United States District Court, D. Minnesota
Allen Andrews, pro se.
Patrick J. Schiltz United States District Judge.
matter is before the Court on plaintiff Jamie Allen
Andrews's objection to the August 23, 2019 Report and
Recommendation (“R&R”) of Magistrate Judge
Steven E. Rau. Judge Rau recommends dismissal of
Andrews's complaint pursuant to 28 U.S.C. §
1915(e)(2)(B). Judge Rau further recommends denial of
Andrews's application to proceed in forma pauperis. The
Court has conducted a de novo review. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). Based on that review, the
Court overrules Andrews's objection and adopts the
R&R. Only a couple of matters merit comment:
Andrews objects to the dismissal of his claim under the Tom
Bane Civil Rights Act, Cal. Civ. Code § 52.1
(“Bane Act”). Judge Rau recommends dismissal of
that claim because the Bane Act is a California statute that
does not apply in this case brought by a civil detainee of
the State of Minnesota against officials of the State of
Minnesota regarding actions taken in Minnesota and pursuant
to Minnesota law. Andrews argues that Judge Rau's
recommendation “does not even make sense”
because, if Judge Rau were correct, landmark decisions of the
United States Supreme Court (such as Roe v. Wade and
Brown v. Board of Education) and landmark federal
statutes (such as the Civil Rights Act of 1964) would apply
only in the states from which they “originated.”
ECF No. 12 at 2.
decisions that Andrews cites are interpretations of the
United States Constitution, and the Civil Rights Act of 1964
is a federal statute. The United States Constitution and
federal statutes apply to Minnesota because Minnesota is part
of the United States; the Bane Act does not apply to
Minnesota because Minnesota is not part of California.
Andrews cannot sue the defendants under the Bane Act. ECF No.
11 at 7; see also Perske v. Schnell, No. 19-CV-0443
(ECT/HB), 2019 WL 4687039, at *1 (D. Minn. Sept. 26, 2019);
Thomas v. Schnell, No. 19-CV-0450 (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, No.
18-CV-3255 (DWF/LIB), 2019 WL 4011007, at *1 (D. Minn. Aug.
26, 2019); Hollie v. Schnell, No. 19-CV-0445
(PAM/KMM), 2019 WL 3800237, at *1 (D. Minn. Aug. 13, 2019).
Andrews takes issue with the way that Judge Rau characterized
his argument that imposing a term of conditional release
without separately charging and indicting him under
Minnesota's conditional-release statute violated his
right to due process. ECF No. 12 at 6. According to Andrews,
“Plaintiff never mentioned that he was charged with a
new charge (which the Court is reading into), but merely
alleging that because of the imposed conditional release, it
made a new charge.” ECF No. 12 at 6. Andrews is
squabbling over semantics. Judge Rau clearly understood the
substance of Andrews's claim and correctly explained that
Andrews's claim is meritless because conditional release
is not a “new charge, ” but instead is part of
the sentence imposed for Andrews's conviction of
second-degree criminal sexual conduct. ECF No. 11 at 8; see
Minn. Stat. § 609.3455, subds. 6-7 (imposing mandatory
terms of conditional release for sex offense convictions).
No. separate charge or indictment was required.
the R&R recommends dismissing all claims with prejudice,
with one exception: Judge Rau recommends dismissing without
prejudice Andrews's claim that requiring him to undergo
treatment while on conditional release is unconstitutional,
as this claim “is at least theoretically amenable to
repleading.” ECF No. 11 at 9. In his objection to the
R&R, Andrews offers to file a motion to amend his
complaint with respect to that claim pursuant to Fed.R.Civ.P.
15(a)(2). As there is no Rule 15 motion presently before the
Court, and as Andrews has failed to put forward any new facts
or legal theories he might rely on in making such a motion,
the Court concludes that dismissal without prejudice is the
proper disposition of this claim. See United States ex
rel. Ambrosecchia v. Paddock Laboratories, LLC, 855 F.3d
949, 956 (8th Cir. 2017) (“[A] district court does not
abuse its discretion in denying leave to amend where the
plaintiff made no motion for leave to amend and did not
explain the substance of his proposed amendment.”
(quotations and citations omitted)); Lindsey v.
Moser, 15-CV-2091 (SRN/SER), 2016 WL 4046719, at *3-4
(D. Minn. July 28, 2016) (denying pro se plaintiff leave to
amend where plaintiff failed to file a motion to amend or to
specify his proposed amendments).
on the foregoing, and on all of the files, records, and
proceedings herein, the Court OVERRULES plaintiff's
objection [ECF No. 12] and ADOPTS the R&R [ECF No. 11].
IT IS HEREBY ORDERED THAT:
Pursuant to 28 U.S.C. § 1915(e)(2)(B), this matter is
DISMISSED as follows:
Plaintiff's claim alleging that the condition of
treatment amounts to a violation of his constitutional rights
is DISMISSED WITHOUT PREJUDICE;
other claims are DISMISSED WITH PREJUDICE; and
Plaintiff's application to proceed in forma