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Ivey v. Johnston

United States District Court, D. Minnesota

July 24, 2019

Christopher Ivey and Eugene Banks, Plaintiffs,
v.
Nancy Johnston, Defendant.

          Christopher Ivey and Eugene Banks, pro se Plaintiffs.

          James H. Clark III, Office of the Attorney General for the State of Minnesota, for Defendant.

          REPORT AND RECOMMENDATION

          DAVID T. SCHULTZ UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiffs 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).

         FINDINGS OF FACT[1]

         Plaintiffs 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.[2] 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.

         MSOP 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.

         MSOP 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.

         Ivey 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 ¶ 36.

         CONCLUSIONS OF LAW

         Johnston 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 turn.

         I. Legal Standards

         A 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).

         In 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.

         II. Plaintiffs' State Constitutional Claims

         Ivey 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.”[3] 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.

         As to 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.[4]

         III. Plaintiffs' First Amendment Claims

         Ivey 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.[5] 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).

         Johnston's 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.

         A. ...


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