This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Robert Dekart,



Frank Milczark, C.E.O., MSPPTC,


Filed September 22, 1998


Huspeni, Judge

Carlton County District Court

File No. C9971293

Robert Dekart, 1111 Hwy. 73, Moose Lake, MN 55767 (pro se appellant)

Hubert H. Humphrey III, Attorney General, Paul M. Landskroener, Asst. Attorney General, 900 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Peterson, Judge.



Appellant Robert Dekart, a patient at the Minnesota Sexual Psychopathic Personality Treatment Center, alleges that his First Amendment rights were violated when staff confiscated what they determined was a contraband videotape, and that his resulting security level changes were patient abuse. Because appellant's First Amendment claim is moot and because appellant otherwise failed to state a claim, we affirm the district court's summary judgment.


Appellant Robert Dekart is civilly committed to the Minnesota Sexual Psychopathic Personality Treatment Center (MSPPTC). The MSPPTC prohibits as contraband "sexually explicit movies * * * [or] materials promoting child molestation." Appellant taped a movie from cable programming to view at another time. During a routine search of appellant's room, MSPPTC staff discovered the videotaped movie, removed it, and viewed it a few days later. Staff initially determined that the video was contraband under MSPPTC's policy and imposed security level changes on appellant for one week as a consequence of his violation of the contraband policy. At the end of the week, MSPPTC's clinical director reviewed the video and returned it to appellant. She determined that, although it was counter-therapeutic, the video did not clearly violate the contraband policy.

Appellant filed a complaint in district court naming respondent Frank Milczark, Chief Executive Officer of MSPPTC, as the only defendant and alleging that seizing the video: (1) forced him to submit to involuntary treatment; (2) violated his constitutional rights; and (3) constituted patient abuse. Respondent moved for dismissal and summary judgment claiming that appellant failed to properly serve him and that appellant failed to establish any claim for relief. The district court dismissed the complaint on both grounds.


Respondent based his dismissal and summary judgment motion on both Minn. R. Civ. P. 12 and Minn. R. Civ. P. 56. Because the district court considered materials outside the pleadings when it granted respondent's motion, our review is from summary judgment. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). When reviewing a district court's grant of summary judgment, we determine: (1) whether there are any genuine issues of material fact; and (2) whether the district court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). Evidence must be viewed in the light most favorable to the party against whom summary judgment was granted. Id.

Contrary to appellant's argument, the district court correctly ruled that respondent was not properly served. Personal service of an individual requires "delivering a copy to the individual personally or by leaving a copy at the individual's usual place of abode." Minn. R. Civ. P. 4.03(a). Personal service is not satisfied by leaving a summons and complaint with a coworker at an individual's place of business. Thiele v. Stich, 425 N.W.2d 580, 584 (Minn. 1988). Appellant's affidavit of service does not meet the requirements of rule 4.03(a) because it states that a fellow patient, Nicolaison, personally served a social worker at MSPPTC. The social worker was not a defendant and was not respondent's agent to receive service. Appellant's actual notice argument also fails because that exception applies only where substitute service is effected at an individual's place of abode, not at a place of business. Id.

Because the district court addressed issues other than jurisdiction, we shall also do so in the interest of completeness. Even if we assume that service was proper, we affirm the district court's ruling that appellant's claims were moot. Courts decide only actual controversies; they do not issue advisory opinions or decide cases merely to establish precedent. In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989). Regardless of appellant's right to watch a sexually explicit video, his claim became moot when MSPPTC returned the video within one week. No harm stemming from the temporary confiscation of appellant's videotape exists to be remedied. Accordingly, the district court correctly ruled that appellant's claims to relief were moot. See In re Minnegasco, 565 N.W.2d 706, 710 (Minn. 1997) (when event occurs that makes decision unnecessary, case should be dismissed as moot).

Further, even if we were to consider the merits of appellant's constitutional argument, he fails to establish a tort claim under 42 U.S.C. § 1983 (1994). Appellant must establish that respondent, acting under color of state law, violated his rights under the federal constitution. Johnson v. Morris, 453 N.W.2d 31, 34-35 (Minn. 1990) (requirements for section 1983 claim). Generally, the First Amendment protects the right to receive information regardless of its social worth. Stanley v. Georgia, 394 U.S. 557, 564-65, 89 S. Ct. 1243, 1247-48 (1969) (recognizing right to view obscene material in privacy of one's home is protected both by First Amendment and right to privacy). Content-based restrictions of expression presumptively violate the First Amendment. State v. Holmberg, 545 N.W.2d 65, 70 (Minn. App. 1996). Nevertheless, institutional restrictions on the constitutional rights of committed persons "will generally be upheld if they are reasonably related to the therapeutic interests of the patients." Martyr v. Mazur-Hart, 789 F. Supp. 1081, 1085 (D. Or. 1992) (citing Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261 (1987)).

Appellant argues that because he refuses treatment, any restriction for therapeutic reasons cannot be justified in his case. However, appellant, as an involuntarily committed patient, has only a limited right to refuse treatment. See generally Minn. Stat. § 253B.03 (1996 & Supp. 1997) (listing rights of patients); see also Jarvis v. Levine, 418 N.W.2d 139, 148 (Minn. 1988) (recognizing committed patient's privacy right to refuse intrusive treatment, such as neuroleptic medications and electroshock treatment, and right to judicial intervention before state may involuntarily subject patients to intrusive treatment). Even though an involuntarily committed patient may refuse to cooperate with treatment, the state may still attempt treatment. See Price v. Sheppard, 307 Minn. 250, 258-60, 239 N.W.2d 905, 911-12 (1976) (holding if interest of state is sufficiently important to deprive individual of physical liberty, it is sufficiently important to assume most treatment decisions). The state's treatment decisions are only outweighed by the patient's privacy interest when treatment is intrusive. See id. (listing cooperative treatments as nonintrusive). Further, if appellant refuses to cooperate with treatment, he is not entitled to be free of consequences from that decision. Cf. Nicolaison v. Erickson, 425 N.W.2d 597, 599 (Minn. App. 1988) (holding that prison officials could remove inmate from incentive pay program for refusing to participate in voluntary treatment program).

Here, MSPPTC produced evidence that its contraband policy was reasonably related to its therapeutic interests. Appellant points to no countervailing interest other than his right to refuse treatment. However, appellant's right to refuse treatment does not equate to a constitutional right unless the treatment is intrusive. Further, appellant points to no constitutional violation as a result of his security level changes. The temporary security level changes were simply the consequences that resulted from appellant's violation of the contraband policy. In addition, appellant has produced no evidence that would overcome respondent's qualified immunity for actions taken in his official capacity as CEO of MSPPTC. See Price, 307 Minn. at 260, 239 N.W.2d at 912 (immunity applies unless plaintiff can establish that official knew he was violating constitutional rights or can establish official's malicious intent to deprive plaintiff of known constitutional right).

Finally, the district court ruled that appellant's claim of patient abuse was not ripe because he did not exhaust his administrative remedies. Appellant produced no evidence of abuse and identifies no law to support a claim of abuse under these facts. MSPPTC provides a formal grievance procedure to resolve patient complaints. To the extent that appellant's claim is based on staff erroneously subjecting him to security level changes, appellant was required to exhaust his administrative remedies before seeking judicial review. See City of Richfield v. Local Firefighters, 276 N.W.2d 42, 51 (1979) (must exhaust administrative remedies unless it would be futile).

Appellant moved for "ordered judgment" and an award of costs based on his transfer from MSPPTC to the Minnesota Security Hospital in St. Peter since the filing of this appeal. Appellant alleged (1) that the purpose of his transfer was to moot the issues on appeal and deprive this court of jurisdiction, and (2) that the transfer is an admission of patient abuse by respondent. Appellant's arguments are without merit. It appears that appellant requested a transfer and his transfer does not affect the merits of his appeal. Accordingly, we deny appellant's motion.