Opinion
A21-0042 A21-0043
07-10-2023
Ricky Lee McDeid, Appellant (A21-0042), v. Nancy Johnston, CEO/Director, Minnesota Sex Offender Program, et al., Respondents. Shane P. Garry, Appellant (A21-0043),
Marc A. Al, Andrew J. Pieper, Bradley R. Prowant, Stoel Rives LLP, Minneapolis, Minnesota; and Roxanna V Gonzalez, Dorsey &Whitney LLP, Minneapolis, Minnesota (for appellants) Keith Ellison, Attorney General, Aaron Winter, Assistant Attorney General, St. Paul, Minnesota (for respondents)
This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
Ramsey County District Court File Nos. 62-CV-19-8232; 62-CV-19-8234
Marc A. Al, Andrew J. Pieper, Bradley R. Prowant, Stoel Rives LLP, Minneapolis, Minnesota; and Roxanna V Gonzalez, Dorsey &Whitney LLP, Minneapolis, Minnesota (for appellants)
Keith Ellison, Attorney General, Aaron Winter, Assistant Attorney General, St. Paul, Minnesota (for respondents)
Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Reyes, Judge.
REYES, JUDGE
Appellants, who are civilly committed to the Minnesota Sex Offender Program (MSOP), challenge the dismissal of their complaints against respondents Nancy Johnston, director of MSOP, and Jodi Harpstead, commissioner of human services. On remand from the Minnesota Supreme Court, we are to address whether appellants' complaints sufficiently pleaded claims for violation of their federal due-process rights. See McDeid v. Johnston, 984 N.W.2d 864, 868, 872 n.3 (Minn. 2023). We conclude that the complaints sufficiently pleaded procedural due-process claims. We therefore reverse and remand to the district court for further proceedings.
FACTS
Appellants Ricky Lee McDeid and Shane P. Garry initiated these actions to challenge respondents' failure to transfer them from MSOP's secure facility at Moose Lake to a less restrictive facility known as Community Preparation Services (CPS) within a reasonable time after the Minnesota Commitment Appeal Panel (CAP) ordered that transfer. McDeid, 984 N.W.2d at 870. Appellants seek damages for alleged violations of the Due Process Clause of the Fourteenth Amendment under 42 U.S.C. § 1983, which provides a remedy for constitutional violations by state officials. Id. at 871.[
Appellants' initial complaints also sought injunctive relief and mandamus to require their immediate transfer. McDeid, 984 N.W.2d at 870. Those claims were dismissed after appellants were transferred to CPS. Id. & nn.1-2.
The district court dismissed appellants' section 1983 claims on the ground that respondents were entitled to qualified immunity, "a judicially created affirmative defense available to public officials sued for damages under section 1983 for actions taken while the officials are performing in their official capacity." Id. (quotation omitted). The district court reasoned that, although appellants had sufficiently pleaded that respondents violated their due-process rights, they had not demonstrated that those rights were clearly established. Id. at 870-71. Accordingly, the district court determined that respondents were entitled to qualified immunity. Id.; see District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (explaining that qualified immunity applies unless "(1) [state defendants] violated a federal statutory or constitutional right[] and (2) the unlawfulness of their conduct was clearly established at the time" (quotation omitted)). On appeal, we assumed without deciding that "appellants alleged sufficient facts showing violation of a statutory or constitutional right," but we were "not persuaded that appellants had a clearly established right to transfer to CPS within a reasonable time of a final CAP order at the time of the alleged violations." McDeid v. Johnston, No. A21-0042, 2021 WL 3277218, at *2 (Minn.App. Aug. 2, 2021), rev'd and remanded, 984 N.W.2d 864 (Minn. 2023).
The supreme court granted review and reversed our decision. McDeid, 984 N.W.2d at 879. Like this court, the supreme court addressed only the issue of whether appellants had a clearly established right to transfer within a reasonable time of the CAP orders. Id. at 872. The supreme court explained that CAP has the exclusive authority to order a transfer and that CAP transfer orders become effective, if not appealed, 15 days after their issuance. Id. at 874-75. And the supreme court stated the "well recognized rule that when a public officer is called upon to perform a public duty by statute and no time is specified for the performance of the act, it is required that the act be performed within a reasonable time." Id. at 877 (quotation and emphasis omitted). Accordingly, the supreme court held that appellants had a "clearly established right to transfer to [CPS] within a reasonable time following issuance of [the CAP] transfer order[s]." Id. at 867. The supreme court remanded to this court for us to address "whether [appellants] sufficiently alleged violations of their due process rights." Id. at 868.
DECISION
Our "duty on remand is to execute the mandate of the supreme court strictly according to its terms." In re PolyMet Mining, Inc., 965 N.W.2d 1, 8 (Minn.App. 2021), rev. denied (Sept. 30, 2021) (quotation and alteration omitted). Here, the supreme court's remand instructions require us to determine whether appellants have "sufficiently alleged violations of their due process rights." McDeid, 984 N.W.2d at 868. In other words, the issue on remand is whether appellants have stated viable claims for violation of their federal due-process rights, such that they may assert claims for damages under section 1983. Id. at 868, 879.
The supreme court's decision makes clear that it is a violation of state law to fail to transfer an MSOP resident to CPS within a reasonable time of a CAP transfer order. McDeid, 984 N.W.2d at 879. But section 1983 provides a remedy for the deprivation, by state officials, of a federal constitutional or statutory right. 42 U.S.C. § 1983. "[A] violation of state law, without more, does not state a claim under the federal Constitution or 42 U.S.C. § 1983." Bagley v. Rogerson, 5 F.3d 325, 328 (8th Cir. 1993).
"We review de novo whether a complaint sets forth a legally sufficient claim for relief," accepting the factual allegations of the complaint as true and drawing all reasonable inferences in favor of plaintiffs. Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 606 (Minn. 2014). "Minnesota is a notice-pleading state and does not require absolute specificity in pleading, but rather requires only information sufficient to fairly notify the opposing party of the claim against it." Id. at 604-05 (quotation omitted). "A claim is sufficient against a motion to dismiss based on Rule 12.02(5) if it is possible on any evidence which might be produced, consistent with the pleader's theory, to grant the relief demanded." N. States Power Co. v. Franklin, 122 N.W.2d 26, 29 (Minn. 1963). It can be "dismissed only if it appears to a certainty that no facts, which could be introduced consistent with the pleading, exist which would support granting the relief demanded." Id.
Our review here is complicated by the uncertain nature of appellants' claims. Before the district court and in their initial briefing to this court, appellants characterized their claims as alleging violations of procedural-due-process rights. In supplemental briefing following remand, they have asserted that they also alleged claims for violations of substantive-due-process rights. The supreme court recognized the uncertainty surrounding the nature of appellants' claims:
The question [of whether appellants alleged a violation of their federal due-process rights] is complicated here by the fact that the precise nature of the right being asserted-procedural due process or substantive due process-is not clear from the decisions below and the parties' briefing and arguments before us.McDeid, 984 N.W.2d at 872 n.3. Respondents urge us not to address the belatedly asserted substantive-due-process claims, relying on Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). But the forfeiture rule of Thiele is not "ironclad." Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002) (quotation omitted); see also Minn. R. Civ. App. P. 103.04 (allowing this court to address issues as justice requires). Here, we conclude that it is appropriate and in the interests of justice to address whether appellants pleaded viable claims under either a procedural- or substantive-due-process theory. See, e.g., State v. Hill, 871 N.W.2d 900, 905 n.4 (Minn. 2015) (considering substantive-due-process argument not raised to district court but briefed by both parties).
After respondents argued waiver in their supplemental memorandum on remand, appellants filed a motion for leave to file a reply memorandum limited to the issue of whether appellants had argued the substantive-due-process claims below. Because we address the substantive-due-process claims in the interests of justice, it is unnecessary for us to consider the reply memorandum, and we therefore deny the motion.
Procedural due process
Appellants assert that they have sufficiently alleged protected liberty and property interests in timely compliance with the CAP transfer orders. We agree.
To assert a viable procedural-due-process claim, a plaintiff must allege facts sufficient to prove that (1) he has been deprived of a protected life, liberty, or property interest (2) without "constitutionally sufficient" procedural protections. Hall v. State, 908 N.W.2d 345, 358 (Minn. 2018). Under United States Supreme Court and Minnesota Supreme Court precedent, this court "must look to the nature of an interest to determine if it is within the scope of the Fourteenth Amendment's protection of liberty and property." Carrillo v. Fabian, 701 N.W.2d 763, 768 (Minn. 2005) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570-71 (1972); Sandin v. Conner, 515 U.S. 472, 484 (1995)).
In the context of incarceration, state-created liberty interests are generally "limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 486; see also Carrillo, 701 N.W.2d at 770-71 (describing evolution of United States Supreme Court analysis of liberty interests and explaining that, under Sandin, it was required to "examine the nature of the deprivation and the extent to which that deprivation departs from the basic conditions of Carrillo's sentence"). If the challenged restraint does not constitute a "dramatic departure" from the basic conditions of the inmate's sentence and does not inevitably lead to an extension of confinement, it may be "too attenuated to invoke the procedural guarantees of the Due Process Clause." Sandin, 515 U.S. at 485, 487.
The parties have not cited to us, and we are not aware of, binding authority addressing the nature of the liberty interests held by individuals who are lawfully committed. See Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006) (stating that United States Supreme Court had not addressed that issue). The Eighth Circuit has recognized that such "liberty interests are considerably less than those held by members of free society" but greater than those of incarcerated individuals. Id. The liberty interests of a committed person "must therefore be understood in the context of [the] commitment and its accompanying restrictions." Id.
Extrapolating from the existing caselaw, we conclude that, in order for appellants to have stated a procedural-due-process claim based on a liberty interest, there must be facts that can be introduced, consistent with appellants' complaint, to demonstrate either that the alleged deprivation constituted a dramatic departure from typical conditions of appellants' commitment or that the alleged deprivation would inevitably lead to an extension of the time appellants would remain committed. See id.; N. States Power Co., 122 N.W.2d at 29 (discussing procedural requirements for a claim to survive a motion to dismiss). We examine the allegations of appellants' complaints to see whether that requirement is met.
Appellants allege that "the MSOP treatment progression is as follows: (1) Phase I, (2) Phase II, (3) Phase III Reintegration, (4) CPS, (5) Provisional Discharge, and (6) Discharge"; that "[i]n order to be provisionally discharged, [they] must progress through all phases of MSOP treatment"; and that respondents' delay in transferring them to CPS "significantly delayed [their] treatment progression and hindered [their] ability to advance in the program toward discharge." We conclude that evidence could be presented, consistent with these allegations, to prove that respondents violated appellants' procedural-due-process rights based on a liberty interest.[
Respondents assert that this allegation is inaccurate because CAP can order and has ordered full discharge of an MSOP resident directly from a secured facility. But at this procedural posture, we are to "consider only the facts alleged in the complaint, accepting those facts as true and must construe all reasonable inferences in favor of the nonmoving party." Bahr v. Capella Univ., 788 N.W.2d 76, 80 (Minn. 2010) (quotation omitted).
Appellants separately allege that "CPS also provides many privileges that do not exist at [the secure facility at] Moose Lake, including, as examples, a facility without razor wire fences; medical trips without physical restraints; access to move about the facility more freely; access to the CPS deck, patio, and yard during the hours of 6:00 a.m. until 10:00 p.m.; ability to garden; and ability to order take-out food." We need not determine whether this allegation independently supports a claim based on a liberty interest, but we note that not all restrictions at a commitment facility implicate liberty interests. See Senty-Haugen, 462 F.3d at 886 n.7 (explaining that deprivation of committed person's access to the canteen, outside vendors, and computer privileges were "de minimis restrictions with which the Constitution is not concerned" (quotation omitted)).
A property interest exists when the law creates a "legitimate claim of entitlement" to a benefit. Washington v. Indep. Sch. Dist. No. 625, 590 N.W.2d 655, 659 (Minn.App. 1999) (citing Perry v. Sindermann, 408 U.S. 593, 602-03 (1972)). We conclude that the allegations in appellants' complaints are also sufficient to state procedural-due-process claims based on a property interest. Specifically, appellants allege that the CAP transfer orders gave them legitimate claims of entitlement to transfer to CPS. And the supreme court has held that appellants had a clearly established right to be transferred within a reasonable time following the transfer orders. McDeid, 984 N.W.2d at 879.
Respondents assert that appellants have not actually pleaded procedural-due-process claims because "they have not [pleaded] or argued that [the] alleged deprivation would have been lawful if accompanied by additional procedure." But appellants have alleged that respondents deprived them of timely transfer to CPS without constitutionally sufficient procedures. They allege that respondents failed to provide notice that there would be a delay in the transfers, of the justifications for the delay, or when transfer could be expected. And they allege that respondents "fail[ed] to provide a meaningful process or procedural protections." We conclude that these allegations are sufficient under Minnesota's notice-pleading standard to support appellants' procedural-due-process claim.
Because evidence could be produced consistent with the complaints to prove violations of appellants' procedural-due-process rights, we reverse the judgments dismissing appellants' complaint and remand for further proceedings on the procedural-due-process claims. In so doing, we take no position on the viability of appellants' claims at summary judgment or trial. We merely conclude that the complaints have alleged claims sufficient to survive a motion to dismiss for failure to state a claim.
Substantive due process
A substantive-due-process claim stems from the principle that the due-process clause "prohibit[s] certain arbitrary, wrongful government actions, regardless of the fairness of the procedures used to implement them." State v. Holloway, 916 N.W.2d 338, 344 (Minn. 2018) (quotation omitted). Different tests apply to substantive-due-process claims depending on whether they challenge legislative or executive action, or put another way, whether they are facial or as-applied challenges. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) ("[C]riteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue."); Karsjens v. Piper, 845 F.3d 394, 407-08 (8th Cir. 2017) (outlining differing standards to be applied to facial versus as-applied substantive-due-process challenges to Minnesota's Civil Commitment and Treatment Act); see also Hill, 871 N.W.2d at 906 (recognizing differing standards under Lewis).
With respect to challenges to executive action, the United States Supreme Court explained in Lewis that
the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.... Only if the necessary condition of egregious behavior were satisfied would there be a possibility of recognizing a substantive due process right to be free of such executive action, and only then might there be a debate about the sufficiency of historical examples of enforcement of the right claimed, or its recognition in other ways.523 U.S. at 847 n.8. The Eighth Circuit has explained that the Supreme Court has thus displaced a "former disjunctive standard" and that plaintiffs asserting as-applied challenges must now "demonstrate both that the state defendants' conduct was conscience-shocking, and that the state defendants violated one or more fundamental rights that are deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Karsjens, 845 F.3d at 408 (quotations and alterations omitted).
Under that "former disjunctive standard," a plaintiff could state a substantive-due-process claim either by identifying a fundamental right to which strict scrutiny would apply or by identifying conscience-shocking conduct. See, e.g., Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998) (recognizing "two different ways of stating a substantive due process claim").
Minnesota Supreme Court precedent "establishes that only the most extreme instances of governmental misconduct can satisfy the exacting shocks-the-conscience standard, with these acts often evincing deliberate and unjustifiable injurious intent." Hill, 871 N.W.2d at 906 (quotation omitted). And the Eighth Circuit has recognized that meeting the conscience-shocking test requires government action that is "truly irrational" and "something more than arbitrary, capricious, or in violation of state law." Draper v. City of Festus, 782 F.3d 948, 953 (8th Cir. 2015) (quotations and alteration omitted); see also Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992) (rejecting argument that violation of state statute supported substantive-due-process claim because appellant had "not alleged that the deprivation of this liberty interest was arbitrary in the constitutional sense").
In light of the more recent caselaw governing substantive-due-process claims based on executive action, we do not find persuasive on this issue the trio of 1993 Eighth Circuit cases on which appellants rely to support their claims. See Hall v. Lombardi, 996 F.2d 954 (8th Cir. 1993); Walters v. Grossheim, 990 F.2d 381 (8th Cir. 1993); Slone v. Herman, 983 F.2d 107 (8th Cir. 1993). In each of these cases, the Eighth Circuit addressed whether the failure to release or transfer an inmate implicated a liberty interest-the first part of the former disjunctive standard. See Hall, 996 F.2d at 958-59; Walters, 990 F.2d at 385; Slone, 983 F.2d at 110. But following Lewis, the threshold issue in cases involving executive conduct is whether the conduct shocks the conscience.
We are mindful that the supreme court cited these cases favorably in determining that appellants had a clearly established right to transfer within a reasonable time. However, the supreme court did not address the present viability of the cases' due-process holdings. See McDeid, 984 N.W.2d at 874, 875, 878, 879.
Appellants rely on a footnote in Hall to argue that the delay in their transfer shocked the conscience. See Hall, 996 F.2d 958 n.4. In the footnote, the Eighth Circuit explained that the extended delay in transferring an inmate, despite repeated approvals, "seems abusive, shocks our conscience, and offends our judicial notions of fairness." Id. But the Eighth Circuit expressly declined to reach the issue of whether "substantive due process provides a right to be free from arbitrary and capricious state action." Id. at 958 (quotation omitted). In the footnote on which appellants rely, the Eighth Circuit reasoned that the conduct alleged would state such a claim if it were recognized. The footnote was not the basis for the Eighth Circuit's decision in Hall and is therefore dicta. Moreover, the Eighth Circuit did not have the benefit of the United States Supreme Court's holding in Lewis when it decided Hall.
We conclude that appellants have not pleaded facts sufficient to state claims for violation of their substantive-due-process rights under the now-controlling conscienceshocking test. Although appellants allege that respondents failed to comply with the CAP transfer orders for an unreasonable period of time, appellants do not allege that they were subject to the kind of extreme treatment that might implicate their substantive-due-process rights. See, e.g., Rochin v. California, 342 U.S. 165, 172 (1952) (reversing conviction on substantive-due-process grounds when police unlawfully broke into defendant's home, forcibly attempted to extract evidence from defendant's mouth, and pumped defendant's stomach against his will); Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1075-77 (11th Cir. 2000) (reversing dismissal of claim under section 1983 for substantive-due-process violation based on allegations that teacher struck student's face with metal weight as punishment, resulting in student's loss of an eye); see also Karsjens, 845 F.3d at 410-11 (explaining that none of "identified actions of the state defendants or arguable shortcomings in the MSOP were egregious, malicious, or sadistic as is necessary to meet the conscience-shocking standard"); Hill, 871 N.W.2d at 906-07 n.6 (discussing cases applying conscience-shocking test). Proceedings on remand should therefore be limited to adjudicating appellants' procedural-due-process claims.
We note that this is not a case involving unlawful detention-appellants do not challenge the basis for their commitment to MSOP, whether at MSOP's secure facility or CPS. On this basis, we find inapposite postLewis cases determining that extended unlawful detention shocks the conscience. See, e.g., Hayes v. Faulkner County, 388 F.3d 669, 675 (8th Cir. 2004) (failing to take pretrial detainee before judge for 38 days shocked the conscience).
Reversed and remanded; motion denied.