Karsjens v. Jesson, Civil No. 11–3659 (DWF/JJK).

• Decision Date: 20 February 2014
• Docket Number: Civil No. 11–3659 (DWF/JJK).
• Citation: 6 F.Supp.3d 916
• Parties: 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 Hébert, and Ann Zimmerman, in their individual and official capacities, Defendants.
• Court: U.S. District Court — District of Minnesota

6 F.Supp.3d 916

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 Hébert, and Ann Zimmerman, in their individual and official capacities, Defendants.

Civil No. 11–3659 (DWF/JJK).

United States District Court, D. Minnesota.

Feb. 20, 2014.

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.

MEMORANDUM OPINION AND ORDER

DONOVAN W. FRANK, District Judge.

INTRODUCTION

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

BACKGROUND

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.⁴See id.; (Second Am. Compl. ¶ 65.)

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 http:// www. auditor. leg. state. mn. us/ ped/ pedrep/ ccso. pdf.) 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 committedsex 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”). 283 F.R.D. 514, 520 (D.Minn.2012). The Court appointed the fourteen named Plaintiffs to serve as class representatives. (Id. at 520.)

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 https:// edocs. dhs. state. mn. us/ lfserver/ Public/ DHS– 6641 B– ENG.).

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 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 Violationof 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...