Van Orden et al v. Healthlink, Inc. et al

Filing 192

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion to Dismiss Plaintiffs Fourth Amended Complaint is DENIED with respect to Plaintiffs claim that their Fourteenth Amendment rights were violated due to the lack of adequate care and tre atment, and as to their equal protection and substantive due process claims based upon Missouris statutory reimbursement scheme as applied to Plaintiffs; the motion is GRANTED as to all other aspects of the Fourth Amended Complaint. [Doc. # 123 ] Signed by Honorable Audrey G. Fleissig on 9/25/11. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOHN VAN ORDEN, et al.,
Plaintiffs,
vs.
HAROLD MEYERS, et al.,
Defendants.

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Case No. 4:09CV00971 AGF

MEMORANDUM AND ORDER
This purported class action is before the Court on Defendants’ motion to dismiss
Plaintiffs’ Fourth Amended Complaint for failure to state a claim upon which relief can
be granted. The named Plaintiffs are 14 individuals who are, or were, civilly-committed
residents of the Missouri Department of Mental Health’s (“Department”) Sexual Offender
Rehabilitation and Treatment Services (“SORTS”) facility1 at Southeast Missouri Mental
Health Center (“SMMHC”). In this action commenced on June 22, 2009, they assert
numerous violations of the United States and Missouri Constitutions based on the alleged
lack of adequate care treatment provided to them. They also challenge the
constitutionality of Missouri’s statutory scheme that provides for reimbursement from
Plaintiffs and/or their families or estates for the costs of Plaintiffs’ care and treatment.
Defendants are 11 state officials responsible for various aspects of SORTS, all sued in

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Formerly, the Missouri Sexual Offender Treatment Center (“MSOTC”).

their official capacities.2 For the reasons set forth below, Defendants’ motion to dismiss
shall be granted in part and denied in part.
BACKGROUND
Plaintiffs, and the purported class of approximately 150 SORTS participants, have
been civilly committed to the Department for control, care, and treatment, upon a judicial
finding that they were sexually violent predators and had “a mental abnormality” such
that it was not safe for them to be at large. Plaintiffs allege that Defendants have refused
to provide any meaningful statutorily-mandated “care and treatment” to Plaintiffs.
Rather, according to Plaintiffs, SORTS treats residents with disdain and utilizes practices
which are counter-therapeutic and which destroy any hope residents may have of
reforming. The care and treatment provided consists virtually exclusively of sporadic and
frequently- cancelled group meetings, attended by an employee of SORTS, some of
whom are unlicensed and untrained, at which the residents discuss their problems.
Furthermore, the facilities used for SORTS residents are mold-infested and unhealthy and
unsafe.

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Defendants are Keith Schaefer, the Director of the Department; Mark Stringer,
the Acting Director of Comprehensive Psychiatric Services at SORTS and SMMHC;
Felix Vincenz, the Chief Operating Officer of the Division of Comprehensive Psychiatric
Services at SORTS and SMMHC; Julie Inman, the former Chief Financial Officers at
SORTS and SMMHC; Jay Englehart, the Medical Director at SORTS and SMMHC;
Justin Arnett, the Chief Nurse Executive at SORTS and SMMHC; Melissa Ring, the
Chief Operating Officer of SMMHC; Alan Blake, the Chief Operating Officer of SORTS;
and Judy Sumpter and Harold Meyers, two reimbursement officers of the Department.
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Plaintiffs allege that at various times specific to each Plaintiff, one or more
Defendants or their agents, demanded that they each sign documents allowing the
Department and related entities to collect funds from his personal financial account to be
paid to SMMHC for his “care and treatment,” at the rate of $325 per day. They allege
that two of the named Plaintiffs (John Van Orden and Walter Ritchey) already have
received bills from the Department charging them $9,750 and $8,175 per month,
respectively, with balances continuing to mount. These reimbursement efforts were
undertaken pursuant to Missouri’s statutory scheme that provides that any “person
receiving services” from the Department may be made liable for “the fees for services
rendered to the person by a residential facility . . .” and that the person receiving services
is jointly and severally liable for those fees together with his estate, spouse, and parents.
Plaintiffs claim that the statutory reimbursement scheme, and Defendants’ policies
and practices in accordance therewith, violate the “forfeiture of estate” clause of the
Missouri constitution; and the bill of attainder, cruel and unusual punishment, excessive
fine, equal protection, procedural due process, unreasonable seizure of property, and ex
post facto clauses of the federal and state constitutions. Plaintiffs also claim that the
inadequate care and treatment provided to them, and to all others similarly situated,
violates their substantive due process rights, and renders the reimbursement scheme even
more objectionable, as there is no consideration for the amounts that are statutorily
collectable, turning Plaintiffs’ civil-commitment into state-imposed punishment.
Plaintiffs state in the Fourth Amended Complaint that “[t]his action seeks
prospective relief arising from the plaintiffs’ deprivation of rights under the United States
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and Missouri Constitutions by defendants.” More specifically, in their prayer for relief,
Plaintiffs ask the Court to declare the statutory reimbursement scheme to be
unconstitutional, and to order the return of all property seized from Plaintiffs or their
estates or families pursuant to that scheme. Plaintiffs also seek a declaration that the care
and treatment provided by SORTS is constitutionally inadequate. They also seek
injunctive relief, enjoining Defendants from seeking to obtain payment for the costs of
Plaintiffs’ care and treatment, and to improve the level of care and treatment provided in
certain specific ways, such as by hiring trained psychologists and experts in sex offender
treatment.
In support of their motion to dismiss, Defendants argue that the “forfeiture of
estate” and excessive fines clauses only apply to forfeiture/fines that are a direct result of
a criminal conviction, which is not the case here; the bill of attainder claims fail as a
matter of law because the challenged statutory scheme does not inflict “punishment” on
Plaintiffs without a judicial trial; and the prohibition against cruel and unusual
punishment does not apply to Plaintiffs, who are civilly-committed individuals.
Defendants argue that Plaintiffs’ allegations that they are not receiving adequate
care and treatment also fail to state a claim because states have wide latitude in
developing treatment regimens for civilly-committed sexual offenders. Defendants next
argue that an equal protection challenge to the statutory reimbursement scheme fails
because Plaintiffs are not treated differently than similarly situated individuals, and the
scheme is rationally related to a legitimate state interest.

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Defendants maintain that Plaintiffs have failed to state a substantive due process
claim based on the level of care and treatment provided to them, because no
“punishment” is involved, and because Plaintiffs have failed to identify a “fundamental
right” that is implicated. Defendants next argue that Plaintiffs’ unlawful-seizure-ofproperty claim fails because there is no allegation that Defendants actually seized any
funds from any Plaintiff; and the claims based on the ex post facto clauses in the federal
and state constitutions fail because these clauses only pertain to penal statutes, and the
reimbursement statutes are civil in nature.
Defendants’ remaining arguments in support of dismissal of the Fourth Amended
Complaint are that to the extent Plaintiffs seek reimbursement for amounts collected more
than five years prior to the date of the filing this action, or other relief for conduct
engaged in during that period, such claims are barred by the statute of limitations; to the
extent that the request for the return of property seized constitutes a claim for damages,
such claim is barred by the Eleventh Amendment; Plaintiffs’ challenge to the statutory
scheme regarding reimbursement rights from any of Plaintiffs’ estates is not ripe; and one
named Plaintiff (David Brown) does not have standing because he was released from
SORTS in May 2009.3

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As a preliminary matter, the Court rejects Defendants’ argument that the
structure of Plaintiffs’ Fourth Amended Complaint violates Federal Rule of Civil
Procedure 10. And Defendants’ argument that they are entitled to qualified immunity on
Plaintiffs’ federal constitutional claims is misplaced, as qualified immunity is a defense
that is only available to governmental employees sued in their individual capacity. See
VanHorn v. Oelschlager, 502 F.3d 775, 779 (8th Cir. 2007).
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DISCUSSION
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A plaintiff need only allege facts that permit the reasonable inference that
the defendant is liable, even if the complaint “strikes a savvy judge that actual proof of
the facts alleged is improbable” and recovery “very remote and unlikely.” Hamilton v.
Palm, 621 F.3d 816, 819 (8th Cir. 2010).
Adequacy of Care and Treatment
Missouri’s Sexually Violent Predators Act (“SVPA”) authorizes the civil
commitment of “sexually violent predators,” persons who suffer from a mental
abnormality that makes them more likely to engage in predatory acts of sexual violence if
not confined in a secure facility. Mo. Rev. Stat. §§ 632.480, et seq. The SVPA applies
to persons who have pled or been found guilty of a sexually violent offense, persons
found not guilty of committing a sexually violent offense by reason of mental disease or
defect, persons committed as criminal sexual psychopaths, and persons at any time
convicted of a sexually violent offense who have committed a recent overt act. Id. §§
632.480(5)(a) and (b); 632.484.1(1) and (2). The State has a statutory obligation to
provide “care and treatment” for persons committed under the SVPA, designed to effect
recovery. Id. § 632.495.2 (“If the court or jury determines that the person is a sexually
violent predator, the person shall be committed to the custody of the director of the
department of mental health for control, care and treatment until such time as the person’s
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mental abnormality has so changed that the person is safe to be at large.”); Strutton v.
Meade, No. 4:05CV02022 ERW, 2010 WL 1253715, at *35 (E.D. Mo. March 31, 2010).
The proper standard for analyzing Plaintiffs’ claim was set forth as follows in
Strutton: “Defendants’ actions in denying [Plaintiffs their] statutory right to treatment will
be found unconstitutional under the Fourteenth Amendment if they were so arbitrary or
egregious as to shock the conscience.” Strutton, 2010 WL 1253715, at *35 (citing
Leamer v. Fauver, 288 F.3d 532, 546-47 (3d Cir. 2002) (holding that a substantive due
process claim alleging inadequate treatment for committed sex offender “must focus on
the challenged abuse of power by officials in denying [the plaintiff] the treatment regimen
that was statutorily mandated and was necessary in order for his condition to improve,
and thus for him to advance toward release”)). The question is “how little treatment
Defendants can provide before their behavior becomes conscience-shocking and therefore
unconstitutional.” Id. at *36. This claim is fact-intensive and will require further
development of the record, and is therefore not subject to dismissal at this time.
The Court further agrees with Plaintiffs that their claims for prospective equitable
relief for the allegedly continuing unconstitutionally inadequate treatment are not barred
by the statute of limitations. Accordingly, Defendants’ motion to dismiss Plaintiff’s
substantive due process challenge based on the failure to provide mandated treatment will
be denied.
Plaintiffs’ claim that the level of care and treatment provided constitutes
“punishment,” in violation of the due process clause, however, is subject to dismissal for

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lack of factual support for such a claim. See, e.g., Aune v. Ludeman, No. 09-0015
(JNE/SRN), 2010 WL 145276, at *4-5 (D. Minn. Jan. 8, 2010).
With respect to the standing of Plaintiff Brown, Plaintiffs allege that Brown was
confined at SORTS between November 17, 2008, and May 2009. Jurisdictional issues
such as standing must be determined at the time the lawsuit is filed. Sierra Club v. U.S.
Army Corps of Eng’rs, 446 F.3d 808, 814 (8th Cir. 2006); see also Smith v. Norris, 877
F. Supp. 1296 (E.D. Ark. 1995) (holding that inmate complaining of unconstitutional
prison conditions in his unit continued to have standing to pursue his claim for injunctive
relief, even though he had been transferred out of unit, where transfer was effectuated
subsequent to filing of his complaint), rev’d in part on other grounds, Smith v. Ark. Dep’t
of Corr., 103 F.3d 637 (8th Cir. 1996). Thus, Defendants’ argument that Brown has no
standing to pursue this claim is rejected.
Constitutionality of Statutory Scheme for Payment for Services
As noted above, under Missouri law, any “person receiving services” from the
Department may be made liable for “the fees for services rendered to the person by a
residential facility, day program or specialized service operated or funded by the
department.” Mo. Rev. Stat. § 630.205.1. The person receiving services is jointly and
severally liable for those fees together with “the person’s estate, spouse, parents, if the
person is a minor, and any fiduciary or representative payee holding assets for the person
or on the person’s behalf.” Id.
The director of the Department is charged with determining “the maximum amount
for services which shall be charged in each of the residential facilities . . . operated or
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funded by the department.” Id. § 630.210.1. When the person who received services
dies, “the total amount paid to the decedent or expended upon his behalf . . . shall be a
debt due the state or county . . . from the estate of the decedent.” Id. § 473.398. As a
seventh class creditor, the State’s debt is paid only after satisfying certain costs, such as
funeral expenses, and other debts, such as taxes due to the United States, and after
allowing for exempt property, such as the family and homestead allowances. The
decision of the Director to seek reimbursement for services rendered may be appealed to
the Missouri circuit court, under the Missouri Administrative Procedures Act. Id.
§ 630.215.3. “The decision of the director in determining the amount to be charged for
services to a patient,” may be also reviewed in Missouri circuit court. Id. § 630.120.
The Court finds Defendants’ argument that Plaintiffs’ challenge to this statutory
scheme is not ripe for adjudication to be without merit. The claims of Van Orden and
Ritchey are clearly ripe for review as payments due have already been assessed as to
them. Furthermore, Plaintiffs have alleged that each of them have been pressured, or at
least asked, to sign documents that will enable Defendants to collect payments pursuant
to the statutes at issue here. As with the claim based upon allegedly unconstitutional
treatment, Plaintiffs’ claims for equitable relief for the continuing and prospective
unconstitutional efforts to charge Plaintiffs or their estates for care and treatment
allegedly not provided, are not barred by the statute of limitations. Defendants have not
identified any specific acts challenged by Plaintiffs which would fall beyond the
applicable five-year limitations period.

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Plaintiffs have taken wide aim at the state and federal constitutions in asserting
that the statutory scheme, on its face or as applied to them, is unconstitutional. The Court
concludes that most of the constitutional clauses relied upon by Plaintiffs are unavailing,
largely for the reasons posited by Defendants. The “forfeiture of estate” clause of the
Missouri Constitution applies to the consequences of criminal convictions, and the
“excessive fine” clauses of the state and federal constitutions apply to actions by the
government to inflict punishment for criminal offenses. While, as Plaintiffs allege, their
civil commitment would not have taken place but for their earlier criminal conviction, the
Missouri statutes that allow the Department to seek reimbursement from Plaintiffs and/or
their estates do not impose punishment for Plaintiffs’ criminal convictions. Plaintiffs
have cited no cases, nor has the Court found any cases, suggesting that these clauses have
any applicability to the claims at issue here.
Similarly, the ex post facto clause applies to laws imposing punishment, which is
not the case here. See Stanley v. Ohio Dep’t of Rehab. & Corr., No. C2-02-178, 2002
WL 31409435, at *2 (S.D. Ohio Aug. 13, 2002) (explaining that imposition of
co-payment for medical services upon prisoner did not violate ex post facto clause, even
though change occurred subsequent to prisoner’s conviction, because co-payment did not
impose any additional punishment or risk of punishment). The Court also concludes that
application of the reimbursement statutory scheme to Plaintiffs does not implicate their
constitutional rights to be free from unlawful seizure of their effects. See Bailey v.
Carter, 15 F. App’x 245, 250 (6th Cir. 2001) (rejecting “illegal search and seizure claim”
as to prison’s regulation, pursuant to state law allowing prisons to recover costs of
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supervision and incarceration from certain offenders, requiring inmates must pay a $3
copayment for certain medical visits). Again, Plaintiffs have cited no cases, nor has the
Court found any, suggesting that the federal and state prohibitions against unlawful
searches and seizures have applicability here.
A prohibited bill of attainder is a legislative act that applies “either to named
individuals or to easily ascertainable members of a group in such a way as to inflict
punishment on them without a judicial trial.” United States v. Lovett, 328 U.S. 303, 315
(1946). The statutory reimbursement scheme, as written or applied, does not fit this
definition. Similarly, the claim that the statutory scheme, as written or applied,
constitutes “cruel and unusual punishment,” fails as a matter of law. See Bailey, 15 F.
App’x at 250.
Plaintiffs’ procedural due process challenge to the statutory reimbursement scheme
also fails as a matter of law, as they have pre-deprivation notice and post-deprivation
judicial review available as to both the decision to seek reimbursement and the amount
sought. See Reynolds v. Wagner, 128 F.3d 166, 179-80 (3d Cir. 1997) (holding that
taking funds from inmates’ accounts to cover medical services did not violate procedural
due process where notice and post-deprivation remedies existed).
Plaintiffs’ claim that Defendants’ acts in allegedly taking or threatening to take
money from Plaintiffs for treatment that was not provided, violate Plaintiffs’ substantive
due process rights shall, however, be permitted to proceed. Cf. Stanley, 2002 WL
31409435, at *2 (holding that requiring prisoners to pay for services actually received
does not violate due process).
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This leaves Plaintiffs’ equal protection claim. In their Fourth Amended
Complaint, Plaintiffs allege that Defendants treat Plaintiffs differently than other civillycommitted patients of the Department in that Defendants charge a lower fee to patients
who were civilly committed due to mental abnormalities not related to sexual conduct,
than to patients such as Plaintiffs, whose mental abnormalities were related to sexual
conduct, and whose treatment is inferior to that provided to other patients. Plaintiffs
allege that there is no rational basis for this difference. While Defendants challenge
whether such differences actually exist and whether there is a rational basis for them,
these are issues best determined upon further factual development of the record.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss Plaintiffs’
Fourth Amended Complaint is DENIED with respect to Plaintiffs’ claim that their
Fourteenth Amendment rights were violated due to the lack of adequate care and
treatment, and as to their equal protection and substantive due process claims based upon
Missouri’s statutory reimbursement scheme as applied to Plaintiffs; the motion is
GRANTED as to all other aspects of the Fourth Amended Complaint. [Doc. #123]

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 25th day of July, 2011.

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