Olafson v. Schulz et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Andrew James Olafson, 	)
)
Plaintiff, 	)
) 	Case No. 3:14-cv-90
v. 	)
) REPORT AND RECOMMENDATION
Kerry Wicks, Alex Schweitzer, and 	) 	AND ORDER
Dr. Mark Rodlund, 	)
)
Defendants. 	)
Plaintiff Andrew James Olafson, proceeding pro se, asserted claims under 42
U.S.C. § 1983 related to his confinement at the North Dakota State Hospital (NDSH) as
a sexually dangerous individual (SDI). After an initial review of Olafson’s claims
pursuant to 28 U.S.C. § 1915A, the court allowed certain claims to proceed, dismissed
certain other claims, and stayed three claims. (Doc. 16; Doc. 21). The claims on which
Olafson had initially been allowed to proceed were subsequently dismissed on summary
judgment. (Doc. 114). Thus, the only remaining claims are the three claims that have
been stayed.
The stayed claims allege (1) an evaluation that resulted in Olafson’s classification
as an SDI was done by someone who possessed child pornography, (2) Olafson received
a bill from NDSH when he should not have been confined at the institution, and (3)
Olafson received better sex offender treatment at the North Dakota State Penitentiary
than at NDSH. (Doc. 17, pp. 3-4; Doc. 18, p. 2). Those claims were stayed prior to initial
review under § 1915A.
The three claims were stayed because the court determined they might be related
to claims in another case in which Olafson is a plaintiff. That case, Ireland v. Jones, No.
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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 10, 2020, the court ordered Olafson to show cause why the three
stayed claims should not be dismissed in light of the Karsjens and Ireland decisions
discussed above. Olafson responded to the order to show cause and requested additional
time to submit documents. (Doc. 124). Because the documents Olafson requests to
submit have no relation to the stayed claims and have no bearing on the effect of the
Ireland and Karsjens decisions on the stayed claims, his request for an extension of time
to submit additional documents is denied. This court finds a stay of the three claims is
no longer warranted and therefore proceeds to the initial review of the three stayed
claims.
Background
The court described Olafson’s factual allegations relating to the three stayed
claims in a November 16, 2015 order:
Olafson alleges that an evaluation which resulted in his classification
as an SDI was done by Doctor Joseph Belanger, a NDSH employee, who
possessed child pornography on his computer. . . . Olafson states that Alex
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Schweitzer 	and 	Kerry 	Wicks 	“knew 	that 	[Belanger] 	possessed 	child
pornography,” and had him conduct Olafson’s initial evaluation despite their
knowledge. Olafson further contends that Belanger “admitted to having child
pornography to . . . patients.” . . .
Olafson contends that he has received a bill from the NDSH when he
should not have been confined at the institution. . . . Olafson alleges that he
received the bill from Schweitzer and Wicks.
. . . .
Lastly, Olafson alleges that he receives better treatment at the NDSP
than at the NDSH. . . . Olafson contends that at the NDSH he is “put . . . in . . .
isolation [and is] secluded . . . from [his] treatment [program],” and that he
was “in seclusion” for “1,000 or more hours.” Additionally, he contends that
he is “refuse[d] . . . proper sex offender treatment programs.” . . . [H]e
contends that [Dr. Mark Rodlund] was responsible for his sex offender
treatment at the NDSH.
(Doc. 21, pp. 24-26) (internal citations omitted).
In his response to the order to show cause, Olafson reiterates his claim
concerning Dr. Belanger having possessed child pornography and states, “I’m being
civilly committed based off of that evaluation.” (Doc. 124, p. 2). Olafson’s response also
describes claims asserted in Ireland or in a state action, in which he appealed an order
continuing his confinement as an SDI, related to having been civilly committed in the
absence of a conviction for a sexual offense committed while an adult, an assertion his
civil commitment amounts to punishment, NDSH not providing effective treatment in
the least restrictive environment, and NDSH violating the Americans with Disabilities
Act. Id. at 2-5. Olafson requests release from confinement as an SDI and states that if
the court orders him released, he will withdraw this lawsuit. The court then considers
Olafson’s three remaining claims under § 1915A.
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Law and Discussion
Under § 1915A, 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).
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
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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). Each of the stayed claims
asserts a due process violation. In light of the Ireland and Karsjens decisions, none of
the three stayed claims is plausible, and they should be dismissed.
In his response to the order to show cause, Olafson raised issues unrelated to the
stayed claims, and the court considers those matters under § 1915A. The documents
Olafson wishes to submit appear to relate, at least in part, to a claim concerning NDSH’s
alleged confiscation of his social security benefits. (Doc. 124, pp. 1, 7). That claim, for
which Olafson requests money damages, is not a part of this action. Olafson states
money damages for the alleged confiscation of his social security benefits, and his
release from confinement, are the only “remedies that [he is] requesting the courts to
really consider.” Id. at 6. Although Olafson also describes another issue not raised in this
action, alleging NDSH has failed two “health inspections,” he requests no relief
concerning that issue. Id. at 5.
Olafson’s request for release is not properly brought in a § 1983 action. See
Franklin v. Webb, 653 F.2d 362, 363 (8th Cir. 1981) (citing Preiser v. Rodriguez, 411
U.S. 475, 500 (1973)) (stating habeas corpus provides prisoners the exclusive federal
remedy for challenges to the fact or duration of their confinement); see also Carter v.
Bickhaus, 142 F. App’x 937, 938 (8th Cir. 2005) (per curiam unpublished opinion)
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(applying the rule of Franklin and Preiser in the context of a civilly committed individual
seeking release in a § 1983 action). Additionally, Olafson cannot obtain money damages
for the alleged confiscation of his social security benefits because that claim is not part
of this action. Thus, he has not stated any plausible claim that would entitle him to the
relief he seeks.
Conclusion
Continued stay of Olafson’s three remaining claims is not warranted. Having now
reviewed each of those claims pursuant to § 1915A, it is this court’s opinion none of the
three stayed claims is plausible, and this court RECOMMENDS Olafson’s claims
against the remaining three defendants be dismissed and judgment be entered
accordingly. Additionally, to the extent Olafson raises issues concerning matters other
that the three stayed claims, this court RECOMMENDS the chief district judge find no
relief can be granted in this action.
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 Olafson’s
motion for an extension of time to submit additional documents is DENIED.
Dated this 2nd day of April, 2020.
/s/ Alice R. Senechal
Alice R. Senechal
United States Magistrate Judge
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NOTICE OF RIGHT TO OBJECT1
Plaintiff may object to this Report and Recommendation and Order by filing with
the Clerk of Court no later than April 16, 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.
1 See Fed. R. Civ. P. 72(b); D.N.D. Civ. L.R. 72.1.
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