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
vs. 	)
) 	REPORT AND RECOMMENDATION
Lynne Sullivan, North Dakota State 	)
Hospital ‘Evaluator,’ and Greg Volk, 	)
)
Defendants. 	)
Plaintiff Ryan R. Corman (Corman), who is proceeding in forma pauperis, filed a
complaint alleging violations of 42 U.S.C. § 1983. Under 28 U.S.C. § 1915(e)(2), the court may
sua sponte review an in forma pauperis complaint. If the court determines that the action is
frivolous, malicious, fails to state a claim, or seeks monetary relief against a defendant who is
immune from monetary relief, the court must dismiss the complaint.
Summary of Recommendation
Greg Volk is absolutely immune from suit, since he was acting in his role as a court-
appointed psychologist. Lynne Sullivan is immune from suit for monetary damages in her
official capacity under the Eleventh Amendment, and she is immune from suit for monetary
damages in her individual capacity for claims based on her testimony as a witness at a judicial
proceeding. Corman’s claim regarding Lynne Sullivan’s use of allegedly discredited actuarial
risk assessment tools should be stayed, since that claim is also alleged by Corman in another suit
pending before this court, although it is against other defendants. To the extent Corman has
requested a criminal investigation and prosecution, he is not entitled to compel that relief. It is
recommended that the complaint be dismissed as to all but one claim, and that the case be stayed
pending resolution of Ireland v. Anderson, D.N.D. Case No. 2:13-cv-3.
Case 3:14-cv-00032-PDW-ARS Document 15 Filed 05/06/15 Page 1 of 6

Background
Corman alleges that Lynne Sullivan (Sullivan), the state’s psychological evaluator,
committed perjury at Corman’s civil commitment hearing when she testified that he had made
“death threats” against North Dakota State Hospital (NDSH) staff, that he needed to be the
“center of attention,” that he was “disruptive,” and that he displayed “inappropriate behaviors.”
(Doc. #9, p. 4). Corman contends that Sullivan had no contact with him, and that staff charts
“entirely contradicted Sullivan’s . . . testimony.” Id. Corman also alleges that Sullivan’s use of
allegedly discredited actuarial risk assessment tools—Minnesota Sex Offender Screening Tool-
Revised (MnSOST-R) and Static 99—resulted in a “false sense of risk, danger, and urgency.” Id.
(internal quotation marks omitted).
Corman alleges that Greg Volk (Volk), who was appointed by the state court as an
independent psychological evaluator, did not thoroughly evaluate him, since he did not conduct
any psychological testing, and he interviewed Corman for “only . . . 45 min[utes].” Id. at 5.
Corman also contends that Volk disregarded Corman’s past treatment, and utilized allegedly
discredited actuarial risk assessment tools—MnSOST-R and Static 99.
Corman requests a “law enforcement investigation” and state or federal “prosecution.”
Id. at 6 (capitalization altered). He also requests monetary damages against the defendants in
their official and individual capacities. Id. at 3, 9.
Law and Discussion
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 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).
2
Case 3:14-cv-00032-PDW-ARS Document 15 Filed 05/06/15 Page 2 of 6

A complaint fails to state a claim if it does not present a “plausible” claim. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). When the factual content of a complaint allows the
court to reasonably infer “that the defendant is liable for the misconduct alleged,” the complaint
has stated a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556).
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.
Iqbal, 556 U.S. at 678. If, however, the complaint includes facts that undermine the claim, the
court is not required to ignore those unfavorable facts; rather, the court may conclude from the
alleged facts as a whole that no cognizable claim is stated as a matter of law. E.g., Edwards v.
Snyder, 478 F.3d 827, 830 (7th Cir. 2007) (“[A] plaintiff may unwittingly plead himself out of
court by alleging facts that preclude recovery.”).
Claims Against Greg Volk
Volk acted as a court-appointed psychologist. He was directed to evaluate Corman and to
testify at his civil commitment hearing. Court-appointed psychologists have absolute immunity
from suit based on their actions in that role, because they perform functions essential to the
judicial process. Morstad v. Dep’t of Corr. And Rehab., 147 F.3d 741, 744 (8th Cir. 1998).
Corman’s claims against Volk in his individual and official capacities must therefore be
dismissed.
Claims Against Lynne Sullivan
Sullivan is a state employee. A suit against a state employee in his or her official capacity
is considered to be a suit against the state. See Will v. Michigan Dep’t of State Police, 491 U.S.
3
Case 3:14-cv-00032-PDW-ARS Document 15 Filed 05/06/15 Page 3 of 6

58, 71 (1989). Under the Eleventh Amendment, states are immune from suits for damages in
federal courts absent a waiver of that immunity. Id. at 66. The State of North Dakota has not
waived its Eleventh Amendment immunity. See N.D. Cent. Code § 32-12.2-10. Corman is
therefore barred from recovering monetary damages against Sullivan in her official capacity, and
Corman’s claims seeking monetary damages against Sullivan in her official capacity must be
dismissed.
Witnesses at judicial proceedings—including government employees—are immune from
suits for monetary damages alleging that the official perjured his or her testimony. Briscoe v.
LaHue, 460 U.S. 325, 326, 334 (1983). Corman is therefore barred from recovering monetary
damages against Sullivan in her individual capacity based on his claim that she committed
perjury, and that claim must therefore be dismissed.
Corman’s claim concerning use of allegedly discredited actuarial risk assessment tools is
an issue in another action pending before this court in which Corman is a plaintiff. See Ireland v.
Anderson, D.N.D. Case No. 2:13-cv-3. In Ireland, Corman is represented by court-appointed
counsel, and he and the other plaintiffs challenge the use of the same actuarial risk assessment
tools. Although Sullivan is not a defendant in Ireland, resolution of that claim in Ireland may
impact the instant action. It would be beneficial both to Corman and to the court if the action in
which Corman is represented by counsel were resolved before this claim is resolved. Therefore,
a stay of this action is warranted in the interests of justice.
Requests for Criminal Investigation and Prosecution
Corman requests that the defendants be investigated and criminally prosecuted. A private
citizen does not have a constitutional right or any other basis to compel a criminal investigation.
4
Case 3:14-cv-00032-PDW-ARS Document 15 Filed 05/06/15 Page 4 of 6

Mitchell v. McNeil, 487 F.3d 374, 378 (6th Cir. 2007) (“There is no statutory or common law
right, much less a constitutional right, to an investigation.”); see also Linda R.S. v. Richard D.,
410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.”). Corman is not entitled to compel a criminal
investigation of the defendants’ actions or the prosecution of the defendants. To the extent the
complaint requests that a criminal investigation and prosecution be initiated, the complaint
should be dismissed.
Conclusion
Greg Volk is immune from suit as a court-appointed psychologist. Lynne Sullivan is
immune from suit for monetary damages in her official capacity under the Eleventh Amendment,
and she is immune from suit for monetary damages in her individual capacity for claims based
on her testimony. Corman’s claim against Sullivan in her individual capacity regarding the use
of allegedly discredited actuarial risk assessment tools is related to an issue in another action
pending before this court, and that claim should therefore be stayed in this case. Lastly, Corman
is not entitled to compel a criminal investigation or prosecution of the defendants. Accordingly,
it is RECOMMENDED that:
1) 	Corman’s complaint be DISMISSED as to Greg Volk in his individual and
official capacities;
2) 	Corman’s complaint be DISMISSED as to Lynne Sullivan in her official
capacity;
3) 	Corman’s complaint be DISMISSED as to his claim alleging that Lynne
Sullivan, in her individual capacity, committed perjury;
5
Case 3:14-cv-00032-PDW-ARS Document 15 Filed 05/06/15 Page 5 of 6

4) 	Corman’s complaint be DISMISSED to the extent that he requests a criminal
investigation and prosecution; and
5) 	This action be STAYED until the claim regarding the use of allegedly discredited
actuarial risk assessment tools in Ireland is resolved, or until further order of the
court.
Dated this 6th day of May, 2015.
/s/ 	Alice R. Senechal
Alice R. Senechal
United States Magistrate Judge
NOTICE OF RIGHT TO OBJECT
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, and District of North
Dakota Local Court Civil Rule 72.1(D)(3), plaintiff may object to this Report and
Recommendation by filing with the Clerk of Court no later than May 22, 2015, a pleading
specifically identifying those portions of the Report and Recommendation 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
6
Case 3:14-cv-00032-PDW-ARS Document 15 Filed 05/06/15 Page 6 of 6