Fageroos v. Richardson

• Decision Date: 12 July 2019
• Docket Number: File No. 16-cv-04230 (ECT/ECW)
• Parties: Richard Fageroos, Jr., Plaintiff, v. Shelby Richardson, Executive Director Minnesota Sex Offender Program; Kevin Moser, MSOP-Moose Lake Facility Director; Blake Carey, Complex, 1-A Unit Director; Peter D. Puffer, MSOP-Moose Lake Clinical Director; Rick O'Conner, Security Counselor; Justina Wandling, Primary Therapist Unit 1-D; Kelli Bodie-Miner, Clinical Supervisor Unit 1-D; Julianna Beavens, Group Supervisor/Office of the Day; Allison Collins, Primary Therapist Complex 1-A; Heidi Menard; and Department of Human Services. Defendants.
• Court: U.S. District Court — District of Minnesota

Richard Fageroos, Jr., Plaintiff, v. Shelby Richardson, Executive Director Minnesota Sex Offender Program;

Kevin Moser, MSOP-Moose Lake Facility Director; Blake Carey, Complex,

1-A Unit Director; Peter D. Puffer, MSOP-Moose Lake Clinical Director;

Rick O'Conner, Security Counselor; Justina Wandling, Primary Therapist Unit 1-D;

Kelli Bodie-Miner, Clinical Supervisor Unit 1-D; Julianna Beavens,

Group Supervisor/Office of the Day; Allison Collins, Primary Therapist Complex 1-A;

Heidi Menard; and Department of Human Services. Defendants.

File No. 16-cv-04230 (ECT/ECW)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

July 12, 2019

ORDER ACCEPTING REPORT AND RECOMMENDATION

Plaintiff Richard Fageroos, Jr., who is civilly committed in the Minnesota Sex Offender Program ("MSOP"), 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.

I

A

Magistrate 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-matterjurisdiction, dismissal is properly without, rather than with, prejudice. See, e.g., Gardner v. Minn., No. 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)

B

Magistrate 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 HSA, 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 "inseclusion 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 *14 (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.").

So too 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 inthe complaint about Plaintiff "attempt[ing] 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.

C

Fageroos 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) (placementin 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 *9-11 (dismissing substantive-due-process claim for implausibility because even though the HAS "implicates Plaintiff's interest in being free from unnecessary bodily restraint," he did not allege conscience-shocking treatment").

D

Finally, 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...