United States District Court, D. Minnesota
Daniel E. Gustafson and Raina Borrelli, Gustafson Gluek PLLC, 120 South 6th Street, Suite 2600, Minneapolis, MN, 55402, for Plaintiff.
Adam H. Welle, Minnesota Attorney General's Office, 445 Minnesota Street, Suite 1100, St. Paul, MN, 55101-2128, for Defendants.
SUSAN RICHARD NELSON, District Judge.
This matter is before the Court on Plaintiff's Objections [Doc. No. 26] and Defendants' Objections [Doc. No. 27] to United States Magistrate Judge Tony N. Leung's July 31, 2014, Report and Recommendation ("R & R"). The magistrate judge recommended that Defendants' Motion to Dismiss Plaintiff's First Amended Complaint be granted in part and denied in part. (R & R at 47 [Doc. No. 24].) For the reasons set forth below, Plaintiff's Objections are overruled in part and sustained in part. Defendants' Objections are similarly overruled in part and sustained in part.
The Magistrate Judge's R & R thoroughly documents the factual and procedural background of the case, which is incorporated here by reference. The 42 U.S.C. § 1983 claims in this case arise from alleged racial and religious discrimination that Michael Pittman ("Pittman" or "Plaintiff") experienced, and continues to experience, as a patient in the Minnesota Sex Offender Program ("MSOP"). (See generally Am. Compl. [Doc. No. 10].) The MSOP is maintained by the Commissioner of the Minnesota Department of Human Services. See Minn. Stat. Ann. § 246B.02.
Plaintiff was civilly committed to the MSOP on December 1, 2010 under Minn. Stat. § 253B.185. (Am. Compl. ¶ 4 [Doc. No. 10]; Defs.' Mem. of Law in Support of Defs.' Mot. to Dismiss at 3 [Doc. No. 17].) He is an African American and is a practicing Muslim. (Am. Compl. ¶ 23 [Doc. No. 10].)
A. Equal Protection/Racial Discrimination Claims
Plaintiff alleges that he has experienced ongoing racial discrimination by MSOP staff since he was committed. (Id. ¶ 25.) However, he contends that "the discrimination worsened in July 2012 following an incident Plaintiff was involved in on his living unit." (Id.) Furthermore, Pittman alleges several incidents of MSOP staff treating black and white patients unequally, or inadequately responding to complaints of unequal treatment.
1. Defendants Robert Bender, Justin Wright, Tom Cherro, Janail Luczak,  Jeanne Dreher, and Jessica Ranem
Pittman alleges that he had an altercation with a group of MSOP Security Counselors in July 2012. (Id.) The group of MSOP Security Counselors included Defendants Robert Bender, Justin Wright, Tom Cherro, Janail Luczak, Jeanne Dreher, and Jessica Ranem. (Id.) Plaintiff claims that after the July 2012 altercation, this group of Security Counselors threatened to kill him and repeatedly called him racial epithets. (Id.) Specifically, Plaintiff alleges that the Security Counselors made statements such as, "I hate that nigger, " "I wish he was dead, " and "If I get my hands on that nigger, I'm going to kill him." (Id.) They also referred to Plaintiff as "monkey" and "ape." (Id.) In his Amended Complaint, Pittman does not clarify whether each named Defendant made each of these comments or used each of the listed racial epithets. Nor does Pittman clarify whether these statements were made directly to him, or whether he was informed by a third party that the Security Counselors made these comments.
Pursuant to § 1983, Plaintiff claims that Defendants Robert Bender, Justin Wright, Tom Cherro, Janail Luczak, Jeanne Dreher, and Jessica Ranem are liable for violating the Fourteenth Amendment of the United States Constitution because they continuously racially discriminate against Plaintiff. (Id. ¶¶ 49-54.)
Plaintiff additionally alleges that as a black man, he is observed by MSOP staff more closely than white patients. (Id. ¶ 32.) He specifically alleges that on January 16, 2013, Defendant Luczak, one of the Security Counselors who called Plaintiff racial slurs, followed Plaintiff as he moved around his living unit. (Id.)
2. Defendant Tom Snedker
Pittman also alleges that while he was walking to Health Services on February 16, 2013, an unnamed Security Counselor said to him, "What up snicker." (Id. ¶ 26.) Defendant Tom Snedker, also a MSOP Security Counselor, overheard this exchange. (Id.) Plaintiff contends that the term "snicker" was used in place of the epithet "nigger." (Id.) Defendant Snedker attempted to persuade Plaintiff that the greeting was not meant as a racial slur. (Id. ¶ 26.) Plaintiff asserts that Defendant Snedker "did not ask the Security Counselor to explain himself, apologize, or address the statement in any way." (Id.) Pittman brings an equal protection race discrimination claim against Defendant Snedker, pursuant to § 1983, for his failure to intervene or reprimand his fellow Security Counselor.
3. Defendant Terry Kneisel
Plaintiff further alleges that he discussed the "snicker" incident with MSOP Program Manager, Defendant Terry Kneisel. (Id.) Defendant Kneisel allegedly "told Plaintiff that he would not discuss the issue with his staff and that staff does not have to offer Plaintiff an explanation or apology for using the word snicker.'" (Id.) Plaintiff's equal protection claim against Defendant Kneisel appears to be based on Kneisel's affirmative refusal to investigate Plaintiff's claim.
4. Defendant Mike Anderson
Pittman additionally alleges that on March 11, 2012, he was engaged in "horseplay" with another black patient. (Id. ¶ 27.) Defendant Mike Anderson, a MSOP Security Counselor, reprimanded Plaintiff for this behavior. (Id.) Plaintiff contends that later that same day, a group of white patients were engaged in "horseplay" in front of Defendant Anderson, but Anderson did not reprimand the white patients. (Id.)
5. Defendant Amanda Furey
Defendant Amanda Furey, another MSOP Security Counselor, was directly beside Defendant Anderson while the white patients engaged in "horseplay." (Id.) Like Defendant Anderson, she also did not reprimand the white patients for their behavior. However, Plaintiff does not allege that Defendant Furey treated black patients engaged in "horseplay" differently from white patients.
6. Defendant Rob Rose
Pittman alleges that Defendant Rob Rose, MSOP Unit Director for 1-D, is liable for violating Plaintiff's rights under the Equal Protection Clause because he failed to ensure that the MSOP Security Counselors treat black and white patients similarly. Plaintiff specifically alleges two incidents in which Defendant Rose failed to adequately respond to complaints of unequal treatment.
The first incident occurred on September 28, 2011. (Id. ¶ 31.) On that day, Plaintiff submitted a client request form to Defendant Rose, which stated that "[S]ecurity [C]ounselors on Unit 1-D allowed white patients to congregate in a group and talk with each other while on the unit[, ] but did not allow black patients to do the same." (Id.) Plaintiff's Amended Complaint is silent as to whether Defendant Rose responded to this complaint.
The second incident occurred on March 18, 2012. (Id. ¶ 30.) As a practicing Muslim, Pittman is committed to wearing his Kufi, "which is a head covering that Muslim men wear as a symbol of humility at all times, " in order "to identify his religious affiliation." (Id. ¶ 40.) However, the MSOP rules and staff members prohibit Plaintiff from wearing his Kufi except when he is inside his cell and during Jumah services, which are held from 12:30-1:30 pm on Fridays. (Id. ¶¶ 40-41.) If MSOP staff determine that a patient has violated a behavioral rule, they may issue a Behavioral Expectation Report ("BER"). (Id. ¶ 28.) On March 18, 2012, Plaintiff received a BER for wearing a "hat, " his Kufi, outside of his unit. (Id. ¶ 30.) Later the same day, Pittman alleges he "observed white patients wearing hats out of their units before going outdoors and none of them received any reprimands or a BER." (Id.) Plaintiff alleges that he submitted a client request to Defendant Rose regarding this perceived unequal use of the BER disciplinary tool for black and white patients. (Id.) Defendant Rose allegedly responded to this request by stating that "all patients are held to the same standards." (Id.) Plaintiff contends that because the unequal treatment persists, Defendant Rose's response was perfunctory and disingenuous. (See id. ¶ 39.)
7. Defendant Brian Ninneman
Pittman alleges that Defendant Brian Ninneman, MSOP Unit Director of the Omega Unit and Behavioral Therapy Unit Supervisor (id. ¶ 9, 33), also failed to adequately respond to two reports of unequal treatment.
The first report was on February 8, 2013, when Plaintiff overheard another MSOP patient repeatedly use the word "nigger." (Id. ¶ 33.) In response to this incident, Plaintiff filed a client request form with Defendant Brian Ninneman. (Id.) Defendant Ninneman allegedly responded by explaining that "all reports of racial remarks are taken seriously and followed up on." (Id.) Approximately one month later, Pittman again heard the same MSOP patient repeatedly use the word "nigger." (Id.) Plaintiff reported this incident to Security Counselor Tom Macie and filed an additional client request form. (Id.) Plaintiff does not specify to whom he submitted the form. Instead, he alleges that the response to his complaint stated that "the issue was addressed by staff." (Id.)
The second report of unequal treatment by Ninneman was on February 9, 2013, when Pittman submitted a client request form to Ninneman, "asking why patients are allowed to use discriminatory language without consequences." (Id. ¶ 34.) Ninneman allegedly responded that "the issues are always addressed by the client's unit director." (Id.)
Plaintiff alleges that despite Defendant Ninneman's responses, he continues to hear racial slurs directed at him by the MSOP staff and patients. (Id. ¶ 36.) Therefore, Pittman contends that Defendant Ninneman's responses are mere lip service, and the persistent use of discriminatory language by the MSOP patients is indicative of Defendant Ninneman's failure to address this behavior. (Pl.'s Opp'n to Defs.' Mot. to Dismiss at 17 [Doc. No. 20].)
8. The MSOP's Culture of Racism
Pittman alleges that all of these incidents of racial discrimination and unequal treatment are reflective of the MSOP's culture of racism and discrimination. (See id. ¶¶ 36-39.) Furthermore, he alleges that despite filing grievances "he continues to hear racial slurs directed at him from MSOP staff and other MSOP patients." (Id. ¶ 36.) Plaintiff alleges that the MSOP's institutional racism has been documented through both internal and external investigations and reports. (Id. ¶ 37-38.) In 2005, the Minnesota Ombudsman for Mental Health and Mental Retardation allegedly determined that the MSOP lacked diversity training and cultural diversity. (Id. ¶ 37.) The same year, the MSOP conducted an internal review and made similar findings. (Id.) The evaluation was completed by the MSOP's Hospital Review Board ("HRB"). (Id.) The HRB is a three member panel that hears MSOP patient grievances and concerns. (Id. ¶ 36; Minn. Stat. Ann. § 253B.22.) In response to "numerous patient complaints and discriminatory and harassing practices by MSOP staff, " the HRB met with groups of minority patients and recommended that the MSOP "increase diversity and improve the racial awareness and sensitivity of its staff, increase diversity on its staff, adjust programming for various minority groups, and implement a zero-tolerance policy for discriminatory or harassing conduct." (Id. ¶ 36.)
An external review of institutional racism at the MSOP made similar recommendations. Plaintiff alleges that in 2006, the MSOP retained an outside expert, Eugene Begay, to evaluate issues relating to diversity and racism at the MSOP. (Id. ¶ 38.) Begay authored a report and sent it to the then-site director of the MSOP's Moose Lake facility, Dean Mooney. (Id.) The report recommended that the MSOP strive to "increase[e] staff diversity, institut[e] policies that promote diversity, and seek outside accreditation." (Id.)
Plaintiff alleges that the MSOP's racist culture, "attitudes, " or "policies" have not changed since 2005-2006. (Id. ¶ 39.) In fact, Plaintiff raised his concerns about racial discrimination before the HRB. (Id. ¶ 36.) However, "the HRB did not recommend that the MSOP make any changes to their policy or do any follow-up investigation of Plaintiff's claims of racial discrimination." (Id.)
As a result of the perceived policies and practices that permit racial discrimination, Plaintiff alleges that pursuant to § 1983 (a) Defendant Lucinda Jesson, the Commissioner of the Minnesota Department of Human Services ("DHS"), (b) Defendant Nancy Johnston, the Executive Director of MSOP, and (c) Defendant Kevin Moser, the Director of MSOP, have violated his Fourteenth Amendment equal protection rights.
a. Defendant Lucinda Jesson
As the Commissioner of the Minnesota DHS, Defendant Lucinda Jesson, is responsible for "adopt[ing] rules to govern the operation, maintenance, and licensure of secure treatment facilities operated by the [MSOP], " and "establish[ing] an evaluation process to measure outcomes and behavioral changes as a result of treatment compared with incarceration without treatment, to determine the value, if any, of treatment in protecting the public." Minn. Stat. Ann. § 246B.04. Consequently, Plaintiff alleges that Defendant Jesson, "in her individual and official capacity, implemented, retained[, ] and carried out [racially discriminatory] policies through MSOP that violated the constitutional rights of Plaintiff." (Am. Compl. ¶ 5 [Doc. No. 10].)
b. Defendant Nancy Johnston
As the Executive Director of the MSOP, Defendant Nancy Johnston, "is charged with overall responsibility for the operation of the [MSOP]." Minn. Stat. Ann. § 246B.01. Plaintiff contends that Defendant Johnston is well aware of issues of racial discrimination because of her position of authority, the grievance he filed with the HRB, and the numerous client request forms he has submitted. (Am. Compl. ¶ 36 [Doc. No. 10].) Therefore, Plaintiff alleges that Defendant Johnston, "in her individual and official capacity, implemented, retained[, ] and carried out [racially discriminatory] policies through MSOP that violated the constitutional rights of Plaintiff." (Id. ¶ 6.)
c. Defendant Kevin Moser
Finally, Pittman alleges that as the Director of the MSOP, Defendant Kevin Moser, has also "been made aware" of Plaintiff's claims of racial discrimination because of the numerous complaints Plaintiff has filed. (Id. ¶ 36.) Thus, he similarly alleges that Defendant Moser, "in his individual and official capacity, implemented, retained[, ] and carried out [racially discriminatory] policies through MSOP that violated the constitutional rights of Plaintiff." (Id. ¶ 7.)
B. Free Exercise/Religious Discrimination Claims
In addition to claims of racial discrimination, Plaintiff also alleges several claims of religious discrimination against Defendants Jesson, Johnston, and Moser, in their individual and official capacities. (Id. ¶¶ 5-7.) Plaintiff contends that these three Defendants created and implemented policies that prohibit Plaintiff from practicing his religious beliefs. (Id. ¶ 41.) As noted above, Pittman identifies as a "practicing Muslim, " and his religious practice includes wearing a Kufi, a religious head covering. (Id. ¶ 40.)
Plaintiff alleges that two MSOP rules prohibit him from wearing his Kufi at all times, "as his religion dictates." (Id. ¶ 41.) First, the MSOP has a Client Hygiene/Dress Code policy, policy number 303.020, which permits patients to wear "headwear" only in their assigned rooms, in the yard, and for approved religious practices only. (Id.) "Headwear.... is defined as hats, bandanas, scarves, headbands, hoods, do-rags[, ] and shower caps." (Id.) Second, the MSOP has a Spiritual Practices policy, policy number 302.300, which provides that "patients may only wear or use personal religious items in their rooms and during scheduled religious services, ceremonies, and ...