Daywitt v. Harpestead

Background

The plaintiffs were civilly committed clients of Minnesota’s Sex Offender Program (MSOP). They challenged MSOP policies that restricted internet use, outgoing email, computer use, and video visits. The remaining claims were First Amendment claims concerning access to internet-based information and religious practice. Earlier in the case, Judge Nancy Brasel dismissed the plaintiffs’ access-to-the-courts claim, substantive due process claim, and unspecified statutory and common-law claims, while allowing the internet-access and free-exercise claims to proceed.

The parties filed competing motions for summary judgment. The defendants also moved to exclude the plaintiffs’ expert, Patrick O’Leary, under Federal Rule of Evidence 702 and the standards governing expert testimony. The plaintiffs separately requested weekly ITV, or video, communications to help them litigate and prepare for trial.

Expert testimony

The court recommended granting the defendants’ motion to exclude Mr. O’Leary’s report and opinions. It found that he lacked experience, education, or training concerning sex-offender treatment, recidivism, detention-facility security, and the effectiveness of internet and email-monitoring technology in an MSOP-type setting. His investigation of the proposed software relied primarily on internet research, manufacturer information, and a 30-minute product demonstration. He did not test the software in an MSOP setting or rely on independent testing or peer review.

The court also found that Mr. O’Leary’s opinions that the proposed software would be 100 percent effective, would solve MSOP’s problems, or would have particular costs were unsupported or speculative. It further recommended excluding his opinions about defendants’ motives, bias, reasonableness, credibility, and legal conclusions because those matters were not appropriate subjects for expert testimony. The court also recommended denying the plaintiffs’ requests to extend the deadline for excluding defendants’ experts and for sanctions.

Internet and information claim

The court applied the modified four-factor test previously selected by Judge Brasel. That test asks whether the restrictions are rationally related to MSOP’s institutional or therapeutic interests, whether the plaintiffs have alternative ways to exercise their rights, what effect the requested relief would have on MSOP and its resources, and whether simple, cost-effective alternatives would meet MSOP’s objectives.

The court concluded that the plaintiffs had not shown an identifiable constitutional right to possess or use a computer, maintain an email account, or access the internet. It alternatively concluded that the restrictions survived the modified test. MSOP identified public safety, facility security, treatment, prevention of prohibited or counter-therapeutic materials, and resource limitations as reasons for the restrictions. The plaintiffs could use mail, telephone calls, approved video or in-person visits, streaming services, books, newspapers, magazines, television, radio, and computers with legal-research and word-processing functions.

The court rejected the plaintiffs’ proposed technology as support for their claim because Mr. O’Leary’s opinions were excluded and, even if considered, did not establish implementation or monitoring costs. The court also found evidence that after-the-fact monitoring would not adequately prevent harm and that real-time monitoring would require resources MSOP and Minnesota Information Technology Services did not have. It therefore recommended granting defendants’ summary-judgment motion and denying plaintiffs’ summary-judgment motion on this claim.

Free-exercise claim

The plaintiffs alleged that the lack of internet access interfered with religious activities, including online Bible study, online church services, access to religious publications, ministry materials, and religious education. The court found that they had not identified a religious activity that required internet access and that the record showed they regularly participated in prayer, worship, spiritual groups, religious study, and other religious practices.

The plaintiffs also could use religious materials, mail, telephone calls, visits, approved streaming programs, and other forms of communication. The court concluded that a preference for internet communication did not establish a substantial burden on religious practice. It further held that, even assuming a substantial burden, the modified Turner factors favored MSOP for the same reasons applicable to the internet-access claim. The court therefore recommended granting defendants’ summary-judgment motion and denying plaintiffs’ motion on the free-exercise claim.

Weekly communication request and disposition

The court denied the plaintiffs’ motion for weekly ITV communications. It found that any claimed harm concerning the summary-judgment briefing was addressed when Kenneth Daywitt was allowed to file his own briefs. Trial preparation was moot because the court recommended dismissing the case, and no trial date had been set.

The document is an order and report and recommendation. Judge Wright ordered that the weekly-communication motion be denied. She recommended that the defendants’ motion to exclude be granted, the plaintiffs’ summary-judgment motion be denied, the defendants’ summary-judgment motion be granted, and the action be dismissed with prejudice. The recommendation was not a final district-court judgment and was not directly appealable to the Court of Appeals; the notice stated that parties could file written objections within the specified period.