Benson v. Piper

          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 ...