United States District Court, D. Minnesota
ORDER ACCEPTING REPORT AND RECOMMENDATION
C. Tostrud United States District Judge
Michael Dewayne Perseke is civilly committed at the Minnesota
Sex Offender Program (“MSOP”) based on a judicial
determination that he is a sexually dangerous person.
See Am. Compl. ¶ 1 [ECF No. 4]; In re Civil
Commitment of Perseke, 2013 WL 1859133 (Minn.Ct.App. May
6, 2013). He commenced this action pro se by filing a
complaint challenging the legality of the Minnesota
conditional-release and registration statutes that apply to
him as a convicted sex offender, and he sought permission to
proceed in forma pauperis (“IFP”) as he litigates
his claim. See generally id.; see also
Application [ECF No. 5]. This matter is before the Court on a
Report and Recommendation issued by Magistrate Judge Hildy
Bowbeer on June 17, 2019. See generally Report and
Recommendation (“R&R”) [ECF No. 8].
Magistrate Judge Bowbeer recommends that, although Perseke
qualifies financially for IFP status, his claims nevertheless
should be dismissed because they fail to state a cause of
action on which relief may be granted. R&R at 2 (citing
28 U.S.C. § 1915(e)(2)(B)(ii)). Perseke filed objections
to the Report and Recommendation. ECF No. 9. Because he has
objected, the Court is required to review the Report and
Recommendation de novo pursuant to 28 U.S.C. § 636(b)(1)
and Local Rule 72.2(b)(3). The Court has undertaken that de
novo review and has concluded that Magistrate Judge
Bowbeer’s analysis and conclusions are correct.
claims, as confirmed or clarified in his objections, largely
mirror those recently raised in several other cases in this
District: (1) that Minnesota’s conditional-release and
registration statutes run afoul of a California statute, the
Tom Bane Civil Rights Act, Cal Civ. Code § 52.1,
see Obj. at 1–4; (2) that the imposition of
conditional release as part of his sentence is
unconstitutional because he was never separately indicted on
a charge arising under the conditional-release statute,
see Id . at 5–6; (3) that he has been
stigmatized by the conditional-release and registration
statutes, in violation of the U.S. Constitution, id.
at 6; and (4) that the requirement that he undergo treatment
while on conditional release is unconstitutional.
Judge Bowbeer correctly recommended that these claims be
dismissed. First, the Bane Act, a California statute, has no
application to this case, in which a civilly committed person
in Minnesota, detained pursuant to Minnesota law, seeks
relief from Minnesota governmental officials. See
R&R at 3; see also Thomas v. Schnell, No.
19-CV-450 (NEB/LIB), 2019 WL 4201070, at *1 (D. Minn. Sept.
5, 2019); Jacobson v. Schnell, No. 19-cv-0451
(JNE/ECW), 2019 WL 4060380, at *1 (D. Minn. Aug. 27, 2019);
Elk v. Schnell, Civil No. 18-3255 (DWF/LIB), 2019 WL
4011007, at *1 (D. Minn. Aug. 26 (2019); Hollie v.
Schnell, No. 19-cv-445 (PAM/KMM), 2019 WL 3800237, at *1
(D. Minn. Aug. 12, 2019); Thundercloud v. Schnell,
No. 19-CV-0448 (ECT/KMM), 2019 WL 3305192, at *2 (D. Minn.
June 27, 2019) (R&R accepted with no objections filed,
2019 WL 3305193 (D. Minn. July 23, 2019)); Olson v.
Schnell, No. 19-CV-0453 (SRN/KMM), 2019 WL 3241188, at
*2 (D. Minn. June 27, 2019) (R&R accepted with no
objections filed, 2019 WL 3239246 (D. Minn. July 18, 2019)).
Second, no separate charge was required before the Minnesota
court could constitutionally impose the statutorily required
term of conditional release as a part of Perseke’s
sentence. R&R at 4; see also Thomas, 2019 WL
4201070, at *1; Jacobson, 2019 WL 4060380, at *1;
Elk, 2019 WL 4011007, at *2; Hollie, 2019
WL 3800237, at *1; Thundercloud, 2019 WL 338282, at
*2; Olson, 2019 WL 3241188, at *2. Third, as the
Eighth Circuit described in Gunderson v. Hvass, 339
F.3d 639, 644–45 (8th Cir. 2003), the type of
stigma-based harms Perseke attributes to Minnesota’s
sex-offender-registration and conditional-release statutes,
see Obj. at 6, do not amount to a constitutional
violation. See Elk, 2019 WL 4011007, at *2;
Hollie, 2019 WL 3800237, at *2;
Thundercloud, 2019 WL 338282, at *3; Olson,
2019 WL 3241188, at *2. And fourth, Perseke has not explained
how the requirement that he receive treatment as a part of
any conditional release violates any constitutional right.
See Elk, 2019 WL 4011007, at *2; Hollie,
2019 WL 3800237, at *2.
as Perseke’s objections ask that he be permitted to
move to amend his complaint rather than have his claims
dismissed outright, that request will be denied. He has not
identified any additional facts or legal theories that he
would include in any such amendment. Furthermore, as the
Report and Recommendation explains, several of the grounds on
which Perseke’s complaint will be dismissed are not
even theoretically amenable to being amended in a way that
might satisfy the operative standard. See R&R at
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS ORDERED THAT:
Objections to the Report and Recommendation [ECF No. 9] are
OVERRULED; 2. The Report and Recommendation
[ECF No. 8] is ACCEPTED in full; 3. Pursuant
to 28 U.S.C. § 1915(e)(2)(B), this matter is
DISMISSED as follows:
a. Plaintiff’s claim alleging that the condition of
treatment amounts to a violation of his constitutional rights
is DISMISSED WITHOUT PREJUDICE; and
b. All other claims are DISMISSED WITH
Plaintiff’s application to proceed in forma pauperis
[ECF No. 5] is DENIED as moot.
JUDGMENT BE ...