Greene v. Osborne-Leivian

Guy I. Greene, Plaintiff, v. Tara Osborne-Leivian; Kevin Moser; Paul Mayfield; Courtney Menten; Brian Ninneman;Staci Bovin; Jana Brister-Korby; Paul Schnell; Nancy Johnston; Andrea Long;Jodi Harpstead; Ann Linkert; Nicole Vaneo; Traci Zuk; MSOP Jane Doe Nurse Practitioner;John Doe, Minnesota Department of Corrections-OSI;Brent Schmidt, Minnesota Department of Corrections, Parole Agent;Zach Gahm, Minnesota Department of Corrections, Hearings and Release Officer;Rebecca Holmes-Larson, Minnesota Department of Corrections, Executive;Vicki Janssen, MCF-Rush City Warden; Jessica Olson, MCF-Rush City Health Services Administrator;M. Saari, MCF-Rush City Behavioral Health Supervisor; Dr. Scherer,MCF-Rush City Clinical Staff; Jenna Younkers, MCF-Rush City Clinical Staff;Tom Soles, MCF-Rush City Clinical Staff; Joshua Kendall, MCF-Rush City Case Manager;John Doe, MCF-Rush City Case Manager; John Doe, Parole Agent, Carlton County;John Doe, HRU Officer, sued in their individual and official capacities, Defendants.

File No. 19-cv-533 (ECT/TNL)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

March 12, 2021

OPINION AND ORDER

Guy I. Greene, pro se.

James R. Andreen and Samantha R. Alsadi, Erstad & Riemer, P.A., Minneapolis, MN, for Defendant Brent Schmidt.

Anthony R. Noss, Minnesota Attorney General's Office, St. Paul, MN, for the Moving State Defendants.¹

Pro se Plaintiff Guy I. Greene is civilly committed to the Minnesota Sex Offender Program ("MSOP"). He brought this case under 42 U.S.C. § 1983 against Defendants—employees of MSOP and the Minnesota Department of Corrections and other state and county officials—in their individual and official capacities alleging that they deprived him of his constitutional rights in various ways in connection with his confinement. Greene seeks declaratory and injunctive relief as well as compensatory and punitive damages. Greene's second amended complaint, see ECF No. 16-1, the operative complaint in this case, was screened previously in accordance with 28 U.S.C. § 1915(e)(2)(B), and a number of his claims were dismissed at that time, see May 21, 2020 Order Accepting R&R at 7-8[ECF No. 62]. Defendant Brent Schmidt, a county probation officer, and the remaining State Defendants have filed motions to dismiss Greene's remaining claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), see Schmidt Mot. to Dismiss [ECF No. 55]; State Defs.' Mot. to Dismiss [ECF No. 71], and their motions will be granted.

I²

A

Greene's first set of allegations concern his transfer from MSOP's general population to its Behavioral Therapy Unit ("BTU"). In October 2017, Greene filed a complaint against Defendant Nicole Hawkins with Defendant Tara Osborne-Leivian. Sec. Am. Compl. ¶ 34. A few days after Greene submitted the complaint, Osborne-Leivian "arbitrarily authoriz[ed] an administrative transfer to the [BTU] and filed a disciplinary report," allegedly in retaliation for Greene's complaint. Id. ¶ 35. Greene "did not receive advance notice of any rule violations" or "a written statement by the disciplinary committee" and "was not afforded a right to call witnesses in regards to his arbitrary placement." Id. ¶ 36. According to Greene, Osborne-Leivian used a "minor disciplinary offense" as a reason to "punitively detain him for long periods of time in the BTU." Id. Greene was later informed that he had violated MSOP's rules and a disciplinary hearingwas held. See id. ¶ 37. Osborne-Leivian "sat at the disciplinary hearing as a judge when she was also the author of the disciplinary report." Id. "After the disciplinary panel found [Greene] guilty of rule infractions, [he] was forced to be punitively detained in the BTU [] without a clinical discharge plan." Id. ¶ 38.

Greene subsequently requested a meeting with Osborne-Leivian regarding his placement in the BTU. Id. ¶ 41. At the meeting, Greene "apologized about the nature and content of the complaint" he filed against Hawkins. Id. ¶ 42. According to Greene, Osborne-Leivian "started playing the victim role and asked [Greene] 'why me.'" Id. ¶ 43. Greene "explained that she was [Hawkins's] supervisor" and was "responsible for her training and misconduct." Id. Osborne-Leivian then "became very loud and belligerent" and told Greene that he would spend further time in the BTU if he pursued litigation against MSOP. Id. ¶ 44. Greene alleges that, after his transfer to the BTU, Osborne-Leivian, Hawkins, and Defendants Nancy Johnston, Kevin Moser, Jana Brister-Korby, Stacy Bovin, and Paul Mayfield "remain[ed] deliberate[ly] indifferent to [his] punitive mistreatment, punitive isolation, and denial of minimal training . . . for over [the] last two years and did nothing to intervene." Id. ¶ 45; see id. ¶ 68.

B

Greene's next set of allegations pertain to the revocation of his supervised release in a prior criminal case, resulting in his transfer from MSOP to a state correctional facility in Rush City, Minnesota ("MCF-Rush City"). Greene alleges that, after he was placed in the BTU, he was seen by Dr. Kendi Mustafa, who "prescribed [an] order for care, treatment and [a] written plan for the lawful transition off the behavioral unit into the conventionalMSOP treatment units." Id. ¶ 49. According to Greene, despite being "on notice" to create a plan to discharge him from the BTU, "MSOP Defendants and parole agents were laying in the weeds to trump up a parole violation." Id. ¶ 51. Greene alleges that "[a]ll parole violation charges were filed without notice or due process of law." Id.

Greene references two "parole violations" in his complaint. Id. ¶ 52. Greene's supervised release was first revoked on June 26, 2018, for 90 days "following violations of failing to refrain from use o[r] possession of intoxicants/drug paraphernalia, specifically alcohol[,] and failure to comply with sex offender programming as established by the clinical director of MSOP." Schmidt Aff., Ex. 2 at 3 [ECF No. 58-2].³ Greene alleges thatDefendant John Doe, a Carlton County Parole Agent ("Carlton County Doe"), "did not communicate any parole plan" or "inform[] [him] of his rights in the parole plan" and that Defendant HRU Doe, an officer in the Hearings and Release Unit, found him guilty of violating "a parole plan that did not exist." Sec. Am. Compl. ¶ 53.

Greene was released back to MSOP from MCF-Rush City on September 24, 2018. Schmidt Aff., Ex. 2 at 3. On the day of his release, Greene signed a form listing the general and special conditions of his release to MSOP but added a handwritten notation stating, "I agree to no treatment." Id., Ex. 1 at 2. Defendant Brent Schmidt, a Sherburne County probation officer assigned to Greene's case, also signed the form. Id. Greene alleges that his right to due process was violated because he was not given notice that his case was reassigned to Schmidt and that Schmidt "never concerned himself with his job to communicate with [Greene] about the conditions of his parole, treatment concerns or public safety." Sec. Am. Compl. ¶ 63.

On April 9, 2019, Schmidt filed a report that charged Greene with three new supervised release violations and recommended revocation. Schmidt Aff., Ex. 2. Greene alleges that Brister-Korby, Bovin, Hawkins, Mayfield, and Defendants Courtney Menten and OSI Doe, "trumped up false reports and treatment reports," resulting in charges that heviolated the terms of his supervised release by "asking other clients at MSOP to pursue their civil rights in federal district court, . . . not participat[ing] 100 percent in treatment, allegedly threaten[ing] staff and contacting a vulnerable adult." Sec. Am. Compl. ¶¶ 51-52, 55-57; see Schmidt Aff., Ex. 2 at 2-3. Greene further alleges that Menten "acted out of her scope of employment by taking malicious steps to write a personal letter to prison authorities . . . based on hearsay comments made during [his] mental health meetings with . . . Bovin" and that Menten "conspired with [Bovin] to create a way to cause a parole violation rather than concern themselves with [his] treatment and rehabilitation[.]" Sec. Am. Compl. ¶¶ 64-65.

A revocation hearing was held before the Hearings and Release Unit ("HRU") of the Minnesota Department of Corrections on April 16, 2019. Schmidt Aff., Ex. 3; see id., Ex. 4. Greene was represented by counsel. Id., Ex. 3 at 1, 4. According to Greene, his parole agents from Carlton County and Sherburne County and OSI Doe "never concerned themselves" with his parole, his behavior, or his treatment "until the time of the parole hearing to punish him." Sec. Am. Compl. ¶¶ 54-57. Schmidt and Bovin testified at the hearing. See Schmidt Aff., Ex. 3 at 2. Greene alleges that Defendant Zach Gahm, the hearing officer, "did not allow [him] to receive notice of violating facility rules[] and the parole plan" but nonetheless found him guilty of the alleged violations at the hearing. Sec. Am. Compl. ¶¶ 54-57; see Schmidt Aff., Ex. 3 at 6. The HRU revoked Greene's supervised release and Greene was returned to MCF-Rush City for 365 days. Schmidt Aff., Ex. 3 at 1. Greene alleges that Defendants "worked in direct concert to deprive [him of] his civil right to liberty and due process of law by maliciously and callously taking away ayear [of his life] to be punitively detained . . . without treatment" at MCF-Rush City. Sec. Am. Compl. ¶ 60; see id. ¶ 62.

Greene attempted to appeal the HRU's decision to Defendant Rebecca Holmes-Larson, "the Executive Hearings and Release officer," but did not receive a response. Id. ¶ 58. Greene also asked Holmes-Larson "to amend the sex offender treatment special conditions because he is not incarcerated for a sex crime and . . . MSOP was using the treatment scheme to trump up parole violations for not participating 100 percent." Id. ¶ 59.⁴

C

Greene's third set of allegations concern a failure to protect him and deliberate indifference to his mental health during his imprisonment at MCF-Rush City. Greene alleges generally that Defendants did not "concern...