Corman v. Sullivan et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Ryan R. Corman, 	)
)
Plaintiff, 	)
) 	Case No. 3:14-cv-32
v. 	)
) REPORT AND RECOMMENDATION
Lynne Sullivan, North Dakota State 	) 	AND ORDER
Hospital ‘Evaluator,’ 	)
)
Defendant. 	)
Plaintiff Ryan R. Corman, proceeding pro se and in forma paupris, asserted
claims under 42 U.S.C. § 1983 related to testimony at a hearing to civilly commit him as
a sexually dangerous individual (SDI). After an initial review of Corman’s claims
pursuant to 28 U.S.C. § 1915(e)(2), the court dismissed all claims except one regarding
defendant Lynne Sullivan’s use of allegedly discredited actuarial risk assessment tools. 1
(Doc. 15; Doc. 18). Additionally, the court deferred ruling on Corman’s motion for court-
appointed counsel. (Doc. 17; Doc. 19).
Corman’s claim alleges Sullivan, the State of North Dakota’s psychological
evaluator, relied on discredited actuarial risk assessment tools to influence the state
court to civilly commit him as an SDI. (Doc. 6, p. 1; Doc. 9, p. 4). Corman asserts
Sullivan’s testimony, which relied on the actuarial risk assessment tools, resulted in “a
false sense of risk, danger, and urgency . . . influencing the state court to declare [him]
an SDI.” (Doc. 9, p. 4) (internal quotation marks omitted). Corman requests monetary
damages for lost property, educational opportunities, and wages; denial of rights; and
1 Corman’s complaint was dismissed as to Sullivan in her official capacity. (Doc.
15; Doc. 18).
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“forced unnecessary/unwanted ‘treatment.’” 2 Id. at 6. He also requests punitive
damages.
The claim was stayed, without consideration of its merits, because the court
determined it might be related to claims in another case in which Corman is a plaintiff.
(Doc. 18). That case, Ireland v. Jones, No. 3:13-cv-3, has since been certified as a class
action for injunctive and declaratory relief. Subsequent to class certification in the
Ireland case, the Eighth Circuit Court of Appeals decided a case involving Minnesota’s
sex offender treatment program, Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2018). On
remand, the district court held civilly committed sex offenders had no due process right
to appropriate, effective, or reasonable treatment of the illness or disability that
triggered their civil commitment, Karsjens v. Piper, 336 F. Supp. 3d 974 (D. Minn.
2018). Following the Karsjens decisions, a January 15, 2019 order dismissed substantive
due process and procedural due process claims in the Ireland case.
On March 9, 2020, the court ordered Corman to show cause why the stayed claim
in this case (and stayed claims in another case in which Corman is a plaintiff, Corman v.
Schweitzer, No. 3:12-cv-107), should not be dismissed in light of the Karsjens and
Ireland decisions discussed above and in light of a decision in another case in which
Corman was a plaintiff, Corman v. Schweitzer, No. 3:14-cv-33.3 (Doc. 22). Corman has
not responded to the order to show cause and his time to do so has ended. The court
2 Corman’s requests for a criminal investigation and prosecution were dismissed.
(Doc. 15; Doc. 18).
3 Case No. 3:14-cv-33 is not relevant to this case.
2
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concludes continuation of the stay is no longer warranted and therefore proceeds to its
initial review.
Law and Discussion
Under 28 U.S.C. § 1915(e)(2), the court may sua sponte review an in forma
pauperis complaint before service on defendants. If the court determines the action is
frivolous, malicious, fails to state a claim, or seeks monetary relief against a defendant
immune from such relief, the court must dismiss the complaint. To state a cognizable
claim, a complaint must meet the requirements of Federal Rule of Civil Procedure
8(a)(2), as interpreted by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft
v. Iqbal, 556 U.S. 662 (2009), and their progeny. To meet the Twombly/ Iqbal standard,
a complaint must present a “plausible” claim and must give the defendants fair notice of
the claim and grounds upon which it rests. E.g., Zink v. Lombardi, 783 F.3d 1089, 1098
(8th Cir. 2015). When the factual content of a complaint allows the court reasonably to
infer that a defendant is liable for the alleged misconduct, the complaint has stated a
facially plausible claim. Iqbal, 556 U.S. at 678. In other words, the complaint must
“possess enough heft to ‘sho[w] that the pleader is entitled to relief.’” Twombly, 550 U.S.
at 557 (citing Fed. R. Civ. P. 8(a)(2)).
While facts alleged in the complaint are to be accepted as true, conclusory
allegations of the elements of a cause of action are insufficient to state a claim that is
plausible on its face. Id. In construing a pro se complaint, a court is to take a liberal
approach and is to hold a pro se litigant to a less stringent pleading standard than would
be required of attorneys. Erickson v. Pardus, 551 U.S. 89, 93 (2007).
3
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As stated in Ireland and Karsjens, there is no constitutional right to effective sex
offender treatment:
Karsjens established that committed individuals do not have a
federally recognized due process right to appropriate or effective or
reasonable treatment of the illness or disability that triggered the patient’s
involuntary confinement. See Karsjens 845 F.3d at 410; see also, Van Orden
v. Stringer, 262 F. Supp. 3d 887, 893 (E.D. Mo. July 6, 2017) (finding claims
substantially similar to the one alleged here do not implicate a fundamental
liberty interest); Karsjens v. Piper, 2018 WL 4039364, *6 (D. Minn. Aug. 23,
2018) (finding that committed persons do not have a recognized due process
right 	to 	treatment 	of 	illness 	that 	triggered 	the 	person’s 	involuntary
confinement). 	Eighth 	Circuit 	case 	law 	clearly 	establishes 	that 	civilly
committed sex offenders do not have a fundamental liberty interest or right
to treatment recognized under federal law.
Ireland, No. 3:13-cv-3, Doc. 669, p. 15 (D.N.D. Jan. 15, 2019). To the extent Corman’s
stayed claim asserts a due process violation, it is not plausible in light of the Ireland and
Karsjens decisions and should be dismissed.
Ultimately, Corman’s claim challenges Sullivan’s testimony about the actuarial
risk assessment tools and her assessment of Corman using those tools. Witnesses at
judicial proceedings, including government employees, are immune from suits for
monetary damages based on their testimony during judicial proceedings. Briscoe v.
LaHue, 460 U.S. 325 (1983). Because of that immunity, Corman has not stated any
plausible claim that would entitle him to the relief he seeks.
Corman also requested court-appointed counsel, stating his claim was complex,
appointment of counsel would benefit him and the court, and he was unable to retain
counsel. (Doc. 17). Indigent civil litigants have no statutory or constitutional right to
court-appointed counsel. Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996). The court has
broad discretion in deciding whether to appoint counsel. Id. Several factors are relevant
4
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in determining whether an indigent civil litigant is provided court-appointed counsel.
Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991). Relevant factors include “the
factual complexity of the case, the ability of the indigent [litigant] to investigate the
facts, the existence of conflicting testimony, the ability of the indigent [litigant] to
present his claim and the complexity of the legal issues.” Id. Additionally, the court
considers whether the litigant has, in good faith, attempted to retain counsel but has
been unsuccessful. Id. (quoting Nelson v. Redfield Lithograph Printing, 728 F.2d 1003,
1005 (8th Cir. 1984)).
Contrary to Corman’s assertions, the case is not factually or legally complex, and
appointment of counsel would not benefit the court. Corman’s request for
court-appointed counsel, (Doc. 17), will be denied.
Conclusion
Continued stay of Corman’s remaining claim is not warranted. Having now
reviewed the remaining claim pursuant to § 1915(e)(2), it is this court’s opinion the
stayed claim is not plausible, and this court RECOMMENDS Corman’s remaining
claim against Sullivan be dismissed and judgment be entered accordingly.
Because any appeal would be frivolous and could not be taken in good faith, this
court further RECOMMENDS the chief district judge find any appeal may not be taken
in forma pauperis.
Additionally, for the reasons discussed above, it is ORDERED that Corman’s
motion for court-appointed counsel is DENIED.
Dated this 9th day of April, 2020.
/s/ Alice R. Senechal
Alice R. Senechal
United States Magistrate Judge
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NOTICE OF RIGHT TO OBJECT4
Plaintiff may object to this Report and Recommendation and Order by filing with
the Clerk of Court no later than April 23, 2020, a pleading specifically identifying
those portions of the Report and Recommendation and Order to which objection is
made and the basis of any objection. Failure to object or to comply with this procedure
may forfeit the right to seek review in the Court of Appeals.
4 See Fed. R. Civ. P. 72(b); D.N.D. Civ. L.R. 72.1.
6
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