United States District Court, D. Minnesota
Christopher Ivey and Eugene Banks, pro se Plaintiffs.
H. Clark III, Office of the Attorney General for the State of
Minnesota, for Defendant.
REPORT AND RECOMMENDATION
T. SCHULTZ UNITED STATES MAGISTRATE JUDGE
Christopher Ivey and Eugene Banks, civilly committed
residents of the Minnesota Sex Offender Program
(“MSOP”), bring the present lawsuit under 42
U.S.C. § 1983 challenging two MSOP practices they argue
violate their free speech rights under the United States and
Minnesota constitutions. Defendant Nancy Johnston, the
Executive Director of MSOP, moves to dismiss the lawsuit. The
court concludes that the state constitutional claims, the
claims against Johnston in her personal capacity, and
Plaintiff Banks must be dismissed. However, Plaintiff Ivey
has sufficiently pleaded claims under the First Amendment to
survive dismissal under Rule 12(b)(6).
Ivey and Banks are civil detainees, committed to MSOP
pursuant to Minnesota law as being either sexually dangerous
persons, having a “sexual psychopathic personality,
” or both. Compl. ¶ 2, Docket No. 1; Minn. Stat.
§ 253D.02, subds. 15-16. MSOP is a program of the
Minnesota Department of Human Services. Compl. ¶ 3. Ivey
and Banks reside at the MSOP facility in Moose Lake,
Minnesota. Id. at ¶ 2. Although both Plaintiffs
previously served prison sentences, neither is still subject
to any continued limitations to their civil rights stemming
from the prior criminal convictions. Id. at
¶10. For instance, both Plaintiffs have voted while
committed to MSOP, and Banks has run for mayor of Moose Lake.
Id. at 11-12; Aff. of Eugene Banks in Supp. of
Compl. ¶ 4, Docket No.3. Defendant Johnston is the current
Executive Director of MSOP. Id. at ¶ 3.
Plaintiffs bring this action against Johnston in both her
official and individual capacity. Id.
does not allow Plaintiffs or any resident access to the
internet, except in rare and seemingly unconfirmed instances
involving provisional discharge from the Program.
Id. at ¶ 6. However, according to a written
response by MSOP administration, even this is apparently not
the case. Id. MSOP does provide civilly committed
residents use of computers, but blocks access to the internet
and e-mail programs on those computers. Id. at
¶ 19. Because of this ban on internet access, Plaintiffs
cannot view websites such as Twitter, which President Trump
has stated is a preferred medium for communicating with the
public. Id. at ¶¶ 16-17. The Moose Lake
facility already has servers and internet, which are
currently utilized by MSOP staff. Id. at ¶ 19.
Further, content filters and other commercials tools exist
and are currently used by government agencies, schools, and
public libraries. Id.
also has a practice of blocking access to certain television
stations provided by Mediacom, the Moose Lake facility's
cable provider, as part of the current cable package.
Id. at ¶¶ 20, 22. Specifically, Plaintiffs
allege that they do not receive “PBS 2, MN Channel,
C-SPAN 3, [or] the local access channel carried by
Mediacom.” Id. at ¶ 20. Mediacom is
required to carry all local broadcast stations, as well as
provide at least one public access channel. Id. If
not blocked by MSOP, Mediacom would provide these channels as
part of the current subscription package at no additional
cost. Id. at ¶ 22. Thus, although Mediacom
carries these channels, MSOP affirmatively blocks
Plaintiffs' access to them, despite allowing them access
to all other channels in the Mediacom package. Id.
and Banks brought the present lawsuit in May 2018, arguing
that the aforementioned policies violate their rights under
both the United States and Minnesota constitutions.
Id. at ¶¶ 25-32. They seek a declaration
that Johnston's policies against internet and cable TV
access violate their rights and an injunction prohibiting
continued enforcement of these polices. Id. at
¶¶ 33-35. They also seek nominal damages against
Johnston in her individual capacity. Id. at ¶
moves to dismiss Plaintiffs' Complaint, asserting the
following legal bases: (1) there is no private cause of
action under the Minnesota Constitution; (2) Plaintiffs fail
to state a claim for which relief can be granted under the
First Amendment; (3) Banks is barred from re-litigating
either of his First Amendment claims; and (4) Johnston is
entitled to qualified immunity in her individual capacity. If
Johnston is correct regarding the first two grounds,
Plaintiffs' entire lawsuit must be dismissed. The Court
thus considers each of the four grounds for dismissal in
motion to dismiss under Rule 12(b)(6) tests the facial
plausibility of a complaint. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “[A]
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of the facts alleged is improbable,
and ‘that a recovery is very remote and
unlikely.'” Id. at 556 (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). A
court considering dismissal under 12(b)(6) examines whether a
complaint contains “sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible
on its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
Although it must accept all factual content in a complaint as
true, a court may ignore “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements[.]” Id. “Though pro se
complaints are to be construed liberally, they still must
allege sufficient facts to support the claims
advanced.” Stone v. Harry, 364 F.3d 912, 914
(8th Cir. 2004) (internal citation omitted).
deciding a motion to dismiss under Rule 12(b)(1) for lack of
subject matter jurisdiction, a court may consider the entire
record and is not limited to the pleadings. Osborn v.
United States, 918 F.2d 724, 728-29 (8th Cir. 1990).
When a jurisdictional question exists, the “court is
free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case.” Id.
at 730 (quoting Mortensen v. First Fed. Sav. & Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). The
plaintiff's allegations are not entitled to a presumption
of truthfulness, and the existence of disputed material facts
does not preclude a court from deciding the jurisdictional
issue. Id. The burden of proof that jurisdiction
exists remains with the plaintiff. Id.
Plaintiffs' State Constitutional Claims
and Banks assert that Johnston's policies blocking
internet and specific cable channels violate their free
speech rights under the Minnesota Constitution. To the extent
they assert these claims against Johnston in her official
capacity, this Court lacks subject matter jurisdiction.
“The requirement that jurisdiction be established as a
threshold matter springs from the nature and limits of the
judicial power of the United States and is inflexible and
without exception.” Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 94 (1998) (internal
quotations omitted). The Eleventh Amendment “bars a
suit against state officials when the state is the real,
substantial party in interest.” Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984)
(internal quotation omitted). “This constitutional bar
applies to pendent claims as well.” Id. at
120. Plaintiffs have not alleged, much less demonstrated,
that Minnesota has waived its sovereign immunity in the
present case. By suing Johnston in her official capacity,
Ivey and Banks clearly intended that MSOP, a state entity,
would be enjoined from continuing the conduct that aggrieves
them. See Id. at 123-24 (finding an injunction
against state and county officials to alter conditions at a
state facility was substantially relief against the state
itself). The Eleventh Amendment prohibits such a suit, so
Plaintiffs' state law claims against Johnston in her
official capacity are dismissed.
any state constitutional claim that may remain against
Johnston in her individual capacity, “there is no
private cause of action for violations of the Minnesota
Constitution.” E.g., Eggenberger v. West
Albany Twp., 820 F.3d 938, 941 (8th Cir. 2016) (quoting
Guite v. Wright, 976 F.Supp. 866, 871 (D. Minn.
1997)). Taking all of Plaintiffs' allegations as true,
they fail to state a claim as a matter of law. Accordingly,
Plaintiffs' claims arising under the Minnesota
Constitution are dismissed in their entirety.
Plaintiffs' First Amendment Claims
and Banks further allege-and federal jurisdiction over this
case is premised upon the claim-that Johnston's conduct
violates their free speech rights under the First Amendment
to the United States Constitution. To state a viable §
1983 claim, “a plaintiff must show that he was deprived
of a right secured by the Constitution . . . and that the
deprivation was committed by a person acting under color of
state law.” Alexander v. Hedback, 718 F.3d
762, 765 (8th Cir. 2013). A plaintiff must also plead facts
showing each defendant's personal involvement in the
alleged deprivation. Ellis v. Norris, 179 F.3d 1078,
1079 (8th Cir. 1999).
argument for dismissing Plaintiffs' First Amendment
claims is a narrow one. She does not argue that Plaintiffs
failed to plead her personal involvement in any of the
alleged conduct, or that she was not acting under the color
of state law. Nor does she contend that, even if Plaintiffs
have the particular rights at issue, they've failed to
plead conduct showing a violation of such a right. Rather,
Johnston argues Plaintiffs have failed to state a viable
claim because Plaintiffs, as MSOP clients, do not have a
constitutionally protected “right to use the
internet” or “to watch any specific television
channel.” Def.'s Mem. 11, 13. For the reasons
stated below, this argument fails at the pleading stage.