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Green v. Lake

United States District Court, D. Minnesota

March 25, 2019

Anthony C. Green, Plaintiff,
v.
Kelly Lake, Carlton County Sheriff; Kevin Moser, MSOP Facility Director; Steven Sayovitz, MSOP A-Team Supervisor; Ann Zimmerman, MSOP Administrator; Nicole Marvel, MSOP A-Team Supervisor; Greg Swenson, Security Counselor; Amanda Schaller, Security Counselor; Elizabeth Barbo, MSOP-Former Assistant Clinical Director; Anthony Bastien, Carlton County Deputy Sheriff; and Jesse Peterson, Carlton County Deputy Sheriff; in their individual and official capacities Defendants.

          Anthony C. Green, pro se.

          Susan M. Tindal, Esq., Iverson Reuvers Condon, Bloomington, MN, on behalf of Defendants Kelly Lake, Jesse Peterson, and Anthony Bastien.

          James H. Clark, III, Esq., Assistant Minnesota Attorney General, Minnesota Attorney General's Office, St. Paul, MN, on behalf of Defendants Kevin Moser, Steven Sayovitz, Ann Zimmerman, Nicole Marvel, and Greg Swenson.

          Daniel P. Kurtz, Esq., League of Minnesota Cities, St. Paul, MN, on behalf of Defendant Bryce Bogenholm.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY, U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This matter is before the undersigned United States District Judge for a ruling on Defendants Kelly Lake, Jesse Peterson, and Anthony Bastien's (the "Carlton County Defendants") Objection [Docket No. 95] to Magistrate Judge Steven E. Rau's January 30, 2019 Report and Recommendation [Docket No. 94] ("R&R"). Also before the Court is Plaintiff Anthony C. Green's ("Green") Motion to Accept Late Submission [Docket No. 96] and Green's Objection [Docket No. 97] to the R&R.

         In the R&R, Judge Rau recommends granting the two motions to dismiss filed by Defendants Kevin Moser, Steven Sayovitz, Ann Zimmerman, Nicole Marvel, and Greg Swanson (collectively, the "MSOP Defendants") in their official and individual capacities [Docket Nos. 22, 53]; granting the motion to dismiss filed by Defendant Bryce Bogenholm[1] [Docket No. 35]; and granting the motion to dismiss or for summary judgment filed by the Carlton County Defendants [Docket No. 66]. The R&R also recommends dismissing Green's Amended Complaint [Docket No. 14] with prejudice. For the reasons stated below, the Carlton County Defendants' Objection is sustained, Green's Motion to Accept Late Submission is granted, and Green's Objection is overruled.

         II. BACKGROUND

         The background is set forth in the R&R and is incorporated by reference. Briefly, Green is a civilly committed detainee at the Minnesota Sex Offender Program in Moose Lake, Minnesota ("MSOP"). Am. Compl. [Docket No. 14] ¶ 7. The MSOP Defendants are all MSOP employees. Id. ¶ 8. The Carlton County Defendants are employed with the Carlton County Sheriff s Office. Id. Defendant Bryce Bogenholm is the Moose Lake Police Chief. Id.

         Green filed this 42 U.S.C. § 1983 lawsuit on April 11, 2014. Green alleges that Defendants violated his rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. The allegations as taken from Green's Amended Complaint are as follows.

         On September 28, 2010, the MSOP Defendants handcuffed Green and secured him in an observation cell in MSOP's High Security Area ("HSA"). Am. Compl. ¶ 11. Pursuant to MSOP policy, Green was required to submit to an unclothed visual body strip search ("UVBSS") upon being placed in HSA. Id., ¶ 43. If a detainee does not consent to the UVBSS, MSOP's policy requires staff to ask the detainee every 30 minutes for consent to the search. Id. ¶ 44. If the detainee still refuses to consent after four hours, MSOP staff may obtain authorization to perform a non-consenting search that includes cutting the detainee's clothing off with a scissors. Id. Green refused to consent to a UVBSS. Id. ¶ 11. After four hours, MSOP staff cut and removed Green's clothing to allow a search for contraband. Id.

         On March 24, 2011, MSOP employees attempted to prevent Green from entering the MSOP dining room. Id. ¶ 18. MSOP Defendant Greg Swenson ("Swenson") attacked Green from behind and shoved him from behind into another MSOP staff member. Li ¶¶ 18-19. During the altercation, MSOP Defendant Nicole Marvel ("Marvel") twisted Green's handcuffs while trying to remove his shoes and "Do Rag" and "did damage to [Green's] wrists." Id. ¶23. The same day as the March 24 altercation, Green was again placed in HSA. Id. ¶ 12. This time, he consented to the UVBSS search. Id.

         On June 13, 2012, Carlton County Defendants Anthony Bastien ("Deputy Bastien") and Jesse Peterson ("Deputy Peterson") served Green with an arrest warrant at the MSOP facility. Id. ¶ 26. The deputies were escorting Green in handcuffs from the facility when MSOP Defendant Steve Sayovitz ("Sayovitz") informed MSOP Defendant Elizabeth Barbo ("Barbo") that Sayovitz intended to be granted approval for a UVBSS of Green. Li ¶¶ 26, 28. Deputy Bastien told Sayovitz that he did not agree with the UVBSS being conducted while Green was in Carlton County's custody and that the UVBSS should have been performed prior to the deputies' arrival. Id. ¶¶ 29, 32, 34. While Deputy Bastien was advising his supervisor of his concerns, Deputy Peterson removed the handcuffs from Green. Id. ¶¶ 32, 34. MSOP Defendants then placed MSOP's handcuffs on Green and, without Deputy Bastien's knowledge, conducted a UVBSS on Green in front of a female staff member. Id. ¶ 27, 32.

         In addition to these incidents, Green alleges that MSOP's placement policy authorized MSOP staff to place Green in HSA for extended periods exceeding 24 hours without due process protections. Id. ¶ 13.

         Green asserts a claim against the MSOP Defendants for violation of his procedural and substantive due process rights under the 14th Amendment (Count I), a claim against all Defendants for illegal search and seizure in violation of the Fourth Amendment (Count II), and a claim against all Defendants for excessive force in violation of the Fourth Amendment (Count III). Green also alleges that MSOP's client search and protective isolation policies are unconstitutional. Am. Compl. ¶¶ 50, 57.

         The R&R recommends dismissing all of Green's claims for failure to state a plausible claim for relief. R&R at 12-21.

         III. DISCUSSION

         A. Standard of Review

         In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. L.R. 72.2(b). A district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

         B. Carlton County ...


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