Merryfield v. Howard

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 31, 2024
• Docket: 23-3060
• Status: Unpublished

Opinion

Appellate Case: 23-3060 Document: 010110992775 Date Filed: 01/31/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 31, 2024 _________________________________ Christopher M. Wolpert Clerk of Court DUSTIN J. MERRYFIELD,

Plaintiff - Appellant,

v. No. 23-3060 (D.C. No. 5:21-CV-03255-DDC-KGG) LAURA HOWARD; TONYA TAYLOR; (D. Kan.) MARC QUILLEN; STACEY PAIGE; HALEIGH BENNETT; MARSHAL NEWELL; JANE AND JOHN DOES,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges. _________________________________

The Kansas Sexually Violent Predator Act (the Act) permits involuntary civil

commitment of sexually violent predators. See Kan. Stat. Ann. § 59-29a01.

Appellant Dustin J. Merryfield has been involuntarily committed under the Act since

the year 2000.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-3060 Document: 010110992775 Date Filed: 01/31/2024 Page: 2

In November 2021, Merryfield filed a pro se complaint in the United States

District Court for the District of Kansas. Invoking 42 U.S.C. § 1983, he accused

various persons of violating his property and liberty interests in various ways, such as

by depriving him of possessions and denying him the opportunity to solicit a pen pal.

The parties stipulated to a set of facts, and the defendants then moved for judgment

on the pleadings. The district court granted that motion and entered judgment in the

defendants’ favor.

Merryfield now appeals. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

I. STANDARD OF REVIEW

We review de novo a district court’s order granting judgment on the pleadings,

and we apply the same standards as we would when reviewing an order dismissing

for failure to state a claim. See Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d

1219, 1223 (10th Cir. 2009).

II. ANALYSIS

A. The State’s Refusal to Return Merryfield’s Hot Pots

Since his commitment, Merryfield has resided most of the time at the Larned

State Hospital. In 2018 and 2019, however, he resided at a different state hospital.

When he was transferred back to Larned in August 2019, he was not allowed to keep

his hot pots. He administratively grieved this action and received a favorable

decision, but his hot pots have not been returned to him.

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The district court ruled that the statute of limitations for this claim was two

years, and that the claim accrued in August 2019, when the property was first taken.

Thus, Merryfield’s lawsuit, filed in November 2021, was too late to assert this claim.

On appeal Merryfield does not challenge this reasoning. He instead argues the

district court failed to make any ruling about his hot pots. He is mistaken—the

district court ruled that the statute of limitations bars the claim. Given Merryfield’s

lack of argument about the statute of limitations, we affirm the district court’s

dismissal of this claim. See Nixon v. City & Cnty. of Denver, 784 F.3d 1364, 1369

(10th Cir. 2015) (affirming dismissal of a claim when the “opening brief contain[ed]

nary a word to challenge the basis of the dismissal”).

B. Policy 8.6 and Due Process

Merryfield also argues that the district court failed to rule on a claim

challenging a hospital policy known as Policy 8.6. Our review of the record shows

the fault lies with Merryfield, not the district court.

The Act declares a set of rights for persons committed as sexually violent

predators, see Kan. Stat. Ann. § 59-29a22(b), and requires the Kansas secretary for

aging and disability services to “establish procedures to assure protection of persons’

rights guaranteed under this section,” id. § 59-29a22(d). In his complaint, Merryfield

alleged that the secretary delegated this responsibility to administrators at the Larned

hospital, who in turn promulgated Policy 8.6. The policy says that it “establishes a

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procedure to afford residents an opportunity to request and receive due process when

a resident’s right(s), as provided in [the Act], are denied or restricted.” R. at 62.1

Merryfield tells us that, through his complaint, he “requested the District Court

find Policy 8.6 and its hearing procedure to be a violation of his Constitutional

rights.” Aplt. Opening Br. at 5. He says he raised a claim “that Policy 8.6 is

unconstitutional on its face and as applied,” presumably under the Due Process

Clause. Id. at 8. But, he says, the district court never ruled on that claim.

Merryfield is correct that the district court never ruled on any facial or

as-applied challenge to Policy 8.6, but that is because he did not adequately raise the

issue. Merryfield is entitled to a liberal construction of his pleadings, see Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and his complaint pointed out

perceived flaws in Policy 8.6. But if he meant to seek relief based on a constitutional

defect, that intention was obscured by the peculiar organization and language of the

complaint. Moreover, the defendants’ motion for judgment on the pleadings asked

for judgment “on each of [Merryfield’s] claims,” R. at 66, and requested the district

court to dismiss Merryfield’s claims “in their entirety,” R. at 81. Yet not until this

appeal did he point out that “[t]he Motion for Judgment on the Pleading[s] [did] not

contain a request to dismiss the claim that Policy 8.6 is unconstitutional on its face

and as applied.” Aplt. Opening Br. at 8. He did not alert the district court to this

omission, failing to inform the district court that the defendants’ motion, although

1 All “R.” cites are to volume I of the record. 4 Appellate Case: 23-3060 Document: 010110992775 Date Filed: 01/31/2024 Page: 5

intended to cover all claims, failed to mention one of them. Rather, his response

brief invoked Policy 8.6 in support of other arguments, including arguments

seemingly inconsistent with a claim that the policy is unconstitutional. See, e.g.,

R. at 111–12 (asserting that Policy 8.6 creates an enforceable liberty interest and

failure to follow it is “shocking and intolerable conduct”). In these circumstances we

hold that the district court did not err in failing to address the issue. Cf. Muskrat v.

Deer Creek Pub. Sch., 715 F.3d 775, 791 (10th Cir. 2013) (“[I]f [plaintiffs] had all

along been intending to prove their case under [a more lenient] standard, we cannot

understand why they did not at least mention that standard at summary judgment. At

a minimum, one would expect a statement such as, ‘Notably, Defendants do not

argue that their conduct satisfies the [alternative] standard.’”).

C. Request to Solicit a Pen Pal

The district court ruled that the defendants’ denial of Merryfield’s request to

solicit a pen pal failed to create a constitutional claim because the defendants’ actions

were not excessive in relation to the purposes of Merryfield’s confinement, nor did

the defendants impose an atypical or significant hardship. See Bell v. Wolfish, 441

U.S. 520, 561 (1979) (liberty restrictions on pretrial detainees may not be “excessive

in relation to [a legitimate nonpunitive governmental] purpose”); Sandin v. Conner,

515 U.S. 472, 484 (1995) (restraints on convicted prisoners may not “impose[]

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atypical and significant hardship on the inmate in relation to the ordinary incidents of

prison life”).2

Merryfield says the district court granted the defendants qualified immunity on

this claim because he had failed to show clearly established law. He argues this was

error, but he argues against a ruling the district court never made.

“Qualified immunity shields federal and state officials from money damages

unless a plaintiff pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was clearly established at the time of the

challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal

quotation marks omitted). The defendants invoked qualified immunity, and the

district court held that Merryfield “failed to shoulder his burden under the first prong

of the qualified immunity test,” R. at 165 (emphasis added). This ruling applied to

all claims, not just the pen-pal claim. In any event, the district court never said

Merryfield failed to show clearly established law as to his pen-pal claim.

Because Merryfield does not address the district court’s reasons for dismissing

his pen-pal claim, we affirm that dismissal. See Nixon, 784 F.3d at 1369.3

2 The district court applied these standards while recognizing that Merryfield’s status is somewhere in between traditional civil commitment and traditional imprisonment. 3 Merryfield’s claim that the procedural rights granted under the Act clearly establish the due-process right that the defendants allegedly violated fails for the same reason. The district court never ruled that the right was not clearly established. It ruled only that Merryfield had not stated a federal due-process claim. 6 Appellate Case: 23-3060 Document: 010110992775 Date Filed: 01/31/2024 Page: 7

D. Lost Mail

In February 2021, Larned staff seized two pieces of mail addressed to

Merryfield and sent them to his therapist. Merryfield alleged that his therapist told

him she never received those pieces of mail, and now Larned cannot locate them. He

therefore claimed that the defendants violated his right to receive mail (apparently

referring to a First Amendment right). The district court ruled that Merryfield failed

to state a claim because his allegations showed no more than nonactionable

negligence.

Merryfield appears to argue that his rights under the Act, and policies

promulgated under the Act, necessarily mean the defendants’ conduct was deliberate,

not negligent. Because we do not see how these authorities dictate that the

defendants possessed a certain state of mind, we reject this argument.

Merryfield also claims he cannot access unpublished decisions cited by the

district court. But the district court’s analysis was sound regardless of these

unpublished decisions. We therefore affirm the district court’s disposition of this

claim.

E. Access to the Courts

Merryfield’s complaint alleged that the administrative grievance process at his

facility is sometimes never completed, thus violating his First Amendment right to

access the courts. The district court ruled that the grievance procedures in question

were not a prerequisite to filing a § 1983 suit, and, in any event, exhaustion would be

excused if prison officials were thwarting the administrative remedy process. Thus,

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Merryfield had not alleged any actual injury, so he failed to state an access-to-courts

On appeal, Merryfield does not challenge this reasoning. Rather, he offers two

new arguments. First, he says that the district court’s dismissal of some of his claims

on statute-of-limitations grounds shows he suffered an access-to-courts violation. He

apparently means to say he could not file suit earlier because he was waiting for the

grievance process to end. Second, he claims the maladministration of the grievance

process “prevents him from ever having the State Court review whether he is being

abused or not.” Aplt. Opening Br. at 21. Because he never presented these

arguments to the district court, they are forfeited, see Schrock v. Wyeth, Inc.,

727 F.3d 1273, 1284 (10th Cir. 2013), and we affirm the district court’s dismissal of

the access-to-courts claim.

F. Dismissal of Defendant Howard

The first-named defendant is Laura Howard, secretary of the Kansas

department of aging and disability services, who is the legal custodian of persons

committed under the Act, see Kan. Stat. Ann. § 59-29a07(a). The district court held

that Howard is immune from suit under the Eleventh Amendment to the extent

Merryfield sues her for damages in her official capacity, and that Merryfield failed to

state a claim against her for damages in her individual capacity because he failed to

allege personal participation in any of the underlying events.

Merryfield challenges the Eleventh Amendment ruling (although not

the personal-participation ruling), claiming it contradicts an unpublished Kansas

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state-court decision about whether the department secretary was a proper defendant

in a § 1983 lawsuit. Because we affirm the district court’s dismissal on the merits of

all Merryfield’s causes of action, however, any claim against Howard must also fail

even if she was a proper defendant.

III. CONCLUSION

We affirm the district court’s judgment.

Entered for the Court

Harris L Hartz Circuit Judge