Henry Hickman, 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This opinion is nonprecedential except as provided by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
A23-0127

Henry Hickman,
Appellant,

vs.

Keith M. Ellison, A.G., et al.,
Respondents.

Filed June 26, 2023
Affirmed
Frisch, Judge

Chisago County District Court
File No. 13-CV-22-409

Henry Hickman, Rush City, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Anna Veit- Carter, Assistant Attorney General, St. Paul,
Minnesota (for respondents)

Considered and decided by Frisch, Presiding Judge; Cochran, Judge; and Wheelock,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Appellant challenges the dismissal of his complaint alleging an equal-protection
violation under 42 U.S.C. § 1983 (2018) and intentional infliction of emotional distress.
Because the complaint fails to state a viable claim for relief, we affirm.

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FACTS
In May 2022, appellant Henry Hickman filed a complaint against respondents
Corrections Officer Lindbom and Lieutenant Jensen in their official and individual
capacities.1 Hickman asserted an equal- protection claim under 42 U.S.C. § 1983 and a
claim of intentional infliction of emotional distress. The complaint sets forth the following
alleged facts.
In March 2022, after Hickman played cards with two other inmates of color at the
Minnesota Correctional Facility-Rush City (the prison), Officer Lindbom told Hickman
that he did not want to see poker chips on the table. Officer Lindbom then walked by a
table where White inmates were using poker chips and did not make any comment about
their use of poker chips. Hickman stated to Officer Lindbom that allowing White inmates
to use poker chips but not allowing Black inmates to do so was discriminatory. Officer
Lindbom thereafter threatened Hickman’s employment in the prison. Hickman requested
a grievance form from another officer and was denied. Later, when Hickman was in his
cell, Officer Lindbom walked by and stated, “Stay in your cell pending termination.”
Hickman asked to see the watch commander and to speak to the Crisis Intervention Team,
and both requests were denied.

1 Hickman also named as defendants Attorney General Keith Ellison, Commissioner of
Corrections Paul Schnell, and Warden Jesse Pugh. The district court dismissed Hickman’s
claims against these defendants for lack of notice and personal involvement, and Hickman
does not challenge that ruling on appeal. The district court dismissed the claims against
Lieutenant Jensen on the same basis, but we construe Hickman’s arguments on appeal as
challenging this ruling.
3
Hickman alleged that he suffered distress “due to los[s] of employment and
harassment, [and] retaliatory behavior by 3 South staff.” Hickman requested compensatory
damages, punitive damages, litigation costs, and “a declaration that the acts described
herein violate[] his rights under the constitution and laws of the United States, along with
violation [sic] of Minnesota state prison policy.”
Respondents moved to dismiss Hickman’s complaint under Minn. R. Civ.
P. 12.02(e) for failure to state a claim upon which relief can be granted. Respondents
argued, in relevant part, that Hickman failed to state a claim upon which relief could be
granted and that Officer Lindbom is entitled to qualified and official immunity. 2 The
district court granted respondents’ motion to dismiss.
Hickman appeals.
DECISION
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 accept the factual
allegations set forth in the complaint as true and construe all reasonable inferences in favor

2 In Hickman’s response to the motion to dismiss, he attempted to raise federal claims of
First Amendment retaliation and a due-process violation. These claims were not included
in Hickman’s complaint or in any amended complaint and were therefore not properly
before the district court. See Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 995
(8th Cir. 1989) (“[I]t is axiomatic that a complaint may not be amended by the briefs in
opposition to a motion to dismiss.” (quotation omitted)). To the extent Hickman may be
raising those claims on appeal, we decline to address them because they are forfeited. State
v. Beaulieu, 859 N.W.2d 275, 278 (Minn. 2015) (stating that a “constitutional right, or a
right of any other sort, may be forfeited in criminal as well as civil cases by the failure to
make timely assertion of the right before a tribunal having jurisdiction to determine it”
(quotation omitted)).
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of the nonmoving party. Id. But we are not required to accept legal conclusions set forth
in a complaint. Hebert v. City of Fifty Lakes, 744 N.W.2d 226, 235 (Minn. 2008). A claim
survives a motion to dismiss “if it is possible on any evidence which might be produced,
consistent with the pleader’s theory, to grant the relief demanded.” Walsh, 851 N.W.2d at
603 (quotation omitted).
Section 1983
Hickman asserts a section 1983 claim based on the alleged deprivation of his
Fourteenth Amendment right to equal protection. The district court did not err in
dismissing Hickman’s claim because he did not plead sufficient facts to state a claim for
such relief.
Section 1983 provides a civil cause of action to challenge a deprivation of
constitutional rights under color of state law. 42 U.S.C. § 1983. The essential elements of
a constitutional claim under section 1983 are that (1) the defendant acted under color of
state law and (2) the alleged wrongful conduct deprived the plaintiff of a constitutionally
protected federal right. West v. Atkins, 487 U.S. 42, 48 (1988); L.L. Nelson Enters., Inc. v.
County of St. Louis, 673 F.3d 799, 805 (8th Cir. 2012).
Hickman asserts that respondents deprived him of the constitutional right to equal
protection under the Fourteenth Amendment. To succeed on an equal -protection claim in
a prison context, a plaintiff must show that (1) they are treated differently than a similarly
situated class of inmates, (2) the different treatment burdens a fundamental right, and
(3) the different treatment bears no rational relation to any legitimate penal interest .
Murphy v. Missouri Dep’t of Corrections, 372 F.3d 979, 984 (8th Cir. 2004) (citing Weiler
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v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998) (en banc)). A plaintiff must also show that
the discrimination was intentional or purposeful. Phillips v. Norris, 320 F.3d 844, 848 (8th
Cir. 2003). A few individual examples of unequal treatment are “insufficient to provide
more than minimal support to an inference of classwide purposeful discrimination.”
Weiler, 137 F.3d at 1052 (quotation omitted).
Applying these principles, we conclude that the complaint does not set forth
allegations stating a claim for relief. Hickman does not allege that differential treatment
involving the use of poker chips burdened a fundamental right. Hickman does not allege
that this claimed differential treatment was intentional or purposeful. And the complaint
contains allegations of one isolated instance of purported differential treatment, which is
insufficient as a matter of law to sustain a claim for relief.
Thus, the district court did not err in dismissing Hickman’s complaint for failure to
state a viable claim for relief under section 1983.
Intentional Infliction of Emotional Distress
Hickman alleged a claim for intentional infliction of emotional distress based on
“ongoing mental, emotional and financial distress due to los[s] of employment and
harassment, retaliatory behavior by 3 South staff” and “fear of further false accusations
towards plaintiff.” The district court did not err in dismissing this claim because the
complaint does not state a claim for relief.
A claim for intentional infliction of emotional distress includes four required
elements: (1) the conduct must be extreme and outrageous, (2) the conduct must be
intentional or reckless, (3) the conduct must cause emotional distress, and (4) the emotional
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distress must be severe. Hubbard v. United Press Int ’l, Inc., 330 N.W.2d 428, 438 -39
(Minn. 1983). A plaintiff has a heavy burden of production in the allegations to satisfy the
fourth element. Id. at 439. The emotional distress must be “so severe that no reasonable
man could be expected to endure it.” Id. (quotation omitted). “General embarrassment,
nervousness and depression are not in themselves a sufficient basis for a claim of
intentional infliction of emotional distress.” Strauss v. Thorne, 490 N.W.2d 908, 913
(Minn. App. 1992), rev. denied (Minn. Dec. 15, 1992). The purpose of this heavy burden
is to limit claims for intentional infliction of emotional distress to “cases involving
particularly egregious facts.” Hubbard, 330 N.W.2d at 439.
The complaint contains no allegation of any conduct by Officer Lindbom or
Lieutenant Jensen that is extreme or outrageous and no allegation of severe emotional
distress. Vague allegations that defendants engaged in “harassment” or “retaliatory
behavior” are insufficient to constitute the necessary extreme and outrageous conduct. Cf.
Strauss, 490 N.W.2d at 910, 913 (concluding that physician noting on patient’s medical
chart that he suspected patient’s wife of child abuse was not sufficiently extreme or
outrageous).
Hickman also alleges that he is experiencing “ongoing mental, emotional and
financial distress,” but such conclusory allegations are too broad, vague, and insufficiently
severe to state a claim of intentional infliction of emotional distress. Cf. Jensen v. Walsh,
609 N.W.2d 251, 252 -53 (Minn. App. 2000) (concluding that claimed symptoms of
depression, sleep difficulties, anxiety, inability to focus at work, and physical problems
such as vomiting and headaches are not sufficient evidence of severe emotional distress),
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rev’d on other grounds, 623 N.W.2d 247 (Minn. 2001); Elstrom v. Indep. Sch. Dist. No.
270, 533 N.W.2d 51, 57 (Minn. App. 1995) (concluding that “insomnia, crying spells, a
fear of answering her door and telephone, and depression” did not sustain an intentional-
infliction-of-emotional-distress claim), rev. denied (Minn. July 27, 1995). Accordingly,
the district court did not err in dismissing Hickman’s complaint for failure to state a viable
claim for intentional infliction of emotional distress.3
Affirmed.

3 On appeal, respondents also argue that Hickman’s complaint should have been dismissed
because Officer Lindbom is protected by official and qualified immunity. Because we
conclude that Hickman’s complaint fails to state a claim for relief, we do not address the
issues of official and qualified immunity. See Goeb v. Tharaldson, 615 N.W.2d 800, 815
n.9 (Minn. 2000) (“Because the other issues raised are dispositive of this matter, we do not
address this argument.”).