Opinion
Civil Action No. 12-12163-DPW
09-30-2014
DAVID LYNN MEADOR, Plaintiff, v. THE COUNSELING AND PSYCHOTHERAPY CENTER, INC. Defendant.
MEMORANDUM AND ORDER
The plaintiff, a convicted sex offender convicted in North Dakota for failure to register, brings this action challenging certain conditions of his probation. The defendant is a service provider that contracts with the State of North Dakota to provide services for high risk sexual offenders. I will grant the motion (#35) for summary judgment of the defendant and deny those (##32 and 20) of the plaintiff.
The short and sufficient answer to the plaintiff's action is that the defendant is not a state actor as required in a civil rights action under 42 U.S.C. § 1983. It is long settled that in carrying out and being charged to carry out in a discretionary fashion services required under a probationary directive, a service provider such as the defendant is not transmuted into a state actor. See generally Rendall-Baker v. Kohn, 457 U.S. 830, 839-43 (1982).
Nor is there any substantial claim of constitutional violation, even if the defendant - and not the State of North Dakota - were considered to be the relevant state actor. I am of the view that neither the use of a polygraph nor the particular form of supervision about which the plaintiff seems most apprehensive, the potential use of a penile plethysmograph for monitoring, is categorically unconstitutional when considered in the context of supervision of offenders. Cf. Berthiaume v. Caron, 142 F.3d 12, 17-18 (1st Cir. 1998) (questioning Almy v. Harrington, 977 F.2d 37 (1st Cir. 1992) (Woodlock, J. for the court)).
In any event, concerns about the propriety of conditions of supervision are properly addressed in the first instance to the court imposing a criminal sentence. Absent a final determination of the judgment of conviction favorable to the plaintiff here, it is inappropriate to entertain what is in essence a collateral attack on that judgment. Cf. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Accordingly, the defendant's motion for summary judgment (#35) is hereby GRANTED and the plaintiff's motions for summary judgment (##32 & 20) are DENIED.
/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT