Hollie v. Essentia Health Moose Lake Clinic

U.S. District Court, District of Minnesota November 18, 2022

Trial Court Opinion

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                

Shannon Hollie,                        Case No. 22-cv-314 (KMM/LIB)      

               Plaintiff,                                                

v.

ORDER

Essentia Health Moose Lake; Benjamin                                     
Marsh, Medical Doctor, Essentia Health;                                  
and Jane/John Does (Unknown                                              
Individuals);                                                            

               Defendants.                                               


    This matter is before the Court on Plaintiff Shannon Hollie’s motion to strike the 
affirmative defenses asserted by Defendant Benjamin Marsh, M.D., in his answer to the 
complaint. [Mot. to Strike, ECF No. 26; Def. Marsh’s Ans., ECF No. 22]. For the reasons 
that follow, the motion is denied.                                        
    Background                                                           
    Mr. Hollie  is  involuntarily  civilly  committed  at  the  Minnesota  Sex  Offender 
Program’s facility in Moose Lake, Minnesota. On February 1, 2022, Mr. Hollie filed his 
complaint “pursuant to

42 U.S.C. § 1983

, federal disability statutes, state and federal
discrimination statutes,” alleging that he was discriminated against as a class of one and
that he received inadequate treatment for his serious medical needs. [ECF No. 1 ¶ 1].
Mr. Hollie asserts that Defendants have refused to provide him with a penile implant
needed to treat erectile dysfunction following a prostatectomy procedure. He also asserts
that Defendants unlawfully altered or falsified his medical records. [Id. ¶ 2(a)]. Dr. Marsh
is a urologist who has allegedly refused to treat Mr. Hollie and falsified his medical records
for discriminatory reasons. [Id. ¶ 12].
Dr. Marsh began treating Mr. Hollie following a prostatectomy procedure in

October 2018. Mr. Hollie informed Dr. Marsh that he was struggling with urinary leakage,
pink-tinged blood spotting, and limited ability to empty his bladder. [Id. ¶¶ 21, 23–25].
Dr. Marsh performed a cystoscopy procedure on Mr. Hollie in June 2021, after which,
Dr. Marsh also discussed options for treating Mr. Hollie’s erectile dysfunction issues.
Among those options was a penile implant, which Dr. Marsh allegedly told Mr. Hollie was

covered by his medical insurance. [Id. ¶ 26]. However, Dr. Marsh also said that he was
having issues with performing the procedure because Mr. Hollie is located at MSOP due
to his status as a sex offender. Dr. Marsh told Mr. Hollie that he would raise his concerns
with the procedure to an ethics committee, but never followed through on that promise. [Id.
¶¶ 27–28]. Dr. Marsh also allegedly falsified the records concerning these interactions to

make it appear that the discussions he had with Mr. Hollie regarding this issue occurred in
October 2021, when in reality, they had taken place in June. [Id. ¶¶ 29–33].
As a result of these events, Mr. Hollie asserts that he has suffered mental and
emotional distress, loss of sleep, nightmares, high blood pressure, lack of sexual function,
lack of ability to maintain sexual relationships, lower quality of life, demoralization in

relationships, and inability to reproduce. [Id. ¶ 34]. In Count I of his Complaint, Mr. Hollie
combines several claims. He alleges that Defendants provided him with inadequate medical
care in violation of his right to due process of law under the United States Constitution and
Minnesota Constitution. He further asserts that Defendants’ conduct violates Titles II and
III of the Americans with Disabilities Act, the Rehabilitation Act, the Minnesota Health
Records Act, and

Minn. Stat. § 541.076.1

[Id. ¶¶ 36–37]. In Count II, Mr. Hollie asserts
that Defendants have discriminated against him based on his status as a sex offender in

violation of his right to equal protection under the Fourteenth Amendment and the same
statutes listed in Count I. [Id. ¶¶ 38–40].
On May 9, 2022, Dr. Marsh filed an answer to Mr. Hollie’s complaint, largely
denying the allegations against him and denying that Mr. Hollie is entitled to any relief.
[ECF No. 22]. In addition, Dr. Marsh interposed eleven “affirmative defenses.” [Id.

¶¶ XX–XXX]. In the affirmative defenses, Dr. Marsh:
1. denies he was negligent and asserts that he acted with reasonable care
(¶ XX);
2. denies he violated Mr. Hollie’s due process rights (¶ XXI);
3. denies he violated Mr. Hollie’s equal protection rights (¶ XXII);
4. denies that any action or inaction by Dr. Marsh was a proximate cause of
injury (¶ XXIII);
5. denies that he violated any of Mr. Hollie’s rights under the U.S. Constitution
or the Minnesota Constitution (¶ XXIV)
6. asserts that he lacks knowledge or information sufficient to form a belief
regarding Mr. Hollie’s alleged injuries or damages, and therefore denies the
same (¶ XXV);
7. asserts that if Mr. Hollie was harmed, any damages may have been the “result
of a natural disease process, pre-existing medical condition, pre-existing
medical disability, a superseding cause, an act of nature, and/or the act or
failure to act by one or more persons, including Plaintiff for whom
[Dr. Marsh] has no right of control and over whom [he] has no responsibility
(¶ XXVI);
8. asserts that Mr. Hollie’s claims against him are governed by

Minn. Stat. § 145.682

, and demands full compliance with that statute’s requirements,
including service of expert affidavits (¶ XXVII);

1 Section 541.076 establishes a four-year statute of limitations for an action by a
“patient or former patient against a healthcare provider alleging malpractice, error, mistake,
or failure to cure, whether based on contract or tort.”
9. alleges that his own actions were carried out “in good faith and were entirely
consistent with all common law, statutory, constitutional, equitable, ethical,
or other applicable duties or obligations of whatever nature owed to
[Mr. Hollie]” (¶ XXVIII);
10. asserts that Mr. Hollie’s complaint fails to state a claim upon which relief
can be granted (¶ XXIX); and
11. alleges that Mr. Hollie’s “causes of action against [Dr. Marsh] [are] barred
by the doctrine of qualified immunity” (¶ XXX).

On July 18, 2022, Mr. Hollie moved to strike Dr. Marsh’s affirmative defenses, and that
motion has now been fully briefed.2 [ECF Nos. 26–27, 33, 35–36].
Legal Standard
Under Federal Rule of Civil Procedure 12(f), a court “may strike from a pleading
an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
Striking a pleading is a discretionary decision, but it is often described as a “disfavored”
remedy. E.g., BJC Health Sys. v. Columbia Cas. Co.,

478 F.3d 908, 917

 (8th Cir. 2007); 
Stanbury Law Firm v. Internal Revenue Serv.,

221 F.3d 1059, 1063

 (8th Cir. 2000). 
    “A motion to strike should be granted ‘if the result is to make a trial less complicated 
or otherwise streamline the ultimate resolution of the action.’” Bjornson v. Soo Line R. Co., 
Civil No. 14-4596 (JRT/SER),

2015 WL 5009349

, at*3 (D. Minn. Aug. 24, 2015) (quoting 
Daigle v. Ford Motor Co.,

713 F. Supp. 2d 822, 830

 (D. Minn. 2010)). “A court may strike 

    2 In his memorandum of law in support of the motion to strike, Mr. Hollie refers to 
the affirmative defenses in “the Defendants [sic] Answers.” [ECF No. 27 at 1]. Though he 
appears to refer to Defendants in the plural, he specifically references the document at 
docket entry 22, which is Dr. Marsh’s answer containing his affirmative defenses. [Id.] 
Mr. Hollie also refers to “paragraphs XX-XXX” which corresponds to the numbering of 
the affirmative defenses found in Dr. Marsh’s answer. [Id. at 3]. Accordingly, the Court 
interprets Mr. Hollie’s motion as seeking to strike the affirmative defenses in Dr. Marsh’s 
answer alone.                                                             
a defense as legally insufficient if the defense asserted is foreclosed by prior controlling 
decisions or statutes.” Nadeau v. Experian Info. Sols, Inc., No. 20-cv-1841 (PJS/TNL),

2020 WL 7396588

, at *5 (D. Minn. Dec. 17, 2020) (internal quotation omitted). But if a 

defense is sufficient, as a matter of law, or presents a factual or legal question the court 
should hear, the motion should be denied. Lunsford v. United States,

570 F.2d 221, 229

 
(8th Cir. 1977). In the absence of controlling precedent or statutory authority, “a defense 
will not be stricken as legally insufficient.” Bjornson,

2015 WL 5009349

, at *3. 
    Discussion                                                           

    Mr. Hollie raises several arguments in support of his motion to strike. The Court 
finds  those  arguments  unavailing  and  will  not  exercise  its  discretion  to  strike  the 
affirmative defenses from Dr. Marsh’s answer. Before addressing Mr. Hollie’s specific 
arguments, the Court observes that its decision in this matter is motivated, in large part, by 
the fact that striking a defense is generally a disfavored remedy. BJC Health Sys.,

478 F.3d at 917

. Moreover, the Court finds unpersuasive Mr. Hollie’s suggestion that he will be 
unfairly prejudiced by inclusion of these affirmative defenses in the answer. [ECF No. 27 
at 9–10].                                                                 
    Turning  to  his  specific  arguments,  Mr. Hollie  first  argues  that  Dr. Marsh’s 
affirmative defenses should all be stricken because Dr. Marsh fails to support them with 

specific factual allegations. [ECF No. 27 at 3]. There is a “split amongst district courts, 
both within and outside the Eighth Circuit, regarding whether the plausibility standard 
established in Twombly and Iqbal applies to affirmative defenses.” Acosta v. Luxury 
Floors, Inc., No. 18-cv-01489 (WMW/ECW),

2018 WL 7350478

, at *2 (D. Minn. Dec. 7, 
2018) (quoting Summers Mfg. Co., Inc. v. Tri-City AG, LLC,

300 F. Supp. 3d 1025, 1043

 
(S.D. Iowa 2017)). “District courts in this District have also split on this issue.”

Id.

 
(comparing Wells Fargo & Co. v. United States,

750 F. Supp. 2d 1049, 1051

 (D. Minn. 

2010), and Ahle v. Veracity Research Co.,

738 F. Supp. 2d 896, 925

 (D. Minn. 2010)). The 
Court agrees with the analysis and reasoning set forth in Wells Fargo & Co. v. United 
States, 750 F. Supp. 2d at 1051–52, and concludes that Dr. Marsh’s affirmative defenses 
should not be stricken based on an absence of specific factual allegations supporting each 
defense.                                                                  

    Second, Mr. Hollie asserts that the first six affirmative defenses in paragraphs XX 
through XXV of Dr. Marsh’s answer are “confusing” and are “tantamount to a denial of 
any claims and liability.” [ECF No. 27 at 4]. Although the Court agrees with Mr. Hollie 
that the denials set forth in these paragraphs of the answer are not necessarily affirmative 
defenses that a defendant is required to plead and prove, striking them is unnecessary. They 

are not “legally insufficient” in any meaningful sense because Dr. Marsh has, in fact, 
denied liability and denied the bulk of Mr. Hollie’s factual allegations, and Mr. Hollie has 
pointed to no controlling statute or case that requires them to be stricken. Bjornson,

2015 WL 5009349

, at *3. Nor are these denials so redundant, immaterial, impertinent, or 
scandalous that the Court should exercise its discretion to remove them from the pleading. 

In essence, striking this material from the answer will not make the trial less complicated 
or otherwise streamline the ultimate resolution of the action.

Id.

        
    Third, Mr. Hollie argues that failure to state a claim is not an affirmative defense, 
so paragraph XXIX of Dr. Marsh’s answer should be stricken. [Id. at 6–7]. Some courts 
have stricken the assertion of failure to state a claim as an improper affirmative defense, 
others have held that it may be asserted as an affirmative defense, and still others have held 
that it should simply be treated as a denial rather than stricken. Leonard v. Lentz, No. 17-

CV-3037-LRR,

2017 WL 11453698

, at *3 (N.D. Iowa Aug. 8, 2017) (collecting cases). 
Here, the Court finds it appropriate to treat the assertion that Mr. Hollie’s complaint fails 
to state a claim as a denial and concludes that striking it is neither necessary nor appropriate 
under the circumstances. See

id.

 (agreeing with the reasoning of courts that have treated 
failure to state a claim as a denial rather than striking it as an irrelevant or immaterial 

affirmative defense).                                                     
    Fourth, Mr. Hollie argues that Dr. Marsh’s qualified-immunity defense in paragraph 
XXX of the answer should be stricken as legally insufficient because Dr. Marsh is a private 
actor to whom qualified immunity does not apply. [ECF No. 27 at 7–9]. “Only a state actor 
can face § 1983 liability for acting under color of state law,” but under some circumstances, 

“a private entity can qualify as a state actor.” Roberson v. Dakota Boys & Girls Ranch,

42 F.4th 924

, 928 (8th Cir. 2022) (quotation omitted). Whether a private entity qualifies as a 
state actor is a fact-dependent question.

Id.

 “But private individuals, as state actors, are not 
necessarily entitled to assert the defense of qualified immunity in defending section 1983 
claims.” Davis v. Buchanan Cnty.,

11 F.4th 604

, 617 (8th Cir. 2021). Deciding whether a 

private person, as a state actor, may be protected by qualified immunity depends on the 
application  of  “two  factors:  the  ‘general  principles  of  tort  immunities  and  defenses 
applicable at common law, and the reasons we have afforded protection from suit under 
§ 1983.’” Id. (quoting Filarsky v. Delia,

566 U.S. 377, 384

 (2012)). Here, resolving the 
legal sufficiency or insufficiency of Dr. Marsh’s qualified immunity defense is premature. 
Based on the current record, the Court cannot determine whether Dr. Marsh could possibly 
be a state actor such that § 1983 liability could be imposed upon him. Accordingly, the 

Court cannot say that the defense of qualified immunity is legally unavailable and will not 
strike paragraph XXX from Dr. Marsh’s answer.                             
    Finally,  Mr. Hollie  asserts  that  Dr. Marsh’s  affirmative  defense  set  forth  in 
paragraph XXVII should be stricken as legally insufficient because the requirements of

Minn. Stat. § 145.682

 only applies to a malpractice action, and Mr. Hollie has not brought 

a claim for medical malpractice against Dr. Marsh. [ECF No. 27 at 5–6]. Section 145.682 
provides that a plaintiff in a medical malpractice action against a health care provider must 
serve an affidavit of expert review along with the summons and complaint, and within 180 
days after discovery has commenced, the plaintiff must serve another expert affidavit 
setting forth the substance of the facts and opinions to which the expert will testify. See

Minn. Stat. § 145.682

, subds. 2(1), 2(2), 3(1), 4(a).                     
    Mr. Hollie’s complaint does not explicitly mention a medical-malpractice claim. 
Indeed, in his reply memorandum, Mr. Hollie has explicitly stated that he is not bringing a 
medical-malpractice claim. [ECF No. 35 at 5–7]. Nor does the Complaint appear to allege, 
by some other name, that Dr. Marsh’s negligence in providing medical care caused him 

harm. Here, Mr. Hollie has alleged violations of his federal constitutional rights based on 
inadequate medical treatment, the type of claim to which courts apply the deliberate-
indifference standard used in the Eighth Amendment context. Judah v. Ovsak,

550 F. Supp. 3d 687

, 703 (D. Minn. 2021) (citing Mead v. Palmer,

794 F.3d 932, 936

 (8th Cir. 2015), 
and Karsjens v. Lourey,

988 F.3d 1047

, 1052 (8th Cir. 2021)).             
    Still, Dr. Marsh insists that Mr. Hollie has asserted a medical-malpractice claim 

against him. [ECF No. 33 at 11–12]. But Dr. Marsh cites no authority for the proposition 
that the expert-affidavit requirements of

Minn. Stat. § 145.682

 apply to the deliberate-
indifference claim in Mr. Hollie’s complaint. The Court’s own research has revealed no 
case concluding that the provisions of § 145.682 must be complied with by any plaintiff 
alleging constitutionally inadequate medical treatment. Indeed, courts that have applied 

§ 145.682 in similar litigation have done so in the face of state law claims alleging 
negligent medical treatment. See, e.g., Judah, 550 F. Supp. 3d at 707 (applying § 145.682 
to “medical-malpractice-based negligence claims” brought against healthcare providers by 
a civilly committed individual plaintiff). In light of Mr. Hollie’s clarification that he is not 
pursuing a medical negligence or malpractice claim against Dr. Marsh under state law, it 

seems unlikely that the affirmative defense in paragraph XXVII of Dr. Marsh’s answer will 
be of much import in this litigation. However, the Court has been presented with no 
controlling legal authority clearly foreclosing reliance on the expert-affidavit statute in a 
case such as this. Accordingly, although the Court doubts the applicability of the statute, it 
will not strike this defense from Dr. Marsh’s answer at this time.

ORDER

    For the reasons discussed above, IT IS HEREBY ORDERED that Plaintiff’s 
motion to strike affirmative defenses [ECF No. 26] is DENIED.             
Date: November 18, 2022                                                   
                                    s/Katherine Menendez                 
                                  Katherine Menendez                     
                                  United States District Judge

Trial Court Opinion

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                

Shannon Hollie,                        Case No. 22-cv-314 (KMM/LIB)      

               Plaintiff,                                                

v.

ORDER

Essentia Health Moose Lake; Benjamin                                     
Marsh, Medical Doctor, Essentia Health;                                  
and Jane/John Does (Unknown                                              
Individuals);                                                            

               Defendants.                                               


    This matter is before the Court on Plaintiff Shannon Hollie’s motion to strike the 
affirmative defenses asserted by Defendant Benjamin Marsh, M.D., in his answer to the 
complaint. [Mot. to Strike, ECF No. 26; Def. Marsh’s Ans., ECF No. 22]. For the reasons 
that follow, the motion is denied.                                        
    Background                                                           
    Mr. Hollie  is  involuntarily  civilly  committed  at  the  Minnesota  Sex  Offender 
Program’s facility in Moose Lake, Minnesota. On February 1, 2022, Mr. Hollie filed his 
complaint “pursuant to

42 U.S.C. § 1983

Minn. Stat. § 541.076.1

[Id. ¶¶ 36–37]. In Count II, Mr. Hollie asserts
that Defendants have discriminated against him based on his status as a sex offender in

Minn. Stat. § 145.682

, and demands full compliance with that statute’s requirements,
including service of expert affidavits (¶ XXVII);

478 F.3d 908, 917

 (8th Cir. 2007); 
Stanbury Law Firm v. Internal Revenue Serv.,

221 F.3d 1059, 1063

 (8th Cir. 2000). 
    “A motion to strike should be granted ‘if the result is to make a trial less complicated 
or otherwise streamline the ultimate resolution of the action.’” Bjornson v. Soo Line R. Co., 
Civil No. 14-4596 (JRT/SER),

2015 WL 5009349

, at*3 (D. Minn. Aug. 24, 2015) (quoting 
Daigle v. Ford Motor Co.,

713 F. Supp. 2d 822, 830

 (D. Minn. 2010)). “A court may strike 

    2 In his memorandum of law in support of the motion to strike, Mr. Hollie refers to 
the affirmative defenses in “the Defendants [sic] Answers.” [ECF No. 27 at 1]. Though he 
appears to refer to Defendants in the plural, he specifically references the document at 
docket entry 22, which is Dr. Marsh’s answer containing his affirmative defenses. [Id.] 
Mr. Hollie also refers to “paragraphs XX-XXX” which corresponds to the numbering of 
the affirmative defenses found in Dr. Marsh’s answer. [Id. at 3]. Accordingly, the Court 
interprets Mr. Hollie’s motion as seeking to strike the affirmative defenses in Dr. Marsh’s 
answer alone.                                                             
a defense as legally insufficient if the defense asserted is foreclosed by prior controlling 
decisions or statutes.” Nadeau v. Experian Info. Sols, Inc., No. 20-cv-1841 (PJS/TNL),

2020 WL 7396588

, at *5 (D. Minn. Dec. 17, 2020) (internal quotation omitted). But if a 

defense is sufficient, as a matter of law, or presents a factual or legal question the court 
should hear, the motion should be denied. Lunsford v. United States,

570 F.2d 221, 229

 
(8th Cir. 1977). In the absence of controlling precedent or statutory authority, “a defense 
will not be stricken as legally insufficient.” Bjornson,

2015 WL 5009349

, at *3. 
    Discussion                                                           

    Mr. Hollie raises several arguments in support of his motion to strike. The Court 
finds  those  arguments  unavailing  and  will  not  exercise  its  discretion  to  strike  the 
affirmative defenses from Dr. Marsh’s answer. Before addressing Mr. Hollie’s specific 
arguments, the Court observes that its decision in this matter is motivated, in large part, by 
the fact that striking a defense is generally a disfavored remedy. BJC Health Sys.,

478 F.3d at 917

. Moreover, the Court finds unpersuasive Mr. Hollie’s suggestion that he will be 
unfairly prejudiced by inclusion of these affirmative defenses in the answer. [ECF No. 27 
at 9–10].                                                                 
    Turning  to  his  specific  arguments,  Mr. Hollie  first  argues  that  Dr. Marsh’s 
affirmative defenses should all be stricken because Dr. Marsh fails to support them with 

specific factual allegations. [ECF No. 27 at 3]. There is a “split amongst district courts, 
both within and outside the Eighth Circuit, regarding whether the plausibility standard 
established in Twombly and Iqbal applies to affirmative defenses.” Acosta v. Luxury 
Floors, Inc., No. 18-cv-01489 (WMW/ECW),

2018 WL 7350478

, at *2 (D. Minn. Dec. 7, 
2018) (quoting Summers Mfg. Co., Inc. v. Tri-City AG, LLC,

300 F. Supp. 3d 1025, 1043

 
(S.D. Iowa 2017)). “District courts in this District have also split on this issue.”

Id.

 
(comparing Wells Fargo & Co. v. United States,

750 F. Supp. 2d 1049, 1051

 (D. Minn. 

2010), and Ahle v. Veracity Research Co.,

738 F. Supp. 2d 896, 925

 (D. Minn. 2010)). The 
Court agrees with the analysis and reasoning set forth in Wells Fargo & Co. v. United 
States, 750 F. Supp. 2d at 1051–52, and concludes that Dr. Marsh’s affirmative defenses 
should not be stricken based on an absence of specific factual allegations supporting each 
defense.                                                                  

    Second, Mr. Hollie asserts that the first six affirmative defenses in paragraphs XX 
through XXV of Dr. Marsh’s answer are “confusing” and are “tantamount to a denial of 
any claims and liability.” [ECF No. 27 at 4]. Although the Court agrees with Mr. Hollie 
that the denials set forth in these paragraphs of the answer are not necessarily affirmative 
defenses that a defendant is required to plead and prove, striking them is unnecessary. They 

are not “legally insufficient” in any meaningful sense because Dr. Marsh has, in fact, 
denied liability and denied the bulk of Mr. Hollie’s factual allegations, and Mr. Hollie has 
pointed to no controlling statute or case that requires them to be stricken. Bjornson,

2015 WL 5009349

, at *3. Nor are these denials so redundant, immaterial, impertinent, or 
scandalous that the Court should exercise its discretion to remove them from the pleading. 

In essence, striking this material from the answer will not make the trial less complicated 
or otherwise streamline the ultimate resolution of the action.

Id.

        
    Third, Mr. Hollie argues that failure to state a claim is not an affirmative defense, 
so paragraph XXIX of Dr. Marsh’s answer should be stricken. [Id. at 6–7]. Some courts 
have stricken the assertion of failure to state a claim as an improper affirmative defense, 
others have held that it may be asserted as an affirmative defense, and still others have held 
that it should simply be treated as a denial rather than stricken. Leonard v. Lentz, No. 17-

CV-3037-LRR,

2017 WL 11453698

, at *3 (N.D. Iowa Aug. 8, 2017) (collecting cases). 
Here, the Court finds it appropriate to treat the assertion that Mr. Hollie’s complaint fails 
to state a claim as a denial and concludes that striking it is neither necessary nor appropriate 
under the circumstances. See

id.

 (agreeing with the reasoning of courts that have treated 
failure to state a claim as a denial rather than striking it as an irrelevant or immaterial 

affirmative defense).                                                     
    Fourth, Mr. Hollie argues that Dr. Marsh’s qualified-immunity defense in paragraph 
XXX of the answer should be stricken as legally insufficient because Dr. Marsh is a private 
actor to whom qualified immunity does not apply. [ECF No. 27 at 7–9]. “Only a state actor 
can face § 1983 liability for acting under color of state law,” but under some circumstances, 

“a private entity can qualify as a state actor.” Roberson v. Dakota Boys & Girls Ranch,

42 F.4th 924

, 928 (8th Cir. 2022) (quotation omitted). Whether a private entity qualifies as a 
state actor is a fact-dependent question.

Id.

 “But private individuals, as state actors, are not 
necessarily entitled to assert the defense of qualified immunity in defending section 1983 
claims.” Davis v. Buchanan Cnty.,

11 F.4th 604

, 617 (8th Cir. 2021). Deciding whether a 

private person, as a state actor, may be protected by qualified immunity depends on the 
application  of  “two  factors:  the  ‘general  principles  of  tort  immunities  and  defenses 
applicable at common law, and the reasons we have afforded protection from suit under 
§ 1983.’” Id. (quoting Filarsky v. Delia,

566 U.S. 377, 384

 (2012)). Here, resolving the 
legal sufficiency or insufficiency of Dr. Marsh’s qualified immunity defense is premature. 
Based on the current record, the Court cannot determine whether Dr. Marsh could possibly 
be a state actor such that § 1983 liability could be imposed upon him. Accordingly, the 

Court cannot say that the defense of qualified immunity is legally unavailable and will not 
strike paragraph XXX from Dr. Marsh’s answer.                             
    Finally,  Mr. Hollie  asserts  that  Dr. Marsh’s  affirmative  defense  set  forth  in 
paragraph XXVII should be stricken as legally insufficient because the requirements of

Minn. Stat. § 145.682

 only applies to a malpractice action, and Mr. Hollie has not brought 

a claim for medical malpractice against Dr. Marsh. [ECF No. 27 at 5–6]. Section 145.682 
provides that a plaintiff in a medical malpractice action against a health care provider must 
serve an affidavit of expert review along with the summons and complaint, and within 180 
days after discovery has commenced, the plaintiff must serve another expert affidavit 
setting forth the substance of the facts and opinions to which the expert will testify. See

Minn. Stat. § 145.682

, subds. 2(1), 2(2), 3(1), 4(a).                     
    Mr. Hollie’s complaint does not explicitly mention a medical-malpractice claim. 
Indeed, in his reply memorandum, Mr. Hollie has explicitly stated that he is not bringing a 
medical-malpractice claim. [ECF No. 35 at 5–7]. Nor does the Complaint appear to allege, 
by some other name, that Dr. Marsh’s negligence in providing medical care caused him 

harm. Here, Mr. Hollie has alleged violations of his federal constitutional rights based on 
inadequate medical treatment, the type of claim to which courts apply the deliberate-
indifference standard used in the Eighth Amendment context. Judah v. Ovsak,

550 F. Supp. 3d 687

, 703 (D. Minn. 2021) (citing Mead v. Palmer,

794 F.3d 932, 936

 (8th Cir. 2015), 
and Karsjens v. Lourey,

988 F.3d 1047

, 1052 (8th Cir. 2021)).             
    Still, Dr. Marsh insists that Mr. Hollie has asserted a medical-malpractice claim 

against him. [ECF No. 33 at 11–12]. But Dr. Marsh cites no authority for the proposition 
that the expert-affidavit requirements of

Minn. Stat. § 145.682

 apply to the deliberate-
indifference claim in Mr. Hollie’s complaint. The Court’s own research has revealed no 
case concluding that the provisions of § 145.682 must be complied with by any plaintiff 
alleging constitutionally inadequate medical treatment. Indeed, courts that have applied 

§ 145.682 in similar litigation have done so in the face of state law claims alleging 
negligent medical treatment. See, e.g., Judah, 550 F. Supp. 3d at 707 (applying § 145.682 
to “medical-malpractice-based negligence claims” brought against healthcare providers by 
a civilly committed individual plaintiff). In light of Mr. Hollie’s clarification that he is not 
pursuing a medical negligence or malpractice claim against Dr. Marsh under state law, it 

seems unlikely that the affirmative defense in paragraph XXVII of Dr. Marsh’s answer will 
be of much import in this litigation. However, the Court has been presented with no 
controlling legal authority clearly foreclosing reliance on the expert-affidavit statute in a 
case such as this. Accordingly, although the Court doubts the applicability of the statute, it 
will not strike this defense from Dr. Marsh’s answer at this time.

ORDER

    For the reasons discussed above, IT IS HEREBY ORDERED that Plaintiff’s 
motion to strike affirmative defenses [ECF No. 26] is DENIED.             
Date: November 18, 2022                                                   
                                    s/Katherine Menendez                 
                                  Katherine Menendez                     
                                  United States District Judge

Reference

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