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Banks v. Jesson

United States District Court, D. Minnesota

May 8, 2017

Eugene Christopher Banks, Plaintiff,
Lucinda Jesson [1], et. al, in their Official and Individual Capacities; Defendants,

          Eugene Christopher Banks, pro se

          Aaron Winter and Max H. Kieley for Defendants.


          SUSAN RICHARD NELSON, United States District Judge

         This matter is before the Court on Defendants' Motion for Summary Judgment (“Defs.' Summ. J. Mot.”) [Doc. No. 106] and Plaintiff's Motion to Amend the Complaint (“Mot. to Am.”) [Doc. No. 117]. For the reasons set forth below, Plaintiff's Motion to Amend is denied, Defendants' Summary Judgment Motion is granted, and Plaintiff's remaining claims are dismissed.

         I. BACKGROUND[2]

         A. Facts

         1. The Minnesota Sex Offender Program and Its Media Policy

         The Minnesota Sex Offender Program (“MSOP” or the “Program”) was created by the State of Minnesota to securely house and treat sex offenders who are civilly committed because they are determined to be “sexually dangerous persons.” See Minn. Stat. § 246B.02.[3] A “sexually dangerous person” is one who “(1) has engaged in a course of harmful sexual conduct as defined in subdivision 8; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 8.” Minn. Stat. § 253D.02, subd. 16(a).

         MSOP is statutorily mandated to enact policies that prohibit persons within the Program (often referred to as “clients” or “patients”) from obtaining obscene or pornographic materials. See Minn. Stat. § 246B.04, subd. 2. To fulfill this mandate, and in response to litigation on the First Amendment rights it implicates, MSOP implemented a media policy in 2007 (the “Media Policy”). See Ivey v. Mooney, No. 05-cv-2666 (JRT/FLN), 2008 WL 4527792, at *1-2 (D. Minn. Sept. 30, 2008). The Media Policy expressly recognizes clients' First Amendment rights, but also states that “some sexually explicit materials, which are otherwise legal, can increase the likelihood of assaultive or harassing behavior among committed patients. These materials may also hinder a patient's rehabilitation.” (Aff. of Ricardo Figueroa (“Figueroa Aff.”) at ¶ 5 [Doc. No. 19], Ex. D (“Media Policy”) at 2 [Doc. No. 19-1].[4]) Jannine Hébert-the Executive Clinical Director for MSOP-offered the following explanation as to why sexual materials need to be tightly controlled in the MSOP setting:

It is common practice to limit client exposure to sexually explicit material, including material that contains nudity, in the treatment of sex offenders, particularly for those who are early in treatment. It is perhaps even more relevant to do so with clients who are deemed high risk by the courts or being treated in a residential setting. This is done for the individual treatment of clients as well as for the health of the therapeutic community as a whole. Sexually explicit material can become a “commodity” in a residential program. When it is in the therapeutic community it is frequently purchased and exchanged between clients to promote deviancy and encourage clients to remain in the assault cycles or fantasy worlds thereby impeding the treatment process. For some individual clients it allows them to relive their damaging offending and keep their victims “alive” in their thoughts and fantasies and actions. Sexual compulsivity and hypersexuality is common in high risk sex offenders and it is part of treatment to control the environment that “triggers” their deviancy.
All civil commitment programs for sex offenders restrict pornography, including material that contains nudity. Some programs allow sexually explicit material only in the course of treatment interventions. MSOP has a very controlled use of sexually explicit material as part of the arousal management component of treatment. The use of this material is closely monitored and is only provided if clinically indicated with highly motivated clients in the later part of the program.

(Aff. of Jannine Hébert (“Hébert Aff.”) at ¶¶ 5-6 [Doc. No. 110].)

         The Media Policy divides materials into three categories: (1) “Prohibited Materials”; (2) “Counter-Therapeutic Materials”; and (3) “Permitted Materials.” MSOP detainees may not have Prohibited Materials, which include in relevant part:

3. Any pictures, including pictures in reading materials, or videos of full or partially nude minor children with visible genitals.
4. Any pictures, including pictures in reading materials, or videos of the unclothed or clothed figure of a minor child posing in a sexually suggestive posture or sexual manner.
7. Any pictures, including pictures in reading materials, or videos showing close-up depictions of a. human genitalia in a lewd and explicit fashion; [or] … f. sadomasochistic abuse.[5]
8. Pictures, videos or reading materials that, . . . taken as a whole, predominantly and prominently display nudity, and have the primary purpose of sexual arousal, in a manner similar to adult oriented sexual magazines . . . .
10. Otherwise permitted materials of the type that the patient has misused in the past, providing that the restriction is proportionate to the misuse.

         Counter-Therapeutic Materials are those which are “antithetical to the rehabilitation” of either the patient possessing them or a significant number of other patients who might experience them, but are not strictly prohibited. MSOP patients are discouraged from having Counter-Therapeutic Materials, but may elect to keep them, although the detainee's decision to retain such materials is noted in his/her treatment records. Permitted Materials are those not classified as Prohibited or Counter-Therapeutic.

         To review detainee materials, MSOP has a Media Review Team (“MRT”) consisting of staff members trained to assess detainee property under the terms of the Media Policy. Detainee materials are scanned for content upon arrival at MSOP and detainees' possessions are subject to searches to ensure compliance. If MSOP staff discovers an item suspected of being Prohibited or Counter-Therapeutic, it is confiscated and given to the MRT for review. Either the MRT or the detainee may request that an MSOP senior administrator review and ultimately decide what designation a particular piece of media receives. If an item is deemed Prohibited, the detainee is given ten days to destroy it, send it to someone outside of MSOP, or arrange to have it retrieved by someone outside of MSOP. If the detainee does not dispose of the item in the manner described above, it is destroyed by MSOP staff.

         2. Plaintiff Eugene Banks

         Plaintiff Eugene Banks (“Banks”) was civilly committed to MSOP in 1998 after being declared a sexually dangerous person. Banks is currently confined at the MSOP facility located in Moose Lake, Minnesota and was housed there at all relevant times. In 2009, Banks was denied release from MSOP. Banks v. Ludeman, No. A08-2024, 2009 WL 1182314 (Minn.Ct.App. May 5, 2009). As the appellate court explained:

MSOP has diagnosed appellant with pedophilia, paraphilia, drug and alcohol abuse in a controlled environment, anti-social personality disorder, and narcissistic personality disorder. Since being committed, [Banks] has refused to participate in sex-offender treatment. [Banks] has continued to engage in behavior indicating an interest in children, including possession of a picture of a naked child, possession of letters exploiting sexual violence and physical and sexual abuse of children, and communications with two different 15-year-old boys. During virtually the entire time of his commitment, [Banks] has threatened and assaulted MSOP staff. In a report dated August 7, 2007, [Banks'] treatment team at MSOP concluded that he is at high risk for reoffending because of his current level of psychopathy, continued sexual deviancy and rule violations in an institutional treatment setting, failure to participate in treatment, inability to identify his sex-offending risk factors, and the presence of a large number of static risk factors.

Id. at *1. To this day, Banks refuses to participate in treatment at MSOP. (Aff. of Aaron Winters (“Winters Aff.”) [Doc. No. 109], Ex. 1 (“Banks Dep.”) at 10 [Doc. No. 109-1].)

         At all relevant times, and to this day, Banks resided in the Omega or “Behavioral Therapy Unit (“BTU”) at MSOP Moose Lake. (Aff. of Brian Ninneman (“Ninneman Aff.”) at ¶ 4 [Doc. No. 22]; Banks Dep. at 10-11.) The BTU houses detainees who engage in significant and ongoing criminal, disruptive, and assaulting behavior and often exhibit continuing behavioral problems. (Ninneman Aff. at ¶ 4.) Detainees in the BTU have a more structured and limited routine than other MSOP detainees. (Id.) Part of this structure includes an Individual Program Plan (“IPP”) used by clinicians to help “identify, define, and decrease the repetitive behaviors that affect” a detainee's ability to succeed within MSOP generally. (Aff. of Debbie Thao (“Thao Aff.”) at ¶ 5 [Doc. No. 27].)

         MSOP clinicians testified that Banks' IPP was implemented because he continually had difficulties complying with BTU guidelines and behavioral expectations. (Id. at ¶ 6.) For instance, Banks refused to abide by personal hygiene and room care rules, as well as policies regarding the amount of combustible materials that may be in a detainee's room. (Id.) To have the IPP lifted or modified, Banks had to demonstrate compliance with BTU rules and policies. (Id. at ¶ 9.)

         3. The Seized Media Items

         This suit stems, in relevant part, from Defendants' seizure of various media items from Banks between 2008 and 2011 (collectively, the “seized Items”). As described below, nearly all of the items were seized because they were deemed to be Prohibited under the Media Policy. In general, these Items were classified as Prohibited because they contained nudity.

         The Court briefly describes the seized Items below. For the sake of simplicity, the Court numbers the seized Items corresponding to the paragraph in the Amended Complaint that addresses each Item (e.g., the seized Item addressed in paragraph four of the Amended Complaint is referred to as Item 4). The Court also notes where Defendants produced the offending images contained within some seized Items. (See Winters Aff., Exs. 2-10 (containing the offending images from some of the seized Items).) Defendants have not produced any of the seized Items in their entirety, and for some seized Items, they have not produced even the offending images. However, for most of the seized Items, Defendants produced MSOP documentation detailing the reason for the seizure. (See Aff. of Amanda Torgerson (“Torgerson Aff.”) [Doc. No. 111], Exs. 1-15.)

         a. Item 4

         Banks alleges that in 2011, Defendants Jensen, Hines, and Hammond confiscated volume XXXI, issue 2, of a magazine entitled “Photo District News.” (Am. Compl. at ¶ 4 [Doc. No. 57].) Banks provides some evidence that this is a publication for photographers and he believes this issue was 124 pages long. (Pl.'s Mem. in Opp. at 25- 26 [Doc. No. 116].) MSOP records indicate that Item 4 was deemed to be Prohibited because it contained nudity in the form of “clearly visible [male and female] genitals.” (Torgerson Aff., Ex. 1.)

         b. Item 5

         Banks alleges that in 2011, Defendants Hammond and Jensen confiscated a magazine entitled “Interview, ” dated December/January 2011. (Am. Compl. at ¶ 5.) Banks provides some evidence that this is a publication containing interviews with-and photographs of-various celebrities and he believes this issue was 133 pages long. (Pl.'s Mem. in Opp. at 22-23.) MSOP records indicate that Item 5 was deemed to be Prohibited because it contained images of “exposed female nipple[s] and breast[s].” (Torgerson Aff., Ex. 2.)

         c. Item 6

         Banks alleges that in 2011, Defendant Bergman confiscated the December 2010 issue of “W” magazine, entitled “baby love.” (Am. Compl. at ¶ 6.) Banks provides some evidence that this is a fashion, art, and culture magazine and he believes this issue was at least 120 pages long. (Pl.'s Mem. in Opp. at 13-15.) MSOP records indicate that Item 6 was deemed to be Prohibited because it contained “female nudity.” (Torgerson Aff., Ex. 3.) Defendants produced several pages from the magazine, two of which contain images of exposed female breasts with visible nipples. (Winters Aff., Ex. 2.)

         d. Item 8

         Banks alleges that in 2011, Defendants Jensen and Hammond confiscated the May 2011 special issue 13 of “Color” magazine. (Am. Compl. at ¶ 8.) Banks provides some evidence that this is a photography magazine featuring works by the winners of various contests. (Pl.'s Mem. in Opp. at 31.) Defendants produced several pages from the magazine. (Winters Aff., Ex. 3.) Some contain altered photos of nude women where their breasts and pubic regions are exposed, but not clearly visible. (Id. at 51, 63-65.[6]) Others contain photos of nude women with their breasts or genitals fully exposed and visible. (Id. at 66-68, 70.)

         e. Item 9

         Banks alleges that in 2010, Defendants Jensen, Hines, and Hammond confiscated issue 79 of a magazine entitled “Black and White.” (Am. Compl. at ¶ 9.) Banks provides some evidence that this is a photography magazine featuring photos by various photographers. (Pl.'s Mem. in Opp. at 28-29.) MSOP records indicate that Item 9 was deemed to be Prohibited because it contained “pictures of exposed female nipples and breasts.” (Torgerson Aff., Ex. 4.) ...

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