Mendez v. Dole et al

Filing 85

MEMORANDUM OPINION AND ORDER ADOPTING 81 REPORT AND RECOMMENDATION; Plaintiff Raphael Mendez's Objection 82 is OVERRULED; GRANTING 66 Defendant Officer Joseph Peterson's Motion to Dismiss or for Summary Judgment (Written Opinion). Signed by Judge Ann D. Montgomery on 5/14/2018. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Raphael Mendez,
Plaintiff,
MEMORANDUM OPINION
AND ORDER
Civil No. 16-2644 ADM/BRT

v.
Officer Joseph Peterson,

Defendant.
______________________________________________________________________________
Raphael Mendez, pro se.
Erin M. Secord, Assistant United States Attorney, United States Attorney’s Office, Minneapolis,
MN, on behalf of Defendants.
______________________________________________________________________________
I. INTRODUCTION
This matter before the undersigned United States District Judge for a ruling on Plaintiff
Raphael Mendez’s (“Mendez”) Objection [Docket No. 82] to Magistrate Judge Becky R.
Thorson’s January 23, 2018 Report and Recommendation [Docket No. 81] (“R&R”). In the
R&R, Judge Thorson recommends granting Defendant Officer Joseph Peterson’s (“Officer
Peterson”) Motion to Dismiss or for Summary Judgment [Docket No. 66]. For the reasons set
forth below, Mendez’s Objection is overruled, the R&R is adopted, and Officer Peterson’s
Motion to Dismiss or for Summary Judgment is granted.
II. BACKGROUND
Mendez is currently incarcerated at the Federal Medical Center in Rochester, Minnesota
(“FMC Rochester”). See Mendez v. Dole, Civ. No. 16-2644, 2017 WL 3730995, at *1 (D.
Minn. Aug. 29, 2017). Mendez was indicted in the U.S. Virgin Islands in 1990 for assault,
possession of an unlicensed firearm during the commission of a violent crime, and possession of

a firearm by a felon. See Mendez v. Bureau of Prisons, No. 08-4971, 2009 WL 3856925, at *1
(D. Minn. Nov. 17, 2009). After he was determined to be incompetent to stand trial, Mendez
was transferred to FMC Butner, North Carolina for a period of restoration under 18 U.S.C.
§ 4246. Id. Mendez was unable to be restored to competency, and in 1991 he was civilly
committed in the Eastern District of North Carolina. Id.
On August 5, 2016, Mendez filed this 42 U.S.C. § 1983 suit against known and unknown
individuals employed at FMC Rochester stemming from his July 25, 2016 placement in the
Segregated Housing Unit (“SHU”). See Compl. [Docket No. 1]; Am. Compl. [Docket No. 6].
Mendez seeks monetary compensation and a transfer to FMC Butner. Id.
On January 31, 2017, all defendants except Officer Peterson filed a Motion to Dismiss or
for Summary Judgment [Docket No. 23]. At that time, Officer Peterson had not been served
because Mendez did not include Officer Peterson’s full name in the Complaint [Docket No. 1] or
Amended Complaint [Docket No. 6]. On August 29, 2017, the Motion to Dismiss or for
Summary Judgment as to all other defendants was granted. See Mem. Op. Order [Docket No.
50].
On August 11, 2017, Officer Peterson was properly served, and this Motion to Dismiss
was filed on October 6, 2017.
A. The Bureau of Prisons’ Inmate Discipline Program
A comprehensive analysis of the Bureau of Prisons’ (“BOP”) Inmate Discipline Program
is set forth in the R&R and is incorporated by reference. See R&R 2–4. Put simply, the BOP
may impose sanctions on inmates who commit “prohibited acts.” 28 C.F.R. § 541.1. When BOP
staff witness or reasonably believe an inmate has committed a prohibited act, an incident report

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is created and a BOP staff member investigates the incident. Id. §§ 541.5(a), (b). After the
investigation is complete, a Unit Discipline Committee (“UDC”) reviews the incident report, and
then determines whether the inmate did or did not commit the prohibited act. Id. § 541.7(a).
The UDC may refer the matter to the Discipline Hearing Officer (“DHO”) for further review,
which may include a hearing and the opportunity to present evidence and call witnesses. Id.
§§ 541.7, (a), (g); § 541.8.
During the disciplinary process, if it appears that the inmate is mentally ill, the inmate
will be examined to determine whether the inmate is responsible for his or her conduct. Id.
§ 541.6. Typically, there is no hearing if the inmate is found not competent or not responsible
for their conduct. Stolarzyk Decl. [Docket No. 26] ¶ 6.
B. Mendez Sends Allegedly Threatening Email
On July 25, 2016, Mendez was placed in the SHU after he wrote an email to his brother
about his workshop supervisor, Mr. Jacobson. Compl. [Docket No. 1] 1–2. Officer Dolan, who
was monitoring inmates’ communications, viewed the email as threatening towards Mr.
Jacobson. Id. at 3–4, Ex. 1; Am. Compl. 3.
Because Mendez is civilly committed under 18 U.S.C. § 4246, he was routinely evaluated
for his competency and responsibility. Stolarzyk Decl. ¶ 26, Ex. E. FMC Rochester’s Chief
Psychologist, Dr. Gabel, interviewed Mendez and concluded that he was not responsible by
reason of mental illness for writing the threatening email. Id.
On July 28, 2016, the UDC recommended to the DHO that Mendez be found not
responsible for his conduct based on the psychology evaluation. Id. ¶ 13, Ex. D at 1–2. The
DHO concurred with the recommendation, which was noted on his disciplinary record, and

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Mendez was released from the SHU on August 1, 2016. Id. ¶ 14, Ex. C at 1; Compl. 2, 4–5.
C. Claim Against Officer Peterson
Mendez alleges that Officer Peterson stole his personal belongings while he was in the
SHU. Am. Compl. 3–4. The allegedly stolen items include electronics, clothing, jewelry,
stationery and books, and legal documents. Compl. Ex. 1 at 6; Bush Decl. [Docket No. 27] Ex.
B. Mendez values his personal property at $203.75 and his legal documents at $9,796.25. Bush
Decl. Ex. B.
On September 19, 2016, Mendez submitted an administrative claim under 31 U.S.C.
§ 3723 (a)(1) for the allegedly stolen items. Id. ¶¶ 5–6, Ex. A. Mendez’s claim was reviewed
and denied. Id. ¶¶ 6–7, Exs. B, C.
D. The R&R
In the R&R, Judge Thorson concluded that Mendez’s claims are barred by sovereign
immunity. Judge Thorson also determined that even if sovereign immunity did not apply,
Mendez’s confinement in the SHU was not a due process violation, and his allegation
concerning his lost property did not rise to an actionable claim.
E. Mendez’s Objection
On February 5, 2018, Mendez filed an Objection to the R&R, to which the Government
Responded [Docket No. 83]. On February 26, 2018, Mendez filed a Reply [Docket No. 84] to
the Government’s Response.
In his Objection and Reply, Mendez argues that the R&R should not be adopted because:
1) Judge Thorson is not an impartial decisionmaker; 2) the R&R erroneously states that he was
charged by Indictment when he was actually charged by Information; 3) Dr. Gabel made

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incorrect comments on Mendez’s mental health; 4) Mendez’s time in the SHU constituted false
imprisonment; and 5) the email that he wrote was not threatening. Finally, Mendez cites case
law that he argues supports sustaining his Objection.
III. DISCUSSION
A. Standard of Review
The standard of review of a magistrate judge’s order on a dispositive issue is de novo.
See 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.2. “The district judge may accept, reject, or
modify the recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” D. Minn L.R. 72.2(b).
B. Mendez’s Objection
Mendez’s Objection does not address the R&R’s reasoning or conclusion with respect to
sovereign immunity. After a de novo review, the Court reaches the same conclusion as Judge
Thorson, that Mendez’s claims are barred by sovereign immunity.
Even if sovereign immunity does not apply, Judge Thorson correctly reasoned that
Mendez’s claims are legally deficient, and his objections to the contrary are not persuasive.
First, Mendez’s argument challenging Judge Thorson’s impartiality lacks merit. A judge has a
duty to decide the cases and controversies that come before them unless the judge’s impartiality,
viewed objectively, might reasonably be questioned. See Jeep v. Gov’t of United States, No. 16810, 2016 WL 10636356, at *1 (E.D. Mo. Nov. 7, 2016) (citing cases). Mendez does not offer
any evidence that would convince a reasonable person to question Judge Thorson’s impartiality.
Mendez’s Objection on this ground is overruled.
Second, whether Mendez was charged by Information or Indictment is irrelevant to the

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claim Mendez alleges in this lawsuit. Although the R&R may have misstated that Mendez was
indicted, this error has no effect on whether his due process rights were violated.
Similarly, Mendez’s issues with Dr. Gabel are unrelated to the single remaining
defendant, Officer Peterson. Claims against Dr. Gabel have already been litigated and
dismissed, and Mendez cannot use this Objection as a way to revive those claims. See Mem. Op.
Order [Docket No. 50]; Mendez v. Dole, 2017 WL 3730995.
Mendez’s Objection discussing false imprisonment also does not address Officer
Peterson and is overruled. The remaining claim in this lawsuit is an allegation that Officer
Peterson violated Mendez’s due process rights when Mendez’s property was allegedly stolen
while he was in the SHU. Mendez’s challenges to his general confinement, civil commitment,
mental health diagnosis, and medication, have already been adjudicated. See Mendez v. Bureau
of Prisons, 2009 WL 3856925.
Mendez’s argument that the email he sent was not threatening—interpreted as a
challenge to his confinement in the SHU—also lacks merit. Although the Supreme Court has
held that the Due Process Clause protects against conditions of confinement that “impose []
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life[,]” the Eighth Circuit has stated that “demotion to segregation, even without cause, is not
itself atypical and significant hardship.” Sandin v. Conner, 515 U.S. 472, 484 (1995); Phillips v.
Norris, 320 F.3d 844, 847 (8th Cir. 2003). Six days in segregated housing does not constitute
atypical and significant hardship. Orr v. Larkins, 610 F.3d 1032, 1034 (8th Cir. 2010).
The cases cited by Mendez have no bearing on this case. Mookini v. United States, 303
U.S. 201 (1938), and Parrott v. Gov’t of the Virgin Islands, 230 F.3d 615 (3d Cir. 2000), involve

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jurisdictional and statutory matters that are irrelevant to the due process claim raised in this
lawsuit. Neitzke v. Williams, 490 U.S. 319 (1989), also does not aid Mendez because it
addresses the legal standard for dismissing cases under Federal Rule of Civil Procedure 12 and
28 U.S.C. § 1915, the rule for proceeding in forma pauperis. This case is at the Rule 56 stage,1
and Mendez has been granted permission to proceed without prepaying fees or costs. See Order
[Docket No. 7] (granting Mendez’s application to proceed without prepaying fees or costs).
Last, Mendez v. FCI Butner, 953 F.2d 638 (4th Cir. 1992), and Zinermon v. Burch, 494 U.S. 113
(1990) provide not support for the due process claim alleged against Officer Peterson.
Finally, although not objected to by Mendez, the R&R properly concluded that Mendez
did not state a due process violation for his allegedly stolen property. The administrative claim
Mendez filed under 31 U.S.C. § 3723(a)(1) is an adequate post-deprivation remedy, and the
agency’s decision with respect to a claim under § 3723 is not subject to judicial review.
McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993).; Edkins v. United States, No. 13-14421,
2015 WL 871587, at *14 n.4 (E.D. Mich. Feb. 27, 2015).

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Judge Thorson considered facts outside the pleadings and property construed the
present motion as one for summary judgment. R&R at 2 n.2.
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IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Plaintiff Raphael Mendez’s Objection [Docket No. 82] is OVERRULED;

2.

Magistrate Judge Becky R. Thorson’s Report and Recommendation [Docket No.
81] is ADOPTED;

3.

Defendant Officer Joseph Peterson’s Motion to Dismiss or Motion for Summary
Judgment [Docket No. 66] is GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: May 14, 2018.

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