Benson v. Piper, Case No. 17-cv-266 (DWF/TNL)

Michael D. Benson, Plaintiff, v. Emily Johnson Piper, Comm. Of the Dept. of Human Services, et al., Defendants.

Case No. 17-cv-266 (DWF/TNL)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

July 29, 2020

*FILED UNDER SEAL*

REPORT & RECOMMENDATION

Michael D. Benson, MSOP, 1111 Highway 73, Moose Lake, MN 55767 (pro se Plaintiff); and

Ralph John Detrick, Assistant Attorney General, Minnesota Attorney General's Office, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101 (for Defendants).

I. INTRODUCTION

This matter is before the Court on Defendants' Motion for Summary Judgment, ECF No. 95. This motion has been referred to the undersigned for a report and recommendation to the Honorable Donovan W. Frank, United States District Judge for the District of Minnesota, pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons set forth below, the undersigned recommends that Defendants' motion be granted, and this matter be dismissed with prejudice.

II. PROCEDURAL HISTORY

Michael D. Benson is involuntarily committed to the Minnesota Sex Offender Program ("MSOP"). Benson brought this action against officers and employees of the Minnesota Department of Human Services pursuant to 42 U.S.C. § 1983, asserting numerous violations of his civil rights. See generally Compl., ECF No. 1. Following dispositive motion practice, these claims remain against certain defendants in their individual capacities: retaliation against Defendants Wendy McGowan and Andrea Kosloski (Count I); unreasonable unclothed visual body searches on December 6 and 7, 2016, against Defendants Elizabeth Wyatt, Julianna Beavens, Brennan Shorter, and Ron Fischer¹ (Counts IV and V); procedural due process relating Benson's placement in MSOP's High Security Area ("HSA") on December 6 and 7 against Wyatt, Beavens, Fischer, and Shorter and Defendants Scott Gianinni, Nate Johnson, Sam Brindamor, Lori Aldrin, Bruce Lind, Mike Goeglein, Jana Korby, Kathryn Schesso, Travis Cowell, and Jenny Collelo (Count VIII);² and supervisory claims against Kosloski in connection with Count I and Kosloski and Defendants Emily Johnson Piper, Shelby Richardson, Kevin Moser, Terry Kneisel, Steve Sadjak, and Scott Benoit in connection with Count VIII. Benson IV, 2019 WL 1307883, at *10.

III. FACTS

Benson was civilly committed to MSOP in 1993 and resides at MSOP's Moose Lake facility. Benson Dep. 10:2-3, 15-17, 11:21-12:6, Ex. A to Decl. of R.J. Detrick, ECF No. 105-1. MSOP's Moose Lake facility is a secure treatment facility.

The thrust of this lawsuit is that Defendants retaliated against Benson in various ways for filing Benson v. Fischer, No. 16-cv-509 (DWF/TNL) ("ID Lawsuit"), a separate action challenging the identification badges MSOP requires its clients to wear. Benson III, 2019 WL 2017319, at *1. The ID Lawsuit was filed in 2016 and served towards the end of June 2016. See generally Compl., ECF No. 1, Am. Compl., ECF No. 5, Summons Returned Executed, ECF No. 10, in No. 16-cv-509 (DWF/TNL). The events at issue in this lawsuit took place in June and December 2016.

A. June 26, 2016 Incident

In June 2016, McGowan was employed as a security counselor at MSOP's Moose Lake facility. Decl. of Wendy McGowan ¶ 1, ECF No. 118. McGowan is a defendant in the ID Lawsuit. McGowan Decl. ¶ 4. On June 26, McGowan was assigned to work on Benson's living unit. McGowan Decl. ¶ 2; Benson Dep. 15:19-21.

McGowan did not typically work on Benson's unit. Benson Dep. 15:22-23; see also Dep. of Joel Brown 16:3-9, Ex. C to Detrick Decl., ECF No. 105-1; Dep. of Larry Shultz 13:1-3, Ex. D to Detrick Decl., ECF No. 105-1; Dep. of Jason Hayzlett 14:6-10, Ex. N to Detrick Decl., ECF No. 105-1. At the time, McGowan floated between different areas of the facility based on staffing needs. McGowan Decl. ¶ 2; Schultz Dep. 13:1-14; see Brown Dep. 16:3-18; Dep. of Ryan J. Mely 11:21-12:4, Ex. E to Detrick Decl., ECFNo. 105-1; Dep. of Joseph Hajek 11:18-12:9, Ex. G to Detrick Decl., ECF No. 105-1. Benson had previously had interactions with McGowan that were not positive, and he generally tried to avoid her. Benson Dep. 15:24-16:3, 19:1-19.

Kosloski was the director of Benson's living unit at the time and supervised McGowan. Decl. of Andrea Kosloski ¶ 1, ECF No. 113; Benson Dep. 16:13-15; 46:7-12. Kosloski is also a defendant in the ID Lawsuit. Kosloski Decl. ¶ 6. Benson believes it was Kosloski who assigned McGowan to work on the unit that day but admits this is "speculation." Benson Dep. 46:22-47:13. Kosloski "had no role in assigning . . . McGowan to work on [Benson's] unit . . . on June 26" and does not know how the assignment was made. Kosloski Decl. ¶ 2.

1. Benson's Account

MSOP has a rule that clients cannot be in one another's rooms. Benson Dep. 25:13-16; Schultz Dep. 13:22-14:3. On June 26, Benson was standing outside the room of another client, talking with him. Benson Dep. 24:22-25, 28:20-29:1; Schultz Dep. 13:22-14:4; Dep. of Michael Whipple 16:3-10, 19-24, 17:24-18:7, 19:22-23, Ex. H to Detrick Decl., ECF No. 105-1; Dep. of Rodger Robb 34:1-6, Ex. K to Detrick Decl., ECF No. 105-1. McGowan saw them talking and beelined in their direction, nearly knocking another client over. Benson Dep. 25:1-6; see Robb Dep. 34:7-11. Standing closely to Benson, McGowan told him that he needed to get out of the client's room. Benson Dep. 25:6-11; see Whipple Dep. 16:8-10, 18:24-19:2. Benson responded that he was not in the client's room and McGowan needed to back up. Benson Dep. 25:8-11.

McGowan became "enraged," telling Benson things like "who in the hell do you think you are," "we'll make your life hell," and "I'll give you something to sue about." Benson Dep. 25:11-12, 17-26:7, 18:6-13; see Benson Dep. 30:11-19. McGowan's face was "purple," "she was shaking," and she assumed a stance "almost like a chest bump or something like that, like she wanted to fight." Benson Dep. 25:24-26:12. A couple of times, McGowan came very close to touching Benson. Benson Dep. 26:13-14.

McGowan initiated the Incident Command System and members of a security team known as the "A-team" responded. Benson Dep. 26:17-27:1. Benson yelled to other MSOP staff members, trying to alert them of the situation. Benson Dep. 26:17-21. Benson held his hand out to stop McGowan from coming closer. Benson Dep. 26:21-24. Meanwhile, another client was calling McGowan derogatory names. Benson Dep. 29:7-16.

When the A-team arrived, they tried to get McGowan to step away and come to the staff desk, but she refused. Benson Dep. 26:25-27:5. Benson told McGowan to "quit cycling" and go to the staff desk. Benson Dep. 27:6-12. Benson subsequently went back up to his room. Benson Dep. 27:20-28:6, 29:2-6. Benson told one of the security counselors with the A-team that "he [wa]s being targeted by . . . McGowan and that other staff along with supervisors already knew about this." Incident Report 2016016987 at 1 [hereinafter IR 16987], Ex. A to Decl. of Anita Moonen, ECF No. 121-1.

Other clients witnessed McGowan confront Benson and their accounts largely corroborate Benson's, including that: (1) Benson was not in another client's room; (2) McGowan was rather combative towards Benson; (3) Benson did not use profanity or callMcGowan derogatory names; (4) McGowan remained where she was when MSOP staff members asked her to step away; and (5) other clients were calling McGowan derogatory names. See, e.g., Benson Ex. A at A-2, ECF No. 136; Decl. of Rodger Robb, Benson Ex. B, ECF No. 136; Decl. of Larry Schultz, Benson Ex. C, ECF No. 136; Decl. of Jason Hayzlett, Benson Ex. D, ECF No. 136; Decl. of Michael Whipple, Benson Ex. E, ECF No. 136; Decl. of Geno Diego, Benson Ex. F, ECF No. 136; Decl. of Shawn Jamison, Benson Ex. G, ECF No. 136; Decl. of Dennis White, Benson Ex. H, ECF No. 136; Decl. of Joseph Hajek, Benson Ex. I, ECF No. 136; Decl. of Michael Tibbetts, Benson Ex. K, ECF No. 136; Decl. of Joel Brown, Benson Ex. L, ECF No. 136; Decl. of Brandon Keating, Benson Ex. M, ECF No. 136; Decl. of Scott Crampton, Benson Ex. N, ECF No. 136; see also Decl. of Arthur Karow, Benson Ex. J, ECF No. 136; see generally Dep. of Geno Diego, Ex. B to Detrick Decl., ECF No. 105-1; Brown Dep.; Schultz Dep.; Dep. of Dennis White, Ex. F to Detrick Decl., ECF No. 105-1; Hajek Dep.; Whipple Dep.; Dep. of Michael Tibbetts, Ex. J to Detrick Decl., ECF No. 105-1; Robb Dep.; Hayzlett Dep. The client with whom Benson had been talking heard McGowan tell Benson: "'I'll give you something to sue about.'" Whipple Decl. ¶ 10; Whipple Dep. 19:3-5, 9-10, 14-15, 30:2-15. Another client admitted he was the one that called McGowan derogatory names. Hajek Decl. ¶¶ 6-7; Hajek Dep. 18:19-25, 21:9-15, 29:5-25; see Robb Dep. 48:20-50:5, 66:19-67:3.

Benson testified that the incident with McGowan "steeled [his] resolve" and he was determined to pursue the ID Lawsuit. Benson Dep. 41:20-24. Benson also admittedduring his deposition that this was his "last interaction with [McGowan]." Benson Dep. 45:20-46:2.

2. McGowan's Account

McGowan wrote an incident report describing her interaction with Benson on June 26. See McGowan Decl. ¶ 3; see generally Incident Report 2016016971 [hereinafter IR 16971], Ex. A to Moonen Decl. According to McGowan, she "observed . . . Benson standing inside the doorway" of a client's room, talking with the client. IR 16971 at 1. McGowan asked Benson to step back. IR 16971 at 1. Benson stepped out of the doorway, loudly began to call McGowan derogatory names, and took "an aggressive stance." IR 16971 at 1; see Incident Reports 2016016979 at 1 [hereinafter IR 16979], 2016016988 at 1 [hereinafter IR 16988], Ex. A to Moonen Decl. McGowan "attempted to de-escalate the situation by asking . . . Benson to calm down," but he continued to call her names "us[ing] a louder tone of voice." IR 16971 at 1; see IR 16979 at 1; IR 16988 at 1.

McGowan "initiated an Incident Command System for a client out of behavioral control," and the A-team responded. IR 16971 at 1-2; IR 16979 at 1; IR 16987 at 1; IR...