Karsjens et al v. Minnesota Department of Human Services et al

Filing 468

ORDER TO SHOW CAUSE (Written Opinion): Show Cause Hearing set for 6/25/2014 02:00 PM in Courtroom 7C (STP) before Judge Donovan W. Frank. Show Cause Response due by 6/11/2014. Signed by Judge Donovan W. Frank on 6/2/14. (kt) (Additional attachment(s) added on 6/2/2014: # 1 SEALED Exhibit) (kt).

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,
ORDER TO SHOW CAUSE
v.
Lucinda Jesson, Dennis Benson, Kevin
Moser, Tom Lundquist, Nancy Johnston,
Jannine Hébert, and Ann Zimmerman,
in their individual and official capacities,
Defendants.

This matter is before the Court on a report by the Court-appointed experts dated
May 18, 2014 (“Expert Recommendation”), which is attached as a sealed exhibit to this
Order. (Ex. 1.)
BACKGROUND
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.) On February 19, 2014, the Court
ordered that the experts begin their work, in part, by “[i]dentifying residents who are not
receiving appropriate services and making recommendations related thereto.” (Doc.
No. 427 at 72.) The experts were also ordered to prioritize their evaluations of those

individuals residing in the Young Adult Unit, the Assisted Living Unit, and the
Alternative Program Units. (Id. at 70 n.54, 72.)
DISCUSSION
The Court has received the Expert Recommendation dated May 18, 2014, which it
has filed under seal as an attachment to this Order. (Ex. 1.) The Expert
Recommendation includes a summary and discharge recommendation for an individual
who the Court will identify only as “E.T.” (Id.) E.T. has “no adult criminal history” and
was 19 years old when committed to MSOP. (Id. at 1.) According to the experts, E.T.’s
commitment to MSOP “was as a result of behavior that he engaged in between the ages
of 10 and 14.” (Id.) E.T.’s file also apparently makes reference to incidents that occurred
while he was in juvenile placement facilities, and for which no charges were filed against
him. (See id. at 1-2.) The experts opine that it “is likely” that E.T.’s “history of general
delinquency,” including “fighting, running away,” and “engaging in rule violating
behaviors,” contributed to his commitment to MSOP. (Id. at 2.) In their report, the
experts ultimately conclude that:
[E.T.] has no adult criminal history. The sexual offending behavior leading
to his indefinite placement at MSOP occurred while he was a juvenile only.
There is good reason to believe that these sexual offenses were influenced
by his own history of sexual victimization and a lack of understanding as to
how to deal with his trauma. These and other problematic behaviors were
likely exacerbated by his ADHD status and untreated complex trauma.
Overall, there is little evidence to suggest that [E.T.] is a dangerous sexual
offender who poses a significant risk to public safety. As such, the panel
unanimously agrees that [E.T.] should be unconditionally discharged from
MSOP.
(Id. at 4.) The experts further identify a family member with whom E.T. would be
welcome to live and work upon discharge. (Id.) Additionally, the experts state that E.T.
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“has been medication compliant since arriving at MSOP.” (Id. at 2.) They also note that
“[i]t appears that [E.T.] completed treatment related to his sexual offending history prior
to placement at MSOP” and that “[i]t is unlikely that he requires additional intervention
in this regard.” (Id.)
In support of their conclusions, the experts discuss E.T.’s pertinent history and
treatment participation at MSOP. (Id. at 2-3.) The experts also highlight risk assessment
processes for juveniles and state the following:
The literature on sexual offender risk assessment is clear that juveniles are
not just “small adults”; specialized tools and methods are required for use
with this population. Research also shows a strong effect of aging on risk
in the juvenile population, in that most sexual offending committed by
juveniles is linked more to development than to deviance, per se. Use of
actuarial methods is common amongst adult sexual offenders, but the
literature is cautionary with respect to the use of such methods with youth.
In particular, those tools that have been developed for use with juveniles
have only short-term predictive validity; there are no tools in common use
that profess to provide long-term predictive validity in juveniles.
It is also important to note that research on juvenile sexual offenders
suggests that they have low recidivism rates and that they are more similar
to other justice-involved juveniles than adult sexual offenders. In fact,
most juveniles who engage in sexually abusive behaviors do not continue to
offend sexually during adulthood (only 4.3% are arrested for a sexual
offense as an adult). This finding is most likely due to the fact that juvenile
offending behaviors are driven by different issues than those that drive
adults to commit sexual offenses (e.g., more opportunistic than predatory,
curiosity based, related to social problems, less compulsive). Moreover,
juveniles are more amenable to change than adults and, as such, those who
engage in sexually abusive behaviors during youth are more responsive to
interventions.
(Id. at 3.)
In light of the Expert Recommendation with respect to E.T., as well as the Court’s
prior order on Defendants’ motion to dismiss and Plaintiffs’ requests for injunctive relief
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(Doc. No. 427), the Court orders Defendants to show cause why E.T.’s continued
confinement is not unconstitutional and why E.T. should not be immediately and
unconditionally discharged from MSOP, as unanimously recommended by the experts.
ORDER
Based upon the foregoing, and the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

Defendants shall show cause why E.T.’s continued confinement at MSOP

does not violate the Due Process Clause of the Fourteenth Amendment to the United
States Constitution.
2.

Defendants shall show cause why E.T. should not be immediately and

unconditionally released from MSOP.
3.

Defendants shall show cause in the form of a written brief to be filed with

the Court on or before June 11, 2014.
4.

Plaintiffs shall file a responsive brief on or before June 18, 2014.

5.

Counsel for the parties shall appear before the Court for a hearing on this

matter on June 25, 2014 at 2:00 p.m. in Courtroom 7C, Warren E. Burger Federal
Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota.

Dated: June 2, 2014

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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