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Whipple v. Edwards

United States District Court, D. Minnesota

January 14, 2019

Michael R. Whipple, Plaintiff,
Thomas Edwards, a PsyD, LP-Psychologist 3 MSOP St. Peter site; Gary Grimm, Assistant Program Director MSOP St. Peter site; Robert Elsen, a Behavior Analyst BAII MSOP St. Peter site; Luke Moulder, a Behavior Analyst BAZ MSOP St. Peter site; James Hickey, Officer of the Day O.D. MSOP St. Peter site; and Dennis Benson, former Chief Executive Officer of the Minnesota Sex Offender Program, Defendants.



         Plaintiff Michael R. Whipple, a client of the Minnesota Sex Offender Program (“MSOP”), alleges that Defendants violated his federal and state constitutional rights by placing him in restrictive conditions for over three months without adequate procedural protections. MSOP officials also conducted an unclothed visual search (i.e., strip search) of Whipple immediately prior to his placement in the restricted area, and Whipple alleges that this search-and the MSOP policy by which it was conducted-was unlawful as well. Several of the Defendants originally named by Whipple to this litigation have already been dismissed without prejudice for lack of plausible allegations regarding personal involvement in unlawful behavior. (Order, July 22, 2016 [Doc. No. 14], adopting R. & R., June 22, 2016 [Doc. No. 12].) The remaining Defendants[1] now seek dismissal of this lawsuit pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. [See Doc. Nos. 17, 26.] For the reasons explained below, this Court recommends that all Defendants except Dennis Benson and Gary Grimm be dismissed without prejudice from the litigation. This Court further recommends that all claims against Benson and Grimm except the claim related to the strip search be dismissed without prejudice. In other words, only a single claim-that Benson and Grimm violated Whipple's constitutional rights through the creation and implementation of an unlawful policy authorizing unreasonable unclothed visual searches of MSOP clients-is recommended to go forward.


         For purposes of this Report and Recommendation (“R. & R.”), this Court accepts as true all non-conclusory factual allegations made in the complaint. See Aten v. Scottsdale Ins. Co., 511 F.3d 818, 820 (8th Cir. 2008).

         On the morning of July 31, 2009, Whipple and another MSOP client exchanged punches while in a stairwell at MSOP's St. Peter, Minnesota facility. (Compl. ¶¶ 14-15 [Doc. No. 1].) Whipple was immediately apprehended by MSOP officials, placed in handcuffs, and taken to the facility's High Security Area (“HSA”). (Id. ¶ 21.) Just prior to being transferred to the HSA, Whipple was both pat-searched and searched with a metal-detecting wand. (Id.) Upon arriving at the HSA, unnamed MSOP security officials insisted that Whipple either undergo a strip search or wear handcuffs for four hours upon his arrival, consistent (they said) with MSOP policy.[2] (Id.) Whipple chose the strip search. (Id.)

         Under MSOP policy,

A patient may be place [sic] on Administrative Restriction when: (1) the patient is suspected of committing a crime or charged with a crime; (2) the patient is the subject of a criminal investigation; (3) the patient is awaiting sentencing following the conviction of a crime; (4) the patient is awaiting transfer to a correctional facility.[3]

(Devine Aff. Ex. A at 2 (punctuation altered) [Doc. No. 20-1 at 3].) The same day as the altercation, an Imposition of Administrative Restriction signed by defendant Luke Moulder was placed on Whipple pending a criminal investigation of the fight. (Compl. ¶ 26.) While on Administrative Restriction, Whipple was permitted only thirty minutes outside of his room per eight-hour shift (with second- or third-shift requests subject to staff availability)[4] during which to bathe, speak with his attorney, or take care of any other personal needs. (Id.) Whipple was handcuffed at all times outside of his room until August 13, 2009, when that restriction was lifted. (Id. ¶¶ 26, 28.) Whipple was not permitted to engage in MSOP therapeutic programming while on Administrative Restriction, nor was he permitted visits from outsiders. (Id. ¶ 26.) Whipple was also denied direct access to his property, though he could place particularized requests for his belongings through MSOP staff. (Id.)

         Clients placed on Administrative Restriction may challenge the Restriction, or any of the specific conditions imposed as a result of the Restriction, by submitting written information rebutting the imposition or conditions, in which case the MSOP Director must provide a written response within seven days. (Devine Aff. Ex. A at 4.) The decision of the MSOP director is not subject to appeal. (Id.) After placement at the HSA, status reviews “must occur weekly while the patient is on Administrative Restriction.” (Id.)

         By all indications, MSOP officials followed these policies in Whipple's case. Although the exact circumstances of the challenge are not clear, Whipple availed himself of MSOP's appellate review procedure at least once, but was unsuccessful in having his Administrative Restriction status lifted. (Id. ¶ 35.) Whipple's conditions did change somewhat for the better after Defendant Robert Elsen entered updated Administrative Restriction plans on August 10 and August 13 (see Compl. ¶¶ 27-28). For the most part, however, Whipple remained subject to the restrictions described above until he was transferred to MSOP's Moose Lake facility on November 9, 2009.[5] Whipple was also subject to restrictions at the new facility-restrictions that are not a subject of this litigation-on the grounds that “Mr. Whipple is currently under investigation for criminal behavior.” (Compl. ¶ 31 (quoting administrative restriction plan of November 9, 2009).) But despite the lengthy amount of time he was putatively under investigation, Whipple was never charged criminally as a result of the July 31 incident.[6]

         II. ANALYSIS

         A. Procedural Status

         Whipple filed this lawsuit in 2013. Almost immediately afterward, this action was stayed pending resolution of related issues in Karsjens v. Minnesota Department of Human Services, No. 11-cv-3659 (DWF/TNL). (Order, Oct. 28, 2013 [Doc. No. 3].) The stay was lifted in April 2016. (Order, Apr. 14, 2016 [Doc. No. 10].)

         When he commenced this lawsuit, Whipple applied for in forma pauperis (“IFP”) status. The IFP application was pending when the stay was imposed and thus remained pending at the time the stay was lifted. On June 22, 2016, this Court granted the IFP application and ordered that service of process be effected upon, or waiver of service sought from, Defendants Thomas Edwards, Gary Grimm, Robert Elsen, Luke Moulder, James Hickey, and Dennis Benson in both their individual and official capacities consistent with Rule 4 of the Federal Rules of Civil Procedure. (Order, June 22, 2016 [Doc. No. 11].) This Court also recommended, pursuant to 28 U.S.C. § 1915(e)(2)(B), that about a dozen other Defendants be dismissed without prejudice due to insufficient allegations in the complaint that those individuals had personally acted unlawfully. (R. & R., June 22, 2016 [Doc. No. 12].) Whipple did not object to that R. & R., which was adopted on July 22, 2016. (Order, July 22, 2016 [Doc. No. 14].)

         On September 7, 2016, each of the remaining Defendants in their official capacities, along with Benson in his individual capacity, filed a motion to dismiss the complaint. [Doc. No. 17.] About a month later, Elsen in his individual capacity filed a separate motion to dismiss. [Doc. No. 26.] The arguments for dismissal set forth in those motions will be examined below.[7]

         Before reaching those arguments, however, this Court must address the status of Edwards, Grimm, Moulder, and Hickey in their individual capacities. None of those Defendants joined in the motions to dismiss-or, for that matter, made an appearance in this case-contending that service of process has not yet been properly effected upon them in their individual capacities. (Defs.' Mem. at 1 n.1 [Doc. No. 19].) Still, although those parties did not formally join in the motions to dismiss, the memoranda filed with those motions argue that Edwards, Grimm, Moulder, and Hickey must be dismissed from this action for lack of personal jurisdiction due to insufficient service of process.

         Under 28 U.S.C. § 1915(d), “[t]he officers of the court shall issue and serve all process” where a litigant has been granted IFP status. Consistent with that obligation, though not consistent with the precise requirements of Rule 4, the U.S. Marshal's Service sent via certified mail a copy of the summons and the complaint to each of the named Defendants. [Doc. No. 41.] Although the method employed by the Marshal's Service was not satisfactory under Rule 4(e) as to any Defendants in an individual capacity, [8]Benson, and later Elsen, consented to the method of service employed. The other Defendants, however, have not consented to service through a method other than that permitted by Rule 4(e), and they are within their rights not to have done so.

         “If a defendant is improperly served, the court lacks jurisdiction over the defendant.” Dodco, Inc. v. Am. Bonding Co., 7 F.3d 1387, 1388 (8th Cir. 1993). Edwards, Grimm, Moulder, and Hickey have not been properly served. Unlike Benson and Elsen, they have not consented to the Court's jurisdiction notwithstanding the improper service. Accordingly, this Court currently lacks jurisdiction over those defendants.

         Nevertheless, for two reasons, the Court declines to recommend dismissal of those Defendants on that basis. First, there is no reason to believe that Edwards, Grimm, Moulder, or Hickey would not be subject to the jurisdiction of the Court if they had been properly served. Moreover, as indicated above, service of process is ultimately the responsibility of the Court where a litigant has been granted IFP status, as is the case here. See 28 U.S.C. § 1915(d). If all that stood between Whipple and the successful prosecution of this lawsuit were mistakes in how service of process was effected, this Court would simply order that service of process be effected again, this time consistent with Rule 4.

         Second, mistakes in how service of process was effected are not all that stands between Whipple and the successful prosecution of this action. Many of the arguments made by Benson and Elsen in their motions to dismiss may be applied with equal force to the claims against Edwards, Grimm, Moulder, and Hickey. Moreover, the same IFP statute that provides for service of process through officers of the court also states that “the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). Thus, although Edwards, Grimm, Moulder, and Hickey in their individual capacities have not joined in the motion to dismiss, the Court may nonetheless dismiss those Defendants from the action should it find that Whipple has failed to state a claim upon which relief may be granted against those Defendants.[9]

         As explained below, this Court finds that Whipple has stated a single actionable claim for relief against only one of those four unserved Defendants (Grimm) in an individual capacity.[10] Accordingly, the other claims against the unserved Defendants may be dismissed pursuant to § 1915(e)(2)(B), despite those Defendants not having joined in the motions to dismiss. Should this action go forward against Grimm, as is recommended, service of process must be completed and jurisdiction obtained over Grimm consistent with Rule 4(e).

         B. Eleventh Amendment

         Whipple brings claims against each Defendant in both his individual capacity and official capacity as an officer or employee of the State of Minnesota. (Compl. at 1.) “The Supreme Court has interpreted the Eleventh Amendment to bar actions in federal court against a state by its citizens.” Treleven v. Univ. of Minn., 73 F.3d 816, 818 (8th Cir. 1996) (citing Hans v. Louisiana, 134 U.S. 1, 15 (1890)). “Additionally, the Eleventh Amendment prohibits federal-court lawsuits seeking monetary damages from individual state officers in their official capacities because such lawsuits are essentially ‘for the recovery of money from the state.'” Id. (quoting Ford Motor Co. v. Dep't of the Treasury, 323 U.S. 459, 464 (1945)). Defendants correctly argue, and Whipple agrees, that any claims for monetary relief brought against them in their official capacities must therefore be dismissed without prejudice for lack of jurisdiction.

         Defendants also argue that Whipple's claims against them in their official capacities for non-monetary relief-that is, injunctive relief-should likewise be dismissed, though for different reasons. As Defendants recognize, a litigant may seek prospective injunctive relief against a defendant named in his or her official capacity as an officer or employee of the State. See Ex Parte Young, 209 U.S. 123 (1908). Defendants also recognize that Whipple seeks injunctive relief in his complaint. Nevertheless, Defendants contend that an action for injunctive relief cannot be maintained against them in their official capacities because, in effect, that relief would not be prospective. According to Defendants, Whipple “does not allege an ongoing harm or a threat of a real and immediate injury” (Defs.' Reply at 4 [Doc. No. 35]), and Whipple has been transferred to a different facility, thus mooting any concerns that he would be subject to similar treatment in the future by the same Defendants.

         This is an overly cramped reading of Whipple's complaint. The pleading contends that the policies at issue apply to all MSOP clients, not just those at the St. Peter facility; thus, Whipple's transfer does not render moot his requests for prospective relief from those policies. Nothing in the record suggests that those policies do not remain in effect now. Moreover, Whipple alleges that the Defendants at issue-or MSOP officials in equivalent positions today-are responsible for creating, amending, and implementing the allegedly unlawful policies. Those officials are therefore appropriate parties from whom to seek injunctive relief. See Fed. R. Civ. P. 25(d). Finally, any accusation of misconduct by MSOP officials in the future, whether meritorious or otherwise, could result in Whipple being subjected to the allegedly unlawful policies in the future. Consequently, Whipple's request for injunctive relief is not excessively speculative.

         That said, in order to succeed on his official-capacity claims, Whipple must show that the policies at issue are, in fact, unlawful. For the most part, as set forth more fully below, Whipple has failed to do so, and thus the official-capacity claims may be dismissed on the same grounds as the individual-capacity claims. Only with respect to the strip-search claim, and only with respect to defendants Benson and Grimm, has Whipple adequately alleged a violation of his constitutional rights based on unlawful policy. Thus, it is recommended that this claim be allowed to go forward against both Benson and Grimm in both their individual and official capacities.

         C. Rule 12(b)(6)

         1. Standard of Review

         Under Federal Rule of Civil Procedure 12(b)(6), a court must accept as true a complaint's factual allegations and draw all reasonable inferences in the plaintiff's favor. Aten, 511 F.3d at 820. Although the plaintiff's factual allegations 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 also “state a claim to relief that is plausible on its face.” Id. at 570. In assessing a claim's plausibility, the Court may disregard any allegation that is conclusory. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (holding that conclusory allegations “are not entitled to the assumption of truth.”).

         2. Procedural Due Process

         Broadly speaking, Whipple's complaint raises two categories of claims. First, he alleges that he was made subject to an Administrative Restriction without sufficient procedural protections, in violation of his federal and state constitutional due-process rights. Second, Whipple alleges that the substantive conditions of confinement to which he was subjected while on Administrative Restriction violated his federal and state constitutional rights. This Court will first examine Whipple's procedural claims before turning to his conditions-of-confinement claims.

         Although not presented as such, Whipple's procedural claims can be categorized further: (1) To what process was Whipple entitled before being apprehended in the immediate aftermath of the July 31 altercation? (2) To what process was Whipple entitled before MSOP officials could impose an Administrative Restriction upon Whipple? (3) After those continuing restrictions were imposed, to what process was Whipple entitled to challenge or seek changes in those restrictions? The Court will examine those questions in turn.

         “A procedural due process claim is reviewed in two steps.” Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006). First, the Court must examine whether Whipple was deprived of a protected liberty or property interest. Id. (citing Dover Elevator Co. v. Ark. State Univ., 64 F.3d 442, 445-46 (8th Cir. 1995)). Second, if a protected interest is at stake, the Court must “consider what process is due by balancing the specific interest that was affected, the likelihood that the [current] procedures would result in an erroneous deprivation, and the [governmental] interest in providing the process that it did, including the administrative costs and burdens of providing additional process.” Id. (citing Mathews v. Eldridge, 424 U.S. 319, 332-35 (1976)). Because Whipple “has been civilly committed to state custody as a dangerous person, his liberty interests are considerably less than those held by members of free society, ” though as compared to a prison inmate, he is “entitled to more considerate treatment and conditions of confinement.” Id. (quotations and citations omitted). For purposes of each of Whipple's due-process claims, this Court assumes, without deciding, that Whipple had a liberty interest in the less-restrictive conditions imposed outside of the HSA. See Perseke v. Moser, No. 16-cv-0557 (PJS/LIB), 2016 WL 6275191, at *5 (D. Minn. Sept. 26, 2016) (“Plaintiff arguably has a protected liberty interest at stake when he is placed in the HSA, which affords him some measure of due process.”); but see Larson v. Jesson, No. 11-cv-2247 (PAM/LIB), 2018 WL 3352926, at *5 (D. Minn. July 9, 2018).

         a. Process Due ...

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