United States District Court, D. North Dakota, Southeastern Division
Rodney J. Ireland, et al., Plaintiffs,
Maggie D. Anderson, Executive Director, North Dakota Department of Human Services, et al., Defendants.
ORDER ADOPTING, IN PART, REPORT & RECOMMENDATION
Ralph R. Erickson,
I. Procedural Background
On July 15, 2015, the court received a Report and Recommendation from the Honorable Alice R. Senechal, United States Magistrate Judge, pursuant to 28 U.S.C. § 636, recommending against dismissal of claims on res judicata grounds, but recommending dismissal of the following claims: 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 plaintiffs filed objections to the Report and Recommendation. In particular, plaintiffs contend that the proposed class members who have been discharged from the Sex Offender Treatment and Evaluation Program and the North Dakota State Hospital (“NDSH”) should not be dismissed because they, as persons determined to be a “Sexually Dangerous Individual” (“SDI”) are subject to, by statute, a monetary claim seeking reimbursement of expenses for up to six years by the Department of Human Services. The plaintiffs further contend that the statutory regime subjects SDIs to treatment different than other persons, including prison inmates and those civilly committed for treatment, and that the threat that the statute may be enforced is sufficient to show injury-in-fact for purposes of standing and a mootness analysis.
The plaintiffs also objected to the portion of the Report and Recommendation that recommended dismissal of Leann Bertsch and the DOCR on the grounds that the magistrate judge erred in narrowly construing the due process claims, and the allegations as contained in the complaint are sufficient to state a claim upon which relief may be granted.
Lastly, plaintiffs objected to the dismissal of the Americans with Disability Act claims, asserting they have satisfied notice pleading, the allegations are sufficient to state a claim for relief, and the defendants are in control of the information necessary to support their claims.
Approximately a week after the Report and Recommendation was filed, the parties stipulated to the filing of a fourth amended complaint. A couple days later, plaintiffs moved to file a fifth amended complaint and filed objections to the Report and Recommendation. The court authorized the filing of the fifth amended complaint, which is the most current version before the court for consideration.
On September 9, 2015, the court received a Supplemental Report and Recommendation from the Honorable Alice R. Senechal, United States Magistrate Judge, pursuant to 28 U.S.C. § 636, recommending dismissal of the claims in the fifth amended complaint involving plaintiffs who are not currently civilly committed as well as the claims against state officials in their personal capacities. The magistrate judge recommended denying the defendants’ motion to dismiss as to all other issues. Both parties filed objections to the Supplemental Report and Recommendation. The court has carefully considered the complaint, the record, the magistrate judge’s Reports and Recommendations, as well as all objections, and now issues this decision.
1.Plaintiffs Who Are Not Currently Civilly Committed as SDIs
Eight of the named plaintiffs are not currently civilly committed. The magistrate judge recommended dismissal of these claims on the ground that they are moot. The plaintiffs respond that dismissal is improper because the negative consequences stemming from the designation of an SDI are sufficient to allege injury-in-fact and thus a live controversy exists. The alleged negative consequences include “ongoing social stigma” as well as the Department of Health Services’ statutory right to demand payment for expenses relating to the plaintiffs’ commitment.
The plaintiffs’ claim regarding “ongoing social stigma” necessarily arises from a judicial determination that the individual meets the criteria for a SDI. The judicial commitment orders are not subject to review in this action. Moreover, in order to be released, there must have been a judicial determination that the individual is no longer deemed a SDI. The court is not persuaded that the plaintiffs who are not currently civilly committed have standing to sue because of alleged ongoing social stigma.
In contrast, N.D. Cent. Code § 25-03.3-21 provides for the recovery of expended sums or provided services for the committed individual for up to six years after the department paid the expense. The plaintiffs assert that some SDIs have made payments for expenses incurred while at the NDSH. The plaintiffs further assert that SDIs who have been released receive (and continue to receive) dunning letters. The letter is in the form of an invoice from the NDSH that includes the amount owed and indicates in capital letters that the account will be sent to a collection agency. The demand for payment and potential collection proceedings arise because of their designation as a SDI. The court finds that the demand for payment, arising under N.D. Cent. Code § 25-03.3-21, in the form of a dunning letter constitutes a continuing injury for which the proposed class members have standing to seek injunctive ...