Beaulieu et al v. Ludeman et al

Filing 47

REPORT AND RECOMMENDATION. 1. Defendants' Motion to Dismiss [Docket No. 31] be GRANTED in part and DENIED in part. Specifically, it is recommended that: a. Defendants' Motion to Dismiss be GRANTED as it relates to the following:(i) All Equ al Protection claims asserted in the Complaint; (ii) Plaintiffs Beaulieu's and Yazzie's claim that they were subjected to strip searches upon arrival at the Annex in retaliation for filing a lawsuit; (iii) Plaintiffs procedural due process claim as it relates to 20-inch televisions sent out from the Annex; and (iv) Plaintiffs' First Amendment telephone access claim relatedto the alleged excessive rate charged for telephone calls. These claims should be dismissed with prejudice. b . Defendants' Motion to Dismiss be GRANTED as it relates to plaintiffs' access-to-courts claim. This claim should be denied without prejudice. c. Defendants' Motion to Dismiss be DENIED, as to the remainder of the Complaint. 2. Plain tiffs Mike O'Donnell and Aaron Jones' Requests that this Court dismiss their action against defendants without prejudice [Docket Nos. 42, 44] be GRANTED. Objections to R&R due by 2/26/2008. Signed by Magistrate Judge Janie S. Mayeron on February 7, 2008. (dch)

Beaulieu et al v. Ludeman et al

Doc. 47

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

WALLACE JAMES BEAULIEU, et al., Plaintiffs, v. CAL R. LUDEMAN, et al., Defendants.

CIVIL NO. 07-1535 (JRT/JSM)

REPORT AND RECOMMENDATION

The above matter came before the undersigned United States Magistrate Judge upon defendants' Motion to Dismiss [Docket No. 31], plaintiff's Motion to Strike [Docket No. 35], Mike O'Donnell's Request for Removal from Action [Docket No. 42] and Aaron Jones' Request for Removal from Action [Docket No. 44]. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c). I. FACTUAL BACKGROUND Plaintiffs Wallace Beaulieu, Lionel Yazzie, Dale Williams Sr., Larry Delaney Sr., Mike O'Donnell, Emery Eugene Bush, Aaron Jones, John Louis Beaulieu III, and Michael J. Gimmestad 1 have been committed to the Minnesota Sex Offender Program ("Program"). The actions at issue in the present action pertain to the Program at the Moose Lake Facility Prison Annex ("Annex"). See Complaint for Violation of Civil Rights under 42 U.S.C. § 1983 ("Complaint"), ¶ III(A).
1

Plaintiff Dale Williams Sr.'s claims against defendants were dismissed by virtue of this Court's April 12, 2007 Order [Docket No. 13].
Beaulieu/Yazzie R&R

Dockets.Justia.com

Plaintiffs brought the present action under 42 U.S.C. § 1983 against Cal R. Ludeman, Commissioner of the Minnesota Department of Human Services; Joan Fabian, Commissioner for the Minnesota Department of Corrections; Terry Carlson, Warden for the Correctional Facility at Moose Lake; Jack Erskine, Program Director for the Correctional Facility at Moose Lake; Dean Mooney, Site Director for the Correctional Facility at Moose Lake; Paula Johnson, Security Director for the Correctional Facility at Moose Lake; Denise Considine, North Unit Director for the Moose Lake Prison Annex; and Eric Hattenberg, South Unit Director for the Moose Lake Prison Annex. Id., ¶ III(B). This action is being brought against defendants in both their individual and official capacities. Id. at p. 1. Plaintiffs first alleged that defendants Commissioner Ludeman, Site Director Mooney, and Program Director Erskine (along with nondefendants Nancy Johnston, Tim Brown and Gary Grimm) retaliated against Beaulieu and Yazzie for filing a separate Complaint under § 1983 in the District of Minnesota (Civil No. 06-4807 (JMR/JSM)). Id., ¶ (IV)(1). According to plaintiffs, the retaliation Beaulieu and Yazzie experienced

included the following acts: (1) transfer to the Annex where Beaulieu and Yazzie were required to comply not only with the rules of the Program, but also the rules and polices of the Minnesota Department of Corrections ("MDOC"); (2) subjecting Beaulieu and Yazzie to a reduction in their access to religious services, attorneys, the court and visitation by family; (3) unreasonable restraint of Yazzie leading to injury;

(4) unreasonable searches of Beaulieu's property, which lead to the seizure and copying of his legal papers and opening of legal mail outside of his presence; and (5) unclothed and invasive strip searches of Beaulieu and Yazzie upon their arrival at

Beaulieu/Yazzie R&R

2

the Annex. Id., ¶¶ (IV)(1)(A)-(E). According to plaintiffs, this conduct violates Beaulieu's and Yazzie's Fourteenth Amendment right to file grievances, rights under the First Amendment, and constitutes punishment. Id. ¶ (IV)(1)(A). Plaintiffs' second claim alleges that defendants Commissioner Ludeman, Corrections Commissioner Fabian and Warden Carlson are forcing Program detainees confined at the Annex to be subjected to full-body strip searches before and after any transport from the Annex and after contact visits. Id., ¶ (IV)(2). In addition, they are shackled and handcuffed during any transport from the Annex. Id. Plaintiffs maintain that a refusal to submit to these actions results in punishment, violate their Fourth Amendment right to be free from unreasonable searches and seizures, and violate the Equal Protection Clause of the Fourteenth Amendment, because no other civilly committed detainees, save for those at the Annex, are required to submit to strip searches before and after transport or after contact visits. Id. Plaintiffs' third claim involves their assertion that defendants North Unit Director Considine and South Unit Director Hattenberg, at the direction of Commissioner Ludeman, Corrections Commissioner Fabian, Warden Carlson, Program Director Erskine, Site Director Mooney, and Security Director Johnson, arbitrarily seized 20-inch televisions purchased by Program detainees at the Annex, and required them to send them out at their own expense in order comply with a MDOC Policy that only 13-inch clear televisions are allowed on MDOC property. Id., ¶ (IV)(3). According to plaintiffs, these actions violated their Fourth Amendment right to be free from unreasonable seizures and the Equal Protection Clause of the Fourteenth Amendment, because no other civilly committed detainees are forced to send out their 20-inch televisions. Id. In

Beaulieu/Yazzie R&R

3

addition, plaintiffs claim they have a right to procedural due process pursuant to the Fourteenth Amendment prior to having their property sent away. Id. Plaintiffs' fourth claim is that defendants North Unit Director Considine and South Unit Director Hattenberg, acting under the color of state law and at the direction of Commissioner Ludeman, Corrections Commissioner Fabian, Warden Carlson, Program Director Erskine, Site Director Mooney, and Security Director Johnson, violated their Fourth Amendment rights to be free from unreasonable searches and their rights under the Equal Protection Clause of the Fourteenth Amendment, by directing staff to open and inspect clearly marked incoming legal mail, outside of the presence of civilly committed detainees. Id., ¶ (IV)(4). Plaintiffs also alleged that these actions violated federal law with respect to U.S. Mail. Id. Plaintiffs' fifth claim pertains to their assertion that policies created by defendants North Unit Director Considine and South Unit Director Hattenberg, at the direction of Commissioner Ludeman, Program Director Erskine, Site Director Mooney, and Security Director Johnson, restricted or denied their access to religious services and their movement in the facility, and subjected them to body-pat searches before and after movement to the Annex gym, in violation of their Fourteenth Amendment rights under the Equal Protection Clause. Id., ¶ (IV)(5). In their sixth claim, plaintiffs alleged that policies created by defendants North Unit Director Considine and South Unit Director Hattenberg, at the direction of Commissioner Ludeman, Program Director Erskine, Site Director Mooney, and Security Director Johnson restricted plaintiffs' access to a legal computer, required them to pay a fee before they were given access to the computer, denied them access to private

Beaulieu/Yazzie R&R

4

counsel, limited or restricted time allowed by them to confer with counsel over the telephone, and forced them as pro se litigants to give legal documents to Moose Lake staff if they wanted copies of those documents. Id., ¶ (IV)(6). Plaintiffs maintain that these actions infringed on their right to gain meaningful access to the court in violation of the Fourteenth Amendment. Id. Plaintiffs' seventh claim involves allegations that Commissioner Ludeman created a policy that resulted in the installation of a phone system that only allowed for monitored, outgoing, telephone calls at a fee in excess of 34 cents per minute. Id., ¶ (IV)(7). Plaintiffs claim this policy and phone system violated their First Amendment right to telephone access. Id. Further, plaintiffs alleged that the phone system violated their Fourteenth Amendment rights under the Equal Protection Clause, as patients civilly committed under Minn. Stat. § 254B as mentally ill and dangerous, are allowed incoming and outgoing telephone calls and are allowed to purchase calling cards that provide telephone access for as little as 3 cents per minute. Id. In their eighth claim, plaintiffs alleged that North Unit Director Considine and South Unit Director Hattenberg, at the direction of Commissioner Ludeman, Program Director Erskine, Site Director Mooney, and Security Director Johnson, violated their Fourteenth Amendment right to privacy, as plaintiffs are forced to use communal showers and toilets with no expectation of privacy, and they are double bunked in cells too small for two patients. Id., ¶ (IV)(8). Plaintiffs alleged in their ninth claim that North Unit Director Considine and South Unit Director Hattenberg, acting under the supervisory authority of Commissioner Ludeman, Program Director Erskine, Site Director Mooney, and Security Director

Beaulieu/Yazzie R&R

5

Johnson, deprived plaintiffs of their access to freely move around the Annex without escorts, as Program detainees are not allowed to interact or have any contact with MDOC prison inmates or guards. Id., ¶ (IV)(9). As a result, plaintiffs are denied

access to the privileges afforded to all other civilly committed inmates including daily access to the gym, access to library services, the ability to communicate with other Program detainees, and free access to outside activities. Id. According to plaintiffs, their status is similar to what the MDOC would classify as "Administrative Segregation." Id. Plaintiffs contend that they have a right to procedural due process before they are denied access to services afforded to all other civilly committed detainees, and that as they have a state-created liberty interest in their access le vels, a denial of this right violates the Due Process Clause of the Fourteenth Amendment. Id. Plaintiffs' tenth claim asserts that defendants have failed to provide plaintiffs with adequate conditions of confinement and have exposed them to potentially severe health risks. Id., ¶ (IV)(10). In particular, plaintiffs complain that the communal showers and bathrooms are only cleaned once a day and that urine and fecal matter are frequently found on the bathroom floor or toilet seats; no sanitizer readily available to disinfect the floors and toilet seats; dining room tables are not adequately sanitized prior to the services of each meal; the mops and brooms used to clean the bathrooms and showers are also used to clean cells, thereby spreading germs to their cells; and the towels, blankets and cleaning rags are washed in one unit washer and the water does not reach a temperature needed to properly sanitize them. Id. According to plaintiffs, these

concerns have been repeatedly brought to the attention of Program staff, but they are ignored. Id. Plaintiffs claim the actions of the Program's staff constitutes deliberate

Beaulieu/Yazzie R&R

6

indifference, and that civilly committed patients have a right under the Fourteenth Amendment not to be exposed to unsanitary conditions. Id. Plaintiffs' eleventh claim states that the conditions at the Annex violate the Equal Protection Clause of the Fourteenth Amendment and constitutes punishment, as plaintiffs are subjected to a policy implemented by Commissioner Ludeman, in compliance with directives by Corrections Commissioner Fabian and Warden Carlson which mirror that of MDOC, where potential visitors are required to go through a criminal background check and obtain approval prior to visiting Program detainees housed at the Annex. Id., ¶ (IV)(11). This process takes 30 days or more from the receipt of the application, and potential visitors are not allowed to visit if they do not pass the background check. Id. Plaintiffs maintain that this condition of confinement at the

Annex is more restrictive and punitive than the requirements to which all other Program detainees are subjected and violates the Equal Protection Clause under the Fourteenth Amendment and constitutes punishment. Id. As a result of defendants' conduct, plaintiffs seek declaratory and injunctive relief in the form of an order requiring the Program to close the Annex and transfer all of its detainees back to the facilities from which they came, or ordering their release into less restrictive community-based sex offe nder programs. Id., ¶ V. In addition, plaintiffs seek damages from defendants, in their personal capacities, in the amount of 4.7 million dollars. Id. In lieu of an answer, defendants brought a motion to dismiss plaintiffs' claims under Federal Rules of Civil Procedure 12(b)(1) and (b)(6).

Beaulieu/Yazzie R&R

7

II.

STANDARD OF REVIEW Defendants have brought a claim for dismissal under Rule 12 of the Federal

Rules of Civil Procedure for a lack of subject matter jurisdiction pursuant to Rule 12(b)(1), and for failure to state claim under Rule 12(b)(6). A. Rule 12(b)(1) Motion

Defendants have made a facial challenge to the Court's authority to consider claims for damages against defendants for actions taken in their official capacities. "[I]f a plaintiff lacks standing, [a] district court has no subject matter jurisdiction. Therefore, a standing argument implicates Rule 12(b)(1)." See Faibisch v. Univ. of Minnesota, 304 F.3d 797, 801 (8th Cir. 2002). A motion to dismiss for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), may challenge the plaintiff's complaint either on its face or on the factual truthfulness of its averments. See Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); see also Osborn v. United States., 918 F.2d 724, 729 n. 6 (8th Cir. 1990). In a facial challenge to jurisdiction, such as the one before this Court, review is restricted to the pleadings and affords the non-moving party the same protections that it would receive under a Rule 12(b)(6) motion to dismiss. See Osborn, 918 F.2d at 729 n. 6. The court presumes that all of the factual allegations in the complaint concerning jurisdiction are true and will not dismiss the claims unless the plaintiff fails to allege an essential element for subject matter jurisdiction. See Titus, 4 F.3d at 593 (citing Eaton v.

Dorchester Dev., Inc., 692 F.2d 727, 731-32 (11th Cir. 1982)); Osborn, 918 F.2d at 729 n. 6.

Beaulieu/Yazzie R&R

8

B.

Rule 12(b)(6) Motion

Pursuant to Rule 12(b)(6), defendants have moved to dismiss plaintiffs' claims for injunctive and declaratory relief against them in their official capacities, and all claims against them in their individual capacities on grounds that none of the claims state a cause of action upon which relief can be granted. Alternatively, defendants submit that even if the Court were to find that plaintiffs have stated claims, the suit should be dismissed because defendants are entitled to qualified immunity for their actions as a matter of law. The standard of review to be applied on a Rule 12(b)(6) motion is as follows: When ruling on a motion to dismiss, the district court must accept the allegations contained in the complaint as true and all reasonable inferences from the complaint must be drawn in favor of the nonmoving party. A complaint shall not be dismissed for its failure to state a claim upon which relief can be granted unless it appears beyond a reasonable doubt that plaintiff can prove no set of facts in support of a claim entitling him to relief. Nevertheless, dismissal under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in their legal premises and deigned to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity. To avoid dismissal, a complaint must allege facts sufficient to state a claim as a matter of law and not merely legal conclusions. Young v. City of St. Charles, Missouri, 244 F.3d 623, 627 (8th Cir. 2001)(internal citations omitted); see also DuBois v. Ford Motor Credit Co., 276 F.3d 1019, 1022 (8th Cir. 2002) (finding that to avoid dismissal under Rule 12(b)(6), the "complaint must contain sufficient facts, as opposed to mere conclusions, to satisfy the legal requirements of the claims."). Consequently, to survive a motion to dismiss under Rule 12(b)(6), a complaint must contain "enough facts to state a claim to relief that is

Beaulieu/Yazzie R&R

9

plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. ---, ----, 127 S.Ct. 1955, 1974 (2007). Pro se complaints are held to less stringent standards than formal

pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) The Court may not consider materials "outside the pleadings" on a motion to dismiss. However, this does not mean that only the complaint itself may be reviewed. As the court noted in Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.1999): When considering a motion for judgment on the pleadings (or a motion to dismiss under Fed. R. Civ. P. 12(b)(6)), the court generally must ignore materials outside the pleadings, but it may consider `some materials that are part of the public record or do not contradict the complaint,' Missouri ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1107 (8th Cir.), cert. denied, __U.S.__, No.98-1848, 1999 WL 319349 (U.S. June 24, 1999), as well as materials that are `necessarily embraced by the pleadings.' Piper Jaffray Cos. v. National Union Fire Ins. Co., 967 F. Supp. 1146, 1152 (D. Minn. 1997). See also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d §1357, at 199 (1990)(court may consider `matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint'). Therefore, documents attached to the complaint may be reviewed on a motion to dismiss, since they are part of the pleading.2

2

Rule 10(c) of the Federal Rules of Civil Procedure provides: "(c) Adoption by Reference; Exhibits. . . . A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."

Beaulieu/Yazzie R&R

10

III.

DISCUSSION A. Claims of Mike O'Donnell and Aaron Jones

Plaintiffs Mike O'Donnell and Aaron Jones have requested that this Court dismiss their action against defendants without prejudice. See Docket Nos. 42 and 44.

Defendants have not opposed these motions. As such, based on Rule 41(a)(2) of the Federal Rules of Civil Procedure, this Court recommends that plaintiffs O'Donnell's and Jones' request for withdrawal from this case without prejudice be granted and their claims be dismissed without prejudice. 3 B. Claims for Damages Against Defendants in Their Official Capacities

Defendants' first argument is that pursuant to the Eleventh Amendment, the Court lacks subject matter jurisdiction for any claims for damages against them for actions taken in their official capacities. See Defendants' Memorandum in Support of their Motion to Dismiss ("Defs.' Mem.") at pp. 9-12. In response, plaintiffs stated that they were not seeking damages against the defendants in their official capacities, but only in their individual capacities which the Eleventh Amendment does not bar. See Plaintiffs Response to Defendants Motion to Dismiss ("Pls.' Response") at p. 1. The Eleventh Amendment states that the "judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state." Under the Eleventh Amendment, federal courts do not have subject matter jurisdiction over a claim against a state for damages that has not consented to the suit. Seminole Tribe of Florida v.
3

O'Donnell also requested dismissal of Michael J. Gimmestad's case on his behalf. See Docket No. 17. However, this Court will not considered this request for withdrawal on Gimmestad's behalf on the grounds that he never signed the pleading.

Beaulieu/Yazzie R&R

11

Florida, 517 U.S. 44, 64-65 (1996); Roberts v. Dillon, 15 F.3d 113, 115 (8th Cir. 1994). This immunity extends to state officials as well since "a suit against a state official in his or her official capacity is a suit against the official but rather is a suit against the official's office [and] is no different from a suit against the State itself." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). When a lawsuit is barred by the Eleventh

Amendment, the case must be dismissed for lack of subject matter jurisdiction. Seminole Tribe, 517 U.S. at 64-65. Plaintiffs only alleged damages against defendants in their "personal capacities", and stated in their response that they were not seeking damages from defendants in their official capacities. Complaint, ¶ V; Pls.' Response at p. 1. Therefore, this portion of defendants' motion to dismiss should be denied, as plaintiffs have not asserted damage claim against defendants in their official capacities. 4 C. Retaliation Claim

Plaintiffs Beaulieu and Yazzie alleged that defendants Commissioner Ludeman, Site Director Mooney, and Program Director Erskine, along with others retaliated against them for filing a separate suit under § 1983 in the District of Minnesota (Civil No. 06-4807 (JMR/JSM)), and such conduct violated their rights under the First and Fourteenth Amendments. See Complaint, ¶ (IV)(1). According to plaintiffs, the

4

The Court notes that the Eleventh Amendment does not bar claims for declaratory or injunctive relief against individuals in their official capacities (see Sherbrooke Turf, Inc. v. Minnesota Dept. of Transp., 345 F.3d 964, 967 n. 1 (8th Cir. 2003) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66-67 (1989)), a request for declaratory judgment with regards to a claimant's constitutional rights (see Dakota, Minnesota & Eastern Railroad Corp., 362 F.3d 512, 517 (8th Cir. 2004) (citation omitted); Klinger v. Director, Dept. of Revenue , 281 F.3d 776, 777 (8th Cir. 2002) (per curium)), or claims for damages against persons in their individual capacities. See Nix v. Norman, 879 F.2d 429, 433 n. 3 (8th Cir. 1989).
Beaulieu/Yazzie R&R

12

retaliation Beaulieu and Yazzie experienced included the following acts: (1) transfer to the Annex where Beaulieu and Yazzie were required to comply not only with the rules of the Program but also the rules and polices of the MDOC; (2) subjecting Beaulieu and Yazzie to a reduction in their access to religious services, attorneys, the court and visitations by family; (3) unreasonable restraint against Yazzie leading to injury; (4) unreasonable searches of Beaulieu's property, which lead to the seizure and copying of his legal papers and opening of legal mail outside of his presence; and (5) invasive and unclothed strip searches upon their arrival at the Annex. Id., ¶¶ (IV)(1)(A)-(E). To establish a First Amendment retaliation claim under 42 U.S.C. § 1983, a plaintiff must show: (1) he engaged in a protected activity, (2) the government official took adverse action against him that would chill a person of ordinary firmness from continuing in the activity, and (3) the adverse action was motivated at least in part by the exercise of the protected activity. Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004) (citation omitted). An act in

retaliation for the exercise of a constitutionally protected right is actionable under Section 1983 even if the act, when taken for a different reason, would have been proper." Madewell v. Roberts, 909 F.2d 1203, 1206 (8th Cir. 1990) (citations omitted). For example, prison officials may not impede access to courts through retaliation, such as harassment or less favorable treatment, for inmates' litigation activities. Sanders v. St. Louis County, 724 F.2d 665, 666 (8th Cir. 1983) (citations omitted). "[T]he alleged manifestations of defendants' retaliation (such as less favorable treatment) need not

Beaulieu/Yazzie R&R

13

themselves amount to constitutional violations. The violation lies in the intent to impede access to the courts." Madewell, 909 F.2d at 1206-07 (citation omitted). Defendants' argument for dismissal is threefold. First, they claim that the alleged retaliation only pertained to plaintiffs Beaulieu and Yazzie's filling of the lawsuit Beaulieu v. Ludeman, Civ. No. 06-4807 (JMR/JSM), and therefore, the other plaintiffs cannot claim a causal connection between the filing of an action and the retaliation. See Defs.' Mem. at p. 22. This argument has no merit. The Complaint does not assert a

retaliation claim on behalf of all plaintiffs; it only seeks relief for the retaliation allegedly suffered by Beaulieu and Yazzie. Defendants' second argument is that there is no casua l action between the filing of the first lawsuit on December 7, 2006,5 and the alleged acts of retaliation, as defendants had intended to transfer Beaulieu as early as November of 2006. Id.6 In support of this argument, defendants refer to an attachment to the Beaulieu v. Ludeman Civ. No. 06-4807 (JMR/JSM) Complaint -- a November 12, 2006 letter from Beaulieu to Nancy Johnston, St. Peter Site Director -- referencing the Program's decision to transfer Beaulieu "within the next week" from St. Peter to the Moose Lake Annex. See Affidavit of Kerri Stahlecker Hermann, Exhibit 12. In opposition, plaintiffs generally argued that they were directed by the Civil Cover Sheet for an action under § 1983 "to cite caselaw or make arguments, but to

5

Defendants stated in their brief that the first suit was filed on December 7, 2007. Defs'. Mem. at p. 22. However, the suit was filed on December 7, 2006. See Beaulieu v. Ludeman Civ. No. 06-4807 (JMR/JSM), Docket No. 1; Affidavit of Kerri Stahlecker Hermann, Exhibit 11.
6

No such argument was made regarding Yazzie and the Court will not speculate on defendants' behalf as to when it made the decision to transfer him to the Annex.
Beaulieu/Yazzie R&R

14

Briefly describe our claim. We do have information and the "Facts" that support our claim, and we will provide all of these to the Court if requested, otherwise, we will set out our case during Disclosure, as the rules direct." Pls.' Response at p. 1 (emphasis in original). Specifically, plaintiffs asserted in their response that the Program had

Beaulieu sign a "Consent to Treatment" on November 1, 2006, which was well before the Program had planned to transfer him to the Annex, and that the plan was that he was to go back into treatment at the St. Peter site. Id. at p. 2. The plan was then changed in late December of 2006 after the Program was served with the Complaint in the first suit. Id. Beaulieu was subsequently transferred to the Annex on January 2, 2007. Id. As stated previously, this Court must "accept the allegations contained in the Complaint as true and all reasonable inferences from the complaint must be drawn in favor of the nonmoving party." Young, 244 F.3d at 627. Further, "[u]nder the notice pleading standard of the Federal Rules, plaintiffs are only required to give a `short and plain statement' of their claims. Fed.R.Civ.P. 8(a)(2). Thus, when reviewing the sufficiency of a complaint before receiving any evidence, our task is a limited one. `The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.' Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)." Hydrick v. Hunter, 500 F.3d 978, 993 (9th Cir. 2007); see also Bell Atlantic Corp. v. Twombly, 550 U.S. ---, ----, 127 S.Ct. 1955, 1974 (2007) (concluding that to survive a motion to dismiss under Rule 12(b)(6), a complaint must contain "enough facts to state a claim to relief that is plausible on its face.").

Beaulieu/Yazzie R&R

15

Defendants' motion to dismiss Beaulieu's claim that he was transferred in retaliation for filing the first suit must be rejected. While defendants have pointed to a November 12, 2006 letter from Beaulieu to the St. Peter Site Director that predates the filing of the first suit and references his scheduled transfer "within the next week", the fact is, given the posture of this motion, plaintiffs cannot offer facts outside the Complaint to dispute defendants' version of the "facts." Thus, accepting the allegations of the Complaint as true, the Court cannot and will not assume that plaintiffs cannot develop and prove any facts (such as those described in their response) to support their claim that defendants retaliated against Beaulieu for his filing of the first suit by transferring him to the Annex. 7 Accordingly, defendants' motion to dismiss that portion of plaintiffs' retaliation claim relating to Beaulieu's transfer to the Annex should be denied. Defendants' third argument is that Beaulieu's and Yazzie's claim that they were subjected to strip searches upon arrival at the Annex in retaliation for filing the first lawsuit on December 7, 2006, cannot state a viable claim because plaintiffs have stated in their Complaint that all civilly committed detainees are subjected to unclothed visual body searches anytime they are transported to or from the Annex. See Defs.' Mem. at pp. 22-23 citing to Complaint, ¶ 2. Defendants are correct. Plaintiffs have alleged in the present action that all Program detainees confined at the Annex are subjected to fullbody strip searches before and after any transfer from the Annex.
7

See Complaint,

Even if Beaulieu was aware of a decision to transfer him to the Annex as of November 12, 2006, and believed that the transfer was to occur the next week, the purpose of his letter was to ask the St. Peter Site Director to change her mind. If indeed the transfer did not occur until sometime after the commencement of the first suit, as plaintiffs state, then the Court cannot assume as a matter of law that the transfer was a "done deal" as of November 12, 2006, and the suit played no role in the transfer.
Beaulieu/Yazzie R&R

16

¶ (IV)(2).

As such, Beaulieu and Yazzie cannot maintain a claim that defendants

retaliated against them for filing the first lawsuit when they have affirmatively stated that the alleged retaliatory act is a standard practice applied to all Program detainees at the Annex. As such, this portion of plaintiffs' retaliation claim should be dismissed with prejudice. In summary, defendants' motion to dismiss Beaulieu and Yazzie's claim that they were subjected to an unclothed search upon arrival at the Annex in retaliation for the filing of their first suit, Complaint, ¶ (IV)(1)(E), should be dismissed with prejudice. The remainder of plaintiffs' retaliation claim, Complaint, ¶¶ (IV)(1)(A)-(D), should survive.8 D. Strip Search Claim alleged that defendants Commissioner Ludeman, Corrections

Plaintiffs

Commissioner Fabian and Warden Carlson are forcing civilly committed patients confined at the Annex to be subjected to full-body strip searches before and after any transport from the Annex and after contact visits. See Complaint, ¶ (IV)(2). Plaintiffs assert that these actions violated their Fourth Amendment right to be free from unreasonable searches and seizures and the Equal Protection Clause of the Fourteenth Amendment, because no other civilly committed detainees, save for those at the Annex, are required to submit to strip searches before and after transport or after contact visits. Id.

8

Defendants presented no arguments with respect to the other alleged acts of retaliation stated in the Complaint, ¶¶ (IV)(1) (A)-(D). Further, even if defendants ultimately established that Beaulieu's transfer was decided or implemented before his filing of the first suit, that action will have no bearing on Beaulieu's and Yazzie's other claims of retaliation which are alleged to have occurred after their arrival at the Annex.

Beaulieu/Yazzie R&R

17

1.

Fourth Amendment Claim

Under the Fourth Amendment, "[t]he right of the people to be secure in their persons against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV; see also Bell v. Wolfish, 441 U.S. 520, 558 (1979) ("'The Fourth Amendment prohibits only unreasonable searches', . . .") (quoting Carroll v. United States, 267 U.S. 132, 147 (1925)). The Eighth Circuit and several courts within the District of Minnesota have examined the standard under which the constitutional protections of civilly committed individuals should be analyzed, including the constitutional protections of civilly committed sexual offenders, and have concluded that they should be afforded the same rights as pretrial detainees. See Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001) (finding that a civilly committed person's excessive force claim should be evaluated under the standard usually applied to excessive force claims brought by pretrial detainees); Stone v. Harry, Civ. No. 02-0028 (MJD/RLE) at pp. 24-27 (Report and Recommendation adopted by District Judge Michael Davis), aff'd 364 F.3d 912 (8th Cir. 2004) (finding that a civilly committed patient is not entitled to any more protections under Constitution, including the Fourth Amendment, than those afforded to pretrial detainees); Nicolaison v. Goodno , Civil No. 04-617 (RHK/JSM) (D. Minn. June 29, 2005) (Report and Recommendation adopted by District Judge Richard Kyle in Order dated August 1, 2005) (finding that a civilly committed sex offender, for the purpose of determining his constitutional rights, including those under the Fourth Amendment, is entitled to the same rights as that afforded to a pretrial detainee); Serna v. Goodno, No. 04-0615 (JMR/SRN), 2005 WL 1324090 at *4 n. 3 (D. Minn. June 3, 2005)

Beaulieu/Yazzie R&R

18

(evaluated civilly committed sex offender's Fourth Amendment search and seizure claims under the standard applicable to pretrial detainees.) (Report and

Recommendation adopted by District Judge James Rosenbaum in Order dated July 7, 2005); Clouthier v. State of Minnesota, Civ. No. 04-144 (PAM/RLE) (D. Minn. January 10, 2005) at p. 20 (citation omitted) (Report and Recommendation adopted by District Judge Paul Magnuson in Order dated February 4, 2005) (finding that position of civilly committed sex offender who has made a Fourth Amendment claim relating visual body searches, is most analogous to that of a pretrial detainee); Meyer v. O'Keefe, No. 03-5251, 2004 WL 2212091 at *3 n. 3 (D. Minn. Sept. 30, 2004) (Tunheim, J) (finding that same due process standard used for pretrial detainees should be applied to a committed sex offender); DeVellion v. Milczark, Civil No. 01-617 (DWF/SRN) (D. Minn. Nov. 7, 2001) at p. 9 (finding that a civilly committed individual has the same protection, if not less, than a pretrial detainee for the purposes of due process) (Report and Recommendation adopted by District Judge Donovan Frank). Based on this precedent, the Court will examine the balance of plaintiffs' constitutional claims, including their Fourth Amendment unreasonable search claim, under the standards applied to pretrial detainees. Under these standards, while such persons are entitled to more considerate treatment and conditions than criminals, their rights must still be bala nced against the interests of the state. See Youngberg v.

Romeo, 457 U.S. 307, 321-22 (1982). "[C]onfinement in a state institution [raises] concerns similar to those raised by the housing of pretrial detainees, such as the legitimate institutional interest in the safety and security of guards and other individuals in the facility, order within the facility, and the efficiency of the facility's operations."

Beaulieu/Yazzie R&R

19

Andrews , 253 F.3d at 1061. Thus, as civilly committed persons, plaintiffs' constitutional rights are not absolute and can be subject to reasonable limitation or retraction based on security concerns. See Nicolaison v. Milczark, 26 Fed. Appx. 596, 2002 WL 15669 at *1 (8th Cir. 2002). The United States Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979) examined the propriety of visual body cavity searches of pretrial detainees and prisoners. In Bell, all detainees were required to expose their body cavities for a visual inspection as part of a strip search conducted after every contact visit with a person from outside of the facility. Id. at 558.9 The detainees were not to be touched at any time during the visual search procedure. Id. The district court upheld the strip search procedure, but prohibited the body cavity searches absent probable cause to believe that the individual inmate was concealing contraband. Id. at 558. The Court of Appeals affirmed the decision of the district court. The Supreme Court in Bell, in balancing the "significant and legitimate security interests" of a detention facility with the "privacy interests of the inmates", reversed the Court of Appeals and concluded that visual body cavity searches can be conducted on less than probable cause. Id. at 560. The Supreme Court found that in determining whether a search is reasonable for Fourth Amendment purposes, the need of the search is balanced against the invasion of personal rights that the search entails, and this balancing requires a Court to examine the scope of the search, the manner it was conducted, the justification for the search, and the place it was conducted:

9

The search policy at issue in Bell required a male inmate to lift his genitals and bend over to spread his buttocks for visual inspection and for female inmates, the vaginal and anal cavities were visually inspected. Id. at 558, n. 39.
Beaulieu/Yazzie R&R

20

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id. at 559. Applying these standards, defendants argued that plaintiffs' Fourth Amendment claim relating to strip searches fails because the Program's policy requiring strip searches before and after transport to and from the facility and after contact visits is reasonable. Specifically, defendants contended that the Program has valid security

interests in preventing contraband from entering or leaving the facility when patients are transported to court or other appointments or during contact visits, the plaintiffs are individuals with long and violent criminal histories who are sophisticated enough to plan the smuggling of contraband or weapons in and out of the facility when they are being transported or when they have contact visits, and plaintiffs did not allege that the searches were conducted in an offending manner. See Defs.' Mem. at pp. 31-32. While defendants may ultimately prove that strip searches of Program detainees before and after transport to and from the facility and after contact visits is reasonable, their motion to dismiss plaintiffs' strip search claim must be denied for two reasons. First, for the purpose of a motion to dismiss, this Court cannot look beyond plaintiffs' Complaint, and as written, it states a viable claim. Second, no facts have been

developed to date, much less submitted to the Court, by any party that speak to the scope of the search, the manner it was conducted, the justification for the search, and the place it was conducted. See generally, Shain v. Ellison, 273 F.3d 56, 62-66 (2d Cir.

Beaulieu/Yazzie R&R

21

2001) (holding that a blanket strip search policy at county jail violated Fourth Amendment). Stated otherwise, this Court does not have before it any facts to assist it in evaluating the factors necessary to determine if the alleged blanket strip search policy in this case is appropriate. As such, defendants' motion to dismiss plaintiffs' Fourth Amendment claims should be denied.10 2. Equal Protection Claim

Plaintiffs also asserted that the strip search policy for Program detainees violates the Equal Protection Clause of the Fourteenth Amendment. See Complaint, ¶ (IV)(2). The Fourteenth Amendment provides in relevant part that no state shall "deny any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. In order to succeed on an equal protection claim, a claimant must prove that he has been treated differently from other similarly situated individuals, either by operation of a state law or regulation, or by a decision by a state official. See Bogren v. Minnesota, 236 F.3d 399, 408 (8th Cir. 2000) ("In general, the Equal Protection Clause requires that state actors treat similarly situated people alike"), cert denied, 534 U.S. 816 (2001) (citing Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir. 1994), cert. denied, 513 U.S. 1185 (1995)). The first step in an equal protection case is determining whether plaintiffs have demonstrated that they are treated differently than others who were similarly situated to them.
10

See Klinger, 31 F.3d at 731 (citation omitted).

"Dissimilar treatment of

Defendants cited in their memorandum several cases where courts found strip searches to be valid. See Defs.' Mem. at pp. 29-32 citing to Bell, Johannes v. Alameda Co. Sheriff's Dept., 2006 WL 2504400 (N.D.Cal. August 29, 2006), and Serno. However, consistent with this Court's conclusion, each of these cases was decided based on an evidentiary record developed for the court through a trial or on a motion for summary judgment.
Beaulieu/Yazzie R&R

22

dissimilarly situated persons does not violate equal protection." Id. (citation omitted). Absent a threshold showing that plaintiffs are similarly situated to those who allegedly receive favorable treatment, plaintiffs do not have a viable equal protection claim. Id. (citation omitted). "The similarly situated inquiry focuses on whether the [claimant is] similarly situated to another group for purposes of the challenged government action." Id. (citation omitted). Assuming that plaintiffs can meet this threshold showing, then the court examines the regulation to determine if it "is rationally related to a legitimate state interest." See City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432 440 (1985); Gavin v Branstad, 122 F.3d 1081, 1090 (8th Cir. 1997) ("Because neither a . fundamental right nor a suspect classification is at issue here, we apply rational basis review"), cert. denied, 524 U.S. 955 (1998). In the present case, plaintiffs asserted that Program detainees housed in the Annex are treated differently than other civilly committed detainees housed in every other civil detention facility located throughout Minnesota in that no other civilly committed detainees are required to submit to strip searches before and after transports or contact visits. Defendants argued that plaintiffs' Equal Protection claim fails as a matter of law, as civilly committed detainees located at the Annex are not similarly situated to civilly committed detainees located at other facilities. See Defs.' Mem. at p. 34. This Court agrees. Detainees at one facility or unit are not considered to be "similarly-situated" to detainees at other facilities or units for Equal Protection purposes. See Jackson v. Wengler, Civ. No. 07-3587 (JRT/FLN), 2007 WL 3275102 at *6 (D. Minn. Nov. 02, 2007)

Beaulieu/Yazzie R&R

23

(citing Klinger, 31 F.3d at 732 (inmates housed at different prisons were not similarlysituated for Equal Protection purposes, because the prisons were "different institutions with different inmates each operating with limited resources to fulfill different specific needs."); Vasquez v. Frank, 2005 WL 2740894 at *12 (W.D. Wis. October 21, 2005) (prisoner Equal Protection claim failed because "inmates at other institutions and in other units are not similarly situated to petitioner"), aff'd in part, vac'd in part, 209 Fed.Appx. 538 (7th Cir. 2006); Polakoff v. Henderson, 370 F. Supp. 690, 694-95 (D.C. Ga. 1973) ("The court knows of no statute or case stating that uniform policies are required at each and every penitentiary within the federal prison system."), aff'd, 488 F.2d 977 (5th Cir. 1974)); see also Serna, 2005 WL 1324090 at *6 (D. Minn. June 03, 2005) ("Moreover, the fact that different patients reside at different facilities precludes a finding that the patients are similarly situated."). Given that plaintiffs, who are housed in the Annex, are not similarly situated to other civilly committed individuals housed in different facilities throughout Minnesota, their Equal Protection claim with respect to strip searches fails and should be dismissed with prejudice.11

11

While plaintiffs alleged that they are treated differently than other civilly committed persons, the Court notes that there are many categories of such persons in Minnesota. For example, Minn. Stat § 253B.18, authorizes commitment for persons who are mentally ill and dangerous to the public; Minn. Stat §§ 253B.04 and 253B.09 authorize commitment for chemically dependent persons; and Minn. Stat § 253B.07 and 253B.09 authorize commitment for persons who are mentally ill or developmentally disabled. The Court can envision that the institutional concerns identified in Andrews, may vary depending upon the nature of the population that is housed at the institution. For this reason, the Court cannot conclude that all civilly committed persons are sufficiently similar for an equal protection analysis.

Beaulieu/Yazzie R&R

24

E.

Handcuffs and Shackles

Plaintiffs alleged that defendants require civilly committed individuals residing at the Annex to be shackled and handcuffed anytime they are transported from the Annex. See Complaint, ¶ IV(2). According to plaintiffs, this seizure violates their Fourth

Amendment rights. 12 Id. Defendants argued that given that plaintiffs pose a danger to the public and some have tried past escape attempts, the Program's alleged policy of requiring handcuffs and shackles during transport does not violate the Fourth Amendment. See Defs.' Mem. at p. 32. In addition, defendants argued that plaintiffs do not allege facts to sufficiently establish an excessive force claim under the Fourth Amendment. Id. The Fourth Amendment states that "[t]he right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated." U.S. Const. amend. IV. This right extends to civilly committed individuals. See Hydrick, 500 F.3d at 993 (citations omitted) (finding that a committed sexually violent person shackled during transport and during visits with family and friends could assert a claim under the Fourth Amendment). The test as to whether a governmental action is appropriate under the Fourth Amendment in this context is whether the "offending" action is reasonable given the rights of the plaintiffs and the interests of the Program. See Bell, 441 U.S. at 559;

12

The Court does not read the Complaint to assert an Equal Protection claim with respect to defendants' use of shackles and handcuffs. However, even if plaintiffs had asserted that the use of shackles and handcuffs violated their Equal Protection rights because other civilly committed detainees housed at other facilities around the State are not subjected to this practice when they are being transported to and from the facility, this Court would recommend dismissal of the claim for the same reason that it recommended dismissal of plaintiffs' equal protection strip search claim. Civilly committed detainees in other facilities are not similarly situated to those housed at the Annex.
Beaulieu/Yazzie R&R

25

see also Youngberg, 457 U.S. at 324

(holding that a committed individual "enjoys

constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.") (emphasis added); Hydrick, 500 F.3d at 993 ("The watchword of the Fourth Amendment in every context is `reasonableness.'"); United States v. Slater, 411 F.3d 1003, 1006 (8th Cir. 2005) ("The touchstone of the Fourth Amendment is reasonableness."). Assuming as true plaintiffs' allegations that defendants are implementing a blanket policy mandating handcuffing and shackling during transport of Annex residents, dismissal at this stage is premature. This Court cannot go outside of the Complaint to determine the extent of the restraints and if defendants have a valid rationale for this policy, factors which are necessary in ascertaining the policy's reasonableness. See Hydrick, 500 F.3d at 993 (finding that a committed sexually violent person shackled during transport and during visits with family and friends asserted a claim sufficient to survive a motion to dismiss, given the analysis under the Fourth Amendment focuses on the reasonableness of the governmental action). In fact, this Court does not even have evidence of the alleged policy before it. As such, plaintiffs have adequately stated a Fourth Amendment claim related to defendants' use of shackles and handcuffs, and defendants motion to dismiss this claim should be denied.13

13

While defendants' argued that plaintiffs have not adequately pled a claim for excessive force under the Fourth Amendment, this Court does not read such a claim in the Complaint. Regardless, although plaintiffs have a clearly established right to be free from excessive force under the Fourth Amendment's prohibition against unreasonable seizures of the person, the Court observes that there must be something beyond minor injuries to make out an excessive force claim. See Mann v. Yarnell, 497 F.3d 822 (8th Cir. 2007); Hanig v. Lee, 415 F.3d 822 (8th Cir. 2005). Here, the Court notes that
Beaulieu/Yazzie R&R

26

F.

Seizure of 20-Inch Televisions

Plaintiffs alleged that defendants North Unit Director Considine and South Unit Director Hattenberg, at the direction of Commissioner Ludeman, Corrections Commissioner Fabian, Warden Carlson, Program Director Erskine, Site Director Mooney, and Security Director Johnson, arbitrarily seized 20-inch televisions purchased by plaintiffs, and required plaintiffs to send them out at their own expense in order comply with a MDOC policy that only 13-inch clear televisions are allowed on MDOC property. Id., ¶ (IV)(3). According to plaintiffs, these actions violated their Fourth

Amendment right to be free from unreasonable seizures and the Equal Protection Clause of the Fourteenth Amendment, because no other civilly committed detainees are forced to send out their 20-inch televisions. Id. In addition, plaintiffs claim they have a right to procedural due process prior to having their property removed. Id. 1. Fourth Amendment Claim

With regards to plaintiffs' Fourth Amendment claim, defendants only argued that no "seizure" occurred for Fourth Amendment purposes, as the Program only required plaintiffs to send the televisions out of the facility. See Defs.' Mem. at p. 32. This Court disagrees. The Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated." U.S. Const. amend. IV. Personal property, such as televisions, are personal "effects" protected by the Fourth Amendment. See Pepper v. Village of Oak Park, 430 F.3d 805, 809 (7th Cir. 2005) (citations omitted); see also

plaintiffs have made no allegations of physical injury as it pertained to their shackles and handcuffs claim.
Beaulieu/Yazzie R&R

27

Oliver v. United States, 466 U.S. 170, 177 n. 7 (1984) ("The Framers would have understood the term `effects' to be limited to personal, rather than real, property."). Given that a tele vision is an "effect" protected by the Fourth Amendment, this Court must determine whether taking plaintiffs' 20-inch televisions and requiring them to send them out at their own expense constitutes a seizure. "A `seizure' of property . . . occurs when `there is some meaningful interference with an individual's possessory interests in that property.'" Soldal v. Cook County, 506 U.S. 56, 61 (1992) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)); see also United States v. Va Lerie, 424 F.3d 694, 701 (8th Cir. 2005) (a "seizure is defined as some meaningful interference with an individual's possessory interests in his property."). By not allowing plaintiffs to use their televisions and forcing them to send them offsite, defendants have interfered with plaintiffs' possessory rights, even if defendants do not retain the televisions. As stated previously, plaintiffs retain constitutional rights despite their commitment, including basic Fourth Amendment rights against unreasonable seizures. See Bell, 441 U.S. at 545. "When an institutional restriction infringes a specific

constitutional guarantee," ­ here, the Fourth Amendment right against unreasonable seizures, ­ "the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security." Id. at 546. Here, no facts have been developed to date, much less submitted to the Court, by any party that speak to the reasons for the 20-inch television policy. As such,

accepting plaintiffs allegations as true, this Court finds that plaintiffs' Complaint contains "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp.

Beaulieu/Yazzie R&R

28

127 S.Ct. at 1974.

Defendants' motion to dismiss plaintiffs' Four th Amendment

television claim should be denied. 2. Procedural Due Process Claim

Plaintiffs asserted that they had a right to procedural due process prior to having their 20-inch televisions sent out from the Annex. See Complaint, ¶ IV(3). Defendants argued that plaintiffs' televisions do not constitute a constitutionally protected interest. See Defs.' Mem. at p. 15. A procedural due process claim "is cognizable only if there is a recognized liberty or property interest at stake." Johnson v. City of Minneapolis, 152 F.3d 859, 861

(8th Cir. 1998). This Court finds that there is no liberty interest in having a 20-inch television. Further, for a property interest to arise, a plaintiff must have more than "mere subjective expectancy." Batra v. Board of Regents of the Univ. of Neb., 79 F.3d 717, 720 (8th Cir. 1996). "Property interests are created by existing rules or understandings that stem from an independent source, such as state law." Id. The Eighth Circuit employs a two -part test to determine whether a state statute or policy is sufficient to create a constitutionally protected property interest: A statute, regulation, or official policy pronouncement will give rise to a protected property interest only where (1) it contains particularized substantive standards or criteria that guide the decisionmakers, and (2) it uses mandatory language requiring the decisionmakers to act in a certain way, thus limiting the official's discretion. Jennings v. Lombardi, 70 F.3d 994, 995-996 (8th Cir. 1995) (citing Craft v. Wipf, 836 F.2d 412, 417 (8th Cir. 1987)). "Where the statute or policy is only procedural, or where it grants to the decisionmaker discretionary authority in implementing it, a protected property interest is not created." Id.

Beaulieu/Yazzie R&R

29

Applying the two -part test to this statute, it is clear that plaintiffs do not have a protected property interest in their 20-inch televisions. There is no Minnesota statute giving civilly committed individuals generally, or Program detainees, specifically, the right to possess all of their property. Further, plaintiffs alleged in their Complaint that they were required to send out their twenty-inch televisions pursuant to a policy that only allowed thirteen-inch televisions. See Complaint, ¶ (IV)(3). While this policy may create an expectancy in the possession of televisions that are 13 inches or smaller, it does not create any expectancy in the possession of televisions that are 20 inches in size. Plaintiffs have not established that they have a constitutionally protected property interest in the possession of their 20-inch televisions, so as to invoke procedural due process protections. As such, defendants' motion to dismiss as it pertains to plaintiffs' television procedural due process claim should be granted and the claim dismissed with prejudice. 3. Equal Protection Claim

As stated in Section III.D.2 of this Report and Recommendation, supra, given that the plaintiffs' housed in the Annex are not similarly situated to other civilly committed individuals housed in different faculties or units, their Equal Protection claims pertaining to their 20-inch televisions should be dismissed with prejudice. G. Opening of Incoming Legal Mail Outside of Plaintiffs' Presence

Plaintiffs asserted that defendants North Unit Director Considine and South Unit Director Hattenberg, acting under the color of state law and at the direction of Commissioner Ludeman, Corrections Commissioner Fabian, Warden Carlson, Program

Beaulieu/Yazzie R&R

30

Director Erskine, Site Director Mooney, and Security Director Johnson, violated their Fourth Amendment rights and their rights under the Equal Protection Clause by directing their staff to open and inspect clearly marked incoming legal mail outside of the presence of Program detainees. See Complaint, ¶ (IV)(4). 1. Fourth Amendment Claim

"Privileged prisoner mail, that is mail to or from an inmate's attorney and identified as such, may not be opened for inspections for contraband except in the presence of the prisoner." Jensen v. Klecker, 648 F.2d 1179, 1182 (8th Cir. 1981) (citing Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974)); see also Travis v. Norris, 805 F.2d 806, 809 n. 1 (8th Cir. 1986) (citations omitted) ("An inmate's privileged legal mail may be opened in the inmate's presence to inspect for contraband."); Thomsen v. Ross 368 F.Supp.2d 961, 974 (D. Minn. 2005) ("A jailer who opens a prisoner's legal mail outside of the prisoner's presence may violate a prisoner's constitutional rights.") (citations omitted). "Claims based on the opening of a prisoner's legal mail may be analyzed as violations of either the Sixth Amendment right to counsel, or the Fourteenth Amendment right to court access." 418 U.S. at 576). In this case, plaintiffs did not bring their mail claim under Six Amendment. Further, while they did assert an Equal Protection claim under the Fourteenth Amendment, they did not assert a claim that they were denied access to the courts under the Fourteenth Amendment. Instead, plaintiffs alleged a violation of the Fourth Amendment. As such defendants' motion to dismiss should be granted with regards to Thomsen, 368 F. Supp.2d at 974 (citing Wolff,

Beaulieu/Yazzie R&R

31

plaintiffs' Fourth Amendment claim and the claim should be dismissed with prejudice for failure to state a claim upon which relief can be granted. 2. Equal Protection Claim

As stated in Section III.D.2 of this Report and Recommendation, supra, given that the plaintiffs housed in the Annex are not similarly situated to other civilly committed individuals housed in different facilities around Minnesota, their Equal Protection claims pertaining to defendants opening their legal mail should be dismissed with prejudice. H. Access to Religious Services, Restricted Movement and Body Pat Searches

Plaintiffs' asserted that policies created by defendants North Unit Director Considine and South Unit Director Hattenberg, at the direction of Commissioner Ludeman, Program Director Erskine, Site Director Mooney, and Security Director Johnson, restricted or denied their access to religious services, restricted their movement in the facility, and subjected them to body-pat searches before and after movement to the MDOC gym, all in violation of their Fourteenth Amendment rights under the Equal Protection Clause. See Complaint, ¶ (IV)(5). As stated in Section III.D.2 of this Report and Recommendation, supra, given that the plaintiffs' housed in the Annex are not similarly situated to other civilly committed individuals housed in different facilities located throughout Minnesota, their Equal Protection claims pertaining to access to religious services, restricted movement and body pat searches should be dismissed with prejudice. I. Access to the Courts Claim

Plaintiffs maintain that defendants infringed on their right to gain meaningful access to the court in violation of the Fourteenth Amendment by restricting their access

Beaulieu/Yazzie R&R

32

to a legal computer, requiring them to pay for access before they were allowed to use the computer, denying them access to private counsel, limiting or restricting time allowed by them to confer with counsel over the telephone, and forcing them, as pro se litigants, to give Moose Lake staff legal documents if they wanted copies of those documents made. See Complaint, ¶ (IV)(6). Under the First Amendment, the freedom to petition includes the right of access to courts. See BE & K Const. Co. v. N.L.R.B., 536 U.S. 516, 525 (2002) (citation omitted). This Court notes that "[t]he due process clause of the Fourteenth Amendment makes the First Amendment applicable to the states." Republican Party of Minnesota v. White, 416 F.3d 738, 748 (8th Cir. 2005) (citing McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 336 n. 1 (1995)). In order to state a claim for denial of access to the courts, an inmate must demonstrate that he incurred actual injury; in other words, the inmate must show that the alleged deprivations actually hindered his efforts to pursue a legal claim. Klinger, 107 F.3d at 617 (citing Lewis v. Casey, 518 U.S. 343 (1996)). This showing of prejudice is required of pretrial detainees, as well as prisoners. See

Thomsen, 368 F. Supp.2d at 974 (citing Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993)). Additionally, in order to survive a motion to dismiss, plaintiffs must allege in their access-to-courts claim that defendants' actions resulted in actual harm or actual injury, such as the loss or rejection of a nonfrivolous legal claim regarding sentencing or the conditions of confinement. See Chambers v. Gilmer, No. 06-2026, Fed.Appx. 469, 2007 WL 1040330 at *1 (8th Cir. April 09, 2007) ("Specifically with regard to his accessto-courts claim, defendants' alleged actions did not prevent Chambers from asserting

Beaulieu/Yazzie R&R

33

his rights in a lawsuit against the police officers who allegedly mistreated him, and Chambers did not allege the requisite actual injury from defendants' actions to state such a claim in any event."); Sikora v. Hopkins , No. 98-2033, 163 F.3d 603, 1998 WL 738327 at *1 (8th Cir. Oct. 23, 1998) (We agree that Sikora failed to state an access-tocourts claim because he failed to allege actual harm, . . .") (citations omitted).14 Given that plaintiffs failed to allege in their Complaint any actual harm that resulted from defendants' alleged actions ( .g., impinging on their ability to bring a particular none frivolous claim), plaintiffs have failed to state an access-to-courts claim. Defendants' motion to dismiss should be granted as to their access-to-courts claims and the claims be dismissed without prejudice. J. Telephone Access

Plaintiffs claimed Commissioner Ludeman created a policy that resulted in the installation of a phone system which only allowed monitored, outgoing telephone calls at a fee in excess of 34 cents per minute. See Complaint, ¶ (IV)(7). Plaintiffs asserted that the fee charge is unreasonable and extortion and that the policy and phone system violated their First Amendment right to telephone access. Id. Further, plaintiffs alleged that the phone system violated their Fourteenth Amendment rights under the Equal Protection Clause because patients civilly committed under Minn. Stat. § 254B as mentally ill and dangerous, are allowed incoming and outgoing telephone calls and are

14

The Eighth Circuit in Chambers and Sikora dismissed the complaints at the prescreening level. In doing so, both cases cited to the Supreme Court's decision in Lewis, a case which was decided after a three-month bench trial, which required the plaintiffs to show or establish injury to make out an access-to-court claim. 518 U.S. at 349-350. The Court notes that the Supreme Court did not address whether the claimants had to allege actual injury in their complaint.
Beaulieu/Yazzie R&R

34

allowed to purchase calling cards that provide telephone access for as little as 3 cents per minute. Id. 1. First Amendment Claim

Turning to their First Amendment claims, this Court finds that plaintiffs have the right to communicate with individuals outside of the Moose Lake facility and that the use of a telephone is merely one means of exercising this right. See Valdez v. Rosenbaum, 302 F.3d 1039, 1047-48 (9th Cir. 2002) (finding that a restriction of a pretrial-detainee's access to a telephone did not violate the First Amendment); see also Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir. 1989) ("Although in some instances prison inmates may have a right to use the telephone for communication with relatives and friends, prison officials may restrict that right in a reasonable manner, `subject to rational limitations in the face of legitimate security interest of the penal institution.'") (quoting Hutchings v. Corum, 501 F .Supp. 1276, 1296 (W.D. Mo.1980)). Nevertheless, plaintiffs do not have a First Amendment right to a specific rate for their telephone calls. See e.g., Arsberry v. Illinois, 244