United States District Court, D. Minnesota
C. Tarasek, THOMPSON TARASEK LEE-O'HALLORAN PLLC D/B/A
MINNESOTA CANNABIS LAW, for plaintiffs.
Christina M. Brown and Colin Patrick O'Donovan, OFFICE OF
THE MINNESOTA ATTORNEY GENERAL, for defendants.
Patrick J. Schiltz United States District Judge
Luis Miguel Hummel operates 5th Sun Gardens, LLC-an
industrial hemp farm located in Lanesboro, Minnesota. Hummel
and 5th Sun Gardens (collectively, “Hummel”) were
licensed to participate in the Industrial Hemp Pilot Program
(“Pilot Program”) that is administered by the
Minnesota Department of Agriculture (“MDA”). MDA
revoked Hummel's license after receiving a report from a
law-enforcement agency that Hummel had violated federal and
state law and program guidelines. After MDA denied
Hummel's request for a hearing, Hummel brought this
lawsuit, alleging (among other things) that MDA and several
of its employees had deprived him of property without due
process. This matter is before the Court on defendants'
motion to dismiss. For the reasons that follow,
defendants' motion is granted in part and denied in part.
law authorizes each state to establish “a pilot program
to study the growth, cultivation, or marketing of industrial
hemp.” 7 U.S.C. § 5940(a)(1). Pursuant to this
authorization, the Minnesota Legislature enacted the
Industrial Hemp Development Act, Minn. Stat § 18K.01 et
seq. Section 18K.09 of the Act establishes a pilot program
administered by MDA. Someone who wishes to participate in the
Pilot Program must obtain a license-and, to obtain a license,
he must enter into a memorandum of understanding
(“MOU”) with MDA. As the MOU explains, the Pilot
Program “establishes an agency relationship with Pilot
Participants, who operate as extensions of MDA for purposes
of researching the growth, cultivation, and marketing of
industrial hemp.” ECF No. 19 at 4. A license to
participate in the program is effective until the last day of
the calendar year in which it is issued, at which point
participants must reapply and enter into a new MOU.
Id. at 7.
January 2019, Hummel was issued a license to grow and process
industrial hemp as a participant in the Pilot Program. On
March 15, 2019, a Fillmore County sheriff's deputy
conducted a traffic stop on an individual who claimed to be
transporting and marketing hemp products on Hummel's
behalf. The deputy seized the products, which included
“wax” and “vape tips.” The products
were later tested and found to have delta-9
tetrahydrocannabinol (“THC”) concentrations of
3.6 percent and 3.11 percent respectively-far in excess of
the 0.3 percent maximum concentration allowed by program
guidelines and federal and state law. See 7 U.S.C.
§ 5940(a)(2); Minn. Stat. § 18K.02, subd. 3; ECF
No. 19 at 8-14. Fillmore County notified MDA, and MDA revoked
Hummel's license to grow industrial hemp. ECF No. 19 at
26. MDA also directed Hummel to destroy his current crop.
learned that his license had been revoked in a letter that
was dated May 1, 2019, and signed by defendant Doug Spanier,
Department Counsel for MDA. In response, Hummel invoked his
constitutional right to due process and demanded that MDA
conduct an evidentiary hearing regarding the events that had
led to the revocation. Id. at 29-30. Hummel's
demand for a hearing was rejected. Id. at 32-33.
then filed this action under 42 U.S.C. § 1983, alleging
that MDA and its employees had violated his rights to both
substantive and procedural due process under both the United
States and Minnesota Constitutions. Hummel seeks a
declaratory judgment, injunctive relief, and monetary
damages. Defendants have moved to dismiss Hummel's
amended complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6).
Standard of Review
ruling on a motion to dismiss for lack of subject-matter
jurisdiction, a court is free to weigh the evidence in order
to decide whether that evidence establishes that it has
jurisdiction. See Osborn v. United States, 918 F.2d
724, 730 (8th Cir. 1990). In reviewing a motion to dismiss
for failure to state a claim, a court must accept as true all
factual allegations in the amended complaint and draw all
reasonable inferences in favor of the non-moving party.
Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th
Cir. 2008). The allegations must be sufficient to
“raise a right to relief above the speculative
level” and to “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007). In assessing the
plausibility of a claim, the Court need not accept as true
any allegation that is merely “conclusory.”
Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).
argues that, pursuant to Fed.R.Civ.P. 12(d), defendants have
converted their motion to dismiss into a summary-judgment
motion by introducing matters outside of the pleadings. But
in ruling on a motion to dismiss, the Court may consider
documents necessarily embraced by the amended complaint and
matters of public record without converting the motion into
one for summary judgment. See Zean v. Fairview Health
Servs., 858 F.3d 520, 526 (8th Cir. 2017). Those are the
only matters that the Court has considered, and thus the
Court will not treat defendants' motion to dismiss as a
has sued MDA and four of its employees: Thom Petersen, Doug
Spanier, Margaret Wiatrowski, and Anthony Cortilet. The
employees are sued in both their official and individual
capacities, with the exception of Petersen, who is sued only
in his official capacity.
the Eleventh Amendment, the State of Minnesota and its
agencies (including MDA) are immune from suit in federal
court unless the State has consented to be sued or Congress
has expressly abrogated the State's immunity. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 100 (1984) (“[A] suit in which the State or one of
its agencies or departments is named as the defendant is
proscribed by the Eleventh Amendment.”). Hummel points
to no evidence of consent or abrogation, and thus all of his
claims against MDA are dismissed for lack of subject-matter
jurisdiction. See Quern v. Jordan, 440 U.S. 332,
339-41 (1979) (holding that § 1983 does not abrogate
States' Eleventh Amendment immunity); Eaton v. Minn.
Att'y Gen.'s Office, No. 10-CV- 1804 (JRT/FLN),
2011 WL 1195777, at *3 (D. Minn. Mar. 28, 2011) (“The
State of Minnesota has not waived its Eleventh Amendment
immunity from suit in federal court for federal
constitutional claims.” (citing DeGidio v.
Perpich, 612 F.Supp. 1383, 1388-89 (D. Minn. 1985))).
Eleventh Amendment also bars claims seeking damages from
State officials sued in their official capacities. See
Kentucky v. Graham, 473 U.S. 159, 169 (1985). Such
claims are barred because “a judgment against a public
servant in his official capacity imposes liability on the
entity that he represents.” Id. (quotations
and citations omitted). The Court therefore does not have
subject-matter jurisdiction over the official-capacity claims
against the employees insofar as those claims seek
damages. Under Ex parte Young, 209 U.S.
123 (1908), however, the Court does have subject-matter
jurisdiction over the official-capacity claims insofar as
those claims seek declaratory or injunctive relief in order
to end a continuing violation of federal law. See
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73
(1996). Specifically, the Court has subject-matter
jurisdiction over Hummel's official-capacity claims
insofar as he seeks an injunction “precluding the
Defendants from further impugning” his constitutional
rights and a declaration that “Defendants must provide
the Plaintiffs with notice and opportunity to be
heard.” ECF No. 15 at 10.
Eleventh Amendment does not bar claims for damages against
state officials sued in their individual capacities-as such
claims do not seek to impose liability on the state agency
that employs those individuals-and thus the Court can
exercise subject- matter jurisdiction over the
individual-capacity claims against defendants Spanier,
Wiatrowski, and Cortilet. See Nix v. Norman, 879
F.2d 429, 433 n.3 (8th Cir. 1989) (claims seeking damages
from state officials in their individual capacities are not
barred by Eleventh Amendment).
survive defendants' motion to dismiss his
official-capacity claims seeking prospective declaratory or
injunctive relief, Hummel must plausibly allege that
defendants are depriving him of his constitutional right to
due process. Hummel's burden with respect to his
individual-capacity claims is higher, as defendants have
qualified immunity from those claims unless Hummel can
plausibly allege that defendants deprived him of a
“‘clearly established statutory or constitutional
right of which a reasonable person would have
known.'” Pearson v. Callahan, 555 U.S.
223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)).
alleges that he was deprived of his rights to procedural and
substantive due process under the Fourteenth Amendment to the
United States Constitution and under Article 1, Section 7 of the
Minnesota Constitution. In response, defendants argue that,
when Hummel executed the MOU, he waived his right to sue for
violations of his constitutional rights. Defendants further
argue that, even if Hummel did not waive his right to sue,