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 Annabelle Ochoa,
Defendants.
Case No. 25-cv-4517 (JWB/SGE)
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff Alveto Rivera’s Complaint With Jury
Demand, (Dkt. 1) (“Complaint”), and his application to proceed in forma pauperis, (Dkt.
2) (“IFP Application”). For the reasons below, the Court recommends dismissing this
action and denying the IFP Application as moot.
I. Background
Mr. Rivera is civilly committed to the Minnesota Sex Offender Program (“MSOP”)
and is currently housed at the MSOP campus in St. Peter, Minnesota (“St. Peter”). See
Compl. 1. The Court understands the Complaint to allege that, until recently, Mr. Rivera
was housed at MSOP’s Moose Lake campus (“Moose Lake”). See Compl. ¶¶ 9, 33. In
January 2025, Defendant Evelyn Flesvig, Mr. Rivera’s primary therapist at Moose Lake,
asked him to take “a test.” Id. She repeatedly told Mr. Rivera the test was “just for Moose
Lake treatment” so she could determine “how to provide the best treatment” for him, and
she assured him it was “not anything to worry about.” Id. ¶¶ 6–7, 11. Mr. Rivera alleges
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that, unbeknownst to him, Ms. Flesvig sought to remove him from Moose Lake and send
him to St. Peter. See id. ¶¶ 8–9.
Mr. Rivera alleges that, based on Ms. Flesvig’s statements, he agreed to take the
exam. In March 2025, he met with Defendant Anabelle Ochoa (described as an “unlicensed
psychologist”), who gave him a series of exercises. Id. ¶¶ 12, 15. Ms. Ochoa told
Mr. Rivera to take his time and not to “rush” on the tests, reiterating that the testing was
“just for here at MSOP Moose Lake” to help him improve his treatment there. Id. ¶¶ 12–
13. Ms. Ochoa did not disclose that the exam was an evaluative tool that could affect
Mr. Rivera’s placement. See id. ¶ 14. According to the Complaint, Mr. Rivera did not
understand the nature or consequences of the testing at the time, did not “verbally express
[any] understanding,” and signed a relevant consent form only after completing the exam,
without grasping the test’s implications. Id. ¶¶ 17-19. Mr. Rivera alleges that Ms. Flesvig,
Ms. Ochoa, and Defendants Charles S. Fai and Philip W. Olson, all members of Mr.
Rivera’s treatment team at Moose Lake, failed to explain the assessment’s true purpose or
to warn him how it would be used. Id. ¶¶ 20, 22. Critically, they never told Mr. Rivera
that the testing was meant “to obtain his current level of cognitive functioning” as part of
a process that could lead to a transfer. Id. ¶¶ 22, 24.
Mr. Rivera alleges that MSOP officials used his test results to justify moving him
out of Moose Lake in October 2025. Ms. Flesvig and Mr. Fai signed paperwork to have
Rivera transferred to St. Peter for treatment. See id. ¶¶ 31, 55, 60. Mr. Rivera asserts that
neither Ms. Flesvig nor Mr. Fai spoke to him or gave him any notice before arranging the
transfer. See id. ¶¶ 31–32. Near the transfer, Ms. Flesvig, Mr. Fai, and Mr. Olson allegedly
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told Mr. Rivera that going to St. Peter would benefit him because “if he go[es] to St. Peter
[for] treatment, he will get out of MSOP faster.” Id. ¶ 44. Mr. Rivera apparently believes
this statement was false and intended to mislead him or placate him. See, e.g., id. ¶ 45.
After the transfer, Mr. Rivera alleges, St. Peter did not credit any of his prior
treatment progress at Moose Lake. He claims he was forced to “start all over” at “phase
one” despite having spent significant time working through that phase at Moose Lake. Id.
at 13-14. Mr. Rivera characterizes the transfer and loss of treatment progress as a punitive
measure unsupported by any legitimate justification—essentially punishment for scoring
low on the examination. See id. ¶¶ 8–9, 21, 24, 36, 63–64. Mr. Rivera also alleges that
Defendants have never provided him with a copy of the test results or any “adequate written
information” about the test. Id. ¶ 72.
Construing the Complaint liberally, the Court reads it to assert six causes of action
based on Defendants’ alleged conduct. As to federal claims, Mr. Rivera proceeds under 42
U.S.C. § 1983 and alleges due-process violations tied to the test and his transfer from
Moose Lake to St. Peter. See id. at 1–2; id. ¶¶ 6, 8–9, 72. On the Court’s reading,
Mr. Rivera asserts both procedural- and substantive-due-process claims. The Complaint
also references the Fifth and Sixth Amendments. See, e.g., id. ¶¶ 69, 71. The Court also
reads the Complaint to assert two state-law claims. Mr. Rivera alleges negligence, claiming
Defendants breached a duty of care by failing to inform him of the exam’s true purpose
and potential consequences. See id. ¶ 73. He also seems to allege fraud (or intentional
misrepresentation), asserting that Defendants misrepresented or concealed the exam’s
nature and consequences, made false promises (including that he would get out sooner if
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transferred), and that he relied on those misstatements to his detriment. See id. ¶¶ 6–9, 21–
24, 44, 67.
For relief, Mr. Rivera seeks both damages and injunctive relief. See id. at 12–16.
More specifically, he requests: (1) a declaratory judgment that Defendants’ actions violated
his rights; (2) an injunction requiring Defendants to explain the reasons for his transfer and
to restore the treatment progress Mr. Rivera made at Moose Lake; (3) an injunction
directing that Ms. Flesvig and Mr. Fai be removed or resign from their positions; and
(4) compensatory damages (totaling $6 million) and punitive damages (apparently totaling
about $800,000) for Mr. Rivera’s injuries due to the allegedly wrongful transfer. See id. at
13-15.
II. Analysis
A. Standards of Review
Rather than pay this action’s filing fee, Mr. Rivera submitted the IFP Application,
which suggests he qualifies financially for in forma pauperis status. But under the federal
statute governing IFP proceedings, “[n]otwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall dismiss [an IFP matter] at any time if the
court determines that . . . the action . . . fails to state a claim on which relief may be
granted . . . .” 28 U.S.C. § 1915(e)(2).
When deciding whether a complaint states a claim, a court accepts its factual
allegations as true and grants the plaintiff every reasonable inference. See, e.g., Varga v.
U.S. Bank Nat. Ass’n, 764 F.3d 833, 836 (8th Cir. 2014) (citing Loftness Specialized Farm
Equip., Inc. v. Twiestmeyer, 742 F.3d 845, 854 (8th Cir. 2014)). A complaint need not be
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detailed, but its allegations must “raise a right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). It must also “state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). This plausibility test is “context-specific” and depends on a court’s
“judicial experience and common sense.” Id. at 679; see also Zink v. Lombardi, 783 F.3d
1089, 1098 (8th Cir. 2015) (en banc). Although courts are to read pro se complaints
liberally, such pleadings must still include enough facts to support each claim. See, e.g.,
Sandknop v. Mo. Dep’t of Corrs., 932 F.3d 739, 741–42 (8th Cir. 2019) (quoting Stone v.
Harry, 364 F.3d 912, 914 (8th Cir. 2004)).
B. Official-Capacity Claims
Mr. Rivera purports to sue each Defendant in both their individual and official
capacities. See Compl. ¶ 4. Courts generally treat official-capacity claims as claims against
the governmental entity that employs the relevant official. See, e.g., Kentucky v. Graham,
473 U.S. 159, 165–66 (1985) (citing cases). Defendants are employees of MSOP, which
is operated by the Minnesota Department of Human Services, a state agency. The official-
capacity claims are therefore claims against the State of Minnesota.
The Eleventh Amendment, however, generally immunizes states and state agencies
from suit in federal court unless the state has unequivocally waived immunity or Congress
has validly abrogated it. See, e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66–67
(1989). Minnesota has not waived its immunity for § 1983 damages actions, and § 1983
(the source of Mr. Rivera’s constitutional claims here) does not abrogate state sovereign
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immunity. See id. at 66. Accordingly, to the extent Mr. Rivera seeks monetary relief
against Defendants in their official capacities, the Eleventh Amendment bars those claims.1
C. Procedural Due Process
Mr. Rivera’s principal federal claim is that MSOP staff violated his Fourteenth
Amendment rights by deceiving him about the test and transferring him to St. Peter without
due process. This claim potentially invokes both procedural due process and substantive
due process. The Court addresses the procedural-due-process claim first.
To plead a procedural-due-process claim under § 1983, a plaintiff must allege facts
showing that he was deprived of a constitutionally protected liberty or property interest.
See, e.g., Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Only after establishing such an
interest does the question of what process was due (and whether it was provided) become
relevant. See, e.g., Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006) (citing
Mathews v. Eldredge, 424 U.S. 319, 332–35 (1976)).
The Complaint does not identify a specific liberty interest that Mr. Rivera was
deprived of without sufficient process. Mr. Rivera suggests that his transfer to St. Peter
(and the accompanying alleged loss of treatment progress) amount to unlawful punishment
or a restraint on his liberty. But not every transfer or change in conditions affects a
1 To be sure, under Ex parte Young, plaintiffs can sue state officials in their official capacity
for an injunction to stop an ongoing violation of federal law. 209 U.S. 123 (1908). And
the Complaint does seek certain forward-looking relief (e.g., orders compelling Defendants
to restore his allegedly lost treatment progress and to fire certain Defendants). See Compl.
14-15. But the Court may grant such injunctive relief only if Mr. Rivera first states a viable
federal claim and shows that the requested relief would address that violation. As
explained below, he has not stated any viable federal claim.
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protected liberty interest or requires formal process. In the related (though distinct) prison
context, for example, a prisoner generally has no liberty interest in assignment to a
particular facility unless the transfer “imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472,
484, 486 (1995).
A civilly committed individual might therefore claim a liberty interest in avoiding a
transfer that results in such a hardship. But the Complaint contains no allegations
suggesting that Mr. Rivera’s transfer to St. Peter imposed new physical restraints or atypical
conditions. Moose Lake and St. Peter are both treatment facilities within MSOP, and the
transfer did not change Mr. Rivera’s basic custodial status as a civilly committed patient.
Cf. Linehan v. Johnston, No. 18-CV-3483 (WMW/KMM), 2019 WL 6879366, at *3
(D. Minn. Nov. 26, 2019) (finding no protectible interest where MSOP client was
“removed from a vocational program and received a relatively brief placement on an
unexplained ‘restricted status’”), report and recommendation adopted, 2019 WL 6873984
(D. Minn. Dec. 17, 2019); Flores v. Moser, No. 16-CV-1860 (ADM/KMM), 2019 WL
2016789, at *7 (D. Minn. Jan. 7, 2019) (finding no protectible interest where MSOP client
was transferred into “Omega-1 unit”).
Absent a concrete liberty interest, Mr. Rivera has failed to state a Fourteenth
Amendment procedural-due-process claim. The Court therefore recommends dismissing
the Complaint to the extent it brings such a claim.
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D. Substantive Due Process
Mr. Rivera also fails to state a substantive-due-process claim under the Fourteenth
Amendment. To state such a claim, a plaintiff must allege that a government official’s
conduct “‘violated one or more fundamental constitutional rights’ and [was] ‘shocking to
the contemporary conscience.’” C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591
F.3d 624, 634 (8th Cir. 2010) (quoting Flowers v. City of Minneapolis, 478 F.3d 869, 873
(8th Cir. 2007) (brackets added)); see also, e.g., Elsharkawy v. Chisago Lakes Sch. Dist.
Bd. of Educ., No. 20-CV-1971 (DSD/ECW), 2021 WL 3293627, at *4 (D. Minn. Aug. 2,
2021) (quoting Akins v. Epperly, 588 F.3d 1178, 1183 (8th Cir. 2009)). The “shocks the
conscience” standard applies only to conduct that is brutal, egregious, or constitutionally
arbitrary. See, e.g., Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846–50 (1998) (citing
cases); Doe v. Aberdeen Sch. Dist., 42 F.4th 883, 894 (8th Cir. 2022) (quoting Lewis-reliant
caselaw).
The Court easily concludes that the conduct alleged here does not plausibly qualify
as conscience-shocking. Mr. Rivera’s substantive-due-process theory is apparently that
Defendants maliciously tricked him into a situation that allowed them to transfer him to a
different MSOP facility without therapeutic justification. But even on Mr. Rivera’s
account, the Complaint does not plausibly meet the shocks-the-conscience standard.
E. Fifth Amendment
Mr. Rivera’s attempt to rely on the Fifth Amendment suffers from a threshold flaw:
that amendment applies to the federal government, not state officials. See, e.g., Boulanger
v. Holets, No. 23-CV-3696 (KMM/LIB), 2024 WL 4234962, at *4 (D. Minn. Sept. 19,
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2024) (citing Barnes v. City of Omaha, 574 F.3d 1003, 1005 n.2 (8th Cir. 2009)), aff’d,
No. 24-3131, 2025 WL 1176370 (8th Cir. Apr. 23, 2025). Defendants are all state
employees, not federal actors. Any due process claim against Defendants must therefore
proceed under the Fourteenth Amendment (as discussed above), not the Fifth. The Court
therefore dismisses the Complaint to the extent it presses claims under the Fifth
Amendment.
F. Sixth Amendment
Mr. Rivera cites the Sixth Amendment, but his theory here is unclear. The Sixth
Amendment guarantees rights such as the assistance of counsel, a speedy and public trial,
an impartial jury, and confrontation of witnesses. See U.S. Const. amend. VI. But the
Amendment explicitly applies to “criminal prosecutions,” see id., and nothing in the
Complaint involves a criminal prosecution of Mr. Rivera. Mr. Rivera is civilly committed,
and the events at issue concern his treatment and confinement conditions. The Sixth
Amendment’s protections therefore do not apply here. See, e.g., Linehan v. Johnston,
No. 18-CV-3483 (WMW/KMM), 2019 WL 6879366, at *7 (D. Minn. Nov. 26, 2019)
(collecting cases), report and recommendation adopted, 2019 WL 6873984 (D. Minn.
Dec. 17, 2019). The Court therefore recommends dismissing the Complaint to the extent
it seeks to raise a Sixth Amendment claim.
G. Supplemental Jurisdiction
Under the discussion above, the Court recommends dismissing all of the
Complaint’s federal-law claims. As noted above, however, the Complaint also raises
certain state-law claims, which in turn raises the question of supplemental jurisdiction.
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Under 28 U.S.C. § 1367(a), “in 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 . . . .” But § 1367(c)(3) lets a district court “decline
to exercise supplemental jurisdiction over a claim under [§ 1367(a)] if . . . the district court
has dismissed all claims over which it has original jurisdiction.”
The Eighth Circuit has provided explicit guidance that applies here:
A federal district court has discretionary power to decline the
exercise of supplemental jurisdiction where the court has
dismissed all claims over which it has original jurisdiction.
The factors a court should consider in determining whether to
exercise jurisdiction over pendent state law claims are judicial
economy, convenience, fairness, and comity. [I]n the usual
case in which all federal-law claims are eliminated before trial,
the balance of factors to be considered under the pendent
jurisdiction doctrine . . . will point toward declining to exercise
jurisdiction over the remaining state-law claims.
Wilson v. Miller, 821 F.3d 963, 970–71 (8th Cir. 2016) (emphasis added; brackets and
ellipses in Wilson; citations and internal quotation marks omitted); see also, e.g., Schultz v.
3M Co., No. 25-CV-3223 (JMB/SGE), 2025 WL 3015136, at *3 (D. Minn. Sept. 5, 2025)
(quoting Wilson). Consistent with Wilson, the Court recommends declining to exercise
supplemental jurisdiction over Mr. Rivera’s state-law claims.
H. Summary
The discussion above recommends dismissing the Complaint in its entirety. Given
this recommendation, the Court also recommends denying the IFP Application as moot.
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RECOMMENDATION
Based on the foregoing, and on all of the files, records, and proceedings herein, IT
IS RECOMMENDED that:
1. Plaintiff Alveto Rivera’s Complaint With Jury Demand, (Dkt. 1), be
DISMISSED WITHOUT PREJUDICE.
2. Mr. Rivera’s application to proceed in forma pauperis, (Dkt. 2), be
DENIED as moot.
Dated: December 19, 2025 s/Shannon G. Elkins
SHANNON G. ELKINS
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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