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Gilmore v. Martin County Sheriff Department

United States District Court, D. Minnesota

July 12, 2019

CHRISTOPHER JOHN GILMORE, Plaintiff,
v.
MARTIN COUNTY SHERIFF DEPARTMENT, MARTIN COUNTY, FAIRMONT POLICE DEPARTMENT, THE CITY OF FAIRMOUNT, THE MINNESOTA DEPARTMENT OF HUMAN SERVICES, PETER OGDEN, JAIME BLEESS, DEBBIE FOSTER, JEFF MARQUARDT, SUE LEES, TANIA RATHMAN, TERRY VIESSELMAN, MICHAEL D. TRUSHENSKI, MARK GEERDES, DR. STEVEN C. NORTON, DR. LINDA MARSHALL, ANGELA NEWVILLE, RUSSEL MILEHAM, AND ANNA GARBERS, Defendants.

          REPORT AND RECOMENDATION

          ELIZABETH COWAN WRIGHT, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court upon its April 1, 2019 Order requiring Plaintiff Christopher Gilmore (“Gilmore” or “Plaintiff”) to file an amended complaint based on its initial screening pursuant to 28 U.S.C. § 1915A (Dkt. No. 27); Plaintiff's Motion for Temporary Restraining Order (Dkt. No. 3), Plaintiff's Motion for Summary Judgment (Dkt. No. 6), Plaintiff's Motion for Order of Prisoner Release (Dkt. No. 10), and Plaintiff's Motion for Immediate Summary Judgment (Dkt. No. 20). This case has been referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Gilmore originally filed this action against the Martin County Sheriff Department, Sheriff Marquardt, Tania Rathman, the Fairmont Police Department, Jaime Bleess, and Becky Foster. Gilmore's initial pleading is titled “Petition for Writ of Habeas Corpus.” (See Dkt. No. 1 at 1.) Instead of seeking valid habeas relief, Gilmore's Petition challenged infringements on his constitutional (and perhaps statutory) rights related to the conditions of his confinement, including claims of abuse under the Prison Rape Elimination Act (“PREA”), reprisal for reporting misconduct, and obstructing his access to the courts. (Id. at 1-2.)

         In reviewing Gilmore's application to proceed in forma pauperis, this Court warned Gilmore that:

It is not clear under what statutory authority Plaintiff seeks to proceed for the purposes of habeas relief. However, such petitions generally challenge a petitioner's conviction, sentence, or length of detention, and Gilmore's pleading does not do that. See Spencer v. Haynes, 774 F.3d 467, 469-70 (8th Cir. 2014) (“If the prisoner is not challenging the validity of his conviction or the length of his detention, such as loss of good time, then a writ of habeas corpus is not the proper remedy.”) (quoting Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996) (per curiam), citing Preiser v. Rodriguez, 411 U.S. 475, 499 (1973)). Gilmore's pleading appears to instead challenge infringements on his constitutional (and perhaps statutory) rights related to the conditions of his confinement, including claims of abuse, reprisal for reporting misconduct and obstructing his access to the courts. (See generally Dkt. No. 1 at 1.)

(Dkt. No. 27 at 3.) Rather than recommending dismissal of Gilmore's petition, the Court provided Gilmore the opportunity to convert his petition into a civil complaint and warned him of some the consequences under the Prison Litigation Reform Act (“PLRA”). (Id. at 4 (citing Spencer, 774 F.3d at 471).)

         To the extent that Gilmore decided that he is seeking to bring a civil rights complaint, the Court noted that it would be subject to review pursuant to 28 U.S.C. § 1915A. To this end, the Court concluded that if Gilmore intended to bring a civil rights complaint, it-as initially drafted-did not state a cause of action upon which this Court could grant relief:

The Petition purports to “seek[] relief from the illegal conduct and actions being procedurally and administratively taken against” Gilmore. (Dkt. No. 1 at 1.) Gilmore alleges that he “has been abused by . . . Jaime Bleess in blatant violations of the PREA [Prison Rape Elimination Act], ” but he provides no details about these purported violations. Id. The Petition also provides no specific allegations regarding any other named Defendant. (See generally Id. at 1-2.) He suggests that “the facility”-presumably the MCJ-“has worked diligently at committing acts of reprisal on a daily basis at the jail for the reporting of misconduct on [December 21, 2018].” (Id. at 1.) But there is no discussion of what specific acts of reprisal Gilmore complains of, nor is there any discussion of the misconduct reported in December 2018. (See Id. at 1-2.) Gilmore also suggests that he is being denied access to legal-reference materials, and that he has “specifically been told by every officer that [he] cannot have indigent legal postage envelopes” with which to press claims in state court. (Id. at 2.) Again, he does not provide here names of specific officers who made these statements, nor does he provide information such as when and where these statements were made to him. (See id.)

(Dkt. No. 27 at 6-7.) In addition, the Court found that the PREA does not create a private right of action. (Id. at 7 n.3 (string citation omitted).)

         Accordingly, this Court invited Gilmore to file an amended pleading that cures all the deficiencies set forth in the April 1, 2019 Order to the extent that he wanted to proceed with a civil rights complaint. (Id. at 7.) The Court gave Gilmore 30 days to file an amended complaint that complied with the Order and warned him that if “Gilmore does not file an amended complaint within 30 days of the date of this Order, the Court will recommend that this action be dismissed without prejudice.” (Id. at 8.)

         On April 12, 2019, Gilmore requested an additional 20 days to file an amended complaint. (Dkt. No. 28.) Gilmore asserted he did not receive the Court's April 1, 2019 Order. (Id.) Gilmore also asked that he be faxed a copy of all documents filed by him to date in this action, as he alleges that Martin County Jail destroyed his copies. (Id.) The Court granted the request for an extension and gave Gilmore until May 12, 2019 to file an amended complaint. (Dkt. No. 29.) The Court also directed the Clerk of Court to send Gilmore via U.S. Mail a copy of each docket entry up through and including the date of the Order. (Id.)

         On May 13, 2019, Gilmore requested another extension to comply with the Court's April 1, 2019 Order. (Dkt. No. 30.) In the request for an extension, Gilmore asserted that a Martin County Jail administrator had seized all of his legal materials upon his return from St. Peter to Martin County Jail, including all the legal materials provided by the Court along with the evidence he was planning to submit. (Id.) Based on this, Gilmore asserted that he needed an additional 30 days to comply with the Court's Order requiring him to file an amended complaint. (Id.) In response, the Court issued the following Order:

[I]t appears that Gilmore has received the Court's orders and has been able to ask for relief from this Court when necessary just as the deadlines set forth in its orders are expiring. As such, the Court will grant Gilmore a final 30-day extension to file an amended complaint that addresses the deficiencies set forth in the Court's April 1, 2019 Order. In addition, the Clerk of Court is directed to send Gilmore via U.S. Mail a copy of his initial Complaint (Dkt. No. 1) and the April 1, 2019 Order (Dkt. No. 27) setting forth the deficiencies in the Complaint.
If Plaintiff fails to file an Amended Complaint by June 27, 2019, the Court will recommend dismissing the present ...

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