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Kunshier v. Boder

United States District Court, D. Minnesota

May 10, 2019

Robert A. Kunshier, Plaintiff,
Nicole Boder, Health Services Administrator, Moose Lake site of the Minnesota Sex Offender Program and Kari Ovsak, Nurse Practitioner, Health Services Department, at Moose Lake site of the Minnesota Sex Offender Program, Defendants.

          Robert A. Kunshier, (pro se Plaintiff).

          James H. Clark III, Assistant Attorney General, Office of the Minnesota Attorney General, (for Defendants).


          Tony N. Leung United States Magistrate Judge.

         This matter is before the Court, United States Magistrate Judge Tony N. Leung, on Plaintiff's Motion Requesting Preliminary Injunction (ECF No. 6) and Defendants' Motion to Dismiss Plaintiff's Complaint (ECF No. 13). These motions have been referred to the undersigned magistrate judge for a report and recommendation to the Honorable Eric C. Tostrud, United States District Judge for the District of Minnesota, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1. Based on all the files, records, and proceedings herein, and for the reasons set forth below, this Court recommends that Plaintiff's motion be DENIED and Defendants' motion be GRANTED.


         Plaintiff Robert A. Kunshier is civilly committed to the Minnesota Sex Offender Program (“MSOP”). On December 3, 2018, he filed a lawsuit against Defendants Nicole Boder and Kari Ovsak, alleging that their medical treatment of him violated his constitutional rights. (ECF No. 1). The same day, he also filed a Motion Requesting Preliminary Injunction, seeking a court order requiring Defendants to start him on pain medication and to provide him the use of certain medical equipment. (ECF No. 6).

         Kunshier alleges that he has complained of foot pain to Defendants for the previous year. (ECF No. 1, p. 11). Because of his pain, he requested that Defendants provide him a wheelchair and walker. (ECF No. 1, p. 11). He alleges that Defendants denied these requests, telling him that his insurance did not cover this equipment, thus requiring him to pay for it out of his own pocket. (ECF No. 1, p. 11). Because Kunshier's monthly income is approximately $97.00, he is unable to afford either a walker or wheelchair. (ECF No. 1, p. 11).

         Kunshier met with a physician regarding his foot pain, who told him to wear a “medical device” to protect his toe. (ECF No. 1, p. 13). Defendants have not provided this device to Kunshier, nor given him any pain medication beyond a three-day supply of ibuprofen. (ECF No. 1, p. 13). Kunshier further contends that Ovsak has not discussed any pain management strategies with him. Because of his foot pain, Kunshier is unable to stand without being in significant pain. (ECF No. 1, p. 11). He is also unable to exercise. (ECF No. 1, p. 14).

         Kunshier alleges that Defendants have demonstrated a deliberate indifference to his medical needs. He seeks compensatory and punitive damages. (ECF No. 1, p. 20-23). Defendants have moved to dismiss his lawsuit under Federal Rules of Civil Procedure 12(b)(1) and (12)(b)(6). (ECF No. 13).


         A. Legal Standard

         When considering a Rule 12(b)(1) motion, courts “distinguish between a ‘facial attack' and a ‘factual attack' on jurisdiction.” Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016) (quotation omitted). “In a facial attack, the court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6).” Id. (citation and internal quotations omitted). “In a factual attack, the court considers matters outside the pleadings, and the non-moving party does not have the benefit of 12(b)(6) safeguards.” Id.

         In deciding a Rule 12(b)(6) motion, a court accepts as true all well-pleaded factual allegations and then determines “whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In doing so, the court must draw reasonable inferences in the plaintiff's favor. Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015) (citation omitted). “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.” Sletten & Brettin Orthodontics v. Cont'l Cas. Co., 782 F.3d 931, 934 (8th Cir. 2015) (citation and internal quotations omitted). Facial plausibility of a claim exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atlantic Corp v. Twombly, 550 U.S. 544, 556). Although a sufficient complaint need not be detailed, it must contain “[f]actual allegations . . . enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted). Complaints are insufficient if they contain “naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557) (internal quotation marks omitted).

         In assessing a complaint by a pro se plaintiff, the court applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quotation and citation omitted). “[I]f the essence of an allegation is discernible, ” then the court, in applying a liberal construction to pro se complaints, “should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework.” Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)). Despite the liberal construal of such complaints, the pro se plaintiff “still must allege sufficient facts to support the claims advanced.” Stringer v. St. James R-1 Sch. Dist., 446 F.3d 799, 802 (8th Cir. 2006) (quoting Stone, 364 ...

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