United States District Court, N.D. Iowa, Western Division
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,
CHARLES PALMER and CORY TURNER, Defendants.
OPINION AND ORDER ON DEFENDANTS' MOTION FOR
W. BENNETT, U.S. DISTRICT COURT JUDGE
THE KARSJENS DECISION
Dr. Wilson's Report
Dr. Schlank's Report
The Parties' Arguments
As Applied Due Process Challenge in light of Karsjens
Fundamental Liberty Interest
Shocks the Conscience
Whether CCUSO is Punitive and the Least Restrictive
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.
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
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).
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.
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).
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
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.
THE KARSJENS DECISION
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. Similarly, I set out the important Eighth
Circuit cases related to due process and civil commitment
programs. Accordingly, my discussion in this order
will focus on the two decisions which were issued since that
order which affect my analysis.
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.
Karsjens case, from Minnesota, was appealed to the
Eighth Circuit Court of Appeals. 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.
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
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.
Eighth Circuit Court of Appeals then considered the standards
related to an as-applied due process challenge. The court
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
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.
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
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.,
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
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
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
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.
Dr. Wilson's Report
major factual change to the record since the court's
prior order is the filing of the Rule 706 expert
outset of his report, Dr. Wilson 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).
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. (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