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Wickner v. Department of Human Services

United States District Court, D. Minnesota

February 28, 2019

LANCE WICKNER, Plaintiff,
v.
DEPARTMENT OF HUMAN SERVICES; SHELBY R. RICHARDSON; and JOHN DOE, unidentified mailroom staff, Defendants.

          Lance Wickner, MSOP, Pro Se Plaintiff

          Nicholas Anderson, Office of the Minnesota Attorney General, for Defendants

          REPORT AND RECOMMENDATION

          DAVID T. SCHULTZ, UNITED STATES MAGISTRATE JUDGE

         Lance Wickner sued the Minnesota Department of Human Services (DHS) and Shelby Richardson[1] challenging the constitutionality of the Client Mail Policy of the Minnesota Sex Offender Program (MSOP). He asserts that the policy classifying client mail to and from the Minnesota Attorney General's (AG) Office as ordinary mail (rather than legal or privileged mail) that is opened and visually scanned by MSOP staff outside his presence violates his First Amendment rights. Defendants moved to dismiss, asserting that Wickner's claims are barred by the doctrine of issue preclusion, [2] by the Eleventh Amendment, and by failure to adequately plead his claim. For the reasons stated below, the Court recommends that Defendants' motion to dismiss be granted, but not for the precise reasons argued by Defendants.

         FINDINGS OF FACT

         Wickner is a civilly committed person who resides at the MSOP in Moose Lake, Minnesota. Compl. ¶ 2, Docket No. 1. In March 2017 he brought a lawsuit challenging the constitutionality of the Client Mail Policy (Policy No. 420-5030)[3] and seeking damages and injunctive and declaratory relief against DHS and Richardson, who was then the MSOP Executive Director, in her official and individual capacity. Id. ¶¶ 2, 4-5 and Count I. Wickner alleged the policy of “opening incoming and outgoing mail outside of an inmate's presence” is unconstitutional because “it is not reasonably related or narrowly tailored to the purpose of treatment of civilly committed individuals” and “chills the plaintiff[']s access to governmental entities that are intimately related to the administration of justice and violates Plaintiff[‘]s right to receive and send mail as protected by the First Amendment.” Id. Count 1.

         Wickner specifically complained that the policy categorizes mail to and from the Minnesota AG's Office as ordinary mail rather than legal mail. Id. ¶¶ 9-10, 18. Under the policy, ordinary or “general” mail is subject to opening and visual inspection by staff outside the client's presence, whereas “legal” and other “privileged” mail is subject to opening and visual inspection only when the client is present. Client Mail Policy at 3-9 (PROCEDURES ¶ B “Incoming Client Mail”; ¶ D “Outgoing General Mail”; and ¶ I “Processing Legal and Privileged Client Mail”), Docket No. 16-1.[4]

         The policy defines “legal mail” as follows:

Legal mail - includes correspondence to or from court, court staff, verified attorneys and established groups of attorneys involved in representing clients in judicial proceedings. The destination or return address must clearly indicate it is to or from one of these sources to qualify as legal mail. Legal mail does not include:
1. mail to/from the Minnesota Attorney General Office (AGO); or
2. mail to/from individual attorneys in the AGO, attorneys working for the Minnesota Department of Human Services (DHS) and/or MSOP attorneys.

Id. at 1 (DEFINITIONS).

         The policy defines “privileged mail” as follows:

Privileged mail - includes legal mail and mail to or from the Ombudsman for Mental Health and Developmental Disabilities, the Office of Health Facility Complaints, the common entry point in Nicollet and Carlton counties, the United States Internal Revenue Service, the Minnesota Department of Revenue, or state and federal elected officials, and official absentee ballots for local, state, or federal elections. The destination or return address must clearly indicate it is to or from one of these sources in order to be defined as privileged mail. Privileged mail also includes mail to or from the following:
1. American Civil Liberties Union;
2. Bureau of Criminal Apprehension;
3. Bureau of Indian Affairs;
4. Central Office Grievance Appeal ...

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