United States District Court, D. Minnesota
ORDER ACCEPTING REPORT AND RECOMMENDATION
C. Tostrud United States District Judge
matter is before the Court on objections [ECF No. 32-2] made
by Plaintiff David Earl Wattleton to the December 3, 2018
Report and Recommendation (“R&R”) [ECF No.
31] issued by Magistrate Judge Becky R. Thorson. Wattleton
has also since brought two motions to amend his complaint.
ECF Nos. 41, 45. Defendant responded to the objections and
filed briefs in opposition to each of the motions to amend.
ECF Nos. 40, 42, 46. A de novo review of the record pursuant
to 28 U.S.C. § 636(b)(1) and Local Rule 72.2(b)(3) will
be conducted and the motions to amend will be considered.
factual background of this case is set forth clearly in the
R&R. R&R at 1-6. Briefly, Wattleton commenced this
action pro se requesting the Court to “order the
Federal Medical Center Rochester
[“FMC-Rochester”] Business Office officials to
cease taking monies out of his account and refund any monies
collected.” App. at 1 [ECF No. 8]. Wattleton is
involuntarily committed pursuant to 18 U.S.C. § 4243(e).
Tweeten Decl. Ex. 2 [ECF No. 19-2]. By virtue of his
involuntary commitment, Wattleton should be exempt from the
prisoner filing fees set forth in 28 U.S.C. § 1915(b) of
the Prison Litigation Reform Act (“PLRA”).
See Am. Compl. at 1 [ECF No. 4]; see also
Pendleton v. Sanders, 565 Fed.Appx. 584, 584 (8th Cir.
2014) (per curiam) (“[A] civilly committed plaintiff
does not qualify as a ‘prisoner' under the
PLRA.” (citing Perkins v. Hedricks, 340 F.3d
582, 583 (8th Cir. 2003) (per curiam))). Nevertheless, the
Bureau of Prisons was ordered by two courts in two actions to
withdraw funds from Wattleton's account, purportedly in
accordance with the PLRA. Hodge Decl. ¶¶ 6-7, 11
[ECF No. 20]; id. Exs. C, F [ECF Nos. 20-3, 20-6].
Wattleton initiated this action on March 22, 2018, bringing a
constitutional claim pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), and seeking injunctive relief. Compl. at 1 [ECF
No. 1]. He then filed an amended complaint on April 23, 2018,
requesting the Court to remove the encumbrances and enjoin
FMC-Rochester from taking funds from his account for filing
fees. Am. Compl. at 2.
R&R, Magistrate Judge Thorson recommended dismissing
Wattleton's action in its entirety. She found that
Defendant is entitled to sovereign, or alternatively
qualified, immunity and recommended dismissal of the
Bivens claim as a result. R&R at 9-10, 13- 14.
Magistrate Judge Thorson construed Wattleton's request
for an injunction as a procedural-due-process claim and
recommended its dismissal because Wattleton has access to
adequate pre- and post-deprivation remedies such that the
collection of fees from his account did not constitute a
due-process violation. R&R at 10-13. Wattleton raised
four objections to these recommendations. See Objs.
In response, Defendant argued that Wattleton's objections
“are meritless and should be overruled.” Resp. at
1 [ECF No. 40].
objects to the conclusion in the R&R that his
Bivens claim must fail because he did not expressly
plead that he was bringing the claim against Defendant in her
personal capacity. Objs. at 1; see R&R at 9-10.
In both his original and amended complaints, Wattleton is
silent as to whether he is suing Defendant in her official or
personal capacity. See Compl.; Am. Compl. In his
objections, he argues that because a Bivens claim
can only involve the personal liability of a government
employee, his complaint should be construed as suing
Defendant in her personal capacity. Objs. at 1 (citing
Hill v. Holinka, No. 06-cv-4720 (PJS/JJG), 2008 WL
549928, at *1-3 (D. Minn. Feb. 27, 2008)).
plaintiff fails to state whether the suit brings charges
against officials in their individual or official capacities,
“the suit is construed as being against the defendants
in their official capacit[ies]” only. Johnson v.
Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir.
1999). “This rule is derived from Eighth Circuit cases
regarding the sovereign immunity of states under the Eleventh
Amendment.” Hill, 2008 WL 549928, at *1
(citing Larson v. Kempker, 414 F.3d 936, 939-40 (8th
Cir. 2005); Egerdahl v. Hibbing Comm. Coll., 72 F.3d
615, 619 (8th Cir. 1995)); see also Johnson, 172
F.3d at 535 (involving a 42 U.S.C. § 1983 claim against
state officials); Andrus ex rel. Andrus v. Arkansas,
197 F.3d 953, 955 (8th Cir. 1999) (involving a 42 U.S.C.
§ 1983 claim against the state of Arkansas, state police
department, and a state official); Artis v. Francis
Howell N. Band Booster Ass'n, Inc., 161
F.3d 1178, 1182 (8th Cir. 1998) (involving a 42 U.S.C. §
1983 claim against a state official). In cases regarding the
sovereign immunity of states under the Eleventh Amendment,
state officials may be sued in their official or individual
capacity, or both, such that this rule is necessary to give
proper notice to the defendants. See Johnson, 172
F.3d at 535. However, in cases involving Bivens
claims-civil actions alleging violations of the Federal
Constitution by officials of the federal government in their
individual capacity only-courts in this District have
construed suits that are silent to be against defendants in
their individual capacities. See, e.g., Meyer v.
Haeg, No. 15-cv-2564 (SRN/HB), 2016 WL 11491390, at *17
(D. Minn. June 27, 2016) (construing a pro se filing as a
motion to amend a complaint to bring “a Bivens
claim against the . . . official in his or her personal
capacity”), R&R adopted, 2016 WL 4153611
(D. Minn. Aug. 5, 2016), order amended on other grounds
and superseded, 2016 WL 8671831 (D. Minn. Dec. 9, 2016);
Carlson v. U.S. Dep't of Educ., No. 12-cv-645
(JNE/JJK), 2012 WL 4475300, at *9 (D. Minn. Aug. 9, 2012),
R&R adopted, 2012 WL 4328936 (D. Minn. Sept. 20,
2012) (“[A] Bivens claim does not involve any
official-capacity recovery. . . . Thus, ‘it makes no
sense to require a plaintiff to specify whether a
Bivens claim is proceeding against a government
employee in an official or individual capacity.'”
(quoting Hill, 2008 WL 549928 at *2)); Cooke v.
Stanton, No. 08-cv-1175 (MJD/JJK), 2009 WL 424537, at *4
& n.3 (D. Minn. Feb. 18, 2009); Hill v.
Anderson, No. 06-cv-4497 (PJS/JJG), 2008 WL 319898, at
*2-3 (D. Minn. Feb. 5, 2008). This intra-District trend,
coupled with the rule that courts should liberally construe
pro se filings, Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam), makes it appropriate to interpret
Wattleton's Bivens claim as against Defendant in
her individual capacity.
also argues that Defendant is not entitled to qualified
immunity with respect to the Bivens claim because
her “actions or inactions were influenced by a
discriminatory motive.” Objs. at 2. “Qualified
immunity protects government officials from liability for
civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of
which a reasonable person would have known.”
Mountain Pure, LLC v. Roberts, 814 F.3d 928, 932
(8th Cir. 2016) (citation omitted). The second prong requires
a showing that the “right was clearly established at
the time of the deprivation . . . [such] that a reasonable
official would understand that what [she] is doing violates
that right.” Id. (first two alterations in
original) (citation omitted). In conducting the qualified
immunity analysis, a court has discretion to decide which
prong to address first. Pearson v. Callahan, 555
U.S. 223, 236 (2009). Based on the second prong alone,
Magistrate Judge Thorson correctly states that “it was
not unreasonable for Defendant Hodge to consider her actions
lawful when she was facilitating the collection of fees as
directed by facially valid court orders.” R&R at
14. Hodge herself did not determine that Wattleton should pay
according to the PLRA in the two actions at issue nor would
she have the authority to make such a determination; instead,
the source documents for these withdrawals were facially
valid court orders. Hodge Decl. Ex. A at 87, 91 [ECF No.
20-1]; R&R at 12 (“The [Bureau of Prisons] is
simply complying with the orders [of the courts] by
collecting the fees pursuant to the provisions of the
objection also fails because he did not “plead
sufficient factual matter” to show that the conduct at
issue was based on a discriminatory motive. Ashcroft v.
Iqbal, 556 U.S. 662, 677 (2009). In fact, Wattleton did
not plead any facts alluding to discrimination, see
Compl. and Am. Compl., and he cannot assert that argument for
the first time at this stage of the litigation, see
Ridenour v. Boehringer Ingelheim Pharms., Inc., 679 F.3d
1062, 1067 (8th Cir. 2012) (collecting cases). As a result,
Magistrate Judge Thorson's recommendation that Defendant
is entitled to qualified immunity with respect to the
Bivens claim is accepted. See R&R at
further objects to the conclusion in the R&R that his
due-process claim fails to state a claim upon which relief
can be granted. Objs. at 2. He argues that the
post-deprivation remedy here is inadequate because it would
require him to file numerous suits, separately in each court
to which he is wrongfully indebted, requesting that the fee
encumbrances be vacated. Id. (citing Lathon v.
City of St. Louis, 242 F.3d 841, 844 (8th Cir. 2001)
(requiring a plaintiff to file four separate suits did not
constitute an adequate remedy)). After de novo review, this
Court has determined that Magistrate Judge Thorson's
analysis of and conclusions regarding the due-process claim
are correct, see R&R at 10-13, and the case
cited by Wattleton is distinguishable in numerous material
Lathon, the police department seized Mr.
Lathon's property pursuant to a search warrant. 242 F.3d
at 842. No criminal charges were ever filed against Mr.
Lathon in connection with the seized property, but that
property was nevertheless distributed to sheriffs'
offices in three different counties. Id. Mr. Lathon
requested the return of his property, but the city refused
and later argued that adequate post-deprivation remedies
existed, namely, the ability to bring a replevin action in
each county where Mr. Lathon sought return of property.
Id. at 842-44. The Eighth Circuit concluded that
“[t]he authorized decision not to return Mr.
Lathon's property is not the sort of action for which
postdeprivation process will suffice” and went on to
opine that even if it was, the available remedy was not
adequate. Id. at 844.
circumstances are materially different. He has access to a
pre-deprivation remedy. A litigant may file an in forma
pauperis application with the court, often at the
initiation of the lawsuit, in which the litigant can indicate
that he is civilly committed and therefore not subject to
PLRA filing fees to prevent his account from ever being
encumbered in the first place. See U.S. Courts,
Application to Proceed in District Court Without
Prepaying Fees or Costs (Short Form), Form No. AO 240
Instead of filing that application, or the earlier version of
it, Wattleton signed consent forms for fees to be collected
from his account in both cases. Hodge Decl. Ex. C at 4 [ECF
No. 20-3]; id. Ex. F at 6 [ECF No. 20-6]. Moreover,
Wattleton's property is not being distributed across
different counties through processes beyond his control.
Wattleton initiated the lawsuits in each of the two courts
that have indebted his account. See Hodge Decl. Ex.
H [ECF No. 20-8]; In re Wattleton, 536 Fed.Appx.
375, 376 (4th Cir. 2013) (identifying Wattleton as the
post-deprivation remedy is not inadequate either. If, after
choosing not to indicate at the outset that prisoner filing
fees do not apply to him, signing a consent form for the
withdrawal of funds from his account, and engaging in
litigation in the forum, Wattleton later decides to request a
court to stop collecting fees, it is not overly cumbersome
for him to return to the same court and request rescission of
the PLRA order. He successfully availed himself of that very
post-deprivation remedy in one instance-one court already
ordered that collection be stopped and previously debited
funds be refunded. Hodge Decl. Ex. E [ECF No. 20-5]; R&R
at 13. Magistrate Judge Thorson's conclusion that no
procedural-due-process violation occurred is correct.
See R&R at 10-13.
brought two motions to file a second amended complaint.
See Feb. 26, 2019 Mot. to Amend [ECF No. 41]; Mar.
18, 2019 Mot. to Amend [ECF No. 45]. The February 26 Motion
itself appears to be a second amended complaint. See
Feb. 26, 2019 Mot. to Amend (stating Wattleton “hereby
files this amended complaint”). The entire pleading is
one page of allegations with the signature block appearing on
a second page. See id. It alleges completely new and
different facts-namely, that the “profits from the sale
of commissary items do not benefit the inmate population
‘as a whole.'” Id. at 1. It also
fails to identify a defendant beyond “John or Jane Doe,
et al., ” which is only listed in the case caption, or
to identify specific claims beyond seeking injunctive relief.
Id. The March 18 motion appears to be a revised,
three-page version of that same second amended complaint.
See Mar. 18, 2019 Mot. to Amend. It provides a more
detailed recitation of the underlying facts and identifies
the Doe Defendant as the Trust Fund Administrator.
Id. at 1-3.
stage in the litigation, “a party may amend its
pleading only with the opposing party's written consent
or the court's leave.” Fed.R.Civ.P. 15(a)(2).
“The court should freely give leave when justice so
requires, ” id., “[h]owever, there is no
absolute right to amend, ” IBEW Local 98 Pension
Fund v. Best Buy Co., 326 F.R.D. 513, 521 (D. Minn.
2018) (quoting Doe v. Cassel, 403 F.3d 986, 990 (8th
Cir. 2005)). “A district court may refuse to grant
leave to amend pleadings for ‘undue delay, bad faith on
the part of the moving party, futility of the amendment or
unfair prejudice to the opposing party.'” IBEW
Local 98 Pension Fund, 326 F.R.D. at 521 (quoting
Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th
Cir. 1987)). Leave to file a supplemental pleading may be
granted “‘[o]n motion and reasonable notice,'
and ‘on just terms' according to the Court's
discretion.” Dalton v. Simonson Station Stores,
Inc., No. 17-cv-04427 (SRN/LIB), 2018 WL 2338807, at *2
(D. Minn. May 23, 2018) (alteration in original) (quoting
Fed.R.Civ.P. 15(d)). “Supplemental pleadings are
intended to cover matters occurring after the original
complaint is filed . . . .” Natco Pharma Ltd. v.
Gilead Scis., Inc., No. 14-cv-3247 (DWF/JSM), 2015 WL
5718398, at *7 (D. ...