United States District Court, D. Minnesota
Raymond L. Semler, Plaintiff,
Nancy Johnston, Executive Director of MSOP; Charlie Hoffman, Vocational Work Program Director; Peter Puffer, Clinical Director, MSOP- oose Lake; Randy Gordon-Behavior Expectation Hearing Panel; Julie Sajdak, Vocational Programming Supervisor; Paul Christensen, Vocational Programming Supervisor; Kevin Moser, MSOP-Moose Lake Facility Director, Sued in their individual and official capacities, Defendants.
ORDER ACCEPTING REPORT AND RECOMMENDATION
C. TOSTRUD UNITED STATES DISTRICT JUDGE
Raymond L. Semler is civilly committed to the Minnesota Sex
Offender Program (“MSOP”). See Am.
Compl. ¶ 1 [ECF No. 20]. In his Amended Complaint, filed
pro se, he challenges certain vocational-programming policies
and decisions implemented by the MSOP. See generally
Am. Compl. [ECF No. 20]; see also Report and
Recommendation (“R&R”) at 1-3 [ECF No. 37].
Defendants moved to dismiss. ECF No. 25. In a Report and
Recommendation dated August 1, 2019 and issued the following
day, Magistrate Judge Leo I. Brisbois recommends granting
Defendants' motion to dismiss. R&R at 14. Semler
filed objections to the Report and Recommendation [ECF No.
38], as well as a “Motion to Except Plaintiff's
Late Reply to R&R” [ECF No. 39] and a motion to
recuse Magistrate Judge Brisbois [ECF No. 41]. These motions
will be addressed in turn.
as to Semler's motion to consider his late-filed
objections, Semler needs no particular permission for his
objection to be considered. Ordinarily, any objection to a
report and recommendation must be filed “within 14 days
after being served with a copy.” LR 72.2(a)(1). Here,
Semler was served on August 2, which normally would make his
objection deadline August 16. But Semler was served by mail,
and that deadline therefore is extended by three days, to
Monday, August 19. Fed.R.Civ.P. 6(d). Furthermore, Semler is
civilly committed, and he therefore will be afforded the
benefit of the prison-mailbox rule, in which an inmate's
objections to a magistrate judge's report and
recommendation will be considered timely if he delivers those
objections to prison officials for mailing on or before the
filing date, even if they are received and filed by the Clerk
after the filing date. See Grinder v. Gammon, 73
F.3d 793, 794 (8th Cir. 1996) (applying prison-mailbox rule
to inmate's objections to magistrate judge's
recommendation). The Eighth Circuit has previously had
occasion to apply the prison-mailbox rule only to inmates,
but the majority of circuits to consider the question have
also applied it to civilly committed individuals like Semler.
See Boatman v. Berreto, 938 F.3d 1275, 1276 (11th
Cir. 2019); Brown v. Taylor, 829 F.3d 365, 369 (5th
Cir. 2016); Jones v. Blanas, 393 F.3d 918, 926 (9th
Cir. 2004); see also Lanahan v. Warden, 656
Fed.Appx. 22, 23 n.3 (4th Cir. 2016); but see Council v.
Nash, 400 Fed.Appx. 680, 682 (3d Cir. 2010) (declining
to apply the prison-mailbox rule to an inmate in a Community
Correctional Facility in part because he failed to show that
the “relatively lenient policies” of that
facility prevented him from ensuring “that his notice
of appeal was timely filed”). As the Eleventh Circuit
recently noted in Boatman v. Berreto:
the same considerations that led the Supreme Court to
establish the rule in the first place . . . apply in the
civil-commitment context. Like those imprisoned for crimes,
civilly detained pro se litigants frequently
‘cannot take the steps other litigants can take to
monitor the processing of their [filings] and to ensure that
the court clerk receives and stamps their [filings] before
the . . . deadline.
938 F.3d at 1277 (quoting Houston v. Lack, 487 U.S.
266, 270-71 (1988). Semler deposited his objection in the
mail on August 19, 2019, his deadline for filing objections
to a Report and Recommendation with which he was served by
mail. ECF No. 38-1. Because those objections were timely
filed under the prison-mailbox rule, his motion to accept his
late-filed objections will be denied as moot.
Semler's objections to the Report and Recommendation, the
Court is required to review de novo those portions of the
Report and Recommendation to which Semler has objected.
See 28 U.S.C. § 636(b)(1); Local Rule
72.2(b)(3). As Defendants point out, Semler's objections
are not accompanied by a certification that he has complied
with either the word or line limits that apply to objections,
and his objections appear on their face to far exceed those
limitations. See LR 72.2(c). Although one
appropriate course of action might be to order Semler to
re-file a shorter version of his objections that complies
with the applicable length limitations, doing so in this case
would not aid review of Semler's objections and would
unnecessarily delay resolution of this matter. The Court has
reviewed de novo Semler's objections as filed and has
determined that Magistrate Judge Brisbois's analysis and
conclusions are correct.
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
5-6; see also Perseke v. Schnell, No. 19-cv-0443
(ECT/HB), 2019 WL 4687039, at *1 (D. Minn. Sept. 26, 2019);
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)).
the State of Minnesota has not waived sovereign immunity from
suit in federal court, Faibisch v. Univ. of Minn.,
304 F.3d 797, 800 (8th Cir. 2002), and in enacting §
1983, Congress did not abrogate that immunity, Tex. Cmty.
Bank, N.A., v. Mo. Dep't of Soc. Servs., Div. of Med.
Servs., 232 F.3d 942 (8th Cir. 2000). This type of
sovereign immunity is distinct from the qualified-immunity
issues Semler discusses in his objections. See Obj.
at 4-7; Kentucky v. Graham, 473 U.S. 159, 166-67
(1985) (distinguishing between personal-immunity defenses
(including qualified immunity) that may apply to officials
sued in their individual capacities from “forms of
sovereign immunity that the entity, qua entity, may
possess, such as the Eleventh Amendment, ” which are
“[t]he only immunities that can be claimed in an
official-capacity action”). Accordingly, Magistrate
Judge Brisbois correctly concluded that the Eleventh
Amendment bars Semler's claims insofar as they seek to
recover monetary damages from state officials sued in their
official capacities. See R&R at 6-7.
Semler's Equal Protection claim fails because he has not
alleged that he is treated less favorably than similarly
situated individuals; rather, he is comparing his
vocational-programming access to that of MSOP residents who,
because they are participating in treatment, are by
definition not similarly situated to Semler, who is not
participating in treatment. R&R at 9; see also Am.
Fam. Ins. v. City of Minneapolis, 129 F.Supp.3d 674,
679-80 (D. Minn. 2015) (citing Ganley v. Minneapolis Park
& Rec. Bd., 491 F.3d 743, 47 (8th Cir. 2007).
fourth, Semler's procedural due-process claims are not
viable because he has not identified any constitutionally
protected right that was affected by the termination of his
vocational placement or by the hearing on, or outcome of, the
Behavioral Expectation Report he received in October 2019.
R&R at 12-13.
leaves Semler's motion to recuse Magistrate Judge
Brisbois. This motion is premised on Semler's contention
that Magistrate Judge Brisbois's Report and
Recommendation got it wrong. But even if that were so-and, as
described above, it is not-that fact would not demonstrate
partiality or bias warranting recusal under 28 U.S.C. §
455; rather it would be properly raised in an objection to
the Report and Recommendation itself. See Amen El v.
Roy, Civ. No. 18-2545 (JRT/HB), 2018 WL 5619203, at *3
(D. Minn. Oct. 30, 2018). In any event, because Semler's
claims are all being dismissed, his motion to recuse
Magistrate Judge Brisbois will be denied as moot.
on the foregoing, and on all of the files, records, and