United States District Court, D. Minnesota
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.
REPORT AND RECOMMENDATION
BOWBEER, UNITED STATES MAGISTRATE JUDGE
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 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.
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).
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. (Id.) Whipple chose the strip
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
(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) 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
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.”
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. 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.
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].)
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].)
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.
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.
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,
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.
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.
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.
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
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. 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).
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.
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
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.
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
Standard of Review
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.”).
Procedural Due Process
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.
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.
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).
Process Due ...