United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
E. Rau United States Magistrate Judge
above-captioned case comes before the undersigned on
Defendants' Motion to Dismiss, (ECF No. 17), and
Plaintiffs' Motion for Leave to Amend Complaint, (ECF No.
This matter was referred for the resolution of pretrial
matters pursuant to 28 U.S.C. § 636 and District of
Minnesota Local Rule 72.1. (ECF No. 24). For the reasons
stated below, this Court recommends Defendants' motion be
granted, Plaintiffs' motion to amend be denied, and this
matter be dismissed.
Russell John Hatton and Lloyd Desjarlais initiated suit on
November 10, 2016. (Compl., ECF No. 1). Hatton and Desjarlais
are civilly committed in the Minnesota Sex Offender Program
(“MSOP”) in Moose Lake, Minnesota. They assert
that Defendants-MSOP employees-are responsible for
restrictions placed on the practice of their Native American
religious beliefs. Hatton and Desjarlais brought suit
pursuant to 42 U.S.C. § 1983 under the First, Fourth,
and Fourteenth Amendments to the United States Constitution,
Religious Land Use and Institutionalized Persons Act of 2000
(“RLUIPA”), 42 U.S.C. § 2000cc et
seq., the American Indian Religious Freedom Act
(“AIRFA”), 42 U.S.C. § 1996 et
seq., and the Minnesota Constitution.
moved to dismiss the complaint on various grounds. (ECF No.
17). The parties submitted briefing on the motion, (ECF Nos.
20, 28, 29, 32), but before the motion could be ruled upon
this case was stayed on June 30, 2017 as it was deemed
sufficiently related to the ongoing class-action litigation
of Karsjens, et al. v. Piper, et al., Case No.
11-cv-3659 (DWF/TNL), (ECF No. 34). The stay was lifted on
October 22, 2018, (ECF No. 39), and this Court permitted the
parties an opportunity to file supplemental briefing
addressing any changes in law that may affect the Court's
analysis of the already-submitted motion to dismiss, (ECF No.
40). Supplemental briefs were submitted and the motion is
ripe for determination. (ECF Nos. 41, 43). Simultaneous with
their supplemental brief, Plaintiffs moved to amend their
complaint. (ECF No. 42).
received a Behavioral Expectation Report (“BER”)
for misconduct-a rule violation-on September 8, 2016.
(Compl., at 14; Aff. of Lloyd Desjarlais, at 1, ECF No. 3).
Because of the BER, Desjarlais was on Restriction Status
from September 11 to November 20, 2016. (Compl., at 14;
Desjarlais Aff., at 1). Hatton received a BER for misconduct
on October 8, 2016. (Compl., at 12; Aff. of Russell Hatton,
at 1, ECF No. 2). Hatton was placed on Restriction Status III
for 28 days, from October 13 through November 9, 2016.
(Compl., at 12-13; Hatton Aff., at 1).
September 11, 2016, Hansen and Pierce told Desjarlais he
could not attend Native American religious services due to
the BER he received three days prior. (Compl., at 14;
Desjarlais Aff., at 1). Likewise, on October 13, 2016, MSOP
employees Randy Gordon,  Benoit, Sayovitz, and Tara Osborne told
Hatton he could not attend Native American religious services
due to the BER he received five days prior. (Compl., at 12).
Hatton and Desjarlais assert they were denied the opportunity
to participate in sweat lodge ceremonies, pipe ceremonies,
smudge ceremonies, indoor and outdoor talking circles, and
special events. (Compl., at 13, 14).
asked Hansen if he had spoken with his supervisor about
Desjarlais attending Native American religious services, with
Hansen indicating he was following MSOP policy in denying
Desjarlais's participation. (Compl., at 14; Desjarlais
Aff., at 1). Similarly, Hatton filed a complaint with Bryant
regarding his denied access to Native American religious
services. (Compl., at 13). Bryant and Hansen each stated that
MSOP policy denied religious services to clients on
Restriction Status III. (Compl., at 13, 14; Desjarlais Aff.,
at 1). MSOP clients on Restriction Status III may not attend
spiritual group ceremonies or studies, but spiritual
self-study materials are available upon client request.
(Compl., at 13, 15; Hatton Aff., at 1; Desjarlais Aff., at 1;
Aff. of David Bornus, Ex. A, ECF No. 21).
and Desjarlais allege that when they are permitted to attend
Native American religious services, such as the sweat lodge
and pipe ceremonies, they are searched and wanded afterwards.
(Comp., at 13, 14-15). Hatton and Desjarlais claim this
policy is ineffective because MSOP telegraphs when they will
search individuals, which ensures contraband will be hidden
beforehand and leads to the result that MSOP “has never
found any contraband since its inception” of searches
following Native American religious services. (Compl., at 13,
assert MSOP policy, and Defendants' enforcement of it,
violates their religious rights. Plaintiffs seek to prevent
Defendants from withholding religious services “as a
tool to punish” Plaintiffs because their religion is
therapeutic. (Compl., at 16-17).
MOTION TO DISMISS
determining a Rule 12(b)(1) motion, courts “must
distinguish between a ‘facial attack' and a
‘factual attack' on jurisdiction.”
Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th
Cir. 2016) (quoting Osborn v. United States, 918
F.2d 724, 729 n.6 (8th Cir. 1990)). In a facial attack, like
that at issue here, ‘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).'” Carlsen,
833 F.3d at 908 (quoting Osborn, 918 F.2d at 729
deciding a Rule 12(b)(6) motion, a court accepts as true all
well-pleaded factual allegations and then determines
“whether they plausibly give rise to an entitlement to
relief.” Ashcroft v. Iqbal, 556 U.S. 662, 664
(2009). The court must draw reasonable inferences in the
plaintiff's favor. Zink v. Lombardi, 783 F.3d
1089, 1098 (8th Cir. 2015) (citation omitted). “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Sletten
& Brettin Orthodontics v. Cont'l Cas. Co., 782
F.3d 931, 934 (8th Cir. 2015) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 547 (2007)); accord
Zink, 783 F.3d at 1098. Facial plausibility of a claim
exists “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). Although a sufficient
complaint need not be detailed, it must contain
“[f]actual allegations . . . enough to raise a right to
relief above the speculative level.” Twombly,
550 U.S. at 555 (citation omitted); see Id.
(“The pleading must contain something more . . . than .
. . a statement of facts that merely creates a suspicion of a
legally cognizable right of action.”) (quotations and
citation omitted). Additionally, complaints are insufficient
if they contain “naked assertions devoid of further
factual enhancement.” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 557) (internal
quotation marks omitted).
assessing a pro se complaint, the court applies
“less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam) (quotation and citation omitted);
accord Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir.
2014). “If the essence of an allegation is discernible,
” then the court, in applying a liberal construction to
pro se complaints, “should construe the
complaint in a way that permits the layperson's claim to
be considered within the proper legal framework.”
Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015)
(quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004)). Despite the liberal construal of such complaints, the
pro se plaintiff “still must allege sufficient
facts to support the claims advanced.” Stringer v.
St. James R-1 Sch. Dist., 446 F.3d 799, 802 (8th Cir.
2006) (quoting Stone, 364 F.3d 912, 914 (8th Cir.
2004)). Thus, pro se litigants “must set a
claim forth in a manner which, taking the pleaded facts as
true, states a claim as a matter of law.”
Stringer, 446 F.3d at 802 (quoting Cunningham v.
Ray, 648 F.2d 1185, 1186 (8th Cir. 1981)).
Some of Plaintiffs' Requested Relief is Barred
sue all Defendants in their official and individual
capacities. Plaintiffs seek declaratory and injunctive
relief, as well as monetary damages, but do not differentiate
how the relief sought applies to Defendants.
Eleventh Amendment bars suit against a state, absent a
state's consent to filing of such a suit. Alabama v.
Pugh, 438 U.S. 781, 782 (1978) (per curiam). This
immunity applies to claims against officials sued in their
official capacities. See, e.g., Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71 (1989). A
federal court lacks jurisdiction over claims barred by the
Eleventh Amendment. Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 121 (1984). Thus, “Section
1983 plaintiffs may sue individual-capacity defendants only
for money damages and official-capacity defendants only for
injunctive relief.” Brown v. Montoya, 662 F.3d
1152, 1161 n.5 (10th Cir. 2011) (citing Hafer v.
Melo, 502 U.S. 21, 30 (1991)); Greenwalt v. Indiana
Dept. of Corr., 397 F.3d 587, 589 (7th Cir. 2005)
(“[S]ection 1983 does not permit injunctive relief
against state officials sued in their individual as distinct
from their official capacity.”); Wolfe v.
Strankman, 392 F.3d 358, 360 n.2 (9th Cir. 2004) (noting
that injunctive and equitable relief are not available in
§ 1983 individual-capacity suits). Thus, to the extent
Plaintiffs seek injunctive relief against Defendants in their
individual capacities, such requests for relief must be
dismissed. And to the extent Plaintiffs seek monetary relief
against Defendants in their official capacities, such
requests for relief must also be dismissed.
Plaintiffs Do Not Plead Personal Involvement of Various
must also allege Defendants' personal involvement or
responsibility for the constitutional violations to state a
§ 1983 claim. Ellis v. Norris, 179 F.3d 1078,
1079 (8th Cir. 1999). Moreover, “[g]overnment officials
may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat
superior.” Iqbal, 556 U.S. at 676.
“While the doctrine of respondeat superior does not
apply to § 1983 cases, a supervisor may still be liable
under § 1983 if either his direct action or his
‘failure to properly supervise and train the offending
employee' caused the constitutional violation at
issue.” Jackson v. Nixon, 747 F.3d 537, 543
(8th Cir. 2014) (quoting Tlamka v. Serrell,
244 F.3d 628, 635 (8th Cir. 2011)). Thus, “[e]ven if a
supervisor is not involved in day-to-day operations, his
personal involvement may be found if he is involved in
‘creating, applying, or interpreting a policy' that
gives rise to unconstitutional conditions.”
Jackson, 747 F.3d at 543 (quoting Bonner v.
Outlaw, 552 F.3d 673, 679 (8th Cir. 2009)).
the complaint only pleads actions by Defendants Sandra
Bryant, Mark Hansen, Sharlonda Pierce, Scott Benoit, Steve
Sayovitz, and Tara Osborne. Plaintiffs do not allege any
personal involvement by Defendants Emily Johnson Piper,
Shelby Richardson, Jannine Hèbert, Dr. Peter Puffer,
Kathryn Lockie, Nancy Stacken, Dr. Elizabeth Peterson, Kevin
Moser, Terry Kneisel, Chad Mesojedec, Jerry Fjerkenstad, Gene
Anderson, Steve Sajdak, Dana Osborne, Sara Kulas, Meg
McCauley, Ross Peterson, Donald Geil, or Kyle Rodgers. The
only time these defendants are mentioned in the complaint is
in the section identifying the defendants, asserting each
continues to damage and has caused injury and implemented,
retained and carried out practices and policies beyond the
legitimate scope of employment duties at the MSOP that
[violate or violated] the constitutional, statutory, and
common law rights of Plaintiff's [sic] where [she or he]
continues to condone and ...