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Ireland v. Anderson

United States District Court, D. North Dakota

September 9, 2015

Rodney J. Ireland, Lester McGillis, Gerald DeCoteau, William Carter, Ryan Corman, Matthew Graham, Terry Greak, Glenn Halton, Robert Hoff, Monte Hojian, Jeremy Johnson, Michael Kruk, Garrett Loy, Kevette Moore, Cruz Muscha, Darin Napier, Paul Oie, Timothy Olpin, Larry Rubey, Christopher Simon, Kelly Tanner John Westlie, Robert Lilley, Darl Hehn, Oliver Wardlow, Joshua Keeping, Matthew Dyer, Travis Wedmore, Kyle Aune, Marcus Bartole, Jason Gores, Estel Naser, Andrew Olafson, Stanton Quilt, Raymond Voisine, Eugene Wegley, David Anderson, Eugene Fluge, Robert Beauchamp, and Sandy Mangelsen, Plaintiffs,
v.
Maggie D. Anderson, Executive Director, North Dakota Department of Human Services, in her individual and official capacity, Alex Schweitzer, in his individual capacity, Leann Bertsch, Director, North Dakota Department of Corrections and Rehabilitation, in her individual and official capacity, State of North Dakota, North Dakota Department of Human Services, North Dakota Department of Corrections and Rehabilitation, North Dakota State Hospital, and Dr. Rosalie Etherington, Superintendent of the North Dakota State Hospital, in her official capacity, Defendants.

SUPPLEMENTAL REPORT AND RECOMMENDATION

ALICE R. SENECHAL, Magistrate Judge.

On July 15, 2015, this court issued a Report and Recommendation (hereinafter "R&R"), (Doc. #191), recommending that the following claims made in the Third Amended Complaint be dismissed: claims involving plaintiffs who are not currently civilly committed, claims against the Department of Corrections and Rehabilitation (DOCR) and its director, claims against state officials in their personal capacities, and claims alleged under the Americans with Disabilities Act. The July 15, 2015 R&R recommended against dismissal in all other respects.

Subsequently, the parties stipulated to the filing of a Fourth Amended Complaint, with the provision that defendants' answer to the Third Amended Complaint would be considered their answer to the Fourth Amended Complaint. (Doc. #195). Plaintiffs then moved for leave to file a Fifth Amended Complaint. (Doc. #196). Defendants did not oppose that motion, but requested that if the motion were granted, their answer to the Third Amended Complaint then be considered their answer to the Fifth Amended Complaint, and that their pending motions to dismiss then be considered to apply to the Fifth Amended Complaint. The court granted leave to file the Fifth Amended Complaint, and advised the parties that, in light of that amended complaint having been filed, the court would consider whether to issue a Supplemental Report and Recommendation. (Doc. #200). The court gave the parties an opportunity to submit supplemental briefing prior to issuance of this Supplemental Report and Recommendation. Plaintiffs submitted a supplemental brief, (Doc. #214), which largely duplicates their objections to the July 15, 2015 R&R, (Doc. #197).

Relevant facts and a more extensive procedural history were part of the earlier R&R, and so are not repeated here.

Summary of Supplemental Report and Recommendation

Now considering defendants' motions to dismiss in light of the Fifth Amended Complaint, this court revises its earlier recommendation. This court now recommends dismissal of claims involving plaintiffs who are not currently civilly committed and claims against state officials in their personal capacities, but the court recommends that the motions to dismiss be denied in all other respects.

Law and Discussion

Defendants moved to dismiss certain claims pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting failure to state a claim. A motion under Rule 12(b)(6) tests the legal sufficiency of a complaint. To withstand a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). "[A] formulaic recitation of the elements of a cause of action will not do." Id. at 555. A court must determine whether the facts in a complaint "plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S.662, 679 (2009). In ruling on a Rule 12(b)(6) motion, the court accepts factual allegations in the complaint as true and construes the pleading in the light most favorable to the non-moving party. The complaint must give a defendant fair notice of the claim. Twombly, 550 U.S. at 555.

1. Claims of Plaintiffs Who Are Not Currently Civilly Committed As SDI's

Eight of the named plaintiffs are not currently civilly committed, and the July 15, 2015 R&R recommended that the claims of those eight plaintiffs be dismissed as moot. Plaintiffs' supplemental brief asks this court to reconsider that recommendation, though the Fifth Amended Complaint made no changes specific to that group of plaintiffs. Though plaintiffs made no revisions to the complaint specific to this group, their supplemental brief includes authority not cited in their earlier briefs.

In their supplemental brief, plaintiffs contend that the earlier R&R construed their claims too narrowly, not sufficiently considering that they "challenge the State's entire [sexually dangerous individual (SDI)] system - from [Department of Corrections and Rehabilitation (DOCR)] referral to post-commitment detriments - based on violations of their federal constitutional and statutory rights." (Doc. #214, p. 2). They assert that SDI's who are discharged from Department of Human Services (DHS) custody remain subject to negative consequences flowing from the state's SDI system. The potential negative consequences which plaintiffs identify are monetary claims for cost of treatment under North Dakota Century Code section 25-03.3-21, continued social stigma because of having been determined to be an SDI, and the potential that they could be civilly committed as SDI's again in the future. Id. at 3-6. Plaintiffs further contend that their claims are capable of repetition that evades review, since defendants could moot their claims by discharging them. Id. at 7.

Plaintiffs contend that the earlier R&R improperly credited defendants' statement that the state had not actually sought to collect payment from any plaintiff. (Doc. #214, p. 4). The complaint includes no claim that the state has actually sought to collect payment from any plaintiff; it refers to some plaintiffs having received bills, and to the statute which allows a demand for payment. (Doc. #201, pp. 39, 53). The court has reviewed that portion of the earlier R&R which plaintiffs cite. (Doc. #191, p. 13). Since the current complaint makes no changes with regard to the state attempting to collect payments, the court's earlier recommendation will not be changed.

Citing Spencer v. Kemna, 523 U.S. 1, 7 (1998), plaintiffs contend that their situation is analogous to that of a person who has completed a criminal sentence being allowed to proceed with a habeas petition because of ongoing collateral consequences of the criminal conviction. Spencer held that collateral consequences of a revocation of parole could not be presumed, but must be proved to proceed with a habeas petition. The Spencer court upheld dismissal of the habeas petition as moot, since the revocation of parole sentence had been completed, and the collateral consequences which the petitioner had asserted were not "concrete injuries-in-fact" of a kind sufficient to satisfy the requirements of Article III. Id. at 14. See also Maleng v. Cook, 490 U.S. 488, 492 (holding that a person whose sentence has fully expired is not "in custody" for purposes of a federal habeas petition merely because of the possibility that the prior conviction could be used to enhance a sentence imposed for any subsequent conviction); Maxwell v. Larkins, No. 4:08-CV-1896, 2010 WL 268033, at *3 (E.D. Mo. July 1, 2010) (finding that the possibility of civil commitment as a sexual offender does not satisfy "in custody" requirement to proceed with a federal habeas petition). The potential negative consequences which plaintiffs assert, like those asserted in Spencer, Maleng, and Maxwell, are not sufficient to satisfy the injury-in-fact requirements of Article III.

The Fifth Amended Complaint, like the prior complaints, states that plaintiffs do not seek review of their individual state commitment orders, and that they seek prospective relief only. (Doc. #210, p. 6). The current complaint does not describe the relief which plaintiffs who are not currently civilly committed might request in any further detail than had the previous complaints. This court's earlier recommendation for dismissal of claims of those ...


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