United States District Court, D. Minnesota
ORDER ACCEPTING REPORT AND RECOMMENDATION
C. TOSTRUD UNITED STATES DISTRICT JUDGE
Richard Fageroos, Jr., who is civilly committed in the
Minnesota Sex Offender Program ("MS OP"), commenced
this action pro se by filing a complaint under 42 U.S.C.
§ 1983; he alleges several constitutional violations
arising out of his 75-day confinement in the High Security
Area ("HSA"), which occurred after he refused to
move to his new room assignment. Compl. [ECF No. 1].
Essentially, Fageroos brings three varieties of
constitutional claims (procedural-due-process and
substantive-due process claims under the Fourteenth
Amendment, as well as Fourth Amendment claims), each premised
on two alleged wrongs: (1) his confinement in the HSA and (2)
his deprivation of mail during that confinement. This case is
before the Court on a Report and Recommendation [ECF No. 50]
issued by Magistrate Judge Leo I. Brisbois. Magistrate Judge
Brisbois recommended granting Defendants' motion to
dismiss. R&R at 17-18. Fageroos has objected to the
Report and Recommendation. ECF No. 51. Defendants responded,
arguing that the Report and Recommendation should be adopted
in its entirety. ECF No. 52. Because Fageroos has objected,
the Court is required to review the Report and Recommendation
de novo pursuant to 28 U.S.C. § 636(b)(1) and Local Rule
72.2(b)(3). The Court has undertaken that de novo review and
has concluded that Magistrate Judge Brisbois's analysis
and conclusions are correct.
Judge Brisbois correctly concluded that Fageroos's claims
against Defendants in their official capacities seeking
monetary damages should be dismissed for lack of
subject-matter jurisdiction because "Plaintiff has not
established that Minnesota has waived its immunity from
damages for any of the claims at issue in this case, nor has
Plaintiff established that Congress abrogated Minnesota's
immunity with respect to any of the claims at issue."
R&R at 7 (citing Murphy v. State of Ark, 127
F.3d 750, 754 (8th Cir. 1997)). And Fageroos seems to agree
with this aspect of the Report and Recommendation.
See Obj. at 2 ("Plaintiff recognizes and
understands that he cannot recover damages against Defendants
in their official capacities. . . . If Plaintiff s claims are
barred by sovereign immunity, then it is certainly true that
this case must be summarily dismissed for lack of subject
matter jurisdiction."). But because this is a dismissal
for lack of subject-matter jurisdiction, dismissal is
properly without, rather than with, prejudice. See, e.g.,
Gardner v.Minn., m. 16-cv-03999 (JNE/KMM), 2019 WL
1084714, at *4(D. Minn. Jan. 19, 2019) (concluding court
lacked subject-matter jurisdiction over § 1983 claims
against State of Minnesota, DHS, and MSOP, as well as claims
for monetary damages against individual defendants in their
official capacities, based on Eleventh Amendment sovereign
immunity, and dismissing without prejudice), R&R
adopted, 2019 WL 1086338 (D. Minn. Mar. 7, 2019);
Benson v. Piper, No. 17-cv-266 (DWF/TNL), 2019 WL
2017319, at *3-4 (D. Minn. Jan. 25, 2019) ("[T]o the
extent Plaintiff seeks monetary damages against Defendants in
their official capacities, the Court recommends that such
claims be dismissed without prejudice."), R&R
adopted, 2019 WL 1307883 (D. Minn. Mar. 22, 2019). The
Report and Recommendation will be modified in this respect.
See R&R at 7, 18; see also Hart v. United
states, 630 F.3d 1085, 1091 (8th Cir. 2011) (affirming
dismissal for lack of subject-matter jurisdiction but
modifying the dismissal to be without prejudice)
Judge Brisbois also recommended dismissing Fageroos's
§ 1983 claims against the individual-capacity Defendants
for violating his procedural-due-process rights under the
Fourteenth Amendment. R&R at 10. He properly found that
even liberally construing the complaint, Fageroos
"failed to allege sufficient facts to support a
plausible claim." Id. As for Fageroos's
procedural-due-process claim based on his placement and
confinement in the HS A, his only allegation is that his
rights were violated because he was never out of behavioral
control as required by MSOP policy. Compl. ¶ 26 [ECF No.
1]. But the Eighth Circuit has recognized that placing a
civilly committed individual "in seclusion for a short
period of time"-there, approximately two hours-based on
"uncooperative" behavior and an inability "to
follow directions" is a "reasonable means" of
effectuating a legitimate government objective of
"maintaining order and efficiently managing the
facility." Hall v. Ramsey Cty., 801 F.3d 912,
919-20 (8th Cir. 2015) (finding no violation of procedural
due process under the Fourteenth Amendment). And Fageroos
never alleges that he was deprived of the opportunity to be
heard or to appeal the decision to temporarily place him in
the HSA. In fact, his complaint confirms that he received
verbal and written notice of why he was placed in the HSA,
and that he chose to remain in the HSA. See Compl.
¶¶ 10-14, 17 ("Fageroos declined to speak with
staff about moving and remains in the [HSA]."; see
also Favors v. Hoover, No. 13-cv-428 (JRT/LIB), 2014 WL
4954687, at *I4 (D. Minn. Sept. 30, 2014) ("Instead, the
record shows [plaintiff] received notice and an opportunity
to contest his isolation-the sort of process approved of in
cases like Senty-Haugen [v. Goodno, 462
F.3d 876, 886 (8th Cir. 2006)]."). This holding is
consistent with a recent analogous case in the District,
Schlumpberger, which involved another plaintiff who
was placed in HSA at MSOP after refusing to move to his newly
assigned room. See Schlumpberger v. Osborne, No.
16-cv-78 (SRN/TNL), 2019 WL 1118912, at *5-9 (D. Minn. Jan.
25, 2019), R&R adopted, 2019 WL 927322 (D. Minn.
Feb. 26, 2019) ("Even if Schlumpberger's placement
in HSA/Protective Isolation implicated a protected liberty
interest, he fails to allege that he received less process
than he was due.").
with Fageroos's procedural-due-process claim based on the
restriction of his mail while he was in the HSA. As Judge
Brisbois recognized, there are no allegations in the
complaint about Plaintiff "attempting] to utilize the
procedures for appeal of the temporary restriction of his
mail" or that "Defendants prevented him from doing
so." R&R at 11; accord Green v. Lake, No.
14-cv-1056 (ADM/SER), 2019 WL 1324851, at *6 (D. Minn. Mar.
25, 2019) (adopting R&R's dismissal of
procedural-due-process claims for confinement in HSA for more
than 24 hours because plaintiff "does not allege any
facts to show that he received less process than was
due," such as "that he invoked MSOP's grievance
procedure to challenge his HSA placement"). Accordingly,
his procedural-due-process claims are properly dismissed
without prejudice for failure to state a claim.
also brings substantive-due-process claims relating to his
HSA confinement and mail restrictions, which Judge Brisbois
again recommends dismissing for failure to state a claim.
See R&R at 14-15. It cannot be said that keeping
an individual in HSA for 75 days without mail while offering
daily that he could leave confinement for his new room
assignment "rise[s] to the level of being so severely
egregious or outrageous as to demonstrate a brutal and
inhumane abuse of power shocking to the conscience."
Benson, 2019 WL 2017319, at *26. "It is
well-settled that segregated confinement," in and of
itself, "is not a hardship that can give rise
to an actionable due process claim." Ahmed v.
Fenesis, No. 05-cv-2388 (JRT/FLN), 2007 WL 2746842, at
*9 n.6 (D. Minn. Sept. 19, 2007); see also Portley-el v.
Brill, 288 F.3d 1063, 1065 (8th Cir. 2002) ("We
have consistently held that administrative and disciplinary
segregation are not atypical and significant hardships
"); Kennedy v. Blankenship, 100 F.3d 640,
642-43 & n.2 (8th Cir. 1996) (placement in punitive
isolation was not an atypical or significant deprivation of
liberty, despite including restrictions in mail, telephone,
visitation, commissary, and personal-possession privileges).
Nor is the length of confinement, made lengthy only because
of Fageroos's own choices, "so 'atypical and
significant' to trigger the protections of the Due
Process clause." Haggins v. Minn. Comm'r of
Corrections, Civ. No. 10-1002 (DWF/LIB), 2011 WL
4477320, at *4 (D. Minn. July 5, 2011) (collecting cases
supporting fact that 19-month punitive segregation was not a
due-process violation), R&R adopted, 2011 WL
4477319 (D. Minn. Sept. 27, 2011). Again, this holding is
consistent with District precedent applying the Fourteenth
Amendment to a nearly identical fact pattern. See
Schlumpberger, 2019 WL 1118912, at *9-ll (dismissing
substantive-due-process claim for implausibility because even
though the HAS "implicates Plaintiffs interest in being
free from unnecessary bodily restraint," he did not
allege conscience-shocking treatment").
the Report and Recommendation recommends dismissing
Fageroos's claim for an unconstitutional seizure in
violation of the Fourth Amendment based on his detention in
the HSA. First, Fageroos argues that the first 24-hour
detention was unconstitutional because he was not out of
behavioral control. But "[t]he decision to place a
civilly committed individual in HSA is presumptively valid if
made by a professional," Youngberg v. Romeo,
457 U.S. 307, 323 (1982), and Fageroos "alleges no facts
to show that his confinement in HSA was a departure from
accepted practice or was not based on professional
judgment," Green, 2019 WL 1324851, at *5.
Fageroos also argues that it was unconstitutional to detain
him for more than 24 hours when was not out of behavioral
control. But the record-including allegations in
Fageroos's own complaint-supports Defendants'
position that Fageroos was authorized to leave the HSA the
very same day he was placed therein. See Compl.
¶ 12; Resp. at 5; see also R&R at 15. It
was Fageroos who refused to leave the HSA because he refused
to move to his newly assigned room, "and thus, he
voluntarily chose to remain in the HSA." R&R at 15.
He continued to choose to remain in the HSA despite being
asked if he was ready to leave on a daily basis. Id.
Such a voluntary decision does not form the basis for a
Fourth Amendment claim. Id. at 15-16 (citing
Florida v. Bostick, 501 U.S. 429, 439 (1991)
("The Fourth Amendment proscribes unreasonable searches
and seizures; it does not proscribe voluntary
cooperation.")). What's more, like Magistrate Judge
Brisbois and the Schlumpberger court concluded, the
violation of a liberty interest in this context is more
properly viewed through the lens of a due-process claim.
See R&R at 16; Schlumpberger, 2019 WL
1118912, at *I2; see also Whipple v. Edwards, No.
13-cv-2861 (JRT/HB), 2019 WL 2016782, at *ll (D. Minn. Jan.
14, 2019) (dismissing Fourth Amendment claim for 100-day
confinement at MS OP, reasoning that the Fourth Amendment
Claim fails for the same reasons as plaintiffs procedural and
substantive due-process claims), R&R adopted in
relevant part, 2018 WL 1324862 (D. Minn. Mar. 25, 2019).
Judge Brisbois also concluded that the temporary restriction
of Fageroos's mail did not implicate his property rights
under the Fourth Amendment. R&R at 16. Fageroos has not
cited, nor has the Court independently located, any precedent
for assessing a mail-deprivation claim under the Fourth
Amendment. See Id. Like the Magistrate Judge
concluded, "the Eighth Circuit has consistently held
that temporarily withholding mail from confined persons is
constitutional." Id. (citations omitted).
Fageroos objects that "75 days is not temporary,"
Obj. at 15, but there is ample authority that mail
deprivations for similar or greater periods of time are
constitutional (albeit under different constitutional
provisions). See, e.g., Little v. Norris, 787 F.2d
1241, 1243 (8th Cir. 1986) (noting that "[t]he purpose
of withholding personal mail is to make punitive isolation
unpleasant, and thereby discourage improper behavior and
promote security within the prison"); cf. Gregory v.
Auger,768 F.3d 287, 289 (8th Cir. 1985) (concluding
60-day withholding of mail did not violate First Amendment,
and noting that "the Reformatory could properly have
established mail procedures far more restrictive than this,
so long as the disciplinary withholding of mail was only to
be temporary), cert, denied,474 U.S. 1035 (1985);
Jackson v. Brookhart,640 F.Supp. 241, 242 (S.D.
Iowa 1986) (citing Gregory and affirming
constitutionality of withholding mail for 286 days while