United States District Court, D. Minnesota
Thompson, (pro se Plaintiff)
Terry, Assistant Attorney General, Office of the Minnesota
Attorney General, (for Defendants in both matters).
N. Leung United States Magistrate Judge
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.
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.
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,
THOMPSON'S MOTION FOR NO CONTACT AND CEASE AND
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. 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.
Court construes Thompson's motion to be one for a
preliminary injunction.“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).
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.
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.
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.
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.
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
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.
MOTIONS TO DISMISS THOMPSON'S CLAIMS
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