Montin v. Gibson, 4:07CV3271

CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska
Writing for the CourtCheryl R. Zwart
PartiesJOHN MAXWELL MONTIN, Plaintiff, v. BILL GIBSON, Defendant.
Decision Date12 June 2012
Docket Number4:07CV3271

BILL GIBSON, Defendant.



Dated: June 12, 2012


This matter is before the court on the parties' competing motions for summary judgment. For the reasons set forth below, Plaintiff's motion, (filing no. 111) is denied and Defendant's motion, (filing no. 108) is granted.


1. Plaintiff John Maxwell Montin ("Montin") is a Florida resident. Filing No. 104, ¶1.
2. In 1993, Montin was criminally prosecuted in Hayes County Court for the charges of Use of a Firearm in the Commission of a Felony and First Degree False Imprisonment. Filing Nos. 104, ¶2; 113-29.
3. Montin was found to be not responsible by reason of insanity and was committed on an inpatient basis to the Lincoln Regional Center ("LRC"), by order of the Hayes County District Court. Filing No. 104, ¶3.
4. Defendant Bill Gibson ("Gibson") is the current administrative head of the LRC, an agency under the administrative supervision of the Nebraska Department of Health and Human Services ("DHHS"). Filing No. 110-1, ¶1.

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5. In 1995, Montin was transferred to S-2, a less restrictive ward than the ward where he was originally placed. Filing No. 104, ¶5.
6. Montin currently resides in S-1, the least restrictive ward at the LRC security facility, referred to as the Forensic Mental Health Services ("FMHS"). Filing No. 104, ¶6.
7. As of 1995, the FMHS administered a five-level program which included codes. Filing No. 104, ¶7. These codes determined levels of freedom or privileges the patients enjoyed both within the grounds and during on off-grounds activities. Filing No. 115, ¶10.
8. In 1995, Montin earned Code-4 status which was confirmed at the annual review hearing held by the Hayes County District Court. Filing No. 104, ¶¶ 8-9.
9. Code-4 status allowed Montin to take unsupervised walks about the LRC grounds. Filing No. 104, ¶12.
10. From mid-1995 until near the end of 1996, Montin took unsupervised walks about the grounds "nearly every day." Filing No. 104, ¶11.
11. After every unsupervised walk, Montin returned to the facility. There are no reports of any incidents or concerns with Montin's unsupervised walks. Filing No. 104, ¶12.
12. On September 19, 1995, a convicted sex offender, who had been committed to the LRC Sex Offender Program, "eloped" from the LRC. Filing No. 104, ¶14.

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13. All on-grounds activities, including unsupervised walks on the grounds of LRC, were suspended immediately after the sex offender escaped. Filing No. 104, ¶¶17-18.
14. Sometime thereafter, Code-4 privileges were suspended and later eliminated after the convicted sex offender escaped the LRC's grounds. The changes were made in the interest of public safety and were applied equally to all LRC patients. Filing No. 110-2 ¶3.
15. The official written policy regarding Code-4 privileges was not amended until sometime after January of 2004, (filing no. 113-19), although the restriction and elimination of Code-4 privileges occurred sometime prior to 2000. Filing No. 110-2, ¶3.
16. Montin was not returned to Code-4 status and his unsupervised walks have not been reinstated. Filing No. 104, ¶¶ 18 & 24.
17. The LRC makes annual reports (the "Reports") to the Hayes County District Court discussing Montin's status and progress. In turn, the Hayes County District Court issues an annual order based upon the Reports. See, e.g., Filing No. 113-11.
18. Each of these annual reports and orders indicated there has been no significant change in Montin's overall diagnosis or mental status since admission. The Reports further noted that Montin resisted medication and was unwilling or unable to accept his diagnosis of having a mental illness. The Hayes County District Court Orders held "the Lincoln Regional Center is the least restrictive treatment setting for meeting the needs of Mr. Montin and ensuring the safety of the general public." See, e.g., Filing Nos. 113-4, 113-9, & 113-16.

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19. An order of the District Court of Hayes County, dated April 15, 1997, provided that "the privileges requested [in the LRC annual report] are hereby granted, to wit:
. . .
e. Permission is granted to allow Mr. Montin, at such time that he has demonstrated continuous participation in and positive response to treatment, to go unescorted on the grounds of the LRC for preapproved periods of time for therapeutic purposes. To date, Mr. Montin has not yet fully participated in treatment, and therefore, has not yet met the conditions for this privilege. Such outings would be granted by the treatment team based upon continued participation and positive response in treatment, behavior warranting, and would be withdrawn when the treatment team feels his behavior does not warrant such a privilege or that a deterioration in his condition has occurred. Final approval or denial of such privilege would be determined by the defendant's treating physician. This privilege is known as Code 4.
Filing No. 113-6.
20. The report and court order from 1998 are silent on whether either Montin's treating physicians or the court would permit Code-4 privileges. Filing No. 113-9.
21. Each and every report and court order, each issued from April of 2001 through the present recommend Montin's privilege level be restricted to Code 3 - that is, restricting Montin to supervised activities on the LRC's grounds. See, e.g., Filing Nos. 113-14, 113-15, & 113-20.
22. The original decision to restrict Montin and other residents of the LRC from taking unsupervised walks on the grounds of LRC was solely an administrative decision and was not based on any consideration from his treatment team. Filing No. 104, ¶¶ 28-30.

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23. Montin was restricted from taking unsupervised walks after the elopement of the sex offender and a policy terminating unsupervised walks on the grounds of LRC was enforced sometime after the elopement but prior to 2000. Filing No. 104, ¶17; Filing No. 110-2, ¶3; Filing No. 113-38; & Filing No. 39, ¶7.
24. Currently, only patients who are on transitional or discharge status are allowed to participate in some limited unsupervised activities at LRC. These unsupervised activities are incorporated into the discharge or transitional plan. Filing No. 109, ¶3.
25. Mr. Montin is not currently, nor has he ever been, on transitional or discharge status. Filing No. 109, ¶3.
26. Montin has access to an outside area for supervised outdoor activities. (Filing No. 110-1, ¶4).


Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment is proper "if pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits . . . show that there is no genuine issue as to any material fact and that the move party is entitled to a judgment as a matter of law." In order to avoid summary judgment the opposing party must "set forth specific facts showing that there is a genuine issue of material fact for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine only if the evidence presented "is such that a reasonable jury could return a

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verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Due Process

As to his substantive due process claim, the plaintiff must demonstrate (1) he or she has a protected liberty interest or property interest at stake, and (2) he or she was deprived of such an interest without due process of the law. See Van Horn v. Nebraska State Racing Com'n, 304 F. Supp. 2d 1151 (2004). To constitute a liberty interest, an individual must have a legitimate claim or entitlement to the subject of the deprivation which rises to more than a unilateral hope or expectation. Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989). In "order to establish a liberty interest for a due process claim, the right has to be found in one of two places. The rights are found either under the U.S. Constitution or State law." Persechini v. Callaway, 651 F.3d 802, 806 (8th Cir. 2011).

Involuntarily committed individuals "are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are...

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