This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Rick L. McDeid, petitioner,





Michael O’Keefe, et al.,



Filed July 8, 2003


Hudson, Judge


Carlton County District Court

File No. C402651


Ricky L. McDeid, 1111 Highway 73, Moose Lake, Minnesota 55767 (pro se appellant)


Mike Hatch, State Attorney General, Noah Cashman, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, Minnesota 55101 (for respondents)


            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            This appeal is from an order dismissing with prejudice appellant Ricky McDeid’s 42 U.S.C. § 1983 action alleging defamation, breach of fiduciary duty, violations of due process and equal protection, and other claims, for failure to state a claim on which relief can be granted.  We affirm.


          Appellant McDeid was involuntarily committed to the Minnesota Sex Offender Program (MSOP) in 1999 as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP).

            On February 14, 2002, residents of Unit C of MSOP, the unit on which McDeid resides, were notified that their rooms would be searched.  The residents received a memo suggesting that they would be confined to their rooms during the search.  When two security staff officers arrived at McDeid’s room, he was told he needed to be present during the search.  McDeid alleges that other residents were excused upon signing a waiver.

            McDeid’s complaint alleges that he was locked in his room until after all the rooms on the unit were searched, then was allowed to attend a Unit Representative Meeting.  After the meeting, McDeid was escorted to the gymnasium, where the other Unit C residents were also present, with security staff guarding the exit doors.  McDeid alleges that he and other residents suffered “emotional and mental distress” during this “confinement” in the gymnasium.  McDeid asked a security staff member why they were being kept in the gymnasium, and when he received no information from her, asked to speak with a higher-level staff member.  At that point, another resident allegedly asked McDeid to inquire on behalf of all of them, since he was the unit representative. 

            McDeid’s complaint alleges that he and three other residents then “gathered a group at the end of the gymnasium to hold a community meeting.”  They allegedly voted to request, as a group, that a higher-level staff member be brought in to tell them why they were being confined in the gymnasium.  The group approached the security staff to convey this request.  After waiting about half an hour, a resident, whom McDeid alleges was mentally ill, tried to leave the gym and was tackled and physically restrained by staff members.

            As a result of this disturbance, McDeid was charged with inciting a riot.  McDeid was told he would receive two days of Unit Protective Isolation (UPI), and five days of Level A restrictions, and that he would temporarily lose his security rating.  After these sanctions were imposed, McDeid filed a number of grievances with the MSOP staff.

            McDeid filed a complaint alleging a violation of due process, violations of MSOP policies and the Patient’s Bill of Rights, and a violation of equal protection.  In an amended complaint, McDeid added a claim of defamation and submitted a number of affidavits from residents of MSOP who witnessed the February 14 incident.

            The district court granted respondents’ motion to dismiss the complaint for failure to state a claim on which relief could be granted.  The court concluded that the respondents are covered by the statutory immunity provided in Minn. Stat. § 253B.23, subd. 4; that McDeid had not shown any liberty interest infringed by the disciplinary sanctions; that the Patient’s Bill of Rights does not create a private cause of action; that the documentation in McDeid’s file is covered by an absolute privilege; and that McDeid’s other claims are without merit. 


            On appeal from an order dismissing a complaint for failure to state a claim on which relief can be granted, this court “determine[s] only whether the complaint sets forth a legally sufficient claim for relief.”  Doyle v. Kuch, 611 N.W.2d 28, 31 (Minn. App. 2000).  This court then reviews de novo the legal sufficiency of the claim.  Janssen v. Best & Flanagan, 645 N.W.2d 495, 497 (Minn. App. 2002).  When a complaint alleges constitutional errors, the defendants must demonstrate that the complaint is frivolous before a motion to dismiss for failure to state a claim will be granted.  Elzie v. Comm’r of Pub. Safety, 298 N.W.2d 29, 33 (Minn. 1980).


The district court dismissed McDeid’s complaint based in part on a conclusion that respondents are covered by the immunity provided in Minn. Stat. § 253B.23, subd. 4 (2002).  That provision states:

All persons acting in good faith, upon either actual knowledge or information thought by them to be reliable, who act pursuant to any provision of this chapter or who procedurally or physically assist in the commitment of any individual, pursuant to this chapter, are not subject to any civil * * * liability under this chapter.


Id.  This statute has been held to provide immunity for those “who participate in the commitment process in good faith.”  Mjolsness v. Riley, 524 N.W.2d 528, 531 (Minn. App. 1994).  Further, the immunity provided by section 253B.23, subd. 4, for those involved in the commitment process is comparable to a prosecutor’s immunity for acts involved in the charging of crimes.  See generally Erickson v. County of Clay, 451 N.W.2d 666 (Minn. App. 1990). 

But respondents here are not being sued for any actions taken in the course of McDeid’s commitment.  Rather, they are being sued for actions involved in their supervision of McDeid long after his commitment.  We conclude that the statutory immunity provided by Minn. Stat. § 253B.23, subd. 4, for those involved in the commitment process does not extend to those who later supervise and treat committed persons.  Therefore, respondents are not entitled to immunity under Minn. Stat. § 253B.23, subd. 4.

Although section 253B.23, subd. 4, does not provide respondents with immunity, respondents, as government officials, engaged in discretionary functions that enjoy a qualified common-law immunity.  See Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn. 1997); Jarvis v. Levine, 418 N.W.2d 139, 149-50 (Minn. 1988) (holding that the staff of a mental hospital following established state procedures in administering neuroleptic medications were immune from liability despite the court’s holding that the patients’ right to privacy was infringed by involuntary administration of the drugs without prior judicial approval).  This qualified common-law immunity requires that the officials have acted in good faith.  See Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727 (1982).  The determination whether official immunity is available is a two-step process, requiring first a determination whether the alleged acts are discretionary or ministerial, and then a determination whether the acts were malicious or willful “and therefore stripped of the immunity’s protection.”  Dokman v. County of Hennepin, 637 N.W.2d 286, 296 (Minn. App. 2001) (citation omitted), review denied (Minn. Feb. 28, 2002).

Here, respondents’ acts in searching the rooms on McDeid’s unit, gathering the residents in the gymnasium, and charging McDeid with inciting a riot after the disturbance in the gym, were discretionary acts.  The search of the rooms on McDeid’s unit was conducted according to MSOP policy, and McDeid does not allege that it was malicious or willful.  Although gathering the residents in the gymnasium was apparently contrary to MSOP policy, this action appears to have been more humane than keeping the residents confined to their rooms all day.  Therefore, that act cannot be shown to be malicious or willful.

We also conclude that McDeid has not alleged any facts to support his claim that the inciting-a-riot charge was malicious or willful.  McDeid concedes that there was a disturbance, that his complaints preceded the disturbance, and that he, as unit representative, helped convene an impromptu community meeting that preceded the disturbance.  Moreover, respondents did not charge McDeid with inciting a riot until they had held a staff meeting, at which McDeid and another resident appeared, to sort out the facts of this incident.  Given the potential volatility of the situation and McDeid’s leadership role in it, we conclude that respondents’ actions in charging him were not willful or malicious.  Cf. Kelly v. City of Minneapolis, 598 N.W.2d 657, 663 (Minn. 1999) (affirming jury verdict that police officers making arrests following physical altercation between officers and arrestees did not act with malice despite use of racial epithets and application of force after arrestees were restrained); Watson v. Metro. Transit Comm’n, 553 N.W.2d 406, 415 (Minn. 1996) (holding bus driver’s exercise of discretion in a volatile situation was protected by official immunity).


McDeid argues that the imposition of disciplinary sanctions against him, without advance notice and a hearing before a neutral decision-maker, violated his right to procedural due process.  In order to show a violation of due process, McDeid must show that he was deprived of a constitutionally protected liberty or property interest.  See Matthews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 901 (1976).  The state argues that the minimal disciplinary sanctions imposed on McDeid are insufficient to constitute a constitutionally protected liberty interest.  See Bell v. Wolfish, 441 U.S. 520, 539 n.21, 99 S. Ct. 1861, 1874 n.21 (1979) (noting due process does not extend to de minimis level of sanctions).  We agree.

The United States Supreme Court has held that a prison inmate placed in segregation for 30 days did not have a constitutionally protected liberty interest infringed so as to require additional due process protections.  Sandin v. Conner, 515 U.S. 472, 486, 115 S. Ct. 2293, 2301 (1995).  We acknowledge that McDeid’s status as a civilly committed resident of a mental hospital is somewhat different than that of a prisoner.  It is, however, a secure facility designed for the treatment of dangerous persons who pose a significant threat to others.  See Minn. Stat. § 246B.02 (2002).  Furthermore, McDeid was assessed only two days of UPI (Unit Protective Isolation), which appears to be MSOP’s equivalent of segregation, five days of Level A restrictions, and a temporary loss of his “security rating.”  As the trial court correctly noted, McDeid was not deprived of an important liberty interest, but merely restricted in his access to certain privileges for a short time.  We conclude that these sanctions do not rise above the de minimis level and therefore do not state a claim of denial of due process.  Therefore, McDeid’s due process claim is frivolous and was properly dismissed.


McDeid alleges that he was defamed when respondent staff members placed in his file the allegation that McDeid incited a riot.  McDeid claims that these file entries have or will injure his attempt to obtain a discharge from the special review board.

In order to establish a defamation claim, a plaintiff must prove that the defendant(s) published a false statement of fact to a third party that tends to harm the plaintiff’s reputation or lower him in the estimation of the community.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).  As the state points out, McDeid has not alleged any “publication” of the claim that he incited a riot other than its entry into his file. 

Even if McDeid could show “publication,” the MSOP staff members enjoy absolute immunity for statements made in a report they were required to make as part of their duties.  See Carradine v. State, 511 N.W.2d 733, 736-37 (Minn. 1994) (holding police officers have absolute immunity for statements made in arrest reports).  McDeid has not presented any facts to suggest that respondent staff members were not required to document McDeid’s alleged disciplinary infraction as part of their official duties.


McDeid’s complaint raised several other claims also rejected by the district court as failing to state a claim upon which relief can be granted.

McDeid alleged that respondents violated the Patient’s Bill of Rights in several ways.  The Patient’s Bill of Rights sets out a number of “rights” enjoyed by “patients” and “residents” that should not be infringed by the facilities in which they live.  Minn. Stat. § 144.651, subd. 1 (2002).  McDeid is a “patient” as defined in the Patient’s Bill of Rights, but the Patient’s Bill of Rights does not establish a private cause of action.

In order for a statute to be construed as implying a private cause of action, the legislature must have indicated an intent to create that remedy, and the remedy must not be inconsistent with the underlying purposes of the statute.  Flour Exch. Bldg. Corp. v. State, 524 N.W.2d 496, 499 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).  The statute creating the Patient’s Bill of Rights establishes a grievance procedure for enforcement of those rights.  Minn. Stat. § 144.651, subd. 20.  It authorizes the commissioner of health to issue a correction order to remedy any “substantial violation.”  Minn. Stat. § 144.652, subd. 2.  It also provides that the issuance or nonissuance of that correction order “shall not preclude, diminish, enlarge, or otherwise alter private action” by the patient.  Id. (emphasis added).  There is no language in the statute indicating an intent to create a private cause of action.

McDeid also alleged that respondent staff members breached a fiduciary duty to him.  This court has declined to re-frame medical malpractice claims in terms of a breach of a fiduciary duty on the part of the physician.  D.A.B. v. Brown, 570 N.W.2d 168, 171 (Minn. App. 1997).  There is no Minnesota case law holding that physicians or hospital staff members have a fiduciary duty towards their patients.  Thus, even assuming McDeid could present evidence showing a breach of such a duty, the district court properly dismissed this claim.

McDeid also claimed that respondents violated various criminal statutes by neglecting, mistreating, abusing, or coercing him.  See Minn. Stat. §§ 609.23, .231, .233, .27 (2002).  The general rule is that a criminal statute creates a private cause of action only if its intent to do so appears by express terms or by clear implication.  H.J., Inc. v. Northwestern Bell Corp., 420 N.W.2d 673, 675 (Minn. App. 1988).  The criminal statutes McDeid cites do not expressly provide for a private cause of action, nor do they imply such an intent.

Finally, McDeid alleged in general terms a violation of equal protection.  In his reply brief, McDeid argues that people committed as SDP and SPP are being treated differently than people involuntarily committed for other reasons.  Although McDeid does not so state, he apparently is referring to other persons involuntarily committed, such as the mentally ill and dangerous, committed pursuant to Minn. Stat. § 253B.02, subds. 13 and 17 (2002).  But appellant’s argument misses the mark.  Persons involuntarily committed as mentally ill under Minn. Stat. § 253B.02, subds. 13 and 17 (2002), are not similarly situated to individuals involuntarily committed as SDP or SPP under Minn. Stat. § 253B.02, subds. 18(b) and 18(c) (2002), because the statutory criteria for the respective commitments are fundamentally different.

Here, it appears that the February 14, 2002 incident involved only persons committed to MSOP as SPP or SDP.  McDeid cannot show that he was singled out for disparate treatment when all other residents were similarly classified.  Moreover, it appears that all the residents of Unit C had their rooms searched; that all were later confined in the gymnasium; and that McDeid personally approached security staff with a complaint and that he, as the unit representative, helped organize and lead the impromptu community meeting that was treated as a “riot.”  Thus, the record demonstrates that respondents had ample reason to single McDeid out for treatment that was harsher than that imposed on the other residents of Unit C.  McDeid’s equal-protection claim is frivolous and was properly dismissed.