United States District Court, D. Minnesota
Da'Jon Allen, pro se
S. Kemp and Lindsay Strauss, Assistant Attorneys General,
Minnesota Attorney General's Office,, counsel for
defendants Ricardo Lopez, Sherlinda Wheeler, John King, David
Reishus, and Shelli Monio
REPORT AND RECOMMENDATION
KATHERINE MENENDEZ UNITED STATES MAGISTRATE JUDGE
Allen was a Minnesota prisoner at the time he filed this
case. He seeks to recover damages pursuant to 42 U.S.C.
§ 1983 from several prison official defendants for
allegedly violating his constitutional rights. This matter is
before the Court on the Motion for Summary Judgment filed by
the Defendants Ricardo Lopez, Sherlinda Wheeler, John King,
David Reishus, and Shelli Monio. ECF No. 93. Based on the
Defendants' motion and supporting documents, Mr.
Allen's written submissions in response to the motion,
and on all the files and proceedings in this case, the Court
concludes that the Defendants are entitled to judgment as a
matter of law and recommends that this action be dismissed.
SUMMARY JUDGMENT RECORD
case is fairly straightforward. Mr. Allen claims that the
Defendants violated his First Amendment right of access to
the courts by failing to arrange for him to appear by
telephone for a hearing in Hennepin County Conciliation
Court. The conciliation court dismissed Mr. Allen's case
after he failed to appear.
September 2014, Mr. Allen was serving a prison sentence in
the Minnesota Correctional Facility in Stillwater.
See Wheeler Aff. ¶ 6, ECF No. 97. On September
4, 2014, Mr. Allen filed a case against two former criminal
defense attorneys in the Hennepin County Conciliation Court
seeking to recover $3, 500 he paid to retain the attorneys
and his $70 fee for filing the conciliation court complaint.
Strauss Aff. ¶ 3, Ex. 1, ECF No. 98. He accused his
former defense attorneys of misleading him about a
“deal” and engaging in unprofessional conduct
throughout their representation in a criminal case against
him from 2002. Strauss Aff. ¶ 3, Ex. 1; id.
¶ 16, Ex. 14 (reflecting guilty plea proceedings and
sentencing between April and October 2002 in a State criminal
case). Mr. Allen's Amended Complaint in this case
discusses his former attorneys' allegedly unprofessional
and inappropriate conduct during that case, which led to Mr.
Allen's guilty plea. Am. Compl. at 1-3, ¶¶ 3-8,
ECF No. 27-1. The conciliation court scheduled a hearing
on Mr. Allen's case for November 25, 2014 at 8:30 a.m.
Strauss Aff. ¶ 4, Ex. 2. The court permitted Mr. Allen
to appear by phone and informed him that he was responsible
for contacting the Court for the hearing. Strauss Aff. ¶
6, Ex. 4.
Department of Corrections transferred Mr. Allen to Oak Park
Heights on September 22, 2014. Wheeler Aff. ¶ 6. When he
arrived at Oak Park Heights, Mr. Allen was placed on
disciplinary-segregation status and housed in the
Administrative Control Unit as a result of the events leading
to his transfer. Wheeler Aff. ¶¶ 6-7. The
conciliation court sent Oak Park Heights a letter informing
staff that Mr. Allen had a November 25, 2014 hearing
scheduled and asked the facility to arrange to have a phone
line available for him to call in to the court to provide
testimony. Strauss Aff. ¶ 7, Ex. 5. Though Mr. Allen
encountered difficulties serving both of the former defense
attorneys who represented him, the conciliation court kept
the matter scheduled for November 25, 2014. Strauss Aff.
¶¶ 9-10, Ex. 7-8.
Lopez was Mr. Allen's case manager at Oak Park Heights.
Lopez Aff. ¶ 4, ECF No. 95. After Mr. Allen arrived at
the facility, he began asking Mr. Lopez for assistance with
his conciliation court case by filing “kites, ”
informal requests raising issues that arise in prisons.
See Lopez Aff. ¶ 5; see generally
Reishus Aff., Ex. 1 (kite and grievance forms). Mr. Lopez ran
internet searches for Mr. Allen in an attempt to help him
locate one of the defense attorneys in Arizona that he was
attempting to serve. Lopez Aff. ¶¶ 10-11. Mr. Lopez
“never told Allen that [he] would send information to a
sheriff's department in Arizona, ” and correctional
officers at Oak Park Heights do not take responsibility for
completing service on behalf of an inmate. Lopez Aff. ¶
case managers arrange for an inmate to participate in a court
call by having the court contact the prison and ask for the
inmate's case manager. Lopez Aff. ¶ 15. At Oak Park
Heights, Mr. Lopez generally answered calls from the court
and then arranged for an inmate to receive the call in the
conference room in the Administrative Control Unit, at which
point Mr. Lopez would disconnect himself from the call. Lopez
Aff. ¶¶ 16, 17. Mr. Lopez knew that Mr. Allen had a
hearing on November 25, 2014 and that the court had requested
that he arrange for Mr. Allen to call the court to give
testimony. Lopez Aff. ¶ 18. Consistent with his practice
at the time, Mr. Lopez “assume[s] that after [he]
received the letter from the court, [he] called the court and
told them the phone number for the court to call to reach
Allen” on the date of the hearing. Lopez Aff. ¶
November 25, 2014, Mr. Lopez was unable to attend work for
personal reasons. Lopez Aff. ¶ 14. Mr. Lopez
“forgot about Allen's conciliation court call so
[he] did not tell any DOC employees about Allen's call or
arrange for someone else to set up the call for Allen because
[he] was dealing with what was going on in [his] personal
life on that day.” Lopez Aff. ¶ 14. Mr. Lopez
admits that he “should have notified [his] fellow case
manager to ask him to handle Allen's court call, ”
and he “later learned that Allen was not placed on the
phone that day for his hearing.” Lopez Aff. ¶ 14.
Mr. Allen did not contact other members of the Oak Park
Heights staff who were working on November 25, 2014 to ask
them to arrange for call with the court. Lopez Aff. ¶
Lopez next returned to work on December 1, 2014 following the
Thanksgiving holiday and realized that he missed setting up
Mr. Allen's telephonic appearance. Lopez Aff. ¶ 19.
Mr. Lopez called the conciliation court to explain what
happened and “[t]he court representative told [him]
that Allen had missed the court hearing and that the court
was dismissing his case.” Lopez Aff. ¶ 19.
However, the “[c]ourt staff also told [Mr. Lopez] that
if Allen had appeared, the court would have informed Allen
that the case would not go forward because he failed to serve
a party he was suing.” Lopez Aff. ¶ 19. On
December 2, 2014, Jessica Rahier, an operations supervisor
for the conciliation court, sent Mr. Allen a letter informing
him: (1) that Mr. Lopez had contacted her regarding his case;
(2) that his case was “stricken” because
“none of the parties appeared”; and (3) that he
would need to start a new case, and if he chose to do so, Ms.
Rahier would “try to get an order waiving the filing
fee for [his] new case.” Strauss Aff. ¶ 12, Ex.
Allen contacted the conciliation court after his case was
dismissed, and on December 15, 2014, Ms. Rahier sent him a
letter providing him with requested statement of claims and
summons forms to complete. Strauss Aff. ¶ 13, Ex. 11.
Ms. Rahier instructed Mr. Allen that he needed to achieve
service and, apparently in response to Mr. Allen's
December 12th letter, stated: “[j]ust to clarify,
nobody contacted me to cancel your first hearing.”
Strauss Aff. ¶ 13, Ex. 11. She continued:
After the hearing, a Mr. Lopez called me and asked what the
next step could be because, at no fault of yours, you were
not able to call in for your hearing. That is when I told him
that you would need to re-file and start over and that I will
try to get an order to waive your filing fee when you re-file
Aff. ¶ 13, Ex. 11.
Allen again asked Mr. Lopez for assistance locating one of
his former defense attorneys after his conciliation court
case was dismissed. Lopez Aff. ¶ 23. Mr. Lopez ran
internet searches based on the information Mr. Allen provided
him about the attorney and he gave Mr. Allen the information
he found. Lopez Aff. ¶ 23. Mr. Lopez told Mr. Allen that
he could not guarantee that the man he found was the attorney
Mr. Allen was looking for. Mr. Allen asked Mr. Lopez to serve
him, and Mr. Lopez again told Mr. Allen that he did not serve
people for inmates and that he did not know how to serve
someone. Lopez Aff. ¶¶ 23-24. Mr. Lopez denies
promising Mr. Allen that he would find out how to serve his
former attorney, but did call a police department in Arizona
to try and find out additional information. Lopez Aff. ¶
January 15, 2015 letter, Ms. Rahier again informed Mr. Allen
that his next step was to re-file his case and that she would
try to get the $70 filing fee waived if he chose to do so.
Strauss Aff. ¶, Ex. 12. Mr. Allen sent Mr. Lopez a kite
on January 31, 2015, asking him to set up a call with the
conciliation court. Lopez Aff. ¶ 26. In the kite Mr.
Legal call to Jessica Rahier at conciliation court to inform
her that I'm raising my claim and I'm waiting until
Department of Corrections to reimburse the full amount in
damages such as $3, 584.38 for omission and intentional
damages for failing to provide access to the phone 11/25/14
at 8:45 AM, after Ricardo Lopez was warned October 17th 2014.
Also can you inform her that the excuse that is used that I
filed wrong when I filed correctly and that a referee was
waiting on my appearance and Ricardo Lopez called after
intentionally & knowing the results of failing to be that
officer that was to provide. Can you also tell Ms. Rahier at
no fault of hers, “I'm Going to the next
Lopez Aff. ¶ 26, Ex. 1. Based on Mr. Allen's
request, Mr. Lopez told him that he would need to contact the
conciliation court by mail. Lopez Aff. ¶ 26 & Ex. 1.
There is no evidence that Mr. Allen ever refiled his
conciliation court case.
several occasions Mr. Allen sent kites and formal grievance
forms to Defendants Wheeler and Reishus. See
generally Wheeler Aff. & Reishus Aff. In one kite,
Mr. Allen asked Ms. Wheeler to call his attorney, and Wheeler
told him he must work with Mr. Lopez to resolve such issues.
Wheeler Aff. ¶ 13. Ms. Wheeler does not remember whether
Mr. Allen sent her documents to serve on any defendant in his
conciliation court case, but if he had, she states that she
would likely have returned the documents to Allen because
service of process on behalf of inmates is not among her job
duties. Wheeler Aff. ¶ 15. Ms. Wheeler did search the
internet to try and locate certain people Mr. Allen asked her
to find to avoid having several rounds of kites and responses
with him. Wheeler provided some information to Mr. Allen from
these searches. Wheeler Aff. ¶ 16. In December 2014, Mr.
Allen sent Ms. Wheeler a kite demanding that he be paid more
than $3, 000 because he missed the conciliation court
hearing, but because he had already filed a grievance about
the issues, Wheeler informed him that he needed to await a
response to the grievance. Wheeler Aff. ¶ 29. In
response to additional kites in December 2014 and January
2015, Ms. Wheeler wrote to Mr. Allen to tell him that the
Department of Corrections would reimburse him $14.38 he had
paid for postage in his conciliation court case. Wheeler Aff.
¶ 32. Eventually Wheeler also offered to have the DOC
reimburse Mr. Allen the $70 filing fee if he initiated a new
conciliation court case and the judge decided not to waive
the fee. Wheeler Aff. ¶ 33.
sent a kite to Mr. Reishus on December 12, 2014, in which he
complained that Lopez had caused him to miss the court
hearing and that Wheeler, who was Lopez's supervisor, did
not adequately handle the issue. Mr. Allen asked Mr. Reishus
to investigate, and Reishus told him he should raise the
issues with Wheeler because she supervised his case manager.
Reishus Aff. ¶¶ 6-7, Ex. 1 at 27-28.
response to one of Mr. Allen's grievance appeals, the Oak
Park Heights Warden at the time, Kent Grandlienard, denied
one of Mr. Allen's many grievances over this issue on
December 12, 2014. Defendant John King, who was then the
Assistant Commissioner of Facilities at Oak Park Heights,
see Reishus Aff. ¶10, acknowledged that Mr.
Allen was not able to make a call on the date of his
conciliation court hearing and that this was caused by an
oversight. See Pl.'s Ex. 5, Side B, ECF No. 105.
However, King affirmed the dismissal of the administrative
MOTION AND PLAINTIFF'S RESPONSE
12, 2017, the Defendants filed their motion for summary
judgment. ECF No. 93. In support of their motion, they raise
several arguments. First, they contend that Mr. Allen failed
to assert sufficient personal involvement in the alleged
unconstitutional denial of a phone hearing by Shelli Monio,
John King, David Reishus, or Sherlinda Wheeler. Defs.'
Mem. at 12-16, ECF No. 94. Second, the Defendants argue that
his complaint does not allege any violation of the United
States Constitution. To the extent Mr. Allen asserts an
access-to-courts claim or a due process claim, the Defendants
contend those claims fail on the merits. Defs.' Mem.
16-26. Third, the Defendants contend that they are entitled
to qualified immunity on all of Mr. Allen's
constitutional claims. Defs.' Mem. at 26-27. Fourth, the
Defendants argue that all of Mr. Allen's official
capacity claims are barred by ...