Raymond L. Semler, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0710

Raymond L. Semler,
Appellant,

vs.

Wendy K. McGowan, et al.,
Respondents.

Filed January 6, 2020
Affirmed
Reilly, Judge

Ramsey County District Court
File No. 62-CV-18-6461

Raymond L. Semler, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Michael N. Leonard, Assistant Attorney General, St. Paul,
Minnesota (for respondents)

Considered and decided by Reilly, Presiding Judge; Bjorkman, Judge; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Pro se appellant challenges the dismissal of his claims arising out of alleged
violations of his constitutional ri ghts while committed to the Minnesota Sex Offender
Program. Appellant asserts that the district court erred by determining that (1) some of his
claims are barred under the doctrine of collateral estoppel; (2) he did not state a viable due-

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process claim; and (3) some of his claims are barred by the doctrine of qualified immunity.
Because the district court did not err, we affirm.
FACTS
Appellant Raymond L. Semler is civilly committed to the Minnesota Sex Offender
Program (MSOP). MSOP has various facility policies in place, including a mail policy
and a policy pertaining to sending property out of the facility. MSOP’s mail policy
provides that MSOP clients are required to leave outgoing mail, excluding privileged mail,
unsealed in the “general outgoing mailbox.” Staff visua lly inspect and scan all outgoing
mail except privileged mail and read outgoing mail “if there is a reasonable suspicion the
contents constitute a risk to the safety and security of the facility, specific individuals or
the general public, or when there is a reason to believe the client or the recipient is involved
in criminal activity.” The purpose of the mail policy is to “provide procedures for
managing incoming and outgoing client mail to prevent the possible introduction of
contraband and maintain the safety and security of the facility, staff and public.”
MSOP’s policy pertaining to sending property out of the facility provides
procedures for clients to send property and personal documents out of the facility with
visitors. Mail is not included in the list of property or documents clients may send out with
visitors. Clients are required to sign a Notice and Receipt of Secured Items form (N&R
form) and bring it to special services in order to send items out with visitors. MSOP staff
document the items on the form and then place the property in a designated area. The client
receives a property tag, brings the property tag to the visit, and gives the tag to the visitors.
After the visit, an MSOP staff member retrieves the property from the designated area.

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In May and June of 2018, appellant had various items approved by MSOP staff and
documented on two separate N&R forms. Appellant intended to send the items out of the
facility with his parents when they came for a visit. Security Counselors Wendy McGowan
and Christopher Hall were posted in the visiting area on the day of appellant’s visits with
his parents. Appellant gave McGowan a property tag indicating that he had property to be
sent out with his parents. McGowan retrieved the property from the property cage and
scanned the property to ensure the items listed on the N&R forms were included.
McGowan, Officer Kevin Carlson, and Unit Director Derrick Koecher reviewed and
discussed eight of the items and determined that appellant “failed to comply with [the]
Client Mail” policy because appellant attempted to send various items of mail out of the
facility on the visit. The team decided that appellant would be issued a Major Behavioral
Expectations Report (BER) for failure to comply with the mail pol icy as well as other
misconduct. The items were secured. Appellant was informed of the BER the fol lowing
day.
Appellant a ttended his BER hearing and was allowed to present a defense.
Appellant was found in violation of MSOP policies and assigned six days of restricted
status. He appealed this decision to Assistant Facility Director Terry Kneisel, requesting
that the BER be dismissed. Kneisel affirmed the BER and restrictions . Appellant then
appealed Kneisel’s decision to the MSOP chief executive officer. MSOP Deputy Director
James Berg responded and affirmed the BER.

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In September 2018, appellant filed a complaint w ith the Ramsey County District
Court alleging that respondents-MSOP-employees,1 had violated his rights under the
United States Constitution. Specifically, appellant asserted that “ [Respondents] had no
reasonable justification or reasonable suspicion to confiscate, read, and hold [appellant’s]
mail which had already been approved by Property Staff prior to [appellant’s] visit.”
Appellant also asserted that
[Respondents] violated [appellant’s] Constitutional rights to:
(1) be free from unjustified freedom of expression
(correspondence); (2) unjustified illegal search and seizure;
(3) unjustified due process of law; (4) denial of due process of
law at the [BER] Hearing [appellant] attended, as the hearing
panel stated and held: “It did not matter that the mail was
approved to be sent out by property staff,” [appellant] was
circumventing the mail policy, and assigned [appellant] 6 days
of RS3; (5) unjustified holding of legal mail to [appellant’s]
attorney.

Finally, appellant alleged that “ [Respondents] clearly violated their own policies and
procedures without any due process of law.” Appellant requested declaratory an d
injunctive relief, equitable relief and to “enjoin future violations.”
Respondents moved to dismiss appellant’s complaint pursuant to Minn. R. Civ. P.
12.02(e), arguing that appellant’s claims should be dismissed because: they were barred by
collateral estoppel, appellant failed to state a claim for substantive or procedural due
process violations, the inspection and securing of appellant’s mail did not violate the First

1 Respondents-MSOP-employees include: Wendy K. McGowan, Christopher M. Hall,
Derrick J. Koecher, Kevin Carlson, Scott Benoit, Jaime Wuori, Steve Sajda k, Amanda
Furey, Rebecca Benson, Terry Kneisel, Cory Vargason, James Berg, and Jensina Rosen.

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or Fourth Amendments, and the respondents in their individual capacities are entitled to
qualified immunity.
The district court granted respondents’ motion to dismiss for failure to state a claim
and dismissed appella nt’s complaint with prejudice. The district court determined that :
appellant’s claims are barred by collateral estoppel, appellant failed to state a procedural
or substantive due process claim and, alternatively, respondents are entitled to qualified
immunity. This appeal follows.
D E C I S I O N
“In reviewing cases involving dismissal for failure to state a claim upon which relief
can be granted pursuant to Rule 12.02(e), the question before the appellate court is whether
the complaint sets forth a legally sufficient claim for relief.” Bodah v. L akeville Motor
Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003) (citation omitted). This court considers
“only the facts alleged in the complaint, accepting those facts as true [,] and must construe
all reasonable inferences in favor of the nonmoving party.” Herbert v. City of Fifty Lakes,
744 N.W.2d 226, 229 (Minn. 2008) (citation omitted). “When reviewing a case dismissed
pursuant to Minn. R. Civ. P. 12.02(e) for failure to state a claim on which relief can be
granted, the question before this court is whether the complaint sets forth a legally
sufficient claim for relief.” Id. (citation omitted).
I. The district court did not err when it concluded that some of appellant’s
claims are barred by collateral estoppel.

Appellant appears to argue that collateral estoppel does not apply to his claims
because the issues are not identical to those previously litigated. “Collateral estoppel, also

6
known as issue preclusion, prohibits a party from relitigating issues that have been
previously adjudicat ed.” Barth v. Stenwick , 761 N.W.2d 502, 507 (Minn. App. 2009).
Collateral estoppel will bar the relitigation of an issue when:
(1) the issue is identical to one in a prior adjudication; (2) there
was a final judgment on the merits in the prior proceeding ;
(3) the estopped party was a party or in privity with a party to
the prior adjudication; and (4) the estopped party was given a
full and fair opportunity to be heard on the adjudicated issue.

Id. at 508. “A basic prerequisite to the application of col lateral estoppel is that the issue
now involved is identical to one previously litigated.” Id. at 509. “For collateral-estoppel
purposes, issues are identical when the issues presented by [the current] litigation are in
substance the same as those resolved in the previous litigation.” All Finish Concrete, Inc.
v. Erickson, 899 N.W.2d 557, 567 (Minn. App. 2017) (quotation and citation omitted) .
“Whether collateral estoppel precludes litigation of an issue is a mixed question of law and
fact that we revie w de novo.” Hauschildt v. Beckingham , 686 N.W.2d 829, 837 (Minn.
2004). Because appellant only challenges the district court’s determinations that the issues
in the present litigation are identical to those in a prior adjudication, we only consider the
first element of the collateral-estoppel analysis on appeal.2

2 Though appellant does not contest being a party to the prior adjudications relied on by
the district court, we note that a ppellant was the plaintiff in Semler v. Ludeman, No.
A08-1123, 2009 WL 19 19302 (Minn. App. July 7, 2009) (Semler 2009 ) and Semler v.
Ludeman, No. 09-cv-732 (ADM/SRN), 2010 WL 145275 (D. Minn. Jan. 8, 2010) (Semler
2010), and part of the class of plaintiffs in Karsjens v. Piper, 336 F. Supp. 3d 974 (D. Minn.
2018). In all three cases, appellant challenged the constitutionality of various MSOP
policies.

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With respect to appellant’s First Amendment claim, the district court concluded
that the first element was satisfied because appellant’s current complaint raised the same
First Amendment issues as previous litigation in which he was one of the plaintiffs. The
district court relied on Karsjens. In Karsjens, the plaintiffs challenged MSOP’s mail
policy, arguing that the “policies infringe their speech and association rights under the First
Amendment.” 336 F.Supp.3d at 994. The Karsjens court concluded that the plaintiffs
“failed to raise a genuine dispute over whether Defendants’ policies implicating speech and
association are an unreasonable restriction on Plaintiffs’ First Amendment rights as applied
to the Class as a whole” and granted summary judgment in favor of defendants. Id. In the
present matter, appellant argued that by enforcing MSOP policies, the respondents violated
his rights under the First Amendment because he “has a Constitutional right to correspond
with whomever he wishes.” The First Amendment issue in Karsjens is substantively the
same as the current First Amendment issue. The district court did not err when it concluded
that the issue litigated in Karsjens is the same as the issue in the present case.
With respect to appellant’s Fourth Amendment claim, the district court concluded
that the first element was satisfied regarding appellant’s “contention that the mail policy
violated his Fourth Amendmen t right against unreasonable searches and seizures.” The
district court relied on Semler 2010, which considered whether MSOP’s room search policy
violated the Fourth Amendment. 2010 WL 145275, at *1. The district court noted that
while the facts in Semler 2010 were different from the present case, the substantive i ssue
was the same. We conclude that the district court erred in this regard. Appellant’s prior
claim that MSOP staff violated his Fourth Amendment rights when they conducted random

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room searches is not substantively the same as the current issue of whether respondents
violated appellant’s Fourth Amendment rights when they inspected his outgoing mail.
However, even if the district court did err in its analysis, we conclude that the error i s
harmless.
In Semler 2010, the court considered various Fourth Amendment claims regarding
MSOP search policies, including policies requiring clients to submit to pat searches
following gym use and kitchen work, unclothed visual body searches after contact visits,
and random room searches for suspected contraband. Id. at *16. The court applied Bell v.
Wolfish, which requires consideration of “the scope of the particular intrusion, the manner
in which [the search] is conducted, the justification for initiating it, and the place in which
it is conducted,” while also taking into account “the expert judgment” of officials adopting
and implementing the policies at issue. 441 U.S. 520, 548, 559, 99 S. Ct. 1861, 1879, 1884
(1979). The Semler 2010 court ultimately concluded that based on its consideration of the
Bell factors and the government’s interest in institutional security, MSOP’s various search
policies are reasonable and do not violate MSOP clients’ Fourth Amendment rights. 2010
WL 145275, at *22. This same reasoning applies to appellant’s present Fourth Amendment
claim regarding searches of his mail, as mail searches pursuant to MSOP’s mail policy are
likewise reasonable under the Bell analysis. The scope of the intrusion into client mail is
limited, the searches are conducted pursuant to MSOP policy, and are justified by MSOP’s
need for facility security. As such, while the district court erred in concluding that the issue
in Semler 2010 and the current case are identical for purposes of collat eral estoppel, we

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conclude that this error is harmless because Bell is dispositive of the l egal issue in the
present case. See Minn. R. Civ. P. 61 (requiring court to disregard harmless error).
With respect to appellant’s Fourteenth Amendment claim, the district court
concluded that collateral estoppel precluded appellant’s claim that “MSOP’s mail policy
violated his rights under the Fourteenth A mendment” because the same Fourteenth
Amendment issue was litigated in Semler 2009 . In Semler 2009, this court considered
appellant’s challenges to actions taken with his non -legal outgoing mail. 2009 WL
1919302, at *3. Appellant claimed that his mail was being “opened, searched, scanned,
read, and copied.” Id. at *2. We noted that appellant “frequently invoked the due-process
clause in his complaint” and other papers. Id. at *4. We then noted that mailroom
procedures are sufficient if “the institution g ave notice when mail wa s rejected, gave the
inmate a reasonable opportunity to protest, and referred c omplaints to a prison official
‘other than the person who originally disapproved the correspondence.’” Id. (citation
omitted). We concluded that the requirements of due process were met because appellant
was informed of interferences with his mail and ap pellant utilized the MSOP internal
grievance procedure. Id.
In the case at hand, appellant alleged that respondents, “implemented, retained and
carried out policies through the MSOP that violated [appellant’s] . . . Fourteenth
Amendment (Due process, Procedural Due Process and Substantive Due Process) rights. ”
Appellant appears to again challenge MSOP’s practice of scanning, reading, and
confiscating his mail, and again contends that MSOP’s mail policy violates his rights under

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the Fourteenth Amendment. The same issue was considered and decided in Semler 2009.
The district court did not err in so concluding.

II. The district court did not err when it concluded that appellant failed to
state a claim for relief based on alleged violations of his procedural and
substantive due-process rights.

a. Procedural Due Process

Appellant argues that his procedural due -process rights were violated because he
was “arbitrarily punished” for attempt ing to send mail out on a visit when he had been
allowed to do so for the previous 13 years. “Procedural due process imposes constraints
on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests
within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”
Mathews v. Eldridg e, 424 U.S. 319, 332 , 96 S. Ct. 893, 901 (1976). “To establish the
existence of a procedural due process violation, a plaintiff must first show that he had a
liberty or property interest and that state action deprived him of that protected interest.”
Phillips v. State , 725 N.W.2d 778, 782 (Minn. App. 2007). The government has no
constitutional obligation to provide due process where no protected interest exists. Id.
“Whether the government has violated a person’s procedural due process rights is a
question of law that we review de novo.” Sawh v. City of Lino Lakes , 823 N.W.2d 627,
632 (Minn. 2012).
In his complaint, appellant asserted that “ [respondents] clearly violated their own
policies and procedures without any due process of law.” First, appellant failed to establish
that a protected interest existed because there is no protected interest for an institution’s

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breach of its own policy. See Phillips, 725 N.W.2d at 783 (stating that a university’s
“failure to follow its procedural rules and r egulations does not, by itself, give rise to a
protected property or liberty interest”).
Moreover, due process requires “notice and an opportunity to be heard at a
meaningful time and in a meaningful manner.” Sawh, 823 N.W.2d at 632 (quotation
omitted). Even if appellant could establish a protected interest, appellant was afforded both
notice and an opportunity to be heard regarding the BER. In his complaint, appellant noted
that he was given a BER regarding the incident on June 24, 2018 , after he attemp ted to
send mail out on a visit. The BER informed appellant of his alleged violations of MSOP
policies. Appellant was then afforded a hearing on the BER on June 28, 2018, where
appellant was allowed to present his defense. Appellant subsequently appeale d the
decision on July 1, 2018 and again on July 5, 2018. Appellant was provided both notice
and a meaningful opportunity to be heard. The district court did not err when it dismissed
appellant’s procedural-due-process claim.
b. Substantive Due Process
Appellant argues that he was denied substantive due process when he received a
BER after he attempted to send mail out on a visit. “A cognizable claim of a Fourteenth
Amendment substantive due process violation must describe governmental conduct so
egregious that it shocks the conscience.” Mumm v. Mornson, 708 N.W.2d 475, 487 (Minn.
2006) (quotation omitted). “Only the most extreme instances of governmental misconduct
satisfy this exacting standard.” Id.

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After reviewing appellant’s complaint, w e conclude t hat non e of respondents’
actions amount to “egregious” conduct that “shocks the conscience.” MSOP staff followed
facility policies and procedures, none of which have been found to violate the rights of
MSOP clients. The district court did not err when it dismissed appellant’s substantive-due-
process claims.
III. The district court did not err when it concluded that some of appellant’s
claims are barred by qualified immunity.

Appellant argues that the district court erred when it determined that respondents
are entitled to qualified immunity. “Qualified immunity protects government officials
performing discretionary functions . . . from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Williams v. Bd. of Regents of Univ. of Minn., 763
N.W.2d 646, 654 (Minn. App. 2009). To determine whether qualified immunity applies,
courts first consider whether the plaintiff has alleged facts showing th e viola tion of a
constitutional right and second, whether this right was “clearly established” at the time of
the alleged violation. Pearson v. Callahan , 555 U.S. 223, 232, 129 S. Ct. 808, 815 -16
(2009). “By focusing on the objective reasonableness of an official’s conduct, as measured
by reference to clearly established law, the test for qualified immunity is intended both to
avoid excessively disrupting government functioning and to deter unlawful conduct.”
Simmons v. Fabian , 743 N.W.2d 281, 286 (Minn. App. 2007) (quotation omitted).
Qualified immunity protects “all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096 (1986).

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Respondents, in their individual capacities, raised qualified immunity as a defense
to appellant’s complaint. The district court determined that (1) there was “no known
constitutional or statutory right that prevents [respondents] . . . from inspecting and
retaining outgoing mail for investigative purposes pursuant to the mail policy”; (2) there
was no “clearly established statutory or constitutional right that prohibits all [respondents]
from complying and ordering [appellant] to comply with the mail policy”; and (3) that the
respondents “acted reasonably,” “followed MSOP procedure,” and would not have known
their actions were unlawful.
We are not aware of any “clearly established law” prohibiting MSOP officials from
inspecting and retaining outgoing mail for investigative purposes or prohibiting MSOP
officials from complying with and ordering appellant to comply with the MSOP mail
policy. And appellant does not provide any legal authority establishing such prohibitions.
The district court did not err when it concluded that respondents did not knowingly violate
any “clearly established law” and that respondents’ actions were not objectively
unreasonable.
Affirmed.