United States District Court, D. Minnesota
Joshua A. Gardner, Plaintiff,
v.
State of Minnesota; Minnesota Department of Human Services; Minnesota Sex Offender Program; and Brian Ninneman, Randy Gordon, Troy Doe, and J. Doe, all in their individual and official capacities, Defendants.
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 ...