United States District Court, D. Minnesota
Michael S. Sayen, Plaintiff,
Gary R. Schurrer, John C. Hoffman, and Tad V. Jude, all in their individual capacities, Defendants.
Michael S. Sayen, pro se.
Kathryn I. Landrum, Minnesota Attorney General's Office,
for Gary R. Schurrer, John C. Hoffman, and Tad V. Jude.
REPORT AND RECOMMENDATION
BOWBEER, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants Gary R. Schurrer,
John C. Hoffman, and Tad V. Jude's Motion to Dismiss
[Doc. No. 9]; and Plaintiff Michael S. Sayen's Motion to
Suspend Criminal Cases of Harassment Restraining Order
Associated with Case Until Completion of Federal Lawsuit
[Doc. No. 6]. The motions were referred to this Court for
report and recommendation by the Honorable Nancy E. Brasel in
an Order of Reference dated January 17, 2019 [Doc. No. 16].
Michael S. Sayen is suing state court judges Gary R.
Schurrer, John C. Hoffman, and Thaddeaus V. Jude in their
individual capacities, challenging several orders entered in
state-court marital dissolution and child custody
proceedings. (Compl. ¶¶ 7-10 [Doc. No. 1].) On July
27, 2017, Judge Schurrer entered Findings of Fact,
Conclusions of Law, Order for Judgment, and Judgment and
Decree (“Judgment and Decree”) in Washington
County District Court, dissolving Plaintiff's marriage,
awarding his ex-wife sole legal and physical custody of their
child, and setting the amount and conditions of visitation
and child support. (See Landrum Aff. Ex. B [Doc. No.
13-1].)On October 29, 2018, Judge Jude granted a
petition for an ex parte harassment restraining order
(“HRO”) filed by Plaintiff's ex-wife.
(Landrum Aff. Ex. G.) On November 15, 2018, after a hearing
on the petition, Judge Hoffman issued an HRO effective until
November 15, 2020. (Landrum Aff. Ex. H.) Plaintiff was
charged with violating the HRO on December 24, 2018 (Landrum
Aff. Ex. J), and a Criminal Domestic Abuse No. Contact Order
was issued forbidding Plaintiff from being outside his
vehicle within 100 yards of his ex-wife's residence
(Landrum Aff. Ex. K).
action, Plaintiff brings claims pursuant to the First and
Fourteenth Amendments, via 42 U.S.C. § 1983; a claim
challenging the constitutionality of Minn. Stat. §
518.06, Minnesota's dissolution of marriage statute; and
a disability discrimination claim under 42 U.S.C. §
12101. (Compl. ¶¶ 4, 7.) Plaintiff seeks
declaratory relief, inter alia, rendering Minn.
Stat. § 518.06 unconstitutional and vacating the
Judgment and Decree. (Compl. Req. Relief.) He also
“seeks injunctive relief to prohibit state judges from
operating under color of law, ” as well as $300, 000 in
damages from Judge Schurrer. (Id.) Plaintiff
attached an exhibit to his Complaint in which he expounds on
his claims. (See Compl. Ex. 1 [Doc. No. 1-1].)
January 16, 2019, Plaintiff filed a motion to stay the state
criminal proceeding brought against him for allegedly
violating the HRO. (Pl.'s Mot. Suspend [Doc. No. 6].) On
January 17, 2019, Defendants filed a motion to dismiss for
lack of subject-matter jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1) and for failure to state a claim
pursuant to Rule 12(b)(6). (Defs.' Mot. Dismiss [Doc. No.
9].) Defendants also opposed Plaintiff's motion to stay
the state criminal proceeding. (Defs.' Mem. Supp. Mot.
Dismiss and Opp'n Mot. Suspend at 1 [Doc. No. 12].)
Plaintiff filed a memorandum in opposition to the motion to
dismiss [Doc. No. 21], but Plaintiff did not attend the
motion hearing on March 4, 2019 (see Ct. Mins. [Doc.
Rule of Civil Procedure 12(b)(1) permits a party to move to
dismiss a complaint for lack of subject matter jurisdiction.
A party contesting subject matter jurisdiction may mount
either a facial challenge or a factual challenge to a
court's jurisdiction. See Osborn v. United
States, 918 F.2d 724, 729-30 & n.6 (8th Cir. 1990).
On a facial attack, the court limits its consideration to the
allegations of the complaint. Id. at 729 & n.6.
On a factual attack, the court may consider matters outside
the pleadings without converting the motion to one for
summary judgment. Id. Here, Defendants mount a
facial challenge to the Court's subject matter
motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6), the Court “must take the
well-pleaded allegations of the complaint as true, and
construe the complaint, and all reasonable inferences arising
therefrom, most favorably to the pleader.” Morton
v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). “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 claim is facially plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. A court has
the duty to construe liberally a pro se party's
pleadings. Estelle v. Gamble, 429 U.S. 97, 106
a court may not consider matters outside the pleadings in
assessing the sufficiency of a complaint under the Rule
12(b)(6) standard. Porous Media Corp. v. Pall Corp.,
186 F.3d 1077, 1079 (8th Cir. 1999) (citations omitted). A
court may make exceptions to this rule for matters of public
record, materials “necessarily embraced by” the
complaint, and exhibits submitted with the complaint.
Id. (citations omitted).