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Thompson v. Buroker

United States District Court, D. Minnesota

January 16, 2019

Joseph Thompson, Plaintiff,
Dezarae L. Buroker, et al., Defendants. Joseph Thompson, Plaintiff,
Julie Rose, et al., Defendants.

          Joseph Thompson, (pro se Plaintiff)

          Brett Terry, Assistant Attorney General, Office of the Minnesota Attorney General, (for Defendants in both matters).


          Tony N. Leung United States Magistrate Judge

         This matter is before the Court, United States Magistrate Judge Tony N. Leung, on Defendants' Motions to Dismiss (ECF Nos. 18 & 36, No. 16-cv-943, ECF Nos. 13 & 40, No. 16-cv-944) and Plaintiff Joseph Thompson's Motion for No Contact and Cease and Desist. (ECF No. 21, No. 16-cv-944). These motions have been referred to the undersigned magistrate judge for a report and recommendation to the Honorable Donovan W. Frank, United States District Judge for the District of Minnesota, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. Based on all the files, records, and proceedings herein, and for the reasons set forth below, this Court recommends that Defendants' motions be GRANTED IN PART and DENIED IN PART, that Thompson's motion be DENIED AS MOOT, and that the remaining counts of the operative complaints be DISMISSED for failure to comply with Federal Rule of Civil Procedure 8 unless Thompson files an amended complaint with respect to such remaining counts of the operative complaints within 30 days of the date on which the District Judge rules on these Reports and Recommendations.

         I. BACKGROUND

         Thompson is civilly committed to the Minnesota Sex Offender Program (“MSOP”). On April 11, 2016, he filed two lawsuits. The first lawsuit, 16-cv-943 (DWF/TNL) contains 11 counts and names 49 employees of the Minnesota Department of Human Services as defendants. It relates to incidents that occurred in February 2016. The second lawsuit, 16-cv-944 (DWF/TNL) contains nine counts and names 20 employees of the Minnesota Department of Human Services as defendants. Thompson filed an amended complaint in this matter on August 9, 2016. The second lawsuit relates to incidents that occurred between October 2014 and August 2016. In each lawsuit, Thompson brings claims under 42 U.S.C. § 1983 and Minnesota common law. He seeks monetary, injunctive, and declaratory relief in each action.

         Defendants moved to dismiss both lawsuits. (ECF Nos. 18 & 36, No. 16-cv-943, ECF Nos. 13 & 40, No. 16-cv-944). Thompson moved for a no-contact and cease and desist order in case number 16-cv-944. (ECF No. 21, No. 16-cv-944). Before the Court could issue a report and recommendation on any motion, the matters were stayed pending litigation in Karsjens et al. v. Piper et al., Case No. 11-cv-3659 (DWF/TNL). (ECF No. 46, No. 16-cv-943, ECF No. 53, No. 16-cv-944). The Court took each motion under advisement for report and recommendation after the stays were lifted on October 22, 2018.


         Shortly after he filed his amended complaint in No. 16-cv-944, Thompson filed a “Motion for No Contact and Cease and Desist.” In that motion, Thompson asked the Court order MSOP staff not to speak with him about a crime that he allegedly committed at MSOP.[1] Thompson contends that MSOP staff are attempting to harass him into making incriminating statements, in violation of his Fifth Amendment right to be free from self-incrimination.

         The Court construes Thompson's motion to be one for a preliminary injunction.[2]“Preliminary injunctions are intended to prevent irreparable harm and preserve the status quo during the pendency of litigation.” Katch, LLC v. Sweetser, 143 F.Supp.3d 854, 864 (D. Minn. 2015) (citing Kansas City S. Transp. Co. v. Teamsters Local Union #41, 126 F.3d 1059, 1066 (8th Cir. 1997). In deciding whether a preliminary injunction is warranted, courts consider: “(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981).

         The United States Constitution, however, limits the jurisdiction of the federal courts to ongoing cases and controversies. Haden v. Pelofsky, 212 F.3d 466, 469 (8th Cir. 2000); see U.S. Const. art. III, § 2. The case-or-controversy requirement exists at all stages of federal judicial proceedings. Potter v. Norwest Mortg., Inc., 329 F.3d 608, 611 (8th Cir. 2003). A claim must be live at the time the Court decides the issue. South Dakota v. Hazen, 914 F.2d 147, 150 (8th Cir. 1990); see also Haden, 212 F.3d at 469 (“When, during the course of litigation, the issues presented in a case ‘lose their life because of the passage of time or a change in circumstances . . . and a federal court can no longer grant effective relief,' the case is considered moot.”) (alteration in original) (citation omitted). If an action no longer satisfies the case-or-controversy requirement, it is considered moot and must be dismissed. Potter, 329 F.3d at 611.

         Here, neither Thompson nor Defendants identify the criminal case that is the subject of Thompson's motion. But this Court can take judicial notice of public records in state and federal criminal proceedings for purposes of deciding this motion. See Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007) (permitting court to take judicial notice of public records). Minnesota state court records indicate that the Carlton County Attorney's Office charged Joseph Jose Thompson, a person civilly committed to MSOP, with one count of first-degree criminal damage to property for acts occurring on October 13, 2014. See State v. Thompson, Register of Actions, No. 09-cr-15-40; State v. Thompson, A17-1501, ¶ 1, (Minn.App. Feb. 26, 2018). Thompson, in his complaint, alleges that MSOP staff placed him on “Administrative Restrictions” on October 14, 2014, after he “acted out.” Compl. ¶¶ 29-30 (ECF No. 9, No. 16-cv-944). He further alleges in his complaint that he faces criminal charges in Carlton County District Court. Id. at ¶ 31. The Court conducted a search of state and federal criminal records and has not located any other criminal charges filed against a Joseph Thompson who was confined at MSOP. Thus, the Court will presume that the criminal charge filed in Minnesota state court docket number 09-cr-15-40 is the subject of Thompson's motion.

         Assuming this to be the case, the register of actions in that matter indicates that Thompson pleaded guilty to, and was sentenced for, criminal damage to property on March 8, 2017. Thompson appealed the amount of restitution that the state trial court ordered him to pay. The Minnesota Court of Appeals affirmed and entered judgment. State v. Thompson, A17-1501, (Minn.App. Feb. 26, 2018). Thompson did not file a petition for review with the Minnesota Supreme Court. His conviction is therefore final.

         Because Thompson's conviction is final, he no longer has a Fifth Amendment privilege against self-incrimination relating to that case. Mitchell v. United States, 526 U.S. 314, 326 (1999). Thus, the Court can no longer grant Thompson effective relief on his motion because MSOP staff cannot, as Thompson alleges, infringe upon his Fifth Amendment rights by speaking to him about the October 2014 offense. Thompson's motion is therefore moot.

         There are several exceptions to the mootness doctrine. The Court may decide a moot case if secondary or collateral injuries survive after resolution of the primary injury. Riley v. I.N.S., 310 F.3d 1253, 1257 (10th Cir. 2002). The Court may consider a moot case where “the challenged conduct is capable of repetition, yet evading review.” Minn. Humane Soc'y v. Clark, 184 F.3d 795, 797 (8th Cir. 1999). The Court may also decide a moot case when the defendant has chosen to cease the alleged illegal practice but is free to resume it any time. City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982). Finally, the Court may consider a moot case if it is a properly certified class action. Sosna v. Iowa, 419 U.S. 393, 399 (1975). None of these exceptions apply here.

         First, the collateral-injuries exception does not apply because Thompson does not demonstrate anywhere in his motion that he will suffer an additional injury if MSOP staff speak with him about his offense. Second, the capable-of-repetition exception, which applies when there is “a reasonable expectation that the same complaining party will be subject to the same action again” does not apply because there is nothing more to litigate in Thompson's criminal case; nor is there a reasonable expectation that Thompson will face criminal charges again for purposes of this analysis. Spencer v. Kemna, 523 U.S. 1, 17 (1998) (alterations omitted). Third, the voluntary-cessation exception does not apply as this is not a case where MSOP staff “voluntarily ceased allegedly unlawful conduct but is free to restart such conduct at whim.” Kargbo v. Brott, No. 15-cv-2713, 2016 WL 3676162 *2 (D. Minn. July 6, 2016) (citing Already, LLC v. Nike, Inc., 133 S.Ct. 721, 727 (2013)). If MSOP staff speak to Thompson again about a pending criminal matter, it will only be if Thompson faces new criminal charges, which would present a new set of circumstances and facts for the Court to consider. Finally, the class-action exception does not apply because this case involves Thompson's individual request for relief on his own behalf. Because none of the above-mentioned exceptions to mootness apply, the Court recommends that Thompson's motion be denied as moot.


         A. Legal Standard

         When considering a Rule 12(b)(1) motion, courts “distinguish between a ‘facial attack' and a ‘factual attack' on jurisdiction.” Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016) (quotation omitted). “In a facial attack, the court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6).” Id. (citation and internal quotations omitted). “In a factual ...

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