Jason Rhoades, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1120

Jason Rhoades,
Appellant,

vs.

Tony Lourey, et al.,
Respondents.

Filed March 4, 2019
Affirmed
Florey, Judge

Carlton County District Court
File No. 09-CV-17-2740

Jason Rhoades, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney General, R.J. Detrick, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Schellhas, Judge; and John P.
Smith, Judge.*
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant, a patient in the Minnesota Sex Offender Program (MSOP), challenges
the district court’s dismissal of his claims under the Minnesota Health Records Act

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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(MHRA), Minn . Stat. § § 144.291-.298 (2018), and the Minnesota Government Data
Practices Act (MGDPA), Minn. Stat. §§ 13.01-.90 (2018). We affirm.
FACTS
Appellant Jason Rhoades is a patient committed to MSOP in Moose Lake. He must
register as a predatory offender with the Bu reau of Criminal Apprehension (BCA) using
an address verification form. Appellant alleges that his BCA form was disseminated to
MSOP patients and employees , in contradiction to MSOP policies on the handling of
privileged mail.
Pursuant to the MHRA and MGDPA, he sued respondents Emily Johnson Piper, the
former commissioner of the Minnesota Department of Human Services (DHS), and Nancy
Johnston, the executive director of MSOP, in their official and individual capacities. 1 He
alleged that they failed to dr aft and implement effective policies and failed to train
employees on the handling of privileged mail.
Appellant claimed that the BCA form was mailed to him, but it was delivered to “a
different patient” and “became unsecured within the MSOP facility for an extended period
of time.”2 He claimed that agents of DHS and MSOP acted with indifference, minimize d

1 Tony Lourey replaced Emily Johnson Piper as commissioner. He is therefore substituted
for her in appellant’s official-capacity claims. See Minn. R. Civ. P. 143.04.
2 Appellant argues that the district court misstated the factual record in its order by stating
that appellant “opened the verification form.” In his complaint, appellant alleged that the
envelope was open when it was delivered to him. While the district court’s finding that
appellant opened the envelope is inconsistent with the allegation in the complaint and
therefore erroneous, the finding is not germane to the bases for dismissal, and the error
therefore is de minimis. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985)
(declining to remand for de minimis technical error).

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the seriousness of the violation, and failed to report the incident, as required by MSOP
policy. Appellant alleged that respondents failed to notify him of the data breach.
The BCA form included the following information: full name, current address, date
of birth, height, weight, eye color, hair color, Minnesota driver’s license number, Social
Security number, place of employment, employer’s address, F ederal Bureau of
Investigation (FBI) number, Minnesota prison offender identification number, and BCA
number.
Respondents moved to dismiss appellant’s MGDPA claim s against Piper, in her
official capacity, without prejudice, and moved to dismiss appellant ’s remaining claims
with prejudice. Respondents asserted that appellant’s MHRA claim s were deficient
because the MHRA does not permit a suit against respondents in their official capacities,
and appellant alleged neither the release of a “health record ,” nor that respondents
“personally” released the BCA form . Respondents asserted that the MGDPA does not
allow for individual-capacity claims against them and allows for only an official-capacity
claim against the commissioner. Respondents claimed that both appellant’s MHRA and
MGDPA claims are deficient because appellant failed to plead any damages.
The district court dismissed appellant’s claims with prejudice. The court dismissed
the MHRA claims because the BCA form is not a “health record,” and, further, the MHRA
does not allow for a cause of action against the state. The court dismissed the MGDPA
claims because, although the MGDPA applies to state actors, appellant failed both to allege
a sufficient injury and to properly plead punitive damages. This appeal followed.

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D E C I S I O N
A complaint must “contain a short and plain statement of the claim showing that the
pleader is entitled to relief and a demand for judgment for the relief sought.” Minn. R. Civ.
P. 8.01. A party may move to dismiss a complaint for failure to state a claim upon which
relief can be granted. Minn. R. Civ. P. 12.02(e). “We review de novo whether a complaint
sets forth a legally sufficient claim for relief.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598,
606 (Minn. 2014). We must accept the allegations contained in the complaint as true. Id.
Whether the plaintiff can prove the alleged facts is immaterial to our analysis. Elzie v.
Comm’r of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980). We will not uphold a dismissal
“if it is possible on any evidence which might be produced, consistent with the pleader ’s
theory, to grant the relief demanded.” Martens v. Minn. Mining & Mfg. Co. , 616 N.W.2d
732, 739-40 (Minn. 2000) (quotation omitted).
I. Appellant’s MHRA claims are deficient because the BCA form is not a “health
record.”

We begin with appellant’s MHRA claim s. The MHRA governs the release and
disclosure of “health records” and imposes liability on “[a] person” who negligently or
intentionally releases a health record in violation of MHRA guidelines. Minn. Stat.
§§ 144.293, subd. 1-2, .298, subd. 2(1).
We agree with the district court’s conclusion that t he BCA form is not a “health
record.” We review the application of a statute to undisputed facts de novo. Davies v. W.
Publ’g Co. , 622 N.W.2d 836, 841 (Minn. App. 2001) , review denied (Minn. May 29,
2001); see also Ill. Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 803 (Minn. 2004).

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A health record is defined as “any information . . . that relates to the past, present, or future
physical or mental health or condition of a patient; the provision of health care to a patient;
or the past, present, or future payment for the provision of health care to a patient.” Minn.
Stat. § 144.291, subd. 2(c).
The BCA form does not contain information relating to appellant’s physical or
mental health , the provision of health care , or payment for health care . Appellant
acknowledges that the BCA form “does not constit ute a ‘health record,’” but argues that
someone could “deduce” he is a patient at MSOP based upon his name and address.
Appellant, in effect, seeks to expand the “health record” definition to include information
from which a person’s status as a patient c ould be inferred, but we will not read into a
statute language that is not present. See Reiter v. Kiffmeyer, 721 N.W.2d 908, 911 (Minn.
2006) (“[W]e will not read into a statute a provision that the legislature has omitted, either
purposely or inadvertently.”). Under the plain language of Minn. Stat. § 144.291, subd.
2(c), appellant’s BCA form is not a “health record.”
II. Appellant’s MGDPA claims fail because he did not sufficiently plead “any
damage.”

We next address appellant’s MGDPA claims. Appellant conceded below that he is
only raising official-capacity claims against the commissioner. The district court found as
much, and appellant does not challenge that finding on appeal. Therefore, we review only
the official-capacity MGDPA claims aga inst respondent commissioner. See Walker v.
Scott County, 518 N.W.2d 76, 78 (Minn. App. 1994) (stating that the MGDPA “does not
impose civil liability on individuals”), review denied (Minn. Aug. 24, 1994).

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The MGDPA governs the dissemination of “government data,” which is defined as
“all data collected, created, received, maintained or dissemin ated by any government
entity.” Minn. Stat. § 13.02, subd. 7. The MGDPA offers civil remedies for persons who
suffer damages due to a violation of its provisions:
[A] responsible authority or government entity which violates
any provision of this chapter is liable to a person . . . who
suffers any damage as a result of the violation, and the person
damaged . . . may bring an action against the responsible
authority or government entity to cover any damages sustained,
plus costs and reasonable attorney fees. In the case of a willful
violation, the government entity shall, in addition, be liable to
exemplary damages . . . .

Minn. Stat. § 13.08, subd. 1. The district court concluded that appellant’s MGDPA claims
were deficient because appellant failed both to plead an injury-in-fact entitling him to
compensatory damages and to properly plead punitive damages. We begin with whether
appellant pleaded an injury-in-fact, and more specifically, whether appellant pleaded “any
damage.”
Assuming that respondent commissioner qualifies as a liable party for failing to
draft and implement effective policies and to train employees on the handling of privileged
mail, under section 13.08, subdivision 1, appellant’s MGDPA claim is sufficient if there is
“any damage” resulting from the violation. This broad language permits recovery for
emotional harm, but requires a claim of some injury-in-fact. See Navarre v. S. Wash. Cty.
Schs, 652 N.W.2d 9, 30 (Minn. 2002); see also Moubry v. Indep. Sch. Dist. 696, Ely, Minn.,
9 F. Supp. 2d 1086, 1112 (D. Minn. 1998) (stating that a plaintiff “ must establish that he
has suffered some injury-in-fact”).

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Appellant pleaded that he “suffered, and may in the future suffer injury as a direct
and proximate result of the public dissemination.” He pleaded financial worry, mental
anguish, and emotional suffering . He noted the potential for “future identity theft ,” that
the data breach “may result in pecuniary liability,” and claimed “mental anguish and
emotional suffering due to grieving over the statutory deprivation of privacy rights.” While
we recognize that the broad language under section 1 3.08, subdivision 1, permits a claim
for “any damage,” we conclude that appellant has failed to state a legally sufficient claim
for relief.
Although a ppellant claimed that he suffered injury and may i n the future suffer
injury, these are mere conclusory assertions . “A plaintiff must provide more than labels
and conclusions.” Bahr v. Capella Univ., 788 N.W.2d 76, 80 (Minn. 2010). Appellant’s
claims of potential future identity theft and pecuniary loss do not support an MGDPA
claim. “Damages which are remote and speculat ive cannot be recovered. ” Jackson v.
Reiling, 249 N.W.2d 896, 897 (Minn. 1977).
Appellant pleaded that he suffered financial worry, emotional distress, anguish, and
grief over the deprivation of his privacy rights, however, under appellant’s theory of the
case, he has failed to state a legally sufficient claim for emotional damages. “[H] urt
feelings, anger and frustration are part of life [and are] not the types of harm that could
support a mental anguish award.” Brady v. Fort Bend County, 145 F.3d 691, 718 (5th Cir.
1998) (quotation omitted).
Appellant’s claims of injury are qualitatively different from other claims that have
survived dismissal. In Shqeirat v. U.S. Airways Group, Inc. , for example, an MGDPA

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claim was allowed to proceed where the plaintiff claimed to have suffered emotional harm
after his Social Security number was rel eased through the Internet. 515 F. Supp. 2d 984,
991, 997-98 (D. Minn. 2007). Unlike the dissemination in Shqeirat, appellant’s BCA form
never left the MSOP system, and appellant acknowledges in his complaint that designated
MSOP staff were obligated by policy to open privileged mail “in the client’s presence,
removing and scanning the contents an d envelope to ensure [there is] no contraband.” In
other words, even if the MSOP mail policies had been rigorously followed, appellant’s
BCA form would not have remained completely private.
In Navarre, the supreme court held that there was sufficient evidence for a jury
determination on an emotional -damage claim based upon conclusory testimony
unsubstantiated by any medical testimony. 652 N.W.2d at 30. But , unlike here, the
disclosures received media coverage . Id. at 17-18. And the testimony at trial indicated
that the media coverage caused the plaintiff-teacher emotional distress and fear of
reputational harm. Id. at 19. Here, again, the BCA form did not escape the confines of the
MSOP system.
The Navarre court expressed its hesitation about expanding the availability of
emotional-distress damages because of concerns over speculative and fictitious allegations.
Id. at 30. The supreme court noted that such damages are only available “to those plaintiffs
who prove that emotional injury occurred under circumstances tending to guara ntee its
genuineness.” Id. (quotation omitted). Appellant’s claims lack the necessary
“circumstances” referenced in Navarre, and we conclude that no evidence cou ld be
produced consistent with appellant’s theory of emotional damage to entitle him to relief.

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See Martens, 616 N.W.2d at 739 -40. Therefore appellant has failed to sufficiently plead
“any damage.” See Minn. Stat. § 13.08, subd. 1.
We next address t he district court ’s finding that appellant failed to properly plead
punitive damages. In addition to compensatory damages, exemplary or punitive damages
are permitted under the MGDPA for “willful violation[s].” Id. It is unclear whether section
13.08, subdivision 1, permits exemplary damages in the absence of “any damage.”
“Generally, in Minnesota, outside a defamation context, punitive damages are permitted
only when actual or compensatory damages are also present.” Kohler v. Fletcher, 442
N.W.2d 169, 173 (Minn. App. 1989), review denied (Minn. Aug. 25, 1989). Regardless,
we conclude that appellant forfeited any challenge to the dismissal of his punitive-damages
claim.
The district court concluded that a ppellant failed to follow the pleading guidelines
for seeking exemplary damages set forth in Minn. Stat. § 549.191 (2018) . Under section
549.191:
Upon commencement of a civil action, the complaint
must not seek punitive damages. After filing the suit a party
may make a motion to amend the pleadings to claim punitive
damages. The motion must allege the applicable legal basi s
under section 549.20 or other law for awarding punitive
damages in the action and must be accompanied by one or
more affidavits showing the factual basis for the claim. At the
hearing on the motion, if the court finds prima facie evidence
in support of the motion, the court shall grant the moving party
permission to amend the pleadings to claim punitive damages.

The district court relied upon Backlund v. City of Duluth, in concluding that appellant was
obligated to comply with the pleading requirements of section 549.191, but the Backlund

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court specifically noted that it did not reach the issue of whether a plaintiff “could originally
plead a claim for punitive damages without first obtaining leave” from the district court.
176 F.R.D. 316, 323 n.5 (D. M inn. 1997). Still, a ppellant does not challenge the district
court’s application of section 549.191, but merely asserts on appeal that he sought, not only
exemplary damages, but also compensatory damages. Because appellant does not
challenge the district court’s application of section 549.191 , and appellant has not briefed
the issue on appeal, the issue is forfeited. See Dep’t of Labor & Indus. v. Wintz Parcel
Drivers, Inc. , 558 N.W.2d 480, 480 (Minn. 1997) (declining to address inadequately
briefed issu e); Middle River -Snake River Watershed Dist. v. Dennis Drewes, Inc. , 692
N.W.2d 87, 91-92 (Minn. App. 2005) (concluding that challenge to district court’s legal
conclusion was waived because the issue was not briefed); DLH, Inc. v. Russ, 544 N.W.2d
326, 330 (Minn. App. 1996) (ruling that issue not raised on appeal was waived), aff’d, 566
N.W.2d 60 (Minn. 1997). Appellant failed to sufficiently plead “any damage,” and to the
degree that he was permitted to seek punitive damages in the absence of actual damages,
he forfeited any challenge to the dismissal of that claim.
III. The district court did not abuse its discretion by dismissing appellant’s claims
with prejudice.

Lastly, appellant argues that the district court abused its discretion by dismissing his
claims with prejudice. We review a dismissal with prejudice for an abuse of discretion.
Mercer v. Andersen, 715 N.W.2d 114, 120 (Minn. App. 2006). “Where a complaint fails
to state a cla im upon which relief can be granted for purposes of [r]ule 12.02(e) . . . ,
dismissal with prejudice and on the merits is appropriate.” Martens, 616 N.W.2d at 735.

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Given that dismissal with prejudice has been specifically directed by our supreme court for
claims that “fall far short of the established [pleading] requirements,” the district court did
not abuse its discretion. See id. at 748.
Affirmed.