United States District Court, D. Minnesota
Lamont Thomas, No. 228679, MCF-Rush City, 7600525th Street,
Rush City, MN 55069, pro se plaintiff.
Jeffrey A. Timmerman and Helen R. Brosnahan, DAKOTA COUNTY
ATTORNEY'S OFFICE, 1560 Highway 55, Hastings, MN 55033,
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
R. TUNHEIM CHIEF JUDGE
April 29, 2015, Plaintiff Desean Lamont Thomas filed an
action under 42 U.S.C. § 1983 asserting that while in
custody at the Dakota County Jail, Defendants Pastor James
Bzoskie, Lieutenant Lawrence Heart, Lieutenant Benjamin
Verby, and Dakota County
(“Defendants”) violated Thomas's constitutional
rights. (Compl., Apr. 29, 2015, Docket No. 1; Second Am.
Compl., Aug. 11, 2016, Docket No. 115.) Specifically, Thomas
alleged that: Pastor Bzoskie and Lieutenant Heart violated
his First Amendment right to free exercise of religion by
preventing Thomas from gathering with other Muslims in the
jail for communal worship; Pastor Bzoskie and Lieutenant
Verby violated his First Amendment free-exercise rights by
preventing him from keeping Islamic worship materials in his
cell; Pastor Bzoskie and Lieutenant Heart violated his
Fourteenth Amendment equal protection rights because they
allowed members of other faiths to engage in communal
worship; and that Pastor Bzoskie and Lieutenant Verby
violated his Fourteenth Amendment equal protection rights by
denying him worship materials while giving members of other
religions preferential treatment. (See Second Am.
Compl. ¶¶ D-G; Order at 9-10, 20-21 Aug. 11, 2016,
Docket No. 112 (discussing claims against Lieutenant Heart
and summarizing all claims)).
November 30, 2016, Thomas moved for partial summary judgment,
and on December 27, 2016, Defendants moved for summary
judgment. On May 8, 2017, United States Magistrate Judge
Katherine Menendez issued a Report and Recommendation
(“R&R”) recommending that the Court deny
Thomas's motion and grant Defendants' motion.
Subsequently, Thomas timely filed objections to the
objects to the R&R on two grounds. First, he argues that
the Magistrate Judge failed to address his claim that the
jail unconstitutionally prohibited imam-led Islamic
gatherings. Second, he requests the Court grant him leave to
file two new affidavits and resubmit previous affidavits.
Because Thomas never raised the first objection before the
Magistrate Judge, and because his second objection would not
change the result of the R&R, the Court will overrule
Thomas's objections, adopt the R&R, deny Thomas's
motion for summary judgment, and grant Defendants' motion
for summary judgment.
STANDARD OF REVIEW
the filing of a report and recommendation by a magistrate
judge, a party may “file specific written objections to
the proposed findings and recommendations.”
Fed.R.Civ.P. 72(b)(2); accord D. Minn. LR
72.2(b)(1). “The objections should specify the portions
of the magistrate judge's report and recommendation to
which objections are made and provide a basis for those
objections.” Mayer v. Walvatne, No. 07-1958,
2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008).
Court reviews de novo any portion of an R&R
“that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3); accord D. Minn. LR
72.2(b)(3). Accordingly, the Court will review the portions
of the R&R that Thomas objected to de novo.
does not object to the R&R's conclusion that the
jail's prohibition of inmate-led Islamic gatherings is
constitutional. Instead, he contends for the first time that
the jail also unconstitutionally prohibited imam-led Islamic
gatherings. While pro se plaintiffs are held to less
stringent standards, the Court cannot consider arguments that
were not presented to the Magistrate Judge. See Ridenour
v. Boehringer Ingelheim Pharm., Inc., 679 F.3d
1062, 1067 (8th Cir. 2012) (collecting cases
holding a court cannot consider arguments not before a
magistrate judge); see also Embaye v. Minneapolis Police
Dep't, No. 14-2896, 2016 WL 3960374, at *13 (D.
Minn. June 22, 2016) (holding a pro se
plaintiff's addition of new claims in response to
defendants' summary judgment motion was improper),
adopted by 2016 WL 3962867 (D. Minn. July 21,
the undisputed evidence does not support Thomas's
position. The record provides that Pastor Bzoskie arranged
for an imam to meet with Thomas and attempted to arrange for
an imam to continue visiting at the jail, but no imam offered
to voluntarily visit the jail on an ongoing basis. (Aff. of
Pastor James Bzoskie ¶¶ 9-14, Dec. 27, 2016, Docket
No. 181.) As Pastor Bzoskie's efforts “to recruit
[imam] volunteers evidence[s] a ‘good faith
accommodation'” of Thomas's constitutional
rights, the Court will overrule his first objection.
Akbar v. Gomez, No. 96-55280, 1997 WL 547944, at *2
(9th Cir. Sept. 3, 1997) (quoting Allen v.
Toombs, 827 F.2d 563, 569 (9th Cir. 1987));
see also Shepard v. Peryam, 657 F.Supp.2d 1331, 1347
(S.D. Fla. 2009) (“The fact that no imam has contacted
the institution, and that services have not been provided,
does not amount to a constitutional deprivation.”).
next requests that the Court consider two affidavits and
allow him the opportunity to resubmit old affidavits that the
R&R declined to consider for failing to comply with the
signature and penalty of perjury requirements provided in 28
U.S.C. § 1746. However, the two affidavits do not
provide any new information that the Magistrate Judge did not
already consider. Those affidavits, authored by two other
Muslims in the jail, state that the jail staff made
disparaging comments to Muslims, treated Muslims negatively,
and rejected requests for Islamic services such as
Jumu'ah. (See Pl.'s Objs. to R&R, May
18, 2017, Docket No. 201.) The R&R already considered
substantially similar affidavits. (See R&R at
7-8, May 8, 2017, Docket No. 198.) Finally, as to
Thomas's request to resubmit previous affidavits that
failed to comply with 28 U.S.C. § 1746, the Magistrate
Judge explained that “even if the excluded ...