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Schlumpberger v. Osborne

United States District Court, D. Minnesota

February 26, 2019

Allyn Lee Schlumpberger, Plaintiff,
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, pro se.

          Matthew Hart, Office of the Minnesota Attorney General, Human Services Division, for Defendants.



         This matter is before the Court on the Report and Recommendation (“R&R” [Doc. No. 35]) of Magistrate Judge Tony N. Leung dated January 25, 2019, recommending that Defendants' Motion to Dismiss Plaintiff's Complaint [Doc. No. 18] be granted, and that this action be dismissed without prejudice. Plaintiff Allyn Lee Schlumpberger (“Schlumpberger” or “Plaintiff”) filed objections (“Objections”) [Doc. No. 37-5][1] to the R&R. For the reasons set forth below, the Court overrules Plaintiff's Objections and adopts the R&R.

         I. BACKGROUND

         The factual and procedural background of this matter is detailed in the R&R and is incorporated herein by reference. In brief, Plaintiff has been involuntarily committed to the State of Minnesota's Department of Human Services and the Minnesota Sex Offender Program (“MSOP”). He currently resides in the MSOP facility in Moose Lake, Minnesota. (See generally Compl.) Defendants are MSOP employees. (Compl. ¶¶ 2, 7(b)-(f) [Doc. No. 1].)

         Schlumpberger brings this action pursuant to 42 U.S.C. § 1983, alleging that his constitutional rights were violated when he was placed in the MSOP's High Security Area (“HSA”)/Protective Isolation for refusing to move to a newly assigned room. (See Id. ¶ 26.) The magistrate judge construed Plaintiff's Complaint to allege substantive and procedural due process claims under the Fourteenth Amendment and derivative search and seizure claims under the Fourth Amendment. (R&R at 5.)

         In their Motion to Dismiss, Defendants rely on Federal Rule of Civil Procedure 12(b)(6), and argue that Plaintiff's allegations fail to state a claim on which relief can be granted. In the R&R, Magistrate Judge Leung recommended that Defendants' motion be granted on the following bases: (1) because Defendant Basaraba, the former MSOP Security Manager, died prior to the commencement of this action, all claims against him should be dismissed, (id. at 6-7); (2) all claims against Defendants in their official capacities for which Plaintiff seeks monetary damages are barred by the Eleventh Amendment, (id. at 7-9); (3) because Plaintiff fails to plead the involvement of Defendant Kevin Moser, all claims against him should be dismissed, (id. at 11-12); (4) Plaintiff's Fourteenth Amendment procedural due process claim fails because he has not alleged facts showing that his placement in the HSA/Protective Isolation constituted punishment or that he was denied notice and an opportunity to be heard, (id. at 12-19); (5) Plaintiff's substantive due process claim also fails as he does not allege conscious-shocking conduct, (id. at 19-25); (6) his Fourth Amendment unreasonable search claim fails because Plaintiff does not allege that he was subject to a search, (id. at 25-26); and (7) Plaintiff's unreasonable seizure claim, construed as a claim for excessive force based on the use of “restraints, ” fails to allege any facts from which one could plausibly infer the application of excessive force. (Id. at 26-28.) Finding that all of Plaintiff's claims fail, the magistrate judge recommended the dismissal of this action without prejudice. (Id. at 29.)

         Schlumpberger filed his objections to the R&R in a timely manner. (See Objs.) First, he disputes the dismissal of all claims against Defendant Basaraba, under the theory that this Defendant's death mandates the automatic substitution of his successor as a party in this action. (Id. at 2-3). Second, Plaintiff does not disagree that the Eleventh Amendment bars monetary damages against government officials, but he seeks to amend his complaint presumably to bring claims for prospective relief, which the Eleventh Amendment allows. (Id. at 3-4).

         Finally, Plaintiff objects to the dismissal of his Complaint for failing to state a § 1983 claim for violations of the Fourteenth and Fourth Amendments. (Id. at 6-7). He argues he has a protected liberty interest related to the MSOP's policies about restraining patients and placing them in HSA/Protective Isolation. (Id. at 9.) Regarding the Fourth Amendment, he asserts that his allegations regarding strip searches and detention are sufficiently plausible to overcome a Rule 12(b)(6) motion. (Id. at 25-27).


         The district court must conduct a de novo review of a magistrate judge's report and recommendation on dispositive motions to which specific objections have been made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); D. Minn. L.R. 72.2(b). Defendants' Motion to Dismiss under 12(b)(6) is dispositive and must be reviewed under this standard. D. Minn. L.R. 7(c)(6)(B). “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.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A complaint states a plausible claim for relief if its ‘factual content ... allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). Success need not be probable to survive a motion to dismiss, but there must be more than the “sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. However, “legal conclusions or ‘formulaic recitation of the elements of a cause of action' . . . may properly be set aside.” Braden, 588 F.3d at 594 (quoting Iqbal, 556 U.S. at 678).

         When considering a 12(b)(6) motion, the district court accepts as true all factual allegations in the complaint and grants all reasonable inferences in favor of the nonmoving party. Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009). “[A] pro se complaint must be liberally construed, and ‘pro se litigants are held to a lesser pleading standard than other parties.'” Gertsner v. Sebig, LLC, 386 Fed.Appx. 573, 575 (8th Cir. 2010) (quoting Whitson v. Stone Cty. Jail, 602 F.3d 920, 922 n.1 (8th Cir. 2010)). Nevertheless, pro se complaints must still contain sufficient facts to support the claims alleged. Id.

         A. Objection: Substitution for Defendant Basaraba

         Schlumpberger argues that, contrary to the magistrate judge's recommendation, he should be permitted to substitute a defendant for Defendant Basaraba. (Objs. at 2-3.) (Compl. ¶ 7(e).) He asserts that the viability of his claims against persons in their official capacities “is unaffected by the fact that a different person may now hold the relevant office.” (Objs. at 2.) Rather, he argues, the replacement of a named official “results in the automatic substitution ...

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