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Whipple v. Edwards

United States District Court, D. Minnesota

March 25, 2019

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.



         Plaintiff 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.


         The 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.


         Whipple 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.)

         As a 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.)


         Whipple 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.)

         When 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.)

         The 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.)

         On 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.)

         In 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 in turn.


         I. ...

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