Kevin Scott Karsjens, 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This opinion will be unpublished and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
A18-1538

Kevin Scott Karsjens,
Appellant,

vs.

Tony Lourey, Commissioner of the Department of Human Services,
Respondent,

Shelby Richardson, et al.,
Defendants.

Filed May 28, 2019
Affirmed
Connolly, Judge

Ramsey County District Court
File No. 62-CV-16-5788

Peter Nickitas, Peter Nickitas Law Office, Minneapolis, Minnesota (for appellant)

Keith Ellison, Attorney General, Aaron Winter, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and
Slieter, Judge.

2
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant, a client of the Minnesota Sex Offender Program (MSOP), challenges the
summary judgment dismissing his claims against respondent commissioner of human
services (CHS) under the Minnesota Government Data Practices Act (MGDP A) and the
Minnesota Health Records Act (MHRA). Appellant argues that the district court erred in
determining that there was no triable issue on damages and in failing to consider appellant’s
other claims for relief. Because we see no error, we affirm.
FACTS
Appellant Kevin Karsjens was civilly committed to MSOP as a sexually dangerous
person in 2010.1 The incidents giving rise to this lawsuit allegedly occurred in September
and November, 2016.
In the September incident, another MSOP client, I.L., was erroneously handed six
pages of appellant’s Quarterly Treatment Progress Report (QTPR), along with a set of

1 Since then, he has brought lawsuits in federal and state court. The lawsuits were resolved
by publicly available opinions containing information about appellant. See, e.g., Karsjens
v. Piper, 845 F.3d 394 (8 th Cir. 2017) (providing information about appellant, who was
the lead plaintiff, and reversing Karsjens v. Jesson, 109 F.Supp.3d 1139 (D. Minn. 2015)
(holding, after a six-week trial, that the civil-commitment statute violated due process and
is unconstitutional on its face and as applied) ); Karsjens v. Jesson , No. A13 -1746, 2014
WL 902860 (Minn. App. Mar. 10, 2014) (providing information about appellant’s 30-year
history of sexually assaulting women and affirming the dismissal of his request for
provisional discharge); In re Civil Commitment of Karsjens , No. A10 -0489, 2010 WL
3000723 (Minn. App. Aug. 3, 2010) (providing information about appellant’s history of
sexual offenses and affirming his commitment as a sexually dangerous pe rson (SDP)),
review denied (Minn. Sept. 29, 2010).

3
documents I.L. had requested, by W.R., an MSOP employee. 2 The next day, I.L. noticed
the QTPR pages, separated them from his documents, and gave them to his roommate, who
knew appellant and delivered the p ages to him in his room about ten feet away. It is
undisputed that n either I.L. nor his roommate looked at, read, copied, or otherwise used
the QTPR pages except to see that appellant’s name was on them.
In the November incident, S.H., another MSOP client, retrieved some documents
from his mailbox. A week later, he looked through the documents and discovered that one
of them had appellant’s name and client number on it. It is undisputed that he immediately
gave that document to appellant, without reading it or copying it.
Based on these incidents, appellant brought claims under the MGDPA and under
the MHRA. Respondent moved for summary judgment. The district court granted the
motion on the ground that appellant had produced no evidence that he was damaged by the
alleged disclosures. Appellant challenges the grant of summary judgment, arguing that
the district court erred based on its conclusion that he failed to show either a genuine issue
of material fact in regard to his alleged damages or his entitlement to equitable relief.
D E C I S I O N
Standard of Review

On appeal from summary judgment, this court reviews de novo both whether there
are any genuine issues of material fact and whether the district court erred in its application

2 While the district court dismissed appellant’s MHRA claim against Robinson, appellant
does not appear to challenge that dismissal in his brief. Arguments not briefed on appeal
are waived. State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied
(Minn. Aug. 5, 1997).

4
of the law. STAR Centers, Inc. v. Faegre & Benson, L.L.P ., 644 N.W.2d 72, 77 (Minn.
2002). There is no genuine issue of material fact “when the nonmoving party presents
evidence which merely creates a metaphysical doubt as to a factual issue and which is not
sufficiently probative with respect to an essential element of the nonmoving party’s case
to permit reasonable persons to draw different conclusions.” DLH, Inc. v. Russ , 566
N.W.2d 60, 71 (Minn. 1997). “A defendant is entitled to summary judgment as a matter
of law when the record reflects a complete lack of proof on an essentia l element of the
plaintiff’s claim.” Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).
1. Damages
Damages are an essential element of a claim under both the MGDPA and the
MHRA. See Minn. Stat. §13.08, subd. 1 (2018) (“[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.”); Minn. Stat. § 144.298, subd. 2 (2018) (A person who
“negligently or intentionally. . . releases a health record in violation of sections 144.291 to
144.297” is liable to the patient for compensatory damages ca used by an unauthorized
release).
[A] plaintiff can recover damages for emotional harm under
the MGDPA. However, a plaintiff must still satisfy the
standard of proof necessary to recover such damages for
emotional harm. . . . [But] claims of mental anguish may be
speculative and so likely to lead to fictitious allegations that
there is a potential for abuse of the judicial process. . . . [W]e
have been careful to limit the availability of such damages to
those plaintiffs who prove that emotional injury occurred under
circumstances tending to guarantee its genuineness.

5
Navarre v. S. Washington C ty. Sch. , 652 N.W.2d 9, 29 -30, (Minn. 2002) (quotations
omitted) (holding that, in cases involving violation of a statutory right, emotional -distress
damages are not recoverable without evidence of verifiable physical injury or severe
emotional distress); see also Lickteig v. Alde rson, Ondov, Leonard & Sween, P.A. , 556
N.W.2d 557, 560 (Minn. 1996) (holding that a plaintiff must “prove that emotional injury
occurred under circumstances tending to guarantee its genuineness”) (quotation omitted).
Here, the disclosures at issue involved much less information about appell ant than
is and has been publicly available for years in appellant’s civil-commitment documents, in
opinions of this court, and in the federal district court opinions in which appellant was the
lead plaintiff in a class-action suit.
The district court addressed appellant’s allegations that, as a result of the incidents,
he had suffered anxiety, apprehension, anger, fear of identity theft, and emotional distress.
24. [Appellant] described his claim of anxiety as
“manifested by worry and fear that the inf ormation that was
given out will somehow cause me some kind of things
happening to me in the future, costing me money, [consisting
of] false statements against me. It’s just the unknown, fear of
the unknown . . . .”
25. [Appellant’s] “apprehension” was re lated to his
concern that he would have one of the documents “coming
against [him] somehow.” [Appellant’s] “anger” was related
to his belief that MSOP staff should be more careful.
[Appellant] stated that he believed the information in his
QTPR could be used by a bad actor to apply for a loan, credit
card, or ID in his name, or to commit a crime and be identified
as [appellant].
. . . .
27. [Appellant] has no evidence that [any MSOP
personnel and clients involved in the incidents] obtained or
used any information from the QTPR in an inappropriate way,
. . . used any of the information from the QTPR in an

6
inappropriate way, . . . used [appellant’s] Client ID in an
inappropriate way, and no evidence that anyone other than
[those involved] saw any of [appel lant’s] private data as a
result of the data disclosures.
28. [Appellant] has no medical determination that
any anxiety he claims to have experienced is related to either
of the disclosures in this case.

Based on these findings, the district court concluded that “[appellant] has failed to
put forth evidence establishing that his claimed emotional distress damages, if any, were
severe” and concluded that the MGDPA claims should be dismissed because there was no
genuine issue of material fact as to da mages. As to the MHRA claims, the district court
concluded that “[appellant] has failed to put forth evidence establishing that his claimed
emotional distress damages occurred under circumstances guaranteeing their genuineness”
because “[m]any reports relating to [appellant’s] treatment and status at MSOP have been
introduced and made publicly available in a number of prior court matters” and “[t]he three
MSOP clients involved [in] handling the documents in question . . . clearly did not use,
retain, or transfer any private information.” The district court then concluded that there
was no genuine issue of material fact as to whether circumstances guaranteed the
genuineness of appellant’s alleged emotional injury and that respondents were entitled to
summary judgment as a matter of law.
Appellant relies on Shqeirat v. U.S. Airways Group, Inc., 515 F. Supp. 2d 984, 998
(D. Minn. 2007) (holding that fear of identity theft resulting from disclosure of a social
security number is sufficient support for an emot ional distress claim) to support his view
that fear of identity theft resulting from disclosure of a MSOP identity number will support
an emotional distress claim. But he does not refute the district court’s observation that

7
“[t]here is no scenario put forth by [appellant], nor one this [c]ourt can conceive, in which
[appellant’s] Client ID or any of the information in his QTPR could be used to steal his
identity.”3
2. Equitable Relief
Appellant argues that the district court erred by dismissing his claim s for equitable
relief, i.e., an injunction “against any MSOP staff from commingling clients’ mail, ”
exemplary damages, or a declaratory judgment.
Appellant did not make the showing of irremediable damage or irreparable injury
needed before an injunction may be issued. See Matter of Minneapolis Cmty. Dev. Agency
of Certain Lands in C ity of Minneapolis , 403 N.W.2d 310, 313 (Minn. App. 1987).
Without such a showing, the district court did not err in declining to issue an injunction.
Exemplary damages are available only for willful violations of the MGDPA. Minn.
Stat. § 13.08, subd. 1 . Appellant did not produce any evidence or argue that any of the
claimed violations was willful. T he district court correctly concluded that, because
appellant “has no evidence that either alleged violation was willful,” there was no genuine
issue of material fact and respondent was entitled to summary judgment as a matter of law.
As to appellant’s claim f or declaratory relief, respondent asserts that appellant did
not raise it to the district court, and appellant does not refute this assertion. Therefore, the

3 Appellant also relies on a law-review article to support his argument, but does not explain
why a law-review article would be controlling precedent for an appellate court.

8

argument is not properly before us, and we do not address it. See Thiele v. Stich , 425
N.W.2d 580, 582 (Minn. 1988).
Affirmed.