United States District Court, D. Minnesota
Anthony C. Green, Plaintiff,
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.
M. Tindal, Esq., Iverson Reuvers Condon, Bloomington, MN, on
behalf of Defendants Kelly Lake, Jesse Peterson, and Anthony
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.
P. Kurtz, Esq., League of Minnesota Cities, St. Paul, MN, on
behalf of Defendant Bryce Bogenholm.
MEMORANDUM OPINION AND ORDER
MONTGOMERY, U.S. DISTRICT JUDGE
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, 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 [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.
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.
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.
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.
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.
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.
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.
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.
R&R recommends dismissing all of Green's claims for
failure to state a plausible claim for relief. R&R at
Standard of Review
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.
Carlton County ...