A21-0043

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0042
A21-0043

Ricky Lee McDeid,
Appellant (A21-0042),

Shane P. Garry,
Appellant (A21-0043),

vs.

Nancy Johnston,
CEO/Director, Minnesota Sex Offender Program, et al.,
Respondents.

Filed August 2, 2021
Affirmed
Reyes, Judge

Ramsey County District Court
File No. 62-CV-19-8232

Roxanna V. Gonzalez, Dorsey & Whitney LLP, Minneapolis, Minnesota; and

Andrew J. Pieper, Stoel Rives LLP, Minneapolis, Minnesota (for appellants)

Keith Ellison, Attorney General, Aaron Winter , Assistant Attorney General, St. Paul,
Minnesota (for respondents)

Considered and decided by Bjorkman, Presiding Judge; Larkin, Judge; and Reyes,
Judge.

2
NONPRECEDENTIAL OPINION
REYES, Judge
In these consolidated appeals, appellants, who are civilly committed sex offenders,
challenge the district co urt’s immunity-based dismissal of their procedural du e-process
claims for damages . They argue that respondents-officials are not entitled to qualified
immunity because appellants have a constitutionally protected liberty interest in a transfer
to community preparation services (CPS) within a reasonable time of a commitment appeal
panel (CAP) order approving the transfer. Because such a right was not clearly established
under law at the time of these alleged violations, we affirm.
FACTS
Appellants Ricky Lee McDeid and Shane P. Garry were civilly committed to the
Minnesota Sex Offender Program (MSOP) in 1999 and 2012, respe ctively. Appellants
petitioned the Minnesota commitment appeal panel (CAP) 1 for transfer to community
preparation services (CPS), a less-restrictive facility “designed to assist civilly committed
sex offenders in developing the appropriate skills and res ources necessary for an eventual
successful reintegration into a community.” Minn. Stat. § 246B.01, subd. 2a (2020).
The CAP granted McDeid’s and Garry’s “petition[s] for transfer to a less restrictive
facility (CPS)” on September 21, 2017 and January 24, 2018, respectively. The orders

1 We refer to the entity formerly known as the supreme court appeal panel or statutorily as
the judicial appeal panel as the CAP. See Minn. S tat. § 253D.28, subd. 1(a) (2020 )
(providing for rehearing and reconsideration by “the judicial appeal panel established under
section 253B.19, subdivision 1”); Minn . Stat. § 253B.19, subd. 1 (2020 ) (providing that
“[t]he supreme court shall establish an appeal panel”).
3
stayed entry of judgment for 15 days but did not specify a deadline for the transfers. No
party appealed the CAP’s orders.
On November 20, 2019, appellants, who still awaited transfer, initiated an action in
district court against respondents -officials Nancy Johnston, CEO/Director of MSOP, and
Jodi Harpstead, commissioner of the department of human services, in their individual and
official capacities. The complaints alleged that respondents’ failure to transfer appellants
in a timely manner violated their due-process rights under the Fourteenth Amendment of
the United States Constitution and 42 U.S.C. § 1983, and requested damages . Also on
November 20, 2019, appellants petition ed the district court for writs of mandamus to
compel respondents to comply with the CAP’s orders to transfer appellants to CPS.
On December 11, 2019, approximately 796 days from the effective date of the CAP
order, MSOP transferred McDeid to CPS. On July 29, 2020, approximately 902 days after
the effective date of the CAP order, MSOP transferred Garry to CPS.
Neither appellant sought review from this court of the petitions for writs of
mandamus as MSOP transferred them by the time of the district court’s order dismissing
the complaints. Respondents moved to dismiss the complaints for failure to state a claim
upon which relief can be granted under Minn. R. Civ. P. 12.02(e), asserting that they were
entitled to qualified immunity . The district court granted respondents’ motions ,
determining that, although appellants sufficiently pleaded a due-process violation based on
respondents’ failure to transfer them to CPS within a reasona ble time , respondents are
nevertheless entitled to qualified immunity. This appeal follows.

4
DECISION
Appellants argue that the district court erred by concluding that respondents are
entitled to qualified immunity because appellants had a clearly established right at the time
of the alleged violations to be transferred to CPS within a reasonable time of the CAP
orders granting their transfer. We disagree.
When reviewing a case dismissed pursuant to Minn. R. Civ. P. 12.02(e) for failure
to state a claim upon which relief can be granted, we review the legal sufficiency of the
claim de novo to determine “whether the complaint sets forth a legally sufficient claim for
relief.” Hebert v. City of Fifty Lakes, 744 N.W.2d 226, 229 (Minn. 2008).
The applicability of immunity is a legal question that we review de novo. Mumm v.
Mornson, 708 N.W.2d 475, 483 -84 (Minn. 2006) . An o fficial’s conduct is subject to
qualified immunity if it “does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S. Ct. 2727, 2738 (1982). 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). “[Q]ualified immunity questions should be resolved at
the earliest possible stage to shield [officials] from disruptive effects of broad -ranging
discovery and effects of litigation. ” Elwood v. Rice Cty. , 423 N.W.2d 671, 675 (Mi nn.
1988). To determine the applicability of qualified immunity, courts consider a two-prong
test: (1) whether the plaintiff alleged facts showing the violation of a statutory or
constitutional right and (2) whether the plaintiff had a right “clearly established” at the time
5
of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 231-32, 129 S. Ct. 808, 815-
16 (2009).
Under the first prong, the district court concluded that a ppellants alleged sufficient
facts showing the violation of a statutory or constitutional right. Specifically, the district
court reasoned that appellants had a legitimate claim of entitlement to transfer to CPS upon
a final CAP order. The district court noted that appell ants alleged that respondents
effectively ignored the CAP order by failing to transfer them to CPS for 796 days and 902
days, an unreasonable period of time. Citing Kropp, a case involving a CAP order for
provisional discharge in which this court held tha t respondents lack authority to grant or
deny discharge petitions, the district court concluded that respondents could not disobey a
CAP order. [Id.] See In re Civil Commitment of Kropp, 895 N.W.2d 647, 652 (Minn. App.
2017) (noting that executive direct or cannot unilaterally prevent provisional discharge
pending an appeal despite CAP’s grant), review denied (Minn. June 20, 2017).
Assuming without deciding that appellants alleged sufficient facts showing
violation of a statutory or constitutional right, we are not persuaded that a ppellants had a
clearly established right to transfer to CPS within a reasonable time of a final CAP order
at the time of the alleged violations.
Whether appellants had a clearly established right at the tim e of the alleged
violations is a legal question that we review de novo. See Mumm, 708 N.W.2d at 483-84
(Minn. 2006) (stating that whether law regarding right is “clearly established is a legal
question for the court”). Conduct violates clearly established law when “the contours of a
right are sufficiently clear [such] that every reasonable official would have understood that
6
what [they are] doing violates that right.” Ashcroft v. al -Kidd, 563 U.S. 731, 741, 131
S. Ct. 2074, 2083 (2011) (quotations omitted). While we do not require a case directly on
point, “existing precedent must have placed the statutory or constitutional question beyond
debate.” Id. (citing Malley, 475 U.S. at 341 , 106 S. Ct. at 1096) . The United States
Supreme Court has repeatedly directed courts “not to define clearly established law at a
high level of generality ” but rather focus on “whether the violative nature of particular
conduct is clearly established.” Mullenix v. Luna , 577 U .S. 7, 12, 136 S. Ct. 305, 308
(2015) (quotation omitted) (noting that “[t] his inquiry must be undertaken in light of the
specific context of the case, not as a broad general proposition” (quotations omitted)).
Appellants rely on two federal criminal cases for the proposition that a person’s
right to be transferred within a reasonable time of a CAP order was clearly established law
at the time of these violations. First, in Slone v. Herman, the plaintiff-prison inmate argued
that several probation, parol e board, and corrections -department officials violated his
constitutional rights by not releasing him until eight months after the sentencing order
granting release became final and nonappealable . 983 F.2d 107, 108-09 (8th Cir. 1993).
The Eighth Circuit held that prison officials who fail to release an inmate after a court order
suspending the inmate’s sentence becomes final and nonappealable are not protected by
qualified immunity, reasoning that o nce the order “became final and nonappealable, the
state lost its lawful authority to hold Slone.” Id. at 110.
Second, in Walters v. Grossheim, a federal district court ordered officials to transfer
a prison inmate to a less -restrictive setting, from a Level III setting to a Level IV setting .
990 F.2d 381, 384 (8th Cir. 1993). The district court did not stay the resulting judgment.
7
State officials requested that the judgment be set aside and refused to transfer the inmate
for over two months. Id. at 383. The Eighth Circuit concluded that the officials’ failure to
comply with an unstayed judgment violated clearly established law and that therefore, the
officials were not protected by qualified immunity. Id. at 384. “Any reasonably competent
official must know that unless a judgment has been stayed, it must be obeyed.” Id.
There are key differences between this case and the federal criminal cases on which
appellants rely. First, Slone is distinguishable because the state officials no longer had
authority to hold the incarcerated person, whereas here, respondents retained the authority
to hold appellants. Second, Walters is distinguishable because the officials moved to set
aside the order granting the transfer and refused to transfer Walters pending the decision
on the motion despite an unstayed order. Here, respondents did not appeal the CAP order
or otherwise indicate refusal to transfer appellants.
Appellants assert that Slone and Walters stand for the broad proposition that “once
an order is effective and final it cannot be disregarded by officials.” But as noted above, a
clearly established right focuses on the particular conduct, not a broad, general proposition.
Mullenix, 577 U.S. at 12, 136 S. Ct. at 308. The parties do not cite to, nor are we aware of,
any precedential authority clearly establishing a constitutional or statutory right for a civilly
committed sex offender to be transferred to CPS within a reasonable time of a final CAP
order. See Simmons v. Fabian, 743 N.W.2d 281, 290 n.5 (Minn. App. 2007) (noting that
federal opinions on qualified immunity in section 1983 cases are persuasive, but only
decisions of Minnesota Supreme Court and United States Supreme Court are binding on
this court).
8
Moreover, our caselaw recognizes differences between the civil -commitment and
criminal contexts, and this nonbinding federal caselaw in the criminal context did not place
the statutory or constitutional question “beyond debate” at the time of the violations.
Ashcroft, 563 U.S. at 741, 131 S. Ct. at 2083; see In re Linehan, 594 N.W.2d 867, 871-72
(Minn. 1999) (noting that civil commitment in context of Minnesota Sexually Dangerous
Person Act differs fundamentally from criminal confinement because it does not share two
primary objectives: punishment and deterrence) ; see also Kansas v. Hendricks , 521 U.S.
346, 347, 117 S. Ct. 2072 , 2075 (1997) (holding that civil confinement does not violate
Double Jeopardy clause because it does not amount to a second prosecution or punishment
for convicted offense); see also In re Civil Commitment of Martin, 661 N.W.2d 632 (Minn.
App. 2003) (“Protections against double jeopardy are not implicated by the [sexually
dangerous person] Act, because the purpose of commitment under the [sexually dangerous
person act] is treatment and not punishment”), review denied (Minn. Aug. 5, 2003). “[T]he
procedural protections afforded in a criminal commitment surpass those in a civil
commitment.” Foucha v. Louisiana , 504 U.S. 71, 95, 112 S. Ct. 1780, 1793 (1992)
(Kennedy, J., dissenting) (citing Jones v. United States , 463 U.S. 354, 103 S. Ct. 3043
(1983)). Thus, nonbinding federal caselaw in the criminal context did not place the
statutory or constitutional question in this case “beyond debate” at the time of the alleged
violations.
As to the applicable state law, we note that the statutes governing transfers of civilly
committed sex offenders to CPS do not articulate when an official must implement a CAP
order granting transfer. See Minn. Stat. § 253B.19, subd. 3 (2020) (stating that CAP order
9
becomes effective no sooner than 15 days after issuance but providing no deadline for
implementation). We also note that the parties do not cite to, nor are we aware of, any
precedential or even nonprecedential authority discussing a civilly committed sex
offender’s right to transfer to CPS within a reasonable time of a final CAP order granting
transfer. Finally, we observe that the CAP orders here, like the statutes governing transfer
to CPS, were silent on when respondents must transfer appellants to CPS. The CAP orders
here merely state that transfer “is appropriate” and that the judgment is stayed for 15 days.
Under the particular facts of this case, absent clear guidance from statutory authority
or precedential caselaw, we are not convinced that Slone, Walters, or any other authority
clearly established a civilly committed sex offender’s right to be transferred to CPS within
a “reasonable time ” of a final CAP order at the time of these alleged violations.2 The
applicability of nonprecedential federal criminal caselaw in this civil-commitment context
was not so clearly established at the time of the alleged vio lations such that a reasonable
official would have known that the delay in transferring appellants was unlawful. Ashcroft,
563 U.S. at 741, 131 S. Ct. at 2083 . Respondents are therefore entitled to qualified
immunity.
Affirmed.

2 We reach this conclusion, nevertheless, with significant concern about the delays of these
transfers and the challenges to effecting timely transfer to CPS.