United States District Court, D. Minnesota
MICHAEL R. WHIPPLE, Plaintiff,
THOMAS EDWARDS, a PsyD, LP-Psychologist 3 MSOP St. Peter site; GARY GRIMM, Assistant Program Director MSOP St. Peter site; ROBERT ELSEN, a Behavior Analyst BAII MSOP St. Peter site; LUKE MOULDER, a Behavior Analyst BAZ MSOP St. Peter site; JAMES HICKEY, Officer of the Day O.D. MSOP St. Peter site; and DENNIS BENSON, former Chief Executive Officer of the Minnesota Sex Offender Program, Defendants.
Michael R. Whipple, MSOP prose plaintiff.
Anthony R Noss, MINNESOTA ATTORNEY'S GENERAL'S
OFFICE, for defendants.
MEMORANDUM OPINION AND ORDER
R. TUNHEIM CHIEF JUDGE
Michael R. Whipple brought this action against numerous
Defendants related to his civil commitment to the Minnesota
Sex Offender Program ("MSOP"), alleging a number of
violations of his state and federal constitutional rights.
Defendants brought a motion to dismiss, and U.S. Magistrate
Judge Hildy Bowbeer issued a Report and Recommendation
("R&R") recommending that all but one of
Plaintiff's claims be dismissed. Both parties filed
objections to the R&R. For the reasons stated below, the
Court will sustain Defendants' objections, overrule
Plaintiff's objections, adopt the R&R, and dismiss
Whipple's Complaint in whole.
facts of this case were described at length in the R&R,
which the Court hereby incorporates by reference. (R&R,
Jan. 14, 2019, Docket No. 49.) Accordingly, the Court will
only discuss facts pertinent to the parties' objections.
is involuntarily civilly committed to the MSOP. (Compl.
¶ 7, Oct. 17, 2013, Docket No. 1.) In July 2009, Whipple
was involved in a fight in the MSOP facility. (Id.
¶¶ 14-15.) As a result of this fight, Whipple was
handcuffed, subjected to a pat-search and a metal-detecting
wand search, and taken to the facility's High Security
Area ("HSA"). (Id. ¶ 21.) Once he
arrived at the HSA an unnamed MSOP security counselor
informed Whipple that he would have to undergo a strip search
if he wanted to have the handcuffs removed. (Id.)
result of the fight, Whipple was placed on Administrative
Restriction ("AR"). (Id. ¶ 26.) While
on AR, Whipple was only permitted to be outside his cell for
thirty minutes per eight-hour shift. (See id.) In
addition, Whipple was not allowed to receive visitors or
participate in therapeutic programming. (Id.) The AR
was modified in August 2009, but the aforementioned
restrictions were not affected. (Id. ¶¶
27-28.) Whipple remained on AR when transferred to a new
facility in November 2009. (Id. ¶ 31.)
brought this action in October 2013. (Id.) Whipple
asserts claims including violation of the Due Process Clause
of the Fourteenth Amendment, unreasonable search in violation
of of the Fourth Amendment, unreasonable seizure in violation
of the Fourth Amendment, denial of access to legal counsel in
violation of the Sixth Amendment, and violation of the First
Amendment right to free association. (Compl. ¶¶ 34,
36, 45, 59-81.)
Whipple brought this action, the MS OP was already in the
midst of litigation. In 2011, a class of individuals civilly
committed to the MSOP challenged the MSOP as facially
unconstitutional and alleged that various MSOP policies
violated their constitutional rights. See generally
Karsjens v. Jesson, Civ. No. 11-3659 (DWF/JJK), 2015 WL
420013 (D. Minn. Feb. 2, 2015). Pertinent to this case, Count
X of the Karsjens complaint alleged that the
MSOP's practice of searching those civilly committed to
the MSOP violated the Fourth Amendment. Id. at* 17.
Because the District Court had certified a class in the
Karsjens litigation consisting of all individuals
civilly committed to the MSOP, and because some of the claims
brought by Whipple in this case were also at issue in
Karsjens, this case was stayed pending the ultimate
resolution of Karsjens. (Fourth Am. Order at 29,
June 30, 2017, Docket No. 46.)
Karsjens litigation eventually proceeded to a bench
trial and, because there were thirteen separate claims, the
trial was broken down into two phases. Karsjens v.
Piper, 336 F.Supp.3d 974, 979 (D. Minn. 2018). In July
2015, the District Court found for the class plaintiffs on
the "Phase One" claims, which considered only
whether the MS OP was unconstitutional on its face and
whether the MS OP was unconstitutional as applied.
Id. Even though the Court's Phase One rulings
were appealed by the defendants, the Court lifted the stay in
this case in April 2016, reasoning that "it is unlikely
that the claims in [this case] will be affected by the Eighth
Circuit's ultimate ruling in the Karsjens claims
on appeal." (Order Lifting Stay, Apr. 14, 2016, Docket
No. 10.) With the stay lifted, Defendants in this case
brought Motions to Dismiss Whipple's complaint. (Mot. to
Dismiss, Sept. 7, 2016, Docket No. 17; Mot. to Dismiss, Oct.
13, 2016, Docket No. 26.)
January 3, 2017, the Eighth Circuit Court of Appeals reversed
the District Court's constitutional findings.
Karsjens v. Piper, 845 F.3d 394 (8th Cir.
2017). In May 2017, the Court issued an order staying
Karsjens in its entirety and recommended that any
cases in the District of Minnesota which raised substantially
similar claims also be stayed until he decided the remainder
of the Karsjens claims. (Fourth Am. Order at 30.)
This Court followed this recommendation and, in June 2017,
stayed all pending cases sufficiently related to
Karsjens, including Whipple's case.
(Id. at 31.)
August 2018, the District Court dismissed each of the
remaining Karsjens claims. See Karsjens,
336 F.Supp.3d at 998. Accordingly, the Court dismissed the
Karsjens litigation in its entirety, id,
and the stay in Whipple's case was lifted in October
2018. (Order Lifting Stay at 13, October 22, 2018, Docket No.
47.) Thereafter, the Magistrate Judge issued an R&R on
the Defendants' motions to dismiss. (R&R.) The
Magistrate Judge recommended that all Defendants except for
Dennis Benson and Gary Grimm be dismissed without prejudice.
(R&R at 2.) As to Benson and Grimm, the Magistrate Judge
further recommended dismissal of all claims against them
except Whipple's Fourth Amendment strip search claim
against them. (Id.) As a result, the recommendation
currently before the Court is that only the claim "that
Benson and Grimm violated Plaintiffs constitutional rights
through the creation and implementation of an unlawful policy
authorizing unreasonable unclothed visual searches of MSOP
clients" be allowed to go forward. (Id.) Both
parties objected to the R&R. (Defs.' Objs., Jan. 25,
2019, Docket No. 51; Pl.'s Objs., Feb. 1, 2019, Docket
No. 53.) The Court will address the Parties' objections