United States District Court, D. Minnesota
Kenneth Steven Daywitt, and others similarly situated, Plaintiff,
Minnesota Department of Human Services, Minnesota Sex Offender Program, Emily Johnson Piper, Jannine Hebert, Peter Puffer, Jim Berg, Jerry Fjerkenstad, and Katherine Lockie, in their individual and official capacities, Defendants.
ORDER ADOPTING IN PART AND REJECTING IN PART REPORT
Wilhelmina M. Wright United States District Judge
Kenneth Steven Daywitt challenges a policy of the Minnesota Sex
Offender Program (MSOP) that requires Daywitt to participate
in his treatment group on certain religious holy days during
which work is proscribed for adherents to his faith.
Defendants filed a motion to dismiss. Currently before the
Court are the February 6, 2017 Report and Recommendation
(R&R) of United States Magistrate Judge Leo I. Brisbois,
(Dkt. 25), addressing the motion to dismiss, and
Defendants' objections to the R&R, (Dkt. 26). For the
reasons addressed below, the Court overrules Defendants'
objections, adopts in part and rejects in part the R&R,
and grants in part and denies in part Defendants' motion
an adherent of the Orthodox Jewish faith, is civilly
committed to MSOP in Moose Lake, Minnesota. Daywitt's
religion proscribes its adherents from working on certain
holy days. As part of his treatment at MSOP, Daywitt
participates in treatment groups with the goal of being
released from MSOP in the future. Daywitt alleges that he has
requested that his absences from treatment group activities
be excused on holy days during which he is prohibited from
working. Those requests have been denied, and his absences
have been unexcused.
brought this lawsuit, alleging that MSOP and its employees
have violated his constitutional and statutory rights by
refusing to excuse his absences from his treatment group on
religious holidays. Daywitt asserts claims against the
Minnesota Department of Human Services, MSOP, and six named
defendants, all in their official and individual
capacities. Daywitt asserts claims against each
defendant under 42 U.S.C. § 1983 for violations of his
rights guaranteed by the First and Fourteenth Amendments to
the United States Constitution and under both the Religious
Land Use and Institutionalized Persons Act (RLUIPA), 42
U.S.C. §§ 2000cc et seq., and the
Minnesota Constitution. Daywitt seeks an award of
compensatory and punitive damages, along with injunctive and
move to dismiss Daywitt's complaint “in its
entirety.” But in Defendants' memorandum in support
of the motion to dismiss, counsel for Defendants states that
she “currently represents all individually-named
Defendants in their official capacities and anticipates
representing them in their individual capacities once the
indemnification process is complete.” Yet nothing in
counsel's notice of appearance limits that appearance to
representing the individually named Defendants only in their
official capacities. To the contrary, the notice states that
“the undersigned enters her appearance as counsel for
R&R recommends that the Court grant in part and deny in
part Defendants' motion to dismiss. Specifically, the
R&R recommends that Count 2-alleging substantive due
process and equal protection violations under Section
1983-and Count 3-requesting compensatory, injunctive and
declaratory relief-be dismissed in their entirety. As to
Count 1-alleging violations of the First Amendment, RLUIPA,
and the Minnesota Constitution under Section 1983-the R&R
recommends dismissal of all claims against MSOP and the
Minnesota Department of Human Services, all claims asserted
under RLUIPA, and all claims asserted under the Minnesota
Constitution. The R&R also recommends dismissal of
Daywitt's Section 1983 claims against Defendants Puffer,
Fjerkenstad, and Lockie and against all of the named
defendants in their official capacities to the extent Daywitt
seeks monetary damages.
Defendants' Objections to the R&R
raise two objections to the R&R. First, Defendants
contend that Daywitt's claims against Berg in his
official capacity should be dismissed because the complaint
does not plausibly allege that Berg implemented the
challenged policy or had the authority to rescind the policy.
Second, Defendants assert that the Court lacked jurisdiction
over the named defendants in their individual capacities when
the R&R was issued because those defendants had not been
properly served. The Court reviews each issue de novo.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b)(3); LR 72.2(b)(3); Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (per curiam).
Claims Against Defendant Berg in His Official
first object to the R&R's recommendation that the
Court deny their motion to dismiss Daywitt's claims
against Berg in his official capacity. Defendants argue that
because Daywitt has not alleged that Berg has the authority
to modify the challenged policy, the allegations against Berg
must be dismissed.
establish liability under Section 1983 in an
official-capacity lawsuit, a plaintiff must show that the
official either acted “pursuant to an unconstitutional
governmental policy or custom” or “possessed
final authority over the subject matter at issue and used
that authority in an unconstitutional manner.” Nix
v. Norman, 879 F.2d 429, 433 (8th Cir. 1989).
“[S]tate officials may be sued in their official
capacities for prospective injunctive relief when the
plaintiff alleges that the officials are acting in violation
of the Constitution or federal law.” Mo. Child Care
Ass'n v. Cross, 294 F.3d 1034, 1037 (8th Cir. 2002).
Contrary to Defendants' argument, a Section 1983
plaintiff is not required to sue only a state official with
authority to change an allegedly unconstitutional policy.
See Nix, 879 F.2d at 433.
alleges that MSOP's policy requires MSOP clients who are
adherents of the Orthodox Jewish faith to attend treatment
groups on religious holy days when work is proscribed by
their religion. Daywitt also alleges that MSOP imposed
negative consequences when Daywitt refused to attend
treatment group on holy days in observance of his faith. In
the only paragraph of the complaint that expressly addresses
Berg, Daywitt alleges that Berg “implemented, carried
out and retained a practice or procedure that inhibited
[Daywitt] from practicing his faith to the fullest.”
Because these allegations state a claim for relief against
Berg, the Court overrules ...