                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0141


                                 David Leroy Gamble,
                                      Appellant,

                                          vs.

                              Emily Johnson Piper,
                          Commissioner of Human Services,
                                   Respondent.


                                 Filed June 27, 2016
                                      Affirmed
                                  Halbrooks, Judge


                            Ramsey County District Court
                             File No. 62-MH-PR-09-479

Mary Margaret Huot, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, Kelly Meehan, Assistant Attorney General, St. Paul,
Minnesota; and

John J. Choi, Ramsey County Attorney, Stephen P. McLaughlin, Assistant County
Attorney, St. Paul, Minnesota (for respondent)

      Considered and decided by Halbrooks, Presiding Judge; Cleary, Chief Judge; and

Smith, John, Judge.




 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                        UNPUBLISHED OPINION

HALBROOKS, Judge

       Appellant challenges the judicial appeal panel’s order denying and dismissing his

petition for full discharge from civil commitment as a sexually dangerous person (SDP).

Because we conclude that appellant has not met his burden of production under the

statutory requirements, we affirm.

                                            FACTS

       Appellant David Leroy Gamble was committed to the Minnesota Sex Offender

Program (MSOP) on December 15, 2009 and signed a stipulation on May 25, 2010,

agreeing, in the presence of counsel, to an initial and final judicial commitment as an

SDP.    In July 2013, Gamble petitioned the special review board for transfer to

community preparations services, provisional discharge, or full discharge from civil

commitment. In December 2013, Gamble amended his petition to request full discharge

only, arguing that (1) he does not meet the criteria for involuntary civil commitment

because he has no mental illness or severe personality disorder, (2) he is at “an extremely

low percentage rate to recidivate,” and (3) additional factors and mitigating

circumstances warrant his release.

       After a hearing, the special review board recommended that Gamble’s petition for

full discharge be denied, concluding that

              Mr. Gamble is not capable of making an acceptable
              adjustment to open society in accordance with the factors
              provided under Minnesota Statutes section 253B.185,
              subdivisions 12 and 18 (2012) because (1) his course of
              treatment and present mental status indicate that he continues


                                              2
             to need treatment and supervision in     his current treatment
             setting, and (2) the conditions of his   provisional discharge
             and full discharge will not provide a    reasonable degree of
             protection to the public and will not    enable him to adjust
             successfully to the community.

Gamble requested reconsideration by a judicial appeal panel.       The panel appointed

Amanda Powers-Sawyer, Psy.D., LP as an independent examiner. In the course of the

hearing, the panel received two exhibits, including Dr. Powers-Sawyer’s report following

her examination of Gamble.

      After Gamble presented his case, respondent Commissioner of Human Services

moved to dismiss his petition under Minn. R. Civ. P. 41.02(b) and Minn. Stat. § 253D.28,

subd. 2(d) (Supp. 2015). The judicial appeal panel granted the commissioner’s motion

and denied Gamble’s request for a full discharge from civil commitment, stating:

                     Appellant has failed to make even a minimal showing
             that he is no longer a danger to the public. Although
             Dr. Powers-Sawyer testified favorably regarding Appellant’s
             treatment prognosis and his progress thus far, she does not
             support his request. Appellant did not present a written
             discharge plan. Appellant has only a general discharge plan,
             to live with his girlfriend, attend outpatient treatment and
             obtain employment. The lack of specificity does not
             demonstrate how Appellant would make an adjustment to
             open society or what safeguards are in place for public
             protection. Without any specific plans in place, Appellant has
             failed to present any evidence that he is capable of making an
             open adjustment to society, especially after such a period of
             institutionalization.

                    Appellant did not provide any evidence in support of
             the elements for discharge. As a result, Appellant has not
             produced any competent evidence to meet his initial burden to
             establish a prima facie case for a discharge, thereby avoiding
             judgment as a matter of law.



                                           3
This appeal follows.

                                    DECISION

      Gamble challenges the judicial appeal panel’s denial and dismissal of his petition

for full discharge.    “[W]hen a judicial appeal panel dismisses a [civil-commitment

discharge] petition under Minn. R. Civ. P. 41.02(b), the appropriate standard of appellate

review is de novo.” Larson v. Jesson, 847 N.W.2d 531, 534 (Minn. App. 2014).

      A person committed as an SDP may petition the special review board for a

discharge. Minn. Stat. § 253D.27, subd. 2 (2014). If the board recommends denial of the

petition, the person may seek reconsideration from the judicial appeal panel. Larson, 847

N.W.2d at 534. A petitioner before the judicial appeal panel “bears the burden of going

forward with the evidence, which means presenting a prima facie case with competent

evidence to show that the person is entitled to the requested relief.”        Minn. Stat.

§ 253D.28, subd. 2(d). This is “only a burden of production.” Coker v. Jesson, 831

N.W.2d 483, 490 (Minn. 2013). The petitioner must “come forward only with sufficient,

competent evidence that, if proven, would entitle the petitioner to relief.” Id. “If the

committed person satisfies his burden of production, then the party opposing the petition

bears the burden of proof by clear and convincing evidence that the discharge or

provisional discharge should be denied.” Id. at 486 (quotation omitted).

      “After the [petitioner] has completed the presentation of evidence, the

commissioner may move to dismiss the petition under Minn. R. Civ. P. 41.02(b).”

Larson, 847 N.W.2d at 535. Dismissal under Minn. R. Civ. P. 41.02(b) is appropriate if

the committed person has not satisfied his burden of production. Id. When deciding


                                            4
whether the petitioner has satisfied the burden of production, the panel must “view the

evidence produced at the first-phase hearing in a light most favorable to the committed

person.” Coker, 831 N.W.2d at 491. It “may not weigh the evidence or make credibility

determinations.” Id. at 490.

      As an initial matter, Gamble amended his petition for relief to request full

discharge from civil commitment only.       Thus, the question before this court is not

whether Gamble is eligible for any sort of lesser-restrictive programming but only

whether he has established a prima facie case for a second hearing as it pertains to full

discharge. We limit our review to those claims presented to the panel. Thiele v. Stich,

425 N.W.2d 580, 582 (Minn. 1988).

      With regard to full discharge from civil commitment, Minnesota law provides the

following:

                    A person who is committed as a sexually dangerous
             person or a person with a sexual psychopathic personality
             shall not be discharged unless it appears to the satisfaction of
             the judicial appeal panel, after a hearing and recommendation
             by a majority of the special review board, that the committed
             person is capable of making an acceptable adjustment to open
             society, is no longer dangerous to the public, and is no longer
             in need of inpatient treatment and supervision.

                     In determining whether a discharge shall be
             recommended, the special review board and judicial appeal
             panel shall consider whether specific conditions exist to
             provide a reasonable degree of protection to the public and to
             assist the committed person in adjusting to the community. If
             the desired conditions do not exist, the discharge shall not be
             granted.




                                            5
Minn. Stat. § 253D.31 (2014). Gamble was committed as an SDP and is required to

remain in civil commitment unless he can show that he “is capable of making an

acceptable adjustment to open society, is no longer dangerous to the public, and is no

longer in need of inpatient treatment and supervision.” Id. Gamble failed to meet this

burden of production for several notable reasons.

         First, Gamble testified that he planned to live with his girlfriend upon his release.1

Dr. Powers-Sawyers testified that she did not recommend this plan because Gamble has

only met his girlfriend on three occasions, all within the confines of MSOP. Dr. Powers-

Sawyers stated that this plan

                would place him at situational risk to be in a situation that is
                not managing this dynamic risk factor of lack of stable
                bonding yet perpetuating it by living with someone he hardly
                knows.      He’s just jumping right into an intimate
                relationship. . . .

                       ....

                        . . . [I]t’s dysfunctional. It’s very adolescent-like to
                just to begin living with someone just because you think you
                have feelings for them, you haven’t even been out on a date
                first.

         Second, two days prior to his hearing before the judicial appeal panel, Gamble was

involved in a major altercation with another MSOP client over the use of a computer.

The incident resulted in the staff issuing a behavioral expectation report against Gamble.

On cross-examination, Gamble was asked to elaborate on the nature of the offense, and

he disclosed that he not only engaged in the altercation with the other MSOP client but


1
    Gamble’s girlfriend is the mother of another MSOP client.

                                               6
injured the staff member who responded. The incident resulted in Gamble being put on a

“cloth stretcher” after he was forcibly secured on the floor with a shield.        Gamble

testified that he lashed out because “[the other man] kept pushing and kept talking. And I

already have a lot of stress. There’s been a lot of factors going on with me and I just

wasn’t thinking at that moment and when he shoved me I started throwing my fists.”

When asked how he would react in the community should such a situation arise, Gamble

stated that he “wouldn’t intentionally put [himself] in any situation like that or anything

similar.” Gamble testified that he does not believe that he is dangerous despite engaging

in this altercation two days before the hearing where he was expected to demonstrate

(1) his capacity to make an acceptable adjustment to society, (2) that he is no longer

dangerous to the public, and (3) that he is no longer in need of inpatient treatment and

supervision as required by statute.2

       Third, Gamble testified that he is currently only in Phase II of a three-phase

treatment program. Gamble’s primary therapist at Moose Lake testified that before

Gamble is eligible for promotion to Phase III, he will be required to pass a particularized

polygraph examination that measures sexual arousal and prepare a comprehensive

relapse-prevention plan. He has yet to meet these criteria.

       The judicial appeal panel is statutorily mandated to consider the factual

circumstances of each petitioner’s request for relief. Minn. Stat. § 253D.31. The panel

found that Gamble “failed to make even a minimal showing that he is no longer a danger


2
  Gamble urged this court during oral argument to ignore statutory requirements for
discharge from civil commitment. We decline to do so.

                                             7
to the public.” Gamble scored moderate to moderate-high on various risk assessments.

The only testimony in support of Gamble’s release was his own.3 Only two documents

were submitted at the hearing—Dr. Powers-Sawyer’s report and the petition for full

discharge. And Gamble was not only unable to present a formal discharge plan that had

been approved by his treatment team, he also engaged in an altercation with another

individual on the eve of his hearing.

       The evidence does not support Gamble’s claim that he is statutorily entitled to

release. Viewing the evidence in the light most favorable to Gamble, he has failed to

produce evidence that, if proven, would entitle him to a full discharge. See Minn. Stat.

§ 253D.31. Because Gamble failed to meet his burden of production at the first-phase

hearing, the judicial appeal panel did not err by granting the commissioner’s motion to

deny and dismiss Gamble’s petition for full discharge.

       Affirmed.




3
  We recently held, albeit in an unpublished opinion, that “[a]bsent corroborating neutral
testimony, [a committed person’s] own report and testimony about his treatment cannot
stand alone as competent evidence of his capacity to live in open society without the
treatment and supervision that the MSOP provides.” Freeman v. Jesson, No. A14-0120,
2014 WL 2691568, at *3 (Minn. App. June 16, 2014). We noted that “[i]f self-serving
testimony could establish a prima facie case, the first-phase hearing would simply
collapse into the petitioner saying certain magic words to trigger the second phase.” Id.

                                            8
