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Karsjens v. Jesson

United States District Court, D. Minnesota

February 20, 2014

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, Plaintiffs,
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Nancy Johnston, Jannine Hé bert, and Ann Zimmerman, in their individual and official capacities, Defendants

Decided February 19, 2014

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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.


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DONOVAN W. FRANK, United States District Judge.



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]


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] 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.)

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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 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 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 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

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sex offender has ever been discharged from MSOP" [9] ( id. ).

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

On November 9, 2012, the Court ordered Commissioner Jesson to create an MSOP Program Evaluation Team (" MPET" or the " Evaluation Team" ) to " review the 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

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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 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 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

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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 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 Hé bert; and (13) Tortious Interference with Contract and Intentional Violation of Minn. Stat. § 253B.03, subd. 7 by Defendants Jesson, Benson, Moser, Lundquist, Johnston, and Hé bert. (Second Am. Compl. ¶ ¶ 211-325.)

Defendants now move to dismiss, and Plaintiffs seek various forms of injunctive and declaratory relief.


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.)

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 A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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

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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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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.

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 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, 110 S.Ct. 975,

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108 L.Ed.2d 100 (1990) (internal quotation omitted); see also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (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 confinement. See Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 77 L.Ed.2d 694 (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, 116 S.Ct. 1373, 134 L.Ed.2d 498 (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 'narrowly tailored to serve a compelling state interest'" ) (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (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, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (Kennedy, J., concurring) (citing Addington v. Texas, 441 U.S. 418, 426-27, 99 S.Ct. 1804, 60 L.Ed.2d 323 (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,

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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, 121 S.Ct. 727, 148 L.Ed.2d 734 (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, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (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" ) (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, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992); Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (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. 11 & 12 (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 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

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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, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975)). " Even if the initial commitment was permissible," a civil commitment may not " constitutionally 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, 121 S.Ct. 727, 148 L.Ed.2d 734 (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 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

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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]

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 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 *84.

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

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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]

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.) Rather than progressing through the phases of treatment, Plaintiffs allegedly remain " in the

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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 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 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

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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 ...

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