United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
Wayne Nicolaison, an involuntary patient of the Minnesota Sex
Offender Program (“MSOP”), has long alleged that
his continuing indefinite detention at the MSOP is unlawful.
Within the past 16 months alone, Nicolaison has filed both a
petition for a writ of habeas corpus, see Nicolaison v.
Piper, No. 16-CV-2777 (JRT/SER) (D. Minn. filed Aug. 18,
2016), and a civil complaint, see Nicolaison v. Hennepin
County, No. 17-CV-1354 (JRT/SER) (D. Minn. filed Apr.
24, 2017), challenging the fact of his continuing
confinement. The habeas petition was dismissed without
prejudice for being “successive” within the
meaning of 28 U.S.C. § 2244(b); the civil complaint was
dismissed without prejudice pursuant to the doctrine set
forth in Heck v. Humphrey, 512 U.S. 477 (1994).
now returns to federal court, this time again challenging the
lawfulness of his ongoing detention in a civil complaint
raising claims under 42 U.S.C. § 1983. Nicolaison did
not pay the filing fee for this action, but instead applied
for in forma pauperis (“IFP”) status.
See ECF Nos. 2 & 3. Those IFP applications are
now before the Court and must be considered before any other
action is taken in this matter.
review of the IFP application, this Court concludes that
Nicolaison qualifies financially for IFP status. That said,
an action may be dismissed when an IFP applicant has filed a
complaint that fails to state a cause of action on which
relief may be granted. See 28 U.S.C. §
1915(e)(2)(B)(ii); Atkinson v. Bohn, 91 F.3d 1127,
1128 (8th Cir. 1996) (per curiam); Carter v.
Schafer, 273 Fed. App'x 581, 582 (8th Cir. 2008)
(per curiam) (“[C]ontrary to plaintiffs' arguments
on appeal, the provisions of 28 U.S.C. § 1915(e) apply
to all persons proceeding IFP and are not limited to prisoner
suits, and the provisions allow dismissal without
service.”). In reviewing whether a complaint states a
claim on which relief may be granted, this Court must accept
as true all of the factual allegations in the complaint and
draw all reasonable inferences in the plaintiff's favor.
Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th
Cir. 2008). Although the factual allegations in the complaint
need not be detailed, they must be sufficient to “raise
a right to relief above the speculative level . . . .”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). The complaint must “state a claim to relief
that is plausible on its face.” Id. at 570. In
assessing the sufficiency of the complaint, the court may
disregard legal conclusions that are couched as factual
allegations. See Ashcroft v. Iqbal, 556 U.S. 662
(2009). Pro se complaints are to be construed liberally, but
they still must allege sufficient facts to support the claims
advanced. See Stone v. Harry, 364 F.3d 912, 914 (8th
an action brought by an IFP applicant may be summarily
dismissed prior to service when found to be frivolous.
See 28 U.S.C. § 1915(e)(2)(B)(I). “Many
courts have found and the Eighth Circuit has tacitly
acknowledged that a claim squarely barred by Heck
from the face of the complaint is frivolous as the Supreme
Court has defined that term.” Ehlers v. United
States Navy, No. 16-CV-0030 (DWF/TNL), 2016 WL 1592478,
at *3 (D. Minn. Mar. 14, 2016) (collecting cases).
current complaint is, for all intents and purposes, identical
to his previous civil complaint filed in this District.
Nicolaison alleges that his continuing detention at the MSOP
is unlawful because it is premised on his threat of future
dangerousness and therefore violates his due-process right to
the presumption of innocence. See Compl. at 3 [ECF
No. 1]. In Heck, however, the Supreme Court held
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a [42 U.S.C.] § 1983 plaintiff must
prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a
writ of habeas corpus. A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983.
Heck, 512 U.S. at 486-87 (footnote and citation
omitted). Put another way, a detainee cannot maintain a civil
lawsuit that, if successful, would necessarily cast
doubt upon the validity of his facially valid confinement.
unlike the litigant in Heck, is not being held
pursuant to a criminal judgment. Still, “the
principles set forth in Heck are fully applicable to
. . . detainees who are confined by reason of a civil
commitment, rather than a prison sentence.” McHorse
v. Minnesota, No. 13-CV-0837, 2013 WL 2383603, at *2 (D.
Minn. May 30, 2013) (citing, inter alia, Huftile v.
Miccio-Fonseca, 410 F.3d 1136, 1139-40 (9th Cir. 2005);
Banda v. New Jersey Special Treatment Unit Annex,
164 Fed. App'x 286, 287 (3d Cir. 2006) (per curiam);
Coffman v. Blake, 156 Fed.Appx. 863 (8th Cir. 2005)
(per curiam)). Until Nicolaison successfully challenges the
legality of his detention at MSOP through an appropriate
procedural mechanism, he cannot seek relief in a civil
complaint resulting solely from the fact of that putatively
unlawful detention. This action must therefore be dismissed
without prejudice. See Gautreaux v. Sanders, 395
Fed. App'x 311, 312 (8th Cir. 2010) (per curiam)
(modifying dismissal under Heck to be without
with Heck, Nicolaison may challenge the validity of
his detention through petition for a writ of habeas corpus.
Moreover, a pleading filed by an unrepresented litigant may
sometimes be recharacterized as brought in the appropriate
format. See, e.g., Spencer v. Haynes, 774
F.3d 467, 471 (8th Cir. 2014). In this case, however,
reinterpretation of Nicolaison's civil complaint as a
habeas corpus petition would do little good, because, as
before, his petition would be successive within the meaning
of § 2244(b). See 28 U.S.C. §
2244(b)(3)(A) (“Before a second or successive
application permitted by this section is filed in the
district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court
to consider the application.”). The Eighth Circuit
Court of Appeals has not authorized Nicolaison to file a
second or successive habeas petition raising the claims
stated in the pleading now before the Court. Accordingly,
reinterpretation of Nicolaison's pleading as a habeas
petition governed by § 2254 would lead to the same
result: dismissal without prejudice.
two matters merit further comment. First, Nicolaison has
requested that the United States Marshal be ordered to effect
service of process on defendant Hennepin County. See
ECF No. 5. Litigants granted IFP status are entitled to
service of process effected by “officers of the
court.” 28 U.S.C. § 1915(d). Because it is
recommended that this action be summarily dismissed, however,
it is also recommended that Nicolaison's IFP application
be denied. By that same token, it is further recommended that
service of process not be effected.
Nicolaison has requested that counsel be appointed to
represent him in this matter. See ECF No. 4. Pro se
litigants such as Nicolaison do not have a constitutional or
statutory right to counsel in civil cases. See Stevens v.
Redwing, 146 F.3d 538, 546 (8th Cir. 1998). Further,
appointment of counsel in this matter would serve the
interests of neither Nicolaison nor the Court. Nicolaison
cannot seek federal habeas corpus relief challenging the
legality of his civil detention unless he first receives
authorization from the Eighth Circuit Court of Appeals; an
attorney would have no more success than Nicolaison has had
in prosecuting habeas corpus claims in this District absent
the necessary authorization. Similarly, Nicolaison cannot,
consistent with Heck, seek civil remedies resulting
solely from the fact of his detention until that detention is
declared unlawful through another mechanism; an attorney
could not assist Nicolaison in overcoming this Heck
bar. It is therefore recommended that Nicolaison's motion
for appointment of counsel also be denied.
on the foregoing, and on all of the files, records, and