Reddick v. Paine et al

Filing 8

MEMORANDUM AND ORDER regarding Complaint - Pro Se 1 filed by Dwight E. Reddick. It is ordered that Plaintiff's action is dismissed without prejudice. Judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy and form mailed to pro se party)(SLP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DWIGHT E. REDDICK,
Plaintiff,
v.
MARY PAINE, Ph. D., and
NICHOLAS GILES, Psy. D.,
Defendants.

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8:16CV556

MEMORANDUM
AND ORDER

The plaintiff, Dwight E. Reddick, filed this case on December 21, 2016, and he
has since been granted leave to proceed in forma pauperis. The court now conducts
an initial review of Reddick’s complaint to determine whether summary dismissal is
appropriate under 28 U.S.C. § 1915(e)(2). For the reasons stated below, the court
determines that action should be dismissed without prejudice.
I. SUMMARY OF COMPLAINT
Reddick alleges he is a civilly committed detainee at the Norfolk Regional
Center in Norfolk, Nebraska. The defendants, who are sued in both their individual
and official capacities, are identified in the complaint as two psychologists who are
employed by Counseling Affiliates of Nebraska, LLC, a company which allegedly
has a contract with the Nebraska Department of Health and Human Services “whereby
all sex offenders having inpatient treatment at the Lincoln Regional Center, in
Lincoln, Nebraska, and staying in Lancaster County, Nebraska, are required to agree
to participate in the Sexual Trauma Offense Prevention Program facilitated by
defendants” (Filing No. 1 at CM/ECF p. 4 (underlining in original)). Reddick further
alleges:

In order to be accepted by the Sexual Trauma Offense Prevention
(STOP) Program, the client is required to agree to submit to polygraph
testing at the whim of the defendants. Refusal to submit to polygraph
testing results in termination from the STOP Program or failure to be
recommended for outpatient treatment by DHHS. This constitutes
compulsion! Plaintiff was compelled to agree to polygraph testing on
October 13, 2015 and was compelled to submit to said test on October
19, 2015!
(Filing No. 1 at CM/ECF p. 4 (underlining in original)).
Reddick claims the defendants deprived him of his Fifth Amendment right
against self-incrimination1 (Filing No. 1 at CM/ECF p. 3) because:
During manditory [sic] polygraph testing, I was required to make
potentially self-incriminating disclosures. During pre-test discussion
with the test administrator, it was alleged that I made statements I did
not make, which were then used to have me brought back before the
Lancaster County Mental Health Board and which resulted in my recommittal to inpatient treatment!
(Filing No. 1 at CM/ECF p. 5). Reddick seeks an “immediate discharge from all
commitment status” and “$1,000,000.00 in punitive damages” (Filing No. 1 at
CM/ECF p. 5).

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“The Self-Incrimination Clause of the Fifth Amendment, which applies to the
States through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct.
1489, 12 L.Ed.2d 653 (1964), provides that no person ‘shall be compelled in any
criminal case to be a witness against himself.’” Allen v. Illinois, 478 U.S. 364, 368
(1986). The Supreme Court “has long held that the privilege against self-incrimination
not only permits a person to refuse to testify against himself at a criminal trial in
which he is a defendant, but also privileges him not to answer official questions put to
him in any other proceeding, civil or criminal, formal or informal, where the answers
might incriminate him in future criminal proceedings.” Id. (internal quotations and
citations omitted).
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II. STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must
dismiss a complaint or any portion of it that states a frivolous or malicious claim, that
fails to state a claim upon which relief may be granted, or that seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”). “The essential function of
a complaint under the Federal Rules of Civil Procedure is to give the opposing party
‘fair notice of the nature and basis or grounds for a claim, and a general indication of
the type of litigation involved.’” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d
843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir.
1999)). However, “[a] pro se complaint must be liberally construed, and pro se
litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d
at 849 (internal quotation marks and citations omitted).
III. ANALYSIS
Although Reddick has pleaded this case as an action brought under 42 U.S.C.
§ 1983, he is seeking immediate discharge from the Norfolk Regional Center by
claiming that his re-commitment to inpatient treatment was based on a false report
regarding statements he allegedly made to a polygraph examiner. In other words,
Reddick is claiming that the civil commitment order entered by the Lancaster County
Mental Health Board is invalid. Under applicable law, however, such a claim can only

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be pursued in federal court through a habeas corpus proceeding and Reddick must first
exhaust his state court remedies.
In Heck v. Humphrey, 512 U.S. 477 (1994), involving a § 1983 action brought
by a state prisoner seeking damages from prosecutors and a police investigator whose
actions allegedly caused him to be unlawfully convicted, the Supreme Court stated:
This case lies at the intersection of the two most fertile sources of
federal-court prisoner litigation—the Civil Rights Act of 1871, Rev.Stat.
§ 1979, as amended, 42 U.S.C. § 1983, and the federal habeas corpus
statute, 28 U.S.C. § 2254. Both of these provide access to a federal
forum for claims of unconstitutional treatment at the hands of state
officials, but they differ in their scope and operation. In general,
exhaustion of state remedies “is not a prerequisite to an action under
§ 1983,” Patsy v. Board of Regents of Fla., 457 U.S. 496, 501, 102 S.Ct.
2557, 2560, 73 L.Ed.2d 172 (1982) (emphasis added), even an action by
a state prisoner, id., at 509, 102 S.Ct., at 2564. The federal habeas corpus
statute, by contrast, requires that state prisoners first seek redress in a
state forum. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71
L.Ed.2d 379 (1982).
Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439
(1973), considered the potential overlap between these two provisions,
and held that habeas corpus is the exclusive remedy for a state prisoner
who challenges the fact or duration of his confinement and seeks
immediate or speedier release, even though such a claim may come
within the literal terms of § 1983. Id., at 488-490, 93 S.Ct., at 1835-1837.
We emphasize that Preiser did not create an exception to the “no
exhaustion” rule of § 1983; it merely held that certain claims by state
prisoners are not cognizable under that provision, and must be brought
in habeas corpus proceedings, which do contain an exhaustion requirement.
Id. at 480-81 (footnote omitted; emphasis in original). The Court held that “in order
to recover damages for allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has
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been reversed on direct appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Id. at 486-87
(footnote omitted).
While Heck and Preiser involved criminal convictions, the Court’s reasoning
in those cases applies equally to civil commitments. As explained by the United States
Court of Appeals for the Ninth Circuit, in affirming the dismissal of a § 1983 action
brought by a civil detainee seeking damages and declaratory relief against a California
Sexually Violent Predators Act (“SVPA”) evaluator:
Heck’s favorable termination rule was intended to prevent a
person in custody from using § 1983 to circumvent the more stringent
requirements for habeas corpus. Unlike the PLRA [Prison Litigation
Reform Act], the habeas statute is not textually limited to “prisoners.”
Rather, § 2254 directs that a federal court “shall entertain an application
for a writ of habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court.” 28 U.S.C. § 2254(a) (emphasis added).
It is well established that detainees under an involuntary civil
commitment scheme such as SVPA may use a § 2254 habeas petition to
challenge a term of confinement. See Duncan v. Walker, 533 U.S. 167,
176, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (stating that a state court
order of civil commitment satisfies § 2254’s “in custody” requirement).
We therefore conclude that Heck applies to SVPA detainees with access
to habeas relief.
Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139-40 (9th Cir. 2005); see Henderson
v. Bryant, 606 F. App’x 301, 304 (7th Cir. 2015) (unpublished) (civil detainee cannot
maintain § 1983 action seeking damages for having been recommitted based on his
violation of allegedly unconstitutional conditions of release because a successful
damages claim would vitiate the basis for his commitment; plaintiff “must first have
the custody invalidated, either in state proceedings or through a federal collateral
attack under 28 U.S.C. § 2254, before he can refile those claims and proceed under
§ 1983.”); Thomas v. Schmitt, 380 F. App’x 549, 550 (7th Cir. 2010) (unpublished)
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(plaintiff civilly committed as a sexually violent person cannot bring § 1983 action
seeking to recover damages against examining psychologist who allegedly falsified
a report which led to his commitment unless and until his commitment is invalidated).
Cf. Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017) (holding that § 1983 class action
brought by civilly committed sex offenders against managers of Minnesota Sex
Offender Program for alleged substantive due process violations could be maintained
because the action “would not necessarily imply the invalidity of any of the plaintiffs’
commitment”).
Reddick’s claim that a false report caused him to be re-committed necessarily
implies that his commitment is invalid. Such a claim is cognizable in federal court
only under 28 U.S.C. § 2254, and only if state court remedies have been exhausted.
The claim of false reporting cannot be presented in a § 1983 action unless and until
Reddick’s civil commitment is invalidated.
Reddick also claims he was required to provide “potentially self-incriminating
disclosures” as part of his evaluation. This claim does not necessarily imply the
invalidity of Reddick’s commitment, but instead raises a concern that his statements
will be used against him in a future criminal prosecution. The claim necessarily fails,
however, because even if it is assumed that the alleged adverse consequences for
refusing to submit to polygraph testing constitute “compulsion” under the Fifth
Amendment,2 “the general rule is that a person has no claim for civil liability based
on the Fifth Amendment’s guarantee against compelled self-incrimination unless
compelled statements are admitted against him in a criminal case.” Entzi v. Redmann,
485 F.3d 998, 1002 (8th Cir. 2007). At this time, the claimed violation of Reddick’s
Fifth Amendment right against self-incrimination is purely hypothetical.

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But see McKune v. Lile, 536 U.S. 24 (2002) (adverse consequences faced by
state prisoner for refusing to make admissions required for participation in sexual
abuse treatment program, including transfer to maximum security unit and loss of
privileges, were not so severe as to amount to compelled self-incrimination).
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IV. CONCLUSION
Reddick’s complaint fails to state a claim upon which relief can be granted. His
claim challenging the validity of his commitment to the Norfolk Regional Center is
Heck-barred and his Fifth Amendment self-incrimination claim is premature. He will
not be allowed to file an amended complaint because the court has concluded that to
do so would be futile.
IT IS THEREFORE ORDERED:
1.

Plaintiff’s action is dismissed without prejudice.

2.

Judgment will be entered by separate document.

3.

The clerk of the court is directed to send Plaintiff a form petition for a
writ of habeas corpus under 28 U.S.C. § 2254.

DATED this 30th day of January, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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