Gardner v. State

          Zorislav R. Leyderman, The Law Office of Zorislav R. Leyderman, counsel for plaintiff

          Bradley Richard Hutter, Minnesota Attorney General's Office, counsel for defendants

          ORDER AND REPORT AND RECOMMENDATION

          Katherine Menendez United States Magistrate Judge

         Joshua A. Gardner is a patient who is involuntarily civilly committed to the Minnesota Sex Offender Program (“MSOP”). Mr. Gardner brings this action under 42 U.S.C. § 1983, alleging that the defendants violated several of his constitutional rights when they subjected him to a strip-search after an incident at the MSOP facility in February of 2016.

         On January 15, 2019, this Court recommended that the defendants' motion to dismiss the complaint be granted because: several defendants were entitled to sovereign immunity; the complaint failed to state a substantive or procedural due process claim; two individual defendants were entitled to qualified immunity; and an official-capacity claim for prospective injunctive relief for an alleged violation of Mr. Gardner's Fourth Amendment rights was asserted against improper defendants. [R&R at 25-26, ECF No. 27.] The Court further concluded that Mr. Gardner should be given leave to replead his Fourth Amendment official-capacity claim for prospective injunctive relief by identifying a proper defendant. [Id. at 26.] The District Court adopted the report and recommendation and instructed Mr. Gardner to file a motion to amend the complaint if he wished to replead that official-capacity claim. [Order (Mar. 7, 2019), ECF No. 30.)

         Mr. Gardner filed a Motion to Amend the Complaint, which is now before the Court. [ECF No. 31.] The defendants argue that leave to amend should be denied as futile because: (1) the issue presented by his proposed new claim has already been fully litigated and decided against Mr. Gardner in Karsjens v. Piper, 336 F.Supp.3d 974 (D. Minn. 2018); and (2) even if the claim isn't precluded, the Proposed Amended Complaint cannot survive a motion to dismiss for failure to state a claim. For the reasons that follow, Mr. Gardner's motion to amend is denied. In addition, given the absence of any viable claims, the Court recommends that this action be dismissed.

         I. Background

         Mr. Gardner's Proposed Amended Complaint mostly includes the same factual allegations that he pled in his original Complaint. [Compare Compl., ECF No. 1, with Proposed Am. Compl., ECF No. 33.] Those underlying facts are recounted in detail in the Court's January 15, 2019 Report and Recommendation, and will not be repeated fully here. Nevertheless, to summarize the relevant allegations, on February 18, 2016, Mr. Gardner was a patient at the MSOP facility in Moose Lake, Minnesota. He was standing near two other MSOP patients who had a brief physical encounter that did not involve a weapon and resulted in no injuries. Although Mr. Gardner did not participate in the altercation, he was detained while MSOP staff members investigated his possible involvement. MSOP staff took him to the facility's High Security Area (“HSA”) to question him. Once in the HSA, MSOP staff members told him that he would be subjected to a videotaped strip-search procedure.

         Because Mr. Gardner had been sexually abused as a child, which included being forced by a family remember to remove his clothing while being video recorded, he pleaded with MSOP staff members not to go through with the unclothed visual body search (“UVBS”). He asked staff members to review video surveillance recordings first, insisting that they would show he was not involved in the incident involving the other patients. Mr. Gardner's requests were denied and he was brought into a room where he was forced to remove his clothing and was observed by MSOP staff. Afterward, MSOP staff reviewed the surveillance footage, which confirmed that Mr. Gardner had not been involved in the incident.

         Based on these incidents, Mr. Gardner seeks leave to amend his Complaint to assert an official-capacity claim for prospective injunctive relief against putative defendants Tony Lourey and Nancy A. Johnston. [Proposed Am. Compl. ¶¶ 6-7.] Mr. Lourey is the Commissioner of the Minnesota Department of Human Services, and Ms. Johnston is the Executive Director of MSOP. [Id.] Mr. Gardner claims that “MSOP maintains a custom/practice which permits unnecessary video-recorded strip searches of MSOP patients without justification and without a reasonable investigation.” [Id. ¶ 20.] He asserts that “MSOP maintains a custom of placing MSOP clients into HSA and strip searching all such clients prior to making a determination as to whether the client will be housed in HSA.” [Id.] Commissioner Lourey and Director Johnston are able to implement and modify MSOP policies and procedures and are aware of the allegedly unlawful custom/practice of strip-searching MSOP clients. [Id. ¶¶ 21-22.] However, Mr. Gardner claims that they have failed to take any steps to train MSOP staff regarding the Fourth Amendment's requirements and have demonstrated deliberate indifference to patients' Fourth Amendment rights. [Id. ¶ 22.] Mr. Gardner seeks an order requiring Commissioner Lourey and Director Johnston to terminate the allegedly unconstitutional custom and to implement new policies and training that prohibit and discourage unjustified strip searches of MSOP clients. [Id., Prayer for Relief, ¶ b.]

         II. Karsjens Litigation And Procedural History

         As noted above, in their opposition to the motion to amend the defendants point to a relatively recent decision in a case involving MSOP patients' challenge to searches conducted at MSOP. When Mr. Gardner filed this case, Karsjens v. Jesson, a class action lawsuit, had been pending in this District for several years. Karsjens involved a class of all persons civilly committed at MSOP, including Mr. Gardner. Karsjens v. Jesson, No. 11-cv-3659 (DWF/JJK), Doc. No. 1 (D. Minn. Dec. 21, 2011) (Complaint); see also id., Doc. No. 203 at 11 (D. Minn. July 24, 2012) (Order certifying a class of all patients currently civilly committed to MSOP). The plaintiffs in Karsjens raised several constitutional claims under § 1983, including challenges to various policies and practices at the MSOP facility. In particular, on October 28, 2014, the class plaintiffs filed a Third Amended Complaint alleging, among other things, violations of their constitutional rights to be free from unreasonable searches and seizures. Karsjens, No. 11-cv-3659, Doc. No. 635 (D. Minn. Oct. 28, 2014) (Third Am. Compl. ¶ 1) (hereafter “Karsjens TAC”).

         In the Third Amended Complaint, the Karsjens plaintiffs specifically alleged they were “subject to unwarranted ... unclothed body searches ... without reasonable suspicion being established.” Karsjens TAC ¶ 156. Further, they claimed that “Plaintiffs and Class members are now subject to strip searches upon entry to the HSA, regardless of the incident that led to being placed in the HSA, ” and that a refusal to remove clothing would result in forcible cutting off of an individual's clothing and physical inspection of the groin area and buttocks. Id. ¶ 157. The Karsjens class alleged the MSOP defendants violated their Fourth Amendment rights “through their search policies, procedures and practices.” Id. ¶ 318.

         Before United States District Judge Donovan W. Frank addressed the Fourth Amendment claims in Karsjens, he found that the MSOP was unconstitutional on its face and as applied. Karsjens v. Piper (“Karsjens I”), 845 F.3d 394, 402-03 (8th Cir. 2017) (describing Judge Frank's order). The Karsjens defendants appealed that ruling to the Eighth Circuit, which reversed and remanded the case to the district court for further proceedings on the remaining claims. Id. at 411.

         Several months after the Eighth Circuit's January 3, 2017 decision in Karsjens I, and while the Karsjens case was pending on remand, Chief Judge John R. Tunheim entered an Order staying all pending and future civil rights cases brought by individuals civilly committed at MSOP. [Stay Order (June 30, 2017), ECF No. 24.] This case was among those that were stayed. At the time the stay order was entered, the parties in this case had already completed briefing on a motion to dismiss, and the Court held a hearing on the motion, but had not issued a decision. [See ECF Nos. 14, 17, 19, and 23.]

         After Karsjens was remanded, the defendants sought summary judgment on the remaining class claims, including that they “have conducted unreasonable searches and seizures in violation of the Fourth Amendment to the United States Constitution....” Karjens v. Piper (“Karsjens II”), 336 F.Supp.3d 974, 978 (D. Minn. 2018). Judge Frank granted summary judgment to the defendants on all the class plaintiffs' Fourth Amendment claims. Id. at 994-96. The parties' arguments specifically addressed MSOP's “unclothed visual body search policy.” Id. at 995. Although Judge Frank did not explicitly mention the aspect of the search policy at issue in this case in his ruling, he determined “that Defendants are entitled to summary judgment on Plaintiffs' classwide challenge to the MSOP's policies implicating the Fourth Amendment.” Id. at 996. However, Judge Frank noted ...