Peter Gerard Lonergan, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0816

Peter Gerard Lonergan,
Appellant,

vs.

Nancy Johnston, et al.,
Respondents.

Filed April 11, 2022
Affirmed
Cleary, Judge*

Ramsey County District Court
File No. 62-CV-20-1097

Peter Gerard Lonergan, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Drew Bredeson, Brandon Boese, Assistant Attorneys
General, St. Paul, Minnesota (for respondents)

Considered and decided by Slieter, Presiding Judge; Connolly, Judge; and Cleary,
Judge.
NONPRECEDENTIAL OPINION
CLEARY, Judge
Appellant, Peter Gerard Lonergan, challenges the district court’s dismissal of his
suit against respondents, multiple Minnesota Sex Offender Program (MSOP) officials, for

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
failure to state a claim upon which relief could be granted. Appellant argues the district
court erred by dismissing his complaint because (a) it failed to liberally construe his
pleadings; (b) it erred by determining Minn. Stat. § 144.651 (2020), the Patient Bill of
Rights (PBR) does not create a private cause of action; and (c) appellant has the right to
pursue recovery through a personal-injury tort claim. Appellant also argues the district
court erred in denying his temporary restraining order (TRO) and makes a series of
arguments in his reply brief. Because PBR does not create a private cause of action and
appellant’s complaint asserted no other legitimate cause of action, we affirm.
FACTS
Appellant is a civilly committed sex offender residing in an MSOP facility. MSOP
has used a series of vendors, but now contracts with T.W. Vending to provide canteen items
within the facility and Thrifty White Pharmacy to supply over the counter medications and
other medical supplies. MSOP has policies that limit the approved vendors MSOP patients
can purchase items from and contends these policies are meant “to maintain the therapeutic
environment and ensure the safety and security of clients, staff, and the public.”
Appellant started this case in February 2020, by filing a complaint in Ramsey
County District Court against MSOP’s executive director and other staff, and immediately
seeking a TRO, because MSOP staff confiscated as contraband two mugs appellant bought
from a non-approved vendor.
Appellant’s complaint stated PBR gives him “the right to contract with any
commercial or private vendor of his choosing” and each named respondent restricted this
right. See Minn. Stat. § 144.651, subd. 24. Appellant argued this violation of PBR caused
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a violation of a series of constitutional rights. In relevant part, appellant sought (1) for
MSOP’s unlawful conduct to be declared “illegal and in violation of Minnesota Statutory
Law, the Minnesota Constitution, United States Constitution and common law basic human
rights claims”; (2) for respondents to be “enjoined from engaging in the same or similar
practices”; (3) for the repeal of policies restricting appellant’s rights and privileges to select
a vendor of his choice; and (4) an order requiring MSOP to permit appellant to purchase
“necessary hygiene, over-the-counter medications, snack items, and other allowable
property items through any reputable commercial company of his choice.”1 Simultaneously
with filing the c omplaint, appellant petitioned for a TRO to enjoin enforcement of the
vendor selection policy.
The district court denied appellant’s TRO petition after applying the requisite five-
factor test. See Dahlberg Bros., Inc. v. Ford Motor Co., 137 N.W.2d 314, 321–22 (Minn.
1965) (providing the five-factor test). The district court determined “the application of the
Dahlberg factors do not favor granting a [TRO]” and that “the most significant factor by
far is the likelihood of success on the merits—which [appellant] has failed to demonstrate
at this early stage.”
After the district court denied the TRO, respondents moved to dismiss the complaint
because Favors v. Kneisel, 902 N.W.2d 92 (Minn. App. 2017), foreclosed appellant’s
primary claim. Appellant argued his case is distinguishable from Favors, sought

1 Appellant also sought to recover actual damages ($57.33), compensatory damages “in an
amount to exceed $50,000.00,” pre- and post-judgment interest, costs, and attorney fees,
and all other relief allowed by law and equity.
4
permission from the district court to request reconsideration on its TRO decision, moved
for special accommodations to have internet access to prepare for this case, and moved to
strike statements from respondents and respondents’ memorandum of law supporting
dismissal because he claimed they were perjured. After oral arguments, the district court
granted respondents’ motion to dismiss, determining PBR does not create a private cause
of action and appellant’s claimed injuries did not rise to the level of constitutional
violations. The district court also denied all of appellant’s other motions determining there
were “no compelling circumstances to allow a motion to reconsider the TRO denial. ”
Granting respondents’ motion to dismiss made appellant’s request for special access and
motion to strike moot.
This appeal follows.
DECISION
Appellant challenges both the district court’s dismissal of his complaint and denial
of his TRO, and also asserts several arguments in his reply brief. We address each issue in
turn.
I. The district court did not err by dismissing appellant’s complaint for failure
to state a claim upon which relief could be granted.
“We review a district court’s grant of a motion to dismiss for failure to state a claim
and a motion for judgment on the pleadings de novo to determine whether the pleadings
set forth a legally sufficient claim for relief.” Abel v. Abbot Nw. Hosp., 947 N.W.2d 58, 68
(Minn. 2020) (citations omitted). “The reviewing court must consider only the facts alleged
in the complaint, accepting those facts as true and must construe all reasonable inferences
5
in favor of the nonmoving party.” Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d
550, 553 (Minn. 2003). We also review the legal sufficiency of the claim de novo. Graphic
Commc’ns Loc. 1B Health & Welfare Fund A v. CVS Caremark Corp., 850 N.W.2d 682,
692 (Minn. 2014).
a. The district court did not fail to liberally construe appellant’s
complaint.
Appellant claims the district court failed to liberally construe his pro se pleadings to
identify his personal injury, and to identify his implication that the Minnesota Human
Rights Acts (MHRA) functions with PBR to create a private cause of action.
We have recognized that pro se pleadings are to be liberally construed. State ex rel.
Farrington v. Rigg, 107 N.W.2d 841, 841– 42 (Minn. 1961) (stating “great liberality” is
extended to pro se pleadings). Even so, “[p]ro se litigants are generally held to the same
standards as attorneys.” Heinsch v. Lot 27, Block 1 For’s Beach, 399 N.W.2d 107, 109
(Minn. App. 1987). “The Minnesota Rules of Civil Procedure require that a civil complaint
‘contain a short and plain statement of the claim showing that the pleader is entitled to
relief.’ A complaint should put a ‘defendant on notice of the claims against him.’” Dean v.
City of Winona, 868 N.W.2d 1, 8 (Minn. 2015) (quoting Minn. R. Civ. P. 8.01; Mumm v.
Mornson, 708 N.W.2d 475, 481 (Minn. 2006)).
In its dismissal order, the district court stated it could not consider any claims under
MHRA because appellant did “not make reference to [MHRA] , nor common law torts,
beyond ‘Common Law international Human Rights’” in his complaint. Like the district
6
court, we find no reference or argument based on MHRA in appellant’s complaint. The
district court did not fail to liberally construe appellant’s complaint.2
b. PBR does not create an implied private cause of action.
Whether a statute creates a private cause of action is a question of statutory
interpretation reviewed de novo. Becker v. Mayo Found., 737 N.W.2d 200, 207 (Minn.
2007). A statute creates a private cause of action only if “the language of the statute is
explicit or it can be determined by clear impli cation.” Id. We consider the Cort factors to
determine whether a statute creates an implied private cause of action: “(1) whether the
plaintiff belongs to the class for whose benefit the statute was enacted; (2) whether the
legislature indicated an intent to create or deny a remedy; and (3) whether implying a
remedy would be consistent with the underlying purposes of the legislative enactment.”
Favors, 902 N.W.2d at 95 (citing Flour Exch. Bldg. Corp. v. State , 524 N.W.2d 496, 499
(Minn. App. 1994) (referencing the “Cort factors” and citing Cort v. Ash, 422 U.S. 66, 78
(1975)), rev. denied (Minn. Feb. 14, 1995)).
Appellant argues the legislature created a private cause of action by implication
based on the special relationship between appellant and respondents, and PBR’s language.
PBR gives patients a “right to independent personal decisions and knowledge of available
choices shall not be infringed.” Minn. Stat. § 144.651, subd. 1. Appellant seems to argue

2 Appellant also claims if his pleadings were unclear, the district court should have ordered
him to amend the complaint. But appellant cites no authority supporting this contention, so
we decline to address the issue. See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1
(Minn. App. 1994) (stating the court of appeals declines to address allegations unsupported
by legal analysis or citation).
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this right to personal decisions combines with PBR subdivision 24 to create a right for
patients to choose from any supplier or vendor to purchase goods. See Minn. Stat.
§ 144.651, subd. 24 (stating patients can buy goods not already provided “from the supplier
of their choice unless otherwise provided by law”). Under his interpretation of the statute,
appellant contends MSOP’s failure to allow him his choice of vendors violates PBR and
causes a personal injury, and because he alleged the necessary facts in his pleadings to
show a personal injury, his claim should not have been dismissed.
3 Respondents, relying
on Favors, contend that PBR does not create a private cause of action. See 902 N.W.2d at
92.
Favors is instructive and precedential. Favors, like appellant, was civilly committed
to MSOP and filed a complaint against MSOP employees alleging they violated PBR by
denying his request for a cassette recorder. Id. at 94. The respondents in Favors moved to
dismiss the complaint for failure to state a claim upon which relief could be granted because
PBR does not create a private cause of action. Id. After analyzing the Cort factors, we held
“[t]he district court did not err in dismissing [Favor’s] complaint . . . for failure to state a
claim upon which relief may be granted because [PBR] does not create a private cause of
action.” Id.
The analysis we provided in Favors applies to appellant’s case. First, appellant, “as
a civilly committed patient at an inpatient facility for an indeterminate period of time,”

3 Appellant’s argument on this issue does not identify or address the Cort factors, the
appropriate test. Instead, appellant conducted a more general statutory interpretation
analysis.
8
belongs “to the class of people for whose benefit [PBR] was established, satisfying the first
[private-cause-of-action] factor.” See id. The first Cort factor is met.
Second, the statutory language in PBR has not substantially changed since the
Favors decision in 2017, so there still “is no indication, based upon a review of the plain
statutory language of the PBR, that the legislature intended to create a private cause of
action for civilly committed patients at an inpatient facility.” See id. The second Cort factor
is not met.
Finally, PBR still provides a specific grievance procedure for patients to use when
a facility does not comply with PBR. See Minn. Stat. 144.651, subd. 20 (providing PBR’s
grievance procedure). “Implying a remedy would be inconsistent with [PBR’s] underlying
purpose,” because “[c]ourts are reluctant to imply a private cause of action where a statute
has explicitly provided for an alternative remedy.” See Favors, 902 N.W.2d at 94 (citing
Becker, 737 N.W.2d at 207 (“[I]t is an elemental canon of statutory construction that where
a statute expressly provides a particular remedy or remedies, a court must be chary of
reading others into it.”)). Additionally, as we explained in Favors, the legislature
demonstrated that it did not intend to create a private cause of action “[b]y providing that
the commissioner of health has exclusive authority to enforce [PBR] and that the issuance
of such a correction order does not expand the patient’s right to seek redress beyond the
grievance procedures set forth in [PBR] subdivision 20.” See id. at 96. The third Cort factor
is not met.
Appellant suggests his situation differs from Favors’ because, unlike the denial of a
cassette recorder, the denial of appellant’s mugs involves “personal care” and PBR
9
provides a right to appropriate personal care. Appellant’s argument is not persuasive
because it fails to recognize that our analysis of the Cort factors is not impacted by the
different underlying factual situation that caused appellant to sue MSOP staff. Instead,
application of the Cort factors shows PBR does not create an implied private cause of
action.
4 The district court did not err by determining PBR does not create a private cause
of action.
c. Appellant cannot seek redress through a personal injury tort.
Appellant argues that as a civilly committed patient, he has the same rights as a
pretrial detainee, so respondents owe him a duty not to punish, harm, or hold him in unsafe
conditions. Appellant contends MSOP , in denying him personal hygiene items for over a
year, violated these duties, making respondents liable for his injury. Appellant did not
present this argument, and it was not considered by the district court, so it is not amenable
to appellate review, and we decline to address this argument. See Thiele v. Stich, 425
N.W.2d 580, 582 (Minn. 1988) (“A reviewing court must generally consider only those
issues that the record shows were presented and considered by the trial court in deciding
the matter before it.” (quotation omitted)).

4 Before Favors no precedential case law on this issue existed, but there are multiple
nonprecedential cases holding PBR does not create a private cause of action for inpatients.
See, e.g., Kunshier v. Minnesota Sex Offender Program , No. A09-0133, 2009 WL
3364217, at *7 (Minn. App. Oct. 20, 2009); Semler v. Ludeman, No. A08-1477, 2009 WL
2497697, at *3 (Minn. App. Aug. 18, 2009) Woodruff v. Ludeman, No. A06-1659, 2007
WL 4390446, at *2 (Minn. App. Dec. 18, 2007).

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In sum, appellant included no arguments about a cause of action arising under the
MHRA or a personal injury tort in his complaint and PBR does not have an implied private
cause of action. Appellant’s complaint included no claim upon which relief could be
granted, so the district court did not err in dismissing appellant’s complaint.
II. The district court did not err by denying appellant’s petition for a TRO.
We review a district court’s decisions about a TRO for abuse of discretion. Carl
Bolander & Sons Co. v. City of Minneapolis , 502 N.W.2d 203, 209 (Minn. 19 93). We
review the decision “as favorably as possible to the party who prevailed below.” Hvamstad
v. City of Rochester, 276 N.W.2d 632, 632– 33 (Minn. 1979). “A district court abuses its
discretion when its decision is contrary to the record or is based on an erroneous view of
the law.” In re Estate of Nelson, 936 N.W.2d 897, 910 (Minn. App. 2019).
Appellant contends the district court erred by denying the TRO because
respondents’ actions harmed him, so he has “standing” because of an injury-in -fact.5

5 Appellant also argues the district court relied on false information from respondents in
making its determination, but appellant fails to address the district court’s explicit
statement that neither the order denying the TRO nor the order dismissing the complaint
“cite[] to anything in the record that [appellant] contends is factually inaccurate.” Appellant
provides no factual or legal argument contradicting this explicit statement from the district
court, so we decline to address the issue. Schoepke v. Alexander Smith & Sons Carpet Co.,
187 N.W.2d 133, 135 (Minn. 1971) (stating an assignment of error in a brief based on
“mere assertion” and not supported by argument or authority is waived unless prejudicial
error is obvious on mere inspection).

Appellant also claims the district court abused its discretion by “ignoring” his offer of proof
in requesting reconsideration and denying him the chance to request reconsideration.
Appellant provides no legal support for his claim that the district court abused its discretion
by denying his request to move for reconsideration of the TRO denial, so we decline to
address the issue. See Ganguli, 512 N.W.2d at 919 n.1 (stating the court of appeals declines
to address allegations unsupported by legal analysis or citation).
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Respondents contend the district court did not err by denying the TRO because appellant
failed to establish a likelihood of success on the merits and failed to establish a harm the
TRO could prevent, both of which are dispositive of the issue.
We consider five factors when reviewing a trial court’s decision on a preliminary
injunction: “(1) the relationship of the parties; (2) the relative harm to the parties if the
injunction is or is not granted; (3) the likelihood of success on the merits; (4) public policies
expressed in statutes; and (5) the administrative burdens in supervising and enforcing the
decree.” Sanborn Mfg. Co. v. Currie, 50 0 N.W.2d 161, 163 (Minn. App. 1993) (citing
Dahlberg, 137 N.W.2d at 321–22 (Dahlberg factors)). If a plaintiff shows no likelihood of
prevailing on the merits, the district court errs as a matter of law in granting a temporary
injunction. Metrop. Sports Facilities Com’n v. Minn. Twins P’ship, 638 N.W.2d 214, 226
(Minn. App. 2002).
The district court considered all five Dahlberg factors and determined the factors
supported denying appellant’s requested TRO. As a part of the district court’s analysis of
the five Dahlberg factors, it completed a full analysis of each of appellant’s discernable
legal claims in the complaint and determined “[t]here does not appear to be the possibility
of success on the merits of [appellant’s] claims.” This determination required the district
court to deny the TRO. See Metrop. Sports Facilities Com’n, 638 N.W.2d at 226 (stating a
court errs as a matter of law by granting a TRO when it has determined there is no
likelihood of success on the merits). The only authority and argument appellant gives on
the TRO is to support his claim that he suffered an injury-in-fact but even if appellant could
show an injury-in-fact, it would not be enough to survive a lack of success on the merits.
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While appellant provides no other argument about the remaining Dahlberg factors,
his entire brief reads as an argument that he could succeed on the merits if PBR created an
implied private cause of action. As we have discussed, PBR does not create a private cause
of action and appellant failed to make a claim under MHRA or through a personal injury
tort in his complaint. There are no grounds on which appellant could succeed on the merits
of his TRO application because he has not alleged a cause of action on which he could be
granted relief. Appellant failed to show a claim that could succeed on the merits, so the
district court did not err by denying appellant’s TRO petition.
III. Appellant’s reply brief arguments are unsupported.
Appellant claims respondents failed to object to his allegations of perjury in his
principal brief, and this failure to respond constitutes a waiver of argument on the issue.
Appellant asks this court to strike the perjured statements from the record, and remand to
district court to determine the extent of the perjury and to establish a truthful record. But
appellant provides no legal support for the contention that we can strike perjured statements
from the district court’s record, therefore we decline to address the issue. See Ganguli, 512
N.W.2d at 919 n.1 (stating the court of appeals declines to address allegations unsupported
by legal analysis or citation).
Appellant also claims respondents addressed none of the issues he raised in his
principal brief, and that this lack of response constituted a waiver of argument on the issues
and this court must reverse. Appellant cites Clark v. Peterson to support this contention,
which holds that failure to brief an issue for the court of appeals constitutes a waiver of the
issue. 741 N.W.2d 136, 139 n.1 (Minn. App. 2007).
13
First, appellant contends respondents waived argument on his claim that opposing
counsel perjured himself in writing in its brief to the court of appeals. Appellant did not
raise this issue in his principal brief, so respondents had no reason to address the issue in
their brief. See Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 887 (Minn. 2010)
(stating issues not raised or argued in appellant’s principal brief generally cannot be raised
in a reply brief).
Second, appellant contends respondents waived argument on whether the district
court failed to liberally construe his pleadings. Respondents addressed this issue in their
brief by arguing the district court does need to liberally construe complaints, but it need
not insert non-existent arguments into the plaintiff’s complaint.
Third, appellant contends respondents waived argument on whether the district
court erred by not granting the TRO. Respondents addressed this issue in their brief by
arguing the district court did not err in denying the TRO or reconsideration of the TRO
because appellant failed to show a likelihood of success on the merits and failed to establish
a harm the TRO could prevent, both of which are dispositive to granting a TRO.
Finally, appellant contends respondents waived argument on whether appellant can
seek redress through a personal injury tort because of the special relationship between
respondents and appellant. Respondents addressed this issue in their brief by arguing
appellant failed to make the claim about a personal injury court before the district court, so
the issue is not amenable to appellate review.
In sum, appellant’s claims that respondent failed to address the issues he raised in
his principal brief are inaccurate and appellant has failed to show grounds for reversal based
14
on respondents’ supposed waivers, so we decline to address the issues. See Waters v.
Fiebelkorn, 13 N.W.2d 461, 464–65 (Minn. 1944) (“[O]n appeal error is never presumed.
It must be made to appear affirmatively before there can be reversal . . . [and] the burden
of showing error rests upon the one who relies upon it.”); Schoepke, 187 N.W.2d at 135
(stating an assignment of error in a brief based on “mere assertion” and not supported by
argument or authority is waived unless prejudicial error is obvious on mere inspection).
Affirmed.