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Willis v. Palmer

United States District Court, N.D. Iowa, Western Division

August 17, 2018

DAMON WILLIS, CALVIN MATLOCK, HAROLD D. WILLIAMS, DAVE L. TAFT, JR., PAUL HUSTON, SYVENO J. WRIGHT, EDDIE C. RISDAL, DONALD E. PHILLIPS, and MICHAEL MILLSAP, Plaintiffs,
v.
CHARLES PALMER and CORY TURNER, Defendants.

          OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          MARK W. BENNETT, U.S. DISTRICT COURT JUDGE

         TABLE OF CONTENTS

         I. INTRODUCTION ........................................................................... 2

         II. PROCEDURAL HISTORY ............................................................... 2

         III. THE KARSJENS DECISION ........................................................... 4

         IV. FACTUAL FINDINGS .................................................................. 17

         A. Dr. Wilson's Report .............................................................. 17

         B. Dr. Schlank's Report ............................................................ 31

         V. ANAYLSIS ................................................................................. 35

         A. The Parties' Arguments ......................................................... 35

         B. As Applied Due Process Challenge in light of Karsjens .................. 37

         1. Fundamental Liberty Interest .......................................... 37

         2. Shocks the Conscience .................................................. 41

         C. Whether CCUSO is Punitive and the Least Restrictive Alternative .......................................................................... 48

         VI. CONCLUSION ............................................................................ 50

         I. INTRODUCTION

         In this case, plaintiffs, civilly detained patients at Iowa's Civil Commitment Unit for Sexual Offenders (CCUSO), argue that their civil rights have been violated and bring suit pursuant to 42 U.S.C. § 1983. The case is once again before me on a second Motion for Summary Judgment (docket no. 127) filed by the defendants. For the reasons set out below, principally further factual development in the record and new case law from the Eighth Circuit Court of Appeals, I find that the Motion should be granted.

         II. PROCEDURAL HISTORY

         As the parties are aware, I granted in part and denied in part defendants' first Motion for Summary Judgment on March 30, 2016. (docket no. 81). In that order, I set out the complicated history of this case up to that point. Accordingly, I now review only subsequent developments in the case.

         In my ruling on the defendant's first Motion for Summary Judgment, I granted defendants' motion on two claims. First, I dismissed plaintiffs' contract claims. (docket no. 81, p. 54). Second, I granted defendants' motion that they were entitled to qualified immunity. (docket no. 81, p. 51). Accordingly, I dismissed plaintiffs' claims for money damages. However, I denied defendants' motion that plaintiffs' claims were barred by the doctrines set out in Younger v. Harris, 401 U.S. 37 (1971), Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) or Heck v. Humphrey, 512 U.S. 477 (1994). (docket no. 81, p. 20-35). Additionally, I denied defendants' motion on three of plaintiffs' claims for injunctive relief. The remaining claims are:

1) does CCUSO's treatment program violate the constitutional “shock the conscience” standard; 2) is CCUSO's application of Iowa Code § 229(A) punitive; and 3) are the procedures at CCUSO the least restrictive alternative for committing sexual offenders. . .

(docket no. 91, p. 8-10).

         Following my ruling on summary judgment, defendants filed a limited motion to reconsider, arguing that certain defendants should be dismissed from the case. (docket no. 82). However, the issues raised in that motion were resolved when plaintiffs filed a Second Amended Complaint. (docket no. 89). Pursuant to that Second Amended Complaint, the plaintiffs voluntarily dismissed all defendants other than Charles Palmer and Cory Turner. Additionally, the plaintiffs reframed their claims in light of my earlier ruling.

         Following a status conference with the parties, I became concerned about the complex issues remaining in the case and the lack of expert testimony. Accordingly, I raised the issue of the court appointing its own expert witness. (docket no. 91). On June 20, 2016, I entered an order directing the parties to jointly nominate potential expert witnesses to be appointed by the court pursuant to Federal Rule of Evidence 706. (docket no. 95). The defendants filed a notice of appeal shortly thereafter, challenging both the appointment of an expert and the manner in which I had proposed the expert be compensated. (docket no. 98). The defendants then filed a motion to stay the case, including all deadlines, pending the appeal. (docket no. 104). I granted the defendants' motion and instructed the parties to submit a new scheduling plan within seven days after disposition of that appeal. On January 4, 2017, the Eighth Circuit Court of Appeals dismissed defendant's appeal for lack of jurisdiction and instructed me to reevaluate the issue in light of the decision in Karsjens v. Piper, 845 F.3d 394, 398 (8th Cir.), cert. denied, 138 S.Ct. 106, 199 L.Ed.2d 185 (2017). (docket no. 107).

         On January 23, 2017, I, along with Chief Magistrate Judge C.J. Williams, held a telephonic conference with counsel regarding scheduling issues. During that conference, I informed the parties that the court would pay for the Rule 706 expert out of the court's own funds. I also informed the parties that I would allow the defendants to file a renewed motion for summary judgment after the Rule 706 expert's report had been filed and the parties' experts had been designated. Following the status conference, Judge Williams issued a series of orders directing the nomination of an expert witness. On April 25, 2017, Judge Williams reviewed the nominees and decided to appoint Dr. Robin J. Wilson as the court's Rule 706 expert. (docket no. 114). Shortly thereafter, Judge Williams entered an order (docket no. 115) setting May 1, 2018, as the new deadline for filing dispositive motions.

         Dr. Wilson submitted his report on October 10, 2017. (docket no. 117). Defendants filed the present second Motion for Summary Judgment (docket no. 127) on April 25, 2018. Included in defendants' Appendix (docket no. 129-1) was an expert report from Dr. Anita Schlank. The plaintiffs filed a resistance (docket no. 134) on May 25, 2018. Defendants then filed a reply (docket no. 135) on June 1, 2018.[1]

         III. THE KARSJENS DECISION

         In my ruling on defendants' first Motion for Summary Judgment, I set out the relevant summary judgment standards and need not repeat them here. I also discussed both the applicable Supreme Court precedent and the controlling portions of the Iowa Code.[2] Similarly, I set out the important Eighth Circuit cases related to due process and civil commitment programs.[3] Accordingly, my discussion in this order will focus on the two decisions which were issued since that order which affect my analysis.[4]

         In my previous order, I discussed the then ongoing cases regarding North Dakota, Missouri, and Minnesota's sex offender commitment systems. See Ireland v. Anderson, 2014 WL 3732014 (D. N.D. 2014), Van Orden v. Schafer, 129 F.Supp.3d 839, 841 (E.D. Mo. 2015) and Karsjens v. Jesson, 109 F.Supp.3d 1139, 1144 (D. Minn. 2015). In the latter two cases, federal district courts conducted trials and found that the sex offender civil commitment systems in those states violated patients' due process rights.

         The Karsjens case, from Minnesota, was appealed to the Eighth Circuit Court of Appeals.[5] In 2017, the Eighth Circuit Court of Appeals reversed the district court. In so doing, the Eighth Circuit Court of Appeals first considered the question of whether Heck or one of the related doctrines barred civilly committed plaintiffs from pursuing these types of due process claims in federal court. The Eighth Circuit Court of Appeals found, as I previously did, that those doctrines did not bar suit. Karsjens, 845 F.3d at 405-407.

         The Eighth Circuit Court of Appeals then considered the proper standard in a facial due process challenge.

The United States Constitution guarantees that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The Supreme Court has not expressly identified the proper level of scrutiny to apply when reviewing constitutional challenges to civil commitment statutes.” United States v. Timms, 664 F.3d 436, 445 (4th Cir.), cert. denied, --- U.S. __, 133 S.Ct. 189, 184 L.Ed.2d 237 (2012). However, to date, the strict scrutiny standard applied by the district court is reserved for claims of infringements on “fundamental” liberty interests upon which the government may not infringe “unless the infringement is narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). According to the Supreme Court, “fundamental rights and liberties” are those “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.” Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal citations and quotation marks omitted).
Although the Supreme Court has characterized civil commitment as a “significant deprivation of liberty, ” Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), 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. See Foucha v. Louisiana, 504 U.S. 71, 116, 112 S.Ct. 1780');">112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (Thomas, J., dissenting) (criticizing the majority's analysis of a due process challenge to a civil commitment statute because, “[f]irst, the Court never explains whether we are dealing here with a fundamental right, and ... [s]econd, the Court never discloses what standard of review applies”). Rather, when considering the constitutionality of Kansas's Sexually Violent Predator Act, the Court stated “[a]lthough freedom from physical restraint ‘has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action,' that liberty interest is not absolute.” Kansas v. Hendricks, 521 U.S. 346, 356, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (quoting Foucha, 504 U.S. at 80, 112 S.Ct. 1780');">112 S.Ct. 1780). The Court noted that many states provide for the involuntary civil commitment of people who are unable to control their behavior and pose a threat to public health and safety, and “[i]t thus cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty.” Id. at 357, 117 S.Ct. 2072 (citing Addington, 441 U.S. at 426, 99 S.Ct. 1804). When considering the due process implications of a civil commitment case, the Supreme Court stated “[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, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972) (emphasis added).
Accordingly, the proper standard of scrutiny to be applied to plaintiffs' facial due process challenge is whether MCTA bears a rational relationship to a legitimate government purpose.

Karsjens, 845 F.3d at 407-08. Applying that standard, the Eighth Circuit Court of Appeals found:

The district court announced six grounds upon which MCTA was facially unconstitutional under the strict scrutiny standard-(1) MCTA did not require periodic risk assessments of all committed persons, (2) MCTA did not provide for a judicial bypass mechanism, (3) MCTA rendered discharge from MSOP more onerous than admission because discharge criteria was more stringent than admission criteria, (4) MCTA impermissibly shifted the burden to petition for a reduction in custody to the committed person, (5) MCTA did not provide less restrictive alternatives although the statute indicated such would be available, and (6) MCTA did not require state officials to petition for a reduction in custody on behalf of committed individuals who might qualify for a reduction. As we held above, the appropriate standard is whether MCTA bears a reasonable relationship to a legitimate government purpose. To prevail in a facial challenge, the class plaintiffs bear the burden of “establish[ing] that no set of circumstances exists under which [MCTA] would be valid.” See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). None of the six reasons the district court found MCTA facially unconstitutional under the strict scrutiny review survives the reasonable relationship review.
Reasonable relationship review is highly deferential to the legislature. No. one can reasonably dispute that Minnesota has a real, legitimate interest in protecting its citizens from harm caused by sexually dangerous persons or persons who have a sexual psychopathic personality. See Addington, 441 U.S. at 426, 99 S.Ct. 1804 (“[T]he state ... has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.”). The question then is whether MCTA is reasonably related to this interest. The burden to prove the statute is not rationally related to a legitimate government interest is borne by the class plaintiffs, whereas the burden to show that a statute is narrowly tailored to serve a compelling government interest is borne by the state. See FCC v. Beach Comm'ns, Inc., 508 U.S. 307, 314- 15, 113 S.Ct. 2096, 124 L.Ed.2d (1993) (“On rational-basis review, ... those attacking the rationality of the legislative classification have the burden ‘to negate every conceivable basis which might support it.'” (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973))); Republican Party of Minn. v. White, 416 F.3d 738, 749 (8th Cir. 2005) (“The strict scrutiny test requires the state to show that the law that burdens the protected right advances a compelling state interest and is narrowly tailored to serve that interest.” (citations omitted)).
The Minnesota Supreme Court has had opportunity to consider whether the then-applicable Minnesota commitment statute violated due process. In In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994), that court held, “[s]o long as civil commitment is programmed to provide treatment and periodic review, due process is provided. Minnesota's commitment system provides for periodic review and reevaluation of the need for continued confinement.” The next year, the Minnesota Supreme Court heard Call v. Gomez, 535 N.W.2d 312 (Minn. 1995), and considered a due process challenge to MCTA. Referring back to Blodgett, the court held, “once a person is committed, his or her due process rights are protected through procedural safeguards that include periodic review and re-evaluation, the opportunity to petition for transfer to an open hospital, the opportunity to petition for full discharge, and the right to competent medical care and treatment.” Id. at 318-19.
MCTA is facially constitutional because it is rationally related to Minnesota's legitimate interests. The district court expressed concerns about the lack of periodic risk assessments, the availability of less restrictive alternatives, and the processes for seeking a custody reduction or a release. MCTA provides “proper procedures and evidentiary standards” for a committed person to petition for a reduction in his custody or his release from confinement. See Hendricks, 521 U.S. at 357, 117 S.Ct. 2072. Any committed person can file a petition for reduction in custody. Minn. Stat. Ann. § 253D.27(2). The petition is considered by a special review board consisting of experts in mental illness and at least one attorney. Minn. Stat. Ann. § 253B.18(4c)(a). That panel conducts a hearing and issues a report with recommendations to a judicial appeal panel consisting of Minnesota district judges appointed to the judicial appeal panel by the Chief Justice of the Supreme Court. Minn. Stat. Ann. §§ 253D.27(3)-(4), 253B.19(1). Through this process, the committed person “has the right to be represented by counsel” and the court “shall appoint a qualified attorney to represent the committed person if neither the committed person nor other provide counsel.” Minn. Stat. Ann. § 253D.20. Appeal of the decision of the special judicial panel may be taken to the Minnesota Court of Appeals. Minn. Stat. Ann. §§ 253D.28, 253B.19(5). Finally, a committed person is entitled to initiate a new petition six months after the prior petition is concluded. Minn. Stat. Ann. § 253D.27(2).
We conclude that this extensive process and the protections to persons committed under MCTA are rationally related to the State's legitimate interest of protecting its citizens from sexually dangerous persons or persons who have a sexual psychopathic personality. Those protections allow committed individuals to petition for a reduction in custody, including release; therefore, the statute is facially constitutional.

Karsjens, 845 F.3d at 408-10.

         The Eighth Circuit Court of Appeals then considered the standards related to an as-applied due process challenge. The court stated:

When it considered the proper standard to apply, the district court stated substantive due process protected against two types of government action: action that shocks the conscience or action that interferes with rights implicit in the concept of ordered liberty. The district court then proceeded to discuss how the state defendants' actions interfered with the class plaintiffs' liberty interests to be free from restraint and thus was subject to a strict scrutiny analysis. The district court applied the improper standard to consider an as-applied challenge when it determined there were two types of government action that could violate the class plaintiffs' substantive due process rights.
Following the Supreme Court's decision in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), this court held to prevail on an as-applied due process claim, that the state defendants' actions violated the plaintiffs' substantive due process rights, the plaintiffs “must 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.'” Moran v. Clarke, 296 F.3d 638, 651 (8th Cir. 2002) (en banc) (Bye, J., concurring and writing for a majority on this issue) (emphasis in original) (quoting Glucksberg, 521 U.S. at 720- 21, 117 S.Ct. 2258 (1997)). The district court, citing to a pre-Lewis decision of United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), used the former disjunctive standard and focused only on whether there was a fundamental right at issue, and having determined that there was a fundamental right at issue, the district court applied a strict scrutiny test to both the facial and as-applied challenges.
As indicated above, however, the court should determine both whether the state defendants' actions were conscience-shocking and if those actions violated a fundamental liberty interest. To determine if the actions were conscience-shocking, the district court should consider whether the state defendants' actions were “egregious or outrageous.” See Montin v. Gibson, 718 F.3d 752, 755 (8th Cir. 2013) (quoting Burton v. Richmond, 370 F.3d 723, 729 (8th Cir. 2004)). To meet this high standard, we have explained 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.” Moran, 296 F.3d at 647 (quoting In re Scott Cnty. Master Docket, 672 F.Supp. 1152, 1166 (D. Minn. 1987)). Accordingly, the district court applied an incorrect standard in considering the class plaintiffs' as-applied substantive due process claims.

Karsjens, 845 F.3d at 408. Applying that standard, the court found:

We agree with the state defendants that much of the district court's “as-applied” analysis is not a consideration of the application of MCTA to the class plaintiffs but is a criticism of the statutory scheme itself. For instance, the court found that the statute was unconstitutional as applied to the plaintiffs because the state defendants do not conduct periodic risk assessments. However, the class plaintiffs acknowledge that MCTA does not require periodic risk assessments but those assessments are performed whenever a committed person seeks a reduction in custody. The district court also found as-applied violations in aspects of the treatment received by the committed persons, specifically concluding that the treatment program's structure has been an “institutional failure” and lacks a meaningful relationship between the program and an end to indefinite detention. However, we have previously held 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.” See Strutton v. Meade, 668 F.3d 549, 557 (8th Cir. 2012) (alteration in original) (quoting Elizabeth M. v. Montenez, 458 F.3d 779, 788 (8th Cir. 2006)). Further, as the Supreme Court recognized, the Constitution does not prevent “a State from civilly detaining those for whom no treatment is available.” Hendricks, 521 U.S. at 366, 117 S.Ct. 2072. Nevertheless, as discussed previously, 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. See Moran, 296 F.3d at 651.
None of the six grounds upon which the district court determined the state defendants violated the class plaintiffs' substantive due process rights in an as-applied context satisfy the conscience-shocking standard. Having reviewed these grounds and the record on appeal, we conclude that the class plaintiffs have failed to demonstrate that any of the identified actions of the state defendants or arguable shortcomings in the MSOP were egregious, malicious, or sadistic as is necessary to meet the conscience-shocking standard. Accordingly, we deny the claims of an as-applied due process violation.

Karsjens, 845 F.3d at 410-11.

         Following the decision of the Eighth Circuit Court of Appeals in Karsjens, the Federal District Court for the Eastern District of Missouri reconsidered its trial findings from the Van Orden case. First, the court characterized the findings of the Eighth Circuit Court of Appeals in Karsjens:

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 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, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) and Foucha v. Louisiana, 504 U.S. 71, 116, 112 S.Ct. 1780');">112 S.Ct. 1780, 118 L.Ed.2d 437 (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. (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.

Van Orden v. Stringer, 262 F.Supp.3d 887, 891-92 (E.D. Mo. 2017). The court then applied its interpretation of Karsjens and found:

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). The Eighth Circuit further held that claims substantially similar to the ones alleged here do not 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, 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, 118 S.Ct. 1708. 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 of a second change, ” such as a prison riot or high-speed chase. Id. at 852-53, 118 S.Ct. 1708. 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, 118 S.Ct. 1708.
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).

Van Orden, 262 F.Supp.3d at 893-94.

         IV. FACTUAL FINDINGS

         A. Dr. Wilson's Report

         The major factual change to the record since the court's prior order is the filing of the Rule 706 expert report.[6]

         At the outset of his report, Dr. Wilson[7] explained how he collected his data and formed his opinions:

The Evaluator was appointed by the Court on 04/25/2017, subsequent to which contacts were made by email with counsel for the plaintiffs and defendants. The Evaluator requested documentation, as noted in the next section, which was ultimately provided largely by counsel for the Defendants, both by email and on CD and flash drive. Included in these documents were the clinical records of the named plaintiffs.
The Evaluator visited the CCUSO site in Cherokee, IA on two occasions, 05/29/2017 to 06/01/2017 and 07/25-26/2017. On each occasion, interviews were undertaken with both staff and patients. During the first site visit, the Evaluator was able to meet with all but one (Mr. Matlock) of the named plaintiffs, both collectively and individually. . . Upon arrival on the first day of the first visit, the Evaluator was provided with a full tour of the facility by the Deputy Superintendent, Mr. Wittrock. On the second day of the first visit, the Evaluator was invited to the all-staff meeting first thing in the morning. At this meeting, both clinical and safety/security staff discussed current issues, as well as issues or problems that occurred in the recent past and plans for future revisions to policy and practice. The meeting was productive and staff appeared motivated to speak their minds about a variety of topics - from patient issues to program adaptation (e.g., new programming for special needs. Otherwise, the Evaluator was able to attend meetings with Clinical staff (full complement, as well as a subset of staff working on the Special Needs project) and Treatment Program Supervisors (TPS). . .

(docket no. 117, p. 4-14). Dr. Wilson also reviewed a detailed list of documents related to Iowa's civil commitment program. (docket no. 117, p. 4-14, 59-60).

         Dr. Wilson's report contains an overview of the physical facilities at CCUSO, something the record was previously lacking. (docket no. 117, p. 17-18). The report discusses everything from the quality of outdoor green spaces to the food service.[8] (docket no. 117, p. 18). Additionally, the report discusses the history of clinical sex offender treatment, the currently used methods for treating, and the effectiveness of treatment over non-treatment for sex offenders. (docket no. 117, p. 21-38). Dr. Wilson summed up the field of sex offender treatment by stating:

To date, few SOCC centers have released enough clients who have completed treatment to provide recidivism findings.
Those centers that have offered research findings (e.g., FL - Carr et al., 2013; DeClue, 2016; Wilson et al., 2012) have found that rates of sexual reoffending in released SVPs are not particularly different from their non-SVP counterparts. Without greater numbers of releases from SOCC, coupled with research as to post-release outcomes, it is ...

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