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

Filing 338

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Defendants Motions to Dismiss Plaintiffs Fifth Amended Complaint are DENIED with respect to Plaintiffs substantive due process claim based on lack of adequate care and treatment, Pl aintiffs substantive due process and equal protection claims based on Missouris statutory reimbursement scheme, and Plaintiffs alternative disability discrimination claim under the ADA; the motions are GRANTED as to all other aspects of Plaintiffs Fifth Amended Complaint. (Docs. No. 273 & 330 .) Signed by District Judge Audrey G. Fleissig on 10/17/2014. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN VAN ORDEN, et al.,
Plaintiffs,
v.
KEITH SCHAEFER, et al.,
Defendants.

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Case No. 4:09CV00971 AGF

MEMORANDUM AND ORDER
This putative class action is before the Court on Defendants’ motions (Docs. No. 273
& 330) to dismiss Plaintiffs’ Fifth Amended Complaint for failure to state a claim upon
which relief can be granted. The named Plaintiffs are individuals who are, or were, civillycommitted residents of the Missouri Department of Mental Health’s (“Department”) Sexual
Offender Rehabilitation and Treatment Services (“SORTS”)1 facilities in Farmington and
Fulton, Missouri. Plaintiffs commenced this 42 U.S.C. § 1983 action on June 22, 2009,
asserting numerous violations of the United States and Missouri constitutions based on the
alleged lack of adequate care and 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 state officials responsible for various aspects of SORTS, all sued solely in

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

their official capacities.2 For the reasons set forth below, Defendants’ motions to dismiss
shall be granted in part and denied in part.
BACKGROUND
The Court previously granted in part and denied in part a nearly identical motion to
dismiss brought by Defendants in response to Plaintiffs’ Fourth Amended Complaint. (Doc.
No. 192.) Plaintiffs’ Fourth Amended Complaint (Doc. No. 117) claimed that the statutory
reimbursement scheme, Mo. Rev. Stat. § 630.205 et seq., and Defendants’ policies and
practices in accordance therewith, violated 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, substantive due process, unreasonable seizure of
property, and ex post facto clauses of the federal and state constitutions. Plaintiffs further

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Defendants are Keith Schaefer, Director of the Department; Rick Gowdy, Director of
Forensic Psychiatry for the Department; Joseph Parks, Chief Clinical Officer of the Office
of the Director at the Department; Robert Reitz, Director of Psychiatric Facilities and Chief
Executive Officer of Fulton State Hospital; Melissa Ring, Chief Operating Officer of
SORTS, which is a division or office of the Southeast Missouri Mental Health Center
(“SMMHC”); Julie Inman Regional Executive Officer of SMMHC; Linda Moll, Director of
Treatment Services at SMMHC; Alan Blake, former Chief Operating Officer of SORTS;
Jay Englehart, Medical Director at SMMHC and SORTS; Mark Stringer, Director of
Behavioral Services of Department; Donna Augustine, Interim Chief Operating Officer of
SMMHC; Dave Schmitt, Quality Improvement Director of SMMHC; Justin Arnett, Chief
Nurse Executive of SMMHC; Marty Martin-Forman, Chief Operating Officer of Fulton
State Hospital; Ian Fluger, Program Coordinator for SORTS; Sherry Lee, Chief Nurse
Executive for Fulton State Hospital; Kristina Bender-Crice, Unit Program Supervisor of
SORTS; Ericka L. Kempker, psychologist for the Department; and Judy Sumpter and
Harold Meyers, two reimbursements officers of the Department. Plaintiffs added George
Lombardi, Director of the Missouri Department of Corrections, as a Defendant on July 8,
2014. (Docs. No. 302 & 315). Lombardi has filed a separate motion to dismiss, adopting
all of the arguments raised by his co-Defendants. (Doc. No. 330). Finally, Plaintiffs assert
claims against “Doe Defendants,” who are unidentified past, present, or future employees,
vendors, and independent contractors of the Department, sued in their official capacities, for
having some responsibility for the violation of Plaintiffs’ rights.
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claimed that the inadequate care and treatment provided to them violated their substantive
due process rights, and rendered the reimbursement scheme even more objectionable, as
there was no consideration for the amounts that were statutorily collectable, turning
Plaintiffs’ civil commitment into state-imposed punishment. Plaintiffs brought their claims
on behalf of themselves and all others similarly situated, and sought as relief a declaration
that the care and treatment provided by SORTS, and the statutory reimbursement scheme for
such treatment, were unconstitutional; an order enjoining Defendants from seeking to obtain
payment for the costs of Plaintiffs’ care and treatment and requiring Defendants 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; and an order returning all property
seized from Plaintiffs or their estates or families pursuant to the statutory reimbursement
scheme.
In ruling on Defendants’ motion to dismiss the Fourth Amended Complaint, the
Court rejected the following procedural challenges raised by Defendants: that Plaintiffs’
claims were barred by Missouri’s five-year statute of limitations for actions under 42 U.S.C.
§ 1983; that Plaintiffs’ challenge to the statutory reimbursement scheme was not ripe
because Plaintiffs did not allege that Defendants had actually enforced any claim for
reimbursement; that to the extent Plaintiffs’ request for return of property seized constituted
a claim for damages, such claim was barred by the doctrines of qualified immunity and
Eleventh Amendment immunity; and that Plaintiff David Brown lacked standing because he
no longer resided at SORTS. (Doc. No. 192 at 5.) The Court held that because Plaintiffs
alleged injury on a continuing basis, their claims were not barred by the statute of

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limitations. (Id. at 7, 9.) The Court likewise found that Defendants’ ripeness argument was
without merit because “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.” (Id. at 9.) Further, the Court rejected Defendants’ qualified
immunity defense as unavailable to governmental employees sued solely in their official
capacities, as here. (Id. at 5 n.3.) Finally, the Court held that standing is determined at the
time the lawsuit was filed, and Plaintiff Brown’s confinement at SORTS at that time gave
him standing to pursue his claims. (Id. at 8.)
Regarding Defendants’ substantive arguments that Plaintiffs’ Fourth Amended
Complaint failed to state a claim based on inadequate treatment and care, the Court held that
Plaintiffs’ claims that the treatment provided to them, or lack thereof, violated their
substantive due process rights was a “fact-intensive” claim, which required further
development of the record and was therefore not subject to dismissal at that time. (Doc. No.
192 at 7.) However, the Court found that “Plaintiffs’ claim that the level of care and
treatment provided constitutes ‘punishment’” was “subject to dismissal for lack of factual
support for such a claim.” (Id. at 7-8.)
Regarding Plaintiffs’ claims that the statutory reimbursement scheme was unlawful,
the Court agreed that Plaintiffs’ Fourth Amended Complaint failed to state a claim under the
“forfeiture of estate” clause of the Missouri constitution and the excessive fine clauses of the
federal and state constitutions because these clauses apply only to actions by the
government to inflict punishment for criminal offenses. (Doc. No. 192 at 10.) Likewise, the
Court held that the reimbursement scheme did not implicate the bill of attainder, ex post

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facto, unlawful search and seizure, or cruel and unusual punishment clauses of the federal or
state constitutions. (Id. at 10-11.) The Court further held that Plaintiffs’ procedural due
process challenge to the statutory reimbursement scheme failed as a matter of law because
of the pre-deprivation notice and post-deprivation judicial review procedures available
under the relevant statute, as to both the decision to seek reimbursement and the amount
sought. (Id. at 11.) However, the Court permitted Plaintiffs’ substantive due process and
equal protection claims regarding the reimbursement scheme to go forward, as these claims
were “best determined upon further factual development of the record.” (Id. at 11-12.)
Following the Court’s ruling, the only claims remaining in Plaintiffs’ Fourth
Amended Complaint were (1) that Defendants’ lack of adequate care and treatment violated
Plaintiffs’ substantive due process rights, and (2) that Missouri’s statutory reimbursement
scheme as applied to Plaintiffs violated their substantive due process and equal protection
rights. The Court thereafter granted Plaintiffs’ motion for class certification, certifying two
classes: (1) a “Treatment Class” consisting of persons who are or will be residents of
SORTS during the pendency of this action, and who seek relief related to the treatment or
lack of treatment provided to SORTS residents; and (2) a “Charging Class” consisting of
persons who are or will be residents of SORTS during the pendency of this action, and
former SORTS residents, who have been or will be billed or charged for their care,
treatment, room, or board at SORTS. (Doc. No. 197.)
On February 6, 2014, Plaintiffs filed a motion for leave to file a fifth amended
complaint. (Doc. No. 255.) Plaintiffs asserted that “the heart of the claims” had not been
changed, but Plaintiffs sought to plead new facts gathered from Defendants’ internal

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documents; to add a new, alternative claim under the Americans with Disabilities Act (the
“ADA”), 42 U.S.C. § 12101 et seq.; and to add and drop certain parties. (Id.) Defendants
did not oppose Plaintiffs’ motion for leave, and the Court granted Plaintiffs’ motion. (Doc.
No. 257.)
Plaintiffs filed their Fifth Amended Complaint (Doc. No. 258) on February 19, 2014.
Plaintiffs continue to assert the claims that survived the last motion to dismiss, namely, that
Defendants’ inadequate care and treatment of Plaintiffs violates Plaintiffs’ substantive due
process rights, and that the statutory reimbursement scheme violates Plaintiffs’ substantive
due process and equal protection rights. Plaintiffs also replead some of their dismissed
claims, namely, that the statutory reimbursement scheme violates Plaintiffs’ rights under the
cruel and unusual punishment, procedural due process, unreasonable seizure of property,
and ex post facto clauses of the federal and state constitutions. (Id. at 74-83.) Plaintiffs do
not replead the dismissed “forfeiture of estate,” bill of attainder, or excessive fines claims.
But Plaintiffs add claims that the inadequate care and treatment they received constitutes
cruel and unusual punishment and double jeopardy in violation of the Eighth Amendment,
and, alternatively, that the care and treatment provided at SORTS, as compared to other
Department programs, violates the ADA.
Defendants brought the instant motion to dismiss on April 22, 2014, and newlynamed Defendant George Lombardi filed a separate motion to dismiss on August 25, 2014,
adopting all of the arguments of his co-Defendants. (Docs. No. 273 & 330.) Defendants
raise nearly identical arguments as they raised in response to Plaintiffs’ Fourth Amended
Complaint. Specifically, Defendants reassert each of the procedural bars they raised in their

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last motion to dismiss, including the statute of limitations, ripeness doctrine, qualified
immunity, and Eleventh Amendment immunity. And Defendants again challenge the
standing of one Plaintiff, this time Macon Baker, whom Defendants allege was released
from SORTS and was not charged any money for any treatment received at SORTS.
Defendants also reassert many of their substantive challenges to Plaintiffs’ claims.
Specifically, Defendants maintain that Plaintiffs’ allegations relating to the statutory
reimbursement scheme fail to state an equal protection claim because Plaintiffs are not
treated differently than similarly situated individuals, and the scheme is rationally related to
a legitimate state interest; fail to state a substantive due process claim because no
“fundamental right” is implicated; fail to state a procedural due process claim because the
statute provides adequate notice and judicial review procedures; fail to state an unreasonable
seizure of property claim because Plaintiffs do not allege Defendants actually seized any
property from Plaintiffs; and fail to state an ex post facto claim because the reimbursement
statute is civil, not penal.
Defendants also argue that the Eighth Amendment prohibition against cruel and
unusual punishment does not apply to Plaintiffs’ care and treatment or reimbursement
claims because Plaintiffs are civilly, rather than criminally, committed.
Finally, Defendants argue that Plaintiffs’ new and alternative ADA claim fails as a
matter of law because the ADA only requires a reasonable accommodation for a plaintiff’s
disability, and “[a] reasonable accommodation has been given to Plaintiffs in the form of a
sexual offender program to assist them[.]” (Doc. No. 276 at 25.)

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DISCUSSION
To survive a motion to dismiss for failure to state a claim, a plaintiff’s allegations
must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). The reviewing court must accept the plaintiff’s
factual allegations as true and construe them in the plaintiff’s favor, but it is not required to
accept the legal conclusions the plaintiff draws from the facts alleged. Iqbal, 556 U.S. at
678; Retro Television Network, Inc. v. Luken Commc’ns, LLC, 696 F.3d 766, 768-69 (8th
Cir. 2012). A court must “draw on its judicial experience and common sense,” and consider
the plausibility of the plaintiff’s claim as a whole, not the plausibility of each individual
allegation. Zoltek Corp. v. Structural Polymer Group, 592 F.3d 893, 896 n.4 (8th Cir. 2010)
(quoting Iqbal, 556 U.S. at 679).
Procedural Challenges
As an initial matter, the Court rejects Defendants’ statute of limitations, ripeness,
immunity, and standing challenges for the same reasons it did so previously. Plaintiffs’
claims allege inadequate treatment and unlawful efforts to seek reimbursement on a
continuing basis, and as such, are not barred by the statute of limitations. See Lake St. Louis
Cmty. Ass’n v. Oak Bluff Preserve, 956 S.W.2d 305, 309-10 (Mo. Ct. App. 1997) (“Missouri
recognizes the continuing or repeated wrong rule,” under which “the wrong may be said to
continue from day to day, and to create a fresh injury from day to day.”) (citations omitted).
Likewise, Defendants’ ripeness arguments continue to be without merit, as Plaintiffs allege
that Defendants are actively seeking to obtain reimbursement. See South Dakota Mining

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Ass’n v. Lawrence Cty., 155 F.3d 1005, 1008 (8th Cir. 1998) (“A plaintiff does not have to
await consummation of threatened injury before bringing a declaratory judgment action.
Instead, an action is ripe for adjudication if the plaintiff faces injury that is certainly
impending,” meaning plaintiffs “have shown a realistic danger of sustaining an immediate,
direct injury as a result of the operation or enforcement of the challenged [provision].”)
(citations omitted). Further, as the Court previously explained, Defendants cannot claim
qualified immunity, as that defense does not apply to governmental employees sued solely
in their official capacities, as here. See VanHorn v. Oelschlager, 502 F.3d 775, 779 (8th
Cir. 2007). Defendants’ Eleventh Amendment immunity argument also fails because the
Eleventh Amendment does not bar claims against state officials for prospective equitable
relief, including monetary awards that are “restitutionary in nature” or are “incidental to or
intertwined with injunctive relief,” as the return of any improperly seized property would be
here. Hopkins v. Saunders, 199 F.3d 968, 977 (8th Cir. 1999). Finally, the Court rejects
Defendants’ challenge to Plaintiff Macon Baker’s standing because Plaintiffs allege that
Baker was detained at SORTS on the date the lawsuit was filed, and, as the Court has
already held, that is the date on which jurisdictional issues such as standing are determined.
See Sierra Club v. U.S. Army Corps of Eng’rs, 446 F.3d 808, 814 (8th Cir. 2006).
Adequacy of Care and Treatment
This Court has already held, and Defendants do not appear to challenge, that
Plaintiffs have stated a plausible claim that the lack of adequate care and treatment at
SORTS violates Plaintiffs’ substantive due process rights. Plaintiffs’ Fifth Amended
Complaint only pleads more detailed facts in support of this claim.

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However, the Court agrees with Defendants that the inadequate care and treatment
claim is more properly addressed under the Fourteenth Amendment than the Eighth
Amendment. See Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir. 2004) (holding that the
Fourteenth, rather than the Eighth, Amendment applies to civilly committed individuals).
Therefore, the Court will dismiss Plaintiffs’ claims that the inadequate care and treatment
they received violates the Eighth Amendment’s prohibitions against cruel and unusual
punishment and double jeopardy. In doing so, the Court recognizes that “[u]nder the
Fourteenth Amendment, civilly-committed persons . . . are entitled to at least as great
protection as that afforded convicted prisoners under the Eighth Amendment.” Beaulieu v.
Ludeman, 690 F.3d 1017, 1045 (8th Cir. 2012) (citation omitted).
Statutory Reimbursement Scheme
For the same reasons discussed in ruling on Defendants’ last motion to dismiss, the
Court will dismiss Plaintiffs’ claims that the statutory reimbursement scheme violates
Plaintiffs’ rights under the cruel and unusual punishment, procedural due process,
unreasonable seizure of property, and ex post facto clauses of the federal and state
constitutions, but the Court will not dismiss Plaintiffs’ claims that the reimbursement
scheme violates their substantive due process and equal protection rights.
The additional factual details pled in Plaintiffs’ Fifth Amended Complaint do not
alter the Court’s prior conclusion that the statutory reimbursement scheme here does not
implicate Plaintiffs’ constitutional rights to be free from unreasonable seizure of property,
cruel and unusual punishment, or ex post facto laws. See Bailey v. Carter, 15 F. App’x 245,
249-50 (6th Cir. 2001) (rejecting similar “illegal search and seizure” and “cruel and unusual

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punishment” claims regarding state law allowing prisons to recover costs of supervision and
incarceration from certain offenders); Stanley v. Ohio Dep’t of Rehab. & Corr., No. C2-02178, 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). Nor does the reimbursement
scheme violate procedural due process because, as the Court previously held, the statute
provides Plaintiffs with pre-deprivation notice and post-deprivation judicial review
procedures as to both the decision to seek reimbursement and the amount sought. See Mo.
Rev. Stat. §§ 630.210, 630.215; see also 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).
However, the Court will allow, as it did previously, Plaintiffs’ substantive due
process and equal protection challenges to the reimbursement scheme to proceed past the
pleading stage. Plaintiffs’ allegations that Defendants violated their fundamental rights by
taking or threatening to take money from them for treatment that was not adequately
provided, and that Defendants treat SORTS residents differently than other civillycommitted residents by charging SORTS residents higher fees for inferior treatment without
any rational basis for such differences, continue to state plausible claims that will benefit
from further development of the record.

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Alternative ADA Claim
The ADA provides that “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. To state a claim under Title II of the ADA, plaintiffs must
allege (1) they are qualified individuals with a disability; (2) they were excluded from
participation in or denied the benefits of a public entity's services, programs, or activities, or
were otherwise discriminated against; and (3) such exclusion, denial or discrimination was
because of the disability. Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998).
The Supreme Court has held that “undue institutionalization” and “unjustified
segregation of persons with disabilities” may qualify as a form of discrimination under the
ADA. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597-600 (1999). However, the state
must only employ “reasonable modifications to avoid discrimination” and need not employ
modifications that “entail a fundamental alteration of the States’ services and programs.”
Id. at 603; see also 28 C.F.R. § 35.130(b)(7). In Olmstead, the Supreme Court noted that
“[i]f, for example, the State were to demonstrate that it had a comprehensive, effectively
working plan for placing qualified persons with mental disabilities in less restrictive
settings, and a waiting list that moved at a reasonable pace not controlled by the State's
endeavors to keep its institutions fully populated, the reasonable-modifications standard
would be met.” 527 U.S. at 605-06.
Plaintiffs allege that under the ADA, they have the right to live integrated lives, to
not be segregated, to be in the custody of the least restrictive alternative for commitment,

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and to be treated equally to civilly committed residents of other Department programs with
respect to opportunities for release and resources expended for care and treatment. Plaintiffs
allege that Defendants violated these rights under the ADA by unjustifiably
institutionalizing even those Plaintiffs whom Defendants conceded presented “no apparent
risk” (Doc. No. 258 at 21, 118), and by failing to provide Plaintiffs with the same access to
funding, treatment, and opportunities for release provided to other Department residents
committed for non-sex-related mental disabilities. Plaintiffs assert that Defendants’ own
statements that “no one has ever graduated from [SORTS]” (Id. at 122) demonstrates that
Defendants do not have a “comprehensive, effectively working plan for placing qualified
persons with mental disabilities in less restrictive settings” as contemplated by Olmstead.
Defendants do not contest that Plaintiffs are persons with disabilities as defined by
the ADA or that they qualify for the benefit of non-discriminatory care and treatment under
the ADA. However, Defendants dispute that the care and treatment they provide to
Plaintiffs is discriminatory. Defendants argue that the ADA only requires “reasonable
accommodations” in policies, practices, or procedures in order to avoid discrimination on
the basis of disability, and that the SORTS program itself is such a reasonable
accommodation. Defendants do not address Plaintiffs’ allegations of discrimination based
on unequal access to funding, treatment, and opportunities for release as other civilly
committed residents of the Department with non-sex-related mental disabilities.
The Court finds that Plaintiffs’ allegations that they are being unjustifiably
institutionalized even when they present “no apparent risk,” without an effective working
plan for placing them in less restrictive settings, and that they are not afforded the same

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access to treatment and opportunities for release as other civilly committed residents, state a
plausible claim for disability discrimination under the ADA. See Ireland v. Anderson, No.
3:13–cv–3, 2014 WL 3732014, at *10 (D.N.D. July 25, 2014) (Plaintiffs’ allegations that
“[a]fter commitment [individuals found to be “sexually dangerous” under state statute] have
fewer services, facilities, and privileges than inmates and more restrictions than other civilly
committed individuals” were sufficient “to state a plausible claim under Title II of the
ADA.”). Whether Plaintiffs’ requests for alterations in funding, treatment, and
opportunities for release or transfer to less restrictive settings constitute “reasonable
accommodations” to avoid discrimination or are, alternatively, “fundamental alterations” of
the state’s services and programs are fact-intensive issues that require further development
of the record.
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants’ Motions to Dismiss Plaintiffs’ Fifth
Amended Complaint are DENIED with respect to Plaintiffs’ substantive due process claim
based on lack of adequate care and treatment, Plaintiffs’ substantive due process and equal
protection claims based on Missouri’s statutory reimbursement scheme, and Plaintiffs’
alternative disability discrimination claim under the ADA; the motions are GRANTED as
to all other aspects of Plaintiffs’ Fifth Amended Complaint. (Docs. No. 273 & 330.)
_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 17th day of October, 2014.

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