UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
Richard Hoeft,
Plaintiff,
v. ORDER Civil No. 17-2526 (MJD/LIB) Nathan Eide, et al.,
Defendants.
Plaintiff, pro se.
Jay T. Squires and Michael J. Ervin, Rupp, Anderson, Squires & Waldspurger, P.A., Counsel for Defendants. _______________________________________________________________________
I. Introduction The above matter comes before the Court upon the Report and Recommendation of United States Magistrate Judge Leo I. Brisbois dated October 25, 2018. II. Discussion A. Background Plaintiff, a Wisconsin resident, purchased numerous timber sale permits that allowed him to harvest timber in Lake County, Minnesota between 2009 and 2014. In his complaint, Plaintiff alleges that Defendant Nathan Eide told Plaintiff
“if it were up to me, you would not have any of these [timber] sales, because the sale that you have could be cut by one of our loggers up here.” (Comp. ¶ 14.) Later, Plaintiff alleges he was wrongfully criticized for the manner in which he
harvested timber and ultimately was put on an “irresponsible list” because he is a Wisconsin resident. (Id. ¶ 20.)
Plaintiff brought this action against a number of Lake County officials1 pursuant to 28 U.S.C. §§ 1981, 1983 and 1988, claiming the named defendants discriminated against him because he is a Wisconsin resident, in violation of the
Privileges and Immunities Clause. He further claims that they defamed him by criticizing the manner in which he harvested timber and breached the timber
permits by interfering in his ability to harvest timber. Plaintiff specifically alleges that “All defendant’s are being sued in their personal capacities” (Comp. at 2.) Plaintiff later amended his complaint to add a Lake County Forestry Staff
member as a defendant, to add claims of retaliation and conspiracy, and to include additional factual allegations.
1 The named defendants are Nathan Eide, Lake County Minnesota Forestry Commissioner; William Nixon, Lake County Minnesota Forester; Laura Auron, Lake County Minnesota District Attorney; and Russell Conrow, Lake County Minnesota Asst. District Attorney. B. Report and Recommendation
Defendants filed a motion for summary judgment, which was referred to the Magistrate Judge. Following briefing and oral argument, the Magistrate Judge issued a Report and Recommendation as to all claims asserted in the
Amended Complaint. Plaintiff has filed objections to the recommendation that the Court grant Defendants’ motion for summary judgment as to his claims of
discrimination under the Privileges and Immunities Clause, breach of contract and retaliation. Plaintiff did not object to the recommendations to dismiss his defamation and conspiracy claims.
Pursuant to statute, the Court has conducted a de novo review of the record. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b). Based upon that review, the
Court will adopt the Report and Recommendation. C. Objections 1. Claim based on the Privileges and Immunities Clause
Plaintiff objects to the Magistrate Judge’s finding that the claim based on the Privileges and Immunities Clause fails as a matter of law. Plaintiff further
argues that the Magistrate Judge did not consider his evidence in making his recommendations. Initially, the Court notes that in his objections, Plaintiff states “Had I sued
the defendants in their official capacities . . ” (Pl. Objections at 2.) Plaintiff has thus clarified that he did not sue defendants in their official capacities. Therefore, the Magistrate Judge did not err when construing the claims against
defendants in their personal capacities. To state a claim under the Privileges and Immunities Clause, Plaintiff must
prove (1) a state law discriminates against out-of-state residents with regard to a privilege or immunity protected by the Clause, and (2) there is insufficient justification for such discrimination. Minnesota ex rel. Hatch v. Hoeven, 456 F.3d
826, 834 (8th Cir. 2006) (citing United Bldg. & Constr. Trades Council of Camden County & Vicinity v. Mayor & Council of the City of Camden, 465 U.S. 208, 218
(1984)). Here, Plaintiff has alleged that the individual defendants discriminated against him because he is a Wisconsin resident. In support of his claim, Plaintiff
has cited to his affidavit, in which he describes a phone conversation between him and Nathan Eide, during which Eide commented “if it were up to me, you
would not have any of these [timber] sales, because the sale that you have could be cut by one of our loggers up here.” Plaintiff does not allege that Eide was acting pursuant to a state or municipal law when he made this comment; only
that he was acting in his capacity as Lake County Land Commissioner. Plaintiff also points to an email between Eide and Richard Moore, in which Eide comments that “it’d be nice to “weed” these guys out before they start
causing problems.” (Hoeft Ex. 1.) However, a reading of the entire email string shows that Eide was referencing those loggers that have delinquent accounts, not
loggers from Wisconsin. (See id.) Plaintiff also references a letter dated February 16, 2016, in which defendants told Plaintiff of their concerns as to Plaintiff’s performance on the
timber sales he had already purchased. (Hoeft Ex. 3.) Plaintiff then claims, with no supporting evidence, that this letter shows discriminatory intent because
Minnesota loggers “didn’t have to be told by the county which sales they could and could not cut.” (Hoeft Opp. Br. at 4.) Plaintiff further argues he can demonstrate discriminatory animus by
demonstrating that the County refunded down payments to a Minnesota logger, but refused to give him his down payment back.
After its de novo review of the record and viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to show a genuine issue of material fact as to whether he was discriminated against on the
basis of his Wisconsin residency. With regard to the refund paid to Tim Anderson, the record shows that the County had moved for a restraining order against Anderson in response to
Anderson’s personal threats and refusal to follow established guidelines and Minnesota law. (Hoeft Ex. 4.) In an effort to resolve the issues between the
County and Anderson, Anderson was offered a refund of his down payment regarding several number of timber sales if he agreed to not contest the restraining order and to release any potential claims against the County. (Id. at
7-10.) By contrast, the record shows that Plaintiff was given multiple extensions
on timber sales, but that Plaintiff’s failure to pay amounts due and to sign a Memorandum of Understanding were the reasons Plaintiff was removed from the Responsible Bidders list. (Ervin Aff., Ex. L.) Plaintiff does not dispute that he
owed money to the County for timber sale permits, nor does he dispute that he refused to sign a Memorandum of Understanding. In addition, Defendants have
submitted evidence that the County entered into similar memoranda of agreement with a local logging company. (Ervin, Ex. K, Ans. To Int. No. 7.) Based on the record as a whole, the alleged comment by Eide suggesting
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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
Richard Hoeft,
Plaintiff,
v. ORDER Civil No. 17-2526 (MJD/LIB) Nathan Eide, et al.,
Defendants.
Plaintiff, pro se.
Jay T. Squires and Michael J. Ervin, Rupp, Anderson, Squires & Waldspurger, P.A., Counsel for Defendants. _______________________________________________________________________
I. Introduction The above matter comes before the Court upon the Report and Recommendation of United States Magistrate Judge Leo I. Brisbois dated October 25, 2018. II. Discussion A. Background Plaintiff, a Wisconsin resident, purchased numerous timber sale permits that allowed him to harvest timber in Lake County, Minnesota between 2009 and 2014. In his complaint, Plaintiff alleges that Defendant Nathan Eide told Plaintiff
“if it were up to me, you would not have any of these [timber] sales, because the sale that you have could be cut by one of our loggers up here.” (Comp. ¶ 14.) Later, Plaintiff alleges he was wrongfully criticized for the manner in which he
harvested timber and ultimately was put on an “irresponsible list” because he is a Wisconsin resident. (Id. ¶ 20.)
Plaintiff brought this action against a number of Lake County officials1 pursuant to 28 U.S.C. §§ 1981, 1983 and 1988, claiming the named defendants discriminated against him because he is a Wisconsin resident, in violation of the
Privileges and Immunities Clause. He further claims that they defamed him by criticizing the manner in which he harvested timber and breached the timber
permits by interfering in his ability to harvest timber. Plaintiff specifically alleges that “All defendant’s are being sued in their personal capacities” (Comp. at 2.) Plaintiff later amended his complaint to add a Lake County Forestry Staff
member as a defendant, to add claims of retaliation and conspiracy, and to include additional factual allegations.
1 The named defendants are Nathan Eide, Lake County Minnesota Forestry Commissioner; William Nixon, Lake County Minnesota Forester; Laura Auron, Lake County Minnesota District Attorney; and Russell Conrow, Lake County Minnesota Asst. District Attorney. B. Report and Recommendation
Defendants filed a motion for summary judgment, which was referred to the Magistrate Judge. Following briefing and oral argument, the Magistrate Judge issued a Report and Recommendation as to all claims asserted in the
Amended Complaint. Plaintiff has filed objections to the recommendation that the Court grant Defendants’ motion for summary judgment as to his claims of
discrimination under the Privileges and Immunities Clause, breach of contract and retaliation. Plaintiff did not object to the recommendations to dismiss his defamation and conspiracy claims.
Pursuant to statute, the Court has conducted a de novo review of the record. 28 U.S.C. § 636(b)(1); Local Rule 72.2(b). Based upon that review, the
Court will adopt the Report and Recommendation. C. Objections 1. Claim based on the Privileges and Immunities Clause
Plaintiff objects to the Magistrate Judge’s finding that the claim based on the Privileges and Immunities Clause fails as a matter of law. Plaintiff further
argues that the Magistrate Judge did not consider his evidence in making his recommendations. Initially, the Court notes that in his objections, Plaintiff states “Had I sued
the defendants in their official capacities . . ” (Pl. Objections at 2.) Plaintiff has thus clarified that he did not sue defendants in their official capacities. Therefore, the Magistrate Judge did not err when construing the claims against
defendants in their personal capacities. To state a claim under the Privileges and Immunities Clause, Plaintiff must
prove (1) a state law discriminates against out-of-state residents with regard to a privilege or immunity protected by the Clause, and (2) there is insufficient justification for such discrimination. Minnesota ex rel. Hatch v. Hoeven, 456 F.3d
826, 834 (8th Cir. 2006) (citing United Bldg. & Constr. Trades Council of Camden County & Vicinity v. Mayor & Council of the City of Camden, 465 U.S. 208, 218
(1984)). Here, Plaintiff has alleged that the individual defendants discriminated against him because he is a Wisconsin resident. In support of his claim, Plaintiff
has cited to his affidavit, in which he describes a phone conversation between him and Nathan Eide, during which Eide commented “if it were up to me, you
would not have any of these [timber] sales, because the sale that you have could be cut by one of our loggers up here.” Plaintiff does not allege that Eide was acting pursuant to a state or municipal law when he made this comment; only
that he was acting in his capacity as Lake County Land Commissioner. Plaintiff also points to an email between Eide and Richard Moore, in which Eide comments that “it’d be nice to “weed” these guys out before they start
causing problems.” (Hoeft Ex. 1.) However, a reading of the entire email string shows that Eide was referencing those loggers that have delinquent accounts, not
loggers from Wisconsin. (See id.) Plaintiff also references a letter dated February 16, 2016, in which defendants told Plaintiff of their concerns as to Plaintiff’s performance on the
timber sales he had already purchased. (Hoeft Ex. 3.) Plaintiff then claims, with no supporting evidence, that this letter shows discriminatory intent because
Minnesota loggers “didn’t have to be told by the county which sales they could and could not cut.” (Hoeft Opp. Br. at 4.) Plaintiff further argues he can demonstrate discriminatory animus by
demonstrating that the County refunded down payments to a Minnesota logger, but refused to give him his down payment back.
After its de novo review of the record and viewing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has failed to show a genuine issue of material fact as to whether he was discriminated against on the
basis of his Wisconsin residency. With regard to the refund paid to Tim Anderson, the record shows that the County had moved for a restraining order against Anderson in response to
Anderson’s personal threats and refusal to follow established guidelines and Minnesota law. (Hoeft Ex. 4.) In an effort to resolve the issues between the
County and Anderson, Anderson was offered a refund of his down payment regarding several number of timber sales if he agreed to not contest the restraining order and to release any potential claims against the County. (Id. at
7-10.) By contrast, the record shows that Plaintiff was given multiple extensions
on timber sales, but that Plaintiff’s failure to pay amounts due and to sign a Memorandum of Understanding were the reasons Plaintiff was removed from the Responsible Bidders list. (Ervin Aff., Ex. L.) Plaintiff does not dispute that he
owed money to the County for timber sale permits, nor does he dispute that he refused to sign a Memorandum of Understanding. In addition, Defendants have
submitted evidence that the County entered into similar memoranda of agreement with a local logging company. (Ervin, Ex. K, Ans. To Int. No. 7.) Based on the record as a whole, the alleged comment by Eide suggesting
that he would like to have given Plaintiff’s timber sales to local loggers – standing alone - is not sufficient to establish a genuine issue of material fact that defendants acted with discriminatory animus. The Court thus overrules
Plaintiff’s objections to the recommendation that it dismiss Plaintiff’s claim based on the Privileges and Immunities Clause.
2. Breach of Contract Plaintiff also objects to the Magistrate Judge’s finding that Defendant Eide cannot be personally liable on a claim of breach of the timber sale permits,
because Plaintiff did not sue him in his official capacity. Based on its de novo review, the Court will overrule this objection as well,
as Plaintiff has indicated that he sued defendants only in their personal capacities. Because the timber sale permits were issued by Lake County, Plaintiff cannot bring a breach of contract claim against the individual defendants.
3. Retaliation Plaintiff also objects to the Magistrate Judge’s findings and conclusion that
his claim for retaliation should be dismissed. Based on the Court’s de novo review of the record and the applicable law, the Court will overrule Plaintiff’s
objections.
IT IS HEREBY ORDERED that:
1. Defendants Nathan Eide, William Nixon, Laura Auron, Russell Conrow, and Pat Hondl’s Motion for Summary Judgment, [Docket No.
24], is GRANTED in its entirety, as set forth in Magistrate Judge Brisbois’s Report and Recommendation [Docket No. 39]; and 2. The present action is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY
Dated: December 11, 2018
s/ Michael J. Davis MICHAEL J. DAVIS United States District Court