United States District Court, D. Minnesota
Joshua A. Gardner, Plaintiff,
State of Minnesota; Minnesota Department of Human Services; Minnesota Sex Offender Program; and Brian Ninneman, Randy Gordon, Troy Doe, and J. Doe, all in their individual and official capacities, Defendants.
Zorislav R. Leyderman, The Law Office of Zorislav R.
Leyderman, counsel for plaintiff.
Bradley Richard Hutter, Minnesota Attorney General's
Office, counsel for defendants.
REPORT AND RECOMMENDATION
Katherine Menendez United States Magistrate Judge.
A. Gardner is a patient who is involuntarily civilly
committed to the Minnesota Sex Offender Program
(“MSOP”). He brings this action under 42 U.S.C.
§ 1983, alleging that the defendants violated several of
his constitutional rights when they subjected him to a
strip-search after an incident at the MSOP facility in
February of 2016. This matter is before the Court on the
defendants' motion to dismiss. ECF No. 12. For the
reasons outlined below, the Court recommends that the
defendants' motion be granted and that the case be
defendants' motion to dismiss challenges the sufficiency
of the Complaint on its face. For purposes of this decision,
therefore, the Court accepts the factual allegations in Mr.
Gardner's Complaint as true. Barton v. Taber,
820 F.3d 958, 963-64 (8th Cir. 2016).
Gardner was sexually abused by his uncle when he was a child.
His experience included being forced to remove his clothing
while his uncle recorded him with a video camera. This
experience caused Mr. Gardner “deep emotional scars and
trauma, which continue to this day.” Compl. ¶ 9.
after that childhood trauma, on February 18, 2016 at the MSOP
facility in Moose Lake, Mr. Gardner was standing near two
other MSOP patients who got into a “brief physical
encounter.” Compl. ¶ 10. The encounter lasted
under ten seconds and resulted in no physical injuries.
Id. Mr. Gardner was not involved in the conflict.
Id. After the brief incident ended, MSOP staff
members gave Mr. Gardner verbal commands, with which he
immediately complied. The staff members detained Mr. Gardner
to investigate his possible involvement in the incident.
Id. ¶ 11. Mr. Gardner denied any involvement
and asked to be let go, but MSOP staff took him to the
facility's High Security Area (“HSA”) to
discuss the events. Id. ¶¶ 11-12. The two
other patients were also detained, and the facility was
secured. Id. ¶ 12.
HSA, Mr. Gardner “was transferred into the custody of
defendants Ninneman, Gordon, Troy Doe, and J. Doe.”
Compl. ¶ 13. Mr. Gardner told them that he was not
involved in the fight, but the defendants did not release
him. Id. None of the defendants suspected Mr.
Gardner had a weapon or other contraband on him. Id.
¶ 14. Nevertheless, the defendants told him that he
would be subjected to a videotaped strip-search procedure.
Gardner “begged the Defendants to review the video
surveillance recordings which would show that he was not
involved in the incident and that the incident itself was not
even a fight.” Compl. ¶ 15. He also informed the
defendants that he had been abused by his uncle as a child by
being forced to remove his clothes while he was videotaped.
Id. He explained that the search the defendants
intended to conduct would cause him significant trauma.
Despite his plea, the defendants refused his requests that
they watch the surveillance footage before conducting the
search. Id. The defendants told Mr. Gardner that his
requests were being denied and that he would be forcibly
strip-searched if he did not comply with their commands to
remove his clothing. Id. ¶ 16.
defendants placed Mr. Gardner into a room “where he was
forced to strip naked and subjected to a strip search by
Defendant Troy Doe while Defendant J. Doe video-recorded the
entire procedure from a close distance. Defendants Ninneman
and Gordon, both MSOP officers, also participated in the
strip-search procedure by requesting and/or authorizing
it.” Compl. ¶ 16. This incident caused Mr. Gardner
to relive his experience of childhood abuse. See Id.
¶ 17. No. weapons or contraband were discovered during
the strip search. Id. ¶ 18.
the search was completed, the defendants reviewed the
surveillance footage of the altercation; it confirmed that
Mr. Gardner had not been involved in the incident. Compl.
¶ 19. Indeed, MSOP records show that “Gardner had
no involvement in the altercation, ” and “the
whole encounter [lasted] less than 10 seconds [and that the
incident resulted in no] physical harm.” Id.
(second alteration in Complaint). Because Mr. Gardner's
“behavior did not meet the criteria for Protective
Isolation Status, ” the defendants released him and
informed him he was cleared of any wrongdoing. Id.
on the events discussed above, Mr. Gardner brought suit
against the State of Minnesota, the Minnesota Department of
Human Services (“DHS”), MSOP, and staff members
at MSOP, raising several constitutional claims pursuant to
§ 1983. First, he alleges that the individual defendants
(Ninneman, Gordon, Troy Doe, and J. Doe) violated his Fourth
Amendment right to be free from unreasonable searches.
Compl., Count 1 ¶¶ 23-25. Specifically, he asserts
that he was subjected to an “unreasonable and
unjustified strip-search.” Id. ¶ 24.
Second, Mr. Gardner asserts that the individual
defendants' conduct violated his procedural and
substantive due-process rights under the Fourteenth
Amendment. Id., Count 2 ¶¶ 26-28. He
contends that the individual defendants' actions violated
his procedural due-process rights because he was transferred
to the HSA without justification, while his substantive
due-process rights were violated as a result of the search.
Id. ¶ 27.
Mr. Gardner claims that the State of Minnesota, DHS, MSOP,
and the individual defendants in their official capacities
violated his rights under Fourth and Fourteenth Amendments.
Compl., Count 3 ¶¶ 29-33. Mr. Gardner asserts that
the strip-search procedure could have been avoided if the
defendants had simply detained him briefly in one of many
secured areas in the MSOP facility, such as the one where the
search was conducted, and investigated the incident by
reviewing the video first. Compl. ¶ 20. However, Mr.
Gardner asserts that MSOP policies allow the use of
“unnecessary video-recorded strip searches of MSOP
patients without justification and without a reasonable
investigation.” Id. ¶ 21. Moreover,
“MSOP fails to train its staff to refrain from
strip-searching patients unless there is at least some
suspicion that the patient committed a crime or violated some
MSOP policy or procedure.” Id. These policies
and lack of training allow “MSOP employees [to]
believe that their actions would not be properly monitored
by supervisory employees and that misconduct would not be
investigated or sanctioned, but would be tolerated, ”
causing the alleged violations of Mr. Gardner's
constitutional rights. Id. ¶¶ 32-33.
Prayer for Relief, Mr. Gardner seeks an order finding that
his Fourth and Fourteenth Amendment rights were violated by
the defendants. Compl., Prayer for Relief ¶ a. He also
seeks compensatory and punitive damages from the individual
defendants in their individual capacities. Id.
¶¶ b-c. Further, he asks for an injunction
requiring the State of Minnesota, DHS, and MSOP “to
implement new policies and training which prohibit and
discourage unjustified and unreasonable strip searches of
MSOP clients.” Id. ¶ d. Finally, he
requests an award of reasonable attorney's fees and costs
pursuant to 42 U.S.C. § 1988.
Legal Standards: Fed.R.Civ.P. 12(b)(1) and 12(b)(6)
defendants bring their motion to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defs.'
Mem. at 1, 4-5, ECF No. 14. Under the circumstances here, the
legal standard applied by the Court is the same under both
provisions. On a motion to dismiss for failure to state a
claim under Rule 12(b)(6), courts review the complaint to
determine whether it contains sufficient factual allegations,
accepted as true, to state a claim to relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A claim is facially plausible when the
factual content permits the court to draw a reasonable
inference that the defendant is liable for misconduct.
Id. The Court does not accept as true wholly
conclusory statements or legal conclusions drawn from the
facts. Hanten v. Sch. Dist. of Riverview Gardens,
183 F.3d 799, 805 (8th Cir. 1999); Westcott v. City of
Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). In resolving
such a motion, courts look only at the allegations in the
complaint and do not consider matters “outside the
pleadings.” See Gorog v. Best Buy Co., Inc.,
760 F.3d 787, 791 (8th Cir. 2014).
motion under Rule 12(b)(1) challenges a federal court's
subject-matter jurisdiction over a dispute. Fed.R.Civ.P.
12(b)(1). Where such a motion is based only on the
sufficiency of the allegations in a complaint, it is called a
“facial” challenge to the court's
jurisdiction. Osborn v. United States, 918 F.2d 724,
729 n.6 (8th Cir. 1990). Here, the defendants' have
brought a facial challenge to the Court's jurisdiction
based on the doctrine of sovereign immunity.
“[S]overeign immunity ... is a jurisdictional threshold
matter.” Lors v. Dean, 746 F.3d 857, 861 (8th
Cir. 2014) (internal quotation marks omitted). Because the
defendants raise this jurisdictional issue based only on the
allegations in the Complaint, the Court applies the same
standards discussed above. Osborn, 918 F.2d at 729
n.6 (“In [a facial attack], the court restricts itself
to the face of the pleadings ... and the non-moving party
receives the same protections as it would defending against a
motion brought under Rule 12(b)(6).”).
defendants raise two sovereign-immunity arguments. First, the
State, DHS, and MSOP argue that Mr. Gardner's claims
against them cannot proceed because they are immune from suit
under the Eleventh Amendment. Defs.' Mem. at 5. Second,
both Ninneman and Gordon argue that Mr. Gardner's claims
for monetary damages brought against them in their
official-capacities are no different from a suit against the
State itself and must be dismissed based on the State's
Eleventh Amendment immunity. Id. at 6. Mr. Gardner
did not address these arguments in his response to the motion
to dismiss. Pl.'s Resp., ECF No. 17.
the Eleventh Amendment, a state that has not consented to be
sued is immunized “from damage actions brought in
federal court, except when Congress has abrogated that
immunity for a particular cause of action.” Becker
v. University of Nebraska at Omaha, 191 F.3d 904, 908
(8th Cir. 1999) (citing Hadley v. North Arkansas
Community Technical College, 76 F.3d 1437, 1438 (8th
Cir. 1996)). This immunity prevents both actions brought
against the state directly, and actions brought against state
agencies and instrumentalities. Id. Congress did not
abrogate states' Eleventh Amendment immunity when it
passed § 1983. Will v. Mich. Dep't of State
Police, 491 U.S. 58, 66-67 (1989).
State of Minnesota, DHS, and MSOP are entitled to sovereign
immunity under these rules. Minnesota has not explicitly
consented to suit in federal court and § 1983 does not
provide an avenue for Mr. Gardner's claims against the
State via the abrogation exception. DHS is an agency of the
State, and MSOP is operated and maintained by DHS. Minn.
Stat. § 246B.02. They are, therefore, agencies and
instrumentalities of the State of Minnesota that are entitled
to invoke the State's sovereign immunity.
Mr. Gardner alleges in his Complaint that he seeks only
prospective injunctive relief against DHS and MSOP,
see Compl. ¶ 6, this does not change the fact
that sovereign immunity bars his claims. “In the
absence of consent a suit in which the State or one of its
agencies or departments is named as the defendant is
proscribed by the Eleventh Amendment. This jurisdictional bar
applies regardless of the nature of the relief sought.”
Rose v. State of Nebraska, 748 F.2d 1258, 1262 (8th
Cir. 1984) (quoting Pennhurst State School & Hospital
v. Halderman, 465 U.S. 89, 104 (1984)); Ernst v.
Hinchliff, 129 F.Supp.3d 695, 722 (D. Minn. 2015)
(“Moreover, while under the doctrine of Ex parte
Young, state officials may be sued in their official
capacities for prospective injunctive relief without
violating the Eleventh Amendment, the same doctrine does not
extend to states or state agencies.”) (alteration and
internal quotation marks omitted).
extent that Mr. Gardner asserts official-capacity claims for
monetary damages against the individual defendants Ninneman
and Gordon, those claims should also be dismissed on
sovereign-immunity grounds. “A suit against state
employees in their official capacities is the functional
equivalent of a suit against the State.” Zajrael v.
Harmon, 677 F.3d 353, 355 (8th Cir. 2012). This is so
because “the real party in interest in an
official-capacity suit is the governmental entity and not the
named official....” Hafer v. Melo, 502 U.S.
21, 25 (1991). As such, any official-capacity claims for
monetary damages against the MSOP employees Ninneman and
Gordon should be dismissed because they are prohibited by the
Eleventh Amendment. Treleven v. Univ. of Minn., 73
F.3d 816, 818 (8th Cir. 1996).
these reasons, the Court concludes that it lacks
subject-matter jurisdiction over the claims in Count 3 of Mr.
Gardner's Complaint against the State of Minnesota, DHS,
and MSOP based on Eleventh Amendment sovereign immunity.
Moreover, the Court lacks jurisdiction over any
official-capacity claims for damages against the individual
defendants. The defendants' motion to dismiss these
claims under Rule 12(b)(1) should be granted, and they should
be dismissed without prejudice. Hart v. United
States, 630 F.3d 1085, 1091 (8th Cir. 2011) (affirming
dismissal for lack of subject-matter jurisdiction but
modifying the dismissal to be without prejudice).
Due Process Claims
defendants next argue that Mr. Gardner has failed to state a
plausible individual-capacity claim against Ninneman or
Gordon for any violation of his procedural or substantive
rights under the Due Process Clause of the Fourteenth
Amendment for several reasons. Defs.' Mem. at 8-13. They
argue that the substantive due process claim fails because
the alleged conduct is insufficiently outrageous or
egregious. Id. at 8-10. Further, they argue that Mr.
Gardner fails to state a procedural due-process claim
because: (1) he has not alleged a protected liberty interest;
(2) was not deprived of the process to which he was entitled;
and (3) Ninneman and Gordon were not involved in his transfer
to HSA. Id. at 10-13. Mr. Gardner did not contest
the defendants' position on these claims in his response
to the motion to dismiss.