Semler v. Klang

• Decision Date: 03 March 2009
• Docket Number: Civil No. 08-919 (JNE/RLE).
• Citation: 603 F.Supp.2d 1211
• Parties: Raymond L. SEMLER, Plaintiff, v. Eric KLANG, Rick Koop, John A. Bolduc, and Kyle Huber, Defendants.
• Court: U.S. District Court — District of Minnesota

603 F.Supp.2d 1211

Raymond L. SEMLER, Plaintiff, v. Eric KLANG, Rick Koop, John A. Bolduc, and Kyle Huber, Defendants.

Civil No. 08-919 (JNE/RLE).

United States District Court, D. Minnesota.

March 3, 2009.

COPYRIGHT MATERIAL OMITTED

Raymond L. Semler, Moose Lake, MN, pro se.

James R. Andreen, Erstad & Riemer, PA, MPLS, MN, Jason M. Hiveley, Iverson Reuvers, LLC, Bloomington, MN, for Defendants.

ORDER

JOAN N. ERICKSEN, District Judge.

This case is before the Court on a Report and Recommendation issued by the Honorable Raymond L. Erickson, Chief United States Magistrate Judge, on February 9, 2009. The magistrate judge recommended that the motion to dismiss of Rick Koop, John A. Bolduc, and Kyle Huber be granted, that Erick Klang's motion to dismiss be granted, and that Plaintiff's motion for default judgment against Klang be denied.¹ Plaintiff filed objections. The Court has conducted a de novo review of the record. See D. Minn. LR 72.2(b). Based on that review, the Court adopts the Report and Recommendation. Therefore, IT IS ORDERED THAT:

1. Koop, Bolduc, and Huber's Motion to Dismiss [Docket No. 14] is GRANTED.

2. Klang's Motion to Dismiss [Docket No. 21] is GRANTED.

3. Plaintiff's Motion for Default Judgment [Docket No. 29] is DENIED.

4. Plaintiff's Complaint [Docket No. 1] is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION

RAYMOND L. ERICKSON, United States Chief Magistrate Judge.

Raymond L. Semler, Plaintiff,

vs.

Eric Klang,¹ Rick Koop, John A. Bolduc, and Kyle Huber, Defendants.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(B), upon the Defendants' Motions to Dismiss, and the Plaintiff's Motion for Default Judgment. For these purposes, the Plaintiff Raymond L. Semler appears pro se; the Defendants John A. Bolduc ("Bolduc"), Kyle Huber ("Huber"), and Rick Koop ("Koop") (collectively, the "City Defendants"), appear by Jason M. Hiveley, Esq.; and the Defendant Erick Klang ("Klang") appears by James R. Andreen, Esq. For reasons which follow, we recommend that the Defendants' Motions to Dismiss be granted, and that the Plaintiffs Motion for Default Judgment be denied.

II. Factual and Procedural Background

The Plaintiff is a patient in the Minnesota Sex Offender Program ("MSOP"), in Moose Lake, Minnesota. See, Complaint, Docket No. 1, at p. 2 ¶ 1. He has been civilly committed as a Sexually Dangerous Person, for an indeterminate term, pursuant to Minnesota Statutes Section 253B.185. See, In the Matter of the Civil Commitment of Raymond Leon Semler ("In re Semler"), 2007 WL 969081 (Minn. App., April 3, 2007), rev. denied (Minn., May 30, 2007). In affirming the Plaintiffs civil commitment, the Minnesota Court of Appeals detailed the Plaintiffs sexual misconduct, which included a long history of stalking, harassing, and molesting, five (5) female victims, beginning when he was only eight (8) years old. Id. at *2. In 1989, when the Plaintiff was thirteen (13) years old, he grabbed a fourteen (14) year old girl, who was walking home from school, and dragged her toward a nearby vacant house. Id. The victim was able to escape, and no charges were filed. Id. Several years later, another female victim informed the police that the Plaintiff had been stalking and harassing her, and the Plaintiff was warned to leave the victim alone. Id.

In 1993, at the age of seventeen (17), the Plaintiff kidnapped and forcibly raped a seventeen (17) year old pregnant girl. Id. The Plaintiff was charged with third-degree criminal sexual conduct, but he was not convicted, "[d]ue to a mistrial after jeopardy attached." Id. In 1996, when the Plaintiff was twenty (20) years old, he approached a woman who was riding a bicycle, and "grabbed her breast and buttocks." Id. at *3. The victim was able to escape with the help of a passerby and, as a result of this incident, the Plaintiff was subsequently convicted, in 1997, of fourthdegree criminal sexual conduct, and kidnapping (the "1997 convictions"). Id.; see also, State v. Semler, 2008 WL 73235 at *1 (Minn.App., January 8, 2008). The Plaintiff was sentenced to forty-two (42) months in prison, but the execution of his sentence was stayed, and he was placed on fifty (50) years of supervised probation, which required him to abstain from alcohol, and to complete sex offender treatment. Id.; State v. Semler, supra at *1.

Within the first three (3) years of the Plaintiffs probation, he admits that he was "convicted of two (2) Driving While Intoxicated [offenses] * * * and 6-Driving After Revocation [offenses]." Complaint, supra at p. 5. As a result of the Plaintiffs second conviction for Driving While Intoxicated, his probation was revoked, and he was ordered to serve the forty-two (42) month sentence, which had been imposed for his 1997 convictions. Id. On January 5, 2001, the Plaintiff began serving his sentence in State prison. Id.; see also, State v. Semler, supra at *1.

Shortly before the Plaintiff was scheduled to be released from prison, the Minnesota Department of Corrections ("DOC") convened an End of Confinement Review Committee ("ECRC"), in order to determine whether the Plaintiff should be identified as a sex offender under Minnesota law, and if so, which "risk level" he should be assigned.² See, Semler v Klang, 743 N.W.2d 273, 275 (Minn.App. 2007), rev. denied (Minn., Feb. 19, 2008). In his Complaint, the Plaintiff alleges that the ECRC considered certain information, which was furnished by Koop, who the Plaintiff identifies as the "Chief Investigator" for the Crosby Police Department. See, Complaint, supra at p. 9 and Exhibit 1. Koop allegedly informed the ECRC that the Plaintiff had been the subject of three (3) criminal investigations, although only one (1) of those investigations resulted in a conviction—namely, the Plaintiffs 1997 convictions for fourth-degree criminal sexual conduct, and for kidnaping. Id.

On December 31, 2001, the Plaintiff was granted a conditional release from prison, and he moved into his parents' home in Deerwood, Minnesota, which is located in Crow Wing County. Id. at p. 5. Approximately one (1) week later, on January 7, 2002, Klang, who was the Crow Wing County Sheriff, allegedly distributed a Notification of Release, pursuant to Minnesota Statutes Section 244.052, in order to notify the public that a Level II sex offender had been released into the community. Id. at p. 8 ¶ 1 and Exhibit 1A.³ The Notification of Release described the Plaintiff as follows:

[The Plaintiff] has a history of forced sexual contact with females (ranging in age from 14-adult). The contact includes fondling and penetration. The offender uses physical force to gain compliance. The offender was unknown to the victims.

Id.

In August of 2002, the Plaintiff violated the terms of his conditional release, and he was reincarcerated. Id. at p. 5. The Plaintiff was subsequently released from prison but, in February of 2003, he returned to prison, after once again violating the terms of his conditional release. Id. In June of 2003, the Plaintiff was again released from prison, and he moved into a friend's residence in Crow Wing County. Id. at p. 6. At that time, Klang distributed another Notification of Release, which included the same description of the Plaintiff. Id. at pp. 6, 8 and Exhibits 9, 11.

Subsequently, the Plaintiff moved to a motel in Brainerd, Minnesota, and on July 1, 2003, Bolduc, who was the Brainerd Chief of Police, distributed a Notification of Release, which included the same description of the Plaintiff. Id. at pp. 3, 9 and Exhibits 2-3. By August of 2003, the Plaintiff had moved again, this time to Staples, Minnesota, and on August 23, 2003, Huber, who was the Staples Chief of Police, distributed a Notification of Release, which included the same description of the Plaintiff. Id. at pp. 3, 9 and Exhibit 13.

On May 1, 2004, the Plaintiff was arrested, which resulted in another revocation of his conditional release. Id. at p. 6. Before his release from prison, another ECRC was convened, which, on January 25, 2005, re-classified the Plaintiff as a Level III sex offender. Id. Accordingly, in April of 2005, the State of Minnesota petitioned for the Plaintiff's civil commitment, as a Sexual Psychopathic Personality, and as a Sexually Dangerous Person. Id.; see, Minnesota Statutes Section 253B.185. In May of 2005, the Plaintiff was transferred to the State hospital in St. Peter, Minnesota, and ultimately, on September 26, 2006, the Plaintiff was civilly committed to the MSOP for an indeterminate term, by a State Court. Id. On April 3, 2007, the Minnesota Court of Appeals affirmed the Plaintiffs civil commitment, and on May 30, 2007, the Minnesota Supreme Court denied his petition for review. Id.; see also, In re Semler, supra.

In November of 2005, while his civil commitment proceedings remained pending, the Plaintiff commenced a civil action in Crow Wing County District Court (the "State Court action"), against Bolduc, Huber, Koop, and Klang—the same four (4) Defendants who are named in this action. See, Complaint, supra at p. 10; see also, Affidavit of Jason M. Hiveley ("Hiveley Aff."), Docket No. 16, Exhibit A ("State Court Complaint"). In his State Court Complaint, the Plaintiff alleged claims for slander and defamation, against Koop, for "sending incorrect, erroneous and false statements" to the ECRC, and against Bolduc, Huber, and Klang, for "putting incorrect, erroneous and false statements" on the Notifications of Release. See, State Court Complaint, supra at pp. 2-3. Specifically, the Plaintiff alleged that the Notifications of Release, as we have quoted them, falsely implied that he had actually been convicted of sex offenses on multiple occasions, even though he had only been convicted for one (1) incident. Id. He further alleged that the Notifications...