Ivey et al v Johnston

Filing 107

ORDER: IT IS HEREBY ORDERED that: 1. Defendant's Motion for Summary Judgment 78 is GRANTED; and 2. Plaintiff's Motion for Summary Judgment 89 is DENIED. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 1/13/2021. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Christopher Ivey,

Civ. No. 18-1429 (PAM/DTS)
Plaintiff,

v.

MEMORANDUM AND ORDER

Nancy Johnston,
Defendant.

This matter is before the Court on the parties’ cross-Motions for Summary
Judgment. For the reasons set forth below, Defendant Nancy Johnston’s Motion is granted
and Plaintiff Christopher Ivey’s Motion is denied.
BACKGROUND
The full factual background has been set forth in previous rulings and need not be
repeated here. (Docket Nos. 40, 43, 61, 63.) In brief, Plaintiff Christopher Ivey is a civilly
committed resident of the Minnesota Sex Offender Program (“MSOP”). Plaintiff brings a
single-count Amended Complaint alleging that MSOP policies banning clients from
accessing the internet are overly broad and unlawfully restrict his First Amendment rights
under the United States Constitution. He seeks an injunction against MSOP’s ban on client
internet use, “a declaration that the acts and omissions of Defendant . . . violate Plaintiff’s
rights under the U.S. Constitution,” a “court order outlining the general and/or specific
boundaries of what level of access to internet platforms and related technologies which
cannot be blocked at MSOP,” and access to email, social-media websites, and other various

websites. (Am. Compl. (Docket No. 70) ¶¶ 36-37; Pl.’s Ans. to Interrog. (Docket No. 81Ex. 2) at 8-9.)
The parties now cross-move for summary judgment. Defendant contends that there
is no genuine dispute of material fact regarding the constitutionality of MSOP’s internet
policies. Plaintiff argues that MSOP’s internet policies violate his First Amendment rights
because he cannot interact with others via social media, contact political candidates and
elected officials, and access other political and news information online.
DISCUSSION
Summary judgment is proper if there are no disputed issues of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The Court
must view the evidence and inferences that “may be reasonably drawn from the evidence
in the light most favorable to the nonmoving party.” Enter. Bank v. Magna Bank of Mo.,
92 F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there
is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing a properly supported
motion for summary judgment may not rest on mere allegations or denials, but must set
forth specific facts in the record showing that there is a genuine issue for trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
The Supreme Court determined that a prison regulation “is valid if it is reasonably
related to legitimate penological interests.” Turner v. Safely, 482 U.S. 78, 89 (1987).
Courts in this District have applied a modified version of the test announced by the
Supreme Court in Turner, when considering constitutional claims of a civilly committed
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person. See Karsjens v. Piper, 336 F. Supp. 3d 974, 992 (D. Minn. 2018). Specifically,
Courts use a four-factor test to determine whether an MSOP policy is reasonably related to
valid penological interests: (1) whether MSOP’s policy bears a “valid, rational connection”
to legitimate institutional and therapeutic interests; (2) “whether there are alternative means
of exercising the right;” (3) the impact that the accommodation would have on MSOP, its
resources, staff, and other clients; and (4) whether simple and cost-effective alternatives
exist that meet the program’s objections. Turner, 482 U.S. at 89-90; see also Banks v.
Jesson, No. 11cv1706, 2017 WL 1901408, at *8-9 (D. Minn. May 8, 2017) (Nelson, J.)
(applying the modified Turner test to evaluate an MSOP client’s constitutional claims).
MSOP clients are civilly committed as “sexual psychopathic personalities” and
“sexually dangerous persons.” (Def.’s Opp’n Mem. (Docket No. 100) at 9.) Such
individuals have “considerably less [liberty interests] than those held by members of free
society.” Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006). “The rehabilitation
of sex offenders and institutional security of MSOP are legitimate government interests
under Turner.” Banks, 2017 WL 1901408, at *8. Defendant maintains that “allowing
clients at MSOP to have internet access would undoubtedly be detrimental to the
rehabilitation of MSOP clients and the security of MSOP.” (Id. at 16.) Thus, MSOP
prevents clients from using the internet because some MSOP clients would use the internet
to: (1) communicate with minors and other vulnerable individuals, (2) contact their victims
or victim’s families, (3) plot escapes, (4) stalk, abuse, and harass others, (5) access countertherapeutic stimuli, and (5) participate in criminal activity. (Hébert Decl. (Docket No. 82)
¶ 4.)
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Plaintiff fails to demonstrate that MSOP’s ban on internet use is not rationally
related to legitimate and institutional therapeutic interests, as Turner requires. 1 To the
contrary, Plaintiff concedes that MSOP clients would likely engage in the activities that
MSOP’s internet-ban seeks to prevent if given unrestricted internet access, and that there
is no way to provide MSOP clients internet access without risk of clients doing so. (Ivey
Dep. (Docket No. 81-1) at 27-29.)
Moreover, Plaintiff does not contest that he has alternative means of accessing
information found on the internet. In particular, he seeks access to the internet for
information related to politics, political candidates, and elected officials.

Plaintiff

acknowledges that he has access to mail, telephone, newspapers, magazines, radio, and
some television channels. (Def.’s Opp’n Mem. at 15.) Additionally, Plaintiff’s friends and
family may print information from the internet and mail it to him. (Ivey Dep. at 38.)
Plaintiff indeed admits that his stepfather has conducted internet research for him. (Pl.’s
Resp. Mem. (Docket No. 101) at 19 n.5.) And Plaintiff has contacted politicians via mail,
without difficulty. (Ivey Dep. at 15.)
Although Plaintiff seeks more convenient access to information found on the
internet, he provides no authority that convenience is the constitutional standard. Because
information, including political information, is readily available in the mediums to which

Plaintiff persists in his view that MSOP’s internet policy is unconstitutional under
Packingham v. North Carolina despite the Court’s previous Order (Docket No. 43) advising
him otherwise. Packingham does not apply to Plaintiff, as he is civilly committed and
subject to different standards than the individuals discussed in that case. Packingham v.
North Carolina, 137 S. Ct. 1730 (2017).
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Plaintiff has access, he has sufficient “alternative means” for accessing information. See
Murchison v. Rogers, 779 F.3d 882, 891 (8th Cir. 2015.) Plaintiff fails to meet his burden
under the second Turner factor.
Plaintiff proposes MSOP clients should be granted at least limited internet access,
but he utterly fails to demonstrate that such an accommodation would satisfy the third and
fourth Turner factors. See Ivey v. Mooney, No. 05cv2666, 2008 WL 4527792, at *13 (D.
Minn. Sept. 30, 2008) (Tunheim, J.). He contends that MSOP clients should be granted
internet and email access in a similar manner to that of MSOP staff. (Am. Compl. ¶ 23.)
But MSOP staff members are given internet access as their job duties dictate; MSOP clients
have no such reason to access the internet. (Luhman Decl. (Docket No. 84) ¶ 7.)
Without submitting evidence to support his claim, Plaintiff asserts that MSOP can
purchase technology that would allow MSOP clients to access certain websites while
blocking access to other websites. (Pl.’s Resp. Mem. (Docket No. 101) at 13.) MSOP,
however, cannot purchase the technology that Plaintiff describes because no technology
exists that would allow MSOP to monitor client communications in real time. (Hébert
Decl. ¶ 17.)
Further, Plaintiff suggests that MSOP staff members could monitor clients’ internet
use in real time, yet presents no evidence or expert testimony that such supervision would
not unreasonably burden MSOP. See Fed. R. Civ. P. 56(c)(1)(A). In-person monitoring
of client internet use is not a feasible accommodation because of the impact it would have
on MSOP, its staff, its resources, and other MSOP clients. (Luhman Decl. ¶¶ 12, 17-26.)
Notably, such real-time monitoring would not prevent MSOP clients from viewing
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counter-therapeutic content, participating in criminal activity, or communicating with
minors, vulnerable individuals, victims, and their families—it would only punish clients
after the fact. (Johnston Decl. (Docket No. 83) ¶ 24, Luhman Decl. ¶ 24.)
Likewise, Plaintiff presents no simple and cost-effective alternative that would
provide MSOP clients internet access and also meet MSOP’s objectives. Plaintiff fails to
demonstrate that there is any genuine material fact in dispute as to the constitutionality of
MSOP’s internet policies under the Turner standard.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.

Defendant’s Motion for Summary Judgment (Docket No. 78) is GRANTED;
and

2.

Plaintiff’s Motion for Summary Judgment (Docket No. 89) is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 13, 2021

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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