United States District Court, D. Minnesota
Michael D. Benson, Plaintiff,
v.
Emily Johnson Piper[1], Comm. of the Dept. of Human Services; Shelby Richardson, MSOP Dir.; Kevin Moser, Fac. Dir.; Terry Kniesel, Asst. Fac. Dir.; Steve Sadjak, Asst. Fac. Dir.; Rich O'Conner, Super.; Steve Sayovitz, Super.; Ron Fischer, Super.; Nate Johnson, Super.; Mike Goeglein, Super.; Scott Benoit, Man.; Lori Aldrin, Off. of the Day; Julianna Beavens, Off. of the Day; Ryan Fahland, Asst. Super.; Randy Gordon, Asst. Super.; Andrea Kosloski, Unit 1-B Dir.; Brian Ninneman, Unit 1-C Dir.; Robert Rose, Unit 1-C Dir.; Kathryn Schesso, Clin. Super.; Jana Korby, Clin. Super.; Tara Osbourne, Clin. Super.; Nicole Vaineo, Clin. Ther.; Kyle Randa, Sec. Couns. Lead; Elizabeth Wyatt, Sec. Couns. Lead; Derrick Koecher, Sec. Couns. Lead; Scott Gianinni, Sec. Couns.; Brennan Shorter, Sec. Couns.; Blake Carey, Sec. Couns.; Gordon Huhta, Sec. Couns.; Robert Grescyzk Jr., Sec. Couns.; Wendy McGowan, Sec. Couns.; Barry Giersdorf, Sec. Couns.; Chris St. Germain, Sec. Couns.; Jordan Goodman, Sec. Couns.; Sam Brindamor, Sec. Couns.; Bruce Lind, Sec. Couns.; Travis Cowell, Sec. Couns.; Jenny Collelo, Sec. Couns.; and Paul Michelizzi, Sec. Couns., in their individual and official capacities, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE
This
matter is before the Court upon Defendants' objections
(Doc. No. 67 (“Defs.' Obj.”)) and
Plaintiff's objections (Doc. No. 70
(“Plaintiff's Obj.”)) to Magistrate Judge
Tony N. Leung's January 25, 2019 Report and
Recommendation (Doc. No. 65 (“Report and
Recommendation”)). Defendants filed a response to
Plaintiff's objections on March 15, 2019.[2] (Doc. No. 74.)
Plaintiff did not file a response to Defendants'
objections.
Defendants
object to the Report and Recommendation insofar as it
recommends that Defendants' motion to dismiss be denied
with respect to: (1) Plaintiff's Fourth Amendment claims
against Defendants Wyatt, Beavens, Shorter and Fisher related
to alleged unclothed visual body searches on December 6 and
7, 2016; (2) Plaintiff's Fourteenth Amendment procedural
due process and related supervisory claims against Defendants
Wyatt, Beavens, Fischer, Shorter, Gianinni, Johnson,
Brindamor, Aldrin, Lind, Goeglien, Korby, Schesso, Cowell,
Cellelo, Johnson Piper, Richardson, Moser, Kniesel, Sadjak,
Benoit, and Kosloski related to Plaintiff's alleged
placements in high security area (“HSA”); and (3)
Plaintiff's claim for punitive damages with respect to
all Defendants other than McGowan and Kosloski.[3] Plaintiff objects
to the Report and Recommendation insofar as it recommends
dismissal of Plaintiff's substantive due process claims
related to his placements in HSA; and his First Amendment
Claims related to his free exercise of religion.
The
Court has conducted a de novo review of the record,
including a review of the arguments and submissions of
counsel, pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 72.2(b). The factual background for the above-entitled
matter is clearly set forth in the Report and Recommendation
and is incorporated by reference here. The Court notes
particular facts relevant to this Order below.
In the
Report and Recommendation, Magistrate Judge Leung recommended
the following conclusions: (1) Plaintiff's claims for
monetary damages against Defendants in their official
capacities be dismissed without prejudice for lack of
jurisdiction; (2) Plaintiff's claims based on the
Minnesota Constitution be dismissed with prejudice; (3)
Plaintiff's official-capacity claims be dismissed without
prejudice; (4) Plaintiff's First Amendment claims be
dismissed without prejudice, except for his retaliation
claims against Defendants McGowan and Kosloski, including but
not limited to Kosloski's participation in the search of
Plaintiff's room; (5) Plaintiff's Fourth Amendment
claims be dismissed without prejudice, except as to
Defendants Wyatt, Beavens, Shorter, and Fisher, based on the
unclothed visual body searches on December 6 and 7, 2016; (6)
Plaintiff's Fourteenth Amendment claims be dismissed
without prejudice, except as to Defendants Wyatt, Beavens,
Gianinni, Fischer, Johnson, Brindamor, Aldrin, Lind,
Goeglein, Korby, Schesso, Shorter, Cowell, and Cellelo for
procedural due process based on Plaintiff's placement in
HSA on December 6 and 7, 2016; and (7) Plaintiff's
supervisory claims be dismissed without prejudice, except as
to Defendant Kosloski in connection with Plaintiff's
First Amendment Claims, and to Defendants Johnson Piper,
Richardson, Moser, Kniesel, Sadjak, Benoit, and Kosloski in
connection with Plaintiff's Fourteenth Amendment
procedural due process claims.
Defendants
object to Magistrate Judge Leung's recommendation to
decline dismissal of Plaintiff's Fourth Amendment claim
against Defendants Wyatt, Beavens, Shorter, and Fischer
related to alleged unclothed visual body searches on December
6 and 7, 2016. According to Defendants, the claims should
have been dismissed because the Fourth Amendment prohibits
only “unreasonable searches” and the unclothed
visual body searches were reasonable under the circumstances.
Defendants
also object to the Magistrate Judge's recommendation to
decline dismissal of Plaintiff's Fourteenth Amendment
procedural due process claim against Defendants Wyatt,
Beavens, Gianinni, Fischer, Johnson, Brindamor, Aldrin, Lind,
Goeglein, Korb, Schesso, Shorter, Cowell, and Collelo based
on Plaintiff's placement in HSA on December 6 and 7,
2016. Defendants argue that Plaintiff was not denied due
process because his placement in HSA was not a punishment and
because each placement was sufficiently short as not to
warrant atypical and significant hardship. Defendants argue
further that because there was no underlying procedural due
process violation, any related supervisory claim should also
be dismissed. If the underlying procedural process claims are
not dismissed, Defendants contend that related supervisory
claims against Defendants Johnson Piper, Richardson, Kniesel,
Sadjak, Moser, Benoit, and Kosloski should be dismissed
nonetheless because the allegation connecting them to the
alleged due process violations is a single conclusory
statement that is insufficient to plead a supervisory claim.
Moreover, Defendants argue that the supervisory claims
against Defendants Johnson Piper and Richardson should be
dismissed because they lacked sufficient oversight of HSA
hearing requirements or related MSOP policies of HSA to
provide a basis for supervisory liability.
Defendants
also object to the Magistrate Judge's recommendation that
Defendants are not entitled to qualified immunity in
connection with the unclothed visual body searches and HSA
placements on December 6 and 7, 2016. They argue that even if
Plaintiff could state Fourth or Fourteenth Amendment claims,
they are nonetheless entitled to qualified immunity because
they did not violate Plaintiff's clearly established
constitutional rights. They contend that caselaw establishes
that placing a client in HSA and conducting an unclothed
visual body search for a security reason is not a
constitutional violation.
Finally,
Defendants object to Magistrate Judge Leung's
recommendation to decline to dismiss Plaintiff's claim
for punitive damages with respect to all defendants other
than Defendants McGowan and Kosloski. Defendants contend that
Plaintiff fails to sufficiently allege evil motive or callous
indifference.
Plaintiff
objects to Magistrate Judge Leung's recommendation to
dismiss Plaintiff's Fourteenth Amendment substantive due
process claim. Plaintiff argues that the Magistrate Judge
applied the wrong standard to conclude that Plaintiff's
constitutional rights were not violated when he was placed in
HSA. Specifically, Plaintiff contends that the Magistrate
Judge should have applied the
“professional-judgment” standard instead of the
“shocks the conscience” standard. Plaintiff
argues that his constitutional rights were violated when he
was placed in HSA because defendants did not exercise
professional judgment when they determined that HSA was
appropriate.
Plaintiff
also objects to the Magistrate Judge's recommendation to
dismiss his First Amendment claims related to his free
exercise of religion. Plaintiff argues that the Magistrate
Judge should have looked beyond the four corners of his
Complaint to conclude that Defendants have retaliated against
him by denying him his constitutional right to exercise
religion.
I.
First Amendment Claim
Plaintiff
alleges that his religious freedom was infringed when he was
removed from one Native American ceremony and written up for
attending two others. (Doc. No. 1. (“Compl.”)
¶¶ 20, 25-26.) Magistrate Judge Leung recommended
dismissing Plaintiff's First Amendment claim because
Plaintiff failed to allege facts plausibly establishing that
his religious exercise was substantially burdened. (Report
and Recommendation at 28.) The Court agrees.
As the
Magistrate Judge correctly observed, “‘[t]o find
a substantial burden, the court must determine that the
challenged practices: (1) significantly inhibit or constrain
conduct or expression that manifests some central tenet of a
person's individual religious beliefs; (2) meaningfully
curtail a person's ability to express adherence to his or
her faith; or (3) deny a person reasonable opportunities to
engage in those activities that are fundamental to a
person's religion.'” (Id. at 26-27
(quoting Karsjens v. Piper, 336 F.Supp.3d 974, 991
(D. Minn. 2018) (internal quotation marks omitted)).)
The
Court agrees with the Magistrate Judge's determination
that the three incidents alleged in Plaintiff's complaint
fail to show a substantial burden on Plaintiff's ability
to express adherence to his religious beliefs. Plaintiff
argues that the Magistrate Judge should have considered
“the custom of the locality” to conclude that
Plaintiff's ability to exercise his faith was
substantially burdened by Defendants' attempt to
intimidate, isolate, and deprive Plaintiff of his
constitutional rights. (Doc. No. 70 (“Plaintiff's
Obj.”) at 14). Plaintiff describes these attempts in
both his response to Defendants' motion to dismiss (Doc.
No. 32 at 3-6), and his objection to the Response and
Recommendation (Plaintiff's Obj. at 11-14). Defendants
contend that these allegations are not properly before the
Court and request that they not be considered.
“It
is axiomatic that a complaint may not be amended by the
briefs in opposition to a motion to dismiss. To hold
otherwise would mean that a party could unilaterally amend a
complaint at will.” Morgan Distrib. Co. v.
Unidymanic Corp., 868 F.2d 992, 995 (8th Cir. 1989)
(internal citation omitted). The Court recognizes that the
Plaintiff is a pro se litigant, and therefore grants
him a certain degree of latitude. See Machen v.
Iverson, Civ. No. 11-1557, 2012 WL 566977, at *15 (D.
Minn. Jan. 23, 2012), report and recommendation
adopted, 212 WL 5672128 (D. Minn. Feb. 21, 2012).
Nonetheless, the Court agrees with the Magistrate Judge that
it is unclear from the additional allegations which of the
Defendants were involved in the acts complained of, or if the
claims are entirely new or supplementing existing ones. The
Court agrees with the Magistrate Judge's determination to
consider only the allegations in the Complaint, and adopts
his recommendation to dismiss Plaintiff's First Amendment
claim for the reasons stated above.[4]
II.
Fourth Amendment Claim
The
Fourth Amendment protects “against unreasonable
searches and seizures.” U.S. Const. amend. IV. “A
search occurs under the Fourth Amendment when . . .
‘the government violates a subjective expectation of
privacy that society recognizes as reasonable.'”
Arnzen v. Palmer, 713 F.3d 369, 372 (8th Cir. 2013)
(quoting Kyllo v. United States, 533 U.S. 27, 31-33
(2001)). “[I]nvoluntarily committed civilly committed
persons retain the Fourth Amendment right to be free from
unreasonable searches that is analogous to the right retained
by pretrial detainees.” Beaulieu v. Ludeman,
690 F.3d 1017, 1028 (8th Cir. 2012) (citing Serna v.
Goodno, 567 F.3d 944, 948-49 (8th Cir. 2009)). And,
“‘[a]lthough an involuntarily committed patient
of a state hospital is not a prisoner per se, his confinement
is subject to the same safety and security concerns as that
of a prisoner.'” Id. (quoting Revels
v. Vincenz, 382 F.3d 870, 874 (8th Cir. 2004). To
determine “reasonableness” in an institutional
setting, a court must balance “the need for the
particular search against the invasion of personal rights
that the search entails.” Bell v. Wolfish, 441
U.S. 520, 559 (1979); accord Serna, 567 F.3d at 949,
952-56. “Courts must consider the scope of the
particular intrusion, the manner in which it is conducted,
the justification for initiating it, and the place in which
it is conducted.” Bell, 441 U.S. at 559;
accord Serna, 567 F.3d at 952-53.
“In
Beaulieu, the Eighth Circuit upheld the MSOP's
unclothed visual body search policy under the facts of that
case.” Karsjens, 336 F.Supp.3d at 995 (citing
690 F.3d at 1030); see also Serna, 567 F.3d at
952-55. “Evaluating the constitutionality of such
searches, however, is a fact-dependent inquiry.”
Karsjens, 336 F.Supp.3d at 995; see, e.g.,
Bell, 441 U.S. at 559; Beaulieu, 690 F.3d
at 1027-30; Serna, 567 F.3d at 949-56; Yazzie v.
Moser, Civ. No. 12-399, 2014 WL 3687102, at *8-9 (D.
Minn. June 11, 2014), objections sustained in part and
overruled in part, 2014 WL 3687110 (D. Minn. July 24,
2014); Allan v. Ludeman, Civ. No. 10-176, 2011 WL
978768, at *4 (D. Minn. Jan. 18, 2011), adopting report
and recommendation, 2011 WL 978658 (D. Minn. Mar. 17,
2011).
Here,
Plaintiff alleges a Fourth Amendment claim based on two
unclothed visual body searches, one on December 6, and one on
December 7, 2016. (Compl. ¶¶ 34, 42.) Each preceded
his placement in the HSA. (Id. ¶¶ 34, 42.)
One search was conducted by Defendants Wyatt and Beavens; the
other was conducted by Defendants Shorter and Fischer.
(Id. ¶¶ 34, 42.) For each search,
Plaintiff alleges that Wyatt, Beavens, Shorter, and Fischer
refused to remove his handcuffs until he complied with the
search; he was not exhibiting dangerous and uncontrolled
behavior at the time he was searched and placed into the HSA;
and various reports confirm that he was not exhibiting such
behavior. (Id. ¶¶ 34, 42, 68, 74; see
Id. ¶ 46.)
As
Magistrate Judge Leung correctly observed in the Report and
Recommendation, “any claim on the use of unclothed
visual body searches ‘turns in part on the extent to
which th[e] Court has sufficient expertise and information in
the record to mandate, under the Constitution, the specific
restrictions and limitations sought by those who challenge
the visual search procedures at issue.'” (Report
and Recommendation at 39 (citing Florence v. Bd. of
Chosen Freeholders of the Cty. of Burlington, 566 U.S.
318, 322 (2012); accord Beaulieu, 690 F.3d at
1028).) The Court affirms that, “‘[i]n addressing
this type of constitutional claim[, ] courts must defer to
the judgment of correctional officials unless the record
contains substantial evidence showing their policies are an
unnecessary or unjustified response to problems of
[institutional] security.'” (Id. citing
Florence, 566 U.S. at 322-23; accord
Beaulieu, 690 F.3d at 1028.)
Defendants
argue that Plaintiff's claim must be dismissed because
the searches were reasonable under the circumstances.
(Defs.' Object. at 3.) They contend that while Plaintiff
alleges he was not acting dangerously or exhibiting out of
control behavior at the time of the HSA placements and
subsequent unclothed visual body searches, Plaintiff admits
that he was not following staff directives. (Id.;
see Compl. ¶¶ 34-37, 42-44.) Defendants
argue that failing to follow staff directives poses a
“risk to institutional security” and that the
searches were reasonable because they were conducted for a
legitimate security purpose. (Id. (citing
Beaulieu, 690 F.3d at 1028-29).)
The
Supreme “Court has confirmed the importance of
deference to correctional officials and explained that a
regulation impinging on an inmate's constitutional rights
must be upheld ‘if it is reasonably related to
legitimate penological interests.'”
Florence, 566 U.S. at 326 (quoting Turner v.
Safley, 482 U.S. 78, 89 (1987)); accord
Beaulieu, 690 F.3d at 1029. Nonetheless, “[t]he
test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application. In
each case it requires a balancing of the need for the
particular search against the invasion of personal rights
that the search entails.” Bell, 441 U.S. at
559.
Here,
the record does not provide sufficient information for the
Court to conclude that the Plaintiff has failed to state a
claim. “[S]trip searches conducted at MSOP facilities
may or may not be reasonable, and thus may or may not be
constitutional, depending on the circumstances.”
Allan, 2011 WL 978768, at *4. While Defendants argue
that failure to obey directives automatically poses a a risk
to institutional security, the Court is unpersuaded. Without
additional information regarding the specific directives and
the context surrounding them, the Court simply does not have
enough information to balance the necessity of the searches
against the invasion of personal rights that that the
searches entailed. Bell, 441 U.S. at 559. While
discovery may yield that the searches were reasonable because
Plaintiff's failure to follow legitimate staff directives
posed a genuine risk to institutional security, Plaintiff
alleges that the searches were unreasonable and unnecessary.
At this point in the proceedings, the Court assumes all of
the allegations in the Complaint are true and construes all
reasonable inferences in the light most ...