United States District Court, D. Minnesota
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.
A. Kunshier, (pro se Plaintiff).
H. Clark III, Assistant Attorney General, Office of the
Minnesota Attorney General, (for Defendants).
N. Leung United States Magistrate Judge.
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
PROCEDURAL AND FACTUAL BACKGROUND
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).
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).
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).
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).
MOTION TO DISMISS
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.
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).
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 ...