Baker et al v. DesLauriers et al
MEMORANDUM AND ORDER denying 89 Motion for Reconsideration ; denying 89 Motion to Amend Complaint.; denying 89 Motion to Clarify. Please see order for details. Signed by District Judge J. Thomas Marten on 11/14/2017. (aa)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RONALD BAKER, et al.,
Case No. 14-1356-JTM
TIM KECK, Interim Secretary of Kansas
Department for Aging and Disability Services, and
MIKE DIXON, Clinical Program Director of the
Kansas Sexual Predator Treatment Program,
MEMORANDUM AND ORDER
Plaintiffs’ First Amended Complaint alleged that the defendants were violating
plaintiffs’ Fourteenth Amendment rights with respect to conditions of confinement and
treatment under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. § 59-29a01.
The court granted defendants’ motion to dismiss the complaint for failure to state a
claim upon which relief can be granted. (Dkt. 87). Judgment was entered the same day.1
(Dkt. 88). The matter is now before the court on plaintiffs’ “Motion to Reconsider, Grant
Leave to Amend, or Clarify.” (Dkt. 89).
I. Motion to Reconsider
Plaintiffs’ motion asks for alternative forms of relief pursuant to Fed. R. Civ. P.
59(e) and 15(a). It first argues the court committed clear error by failing to consider the
State of Kansas’s 2015 Post Audit Report regarding the Kansas Sexually Violent
Plaintiffs’ response to defendants’ motion to dismiss argued that the allegations in the complaint were
sufficient to state a claim, but did not request leave to amend the complaint to cure the deficiencies
claimed by the defendants.
Predator Treatment Program, and argues the court should reconsider its ruling in light
of that report. (Dkt. 90 at 6-7). Plaintiffs argue the court’s “refusal to consider the Post
Audit Report was a clear legal error because this report is a public document of which
the Court may take judicial notice,” and “[s]uch judicial notice is mandatory when
considering a motion to dismiss.” (Id. at 7). If the court declines to take judicial notice,
plaintiffs ask the court for leave to amend the complaint to add references to the Post
Audit Report and its contents. (Id. at 9-10). Plaintiffs argue their proposed amended
complaint, which is attached to the motion, states a valid claim for relief. They also
contend that Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017), which was cited by the court
in its order of dismissal, employed a due process standard different from the Tenth
Circuit’s, and the case therefore does not support dismissal. (Dkt. 90 at 19). Finally, if
the court otherwise denies relief, plaintiffs ask the court to clarify that the dismissal is
without prejudice. (Id. at 20-21).
II. Standard of Review
Once judgment is entered, the filing of an amended complaint is not permissible
until judgment is set aside or vacated under Rule 59(e) or 60(b). The Tool Box, Inc. v.
Ogden City Corp., 419 F.3d 1084, 1087 (10th Cir. 2005). Thus, even though Rule 15(a)
states that leave to amend “shall be freely given,” that presumption is reversed in cases
where the plaintiff seeks to amend after judgment has been entered and a case
Rule 59(e) relief is available in limited circumstances. Hayes Family Trust v. State
Farm Fire & Cas. Co., 845 F.3d 997, 1004 (10th Cir. 2017). Those circumstances include: (1)
an intervening change in the controlling law; (2) when there is new evidence that was
previously unavailable; and (3) the need to correct clear error or prevent manifest
injustice. Id. (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
Even assuming the court erred by not taking judicial notice of the Post Audit
Report, any such error would not change the court’s prior ruling, nor would it warrant
granting the relief now requested. As the court noted in its prior order, the report
“mirrors several allegations in the amended complaint, including criticism of the SVTP
for providing insufficiently individualized treatment.” (Dkt. 87 at 10-11, n.2). But the
court found the allegations in the complaint insufficient to state a claim, and said
“[e]ven if the court were to consider this report as part of plaintiffs’ allegations, it does
not allege or purport to show that the Kansas program was such a departure from
accepted standards that it reflects an absence of professional judgment.” Id. Thus,
taking judicial notice of the report would not alter the court’s prior ruling.
Plaintiffs assert that the Post Audit Report2 was based in part on research
published by the Association for Treatment of Sexual Abusers (ATSA), which
“emphasizes the benefits of individualized treatment,” and that, according to the
report’s authors, “[o]fficials from three other states that we spoke with generally agreed
2 Plaintiffs point out that, contrary to the court’s statement in its order, a legislative committee did not
prepare the report. Rather, the report was compiled by the staff of the Legislative Division of Post Audit.
(Dkt. 90 at 8). The specific source of report played no part in the court’s prior conclusion and makes no
difference insofar as the instant motion is concerned. See Dkt. 90 at 8 (asking the court to reconsider its
ruling “[t]o the extent the Court’s misunderstanding of the report as being merely a ‘report by a
legislative committee’ influenced its decision”).
with [this] research.” (Dkt. 90 at 5). The report concluded that, contrary to the
recommended practices in the ATSA, Kansas “did not use an assessment tool that
explicitly evaluates the risk of reoffending”; it “did not create sufficiently
individualized treatment plans”; its “annual review did not appear to meet
recommended practices”; and “individuals with intellectual and developmental
disabilities had the same requirements and received the same treatment as all other
residents, but at a slower pace.” (Id. at 5-6).
The alleged shortcomings cited in the Post Audit Report do not alter the court’s
conclusion that the First Amended Complaint failed to state a valid claim for relief. Nor
does plaintiffs’ incorporation of those shortcomings in their Proposed Second Amended
Complaint (Dkt. 90-1 at 11-13, 18-88) alter that conclusion. The Audit Report asserted
that the ATSA and others have put out “research-based guidance for the treatment of
sexually violent predators,” that officials from three other states agreed with this
research, and that the research “emphasizes the benefits of individualized treatment.”
(Dkt. 90-1 at 35). The Report further concluded that Kansas’s “treatment model has not
kept up with the research-based, recommended practices we saw in other states.” (Dkt.
90-1 at 61). Accepting these allegations at true, they still do not set forth facts showing
that Kansas’s treatment represents such a departure from accepted professional
judgment as to demonstrate that the persons responsible for the program actually did
not base their decisions on a professional judgment. States enjoy wide latitude in
developing treatment regiments. Kansas v. Hendricks, 521 U.S. 346, 368, n.4 (1997). The
fact that a preferred method of treatment may have developed, as plaintiffs allege, does
not render Kansas’s use of some other method unconstitutional. See Allison v. Snyder,
332 F.3d 1076, 1081 (7th Cir. 2003) (“The Constitution does not command state officials
to follow the majority view of a given professional association. Plaintiffs have not
supplied any reason for us to conclude that the choices made by Illinois are so far
outside the bounds of professional norms that they must be equated with no
professional choice at all.”) (cited at Dkt. 87 at 12). The plausibility standard of Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007) requires a plaintiff to allege facts showing more
than a possibility that a defendant is liable. Plaintiffs have not done so here. For
essentially the same reasons set forth by the court in its prior order, the court finds that
plaintiffs’ Proposed Second Amended Complaint fails to state a claim upon which relief
can be granted, that granting the requested leave to amend under these circumstances
would be futile, and that the action should be dismissed with prejudice. See Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal with prejudice is
appropriate where a complaint fails to state a claim for relief under Rule 12(b)(6) and
granting leave to amend would be futile.”).
IT IS THEREFORE ORDERED this 14th day of November, 2017, that plaintiffs’
Motion for Reconsideration, to Amend Complaint, or to Clarify (Dkt. 89) is DENIED.
___s/ J. Thomas Marten_____
J. THOMAS MARTEN, JUDGE
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