Ernst v. Hinchliff, Case No. 14-cv-4923 (SRN/TNL)

• Decision Date: 27 July 2015
• Docket Number: Case No. 14-cv-4923 (SRN/TNL)
• Parties: Ronald R. Ernst, Plaintiff, v. Jon Hinchliff, Dwight Close, Jeremy Britzius, Jack Rusinoff, Ed Hanson, Barbara L. Neilson, ADL, Patricia Moen, Michelle Murphy, Scot Nadeau, Minneapolis Police Dept., MN Department of Corrections, Bloomington, MN Police Department, State of Minnesota, and Columbia Heights Police Department, Defendants.
• Court: U.S. District Court — District of Minnesota

Ronald R. Ernst, Plaintiff, v. Jon Hinchliff, Dwight Close, Jeremy Britzius, Jack Rusinoff, Ed Hanson,Barbara L. Neilson, ADL,¹ Patricia Moen, Michelle Murphy,Scot Nadeau, Minneapolis Police Dept., MN Department of Corrections, Bloomington,MN Police Department, State of Minnesota, andColumbia Heights Police Department, Defendants.

Case No. 14-cv-4923 (SRN/TNL)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

July 27, 2015

REPORT & RECOMMENDATION

Ronald R. Ernst, 902 47th Avenue Northeast, Hilltop, MN 55421 (pro se Plaintiff);

Angela Helseth Kiese, Assistant Attorney General, Minnesota Attorney General's Office, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134 (for Defendants Close, Britzius, Rusinoff, Neilson, Moen, Murphy, MN Department of Corrections, and State of Minnesota);

Ryan M. Zipf, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103 (for Defendants Hanson, Nadeau, Bloomington, MN Police Department, and Columbia Heights Police Department); and

Brian Scott Carter, Assistant City Attorney, Minneapolis City Attorney's Office, 350 South Fifth Street, Room 210, Minneapolis, MN 55415 (for Defendants Hinchliff and Minneapolis Police Dept.).

I. INTRODUCTION

This matter comes before the Court, United States Magistrate Judge Tony N. Leung, on four motions to dismiss: Defendants Close, Britzius, Rusinoff, Neilson, Moen and Murphy's ("State Defendants") Motion to Dismiss (ECF No. 13); Defendants Nadeau and Columbia Heights Police Department's ("Columbia Heights Defendants") Motion to Dismiss (ECF No. 18); Defendant Hinchliff and Minneapolis Police Dept.'s ("Minneapolis Defendants") Motion to Dismiss (ECF No. 30); and Defendants Hanson and Bloomington, MN Police Dept.'s ("Bloomington Defendants") Motion to Dismiss (ECF No. 40). These motions have been referred to the undersigned for a report and recommendation to the district court, the Honorable Susan Richard Nelson, District Judge for the United States District Court for the District of Minnesota, under 28 U.S.C. § 636 and D. Minn. LR 72.1.

A hearing was held.² Plaintiff appeared pro se. Angela Helseth Kiese appeared on behalf of the State Defendants. Ryan Zipf appeared on behalf of the Bloomington and Columbia Heights Defendants. Brian Scott Carter appeared on behalf of the Minneapolis Defendants.

Based upon the record, memoranda, and the proceedings herein, IT IS HEREBY RECOMMENDED that Defendants Close, Britzius, Rusinoff, Neilson, Moen and Murphy's Motion to Dismiss (ECF No. 13) BE GRANTED; Defendants Nadeau and Columbia Heights Police Department's Motion to Dismiss (ECF No. 18) BEGRANTED; Defendant Hinchliff and Minneapolis Police Dept.'s Motion to Dismiss (ECF No. 30) BE GRANTED; and Defendants Hanson and Bloomington, MN Police Dept.'s Motion to Dismiss (ECF No. 40) BE GRANTED.

II. BACKGROUND³

This case concerns information distributed to communities regarding Plaintiff. Plaintiff "is required to register as a sex offender under Minn. Stat. § 243.166 (1996) because he was charged with a felony and was convicted of a gross-misdemeanor offense arising out of the same set of circumstances."⁴ Ernst v. State, No. A03-63, 2003 WL 23023992, at *1 n.1 (Minn. App. Dec. 30, 2003).

A. Prior Offenses

In 1984, Plaintiff was charged with and pleaded guilty to Criminal Attempt to Commit Sexual Assault on a Child in the State of Colorado. (Compl. at 7; Exs. at 14-15.⁵) The child was 11 years old. (Exs. at 16-17.) Plaintiff states that he "touched the abdomen of [the] child." (Compl. at 7.)

In 1997, Plaintiff was charged with "several criminal counts," including at least one charge of felony indecent exposure in state district court in Scott County, Minnesota. (Compl. at 8, 10; see Exs. at 3-9; ECF No. 1-3 at 3-4.) See Ernst, 2003 WL 23023992, at *1. According to Plaintiff, the charged offenses were a culmination of incidents.

Plaintiff states that he was renting a basement room from a woman who had two children, a 13-year-old daughter and a 15-year-old son. (Compl. at 8.) Upon returning home from being out of town, Plaintiff discovered that the lock on his bedroom door had been broken off. (Compl. at 8.) The son told Plaintiff that his mother had broken the lock "to see what she could find" and found adult magazines under Plaintiff's mattress and adult movies in Plaintiff's dresser. (Compl. at 10.) When the mother left for work, the son and a friend of his looked through the magazines and the friend watched the videos. (Compl. at 10.) Around the same time, the daughter "saw the penis of Plaintiff, even though it was not intentional." (Compl. at 9.)

Plaintiff pleaded guilty to one count of felony indecent exposure for "expos[ing] his private parts" to a minor child. (Exs. at 3; see Compl. at 9; Exs. at 23-24; ECF No. 1-3 at 4-5.) See Ernst, 2003 WL 23023992, at *1. The other charges were dismissed. (See Compl. at 9; ECF No. 1-3 at 4.) See Ernst, 2003 WL 23023992, at *1. Subsequently, it was determined that there were errors in the pre-sentence investigation and Plaintiff did not have the requisite prior conviction for felony enhancement. (Compl. at 9, 11; see Exs. at 3-9, 23-24.) As a result, the indecent-exposure offense was reduced to a gross misdemeanor. (Compl. at 9; Exs. at 23-24; ECF No. 1-3 at 4-5.) See Ernst, 2003 WL 23023992, at *1.

Before he was "releas[ed] from custody" in connection with the indecent-exposure offense, Plaintiff was given a Minnesota Department of Public Safety Bureau of Criminal Apprehension, Sex Offender Notification and Registration Form—Minnesota Statute 243.166 form to complete. (Compl. at 11; Exs. at 27.) Plaintiff "filled out the [form], dated it and signed [it]." (Compl. at 11.) Plaintiff later discovered that his "Staff social worker" had "add[ed] the dismissed charges from Scott County to show that [Plaintiff] was convict[ed] of other criminal behavior." (Compl. at 11-12.) The "Charges/Petitions" section of the form states, "(Charged @ Felony Ind. exp.) Gross Mis. Indec. Exposure." (Exs. at 27.) The "Victim Information" section of the form states that Plaintiff's victims are ages 14, 15, and 16; both male and female; and were neighborhood children. (Exs. at 27.) In the "M.O." section, the form states, "Subject exposed his penis to a 13 yr old Female, made a Sexual phone call to a 14 yr old girl and showed pornographic video's [sic] to (2) 15 yr old boys." (Exs. at 27.)

According to Plaintiff, his social worker also told him that if the felony indecent-exposure charge had been dismissed "and recharged at the gross misdemeanor level, at what [Plaintiff] was sentenced, then [Plaintiff] would not have to register." (Compl. at 12.)

"In 2001, [Plaintiff] was arrested for failure to register, after argu[ing] with the Minnesota [Bureau of Criminal Apprehension] that he did not have to register as he did not have a predatory conviction." (Compl. at 12.) Plaintiff "went to trial . . . and he was found guilty[] as he was charged with an offense that required registration." (Compl. at 12; see ECF No. 1-3 at 5-6.)

In 2002, Plaintiff was given a Level III designation by the Minnesota Department of Corrections's end-of-confinement review committee ("ECRC"). (Compl. at 13; see Exs. at 28-34.) See Minn. Stat. § 244.052, subd. 3 ("The commissioner of corrections shall establish and administer end-of-confinement review committees at each state correctional facility and at each state treatment facility where predatory offenders are confined. The committees shall assess on a case-by-case basis the public risk posed by predatory offenders who are about to be released from confinement."). Plaintiff was represented by counsel at the hearing. (Compl. at 13.)

B. Minneapolis: February 2010

In February 2010, while acting under color of law, Hinchliff "passed out a [fact sheet⁶] to the public . . . showing that Plaintiff had a conviction for sexual contact with an 11 year old female." (Compl. at 7; see Compl. at 17; Exs. at 10.) The fact sheet contains a "Description of Offense" section, stating:

This offenders [sic] victim pool are minor aged females and attempts to corrupt minor aged males. His history shows a Colorado conviction (1984) for sexual contact with an 11 year old female. He was a renter at a location where an acquaintance 13 year old female witnessed an exposing incident. Previous related charges include exposing and lewd/lascivious conduct. Must register until 02/01/2025.

(Exs. at 10.)

Plaintiff states that he "did not have any sexual contact with that 11 year old girl" and Hinchliff

maliciously stated false statements to the public against the peace and dign[i]ty of Plaintiff, thereby violating his Constitutional Right[s] in Amendment 5th, 11th, & 14th, to be free from false accusations that are untrue, depriving the plaintiff [of] a right or priv[i]lege secured by Federal Law while acting under Color of Law.

(Compl. at 7-8.) Plaintiff further states that he "has no convictions involving any minor aged males. His victim pool is not minor aged females. [He] has two convictions of minor aged females." (Compl. at 8.) Plaintiff states that, by including charges on the fact sheet that were dismissed, Hinchliff violated Plaintiff's due process rights. (Compl. at 10.)

C. Bloomington: March 2010

In March 2010, Hanson "of the Bloomington Police Department sent out [fact sheets] to the public about the presence of [Plaintiff] in[] the community." (Compl. at 10; see Exs. at 2.) The "Offense" section of this fact sheet states: "Offender exposed himself to a 13 year old female. He also made a sexual phone call to a 14 year old female. He also showed pornographic videos to (2) 15 year old boys. The offender was a neighbor to his victims." (Exs. at 2.)

Plaintiff states that the statements regarding the phone call and pornographic videos are false because those charges were dismissed. (Compl. at 9.) Plaintiff states that "Hanson is trying to tell the public that [he] is guilty of these offenses by posting these statements to the [fact...