Richard R. Fageroos, Jr., 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This opinion will be unpublished and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
A18-1692

Richard R. Fageroos, Jr.,
Appellant,

vs.

Tony Lourey, et al.,
Respondents.

Filed June 24, 2019
Affirmed
Bjorkman, Judge

Ramsey County District Court
File No. 62-CV-18-239

Richard R. Fageroos, Jr., Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Ali P. Afsharjavan, Assistant Attorney General, St. Paul,
Minnesota (for respondents)

Considered and decided by Rodenberg, Presiding Judge; Bjorkman, Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant-patient challenges the dismissal of his claims under the Minnesota
Government Data Pract ices Act (MGDPA), Minn. Stat. §§ 13.01 -.90 (2018), and the
Minnesota Health Records Act (MHRA), Minn. Stat. §§ 144.291-.298 (2018), against

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respondents, the commissioner of human services and Minnesota Sex Offender Program
(MSOP) employees. Appellant argues that the district court erred by determining that the
complaint fails to state a claim upon which relief could be granted because he sufficiently
pleaded disclosures in violation of both acts and resulting damages. We affirm.
FACTS
Appellant Richard Fa geroos is confined as a patient at MSOP. On November 2,
2017, he received his MSOP banking account statement in the mail. It contained his
banking information on one side and the banking information of another patient on the
other side. The other patient received the same two-sided statement, including Fageroos’s
information. Fageroos did not authorize his banking statements to be disclosed to anyone
other than himself. He reported the disclosure to a security counselor but did not wish to
have the two-sided statement secured or placed in evidence at that time.
Fageroos subsequently initiated this action against respondent Commissioner Tony
Lourey1 of the Minnesota Department of Humans Services and respondents Cheryl Balluo,
Tina Joseph, and Kris Ber g, in their individual capacities and as MSOP employees. The
complaint alleges that Lourey violated the MHRA and all respondents violated the
MGDPA by disclosing his banking information without his knowledge or consent, and
seeks damages and declaratory a nd injunctive relief. Respondents moved to dismiss for

1 Fageroos named then-commissioner Emily Johnson Piper in his complaint. Tony Lourey
has since replaced Piper as commissioner. Lourey is therefore substituted for Piper as to
Fageroos’s official-capacity claims. See Minn. R. Civ. P. 143.04.

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failure to state a claim upon which relief can be granted . T he district court granted the
motion, dismissing all of Fageroos’s claims with prejudice. Fageroos appeals.
D E C I S I O N
A district cou rt may dismiss a complaint when the plaintiff fails to state a claim
upon which relief can be granted. Minn. R. Civ. P. 12.02(e). On appeal, we review de novo
whether the 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 take the facts alleged in the complaint as
true and draw inferences in favor of the nonmoving party. See Bodah v. Lakeville Motor
Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003) . We review legal questions, such as
immunity and statutory interpretation, de novo. Larson v. Nw. Mut. Life Ins. Co. , 855
N.W.2d 293, 301 (Minn. 2014) (statutory interpretation); Breaker v. Bemidji State Univ. ,
899 N.W.2d 515, 520 (Minn. App. 2017) (immunity).
I. The district court did not err by dismissing Fageroos’s MHRA claim.
The MHRA prohibits the release of a patient’s “health records” without the patient’s
consent or authorization in law. Minn. Stat. § 144.293, subd. 2. The MHRA also creates
a private cause of action against any “person” who negligently or intentionally violates that
provision. Minn. Stat. § 144.298, subd. 2(1).
The district court dismissed Fageroos’s MHRA claim against Lourey because
(1) Lourey is immune from suit for damages in his official capacity and (2) the MHRA
does not provide for injunctive relief. We agree in both respects.
First, immunity bars an MHRA claim for damages against Lourey . A suit against
the commissioner of a state agency is effectively a suit against the state itself and therefore

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barred by sovereign immunity unless the state has expressly or otherwise clearly waived
immunity. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312
(1989); Breaker, 899 N.W.2d at 520. The provision in the MHRA for a private action
against a “person” does not clearly waive sovereign immunity. See Nichols v. State, 858
N.W.2d 773, 777 (Minn. 2015) (holding that permitting suit against “broad categories of
entities” like person, firm, association, corporation, and organization does not waive the
state’s immunity). Fageroos is not entitled to recover damages against Lourey under the
MHRA.
Second, the MHRA does not afford injunctive relief. By its plain terms, the MHRA
provides only one form of relief: “compensatory damages . . . plus costs and reasonable
attorney fees.” Minn. Stat. § 144.298, subd. 2; cf. Minn. Stat. § 13.08 (providing for
damages or injunctive relie f as remed ies for MGDPA violation). “[W]here a statute
expressly provides a particular remedy or remedies, a court must be chary of reading others
into it.” Becker v. Mayo Found., 737 N.W.2d 200, 207 (Minn. 2007) (quotation omitted).
Accordingly, Fageroos’s claim for non -compensatory relief under the MHRA fails as a
matter of law.
II. The district court did not err by dismissing Fageroos’s MGDPA claims.
Under the MGDPA, “[p]rivate or confidential data on an individual shall not be
collected, stored, used, or disseminated by government entities for any purposes other than
those stated to the individual at the time of collection . . . .” Minn. Stat. § 13.05, subd. 4.
To ensure that nonpublic data are only accessible to “ persons whose work assignment
reasonably requires access to the data, ” and only accessed for appropriate purposes, the

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“responsible authority” is charged with “establish[ing] appropriate security safeguards for
all records containing data on individuals.” Id., subd. 5(a)(2). The “responsible authority”
in a state agency or system is “the state official designated by law or by the commissioner
as the individual responsible for the collection, use and dissemination of any set of data on
individuals, government data, or summary data. ” Minn. Stat . § 13.02, subd. 16(a). If “a
responsible authority or government entity” violates “any provision” of the MGDPA, “the
person damaged . . . may bring an action against the responsible authority or government
entity to recover any damages sustained, plus co sts and reasonable attorney fees. ” Minn.
Stat. § 13.08, subd. 1. The MGDPA also provides for injunctive relief against the
responsible authority. Id., subd. 2.
The district court dismissed Fageroos’s MGDPA claims because (1) the MGDPA
does not support a claim against individuals such as Balluo, Berg, and Joseph; (2) Balluo,
Berg, and Joseph are not responsible authorities subject to suit under the MGDPA;
(3) Fageroos failed to plead damages as a result of Lourey’s alleged MGDPA violation;
and (4) Fageroos is not entitled to non-compensatory relief. Again, we agree in all respects.
As noted above, the MGDPA only creates liability on the part of “a responsible
authority or government entity .” Minn. Stat. § 13.08, subd. 1 . Thus, MSOP employees
Balluo, Berg, and Joseph are not subject to suit as individuals. Walker v. Scott County, 518
N.W.2d 76, 78 (Minn. App. 1994) , review denied (Minn. Aug. 24, 1994). Likewise, they
cannot be liable in their official capacities because only Lourey, as the commissi oner, is
the “responsible authority.” Minn. Stat. § 13.02, subd. 16(a). Fageroos emphasizes that

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the three employees are factually “responsible” for disclosing his private banking
information. But that does not make them subject to liability under the MGDPA.
With respect to Lourey, Fageroos challenges the district court’s determination that
he failed to plead damages from the alleged violation. Fageroos contends he did so by
alleging that the disclosure of his banking account information “caused him t o experience
anxiety, emotional distress, and fear of identity theft and fraud.” We disagree. First, t he
complaint contains no such allegations; it states only that Fageroos’s “privacy rights were
violated,” disclosure of “private and protected informati on would be highly offensive to a
reasonable person,” and the disclosure of Fageroos’s banking account information
“inflicted consequences to him” or “inflicted damages upon [him] in excess of $50,000.”
Second, even if Fageroos amended his complaint to conform with his argument on appeal,
it is insufficient. Emotional injury supports relief under the MGDPA only if the “plaintiff[]
prove[s] that [it] occurred under circumstances tending to guarantee its genuineness.”
Navarre v. S. Wash. Cty. Schs., 652 N.W.2d 9, 30 (Minn. 2002). At the pleading stage, the
plaintiff must allege such circumstances , not rely on mere “labels and conclusions ,” see
Bahr v. Capella Univ. , 788 N.W.2d 76, 80 (Minn. 2010) , or speculate that such
circumstances may arise, Jackson v. Reiling , 249 N.W.2d 896, 897 (Minn. 1977)
(precluding “remote” or “speculative” damages) . Fageroos’s complaint did not meet this
standard.
Finally, Fageroos did not state an actionable claim for injunctive relief. The
MGDPA permits an injunction “to prevent the use or employment by any person of any
practices which violate this chapter .” Minn. Stat. § 13.08, subd. 2 ( emphasis added ).

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Fageroos has not identified any type of injunctive relief that would address the limited and
completed disclosure that he alleges. And his claim for declaratory relief fails because he
does not seek a declaration distinct from his substantive claims.
In sum, because Fageroos wholly failed to state a claim for which relief could be
granted under either the MHRA or th e MGDPA, the district court properly dismissed his
complaint with prejudice. See Martens v. Minn. Mining & Mfg. , 616 N.W.2d 732, 748
(Minn. 2000) (approving dismissal with prejudice when complaint “fall[s] far short of the
established requirements”).
Affirmed.