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Daywitt v. Minnesota Department of Human Services

United States District Court, D. Minnesota

May 23, 2017

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.


          Wilhelmina M. Wright United States District Judge

         Plaintiff Kenneth Steven Daywitt[1] 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 to dismiss.


         Daywitt, 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.

         Daywitt 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.[2] 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 declaratory relief.

         Defendants 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 Defendants.”

         The 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.[3]


         I. Defendants' Objections to the R&R

         Defendants 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).

         A. Claims Against Defendant Berg in His Official Capacity

         Defendants 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.

         To 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.

         Daywitt 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 ...

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