Nelson v. Ellison

U.S. District Court, District of Minnesota February 21, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CHAD NICHOLAS NELSON,
Civil No. 23-2122 (JRT/LIB)
Plaintiff,

v.
MEMORANDUM OPINION AND ORDER
KEITH ELLISON, Minnesota Attorney
General, et al,

Defendants.

Chad Nicholas Nelson, 6870 147th Avenue Northwest, Ramsey, MN 55303,
pro se Plaintiff.

Plaintiff Chad Nicholas Nelson filed an objection to Magistrate Judge Leo I. Brisbois’
Report and Recommendation (“R&R”) recommending that the Court dismiss Nelson’s
complaint, deny his motions, and deny his application to proceed in forma pauperis
(“IFP”), which the Court adopted. Nelson subsequently filed a motion to alter or amend
the Court’s judgment, a motion to amend the complaint, and a supplemental complaint.
After reviewing the objection de novo and finding that it lacks merit, the Court will
overrule the objection. The Court will deny the Motions to Alter or Amend Judgment and
the Complaint and dismiss the Supplemental Complaint on futility grounds.
BACKGROUND
A Minnesota state-court jury convicted Nelson of one count of second-degree
felony murder, and he was sentenced to a 150-month term of imprisonment. State v.
Nelson, No. A17-1429,

2018 WL 3966353

, at *1 (Minn. Ct. App. Aug. 20, 2018).  Nelson 
was released from custody on December 11, 2023.  Minn. Dept. of Corr., Offender Locator, 

https://coms.doc.state.mn.us/publicviewer (last visited Jan. 4, 2024).    
    While incarcerated, Nelson filed a complaint against Minnesota Attorney General 
Keith Ellison as well as five groups: the Minnesota District Judges Association, the authors 
of the “Trial Handbook for Minnesota Lawyers,” the authors of “Minnesota Practice Series 

Criminal Law and Procedure,” the authors and educators of the “Minnesota District 
Judges Crim. Bench book,” and “all Minnesota prosecutors.”  (See Compl. at 1, July 13, 
2023, Docket No. 1.)  Nelson argues that Minnesota’s self-defense statutes, Minn Stat. §§ 

609.065, 609.06 subsection 3, are unconstitutionally vague and thus he had no duty to 
retreat in the altercation underlying his conviction.  (Id. at 4–6, 8–9.)  He seeks to enjoin 
the defendants from enforcing a duty to retreat in any Minnesota prosecution involving 
self-defense.  (Id. at 4.)  Nelson also filed an application to proceed IFP and three motions.  

(See Appl. to Proceed without Prepaying Fees or Costs, July 21, 2023, Docket No. 5; Mot. 
TRO, July 13, 2023, Docket No. 2; Mot. to Appoint Counsel, July 26, 2023, Docket No. 7; 
Mot. for Copy Costs Added to Filing Fees, July 31, 2023, Docket No. 8.)   
    The Magistrate Judge denied the Motion to Appoint Counsel and issued an R&R 

recommending dismissal of the Complaint and denying all other motions as moot.  (Order 
& R. & R. at 9–10, Oct. 27, 2023, Docket No. 17.)  The R&R concluded the Court lacks 
jurisdiction over claims asserted against the Attorney General in his official capacity under 
the doctrine of sovereign immunity.  (Id. at 5–8.)  In addition, the claims against the 
remaining defendants were patently or factually frivolous.  (Id. at 8–9.)   

    Neither party objected to the R&R by the deadline, November 10, 2023.  Without 
any objections, the Court adopted the R&R.  (Order Adopting R. & R., Nov. 15, 2023, 
Docket No. 18.)  Nelson filed an untimely objection to the R&R on December 4, 2023.  
(Pl.’s Obj. R. & R., Docket No. 21.)  Nelson also filed a Motion to Alter or Amend Judgment, 

a  Motion  to  Amend  the  Complaint,  and  a  Supplemental  Complaint.    (Pl.’s  Mot. 
Alter/Amend/Correct J., Nov. 27, 2023, Docket No. 20; Pl.’s Mot. Alter/Amend/Suppl. 
Pleadings, Dec. 4, 2023, Docket No. 22; Suppl. Compl., Dec. 11, 2023, Docket No. 29.) 


                           DISCUSSION                                    
I.   OBJECTION TO REPORT AND RECOMMENDATION                               
    After a magistrate judge files an R&R, a party may “serve and file specific written 
objections to the proposed findings and recommendations” within 14 days of receiving a 

copy of the R&R.  Fed. R. Civ. P. 72(b)(2); accord D. Minn. LR 72.2(b)(1).  “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); accord D. Minn. LR 72.2(b)(3).                                  
    As a preliminary matter, the Court received Nelson’s objection to the R&R on 
December 4th, well past the November 10th deadline.  Ordinarily, objections submitted 

after the deadline are considered untimely.  However, Nelson claims that prison officials 
provided him with the R&R on November 15th, such that the timeline to object ran until 
November 29th.  Because Nelson was a pro se inmate at the time he sent his objection, 
the Court will consider the timeliness of his objection under the prison-mailbox rule, 

which deems a pro se prisoner’s objection as filed on the day it was delivered to prison 
officials for forwarding to the court.  Houston v. Lack,

487 U.S. 266

, 270–71 (1988); Grinder 
v. Gammon,

73 F.3d 793, 794

 (8th Cir. 1996) (applying prison-mailbox rule to inmate’s 

objections to magistrate judge’s recommendation).  Because Nelson’s objection is dated 
November 29, the Court assumes he delivered it to prison officials for forwarding on that 
date, and thus will consider it timely.                                   
    Nelson’s objection takes issue with the Court’s conclusion that it lacks jurisdiction 

over claims against the Attorney General.  He asserts that the Eleventh Amendment’s 
sovereign  immunity  shield  does  not  apply  because  of  Minnesota  Rule  of  Appellate 
Procedure 144.  However, Rule 144 does not supply any basis for Nelson’s objection, as 
this state appellate rule does not apply to federal district court proceedings.  See Minn. 

R. App. P. 101.01 (dictating that the rules only apply to the Supreme Court and the Court 
of Appeals of Minnesota).  Construing Nelson’s pro se objection liberally, see Erickson v. 
Pardus,

551 U.S. 89, 94

 (2007), the Court assumes that Nelson’s argument is that the Ex 
Parte Young exception applies, under which private parties may seek injunctive relief in 
federal court to prevent state officials from enforcing state laws that are contrary to 

federal law.  Ex Parte Young,

209 U.S. 123

, 159–60 (1908).                
    For the exception to apply, the complaint must allege “an ongoing violation of 
federal law” for which the party “seeks relief properly characterized as prospective.”  281 
Care Comm. v. Arneson,

638 F.3d 621, 632

 (8th Cir. 2011) (quotation omitted).  Here, 

nothing in Nelson’s objection or Complaint could be construed as an ongoing violation of 
federal law.  The Attorney General’s enforcement of lawful Minnesota self-defense 
statutes and the duty to retreat does not violate federal law, so the Ex Parte Young 

exception does not apply.                                                 
    Because Nelson does not specify the

42 U.S.C. § 1983

 claims against the Attorney 
General in his individual or official capacity, the Eighth Circuit instructs the Court to treat 
the claims as official-capacity claims.  See Kelly v. City of Omaha,

813 F.3d 1070, 1075

 (8th 

Cir. 2016).  And because the State of Minnesota has not consented to Nelson’s suit, the 
Court lacks jurisdiction over these claims under sovereign immunity.1  See Cooper v. St. 
Cloud State Univ.,

226 F.3d 964, 968

 (8th Cir. 2000) (discussing the doctrine).  In addition, 
the Court does not believe that Nelson has standing to bring these claims, as he has not 



    1 Even if Nelson intended to bring claims against the Attorney General in his individual 
capacity, the Court would still lack jurisdiction under the doctrine of prosecutorial immunity, as 
the Attorney General’s prosecution was within the scope of this immunity.  See Sample v. City of 
Woodbury,

836 F.3d 913, 916

 (8th Cir. 2016) (discussing the doctrine).    
established a real and immediate threat to himself if the Attorney General continues to 
enforce the duty to retreat and self-defense statutes.  See City of L.A. v. Lyon,

461 U.S. 95

, 

101–06 (1983).  Accordingly, the Court will overrule Nelson’s objection.2 
II.  MOTION TO ALTER OR AMEND JUDGMENT                                    
    A party may file a motion to alter or amend a judgment under Federal Rule of Civil 
Procedure 59(e) within 28 days after the entry of judgment.  Fed. R. Civ. P. 59(e).  A Rule 

59(e) motion serves the limited function of correcting “manifest errors of law or fact or 
to present newly discovered evidence.”  Innovative Home Health Care, Inc. v. P.T.-O.T. 
Assocs. of the Black Hills,

141 F.3d 1284

, 1286 (8th Cir. 1998) (citations omitted).  A party 
cannot re-litigate old issues with such a motion.  Id.                    

    Nelson’s  Rule  59(e)  motion  does  nothing  more  than  re-state  substantive 
arguments he made in his Complaint, making the motion improper.  Yet even if Nelson’s 
motion were proper, it would be denied on the merits.  When the Court adopted the R&R 

in full, it reviewed the Magistrate Judge’s reasoning for clear error and found none.  For 
these reasons, the Court will deny Nelson’s Motion to Alter or Amend Judgment. 





    2 The Court rejects Nelson’s assertion that, because it did not reach the merits of Nelson’s 
challenge in adopting the R&R, the Court “agrees with Plaintiff.”  (Obj. to R. & R. at 5.)  The Court 
cannot reach the merits because it lacks jurisdiction.  As a result, the merits of Nelson’s challenge 
remain  unresolved,  and  the  Court  expresses  no  opinion  on  the  “correctness”  of  Nelson’s 
assertions.                                                               
III.  MOTION TO AMEND THE COMPLAINT                                       
    Rule 15(a) of the Federal Rules of Civil Procedure provides that “[t]he court should 

freely give leave [to amend a pleading] when justice so requires.”  Fed. R. Civ. P. 15(a)(2).  
But there is “no absolute right to amend a pleading.”  Hammer v. City of Osage Beach, 
MO,

318 F.3d 832, 844

 (8th Cir. 2003).  Leave to amend should be denied where there are 
“compelling reasons,” including “futility of the amendment.”

Id.

 (internal quotation 

omitted).                                                                 
    Nelson moves the Court for leave to amend the Complaint, asking that the Court 
declare that his legal statements in the Complaint and other filings are accurate.  Though 
Nelson may seek to add new prayers for relief through these declarations, really he just 

re-states  his  substantive  arguments.    The  proposed  amendments  do  not  cure  any 
deficiencies in the original Complaint, and thus must be denied as futile.  GWG DLP 
Funding V, LLC v. PHL Variable Ins. Co.,

54 F.4th 1029, 1036

 (8th Cir. 2022).  Restating 

substantive arguments or adding new prayers for relief will not cure the fact that the 
Court does not have jurisdiction over Nelson’s claims against the Attorney General or that 
the remaining claims are patently or factually frivolous.  Therefore, the Court will deny 
the Motion to Amend the Complaint.                                        

IV.  SUPPLEMENTAL COMPLAINT                                               
    In the Supplemental Complaint, Nelson restates legal arguments and claims raised 
in his previous filings.  A court can dismiss a complaint under the IFP statute at any time 
if it determines that it is frivolous or fails to state a claim on which relief may be granted.

28 U.S.C. § 1915

(e)(2)(B)(i)–(ii).  The Court dismissed the original Complaint for lack of 
jurisdiction  and  frivolousness,  and  the  Supplemental  Complaint  fails  to  cure  those 

deficiencies.  Accordingly, the Court will dismiss the Supplemental Complaint. 
V.   RESTRICTED FILER LIST                                                
    Courts have authority to control matters pending before them, and while there is 
a right to access the courts that right does not extend to frivolous actions or those with 

malicious intentions.  In re Tyler,

839 F.2d 1290, 1292

 (8th Cir. 1988) (citation omitted).  To 
protect defendants from this type of litigation, courts may reasonably restrict a litigant’s 
ability to file future actions relating to the same conduct.

Id.

 at 1293 (citing Phillips v. 
Carey,

638 F.2d 207, 209

 (10th Cir. 1981)).  In the District of Minnesota, courts first warn 

a litigant before placing them on the restricted filer list.  Thus, though a dismissal without 
prejudice means that Nelson can re-file a complaint after making the necessary changes, 
the Court warns that re-filing without curing the deficiencies may result in Nelson being 

placed on the restricted filer list, which would restrict Nelson from filing any new lawsuits 
or motions in the District of Minnesota unless he is represented by an attorney or obtains 
prior written approval from a United States District Judge or United States Magistrate 
Judge in the District of Minnesota.                                       

                          CONCLUSION                                     
    Because Nelson’s objection is meritless, the Court will overrule the objection and 
deny the Motion to Alter or Amend Judgment.  Because Nelson’s proposed amendments 
to the Complaint and Supplemental Complaint do not cure any deficiencies, the Court will 
deny  the  Motion  to  Amend  the  Complaint  and  dismiss  the  Supplemental  Complaint 
without prejudice.2  The Court also warns that re-filing without curing the deficiencies 

may result in Nelson being placed on the restricted filer list.

ORDER

     Based on the foregoing, and  all the files,  records, and  proceedings herein,  IT IS 
HEREBY ORDERED that: 
     1.  Plaintiff’s Motion to Alter/Amend/Correct Judgment  [Docket No. 20] is DENIED; 
     2.  Plaintiff's  Objection  to  Report  and  Recommendation  [Docket  No.  21]  is 
        OVERRULED; 
     3.  Plaintiff's  Motion  to  Alter/Amend/Supplement  Pleadings  [Docket  No.  22]  is 
        DENIED; and 
     4.  Plaintiff's  Supplemental  Complaint  [Docket  No.  29]  is  DISMISSED  without 
        prejudice. 
LET JUDGMENT BE ENTERED ACCORDINGLY. 

DATED:  February 21, 2024                         tobe, K. (staan 
at Minneapolis, Minnesota.                         JOHN R. TUNHEIM 
                                            United States District Judge 

     3 A dismissal without prejudice means that Nelson can re-file  a complaint after making 
the necessary changes. 
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