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Benson v. Piper

United States District Court, D. Minnesota

January 25, 2019

Michael D. Benson, Plaintiff,
v.
Emily Johnson Piper, Comm. of the Dept. of Human Services; Shelby Richardson, MSOP Dir.; Kevin Moser, Fac. Dir.; Terry Kniesel, Asst. Fac. Dir.; Steve Sadjak, Asst. Fac. Dir.; Rich O'Conner, Super.; Steve Sayovitz, Super.; Ron Fischer, Super.; Nate Johnson, Super.; Mike Goeglein, Super.; Scott Benoit, Man.; Lori Aldrin, Off. Of the Day; Julianna Beavens, Off. of the Day; Ryan Fahland, Asst. Super.; Randy Gordon, Asst. Super.; Andrea Kosloski, Unit 1-B Dir.; Brian Ninneman, Unit 1-C Dir.; Robert Rose, Unit 1-C Dir.; Kathryn Schesso, Clin. Super.; Jana Korby, Clin. Super.; Tara Osbourne, Clin. Super.; Nicole Vaineo, Clin. Ther.; Kyle Randa, Sec. Couns. Lead; Elizabeth Wyatt, Sec. Couns. Lead; Derrick Koecher, Sec. Couns. Lead; Scott Gianinni, Sec. Couns.; Brennan Shorter, Sec. Couns.; Blake Carey, Sec. Couns.; Gordon Huhta, Sec. Couns.; Robert Grescyzk Jr., Sec. Couns.; Wendy McGowan, Sec. Couns [sic; Barry Giersdorf, Sec. Couns.; Chris St. Germain, Sec. Couns.; Jordan Goodman, Sec. Couns.; Sam Brindamor, Sec. Couns.; Bruce Lind, Sec. Couns.; Travis Cowell, Sec. Couns.; Jenny Collelo, Sec. Couns.; and Paul Michelizzi, Sec. Couns., in their individual and official capacities, Defendants.

          Michael D. Benson, MSOP, 1111 Highway 73, Moose Lake, MN 55767 (pro se Plaintiff); and

          Ralph John Detrick, Assistant Attorney General, Minnesota Attorney General's Office, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for Defendants).

          REPORT & RECOMMENDATION

          TONY N. LEUNG UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         This matter comes before the Court on Defendants Emily Johnson Piper, Shelby Richardson, Kevin Moser, Terry Kniesel, Steve Sadjak, Rich O'Conner, Steve Sayovitz, Ron Fischer, Nate Johnson, Mike Goeglein, Scott Benoit, Lori Aldrin, Julianna Beavens, Ryan Fahland, Randy Gordon, Andrea Kosloski, Brian Ninneman, Robert Rose, Kathryn Schesso, Jana Korby, Tara Osbourne, Nicole Vaineo, Kyle Randa, Elizabeth Wyatt, Derrick Koecher, Scott Gianinni, Brennan Shorter, Blake Carey, Gordon Huhta, Robert Grescyzk Jr., Wendy McGowan, Barry Giersdorf, Chris St. Germain, Jordan Goodman, Sam Brindamor, Bruce Lind, Travis Cowell, Jenny Collelo, and Paul Michelizzi's (collectively, “Defendants”) Motion to Dismiss Plaintiff's Complaint (ECF No. 24). This motion has been referred to the undersigned for a report and recommendation to the district court, the Honorable Donovan W. Frank, 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. Based upon the record, memoranda, and proceedings herein, IT IS HEREBY RECOMMENDED that Defendants' motion to dismiss be GRANTED IN PART and DENIED IN PART.

         II. PROCEDURAL HISTORY

         On May 19, 2017, Defendants filed the instant motion to dismiss. (ECF No. 24.) The undersigned issued a case management order setting forth a briefing schedule. (ECF No. 31.) Following the completion of briefing, this matter was subsequently stayed based on related litigation pending in Karsjens v. Piper, No. 11-cv-3659 (DWF/TNL). (ECF No. 56.) On October 22, 2018, the Honorable John R. Tunheim, Chief District Judge for the United States District Court for the District of Minnesota ordered that the stay be lifted. (ECF No. 59.) Having been fully briefed prior to the imposition of the stay, Defendants' motion is ripe for a determination on the papers.

         III. ANALYSIS

         Plaintiff is involuntarily committed to the Minnesota Sex Offender Program (“MSOP”) run by the State of Minnesota's Department of Human Services (“DHS”). (Compl. ¶ 1, ECF No. 1.) Plaintiff brings this action under 42 U.S.C. § 1983, asserting that Defendants have violated his constitutional rights under the First, Fourth, and Fourteenth Amendments. Plaintiff also alleges that Defendants have violated his rights under the Minnesota Constitution. The thrust of Plaintiff's lawsuit is that Defendants have retaliated against him in various ways for filing Benson v. Fischer, [1] No.16-cv-509 (DWF/TNL) (“ID Lawsuit”), a separate action challenging the identification badges MSOP requires its clients to wear.[2] Benson v. Piper, No. 17-cv-266 (DWF/TNL), 2017 WL 4221105, at * 1 (D. Minn. July 31, 2017), adopting report and recommendation, 2017 WL 4220446 (D. Minn. Sept. 21, 2017). Plaintiff's Complaint spans 35 pages, names nearly 40 defendants in their individual and official capacities, and encompasses at least 25 separate incidents of purported retaliation between June and December 2016. As best as the Court is able to tell, Plaintiff's claims can generally be summarized as follows: First Amendment claims for retaliation, free exercise of religion, and defamation based on false behavior reports; Fourth Amendment claims for unreasonable searches and seizures based on a search of his room, strip searches of his person, and placement in more restrictive settings; and Fourteenth Amendment claims for procedural and substantive due process violations based on his placement in more restrictive settings.[3] According to Plaintiff, Defendants' conduct “can only be explained as being the result of Plaintiff filing . . . [the ID Lawsuit] as other clients are not targeted or harassed in the same way.” (Compl. ¶ 12.) Plaintiff also raises tandem claims under the Minnesota Constitution.

         Defendants move to dismiss this action in its entirety for lack of subject matter jurisdiction and failure to state a claim.

         A. Allegations Considered

         “In analyzing a motion to dismiss, a court must accept the allegations contained in the complaint as true and make all reasonable inferences in favor of the nonmoving party.” Martin v. Iowa, 752 F.3d 725, 727 (8th Cir. 2014). “At this stage of the litigation, [courts] accept as true all of the factual allegations contained in the complaint, and review the complaint to determine whether its allegations show that the pleader is entitled to relief.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008). When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), “the court generally must ignore materials outside the pleadings.” Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). Courts may “consider matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned[] without converting the motion [to dismiss] into one for summary judgment.” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012) (quotation omitted); see, e.g., Ashanti v. City of Golden Valley, 666 F.3d 1148, 1150-51 (8th Cir. 2012); Enervations, Inc. v. Minn. Mining & Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004).

         In his response to Defendants' motion to dismiss, Plaintiff has included a number of new factual allegations. (See, e.g., Pl.'s Resp. at 3-6, ECF No. 32.) Defendants assert that these allegations are not properly before the Court and request that they not be considered. (Defs.' Reply at 3, ECF No. 36.)

         “It is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss.” Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989). “Any allegations made in subsequent legal memoranda cannot correct inadequacies within a complaint.” Tuttle v. Lorillard Tobacco Co., 118 F.Supp.2d 954, 959 (D. Minn. 2000); see also, e.g., Martin v. ReliaStar Life Ins. Co., 710 F.Supp.2d 875, 887 (D. Minn. 2010). “To hold otherwise would mean that a party could unilaterally amend a complaint at will.” Morgan Distrib. Co., 868 F.2d at 995 (citation omitted).

         The Court recognizes that Plaintiff is proceeding pro se, and pro se litigants are accorded a certain degree of latitude. At the same time, “[i]n granting the deference owed to pro se parties, [the court may not] assume the role of advocate for the pro se litigant.” Machen v. Iverson, No. 11-cv-1557 (DWF/JSM), 2012 WL 566977, at *15 (D. Minn. Jan. 23, 2012) (quotation omitted), report and recommendation adopted, 2012 WL 567128 (D. Minn. Feb. 21, 2012); see Bracken v. Dormire, 247 F.3d 699, 705 (8th Cir. 2001) (Arnold, J., dissenting) (“Of course, a pro se pleading is not a magic hat out of which a court may pull any claim it thinks should have been advanced.”). It is not clear from the “new” allegations in Plaintiff's response which of the nearly 40 Defendants were involved in the acts complained of. And, it is not clear if Plaintiff is attempting to supplement his existing claims with additional facts or attempting to bring entirely new claims. In addition, unrelated to the instant motion to dismiss, Plaintiff has filed a motion to consolidate this action with the ID Lawsuit and a motion for leave to amend the Complaint, which the Court will be addressing by separate order. (ECF Nos. 60, 61.)

         While the Court is recommending that several of Plaintiff's claims be dismissed for failure to state a claim, the Court is not recommending that this matter be dismissed in its entirety or, with the exception of Plaintiff's claims based on the Minnesota Constitution, that such claims be dismissed with prejudice. And although Plaintiff's motion for leave to amend will be denied at this time because Plaintiff has not articulated with any sort of specificity how he seeks to amend the Complaint or complied with Local Rule 15.1 by enclosing a copy of the proposed amended pleading and “a version of the proposed amended pleading that shows-through redlining, underlining, strikeouts, or other similarly effective typographic methods-how the proposed amended pleading differs from the operative pleading, ” D. Minn. LR 15.1(b), the denial is without prejudice for Plaintiff to bring a proper motion to amend in the future if he wishes to do so. This way, Plaintiff can present all of his proposed amendments in an organized fashion, rather than Defendants and the Court having to guess as to how any such amendments fit into the framework of Plaintiff's existing Complaint.

         Accordingly, the Court has considered only the allegations in the Complaint for purposes of Defendants' motion to dismiss.

         B. Jurisdictional Arguments

         Defendants move for dismissal of Plaintiff's requests for monetary relief against them in their official capacities as well as Plaintiff's state-law claims against them in their official capacities under Rule 12(b)(1) for lack of subject matter jurisdiction.

         1. Monetary Damages in Defendants' Official Capacities

         “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 DHS, 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.” 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.”). Plaintiff agrees that he cannot seek monetary damages against Defendants in their official capacities. (Pl.'s Resp. at 13.) 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.

         As Plaintiff notes, however, he also seeks 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. United States, 476 Fed.Appx. 95 (8th Cir. 2012) (per curiam).

         2. State Constitutional Claims

         In his Complaint, Plaintiff has included a number of tandem claims alleging violations of the Minnesota Constitution alongside his § 1983 claims alleging violations of the federal Constitution. (Compl. ¶¶ 66-89.) “The Eleventh Amendment bars federal court jurisdiction over state law claims against unconsenting states or state officials when the state is the real, substantial party in interest, regardless of the remedy sought.” Cooper v. St. Cloud State Univ., 226 F.3d 964, 968 (8th Cir. 2000) (citing Pennhurst v. State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)). “The Supreme Court has construed the Eleventh Amendment, which by its express terms applies only to actions against states by citizens of other states, to nevertheless also bar suits in federal court against a state by its own citizens.” Minnesota Pharmacists Ass'n v. Pawlenty, 690 F.Supp.2d 809, 815 (D. Minn. 2010) (citing Edelman v. Jordan, 415 U.S. 651, 662-63 (1974)).

         Moreover, “[u]nlike 42 U.S.C. § 1983, Minnesota has no statutory scheme providing for private actions based on violations of the Minnesota constitution.” Riehm v. Engelking, No. 06-cv-293 (JRT/RLE), 2007 WL 37799, at *8 (D. Minn. Jan. 4, 2007), affirmed, 538 F.3d 952 (8th Cir. 2008). Stated differently, “[t]here is no private cause of action for violations of the Minnesota Constitution.” Eggenberger v. West Albany Twp., 820 F.3d 938, 941 (8th Cir. 2016) (quotation omitted) (citing cases). Therefore, the Court recommends that all claims based on the Minnesota Constitution be dismissed with prejudice.

         C. Statement of a Claim

         The Court now turns to whether Plaintiff has stated claims under § 1983 for violations of his rights under the First, Fourth, and Fourteenth Amendments. “To withstand a Rule 12(b)(6) motion, a complaint must contain sufficient factual allegations to ‘state a claim to relief that is plausible on its face.'” Smithrud v. City of St. Paul, 746 F.3d 391, 397 (8th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). “A claim has facial plausibility 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 556). “[A]lthough a complaint need not contain ‘detailed factual allegations,' it must contain facts with enough specificity ‘to raise a right to relief above the speculative level.'” United States ex rel. Raynor v. Nat'l Rural Utils. Coop. Fin., Corp., 690 F.3d 951, 955 (8th Cir. 2012) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. “In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences most favorably to the complainant.” Raynor, 690 F.3d at 955.

         “In evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim, [courts] hold a pro se complaint, however inartfully pleaded, to less stringent standards than formal pleadings drafted by lawyers.” Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quotation omitted). But, “[a]lthough pro se complaints are to be construed liberally, ‘they 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 v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). Stated differently, “this standard does not excuse pro se complaints from ‘alleg[ing] sufficient facts to support the claims advanced.'” Gerstner v. Sebig, LLC, 386 Fed.Appx. 573, 575 (8th Cir. 2010) (per curiam) (alteration in original) (quoting Stone, 364 F.3d at 914). As the Eighth Circuit Court of Appeals has explained,

[w]hen we say that a pro se complaint should be given liberal construction, we mean that if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework.

Stone, 364 F.3d at 915.

         “Section 1983 creates a species of tort liability for the deprivation of any rights, privileges, or immunities secured by the Constitution.” Manuel v. City of Joliet, 137 S.Ct. 911, 916 (2017) (quotations and citations omitted). “To state a claim under 42 U.S.C. § 1983, a plaintiff must show that he was deprived of a right secured by the Constitution and the laws of the United States and that the deprivation was committed by a person acting under color of state law.” Alexander v. Hedback, 718 F.3d 762, 765 (8th Cir. 2013); see 42 U.S.C. § 1983.

         1. Official-Capacity Claims

         While damages are not allowable against a state official in his or her official capacity under § 1983, the same is not true with respect to declaratory and injunctive relief. See, e.g., McDaniel, 897 F.3d at 951-52; Bennie, 822 F.3d at 397. Claims seeking declaratory and injunctive relief can be brought against a state official in his or official capacity “because those claims are treated as an action against the official personally and not against the State.” Calzone v. Hawley, 866 F.3d 866, 872 (8th Cir. 2017) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 n.10 (1989); Ex Parte Young, 209 U.S. 123, 159-60 (1908)); see also Will, 491 U.S. at 71 n.10 (“Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.'” (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985))).

         “[T]o establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right.” Graham, 473 U.S. at 166. “More is required in an official-capacity action, however, for a governmental entity is liable under § 1983 only when the entity itself is a moving force behind the deprivation . . . .” Id. (quotation omitted). “[T]hus, in an official-capacity suit the entity's ‘policy or custom' must have played a part in the violation of federal law.” Id. Defendants assert that, to the extent Plaintiff seeks prospective injunctive relief against them in their official capacities, such claims fail because Plaintiff has not plausibly alleged that an MSOP policy or practice was the moving force behind the alleged constitutional violations.

         “To establish liability in an official-capacity suit under section 1983, a plaintiff must show either that the official named in the suit took an action pursuant to an unconstitutional governmental policy or custom, or that he or she possessed final authority over the subject matter at issue and used that authority in an unconstitutional manner.” Nix v. Norman, 879 F.2d 429, 433 (8th Cir. 1989) (citation omitted); accord Raymond v. Bd. of Regents of Univ. of Minn., 140 F.Supp.3d 807, 814 (D. Minn. 2015); Daywitt v. Minnesota, No. 14-cv-4526 (MJD/LIB), 2015 WL 4094199, at *12 (D. Minn. July 6, 2015). “A governmental policy involves a deliberate choice to follow a course of action made from among various alternatives by an official who has the final authority to establish governmental policy.” Brockinton v. City of Sherwood, 503 F.3d 667, 674 (8th Cir. 2007) (quotation omitted). “A governmental custom involves a pattern of persistent and widespread practices which become so permanent and well settled as to have the effect and force of law.” Id. (quotation omitted).

         While Plaintiff has included boilerplate language in the Complaint that Defendants acted pursuant to some sort of policy, (see, e.g., Compl. ¶¶ 9, 10, 69, 75, 81, 87), Plaintiff has not identified the particular policy Defendants purportedly acted in accordance with. Plaintiff has not alleged that the purported retaliation resulted from any official MSOP policy authorizing such retaliation. Moreover, with respect to the one policy Plaintiff does identify, MSOP Policy 415-5085 (governing use of the High Security Area (“HSA”)), Plaintiff does not allege that the policy itself is unconstitutional, but that Defendants did not act in accordance with it. (See, e.g., Compl. ¶¶ 34, 42, 48.) Thus, as Defendants point out, Plaintiff “does not take issue with actual MSOP polices and procedures, ” but “with the conduct of certain individuals in a series of interactions and conversations with [him].” (Defs.' Mem. in Supp. at 6-7, ECF No. 25.)

         Nor has Plaintiff pleaded facts from which it can be reasonably inferred that any custom played a part in the alleged constitutional violations. “Custom” liability requires:

(1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees; (2) deliberate indifference to or tacit authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and (3) that plaintiff was injured by acts pursuant to the governmental entity's custom, i.e., that the custom was a moving force behind the constitutional violation.

         Snider v. City of Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014). As will be discussed in greater detail below, Plaintiff alleges that he was subjected to numerous adverse actions by various MSOP employees in response to the filing of the ID Lawsuit. In response to Defendants' motion to dismiss, Plaintiff describes these adverse actions as showing “those in the MSOP acting in unison as a ‘moving force' to intimidate, defame, isolate, and deprive [him] of his constitutional rights.” (Pl.'s Resp. at 3.)

         Again as will be discussed in greater detail below, Plaintiff has failed to plead facts from which it can be reasonably inferred that most of the actions complained of were motivated at least in part by the filing of the ID Lawsuit. While the Court has assumed the truth of Plaintiff's allegations for the purposes of the instant motion, it is speculative to conclude that such actions were part of a pattern of retaliation in the absence of facts connecting most of them to the filing of the ID Lawsuit. Further, the pattern of alleged constitutional conduct must be sufficiently widespread “to constitute a custom or usage with the force of law.” Kelly v. City of Omaha, 813 F.3d 1070, 1076 (8th Cir. 2016). While Plaintiff has alleged that he was retaliated against by various MSOP employees in response to the filing of a particular lawsuit, Plaintiff has not alleged that other MSOP clients were retaliated against in response to filing litigation. See id.; Ware v. Jackson Cty., 150 F.3d 873, 881-82 (8th Cir. 1998). As such, Plaintiff has failed to plead facts from which it can be reasonably inferred that a custom of retaliation was the moving force behind the alleged constitutional violations in this case.

         Plaintiff offered nothing more than conclusory allegations as to the existence of a policy or custom. Because Plaintiff has not pleaded sufficient facts showing that the alleged acts were committed according to a policy or custom, the Court recommends that Plaintiff's official-capacity claims be dismissed without prejudice in their entirety as to all Defendants.

         2. Constitutional Claims

         a. First Amendment

         Plaintiff alleges Defendants have violated his rights under the First Amendment by (i) retaliating against him for filing the ID Lawsuit; (ii) infringing his religious freedom; and (iii) defaming him through false behavior reports.

         i. Retaliation for Filing Lawsuit

         “It is well established that the right to file a legal action is protected under the First Amendment.” Spencer v. Jackson Cty. Mo., 738 F.3d 907, 911 (8th Cir. 2013); see Evenstad v. Herberg, 994 F.Supp.2d 995, 1001 (D. Minn. 2014) (“[C]ivilly committed persons retain their First Amendment Rights to exercise the freedom of speech and to seek redress of grievances.”).

To establish a § 1983 claim for retaliation in violation of the First Amendment, a plaintiff must allege (1) that he engaged in a protected activity, (2) that the defendants responded with adverse action that would chill a person of ordinary firmness from continuing in the activity, and (3) that the adverse action was motivated at least in part by the exercise of the protected activity.

         Beaulieu v. Ludeman, 690 F.3d 1017, 1025 (8th Cir. 2012) (quotation omitted); see Benson v. Piper, No. 16-cv-509 (DWF/TNL), 2016 U.S. Dist. LEXIS 190502, at *16 (D. Minn. Dec. 8, 2016), adopting report and recommendation as modified, 2017 U.S. Dist. LEXIS 158017 (D. Minn. Mar. 31, 2017) [hereinafter Benson II]; Evenstad, 994 F.Supp.2d at 1000; see also Banks v. Ludeman, No. 08-cv-5792 (MJD/JJK), 2010 WL 4822892, at *16 (D. Minn. Oct. 4, 2010) (applying three-prong test for prison retaliatory discipline claim to retaliation claim brought by MSOP client), adopting report and recommendation, 2010 WL 4822888 (D. Minn. Nov. 22, 2010).

         “The retaliatory conduct itself need not be a constitutional violation; the violation is acting in retaliation for the exercise of a constitutionally protected right.” Spencer, 738 F.3d at 911 (quotation omitted). Thus, “[i]n order to be actionable, a defendant's conduct need not be egregious; petty harassment and ridicule, for example, may suffice.” Evenstad, 994 F.Supp.2d at 1001. Defendants assert Plaintiff has failed to plead a claim of First Amendment retaliation because he not alleged sufficient facts linking the alleged acts to the ID Lawsuit or some other retaliatory motive and some of the conduct complained of “would not have prevented a person of ‘ordinary firmness' from engaging in protected activity.” (Defs.' Mem. in Supp. at 11.)

         McGowan, Kosloski, & Gordon

         Plaintiff alleges that, on June 26, 2016, McGowan wrote a false report that he was in another client's cell and called McGowan derogatory names. (Compl. ¶¶ 13-14.) Kosloski approved the report. (Compl. ¶ 13.) McGowan and Kosloski are both named as defendants in the ID Lawsuit. Plaintiff alleges that the false report came within “moments” of McGowan being served with the ID Lawsuit; McGowan's assignment in Plaintiff's unit that day was “unusual” and “particularly peculiar” as McGowan “was not typically assigned” to his unit; and her “animus and disdain” of Plaintiff is “known” and “has been well documented.” (Compl. ¶ 13.) Plaintiff alleges that “McGowan was taunting [him] with statements about the [ID Lawsuit] and stated ‘who the hell do you think you are, we'll make your life hell.'” (Compl. ¶ 13.) Plaintiff alleges that, despite efforts of other MSOP staff, “McGowan continued to glare at [him], shaking with rage trying to goad [him] into a physical altercation.” (Compl. ¶ 13.)

         In another incident, Plaintiff alleges that, on July 14, 2016, Gordon prevented him from going to a scheduled therapy class, stating that Gordon “pointed at [him] and menacingly stated ‘got you again.'” (Compl. ¶ 18.)

         The following day, Gordon and Kosloski were involved in a lengthy “unwarranted and unsanctioned” search of Plaintiff's room. (Compl. ¶ 19.) During the room search, which lasted approximately six hours, shampoo and toothpaste were emptied “into plastic bags, ” dirty clothes were mixed with clean cloths, and Plaintiff's “legalese [sic] and correspondence” were combined. (Compl. ¶ 19.) Afterwards, Kosloski told Plaintiff “he could return to his [room] (laughing).” (Compl. ¶ 19.) “Gordon told Plaintiff he knew what he could do to make it stop, and said, ‘happy birthday.'” (Compl. ¶ 19.)

         On November 18, “Gordon falsely reported that . . . Plaintiff was trying to incite a riot” by yelling, in derogatory terms, that another client was assaulting a guard. (Compl. ¶ 23.) According to Plaintiff, “[t]his is a deliberate lie and mischaracterization of the dialog” that occurred. (Compl. ¶ 23.) Plaintiff states that a fight had broken out in another unit and Plaintiff witnessed another client “assaulting a guard” during the fight. (Compl. ¶ 23.) As Plaintiff passed other clients in the hall, they “angrily assum[ed]” that he was responsible for them having to wait in the hallway until the situation resolved. (Compl. ¶ 23.) Other clients “were shouting at . . . Plaintiff and Plaintiff yell back, ‘it isn't me, [name redacted] is fighting with the guards.'” (Compl. ¶ 16.) Gordon “seized on the opportunity to claim this was inciting a riot, ” and misreported what Plaintiff actually said. (Compl. ¶ 23.) Kosloski approved the report, and Moser “approved the determination” leading to “more special punishments.” (Compl. ¶ 23.)

         Plaintiff also alleges that “Kosloski has hinted (talking in the third person) that by provoking . . . [him] into criminal behavior he will be charged ‘like past clients' and sent to prison, which will minimize or make ‘all the problems (complaint) he creates will go away.'” (Compl. ¶ 21.) In addition, Kosloski was involved in three allegedly unjustified behavioral reports written against Plaintiff for using the shower, microwave, and unit computer, things other MSOP clients are allowed to do. (Compl. ¶¶ 39, 40, 41.)

         The Court concludes that Plaintiff has plausibly alleged First Amendment retaliation claims against McGowan and Kosloski. McGowan and Kosloski were both named in the ID Lawsuit. It can be reasonably inferred from their comments that they singled Plaintiff out because he filed the ID Lawsuit, and that their conduct was motivated at least in part because of Plaintiff's exercise of his First Amendment rights. See Peterson v. Kopp, 754 F.3d 594, 602 (8th Cir. 2014) (“[T]he plaintiff must show he was singled out because of his exercise of constitutional rights.” (quotation omitted)); Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004) (statement by state psychiatrist to civilly committed individual that “he would not be recommended for step-level increases if he kept filing baseless grievances” could permit inference that state psychiatrist denied privileges in retaliation for filing grievances); see also McCauley v. Dormire, 245 Fed.Appx. 565, 567 (8th Cir. 2007) (per curiam) (inmate stated retaliatory-discipline claim based on “allegations that defendants made statements suggesting a retaliatory motive, that they knew he had not committed the rule infraction, and that the [disciplinary] conviction was not supported by ‘some evidence'”).

         The Court recognizes that civilly committed individuals like Plaintiff are not prisoners. In analyzing claims for First Amendment retaliation brought by civilly committed individuals at MSOP, however, the Eighth Circuit has looked to the prison context. See, e.g., Beaulieu, 690 F.3d at 1025; Senty-Haugen v. Goodno, 462 F.3d 876, 890 (8th Cir. 2006). In the prison context, the Eighth Circuit has held “a threat of retaliation is sufficient injury if made in retaliation for an inmate's use of prison grievance procedures.” Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994). The Eighth Circuit has similarly found that allegations of false disciplinary proceedings being initiated in response to prison grievances and complaints of mistreatment, threats to limit privileges, and harassment stated an actionable retaliation claim. Williams v. Silvey, 375 Fed.Appx. 648, 649-50 (8th Cir. 2010); see McCauley, 245 Fed.Appx. at 567; Evenstad, 994 F.Supp.2d at 1001 (adverse actions included “fabricating infractions to justify putting [MSOP client] in [protective isolation]”). Denial of privileges may also constitute an adverse action showing retaliation. Spencer, 738 F.3d at 911 (citing Revels, 382 F.3d at 876). McGowan and Kosloski were each involved in behavioral reports written against Plaintiff that were either false or for behavior other MSOP clients were allowed to engage in, such as taking a shower or using the microwave. As a result of these reports, Plaintiff suffered disciplinary consequences. Taking Plaintiff's allegations as true, Plaintiff has stated an actionable retaliation claim against McGowan and Kosloski.

         The Court concludes, however, that Plaintiff has not stated a retaliation claim against Gordon. Gordon was not named in the ID Lawsuit. Plaintiff has not alleged facts from which it can reasonably be inferred that Gordon was somehow connected to the ID Lawsuit, or that his actions were motivated by its filing. See Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996) (per curiam); Daywitt, 2015 WL 4094199, at *6. And, while two of the incidents also involved Kosloski, Plaintiff has not alleged any facts that Kosloski incited Gordon to retaliate against Plaintiff for filing the ID Lawsuit. See Williams, 375 Fed.Appx. 648');">375 Fed.Appx. 648 at 649. A First Amendment retaliation claim requires a plaintiff to “show the official took the adverse action because the plaintiff engaged in the protected speech.” Revels, 382 F.3d at 876. Without some sort of factual context connecting Gordon to the ID Lawsuit, it is simply too speculative to attribute Gordon's statement that Plaintiff “knew what he could do to make it stop” to the ID Lawsuit and Plaintiff's exercise of his First Amendment rights. Plaintiff has failed to plead sufficient facts from which it can be reasonably inferred that any adverse action taken by Gordon was motivated at least in part by any protected activity as opposed to some other motive.

         Other Behavioral Reports

         Plaintiff identifies other instances in which allegedly unjustified behavioral reports were written against him for doing things other MSOP clients were allowed to do, such as using the gym (Compl. ¶¶ 15, 27); being in the yard (Compl. ¶ 16); using the sink and microwave (Compl. ¶¶ 28, 32, 40); having the door to his room open (Compl. ¶ 29); walking in the hallway (Compl. ¶ 30; see also Compl. ¶ 33); using the shower (Compl. ¶ 39); and using the unit computer (Compl. ¶ 41). Another behavioral report was written against Plaintiff stating “he would no longer be allowed to have breaks from punishment.” (Compl. ¶ 31.) Plaintiff alleges that these behavioral reports amounted to “special punishment.” (Compl. ¶¶ 15, 16, 28, 30; see Compl. ¶¶ 27, 29, 31, 32, 33, 39.)

         But, like Gordon, many of the defendants Plaintiff alleges were involved in these reports were not named in the ID Lawsuit, and Plaintiff has not alleged facts somehow connecting them with that lawsuit or showing that their actions were motivated by its filing. See Revels, 382 F.3d at 876; Daywitt, 2015 WL 4094199, at *6. In opposing Defendants' motion, Plaintiff contends that “[t]he point of the spear (the McGowan report) was trailed by numerous reports in which Defendants as a force started to enforce punishments on . . . [him] without any due process.” (Pl.'s Resp. at 9.) Plaintiff has not, however, pleaded facts from which it can be reasonably inferred that these defendants acted at the behest of McGowan or someone otherwise affected by the ID Lawsuit. See Williams, 375 Fed.Appx. 648');">375 Fed.Appx. 648 at 649. Plaintiff has failed to plead sufficient facts that any adverse action taken by these defendants was motivated at least in part by protected activity. Accordingly, Plaintiff has failed to state a retaliation claim against Fahland (Compl. ¶¶ 15, 16, 30, 31); Sayovitz (Compl. ¶¶ 15, 16, 23, 27, 29, 31, 32, 33, 39, 40, 41); Osborne (Compl. ¶¶ 15, 16); Moser (Compl. ¶¶ 15, 16, 23, 27, 29, 31, 32, 33, 39, 40, 41); Michelizzi (Compl. ¶ 16); Sadjak (Compl. ¶¶ 19); Vaineo (Compl. ¶¶ 23, 27, 29, 31, 32, 33, 39, 40, 41); Huhta (Compl. ¶ 27); Ninneman (Compl. ¶¶ 27, 28, 33); Shorter (Compl. ¶¶ 28, 32, 33, 39); Giersdorf (Compl. ¶¶ 29, 40, 41); Carey (Compl. ¶¶ 29, 32, 40, 41); and Rose (Compl. ¶ 39).

         Lastly, three of the defendants who were involved in these reports were also named in the ID Lawsuit: Randa (Compl. ¶ 15); Benoit (Compl. ¶¶ 15, 16, 23, 27, 29, 31, 32, 33); and Gresczyk (Compl. ¶¶ 30, 31). While the Court has been able to determine that Randa, Benoit, and Gresczyk were named in the ID Lawsuit by examining the complaint in that case, Plaintiff has pleaded no facts connecting Randa, Benoit, and Gresczyk to the ID Lawsuit like he did with McGowan. And, unlike McGowan and Kosloski who made comments either directly or indirectly referencing the ID Lawsuit during their interactions with Plaintiff, Plaintiff has not alleged facts from which it could be inferred that the actions of Randa, Benoit, and Gresczyk were motivated at least in part by the ID Lawsuit. See Revels, 382 F.3d at 876; Daywitt, 2015 WL 4094199, at *6. “Federal courts are not required to ‘assume facts that are not alleged just because an additional factual allegation would have formed a stronger complaint.'” Wickner v. Collelo, No. 11-cv-3448 (DWF/JJK), 2011 WL 6960975, at *1 (D. Minn. Dec. 14, 2011) (quoting Stone, 364 F.3d at 915), adopting report and recommendation, 2012 WL 32940 (D. Minn. Jan. 6, 2012). Nor has Plaintiff pleaded facts from which it can be reasonably inferred that Randa, Benoit, and Gresczyk acted at the behest of McGowan or someone otherwise affected by the ID Lawsuit. See Williams, 375 Fed.Appx. 648 at 649. Without any facts suggesting the adverse actions taken by Randa, Benoit, and Gresczyk were motivated at least in part by protected activity, Plaintiff has likewise failed to state a retaliation against them.[4]

         Qualified Immunity

         Having concluded that Plaintiff has stated a claim for First Amendment retaliation against McGowan and Kosloski, the Court turns to Defendants' qualified-immunity argument. “In claims brought under 42 U.S.C. § 1983, ‘qualified immunity shields government officials from liability and the burdens of litigation unless their conduct violated a clearly established constitutional or statutory right of which a reasonable official would have known.'” Schoettle v. Jefferson Cty., 788 F.3d 855, 858 (8th Cir. 2015) (quoting Carpenter v. Gage, 686 F.3d 644, 648 (8th Cir. 2012)); accord Keil v. Triveline, 661 F.3d 981, 985 (8th Cir. 2011) (“Qualified immunity shields public officials from civil lawsuits when their conduct does not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.'” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))). In determining whether a government official is entitled to qualified immunity, courts consider “(1) whether the facts alleged, construed in the light most favorable to [the plaintiff], establish a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the alleged violation, such that a reasonable official would have known that her actions were unlawful.” Keil, 661 F.3d at 985 (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). “If the answer to either question is no, then the [officials] are entitled to qualified immunity.” Id. (citing Pearson, 555 U.S. at 236).

         “A Rule 12(b)(6) dismissal based on qualified immunity is appropriate when the immunity is established on the face of the complaint.” Dornheim v. Sholes, 430 F.3d 919, 926 (8th Cir. 2005) (quotation omitted); accord Stanley v. Finnegan, 899 F.3d 623, 627 (8th Cir. 2018); Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996). “A court considers whether the plaintiff has stated a plausible claim for violation of a constitutional or statutory right and whether the right was clearly established at the time of the alleged infraction.” Hager v. Ark. Dep't of Health, 735 F.3d 1009, 1013 (8th Cir. 2013); see Hafley, 90 F.3d at 266 (public officials “are entitled to qualified immunity unless [the plaintiff] has alleged the violation of a constitutional right that was clearly established at the time of the alleged violation”). “In determining whether the legal right at issue is clearly established, [the Eighth ...


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