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Ivey v. Mooney: US District Court : PRISIONS - settlement of claims regarding statute made any threat regarding statute not immediate; policy on inmate possession of pictures OK

DEAN MOONEY, individually and in his
official capacity as Director of the
Minnesota Sex Offender Program; and
Civil No. 05-2666 (JRT/FLN)
Christopher L. Ivey, 1111 Highway 73, Moose Lake, MN 55767-9452,
plaintiff pro se.
Carrie A. Oberg and Robin Christopher Vue-Benson, Assistant Attorneys
445 Minnesota Street, Suite 900, St. Paul, MN 55101, for defendants.
This case is before the Court on plaintiff Christopher L. Iveys objections to a
Report and Recommendation issued by United States Magistrate Judge Franklin L. Noel
on August 18, 2008 and an Order issued by Magistrate Judge Noel dated August 18,
2008. After a de novo review of the objections to the Report and Recommendation, see
28 U.S.C. 636(b)(1); Local Rule 72.2(b), and clear-error review of the Order, see 28
U.S.C. 636(b)(1); Local Rule 72.2(a), the Court adopts the Report and
Recommendation and affirms the Order for the reasons given below.
In 1993, the Minnesota Legislature enacted legislation to establish a secure facility
for sex offenders in Moose Lake, Minnesota. See Minn. Stat. 246B.02. There is also a
Minnesota Sex Offender Program (MSOP or the Program) secure facility in St. Peter,
Minnesota. The Program provides treatment to persons committed by the courts as
sexual psychopathic personalities or sexually dangerous persons under the Minnesota
Commitment and Treatment Act. See Minn. Stat. 246B.02; Minn. Stat. ch. 253B.
Sexual psychopathic personalities are persons whose conduct evidences an utter lack of
power to control their sexual impulses. Minn. Stat. 253B.02, subd. 18b. Sexually
dangerous persons are persons who, because of their history and condition, are likely to
engage in acts of harmful sexual conduct. Minn. Stat. 253B.02, subd. 18c.
In 2004, the Minnesota Legislature enacted Minnesota Statute section 246B.04,
subdivision 2, entitled Ban on Obscene Material or Pornographic Work. Section
246B.04, subdivision 2 provides:
Ban on obscene material or pornographic work. The Commissioner
shall prohibit persons civilly committed as sexual psychopathic
personalities or sexually dangerous persons . . . from having or receiving
material that is obscene as defined under section 617.241, subdivision 1,1
1 Minnesota Statute section 617.241, subdivision 1(a) provides:
Obscene means that the work, taken as a whole, appeals to the prurient
interest in sex and depicts or describes in a patently offensive manner sexual
conduct and which, taken as a whole, does not have serious literary, artistic,
political, or scientific value. In order to determine that a work is obscene, the trier
of fact must find:
(i) that the average person, applying contemporary community standards
would find that the work, taken as a whole, appeals to the prurient interest in sex;
(ii) that the work depicts sexual conduct specifically defined by clause (b)
in a patently offensive manner; and
(Footnote continued on next page.)
material that depicts sexual conduct as defined under section 617.241,
subdivision 1,2 or pornographic work as defined under section 617.246,
subdivision 1,3 while receiving services in any secure treatment facilities
(Footnote continued.)
(iii) that the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.
2 Minnesota Statute section 617.241, subdivision 1(b) provides:
Sexual conduct means any of the following:
(i) An act of sexual intercourse, normal or perverted, actual or simulated,
including genital-genital, anal-genital, or oral-genital intercourse, whether
between human beings or between a human being and an animal.
(ii) Sadomasochistic abuse, meaning flagellation or torture by or upon a
person who is nude or clad in undergarments or in a sexually revealing costume or
the condition of being fettered, bound, or otherwise physically restricted on the
part of one so clothed or who is nude.
(iii) Masturbation, excretory functions, or lewd exhibitions of the genitals
including any explicit, close-up representation of a human genital organ.
(iv) Physical contact or simulated physical contact with the clothed or
unclothed pubic areas or buttocks of a human male or female, or the breasts of the
female, whether alone or between members of the same or opposite sex or
between humans and animals in an act of apparent sexual stimulation or
3 Minnesota Statute section 617.246, subdivision 1(f) provides:
Pornographic work means:
(1) an original or reproduction of a picture, film, photograph, negative,
slide, videotape, videodisc, or drawing of a sexual performance involving a
minor; or
(2) any visual depiction, including any photograph, film, video, picture,
drawing, negative, slide, or computer-generated image or picture, whether made
or produced by electronic, mechanical, or other means that:
(i) uses a minor to depict actual or simulated sexual conduct;
(ii) has been created, adapted, or modified to appear that an
identifiable minor is engaging in sexual conduct; or
(Footnote continued on next page.)
operated by the Minnesota sex offender program or any other facilities
operated by the commissioner.
In November 2004, the MSOP distributed a procedure entitled Ban on Sexually
Explicit, Obscene or Pornographic Materials (the 2004 Ban) that was created in order
to comply with Section 246B.04, subdivision 2. (Mooney Aff. 7.) The 2004 Ban was
the subject of litigation brought by another patient of the MSOP, Clark A. Kruger. (Id.
8.) After two attorneys were appointed to represent Kruger,4 he pursued claims that are
substantially similar to those pursued here.
Kruger ultimately settled his claims. As part of that settlement, the 2004 Ban was
superseded by a policy titled Media Possession By Patients in the Minnesota Sex
Offender Program (the 2007 Policy). The 2007 Policy was negotiated over the course
of seventeen months, and incorporated suggestions from Krugers attorneys. (Id. 10.)
The purpose of the 2007 Policy is to provide a
therapeutic living environment for patients in the [MSOP] that enhances
their rehabilitation, to provide a safe and secure environment for all persons
in MSOP facilities, and to comply with the provisions of Minnesota
Statutes section 246B.04, subdivision 2 by restricting patients from
possessing sexually explicit, obscene or pornographic materials in a way
that is consistent with the constitutional rights of civilly-committed
(Id., Ex. 1.) The 2007 Policy goes on to state that
(Footnote continued.)
(iii) is advertised, promoted, presented, described, or distributed in
such a manner that conveys the impression that the material is or contains
a visual depiction of a minor engaging in sexual conduct.
4 Specifically, Kruger was represented by Professor Eric Janus, now President and Dean
of the William Mitchell College of Law, and Robin Wolpert of the firm Greene Espel, PLLP.
(See Kruger v. Goodno, Civ. No. 05-2078 (D. Minn.).)
[c]ivilly committed patients retain their First Amendment rights, unless
those rights are restricted for important and specified treatment or safety
reasons. . . . There is reasonable concern that some sexually explicit
materials, which are otherwise legal, can increase the likelihood of
assaultive or harassing behavior among committed patients. These
materials may also hinder a patients rehabilitation.
The 2007 Policy divides all media material into one of three categories:
prohibited, counter-therapeutic, and permitted. (Id.) Prohibited materials may not be
possessed by any patient and are defined as:
1. Obscene materials, as defined in Minnesota Statutes section 617.241.
2. Illegal materials, such as those containing child pornography as defined in
Minnesota Statutes section 617.246.
3. Any pictures, including pictures in reading materials, or videos of full or
partially nude minor children with clearly visible genitals.
4. Any pictures, including pictures in reading materials, or videos of the
unclothed or clothed figure of a minor child posing in a sexually suggestive
posture or sexual manner.
5. Movies rated NC-17 or X.
6. Video games with an Entertainment Software Rating Board (ESRB)
rating of AO.
7. Any pictures, including pictures in reading materials, or videos showing
close-up depictions of
a. sexual intercourse, including any type of vaginal, oral or anal
b. human genitalia in a lewd and explicit fashion;
c. masturbation;
d. excretory functions;
e. sexual relations between a human being and an animal; or
f. sadomasochistic abuse.
8. Pictures, videos or reading materials that, taken as a whole, promote sexual
violence, child molestation, or incest or that, taken as a whole,
predominantly and prominently display nudity, and have the primary
purpose of sexual arousal, in a manner similar to adult oriented sexual
magazines such as Playboy, Penthouse and Hustler.
9. Pictures of the patients victims.
10. Otherwise permitted materials of the type that the patient has misused in the
past, providing that the restriction is proportionate to the misuse.
Materials are designated as counter-therapeutic if they (1) have been determined
for articulated reasons, by the Media Review Team, under the supervision of a competent
mental health professional, to reinforce a problem area related to the sexual offending
cycle of the patient who possesses or seeks to possess the materials; or if they (2) depict
nudity, sexual contact, sadomasochistic abuse, masturbation or excretory functions but
were not categorized as prohibited, and have been determined for articulated reasons, by
a competent mental health professional, to be counter-therapeutic either to a) the patient
who possesses the material, or b) a large number of patients in the Program. (Id.) Any
material that has not been designated as either prohibited or counter-therapeutic is
designated as permitted. (Id.) Movies rated G, PG, or PG-13, and video games
with an ESRB rating of EC, E, E10+, or T are designated as permitted material
without any review by the MSOP staff. (Id.) Movies rated R and video games with an
ESRB rating of M or RP must be reviewed by the MSOP staff to determine the
appropriate classification, which is then compiled into a published list for other patients.
The Kruger Settlement requires MSOP staff to apply the 2007 Policy, rather than
the statutory language of section 246B.04, subdivision 2, in determining whether
materials are allowed or prohibited. (Mooney Aff. 15.)
Ivey is committed to the MSOP facility in St. Peter, Minnesota, as a sexually
psychopathic personality and a sexually dangerous person.5 Shortly after Iveys arrival at
the MSOP, multiple images from his computer were seized pursuant to the 2004 Ban.
After the Kruger Settlement and the implementation of the 2007 Policy, the images that
were seized were reviewed under the new policy. Of the 143 seized images, 127 images
were returned to Ivey and 16 were designated as prohibited material. (Sixth Ivey Aff.,
Docket No. 97, 6-9.) MSOP informed Ivey that the images that were prohibited
depicted (1) oral sex; (2) sexual intercourse; or (3) nude or bare breasted women
depicted with the primary purpose of sexual arousal. (Id. 11.)
Ivey originally brought this action on November 11, 2005, alleging that Minnesota
Statute section 246B.04, subdivision 2 both on its face and as applied violates the
First Amendment of the United States Constitution.6 Following several years of pretrial
proceedings, the Kruger Settlement, and the MSOPs adoption and implementation of the
2007 Policy, both parties filed motions for summary judgment. The Magistrate Judge
now recommends that defendants motion be granted and Iveys motion be denied.
5 See In re Ivey, 687 N.W.2d 666, 667 (Minn. Ct. App. 2004). In 1993, Ivey pleaded
guilty to first-degree burglary, first- and second-degree criminal sexual conduct, and other
offenses. Id. Ivey also confessed to many acts of window peeping and burglary, and
additionally confessed to the 1989 murder and attempted rape of a young woman in Stuttgart,
Germany. Id.
6 Ivey initially brought additional claims, but has stipulated to their dismissal. (See
Docket No. 73.)
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A. Limits of Iveys Facial Challenge to Section 246B.04
In considering the scope of Iveys claim, the Magistrate Judge concluded that Ivey
could not challenge aspects of Minnesota Statute section 246B.04, subdivision 2 that are
not embodied in the 2007 Policy. Specifically, this means that Ivey would not be
permitted to mount a facial challenge against the definitions articulated in Minnesota
Statute section 617.241, subdivision 1, which are incorporated by reference into section
246B.04. The Magistrate Judge reasoned that because subdivision 2 is now enforced
pursuant to the 2007 Policy, any broader challenge would amount to a pre-enforcement
challenge. Even in the First Amendment context, such a challenge presents a justiciable
controversy only if the probability of enforcement is real and substantial. Amatel v.
Reno, 156 F.3d 192, 195 (D.C. Cir. 1998) (internal quotation marks omitted). The
Magistrate Judge concluded that Ivey could not meet that burden as a matter of law,
because the 2007 Policy was established as the operative standard in the Kruger
Ivey now objects to that conclusion, arguing that subdivision 2 uses the term
shall, and therefore prohibits MSOP from changing its terms. However, even where
state actors are subject to non-waivable requirements, a realistic assessment of the
likelihood of [enforcement] is a necessary part of the threshold inquiry concerning
justiciability. Salvation Army v. Dept of Cmty. Affairs of State of N.J., 919 F.2d 183,
192 (3d Cir. 1990). Where the plaintiff seeks a declaratory judgment with respect to the
constitutionality of a state statute, even where the attack is on First Amendment grounds,
there must be a real and immediate threat of enforcement against the plaintiff. Id.
(internal quotation marks omitted). Moreover, this threat must remain real and
immediate throughout the course of the litigation. Id. (internal quotation marks
omitted). Here, the terms of the settlement of the Kruger litigation removed any real
and immediate threat that subdivision 2 unmediated by the 2007 Policy would be
enforced against Ivey. Accordingly, the Court agrees with the Magistrate Judge, and
concludes that Ivey lacks standing to challenge aspects of subdivision 2 that are not
embodied in the 2007 Policy.
B. 2007 Policy
1. Applicable Standard
The Magistrate Judge analyzed the 2007 Policy using a modified version of a test
announced in Turner v. Safley, 482 U.S. 78 (1987). In Turner, the Supreme Court sought
to formulate a standard of review for prisoners constitutional claims that is responsive
both to the policy of judicial restraint regarding prisoner complaints and [to] the need to
protect constitutional rights. Id. at 85 (alteration in original) (internal quotation marks
omitted). The Court announced that when a prison regulation impinges on inmates
constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests. Id. at 89. Here, Ivey is of course not a prisoner, which takes his
case beyond the specific holding in Turner. The Eighth Circuit, however, has indicated
that those who are civilly committed as dangerous persons have limited rights as well.
Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006). While they are entitled to
more considerate treatment and conditions of confinement than prisoners, their liberty
interests are considerably less than those held by members of free society. Id. (internal
quotation marks omitted). Because Ivey has been civilly committed as a sexually
dangerous person, the Magistrate Judge concluded that the appropriate standard to apply
to Iveys claim is a version of the Turner test, moderated to account for the principles
stated in Senty-Haugen.
The Court agrees that this standard is an appropriate standard to apply to Iveys
claim, on the basis of the reasoning set forth by the Magistrate Judge. This Court only
adds that in explaining its approach in Turner, the Supreme Court noted that a prisoner
retains those [constitutional] rights that are not inconsistent with his status as a
prisoner or with the legitimate penological objectives of the corrections system. 482
U.S. at 95 (internal quotation marks omitted) (emphasis added). Here, as is discussed
more fully below, MSOP has provided evidence that access to certain pornographic
materials can trigger relapse among its patients, or otherwise hinder its rehabilitative
efforts. In short, there is a clear conflict between (1) maintaining an institution directed
to rehabilitate sexually dangerous persons and (2) permitting those persons to enjoy
unfettered access to materials that may impede that rehabilitation. That conflict further
supports the application of the deferential test outlined in Turner.7
2. MSOPs 2007 Policy
Turner instructs courts to examine four factors when determining whether the
regulation at issue withstands scrutiny:
(1) whether there is a valid rational connection between the regulation and
the legitimate government interest it purports to further; (2) whether the
inmate has an alternative means of exercising his constitutional right;
(3) the impact that accommodation of the inmates right would have upon
7 Ivey briefly contends that this test should not apply, because the limitations at issue are
ultimately grounded in a statute. In Amatel v. Reno, 156 F.3d 192, 195 (D.C. Cir. 1998),
however, the District of Columbia Circuit applied Turner in a First Amendment case, where as
here a limiting statute was implemented through prison regulations. This is consistent with the
fact that the interests outlined in Turner itself including the security and resource concerns
inherent in custodial settings are implicated regardless of whether an institutions rules are set
entirely by the institutions administrators or whether they implement a statute.
The Court adds, however, that it need not decide whether a modified version of the
Turner test would apply in every claim involving the constitutional rights of the civilly
committed. That test is appropriate here in large part because of the close fit between the
particular constitutional right at issue and MSOPs rehabilitative mission. However, a civil
commitment is significantly different from a criminal conviction. Most importantly, an
individual must not be civilly committed for the purpose of imposing punishment, and the fact of
commitment is not a basis for any punitive measures during the course of the individuals
treatment. Those principles should be kept close at hand in cases concerning the constitutional
rights of civilly committed sex offenders.
others, including inmates as well as non-inmates; and (4) the absence of a
ready alternative to the regulation.
Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024, 1026 (8th Cir. 2004). The burden of
proof in cases governed by Turner falls on the plaintiff. See Abdullah v. Gunter, 949
F.2d 1032, 1035 (8th Cir. 1991).
In adapting and applying the Turner factors, the Magistrate Judge considered
whether MSOPs 2007 Policy is reasonably related to legitimate institutional and
therapeutic interests. The Magistrate Judge concluded that the Policy meets this standard.
The Magistrate Judge first agreed with defendants that the policy furthers two legitimate
goals: 1) to create and maintain an atmosphere that is conducive to the therapeutic goals
of treating Minnesotas most dangerous and compulsive sex offenders; and 2) to reduce
the danger of sexual aggression toward other civilly committed patients or staff
members. (Report and Recommendation at 9-10.) Ivey concedes that these are
legitimate interests.
In determining that the 2007 Policy bears a rational relationship to those goals, the
Magistrate Judge relied extensively on an affidavit from Elizabeth Barbo, Ph.D, LP,
MSOPs director of psychological services. (Barbo Aff.) In particular, the Magistrate
Judge relied on the following statements from Dr. Barbo: (1) avoidance of situations that
may trigger a relapse is a crucial aspect of MSOPs therapeutic program; (2) sexually
arousing material may trigger a relapse among certain patients; (3) sexually graphic
material cannot be allowed on an individual basis, because patients often sell or trade
materials to other patients; and (4) increased exposure to sexually explicit materials is not
consistent with Iveys rehabilitation attempts. (Id. at 13, 18, 21, 30.) Dr. Barbo
supported her conclusions with several scholarly articles indicating that pornography is
associated with sexual aggression, particularly in men with a history of that behavior.
(Barbo Aff. Exs. 1-3.) In light of those views, the Magistrate Judge concluded that the
2007 Policy bears a logical and rational relationship to the goals articulated above.
The Magistrate Judge further concluded that Ivey has adequate alternative means
of accessing materials of a sexual nature. The Magistrate Judge noted that the 2007
Policy does not ban all nudity, but rather excludes the limited categories quoted above.
In addition, the Magistrate Judge noted that the materials returned to Ivey demonstrated
that he had been allowed to retain pictures of a sexual nature. (Sixth Ivey Aff. Ex. 2.)
Finally, the Magistrate Judge indicated that allowing additional materials would
negatively impact the institution, by enabling the sort of trading among patients noted
above, and that the 2007 Policy which, again, was negotiated over the course of
seventeen months following an earlier lawsuit is not an exaggerated response to the
MSOPs therapeutic needs.
Ivey objects to that analysis, arguing that the 2007 Policy fails to precisely define
its parameters and overreaches into much healthy, protected, non-conduct nudity. The
Court disagrees that these are adequate challenges to the Policy under Turner. As to the
specificity of the 2007 Policy, the Policy includes ten numbered clauses that carefully
describe the banned material, as well as specific guidelines for classifying materials as
counter-therapeutic. While those provisions do not make it absolutely clear what
MSOPs decision will be in each and every case, the nature of the subject matter would
make that nearly impossible. In light of the varying histories and therapeutic needs of
MSOPs patients, sorting through what should be allowed and what should not without
implementing a blanket prohibition that would eviscerate the patients rights altogether
is inherently an imprecise and fact-specific task. In those circumstances, the Court agrees
that MSOP in conjunction with the negotiation team that constructed the Kruger
Settlement has established well-supported parameters that are reasonably related to its
legitimate therapeutic and institutional interests.
As to the application of the 2007 Policy, the Court again agrees that Ivey has
failed to supply sufficient evidence of a constitutional violation. As the Magistrate Judge
noted, the record contains pictures that have been returned to Ivey as allowed under the
Policy. (See Sixth Ivey Aff. Ex. 2.) Those pictures indicate that Ivey has continued to
receive access to materials of a sexual nature, and do not demonstrate an unconstitutional
departure from the Policy considered above. In sum, the Court agrees with the
Magistrate Judge that Ivey has failed to supply sufficient evidence that the 2007 Policy
either on its face or as applied violates his constitutional rights as a civilly committed,
sexually dangerous person.8 Accordingly, the Report and Recommendation of the
Magistrate Judge is adopted.
8 Ivey briefly adds that further discovery should be allowed as to MSOPs
implementation of the 2007 Policy. However, as noted above, the record already includes
evidence as to how that Policy was applied to Ivey. Ivey does not address what any further
discovery would demonstrate. Cf. Fed. R. Civ. P. 56(f) (requiring a party opposing summary
judgment as premature to submit an affidavit specifying what it believes it will discover). In
those circumstances, the Court finds no basis for delaying judgment. The Court notes, however,
that this ruling does not foreclose further challenges should MSOP fail to enforce the 2007
Policy in a constitutional manner in the future.
Ivey also objects to the Magistrate Judges Order on a non-dispositive matter. In
support of its motion for summary judgment, the defendants filed affidavits from two
MSOP mental health employees. Ivey argues that those affidavits should have been
stricken because they reveal private health data. The Magistrate Judge denied this
motion, noting that the Federal Rules of Civil Procedure do not provide for motions to
strike affidavits in support of motions for summary judgment, and that the affidavits were
filed pursuant to a Protective Order. (See Docket No. 79.) Ivey now objects, arguing that
the disclosed materials were subject to a therapist-patient privilege.
The standard of review applicable to an appeal of a magistrate judge's order on a
non-dispositive issue is extremely deferential. Reko v. Creative Promotions, Inc., 70
F. Supp. 2d 1005, 1007 (D. Minn. 1999). This Court will reverse such an order only if it
is clearly erroneous or contrary to law. 28 U.S.C. 636(b)(1)(A); Fed. R. Civ. P. 72(a);
Local Rule 72.2(a). Here, when the Magistrate Judge signed the applicable protective
order he gave Ivey nearly three weeks to make any objections. Ivey failed to do so. In
addition, in filing this action and challenging restrictions on access to materials that
may impact his rehabilitation Ivey voluntarily placed his mental condition at issue. See
Minn. R. Civ. P. 35.03. In those circumstances, the Magistrate Judges Order was neither
clearly erroneous nor contrary to law. Accordingly, that Order is affirmed.
Based on the foregoing, all the files, records, and proceedings herein, the Court
OVERRULES plaintiffs objections [Docket No. 111] and ADOPTS the Report and
Recommendation of the Magistrate Judge dated August 18, 2008 [Docket No. 108] and
AFFIRMS the Magistrate Judges Order dated August 18, 2008 [Docket No. 109].
Accordingly: IT IS HEREBY ORDERED that:
1. Plaintiffs Notice of Motion and Cross-Motion for Summary Judgment
[Docket No. 81] is DENIED.
2. Defendants Motion for Summary Judgment [Docket No. 82] is
3. The Magistrate Judges Order dated August 18, 2008 [Docket No. 109] is
DATED: September 30, 2008 ____s/ ____
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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