Hollie v. Essentia Health Moose Lake Clinic

U.S. District Court, District of Minnesota December 22, 2023

Trial Court Opinion

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                


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

   Plaintiff,                                                           

v.

ORDER

Essentia Health Moose Lake Clinic, et al.,

Defendants.

On February 1, 2022, Shannon Hollie, who is involuntarily civilly committed to
the Minnesota Sex Offender Program’s facility in Moose Lake, Minnesota, filed this
lawsuit against Defendants Essentia Health Moose Lake Clinic (“Essentia”) and
Dr. Benjamin Marsh. Mr. Hollie alleges that Defendants provided inadequate medical
treatment for his erectile dysfunction following a prostatectomy and cancer treatment.
Specifically, Mr. Hollie claims that Dr. Marsh violated his constitutional rights when
Dr. Marsh told Mr. Hollie that he would not perform a penile implant procedure to treat
Mr. Hollie’s condition given Mr. Hollie’s history of being a sex offender. In addition,
Mr. Hollie alleges that Dr. Marsh falsified entries in his medical records. Mr. Hollie
brings claims against both Defendants under federal and state law.
On July 27, 2023, United States Magistrate Judge Leo I. Brisbois issued a Report
and Recommendation (“R&R”) concerning the Defendants’ motions for summary
judgment. Judge Brisbois recommended that the motions be granted and this action be
dismissed. Mr. Hollie filed timely objections to the R&R, the Defendants responded, and
the matter is now pending before this Court for a final decision. As explained below, the
Court accepts the R&R, overrules Mr. Hollie’s objections, and grants the Defendants’
motions for summary judgment. In addition, the Court denies a motion Mr. Hollie filed in

which he asks the Court to exclude several declarations and exhibits filed by the
Defendants from the summary judgment record.
BACKGROUND
Mr. Hollie’s Medical Treatment
As explained in the R&R,1 Mr. Hollie was diagnosed with and treated for prostate

cancer. Mr. Hollie had a prostatectomy surgery in 2018, but he experienced erectile
dysfunction (“ED”) during his recovery process. After the provider who had been treating
Mr. Hollie passed away, his urology care was transferred to Dr. Marsh, who saw
Mr. Hollie at the Essentia Health Moose Lake Clinic. Dr. Marsh referred Mr. Hollie to an
oncologist for concerns with elevated PsA levels, and the oncologist eventually told

Mr. Hollie he would refer him back to Dr. Marsh for urology treatment concerns,
including his post-operative ED. In March 2020, Dr. Marsh told Mr. Hollie that options
for treatment of ED would be discussed after follow-up cancer treatment had been
completed.
In June 2021, Dr. Marsh saw Mr. Hollie regarding incontinence, difficulties

emptying his bladder, and other concerns, and Dr. Marsh scheduled a diagnostic

1 The R&R thoroughly and accurately discusses the evidence concerning the
material facts relating to Mr. Hollie’s claims. Mr. Hollie’s objections contain no specific
disagreements with the facts as found by Judge Brisbois in the R&R, and the Court finds
no error in Judge Brisbois’ recitation of the relevant factual landscape.
cystoscopy. During a follow-up appointment, Dr. Marsh discussed Mr. Hollie’s treatment
options for his ED concerns, including taking medication in either a pill or liquid form or
receiving a penile implant. Mr. Hollie expressed interest in the implant procedure, and

Dr. Marsh said he would look into setting up the procedure. In August 2021, Dr. Marsh
performed a cystoscopy procedure on Mr. Hollie, and afterward, Mr. Hollie asked again
about the implant. However, Dr. Marsh told Mr. Hollie that he may want to get a
different urologist because Dr. Marsh was not comfortable performing the procedure for
Mr. Hollie given his history of being a sex offender. Meanwhile, Mr. Hollie received a

referral to a different urologist, “Dr. Johnson,” from a physician who was treating him for
his diabetes.
Dr. Marsh directed Mr. Hollie to raise his concerns with the ethics committee and
Mr. Hollie was told to return to Essentia in six months for a follow-up regarding his PsA
levels. Eventually, in November 2021, after Mr. Hollie contacted Essentia to ask about

the status of the ethics committee review, Essentia informed Mr. Hollie that it could not
compel its physicians to perform a surgery. Further, Essentia told Mr. Hollie that to
pursue the issue further, he would need to deal with Essentia’s legal team. Mr. Hollie
initiated this lawsuit in February 2022 and continued to seek treatment with a new
urologist through requests with MSOP Health Services. Mr. Hollie eventually saw

Dr. Johnson at St. Luke’s Hospital for urology needs, but did not discuss his ED or
available treatment options. He is considering seeking the penile implant through the
Veteran’s Administration and completed preliminary paperwork.
Summary Judgment Motions and the R&R
The Defendants filed motions for summary judgment in April 2023. [Doc.
Nos. 100, 108.] In May, Mr. Hollie filed his “Motion in Limine” and a memorandum in

opposition to Essentia’s motion for summary judgment. [Doc. Nos. 118, 127.] Judge
Brisbois took the summary judgment motions under advisement based on the written
submissions and issued the R&R on July 27, 2023.
In the R&R, Judge Brisbois concluded that Defendants were entitled to summary
judgment on the merits of all of Mr. Hollie’s federal claims. First, Judge Brisbois

examined Mr. Hollie’s claims, brought pursuant to

42 U.S.C. § 1983

, that Defendants
violated his constitutional rights under the Eighth and Fourteenth Amendments by being
deliberately indifferent to his serious medical needs and for discriminating against him
based on his status as a committed sex offender. Judge Brisbois found that a reasonable
jury could not find in Mr. Hollie’s favor on these claims against Dr. Marsh because

§ 1983 only applies to state actors, and there was no evidence that Dr. Marsh would be
deemed a state actor under the circumstances of this case. [Doc. No. 146 at 10–12.]
Specifically, he explained
[T]here is . . . no proof of a contract and no proof of an
ongoing relationship between the MSOP and Dr. Marsh.
Instead, it appears only that those civilly committed patients
within the MSOP, such as [Mr. Hollie], were taken to medical
facilities, like Essentia . . ., on an as-needed basis for medical
treatment not otherwise available within the MSOP, and the
doctors and health care professionals who treated
[Mr. Hollie], like Dr. Marsh, did so in a private facility and
exercised independent medical judgment. There is simply
nothing in the record to suggest that Dr. Marsh acted in
concert with state officials, or that his conduct is otherwise
chargeable to the state.

[Id. at 12.]
Second, Judge Brisbois found that Essentia was entitled to summary judgment on
Mr. Hollie’s § 1983 claims. He explained that Essentia could not be held liable under a
respondeat superior theory where Dr. Marsh had not been found to have committed an
underlying violation. [Id.] Further, Judge Brisbois found that the evidence established
that Essentia was not Dr. Marsh’s employer. [Id. at 12–13.] And he concluded that even
if Dr. Marsh was held liable under § 1983, as a matter of law, a private employer may not
be vicariously liable under § 1983. [Id. at 13.]
Next, Judge Brisbois found that Defendants were entitled to summary judgment on

Mr. Hollie’s claims under

42 U.S.C. § 1981.2

 Citing cases that have held § 1981 forbids 
racial discrimination in the making of private and public contracts, but does not cover 
other forms of discrimination, Judge Brisbois found that Mr. Hollie could not prevail on 
his claims under the statute because he “only alleged facts related to discrimination on the 
basis of his convicted sex offender status.” [Id. at 13–14 (citing St. Francis College v. Al-

Khazraji,

481 U.S. 604, 609

 (1987) and Anooya v. Hilton Hotels Corp.,

733 F.2d 48, 50

 
(7th Cir. 1984)).] Further, Judge Brisbois determined that Essentia could not be held 
vicariously liable under § 1981 because Essentia is not Dr. Marsh’s employer and there 
was no evidence of an underlying violation of the statute by Dr. Marsh. [Id. at 14 n.2.] 


   2 Mr. Hollie’s discrimination claims were based on his allegations that Defendants 
refused to perform the implant procedure and that Dr. Marsh altered or falsified his 
medical records based on his sex offender status. [Doc. No. 1 ¶¶ 1, 2(a); R&R at 5–6.] 
   Judge Brisbois next considered Mr. Hollie’s claims under Titles II and III of the 
ADA, and agreed with the Defendants that those claims fail because there was no 
evidence that Mr. Hollie is an “individual with a disability” within the meaning of the 

ADA. [Id. at 14–15.] Judge Brisbois explained his reasoning as follows: “while Plaintiff 
asserts that he is disabled because of erectile dysfunction, he has offered no indication as 
to how this alleged disorder rendered him disabled for purposes of the ADA.” [Id. at 15.] 
And Judge Brisbois found Essentia could not be held vicariously liable under the ADA as 
well based on an analysis similar to that used in the § 1983 context. [Id. at 15 n.3.] 

   Finally, Judge Brisbois noted that Mr. Hollie asserted claims under Minnesota 
state law, including under the Rehabilitation Act, the Minnesota Health Records Act, and

Minn. Stat. § 541.076.3

 However, Judge Brisbois did not reach the merits of these claims. 
Instead, he determined, under

28 U.S.C. § 1367

(c)(3), that with all of the federal claims
subject to summary judgment, the Court should decline to exercise supplemental

jurisdiction over the state law claims and that they should be dismissed without prejudice.
[Id. at 15–18.]
DISCUSSION
I. Motion in Limine
After the Defendants moved for summary judgment, Mr. Hollie filed a motion

captioned as a “Motion in Limine.” In it, he argued that several declarations submitted in
support of the Defendants’ motions are inadmissible and should not be considered by the

3 Mr. Hollie’s complaint also references the Minnesota Human Rights Act and the
Minnesota Government Data Practices Act. [Doc. No. 1 ¶¶ 2(a)–(b), 36.]
Court. [Doc. No. 119.] One of the submissions Mr. Hollie seeks to exclude from
consideration is the Declaration of defense counsel, Tracy A Schramm, to which several
exhibits are attached, including excerpts of Mr. Hollie’s deposition and copies of

Mr. Hollie’s medical records. [Schramm Decl. & Exs. A–D, Doc. No. 103.4] In addition,
Mr. Hollie argues that the Court should strike the Declaration of defense counsel, Bryon
G. Ascheman, attached to which is a copy of Dr. Marsh’s responses to Mr. Hollie’s
second set of discovery requests. [Ascheman Decl. & Ex. A, Doc. No. 111.] Finally,
Mr. Hollie seeks to exclude the Declaration of Kristine Olson, a Senior Director of

Physician and Professional Services at Essentia. Ms. Olson states that as of October 14,
2018, Dr. Marsh was not employed by Essentia. She explains that Dr. Marsh is employed
by The Duluth Clinic, Ltd. [Olson Decl., Doc. No. 112.]
Mr. Hollie argues that Federal Rule of Civil Procedure 56 requires that materials
filed in support of a motion for summary judgment must be admissible at trial. Further,

he argues that all three defense declarations should be stricken because the declarants are
not competent to offer testimony on the matters included in their declarations. As
explained below, the Court disagrees.
Mr. Hollie is correct that a plaintiff opposing summary judgment may contest the
evidence used to support a defendant’s motion, but he elides a key aspect of Rule 56. The

Rule provides that a party may object that the material cited by the movant to support a
fact “cannot be presented in a form that would be admissible in evidence.” See Fed. R.

4 Another copy of the Schramm Declaration was filed in error at Doc. No. 105,
which Mr. Hollie also referenced in his “Motion in Limine.”
Civ. P. 56(c)(2). Further, when a party files a declaration to support a motion for
summary judgment, it “must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the . . . declarant is competent to testify on the

matters stated.” Fed. R. Civ. P. 56(c)(4).
The Schramm and Olson Declarations plainly satisfy these requirements.5
Attorney Schramm states that the exhibits attached to the declaration are true and correct
copies. Notwithstanding Mr. Hollie’s suggestion to the contrary, there is no indication in
the record that Attorney Schramm lacks personal knowledge of those facts or is unable to

competently establish the foundation required for consideration of these exhibits on
summary judgment. Nor does Mr. Hollie persuasively contend that those exhibits cannot
be presented in admissible form at trial. Fed. R. Civ. P. 56(c)(2). The same is true of the
Olson Declaration. Ms. Olson explains the basis for her personal knowledge regarding
Dr. Marsh’s employment status and she states facts regarding the same that would be

admissible in evidence at trial. Like Attorney Schramm, Ms. Olson was competent to
provide her declaration testimony regarding the fact that Dr. Marsh is not an Essentia
employee, and was employed by a different entity. Therefore, the Court finds it was
proper for Judge Brisbois to have considered these materials in preparing the R&R,6 and

5 The Court notes that neither Judge Brisbois’ R&R, nor this Court’s conclusions,
rely upon any of the information found in the exhibit attached to the Ascheman
Declaration. Consequently, whether it is excluded or not is of no consequence to the
resolution of the Defendants’ summary judgment motions.
6 See R&R at 1–6 (citing exhibits A–D to the Schramm Decl. throughout);

id.

 at 2 
(citing Olson Decl. ¶ 4).                                                 
it is appropriate for this Court to consider them in its review of Mr. Hollie’s objections. 
The Court denies Mr. Hollie’s request to exclude them.                    
   Mr. Hollie also argues that the Schramm Declaration’s seventh paragraph, which 

states that Mr. Hollie neither identified expert witnesses nor produced expert affidavits 
pursuant to

Minn. Stat. § 145.682

, is irrelevant. Therefore, he contends, the entire
declaration should be stricken. Mr. Hollie offers no support for his position that striking
the declaration is appropriate under these circumstances. The Court declines to strike the
Schramm Declaration based on Mr. Hollie’s argument that one paragraph contains

information that is irrelevant to any claim or defense in the litigation.
Next, citing Federal Rule of Evidence 901(a), Mr. Hollie argues that the exhibits
attached to the Schramm Declaration are not admissible7 for summary judgment purposes
because they have not been properly authenticated. Again, the Court disagrees. The
exhibits at issue are Mr. Hollie’s deposition and copies of pertinent medical records from

Mr. Hollie’s treatment with Dr. Marsh. The excerpts of the deposition are accompanied
by the court reporter’s certificate and Mr. Hollie’s notarized signature page. [Doc.
No. 103-1 at 32 (reporter’s certificate), 47 (plaintiff’s signature page).] The medical
records are excerpted from a certified copy of over 2,200 pages of Mr. Hollie’s medical
records from Essentia covering the period of September 5, 2008, through March 21,

2022, a complete copy of which was provided to Mr. Hollie. [Doc. No. 92-1; Doc.
No. 124-1.] Mr. Hollie does not argue that the excerpts from his deposition contain

7 Mr. Hollie argues that the exhibits should be excluded from consideration
because the Schramm Declaration itself should be stricken. However, because the Court
finds no basis for striking the declaration, this request is denied.
inaccurate information or that the medical records produced are not from the certified
copy of the records maintained by Essentia. Thus, the Court has no difficulty concluding
that these materials are what the Schramm Declaration represents them to be. See Watkins

Inc. v. McCormick & Co., Inc., Case No. 15-cv-2688 (DSD/ECW),

2023 WL 1777474

, at 
*5 (D. Minn. Feb. 6, 2023) (“To authenticate a document, the proponent need only prove 
a rational basis for the claim that the document is what the proponent asserts it to be.”) 
(quoting United States v. Long,

857 F.2d 436, 442

 (8th Cir. 1988)).       
   For these reasons, Mr. Hollie’s “Motion in Limine” is denied.        

II.  Objections to the R&R                                                
   A. Legal Standard                                                    
   The Court reviews de novo any portion of the R&R to which specific objections 
are made.

28 U.S.C. § 636

(b)(1); D. Minn. LR 72.2(b). In the absence of objections, the 
Court reviews the R&R for clear error. Nur v. Olmsted County,

563 F. Supp. 3d 946

, 949 

(D. Minn. 2021) (citing Fed. R. Civ. P. 72(b) and Grinder v. Gammon,

73 F.3d 793, 795

 
(8th Cir. 1996) (per curiam)). District court judges “may accept, reject, or modify in 
whole or in part, the findings or recommendations made by the magistrate judge.”

28 U.S.C. § 636

(b)(1); Fed. R. Civ. P. 72(b)(3). Because Mr. Hollie is self-represented, his 
objections are entitled to a liberal construction. Erickson v. Pardus,

551 U.S. 89, 94

 

(2007). Having carefully reviewed the R&R, the Court agrees with its conclusion that the 
Defendants are entitled to summary judgment.                              
   B. Analysis                                                          
   Mr. Hollie objects to the recommendation that Defendants be granted summary 
judgment on his § 1983 claims relating to inadequate medical care and lack of equal 

protection. First, he objects to the conclusion that Dr. Marsh cannot be considered a state 
actor for purposes of

42 U.S.C. § 1983

 and argues that he was denied constitutionally 
adequate follow-up care for his prostate cancer.8 [Doc. No. 147 at 9, 11–12.] The Court 
agrees with Judge Brisbois’ conclusion that the summary judgment record does not 
contain evidence from which a reasonable jury could conclude that Dr. Marsh was a state 

actor. The undisputed evidence shows that Dr. Marsh treated Mr. Hollie at a non-MSOP 
facility for medical issues that MSOP medical personnel do not handle. There was no 
evidence that Dr. Marsh is under contract with the State of Minnesota or MSOP to 
provide medical care to MSOP patients. And there was no evidence indicating that 
Minnesota or MSOP officials control or otherwise influence Dr. Marsh’s medical 

decision-making generally or his specific decision not to perform the penile implant 
procedure that Mr. Hollie requested to treat his ED.                      
   The Supreme Court has held that treatment provided by physicians under contract 
with a state may be fairly attributable to the state for purposes of a § 1983 claim. See 
West v. Atkins,

487 U.S. 42

, 54–56 (1988). However, the facts of this case are different. 

This case is like others where courts have granted summary judgment to private medical 

   8 To the extent Mr. Hollie’s assertion that he was denied constitutionally adequate 
follow-up care for his prostate cancer is related to anything other than the alleged 
improper refusal to perform the penile implant to treat his ED condition, such a claim is 
not properly before the Court because Mr. Hollie’s complaint provides no notice of such 
a claim. [Doc. No. 1 ¶¶ 2, 25–29, 34, 36, 39.]                            
providers who cannot be considered state actors for purposes of § 1983 claims because 
they had no contractual relationship with the state, provided services at a private facility, 
and exercised independent medical judgment. See, e.g., Bevins v. Becker Cnty., Minn., 

No. 16-cv-4340 (NEB/BRT),

2019 WL 397322

, at *5 (D. Minn. Jan. 31, 2019) (granting 
summary judgment motions of private physician defendants where they had no 
contractual relationship with the jail where the plaintiff was in custody and there was no 
evidence from the plaintiff indicating that physicians “failed to utilize their independent 
medical judgment”); Griffis v. Medford, No. 05-3040,

2007 WL 2752373

, at *6 (W.D.

Ark. Sept. 29, 2007) (finding that a “private physician treating an inmate at a private
facility utilizing his independent medical judgment is not answerable to the state and does
not act under color of state law for purposes of § 1983” and granting defendant’s motion
for summary judgment). Because there is no evidence to support a finding that Dr. Marsh
is a “state actor” for purposes of § 1983, the Court finds that Dr. Marsh is entitled to

summary judgment on Mr. Hollie’s claims against him under that statute.
Mr. Hollie has not specifically objected to Judge Brisbois’ conclusion that the
§ 1981 claim against Dr. Marsh fails because that statute protects only against racial
discrimination, and Mr. Hollie alleged that he was discriminated against because he is a
sex offender. Similarly, Mr. Hollie does not appear to specifically object to Judge

Brisbois’ conclusions that the complaint fails to state a claim that Essentia is vicariously
liable under either § 1983 or § 1981. The Court therefore reviews these aspects of the
R&R for clear error, but finds none.
Mr. Hollie next objects that the R&R “incorrectly holds there is no evidence
Plaintiff is sufficiently qualified as an individual with a disability under either Title [II or
III of the ADA].” [Doc. No. 147 at 14.] This objection is overruled. As discussed, Judge

Brisbois recommended the ADA claims be dismissed because Mr. Hollie’s alleged
disability was premised upon his ED condition,9 but he offered no indication of how this
rendered him disabled for purposes of the ADA. Mr. Hollie points to no evidence
undermining Judge Brisbois’ conclusion. The cases Mr. Hollie cites in his objection are
inapposite.10

None of Mr. Hollie’s remaining objections provide a basis for disagreeing with the
R&R. Mr. Hollie contends that his § 1983 equal protection claim against Dr. Marsh
should be allowed to go to trial because Dr. Marsh’s stated reason for refusing to perform
the implant procedure was a pretext for racially motivated discrimination. [Doc. No. 147
at 12 n.12.] Similarly, he argues that the R&R erred in recommending summary judgment

on his § 1981 claim because he has, in fact, alleged a prima facie case of racial
discrimination. [Id. at 13.] However, Mr. Hollie does not point to any evidence in the

9 Mr. Hollie’s deposition testimony suggested that the basis for his allegation that
he was disabled was because of ED. [Schramm Decl., Ex. A at 64–65.] However, the
Court notes that he did not suggest either Defendant discriminated against him because of
that condition. Rather, he alleged that Defendants discriminated against him based on his
history of being a sex offender. This Court is aware of no authority that one’s status as a
sex offender can legally qualify as a disability for purposes of the ADA.
10 For example, Mr. Hollie cites Ireland v. Anderson, in which the court found that
the plaintiffs stated a claim under the ADA because one of the civilly committed
individuals added to the pleadings was alleged to have a mental disability that
substantially limited his ability to work and previously qualified for Social Security
benefits. Case No. 3:13-cv-03,

2015 U.S. Dist. LEXIS 133974

, at *9 (D.N.D. Sept. 30,
2015). That has no relevance to Mr. Hollie’s claimed disability.
summary judgment record to support his assertion that Dr. Marsh “and other Essentia
Health Supervisors frequently made racially discriminating remarks about black inmates
residing at MSOP. . . .” [Id. at 12 n.12] In addition, the Court finds that Mr. Hollie’s

complaint alleged only that he was discriminated against as “a class of one” or on the
basis of his status as a sex offender. He did not allege that he received unequal treatment
because of his race. Accordingly, the allegations of racial discrimination introduced for
the first time in his objections to the R&R are not properly before the Court.
Mr. Hollie raises several additional objections to the R&R that do not address the

Magistrate Judge’s reasoning in recommending that the Defendants’ motions for
summary judgment be granted. For example, Mr. Hollie argues that the R&R incorrectly
holds that because he is civilly committed, he does not have a right to constitutionally
adequate medical care. He argues that the R&R “fails to legitimately explain how or why
allowing Defendants to deny Hollie adequate medical attention for his serious medical

needs would threaten the safety and security of the facility, other patients, or the public.”
[Doc. No. 147 at 6, 7.] Similarly, Mr. Hollie contends that the R&R incorrectly holds that
he has no protected interest under the Fourteenth Amendment in receiving adequate
medical attention, and he argues that the R&R fails to explain how the Defendants’
decisions are reasonably related to legitimate governmental interests. [Id. at 8–11.]

Mr. Hollie also contends that the R&R failed to ground its analysis in methods and
procedures of science, citing Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579

 (1993). [Id. at 18.] These objections and others11 misread the R&R and attribute to it 
reasons for dismissal of Mr. Hollie’s claims that are not found within the R&R itself. For 
example, Judge Brisbois did not find that Mr. Hollie has no right to constitutionally 

adequate medical care because he is an involuntarily civilly committed individual, and 
the R&R includes no analysis or discussion of expert evidence that would necessitate a 
reference to the standards laid out in Daubert. Therefore, the Court does not address these 
issues further and they are overruled as they provide no basis for disagreeing with the 
R&R’s conclusions.                                                        

   Finally, Mr. Hollie objects to Judge Brisbois’ recommendation that the Court 
decline to exercise supplemental jurisdiction over his state claims. However, Mr. Hollie 
has not provided any persuasive reason why this Court should address the merits of those 
state claims if all of the federal law claims are subject to summary judgment. The Court 
has already concluded that Defendants are entitled to summary judgment on all of 

Mr. Hollie’s federal claims. And the Court agrees with Judge Brisbois’ conclusion that 
declining to exercise supplemental jurisdiction over Mr. Hollie’s state law claims 
pursuant to

28 U.S.C. § 1367

(c) is appropriate under the circumstances.

ORDER

   For the reasons discussed above, IT IS HEREBY ORDERED THAT:          

1.  Plaintiff’s Motion in Limine [Doc. No. 118] is DENIED.              
2.  The Report and Recommendation [Doc. No. 146] is ACCEPTED.           

   11 Mr. Hollie suggests that Defendants repackaged arguments made in support of 
previously denied motions to dismiss and are attempting to relitigate merits issues that 
have already been decided against them. But neither Defendant filed a motion to dismiss. 
3.  Plaintiff’s Objections [Doc. No. 147] are OVERRULED.                
4.  Defendants’ Motions for Summary Judgment [Doc. Nos. 100, 108] are   
   GRANTED.                                                             

5.  Plaintiff’s

42 U.S.C. § 1983

 claims against Defendants are DISMISSED with 
   prejudice.                                                           
6.  Plaintiff’s

42 U.S.C. § 1981

 claim against Defendants is DISMISSED with 
   prejudice.                                                           
7.  Plaintiff’s claims under Title II and Title III of the Americans with Disabilities Act 

   against Defendants are DISMISSED with prejudice.                     
8.  Plaintiff’s vicarious liability claim against Defendant Essentia Health Moose Lake 
   Clinic based on Defendant Marsh’s alleged federal law violates is DISMISSED 
   with prejudice.                                                      
9.  Pursuant to

28 U.S.C. § 1367

(c), the Court declines to exercise supplemental 

   jurisdiction over Plaintiff’s Minnesota state-law claims and those claims are, 
   therefore, DISMISSED without prejudice.                              
   Let Judgment be entered accordingly.                                 


Date: December 22, 2023          s/Katherine Menendez                     
                               Katherine Menendez                       
                               United States District Court

Trial Court Opinion

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                


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

   Plaintiff,                                                           

v.

ORDER

Essentia Health Moose Lake Clinic, et al.,

Defendants.

emptying his bladder, and other concerns, and Dr. Marsh scheduled a diagnostic

examined Mr. Hollie’s claims, brought pursuant to

42 U.S.C. § 1983

Mr. Hollie’s claims under

42 U.S.C. § 1981.2

 Citing cases that have held § 1981 forbids 
racial discrimination in the making of private and public contracts, but does not cover 
other forms of discrimination, Judge Brisbois found that Mr. Hollie could not prevail on 
his claims under the statute because he “only alleged facts related to discrimination on the 
basis of his convicted sex offender status.” [Id. at 13–14 (citing St. Francis College v. Al-

Khazraji,

481 U.S. 604, 609

 (1987) and Anooya v. Hilton Hotels Corp.,

733 F.2d 48, 50

 
(7th Cir. 1984)).] Further, Judge Brisbois determined that Essentia could not be held 
vicariously liable under § 1981 because Essentia is not Dr. Marsh’s employer and there 
was no evidence of an underlying violation of the statute by Dr. Marsh. [Id. at 14 n.2.] 


   2 Mr. Hollie’s discrimination claims were based on his allegations that Defendants 
refused to perform the implant procedure and that Dr. Marsh altered or falsified his 
medical records based on his sex offender status. [Doc. No. 1 ¶¶ 1, 2(a); R&R at 5–6.] 
   Judge Brisbois next considered Mr. Hollie’s claims under Titles II and III of the 
ADA, and agreed with the Defendants that those claims fail because there was no 
evidence that Mr. Hollie is an “individual with a disability” within the meaning of the 

ADA. [Id. at 14–15.] Judge Brisbois explained his reasoning as follows: “while Plaintiff 
asserts that he is disabled because of erectile dysfunction, he has offered no indication as 
to how this alleged disorder rendered him disabled for purposes of the ADA.” [Id. at 15.] 
And Judge Brisbois found Essentia could not be held vicariously liable under the ADA as 
well based on an analysis similar to that used in the § 1983 context. [Id. at 15 n.3.] 

   Finally, Judge Brisbois noted that Mr. Hollie asserted claims under Minnesota 
state law, including under the Rehabilitation Act, the Minnesota Health Records Act, and

Minn. Stat. § 541.076.3

 However, Judge Brisbois did not reach the merits of these claims. 
Instead, he determined, under

28 U.S.C. § 1367

(c)(3), that with all of the federal claims
subject to summary judgment, the Court should decline to exercise supplemental

captioned as a “Motion in Limine.” In it, he argued that several declarations submitted in
support of the Defendants’ motions are inadmissible and should not be considered by the

Rule provides that a party may object that the material cited by the movant to support a
fact “cannot be presented in a form that would be admissible in evidence.” See Fed. R.

id.

 at 2 
(citing Olson Decl. ¶ 4).                                                 
it is appropriate for this Court to consider them in its review of Mr. Hollie’s objections. 
The Court denies Mr. Hollie’s request to exclude them.                    
   Mr. Hollie also argues that the Schramm Declaration’s seventh paragraph, which 

states that Mr. Hollie neither identified expert witnesses nor produced expert affidavits 
pursuant to

Minn. Stat. § 145.682

2022, a complete copy of which was provided to Mr. Hollie. [Doc. No. 92-1; Doc.
No. 124-1.] Mr. Hollie does not argue that the excerpts from his deposition contain

Inc. v. McCormick & Co., Inc., Case No. 15-cv-2688 (DSD/ECW),

2023 WL 1777474

, at 
*5 (D. Minn. Feb. 6, 2023) (“To authenticate a document, the proponent need only prove 
a rational basis for the claim that the document is what the proponent asserts it to be.”) 
(quoting United States v. Long,

857 F.2d 436, 442

 (8th Cir. 1988)).       
   For these reasons, Mr. Hollie’s “Motion in Limine” is denied.        

II.  Objections to the R&R                                                
   A. Legal Standard                                                    
   The Court reviews de novo any portion of the R&R to which specific objections 
are made.

28 U.S.C. § 636

(b)(1); D. Minn. LR 72.2(b). In the absence of objections, the 
Court reviews the R&R for clear error. Nur v. Olmsted County,

563 F. Supp. 3d 946

, 949 

(D. Minn. 2021) (citing Fed. R. Civ. P. 72(b) and Grinder v. Gammon,

73 F.3d 793, 795

 
(8th Cir. 1996) (per curiam)). District court judges “may accept, reject, or modify in 
whole or in part, the findings or recommendations made by the magistrate judge.”

28 U.S.C. § 636

(b)(1); Fed. R. Civ. P. 72(b)(3). Because Mr. Hollie is self-represented, his 
objections are entitled to a liberal construction. Erickson v. Pardus,

551 U.S. 89, 94

 

(2007). Having carefully reviewed the R&R, the Court agrees with its conclusion that the 
Defendants are entitled to summary judgment.                              
   B. Analysis                                                          
   Mr. Hollie objects to the recommendation that Defendants be granted summary 
judgment on his § 1983 claims relating to inadequate medical care and lack of equal 

protection. First, he objects to the conclusion that Dr. Marsh cannot be considered a state 
actor for purposes of

42 U.S.C. § 1983

 and argues that he was denied constitutionally 
adequate follow-up care for his prostate cancer.8 [Doc. No. 147 at 9, 11–12.] The Court 
agrees with Judge Brisbois’ conclusion that the summary judgment record does not 
contain evidence from which a reasonable jury could conclude that Dr. Marsh was a state 

actor. The undisputed evidence shows that Dr. Marsh treated Mr. Hollie at a non-MSOP 
facility for medical issues that MSOP medical personnel do not handle. There was no 
evidence that Dr. Marsh is under contract with the State of Minnesota or MSOP to 
provide medical care to MSOP patients. And there was no evidence indicating that 
Minnesota or MSOP officials control or otherwise influence Dr. Marsh’s medical 

decision-making generally or his specific decision not to perform the penile implant 
procedure that Mr. Hollie requested to treat his ED.                      
   The Supreme Court has held that treatment provided by physicians under contract 
with a state may be fairly attributable to the state for purposes of a § 1983 claim. See 
West v. Atkins,

487 U.S. 42

, 54–56 (1988). However, the facts of this case are different. 

This case is like others where courts have granted summary judgment to private medical 

   8 To the extent Mr. Hollie’s assertion that he was denied constitutionally adequate 
follow-up care for his prostate cancer is related to anything other than the alleged 
improper refusal to perform the penile implant to treat his ED condition, such a claim is 
not properly before the Court because Mr. Hollie’s complaint provides no notice of such 
a claim. [Doc. No. 1 ¶¶ 2, 25–29, 34, 36, 39.]                            
providers who cannot be considered state actors for purposes of § 1983 claims because 
they had no contractual relationship with the state, provided services at a private facility, 
and exercised independent medical judgment. See, e.g., Bevins v. Becker Cnty., Minn., 

No. 16-cv-4340 (NEB/BRT),

2019 WL 397322

, at *5 (D. Minn. Jan. 31, 2019) (granting 
summary judgment motions of private physician defendants where they had no 
contractual relationship with the jail where the plaintiff was in custody and there was no 
evidence from the plaintiff indicating that physicians “failed to utilize their independent 
medical judgment”); Griffis v. Medford, No. 05-3040,

2007 WL 2752373

, at *6 (W.D.

on his § 1981 claim because he has, in fact, alleged a prima facie case of racial
discrimination. [Id. at 13.] However, Mr. Hollie does not point to any evidence in the

2015 U.S. Dist. LEXIS 133974

Mr. Hollie also contends that the R&R failed to ground its analysis in methods and
procedures of science, citing Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579

 (1993). [Id. at 18.] These objections and others11 misread the R&R and attribute to it 
reasons for dismissal of Mr. Hollie’s claims that are not found within the R&R itself. For 
example, Judge Brisbois did not find that Mr. Hollie has no right to constitutionally 

adequate medical care because he is an involuntarily civilly committed individual, and 
the R&R includes no analysis or discussion of expert evidence that would necessitate a 
reference to the standards laid out in Daubert. Therefore, the Court does not address these 
issues further and they are overruled as they provide no basis for disagreeing with the 
R&R’s conclusions.                                                        

   Finally, Mr. Hollie objects to Judge Brisbois’ recommendation that the Court 
decline to exercise supplemental jurisdiction over his state claims. However, Mr. Hollie 
has not provided any persuasive reason why this Court should address the merits of those 
state claims if all of the federal law claims are subject to summary judgment. The Court 
has already concluded that Defendants are entitled to summary judgment on all of 

Mr. Hollie’s federal claims. And the Court agrees with Judge Brisbois’ conclusion that 
declining to exercise supplemental jurisdiction over Mr. Hollie’s state law claims 
pursuant to

28 U.S.C. § 1367

(c) is appropriate under the circumstances.

ORDER

   For the reasons discussed above, IT IS HEREBY ORDERED THAT:          

1.  Plaintiff’s Motion in Limine [Doc. No. 118] is DENIED.              
2.  The Report and Recommendation [Doc. No. 146] is ACCEPTED.           

   11 Mr. Hollie suggests that Defendants repackaged arguments made in support of 
previously denied motions to dismiss and are attempting to relitigate merits issues that 
have already been decided against them. But neither Defendant filed a motion to dismiss. 
3.  Plaintiff’s Objections [Doc. No. 147] are OVERRULED.                
4.  Defendants’ Motions for Summary Judgment [Doc. Nos. 100, 108] are   
   GRANTED.                                                             

5.  Plaintiff’s

42 U.S.C. § 1983

 claims against Defendants are DISMISSED with 
   prejudice.                                                           
6.  Plaintiff’s

42 U.S.C. § 1981

 claim against Defendants is DISMISSED with 
   prejudice.                                                           
7.  Plaintiff’s claims under Title II and Title III of the Americans with Disabilities Act 

   against Defendants are DISMISSED with prejudice.                     
8.  Plaintiff’s vicarious liability claim against Defendant Essentia Health Moose Lake 
   Clinic based on Defendant Marsh’s alleged federal law violates is DISMISSED 
   with prejudice.                                                      
9.  Pursuant to

28 U.S.C. § 1367

(c), the Court declines to exercise supplemental 

   jurisdiction over Plaintiff’s Minnesota state-law claims and those claims are, 
   therefore, DISMISSED without prejudice.                              
   Let Judgment be entered accordingly.                                 


Date: December 22, 2023          s/Katherine Menendez                     
                               Katherine Menendez                       
                               United States District Court

Reference

Status: Unknown