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Wickner v. Rose

United States District Court, D. Minnesota

July 3, 2019

Lance Wickner, Plaintiff,
Julie Rose, Thomas Lundquist, Katherine Klancher, Amanda Furey, Nate Johnson, Jack Leritz, Darien Menten, D. Rose, Vanderpool, J. Bonrud, Tina Joseph, Aaron Koll, Lorin Peterson, Logan Zuk, Mark Agurkis, Darrel Jensen, Justin Martin, James Martinez, Corinne Hoadley, John Doe, Nancy Johnston, Unidentified Grievance Coordinator, Debbie Thao, Courtney Menten, and Department of Human Services, Defendants.

          Lance Wickner, Pro Se Plaintiff

          Anthony Noss, Office of the Minnesota Attorney General, for Defendants



         Lance Wickner brings this lawsuit pursuant to 42 U.S.C. § 1983 challenging the constitutionality of the media possession policy of the Minnesota Sex Offender Program (MSOP) and its application to him under the First and Fourteenth Amendments. He also alleges he experienced retaliation for filing a previous lawsuit. Defendants moved to dismiss, and Wickner sought leave to amend his Amended Complaint. For the reasons stated below, the Court recommends that Defendants' motions to dismiss be granted, and denies Wickner's motion to amend.


         Wickner is a civilly committed person residing at MSOP in Moose Lake, Minnesota. Amended Compl. ¶ 2, Docket No. 6. In April 2017 he sued DHS and Nancy Johnston, MSOP's executive director, in her official capacity, and numerous clinical therapists, security counselors, and clinical supervisors in their individual capacity, [1]challenging the constitutionality of MSOP's Media Possession By Clients policy[2] (media possession policy) on its face and as applied to him. Wickner's complaint requests injunctive and declaratory relief, attorneys' fees and costs, and punitive damages of $10, 000 from each individual defendant. Id. at 1-3 (¶¶ 2-29), 29-30.

         Wickner alleges that, between August 22, 2011 and May 30, 2012, actions under the media possession policy by MSOP staff violated his First and Fourteenth Amendment rights. Id. ¶¶ 75-130. He also alleges Thomas Lundquist retaliated against him for filing a previous lawsuit that named Lundquist as a defendant. Id. ¶¶ 131-47. Specifically, he alleges “Lundquist order[ed] a facility wide ban on all catalogs and pamphlets that sell photographs of women in lingerie and swimsuits in retaliation for the civil suit in Wickner v. Rose, et al. 12-cv-01397 DWF/JJK.” Id. ¶ 136.

         Wickner filed his previous lawsuit on June 12, 2012 against MSOP and most of the same individual defendants. As here, he alleged that staff were not enforcing the media possession policy in a constitutional manner. See Wickner v. Rose, et al., District of Minnesota No. 12-cv-1397 (Wickner I).[3] That lawsuit was stayed three times in 2012, 2014, and 2015, [4] but was ultimately dismissed in November 2016. See Wickner I Docket No. 35 (Nov. 22, 2016 Order adopting Report & Recommendation (R&R)).

         The present lawsuit was stayed on June 30, 2017 pending resolution of Karsjens v. Jesson, District of Minnesota No. 11-cv-3659, a class action lawsuit brought on behalf of all civilly committed persons in MSOP. Stay Order, Docket No. 7. The Karsjens lawsuit raised several constitutional challenges to Minnesota's civil commitment statute and various MSOP policies and operations, including the media possession policy. See Karsjens v. Piper, 336 F.Supp.3d 974, 978, 993-94 (D. Minn. 2018); Karsjens Third Am. Compl. ¶ 16.l., Count IX (“Unreasonable Restriction of Free Speech and Free Association in Violation of the First Amendment”) ¶¶ 307-15, Noss Decl. Ex. 1, Docket No. 26-1. On August 23, 2018 the Court granted summary judgment to the defendants on the First Amendment claims in Count IX, which the class action plaintiffs did not appeal. Karsjens, 336 F.Supp.3d at 994; Notice of Appeal, Noss Decl. Ex. 8, Docket No. 26-1.

         The stay in this action was then lifted on October 22, 2018. Docket No. 9. On December 28, 2018 Defendants[5] filed motions to dismiss Wickner's Amended Complaint for lack of jurisdiction under Rule 12(b)(1) and failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Docket Nos. 20, 40. In response, Wickner moved to amend his Amended Complaint. Docket No. 29. He did not provide a redlined version showing the differences between his Amended Complaint and his Proposed Second Amended Complaint, [6] but elsewhere simply stated he “added new language throughout the complaint and added two new media policies.” Pl. Br. 1, Docket No. 30. His 32-page Proposed Second Amended Complaint attaches almost 300 pages of exhibits consisting of eight versions of the media possession policy[7][Docket No. 29-2], a 181-page list of media from the MSOP Permitted & Prohibited Media List [Docket Nos. 29-3, 29-4, 29-5], a 56-page MSOP Program Theory Manual (Feb. 2014) [Docket No. 29-6], and MSOP correspondence regarding his request for media review decisions from 2012 to 2016 [Docket No. 29-7].

         Wickner also filed a memorandum opposing defendants' motion to dismiss, asserting that the motion “will resolve itself under the [proposed second] amended complaint” because the 2018 and 2019 versions of the media possession policy are “even more broad and vague” and have not previously been litigated. Pl. Br. 2, Docket No. 31.


         I. Wickner's first Amendment Claims

          A. Sovereign Immunity and Preclusion

         Wickner sued the Minnesota Department of Human Services (DHS) and MSOP Executive Director Johnston in her official capacity for alleged violations of his First Amendment[8] rights based on MSOP's media possession policy. His First amendment claims against DHS are barred by sovereign immunity, his claims against Johnston are barred by res judicata, and his claims against the other defendants are barred by collateral estoppel.

         1. Claims Against DHS

         As the Court stated in Wickner I, DHS is an agency of the State of Minnesota under which MSOP is operated, and the State has not waived its sovereign immunity for these claims. The Wickner I Court therefore dismissed with prejudice all claims against the state entity for lack of jurisdiction. Wickner I R&R at 13-15, 19, Order Adopting R&R ¶ 3.a.[9] Likewise here, the claims against DHS should be dismissed because sovereign immunity bars Wickner's lawsuit against the state agency regardless of the type of relief sought. See Rose v. State of Nebraska, 748 F.2d 1258, 1262 (8th Cir. 1984) (absent consent, the Eleventh Amendment bars a suit in which the state or one of its agencies or departments is named as the defendant).

         2. Claims Against Johnston

         As here, Johnston was sued in her official capacity in Karsjens. See Karsjens, 336 F.Supp.3d at 974; Karsjens Third Am. Compl. ¶ 39, Noss Decl. Ex. 1, Docket No. 26-1. Wickner was indisputably a member of the plaintiff class of civilly committed persons residing at MSOP. See Karsjens v. Piper, 336 F.Supp.3d 974, 978 (D. Minn. Aug. 23, 2018) (class consists of all patients currently civilly committed to MSOP pursuant to Minn. Stat. § 253B, the Minnesota Civil Commitment and Treatment Act). Karsjens upheld MSOP's media possession policy on its face and as applied to all members of the class, rejecting their First Amendment challenge. See Karsjens, 336 F.Supp.3d at 993-94. Wickner's claims against Johnston are thus barred by res judicata.

         Res judicata (or “claim preclusion”) bars relitigation of a claim when three elements are met: (1) the prior judgment was rendered by a court of competent jurisdiction; (2) the judgment was a final judgment on the merits of the claim; and (3) the same cause of action and the same parties or their privies were involved in both cases. See Lane v. Peterson, 899 F.2d 737, 742 (8th Cir. 1990). All three elements are satisfied here.

         Karsjens raised several constitutional challenges to Minnesota's civil commitment statute and various MSOP policies and operations, including a claim that MSOP's media possession policy violated the class members' First Amendment rights. See Karsjens, 336 F.Supp.3d at 993-94; Third Am. Compl. ¶¶ 307-15, Noss Decl. Ex. 1, Docket No. 26-1. The Court applied the modified Turner standard in considering whether MSOP's institutional policies, including the media possession policy, were “reasonably related to legitimate institutional and therapeutic interests.” See Karsjens, 336 F.Supp.3d at 992-93 (citing Turner v. Safley, 482 U.S. 78 (1987)). The Court granted summary judgment to defendants on the class plaintiffs' First Amendment claims and specifically noted that “MSOP's media policy restricting access to certain objectionable content has been deemed constitutional within this District.” Id. at 993-94 (citing Banks v. Jesson, No. 11-cv-1706, 2016 WL 3566207, at *8 (D. Minn. June 27, 2016) (“MSOP is constitutionally allowed to implement and enforce a policy which prohibits detainees from possessing items depicting nudity and visible genitals.”)).

         The Karsjens Court stated:

“[T]he Court concludes that summary judgment is warranted on Plaintiffs' First Amendment claims in Count IX. In particular, the Phase One trial testimony of the Rule 706 Experts as well as caselaw evaluating the MSOP policies informs this Court's conclusions with respect to the policies challenged under this claim. Plaintiffs have failed to raise a genuine dispute over whether Defendants' policies implicating speech and association are an unreasonable restriction on Plaintiffs' First ...

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