Bishop v. Swanson
U.S. District Court, District of Minnesota
Bishop v. Swanson
Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Merel Evans Bishop, Case No. 12-cv-135 (KMM/DTS)
Plaintiff,
v.
Lori Swanson et al.,
Defendants.
Joseph Goodwin, Case No. 12-cv-180 (KMM/DTS)
Plaintiff,
v.
Lori Swanson et al.,
Defendants.
William McRae, Case No. 12-cv-221 (KMM/DTS)
Plaintiff,
v.
Lori Swanson et al.,
Defendants.
William Mosby, Case No. 12-cv-320 (KMM/DTS)
Plaintiff,
v.
Lori Swanson et al.,
Defendants.
ORDER ADOPTING
REPORT AND RECOMMENDATION
Plaintiffs Merel Evans Bishop, Joseph Goodwin, William McRae, and William
Mosby are detained under orders of civil commitment at the Minnesota Sex Offender
Program (“MSOP”) facility in Moose Lake, Minnesota. Early in 2012, each of them filed
substantially similar, lengthy complaints challenging the conditions of their confinement
and various MSOP practices. All four cases were stayed while a related class action brought
on behalf of all MSOP detainees—Karsjens v. Piper, No. 11-cv-3659—was pending. In
February 2022, a final judgment was entered in Karsjens, and on October 3, 2022, the stay
in each of these cases was lifted.
On January 24, 2023, after screening the complaints pursuant to 28 U.S.C. § 1915, United States Magistrate David T. Schultz issued a Report and Recommendation concluding that the vast majority of the Plaintiffs’ claims should be dismissed, and this Court accepted Judge Schultz’s recommendation in an Order dated March 15, 2023. Bishop v. Swanson, No. 12-cv-135 (KMM/DTS),2023 WL 1786468
(D. Minn. Jan. 24, 2023), R&R adopted by, No. 12-cv-135 (KMM/DTS),2023 WL 2523902
(D. Minn. Mar. 15,
2023). However, some of the Plaintiffs’ claims survived the § 1915 screening. Specifically,
the Court found that:
1. Plaintiffs’ Cause of Action 2 (“COA”) (unreasonable searches and seizures)
could proceed with respect to Plaintiffs’ claims that MSOP policies are
causing impermissible monitoring of Plaintiffs’ calls with their attorneys and
actual property losses;
2. Plaintiffs’ COA 3 (invasion of privacy) could proceed with respect to
Plaintiffs’ claims that MSOP policies are causing impermissible monitoring
of Plaintiffs’ calls with their attorneys;
3. Plaintiffs’ COA 7 (cruel and unusual punishment) could proceed with respect
to Plaintiffs’ claims that do not concern policies and conditions already
addressed in the Karsjens litigation;
4. Plaintiffs’ COA 9 (due process) could proceed with respect to Plaintiffs’
claims that do not raise procedural-due-process concerns regarding policies
and conditions already addressed in the Karsjens litigation; and
5. Plaintiffs’ COA 15 could proceed, which asserts that the totality of the
conditions of confinement violate Plaintiffs’ Fourteenth Amendment rights.
Following that decision, Defendants filed motions to dismiss in each of these cases, arguing
that Plaintiffs’ claims are barred by claim preclusion, issue preclusion, or that the
complaints fail to state a claim.1
These matters are now before the Court on the Order and Report and
Recommendation issued by United States Magistrate Judge David T. Schultz on November
9, 2023 (“November 9th R&R”). [Bishop v. Swanson, No. 12-cv-135 (Dkt. 36); Goodwin
v. Swanson, No. 12-cv-180 (Dkt. 45); McRae v. Swanson, No. 12-cv-221 (Dkt. 45); Mosby
v. Swanson, No. 12-cv-320 (Dkt. 39).] In the November 9th R&R, Judge Schultz
recommends that those motions to dismiss be granted and these four cases be dismissed.
Judge Schultz found that the Plaintiffs’ remaining causes of action are all barred by claim
preclusion, so he declined to reach the parties’ remaining arguments concerning issue
1 The motions in each case are identical. Bishop, 12-cv-135 (Dkt. 29 (Mot.), Dkt. 31
(Mem.)); Goodwin, 12-cv-180 (Dkt. 34 (Mot.), Dkt. 36 (Mem.)); McRae, 12-cv-221 (Dkt. 29
(Mot.), Dkt. 31(Mem.)); Mosby, 12-cv-320 (Dkt. 32 (Mot.), Dkt. 34 (Mem)).
preclusion. On December 7, 2023, Mr. Goodwin and Mr. McRae filed objections to the
R&R.2 Goodwin (Dkt. 46).
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)(3). In the absence of specific 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)). Having carefully reviewed the record in each of these
cases, the Court overrules the objections, accepts the R&R, and grants the Defendants’
motions to dismiss.
I. Causes of Action 2 and 3 – Attorney Call Monitoring and Property Loss
Plaintiffs Goodwin and McRae object to Judge Schultz’s recommendation that their
unreasonable search and seizure and invasion of privacy claims in COA 2 and 3 be
dismissed. Judge Schultz found that these claims are barred by the doctrine of claim
preclusion because they already were or could have been litigated in Karsjens.
Claim preclusion prevents litigation of a claim in a subsequent suit when there has
been a final judgment in the first, “whether or not relitigation of the claim raises the same
issues as the earlier suit.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New
2 The Goodwin Objections bear only the case number for Mr. Goodwin’s case (12-cv-180),
were only filed in that docket, and are signed by Mr. Goodwin. Goodwin (Dkt. 46 at 1, 12). The
Objections also contain an “/s/” signature for William McRae and state that his electronic signature
is provided in place of an actual signature due to a modified lockdown at the MSOP facility.
Defendants correctly assert that neither Plaintiff Merel Bishop nor Plaintiff William Mosby
responded to the Defendants’ motions to dismiss or submitted objections to the November 9th
R&R. Goodwin (Dkt. 47 at 2 n.1).
Hampshire v. Maine, 532 U.S. 742, 748(2001)). Claim preclusion bars relitigation of a claim when: (1) a first suit concluded with a final judgment on the merits; (2) the court in the first suit had jurisdiction; (3) the first and second suits involve the same parties (or their privies); (4) both suits involve the same claims or causes of action; (5) the party asserting the potentially barred claim had a full and fair chance to litigate the issue in the first proceeding. United States v. Bala,948 F.3d 948, 950
(8th Cir. 2020).
Initially, Plaintiffs argue that it is procedurally improper to dismiss the remaining
claims in COA 2 and 3 (and perhaps any of their remaining claims) pursuant to
Rule 12(b)(6). This argument is mistaken. Although claim preclusion is an affirmative
defense, a district court may properly dismiss a complaint under Rule 12(b)(6) when the
applicability of the defense is apparent on the face of the complaint, public records, and
materials embraced by the pleadings. C.H. Robinson Worldwide, Inc. v. Lobrano, 695 F.3d
758, 763–64 (8th Cir. 2012). Here, Judge Schultz evaluated the applicability of the claim
preclusion doctrine based on the allegations in the complaints in each of these cases, the
allegations in the operative pleading in Karsjens, and the final judgment in the Karsjens
case. Such an application of claim preclusion rules on a motion to dismiss is legally
permissible.
Plaintiffs argue that the Court should reject the R&R and deny the motions to
dismiss because their surviving claims in COA 2 and COA 3 concerning monitoring of
legal calls and actual property losses were “never adjudicated in Karsjens.” Goodwin
(Dkt. 46 at 3, 5).3 This objection is overruled for the reasons explained below.
As Judge Schultz explained, the Plaintiffs’ complaints in these cases challenged
MSOP’s alleged policies and practices of monitoring their telephone calls, including calls
with their attorneys. The complaints’ allegations posited that the calls with counsel were
monitored by Defendants via an overhead speaker, by virtue of the phone’s location in a
central corridor where MSOP staff and other residents can overhear conversations, and
because Plaintiffs can overhear staff talking in adjacent offices while on calls with their
attorneys. [November 9th R&R at 6; Bishop (Dkt. 1 (Compl. ¶¶ 141, 153–59)).] The Third
Amended Complaint in the Karsjens class action also included allegations that their phone
calls were monitored, though it did not specify that the monitoring specifically involved
calls with counsel.4 Karsjens, No. 11-cv-3659, Doc. No. 635 ¶ 161. In addition, Plaintiffs
in these cases alleged that they suffered personal property loss, including that the
Defendants’ policies led to the confiscation and destruction of “sheets, towels, and blankets
. . . personal hot pots, razors, computers, DVD players, TV’s and video games with a USB
port[].” Bishop (Dkt. 1 (Compl. ¶ 149)). The Third Amended Complaint in Karsjens
contained similar allegations concerning restrictions on the class members’ access to
3 Plaintiffs do not disagree with Judge Schultz’s conclusion that the first three elements of
claim preclusion are satisfied, and the Court finds that conclusion supported by the record.
[November 9th R&R at 5–6.]
4 The Third Amended Complaint in Karsjens was the operative pleading. Benson v.
Harpstead, No. 22-cv-1601 (ECT/TNL), 2023 WL 4936733, at *8 (D. Minn. June 29, 2023), R&R adopted by, No. 22-cv-1601 (ECT/TNL),2023 WL 4936094
(D. Minn. Aug. 2, 2023).
personal property and confiscation of the same, including computers, books, movies, and
portable media. Karsjens, 11-cv-3659, Doc. No. 635 ¶¶ 173–76.
A claim in the subsequent litigation is treated as the same claim previously litigated
for purposes of claim preclusion when it “arises out of the same nucleus of operative facts
as the prior claim.” Yankton Sioux Tribe v. U.S. Dep’t of Health and Human Servs., 533
F.3d 634, 641(8th Cir. 2008) (quoting Lane v. Peterson,899 F.2d 737, 742
(8th Cir. 1990)). And even when the claims are not the same, “claim preclusion prevents parties from raising issues that could have been raised and decided in a prior action—even if they were not actually litigated.” Lucky Brand Dungarees, Inc. v. Marcel Fashion Gr., Inc.,140 S. Ct. 1589, 1594
(2020). Judge Schultz found that the Plaintiffs’ claims in these complaints are based on the same factual predicates such that application of claim preclusion is appropriate, and to the extent the claims are slightly different, they would nevertheless be precluded because the claims could have been raised before. See Jamison v. Ludeman, No. 11-cv-2136 (PAM/DTS),2023 WL 2088302
, at *2 (D. Minn. Feb. 17,
2023) (dismissing MSOP detainee’s claims based on doctrine of claim preclusion despite
the claims being arguably different than those raised in Karsjens because they could have
been raised during the class action). Having reviewed the record de novo on these matters,
the Court finds no basis to conclude otherwise, and therefore, these claims are subject to
dismissal.
II. Causes of Action 7, 9, and 15
Because Plaintiffs’ objections to the November 9th R&R’s handling of the
remaining claims in COA 7, 9, and 15 are non-specific, do not address the reasoning of the
R&R, or both, they are all subject to clear error review and the Court discusses them
together.
Cause of Action 7
Judge Schultz recommended that Plaintiffs’ surviving claims in COA 7—that
MSOP has imposed punitive confinement policies—be dismissed pursuant to claim
preclusion. Judge Schultz painstakingly compared the allegations from the Third Amended
Complaint in Karsjens to the complaints in these cases and identified the allegations of
punitive practices that were addressed in Karsjens. [November 9th R&R at 8–9.] He then
concluded that these claims were barred because (1) factual differences between the claims
asserted in Karsjens and those advanced these complaints did not avoid claim preclusion;
(2) Plaintiffs claims here could have been raised in Karsjens; and (3) Plaintiffs do not argue
that they were prevented in any way from raising their claims in Karsjens. [Id. at 9.]
Cause of Action 9
The complaints in these cases include allegations challenging the procedural
safeguards that are unavailable in MSOP’s disciplinary hearings. Bishop (Dkt. 1 (Compl.
¶¶ 80–82)). For example, Plaintiffs alleged that they were provided vague and conclusory
written explanations for disciplinary decisions, they had no right to counsel or a staff
assistant to prepare for their hearings, they had no access to investigators, and they did not
receive incident reports until after hearings. Bishop (Dkt. 1 (Compl. ¶ 80)). In the
November 9th R&R, Judge Schultz identified these allegations in Plaintiffs’ complaints
and noted their similarities to the allegations in the Third Amended Complaint in Karsjens,
which alleged that MSOP detainees were unable “to present evidence, cross examine
witnesses, or face their accusers [and] are not given copies of the incident reports or other
evidence that is being used against them to impose disciplinary restrictions.” Karsjens, 11-
cv-3659, Doc. No. 635 ¶ 131. Judge Schultz concluded that the Plaintiffs’ procedural due
process claims in COA 9 in these cases failed for two reasons. First, he concluded that they
“fall alongside the punishment claims in COA 7, because a determination that certain
policies and practice are not punishment necessarily involves a determination that those
policies and practices do not violate procedural due process.” [November 9th R&R at 10
(citing Bell v. Wolfish, 441 U.S. 520, 535 (1979) for the proposition that conditions or
restrictions violate due process when “those conditions amount to punishment of the
detainee”).] Second, Judge Schultz found that claim preclusion bars these claims because
they arise from the same nucleus of operative facts as the claims asserted in Karsjens, or
they could have been asserted in that litigation. [Id.]
Cause of Action 15
Judge Schultz found that the Fourteenth Amendment claim in COA 15 of the
complaints, which is premised on the totality of conditions of the Plaintiffs’ confinement,
was akin to the “wide-ranging attack on the legality of nearly every operational feature of
MSOP” that was challenged in Karsjens. [November 9th R&R at 10–11 (quoting Pittman
v. Swanson, No. 11-cv-3658 (PJS/TNL), 2023 WL 7017769, at *4 (D. Minn. Oct. 25,
2023)).] He then reasoned that “[h]aving already concluded that the conditions Plaintiffs
challenge arise from the same nucleus of operative facts as Karsjens, it follows that the
totality of those conditions also involves the same factual predicate” and the claims in COA
15 were barred even though they presented a new legal theory. [Id. at 11.]
Clear Error Review
As noted, Plaintiffs object to the recommendation that each of these remaining
claims be dismissed. However, they make no specific objections to Judge Schultz’s
recommendations concerning the application of claim preclusion to the remaining claims
in COA 7. Plaintiffs similarly offer no specific argument concerning Judge Schultz’s
conclusion that their remaining procedural due process claims in COA 9 are barred by
claim preclusion. And their argument concerning the recommendation that COA 15 be
dismissed ignores Judge Schultz’s claim preclusion analysis. As a result, the Court finds
that all of these objections are subject to clear error review. Having reviewed the November
9th R&R for clear error with respect to these issues, the Court finds none and accepts the
recommendations that the remaining claims in COA 7, 9, and 15 be dismissed.
III. Facial v. As-Applied Challenge
Finally, in the November 9th R&R, Judge Schultz addressed the Plaintiffs’
argument that their claims avoid claim preclusion because the Plaintiffs are asserting as-
applied challenges to MSOP’s policies as opposed to the facial challenges that were raised
in Karsjens. [November 9th R&R at 11.] Judge Schultz rejected this argument because
Karsjens did, in fact, involve as-applied challenges to the constitutionality of the statutory
scheme under which Plaintiffs are civilly committed. [Id. (citing Karsjens, 11-cv-3659,
Doc. No. 635 ¶ 60).] In addition, he found that Plaintiffs failed to sufficiently plead any as-
applied challenge in these complaints because they failed to assert that any MSOP policies
and practices uniquely affected them; rather, the complaints asserted that the Plaintiffs are
affected by the same MSOP policies and practices applicable to all MSOP detainees. [Id.
at 11–12.] Plaintiffs’ objections to this aspect of the R&R fail to identify any error in Judge
Schultz’s handling of this argument from their response to the motions to dismiss, and
having reviewed the record de novo, the Court finds no basis to disagree with Judge
Schultz’s conclusion.
IV. Order
Based on the foregoing, IT IS HEREBY ORDERED THAT:
1. The R&Rs in these cases [Bishop v. Swanson, No. 12-cv-135 (Dkt. 36); Goodwin
v. Swanson, No. 12-cv-180 (Dkt. 45); McRae v. Swanson, No. 12-cv-221
(Dkt. 45) Mosby v. Swanson, No. 12-cv-320 (Dkt. 39)] are ACCEPTED.
2. The Objections [Goodwin, 12-cv-180 (Dkt. 46)] are OVERRULED.
3. The motions to dismiss [Bishop, 12-cv-135 (Dkt. 29); Goodwin, 12-cv-180
(Dkt. 34); McRae, 12-cv-221 (Dkt. 29); Mosby, 12-cv-320 (Dkt. 32)] are
GRANTED.
4. The following matters are DISMISSED
a. Bishop v. Swanson, No. 12-cv-135;
b. Goodwin v. Swanson, No. 12-cv-180;
c. McRae v. Swanson, No. 12-cv-221;
d. Mosby v. Swanson, No. 12-cv-320.
Let Judgment be entered accordingly.
Date: January 29, 2024 s/ Katherine M. Menendez
Katherine M. Menendez
United States District Judge Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Merel Evans Bishop, Case No. 12-cv-135 (KMM/DTS)
Plaintiff,
v.
Lori Swanson et al.,
Defendants.
Joseph Goodwin, Case No. 12-cv-180 (KMM/DTS)
Plaintiff,
v.
Lori Swanson et al.,
Defendants.
William McRae, Case No. 12-cv-221 (KMM/DTS)
Plaintiff,
v.
Lori Swanson et al.,
Defendants.
William Mosby, Case No. 12-cv-320 (KMM/DTS)
Plaintiff,
v.
Lori Swanson et al.,
Defendants.
ORDER ADOPTING
REPORT AND RECOMMENDATION
Plaintiffs Merel Evans Bishop, Joseph Goodwin, William McRae, and William
Mosby are detained under orders of civil commitment at the Minnesota Sex Offender
Program (“MSOP”) facility in Moose Lake, Minnesota. Early in 2012, each of them filed
substantially similar, lengthy complaints challenging the conditions of their confinement
and various MSOP practices. All four cases were stayed while a related class action brought
on behalf of all MSOP detainees—Karsjens v. Piper, No. 11-cv-3659—was pending. In
February 2022, a final judgment was entered in Karsjens, and on October 3, 2022, the stay
in each of these cases was lifted.
On January 24, 2023, after screening the complaints pursuant to 28 U.S.C. § 1915, United States Magistrate David T. Schultz issued a Report and Recommendation concluding that the vast majority of the Plaintiffs’ claims should be dismissed, and this Court accepted Judge Schultz’s recommendation in an Order dated March 15, 2023. Bishop v. Swanson, No. 12-cv-135 (KMM/DTS),2023 WL 1786468
(D. Minn. Jan. 24, 2023), R&R adopted by, No. 12-cv-135 (KMM/DTS),2023 WL 2523902
(D. Minn. Mar. 15,
2023). However, some of the Plaintiffs’ claims survived the § 1915 screening. Specifically,
the Court found that:
1. Plaintiffs’ Cause of Action 2 (“COA”) (unreasonable searches and seizures)
could proceed with respect to Plaintiffs’ claims that MSOP policies are
causing impermissible monitoring of Plaintiffs’ calls with their attorneys and
actual property losses;
2. Plaintiffs’ COA 3 (invasion of privacy) could proceed with respect to
Plaintiffs’ claims that MSOP policies are causing impermissible monitoring
of Plaintiffs’ calls with their attorneys;
3. Plaintiffs’ COA 7 (cruel and unusual punishment) could proceed with respect
to Plaintiffs’ claims that do not concern policies and conditions already
addressed in the Karsjens litigation;
4. Plaintiffs’ COA 9 (due process) could proceed with respect to Plaintiffs’
claims that do not raise procedural-due-process concerns regarding policies
and conditions already addressed in the Karsjens litigation; and
5. Plaintiffs’ COA 15 could proceed, which asserts that the totality of the
conditions of confinement violate Plaintiffs’ Fourteenth Amendment rights.
Following that decision, Defendants filed motions to dismiss in each of these cases, arguing
that Plaintiffs’ claims are barred by claim preclusion, issue preclusion, or that the
complaints fail to state a claim.1
These matters are now before the Court on the Order and Report and
Recommendation issued by United States Magistrate Judge David T. Schultz on November
9, 2023 (“November 9th R&R”). [Bishop v. Swanson, No. 12-cv-135 (Dkt. 36); Goodwin
v. Swanson, No. 12-cv-180 (Dkt. 45); McRae v. Swanson, No. 12-cv-221 (Dkt. 45); Mosby
v. Swanson, No. 12-cv-320 (Dkt. 39).] In the November 9th R&R, Judge Schultz
recommends that those motions to dismiss be granted and these four cases be dismissed.
Judge Schultz found that the Plaintiffs’ remaining causes of action are all barred by claim
preclusion, so he declined to reach the parties’ remaining arguments concerning issue
1 The motions in each case are identical. Bishop, 12-cv-135 (Dkt. 29 (Mot.), Dkt. 31
(Mem.)); Goodwin, 12-cv-180 (Dkt. 34 (Mot.), Dkt. 36 (Mem.)); McRae, 12-cv-221 (Dkt. 29
(Mot.), Dkt. 31(Mem.)); Mosby, 12-cv-320 (Dkt. 32 (Mot.), Dkt. 34 (Mem)).
preclusion. On December 7, 2023, Mr. Goodwin and Mr. McRae filed objections to the
R&R.2 Goodwin (Dkt. 46).
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)(3). In the absence of specific 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)). Having carefully reviewed the record in each of these
cases, the Court overrules the objections, accepts the R&R, and grants the Defendants’
motions to dismiss.
I. Causes of Action 2 and 3 – Attorney Call Monitoring and Property Loss
Plaintiffs Goodwin and McRae object to Judge Schultz’s recommendation that their
unreasonable search and seizure and invasion of privacy claims in COA 2 and 3 be
dismissed. Judge Schultz found that these claims are barred by the doctrine of claim
preclusion because they already were or could have been litigated in Karsjens.
Claim preclusion prevents litigation of a claim in a subsequent suit when there has
been a final judgment in the first, “whether or not relitigation of the claim raises the same
issues as the earlier suit.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New
2 The Goodwin Objections bear only the case number for Mr. Goodwin’s case (12-cv-180),
were only filed in that docket, and are signed by Mr. Goodwin. Goodwin (Dkt. 46 at 1, 12). The
Objections also contain an “/s/” signature for William McRae and state that his electronic signature
is provided in place of an actual signature due to a modified lockdown at the MSOP facility.
Defendants correctly assert that neither Plaintiff Merel Bishop nor Plaintiff William Mosby
responded to the Defendants’ motions to dismiss or submitted objections to the November 9th
R&R. Goodwin (Dkt. 47 at 2 n.1).
Hampshire v. Maine, 532 U.S. 742, 748(2001)). Claim preclusion bars relitigation of a claim when: (1) a first suit concluded with a final judgment on the merits; (2) the court in the first suit had jurisdiction; (3) the first and second suits involve the same parties (or their privies); (4) both suits involve the same claims or causes of action; (5) the party asserting the potentially barred claim had a full and fair chance to litigate the issue in the first proceeding. United States v. Bala,948 F.3d 948, 950
(8th Cir. 2020).
Initially, Plaintiffs argue that it is procedurally improper to dismiss the remaining
claims in COA 2 and 3 (and perhaps any of their remaining claims) pursuant to
Rule 12(b)(6). This argument is mistaken. Although claim preclusion is an affirmative
defense, a district court may properly dismiss a complaint under Rule 12(b)(6) when the
applicability of the defense is apparent on the face of the complaint, public records, and
materials embraced by the pleadings. C.H. Robinson Worldwide, Inc. v. Lobrano, 695 F.3d
758, 763–64 (8th Cir. 2012). Here, Judge Schultz evaluated the applicability of the claim
preclusion doctrine based on the allegations in the complaints in each of these cases, the
allegations in the operative pleading in Karsjens, and the final judgment in the Karsjens
case. Such an application of claim preclusion rules on a motion to dismiss is legally
permissible.
Plaintiffs argue that the Court should reject the R&R and deny the motions to
dismiss because their surviving claims in COA 2 and COA 3 concerning monitoring of
legal calls and actual property losses were “never adjudicated in Karsjens.” Goodwin
(Dkt. 46 at 3, 5).3 This objection is overruled for the reasons explained below.
As Judge Schultz explained, the Plaintiffs’ complaints in these cases challenged
MSOP’s alleged policies and practices of monitoring their telephone calls, including calls
with their attorneys. The complaints’ allegations posited that the calls with counsel were
monitored by Defendants via an overhead speaker, by virtue of the phone’s location in a
central corridor where MSOP staff and other residents can overhear conversations, and
because Plaintiffs can overhear staff talking in adjacent offices while on calls with their
attorneys. [November 9th R&R at 6; Bishop (Dkt. 1 (Compl. ¶¶ 141, 153–59)).] The Third
Amended Complaint in the Karsjens class action also included allegations that their phone
calls were monitored, though it did not specify that the monitoring specifically involved
calls with counsel.4 Karsjens, No. 11-cv-3659, Doc. No. 635 ¶ 161. In addition, Plaintiffs
in these cases alleged that they suffered personal property loss, including that the
Defendants’ policies led to the confiscation and destruction of “sheets, towels, and blankets
. . . personal hot pots, razors, computers, DVD players, TV’s and video games with a USB
port[].” Bishop (Dkt. 1 (Compl. ¶ 149)). The Third Amended Complaint in Karsjens
contained similar allegations concerning restrictions on the class members’ access to
3 Plaintiffs do not disagree with Judge Schultz’s conclusion that the first three elements of
claim preclusion are satisfied, and the Court finds that conclusion supported by the record.
[November 9th R&R at 5–6.]
4 The Third Amended Complaint in Karsjens was the operative pleading. Benson v.
Harpstead, No. 22-cv-1601 (ECT/TNL), 2023 WL 4936733, at *8 (D. Minn. June 29, 2023), R&R adopted by, No. 22-cv-1601 (ECT/TNL),2023 WL 4936094
(D. Minn. Aug. 2, 2023).
personal property and confiscation of the same, including computers, books, movies, and
portable media. Karsjens, 11-cv-3659, Doc. No. 635 ¶¶ 173–76.
A claim in the subsequent litigation is treated as the same claim previously litigated
for purposes of claim preclusion when it “arises out of the same nucleus of operative facts
as the prior claim.” Yankton Sioux Tribe v. U.S. Dep’t of Health and Human Servs., 533
F.3d 634, 641(8th Cir. 2008) (quoting Lane v. Peterson,899 F.2d 737, 742
(8th Cir. 1990)). And even when the claims are not the same, “claim preclusion prevents parties from raising issues that could have been raised and decided in a prior action—even if they were not actually litigated.” Lucky Brand Dungarees, Inc. v. Marcel Fashion Gr., Inc.,140 S. Ct. 1589, 1594
(2020). Judge Schultz found that the Plaintiffs’ claims in these complaints are based on the same factual predicates such that application of claim preclusion is appropriate, and to the extent the claims are slightly different, they would nevertheless be precluded because the claims could have been raised before. See Jamison v. Ludeman, No. 11-cv-2136 (PAM/DTS),2023 WL 2088302
, at *2 (D. Minn. Feb. 17,
2023) (dismissing MSOP detainee’s claims based on doctrine of claim preclusion despite
the claims being arguably different than those raised in Karsjens because they could have
been raised during the class action). Having reviewed the record de novo on these matters,
the Court finds no basis to conclude otherwise, and therefore, these claims are subject to
dismissal.
II. Causes of Action 7, 9, and 15
Because Plaintiffs’ objections to the November 9th R&R’s handling of the
remaining claims in COA 7, 9, and 15 are non-specific, do not address the reasoning of the
R&R, or both, they are all subject to clear error review and the Court discusses them
together.
Cause of Action 7
Judge Schultz recommended that Plaintiffs’ surviving claims in COA 7—that
MSOP has imposed punitive confinement policies—be dismissed pursuant to claim
preclusion. Judge Schultz painstakingly compared the allegations from the Third Amended
Complaint in Karsjens to the complaints in these cases and identified the allegations of
punitive practices that were addressed in Karsjens. [November 9th R&R at 8–9.] He then
concluded that these claims were barred because (1) factual differences between the claims
asserted in Karsjens and those advanced these complaints did not avoid claim preclusion;
(2) Plaintiffs claims here could have been raised in Karsjens; and (3) Plaintiffs do not argue
that they were prevented in any way from raising their claims in Karsjens. [Id. at 9.]
Cause of Action 9
The complaints in these cases include allegations challenging the procedural
safeguards that are unavailable in MSOP’s disciplinary hearings. Bishop (Dkt. 1 (Compl.
¶¶ 80–82)). For example, Plaintiffs alleged that they were provided vague and conclusory
written explanations for disciplinary decisions, they had no right to counsel or a staff
assistant to prepare for their hearings, they had no access to investigators, and they did not
receive incident reports until after hearings. Bishop (Dkt. 1 (Compl. ¶ 80)). In the
November 9th R&R, Judge Schultz identified these allegations in Plaintiffs’ complaints
and noted their similarities to the allegations in the Third Amended Complaint in Karsjens,
which alleged that MSOP detainees were unable “to present evidence, cross examine
witnesses, or face their accusers [and] are not given copies of the incident reports or other
evidence that is being used against them to impose disciplinary restrictions.” Karsjens, 11-
cv-3659, Doc. No. 635 ¶ 131. Judge Schultz concluded that the Plaintiffs’ procedural due
process claims in COA 9 in these cases failed for two reasons. First, he concluded that they
“fall alongside the punishment claims in COA 7, because a determination that certain
policies and practice are not punishment necessarily involves a determination that those
policies and practices do not violate procedural due process.” [November 9th R&R at 10
(citing Bell v. Wolfish, 441 U.S. 520, 535 (1979) for the proposition that conditions or
restrictions violate due process when “those conditions amount to punishment of the
detainee”).] Second, Judge Schultz found that claim preclusion bars these claims because
they arise from the same nucleus of operative facts as the claims asserted in Karsjens, or
they could have been asserted in that litigation. [Id.]
Cause of Action 15
Judge Schultz found that the Fourteenth Amendment claim in COA 15 of the
complaints, which is premised on the totality of conditions of the Plaintiffs’ confinement,
was akin to the “wide-ranging attack on the legality of nearly every operational feature of
MSOP” that was challenged in Karsjens. [November 9th R&R at 10–11 (quoting Pittman
v. Swanson, No. 11-cv-3658 (PJS/TNL), 2023 WL 7017769, at *4 (D. Minn. Oct. 25,
2023)).] He then reasoned that “[h]aving already concluded that the conditions Plaintiffs
challenge arise from the same nucleus of operative facts as Karsjens, it follows that the
totality of those conditions also involves the same factual predicate” and the claims in COA
15 were barred even though they presented a new legal theory. [Id. at 11.]
Clear Error Review
As noted, Plaintiffs object to the recommendation that each of these remaining
claims be dismissed. However, they make no specific objections to Judge Schultz’s
recommendations concerning the application of claim preclusion to the remaining claims
in COA 7. Plaintiffs similarly offer no specific argument concerning Judge Schultz’s
conclusion that their remaining procedural due process claims in COA 9 are barred by
claim preclusion. And their argument concerning the recommendation that COA 15 be
dismissed ignores Judge Schultz’s claim preclusion analysis. As a result, the Court finds
that all of these objections are subject to clear error review. Having reviewed the November
9th R&R for clear error with respect to these issues, the Court finds none and accepts the
recommendations that the remaining claims in COA 7, 9, and 15 be dismissed.
III. Facial v. As-Applied Challenge
Finally, in the November 9th R&R, Judge Schultz addressed the Plaintiffs’
argument that their claims avoid claim preclusion because the Plaintiffs are asserting as-
applied challenges to MSOP’s policies as opposed to the facial challenges that were raised
in Karsjens. [November 9th R&R at 11.] Judge Schultz rejected this argument because
Karsjens did, in fact, involve as-applied challenges to the constitutionality of the statutory
scheme under which Plaintiffs are civilly committed. [Id. (citing Karsjens, 11-cv-3659,
Doc. No. 635 ¶ 60).] In addition, he found that Plaintiffs failed to sufficiently plead any as-
applied challenge in these complaints because they failed to assert that any MSOP policies
and practices uniquely affected them; rather, the complaints asserted that the Plaintiffs are
affected by the same MSOP policies and practices applicable to all MSOP detainees. [Id.
at 11–12.] Plaintiffs’ objections to this aspect of the R&R fail to identify any error in Judge
Schultz’s handling of this argument from their response to the motions to dismiss, and
having reviewed the record de novo, the Court finds no basis to disagree with Judge
Schultz’s conclusion.
IV. Order
Based on the foregoing, IT IS HEREBY ORDERED THAT:
1. The R&Rs in these cases [Bishop v. Swanson, No. 12-cv-135 (Dkt. 36); Goodwin
v. Swanson, No. 12-cv-180 (Dkt. 45); McRae v. Swanson, No. 12-cv-221
(Dkt. 45) Mosby v. Swanson, No. 12-cv-320 (Dkt. 39)] are ACCEPTED.
2. The Objections [Goodwin, 12-cv-180 (Dkt. 46)] are OVERRULED.
3. The motions to dismiss [Bishop, 12-cv-135 (Dkt. 29); Goodwin, 12-cv-180
(Dkt. 34); McRae, 12-cv-221 (Dkt. 29); Mosby, 12-cv-320 (Dkt. 32)] are
GRANTED.
4. The following matters are DISMISSED
a. Bishop v. Swanson, No. 12-cv-135;
b. Goodwin v. Swanson, No. 12-cv-180;
c. McRae v. Swanson, No. 12-cv-221;
d. Mosby v. Swanson, No. 12-cv-320.
Let Judgment be entered accordingly.
Date: January 29, 2024 s/ Katherine M. Menendez
Katherine M. Menendez
United States District Judge Reference
- Status
- Unknown