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Green v. Lake

United States District Court, D. Minnesota

January 30, 2019

Anthony C. Green, Plaintiff,
v.
Kelly Lake, Kevin Moser, Steven Sayovitz, Ann Zimmerman, Nicole Marvel, Greg Swenson, Elizabeth Barbo, Bryce Bogenhol, Anthony Bastien, Jesse Peterson, Jesse Berglund, Amanda Shaller, in their individual and official capacities Defendants.

          Anthony C. Green, pro se

          Susan M. Tindal, Iverson Reuvers Condon (for Defendants Kelly Lake, Anthony Bastien, and Jesse Peterson), James H. Clark III, Minnesota Attorney General's Office (for Defendants Kevin Moser, Steven Sayovitz, Ann Zimmerman, Nicole Marvel, and Greg Swenson), and Daniel P. Kurtz, League of Minnesota Cities (for Defendant Bryce Bogenhol).

          REPORT AND RECOMMENDATION

          STEVEN E. RAU, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants' motions to dismiss Plaintiffs' Amended Complaint.[1] (ECF Nos. 22, 35, 53, 65). This matter was referred for the resolution of pretrial matters pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.2. For the reasons stated below, this Court recommends Defendants' motions be granted and this matter be dismissed with prejudice.

         I. BACKGROUND

         A. Procedural Background

         Plaintiff Anthony C. Green is civilly committed to the Minnesota Sex Offender Program (“MSOP”) in Moose Lake, Minnesota. He initiated this lawsuit on April 11, 2014 asserting various constitutional claims against numerous defendants. (ECF No. 1). This case was then stayed pending resolution of a motion for class certification by individuals civilly committed to MSOP. (ECF No. 5). Upon court order, Green amended his complaint on July 8, 2016. (ECF Nos. 13, 14). Green's amended complaint asserted the same claims, added further supporting facts, and removed some defendants. (Am. Compl., ECF No. 14). The stay was lifted on April 14, 2016 and Defendants Bogenhol, Bastien, Lake Peterson, Moser, Linkert, Marvel, Swenson, and Sayowitz filed motions to dismiss. (ECF Nos. 12, 13, 22, 35, 53, 66). The case was stayed again on June 30, 2017 because it was deemed sufficiently related to Karsjens, et al. v. Piper, et al., No. 11-cv-3659 (DWF/TNL). (ECF No. 79). The new stay was lifted on October 22, 2018. (ECF No. 86). The Court permitted the parties to file supplemental briefing addressing any changes in law that may affect the Court's analysis of the already-submitted motions to dismiss. (ECF No. 87). The parties submitted their supplemental briefs and the motions are ripe for determination. (ECF Nos. 89, 90, 91, 93).[2]

         B. Factual Allegations

         1. Unreasonable Search and Seizure

         Green claims he was subjected to illegal searches and seizures on multiple occasions at MSOP. On September 28, 2010, Green claims he was forcibly subjected to an unclothed visual body strip search (“UVBSS”)[3] in an observation cell for contraband, which was never found. (Am. Compl., at 5). He claims another UVBSS was performed again on March 24, 2011 by MSOP officers in full riot gear. (Am. Compl., at 5). Green alleges that unidentified MSOP employees “allowed A-Team members and unit staff to attack Plaintiff without cause or provocation” and that he was thrown to the ground and choked by an MSOP employee. (Am. Compl., at 8). Green claims he refused the UVBSS during the first incident and had his clothes forcibly cut off, and claims he disagreed with the UVBSS but complied in the second incident. (Am. Compl., at 5).

         On June 13, 2012, Green claims MSOP employees again forced an UVBSS on him while the Carlton County Sheriff effected Green's arrest. (Am. Compl., at 10). He claims this search, “humiliate[ed] him in the presence of female staff.” (Am. Compl., at 11). Green states MSOP employees “stormed into the visiting room in full riot gear and attacked plaintiff from behind” while he was handcuffed. (Am. Compl., at 12). Green claims Defendant Barbo, an MSOP Assistant Director, “had no reasonable suspicion or justification to approve the unconstitutional strip search” and that Green was not resisting, was not fighting back, and not threatening” during the entire incident. (Am. Compl., at 11- 12).

         Green also claims his placement in Protective Isolation/Administrative Restriction (“AR status”) for extended periods of time over twenty-four hours violates his Fourth Amendment rights.[4]

         2. Unconstitutional Policies

         Green's complaint repeatedly states that MSOP policies were applied to him unconstitutionally, failed to support a legitimate government interest, and did not provide him proper procedural protections. He identifies “Relevant MSOP Policies” and summarizes the contents of these policies. (See Am. Compl., at 16-19). Green explains that an individual at MSOP may be placed on AR status in the High Security Area (“HSA”), that an individual on AR status has a right to appeal this status and her/his conditions during that time, and under what circumstances AR status must be discontinued. (Am. Compl., at 16-19). Green also explains MSOP's policy on UVBSS: the manner in which they should be performed, and the steps MSOP must follow if an individual refuses an UVBSS. (Am. Compl., at 18). Finally, Green explains that MSOP policy does not allow individuals to call their attorneys. (Am. Compl., at 19).

         3. Due Process and Excessive Force

         Green argues MSOP staff placed him in HSA for extended periods of time without due process protections. (Am. Compl., at 6). He claims he should have had some form of hearing before being placed in HSA because it violated his liberty interests. (Am. Compl., at 7).

         Green claims Defendant Marvel used excessive force when restraining him during the March 24, 2010 incident. (Am. Compl., at 9). Green states that “Marvel, while trying to remove Plaintiff's Do Rag and shoes, twisted the handcuffs and did damage to Plaintiff's wrists.” (Am. Compl., at 9).

         4. Other Concerns

         Green argues his Fourth and Fourteenth Amendment rights were violated when he was denied access to his property while in HSA. (Am. Compl., at 6). Green argues the following restrictions while he was in HSA were illegal: only being allowed one book at a time, being served meals in his cells, not being allowed to participate in any off unit activities, and being restricted to one thirty-minute period outside his cell per day. (Am. Compl., at 6).

         C. Specific Factual Allegations Against Defendants

         1. Defendants Berglund, Moser, Zimmerman, Lake, Bogenhol

         Green states Moser is the Director of MSOP, Zimmerman is the Program Manager for MSOP, Lake is the Carlton County Sheriff, and Bogenhol is the Moose Lake Police Chief. (Am. Compl., at 3-4). Aside from being listed as a party to the lawsuit, none of these Defendants are mentioned anywhere in the complaint. The Court does not address the complaint for claims against these Defendants because Green does not allege they were personally involved or responsible for any constitutional violations.[5]

         2. Defendant Sayovitz

         Green states Sayovitz was an A-Team Supervisor at MSOP. (Am. Compl., at 4). Green claims Sayovitz “informed Assistant director [sic] Defendant Barbo about his intention to be granted approval for the ‘unclothed visual body search.'” (Am. Compl., at 11). Green also states Defendant Sayovitz told him “Anthony you brought this on yourself. We're going to remove the Police cuffs, and place our cuffs on you.” (Am. Compl., at 32). Green alleges Defendant Sayovitz “implemented, retained, and carried out policies that violated the constitutional rights of Plaintiff.” (Am. Compl., at 11).

         3. ...


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