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Schlumpberger v. Osborne

United States District Court, D. Minnesota

January 25, 2019

Allyn Lee Schlumpberger, Plaintiff,
v.
Dana Osborne, Patrick Rodning, Troy Basaraba, Security Manager, Kevin Moser, Julianna L. Beavens, and Richard O'Connor, sued in their individual and official capacities, Defendants.

          Allyn Lee Schlumpberger, MSOP, (pro se Plaintiff); and

          Brett Terry and Frederic J. Argir, Assistant Attorneys General, Minnesota Attorney General's Office, for Defendants Osborne, Rodning, Moser, Beavens, and O'Connor [1].

          REPORT & RECOMMENDATION

          Tony N. Leung United States Magistrate Judge District of Minnesota

         I. INTRODUCTION

         This matter comes before the Court on Defendants Dana Osborne, Patrick Rodning, Kevin Moser, Julianna L. Beavens, and Richard O'Connor's (collectively, “Defendants”) Motion to Dismiss Plaintiff's Complaint (ECF No. 18). This motion has been referred to the undersigned for a report and recommendation to the district court, the Honorable Susan Richard Nelson, District Judge for the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1. (ECF No. 24.) Based upon the record, memoranda, and proceedings herein, IT IS HEREBY RECOMMENDED that Defendants' motion to dismiss be GRANTED.

         II. BACKGROUND[2]

         Pro se Plaintiff Allyn Lee Schlumpberger brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his civil rights “secured by the Fourth and Fourteenth Amendments.” (Compl. ¶¶ 2, 3, ECF No. 1.)

         A. Factual Allegations

         Plaintiff has been involuntarily committed to the State of Minnesota's Department of Human Services and the Minnesota Sex Offender Program (“MSOP”). (Compl. ¶¶ 1, 6, G.) Plaintiff currently resides in the MSOP facility located in Moose Lake, Minnesota. (See generally Compl.) Defendants are all MSOP employees. (Compl. ¶¶ 2, 7(b)-(f).)

         In or around May 2015, MSOP clients were notified of pending new room assignments. (Compl. ¶ 12.) As a result of the new room assignment, Plaintiff was to be placed with a roommate. (Compl. ¶¶ 10, 12, 16.) Plaintiff was vocal about not wanting a roommate. Towards the end of May, Plaintiff “commented to staff that he wasn't going to take a roommate.” (Compl. ¶ 12.) In the middle of June, Plaintiff stated in a “Client Request” to MSOP staff that he was “informing you in writing that [he] d[id] not intend to willingly move.” (Compl. ¶ 9.) An MSOP staff member responded the following day, stating that the room changes were moving forwarded and he would need “to work with [Plaintiff] to find a roommate.” (Compl. ¶ 10.) At the end of August, Plaintiff “again told his treatment team that he wasn't moving.” (Compl. ¶ 12.)

         Plaintiff's move was to occur in the beginning of September. On September 1, Plaintiff “refused to comply with property moves.” (Compl. ¶ 12.) On September 2, Plaintiff “was given several prompts and directives to go to his new room assignment on unit 1-A.” (Compl. ¶ 12.) Plaintiff “continually refused to cooperate and comply.” (Compl. ¶ 12; see Compl. ¶ 11.) “There were over a hundred other moves that were scheduled to occur . . ., ” and Plaintiff's “refusal prevented another client from being able to reside in his scheduled room.” (Compl. ¶ 12.)

         Later that day, Plaintiff “was asked again . . . to move to [his] new room assignment but he again refused to cooperate and comply with staff directives.” (Compl. ¶ 12; see Compl. ¶ 11.) When Plaintiff again refused to move, MSOP staff members “approached and instructed [Plaintiff] to turn around for restraints.” (Compl. ¶ 11.) Plaintiff was then escorted to the High Security Area and placed on Protective Isolation Status “for non-compliance with room assignment during formal population count.” (Compl. ¶¶ 11, 12.) Defendant Beavens signed off on Plaintiff's Protective Isolation Status along with another MSOP staff member. “The reason that Protective Isolation was initiated is as follows: (1) client is exhibiting dangerous behavior that is uncontrollably [sic] by any other means; (2) placement on Protective Isolation Status is not for the convenience of staff; and (3) placement on Protective Isolation Status is not a substitute for programming.” (Compl. ¶ 15 (quotation omitted).)

         An Individual Program Plan was created for Plaintiff the same day based on his “refus[al] to move to his new assigned living unit.” (Compl. ¶¶ 14, 16.) The Individual Program Plan provided that Plaintiff would “have access to two 30[-]minute[] breaks daily in the High Security Area . . . common area to address hygiene, exercise, and fresh air”; “submit client requests for anything outside of these parameters related to hygiene, exercise, and fresh air”; and “be asked one time per shift if he is ready to leave the [High Security Area].” (Compl. ¶ 16; accord Compl. ¶ 17.) “If [Plaintiff] cho[se] to move to his assigned unit, staff w[ould] work with him at that time.” (Compl. ¶ 16; accord Compl. ¶ 17.) Any move could “occur between 6:30 a.m. and 9:45 p.m.” (Compl. ¶ 16; accord Compl. ¶ 17.) If Plaintiff “request[ed] to move outside of these hours, he w[ould] have to wait until the next day to be moved.” (Compl. ¶ 16; accord Compl. ¶ 17.) Defendants Beavens and O'Connor signed the Individual Program Plan. (Compl. ¶ 14.)

         The next day, September 3, Defendant O'Connor prepared a Protective Isolation Status Review Report. (Compl. ¶¶ 18, 20.) Defendant O'Connor noted, among other things, that Plaintiff had been offered treatment materials by MSOP staff and, when asked “if he was going to return back to the unit, ” Plaintiff “reported that he was not going back.” (Compl. ¶ 18; see Compl. ¶ 21.) Plaintiff's Protective Isolation Status was discontinued. (Compl. ¶¶ 13, 20, 23.)

         Additional documentation noted that, while Plaintiff's Protective Isolation Status was discontinued after 24 hours, Plaintiff refused to leave the High Security Area and remained there on an Individual Program Plan. (Compl. ¶ 23.) This document was signed by Defendants Osborne, Basaraba, and Rodning. (Compl. ¶ 23.)

         Based on these events, Plaintiff alleges that his constitutional rights were violated because he has the right to be free from “unreasonable restrictions of any kind”; “unreasonable placement” in the High Security Area without a documented risk to Plaintiff or public safety or “a documented and legitimate purpose”; and “excessive, unresponsive, restrictive restrictions without due process.” (Compl. ¶ 26.) As best as this Court is able to tell, Plaintiff appears primarily to be alleging that his substantive and procedural due process rights under the Fourteenth Amendment were violated when he was placed in the High Security Area/Protective Isolation for refusing to move to his new room assignment. Additionally, some of Plaintiff's claims appear to derive from the Fourth Amendment. See infra Section III.C.3.b. Plaintiff's claims are brought against Defendants in their individual and official capacities. Plaintiff seeks declaratory and injunctive relief as well as damages.

         B. Procedural History

         On February 8, 2017, Defendants filed the instant motion to dismiss. (ECF No. 18.) The motion was referred to the undersigned and a briefing schedule was issued. (ECF Nos. 24, 25.) Following the completion of briefing, this matter was subsequently stayed by the Honorable John R. Tunheim, Chief District Judge for the United States District Court for the District of Minnesota, based on related litigation pending in Karsjens v. Piper, Case No. 11-cv-3659 (DWF/TNL). (ECF No. 31.) On October 22, 2018, Chief District Judge Tunheim ordered that the stay be lifted. (ECF No. 34.) Having been fully briefed prior to the imposition of the stay, Defendants' motion is ripe for a determination on the papers.

         III. ANALYSIS

         Defendants have moved for dismissal of this matter based on the Eleventh Amendment and failure to state a claim. The Court considers each in turn.

         A. Defendant Basaraba

         Plaintiff commenced this action in January 2016. (See generally Compl.) There is no dispute that Defendant Basaraba passed away before the Complaint was filed. In fact, Plaintiff specifically notes in the Complaint that Defendant O'Connor is being “automatically substituted” for Defendant Basaraba under Federal Rule of Civil Procedure 25 based on Basaraba's death in December 2015. (Compl. n.1.) In his memorandum in opposition, Plaintiff contends that another individual, “Steve Sayovitz” should be substituted for Defendant Basaraba under Rule 25. (Pl.'s Mem. in Opp'n at 1 n.1, ECF No. 26.)

         “Rule 25(a) authorizes the substitution of proper parties when an existing party dies after the suit is commenced, but does not address situations where the death occurred before the suit was filed.” Lacy v. Tyson, No. 1:07-cv-00381-LJO-GSA-PC, 2012 WL 4343837, at *2 (E.D. Cal. Sept. 20, 2012), adopting report and recommendation, 2012 WL 5421230 (E.D. Cal. Nov. 5, 2012). “[C]ourts have held, as a rule, that the substitution of parties cannot be ordered in conformance with Rule 25(a)(1) where the person for whom substitution is sought died prior to being named a party.” Id. (citing cases); see, e.g., Coleman v. United States, Civ. No. 15-1942 (RBK) (AMD), 2017 WL 2636045, at *5 (D. N.J. June 19, 2017) (substitution not appropriate where defendant died prior to commencement of action); Jenkins v. South Carolina Dep't of Corr., Civil Action No. 8:09-3293-RMG-BHH, 2010 WL 4609115, at *1 (D. S.C. Aug. 25, 2010) (same), adopting report and recommendation, 2010 WL 4622510 (D. S.C. Nov. 4, 2010); see also 7C Charles Alan Wright, Arthur Miller & Mary Kay Kane, Federal Practice & Procedure § 1951 (3d ed.) (“Substitution is not possible if one who was named as a party in fact died before the commencement of the action.”). Because Defendant Basaraba passed away before the commencement of this action, all claims against him should be dismissed. See Lacy, 2012 WL 4343837, at *2; Jenkins, 2010 WL 4609115, at *1.

         The Court recognizes that Plaintiff is proceeding pro se. Even if the Court were to grant Plaintiff leave to amend to add the proper individuals as defendants for the individual and official-capacity claims he is attempting to assert against Defendant Basaraba, Plaintiff has failed to sufficiently allege a violation of his constitutional rights for the reasons that follow.

         B. Eleventh Amendment Immunity

         Defendants first assert that Plaintiff's claims for monetary damages against them in their official capacities are barred by the Eleventh Amendment. Plaintiff agrees that such damages are barred. (Pl.'s Mem. in Opp'n at 4-5.)

         “A plaintiff may assert § 1983 claims against a public official acting in his individual capacity and in his official capacity.” Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007); accord Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). “A suit against a government official in his or her official capacity is ‘another way of pleading an action against an entity of which an officer is an agent.'” Baker, 501 F.3d at 925 (quoting Monell v. Dep't of Social Servs., 436 U.S. 658, 690 n.55 (1978)); see Johnson, 172 F.3d at 535 (“A suit against a public employee in his or her official capacity is merely a suit against the public employer.”). Defendants are all employees of MSOP and the Department of Human Services, an arm of the State of Minnesota. Daniels v. Jesson, No. 13-cv-736 (JNE/SER), 2014 WL 3629874, at *5 (D. Minn. July 22, 2014) (“MSOP operates under the auspices of the Minnesota Department of Human Services, which is itself a subdivision of the State of Minnesota.”).

         “[T]he Eleventh Amendment bars actions, in Federal Court, which seek monetary damages from individual State Officers, in their official capacities, as well as State Agencies, because such lawsuits are essentially for the recovery of money from the state.” King v. Dingle, 702 F.Supp.2d 1049, 1069 (D. Minn. 2010) (quotation omitted). Thus, “[t]he Eleventh Amendment protects the State, and the arms of the State, from liability for monetary damages in a Section 1983 action” such as this. Id.; see also, e.g., Semler v. Ludeman, No. 09-cv-0732 (ADM/SRN), 2010 WL 145275, at *7 (D. Minn. Jan. 8, 2010) (“It is well-settled that in a 42 U.S.C. § 1983 action, the Eleventh Amendment precludes an award of money damages against a state official acting in his or her official capacity.”). Accordingly, to the extent Plaintiff seeks monetary damages from Defendants in their official capacities, Plaintiff's claims are barred by the Eleventh Amendment. See, e.g., Daniels, 2014 WL 3629874, at *4-6; Karsjens v. Jesson, 6 F.Supp.3d 916, 942 (D. Minn. 2014); Semler, 2010 WL 145275, at *6-7.

         Plaintiff also seeks prospective and injunctive relief. “A plaintiff may maintain an action against a government official if the complaint seeks only injunctive or prospective relief.” Semler, 2010 WL 145275, at *7. Declaratory judgments and injunctions are the types “of prospective relief that can be sought in federal court from state officials sued in their official capacities, notwithstanding the state's sovereign immunity.” Bennie v. Munn, 822 F.3d 392, 397 (8th Cir. 2016); accord McDaniel v. Precythe, 897 F.3d 946, 951-52 (8th Cir. 2018).

         Therefore, to the extent Plaintiff seeks monetary damages against Defendants in their official capacities, the Court recommends that such claims be dismissed without prejudice. See Roth v. ...


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