United States District Court, D. Minnesota
Lee Schlumpberger, pro se.
Matthew Hart, Office of the Minnesota Attorney General, Human
Services Division, for Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
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] to the R&R. For the reasons set forth
below, the Court overrules Plaintiff's Objections and
adopts the R&R.
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.
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.)
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.
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).
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).
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).
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
Objection: Substitution for Defendant Basaraba
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 ...