Karsjens et al v. Minnesota Department of Human Services et al
Filing
427
MEMORANDUM OPINION AND ORDER. 1. Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. No. 374 ) is GRANTED IN PART and DENIED IN PART as follows: a. With respect to Plaintiffs' equal protection claim, the motion i s GRANTED. Count X of Plaintiffs' Second Amended Complaint (Doc. No. 301 ) is thus DISMISSED. b. To the extent Plaintiffs may seek monetary damages against Defendants in their official capacities, the motion is GRANTED. c. In all other respects , Defendants' motion is DENIED. 2. Plaintiffs' Motion for Declaratory Judgment (Doc. No. 360 ) is DENIED WITHOUT PREJUDICE. 3. Plaintiffs' Motion for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re-Evaluate Class Members (Doc. No. 364 ) is DENIED WITHOUT PREJUDICE. 4. Plaintiffs' Motion for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program (Doc. No. 368 ) is DENIED WITH OUT PREJUDICE. 5. With respect to the experts appointed pursuant to Rule 706 of the Federal Rules of Evidence (see Doc. No. 393 ), the Court orders the following: a. The experts' work shall include, but shall not be limited to: i. Evaluating al l class members54 and issuing reports and recommendations as to: (a) each class members current level of dangerousness (current risk assessment), including whether each class member poses a "real, continuing, and serious danger to society" ; (b) whether each class member is actually eligible for discharge under the applicable statutory provisions or otherwise no longer meets the statutory criteria for initial commitment (or should otherwise be recommended for provisional or full discha rge); (c) whether each class member is placed in the appropriate phase of treatment; (d) whether each class member would be a candidate for a less restrictive facility; and (e) the specific need and parameters for less restrictive alternative facilit ies,55 including the operation of such facilities; ii. Reviewing the current treatment program at MSOP and its implementation to determine whether the program meets professional standards of care and treatment for sex offenders and issuing recommenda tions as to any changes that should be made to the treatment program; and iii. Reviewing current MSOP policies and practices with regard to the conditions of confinement to determine whether they satisfy the balance between safety concerns and a ther apeutic environment and making recommendations for any changes that should be made to the conditions of confinement at both the Moose Lake and St. Peter facility. iv. The experts shall also report to the Court on the following: (a) the current profes sional standards for the treatment of civilly committed sex offenders and the extent to which MSOP's program design reflects those standards; (b) how other civil commitment programs have reintegrated civilly committed sex offenders into the comm unity, with particular attention to community relations; and (c) how other states, if any, are providing treatment and management of lower-functioning civilly committed sex offenders in community settings. b. The experts' work shall begin with, but will in no way be limited to, the following: i. Reviewing MSOP treatment and screening program/process; ii. Conducting site visits to St. Peter and Moose Lake and interviewing patients and staff at each facility; iii. Reviewing 20% to 25 7; of resident charts, with the aim of reviewing 100% of charts for those individuals in the Assisted Living Unit, the Alternative Program Units, and the Young Adult Unit; and iv. Identifying residents who are not receiving appropriate services and making recommendations related thereto. c. In conducting their work, the experts shall have complete and unrestricted access to documents they may require, including the reference documents and MSOP policy documents set forth above as well as pa tient files and clinical documents. d. Within fourteen (14) days of the date of this Order, and in the format requested by the experts, Defendants shall provide the experts with all of the reference documents and MSOP policies and procedures request ed by the experts. (See Doc. No. 422 .) e. DHS, and all officials, staff, consultants, and contractors for DHS, are directed to provide the appointed experts with full and complete access to all residents and staff as well as all relevant informatio n, documents, and records requested by the experts. Such access shall include, but shall not be limited to, the following: i. Access to all patient files and related documentation; ii. Access to meet with, interview, or otherwise communicate with MSO P patients; iii. Access to all MSOP policymakers as well as all policies and related documentation; iv. Access to review the current conditions of confinement at MSOP and related policies and rules; v. Access to review all aspects of the current trea tment program provided by MSOP; and vi. Access to privately meet with, interview, or otherwise communicate with DHS officials, staff, consultants, and contractors for DHS. vii. DHS shall also create and provide any aggregation or analysis of data re quested by the appointed experts. f. In conducting their work, the experts may call upon the MPET members previously appointed by the Court (see Doc. No. 281 ) as well as Roberta Opheim, Minnesota State Ombudsman for Mental Health and Developmental Disabilities, as necessary. g. The experts may convene meetings, confer with relevant individuals and groups, attend case-related court proceedings, and review all documents submitted to the Court. The parties shall henceforth serve the experts with all such papers. h. The experts shall have ex parte access to the Court and its Technical Advisor for logistical and organizational purposes, subject to the limitations of Rule 706. i. To facilitate the integrity and effectiveness of the experts wo rk, their communications with one another and work product (such as draft documents, correspondence, e-mails, and conversations) shall be privileged, confidential, and not admissible. j. The experts' work will be overseen and coordinated by Magi strate Judge Jeffrey J. Keyes, with the assistance of the Court's Technical Advisor. k. The parties shall meet and confer, facilitated by the Court's Technical Advisor if necessary, to establish an interim budget deposit for the experts and a mechanism for payment. Without prejudice to subsequent adjustment, such costs shall be initially allocated to Defendants. (Written Opinion). Signed by Judge Donovan W. Frank on 2/19/2014. (BJS)
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/JJK)
Plaintiffs,
MEMORANDUM
OPINION AND ORDER
v.
Lucinda Jesson, Dennis Benson, Kevin
Moser, Tom Lundquist, Nancy Johnston,
Jannine Hébert, and Ann Zimmerman,
in their individual and official capacities,
Defendants.
Daniel E. Gustafson, Esq., David A. Goodwin, Esq., Karla M. Gluek, Esq., and Raina
Borrelli, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.
Nathan A. Brennaman, Ricardo Figueroa, Steven H. Alpert, and Max H. Kieley,
Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for
Defendants.
Eric S. Janus, Esq., William Mitchell College of Law; and Teresa J. Nelson, Esq., ACLU
of Minnesota, counsel for Amici Curiae.
INTRODUCTION
This matter is before the Court on Plaintiffs’ Motion for Declaratory Judgment
(Doc. No. 360), Plaintiffs’ Motion for Preliminary Injunction to Provide Less Restrictive
Alternative Treatment Facilities and to Re-Evaluate Class Members (Doc. No. 364),
Plaintiffs’ Motion for Preliminary Injunction for the Appointment of a Special Master to
Oversee the Minnesota Sex Offender Program (Doc. No. 368), and Defendants’ Motion
to Dismiss Plaintiffs’ Second Amended Complaint (Doc. No. 374). For the reasons set
forth below, the Court grants Defendants’ motion to dismiss only with respect to Count X
and denies Defendants’ motion in all other respects; the Court denies Plaintiffs’ motions
without prejudice at this early stage of the proceedings. 1
BACKGROUND
The fourteen named Plaintiffs in this matter are all civilly committed to the
Minnesota Sex Offender Program (“MSOP”). According to Plaintiffs, “MSOP is
intended to be a treatment facility,” and “[a]ll persons civilly committed as SPP 2 or SDP 3
1
The Court’s concluding remarks may also be found below. See infra Conclusion.
2
The “Minnesota Commitment and Treatment Act: Sexually Dangerous Persons
and Sexual Psychopathic Personalities” defines a sexual psychopathic personality
(“SPP”) as:
the existence in any person of such conditions of emotional instability, or
impulsiveness of behavior, or lack of customary standards of good
judgment, or failure to appreciate the consequences of personal acts, or a
combination of any of these conditions, which render the person
irresponsible for personal conduct with respect to sexual matters, if the
person has evidenced, by a habitual course of misconduct in sexual matters,
an utter lack of power to control the person’s sexual impulses and, as a
result, is dangerous to other persons.
Minn. Stat. § 253D.02, subd. 15 (formerly Minn. Stat. § 253B.02, subd. 18b).
3
The “Minnesota Commitment and Treatment Act: Sexually Dangerous Persons
and Sexual Psychopathic Personalities” defines a sexually dangerous person (“SDP”) as:
a person who: (1) has engaged in a course of harmful sexual conduct as
defined in subdivision 8; (2) has manifested a sexual, personality, or other
(Footnote Continued on Next Page)
2
enter the MSOP treatment program.” (Doc. No. 301, Second. Am. Compl. ¶ 67.) The
commitment rate, policies, and standards for commitment for sex offenders in Minnesota
have changed over time. See Thompson v. Ludeman, Civ. No. 11-1704, Doc. No. 39
(“Thompson R&R”) at 35-39 (providing a comprehensive history of sex offender civil
commitment in Minnesota). And the population of MSOP clients has grown dramatically
since the program’s inception. 4 See id.; (Second Am. Compl. ¶ 65.)
As alleged in the Complaint, 5 “[t]he only MSOP facilities are the secure treatment
locations at Moose Lake and St. Peter,” and “MSOP does not provide for any less
restrictive alternatives to confinement at Moose Lake or St. Peter, such as halfway houses
or other less secure facilities.” (Second Am. Compl. ¶ 68.) Plaintiffs allege, and
Defendants do not dispute, that “only two MSOP patients ha[ve] ever been placed on any
(Footnote Continued From Previous Page)
mental disorder or dysfunction; and (3) as a result, is likely to engage in
acts of harmful sexual conduct as defined in subdivision 8.
Minn. Stat. § 253D.02, subd. 16 (formerly Minn. Stat. § 253B.02, subd. 18c).
4
Relying on the Legislative Auditor’s Report, Plaintiffs’ Complaint alleges:
The population of people civilly committed to the MSOP has grown
dramatically since the program was started. In 1990, there were fewer than
thirty patients civilly committed as sex offenders. Legislative Auditor
Report at 4. That number grew to 149 in 2000 and to 575 in 2010. Id. The
Legislative Auditor Report projected that in 2020, there will be 1109 people
civilly committed to the MSOP based on the current growth trend in
commitments. Id.
(Second Am. Compl. ¶ 65 (citation formatting added).) According to Defendants,
“MSOP currently has 698 clients . . . .” (Doc. No. 385, Hébert Aff. ¶ 5.)
5
Throughout this opinion, the Court refers to Plaintiffs’ Second Amended
Complaint (Doc. No. 301) as the “Complaint.”
3
kind of provisional discharge” and that Defendants have “never unconditionally released
anyone committed to MSOP.” (Id. ¶¶ 114, 207, 323.) Based on these allegations, among
others, Plaintiffs raise several challenges to MSOP and the Minnesota statutes governing
civil commitment and treatment of sex offenders, Chapter 253B (recodified as
Chapter 253D).
I.
Relevant History
In March 2011, the Office of the Legislative Auditor for the State of Minnesota
(“OLA”) issued an Evaluation Report on the Civil Commitment of Sex Offenders.
(Office of the Legislative Auditor, State of Minnesota, Evaluation Report: Civil
Commitment of Sex Offenders (2011) (“OLA Report”), available at
http://www.auditor.leg.state.mn.us/ped/pedrep/ccso.pdf.) Plaintiffs’ Complaint relies
heavily on the findings of the OLA Report. (See generally Second Am. Compl.
¶¶ 57-209.) The summary of the findings of the OLA included that: “Minnesota’s
population of civilly committed sex offenders has grown significantly in the last decade
and is the highest in the nation on a per capita basis” 6 (OLA Report at x); “[t]he costs of
6
The OLA Report further stated:
From 1990 to 2000, Minnesota’s population of civilly committed offenders
grew from less than 30 to 149. As of January 1, 2011, the number has
grown to 656, including 605 at DHS facilities and 51 at Minnesota
correctional facilities. In 2010, Minnesota had more civilly committed sex
offenders than every state except California and Florida. In addition,
Minnesota had by far the largest number of civilly committed sex offenders
per capita in the country. Current projections indicate that, under current
policies, significant growth is likely in the future. According to DHS, the
number of civilly committed sex offenders at DHS facilities is expected to
nearly double between 2010 and 2020.
(Footnote Continued on Next Page)
4
civil commitment in MSOP are high relative to incarceration and other alternatives” 7
(id.); “[t]here is considerable variation in commitment practices, particularly among
prosecutors” (id. at xi); “Minnesota lacks reasonable alternatives to commitment at a high
security facility” (id.); “[w]ith the large influx of commitments since 2003, MSOP has
struggled to provide adequate treatment and maintain a therapeutic environment,
particularly at its Moose Lake facility” 8 (id. at xii); and “[n]o civilly committed sex
offender has ever been discharged from MSOP” 9 (id.).
(Footnote Continued From Previous Page)
(OLA Report at 1; see also Second Am. Compl. ¶ 65 (citing OLA Report at 4).)
7
According to the OLA Report, the “annual cost per resident in MSOP is $120,000,”
which is “at least three times the cost of incarcerating an inmate at a Minnesota
correctional facility.” (OLA Report at x.)
8
In that regard, the OLA Report found, among other things, that:
Outside advocates and experts, MSOP clients, and some MSOP staff have
complained that, historically and currently: (1) some MSOP staff held
disrespectful, negative, punitive, and untherapeutic attitudes towards
clients; and (2) that the culture at the facilities was counter-therapeutic. In
our review of the records of clients who had been in the program for at least
four years, we found evidence that clients were sometimes treated with
suspicion, their reasonable frustrations were considered treatment problems,
and they were sometimes punished for behavior that appeared to be normal.
Under some past MSOP administrations, the program focused so much on
client behaviors that any infraction could result in a client failing to
progress or being sent backwards in treatment. The program still struggles
with staff who are overly suspicious of clients or who expect impossible
perfection. This can make progress in treatment difficult.
(OLA Report at 66.)
9
The OLA Report also noted that: “Minnesota has a release standard for offenders
who are civilly committed that, in practice, is stricter than other states. MSOP does not
(Footnote Continued on Next Page)
5
On July 24, 2012, this Court certified a class in this matter pursuant to
Rule 23(b)(2) of the Federal Rules of Civil Procedure, consisting of “[a]ll patients
currently civilly committed” to MSOP (together, “Plaintiffs” or the “class members”).
(Doc. No. 203 at 11.) The Court appointed the fourteen named Plaintiffs to serve as class
representatives. (Id. at 12.)
On August 15, 2012, the Court ordered that the Minnesota Department of Human
Services (“DHS”) Commissioner, Lucinda Jesson, create a Sex Offender Civil
Commitment Advisory Task Force (the “Task Force”) to “examine and provide
recommended legislative proposals to the Commissioner” on each of the following
topics: (1) “[t]he civil commitment and referral process for sex offenders”; (2) “[s]ex
offender civil commitment options that are less restrictive than placement in a secure
treatment facility”; and (3) “[t]he standards and processes for the reduction in custody for
civilly committed sex offenders.” (Doc. No. 208 at 2.) The Task Force issued its final
recommendations on December 2, 2013. (Sex Offender Commitment Advisory Task
Force, Final Report (2013) (“Task Force Report”), available at
https://edocs.dhs.state.mn.us/lfserver/Public/DHS-6641B-ENG.)
On November 9, 2012, the Court ordered Commissioner Jesson to create an
MSOP Program Evaluation Team (“MPET” or the “Evaluation Team”) to “review the
(Footnote Continued From Previous Page)
support any discharges without completion of the treatment program. Most states
explicitly allow for discharges if an offender no longer meets the commitment criteria.”
(OLA Report at xii.)
6
treatment records of clients who have been participating for at least 36 months in a
treatment phase and who have not yet advanced to the next treatment phase.” (Doc.
No. 275 ¶ 3.) The Evaluation Team was further tasked with determining “the need, scope,
and frequency of any future MSOP treatment program evaluation.” (Id. ¶ 5.) The Court
appointed five individuals to serve as MPET members on December 13, 2012. (Doc.
No. 281 at 2.) The Evaluation Team filed its Report with the Court on April 26, 2013.
(Doc. No. 294-1, Report on the Evaluation of Treatment Phase Progression at the
Minnesota Sex Offender Treatment Program (MSOP) (“MPET Report”).)
The parties engaged in settlement negotiations throughout 2012 and 2013 without
result. 10 On August 8, 2013, Plaintiffs filed a Second Amended Complaint in this matter.
(See generally Second Am. Compl.)
On August 1, 2013, DHS issued a request for proposals for the development of
“less restrictive but highly supervised placements for individuals who would be
provisionally discharged after having been initially committed to a secure treatment
10
During the 2013 legislative session, Senator Kathy Sheran introduced a bill,
Senate File 1014, which included some provisions that would have implemented initial
Task Force recommendations. SF 1014, 88th Leg., 2d Engrossment (Minn. 2013-2014),
available at
https://www.revisor.mn.gov/bills/text.php?number=SF1014&version=2&session=ls88&s
ession_year=2013&session_number=0; (see Jesson Aff. ¶¶ 9-10.) While the bill passed
the full Senate on May 14, 2013, with bipartisan support, the bill did not become law
because the companion bill in the House of Representatives (House File 1139), authored
by Representative Tina Liebling, did not pass the full House. (See Jesson Aff. ¶ 10);
SF 1014 Status in the Senate for the 88th Legislature (2013-2014), Minn. State Leg.,
https://www.revisor.mn.gov/bills/bill.php?b=senate&f=SF1014&ssn=0&y=2013.
7
facility.” (Doc. No. 387, Jesson Aff. ¶ 16, Ex. C; see Doc. No. 367, Gustafson Aff. ¶ 3,
Ex. A.)
On September 12, 2013, Commissioner Jesson sent a letter to state legislators
identifying “a small group of [MSOP] clients who are low functioning and could be
transferred to an existing DHS site” in Cambridge, Minnesota, which she expected “to
become available in the spring of 2014 for use by MSOP later in 2014.” (See Doc.
No. 341 at 2 (quoting Jesson letter).) 11
On November 13, 2013, Governor Mark Dayton directed that Commissioner
Jesson “oppose any future petitions by sexual offenders for provisional release” and
“suspend [DHS’s] plans to transfer any sexual offenders to other tightly supervised
facilities, such as Cambridge,” until after the following conditions have been met:
1.
The Sex Offender Civil Commitment Advisory Task Force has
issued its findings and recommendations . . . .
2.
The legislature in 2014 has had the opportunity to review existing
statutes and make any necessary revisions to protect the public’s safety: the
degrees of criminal sexual misconduct, the penalties for those crimes, the
civil commitment of sexual offenders for extended treatment, the
requirements for discharge, and the subsequent services, supervision, and
public protection. None of [DHS’s] programs cited above [including
11
Commissioner Jesson announced that she would recommend that the Supreme
Court Appeals Panel (“SCAP”) approve the transfer of six individuals with intellectual
disabilities from MSOP’s Moose Lake facility to the Minnesota Specialty Health System
facility in Cambridge, Minnesota. See Rupa Shenoy, Some Sex Offenders Could Go to
Less Secure Setting, MPR News (Sept. 12, 2013),
http://www.mprnews.org/story/2013/09/12/sex-offenders-could-go-to-less-secure-setting;
see also Brad Schrade, State Seeks to Move Some Sex Offenders to Less Secure Setting,
Star Trib. (Sept. 12, 2013), http://www.startribune.com/local/223495201.html
(“Minnesota’s sex-offender treatment program plans to move as many as a dozen
low-functioning and ailing offenders from its high-security treatment campuses to a
lower-security facility in Cambridge next year if the state receives court approval.”).
8
provisional releases from MSOP] will resume until after the legislature has
completed its work during the upcoming legislative session.
3.
The legislature and our administration have agreed to the additional
facilities, programs, and staff necessary for this program’s successful
implementation and have provided sufficient funding for them.
(Doc. No. 371 (“Gustafson Aff. II”) ¶ 4, Ex. B at 2-3; Jesson Aff. ¶ 19, Ex. D (“Dayton
Letter”) at 2-3.)
On December 6, 2013, the Court appointed four experts pursuant to Rule 706 of
the Federal Rules of Evidence. (Doc. No. 393 at 1-2.) Thereafter, the parties submitted
their respective proposals with respect to the work of the experts. (Doc. No. 421.) On
January 22, 2014, the Court met with the experts, and on February 5, 2014, the Court
received the experts’ proposed plan of action. (Doc. No. 422.) The Court will address
the responsibilities of the experts below.
II.
Plaintiffs’ Claims
Plaintiffs’ Complaint asserts the following thirteen counts against Defendants:
(1) Failure to Provide Treatment in Violation of the Fourteenth Amendment to the
United States Constitution and the Minnesota Constitution; (2) Failure to Provide
Treatment in Violation of the Minnesota Civil Commitment and Treatment Act;
(3) Denial of Right to be Free from Punishment in Violation of the Fourteenth
Amendment to the United States Constitution and the Minnesota Constitution; (4) Denial
of Less Restrictive Alternative Confinement in Violation of the Fourteenth Amendment
to the United States Constitution and the Minnesota Constitution; (5) Denial of Right to
Be Free from Inhumane Treatment in Violation of the Fourteenth Amendment to the
United States Constitution and the Minnesota Constitution; (6) Denial of the Right to
9
Religion and Religious Freedom in Violation of the First and Fourteenth Amendments to
the United States Constitution; (7) Unreasonable Restriction of Free Speech and Free
Association in Violation of the First Amendment to the United States Constitution and
the Minnesota Constitution; (8) Unreasonable Searches and Seizures in Violation of the
Fourth Amendment to the United States Constitution and the Minnesota Constitution;
(9) Minnesota Statute § 253B is Unconstitutional As Applied; (10) Minnesota Statute
§ 253B Violates the Equal Protection Clause of the Fourteenth Amendment As Applied;
(11) Violation of Court Ordered Treatment; (12) Breach of Contract by Defendants
Jesson, Benson, Moser, Lundquist, Johnston, and Hébert; and (13) Tortious Interference
with Contract and Intentional Violation of Minn. Stat. § 253B.03, subd. 7 by Defendants
Jesson, Benson, Moser, Lundquist, Johnston, and Hébert. (Second Am. Compl.
¶¶ 211-325.)
Defendants now move to dismiss, and Plaintiffs seek various forms of injunctive
and declaratory relief.
DISCUSSION
I.
Motion to Dismiss
Defendants move for the dismissal of Plaintiffs’ Complaint for failure to state a
claim upon which relief can be granted and for lack of subject matter jurisdiction
pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. (Doc.
No. 374 at 1-2.) Defendants assert that, because Plaintiffs have failed to state a viable
claim under 42 U.S.C. § 1983, Defendants are entitled to qualified immunity. (Id. at 2.)
10
A.
Legal Standard
In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court assumes all
facts in the complaint to be true and construes all reasonable inferences from those facts
in the light most favorable to the complainant. Morton v. Becker, 793 F.2d 185, 187 (8th
Cir. 1986). In doing so, however, a court need not accept as true wholly conclusory
allegations, Hanten v. Sch. Dist. of Riverview Gardens, 183 F.3d 799, 805 (8th Cir. 1999),
or legal conclusions drawn by the pleader from the facts alleged. Westcott v. City of
Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). A court may consider the complaint,
matters of public record, orders, materials embraced by the complaint, and exhibits
attached to the complaint in deciding a motion to dismiss under Rule 12(b)(6). Porous
Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
To survive a motion to dismiss, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Although a complaint need not contain “detailed factual allegations,” it must
contain facts with enough specificity “to raise a right to relief above the speculative level.”
Id. at 555. As the United States Supreme Court recently reiterated, “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,” will not
pass muster under Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555). In sum, this standard “calls for enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of [the claim].” Twombly, 550
U.S. at 556.
11
B.
Plaintiffs’ Claims
The Court evaluates each of Plaintiffs’ thirteen claims in turn below.
1.
Claims Pertaining to Punitive Nature of Confinement
At the heart of Plaintiffs’ Complaint in this action 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. Plaintiffs assert several substantive due process claims in that regard.
Repeatedly throughout their Complaint, Plaintiffs claim that due process requires “that
the conditions and duration of confinement have some reasonable relation to the purpose
for which persons are committed,” and that, while “[c]ivilly committed persons may be
subjected to liberty restrictions reasonably related to legitimate government objectives,”
those restrictions must not be “tantamount to punishment as determined by reasonable
professional judgment.” (E.g., Second Am. Compl. ¶¶ 228, 250.) Plaintiffs maintain that
“[c]onfinement that continues after the person no longer meets the statutory requirements
for commitment violates due process.” (E.g., id. ¶ 250.)
With respect to Counts III, IV, and V, Plaintiffs contend that Defendants have
violated the Fourteenth Amendment by denying Plaintiffs their substantive due process
rights to less restrictive alternative confinement and to be free from punishment and
12
inhumane treatment. Count IX sets forth Plaintiffs’ claim that the commitment statutes
are unconstitutional as applied. 12
The Fourteenth Amendment provides that “[n]o state shall . . . deprive any person
of life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1.
“[T]he Due Process Clause contains a substantive component that bars certain arbitrary,
wrongful government actions regardless of the fairness of the procedures used to
implement them.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (internal quotation
omitted); see also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (noting that
the Supreme Court has “emphasized time and again that the touchstone of due process is
protection of the individual against arbitrary action of government”) (internal quotation
omitted). Indefinite commitment to MSOP unquestionably constitutes a “significant
deprivation of liberty” that infringes upon one’s fundamental right to be free from
12
Regarding the conditions of their confinement, Plaintiffs allege that, in 1994,
“MSOP was operating in a hospital setting. Patients had individual rooms with their own
mattress, bed, dresser, desk, and storage. Private bathrooms were available and toilets
were not in the rooms. Patients were not locked in their rooms. . . .” (Second Am.
Compl. ¶ 140.) Plaintiffs contend, however, that conditions changed and that, presently:
[t]he MSOP facility at Moose Lake is laid out exactly like state prisons
with cell units facing into a central courtyard where Plaintiffs and Class
members may be observed from one central station. MSOP staff wears
police-style uniforms. The newly designed and constructed living unit,
Complex One, is designed just like a correctional facility.
(Id. ¶ 137.) Plaintiffs further allege that they “are double bunked in 9.5 x 15 ft. wet cells
consisting of two metal bed frames with springless mattresses that are only 30 inches
apart, small stainless steel desks, and a stainless steel toilet/sink combination unit fixed
into the cell.” (Id. ¶ 143.) Additionally, Plaintiffs describe that: “[c]ell doors are metal
and only have a small viewing window. The two windows in each cell are only five
inches wide. The only privacy when using the toilet is a movable screen.” (Id. ¶ 144.)
Plaintiffs claim that they “are locked in [their] cells every day from at least 9:45 p.m.
until 6:25 a.m.” (Id. ¶ 145.)
13
confinement. See Jones v. United States, 463 U.S. 354, 361 (1983) (“[C]ommitment for
any purpose constitutes a significant deprivation of liberty that requires due process
protection.”); see also Cooper v. Oklahoma, 517 U.S. 348, 368-69 (1996) (“The
requirement that the grounds for civil commitment be shown by clear and convincing
evidence protects the individual’s fundamental interest in liberty.”). Where the
government acts in a systematic way (for example through combined legislative and
executive action) to indefinitely confine a class of citizens in detention facilities—such as
those of MSOP—the government action must be narrowly tailored to serve a compelling
state interest in order to pass constitutional muster. 13 See Gallagher v. City of Clayton,
699 F.3d 1013, 1017 (8th Cir. 2012) (noting that, where legislation infringes upon a
fundamental right, such legislation “must survive strict scrutiny—the law must be
13
Sacramento v. Lewis distinguishes between the substantive due process standard
applied to “abusive executive action” directed at an individual, such as the use of
excessive force, and the standard applied to legislation that systematically impinges on a
fundamental right. Compare Lewis, 523 U.S. at 847 n.8 (“[I]n a due process challenge to
executive action, the threshold question is whether the behavior of the governmental
officer is so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.”), with Washington v. Glucksberg, 521 U.S. 702, 721 (1997)
(“[T]he Fourteenth Amendment forbids the government to infringe fundamental liberty
interests at all, no matter what process is provided, unless the infringement is narrowly
tailored to serve a compelling state interest.”) (internal quotation omitted) (emphasis in
original).
In this case, there may be particular actions of the executive (such as the
administration of treatment) that may ultimately be analyzed under the “shocks the
conscience” standard. See infra Part I.B.2 (Failure to Provide Treatment Claims).
Whether the strict scrutiny or the “shocks the conscience” standard applies to a particular
claim, however, an allegation of the denial of substantive due process “is to be tested by
an appraisal of the totality of facts in a given case.” Lewis, 523 U.S. at 850; see also id.
(“[O]ur concern with preserving the constitutional proportions of substantive due process
demands an exact analysis of circumstances before any abuse of power is condemned as
conscience shocking.”).
14
‘narrowly tailored to serve a compelling state interest’”) (quoting Reno v. Flores, 507 U.S.
292, 302 (1993)). The Court acknowledges that it will thus be required to carefully
analyze the purpose and effect of Minnesota’s civil commitment scheme for sex
offenders in this case.
The Supreme Court has made clear that civil commitment of individuals “who, by
reason of a mental disease or mental abnormality, constitute a real, continuing, and
serious danger to society,” is permitted, “provided there is no object or purpose to
punish.” Kansas v. Hendricks, 521 U.S. 346, 372 (1997) (Kennedy, J., concurring)
(citing Addington v. Texas, 441 U.S. 418, 426-27 (1979)); see also Hendricks, 521 U.S.
at 373 (Kennedy, J., concurring) (“We should bear in mind that while incapacitation is a
goal common to both the criminal and civil systems of confinement, retribution and
general deterrence are reserved for the criminal system alone.”). Where, notwithstanding
a “civil label,” a statutory scheme “is so punitive either in purpose or effect as to negate
the State’s intention to deem it ‘civil,’” a court will reject a legislature’s “manifest intent”
to create a civil proceeding and “will consider the statute to have established criminal
proceedings for constitutional purposes.” Hendricks, 521 U.S. at 361; see also Seling v.
Young, 531 U.S. 250, 261 (2001) (“A court will reject the legislature’s manifest intent
only where a party challenging the Act provides the clearest proof that the statutory
scheme is so punitive in either purpose or effect as to negate the State’s intention.”).
Therefore, a law whose objective is retribution or deterrence implicates criminal
punishment. See Hendricks, 521 U.S. at 361-62; see also Kansas v. Crane, 534 U.S. 407,
412 (2002) (distinguishing “a dangerous sexual offender subject to civil commitment
15
‘from other dangerous persons’” and finding such a distinction “necessary lest ‘civil
commitment’ become a ‘mechanism for retribution or general deterrence’—functions
properly those of criminal law, not civil commitment”) (citations omitted). Moreover,
“[i]f the object or purpose” of a civil commitment law is to provide treatment, “but the
treatment provisions were adopted as a sham or mere pretext,” such a scheme would
indicate “the forbidden purpose to punish.” Hendricks, 521 U.S. at 371 (Kennedy, J.,
concurring).
Furthermore, “[d]ue process requires that the nature of commitment bear some
reasonable relation to the purpose for which the individual is committed.” Foucha v.
Louisiana, 504 U.S. 71, 79 (1992); Jackson v. Indiana, 406 U.S. 715, 738 (1972). In
Minnesota, as provided by statute, individuals are committed to MSOP for the purpose of
treatment as SDPs and SPPs and have the right “to receive proper care and treatment, best
adapted, according to contemporary professional standards, to rendering further
supervision unnecessary.” Minn. Stat. § 253B.03, subd. 7; see also Minn. Stat.
§ 253D.02, subds. 15 & 16 (defining SPP and SDP). 14 Plaintiffs allege, however, that
they have been subjected to conditions of confinement that are punitive in nature and
antithetical to the purpose of their commitment.
With respect to the duration of a civil commitment, “the Constitution permits the
Government . . . to confine [an individual] to a mental institution until such time as he has
14
Defendants acknowledge their obligation under Minnesota law “to maintain a
therapeutic environment.” (Doc. No. 376 at 29 (quoting Minn. Stat. § 253D.19, subd. 1
(formerly Minn. Stat. § 253B.185, subd. 7(a))).)
16
regained his sanity or is no longer a danger to himself or society.” Jones, 463 U.S. at 370.
Thus, a civilly committed individual is entitled to release when he is no longer mentally
ill or dangerous. See Foucha, 504 U.S. at 77-78. 15 As a matter of due process, it is
“unconstitutional for a State to continue to confine a harmless, mentally ill person.” 16
Foucha, 504 U.S. at 77 (citing O’Connor v. Donaldson, 422 U.S. 563 (1975)). “Even if
the initial commitment was permissible,” a civil commitment may not “constitutionally
15
Discussing its previous holding in Jones, the Supreme Court stated in Foucha:
We held, however, that “(t)he committed acquittee is entitled to release
when he has recovered his sanity or is no longer dangerous,” id., at 368,
103 S. Ct., at 3052; i.e., the acquittee may be held as long as he is both
mentally ill and dangerous, but no longer. We relied on O’Connor v.
Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L.Ed.2d 396 (1975), which
held as a matter of due process that it was unconstitutional for a State to
continue to confine a harmless, mentally ill person. Even if the initial
commitment was permissible, “it could not constitutionally continue after
that basis no longer existed.” Id., at 575, 95 S. Ct., at 2493. In the
summary of our holdings in our opinion we stated that “the Constitution
permits the Government, on the basis of the insanity judgment, to confine
him to a mental institution until such time as he has regained his sanity or is
no longer a danger to himself or society.” Jones, 463 U.S., at 368, 370, 103
S. Ct., at 3052, 3053. The court below was in error in characterizing the
above language from Jones as merely an interpretation of the pertinent
statutory law in the District of Columbia and as having no constitutional
significance. In this case, Louisiana does not contend that Foucha was
mentally ill at the time of the trial court’s hearing. Thus, the basis for
holding Foucha in a psychiatric facility as an insanity acquittee has
disappeared, and the State is no longer entitled to hold him on that basis.
O’Connor, supra, 422 U.S., at 574-575, 95 S. Ct., at 2493-2494.
Foucha, 504 U.S. at 77-78 (footnote omitted).
16
The Court notes that the term “harmless” may have little to no practical
significance to treatment professionals tasked with evaluating whether a sex offender “is
no longer a danger to himself or society.” See Foucha, 504 U.S. at 77 (explaining that a
“committed acquittee is entitled to release when he has recovered his sanity or is no
longer dangerous”).
17
continue after that basis no longer exist[s].” Foucha, 504 U.S. at 77 (citing O’Connor,
422 U.S. at 565). By that reasoning, an individual who no longer meets the criteria for
commitment should be entitled to release.
Defendants contend that Seling v. Young, 531 U.S. 250 (2001), defeats Plaintiffs’
claim that the civil commitment statutes are unconstitutional as applied because the
Supreme Court, in Seling, rejected an as-applied challenge to a civil commitment statute.
Unlike Seling, however, this case raises the question of the constitutionality of a state
civil commitment scheme as applied to the entire sex offender population, not just to one
individual. 17 Contra Seling, 531 U.S. at 264 (“The Court of Appeals recognized that the
Act is civil, and treated respondent’s claim as an individual, ‘as-applied’ challenge to the
Act.”). Additionally, Plaintiffs here have raised the question of whether the Minnesota
civil commitment statutes have the “forbidden purpose” of punishment, despite their
purported civil underpinnings. See Hendricks, 521 U.S. at 347, 368-69 (plurality
opinion); id. at 371 (Kennedy, J., concurring); see also Seling, 531 U.S. at 264-65
(leaving open the question of what would happen if the lower courts had concluded that
“[the committed individual’s] allegations, if substantiated, would be sufficient to refute
the Washington Supreme Court’s conclusion that the Act is civil, and to require the
release of all those confined under its authority.”). In Seling, the Supreme Court assumed
17
Plaintiffs in this case “challenge the constitutionality of the relevant statutes based
on a repeated course of conduct over years for an entire class of individuals, not just their
application to a single individual” as well as “the systemic failure of the legislative,
executive and judicial branches of the State to rectify the continued deficiencies with the
program and to protect the rights of Plaintiffs.” (Doc. No. 389 at 16.)
18
the statute in question was civil, and expressed no opinion as to how allegations that
conditions of confinement “are too restrictive, that the conditions are incompatible with
treatment, and that the system is designed to result in indefinite confinement . . . would
bear on a court determining in the first instance whether [a state’s] confinement scheme is
civil.” Seling, 531 U.S. at 262-63. Moreover, the Supreme Court’s holding in Seling was
limited to an as-applied 18 challenge to a civil commitment statute on double jeopardy and
ex post facto grounds. Id. at 263 (holding “that respondent cannot obtain release through
an ‘as-applied’ challenge to the Washington Act on double jeopardy and ex post facto
grounds” and finding an “as-applied” analysis to be “unworkable” in that context because
“[s]uch an analysis would never conclusively resolve whether a particular scheme is
punitive and would thereby prevent a final determination of the scheme’s validity under
the Double Jeopardy and Ex Post Facto Clauses”). 19
18
Justice Thomas, in his concurrence, questioned whether the claim at issue, wherein
a committed sex offender “essentially contend[ed] that the actual conditions of
confinement, notwithstanding the text of the statute, are punitive and incompatible with
the Act’s treatment purpose” constituted a veritable “as-applied” challenge. Seling, 531
U.S. at 271 (Thomas, J., concurring). Justice Thomas further stated:
The majority adopts the Ninth Circuit’s nomenclature and refers to
respondent’s claim as an “as-applied” challenge, but that label is at best
misleading. Typically an “as-applied” challenge is a claim that a statute,
“by its own terms, infringes constitutional freedoms in the circumstances of
a particular case.” In contrast, respondent’s claim is not that [the Act] “by
its own terms” is unconstitutional as applied to him, but rather that the
statute is not being applied according to its terms at all.
Id. (citations omitted) (emphasis in original); see id. at 264 (majority opinion).
19
The Court acknowledged, however, that:
The particular features of confinement may affect how a confinement
scheme is evaluated to determine whether it is civil rather than punitive, but
(Footnote Continued on Next Page)
19
At the center of Plaintiffs’ challenge to the Minnesota sex offender commitment
scheme is the allegation that a commitment to MSOP essentially amounts to lifelong
confinement, equivalent to a lifetime of criminal incarceration in a facility resembling,
and run like, a medium to high security prison. Under such conditions, and assuming the
allegations in the Complaint to be true, it appears that MSOP may very well be serving
the constitutionally impermissible purposes of retribution and deterrence. Documents
such as the OLA Report, combined with the Governor’s directive that no class members
be released, as well as Defendants’ admission that no one has been fully discharged since
the program’s inception, lend substantial support to Plaintiffs’ Complaint.
If, with the benefit of discovery (including reports by the Court-appointed
experts), Plaintiffs are able to demonstrate that the commitment statutes are
systematically applied in such a way as to indefinitely commit individual class members
who are no longer dangerous, or that MSOP is administered as a punitive system despite
its statutory treatment purpose, Plaintiffs will likely prove up their claims. The Court
thus concludes, as did Magistrate Judge Jeffrey J. Keyes in Thompson, that if Plaintiffs
“can show that, contrary to the purpose of the SDP/SPP commitment law, the nature of
[their] commitment is punitive incarceration without any meaningful opportunity for
(Footnote Continued From Previous Page)
it remains no less true that the query must be answered definitively. The
civil nature of a confinement scheme cannot be altered based merely on
vagaries in the implementation of the authorizing statute.
Seling, 531 U.S. at 263.
20
release, then [they have] a plausible claim that [their] fundamental liberty interest
protected by the Fourteenth Amendment has been violated by arbitrary government
action.” Thompson R&R at 59.
Plaintiffs have plainly asserted, and sufficiently pled, viable claims regarding the
punitive nature of their confinement. Therefore, the Court denies Defendants’ motion
insofar as it seeks dismissal of Counts III, IV, V, and IX. To be clear, should Plaintiffs
prove up their claims, the statutes, as applied and implemented, are not likely to survive
constitutional scrutiny.
2.
Failure to Provide Treatment Claims
Counts I, II, and XI of Plaintiffs’ Second Amended Complaint assert various
claims related to the right to treatment. 20
20
Plaintiffs’ Complaint contains the following allegations, among others, with
respect to treatment:
The MSOP treatment program is broken out into three phases. In
Phase I, patients must learn how to comply with the MSOP facility’s rules
and learn basic treatment concepts. No sex offender-specific treatment
whatsoever is provided in Phase I. In Phase II, patients must discuss and
work through their sexual offenses and patterns of sexual abuse. In Phase
III, which takes place at the St. Peter facility, the program focuses on
community reintegration. This third phase consists of MSOP Supervised
Integration, in which patients live in a secure area within the St. Peter
Facility. Patients may take accompanied outings off campus, and
Community Preparation Services, in which patients live on campus in a
house that is not within the secure perimeter. Throughout Phase III,
patients are electronically monitored. . . .
The MSOP treatment program was designed to be completed within
four years. As of January 1, 2012, 64% of MSOP patients were in Phase I,
24% were in Phase II, and 12% were in Phase III. As no sex offenderspecific treatment is provided for Phase I patients, the majority of MSOP
patients are not provided any sex offender specific treatment at all.
(Footnote Continued on Next Page)
21
Count I, in essence, alleges that Defendants have violated Plaintiffs’ Fourteenth
Amendment substantive due process right to treatment. In particular, Plaintiffs claim that
“[b]ased on the policy and procedures created and implemented by Defendants,”
Plaintiffs “spend no more than six or seven hours per week in treatment, their treatment
plans are not detailed and individualized, the treatment staff is not qualified to treat sex
offenders, and staffing levels are often far too low.” 21 (Second Am. Compl. ¶ 214.)
(Footnote Continued From Previous Page)
Additionally, 75% of MSOP patients have been civilly committed to the
MSOP for between three years and ten years or more. It was not until
February of 2012 that the first patient in the history of the MSOP was
deemed to have completed the treatment program, after commitment to the
program for more than 18 years, and be ready for provisional discharge.
That patient is required to attend regular therapy as a provision of his
discharge. . . .
The Legislative Auditor Report found that one factor that may
explain why there has never been a discharge from the program is that
“problems in the treatment program over the last ten years have likely
affected the progress of some sex offenders.” Legislative Auditor Report at
xxi. . . .
The Legislative Auditor Report also found that patients get stuck in
Phase I of the program, which focuses on following rules and learning how
to participate in treatment groups rather than addressing the patient’s sexual
offenses or how to prevent re-offending. This may be because the MSOP
does not promote “positive treatment participation.” Legislative Auditor
Report at 64.
(Second. Am. Compl. ¶¶ 75, 78, 84-85.)
21
The OLA Report noted that “[t]he amount of treatment delivered at MSOP
facilities is lower than at any other adult inpatient sex offender treatment program in the
state.” (OLA Report at 62.) Specifically, the OLA Report stated that the “six hours of
group therapy per week” plus between one-and-a-half and two hours of “additional
psychoeducational modules” provided at MSOP is less than the treatment provided at
both the Department of Corrections Sex Offender Treatment Program and Alpha Human
(Footnote Continued on Next Page)
22
Rather than progressing through the phases of treatment, Plaintiffs allegedly remain “in
the first two phases of treatment for years.” (Id.) In sum, Plaintiffs appear to allege that,
as implemented, MSOP’s sequential, three-phased treatment system, with
chutes-and-ladders type mechanisms for returning patients to earlier phases of the
program, without periodic, independent review of their progress, has the effect of
confinement to the facility for life, equivalent to permanent, criminal incarceration.
Defendants maintain that the proper legal standard to apply to Plaintiffs’
inadequate treatment claim is whether “Defendants’ treatment program is so arbitrary or
egregious as to shock the conscience.” (Doc. No. 376 at 22); see Strutton v. Meade, 668
F.3d 549, 557-58 (8th Cir. 2012). It is true that the Eighth Circuit concluded in Strutton
that the plaintiff “[did] not have a fundamental due process right to sex offender
treatment” and that, accordingly, the Youngberg “professional judgment” standard 22 did
not apply to his treatment-related claims. Strutton, 668 F.3d at 557. The Strutton court
rejected the rule in some circuits that due process requires that civilly committed
(Footnote Continued From Previous Page)
Services, which provide treatment averaging twelve hours per week and twenty-one
hours per week, respectively. (Id. at 62-63.) In Kansas v. Hendricks, the State
represented to the Supreme Court that individuals committed under the Act at issue in
that case were “receiving in the neighborhood of ‘31- 1/2 hours of treatment per week.’”
Hendricks, 521 U.S. at 368.
22
In Youngberg, the Supreme Court held that under the Fourteenth Amendment,
“civilly committed individuals ‘enjoy constitutionally protected interests in conditions of
reasonable care and safety, reasonably nonrestrictive confinement conditions, and such
training as may be required by these interests.’” Strutton, 668 F.3d at 557 (quoting
Youngberg v. Romeo, 457 U.S. 307, 324 (1982)).
23
individuals be provided “with access to mental health treatment that gives them a realistic
opportunity to be cured and released,” 23 and instead noted 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. (internal quotation omitted). In Strutton, however, the plaintiff’s
claims 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. See id. at 558 (determining that “the temporary modifications in the
treatment regimen of eliminating psychoeducational classes and increasing the size of
process groups was neither arbitrary nor egregious”).
Prior to Strutton, the Eighth Circuit applied the Youngberg professional judgment
standard to a sex offender’s right to treatment claims. See Bailey v. Gardebring, 940
F.2d 1150, 1153-54 (8th Cir. 1991). In Bailey, the Eighth Circuit determined that the
plaintiff could succeed on his claim only if he could “show that the ‘presumptively valid’
decision of the hospital psychiatrists not to provide the sort of treatment” sought by the
23
See, e.g., Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir. 2000) (holding that “the
Fourteenth Amendment Due Process Clause requires states to provide civilly-committed
persons with access to mental health treatment that gives them a realistic opportunity to
be cured and released”) (citing Ohlinger v. Watson, 652 F.2d 775, 778 (9th Cir. 1980)).
While allegations pertaining to Plaintiffs’ constitutional and statutory rights to
treatment pervade the Complaint, the Court in no way implies that constitutionally
adequate treatment requires that an individual actually be “cured” of his “mental disease
or mental abnormality” or other psychological condition. But see Foucha, 504 U.S. at 77
(requiring release when a committed individual “has recovered his sanity or is no longer
dangerous”).
24
plaintiff was “‘such a substantial departure from accepted professional judgment, practice,
or standards as to demonstrate that the person responsible actually did not base the
decision on such a judgment.’” Id. at 1154 n.4 (quoting Youngberg, 457 U.S. at 323).
Ultimately, the Eighth Circuit affirmed the district court’s finding that there was
“insufficient evidence for a reasonable factfinder to conclude that the DHS defendants’
decisions were a substantial departure from accepted professional practice.” Bailey, 940
F.2d at 1154 n.4 (internal quotation omitted).
While the Court need not decide the applicable standard for Plaintiffs’ right to
treatment claims (or whether a fundamental right is implicated here) at this juncture, the
Court concludes that, regardless of the applicable standard, at this early stage of the
proceedings, Plaintiffs have, at a minimum, alleged sufficient facts to survive a motion to
dismiss. See, e.g., United States v. Salerno, 481 U.S. 739, 746 (1987) (“So-called
‘substantive due process’ prevents the government from engaging in conduct that ‘shocks
the conscience,’ . . . or interferes with rights ‘implicit in the concept of ordered liberty.’”)
(quoting Rochin v. California, 342 U.S. 165, 172 (1952) and Palko v. Connecticut, 302
U.S. 319, 325-26 (1937)). Even assuming, without deciding, that the Strutton “shocks
the conscience” standard applies to Plaintiffs’ right to treatment claims, when taken
together with the allegations regarding the punitive nature of confinement and the lack of
meaningful opportunity for release, Plaintiffs have, at a minimum, raised a serious
question as to whether state action with respect to the class members committed to MSOP
is “truly egregious and extraordinary.” See Strutton, 668 F.3d at 557.
25
Indeed, when taken together, and if proven true, a fact-finder may very well
conclude that the conditions of Plaintiffs’ confinement, including the deficiencies in
treatment, rise to the level of “shocking the conscience.” See Moran v. Clarke, 296 F.3d
638, 643 (8th Cir. 2002) (“Whether a substantive due process right exists is a question of
law. . . . However, subject to certain presumptions, whether the plaintiff has presented
sufficient evidence to support a claimed violation of a substantive due process right is a
question for the fact-finder, here the jury.”). As such, at this early stage, the Court finds
that Count I states a valid due process claim for failure to provide treatment.
To the extent Plaintiffs assert that any inadequate treatment or failure to treat
amounts to a violation of Minnesota statute or court order in Counts II and XI, Plaintiffs’
claims also survive dismissal for similar reasons.
Count II alleges a state law violation of the right to treatment. Specifically,
Plaintiffs contend that Defendants have unreasonably failed to provide the class members
with “proper care and treatment, best adapted, according to contemporary professional
standards, to rendering future supervision unnecessary” in contravention of the
Minnesota Commitment and Treatment Act. (Second Am. Compl. ¶ 222 (quoting Minn.
Stat. § 253B.03, subd. 7).) 24
24
Count II of the Complaint further states:
The Minnesota Civil Commitment and Treatment Act requires civilly
committed sex offenders to be committed to a secure treatment facility.
The statute promises that patients will receive individualized written
program plans to be reviewed quarterly, periodic medical treatment and the
right to receive proper care and treatment, best adapted, according to
(Footnote Continued on Next Page)
26
The Minnesota Commitment and Treatment Act guarantees civilly committed
individuals a right to treatment consistent with contemporary professional standards. See
Minn. Stat. § 253B.03, subd. 7 (“A person receiving services under this chapter has the
right to receive proper care and treatment, best adapted, according to contemporary
professional standards, to rendering further supervision unnecessary.”). Plaintiffs have
undoubtedly raised a question of whether the treatment provided to them at MSOP
satisfies the standard mandated by statute. 25
Similarly, Count XI asserts that Plaintiffs “are not receiving adequate treatment,”
contrary to the judicial determination that, as SPPs or SDPs, they “must enter a secure
treatment facility” for the purpose of receiving “proper sex offender treatment.” (See
Second Am. Compl. ¶¶ 300-01.)
While Count I is framed as a substantive due process claim, Counts II and XI
expand upon Plaintiffs’ underlying right to treatment claim. Plaintiffs support all three
claims with the same fundamental factual allegations. With respect to those counts, the
Complaint essentially alleges a pervasive denial of proper treatment at MSOP—that what
(Footnote Continued From Previous Page)
contemporary professional standards, to rendering further supervision
unnecessary. See Minn. Stat. §§ 253B.185, 253B.03, subd. 7.
(Second Am. Compl. ¶ 220 (citation formatting added).)
25
The Court notes that the right to treatment claim in Strutton invoked a slightly
different statutory mandate. See Strutton, 668 F.3d at 557 (“Strutton’s due process claim
originates from the state statutory mandate to provide for Strutton’s confinement ‘for
control, care and treatment until such time as [his] mental abnormality has so changed
that [he] is safe to be at large.’”) (quoting Mo. Rev. Stat. § 632.495(2)).
27
purports to be “treatment” by Defendants is, for all intents and purposes, a sham.
Plaintiffs allege that such a systemic failure is not only inconsistent with due process, but
is also contrary to statutory standards (and corresponding judicial orders) governing civil
commitment. Noting the concerns raised by the OLA Report, as well as the MPET
Report and the Task Force recommendations, and taking the allegations in the Complaint
as true for purposes of the motion to dismiss, at a minimum, Plaintiffs have stated
plausible claims pertaining to inadequate treatment. As such, Counts I, II, and XI survive
dismissal, and the class members must be provided the opportunity to offer evidentiary
support for those claims.
3.
Equal Protection Claim
In Count X, Plaintiffs assert that the sex offender commitment statutes, as applied,
violate the Equal Protection Clause of the Fourteenth Amendment. (Second Am. Compl.
¶¶ 292-98.) Specifically, Plaintiffs claim that “significant geographic variations in
petition and commitment rates across the state” demonstrate that similarly situated
individuals are treated differently, without a rational basis for such disparate treatment.
(See id. ¶¶ 296-97; see also OLA Report at xi (“Among Minnesota’s judicial districts,
commitment rates vary significantly, with the percentage of referred offenders being
committed varying from 34 to 67 percent.”).)
To state an actionable equal protection claim, Plaintiffs must allege facts to show
that they have been treated differently from similarly situated individuals. See Bogren v.
Minnesota, 236 F.3d 399, 408 (8th Cir. 2000); Klinger v. Dep’t of Corr., 31 F.3d 727,
731 (8th Cir. 1994) (stating that to sustain an equal protection claim, a plaintiff must
28
show that he belongs to a group that had been treated less favorably than others who are
“similarly situated”); see also Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 815 (8th
Cir. 2008) (“In order to establish such an equal protection claim, a prisoner must show
that he is treated differently from similarly-situated inmates and that the different
treatment is based upon either a suspect classification or a ‘fundamental right.’”);
Beaulieu v. Ludeman, Civ. No. 07-1535, 2008 WL 2498241, at *12 (D. Minn. June 18,
2008) (“Absent a threshold showing that plaintiffs are similarly situated to those who
allegedly receive favorable treatment, plaintiffs do not have a viable equal protection
claim.”).
If the parties are similarly situated, and the alleged action infringes a fundamental
right, strict scrutiny applies. See, e.g., Gavin v. Branstad, 122 F.3d 1081, 1089 (8th
Cir. 1997) (“Legislation that employs a suspect classification or impinges on a
fundamental constitutional right merits stricter scrutiny and will survive only if it is
narrowly tailored to serve a compelling governmental interest.”). But see, e.g., Devoil-El
v. Groose, 160 F.3d 1184, 1187 (8th Cir. 1998) (noting that when a suspect classification
(such as race) is implicated, “disparate impact alone, without the showing of intent to
discriminate, will not trigger the strictest level of scrutiny”). If the alleged action does
not impinge on a fundamental right or employ a suspect classification, rational basis
review applies. See, e.g., Gavin, 122 F.3d at 1090 (“Because neither a fundamental right
nor a suspect classification is at issue here, we apply rational basis review and accord the
immediate termination provisions ‘a strong presumption of validity.’”).
29
Here, Plaintiffs claim to have suffered an injury “because they have been
committed while others with similar offenses and similar records have not, without any
rational basis for this disparity.” (Doc. No. 389 at 37.) Defendants, meanwhile, contend
that Plaintiffs do not have standing to assert their equal protection claim. 26 (Doc. No. 376
at 32.) Defendants further allege that Plaintiffs have “failed to show that their own
commitment was different from others who are similarly situated” and thus have not
stated a viable equal protection claim. 27 (Id. at 34.) In addition, Defendants maintain that
they are not responsible for initiating commitment proceedings at the outset and,
therefore, are not the proper parties for Plaintiffs’ equal protection claim. (Id. at 33
(“Even if Plaintiffs did have standing, Plaintiffs have not sued the proper parties on this
claim because the Defendants have no authority or control over initial civil
commitment.”).)
26
With respect to standing, Defendants allege:
In this case, Plaintiffs, who are currently civilly committed, have not
alleged a causal connection between differing rates of civil commitment in
various counties and any injury they have actually incurred and how a
favorable decision would correct that injury. Because Plaintiffs and Class
Members are currently civilly committed to MSOP, they are not and will
not be subject to a petition for civil commitment, and any redress
concerning upfront civil commitment rates would have no impact on their
current status.
Thus, this claim should be dismissed for lack of standing.
(Doc. No. 376 at 33.)
27
Defendants also submit that even if Plaintiffs satisfied the “similarly situated”
requirement, “Minnesota’s civil commitment statute sets the same standards applicable
state-wide for civil commitment of a proposed [SPP] or [SDP].” (Doc. No. 376 at 34.)
30
Plaintiffs’ equal protection claim appears to challenge the initial decision to pursue
civil commitment—typically made by the appropriate county attorney’s office, which
files the petition for civil commitment in state district court—of each of the class
members, as compared to the decision not to pursue commitment of other individuals.
Plaintiffs do not allege, however, that the named Defendants 28 were in any way
responsible for their commitment to MSOP at the outset. The Court therefore agrees that
Plaintiffs have not asserted a viable claim against the named Defendants in this action. 29
As such, Count X of Plaintiffs’ Complaint is properly dismissed.
4.
First Amendment Claims
In Counts VI and VII, respectively, Plaintiffs assert that Defendants have denied
Plaintiffs their right to religious freedom and have unreasonably restricted Plaintiffs’
freedoms of speech and association in violation of the First Amendment.
Defendants maintain that Plaintiffs’ First Amendment claims are governed by the
guidelines set forth in Turner v. Safley, 482 U.S. 78 (1987). (See Doc. No. 376 at 6-7);
see also Turner, 482 U.S. at 89 (“[W]hen a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests.”). Plaintiffs dispute the applicability of Turner (which applies to
claims asserted by prisoners), and argue for the modification of that standard as follows:
28
Each of the named Defendants is currently, or was previously, employed by DHS;
Plaintiffs thus allege that each Defendant is responsible for various aspects of the
operation of MSOP. (See Second Am. Compl. ¶¶ 29-37.)
29
The Court makes no determination, however, as to whether such a claim would be
viable against any another party.
31
that any First Amendment restrictions on civilly committed individuals “must be
reasonably related to ‘legitimate therapeutic or institutional interests.’” (Doc. No. 389
at 29 (quoting Ivey v. Mooney, Civ. No. 05-2666, 2008 WL 4527792, at *10 (D. Minn.
Sept. 30, 2008)).) While the Court need not conclusively resolve the issue of the precise,
applicable standard today, the Court considers each of Plaintiffs’ First Amendment
claims in light of appropriate therapeutic interests as well as relevant safety and security
concerns. Ivey, 2008 WL 4527792, at *4-5 (applying “a version of the Turner test,
moderated to account for the principles stated in Senty-Haugen” in order to determine
whether an MSOP policy “is reasonably related to legitimate institutional and therapeutic
interests”); see Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006)
(acknowledging that the liberty interests of individuals committed to state custody as
dangerous persons “are considerably less than those held by members of free society,”
but that such individuals are “entitled to more considerate treatment and conditions of
confinement” than prison inmates) (internal citations omitted); Revels v. Vincenz, 382
F.3d 870, 874 (8th Cir. 2004) (“Although an involuntarily committed patient of a state
hospital is not a prisoner per se, his confinement is subject to the same safety and security
concerns as that of a prisoner.”); Serna v. Goodno, 567 F.3d 944, 953 (8th Cir. 2009),
cert. denied, 558 U.S. 972 (2009) (finding that “governmental interests in running a state
mental hospital are similar in material aspects to that of running a prison” because
“[a]dministrators have a vital interest in ensuring the safety of their staff, other patients,
and of course in ensuring the patients’ own safety” and concluding, therefore, that “the
government may take steps to maintain security at its institutions where sexually violent
32
persons are confined”). But see Beaulieu v. Ludeman, 690 F.3d 1017, 1039 (8th
Cir. 2012) (applying the four-factor Turner test to a First Amendment claim asserted by
civilly committed sex offenders where the parties agreed to its application). 30
Count VI asserts a claim for denial of the right to religion and religious freedom.
(Second Am. Compl. ¶¶ 255-63.) In particular, Plaintiffs allege that MSOP’s policies,
procedures, and practices cause Plaintiffs to be monitored during religious services and
during private meetings with clergy, do not permit Plaintiffs “to wear religious apparel or
possess certain religious property,” and do not allow Plaintiffs to “communally celebrate
their religious beliefs by having feasts.” (Id. ¶ 259.) Plaintiffs further claim that
Defendants do not provide the class members with Kosher or Halal meals. (Id. ¶ 197.)
Plaintiffs contend that such policies and practices “are not related to a legitimate
institutional or therapeutic interest” and thus constitute unreasonable restrictions on
Plaintiffs’ First Amendment rights. (Id. ¶¶ 260-61.)
In order to succeed on a claim asserted under the Free Exercise Clause of the First
Amendment, Plaintiffs must ultimately establish that the challenged regulations place a
“substantial burden” on Plaintiffs’ ability to practice their religions. See Patel, 515 F.3d
30
The Turner factors include:
(1) whether there is a valid, rational connection between the regulation and
legitimate governmental interests put forward to justify it; (2) whether
alternative means of exercising their rights remain open to the prisoners;
(3) whether accommodation of the asserted rights will trigger a “ripple
effect” on fellow inmates and prison officials; and (4) whether a ready
alternative to the regulation would fully accommodate the prisoners’ rights
at de minimis cost to the valid penological interest.
Beaulieu, 690 F.3d at 1039 (quoting Benzel v. Grammer, 869 F.2d 1105, 1108 (8th
Cir. 1989)).
33
at 813; 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
substantially burden one’s free exercise of religion, a regulation must: (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
(quoting Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988 (8th Cir. 2004)).
Defendants maintain that Plaintiffs have failed to plead an actionable freedom of
religion claim because Plaintiffs have not identified specific instances in which any class
member’s “sincerely held religious belief was infringed by an arbitrary denial of a
requested religious meal.” (Doc. No. 376 at 11-12.) At this early stage of the
proceedings, however, and when taken together with the other allegations regarding the
conditions of Plaintiffs’ confinement, the Court concludes that Plaintiffs have raised a
plausible free exercise claim, regardless of whether the Turner standard or a modified
Turner standard applies. See Thompson R&R at 85-86 (“Because Plaintiff has put
Defendants on notice of a plausible Free Exercise Clause claim, Defendant’s motion to
dismiss in this respect should be denied and Plaintiff’s claims based on a First
Amendment violation of his rights to freedom of religion . . . should remain.”).
Count VII asserts that Defendants have unreasonably restricted Plaintiffs’ rights to
free speech and free association. (Second Am. Compl. ¶¶ 264-72.) As with their
34
freedom of religion claim, Plaintiffs maintain that such restrictions “are not related to a
legitimate institutional or therapeutic interest.” (Id. ¶ 269.)
With respect to free speech, Plaintiffs allege that Defendants have limited
Plaintiffs’ phone use, have limited Plaintiffs’ access to certain newspapers and magazines,
and have removed or censored articles from newspapers and magazines. (Id. ¶¶ 267-68.)
The right of freedom of speech “includes not only the right to utter or to print, but the
right to distribute, the right to receive, the right to read” as well as “freedom of inquiry”
and “freedom of thought.” Griswold v. Connecticut, 381 U.S. 479, 482 (1965). Still,
“[a]ny form of involuntary confinement, whether incarceration or involuntary
commitment, may necessitate restrictions on the right to free speech.” Beaulieu, 690
F.3d at 1039.
Insofar as Plaintiffs challenge Defendants’ phone use and censorship policies,
Plaintiffs have not identified the specific policies at issue; nor is the Court able to
ascertain, at this stage, whether such policies are “reasonably related to legitimate
institutional and therapeutic interests under the Turner factors,” modified, or otherwise.
See Thompson R&R at 77-78. Nevertheless, in light of the allegations in the Complaint,
Plaintiffs have raised a plausible claim that their First Amendment rights may be violated
by overly restrictive policies, including those governing communication and censorship.
See id. Accordingly, the Court denies Defendants’ motion insofar as it seeks to dismiss
Plaintiffs’ free speech claims.
35
Plaintiffs also allege that Defendants have restricted Plaintiffs’ freedom to
associate with one another by limiting contact among the class members. (Second. Am.
Compl. ¶ 266.)
While the Eighth Circuit has determined that the liberty interests of individuals
committed to state custody as dangerous persons “are considerably less than those held
by members of free society,” the Eighth Circuit has also acknowledged that such
individuals are “entitled to more considerate treatment and conditions of confinement”
than prison inmates. Senty-Haugen, 462 F.3d at 886 (internal citations omitted).
Although Plaintiffs’ rights to freely associate are not unlimited, Plaintiffs no doubt retain,
at a minimum, those First Amendment rights that are not inconsistent with legitimate
security concerns. See Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 125,
132 (1977) (noting that while “numerous associational rights are necessarily curtailed by
the realities of confinement,” even a prison inmate “retains those First Amendment rights
that are not inconsistent with his status as a prisoner or with the legitimate penological
objectives of the corrections system”). Equally, if not more important, however, are the
therapeutic objectives of Plaintiffs’ commitment to MSOP. See id. at 125. Thus, the
Court must consider challenges to MSOP restrictions that allegedly inhibit First
Amendment interests in light of the legitimate policies and goals of the commitment
system, to whose custody and care Plaintiffs have been committed. See id. (finding that
challenges to policies that inhibit prisoners’ First Amendment rights “must be analyzed in
terms of the legitimate policies and goals of the corrections system”); see also Minn.
Admin. R. 9515.3080, subp. 1 (“The license holder must develop and follow policies and
36
procedures for maintaining a secure and orderly environment that is safe for persons in
treatment and staff and supportive of the treatment program.”) (emphasis added). As
such, in evaluating MSOP’s policies, the Court must not only take into account safety
concerns, but must also consider whether such policies are “supportive of the treatment
program.” See Minn. Admin. R. 9515.3080, subp. 1; Thompson R&R at 80-82. Again,
considering Plaintiffs’ claims with respect to restrictions on their ability to freely
associate in light of all of Plaintiffs’ allegations regarding their conditions of confinement,
the Court finds that Plaintiffs have stated a valid claim. The Court therefore denies
Defendants’ motion to the extent it seeks dismissal of Plaintiffs’ freedom of association
claim.
Each of Plaintiffs’ First Amendment claims, as well as their other challenges to
MSOP policies, arise from the broader allegation that their confinement in the program
amounts to unconstitutional, criminal incarceration, despite the purported therapeutic
purpose of the facilities and the commitment statutes. In essence, Plaintiffs contend that
the conditions of their confinement, taken together, are inconsistent with a civil scheme,
and have rendered MSOP punitive in nature. Contra Seling, 531 U.S. at 266 (“This case
gives us no occasion to consider how the civil nature of a confinement scheme relates to
other constitutional challenges, such as due process, or to consider the extent to which a
court may look to actual conditions of confinement and implementation of the statute to
determine in the first instance whether a confinement scheme is civil in nature.”).
To determine whether MSOP’s policies violate Plaintiffs’ constitutional rights
requires a balancing of fundamental liberties against institutional and therapeutic interests
37
that, without the benefit of independent expert assessment (as discussed below), the Court
is not equipped to undertake at this early stage. At a minimum, however, Plaintiffs have
articulated a viable claim that Defendants’ policies unlawfully restrict their First
Amendment rights. As such, Counts VI and VII survive dismissal at this point in the
proceedings.
5.
Unreasonable Search and Seizure Claim
Count VIII of Plaintiffs’ Complaint asserts that Defendants have violated Plaintiffs’
Fourth Amendment rights “through their search policies, procedures, and practices.”
(Second Am. Compl. ¶ 275.) Plaintiffs challenge Defendants’ “random cell searches,”
“window checks,” “strip searches,” and “random pat downs.” (Id. ¶¶ 276-78.)
“Involuntarily 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 1017). 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 the balancing
test, a court must consider: (1) the scope of the particular intrusion; (2) the manner in
which the search is conducted; (3) the justification for initiating the search; and (4) the
place in which the search is conducted. Serna, 567 F.3d at 949 (quoting Bell, 441 U.S.
at 559). A court must defer to the judgment of the correctional (or institutional) officials
“unless the record contains substantial evidence showing their policies are an
38
unnecessary or unjustified response to problems of institutional security.” Arnzen, 713
F.3d at 373 (quoting Beaulieu, 690 F.3d at 1029).
In the past, the Eighth Circuit has upheld the use of strip searches for the purposes
of protecting the public, protecting transport teams, and preventing dangerous contraband
from entering MSOP. See Arnzen, 713 F.3d at 373 (citing Beaulieu, 690 F.3d
at 1027-30); see also Serna, 567 F.3d at 953. The Eighth Circuit, however, has also
recently considered “the availability of less intrusive techniques when assessing the
reasonableness of a challenged procedure,” especially when “personal privacy” interests
“and dignity” are at stake. Arnzen, 713 F.3d at 373, 375 (affirming district court’s
issuance of a preliminary injunction prohibiting staff from capturing images of civilly
committed sex offenders while they occupied single-person bathrooms); see also Serna,
567 F.3d at 955 (“[N]ot all search techniques may be swept under the rug of deference to
the detention-center decisionmakers[.]”). Importantly, here, Plaintiffs’ Fourth
Amendment claim must be evaluated within the context of Plaintiffs’ other allegations
regarding the unconstitutional, punitive nature of their confinement. To the extent
Plaintiffs challenge Defendants’ use of shackles and handcuffs, such allegations are
relevant to their claims regarding the punitive nature and conditions of confinement.
Contra Semler v. Ludeman, Civ. No. 09-732, 2010 WL 145275, at *20-22, *26-27
(D. Minn. Jan. 8, 2010) (finding that MSOP’s visual body search, room search, and
restraint policies were not unconstitutional on a motion to dismiss); Pyron v. Ludeman,
Civ. Nos. 10-3759 & 10-4236, 2011 WL 3293523, at *6 (D. Minn. June 6, 2011)
(dismissing a Fourth Amendment claim).
39
Defendants maintain that MSOP’s search policies are related to legitimate safety
and security concerns. (See Doc. No. 376 at 16-17.) A determination of the
reasonableness of such searches, however, requires that a court consider and evaluate the
unique characteristics of the search (or policy) in question. See Bell, 441 U.S. at 559
(“The test of reasonableness under the Fourth Amendment is not capable of precise
definition or mechanical application.”); see also Thompson R&R at 88 (noting that “the
Supreme Court in Bell instructs that the balancing that needs to be done to determine the
reasonableness of a search must be done on a case-by-case basis and requires at least
some evidentiary record”).
Considering Plaintiffs’ Fourth Amendment claim in conjunction with Plaintiffs’
other allegations surrounding the punitive nature of their confinement, the Court is unable
to determine at this time “if the alleged search policies and searches conducted in this
case are reasonable and appropriate.” Thompson R&R at 88-89. Contra Evenstad v.
Herberg, -- F. Supp. 2d --, Civ. No. 12-3179, 2014 WL 107718, at *5 (D. Minn. Jan. 10,
2014) (finding that “room searches are an ‘appropriate security measure’” and that it was
not unreasonable to require a civilly committed individual “to remain outside his room”
while it was searched). At this stage, the Court lacks specific details regarding the
challenged searches and the particular policies at issue. See Thompson R&R at 89
(“Facts relating to the scope of the searches, the manner in which they were conducted,
the justifications for the searches, and the places in which they were conducted are yet to
be developed.”). Taking the facts alleged in Plaintiffs’ Complaint together, and assuming
the allegations to be true for purposes of the instant motion, the Court concludes that
40
Plaintiffs have articulated a plausible Fourth Amendment claim. As such, the Court
denies Defendants’ motion insofar as it seeks dismissal of Count VIII.
6.
Contract-Related Claims
Counts XII and XIII assert claims of breach of contract, and tortious interference
with contract, respectively, against Defendants Jesson, Benson, Moser, Lundquist,
Johnston, and Hébert related to their alleged failure to provide adequate treatment. 31
Essentially, Plaintiffs argue that those Defendants “actively participated in and supported
the inadequate treatment policies as implemented by MSOP, which resulted in the failure
to comply with contract[s] to provide treatment by MSOP.” (Second Am. Compl. ¶¶ 311,
322.) 32 Plaintiffs base their claims on the “Consent for Participation in Sex Offender
Treatment” contract, which provides, among other things:
that the patient’s therapist has discussed the course of treatment at the
MSOP, that the patient received information about the levels of care and
stages of treatment, that the patient has received the goals and behavioral
expectations at the MSOP, that upon completion of treatment the MSOP
will support their petition for provisional discharge, that each stage of
treatment has specific goals and behavioral expectations, that services such
as education and vocation are provided . . . .
31
Count XIII also asserts that those Defendants intentionally violated Minn. Stat.
§ 253B.03, subd. 7. (Second Am. Compl. ¶ 322; see id. ¶ 319 (quoting Minn. Stat.
§ 253B.03, subd. 7 (“A person receiving services under this chapter has the right to
receive proper care and treatment, best adapted, according to contemporary professional
standards, to rendering further supervision unnecessary.”).)
32
Plaintiffs further claim that those Defendants were aware “of the failure to
progress Plaintiffs and [c]lass members through the different treatment phases to the
point that they could be conditionally or unconditionally released” and that “the MSOP
treatment program as implemented had only conditionally released a single person and
had never unconditionally released anyone committed to MSOP.” (Second Am. Compl.
¶¶ 310, 312, 321, 323.)
41
(Id. ¶ 318; see also Doc. No. 377, Figueroa Aff. ¶ 19, Exs. 18-31.)
For the same reasons discussed above with respect to Plaintiffs’ failure to provide
treatment claims, the Court concludes that Plaintiffs have stated plausible contract-based
claims at this stage of the proceedings. Consequently, the Court denies Defendants’
motion to dismiss with respect to Counts XII and XIII.
7.
Monetary Damages
Defendants argue that they are entitled to Eleventh Amendment immunity from
monetary damages against them in their official capacities. (Doc. No. 376 at 3.) It
appears from the Complaint, however, that Plaintiffs have limited their request for
monetary damages to Defendants in their individual capacities. (See Second Am. Compl.
¶¶ 12, 41.) Nevertheless, to the extent Plaintiffs may seek any such monetary damages
against Defendants in their official capacities, the Court agrees that monetary damages
are not recoverable. See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974) (“[A] suit by
private parties seeking to impose a liability which must be paid from public funds in the
state treasury is barred by the Eleventh Amendment.”); see also Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the official’s office.”).
Any claim for monetary damages against Defendants in their individual capacities,
however, remains. 33
33
Defendants also argue that Plaintiffs have failed to plead, with particularity, facts
to demonstrate the personal involvement of each of the named Defendants in the
(Footnote Continued on Next Page)
42
II.
Experts
On December 6, 2013, the Court appointed Dr. Naomi Freeman, Ms. Deb
McCulloch, Dr. Michael Miner, and Dr. Robin Wilson as experts pursuant to Rule 706 of
the Federal Rules of Evidence. (Doc. No. 393 at 1-2.) The Court delineated the duties of
the experts as follows:
• To advise the Court on professional standards of care and treatment of sex
offenders, both within and outside large facilities;
• To advise the Court on professional standards on conditions/rules
regarding confinement/security within large facilities, such as [MSOP];
• To advise the Court on experiences and programs among the states in this
field;
• To advise the Court on research on effectiveness of treatment, and on
recidivism, in both large facilities and appropriate less restrictive programs;
• To advise the Court regarding risk assessment and placement decisions
for sex offenders;
• To advise the Court [on] practices, rules, treatment, conditions, risk
assessments, and the like at [MSOP], and the professional adequacy of care,
treatment and confinement at the Program;
• To advise the Court on any matters the experts believe are pertinent to
understanding their findings and recommendations regarding the above
duties;
• To make recommendations to the Court regarding these matters, and to
respond to any further inquiries by the Court.
(Id. ¶ 9.)
(Footnote Continued From Previous Page)
constitutional violations alleged in the Complaint. (Doc. No. 376 at 4-5.) The Court
finds, however, that Plaintiffs have alleged sufficient facts to survive a motion to dismiss
at this stage of the proceedings.
43
The parties submitted their respective proposals with respect to the work of the
experts by letter. (Doc. No. 421.) Specifically, Plaintiffs propose that the experts focus
their work on the following areas:
1. Evaluation of all Class members and make recommendations as to
whether each Class member is in the correct treatment phase; whether the
Class member should be recommended for provisional or full discharge
and/or whether the Class member could be placed in a less restrictive
treatment setting;
2. Review of the current treatment program at MSOP and how it is being
implemented to determine whether the program on its face and as
implemented meets the professional standard of care and treatment of sex
offenders and make recommendations for any changes that should be made
to the treatment program;
3. Review the current MSOP policies and practices with regard to the
conditions of confinement to determine whether they satisfy the balance
between security and a therapeutic environment and make
recommendations for any changes that should be made to the conditions of
confinement at both the Moose Lake and St. Peter facility; and
4. Provide the Court with recommendations as to less restrictive
alternatives and how such facilities may operate.
(Id. at 3.) Plaintiffs further request that:
Consistent with the Court’s broad mandate, the experts should look to other
states that have civil commitment programs for sex offenders to provide
guidance on alternative options. The experts should also have liberal
access to the relevant people, policies, files, and assistance needed to satisfy
their duty to the Court including access to the following information:
• Review of Patient Files: The experts shall be afforded full access to all
patient files and related documentation to verify that the proper professional
standards of care and treatment are being applied to all areas of patient care,
including treatment, risk assessment, discipline, and client placement in the
MSOP. The experts shall be afforded the opportunity to meet with clients subject to client consent to such participation - to discuss client treatment
files and treatment status.
• Review of MSOP Policies: The experts shall be afforded full access to all
MSOP policy makers as well as all policies and related documentation to
verify that professional standards of care and treatment are being applied to
all areas of the MSOP, including client treatment and placement, conditions
44
of confinement, security, and any other matters the experts believe are
pertinent to the discharge of their duties under the Expert Order.
• Review of Conditions of Confinement: The experts shall be afforded full
access to review the current conditions of confinement and related policies
and rules regarding the same within the MSOP in order to advise the Court
on professional standards regarding the conditions of confinement that
establish a therapeutic environment that provides adequate security for
clients, staff, and visitors.
• Review of the Treatment Program: The experts shall be afforded full
access to review all aspects of the current treatment program provided by
the MSOP to verify that professional standards of care are being applied to
client treatment. The review shall encompass the physical and
psychological testing applied to clients, amount and format of treatment,
applicable standards for progression and discharge, and any other matters
the experts believe are pertinent to the discharge of their duties to the Court
under the Expert Order.
• Review of Less Restrictive Alternatives: The experts shall review the
current and proposed less restrictive alternative facilities and advise the
Court on the professional standards of care in such facilities as well as the
experiences of other states regarding the establishment and use of less
restrictive alternatives and client placement in those less restrictive
alternatives.
(Id. at 3-4 (emphasis in original).) Defendants, however, seek to limit the experts’ work
to preparing a report that addresses the following:
1. The current professional standards for the treatment of civilly committed
sex offenders and the extent to which MSOP’s program design reflects
those standards;
2. How other civil commitment programs have reintegrated civilly
committed sex offenders into the community, with particular attention to
community relations; and,
3. How other states, if any, are providing treatment and management of
lower-functioning civilly committed sex offenders in community settings.
(Id. at 4.) Defendants suggest that, following the issuance of the report, the Court may
consider additional proposals by the parties for further expert work. (Id.)
45
Following the Court’s meeting with the experts, the experts submitted their
proposal to the Court, which requests a number of documents for their review, and further
states, in relevant part:
Panel of Experts Plan:
•
Review documentation listed below
•
Once the panel is in receipt of documents, we will take a few weeks
to review and then schedule a conference call to determine time frames and
next steps
•
Complete site visits to St. Peters [sic] and Moose Lake
•
Interview patients and staff at each facility
•
Complete chart reviews based on random sample . . . .
Initial Scope of Panel Work:
•
The panel plans to review the MSOP treatment and screening
program/process, not the individuals (i.e., residents) in the program.
•
If while reviewing resident charts or interviewing residents the panel
identifies glaring issues with a resident not receiving appropriate services,
we will generally comment on that and make system recommendations to
address the discovered issues. The goal of looking at resident charts and
possibly interviewing residents, however, is [to] get an understanding of
what is happening in the program so that it may be evaluated, not to make
comments about an individual resident’s risk or treatment progress. . . .
Plan for Reviewing a Sample of Resident Charts:
•
The panel needs information from MSOP related to how residents
are separated within the program - by ward, by phase, by treatment tracks
and/or by specialized population (e.g., SPMI, psychopathy,
juveniles/juvenile only offenders, intellectual disability)
o Please provide a total number of residents in each of the above
groups
•
Based on the above groups, members of the panel will review a
proportion of resident charts. Although an exact number cannot be
determined until further information is provided, the panel will aim to
review 20% to 25% of resident charts. In smaller groups (e.g., the
psychopathy track, juvenile charts, elderly charts) the panel may review a
majority or all of the charts.
o Resident charts will be selected based on a stratified random sample
insuring that there are sufficient charts within each strata to make
meaningful conclusions and recommendations for important subgroups
46
(e.g., juveniles, elderly residents).
(Doc. No. 422 at 1, 3 (emphasis in original).)
The experts request a number of reference documents, including publicly available
reports and documents related to this lawsuit, as well as MSOP evaluation reports and
administrative directives and rules. (Id. at 1.) The experts also request copies of MSOP’s
policies and procedures, such as the following: organizational charts (“including job
descriptions and qualifications for clinical/treatment staff and supervisors”); a program
description (“including phase goals/treatment targets, treatment hours, treatment service
plans, etc.”); the patient/resident handbook; the treatment schedule (including “standard
resident schedule for each phase of treatment”); the grievance policy/process; the
behavioral management plans/policies; the admission process and policy; the referral for
release and release process; the staff-to-patient ratios and staffing numbers; the staff
training policies; the assessments used for the treatment process; templates for any forms
and assessments utilized in the treatment process; and a chart map (including a list of
documents that should be in each resident’s chart). (Id. at 1-2.)
The Court hereby orders that the experts shall have complete and unrestricted
access to the requested documents, as well as any other documents they may require for
their evaluations and assessments, insofar as such documents exist.
In addition, while the experts seek to conduct initial chart reviews to “get an
understanding of what is happening in the program so that it may be evaluated, not to
make comments about an individual resident’s risk or treatment progress,” the Court
finds that independent risk assessments and treatment recommendations for each of the
47
class members will ultimately be necessary in order for the Court to comprehensively
evaluate Plaintiffs’ claims, including whether the commitment statutes, as applied, and
whether MSOP, as implemented, pass constitutional muster. Still, the Court recognizes
that such a task is no small undertaking and will require a great deal of time and
resources. The Court therefore approves the experts’ plan “to review 20% to 25% of
resident charts” at the outset, with the qualification that a complete and independent
evaluation of each patient will ultimately be necessary.
The Court hereby directs the experts to address each of the issues identified in the
experts’ proposal, and the additional issues raised by the parties, as well as the following:
(a) each class member’s current level of dangerousness (current risk assessment),
including whether each class member poses a “real, continuing, and serious danger to
society”; (b) whether each class member is actually eligible for discharge under the
applicable statutory provisions or otherwise no longer meets the statutory criteria for
initial commitment; (c) whether each class member is placed in the proper treatment
phase; (d) whether each class member would be a candidate for a less restrictive facility;
and (e) the specific need and parameters for less restrictive alternative facilities.
With respect to less restrictive alternatives, in addition to developing proposals for
any new in-patient facilities and issuing recommendations as to individual class member
placement therein, the experts should also consider possible out-patient treatment options,
including counseling, therapy, and support groups, and shall identify any class members
who, in their professional judgment, are appropriate candidates for out-patient treatment.
48
The Court further directs that, when the experts commence their comprehensive
evaluations, they start their evaluations with those individuals residing in the Assisted
Living Unit, the Alternative Program Units, and the Young Adult Unit.
The Court notes that, on December 13, 2012, the Court approved James L.
Haaven, M.A., William D. Murphy, Ph.D., Robert J. McGrath, M.A., Jill D. Stinson,
Ph.D., and Christopher D. Kunkle, Psy.D., to serve as MPET members. (Doc. No. 281
at 2.) Part of the MPET’s task was to review a random sampling of client treatment
records, which it did. (Doc. No. 275; MPET Report.) As such, in performing their work,
including the comprehensive evaluations of each class member, the experts may call
upon the services of the above MPET members to help accomplish that task, or any other.
The experts may also consult with and call upon Roberta Opheim, Minnesota State
Ombudsman for Mental Health and Developmental Disabilities, in carrying out their
duties, and shall have unrestricted access to do so.
The Court notes that its consideration of Plaintiffs’ claims on the merits will
require extensive evaluation of MSOP and in-depth assessments of the class members by
the Court-appointed experts. The Court acknowledges, however, that such work on the
part of the experts will likely take a substantial amount of time and require significant
resources. As such, the experts may complete their review in a series of stages. As each
stage proceeds, the findings of the experts may require that the experts adjust their
evaluation approach in light of their findings. The Court therefore reserves the right to
amend, alter, or supplement its expert orders as necessary.
49
III.
Motion for Declaratory Judgment
Plaintiffs move for a declaratory judgment that the Minnesota statutes governing
civil commitment and treatment of sex offenders are “unconstitutional as written and as
applied.” (Doc. No. 362 at 1.) Specifically, Plaintiffs argue that the discharge standard
set forth by statute, and as applied by Defendants, has “made it all but impossible for any
individual to be released from civil commitment,” and has thus rendered commitment to
MSOP “in essence a life sentence,” in violation of due process. (Id. at 1-2.)
The Court has broad discretion to grant declaratory relief pursuant to the
Declaratory Judgment Act, 28 U.S.C. § 2201. The purpose of the Declaratory Judgment
Act is to provide a remedy that will “minimize the danger of avoidable loss and the
unnecessary accrual of damages.” Koch Eng’g Co. v. Monsanto Co., 621 F. Supp. 1204,
1206-07 (E.D. Mo. 1985) (quoting 10A C. Wright, A. Miller & M. Kane, Federal
Practice and Procedure § 2751 at 569 (1983)); see Lancaster v. N. States Power Co., Civ.
No. 11-619, 2011 WL 5444115, at *6 (D. Minn. Nov. 9, 2011); Riedell Shoes, Inc. v.
Adidas AG, Civ. No. 11-251, 2011 WL 1868180, at *5 (D. Minn. May 16, 2011). A
court may render a declaratory judgment “(1) when the judgment will serve a useful
purpose in clarifying and settling the legal relations in issue, and (2) when it will
terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to
the proceedings.” Alsager v. Dist. Ct. of Polk Cnty., Iowa (Juvenile Div.), 518 F.2d 1160,
1163-64 (8th Cir. 1975) (quoting E. Borchard, Declaratory Judgments, 299 (2d
ed. 1941)).
50
Plaintiffs’ due process challenge to the statutes is both facial 34 and as-applied.
With respect to their as-applied challenge, Plaintiffs claim that the application of the
statutory discharge standard to the class members is unconstitutional because, since the
inception of the program, no one has been fully released from MSOP. (Doc. No. 362
at 14 (“[T]he discharge standard under Minn. Stat. § 253D, as applied to the hundreds of
individuals committed under that statute, which since its inception has failed to require
the release of even one individual, demonstrates that the statute as applied is
unconstitutional.”).) With respect to their facial challenge, Plaintiffs contend that “the
discharge standard allows the State to continue civil commitment” of sex offenders, even
after the offenders “no longer meet[] the statutory criteria for commitment.” (Id. at 16.)
In further support of their facial challenge, Plaintiffs claim that “the commitment
statute does not provide for a periodic and independent review,” and the “lack of an
automatic independent review makes the discharge statute unconstitutional on its face
because, as written, the statute is not narrowly tailored to guarantee” that individuals are
only confined so long as they “continue[] to need further inpatient treatment and
supervision for [their] sexual disorder[s] and to pose a danger to the public.” (Doc.
No. 396 at 11, 12.) In this manner, Plaintiffs assert that “the statute on its face fails to
34
A “plaintiff can only succeed in a facial challenge by establishing that no set of
circumstances exists under which the Act would be valid, i.e., that the law is
unconstitutional in all of its applications.” Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 (2008) (internal quotation omitted).
51
bear a reasonable relationship to the original reason for commitment” and is thus
unconstitutional. (Id. at 12.)
While Plaintiffs take issue with the standard for release as written, 35 insofar as
“[t]he discharge standard does not mirror the requirements of the commitment standard”
(Doc. No. 362 at 4), Plaintiffs also challenge “the consistently ineffective application of
the entire program to all [c]lass members,” including the discharge criteria. 36 (Doc.
No. 396 at 5, 7.) Central to Plaintiffs’ as-applied constitutional challenge is the question
of each class member’s current level of dangerousness. The SPP and SDP statutes
require that, in order to be committed as a sex offender, an individual, among other
things, must be “dangerous to other persons” or “likely to engage in acts of harmful
35
The discharge statute states 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.
Minn. Stat. § 253D.31.
36
In other words, an individual may be initially committed to MSOP on proof of
satisfaction of the statutory SPP or SDP criteria (see Minn. Stat. §§ 253D.02, 253D.07),
but Minn. Stat. § 253D.31 prohibits discharge unless a patient satisfies a higher standard,
which requires that he demonstrate, among other things, that he “is capable of making an
acceptable adjustment to open society.” Minn. Stat. § 253D.31. Plaintiffs allege that this
one-way door has resulted in essentially lifelong commitment.
52
sexual conduct.” See Minn. Stat. § 253D.02, subd. 15 (formerly Minn. Stat. § 253B.02,
subd. 18b); Minn. Stat. § 253D.02, subd. 16 (formerly Minn. Stat. § 253B.02, subd. 18c).
Thus, inherent in Plaintiffs’ Complaint is the allegation that individuals who are no
longer dangerous continue to be confined at MSOP. 37 (See, e.g., Second Am. Compl.
¶ 213 (“Confinement that continues after the person no longer meets the statutory
requirements for commitment violates due process.”).)
Defendants acknowledge that MSOP includes eight “specialty units” for certain
individuals, including, among others, the “Alternative Program Units,” the “Young Adult
Unit,” and the “Assisted Living Unit.” (Doc. No. 380 at 12 (citing Hébert Aff.
¶¶ 85-86).) 38 According to Defendants, the Alternative Program Units house 112 patients
“with compromised executive functioning, cognitive impairments, or traumatic brain
injuries,” who “lack ability to succeed in the conventional programming.” (Doc. No. 380
at 12 (citing Hébert Aff. ¶ 86).) The Young Adult Unit houses twenty-four patients
between the ages of eighteen and twenty-five, “who require specialized treatment
programming due to emotional immaturity and vulnerability.” (Doc. No. 380 at 12-13
37
Plaintiffs’ briefs in support of their motion for declaratory judgment do not
explicitly raise arguments regarding each class member’s current level of
“dangerousness”; Plaintiffs are thus by no means limited to such challenges.
38
“About 41 percent of patients currently reside in one of the eight specialty units,
with the remaining 59 percent resid[ing] in general, non-specialty units.” (Doc. No. 380
at 12 (citing Hébert Aff. ¶ 85).)
53
(citing Hébert Aff. ¶ 86).) Meanwhile, eighteen patients reside in the Assisted Living
Unit. (Doc. No. 380 at 13 (citing Hébert Aff. ¶ 86).) 39
It defies reason that individuals who are comatose or otherwise completely
incapacitated would be considered so dangerous as to require continued confinement in a
secure, prison-like facility. Moreover, an individual who refuses to participate in
treatment, but is no longer dangerous, cannot constitutionally continue to be confined in
such a facility. See Foucha, 504 U.S. at 77 (noting that a committed individual “may be
held as long as he is both mentally ill and dangerous, but no longer” and that it is
“unconstitutional for a State to continue to confine a harmless, mentally ill person”). Due
process would dictate that, in order for the State to justify continued commitment, the
basis for commitment must continue to exist. See id. (“Even if the initial commitment
was permissible,” a civil commitment may not “constitutionally continue after that basis
no longer exist[s].”). At this stage of the proceedings, however, the record does not
contain any current assessments of dangerousness or other commitment criteria
particularized to any class member. Plaintiffs have not presented the Court with any
evidence with which the Court (or the appropriate experts) may evaluate each class
member’s current level of dangerousness. As such, the extent to which each class
member poses a “real, continuing, and serious danger to society” remains to be
39
Notably, the MPET Report found that “[t]he current criteria for phase progression
may need to be modified for certain populations of clients, including those persons with
intellectual or developmental disabilities, severe and persistent mental illness, and
significant cognitive impairment (e.g., dementia).” (MPET Report at 5.)
54
ascertained as this case proceeds. 40 See Hendricks, 521 U.S. at 372 (Kennedy, J.,
concurring).
While the Court acknowledges the obvious potential for an ongoing harm to
Plaintiffs, and notes that declaratory relief may ultimately be appropriate, a decision on
the issue of the constitutionality of the Minnesota statutes governing civil commitment
and treatment of sex offenders is premature at this juncture. While Plaintiffs’ allegations
have no doubt called into deep question Minnesota’s sex offender commitment scheme,
Plaintiffs have provided no factual or evidentiary support for the proposition that any
class member is actually eligible for discharge under the applicable statutory provisions
or otherwise no longer meets the statutory criteria for initial commitment. The experts
will address that issue, as articulated above, in their assessments of each of the class
members. At this early stage, and on the current record, however, the Court has no way
of evaluating Plaintiffs’ discharge-related claims. 41
40
It is unquestionable that commitment, at the outset, must be justified by law.
Similarly (as discussed above with regard to dangerousness), continued commitment
must also be justified. A statute that—as written, as applied, or as implemented—renders
discharge from a sex offender civil commitment program more onerous than admission to
it, such that individuals who no longer meet commitment criteria remain confined, raises
grave due process questions. In that regard, the Court expresses serious doubts as to the
constitutionality of Minnesota’s sex offender commitment statutes and their
implementation through MSOP.
41
Defendants claim that “MSOP provides a risk assessment to the SRB [Special
Review Board] when a patient petitions for discharge or provisional discharge” (Doc.
No. 382 at 4 (citing Doc. No. 386, Allen Aff. ¶ 5)), however, Defendants do not purport
to procure periodic, independent assessments or otherwise evaluate whether a patient
continues to meet the initial commitment criteria, even after potentially decades of
confinement in the program, unlike most other States (see OLA Report at xii, 89-91). But
(Footnote Continued on Next Page)
55
It is also deeply disturbing that only two individuals have been provisionally
released since the program’s inception (and not a single patient has been fully released
from the program). That fact alone, however, is insufficient to carry Plaintiffs’ burden on
their motion. See Fitz v. Dolyak, 712 F.2d 330, 333 (8th Cir. 1983) (“Since a
presumption of constitutionality attaches to state legislative enactments, a party seeking
to challenge a statute under this standard bears a heavy burden.”) (citations omitted).
Still, should the discovery process reveal that the application of the sex offender
commitment statutes to the class members has resulted in confinement that has been
rendered punitive—contrary to the statutory treatment purpose of commitment—the
Court will not hesitate to rule on Plaintiffs’ claims at the proper time. As such, the Court
denies the motion for declaratory judgment without prejudice.
(Footnote Continued From Previous Page)
see Minn. Stat. § 253B.03, subd. 5 (“A patient has the right to periodic medical
assessment, including assessment of the medical necessity of continuing care . . . . The
treatment facility shall assess the physical and mental condition of every patient as
frequently as necessary, but not less often than annually.”). Moreover, the OLA Report
found that the “SRB relies on MSOP treatment team reports and . . . MSOP risk
assessment[s] in making [its] recommendations to SCAP” and noted that “both SRB and
SCAP probably rely greatly on MSOP’s assessments of [its] clients.” (OLA Report
at 88.) The Task Force Report also recommended that “the Legislature modify current
law to provide for biennial review of the continued commitment of committed individuals,
including review of the placement of the committed individual, without requiring the
individual to request that review.” (Task Force Report at 16.) The Task Force further
noted that “[s]ignificant modifications of the process by which the need for continued
commitment is determined and the standards for evaluating that need will address the
serious issues of duration of commitment and the absence of meaningful release from
commitment.” (Id.)
56
IV.
Motions for Preliminary Injunction
A.
Legal Standard
A court considers four primary factors in determining whether to issue a
preliminary injunction: (1) the threat of irreparable harm to the moving party; (2) the
likelihood of the moving party’s success on the merits; (3) the state of balance between
the alleged irreparable harm and the harm that granting the injunction would inflict on the
other party; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
109, 113 (8th Cir. 1981). This analysis was designed to determine whether the court
should intervene to preserve the status quo until it decides the merits of the case. Id. In
each case, the factors must be balanced to determine whether they tilt toward or away
from granting injunctive relief. See West Pub. Co. v. Mead Data Cent., Inc., 799 F.2d
1219, 1222 (8th Cir. 1986). A preliminary injunction is an extraordinary remedy. See
Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir. 1987).
The party requesting the injunctive relief bears the “complete burden” of proving all of
the factors listed above. Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th
Cir. 1987).
B.
Less Restrictive Alternatives & Re-Evaluation of Class Members
Plaintiffs move for an injunction for the creation of less restrictive alternatives to
confinement at MSOP facilities, as well as a re-evaluation of each of the class members
to determine whether they are each placed in the proper treatment phase and whether they
should be placed in a less restrictive facility. (Doc. No. 364 at 1; Doc. No. 368 at 2.)
57
To the extent Plaintiffs seek re-evaluation, the Court has appointed several expert
witnesses and has assigned them several tasks, as set forth above. One such task is to
conduct extensive evaluations, which will require independent assessments of each of the
class members. Such evaluations shall include, but will not be limited to, whether each
class member is “placed in the proper treatment phase” and whether each class member
would be a candidate for a less restrictive facility. Thus, to the extent Plaintiffs move for
a re-evaluation of each of the class members, the motion is now moot. The Court
nonetheless reserves the right to revise, expand, or otherwise amend the scope of expert
review in this matter as the case progresses.
With respect to less restrictive alternatives, Plaintiffs allege that “MSOP does not
provide for any less restrictive alternatives to confinement at Moose Lake or St. Peter,
such as halfway houses or other less secure facilities.” (Second Am. Compl. ¶ 68.)
Plaintiffs claim that MSOP’s failure to provide a less restrictive alternative to
confinement at those secure facilities violates due process. (See generally id. ¶¶ 241-48.)
Plaintiffs further note that MSOP, as implemented, fails to account for the fact that not all
class members “have the same level of security needs.” (Id. ¶ 245.) Additionally,
Plaintiffs observe that if a patient “no longer meets the statutory requirements for civil
commitment, there is no less restrictive facility or program for [him] to enter.” (Id.)
58
While it previously appeared that Commissioner Jesson was taking steps toward
moving some class members to a less restrictive facility 42 and seeking proposals for the
creation of additional less restrictive alternative facilities, 43 any such efforts were
thwarted, or at least put on hold indeterminately, by Governor Dayton’s November 13,
2013 Letter. (See Dayton Letter at 2 (directing that Commissioner Jesson “oppose any
future petitions by sexual offenders for provisional release” and “suspend [DHS’s] plans
to transfer any sexual offenders to other tightly supervised facilities, such as
Cambridge”).) Indeed, this kind of executive conduct may be a principal source of
DHS’s struggle to translate into reality a program—complete with less restrictive
alternative treatment facilities—that Plaintiffs say exists only on paper. 44
42
On September 12, 2013, Commissioner Jesson sent a letter to state legislators
identifying “a small group of [MSOP] clients who are low functioning and could be
transferred to an existing DHS site” in Cambridge, which she expected “to become
available in the spring of 2014 for use by MSOP later in 2014.” (See Doc. No. 341 at 2
(quoting Jesson letter).)
43
On August 1, 2013, DHS issued a request for proposals for the development of
“less restrictive but highly supervised placements for individuals who would be
provisionally discharged after having been initially committed to a secure treatment
facility.” (Jesson Aff. ¶ 16, Ex. C.)
44
Such political activism with respect to MSOP is not new. To be sure, Governor
Pawlenty previously issued an Executive Order in 2003, directing that state agencies
“ensure that no person who has been civilly committed under Minnesota law as a
sexually dangerous person or as a person with a sexual psychopathic personality is
discharged into the community,” and that the DHS Commissioner “take all appropriate
actions within his authority to ensure that persons who have been civilly committed as
sexually dangerous persons or as persons with sexual psychopathic personalities are not
allowed into the community on pass status, provisional discharge or otherwise,” unless
required by law or court order. (Gustafson Aff. II ¶ 3, Ex. A (“Pawlenty 2003 Executive
Order”) ¶¶ 2-3, available at
(Footnote Continued on Next Page)
59
To the extent Plaintiffs seek the immediate creation of less restrictive alternatives,
the motion is premature nonetheless. Without a current assessment of each of the class
members to determine the exact need for facilities alternative to Moose Lake and
St. Peter, the Court has no way of establishing the specific parameters of such less
restrictive facilities—for example, how many facilities might need to be created, how
many individuals any such facility could and should house, what unique services each
facility would provide, and the varied levels of security that each would necessitate.
The tasks of the Court-appointed experts, as delineated above, include an
assessment of the specific need and parameters for any less restrictive alternative
facilities. Of course, a determination of what features and services less restrictive
alternatives to Moose Lake and St. Peter should have is directly related to expert
evaluation of each of the class members, including dangerousness, which likely will
require a current risk assessment for each of MSOP’s approximately 700 clients. Once
the experts have conducted and completed their evaluations, and the record has been
adequately supplemented, the Court may then address the issues raised in Plaintiffs’
motion on the merits and may thus determine what additional facilities are necessary and
constitutionally required. As it stands now, however, at this early stage, Plaintiffs have
not pointed to sufficient evidence to demonstrate that they are entitled to the immediate
(Footnote Continued From Previous Page)
http://www.leg.mn/archive/execorders/03-10.pdf.) Governor Pawlenty further ordered
that state agencies fulfill their responsibilities regarding SPPs and SDPs “with the
primary consideration of providing protection to the public.” (Id. ¶ 1.)
60
creation of, and placement in, less restrictive alternative facilities. Having considered
each of the relevant Dataphase factors, the Court concludes that Plaintiffs have not
carried their burden of establishing that injunctive relief is warranted at this early stage of
the proceedings. To be clear, however, the Court will not hesitate to order less restrictive
alternatives if Plaintiffs establish that such facilities are constitutionally required. In light
of the foregoing considerations, Plaintiffs’ motion is denied without prejudice.
C.
Special Master
Plaintiffs have also moved for the appointment of a special master. Specifically,
Plaintiffs “request a [s]pecial [m]aster to oversee the implementation of changes that will
lead to a constitutional treatment program.” (Doc. No. 398 at 18 (emphasis in original).)
A court “may, in its discretion, make appointment of a Master to assist in any of the
incidents of a proceeding before it, . . . so long as there is no infringement upon the right
of trial by jury or any prejudice to other substantive right.” Schwimmer v. United States,
232 F.2d 855, 865 (8th Cir. 1956).
For the reasons articulated above, the Court has declined to rule on the
constitutionality of MSOP, or its implementing statutes, at this time. The Court has
further denied Plaintiffs’ motions for injunctive relief. As such, any request for the
appointment of a special master to oversee changes to the program is premature at this
stage of the proceedings. The Court makes no determination, however, as to whether a
special master may be required in the future and reserves the right to appoint such an
61
individual should the record, as developed, support such a need. Consequently, the Court
denies the motion without prejudice. 45
CONCLUSION
Having fully considered the pleadings and arguments of counsel, the Court
concludes that each count of Plaintiffs’ Complaint (with the exception of the equal
protection claim) easily survives dismissal. With respect to Plaintiffs’ motions, the
primary basis upon which Plaintiffs seek declaratory and injunctive relief is the inference
that Plaintiffs suggest should be made from the fact that no one has ever been fully
discharged from MSOP. While that fact is certainly compelling, it, alone, is insufficient
for the Court to grant the requested relief at this early stage of the proceedings. Indeed,
such a fact should not be taken lightly, and may indicate pervasive constitutional
inadequacies of the program; the purpose of the discovery and expert review processes is
to shed light on such claims. Though Plaintiffs are not currently entitled to the injunctive
and declaratory relief they seek, they may well be entitled to such relief if they establish,
and prove true, the allegations set forth in the Complaint.
As is evident from the law cited throughout this opinion, Minnesota may not
constitutionally confine individuals at MSOP for punishment or deterrent purposes.
Given the prison-like conditions described by Plaintiffs, and the lack of treatment and
essentially no-exit regime alleged in this case, it may well be that, with a fully developed
45
Plaintiffs’ assertions, if proven true, may well obligate the Court to appoint a
special master, as other courts throughout the nation have done in similar cases. At this
juncture, however, such an appointment is premature for the reasons stated above.
62
record, the Court will find the totality of the MSOP system to be unacceptably and
unconstitutionally punitive. See Hendricks, 521 U.S. at 373 (Kennedy, J., concurring).
In addition, one would expect that a non-punitive, civil commitment scheme
would provide treatment for those committed because of a “mental disease or mental
abnormality.” See id. at 372. What is more, Minnesota law dictates that civilly
committed individuals have “the right to receive proper care and treatment, best adapted,
according to contemporary professional standards, to rendering further supervision
unnecessary.” Minn. Stat. § 253B.03, subd. 7. If the evidence confirms Plaintiffs’
contentions, and MSOP systemically fails to provide patients with appropriate treatment,
whether because of a lack of qualified staff, a misguided approach, excessive restrictions,
or some other reason, the Court, like others, will not hesitate to take strong remedial
action. 46
Likewise, despite “the object or purpose” of Minnesota’s civil commitment law to
provide treatment, if “the treatment provisions were adopted as a sham or mere pretext”
46
In one such example, the United States District Court for the Western District of
Washington found that treatment professionals at Washington’s sex offender program
had “departed so substantially from professional minimal standards as to demonstrate that
their decisions and practices were not . . . based on their professional judgment.” Turay v.
Seling, 108 F. Supp. 2d 1148, 1159 (W.D. Wash. 2000). The court initially issued an
injunction based on conditions that included the following: inadequate staffing,
inadequate training of staff regarding the clinical mission of the facility, the lack of
individualized treatment, the absence of arrangements for clients to transition to release,
inadequate provisions to allow clients’ families to participate in treatment, and a punitive
treatment environment. See id. at 1151 n.1. The court ultimately required state officials
to provide constitutionally adequate mental health treatment to sex offenders in the
program and monitored their compliance over a thirteen-year time period. Id. at 1152;
see also Turay v. Richards, No. C91-0664RSM, 2007 WL 983132, at *5 (W.D. Wash.
Mar. 23, 2007) (dissolving the injunction).
63
for continued detention, such a scheme would indicate “the forbidden purpose to punish.”
Hendricks, 521 U.S. at 371 (Kennedy, J., concurring). It is the treatment provisions of
the statutory scheme that purportedly distinguish Minnesota’s sex offender commitment
law from criminal punishment. Therefore, individuals must be committed for the purpose
of receiving treatment—not as retribution for their past criminal acts, however heinous,
for which they have already served and completed their sentences. See Crane, 534 U.S.
at 412 (distinguishing “a dangerous sexual offender subject to civil commitment from
other dangerous persons” and finding such a distinction “necessary lest civil commitment
become a mechanism for retribution or general deterrence—functions properly those of
criminal law, not civil commitment”) (internal quotations omitted); see also Hendricks,
521 U.S. at 373 (Kennedy, J., concurring) (“If the civil system is used simply to impose
punishment after the State makes an improvident plea bargain on the criminal side, then it
is not performing its proper function.”). 47 (But see Pawlenty 2003 Executive Order ¶ 1
47
As more fully stated by Justice Kennedy in his consideration of the law at issue in
Hendricks:
Notwithstanding its civil attributes, the practical effect of the Kansas
law may be to impose confinement for life. At this stage of medical
knowledge, although future treatments cannot be predicted, psychiatrists or
other professionals engaged in treating pedophilia may be reluctant to find
measurable success in treatment even after a long period and may be unable
to predict that no serious danger will come from release of the detainee.
A common response to this may be, “A life term is exactly what the
sentence should have been anyway,” or, in the words of a Kansas task force
member, “SO BE IT.” Testimony of Jim Blaufuss, App. 503. The point,
however, is not how long Hendricks and others like him should serve a
criminal sentence. With his criminal record, after all, a life term may well
have been the only sentence appropriate to protect society and vindicate the
wrong. The concern instead is whether it is the criminal system or the civil
(Footnote Continued on Next Page)
64
(ordering that state agencies “fulfill their responsibilities” in relation to SPPs and SDPs
“with the primary consideration of providing protection to the public”).)
Plaintiffs charge that political maneuvering by various executive branch officials
has played far too great a role in the administration of MSOP—in contravention of sound
professional judgment and best practices; not only have Governors past and present
issued executive directives prohibiting discharge from, and exercising control over, the
system, but the Attorney General has also intervened in provisional release proceedings,
which Plaintiffs suggest has politicized a process best left to treatment professionals in
the field. Without in any way prejudging the outcome here, the Court must emphasize
that politics and stigma cannot trump the fundamental rights of the class members who,
pursuant to state law, have been civilly committed to receive treatment. To be sure,
where state actors fail to remedy constitutional infirmities of statutes and programs such
as those at issue here, the federal courts may be called upon to act in the interests of
justice, as required by the evidence.
(Footnote Continued From Previous Page)
system which should make the decision in the first place. If the civil
system is used simply to impose punishment after the State makes an
improvident plea bargain on the criminal side, then it is not performing its
proper function. These concerns persist whether the civil confinement
statute is put on the books before or after the offense. We should bear in
mind that while incapacitation is a goal common to both the criminal and
civil systems of confinement, retribution and general deterrence are
reserved for the criminal system alone.
Hendricks, 521 U.S. at 372-73 (Kennedy, J., concurring).
65
Today, the Court finds that it is constitutionally mandated that only individuals
who constitute a “real, continuing, and serious danger to society” may continue to be
civilly committed to MSOP. See Hendricks, 521 U.S. at 372 (Kennedy, J., concurring).
If the evidence demonstrates that MSOP systematically continues to confine individuals
who are not “a real, continuing, and serious danger to society,” then such confinement
will be held unconstitutional. See id. Thus, the confinement of individuals with
substantial medical or intellectual disabilities, who might never succeed in MSOP’s
program, or are otherwise unlikely to reoffend, may be called into serious question.
As this case proceeds, the Court will address the global challenge to the policies,
conditions, and practices maintained by Defendants. That those committed and confined
to MSOP are sex offenders, who may be subject to society’s opprobrium, does not
insulate the system from a fair and probing constitutional inquiry. If the program violates
the Constitution, the Court will so find and act accordingly.
On the record currently before the Court, however, Plaintiffs have failed to
demonstrate compelling circumstances sufficient to justify injunctive or declaratory relief
at this time. The Court thus denies Plaintiffs’ motions, but without prejudice to renewing
their motions upon the completion of discovery. The Court cautions the parties that its
rulings on the motions currently before it will not dictate any future rulings the Court
may make with the benefit of a complete factual record. That is to say, the Court will not
hesitate to change course with respect to the relief sought by Plaintiffs should discovery
and expert review reveal evidentiary support for Plaintiffs’ claims.
66
While the Court has limited its review of Defendants’ motion to dismiss to the
Complaint and matters of public record, and Plaintiffs’ requests for injunctive relief to the
record currently before the Court, it is worth noting that Plaintiffs and the amicus curiae
reference commitment schemes established by other states and specialized research that
indicate that the “vast majority” of sex offenders can be “safely managed in the
community.” (See, e.g., Doc. No. 410, Nelson Aff. ¶ 2, Ex. 1 at 9.) 48 As a former
Assistant County Attorney who prosecuted sexual assault and child sexual abuse cases,
and as a former Minnesota District Court Judge who handled many such cases, 49 the
undersigned is sensitive to the interests of all of the individuals affected by this matter, as
well as the concerns of the public at large. 50
48
As stated by Grant Duwe, Minnesota Department of Corrections Director
of Research:
[M]any high-risk sex offenders can be managed successfully in the
community. The cost of civil commitment in a high-security facility also
implies that this type of commitment should be reserved only for those
offenders who have an inordinately high risk to sexually reoffend.
Reducing the reliance on civil commitment in a high-security facility could
involve fewer new commitments on the front end and more provisional
discharges on the back end.
(Nelson Aff. ¶ 2, Ex. 1 at 9.)
49
The undersigned was also appointed to serve as a member of the Minnesota
Attorney General’s Task Force on the Prevention of Sexual Violence Against Women in
1988.
50
The Court has received various letters from not only victims and family members
of victims of committed individuals, but also from family members of MSOP clients as
well as individuals who claim to have experienced MSOP first-hand.
67
If the evidence requires it, the Court will act. But it is the Minnesota Legislature
that is best equipped to develop policies and pass laws—within the limits of the
Constitution—that both protect public safety and preserve the rights of the class.
The time for legislative action is now. Time and again, professional assessments
have identified grave deficiencies in the program. Regardless of the claims raised in this
case, and irrespective of the Court’s ultimate rulings on any constitutional questions with
which it is presented, the interests of justice require that substantial changes be made to
Minnesota’s sex offender civil commitment scheme. 51 Whether or not the system is
constitutionally infirm, without prompt action on the part of the legislature and DHS,
MSOP’s reputation as one of the most draconian sex offender programs in existence will
51
If the legislature’s public safety concerns stem from inadequate criminal penalties
for crimes of sexual violence, criminal statutes may warrant revision as well. (See, e.g.,
OLA Report at 46 (“The Legislature should consider providing indeterminate sentencing
for some sex offenders. As a condition of their release, offenders could be required to
successfully complete treatment in prison.”); Task Force Report at 5 (noting the
availability of “extended correctional supervision following release from confinement”
for certain sexual offenses and expressing that “providing treatment to sex offenders
while they are subject to the jurisdiction of the DOC appears to be effective and
cost-effective, and expansion of those treatment programs should be examined carefully,
regardless of any changes in sentencing laws for sexual offenses”).)
Moreover, separate from the issue of indeterminate sentencing, extended
correctional supervision may, and often does, include GPS monitoring, treatment,
curfews, alcohol and drug testing, and other conditions of release and supervision. See,
e.g., Minn. Stat. § 609.3455, subd. 8 (noting that conditions of release “may include
successful completion of treatment and aftercare” program); Minn. Stat. § 244.05, subd. 6
(permitting imposition of conditions of release including random drug testing, house
arrest, daily curfews, and electronic surveillance as well as participation in “an
appropriate sex offender program”).
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continue. 52 The program’s systemic problems will only worsen as hundreds of additional
detainees are driven into MSOP over the next few years. 53 The politicians of this great
State must now ask themselves if they will act to revise a system that is clearly broken, or
stand idly by and do nothing, simply awaiting Court intervention.
ORDER
Based upon the foregoing, and the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint
(Doc. No. [374]) is GRANTED IN PART and DENIED IN PART as follows:
a.
With respect to Plaintiffs’ equal protection claim, the motion
is GRANTED. Count X of Plaintiffs’ Second Amended Complaint (Doc.
No. [301]) is thus DISMISSED.
b.
To the extent Plaintiffs may seek monetary damages against
Defendants in their official capacities, the motion is GRANTED.
52
Criticism of MSOP is not only domestic, but is international in reach. Even Great
Britain has refused to extradite a sex offender when the government would not guarantee
that the suspect would be kept out of MSOP—a program the court deemed “far too
draconian.” Maricella Miranda, UK Court Blocks Eagan Sex-Crimes Suspect’s
Extradition, Pioneer Press (June 28, 2012), http://www.twincities.com/ci_20961564/ukcourt-blocks-minnesota-sex-crimes-suspects-extradition; see Ian Evans, Britain Denies
Extradition of Minnesota Sex Suspect, Star Trib. (June 28, 2012),
http://www.startribune.com/local/south/160704485.html (noting that London court found
that a commitment to MSOP would be a “flagrant denial” of the suspect’s human rights).
53
The OLA Report noted that “under current law and practices,” the population of
MSOP is projected to reach 1,109 by the year 2020. (OLA Report at 4, 6 (“Expected
growth from 2010 to 2020 is 93 percent under current law and practices.”).)
69
c.
2.
In all other respects, Defendants’ motion is DENIED.
Plaintiffs’ Motion for Declaratory Judgment (Doc. No. [360]) is DENIED
WITHOUT PREJUDICE.
3.
Plaintiffs’ Motion for Preliminary Injunction to Provide Less Restrictive
Alternative Treatment Facilities and to Re-Evaluate Class Members (Doc. No. [364]) is
DENIED WITHOUT PREJUDICE.
4.
Plaintiffs’ Motion for Preliminary Injunction for the Appointment of a
Special Master to Oversee the Minnesota Sex Offender Program (Doc. No. [368]) is
DENIED WITHOUT PREJUDICE.
5.
With respect to the experts appointed pursuant to Rule 706 of the Federal
Rules of Evidence (see Doc. No. [393]), the Court orders the following:
a.
The experts’ work shall include, but shall not be limited to:
i.
Evaluating all class members 54 and issuing reports and
recommendations as to: (a) each class member’s current level of
dangerousness (current risk assessment), including whether each
class member poses a “real, continuing, and serious danger to
society”; (b) whether each class member is actually eligible for
discharge under the applicable statutory provisions or otherwise no
longer meets the statutory criteria for initial commitment (or should
54
The experts shall commence their comprehensive evaluations with those
individuals residing in the Assisted Living Unit, the Alternative Program Units, and the
Young Adult Unit.
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otherwise be recommended for provisional or full discharge);
(c) whether each class member is placed in the appropriate phase of
treatment; (d) whether each class member would be a candidate for a
less restrictive facility; and (e) the specific need and parameters for
less restrictive alternative facilities, 55 including the operation of such
facilities;
ii.
Reviewing the current treatment program at MSOP
and its implementation to determine whether the program meets
professional standards of care and treatment for sex offenders and
issuing recommendations as to any changes that should be made to
the treatment program; and
iii.
Reviewing current MSOP policies and practices with
regard to the conditions of confinement to determine whether they
satisfy the balance between safety concerns and a therapeutic
environment and making recommendations for any changes that
should be made to the conditions of confinement at both the
Moose Lake and St. Peter facility.
iv.
The experts shall also report to the Court on the
following: (a) the current professional standards for the treatment of
55
In addition to developing proposals for any new in-patient facilities and issuing
recommendations as to individual class member placement therein, the experts should
also consider possible out-patient treatment options, and shall identify any class members
who, in their professional judgment, are appropriate candidates for out-patient treatment.
71
civilly committed sex offenders and the extent to which MSOP’s
program design reflects those standards; (b) how other civil
commitment programs have reintegrated civilly committed sex
offenders into the community, with particular attention to
community relations; and (c) how other states, if any, are providing
treatment and management of lower-functioning civilly committed
sex offenders in community settings.
b.
The experts’ work shall begin with, but will in no way be
limited to, the following:
i.
Reviewing MSOP treatment and screening
program/process;
ii.
Conducting site visits to St. Peter and Moose Lake and
interviewing patients and staff at each facility;
iii.
Reviewing 20% to 25% of resident charts, with the
aim of reviewing 100% of charts for those individuals in the
Assisted Living Unit, the Alternative Program Units, and the Young
Adult Unit; and
iv.
Identifying residents who are not receiving appropriate
services and making recommendations related thereto.
c.
In conducting their work, the experts shall have complete and
unrestricted access to documents they may require, including the reference
documents and MSOP policy documents set forth above as well as patient
72
files and clinical documents.
d.
Within fourteen (14) days of the date of this Order, and in the
format requested by the experts, Defendants shall provide the experts with
all of the reference documents and MSOP policies and procedures
requested by the experts. (See Doc. No. [422].)
e.
DHS, and all officials, staff, consultants, and contractors for
DHS, are directed to provide the appointed experts with full and complete
access to all residents and staff as well as all relevant information,
documents, and records requested by the experts. Such access shall include,
but shall not be limited to, the following:
i.
Access to all patient files and related documentation;
ii.
Access to meet with, interview, or otherwise
communicate with MSOP patients;
iii.
Access to all MSOP policymakers as well as all
policies and related documentation;
iv.
Access to review the current conditions of confinement
at MSOP and related policies and rules;
v.
Access to review all aspects of the current treatment
program provided by MSOP; and
vi.
Access to privately meet with, interview, or otherwise
communicate with DHS officials, staff, consultants, and contractors
for DHS.
73
vii.
DHS shall also create and provide any aggregation or
analysis of data requested by the appointed experts.
f.
In conducting their work, the experts may call upon the
MPET members previously appointed by the Court (see Doc. No. [281]) as
well as Roberta Opheim, Minnesota State Ombudsman for Mental Health
and Developmental Disabilities, as necessary.
g.
The experts may convene meetings, confer with relevant
individuals and groups, attend case-related court proceedings, and review
all documents submitted to the Court. The parties shall henceforth serve
the experts with all such papers.
h.
The experts shall have ex parte access to the Court and its
Technical Advisor for logistical and organizational purposes, subject to the
limitations of Rule 706.
i.
To facilitate the integrity and effectiveness of the experts’
work, their communications with one another and work product (such as
draft documents, correspondence, e-mails, and conversations) shall be
privileged, confidential, and not admissible.
j.
The experts’ work will be overseen and coordinated by
Magistrate Judge Jeffrey J. Keyes, with the assistance of the Court’s
Technical Advisor.
74
k.
The parties shall meet and confer, facilitated by the Court’s
Technical Advisor if necessary, to establish an interim budget deposit for
the experts and a mechanism for payment. Without prejudice to subsequent
adjustment, such costs shall be initially allocated to Defendants.
Dated: February 19, 2014
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
75