Ernst v. Hinchliff (129 F. Supp. 3d 695, 2015)

ORDER ADOPTING REPORT AND RECOMMENDATION

SUSAN RICHARD NELSON, District Judge.

This matter is before the Court on Plaintiffs Objection to. Recommendation to Dismiss (“Objections”) [Doc,. No. 76]. to Magistrate Judge Tony N. Leung’s July 15, 2015 Report and Recommendation (“R & R”) [Doc. No. 75] granting Defendants’ Motions to Dismiss [Doc. Nos. 13, 18, 30, 40], dismissing the State of Minnesota and the Department of Corrections (“DOC”) as an arm of the State of Minnesota, and declining to exercise supplemental jurisdiction over any remaining state claims, including Plaintiffs Minnesota Government Data Practices Act (“MGDPA”) claim against Defendant Moen, dismissing these state claims without prejudice. For the reasons set forth below, the Court overrules Plaintiffs objections and adopts the R & R in its entirety.“

I. BACKGROUND

The factual and procedural background of this case is well documented in the R & R and is incorporated herein by reference. (R & R at 712-20 [Doc. No. 75].) In general terms, this case involves information distributed to various communities regarding Plaintiff Ronald Ernst’s sex offender status. Plaintiff is required to register as a sex offender under Minn. Stat. § 243.166 as he was convicted of a gross-misdemeanor offense which mandates registration. See Ernst v. State, No. A03-63, 2003 WL 23023992, at *1 n. 1 (Minn.App. Dec. 30, 2003).

A. Plaintiffs Prior Offenses

In 1984, Plaintiff plead guilty to a charge of Criminal Attempt to Commit Sexual Assault on a Child in the State of Colorado. (R & R at 713-14.) The child was eleven (11) years old, but the Plaintiff asserts he only touched the child on the abdomen. (Id.; see also Objections at 3 [Doc. No. 76] (describing what is presumably the conduct undeiiying the 1984 conviction).)

In 1997, Plaintiff was charged with several criminal charges (collectively, “1997 Charges”) in Scott County, Minnesota including felony indecent exposure. (R & R at 714.) See Ernst, 2003 WL 23023992, at *1. Although several of the charges were dismissed,' Plaintiff plead guilty to one count of félony indecent exposure for exposing himself to a minor child. (R & R at 714.) See Ernst, 2003 WL 23023992, at *1. Subsequently, it was determined errors in the pre-sentencing investigation resulted in an unwarranted felony enhancement and the indecent-exposure offense was reduced to a gross misdemeanor. (R & R at 714.) See Ernst, 2003 WL 23023992, at *1.

Prior to his release from incarceration on the indecent-exposure conviction, Plaintiff claims he completed a Minnesota Department of Public Safety Bureau of Criminal Apprehension, Sex Offender Notification and Registration Form — Minnesota Statute 243.166; (R & R at 714-15.) However, after his release, he discovered his “Staff social worker” had allegedly altered this form to include the dismissed charges from Scott County, (Id.) He also claims this same social worker told him that if the felony indecent-exposure had been charged as a gross misdemeanor, the Plaintiff would not have to register. (Id.)

In 2001, Plaintiff was arrested and convicted in Minnesota for failure to register as a predatory offender. (Id. at 714-15.) Soon after, in 2002, Plaintiff received a Level III designation from the Minnesota Department of Correction's’ end-of-confinement review committee (“ECRC”). (Id. at 715.) See Minn.Stat. § 244.052, subd. 3.

B. Minneapolis: February 2010

In February 2010, Defendant Jon Hinchliff (“Hinchliff’), an officer with the Minneapolis Police Department, publicly distributed a fact sheet regarding the Plaintiffs prior sexual offenses. (R & R at 715.) Plaintiff disputes the accuracy of this fact sheet, specifically challenging its description of his prior offenses, victim pool, and the fact it including dismissed charges. (Id. at 715-16.)

C. Bloomington: March 2010

In March 2010, Defendant Ed Hanson (“Hanson”), a detective with the Blooming-ton Police Department, also distributed fact sheets regarding Plaintiffs sex offender status. (Id. at 715.) These fact sheets described Plaintiffs charged offenses, including the 1997 Charges, and including those that were ultimately dismissed. (Id.) Plaintiff again disputes the accuracy of the information contained on this fact sheet and also claims to have received a threatening phone call from a Bloomington resident. (Id. at 715-16.)

D. DOC Documents

In April 2010, Plaintiff requested and received “a stack of papers” from the DOC constituting his file with that agency. (Id. at 715.) This included a 2002 End of Confinement Risk Assessment issued by the ECRC; ‘ a 2002 Sex Offender Risk Assessment Recommendation prepared by Defendant Jack Rusinoff (“Rusinoff’) for the ECRC; a 1999 Risk Level Recommendation prepared by Defendant Dwight Close (“Close”) for the ECRC; and a 2010 memorandum from Defendant Jeremy Britzius (“Britzius”) regarding the Plaintiffs request for a risk-level-reduction (collectively, “DOC Documents”). (Id.) Plaintiff disputes the accuracy of the information contained in these reports. (See id. at 716-18.) According to the Plaintiff, the inaccuracies are a violation of his “constitutional rights” and evidence a conspiracy amongst the various Defendants to commit said violations. (See id.)

E. 2010 Risk Level Determination and Appeal

Also in 2010, the ECRC re-assesséd the Plaintiff and issued a new Risk Assessment Report. (Id. at 718.) Plaintiff alleges that as part of this re-assessment, he questioned whether Defendant Michélle Murphy (“Murphy”) was going to use the “false ‘official’” documents in the DOC’s file. (Id.) According to the Plaintiff, Murphy said the Minnesota legislature had given the ECRC the authority to do whatever it wanted and thus they would consider these “false” documents. (Id.) The ECRC decided to maintain Plaintiffs Level III designation, which Plaintiff claims is a further violation of his “constitutional rights.” (Id.)

Plaintiff appealed the ECRC’s Risk Assessment Report and the matter was heard by Defendant Administrative Law Judge (“ALJ”) Barbara Neilson (“ALJ Neilson”). (Id. at 718.)' In affirming the ECRC’s decision, ALJ Neilson made numerous findings and discussed Plaintiffs 1984 conviction as well as the DOC Documents. (Id.) Plaintiff asserts these findings are false and constitute a violation of his constitutional rights and a continuation of the conspiracy against him. (Id.)

F. Center City: February 2011

Plaintiff moved to Center City Minnesota in February 2011. (Id.) A public meeting was held at which information about the Plaintiff was presented by Defendant Patricia Moen (“Moen”), a Minnesota state official. (Id.) Plaintiff alleges Moen not only disseminated false information about his offense history, but also required he provide his cell phone number, which was then made publicly available. (Id. at 718-19.) Plaintiff later claims he received , a threatening phone call. (Id. at 718.), In addition to being a continuation of the conspiracy against him and a violation of his constitutional rights, Plaintiff contends the public dissemination of his cell phone constitutes a violation of the MGDPA. (Id.)

G. Minneapolis: July 2011

In July 2011, Plaintiff moved back to Minneapolis and registered with the Minneapolis Police Department. (Id.) Hinchliff again issued a fact sheet to the public which Plaintiff claims contained both old and new false statements about his -criminal history and victim type. (Id.) According to Plaintiff, Hinchliff stated he received the information on this fact sheet “from the Internet.” (Id.) Plaintiff claims posting the “false information” about him online, as well as distribution of the fact sheet, is a violation of his constitutional rights. (Id.)

H. Columbia Heights: July 2013

Sometime in 2013, Plaintiff moved to Hilltop, Minnesota. (Id. at 719.) In July 2013, Defendant Scott Nadeau (“Nadeau”), Chief of Police for the Columbia Heights Police Department, distributed a letter to residents informing them of a community meeting about Plaintiff. (Id.) Included with this letter was another fact sheet about Plaintiff. (Id.) Plaintiff contends this fact sheet contained false information about him in violation of his constitutional rights. (Id.)

I. Litigation

Precisely what claims Plaintiff asserts are unclear. (See R & R at 719.) Liberally construing the Plaintiffs Complaint, he claims all Defendants in their individual and official capacities' violated his Fifth, Eighth, Eleventh, and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983; conspired to violate his civil rights under 42 U.S.C. § 1985; and defamed him. (See id. at 719-20.) See Stone v. Harry, 364 F.3d 912, 914 (8th Cir.2004) (“pro se complaints are to be construed liberally”). Plaintiff also raises a claim against Moen for violation of the MGDPA, Minn.Stat. § 13.01 et seq. (See R & R at 719-20.) Plaintiff asks for $500,000 in compensatory damages from each Defendant as well as punitive damages in an amount to be determined at trial. (See id.) Finally, Plaintiff requests an order directing the Minnesota Attorney General to file theft charges against the individual Defendants for drawing a pay check while not performing their job duties. (See id.)

After extensively reviewing the facts and law related to the Plaintiffs claims, see generally R & R, the Magistrate Judge recommended that the Defendants’ motions to dismiss be granted and any remaining state claims, including the MGDPA claim, be dismissed without prejudice. (Id. at 742-48.) The Magistrate Judge recommended that Plaintiffs claims against ALJ Neilson be dismissed on the grounds of judicial immunity. (Id. at 721-22.) The Magistrate Judge further recommended that . Plaintiffs federal claims against the State Defendants be dismissed on the following bases: (1) the Eleventh Amendment (id. at 722-23); (2) the fact that none of the State Defendants were federal defendants (id. at 723); (3) failure to plead, any facts related to cruel and unusual punishment (id. at 724); (4) failure to identify a protected liberty or property interest (id. at 724 — 25)'; (5) failure to allege any conscious-shocking conduct (id. at 724-26); and (6) failure to allege facts sufficient to meet both the agreement and purpose elements of conspiracy (id. at 727-28). The Magistrate-Judge.similarly recommended that Plaintiffs state defamation claims be dismissed because they fell outside the applicable two-year statute of limitations. (Id. at 728-29.) Finally, the R & R recommended that Plaintiffs MGDPA claim against Defendant Moen be dismissed, without prejudice, as it was a state law claim, id. at 729-30, declining to exercise supplemental jurisdiction over any of Plaintiffs remaining state law claims. (Id. at 742-43.).

The Magistrate Judge then examined Plaintiffs claims against the Columbia Heights Defendants. (Id. at 730-37.) The R & R first noted that Plaintiffs service on the City of .Columbia Heights was insufficient, id. at 730-31, but considered the merits of Pláintiff s federal claims nonetheless. (Id. at 731.) The Magistrate Judge concluded that Plaintiffs federal claims against the Columbia Heights Defendants failed for the same reasons his federal claims failed as to the State Defendants, id. at 731-32, 733-34, and because Plaintiff failed to identify any government poliey leading to the alleged violations of his constitutional and civil rights. (Id. at 732-33.) Finally, the R & R concluded that Plaintiffs state defamation claims against the Columbia Heights Defendants should be dismissed because those defendants were entitled to absolute immunity as to their actions compiling and distributing the fact sheets-regarding Plaintiff. (Id. at 734-37.)

The Magistrate Judge next examined Plaintiffs claims against the Minneapolis Defendants. (Id. at 737-42.) For the same reasons that Plaintiffs federal claims against the State Defendants be dismissed, the R & R recommended that Plaintiffs federal claims against the Minneapolis Defendants be dismissed. (Id. at 737-39.) The R & R recommended that Plaintiffs state defamation claim be dismissed as time-barred under the two-year statute of limitations. (Id. at 739-40.)

Lastly, the Magistrate Judge considered Plaintiff’s claims against the Bloomington Defendants. (Id. at 739-42.) For the same reasons that Plaintiffs federal claims against the State Defendants should be dismissed, the R & R recommended that Plaintiffs federal claims against the Bloomington Defendants be dismissed. (Id. at 740-42.) The R & R further recommended that Plaintiff’s state claim for defamation be dismissed as time-barred under the two-year statute of limitations. (Id: at 741-42.)

Plaintiff filed his objections to the R & R in a timely, fashion. (See ' Objections.) The various Defendants, all filed timely responses claiming that Plaintiff failed to raise any meritorious legal or factual arguments ..in his objections. (Columbia Heights and Bloomington Defendants’ Response to Plaintiffs Objections at 1 [Doc. No. 77]; Defendant Minneapolis’ Response to Plaintiffs Objections at 2 [Doe, No. 79]; State Defendants’ Response to Plaintiffs Objections, at 1 [Doc. No., 81].) Plaintiff subsequently filed three (3) documents which the Court construes as replies to-the Defendants’ responses (collectively, “Replies”). (See Reply to Response of Ryan M. Zipfi [Doc. No. 83]; Resonse [sic] to Defendant’s Motion to Dismiss [Doc. No. 84]; Plaintiffs Response to State Defendant’s Response to Dismiss [Doc. No. 85].) Lastly, Plaintiff filed a Motion for Reconsideration [Doc. No. 86].

II. , DISCUSSION

A district court must make an independent evaluation of those portions of an-R & R to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. See 28 U.S.C. § v 636(b)(1)(C); see also Fed. R.Civ.R 72(b); D. Minn. LR 72.2(b). Local Rule'" 72.2(b)(1) requires parties to “serve and file specific written objections to a magistrate judge’s proposed findings and recommendations....” The specific portions of the report and recommendation objected to should be identified and the bases for those objections provided. Montgomery v. Compass Airlines, LLC, No. CIV. 14-557 (JRT/FLN), 98 F.Supp.3d 1012, 1016-17, 2015 WL 1522248, at *3 (D.Minn. Mar. 30, 2015); Mayer v. Walvatne, No. 07-1958 (JRT/RLE), 2008 WL 4527774, at *2 (D.Minn. Sept. 28, 2008).

Although difficult to discern precisely what Plaintiff’s objections are, the Court construes his objections to the R & R as follows: (1) that the allegedly incorrect information about the Plaintiff contained in Britzius’ memorandum was not properly considered (Objections at 3); (2) that the R & R’s recommendation to dismiss the 42 U.S.C. § 1985 conspiracy claim against Murphy was erroneous (id.); (3) that the R & R improperly dismissed Plaintiffs 42 U.S.C. § 1985 conspiracy and MGDPA claims against Moen (id.); (4) that the R & R erred by recommending dismissal of Plaintiffs claims against ALJ Neilson (id. at 3-4); (5) that the R & R’s conclusions regarding service on Nadeau were incorrect, that Plaintiffs . defamation claim against Nadeau is within the statute of limitations, and that the recommendation to dismiss Plaintiffs claims against the other Columbia Heights Defendants was improper (id. at 4); (6) that the R & R did not review the exhibits to Plaintiffs Complaint under the appropriate ' standard when considering a motion to dismiss (id.); (7) that the R & R applied the wrong statute of limitations to Plaintiffs defamation claims against the State Defendants (id. at 5); and (8) a generalized objection, consisting of a recitation of the Plaintiffs claims and alleged facts. (See generally id. at 1-3, 5 — 6; Replies [Doc Nos. 83, 84, 85]; Motion for Reconsideration [Doc. No. 86].)

A. Standard of Review for Defendants’ Motions to Dismiss

Ultimately, the R & R recommended granting all of the Defendants’ motions to dismiss. (R & R at 742^3.) As described above, Plaintiffs generalized objections to the R & R challenge this recommendation. Thus, an examination of the standard by which a motion to dismiss is granted is warranted.

Federal, Rule of Civil Procedure 8 requires that a complaint present “a.short and plain statement of the,claim .showing that the pleader is entitled to relief.” To meet this standard, and survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 'that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although a complaint is not required to contain detailed factual allegations, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.”’ Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). The plausibility standard requires a plaintiff to show at the pleading stage that success on the merits is more than a “sheer possibility.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.2009) (citation omit-‘ ted). It is not, however, a “probability requirement.” Id. (citation omitted). Thus, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts is improbable, and ‘that a recovery is very remote and unlikely.’ ” Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (citation omitted).

“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, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Several principles guide courts in determining whether a complaint meets this standard. First, the court must take the plaintiffs factual allegations as true and grant all reasonable inferences in favor of the plaintiff. Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir.2009). This tenet does not apply, however, to legal conclusions or “formulaic recitation of the elements of a cause of action;” such allegations may properly be set aside. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In addition, some factual allegations may. be so indeterminate that they require “further factual enhancement” in order to state a claim. Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955.) Finally, the complaint “should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden, 588 F.3d at 594.

Evaluation of a complaint upon a motion to dismiss is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (citation omitted), A court may consider the complaint, matters of public record,orders, materials embraced by, the complaint, and exhibits attached to the complaint in deciding a motion to dismiss under Rule 12(b)(6). Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.1999).

The Magistrate Judge employed precisely this standard when considering the Defendants’ motions to dismiss. (See R & R at 713, n. 3 and n. 5, 719-21.) Therefore, to the extent that Plaintiffs objections assert the wrong standard was applied, those objections are overruled.

B. Objection: Failure to Consider Information in the Britzius Memorandum

Plaintiff objects that the Britzius memorandum regarding Plaintiffs 2010 risk level reassessment, which Plaintiff alleges contains false information, was not properly considered by the R & R. (Objections at 3.) However, the R & R explicitly addresses Plaintiffs claims related to this memorandum and the allegedly false information it contains. (R & R at 717-18.) The allegedly false information is not actually from the Britzius memorandum, but comes from two (2) pages of Close’s report which were “sandwiched in between” the pages of Britzius’ memorandum in the Plaintiffs exhibits. (Id. at 717, n. 7.) Britzius’ memorandum does not contain the allegedly false information that Plaintiff claims it does. (See id. at 717-18.)'

Notably, in considering Plaintiffs 42 U.S.C. § 1983 claims against the State Defendants, the R & R states “[a]ccepting the allegations in the Complaint as true ... the statements made by Close, Rusinoff, and Britzius, and Moen, even if at times inaccurate,” did not “shock the conscience or were made in an arbitrary or capricious fashion” such that the Plaintiff had a substantive-due process claim under the Fourteenth Amendment. (R & R at 725 (emphasis added).) The Magistrate Judge properly assumed the Plaintiffs allegations about the inaccurate information in the DOC Documents were true. See United States ex rel. Raynor v. Nat’l Rural Utils. Coop. Fin., Corp., 690 F.3d 951, 955 (8th Cir.2012) (directing that when considering a motion to dismiss, all the complainant’s facts be construed as true). Furthermore, the Magistrate Judge applied the correct legal standard. See Kingsley v. Hendrickson, — U.S. -, 135 S.Ct. 2466, 2472, 192 L.Ed.2d 416 (2015) (directing that liability for negligently inflicted harm does not give rise to a constitutional due process claim). Plaintiffs allegations that Britzius’ memorandum contained inaccurate information were properly considered. Even if Britzius’ memorandum contained false information, Plaintiffs federal claims must still be dismissed. Plaintiffs objection is overruled.

C. Objection: Improper Dismissal of Plaintiff’s Conspiracy Claim Against Murphy

Plaintiff asserts that “Defendant Murphy is keeping to [sic] conspiracy alive” by using the reports of Close, Britzius, and Rusinoff in assessing Plaintiffs Risk Level, despite knowing information within those reports is false. (Objections at 3.) The Court construes this as an objection to the dismissal of Plaintiffs 42 U.S.C. § 1985 conspiracy claim against Murphy.

To establish a conspiracy under § 1985, a plaintiff must prove: 1) the existence of a conspiracy; 2) a purpose in the conspiracy to deprive him of his civil rights; 3) an act in furtherance of the conspiracy; and 4) injury. R.S. ex rel. S.S. v. Minnewaska Area Sch. Dist. No. 2149, 894 F.Supp.2d 1128, 1144 (D.Minn.2012). The purpose element requires a showing of some “class-based, invidiously discriminatory animus behind the conspirators’ action.” Id. at 1145 (citations and quotations omitted). Plaintiff offered nothing more than a general allegation that a conspiracy existed among the Defendants. (See R & R at 727-28; Compl. at 6, 11, 15, 16, 18-19 [Doc. No. 1]; Am. Compl. at 2 [Doc. No. 51]) He presented ho particulars on how any of the Defendants agreed to violate his civil rights. (See R & R at 727-28.) Nor did Plaintiff allege facts to satisfy the purpose element for a conspiracy, see R & R at 728, considering sex offender status is not a suspect classification. See Weems v. Little Rock Police Dep’t, 453 F.3d 1010, 1016 (8th Cir.2006) (sex offender status not suspect classification). Plaintiffs 42 U.S.C. § 1985 claim against Murphy is properly dismissed on this record. Plaintiffs objection is overruled.

D. Objection: Improper Dismissal of Plaintiffs Conspiracy and MGDPA Claims Against Moen

Plaintiff asserts “Defendant Moen is just as guilty as the rest” for “illegally giving out” his phone number and “keeping with the constant conspiracy” to violate his civil rights. (Objections at 3.) The Court construes this as an objection to the recommendation that Plaintiffs 42 U.S.C. § 1985 conspiracy and MGDPA claims against Moen be dismissed.

For the same reasons discussed in Sect. 11(C) above, dismissal of Plaintiffs conspiracy charge against Moen is appropriate ' and the Plaintiffs objection is overruled.

Similarly, the R & R’s analysis of Plaintiffs MGDPA claim against Moen is correct. (See R & R at 729-30.) The statute of limitations on. .a MGDPA claim is six years. Manteuffel v. City of North St. Paul, 570 N.W.2d 807, 812 (Minn.App. 1997). Plaintiff alleges Moen distributed his cell phone in early 2011. (See R & R at 718-19.) Thus, Plaintiffs claim is timely. (See id.) However, timeliness is not why the claim must be dismissed.

Moen, as an individual, cannot face a claim for violation of the MGDPA because that statute does not impose individual liability. Minn.Stat. § 13.08, subd. 8 (directing that claims may be brought against a “responsible authority or government entity”); Evenstad v. Herberg, 994 F.Supp.2d 995, 1005 (D.Minn.2014); Walker v. Scott Cnty., 518 N.W.2d 76, 78 (Minn.Ct.App.1994). Nor could Plaintiff bring a claim in federal court against Moen in her official capacity as it would be barred by the Eleventh Amendment. See Evenstad, 994 F.Supp.2d at 1006 (dismissing MGDPA claim because the MGDPA does not indicate an intent by Minnesota to subject itself to suit in federal court); see also Soto v. John Defendants 1-5, No. CIV. 13-640 (DWF/SER), 2014 WL 1607615, at *12 (D.Minn. Apr. 15, 2014) aff'd sub nom. Soto v. Minnesota Bureau of Criminal Apprehension, 581 Fed.Appx. 606 (8th Cir.2014) (barring state law claims against state employees in their official capacity pursuant to the Eleventh Amendment). As the Magistrate Judge noted, Plaintiff is free to bring his MGDPA claim against Moen in state court, but not federal court. (R & R at 729-30.) Dismissal, without prejudice, of Plaintiffs MGDPA claim is appropriate. Plaintiffs objection is overruled.

E. Objection: Dismissal of Plaintiff’s Claims Against ALJ Neilson was Improper

Plaintiff asserts “ALJ Neilson is the biggest violator” because she “lied” in her decision upholding Plaintiffs 2010 risk level determination by making certain findings as to the Plaintiffs conduct underlying his 1984 conviction, (Objections at 4.) Furthermore, Plaintiff claims ALJ Neil-son’s use of this allegedly false information is a violation of his “Due Process Right’s [sic] and Equal Protection Rights,” and that by using such information ALJ Neil-son is “continuing the conspiracy....” (Id. at 5.) The Court construes this as an objection to the R & R’s recommendation to dismiss Plaintiffs claims against ALJ Neilson.

State judicial officers are entitled to judicial immunity against claims under 42 U.S.C. § 1983 as long as they are acting within them judicial capacity and do not act in “complete absence of all jurisdiction.” Tennant v. Anderson, 453 Fed.Appx. 657, 658 (8th Cir.2011) (citing Mireles v. Waco, 502 U.S. 9, 11-12, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991)). ALJ Neilson was plainly acting within her judicial capacity and jurisdiction when she upheld the ECRC’s risk level determination regarding the Plaintiff, (See R & R at 721-22.) Importantly, even if ALJ Neilson’s statements were erroneous and made maliciously, she would still be entitled to judicial immunity. See Schottel v. Young, 687 F.3d 370, 373 (8th Cir.2012).

Plaintiffs objection related to the alleged intent behind ALJ Neilson’s statements and the inaccurate nature of those statements is misplaced. Even assuming everything Plaintiff asserts were true, ALJ Neilson is entitled to judicial immunity, meaning Plaintiffs claims must be dismissed. (See R & R at ,720-22.) , Plaintiffs objection is overruled.

F. Objection: Improper Dismissal of Plaintiffs Claims Against the Columbia Heights Defendants

Plaintiff appears to assert numerous objections to the R & R’s recommendation that his claims against Nadeau, the Columbia Heights Police Department, and the City of Columbia Heights (collectively, “Columbia Heights Defendants”) be dismissed. (See Objections at 4.)

1. Objection: the Columbia Heights Defendants Were Properly Served

Plaintiff contends “Nadeau was properly served as is evident by the response of his Attorney Ryan M. Zipf....” (Objections at 4.) The Court construes this as an objection to the R & R’s conclusions regarding service on' the Columbia Heights Defendants. (See R & R at 730-31.)

The Magistrate Judge declined to dismiss Plaintiffs claims against the Columbia Heights Defendants on the basis of insufficient service and instead considered the merits of those claims. (R '& R at 730-31.) This Court agrees with that decision, rendering the issue of service moot. However, because the Plaintiff-appears to directly challenge the R & R’s findings related to service, see Objections at 4, the Court will review those findings.

Plaintiff misconstrues the R & R’s findings on the issue of service. Nadeau was in-fact served. (See R & R at 730-31.) However, the problem is that service on Nadeau was not effective as to the other Columbia Heights Defendants whom Plaintiffs claims are properly asserted against. (See id. at 731.)

Municipal police departments, such as the Columbia Heights Police Department, are not entities subject to suit. Anderson v. City of Hopkins, 805 F.Supp.2d 712, 719 (D.Minn.2011). Instead, they are departments or subdivisions of their city government. See Ketchum v. City of W. Memphis, Ark., 974 F.2d 81, 82 (8th Cir.1992). There is no evidence Plaintiff served the Columbia Heights Police Department. (R & R at 730-31.) Even if Plaintiff had properly served this entity, the issue would be moot as the Columbia Heights Police Department is not subject to suit.

Municipalities, like the City of Columbia Heights, may be served through their chief executive officer or city clerk. See Fed. R.Civ.P. 4(j)(2); Minn. R. Civ. P. 4.03(e)(2). Plaintiffs service on Nadeau, who was chief of the Columbia Heights Police Department, was not effective as to the City of Columbia Heights. There is no evidence in the record that the City of Columbia Heights was ever served. (R & R at 730-31.) That Mr. Zipf, as counsel for the Columbia Heights Defendants, answered Plaintiff’s complaint does not excuse Plaintiff from his service obligations. See Sieg v. Karnes, 693 F.2d 803, 807 (8th Cir.1982) (actual notice of a lawsuit does not remedy jurisdictional issues related to defective service); Baden v. Craig-Hallum, Inc., 115 F.R.D. 582, 586, n. 4 (D.Minn.1987) (“The mere fact that a defendant has received actual notice of the pending action is not sufficient if there has not been compliance with the plain requirements of [Fed.R.Civ.P.] 4.”).

Failure to comply with service requirements can, at the discretion of the court, serve as the basis for dismissal under Fed. R.Civ.P. 12(b)(5). See Marshall v. Warwick, 155 F.3d 1027, 1032 (8th Cir.1998) (failure in service may warrant dismissal, but the appropriate action is ultimately within the court’s discretion); 3M Co. v. Darlet-Marchante-Technologie SA, No. CIV. 08-827 (JNE/SRN), 2009 WL 1228245, at *6 (D.Minn. May 5, 2009) (same). However, as previously noted, the R & R did not recommend, nor does this Court dismiss Plaintiffs claims on the basis of service. Plaintiffs objection related to service on the Columbia Heights Defendants is overruled.

2. Objection: Dismissal of Plaintiffs Defamation Claim Is Improper Because it Falls Within the Statute of Limitations

Plaintiff asserts, “The Court can dismiss the defamation claim, if it seems [sic] fit, except for Nadeau, as his actions are within” 'the two-year statute of limitations. (Objections at 4.) The Court construes this as an objection to the R & R’s recommendation that Plaintiffs defamation claim against the Columbia Heights Defendants be dismissed. (See R & R at 733-37.)

The Magistrate Judge explicitly noted that the alleged defamatory statements made by the Columbia Heights Defendants were within the two-year statute of limitations. (R & R at 733-34.) However, the Columbia Heights Defendants assert they are entitled to absolute or qualified immunity on Plaintiffs defamation claim. (Id.) The Magistrate Judge, in- a careful analysis, determined that, the Columbia Heights Defendants were not entitled to statutory immunity under Minn.Stat. § 244.052, subd. 7 (id. at 733-34), but were entitled to absolute immunity (id. at 734-37). The Court agrees with this analysis. Thus, Plaintiffs defamation claim is dismissed not because of issues related to the statute of limitations, but rather because the Columbia Heights Defendants are entitled to absolute immunity from such a claim. Plaintiffs objection is overruled.

3. Objection: Dismissal of Plaintiffs Federal Claims Against the Columbia Heights Defendants Is Improper

Finally, Plaintiff further contends that “the Court cannot dismiss the other claims of Plaintiff Ernst,” because they relate to Plaintiffs civil rights and the Columbia Heights Defendants’ violation of those rights. (Objections at 4.) The Court construes this as a general objection to the R & R’s recommendation that Plaintiffs federal claims against the Columbia Heights Defendants be dismissed.

Plaintiff offers no authority for his contention that because his claims related to his civil rights, they may not be dismissed. This Court can find no support for such an argument.. Rather, Plaintiffs constitutional and civil rights claims must “contain sufficient factual allegations to ‘state a claim to relief that is plausible on its face’ ” to avoid a motion to dismiss under Fed. R.Civ.P. 12(b)(6). Smithrud v. City of St. Paul, 746 F.3d 391, 397 (8th Cir.2014) (quoting Twombly, 550 U.S. at 547, 127 S.Ct. 1955). As the R & R plainly describes, Plaintiffs constitutional and civil rights claims fail to meet this standard. (R & R at 731-34.) Plaintiffs objection is overruled.

G. Objection: Plaintiffs Exhibits Were Not Reviewed Under the Appropriate Standard

Plaintiff asserts he “has stated a claim” but that “Counsel” has a belief “this case can be dismissed through false and untruthful statements” that “omit the actual facts....” (Objections at 4.) “The Exhibits do not lie, as they are Court Documents and are factual.” (Id.) The Court‘construes this as an objection that the Plaintiffs exhibits, which were attached to his Complaint [Doc. No. 1], were not properly considered in the R & R.

“In deciding a motion to dismiss under Rule 12(b)(6), a court assumes all facts in the complaint to be true and construes all reasonable inferences most favorably to the complainant.” Raynor, 690 F.3d at 955. When considering a motion to dismiss, generally a court will not consider materials outside the pleadings, Greenman v. Jessen, 787 F.3d 882, 887 (8th Cir.2015). However, courts may consider exhibits attached to the complaint and some materials that are part of the public record. Id.

The Magistrate Judge identified and used this standard when assessing the Defendants’ motions to dismiss. (R & R at 713, n. 3 and n. 5, 720.) Plaintiff’s exhibits were considered and frequently cited. (See generally R & R.) Plaintiff’s allegations and purported facts were also taken as true. (See, e.g. id. at 721-22, 725-26, 727-28, 729, 733, 734.) This. Court has similarly taken Plaintiffs. allegations and facts as true, as well as considered the exhibits Plaintiff presented. Plaintiffs objection is without merit and overruled.

H. Objection: the Wrong Statute of Limitations Was Applied to Plaintiffs Defamation Claims Against the State Defendants

Plaintiff disputes that the two-year statute of limitations applies, to his defamation claims against the State Defendants. (Objections at 5.) He claims the appropriate statute of limitations period “is five years in a Federal Action, involving Libel and Slander.” (Id.) The Court construes this as an objection that the wrong statute of limitations was applied to Plaintiffs defamation claim against the State Defendants.

Defamation is a common-law claim. See Moreno v. Crookston Times Printing Co., 610 N.W.2d 321, 327-28 (Minn.2000) (“The common law claim of defamation at civil law ... redress[es] though injuries to reputation caused by the publication of false information damaging to another’s reputation.”); Glenn v. Daddy Rocks, Inc., 171 F.Supp.2d 943, 948 (D.Minn.2001) (applying Minnesota law to defendant’s defamation counterclaim). “[A] cause of action under state law is, of course, governed by the applicable state law limitations period, even when such a claim is heard in federal court.” Firstcom, Inc. v. Qwest Commc’ns, 618 F.Supp.2d 1001, 1010 (D.Minn,2007) aff'd sub nom. Firstcom, Inc. v. Qwest Corp., 555 F.3d 669 (8th Cir.2009). MinmStat. § 541.07(1) sets a two-year statute of limitations on actions for “libel and slander.” See Issaenko v. Univ. of Minnesota, 57 F.Supp.3d 985, 1029 (D.Minh.2014) (“Under Minnesota law, a two-year statute of limitations applies to claims- for defamation.”). Plaintiffs ' defamation claim against the State Defendants is a state law claim and the two-year statute of limitations. applies. Plaintiffs objection is without merit and is overruled.

L Objection: General Restatement of the Plaintiffs Claims and Allegations

Plaintiff, in numerous documents, essentially restates his claims and allegations against the various Defendants.' (See Objections at 1-3, 5-6; Replies [Doc. Nos. 83, 84, 85]; Motion for Reconsideration [Doc. No. 86].) The Court construes this as a general objection that the R & R failed to consider Plaintiffs claims and allegations.

Plaintiffs claims and allegations were extensively examined in the R & R. (See generally R & R.) As detailed above, the Magistrate Judge applied the appropriate legal standards when assessing Plaintiffs claims. Merely restating what Plaintiff previously asserted in his pleadings does not constitute a viable objection to the R & R, See Carlone v. Heat & Frost Insulators & Allied Workers Local 34, No. 14-CV-579 (SRN/JSM), 2014 WL 5438493, at *6 (D.Minn. Oct. 23, 2014) (overruling Plaintiffs objection which was merely a restatement of claims alleged in her complaint when the magistrate judge addressed those claims). Plaintiffs objection is overruled.

III. ORDER

Based on the foregoing, and all the files, records, and proceedings-herein, IT IS HEREBY ORDERED THAT:

1. Plaintiffs Objections to the Magistrate Judge’s Report & Recommendation [Doc. No. 76] are OVERRULED;

2. Plaintiffs Motion for Reconsideration [Doc. No. 86] is DENIED AS MOOT;

3. The Magistrate Judge’s R & R [Doc. No. 75] is ADOPTED;

4. Defendants’ Motions to Dismiss [Doc. Nos. 13, 18, 30, and 40] are GRANTED; and

5. The Court declines to exercise supplemental jurisdiction over any remaining state claims, including Plaintiffs MGDPA claim against Moen, and such claims are DISMISSED WITHOUT PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Ronald R. Ernst, Plaintiff,

v.

Jon Hinchliff, Dwight Close, Jeremy Britzius, Jack Rusinoff, Ed Hanson, Barbara L. Neilson, ADL, Patricia Moen, Michelle Murphy, Scot' Nadeau, Minneapolis Police Dept., MN Department of Corrections, Bloomington, ' MN Police Department, State of Minnesota, and Columbia Heights Police Department, Defendants.,

REPORT & RECOMMENDATION

TONY N. LEUNG, United States Magistrate Judge.

I. INTRODUCTION

This matter comes before the Court, United States Magistrate Judge Tony N. Leung, on four motions to dismiss: Defendahts Close, Britzius, - Rusinoff, Neilson, Moen and Murphy’s (“State Defendants”) Motion to Dismiss (ECF No. 13); Defendants Nadeau and Columbia Heights Police Department’s (“Columbia Heights De-. fendants”) Motion to- Dismiss (ECF No. 18); Defendant Hinehliff and Minneapolis Police Dept.’s (“Minneapolis Defendants”) Motion to Dismiss (ECF . No. 30); and Defendants Hanson and Bloomington, MN Police Dept.’s (“Bloomington Defendants”) Motion to Dismiss (ECF No. 40). These motions have been referred to the undersigned for .a report and recommendation to the district court, the Honorable Susan Richard, Nelson, District Judge for the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1.

A hearing was held. Plaintiff appeared pro se. Angela Helseth Kiese appeared on behalf of the State Defendants. Ryan Zipf appeared on behalf of the Bloomington and Columbia Heights Defendants. Brian Scott Carter appeared on behalf, of the Minneapolis Defendants.

Based upon the record, memoranda, and the proceedings herein, IT IS HEREBY RECOMMENDED that Defendants Close, Britzius, Rusinoff, Neilson, Moen and Murphy’s Motion to Dismiss (ECF No. 13) BE GRANTED; Defendants Nadeau and Columbia Heights Police Department’s Motion to Dismiss (ECF No. 18) BE GRANTED; Defendant Hinehliff and Minneapolis Police Dept.’s Motion to Dismiss (ECF No. 30) BE GRANTED; and Defendants Hanson and-Bloomington, MN Police Dept.’s Motion to Dismiss (ECF No. 40) BE GRANTED.

II. BACKGROUND

This case concerns information distributed to communities regarding Plaintiff. Plaintiff “is required to register as a sex offender under Minn.Stat. § 243.166 (1996) because he was charged with a felony and was convicted of a gross-misdemeanor offense arising out of the same set of circumstances.” Ernst v. State, No. A03-63, 2003 WL 23023992, at *1 n. 1 (Minn.App. Dec. 30, 2003).

A. Prior Offenses

In 1984, Plaintiff was charged with and pleaded guilty to Criihinal Attempt to Commit Sexual Assault on a Child in the State of Colorado. (Compl. at 7; Exs. at 14-15.) The child was 11 years old. (Exs. at 16-17.) Plaintiff states that he “touched the abdomen of [the] child.” (Compl. at 7.)

In 1997, Plaintiff was charged with “several criminal counts,” including at least one charge of felony indecent exposure' in state district court in Scott County, Minnesota. (Compl. at 8, 10; see Exs. at 3-9; ECF No. 1-3 at 3-4.) See Ernst, 2003 "WL 23023992, at *1. According to Plaintiff, the charged offenses were a culmination of incidents.

Plaintiff states that he was renting a basement room from a woman who had two children, a 13-year-old daughter and a 15-year-old son. (Compl. at 8.) Upon returning home from being out of town, Plaintiff discovered that the lock on his bedroom door had been broken off. (Compl. at 8.) The son told Plaintiff that his mother had broken the lock “to see what she could find” and found adult magazines under Plaintiffs mattress and adult movies in Plaintiffs dresser. (Compl. at 10.) When the mother left for work, the son and a friend of his looked through the magazines and the friend watched the videos. (Compl. at 10.) Around the same time, the daughter “saw the penis of Plaintiff, even though it was not intentional.” (Compl. at 9.)

Plaintiff pleaded guilty to one count of felony' indecent exposure for “exposing] his private parts” to a minor child. (Exs. at 3; see Compl. at 9; Exs. at 23-24; ECF No. 13 at 4-5.) See Ernst, 2003 WL 23023992, at *1. The other charges were dismissed. (See Compl. at 9; ECF No. 1-3 at 4.) See Ernst, 2003 WL 23023992, at *1. Subsequently, it-was determined: that there were errors in the pre-sentence investigation-and Plaintiff did not have the requisite prior conviction for felony enhancement. (Compl. at 9, 11; see Exs. at 3-9, 23-24.) As a result, the indecent-exposure- offense was reduced to a gross misdemeanor.- •' (Compl. at 9; Exs. at 23-24; ECF No. 1-3 at 4-5.) See Ernst, 2003 WL 23023992, at *1.

Before he was “released] from custody” in connection with the indecent-exposure offense, Plaintiff was given a Minnesota Department of Public Safety Bureau of Criminal Apprehension, Sex Offender Notification and Registration Form — Minnesota Statute 243.166 form to complete. (Compl. at 11; Exs. at 27.) Plaintiff “filled out the [form], dated it and signed [it].” (Compl. at 11.) Plaintiff later discovered that his “Staff social worker” had “add[ed] the dismissed -charges from Scott County to show that [Plaintiff] was convict[ed] of other criminal behavior.” (Compl. at 11-12.) The “Charges/Petiti'ons” section of the form states, “(Charged @ Felony Ind. exp.) Gross Mis. Indec. Exposure.” (Exs. at 27.) The “Victim Information” section of the form states that Plaintiffs victims are ages 14, 15, and 16; both male and female; and were neighborhood- children. (Exs. at 27.) In the “M.O.” section, the form states, “Subject .exposed his penis to a 13 yr old Female, made a Sexual phone call to. a 14 yr old girl and showed pornographic video’s [sic] to (2) 15 yr old boys.” (Exs. at 27.)

According to Plaintiff, his social worker also told him that if the felony indecent-exposure charge had been dismissed “and recharged at the gross misdemeanor level, at what [Plaintiff] was sentenced, then [Plaintiff] would not have, to register.” (Compl. at 12.)

“In 2001, [Plaintiff] was arrested for failure to register, after argu[ing] with the Minnesota [Bureau of Criminal Apprehension] that he did not have to register as he did not have a predatory conviction.” (CompL at 12.) Plaintiff “went to trial ... and he was found guilty[] as he was charged with an offense that required registration.” (Compl. at 12; see ECF No. 1-3 at 5-6.)

In 2002, Plaintiff was given a Level III designation by the Minnesota Department of Corrections’s end-of-confinement review committee (“ECRC”). (Compl. at 13; see Exs. at. 28-34.) See Minn.Stat. § 244.052, subd. 3 (“The commissioner of corrections shall establish and administer end-of-confinement review committees at each state correctional facility and at each state treatment facility where predatory offenders are confined. The committees shall assess on a case-by-case basis the public risk posed by predatory offenders who are about to be released from confinement.”). Plaintiff was represented by counsel at the hearing. (Compl. at 13.)

B. Minneapolis: February 2010

In February 2010, while acting under color of law, Hinchliff “passed out a [fact sheet] to the public ... showing that Plaintiff had a conviction for sexual contact with an 11 year old female.” (Compl. at 7; see Compl. at 17; Exs. at 10.) The fact sheet contains a “Description of Offense” section, stating:

This offenders [sic] victim pool are minor aged females and attempts to corrupt minor aged males. His history shows a Colorado conviction (1984) for sexual contact with an 11 year old female. He was a renter at a location where an acquaintance 13 year old female witnessed an exposing incident. Previous related charges include expos•ing and lewd/lascivious conduct. Must register until 02/01/2025.

(Exs. at 10.)

Plaintiff states that he “did not have any sexual contact with that 11 year old girl” and Hinchliff

maliciously stated false statements to the public against the peace and dign[i]ty of Plaintiff, thereby violating his Constitutional Right[s] in Amendment 5th, 11th, & 14th, to be free from false accusations that are untrue, depriving the plaintiff [of] a.right or privilege secured by Federal Law while acting under Color of Law.

(Compl. at 7-8.) Plaintiff further states that he “has no convictions involving any minor aged males. His victim pool is not minor aged females. [He] has two convictions of minor aged females.” (Compl. at 8.) Plaintiff - states that, by including charges on the fact sheet that were dismissed, Hinchliff violated Plaintiffs due process rights. (Compl. at 10.)

C. Bloomington: March 2010

In March 2010, Hanson “of the Bloomington Police Department sent out [fact sheets] to the public about the presence of [Plaintiff] in[] the community.” (Compl. at 10; see Exs. at 2.) The “Offense” section of this fact sheet states: “Offender exposed himself to a 13 year old female. He also made a sexual phone call to a 14 year old female. . He also showed pornographic videos to (2) 15 year old boys. The offender was a neighbor to his victims.” (Exs. at 2.)

Plaintiff states that the statements regarding the phone call and pornographic videos are false because those charges were dismissed. (Compl. at 9.) Plaintiff states that “Hanson is trying to tell the public that [he] is guilty of these offenses by posting these statements to the [fact sheet], whereby violating [Plaintiffs] Constitutional Right[s].” (Compl. at 9.) Plaintiff states that Hanson’s “blatant disregard for the truth” has caused him emotional distress and “hardship in trying to find a place to live.” (Compl. at 9.) Plaintiff also states that “he received a threatening phone call from a Bloomington resident.” (Compl. at 9.)

D. DOC Documents

In April 2010, Plaintiff requested copies of his file from the Minnesota Department of Corrections (“DOC”) in order “to-find answers to this illegal Level [III] designation.” (Compl. at 13.) Plaintiff received “a stack of papers” containing, “many .damaging statements that -were not true.” (Compl. at 13.) This “stack of papers” included, among .other things,, a 2002 End of . Confinement Review Risk Assessment Report issued by the ;ECRC (Exs. at 28-30); a 2002 Sex Offender Risk Assessment Recommendation prepared by Rusinoff for the ECRC (Exs. at 31-34); a 1999 Risk Level Recommendation prepared by Close for the ECRC (Exs. at 36-37); and a 2010 memorandum to the ECRC by Britzius regarding Plaintiffs risk-level-reduction request (Exs. at 35, 38).

1. Rusinoff.

Plaintiff states that Rusinoff made- false statements -in both -the 2002 Risk Assessment Report and Risk Assessment Recommendation. (Compl. at 14.)

The Risk Assessment Report states that “[Plaintiffs] behavior includes entering security apartments without permission and befriending families before exposing.” (Exs. at 29.) .The Risk. Assessment Report also, states that Plaintiffs “[p]redatory.offense behavior”, includes “abducting ,or attempting to abduct a victim.” (Exs, at 29.) Plaintiff states that “[t]his is the i farthest from the truth, as [he] has never been investigated for abduction, or even charged with those offenses.” (Compl. at 14.)

Plaintiff challenges- four statements in Rusinoff s Risk Assessment Recommendation. First, Plaintiff challenges the statement that “[t]he victims have been females ranging in age from 10 to young adults....” (Exs. at 32.) Plaintiff states that “[t]his is false as [he] has never been charged with a 10 year old victim.” (Compl. at 14.) Second, Plaintiff challenges the statement that “[h]is prior adult felony record contains a conviction for Sexual Assault on a Child (1984),” (Exs. at 32), again asserting that sexual contact did not occur, (Compl. at 14; see Compl. at 7). Third, Plaintiff challenges the statement that “[h]e has a. total of 25 sex related convictions....” (Exs. at 33.) Plaintiff states that this statement is “[v]ery untrue, as there is [sic] 10 misdemeanors before 1980, a felony attempt in 1984, a gross misdemeanor in 1997, and a misdemeanor in 2001.” (Compl. at 14.) Plaintiff states that the pre-1980 convictions “were [for] charges of ‘Streaking’ when at that timeframe in history, it was the fad.” (Compl. at 11.) The fourth statement concerns Rusinoffs characterization of the physical nature of Plaintiffs offenses. In the Risk Assessment Recommendation, Rusinoff states, “Although [Plaintiffs] sexual offenses have not included physical assault, they do include some touch offenses .... ” (Exs. at 33; see also Exs. at 32 (“Most of [Plaintiffs] sex offense charges have been non-contact offenses, but he has engaged in sexual touching behavior when the opportunity presented itself.”). Plaintiff states that “Rusinoff contradicts his own statements by says [sic], that [P]laintiff has no physical offenses, but puts in statements that [Plaintiff touched the vagina area of an 11 year old female.” (Compl. at 14; see Exs. at 32 (“[Plaintiff] befriended a family, and he sexually .assaulted their ll-year-old daughter by placing his hand under the victim’s underwear and touching her genital area.”).)

Plaintiff states that Rusinoff “lies continuously in all of his papers, thereby violating] the Constitutional Right[s] of [Plaintiff], as he lists behavior for which [Plaintiff] has never been charged with. This pattern is the same as the other defendants in this action, to state that the plaintiff is a. person of predatory multiple behaviors.” (Compl. at 14.)

2. Close

In 1999, Close completed a Risk Level Recommendation for the ECRC. (Exs. at 36-37.) Plaintiff states that Close has “continued the pattern of false statements” by “listing the same false statements as Rusinoff.” (Compl. at 15.) Plaintiff asserts that DOC personnel “have [c]onspired to act against the plaintiff by disclosing false statements in State- of Minnesota files.” (Compl. at 15.)

Close’s Risk Level Recommendation includes a “Prior History” section with “Misdemeanor/Gross Misdemeanor” and “Felony” subgroups. (Exs. at 36-37.) There are two felonies listed: the 1984 “Sexual Assault on a Child,” which again references Plaintiff touching the “genital area” of an ll-year-old girl, and a 1992 “Attempted Larceny” in Wisconsin. (Exs. at 37.) Plaintiff states that, with respect to the 1984 “Sexual Assault on a Child offense[,] ... this have been proven before in other Exhibits that this Criminal behavio[r] of touching in the vagina did not occ[u]r.” (Compl. at 15.), Plaintiff further states:

The prior history of [Plaintiff] is so blatantly wrong that if [he] had committed all of these offenses, how was it done, by being in jail during the committing of offenses? The [1992] Attempted Larceny was not in Wisconsin, but in Colorado. These State workers cannot even read their own paperwork, relying on assumption that they believe that it should be, thereby violating the 11th Amendment of trying to punish [Plaintiff] for alle[ged] activity in other states.

(Compl. at 15.)

3. Britzius

Plaintiff asserts that “Britzius has continued the written assault on Plaintiff ... by stating that [he] has touched females sexually, and ... has exposed to females from 10 to young adult” in his 2010 memorandum regarding Plaintiffs risk-level-reduction request. (Compl. at 15.) Plaintiff “challenge^ Britzius] to show the Court a charge involving a 10 year old.” (Compl. at 15.) Plaintiff states:

This ongoing attack against [him] has gone on for the past 12 years, and in the process of filing false official documents, and in the process violating the sacred of Constitutional Right[s] [o]f [Plaintiff]. Britzius continues the “CONSPIRACY” that has been going on far too long. [Plaintiff] is being deprived of a Right, Priv[i]l[e]ge and immunity .guaranteed by the U.S. Constitution, under 1983, by persons acting under Color of Law.

(Compl. at 15.)

Britzius’s memo, however, does not explicitly reference a charge involving a “10 year old” or young adults. The closest statement is as follows: “While [Plaintiff] is technically eligible to request a risk reduction, a review of his sex offending history is notable for approximately 30-years of sexually victimizing others, primarily minor age females.” (Exs. at 38.)

E. 2010 Risk Level Determination

In 2010, the ECRC evaluated Plaintiff and issued another Risk Assessment. Report. (Exs. at 55-56.) Murphy was the ECRC chairperson at the time. (Compl. at 16; Exs. at 55-56.) Plaintiff asserts that, at the meeting to determine his risk level, he “questioned Murphy if she was going to use the ‘FALSE’ ‘OFFICIAL’ documents that were in the file. Murphy stated that she could use whatever she wanted. Murphy told [Plaintiff], [‘]The Minnesota Legislature gave, us the. [authority to .do whatever we want.[’]” (Compl. at 16-17.) Plaintiff asserts that

Murphy decided to side-step the previous false statements of the already listed defendants, and told [Plaintiff] that she was going to keep [Plaintiff] at the Level [III] statusí ] because he has a 30 year criminality span. She did not say that it was sexual, but implied that as she knew that [Plaintiff] did not have a Predatory conviction that required registration under Minnesota Statute 243.166,1996.

(Compl. at 17.)

Plaintiff asserts that “[t]he Minnesota Legislature does not give anybody the' right to violate anyone’s Constitutional Rights.” (Compl. at 17.) Plaintiff assert that “Murphy cannot" justifiably] use the illegal documents from[] Rusinoff, Close, Britzius, [his social worker] and the D.O.C. person who made up the previous [p]resent[en]ce [r]eports, but she did, [a]cting under ‘COLOR OF LAW.’” (Compl. at 17.)

F. 2010 Appeal of Risk Level Determination

Plaintiff appealed the Level III designation and the matter was heard by Administrative Law Judge (“ALJ”) Neilson with the .Office of Administrative Hearings. (Exs. at 39-54.) Plaintiff has attached the first 16 pages of ALJ Neilson’s decision affirming the Level III designation. (Exs. at 39-54.) ALJ.Neilson made extensive findings of'fact concerning Plaintiffs criminal history and prior ECRC assessments. (See Exs. at 39-54.) These findings include, among other things, discussion of the 1984 conviction and the documents prepared by Close, Rusinoff, and Britzius.. (See Exs. at 40, 43-44, 46-47, 49-50.) Plaintiff asserts many of ALJ Neilson’s findings are false for reasons stated above. (See Compl. at 18-19.) Plaintiff assérts that ALJ Neilson has “continued the ‘CONSPIRACY’ that is reported by other person[n]el at the [DOC].” (Compl. at 18.)

G. Center City: February 2011

In February 2011, Plaintiff moved to Center City, Minnesota. (Compl. at 16.) A public meeting was held at which Moen “discuss[ed] information about [Plaintiff].” (Compl. at 16.) Plaintiff asserts:

Moen stated that [Plaintiff] was convicted of having sexual contact with a[n] 11 year old girl. This [is] also false as it has already been proven to be wrong, as in earlier Exhibits. Moen also stated that [Plaintiff] has to give [c]ell phone numbers and the like. That is also false, as according to the Registration Statute, all [Plaintiff] has to provide is his residence address .and his employment.

(Compl. at 16 (citation omitted); see Exs. at 57.) Plaintiff states that, “[a]bout an hour after the meeting, [he] received a phone call on his cell phone, by an unknown" male,” wanting Plaintiff to meet him at the intersection of a highway and a county road. (Compl. at 16.)

Plaintiff asserts that “[t]hese State workers keep .lying to keep the ‘Conspiracy’ ongoing in attacking Plaintiff ... at every level they can.” (Compl. at 16.) Plaintiff asserts that “Moen gave out priv[i]ledged information, in violation of State Law, violation [Plaintiffs] Rights to be free of Harassment.” (Compl. at 16.)

H. Minneapolis: July 2011

Plaintiff moved back to Minneapolis and registered with the Minneapolis Police Department in July 2011. (Compl. at 17.) While acting under color of law, “Hinchliff again issued a [fact sheet] to the public, stating ... the same [illegal statements of his prior [fact sheets].” (Compl. at 17; see Compl. at 18.) This fact sheet, however, stated that “the age of alleged victims[ ] is now 13-14 male and female.” (Compl. at 17.) Plaintiff asserts that Hinchliff perpetuated the false statements of male victims and “sexual contact with minor females, of which [Plaintiff] has no convictions.” (Compl. at 17.) Plaintiff asserts that Hinchliff told him he received the information “from the Internet.” (Compl.. at 17.) Plaintiff contends that this “means that the [DOC] is changing this false information and posting it online,” violating his constitutional rights. (Compl. at 17-18.) The Complaint does not contain a copy of the 2011 fact sheet. (See Compl. at 7-8, 17-18; Exs. at 10, 26.)

I. Columbia Heights: July 2013

At some point in 2013, Plaintiff moved to Hilltop, Minnesota. (Exs. at 59-60.) On or about July 15, 2013, Scott Nadeau, the Chief of Police for the Columbia Heights Police Department, sent out a letter to residents notifying them of a community meeting regarding Plaintiff. (Exs. at 59.) The letter included a fact sheet. (Exs. at 60.) Among other things, the fact sheet included a section listing the - applicable “Registration statute(s)” as “617.23, 617.24 & 609.3451.” (Exs. at 60.) The fact sheet also stated-that-Plaintiff “has a history of sexual conduct and contact with primarily minor victims (female and male, age 13-14). Contact has included fondling. Conduct has included indecent exposure and showing pornography to victims. Offender was known to victims.” (Exs. at 60.)

Plaintiff asserts that he has “only the one conviction, 617.2