Amended Report & Recommendation — Kyle-William Brenizer et al. v. The County of Sherburne et al., No. 21-cv-1301 (DSD/TNL) (Dkt. 31, D. Minn.)

Summary

Magistrate Judge Tony N. Leung of the District of Minnesota issued this Amended Report & Recommendation on February 1, 2022 in Brenizer et al. v. County of Sherburne et al., Case No. 21-cv-1301 (DSD/TNL), correcting a typographical error in the year, changing “2000” to “2020”. Plaintiffs confined at the Sherburne County Jail since March 19, 2020 allege that restrictions on out-of-cell exercise and unsanitary cell conditions violated their rights, and that they suffered muscle atrophy and weight gain. On the defendants’ Amended Motion to Dismiss (ECF No. 16), it recommends dismissing Counts 1, 2 and 4 and all individual defendants without prejudice, and dismissing any request for punitive damages against the County with prejudice. The Monell claim in Count 3 against the County over its out-of-cell exercise policies would remain, and the rest of the motion would be denied.

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CASE 0:21-cv-01301-DSD-TNL Doc. 31 Filed 02/01/22 Page 1 of 36

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Kyle-William Brenizer; Travis R. Fairbanks; Case No. 21-cv-1301 (DSD/TNL)
Johnnie L. Haynes; Montez T. Lee; and All
Inmates of the Sherburne County Jail,

Plaintiffs,

v. AMENDED 1 REPORT &
RECOMMENDATION
The County of Sherburne; Joel Brott, Sherburne
County Sheriff, in his individual and official
capacities; Donald Starry, Sherburne County Chief
Deputy Sheriff, in his individual and official
capacities; Pat Carr, Sherburne County Jail
Commander, in his individual and official
capacities; Brian Frank, Sherburne County Jail
Administrator, in his individual and official
capacities; Dave Isias, Assistant Sherburne County
Jail Administrator, in his individual and official
capacities; Chris Bloom, Sherburne County Jail
Captain, in his individual and official capacities;
Tom Zerwas, Sherburne County Jail Captain, in his
individual and official capacities; Steve Doran,
Sherburne County Chief Deputy, in his individual
and official capacities; and Mark Fritel, Sherburne
County Jail Programs Coordinator, in his
individual and official capacities,

Defendants.

Nicholas Ratkowski, Contreras & Metelska, P.A., 200 University Avenue West, Suite
200, St. Paul, MN 55103 (for Plaintiffs); and

Aaron Mark Bostrom and Stephanie A. Angolkar, Iverson Reuvers, 9321 Ensign
Avenue South, Bloomington, MN 55438 (for Defendants).

1
The Court issues this Amended Report & Recommendation to correct an inadvertent typographical error made
regarding the year certain relevant events took place, namely, changing “2000” to “2020.” See ECF No. 30 at 3, 14,
25 n.5. In all other respects, the Amended Report & Recommendation is the same.
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I. INTRODUCTION

This matter is before the Court, United States Magistrate Judge Tony N. Leung, on

Defendants’ Amended Motion to Dismiss, ECF No. 16. This motion has been referred to

the undersigned for a report and recommendation to the district court, the Honorable David

S. Doty, District Judge of 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. ECF No. 29. Nicholas Ratkowski appeared on behalf of

Plaintiffs. Stephanie A. Angolkar and Aaron Mark Bostrom appeared on behalf of

Defendants.

II. AMENDED COMPLAINT

Plaintiffs Kyle-William Brenizer, Travis R. Fairbanks, Johnnie L. Haynes, Montez

T. Lee, and the unnamed Inmates of the Sherburne County Jail (collectively, “Plaintiffs”)

are or were confined at the Sherburne County Jail (“the Jail”), located in Sherburne County,

Minnesota, between March 19, 2020 and the present. Am. Compl. ¶¶ 1-2, 11-15, 105-09,

ECF No. 15.

Defendant County of Sherburne (“the County”) “is a local government unit” that

“has implemented, executed, and adopted” certain “policies, practices, acts, and omissions”

with respect to the Jail. Am. Compl. ¶ 17. Defendants Joel Brott, Donald Starry, Pat Carr,

Brian Frank, Dave Isias, Chris Bloom, Steve Doran, and Mark Fritel are/were employed

by the County in various roles and “collectively responsible for the operation and

administration of the Jail and the care, custody, and treatment of all persons confined at the

Jail.” Am. Compl. ¶¶ 18-26; see also Am. Compl. ¶ 47.
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A. Jail Cells & Gyms

The Jail is a facility in which individuals “awaiting trial or who have been sentenced

to serve time for various criminal or civil offenses” are confined. Am. Compl. ¶ 42; see

Am. Compl. ¶ 43. Plaintiffs are housed “in cells that have a 4-foot by 6-foot useable

space.” Am. Compl. ¶ 44. As alleged in the Amended Complaint, “[w]ithin this small

space, each cell has an institutional sink, toilet, desk, and bunk beds.” Am. Compl. ¶ 44.

“The Jail has five designated exercise areas referred to as gyms.” Am. Compl. ¶ 46.

“One of these gyms is designated or reserved for [Jail staff].” Am. Compl. ¶ 46.

B. Exercise Time

The Jail’s inmate handbook prohibits exercising “in the housing unit day room.”

Am. Compl. ¶ 55.

1. Restrictions Imposed

Beginning on March 19, 2020, 2 and continuing through July 6, 2021, “Defendants”

prohibited Plaintiffs from using the gyms for exercise, thereby taking away Plaintiffs’ out-

of-cell exercise time. Am. Compl. ¶¶ 47-49. During this time, “Plaintiffs were not allowed

to exercise anywhere but in their cells.” Am. Compl. ¶ 53; see also Am. Compl. ¶ 56. In

particular, Plaintiffs allege Defendants confined Plaintiffs to their cells for 23 hours a day,

seven days a week, between November 4 and 26, 2020. Am. Compl. ¶ 97. Plaintiffs were

2
See supra n.1. The Court takes judicial notice that, on March 13, 2020, the President of the United States declared
a national emergency in response to COVID-19. Declaring a National Emergency Concerning the Novel
Coronavirus Disease (COVID-19) Outbreak, 85 Fed. Reg. 15,337 (Mar. 13, 2020). This national emergency was
continued on February 24, 2021. Continuance of the National Emergency Concerning the Coronavirus Disease
2019 (COVID-19) Pandemic, 86 Fed. Reg. 11,599 (Feb. 24, 2021).
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again confined to their cells for 23 hours a day, seven days a week, between March 8 and

26, 2021. Am. Compl. ¶ 99.

Beginning July 6, 2021, the gyms were made available two days per week for two

hours per unit. 3 Am. Compl. ¶¶ 51-52. This schedule resulted in Plaintiffs being “allowed

no more than one hour of exercise per [gym] day” for a maximum of two hours of out-of-

cell exercise time per week. Am. Compl. ¶¶ 52, 54, 57.

At all times relevant, exercising in the day room was not permitted. Am. Compl.

¶¶ 56-57. Walking, however, was permitted. Am. Compl. ¶ 73. At all times relevant, Jail

staff were permitted to use their designated gym. Am. Compl. ¶ 59. Plaintiffs allege they

have “suffered from muscle atrophy as a direct or proximate result of their inability to

physically exercise in a constitutionally adequate manner.” Am. Compl. ¶ 91. They further

allege they “have suffered from weight gain, mental and emotional stress, muscle atrophy

[sic], and/or body aches and pains as a direct result of their inability to physically exercise

in a constitutionally adequate manner.” Am. Compl. ¶ 92.

Plaintiffs allege “Defendants have been using Covid-19 as an excuse to not allow”

access to the gyms, “stating that ‘the close contact between inmates may spread the virus.’”

Am. Compl. ¶ 64. “Plaintiffs allege that Defendants’ reliance on Covid-19 is a pretextual

justification” for the restrictions imposed on out-of-cell exercise time. Am. Compl. ¶ 65.

According to Plaintiffs, prisoners “are allowed to interact with one another in close contact

3
Defendants’ memorandum, attached declaration, and exhibits suggest that the Jail’s gyms may now have greater
availability. See, e.g., Defs.’ Mem. in Supp. at 5, 25-26, ECF No. 20. For purposes of determining whether
Plaintiffs have stated a claim, the Court has confined itself to the allegations in the Amended Complaint. See infra
Section III.B.
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in the day space areas of the units,” and, “at least before July 6, 2021, some or all of the

[gyms] were converted to movie rooms.” Am. Compl. ¶ 66. Jail staff were also allowed

to congregate in their designated gym. Am. Compl. ¶ 72. Because of the close contact

“permitted, and often forced, . . . in the day space areas, gyms converted to movie rooms,

and the[] cells” between prisoners, Plaintiffs allege that “the Jail’s stated concern with close

contact in areas designated for exercise is pretextual and insincere.” Am. Compl. ¶ 67.

Plaintiffs allege that “Defendants have refused to provide [them] with any constitutionally

adequate opportunities or facilities for exercise out of the[ir] cells and have failed to

develop an action plan to address and mitigate this deprivation of [their] basic human need

for physical exercise.” Am. Compl. ¶ 103.

2. Grievances

“Plaintiffs have expressed concern on multiple occasions, writing grievances and

kites in an attempt to address” the limitations on out-of-cell exercise time. Am. Compl.

¶ 62. “Since March 19, 2020, several inmates have complained or filed grievances about

myriad mental and physical health problems, many of which are a direct or proximate

consequence of Defendants’ decision to deprive Plaintiffs of their time and ability to

physically exercise outside of their cells.” Am. Compl. ¶ 63.

On or about the end of February 2021, Brenizer wrote a grievance regarding the

lack of out-of-cell exercise time. Am. Compl. ¶ 70. “Defendants” responded “[t]he

Minnesota Department of Health instructed correctional facilities to avoid congregated

recreational time for the safety of the inmates and staff.” Am. Compl. ¶ 71.

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Approximately one month later, Brenizer submitted a kite asking “Defendants why

the restriction placed on [out-of-cell] exercise time had not been addressed or lifted in over

a year.” Am. Compl. ¶ 68. Brenizer was told “precaution measures are in place to ensure

all inmates[’] health and safety through covid-19” and an “[i]n cell workout plan [was]

available upon request.” Am. Compl. ¶ 69.

In mid-April, “Fairbanks wrote a grievance about the restriction of exercising

outside of his cell.” Am. Compl. ¶ 78. A sergeant responded that Fairbanks would “not

be allowed to exercise outside of [his] cell.” Am. Compl. ¶ 79.

C. Cell Conditions

Plaintiffs allege “Black Mold grows in the vents and around the air ducts and shafts”

of the air exchange ventilation system for the Jail’s cells. Am. Compl. ¶ 60.

In early May 2021, Lee submitted a grievance stating “that black mold was growing

in the air ventilation duct in his cell, and that there was food, urine, and fecal matter on the

floors.” Am. Compl. ¶ 80. At the time, Lee was in “a segregation cell for confinement.”

Am. Compl. ¶ 80. Lee spent “several days in segregation” before being transferred to

another unit. Am. Compl. ¶ 81.

Plaintiffs allege that “[p]rolonged exposure to Black Mold is known to have

disastrous health consequences that can include but are not limited to nausea, vomiting,

and bleeding in the lungs and nose.” Am. Compl. ¶ 86. Plaintiffs allege that “Defendants

have actual or constructive knowledge that they are exposing Plaintiffs to Black Mold” and

of the risks of such exposure. Am. Compl. ¶¶ 87-88.

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D. Claims

Plaintiffs allege “Defendants’ conditions or treatment of Plaintiffs are so inherently

severe as to transcend elemental concepts of decency.” Am. Compl. ¶ 85. They further

allege that “Defendants’ treatment of Plaintiffs is degrading to human dignity, involves

deprivations of basic human needs and severe health concerns by prohibiting Plaintiffs

from adequate exercise, and subjects [them] to unsanitary conditions by placing inmates

into cells that have Black Mold growing in the ventilation ducts.” Am. Compl. ¶ 85; see

also Am. Compl. ¶ 93. Plaintiffs allege that, “[a]s a result of the policies, practices, acts,

and omissions of Defendants, . . . [their] confinement in the Jail is unconstitutionally

dangerous, punitive, and unlawful.” Am. Compl. ¶ 104.

Plaintiffs bring four counts against Defendants for violations of their civil rights

under 42 U.S.C. § 1983. In Counts 1 and 2, Plaintiffs allege the out-of-cell exercise time

and unsanitary cell conditions violate their constitutional rights under the Eighth and

Fourteenth Amendments. Am. Compl. ¶¶ 116-27. In Count 3, Plaintiffs allege, under

Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), that

the out-of-cell exercise policies—both the no out-of-cell exercise policy between March

2020 and July 2021 and the two-hours-per-week exercise policy beginning July 2021—

were adopted by various County officials, including some of Defendants, with “deliberate

and/or conscious . . . disregard [of] the known risk of harm that would result from depriving

Plaintiffs of the right to engage in the minimum amount of physical exercise protected by

the Constitution,” and such policies were the moving force behind the deprivation of a

constitutionally adequate amount of physical exercise time. Am. Compl. ¶¶ 128-46. In
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Count 4, Plaintiffs allege, under City of Canton v. Harris, 489 U.S. 378 (1989), that the

County failed to properly train “Defendant correctional facilities officers,” “other officers,”

and Jail staff regarding constitutionally adequate amounts of exercise and “the physical,

mental, and emotional harms” accompanying the denial of such exercise, and the County

was aware of the need for more and different training regarding constitutionally adequate

amounts of exercise. Am. Compl. ¶¶ 147-57.

Plaintiffs seek class certification and declaratory, monetary, and injunctive relief,

including punitive damages. Am. Compl. ¶ 158.

III. AMENDED MOTION TO DISMISS

Defendants have moved to dismiss the Amended Complaint under Federal Rule of

Civil Procedure 12(b)(6).

A. Legal Standard

“To withstand a Rule 12(b)(6) motion, a complaint must contain sufficient factual

allegations to ‘state a claim to relief that is plausible on its face.’” Smithrud v. City of St.

Paul, 746 F.3d 391, 397 (8th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

547 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550

U.S. at 556). “[A]lthough a complaint need not contain ‘detailed factual allegations,’ it

must contain facts with enough specificity ‘to raise a right to relief above the speculative

level.’” United States ex rel. Raynor v. Nat’l Rural Utils. Coop. Fin., Corp., 690 F.3d 951,

955 (8th Cir. 2012) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels
8
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and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not

do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Similarly, “[t]hreadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do

not suffice.” Id. In deciding a motion to dismiss under Rule 12(b)(6), a court “assume[s]

the truth of all factual allegations in the complaint and make[s] all reasonable inferences in

favor of the nonmoving party.” Delker v. MasterCard Int’l, Inc., 21 F.4th 1019, 1024 (8th

Cir. 2022).

B. Matters Outside the Amended Complaint

Attached to Defendants’ motion to dismiss was the Declaration of Brian Frank, the

Jail Administrator, and the following exhibits: (1) the Minnesota Department of Health’s

Interim Guidance for Correctional Settings Based on Community Facility Transmission

Levels of COVID-19; (2) the Jail’s COVID-19 Response Plan 5-20-21; (3) the Jail’s

COVID-19 Response Plan 7-19-21; (4) the Jail’s COVID-19 Response Plan 8-26-21; (5)

the Jail’s current Recreational Policy; (6) the Jail’s 3-30-21 COVID Response Plan; (7) the

Jail’s 4-15-20 COVID Response Plan; (8) an update published by the Centers for Disease

Control and Prevention (“CDC”) on the Delta variant of COVID-19, entitled “Delta

Variant: What We Know About the Science”; and (9) “Interim Guidance on Management

of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities”

published by the CDC. ECF Nos. 21, 21-1 through 219.

Collectively, the Frank Declaration and the exhibits relate to Plaintiffs’ claims

regarding the restriction of their out-of-cell exercise time. The parties agree that Exhibit

1, the Minnesota Department of Health’s Interim Guidance for Correctional Settings Based
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on Community Facility Transmission Levels of COVID-19, ECF No. 22-1, is a public

record that may be considered by the Court without converting Defendants’ motion into

one for summary judgment. Defs.’ Mem. in Supp. at 7 n.2; Pls.’ Mem. in Opp’n at 6-7,

ECF No. 24; Defs.’ Reply at 3, ECF No. 28. The parties hotly contest whether the Frank

Declaration and the remaining exhibits may be considered.

Courts “generally may not consider materials outside the pleadings when deciding

a motion to dismiss for failure to state a claim or for judgment on the pleadings.”

Greenman v. Jessen, 787 F.3d 882, 887 (8th Cir. 2015) (citing Porous Media Corp. v. Pall

Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)). “Most courts view matters outside the

pleading as including any written or oral evidence in support of or in opposition to the

pleading that provides some substantiation for and does not merely reiterate what is said in

the pleadings.” BJC Health Sys. v. Columbia Cas. Co., 348 F.3d 685, 687 (8th Cir. 2003)

(quotation omitted). A court, “may, however, consider some materials that are part of the

public record or do not contradict the complaint, as well as materials that are necessarily

embraced by the pleadings.” Id. (citing Porous Media, 186 F.3d at 1079). Thus, a court

“may consider the pleadings themselves, materials embraced by the pleadings, exhibits

attached to the pleadings, and matters of public record.” Mills v. City of Grand Forks, 614

F.3d 495, 498 (8th Cir. 2010) (citing Porous Media, 186 F.3d at 1079); see also Miller v.

Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 & n.3 (8th Cir. 2012). “Documents

necessarily embraced by the pleadings include ‘documents whose contents are alleged in a

complaint and whose authenticity no party questions, but which are not physically attached

to the pleading.’” Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012)
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(quoting Kushner v. Beverly Enters., Inc., 317 F.3d 820, 831 (8th Cir. 2003)). When

evaluating a Rule 12(b)(6) motion, “the court has complete discretion to determine whether

or not to accept any material beyond the pleadings.” Stahl v. United States Dep't of Agric.,

327 F.3d 697, 701 (8th Cir. 2003) (quotation and citations omitted).

The Court will exercise its discretion not to consider the Frank Declaration or any

of the exhibits attached thereto, including Exhibit 1. The main thrust of Plaintiffs’ out-of-

cell exercise claims is that Defendants demonstrated deliberate indifference in the

restriction of their out-of-cell exercise time. The Frank Declaration proffers additional

facts and justifications as to the adoption of the out-of-cell exercise policies and why

Plaintiffs’ out-of-cell exercise time may have been restricted during the relevant periods.

As Defendants themselves state, the Frank Declaration “explains why Plaintiffs were

locked down during the dates listed in the Amended Complaint.” Defs.’ Reply at 3.

Similarly, Plaintiffs have alleged that “Defendants have refused to develop an action plan

to mitigate the deprivation” of the out-of-cell exercise time. Am. Compl. ¶ 62. Defendants

proffer the Frank Declaration and the Jail’s COVID-19 plans as evidence “the Jail provided

other recreational opportunities.” Defs.’ Mem. in Supp. at 5.

In the end, it may be that the restriction of Plaintiffs’ out-of-cell exercise time

during the periods of issue was wholly justified. But, the inquiry on a motion to dismiss is

plausibility, not probability. See Twombly, 550 U.S. at 556; Nelson Auto Center, Inc. v.

Multimedia Holdings Corp., 951 F.3d 952, 958 (8th Cir. 2020); see also Delker, 21 F.4th

at 1024 (“The key issue is threshold plausibility, to determine whether a plaintiff is entitled

to present evidence in support of his claim and not whether it is likely that he will ultimately
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prevail.”). “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that

actual proof of [the facts alleged] is improbable, and that a recovery is very remote and

unlikely.” Twombly, 550 U.S. at 556 (quotation omitted); see Delker, 21 F.4th at 1024.

Accordingly, for purposes of the instant motion, the Court confines itself to allegations of

the Amended Complaint.

C. Applicable Constitutional Authority

“Section 1983 creates a species of tort liability for the deprivation of any rights,

privileges, or immunities secured by the Constitution.” Manuel v. City of Joliet, 137 S. Ct.

911, 916 (2017) (quotations and citations omitted). “To state a claim under 42 U.S.C.

§ 1983, a plaintiff must show that he was deprived of a right secured by the Constitution

and the laws of the United States and that the deprivation was committed by a person acting

under color of state law.” Alexander v. Hedback, 718 F.3d 762, 765 (8th Cir. 2013); see

42 U.S.C. § 1983.

Plaintiffs’ out-of-cell exercise and unsanitary-conditions claims all concern the

conditions of their confinement. The applicable constitutional authority for a conditions-

of-confinement claim depends on whether the individual is a pretrial detainee or a

convicted inmate. See Stearns v. Inmate Servs. Corp., 957 F.3d 902, 906 (8th Cir. 2020);

see also Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). For convicted inmates, “[t]he

Eighth Amendment’s prohibition against cruel and unusual punishment imposes duties on

prison officials, who must provide humane conditions of confinement . . . .” Shipp v.

Murphy, 9 F.4th 694, 703 (8th Cir. 2021) (quotation omitted); see also Farmer v. Brennan,

511 U.S. 825, 832 (1994); see, e.g., Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011).
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“The Constitution affords greater protection to a pretrial detainee compared to a convicted

inmate in a sense that ‘[d]ue process requires that a pretrial detainee not be punished.’”

Walton v. Dawson, 752 F.3d 1109, 1117 (8th Cir. 2014) (alteration in original) (quoting

Bell, 441 U.S. at 535 n.16). Accordingly, pretrial detainees may not “be punished without

running afoul of the Fourteenth Amendment.” Karsjens v. Lourey, 988 F.3d 1047, 1052

(8th Cir.), cert. denied, 142 S. Ct. 232 (2021). “[T]his prohibition against punishment

encompasses conditions of confinement.” Id. Plaintiffs’ claims encompass individuals

subject to pretrial detention as well as individuals subject to incarceration.

D. Out-of-Cell Exercise Time

“[L]ack of exercise may be a constitutional violation if one’s muscles are allowed

to atrophy or if an inmate’s health is threatened.” Wishon v. Gammon, 678 F.2d 446, 449

(8th Cir. 1992); see also Wilson v. Seiter, 501 U.S. 294, 304-05 (1991) (including exercise

as example of “a single, identifiable human need”). “In considering an alleged deprivation

of adequate exercise, courts must consider several factors, including: (1) the opportunity

to be out of the cell; (2) the availability of recreation within the cell; (3) the size of the cell;

and (4) the duration of the confinement.” Wishon, 678 F.2d at 449. The Eighth Circuit

Court of Appeals has stated that an “inmate that is confined to his cell for more than sixteen

hours per day should ordinarily be given the opportunity to exercise for at least one hour

per day outside the cell.” Campbell v. Cauthron, 623 F.3d 503, 507 (8th Cir. 1980)

(footnote omitted). And, in Phillip v. Norris, the Eighth Circuit observed that the denial of

exercise privileges for 37 days “is perhaps pushing the outer limits of acceptable

restriction.” 320 F.3d 844, 847 (8th Cir. 2003).
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Plaintiffs allege that they are confined in cells with 24 square feet of “useable

space,” within which “each cell has an institutional sink, toilet, desk, and bunk beds.” Am.

Compl. ¶ 44. Plaintiffs allege they have been prohibited from accessing the gyms for

exercise between March 19, 2020 4 and July 6, 2021. In particular, between November 4

and 26, 2020 (22 days) and March 8 and 26, 2021 (18 days), Plaintiffs were confined to

their cells for 23 hours per day. Plaintiffs were not permitted to exercise in the day room,

and only allowed to exercise in their cells. Beginning on July 6, 2021, the gyms were made

available on a schedule permitting one hour of exercise per each of two gym days, resulting

in a maximum of two hours of out-of-cell exercise time per week. Plaintiffs allege they

have suffered muscle atrophy, weight gain, mental and emotional distress, and body aches

and pains as a result of the limitations on their out-of-cell exercise time.

Defendants acknowledge that, “[i]n isolation, the [Wishon] factors present a close

call.” Defs.’ Mem. in Supp. at 12. Defendants assert, however, that Plaintiffs have not

sufficiently alleged deliberate indifference to their out-of-cell exercise time in light of the

COVID-19 pandemic. Plaintiffs have sued Defendants in their individual and official

capacities related to their out-of-cell exercise time as well as brought claims under Monell

and City of Canton. The Court considers each in turn

1. Defendants in Their Individual Capacities

“To state a claim under § 1983, ‘a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.’”

4
See supra n.1.
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Reynolds v. Dormire, 636 F.3d 976, 979 (8th Cir. 2011) (quoting Iqbal, 556 U.S. at 676).

“A prison official is deliberately indifferent if he ‘knows of and disregards’ a substantial

risk of serious harm to an inmate.” Id. (quoting Farmer, 511 U.S. at 837). To successfully

state a claim for deliberate indifference, Plaintiffs “must show [Defendants] acted with a

‘sufficiently culpable state of mind.’” Kulkay v. Roy, 847 F.3d 637, 643 (8th Cir. 2017)

(quoting Farmer, 511 U.S. at 834). “[M]ere negligence or inadvertence does not rise to

the level of deliberate indifference.” Id.; see also Farmer, 511 U.S. at 835. It “requires

more than ordinary lack of due care for the prisoner’s interests or safety.” Farmer, 511

U.S. at 835; accord Letterman v. Does, 789 F.3d 856, 862 (8th Cir. 2015). “The test is

akin to the criminal rule of ‘recklessness.’” Letterman, 789 F.3d at 862; accord Blair v.

Bowersox, 929 F.3d 981, 987 (8th Cir. 2019); see also Farmer, 511 U.S. at 836, 839-40.

“A necessary element of deliberate indifference is that the defendant officials had actual

knowledge of the substantial risk posed to an inmate’s health and safety.” Kulkay, 847

F.3d at 644. For individual defendants, “constructive knowledge, or the should-have-

known standard is not sufficient to support a finding of deliberate indifference.” Blair, 929

F.3d at 987 (quotation omitted); see Farmer, 511 U.S. at 837-38, 843 n.8.

Plaintiffs have not alleged sufficient facts that any of Defendants individually acted

with a sufficiently culpable state of mind. Plaintiffs generally allege that each Defendant

is “responsible for the operations and administration of the Jail and the care, custody, and

treatment of all persons confined in the Jail.” Am. Compl. ¶¶ 18-26. Plaintiffs allege that

they “have expressed concern on multiple occasions, writing grievances and kites in an

attempt to address” the limitation on out-of-cell exercise. Am. Compl. ¶ 61; see also Am.
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Compl. ¶¶ 68, 70. But, Plaintiffs do not identify which Defendants their out-of-cell

exercise complaints were directed to, which Defendants they interacted with regarding

these complaints, or which Defendants were involved in responding to their complaints.

The only individual identified as having been involved in responding to Plaintiffs’ out-of-

cell exercise complaints is not a defendant in this action. See Am. Compl. ¶ 79 (“Plaintiff

Fairbanks received a response from Nicholas Eckstrom, a Sergeant at the [Jail], stating:

‘You will not be allowed to exercise out of your cell.’”). Even accepting Plaintiffs’

allegations as true and construing them in Plaintiffs’ favor, Plaintiffs have failed to plead

facts showing that these Defendants had actual knowledge of a substantial risk of serious

harm posed to Plaintiffs’ health and safety by restricting their out-of-cell exercise time and

willfully overlooked that danger. See East v. Minnehaha Cty., 986 F.3d 816, 820 (8th Cir.

2021); Kulkay, 847 F.3d at 644.

Accordingly, the Court recommends that the out-of-cell exercise claims in Counts

1 and 2 against Defendants in their individual capacities be dismissed without prejudice. 5

2. County

Plaintiffs have also sued Defendants, who are County employees, in their official

capacities as well as the County itself.

5
Because the Court recommends that the claims against Defendants in their individual capacities be dismissed, the
Court need not address the qualified-immunity arguments raised in the alternative. See Parrish v. Ball, 594 F.3d
993, 1001 (8th Cir. 2010) (“Qualified immunity shields government officials from liability in their individual
capacity so long as the official has not violated ‘clearly established statutory or constitutional rights of which a
reasonable person would have known.’” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

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a. Defendants in Their Official Capacities

“A suit against a public official in his official capacity is actually a suit against the

entity for which the official is an agent.” Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th

Cir. 2006) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)); accord Parrish, 594

F.3d at 997; see also Monell, 436 U.S. at 690 n.55. Thus, Plaintiffs’ claims against

Defendants in their official capacities are essentially claims against the County. See Thiel

v. Korte, 954 F.3d 1125, 1129 (8th Cir. 2020) (“The official-capacity claim against Korte

is essentially a claim against the county itself.”). Because Plaintiffs have also sued the

County directly, the Court recommends that all claims against Defendants in their official

capacities be dismissed without prejudice as redundant of Plaintiffs’ claims against the

County. See King v. City of Crestwood, 899 F.3d 643, 650 (8th Cir. 2018); Veatch v.

Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010); cf. Gurman v. Metro Hous.

& Redevelopment Auth., 842 F. Supp. 2d 1151, 1153 (D. Minn. 2011) (noting repeated

criticism of “the filing of ‘kitchen-sink’ or ‘shotgun’ complaints—complaints in which a

plaintiff brings every conceivable claim against every conceivable defendant”).

b. Municipal Claims

As to the County, “[§] 1983 liability for a constitutional violation may result from

(1) an official municipal policy; (2) an unofficial custom; or (3) a deliberately indifferent

failure to train or supervise.” Atkinson v. City of Mountain View, 709 F3d 1201, 1214 (8th

Cir. 2013) (quotations and citations omitted); accord Bolderson v. City of Wentzville, 840

F.3d 982, 985 (8th Cir. 2016); see also Monell, 658 U.S. at 691, 694; City of Canton, 489

U.S. at 387-389.
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i. Monell: Out-of-Cell Exercise Policies

Policy or Custom. The terms “policy” and “custom” are not used “interchangeably

when conducting a Monell analysis.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir.

1999); see Corwin v. City of Independence, 829 F.3d 695, 699 (8th Cir. 2016) (“Policy and

custom are not the same thing.”). “A ‘policy’ is an official policy, a deliberate choice of a

guiding principle or procedure made by the municipal official who has final authority

regarding such matters.” Mettler, 165 F.3d at 1204 (citing Ware v. Jackson Cty., 150 F.3d

873, 880 (8th Cir. 1998)); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)

(a policy is “a deliberate choice to follow a course of action . . . made from among various

alternatives by the official or officials responsible for establishing final policy with respect

to the subject matter in question”).

In contrast,

a plaintiff may establish municipal liability through an
unofficial custom of the municipality by demonstrating (1) the
existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s
employees; (2) deliberate indifference to or tacit authorization
of such conduct by the governmental entity’s policymaking
officials after notice to the officials of that misconduct; and (3)
that plaintiff was injured by acts pursuant to the governmental
entity’s custom, i.e., that the custom was a moving force
behind the constitutional violation.

Corwin, 829 F.3d at 700 (quotation omitted); see also, e.g., Mettler, 165 F.3d at 1204;

Ware, 150 F.3d at 880.

There appears to be no real dispute that Plaintiffs have sufficiently alleged the

existence of out-of-cell exercise policies by the County that restrict Plaintiffs’ access to the

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Jail’s gyms. See, e.g., Am. Compl. ¶¶ 46-57, 77, 128-36, 143-45; see also Defs.’ Mem. in

Supp. at 23 (referencing “Jail’s exercise policies”). Plaintiffs in fact identify the out-of-

cell exercise restrictions as policies. Am. Compl. ¶¶ 130 (“From March 19, 2020 through

July 5, 2021, Sherburne County Jail’s policy was to completely disallow Plaintiffs from

exercising anywhere outside of their cells despite Sherburne County Jail having the ability

to allow Plaintiffs to exercise in the numerous and available designated exercise facilities

at the Jail.”), 131 (“From July 6, 2021 through the present, it is Sherburne County Jail’s

policy to completely disallow Plaintiffs from exercising anywhere outside of their cells for

more than two hours per week despite Sherburne County Jail having the ability to allow

Plaintiffs to exercise in the numerous and available designated exercise facilities at the Jail

for at least 7 hours per week on a per-inmate basis.”).

Plaintiffs also refer to “customs, patterns, or practices” in the Amended Complaint.

See, e.g., Am. Compl. ¶¶ 137-39, 141; see also, e.g., Am. Compl. ¶¶ 104, 143. Defendants

assert that Plaintiffs have failed to allege sufficient facts identifying the existence of a

County custom regarding out-of-cell exercise. The Court agrees. It is true that a plaintiff

need not “specifically plead the existence of an unconstitutional . . . custom to survive a

motion to dismiss.” Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th

Cir. 2004) (citing Doe v. Sch. Dist. of City of Norfolk, 340 F.3d 605, 614 (8th Cir. 2003)).

“When a complaint is filed a plaintiff may not be privy to the facts necessary to accurately

describe or identify any . . . customs which may have caused the deprivation of a

constitutional right.” Doe, 340 F.3d at 614. But, “[a]t a minimum, a complaint must allege

facts which would support the existence of an unconstitutional . . . custom.” Id. There
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must be allegations “by which one could begin to draw an inference that the conduct

complained of . . . resulted from an unconstitutional . . . custom” of the municipality. Id.;

see also Crumpley-Patterson, 388 F.3d at 591.

“[P]roving the existence of a custom requires a plaintiff to show prior incidents of

factually similar unconstitutional conduct.” Marks v. Doe 1, 528 F. Supp. 3d 1008, 1013

(D. Minn. 2021) (citing Mettler, 165 F.3d at 1205). Fundamentally, Plaintiffs have not

alleged facts from which it could plausibly be inferred that there was a widespread,

persistent pattern of restricting out-of-cell exercise by County employees. Plaintiffs have

not, for example, alleged other incidents in which their out-of-cell exercise was restricted

prior to the events in question. See, e.g., Marks, 528 F. Supp. 3d at 1014; Tirado v. City of

Minneapolis, 521 F. Supp. 3d 833, 837-38, 840-42 (D. Minn. 2021); Samaha v. City of

Minneapolis, 525 F. Supp. 3d 933, 941-42 (D. Minn. 2021). Plaintiffs simply refer back

to their grievances regarding the out-of-cell exercise restrictions at issue here, Am. Compl.

¶¶ 111-13, and boilerplate allegations as to the existence of “customs, patterns, or

practices” regarding out-of-cell exercise, Am. Compl. ¶¶ 137-41. This is not sufficient.

See Ulrich v. Pope Cty., 715 F.3d 1054, 1061 (8th Cir. 2013); see also D. B. v. Hargett,

No. 13-cv-2781 (MJD/LIB), 2014 WL 1371200, at *5-7 (D. Minn. Apr. 7, 2014); Triemert

v. Washington Cty., No. 13-cv-1312 (PJS/JSM), 2013 WL 6729260, at *11-12 (D. Minn.

Dec. 19, 2013). Because Plaintiffs have not alleged sufficient facts from which it could be

plausibly inferred that the restriction of their out-of-cell exercise time resulted from a

County custom, the Court recommends dismissing Count 3 to the extent Plaintiffs have

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alleged constitutional violations based on a County custom regarding the restriction of out-

of-cell exercise.

Deliberate Indifference. 6 Regardless of their constitutional grounding, conditions-

of-confinement claims are evaluated under a deliberate-indifference framework. See, e.g.,

Farmer, 511 U.S. at 834 (Eighth Amendment); Wilson, 501 U.S. at 303 (Eighth

Amendment); Walton, 752 F.3d at 1117 (Fourteenth Amendment); see also Bell, 441 U.S.

at 535-36 (Due Process Clause). Unlike the subjective inquiry of deliberate indifference

for individuals, which requires the defendant to both be aware of facts from which the

inference could be drawn that a substantial risk of harm exists and draw that inference, the

inquiry for deliberate indifference with respect to municipalities is objective. See Farmer,

511 U.S. at 837, 840-41; City of Canton, 489 U.S. at 390; see also Walton, 752 F.3d at

1117. “A policy is deliberately indifferent to a person’s constitutional rights when its

inadequacy is both obvious and likely to result in the alleged deprivation of constitutional

rights.” Russell v. Hennepin Cty., 420 F.3d 841, 847 (8th Cir. 2005). In light of Wishon,

678 F.2d at 449, Campbell, 623 F.3d at 507, and Phillip, 320 F.3d at 847, the Court

concludes that Plaintiffs have alleged sufficient facts that the total and near-total restriction

of their ability to exercise outside of their cells pursuant to the County’s out-of-cell exercise

6
Plaintiffs have pleaded and the parties have argued Count 3 as a claim for deliberate indifference. See Am. Compl.
¶¶ 136, 141; see also Defs.’ Mem. in Supp. at 23; Pls.’ Mem. in Opp’n 50-51; Defs.’ Reply at 19-20. But see, e.g.,
Moyle v. Anderson, 571 F.3d 814, 818 (8th Cir. 2009) (“Where an official policy is itself unconstitutional or directs
employees to take unconstitutional action, no evidence beyond a statement of the policy and its exercise is necessary
to establish § 1983 liability.” (citing Szabla v. City of Brooklyn Park, 486 F.3d 385, 389-90 (8th Cir. 2007)); see also
Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 404-05 (1997)); cf. Monell, 436 U.S. at 690 (“[T]he
touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a
deprivation of rights protected by the Constitution.”).
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policies violated their constitutional rights and that these policies were the moving force

behind the alleged violations.

This case may ultimately turn on whether the County’s out-of-cell exercise policies

are reasonably related to a legitimate purpose. See, e.g., Turner v. Safley, 482 U.S. 78,89-

91 (1987); Bell, 441 U.S. at 538-39; Stearns, 957 F.3d at 908-09. As the Supreme Court

observed in Bell,

the problems that arise in the day-to-day operation of a
corrections facility are not susceptible of easy solutions.
Prison administrators therefore should be accorded wide-
ranging deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal
order and discipline and to maintain institutional security.
Such considerations are peculiarly within the province and
professional expertise of corrections officials, and, in the
absence of substantial evidence in the record to indicate that
the officials have exaggerated their response to these
considerations, courts should ordinarily defer to their expert
judgment in such matters.

441 U.S. at 547-48.

The County has proffered evidence that the Jail’s out-of-exercise policies were in

response to the COVID-19 pandemic and developed in consultation with the Minnesota

Department of Health. See, e.g., Defs.’ Mem. in Supp. at 5; see also Defs.’ Reply at 19-

20. The County has also proffered evidence that it made other recreational opportunities

available and increased gym access as conditions changed and based on guidance from the

Minnesota Department of Health. See, e.g., Defs.’ Mem. in Supp. at 5, 12. As stated above,

however, the Court has exercised its discretion not to consider this information. See supra

Section III.B. In any event, while all of this information may well be relevant to a

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determination of the merits of Plaintiffs’ Monell claim regarding the County’s out-of-cell

exercise policies, it is not relevant to the determination of whether Plaintiffs have stated a

claim. Therefore, the Court recommends that Defendants’ motion be denied as to Count 3

against the County in connection with the County’s out-of-cell exercise policies.

ii. City of Canton: Failure to Train

In Count 4, Plaintiffs allege the County failed to provide proper training “relating

to the minimum amount of physical exercise inmates must be permitted to engage in while

in the County’s custody.” Am. Compl. ¶ 148. Defendants assert that the County had no

notice the Jail’s gym policies were unconstitutional.

“[A] local government may be subject to § 1983 liability for ‘inadequate training of

its employees.’” Parrish, 594 F.3d at 997 (quoting City of Canton, 489 U.S. at 388). “Only

where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality . . .

can a [municipality] be liable for such a failure under § 1983.” City of Canton, 489 U.S.

at 389; see, e.g., Parrish, 594 F.3d at 997; Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir.

1996). “A pattern of similar constitutional violations by untrained employees is ‘ordinarily

necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick

v. Thompson, 563 U.S. 51, 62 (2011) (quoting Brown, 520 U.S. at 409). “Policymakers’

‘continued adherence to an approach that they know or should know has failed to prevent

tortious conduct by employees may establish the conscious disregard for the consequences

of their action—the ‘deliberate indifference’—necessary to trigger municipal liability.’”

Id. (quoting Brown, 520 U.S. at 407). “Without notice that a course of training is deficient

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in a particular respect, decisionmakers can hardly be said to have deliberately chosen a

training program that will cause violations of constitutional rights.” Id.

Accordingly,

[i]t is necessary to show “that in light of the duties assigned to
specific officers or employees the need for more or different
training is so obvious, and the inadequacy so likely to result in
the violation of constitutional rights, that the policymakers of
the [municipality] can be reasonably be said to have been
deliberately indifferent to the need.”

Andrews, 98 F.3d at 1076 (quoting City of Canton, 489 U.S. at 390); accord Parrish, 594

F.3d at 997-98. As such, “[n]otice is the touchstone of deliberate indifference in the context

of § 1983 municipal liability.” Atkinson, 709 F.3d at 1216. A failure-to-train claim

“can[not] succeed without evidence the municipality received notice of a pattern of

unconstitutional acts committed by its employees.” Id. at 1216-17 (quotation omitted);

accord Garcia v. City of New Hope, 984 F.3d 655, 670 (8th Cir. 2021); Parrish, 594 F.3d

at 997; Andrews, 98 F.3d at 1076. “[A] municipality’s liability ‘is at its most tenuous where

a claim turns on a failure to train.’” Garcia, 984 F.3d at 670 (quoting Connick, 563 U.S at

61).

Plaintiffs have not alleged sufficient facts showing the County had reason to believe

before the events giving rise to this litigation that its training on prisoner exercise was

inadequate. See Garcia, 984 F.3d at 670 (“Other than the events at issue here, Garcia cites

to no facts that would have given the City notice of a potential training inadequacy.”);

Atkinson, 709 F.3d at 1217 (“Atkinson has presented no evidence indicating the city had

reason to believe, before the events giving rise to this case, that its training or supervision

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of Sanders was inadequate.”); Szabla, 486 F.3d at 392 (“The evidence does not show that

Brooklyn Park had a history of police officers unreasonably using canines to apprehend

suspects without advance warning, such that the need for additional training or supervision

was plain.”). Plaintiffs rely on allegations that the County and its employees generally

established policies regarding administration of the Jail and such policies were the “moving

force” behind the restriction on out-of-cell exercise, Am. Compl. ¶¶ 132-36; the fact that

the County regularly has individuals in custody at the Jail, Am. Compl. ¶ 150; and the

restrictions on out-of-cell exercise at issue in this litigation, Am. Compl. ¶¶ 138-42, 148-

54, to show that the County was “aware of the need for more and different training on the

constitutional minimums of physical exercise,” Am. Compl. ¶ 151. See Pls.’ Mem. in

Opp’n at 53. But, these facts do not suggest a pattern of unconstitutional conduct. See

Atkinson, 709 F.3d at 1216-17. They do not show that, prior to the events in question, the

County had reason to believe there was a potential training inadequacy regarding prisoner

exercise. See Garcia, 984 F.3d at 670-71; Atkinson, 709 F.3d at 1216-17. Without

sufficient facts showing that the County was on notice its training regarding prisoner

exercise was inadequate, Plaintiffs have failed to state a claim for failure to train.

Therefore, the Court recommends that Count 4 be dismissed without prejudice in its

entirety.

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E. Unsanitary Cell Conditions

Defendants assert that Plaintiffs have not alleged facts showing that the alleged

unsanitary cell conditions constituted a constitutional violation. 7

“[I]nmates are entitled to reasonably adequate sanitation.” Howard v. Adkison, 887

F.2d 134, 137 (8th Cir. 1989); accord Owens v. Scott Cty. Jail, 328 F.3d 1026, 1028 (8th

Cir. 2003) (per curiam). The Eighth Circuit Court of Appeals has described the length of

time an individual “was subjected to the harsh confinement[ to be] a crucial factor.

Conditions, such as a filthy cell, may ‘be tolerable for a few days and intolerably cruel for

weeks or months.’” Howard, 887 F.3d at 137 (quoting Hutto v. Finney, 437 U.S. 678, 687

(1978)); see Owens, 328 F.3d at 1027; Smith v. Copeland, 87 F.3d 265, 269 (8th Cir. 1996);

Whitnack v. Douglas Cty., 16 F.3d 954, 957-58 (8th Cir. 1994). At the same time, “[w]hile

the length of time a prisoner must endure an unsanitary cell is undoubtedly one factor in

7
In their opposition, Plaintiffs contend their unsanitary-cell claims also “include claims related to overcrowding in
their cells.” Pls.’ Mem. in Opp’n at 42. The paragraphs of the Amended Complaint cited by Plaintiffs in support of
this assertion are factual allegations in support of their out-of-cell exercise claims, not an overcrowding claim. See,
e.g., Am. Compl. ¶¶ 44 (“The Defendants house Plaintiffs in cells that have a 4-foot by 6-foot usable space. Within
this small space, each cell has an institutional sink, toilet, desk, and bunk beds.”), 56 (“From March 19, 2020
through July 6, 2021, Plaintiffs were unable to exercise in the designated exercise areas within the Jail and were also
prohibited from exercising in the day room, leaving only the inmates’ cells for permissible exercise. However, the
Plaintiffs’ cells are very small, and, especially when double-bunked, Sherburne County Jail inmates do not have
enough space to exercise safely and effectively.” (see supra n.1)), 58 (“Plaintiffs’ cells at the Jail are extremely
small, and Plaintiffs cannot adequately exercise in their cells due to the lack of space, especially when double-
bunked.”), 67 (“Considering that Plaintiffs are permitted, and often forced, to be in close contact with one another in
the day space areas, gyms converted into movie rooms, and their cells, the Jail’s stated concern with close contact in
areas designated for exercise is pretextual and insincere.”). Counts 1 and 2, which contain the unsanitary-cell claims
refer to “Black Mold, urine, and fecal matter,” Am. Compl. ¶¶ 119, 125, not overcrowding. “[A] party cannot
amend its pleadings with a memorandum of law.” ResCap Liquidating Tr. v. U.S. Bank, N.A., No. 16-cv-4067
(PAM/HB), 2017 WL 2437242, at *6 (D. Minn. June 5, 2017); see also Morgan Distrib. Co. v. Unidynamic Corp.,
868 F.2d 992, 995 (8th Cir. 1989) (“[I]t is axiomatic that a complaint may not be amended by the briefs in
opposition to a motion to dismiss. To hold otherwise would mean that a party could unilaterally amend a complaint
at will, even without filing an amendment, and simply by raising a point in a brief.” (quotations and citations
omitted)).

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the constitutional calculus, the degree of filth is surely another . . . .” Whitnack, 16 F.3d at

958. “[T]he length of time required before a constitutional violation is made out decreases

as the level of filthiness endured increases.” Id.

Lee is alleged to have been subjected to mold in the air vent of his segregation cell

as well as “food, urine, and fecal matter on the floors” of this area for the “several days”

he was in segregation. Am. Compl. ¶¶ 80-81. While Plaintiffs are not required to plead

detailed factual allegations, there must be sufficient facts alleged for the Court to draw a

reasonable inference that the cell conditions at issue were not just unsanitary, but

unconstitutionally so. See Iqbal, 556 U.S. at 678-80; Twombly, 550 U.S. at 555-56. The

Amended Complaint does not allege facts from which the Court could reasonably infer the

level or degree of mold and waste (human and otherwise) present in Lee’s segregation cell.

Cf., e.g., Taylor v. Rojas, 141 S. Ct. 52, 53 (2020) (per curiam) (“The first cell was covered,

nearly floor to ceiling, in massive amounts of feces: all over the floor, the ceiling, the

window, the walls, and even packed inside the water faucet.” (quotation omitted)); Owens,

328 F.3d at 1026 (“Owens had to sleep on a mattress on the floor approximately a foot and

a half away from the toilet. When his cellmate would use the toilet at night, urine would

splash onto Owens and his blankets.”).

Plaintiffs rely on cases outside the Eighth Circuit to support the proposition that

allegations of exposure to mold alone are sufficient to state a claim, citing Smith v. Leonard,

244 F. App’x 583 (5th Cir. 2007) (per curiam); Abrams v. Erfe, No. 3:17-CV-1570 (CSH),

2018 WL 691714 (D. Conn. Feb. 2, 2018); Davis v. Williams, 216 F. Supp. 3d 900 (N.D.

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Ill. 2016). Each of these cases is distinguishable as something more than the mere existence

of mold was alleged.

In Smith, the plaintiff alleged he experienced physical symptoms as a result of the

mold. Smith, 244 F. App’x at 584 (“headaches, sinus problems, trouble breathing, blurred

vision, irritated eyes, and fatigue”). While the Amended Complaint alleges that

“[p]rolonged exposure to Black Mold is known to have disastrous health consequences that

can include but are not limited to nausea, vomiting, and bleeding in the lungs,” Am. Compl.

¶ 86, there are no allegations that any of Plaintiffs, including Lee, experienced any

symptoms as a result of the exposure. 8 See, e.g., Ware v. St. Louis City Justice Ctr., No.

4:20-cv-01065-AGF, 2020 WL 7240445, at *8 (E.D. Mo. Dec. 9, 2020) (“Plaintiff’s bare

allegation of mold being present in his cell, without more, does not establish an

unconstitutional condition of confinement.”); Kingcade v. Holder, No. 1:19-cv-165-NAB,

2020 WL 495131, at *3 (E.D. Mo. Jan. 30, 2020) (“At most, plaintiff’s allegations establish

that there was mold and/or mildew in the facility. However, mere exposure to mold or

mildew does not amount to an excessive risk to health or safety, as required to state a claim

premised upon unconstitutional conditions of confinement.”); Washington v. Heartline,

No. 4:10-CV-04189, 2011 WL 4403628, at *1 (W.D. Ark. Sept. 21, 2011) (“Plaintiff

argues that he could have been exposed to toxic mold. A remote future possibility of harm

from the mold is not actionable.”).

8
And, as will be discussed momentarily, there are no allegations from which it can be plausibly inferred that any of
Plaintiffs experienced “prolonged exposure.”
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In Davis, the mold-related claim was one for the deprivation of cleaning supplies in

conjunction with other unhygienic conditions. 216 F. Supp. 3d at 904, 909-10. The

plaintiff alleged, due to insufficient quantities of disinfectant provided by the prison, he

could not adequately clean his cell and shower area and “the resultant toxic mold c[ould]

result in neurological damage and cancer.” Id. at 904. Combining these allegations with

other allegations regarding conditions at the prison, including but not limited to birds being

allowed “to fly freely throughout the prison’s living units and cafeteria,” “mice roam[ing]

in and out of cells regularly,” and “massive infestations of roaches and spiders in the

inmates’ cells and shower area” which “resulted in two roaches being removed from [the

plaintiff’s] right ear canal,” the district court found that the plaintiff had stated a claim for

unsanitary conditions of confinement. Id. (quotations omitted). Plaintiffs have not alleged

they were deprived of adequate cleaning supplies. Nor have they alleged a collection of

unsanitary conditions of such a level or degree that it could plausibly be inferred that the

conditions of their confinement are unconstitutional.

Similar to Lee, the plaintiff in Abrams “alleged the presence of the hazardous

condition of ‘black mold’ on the air vent in his segregation cell,” where he was housed for

17 days. 2018 WL 691714, at *13-14. A corrections officer “dismissed his complaint

about black mold in the segregation unit by telling him, ‘It comes off with wet tissue.’” Id.

at *15. The claim was allowed to proceed with respect to this officer in his individual

capacity. Id. There is no allegation that any of Defendants expressly dismissed Lee’s

concerns and Lee’s alleged exposure was of much shorter duration. There are no

allegations in the Amended Complaint from which to infer that Lee (or any of Plaintiffs)
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was subject to the alleged unsanitary conditions for an extended period of time. Compare,

e.g., Goldman v. Forbus, 17 F. App’x 487, 488 (8th Cir. 2001) (per curiam) (two nights);

Smith, 87 F.3d at 268 (four days); Whitnack, 16 F.3d at 958 (less than 24 hours); White v.

Nix, 7 F.3d 120, 121 (8th Cir. 1993) (11 days); White v. Crow Ghost, 456 F. Supp. 2d 1096,

1105-06 (D. N.D. 2006) (four days), with Owens, 328 F.3d at 1027 (five weeks); Howard,

887 F.2d at 137 (two years); Lewis v. Jackson Cty., No. 4:21-cv-00230-RK, 2021 WL

5867649, at *4 (W.D. Mo. Dec. 10, 2021) (several months); cf. Stearns, 957 F.3d at 904-

05 (eight days in transport vehicle).

The Court recognizes that the Eighth Circuit has “noted the need to be ‘especially

cautious about condoning conditions that include an inmate’s proximity to human waste.’”

Owens, 328 F.3d at 1027 (quoting Fruit v. Norris, 905 F.2d 1147, 1151 (8th Cir. 1990)).

Taking the allegations in the Amended Complaint as true for purposes of the instant

motion, the Court does not doubt that the “several days” Lee spent in segregation were

unpleasant and uncomfortable. But, absent facts showing the level or degree to which the

mold and waste were present in Lee’s cell and in light of the short period of time in which

Lee was subject to the alleged unsanitary conditions, the Court concludes that Plaintiffs

have failed to state a claim with respect to unsanitary cell conditions under the Eighth and

Fourteenth Amendments. Therefore, the Court recommends that Defendants’ motion be

granted in part as to the claims for unsanitary cell conditions in Counts 1 and 2, and that

these claims be dismissed in their entirety without prejudice.

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F. Summary of Claims

In sum, the Court recommends that Counts 1 and 2 as well as all individual

Defendants be dismissed without prejudice. For reasons discussed throughout Section

III.D.2, Counts 3 and 4 can only be brought against the County. Counts 1 and 2 are

therefore the only claims conceivably brought against Defendants individually. The Court

has concluded that Plaintiffs have failed to state a claim with respect to unsanitary cell

conditions, see supra Section III.E, and against Defendants in their individual capacities

regarding the out-of-cell exercise policies, see supra Section III.D.1. The Court has also

concluded that any claims against Defendants in their official capacities are redundant of

the claims against the County. See supra Section III.D.2.a. Thus, in the interests of clarity

and having recommended that the claims against Defendants in both their individual and

official capacities be dismissed, the Court recommends that Counts 1 and 2 be dismissed

in their entirety.

As to the County, the Court further recommends that Count 3 be dismissed without

prejudice to the extent Plaintiffs assert the alleged constitutional violations resulted from a

County custom regarding out-of-cell exercise and Count 4 be dismissed without prejudice

in its entirety. The sole surviving claim is Plaintiffs’ Monell claim in Count 3 against the

County in connection with its out-of-cell exercise policies.

G. Specific Relief: Compensatory Damages Under the PLRA, Injunctive
Relief, and Punitive Damages

Defendants move for dismissal of Plaintiffs’ request for compensatory damages,

injunctive relief, and punitive damages. Defendants assert Plaintiffs have failed to allege

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more than de minimis physical injuries, precluding recovery of compensatory damages

under the Prisoner Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(e); McAdoo

v. Martin, 899 F.3d 521, 525-27 (8th Cir. 2018); Sisney v. Reisch, 674 F.3d 839, 842-43

(8th Cir. 2012); Royal v. Kautzky, 375 F.3d 720, 722-24 (8th Cir. 2004). Defendants

additionally assert that Plaintiffs’ claims for injunctive relief are moot because the Jail’s

gyms have now gone back to their regular schedule of being open five days per week.

Lastly, Defendants assert that Plaintiffs have not alleged sufficient facts that Defendants

acted with the requisite evil motive, intent, or reckless or callous indifference to Plaintiffs’

federally protected rights to recover punitive damages. See, e.g., Smith v. Wade, 461 U.S.

30, 56 (1983); Schaub, 638 F.3d at 922.

Plaintiffs respond that they have requested more than just compensatory damages

and, in any event, they have alleged sufficient physical injuries to recover compensatory

damages under the PLRA. Plaintiffs further respond that their request for injunctive relief

is not moot as the Jail has recently instituted additional lockdowns in response to COVID-

19, and “the Jail’s normal policy of only providing inmates the opportunity to exercise

outside their cells for five hours per seven days is an unconstitutional restriction of [their]

right to exercise under the Eighth Amendment.” Pls.’ Mem. in Opp’n at 56. Finally,

Plaintiffs respond that they have alleged sufficient facts to show Defendants acted with the

requisite evil motive or reckless indifference.

As stated above, the Court has concluded that Plaintiffs have stated a Monell claim

against the County in connection with its out-of-cell exercise policies. With the exception

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of punitive damages against the County, the Court finds Defendants’ request to preclude

the availability of certain kinds of relief at this stage of the proceedings to be premature.

1. Compensatory Damages Under the PLRA

“[Section] 1997e(e) is merely a limitation on damages, not an element of [a] § 1983

lawsuit.” Kahle v. Leonard, 563 F.3d 736, 742 (8th Cir. 2009) (quotation omitted). The

PLRA’s restriction on compensatory damages precludes recovery “for mental or emotional

injury . . . without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). Plaintiffs

have alleged both physical injuries and emotional distress as a result of the County’s out-

of-cell exercise policies. “No clear line divides de minimis injuries from others.” Irving

v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008). Discovery will reveal the nature and extent

of damages, if any, that may be available to Plaintiffs. See McAdoo, 899 F.3d at 525 (8th

Cir. 2018) (“Thus, to recover more than nominal damages under the [PLRA], a prisoner

must allege or prove more than mental or emotional injury. We interpret the PLRA to

require more than a de minimis physical injury.”).

2. Injunctive Relief

“[M]ootness applies to both cases as a whole and particular requests for relief.

Accordingly, changed circumstances can moot a request for injunctive relief without

mooting the whole case.” Council on American-Islamic Relations—Minnesota v. Atlas

Aegis, LLC, 497 F. Supp. 3d 371, 376 n.2 (D. Minn. 2020) (citation omitted) [hereinafter

CAIR-MN]. “A claim for injunctive relief may become moot if challenged conduct

permanently ceases.” Comfort Lake Ass’n, Inc. v. Dresel Contracting, Inc., 138 F.3d 351,

354 (8th Cir. 1998); accord CAIR-MN, 497 F. Supp. 3d at 376. “Generally, when there is
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no ‘reasonable expectation that the wrong will be repeated,’ a claim for injunctive relief is

moot.” CAIR-MN, 497 F. Supp. 3d at 376-77 (quoting Comfort Lake Ass’n, 138 F.3d at

354). “Mere voluntary cessation of a challenged action does not moot a case. Rather a

case becomes moot ‘if subsequent events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.’” Strutton v. Meade, 668

F.3d 549, 556 (8th Cir. 2012) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 189 (2000)); see also Hawse v. Page, 7 F.4th 685, 692 (8th Cir.

2021) (“Where it is absolutely clear that the County’s disputed conduct could not

reasonably be expected to recur, an action challenging a superseded public health order is

moot.”). “The burden of showing that the challenged conduct is unlikely to recur rests on

the party asserting mootness.” Strutton, 668 F.3d at 556; accord Let Them Play MN v.

Walz, No. 21-cv-79 (ECT/DTS), ___ F. Supp. 3d ____, 2021 WL 3741486, at *6 (D. Minn.

Aug. 24, 2021). “Although this is a heavy burden, it is slightly less onerous when it is the

government that has voluntarily ceased the challenged conduct.” Let Them Play MN, 2021

WL 3741486, at *6 (quotation omitted).

Defendants maintain that the Jail’s gyms are now open five days per week. Defs.’

Mem. in Supp. at 26. Plaintiffs counter that they have been subjected to at least one

additional period of restriction in September 2021. Pls.’ Mem. in Opp’n. at 55. The Court

concludes that Defendants have not met their burden to show that there is no reasonable

expectation Plaintiffs will not be again subject to the out-of-cell exercise policies. Based

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on the record before the Court, which is uncontradicted by Defendants, Plaintiffs appear to

have already been again subjected to the County’s out-of-cell exercise policies. 9

3. Punitive Damages

The Court has recommended dismissal of all claims and the individual Defendants

other than the Monell claim in Count 3 against the County regarding the out-of-cell exercise

policies. Punitive damages are not available against a municipality. See, e.g., Graham,

473 U.S. at 167 n.13 (1985) (“[P]unitive damages are not available under § 1983 from a

municipality.”); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (“[A]

municipality is immune from punitive damages under 42 U.S.C. § 1983.”). As punitive

damages are not available to Plaintiffs in connection with their sole remaining claim, the

Court recommends that Defendants’ motion be granted to the extent the Amended

Complaint seeks punitive damages against the County.

[Continued on next page.]

9
This case is distinguishable from those cases challenging COVID-19 restrictions based on since-rescinded
executive orders and policies whose authority flowed from those rescinded executive orders. See, e.g., Hawse, 7
F.4th at 692; Let Them Play MN, , 2021 WL 3741486, at *5-6. There is no contention that the County’s out-of-cell
exercise policies were issued pursuant to a since-rescinded executive order.
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IV. RECOMMENDATION

Based upon the record, memoranda, and the proceedings herein, and for the reasons

stated above, IT IS HEREBY RECOMMENDED that Defendants’ Amended Motion to

Dismiss, ECF No. 16, be GRANTED IN PART and DENIED IN PART as follows:

1. Counts 1, 2, and 4 be DISMISSED WITHOUT PREJUDICE in their entirety;

2. Count 3 be DISMISSED WITHOUT PREJUDICE to the extent Plaintiffs
assert the alleged constitutional violations resulted from a County custom
regarding out-of-cell exercise;

3. All individual Defendants be DISMISSED WITHOUT PREJUDICE;

4. Any request for punitive damages against the County be DISMISSED WITH
PREJUDICE; and

5. The remainder of Defendants’ motion be DENIED.

Dated: February 1 , 2022 s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota

Brenizer et al. v. County of Sherburne et
al.
Case No. 21-cv-1301 (DSD/TNL)

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. LR 72.2(b)(2). All
objections and responses must comply with the word or line limits set for in LR 72.2(c).
36

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