McGuire v. Walz et al

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DAVID J. McGUIRE, and all others
similarly situated,
Plaintiff,
v.
TIM WALZ, Governor; TERRY KNIESEL;
COREY VARGASON; TAMMY
SHELDON; NICHOLE KEILTY; JANA
BRISTER-KORBY; ROSS FREEMAN;
SHELBY HALVORSON; JOHN DOE
GREEN; JACK DOE; DEAN RINGO;
REBECCA DOE; LUKE CHALBERG;
KRISTY GILPIN; TANYA EFFLER;
DOUG DOE; DEANDRA
CHRISTIANSON; KELLY McKNIGHT;
JAMIE L A GRAVES; KATHLEEN
GLASSMAN; BRITTANY KING; BRUCE
BEAMAN; MELISSA DANIELS;
SHIREEN GANDHI; MARSHALL
SMITH; and SAMANTHA DOE, in their
individual and official capacities as
employees of the Department of Human
Services,
Defendants.
Case No. 25-CV-3835 (ECT/JFD)
REPORT AND RECOMMENDATION
Plaintiff David J. McGuire, a client of the Minnesota Sex Offender Treatment
Program (MSOP) in Moose Lake, Minnesota, has filed a federal lawsuit challenging
several aspects of his confinement. (See Comp., Dkt. No. 1.) Mr. McGuire did not pay the
filing fee associated with this matter. Instead, he has requested to proceed in forma
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pauperis (“IFP”). (Dkt. No. 2.) Accordingly, the Court must first decide Mr. McGuire’s
IFP application before taking any other action in this case. See 28 U.S.C. § 1915(e)(2)(B).
I. 	LEGAL STANDARD
Upon review of Mr. McGuire’s IFP application, the Court finds that Mr. McGuire
qualifies financially for IFP status. But this does not end the Court’s analysis. In accordance
with 28 U.S.C. § 1915(e)(2)(B)(ii), an IFP application will be denied, and an action will be
dismissed, when an IFP applicant has filed a complaint that fails to state a claim on which
relief may be granted. See Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996) (per
curiam).
In reviewing whether a complaint (or portion thereof) states a claim for which relief
may be granted, this Court must accept the complaint’s factual allegations as true and draw
all reasonable inferences in the plaintiff’s favor. Varga v. U.S. Nat’l Bank Ass’n, 764 F.3d
833, 838 (8th Cir. 2014). The factual allegations need not be detailed, but they must be
sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). The complaint must “state a claim to relief that is plausible on
its face.” Id. at 570. Pro se complaints are to be construed liberally, but they must still
allege enough facts to support the claims advanced. Stone v. Harry, 364 F.3d 912, 914 (8th
Cir. 2004) (citing cases).
For the reasons described below, this Court recommends that Mr. McGuire’s
complaint be dismissed without prejudice—the federal claims for failure to state a plausible
claim for relief, see 28 U.S.C. § 1915(e)(2)(B)(ii), and the state law causes of action for
lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(h)(3). It is therefore further
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recommended that Mr. McGuire’s IFP application, (Dkt. No. 2), and Motion to Appoint
Counsel, (Dkt. No. 5), be denied as moot.
II. 	BACKGROUND
Mr. McGuire’s 133 paragraph complaint addresses a wide range of conduct
covering an unspecified period of time. At various points, the complaint is focused,
describing specific instances of alleged misconduct with some factual detail, but it
invariably returns to a laundry list of generalized grievances against MSOP officials, up to
and including the Minnesota State Governor, Tim Walz, and the Commissioner of the
Department of Human Services, Shireen Gandhi.
Namely, Mr. McGuire alleges that in September-October 2024, MSOP officials,
specifically Nurse Practitioner Tanya Effler and other MSOP medical staff members,
including Kristy Gilpin, Doug “Doe,” Sonya Riley, Destiny Anderson, Samantha “Doe,”
and Deandra Christianson, failed to properly treat his hernia and bowel obstruction and
interfered with the treatment recommendations of an outside physician. (See Dkt. No. 1,
Compl. ¶¶ 19-39.) But he then asserts that he has never received constitutionally adequate
medical care for any of his medical conditions, (id. ¶¶ 41-51, 114-125.)
He also claims, for example, that MSOP retaliated against all MSOP clients by
imposing 	a 	policy 	of 	“controlled 	movement” 	after 	a 	former 	MSOP 	staff 	member
participated in a news story reporting that MSOP purposefully lowered clients’ treatment
scores. (Id. ¶¶ 58-65.) And he asserts that MSOP staff members participate in an online
forum that disparages and makes threatening statements towards MSOP clients. (Id. ¶¶ 66-
80.) He says that when he reported that Shelby Halvorson is a member of this group to her
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supervisors, she then searched his room after Jana Brister-Korby reported that it smelled
like marijuana and fabricated evidence by claiming that she had recovered a pen containing
ecstasy residue. (Id.) He describes the search as retaliatory. (Id. ¶ 72.) But he then goes on
to seemingly describe every MSOP policy and every action MSOP staff have taken against
him as retaliatory, including the alleged failure to provide him with constitutionally
adequate medical care and his purportedly unconstitutional conditions of confinement. (Id.
¶¶ 86-89; 91-98.)
Further, Mr. McGuire claims MSOP officials failed to follow their own policies
during the search of his room, that he was deprived of due process during the disciplinary
hearing following that search, and that the punishment he received following the hearing
was unnecessarily punitive. (See id. ¶¶ 73-77; 81-85.) But he also generally claims that he
(along with all other MSOP clients) have been subject to unconstitutionally punitive
conditions of confinement, describing, for example, that every defendant requires him to
be locked down in his room “several times a day,” (id. ¶¶ 96-97), without a hearing, (id. ¶¶
99-101), that every defendant has denied him a healthy diet of nutritious meals, (id. ¶¶ 102-
108), and that every defendant has denied him recreational activities and exercise, (id.
¶¶ 109-113.)
Mr. McGuire asserts that these allegations give rise to seven causes of action: (1)
failure to provide adequate medical treatment; (2) denial of the right to be free from
retaliation; (3) denial of due process in violation of 42 U.S.C. § 1983; (4) conspiracy to
deprive due process rights in violation of 42 U.S.C. § 1983; (5) intentional infliction of
emotional distress; (6) negligent infliction of emotional distress; and (7) violation of the
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Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131—12134, et seq., and the
Rehabilitation Act (“RA”), 29 U.S.C. § 701 et seq. Mr. McGuire’s allegations with respect
to each claim are discussed in more detail below.
III. 	ANALYSIS
This Court starts with Mr. McGuire’s federal causes of action (claims one through
four and seven).
A. 	42 U.S.C. § 1983
Claims one through four assert violations of Mr. McGuire’s constitutional rights
under the United States Constitution and 42 U.S.C. § 1983.1 Because the United States
Constitution does not, by itself, give rise to a direct cause of action, this Court construes
his claims arising under the United States Constitution as 42 U.S.C. § 1983 claims. See
Quality Refrigerated Services, Inc. v. City of Spencer, 908 F.Supp. 1471, 1487 n.9 (N.D.
Iowa 1995) (“There simply is no direct cause of action arising out of the Constitution itself
against municipal officials for alleged constitutional violations.”).
To state a claim under 42 U.S.C. § 1983, “a plaintiff must allege a violation of a
constitutional right committed by a person acting under color of state law.” Andrews v. City
of West Branch, Iowa, 454 F.3d 914, 918 (8th Cir. 2006). Mr. McGuire asserts four
violations of his constitutional rights: (1) failure to provide adequate medical treatment
(claim one); (2) denial of the right to be free from retaliation (claim two); (3) denial of
1 To the extent that Mr. McGuire asserts violations of the Constitution of the State of
Minnesota and the Minnesota Civil Commitment Act, Minn. Stat. § 253D et seq., for the
reasons described below, such claims arise under Minnesota law and therefore should be
dismissed for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
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constitutionally required due process (claim three); and (4) conspiracy to deprive him of
his rights under the Equal Protection Clause of the Fourteenth Amendment (claim four).
These claims should be dismissed because Mr. McGuire has failed to plead a plausible
constitutional violation.
1. 	Failure to Provide Medical Care (Claim One)
“Prison officials or their agents violate the eighth amendment if they commit ‘acts
or omissions sufficiently harmful to evidence deliberate indifference to [an inmate’s]
serious medical needs.” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Deliberate indifference includes both a
subjective and objective component: “The [plaintiff] must demonstrate (1) that [he]
suffered [from] objectively serious medical needs and (2) that the prison officials actually
knew of but deliberately disregarded those needs.” Id. (quoting Dulany v. Carnahan, 132
F.3d 1234, 1239 (8th Cir. 1997)). To show deliberate indifference, moreover, “[t]he
prisoner must show more than negligence, more even than gross negligence, and mere
disagreement with treatment decisions does not rise to the level of a constitutional
violation.” Id. (quoting Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)).
In other words, the plaintiff must prove that “officials knew about excessive risks to his
health but disregarded them, and that their unconstitutional actions in fact caused his
injuries.” Senty-Haugen v. Goodno, 462 F.3d 876, 890 (8th Cir. 2006) (internal citation
omitted). As a civil detainee, Mr. McGuire’s inadequate medical care claims arise under
the Due Process Clause of the Fourteenth Amendment, but such claims are nevertheless
subject to the Eighth Amendment “deliberate indifference” standard. See id. at 889.
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a. 	Hernia Treatment
Here, Mr. McGuire references several instances which, in his view, demonstrate that
he has received constitutionally inadequate medical care at MSOP. The most fleshed out
of these claims is his assertion that Defendants Luke Chalberg, Samantha “Doe,” and NP
Effler failed to properly treat his hernia in 2024. Assuming his hernia (or the related pain)
constitutes an objectively serious medical need, Mr. McGuire has failed to assert any facts
establishing that the defendants knew of the excessive risk the hernia posed to him but
failed to act on it. See Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (“The
failure to treat a medical condition does not constitute punishment within the meaning of
the Eighth Amendment unless prison officials knew that the condition created an excessive
risk to the inmate’s health and then failed to act on that knowledge.”) (quoting Long v. Nix,
86 F.3d 761, 765 (8th Cir. 1996)).
By contrast, Mr. McGuire alleges that Defendant Chalberg twice contacted medical
services for assistance when it was brought to his attention that Mr. McGuire was in pain,
(see Compl. ¶¶ 22 & 26), and both times medical responded to his room—he specifically
claims that Defendant Samantha Doe responded the second time, (id. ¶ 28)—and brought
him to health services for further evaluation before being transported to the hospital in
Moose Lake, Minnesota, for treatment. (Id. ¶¶28–30.) These allegations show that
Defendants Chalberg and Samantha Doe responded to his reports that he was in pain. To
the extent that Mr. McGuire claims that they should have done more to treat his condition,
he does not assert any facts describing what this additional treatment should have been or
why failure to provide that treatment amounts to deliberate indifference. See Jones v.
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Faulkner Cty., Ark., 131 F.4th 869, 875 (8th Cir. 2025) (“Even if, in hindsight, [the
defendant] could have done more, or done it faster, that alone does not amount to deliberate
indifference.”) 	(citation 	omitted). 	Accordingly, 	Mr. 	McGuire’s 	assertions 	against
Defendants Chalberg and Samantha Doe related to the treatment of his hernia in 2024
simply do not give rise to a plausible medical indifference claim.
The Court comes to the same conclusion with respect to NP Effler. While Mr.
McGuire plainly faults her for not doing more to treat his hernia following his September
2024, ultrasound, he has failed to show that NP Effler was aware of the risk of the hernia
to his health but failed to adequately treat it, particularly considering that when Mr.
McGuire was being treated at the hospital for a bowel obstruction, his medical team did
not treat his hernia at that time either, instead referring him to outpatient surgery for the
hernia repair. (Compl. ¶ 25.) While there was certainly a change of circumstances with
respect to his hernia when he returned to MSOP, this change in circumstances occurred
approximately one month after NP Effler reviewed his ultrasound results and concluded
that he did not require further intervention at that time. Put differently, Mr. McGuire asserts
no facts suggesting that NP Effler was aware of the risks the hernia posed to his health at
the time of his ultrasound in September 2024 but that she deliberately ignored those risks.
See Jones, 131 F.4th at 875 (citing Gregoire v. Class, 236 F.3d 413, 419 (8th Cir. 2000)
(explaining that if the defendant had known all the relevant information, “a quicker attempt
to [respond to the risk] may have been warranted,” but the court limits its review to
information known at the time)); see also Goodwin v. Hughes, 696 F.Supp.3d 723, 740 (D.
Neb. 2023) (“A prison doctor does not act with deliberate indifference when, in an exercise
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of his professional judgment, he concludes that an inmate will not be placed at risk by
foregoing 	a 	particular 	course 	of 	treatment, 	including 	surgery.”) 	(listing 	cases).
Accordingly, Mr. McGuire has failed to assert a plausible deliberate indifference claim
against NP Effler, Chalberg, and Samantha Doe related to the treatment for his hernia and
bowel obstruction in September and October 2024.
b. 	Additional Medical Indifference Claims
Mr. McGuire’s additional medical indifference claims contain less factual detail:
He claims that MSOP nursing staff “Kristy Gilpin, Tanya Effler, Doug ‘Doe,’ Sonya Riley,
Destiny 	Anderson, 	Samantha 	‘Doe,’ 	and 	Deandra 	Christianson 	did 	not 	re-fill 	his
prescription for a narcotic medication following his surgery. (Compl. ¶¶ 34-35.) According
to Mr. McGuire, in declining to do so, Defendant Anderson explained to him that MSOP
medical staff was not required to follow outside orders because they are only suggestions.
(Id. ¶ 38.) He further claims that “Defendants Kristy Gilpin, Tanya Effler, Doug ‘Doe,’
Sonya 	Riley, 	Destiny 	Anderson, 	Samantha 	‘Doe,’ 	and 	Deandra 	Christianson”
misdiagnosed his foot pain for “months and years.” (Id. ¶ 42.) Indeed, he claims that they
have failed to properly treat any of his medical conditions, leaving him to experience daily
flu-like symptoms. (Id. ¶ 45.) And he says that he has been diagnosed with spinal stenosis,
the narrowing of the spinal cord, but the medical team refused to approve a medical
mattress that would help treat this condition, contrary to the orders from his treating
physician. (Id. ¶ 46.)
“Generally, the actor manifests deliberate indifference by intentionally denying or
delaying access to medical care, or intentionally interfering with treatment or medication
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that has been prescribed.” Davis v. Buchanan Cty., Missouri, 11 F.4th 604, 624 (8th Cir.
2021) (citation omitted); see also Phillips v. Jasper Cty. Jail, 437 F.3d 791, 796 (8th Cir.
2006) (“[T]he knowing failure to administer prescribed medicine can itself constitute
deliberate indifference.”). But “a prisoner’s mere difference of opinion over matters of
expert medical judgment or a course of medical treatment fails to rise to the level of a
constitutional violation.” Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010).
These claims fall into the latter category: Mr. McGuire’s medical team at the
hospital prescribed him a narcotic for his pain, but the MSOP medical team decided his
medical needs did not require them to refill that prescription.2 Mr. McGuire plainly
disagrees 	with 	the 	conclusions 	reached 	by 	his 	MSOP 	medical 	team. 	But 	such
disagreements do not amount to a constitutional violation. See Goodwin, 696 F.Supp.3d at
747-48 	(disagreement 	regarding 	pain 	management 	did 	not 	amount 	to 	deliberate
indifference). Similarly, while he claims that the MSOP medical team misdiagnosed his
conditions and disagreed with his treating physician’s assessment that he required a
“medical mattress,” these claims amount to a difference in opinion on how his medical
conditions should be treated, or, at most, medical negligence, they do not evince a failure
to provide medical treatment. Mr. McGuire’s medical indifference claims should therefore
be dismissed.
2 Mr. McGuire describes “Defendants Kristy Gilpin, Tanya Effler, Doug ‘Doe,’ Sonya
Riley, Destiny Anderson, Samantha ‘Doe,’ and Deandra Christianson [as] nursing staff at
the MSOP program.” (Compl. ¶ 14.)
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c. 	Miscellaneous Medical Grievances
Still more, Mr. McGuire asserts all twenty-eight defendants have “refused [him]
access to adequate medical treatment, occupational therapy, and mental health care,”
(Compl. ¶ 116), that he was on a waiting list for several weeks to be transported for an
outside medical appointment, (id. ¶ 119), that the defendants have failed to provide him
with a special diet and unspecified medications after surgery, (id. ¶ 122), and that MSOP
policy requires staff to be present in the exam room. (Id. ¶ 123).
These claims are not plausible allegations of constitutional violations. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,” are
insufficient to assert a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Which
defendants denied him access to medical treatment, what medical treatment was he denied,
and when? What medical appointment did he wait for weeks to attend? What medical
condition required treatment? What surgery did he have that required him to eat a specific
diet? Which defendants denied him that diet? What constitutional right did MSOP staff
violate by being present in the exam room with him? Mr. McGuire’s complaint does not
provide this factual detail. And this Court will not sift through his 50-page complaint and
100-page exhibit in search of it. See Gregory v. Dillard’s, 565 F.3d 464, 473 (8th Cir. 2009)
(“A district court [] is not required to divine the litigant’s intent and create claims that are
not clearly raised, and it need not conjure up unpled allegations to save a complaint.”)
(internal citations and quotations omitted). In short, this list of generalized grievances fails
to establish a plausible claim for relief for failure to provide constitutionally adequate
medical care and should therefore be dismissed on that basis.
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2. 	Retaliation (Claim II)
Count Two of the complaint alleges that Mr. McGuire has been subject to unlawful
retaliation. To prevail on a First Amendment retaliation claim, Mr. McGuire must show:
“(1) that he engaged in a constitutionally protected activity; (2) that the defendant took
adverse action against him that would chill a person of ordinary firmness from continuing
in the activity; and (3) that the adverse action was motivated in part by [his] exercise of his
constitutional rights.” Scheffler v. Molin, 743 F.3d 619, 621 (8th Cir. 2014) (citing Naucke
v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002)).
a. 	General Claims of Retaliation
As a preliminary matter, Mr. McGuire repeatedly asserts that he has been retaliated
against. He claims, for example, that defendants (seemingly every defendant) have
retaliated against him “for asking them to accommodate him and allow him to eat on the
unit due to his painful medical conditions.” (Compl. ¶ 57.) And he says that the defendants
(again, seemingly every defendant) “are freely allowed to retaliate against [him] for
complaining about the lack of medical care, living conditions, and denial of the right to
treatment and periodic review for release.” (Id. ¶ 56.) These examples are merely a
sampling of conduct he describes as “retaliatory.” But they nevertheless all fail for the same
reason: they are purely conclusory. With respect to each of these examples, he does not
describe how he has been retaliated against, nor does he provide any factual matter that
would establish a plausible claim that this retaliatory conduct was motivated (at least in
part) because he engaged in some protected activity. See Baribeau v. City of Minneapolis,
596 F.3d 465, 481 (8th Cir. 2010) (“To prevail in an action for First Amendment retaliation,
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plaintiff must show a causal connection between a defendant’s retaliatory animus and
plaintiff’s subsequent injury.”). Mr. McGuire’s generalized allegations of retaliation
should therefore be dismissed for failure to state a plausible claim for relief.
That said, upon close review of the complaint, this Court has identified two
instances of alleged retaliation that Mr. McGuire describes with additional factual detail.
The Court discusses these two instances in more detail below.
b. 	“Controlled Movement” Policy
Mr. McGuire asserts that MSOP staff retaliated against him (and other MSOP
clients) by imposing a more restrictive movement policy after a former MSOP staff member
claimed in an interview with the news media that MSOP therapists had been directed to
lower clients’ treatment scores. (Compl. ¶¶ 60, 64–65.) The problem with this retaliation
claim is obvious: Mr. McGuire does not allege that he participated in a constitutionally
protected activity. Rather, he claims that the defendants retaliated against him because a
former MSOP staff member engaged in a constitutionally protected activity by sitting for
an interview with the news media. Mr. McGuire’s retaliation claim, therefore, fails to
satisfy the first element, and should be dismissed.
c. 	Room Search and Disciplinary Proceedings
Mr. McGuire describes several other incidents as retaliatory. He says that Defendant
Halvorson, among others, participated in an internet “hate group” that was disparaging and
threatening towards MSOP clients. (See Compl. ¶¶ 66, 69.) In retaliation for Mr. McGuire
reporting this to management, he says that Defendant Halvorson searched his room and
planted a pen containing ecstasy residue, which then formed the basis for disciplinary
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proceedings against Mr. McGuire. (Id. ¶ 80.) He claims that Defendant Jana Brister-Korby
directed Defendant Halvorson to search his room, claiming it smelled like marijuana when,
in fact, his roommate had been engaging in the daily practice of “smudging” sage.
(Id. ¶ 71.)
While “[a]n inmate may maintain a cause of action for retaliatory discipline under
42 U.S.C. § 1983 where a prison official files disciplinary charges in retaliation for an
inmate’s exercise of constitutional rights, . . . claims of retaliation fail if the alleged
retaliatory conduct violations were issued for the actual violation of a prison rule.”
Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir. 2008) (internal citations omitted). “Thus,
a defendant may successfully defend a retaliatory discipline claim by showing ‘some
evidence’ the inmate actually committed a rule violation.” Id. (citing Goff v. Burton, 7 F.3d
734, 738-39 (8th Cir. 1993)). “[A] report from a correctional officer, even if disputed by
the inmate and supported by no other evidence, legally suffices as ‘some evidence’ upon
which to base a prison disciplinary violation, if the violation is found by an impartial
decisionmaker.” Id. at 831.
At base, Mr. McGuire’s retaliatory discipline claim fails because he was found
guilty of violating facility rules after a hearing. (See Compl. ¶¶ 75.) While he claims that
the evidence—namely, the pen containing ecstasy residue—was fabricated and that he was
otherwise denied due process, he does not describe any facts suggesting what, specifically,
process he was denied. Further, and more to the point, he makes no claim that the
disciplinary hearing committee was somehow biased against him. See Bandy-Bey v. Crist,
578 F.3d 763, 766 (8th Cir. 2009) (concluding that plaintiff’s claim for retaliatory
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discipline fails as a matter of law because plaintiff did not present any evidence implying
that the hearing officer was not impartial). Mr. McGuire, therefore, has failed to assert a
plausible retaliatory discipline claim against Defendants Brister-Kory and Halvorson.
3. 	Due Process Violations (Count Three)
With respect to Count Three, Mr. McGuire asserts that he has been subjected to
several punitive conditions of confinement without due process of law. As noted above, he
claims that he was “punitively detained to his cell as a form of punishment for over 90 days
and [was] denied his classification status,” (id.), following the disciplinary hearing on the
ecstasy that Defendant Halvorson recovered from his room. As further punishment for this
alleged 	violation, 	he 	claims 	that 	treatment 	staff 	implemented 	an 	“overly 	punitive
Individualized Program,” requiring him to attend AA groups even though the defendants
are not licensed chemical dependency evaluators. (Id. ¶¶ 83-87.) And he asserts that he has
been subject to several other punitive conditions of confinement, including denied access
to the telephone, (id. ¶ 95), frequent “lockdowns,” (id. ¶¶ 96-101), denied access to a
healthy diet and nutritious meals, (id. ¶¶ 102-108), and denied access to recreational
activities, (id. ¶¶ 109-113).
To establish a violation of procedural due process, Mr. McGuire must show that (1)
he was deprived of a protected liberty or property interest, and, if so, (2) that the defendants
denied him the process he was due. See Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th
Cir. 2006).
Mr. McGuire’s due process claims do not satisfy the first element. “Protected liberty
interests may arise from two sources—the Due Process Clause itself and the laws of the
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States.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). “The touchstone of the
inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive
conditions of confinement is not the language of regulations regarding those conditions but
the nature of those conditions themselves in relation to the ordinary incidents of prison
life.” Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (citing Sandin v. Conner, 515 U.S.
472, 484 (1995)). 	This inquiry requires 	courts to consider 	whether the restriction
“present[s] a dramatic departure from the basic conditions of the [inmate’s detention].” Id.
“Disciplinary measures that do not substantially worsen the conditions of confinement of
a lawfully confined person are not actionable under the due process clause . . . regardless
of whether the confinement is criminal or civil.” Miles v. Korby, Case No. 17-cv-0263
(PJS/LIB), 2017 WL 1169639 (D. Minn. Mar. 3, 2017) (quoting Miller v. Dobier, 634 F.3d
412, 414-15 (7th Cir. 2011)) (citations omitted), R&R adopted by 2017 WL 1169536 (D.
Minn. Mar. 28, 2017).
a. 	Loss of Classification Status and Lockdowns
In this case, Mr. McGuire asserts no facts establishing that he was entitled to due
process protections when he was on lockdown or when he lost classification status. While
he claims that he lost his classification status for 90 days, he fails to describe what that
means, how his conditions of confinement changed during those 90 days, or how the
addition of AA programming to his treatment plan constituted a “dramatic departure from
the basic conditions of [his detention].” Wilkinson, 545 U.S. at 223. Similarly, while Mr.
McGuire claims that he has been subject to multiple lockdowns, he fails to describe any
conditions of lockdown that substantially worsen his confinement. Smith v. McKinney, 954
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F.3d 1075, 1083 (8th Cir. 2020). A “demotion to segregation, even without cause, is not
itself an atypical and significant hardship.” Id. Accordingly, Mr. McGuire has failed to
assert a plausible due process claim.
To the extent, moreover, that Mr. McGuire claims that MSOP officials violated his
due process rights by failing to comply with their own policies during the search of his
room and his disciplinary hearing, (Compl. ¶ 73), it is well-established that the failure to
comply with policy, by itself, does not amount to a deprivation of a liberty interest
triggering due process considerations. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983)
(“The State may choose to require procedures for reasons other than protection against
deprivation of substantive rights, of course, but in making that choice the State does not
create an independent substantive right.”).
b. 	Restricted Access to Gym Equipment and the Telephone
Further, this District has considered whether restrictions on access to the gym and
loss of visitation privileges implicate a protected liberty interest in the context of MSOP
detention and has concluded that they do not. See Miles, 2017 WL 1169639. In Miles,
plaintiffs filed a 42 U.S.C. § 1983 action claiming that the denial of privileges by MSOP
officials—specifically visitation privileges and use of the gym—amounted to a deprivation
of a state-created liberty interest without due process of law. Id. at *1. The district court
disagreed, concluding that the loss of access to the gym “only incidentally restricts the
conditions of their confinement.” Id. at *3. “[A]lthough detainees may have a liberty
interest in some access to exercise, what is at issue in this matter is not Plaintiffs’ access to
exercise, but instead their access to the use of a particular gym.” Id. at *3 (quoting Phillips
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v. Norris, 320 F.3d 844, 847 (8th Cir. 2003)). Further, the district court noted that “loss of
visitation privileges is within the ordinary incidents of confinement and cannot be
considered an atypical and significant hardship.” Id. at *3 (quoting Ware v. Morrison, 276
F.3d 385, 387 (8th Cir. 2002)).
This Court is persuaded that this analysis applies in equal force to Mr. McGuire’s
claim that MSOP officials have failed to make recreational equipment available to him and
have failed to allow him uninterrupted access to the telephone to contact his family.
(Compl. ¶¶ 109–113.) Here, as in Miles, the question is not whether Mr. McGuire has
access to exercise, but whether he has access to games and equipment of his choosing.
Such deprivations simply do not rise to a protected liberty interest triggering due process
protections. 	Similarly, 	Mr. 	McGuire 	claims 	that 	the 	defendants 	“punished 	[him]
by . . . denying him the right to telephone his family, support people, attorneys . . ..”
(Compl. ¶ 95.) But he describes no facts related to this restriction—i.e., how frequently he
was denied access—that would give rise to a reasonable inference that such a restriction
imposed upon him an “atypical and significant hardship . . . in relation to the ordinary
incidents” of his confinement. Sandin, 515 U.S. at 484.
c. 	Failure to Provide Nutritious Meals
Mr. McGuire describes the defendants’ alleged failure to provide him with more
nutritious meals, such as those including fresh fruits and vegetables, as unconstitutionally
punitive. (See Compl. ¶¶ 102-108.) The fundamental problem with this claim is that he
fails to assert any facts establishing that the meals he is currently receiving are insufficient
given his dietary restrictions (Mr. McGuire is diabetic). Put differently, while he claims
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that he would like a different diet, he does not assert any facts suggesting that the diet he
is currently receiving is constitutionally inadequate.
Furthermore, while he claims that he has missed meals because he was on the
telephone or in his room during mealtimes, (Compl. ¶¶ 102–103), he does not assert any
facts establishing the frequency of his missed meals (or the period of time over which he
missed those meals) that would give rise to a reasonable inference that such a condition
amounts to an “atypical and significant hardship” in relation to the ordinary incidents of
his confinement.
d. 	Substantive Due Process
Finally, up to this point, this Court has construed Mr. McGuire’s due process claims
in terms of procedural due process. To the extent that he contends that these conditions of
confinement violate his substantive due process rights, he must “demonstrate both that the
[state defendants’] conduct was conscience-shocking, and that the [state defendants]
violated one or more fundamental rights that are deeply rooted in this Nation’s history and
tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice
would exist if they were sacrificed.” Karsjens v. Piper, 845 F.3d 394, 408 (8th Cir. 2017)
(internal quotations and citations omitted) (cleaned up). To meet the high standard of
determining whether the defendants’ conduct was conscience-shocking, “the alleged
substantive due process violations must involve conduct so severe . . . so disproportionate
to the need presented, and . . . so inspired by malice or sadism rather than a merely careless
or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power.”
Id. (internal quotations omitted) (cleaned up).
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Here, 	Mr. 	McGuire 	asserts 	no 	facts 	establishing 	that 	his 	allegedly 	punitive
conditions of confinement rise to the level of conscience-shocking conduct. He asserts no
facts, for example, claiming that MSOP policies on mealtimes have caused him to
repeatedly miss meals, leading him to lose significant weight or to experience diabetes-
related complications. Similarly, Mr. McGuire asserts no facts establishing that the meals
he receives do not contain sufficient nutrients, he only claims that he is not receiving those
nutrients in his preferred format (i.e. in the form of fresh fruits and vegetables). Cf. Bishop
v. Jesson, Case No. 14-CV-1898 (ADM/SER), 2016 WL 8674584, at *11-12 (Feb. 12,
2016) (discussing plaintiff’s substantive due process claim related to failure to provide
adequately nutritious food), R&R adopted by 2016 WL 906422 (D. Minn. Mar. 9, 2016).
Similarly, because Mr. McGuire asserts no facts suggesting that he is not allowed to
exercise at all, the Court concludes that he has failed to assert a plausible claim that his
access to a limited variety of gym equipment is “conscience shocking.”
In sum, this Court therefore recommends that Mr. McGuire’s substantive and
procedural due process claims be dismissed for failure to state a plausible constitutional
violation.
4. 	Conspiracy (Count Four)
Turning now to Count Four, Mr. McGuire asserts that all twenty-eight defendants
have conspired to deprive him of his rights under the Equal Protection Clause of the
Fourteenth Amendment. (Compl. at p. 43.) “To prove a 42 U.S.C. § 1983 conspiracy claim,
a plaintiff must show: (1) that the defendant conspired with others to deprive him of
constitutional rights; (2) that at least one of the alleged co-conspirators engaged in an overt
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act in furtherance of the conspiracy; and (3) that the overt act injured the plaintiff.” White
v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008). A conspiracy claim, moreover, “requires
a complaint with enough factual matter (taken as true) to suggest that an agreement was
made.” Faulk v. City of St. Louis, Missouri, 30 F.4th 739, 748 (8th Cir. 2022) (quoting
Twombly, 550 U.S. at 564)).
In this case, the complaint contains generalized assertions of a conspiracy—Mr.
McGuire asserts, for example, that “Defendant Shelby Halvorson and several unknown
persons conspired to form a hate group on the internet to kill MSOP clients such as
Plaintiff,” (Compl. ¶ 69), and that Defendant Halvorson “conspired to retaliate against
Plaintiff by exaggerating fear by false reporting to the 2025 Legislative Session with stories
of violence from the MSOP program,” (id. ¶ 70). But these allegations are entirely
conclusory, devoid of any factual matter showing that an agreement had been made to
violate Mr. McGuire’s constitutional rights. “Without some further factual enhancement [a
naked assertion of conspiracy] stops short of the line between possibility and plausibility
of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557). Mr. McGuire’s conspiracy
claim fails as a matter of law.
5. 	Conclusion
In sum, as described in detail above, Mr. McGuire’s § 1983 claims fail as a matter
of law because he has failed to assert a plausible constitutional violation. Counts One,
Two, Three, and Four should therefore be dismissed on that basis.
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B. 	ADA and RA Claims (Count Seven)
With respect to Count Seven, Mr. McGuire asserts that he has been discriminated
against on basis of his disability in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12131 et seq., and the Rehabilitation Act (“RA”), 29 U.S.C. § 701
et seq. Specifically, Mr. McGuire claims that the defendants “injured [him] and other
members of the ADA class by excluding them from participating in or denying them
benefits of the services, programs, or activities of a public entity, or by subjecting them to
discrimination by any such entity and denying them treatment in the least restrictive
setting.” (Compl. p. 45.)
The ADA and RA “prohibit a public entity from denying its services to a qualified
individual with a disability by reason of that disability.” Hooper v. City of St. Paul, 17-CV-
3442 (PJS/DTS), 2019 WL 4015443, at *5 (D. Minn. Aug. 26, 2019) (citing 42
U.S.C. § 12132 (ADA) and 29 U.S.C. § 794 (RA)). Because courts construe claims under
the ADA and RA similarly, they typically consider these claims together. See Bahl v. Cty.
of Ramsey, 695 F.3d 778, 783-84 (8th Cir. 2012). To establish a prima facie case for
disability discrimination, Mr. McGuire must show that he: (1) is a person with a disability
as defined by the statute; (2) is otherwise qualified for the benefit in question; and (3) was
excluded from the benefit due to discrimination based on his disability. See Randolph v.
Rodgers, 170 F.3d 850, 858 (8th Cir. 1999). “The RA contains the additional requirement
that the plaintiff show the program or activity from which he is excluded receives federal
financial assistance.” Id.
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In this case, Mr. McGuire has failed to plead sufficient facts to establish the third
element—i.e., that he has been discriminated against based on his disability. Construing
Mr. McGuire’s complaint liberally, he asserts two means of discrimination: intentional
discrimination and failure to make reasonable accommodations. The Court discusses both.
A disparate treatment or intentional discrimination claim under the ADA provides
that “a similarly situated disabled individual is treated differently because of his disability
than less- or non-disabled individuals.” Peebles v. Potter, 354 F.3d 761, 766 (8th Cir.
2004). “The key element is discriminatory intent.” Id. While Mr. McGuire claims that he
has limited recreational opportunities at MSOP, that MSOP officials have declined his
requests to eat his meals in his unit or to be transferred to a less restrictive setting,
(Compl. ¶¶ 109, 57, 121), he asserts no facts suggesting that MSOP officials treated him
differently 	than 	the 	non-disabled 	MSOP 	clients. 	Indeed, 	it 	appears 	that 	all 	non-
developmentally disabled MSOP clients, such as Mr. McGuire, are subject to limited
recreational 	opportunities 	at 	MSOP. 	(Id. 	¶ 109.) 	Furthermore, 	he 	asserts 	no 	facts
establishing that he is similarly situated (i.e. similarly disabled) as the MSOP clients who
have been allowed to eat in their units or transferred to a less restrictive environment
because of their disabilities. (Id. ¶ 57.)
To 	the 	extent 	Mr. 	McGuire 	brings 	a 	claim 	under 	the 	ADA 	for 	failure 	to
accommodate, he “must specify a benefit to which he was denied meaningful access based
on his disability.” Mason v. Corr. Med. Servs., 559 F.3d 880, 888 (8th Cir. 2009) (citing
42 U.S.C. § 12132). Mr. McGuire claims that the recreational opportunities at MSOP fail
to accommodate his disabilities. (Compl. ¶ 109.) But he asserts no facts suggesting that his
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disabilities preclude him from meaningful access to the recreational opportunities that are
available to him and the other MSOP clients. Similarly, to the extent that he claims that he
was excluded from meals because MSOP officials declined his requests to eat his meals in
his unit, Mr. McGuire has failed to assert any facts establishing that this exclusion was by
reason of his disability, as opposed to an acute medical condition or spending too long on
the phone. (See id. ¶ 102). Mr. McGuire’s ADA and RA claims therefore fail as a matter
of law.
C. 	State Law Causes of Action (Counts Five and Six)
Turning finally to Mr. McGuire’s claims of intentional infliction of emotional
distress (Count Five) and negligent infliction of emotional distress (Count Six), such claims
are grounded in Minnesota state tort law. See Kelly v. City of Minneapolis, 598 N.W.2d
657, 663 (Minn. 1999) (describing the elements of intentional infliction of emotional
distress) (citing Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 438-39 (Minn.
1983)); Yath v. Fairview Clinics, N.P., 767 N.W.2d 34, 46 (Minn. Ct. App. 2009)
(explaining that a plaintiff may recover for the state-tort negligent infliction of emotional
distress only “when that plaintiff is within a zone of danger of physical impact, reasonably
fears for his or her own safety, and consequently suffers severe emotional distress with
resultant physical injury”). Where, as here, all federal claims are dismissed prior to trial,
however, the Eighth Circuit has instructed courts to not exercise supplemental jurisdiction
over state-law claims. See Hervey v. Cty. of Koochiching, 527 F.3d 711, 726-27 (8th Cir.
2008). Mr. McGuire’s claims for intentional infliction of emotional distress and negligent
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infliction of emotional distress should therefore be dismissed for lack of subject matter
jurisdiction.3
In conclusion, therefore, this Court recommends that Mr. McGuire’s federal causes
of action (Counts One through Four and Seven) be dismissed for failure to state a plausible
claim for relief, see 28 U.S.C. § 1915(e)(2)(B)(ii), and that the state law causes of action
(claims five and six) be dismissed for lack of subject matter jurisdiction, see Fed. R. Civ.
P. 12(h)(3).
RECOMMENDATION
Based on the foregoing, and on all of the files, records, and proceedings herein, IT
IS RECOMMENDED THAT:
1. 	Plaintiff David J. McGuire’s Complaint, (Dkt. No. 1), be DISMISSED WITHOUT
PREJUDICE—the federal causes of action for failure to state a plausible claim for
relief, see 28 U.S.C. § 1915(e)(2)(B)(ii), and the state law causes of action for lack
of subject matter jurisdiction, Fed. R. Civ. P. 12(h)(3).
2. 	Plaintiff’s application to proceed in forma pauperis (“IFP”), (Dkt. No. 2), be
DENIED as MOOT; and
3 Mr. McGuire spends several paragraphs asserting that MSOP has implemented a policy
that allows officials to hire unqualified employees. (See Compl. ¶¶ 126-133.) While not
identified as a separate cause of action, to the extent that Mr. McGuire asserts a claim for
“negligent hiring and negligent credentialing,” such claims are also grounded in state tort
law. See Johnson v. Peterson, 734 N.W.2d 275, 277 (Minn. Ct. App. 2007) (describing the
tort of negligent hiring as requiring a showing “that it was foreseeable either that the
employee posed a threat of physical injury or that the employee inflicted physical injury”).
Accordingly, to the extent they are asserted, this Court recommends that they be dismissed
for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
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3. 	Plaintiff’s Motion to Appoint Counsel, (Dkt. No. 5), be DENIED as MOOT.
Date: December 5, 2025 	s/ John F. Docherty
JOHN F. DOCHERTY
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a
magistrate judge’s proposed finding and recommendations within 14 days after being
served a copy” of the Report and Recommendation. A party may respond to those
objections within 14 days after being served a copy of the objections. See Local Rule
72.2(b)(2). All objections and responses must comply with the word or line limits set forth
in Local Rule 72.2(c).
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