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Karsjens v. Jesson

United States District Court, D. Minnesota

February 2, 2015

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,
v.
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Nancy Johnston, Jannine Hebert, and Ann Zimmerman, in their official capacities, Defendants.

Daniel E. Gustafson, Esq., Karla M. Gluek, Esq., David A. Goodwin, Esq., and Raina Borrelli, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.

Nathan A. Brennaman, Scott H. Ikeda, Adam H. Welle, and Aaron Winter, Assistant Attorneys General, Minnesota Attorney General's Office, counsel for Defendants.

MEMORANDUM OPINION AND ORDER

DONOVAN W. FRANK, District Judge.

INTRODUCTION

This matter is before the Court on Defendants' Partial Motion to Dismiss the Third Amended Complaint (Doc. No. 651) and Defendants' Motion for Summary Judgment (Doc. No. 719). For the reasons set forth below, the Court denies both motions.[1]

BACKGROUND

I. The Minnesota Sex Offender Program

Under the Minnesota Commitment and Treatment Act: Sexually Dangerous Persons and Sexual Psychopathic Personalities ("the MCTA"), an individual who is determined by a court to be a "sexually dangerous person"[2] ("SDP") or to have a "sexual psychopathic personality"[3] ("SPP") is committed to a "secure treatment facility, "[4] unless a less restrictive program meets treatment and public safety requirements. See Minn. Stat. § 253D.07, subd. 3. Pursuant to the MCTA, persons committed as an SDP or SPP are placed in the Minnesota Sex Offender Program ("MSOP"), which was established under the purview of the Commissioner of Human Services to "provide specialized sex offender assessment, diagnosis, care, treatment, supervision, and other services to civilly committed sex offenders." See Minn. Stat. § 246B.02.

MSOP, which operates facilities in Moose Lake and St. Peter, Minnesota, offers residents sex offender treatment in a three-phase program of indeterminate length.[5] ( See Doc. No. 726 ("Hebert Aff.") ¶ 23; 706 Report at 5, 30-31, 59-60; Doc. No. 757 ("Gustafson Decl.") ¶ 4, Ex. 2 ("Richardson Dep.") at 10.) All residents start the treatment program in Phase One.[6] ( See Gustafson Decl. ¶ 5, Ex. 3 ("Puffer Dep.") at 21.) In Phase One, residents are introduced to treatment concepts and self-management, with an emphasis on behavioral control.[7] ( See Hebert Aff. ¶¶ 33, 38; 706 Report at 30.) During Phase Two, residents work to understand triggers to their sexual abuse offenses and develop strategies to identify and manage the thinking errors that contribute to problem activities. ( See Hebert Aff. ¶¶ 47-50; 706 Report at 30.) Phase Three focuses on community reintegration and is designed to gradually expose residents to new environments through community activities and interactions. ( See Hebert Aff. ¶¶ 55-58; 706 Report at 31; Puffer Dep. at 14.) Residents must meet the requirements of each phase to progress through the treatment program. ( See Doc. No. 294, Attach. 1 ("MPET Report") at 4-5; Puffer Dep. at 22.) MSOP does not recommend any discharges without completion of the three-phase treatment program. ( See OLA Report at 12, 32-33, 100; Gustafson Decl. ¶ 15, Ex. 13 ("Carabello Dep.") at 28.)

MSOP conducts quarterly and annual treatment progress reviews for each resident. ( See Hebert Aff. ¶¶ 25, 59, 62, 65; 706 Report at 32-33; Gustafson Decl. ¶ 7, Ex. 5 ("Johnston Dep.") at 13.) MSOP only conducts risk assessments for residents petitioning for discharge or transfer to a less restrictive setting.[8] ( See Hebert Aff. ¶ 92; 706 Report at 33; Gustafson Decl. ¶ 6, Ex. 4 ("Hebert Dep.") at 34; Gustafson Decl. ¶ 12, Ex. 10 ("Elsen Dep.") at 13-14.) A special review board and a judicial appeal panel evaluate the risk assessments in order to determine whether a given resident should remain committed in a secure facility. ( See Hebert Aff. ¶¶ 62, 95, 102; Johnston Dep. at 35.)

MSOP has enacted a variety of policies and procedures to assist with implementing the complexities and nuances of the program. These policies and procedures were promulgated by the Commissioner of Human Services pursuant to the MCTA's legislative directive to "adopt rules to govern the operation, maintenance, and licensure" of secure treatment facilities operated by MSOP for a person committed as an SPP or SDP. See Minn. Stat. § 246B.04, subd. 1. Such policies include, for example, the Client Mail Policy (Johnston Aff. ¶ 29, Ex. 8) and the Use of Force and Restraints Policy (Johnston Aff. ¶ 32, Ex. 12).

Since the creation of MSOP in 1994, the number of civilly committed sex offenders has grown significantly. Currently, 721 individuals are committed in the Minnesota Sex Offender Program (MSOP).[9] (706 Report at 10.) In 1990, there were less than 30 civilly committed sex offenders in Minnesota; by 2000, there were 149 sex offenders in MSOP; by 2010, there were 575 sex offenders in MSOP;[10] and the state projects that the number of civilly committed sex offenders will grow to 1, 215 by 2022. ( See OLA Report at 15-16.) This rapid growth in the number of confined sex offenders is due in part to the fact that no civilly committed sex offender has ever been fully discharged from MSOP since the program began twenty-one years ago.[11] (Doc. No. 724 ("Brennaman Aff.") ¶ 22, Ex. 21 ("Rybroek Report") at 104-05; OLA Report at 3, 9, 31; 706 Report at 38, 44, 75.)

As the OLA Report notes, civil commitment in secure facilities is costly. The Minnesota Department of Human Services (DHS) spends $120, 000 per year to house and treat a civilly committed sex offender in a secure facility. (OLA Report at 13.) The cost is approximately three times the cost of incarcerating inmates at Minnesota's correctional facilities. ( Id. ) According to Defendants, the average annual cost per MSOP resident for 2014 was $116, 070. (Gustafson Decl. ¶ 17, Ex. 15 ("Defs.' Answer to Plfs.' Requests for Admission"), at 95.)

II. Procedural History

On December 21, 2011, Plaintiffs, all civilly committed at the MSOP Moose Lake facility, filed a 42 U.S.C. § 1983 complaint against various state employees[12] for violations of their constitutional and statutory rights. ( See Doc. No. 1 ("Compl.").) In their Complaint, Plaintiffs identify numerous policies, procedures, and conditions of confinement that they claim, when considered cumulatively and in context, violate their constitutional rights. ( See generally id. ) Plaintiffs filed an Amended Complaint on March 15, 2012. ( See Doc. No. 151 ("Am. Compl.").)

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. (Doc. No. 203 at 11.) The class consists of "[a]ll patients currently civilly committed" to MSOP (together, "Plaintiffs" or the "Class Members"). ( Id. ) The Court appointed the fourteen named Plaintiffs to serve as class representatives. ( Id. at 12.)

On August 15, 2012, the Court ordered the Commissioner of the Department of Human Services ("DHS"), Lucinda Jesson, to 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 https://edocs.dhs.state.mn.us/lfserver/Public/DHS-6641B-ENG.)

On November 9, 2012, the Court ordered Commissioner Jesson to create a MSOP Program Evaluation Team ("MPET") 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 at 3.) MPET was further assigned to determine "the need, scope, and frequency of any future MSOP treatment program evaluation." ( Id. at 5.) The Court appointed five individuals to serve as MPET members on December 13, 2012. (Doc. No. 281 at 2.) MPET filed its report with the Court on April 26, 2013. ( See MPET Report.)

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 ("Request for Proposals").)

On August 8, 2013, Plaintiffs filed a Second Amended Complaint. ( See Doc. No. 301 ("Second Am. Compl.").)

On September 12, 2013, in a letter to state legislators, Commissioner Jesson identified "a small group of [MSOP] clients who are low functioning and could be transferred to an existing DHS site" in Cambridge, Minnesota in 2014. ( See Doc. No. 341 at 2.)[13]

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.") ¶ 4, Ex. B, at 2-3; Jesson Aff. ¶ 19, Ex. D, at 2-3.)

On November 19, 2013, Defendants moved to dismiss Plaintiffs' Second Amended Complaint. (Doc. No. 347.) The Court denied Defendants' motion to dismiss except with respect to Plaintiffs' equal protection claim, which was dismissed. (Doc. No. 427.)

On December 6, 2013, the Court appointed four experts pursuant to Rule 706 of the Federal Rules of Evidence ("706 Experts"). ( See Doc. No. 393 at 1-2.) The parties submitted their respective proposals regarding the scope of the experts' work. ( See Doc. No. 421.) On January 22, 2014, the Court met with the 706 Experts, and on February 5, 2014, the Court received their proposed plan of action. (Doc. No. 422.) After months of research and analysis, the 706 Experts presented the Court with their report and recommendations ("706 Report"), which contains over 100 pages of their findings and opinions regarding MSOP. ( See generally 706 Report.)

On October 28, 2014, Plaintiffs filed a Third Amended Complaint. ( See Doc. No. 635.) In their Third Amended Complaint, Plaintiffs raise several challenges to MSOP and the MCTA. ( See id. ) Specifically, Plaintiffs assert the following thirteen claims: (I) Minnesota Statute § 253D is facially unconstitutional; (II) Minnesota Statute § 253D is unconstitutional as applied; (III) Defendants have failed to provide treatment in violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution; (IV) Defendants have failed to provide treatment in violation of the MCTA; (V) Defendants have denied Plaintiffs the right to be free from punishment in violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution; (VI) Defendants have denied Plaintiffs the right to less restrictive alternative confinement in violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution; (VII) Defendants have denied Plaintiffs the right to be free from inhumane treatment in violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution; (VIII) Defendants have denied Plaintiffs the right to religion and religious freedom in violation of the First and Fourteenth Amendments to the United States Constitution; (IX) Defendants have unreasonably restricted free speech and free association in violation of the First Amendment to the United States Constitution and the Minnesota Constitution; (X) Defendants have conducted unreasonable searches and seizures in violation of the Fourth Amendment to the United States Constitution and the Minnesota Constitution; (XI) Defendants have violated court ordered treatment; (XII) Defendants Jesson, Benson, Moser, Lundquist, Johnston, and Hebert have breached Plaintiffs' contractual rights; and (XIII) Defendants Jesson, Benson, Moser, Lundquist, Johnston, and Hebert have tortiously interfered with contractual rights and have intentionally violated Minn. Stat. § 253B.03, subd. 7. ( Id. at 59-84.) Plaintiffs seek declarative and injunctive relief on behalf of the Class. ( Id. at 85 ("Prayer for Relief").)

Defendants now move for dismissal of Counts I and II and for summary judgment with respect to all counts. ( See Doc. No. 651; Doc. No. 719.)

DISCUSSION

I. Partial Motion to ...


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