Karsjens et al v. Minnesota Department of Human Services et al
Filing
1108
MEMORANDUM OPINION AND ORDER: Plaintiffs' remaining Phase One claims (Counts III, V, VI and VII) are DISMISSED WITH PREJUDICE. Defendants' Motion for Summary Judgment on Phase Two (Counts VIII, IX, and X) (Doc. No. 1095 ) is GRANTE D and these counts are DISMISSED WITH PREJUDICE. Defendants' Motion for Final Apportionment of Rule 706 Expert Costs (Doc. No. 1095 ) is DENIED WITHOUT PREJUDICE to renewal in connection with a Motion for Costs pursuant to Federal Rule of Civil Procedure 54. (Written Opinion) Signed by Judge Donovan W. Frank on 8/23/2018. (las)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Kevin Scott Karsjens, David Leroy Gamble,
Jr., Kevin John DeVillion, Peter Gerard
Lonergan, James Matthew Noyer, Sr.,
James John Rud, James Allen Barber,
Craig Allen Bolte, Dennis Richard Steiner,
Kaine Joseph Braun, Christopher John
Thuringer, Kenny S. Daywitt, Bradley Wayne
Foster, Brian K. Hausfeld, and all others
similarly situated,
Civil No. 11-3659 (DWF/TNL)
Plaintiffs,
MEMORANDUM
OPINION AND ORDER
v.
Emily Johnson Piper, Kevin Moser, Peter
Puffer, Nancy Johnston, Jannine
Hébert, and Ann Zimmerman,
in their official capacities,
Defendants.
Daniel E. Gustafson, Esq., Karla M. Gluek, Esq., David A. Goodwin, Esq., Raina
Borrelli, Esq., and Eric S. Taubel, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.
Scott H. Ikeda, Adam H. Welle, and Aaron Winter, Assistant Attorneys General,
Minnesota Attorney General’s Office, counsel for Defendants.
INTRODUCTION
This matter is before the Court following remand on three separate matters. First,
the parties dispute the proper disposition of Plaintiffs’ remaining Phase One counts in
light of the Eighth Circuit’s decision. (See Doc. Nos. 1095, 1097, 1100, 1102.) Second,
Defendants seek summary judgment on all Phase Two counts. (See Doc. Nos. 1095,
1097, 1102, 1105.) Plaintiffs oppose summary judgment and assert that the class should
be decertified with respect to these counts. (See Doc. Nos. 1100, 1106.) Third,
Defendants ask the Court to apportion the cost of the Rule 706 Experts to Plaintiffs.
(Doc. Nos. 1095, 1097, 1102.) Plaintiffs oppose this request. (Doc. No. 1100.) For the
reasons set forth below, all remaining claims raised in Plaintiffs’ Third Amended
Complaint shall be dismissed with prejudice. The Court shall reserve determination on
the final apportionment of Rule 706 Expert costs.
BACKGROUND
This case has an extensive and complex history which has been discussed at length
in prior orders. The Court incorporates by reference the factual background in the
Court’s February 2, 2015 Memorandum Opinion and Order addressing Defendants’ prior
Motion for Summary Judgment (Doc. No. 828), as well as the factual findings from
Phase One of trial contained in the Court’s June 17, 2015 Findings of Fact, Conclusions
of Law, and Order (Doc. No. 966). The Court assumes familiarity with these and other
relevant orders and only briefly summarizes the relevant background here.
Plaintiffs are individuals residing at the Minnesota Sex Offender Program (the
“MSOP”) who are civilly committed under Minnesota Statute § 253D, the Minnesota
Civil Commitment and Treatment Act (“MCTA”). (See Doc. No. 635 (“Third Am.
Compl”) ¶ 2.) The fourteen named Plaintiffs represent a class certified pursuant to
Federal Rule of Civil Procedure 23(b)(2), consisting of “[a]ll patients currently civilly
committed to [the MSOP] pursuant to Minn. Stat § 253B.” (See Doc. No. 203.)
Plaintiffs’ lawsuit challenges the constitutionality of the MCTA on its face and as
2
applied, as well as various aspects of the MSOP’s operation and treatment regime. (See
generally Third Am. Compl. ¶ 1.)
Specifically, Plaintiffs’ Third Amended Complaint raises the following thirteen
claims: (I) Minnesota Statute § 253D is facially unconstitutional; (II) Minnesota Statute
§ 253D is unconstitutional as applied; (III) Defendants have failed to provide treatment in
violation of the Fourteenth Amendment to the United States Constitution and the
Minnesota Constitution; (IV) Defendants have failed to provide treatment in violation of
the MCTA; (V) Defendants have denied Plaintiffs the right to be free from punishment in
violation of the Fourteenth Amendment to the United States Constitution and the
Minnesota Constitution; (VI) Defendants have denied Plaintiffs the right to less
restrictive alternative confinement in violation of the Fourteenth Amendment to the
United States Constitution and the Minnesota Constitution; (VII) Defendants have denied
Plaintiffs the right to be free from inhumane treatment in violation of the Fourteenth
Amendment to the United States Constitution and the Minnesota Constitution;
(VIII) Defendants have denied Plaintiffs the right to religion and religious freedom in
violation of the First and Fourteenth Amendments to the United States Constitution;
(IX) Defendants have unreasonably restricted free speech and free association in
violation of the First Amendment to the United States Constitution and the Minnesota
Constitution; (X) Defendants have conducted unreasonable searches and seizures in
violation of the Fourth Amendment to the United States Constitution and the Minnesota
Constitution; (XI) Defendants have violated court ordered treatment; (XII) Defendants
Jesson, Benson, Moser, Lundquist, Johnston, and Hébert have breached Plaintiffs’
3
contractual rights; and (XIII) Defendants Jesson, Benson, Moser, Lundquist, Johnston,
and Hébert have tortiously interfered with contractual rights and have intentionally
violated Minn. Stat. § 253B.03, subd. 7. (Third Am. Compl. at 59-84.)
On February 2, 2015, the Court issued an order denying Defendants’ Motion for
Summary Judgment on all counts in Plaintiffs’ Third Amended Complaint. (Doc.
No. 828.) The matter proceeded to trial in two phases. (See Doc. No. 647.) The Court
explained the two phases of trial as follows:
Phase One will be comprised of the presentation of evidence and argument
on the following issues: (1) whether Minnesota Statute Chapter 253D is
unconstitutional on its face and as applied; (2) whether the treatment
provided is constitutionally and/or statutorily infirm; (3) whether the
treatment program complies with court-ordered treatment; (4) whether
confinement is tantamount to unconstitutional punitive detention; and
(5) whether less restrictive alternatives to confinement are constitutionally
required.
...
Phase Two shall be comprised of the presentation of evidence and
argument on the following issues: (1) whether confinement conditions
constitute unconstitutional restrictions on freedom of speech, religion, and
association; (2) whether confinement procedures constitute unconstitutional
searches and seizures; (3) whether the treatment program and its
implementation constitutes a breach of contract, tortious interference with
contract, and intentional violation of Minnesota Statute Section 253B.03(7).
(Id. at 2.) Phase One of trial took place between February 9, 2015 and March 18, 2015.
(See Doc. Nos. 839, 908.)
On June 17, 2015, the Court issued its Findings of Fact, Conclusions of Law, and
Order, granting Plaintiffs’ request for declaratory relief on Counts I and II. (Doc.
No. 966 at 75.) The Court stated, “[b]ecause the Court finds the program is
unconstitutional on its face and as applied (Counts I and II), and because any remedy
4
fashioned will address the issues raised in the remaining Phase One Counts, the Court
need not address Counts III, V, VI, and VII.” (Id. at 65.) The Court noted that its
“determination that the MSOP and its governing civil commitment statutes are
unconstitutional concludes Phase One of this case.” (Id. at 5.) The Court also reiterated
that “Counts VIII, IX, and X, will be tried in the second phase of trial (‘Phase Two’).” 1
(Id. at 76.) On October 29, 2015, the Court issued a First Interim Relief Order directing
injunctive relief to remedy the court’s findings of unconstitutionality. (Doc. No. 1035.)
Defendants appealed the Court’s June 17, 2015 and October 29, 2015 Orders to
the Eighth Circuit Court of Appeals. (Doc. No. 1036.) On January 3, 2017, the Eighth
Circuit issued an opinion “revers[ing] the district court’s finding of a constitutional
violation and vacat[ing] the injunctive order.” Karsjens v. Piper, 845 F.3d 394, 411 (8th
Cir. 2017). It remanded the case to this Court “for further proceedings on the remaining
claims in the Third Amended Complaint.” Id.
Following a series of stays during which Plaintiff sought further review at the
United States Supreme Court, the Court and the parties met for a Status Conference on
October 25, 2017. (See Doc. Nos. 1080, 1086, 1093.) Thereafter, Defendants filed a
renewed Motion for Summary Judgment, seeking summary judgment on Counts VIII, IX,
and X, as well as apportionment of the Rule 706 Expert costs to Plaintiffs. In briefing
this motion, Defendants also briefed the issue of how the Court should address the
remaining Phase One counts (Counts III, V, VI, and VII) in light of the Eighth Circuit’s
1
On August 10, 2015, Counts IV, XI, XII, and XIII were dismissed with prejudice.
(Doc. No. 1005.)
5
decision. (Doc. No. 1095.) The parties fully briefed these issues, and the Court heard
argument on February 5, 2018. (Doc. Nos. 1097, 1100, 1102, 1103.) The Court notes
additional facts as necessary to resolve the pending matters, below.
DISCUSSION
I.
Remaining Phase One Counts
Defendants argue that the remaining claims in Phase One should be dismissed
because these claims were determined by the Eighth Circuit’s decision in Karsjens, 845
F.3d 394 (8th Cir. 2017). Specifically, Defendants assert that, “[f]or the same reasons the
Eighth Circuit reversed the Court’s substantive due process analysis as to Counts I and II,
the substantive due process claims asserted in Counts III, V, VI, and VII should also be
dismissed.” (Doc. No. 1097 at 4.) According to Defendants, the remaining Phase One
counts must be dismissed because the Eighth Circuit has already reviewed the trial record
and determined that Defendants did not engage in conduct that shocks the conscience.
Defendants also contend that the Eighth Circuit implicitly decided Counts III, V, VI, and
VII, precluding further review of these claims on remand. 2
Plaintiffs, on the other hand, argue that the remaining Phase One counts “have yet
to be decided by the Court, and that their outcome is not dictated by the Eighth Circuit’s
decision with respect to Counts I and II.” (Doc. No. 110 at 1-2.) Plaintiffs urge the Court
2
Defendants also argue that the remaining counts in Phase One must be dismissed
for lack of subject matter jurisdiction to the extent they are based on allegations that
Defendants have violated Minnesota state law. Plaintiffs do not dispute that such claims
are subject to dismissal under Pennhurst State School and Hospital v. Halderman, 465
U.S. 89 (1984), and the Eleventh Amendment. Thus, the Court shall grant Defendants’
motion on this issue.
6
to make “a full analysis and ruling on these claims” and to conclude that Plaintiffs’
remaining substantive due process claims are supported by evidence of “both
conscience-shocking conduct by Defendants and the violation of a fundamental liberty
right such that they should prevail.” (Id. at 2, 4.) According to Plaintiffs, “[i]f the Eighth
Circuit’s opinion is read as broadly as Defendants suggest, then there is no path for
Plaintiffs, or any civilly committed sex offender, to ever prevail on a substantive due
process claim.” (Id. at 4-5.) Plaintiffs argue that the trial record supports a determination
in their favor on the remaining substantive due process claims in Counts III, V, VI, and
VII because Defendants were deliberately indifferent to a substantial risk of harm to
Plaintiffs, and such conduct amounts to conscience-shocking behavior. 3
A.
The Eighth Circuit’s Opinion
In the Eighth Circuit’s Karsjens opinion, the appellate court reversed this Court’s
liability findings on Counts I and II of Plaintiffs’ Third Amended Complaint. 845 F.3d at
411. In doing so, the Eighth Circuit rejected this Court’s application of a strict scrutiny
standard to Plaintiffs’ facial and as-applied substantive due process claims. Id. at 407.
On Plaintiffs’ facial due process claim in Count I, the Eighth Circuit stated that “the
Supreme Court . . . has never declared that persons who pose a significant danger to
themselves or others possess a fundamental liberty interest in freedom from physical
restraint.” Id. Thus, it held that “the proper standard of scrutiny to be applied . . . is
3
Plaintiffs acknowledge that the Eighth Circuit’s decision with respect to Count II
addressed overlapping allegations as Counts III and VI, relating to treatment and the lack
of less restrictive alternatives. However, Plaintiffs argue that “the Court should
specifically address the allegations in Counts III and IV and apply the
‘shocks-the-conscience’ standard to those counts.” (Id. at 7 n.5.)
7
whether MCTA bears a rational relationship to a legitimate government purpose.” Id. at
407-08. The Court held that the MCTA met this “highly deferential” standard, reversing
this Court’s conclusion that the statute was facially unconstitutional for six specified
reasons. 4 See id. at 409-10.
With regard to Count II, Plaintiffs’ as-applied substantive due process challenge,
the Eighth Circuit held that “the court should determine both whether the state
defendants’ actions were conscience-shocking and if those actions violated a fundamental
liberty interest.” Id. at 408. The Eighth Circuit clarified that actions that meet the
conscience-shocking standard must be “egregious or outrageous” and “must involve
conduct ‘so severe . . . so disproportionate to the need presented, and . . . so inspired by
malice or sadism rather than a merely careless or unwise excess of zeal that it amounted
to a brutal and inhumane abuse of official power literally shocking to the conscience.’”
Id. (citations omitted).
4
As summarized by the Eighth Circuit, the six reasons this Court identified for
finding the MCA unconstitutional as applied included the following:
(1) MCTA did not require periodic risk assessments of all committed
persons, (2) MCTA did not provide for a judicial bypass mechanism,
(3) MCTA rendered discharge from the MSOP more onerous than
admission because discharge criteria was more stringent than admission
criteria, (4) MCTA impermissibly shifted the burden to petition for a
reduction in custody to the committed person, (5) MCTA did not provide
less restrictive alternatives although the statute indicated such would be
available, and (6) MCTA did not require state officials to petition for a
reduction in custody on behalf of committed individuals who might qualify
for a reduction.
Karsjens v. Piper, 845 F.3d 394, 408-09 (8th Cir. 2017).
8
In discussing whether Plaintiffs’ allegations implicated a fundamental liberty
interest, the Eighth Circuit stated, “we have previously held that although ‘the Supreme
Court has recognized a substantive due process right to reasonably safe custodial
conditions, [it has not recognized] a broader due process right to appropriate or effective
or reasonable treatment of the illness or disability that triggered the patient’s involuntary
confinement.’” Id. at 410 (quoting Strutton v. Meade, 668 F.3d 549, 557 (8th Cir. 2012)).
It also noted that “the Supreme Court [has] recognized [that] the Constitution does not
prevent ‘a State from civilly detaining those for whom no treatment is available.’” Id. at
410 (quoting Kansas v. Hendricks, 521 U.S. 346, 356 (1997)).
The Eighth Circuit then turned to the shocks-the-conscience prong of the
substantive due process analysis and stated that “[n]one of the six grounds upon which
the district court determined the state defendants violated the class plaintiffs’ substantive
due process rights in an as-applied context satisfy the conscience-shocking standard.” Id.
at 410. These six grounds included the following:
(1) Defendants do not conduct periodic independent risk assessments or
otherwise evaluate whether an individual continues to meet the initial
commitment criteria or the discharge criteria if an individual does not file a
petition; (2) those risk assessments that have been performed have not all
been performed in a constitutional manner; (3) individuals have remained
confined at the MSOP even though they have completed treatment or
sufficiently reduced their risk; (4) discharge procedures are not working
properly at the MSOP; (5) although section 253D expressly allows the
referral of committed individuals to less restrictive alternatives, this is not
occurring in practice because there are insufficient less restrictive
alternatives available for transfer and no less restrictive alternatives
available for initial commitment; and (6) although treatment has been made
available, the treatment program’s structure has been an institutional failure
and there is no meaningful relationship between the treatment program and
an end to indefinite detention.
9
Id. at 402–03. The court explained, “[h]aving reviewed these grounds and the record on
appeal, we conclude that the class plaintiffs have failed to demonstrate that any of the
identified actions of the state defendants or arguable shortcomings in the MSOP were
egregious, malicious, or sadistic as is necessary to meet the conscience-shocking
standard.” Id. at 410-11. It then reversed the findings of a constitutional violation,
vacated the injunctive order, and “remand[ed] this matter to the district court for further
proceedings on the remaining claims in the Third Amended Complaint.” Id. at 411.
B.
Scope of Review on Remand
As discussed above, the parties dispute whether the remaining Phase One counts
were explicitly or implicitly decided by the Eighth Circuit. Defendants contend that the
Eighth Circuit explicitly, or at a minimum implicitly, decided these claims. Plaintiffs
dispute that the Eighth Circuit decided these claims, emphasizing that it never even
mentioned them in its opinion.
Under the law of the case doctrine, “the district court is not free on remand to
reconsider any question finally disposed of by the court of appeals.” Pediatric Specialty
Care, Inc. v. Ark. Dep’t of Human Servs., 364 F.3d 925, 931 (8th Cir. 2004). However,
the court may consider “any issue ‘not expressly or impliedly disposed of on appeal.’”
Id. (citation omitted). If the appellate court directs the lower court to consider a specific
claim upon remand, that “does not restrict its decision to only that matter.” Id. Rather,
any unresolved claims are “within the province of the district court to entertain.” Id.
Even where the language in an appellate decision appears broad, “it is necessarily limited
10
by the context of the claims and issues decided in that appeal.” See Forest Park II v.
Hadley, 408 F.3d 1052, 1057 (8th Cir. 2005); see also U.S. Fid. & Guar. Co. v. Concrete
Holding Co., 168 F.3d 340, 342 (8th Cir. 1999) (“Subjects an appellate court does not
discuss, because the parties did not raise them, do not become the law of the case by
default.” (quoting Bone v. City of Lafayette, Ind., 919 F.2d 64, 66 (7th Cir. 1990))).
Counts III, V, VI, and VII all arise under the due process clause of the Fourteenth
Amendment 5 and challenge Defendants’ acts and omissions relating to the creation and
implementation of various policies at the MSOP. (See Third Am. Compl. ¶¶ 254-61,
269-97.) Count III raises a failure-to-provide treatment claim. (Id. ¶¶ 254-61.) Count V
alleges a denial of the right to be free from punishment. (Id. ¶¶ 269-83.) Count VI
asserts a denial of the right to less restrictive alternative confinement. (Id. ¶¶ 284-91.)
Finally, Count VII alleges a denial of the right to be free from inhumane treatment. (Id.
¶¶ 292-97.) In its June 17, 2015 Findings of Fact, Conclusions of Law, and Order, the
Court declined to resolve these counts, stating that “[b]ecause the Court finds the
program is unconstitutional on its face and as applied (Counts I and II), and because any
remedy fashioned will address the issues raised in the remaining Phase One Counts, the
Court need not address Counts III, V, VI, and VII.” (Doc. No. 966 at 65.)
None of these claims were identified by Defendants in their list of issues being
appealed to the Eighth Circuit. (See Doc. No. 1036-1 at 2.) Thus, the Eighth Circuit’s
5
To the extent these counts arise under the Minnesota Constitution, they are
dismissed with prejudice. See supra note 2.
11
opinion did not specifically reference these claims. 6 See generally Karsjens, 845 F.3d
394. The Eighth Circuit only analyzed the Court’s constitutionality determinations with
respect to Counts I and II, Plaintiffs’ facial and as-applied due process challenges to the
MCTA. See id. at 406-11. Although the Eighth Circuit’s analysis of these claims
addressed a number of issues that overlap with the Phase One counts that were left
undecided, Counts III, V, VI, and VII were neither expressly nor impliedly decided by
the Eighth Circuit on appeal. Thus, on remand, these claims remain viable, and the Court
shall resolve these claims on their merits in light of the Eighth Circuit’s decision.
C.
Remaining Phase One Claims on the Merits
As noted, Plaintiffs’ remaining Phase One claims allege Fourteenth Amendment
due process violations arising out of Defendants’ acts and omissions in connection with
the operation of the MSOP. These claims are thus governed by the substantive due
process standard outlined in the Eighth Circuit’s Karsjens opinion. Specifically, to hold
Defendants liable under Counts III, V, VI, and VII, the court must conclude that “the
state defendants’ actions were conscience-shocking and [that] those actions violated a
fundamental liberty interest.” Karsjens, 845 F.3d at 408.
Plaintiffs’ arguments with respect to these counts center on the punitive nature of
the MSOP combined with treatment and release procedures that result in indefinite
In discussing this Court’s liability order, the Eighth Circuit explained, “[t]he court
noted it would address the remaining claims in the Third Amended Complaint in a second
phase of the trial and in a separate order.” Karsjens, 845 F.3d at 403. This reference
appears to relate to Counts IV, XI, XII, and XIII which the Court stated “will be
addressed under separate Order,” as well as Counts VII, IX, and X which the Court stated
“will be tried in the second phase of trial.” (Doc. No. 966 at 76.)
6
12
confinement. The Eighth Circuit has recently affirmed that “a committed acquittee is
entitled to release once he is no longer dangerous or no longer mentally ill.” Andrews v.
Schafer, 888 F.3d 981, 984 (8th Cir. 2018). While this proposition may support an
individual’s challenge to a court order that restrains his liberty, however, to successfully
assert a substantive due process claim in this context, the plaintiff must establish both
parts of the Eighth Circuit’s two-part inquiry outlined in Karsjens. Id. at 984. The
Eighth Circuit’s established standard affirms that “[i]n the context of substantive due
process, an individual must overcome a very heavy burden to show a violation of the
Fourteenth Amendment.” Hall v. Ramsey Cty., 801 F.3d 912, 917 (8th Cir. 2015).
1.
Failure to Provide Treatment Claim (Count III)
Turning to Plaintiff’s failure-to-provide-treatment claim in Count III, the Eighth
Circuit stated in Karsjens, “we have previously held that although ‘the Supreme Court
has recognized a substantive due process right to reasonably safe custodial conditions, [it
has not recognized] a broader due process right to appropriate or effective or reasonable
treatment of the illness or disability that triggered the patient’s involuntary
confinement.’” Karsjens, 845 F.3d at 410 (quoting Strutton, 668 F.3d at 557). In
Strutton v. Meade, the Eighth Circuit had held that the plaintiff, an individual civilly
committed under the Missouri Sexually Violent Predators Act, “does not have a
fundamental due process right to sex offender treatment.” 668 F.3d at 557. This was so
even though Missouri’s statutory scheme authorized commitment “for control, care and
treatment until such time as [the offender’s] mental abnormality has so changed that [he]
is safe to be at large.” Id. (quoting Mo. Rev. Stat. § 632.495(2)). The Eighth Circuit
13
applied the shocks-the-conscience standard and held that “[a]lthough the treatment
[plaintiff] received may have been less than ideal, and perhaps even inadequate by
professional standards, it was not so lacking as to shock the conscience.” Id. at 558. 7
Notwithstanding the Eighth Circuit’s comments in Karsjens, Plaintiffs contend
that the Supreme Court has not determined whether committed individuals have a
constitutional right to treatment under the circumstances of this case. Plaintiffs argue that
their allegations in Count III center on the manner in which Defendants’ treatment
program blocks Plaintiffs’ release from the MSOP “rather than alleging a constitutional
right to treatment per se.” (Doc. No. 1100 at 8.) In this context, Plaintiffs argue that
“[t]he multitude of issues with the MSOP’s treatment program, when considered as a
system-wide problem, reach the level of conscience shocking behavior that violates due
process.” (Id. at 9.) Plaintiffs also assert that this claim implicates the “fundamental
liberty right to be free from commitment, or bodily restraint, when the basis for the
commitment no longer exists.” (Id. at 14.) Plaintiffs dispute that the Eighth Circuit
established that Plaintiffs have no such fundamental liberty right. With respect to Count
III, Defendants argue that “[t]he Eighth Circuit explicitly rejected Plaintiffs’ contention
This Court previously distinguished Strutton based on differences between
Minnesota and Missouri’s statutory mandate directing treatment and because “the
plaintiff’s claims [in Strutton] were limited to his access to treatment; he neither raised a
systemic challenge to the implementation of the program as a whole, nor did he allege
that his confinement was punitive in nature.” (Doc. No. 828 at 21 n.27 (quoting Doc.
No. 427 at 24).) The Eighth Circuit’s reference to Strutton in its Karsjens opinion
suggests that these bases for distinguishing Strutton do not materially impact the relevant
substantive-due-process inquiry applicable to the Plaintiffs’ claims in this case.
7
14
that they have a fundamental substantive due process right to treatment.” (Doc. No. 1097
at 5.)
The Court concludes that Plaintiffs have failed to establish Defendants’ liability
under Count III. In this circuit, committed individuals do not have a recognized “due
process right to appropriate or effective or reasonable treatment of the illness or disability
that triggered the patient’s involuntary confinement.” Karsjens, 845 F.3d at 410 (quoting
Strutton, 668 F.3d at 557). Furthermore, the Eighth Circuit appears to reject the notion
that committed individuals such as Plaintiffs have a fundamental liberty interest in
freedom from unjustified confinement. See id. at 407 (“[T]he Supreme Court . . . has
never declared that persons who pose a significant danger to themselves or others possess
a fundamental liberty interest in freedom from physical restraint.”). Finally, the Eighth
Circuit reviewed the Phase One trial record, including this Court’s finding that “although
treatment has been made available, the treatment program’s structure has been an
institutional failure and there is no meaningful relationship between the treatment
program and an end to indefinite detention.” See id. at 403, 410-11. Nonetheless, the
Eighth Circuit held that Defendants’ conduct was not conscience-shocking to support
substantive due process liability. See id. at 410-11 (“[T]he class plaintiffs have failed to
demonstrate that any of the identified actions of the state defendants or arguable
shortcomings in the MSOP were egregious, malicious, or sadistic as is necessary to meet
the conscience-shocking standard.”). Thus, under controlling Eighth Circuit precedent,
Plaintiffs’ Fourteenth Amendment failure-to-provide treatment claim lacks merit.
15
2.
Lack of Less Restrictive Alternatives Claim (Count VI)
Count VI asserts a related claim that Defendants have infringed upon Plaintiffs’
constitutionally-protected right to less restrictive alternative confinement under the
Fourteenth Amendment. Plaintiffs argue that the lack of less restrictive alternatives
available to committed individuals is conscience-shocking. In particular, Plaintiffs
contend that “[i]ntentionally failing to provide confinement that is appropriate for the
varying levels of risk presented by Plaintiffs and the Class, and actually knowing that
there are committed individuals who could be properly treated and managed in less
restrictive settings, is conscience shocking.” (Doc. No. 1100 at 11.) Plaintiffs suggest
that Defendants’ conduct amounts to deliberate indifference that supports finding a
Fourteenth Amendment substantive due process violation. Defendants, on the other
hand, argue that “[t]he Eighth Circuit . . . explicitly rejected Plaintiffs’ contention that
due process requires the availability of less restrictive facilities.” (Doc. No. 1097 at 6.)
As with Plaintiffs’ failure-to-provide-treatment claim, the Eighth Circuit’s
Karsjens decision forecloses finding Defendants’ liable under Count VI. The Eighth
Circuit’s statements regarding the lack of a fundamental right to treatment and the lack of
a fundamental liberty interest in freedom from physical restraint strongly imply that
civilly committed individuals do not retain a fundamental liberty interest in the least
restrictive confinement appropriate for their risk level. What is more, the Eighth Circuit
specifically acknowledged this Court’s findings that “individuals have remained confined
at the MSOP even though they have completed treatment or sufficiently reduced their
risk” and that “there are insufficient less restrictive alternatives available for transfer and
16
no less restrictive alternatives available for initial commitment.” Karsjens, 845 F.3d at
402-03. It nevertheless held that “[n]one of the . . . grounds upon which the district court
determined the state defendants violated the class plaintiffs’ substantive due process
rights in an as-applied context satisfy the conscience-shocking standard.” Id. at 410. The
Court is therefore bound by the Eighth Circuit’s decision to conclude that Defendants are
not liable under the Fourteenth Amendment for failing to provide less restrictive
alternatives to the Plaintiff Class.
3.
Punitive Nature of Confinement Claims (Counts V, VII)
Counts V and VII challenge the punitive nature of confinement at the MSOP
based on the asserted rights under the Fourteenth Amendment to be free from punishment
and inhumane treatment. With respect to these claims, Plaintiffs argue “that commitment
to the MSOP continues in duration beyond a time that it is constitutionally permissible.”
(Doc. No. 1100 at 12.) Plaintiffs emphasize that “Defendants do not even know whether
hundreds of Plaintiffs and Class members continue to meet the constitutional criteria for
commitment,” and highlight the barriers the MSOP has imposed in the reduction-incustody process. (Id.) On the merits of Counts V and VII, Defendants argue that
Plaintiffs’ theory challenging the punitive nature of the MSOP fails under the Fourteenth
Amendment and the Eighth Circuit’s application of the shocks-the-conscience standard.
The Court concludes that the Eighth Circuit’s holdings and reasoning preclude
finding a substantive due process violation under Counts V and VII. Notwithstanding
this Court’s finding holding that the MCTA “results in a punitive effect and application
contrary to the purpose of civil commitment,” the Eighth Circuit reversed the Court’s
17
finding of liability under the Fourteenth Amendment. Karsjens, 845 F.3d at 402.
Ultimately, the Eighth Circuit reviewed the Phase One record and determined that “the
class plaintiffs have failed to demonstrate that any of the identified actions of the state
defendants or arguable shortcomings in the MSOP were egregious, malicious, or sadistic
as is necessary to meet the conscience-shocking standard.” Id. at 410-11. In light of
these conclusions and the applicable standard for imposing substantive due process
liability, the Court concludes that Defendants are not liable under Counts V and VII.
4.
Plaintiffs’ Unconstitutionally Punitive Theory
Alternatively, Plaintiffs contend that they should prevail on their remaining Phase
One claims because Defendants are unconstitutionally punishing civilly committed
individuals. Plaintiffs assert that “[w]hether commitment to the MSOP is punitive, as
alleged in each of these claims, has not yet been determined by the Court,” and that the
Eighth Circuit has not identified the proper standard by which to analyze such
allegations. (Doc. No. 1100 at 5.) According to Plaintiffs, the trial record supports a
finding that “Plaintiffs’ commitment to the MSOP under the Act is punitive in effect”
based on the treatment, living conditions, and discharge process, “the consequence of
which is effectively life-long punitive detention.” (Id. at 16.) Plaintiffs also point to the
lack of periodic risk assessments conducted at the MSOP and argue that “[h]olding
Plaintiffs and Class members beyond such a time as they meet commitment standards, as
well as not even knowing whether people should continue to be confined, is certainly not
rationally related to a nonpunitive purpose, the rendering the Act punitive in effect.” (Id.
18
at 21.) In short, Plaintiffs argue that the record supports a finding that the MCTA is
punitive and therefore unconstitutional under Counts III, V, VI, and VII.
In response, Defendants contend that Plaintiffs are merely repeating arguments
that have been rejected by the Eighth Circuit. In particular, Defendants note that “the
Eighth Circuit considered and rejected Plaintiffs’ theory that the MSOP ‘results in a
punitive effect and application contrary to the purpose of civil commitment’ in violation
of substantive due process.” (Doc. No. 1102 at 5 n.7 (quoting Karsjens, 845 F.3d at
402).) In any event, Defendants contend that Plaintiffs’ alternative punitiveness theory
under Bell v. Wolfish, 441 U.S. 520 (1979), and Kennedy v. Mendoza-Martinez, 372 U.S.
144 (1963), is meritless and should be rejected because it was not advanced during the
Phase One trial. Defendants ultimately assert that it is irrelevant whether the remaining
Phase One claims are analyzed under a theory of deliberate indifference or general
punitiveness; in any case, Defendants argue, the shocks-the-conscience standard controls.
Even under this alternative theory of liability, the Court once again concludes that
the Eighth Circuit’s holdings are dispositive of Plaintiffs’ remaining Phase One claims.
Regardless of the theory of liability alleged, Plaintiffs’ Fourteenth Amendment
substantive due process claims are analyzed under the two-part test identified by the
Eighth Circuit in its Karsjens opinion. Furthermore, the Eighth Circuit has explicitly
held that Defendants’ actions, as revealed in Phase One of trial, do not rise to the
conscience-shocking level necessary to support Fourteenth Amendment substantive due
process liability. Even if this Court were free to conclude that the MSOP and
Defendants’ implementation of the MCTA amount to punishment of individuals who are
19
subject to civil commitment, the Eighth Circuit’s decision compels the conclusion that
Defendants have not engaged in conscience-shocking conduct to support the imposition
of liability under the Fourteenth Amendment. 8
For the reasons stated above, in light of the Eighth Circuit’s decision, the Court
finds that Defendants are not liable under Plaintiffs’ remaining Phase One claims. Thus,
Counts III, V, VI, and VII shall be dismissed with prejudice. The Court next turns to
Phase Two and Defendants’ renewed Motion for Summary Judgment on Counts VII, IX,
and X.
II.
Decertification of Plaintiffs’ Phase Two Class Claims
Plaintiffs’ Phase Two claims raise constitutional challenges to Defendants’
implementation of various policies at the MSOP. (See Third Am. Compl. ¶¶ 298-325.)
Specifically, Count VIII alleges a First Amendment religious freedom claim. (Id. ¶¶
298-306.) Count IX alleges unreasonable restrictions on Plaintiffs’ First Amendment
freedom of speech and association rights. (Id. ¶¶ 307-15.) Count X asserts that
Defendants have conducted unreasonable searches and seizures in violation of the Fourth
Amendment. (Id. ¶¶ 316-25.) With respect to Counts VIII and IX, Plaintiffs allege that
the challenged “policies, procedures and practices are not related to a legitimate
institutional or therapeutic interest of the Defendants.” (Id. ¶¶ 303, 312.) Concerning
Count X, Plaintiffs contend that Defendants’ “search policies, procedures and practices
unnecessarily invade the personal rights of Plaintiffs and Class members.” (Id. ¶ 322.)
8
Significantly, the Court’s conclusion on the viability of this theory in this case is
not meant to foreclose committed individuals from advancing this theory in separate
litigation.
20
In briefing their renewed Motion for Summary Judgment with respect to
Plaintiffs’ Phase Two claims, Defendants asserted in footnotes that Plaintiffs’ alleged
injuries were subject to individualized inquiry and “not capable of classwide resolution.”
(Doc. No. 1102 at 13 n.13, 15 n.14.) Despite neither party formally requesting
decertification of the Class with respect to Phase Two, Plaintiffs stated at oral argument
that these claims should be decertified. The Court requested letter briefs from the parties
on this issue, and each party filed a supplemental response.
Defendants contend that “[t]he Court should enter judgment on the merits in favor
of Defendants on Plaintiffs’ Phase Two claims.” (Doc. No. 1105 at 1.) Defendants
emphasize that there are no new circumstances to support Plaintiffs’ belated change in
position and new litigation strategy. “After six years of litigation,” Defendants contend,
“Plaintiffs should not be permitted to avoid a determination of the claims on the merits,
and the Court should grant Defendants summary judgment.” (Id. at 2.) At a minimum,
Defendants ask the Court to grant summary judgment with respect to the class
representatives’ individual claims.
Plaintiffs state that the Court should render a decision with respect to Plaintiffs’
Phase Two claims based on the parties’ arguments and the evidentiary record. Plaintiffs
also contend, however, that “[t]he Court has the discretion, and the obligation, to
decertify a class where class treatment is no longer appropriate, even where the initial
certification has not been challenged.” (Doc. No. 1106 at 1.) According to Plaintiffs,
“[a]s this case has progressed through discovery, trial, and appeals, it has become
apparent that class treatment is not appropriate for the Phase Two claims” because
21
Defendants’ conduct in applying various MSOP policies “[does not] apply generally to
the class.” (Id. at 2 (quoting Fed. R. Civ. P. 23(b)(2)).) In Plaintiff’s view, “the Court
has a duty to decertify the Class for the Phase two claims and allow Plaintiffs and Class
member[s] to pursue any claims they may have on an individual basis.” (Id.)
Once a class is certified pursuant to Federal Rule of Civil Procedure 23, the court
retains a continuing duty to assure the propriety of certification. See Hervey v. City of
Little Rock, 787 F.2d 1223, 1227 (8th Cir. 1986). In addition, “[a]n order that grants or
denies class certification may be altered or amended before final judgment.” Fed. R. Civ.
P. 23(c)(1)(C). A decision to decertify a class should arise based on changed
circumstances that were not present when the class was certified. See William B.
Rubenstein, Newberg on Class Actions § 7:34 (5th ed. 2018 Update). And whether to
decertify a class is within the district court’s discretion. See Webb v. Exxon Mobil Corp.,
856 F.3d 1150, 1157 (8th Cir. 2017).
The Court certified the Plaintiff Class on July 24, 2012, pursuant to Federal Rule
of Civil Procedure 23(b)(2), concluding “that Defendants’ alleged acts and omissions
regarding the Plaintiffs’ claims constitute actions generally applicable to the Class.”
(Doc. No. 203 at 11.) Among others, the Court identified the following common
questions of law or fact applicable to the Class:
“Whether Defendants violated Plaintiffs’ and Class members’ rights to be
free from unreasonable searches and seizures as protected by the Fourth
Amendment to the United States Constitution; [and] . . .
“Whether Defendants violated Plaintiffs’ and Class members’ rights to
freedom of expression, speech, and religious exercise as protected by the
First Amendment to the United States Constitution[.]”
22
(Id. at 6-7.) The Court also concluded that “resolution of the Plaintiffs’ claims will
necessarily remedy the injuries suffered by all potential Class members.” (Id. at 7.)
Finally, the Court emphasized the shared interests between the named plaintiffs and the
proposed class, noting that “they share the common goal of being housed in a humane,
therapeutic environment while receiving adequate treatment that gives them a realistic
opportunity for release.” (Id. at 10.)
As Plaintiffs noted in their brief in response to Defendants’ renewed Motion for
Summary Judgment, Counts VIII, IX, and X “all claim that the policies and practices at
the MSOP are punitive.” (Doc. No. 1100 at 24.) Plaintiffs acknowledge that “[c]laims
regarding the application of specific policies to a particular Plaintiff or Class member are
not appropriate for class treatment” if such claims arise from conduct that is not generally
applicable to the class. (Id. at 25.) Plaintiffs’ theory concerning these claims, however,
is “that when viewed collectively, these policies are clear violations of Plaintiffs’ and
Class members’ constitutional rights.” (Id.) Plaintiffs argue, “it is these policies and
practices in combination and when applied to the Class as a whole, that rise to the level of
a constitutional violation, along with the fact that they are applied uniformly to all
Plaintiffs without regard for individual treatment needs or risk levels.” (Id.)
The Court declines to decertify the Class in this matter because the common
questions and shared interests identified in the Court’s order granting class certification
remain with respect to the MSOP’s generally-applicable policies and practices. To be
sure, individuals residing at the MSOP may have viable individual claims regarding the
23
application of specific policies to them as individuals. However, this fact does not
foreclose the Court from considering Plaintiffs’ claims on a classwide basis to the extent
the policies affect the Class as a whole. Thus, the Court shall consider Plaintiffs’
classwide claims on their merits to the extent they allege systemic challenges to the
punitive nature of confinement at the MSOP arising under the First and Fourth
Amendments.
III.
Defendants’ Motion for Summary Judgment on Phase Two Claims
Defendants argue that the Eighth Circuit’s decision eliminates the rationale on
which the Court previously denied summary judgment on Plaintiffs’ remaining Phase
Two claims. Specifically, Defendants emphasize that “the Court based its denial of
Defendants’ previous summary judgment on Counts VIII, IX, and X on the proposition
that they might have merit in combination with Plaintiffs’ Phase One substantive due
process claims regarding the conditions of their confinement.” (Doc. No. 1097 at 23.)
Defendants dispute this rationale and further contend that, in any case, it is “disposed of
by the Eighth Circuit’s opinion.” 9 (Id.) Defendants point to recent caselaw decided since
the Court’s prior summary judgment decision that supports granting summary judgment
to Defendants on Plaintiffs’ Phase Two claims. Finally, Defendants assert that “Plaintiffs
continue to cite no authority for the proposition that constitutional policies somehow
become unconstitutional in combination with one another.” 10 (Doc. No. 1102 at 10.)
9
Defendants further note that “even Plaintiffs previously agreed that the disposition
of Phase One would affect Phase Two.” (Doc. No. 1102 at 10.)
10
Defendants also argue that Counts IX and X must be dismissed to the extent they
24
Contrary to Defendants’ view, Plaintiffs argue that “[t]he Eighth Circuit’s opinion
. . . has no bearing on the analysis of these claims.” (Doc. No. 1100 at 25 n.12.)
Plaintiffs explain that their First, Fourth, and Fourteenth Amendment claims in Counts
VIII, IX, and X all arise from the contention “that the policies and practices at MSOP are
punitive.” (Id. at 24.) According to Plaintiffs, although “[e]ach of these claims involves
a number of policies and practices that, when viewed individually, may not rise to the
level of a constitutional violation,” if the Court considers the policies “collectively,” they
amount to “clear violations of Plaintiffs’ and class members’ constitutional rights.” (Id.
at 24-25.) In short, Plaintiffs contend that the MSOP “operates as a punitive detention
center rather than a treatment facility,” supporting a finding of unconstitutionality. 11 (Id.
at 26.)
A.
Legal Standard
Summary judgment is appropriate if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Courts must view the evidence and all reasonable inferences in the
light most favorable to the nonmoving party. Weitz Co., LLC v. Lloyd’s of London, 574
F.3d 885, 892 (8th Cir. 2009). However, “[s]ummary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as an integral part of the
arise under the Minnesota Constitution. As noted above, Plaintiffs do not dispute that
such claims are subject to dismissal, and the Court shall grant dismissal on this basis.
11
Plaintiffs contend that Defendants should be precluded from relitigating summary
judgment on the Phase Two Counts. However, the Court and the parties agreed that
Defendants would be permitted to bring a renewed motion for summary judgment.
25
Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive
determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)
(quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank v. Magna
Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). The nonmoving party must demonstrate
the existence of specific facts in the record that create a genuine issue for trial. Krenik v.
Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). “[A] party opposing a properly
supported motion for summary judgment may not rest upon mere allegation or denials of
his pleading, but must set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
B.
Impact of Phase One on Plaintiffs’ Phase Two Claims
On February 2, 2015, the Court denied Defendants’ initial Motion for Summary
judgment with respect to Counts VIII, IX, and X. (Doc. No. 828 at 32-39.) The Court
also denied summary judgment on the Phase One claims that proceeded to trial. (Id. at
16-32.) The Court stated that “[a]t the heart of Plaintiffs’ Third Amended Complaint is
the contention that Minnesota’s civil commitment scheme for sex offenders constitutes a
punitive system of preventive detention in violation of the due process requirements of
the Fourteenth Amendment.” (Id. at 24.) The Court concluded that “[t]he record before
the Court indicates that Plaintiffs have presented sufficient evidence to allow a reasonable
factfinder to conclude that the civil commitment system is unconstitutionally punitive in
nature.” (Id. at 31.)
26
In analyzing Plaintiffs’ Phase Two claims, the Court indicated that Plaintiffs’
allegations as a whole influenced the Court’s conclusions, particularly with respect to
Counts IX and X. Specifically, concerning Count IX, the Court stated, “considering
Plaintiffs’ claims with respect to restrictions on their ability to freely associate and speak
and in light of all of Plaintiffs’ allegations regarding their conditions of confinement, the
Court finds that Plaintiffs have presented sufficient evidence to support a claim that
survives summary judgment.” (Id. at 36.) Similarly, with respect to Count X, the Court
held that “[c]onsidering Plaintiffs’ Fourth Amendment claim in conjunction with other
evidence presented by Plaintiffs surrounding the punitive nature of their confinement, the
Court determines that a genuine issue of material fact exists as to whether the search
policies in this case are reasonable and appropriate.” (Id. at 39.)
Although the Eighth Circuit’s opinion did not address Plaintiffs’ Phase Two
claims, its conclusions regarding Counts I and II minimized the constitutional
significance of Plaintiffs’ overall allegations regarding the punitive nature of confinement
at the MSOP. The Eighth Circuit noted the Court’s holding “that Minnesota’s civil
commitment scheme for sex offenders is a punitive system without the safeguards found
in the criminal justice system.” Karsjens, 845 F.3d at 402. It also considered the Court’s
determination that MCTA “results in a punitive effect and application contrary to the
purpose of civil commitment.” Id. Without implying that these findings were in error,
the Eighth Circuit nonetheless “reverse[d] the district court’s finding of a constitutional
violation” in Phase One. Id. The Court concludes that its analysis of Plaintiffs’ Phase
Two claims at this stage must be considered in light of the Eighth Circuit’s decision.
27
Furthermore, as Defendants have pointed out, the Phase One trial testimony of all
four Rule 706 Experts provides additional record evidence relevant to Plaintiffs’ Phase
Two claims. Rule 706 Expert Deborah McCulloch agreed that neither the MSOP’s mail
policy nor search policies were “outside the bounds of what you would expect at a highly
secure sex offender treatment center.” (Doc. No. 936 (“Tr. Vol. I”) at 147-48.) She
testified that the MSOP’s policies were developed with attention to the need to balance
security and treatment at the facility. (See Doc. No. 937 (“Tr. Vol. II”) at 304-05.)
Based on her review of the MSOP’s policies concerning searches, client transportation,
spiritual practices, media, mail, client movement, yard use, visitation, and client property,
McCulloch did not identify any particular problems. (Id. at 306-11, 321, 323-25.)
Dr. Naomi Freeman, another Rule 706 Expert, testified that she deferred to
McCulloch’s expertise concerning facility policies, but that she had no concerns with the
MSOP policies she had reviewed as written. (Doc. No. 939 (“Tr. Vol. IV”) at 876.) She
also explained that her own state’s civil commitment program subjects clients to room
searches, monitoring of mail, and restraints during transportation. (Id. at 877.) Freeman
agreed that “the policies [she] reviewed are within acceptable standards.” (Id. at 878.)
Dr. Robin Wilson and Dr. Michael Miner largely deferred to McCulloch and Freeman’s
expertise and opinions regarding the MSOP’s policies. (Doc. No. 938 (“Tr. Vol. III”) at
626-28; Doc. No. 941 (“Tr. Vol. VI”) at 1128.) Both of these experts generally agreed
that the MSOP administrators created the policies through the exercise of professional
judgment. (See Tr. Vol. III at 628; Tr. Vol. VI at 1173.)
28
The Court shall consider Defendants’ renewed Motion for Summary Judgment on
Plaintiffs’ Phase Two claims in light of the Eighth Circuit’s Karsjens opinion, the Court’s
conclusions above regarding Plaintiffs’ remaining Phase One claims, and the Rule 706
Expert testimony elicited during Phase One of trial.
C.
First and Fourteenth Amendment Religious Freedom (Count VIII)
In order to succeed on a claim under the Free Exercise Clause of the First
Amendment, Plaintiffs must establish that Defendants’ challenged policies and practices
place a “substantial burden” on Plaintiffs’ ability to practice their religion. See Patel v.
U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008); see also Weir v. Nix, 114 F.3d
817, 820 (8th Cir. 1997) (“[A] person claiming that a governmental policy or action
violates his right to exercise his religion freely must establish that the action substantially
burdens his sincerely held religious belief.”). To find a substantial burden, the court must
determine that the challenged practices: (1) “significantly inhibit or constrain conduct or
expression that manifests some central tenet of a person’s individual religious beliefs”;
(2) “meaningfully curtail a person’s ability to express adherence to his or her faith”; or
(3) “deny a person reasonable opportunities to engage in those activities that are
fundamental to a person’s religion.” Patel, 515 F.3d at 813 (citation omitted). A policy
which requires an individual to choose between “adhering to their religious beliefs or
facing serious disciplinary action” constitutes a substantial burden. Mueller v.
Mesojedec, Civ. No. 16- 277, 2017 WL 764866, at *5 (D. Minn. Jan. 6, 2017), report and
recommendation adopted, Civ. No. 16- 277, 2017 WL 758929 (D. Minn. Feb. 27, 2017).
However, the alleged burden must be “more than an inconvenience.” See id.
29
Where an institutional policy infringes a civilly committed individual’s
constitutional rights, courts in this District have applied a modified version of the
Supreme Court’s four-part test outlined in Turner v. Safley, 482 U.S. 48 (1987), to
determine whether the restriction is valid. See Ivey v. Mooney, Civ. No. 05-2666, 2008
WL 4527792, at *4 (D. Minn. Sept. 30, 2008); Stone v. Jesson, Civ. No. 11 -0951, 2017
WL 1050393, at *3 (D. Minn. Mar. 17, 2017). According to Turner, “when a prison
regulation impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.” Ivey, 2208 WL 4527792, at *4
(quoting Turner, 482 U.S. at 89). Because Turner arose in the context of prisoner
litigation, the modified version of this test applicable to civilly committed individuals
considers “whether [the policy or regulation] is reasonably related to legitimate
institutional and therapeutic interests.” See id. at *5, *10. The Turner standard requires
courts to consider the following four factors:
(1) whether there is a valid rational connection between the regulation and the
legitimate government interest it purports to further; (2) whether the inmate has an
alternative means of exercising his constitutional right; (3) the impact that
accommodation of the inmate’s right would have upon others, including inmates
as well as non-inmates; and (4) the absence of a ready alternative to the regulation.
Id. (quoting Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024, 1026 (8th Cir. 2004)).
The burden rests with the plaintiff “to prove that a restriction is not reasonably related to
the legitimate interest it purports to further.” Stone, 2017 WL 1050393, at *3.
Defendants contend that they are entitled to summary judgment on Plaintiffs’ First
Amendment free exercise claim because “the record contains no evidence of a substantial
burden on any client’s religious practice” or that the MSOP’s policies have “caused a
30
widespread substantial burden on clients’ religious practice, as required to demonstrate
class liability.” (Doc. No. 1097 at 26.) Further, Defendants argue that the evidence
establishes “that MSOP’s policies are crafted in order to balance the rights of clients with
therapeutic and security interests,” and assert that Plaintiffs have failed to establish that
the MSOP’s policies are not related to a legitimate therapeutic or institutional interest.
(Id. at 27.) Defendants also assert that they are entitled to summary judgment on this
claim to the extent it is based on the Fourteenth Amendment because Plaintiffs may not
simultaneously assert a Fourteenth Amendment claim based on conduct that is alleged to
violate the First Amendment, and even if they could, the record lacks evidence that
Plaintiffs’ fundamental rights have been violated by conduct that shocks that conscience.
Plaintiffs contend that the record establishes that the MSOP’s policies and
practices relating to religion impose a substantial burden on Plaintiffs’ practice of
religion. Plaintiffs point to a number of examples, including restrictions on room usage
for religious meetings, clothing and jewelry restrictions, restrictions on religious articles,
and restrictive policies governing meetings with clergy. Plaintiffs assert that they may
face disciplinary measures that could impact treatment progress if they fail to follow the
MSOP’s restrictive policies regarding religious practices. According to Plaintiffs,
“[t]hese policies and practices substantially burden Plaintiffs’ ability to engage in their
sincerely held religious beliefs and are not related to legitimate facility safety concerns or
therapeutic interests.” (Doc. No. 1100 at 30.) Plaintiffs also argue that they may assert a
Fourteenth Amendment claim in the alternative based on the conscience-shocking use of
disciplinary measures against individuals who seek to exercise their religious beliefs.
31
The Court concludes that Defendants are entitled to summary judgment on
Count VIII. Even if Plaintiffs could establish that Defendants’ policies respecting
religion impose a substantial burden on Class members’ religious practices, Plaintiffs
have failed to identify record evidence by which a jury could conclude that the MSOP’s
policies applied to the Class as a whole are not reasonably related to legitimate
therapeutic and institutional interests. The Court shall thus grant Defendants’ Motion for
Summary Judgment on Count VIII. 12
D.
First Amendment Freedom of Speech and Association (Count IX)
The First Amendment’s freedom-of-speech protections include “the right to utter
or to print, . . . the right to distribute, the right to receive, the right to read,” and the
freedom to exercise inquiry and thought. Griswold v. Connecticut, 381 U.S. 479, 482
(1965). The related First Amendment right of association includes “more than the right
to attend a meeting; it includes the right to express one’s attitudes or philosophies by
membership in a group or by affiliation with it or by other lawful means.” See id. at 483.
12
To the extent Plaintiffs’ free-exercise claim in Count VIII arises under the
Fourteenth Amendment, the Court concludes it is subject to dismissal. The Supreme
Court has held that “where a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior, that
Amendment, not the more generalized notion of substantive due process, must be the
guide for analyzing these claims.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 843
(1998) (citation omitted). This holding disposes of Plaintiffs’ religion-based claim to the
extent it alleges a burden on religion covered by the First Amendment. Even if the Court
were to conclude that any part of this claim separately states a substantive due process
violation under the Fourteenth Amendment, the Court further finds that Plaintiffs have
failed to raise a genuine issue of material fact as to whether any of Defendants’ conduct
with respect to religious practices is truly conscience-shocking to support liability.
Importantly, the Court’s conclusions on the viability of Plaintiffs’ classwide
religion-based claims in this case are not meant to foreclose committed individuals at the
MSOP from advancing individual religion-based claims in separate litigation.
32
Although civilly committed individuals retain these First Amendment protections, “[a]ny
form of involuntary confinement, whether incarceration or involuntary commitment, may
necessitate restrictions on the right to free speech.” Beaulieu v. Ludeman, 690 F.3d 1017,
1038-39 (8th Cir. 2012) (emphasis and citation omitted).
The same modified Turner analysis outlined above applies to claims that certain
institutional policies inhibit committed individuals’ First Amendment freedom-of-speech
and association rights. See Banks v. Jesson, Civ. No. 11- 1706, 2016 WL 3566207, at *3
(D. Minn. June 27, 2016); Williams v. Johnston, Civ. No. 14-369, 2015 WL 1333991, at
*7 (D. Minn. Jan. 28, 2015), report and recommendation adopted, Civ. No. 14-369, 2015
WL 1334015 (D. Minn. Mar. 25, 2015). The MSOP’s media policy restricting access to
certain objectionable content has been deemed constitutional within this District. See
Banks, 2016 WL 3566207, at *8 (“MSOP is constitutionally allowed to implement and
enforce a policy which prohibits detainees from possessing items depicting nudity and
visible genitals.”). Similarly, an MSOP mail policy permitting the inspection of mail and
an MSOP telephone policy imposing charges for calls and permitting monitoring have
survived First Amendment scrutiny under Turner. Semler v. Ludeman, Civ. No. 09-0732,
2010 WL 145275, at *11, *15-16 (D. Minn. Jan. 8, 2010).
Defendants argue that the MSOP’s policies challenged in Count IX should be
upheld consistent with governing Eighth Circuit precedent and multiple cases out of this
District. Specifically, Defendants point to caselaw which has upheld the MSOP’s mail
policy, phone policy, media policy, and vendor policy against First Amendment
challenge. Contrary to Plaintiffs’ position, Defendants argue, “there is no legal authority
33
for [the Plaintiffs’] belief that the conglomeration of a number of constitutional policies
can result in something unconstitutional.” (Doc. No. 1102 at 13.)
Plaintiffs contend that the MSOP’s policies infringe their speech and association
rights under the First Amendment. According to Plaintiffs, “[w]hen all of the MSOP’s
policies and practices affecting Plaintiffs’ freedom of speech and association are
considered together, it is clear that the MSOP does not limit its restrictions to those that
are necessary for therapeutic or security reasons.” (Doc. No. 1100 at 31.) In particular,
Plaintiffs point to the MSOP’s mail policy, visitation policy, media policy, and phone
policy. Plaintiffs dispute Defendants’ safety and security justification for such policies,
arguing that Defendants offer only conclusory assertions.
As with Count VIII, above, the Court concludes that summary judgment is
warranted on Plaintiffs’ First Amendment claims in Count IX. In particular, the Phase
One trial testimony of the Rule 706 Experts as well as caselaw evaluating the MSOP
policies informs this Court’s conclusions with respect to the policies challenged under
this claim. Plaintiffs have failed to raise a genuine dispute over whether Defendants’
policies implicating speech and association are an unreasonable restriction on Plaintiffs’
First Amendment rights as applied to the Class as a whole. The Court therefore grants
summary judgment to Defendants’ on Count IX. 13
13
Notably, the Court’s conclusions on the viability of Plaintiffs’ freedom-of-speech
and association claims in this case are not meant to foreclose committed individuals at the
MSOP from advancing individual freedom-of-speech and association claims in separate
litigation.
34
E.
Fourth Amendment Search and Seizure (Count X)
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. “[I]nvoluntarily civilly committed persons retain the Fourth
Amendment right to be free from unreasonable searches that is analogous to the right
retained by pretrial detainees.” Arnzen v. Palmer, 713 F.3d 369, 372 (8th Cir. 2013)
(quoting Beaulieu, 690 F.3d at 1028). To determine “reasonableness” in an institutional
setting, a court must balance “the need for the particular search against the invasion of
personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 558-59 (1979). In
applying this balancing test, courts are to consider: (1) the scope of the intrusion; (2) the
manner in which the search is conducted; (3) the justification for the search; and (4) the
location where the search is conducted. See id. at 559; Serna v. Goodno, 567 F.3d 944,
949 (8th Cir. 2009) (applying the Bell balancing test to evaluate the reasonableness of a
search at the MSOP). The degree of suspicion is a relevant component within this
balancing test, but it should not override the other identified factors. See Serna, 567 F.3d
at 950-51. A court is obligated to defer to the judgment of institutional officials “unless
the record contains substantial evidence showing their policies are an unnecessary or
unjustified response to problems of institutional security.” Arnzen, 713 F.3d at 373
(quoting Beaulieu, 690 F.3d at 1029). Furthermore, in evaluating search policies at the
MSOP, the Eighth Circuit has rejected the need to “strictly apply a ‘less intrusive means’
test.” Beaulieu, 690 F.3d at 1029; see also Serna, 567 F.3d at 955.
35
A number of courts have previously addressed the constitutionality of various
MSOP policies under the Fourth Amendment. “[R]andom room searches at MSOP” have
repeatedly survived Fourth Amendment scrutiny. See Housman v. Jesson, Civ.
No. 15- 2209, 2016 WL 7231600, at *3 (D. Minn. Dec. 14, 2016); see also Daniels v.
Jesson, Civ. No. 13-736, 2014 WL 3629874, at *6 (D. Minn. July 22, 2014). A court in
this District has also held post-work pat searches at the MSOP to be constitutional. See
Semler, 2010 WL 145275, at *19. In Beaulieu, the Eighth Circuit upheld the MSOP’s
unclothed visual body search policy under the facts of that case. See Beaulieu, 690 F.3d
at 1030. Evaluating the constitutionality of such searches, however, is a fact-dependent
inquiry. See Allan v. Ludeman, Civ. No. 10-176, 2011 WL 978768, at *4 (D. Minn. Jan.
18, 2011), report and recommendation adopted, Civ. No. 10-176, 2011 WL 978658 (D.
Minn. Mar. 17, 2011) (“[S]trip searches conducted at MSOP facilities may or may not be
reasonable, and thus may or may not be constitutional, depending on the
circumstances.”). The same is true of the use of shackles and restraints. See id. at *6.
With respect to Plaintiffs’ Fourth Amendment claims, Defendants emphasize that
the Eighth Circuit has previously evaluated the MSOP search policies and acknowledged
the need to maintain safety and security at the MSOP. Defendants also point to expert
testimony which supports the validity and reasonableness of the MSOP’s search policies.
According to Defendants, the MSOP’s room search policy, pat-search policy, unclothed
visual body search policy, and restraint policy have all survived constitutional challenges
in prior cases. Defendants argue that “Plaintiffs failed to provide anything more than
36
mere allegations regarding their search and seizure claim, which is insufficient to survive
summary judgment.” (Doc. No. 1102 at 15.)
Plaintiffs contend that “[i]t is clear that the MSOP’s strip-search policy is not
therapeutic.” (Doc. No. 1100 at 33.) According to Plaintiffs, these unclothed visual body
searches are not conducted based on any consideration of individual risk. Plaintiffs also
allege that the MSOP’s pat-search and restraint policies similarly fail to account for
individualized suspicion or risk level. In addition, Plaintiffs challenge the MSOP’s
room-search policies. Plaintiffs argue that the caselaw identified by Defendants failed to
consider “whether the policies were appropriately applied to all MSOP patients or
whether application on an individual basis would be less restrictive.” (Id. at 35.)
“Considering all of the MSOP’s search policies together,” Plaintiffs contend, “it is
apparent that Defendants do not take less intrusive measures into consideration, nor are
all of these policies necessary for the safety of the facility.” (Id.)
The Court determines that Defendants are entitled to summary judgment on
Plaintiffs’ classwide challenge to the MSOP’s policies implicating the Fourth
Amendment. The record lacks “substantial evidence showing [that the MSOP’s] policies
are an unnecessary or unjustified response to problems of institutional security,” and the
Court is thus bound to defer to Defendants’ institutional judgment regarding the need for
particular search policies. See Arnzen, 713 F.3d at 373 (quoting Beaulieu, 690 F.3d
at 1029). Furthermore, caselaw has consistently affirmed the constitutionality of various
search policies at the MSOP, and the Rule 706 Expert testimony suggests that the policies
are reasonable for a sex offender civil commitment facility. The Court concludes that the
37
record fails to support Plaintiffs’ classwide challenge alleging that the punitive nature of
the MSOP renders its search and seizure policies unconstitutional under the Fourth
Amendment. Therefore, the Court grants summary judgment to Defendants on
Count X. 14
IV.
Defendants’ Motion For Final Apportionment of Rule 706 Expert Costs
Finally, Defendants ask the Court to make a final determination on the
apportionment of costs for the Rule 706 Experts in this matter. The Court appointed the
Rule 706 Experts to aid the Court in its resolution of this complex litigation. (See Doc.
No. 354 at 4 (“To the extent Plaintiffs seek the appointment of expert witnesses for the
benefit of the Court Pursuant to Rule 706, the motion is GRANTED.”).) In its Order
appointing the Rule 706 Experts, the Court stated that “Pursuant to Rule 706(c), the
compensation shall be charged as costs in this litigation.” (Doc. No. 393 at 5.) The
Court thereafter ordered that “[w]ithout prejudice to subsequent adjustment, [the Rule
706 Expert] costs shall be initially allocated to Defendants.” (Doc. No. 427 at 75.)
Experts appointed by the court pursuant to Federal Rule of Evidence 706 are
“entitled to a reasonable compensation as set by the court.” Fed. R. Evid. 706(c). Such
compensation shall be paid “by the parties in the proportion and at the time that the court
directs—and the compensation is then charged like other costs.” Fed. R. Evid. 706(c)(2);
see also U.S. Marshals Serv. v. Means, 724 F.2d 642, 648 (8th Cir. 1983), on reh’g,
741 F.2d 1053 (8th Cir. 1984). Pursuant to Federal Rule of Civil Procedure 54(d), “costs
14
Significantly, the Court’s conclusions on the viability of Plaintiffs’ search and
seizure claims in this case are not meant to foreclose committed individuals at the MSOP
from advancing individual search and seizure claims in separate litigation.
38
. . . should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d). Such costs may be
taxed by the clerk and are then subject to the court’s review upon motion. See Fed. R.
Civ. P. 54(d)(1). “Under Rule 54(d), allocation of costs is within the sound discretion of
the trial court.” Cross v. Gen. Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983).
Defendants argue that the Court should order Plaintiffs to pay for the Rule 706
Expert costs. According to Defendants, “[h]aving both asked for the appointment of the
Rule 706 Experts and lost on appeal, Plaintiffs cannot plausibly argue that Defendants
should have to pay the Rule 706 Experts.” (Doc. No. 1097 at 12.) In addition,
Defendants emphasize that the Plaintiffs’ indigent status does not preclude the Court
from apportioning the cost of expert compensation to them. To support their request,
Defendants point to Federal Rule of Civil Procedure 54(d)(1) under which a prevailing
party may recover its costs in litigation. In short, Defendants argue, “Plaintiffs[] lost and
should have to pay for the experts they wanted.” (Doc. No. 1102 at 8.)
Plaintiffs dispute Defendants’ characterization that the Court appointed the
Rule 706 Experts for their benefit, noting that the Rule 706 Experts’ work was developed
based on input from both parties. Plaintiffs also emphasize “that Defendants have relied
on, and continue to rely on, the Rule 706 Experts’ findings and testimony.” (Doc.
No. 1100 at 23.) Finally, Plaintiffs point out that they are indigent and argue that the
Court may appropriately apportion the Rule 706 Expert costs to Defendants on this basis.
The Court concludes that an order apportioning the costs of the Rule 706 Experts
to Plaintiffs would be premature at this stage. The Court reserves the right to revisit the
39
issue of apportioning these costs pursuant to Rule 54 following the entry of final
judgment and upon complete briefing by the parties.
CONCLUSION
The Court’s determinations, above, resolve Plaintiffs’ remaining Phase One and
Phase Two claims. After many years of vigorous advocacy on all sides, the Karsjens
litigation has effectively reached its end. With respect to Plaintiffs’ remaining Phase One
claims, the Court’s conclusions are largely dictated by the Eighth Circuit’s decision
reversing this Court’s finding of a constitutional violation under the Fourteenth
Amendment. In light of the applicable substantive due process standard outlined in the
Eighth Circuit’s opinion and its broad holding that “the class plaintiffs have failed to
demonstrate that any of the identified actions of the state defendants or arguable
shortcomings in the MSOP were egregious, malicious, or sadistic as is necessary to meet
the conscience-shocking standard,” Karsjens, 845 F.3d at 410-11, the Court determines
that Defendants are not liable for the remaining counts in Phase One. Concerning
Defendants’ Phase Two claims challenging the conditions of confinement at the MSOP
under the First and Fourth Amendments on a classwide basis, the Court concludes that
there is no genuine issue of material fact in dispute and Defendants are entitled to
judgment as a matter of law.
With respect to Phase Two, the Court emphasizes that its conclusions solely
address Plaintiffs’ classwide claims of systemic constitutional violations. To the extent
individual class members residing at the MSOP seek to raise individual claims based on
alleged violations of their constitutional rights, it is this Court’s view that such claims are
40
not foreclosed by the Court’s determinations relating to Counts VIII, IX, and X of
Plaintiffs’ Third Amended Complaint. This suggestion applies, for example, to
individual claims that the MSOP’s application of particular policies has infringed a
committed individual’s right to freely exercise his religion, to exercise protected speech
rights, to freely associate with individuals both within and outside of the MSOP, and to
be free from an unreasonable search.
A number of lawsuits filed by civilly committed individuals at the MSOP are
currently stayed pending the resolution of this case. (See Doc. Nos. 1080, 1083.) As
noted above, it is this Court’s view that its conclusions regarding Plaintiffs’ classwide
claims will leave any individual claims in these and future lawsuits unresolved. The
prospect of these many individual lawsuits going forward may be a compelling reason for
all parties to sit down in an attempt to reach an agreement to settle any remaining issues
in this case, with or without the assistance of the Court, instead of incurring the
significant costs and delay associated with pursuing an appeal. To do so might well serve
the best interests of the parties, the public interest, and the interests of justice.
Finally, the Court expresses its view that some of the facts revealed during the
lengthy Phase One trial in this matter are indeed shocking to this Court’s conscience. In
particular, the Court finds the circumstances surrounding the confinement of Rhonda
Bailey, the MSOP’s sole civilly committed female, to be truly conscience-shocking.
Furthermore, the Court views the continued confinement of elderly individuals with a
low likelihood of re-offense as an egregious affront to liberty, particularly in light of the
pervasive sense of hopelessness at the MSOP. Similarly, the confinement of individuals
41
with cognitive disabilities or juvenile-only offenders who could safely reside in a less
restrictive alternative facility or in the community remains of great concern to the Court.
Notwithstanding these observations and concerns, however, the Eighth Circuit’s
reversal of this Court’s liability findings in large part compels the conclusions the Court
reaches today. The Court hopes that the public and all stakeholders will carefully
consider the complex issues raised by this litigation, moving forward in a manner that
balances the interests of public safety, fundamental justice, and basic human dignity.
Justice requires no less.
ORDER
Based upon the foregoing, IT IS HEREBY ORDERED that:
1.
Plaintiffs’ remaining Phase One claims (Counts III, V, VI and VII) are
DISMISSED WITH PREJUDICE.
2.
Defendants’ Motion for Summary Judgment on Phase Two (Counts VIII,
IX, and X) (Doc. No. [1095]) is GRANTED and these counts are DISMISSED WITH
PREJUDICE.
3.
Defendants’ Motion for Final Apportionment of Rule 706 Expert Costs
(Doc. No. [1095]) is DENIED WITHOUT PREJUDICE to renewal in connection with
a Motion for Costs pursuant to Federal Rule of Civil Procedure 54.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: August 23, 2018
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
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