United States District Court, D. Minnesota
Anthony C. Green, Plaintiff,
Kelly Lake, Kevin Moser, Steven Sayovitz, Ann Zimmerman, Nicole Marvel, Greg Swenson, Elizabeth Barbo, Bryce Bogenhol, Anthony Bastien, Jesse Peterson, Jesse Berglund, Amanda Shaller, in their individual and official capacities Defendants.
Anthony C. Green, pro se
M. Tindal, Iverson Reuvers Condon (for Defendants Kelly Lake,
Anthony Bastien, and Jesse Peterson), James H. Clark III,
Minnesota Attorney General's Office (for Defendants Kevin
Moser, Steven Sayovitz, Ann Zimmerman, Nicole Marvel, and
Greg Swenson), and Daniel P. Kurtz, League of Minnesota
Cities (for Defendant Bryce Bogenhol).
REPORT AND RECOMMENDATION
E. RAU, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants' motions to
dismiss Plaintiffs' Amended Complaint. (ECF Nos. 22, 35,
53, 65). This matter was referred for the resolution of
pretrial matters pursuant to 28 U.S.C. § 636 and
District of Minnesota Local Rule 72.2. For the reasons stated
below, this Court recommends Defendants' motions be
granted and this matter be dismissed with prejudice.
Anthony C. Green is civilly committed to the Minnesota Sex
Offender Program (“MSOP”) in Moose Lake,
Minnesota. He initiated this lawsuit on April 11, 2014
asserting various constitutional claims against numerous
defendants. (ECF No. 1). This case was then stayed pending
resolution of a motion for class certification by individuals
civilly committed to MSOP. (ECF No. 5). Upon court order,
Green amended his complaint on July 8, 2016. (ECF Nos. 13,
14). Green's amended complaint asserted the same claims,
added further supporting facts, and removed some defendants.
(Am. Compl., ECF No. 14). The stay was lifted on April 14,
2016 and Defendants Bogenhol, Bastien, Lake Peterson, Moser,
Linkert, Marvel, Swenson, and Sayowitz filed motions to
dismiss. (ECF Nos. 12, 13, 22, 35, 53, 66). The case was
stayed again on June 30, 2017 because it was deemed
sufficiently related to Karsjens, et al. v. Piper, et
al., No. 11-cv-3659 (DWF/TNL). (ECF No. 79). The new
stay was lifted on October 22, 2018. (ECF No. 86). The Court
permitted the parties to file supplemental briefing
addressing any changes in law that may affect the Court's
analysis of the already-submitted motions to dismiss. (ECF
No. 87). The parties submitted their supplemental briefs and
the motions are ripe for determination. (ECF Nos. 89, 90, 91,
Unreasonable Search and Seizure
claims he was subjected to illegal searches and seizures on
multiple occasions at MSOP. On September 28, 2010, Green
claims he was forcibly subjected to an unclothed visual body
strip search (“UVBSS”) in an observation cell for
contraband, which was never found. (Am. Compl., at 5). He
claims another UVBSS was performed again on March 24, 2011 by
MSOP officers in full riot gear. (Am. Compl., at 5). Green
alleges that unidentified MSOP employees “allowed
A-Team members and unit staff to attack Plaintiff without
cause or provocation” and that he was thrown to the
ground and choked by an MSOP employee. (Am. Compl., at 8).
Green claims he refused the UVBSS during the first incident
and had his clothes forcibly cut off, and claims he disagreed
with the UVBSS but complied in the second incident. (Am.
Compl., at 5).
13, 2012, Green claims MSOP employees again forced an UVBSS
on him while the Carlton County Sheriff effected Green's
arrest. (Am. Compl., at 10). He claims this search,
“humiliate[ed] him in the presence of female
staff.” (Am. Compl., at 11). Green states MSOP
employees “stormed into the visiting room in full riot
gear and attacked plaintiff from behind” while he was
handcuffed. (Am. Compl., at 12). Green claims Defendant
Barbo, an MSOP Assistant Director, “had no reasonable
suspicion or justification to approve the unconstitutional
strip search” and that Green was not resisting, was not
fighting back, and not threatening” during the entire
incident. (Am. Compl., at 11- 12).
also claims his placement in Protective
Isolation/Administrative Restriction (“AR
status”) for extended periods of time over twenty-four
hours violates his Fourth Amendment rights.
complaint repeatedly states that MSOP policies were applied
to him unconstitutionally, failed to support a legitimate
government interest, and did not provide him proper
procedural protections. He identifies “Relevant MSOP
Policies” and summarizes the contents of these
policies. (See Am. Compl., at 16-19). Green explains
that an individual at MSOP may be placed on AR status in the
High Security Area (“HSA”), that an individual on
AR status has a right to appeal this status and her/his
conditions during that time, and under what circumstances AR
status must be discontinued. (Am. Compl., at 16-19). Green
also explains MSOP's policy on UVBSS: the manner in which
they should be performed, and the steps MSOP must follow if
an individual refuses an UVBSS. (Am. Compl., at 18). Finally,
Green explains that MSOP policy does not allow individuals to
call their attorneys. (Am. Compl., at 19).
Due Process and Excessive Force
argues MSOP staff placed him in HSA for extended periods of
time without due process protections. (Am. Compl., at 6). He
claims he should have had some form of hearing before being
placed in HSA because it violated his liberty interests. (Am.
Compl., at 7).
claims Defendant Marvel used excessive force when restraining
him during the March 24, 2010 incident. (Am. Compl., at 9).
Green states that “Marvel, while trying to remove
Plaintiff's Do Rag and shoes, twisted the handcuffs and
did damage to Plaintiff's wrists.” (Am. Compl., at
argues his Fourth and Fourteenth Amendment rights were
violated when he was denied access to his property while in
HSA. (Am. Compl., at 6). Green argues the following
restrictions while he was in HSA were illegal: only being
allowed one book at a time, being served meals in his cells,
not being allowed to participate in any off unit activities,
and being restricted to one thirty-minute period outside his
cell per day. (Am. Compl., at 6).
Specific Factual Allegations Against Defendants
Defendants Berglund, Moser, Zimmerman, Lake,
states Moser is the Director of MSOP, Zimmerman is the
Program Manager for MSOP, Lake is the Carlton County Sheriff,
and Bogenhol is the Moose Lake Police Chief. (Am. Compl., at
3-4). Aside from being listed as a party to the lawsuit, none
of these Defendants are mentioned anywhere in the complaint.
The Court does not address the complaint for claims against
these Defendants because Green does not allege they were
personally involved or responsible for any constitutional
states Sayovitz was an A-Team Supervisor at MSOP. (Am.
Compl., at 4). Green claims Sayovitz “informed
Assistant director [sic] Defendant Barbo about his intention
to be granted approval for the ‘unclothed visual body
search.'” (Am. Compl., at 11). Green also states
Defendant Sayovitz told him “Anthony you brought this
on yourself. We're going to remove the Police cuffs, and
place our cuffs on you.” (Am. Compl., at 32). Green
alleges Defendant Sayovitz “implemented, retained, and
carried out policies that violated the constitutional rights
of Plaintiff.” (Am. Compl., at 11).