Dane Michael Vandervoort, Respondent,

This opinion is nonprecedential except as provided by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
A21-1686

Dane Michael Vandervoort,
Respondent,

vs.

Anthony Pietrzak,
Appellant.

Filed July 11, 2022
Reversed
Ross, Judge

Anoka County District Court
File No. 02-CV-21-3973

Dane VanderVoort, Lino Lakes, Minnesota (pro se respondent)

Stephen M. Foertsch, Samantha J.S. Foertsch, Bruno Law, PLLC, Golden Valley,
Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
A prisoner incarcerated at the Lino Lakes Correctional Facility petitioned the district
court to issue a harassment restraining order against a corrections officer, alleging that the
officer “constantly watches” him and “goes out of his way to come in contact” with him
threateningly. The district court conducted a hearing and issued the requested restraining
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order. On appeal from that order and from the district court’s later denial of his motion to
vacate the order, the corrections officer argues, among other things, that the evidence was
insufficient to support the order. Because the district court’s harassment restraining order
rests in part on clearly erroneous factual findings and the findings that are supported by the
evidence do not constitute harassment, we reverse.
FACTS
Respondent Dane VanderVoort (properly spelled despite the caption) is serving a
prison sentence following his 2019 guilty plea to three counts of second-degree assault
with a dangerous weapon for pointing a gun to threaten his girlfriend, his girlfriend’s
friend, and a police officer. State v. Vandervoort, No. A20-0123, 2020 WL 7019331, at *1
(Minn. App. Nov. 30, 2020), rev. denied (Minn. Feb. 24, 2021). VanderVoort, who has
been incarcerated at the Lino Lakes C orrectional Facility since being transferred there in
April 2021, petitioned the district court in August 2021 to issue a harassment restraining
order (HRO) against a prison corrections officer, Anthony Pietrzak.
VanderVoort alleged that Pietrzak had been harassing him beginning June 2021 .
Throughout the two months after Pietrzak allegedly began harassing VanderVoort ,
Pietrzak (1) “[c]onstantly watches” VanderVoort; (2) “goes out of his way to come in
contact” with VanderVoort; (3) “[a]lways tries to control” VanderVoort; and (4) “use[s]
foul language and demeaning remarks” toward VanderVoort and “[h]as used threatening
remarks, gestures, and ill-intended body language.” VanderVoort also alleged that, on July
25, 2021, “[Pietrzak] stole sunglasses from [him].” And he alleged that, on August 4, 2021,
Pietrzak “told [VanderVoort] he was watching [him] and [he] should be worried.”
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VanderVoort and Pietrzak offered contrasting testimony at the district court’s
hearing on the HRO petition. The district court found that VanderVoort’s testimony was
more credible and proved that Pietrzak had harassed VanderVoo rt. It found specifically
that Pietrzak “[m]ade threats” to VanderVoort, “[f]rightened [VanderVoort] with
threatening behavior,” and “[c]alled [VanderVoort] abusive names.” The district court
issued an HRO forbidding Pietrzak from having any direct or indirect contact with
VanderVoort and from “being within [VanderVoort’s] assigned unit” at the prison.
Pietrzak twice unsuccessfully moved the district court to vacate the order.
Pietrzak appeals. We previously determined that we lack jurisdiction to hear his
challenge to the district court’s first motion to vacate but have jurisdiction over his
challenge to the HRO and to the second motion to vacate.
DECISION
Pietrzak challenges the HRO and the district court’s denial of his second motion to
vacate the HRO. We need not reach Pietrzak’s challenge to the order denying his motion
to vacate because, for the following reasons , we hold that the HRO itself was issued
improperly.
We will first consider the district court’s underlying factual findings as they bear on
the statutory elements of harassment. We review those findings for clear error. Kush v.
Mathison, 683 N.W.2d 841, 843–44 (Minn. App. 2004), rev. denied (Minn. Sept. 29,
2004); see also In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221–23 (Minn. 2021)
(elaborating on clear-error review and reaffirming that it is “a review of the record to
confirm that evidence exists to support the decision”). Harassment includes, among other
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things not relevant to this appeal, “repeated incidents of intrusive or unwanted acts, words,
or gestures that have a substantial adverse effect or are intended to have a substantial
adverse effect on the safety, security, or privacy of another.” Minn. Stat. § 609.748,
subd. 1(a)(1) (2020). The district court’s most significant factual findings lack support in
the record.
The district court found that “every time [VanderVoort] had contact with
[Pietrzak],” Pietrzak “would make these demeaning comments to him,” referring to three
terms: “f--king idiot,” “stupid,” and a slur related to homosexuality. The district court’s
finding overstates the occurrences. Responding to the district court’s inquiry, “how often
does this happen,” VanderVoort said that “it has happened . . . on a few occasions.”
Prompted further, he said, “[J]ust about every time . . . I’ve had any contact with him,” but
he also testified that Pietrzak did not begin making any comments until about June 15,
2021, and that Pietrzak had been assigned to VanderVoort’s unit “since [VanderVoort] got
to Lino Lakes” in April 2021. The district court’s finding that Pietrzak made those
comments to VanderVoort “every time” the two had contact is not supported by the
evidence and is therefore clearly erroneous.
The district court found that Pietrzak accurately issued a “Loss of Privileges” (LOP)
charge against VanderVoort for violating prison rules by improperly transferring
sunglasses but that, in doing so, Pietrzak erroneously designated the rule-infraction as a
second offense when it was really only a first offense, “which results in a LOP.” The district
court did not find, and the record would not support a finding, that Pietrzak inaccurately
made the designation purposefully. And the record does not support the finding that
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VanderVoort incurred “a longer loss of privileges” because of the mistake. VanderVoort
responded to the district court’s inquiry about what, if any, different punishment occurs
between a first LOP and a second LOP by answering, “I don’t believe there’s any”
difference. Pietrzak explained how he had mistaken VanderVoort’s infraction as a second
offense. Whether or not the district court believed the explanation about how the mistaken
designation occurred, the record indicates plainly that the mistake was inconsequential.
The district court’s finding that the mistaken designation resulted in a greater loss of
privileges is clearly erroneous.
The district court found that Pietrzak “told [VanderVoort], ‘I’m not going to quit—
who is going to make me. I can do anything I want because I’m the union president. ’
[Pietrzak] made these types of comments to [VanderVoort] on at least three separate
occasions.” It also found that this statement constituted a threat to VanderVoort. The
finding is flawed as to quantity and substance. Regarding quantity, VanderVoort did not
say that Pietrzak made these comments “on at least three separate occasions.” Asked how
often he heard the comment, VanderVoort said, “[O]n a few occasions. I would – let’s –
let’s say three different occasions.” The difference between “three different occasions” and
“at least three separate occasions” is perhaps only an inconsequential nuance, but as to
substance, VanderVoort never testified that Pietrzak “told” him those things or made the
comments “to” him. To the contrary, responding to the district court’s specific inquiry as
to whether Pietrzak was saying those things “to you,” VanderVoort indicated instead that
he had merely overheard Pietrzak make the comment, not that Pietrzak was speaking to
VanderVoort: “I don’t think that that’s something you ever really say directly to anyone.”
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The district court’s finding that Pietrzak made the comment to VanderVoort is clearly
erroneous. The district court’s related, unexplained finding that the comment constituted a
“threat” is likewise clearly erroneous; this is so not only because no evidence supports the
finding that Pietrzak made the comment to VanderVoort but also because the nature of the
comment does not reasonably suggest that it was a threat.
The district court similarly found that Pietrzak “threatened” VanderVoort by telling
him, “I’m watching you.” The district court does not explain how a prison guard telling a
prison inmate, “I’m watching you,” constitutes a threat; it is self-evident that watching
inmates is among a correctional officer’s duties and that being watched is a prison inmate’s
expected experience. Without some indication of menace, merely being informed of the
circumstance does not constitute being threatened, and the context undermines the finding
further. VanderVoort explained, “I had a little bird that had been drawn on my [face] mask
for a long time, and . . . I gave it to him. He gave me a new mask, and as he handed me my
pass, he told me, ‘I’m watching you’ in a threatening manner.” The record does not indicate
why an inmate’s wearing a face mask that bears a drawing or other writing is prohibited,
as the context suggests, but warning an inmate, “I’m watching you,” while confiscating the
marked mask and replacing it with a new one does not, in context, constitute a threat. The
district court’s finding that the comment, “I’m watching you,” constitutes a threat lacks
evidentiary support.
The district court also found that Pietrzak “[f]rightened [VanderVoort] with
threatening behavior as follows: see attached Memo of Law.” The district court’s attached
memorandum of law says nothing of Pietrzak engaging in conduct intended to frighten
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VanderVoort or of VanderVoort ever having been frightened. Even if the district court had
included a discussion of either, the finding would be unsupported as VanderVoort never
testified that he was frightened by Pietrzak’s behavior. The district court’s finding that
Pietrzak “[f]rightened [VanderVoort] with threatening behavior” is clearly erroneous.
VanderVoort’s testimony not only exposes these clearly erroneous factual findings,
it also either fails to support or directly contradicts many of his initial allegations. For
example, his HRO petition alleged that Pietrzak “[c]onstantly watches [VanderVoort],” but
no admissible evidence suggests that this was so. Nor is the allegation particularly relevant
in a prison environment. Nothing in VanderVoort’s testimony supports his claim that
Pietrzak “goes out of his way to come in contact” with VanderVoort. Nothing supports the
claim that he “[a]lways tries to control” VanderVoort. VanderVoort’s testimony reveals as
a mischaracterization his claim that “[Pietrzak] stole sunglasses from [him].” And he never
testified that Pietrzak ever “told [him he] . . . should be worried.” In the shadow of his
hearing testimony, VanderVoort’s initial claims of mistreatment mostly disappear.
We doubt that the district court’s findings would justify an HRO even if they were
all supported by evidence, but we are certain that the supported findings cannot validate
the order. We review for an abuse of discretion the district court’s decision to issue an
HRO. Peterson v. Johnson, 755 N.W.2d 758, 761 (Minn. App. 2008). A district court may
issue an HRO if it finds “reasonable grounds to believe” that harassment occurred. Minn.
Stat. § 609.748, subd. 5(3) (2020). The supported findings here simply do not establish that
Pietrzak engaged in “repeated incidents of intrusive or unwanted acts, words, or gestures”
that had any “substantial adverse effect or [were] intended to have a substantial adverse
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effect on” VanderVoort’s “safety, security, or privacy.” See Minn. Stat. § 609.748,
subd. 1(a)(1). The district court found, and the record supports the finding, that “six to
seven times” spanning from June to August 2021 Pietrzak referred to VanderVoort in
derogatory fashion, using the words, “f--king idiot,” “stupid,” or a slur related to
homosexuality. None of these terms is respectful or courteous, or even civil. Their use
certainly supports VanderVoort’s testimony that they made him feel demeaned. But they
are more accurately described as “inappropriate or argumentative” statements, which are
not harassment under the statute. Kush, 683 N.W.2d at 844. Their use does not indicate any
substantial adverse effect on VanderVoort’s safety, security, or privacy. The district court
also found, and VanderVoort’s testimony supports the finding, that “a few different times”
he saw Pietrzak grabbing his own crotch and nodding, a gesture VanderVoort described as
“gross.” Again, crude? Yes. Offensive? Likely. Juvenile? Definitely. But intending to or
having a substantial adverse effect on VanderVoort’s safety, security, or privacy? No.
We of course do not condone the conduct alleged. Nor do we suggest that a
correctional officer’s conduct in a prison setting can never constitute harassment
warranting an HRO. We hold only that those factual findings that are supported by
evidence in this case fall short of the statutory standard. The district court therefore abused
its discretion by issuing the HRO.
Reversed.