McClendon v. Roy

William A. McClendon, Appellant, v. Thomas Roy, et al., Respondents.

A19-0528

STATE OF MINNESOTA IN COURT OF APPEALS

November 18, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Connolly, Judge

Washington County District Court

File No. 82-CV-18-4284

William A. McClendon, Stillwater, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Liz Kramer, Solicitor General, St. Paul, Minnesota (for respondents)

Considered and decided by Worke, Presiding Judge; Connolly, Judge; and Klaphake, Judge.^*

UNPUBLISHED OPINION

CONNOLLY, Judge

Pro se appellant challenges the district court's dismissal of his complaint for failure to state a claim upon which relief can be granted. He argues that the district court erred in (1) determining that sovereign immunity bars his strict liability claims under Minnesota's dog-bite statute, (2) determining that qualified immunity bars his section 1983 claim, (3) failing to consider his motion to amend the complaint, and (4) dismissing his complaint for failure to state a claim upon which relief can be granted. Because the district court did not err, we affirm.

FACTS

This case arises from two altercations that occurred while pro se appellant William McClendon was an inmate at Minnesota Correctional Facility—Stillwater. Appellant's complaint references surveillance videos that captured both altercations and that "substantiate [appellant's] allegations." Respondents submitted these videos to the district court, which considered them when deciding respondents' motion to dismiss.¹

The first incident took place on June 5, 2017. Appellant punched another inmate, knocking him to the floor. Appellant and a third inmate began to punch and kick the second inmate repeatedly. Corrections officers responded to the disturbance. The first officer who arrived on the scene sprayed chemical irritant toward appellant and the third inmate, butthey continued to attack the second inmate. Several more corrections officers arrived, including Officer Brian McCarthy. McCarthy was a designated canine handler, and he brought a canine to the scene and directed its actions. Upon the arrival of the additional officers, the third inmate ceased his attacks and lay on the floor. Appellant, however, continued to punch the second inmate. An officer then grabbed appellant and pulled him away from the second inmate. Appellant braced himself against an open cell door and stepped forward while the officer tried to secure him. McCarthy released the canine, which bit appellant on the leg. Appellant sustained injuries to his right thigh as a result.

The second altercation occurred three days later, on June 8, 2017. Officer Ronald Braithwaite was escorting appellant to the Health Services Department to receive treatment for his dog-bite injuries. As Braithwaite walked in front of appellant, another inmate struck appellant, knocked him to the floor, and punched him repeatedly. Braithwaite turned around and moved toward the inmates while using his radio. He maneuvered behind the assailant for a couple seconds and then pulled him off appellant. Appellant sustained injuries to his head and face.

Appellant commenced this action in September 2018. For his injuries from the dog bite, he named as defendants McCarthy, Minnesota Department of Corrections Commissioner Thomas Roy, Warden Eddie Miles, and Captain Byron Matthews. He alleged that McCarthy "either negligently and/or maliciously" released the canine when appellant already had disengaged from the altercation and was not resisting the corrections officers. The claims against McCarthy were strict liability under Minnesota's dog-bite statute, Minn. Stat. § 347.22 (2018); claims under 42 U.S.C. § 1983 (2012) for violationsof the Fourth and Eighth Amendments of the United States Constitution and articles V and X of the Minnesota Constitution; and state tort claims for intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, assault, and battery. Appellant alleged that Roy, Miles, and Matthews were vicariously liable for McCarthy's actions because they were the "legal owner, or keeper, or harborer's [sic] of the Canine."

For his injuries from the other inmate, appellant brought a negligence claim against Braithwaite. He alleged that Braithwaite "either negligently or maliciously" allowed the other inmate to assault him repeatedly and failed to intervene. In doing so, Braithwaite allegedly breached his duty to protect appellant and to ensure appellant's safety.

Respondents filed a motion to dismiss the action for failure to state a claim upon which relief can be granted. Appellant withdrew his section 1983 claims against Roy, Miles, and Matthews that were based on vicarious liability. He also withdrew his section 1983 claims against McCarthy for violations of the Fourth Amendment of the United States Constitution and for violations of the Minnesota Constitution.

The district court scheduled a hearing on respondents' motion to dismiss for January 18, 2019. On January 9, 2019, appellant filed a notice of motion and motion to amend the complaint. In this notice, appellant declared that he would move for an order permitting him to amend his complaint at the January 18 hearing or soon thereafter. He indicated that he would amend the caption in the complaint to include that all defendants were being "sued in their individual capacities." Appellant took no further steps after filing this motion, and he did not appear at the hearing on January 18. The district court never considered the motion to amend.

The district court granted respondents' motion to dismiss. It determined that sovereign immunity barred the claim under the dog-bite statute, as a suit against officers of the Department of Corrections acting in their official capacities is considered a suit against the state itself. It also dismissed the section 1983 claim for violation of the Eighth Amendment as barred by sovereign immunity and qualified immunity. The court dismissed most of the state tort claims for insufficient allegations in the complaint. For intentional infliction of emotional distress, appellant made conclusory allegations and did not allege that he suffered severe emotional distress. For negligent infliction of emotional distress, appellant failed to allege any physical manifestations of emotional distress. In respect to the negligence claim against Braithwaite, the complaint did not allege facts that gave rise to a duty for Braithwaite to protect appellant. Finally, the court dismissed the remaining state tort claims as barred by official immunity. This appeal follows.

DECISION

On appeal from the dismissal of a complaint for failure to state a claim upon which relief can be granted under Minnesota Rule of Civil Procedure 12.02(e), we review de novo whether the complaint "sets forth a legally sufficient claim for relief." Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 606 (Minn. 2014). "We accept the facts alleged in the complaint as true and construe all reasonable inferences in favor of the nonmoving party." Id. "A claim is sufficient against a motion to dismiss for failure to state a claim if it is possible on any evidence which might be produced, consistent with the pleader's theory, to grant the relief demanded." Id. at 603. We are not, however, bound by legal conclusions in the complaint. Hebert v. City of Fifty Lakes, 744 N.W.2d 226, 235 (Minn. 2008).

I.

Appellant argues that sovereign immunity does not bar his strict liability claims under Minnesota's dog-bite statute. The statute creates a cause of action against the owner of a dog who attacks or injures a person without provocation. Minn. Stat. § 347.22. It defines "owner" as including "any person harboring or keeping a dog." Id. The district court dismissed appellant's claims on the grounds that sovereign immunity bars a statutory claim against state officials acting within the scope of their employment. We review the applicability of immunity de novo. Kariniemi v. City of Rockford, 882 N.W.2d 593, 599 (Minn. 2016).

Sovereign immunity "precludes litigation against the state unless the state has consented to suit." Nichols v. State, 858 N.W.2d 773, 775 (Minn. 2015). Sovereign immunity may apply even though the state itself is not the named defendant. It also bars claims against departments of the state. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 908 (1984); Khalifa v. State, 397 N.W.2d 383, 389 (Minn. App. 1986). Suits against officers of the departments acting in their official capacities are considered suits against the department itself. Khalifa, 397 N.W.2d at 389-90. In summary, a claim against state officials carrying out their official responsibilities is a claim against the state that is protected by sovereign immunity. Pennhurst, 465 U.S. at 121, 104 S. Ct. at 919. Respondents are all state employees working for the Department of Corrections. Appellant's action is against respondents in their official capacities. The claims against Roy, Miles, and Matthews are all based on their positions with the department. McCarthy released the canine while he was acting within his duties as acorrections officer and canine handler. Accordingly, unless the state has consented to suit for claims under the dog-bite statute, sovereign immunity bars those claims.

The Minnesota Supreme Court has abolished sovereign immunity for common-law tort claims, but the immunity still exists for claims created by statute. Nichols, 858 N.W.2d at 775 (citing Nieting v. Blondell, 235 N.W.2d 597, 603 (Minn. 1975)). The legislature, nevertheless, can waive the state's sovereign immunity for statutory claims. Id. Minn. Stat. § 645.27 (2018) provides a framework for determining whether a statute waives the state's sovereign immunity from liability for a statutory claim. Id. at 775-76. There are two ways for a statute to waive sovereign...