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

Filing 786

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the Courts December 22, 2015 Amended Memorandum Opinion (ECF No. 501 ) is VACATED in part, to the extent that it granted Plaintiffs claims in part, and Plaintiffs claims are hereby DENIED. Signed by District Judge Audrey G. Fleissig on 07/06/2017. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOHN VAN ORDEN, et al.,
Plaintiffs,
v.
JEFF STRINGER, et al.,
Defendants.

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Case No. 4:09CV00971 AGF

MEMORANDUM AND ORDER
This matter is before the Court upon review of the parties’ briefs, invited by the
Court, as to whether the Court should reconsider its December 22, 2015 Amended
Memorandum Opinion on liability (“Liability Opinion”) in light of the United States Court
of Appeals for the Eighth Circuit’s decision in Karsjens v. Piper, 845 F.3d 394 (8th Cir.
2017).1 At the request of Plaintiffs, the Court held oral argument on this issue on June 23,
2017.
In its Liability Opinion, the Court found that Missouri’s civil commitment statute for
sexually violent predators (“SVP Act”), Mo. Rev. Stat. §§ 632.480-632.525, was
unconstitutional as applied to the Missouri Department of Mental Health’s (“DMH”) Sex
Offender Rehabilitation and Treatment Services (“SORTS”) facilities. In Karsjens, the
Eighth Circuit rejected a substantially similar challenge to the SVP civil commitment statute
1

The Eighth Circuit denied the plaintiffs’ petition for rehearing en banc in Karsjens on
February 22, 2017, and on May 19, 2017, the plaintiffs filed a petition for writ of certiorari
in the United States Supreme Court.

and treatment program in Minnesota. With some reluctance, in light of the extensive
proceedings to date, the Court finds that Karsjens compels reconsideration of the Liability
Opinion and entry of judgment in favor of Defendants, as Defendants request in their brief.
BACKGROUND
The approximately 225 Plaintiffs in this class action are civilly committed residents
of SORTS, who have been declared sexually violent predators under Missouri’s SVP Act.
Plaintiffs filed suit under 42 U.S.C. § 1983, and named as Defendants various executives
and employees of SORTS and the DMH, solely in their official capacities. In their Fifth
Amended Complaint, Plaintiffs asserted that the SVP Act was unconstitutional as written
and as applied to SORTS, and that the reimbursement sought by the state from SORTS
residents was also unconstitutional.2
On September 30, 2011, the Court certified this case as a class action under Federal
Rule of Civil Procedure 23(b)(2). After extensive informal and formal discovery, the Court,
on December 19, 2014, granted Plaintiffs’ uncontested motion to bifurcate the trial into two
phases: liability and remedy. ECF No. 358. The Court held an eight-day bench trial on the
issue of liability only, beginning on April 21, 2015.
The only claims remaining for trial were that the SVP Act on its face and as applied
to SORTS, as well as the reimbursement sought by the state from SORTS residents, violated
Plaintiffs’ substantive due process rights. In their as-applied challenge to the SVP Act,

2

In this lawsuit, Plaintiffs did not challenge their initial commitment. However, the
Court notes that on June 27, 2017, the Supreme Court of Missouri reviewed the civil
commitment process under the SVP Act and held, as it has previously, that the commitment
process is constitutional. Matter of Care & Treatment of Kirk v. State, No. SC 95752, 2017
WL 2774419, at *2 (Mo. June 27, 2017).
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Plaintiffs claimed that (1) particular modalities of treatment at SORTS were inadequate due
to staff and funding shortages, and (2) the entire SORTS treatment program was a sham
because, in its 16 years of operation, SORTS had neither established the risk assessment and
release procedures contemplated by the SVP Act, nor successfully treated and released any
residents back into the community following such treatment.
In its Liability Opinion, the Court denied relief on Plaintiffs’ facial challenge to the
SVP Act, Plaintiffs’ claim challenging the state’s reimbursement scheme, and Plaintiffs’ asapplied challenge regarding the adequacy of SORTS’ treatment modalities. However, the
Court concluded that the SVP Act was unconstitutional as applied to SORTS with respect to
certain discrete aspects of risk assessment and release.
The first constitutional deficiency the Court found was the manner in which
Defendants conducted annual assessments of the mental condition of Plaintiffs, known as
“annual reviews.” The evidence at trial showed that annual reviews were the primary tool
that the state courts used to evaluate whether a civilly committed person continued to satisfy
the statutory criteria for commitment. The Court concluded that SORTS officials
responsible for conducting annual reviews were not consistently applying the correct legal
standard for evaluating Plaintiffs’ risk level under the statutory criteria. The Court held that
the improper application of the annual review mechanism contributed to the continued
confinement of Plaintiffs beyond the time constitutionally justified. ECF No. 501 at 53-54.
The second constitutional deficiency the Court found was with respect to the release
portion of the SORTS treatment program and the lack of any community reintegration
program. The Court concluded that Defendants’ stated goal of treating and safely

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reintegrating Plaintiffs back into the community was observed in theory but not in practice,
and that the release portion of SORTS was a sham. Id. at 54-55. In particular, the Court
found that SORTS undisputedly had residents who, because of their age and physical
infirmity or because of their treatment progress, had reduced their risk below the standard
required for commitment, but that Defendants consistently opposed the release of such
residents and had not designed any procedures for their community reintegration.
The final constitutional deficiency the Court found was with respect to the release
procedures at SORTS. The Court concluded that the Director of the DMH had effectively
abdicated his statutory duty under Mo. Rev. Stat. § 632.501, which provides that “[i]f the
director of the [DMH] determines that the person’s mental abnormality has so changed that
the person is not likely to commit acts of sexual violence if released,3 the director shall
authorize the person to petition the court for release.”4 The Court found that the Director
had not authorized a single person committed under the SVP Act to petition for conditional
release, and that Defendants were instead stalling or blocking Director authorization even
3

As explained in the Court’s Liability Opinion, the Missouri Supreme Court has
interpreted this language to permit civil commitment only if a person is “both dangerous and
has some mental illness or abnormality,” and to require release if a resident “can
demonstrate that he is no longer likely to commit sexually violent offenses, . . . regardless of
whether the reason he is no longer dangerous is primarily mental or physical.” In re Care &
Treatment of Coffman, 225 S.W.3d 439, 446 (Mo. 2007).
4

As explained in the Court’s Liability Opinion, petitions filed without the Director’s
authorization are subject to heightened requirements, including a frivolity review. See Mo.
Rev. Stat. § 632.504 (“Upon receipt of a first or subsequent petition from committed
persons without the director’s approval, the court shall endeavor whenever possible to
review the petition and determine if the petition is based on frivolous grounds and if so shall
deny the petition without a hearing.”). Moreover, if a petition filed without the Director’s
authorization has been found to be frivolous or has been previously denied, the court must
deny any subsequent petition “unless the petition contains facts upon which a court could
find the condition of the petitioner had so changed that a hearing was warranted.” Id.
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when SORTS treatment providers and annual reviewers concluded that a resident qualified
for conditional release.
In arriving at these conclusions, the Court held that the standard of review for a
substantive due process challenge to civil commitment statutes was not strict scrutiny, as
Plaintiffs advocated. Rather, the Court applied the standard set forth by the United States
Supreme Court in Jackson v. Indiana, 406 U.S. 715, 738 (1972), which held that “[a]t the
least, due process requires that the nature and duration of commitment bear some reasonable
relation to the purpose for which the individual is committed.” Jackson v. Indiana, 406 U.S.
715, 738 (1972). Moreover, to the extent that Plaintiffs’ as-applied claim required a further
finding that the constitutional violation was conscience-shocking, as Defendants had argued,
the Court found that Defendants’ conduct with respect to risk assessment and release as
described above did indeed shock the conscience. ECF No. 501 at 57.
The Court held that Plaintiffs’ prayers for injunctive relief with respect to the
constitutional violation found by the Court would be addressed in a second phase of trial,
the “Remedies Phase,” initially set for March 30, 2016. However, before trial was held in
the Remedies Phase, the parties jointly moved to stay all proceedings in order to engage in
settlement negotiations. After extensive negotiations with the assistance of Retired United
States Magistrate Judge Mary Ann Medler, a proposed settlement was reached.
Approximately 175 of the 225 of the class members (more than 75% of the class),
including all of the class representatives, objected to the proposed settlement and were
represented by appointed counsel. Although the Court permitted class members to file
letters in support of the proposed settlement, only one class member did so. The objectors,

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through appointed counsel, stated in their briefs and at a fairness hearing before this Court
that they understood that the proposed settlement would eliminate the significant risk
associated with an appeal of this case, and/or of an adverse decision in the then-pending
appeal of Karsjens. But the objectors nevertheless opposed the settlement because it did not
fully address the violations found in the Court’s Liability Opinion. On November 23, 2016,
after careful consideration of the settlement’s terms and objections thereto, the Court denied
the motion to approve the proposed settlement. The Remedies Phase trial was thereafter
scheduled for June 12, 2017.
Meanwhile, on January 3, 2017, the Eighth Circuit issued its opinion in Karsjens.
The district court in Karsjens had found that the Minnesota civil commitment statute was
unconstitutional on its face and as applied, and applied strict scrutiny to both types of
claims. Karsjens v. Jesson, 109 F. Supp. 3d 1139, 1166, 1170 (D. Minn. 2015). The district
court concluded that the statute was facially unconstitutional in a number of respects
primarily related to deficiencies in risk assessment and release procedures, which the court
found authorized “prolonged commitment, even after committed individuals no longer pose
a danger to the public,” and “result[ed] in a punitive effect and application contrary to the
purpose of civil commitment.” Id. at 1168-70.
The district court in Karsjens also concluded that the statute was unconstitutional as
applied to Minnesota’s treatment program (“MSOP”) for reasons again largely related to
risk assessment and release, and which also resulted in the plaintiffs “being confined to
MSOP beyond such a time as they either meet the statutory reduction in custody criteria or
no longer satisfy the constitutional threshold for continued commitment.” Id.at 1170.

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In its findings of fact, the district court specifically found that “MSOP knows that
there are Class Members who meet the reduction in custody criteria or who no longer meet
the commitment criteria but who continue to be confined at the MSOP,” and that “[d]espite
its knowledge that individuals have met the criteria for release, the MSOP has never
petitioned on behalf of a committed individual for full discharge.” Id. at 1164. The district
court then concluded that the Minnesota statute was unconstitutional as applied for the
following reasons:
Defendants do not conduct periodic, independent risk assessments or
otherwise evaluate whether an individual continues to meet the initial
commitment criteria or the discharge criteria if an individual does not file a
petition; (2) those risk assessments that have been performed have not all been
performed in a constitutional manner; (3) individuals have remained confined
at the MSOP even though they have completed treatment or sufficiently
reduced their risk; (4) discharge procedures are not working properly at the
MSOP; (5) although section 253D [of the Minnesota statute] expressly allows
the referral of committed individuals to less restrictive alternatives, this is not
occurring in practice because there are insufficient less restrictive alternatives
available for transfer and no less restrictive alternatives available for initial
commitment; and (6) although treatment has been made available, the
treatment program’s structure has been an institutional failure and there is no
meaningful relationship between the treatment program and an end to
indefinite detention.
Id.at 1173-74. As with the facial violation, the district found that the as-applied
constitutional violation resulted in “a punitive effect and application contrary to the purpose
of civil commitment.” Id. at 1174. The district court entered injunctive relief to remedy
these deficiencies.
The Eighth Circuit reversed. In doing so, the Eighth Circuit first held that the district
court applied the wrong standard of scrutiny to the plaintiffs’ facial and as-applied
substantive due process claims. Karsjens, 845 F.3d at 407. In particular, the Eighth Circuit

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held that “[a]lthough the Supreme Court has characterized civil commitment as a significant
deprivation of liberty, it has never declared that persons who pose a significant danger to
themselves or others possess a fundamental liberty interest in freedom from physical
restraint.” Id. (citing Addington v. Texas, 441 U.S. 418, 425 (1979) and Foucha v.
Louisiana, 504 U.S. 71, 116 (1992) (Thomas, J., dissenting)).
The Eighth Circuit relied on Jackson v. Indiana’s “reasonable relation” test, as did
this Court, and held that the proper standard of scrutiny to be applied to the plaintiffs’ facial
due process challenge was whether the statute “bears a rational relationship to a legitimate
government purpose.” Id. at 407-08. The Eighth Circuit concluded that the Minnesota
statute, on its face, survived this highly deferential reasonable relationship review. Id. at
409.
With respect to the as-applied challenge, the Eighth Circuit held that the proper
standard was to require the plaintiffs to demonstrate “both that the state defendants’ conduct
was conscience-shocking, and that the state defendants violated one or more fundamental
rights that are deeply rooted in this Nation’s history and tradition, and implicit in the
concept of ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed.” Id. at 408 (quoting Moran v. Clarke, 296 F.3d 638, 651 (8th Cir. 2002) (en
banc) (Bye, J., concurring and writing for a majority on this issue)). To shock the
conscience, the Eighth Circuit held that “the alleged substantive due process violations must
involve conduct so severe[,] so disproportionate to the need presented, and so inspired by
malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a
brutal and inhumane abuse of official power literally shocking to the conscience.” Id.

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(citing Moran, 296 F.3d at 647 (quoting In re Scott Cty. Master Docket, 672 F. Supp. 1152,
1166 (D. Minn. 1987)).
The Eighth Circuit held that the grounds upon which the district court relied in
finding an as-applied due process violation could not satisfy the conjunctive standard
applicable to such a claim. Accordingly, the Eighth Circuit denied relief on the as-applied
claim. Id. at 410-411.
In their briefs now before the Court, the parties dispute the effect Karsjens has on this
Court’s finding of liability with respect to Plaintiff’s as-applied claim challenging riskassessment and release.5 Plaintiffs assert that Karsjens has no effect on the Court’s Liability
Opinion because the Court found that Defendants’ conduct was conscience-shocking.
Plaintiffs characterize the Eighth Circuit’s statement that as-applied substantive due process
claims require both a violation of a fundamental liberty interest and conscience-shocking
conduct as dicta. In any event, Plaintiffs argue that Karsjens did not foreclose a finding that
“the use of lifetime, punitive detention” implicates a fundamental liberty interest. ECF No.
764 at 8-9.
At oral argument, Plaintiffs also insisted that the Court is free to disregard the Eighth
Circuit’s conclusion that the Minnesota defendants’ conduct did not shock the conscience.
According to Plaintiffs, the Eighth Circuit’s decision in this respect was contrary to the
United States Supreme Court’s decisions in County of Sacramento v. Lewis, 523 U.S. 833
(1998) and other cases, because the Eighth Circuit appeared to incorporate an intent-to-harm

5

The parties agree that Karsjens does not affect the Court’s denial of relief on
Plaintiffs’ remaining claims, including Plaintiffs’ facial challenge.
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requirement into the shocks-the-conscience standard, notwithstanding that the state
defendants had time to deliberate prior to taking action.
Defendants argue that Karsjens compels reconsideration of the Liability Opinion to
the extent it granted relief on Plaintiffs’ as-applied claim. Defendants argue that under
Karsjens, Plaintiffs’ as-applied claim is subject to a conjunctive standard requiring conduct
that both violates a fundamental liberty interest and shocks the conscience. Defendants
contend that, like the Minnesota plaintiffs in Karsjens, Plaintiffs here cannot satisfy the first
prong because “the Eighth Circuit held that persons committed pursuant to sexually-violent
predator statutes do not possess a fundamental liberty interest in being free of confinement.”
ECF No. 765 at 14. Defendants insisted at oral argument that, in light of this holding, even
if the state defendants continued to confine civilly committed individuals whom the
defendants knew were no longer mentally ill or dangerous, such conduct would not give rise
to a substantive due process violation. Rather, Defendants argued, such civilly committed
individuals would have to seek relief in the state courts using the procedures available under
the state civil commitment statute or assert that such procedures are insufficient in terms of
procedural due process.
Defendants further argue that even if a fundamental liberty interest were at stake, the
Liability Opinion’s findings with respect to risk-assessment and release “mirror closely the
putative deficiencies in the Minnesota program that the Eighth Circuit held to be
categorically insufficient to satisfy the conscience-shocking test.” Id. at 17-18. At oral
argument, Defendants maintained that the Eighth Circuit’s holding with respect to the
shocks-the-conscience test is consistent with prior Eighth Circuit precedent and is binding

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on this Court. For these reasons, Defendants argue that the Court should reconsider the
Liability Opinion and enter judgment in favor of Defendants.
DISCUSSION
A “district court has the inherent power to reconsider and modify an interlocutory
order any time prior to the entry of judgment.” K.C.1986 Ltd. P’ship v. Reade Mfg., 472
F.3d 1009, 1017 (8th Cir. 2007). In particular, reconsideration may be justified in light of
an intervening development in the controlling law. See Westinghouse Elec. Co. v. United
States, No. 4:03CV861 CDP, 2009 WL 881605, at *4 (E.D. Mo. Mar. 30, 2009); see also
Conrod v. Davis, 120 F.3d 92, 95 (8th Cir. 1997) (“Where the district court believes that an
earlier decision was reached in error, it may revisit the decision to avoid later reversal.”)
(citation omitted).
The Court believes that reconsideration is required here in light of Karsjens. The
Eighth Circuit clearly held that “to maintain an as-applied due process challenge, the class
plaintiffs have the burden of showing the state actors’ actions were conscience-shocking and
violate a fundamental liberty interest.” Karsjens, 845 F.3d at 410 (emphasis added).6 The
Eighth Circuit further held that claims substantially similar to the ones alleged here do not

6

As Plaintiffs note, other circuits have appeared to treat the test as disjunctive. See,
e.g., Pittman v. Cuyahoga Cty. Dep’t of Children & Family Servs., 640 F.3d 716, 728 (6th
Cir. 2011) (“Substantive due process claims may be loosely divided into two categories: (1)
deprivations of a particular constitutional guarantee; and (2) actions that ‘shock the
conscience.’”); Seegmiller v. LaVerkin City, 528 F.3d 762, 768 (10th Cir. 2008) (holding
that “the real issue in substantive due process cases [is]: whether the plaintiff suffered from
governmental action that either (1) infringes upon a fundamental right, or (2) shocks the
conscience,” and that “the ‘shocks the conscience’ and ‘fundamental liberty’ tests are but
two separate approaches to analyzing governmental action under the Fourteenth
Amendment”) (emphasis added).

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implicate a fundamental liberty interest. Although these holdings raise troubling questions
as to whether civil commitment statutes can ever be challenged on as-applied substantive
due process grounds, they are binding on this Court. And they end the Court’s inquiry
because, according to Karsjens, without a fundamental liberty interest, Plaintiffs’ as-applied
claim fails no matter how shocking the state defendants’ conduct.
In any event, the Court cannot distinguish Defendants’ conduct with respect to risk
assessment and release from the conduct of the state defendants in Karsjens, which the
Eighth Circuit definitively held was not conscience-shocking. Applying the standard used
by the Eighth Circuit in Karsjens,7 the Court may have still held that, at the least, continuing
to confine the aged and infirm who are undisputedly no longer dangerous shocks the
conscience. But Karsjens precludes such a holding. There, too, the district court found that
the state defendants continued to confine individuals known to no longer meet the criteria
for commitment, but according to the Eighth Circuit, neither this nor any of the other actions
taken by the state defendants was enough to shock the conscience.
The Supreme Court has held that “substantive due process demands an exact analysis
of circumstances” before determining whether conduct shocks the conscience. Lewis, 523
U.S. at 850. And as Plaintiffs correctly note, in Lewis, relied heavily upon by the Eighth
Circuit in Karsjens, the Supreme Court distinguished circumstances in which “actual
deliberation is practical,” such as a “custodial prison situation,” from those in which
“decisions [are] necessarily made in haste, under pressure, and frequently without the luxury

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In finding Defendants’ conduct conscience-shocking in its Liability Opinion, the
Court, under Lewis, 523 U.S. at 850, did not assume the standard required malice or intent
to harm.
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of a second change,” such as a prison riot or high-speed chase. Id. at 852-53. The Supreme
Court held that, in the former circumstance, “deliberate indifference can rise to a
constitutionally shocking level,” whereas in the latter, a “purpose to cause harm” is needed
to shock the conscience. Id. at 852-53.
The Karsjens opinion did not discuss this distinction when determining that the
Minnesota defendants’ conduct with respect to risk assessment and release of civilly
committed individuals did not shock the conscience. Id. at 411. Nevertheless, the opinion
“is controlling until overruled by [the Eighth Circuit] en banc, by the Supreme Court, or by
Congress.” M.M. ex rel. L.R. v. Special Sch. Dist. No. 1, 512 F.3d 455, 459 (8th Cir. 2008).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the Court’s December 22, 2015 Amended
Memorandum Opinion (ECF No. 501) is VACATED in part, to the extent that it granted
Plaintiffs’ claims in part, and Plaintiffs’ claims are hereby DENIED.
All claims against all parties having been resolved, a separate Judgment shall
accompany this Memorandum and Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 6th day of July, 2017.

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