Allan v. Minnesota Department of Human Services

U.S. District Court, District of Minnesota January 19, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

PETER ALLAN, RUSSELL JOHN Case No.: 0:20-cv-01980-SRN-TNL
HATTON, MICHAEL BENSON,
STEVEN HAWKINS, RUSSELL LYNN
NORTON, DANNY STONE, PATRICK
OTTEN, RYAN WHITE, KENNETH
DELANEY, DAVID HAMILTON,
KENNETH DAYWITT, DENNIS
WHITE, MAIKIJAH HAKEEM,
DANIEL A. WILSON, and JOSEPH
FRANCIOSA THOMAS,
MEMORANDUM, DECISION AND
Plaintiffs, ORDER

MINNESOTA DEPARTMENT OF
HUMAN SERVICES, JODI
HARPSTEAD in her official capacity as
Commissioner of Department of Human
Services, MARSHALL SMITH, in his
official capacity as Chief Executive
Director of Direct Care and Treatment for
the Minnesota Sex Offender Program,
NANCY JOHNSTON, in her official
capacity as the Minnesota Sex Offender
Program Executive Director, and KEVIN
MOSER, in his official capacity as the
Moose Lake Facility Director for the
Minnesota Sex Offender Program,

Defendants.

Elizabeth A. Nielsen, Erick G. Kaardal, and William F. Mohrman, Mohrman, Kaardal &
Erickson, P.A. 150 S 5th St Ste 3100, Minneapolis, MN 55402, for Plaintiff

Brandon L. Boese and Sarah Doktori, Office of the Minnesota Attorney General 445
Minnesota Street, Suite 1100, St. Paul, MN 55101, for Defendants.
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Motion for Summary Judgment [Doc. No. 92]

filed by all Defendants, seeking dismissal of the Second Amended Complaint (“SAC”)
[Doc. No. 63]. Based on a review of the files, submissions, and proceedings herein, and for
the reasons stated below, the Court GRANTS Defendant’ Motion for Summary Judgment
in its entirety.
I. BACKGROUND
A. Factual Background
This case concerns certain policies implemented during the early days and height of

the COVID-19 pandemic by the Minnesota Department of Human Services (“MDHS”) for
incarcerated individuals in the Minnesota Sex Offender Program (“MSOP”) located in two
treatment hospitals in Moose Lake and St. Peter, Minnesota.
The U.S. Department of Health and Human Services (“HHS”) declared a nationwide
public health emergency relating to COVID-19 on January 31, 2020. The first COVID-19

case in Minnesota was reported on March 6, 2020, and on March 13 of that year, Minnesota
Governor Tim Walz declared a peacetime emergency. The Minnesota peacetime
emergency was terminated on July 1, 2021, while HHS continued the national public health
emergency until May 11, 2023.
Prior to March 13, 2020, MSOP recognized “spiritual groups” under Policy 420-
5300, governing spiritual practices. (See SAC, Ex. A. at 1.)1 This policy allowed regular

spiritual gatherings amongst the respective spiritual groups of MSOP, subject to a variety
of rules. Each group, led by a spiritual resource volunteer (“SRV”), required permission
from MSOP before engaging in new spiritual group activities including ceremonies. (Id.
at 2.) The SRV was also required to be present to provide leadership whenever a
“controlled item” was used in a spiritual ceremony. (Id. at 3.)
When seeking to form a new spiritual group, MSOP clients were required to submit

information to the facility volunteer services coordinator (“VSC”).2 (Id. at 2.) When six
clients each submitted a form with the requisite information expressing interest in a
potential spiritual group, the VSC would begin recruiting an SRV, although groups of
fewer than six clients could be considered by the VSC. (Id.) If a spiritual group ceased
having an SRV, the facility director and facility clinical director could approve the group

to continue to meet for a period of up to 90 days, with staff supervision, but after 90 days
with no volunteer, MSOP would suspend the group. (Id. at 3.)
MSOP clients were generally allowed to participate in spiritual group ceremonies
and events, unless either on a restricted status (in High Security Area, Pre-Hearing
Restriction, or out of behavioral control) or if they violated an MSOP policy affecting

1 The most recent version of Policy 420-5300 was issued on April 4, 2023. (See
Declaration of Erick G. Kaardal (“Kaardal Decl.”) Ex. 2.)
2 Beginning in February 2020 and continuing through today, the VSC is David
Clanaugh. (Declaration of David Clanaugh (“Clanaugh Decl.”) [Doc. No. 97] ¶ 1.)
program safety and security or abused spiritual group time or studies. (Id. at 4-5.) Policy
420-5300 also expressly reserved MSOP’s ability to limit religious observance for

operational reasons, providing that “[w]hen necessary for the safety, security or orderly
operation of the facility, the facility director/designee, in consultation with the facility
clinical director, [could] limit attendance at, or temporarily discontinue a spiritual group
ceremony or study.” (Id. at 5.) No part of Policy 420-5300 expressly dealt with video
visits or live-streaming.3
Under the pre-COVID version of Policy 420-5300, MSOP clients were allowed to

obtain personal spiritual items through submitting a client request form for approval, while
groups could also obtain group items stored by MSOP. (SAC, Ex. A. at 6-7.) Both
individuals and spiritual groups could also obtain herbs and minerals for use in spiritual
activity. (Id. at 7-8.)
On March 13, 2020, MSOP began to implement restrictions in line with Governor

Walz’s order. According to MSOP Health Services Director Nicole Boder, MSOP policy
was formulated by health experts, administrators, and other MDHS officials, based on best
practices advocated by the Centers for Disease Control (“CDC”) and the Minnesota
Department of Health (“MDH”). (See Declaration of Nicole Boder (“Boder Decl.”) [Doc.
No. 96], ¶¶ 3-7; Declaration of Brandon Boese (“Boese Decl.”) [Doc. No. 95], Ex. 16

3 The current version of Policy 420-5300 does not discuss video visits or live-
streaming. (Kaardal Decl. Ex. 2.) Instead, MSOP’s Computer Internet Streaming policy,
issued on November 7, 2023, deals with these issues and incorporates Policy 420-5300 by
reference. (See Kaardal Decl. Ex. 1.)
(“Deposition of Nicole Boder” or “Boder Dep.”) 14:3-7).) Two relevant restrictions to
reduce the spread of COVID-19 were implemented: (1) the suspension of in-person visits

between program clients and outside visitors of any kind (later relaxed to allow some in-
person visits depending on COVID-19 prevalence and community spread); and (2)
restrictions on interaction between MSOP Moose Lake’s eight units. (Boder Decl. at ¶ 7.)
Also on March 13, 2020, MSOP issued a memorandum to MSOP clients, informing
them that as a precautionary measure against COVID, MSOP would close its visiting room
and suspend in-person meetings between clients and members of the public, including

suspension of all spiritual programming with outside attendees, until the resumption of
normal operations. (SAC, Ex. B.)
On April 30, 2020, Boder issued a memorandum to all MSOP clients, updating them
on COVID-19 related policies. (Boder Decl. Ex. 2.) Boder informed clients that MSOP
falls under the CDC’s category of “congregate living facilities,” with effects on best

practices for COVID-19 prevention and mitigation. (Boder Decl. Ex. 2.) Included in the
memorandum were recommendations to “[i]dentify services and activities (such as meal
programs, religious services, and exercise rooms and programs) that might need to be
limited or temporarily discontinued [to maintain safe operations]” and to “[l]imit the
presence of non-essential volunteers and visitors in shared areas, when possible[.]” (Id.)

Outside MSOP facilities, on June 5, 2020, Governor Walz issued Executive Order
20-74, which allowed in-person religious ceremonies to resume with certain restrictions.
(SAC, Ex. C, at 5.) MSOP facilities remained under the March 13, 2020, suspension of
spiritual gatherings and spiritual volunteer visits, including after the Plaintiffs initially filed
suit in this matter on September 16, 2020 [Doc. No. 1].

According to the operative complaint, as of April 1, 2022, the strict quarantine at
MSOP’s Moose Lake facility had ceased, “as incarcerated clients eat together, work
together and work-out together across units and visitors are being allowed. The cafeteria,
library and gym are open.” (SAC ¶ 44.) However, spiritual group policy had allegedly
not been restored to its pre-COVID-19 status quo. (Id.)
While the pre-COVID-19 policy was not restored immediately, as COVID-19’s

severity waned, MSOP began allowing SRVs to return to the facility, at first with masking
and vaccination requirements and later without them. (Boder Dep. 9:18–25.) For instance,
noncontact visiting by outsiders was restored beginning on September 1, 2020. (Id.
18:125.) In January and February 2021, MSOP clients received their first and second doses
of the COVID-19 exam. (Boder Decl. ¶ 13.) On April 1, 2022, MSOP restarted visiting

for all units. (Boder Dep. 20:1–6.)
According to Boder, MSOP “returned to normalcy” at the end of HHS’ COVID-19
emergency, which was lifted on May 11, 2023. (See Boder Dep. 10:1–6, 26:25–27:8;
Boder Decl. ¶ 14; HHS Secretary Xavier Becerra Statement on End of the COVID-19
Public Health Emergency, U.S. Dep’t of Health and Human Services,

https://www.hhs.gov/about/news/2023/05/11/hhs-secretary-xavier-becerra-statement-on-
end-of-the-covid-19-public-health-emergency.html.) According to Defendants, COVID-
19-era restrictions on outside visitors and internal movement of clients among MSOP units
have been entirely lifted and the pre-COVID-19 status quo has been restored. (Clanaugh
Decl. ¶ 16 (“Today, there are no COVID-specific policies in place that limit a client’s
ability to practice their faith.”); Boder Decl. ¶ 14 (“Other than quarantining individual

clients who may test positive for COVID-19, there are no COVID-specific movement or
visitor restrictions at MSOP.”).)
B. Procedural History
On September 16, 2020, Plaintiffs filed a complaint [Doc. No. 1] alleging that
MSOP’s limitations on spiritual group practices and gatherings violated the U.S.
Constitution and Religious Land Use and Institutionalized Persons Act (“RLUIPA”),

arguing that they suffered irreparable injury, and seeking declaratory and injunctive relief
including a temporary restraining order.
On April 21, 2021, Plaintiffs filed their first amended complaint (“FAC”) [Doc. No.
29]. The FAC maintained the first complaint’s allegations concerning MSOP’s COVID-
19-related limitations on spiritual group practices and gatherings, while adding a third

claim that MSOP’s limitations on the use of tobacco—which were unrelated to COVID-19
and predated the pandemic—violated the Constitution and RLUIPA due to its restrictions
on an important element of Native American religious practices. (Id. ¶¶ 45-134.)
Defendants responded by filing a motion to dismiss pursuant to Rules 12(b)(1) and (6) of
the Federal Rules of Civil Procedure [Doc. No. 30] on May 21, 2021.

The parties subsequently entered negotiations. After compromise and settlement, on
March 4, 2022, the parties stipulated to the dismissal of the FAC’s Count III, relating to
tobacco [Doc. No. 52].
On April 1, 2022, Plaintiffs filed the SAC. The SAC did not raise new grounds for
relief, but rather added additional arguments and context to the original claims that the

pandemic-era restrictions on spiritual group activity violated RLUIPA and the
Constitution. Defendants filed their answer on June 24, 2022 [Doc. No. 65]. In response,
Defendants filed the motion now before this Court.
II. DISCUSSION
A. Standard of Review
The Constitution limits federal courts' jurisdiction to actual “Cases” or
“Controversies.” U.S. Const. art. III, § 2, cl. 1. If “‘the issues presented are no longer

live,’. . . a case or controversy under Article III no longer exists because the litigation has
become moot.” Brazil v. Ark. Dep't of Human Servs.,

892 F.3d 957, 959

 (8th Cir. 2018) 
(quoting Already, LLC v. Nike, Inc.,

568 U.S. 85, 91

 (2013)). In general, a case becomes 
moot “when changed circumstances already provide the requested relief and eliminate the 
need for court action.”  Hillesheim v. Holiday Stationstores, Inc.,

903 F.3d 786, 791

 (8th 

Cir. 2018) (citing McCarthy v. Ozark Sch. Dist.,

359 F.3d 1029, 1035

 (8th Cir. 2004)). If 
an action becomes moot, the court must dismiss it for lack of jurisdiction.  Ali v. Cangemi,

419 F.3d 722, 723

 (8th Cir. 2005).                                        
Plaintiffs’ allegations must also be properly before the Court under the operative 
complaint.  See Green v. Park, Civ. No. 14-0857 (ADM/BRT),

2015 U.S. Dist. LEXIS 147436

 at *7 n.3 (D. Minn. Oct. 9, 2015) (citing Cutrera v. Bd. of Supervisors,

429 F.3d 108, 113

 (5th Cir. 2005), adopted by

2015 WL 6667722

 (D. Minn. Oct. 30, 2015).  Where 
the complaint raises allegations that, although phrased in broad and general terms, apply to 
specific instances of conduct, the court will read these allegations in the context of the 
complaint as a whole.  See Young America's Found. v. Kaler,

14 F.4th 879

, 889 n.9 (8th 

Cir. 2021) (citing Warmington v. Bd. of Regents,

998 F.3d 789, 795

 (8th Cir. 2021)).  The 
Court will not “read in a new claim in order to confer standing” on a summary judgment 
motion.

Id.

B. Analysis
Defendants argue that the Plaintiffs’ claims are moot, as the pre-COVID-19
spiritual-practices policy status quo has been effectively restored at MSOP, and that

Plaintiffs’ other allegations constitute an improper attempt to amend their complaint by
way of their summary judgment response. (Defs’ Br. [Doc. No. 94] at 15-16; Defs’ Reply
Br. [Doc. No. 103] at 2-5.) Moreover, Defendants argue that these policies do not violate
either RLUIPA or the Constitution. (Defs’ Br. at 16-33.)
Plaintiffs do not dispute that their central complaints concerning MSOP’s COVID-

19-era restrictions have been mooted by the removal of these restrictions. (Pls’ Br. [Doc.
No. 102] at 5, 10-12.) Instead, Plaintiffs argue that they seek prospective equitable relief
as to three remaining policies: (1) the minimum-size requirement of six to be a recognized
spiritual group; (2) video-visiting by spiritual resource volunteers; and (3) live-streaming.
Plaintiffs argue that these MSOP policies violate RLUIPA and the Constitution. (Pls’ Br.

at 12-28.)
The three policies asserted by Plaintiffs as violative of RLUIPA and the Constitution
are not properly before this Court. Plaintiffs did not allege that the pre-COVID version of
Policy 420-5300 violated any of Plaintiffs’ constitutional or statutory rights. Rather,
Plaintiffs alleged that each spiritual group was “unable to gather, as they had previously
to the Department’s March 13th directive, to practice their spiritual beliefs.” (See SAC

¶¶ 20-40) (emphasis added). The SAC states that “[p]rior to March 13, 2020, the
Department recognized spiritual groups by its Policy 420-5300 and allowed regular and
weekly spiritual gatherings amongst the respective Spiritual Groups of MSOP and allowed
outside spiritual leaders and volunteers to lead spiritual gatherings.” (Id. ¶ 14.) In their
motion for preliminary injunctive relief, Plaintiffs sought to restore pre-COVID status quo
rather than challenge those practices. (Pls’ TRO Br. [Doc. No. 4] at 1.) Even Plaintiffs

have admitted that the vast majority of the claims they brought are moot.
Defendants’ allegedly violative policies are also not clearly named in the SAC.
Plaintiffs do not allege any problem with the minimum group size under Policy 420-5300
or with possible restrictions on video visits or live-streaming. “Live-streaming” is
mentioned several times, but only as a possibly less restrictive way to “allow the Plaintiffs

to exercise their respective religious or spiritual ceremonies…when volunteers are
unavailable to physically visit the MSOP facility or if a volunteer fails to meet certain
criteria as a volunteer…to physically visit the MSOP facility.” (SAC ¶¶ 87, 101, 143.)
Live-streaming was not provided for under the pre-COVID-19 version of Policy 420-5300.
As the Eighth Circuit held in Young America's Found. v. Kaler, even where elements

of the complaint “could be read to include a general [constitutional] challenge… ‘the
complaint should be read as a whole,’” with general language referring in context to the
particular thrust of the complaint. See Young America's Found.,

14 F.4th at 889

 n.9.  Here, 
as there, where an alleged injury was not rooted in the original basis for the lawsuit, the 
Plaintiffs  had  “ample  opportunity  to  amend  their  complaint  accordingly[,]”  and  are 
expected to do so, as Plaintiffs are “master[s] of the complaint.”

Id.

 (citing Winfrey v. City 

of Forrest City,

882 F.3d 757, 758

(8th Cir. 2018)). Plaintiffs did not do so. Allegations
concerning the supposed constitutional or statutory failings of the pre-March 13, 2020,
version of Policy 420-5300 are not at issue in this case, and it would be improper for the
Court to reach them.
In their briefing and at oral argument, Plaintiffs also argue that Policy 420-5300’s
spiritual group size requirement has not been restored to the pre-COVID-19 status quo, as

the requirement that six MSOP clients seek to form a spiritual group before recruitment of
an SRV automatically began was previously measured across both the Moose Lake and St.
Peter facilities, but now must be met within one MSOP facility. (Pls’ Br. at 18.) This
alleged change was corroborated by deponent Carol Clark, the St. Peter Volunteer Services
Coordinator, who was not a 30(b)(6) deponent tasked with expressing departmental policy.

(See Kaardal Decl. Ex. 11 (“Clark Dep.”) 6:16–17.)
However, Clark’s testimony also made clear that existing spiritual groups—such as
those belonged to by Plaintiffs—have not been disbanded because their numbers have
fallen below six. (Clark Dep. 9:10–15:1.) Moreover, Clark’s testimony does not constitute
an official statement of MSOP policy, and the current language of Policy 420-5300 allows

MSOP to consider allowing groups smaller than six. (Kaardal Decl. Ex. 2 at 2.) In either
case, Plaintiffs’ allegation was not noticed in the SAC, nor did Plaintiffs seek to amend
their complaint to make specific allegations as to this issue. Plaintiffs cannot proceed to
trial supported solely by a single argument that was not straightforwardly raised until its
briefing in opposition to the instant motion.

The gravamen of Plaintiffs’ suit is moot, as the COVID-19 pandemic has subsided
along with related policies. The issues raised in Plaintiffs’ opposition to the motion for
summary judgment are distinct from those raised in the operative complaint. While
MSOP’s existing policies concerning spiritual groups may or may not abide by RLUIPA
and the Constitution, the Court will not reach the merits of these questions as this is
properly the subject of a separate litigation. As such, the Court grants summary judgment

to the Defendants.
III. CONCLUSION
Based on the submissions and the entire file and proceedings herein, IT IS
HEREBY ORDERED that Defendants’ Motion for Summary Judgment [Doc. No. 92] is
GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY

Dated: January 19, 2024 /s/ Susan Richard Nelson .
SUSAN RICHARD NELSON
United States District Judge