Jones v. Herian

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MARVEL JONES, Plaintiff, v. KATHY HERIAN, ET AL., in their individual capacitates only, Defendants.

No. 8:20-CV-365

United States District Court, D. Nebraska

March 30, 2023

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTIONS FOR INJUNCTIVE RELIEF

Brian C. Buescher, United States District Judge

This case was brought pro se by Plaintiff Marvel Jones, a civilly committed sex offender at the Norfolk Regional Center (NRC) in Norfolk, Nebraska. See generally Filing 12. Jones initially sued over 90 individuals for an assortment of constitutional violations. See generally Filing 1; Filing 60 at 3. Seventeen (17) Defendants remain. See Filing 60 at 12; Filing 109 at 1. They are: (1) Kathy Herian, (2) Rosetta McAllister, (3) Dawn Collins, (4) Kris Boe Simmons, (5) Hunter Lewis, (6) Matthew Lewis, (7) Kolten Neuhaus, (8) James Johnson, (9) Tyler Stender, (10) Cameron Liewer, (11) Edgar Olivan, (12) Corey Banks, (13) Stephanie Owens, (14) Don Whitmire, (15) Josh Deiterman, (16) Chris Neuhaus, and (17) Drew English. Filing 60 at 12; Filing 109 at 1. The remaining claims allege an unlawful search, an unlawful seizure, and a violation of procedural due process. The matter now before the Court involves several filings submitted by the parties. The Court will address the matters raised in these filings together in this Order. After considering the parties' submissions, relevant portions of the record, and applicable authority, the Court takes the following actions: (1) Jones's Motion to Compel is denied; (2) Jones's Motion for Restraining Order is denied; and (3) Defendants' Motion for Summary Judgment is granted. Accordingly, this case is terminated.

I. BACKGROUND

A. Factual Background

Jones is presently committed to the NRC pursuant to Nebraska's Sex Offender Commitment Act, Neb. Rev. Stat. §§ 71-1201, et seq. Filing 109 at 10 (¶1). NRC is a 120-bed Sex Offender Treatment Center that administers a Sex Offender Treatment Program. Filing 107-11 at 1 (¶3). “The primary purpose[s] of the Program [are] to reduce the likelihood of additional sexual offenses, avoid creating additional victims, and develop skills for successful community integration.” Filing 107-11 at 1 (¶3). Jones was first committed to NRC in 2018 after serving 21 years in prison following his 1996 conviction for First Degree Sexual Assault of a Child. Filing 106-1 at 2. Although Jones was briefly transferred to a different facility in 2020, he was re-admitted to NRC in late 2020 after he shoved and physically intimidated a peer at the other facility. See Filing 106-5 at 2, 6; Filing 107-11 at 4 (¶9).

1. Background Relevant to Jones's Fourth Amendment Claims

a. The Seizure Claims

Jones alleges that on the day he was re-admitted to NRC, Defendant Kris Boe Simmons told him that she was going to go “through all of [his] property and search it.” Filing 12 at 31 (lowercase typeface substituted). Jones claims that he had 11 boxes of property, and that Simmons directed a number of unnamed individuals to go through his “legal documents, legal mail, personal mail from family members, friend, [and] legal organizations such as the A.C.L.U., the Innocence Project of New York, the Mid-West Innocence Project.” Filing 12 at 31 (lowercase typeface substituted). According to his Amended Complaint, Jones contends that he is “missing certain leagal [sic] document such as case laws [sic], attorney's phone-numbers [sic], United States Codes Constitutions, [and] three (3) copies of [his] treatment schedules list[.]” Filing 12 at 31 (lowercase typeface substituted). Jones further alleges in his Amended Complaint that “they” destroyed some of his personal paperwork such as notes, company addresses, phone numbers, and various catalogs. Filing 12 at 31. In one of his interrogatory answers, Jones similarly averred that on the date that he was re-admitted to NRC, “Defendant Kris Boe Simmons, and the other Defendants conspired together and search[ed] through [his] legal documents, personal letter [sic], missing legal papers, legal notes, reading [sic] legal documents, reading [sic] personal letters from family member [sic], friends, attorneys, taking [sic] personal magazines of Plaintiff.” Filing 107-9 at 2 (lowercase typeface substituted).

According to a property inventory record maintained by NRC, four boxes of “legal papers” were delivered to Jones's “unit” at NRC approximately three days after Jones was re-admitted. See Filing 106 at 2; Filing 106-9 at 2; see also Filing 109 at 12 (¶9). Several books, including a Black's Law Dictionary, an “American Heritage Dictionary, a Bible, and a Prisoner's Self Help Manual, were subsequently sent to Jones's unit approximately 10 days after he arrived back at NRC. See Filing 106 at 2; Filing 106-9 at 2; see also Filing 109 at 12 (¶9). Defendants acknowledge that “upon readmission to NRC . . . it took several days for four boxes of Jones's legal papers to make its way to Jones's living unit[.]” Filing 109 at 18. They also acknowledge there was “delay” caused by “retaining and searching Jones's property for several days upon readmission,” but they contend this delay was “necessary” and did “not violate clearly established law[.]” Filing 109 at 19.

b. The Search Claims

Liberally construed, Jones's Second Amended Complaint also alleged a Fourth Amendment unlawful search claim. See Filing 12 at 17, 31, 34-35. As the Court will explain in more detail below, at this stage in the litigation the only Defendants implicated in this claim are Deiterman and Chris Neuhaus. See Filing 109 at 2; Filing 60 at 12; Filing 63 at 3-6. Both Deiterman and Chris Neuhaus admit that they “have, on various occasions, conducted security searches of Jones's room pursuant to NRC policy.” Filing 109 at 13 (citing Filing 106-10 at 1-4).

“NRC Policy provides, among other things, that random security searches are performed on all patients and their rooms, cubbies, and personal box at least monthly.” Filing 109 at 13 (citing Filing 107-15 at 1-2 and Filing 107-16 at 2 (¶5)).

2. Background Relevant to Jones's Procedural Due Process Claims

Jones's Amended Complaint references three occasions where he was allegedly accused of rule violations implicating his procedural due process rights. See Filing 12 at 18 (¶34). Senior Judge Kopf described Jones's procedural due process claims as follows when he entered his screening order on June 9, 2021:

[Jones] alleges that when he was accused of rule violations in three instances, he did not have the right to address the allegations and evidence against him at a disciplinary hearing, to present witnesses on his behalf, to have legal assistance, to prepare a defense, or to appeal the decisions of the treatment team. [Jones] claims that these accusations have caused an increase in the duration of his confinement, effected his “scoring levels,” and caused privilege suspension without notice.

Filing 13 at 7.

Jones's Amended Complaint describes the first occasion as involving an allegation about “breaking boundaries against another peer for sexual favors[.]” Filing 12 at 18 (¶34) (lowercase typeface substituted). He describes the second occasion as involving an incident at the “unit 3-East bathroom” where he was alleged to have engaged in a “sexual actout” with another peer. Filing 12 at 18 (¶34) (lowercase typeface substituted). He describes the third occasion as involving an allegation that he was too close to two fellow peers. Filing 12 at 18 (¶34). However, when Jones was asked to elaborate on the factual predicates for his due process claims in discovery, he only referenced the latter two incidents. See Filing 107-4 at 5; Filing 107-5 at 1. He made no mention of an allegation about “breaking boundaries against another peer for sexual favors” at that time. See Filing 107-4 at 5; Filing 107-5 at 1; see also Filing 109 at 13 n.6.

Specifically, he said:

(1) Plaintiff were accused [sic] of a Sexual Act Out on 3-East back in 2019 with another peer; (2) Two fellow peers accused Plaintiff of getting to [sic] close to them, Team viewed the video cameras and founded [sic] those allegations were unfound [sic]. The Treatment Team put a 10 Foot Order on me to stay away from the two (2) peers on November 13, 2019. On 13 of November, Plaintiff [sic] duration of confinement has increased here at Norfolk Regional Center. Plaintiff [sic] due process rights to (1) a notice of the charges, (2) hearings: the right to hear and be heard, (3) a right to have witnesses, (4) the right to confrontation and cross-examination of witnesses, (5) the right to documentary and physical evidence, (6) the right to assistance of counsel, (7) a right to a promp [sic] hearing, (8) a right to an impartial decision maker.

Filing 107-5 at 1 (lowercase typeface substituted).

B. Procedural Background

After Senior Judge Kopf screened Jones's case, he concluded that three of his claims could go forward. Filing 13 at 12. Each of these claims were brought under 42 U.S.C. § 1983 and included: (1) a violation of Jones's Fourth Amendment rights; (2) a violation of Jones's substantive due process rights; and (3) a violation of Jones's procedural due process rights. Filing 13 at 12. The applicable Defendants subsequently challenged whether Jones's Fourth Amendment and substantive due process claims stated offenses in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure. Filing 56 at 1; Filing 58 at 1; Filing 60 at 4.

On December 2, 2021, this Court issued a written Order granting the Defendants' Motion to Dismiss Jones's substantive due process claim in full. Filing 60 at 12. That Order also granted the Defendants' Motion to Dismiss Jones's Fourth Amendment claims in part. Filing 60 at 12. The Court dismissed Jones's Fourth Amendment claims...