Petition for Writ of Certiorari — Shawn Canada, Petitioner v. Olmsted County Community Corrections, All Staff Members, et al.

Supreme Court briefSep 3, 2022

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 22-2104

Shawn Canada

Appellant

v.

Olmsted County Community Corrections, All Staff Members, et al.

Appellees

Appeal from U.S. District Court for the District of Minnesota

(0:21-cv-02120-NEB)

ORDER

The motion for appointment of counsel is denied. The petition for rehearing by the panel

is denied. Appellant’s motion filed August 24, 2022 is also denied.

September 01, 2022

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

Appellate Case: 22-2104

Page: 1

Date Filed: 09/01/2022 Entry ID: 5193976

United States Court of Appeals

For The Eighth Circuit

Thomas F. Eagleton U.S. Courthouse

111 South 10th Street, Room 24.329

St. Louis, Missouri 63102

VOICE (314) 244-2400

FAX (314) 244-2780

www.ca8.uscourts.gov

Michael E. Cans

Clerk of Court

July 27, 2022

Mr. Shawn Canada

MINNESOTA DEPARTMENT OF CORRECTIONS

233817

7600 525th Street

Rush City, MN 55069-0000

RE: 22-2104 Shawn Canada v. Olmsted Co. Comm. Corrections, et al

Dear Mr. Canada:

Enclosed is a copy of the dispositive order in the referenced appeal. Please note that

FRAP 40 of the Federal Rules of Appellate Procedure requires any petition for rehearing to be

filed within 14 days after entry ofjudgment. Counsel-filed petitions must be filed electronically

in CM/ECF. Paper copies are not required. This court strictly enforces the 14 day period. No

grace period for mailing is granted for pro-se-filed petitions. A petition for rehearing or a

motion for an extension of time must be filed with the Clerk’s office within the 14 day period.

Michael E. Gans

Clerk of Court

NDG

Enclosure(s)

cc:

Ms. Kate M. Fogarty

District Court/Agency Case Number(s): 0:21-cv-02120-NEB

Appellate Case: 22-2104

Page: 1

Date Filed: 07/27/2022 Entry ID: 5181250

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 22-2104

Shawn Canada

Plaintiff - Appellant

v.

Olmsted County Community Corrections, All Staff Members; Commissioner of Dept, of

Corrections; Hearing & Release Unit Staff; Paul Schnell; Alex Bunger; Robyn Wood; Sarah

Sommer; Mary Eichten; Mathias Antony; Travis Gransee; Doug Nelson; Tara Rathmann;

Andrew Karlsen; Kristen Lang; Chad Mitsch; Scott Roffers; William McDonald; Michael

Rogosheske

Defendants - Appellees

Appeal from U.S. District Court for the District of Minnesota

(0:21 -cv-02120-NEB)

JUDGMENT

Before LOKEN, COLLOTON, and GRASZ, Circuit Judges.

This court has reviewed the original file of the United States District Court. It is ordered

by the court that the judgment of the district court is summarily affirmed. See Eighth Circuit

Rule 47A(a).

Appellant's request to proceed on appeal in forma pauperis is denied as moot. The full

$505 appellate and docketing fees are assessed against the appellant. The court remands the

collection of those fees to the district court.

July 27, 2022

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

Appellate Case: 22-2104

Page: 1

Date Filed: 07/27/2022 Entry ID: 5181250

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Case No. 21-CV-2120 (NEB/DTS)

SHAWN CANADA,

Plaintiff,

ORDER ACCEPTING REPORT AND

RECOMMENDATION

v.

OLMSTED COUNTY COMMUNITY OF

CORRECTIONS, et al.,

Defendants.

This matter is before the Court on plaintiff Shawn Canada's timely objections to

the Report and Recommendation of United States Magistrate Judge David T. Schultz.

(ECF No. 14 ("Obj.").) Judge Schultz recommends dismissing Canada's Complaint for

failure to state a claim under 28 U.S.C. Section 1915A. (ECF No. 13 ("R&R").)1 For the

reasons that follow, the Court accepts the R&R and dismisses the’ Complaint.

BACKGROUND

Canada's Complaint. As noted in the R&R, Canada's Complaint contains little by

way of factual allegations. (ECF No. 1 ("Compl."); R&R at 2.) Instead, the Complaint lists

a string of legal theories for which Canada provides no factual support: fraud,

racketeering, tampering with judges and witnesses under 18 U.S.C. Section 1512,

Judge Schultz also ruled on a motion to add defendants and a motion to appoint counsel

(ECF Nos. 6, 8; R&R at 8.) There has been no appeal of the ruling on those motions and

so this Court will not address them.

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retaliation under 18 U.S.C. Section 1513, a pattern of racketeering under 18 U.S.C. Section

1961, invasion of privacy under 18 U.S.C. Section 1962, the "invasion of privacy act," and

the Civil Rights Act, 42 U.S.C. Section 1985. (Compl. at 6-7.) And it lists several

defendants, all with addresses at the Olmsted County Government Center or the

Minnesota Department of Corrections ("DOC").2 (Id. at 1-5.) Canada attaches several

documents to the Complaint, including a "Conditions of Release" document, which lists

special conditions the state required when he was released from the state corrections

facility. (ECF No. 1-1.) Nothing in this document supports Canada's claims. Also attached

is a civil cover sheet citing 42 U.S.C. Section 1982 of the Civil Rights Act, the Freedom of

Information Act, "employment" civil rights, fraud as a civil tort, and a "general" habeas

corpus petition. (ECF No. 1-2.) This document similarly contains no factual allegations.

Affidavits. His next two filings, both labeled as affidavits, state that Canada accuses

the defendants of various statutory violations and requests the release of his records to

himself. (ECF Nos. 3,4.) Canada also seeks a remedy under 42 U.S.C. Section 1983, adding

to his claims under the Civil Rights Act. (ECF No. 4.) As with the Complaint, these filings

contain no factual allegations. (ECF Nos. 3, 4.)

2 Based on the addresses and the nature of Canada's claims, the Court assumes these

defendants are employees of Olmsted County Corrections or DOC. Canada later attached

a list with some of the Olmsted County defendant's business cards, which shows they are

employees of Dodge-Fillmore-Olmsted County Community Corrections. (ECF No. 19 at

1.)

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Habeas Petition. Canada next filed a petition seeking habeas corpus relief. (ECF

No. 5.) He states that he committed no crime and that he is imprisoned for a violation of

conditions of special supervision—failure to complete chemical treatment. (Id.

1, 3-4.)

And Canada argues that his ongoing detention violates his due process rights, his Fifth

and Eighth Amendment rights under the United States Constitution, and state law.

Amendments. Canada then requests to amend his Complaint3 to add defendants to

his claims under RICO, for obstruction of justice, for tampering with a witness, for

malicious prosecution, and for punishment before trial. (ECF No. 8.) His request for

amendment attaches a list of defendants and two state court speedy trial demands. (ECF

Nos. 8-1, 8-2.) He also requests a "motion for acquittal" and civil remedies. (ECF No. 8.)

He similarly requests to amend his Complaint to add members of MCF/Faribault as

defendants for his claim for "pattern of racketeering activity." (ECF No. 9.) Magistrate

Judge Schultz denied the motion to add defendants because the motion did not state a

claim for relief against them. (ECF No. 12 at 7.) That denial has not been appealed.

Canada's memorandum in support of these motions starts with a three-page list

of legal theories and contains an extensive factual statement covering events from

January 2010 to February 2021.4 (ECF No. 11 at 10^6.) While the factual statement about

3 The Court treats all of Canada's subsequent filings as motions to amend the complaint.

Ketchum v. City ofW. Memphis, 974 F.2d 81, 82 (8th Cir. 1992).

4 The Court accepts these factual allegations as true and draws all reasonable inferences

in Canada's favor. Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843,848 (8th Cir. 2014).

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events over the past decade is not attached to the Complaint, the Court will consider it in

reviewing the R&R. A summary of these events is as follows:

In 2010, Canada was convicted for criminal sexual conduct after accepting a plea

agreement. He maintains that he did so under duress, and that the plea hearing was held

after the speedy-trial deadline. (ECF No. 11 at 12-14.)

Canada was sentenced to 62 months imprisonment, though he expected to serve

two-thirds of that sentence and understood that one-third could be served on supervised

release if he received no disciplinary violations while in person. (Id.) He also understood

that he would receive 10 years of supervised release and that he had to register as a

predatory offender. (Id.) Although Canada alleges he knew about the 10-year term of

supervised release, he also alleges that state officials violated state rules of criminal

procedure and 18 U.S.C. Section 3563 by not including his term of supervised release

during court proceedings. (Id. at 16-17.)

Canada served his prison sentence at St. Cloud State prison. (Id. at 19.) He began

sex offender treatment and chemical dependency treatment, but completed neither. (Id.

at 19-20.) He was released in September 2013, which began a period of supervised release

that was to include sex offender treatment. (Id. at 22.) Canada asserts that the director of

the treatment center was harassing him, and that he got conflicting messages from parole

officers about where he could live and what the expectations were. (Id. at 23-24,32.) More

than once, he was returned to prison for violating supervised release, and then released

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to begin treatment again. (Id. at 22-23, 25, 27-28, 30-32.) According to Canada, the

conflicting messages on where he could live constituted a scam, hoax, racketeering,

conspiracy to commit a crime, [and] restraint of liberty." (Id. at 24.)

In 2018, Canada was charged with a new count of criminal sexual conduct. (Id. at

35-36.) He was returned to prison and alleges that he was kept in prison even after a state

judge placed him on conditional release. (Id. at 37.) This, he alleges, violates his liberty

interest. (Id.)

When he was set to be released, no beds where available at the treatment center.

(Id. at 38.) Then, according to Canada, the underlying charges were dismissed, yet

Canada was kept in prison because he did not have an address. (Id.) State officials

allegedly "did not even try to find him a place." (Id.) Canada was later released to a

different treatment center. He did not complete treatment and was arrested again. (Id. at

38-39.) Around this time, Canada's parole officer searched his phone without a warrant.

(Id. at 39-40.)

In 2020 and 2021, Canada returned to prison and was released to treatment several

times. (Id. at 45^6.) Canada alleges these actions were violations of his liberty. (Id.) In

addition, Canada alleges that his public defender committed fraud and obstruction by

not raising speedy trial violations, obstruction of justice, or any U.S. Constitutional claims

in his state court appeals. (Id. at 33.) And he alleges that prosecutors sent fraudulent

documents to Olmsted County judges in some of his cases. (Id. at 33-34.)

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December 1 Filing. On December 1, after the R&R was issued, Canada filed an

additional claim under the Minnesota Tort Claims Act, again alleging forgery of his

signature on several Bureau of Criminal Apprehension ("BCA") documents by

government employees. (ECF No. 17.) Attached to the motion are several documents on

which Canada alleges state officials forged his signature. (ECF No 17-1.) All the

documents are "Minnesota Predator Offender Change of Information" forms that ask for

"current vehicle information." (Id.) None list any vehicle information. (Id.) Canada does

not allege any damages resulting from this forgery. (ECF No. 17.) On February 9, Canada

supplemented his December 1 filing with another document—a DOC "Offender Kite

Form"—that he alleges an officer forged his signature on. (ECF Nos. 20, 20-1.) This

document is also blank. (ECF No. 20-1.)

January 21 Motions and Filings. On January 21, Canada filed two more motions.

(ECF No. 18 at 1-2, 5-7.) He filed a "Motion of All Defendants" which appears to be a

motion to add defendants,5 and a motion to report a crime and request a federal

5 This motion lists DOC Commissioner Paul Schnell, Olmsted County Community

Corrections All Staff, Damascus Way All Staff, including Dan Stehr and Dan Sepeda,

Twin Town Treatment Center, DOC All Staff, Rochester Police Station, Ramsey County

Police, Raleigh County Police, Olmsted County Detention Center, Ramsey County

Detention Center, the BCA of Minnesota, the Attorney General of Minnesota Keith

Ellison, the Raleigh County Detention Center, the Olmsted County Public Defenders

David Haugen and Laura Traub, Calvin Miller, Chris Messerich, Maria Alderink, and

Halie Rostberg at the DOC, Neal Jacobson of Stillwater Police Station, Attorney General

Michael Everson, Administrative Law Judge Barbara Case, MCF/Faribault Staff Mrs.

Paula Wageman, and Zumbro Valley Mental Health.

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investigation. (Id. at 1-3, 5.) He also filed a document which he calls a Complaint, which

contains no new factual allegations. (Id. at 4.) Canada attached several documents,

including a page listing the names and contact information for Dodge-Fillmore-Olmsted

County Community Corrections employees, and several DOC end-of-confinement

reviews. (ECF No. 19 at 1-6.) And he attached a memorandum on the Blakely Rule, state

and federal rules of criminal procedure, and the separation of powers. (Id. at 7-20.) In this

memorandum, Canada argues that the lack of a statutory maximum on the length of

special parole is unconstitutional and states that he needed to be informed of any

maximum possible penalty before the guilty plea.6 (Id. at 15.) He moves to have his

sentence set aside for this reason. (Id. at 16.) He also cites 12 Dunnell Minn. Digest

Criminal Law § 10.01" for the proposition that a plea agreement must be withdrawn if it

is breached by the prosecutor's failure to fulfill a promise. (Id. at 19.) On top of release

from prison, Canada seeks a restraining order against special conditions of release and a

criminal and civil trial. (ECF No. 18 at 6-7.)

The R&R recommends dismissing all of Canada's claims because his complaint

and supplemental pleadings lack the requisite detail for federal litigation. (R&R at 7.)

6 Canada states that this is the law but does not state that his parole was indefinite nor

that he was not informed of maximum possible penalties for his guilty plea. In fact, his

other filings make clear that the state court sentenced him to 10 years of supervised

release and suggest that he was informed that his confinement would be extended. (ECF

No. 14-1 at 32 (indicating term of supervised release); ECF No. 11 at 13 (stating that he

entered the guilty plea because his public defender told him he faced a long term of

confinement).)

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Canada objects to the R&R because: "1. Extortion & Embezzlement; 2. Claim of Civil

Actions Presented; 3. Habeas Corpus is a Civil Action." (ECF No. 14 at 2.) He attached a

document that includes: (1) further legal allegations listing the theories he is suing under;

(2) a "Motion to Present a Claim" asserting various legal theories; (3) several BCA

documents he alleges contain his forged signature; (4) state court demands for speedy

trial in two separate cases; (5) various DOC documents; and (6) a motion to enforce his

state court plea agreement. (ECF No. 14-1.)

In all of these documents, Canada appears to assert several claims: Canada's

claims for relief under criminal statutes described in his complaint,7 Civil Rights Act

claims under 42 U.S.C. Sections 1982,1983, and 1985, an allegation that the state violated

his right to a speedy trial, an allegation that his Fifth Amendment right to due process

was violated, tort claims for fraudulent misrepresentation against his parole officer,

prosecutors, and his public defender, claims for forgery against Olmstead County

7 Canada alleges witness tampering under 18 U.S.C. Section 1512, retaliation under 18

U.S.C. section 1513, racketeering under 18 U.SfC. Section 1961, prohibited activities under

18 U.S.C. Section 1962, (ECF Nos. 1, 3, 11 at 6), fraud, (ECF No. 5 at 3), destruction of

government property under 18 U.S.C. Section 1361, obstruction of justice under 18 U.S.C.

Sections 1506,1509,1510,1512,1513,1514,1514A, fraud, healthcare fraud, embezzlement,

conspiracy, entrapment, tampering with a judge, forgery, malicious prosecution,

excessive force, kidnapping, attempted murder, entrapment, conspiracy to interfere with

civil rights, and tampering with mail. (ECF No. 11 at 5-8.)

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Officials,8 a Freedom of Information Act claim, a request for release of his own records, a

claim under the "invasion of privacy act, "9 and his habeas claims alleging various

constitutional violations in the conditions of his current detention.

The Court considers these claims in parts. First, the Court considers the criminal

claims. Second, the federal civil claims, including the FOIA claim, the Civil Rights Act

claims, and the constitutional claims. Third, the motion to add defendants. Fourth, the

Court considers claims under state law, including torts and claims under state statutes.

ANALYSIS

I.

Legal Standard

Because Canada is a prisoner seeking to proceed in forma pauperis, the Court may

dismiss the case if he fails to state a claim on which relief may be granted. 28 U.S.C.

§§ 1915(e)(2)(B)(ii), 1915A(b)(l); see Goodroad v. Bloomberg, 129 F.3d 121 {8th Cir. 1997) (per

8 Canada also alleges several other tort claims, including false imprisonment, slander,

defamation, and malicious prosecution. (ECF No. 11 at 7, 9.)

9 There is no "invasion of privacy act." Invasion of privacy is a tort and a common law

claim. See Freeland v. Fin. Recovery Servs., Inc., 790 F. Supp. 2d 991, 995 (D. Minn. 2011)

(describing invasion of privacy tort). There is a "Privacy Act that governs the

maintenance, use, and dissemination of government records. See generally 5 U.S.C. § 552a;

(see also ECF No. 11 at 7 (citing "Privacy Act of 1974").) It requires that federal agencies

give public notice of the records they keep and to let citizens access those records on

request. 5 U.S.C. § 552a(e)(4). If an agency fails to respond to a request made under agency

procedures, that person can bring a civil action against the agency. Id. § 552a(g)(l).

Canada does not allege that he requested records from a federal agency in accordance

with that agency's procedures, so even if he seeks relief under the Privacy Act, he has not

stated a claim.

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curiam) (applying Fed. R. Civ. P. 12(b)(6) standard of review to dismissal under 28 U.S.C.

Section 1915(e)). The Court must "accept the well-pleaded allegations in the complaint as

true and draw all reasonable inferences in favor of the plaintiff. In addition to the

allegations in the amended complaint, we also may consider materials that are

necessarily embraced by the pleadings." Varga v. U.S. Bank Nat. Ass'n, 764 F.3d 833, 838

(8th Cir. 2014) (cleaned up, citations omitted). Additionally, "a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face. 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." Id. at 838-39 (cleaned up, citations omitted).

The Court treats Canada's additional motions as motions to amend his Complaint

and considers all factual allegations in subsequent filings. See Thornton v. Phillips Cnty.,

240 F.3d 728, 729 (8th Cir. 2001) (per curiam) (holding that the district court should have

treated objections to the R&R as a motion to amend).

The Court reviews the R&R de novo. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

II.

Crimes

Canada raises several claims that are crimes. As the R&R properly noted, Canada

may not initiate federal litigation for crimes; private citizens have no right to demand

investigation or prosecution of criminal matters. See, e.g., Kunzer v. MagiU, 667 F. Supp.

2d 1058, 1061 (D. Minn. 2009) ("[Pjrivate citizens generally have no standing to institute

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federal criminal proceedings.") (citing Jones v. Clinton, 206 F.3d 811, 812 (8th Cir. 2000)).

So, to the extent Canada seeks criminal prosecution under 18 U.S.C. Sections 1512,1513,

1961, and 1962, his claims must be dismissed.10 Similarly, Canada's motion to report a

crime, (ECF No. 18 at 5-6), is denied because plaintiffs have no right to demand an

investigation or prosecution; a motion in court is not a way to report a crime to law

enforcement.

III.

Civil Claims

Canada also raises several civil claims under federal law. As described below,

Canada does not allege facts to state a claim for relief under any of these claims.

A.

Freedom oflnformation Act and Release of Records.

Canada raises a claim under the Freedom of Information Act, (ECF No. 1-2), and

seeks release of his records from the BCA. (ECF No. 4.) FOIA applies only to records of

federal agencies and only gives this Court jurisdiction over requests for data from federal

agencies. 5 U.S.C. §§ 551(1), 552(a); see Mace v. EEOC, 37 F. Supp. 2d 1144, 1150 n.6 (E.D.

Mo. 1999) (finding that federal courts do "not have FOIA jurisdiction over a claim that a

state agency withheld records"). Canada seeks records from state agencies and

individuals employed by state agencies, so this Court lacks jurisdiction under FOIA. If

10 Moreover, though some crimes may have a corollary in tort law, such as theft and

conversion, none of these crimes have related civil causes of action, so the Court does not

consider whether Canada has stated a claim for a similar civil cause of action. See United

States v. May, 625 F.2d 186, 192 (8th Cir. 1980) (explaining similarities between tort and

criminal conversion).

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Canada seeks disclosure under state law, such a claim must be brought in state court,

under state law, and following state procedures. See generally Minn. Stat. § 13.01-90

(Minnesota Government Data Practices Act).

B.

Sections 1982 and 1985

Canada also raises claims under the Civil Rights Act sections 1982,1983, and 1985.

(Compl. at 6-7; ECF Nos. 1-2, 4.) Section 1982 gives all citizens the same right to hold

property and prohibits any "racially motivated refusal to sell or rent." 42 U.S.C. § 1982;

City of Memphis v. Greene, 451 U.S. 100,121 (1981). Canada does not allege that any of the

defendants discriminated against him when he sought housing, so he has not stated a

claim under Section 1982.

Section 1985 prohibits five kinds of conspiracy to violate civil rights. See Harrison

v. Springdale Water & Sewer Comm% 780 F.2d 1422, 1429 (8th Cir. 1986) (describing the

types of conspiracy). Three of those categories require involvement by a federal

institution or process, and Canada does not allege any involvement by federal actors, so

he has not stated a claim under those categories. Id. The other two categories require an

allegation that the plaintiff is a member of a protected class, which Canada has not

alleged. Id. So Canada's claim under Section 1985 must be dismissed because his factual

allegations do not support the claims.

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Section 1983

Section 1983 confers no rights; it allows a private citizen to recover if they are

harmed by a violation of rights conferred elsewhere. 42 U.S.C. § 1983; Albright v. Oliver,

510 U.S. 266,271 (1994). To bring a Section 1983 claim, Canada must allege a constitutional

right that was infringed. See Albright, 510 U.S. at 271 ("The first step in any such claim is

to identify the specific constitutional right allegedly infringed.") (citation omitted).

Section 1983 claims come in two varieties: individual-capacity claims and officialcapacity claims. Baker v. Chisom, 501 F.3d 920, 923 (8th Cir. 2007). Any claims against a

government entity itself must be official-capacity claims. See id. at 925 (explaining that the

real party in interest in an official-capacity suit is the governmental entity). So to the

extent that Canada's claim is brought against Olmsted County, the DOC, the police, or

other government entities,11 it is an official capacity claim.

Canada's claims against named individuals should be treated as official-capacity

claims because Canada does not specify that he seeks to sue them in their individual

capacity. See Johnson v. Outboard Marine Corp., 172 F.3d 531,535 (8th Cir. 1999) ("[I]n order

to sue a public official in his or her individual capacity, a plaintiff must expressly and

11 The Court assumes for its analysis that Damascus Way is a state actor, though Canada

does not allege it, because a private entity generally cannot violate a person's

constitutional rights. See, e.g., Brentwood Acad. v. Tenn. Secondary Sch. Ass'n, 531 U.S. 288,

295 (2001) (explaining that state action is subject to Fourteenth Amendment scrutiny, but

private action is only subject to the Fourteenth Amendment when "there is such a close

nexus between the State and the challenged action that seemingly private behavior may

be fairly treated as that of the State itself") (internal quotations and citation omitted).

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unambiguously state so in the pleadings, otherwise, it will be assumed that the defendant

is sued only in his or her official capacity."). Thus Canada only raises official capacity

Section 1983 claims.

Eleventh Amendment. Canada's Section 1983 claim against the DOC and the BCA

are barred by the Eleventh Amendment. See Upsher v. Roy, No. 19-CV-1805 (MJD/HB),

2020 WL 2527108, at *3 (D. Minn. Apr. 15, 2020) ("The DOC is considered a state agency

with Eleventh Amendment immunity."), report and recommendation adopted, 2020 WL

2526498 (D. Minn. May 18, 2020); Soto v. John Defendants 1-5, No. 13-CV-640 (DWF/SER),

2014 WL 1607615, at *1, *6-7 (D. Minn. Apr. 15, 2014) (finding that , the Eleventh

Amendment bars Section 1983 claims against the BCA), aff'd, Soto v. Minn. Bureau ofCrim.

Apprehension, 581 F. App’x 606 (8th Cir. 2014). Under the Eleventh Amendment, "the

Judicial power of the United States shall not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of the United States by Citizens of another

State." U.S. Const, amend. XI. Notwithstanding the phrase "another State," binding case

law establishes that "an unconsenting State is immune from suits brought in federal

courts by her own citizens as well as by citizens of another state." Fryberger v. Univ. of

Ark., 889 F.3d 471, 473 (8th Cir. 2018) (citing Port Auth. Trans-Hudson Corp. v. Feeney, 495

U.S. 299, 304 (1990)). Eleventh Amendment immunity also applies to claims against state

agencies. See, e.g., Monroe v. Ark. St. Univ., 495 F.3d 591, 594 (8th Cir. 2007).

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The issue is jurisdictional: under the Eleventh Amendment, federal courts

generally lack subject-matter jurisdiction over claims against an unconsenting state. See

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000) (citing cases). Minnesota has not waived

its immunity from suit in federal court for Section 1983 damages claims, and Congress

did not abrogate that immunity by enacting Section 1983. See, e.g.. Quern v. Jordan, 440

U.S. 332, 345 (1979). This Court lacks jurisdiction over Canada's official-capacity Section

1983 claims against Olmsted County and the State.

Olmsted County and Damascus Way. Canada's Section 1983 claim against Olmsted

County and Damascus Way must be dismissed because he has not stated a claim for

relief. A governmental entity's liability under Section 1983 can result from (1) an official

municipal policy/ (2) an unofficial 'custom/ or (3) a deliberately indifferent failure to

train or supervise." Jackson v. Stair, 944 F.3d 704, 709 (8th Cir. 2019) (citing Corwin v. City

oflndep., 829 F.3d 695, 699 (8th Cir. 2016)). None of Canada's filings allege any policy,

custom, or failure to train or supervise, so Canada fails to state any official-capacity claim

against Olmsted County or Damascus Way.

Because Canada's Section 1983 claim fails, his other constitutional claims fail too.

Individuals generally cannot bring claims against state and municipal employees directly

under the United States Constitution; instead, the claim must be under Section 1983.

Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000) (noting that Section 1983 "provides a

means to vindicate rights conferred by the Constitution or laws of the United States"). So

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Canada's claims alleging violations of his due process rights and violations of his right to

a speedy trial must be dismissed.

IV.

Motion to Add Defendants and Claims

Canada moved to add numerous defendants. (ECF No. 18 at 1-3.) His factual

allegations mention only two of these defendants: Damascus Way and the BCA.12 (See

generally ECF No.'ll.) As discussed above, Canada has not stated a claim against either

defendant, so his motion to add Damascus Way and the BCA as defendants is denied

because it is futile. See Y/illiams v. Little Rock bAun. Water Works, 21 F.3d 218, 225 (8th Cir.

1994) ("Good reason to deny leave to amend exists if amendment would be futile.").

Similarly, Canada moves to add a claims of forgery, (ECF Nos. 17, 20), but because he

cannot allege crimes the motion is also futile, so it is denied. Id.

V.

State Law Claims

This Court may have subject-matter jurisdiction over claims in one of three ways.

First, federal courts may consider questions arising under federal law. 28 U.S.C. § 1331

(giving federal courts jurisdiction over "all civil actions arising under the Constitution,

laws, or treaties of the United States."). Second, the parties may be diverse-meaning

they are citizens of different states-and the amount in controversy may be more than

$75,000. 28 U.S.C. § 1332(a)(1) ("The district courts shall have original jurisdiction of all

12 The motion to add defendants is denied as to any other defendants, because it would

be futile to add defendants without factual allegations against them.

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civil actions where the matter in controversy exceeds the sum or value of $75,000 .. . and

is between . . . citizens of different States."). Or, third, the Court may exercise

supplemental jurisdiction over state law claims if it has subject-matter jurisdiction over

related federal law claims. 28 U.S.C. § 1367(a) ("[I]n any civil action of which the district

courts have original jurisdiction, the district courts shall have supplemental jurisdiction

over all other claims that are so related to claims in the action within such original

jurisdiction that they form part of the same case or controversy.")

This Court has disposed of all of Canada's federal law claims and there is no

diversity among parties, so the Court lacks jurisdiction to hear Canada's state-law claims

and declines to exercise supplemental jurisdiction. The Court thus dismisses Canada's

state law claims without prejudice.13

VI.

Habeas Petition

Canada also moved to add a habeas petition to his suit. (ECF No. 5.) Although not

entirely clear, he appears to allege that he is being unlawfully imprisoned after being

found in violation of his release conditions and for failing to complete chemical treatment,

for which he will not be released until he completes his 18-month sentence or chemical

treatment. (Id. at 2.)

13 Because this Court finds Canada has not stated a claim, his request for a restraining

order is also denied. See Fed. R. Civ. P. 65 (requiring specific facts establishing irreparable

harm to issue a temporary restraining order).

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The R&R recommends denying this motion because a habeas petition may not be

joined with a civil claim. (R&R at 7 (collecting cases).) The Third Circuit has adopted a

rule that civil claims and habeas petitions should generally be brought in separate actions.

See Burnam v. Marberry, 313 F. App’x 455, 456 n.2 (3d Cir. 2009) (noting that the district

court "should not have combined the habeas action and the claims under the Privacy Act

and APA into a single case. A better approach would have been to dismiss the habeas

petition without prejudice and to focus on the alleged statutory violations .. .") (citations

omitted). Some courts in this district also apply this rule. See Smith v. Pikes, No. 20-CV1294 (JRT/TNL), 2020 WL 6947848, at *1 (D. Minn. Oct. 12, 2020) (noting incompatible

rules for discovery, service of process, and filing fees for civil complaints and habeas

petitions), report & recommendation adopted, 2020 WL 6947433 (D. Minn. Nov. 25, 2020);

Malcom v. Starr, No. 20-CV-2503 (MJD/LIB), 2021 WL 931213, at *2 (D. Minn.

Mar. 11, 2021) (citing Smith). But the Second Circuit declined to adopt such a rule. See

Thompson v. Choinski, 525 F.3d 205, 210 (2d Cir. 2008) (stating that it was unaware of "a

basis ... for the view that a petitioner may not seek relief under both a habeas statute and

§ 1983 in a single pleading"). This Court will join others in this district and require that

Canada's habeas claims be brought in a separate proceeding because of the differences

between a habeas petition and a civil complaint. Smith, 2020 WL 6947848, at *1. The Court

thus dismisses Canada's habeas petition without prejudice.

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Based on the foregoing, and on all the files, records, and proceedings herein, IT IS

HEREBY ORDERED THAT:

1.

Canada's objection (ECF No. 14) is OVERRULED;

2.

The Report and Recommendation (ECF No. 13) is ACCEPTED;

3.

The Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE;

4.

The motions (ECF No. 18) are DENIED:

a. The motion to report a crime (ECF No. 18 at 5) is DENIED;

b. The motion to add defendants (ECF No. 18) is DENIED;

c. The request for a restraining order against special conditions (ECF

No. 18 at 6-7) is DENIED;

5.

The motion to add a claim of forgery (ECF No. 17) is DENIED;

6.

The motion to file a complaint (ECF No. 20) is DENIED;

7.

The application to proceed in forma pauperis (ECF No. 2) is DENIED AS

MOOT;

8.

The petition for writ of grant habeas corpus (ECF No. 5) is DISMISSED

WITHOUT PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

BY THE COURT:

Dated: March 1, 2022

s/Nancv E. Brasel________

Nancy E. Brasel

United States District Judge

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1

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Page 1 of

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Case No. 21-CV-2120 (NEB/DTS)

SHAWN CANADA,

Plaintiff,

ORDER

v.

OLMSTED COUNTY COMMUNITY OF

CORRECTIONS, All Staff Members, ET

AL.,

Defendants.

Plaintiff Shawn Canada must pay the unpaid balance ($505.00) of the appellate

filing fee for this action in the manner prescribed by 28 U.S.C. § 1915(b)(2). The Clerk of

Court is directed to provide notice of this requirement to the authorities at the

institution where Canada is confined.

SO ORDERED.

Dated: July 28, 2022

BY THE COURT:

s/Nancv E. Brasel

Nancy E. Brasel

United States District Court

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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