Larson v. Minnesota Sex Offender Program, the

U.S. District Court, District of Minnesota February 6, 2024

Trial Court Opinion

                   UNITED STATES DISTRICT COURT                          
                      DISTRICT OF MINNESOTA                              
HOLLIS J. LARSON,                                                        
                                      Civil No. 13-1074 (JRT/DJF)        
                       Plaintiff,                                        

v.                                                                       
                                   ORDER ADOPTING REPORT AND             
THE MINNESOTA SEX OFFENDER              RECOMMENDATION                   
PROGRAM (MSOP), et al.,                                                  

                      Defendants.                                        

    Hollis J. Larson, MSOP, 1111 Highway 73, Moose Lake, MN 55767, pro se 
    Plaintiff.                                                           

    Benjamin  C.  Johnson,  MINNESOTA  ATTORNEY  GENERAL’S  OFFICE,  445 
    Minnesota Street, Suite 1400, St. Paul, MN 55401, for Defendants.    


    Plaintiff Hollis J. Larson is civilly committed to the Minnesota Sex Offender Program 
(“MSOP”).  He filed a complaint against 47 named defendants and an “unknown number 
of  John  and  Jane  Does”  (collectively  “MSOP”)  challenging  his  treatment  and  the 
conditions at MSOP.  Larson alleges constitutional violations and state law tort claims 
under

42 U.S.C. § 1983

 and the United States Constitution.  MSOP moved to dismiss the 
complaint and Magistrate Judge Dulce J. Foster recommended that MSOP’s motion be 
granted.  Larson objected to the Report and Recommendation (“R&R”).  After review, the 
Court will adopt Magistrate Judge Foster’s R&R and dismiss Larson’s complaint with 
prejudice.                                                                
                          BACKGROUND                                     
I.   FACTS                                                                
    Plaintiff Hollis J. Larson is civilly committed to the Minnesota Sex Offender Program 

(“MSOP”) and residing at MSOP’s facility in Moose Lake, Minnesota.  (Am. Compl. at 3 ¶ 
A, Nov. 10, 2022, Docket No. 30.)  Over the past decade, Larson has alleged various 
constitutional rights violations and mistreatment under

42 U.S.C. § 1983

while he has

been committed at the MSOP facility. (See Compl., May 6, 2013, Docket No. 1.)
Broadly, Larson alleges violations under the Eighth Amendment, Fourth
Amendment, Fourteenth Amendment, state tort law, and other claims unsupported by
legal citation. (See generally Am. Compl.) He claims that MSOP violated the Eighth

Amendment by subjecting him to routine punishment which he states was caused or
influenced by his mental illness. (Id. at 25, 28 ¶¶ 52, 68.) He asserts that MSOP’s
“unclothed visual body searches” violated his Fourth Amendment rights against
unreasonable searches and seizures. (Id. at 20 ¶ 25.) In addition, Larson cites infliction

of punishment without due process, inhumane treatment, cruel and unusual punishment,
and other allegations as violations of the Fourteenth Amendment. (Id. at 40, 42, 44 ¶¶
151, 162–64, 182.)
Specifically, Larson alleges that there is a “plan, program, practice, and policy

whereby MSOP detainees … who protest … or who do not ‘participate’ in ‘treatment’” are
subjected to disciplinary actions. (Id. at 14–15 ¶ 2.) These allegations span 168
paragraphs of Larson’s complaint and result in ten causes of action against 47 named
defendants and other unknown “John and Jane Doe’s” in both their individual and official
capacities. (Id. at 1.)

While the majority of Larson’s complaint constitutes general, system wide
grievances, he alleges one specific incident of misconduct perpetuated by Defendants Jon
Hibbard and Joanne Christenson. (Id. at 27–29 ¶¶ 62–79.) The incident began with
Larson’s attempt to voluntarily enter the High Security Area (“HSA”)–a punitive

segregation unit at MSOP on July 20, 2011. (Id.) He describes his behavior as an attempt
to “isolate himself from the constant torture that is MSOP’s only ‘treatment.’” (Id. at 27
¶ 62.) In his attempt to enter the HSA, Larson claims that Hibbard and Christenson

confronted him and, “[w]ithout need, provocation, or justification” Hibbard assaulted
Larson by putting him in a “bear hug,” throwing him to the floor, and landing on top of
him. (Id. at 27–28 ¶¶ 63, 65.)
During this incident, Larson tried to free himself by “thrashing around,” during

which his head “may have inadvertently come into contact with [D]efendant Hibbard’s
head.” (Id. at 28 ¶¶ 70–71 (emphasis in original).) Larson claims that he was held down
and handcuffed by Hibbard, Christenson, and others, which resulted in “large and severe
abrasions … and possibly cracked ribs.” (Id. at ¶¶ 72–73.) Further, Larson accuses

Hibbard of “stomping down” on the back of his left ankle while he was already
“immobilized and ‘under control,’’’ and accuses Christenson of “mounting” his face, which
made it difficult for Larson to breathe. (Id. at 29 ¶¶ 75–77.)
Later that day, a licensed practical nurse, evaluated and documented Larson’s
injuries. (Id. at 13, 29 ¶¶ 42, 80.) Larson both claims no further treatment and a seven-

day delay in treatment of his open wounds. (Id. at 29 ¶¶ 80–81.) Finally, he asserts that
his injuries were improperly diagnosed because he did not receive a “complete
examination by a doctor” which caused over four weeks of continuous pain and trauma.
(Id. at 30 ¶¶ 83–84.)

Larson claims that as a result of this altercation, he was kept in HSA and then placed
on Administrative Restriction (“AR”) and transferred to Unit Omega, the “Behavioral
Therapy Unit.” (Id. at 30, 32–33 ¶¶ 86, 103, 107.) The explanation given for his AR

placement was for an alleged assault on Hibbard and for the “safety and security of the
facility” which would expire upon the completion of an investigation of the incident. (Id.
at 33 ¶¶ 107–08.) Larson filed various requests for review of his AR designation, none of
which were successful until the investigation was complete after approximately two

months. (Id. at 34–37 ¶¶ 115, 119, 127, 131, 135.)
II. PROCEDURAL HISTORY
Larson originally filed his complaint against the MSOP on May 6, 2013, alleging
various forms of mistreatment and civil rights violations. (See generally Compl.) The case

was stayed pending the disposition of Karsjens et al. v. Minnesota Department of Human
Services, et al., No. 11-3659 (“Karsjens”) because Larson was a member of the class
represented in that case. After the resolution in Karsjens, and in anticipation of the stay
being lifted, Larson expressed his intent to prosecute his claims further. (Order, June 29,
2022, Docket No. 18; Notice of Intent to Prosecute, July 13, 2022, Docket No. 19.) He
concurrently filed a motion to appoint counsel. (Mot. to Appoint Counsel, July 13, 2022,

Docket No. 20.) After the stay was lifted on October 3, 2022, Larson filed an amended
complaint on November 10, 2022. (Order Lifting Stay, Oct. 3, 2022, Docket No. 24; Am.
Compl.)
Magistrate Judge Dulce J. Foster issued an order denying Larson’s motion to

appoint counsel. (Order Granting IFP and Den. Mot. to Appoint Counsel (“IFP Order”) at
4, Dec. 1, 2022, Docket No. 32.) Larson appealed the denial to appoint counsel to the
Court. (Appeal Order Den. Mot. to Appoint Counsel, Jan. 30, 2023, Docket No. 74.)

Because the Court found that the Magistrate Judge did not clearly err in denying Larson’s
motion to appoint counsel, the order was affirmed. (Order Affirming Order Den. Counsel,
May 16, 2023, Docket No. 100.)
Defendants moved to dismiss the Complaint with prejudice for claim preclusion,

insufficient pleadings, failure to state a claim upon which relief may be granted, and
qualified immunity. (Defs.’ Mem. in Supp. of Mot. to Dismiss, Apr. 11, 2023, Docket No.
93.) Magistrate Judge Foster issued an R&R finding that Larson’s amended complaint (1)
did not plausibly allege violations of his constitutional rights; (2) alleges claims barred

under the doctrine of qualified immunity, and (3) pleads claims that are legally deficient.
(R. & R. at 18, 21, 31, Aug. 3, 2023, Docket No. 117.) Larson filed an objection to the R&R
on August 17, 2023.1 (Pl.’s Obj. to R. & R., Aug. 17, 2023, Docket No. 118.) MSOP filed a
response to Larson’s objection on August 21, 2023. (Defs.’ Resp. to Pl.’s Obj., Aug. 21,

2023, Docket No. 120.)
DISCUSSION
I. STANDARD OF REVIEW
After a magistrate judge files an R&R, a party may file “specific written objections

to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). “The objections
should specify the portions of the magistrate judge's report and recommendation to
which objections are made and provide a basis for those objections.” Mayer v. Walvatne,
No. 07–1958,

2008 WL 4527774

 at *2 (D. Minn. Sept. 28, 2008).  For dispositive motions, 

the Court reviews de novo a “properly objected to” portion of an R&R.  Fed. R. Civ. P. 
72(b)(3).  When reviewing a properly objected to portion of an R&R, the Court will review 
the case from the start, as if it is the first court to review and weigh in on the issues.  See 
Salve Regina College v. Russell,

499 U.S. 225, 238

 (1991) (“When de novo review is 

compelled, no form of appellate deference is acceptable.”).  “Objections which are not 
specific but merely repeat arguments presented to and considered by a magistrate judge 




    1 With his objection to the R&R, Larson asks the Court to file a motion objecting to the 
referral to the Magistrate Judge in a different case, Case No. 23-cv-1823.  (Pl.’s Obj. R. & R., Aug. 
17, 2023, Docket No. 118.)  As that motion is not properly filed under this case, and an objection 
to the referral to a Magistrate Judge in this case has previously been addressed, the Court will 
not address that motion.                                                  
are not entitled to de novo review, but rather are reviewed for clear error.”  Montgomery 
v. Compass Airlines, LLC,

98 F. Supp. 3d 1012, 1017

 (D. Minn. Mar. 30, 2015).  

    A document filed by a pro se litigant is to be liberally construed and must be held 
to a less stringent standard than formal pleadings drafted by lawyers.  Erickson v. Pardus,

551 U.S. 89, 94

 (2007).  The Eighth Circuit has been willing to liberally construe otherwise 
general pro se objections to R&Rs and to require de novo review of all alleged errors.  See 

Belk v. Purkett,

15 F.3d 803, 815

 (8th Cir. 1994).  However, “pro se litigants are not excused 
from failing to comply with substantive or procedural law.”  Burgs v. Sissel,

745 F.2d 526, 528

 (8th Cir. 1984).                                                      

II.  ANALYSIS                                                             
    Although Larson’s pro se status and the dispositive nature of the motion to dismiss 
favor de novo review, the Court will review each of the Magistrate Judge’s orders and 
recommendations for clear error because the Court finds that Larson has not “properly” 

objected to the R&R.  See Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de 
novo any part of the magistrate judge’s disposition [of a dispositive motion] that has been 
properly objected to.”).  It is well established that objections which are not specific, or 
which merely repeat arguments presented to a Magistrate Judge, are not entitled to de 

novo review.  See, e.g., Martinez v. Astrue, No. 10–5863,

2011 WL 4974445

, at *3 (E. D. 
Pa. Oct. 19, 2011) (collecting cases).                                    
    While Larson challenges all the findings of the Magistrate Judge, he does so by 
using substantially the same language as in his memorandum in opposition to the MSOP’s 
motion to dismiss; he does not raise new arguments or challenge specific portions of the 
R&R.  (See Pl.’s Obj.)  For example, Larson again asserts that he should have been 

appointed counsel.2  (Id. at 5–6.)                                        
    After reviewing all the information, the Court does not find clear error by the 
Magistrate Judge.  Thus, the Court will adopt the R&R and dismiss Larson’s complaint with 
prejudice.                                                                

    Even though the Court finds no clear error by the Magistrate Judge, in the interest 
of clarity and thoroughness, it will address why the objections should be denied even 
under de novo review.  Larson’s objections can be grouped into three general categories.  

The objections include: (1) the court found a meritorious claim when granting his in forma 
pauperis (“IFP”) application, (2) his individual claims are not barred by claim preclusion, 
and (3) the events of July 20, 2011 create a distinct cause of action.  Each objection will 
be evaluated individually.                                                

    A.   IFP Status Granted Under

28 U.S.C. § 1915

(e)(2)(B)              
    Larson argues that in granting his IFP application, the court necessarily found his 
claim to have merit.  (Mot. for Leave to Proceed In Forma Pauperis, May 6, 2013, Docket 
No. 2; Pl.’s Obj. at 1–2.)  In evaluating his IFP application, the Magistrate Judge found 



    2 Larson filed a motion to appoint counsel which was denied by the Magistrate Judge and 
affirmed by this Court.  (Order Granting IFP and Denying Counsel, Dec. 1, 2022, Docket No. 32; 
Order Affirming Order Denying Counsel, May 16, 2023, Docket No. 100.)  As this issue has already 
been decided by the Court, it will not be evaluated on Larson’s objection to the R&R.  
Larson had a “colorable claim for relief” that allowed him to proceed IFP.  (R. & R. at 18.)  
Larson claims that a failure to dismiss at this stage resulted in a stipulation that the claim 

had merit; otherwise, he argues that dismissal was mandatory.  (Pl.’s Obj. at 1–2.)   
    However, even when a plaintiff qualifies for IFP status, “the court shall dismiss the 
case at any time if the court determines that the action [] fails to state a claim on which 
relief may be granted.”

28 U.S.C. § 1915

(e)(2)(B)(ii).  In other words, the Court may 

dismiss a complaint that fails to state a claim on which relief may be granted at “at any 
time.”

Id.

 (emphasis added).  A court may grant IFP status and then later find that the 
action should be dismissed.  Bishop v. Nystrom, Case No. 18-2858,

2018 WL 6718577

, at 

*1 (D. Minn. Nov. 5, 2018) (granting an application to proceed IFP in a previous order 
before recommending dismissal for failure to state a claim).  Moreover, the Magistrate 
Judge specifically indicated in the order granting IFP status that the order did not render 
the complaint immune to challenge by the defendants on the sufficiency of its pleadings.  

(IFP Order at 1.)  Therefore, the fact that Larson was granted IFP status does not mean 
that his pleadings would not be later scrutinized on sufficiency grounds. 
    B.   Claim Preclusion                                                
    Larson challenges the application of claim preclusion based on two grounds: that 

he seeks individual damages as opposed to declaratory and injunctive relief, and that he 
was harmed in a different way than the other class members.  (Pl.’s Obj. at 3–4.)  Under 
the doctrine of claim preclusion, “a final judgment on the merits of an action precludes 
the parties or their privies from relitigating issues that were or could have been raised in 
that action.”  Allen v. McCurry,

449 U.S. 90, 94

 (1980).  The elements of claim preclusion 
are that: “(1) the first suit resulted in a final judgment on the merits; (2) the first suit was 

based on proper jurisdiction; (3) both suits involve the same parties (or those in privity 
with them); and (4) both suits are based upon the same claims or causes of action.”   Elbert 
v. Carter,

903 F.3d 779, 782

 (8th Cir. 2018) (citation omitted).          
    First, as the Magistrate Judge properly noted, it is undisputed that the Karsjens 

lawsuit resulted in a final judgment, which has now been affirmed by the Eighth Circuit.  
See Karsjens v. Harpstead,

74 F.4th 561

 (8th Cir. 2023).  Second, there is no dispute that 
the Karsjens court exercised proper jurisdiction.

Id. at 565

.  Third, there is also no dispute 

that the parties in this lawsuit were parties or in privity with the parties in the Karsjens 
litigation.  (See R. & R. at 15.)  Finally, this action and Karsjens are based on the same 
claims because they arise out of the same set of facts.  “[W]hether two claims are the 
same for [claim preclusion] purposes depends on whether the claims arise out of the 

same nucleus of operative fact or are based upon the same factual predicate.”  Murphy 
v. Jones,

877 F.2d 682

, 684–85 (8th Cir. 1989).  Therefore, all four elements of claim 
preclusion are met, and Larson is bound by the outcome in Karsjens.  As a result, Larson’s 
claims that challenge the constitutionality of the MSOP practices must fail as they were 

upheld in Karsjens, and his claims arising out of the same set of facts and circumstances 
must fail as they should have been raised in Karsjens.                    
    Larson  maintains  that  because  he  is  seeking  individual  damages,  and  not 
declaratory and injunctive relief like the Karsjens class, his claim is not barred by claim 

preclusion.  While Larson cites authority which suggests individual damages claims may 
survive class claim resolution, that is only true if the individual claims are distinct.  Cooper 
v. Fed. Rsrv. Bank of Richmond,

467 U.S. 867, 880, 868

 (1984).  In Cooper, the Supreme 
Court held that a class judgment precludes individual class members from relitigating the 

question  of  an  overarching  unlawful  practice  or  policy  but  does  not  preclude 
individualized claims regarding specific instances of unlawful conduct.

Id. at 880

.  Most 
of Larson’s claims are broad policy-based arguments that Karsjens resolved.  Thus, he 

cannot seek individual damages on those claims.                           
    Notably, Larson does allege specific and individualized conduct on July 20, 2011 
which falls outside the scope of the Karsjens common nucleus of facts.  Because these 
allegations involve a specific incident, not a general challenge to the MSOP as addressed 

in Karsjens, they are not barred by claim preclusion.  However, surviving claim preclusion 
does not mean those allegations amount to a cognizable legal claim.       
    C.   Incident on July 20, 2011                                       
    Larson also objects to the Magistrate Judge’s finding that his amended complaint 

does not properly plead legal claims.  (Pl.’s Obj. at 2.)  He argues that he properly alleges 
specific conduct by specific defendants.  While separate from the Karsjens litigation and 
not barred by claim  preclusion, these allegations are still subject to court  scrutiny.  
Because the Court finds that Larson’s claims surrounding the July 20, 2011 incident fail to 
meet the pleading standards under Federal Rule of Civil Procedure 8(a)(2) and 12(b)(6) 
and the named Defendants are protected by qualified immunity, dismissal is appropriate. 

    1.  Rule 8(a)(2)                                                     
    Federal Rule of Civil Procedure 8(a)(2) requires that plaintiffs plead “a short and 
plain statement of the claim showing that [they are] entitled to relief.  Fed. R. Civ. P. 
8(a)(2).  The Supreme Court has said that Rule 8(a)(2)’s plain statement requirement is 

designed to “give the defendant fair notice of what the . . . claim is and the grounds upon 
which it rests.”  Erickson,

551 U.S. at 93

 (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555

 (2007)).  Defendants cannot have proper notice where “a plaintiff files a ‘kitchen 

sink’ or ‘shotgun’ complaint asserting every conceivable claim against every conceivable 
defendant.”  City of Wyoming v. Procter & Gamble Co.,

210 F. Supp. 3d 1137, 1153

 (D. 
Minn. 2016) (quoting Tatone v. SunTrust Mortg., Inc.,

857 F. Supp. 2d 821

, 831–32, 839–
40 (D. Minn. 2012)).  In Tatone, Judge Davis found that “[a] complaint which lumps all 

defendants together and does not sufficiently allege who did what to whom, fails to state 
a claim for relief because it does not provide fair notice of the grounds for the claims 
made against a particular defendant.”

Id. at 831

.
Larson’s amended complaint does not conform to this standard and does not put

defendants on notice. The amended complaint consists of 168 paragraphs of factual
allegations and ten causes of actions. (See generally Am. Compl.) Allegedlly, all 168
paragraphs relate to each cause of action and each Defendant is responsible for each
cause of action. (Id.) However, the defendants named on the complaint do not match
those named in the causes of action, which reduces the number of defendants from 47

to 26. (Id. at 14–15 ¶ 2.) Theoretically, the missing 11 defendants from the body of the
complaint are not alleged to have committed any of the actions in the complaint, yet they
are still named as defendants in this case. (Id. at 1.) Further, each cause of action is
against named Defendants and other unnamed “John and Jane Doe’s.” (Id. at 14–15 ¶ 2.)

While the allegations arising from July 20, 2011 name specific Defendants, neither the
specific conduct from that date nor the named Defendants are linked to a specific cause
of action. (Id. at 27–29 ¶¶ 62–79.) This deficiency fails to put Defendants, even those

specifically named in the July 20, 2011 incident, on notice as to the claims.
2. Rule 12(b)(6)
Even if Larson’s complaint had put all the Defendants on notice, the Complaint still
must plead a claim upon which relief can be granted. In reviewing a motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6), the Court considers all facts alleged in the
complaint as true to determine if the complaint states a “claim to relief that is plausible
on its face.” Braden v. Wal-Mart Stores, Inc.,

588 F.3d 585, 594

 (8th Cir. 2009) (quoting 
Ashcroft v. Iqbal,

556 U.S. 662, 678

 (2009)).                             

      “A claim has facial plausibility when the plaintiff pleads factual content that allows 
the court to draw the reasonable inference that the defendant is liable for the misconduct 
alleged.”  Iqbal,

556 U.S. at 678

.  The Court construes the complaint in the light most 
favorable to the plaintiff, drawing all inferences in the plaintiff’s favor.  Ashley Cnty. v. 
Pfizer, Inc.,

552 F.3d 659, 665

 (8th Cir. 2009).  Although the Court accepts the complaint's 

factual allegations as true and construes the complaint in a light most favorable to the 
plaintiff, it is “not bound to accept as true a legal conclusion couched as a factual 
allegation.”  Papasan v. Allain,

478 U.S. 265, 286

 (1986).  In other words, a complaint 
“does not need detailed factual allegations” but must include more “than labels and 

conclusions, and a formulaic recitation of a cause of action’s elements” to meet the 
plausibility standard.  Twombly,

550 U.S. at 545

.                         
    Larson correctly notes that pro se pleadings are to be construed liberally.  Erickson,

551 U.S. at 94

.  However, the Court will not insert additional facts that strengthen a claim 
or “construct a legal theory for [a] plaintiff that assumes facts that have not been 
pleaded.”  Stone v. Harry,

364 F.3d 912, 914

 (8th Cir. 2004) (citing Dunn v. White,

880 F.2d 1188, 1197

 (10th Cir. 1989)).  While Larson makes specific allegations against specific 

Defendants, he fails to identify specific causes of action that these fall under.  In the 
interest of liberally construing Larson’s pro se complaint, the Court will evaluate the 
plausibility of the factual allegations of July 20, 2011 under two possible claims: excessive 
force and adequacy of medical care.                                       

         A.  Excessive Force                                             
    When a person is involuntarily committed, excessive force against that person is 
prohibited under the Fifth and Fourteenth Amendments.  Andrews v. Neer,

253 F.3d 1052, 1062

  (8th  Cir.  2001);  Kingsley  v.  Hendrickson,

576 U.S. 389, 404

  (2015)  (Scalia,  J. 
dissenting).3  Excessive force claims by persons who are civilly committed are evaluated 

with the same standard as excessive force claims by pretrial detainees.  Andrews,

253 F.3d at 1061

. For a pretrial detainee to sustain a claim for excessive force, the Supreme Court
has held that the use of force must be both deliberate and objectively unreasonable.
Kingsley, 576 U.S. at 396–97 (2015). The objective analysis is based on the perspective of

a “reasonable officer on the scene” at the time of the incident. Id. at 397.
When Hibbard and Christenson initiated contact with Larson, he was trying to
enter the High Security Area (“HSA”) of the MSOP facility. (Am. Compl. at 27 ¶¶ 62–63.)

Hibbard then proceeded to place Larson in a “bear hug” and throw him to the floor. (Id.
at 28 ¶ 65.) Larson asserts this “attack” was unprovoked and unjustified resulting in
severe abrasions, possibly cracked ribs, and “pain and damage” to Larson’s left ankle from
Hibbard “stomping down on the back of [his] left lower leg.” (Id. at 28–29 ¶¶ 65, 73, 75.)

He further alleges that he was unable to breathe because Christenson restrained him by
“mounting” his face and placing him in handcuffs while already immobilized constituting
excessive restraint. (Id. at 29 ¶¶ 77–79.) Finally, Larson claims that his injuries were not
properly diagnosed or treated; he was examined by a licensed practical nurse the day of

the incident, but no other treatment was provided. (Id. at 29 ¶¶ 80, 82.)

3 Larson alleges cruel and unusual punishment, but because he is civilly committed and
not a convicted prisoner, the Eighth Amendment prohibition on cruel and unusual punishment is
not applicable. Kingsley v. Hendrickson,

576 U.S. 389, 390

 (2015).       
    Taking the facts as true and in the light most favorable to Larson, the Court finds 
that he did not sufficiently plead Hibbard and Christenson’s deliberative conduct was an 

objectively unreasonable use of force.  The Eighth Circuit has held that placing someone 
in a bear hug, throwing them to the ground, and handcuffing them while walking away 
from officers did not constitute excessive force even though it resulted in momentary loss 
of consciousness and a fractured collarbone.  Kelsay v. Ernst,

933 F.3d 975

, 978–79, 980–

81 (8th Cir. 2019).  In Kelsay, the Eighth Circuit held that the takedown did not clearly 
constitute excessive force because a reasonable officer could find it necessary to execute 
a take down to control the situation and prevent an escalation of confrontation even if a 

jury could find that the subject presented no risk.

Id. at 981

 (describing Kelsay’s behavior 
as only ignoring commands and walking away).                              
    Larson’s situation is substantially similar to that presented in Kelsay in that he 
continued to walk towards HSA after being confronted by Hibbard and Christenson, which 

led to Hibbard’s “bear hug” take down.  (Am. Compl. at 27 ¶¶ 63–64.)  However, Larson’s 
situation differs in two significant ways.  Larson attempted to enter a secured area of the 
MSOP facility, and thrashed around during the altercation, ultimately striking Hibbard’s 
head with his own.  (Id. at 28 ¶¶ 70–71.)  The holding in Kelsay coupled with the 

heightened circumstances of Larson’s flailing around while trying to enter a secured area 
establishes that Hibbard and Christenson’s conduct was not objectively unreasonable at 
the time they acted.                                                      
         B.  Adequacy of Medical Care                                    
    Inadequate medical care can violate substantive due process under the Fourteenth 

Amendment.  Senty-Haugen v. Goodno,

462 F.3d 876, 889

 (8th Cir. 2006).  A violation is 
evaluated  under  the  same  standard  established  under  the  Eighth  Amendment: 
“deliberate indifference” to a “serious illness or injury.”

Id.

 (citing Estelle v. Gamble,

429 U.S. 97, 105

 (1976)).  Deliberate indifference is a higher standard than gross negligence 

and the plaintiff must show that a known excessive risk to health was disregarded.  Gibson 
v. Weber,

433 F.3d 642, 646

 (8th Cir. 2006).  To meet the deliberate indifference standard, 
a plaintiff must show a “mental state akin to criminal recklessness.”  Allard v. Baldwin,

779 F.3d 768, 772

 (8th Cir. 2015) (citing Vaughn v. Gray,

557 F.3d 904, 908

 (8th Cir. 2008)).  
Dissatisfaction with medical treatment and negligent misdiagnosis do not rise to the level 
of deliberate indifference.  Davis v. Hall,

992 F.2d 151, 153

 (8th Cir. 1993); Allard,

779 F.3d at 772

.                                                                   

    Larson suggests that his injuries were improperly treated after the July 20, 2011 
altercation resulting in over four weeks of chest pain and numbness as well as scarring.   
(Am. Compl. at 29–30 ¶¶ 82–84.)  However, he was examined that same day, and 
although no additional treatment was given, it is not clear from the facts as pleaded that 

Larson’s injuries worsened as a result of “deliberate indifference.”  (Id. at 29 ¶ 80.)  There 
is nothing to suggest that because he did not see a doctor as he requested or that MSOP 
or the licensed practical nurse had the “mental state akin to criminal recklessness.”  (Id. 
at 29 ¶ 82.); Allard,

779 F.3d at 772

.  Larson’s same day evaluation indicates an attempt 
to treat and manage any injuries sustained.  Nothing presented by Larson leads the Court 

to believe there is a plausible substantive due process claim for inadequate medical care 
under the Fourteenth Amendment.                                           
    3.  Qualified Immunity                                               
    While the factual allegations arising from July 20, 2011 do not meet the pleading 

standard under Rule 8(a)(2) and fail to state a claim upon which relief can be granted 
under Rule 12(b)(6), the allegations fail for a third reason.  Hibbard and Christenson are 
protected  by  qualified  immunity.    “Government  officials  performing  discretionary 

functions generally are shielded from liability for civil damages insofar as their conduct 
does  not  violate  clearly  established  statutory  or  constitutional  rights  of  which  a 
reasonable person would have known.”  Harlow v. Fitzgerald,

457 U.S. 800, 818

 (1982).  
Qualified immunity protects “all but the plainly incompetent or those who knowingly 

violate the law” and is a question of law for the Court to decide.  White v. Pauly,

580 U.S. 73, 79

 (2017) (quoting Mullenix v. Luna,

577 U.S. 7, 12

 (2015)).          
    The qualified immunity analysis involves two questions: (1) whether the facts, as 
alleged by the plaintiff, establish a violation of a constitutional right, and (2) whether the 

constitutional right was clearly established at the time the defendant allegedly violated 
the right.  Pearson v. Callahan,

555 U.S. 223, 232

 (2009); Burke v. Sullivan,

677 F.3d 367, 371

 (8th Cir. 2012).                                                      
    The clearly established prong of the qualified immunity analysis requires the Court 
to evaluate whether the constitutional rights at issue are clearly established at the time 

of the deprivation such that a reasonable official would understand that their conduct 
was unlawful in the situation.  Hope v. Pelzer,

536 U.S. 730, 739

 (2002) (“in the light of 
preexisting law the unlawfulness must be apparent”); White,

580 U.S. at 79

 (noting that 
“existing precedent must have placed the statutory or constitutional question beyond 

debate” in order to conclude that a right has been clearly established).  While the clearly 
established standard is admittedly stringent and the clearly established law must be 
“particularized to the facts of the case,” the Court need not locate a case directly on point 

in order to conclude that the statutory or constitutional question is beyond debate.  
White,

580 U.S. at 79

.
Larson’s complaint falls short on both prongs. First, he alleges no constitutional or
statutory violation relating to the events of July 20, 2011. He claims mistreatment and

injury but fails to tie those claims to any specific cause of action. The only claims that the
Court can surmise are excessive force and inadequate medical care. As discussed above,
Larson did not plead sufficient facts to suggest that the force used by Hibbard and
Christenson was objectively unreasonable. Nor did he plead sufficient facts to suggest

that anyone operated with deliberate indifference to a known injury when they treated
Larson. Instead, Larson relies on conclusory statements that the conduct on July 20, 2011
was “deliberate[], sadistic[], and malicious[]” and that it was “unnecessary and illegal.”
(Am. Compl. at 29 ¶¶ 75, 77, 79.)

Second, even if Larson could substantiate a constitutional violation, it is not one
that was clearly established at the time of the incident. There are no facts suggesting that
the force used by the officers was established as excessive. In fact, the Magistrate Judge
presented several examples of similar force that was found to not be excessive while

Larson presents no support for his claim of excessive force. (R. & R. at 24.) There are also
no facts suggesting that a same day evaluation of injuries from an altercation without
further treatment is a known violation of substantive due process. Because neither of the

potential claims relating to July 20, 2011 are sufficient to find a violation of an established
constitutional right and no allegations suggest that this conduct was known to be unlawful
at the time discretion was exercised, qualified immunity applies. As such, the claim
cannot proceed against Hibbard and Christenson because it fails to meet the pleading

standards under Federal Rules of Civil Procedure 8(a)(2) and 12(b)(6) and because
qualified immunity shields these Defendants from liability.
CONCLUSION
Larson’s complaint encompasses challenges to the MSOP program overall and the

details of one specific incident. All of the general allegations must be dismissed because
they are precluded by the Karsjens litigation. Further, the specific allegations of July 20,
2011 fail to meet the pleading standard, fail to state a claim upon which relief can be
granted, and the named Defendants are protected under qualified immunity. As such,
the Court will adopt the Report & Recommendation. Thus, Larson’s objection will be
overruled, and Larson’s complaint will be dismissed with prejudice.*

ORDER

     Based on the foregoing, and  all the files,  records, and  proceedings  herein,  IT IS 
HEREBY ORDERED that: 
     1.  The  Magistrate  Judge’s  Report  and  Recommendation  [Docket  No.  117]  is 
        ADOPTED; 
     2.  Plaintiff's objection  [Docket  No.  118]  to the  Report and  Recommendation  is 
        OVERRULED; 
     3.  Defendants‘ Motion to Dismiss [Docket No. 91] is GRANTED. 
     4.  Plaintiff's Motion for Continuance and for Default Judgment [Docket No. 97] is 
        DENIED as moot. 
     5.  Plaintiff's Amended Complaint [Docket No. 30] is DISMISSED with prejudice. 
LET JUDGMENT BE ENTERED ACCORDINGLY. 

DATED:  February 6, 2024                           doen MK. (rsdn 
at Minneapolis, Minnesota.                         JOHN R. TUNHEIM 
                                            United States District Judge 

     4  Alternatively,  Larson  asks  the  Court  to  dismiss  his  complaint  without  prejudice. 
However, after going through the analysis of the possible claims, the Court does not find that 
Larson’s complaint could be cured even with a chance to amend.  Perez v. Bank of Am., N.A., No. 
13-2437,

2014 WL 2611838

, at *11 n. 6 (D. Minn. June 10, 2014) (collecting cases). 
                                    -21-

Trial Court Opinion

                   UNITED STATES DISTRICT COURT                          
                      DISTRICT OF MINNESOTA                              
HOLLIS J. LARSON,                                                        
                                      Civil No. 13-1074 (JRT/DJF)        
                       Plaintiff,                                        

v.                                                                       
                                   ORDER ADOPTING REPORT AND             
THE MINNESOTA SEX OFFENDER              RECOMMENDATION                   
PROGRAM (MSOP), et al.,                                                  

                      Defendants.                                        

    Hollis J. Larson, MSOP, 1111 Highway 73, Moose Lake, MN 55767, pro se 
    Plaintiff.                                                           

    Benjamin  C.  Johnson,  MINNESOTA  ATTORNEY  GENERAL’S  OFFICE,  445 
    Minnesota Street, Suite 1400, St. Paul, MN 55401, for Defendants.    


    Plaintiff Hollis J. Larson is civilly committed to the Minnesota Sex Offender Program 
(“MSOP”).  He filed a complaint against 47 named defendants and an “unknown number 
of  John  and  Jane  Does”  (collectively  “MSOP”)  challenging  his  treatment  and  the 
conditions at MSOP.  Larson alleges constitutional violations and state law tort claims 
under

42 U.S.C. § 1983

 and the United States Constitution.  MSOP moved to dismiss the 
complaint and Magistrate Judge Dulce J. Foster recommended that MSOP’s motion be 
granted.  Larson objected to the Report and Recommendation (“R&R”).  After review, the 
Court will adopt Magistrate Judge Foster’s R&R and dismiss Larson’s complaint with 
prejudice.                                                                
                          BACKGROUND                                     
I.   FACTS                                                                
    Plaintiff Hollis J. Larson is civilly committed to the Minnesota Sex Offender Program 

(“MSOP”) and residing at MSOP’s facility in Moose Lake, Minnesota.  (Am. Compl. at 3 ¶ 
A, Nov. 10, 2022, Docket No. 30.)  Over the past decade, Larson has alleged various 
constitutional rights violations and mistreatment under

42 U.S.C. § 1983

while he has

2023, Docket No. 120.)
DISCUSSION
I. STANDARD OF REVIEW
After a magistrate judge files an R&R, a party may file “specific written objections

2008 WL 4527774

 at *2 (D. Minn. Sept. 28, 2008).  For dispositive motions, 

the Court reviews de novo a “properly objected to” portion of an R&R.  Fed. R. Civ. P. 
72(b)(3).  When reviewing a properly objected to portion of an R&R, the Court will review 
the case from the start, as if it is the first court to review and weigh in on the issues.  See 
Salve Regina College v. Russell,

499 U.S. 225, 238

 (1991) (“When de novo review is 

compelled, no form of appellate deference is acceptable.”).  “Objections which are not 
specific but merely repeat arguments presented to and considered by a magistrate judge 




    1 With his objection to the R&R, Larson asks the Court to file a motion objecting to the 
referral to the Magistrate Judge in a different case, Case No. 23-cv-1823.  (Pl.’s Obj. R. & R., Aug. 
17, 2023, Docket No. 118.)  As that motion is not properly filed under this case, and an objection 
to the referral to a Magistrate Judge in this case has previously been addressed, the Court will 
not address that motion.                                                  
are not entitled to de novo review, but rather are reviewed for clear error.”  Montgomery 
v. Compass Airlines, LLC,

98 F. Supp. 3d 1012, 1017

 (D. Minn. Mar. 30, 2015).  

    A document filed by a pro se litigant is to be liberally construed and must be held 
to a less stringent standard than formal pleadings drafted by lawyers.  Erickson v. Pardus,

551 U.S. 89, 94

 (2007).  The Eighth Circuit has been willing to liberally construe otherwise 
general pro se objections to R&Rs and to require de novo review of all alleged errors.  See 

Belk v. Purkett,

15 F.3d 803, 815

 (8th Cir. 1994).  However, “pro se litigants are not excused 
from failing to comply with substantive or procedural law.”  Burgs v. Sissel,

745 F.2d 526, 528

 (8th Cir. 1984).                                                      

II.  ANALYSIS                                                             
    Although Larson’s pro se status and the dispositive nature of the motion to dismiss 
favor de novo review, the Court will review each of the Magistrate Judge’s orders and 
recommendations for clear error because the Court finds that Larson has not “properly” 

objected to the R&R.  See Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de 
novo any part of the magistrate judge’s disposition [of a dispositive motion] that has been 
properly objected to.”).  It is well established that objections which are not specific, or 
which merely repeat arguments presented to a Magistrate Judge, are not entitled to de 

novo review.  See, e.g., Martinez v. Astrue, No. 10–5863,

2011 WL 4974445

, at *3 (E. D. 
Pa. Oct. 19, 2011) (collecting cases).                                    
    While Larson challenges all the findings of the Magistrate Judge, he does so by 
using substantially the same language as in his memorandum in opposition to the MSOP’s 
motion to dismiss; he does not raise new arguments or challenge specific portions of the 
R&R.  (See Pl.’s Obj.)  For example, Larson again asserts that he should have been 

appointed counsel.2  (Id. at 5–6.)                                        
    After reviewing all the information, the Court does not find clear error by the 
Magistrate Judge.  Thus, the Court will adopt the R&R and dismiss Larson’s complaint with 
prejudice.                                                                

    Even though the Court finds no clear error by the Magistrate Judge, in the interest 
of clarity and thoroughness, it will address why the objections should be denied even 
under de novo review.  Larson’s objections can be grouped into three general categories.  

The objections include: (1) the court found a meritorious claim when granting his in forma 
pauperis (“IFP”) application, (2) his individual claims are not barred by claim preclusion, 
and (3) the events of July 20, 2011 create a distinct cause of action.  Each objection will 
be evaluated individually.                                                

    A.   IFP Status Granted Under

28 U.S.C. § 1915

(e)(2)(B)              
    Larson argues that in granting his IFP application, the court necessarily found his 
claim to have merit.  (Mot. for Leave to Proceed In Forma Pauperis, May 6, 2013, Docket 
No. 2; Pl.’s Obj. at 1–2.)  In evaluating his IFP application, the Magistrate Judge found 



    2 Larson filed a motion to appoint counsel which was denied by the Magistrate Judge and 
affirmed by this Court.  (Order Granting IFP and Denying Counsel, Dec. 1, 2022, Docket No. 32; 
Order Affirming Order Denying Counsel, May 16, 2023, Docket No. 100.)  As this issue has already 
been decided by the Court, it will not be evaluated on Larson’s objection to the R&R.  
Larson had a “colorable claim for relief” that allowed him to proceed IFP.  (R. & R. at 18.)  
Larson claims that a failure to dismiss at this stage resulted in a stipulation that the claim 

had merit; otherwise, he argues that dismissal was mandatory.  (Pl.’s Obj. at 1–2.)   
    However, even when a plaintiff qualifies for IFP status, “the court shall dismiss the 
case at any time if the court determines that the action [] fails to state a claim on which 
relief may be granted.”

28 U.S.C. § 1915

(e)(2)(B)(ii).  In other words, the Court may 

dismiss a complaint that fails to state a claim on which relief may be granted at “at any 
time.”

Id.

 (emphasis added).  A court may grant IFP status and then later find that the 
action should be dismissed.  Bishop v. Nystrom, Case No. 18-2858,

2018 WL 6718577

, at 

*1 (D. Minn. Nov. 5, 2018) (granting an application to proceed IFP in a previous order 
before recommending dismissal for failure to state a claim).  Moreover, the Magistrate 
Judge specifically indicated in the order granting IFP status that the order did not render 
the complaint immune to challenge by the defendants on the sufficiency of its pleadings.  

(IFP Order at 1.)  Therefore, the fact that Larson was granted IFP status does not mean 
that his pleadings would not be later scrutinized on sufficiency grounds. 
    B.   Claim Preclusion                                                
    Larson challenges the application of claim preclusion based on two grounds: that 

he seeks individual damages as opposed to declaratory and injunctive relief, and that he 
was harmed in a different way than the other class members.  (Pl.’s Obj. at 3–4.)  Under 
the doctrine of claim preclusion, “a final judgment on the merits of an action precludes 
the parties or their privies from relitigating issues that were or could have been raised in 
that action.”  Allen v. McCurry,

449 U.S. 90, 94

 (1980).  The elements of claim preclusion 
are that: “(1) the first suit resulted in a final judgment on the merits; (2) the first suit was 

based on proper jurisdiction; (3) both suits involve the same parties (or those in privity 
with them); and (4) both suits are based upon the same claims or causes of action.”   Elbert 
v. Carter,

903 F.3d 779, 782

 (8th Cir. 2018) (citation omitted).          
    First, as the Magistrate Judge properly noted, it is undisputed that the Karsjens 

lawsuit resulted in a final judgment, which has now been affirmed by the Eighth Circuit.  
See Karsjens v. Harpstead,

74 F.4th 561

 (8th Cir. 2023).  Second, there is no dispute that 
the Karsjens court exercised proper jurisdiction.

Id. at 565

.  Third, there is also no dispute 

that the parties in this lawsuit were parties or in privity with the parties in the Karsjens 
litigation.  (See R. & R. at 15.)  Finally, this action and Karsjens are based on the same 
claims because they arise out of the same set of facts.  “[W]hether two claims are the 
same for [claim preclusion] purposes depends on whether the claims arise out of the 

same nucleus of operative fact or are based upon the same factual predicate.”  Murphy 
v. Jones,

877 F.2d 682

, 684–85 (8th Cir. 1989).  Therefore, all four elements of claim 
preclusion are met, and Larson is bound by the outcome in Karsjens.  As a result, Larson’s 
claims that challenge the constitutionality of the MSOP practices must fail as they were 

upheld in Karsjens, and his claims arising out of the same set of facts and circumstances 
must fail as they should have been raised in Karsjens.                    
    Larson  maintains  that  because  he  is  seeking  individual  damages,  and  not 
declaratory and injunctive relief like the Karsjens class, his claim is not barred by claim 

preclusion.  While Larson cites authority which suggests individual damages claims may 
survive class claim resolution, that is only true if the individual claims are distinct.  Cooper 
v. Fed. Rsrv. Bank of Richmond,

467 U.S. 867, 880, 868

 (1984).  In Cooper, the Supreme 
Court held that a class judgment precludes individual class members from relitigating the 

question  of  an  overarching  unlawful  practice  or  policy  but  does  not  preclude 
individualized claims regarding specific instances of unlawful conduct.

Id. at 880

.  Most 
of Larson’s claims are broad policy-based arguments that Karsjens resolved.  Thus, he 

cannot seek individual damages on those claims.                           
    Notably, Larson does allege specific and individualized conduct on July 20, 2011 
which falls outside the scope of the Karsjens common nucleus of facts.  Because these 
allegations involve a specific incident, not a general challenge to the MSOP as addressed 

in Karsjens, they are not barred by claim preclusion.  However, surviving claim preclusion 
does not mean those allegations amount to a cognizable legal claim.       
    C.   Incident on July 20, 2011                                       
    Larson also objects to the Magistrate Judge’s finding that his amended complaint 

does not properly plead legal claims.  (Pl.’s Obj. at 2.)  He argues that he properly alleges 
specific conduct by specific defendants.  While separate from the Karsjens litigation and 
not barred by claim  preclusion, these allegations are still subject to court  scrutiny.  
Because the Court finds that Larson’s claims surrounding the July 20, 2011 incident fail to 
meet the pleading standards under Federal Rule of Civil Procedure 8(a)(2) and 12(b)(6) 
and the named Defendants are protected by qualified immunity, dismissal is appropriate. 

    1.  Rule 8(a)(2)                                                     
    Federal Rule of Civil Procedure 8(a)(2) requires that plaintiffs plead “a short and 
plain statement of the claim showing that [they are] entitled to relief.  Fed. R. Civ. P. 
8(a)(2).  The Supreme Court has said that Rule 8(a)(2)’s plain statement requirement is 

designed to “give the defendant fair notice of what the . . . claim is and the grounds upon 
which it rests.”  Erickson,

551 U.S. at 93

 (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555

 (2007)).  Defendants cannot have proper notice where “a plaintiff files a ‘kitchen 

sink’ or ‘shotgun’ complaint asserting every conceivable claim against every conceivable 
defendant.”  City of Wyoming v. Procter & Gamble Co.,

210 F. Supp. 3d 1137, 1153

 (D. 
Minn. 2016) (quoting Tatone v. SunTrust Mortg., Inc.,

857 F. Supp. 2d 821

, 831–32, 839–
40 (D. Minn. 2012)).  In Tatone, Judge Davis found that “[a] complaint which lumps all 

defendants together and does not sufficiently allege who did what to whom, fails to state 
a claim for relief because it does not provide fair notice of the grounds for the claims 
made against a particular defendant.”

Id. at 831

.
Larson’s amended complaint does not conform to this standard and does not put

588 F.3d 585, 594

 (8th Cir. 2009) (quoting 
Ashcroft v. Iqbal,

556 U.S. 662, 678

 (2009)).                             

      “A claim has facial plausibility when the plaintiff pleads factual content that allows 
the court to draw the reasonable inference that the defendant is liable for the misconduct 
alleged.”  Iqbal,

556 U.S. at 678

.  The Court construes the complaint in the light most 
favorable to the plaintiff, drawing all inferences in the plaintiff’s favor.  Ashley Cnty. v. 
Pfizer, Inc.,

552 F.3d 659, 665

 (8th Cir. 2009).  Although the Court accepts the complaint's 

factual allegations as true and construes the complaint in a light most favorable to the 
plaintiff, it is “not bound to accept as true a legal conclusion couched as a factual 
allegation.”  Papasan v. Allain,

478 U.S. 265, 286

 (1986).  In other words, a complaint 
“does not need detailed factual allegations” but must include more “than labels and 

conclusions, and a formulaic recitation of a cause of action’s elements” to meet the 
plausibility standard.  Twombly,

550 U.S. at 545

.                         
    Larson correctly notes that pro se pleadings are to be construed liberally.  Erickson,

551 U.S. at 94

.  However, the Court will not insert additional facts that strengthen a claim 
or “construct a legal theory for [a] plaintiff that assumes facts that have not been 
pleaded.”  Stone v. Harry,

364 F.3d 912, 914

 (8th Cir. 2004) (citing Dunn v. White,

880 F.2d 1188, 1197

 (10th Cir. 1989)).  While Larson makes specific allegations against specific 

Defendants, he fails to identify specific causes of action that these fall under.  In the 
interest of liberally construing Larson’s pro se complaint, the Court will evaluate the 
plausibility of the factual allegations of July 20, 2011 under two possible claims: excessive 
force and adequacy of medical care.                                       

         A.  Excessive Force                                             
    When a person is involuntarily committed, excessive force against that person is 
prohibited under the Fifth and Fourteenth Amendments.  Andrews v. Neer,

253 F.3d 1052, 1062

  (8th  Cir.  2001);  Kingsley  v.  Hendrickson,

576 U.S. 389, 404

  (2015)  (Scalia,  J. 
dissenting).3  Excessive force claims by persons who are civilly committed are evaluated 

with the same standard as excessive force claims by pretrial detainees.  Andrews,

253 F.3d at 1061

the incident, but no other treatment was provided. (Id. at 29 ¶¶ 80, 82.)

576 U.S. 389, 390

 (2015).       
    Taking the facts as true and in the light most favorable to Larson, the Court finds 
that he did not sufficiently plead Hibbard and Christenson’s deliberative conduct was an 

objectively unreasonable use of force.  The Eighth Circuit has held that placing someone 
in a bear hug, throwing them to the ground, and handcuffing them while walking away 
from officers did not constitute excessive force even though it resulted in momentary loss 
of consciousness and a fractured collarbone.  Kelsay v. Ernst,

933 F.3d 975

, 978–79, 980–

81 (8th Cir. 2019).  In Kelsay, the Eighth Circuit held that the takedown did not clearly 
constitute excessive force because a reasonable officer could find it necessary to execute 
a take down to control the situation and prevent an escalation of confrontation even if a 

jury could find that the subject presented no risk.

Id. at 981

 (describing Kelsay’s behavior 
as only ignoring commands and walking away).                              
    Larson’s situation is substantially similar to that presented in Kelsay in that he 
continued to walk towards HSA after being confronted by Hibbard and Christenson, which 

led to Hibbard’s “bear hug” take down.  (Am. Compl. at 27 ¶¶ 63–64.)  However, Larson’s 
situation differs in two significant ways.  Larson attempted to enter a secured area of the 
MSOP facility, and thrashed around during the altercation, ultimately striking Hibbard’s 
head with his own.  (Id. at 28 ¶¶ 70–71.)  The holding in Kelsay coupled with the 

heightened circumstances of Larson’s flailing around while trying to enter a secured area 
establishes that Hibbard and Christenson’s conduct was not objectively unreasonable at 
the time they acted.                                                      
         B.  Adequacy of Medical Care                                    
    Inadequate medical care can violate substantive due process under the Fourteenth 

Amendment.  Senty-Haugen v. Goodno,

462 F.3d 876, 889

 (8th Cir. 2006).  A violation is 
evaluated  under  the  same  standard  established  under  the  Eighth  Amendment: 
“deliberate indifference” to a “serious illness or injury.”

Id.

 (citing Estelle v. Gamble,

429 U.S. 97, 105

 (1976)).  Deliberate indifference is a higher standard than gross negligence 

and the plaintiff must show that a known excessive risk to health was disregarded.  Gibson 
v. Weber,

433 F.3d 642, 646

 (8th Cir. 2006).  To meet the deliberate indifference standard, 
a plaintiff must show a “mental state akin to criminal recklessness.”  Allard v. Baldwin,

779 F.3d 768, 772

 (8th Cir. 2015) (citing Vaughn v. Gray,

557 F.3d 904, 908

 (8th Cir. 2008)).  
Dissatisfaction with medical treatment and negligent misdiagnosis do not rise to the level 
of deliberate indifference.  Davis v. Hall,

992 F.2d 151, 153

 (8th Cir. 1993); Allard,

779 F.3d at 772

.                                                                   

    Larson suggests that his injuries were improperly treated after the July 20, 2011 
altercation resulting in over four weeks of chest pain and numbness as well as scarring.   
(Am. Compl. at 29–30 ¶¶ 82–84.)  However, he was examined that same day, and 
although no additional treatment was given, it is not clear from the facts as pleaded that 

Larson’s injuries worsened as a result of “deliberate indifference.”  (Id. at 29 ¶ 80.)  There 
is nothing to suggest that because he did not see a doctor as he requested or that MSOP 
or the licensed practical nurse had the “mental state akin to criminal recklessness.”  (Id. 
at 29 ¶ 82.); Allard,

779 F.3d at 772

.  Larson’s same day evaluation indicates an attempt 
to treat and manage any injuries sustained.  Nothing presented by Larson leads the Court 

to believe there is a plausible substantive due process claim for inadequate medical care 
under the Fourteenth Amendment.                                           
    3.  Qualified Immunity                                               
    While the factual allegations arising from July 20, 2011 do not meet the pleading 

standard under Rule 8(a)(2) and fail to state a claim upon which relief can be granted 
under Rule 12(b)(6), the allegations fail for a third reason.  Hibbard and Christenson are 
protected  by  qualified  immunity.    “Government  officials  performing  discretionary 

functions generally are shielded from liability for civil damages insofar as their conduct 
does  not  violate  clearly  established  statutory  or  constitutional  rights  of  which  a 
reasonable person would have known.”  Harlow v. Fitzgerald,

457 U.S. 800, 818

 (1982).  
Qualified immunity protects “all but the plainly incompetent or those who knowingly 

violate the law” and is a question of law for the Court to decide.  White v. Pauly,

580 U.S. 73, 79

 (2017) (quoting Mullenix v. Luna,

577 U.S. 7, 12

 (2015)).          
    The qualified immunity analysis involves two questions: (1) whether the facts, as 
alleged by the plaintiff, establish a violation of a constitutional right, and (2) whether the 

constitutional right was clearly established at the time the defendant allegedly violated 
the right.  Pearson v. Callahan,

555 U.S. 223, 232

 (2009); Burke v. Sullivan,

677 F.3d 367, 371

 (8th Cir. 2012).                                                      
    The clearly established prong of the qualified immunity analysis requires the Court 
to evaluate whether the constitutional rights at issue are clearly established at the time 

of the deprivation such that a reasonable official would understand that their conduct 
was unlawful in the situation.  Hope v. Pelzer,

536 U.S. 730, 739

 (2002) (“in the light of 
preexisting law the unlawfulness must be apparent”); White,

580 U.S. at 79

 (noting that 
“existing precedent must have placed the statutory or constitutional question beyond 

debate” in order to conclude that a right has been clearly established).  While the clearly 
established standard is admittedly stringent and the clearly established law must be 
“particularized to the facts of the case,” the Court need not locate a case directly on point 

in order to conclude that the statutory or constitutional question is beyond debate.  
White,

580 U.S. at 79

.
Larson’s complaint falls short on both prongs. First, he alleges no constitutional or
statutory violation relating to the events of July 20, 2011. He claims mistreatment and

ORDER

     Based on the foregoing, and  all the files,  records, and  proceedings  herein,  IT IS 
HEREBY ORDERED that: 
     1.  The  Magistrate  Judge’s  Report  and  Recommendation  [Docket  No.  117]  is 
        ADOPTED; 
     2.  Plaintiff's objection  [Docket  No.  118]  to the  Report and  Recommendation  is 
        OVERRULED; 
     3.  Defendants‘ Motion to Dismiss [Docket No. 91] is GRANTED. 
     4.  Plaintiff's Motion for Continuance and for Default Judgment [Docket No. 97] is 
        DENIED as moot. 
     5.  Plaintiff's Amended Complaint [Docket No. 30] is DISMISSED with prejudice. 
LET JUDGMENT BE ENTERED ACCORDINGLY. 

DATED:  February 6, 2024                           doen MK. (rsdn 
at Minneapolis, Minnesota.                         JOHN R. TUNHEIM 
                                            United States District Judge 

     4  Alternatively,  Larson  asks  the  Court  to  dismiss  his  complaint  without  prejudice. 
However, after going through the analysis of the possible claims, the Court does not find that 
Larson’s complaint could be cured even with a chance to amend.  Perez v. Bank of Am., N.A., No. 
13-2437,

2014 WL 2611838

, at *11 n. 6 (D. Minn. June 10, 2014) (collecting cases). 
                                    -21-

Reference

Status: Unknown