day, Hines also submitted a memorandum
opposing Defendants' First Motion to Dismiss. (Pl.'s
Mem. of Law in Opp'n to First Mot. to Dismiss) [Doc. No.
days later, the Court received Hines's Second Motion to
Amend. In this motion, Hines stated that he intended to
dismiss claims against the DOC, as well as all claims for
injunctive relief and claims for relief seeking criminal
charges to be brought against certain Defendants. (Second
Mot. to Amend Compl. at 1). Hines also sought to add
Defendants and request a jury trial. (Id.). Hines
attached a proposed amended complaint, in which he expands
his allegations regarding the incidents of May 16, 23-24, and
27, 2016, as described above. (Proposed Am. Compl. at 1-21).
Additionally, Hines alleges that he was retaliated against
for filing grievances and this lawsuit. (Id. at
oppose Hines's Second Motion to Amend, arguing Hines
failed to follow the Local Rules and his Proposed Amended
Complaint is futile because under Heck v. Humphrey,
512 U.S. 477 (1994), Hines cannot challenge the validity of
his criminal conviction through a § 1983
suit. (Defs.' Mem. Opposing Second Mot. to
Amend) [Doc. No. 52 at 3-5]. Defendants also argue that the
Court cannot grant the injunctive relief Hines requests and
that the injunctive relief is not related to the claims in
his Proposed Amended Complaint. (Id. at 5-6).
2016, Hines moved the Court to appoint counsel, and
Defendants moved to stay discovery, which Hines
opposed. (Mot. to Appoint Counsel); (Mot. to Stay
Disc.); (Mem. of Law in Opp'n of Defs.' Mot. to Stay
Disc.) [Doc. No. 78]. Defendants also responded to
Hines's First Motion to Amend Complaint, arguing the
motion should be denied because Hines failed to follow the
Local Rules and relying on their opposition to Hines's
Second Motion to Amend. (Defs.' Mem. Opposing Pl.'s
Mots. (Docs. 13, 27, 31, 47)) [Doc. No. 74 at 18] (“The
DOC Defendants opposed [Hines's Second Motion to Amend]
because it did not comply with the Court's rules and
because amendment would be futile. To the extent the [First
Motion to Amend] is considered separately, the Court should
deny the motion because it does not comply with the
Court's rules.” (citation omitted)).
August 9, 2016, Defendants filed their Second Motion to
Dismiss, again arguing Heck bars Hines's claims.
(Defs.' Mem. of Law in Supp. of Mot. to Dismiss,
“Mem. in Supp. of Second Mot. to Dismiss”) [Doc.
No. 98 at 6-8]. Defendants also argue Hines failed to state a
claim for conspiracy to violate his civil rights, failed to
state a claim based on access to the courts, cannot maintain
an action based on violations of criminal statutes, and
failed to state an equal protection claim. (Id. at
8-16). Defendants further argue that Hines's claims for
monetary damages are prohibited. (Id. at 16-18).
Finally, Defendants argue that the Court cannot award the
injunctive relief Hines seeks and he has not alleged facts in
support of his request for relief regarding retaliation and
transfer. (Id. at 18-21). Hines responded, and
Defendants filed a reply. (Mem. of Law in Opp'n of Second
Mot. to Dismiss, “Resp. to Second Mot. to
Dismiss”) [Doc. No. 106]; (Defs.' Reply Mem. of Law
in Supp. of Second Mot. to Dismiss, “Reply”)
[Doc. No. 111]. Although the Second Motion to Dismiss is
directed toward Hines's Original Complaint, Defendants
argue that Hines's Proposed Amended Complaint
“similarly fails to state a cognizable claim upon which
relief may be granted, for the same reasons as the [O]riginal
[C]omplaint.” (Reply at 3 n.2).
Motions to Dismiss and Motions to Amend
the Court will address the procedural irregularities that
accompany competing and overlapping Motions to Amend and
Motions to Dismiss.
First Motion to Dismiss was filed on behalf of only the
Defendants who had been served at that time. (Mem. in Supp.
of First Mot. to Dismiss at 2). The Second Motion to Dismiss
was filed on behalf of all individually named Defendants and
specifically waived any remaining service issues. (Mem. in
Supp. of Second Mot. to Dismiss at 1-2 n.4) (“In order
to expedite the proceedings and because the marshals are
attempting to serve the Defendants, the Defendants bringing
this motion waive further service requirements and bring this
motion in both their individual and official
capacities.”). Arguably, the First Motion to Dismiss is
moot because the Second Motion to Dismiss is filed on behalf
of the same Defendants. The Court primarily refers to the
arguments made in connection with the Second Motion to
Dismiss, but nonetheless considers the arguments made in both
Motions to Dismiss. Because both Motions to Dismiss address
the Original Complaint, the Court will address the Motions to
because Hines's Motions to Amend appear to be directed at
curing the deficiencies identified in the First Motion to
Dismiss, the Court considers whether Hines's Proposed
Amended Complaint would alter the Court's analysis on the
Motions to Dismiss. See Besett v. Wadena County,
Civ. No. 10-934 (JRT/LIB), 2010 WL 5439720, at *6 (D. Minn.
Dec. 7, 2010) (Brisbois, Mag. J.) (“The Eighth Circuit
has held that, as a procedural matter, it is plainly
erroneous for a district court to grant a motion to dismiss,
and then to deny a pending motion to amend as moot, without
consideration of the merits of the motion to amend.”),
adopted 2010 WL 5441937 (Dec. 28, 2010) (Tunheim,
J.); see also Pure Country, Inc. v. Sigma Chi
Fraternity, 312 F.3d 952, 956 (8th Cir. 2002) (“If
anything, Pure Country's motion to amend the complaint
rendered moot Sigma Chi's motion to dismiss the original
Court finds that the Motions to Dismiss should be granted.
Further, because Hines's Proposed Amended Complaint would
not save his claims from dismissal, the Court recommends his
Motions to Amend be denied as futile.
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
party may move the Court to dismiss a claim if, on the
pleadings, a party has failed to state a claim upon which
relief may be granted. The complaint must contain
“sufficient factual matter . . . to ‘state a
claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Pro se pleadings must be construed liberally, but
they “may not be merely conclusory: the complaint must
allege facts, which if true, state a claim as a matter of
law.” Martin v. Aubuchon, 623 F.2d 1282, 1286
(8th Cir. 1980). A court accepts the facts alleged in the
complaint as true, and grants “reasonable inferences in
favor of the nonmoving party.” Lind v. Midland
Funding, L.L.C., 688 F.3d 402, 405 (8th Cir. 2012).
Legal conclusions “must be supported by factual
allegations. When there are well-pleaded factual allegations,
a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief.” Iqbal, 556 U.S. at 679. The factual
allegations, however, “must be enough to raise a right
to relief above the speculative level.”
Twombly, 550 U.S. at 555. “A pleading that
offers ‘labels and conclusions' or a
‘formulaic recitation of the elements of a cause of
action will not do.'” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555).
15(a)(1) provides that a party may amend its pleading once as
a matter of course “21 days after serving it” or
“if the pleading is one to which a responsive pleading
is required, 21 days after service of a responsive pleading
or 21 days after service of a motion under Rule 12(b), (e),
or (f), whichever is earlier.” “In all other
cases, a party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). “Unless there
is a good reason for denial, such as undue delay, bad faith,
or dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
non-moving party, or futility of the amendment, leave to
amend should be granted.” Becker v. Univ. of Neb.
at Omaha, 191 F.3d 904, 907-08 (8th Cir. 1999) (internal
quotation marks omitted). “Denial of a motion for leave
to amend on the basis of futility means the district court
has reached the legal conclusion that the amended complaint
could not withstand a motion to dismiss under Rule 12(b)(6)
of the Federal Rules of Civil Procedure.” Zutz v.
Nelson, 601 F.3d 842, 850 (8th Cir. 2010).