Whipple v. Edwards
| Decision Date | 25 March 2019 |
| Docket Number | Civil No. 13-2861 (JRT/HB) |
| Parties | MICHAEL R. WHIPPLE, Plaintiff, v. THOMAS EDWARDS, a PsyD, LP-Psychologist 3 MSOP (St. Peter site); GARY GRIMM, Assistant Program Director MSOP (St. Peter site); ROBERT ELSEN, a Behavior Analyst (BAII) MSOP (St. Peter site); LUKE MOULDER, a Behavior Analyst (BAZ) MSOP (St. Peter site); JAMES HICKEY, Officer of the Day (O.D.) MSOP (St. Peter site); and DENNIS BENSON, former Chief Executive Officer of the Minnesota Sex Offender Program, Defendants. |
| Court | U.S. District Court — District of Minnesota |
Michael R. Whipple, MSOP No. 209714, 1111 Highway 73, Moose Lake, MN 55767, pro se plaintiff.
Anthony R. Noss, MINNESOTA ATTORNEY'S GENERAL'S OFFICE, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101, for defendants.
Plaintiff Michael R. Whipple brought this action against numerous Defendants related to his civil commitment to the Minnesota Sex Offender Program ("MSOP"), alleging a number of violations of his state and federal constitutional rights. Defendants brought a motion to dismiss, and U.S. Magistrate Judge Hildy Bowbeer issued a Report and Recommendation ("R&R") recommending that all but one of Plaintiff's claims be dismissed. Both parties filed objections to the R&R. For the reasons stated below, the Court will sustain Defendants' objections, overrule Plaintiff's objections, adopt the R&R, and dismiss Whipple's Complaint in whole.
The facts of this case were described at length in the R&R, which the Court hereby incorporates by reference. (R&R, Jan. 14, 2019, Docket No. 49.) Accordingly, the Court will only discuss facts pertinent to the parties' objections.
Whipple is involuntarily civilly committed to the MSOP. (Compl. ¶ 7, Oct. 17, 2013, Docket No. 1.) In July 2009, Whipple was involved in a fight in the MSOP facility. (Id. ¶¶ 14-15.) As a result of this fight, Whipple was handcuffed, subjected to a pat-search and a metal-detecting wand search, and taken to the facility's High Security Area ("HSA"). (Id. ¶ 21.) Once he arrived at the HSA an unnamed MSOP security counselor informed Whipple that he would have to undergo a strip search if he wanted to have the handcuffs removed. (Id.)
As a result of the fight, Whipple was placed on Administrative Restriction ("AR"). (Id. ¶ 26.) While on AR, Whipple was only permitted to be outside his cell for thirty minutes per eight-hour shift. (See id.) In addition, Whipple was not allowed to receive visitors or participate in therapeutic programming. (Id.) The AR was modified in August 2009, but the aforementioned restrictions were not affected. (Id. ¶¶ 27-28.) Whipple remained on AR when transferred to a new facility in November 2009. (Id. ¶ 31.)
Whipple brought this action in October 2013. (Id.) Whipple asserts claims including violation of the Due Process Clause of the Fourteenth Amendment, unreasonable search in violation of of the Fourth Amendment, unreasonable seizure in violation of the Fourth Amendment, denial of access to legal counsel in violation of the Sixth Amendment, and violation of the First Amendment right to free association. (Compl. ¶¶ 34, 36, 45, 59-81.)
When Whipple brought this action, the MSOP was already in the midst of litigation. In 2011, a class of individuals civilly committed to the MSOP challenged the MSOP as facially unconstitutional and alleged that various MSOP policies violated their constitutional rights. See generally Karsjens v. Jesson, Civ. No. 11-3659 (DWF/JJK), 2015 WL 420013 (D. Minn. Feb. 2, 2015). Pertinent to this case, Count X of the Karsjens complaint alleged that the MSOP's practice of searching those civilly committed to the MSOP violated the Fourth Amendment. Id. at *17. Because the District Court had certified a class in the Karsjens litigation consisting of all individuals civilly committed to the MSOP, and because some of the claims brought by Whipple in this case were also at issue in Karsjens, this case was stayed pending the ultimate resolution of Karsjens. (Fourth Am. Order at 29, June 30, 2017, Docket No. 46.)
The Karsjens litigation eventually proceeded to a bench trial and, because there were thirteen separate claims, the trial was broken down into two phases. Karsjens v. Piper, 336 F. Supp. 3d 974, 979 (D. Minn. 2018). In July 2015, the District Court found for the class plaintiffs on the "Phase One" claims, which considered only whether theMSOP was unconstitutional on its face and whether the MSOP was unconstitutional as applied. Id. Even though the Court's Phase One rulings were appealed by the defendants, the Court lifted the stay in this case in April 2016, reasoning that "it is unlikely that the claims in [this case] will be affected by the Eighth Circuit's ultimate ruling in the Karsjens claims on appeal." (Order Lifting Stay, Apr. 14, 2016, Docket No. 10.) With the stay lifted, Defendants in this case brought Motions to Dismiss Whipple's complaint. (Mot. to Dismiss, Sept. 7, 2016, Docket No. 17; Mot. to Dismiss, Oct. 13, 2016, Docket No. 26.)
On January 3, 2017, the Eighth Circuit Court of Appeals reversed the District Court's constitutional findings. Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017). In May 2017, the Court issued an order staying Karsjens in its entirety and recommended that any cases in the District of Minnesota which raised substantially similar claims also be stayed until he decided the remainder of the Karsjens claims. (Fourth Am. Order at 30.) This Court followed this recommendation and, in June 2017, stayed all pending cases sufficiently related to Karsjens, including Whipple's case. (Id. at 31.)
In August 2018, the District Court dismissed each of the remaining Karsjens claims. See Karsjens, 336 F. Supp. 3d at 998. Accordingly, the Court dismissed the Karsjens litigation in its entirety, id., and the stay in Whipple's case was lifted in October 2018. (Order Lifting Stay at 13, October 22, 2018, Docket No. 47.) Thereafter, the Magistrate Judge issued an R&R on the Defendants' motions to dismiss. (R&R.) The Magistrate Judge recommended that all Defendants except for Dennis Benson and Gary Grimm be dismissed without prejudice. (R&R at 2.) As to Benson and Grimm, the Magistrate Judge further recommended dismissal of all claims against them except Whipple's FourthAmendment strip search claim against them. (Id.) As a result, the recommendation currently before the Court is that only the claim "that Benson and Grimm violated Plaintiff's constitutional rights through the creation and implementation of an unlawful policy authorizing unreasonable unclothed visual searches of MSOP clients" be allowed to go forward. (Id.) Both parties objected to the R&R. (Defs.' Objs., Jan. 25, 2019, Docket No. 51; Pl.'s Objs., Feb. 1, 2019, Docket No. 53.) The Court will address the Parties' objections in turn.
Upon the filing of an R&R by a magistrate judge, "a party may serve and file specific written objections to the proposed findings and recommendations." Fed. R. Civ. P. 72(b)(2); accord D. Minn. LR 72.2(b)(1). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); accord D. Minn. LR 72.2(b)(3). To be proper, the objections must specifically identify the portions of the R&R to which the party objects and explain the basis for the objections. Turner v. Minnesota, No. 16-3962, 2017 WL 5513629, at *1 (D. Minn. Nov. 17, 2017). "Objections which are not specific but merely repeat arguments presented to and considered by a magistrate judge are not entitled to de novo review, but rather are reviewed for clear error." Montgomery v. Compass Airlines, LLC, 98 F. Supp. 3d 1012, 1017 (D. Minn. 2015).
Whipple makes several objections to the R&R. Because his objections merely restate arguments that were presented to and considered by the Magistrate Judge, they will be reviewed for clear error.
Whipple first argues that his procedural due process rights were violated when he was placed in the HSA without a hearing. (Plaintiff's Obj. at 1.) The Magistrate Judge recommended dismissal because, even assuming Whipple had a protected liberty interest in less-restrictive conditions outside the HSA, he was given all the procedural protections that he was due. The Magistrate Judge found that restraining and isolating Whipple following the altercation was reasonably necessary and that sufficient procedural protections existed, such as notice and the requirement that an MSOP official periodically review the HSA placement. These findings are not clearly erroneous.
Whipple argues that the Magistrate Judge erred by focusing on whether being placed in the HSA should be deemed punishment and by failing to consider whether he has a protected liberty interest at stake. (Id. at 3.) However, the R&R clearly states: "this Court assumes, without deciding, that Whipple had a liberty interest in the less-restrictive conditions imposed outside the HSA." (R&R at 13.) Just because the Magistrate Judge did not ultimately decide this issue does not mean it was not considered. Whipple's "alternative argument for the source of his liberty interest," (id.), is similarly unavailing. The Magistrate Judge determined that there was no violation of Whipple's due process rights even if he had a liberty interest. This conclusion is not clearly erroneous.
Whipple goes on to argue that "[b]ecause Magistrate Judge Bowbeer did not find that plaintiff alleged a protected liberty interest, the R&R does not address what process is due to Plaintiff." (Plaintiff's Obj. at 4.) This objection again misunderstands the R&R, which assumed that he had alleged a protected liberty interest. Furthermore, and contrary to Whipple's assertion, the R&R fully and clearly assessed the process that was due to him following the July 2009 fight, before his extended HSA placement, and...
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