Rivera v. Flesvig et al

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Alveto Rivera,
Plaintiff,
v.
Evelyn Flesvig, Charles S. Fai, Philip W.
Olson, and Anabelle Ochoa, in their
individual capacities and in their official
capacities,
Defendants.
Civ. No. 25-4517 (JWB/SGE)
ORDER
United States Magistrate Judge Shannon G. Elkins issued a Report and
Recommendation (“R&R”) on December 19, 2025, recommending dismissal of
Plaintiff’s Complaint without prejudice and denial of his application to proceed in forma
pauperis as moot. (Doc. No. 5.) Plaintiff filed objections to the R&R on January 5, 2026.
(Doc. No. 6.)
When a party objects to an R&R, those portions to which specific objections are
made are reviewed de novo. 28 U.S.C. § 636(b)(1); D. Minn. LR 72.2(b)(3). The Court
may accept, reject, or modify the recommended disposition. Although Plaintiff proceeds
pro se and his objections are construed liberally, they must still identify a legal or factual
basis to disturb the recommendation.
This Court has conducted a de novo review of the record, including the Complaint,
the R&R, and Plaintiff’s objections. Even affording Plaintiff the benefit of liberal
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construction, the objections do not alter the analysis. The Complaint fails, as a matter of
law, to state a viable federal claim.
First, Plaintiff’s claims for monetary relief against Defendants in their official
capacities are barred. The Defendants are employees of Direct Care and Treatment
(“DCT”), a state agency. Claims against them in their official capacities are therefore
claims against the State of Minnesota. The State has not waived its immunity for § 1983
damages actions, and § 1983 does not abrogate that immunity. See Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 66–67 (1989). Because there has been no waiver, Plaintiff’s
claims for monetary damages against Defendants in their official capacities are barred by
the Eleventh Amendment.
Second, Plaintiff fails to state a procedural due process claim because he has not
alleged the deprivation of a protected liberty interest. Plaintiff’s theory centers on his
transfer within the Minnesota Sex Offender Program from Moose Lake to St. Peter and
the alleged loss of treatment progress. Generally, there is no liberty interest that attaches
to a person’s place of confinement when they have not pled a drastic departure from the
ordinary living conditions at a secure facility. See Flores v. Moser, No. 16-cv-1860
(ADM/KMM), 2019 WL 2016789, at *7 (D. Minn. Jan. 7, 2019).
Here, the Complaint alleges only a transfer between facilities within MSOP and a
reset in treatment progression. It does not allege materially different conditions of
confinement, additional physical restraints, or any comparable hardship. Nor does it
plausibly allege that Plaintiff had a right to be placed at a particular MSOP facility or
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treatment phase. Without a cognizable liberty interest, no procedural due process claim is
proper..
Third, Plaintiff’s substantive due process claim fails. Substantive due process is
reserved for conduct that is so egregious as to “shock the conscience.” Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998). Plaintiff alleges that Defendants
misled him about the purpose of a neuropsychological test and used the results in
connection with a transfer decision. Even accepting those allegations as true, they
describe, at most, misrepresentation or poor professional judgment in a treatment
setting—not the type of brutal, arbitrary, or oppressive conduct required to meet the
constitutional threshold. The alleged conduct does not approach the level necessary to
state a substantive due process violation.
Finally, neither the Fifth nor Sixth Amendment apply to Plaintiff’s alleged
circumstances. Plaintiff’s reliance on the Fifth Amendment is misplaced because that
amendment applies to federal actors, not state officials. Any due process claim against
these Defendants arises, if at all, under the Fourteenth Amendment. Likewise, the Sixth
Amendment applies only to criminal prosecutions and has no application to Plaintiff’s
civil commitment or treatment-related claims.
Because all federal claims will be dismissed, this Court declines to exercise
supplemental jurisdiction over the state-law claims. See Wilson v. Miller, 821 F.3d 963,
970–71 (8th Cir. 2016).
After de novo review, this Court agrees with the Magistrate Judge’s ultimate
conclusions, though based on its own independent analysis. The R&R is accepted.
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Accordingly, IT IS HEREBY ORDERED that:
1. 	Plaintiff’s Objections to the Report and Recommendation (Doc. No. 6) are
OVERRULED;
2. 	The Report and Recommendation (Doc. No. 5) is ACCEPTED;
3. 	Plaintiff’s Complaint (Doc. No. 1) is DISMISSED without prejudice; and
4. 	Plaintiff’s application to proceed in forma pauperis (Doc. No. 2) is
DENIED as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Date: April 8, 2026 	s/ Jerry W. Blackwell
JERRY W. BLACKWELL
United States District Judge
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