Amen El v. Schnell, 20-CV-1327 (DSD/ECW)

CourtUnited States District Courts. 8th Circuit. United States District Court of Minnesota
Docket Number20-CV-1327 (DSD/ECW)
PartiesAMEN EL, PHARAOH EL-FOREVER LEFT-I, Plaintiff, v. PAUL SCHNELL, et al., Defendants.
Decision Date31 January 2022


PAUL SCHNELL, et al., Defendants.

No. 20-CV-1327 (DSD/ECW)

United States District Court, D. Minnesota

January 31, 2022



This matter is before the Court on Plaintiff Pharaoh El-Forever Left-i Amen El's Motion for Temporary Restraining Order (Dkt. 56); Defendants' Motion to Dismiss (Dkt. 58); Plaintiff's “Purposed [sic] Third Amended Complaint” (Dkt. 77); and Plaintiff's “Rule Nisi” (Dkt. 87), which the Court construes as a Motion for Order to Show Cause. This case has been referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, the Court recommends that Plaintiff's Motion for a Temporary Restraining Order be denied, Defendants' Motion to Dismiss be granted, Plaintiff's “Purposed [sic] Third Amended Complaint” (which the Court construes as a Motion to Amend the Second Amended Complaint) be denied, and Plaintiff's “Rule Nisi” Motion for Order to Show Cause be denied.



Amen El[1] is currently incarcerated at the Minnesota Correctional Facility-Stillwater in Bayport, Minnesota (“MCF-STW”). (Dkt. 1 ¶ 3.) On June 8, 2020, Amen El filed his Complaint against multiple defendants in their individual and official capacities, seeking relief pursuant to “42 U.S.C § 1983, Religious Land Use and Institutionalized Persons Act of 2000, Personal Injury Medical Malpractice, Suit of Equity, and under any other relevant cause of actions that [sic] various applicable laws willing to provide relief against Defendants.” (Dkt. 1 at 1-2.) Specifically, Amen El asserted four claims against Defendants, alleging that: (1) Minnesota Department of Corrections officials (“MDC Officials”) have adopted a policy with respect to “Offender Names” that violates his rights under the First Amendment by failing to honor and recognize his religious name change (id. at 3-5.); (2) certain Defendants violated his due process rights by “obstruct[ing] the prose[cution]” of a lawsuit he filed in “Washington Counties District Court” (id. at 5-7.); (3) MDC Officials violated his First Amendment rights by transferring him from the Minnesota Correctional Facility-Rush City to MCF-STW in retaliation for and in an attempt to “moot” a lawsuit Amen El brought against the officials in Chisago County District Court (id. 7-9.); and (4) he was provided insufficient medical treatment for his “chronic low back pain” in violation of the First and Eighth Amendments. (id. 9-11).


Because Plaintiff failed to pay the required filing fee with his Complaint, on July 21, 2020, the Court ordered Plaintiff to pay the filing fee or file an application to proceed in forma pauperis (“IFP”). (Dkt. 3.) Plaintiff thereafter filed an IFP application and paid an initial filing fee of $56.49. (Dkts. 7, 16.) On October 13, 2020, Plaintiff filed his First Amended Complaint, asserting essentially the same claims as those in the Initial Complaint, adding new defendants in their official and individual capacities, removing other defendants, and adding a claim that the defendants violated his First Amendment rights by interfering with his access to the courts. (Dkt. 12.)

On November 3, 2020, Amen El filed a “Supplemental Attachment to Amended Complaint” in an attempt to add a claim based on COVID-19 to his First Amended Complaint and a “Motion and Notice of Motion for Ex Parte Order to show Cause and Emergency Hearing” (“Ex Parte Motion for Order to Show Cause”). (Dkts. 13, 15.) In the Ex Parte Motion for Order to Show Cause, which the Court construed as a motion for preliminary injunction, Amen El wanted (1) to be allowed “to purchase a more efficient face mask, and other [personal protective equipment] to protect against him contracting COVID-19”; (2) to be provided “a spraybottle [with] disinfectant for any time use”; and (3) unspecified “staff” to be forced to take an “ethics training . . . on the sanctity of life in association [with] how they treat inmates.” (Dkt. 13 at 4.) The undersigned recommended denial due to procedural and substantive deficiencies on November 23, 2020 (Dkt. 23), Amen El filed “letter for reconsideration” and an objection (Dkts. 24, 31), and on February 19, 2021, U.S. District Court Judge David S. Doty overruled Amen


El's objection and adopted the Report and Recommendation in its entirety. (Dkt. 41 at 1, 4-8.)

On December 3, 2020, Amen El filed a “Motion for TRO…(ex parte order to show cause)” (“First TRO Motion”). (Dkt 27.) In the First TRO Motion, Amen El sought at least ten forms of relief relating to his COVID-19 claim pending a future preliminary injunction hearing.[2] (Id.) On January 21, 2021, the Court recommended denying the First TRO Motion due to procedural and substantive deficiencies. (Dkt. 33.) Amen El then sought dismissal of the First TRO Motion without prejudice in his objection to that recommendation (Dkt. 35), and Judge Doty granted Amen El's request on February 19, 2021. (Dkt. 41 at 1, 7-8.)


Meanwhile, on February 1, 2021, Amen El filed a “Notice of Motion and Motion for Equity Injunction, Preliminary Injunction and TRO” (“Second TRO Motion”) seeking essentially the same relief as the First TRO Motion, along with a social distancing mandate and mandatory quarantines of staff if exposed to COVID-19-infected persons. (Dkts. 36, 36-1 at 17-18.) The Court recommended denial of the Second TRO Motion on February 11, 2021. (Dkt. 39.) The Court noted numerous joinder problems in the First Amended Complaint and Supplement[3] because Amen El had alleged four separate and distinct claims in the First Amended Complaint and an additional claim in the Supplement, where each claim involved different subject matters and was asserted against multiple defendants in violation of Federal Rule of Civil Procedure 20(a)(2). (Id. at 3-10.) Because Amen El is a pro se litigant, the Court gave Amen EL “an opportunity to file a Second Amended Complaint”; instructed Amen El to “pick the one transaction or occurrence (or series of transactions or occurrences) that he wished to pursue in this action”; “limit the facts and allegations to the defendants involved in that transaction, occurrence, or series”; and “only include claims that arise out of the relevant transaction, occurrence, or series-in other words, claims that are related to each other.” (Id. at 11 (citing Fed.R.Civ.P. 20(a)(2).) Otherwise, the Court would recommend dismissal without prejudice for failure to prosecute under Federal Rule of Civil Procedure 41(b). (Id. at 11.) The Court also recommended denial of the Second TRO Motion because the


propriety of the relief it sought depended on which claim Amen El decided to assert in a Second Amended Complaint. (Id. at 12.)

Amen El did not object to the February 11, 2021 Report and Recommendation, and Judge Doty adopted it on March 9, 2021. (Dkt. 44.) On April 16, 2021, Amen El filed his Second Amended Complaint, in which he names 21 Defendants in their individual capacity only.[4] (Dkt. 46 at 1.) In the Second Amended Complaint, Amen El alleges that he was exposed to COVID-19 from approximately October 27 to December 4, 2020 at MCF-STW; that there was rapid spread of the COVID-19 virus at MCF-STW; that although Defendants “enacted cautionary measures” including “tests, masks, recommended social distancing, suspending visits temporarily, non-alcoholic hand sanitizer, amongst other things” to “reduce transmission, but ultimately these measures were inadequate, ineffective and or insufficient” because inmates were left to “police themselves, ” uninfected inmates were “mixed” with infected inmates, there were resource shortages, insufficient sanitation, and understaffing. (Id. ¶¶ 1, 20-22, 25.)

Amen El further asserts that the Defendants' inadequate response to COVID-19 exposed him to “sufficient imminent danger” because he is hypertensive, has anxiety disorder, and chronic stress, and was moved to a cell that was previously occupied by a COVID-19 positive inmate. (Id. ¶¶ 23, 26, 28.) Amen El also asserts that Defendants'


COVID-19 response fell short because Defendants took a “reactive decision making approach”; the “Defendants responsible for overseeing precautionary measure enforcement failed to sufficiently enforce the measures”; “Schell, and other defendants [sic] predecessors” prioritized security over safety; Defendants “or their officers” provided inadequate administrative grievances procedures; unnamed Defendants could have “release[ed] more inmates or hous[ed] inmates [at] Appleton prison or County jails which were spacious”; as custodians, all Defendants “[especially] DOC officials were” “obligated to protect detainees”; and “custodians and all defendants listed knew of” the dangers posed by COVID-19 and “created or allowed” the alleged actions to continue. (Id. ¶¶ 29-40.) Based on these allegations, Amen El asserts (1) a count under 42 U.S.C. § 1983 for violation of his Eighth Amendment rights[5] and (2) a count asserting a state-


law negligence claim.[6] (Id. at 2, 13-14.) He seeks $642, 857.145 in punitive damages as well as $642, 857.145 in compensatory damages against Defendants, jointly and severally. (Id. at 14.) Amen El attached to the Second Amended Complaint two Offender Kite Forms (“Kites”) (Dkt. 46-1 at 22-23), Affidavits from himself and other inmates (Dkt. 46-1 at 24-34, 38-43), and a December 1, 2020 Declaration of MCF-STW Corrections Captain Andrew Darling (“Darling Declaration”) that was submitted in connection with a lawsuit Amen El filed in Ramsey County District Court. (id. at 44-48.)

Amen El relies on the Darling Declaration to support his allegation that MCF-STW “mixed” COVID-19 positive and negative inmates. The Darling Declarations sets forth in detail the procedures...

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