CASE 0:11-cv-03659-DWF-JJK Document 208 Filed 08/15/12 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, Brian Christopher John Thuringer, Kenny S. Daywitt, and Bradley Wayne Foster,

Plaintiffs,

v.

Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Greg Carlson, and Ann Zimmerman, in their individual and official capacities,

Def

endants.

Civ. No. 11-3659 (DWF/JJK) ORDER

BACKGROUND The above-captioned matter was originally filed as Karsjens, et al. v. Minnesota Department of Human Services, et al., pro se, on December 21, 2011, as a proposed class action. On January 12, 2012, attorneys from the law firm of Gustafson Gluek PLLC filed Notices of Appearance in this matter. On or about January 25, 2012, Chief Judge Davis issued an Order [Doc. No. 142] staying all pending pro se Minnesota Sex Offender Program (“MSOP”) cases with the exception of this matter and Thompson v. Ludeman, et

CASE 0:11-cv-03659-DWF-JJK Document 208 Filed 08/15/12 Page 2 of 3
al., 11-CV-1704 (DWF/JJK), and on February 6, 2012, Chief Judge Davis issued an amended Order [Doc. No. 83] staying additional MSOP cases. On February 8, 2012, Judge Frank issued an Order [Thompson, Doc. No. 146] staying the Thompson litigation. On March 15, 2012, an Amended Complaint [Doc. No. 151] was filed in the Karsjens matter and on July 24, 2012, Judge Frank issued an Order [Doc. No. 203] certifying the Karsjens matter as a class action. The parties have been and continue to discuss settlement of the issues raised in the Karsjens Amended Complaint.
The Court recognizes that issues relating to the processes for sex offender civil commitment, reductions in custody, and less restrictive alternatives to sex offender civil commitment in secure treatment facilities are processes that may be addressed through further study and consensus by use of a task force.
Accordingly, IT IS HEREBY ORDERED that: 1. The Minnesota Commissioner of Human Services (Commissioner) shall create an advisory task force hereinafter referred to as the “Sex Offender Civil Commitment Advisory Task Force” (Task Force) that shall consist of up to 15 members and will expire two years from the date of appointment of the first member; 2. The Task Force shall examine and provide recommended legislative proposals to the Commissioner on the following topics:
A. The civil commitment and referral process for sex offenders; B. Sex offender civil commitment options that are less restrictive than
placement in a secure treatment facility; and C. The standards and processes for the reduction in custody for civilly
committed sex offenders.
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CASE 0:11-cv-03659-DWF-JJK Document 208 Filed 08/15/12 Page 3 of 3

3. The Commissioner shall strive to appoint individuals to the Task Force that

have knowledge of the sex offender civil commitment process and the Minnesota Sex

Offender Program; including, to the extent possible:

A. Current and former state legislators

B. Active or retired Minnesota County Attorneys

C. Active or retired Minnesota State Court judges

D. Active or retired Minnesota law enforcement personnel

E. Attorneys licensed in the State of Minnesota that represent or have

represented patients or sex offenders

F. The Minnesota Ombudsman for mental health

G.

Victim advocates

H.

Sex offender treatment professionals

I.

Minnesota Department of Corrections

J.

Minnesota County Commissioners

K. Minnesota County Adult Social Services

L.

Academic Professionals

4. The Task Force shall provide the Commissioner with recommendations on

less restrictive alternatives to placement in secure treatment facilities and the Task Force

shall provide to the Commissioner a schedule setting forth its work on each of the

remaining topics and any other topics it deems necessary to adequately address the area

of sex offender civil commitment by December 3, 2012. The schedule shall specify the

date(s) by which the task force will deliver further recommended legislative reforms to

the Commissioner.

5. The formation of this Task Force shall not affect or impair the rights of the

parties with respect to further settlement discussions or litigation in this matter.

Date: August 15, 2012 Arthur Chief United

s/ Arthur J. Boylan J. Boylan Magistrate Judge States District Court
3

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, and Bradley Wayne Foster,
Plaintiffs,
v.
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Greg Carlson, and Ann Zimmerman, in their individual and official capacities,
Defendants.

Civil No. 11-3659 (DWF/JJK)
ORDER CERTIFYING CLASS PURSUANT TO
FEDERAL RULE 23(b)(2)

This matter comes before the Court upon Plaintiffs’ motion for class certification under Fed. R. Civ. P. 23(b)(2). After considering the submissions of the parties, and based upon the following, it is the finding of this Court that Plaintiffs’ Amended Motion for Class Certification (Doc. No. [171]) is GRANTED. I. Background
This matter arises from the alleged lack of treatment and unconstitutional conditions of confinement that Plaintiffs assert exist at the Minnesota Sex Offender Program (“MSOP”).

Over the last several years, a number of patients civilly committed to the MSOP have filed federal complaints against various state employees associated with the MSOP. The pro se complaints generally allege violations of the patients’ civil rights pursuant to 28 U.S.C. § 1983 and other statutes. On January 20, 2012, at the request of the Minnesota Federal Bar Association’s Pro Se Project, Gustafson Gluek PLLC agreed to appear in two of these cases, Thompson v. Ludeman, et al., 11-CV-01704 (DWF/JJK) and Karsjens et al. v. Jesson, et al., 11-CV-0359 (DWF/JJK). The Karsjens case was initially filed on December 21, 2011 as a proposed class action. The Thompson case was filed on June 27, 2011; an Amended Complaint was filed on Aug. 2, 2011 [Thompson Doc. No. 9]. On January 11, 2012 Magistrate Judge Keyes issued a Report and Recommendation in the Thompson case in response to the Defendants’ Motion to Dismiss [Thompson Doc. No. 39]. The Report and Recommendation found that some of the claims should survive the motion to dismiss.
After Gustafson Gluek PLLC appeared in Karsjens and Thompson, on January 25, 2012, Chief Judge Davis issued an Order [Karsjens Doc. No. 142] staying all of the pro se MSOP cases with the exception of the Thompson and Karsjens actions pending the resolution of the outstanding Motion for Class Certification filed in the Karsjens case [Karsjens Doc. No. 24]. On February 6, 2012, Chief Judge Davis issued an Amended Order [Karsjens Doc. No. 145] applying the stay to additional MSOP cases that were unintentionally omitted from his previous order. On February 8, 2012, Judge Frank issued an Order [Karsjens Doc. No. 146] staying the Thompson litigation until further notice, and setting a deadline for filing an Amended Complaint in the Karsjens action by
2

February 29, 2012. The First Amended Complaint in the Karsjens case was filed on March 15, 2012 [Karsjens Doc. No. 151]. Currently, there are more than 65 cases subject to the Court’s stay.
Plaintiffs filed an Amended Complaint on March 15, 2012 alleging: (1) failure to provide treatment; (2) denial of right to be free from punishment; (3) denial of less restrictive alternatives; (4) denial of right to be free from inhumane treatment; (5) denial of right to religious freedom; (6) unreasonable restrictions on speech and association; (7) unreasonable searches and seizures; (8) the civil commitment statute is unconstitutional as applied; (9) violation of court ordered treatment; and (10) breach of contract.
Currently before the Court is Plaintiffs’ motion to certify a class of: “All patients currently civilly committed in the Minnesota Sex Offender Program pursuant to Minn. Stat. § 253B.” II. Standard for Class Certification under Rule 23
1. Rule 23(a) A class action serves to conserve the resources of the court and the parties by permitting an issue that may affect every class member to be litigated in an economical fashion. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155 (1982). Rule 23 of the Federal Rules of Civil Procedure governs class certification. To be certified as a class, plaintiffs must meet all of the requirements of Rule 23(a) and must satisfy one of three subsections of Rule 23(b). The Rule 23(a) requirements for class certification are: (1) the putative class is so numerous that it makes joinder of all members impracticable; (2) questions of law or fact are common to the class; (3) the class
3

representatives’ claims or defenses are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. In re St. Jude Med., Inc., 425 F.3d 1116, 1119 (8th Cir. 2005) (citing Fed. R. Civ. P. 23(a)) (citations omitted). District courts retain broad discretion in determining whether to certify a class. Gilbert v. City of Little Rock, Ark., 722 F.2d 1390, 1399 (8th Cir. 1983). When considering a motion for class certification, a court need not ask “whether the plaintiff or plaintiffs have stated a cause of action or will ultimately prevail on the merits, but rather whether the requirements of Rule 23 are met.” Beckmann v. CBS, Inc., 192 F.R.D. 608, 613 (D. Minn. 2000) (citing Eisen v. Carlisle & Jaquelin, 417 U.S. 156, 178 (1974)). A “decision to certify a class is far from a conclusive judgment on the merits of the case.” In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604, 613-614 (8th Cir. 2011) (citation omitted). At the class certification stage, the only requirement is that the elements of Rule 23 are met. Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th Cir. 2011). The party seeking class certification “carr[ies] the burden of proof regarding Rule 23’s requirements.” City of Farmington Hills Employees Ret. Sys. v. Wells Fargo Bank, N.A., Civ. No. 10-4372 (DWF/JJG), 2012 WL 1021679 at *3 (D. Minn. Mar. 27, 2012) (citing In re Workers’ Comp., 130 F.R.D. 99, 103 (D. Minn. 1990)) (citation omitted). A court may only certify the class if it is “satisfied after a rigorous analysis that all of the prerequisites are met.” Bishop v. Comm. On Prof’l Ethics, 686 F.2d 1278, 1287 (8th Cir. 1982) (citing Gen. Tel. Co., 457 U.S. at 161). When a question arises as to
4

whether certification is appropriate, the court should give the benefit of the doubt to approving the class. In re Workers’ Comp., 130 F.R.D. at 103 (citation omitted).
a. Numerosity Rule 23(a) requires that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Rule 23(a)’s first requirement is that joinder of all class members is impracticable because the class is too numerous. See Fed. R. Civ. P. 23(a)(1). The Eighth Circuit has not established any rigid rules regarding the necessary size of a class and the question of what makes joinder impracticable depends on the facts of each case. Sonmore v. CheckRite Recovery Services, Inc., 206 F.R.D. 257, 261 (D. Minn. 2001). However, classes have been certified in this District consisting of roughly 540 class members (see Kimball v. Fredrick J. Hanna & Associates, P.C., 2011 WL 3610129 at *3 (D. Minn. Aug. 15, 2011)) to as few as 250-300 individuals. In re Workers’ Comp., 130 F.R.D. at 104 (citing Bowman v. Nat’l Football League, 402 F. Supp. 754, 756 (D. Minn. 1975)). Here, approximately 600 individuals fit the proposed class definition. Those individuals face an identical process for treatment and potential release. To address each individual case would be an enormous drain on the resources of the Court and the parties. Plaintiffs have satisfied Rule 23(a)(1).
b. Commonality Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550-01 (2011) (citing Fed. R. Civ. P. 23(a)(2)).
5

The Supreme Court recently clarified the commonality requirement, stating:
Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury . . . . [The class members’] claims must depend upon a common contention . . . . That common contention, moreover, must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.
Id. at 2551 (quotation omitted). Commonality “may be satisfied, for example, where the
question of law linking the class members is substantially related to the resolution of the
litigation even though the individuals are not identically situated.” Paxton v. Union Nat’l
Bank, 688 F.2d 552, 561 (8th Cir. 1982) (internal quotation omitted).
Here, the class members allege the same injuries–generally, the lack of treatment,
inadequate conditions of confinement, and lack of meaningful opportunity for release.
The Plaintiffs have identified questions that are common to all Class members:
a. Whether Defendants violated Plaintiffs’ and Class members’ Due Process rights protected by the Fourteenth Amendment to the United States Constitution by failing to provide a realistic opportunity to earn their discharge from the MSOP;
b. Whether Defendants violated Plaintiffs’ and Class members’ Due Process rights protected by the Fourteenth Amendment to the United States Constitution by failing to provide a less restrictive confinement option as provided for by Minn. Stat. § 253B;
c. Whether Defendants violated Plaintiffs’ and Class members’ Due Process rights protected by the Fourteenth Amendment to the United States Constitution by creating an unnecessarily punitive environment;
d. Whether Defendants violated Plaintiffs’ and Class members’ rights to be free from unreasonable searches and seizures as protected by the Fourth Amendment to the United States Constitution;
6

e. Whether Defendants violated Plaintiffs’ and Class members’ rights to freedom of expression, speech, and religious exercise as protected by the First Amendment to the United States Constitution;
f. Whether Minnesota’s civil commitment laws are unconstitutional as applied to Plaintiffs and Class members;
g. Whether Defendants violated the court-ordered treatment directive for Plaintiffs and Class members; and
h. Whether Defendants’ failure to satisfy their obligations to Plaintiffs and Class members under the Consent for Participation in Sex Offender Treatment constitutes a breach of contract.
However, “[w]hat matters to class certification . . . is not the raising of common
‘questions’—even in droves—but, rather the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores,
Inc., 131 S. Ct. at 2551 (citation omitted, emphasis in original). The proposed Class
members allege the same injuries endured by all Class members. As such, resolution of
the Plaintiffs’ claims will necessarily remedy the injuries suffered by all potential Class
members. The injuries alleged are all capable of classwide resolution. Therefore,
Plaintiffs have satisfied Rule 23(a)(2).
c. Typicality Rule 23(a) also requires that, in order for a class to be certified, the claims or
defenses of the class representative must be typical of the other members of the class.
Fed. R. Civ. P. 23(a)(3). “This requirement is generally considered to be satisfied if the
claims or defenses of the representatives and the members of the class stem from a single
event or are based on the same legal or remedial theory.” Paxton, 688 F.2d at 561-62
(citation omitted). Commonality and typicality tend to merge because both “serve as 7

guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Wal-Mart Stores, Inc., 131 S. Ct. at 2551, n.5 (quoting Gen. Tel. Co., 457 U.S. at 157-58, n.13).
Here, Plaintiffs’ claims stem from the same legal theory and seek the same legal remedy. Therefore, Plaintiffs satisfy Rule 23(a)(3).
d. Adequacy Rule 23(a)(4) requires plaintiffs to establish that the “representative parties will fully and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “In order to satisfy the adequacy requirement, Plaintiff must show that (1) the representative and its attorneys are able and willing to prosecute the action competently and vigorously and (2) each representative’s interests are sufficiently similar to those of the class that it is unlikely that their goals and viewpoints will diverge.” City of Farmington Hills Employees Ret. Sys., 2012 WL 1021679 at *4 (citing In re Potash Antitrust Litig., 159 F.R.D. 682, 692 (D. Minn. 1995)). Here, Plaintiffs and their appointed counsel aptly satisfy this requirement. The Court finds that Plaintiffs will vigorously prosecute their claims. The fact that they filed pro se complaints (and motions for a TRO, appointment of counsel, and class certification) alone proves the vigor of their commitment to this case. The Plaintiffs have amply demonstrated that they are willing to work diligently to protect the interests of the class–particularly in light of the fact that all other similar cases are stayed pending the
8

resolution of this matter. Plaintiffs have freely accepted the substantial responsibility of being the face of this litigation and advancing this case for all MSOP patients. They have actively engaged in all stages of this case.
Likewise, proposed Class Counsel have demonstrated their determination to vigorously prosecute this case. At the request of the Minnesota Federal Bar Association’s Pro Se Project, Daniel E. Gustafson and the law firm of Gustafson Gluek PLLC agreed to undertake representation of the Plaintiffs in this purported class action. Mr. Gustafson has over twenty years of experience in class action litigation, has been appointed lead counsel or co-lead counsel many times and has represented numerous classes in litigation during those years. Gustafson Gluek PLLC has already expended substantial time and resources researching the history of the case, the potential claims of Plaintiffs and members of the putative Class, and has consulted experts and developed legal theories to support Plaintiffs’ claims and their demands. Proposed lead counsel also has experience with the substantive law at issue here by prosecuting claims on behalf of other MSOP patients. See, e.g., Beaulieu v. Minn. Dep’t of Human Servs., 798 N.W.2d 542 (Minn. Ct. App. 2011) (review granted July 19, 2011). Gustafson Gluek PLLC has indicated that it will commit the time and resources necessary to litigate this case. As such, Daniel E. Gustafson and Gustafson Gluek PLLC, as well as the above-named Plaintiffs, are qualified, able, and willing to competently and vigorously represent the Class.
With respect to the second prong, the Court finds Plaintiffs’ interests to be sufficiently similar to those of the Class that it is unlikely that their goals and viewpoints
9

will diverge. The interests of Plaintiffs and the proposed Class members are certainly aligned in this case: they share the common goal of being housed in a humane, therapeutic environment while receiving adequate treatment that gives them a realistic opportunity for release. Although Plaintiffs each have different circumstances that led to their initial and continued commitment, Plaintiffs’ goals and viewpoints are unlikely to diverge from those of the remainder of the Class. Because the proposed Class representatives’ interests are sufficiently similar to those of the Class, and because Plaintiffs and their counsel are able and willing to competently and vigorously prosecute this action, the Court concludes that Plaintiffs have satisfied Rule 23(a)(4).
The Court recognizes that objections have been filed by certain individuals who fall within the Class definition. The objectors raise concerns that there may be conflicts between themselves and other Class members because they are choosing not to participate in treatment. The Court finds that it does not need to resolve these potential conflicts at this time. The Court finds that the potential Class members have similar interests, notwithstanding that some potential Class members may seek different remedies or relief. However, the Court retains jurisdiction over the Class, and if the Court finds any actual conflicts arise in the future, the Court will reconsider the need for subclasses. All parties reserve the right to seek the creation of subclasses or a determination of whether class certification remains appropriate pursuant to Fed R. Civ. P. 23(c)(1)(C) and (c)(5). The burden remains on the Plaintiffs to show that they continue to satisfy the requirements of Rule 23.
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2. Rule 23(b) Even if a plaintiff meets all of the prerequisites set forth in Rule 23(a), he or she must also satisfy one or more of the conditions set forth under Rule 23(b). Fed. R. Civ. P. 23(b); see also Gen. Tel. Co., 457 U.S. at 161; Harju v. Olson, 709 F. Supp. 2d 699, 734 (D. Minn. 2010). In the present case, at this time, Plaintiffs seek certification only pursuant to Rule 23(b)(2). Certification may be established under Rule 23(b)(2) “if the prerequisites of subdivision (a) are satisfied, and in addition . . . (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole . . . .” Fed. R. Civ. P. 23(b)(2). In this case, the Court finds that Defendants’ alleged acts and omissions regarding the Plaintiffs’ claims constitute actions generally applicable to the Class. Furthermore, although Plaintiffs seek monetary damages as well as injunctive relief, the Plaintiffs do not currently seek a Rule 23(b)(3) class for damages, and reading the amended complaint as a whole, it is clear that injunctive relief predominates over any potential monetary relief. III. Conclusion For the reasons outlined above, IT IS ORDERED that this case is certified as a class action under Federal Rule of Civil Procedure 23(b)(2). The Class consists of the following: “All patients currently civilly committed in the Minnesota Sex Offender Program pursuant to Minn. Stat. § 253B.”
11

IT IS FURTHER ORDERED that Gustafson Gluek PLLC shall serve as Class Counsel, and the above-named Plaintiffs shall serve as Class Representatives.
SO ORDERED.

Dated: July 24, 2012

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

12

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, and Bradley Wayne Foster,
Plaintiffs,
v.
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Greg Carlson, and Ann Zimmerman, in their individual and official capacities,
Defendants.

Civil No. 11-3659 (DWF/JJK) ORDER

This matter is before the Court on Plaintiffs’ Application for Temporary Restraining Order/Preliminary (Doc. No. 16), Plaintiffs’ Motion for Appointment of Counsel (Doc. No. 23), Plaintiffs’ Motion for Temporary Restraining Order (Doc. No. 175), and Unnamed Plaintiffs’ Motions in Opposition to Plaintiffs’ Motion for Class Certification (Doc. Nos. 183-91, 195-96). I. Class Certification
On June 28, 2012, Plaintiffs filed an Amended Motion for Class Certification. (Doc. No. 171.) Pursuant to a hearing on July 24, 2012, and the agreement of the parties, the Court granted Plaintiffs’ motion under Rule 23(b)(2) of the Federal Rules of Civil

Procedure. (Doc. No. 203.) At the hearing and in its order, the Court acknowledged, and overruled, the objections of certain unnamed class members to the motion for class certification. (Id. at 10.) The Court recognized concerns that potential conflicts may arise between the named Plaintiffs and certain class members who have refused treatment or who may seek different remedies or relief. (Id.) Consequently, the Court retained jurisdiction over the Class and reserved the right to reconsider the need for subclasses should any actual conflicts arise in the future. (Id.) Therefore, Unnamed Plaintiffs’ Motions in Opposition to Plaintiffs’ Motion for Class Certification (Doc. Nos. 183-91, 195-96) are properly denied.
In addition to certifying the proposed class, the Court appointed Gustafson Gluek PLLC as class counsel. (Doc. No. 203 at 12.) Thus, Plaintiffs’ Motion for Appointment of Counsel (Doc. No. 23) is denied as moot. II. Second Motion for TRO
At the July 24, 2012 hearing, the parties further represented that they had reached an agreement with respect to Plaintiffs’ second motion for a temporary restraining order (“TRO”) (Doc. No. 175). The parties filed their agreement after the hearing, which sets forth a policy to be followed by MSOP with respect to Plaintiffs’ legal storage space and any searches of Plaintiffs’ rooms and legal network space. (Doc. No. 204.) In light of the stipulated agreement of the parties (id.), Plaintiffs’ second motion for a TRO (Doc. No. 175) is denied as moot.
2

III. Original Motion for TRO Prior to class counsel’s involvement in this case, Plaintiffs filed a pro se
application for a TRO (Doc. No. 16). To the extent Plaintiffs’ motion raises issues with respect to searches and legal storage space that have been resolved pursuant to the stipulated agreement of the parties (Doc. No. 204), the motion is denied as moot. To the extent Plaintiffs seek any additional relief, the Court concludes that Plaintiffs have failed to satisfy the Dataphase factors required to warrant such relief. See Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). Plaintiffs have failed to allege an actual injury and have failed to articulate a legal or factual basis that would entitle them to injunctive relief. At the hearing, Plaintiffs’ counsel acknowledged that the motion appeared to be premature with respect to any claims of retaliatory transfer to the Department of Corrections or loss of work assignments. The Court concludes that the perceived threat of any such retaliation is insufficient to warrant a TRO. In those respects, the motion is denied.
ORDER Based upon the foregoing, IT IS HEREBY ORDERED that: 1. Plaintiffs’ Application for Temporary Restraining Order/Preliminary (Doc. No. [16]) is DENIED as follows:
a. To the extent the motion seeks relief with respect to legal storage space and searches, the motion is DENIED AS MOOT.
b. In all other respects, the motion is DENIED.
3

2. Plaintiffs’ Motion for Appointment of Counsel (Doc. No. [23]) is DENIED AS MOOT.
3. Plaintiffs’ Motion for Temporary Restraining Order (Doc. No. [175]) is DENIED AS MOOT.
4. Unnamed Plaintiffs’ Motions in Opposition to Plaintiffs’ Motion for Class Certification (Doc. Nos. [183-91], [195-96]) are DENIED.

Dated: July 26, 2012

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

4

 
 CASE 0:11-cv-03659-DWF-JJK Document 18 Filed 12/21/11 Page 1 of 5
United States District Court District of Minnesota Fourth Division

Kevin Scott Karsjens, David Leroy Gamble, Jr., Kevin John DeVillion, Peter Gerard Lonergan, James Matthew Noyer, Sr., James John Rud, Dennis Richard Steiner, James Allen Barber, Craig Allen Bolte, Kaine Joseph Brauno Brian Keith Hausfield, Christopher John Thuringer, Kenneth S. Daywitt, Bradley Wayne Foster,
Plaintiffs,
VS.
Minnesota Department of Health & Human
Services, Minnesota Sex Offender Program, Lucinda Jesson, Dennis Benson, Tom Lundquist, Jim Berg, Kevin Moser, Ann Zimmerman, Laurie Severson, Greg Carlson, Elizabeth Barbo, Mehadad
Sabestari, Terry Kneisel, Scott Benoit, Erik
Skon, Susan Johnson, Jean Seykora, John Doe and Jane Doe, whose true names are unknown),
Defendants.

C.l,sn No:
Mnuon,I,NDUM OF LAW IN
Supponr or APPLTcATToN FoR
Tnn rpon lRY RESTRAINTNc Ononn/PRELIMINARY IN.ruNcrroN

A court may grant a temporary restraining order or a preliminary injunction if the
moving party demonstrates "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in his favor, and that an injunction is in the public interest."2

, F ' Winter v. Natural Res. l98l) $ A N E Systems,Inc.,640 F.2d

Def. Council, Inc.,129
109, ll5 (8th Cir.

S. Ct.

365,

374,

Q008);

also

see

Dataphase

Systems,

Iry

XG C

o ^N,l

D

i DEC 2 ZOIl

JA< U.S. DISTNICT COURT ST. PAUL

CASE 0:11-cv-03659-DWF-JJK Document 18 Filed 12/21/11 Page 2 of 5
An injunction is an extraordinary remedy that is not routinely granted and generally
reserved for when the right to relief is clear.3 In determining whether to issue such injunctive reliel the Court considers the following factors, o 11; the threat of ineparable harm to plaintiffs; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on the defendants; (3) the probability of plaintiffs'
success on the merits; and (4) the public interest.5 No single factor is determinative. The Court also considers the probability of the Plaintiffs' success in the context of the relative injuries to the Plaintiffs, Defendants, and the public.6
(1) Plaintiffs are harmed ineparably every day that the Defendant's version of the Minnesota Sex Oflender ProgramT is allowed to exist in an ordered society. Every single
immediate Plaintiff is participating in treatment willfully. Plaintiffs deserve to receive
treatment which would render further supervision unnecessary. Plaintiffs are not
receiving this type of individualized carc.
It is a fact that patients at the MSOP are subjected to threats by the Defendants.s
These threats include, but are not limited to: the threat of receiving unfavorable treatment reports, being moved or transferred to a different living unit, the threat of unwarranted
' Weinberger v. Romero-Barcelo, 456 U.S. 305,312,102 S. Ct. 1798,72 L. Ed. 2d 9l (1982); Ferry-Morse Seed
Co. v. Food Corn, Inc., 729 F.2d 589, 593 (8th Cir. 1984). a Id Dataphase Systems at I13. 'Winter v. Natural Resources Defense Council, lnc.,129 S. Ct. 365, 374,172L.F;d.2d249 (2008); Oglala Sioux Tribe v. C&W Enterprises, Inc., 2009 U.S. Dist. LEXIS 25881, 3 (D.S.D. March 25,2009)(applying Dataphase factors to TRO motion consideration). u Id Dataphase Systems, at I13. ' Hereinafter "MSOP." E See Plaintiffs Exhibits No.'s Kar.yers bhibit A & Ganble Exhibit B attached hereto.
-2-

CASE 0:11-cv-03659-DWF-JJK Document 18 Filed 12/21/11 Page 3 of 5
searches to confiscate legal materials, and the threat of being returned to the Department of Corrections if the Patient is on Supervised/Intensive Supervised Release etc...
Making Plaintiff's choose between clothing, books, and other personal property and
their legal material's violates due process by punishing those who choose to litigate
against the Defendants. "Allowing Plaintiff to keep such documentation in his
possession should not cause Defendants any significant harm, as the storage locker
provided [] should be suffrcient to hold copies of the pleadings and exhibits for all of
Plaintiff's active cases."e
A11 Plaintiffs will suffer irreparable harm if Defendant[s] are allowed to act against
same in a manner, which would disrupt the inpatient comprehensive treatment program they are currently committed to, by Minnesota Court, Probate Division Order: and are
actively participating in the treatment.
(2) Because there was no serious threat to the Defendant's before the implementation
of the violations complained of; and because the Defendants have the Minnesota State
Rules, governing the housing and treatment of other mentally ill & dangerous citizens' is
already in place in Minnesota, there is no, or minimal safety risk to the Defendants in this
case. Therefore, any risk of possible harm or costs to Defendants is non-existent or
negligible.
n Williams v. Stewart,2010 U.S. Dist. LEXIS 101875. -3-

CASE 0:11-cv-03659-DWF-JJK Document 18 Filed 12/21/11 Page 4 of 5

(3) The chance that Plaintiffs will succeed on the merits is great. Defendants have
made such drastic and draconian changes to the MSOP since 2008 that there is no longer any doubt that the MSOP violates nearly every aspect of the due process clause as well as
many other facets of federal law. The evidence is overwhelming that it exists for no
purpose other than the preventative detention of civilly committed sex offenders. The
State of Minnesota Legislative Auditor agrees with this assessmentr0

(4) It is the Plaintiffs' belief that it is always in the public's best interest to have
government employees whom adhere to the Constitutional principles of the United States ofAmerica.

Plaintiffs have the burden of showing that preliminary relief should be granted.lr
Because Plaintiffs seek to enjoin the enforcement of state statutes, they must
"demonstrate more than just a'fair chance' that they will succeed on the merits.l2'r
Instead, Plaintiffs must meet a more rigorous standard, demonstrating that they are "likely
" to prevail on the merits. 13 This more "rigorous standard 'reflects the idea that
govemmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference
and should not be enjoined lightly.'r4" The Eighth Circuit has stated that "[b]y re-

r0 See Plaintiffs Exhibits l&2 submitted with the Complaint. rr Catlson, e!al., v. Wiggins, et; a1.,760 F. Supp. 2d 8l I (A Dist. 201l); see also Baker Elec. Coop., Inc. v.

Chaske, 28 F.3d 1466,1472 (8th Cir. 1994) (citing Modem Computer Sys., Inc. v. Modern Banking Sys., Inc., 871

Ft'.I2dd,
tt Id.

734, 737 (8th Cir. I 989) (en banc)). see also Planned Parenthood of Minn. v. Rounds, 530 F.3d 724,731-32 (8th at 732 (quoting Doran v. Salem Inn, Inc., 422LJ.5. 922, g3l, gS S. Ct. 256 l,

Cir. 2008) (en banc).
45 L. Ed. 2d e+t ge:.sy.

'' Id. (quoting Able v. United States, 44F.3d 128,l3l (2dCt. 1995)).

-4-

CASE 0:11-cv-03659-DWF-JJK Document 18 Filed 12/21/11 Page 5 of 5
emphasizing this more rigorous standard for demonstrating a likelihood of success on the merits in these cases, we hope to ensure that preliminary injunctions that thwart a state's
presumptively reasonable democratic processes are pronounced only after an
appropriately deferential analysis.r5" The Court has no doubt that this exhortation to apply "an appropriately deferential analysis" applies with at least equal-if not greaterforce where, as here, Plaintiffs seek to enjoin enforcement of not just a state stafute, but a provision of a state constifution.
Since Mr. Benson has come to the MSOR he has implemented more than 319 policies; most of which restrict the Plaintiff's civil rights. There is not one single policy left from before the period of time defendant Benson's hire. Many, if not all of these new policies were adopted from the Minnesota Department of Corrections.l6 Plaintiff can prove at hearingltrial, the MSOP is nothing more than a civil prison/preventative
detention designed to punish the patients which reside within it's razor-wire fences. Plaintiff's have made a prima facie showing by advancing ample evidence through
sworn affidavit and physical evidence to warrant GRANT of TRO/Preliminary Injunction
in Karsjens on behalf
15 Id. at 733. t6 See PlaintiffLonergan's Exhibit C attached hereto; and Exhibit 3 submitted with the filed Complaint.
-5,

 
 CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 1 of 14

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Guy Greene, Plaintiff,
v. Dennis Benson, et al.,
Defendants. ______________________________ Peter Allan,
Plaintiff, v. Lucinda Jesson, et al.,
Defendants. ______________________________ Joseph Thompson,
Plaintiff, v. Cal R. Ludeman, et al.,
Defendants. ______________________________

Civil No. 11-979 (JRT/TNL) AMENDED ORDER
Civil No. 11-1611 (ADM/JJK)
Civil No. 11-1704 (DWF/JJK)

CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 2 of 14

Shawn M. Jamison,
Plaintiff, v.
Cal R. Ludeman, et al.,
Defendants. ______________________________
Hollis J. Larson,
Plaintiff,
v.
Lucinda Jesson, et al.,
Defendants. ______________________________
Jacquard Larkin,
Plaintiff, v.
Cal Ludeman, et al.,
Defendants. ______________________________
Wallace James Beaulieu,
Plaintiff,
v.
Lucinda Jesson, et al.,
Defendants. ______________________________
2

Civil No. 11-2136 (RHK/FLN) Civil No. 11-2247 (PAM/AJB) Civil No. 11-2339 (RHK/JSM) Civil No. 11-2593 (DWF/JSM)

CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 3 of 14

Wallace James Beaulieu,
Plaintiff, v.
Lucinda Jesson, et al.,
Defendants. ______________________________
Hearvy Brown,
Plaintiff,
v.
Cal Ludeman, et al.,
Defendants. ______________________________
Kevin Moen,
Plaintiff,
v.
Lucinda Jesson, et al.,
Defendants. ______________________________

Civil No. 11-2755 (DWF/JSM) Civil No. 11-2859 (JRT/SER)
Civil No. 11-2906 (ADM/SER)

3

CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 4 of 14

Daniel Larsen,
Plaintiff,
v.
Dennis Benson, et al.,
Defendants. ______________________________
Steven A. Housman,
Plaintiff,
v.
Cal Ludeman, et al.,
Defendants. ______________________________
Chris Krych,
Plaintiff, v.
DHS MSOP-ML, April 6, 2011 Client Placement Committee members and participants (John Doe's/Jane Doe's), et al.,
Defendants. ______________________________

Civil No. 11-3025 (ADM/AJB) Civil No. 11-3035 (PAM/JJG) Civil No. 11-3091 (JRT/AJB)

4

CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 5 of 14

William Beals, Plaintiff,
v. Dennis Benson, et al.,
Defendants. ______________________________ Wesley Elmer Wills,
Plaintiff, v. Lucinda Jesson, et al.,
Defendants. ______________________________ Michael Pittman,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ______________________________

Civil No. 11-3121 (PAM/AJB) Civil No. 11-3429 (PAM/TNL) Civil No. 11-3658 (SRN/TNL)

5

CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 6 of 14

Kevin Scott Karsjens, et al.,
Plaintiffs, v.
Minnesota Department of Human Services, et al.,
Defendants. ______________________________
Dale Lindsey,
Plaintiff,
v.
Lori Swanson, et al.,
Defendants. ______________________________
Ryan J. White,
Plaintiff,
v.
Governor Mark Dayton, et al.,
Defendants. ______________________________

Civil No. 11-3659 (DWF/JJK) Civil No. 11-3674 (SRN/SER) Civil No. 11-3702 (JRT/LIB)

6

CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 7 of 14

Jamaal Carey, Plaintiff,
v. Lori Swanson, et al.,
Defendants. ______________________________ Eugene Christopher Banks,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ______________________________ Gary P. Scott,
Plaintiff, v. Governor Mark Dayton, et al.,
Defendants. ______________________________ Charles A. Taylor a/k/a Terrance A. Pettis,
Plaintiff, v. Lori Swanson, et al.,
Defendants.
7

Civil No. 11-3711 (SRN/FLN) Civil No. 11-3712 (ADM/JJK) Civil No. 11-3714 (SRN/TNL) Civil No. 11-3728 (ADM/SER)

CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 8 of 14

______________________________ Darin D. Davidson,
Plaintiff, v. Mark Dayton, et al.,
Defendants. ______________________________ Robert Scott,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ______________________________ Christopher Ivey,
Plaintiff, v. MSOP, et al.,
Defendants. ______________________________

Civil No. 11-3733 (JNE/FLN) Civil No. 11-3737 (JRT/JJG) Civil No. 12-30 (DWF/TNL)

8

CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 9 of 14

Christopher Eckman, Plaintiff,
v. Lori Swanson, et al.,
Defendants. ______________________________ James D. Fries,
Plaintiff, v. Governor Mark Dayton, et al.,
Defendants. ______________________________ Leslie L. Tallman,
Plaintiff, v. Lori Swanson, et al.
Defendants. ______________________________

Civil No. 12-45 (MJD/JJK) Civil No. 12-62 (PJS/JSM) Civil No. 12-131 (RHK/JSM)

9

CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 10 of 14

Merel Evans Bishop,
Plaintiff,
v.
Lori Swanson, et al., Defendants.
______________________________
Eric Leon Gates,
Plaintiff,
v.
Lori Swanson, et al.,
Defendants. ______________________________
Joseph Goodwin,
Plaintiff,
v.
Lori Swanson, et al.,
Defendants. ______________________________
Lance Wickner, Plaintiff,
v.
Stephanie Danielson, et al.,
Defendants. ______________________________
10

Civil No. 12-135 (ADM/SER) Civil No. 12-181 (RHK/AJB) Civil No. 12-180 (SRN/SER) Civil No. 11-2905 (DWF/JJK)

CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 11 of 14

Paul J. Knutson, Plaintiff,
v. Dennis Benson, et al.,
Defendants. ______________________________ Charles Richard Stone,
Plaintiff, v. Lucinda E. Jesson, et al.,
Defendants. ______________________________ Raymond L. Semler, et al.,
Plaintiff, v. Cal Ludeman, et al.,
Defendants. ______________________________

Civil No. 10-357 (PJS/LIB) Civil No. 11-951 (MJD/JSM) Civil No. 11-644 (DWF/TNL)

11

CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 12 of 14

Eugene Christopher Banks, Plaintiff,
v. Lucinda Jesson, et al.,
Defendants. ______________________________ Michael Mrozek,
Plaintiff, v. Holly Ringler, et al.,
Defendants. ______________________________

Civil No. 11-1706 (MJD/JJK) Civil No. 11-2572 (JRT/SER)

The above-entitled matters have been filed as of the date of this Order in the United States District Court for the District of Minnesota. All Plaintiffs, whether filing individually or as co-Plaintiffs, have been civilly committed to the Minnesota Sex Offender Program. Furthermore, until January 20, 2012, all Plaintiffs, with the exception of Michael Mrozek, Plaintiff in Civil No. 11-2572, have been pro se. In Civil No. 11-3659 (DWF/JJK), a motion is pending for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. Daniel E. Gustafson, Esq., Gustafson Gluek PLLC, presently represents the Plaintiffs in Civil No. 11-3659 (DWF/JJK) and the Plaintiff in Civil

12

CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 13 of 14
No. 11-1704 (DWF/JJK) as a participant in the Minnesota Chapter of the Federal Bar Association's Pro Se Project.
On January 25, 2012, the undersigned issued a stay order, however, unintentionally omitted the following cases from the caption of the order: Civil Nos. 11-2905, 10-357, 11-951, 11-644, 11-1706 and 11-2572. The Court hereby amends the January 25, 2012 order to include all cases to be stayed filed as of the date of this Order.
The undersigned, in his capacity as Chief United States District Judge for the District of Minnesota, in order to secure the just, speedy, and inexpensive resolution of the above-entitled actions pending before the Court, has consulted with the judges and magistrate judges assigned to the above-entitled matters.
Based upon the status of the above-entitled matters and the pending motion for class certification in Civil No. 11-3659 (DWF/JJK), and the Court being otherwise duly advised in the premises, the Court hereby enters the following:
ORDER 1. Stay of All Cases Pending Resolution of Pending Motion for Class
Certification in Civil No. 11-3659 (DWF/JJK). All current and future civil rights cases brought by an individual or group of individuals who has or have been civilly committed to the Minnesota Sex Offender Program are hereby STAYED in all respects, with the exception of Civil No. 11-3659
13

CASE 0:11-cv-03659-DWF-JJK Document 145 Filed 02/06/12 Page 14 of 14

(DWF/JJK) and Civil No. 11-1704 (DWF/JJK), pending resolution of the motion for class certification in Civil No. 11-3659 (DWF/JJK), unless otherwise ordered by the Court.
2. Service. The Clerk of the United States District Court for the District of Minnesota is respectfully directed to provide a copy of this Order, via United States mail, to every unrepresented Plaintiff in all of the cases that are stayed.

Dated: February 6, 2012

s/ Michael J. Davis MICHAEL J. DAVIS Chief United States District Judge

14

 
 CASE 0:11-cv-03659-DWF-JJK Document 177 Filed 06/28/12 Page 1 of 9

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, and Bradley Wayne Foster,
Plaintiffs,
v.
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Greg Carlson, and Ann Zimmerman, in their individual and official capacities,
Defendants.

Court File No. 11-cv-03659 (DWF/JJK)
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

INTRODUCTION
Plaintiffs bring this motion seeking an Order to require Defendants to provide
adequate storage space for legal materials relating to this case and to enjoin the
Defendants from engaging in room searches of the Named Plaintiffs outside the presence of the Named Plaintiffs while this litigation is pending. 1 The Defendants’ policy is to
allow each individual committed to the MSOP three storage bins for their personal items.
1 The Parties in this case have been working diligently and in good faith to resolve the issue of whether or not the Named Plaintiffs can have additional storage space for their legal materials. Although the Parties are continuing to try and resolve these issues, an agreement has not yet been reached. If the issues are resolved prior to the hearing, the Plaintiffs will withdraw this motion.

CASE 0:11-cv-03659-DWF-JJK Document 177 Filed 06/28/12 Page 2 of 9
These bins are kept in the patients’ rooms. Without this restraining order, Plaintiffs are being effectively punished for bringing this litigation as they have to use their limited personal storage space for legal materials while other non-litigant MSOP clients do not have to store such documents. This jeopardizes the Named Plaintiffs’ ability to effectively litigate their case because they may not have sufficient room to store their legal materials without compromising their own personal space.
Furthermore, it is also the Defendants’ policy to prohibit MSOP patients from being present while room searches (either random or for a specific reason) are being conducted. This jeopardizes the Named Plaintiffs’ ability to ensure that their attorney client privileged materials are not being compromised. As such, without this restraining order, the Defendants have unfettered access to the Named Plaintiffs’ legal materials relating to this matter.
Allowing the Named Plaintiffs to have additional storage space in their room permits these Plaintiffs to effectively litigate their cases, while still being treated the same as other individuals committed to MSOP. This is not the same as allowing all litigants extra storage because these Plaintiffs serve as Class Representatives in litigation that affects all individuals committed at MSOP. Additionally, allowing the Named Plaintiffs to be present during the room searches prevents Defendants from being able to review these materials without the Named Plaintiffs’ knowledge. Given the importance of these issues, Plaintiffs’ motion for a temporary restraining order should be granted.
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CASE 0:11-cv-03659-DWF-JJK Document 177 Filed 06/28/12 Page 3 of 9
BACKGROUND This case was originally filed on December 21, 2011 as a pro se case. The undersigned counsel filed a Notice of Appearance on January 20, 2011. Plaintiffs filed an Amended Complaint on March 15, 2012 alleging the following conduct by Defendants: 1) failure to provide treatment, 2) denial of right to be free from punishment, 3) denial of less-restrictive alternatives, 4) denial of right to be free from inhumane treatment, 5) denial of right to religious freedom, 6) unreasonable restrictions on speech and association, 7) unreasonable searches and seizures, 8) the civil commitment statute is unconstitutional as applied, 9) violation of court-ordered treatment, and 10) breach of contract. The Amended Complaint also asserts class allegations and Plaintiffs are seeking to certify a class of “All patients currently civilly committed in the Minnesota Sex Offender Program pursuant to Minn. Stat. § 253B.” The above-named Plaintiffs are all civilly committed pursuant to Minn. Stat. § 253B. They are all being housed at the Moose Lake facility and are subject to the policies of the MSOP. The above-named Plaintiffs are seeking to be the Class Representatives for the proposed class. It is the MSOP’s policy that each individual committed at the MSOP must be able to fit their personal belongings – including correspondence, notebooks and other materials that would presumably constitute litigation materials – into three storage bins which are kept in their rooms. See MSOP Property List policy, Affidavit of Daniel E. Gustafson, Ex. A. Plaintiffs have requested additional storage space to store their legal materials relating to this case. At this time, given that the litigation is still in its early
3
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CASE 0:11-cv-03659-DWF-JJK Document 177 Filed 06/28/12 Page 4 of 9
stages, the storage need is likely not that cumbersome. As the litigation progresses, the need for additional storage may increase. Plaintiffs seek adequate additional storage to allow them to store their litigation materials without having to give up their own personal storage space to do so.
MSOP Policy No. 301.011 governs searches of the Plaintiffs rooms. It states that “All clients of any Minnesota Sex Offender Program (MSOP) facility are subject to search. Searches are only authorized to accomplish the purpose of this policy and will avoid unnecessary force, embarrassment or indignity to the subject. Facilities may create procedures or security procedures to implement this policy.” See Affidavit of Daniel E. Gustafson, Ex. B. The policy further notes that “Staff conducting the search will inform the client(s) that their room will be searched. Clients at programming will be informed of the search upon return to the unit (staff will pat search the client at that time).” Id. The policy also states that “Using standard precautions, staff will pat search the client and move them from the immediate search area.” Id. (emphasis added).
Given Plaintiffs’ role in this litigation as Class Representatives, they have documents in their rooms that contain attorney-client privileged information (including personal notes). As such, Plaintiffs move for a temporary restraining order allowing them to be present in their room at the time of any search (including if the search is a result of a computer generated random search or a search for cause of their roommate) in order to assure that the Defendants to not have access to attorney-client privileged information.
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CASE 0:11-cv-03659-DWF-JJK Document 177 Filed 06/28/12 Page 5 of 9
ARGUMENT The Courts have enumerated the critical showings for a Motion for a Preliminary Injunction as follows: 1) Irreparable injury to the movant; 2) The balance between the injury and the harm that the preliminary injunction
will cause to the other parties; 3) The movant's probability of success on the merits; and 4) The public interest. See Vonage Holdings Corp v. Nebraska Public Service Commission, 564 F.3d 900, 904 (8th Cir. 2009), (quoting Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.3d 109, 114 (8th Cir. 1981)); Stuart Hall Co., Inc. v. Ampad Corp., 51 F.3d 780, 783 n. 2 (8th Cir. 1995), (citing Calvin Klein Cosmetics Corp. v. Lenox Lab., 815 F.2d 500, 503 (8th Cir. 1987)). “The burden of establishing the propriety of an injunction is on the movant.” Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003), citing Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995). “No single factor in itself is dispositive; rather, each factor must be considered to determine whether the balance of equities weighs toward granting the injunction.” United Industries Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998) (citing Sanborn Mfg. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 48586 (8th Cir. 1993), and Calvin Klein Cosmetics Corp., 815 F.2d at 503). Further, the “[f]ailure to show irreparable harm is an independently sufficient ground upon which to deny a preliminary injunction.” Watkins Inc., v. Lewis, 346 F.3d at 844, (citing Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir. 1996)).
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CASE 0:11-cv-03659-DWF-JJK Document 177 Filed 06/28/12 Page 6 of 9
“When there is an adequate remedy at law, a preliminary injunction is not appropriate.” Id. (citation omitted). In addition, “an injunction cannot issue if there is no chance of success on the merits [.]” Mid-America Real Estate Co. v. Iowa Realty Co., 406 F.3d 969, 972 (8th Cir. 2005), (citing Firefighters Local Union No. 1784 v. Stotts, 457 U.S. 561, 589 (1984) (O'Connor, J., concurring), and AM General Corp. v. DaimlerChrysler Corp., 311 F.3d 796, 804 (7th Cir. 2002)).
The Plaintiffs satisfy each of the criteria for a preliminary injunction and as such, this motion should be granted.
1. Irreparable Injury To The Movant Courts have recognized the importance of the attorney-client privilege, which is one of the oldest recognized privileges for confidential communications. Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599, 606 (2009) (citation omitted). The Supreme Court has noted that “[b]y assuring confidentiality, the privilege encourages clients to make ‘full and frank’ disclosures to their attorneys, who are then better able to provide candid advice and effective representation.” Id. (citing Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L.Ed.2d 584 (1981)). The Supreme Court also noted that “[t]his, in turn, serves ‘broader public interests in the observance of law and administration of justice.’” Id. The Eighth Circuit has also recognized the importance of the attorney-client privilege with respect to inmates receiving legal mail. In Cody v. Weber, 256 F.3d 768 (8th Cir. 2001), the Court recognizes that mail from an attorney to an inmate client cannot be opened for inspection outside the inmate’s presence (citing Jensen v. Klecker, 648
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CASE 0:11-cv-03659-DWF-JJK Document 177 Filed 06/28/12 Page 7 of 9
F.2d 1179, 1182 (8th Cir. 1981); Powells v. Minnehaha County Sheriff Dep’t, 198 F.3d 711, 712 (8th Cir. 1999); Thongvanh v. Thalacker, 17 F.3d 256, 258-59 (8th Cir. 1994)).
The MSOP has a similar policy. See Policy No. 302.030 - Client Mail. Mail that is marked as “Legal” may not be opened by MSOP staff outside the presence of the MSOP recipient. This policy is intended to protect the attorney-client privilege by assuring the recipient that the MSOP staff is not reading their privileged communications. The same policy should apply to room searches.
There can be no dispute that the threat of irreparable harm is imminent and real. The Plaintiffs need to have access to their litigation materials and need to space to store such materials in order to effectively litigate their case. As such, they need additional storage in their rooms to accommodate for these documents.
Furthermore, if the Defendants have access to Plaintiffs’ attorney-client communications, the Plaintiffs are at a significant disadvantage. The Plaintiffs cannot determine that their attorney-client communications are not being read if they are not allowed to be present during the search of their rooms. Once the attorney-client privileged information is disclosed, the harm cannot be repaired. There is no amount of money damages that can cure the advantage of knowing the mental impressions or legal strategies of Plaintiffs and their counsel.
2. The Balance Between The Injury And The Harm That The Preliminary Injunction Will Cause To The Other Parties
Given the importance of allowing the Plaintiffs to have access to their litigation materials and, at the same time, protecting attorney-client communications by permitting these Plaintiffs to be present during room searches for the duration of the litigation
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CASE 0:11-cv-03659-DWF-JJK Document 177 Filed 06/28/12 Page 8 of 9
outweighs any extra burden it will place on the defendants to have them present. Plaintiffs are not seeking to prohibit any such searches to occur but are merely seeking to be present while they occur.2
3. The Movant's Probability Of Success On The Merits Plaintiffs have alleged in their complaint that their legal mail gets opened outside the presence of the recipient in violation of their constitutional rights as well as the MSOP policies. Karsjens et al., v. Jesson, et al., 11-CV-0359 (DWF/JSM) (“Karsjens Complaint”) at ¶ 123. Furthermore, Plaintiffs have alleged that the searches of their rooms without being allowed to be present also violate their rights. Id. As such, there is a relationship between the claims in this case and this motion, unlike in the cases of Devose v. Herrington, 42 F.3d 470 (8th Cir. 1994) and Jihad v. Fabian, 2010 WL 1780238, Civ. No. 09-1604 (DSD/RLE) (D. Minn. 2010). Given the recognized importance of attorney-client communications, Plaintiffs’ allegations with regard to violations relating to those communications have a high probability of success. See Cody v. Weber, 256 F.3d 764 (8th Cir. 2002) (recognizing that “[t]he taking of legal papers will often (though perhaps not always) interfere with an inmate’s right of access to the courts). 4. The Public Interest The public interest weighs heavily in favor of granting the preliminary injunction. As recognized by the Supreme Court in Mohawk, “[b]y assuring confidentiality, the
2 If legal documents are allowed to be kept in a separate tote, then Plaintiffs would request that the Defendants search that tote or storage bin in the presence of the Plaintiff.
8
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CASE 0:11-cv-03659-DWF-JJK Document 177 Filed 06/28/12 Page 9 of 9

privilege encourages clients to make ‘full and frank’ disclosures to their attorneys, who

are then better able to provide candid advice and effective representation … [t]his, in

turn, serves ‘broader public interests in the observance of law and administration of

justice.’” Mohawk Industries, 130 S. Ct. at 606.

CONCLUSION

Given the irreparable harm that Plaintiffs will suffer if they cannot effectively

litigate their case and if their attorney client communications are breached as weighed

against the minor inconvenience to Defendants to allow the Plaintiffs to have extra

storage space for legal papers and to be present during these searches, the Court should

grant Plaintiffs’ motion and order that Defendants allow the Plaintiffs to have additional

legal storage space and to be present during any search of their room while this litigation

is pending.

Dated: June 28, 2012

Respectfully Submitted,

s/Daniel E. Gustafson Daniel E. Gustafson (#202241) Karla M. Gluek (#238399) David A. Goodwin (#386715) Raina E. Challeen (#392127) Gustafson Gluek PLLC 650 Northstar East 608 Second Avenue South Minneapolis, MN 55402 Telephone: (612) 333-8844

Attorneys for Plaintiffs

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 CASE 0:11-cv-03659-DWF-JJK Document 151 Filed 03/15/12 Page 1 of 63

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, and all others similarly situated,
Plaintiffs,
v.
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Greg Carlson, and Ann Zimmerman, in their individual and official capacities,
Defendants.

Court File No. 11-cv-03659 (DWF/JJK) FIRST AMENDED COMPLAINT

INTRODUCTION 1. This class action is brought on behalf of individuals civilly committed to the Minnesota Sex Offender Program against Defendants for violations of Plaintiffs’ constitutional, statutory and common law rights to (1) receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary in the least restrictive environment, (2) be free from punishment in violation of those rights, (3) have less restrictive confinement, (4) be free from inhumane treatment in violation of those rights, (5) have religious freedom, (6) have free

CASE 0:11-cv-03659-DWF-JJK Document 151 Filed 03/15/12 Page 2 of 63
speech and association, (7) be free from unreasonable searches and seizures, and (8) be free from an invasion of privacy.
PROCEDURAL BACKGROUND 2. Plaintiffs are all currently civilly committed to the Minnesota Sex Offender Program (“MSOP”) at Moose Lake, Minnesota pursuant to Minn. Stat. § 253B. Several of the patients in MSOP filed federal complaints against various state employees associated with MSOP. The complaints alleged violations of the patients’ civil rights pursuant to 28 U.S.C. § 1983 and other statutes. 3. On January 12, 2012 Judge Frank referred these cases to the Minnesota Chapter of the Federal Bar Association’s Pro Se Project. On January 20, 2012, the undersigned attorneys filed Notices of Appearance in Thompson v. Ludeman, et al., 11CV-01704 (DWF/JJK) and Karsjens et al., v. Minnesota Department of Human Services, et al., 11-CV-0359 (DWF/JSM). 4. On January 25, 2012, Chief Judge Davis issued an Order [Karsjens Dkt. #142] staying all of the pro se MSOP cases with the exception of the Thompson and Karsjens actions pending the resolution of the outstanding Motion for Class Certification filed in the Karsjens case [Dkt. # 24]. On February 6, 2012, Chief Judge Davis issued an Amended Order [Dkt. # 145] applying the stay to additional MSOP cases that were unintentionally omitted from his previous order. 5. On February 8, 2012, Judge Frank issued an Order [Karsjens Dkt. #146] staying the Thompson litigation until further notice, and setting a deadline for filing an Amended Complaint in the Karsjens action by February 29, 2012. On February 29,
2

CASE 0:11-cv-03659-DWF-JJK Document 151 Filed 03/15/12 Page 3 of 63
2012, Judge Frank issued an Order [Karsjens Dkt. # 149], pursuant to the stipulation of
the parties, amending the deadline for filing an Amended Complaint in this action to
March 15, 2012.
NATURE OF THE ACTION
6. Plaintiffs bring this action on behalf of themselves and Class members
alleging violations of their constitutional, statutory and common law rights. Specifically,
Plaintiffs allege that the Defendants, in their official capacity and where applicable, in
their individual capacity, have, among other things:
a. failed to provide adequate treatment to Plaintiffs and Class members in violation of the Fourteenth Amendment to the United States Constitution, the Minnesota Constitution, and the Minnesota Civil Commitment and Treatment Act;
b. denied Plaintiffs and Class members the right to be free from punishment in violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution;
c. denied Plaintiffs and Class members less restrictive alternative confinement in violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution;
d. denied Plaintiffs and Class members the right to be free from inhumane treatment in violation of Fourteenth Amendment to the United States Constitution and the Minnesota Constitution;
e. denied Plaintiffs and Class members the right to religion and religious freedom in violation of the First and Fourteenth Amendments to the United States Constitution;
f. unreasonably restricted the First Amendment rights of free speech and association of Plaintiffs and Class members in violation of the United States Constitution and the Minnesota Constitution;
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g. implemented unreasonable searches and seizures upon Plaintiffs and Class members in violation of the Fourth Amendment to the United States Constitution and the Minnesota Constitution; and
h. invaded the privacy of Plaintiffs and Class members in violation of the Fourth Amendment to the United States Constitution and the Minnesota Constitution.
7. Plaintiffs seek injunctive relief for these constitutional, statutory, and common law violations on behalf of themselves and Class members. Plaintiffs also seek actual or nominal damages based on the Defendants’ actions in their individual capacity to violate Plaintiffs’ constitutional, statutory, and common law rights.
JURISDICTION AND VENUE 8. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331. This Court has supplemental jurisdiction for Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367. Venue in this Court is proper pursuant to 28 U.S.C. § 1391 because the acts and omissions giving rise to these claims occurred in the State of Minnesota and the Defendants all reside in the State of Minnesota.
DECLARATORY AND INJUNCTIVE RELIEF 9. This Court has authority to grant declaratory relief pursuant to 28 U.S.C. § 2201 as an actual controversy exists regarding the rights, privileges, and immunities to which the Plaintiffs are entitled while committed to the care and custody of the State of Minnesota. Pursuant to 28 U.S.C. § 2202, this Court has authority to grant injunctive and other necessary and proper relief.
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PARTIES I. Plaintiffs
10. Plaintiff Kevin Scott Karsjens is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
11. Plaintiff David LeRoy Gamble, Jr. is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
12. Plaintiff Kevin John DeVillion is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
13. Plaintiff Peter Gerard Lonergan is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
14. Plaintiff James Matthew Noyer, Sr., is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
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15. Plaintiff James John Rud is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
16. Plaintiff James Allen Barber is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
17. Plaintiff Craig Allen Bolte is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
18. Plaintiff Dennis Richard Steiner is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
19. Plaintiff Kaine Joseph Braun is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
20. Plaintiff Christopher John Thuringer is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
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21. Plaintiff Kenny S. Daywitt is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
22. Plaintiff Bradley Wayne Foster is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants. II. Defendants
23. Defendant Lucinda Jesson is the Commissioner of the Minnesota Department of Human Services (“DHS”). The DHS is responsible for operating the MSOP. Defendant Jesson, in her individual and official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and Class members.
24. Defendant Dennis Benson is the Executive Director of MSOP and a member of the clinical team. Defendant Benson, in his individual and official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and the Class members.
25. Defendant Kevin Moser is the Director of MSOP. Defendant Moser, in his individual and official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and the Class members.
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26. Defendant Tom Lundquist is the Clinical Director of MSOP. Defendant Lundquist, in his individual and official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and the Class members.
27. Defendant Greg Carlson is the Program Director of the Sexual Predator Program at MSOP and a member of the clinical team. Defendant Carlson, in his individual and official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and the Class members.
28. Defendant Ann Zimmerman is the Security Director of MSOP. Defendant Zimmerman, in her individual and official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and the Class members.
29. In all respects material to this action, all Defendants acted under the color of law and under the color of their authority as officers and employees of the DHS.
30. In all respects material to this action, all Defendants acted within the scope of their employment with the DHS, but exceeded the legitimate scope of their official capacity.
CLASS ACTION ALLEGATIONS 31. Plaintiffs bring this class action on behalf of themselves and the Class members pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure,
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seeking equitable and injunctive relief on behalf of the following class (“Injunctive Class”):
All patients currently civilly committed in the Minnesota Sex Offender Program as a Sexually Dangerous Persons (“SDP”) or as having Sexually Psychopathic Personalities (“SPP”) pursuant to Minn. Stat. § 253B. 32. The Class satisfies the requirements of Fed. R. Civ. P. 23(b)(2) because, as set forth herein, Defendants have acted and/or refused to act on grounds that apply generally to Plaintiffs and the Class members, thereby warranting appropriate injunctive and/or declaratory relief respecting the Class as a whole. 33. Plaintiffs also bring this action on behalf of themselves and the Class members pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure seeking actual or nominal damages for the constitutional, statutory, and common law claims on behalf of the following class (“Damages Class”): All patients currently civilly committed to the Minnesota Sex Offender Program as a Sexually Dangerous Persons (“SDP”) or as having Sexually Psychopathic Personalities (“SPP”) pursuant to Minn. Stat. § 253B who have sustained actual or nominal damages through the actions and omissions of Defendants. 34. Plaintiffs believe the number of Class members in each Class to be in excess of 600 individuals who are currently committed to the MSOP. The exact number and identity of Class members is easily ascertainable from MSOP records. 35. Common questions of law and fact exist as to all Class members. Such questions of law and fact common to the Class members include, but are not limited to: a. Whether Defendants violated Plaintiffs’ and Class members’ Due Process
rights protected by the Fourteenth Amendment to the United States Constitution in the following ways:
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i. by violating Plaintiffs’ and Class members’ rights to such that would give them a realistic opportunity to meet the statutory requirements to be discharged as determined by an appropriate mental health professional and that is within the scope of acceptable mental health treatment;
ii. by failing to provide a less restrictive confinement option; and
iii. by creating an unnecessarily punitive environment;
b. Whether Defendants violated Plaintiffs’ and Class members’ rights to be free from unreasonable searches and seizures as protected by the Fourth Amendment to the United States Constitution;
c. Whether Defendants violated Plaintiffs’ and Class members’ rights to freedom of expression, speech, and religious exercise as protected by the First Amendment to the United States Constitution;
d. Whether Minnesota’s civil commitment laws are unconstitutional as applied to Plaintiffs and Class members;
e. Whether Defendants violated the court ordered treatment of Plaintiffs and Class members; and
f. Whether Defendants’ failure to satisfy their obligations to Plaintiffs and Class members under the Consent for Participation in Sex Offender Treatment constitutes a breach of contract.
36. Plaintiffs’ claims are typical of the claims of the Class members, and
Plaintiffs will fairly and adequately protect the interests of the Class members. Plaintiffs
and Class members are similarly affected by Defendants’ wrongful conduct.
37. Plaintiffs’ claims arise out of the same common course of conduct giving
rise to the claims of the other Class members. Plaintiffs’ interests are coincident with,
and not antagonistic to, those of the other Class members. Plaintiffs are represented by
counsel who are competent and experienced in the prosecution of civil rights and class
action litigation.
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38. The questions of law and fact common to Class members predominate over any questions affecting only individual members, including legal and factual issues relating to liability and damages.
39. Class action treatment is a superior method for the fair and efficient adjudication of the controversy in that, among other things, such treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently and without the unnecessary duplication of evidence, effort and expense that numerous individual actions would engender. The benefits of proceeding through the class mechanism, including providing injured persons with a method for obtaining redress for claims that it might not be practicable to pursue individually, substantially outweigh any difficulties that may arise in management of this class action.
40. The prosecution of separate actions by individual Class members would create a risk of inconsistent or varying adjudications, establishing incompatible standards of conduct for Defendants, and would frustrate the efforts of this Court in efficiently resolving these claims.
41. Proper and sufficient notice of this action may be provided to Class members through actual notice to patients at MSOP via direct mail and also via the MSOP Patient Computer Network, among other methods.
42. Plaintiffs and Class members have suffered harm and actual or nominal damages as a result of Defendants’ wrongful conduct as alleged herein. Absent
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representative action, Plaintiffs and the Class members will continue to suffer losses, thereby allowing Defendants’ violation of law to proceed without remedy.
FACTS I. History of the Minnesota Civil Commitment Statutes
43. Minnesota’s civil commitment statue was first enacted in 1939. That law contained a provision for committing Psychopathic Personalities (“PP”), including those who could not control their sexual impulses and were likely to engage in violent acts. Over the course of the next fifty years, the PP law was used primarily as an alternative to criminal punishment.
44. In 1994, a civilly committed offender successfully challenged his commitment because the “utter lack of control” language in the PP statute conflicted with commitments based upon evidence showing that the offender had planned out an attack. See In re Linehan, 518 N.W.2d 609 (Minn. 1994).
45. In response to that ruling, the Minnesota Legislature called a special session specifically to amend the commitment statute to remove the “utter lack of control” language. Minn. Stat. § 253B.02, subd. 18c(b). That amendment created the Sexually Dangerous Person (“SDP”) and the Sexually Psychopathic Personality (“SPP”) categories under the Minnesota Civil Commitment Act in 1994. Minn. Stat. § 253B.02, subd. 18b and subd. 18c.
46. Pursuant to Minn. Stat. § 253B.02, subd. 18b, a SPP is defined as, “any person of such conditions or emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of
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personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.”
47. Pursuant to Minn. Stat. § 253B.02, subd. 18c., a SDP is defined as “a person who: (1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 7a.” In order to find that a person is an SDP, the state does not have to prove they have an inability to control their impulses.
48. Harmful sexual contact is defined in Minn. Stat. § 253B.02, subd. 7a. as “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” It includes criminal sexual conduct in the first, second, third, and fourth degrees, other crimes where sexual impulses were part of the crime, or where the person’s conduct had criminal sexual conduct as a goal.
49. The Minnesota Civil Commitment Act of 1994 created a deeply flawed program that resulted in the bluntly critical report recently issued by the State of Minnesota Office of the Legislative Auditor (“Legislative Auditor Report”). See Office of the Legislative Auditor, State of Minnesota, Evaluation Report: Civil Commitment of Sex Offenders (March 2011), available at http://www.auditor.leg.state.mn.us/ped/pedrep/ccso.pdf. In that Report, the Legislative Auditor found that Minnesota’s civil commitment scheme for sex offenders suffers from
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major problems, including the fact that it is incredibly costly, lacks reasonable less restrictive alternative confinements, and does not provide adequate treatment to those who are committed to the MSOP. II. The Civil Commitment Process for Sex Offenders in Minnesota
50. In order to be civilly committed to the MSOP, the person must be found to be a SPP or SDP under Minn. Stat. § 253B.185. The Plaintiffs and Class members have all been civilly committed as an SPP, an SDP, or both under this statute. They have all gone through the same civil commitment process.
51. Pursuant to Minn. Stat. § 253B.185, subd. 1(b), civil commitment proceedings are initiated by the county attorney. The county attorney must determine whether good cause exists to file a petition within 120 days of receiving a court’s preliminary determination or a referral from the commissioner of corrections. Determinations on whether to file a petition for commitment vary greatly by geographic area. The average commitments per capita are substantially higher in the southeastern, southwestern, west central and northwestern regions than in the rest of the state. See Legislative Auditor Report at 39.
52. Generally the county attorney files the petition before the person is released from prison or juvenile detention. The petition may also be filed before the person goes to prison as part of a plea bargain. The petition may even be filed after the person has been placed on conditional or supervised release following a prison sentence, even if they have not committed any new sexual offenses. See Office of the Ombudsman for Mental Health and Mental Retardation, Sex Offender Civil Commitment Fact Sheet (Jan. 2004),
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available at http://www.ombudmhdd.state.mn.us/cctrc/sexoffenderccfactsheet.htm (“Sex Offender Fact Sheet”).
53. Minn. Stat. § 253B.08 requires that the petition be considered at a civil commitment hearing within 90 days of when the petition is filed. Pursuant to Minn. Stat. § 253B.07, the court appoints counsel for the person to be committed if necessary. At the hearing, both the proposed patient and the county attorney may call witnesses and examine and cross-examine those witnesses. All relevant evidence is considered including hearsay evidence. The court can consider evidence of past sexual misconduct, even if the person was not convicted of, or even charged with, a crime for that conduct. See Sex Offender Fact Sheet.
54. Unlike the Minnesota civil commitment process for sex offenders, Wisconsin, Washington, Iowa, California, Florida, New Jersey, Illinois, Virginia, Kansas, Missouri, South Carolina, Arizona, North Dakota, and New Hampshire provide for a probable cause hearing prior to proceeding with the commitment process. See Wis. Stat. § 980.04, Wash. Rev. Code § 71.09.040, Iowa Code § 229A.5, Cal. Welf. & Inst. Code § 6602 (1996), Fla. Stat. § 394.195. N.J. Stat. Ann. § 30:4-27.28(f), 725 Ill. Comp. Stat. 207/30, Va. Code Ann. § 37.2-906, Kan. Stat. Ann. § 59-29a05, Mo. Ann. Stat. § 632.489, S.C. Code Ann. § 44-48-80, Ariz. Rev. Stat. Ann. § 36-3705, N.D. Cent. Code § 25-03.311, N.H. Rev. Stat. Ann. § 135-E:7.
55. In Minnesota’s commitment proceedings, the person to be committed does not have the right to a jury trial, so all commitments are decided by a judge. Pursuant to Minn. Stat. § 253B.185, subd. 1(d), if the court finds by clear and convincing evidence
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that the prospective patient is an SPP or SDD under the statutory definition, they will be committed to the MSOP under a court order for sex offender specific treatment. Most other states with similar commitment statutes apply the substantially higher “reasonable doubt” standard.
56. Unlike in Minnesota, states like Wisconsin, Washington, Iowa, Texas, California, Florida, Illinois, Massachusetts, Virginia, Kansas, Missouri, South Carolina, Arizona and New Hampshire provide for trial by jury for the civil commitment of sex offenders at the request of the prosecutor or person to be committed. See Wis. Stat. § 980.05, Wash. Rev. Code § 71.09.060, Iowa Code § 229A.7, Tex. Health & Safety Code Ann. § 841.061, Cal. Welf. & Inst. Code § 6603(a) (1996), Fl. Stat. § 394.196, 725 Ill. Comp. Stat. 207/35, Mass. Gen. Laws Ann. ch. 123A, § 14 (2010), Va. Code Ann. § 37.2-908, Kan. Stat. Ann. § 59-29a06, Mo. Ann. Stat. § 632.492, S.C. Code Ann. § 44-48-90, Ariz. Rev. Stat. Ann. § 36-3706, N.H. Rev. Stat. Ann. § 135-E:9.
57. The population of people civilly committed to the MSOP has grown dramatically since the program was started. In 1990, there were fewer than thirty patients civilly committed as sex offenders. Legislative Auditor Report at 4. That number grew to 149 in 2000 and to 575 in 2010. Id. The Legislative Auditor Report projected that in 2020, there will be 1109 people civilly committed to the MSOP based on the current growth trend in commitments. Id. III. Civil Commitment to the MSOP
58. All civilly committed sex offenders are indefinitely committed to the MSOP, which is a treatment program with secure facilities in Moose Lake, MN and St.
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Peter, MN. The Moose Lake facility houses patients in the first two phases of the treatment program. The St. Peter facility houses patients in the third and final stage of the program.
A. The MSOP Treatment Program 59. MSOP is intended to be a treatment facility. All persons civilly committed as SPP or SDP enter the MSOP treatment program. Currently, the 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. 60. Other states, such as Texas, provide such alternatives. In Texas, all civilly committed sex offenders are part of an outpatient treatment program in which they are subject to constant supervision, GPS monitoring, and intensive treatment. If they fail to meet the conditions of their commitment, they are charged with a felony and must return to prison. See Report at 42-43. 61. Similarly, in Wisconsin, when civilly committed sex offenders progress in treatment to a point where it is substantially probable they will not reoffend, they are placed on supervised release. See Wisconsin’s Sexually Violent Person Law, Chapter 980: Supervised Release Program (Jan. 19, 2012), http://www.dhs.state.mn.us/main/groups/agencywide/documents/pub /dhs16_166453.pdf (last visited Feb. 13, 2012). 62. In New York, civilly committed sex offenders can be immediately placed in an outpatient program called Strict and Intensive Supervision and Treatment in which the patient participates in individualized treatment, has monthly meetings with a case officer,
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and is electronically monitored. See New York Sex Offender Management and Treatment Act: An Overview of NYS Strict and Intensive Supervision and Treatment (SIST) (Jan. 19, 2012) http://www.dhs.state.mn.us/main/groups/agencywide/documents/pub/ dhs16_166450.pdf (last visited Feb. 13, 2012).
63. Upon entering the Moose Lake MSOP facility, all Plaintiffs and Class members are presented with a contract entitled Consent for Participation in Sex Offender Treatment. Each Plaintiff and Class member is required to either sign the portion of the form consenting to receive the treatment MSOP provides according to its treatment program and policies, or sign the portion of the form stating they refuse to participate in sex offender treatment. Each Plaintiff and Class member is then supposed to be evaluated and given an individual treatment plan.
64. The MSOP treatment program is broken out into three phases. In Phase I, patients must learn how to comply with the MSOP facility’s rules and learn basic treatment concepts. In Phase II, patients must discuss and work through their sexual offenses and patterns of sexual abuse. In Phase III, which takes place at the St. Peter facility, the program focuses on community reintegration. This third phase consists of MSOP Supervised Integration, in which patients live in a secure area within the St. Peter Facility. Patients may take accompanied outings off campus, and Community Preparation Services, in which patients live on campus in a house that is not within the secure perimeter. Throughout Phase III, patients are electronically monitored.
65. According to the MSOP treatment protocol, Plaintiffs and Class members should move through the phases of the treatment program by following their individual
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treatment plans, participating in treatment, completing treatment assignments, and showing they have changed their thinking and behavior. Their progress is to be reviewed quarterly and annually.
66. The MSOP treatment program was designed to be completed within four years. As of January 1, 2012, 64% of MSOP patients were in Phase I, 24% were in Phase II, and 12% were in Phase III. Additionally, 75% of MSOP patients have been civilly committed to the MSOP for between three years and ten years or more. It was not until February of 2012 that the first patient in the history of the MSOP was deemed to have completed the treatment program, after commitment to the program for more than 18 years, and be ready for provisional discharge. That patient is required to attend regular therapy as a provision of his discharge.
B. Changes to MSOP Policy Since 2008 67. In or around March of 2008, Defendant Dennis Benson resigned his position as the Minnesota Deputy Commissioner of Corrections (“DOC”) and was named Executive Director of the MSOP by the DHS. It is unclear whether Mr. Benson has any actual expertise or past experience operating or managing a treatment facility. 68. Mr. Benson has hired a number of employees directly from the Minnesota DOC to work for the MSOP including Kevin Moser, Gregg Carlson, Timothy Gorr, Jim Berg, and Erick Skon. 69. Since Mr. Benson took over the role as the Executive Director of the MSOP, he has implemented new policies that restrict many of the rights previously enjoyed by Plaintiffs and Class members. He also changed the MSOP to meet the
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standards of a maximum security prison facility. Examples of those policy changes include punishment and abuse of Plaintiffs and Class members through threats, restricted visitation, restricted property rights, censored mail, monitored calls, restricted personal physical movement, unreasonable searches, and discipline without due process of law.
70. Most policies and procedures implemented since the hire of Mr. Benson have been adopted directly from the DOC. Some of those policies include: Use of Force, Office of Special Investigations, Intelligence Information Gathering, Evidence Policy Behavioral Expectation Reports (BERs), Client Grievances, Client Request Policy, Visiting Behavioral Expectations, Mail Policy, and Property Policy.
71. Nearly every policy and procedure implemented since Mr. Benson began at the MSOP in 2008 goes beyond the scope of what is necessary for treating Plaintiffs and Class members in a therapeutic manner based on professional judgment in a safe environment and instead was enacted for staff convenience. None of these restrictions were necessary prior to 2008 to maintain control or security of the facility. The restrictions and changes have created a hostile environment that encourages a sense of hopelessness, powerlessness, and fear among Plaintiffs and Class members. The Legislative Auditor Report stated, “In the absence of clinical leadership when the current administration took over MSOP in 2008, some policies were put into place without adequate consideration for the effect those policies would have upon the therapeutic environment.” Legislative Auditor Report at 68.
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C. Problems with the MSOP as Implemented 72. The Legislative Auditor Report found that one factor that may explain why there has never been a discharge from the program is that “problems in the treatment program over the last ten years have likely affected the progress of some sex offenders.” Legislative Auditor Report at xxi. 73. The Legislative Auditor Report also found that patients get stuck in Phase I of the program, which focuses on following rules and learning how to participate in treatment groups rather than addressing the patient’s sexual offenses or how to prevent re-offending. This may be because the MSOP does not promote “positive treatment participation.” Legislative Auditor Report at 64. 74. Frequent leadership changes at MSOP have also contributed to issues with the treatment program that have resulted in the Plaintiffs and Class members remaining in the early stages of treatment. The MSOP has had three executive directors and four executive clinical directors over the last eight years, resulting in regular and substantial changes to the treatment program. This turnover has led to inconsistent treatment being provided to Plaintiffs and Class members, and Plaintiffs and Class members being forced to unnecessarily repeat treatment modules. For example, although individualized treatment plans and reviews are performed for each patient, they have become less specific and detailed than they were in the past. The Legislative Auditor Report found that the treatment plans and reviews did not give the patients a clear idea of what they need to do to advance through treatment and that clinicians did not explain how they came to conclusions about patients. Legislative Auditor Report at 73. In fact, Plaintiffs
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and Class members draft their own treatment plans for approval by clinicians instead of clinicians directing treatment to Plaintiffs and Class members.
75. The Legislative Auditor Report also found that “the amount of treatment delivered at MSOP facilities is lower than at any other adult inpatient sex offender treatment program in the state.” Legislative Auditor Report at 62. Therefore, the state’s highest risk individuals receive the least amount of treatment. When compared to other programs across the country, MSOP “is at the low end of the range of treatment hours considered to be best practices for sex offender civil commitment programs.” Id. at 64.
76. Indeed, “[m]ost of Moose Lake clients’ time is unstructured.” Id. at 65. As of November 2010, clients who were participating in treatment at Moose Lake received on average six hours of group therapy a week. Legislative Auditor Report at 62. Roughly half of clients sampled in the Report received additional psycho-educational modules for an hour and a half per week. Id.
77. Plaintiffs and Class members are provided as little as one hour a week in support groups. Requests for additional frequent and intensive treatment are routinely denied.
78. In contrast, the DOC, in facilities that are not primarily for treatment, provides between 9 and 10.5 hours per week of group therapy and psycho-educational classes for its sex offender treatment. Privately operated Alpha Human Services, which provides a comparable type of treatment to MSOP, provides at least 16 hours per week. Legislative Auditor Report at 50.
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79. The MSOP has clinical staff present at the Moose Lake facility for only eight hours a day and only on weekdays. From 4:30 p.m. to 8:00 a.m. on weekdays and all day on weekends and holidays there is no clinical or treatment staff present at the facility. Plaintiffs and Class members are locked in their cells for a minimum of ten hours per day.
80. Defendants have not provided Plaintiffs or Class members treatment by a psychiatrist or licensed clinical psychologist trained, qualified, certified, or licensed to provide meaningful treatment to a SDP or SPP. Defendants and employees treating Plaintiffs and Class members at MSOP are not qualified, certified or licensed to treat sex offenders. As the Legislative Auditor Report identified, MSOP has initiated efforts to improve therapist training, but currently, “some clinicians were formerly security staff, with backgrounds in criminal justice. Some have only a high school diploma.” Legislative Auditor Report at 61. Only since 2010 has MSOP required new clinicians to have master’s degrees and be licensed or license-eligible.
81. The Legislative Auditor Report found that the MSOP has also had difficulty filling clinical supervisor positions at Moose Lake, and that as a result, has had problems ensuring that the treatment program is being implemented consistently. Legislative Auditor Report at 60.
82. General clinical understaffing has also been a persistent problem. The Legislative Auditor Report found that clinician caseloads are too high, which has “affected the ability of the program to deliver treatment to clients.” Legislative Auditor Report at 60-61. The clinical director told the Legislative Auditor that the goal is to have
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eight patients per clinician but that some clinicians at Moose Lake have up to 25 patients. This understaffing has resulted in poor treatment. The Legislative Auditor Report states that “In general, we observed that files in recent years (since 2008) tended to have much less detail than those from previous years, suggesting that clinicians either did not have time to fully document client behaviors or be fully aware of client behaviors relevant to treatment.” Id. Such deficient record keeping impedes Plaintiffs and Class members’ progress in the program.
83. In 2009, psycho-educational modules at Moose Lake were completely suspended for three quarters due to staff vacancies. There was also a time when MSOP did not give any treatment for eight to ten days between trimesters so staff could complete paperwork. This totaled to about a month per year where no treatment was provided to Plaintiffs and Class members. Id. at 73-74.
84. By any measure, the MSOP is not providing Plaintiffs or Class members with a therapeutic environment. The Legislative Auditor Report stated, “Historically and currently, the program [at MSOP] has struggled to create an environment that fosters client rehabilitation. Outside advocates and experts, MSOP clients, and some MSOP staff have complained that, historically and currently: (1) some MSOP staff held disrespectful, negative, punitive, and untherapeutic attitudes towards clients; and (2) that the culture at the facilities was counter-therapeutic.” Id. at 66.
85. Plaintiffs and Class members who suffer from depression and other emotional disorders are routinely punished for manifesting behaviors associated with the disorder with which they have been diagnosed. Defendants have failed or refused to
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provide medications to help deal with these emotional management disorders. Additionally, Defendants have refused or failed to make any appropriate psychiatric or psychological treatment available to Plaintiffs and Class members.
86. MSOP is not, and has never been, accredited by any independent medical accreditation society that may provide objective guidance on standards of professional care being exercised in their facilities, such as the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).
87. Plaintiffs and Class members are not billed for individualized care. Instead, they are billed a per diem rate regardless of the individual treatment or individual costs. There are many levels of care and many varying levels of cost, depending upon the programming the patient receives or otherwise requires. Yet all of the Plaintiffs and Class members are charged at one daily rate regardless of individual needs. That daily rate is currently $317 per day.
88. For patients who have health insurance coverage, the billing system is ineffective. Plaintiffs and Class members who have health insurance cannot use that coverage to pay the costs associated with the MSOP. This is because the MSOP does not follow the accepted billing procedures, is not accredited and otherwise does not meet the standards of recognized mental health care. In other words, Plaintiffs and Class members who are civilly committed as mentally ill to the MSOP are receiving such deficient treatment, under such poor conditions, that it cannot be paid for through health insurance coverage.
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D. Discipline and Punishment 89. In addition to the lack of treatment, Defendants have subjected Plaintiffs and Class members to disciplinary and punitive policies, practices, and procedures during their civil commitment to the MSOP, particularly since Mr. Benson became Executive Director and implemented new policies, procedures and practices. 90. The main disciplinary tools used at the MSOP are Behavior Expectation Reports (“BER”). Plaintiffs and other Class members are expected to follow the Behavioral Expectations Handbook. The current handbook was issued in 2009 and updated in 2011. It contains descriptions of behavioral violations, consequences, and a disciplinary procedure for BERs. 91. Defendants categorize behavioral violations as either Minor Rule Violations or Major Rule Violations. However, the handbook is not clear about what constitutes a minor or major rule violation and what the disciplinary consequences are for different violations. 92. Minor Rule Violations are defined as those that violate facility policy or procedure but that MSOP staff does not believe places anyone in immediate danger or present management difficulties. As a result of a Minor Rule Violation, Plaintiffs and Class members may be limited from using or fully restricted from using the area or items involved in the violation. 93. Major Rule Violations are those that MSOP staff determine jeopardize the safety of others or present significant management difficulties. This would include behavior such as possession of contraband or interfering with security procedures. As a
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result of a Major Rule Violation, Plaintiffs and Class members may be required to stay in their cell with the exception of a ten minute window each hour and be fully restricted from a long list of areas including the outer yard, the gym, the library, unit electronics, work for pay assignments, visits with friends or family, and the unit common area.
94. Other behavior that the handbook classifies as violating MSOP rules includes a patient signing up for an activity and not attending that activity, a patient attending an activity that he had not signed up for, dress code violations, loitering in the halls or other common areas, or leaving the lights on in a cell.
95. MSOP staff does not consistently apply the Behavioral Expectations Handbook to Plaintiffs and Class members. As a result, Plaintiffs and Class members are unable to determine what level of punishment or restriction they should expect for any given rule violation or behavior.
96. If MSOP staff believes a Plaintiff or Class member has violated a rule, they issue a redirect or a minor or major BER. A redirect is a request from MSOP staff that the Plaintiff or Class member alter their behavior. It is supposed to be removed from the Plaintiff or Class member’s record after 45 days, however, that is often not the case. If the offending behavior persists, the staff may then issue a BER. After receiving a BER, the Plaintiff or Class member can request a review of the BER itself and the restrictions imposed. The BER hearing panel consists of MSOP employees from various areas of treatment including clinical, security, and programming. The hearing board is not impartial or objective and the hearing process is a sham.
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97. At the BER hearing, Plaintiffs or Class members are not allowed to present evidence, cross examine witnesses, or face their accusers. Plaintiffs or Class members are not given copies of the incident reports or other evidence that is being used against them to impose disciplinary restrictions.
98. A Plaintiff or Class member may only appeal the hearing panel’s decision to the MSOP Facility Director. However, most of the policies and procedures complained of by the Plaintiffs and Class members are implemented by the Director, suggesting a less than impartial appellate process.
99. The clinical team and vocational services utilize Individual Treatment Plans and Treatment Memos to issue further discipline and restrictions on Plaintiffs and Class members. Vocational services will often remove a Plaintiff or Class member from the vocational Work for Pay Program or reduce the amount of hours he is entitled to participate as a result of receiving a BER.
100. Receiving BERs directly affects a patient’s progression in treatment. Disciplinary restrictions cause at least a six month delay in progression in treatment.
101. The High Security Area (“HSA”) is also used as a disciplinary measure at MSOP. HSA is essentially solitary confinement. Plaintiffs and Class members are held in HSA when MSOP staff determines they need to be placed on Protective Isolation Status.
102. Plaintiffs and Class members can be placed in HSA until MSOP staff determines they have regained behavioral control. While in HSA, Plaintiffs and Class members are only allowed out of their cell for one hour per day.
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103. Plaintiffs and Class members are kept in HSA much longer than is necessary, and it is used as a punitive measure rather than a behavioral control measure.
104. Other punitive policies and practices in place at MSOP by Defendants include:
a. punishing Plaintiffs and Class members by denying access to group therapy;
b. intentionally and unnecessarily, delaying delivery of mail to Plaintiffs and Class members;
c. unreasonably restricting Plaintiffs’ and Class members’ access to, and conduct during, visitation;
d. restricting Plaintiffs’ and Class members’ access to both a regular library and a law library;
e. denying Plaintiffs’ and Class members’ access to recreational activities and exercise;
f. restricting what can be purchased by Plaintiffs and Class members from the inmate store;
g. denying Plaintiffs and Class members educational programming; h. denying Plaintiffs and Class members any meaningful employment
opportunities; i. permitting MSOP staff to punish Plaintiffs and Class members by
denying them employment; j. denying Plaintiffs and Class members access to hobbies; k. restricting the time Plaintiffs and Class members are allowed access
to the yard; l. allowing staff to punish Plaintiffs and Class members by denying
them access to the yard or to the gym;
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m. allowing staff to punish Plaintiffs and Class members by locking them in their cell;
n. punishing Plaintiffs and Class members by removing furniture;
o. executing security checks every half hour by knocking loudly and disruptively on the cells of Plaintiffs and Class members;
p. creating a patient disciplinary board for Plaintiffs and Class members that does not follow constitutional standards of due process;
q. creating policies that, as implemented, supersede statutory rights provided to Plaintiffs and Class members under the Patient Bill of Rights;
r. taking away the basic life skills of allowing Plaintiffs and Class members to manage their personal financial affairs;
s. taking away the right for Plaintiffs and Class members to visit each other’s cells;
t. taking away the right to drug and alcohol treatment for Plaintiffs and Class members;
u. denying Plaintiffs and Class members the right to greet and shake hands with other peers in treatment;
v. denying Plaintiffs and Class members the right to share food and other items with others; and
w. denying Plaintiffs and Class members the right to wear certain clothes such as hats, bandanas, and muscle shirts, within the confines of their own living units.
E. Non-Therapeutic Environment
105. The policies, procedures, and practices of Defendants have led to a non-
therapeutic environment in the MSOP.
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1. Physical Layout of the Secure Facility 106. The MSOP facility at Moose Lake is laid out exactly like state prisons with cell units facing into a central courtyard where Plaintiffs and Class members may be observed from one central station. MSOP staff wears police-style uniforms. The newly designed and constructed living unit, Complex One, is designed just like a correctional facility. The Legislative Auditor Report confirmed that it was not designed with therapeutic goals in mind. Legislative Auditor Report at 68. 107. Despite the well documented concerns regarding the difficulty of fostering a therapeutic environment in the current facility at Moose Lake, MSOP is currently planning an expansion that will create a second building identical to Complex One. 108. Mail and kitchen facilities at the Moose Lake facility have not been expanded since the program was originally started. Therefore, a facility that was designed for 130 patients is now required to serve over 400 patients. Those limited facilities have resulted in inadequate meal and mail service for Plaintiffs and Class members.
2. Cell Conditions 109. In 1994, MSOP was operating in a hospital setting. Patients had individual rooms with their own mattress, bed, dresser, desk, and storage. Private bathrooms were available and toilets were not in the rooms. Patients were not locked in their rooms. 110. In the past, patients could purchase video game systems, televisions, word processors, and furniture from any vendor. Currently, Plaintiffs and Class members must make canteen purchases for over the counter medications, food, and hygiene products through MINNCOR, which is the exclusive vendor for MSOP. This results in excessive
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prices for purchases. In the past, patients could buy, sell, or trade with other patients upon approval from that patient’s treatment team.
111. When Complex One was constructed, the MSOP obtained waivers from the Minnesota Department of Health so it would not have to comply with statutorily required living standards for state hospitals. The waivers allowed the MSOP facility at Moose Lake to have things like the springless beds, smaller cells with inadequate space between beds, inoperable windows in cells, smaller windows in cells, and a more prison-like setting as opposed to a home-like environment.
112. This resulted in the current cells Plaintiffs and Class members reside in. Plaintiffs and Class members are double bunked in 9.5 x 15 ft. wet cells consisting of two metal bed frames with springless mattresses that are only 30 inches apart, small stainless steel desks, and a stainless steel toilet/sink combination unit fixed into the cell.
113. Cell doors are metal and only have a small viewing window. The two windows in each cell are only five inches wide. The only privacy when using the toilet is a movable screen. The only storage Plaintiffs and Class members are allowed are three storage lockers that must fit under the bed.
114. Plaintiffs and Class members are locked in these cells every day from at least 9:45 p.m. until 6:25 a.m. Prior to Mr. Benson becoming Executive Director, lock-in was contingent on a patient’s progression in treatment.
3. Double Bunking 115. Most Plaintiffs and Class members are double-bunked with another civilly committed sex offender. This double bunking has led to increased physical and sexual
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assaults. See Goldhammer v. Rose, et al., 11-CV-00852 (JNE/JJK) (April 4, 2011). In Goldhammer, the plaintiff was a patient at MSOP in Moose Lake. Despite both the plaintiff and his assailant warned MSOP staff of an impending sexual assault on Goldhammer, due in part to double bunking, Goldhammer was physically and sexually assaulted in his cell by his substantially larger bunkmate. At least one other lawsuit regarding an assault in a double-bunked cell at MSOP is pending.
116. If MSOP patients are dangerous threats to society, double bunking Plaintiffs and Class members in locked cells with a known dangerous individual is inherently unsafe.
4. Searches 117. Defendants perform unwarranted and unreasonable searches of Plaintiffs’ and Class members’ persons, property, and living quarters at MSOP. 118. Currently, Plaintiffs and Class members are subject to unwarranted pat searches of the body, unclothed body searches, and body cavity searches without reasonable suspicion being established. Plaintiffs and Class members may be pat searched or wand searched at any time for no reason including whenever leaving the craft room in recreation, the visiting area or vocational work areas. 119. In the past, patients were not subject to strip searches. Plaintiffs and Class members are now subject to strip searches upon entry to the HSA, regardless of the incident that led to being placed in the HSA. When a Plaintiff or Class member refuses to comply with a strip search, the facility staff will forcibly cut off his clothing and physically inspect his groin area and buttocks.
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120. Plaintiffs and Class members are also subject to strip searches any time they leave or re-enter the secure perimeter of the MSOP facility. For example, if they are suffering from a medical emergency and need to go to the hospital, the Plaintiff or Class member will be strip searched prior to being allowed to get in a waiting ambulance. The Plaintiff or Class member is then strip searched again when they return to the secure MSOP facility, even though two MSOP security guards accompany Plaintiffs and Class members the entire time they are outside the secure facility.
121. Plaintiffs and Class members are also subject to regular random cell searches. These cell searches are used as a punitive exertion of authority on Plaintiffs and Class members. Plaintiffs and Class members are not allowed to observe the searches or be present during their performance. No meaningful process exists to oppose the searches or appeal the resulting arbitrary confiscation of Plaintiffs’ and Class members’ property.
122. In addition to pretextual random cell searches, Plaintiffs and Class members are subject to daily “window checks” of their cell. Defendants claim the purpose of these searches is to physically inspect windows in the patients’ cells. The reinforced glass windows are roughly five inches wide and recessed into the wall over a foot. The windows do not open. Although the stated reason for the window checks is prevention of escape, it is not possible for a person to fit through the window opening even if the reinforced glass could be broken. The true function of the window checks is to allow guards to enter the cells of the Plaintiffs and Class members and perform regular, unwarranted searches of the cells.
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123. The following policies, procedures, and practices related to searches
performed by Defendants are also unreasonable:
a. the policy of routinely searching the contents of Plaintiffs’ and Class members’ incoming and outgoing mail;
b. the policy and practice of opening and reviewing Plaintiffs’ and Class members’ mail that has been clearly marked as legal correspondence;
c. performing strip searches on Plaintiffs and Class members after visitations, despite the excessive monitoring and conduct regulations during visitation;
d. strip searching and shackling Plaintiffs and Class members during transportation outside the secure perimeter by MSOP personnel;
e. conducting random, unreasonable, and unwarranted searches of Plaintiffs’ and Class members’ quarters, property and persons;
f. monitoring Plaintiffs’ and Class members’ telephone calls;
g. constant monitoring of Plaintiffs’ and Class members’ every action and conversation;
h. requiring a staff person to be present during visits between medical providers and Plaintiffs and Class members;
i. monitoring Plaintiffs and Class members when they are speaking with clergy or other religious volunteers;
j. forcing Plaintiffs and Class members to buy from approved vendors only, even though staff check all incoming mail; and
k. allowing staff to shakedown Plaintiffs’ and Class members’ cells at any time.
5. Physical Restraints
124. In the past, patients were allowed to leave the facility with a staff escort and
without physical restraints. Patients could move freely about the compound and socialize
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with other patients at MSOP. Patients were not locked in their rooms at night. Patients could shop at local stores, cook food on stoves and barbeques, run their own businesses, carry cash, and conduct personal banking.
125. Since Mr. Benson took over MSOP in 2008, the restrictions on movement at the MSOP facilities are identical to a maximum security correctional facility.
126. When Plaintiffs and Class members leave the secure facility they are placed in handcuffs, leg irons and a black box, complete with waist-chain. They are then pushed in a wheel chair to the transport vehicle where they are placed into a small cage inside the van. They are subject to these same restraints when they suffer a medical emergency and need to leave the secure facility via ambulance.
127. Plaintiffs and Class members cannot ever move freely around the facility. The only time they can move around an area as they wish is when they are locked on their designated living unit.
128. The physical restraint policy is impermissibly applied across the board to Plaintiffs and Class members. No consideration is given to the individualized security risk that a patient poses.
6. Inadequate Medical Treatment 129. Defendants do not provide adequate medical treatment to Plaintiffs and Class members. 130. MINNCOR is the exclusive provider of all over the counter and prescription medications at MSOP, which may result in a delay in providing necessary
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medication to Plaintiffs and Class members, particularly if a prescription is ordered from a facility outside of MSOP.
131. Defendants do not provide necessary insulin and other diabetic management care to the Plaintiffs and Class members with diabetes. Defendants do not seek professional medical assistance outside of MSOP Health Services for conditions like salmonella and hammer toes. The medical care provided for those conditions by MSOP Health Services has resulted in Plaintiffs and Class members suffering lasting negative effects.
7. Personal Property 132. Plaintiffs and Class members may no longer possess personal computers, laptop computers, and computer software or storage of any kind. Plaintiffs and Class members may not access printers, copiers, scanners, or the internet. This further isolates the Plaintiffs and Class members as they may not pursue educational opportunities, engage with the outside world, or communicate with friends and family. 133. Plaintiffs and Class members are forced, at their own expense, to mail property that MSOP deems contraband outside the facility or the property is destroyed. 134. If Plaintiffs and Class members possess property that is considered contraband, such as books and movies that are not on the approved media list, that property is confiscated. Plaintiffs and Class members may then submit a request to appeal the denial of their property, but such requests take MSOP ten business days to handle. By the time that request has been processed, the property has been destroyed. Plaintiffs and Class members must submit at least two requests before they may file a grievance, which
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is well beyond the ten day period. The process to appeal the confiscation and destruction of property is not only overly burdensome, it is futile.
135. Plaintiffs’ and Class members’ personal computers were removed from the MSOP in 2008 after Mr. Benson started his tenure. A patient network was established with four computers per 96 patients to perform word-processing and other simple tasks. The MSOP seized all removable media such as floppy disks and CD-ROMs and have instructed Plaintiffs and Class members that they will have to print their electronic files instead of allowing them to save files on electronic media to send to courts, attorneys, or family. This restriction is very burdensome on Plaintiffs and Class members because their only storage space is in the three lockers under their bed.
136. Plaintiffs and Class members have been denied and restricted from using or accessing the internet even though no individual reasonable suspicion has ever been established to warrant the restriction. The MSOP also already possesses the commercial software necessary to monitor an Internet Server, which is currently online for employees of the MSOP
137. Completely preventing Plaintiffs and Class members from accessing the internet further isolates them from the world because they are not able to pursue online educational or employment opportunities or even communicate with friends and family via e-mail.
8. Visitation 138. Patients use to be afforded liberal visitation policies, with visiting hours daily from 1-9 pm. Visitors were allowed to prepare food or order food to be delivered
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for consumption with patients. Contact between visitors and a patient was broadly permissible – hand holding, hugging, and holding children were all accepted. Visitors could drop off gifts and groceries on their visits with patients.
139. Currently, visitation is limited to Wednesdays through Sundays from 12:30 p.m. to 8:30 p.m. Visitors must now be pre-approved for visitation, submit to a criminal background check and submit to a pat search. Contact between Plaintiffs and Class members and a visitor is limited to one hug at the beginning and end of each visit. Smoking is not permitted during visitation and no food is allowed during visits. Plaintiffs and Class members are strip searched after visitation. MSOP routinely denies access to visitors and limits the size of a Plaintiffs’ and Class members’ visiting list as well as the number of visitors at one time.
140. The current visitation practices greatly discourage visitation and serve to further isolate Plaintiffs and Class members and hinder their therapeutic progress.
9. Employment Options 141. Plaintiffs’ and Class members’ vocational work assignments are limited to menial labor. Plaintiffs and Class members must perform janitorial maintenance work on their living unit to progress in treatment or receive vocational placement. Many do not have access to facility jobs which would allow the Plaintiff or Class member to be more employable upon re-entering society such as plumbing, electrical, HVAC or any other vocational programs which would afford them meaningful job skills.
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142. Regardless of a Plaintiff or Class member’s previous college degree or age, he must maintain certain educational qualifications to hold a vocational work assignment or advance in treatment.
143. The Legislative Auditor Report agrees with Plaintiffs’ assertions that employment and education opportunities at MSOP are lacking, finding that “there are limited work opportunities for clients” and that “[m]ost of Moose Lake clients’ time is unstructured.” Legislative Auditor Report at 65. Although the amount of time that a patient may work is limited by their progress in treatment, the upper limit of time working is 24 hours in a two week pay period. “Few, if any, clients are scheduled the maximum amount of work hours.” Id.
144. Vocational programming jobs at the MSOP pay minimum wage, however Plaintiffs and Class members are only given half that amount as wages by the MSOP. They are not provided an accounting of the remainder of their wages.
145. The need for employment opportunities is especially pressing given the fact that Plaintiffs and Class members are billed over $100,000 a year for their treatment. Those bills accrue until the Plaintiff or Class member is released from MSOP.
10. Inadequate Diet 146. The diet for Plaintiffs and Class members must provide, at a minimum, the Recommended Daily Dietary Allowances established by the National Academy of Sciences. In developing such menus, the MSOP must utilize the moderate cost food plan of the United States Department of Agriculture.
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147. MSOP cannot spend less per patient for raw food, including donated food, than the most recent per person costs of the Moderate Cost Food Plan for the Northern Region of the United States, as compiled by the United States Department of Agriculture, for appropriate grouping of residents, discounted for any savings which might result from institutional procurement of such food.
148. The MSOP food contractor CWF continually shortens meals or simply does not deliver what is on the menu. Meals are poorly prepared and in some cases handled without due care, which has led to illness. Food proportions are rationed out at a lesser degree then what the menu states due to the practice of equating food volume with weight. The food Defendants provide to Plaintiffs and Class members is of extremely poor quality and includes by-product meat and old fruits and vegetables.
11. Communication and Media Restrictions 149. MSOP charges Plaintiffs and Class members exorbitant rates for using telephones. Currently, Plaintiffs and Class members are charged approximately 32 to 39 cents a minute to use the phone. The MSOP phone system is the only phone system Plaintiffs and Class members are allowed to use. 150. Plaintiffs and Class members are not allowed to use 800 numbers to conduct business. Calling cards are prohibited. Plaintiffs and Class members are very limited in the number of phone calls they are allowed to make. 151. The extremely high rates Plaintiffs and Class members are charged serve no therapeutic or security purpose.
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152. Defendants limit which magazines and newspapers the Plaintiffs and Class members can read. They also censor and remove certain articles and sections of the newspapers that are given to the Plaintiffs and Class members to read.
153. Defendants also have an unofficial policy of keeping Plaintiffs and Class members who have filed lawsuits against MSOP or MSOP personnel separate from other Class members who have not filed lawsuits.
12. Religious Restrictions 154. Defendants monitor Plaintiffs and Class members when they speak to clergy and religious volunteers, even though they have been screened by MSOP staff upon entry to the facility. They also monitor Plaintiffs and Class members during religious services. 155. Defendants do not provide Plaintiffs and Class members Kosher or Halal meals. Plaintiffs and Class members cannot wear yarmulkes, kufis, or religious medallions and pendants unless they are in their cells or at a religious service. 156. Plaintiffs and Class members are only allowed five religious items in their personal property, and Defendants limit the types of religious items Plaintiffs and Class members may have. 157. Defendants only allow Plaintiffs and Class members to have religious feasts once a year, despite the fact that Plaintiffs and Class members have offered to pay for those feasts.
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IV. Release from Civil Commitment to MSOP 158. The only way the Plaintiffs and Class members can be released from their
civil commitment to the MSOP is through the statutory process for a reduction in custody.
159. Petitions for a reduction in custody must be filed with and considered by a panel of the special review board (“SRB”). The MSOP gives the SRB documents from the Plaintiffs’ and Class members’ records including the commitment order and any appeals, all prior SRB or judicial appeal panel findings, and relevant treatment information such as quarterly and annual reviews.
160. The recommendation of the SRB must be sent to the judicial appeal panel, which is composed of three judges and four alternate judges selected from among all active state judges. Decisions made by the judicial appeal panel are appealable to the Minnesota Court of Appeals within 60 days of the panel’s decision. No reduction in custody occurs without a majority approval of the judicial appeal board.
161. Pursuant to Minn. Stat. § 253B.185, subd. 11b, factors that are considered by the judicial appeal panel when deciding if transfer out of the secure treatment center is appropriate are: (1) the patient’s clinical progress and present treatment needs, (2) how necessary a secure facility is for continuing treatment, (3) the need for continued institutionalization, (4) what facility will best meet the patient’s needs, and (5) whether the transfer can be done while still providing for public safety. An example of a transfer would be moving a patient from the secure MSOP facility in Moose Lake to the MSOP facility in St. Peter, where the later phases of the treatment program occur.
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162. Pursuant to Minn. Stat. § 253B.185, subd. 12, the factors that are considered when deciding if provisional discharge is appropriate are: (1) whether the patient’s course of treatment and present mental status indicate there is no longer a need for treatment and supervision in the patient's current treatment setting, and (2) whether the conditions of the provisional discharge plan will provide a reasonable degree of protection to the public and will enable the patient to adjust successfully to the community.
163. Pursuant to Minn. Stat. § 253B.185, subd. 18, a patient is not completely discharged from MSOP unless “it appears to the satisfaction of the judicial appeal panel, after a hearing and recommendation by a majority of the SRB, that the patient is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.” The SRB and judicial appeals panel consider whether the public will be safe and whether the patient will be able to readjust to living in the community.
164. As of February 2012, only two MSOP patients had ever been placed on any kind of provisional discharge. One of them had his provisional discharge revoked after violating its conditions, and the other was only recently granted provisional discharge.
165. In contrast, as of 2006, the following other states with civil commitment programs had placed the following number of people on supervised or conditional release: Arizona- 69, Illinois- 18, Wisconsin- 17, Washington- 12, Florida- 12, Kansas- 8, New Jersey- 8, Iowa- 4, California- 3, and Virginia- 3. As of 2006, the following other states with civil commitment programs had fully discharged the following number of
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people: Arizona- 81, California- 59, South Carolina- 32, Wisconsin- 26, New Jersey- 13, Kansas-13, Iowa- 9, Florida- 7, Washington- 4, Massachusetts- 4, Illinois- 2, and Virginia- 1. Monica Davey and Abby Goodnough, Doubts Rise as States Hold Sex Offenders After Prison, N.Y. Times (March 4, 2007), available at http://www.nytimes.com/2007/03/04/us/04 civil.html?pagewanted=1&_r=1&adxnnlx= 1329498616-AcmZtJ1J58oxOsZDKbLw6Q (last visited Feb. 16, 2012).
166. MSOP clinicians believe Plaintiffs and Class members are not being released because of public pressure to keep civilly committed sex offenders in a secure facility. Legislative Auditor Report at 87. Additionally, Governor Pawlenty issued an executive order in 2003 stating that no sex offenders could be released without a court order. Thus, the decision not to release Plaintiffs and Class members from the MSOP is based on political considerations, not professional judgment.
CLAIMS Count I Failure to Provide Treatment in Violation of the Fourteenth Amendment to the United States Constitution, the Minnesota Constitution, and the Minnesota Civil Commitment and Treatment Act 167. Plaintiffs incorporate all previous allegations as if fully set forth herein. 168. The Fourteenth Amendment 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. 169. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons
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are committed. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to punishment as determined by reasonable professional judgment. Confinement that continues after the person no longer meets the statutory requirements for commitment violates due process.
170. The Minnesota Civil Commitment and Treatment Act requires civilly committed sex offenders to be committed to a secure treatment facility. The statute promises that patients will receive individualized written program plans to be reviewed quarterly, periodic medical treatment and the right to receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary.
171. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members 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. Plaintiffs and Class members are not progressing through the treatment program and are instead remaining in the first two phases of treatment for years.
172. The acts and omissions of Defendants, specifically set forth above, constitute an unreasonable failure to provide Plaintiffs and Class members with the “proper care and treatment, best adapted, according to contemporary professional standards, to rendering future supervision unnecessary” in violation of the Fourteenth
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Amendment to the United States Constitution, Article 1, Section 2 of the Minnesota Constitution, and Chapter 253B of the Minnesota Civil Commitment and Treatment Act.
173. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count II Denial of Right to be Free from Punishment in Violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution
174. Plaintiffs incorporate all previous allegations as if fully set forth herein. 175. The Fourteenth Amendment 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. 176. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to punishment as determined by reasonable professional judgment.
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177. Since 2008 when Defendant Mr. Benson became the Executive Director of MSOP, the program has changed drastically to become a punitive confinement facility.
178. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members are double bunked in wet cells in a facility modeled after a prison. Plaintiffs and Class members do not have a reasonable grievance procedure to use when they are punished with BERs because the hearing board is made up of MSOP employees and any appeals are heard by the MSOP facility director.
179. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members are punished by having their rights to access activities and areas of the facility limited or completely taken away or by being placed in protective isolation in the HSA.
180. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members are not allowed to possess certain property and the grievance procedure for confiscated property leaves Plaintiffs and Class members no reasonable way to challenge the confiscation because by the time their grievance is heard, the property will have been destroyed.
181. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members are denied access to group therapy.
182. Based on the policy and procedures created and implemented by Defendants, Plaintiffs’ and Class members’ furniture is removed as punishment for alleged rule violations.
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183. Based on the policy and procedures created and implemented by Defendants, Defendants can punish Plaintiffs and Class members by taking away their employment options.
184. Based on the policy and procedures created and implemented by Defendants, they cause random searches of Plaintiffs’ and Class members’ persons, property, and cells. Plaintiffs and Class members are placed in shackles and black boxes anytime they leave the secure facility.
185. The punitive policies, procedures, and practices of Defendants are not reasonably related to the purpose for which Plaintiffs and Class members have been civilly committed, which is treatment. Denying Plaintiffs and Class members their liberty without a proper therapeutic purpose constitutes inherently punitive detention.
186. The acts and omissions of Defendants constitute a deprivation of Plaintiffs’ and Class members’ constitutional right to be free from punishment in violation of Plaintiffs’ and Class members’ rights protected by the Fourteenth Amendment of the United States Constitution and Article 1, Section 2 of the Minnesota Constitution.
187. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
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Count III Denial of Less Restrictive Alternative Confinement in Violation of the Fourteenth
Amendment to the United States Constitution and the Minnesota Constitution 188. Plaintiffs incorporate all previous allegations as if fully set forth herein. 189. The Fourteenth Amendment 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.
190. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed as determined by reasonable professional judgment.
191. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to punishment. Confinement that continues after the person no longer meets the statutory requirements for commitment violates due process.
192. The MSOP, as implemented, does not provide a less restrictive alternative to confinement at a MSOP secure facility. Therefore, it is not reasonably related to a legitimate government objective. Not all Plaintiffs and Class members have the same level of security needs, however, the MSOP as implemented does not account for this possibility. Also, if a Plaintiff or Class member no longer meets the statutory requirements for civil commitment, there is no less restrictive facility or program for them to enter. As such, the MSOP as implemented fails to satisfy the legitimate governmental objective of treating MSOP patients and preventing reoffending behavior.
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193. The acts and omissions of Defendants constitute a deprivation of Plaintiffs’ and Class members’ constitutional right to a less restrictive alternative placement in violation of their rights guaranteed under the Fourteenth Amendment to the United States Constitution and Article 1, Section 2 of the Minnesota Constitution.
194. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Hausfeld, Thuringer, Daywitt, Foster and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count IV Denial of Right to be Free from Inhumane Treatment in Violation of the Fourteenth
Amendment to the United States Constitution and the Minnesota Constitution 195. Plaintiffs incorporate all previous allegations as if fully set forth herein. 196. The Fourteenth Amendment 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.
197. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to
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punishment as determined by reasonable professional judgment. Confinement that continues after the person no longer meets the statutory requirements for commitment violates due process.
198. Based on the policy and procedures created and implemented by Defendants, they subject Plaintiffs and Class members to inhumane treatment through the punitive and unnecessarily restrictive living conditions at the MSOP. Plaintiffs and Class members are double bunked in wet cells. They have their rights restricted for minor violations of MSOP facility rules. They receive inadequate meals. They are subject to arbitrary discipline and decision-making by MSOP staff.
199. The acts and omission of Defendants constitute deprivation of Plaintiffs’ and Class members’ constitutional right to be free from inhumane treatment in violation of their rights guaranteed under the First and Fourteenth Amendments to the United States Constitution and Article 1, Section 5 of the Minnesota Constitution.
200. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
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Count V Denial of the Right to Religion and Religious Freedom in Violation of the First and
Fourteenth Amendments to the United States Constitution 201. Plaintiffs incorporate all previous allegations as if fully set forth herein. 202. The Fourteenth Amendment 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. 203. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to punishment as determined by reasonable professional judgment. 204. Civilly committed patients are entitled to some degree of protection under the First Amendment that is broader than that held by prisoners but less than what is held by members of free society. Policies or restrictions of First Amendment rights must be reasonably related to legitimate institutional and therapeutic interests. 205. Based on the policy and procedures created and implemented by Defendants, they are violating Plaintiffs’ and Class members’ rights to religious freedom through the MSOP’s policies, procedures and practices. Defendants cause Plaintiffs and Class members to be monitored when they are having private meetings with religious persons such as clergy members and during religious services. They do not permit Plaintiffs and Class members to wear religious apparel or possess certain religious
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property. Also, they do not allow Plaintiffs and Class members to communally celebrate their religious beliefs by having feasts.
206. These policies, procedures and practices are not related to a legitimate institutional or therapeutic interest of the Defendants.
207. The acts and omissions of Defendants constitute unreasonable restrictions on Plaintiffs’ and Class members’ rights to freedom of speech, expression, religion, privileges, and immunities guaranteed by the First and Fourteenth Amendments to the United States Constitution.
208. Plaintiffs Bolte, Braun, Daywitt and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count VI Unreasonable Restriction of Free Speech and Free Association in Violation of the First Amendment to the United States Constitution and the Minnesota Constitution
209. Plaintiffs incorporate all previous allegations as if fully set forth herein. 210. Civilly committed patients are entitled to some degree of protection under the First Amendment that is broader than that held by prisoners but less than what is held by members of free society. Policies or restrictions of First Amendment rights must be
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reasonably related to legitimate institutional and therapeutic interests as determined by reasonable professional judgment.
211. Based on the policy and procedures created and implemented by Defendants, they have place restrictions on free association by limiting contact among Plaintiffs and Class members, as well as other patients.
212. Based on the policy and procedures created and implemented by Defendants, they have limited the ability of Plaintiffs and Class members to use the phone by charging a prohibitively high amount for phone use. Also, Plaintiffs and Class members are not able to call 800 numbers or use calling cards.
213. Based on the policy and procedures created and implemented by Defendants, they have limited Plaintiffs’ and Class members’ access to certain newspapers and magazines and remove or censor articles from the newspapers and magazines that are provided.
214. These policies, procedures and practices are not related to a legitimate institutional or therapeutic interest of the Defendants.
215. The acts and omissions of Defendants constitute an unreasonable restriction on Plaintiffs’ and Class members’ rights to freedom of speech, expression, religion, privileges, and immunities guaranteed by the First Amendment of the United States Constitution and Article 1, Section 2 of the Minnesota Constitution.
216. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate
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result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count VII Unreasonable Searches and Seizures in Violation of the Fourth Amendment to the
United States Constitution and the Minnesota Constitution 217. Plaintiffs incorporate all previous allegations as if fully set forth herein. 218. Under the Fourth Amendment, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” In an institutional setting, the need for the search must be balanced against the invasion of personal rights that the search entails. 219. Defendants consistently violated Plaintiffs’ and Class members’ Fourth Amendment Rights through their search policies, procedures and practices. 220. As part of their practices and policies, Defendants conduct random cell searches without any probable cause or purpose. They perform “window checks” daily on the pretext that they need to make sure Plaintiffs and Class members are not going to escape through the five inch wide windows. 221. As part of their practices and policies, Defendants cause strip searches to be conducted on Plaintiffs and Class members every time they leave the secure perimeter even though Plaintiffs and Class members are always accompanied by MSOP staff.
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222. As part of their practices and policies, Defendants cause random pat downs of Plaintiffs and Class members without any probable cause or purpose.
223. These search policies, procedures and practices unnecessarily invade the personal rights of Plaintiffs and Class members.
224. The acts and omissions of Defendants constitute unreasonable searches and seizures in violation of Plaintiffs’ and Class members’ rights guaranteed by the Fourth Amendment of the United States Constitution and Article 1, Section 10 of the Minnesota Constitution.
225. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count VIII Minnesota Statute § 253B is Unconstitutional as Applied 226. Plaintiffs incorporate all previous allegations as if fully set forth herein. 227. A statute that violates constitutional rights when enforced is unconstitutional as applied to those whose rights are violated.
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228. Defendants are violating Plaintiffs’ and Class members’ constitutional rights through their enforcement of Minn. Stat. § 253B, under which all Plaintiffs and Class members are civilly committed to MSOP.
229. Non-criminal confinement must have a non-criminal purpose. The civil commitment statute mandates that during involuntary detention or commitment pursuant to Chapter 253B, the patient is entitled to all constitutionally required care and treatment. Plaintiffs and Class members are entitled to such treatment as will give them a realistic opportunity to meet the statutory requirements to be released from confinement, as determined by an appropriate mental health professional and that is within the scope of acceptable mental health treatment.
230. The civil commitment standards under Minn. Stat. § 253B are inconsistently implemented, as evidenced by the variance in the number of Plaintiffs and Class members civilly committed to MSOP over time and over various geographic locations. This inconsistent implementation demonstrates that civil commitment determinations are not based on professional judgment. Rather, they are arbitrary and politically influenced.
231. The release standards are also inconsistent and inherently biased. The failure to release any Plaintiffs or Class members over the life of the MSOP program demonstrates that the treatment program is a result of orders from political leaders and is not based on professional judgment.
232. Defendants’ implementation of Minn. Stat. § 253B violates Plaintiffs’ and Class members’ constitutional rights to due process protections. Additionally, the
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application of Minn. Stat § 253B to Plaintiffs and Class members is punitive, not therapeutic, in nature, rendering it unconstitutional.
233. The acts and omissions of Defendants render Minn. Stat. § 253B unconstitutional as applied.
234. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count IX Violation of Court Ordered Treatment 235. Plaintiffs incorporate all previous allegations as if fully set forth herein. 236. Civil commitment to the MSOP occurs after a judicial proceeding. When a judge ruled the Plaintiffs and Class members were SPP or SDP under Minn. Stat. § 253B, that is a determination that they must enter a secure treatment facility. Therefore, the court has ordered that Plaintiffs and Class members receive proper sex offender treatment. 237. Plaintiffs and Class members are not receiving adequate treatment. 238. Plaintiffs and Class members spend no more than six or seven hours per week in treatment, their treatment plans are not detailed and individualized, the treatment
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staff is not qualified to treat sex offenders, and staffing levels are often far too low. Plaintiffs and Class members are not progressing through the treatment program and are instead getting stuck in the first two phases of treatment.
239. The acts and omissions of Defendants constitute a failure to satisfy court ordered treatment to Plaintiffs and Class members.
240. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count X Breach of Contract 241. Plaintiffs incorporate all previous allegations as if fully set forth herein. 242. Defendants’ failure to provide Plaintiffs and Class members the treatment contracted for in the Consent for Participation in Sex Offender Treatment form constitutes a breach of contract. Plaintiffs and Class members have been damaged as a direct and proximate result of Defendants’ breach because they have not been provided adequate treatment and have been restrained indefinitely in the MSOP program. 243. MSOP has breached its contract to provide treatment to the Plaintiffs and Class members who signed the form consenting to sex offender treatment. The type and
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amount of treatment provided and the staff that provides that treatment falls well below constitutional standards, well below contact standards and well below the reasonable performance of the treatment program created by MSOP’s own policies.
244. The acts and omissions of Defendants constitute a breach of contract. 245. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for relief as follows:
a. That the Court determine that this action may be maintained as a class action under Rules 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure, that Plaintiffs be certified as class representative and Plaintiffs’ counsel be appointed as counsel for the Class;
b. That the unlawful conduct alleged herein be declared to be illegal and in violation of the federal and state constitutional, statutory and common law claims alleged herein;
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c. That the Court order Defendants to provide proper treatment, appropriate less restrictive alternatives, and in general operate MSOP without an improper purpose of punishment;
d. That Defendants be enjoined from engaging in the same or similar practices alleged herein;
e. That Plaintiffs and Class members recover actual or nominal damages, as provided by law, determined to have been sustained as to each of them, and that judgment be entered against Defendants on behalf of Plaintiffs and Class members;
f. That Plaintiff and Class members receive pre-judgment and post-judgment interest as allowed by law;
g. That Plaintiff and Class members recover their costs of the suit, attorneys’ fees and expenses as allowed by law; and
h. All other relief allowed by law and equity.
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DEMAND FOR JURY TRIAL Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a trial by jury on all issues so triable.

Dated: March 15, 2012

s/Daniel E. Gustafson Daniel E. Gustafson (#202241) Karla M. Gluek (#238399) David A. Goodwin (#386715) Raina E. Challeen (#392127) Gustafson Gluek PLLC 650 Northstar East 608 Second Avenue South Minneapolis, MN 55402 Telephone: (612) 333-8844 Fax: (612) 339-6622
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, and Bradley Wayne Foster,
Plaintiffs,
v.
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Greg Carlson, and Ann Zimmerman, in their individual and official capacities,
Defendants.

Court File No. 11-cv-03659 (DWF/JJK)
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF AMENDED MOTION FOR CLASS CERTIFICATION PURSUANT TO FED. R. CIV. P. 23(b)(2)

INTRODUCTION Pursuant to Fed R. Civ. P. 23(b)(2), Plaintiffs move to certify a class consisting of: “All patients currently civilly committed in the Minnesota Sex Offender Program pursuant to Minn. Stat. § 253B.” The above-named Plaintiffs are all civilly committed pursuant to Minn. Stat. § 253B. Plaintiffs have alleged in their Amended Complaint that Defendants: 1) fail to provide adequate treatment, 2) deny the right to be free from punishment, 3) deny lessrestrictive alternatives, 4) deny the right to be free from inhumane treatment, 5) deny the right to religious freedom, 6) unreasonably restrict speech and association, 7) conduct

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unreasonable searches and seizures, 8) unconstitutionally apply section 253B, 9) violate court-ordered treatment, and 10) have committed breach of contract. These claims are suitable for class certification under Rule 23(b)(2). Not only are the requisites of Rule 23 (a) - numerosity, commonality, typicality and adequacy of representation - plainly met but Defendants have acted or refused to act on grounds generally applicable to all members of the class, thereby making injunctive relief appropriate for the class as a whole.1 As such, class certification should be granted.
FACTUAL BACKGROUND The Plaintiffs and the proposed Class members (currently numbering over 600) are all civilly committed pursuant to Minn. Stat. § 253B. 1. The MSOP Treatment Program The MSOP is a treatment program with prison-like facilities in Moose Lake, MN and St. Peter, MN. The Moose Lake facility houses patients in the first two phases of the treatment program and the St. Peter facility houses patients in the third and final stage of the program as well as alternative programs for cognitively impaired patients. Karsjens et al., v. Jesson, et al., 11-CV-0359 (DWF/JSM) (“Karsjens Complaint”) at ¶ 58. All persons civilly committed under Minnesota law enter the MSOP treatment program. Id. The MSOP treatment program is broken out into three phases. Id. at ¶ 64. Each person committed to the MSOP must start in Phase I of treatment and complete the two subsequent phases in order to be considered for provisional discharge from the MSOP. In
1 Plaintiffs have identified one or more class representatives who have suffered injury under each Count set forth in the First Amended Complaint.
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Phase I, patients must comply with the MSOP facility’s rules and learn basic treatment concepts. Id. Over half of all MSOP Patients are in Phase I. See Sex Offender Civil Commitment in Minnesota – Conference Materials, Minnesota Sex Offender Program Presentation, available at http://www.dhs.state.mn.us/main/groups/agencywide/documents/pub/dhs16_166449.pdf (last visited Jun. 27, 2012) (“Minnesota Conference Materials”). No sex offender specific treatment is provided in Phase I. See Office of the Legislative Auditor, State of Minnesota, Evaluation Report: Civil Commitment of Sex Offenders (March 2011) at 42 (citing Minn. Stat. § 253B.18, subd. 1) available at http://www.auditor.leg.state.mn.us/ped/pedrep/ccso.pdf (“Legislative Auditor Report”). In Phase II, patients must discuss their sexual offenses and patterns of sexual abuse. Karsjens Complaint at ¶ 64. In Phase III, which takes place at the St. Peter facility, the program focuses on community reintegration. Id. This third phase consists of MSOP Supervised Integration, in which patients live in a secure area within the St. Peter Facility. Id. Patients may take accompanied outings off campus, and Community Preparation Services, in which patients live on campus in a house that is not within the secure perimeter. Id. Throughout Phase III, patients are electronically monitored. Id.
The MSOP treatment program was designed to be completed within 32 months. Matter of Linehan, 557 N.W.2d 171, 188 (Minn. 1996). As of January 1, 2012, 64% of MSOP patients were in Phase I, 24% were in Phase II, and 12% were in Phase III. See Minnesota Conference Materials. No one has ever completed the program in 32 months, and in fact, most class members have already spent more than 32 months in Phase I.
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Currently, 75% of MSOP patients have been civilly committed to the MSOP for between three years and ten years or more. Id. Although it has been in existence since 1993, it was not until February of 2012 that the first patient in the history of the MSOP was deemed to have completed the treatment program, after commitment to the program for more than 18 years, and be ready for provisional discharge. See Paul McEnroe, First Sex offender from state program is granted release, STAR TRIBUNE (Feb. 3, 2012), http://www.startribune.com/local/stpaul/138669904.html. Despite that patient completing over 18 years of treatment within MSOP, he is still subject to intensive treatment as a provision of his discharge. Id.
Although there is a statutorily established option for a less restrictive alternative treatment program, no such options have ever been available as no less restrictive alternatives exist. See Legislative Auditor Report, at 42 (citing Minn. Stat. § 253B.18, subd. 1).
The current treatment program has serious constitutional deficiencies including, among other things, a low number of treatment hours provided, insufficient staffing, insufficient staff training, inadequate conditions of confinement, inadequate medical treatment, and a failure to progress Plaintiffs and proposed Class members through treatment. See Karsjens Complaint at ¶72-83. For example, Plaintiffs and Class members receive fewer hours of treatment per week than any other adult inpatient sex offender treatment program in the state, including the program at the Minnesota Department of Corrections (“DOC”). Legislative Auditor Report at 62.
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Plaintiffs and Class members are not required to participate in treatment and there is a separate living unit at the Moose Lake facility for those who do not participate in treatment. Id. at 78. More than 50 people currently are housed in a separate unit for nonparticipation. But if the treatment program did not have such serious problems, essentially being a futile exercise, Plaintiffs allege that many of these patients would choose to take part in treatment in order to progress through the program.
2. Living Conditions at the MSOP Defendants have subjected the Plaintiffs and proposed Class members to punitive policies, practices, and procedures during their civil commitment to the MSOP. Since 2008, the MSOP has largely operated under policies and procedures akin to those of the Minnesota DOC. Karsjens Complaint at ¶ 69. Many of the MSOP’s policies and procedures impermissibly exceed the boundaries of what is necessary for treatment and security and certainly do not foster the therapeutic environment upon which the civil commitment scheme was founded and defended against previous legal challenges. Instead, these policies and practices have created an environment that does not foster rehabilitation. See id. at ¶ 71; see also Legislative Auditor Report at 68. The MSOP facility at Moose Lake is laid out similarly to many prisons with cell units facing into a central courtyard where Plaintiffs and Class members may be observed from one central station. Karsjens Complaint at ¶ 106. MSOP staff wear guard-style uniforms. Id. The newly designed and constructed living unit, Complex One, is designed like a correctional facility. Id. In fact, when Complex One was constructed, the MSOP obtained waivers from the Minnesota Department of Health so it would not have to
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comply with statutorily required living standards for state hospitals. Id. at ¶ 111. The waivers allowed the MSOP facility at Moose Lake to provide springless beds, smaller cells with inadequate space between beds, inoperable windows in cells, smaller windows in cells, and a more prison-like setting as opposed to any sort of therapeutic environment. Id. The State’s approval of these waivers resulted in the current cells in which Plaintiffs and Class members reside. Plaintiffs and Class members are double bunked in 9.5 x 15 ft. wet cells consisting of two metal bed frames that are only 30 inches apart, small stainless steel desks, and a stainless steel toilet/sink combination unit fixed into the cell. Id. at ¶ 112. Plaintiffs and Class members are locked in these cells daily from approximately 9:45 p.m. until 6:25 a.m. Id. at ¶ 114.
Currently, Plaintiffs and Class members are subject to unnecessary pat searches of the body, unclothed body searches, and body cavity searches without reasonable suspicion being established. Id. at ¶ 118. Plaintiffs and Class members may be patsearched or wand-searched at any time for no reason. Id. Plaintiffs and Class members are also subject to strip searches upon entry to the High Security Area (“HSA”) and any time they leave or enter the secure perimeter of the MSOP facility. Id. at ¶ 119.
When Plaintiffs and Class members leave the secure facility they are placed in handcuffs, leg irons and a black box, complete with waist-chain. Id. at ¶ 126. They are then pushed in a wheel chair to the transport vehicle where they are placed into a small cage inside the van. Id. They are subject to these same restraints when they suffer a medical emergency and need to leave the secure facility via ambulance. Id. The use of such obvious and severe restraints in public is patently untherapeutic.
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Plaintiffs and Class members are also subject to regular random room searches in addition to any searches of their rooms based on any reasonable suspicion. Id. at ¶ 121. Plaintiffs and Class members are not allowed to observe the searches or be present during their performance. Id.
MSOP’s main disciplinary tool appears to be Behavior Expectation Reports (“BER”). Id. at ¶ 90. Plaintiffs and other Class members are expected to follow the Behavioral Expectations Handbook. Id. Behavioral violations are categorized as either Minor Rule Violations or Major Rule Violations. Id. at ¶ 91. However, the handbook is exceedingly vague about what constitutes a minor or major rule violation and what the disciplinary consequences are for different violations. Id. Furthermore, and likely a result of their vagueness, the BERs are not applied consistently by MSOP staff. Id. at ¶ 95. Receiving BERs directly affects a patient’s progression in treatment and disciplinary restrictions cause at least a six month delay in progression in treatment. Id. at ¶ 100.
The HSA is also used as a disciplinary measure at MSOP. HSA is a solitary confinement unit. Id. at ¶ 101. Plaintiffs and Class members are held in the HSA when MSOP staff determines they need to be placed on Protective Isolation Status. Plaintiffs and Class members can be placed in HSA until MSOP staff determines they have regained behavioral control. Id. at ¶ 102. While in HSA, Plaintiffs and Class members are only allowed out of their cell for one hour per day. Id. Plaintiffs and Class members are kept in HSA much longer than is necessary, and it is used as a punitive measure rather than a behavioral control measure. Id. at ¶ 103.
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Plaintiffs and Class members are forced, at their own expense, to mail property that MSOP deems contraband outside the facility or the property is destroyed. Id. at ¶ 132. If Plaintiffs and Class members possess property that is considered contraband, that property is confiscated. Id. at ¶ 104. Plaintiffs and Class members may then submit a request to appeal the denial of their property, but such requests take MSOP ten business days to handle. Id. By the time that request has been processed, the property has been destroyed. Id. Plaintiffs and Class members must submit at least two requests before they may file a grievance, which is well beyond the ten day period. Id.
Plaintiffs’ and Class members’ visitation with their family and friends is limited. Id. at ¶ 139. Visitors must be pre-approved for visitation, submit to a criminal background check and a pat search upon entry to the visiting area. Id. Contact between Plaintiffs and Class members and a visitor is limited to one hug at the beginning and end of each visit. Id. Smoking is not permitted during visitation and no food is allowed during visits. Id. Plaintiffs and Class members are strip searched after visitation. Id. MSOP routinely denies access to visitors and limits the size of a Plaintiff’s and Class member’s visiting list as well as the number of visitors at one time. Id.
The MSOP phone system is the only phone system Plaintiffs and Class members are allowed to use. Id. at ¶ 149. Despite existing technology that is virtually free to use, the state charges Plaintiffs approximately 32 to 39 cents a minute to use the phone and they cannot use 800 numbers to conduct business. Id. at ¶ 149- 150. Calling cards are prohibited. Id. at ¶ 150. Plaintiffs and Class members are very limited in the number of phone calls they are allowed to make.
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MSOP staff monitors the Plaintiffs and Class members who visit with clergy and religious volunteers. Id. at ¶ 154. Plaintiffs and Class members are only allowed five religious items in their personal property, and Defendants limit the types of religious items Plaintiffs and Class members may have. Id. at ¶ 156.
PROCEDURAL BACKGROUND Over the last several years, a number of patients civilly committed to the MSOP filed federal complaints against various state employees associated with the MSOP. The pro se complaints generally allege violations of the patients’ civil rights pursuant to 28 U.S.C. § 1983 and other statutes. On January 20, 2012, at the request of the Minnesota Federal Bar Association’s Pro Se Project, Gustafson Gluek PLLC agreed to appear in two of these cases, Thompson v. Ludeman, et al., 11-CV-01704 (DWF/JJK) and Karsjens et al., v. Jesson, et al., 11-CV-0359 (DWF/JSM). The Karsjens case was initially filed on December 21, 2011 as a proposed class action. The Thompson case was filed on June 27, 2011; an Amended Complaint was filed on Aug. 2, 2011 [Thompson Dkt. # 9]. On January 11, 2012, Magistrate Judge Keyes issued a Report and Recommendation in the Thompson case in response to the Defendants’ Motion to Dismiss [Dkt. # 39]. The Report and Recommendation found that some of the claims should survive the motion to dismiss. After Gustafson Gluek PLLC appeared in Karsjens and Thompson, on January 25, 2012, Chief Judge Davis issued an Order [Karsjens Dkt. #142] staying all of the pro se MSOP cases with the exception of the Thompson and Karsjens actions pending the resolution of the outstanding Motion for Class Certification filed in the Karsjens case
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[Dkt. # 24]. On February 6, 2012, Chief Judge Davis issued an Amended Order [Dkt. # 145] applying the stay to additional MSOP cases that were unintentionally omitted from his previous order. On February 8, 2012, Judge Frank issued an Order [Karsjens Dkt. #146] staying the Thompson litigation until further notice, and setting a deadline of February 29, 2012 for filing an Amended Complaint in the Karsjens action. The First Amended Complaint in the Karsjens case was filed on March 15, 2012 [Karsjens Dkt. #151]. Currently, there are more than 65 cases subject to the Court’s stay.
ARGUMENT Plaintiffs’ Amended Complaint makes allegations that concern all of the individuals civilly committed in the MSOP. Because Plaintiffs satisfy Rule 23(a) and (b)(2), their motion for class certification should be granted. A class action serves to conserve the resources of the court and the parties by permitting an issue that may affect every class member to be litigated in an economical fashion. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155 (1982). A Rule 23(b)(2) class action allows for a single injunction or declaratory judgment that provides relief to all class members. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2557 (2011). 1. Plaintiffs Have Met the Requirements of Rule 23(a) Rule 23 of the Federal Rules of Civil Procedure governs class certification. To be certif ied as a cl ass, plaintiffs must meet all of the requirem ents of Rule 23(a) and must satisfy one of three su bsections of Rule 23(b). The Rule 23(a) requirements for class certification are: (1) the putative class is so numerous that it makes joinder of all m embers impracticable; (2) questions of law or fact are common to the class; (3) the class representatives’ claims or defenses are typical of the claims or defenses of
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the class; and (4) the representative parti es will f airly and adequately protect the interests of the class. In re St. Jude Med., Inc., 425 F.3d 1116, 1119 (8th Cir. 2005) (citing Fed. R. Civ. P. 23(a)) (citations omitted). When considering a motion for class certification, a court need not address whether the plaintiff has a cause of action because “a decision to certify a class is far from a conclusive judgment on the merits of the case.” In re Zurn Pex Plumbing Products Liability Litigation, 644 F.3d 604, 613-614 (8th Cir. 2011) (citation omitted). At the class certification stage, the only requirement is that the elements of Rule 23 are met. Bennett v. Nucor Corp., 656 F.3d 802, 814 (8th. Cir. 2011). The party seeking class certification “carr[ies] the burden of proof regarding Rule 23’s requirements.” City of Farmington Hills Employees Ret. Sys. v. Wells Fargo Bank, N.A., Civ. No. 10-4372 (DWF/JJG), 2012 WL 1021679 at *3 (D. Minn. March 27, 2012) (citing In re Workers’ Comp.), 130 F.R.D. 99, 103 (D. Minn. 1990)). When a question arises as to whether certification is appropriate, the court should give the benefit of the doubt to approving the class. In re Worker’s Comp., 130 F.R.D. at 103 (citation omitted); see also Harju v. Olson, 709 F.Supp.2d 699, 734 (D. Minn. 2010).
a. Numerosity Rule 23(a) requires that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Rule 23(a)’s f irst requirement is t hat joinder of all class members is impracticable because the class is too numerous. See Fed.R.Civ.P. 23(a)(1). The Eighth Ci rcuit has not establis hed any rigid rules regar ding the
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necessary size of a class and the ques tion of what m akes joinder impracticable depends on the facts of each case. Sonmore v. CheckRite Recovery Services, Inc., 206 F.R.D. 257, 261 (D. Minn. 2001). Here there is no question that Rule 23(a)(1) is satisfied. Courts in this district have certified classes that consisting of fewer individuals than would be included in the present Class. Classes have been certified ranging from about 540 class members in Kimball v. Fredrick J. Hanna & Associates, P.C., 2011 WL 3610129 at *3 (D. Minn., Aug. 15, 2011) to as few as 250-300 individuals. In re Worker’s Comp., 130 F.R.D. at 104 (citing Bowman v. National Football League, 402 F.Supp. 754, 756 (D. Minn. 1975)). Approximately 600 individuals fit the proposed class definition and those individuals face an identical process for treatment, living conditions, and potential release. Furthermore, many MSOP patients have expressed a desire to pursue the claims in this case on a class basis. Here, Plaintiffs have satisfied Rule 23(a)(1).
b. Commonality Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” Wal-Mart Stores, Inc., 131 S. Ct. at 2550-1 (citing Fed. R. Civ. P. 23(a)(2)). The Supreme Court recently clarified the commonality requirement, stating: Commonality requires the plaintif f to dem onstrate that the class members have suffered the sa me injury . . . . [ The class members’] claims must depend upon a co mmon contention . . . . That co mmon contention, moreover, must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Id. at 2551 (2011) (quotation omitted). This case presents precisely that situation.
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Although “not every question of law or fact must be common to every member of
the class, “the commonality requirement is met” if the questions linking the class
members are substantially related to the resolution of the litigation even though the
individuals are not identically situated.” Workers’ Comp., 130 F.R.D. at 104. See also,
e.g., In re Lutheran Broth. Variable Ins. Products Co. Civ. No. 99-MD-1309
(PAM/JGL), 2004 WL 909741 at *1 (D. Minn. April 28, 2004), Sales Practices Litig.,
Paxton v. Union Nat’l Bank, 688 F.2d 552, 561 (8th Cir. 1982) (holding that
commonality “may be satisfied, for example, where the question of law linking the class
members is substantially related to the resolution of the litigation even though the
individuals are not identically situated.”(citation omitted)).
The Plaintiffs have identified questions that are common to all Class members:
a. Whether Defendants violated Plaintiffs’ and Class members’ Due Process rights protected by the Fourteenth Amendment to the United States Constitution by failing to provide a realistic opportunity to earn their discharge from the MSOP;
b. Whether Defendants violated Plaintiffs’ and Class members’ Due Process rights protected by the Fourteenth Amendment to the United States Constitution by failing to provide a less restrictive confinement option as provided for by Minn. Stat. §253B;
c. Whether Defendants violated Plaintiffs’ and Class members’ Due Process rights protected by the Fourteenth Amendment to the United States Constitution by creating an unnecessarily punitive environment;
d. Whether Defendants violated Plaintiffs’ and Class members’ rights to be free from unreasonable searches and seizures as protected by the Fourth Amendment to the United States Constitution;
e. Whether Defendants violated Plaintiffs’ and Class members’ rights to freedom of expression, speech, and religious exercise as protected by the First Amendment to the United States Constitution;
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f. Whether Minnesota’s civil commitment laws are unconstitutional as applied to Plaintiffs and Class members;
g. Whether Defendants violated the court-ordered treatment directive for Plaintiffs and Class members; and
h. Whether Defendants’ failure to satisfy their obligations to Plaintiffs and Class members under the Consent for Participation in Sex Offender Treatment constitutes a breach of contract.
However, “[w]hat matters to class certification ... is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc., 131 S. Ct.at 2551 (citation omitted, emphasis in original). The proposed Class members allege the same injuries endured by all Class members– namely, lack of adequate treatment, inadequate conditions of confinement, and violation of their constitutional rights. As such, resolution of the Plaintiffs’ claims will necessarily remedy the injuries suffered by all potential Class members. Plaintiffs have identified one or more Class representatives who have suffered injury under each Count set forth in the First Amended Complaint.2
The injuries alleged by the Plaintiffs are all capable of classwide resolution and any adjudication by the Court would affect the whole Class. Given the numerous common questions and common injuries remediable by common action, Plaintiffs have satisfied Rule 23(a)(2).
2 It is a distinction without a difference that some potential class members are housed in different units or in St. Peter instead of Moose Lake, because all of the patients are subject to the same MSOP policies.
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c. Typicality Rule 23(a) also requires that, in order for a class to be certified, the claims or defenses of the class representative must be typical of the other members of the class. Fed. R. Civ. P. 23(a)(3). “This requirement is generally considered to be satisfied if the claims or defenses of the representatives and the members of the class stem from a single event or are based on the same legal or remedial theory.” Paxton, 688 F.2d at 561-62 (citation omitted). Commonality and typicality tend to merge because both “serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Wal-Mart Stores, Inc., 131 S. Ct. at 2551, n.5 (quoting Gen. Tel. Co., 457 U.S. at 157-58 n.13). In the present case, Plaintiffs’ claims stem from the same legal theory, challenge the same alleged conduct that affects all members of the Class, and seek the same broad legal remedies. Therefore, Plaintiffs have satisfied Rule 23(a)(3).
d. Adequacy Rule 23(a)(4) requires plaintiffs to establish that the “representative parties will fully and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “In order to satisfy the adequacy requirement, Plaintiff must show that (1) the representative and its attorneys are able and willing to prosecute the action competently and vigorously and (2) each representative's interests are sufficiently similar to those of the class that it is unlikely that their goals and viewpoints will diverge.” City of Farmington Hills
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Employees Ret. Sys. v. Wells Fargo Bank, N.A., Civ. No. 10-4372 (DWF/JJG) 2012 WL 1021679 at *4 (D. Minn. March 27, 2012) (citing In re Potash Antitrust Litig., 159 F.R.D. 682, 692 (D. Minn. 1995)). Here, Plaintiffs and their appointed counsel aptly satisfy this requirement.
There is no doubt that Plaintiffs will vigorously prosecute their claims. The fact that they filed a pro se complaint proves the vigor of their commitment to this case. Indeed, this action may be all that separates them from a lifetime of confinement. Here, the Plaintiffs have amply demonstrated that they are willing to work diligently to protect the interests of the class – particularly in light of the fact that all other similar cases are stayed pending the resolution of this matter. Plaintiffs have freely accepted the substantial responsibility by being the face of this litigation and advancing this case for all MSOP patients. They have actively engaged in all stages of this case. For instance:
• Plaintiffs and counsel have had several in-person and regular weekly telephonic conferences to discuss the case developments;
• Plaintiffs have provided Counsel with thousands of pages of documents (from both Plaintiffs and other patients) supporting the claims alleged on behalf of themselves and the Class;
• Plaintiffs have established and distributed a newsletter for all potential Class members updating them on case developments; and
• Plaintiffs have established clear communication channels within all units at MSOP to address questions or concerns from other Class members regarding this case.
Likewise, the undersigned counsel has demonstrated their determination to vigorously prosecute this case. At the request of the Minnesota Federal Bar Association’s Pro Se Project, Dan E. Gustafson and the law firm of Gustafson Gluek PLLC agreed to
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undertake representation of the Plaintiffs in this purported class action. Mr. Gustafson has over twenty years of experience in class action litigation, has been appointed lead counsel or co-lead counsel in many cases and has represented numerous classes in litigation during those years. Gustafson Gluek PLLC has expended substantial time and resources researching the history of the case, the potential claims of Plaintiffs and members of the putative Class, have consulted experts and developed legal theories to support their claims and their demands. Counsel also has experience with the substantive law at issue here by prosecuting claims on behalf of other MSOP patients. See, e.g., Beaulieu v. Minn. Dept. of Human Svcs., 798 N.W.2d 542 (Minn. App. 2011) (review granted July 19, 2011). Gustafson Gluek, PLLC has indicated that it will commit the time and resources necessary to litigate this case. As such, Dan E. Gustafson and Gustafson Gluek PLLC, as well as the above-named Plaintiffs, are qualified, able and willing to competently and vigorously represent the Class.
With respect to the adequacy prong, the Plaintiffs’ interests are sufficiently similar to those of the Class and it is unlikely that their goals and viewpoints will diverge. The interests of Plaintiffs and the proposed Class members are certainly aligned in this case: they share the common goal of being housed in a humane therapeutic environment while receiving adequate treatment that gives them a realistic opportunity for release. Plaintiffs’ goals and viewpoints are unlikely to diverge from those of the remainder of the Class. Because the proposed Class representative’s interests are sufficiently similar to those of
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the Class, and because Plaintiffs and their counsel are able and willing to competently and vigorously prosecute this action, the Plaintiffs have satisfied Rule 23(a)(4).3
2. Plaintiffs Have Met the Requirements of Rule 23(b) Even if a plaintiff meets all of the prerequisites set forth in Rule 23(a), he or she must also satisfy one or more of the conditions set forth under Rule 23(b). Fed. R. Civ. P. 23(b); see also General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982); Harju, 709 F.Supp.2d at 734. Plaintiffs easily satisfy the Rule 23(b)(2) requirements. Certification may be established under Rule 23(b)(2) if the prerequisites of subdivision (a) are satisfied and if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole . . . .” Harju v. Olson, 709 F.Supp.2d 699, 735 (D. Minn. 2010) (citing Fed. R. Civ. P. 23(b)(2)). Rule 23(b)(2) should only be used for class certification when a single remedy will provide relief to each class member. Wal-Mart Stores, Inc., 131 S. Ct. at 2546. The primary remedy sought must be declaratory or injunctive in nature. In re St. Jude Med., 425 F.3d at 1121. In a Rule 23(b)(2) class, the claims made by the class need to be “cohesive” because there is no provision for unnamed class members to opt out of the
3 The Court should appoint Gustafson Gluek PLLC as Class Counsel and the following Plaintiffs as Class Representatives: 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, Brian Keith Hausfeld, Christopher John Thuringer, Kenny S. Daywitt, and Bradley Wayne Foster. For a list of the specific Class Representatives who suffered injuries under specific counts, see the Affidavit of Daniel E. Gustafson, Exhibit A.
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litigation. Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1036 (8th Cir. 2010). A cohesive Rule 23(b)(2) class is one in which injuries to the class as a whole predominate over any individual injuries. In re St. Jude Med., 425 F.3d at 1122. “The members of a (b)(2) class are generally bound together through preexisting or continuing legal relationships…” Id. (internal quotation omitted).
In the present case, Plaintiffs’ First Amended Complaint alleges that Defendants’ acts and omissions regarding the Plaintiffs and Class members constitute serious statutory and constitutional violations generally applicable to the Class. The Plaintiffs and Class members are seeking injunctive and declaratory relief as a remedy for these violations.
Furthermore, any injunctive or declaratory relief will provide a remedy to all Plaintiffs and Class members because they are all civilly committed to the MSOP. All Plaintiffs and Class members must participate in the same ineffective treatment in order to have any hope of progressing through the MSOP’s phased program and having any opportunity for release. All Plaintiffs and Class members must complete their civil commitment in the MSOP’s current facilities because there is not a less restrictive alternative. Finally, all Plaintiffs and Class members are subject to the same disciplinary and punitive policies, practices, and procedures during their civil commitment to the MSOP. The injuries the Class alleges are all a direct consequence of their status as civilly committed persons under Minn. Stat. § 253B. The standard of cohesiveness set forth in In re St. Jude Medical is certainly met because the Class members all have the legal status of civil committees to the MSOP.
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As discussed above, there are currently over 65 stayed cases that have been filed

over the last year by various civil committees from the MSOP – and the number of

similar cases filed by MSOP patients continues to grow. These cases all assert similar

claims to those asserted in this case. The most efficient way to resolve this case, as well

as the over 65 stayed cases, is through a Rule 23(b)(2) class because, as stated in Avritt,

class members cannot opt out of any settlement or judgment. Avritt, 615 F.3d at 1036. A

resolution of this case will naturally resolve many of the legal claims in the stayed cases.

As a result, a Rule 23(b)(2) class will eliminate the danger of inconsistent verdicts, which

would otherwise be the outcome of individual resolution of the stayed cases. This is a

great benefit to both the Court and the State, which may otherwise need to enforce

inconsistent and potentially conflicting results in each of the stayed cases.

CONCLUSION

WHEREFORE Plaintiffs respectfully request that this Court enter an order

certifying the requested Class, appointing Gustafson Gluek PLLC as Class Counsel and

appointing the above-named Plaintiffs as Class Representatives.

Dated: June 28, 2012

Respectfully Submitted,
s/Daniel E. Gustafson Daniel E. Gustafson (#202241) Karla M. Gluek (#238399) David A. Goodwin (#386715) Raina E. Challeen (#392127) Gustafson Gluek PLLC 650 Northstar East 608 Second Avenue South Minneapolis, MN 55402 Telephone: (612) 333-8844

Attorneys for Plaintiffs
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 CASE 0:11-cv-03659-DWF-JJK Document 192 Filed 07/13/12 Page 1 of 20

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, Brian Christopher John Thuringer, Kenny S. Daywitt, and Bradley Wayne Foster,

Civil File No. 11-cv-3659 (DWF/JJK)
STATE DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION

Plaintiffs,

vs.

Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Greg Carlson, and Ann Zimmerman, in their individual and official capacities,

Defendants.

INTRODUCTION The named Plaintiffs are thirteen individuals who are indeterminately civilly

committed residents of the Minnesota Sex Offender Program (“MSOP”). The named

Plaintiffs have sued six State officials in their official and individual capacities under 42

U.S.C. § 1983, alleging violations of their federal and state constitutional and statutory

rights. Plaintiffs now bring their Amended Motion For Class Certification. As

demonstrated below, this Court should deny Plaintiffs’ Amended Motion for Class

Certification because they have not shown that each of the requirements of Rule 23 of the

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Federal Rules of Civil Procedure have been met. The Motion is premature as no facts have been developed to support a broad class certification at this early stage .
State Defendants reiterate that they remain willing to stipulate to a Rule 23(b)(2) class certification for settlement purposes at this early stage in order to facilitate a full and fair settlement. Plaintiffs simply fail to articulate any reason why entering into such a stipulation is insufficient, particularly when the State Defendants have agreed to engage in structured settlement discussions and have yet to file a responsive pleading. Thus, class certification at this point and without the benefit of discovery is premature at best.
STATEMENT OF FACTS I. ALLEGATIONS IN THE AMENDED COMPLAINT.
The named Plaintiffs are clients civilly committed to the MSOP. (Karsjens Amended Compl. pp. 5-7, Doc. No. 151.) Plaintiffs each make the conclusory claim that they “[have] been and [continue] to be injured by the acts and omissions of Defendants.” Id. Plaintiffs’ claims against the State Defendants make the same blanket allegation that each of the Defendants “implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and class members.” Id., pp. 5-8. Plaintiffs do not allege facts as to the role each Defendant played in any alleged constitutional act and do not identify what particular policy or policies were implemented or carried out by the State Defendants in their capacity as supervisors that caused each Plaintiff actual harm. Id.
Plaintiffs’ Amended Complaint begins with the alleged history and politics surrounding Minnesota’s civil commitment statutes dating back to 1939. Id., pp. 12-14.
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Very little of these allegations describe circumstances of conditions that have specifically and adversely affected the Plaintiffs. These facts, therefore, are of marginal relevance to their claims. Plaintiffs further set forth allegations concerning the civil commitment process for sex offenders in Minnesota. Id., pp. 14-17. Here again, Plaintiffs make no allegations that there constitutional rights were violated by these set of circumstances and have little relevance to their claims.
The allegations in Plaintiffs’ Amended Complaint can be placed into two main categories: (1) inadequate treatment, and (2) unconstitutional conditions of confinement. Under the inadequate treatment category, Plaintiffs allege that the MSOP does not provide for less restrictive alternatives to civil commitment as do civil commitment programs in Texas, Wisconsin, and New York. Id. 17-18. Plaintiffs further allege that they do not receive adequate treatment best adapted in accordance with contemporary professional standards because Plaintiffs and putative class members receive no more than six or seven hours per week of treatment per week, which is at the low range of treatment hours provided by other sex offender civil commitment programs. Id. 21-22. Plaintiffs further allege that clients at the MSOP are not provided with individual treatment by a licensed psychiatrist or psychologist, treatment plans are not detailed, and the MSOP has inadequate staffing levels. Id. 22-24. Plaintiffs contend that the MSOP is not accredited by an independent medical accreditation society, are billed a per diem rate for individual treatment regardless of individual needs, and that Plaintiffs and putative class members who have health insurance cannot use that coverage to pay for treatment costs at the MSOP. Id. 25. Finally, Plaintiffs allege that the MSOP is not releasing
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civilly committed sex offenders from the Program because of political considerations, and not professional judgment. Id. 44-45.
With respect to conditions of confinement, Plaintiffs contend that since Defendant Dennis Benson took over as Executive Director of the MSOP in 2008, numerous new policies were implemented that restricted many of the “rights” Plaintiffs and putative class members previously enjoyed. Id. p. 19. Plaintiffs further contend that while State Defendants categorized behavioral violations as either minor or major rule violations, the descriptions of such behavioral violations are unclear. Id. p. 26. Plaintiffs assert that MSOP staff do not consistently apply behavioral expectations to Plaintiffs and putative class members. Id. 27. Plaintiffs allege that they are allowed to appeal corrective behavioral actions imposed, but are not allowed to present evidence or cross-examine witnesses. Id. pp. 27-28. Plaintiffs list a number of alleged punitive policies and practices at the MSOP without specifying a particular policy or how each of the named State Defendants were involved in the alleged punitive acts. Id. pp. 29-30.
Plaintiffs make specific allegations with respect to their claim that the policies, procedures, and practices of the State Defendants have led to a non-therapeutic environment at the MSOP. Id. pp. 30-42. Plaintiffs complain about the physical layout of the MSOP Moose Lake Facility in that it was not designed with therapeutic goals in mind. Id. p. 31. Plaintiffs cite to two incidents of assault by a roommate in alleging that they and putative class members are subjected to unsafe double-bunking. Id. pp. 32-33.
Plaintiffs complain about various policies relating to clothed and unclothed body searches made without reasonable suspicion and “cell” searches as a “punitive exertion of
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authority on Plaintiffs and class members.” Id. pp. 33-34. Plaintiffs contend that they are subject to physical restraints when leaving the secured facility. Id. pp. 35-36. Plaintiffs also complain about restrictions placed on their personal freedom, alleging that their personal property is restricted, that items deemed to be contraband are confiscated by MSOP staff, and that they are not allowed access to the Internet. Id. pp. 37-38. Plaintiffs further claim that visitation is severely restricted, that vocational work assignments are limited to menial labor, that they are provided an inadequate diet, and that Plaintiffs and putative class members are charged exorbitant rates for using telephones. Id. pp. 38-41. Plaintiffs contend that the State Defendants monitor Plaintiffs and class members when they speak to clergy or religious volunteers, that Plaintiffs and putative class members are not provided with Kosher or Halal meals, and that they are only allowed to possess five religious items and may only attend a religious feast once per year. Id. p. 42.
With respect to release from civil commitment, Plaintiffs allege that they may only be released through a statutory process for reduction in custody, and there have only been two MSOP patients that have ever been placed on provisional discharge as compared to a greater number of provisionally discharged patients from other programs in different states. Id. pp. 43-45. II. THE MSOP TREATMENT PROGRAM.
In 1993, the Minnesota Legislature enacted legislation requiring the Commissioner of Human Services to establish and maintain a secure facility for sex offenders. See 1993 Minn. Laws Ch. 1, art. 7, § 28, codified at Minn. Stat. § 246B.02 (2010). In response, the Commissioner developed a program to provide treatment to persons committed by the
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courts as sexual psychopathic personalities or sexually dangerous persons under the Minnesota Civil Commitment and Treatment Act. See Minn. Stat. § 246B.02; Minn. Stat. Ch. 253B. “Sexual Psychopathic Personalities” are persons whose conduct evidences “an utter lack of power to control the persons’ sexual impulses… .” Minn. Stat. § 253B.02, subd. 18b (2010). “Sexually Dangerous Persons” are persons who have “engaged in harmful sexual conduct,” and because of their history and mental condition, are “likely to engage in acts of harmful sexual conduct … .” Minn. Stat. § 253B.02, subd. 18c (2010).
The Program must assess every client and develop and implement an individual written treatment plan. Minn. R. 9515.3030, subps. 1, 4. The plan must identify the client’s needs and establish goals. Id. at subp. 4. Treatment services must “address an individual’s sex offense behaviors and remediation, and include, as applicable related topics such as deviant sexual arousal patterns, assaultive behaviors, human sexuality, victimization issues, re-offense prevention, and interpersonal relationships.” Minn. R. 9515.3040, subp. 1A. Consequently, treatment at the MSOP is individualized to each particular client based on their assessed behaviors and risks. (Affidavit of Jessica Geil (“Geil Aff.”) ¶ 5, Ex D pp. 1-2.) As stated in the MSOP’s Program Theory Manual, the MSOP uses a phase system to provide sex offender treatment Id. ¶ 2, Ex. A p. 14. In Phase 1, clients focus on complying with rules and policies and learn basic treatment concepts. (Karsjens Amended Compl. p. 18.) Clients in Phase 1 do not directly address their sexual offending because interpersonal skills and appropriate motivations need to be developed in preparation for the challenges they will face in Phase 2. (Geil Aff. ¶ 2, Ex.
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A pp. 15-16.) In Phase 2, clients explore issues relating to their sexual offending using various tools not available to clients in Phase 1. Id. pp. 16-17 In Phase 3, clients focus on reintegration into the community through application of the skills learned in Phases 1 and 2 and monitored outings off campus. Id. pp. 17-18. There is also an Alternative Program at the St. Peter facility that provides differing treatment to those with low cognitive skills. Id. pp. 31-32. Although treatment is offered to civilly committed sex offenders, participation in treatment is voluntary, and there are clients who choose not to participate in sex offender treatment. (Geil Aff. ¶ 5 Ex. D p. 2; Plt’s Mem. in Supp. of Class Cert., p. 5..) Those clients choosing not to participate in treatment are separately housed within the Moose Lake Facility. (Plt’s Mem. in Supp. of Class Cert. p. 5.) Privileges, for example available vocational work hours, are generally fewer for those clients who choose not to participate in treatment or who do not consistently participate as opposed to treatment participants as such privileges are directly linked to treatment progress. (Geil Aff. ¶ 3, Ex. B p. 3.) Additionally, clients in different phases of treatment, those in Phase 3 for example, are not subject to various restrictions such as wearing of restraints when outside the secured perimeter. Id. ¶ 4, Ex. C p. 2.
In addition to treatment requirements, the legislature required the Commissioner to adopt rules to govern the operation, maintenance, and licensure of secured treatment facilities operated by the MSOP. Minn. Stat. § 246B.04, subd. 1 (2010). Pursuant to the rule making authority, the Commissioner promulgated numerous rules governing the operation, maintenance, and licensure of the program. See Minn. R. 9515.3000 to 9515.3110 (2010). These rules require the Program to develop and follow written
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policies and procedures regarding data privacy, treatment outcomes, prevention of abuse and predation among residents, response to allegations of criminal acts committed by facility patients, monitoring for contraband, and providing for a safe environment for staff, program participants, and visitors. Minn. R. 9515.3040, subp. 2. The Program must “maintain a secure and orderly environment that is safe for [patients] and staff and supportive of the treatment program.” Minn. R. 9515.3080, subp. 1. Consequently, the MSOP is authorized to redress an individual client’s disruptive behavior through imposition of restrictions that are in proportion to the behavioral violation. Minn. R. 9515.3090. III. PROCEDURAL HISTORY.
The State Defendants concur with Plaintiffs’ recitation of the procedural history in this matter.
ARGUMENT IV. PLAINTIFFS BEAR THE BURDEN OF PROVING THAT ALL
REQUIREMENTS OF RULE 23 ARE MET. To obtain class certification, Plaintiffs bear the burden of showing that the requirements of Rule 23 are met. Coleman v. Watt, 49 F.3d 255, 258 (8th Cir. 1994). A class action “may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. General Tel. Co. v. Falcon, 457 U.S. 147, 157 (1982) (emphasis added). Though class certification is not the time to address the merits of the parties’ claims and defenses, a “rigorous analysis” under Rule 23 must include an examination of what the parties would be required to prove at trial.
8

CASE 0:11-cv-03659-DWF-JJK Document 192 Filed 07/13/12 Page 9 of 20
See Elizabeth M. v. Montenez, 458 F.3d 779, 786 (8th Cir. 2006). Thus, an evaluation of the underlying claims may entail some overlap with the merits as the court may also be called upon to resolve disputes concerning the factual setting for the case. Wal-Mart Stores, Inc. v. Dukes, --- U.S. ---, 131 S.Ct. 2541, 2551 (2011); see also Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005). This Court retains broad discretion to determine whether the Rule 23 criteria are met. In re Lutheran Bhd. Variable Ins. Prods. Co. Sales Practices Litig., 201 F.R.D. 456, 458 (D. Minn. 2001).
In making its determination, the Court requires sufficient information to form a reasonable judgment. Accordingly, Plaintiffs’ pleading must set forth sufficient facts because “‘without reasonable specificity the court cannot define the class, cannot determine whether the representation is adequate, and the [defendant] does not know how to defend.’” Coleman, 49 F.3d at 258-59. So for example, bare allegations that discrimination had occurred were not sufficient to support certification of a class in employment discrimination cases. Falcon, 457 U.S. at 157, 102 S. Ct. at 2370; East Texas Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 405-06, 97 S. Ct. 1891, 189798 (1977). In addition, the Court may go beyond the pleadings and consider documentary evidence submitted by the parties to determine whether Rule 23 requirements have been met. Bishop v. Comm. on Prof. Ethics, 686 F.2d 1278, 1288 (8th Cir. 1982); Caroline C. by Carter v. Johnson, 174 F.R.D. 452, 459 n.7 (D. Neb. 1996). “A court of appeals may permit an appeal from an order granting or denying class-action certification… .” Fed. R. Civ. P. 23(f).
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As shown below, the allegations here are so broadly stated that this Court simply cannot perform the rigorous Rule 23 analysis that Falcon and Elizabeth M. contemplate. V. PLAINTIFFS’ CLASS ALLEGATIONS DO NOT SATISFY RULE 23
REQUIREMENTS. Rule 23(a) provides that no class can be certified unless the court determines that: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” As shown below, Plaintiffs have failed to meet these requirements at this early stage of litigation. A. Plaintiffs Have Failed To Demonstrate That The Class Is So Numerous
That Joinder Is Impracticable. Rule 23(a)(1) first requires that Plaintiffs show that the proposed class is “so numerous that joinder of all members is impracticable.” Paxton v. Union Nat’l Bank, 688 F.2d 552, 559 (8th Cir. 1982). No absolute or arbitrary number satisfies the numerosity requirement, id. at 559; rather, “what constitutes impracticability depends upon the facts of each case.” In re Lutheran Bhd. Variable Ins. Products Co., 201 F.R.D. at 458. Here, Plaintiffs’ motion defines the class as “all patients current civilly committed in the MSOP pursuant to Minn. Stat. § 253B.” Plaintiffs assert that they meet the numerosity requirement because there are approximately 600 patients of the Program, who reside at either the St. Peter or Moose Lake sites. The total number of potential class members at these facilities is undoubtedly numerous.
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CASE 0:11-cv-03659-DWF-JJK Document 192 Filed 07/13/12 Page 11 of 20
However, the fact that potential class members are all civilly committed to the MSOP means that each class member can be easily identified for purposes of joinder. Joinder is practicable when most class members were residents of the state and could be identified. See Hum v. Dericks, 162 F.R.D. 628, 634 (D. Haw. 1995) (holding that the numerosity requirement was not met when proposed class consisted of 200 individuals, most of whom lived in state and could be identified). In this case, all of the potential class members as defined by Plaintiffs are current residents of the Program who are easily identified. Also, judgment for the Plaintiffs will in effect secure injunctive relief to the benefit of the all other MSOP clients, making joinder feasible in accordance with Fed. R. Civ. P. 191. Accordingly, joinder is a practicable and feasible alternative to class certification in this case.
Because MSOP clients can be readily identified and the same injunctive remedy will be available to all clients who are similarly situated if the named plaintiffs prevail on the merits, joinder of the remaining clients currently at the MSOP is a practicable alternative if Plaintiffs desire to have a method of broadly applying policy changes to all MSOP clients at this stage of litigation.
1 It should be noted that several courts have called into question the need for a class when the constitutionality of a regulation or policy is challenged in an action for injunctive relief. See, e.g., Forts v. Ward, 621 F.2d 1210, 1217-18 (2d Cir. 1980) (finding class certification unnecessary in action for injunctive and declaratory relief against correctional facility); Sanford v. R.J. Coleman Realty Co., Inc., 573 F.2d 173 (4th Cir. 1978) (finding class certification unnecessary in action for injunctive relief in housing discrimination case); Ihrke v. Northern States Power Co., 459 F.2d 566 (8th Cir. 1972) (finding that where constitutionality of rules and regulations are at issue, “[n]o useful purpose would be served by permitting this case to proceed as a class action”) judgment vacated on other grounds, 409 U.S. 815 (1972).
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B. Common Issues Of Law And Fact Are Insufficient To Satisfy Rule 23(a).
Plaintiffs have also failed to show that there are questions of law or fact common to the entire class. The class action procedure is appropriate when “issues involved are common to the class as a whole” and when such issues “turn on questions of law applicable in the same manner to each member of the class.” Califano v. Yamasaki, 442 U.S. 682, 701 (1979). Rule 23 is thus satisfied when the legal question “‘linking the class members is substantially related to the resolution of the litigation.’” DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1174 (8th Cir. 1995) (quoting Paxton, 688 F.2d at 561). In other words, class certification is appropriate when “the main point of contention” for all class members is the same. Id. That common contention must be of such a nature that it is capable of class-wide resolution--which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Dukes, 131 S.Ct. at 2551. Class members are not required to be identically situated, nor must every question of law or fact be common to every member of the class. Paxton, 668 F.2d at 561. However, “[d]issimilarities within the proposed class are what have the potential to impede the generation of common answers.” Dukes, 131 S.Ct. at 2551 (quotation omitted).
In this case, there are several dissimilarities that impede identifying common answers with any degree of specificity. Plaintiffs recite a list of what they identify as common issues applicable to all putative class members. (Plt’s Mem. in Supp. of Mot. for Class Cert. pp. 13-14, Doc. No. 173.) But the Amended Complaint only generally
12

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describes the level of treatment offered and restrictions imposed without sufficient facts as to the differing levels of individual treatment offered and privileges given to various sub-groups within the MSOP. As set forth in the facts above, the treatment provided at the MSOP is individualized based on a client’s particular assessment and particular Phase of treatment, yet Plaintiffs make no showing as to how the level of treatment they receive in Phase 1 of a three-phase Program is typical of, and thus inadequate, to all other treatment participants, nonparticipants2, or those clients in the Alternative Program at the St. Peter facility. Moreover, the level of privileges gained by an individual client is dependent, in part, on their level of treatment participation. Consequently, the applicable Policies governing these differences are applied differently to these various sub-groups3. Given the variety of members of the potential class as well as their individualized treatment needs, Plaintiffs’ general assertion that they all are confined in the same Program with the same policies is insufficient to meet the commonality requirement. See Baldridge by Stockley v. Clinton, 139 F.R.D. 119, 127 (E.D. Ark. 1991) (decertifying class of persons with a developmental disability challenging housing in residential institutions after finding, among other things, that residents’ allegations of “common habilitation plan rules and regulations, common incident/death/abuse/neglect procedures . . . common need for protection from harm . . . common training provided to staff” did not
2 Several MSOP clients who do not participate in treatment and are plaintiffs with stayed cases have recently filed with the court pro se motions opposing class certification on the basis that they are dissimilar to the Plaintiffs and as an alternative should be granted subclass status. 3 Of course, impediments to class certification may possibly be cured by sub-classing under Rule 23 (c)(4) or (c)(5). See Amchem Products Inc., v. Windsor, 521 U.S. 591, 626-27 (1997). Plaintiffs in this case have not clearly identified potential subclasses here.
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CASE 0:11-cv-03659-DWF-JJK Document 192 Filed 07/13/12 Page 14 of 20
show that they shared the necessary common deprivation to satisfy Rule 23’s commonality requirement).
Similarly, Plaintiffs’ conclusory allegations concerning substantive and procedural due process violations, combined with inadequate treatment claims raises Rule 23 issues because resolution of these claims will involve differing legal standards. For example, an analysis of an inadequate treatment claim requires a determination that the state action was so arbitrary and egregious as to shock the conscience. Strutton v. Meade, 668 F.3d 549, 557-58 (8th Cir. 2012). On the other hand, substantive due process claims relating to various conditions of confinement such as use of restraints requires a finding that professional judgment was not used. See Youngberg v. Romeo, 457 U.S. 307, 324 (1982). Additionally, several of Plaintiffs’ claims such as inadequate medical care and inadequate diet for example require individualized findings of actual injury. Senty-Haugen v. Goodno, 462 F.3d at 889 (in order to make out a violation of the Eighth Amendment prohibition against cruel and unusual punishment arising from inadequate medical attention, an inmate must show “deliberate indifference” to a “serious illness or injury.”) (citation omitted); Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992) (inmate failed to provide evidence that his health suffered as a result of inadequate diet).
Given the differing facts and legal standards in this matter, certifying a single class seeking broad injunctive relief that has the potential of broadly affecting a state agency’s functioning would not promote judicial economy. See Elizabeth M., 458 F.3d at 788 (vacating district court’s order certifying class in action against state hospitals because of differing legal standards, the individualized nature of substantive due process inquiries,
14

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and failure to identify specific policies under attack). In the absence of specific identification of common issues, the class cannot be certified.
C. Plaintiffs’ Claims Are Not Typical Of Class Claims. The typicality requirement of Rule 23(a) is intended to evaluate whether plaintiffs’ particular claims are factually similar to those of the putative class members. A class member “must be part of the class and ‘possess the same interest and suffer the same injury’” as other class members. Falcon, 457 U.S. at 156, 102 S. Ct. at 2370. The burden is fairly easy to meet so long as other class members have claims similar to the named plaintiffs. See Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996). However, the presence of a common legal theory does not establish typicality when proof of a violation requires individualized inquiry. Elizabeth M., 458 F.3d at 787. “The proper inquiry is whether other members of the class have the same or similar injury, whether the action is based on conduct not special or unique to the named plaintiffs, and whether other class members have been injured by the same conduct.” Bublitz v. E.I. dupont de Nemours & Co., 202 F.R.D. 251, 257 (S.D. Iowa 2001) (citation omitted). Plaintiffs in this matter have not and cannot demonstrate that other members of the purported class have sustained the same or similar injury based on the same or similar conduct by the State Defendants. As stated above, the individualized treatment offered to clients in different phases of the Program and the dissimilar application of privileges and restrictions that depend on phase and factual circumstances negates a conclusion that all class members incur the same or similar injury. As such, Plaintiffs’ general allegations in their Amended Complaint that all class members are offered the same or similar
15

CASE 0:11-cv-03659-DWF-JJK Document 192 Filed 07/13/12 Page 16 of 20
inadequate treatment as they receive or are subject to the same or similar alleged unconstitutional conditions are insufficient to demonstrate same or similar injury. See Paxton, 688 F.2d at 562 (noting that typicality requires “something more than general conclusory allegations that unnamed blacks have been discriminated against”); Belles v. Schweiker, 720 F.2d 509, 515 (8th Cir. 1983) (finding no typicality where “Belles cannot identify any other person who has been subjected to the same or similar treatment as she has. She only speculates that such is the case.”). Indeed, not even the named Plaintiffs have each suffered the same or similar injuries on each of their claims. Plaintiffs have made little to no showing that clients in Phases 2 and 3 and nonparticipants in treatment suffered the same or similar injuries as these Phase 1 Plaintiffs. Hancock, 933 F. Supp. at 1468 (finding no typicality where plaintiffs did not show that there is “anyone, let alone a class of individuals, besides the named plaintiffs, whose constitutional rights have been violated”). Other than their conclusory assertions that all clients have restrictions placed on them, Plaintiffs have made no showing that their claims are typical. Therefore, the class as currently proposed by Plaintiffs cannot be certified at this juncture.
D. The Plaintiffs Are Not Adequate Representatives. Plaintiffs, as participants in Phase 1 of treatment at the Moose Lake Facility, cannot adequately represent the interests of the proposed class in this matter. The Court has the task of determining whether the named Plaintiffs satisfy all the requirements of Rule 23(a) and Rule 23(b)(2) with respect to the causes of action asserted. Elizabeth M., 458 F.3d at 786. Rule 23(a)(4) demands that “the representative parties will fairly and adequately protect the interests of the class.” Two factors measure adequate
16

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representation: (1) plaintiffs’ counsel must be competent to pursue the action; and (2) the representatives must not have interests that are antagonistic to those of the proposed class. In re Workers’ Comp., 130 F.R.D. 99, 107 (D. Minn. 1990).
In this case, the named Plaintiffs are not proper representatives because an inherent conflict exists between Plaintiffs and other proposed class members. Plaintiffs’ claims regarding behavioral corrections, inadequate treatment, and the restrictions placed on them, are in direct conflict with the interests of clients who are subject to fewer restrictions because they have advanced in treatment and who live in units with others who have similarly advanced in treatment. Certainly, the named Plaintiffs do not adequately represent those clients who do not participate in treatment or who, because of low cognitive functioning, have different treatment needs in the Alternative Program. Thus, class certification, if granted, would adversely affect those who are in different Phases of treatment and not subject to the same or similar restrictions as those clients in Phase 1. This conflict “goes to the very subject matter of the litigation” – the quality of care of Plaintiffs – and therefore should “defeat [Plaintiffs’] claim to representative status.” Jenson v. Cont’l Fin. Corp., 404 F. Supp. 806, 811 (D. Minn. 1975).
Because clients in the Program are subject to different restrictions based on the unit they reside in or what Phase of treatment they are in, the viewpoints and goals of Plaintiffs and other class members will likely diverge. Hence, Plaintiffs cannot adequately represent the interests of all persons civilly committed to the MSOP4.
4 State Defendants take no issue with opposing counsel’s competency to pursue this action should class certification be granted.
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CASE 0:11-cv-03659-DWF-JJK Document 192 Filed 07/13/12 Page 18 of 20

E. Plaintiffs Cannot Satisfy Rule 23(b) Requirements. Plaintiffs’ showing for class certification must not only satisfy Rule 23(a)

requirements, but Rule 23(b) requirements as well. Amchem Products, Inc. v. Windsor,

521 U.S. 591, 614, 117 S. Ct. 2231, 2245 (1997). As discussed above, Plaintiffs have

made no showing that the State Defendants have acted or refused to act in a manner

“generally applicable” to the entire class. Plaintiffs have not identified any particular

policies that affect all of the class members in the same or similar manner. Plaintiffs

have failed to meet the requirements of Rule 23(b)(2).

CONCLUSION Based upon the foregoing, the State Defendants respectfully request that this Court

deny Plaintiffs Motion for Class Certification at this stage of the litigation.

Dated: July 13, 2012

Respectfully submitted,

OFFICE OF THE ATTORNEY GENERAL State of Minnesota

s/Ricardo Figueroa
Ricardo Figueroa Assistant Attorney General Atty. Reg. No. 0282224 Steven H. Alpert (Atty. Reg. No. 0001351) Max Kieley (Atty. Reg. No. 0389363)

18

CASE 0:11-cv-03659-DWF-JJK Document 192 Filed 07/13/12 Page 19 of 20 445 Minnesota Street, Suite 1100 St. Paul, MN 55101-2128 Telephone: (651) 757-1233 Fax: (651) 282-5832 ricardo.figueroa@ag.state.mn.us
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CASE 0:11-cv-03659-DWF-JJK Document 192 Filed 07/13/12 Page 20 of 20

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(D)

The undersigned certifies that the Brief submitted herein contains 4,806 words and complies with the type/volume limitations of the Local Rules for the United States District Court, District of Minnesota 7.1(d). This Brief was prepared using a proportional spaced font size of 13 pt. The word count is stated in reliance on Microsoft Word 2003, the word processing system used to prepare this Brief.

AG: #3038965-v1

s/Ricardo Figueroa Ricardo Figueroa

20

 
 CASE 0:11-cv-03659-DWF-JJK Document 204 Filed 07/24/12 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, and Bradley Wayne Foster,
Plaintiffs,
v.
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Greg Carlson, and Ann Zimmerman, in their individual and official capacities,
Defendants.

Court File No. 11-cv-03659 (DWF/JJK) AGREEMENT

A. The Defendants currently provide the Named Plaintiffs with an electronic folder on the Client Electronic Network for legal documents sent in by their attorneys on disc (“Legal Network Space”).
1) Following the approval of the MSOP executive director or designee, as set out in current policy, but before a plaintiff’s individual legal network space or shared legal network space is searched by MSOP staff, written notice will be provided to Plaintiffs’ Counsel about the approved search. Prior to any search of the Named Plaintiffs’ individual legal network space or shared legal network space, Plaintiffs’ Counsel will be provided with a date certain for the search with not less than two (2) business days’
1

CASE 0:11-cv-03659-DWF-JJK Document 204 Filed 07/24/12 Page 2 of 5
notice before the search, by email to dgustafson@gustafsongluek.com and kgluek@gustafsongluek.com, and an opportunity will be provided to Plaintiffs’ Counsel to be present during the search. Plaintiffs’ Counsel can waive the right to be present during the search or come to the facility to be present for the search. In any event, MSOP may search a Plaintiff’s individual legal network space or shared legal network space after the expiration of two-day notification to Plaintiffs’ Counsel of the intent to access such a space. Plaintiffs’ Counsel agree to not disclose to the Plaintiffs MSOP’s intention to search an individual legal network space or shared legal network space until after the search is complete. Upon good cause to believe that there is prohibited material in the named Plaintiffs’ individual legal network space or shared legal network space, MSOP reserves the right to remove the folder(s) or otherwise restrict access to the individual legal network space or shared legal network space pending access of the folder as described above. Defendants must immediately notify Plaintiffs’ counsel if they remove or restrict any folders in the named Plaintiffs’ individual legal network space or shared legal network space. If the Defendants do not conduct a search of the named Plaintiffs’ individual legal network space or shared legal network space after the above notification to Plaintiffs’ counsel, then Defendants shall immediately permit Plaintiffs full access to the named Plaintiffs’ individual legal network space or shared legal network space.
2) any information located or discovered in a search of a plaintiff’s individual legal network space or shared legal network space that is protected by attorney-client privilege may not be used by MSOP for any purpose, nor may MSOP make any claim that an attorney-client privilege has been waived solely by putting the documents or
2

CASE 0:11-cv-03659-DWF-JJK Document 204 Filed 07/24/12 Page 3 of 5
information in this folder. This does not prohibit MSOP from using or reporting information found during a search that would not be protected by the attorney-client privilege.
B. Policy No. 301.011, related to room searches currently applies to all Plaintiffs. However, during the pendency of this litigation, Defendants will modify that policy for the above-named Plaintiffs in the following manner:
1) Defendants will provide each of the Named Plaintiffs with a file folder (which will be marked “ATTORNEY-CLIENT PRIVILEGE”) in which Plaintiffs can store no more than (25) twenty-five pages of attorney-client confidential materials (“Confidential Folder”). This Confidential Folder may be stored in the Named Plaintiffs’ room and does not need to be kept in the storage bins. However, Plaintiffs and Plaintiffs’ Counsel understand that Defendants take no responsibility if said folder is not stored in a plaintiff’s lockable storage bin and it is accessed by anyone other than Defendants or their agents.
2) prior to an y search of a Con fidential Folder, Plaintiff and Plaintiff s’ Counsel will be pro vided with a date certain f or the search with not less than two (2) b usiness days’ notice before the search, by email to dgustafson@gustafsongluek.com and kgluek@gustafsongluek.com, and an op portunity will be prov ided to Plaintiffs’ and/or Plaintiffs’ Counsel t o be present when a Plaintiff’s Confidential Folder i s reviewed. Within two (2) business days, Plaintiff or Plaintiffs’ Counsel can waive the right to be present during the search or come to the facility to be present for the search. During this period of time, Defendants may retain possession of the Confidential Folder. Defendants
3

CASE 0:11-cv-03659-DWF-JJK Document 204 Filed 07/24/12 Page 4 of 5
shall not search or rev iew the Conf idential Folder during this period of time. In any event, MSOP may search a P laintiff’s Confidential Folder after the notif ication to Plaintiffs’ Counsel of the intent t o access such a Confidential Folder. This modification does not otherw ise delay or modify any other the requir ements set forth in polic y for a search of a client’s room or person.
3) any information located or discovered in a search of a Confidential Folder that is protected by attorney-client privilege may not be used by MSOP for any purpose, nor may MSOP make any claim that an attorney-client privilege has been waived solely by putting the documents or information in this Confidential Folder. This does not prohibit MSOP from using or reporting information found during a search that would not be protected by the attorney-client privilege.
4) if, after following the protocol set forth in paragraphs 1-3 above, upon search or review of the Confidential Folder, defendants otherwise reserve the right to enforce Facility Policy if it is determined that the contents of the Confidential Folder is in violation of law, Facility Policy or this Agreement (including, for example, containing too many pages or counter-therapeutic materials), and defendants may retain possession of the contents alleged to be in violation. However, Plaintiff and Plaintiffs’ Counsel will be notified of any such violation and, for purposes of this Agreement, will be given a fair opportunity to correct any violation for purposes of this Agreement.
5) defendants will continue to allow the Named Plaintiffs to mail to Plaintiffs’ counsel at Plaintiff’s expense any legal materials that the Named Plaintiffs want scanned and placed in the Privileged Folder. Plaintiffs’ counsel may electronically save the legal
4

CASE 0:11-cv-03659-DWF-JJK Document 204 Filed 07/24/12 Page 5 of 5

materials to a disc that can be sent to their clients to request that the contents be placed in the Privileged Folder by the Defendants, as otherwise provided for and consistent with the current Client Computer Network Policy.

Dated: July 24, 2012
By: s/Daniel E. Gustafson Daniel E. Gustafson (#202241) Karla M. Gluek (#238399) David A. Goodwin (#386715) Raina E. Challeen (#392127) Gustafson Gluek PLLC 650 Northstar East 608 Second Avenue South Minneapolis, Minnesota 55402 Tel: (612) 333-8844 Fax: (612) 339-6622
Counsel for Plaintiffs

By: s/Steven H. Alpert Steven H. Alpert (#1351) Ricardo Figueroa (#282224) Max Kieley (#389363) Assistant Attorneys General Office of the Attorney General 445 Minnesota Street Suite 900 St. Paul, MN 55101-2128 Tel: (651) 282-5700 Fax: (651) 282-5832
Counsel for Defendants

5

 
 CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 1 of 47

United States District Court District of Minnesota Fourth Division

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, Brian Keith Hausfeld, Christopher John Thuringer, Kenny S. Daywitt, Bradley Wayne Foster,
Plaintiffs.
vs.
Minnesota Department of Human Services, Minnesota Sex Offender Program, Lucinda Jesson, Kevin Mosero Dennis Benson, Michael Te$sner, Tom Lundquist, Jim Berg, Ann Zimmernan, Laurie Severson,
Greg Carlson, Dr. Elisabeth Barbo,
Mehrdad Sabestari, Terry Kneisel, Scott Benoit, Susan Johnson, Jean Seykora, John Doe and Jane Doeo (Whose true names are unknown),
Defendants.

M court *rr"*_l I bs? Duf/1,
COMPLAINT FOR VIOLATION OF CIVIL RIGHTS PTTRSUANT TO 42
IJ.S.C. 1983 JURY TRIAL DEMANDED

INTRODUCTION
l. Plaintiffs state that during involuntary civil confinement, as Patients' in the Minnesota
Sex Offender Program.2 Defendants are employees of Department of Health and Human Services3 have and continue to deprive Plaintiffs' of rights and privileges available to other patients civilly committed to the DHS. Plaintiffs have also been

I pursuant to Minnesota statue 246.01 Subd. la 'oPatienf' means a person who is admitted to the Minnesota Sex offender Program or subject to a court hold order under section 2538.185 for the purpose of assessment,

SCIANNEu odoiaCglineonstsi"s,wcearerep, rtereviaoturnsleynriesfeurpreedrvtisoioans,ooopratoietnhtes"r

services provided by the Minnesota
as enumerated in 2538.02 Subd. 15.

Sex

Offender

Program.

^" Hereinafter referred as "MSOP"

3 Hereinafter referred to "DHS''

I Dtc 2 20il

U.S. DISTRICT COURT ST PAI
'-\/"" $--

CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 2 of 47
deprived of the standards set by the Minnesota Commitment and Treatment Act.a
Plaintiffs' allege that their Federal Civil Rights to Procedural & Substantive Due
Process pursuant to the Fourteenth Amendment have been violated and that their First, and Fourth Amendment rights have been violated through the Fourteenth Amendment of the United States Constitution and Bill of Rights.
2. The Plaintiffs' cause of action includes the Reconstruction Civil Rights Act of 1871,
42 U.S.C. $ 1983, based on violations of their federal constitutional rights. Plaintiffs' further allege supplementary claims under the Minnesota State Constitution, Patients
Bill of Rights, and Civil Commitment and Treatment Act, administrative rules and
internal agency policies.
il JURISDICTION & VENUE
3. This is a civil action authorized by 42 U.S.C. $ 1983 to address the deprivation, under Color of State Law, of rights secured by the Bill of Rights of the United States. The
court has jurisdiction under 28 U.S.C. $$ 1331 & 1343(a) (3). 4. Plaintiff seeks declaratory relief pursuant to 28 U.S.C. $$ 2201 & 2202. Plaintiff s
claims for injunctive relief are authorized by 28 U.S.C. $$ 2283 &2284 of the United States Code. Plaintiffs further seek monetary, compensatory and punitive damages. 5. Venue is proper in this District pursuant to 28 U.S.C. $1391(b) as all Defendants reside in the district and a substantial part of the events and omissions giving rise to the claims occurred in this District.
ilI DECLARATORYAND INJUNCTIVE RELIEF
6. This court has the authority to grant declaratory relief pursuant to 28 U.S.C. $2201 as an actual controversy exist regarding the rights, privileges and immunities to which Plaintiff is entitled. Moreover, pursuant 28 U.S.C. 92201, this Court has authority to grant injunctive relief and any other necessary and proper relief that is deemed just
and proper by the Court.
IV PLAINTIFFS
7. Plaintiffs are all Patients and at all times mentioned herein are civilly committed
people in the Minnesota Sex Offender Program, also known as the MSOP in the State
of Minnesota in the custody of the Department of Human Services. Plaintiffs are currently confinedlhospitalized in the MSOP in Moose Lake, Minnesota,55767, or
100 Freeman Drive, St. Peter, Minnesota, 56081.
4 Hereinafter referred to "The Acf'

\
CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 3 of 47
V DEFENDANTS
Defendants are as follows:
8. The DHS is the agency responsible for overseeing the running of the State Hospitals
and protecting the Patients' rights. DHS is also responsible for policies and practices
implemented through its various agencies.
A. Lucinda Jesson is the commissioner of Minnesota Department of Human Services
(DHS) and together with other DHS officials, deputies and assistants, oversees the policies, procedures, and practices at MSOP. As head of the DHS, Commissioner Jesson's duties include the protection and treatment of Patients who are being
involuntary held pursuant to indeterminate commitment as SPP/SDP. The
Minnesota Department of Human Services, a subdivision of the govemment of the
State of Minnesota is located at 444 Lafayette Road North, St. Paul, MN 55155.
DHS through its Subdivision, Minnesota State operated Services, is the Agency responsible for the operations of Minnesota Sex offender Program. She performs
her duties in St. Paul, Ramsey County, Minnesota, and upon information and
belief has taken actions relevant to this lawsuit in that location.
B. Dennis Benson is the Executive Director of the MSOP, and is primarily located at
444Lafayette Road North, St. Paul, MN 55155. He performs his duties in St.
Paul, Ramsey County, Minnesota, and upon information and belief has taken actions relevant to this lawsuit in that location.
C. Michael Tessner is the Director of State Operated Services and is primarily located
at444 Lafayette Road North, St. Paul, MN 55155. He performs his duties in St.
Paul, Ramsey County, Minnesota, and upon information and belief has taken actions relevant to this lawsuit in that location.
D. Kevin Moser is the Director of the MSOP. Upon information and belief, he is
responsible for and has been directly involved in the Plaintiffs' violations of
constitutional and statutory rights. He performs his duties in Moose Lake, Carlton County, Minnesota, and upon information and belief has taken actions relevant to this lawsuit in that location.
E. Dr.Elizabeth Barbo is the Assistant Director of the MSOP. Upon information and
belief, she is responsible for and has been directly involved in the Plaintiffs'
violations of constitutional and statutory rights. She performs her duties in Moose Lake, Carlton County, Minnesota, and upon information and belief has taken actions relevant to this lawsuit in that location.
F. Tom Lundquist is the Clinical Director of the MSOP. Upon information and belief, he is responsible for and has been directly involved in the Plaintiffs' violations of constitutional and statutory rights. He performs his duties in Moose

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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 4 of 47
Lake, Carlton County, Minnesota, and upon information and belief has taken actions relevant to this lawsuit in that location.
G. Jim Berg is the Assistant Clinical Director of the MSOP. Upon information and
belief; he is responsible for and has been directly involved in the Plaintiffs'
violations of constitutional and statutory rights. He performs his duties in Moose Lake, Carlton County, Minnesota, and upon information and belief has taken
actions relevant to this lawsuit in that location.
H. Greg Carlson is the Acting Director of the MSOP. Upon information and belief; he is responsible for and has been directly involved in the Plaintiffs' violations of constitutional and statutory rights. He performs his duties in Moose Lake, Carlton
County, Minnesota, and upon information and belief has taken actions relevant to this lawsuit in that location.
I. Ann Zimmennan is the Security Director of the MSOP. Upon information and
belief, she is responsible for and has been directly involved in the Plaintiffs'
violations of constitutional and statutory rights. She performs her duties in Moose Lake, Carlton County, Minnesota, and upon information and belief has taken actions relevant to this lawsuit in that location.
J. Terry Kneisel is a current Program Manager of the MSOP. Upon information and
belief, he is responsible for and has been directly involved in the Plaintiffs'
violations of constitutional and statutory rights. He performs his duties in Moose Lake, Carlton County, Minnesota, and upon information and belief has taken
actions relevant to this lawsuit in that location.
K. Laurie Severson is a current Program Manager of the MSOP. Upon information
and belief, she is responsible for and has been directly involved in the Plaintiffs' violations of constitutional and statutory rights. She performs her duties in Moose Lake, Carlton County, Minnesota, and upon information and belief has taken actions relevant to this lawsuit in that location.
L. Scott Benoit is a current Program Manager of the MSOP. Upon information and beliel he is responsible for and has been directly involved in the Plaintiffs'
violations of constitutional and statutory rights. He performs his duties in Moose Lake, Carlton County, Minnesota, and upon information and belief has taken
actions relevant to this lawsuit in that location.
M. Susan Johnson is a current Program Manager of the MSOP. Upon information and belief, she is responsible for and has been directly involved in the Plaintiffs' violations of constitutional and statutory rights. She performs her duties in Moose Lake, Carlton County, Minnesota, and upon information and belief has taken
actions relevant to this lawsuit in that location.
N. Jean Seykora is rehabilitation Therapies Director of the MSOP. Upon information and belief she is responsible for and has been directly involved in the Plaintiffs' violations of constitutional and statutory rights. She performs her duties in Moose

CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 5 of 47
Lake, Carlton County, Minnesota, and upon information and belief has taken actions relevant to this lawsuit in that location. O. Defendants John Doe and Jane Doe, whose true names are unknown, are
employees of DHSAvISOP who have been responsible for violating Plaintiffs'
rights in connection with incidents described in this complaint.
P. All individual Defendants named above are being sued in both their personal and official capacities. At all times relevant hereto, all individual Defendants were
acting under color of state law.
VI STATEMENT OF EACTS
& 9. Minnesota Statues $$ 2538, 144.651 2468, promulgate the Minnesota Sex
Offender Program, and Minnesota Rules $$ 9515.3000, 9515.3100 provide sex
offender treatment to people committed as a Sexual Psychopathic Personalitys
(2538.02, Subd. 18b) or Sexually Dangerous Persons6 (2538.02) Subd. 18c).
10. Since 1939 the State of Minnesota has committed people as Psychopathic PersonalitiesT. In 1994 the Minnesota Legislature amended the statute to allow
commitment of Sexual Psychopathic Personality and Sexually Dangerous Person. The Minnesota Supreme Court and the U.S. Supreme Court held that the commitment stafutes protected Procedural Due Process, and Equal Protection.
ll.The Legislature has amended the statutes relating to the commitments of SPP/SDP almost yearly since 1994. These Amendments to Minn. Stat. $ 2538 & other related stafues have led to diminished Procedural Due Process protections, and significant
" Hereinafter ooSPP" 6 Hereinafter ooSDP'
' Minnesota ex rel. Pearson v Probate Court of Ramsey County. 309 US 270,271-2'72, 84 L Ed 7M, 60 S Ct 523
(1940)(Minnesota statue permitting commitment of dangerous individual with "psychopathic personality").
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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 6 of 47
changes in how the MSOP operates. Since the Amendments to the Minnesota Statute in 1994, the population at MSOP has increased by an alarming rate8.
l2.In 1994 the MSOP was operating in a hospital setting. The individual rooms for
Patients were adequate for their purposes. The rooms provided a regular mattress, bed, a dresser of drawers, a desk, and adequate storage for personal property. Private bathroom stalls were made available for Patients. The toilets were not in the rooms. Patients were afforded personal privacy. Patients were not locked in their rooms.
13.Patients were allowed to purchase game systems such as Playstations, Nintendo 64, Game Boy, and Playstations 2 systems, televisions, word processors, unlimited size televisions, personal furnifure, personal aquariums, computers, computer related per phials. Patients also had a choice of vender.
l4.Patients were allowed to shop at local stores, cook food on stoves and barbeques. Patients could run their own businesses. Patients were able to carry cash, conduct
personal banking and conduct transactions. Patients could also buy, sell, trade, and barter with other patients with approval of their treatment team.
l5.Patients were not restricted in forms of self expression such as; Patients were allowed to wear any type of jewelry that could not be used as a weapon. Patients wore any type of appropriate personal clothing.
8 See Plaintiffs Exhibit l: Offrce of the Legislature Auditor- Civil Commitment of Sex Offender-Evaluation Report
at3-9.
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l6.Patients had visits with family and friends. They were allowed to prepare food, or order food delivered to eat with family and friends. Vending machines were available
on visits. Visitors could drop of gifts and groceries on their visits for patients.
Patients could hold hands or place an ann around a loved one or hold their children during visits. Patients visiting hours were from l-9 pm every day of the week.
lT.Patients could make and receive telephone calls on unmonitored public pay phones,
could use prepaid phone cards purchased from a vendor of their choice. Mail
received was opened by the patient in front staff and not censored, but was inspected
for contraband. Outgoing mail was sealed by the patients and was uncensored.
Patients bought stamps for postage.
lS.Patients were not subjected to strip searches. Patients were allowed to leave the
facility with a staff escort without physical restraints. Patients could move freely on
the compound. Patients could socialize freely with other Patients in the MSOP. Patients were not locked in their rooms during count or nighttime hours. Patients were locked in protective isolation for more then 24 hours for behavioral incidents
without any due process.
lg.Patients received adequate medical care that was commensurate with community standards. All Patients who wanted received sex offender treatment.
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PRESENTLY 20.After the amendments to the statutes from 1994 through 2011, the administration of
the MSOP was replaced with previous administrators of the Minnesota Department of Corrections. As a result, the policies and procedures of the MSOP drastically
changed to a Maximum Security facility, instead of a treatment facility.
2l.The MSOP treatment center is now modeled after a modern day maximum security penitentiary. The MSOP treatment center is not accredited by the ooJoint Commission on Accreditation of Health Care Organizalion.'o Whereas nearly all other treatment facilities in the State of Minnesota are accredited. The MSOP treatment faciliff is surrounded by double-razor wire fences with roving patrols.
22.Patients' are compelled to wear fulI restraints, including: handcuffs, black box, leg
irons, and a waist chain belt anytime the patient is required to leave the secured area. While being transported, patients are placed in a small cage in the back of a van.
23.Patients are subjected to unwarranted pat searches of the body, unclothed body
searches and body cavity searches without reasonable suspicion being established. Searches are conducted in areas that never had need for searches. Plaintiffs' must be
pat searched whenever leaving the craft room in recreation, visiting area) or
vocational work areas. Plaintiffs' are subjected to strip searches upon entry to High Security Area, regardless of the incident that lead to being placed in the High Security
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Area. When a Patient refuses to comply with a strip search the facility staff will
forcibly cut off the Patient's clothing and inspect his groin and buttocks.
24.patient visiting is limited. There is a pre-approved visiting list that requires a
patient,s visitor to go through a criminal background check. The Visitor's contact is
limited to one hug at the beginning and end of a visit. The MSOP has created
draconian practices for visiting. Forcing visitors to comply with such conditions, such
as being pat searched, to other invasions of personal privacy. This works to
discourage visitors from coming back and further isolates patients from outside
contact.
2l.patierfis are only allowed three totese to put all their property in, except electronics. This includes but is not limited to: legal papers, spiritual items, clothing, and all other personal property which is kept under Patient's bed. This area for storage is three
totes.
26.patienls are forced to wear identification badges. The facility has controlled
movement policy and procedure which includes "5 minute moves" from one building to another. Metal detectors are in the hallways. There are multiple counts and one
Stand up ID Verification count per day; identical to DOC Procedures for maximum
security prisoners.

e 26% -"h"rlong by 9% inches wide by 8% inches deep'

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27.Patierfis are not allowed to purchase food or certain electronics from outside vendors. The Patients are expected to pay extremely high prices for canteen thru Minncorro. Minncor supplies mattresseso beds, Pillows, sheets, blankets, towels, and furnishings.
28. Patients are double bunked in wet cells.rr These cells contain 2 metal beds frames,
manufactured by MINNCOR, (which are less then 30 inches across from each other). A MINNCOR mattress that is hard and not supportive, two small stainless steel desks, a stainless steel toilet/sink combo are fixed in the wet cells. The double bunking has
resulted in increased sexual and physical assaults, in which the facility has
neglectfully responded too. On several occasions Patients have had incompatibilities
resulting in sexual or physical assaults. The MSOP does not take seriously the threat
of assaults of Patients and in most cases disciplined those who have reported the physical assault/sexual assault or chooses to ignore the problem altogether. The
Patients victimized are not given counseling for the victimizationl2. When the State of Minnesota civilly commits a person involuntary, it restricts his liberty against his
will, the Constitution imposes upon it, a corresponding duty to insure safety and
general well-being. When the State acts under affirmative exercise of its power to restrain an individual's liberty, then renders the Patient's ability to care for himself;
and fails to provide basic care and safety and basic needs e.g., food, clothing, shelter,
"'ln" MINNCOR is a Department of Corrections for-profit Corporation that contracts with MSOP for multiple services.
These cells do not conform with the minimal standards pursuant to law; 70 sq feet of usable floor space per
patient.
l')-' Several physical / sexual assualts have occurred; one case was recently settled, Goldhammer v. Moser, (Minn. Dist.20ll) by MSOP allowing the client to have a single room, X-BOX-360 game system, outsourced sex
offender treatment and a monetary award. One other lawsuit is pending.
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medical care, and reasonable safety, it transgresses the substantive limits on state
action set by the Fourteenth Amendment of the Equal Protection Clause.
29.MSOP Staff minimizes assaults and confrontations among the Patients, and is instead
concerned with assaults on themselves. In fact, the Minnesota Legislafure adopted
Minnesota Statute 609.2231 Subd. 3a,to protect staff from assault. This particularly
applies only to employees of MSOP who are assaulted by Patients of the MSOP. State prisoners do not sustain the same penalties as Patients in MSOP. The penalties for a patient at MSOP are 5 years statutory supervised release time and require more prison time. This is an unequal application of law, because the SPP's and SDP's are citizens with the full accompaniment of civil rights, not convicted persons with fewer rights. This demonstrates how civilly committed sex offenders are a new class of, and/or race of citizen with diminished civil rights by virtue of sexual predilection.
30.Patients may no longer possess personal computers, laptop computers, and computer
software or storage discs of any sort. Nor are patients allowed access to printers,
copiers, scanners, or any access to the internet. This further draws patients away from
society because they could be earning college degrees, working, or just emailing
loved ones.
31. Patients are no longer allowed to purchase game systems, personal furnifure, personal bedding, and other personal property that was once allowed.r3 Patients are subjected
t3 On, patient is now allowed an X-Box-360 as part of a lawsuit settlement
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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 12 of 47
to having their personal property arbitrarily considered contraband and seized by the
MSOP. Patients are forced, at their own expense, to send out property or have it disposed of. The MSOp allows 10 days to send out property or destroys the Patient's
property. Many of Patients have lost thousands of dollars in property.
32.patients are restricted from possessing certain commercially produced media (books
& movies) which are determined to be contraband without consultation with the patient charts to determine if such media would be harmful or otherwise counter-
therapeutic for the patient to possess. A11 movies not on a pre-approved list must be reviewed by security staff. On no other authority, and without consulting the patient's
chart, the security staff may determine if the movie is contraband or not. There is no designated appeal process; and no standard of what is and what is not allowed. This
Court has already ruled on this issue in another case: Kruger v. Goodno.ta
33.The MSOP does not store Patients'property that has previously been allowed and is
now considered contraband. Patient's are denied due process if they challenge the
MSOP on property issues. Patients must submit a request to appeal the denial of property. The request takes ten business days to be answered. By the time the first
request is answered, the property has already been destroyed. Patients must submit at
least two (2) requests before they may file a grievance; which is well beyond the ten
(10) days to remove the ProPertY.
I 4 Docket No.'s: 05-cv- I 45 I (JMR/FLN); and 05-cv- I 504 (JMR/FLN)'
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34. The State of Minnesota has held that the MSOP is not liable for any purposeful damageo destruction or loss of properfy because it belonged to Patients at the MSOP
under its tort actr5
35. The MSOP also opens all Patients packages received at the facility (whether ordered
or not), disposes of the original packaging and shipping boxes. If the item is later deemed contraband the Patient must send it back or it will be destroyed. Most vendors will not accept the item without the original packing. The Patient then
suffers the loss of the property or money.
36.The MSOP staff wears uniforms that are identical to the uniforms worn by the
Department of Corrections. An "A-Team" and ooB-Team" are assigned to monitor the facility and are authorized to use force against a Patient, including, but not limited to: physical force, chemical spray, and the ability to forcefully cut off the clothing and do an unclothed body cavity search. Staff members are disrespectful towards the Patient' making jokes about the Patient population, such as an e-mail passed around by the staff that stated, "What is the difference between Patients at MSOP and inmates at
DOC?" "The prisoners have a release date and get to go home." Other staff and administrators have repeatedly told the Hospital Review Board. "We will continue to do what we want until we are sued and a court order says different." The arrogant
abuses of power occur because the Commissioner of DHS delegates the entire

15 See Minnesota Stat. $ 3.736 Subd. 3 (m)

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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 14 of 47

commissioner's oversight of the MSOP, back to the facility director. Therefore, there is no o'outside" entity overseeing the abuses of the MSOP.

3T.Patients' vocational work assignments are limited to menial labor. Patients' must
perform unit janitorial maintenance work to progress in treatment or receive
vocational placement. Patients do not have access to facility jobs which would cause the patient to be more employable; such as plumbing, electrical, HVAC or any other vocational programs which would afford Patient's actual and meaningful job skill for
re-entry into society. Further, regardless of a patient's previous college degree, or age, he must maintain certain educational qualifications to hold a vocational work
assignment or advance in treatment.

38.Most policies and procedures implemented since the hire of Defendant Benson have
been adopted from the DOC, including but not limited to: Use of Force; Office of
Special Investigators, Intelligence Information Gathering, Evidence Policy, Internal Affairs Investigations, Patients' Communications, Programming Policy, Behavioral
Expectation Reports,l6 Client Grievances, Client Request Policy, and Visiting
Behavioral Expectations, Mail Policy, Property Policy, Visiting PolicyrT.

39. The Behavioral Expectations policy and handbook was issued in 2009 (updated in
2011) detailing behavioral violations, consequences and a Disciplinary Due Process procedure for BERs. The procedure denies Due Process, Patients are not allowed to

l6 Hereinafter'.BER." 17 See Exhibit 3.

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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 15 of 47

present evidence, cross examine witnesses, or face their accusers in a formal hearing. Patients' are not given copies of the incident reports or evidence that is being used against them to impose disciplinary restrictions. Disciplinary reports or behavioral
expectations directly affect progression in treatment and the Patient's freedom. Disciplinary restrictions will cause at least a 6 month delay in progression in treatment. Patient's who choose to appear before a formal hearing panel, are
punished for requesting the hearing. The hearing board is made up of employees that
have an interest in delaying the treatment progression of the Patient. The hearing board is not impartial and the appeal process lacks due process as well. A Patient may appeal to the facility director only. Most of the policies and procedures are
implemented by the director. The MSOP has a history of backing up Incident Reports
written by staff. The informal sanction system is equally flawed. A staff member
may write-up a BER and issue consequences without any Due Process being provided whatsoever. The Patient is not allowed to refute the evidence and is not provided the
evidence that led to the BER. The clinical team issues an Individual Program Plan
that expands restrictions and limits the rights of Patients for up to six months without
any Due Process; it can also be extended without due process. In addition to BER's
and the consequences given by the Behavioral Expectation Unit, the clinical team and vocational services utilize Individual Treatment Plansls and Treatment Memos to
issue further consequences on patients. The vocational services will often remove the
Patients from the vocational Workfor Pay Progrqm or reduce the amount of hours he

18 Hereinafter "ITP"

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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 16 of 47
is entitled to participate as a result of getting a BER. Plaintiffs' are not convicted
criminals, but Mental Patients, the effect of the BERs are punishment, complete with detention. Plaintiffs cannot lawfully receive punishment absent due process.
40.Linens and commissary are provided by MINNCOR. A prison industry contracted at the MSOP since 2008. Patients can no longer possess personal bedding, towels, washcloths, blankets; and have no choice of vendor to buy food, hygiene, over-thecounter medications etc... Plaintiffs must purchase all food, hygiene, over-the-counter medications from MINNCOR. The MSOP receives a commission from MINNCOR on all commissary sold, over the counter medications sold, and phone time/usage purchased. Patients continuously object to MINNCOR and plead to get rid of it and contract with other local suppliers.
41.The Defendants limit the Patients Bill of Rights to Plaintiffs pursuant to Minnesota
Statues $$ 144.651 and 2538.03 by placing all patients on perpetual Administrative Restriction.
42,Medical services are now provided by the Department of Corrections contractoro
"Correctional Medical Services." Medical care has deteriorated and many Patients' have suffered injuries as a result. The MSOP now requires all Patients to purchase
over the counter medications from MINNCOR and will not provide OTC
medications. The lack of medical treatment at the MSOP is so neglectful that it has resulted in the serious harm of Patients. More then 30 Patients have died at the
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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 17 of 47
MSOP, some as a result of negligence, and others have gone untreated for salmonella
poisoning, and diabetes complications; lost digits, waiting weeks for an x-ray of
broken bones, etc...
43.The MSOP has, on several occasions, told Minnesota legislatures that because of
budgetary restraints they would be forced to release sex offenders into the community
if not given the funds to operate the MSOP. Because of budgetary cutbacks, sex
offender treatment, which was already lacking, was cut from 10 hours a week to 6 hours a week. A diet of beans, rice and processed cereal based foods has become the main staple for nutrition. Patient recreation has been reduced; the recreation gym has
been halved to create a make-shift dinins room.
44.The MSOP however, has built new break rooms for staff with new vending machines,
computers with internet access, and staff refrigerators. They have purchased new
vehicles and installed (literally) hundreds of new cameras. They have purchased new uniforms, shoes and boots for staff; new equipment such as: weapons, pepper spray, and other riot gear; even though there has never been a riot at the MSOP since its inception. The facility also purchased new computers and phone systems for staff.
45.Patient personal computers were removed from the MSOP by February 28,2008. A Patient network was established with four (4) computers per 96 patients to perform
word-processing and other simple tasks, The MSOP seized all removable media such as floppy disks and CD-ROMs and have instructed Patients that they will have to print
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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 18 of 47

their electronic files instead of allowing them to save files on electronic media to send
to courts, attorneys or family etc... This restriction is overly burdensome on the
Patient and his restricted space. Patient's have been denied and restricted from using
or accessing the Internet even though no individual reasonable suspicion has ever been established to warrant the restriction. The MSOP also already possesses the commercial software necessary to monitor an Internet Server, which is already online for employees of the MSOP. The MSOP denies patients any and/or all technologies,
i.e. cellphones, Ipads, MP3 Players, etc...

46. Plaintiffs' allege that the telephone rates are so exorbitant as to deprive Patients' of
reasonable and meaningful telephone access. The MSOP contracts with MINNCOR and Global Tel linkte to provide telephone service to Patients at the MSOP. The
MSOP receives .49/, kickback from every dollar of telephone time, purchased by Patients from the MSOP. It is therefore in the interest of the MSOP to contract with
the highest bidder.

47.The MSOP & Global Tel Link may violate FCC laws; under maximum price

restrictions. Instead of competition driving the cost of Patient telephone calls down, the competition for this prison-like telephone contract with kickback naturally drives the cost up. In this setting, it violates civil rights. Plaintiffs' are not prisoners, are not
convicted nor sentenced to punishment, which is the only exception for price

restrictions as set bv the Minnesota Public Utilities Commission.

t'A

who contraits with many prisons to provide telephone seryice at inflated prices.

"o-puny

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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 19 of 47
48.Many restrictions imposed by the MSOP have risen to a level of abuse by the
standards of professional judgment, decision, or conduct.
49.Nearly every policy and procedure implemented since 2008 goes far beyond the scope of Professional Judgment and is now for staff convenience. The real mission of the MSOP now is institutionalization, preventative detention and punishment. There is no rehabilitative pu{pose. None of these restrictions were neaessary in the prior years
to maintain control of the facility. The restrictions and changes have actually created a hostile environment that encourages a sense of hopelessness, powerlessness, and
fear.
50. The MSOP has a history of retaliating against, and holding back Patients from
progressing in treatment for exercising their rights to grievances and lawsuits.
51. Many Patients' in the MSOP have no legal representation and have been programmed and are encouraged by the MSOP to not challenge the treatment program.
52.In 2006, the Sth Circuit Court of Appeals ruled that 'oNeither the Supreme Court nor this court has determined the extent to which the Constitution affords liberty interests
to indefinitely committed dangerous persons under the Matthews balancing test.
Since a person has been civilly committed as a dangerous person, his liberty interests are considerably less than held by members of a free society2o. As compared to a
20 See Wilkenson v. Austin, 545 U.S.209 , 125 S. Ct. 2384, 2395-96, 162 L. Ed. 2d, 174 (2005); Morrissey v. Brewer ,408 U.s. 471,481,92 S. Ct.2593,33 L. Ed.2d 484(1972)
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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 20 of 47

prison inmate, however, a committee was entitled to more considerate treatment and
conditions of confinemenf t. Civilly committed sex offenders retain certain rights. In
particular, they have a right to receive treatment or other training that will give them
an opportunity to regain some or all of their rights to liberty22.

53. In a report authored by the Office of the Legislative Auditor,23 it states in part: "The Minnesota's civil commitment laws do not violate offenders' fundamental rights to liberty and Due Process so long as treatment and periodic review is provided. While civilly committed sex offenders in Minnesota, therefore, have a right to adequate
treatment, in the United States. The United States Supreme Court has held that courts should defer to the judgment of treatment professionals in judging what treatment is
constitutionally adequate in the context of civil commitment programs. The standard
for reviewing whether treatment is adequate is whether treatment exercised
professional's judgment in running the treatment program. While this may be a low
bar for judging treatment programs, a federal court found that the program administrators in the state of Washington failed to exercise their professional
judgment in running their civil commitment program, resulting in a 13 year injunction while the program corrected the treatment program. In that case, the court found that the treatment program had so departed from minimal professional standards that the

2l Youngberg v. Romeo, 457 U.S. 307, 322,102 S. Ct. 2452, 73 L. Ed 2d 428(lgS2); Senty Haugen v. Goodno, 426

)-.-,FY.o2udn8g7b6e(r2g00v6. *RthomCier)o,S4e5e7alUso.SH.y3d0ri7c,k32v.2H, u1n0t2er,S5. 0C0t.F2. 34d5927,783(9Lt.'FC,dk2.2d004728(l982xwhole this case did not

explicitly apply this holding to civilly committed sex offenders as well, see Turay v. Seling et al, 108 F. Supp. 2d

-,?"

I 148(W.D.Wash. 2000)
See Plaintiff Exhibit I &

2.

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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 21 of 47
treatment professionals must not have based their treatment decisions on their
professional judgment. Some of the conditions which led to the injunction included: inadequate staffing, inadequate training of staff regarding the clinical mission of the facility, the lack of individualizedtreatment, the absence of arrangements for Patients' to transition to being released, inadequate provisions to allow Patients' families to
participate in treatment, and a punitive treatment environment2a. As a result, it is important that any civil commitment program for sex offenders offer adequate
treatment to those in the program. A court could consider failure to release offenders from civil commitment as evidence that inadequate treatment is being provided or that
the purpose of the program is punitive rather than rehabilitate. It should be noted,
however, that participation in treatment is voluntary. Residents at a civil commitment
facility may decline treatment, but a facility must at least offer each resident the
opportunity to participate in treatment2s.
54. Patients are not billed for individualized carc. Instead, patients are billed a per diem
rate regardless of the individual costs. There are many levels of care and many varying levels of cost, depending upon the programming the patient receives or otherwise requires. Yet all of the patients are charged at one daily rate regardless of
individual needs.
24 Turuy v. Seling et al, 108 F. Supp. 2d 1148(W. D. Wash 2000). 25 See Plaintiff Exhibit 2 at 5l-55
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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 22 of 47
55.For patients who have health insurance coverage, the billing system doesn't work.
Plaintiffs who have health insurance cannot use that coverage to pay the costs
associated with the MSOP. This is because the MSOP does not follow the accepted
billing procedures, is not accredited and/or otherwise does not meet the standards of recognized mental health care. In other words, patients who are civilly committed as
mentally ill to the MSOP are receiving such deficient treatment, under such poor
conditions, that it cannot be paid for through mental health insurance coverage.
56. The MSOP does not provide constitutionally adequate treatment. Currently the MSOP has changed the programming approximately every three years. In doing so, a Patient must literally start treatment all over, The practice violates the Patient's right to due process and his constitutional right to adequate treatment and to release from commitment. There are plaintiffs herein that have been in treatment for more than2}
years.
57. Nearly all of the treatment is designed to deal with the conditions of confinement and
how the Patient is adapting to institutionalization rather than rehabilitation for committing illegal sexual acts. Nearly all treatment groups do not involve sex
offender specifltc treatment, which is the pu{pose. Instead therapy focuses largely on the criminal or convict attitudes that are associated with long-term institution alization and/or the current prison confinement, not sexual offending.

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58. Wyatt v. Stickney26 demonstrates the minimum constitutional standard for
confinement in treatment centers. The U.S. Supreme Court in YoungbergzT refened to Wyatt v. Stickney as a controlling case regarding constitutional standards for civil commitment. The Eighth Circuit has adopted and recognized these rights.28 In Wyatt, the court stated: ooThe Patients for the most part, were involuntarily committed through non-criminal procedures and without the constitutional protections that are afforded Defendants in criminal proceedings. When Patient's are so committed for treatment purposes they unquestionably have a constitutional right to receive such individual treatment as well as give each of them a realistic opportunity to be cured or
to improve his or her mental condition."2e Adequate and effective treatment is
constitutionally required. ooTreatment efforts must be directed to that aspect of his behavior which caused him to be classified as dangerous so that he has a reasonable opportunity to be eventually discharged from maximum security confinement. To hold otherwise would certainly otransform the hospital into a penitentiary where one could be held indefinitely for no convicted offens..rrr30 The purpose of involuntary
hospitalization for treatment purposes is treatment.

)A
]"

Wyatt

v. Stickney, 334 F. Supp. 1341 (M.D.

Ala.l97l);344

F. Supp. 373,

(M.D.

Ala.l972)

''Youngberg v. Romeo, 457 U.S. 307,322,102 S. Ct. 2452,73 L. Ed 2d 425(1982)

28 See Coley v. Clinton, 635 F.2d,1364,1375 (Sth Cir. 1980).

29 to w.'outt.

30 Eckerhart v. Hensley, 475 F. Supp.908,9l5 (MI D. 1979);citing Ragsdale v. Overholser, 108 U.S. App.

D.C.308, 315, 281 F.2d 943,950(1960).

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59. The MSOP, unlike the treatment programs offered in Wyatt, or other states, does not offer a realistic opportunity to be cured/improve patients' condition or be released3r.
In the MSOP, the Patient is held in penitentiary conditions that violate his
constitutional rights32. The treatment program offered is a complete failure. In fact, in its 20+ year history one Patient was granted provisional discharge 20 years ago, but was later returned for a technical violation to the facilitv and died while confined.
60.In evaluating the minimal Constitutional professional standards of care as applied in Wyatt, for adequate treatment, the MSOP comes up short. The following are but a
few examples of the Wyatt Standards:
6l.IV. Humane Physical and Psychological Environment 15. Residents shall have a
right to dignity, privacy and humane care. [In the MSOP a staff member can view the Patient on the toilet, in the shower, or while getting changed in his room by opening a window or flap for 'hellness checks." These checks are done at random intervals. The right to dignity is taken away by the policies that allow the facility to cut off the Patients clothes and perform an unclothed body search].
62.11. Adequate Habilitation of Rssidents, 3 c. Residents shall have a right to the least
restrictive conditions necessary to achieve the purposes of habilitation. To this end,
the institution shall make every attempt to move residents from more to less
3r See plaintiffs Exhibit 2 at 5t-71 32 rd.

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structured living; [There are no least restrictive conditions in the MSOP. It is
designed to mirror maximum-security pisonJ.
63. IV. Humane Physical and Psychological Environment 19. Residents shall have the same rights to telephone communication as Patients at [] public hospitals, except to the extent that qualified Mental Health Professional responsible for formulation of a particular Patients treatment plans writes an order imposing special restrictions. The written order must be renewed after each periodic review of the treatment plan if any restrictions are to be continued. Patients' shall have an unrestricted right to visitation with attorneys and with private physicians and other health professionals. [In the MSOP, Patients phone conditions are much less desirable than others committed
under The Act. The MSOP does not apply restrictions to individual Patients, the
restrictive phone policies were applied to every MSOP Patient in the facility without any reviews or identification in the individual treatment plans. The Patients' phones have been over charged and overly exploitive of the conditions for why Patients' are
here. When the phone is answered it will say the call is originating "from a client at
the Minnesota Sex Offender Program.'o The cost is $5.00-$6.00 per 15 minute call.
This practice of price-gouging limits the Patients right to communicate with his family. Most Plaintiffs survive on a monthly $89.00 General Assistance check and
cannot cover such a large expense.]
64.IV. Humane Physical and Psychological Environment 20. Residents shall be entitled to send and receive sealed mail. Moreover, it shall be the duty of the institution to
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facilitate the exercise of this right by furnishing the necessary materials and
assistance. [The MSOP Patients mail is not only opened outside the presence of the
Patients but censored as well. All outgoing mail, except for legal mail, goes to the
mailroom unsealed to be censored and sealed, Some Patients mail is never received.
The facility mailroom, property department, office of Special Investigation and the clinical team can review the Patients mail prior to him receiving the mail. Any one of
these departments can consider the correspondence contraband for whatever reasons and the Patient does not receive his mail, but does receive notice of undelivered mail.
65. II. Adequate Habilitation of Residents 35. Each resident shall have an adequate
allowance of neat, clean, suitably fiuing and seasonable clothing. [The MSOP does
not provide any clothing. It is the Patients responsibility to provide clothing for
himself. Patients will be punished if they give clothing to another Patient in need of
clothing.
66.Training Tasks and Labor, (l) Residents may be required to perform vocational
training tasks which do not involve the operation and maintenance of the institution, subject to a presumption that an assignment of longer than three months to any task is not a training task, provided the specific task or any change in task assignment is: (a)
An integrated part of the resident's habilitation plan and approved as a habilitation
activity by a Qualified [] Professional responsible for supervising the resident's
habilitation; (b) Supervised by a staff member to oversee the habilitation aspects of
the activity. (2) Residents may voluntarily engage in habilitative labor at non-program
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hours for which the institution would otherwise have to pay an employee, provided the specific labor or any change in labor is: (a) An integrated part of the resident's habilitation plan and approved as a habilitation activity by a Qualified [] Professional
responsible for supervising the resident's habilitation; (b) Supervised by a
staff member to oversee the habilitation aspects of the activity; and (c) Compensated
in accordance with the minimum wage laws of the Fair Labor Standards Act, 29
U.S.C. 206 as amended,1966.
6T.Personal Housekeeping Residents may be required to perform tasks of a personal housekeeping nature such as the making of one's own bed. Payment to residents pursuant to this paragraph shall not be applied to the costs of institutionalization. Staffing shall be sufficient so that the institution is not dependent upon the use of residents or volunteers for the care, maintenance or habilitation of other residents or for income-producing services. The institution shall formulate a written policy to protect the residents from exploitation when they are engaged in productive work.
[The MSOP requires a Patient to participate in the vocational work for pay program in
order to progress in treatment. Patients in addition are forced to perform building maintenance jobs to matriculate through treatment; or receive other vocational work
for pay jobs.l
6S.Physical Facilities 38. A resident has a right to a humane physical environment
within the institutional facilities. These facilities shall be designed to make a positive contribution to the efficient attainment of the habilitation goals of the institution. [At
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the MSOP, the psychological environment is one of hopelessness and fear. The mere fact that the only persons released are those that have died, the factthat the facility implements DOC policies and procedures that continually punish the Patients, and the fact that security and clinical staff are directed to punish as much as possible, make the environment inhumane and extremely stressful. The physical environment of the
MSOP mirrors a maximum security prison. On most of the units, cameras are positioned to peer inside the Patient cells. Staff wears uniforms that resemble the
DOC Officers complete with military style insignia. Metal detectors are positioned in hallways. The facility prohibits any type of decorating of the halls or cells. Patient
cells are the same as any standard prison wet-cell complete with a metal toilet. All
Patient properfy must fit into three small plastic bins stored under the bed.
Additionally, Patient' s deemed SPP33/SDP3a have cellmates.l
69. The report by the Minnesota Office of the Legislative Auditot's clearly indicates that
violations of the conditions of confinement and lack of adequate treatment are present. A question of constitutionality is present. It is the courts jurisdiction to
determine whether or noto the MSOP is so punitive that it offends Due Process.
70. As a result of the Defendants above-described actions, Plaintiffs have suffered great harm and damages including but not limited to: pain and suffering, emotional distress,
33 Defined as an utter lack of control over sexual impulses. 34 Defined as only enough control to plan next sexual assault.
" Id Plaintiffs Exhibit 2.
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embarrassment, humiliation, past and fufure medical expenses, lost earnings in an
amount to be determined.
VII STATEMENT OF CLAIMS
7l.On or about March,2008, Mr. Dennis Benson resigned his position as the Deputy
Commissioner of Corrections and was named Executive Director of the MSOP by the Minnesota Department of Human Services. It is unclear whether Mr. Benson has any actual expertise to operate or manage a treatment facility.
72. Since the hire of Mr. Benson, he has hired the following people from the Minnesota Department of Corrections: Kevin Moser, Gregg Carlson, Timothy Gorr, Erick Skon, and other former employees of the Department of Corrections; including clinical staff.
73. Since Mr. Benson has taken over the role as the Executive Director of the MSOP, he has restricted many of the civil rights Plaintiffso previously enjoyed and changed to
the standards of a maximum security prison facility. Examples would include the following: Unjustified Intrusion of Personal Security & Privacy,Lack of Treatment, Monopolies created through MINNCOR" for sole gain and benefit of the Minnesota Correctional system. Plaintiffs' have been punished and abused through threats; restricted visiting; restricted property; censored mail; monitored calls; restricted
personal physical movement; and disciplined without due process of law.
74. Defendants in concert with Mr. Dennis Benson have and continue to violate
Plaintiffs' Fourteenth Amendment Rights through violations of the First, and Fourth

CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 30 of 47
Amendments of the Bill of Rights as enumerated in the Constitution of the United
States of America.
75. Defendants are billing committed Patients at a group rate instead of individuals with individual treatment issues. Defendants bill each Patient approximately $286.00 per Diem regardless of acfual treatment costs. It makes no matter whether the Patient has more or less acfual health care, education, or treatment needs. The costs are spread across the board. This indicates some other form of treatment and not individualized sex offender treatment: the actual reason for the involuntarv civil commitment.
76. Defendants have violated the Plaintiffs' right to be billed for only the treatment they receive. Defendants further deny Patients requests for itemized billing statements to reconcile differences. Such actions violate the fair debt and trade practices.
TT.Defendants have violated Plaintiffs' due process rights by implementing prison policies and rules written by the Minnesota Department of Corrections which are designed for the punishment of offenders convicted of crimes. Said policies are a
substantial departure from the accepted standards of professional judgment U.S.C.A. Const. Amend. 14.
78. Defendants have violated the Plaintiffsi right to receive proper care and treatment, best adapted to rendering further supervision unnecessary. In addition, Defendants have failed to give each committed Patient the right to an individualized behavioral
specific sex offender treatment plan.
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79. Defendants have restricted the Plaintiffs' right to acceptable treatment practices and have instead subjected them to be experimented on through an ineffective treatment process with ineffective, undertrained therapists to thwart the release of committed
Patients.
80. Due to the above, Defendants violate Plaintiffs' Fourteenth Amendment Rights
through the First, Fourth Amendments
Sl.Defendants have violated the Plaintiffs' right to corespondence through email,
uncensored mail, unmonitored telephone access and United States mail.
82. Defendants have violated the Plaintiffs' right to unintemrpted sleep.
S3.Defendant's force Plaintiffs to perform cleaning of common areas as part of their
treatment programming; or to be placed in the Vocational Work for Pay program.
84. Defendants have restricted the Plaintiffs' freedom of right to possess personal
property for which clients purchase. All property must fit into three totes.
VIOLATIONS OF FOURTEENTH AMENDMENT
85.The Fourteenth Amendment requires that civilly committed persons not be subjected to conditions that amount to punishment within the bounds of professional Judgment. Moreover, due process requires that the treatment, conditions, and duration of
confinement for civilly committed persons bear some reasonable relation to the
purpose for which person is committed. The MSOP fails the above miserably.
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86. Advancement/Progression in treatment: In order to advance to sex offender
specific treatment, Patients are required to perform two (2) hours per week of general maintenance/j anitorial work.
87. Vocational work for pay: Patients are required to perform two (2) hours of general
maintenance/janitorial work, to maintain a work for pay position.
88. Plaintiffs' are told to perform labor to advance in treatment or they will not advance.
If patient fails to take an active role in work, his chances of advancement are non-
existent. Forcing patients to work under such conditions shows that treatment at
MSOP in view of writer is a sham. It presents a picture of a treatment program solely in existence for profit at all levels of Patients expense.
INADEQUATE DIET: 89. The diet for residents shall provide at a minimum; the recommended daily dietary
allowance as developed by the National Academy of Sciences. Menus shall be
satisffing and shall provide the Recommended Daily Dietary Allowances, by the
National Academy of Sciences. In developing such menus, the institution shall utilize
the moderate cost food plan of the United States Department of Agriculture. The
institution shall not spend less per Patients for raw food, including donated food, than the most recent per person costs of the Moderate Cost Food plan for the Northern
region of the United States, as compiled by the United States Department of
Agriculture, for appropriate grouping of residents, discounted for any savings which
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might result from institution procurement of such food. The MSOP, food contractor (CWf;:6 continually shortens meals or just doesn't deliver what is on the menu. Meals are poorly prepared and in some cases handled without caution to the clients. One incident involved patients having salmonella and serving food in dining. The conditions that existed for this are a clear example to how the food contractor (CSIF) continues to ignore and cause unsafe conditions for the institution. Food proportions
are rationed out at a lesser degree then what menu states. Eight ounces of French fries
equate to a 2-3 oz size of fries,37 roast beef is course-ground to a degree that it
amounts to a fourth of the weighted amount on the menu.
EXCESSIVE RESTRICTION:
90.The Plaintiffs' allege that conditions of confinement at the MSOP are: (1) the
conditions of confinement are overly restrictive, and (2) the sex offender treatment is very little to non-existent sex offender specific treatment. Plaintiffs' point out the
MSOP physical structure and layout are that of a penitentiary environment that is counter therapeutic and inappropriate for the treatment-based nature of Plaintiffs' civil confinement. Plaintiffs' also allege that the MSOP correctional counselors, also
known as security counselors, impose excessive restrictions on personal movement, conduct inappropriate room and personal searches, and improperly use seclusion as a vehicle for punishment, in violation of accepted professional standards ofjudgment.
36 Th, true name of the company unknown to Plaintiffs. 37 CWF equates volume & weight to be the same measurement; so Patients receive a cup of fries.

CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 34 of 47
INADEQUATE TREATMENT:
9l.Plaintiffs'allege that the treatment provided at the MSOP is constitutionally
inadequate. Plaintiffs' allege that the MSOP violates accepted professional standards of judgment pertaining to informed consent and access to treatment. Specifically,
Plaintiffs are required to sign a consent form that purportedly contains false and
misleading statements, as well as a waiver of confidentiality that is excessively broad.
Plaintiffs' charts are disclosed to the Minnesota Attorney General and the DOC if a
Patient is on supervised release. Indeed, Plaintiffs note that since 1994, there has been no release of any Patients back to the communitv.
MSOP PHYSICAL STRUCTURE AND LAYOUT: 92.The physical structure of the MSOP is a maximum security, prison facility, rather
than a treatment facility or traditional mental health facility. The conditions are, but not limited too: Numerous guards and observation posts, a central security system,
continually locked-doors, small prison wet-cells that are double bunked, arbitrary cell searches, invasive body searches and significant restrictions on physical movement.
93. On July 1, 2011, the MSOP facility experienced a power failure due to storms in the area. In complex (1), the ventilation, water, and electricity were all affected by this power failure. Security staff called for all patients to lock themselves into their cells. Many patients refused to be locked into such unsanitary and inhumane conditions
because staff has a history of not caring for patient's rights or well-being in

CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 35 of 47
emergency situations. Many Patients with DOC time were violated for not following staff orders. Many others were disciplined for sitting outside their cells.
94.On December l,20ll, patients were involuntarily locked into their cells for "securifit
reasons, " in continuation of the previous night lockdown. Unbeknownst to patients,
the MSOP planned to shut off water for that morning. Patients woke up to conditions where they had no water in sinks or toilets. Regardless of the unsanitary conditions,
they were kept on lockdown with a cellmate during this time. Some were forced to eat and exist for more than two hours in a cell where another patient had used the toilet without the ability to flush the feces. This was done with malice as it was a
planned event.
RESTRICTIONS ON MOVEMENT: 95. The restrictions on movement at the MSOP are identical to a maximum security
correctional facility. Nearly all of the restrictive practices are identical to the DOC
since 2008 and were implemented wholesale from established DOC policies. Room doors are locked at9:45 pm through 6:25 am.
96. When Patients leave and return to the facility, they are strip-searched even though they are never out of security guards sight, all Plaintiffs are placed in handcuffs, leg irons, with a black box complete with waist-chain; then pushed in a wheel chair to the transport vehicle where he is placed into a small cage inside the van. No Heightened Scrutiny applies to Equal Protection claims based on violations of civilly confined
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sexual offenders' liberty interest in freedom from bodily restraints and personal
security, and fundamental right to access to the court. Plaintiffs' are exposed to many locked doors, and continuously on camera, or security staff.

9T.PIaintiffs' are shackled to black-box restraints including: handcuffs, waste chains, leg
irons & placed in a wheelchair pushed by a uniformed guard anytime they have
occasion to leave the secured perimeter. This happens arbitrarily regardless of risk and even though Plaintiffs' are under constant personal surveillance and supervision by two uniformed staff. The black box is a security instrument that covers the linking chain and keyhole on handcuffs, and is intended to make it more difficult for a person to remove handcuffs. The MSOP started using them after Defendant Dennis Benson became Executive Director of the MSOP. To date there has never been an escape on
transport from the MSOP.

MILITARYIPOLICE UNIFORMS/ACTIONS :

98.Nearly all Plaintiffs' have been incarcerated for many years in prison, the requirement

compelling staff to wear military police style uniforms produces an unhealthy and

not counter-therapeutic environment that is

conducive to a treatment setting.

Plaintiffs' are civilly committed after ajudge specifically ruled that the many years in

prison did not help the Plaintiffs'. Security personnel could accomplish their duties

wearing more casual dress that does not exasperate Plaintiffs reality to their status of

being less than other humans/citizens.

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USE OF THE HIGH SECURITY AREA: 99. The High Security Area, known also as HSA. This is an area used to isolate patients.
The initial determination is made by a lead A-Team member. A-team staffs are the staff used to extract patients during an outburst for any number of reasons. Seclusion is used as a convenience for staff and method of punishment to the Patients. Recent examples are: when a patient came to the desk earlier than his allowed restriction break, A-team was called to respond. Patient went to HSA because of this oversight of being 2 minutes early for his restriction break. There are too many excuses for staff to isolate patients as a convenience.
YIOLATIONS OF FIRST AMENDMENT
100. An amendment to the constitution that guarantees freedom of religion, freedom of speech, and freedom of the press, as well as freedom of association (the right "peacefully to assemble") and the right to petition the government for redress of
grievances. Defendants deny the Plaintiffs freedom of communication such as: a) use
of the internet; b) unmonitored & unrestricted telephones; c) uncensored mail and d)
other available technologies.
. 101 Defendants deny Patients Internet access arbitrarily whether or not such restriction
is actually necessary for the safety and security of the institution and/or public on an individual basis.
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102. Telephones are monitored. Patients don't have the ability to receive incoming
calls. Telephones are charged at rates which violate FCC price allowances as set and regulated by the Minnesota Public Utilities Commission.
103. All mail leaving the facility and received at the facility is subject to censure. The only exception is mail going to or mail received from an attorney or government
entity.
104. Patients do not have the ability to communicate with voicemail or answering
machines for the purpose of leaving messages. Patients are prohibited from calling toll free numbers to conduct business with sociefv etc...
105. The MSOP has a vested interest in getting kickbacks from the prison telephone carrier, Global Tel Link where it receives .49(, of every US Dollar of phone-time
purchased by Patients of the MSOP.
VIOLATIONS OF FOURTH AMENDMENT
106. An Amendment to the Constitution prohibiting searches and seizures of properly
without search warrants and issued only upon Probable Cause. While Defendant's
need not show probable clause, Defendant's must have a reasonable suspicion that the Patient has contraband before the invasive searches.
I07. Reasonable suspicion - specific, objective information, rational inferences
reasonably drawn from those facts based on experience, and individualized suspicion
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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 39 of 47
(i.e., suspicion regarding the person to whom the request is made) that a threat to facility safety and security exists. Reasonable suspicion also requires the contraband, that is the subject of the search, is believed to be concealed on the person orpersons,
in the person's vehicle, or in the area to be searched.
108. Pat search - an inspection of a person, using the hands, which does not require the person to remove clothing, but may require the removal of shoes for inspection.
Which is used without any reason other than to violate a Patient's privacy without first establishing a reasonable suspicion that the Patient possesses any contraband?
109. Defendants violate the Plaintiffs' civil rights when they conduct cell searches
(shakedowns) arbitrarily without any reasonable suspicion of contraband. These cellsearches are called random room searches. Defendants claim that this occurs bv a computer randomly selecting cell numbers to be searched.
I10. Defendants violate the Plaintiffs' civil rights when property is seized as
contraband even though the property is currently allowed, or has been previously allowed into the facility. Property is also seized from Patients only to compel the Patient to provide proof that the properly seized belongs to the Patient it was seized
from.
111. Defendants violate the Plaintiff s civil rights when Patient property is mishandled due to policy $ 302.250(8). Patient property is destroyed or retained at the whim of
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CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 40 of 47
whatever property staff the Patient happens to deal with. Many times, personal
property is destroyed after only ten days.
Il2. Defendants violate the Plaintiffs' civil rights when properfy is seized and is then
destroyed if not removed from the facility within 10 days of being seized. Or when Defendants' seize property arbitrarily to question ownership; it is placed in lost and found where clients have no access. Patients must then show proof of ownership of
the property to regain the property that was arbitrarily taken from the Patients' cell.
113. When a Patient is moved to the HSA, he is strip searched and then forced to wear
a jump-suit prison uniform, and then be locked in a cell for a perio d of 2-24 hours. If
a Patient declines the search, he will have his clothing cut off; a security guard then will force his hands onto patient's testicles and buttocks.
lI4. Defendants violate the Plaintiffs' civil rights when they compel same to submit to
strip searches arbitrarily without first establishing that a reasonable suspicion of
contraband exists. Patients of the MSOP have experienced their clothing forcibly cut from their bodies after being patted down and having a metal-detecting wand passed over their bodies.
115. Defendants violate the Plaintiffs'civil rights when they compel Plaintiffs'to submit to arbitrary strip searches when they leave and reenter the facility for any
purpose. Said searches occur arbitrarily without the Defendants first establishing a
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reasonable suspicion; or otherwise without the Defendant conducting
individualized risk assessmenl to warrant the invasive search.
CELL SEARCHES
116. Plaintiffs' cells are arbitrarily searched for contraband. The procedure lacks the necessary standards of professional judgment for a treatment facility to justiff the
personal invasion of privacy. Plaintiffs allege the property being taken is not a risk to institution security; it is to deprive Patients of their personal property.
PAT SEARCHES
II7. Examples before a patient may leave his work in the kitchen or industry area, he is
subjected to a pat search by male or female staff arbitraily regardless of personal reasonable suspicion. Plaintiffs are also subjected to an arbitrary pat search before and after any visit even though the Patients are under constant video and personal surveillance by the MSOP guards. Plaintiffs are subject to either wand or a pat-
search upon leaving the Craft-Room arbitrarily regardless of actual personal
reasonable suspicion. A pat search and material search of a patient may be conducted
at anytime during routine activities including, but not limited to: room return
directive, movement during programmed activities, upon activation of metal detector, after contact visits, on visual observation by staff of suspicious activity.
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VIII SUMMARY OF CLAIMS
118. Defendants have subjected Plaintiffs' to arbrtrary and severe restraints and
restrictions to their living conditions and denial of basic needs of life that constitutes a severe restriction of liberty; have also therefore, deprived Plaintiffs' of life, liberty
and property without due process of law. Defendants are required to provide
Procedural and Substantive Due Process. But have failed to provide due process.
119. Defendants have deprived Plaintiff s of their right to constitutionally adequate
treatment, thereby violating their constitutional right to due process.
120. Defendants have deprived Plaintiffs their due process by denying Plaintiffs'
treatment that can secure a release into the community in a reasonable time period.
I2l. Defendants have subjected Plaintiffs' to exuberant prices relating to telephone
service, food & hygiene by contracting with MINNCOR and Global Tel Link. The
MSOP receives a commission from both.
I22. Defendants have subjected Plaintiffs' to deprivations relating to the lack of due
process in disciplinary proceedings termed: Behavioral Expectations. Defendants are required to provide procedural and substantive due process, but have failed to provide
due process.
I23. Minnesota State Statutes, rules, and policies have set forth specific and mandatory
rights of Patients sufficient to create a constitutionally protected interest.
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124. As a result of defendants' violations of Plaintiffso due process rights, the class has suffered the damages described in paragraphs I l9 through 139 of this Complaint, and
declaratory and injunctive relief necessary to end said violations.
IX CAUSE OFACTION
125. Plaintiffs through the vehicle of title 42 U.S.C. $ 1983, any other jurisdiction as mentioned in paragraph 3 through 5 above and through any other laws and/or rules
this Court deems fair and appropriate , charges that the Defendants captioned above in
section V. aboveo did commit acts under color of state law, depriving Plaintiff s of their unalienable rights, privileges and immunities secured by the Constitution and laws of the United States of America. in violation of the First & Fourth Amendments
through Fourteenth Amendment protection, in both their official and personal
capacities by committing the following:
COUNT I _ VIOLATION OF THE FOURTEENTH AMENDMENT PURSUAI\T TO THE UNITED STATES CONSTITUTION.
126. Plaintiffs hereby reallege and incorporate by reference, all the facts and
I allegations contained in paragraphs through 124 of this complaint. Defendants,
through the above described actions, did engage in violations pursuant to the
Fourteenth Amendment of the United States Constitution; Section 1. All persons born
or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the
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United States; nor shall any State deprived any person of life, liberty, or properfy, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
COUNT II _ VIOLATION OF THE FIRST AMENDMENT PURSUANT TO THE
UNITED STATES CONSTITUTION.
127. Plaintiff s hereby reallege and incorporate by reference, all the facts and
allegations contained in paragraphs I through 124 of this complaint. Defendants,
through the above described actions, did engage in violations pursuant to the First
Amendment of the United States Constitution; Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble and to petition the Government for a redress of grievances.
COUNT III - VIOLATION OF THE FOURTH AMENDMENT PURSUANT TO
THE UNITED STATES CONSTITUTION.
128. Plaintiffs hereby reallege and incorporate by reference, all the facts and
allegations contained in paragraphs I through I24 of this complaint. Defendants,
through the above described actions, did engage in violations pursuant to the Fourth Amendment of the United States Constitution; The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants will issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
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X RELIEF DEMANDED
129. WHEREFORE Plaintiff s PRAY for Judgment in our favor as follows:
130. A jury trial on all issues triable by jury.
131. Granting declaratory judgment in favor of Plaintiffs by declaring Defendant's
violations of Plaintiffs rights.
132. Granting injunctive relief prohibiting Defendants from continuing to violate
Plaintiffs' rights, requiring Defendants to provide Plaintiffs with the standards required to meet all medical and mental health treatment, prohibiting Defendants
from reading or interfering with Plaintiffs correspondence. Prohibiting Defendants
from holding back patient's progression through treatment; and/or hold back
vocational Work for Pay Assignments because they do not perform cleaning tasks in the common living areas. Prohibiting Defendants from locking the Patients in
cells for any reason other than for safety of the patient, the facility and/or the
public. Prohibiting the use of the black box, handcuffs, leg cuffs, steel chain belts. Prohibiting the use of pat searches or strip searches.
133. Awarding judgment in favor of Plaintiffs against the Defendants and each of them
jointly and severally in an amount in excess of $750,000.00 as and for
compensatory damages.
-45-

CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 46 of 47 134. Awarding judgment in favor of Plaintiffs against the Defendants and each of them
jointly and severally in an amount in excess of $750,000.00 as and for punitive
damages.
135. Hold Defendants jointly and severally liable for Plaintiff s judgment. 136. Awarding Plaintiff s all costs and disbursements herein, and prejudgment interest. 137. Awarding Plaintiff s reasonable attorney fees pursuant to 42 U.S.C. $ 1988. 138. Ordering that any monies awarded to plaintiffso be exempt from collection by the
State of Minnesota in connection with billing for cost of care.
I39. Such other and further relief as the Court may deem just and proper.
Executed at Moose Lake, Minnesota on December 15, 2011.
-46-

CASE 0:11-cv-03659-DWF-JJK Document 1 Filed 12/21/11 Page 47 of 47
VERIFICATION I have read the foregoing complaint and hereby veriff that the matters alleged
therein are true, except as to matters alleged on information and belief, and, as to those, I
believe them to be true. I certiff under penalty of perjury that the foregoing is true and
correct.
Kevin Scott Karsjens

f," n(& &, r "
James Allen Barber

Brian Keith Hausfeld

Christopher John Thuringer

[}rsa4Rw. ll/04)

CASE 0:11-cv-03659-DWFC-JTJVKL DCoOcuVmEeRntS1F-1IEEFTiled 12/21/11 Page 1 of 1

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I. (a) PLAINTIFFS Kevin Scott Karsjens, David Leroy Gamble, Jr., Kevin John

Df,FENDAI\TTS

Minnesota Sex

DeVillion, Peter Gerard Lonergan, James Matthew Noyer, Sr., James John Rud, Dennis

Program, Lucinda

Berg, Kevin

Richard Steiner, James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Brian Keith

Hausfield, Christopher John Thuringer, Kenneth S. Daywitl Bradley Wayne Foster
(b) county of Residence of Fint listed Plaintiff: @!%t*"nu.pLArNnFFcAsBs)

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Title 42 U.S.C. g 1983

(For Diversity Cases Only)

n E I U.S. Govemment Plaintif

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NATURE OF SUIT (Place an "X" in One Box Only)

CONTRACT
n I l0 Insurance 120 Marine
ntr 130 Miller Act 140 Negotiable Instrument
nn I 50 Recovery of Overpayment & Enforcement of Judgrnent
tr l5l Medicare Act
n 152 Recovery of Defaulted u Student Loans
I 53 R.ecovery of Overpayment of Veteran's Benefits
I 60 $tockholders' Suits 190 Other Conhact 195 Contract Product Liability 196 Franchise
REAL PROPERTY
220 Foreclosure 230 Rent Lease & Enjectment 240 Torts to Land
n 245 Tort Product Liability n 290 All Other Real Property

RSONALINJURY PERSONALINJURY

310 315

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362 Persona" InjuryMedical

Liability

320

Assault, Libel, Slander

n 365 Personal Injury-
Product Liability
f] 368 Asbeslos Personal

330 Federal Employer's Injury Product Liability

Liability

PERSONAL PROPERTY

340 Marine
345 Marine Product
Liability 350 Motor Vehicle

Ll [ n

370 Other Fraud
371 truth in lrnding
feO OtherPersonal
Property Damage

355 Motor Vehicle Product Liability

n

385 Property Damage Product Liability

360 Other Personal pRISONER pETITION

CIVIL RIGHTS

Sentence

441 Voting

Habeas Corpus

zl42 Employment 443 Housing/

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530 General 535 Death Penalty

Accommodations
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I 2145 Amer. dDisabilities Prison Condition

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446 Amer. ilDisabilities

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610 Agriculture 620 Other Food & Drug 625 Drug Related Sei ofProperty2l USC88l 630 Liquor Laws 640 R.R & Truck 650 Airline Regulations 660 Occupalional
Safety/Health 690 Other
710 Fair Labor Standards 730 Labor/L1grnt.
ing& Disclosure Act 740 Railway Labor Act 790 O&alaborhigdist 791 FnploymentRet Inc
. Security Act

422 Appeal28LFcl58 423 Withdrawal
28 USC 157
861 HrA (139D 862 Black Lung (923) 863 DWc/Dww(405(g) 864 SSID Title XVI 865 Rsl (405(g) FEDERAL TAX SUITS 870 Taxes (US Plaintiff
or Defendant 871 IRS-Third Party
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400 StdeRe@ofuffireril
410 Antifust 430 Banks & Banking
450 Commerce 460 Deportation 470 Rad<*erhfluenoed &ConptOgarialcns 480 Consumer Credit 490 CablelSat TV 810 Seleotive Service 850 Securities/ Commodities/Exchange 875 OsomerCtnlloge
12 USC 3410 890 Other Stat. Action 891 Agriculture Aots 892 Economic
Stabilization Act 893 EntfuunncfiN4es 894 Energy Alloc. Act 895 Freedom of
Information Act 900 Appeal ofFee Determination Under Equal Acoesto Justice 950 Constitutionality
of State Statutes

v.

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n 4 Reinstated or Reopened

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VI. CAUSE OFACTION Cits the U.S. Civil Statute under which you are filing @o not cite jurisdictional statutes unless diversity).

VII.

IN

COMPLAINT:

VIII. RELATED CASE(S) IF ANY

Briefdescription ofcause: Patients ofthe Minnesota Sex Offender Progam are suing Defendants over oonditions ofcaptivity and inadequate

treatrnent culminating in many violations of due

First & Fourth Amendment

EI cnecr IF THrs rs A clAss ACTToN
L]NDER F,R.C.P. 23

DEMAND $750,000.00 compensatory & $750,000.00 punitive per class member

CHECK YES only if demanded in complaint:
JURYDEMAND: EI Yes l-lNo

(See instructions): ruDGE

DOCKETNUMBER

FOR OFFICE USE ONLY RECEIPT#

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SICNATURE OF ATTORNEY OF RECORD

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MAG. JUDGE
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CASE 0:11-cv-03659-DWF-JJK Document 1-2 Filed 12/21/11 Page 1 of 1

Kevin S. Karsjens
l11l Highway 73 Moose Lake, MN 55767
December 15,20ll
United States District Court. Fourth Division 100 Federal Building 316 North Robert Street
St. Paul, MN 55101

ffiffitr'fr'$dffiW

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Re: Commencement of Civil Action

To the Clerk of Court:

Please find enclosed for filing one (l) original of the following documents: Civil
Complaint pursuant to Title 42 U.S.C. $ 1983 dAffidavit-Exhibits.

Please take notice that a Civil Cover Sheet; 14 Affidavits to proceed in forma pauperis;

Motion to Appoint Counsel; Motion for TRO/Preliminary Injunction; Proposed Order;

Memorandum of Law dAffidavits-Exhibits
box on this date marked o'Envelope I of 2 &

was sent in Envelope2

a
of

separate 2.

envelope

but

the

same

Thank you for your courtesies.

Truly yours,

'2h/W
Kevin S. Karsjens

cc: file

encl.

,;GANNEm
nEc 2 x 201X
\Jb /7_ u.$. DNqRt9A GOURT sT PAUL

 
 CASE 0:11-cv-03659-DWF-JJK Document 250 Filed 10/05/12 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, and Bradley Wayne Foster,
Plaintiffs,
v.
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Greg Carlson, and Ann Zimmerman, in their individual and official capacities,
Defendants.

Civ. No. 11-3659 (DWF/JJK)
ORDER REGARDING SEX OFFENDER
CIVIL COMMITMENT ADVISORY TASK FORCE

On August 15, 2012, the Court entered an Order requiring the Minnesota Commissioner of Human Services (“the Commissioner”) to create an advisory task force referred to as the “Sex Offender Civil Commitment Advisory Task Force.” The Commissioner issued an order on August 21, 2012 creating the Sex Offender Civil Commitment Advisory Task Force (“Task Force”). The Task Force shall consist of up to 15 members and will expire two years from the date of appointment of the first member. The Task Force shall examine and provide recommended legislative proposals to the Commissioner on the following topics:
A. The civil commitment and referral process for sex offenders;

CASE 0:11-cv-03659-DWF-JJK Document 250 Filed 10/05/12 Page 2 of 4
B. Sex offender civil commitment options that are less restrictive than placement in a secure treatment facility; and
C. The standards and processes for the reduction in custody for civilly committed sex offenders.
The Minnesota Secretary of State published Notice of Vacancy for this Task Force on September 4, 2012. The deadline to submit an application to serve on the Task Force was set for September 25, 2012. The work of the task force is set to begin in early October, 2012.
The Commissioner received applications from interested persons. Those applications were provided to counsel for the parties in this matter. Counsel for the parties, the Commissioner and the Court met on September 25, 2012 by telephone to discuss the potential candidates.
On October 5, 2012, the Commissioner filed with the Minnesota Secretary of State and submitted to this Court her list of appointments to the Task Force.
Upon review of the applicants for the Sex Offender Civil Commitment Advisory Task Force, the Court hereby affirms the Commissioner’s appointment for the following individual to serve as the Chairperson of the Task Force effective October 10, 2012:
The Honorable Eric J. Magnuson, Chief Justice, Minnesota Supreme Court, retired. The Court hereby affirms the Commissioner’s appointment for the following individual to serve as the Vice Chair of the Task Force effective October 10, 2012:
The Honorable James M. Rosenbaum, United States District Court, retired.
2

CASE 0:11-cv-03659-DWF-JJK Document 250 Filed 10/05/12 Page 3 of 4
In addition, the Court hereby affirms the Commissioner’s appointments for the following individuals to serve on the Task Force effective October 10, 2012:
1. Representative Jim Abeler, Chair, Health and Human Services Finance Committee, Minnesota House of Representatives;
2. Representative Tina Liebling, Minority Lead, Health and Human Services Reform Committee, Minnesota House of Representatives;
3. Senator Tony Lourey, Ranking Minority Member, Health and Human Services Committee, Minnesota Senate;
4. Senator Warren Limmer, Chair, Judiciary and Public Safety Committee, Minnesota Senate;
5. Eric Janus, President and Dean, William Mitchell College of Law; 6. The Honorable Kathleen Gearin, Judge, Ramsey County District Court; 7. The Honorable Paul Nelson, Judge, Chippewa County District Court; 8. Mark Ostrem, Olmstead County Attorney; 9. Roberta Opheim, Ombudsman for Mental Health and Developmental
Disabilities; 10. Donna Dunn, Executive Director, Minnesota Coalition Against Sexual
Assault; 11. Gerald T. Kaplan, Executive Director, Alpha Human Services; 12. Nancy Schouweiler, Chair, Dakota County Board of Commissioners; 13. Ryan B. Magnus, Partner, Jones and Magnus. Finally, the Court hereby affirms the following individuals as members Ex-Officio to the Task Force as designated by the Commissioner: 1. Kelly Lyn Mitchell, Executive Director, Sentencing Guidelines
Commission; 3

CASE 0:11-cv-03659-DWF-JJK Document 250 Filed 10/05/12 Page 4 of 4

2. Tom Roy, Minnesota Commissioner of Corrections;

3. Dr. Michael Thompson, President, Minnesota Chapter of the Association for Treatment of Sexual Abusers;

4. James Franklin, Executive Director, Minnesota Sheriff’s Association.

Pursuant to Fed. R. Evid. 408, no proceedings of the Task Force, including,

without limitation, testimony or evidence given or submitted to the Task Force, or

materials or communications created, compiled, or drafted in connection with the

activities of the Task Force by members of the Task Force or individuals assisting the

Task Force are admissible in any ongoing or future litigation.

The Court will consider recommendations for the appointment of additional

members to the Task Force.

SO ORDERED.

Dated: October 5, 2012

s/ Arthur J. Boylan ARTHUR J. BOYLAN United States Chief Magistrate Judge

4

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, and Bradley Wayne Foster,
Plaintiffs,
v.
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Greg Carlson, and Ann Zimmerman, in their individual and official capacities,
Defendants.

Civil No. 11-3659 (DWF/JJK) ORDER

This matter is before the Court on Hollis J. Larson’s Motion to Intervene or to Consolidate (Doc. No. 207), Hollis J. Larson’s Motion for a Temporary Restraining Order and Preliminary Injunction (Doc. No. 218), Unnamed Plaintiffs’ Motion to Create Sub-Class (Doc. No. 220), and Unnamed Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction (Doc. No. 222). All four motions were submitted by individuals, or groups of individuals, committed to the Minnesota Sex Offender Program (“MSOP”) without the assistance or approval of class counsel.1

1

The Court notes and reaffirms its Order of September 18, 2012 in which it directed

individual class members to file any future letters, motions, or submissions through class

(Footnote Continued on Next Page)

I. Motion to Intervene or Consolidate Defendants and class counsel oppose Mr. Larson’s motion to intervene or to
consolidate. (Doc. Nos. 214, 216.) Mr. Larson claims that he is entitled to intervene in this action as a matter of right
pursuant to Rule 24(a) of the Federal Rules of Civil Procedure. (Doc. No. 207.) Mr. Larson has failed to point to a federal statute, however, that would entitle him to intervene unconditionally; he thus cannot establish that intervention is proper pursuant to Rule 24(a)(1). Fed. R. Civ. P. 24(a)(1); see United States v. Union Elec. Co., 64 F.3d 1152, 1160, n.3 (8th Cir. 1995). Mr. Larson has also failed to establish that he is entitled to intervene pursuant to Rule 24(a)(2). He has presented the Court with no facts that would demonstrate that his ability to protect his interests is impeded by the existence of the class action or that the parties to it will not adequately represent his interests. See Fed. R. Civ. P. 24(a)(2). Furthermore, to the extent Mr. Larson generally objects to the disposition of this case as a class action and the tactical choices of class counsel, Mr.
(Footnote Continued From Previous Page) counsel. (Doc. No. 237 at 2.) Because the above-described motions predate the Court’s September 18, 2012 Order, the Court will address the motions on the merits herein. The Court’s September 18, 2012 Order shall, however, remain in full force and effect. The Court reminds the class that individual class members shall not file pro se motions without permission of the Court, and “[i]f individual class members or groups of class members send letters, motions, or other submissions to Chambers or to the Clerk’s Office for filing in violation of [the September 18, 2012 Order], the Clerk of Court is directed to return such letter, motion, or submission to the sender along with a copy of [the September 18, 2012 Order].” (Id. at 2-3.)
2

Larson’s objections to class certification have already been heard and ruled upon by this Court.2 (See Doc. No. 189; Doc. No. 205 at 1-2; Doc. No. 203 at 10.)
Alternatively, Mr. Larson seeks to consolidate his suit with this class action. (Doc. No. 207.) Courts have the discretion to consolidate cases involving common questions of law or fact pursuant to Rule 42 in order to avoid unnecessary cost or delay. See Fed. R. Civ. P. 42. Here, the class action itself, along with the stays imposed in other cases filed by individual MSOP clients, serve such a purpose: the class action provides a vehicle for efficiently litigating the claims common to the entire class. Mr. Larson contends that he will “be prejudiced by any judgment that does not include relief for his specific claims and that does not include monetary damages,” however, any such prejudice is merely speculative at this juncture. (See Doc. No. 207 at 5.) As noted below, the Court has reserved the right to create sub-classes should any actual conflict arise in the future. The motion to intervene or consolidate is thus properly denied. II. Motion to Create Sub-Class
Defendants and class counsel also oppose the Motion to Create Sub-Class filed by a group of unnamed plaintiffs (“Movants”). (Doc. Nos. 249, 259.) The motion raises many of the same objections overruled by the Court at the time it certified the class. Class counsel notes that the Court considered the objections of MSOP clients not participating in treatment at the time it certified the class and contends that no new facts

2

For this reason, permissive intervention is also improper at this time.

3

exist at this time “to necessitate the creation of subclasses.” (Doc. No. 249 at 3.) Defendants join in this argument. (See Doc. No. 259.)
In its previous orders, the Court acknowledged, and overruled, the objections of certain unnamed class members to class certification.
The Court recognized concerns that potential conflicts may arise between the named Plaintiffs and certain class members who have refused treatment or who may seek different remedies or relief. Consequently, the Court retained jurisdiction over the Class and reserved the right to reconsider the need for subclasses should any actual conflicts arise in the future. (Doc. No. 205 at 2 (internal citations omitted); see also Doc. No. 203 at 10.) Although all MSOP patients may not be identically situated, the class claims, at their core, stem from allegations of the same principal constitutional violations as those raised by Movants. The class members generally assert the same injuries: “the lack of treatment, inadequate conditions of confinement, and lack of meaningful opportunity for release.” (Doc. No. 203 at 6.) The Court finds that, at this pre-discovery stage of litigation, Movants have not presented any newly discovered facts that would warrant reconsideration of the Court’s previous order certifying the class or require the creation of a sub-class.3 Still, the Court once again reserves the right “to reconsider the need for subclasses should any actual conflicts arise in the future.” (Doc. No. 205 at 2.) Consequently, the Court denies the motion to create a sub-class as premature.

3

Additionally, Movants have failed to specifically identify the sub-class they seek

to create.

4

III. Motions for TRO A. Larson’s Motion Mr. Larson has filed a motion for a temporary restraining order (“TRO”) and
injunction with respect to MSOP’s planned, expanded implementation of the Area Monitoring System (“AMS”). (Doc. No. 218.) AMS requires the use of a transmitter worn on the ankle or wrist in order to monitor an MSOP client’s location within the facility. (Doc. No. 255, Figueroa Aff. ¶ 2, Ex. A.) Defendants oppose Mr. Larson’s motion and represent that, if a MSOP client refuses to wear an AMS transmitter, he will not be forced to wear one, however, his freedom of movement throughout the facility will be restricted. (See Doc. No. 257, Zimmerman Aff. ¶ 9.)
The Court concludes that Mr. Larson has failed to satisfy the Dataphase factors required to warrant injunctive relief at this time. See Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). He has not alleged an actual injury and has failed to articulate a legal or factual basis that would entitle him to an injunction or TRO. The motion appears to be premature with respect to any claims of threat of injury resulting from the devices, and any harm to Mr. Larson is speculative, as he has not yet worn such a device. (See Zimmerman Aff. ¶ 10.) The Court concludes that the perceived threat of any such injury is insufficient to warrant a TRO. As such, the motion is denied. The Court, however, reserves the right to evaluate the constitutionality of, or other challenges to, the AMS policy (or other restrictions on the freedom of movement of MSOP clients) if called upon at a future time during the course of this litigation.
5

B. Unnamed Plaintiffs’ Motion Certain unnamed Plaintiffs (“Movants”) have also filed a motion for a TRO. (Doc. No. 222.) Defendants oppose the motion. To the extent the motion seeks relief with respect to AMS, the Court denies the motion for the reasons articulated above, as Movants have yet to wear AMS devices. (See Zimmerman Aff. ¶ 10.) To the extent the motion deals with allegations of class counsel’s failure to adequately represent the “subclass,” such arguments were addressed above, with respect to the motion to create a sub-class. To the extent Movants raise challenges outside the scope of the Amended Complaint in this case and identify claims asserted in any other action, the motion is properly denied. The Court, however, reserves the right to evaluate the constitutionality of, or other challenges to, MSOP policies, rules, and regulations (including its policies regarding treatment) if called upon at a future time during the course of this litigation.
ORDER Based upon the foregoing, IT IS HEREBY ORDERED that: 1. Hollis J. Larson’s Motion to Intervene or to Consolidate (Doc. No. [207]) is DENIED. 2. Hollis J. Larson’s Motion for a Temporary Restraining Order and Preliminary Injunction (Doc. No. [218]) is DENIED. 3. Unnamed Plaintiffs’ Motion to Create Sub-Class (Doc. No. [220]) is DENIED.
6

4. Unnamed Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction (Doc. No. [222]) is DENIED.

Dated: December 4, 2012

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

7

 
 CASE 0:11-cv-03659-DWF-JJK Document 281 Filed 12/13/12 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, Brian Christopher John Thuringer, Kenny S. Daywitt, and Bradley Wayne Foster,
Plaintiffs,
v.
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Greg Carlson, and Ann Zimmerman, in their individual and official capacities,
Defendants.

Civ. No. 11-3659 (DWF/JJK)
ORDER REGARDING THE MSOP PROGRAM EVALUATION TEAM

On November 9, 2012, the Court entered an Order requiring the Minnesota Commissioner of Human Services (the “Commissioner”) to create an evaluation team referred to as the “MSOP Program Evaluation Team.” The MSOP Program Evaluation Team (“Evaluation Team”) shall consist of five qualified sex offender clinical treatment professionals with the necessary knowledge and experience to evaluate the sex offender treatment phase progression in a secure facility to be appointed by the Commissioner and subject to Court approval. Three of the five

CASE 0:11-cv-03659-DWF-JJK Document 281 Filed 12/13/12 Page 2 of 3
Evaluation Team positions shall be filled by the sex offender treatment experts contracted to perform the annual evaluation (Annual Evaluators) described in Minnesota Statutes, section 246B.03, subdivision 2 (2012). The Evaluation Team shall examine client treatment phase progression at the MSOP and provide the MSOP Executive Director, the Court, and Counsel for the parties in this litigation with its Findings and Recommendations in accordance with this Court’s November 9, 2012 Order.
Counsel for the parties conferred by email to discuss potential candidates for the final two Evaluation Team positions prior to final appointment by the Commissioner.
After reviewing the candidates, the Commissioner appoints, and the Court hereby approves, the following individuals to serve on the Evaluation Team:
1. James L. Haaven, M.A. (Annual Evaluator) 2. William D. Murphy, Ph.D. (Annual Evaluator) 3. Robert J. McGrath, M.A. (Annual Evaluator) 4. Jill D. Stinson, Ph.D. 5. Christopher D. Kunkle, Psy.D. The Evaluation Team shall have complete access to all relevant documents and to MSOP clients and staff only as necessary to perform their review and evaluation of client treatment phase progression at the MSOP. Information received or used by the Evaluation Team that is classified as private, not public, or protected health records or health information under law shall not
2

CASE 0:11-cv-03659-DWF-JJK Document 281 Filed 12/13/12 Page 3 of 3

be directly or indirectly transferred, disclosed, or communicated in any way to any person other than persons retained by the Evaluation Team to assist in the evaluation, the court and its staff, counsel for the parties, or to persons who are the subject of the data if otherwise entitled to access under law, unless ordered by the Court. Upon release of the Evaluation Team’s final Findings and Recommendations, data shall be public except for data on an individual classified under law as private, not public, or protected health records or health information. The Evaluation Team’s draft and final Findings and Recommendations shall not contain any description, information, or data that would identify any particular individual.
Except as set forth in the Evaluation Team’s final Findings and Recommendations, Evaluation Team members shall not provide any opinion or testimony based upon information acquired in the scope and performance of their duties on the Evaluation Team. SO ORDERED

Date: December 13, 2012

_s/ Jeffrey J. Keyes_______________ JEFFREY J. KEYES United States Magistrate Judge

3

 
 CASE 0:11-cv-03659-DWF-JJK Document 290 Filed 02/26/13 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, Brian Christopher John Thuringer, Kenny S. Daywitt, and Bradley Wayne Foster,
Plaintiffs,
v.
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Greg Carlson, and Ann Zimmerman, in their individual and official capacities,
Defendants.

Civ. No. 11-3659 (DWF/JJK) ORDER

The above-captioned matter was originally filed as Karjsens, et al. v. Minnesota Department of Human Services, et al., pro se, (“Karsjens”) on December 21, 2011, as a proposed class action. On January 12, 2012, attorneys for the law firm Gustafson Gluek, PLLC filed notices of appearance on this matter. On or about January 25, 2012, Chief Judge Davis issued an Order (Doc. No. 142), staying all pending pro se Minnesota Sex Offender Program (“MSOP”) cases with the exception of this matter and Thompson v. Ludeman,

CASE 0:11-cv-03659-DWF-JJK Document 290 Filed 02/26/13 Page 2 of 3
et al., 11-CV-1704 (DWF/JJK), and on February 6, 2012, Chief Judge Davis issued an amended order (Doc. No. 83), staying additional MSOP cases. On February 8, 2012, Judge Frank issued an Order (Thompson, Doc. No. 146), staying the Thompson litigation. On March 15, 2012, an Amended Complaint (Doc. No. 151), was filed in Karsjens. On July 24, 2012, Judge Frank issued an Order (Doc. No. 203), certifying Karsjens as a class action. The parties have been and continue to discuss settlement of the issues raised in the Karsjens Amended Complaint.
The Court recognizes that the solution of issues relating to the conditions of confinement will require a process in which representatives from both parties can meet and confer to try and reach agreement as to these issues.
Accordingly, IT IS HEREBY ORDERED that: 1. The Court has selected and appoints the following individuals to serve on a committee (“Committee”):
Dan Gustafson or David Goodwin Steve Alpert or Ricardo Figueroa
Nancy Johnston Anne Barry
Jannine Hébert and/or Kevin Moser Kevin Karsjens
Benjamin Alverson Corey Michaels
2. The focus of the Committee shall be to meet and work through, in good faith, the remaining issues, limited to the list of conditions of confinement at the MSOP identified by Plaintiffs and presented to Defendants by Friday,
2

CASE 0:11-cv-03659-DWF-JJK Document 290 Filed 02/26/13 Page 3 of 3

March 1, 2013, in an effort to reach a proposed agreement regarding the conditions of confinement that can be incorporated into any future settlement of this litigation.
3. The Committee shall meet at the MSOP facility in Moose Lake as needed between the date of this Order and June 3, 2013, to discuss the issues relating to the conditions of confinement. The first such meeting shall occur in March 2013. Subsequent meetings shall occur in the months of April and May 2013.
4. No later than June 3, 2013, the Committee shall prepare and provide the Court a final proposal with regard to areas of agreement on the conditions of confinement.
5. The formation of the Committee shall not affect or impair the rights of the parties with respect to further settlement discussions or litigation in this matter.

Date: February 26, 2013

__s/ Jeffrey J. Keyes_______________ JEFFREY J. KEYES United States Magistrate Judge

3

 
 CASE 0:11-cv-03659-DWF-JJK Document 635 Filed 10/28/14 Page 1 of 86

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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,

Court File No. 11-cv-03659 (DWF/JJK) THIRD AMENDED COMPLAINT

Plaintiffs,

v.

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

INTRODUCTION 1. This class action is brought on behalf of individuals civilly committed to the Minnesota Sex Offender Program against Defendants, in their official capacity, for violations of Plaintiffs’ constitutional, statutory and common law rights. Specifically Plaintiffs allege that Minn. Stat. §253D is unconstitutional on its face and as applied to the Plaintiffs and Class members because the nature and duration of commitment under this statute is not is reasonably related or narrowly tailored to the purpose of commitment. Plaintiffs also allege violations of Plaintiffs’ and Class Members’ constitutional, statutory and common law rights to (1) receive proper care and treatment,

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best adapted, according to contemporary professional standards, to rendering further supervision unnecessary, (2) be free from punishment in violation of those rights, (3) have less restrictive confinement, (4) be free from inhumane treatment in violation of those rights, (5) have religious freedom, (6) have free speech and association, (7) be free from unreasonable searches and seizures, and (8) be free from an invasion of privacy.
PROCEDURAL BACKGROUND 2. Plaintiffs are all currently civilly committed to the Minnesota Sex Offender Program (“MSOP”) at Moose Lake, Minnesota pursuant to Minn. Stat. § 253D. Several of the patients in the MSOP filed federal complaints against various state employees associated with the MSOP. The complaints alleged violations of the patients’ civil rights pursuant to 28 U.S.C. § 1983 and other statutes. 3. On January 12, 2012, Judge Frank referred these cases to the Minnesota Chapter of the Federal Bar Association’s Pro Se Project. On January 20, 2012, the undersigned attorneys filed Notices of Appearance in Thompson v. Ludeman, et al., 11CV-01704 (DWF/JJK) (“Thompson”) and Karsjens et al., v. Minnesota Department of Human Services, et al., 11-CV-0359 (DWF/JSM) (“Karsjens”). 4. On January 25, 2012, Chief Judge Davis issued an Order [Karsjens Dkt. #142] staying all of the pro se MSOP cases with the exception of the Thompson and Karsjens actions pending the resolution of the outstanding Motion for Class Certification filed in the Karsjens case [Karsjens Dkt. # 24]. On February 6, 2012, Chief Judge Davis issued an Amended Order [Karsjens Dkt. # 145] applying the stay to additional MSOP cases that were unintentionally omitted from his previous order.
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5. On February 8, 2012, Judge Frank issued an Order [Karsjens Dkt. #146] staying the Thompson litigation until further notice, and setting a deadline for filing an Amended Complaint in the Karsjens action by February 29, 2012. On February 29, 2012, Judge Frank issued an Order [Karsjens Dkt. # 149], pursuant to the stipulation of the parties, amending the deadline for filing an Amended Complaint in this action to March 15, 2012. On June 28, 2012, Plaintiffs moved to have an injunctive Class certified pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure [Karsjens Dkt. # 171]. On July 24, 2012, Judge Frank issued an Order certifying the Class defined as “All patients currently civilly committed in the Minnesota Sex Offender Program pursuant to Minn. Stat., §253B.” [Karsjens Dkt. # 203].
6. On September 21, 2012, Defendants filed a Motion to Dismiss Plaintiff’s First Amended Complaint [Karsjens Dkt. # 243] and a hearing date was set for November 29, 2012. That motion, along with Plaintiffs’ Motion for Payment of Fees and Costs, were withdrawn. [KarsjensDkt. # 276].
7. The Court ordered the establishment of the Sex Offender Civil Commitment Task Force (“Task Force”). [Karsjens Dkt # 208].
8. In addition to the Task Force, this Court ordered the creation of the MSOP Program Evaluation Team (“PET Team”). [Karsjens Dkt. # 275].
9. The Court also ordered the establishment of a Committee of MSOP patients, staff, and respective counsel to meet and confer on issues relating to the conditions of confinement at the MSOP. [Karsjens Dkt. # 290].
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10. On June 20, 2013, the Court issued an Order setting a deadline of August 8, 2013 for Plaintiffs to file a Second Amended Complaint. [Karsjens Dkt. # 298].
11. On November 19, 2014, the Defendants filed a motion to dismiss the Second Amended Complaint. [Karsjens Dkt. # 374]. Plaintiffs filed various motions for declaratory judgment and preliminary injunctions. [Karsjens Dkts. #360, 364, 368]. On February 20, 2014, the Court denied Defendants’ motion to dismiss except with respect to Count X and denied Plaintiffs’ motions without prejudice. [Karsjens Dkt. #427].
12. On December 6, 2013, the Court appointed four experts pursuant to Rule 706 of the Federal Rules of Evidence. [Karsjens Dkt.. 393 at 1-2]. Thereafter, the parties submitted their respective proposals with respect to the work of the experts. [Karsjens Dkt. 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. [Karsjens Dkt. 422]. The Court further specified the 706 Experts duties in its February 20, 2014 Order. [Karsjens Dkt. 427].
13. On May 18, 2014, the Rule 706 experts issued a report relating to a specific individual, Eric Terhaar, who is currently committed to MSOP and provided a summary of their findings and a recommendation for full discharge for Terhaar. [Karsjens Dkt. 471-1]. Shortly thereafter, on June 4, 2014, the 706 experts issued a report relating to another individual civilly committed at MSOP, Rhonda Bailey. Again, they provided a summary of their findings and a recommendation that Ms. Bailey be transferred or provisionally discharged from the MSOP to a supervised treatment setting that can meet her individual treatment needs. [Karsjens Dkt. 481-1].
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14. On June 2, 2014, the Court ordered Defendants to show cause why Terhaar’s continued confinement is not unconstitutional and why Terhaar should not be immediately and unconditionally discharged from MSOP, as unanimously recommended by the Rule 706 experts. [Karsjens Dkt. 468]. On June 4, 2014, Plaintiffs filed a Motion for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment. [Karsjens Dkt. 469]. Then, upon receipt of the experts’ report on Bailey, Plaintiffs filed a Motion to Immediately Transfer R.B. to an Appropriate Treatment Facility. [Karsjens Dkt. 478].
15. On August 11, 2014, the Court denied Plaintiffs’ Motion for Declaratory Judgment and to Immediately Discharge Mr. Terhaar from Civil Commitment, in part because to grant specific relief to Mr. Terhaar would not “generate common answers apt to drive the resolution of this litigation,” and in part because “it appears that an expedited petition for reduction of custody process is underway.” [Karsjens Dkt. 580 at p. 28 (citations omitted)]. The Court also denied Plaintiffs’ Motion to Immediately Transfer R.B. to an Appropriate Treatment Facility, stating that it would “allow the parties an opportunity to find a just resolution that would appropriately meet Bailey’s individual residential and treatment needs.” [Karsjens Dkt. 580 at p. 33].
NATURE OF THE ACTION 16. Plaintiffs bring this action on behalf of themselves and Class members alleging violations of their constitutional, statutory and common law rights. Plaintiffs allege that Minn. Stat. §253D is unconstitutional on its face and as applied because the nature and duration of the Plaintiffs’ and Class Members’ civil commitment under this
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statute is not reasonably related or narrowly tailored to the purpose for which they were
committed. Specifically, Plaintiffs allege that the Defendants, in their official capacity,
have, among other things:
a. failed to require or provide independent periodic review or any regular internal reviews that include forensic risk assessments;
b. failed to require the State to petition for a reduction in custody for committed individuals who meet the statutory requirements for such a reduction in custody;
c. failed to require the discharge of committed individuals who are no longer dangerous and/or no longer in need of inpatient treatment for a sexual disorder;
d. failed to provide for a judicial by-pass in the reduction in custody process;
e. failed to provide a reduction in custody process that is constitutionally adequate;
f. failed to provide policies and conditions of confinement that are reasonably related or narrowly tailored to the purpose of confinement;
g. failed to provide constitutionally adequate treatment or treatment best adapted according to contemporary professional standards to render further supervision unnecessary to Plaintiffs and Class members in violation of clearly established rights under the Fourteenth Amendment to the United States Constitution, the Minnesota Constitution, and the Minnesota Civil Commitment and Treatment Act;
h. denied Plaintiffs and Class members the right to be free from punishment in violation of clearly established rights under the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution;
i. denied Plaintiffs and Class members less restrictive alternative confinement in violation of clearly established rights under the
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Fourteenth Amendment to the United States Constitution and the Minnesota Constitution;
j. denied Plaintiffs and Class members the right to be free from inhumane treatment in violation of clearly established rights under the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution;
k. denied Plaintiffs and Class members the right to religion and religious freedom in violation of clearly established rights under the First and Fourteenth Amendments to the United States Constitution;
l. unreasonably restricted clearly established rights under the First Amendment rights of free speech and association of Plaintiffs and Class members in violation of the United States Constitution and the Minnesota Constitution;
m. implemented unreasonable searches and seizures upon Plaintiffs and Class members in violation of clearly established rights under the Fourth Amendment to the United States Constitution and the Minnesota Constitution;
n. invaded the privacy of Plaintiffs and Class members in violation of clearly established rights under the Fourth Amendment to the United States Constitution and the Minnesota Constitution; and
o. breached their contract with the Plaintiffs and Class member to provide treatment and tortiously interfered with the contracts to provide treatment to Plaintiffs and Class members.
17. Plaintiffs seek injunctive relief for these constitutional, statutory, and
common law violations on behalf of themselves and Class members.
JURISDICTION AND VENUE
18. This Court has subject matter jurisdiction over this action pursuant to 28
U.S.C. § 1331. This Court has supplemental jurisdiction for Plaintiffs’ state law claims
pursuant to 28 U.S.C. § 1367. Venue in this Court is proper pursuant to 28 U.S.C. § 1391
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because the acts and omissions giving rise to these claims occurred in the State of Minnesota and most of the Defendants reside in the State of Minnesota.
DECLARATORY AND INJUNCTIVE RELIEF 19. This Court has authority to grant declaratory relief pursuant to 28 U.S.C. § 2201 as an actual controversy exists regarding the rights, privileges, and immunities to which the Plaintiffs are entitled while committed to the care and custody of the State of Minnesota. Pursuant to 28 U.S.C. § 2202, this Court has authority to grant injunctive and other necessary and proper relief.
PARTIES I. Plaintiffs
20. Plaintiff Kevin Scott Karsjens is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
21. Plaintiff David LeRoy Gamble, Jr. is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
22. Plaintiff Kevin John DeVillion is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
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23. Plaintiff Peter Gerard Lonergan is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
24. Plaintiff James Matthew Noyer, Sr., is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
25. Plaintiff James John Rud is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
26. Plaintiff James Allen Barber is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
27. Plaintiff Craig Allen Bolte is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
28. Plaintiff Dennis Richard Steiner is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
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29. Plaintiff Kaine Joseph Braun is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
30. Plaintiff Christopher John Thuringer is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
31. Plaintiff Kenny S. Daywitt is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
32. Plaintiff Bradley Wayne Foster is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
33. Plaintiff Brian K. Hausfeld is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants. II. Defendants
34. Defendant Lucinda Jesson is the Commissioner of the Minnesota Department of Human Services (“DHS”). The DHS is responsible for operating the MSOP. Defendant Jesson, in her official capacity, implemented, retained and carried out
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policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and Class members.
35. Defendant Dennis Benson was the Executive Director of MSOP from 2008 to 2012 and a member of the clinical team. Defendant Benson, in his official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and the Class members.
36. Defendant Kevin Moser is the Director of MSOP. Defendant Moser, in his official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and the Class members.
37. Defendant Tom Lundquist is the Clinical Director of MSOP. Defendant Lundquist, in his official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and the Class members.
38. Defendant Ann Zimmerman is the Security Director of MSOP. Defendant Zimmerman, in her official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and the Class members.
39. Defendant Nancy Johnston is the current Executive Director of MSOP. Defendant Johnston, in her official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and Class members.
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40. Defendant Jannine Hébert is the Executive Clinical Director of MSOP. Defendant Hébert, in her official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and Class members
41. In all respects material to this action, all Defendants acted under the color of law and under the color of their authority as officers and employees of the DHS.
42. In all respects material to this action, all Defendants acted within the scope of their employment with the DHS, but exceeded the legitimate scope of their official capacity.
CLASS ACTION ALLEGATIONS 43. Plaintiffs bring this class action on behalf of themselves and the Class members pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure, seeking equitable and injunctive relief on behalf of the following class (“Injunctive Class”):
All patients currently civilly committed in the Minnesota Sex Offender Program pursuant to Minn. Stat., §253B.
44. The Class satisfies the requirements of Fed. R. Civ. P. 23(b)(2) because, as set forth herein, Defendants have acted and/or refused to act on grounds that apply generally to Plaintiffs and the Class members, thereby warranting appropriate injunctive and/or declaratory relief respecting the Class as a whole.
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45. On July 24, 2012, pursuant to Fed. R. Civ. P. 23(b)(2), the Court issued an Order in this action certifying the injunctive Class as defined above. [Karsjens Dkt. # 203].
FACTS I. History of the Minnesota Civil Commitment Statutes
46. Minnesota’s civil commitment statue was first enacted in 1939. That law contained a provision for committing Psychopathic Personalities (“PP”), including those who could not control their sexual impulses and were likely to engage in violent acts. Over the course of the next fifty years, the PP law was used primarily as an alternative to criminal punishment.
47. In 1994, a civilly committed offender successfully challenged his commitment because the “utter lack of control” language in the PP statute conflicted with commitments based upon evidence showing that the offender had planned out an attack. See In re Linehan, 518 N.W.2d 609 (Minn. 1994).
48. In response to that ruling, the Minnesota Legislature called a special session specifically to amend the commitment statute to remove the “utter lack of control” language. Minn. Stat. § 253B.02, subd. 18c(b). That amendment created the Sexually Dangerous Person (“SDP”) and the Sexually Psychopathic Personality (“SPP”) categories under the Minnesota Civil Commitment Act in 1994. Minn. Stat. § 253B.02, subd. 18b and subd. 18c.
49. Pursuant to Minn. Stat. § 253B.02, subd. 18b, a SPP is defined as, “any person of such conditions or emotional instability, or impulsiveness of behavior, or lack
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of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.”
50. Pursuant to Minn. Stat. § 253B.02, subd. 18c., a SDP is defined as “a person who: (1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 7a.” In order to find that a person is an SDP, the state does not have to prove they have an inability to control their impulses.
51. Harmful sexual contact is defined in Minn. Stat. § 253B.02, subd. 7a. as “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” It includes criminal sexual conduct in the first, second, third, and fourth degrees, other crimes where sexual impulses were part of the crime, or where the person’s conduct had criminal sexual conduct as a goal.
52. The Minnesota Civil Commitment Act of 1994 created a deeply flawed program that resulted in the bluntly critical report issued by the State of Minnesota Office of the Legislative Auditor (“Legislative Auditor Report”). See Office of the Legislative Auditor, State of Minnesota, Evaluation Report: Civil Commitment of Sex Offenders (March 2011), available at http://www.auditor.leg.state.mn.us/ped/pedrep/ccso.pdf. In that Legislative Auditor Report, the Legislative Auditor found that Minnesota’s civil
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commitment scheme for sex offenders suffers from major problems, including the fact that it is incredibly costly, lacks reasonable less restrictive alternative confinements, and does not provide adequate treatment to those who are committed to the MSOP. II. The Civil Commitment Process for Sex Offenders in Minnesota
53. In order to be civilly committed to the MSOP, the person must be found to be a SPP or SDP under Minn. Stat. § 253B.185. The Plaintiffs and Class members have all been civilly committed as an SPP, an SDP, or both under this statute. They have all gone through the same civil commitment process.
54. Pursuant to Minn. Stat. § 253B.185, subd. 1(b), civil commitment proceedings are initiated by the county attorney. The county attorney must determine whether good cause exists to file a petition within 120 days of receiving a court’s preliminary determination or a referral from the commissioner of corrections. Determinations on whether to file a petition for commitment vary greatly by geographic area. The average commitments per capita are substantially higher in the southeastern, southwestern, west central and northwestern regions than in the rest of the state. See Legislative Auditor Report at 39.
55. Generally the county attorney files the petition before the person is released from prison or juvenile detention. The petition may also be filed before the person goes to prison as part of a plea bargain. The petition may even be filed after the person has been placed on conditional or supervised release following a prison sentence, even if they have not committed any new sexual offenses. See Office of the Ombudsman for Mental Health and Mental Retardation, Sex Offender Civil Commitment Fact Sheet (Jan. 2004),
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available at http://www.ombudmhdd.state.mn.us/cctrc/sexoffenderccfactsheet.htm (“Sex Offender Fact Sheet”).
56. Minn. Stat. § 253B.08 requires that the petition be considered at a civil commitment hearing within 90 days of when the petition is filed. Pursuant to Minn. Stat. § 253B.07, the court appoints counsel for the person to be committed if necessary. At the hearing, both the proposed patient and the county attorney may call witnesses and examine and cross-examine those witnesses. All relevant evidence is considered including hearsay evidence. The court may consider evidence of past sexual misconduct, even if the person was not convicted of, or even charged with, a crime for that conduct. See Sex Offender Fact Sheet.
57. Unlike the Minnesota civil commitment process for sex offenders, Wisconsin, Washington, Iowa, California, Florida, New Jersey, Illinois, Virginia, Kansas, Missouri, South Carolina, Arizona, North Dakota, and New Hampshire provide for a probable cause hearing prior to proceeding with the commitment process. See Wis. Stat. § 980.04, Wash. Rev. Code § 71.09.040, Iowa Code § 229A.5, Cal. Welf. & Inst. Code § 6602 (1996), Fla. Stat. § 394.195. N.J. Stat. Ann. § 30:4-27.28(f), 725 Ill. Comp. Stat. 207/30, Va. Code Ann. § 37.2-906, Kan. Stat. Ann. § 59-29a05, Mo. Ann. Stat. § 632.489, S.C. Code Ann. § 44-48-80, Ariz. Rev. Stat. Ann. § 36-3705, N.D. Cent. Code § 25-03.3-11, N.H. Rev. Stat. Ann. § 135-E:7.
58. In Minnesota’s commitment proceedings, the person to be committed does not have the right to a jury trial, so all commitments are decided by a judge. Pursuant to Minn. Stat. § 253B.185, subd. 1(d), if the court finds by clear and convincing evidence
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that the prospective patient is an SPP or SDD under the statutory definition, they will be committed to the MSOP under a court order for sex offender specific treatment. Most other states with similar commitment statutes apply the substantially higher “reasonable doubt” standard.
59. Unlike in Minnesota, states like Wisconsin, Washington, Iowa, Texas, California, Florida, Illinois, Massachusetts, Virginia, Kansas, Missouri, South Carolina, Arizona and New Hampshire provide for trial by jury for the civil commitment of sex offenders at the request of the prosecutor or person to be committed. See Wis. Stat. § 980.05, Wash. Rev. Code § 71.09.060, Iowa Code § 229A.7, Tex. Health & Safety Code Ann. § 841.061, Cal. Welf. & Inst. Code § 6603(a) (1996), Fl. Stat. § 394.196, 725 Ill. Comp. Stat. 207/35, Mass. Gen. Laws Ann. ch. 123A, § 14 (2010), Va. Code Ann. § 37.2-908, Kan. Stat. Ann. § 59-29a06, Mo. Ann. Stat. § 632.492, S.C. Code Ann. § 4448-90, Ariz. Rev. Stat. Ann. § 36-3706, N.H. Rev. Stat. Ann. § 135-E:9.
60. The population of people civilly committed to the MSOP has grown dramatically since the program was started. In 1990, there were fewer than thirty patients civilly committed as sex offenders. Legislative Auditor Report at 4. That number grew to 149 in 2000 and to 575 in 2010. Id. The Legislative Auditor Report projected that in 2020, there will be 1109 people civilly committed to the MSOP based on the current growth trend in commitments. Id. III. Civil Commitment to the MSOP
61. All civilly committed sex offenders are indefinitely committed to the MSOP, which is a treatment program with secure facilities in Moose Lake, MN and St.
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Peter, MN. The Moose Lake facility houses patients in the first two phases of the treatment program. The St. Peter facility houses patients in the third and final stage of the program.
62. Defendants to not provide an assessment at the time the individual is first civilly committed to MSOP to determine what phase of the program the individual should be in or whether the individual, in fact, should be committed to either the Moose Lake or St. Peter facilities, or whether they could be treated in a less restrictive environment.
A. The MSOP Treatment Program 63. MSOP is intended to be a treatment facility. All persons civilly committed as SPP or SDP enter the MSOP treatment program.
1. MSOP Treatment Facilities 64. The only MSOP facilities are the secure treatment locations at Moose Lake and St. Peter. The 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. 65. Other states, such as Texas, provide such alternatives. In Texas, all civilly committed sex offenders are part of an outpatient treatment program in which they are subject to constant supervision, GPS monitoring, and intensive treatment. If they fail to meet the conditions of their commitment, they are charged with a felony and must return to prison. See Legislative Auditor Report at 42-43. 66. Similarly, in Wisconsin, when civilly committed sex offenders progress in treatment to a point where it is substantially probable they will not reoffend, they are
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placed on supervised release. See Wisconsin’s Sexually Violent Person Law, Chapter 980: Supervised Release Program (Jan. 19, 2012). http://www.dhs.state.mn.us/main/groups/agencywide/documents/pub /dhs16_166453.pdf (last visited Aug. 7, 2013).
67. In New York, civilly committed sex offenders can be immediately placed in an outpatient program called Strict and Intensive Supervision and Treatment in which the patient participates in individualized treatment, has monthly meetings with a case officer, and is electronically monitored. See New York Sex Offender Management and Treatment Act: An Overview of NYS Strict and Intensive Supervision and Treatment (SIST) (Jan. 19, 2012) http://www.dhs.state.mn.us/main/groups/agencywide/documents/pub/ dhs16_166450.pdf (last visited Aug. 7, 2013).
2. Sex Offender Treatment Provided by the MSOP 68. Upon entering the Moose Lake MSOP facility, all Plaintiffs and Class members are presented with a contract entitled Consent for Participation in Sex Offender Treatment. Each Plaintiff and Class member is required to either sign the portion of the form consenting to receive the treatment MSOP provides according to its treatment program and policies, or sign the portion of the form stating they refuse to participate in sex offender treatment. Each Plaintiff and Class member is then supposed to be evaluated and given an individual treatment plan. 69. The contract provides that the patient’s therapist has discussed the course of treatment at the MSOP, that the patient received information about the levels of care and stages of treatment, that the patient has received the goals and behavioral expectations at
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the MSOP, that upon completion of treatment the MSOP will support their petition for provisional discharge, that each stage of treatment has specific goals and behavioral expectations, that services such as education and vocation are provided, that failure to participate in treatment may prolong civil commitment status, that the patient will need to reveal information about past crimes, and that treatment officials must report any previously unreported child or vulnerable adult victims they learn of from the patient.
70. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert were aware that each Plaintiff and Class member was required to sign the contract and that the contract was also signed by an employee of the MSOP.
71. The MSOP treatment program is broken out into three phases. In Phase I, patients must learn how to comply with the MSOP facility’s rules and learn basic treatment concepts. No sex offender-specific treatment whatsoever is provided in Phase I. In Phase II, patients must discuss and work through their sexual offenses and patterns of sexual abuse. In Phase III, which takes place at the St. Peter facility, the program focuses on community reintegration. This third phase consists of MSOP Supervised Integration, in which patients live in a secure area within the St. Peter Facility. Patients may take accompanied outings off campus, and Community Preparation Services, in which patients live on campus in a house that is not within the secure perimeter. Throughout Phase III, patients are electronically monitored.
72. According to MSOP treatment protocol, Plaintiffs and Class members should move through the phases of the treatment program by following their individual treatment plans, participating in treatment, completing treatment assignments, and
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showing they have changed their thinking and behavior. Their progress is to be reviewed quarterly and annually.
73. Patients are evaluated on a nine factor Goal Matrix that lays out the focus of each factor in each phase of the treatment program. The nine factors are: Group Behavior, Attitude to Change, Self-Monitoring, Thinking Errors, Pro-Social Problem Solving, Emotional Regulation, Interpersonal Skills, Sexuality, Cooperation with Rules and Supervision, Healthy Lifestyle, and Life Enrichment. See Report on the Evaluation of Treatment Phase Progression at the Minnesota Sex Offender Treatment Program at 3 (Dkt. No. 294, Ex. 294-1) (“Evaluator Report”). Patients are given a score from 1-5 on each category, with 1 being Deficient, 2 being Needs Attention, 3 being Satisfactory, 4 being Enhanced, and 5 being Proficient. Id. at 4.
74. The MSOP treatment program was designed to be completed within four years. As of January 1, 2012, 64% of MSOP patients were in Phase I, 24% were in Phase II, and 12% were in Phase III. As no sex offender-specific treatment is provided for Phase I patients, the majority of MSOP patients are not provided any sex offenderspecific treatment at all. Additionally, 75% of MSOP patients have been civilly committed to the MSOP for between three years and ten years or more. It was not until February of 2012 that the first patient in the history of the MSOP was deemed to have completed the treatment program, after commitment to the program for more than 18 years, and be ready for provisional discharge. That patient is required to attend regular therapy as a provision of his discharge.
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75. Minnesota’s civil commitment statute does not provide for any required periodic review or any reporting to the court as to the status of the civilly committed individual.
76. There are quarterly reviews and annual reviews that are conducted by treatment providers at the secure treatment facility, however, those do not consider whether or not the individual satisfies the requirements for a reduction in custody, nor do they provide a risk assessment of the committed individual.
77. There is no statutorily required independent examination or review of a committed individual, or right to one at any point in his or her commitment, until there is a petition for reduction in custody filed.
78. The Defendants do not provide for periodic independent reviews of the civilly committed individuals at MSOP.
79. The Defendants do not provide reviews that take into consideration whether or not the individual satisfies the requirements for a reduction in custody, nor do they provide a risk assessment of the committed individual.
B. Changes to MSOP Policy Since 2008 80. In or around March of 2008, Defendant Benson resigned his position as the Minnesota Deputy Commissioner of Corrections (“DOC”) and was named Executive Director of the MSOP by the DHS. Defendant Benson did not have any actual expertise or past experience operating or managing a treatment facility prior to being the Executive Director of the MSOP.
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81. Defendant Benson hired a number of employees directly from the Minnesota DOC to work for the MSOP including Defendant Moser, Gregg Carlson, Timothy Gorr, Jim Berg, and Erick Skon.
82. When Defendant Benson took over the role as the Executive Director of the MSOP, he implemented new policies that restricted many of the rights previously enjoyed by Plaintiffs and Class members. He also changed the MSOP to meet the standards of a maximum security prison facility. Examples of those policy changes include punishment and abuse of Plaintiffs and Class members through threats, restricted visitation, restricted property rights, censored mail, monitored calls, restricted personal physical movement, unreasonable searches, and discipline without due process of law.
83. Most policies and procedures implemented since the hire of Defendant Benson have been adopted directly from the DOC. Some of those policies include: Use of Force, Office of Special Investigations, Intelligence Information Gathering, Evidence Policy Behavioral Expectation Reports (BERs), Client Grievances, Client Request Policy, Visiting Behavioral Expectations, Mail Policy, and Property Policy.
84. Nearly every policy and procedure implemented since Defendant Benson began at the MSOP in 2008 goes beyond the scope of what is necessary for treating Plaintiffs and Class members in a therapeutic manner based on professional judgment in a safe environment and instead was enacted for staff convenience. None of these restrictions were necessary prior to 2008 to maintain control or security of the facility. The restrictions and changes have created a hostile environment that encourages a sense of hopelessness, powerlessness, and fear among Plaintiffs and Class members. The
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Legislative Auditor Report stated, “In the absence of clinical leadership when the current administration took over MSOP in 2008, some policies were put into place without adequate consideration for the effect those policies would have upon the therapeutic environment.” Legislative Auditor Report at 68.
C. Problems with the MSOP as Implemented 85. The Legislative Auditor Report found that one factor that may explain why there has never been a discharge from the program is that “problems in the treatment program over the last ten years have likely affected the progress of some sex offenders.” Legislative Auditor Report at xxi. 86. The Legislative Auditor Report also found that patients get stuck in Phase I of the program, which focuses on following rules and learning how to participate in treatment groups rather than addressing the patient’s sexual offenses or how to prevent re-offending. This may be because the MSOP does not promote “positive treatment participation.” Legislative Auditor Report at 64. 87. Frequent leadership changes at MSOP have also contributed to issues with the treatment program that have resulted in the Plaintiffs and Class members remaining in the early stages of treatment. The MSOP has had three executive directors and four executive clinical directors over the last eight years, resulting in regular and substantial changes to the treatment program. This turnover has led to inconsistent treatment being provided to Plaintiffs and Class members, and Plaintiffs and Class members being forced to unnecessarily repeat treatment modules. For example, although individualized treatment plans and reviews are performed for each patient, they have become less
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specific and detailed than they were in the past. The Legislative Auditor Report found that the treatment plans and reviews did not give the patients a clear idea of what they need to do to advance through treatment and that clinicians did not explain how they came to conclusions about patients. Legislative Auditor Report at 73. In fact, Plaintiffs and Class members draft their own treatment plans for approval by clinicians instead of clinicians directing treatment to Plaintiffs and Class members.
88. The Legislative Auditor Report also found that “the amount of treatment delivered at MSOP facilities is lower than at any other adult inpatient sex offender treatment program in the state.” Legislative Auditor Report at 62. Therefore, the State’s highest risk individuals receive the least amount of treatment. When compared to other programs across the country, MSOP “is at the low end of the range of treatment hours considered to be best practices for sex offender civil commitment programs.” Id. at 64.
89. Indeed, “[m]ost of Moose Lake clients’ time is unstructured.” Id. at 65. As of November 2010, clients who were participating in treatment at Moose Lake received on average six hours of group therapy a week. Id. at 62. Roughly half of clients sampled in the Report received additional psycho-educational modules for an hour and a half per week. Id.
90. Plaintiffs and Class members are provided as little as one hour a week in support groups. Requests for additional frequent and intensive treatment are routinely denied.
91. In contrast, the DOC, in facilities that are not primarily for treatment, provides between 9 and 10.5 hours per week of group therapy and psycho-educational
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classes for its sex offender treatment. Privately operated Alpha Human Services, which provides a comparable type of treatment to MSOP, provides at least 16 hours per week. Id. at 50.
92. The MSOP has clinical staff present at the Moose Lake facility for only eight hours a day and only on weekdays. From 4:30 p.m. to 8:00 a.m. on weekdays and all day on weekends and holidays there is no clinical or treatment staff present at the facility. Plaintiffs and Class members are locked in their cells for a minimum of ten hours per day.
93. Defendants have not provided Plaintiffs or Class members treatment by a psychiatrist or licensed clinical psychologist trained, qualified, certified, or licensed to provide meaningful treatment to a SDP or SPP. Defendants and employees treating Plaintiffs and Class members at MSOP are not qualified, certified or licensed to treat sex offenders. As the Legislative Auditor Report identified, MSOP has initiated efforts to improve therapist training, but currently, “some clinicians were formerly security staff, with backgrounds in criminal justice. Some have only a high school diploma.” Legislative Auditor Report at 61. Only since 2010 has MSOP required new clinicians to have master’s degrees and be licensed or license-eligible.
94. The Legislative Auditor Report found that the MSOP has also had difficulty filling clinical supervisor positions at Moose Lake, and that as a result, has had problems ensuring that the treatment program is being implemented consistently. Id. at 60.
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95. General clinical understaffing has also been a persistent problem. The Legislative Auditor Report found that clinician caseloads are too high, which has “affected the ability of the program to deliver treatment to clients.” Id. at 60-61. The clinical director told the Legislative Auditor that the goal is to have eight patients per clinician but that some clinicians at Moose Lake have up to 25 patients. This understaffing has resulted in poor treatment. The Legislative Auditor Report states that “In general, we observed that files in recent years (since 2008) tended to have much less detail than those from previous years, suggesting that clinicians either did not have time to fully document client behaviors or be fully aware of client behaviors relevant to treatment.” Id. Such deficient record keeping impedes Plaintiffs and Class members’ progress in the program.
96. In 2009, psycho-educational modules at Moose Lake were completely suspended for three quarters due to staff vacancies. There was also a time when MSOP did not give any treatment for eight to ten days between trimesters so staff could complete paperwork. This totaled to about a month per year where no treatment was provided to Plaintiffs and Class members. Id. at 73-74.
97. By any measure, the MSOP is not providing Plaintiffs or Class members with a therapeutic environment. The Legislative Auditor Report stated, “Historically and currently, the program [at MSOP] has struggled to create an environment that fosters client rehabilitation. Outside advocates and experts, MSOP clients, and some MSOP staff have complained that, historically and currently: (1) some MSOP staff held disrespectful,
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negative, punitive, and untherapeutic attitudes towards clients; and (2) that the culture at the facilities was counter-therapeutic.” Id. at 66.
98. Plaintiffs and Class members who suffer from depression and other emotional disorders are routinely punished for manifesting behaviors associated with the disorder with which they have been diagnosed. Defendants have failed or refused to provide medications to help deal with these emotional management disorders. Additionally, Defendants have refused or failed to make any appropriate psychiatric or psychological treatment available to Plaintiffs and Class members.
99. Unlike other health care facilities in the State, including the Minnesota Security Hospital in St. Peter, which treats Mentally Ill and Dangerous patients committed under §253B, MSOP is not, and has never been, accredited by any independent medical accreditation society that may provide objective guidance on standards of professional care being exercised in their facilities, such as the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).
100. Reviews of the MSOP’s treatment program conducted after the Legislative Auditor Report was issued has confirmed the treatment issues identified in that report and identified further issues that have prevented patients from moving successfully through the MSOP’s treatment program.
101. As a result of the lack of movement of MSOP patients through the treatment program, the Court created the MSOP Program Evaluation Team (“PET”) pursuant to this litigation to evaluate treatment phase progression at the MSOP. [Karsjens Dkt. # 281]. The Court ordered the PET to review the treatment records of some of the
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patients who have been in their current treatment phase for at least 36 months without advancing to the next treatment phase. Id. As part of this review, the PET could consider topics relevant to phase progression such as staffing, the type and amount of treatment offered, and the accuracy of client placement, among other topics. Id. The Court asked that the PET provide a report to the MSOP, the Court, and counsel for the parties in this litigation with Findings and Recommendations on phase progression as well as a recommendation on the need for future reviews of the MSOP treatment program. Id.
102. The PET was comprised of professionals who specialize in sex offender treatment. Three of the members serve on a team that performs annual site visits to the MSOP in order to review and evaluate its treatment program. The other two members had never had any prior involvement with the MSOP. They conducted a site visit, a conference call with MSOP staff, and a review of 50 treatment files prior to issuing their recommendations. See Evaluator Report at 2-3.
103. The Evaluator Report made a number of findings and recommendations indicating that the MSOP’s treatment program is not effectively moving patients through the treatment phases.
104. The Evaluator Report found that 30% of the patients in Phase I whose files they reviewed were placed in the wrong treatment phase under the MSOP’s own policies. See Evaluator Report at 4.
105. The Evaluator Report also found that the MSOP’s thresholds for movement from Phase I to Phase II and from Phase II to Phase III may be too high. Currently, the MSOP requires clients to achieve “Satisfactory” progress on all nine Goal Matrix factors
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for two consecutive quarters in order to move from Phase I to Phase II and patients must receive a rating of “Enhanced” on all nine Goal Matrix factors to move from Phase II to Phase III. They recommended that the MSOP review their requirements and possibly adjust them to a more realistic and less stringent level. See Evaluator Report at 4-5.
106. Furthermore, the Evaluator Report recommended that the MSOP identify the criteria for moving from Phase III to Community Preparation Services (“CPS”) because they currently do not have any such criteria. See Evaluator Report at 5. Additionally, the Evaluator Report found that the MSOP should clearly indicate how long patients must demonstrate competency through Phase III privileges in order to be recommended for provisional discharge and that the criteria for phase progression be modified for patients in the Alternative Program at the MSOP. Id.
107. Finally, the Evaluator Report recommended that the provisional discharge criteria for patients in the Alternative Program reflect the fact that many of those patients will be placed in environments that provide ongoing supervised care and that the level of risk reduction needed for them to live safely in the community is different than that of patients in the conventional program. Id.
108. In order to ensure that patients are progressing through the treatment program, the Evaluator Report recommended that the MSOP institute a quality assurance process whereby clinical review is automatically triggered when a patient has not progressed to the next treatment phase in a timely manner. See Evaluator Report at 6. The Evaluator Report recommends that future reviews of the MSOP program be dependent on the MSOP’s effectiveness at moving patients through the treatment program. Id.
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109. The Evaluator Report identified some other areas of the treatment program that are interfering with patients’ progression through the treatment phases. The Evaluator Report states that the MSOP uses multiple theoretical orientations in Phases II and III, which has interfered with the phase progression of patients. See Evaluator Report at 5. The PET identified unreliable clinician scoring of the MSOP’s Goal Matrix system as an impediment to patient treatment. Id. The Evaluator Report recommended that the MSOP conduct staff trainings to address the problem, establish behavioral anchors for the scale used to rate patients on each Matrix item, and link the numerical scores with a narrative description of patient behavior for each Matrix item. Id. Additionally, the Evaluator Report recommended that patient’s quarterly reports be organized to document patient barriers to phase progression. Id. Finally, the Evaluator Report identified large core group size and frequent staff changes as an issue that impacts patient progress and the therapeutic environment. Id.
110. As mentioned above, the MSOP participates in annual site visits conducted by three independent sex offender treatment professionals, who also served on the PET. The Minnesota Sex Offender Program Site Visit Report (“Site Visit Report”) dated December 27, 2012, provides the findings of the site visit conducted in 2012 and, like the Evaluator Report, suggests various changes to the treatment program. Site Visit Report [Karsjens Dkt. # 294, Ex. 294-3]. The Site Visit Report contained some of the same recommendations as the Evaluator Report. Additionally, the Site Visit Report recommended the following changes:
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a. The MSOP should place a stronger emphasis on skill building rather than psychological insight in its treatment program. See Site Visit Report at 4.
b. The MSOP should ensure that homework assigned to patients in psycho-educational modules be reviewed in a timely fashion because there is often not enough time in core group to review each patient’s assignments. Id. at 8.
c. The MSOP should provide individual therapy to patients at Moose Lake, at least for patients on some of the specialized units. Id. at 9.
d. The MSOP should increase the ratio of security counselors to patients, which has decreased quite a bit over the last few years, in order to allow for security counselors to be involved in the therapeutic aspects of the MSOP. Id. at 12.
e. Each patient’s rehabilitation services should be integrated into their Individual Treatment Plan. Id. at 8.
f. The MSOP should increase the level of psychiatric services for the program because the MSOP currently only has one full-time psychiatric nurse practitioner for both Moose Lake and St. Peter as well as 12 hours of psychiatrist time per week. Id. at 11.
g. The MSOP should evaluate whether the current staffing level of Unit Directors is appropriate. Id. at 11.
111. Defendants, in their official capacity, have the power to determine whether
the MSOP will affirmatively petition or support a patient’s petition for a reduction in
custody, including provisional discharge or full discharge.
112. It has been the practice and procedure of Defendants not to support such
petitions unless the patient has completed the entire treatment program, which has only
been accomplished by one patient in the history of the MSOP.
113. There are Class members housed at Moose Lake or St. Peter who could be
treated in a less restrictive environment. Defendants Jesson, Benson, Moser, Lundquist,
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Johnston, Hébert and Zimmerman, are aware of this and have done nothing to affirmatively petition or support petitions for reduction in custody, provisional discharge or full discharge for these individuals.
114. There are Class members being housed at Moose Lake or St. Peter who are not a dangerous sexual offender and who do not pose significant risk of public safety. Defendants Jesson, Benson, Moser, Lundquist, Johnston, Hébert and Zimmerman are aware of this and have done nothing to affirmatively petition or support petitions for reduction in custody, provisional discharge or full discharge for these individuals.
115. There are Class members who are unable to file a petition for a reduction in custody without medical or legal assistance and who do not meet the commitment criteria. Defendants Jesson, Benson, Moser, Lundquist, Johnston, Hébert and Zimmerman are aware of this and have done nothing to affirmatively petition or support petitions for reduction in custody, provisional discharge or full discharge for these individuals.
116. There are Class members whose treatment progress is being harmed by their commitment to MSOP. Defendants Jesson, Benson, Moser, Lundquist, Johnston, Hébert and Zimmerman are aware of this and have done nothing to transfer these individuals to another location. Defendants Jesson, Benson, Moser, Lundquist, Johnston, Hébert and Zimmerman, in their official capacity, were each aware that each Plaintiff and Class member entered into a contract for treatment at the time they were civilly committed to MSOP.
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117. Defendants Jesson, Benson, Moser, Lundquist, Johnston, Hébert and Zimmerman, in their official capacity, were aware of the failure to progress Plaintiffs and Class members through the different treatment phases to the point that they could be conditionally or unconditionally released.
118. Defendants Jesson, Benson, Moser, Lundquist, Johnston, Hébert and Zimmerman, in their official capacity, actively participated in and supported the inadequate treatment policies as implemented by MSOP, which resulted in the failure to comply with contract to provide treatment by MSOP.
119. Defendants Jesson, Benson, Moser, Lundquist, Johnston, Hébert and Zimmerman, in their official capacity, were aware that the MSOP treatment program as implemented had only conditionally released a single person and had never unconditionally released anyone committed to MSOP.
120. Yet Defendants Jesson, Benson, Moser, Lundquist, Johnston, Hébert and Zimmerman, in their official capacity, each failed to take action to change the inadequate treatment policies and practices at MSOP and, in fact, endorsed the use of the policies and practices by MSOP employees.
121. Plaintiffs and Class members are not billed for individualized care. Instead, they are billed a per diem rate regardless of the individual treatment or individual costs. There are many levels of care and many varying levels of cost, depending upon the programming the patient receives or otherwise requires. Yet all of the Plaintiffs and Class members are charged at one daily rate regardless of individual needs. That daily rate is currently $317 per day.
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122. For patients who have health insurance coverage, the billing system is ineffective. Plaintiffs and Class members who have health insurance cannot use that coverage to pay the costs associated with the MSOP. This is because the MSOP does not follow the accepted billing procedures, is not accredited and otherwise does not meet the standards of recognized mental health care. In other words, Plaintiffs and Class members who are civilly committed as mentally ill to the MSOP are receiving such deficient treatment, under such poor conditions, that it cannot be paid for through health insurance coverage.
D. Discipline and Punishment 123. In addition to the lack of treatment, Defendants have subjected Plaintiffs and Class members to disciplinary and punitive policies, practices, and procedures during their civil commitment to the MSOP, particularly since Defendant Benson became Executive Director and implemented new policies, procedures and practices. 124. The main disciplinary tools used at the MSOP are Behavior Expectation Reports (“BER”). Plaintiffs and other Class members are expected to follow the Behavioral Expectations Handbook. The current handbook was issued in 2009 and updated in 2011. It contains descriptions of behavioral violations, consequences, and a disciplinary procedure for BERs. 125. Defendants categorize behavioral violations as either Minor Rule Violations or Major Rule Violations. However, the handbook is not clear about what constitutes a minor or major rule violation and what the disciplinary consequences are for different violations.
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126. Minor Rule Violations are defined as those that violate facility policy or procedure but that MSOP staff does not believe places anyone in immediate danger or present management difficulties. As a result of a Minor Rule Violation, Plaintiffs and Class members may be limited from using or fully restricted from using the area or items involved in the violation.
127. Major Rule Violations are those that MSOP staff determine jeopardize the safety of others or present significant management difficulties. This would include behavior such as possession of contraband or interfering with security procedures. As a result of a Major Rule Violation, Plaintiffs and Class members may be required to stay in their cell with the exception of a ten minute window each hour and be fully restricted from a long list of areas including the outer yard, the gym, the library, unit electronics, work for pay assignments, visits with friends or family, and the unit common area.
128. Other behavior that the handbook classifies as violating MSOP rules includes a patient signing up for an activity and not attending that activity, a patient attending an activity that he had not signed up for, dress code violations, loitering in the halls or other common areas, or leaving the lights on in a cell.
129. MSOP staff does not consistently apply the Behavioral Expectations Handbook to Plaintiffs and Class members. As a result, Plaintiffs and Class members are unable to determine what level of punishment or restriction they should expect for any given rule violation or behavior.
130. If MSOP staff believes a Plaintiff or Class member has violated a rule, they issue a redirect or a minor or major BER. A redirect is a request from MSOP staff that the
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Plaintiff or Class member alter their behavior. It is supposed to be removed from the Plaintiff or Class member’s record after 45 days, however, that is often not the case. If the offending behavior persists, the staff may then issue a BER. After receiving a BER, the Plaintiff or Class member can request a review of the BER itself and the restrictions imposed. The BER hearing panel consists of MSOP employees from various areas of treatment including clinical, security, and programming. The hearing board is not impartial or objective and the hearing process is a sham.
131. At the BER hearing, Plaintiffs or Class members are not allowed to present evidence, cross examine witnesses, or face their accusers. Plaintiffs or Class members are not given copies of the incident reports or other evidence that is being used against them to impose disciplinary restrictions.
132. A Plaintiff or Class member may only appeal the hearing panel’s decision to the MSOP Facility Director. However, most of the policies and procedures complained of by the Plaintiffs and Class members are implemented by the Director, suggesting a less than impartial appellate process.
133. The clinical team and vocational services utilize Individual Treatment Plans and Treatment Memos to issue further discipline and restrictions on Plaintiffs and Class members. Vocational services will often remove a Plaintiff or Class member from the vocational Work for Pay Program or reduce the amount of hours he is entitled to participate as a result of receiving a BER.
134. Receiving BERs directly affects a patient’s progression in treatment. Disciplinary restrictions cause at least a six month delay in progression in treatment.
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135. The High Security Area (“HSA”) is also used as a disciplinary measure at the MSOP. HSA is essentially solitary confinement. Plaintiffs and Class members are held in HSA when MSOP staff determines they need to be placed on Protective Isolation Status.
136. Plaintiffs and Class members can be placed in HSA until MSOP staff determines they have regained behavioral control. While in HSA, Plaintiffs and Class members are only allowed out of their cell for one hour per day.
137. Plaintiffs and Class members are kept in HSA much longer than is necessary, and it is used as a punitive measure rather than a behavioral control measure.
138. Other punitive policies and practices in place at the MSOP by Defendants include:
a. punishing Plaintiffs and Class members by denying access to group therapy;
b. intentionally and unnecessarily, delaying delivery of mail to Plaintiffs and Class members;
c. unreasonably restricting Plaintiffs’ and Class members’ access to, and conduct during, visitation;
d. restricting Plaintiffs’ and Class members’ access to both a regular library and a law library;
e. denying Plaintiffs’ and Class members’ access to recreational activities and exercise;
f. restricting what can be purchased by Plaintiffs and Class members from the inmate store;
g. denying Plaintiffs and Class members educational programming;
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h. denying Plaintiffs and Class members any meaningful employment opportunities;
i. permitting MSOP staff to punish Plaintiffs and Class members by denying them employment;
j. denying Plaintiffs and Class members access to hobbies;
k. restricting the time Plaintiffs and Class members are allowed access to the yard;
l. allowing staff to punish Plaintiffs and Class members by denying them access to the yard or to the gym;
m. allowing staff to punish Plaintiffs and Class members by locking them in their cell;
n. punishing Plaintiffs and Class members by removing furniture;
o. executing security checks every half hour by knocking loudly and disruptively on the cells of Plaintiffs and Class members;
p. creating a patient disciplinary board for Plaintiffs and Class members that does not follow constitutional standards of due process;
q. creating policies that, as implemented, supersede statutory rights provided to Plaintiffs and Class members under the Patient Bill of Rights;
r. taking away the basic life skills of allowing Plaintiffs and Class members to manage their personal financial affairs;
s. taking away the right for Plaintiffs and Class members to visit each other’s cells;
t. taking away the right to drug and alcohol treatment for Plaintiffs and Class members;
u. denying Plaintiffs and Class members the right to greet and shake hands with other peers in treatment;
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v. denying Plaintiffs and Class members the right to share food and other items with others; and

w. denying Plaintiffs and Class members the right to wear certain clothes such as hats, bandanas, and muscle shirts, within the confines of their own living units.

139. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert,

in their official capacity, were each aware that Plaintiffs and Class members were

subjected to these disciplinary practices on a daily basis and actively participated in such

conduct.

140. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert,

in their official capacity, did nothing to stop these disciplinary practices from occurring

or to prevent the ongoing use of these policies and practices at the MSOP facilities.

E.

Non-Therapeutic Environment

141. The policies, procedures, and practices of Defendants have led to a non-

therapeutic environment in the MSOP.

1. Physical Layout of the Secure Facility

142. The MSOP facility at Moose Lake is laid out exactly like state prisons with

cell units facing into a central courtyard where Plaintiffs and Class members may be

observed from one central station. MSOP staff wears police-style uniforms. The newly

designed and constructed living unit, Complex One, is designed just like a correctional

facility. The Legislative Auditor Report confirmed that it was not designed with

therapeutic goals in mind. Legislative Auditor Report at 68.

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143. Despite the well documented concerns regarding the difficulty of fostering a therapeutic environment in the current facility at Moose Lake, MSOP is currently planning an expansion that will create a second building identical to Complex One.
144. Mail and kitchen facilities at the Moose Lake facility have not been expanded since the program was originally started. Therefore, a facility that was designed for 130 patients is now required to serve over 400 patients. Those limited facilities have resulted in inadequate meal and mail service for Plaintiffs and Class members.
2. Cell Conditions 145. In 1994, the MSOP was operating in a hospital setting. Patients had individual rooms with their own mattress, bed, dresser, desk, and storage. Private bathrooms were available and toilets were not in the rooms. Patients were not locked in their rooms. 146. In the past, patients could purchase video game systems, televisions, word processors, and furniture from any vendor. Currently, Plaintiffs and Class members must make canteen purchases for over the counter medications, food, and hygiene products through MINNCOR, which is the exclusive vendor for MSOP. This results in excessive prices for purchases. In the past, patients could buy, sell, or trade with other patients upon approval from that patient’s treatment team. 147. When Complex One was constructed, the MSOP obtained waivers from the Minnesota Department of Health so it would not have to comply with statutorily required living standards for state hospitals. The waivers allowed the MSOP facility at Moose Lake to have things like the springless beds, smaller cells with inadequate space between
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beds, inoperable windows in cells, smaller windows in cells, and a more prison-like setting as opposed to a home-like environment.
148. This resulted in the current cells Plaintiffs and Class members reside in. Plaintiffs and Class members are double bunked in 9.5 x 15 ft. wet cells consisting of two metal bed frames with springless mattresses that are only 30 inches apart, small stainless steel desks, and a stainless steel toilet/sink combination unit fixed into the cell.
149. Cell doors are metal and only have a small viewing window. The two windows in each cell are only five inches wide. The only privacy when using the toilet is a movable screen. The only storage Plaintiffs and Class members are allowed are three storage lockers that must fit under the bed.
150. Plaintiffs and Class members are locked in these cells every day from at least 9:45 p.m. until 6:25 a.m. Prior to Defendant Benson becoming Executive Director, lock-in was contingent on a patient’s progression in treatment.
151. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of these cell conditions and did nothing to changes these conditions.
3. Double Bunking 152. Most Plaintiffs and Class members are double-bunked with another civilly committed sex offender. This double bunking has led to increased physical and sexual assaults. See Goldhammer v. Rose, et al., 11-CV-00852 (JNE/JJK) (April 4, 2011). In Goldhammer, the plaintiff was a patient at MSOP in Moose Lake. Despite both the plaintiff and his assailant warned MSOP staff of an impending sexual assault on
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Goldhammer, due in part to double bunking, Goldhammer was physically and sexually assaulted in his cell by his substantially larger bunkmate. At least one other lawsuit regarding an assault in a double-bunked cell at MSOP is pending.
153. If MSOP patients are dangerous threats to society, double bunking Plaintiffs and Class members in locked cells with a known dangerous individual is inherently unsafe.
154. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of that Plaintiffs and Class members were being double bunked and did nothing to prevent this from occurring.
4. Searches 155. Defendants perform unwarranted and unreasonable searches of Plaintiffs’ and Class members’ persons, property, and living quarters at MSOP. 156. Currently, Plaintiffs and Class members are subject to unwarranted pat searches of the body, unclothed body searches, and body cavity searches without reasonable suspicion being established. Plaintiffs and Class members may be pat searched or wand searched at any time for no reason including whenever leaving the craft room in recreation, the visiting area or vocational work areas. 157. In the past, patients were not subject to strip searches. Plaintiffs and Class members are now subject to strip searches upon entry to the HSA, regardless of the incident that led to being placed in the HSA. When a Plaintiff or Class member refuses to comply with a strip search, the facility staff will forcibly cut off his clothing and physically inspect his groin area and buttocks.
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158. Plaintiffs and Class members are also subject to strip searches any time they leave or re-enter the secure perimeter of the MSOP facility. For example, if they are suffering from a medical emergency and need to go to the hospital, the Plaintiff or Class member will be strip searched prior to being allowed to get in a waiting ambulance. The Plaintiff or Class member is then strip searched again when they return to the secure MSOP facility, even though two MSOP security guards accompany Plaintiffs and Class members the entire time they are outside the secure facility.
159. Plaintiffs and Class members are also subject to regular random cell searches. These cell searches are used as a punitive exertion of authority on Plaintiffs and Class members. Plaintiffs and Class members are not allowed to observe the searches or be present during their performance. No meaningful process exists to oppose the searches or appeal the resulting arbitrary confiscation of Plaintiffs’ and Class members’ property.
160. In addition to pretextual random cell searches, Plaintiffs and Class members are subject to daily “window checks” of their cell. Defendants claim the purpose of these searches is to physically inspect windows in the patients’ cells. The reinforced glass windows are roughly five inches wide and recessed into the wall over a foot. The windows do not open. Although the stated reason for the window checks is prevention of escape, it is not possible for a person to fit through the window opening even if the reinforced glass could be broken. The true function of the window checks is to allow guards to enter the cells of the Plaintiffs and Class members and perform regular, unwarranted searches of the cells.
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161. The following policies, procedures, and practices related to searches
performed by Defendants are also unreasonable:
a. the policy of routinely searching the contents of Plaintiffs’ and Class members’ incoming and outgoing mail;
b. the policy and practice of opening and reviewing Plaintiffs’ and Class members’ mail that has been clearly marked as legal correspondence;
c. performing strip searches on Plaintiffs and Class members after visitations, despite the excessive monitoring and conduct regulations during visitation;
d. strip searching and shackling Plaintiffs and Class members during transportation outside the secure perimeter by MSOP personnel;
e. conducting random, unreasonable, and unwarranted searches of Plaintiffs’ and Class members’ quarters, property and persons;
f. monitoring Plaintiffs’ and Class members’ telephone calls;
g. constant monitoring of Plaintiffs’ and Class members’ every action and conversation;
h. requiring a staff person to be present during visits between medical providers and Plaintiffs and Class members;
i. monitoring Plaintiffs and Class members when they are speaking with clergy or other religious volunteers;
j. forcing Plaintiffs and Class members to buy from approved vendors only, even though staff check all incoming mail; and
k. allowing staff to shakedown Plaintiffs’ and Class members’ cells at any time.
162. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert,
in their official capacity, were each aware of these policies, procedures, and practices
related to unreasonable searches and yet did nothing to stop these from occurring or to
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prevent the ongoing use of these policies, procedures and practices at the MSOP facilities and actively participated in such conduct.
5. Ph ysical Restraints 163. In the past, patients were allowed to leave the facility with a staff escort and without physical restraints. Patients could move freely about the compound and socialize with other patients at MSOP. Patients were not locked in their rooms at night. Patients could shop at local stores, cook food on stoves and barbeques, run their own businesses, carry cash, and conduct personal banking. 164. Since Defendant Benson took over MSOP in 2008, the restrictions on movement at the MSOP facilities are identical to a maximum security correctional facility. 165. When Plaintiffs and Class members leave the secure facility they are placed in handcuffs, leg irons and a black box, complete with waist-chain. They are then pushed in a wheel chair to the transport vehicle where they are placed into a small cage inside the van. They are subject to these same restraints when they suffer a medical emergency and need to leave the secure facility via ambulance. 166. Plaintiffs and Class members cannot ever move freely around the facility. The only time they can move around an area as they wish is when they are locked on their designated living unit. 167. The physical restraint policy is impermissibly applied across the board to Plaintiffs and Class members. No consideration is given to the individualized security risk that a patient poses.
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168. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of these policies, procedures, and practices related to the unreasonable use of physical restraints and yet did nothing to stop these from occurring or to prevent the ongoing use of these policies, procedures and practices at the MSOP facilities and actively participated in such conduct.
6. Inadequate Medical Treatment 169. Defendants do not provide adequate medical treatment to Plaintiffs and Class members. This deficient treatment has caused injury to the Plaintiffs and Class members. 170. MINNCOR is the exclusive provider of all over the counter and prescription medications at the MSOP, which may result in a delay in providing necessary medication to Plaintiffs and Class members, particularly if a prescription is ordered from a facility outside of the MSOP. 171. Defendants do not provide necessary insulin and other diabetic management care to the Plaintiffs and Class members with diabetes. Defendants do not seek professional medical assistance outside of MSOP Health Services for conditions like salmonella and hammer toes. The medical care provided for those conditions by MSOP Health Services has resulted in Plaintiffs and Class members suffering lasting negative effects. 172. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of the failures by Defendants to provide
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adequate medical treatment to Plaintiffs and Class members and did nothing to prevent this conduct from occurring and actively participated in such conduct.
7. Person al Property 173. Plaintiffs and Class members may no longer possess personal computers, laptop computers, and computer software or storage of any kind. Plaintiffs and Class members may not access printers, copiers, scanners, or the internet. This further isolates the Plaintiffs and Class members as they may not pursue online educational opportunities, engage with the outside world, or communicate with friends and family. 174. Plaintiffs and Class members are forced, at their own expense, to mail property that the MSOP deems contraband outside the facility or the property is destroyed. 175. If Plaintiffs and Class members possess property that is considered contraband, such as books and movies that are not on the approved media list, that property is confiscated. Plaintiffs and Class members may then submit a request to appeal the denial of their property, but such requests take the MSOP ten business days to handle. By the time that request has been processed, the property has been destroyed. Plaintiffs and Class members must submit at least two requests before they may file a grievance, which is well beyond the ten day period. The process to appeal the confiscation and destruction of property is not only overly burdensome, it is futile. 176. Plaintiffs’ and Class members’ personal computers were removed from the MSOP in 2008 after Defendant Benson started his tenure. A patient network was established with four computers per 96 patients to perform word-processing and other
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simple tasks. The MSOP seized all removable media such as floppy disks and CD-ROMs and have instructed Plaintiffs and Class members that they will have to print their electronic files instead of allowing them to save files on electronic media to send to courts, attorneys, or family. This restriction is very burdensome on Plaintiffs and Class members because their only storage space is in the three lockers under their bed.
177. Plaintiffs and Class members have been denied and restricted from using or accessing the internet even though no individual reasonable suspicion has ever been established to warrant the restriction. The MSOP also already possesses the commercial software necessary to monitor an Internet Server, which is currently in place for employees of the MSOP.
178. Completely preventing Plaintiffs and Class members from accessing the internet further isolates them from the world because they are not able to pursue online educational or employment opportunities or even communicate with friends and family via e-mail.
179. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of the policies preventing the possession of various personal property and internet usage by Plaintiffs and Class members and did nothing to change these policies or prevent this conduct from occurring and actively participated in such conduct.
8. Visitation 180. Patients use to be afforded liberal visitation policies, with visiting hours daily from 1-9 pm. Visitors were allowed to prepare food or order food to be delivered
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for consumption with patients. Contact between visitors and a patient was broadly permissible – hand holding, hugging, and holding children were all accepted. Visitors could drop off gifts and groceries on their visits with patients.
181. Currently, visitation is limited to Wednesdays through Sundays from 12:30 p.m. to 8:30 p.m. Visitors must now be pre-approved for visitation, submit to a criminal background check and submit to a pat search. Contact between Plaintiffs and Class members and a visitor is limited to one hug at the beginning and end of each visit. Smoking is not permitted during visitation and no food is allowed during visits. Plaintiffs and Class members are strip searched after visitation. MSOP routinely denies access to visitors and limits the size of a Plaintiffs’ and Class members’ visiting list as well as the number of visitors at one time.
182. The current visitation practices greatly discourage visitation and serve to further isolate Plaintiffs and Class members and hinder their therapeutic progress.
183. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of the policies relating to visitation and did nothing to change these policies or prevent this conduct from occurring and actively participated in such conduct.
9. Employme nt Options 184. Plaintiffs’ and Class members’ vocational work assignments are limited to menial labor. Plaintiffs and Class members must perform janitorial maintenance work on their living unit to progress in treatment or receive vocational placement. Many do not have access to facility jobs which would allow the Plaintiff or Class member to be more
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employable upon re-entering society such as plumbing, electrical, HVAC or any other vocational programs which would afford them meaningful job skills.
185. Regardless of a Plaintiff or Class member’s previous college degree or age, he must maintain certain educational qualifications to hold a vocational work assignment or advance in treatment.
186. The Legislative Auditor Report agrees with Plaintiffs’ assertions that employment and education opportunities at MSOP are lacking, finding that “there are limited work opportunities for clients” and that “[m]ost of Moose Lake clients’ time is unstructured.” Legislative Auditor Report at 65. Although the amount of time that a patient may work is limited by their progress in treatment, the upper limit of time working is 24 hours in a two week pay period. “Few, if any, clients are scheduled the maximum amount of work hours.” Id.
187. Vocational programming jobs at the MSOP pay minimum wage, however Plaintiffs and Class members are only given half that amount as wages by the MSOP. They are not provided an accounting of the remainder of their wages.
188. The need for employment opportunities is especially pressing given the fact that Plaintiffs and Class members are billed over $100,000 a year for their treatment. Those bills accrue until the Plaintiff or Class member is released from MSOP.
189. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of the policies and practices relating to employment options and did nothing to change these policies or practices or prevent this conduct from occurring and actively participated in such conduct.
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10. Inade quate Diet 190. The diet for Plaintiffs and Class members must provide, at a minimum, the Recommended Daily Dietary Allowances established by the National Academy of Sciences. In developing such menus, the MSOP must utilize the moderate cost food plan of the United States Department of Agriculture. 191. The MSOP cannot spend less per patient for raw food, including donated food, than the most recent per person costs of the Moderate Cost Food Plan for the Northern Region of the United States, as compiled by the United States Department of Agriculture, for appropriate grouping of residents, discounted for any savings which might result from institutional procurement of such food. 192. The MSOP food contractor CWF continually shortens meals or simply does not deliver what is on the menu. Meals are poorly prepared and in some cases handled without due care, which has led to illness. Food proportions are rationed out at a lesser degree then what the menu states due to the practice of equating food volume with weight. The food Defendants provide to Plaintiffs and Class members is of extremely poor quality and includes by-product meat and old fruits and vegetables. 193. In the event that extra food is available after a meal is served, MSOP disposes of the food instead of making it available to Plaintiffs and Class members. 194. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of the failure of MSOP to provide adequate food on a regular basis for Plaintiffs and Class members and did nothing to prevent or change this conduct from occurring.
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11. Communication and Media Restrictions 195. The MSOP charges Plaintiffs and Class members exorbitant rates for using telephones. Currently, Plaintiffs and Class members are charged approximately 32 to 39 cents a minute to use the phone. The MSOP phone system is the only phone system Plaintiffs and Class members are allowed to use. 196. Plaintiffs and Class members are not allowed to use 800 numbers to conduct business. Calling cards are prohibited. Plaintiffs and Class members are very limited in the number of phone calls they are allowed to make. 197. The extremely high rates Plaintiffs and Class members are charged serve no therapeutic or security purpose. 198. Defendants limit which magazines and newspapers the Plaintiffs and Class members can read. They also censor and remove certain articles and sections of the newspapers that are given to the Plaintiffs and Class members to read. 199. Defendants also have an unofficial policy of keeping Plaintiffs and Class members who have filed lawsuits against the MSOP or MSOP personnel separate from other Class members who have not filed lawsuits. 200. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of these practices and policies at the MSOP with regard to phone calls and limitations on media and did nothing to prevent or change this conduct from occurring.
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12. Religious Restrictions 201. Defendants monitor Plaintiffs and Class members when they speak to clergy and religious volunteers, even though they have been screened by MSOP staff upon entry to the facility. They also monitor Plaintiffs and Class members during religious services. 202. Defendants do not provide Plaintiffs and Class members Kosher or Halal meals. Plaintiffs and Class members cannot wear yarmulkes, kufis, or religious medallions and pendants unless they are in their cells or at a religious service. 203. Plaintiffs and Class members are only allowed five religious items in their personal property, and Defendants limit the types of religious items Plaintiffs and Class members may have. 204. Defendants only allow Plaintiffs and Class members to have religious feasts once a year, despite the fact that Plaintiffs and Class members have offered to pay for those feasts. 205. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of these practices and policies at the MSOP with regard to religious restrictions and did nothing to prevent or change this conduct from occurring. IV. Release from Civil Commitment to MSOP 206. The only way the Plaintiffs and Class members can be released from their civil commitment to the MSOP is through the statutory process for a reduction in custody.
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207. Petitions for a reduction in custody must be filed with and considered by a panel of the special review board (“SRB”). The MSOP gives the SRB documents from the Plaintiffs’ and Class members’ records including the commitment order and any appeals, all prior SRB or judicial appeal panel findings, and relevant treatment information such as quarterly and annual reviews.
208. The recommendation of the SRB must be sent to the judicial appeal panel, which is composed of three judges and four alternate judges selected from among all active state judges. Decisions made by the judicial appeal panel are appealable to the Minnesota Court of Appeals within 60 days of the panel’s decision. No reduction in custody occurs without a majority approval of the judicial appeal board.
209. Pursuant to Minn. Stat. § 253B.185, subd. 11b, factors that are considered by the judicial appeal panel when deciding if transfer out of the secure treatment center is appropriate are: (1) the patient’s clinical progress and present treatment needs, (2) how necessary a secure facility is for continuing treatment, (3) the need for continued institutionalization, (4) what facility will best meet the patient’s needs, and (5) whether the transfer can be done while still providing for public safety. An example of a transfer would be moving a patient from the secure MSOP facility in Moose Lake to the MSOP facility in St. Peter, where the later phases of the treatment program occur.
210. Pursuant to Minn. Stat. § 253B.185, subd. 12, the factors that are considered when deciding if provisional discharge is appropriate are: (1) whether the patient’s course of treatment and present mental status indicate there is no longer a need for treatment and supervision in the patient's current treatment setting, and (2) whether
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the conditions of the provisional discharge plan will provide a reasonable degree of protection to the public and will enable the patient to adjust successfully to the community.
211. Pursuant to Minn. Stat. § 253B.185, subd. 18, a patient is not completely discharged from MSOP unless “it appears to the satisfaction of the judicial appeal panel, after a hearing and recommendation by a majority of the SRB, that the patient is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.” The SRB and judicial appeals panel consider whether the public will be safe and whether the patient will be able to readjust to living in the community.
212. As of February 2012, only two MSOP patients had ever been placed on any kind of provisional discharge. One of them had his provisional discharge revoked after violating its conditions, and the other was only recently granted provisional discharge.
213. In contrast, as of 2006, the following other states with civil commitment programs had placed the following number of people on supervised or conditional release: Arizona- 69, Illinois- 18, Wisconsin- 17, Washington- 12, Florida- 12, Kansas- 8, New Jersey- 8, Iowa- 4, California- 3, and Virginia- 3. As of 2006, the following other states with civil commitment programs had fully discharged the following number of people: Arizona- 81, California- 59, South Carolina- 32, Wisconsin- 26, New Jersey- 13, Kansas-13, Iowa- 9, Florida- 7, Washington- 4, Massachusetts- 4, Illinois- 2, and Virginia- 1. Monica Davey and Abby Goodnough, Doubts Rise as States Hold Sex Offenders After Prison, N.Y. Times (March 4, 2007), available at
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http://www.nytimes.com/2007/03/04/us/04 civil.html?pagewanted=1&_r=1&adxnnlx= 1329498616-AcmZtJ1J58oxOsZDKbLw6Q (last visited Aug. 7, 2013).
214. MSOP clinicians believe Plaintiffs and Class members are not being released because of public pressure to keep civilly committed sex offenders in a secure facility. Legislative Auditor Report at 87. Additionally, Governor Pawlenty issued an executive order in 2003 stating that no sex offenders could be released without a court order. Thus, the decision not to release Plaintiffs and Class members from the MSOP is based on political considerations, not professional judgment.
215. There is no provision for Class members to by-pass the SRB and SCAP panels in petitioning for a reduction in custody.
216. Some Class members waited approximately 610 days from the time they filed a petition until the SRB even heard the petition. On average, it takes approximately 222 days between the date when a petition is filed and when it is even heard by the SRB.
217. As of June 30, 2014 there were approximately 63 petitions which were waiting for a SRB hearing date. These petitions were filed between July 3, 2013 and June 19, 2014.
218. As of June 30, 2014, there were approximately 105 petitions pending before the SRB and approximately 48 petitions pending before the SCAP.
219. There is no independent periodic review required under the statute or provided for by Defendants for Class members. The reviews provided by MSOP on a quarterly or annual basis do not take into consideration whether or not the individual
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satisfies the requirements for provisional or full discharge, nor do they provide a risk assessment of the committed individual.
220. Only when a petition for a reduction in custody is filed is an individual civilly committed under Minn. Stat. § 253D provided a risk assessment, which, at the SRB stage, is conducted by a risk assessor employed by the MSOP.
221. There are approximately 441 Class members who did not petition for a reduction in custody between January 1, 2010 and June 30, 2014, and therefore have not had a risk assessment to determine their current level of risk since at least January 1, 2010.
222. There is no requirement, policy or practice by Defendants to petition for reduction in custody for Class members who meet the statutory requirements for such a reduction in custody.
223. There is no requirement, policy or practice by Defendants to petition for the full discharge of Class members who are no longer dangerous and in need of treatment.
224. In fact, the MSOP has petitioned for a reduction in custody on behalf of MSOP patients only seven times (and all of those after the filing of the initial complaint in this matter). Six of those petitions were for transfer to a less restrictive alternative (a state-owned facility in Cambridge) and one was a petition for transfer to CPS. To date, none of those petitions have been ruled upon by the SCAP.
225. Defendants Jesson, Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of the policies and practices that were implemented that prevented Plaintiffs and Class members from being released and did
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nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct.
CLAIMS Count I Minnesota Statute § 253D is Unconstitutional on Its Face 226. Plaintiffs incorporate all previous allegations as if fully set forth herein. 227. The nature and duration of the civil commitment of Plaintiffs and Class members under Minn. Stat. § 253D on its face is not reasonably related or narrowly tailored to the purpose of commitment. 228. Minn. Stat. § 253D fails to require independent period reviews. Without such reviews, individuals may remain civilly committed after such a time that they no longer meet the criteria for commitment or after such a time that they satisfy the statutory requirements for reduction in custody or discharge. 229. Minn. Stat. § 253D fails to require the State to petition for a reduction in custody for committed individuals who meet the statutory requirements for such a reduction in custody. Without such a requirement, individuals may remain civilly committed after such a time that they no longer meet the criteria for commitment or after such a time that they satisfy the statutory requirements for reduction in custody. 230. Minn. Stat. § 253D fails to require the discharge of committed individuals who are no longer dangerous and/or no longer in need of inpatient treatment for a sexual disorder. Without such a requirement, individuals may remain civilly committed after
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such a time as they are no longer dangerous and/or no longer in need of inpatient treatment for a sexual disorder.
231. Minn. Stat. § 253D fails to provide for a judicial by-pass in the reduction in custody process. Without such a requirement, individuals may remain civilly committed after such a time as they are no longer dangerous and/or no longer in need of inpatient treatment for a sexual disorder, they no longer meet the criteria for commitment, or they satisfy the statutory requirements for reduction in custody.
232. Because of these deficiencies, the plain language of the statute renders Minn. Stat. § 253D unconstitutional on its face. Defendants’ implementation and enforcement of Minn. Stat. § 253D violates Plaintiffs’ and Class members’ constitutional rights.
233. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count II Minnesota Statute § 253D is Unconstitutional as Applied 234. Plaintiffs incorporate all previous allegations as if fully set forth herein. 235. A statute that violates constitutional rights when enforced is unconstitutional as applied to those whose rights are violated.
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236. Defendants are violating Plaintiffs’ and Class members’ constitutional rights through their enforcement of Minn. Stat. § 253D, under which all Plaintiffs and Class members are civilly committed to MSOP.
237. Non-criminal confinement must have a non-criminal purpose. The civil commitment statute mandates that during involuntary detention or commitment pursuant to Chapter 253BD the patient is entitled to all constitutionally required care and treatment. Plaintiffs and Class members are entitled to such treatment as will give them a realistic opportunity to meet the statutory requirements to be released from confinement, as determined by an appropriate mental health professional and that is within the scope of acceptable mental health treatment.
238. The nature and duration of the civil commitment of Plaintiffs and Class members under Minn. Stat. 253D as applied is not reasonably related or narrowly tailored to the purpose for commitment.
239. Defendants neither provide nor direct others to provide periodic independent reviews of Plaintiffs and Class members. Without such reviews, individuals may remain civilly committed after such a time that they no longer meet the criteria for commitment or after such a time that they satisfy the statutory requirements for reduction in custody.
240. Defendants neither provide nor direct others to provide regular internal reviews of Plaintiffs and Class members, which include forensic risk assessments. Without such reviews, individuals may remain civilly committed after such a time that
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they no longer meet the criteria for commitment or after such a time that they satisfy the statutory requirements for reduction in custody.
241. Defendants do not automatically, nor do they require others under their direction, to petition for a reduction in custody for committed individuals who meet the statutory requirements for such a reduction in custody. Without such a requirement, individuals may remain civilly committed after such a time that they no longer meet the criteria for commitment or after such a time that they satisfy the statutory requirements for reduction in custody.
242. Defendants do not automatically, nor do they require others under their direction, to petition for discharge of committed individuals who are no longer dangerous and/or no longer in need of inpatient treatment for a sexual disorder. Without such a requirement, individuals may remain civilly committed after such a time as they are no longer dangerous and/or no longer in need of inpatient treatment for a sexual disorder.
243. Defendants to not provide an assessment at the time the individual is first civilly committed to MSOP to determine what phase of the treatment program the individual should be placed in or whether the individual, in fact, should be committed to either the Moose Lake or St. Peter facilities, or whether they could be treated in a less restrictive environment.
244. Defendants do not provide a less restrictive alternative to confinement at a MSOP secure facility. Not all Plaintiffs and Class members have the same level of security needs, however, the MSOP as implemented does not account for this possibility.
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Also, if a Plaintiff or Class member no longer meets the statutory requirements for civil commitment, there is no less restrictive facility or program for them to enter.
245. Defendants are aware of individuals currently at MSOP’s secure facility that could be treated in a less restrictive environment. Defendants are not providing Plaintiffs and Class members with constitutionally adequate treatment or with treatment, best adapted according to contemporary professional standards, to render further supervision unnecessary.
246. Defendants have implemented policies and conditions of confinement which Class members are subject to that are punitive in nature, and therefore not reasonably related to the purpose of confinement.
247. Defendants have not implemented a process for reduction in custody that provides Plaintiffs or Class members with the required constitutional due process.
248. A petition for a reduction in custody can take up to, or perhaps longer than, 600 days to even be heard by the initial reviewing panel, and on average takes over 220 days for the petition to be heard. The average time for appeals to the SCAP is unknown, but inevitably delays the decision longer.
249. Ultimately no individual has ever been fully discharged from civil commitment under Minn. Stat. §253D.
250. The failure to release any Plaintiffs or Class members over the life of the MSOP program demonstrates that Minn. Stat. §253D, and the treatment program are being unconstitutionally applied a result of orders from political leaders and is not based on professional judgment.
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251. Defendants’ implementation of Minn. Stat. § 253D violates Plaintiffs’ and Class members’ constitutional rights to due process protections. Additionally, the application of Minn. Stat § 253D to Plaintiffs and Class members is punitive, not therapeutic, in nature, rendering it unconstitutional.
252. The acts and omissions of Defendants render Minn. Stat. § 253D unconstitutional as applied.
253. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count III Failure to Provide Treatment in Violation of the Fourteenth Amendment to the
United States Constitution and the Minnesota Constitution 254. Plaintiffs incorporate all previous allegations as if fully set forth herein. 255. The Fourteenth Amendment 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. Plaintiffs bring this Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983. 256. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed. Civilly committed persons may be subjected to liberty restrictions
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reasonably related to legitimate government objectives and that are not tantamount to punishment as determined by reasonable professional judgment. Confinement that continues after the person no longer meets the statutory requirements for commitment violates due process.
257. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members 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. Plaintiffs and Class members are not progressing through the treatment program and are instead remaining in the first two phases of treatment for years.
258. The acts and omissions of Defendants, specifically set forth above, constitute an unreasonable failure to provide Plaintiffs and Class members with treatment that is reasonably related to the purpose of their civil commitment and not tantamount to punishment in violation of clearly established rights under the Fourteenth Amendment to the United States Constitution and Article 1, Section 2 of the Minnesota Constitution.
259. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their official capacity, were each aware of the policies and practices that were implemented at MSOP that prevented Plaintiffs and Class member from receiving treatment and did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct.
260. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have
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been subject to and injured by these alleged violations as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above.
261. Unless relief is granted, Plaintiffs and Class members will continue to be injured by as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count IV Failure to Provide Treatment in Violation of the Minnesota Civil Commitment and
Treatment Act 262. Plaintiffs incorporate all previous allegations as if fully set forth herein. 263. The Minnesota Civil Commitment and Treatment Act requires civilly committed sex offenders to be committed to a secure treatment facility. The statute promises that patients will receive individualized written program plans to be reviewed quarterly, periodic medical treatment and the right to receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary. See Minn. Stat. §§ 253B.185, 253B.03, subd. 7. 264. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members 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. Plaintiffs and Class members are not progressing through the treatment program and are instead remaining in the first two phases of treatment for years.
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265. The acts and omissions of Defendants, specifically set forth above, constitute an unreasonable failure to provide Plaintiffs and Class members with the “proper care and treatment, best adapted, according to contemporary professional standards, to rendering future supervision unnecessary” in violation of clearly established rights Chapter 253B of the Minnesota Civil Commitment and Treatment Act.
266. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their official capacity, were each aware of the policies and practices that were implemented at MSOP that prevented Plaintiffs and Class member from receiving treatment and did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct
267. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above.
268. Unless relief is granted, Plaintiffs and Class members will continue to be injured by as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count V Denial of Right to be Free from Punishment in Violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution
269. Plaintiffs incorporate all previous allegations as if fully set forth herein.
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270. The Fourteenth Amendment 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. Plaintiffs bring this Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983.
271. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to punishment as determined by reasonable professional judgment.
272. Since 2008 when Defendant Benson became the Executive Director of MSOP, the program has changed drastically to become a punitive confinement facility.
273. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members are double bunked in wet cells in a facility modeled after a prison. Plaintiffs and Class members do not have a reasonable grievance procedure to use when they are punished with BERs because the hearing board is made up of MSOP employees and any appeals are heard by the MSOP facility director.
274. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members are punished by having their rights to access activities and areas of the facility limited or completely taken away or by being placed in protective isolation in the HSA.
275. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members are not allowed to possess certain property and the grievance procedure for confiscated property leaves Plaintiffs and Class members no
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reasonable way to challenge the confiscation because by the time their grievance is heard, the property will have been destroyed.
276. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members are denied access to group therapy.
277. Based on the policy and procedures created and implemented by Defendants, Plaintiffs’ and Class members’ furniture is removed as punishment for alleged rule violations.
278. Based on the policy and procedures created and implemented by Defendants, Defendants can punish Plaintiffs and Class members by taking away their employment options.
279. Based on the policy and procedures created and implemented by Defendants, they cause random searches of Plaintiffs’ and Class members’ persons, property, and cells. Plaintiffs and Class members are placed in shackles and black boxes anytime they leave the secure facility.
280. The punitive policies, procedures, and practices of Defendants are not reasonably related to the purpose for which Plaintiffs and Class members have been civilly committed, which is treatment. Denying Plaintiffs and Class members their liberty without a proper therapeutic purpose constitutes inherently punitive detention.
281. Defendants Jesson, Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of the policies and practices that were implemented at MSOP the purpose of which was to punish Plaintiffs and Class member rather than to treat them and yet they each did nothing to changes these policies and
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practices or to prevent this conduct from occurring and actively participated in such conduct.
282. The acts and omissions of Defendants constitute a deprivation of Plaintiffs’ and Class members’ clearly established constitutional right to be free from punishment in violation of Plaintiffs’ and Class members’ rights protected by the Fourteenth Amendment of the United States Constitution and Article 1, Section 2 of the Minnesota Constitution.
283. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count VI Denial of Less Restrictive Alternative Confinement in Violation of the Fourteenth
Amendment to the United States Constitution and the Minnesota Constitution 284. Plaintiffs incorporate all previous allegations as if fully set forth herein. 285. The Fourteenth Amendment 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. Plaintiffs bring this Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983.
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286. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed as determined by reasonable professional judgment.
287. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to punishment. Confinement that continues after the person no longer meets the statutory requirements for commitment violates due process.
288. The MSOP, as implemented, does not provide a less restrictive alternative to confinement at a MSOP secure facility. Therefore, it is not reasonably related to a legitimate government objective. Not all Plaintiffs and Class members have the same level of security needs, however, the MSOP as implemented does not account for this possibility. Also, if a Plaintiff or Class member no longer meets the statutory requirements for civil commitment, there is no less restrictive facility or program for them to enter. As such, the MSOP as implemented fails to satisfy the legitimate governmental objective of treating MSOP patients and preventing reoffending behavior.
289. Defendants Jesson, Benson, Johnston and Hébert, in their official capacity, each were aware of the ability for MSOP to establish less restrictive alternative treatment facilities yet they did nothing to establish such less restrictive alternative treatment facilities for Plaintiffs and Class members.
290. The acts and omissions of Defendants constitute a deprivation of Plaintiffs’ and Class members’ clearly established constitutional right to a less restrictive alternative
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placement in violation of their rights guaranteed under the Fourteenth Amendment to the United States Constitution and Article 1, Section 2 of the Minnesota Constitution.
291. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, , Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count VII Denial of Right to be Free from Inhumane Treatment in Violation of the Fourteenth
Amendment to the United States Constitution and the Minnesota Constitution 292. Plaintiffs incorporate all previous allegations as if fully set forth herein. 293. The Fourteenth Amendment 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. Plaintiffs bring this Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to punishment as determined by reasonable professional judgment. Confinement that continues after the person no longer meets the statutory requirements for commitment violates due process.
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294. Based on the policy and procedures created and implemented by Defendants, they subject Plaintiffs and Class members to inhumane treatment through the punitive and unnecessarily restrictive living conditions at the MSOP. Plaintiffs and Class members are double bunked in wet cells. They have their rights restricted for minor violations of MSOP facility rules. They receive inadequate meals. They are subject to arbitrary discipline and decision-making by MSOP staff. They are also subject to inadequate medical treatment that has resulted in injury to Plaintiffs and Class members.
295. The acts and omission of Defendants constitute deprivation of Plaintiffs’ and Class members’ clearly established constitutional right to be free from inhumane treatment in violation of their rights guaranteed under the First and Fourteenth Amendments to the United States Constitution and Article 1, Section 5 of the Minnesota Constitution.
296. Defendants Jesson, Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of the policies and practices that were implemented at MSOP that resulted in inhumane treatment Plaintiffs and Class member rather than to treat and yet they each did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct.
297. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted,
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Plaintiffs and Class members will continue to be injured as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count VIII Denial of the Right to Religion and Religious Freedom in Violation of the First and
Fourteenth Amendments to the United States Constitution 298. Plaintiffs incorporate all previous allegations as if fully set forth herein. 299. The Fourteenth Amendment 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. Plaintiffs bring these Fourteenth Amendment and First Amendment claims pursuant to 42 U.S.C. § 1983. 300. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to punishment as determined by reasonable professional judgment. 301. Civilly committed patients are entitled to some degree of protection under the First Amendment that is broader than that held by prisoners but less than what is held by members of free society. Policies or restrictions of First Amendment rights must be reasonably related to legitimate institutional and therapeutic interests. 302. Based on the policy and procedures created and implemented by Defendants, they are violating Plaintiffs’ and Class members’ rights to religious freedom through the MSOP’s policies, procedures and practices. Defendants cause Plaintiffs and
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Class members to be monitored when they are having private meetings with religious persons such as clergy members and during religious services. They do not permit Plaintiffs and Class members to wear religious apparel or possess certain religious property. Also, they do not allow Plaintiffs and Class members to communally celebrate their religious beliefs by having feasts.
303. These policies, procedures and practices are not related to a legitimate institutional or therapeutic interest of the Defendants.
304. The acts and omissions of Defendants constitute unreasonable restrictions on Plaintiffs’ and Class members’ clearly established rights to freedom of speech, expression, religion, privileges, and immunities guaranteed by the First and Fourteenth Amendments to the United States Constitution.
305. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of the policies and practices that resulted in the unreasonable restrictions on Plaintiffs’ and Class members’ right to speech, expression, and religion, and yet they each did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct
306. Plaintiffs Bolte, Braun, Daywitt, Hausfeld and Class members have been subject to and injured by these alleged violations as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
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Count IX Unreasonable Restriction of Free Speech and Free Association in Violation of the First Amendment to the United States Constitution and the Minnesota Constitution
307. Plaintiffs incorporate all previous allegations as if fully set forth herein. 308. Civilly committed patients are entitled to some degree of protection under the First Amendment that is broader than that held by prisoners but less than what is held by members of free society. Policies or restrictions of First Amendment rights must be reasonably related to legitimate institutional and therapeutic interests as determined by reasonable professional judgment. Plaintiffs bring this First Amendment claim pursuant to 42 U.S.C. § 1983. 309. Based on the policy and procedures created and implemented by Defendants, they have place restrictions on free association by limiting contact among Plaintiffs and Class members, as well as other patients. 310. Based on the policy and procedures created and implemented by Defendants, they have limited the ability of Plaintiffs and Class members to use the phone by charging a prohibitively high amount for phone use. Also, Plaintiffs and Class members are not able to call 800 numbers or use calling cards. 311. Based on the policy and procedures created and implemented by Defendants, they have limited Plaintiffs’ and Class members’ access to certain newspapers and magazines and remove or censor articles from the newspapers and magazines that are provided.
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312. These policies, procedures and practices are not related to a legitimate institutional or therapeutic interest of the Defendants.
313. The acts and omissions of Defendants constitute an unreasonable restriction on Plaintiffs’ and Class members’ clearly established rights to freedom of speech, expression, religion, privileges, and immunities guaranteed by the First Amendment of the United States Constitution and Article 1, Section 2 of the Minnesota Constitution.
314. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of the policies and practices that resulted in the unreasonable restrictions on Plaintiffs’ and Class members’ right to speech, expression, and religion, and yet they each did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct
315. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count X Unreasonable Searches and Seizures in Violation of the Fourth Amendment to the
United States Constitution and the Minnesota Constitution 316. Plaintiffs incorporate all previous allegations as if fully set forth herein.
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317. Under the Fourth Amendment, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” In an institutional setting, the need for the search must be balanced against the invasion of personal rights that the search entails. Plaintiffs bring this Fourth Amendment claim pursuant to 42 U.S.C. § 1983.
318. Defendants consistently violated Plaintiffs’ and Class members’ Fourth Amendment Rights through their search policies, procedures and practices.
319. As part of their practices and policies, Defendants conduct random cell searches without any probable cause or purpose. They perform “window checks” daily on the pretext that they need to make sure Plaintiffs and Class members are not going to escape through the five inch wide windows.
320. As part of their practices and policies, Defendants cause strip searches to be conducted on Plaintiffs and Class members every time they leave the secure perimeter even though Plaintiffs and Class members are always accompanied by MSOP staff.
321. As part of their practices and policies, Defendants cause random pat downs of Plaintiffs and Class members without any probable cause or purpose.
322. These search policies, procedures and practices unnecessarily invade the personal rights of Plaintiffs and Class members.
323. The acts and omissions of Defendants constitute unreasonable searches and seizures in violation of Plaintiffs’ and Class members’ clearly established rights guaranteed by the Fourth Amendment of the United States Constitution and Article 1, Section 10 of the Minnesota Constitution.
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324. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their official capacity, were each aware of the policies and practices that resulted in the unreasonable search and seizures against Plaintiffs and Class members and yet they each did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct.
325. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count XI Violation of Court Ordered Treatment 326. Plaintiffs incorporate all previous allegations as if fully set forth herein. 327. Civil commitment to the MSOP occurs after a judicial proceeding. When a judge ruled the Plaintiffs and Class members were SPP or SDP under Minn. Stat. § 253B, that is a determination that they must enter a secure treatment facility. Therefore, the court has ordered that Plaintiffs and Class members receive proper sex offender treatment. 328. Plaintiffs and Class members are not receiving adequate treatment. 329. Plaintiffs and Class members spend no more than six or seven hours per week in treatment, their treatment plans are not detailed and individualized, the treatment
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staff is not qualified to treat sex offenders, and staffing levels are often far too low. Plaintiffs and Class members are not progressing through the treatment program and are instead getting stuck in the first two phases of treatment.
330. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their official capacity, were each aware of the policies and practices that were implemented at MSOP that prevented Plaintiffs and Class member from receiving treatment and did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct.
331. The acts and omissions of Defendants constitute a failure to satisfy court ordered treatment to Plaintiffs and Class members.
332. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count XII Breach of Contract by Defendants Jesson, Benson, Moser, Lundquist, Johnston, and
Hébert 333. Plaintiffs incorporate all previous allegations as if fully set forth herein. 334. Defendants’ failure to provide Plaintiffs and Class members the treatment contracted for in the Consent for Participation in Sex Offender Treatment form
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constitutes a breach of contract. Plaintiffs and Class members have been injured as a direct and proximate result of Defendants’ breach because they have not been provided adequate treatment and have been restrained indefinitely in the MSOP program.
335. MSOP has breached its contract to provide treatment to the Plaintiffs and Class members who signed the form consenting to sex offender treatment. The type and amount of treatment provided and the staff that provides that treatment falls well below constitutional standards, well below contact standards and well below the reasonable performance of the treatment program created by MSOP’s own policies.
336. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their official capacity, were each aware that each Plaintiff and Class member entered into a contract for treatment at the time they were civilly committed to MSOP.
337. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their official capacity, were aware of the failure to progress Plaintiffs and Class members through the different treatment phases to the point that they could be conditionally or unconditionally released.
338. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their official capacity, actively participated in and supported the inadequate treatment policies as implemented by MSOP, which resulted in the failure to comply with contract to provide treatment by MSOP.
339. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their official capacity, were aware that the MSOP treatment program as implemented had
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only conditionally released a single person and had never unconditionally released anyone committed to MSOP.
340. Yet Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their official capacity, each failed to take action to change the inadequate treatment policies and practices at MSOP and, in fact, endorsed the use of the policies and practices by MSOP employees.
341. The acts and omissions of Defendants constitute a breach of contract. 342. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and class members will continue to be injured as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count XIII Tortious Interference with Contract and Intentional Violation of Minn. Stat.
§253B.03, subd. 7 by Defendants Jesson, Benson, Moser, Lundquist, Johnston, and Hébert
343. Plaintiffs incorporate all previous allegations as if fully set forth herein. 344. Upon commitment, each patient must sign a document entitled “Consent for Participation in Sex Offender Treatment.” Patients can either sign the portion of the contract saying they consent to sex offender treatment or the portion that says they refuse to participate in treatment. The patient’s Clinical Team Therapist then signs the contract as well.
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345. The contract provides that the patient’s therapist has discussed the course of treatment at the MSOP, that the patient received information about the levels of care and stages of treatment, that the patient has received the goals and behavioral expectations at the MSOP, that upon completion of treatment the MSOP will support their petition for provisional discharge, that each stage of treatment has specific goals and behavioral expectations, that services such as education and vocation are provided, that failure to participate in treatment may prolong civil commitment status, that they will need to reveal information about past crimes, and that treatment officials must report any previously unreported child or vulnerable adult victims they learn of from the patient.
346. Additionally, Minn. Stat. §253B.03, subd. 7 state that “A person receiving services under this chapter has the right to receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary.”
347. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their official capacity, were each aware that each Plaintiff and Class member entered into a contract for treatment at the time they were civilly committed to MSOP and that a person committed to MSOP has the right to receive proper care and treatment, best adapted, according to contemporary professional standards, to render further supervision unnecessary.
348. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their official capacity, were aware of the failure to progress Plaintiffs and Class members
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through the different treatment phases to the point that they could be conditionally or unconditionally released.
349. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their official capacity, actively participated in and supported the inadequate treatment policies as implemented by MSOP, which resulted in the failure to comply with contract to provide treatment by MSOP and an intentional violation of the requirements under Minn. Stat. §253B.03, subd. 7.
350. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their official capacity, were aware that the MSOP treatment program as implemented had only conditionally released a single person and had never unconditionally released anyone committed to MSOP.
351. Yet Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their official capacity, each failed to take action to change the inadequate treatment policies and practices at MSOP described above, and, in fact, endorsed the use of the policies and practices by MSOP employees.
352. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and class members will continue to be injured as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for relief as follows: a. That the Court determine that this action may be maintained as a class action under Rules 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure, that Plaintiffs be certified as class representative and Plaintiffs’ counsel be appointed as counsel for the Class; b. That the unlawful conduct alleged herein be declared to be illegal and in violation of the federal and state constitutional, statutory and common law claims alleged herein; c. That the Court order Defendants to provide proper treatment, appropriate less restrictive alternatives, and in general operate the MSOP without an improper purpose of punishment; d. That Defendants be enjoined from engaging in the same or similar practices alleged herein; e. That Minn. Stat. § 253B be declared unconstitutional; f. That Plaintiff and Class members recover their costs of the suit, attorneys’ fees and expenses as allowed by law; and g. All other relief allowed by law and equity.
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DEMAND FOR JURY TRIAL Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a trial by jury on all issues so triable.

Dated: October 28, 2014

s/Daniel E. Gustafson Daniel E. Gustafson (#202241) Karla M. Gluek (#238399) David A. Goodwin (#386715) Raina C. Borrelli (#392127) Gustafson Gluek PLLC Canadian Pacific Plaza 120 South Sixth Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 333-8844 Fax: (612) 339-6622
Attorneys for Plaintiffs

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 Karsjens et al v. Minnesota Department of Human Services et al

Doc. 427

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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)
MEMORANDUM OPINION AND ORDER

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.

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

Dockets.Justia.com

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 SPP2 or SDP3

1

The Court’s concluding remarks may also be found below. See infra Conclusion.

2

The “Minnesota Commitment and Treatment Act: Sexually Dangerous Persons

and Sexual Psychopathic Personalities” defines a sexual psychopathic personality

(“SPP”) as:

the existence in any person of such conditions of emotional instability, or

impulsiveness of behavior, or lack of customary standards of good

judgment, or failure to appreciate the consequences of personal acts, or a

combination of any of these conditions, which render the person

irresponsible for personal conduct with respect to sexual matters, if the

person has evidenced, by a habitual course of misconduct in sexual matters,

an utter lack of power to control the person’s sexual impulses and, as a

result, is dangerous to other persons.

Minn. Stat. § 253D.02, subd. 15 (formerly Minn. Stat. § 253B.02, subd. 18b).

3

The “Minnesota Commitment and Treatment Act: Sexually Dangerous Persons

and Sexual Psychopathic Personalities” defines a sexually dangerous person (“SDP”) as:

a person who: (1) has engaged in a course of harmful sexual conduct as

defined in subdivision 8; (2) has manifested a sexual, personality, or other

(Footnote Continued on Next Page)

2

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.)
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

(Footnote Continued From Previous Page)

mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 8. Minn. Stat. § 253D.02, subd. 16 (formerly Minn. Stat. § 253B.02, subd. 18c).

4

Relying on the Legislative Auditor’s Report, Plaintiffs’ Complaint alleges:

The population of people civilly committed to the MSOP has grown

dramatically since the program was started. In 1990, there were fewer than

thirty patients civilly committed as sex offenders. Legislative Auditor

Report at 4. That number grew to 149 in 2000 and to 575 in 2010. Id. The

Legislative Auditor Report projected that in 2020, there will be 1109 people

civilly committed to the MSOP based on the current growth trend in

commitments. Id.

(Second Am. Compl. ¶ 65 (citation formatting added).) According to Defendants,

“MSOP currently has 698 clients . . . .” (Doc. No. 385, Hébert Aff. ¶ 5.)

5

Throughout this opinion, the Court refers to Plaintiffs’ Second Amended

Complaint (Doc. No. 301) as the “Complaint.”

3

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

6

The OLA Report further stated:

From 1990 to 2000, Minnesota’s population of civilly committed offenders

grew from less than 30 to 149. As of January 1, 2011, the number has

grown to 656, including 605 at DHS facilities and 51 at Minnesota

correctional facilities. In 2010, Minnesota had more civilly committed sex

offenders than every state except California and Florida. In addition,

Minnesota had by far the largest number of civilly committed sex offenders

per capita in the country. Current projections indicate that, under current

policies, significant growth is likely in the future. According to DHS, the

number of civilly committed sex offenders at DHS facilities is expected to

nearly double between 2010 and 2020.

(Footnote Continued on Next Page)

4

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 sex offender has ever been discharged from MSOP”9 (id.).

(Footnote Continued From Previous Page)

(OLA Report at 1; see also Second Am. Compl. ¶ 65 (citing OLA Report at 4).)

7 According to the OLA Report, the “annual cost per resident in MSOP is $120,000,” which is “at least three times the cost of incarcerating an inmate at a Minnesota correctional facility.” (OLA Report at x.)

8

In that regard, the OLA Report found, among other things, that:

Outside advocates and experts, MSOP clients, and some MSOP staff have

complained that, historically and currently: (1) some MSOP staff held

disrespectful, negative, punitive, and untherapeutic attitudes towards

clients; and (2) that the culture at the facilities was counter-therapeutic. In

our review of the records of clients who had been in the program for at least

four years, we found evidence that clients were sometimes treated with

suspicion, their reasonable frustrations were considered treatment problems,

and they were sometimes punished for behavior that appeared to be normal.

Under some past MSOP administrations, the program focused so much on

client behaviors that any infraction could result in a client failing to

progress or being sent backwards in treatment. The program still struggles

with staff who are overly suspicious of clients or who expect impossible

perfection. This can make progress in treatment difficult.

(OLA Report at 66.)

9

The OLA Report also noted that: “Minnesota has a release standard for offenders

who are civilly committed that, in practice, is stricter than other states. MSOP does not

(Footnote Continued on Next Page)

5

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 https://edocs.dhs.state.mn.us/lfserver/Public/DHS-6641B-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
(Footnote Continued From Previous Page) support any discharges without completion of the treatment program. Most states explicitly allow for discharges if an offender no longer meets the commitment criteria.” (OLA Report at xii.)
6

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
10 During the 2013 legislative session, Senator Kathy Sheran introduced a bill, Senate File 1014, which included some provisions that would have implemented initial Task Force recommendations. SF 1014, 88th Leg., 2d Engrossment (Minn. 2013-2014), available at https://www.revisor.mn.gov/bills/text.php?number=SF1014&version=2&session=ls88&s ession_year=2013&session_number=0; (see Jesson Aff. ¶¶ 9-10.) While the bill passed the full Senate on May 14, 2013, with bipartisan support, the bill did not become law because the companion bill in the House of Representatives (House File 1139), authored by Representative Tina Liebling, did not pass the full House. (See Jesson Aff. ¶ 10); SF 1014 Status in the Senate for the 88th Legislature (2013-2014), Minn. State Leg., https://www.revisor.mn.gov/bills/bill.php?b=senate&f=SF1014&ssn=0&y=2013.
7

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
11 Commissioner Jesson announced that she would recommend that the Supreme Court Appeals Panel (“SCAP”) approve the transfer of six individuals with intellectual disabilities from MSOP’s Moose Lake facility to the Minnesota Specialty Health System facility in Cambridge, Minnesota. See Rupa Shenoy, Some Sex Offenders Could Go to Less Secure Setting, MPR News (Sept. 12, 2013), http://www.mprnews.org/story/2013/09/12/sex-offenders-could-go-to-less-secure-setting; see also Brad Schrade, State Seeks to Move Some Sex Offenders to Less Secure Setting, Star Trib. (Sept. 12, 2013), http://www.startribune.com/local/223495201.html (“Minnesota’s sex-offender treatment program plans to move as many as a dozen low-functioning and ailing offenders from its high-security treatment campuses to a lower-security facility in Cambridge next year if the state receives court approval.”).
8

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 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
9

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 Hébert; and (13) Tortious Interference with Contract and Intentional Violation of Minn. Stat. § 253B.03, subd. 7 by Defendants Jesson, Benson, Moser, Lundquist, Johnston, and Hébert. (Second Am. Compl. ¶¶ 211-325.)
Defendants now move to dismiss, and Plaintiffs seek various forms of injunctive and declaratory relief.
DISCUSSION 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.)
10

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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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 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 (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.
11

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
12

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 (1990) (internal quotation
omitted); see also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845 (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
12 Regarding the conditions of their confinement, Plaintiffs allege that, in 1994, “MSOP was operating in a hospital setting. Patients had individual rooms with their own mattress, bed, dresser, desk, and storage. Private bathrooms were available and toilets were not in the rooms. Patients were not locked in their rooms. . . .” (Second Am. Compl. ¶ 140.) Plaintiffs contend, however, that conditions changed and that, presently:
[t]he MSOP facility at Moose Lake is laid out exactly like state prisons with cell units facing into a central courtyard where Plaintiffs and Class members may be observed from one central station. MSOP staff wears police-style uniforms. The newly designed and constructed living unit, Complex One, is designed just like a correctional facility. (Id. ¶ 137.) Plaintiffs further allege that they “are double bunked in 9.5 x 15 ft. wet cells consisting of two metal bed frames with springless mattresses that are only 30 inches apart, small stainless steel desks, and a stainless steel toilet/sink combination unit fixed into the cell.” (Id. ¶ 143.) Additionally, Plaintiffs describe that: “[c]ell doors are metal and only have a small viewing window. The two windows in each cell are only five inches wide. The only privacy when using the toilet is a movable screen.” (Id. ¶ 144.) Plaintiffs claim that they “are locked in [their] cells every day from at least 9:45 p.m. until 6:25 a.m.” (Id. ¶ 145.)
13

confinement. See Jones v. United States, 463 U.S. 354, 361 (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 (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
13 Sacramento v. Lewis distinguishes between the substantive due process standard applied to “abusive executive action” directed at an individual, such as the use of excessive force, and the standard applied to legislation that systematically impinges on a fundamental right. Compare Lewis, 523 U.S. at 847 n.8 (“[I]n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”), with Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (“[T]he Fourteenth Amendment forbids the government to infringe fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”) (internal quotation omitted) (emphasis in original).
In this case, there may be particular actions of the executive (such as the administration of treatment) that may ultimately be analyzed under the “shocks the conscience” standard. See infra Part I.B.2 (Failure to Provide Treatment Claims). Whether the strict scrutiny or the “shocks the conscience” standard applies to a particular claim, however, an allegation of the denial of substantive due process “is to be tested by an appraisal of the totality of facts in a given case.” Lewis, 523 U.S. at 850; see also id. (“[O]ur concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.”).
14

‘narrowly tailored to serve a compelling state interest’”) (quoting Reno v. Flores, 507 U.S. 292, 302 (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 (1997) (Kennedy, J., concurring) (citing Addington v. Texas, 441 U.S. 418, 426-27 (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, 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 (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 (2002) (distinguishing “a dangerous sexual offender subject to civil commitment
15

‘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 (1992); Jackson v. Indiana, 406 U.S. 715, 738 (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. 15 & 16 (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
14 Defendants acknowledge their obligation under Minnesota law “to maintain a therapeutic environment.” (Doc. No. 376 at 29 (quoting Minn. Stat. § 253D.19, subd. 1 (formerly Minn. Stat. § 253B.185, subd. 7(a))).)
16

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 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 (1975)). “Even if
the initial commitment was permissible,” a civil commitment may not “constitutionally
15 Discussing its previous holding in Jones, the Supreme Court stated in Foucha: We held, however, that “(t)he committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous,” id., at 368, 103 S. Ct., at 3052; i.e., the acquittee may be held as long as he is both mentally ill and dangerous, but no longer. We relied on O’Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L.Ed.2d 396 (1975), which held as a matter of due process that it was unconstitutional for a State to continue to confine a harmless, mentally ill person. Even if the initial commitment was permissible, “it could not constitutionally continue after that basis no longer existed.” Id., at 575, 95 S. Ct., at 2493. In the summary of our holdings in our opinion we stated that “the Constitution permits the Government, on the basis of the insanity judgment, to confine him 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 368, 370, 103 S. Ct., at 3052, 3053. The court below was in error in characterizing the above language from Jones as merely an interpretation of the pertinent statutory law in the District of Columbia and as having no constitutional significance. In this case, Louisiana does not contend that Foucha was mentally ill at the time of the trial court’s hearing. Thus, the basis for holding Foucha in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis. O’Connor, supra, 422 U.S., at 574-575, 95 S. Ct., at 2493-2494.
Foucha, 504 U.S. at 77-78 (footnote omitted).
16 The Court notes that the term “harmless” may have little to no practical significance to treatment professionals tasked with evaluating whether a sex offender “is no longer a danger to himself or society.” See Foucha, 504 U.S. at 77 (explaining that a “committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous”).
17

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 (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
17 Plaintiffs in this case “challenge the constitutionality of the relevant statutes based on a repeated course of conduct over years for an entire class of individuals, not just their application to a single individual” as well as “the systemic failure of the legislative, executive and judicial branches of the State to rectify the continued deficiencies with the program and to protect the rights of Plaintiffs.” (Doc. No. 389 at 16.)
18

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 to an as-applied18 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
18 Justice Thomas, in his concurrence, questioned whether the claim at issue, wherein a committed sex offender “essentially contend[ed] that the actual conditions of confinement, notwithstanding the text of the statute, are punitive and incompatible with the Act’s treatment purpose” constituted a veritable “as-applied” challenge. Seling, 531 U.S. at 271 (Thomas, J., concurring). Justice Thomas further stated:
The majority adopts the Ninth Circuit’s nomenclature and refers to respondent’s claim as an “as-applied” challenge, but that label is at best misleading. Typically an “as-applied” challenge is a claim that a statute, “by its own terms, infringes constitutional freedoms in the circumstances of a particular case.” In contrast, respondent’s claim is not that [the Act] “by its own terms” is unconstitutional as applied to him, but rather that the statute is not being applied according to its terms at all. Id. (citations omitted) (emphasis in original); see id. at 264 (majority opinion).
19 The Court acknowledged, however, that: The particular features of confinement may affect how a confinement scheme is evaluated to determine whether it is civil rather than punitive, but (Footnote Continued on Next Page)
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
(Footnote Continued From Previous Page) it remains no less true that the query must be answered definitively. The civil nature of a confinement scheme cannot be altered based merely on vagaries in the implementation of the authorizing statute.
Seling, 531 U.S. at 263.
20

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 59.
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 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
20 Plaintiffs’ Complaint contains the following allegations, among others, with respect to treatment:
The MSOP treatment program is broken out into three phases. In Phase I, patients must learn how to comply with the MSOP facility’s rules and learn basic treatment concepts. No sex offender-specific treatment whatsoever is provided in Phase I. In Phase II, patients must discuss and work through their sexual offenses and patterns of sexual abuse. In Phase III, which takes place at the St. Peter facility, the program focuses on community reintegration. This third phase consists of MSOP Supervised Integration, in which patients live in a secure area within the St. Peter Facility. Patients may take accompanied outings off campus, and Community Preparation Services, in which patients live on campus in a house that is not within the secure perimeter. Throughout Phase III, patients are electronically monitored. . . .
The MSOP treatment program was designed to be completed within four years. As of January 1, 2012, 64% of MSOP patients were in Phase I, 24% were in Phase II, and 12% were in Phase III. As no sex offenderspecific treatment is provided for Phase I patients, the majority of MSOP patients are not provided any sex offender specific treatment at all.
(Footnote Continued on Next Page)
21

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.)
(Footnote Continued From Previous Page)
Additionally, 75% of MSOP patients have been civilly committed to the MSOP for between three years and ten years or more. It was not until February of 2012 that the first patient in the history of the MSOP was deemed to have completed the treatment program, after commitment to the program for more than 18 years, and be ready for provisional discharge. That patient is required to attend regular therapy as a provision of his discharge. . . .
The Legislative Auditor Report found that one factor that may explain why there has never been a discharge from the program is that “problems in the treatment program over the last ten years have likely affected the progress of some sex offenders.” Legislative Auditor Report at xxi. . . .
The Legislative Auditor Report also found that patients get stuck in Phase I of the program, which focuses on following rules and learning how to participate in treatment groups rather than addressing the patient’s sexual offenses or how to prevent re-offending. This may be because the MSOP does not promote “positive treatment participation.” Legislative Auditor Report at 64. (Second. Am. Compl. ¶¶ 75, 78, 84-85.)
21 The OLA Report noted that “[t]he amount of treatment delivered at MSOP facilities is lower than at any other adult inpatient sex offender treatment program in the state.” (OLA Report at 62.) Specifically, the OLA Report stated that the “six hours of group therapy per week” plus between one-and-a-half and two hours of “additional psychoeducational modules” provided at MSOP is less than the treatment provided at both the Department of Corrections Sex Offender Treatment Program and Alpha Human
(Footnote Continued on Next Page)
22

Rather than progressing through the phases of treatment, Plaintiffs allegedly remain “in the 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” standard22 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
(Footnote Continued From Previous Page) Services, which provide treatment averaging twelve hours per week and twenty-one hours per week, respectively. (Id. at 62-63.) In Kansas v. Hendricks, the State represented to the Supreme Court that individuals committed under the Act at issue in that case were “receiving in the neighborhood of ‘31- 1/2 hours of treatment per week.’” Hendricks, 521 U.S. at 368. 22 In Youngberg, the Supreme Court held that under the Fourteenth Amendment, “civilly committed individuals ‘enjoy constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests.’” Strutton, 668 F.3d at 557 (quoting Youngberg v. Romeo, 457 U.S. 307, 324 (1982)).
23

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
23 See, e.g., Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir. 2000) (holding that “the Fourteenth Amendment Due Process Clause requires states to provide civilly-committed persons with access to mental health treatment that gives them a realistic opportunity to be cured and released”) (citing Ohlinger v. Watson, 652 F.2d 775, 778 (9th Cir. 1980)).
While allegations pertaining to Plaintiffs’ constitutional and statutory rights to treatment pervade the Complaint, the Court in no way implies that constitutionally adequate treatment requires that an individual actually be “cured” of his “mental disease or mental abnormality” or other psychological condition. But see Foucha, 504 U.S. at 77 (requiring release when a committed individual “has recovered his sanity or is no longer dangerous”).
24

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 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 F.2d at 1154 n.4 (internal quotation omitted).
While the Court need not decide the applicable standard for Plaintiffs’ right to treatment claims (or whether a fundamental right is implicated here) at this juncture, the Court concludes that, regardless of the applicable standard, at this early stage of the proceedings, Plaintiffs have, at a minimum, alleged sufficient facts to survive a motion to dismiss. See, e.g., United States v. Salerno, 481 U.S. 739, 746 (1987) (“So-called ‘substantive due process’ prevents the government from engaging in conduct that ‘shocks the conscience,’ . . . or interferes with rights ‘implicit in the concept of ordered liberty.’”) (quoting Rochin v. California, 342 U.S. 165, 172 (1952) and Palko v. Connecticut, 302 U.S. 319, 325-26 (1937)). Even assuming, without deciding, that the Strutton “shocks the conscience” standard applies to Plaintiffs’ right to treatment claims, when taken together with the allegations regarding the punitive nature of confinement and the lack of meaningful opportunity for release, Plaintiffs have, at a minimum, raised a serious question as to whether state action with respect to the class members committed to MSOP is “truly egregious and extraordinary.” See Strutton, 668 F.3d at 557.
25

Indeed, when taken together, and if proven true, a fact-finder may very well conclude that the conditions of Plaintiffs’ confinement, including the deficiencies in treatment, rise to the level of “shocking the conscience.” See Moran v. Clarke, 296 F.3d 638, 643 (8th Cir. 2002) (“Whether a substantive due process right exists is a question of law. . . . However, subject to certain presumptions, whether the plaintiff has presented sufficient evidence to support a claimed violation of a substantive due process right is a question for the fact-finder, here the jury.”). As such, at this early stage, the Court finds that Count I states a valid due process claim for failure to provide treatment.
To the extent Plaintiffs assert that any inadequate treatment or failure to treat amounts to a violation of Minnesota statute or court order in Counts II and XI, Plaintiffs’ claims also survive dismissal for similar reasons.
Count II alleges a state law violation of the right to treatment. Specifically, Plaintiffs contend that Defendants have unreasonably failed to provide the class members with “proper care and treatment, best adapted, according to contemporary professional standards, to rendering future supervision unnecessary” in contravention of the Minnesota Commitment and Treatment Act. (Second Am. Compl. ¶ 222 (quoting Minn. Stat. § 253B.03, subd. 7).)24
24 Count II of the Complaint further states: The Minnesota Civil Commitment and Treatment Act requires civilly committed sex offenders to be committed to a secure treatment facility. The statute promises that patients will receive individualized written program plans to be reviewed quarterly, periodic medical treatment and the right to receive proper care and treatment, best adapted, according to (Footnote Continued on Next Page)
26

The Minnesota Commitment and Treatment Act guarantees civilly committed individuals a right to treatment consistent with contemporary professional standards. See Minn. Stat. § 253B.03, subd. 7 (“A person receiving services under this chapter has the right to receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary.”). Plaintiffs have undoubtedly raised a question of whether the treatment provided to them at MSOP satisfies the standard mandated by statute.25
Similarly, Count XI asserts that Plaintiffs “are not receiving adequate treatment,” contrary to the judicial determination that, as SPPs or SDPs, they “must enter a secure treatment facility” for the purpose of receiving “proper sex offender treatment.” (See Second Am. Compl. ¶¶ 300-01.)
While Count I is framed as a substantive due process claim, Counts II and XI expand upon Plaintiffs’ underlying right to treatment claim. Plaintiffs support all three claims with the same fundamental factual allegations. With respect to those counts, the Complaint essentially alleges a pervasive denial of proper treatment at MSOP—that what
(Footnote Continued From Previous Page) contemporary professional standards, to rendering further supervision unnecessary. See Minn. Stat. §§ 253B.185, 253B.03, subd. 7.
(Second Am. Compl. ¶ 220 (citation formatting added).) 25 The Court notes that the right to treatment claim in Strutton invoked a slightly different statutory mandate. See Strutton, 668 F.3d at 557 (“Strutton’s due process claim originates from the state statutory mandate to provide for Strutton’s confinement ‘for control, care and treatment until such time as [his] mental abnormality has so changed that [he] is safe to be at large.’”) (quoting Mo. Rev. Stat. § 632.495(2)).
27

purports to be “treatment” by Defendants is, for all intents and purposes, a sham. Plaintiffs allege that such a systemic failure is not only inconsistent with due process, but is also contrary to statutory standards (and corresponding judicial orders) governing civil commitment. Noting the concerns raised by the OLA Report, as well as the MPET Report and the Task Force recommendations, and taking the allegations in the Complaint as true for purposes of the motion to dismiss, at a minimum, Plaintiffs have stated plausible claims pertaining to inadequate treatment. As such, Counts I, II, and XI survive dismissal, and the class members must be provided the opportunity to offer evidentiary support for those claims.
3. Equal Protection Claim In Count X, Plaintiffs assert that the sex offender commitment statutes, as applied, violate the Equal Protection Clause of the Fourteenth Amendment. (Second Am. Compl. ¶¶ 292-98.) Specifically, Plaintiffs claim that “significant geographic variations in petition and commitment rates across the state” demonstrate that similarly situated individuals are treated differently, without a rational basis for such disparate treatment. (See id. ¶¶ 296-97; see also OLA Report at xi (“Among Minnesota’s judicial districts, commitment rates vary significantly, with the percentage of referred offenders being committed varying from 34 to 67 percent.”).) To state an actionable equal protection claim, Plaintiffs must allege facts to show that they have been treated differently from similarly situated individuals. See Bogren v. Minnesota, 236 F.3d 399, 408 (8th Cir. 2000); Klinger v. Dep’t of Corr., 31 F.3d 727, 731 (8th Cir. 1994) (stating that to sustain an equal protection claim, a plaintiff must
28

show that he belongs to a group that had been treated less favorably than others who are “similarly situated”); see also Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 815 (8th Cir. 2008) (“In order to establish such an equal protection claim, a prisoner must show that he is treated differently from similarly-situated inmates and that the different treatment is based upon either a suspect classification or a ‘fundamental right.’”); Beaulieu v. Ludeman, Civ. No. 07-1535, 2008 WL 2498241, at *12 (D. Minn. June 18, 2008) (“Absent a threshold showing that plaintiffs are similarly situated to those who allegedly receive favorable treatment, plaintiffs do not have a viable equal protection claim.”).
If the parties are similarly situated, and the alleged action infringes a fundamental right, strict scrutiny applies. See, e.g., Gavin v. Branstad, 122 F.3d 1081, 1089 (8th Cir. 1997) (“Legislation that employs a suspect classification or impinges on a fundamental constitutional right merits stricter scrutiny and will survive only if it is narrowly tailored to serve a compelling governmental interest.”). But see, e.g., Devoil-El v. Groose, 160 F.3d 1184, 1187 (8th Cir. 1998) (noting that when a suspect classification (such as race) is implicated, “disparate impact alone, without the showing of intent to discriminate, will not trigger the strictest level of scrutiny”). If the alleged action does not impinge on a fundamental right or employ a suspect classification, rational basis review applies. See, e.g., Gavin, 122 F.3d at 1090 (“Because neither a fundamental right nor a suspect classification is at issue here, we apply rational basis review and accord the immediate termination provisions ‘a strong presumption of validity.’”).
29

Here, Plaintiffs claim to have suffered an injury “because they have been
committed while others with similar offenses and similar records have not, without any
rational basis for this disparity.” (Doc. No. 389 at 37.) Defendants, meanwhile, contend that Plaintiffs do not have standing to assert their equal protection claim.26 (Doc. No. 376
at 32.) Defendants further allege that Plaintiffs have “failed to show that their own
commitment was different from others who are similarly situated” and thus have not stated a viable equal protection claim.27 (Id. at 34.) In addition, Defendants maintain that
they are not responsible for initiating commitment proceedings at the outset and,
therefore, are not the proper parties for Plaintiffs’ equal protection claim. (Id. at 33
(“Even if Plaintiffs did have standing, Plaintiffs have not sued the proper parties on this
claim because the Defendants have no authority or control over initial civil
commitment.”).)
26 With respect to standing, Defendants allege: In this case, Plaintiffs, who are currently civilly committed, have not
alleged a causal connection between differing rates of civil commitment in various counties and any injury they have actually incurred and how a favorable decision would correct that injury. Because Plaintiffs and Class Members are currently civilly committed to MSOP, they are not and will not be subject to a petition for civil commitment, and any redress concerning upfront civil commitment rates would have no impact on their current status.
Thus, this claim should be dismissed for lack of standing. (Doc. No. 376 at 33.) 27 Defendants also submit that even if Plaintiffs satisfied the “similarly situated” requirement, “Minnesota’s civil commitment statute sets the same standards applicable state-wide for civil commitment of a proposed [SPP] or [SDP].” (Doc. No. 376 at 34.)
30

Plaintiffs’ equal protection claim appears to challenge the initial decision to pursue civil commitment—typically made by the appropriate county attorney’s office, which files the petition for civil commitment in state district court—of each of the class members, as compared to the decision not to pursue commitment of other individuals. Plaintiffs do not allege, however, that the named Defendants28 were in any way responsible for their commitment to MSOP at the outset. The Court therefore agrees that Plaintiffs have not asserted a viable claim against the named Defendants in this action.29 As such, Count X of Plaintiffs’ Complaint is properly dismissed.
4. First Amendment Claims In Counts VI and VII, respectively, Plaintiffs assert that Defendants have denied Plaintiffs their right to religious freedom and have unreasonably restricted Plaintiffs’ freedoms of speech and association in violation of the First Amendment. Defendants maintain that Plaintiffs’ First Amendment claims are governed by the guidelines set forth in Turner v. Safley, 482 U.S. 78 (1987). (See Doc. No. 376 at 6-7); see also Turner, 482 U.S. at 89 (“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”). Plaintiffs dispute the applicability of Turner (which applies to claims asserted by prisoners), and argue for the modification of that standard as follows: 28 Each of the named Defendants is currently, or was previously, employed by DHS; Plaintiffs thus allege that each Defendant is responsible for various aspects of the operation of MSOP. (See Second Am. Compl. ¶¶ 29-37.) 29 The Court makes no determination, however, as to whether such a claim would be viable against any another party.
31

that any First Amendment restrictions on civilly committed individuals “must be reasonably related to ‘legitimate therapeutic or institutional interests.’” (Doc. No. 389 at 29 (quoting Ivey v. Mooney, Civ. No. 05-2666, 2008 WL 4527792, at *10 (D. Minn. Sept. 30, 2008)).) While the Court need not conclusively resolve the issue of the precise, applicable standard today, the Court considers each of Plaintiffs’ First Amendment claims in light of appropriate therapeutic interests as well as relevant safety and security concerns. Ivey, 2008 WL 4527792, at *4-5 (applying “a version of the Turner test, moderated to account for the principles stated in Senty-Haugen” in order to determine whether an MSOP policy “is reasonably related to legitimate institutional and therapeutic interests”); see Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006) (acknowledging that the liberty interests of individuals committed to state custody as dangerous persons “are considerably less than those held by members of free society,” but that such individuals are “entitled to more considerate treatment and conditions of confinement” than prison inmates) (internal citations omitted); Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir. 2004) (“Although an involuntarily committed patient of a state hospital is not a prisoner per se, his confinement is subject to the same safety and security concerns as that of a prisoner.”); Serna v. Goodno, 567 F.3d 944, 953 (8th Cir. 2009), cert. denied, 558 U.S. 972 (2009) (finding that “governmental interests in running a state mental hospital are similar in material aspects to that of running a prison” because “[a]dministrators have a vital interest in ensuring the safety of their staff, other patients, and of course in ensuring the patients’ own safety” and concluding, therefore, that “the government may take steps to maintain security at its institutions where sexually violent
32

persons are confined”). But see Beaulieu v. Ludeman, 690 F.3d 1017, 1039 (8th
Cir. 2012) (applying the four-factor Turner test to a First Amendment claim asserted by civilly committed sex offenders where the parties agreed to its application).30
Count VI asserts a claim for denial of the right to religion and religious freedom.
(Second Am. Compl. ¶¶ 255-63.) In particular, Plaintiffs allege that MSOP’s policies,
procedures, and practices cause Plaintiffs to be monitored during religious services and
during private meetings with clergy, do not permit Plaintiffs “to wear religious apparel or
possess certain religious property,” and do not allow Plaintiffs to “communally celebrate
their religious beliefs by having feasts.” (Id. ¶ 259.) Plaintiffs further claim that
Defendants do not provide the class members with Kosher or Halal meals. (Id. ¶ 197.)
Plaintiffs contend that such policies and practices “are not related to a legitimate
institutional or therapeutic interest” and thus constitute unreasonable restrictions on
Plaintiffs’ First Amendment rights. (Id. ¶¶ 260-61.)
In order to succeed on a claim asserted under the Free Exercise Clause of the First
Amendment, Plaintiffs must ultimately establish that the challenged regulations place a
“substantial burden” on Plaintiffs’ ability to practice their religions. See Patel, 515 F.3d
30 The Turner factors include: (1) whether there is a valid, rational connection between the regulation and legitimate governmental interests put forward to justify it; (2) whether alternative means of exercising their rights remain open to the prisoners; (3) whether accommodation of the asserted rights will trigger a “ripple effect” on fellow inmates and prison officials; and (4) whether a ready alternative to the regulation would fully accommodate the prisoners’ rights at de minimis cost to the valid penological interest.
Beaulieu, 690 F.3d at 1039 (quoting Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir. 1989)).
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at 813; Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997) (“[A] person claiming that a governmental policy or action violates his right to exercise his religion freely must establish that the action substantially burdens his sincerely held religious belief.”). To substantially burden one’s free exercise of religion, a regulation must: (1) “significantly inhibit or constrain conduct or expression that manifests some central tenet of a person’s individual religious beliefs”; (2) “meaningfully curtail a person’s ability to express adherence to his or her faith”; or (3) “deny a person reasonable opportunities to engage in those activities that are fundamental to a person’s religion.” Patel, 515 F.3d at 813 (quoting Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 988 (8th Cir. 2004)).
Defendants maintain that Plaintiffs have failed to plead an actionable freedom of religion claim because Plaintiffs have not identified specific instances in which any class member’s “sincerely held religious belief was infringed by an arbitrary denial of a requested religious meal.” (Doc. No. 376 at 11-12.) At this early stage of the proceedings, however, and when taken together with the other allegations regarding the conditions of Plaintiffs’ confinement, the Court concludes that Plaintiffs have raised a plausible free exercise claim, regardless of whether the Turner standard or a modified Turner standard applies. See Thompson R&R at 85-86 (“Because Plaintiff has put Defendants on notice of a plausible Free Exercise Clause claim, Defendant’s motion to dismiss in this respect should be denied and Plaintiff’s claims based on a First Amendment violation of his rights to freedom of religion . . . should remain.”).
Count VII asserts that Defendants have unreasonably restricted Plaintiffs’ rights to free speech and free association. (Second Am. Compl. ¶¶ 264-72.) As with their
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freedom of religion claim, Plaintiffs maintain that such restrictions “are not related to a legitimate institutional or therapeutic interest.” (Id. ¶ 269.)
With respect to free speech, Plaintiffs allege that Defendants have limited Plaintiffs’ phone use, have limited Plaintiffs’ access to certain newspapers and magazines, and have removed or censored articles from newspapers and magazines. (Id. ¶¶ 267-68.) The right of freedom of speech “includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read” as well as “freedom of inquiry” and “freedom of thought.” Griswold v. Connecticut, 381 U.S. 479, 482 (1965). Still, “[a]ny form of involuntary confinement, whether incarceration or involuntary commitment, may necessitate restrictions on the right to free speech.” Beaulieu, 690 F.3d at 1039.
Insofar as Plaintiffs challenge Defendants’ phone use and censorship policies, Plaintiffs have not identified the specific policies at issue; nor is the Court able to ascertain, at this stage, whether such policies are “reasonably related to legitimate institutional and therapeutic interests under the Turner factors,” modified, or otherwise. See Thompson R&R at 77-78. Nevertheless, in light of the allegations in the Complaint, Plaintiffs have raised a plausible claim that their First Amendment rights may be violated by overly restrictive policies, including those governing communication and censorship. See id. Accordingly, the Court denies Defendants’ motion insofar as it seeks to dismiss Plaintiffs’ free speech claims.
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Plaintiffs also allege that Defendants have restricted Plaintiffs’ freedom to associate with one another by limiting contact among the class members. (Second. Am. Compl. ¶ 266.)
While the Eighth Circuit has determined that the liberty interests of individuals committed to state custody as dangerous persons “are considerably less than those held by members of free society,” the Eighth Circuit has also acknowledged that such individuals are “entitled to more considerate treatment and conditions of confinement” than prison inmates. Senty-Haugen, 462 F.3d at 886 (internal citations omitted). Although Plaintiffs’ rights to freely associate are not unlimited, Plaintiffs no doubt retain, at a minimum, those First Amendment rights that are not inconsistent with legitimate security concerns. See Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 125, 132 (1977) (noting that while “numerous associational rights are necessarily curtailed by the realities of confinement,” even a prison inmate “retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system”). Equally, if not more important, however, are the therapeutic objectives of Plaintiffs’ commitment to MSOP. See id. at 125. Thus, the Court must consider challenges to MSOP restrictions that allegedly inhibit First Amendment interests in light of the legitimate policies and goals of the commitment system, to whose custody and care Plaintiffs have been committed. See id. (finding that challenges to policies that inhibit prisoners’ First Amendment rights “must be analyzed in terms of the legitimate policies and goals of the corrections system”); see also Minn. Admin. R. 9515.3080, subp. 1 (“The license holder must develop and follow policies and
36

procedures for maintaining a secure and orderly environment that is safe for persons in treatment and staff and supportive of the treatment program.”) (emphasis added). As such, in evaluating MSOP’s policies, the Court must not only take into account safety concerns, but must also consider whether such policies are “supportive of the treatment program.” See Minn. Admin. R. 9515.3080, subp. 1; Thompson R&R at 80-82. Again, considering Plaintiffs’ claims with respect to restrictions on their ability to freely associate in light of all of Plaintiffs’ allegations regarding their conditions of confinement, the Court finds that Plaintiffs have stated a valid claim. The Court therefore denies Defendants’ motion to the extent it seeks dismissal of Plaintiffs’ freedom of association claim.
Each of Plaintiffs’ First Amendment claims, as well as their other challenges to MSOP policies, arise from the broader allegation that their confinement in the program amounts to unconstitutional, criminal incarceration, despite the purported therapeutic purpose of the facilities and the commitment statutes. In essence, Plaintiffs contend that the conditions of their confinement, taken together, are inconsistent with a civil scheme, and have rendered MSOP punitive in nature. Contra Seling, 531 U.S. at 266 (“This case gives us no occasion to consider how the civil nature of a confinement scheme relates to other constitutional challenges, such as due process, or to consider the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature.”).
To determine whether MSOP’s policies violate Plaintiffs’ constitutional rights requires a balancing of fundamental liberties against institutional and therapeutic interests
37

that, without the benefit of independent expert assessment (as discussed below), the Court is not equipped to undertake at this early stage. At a minimum, however, Plaintiffs have articulated a viable claim that Defendants’ policies unlawfully restrict their First Amendment rights. As such, Counts VI and VII survive dismissal at this point in the proceedings.
5. Unreasonable Search and Seizure Claim Count VIII of Plaintiffs’ Complaint asserts that Defendants have violated Plaintiffs’ Fourth Amendment rights “through their search policies, procedures, and practices.” (Second Am. Compl. ¶ 275.) Plaintiffs challenge Defendants’ “random cell searches,” “window checks,” “strip searches,” and “random pat downs.” (Id. ¶¶ 276-78.) “Involuntarily civilly committed persons retain the Fourth Amendment right to be free from unreasonable searches that is analogous to the right retained by pretrial detainees.” Arnzen v. Palmer, 713 F.3d 369, 372 (8th Cir. 2013) (quoting Beaulieu, 690 F.3d at 1017). To determine “reasonableness” in an institutional setting, a court must balance “the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 558-59 (1979). In applying the balancing test, a court must consider: (1) the scope of the particular intrusion; (2) the manner in which the search is conducted; (3) the justification for initiating the search; and (4) the place in which the search is conducted. Serna, 567 F.3d at 949 (quoting Bell, 441 U.S. at 559). A court must defer to the judgment of the correctional (or institutional) officials “unless the record contains substantial evidence showing their policies are an
38

unnecessary or unjustified response to problems of institutional security.” Arnzen, 713 F.3d at 373 (quoting Beaulieu, 690 F.3d at 1029).
In the past, the Eighth Circuit has upheld the use of strip searches for the purposes of protecting the public, protecting transport teams, and preventing dangerous contraband from entering MSOP. See Arnzen, 713 F.3d at 373 (citing Beaulieu, 690 F.3d at 1027-30); see also Serna, 567 F.3d at 953. The Eighth Circuit, however, has also recently considered “the availability of less intrusive techniques when assessing the reasonableness of a challenged procedure,” especially when “personal privacy” interests “and dignity” are at stake. Arnzen, 713 F.3d at 373, 375 (affirming district court’s issuance of a preliminary injunction prohibiting staff from capturing images of civilly committed sex offenders while they occupied single-person bathrooms); see also Serna, 567 F.3d at 955 (“[N]ot all search techniques may be swept under the rug of deference to the detention-center decisionmakers[.]”). Importantly, here, Plaintiffs’ Fourth Amendment claim must be evaluated within the context of Plaintiffs’ other allegations regarding the unconstitutional, punitive nature of their confinement. To the extent Plaintiffs challenge Defendants’ use of shackles and handcuffs, such allegations are relevant to their claims regarding the punitive nature and conditions of confinement. Contra Semler v. Ludeman, Civ. No. 09-732, 2010 WL 145275, at *20-22, *26-27 (D. Minn. Jan. 8, 2010) (finding that MSOP’s visual body search, room search, and restraint policies were not unconstitutional on a motion to dismiss); Pyron v. Ludeman, Civ. Nos. 10-3759 & 10-4236, 2011 WL 3293523, at *6 (D. Minn. June 6, 2011) (dismissing a Fourth Amendment claim).
39

Defendants maintain that MSOP’s search policies are related to legitimate safety and security concerns. (See Doc. No. 376 at 16-17.) A determination of the reasonableness of such searches, however, requires that a court consider and evaluate the unique characteristics of the search (or policy) in question. See Bell, 441 U.S. at 559 (“The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.”); see also Thompson R&R at 88 (noting that “the Supreme Court in Bell instructs that the balancing that needs to be done to determine the reasonableness of a search must be done on a case-by-case basis and requires at least some evidentiary record”).
Considering Plaintiffs’ Fourth Amendment claim in conjunction with Plaintiffs’ other allegations surrounding the punitive nature of their confinement, the Court is unable to determine at this time “if the alleged search policies and searches conducted in this case are reasonable and appropriate.” Thompson R&R at 88-89. Contra Evenstad v. Herberg, -- F. Supp. 2d --, Civ. No. 12-3179, 2014 WL 107718, at *5 (D. Minn. Jan. 10, 2014) (finding that “room searches are an ‘appropriate security measure’” and that it was not unreasonable to require a civilly committed individual “to remain outside his room” while it was searched). At this stage, the Court lacks specific details regarding the challenged searches and the particular policies at issue. See Thompson R&R at 89 (“Facts relating to the scope of the searches, the manner in which they were conducted, the justifications for the searches, and the places in which they were conducted are yet to be developed.”). Taking the facts alleged in Plaintiffs’ Complaint together, and assuming the allegations to be true for purposes of the instant motion, the Court concludes that
40

Plaintiffs have articulated a plausible Fourth Amendment claim. As such, the Court
denies Defendants’ motion insofar as it seeks dismissal of Count VIII.
6. Contract-Related Claims
Counts XII and XIII assert claims of breach of contract, and tortious interference
with contract, respectively, against Defendants Jesson, Benson, Moser, Lundquist,
Johnston, and Hébert related to their alleged failure to provide adequate treatment.31
Essentially, Plaintiffs argue that those Defendants “actively participated in and supported
the inadequate treatment policies as implemented by MSOP, which resulted in the failure
to comply with contract[s] to provide treatment by MSOP.” (Second Am. Compl. ¶¶ 311,
322.)32 Plaintiffs base their claims on the “Consent for Participation in Sex Offender
Treatment” contract, which provides, among other things:
that the patient’s therapist has discussed the course of treatment at the MSOP, that the patient received information about the levels of care and stages of treatment, that the patient has received the goals and behavioral expectations at the MSOP, that upon completion of treatment the MSOP will support their petition for provisional discharge, that each stage of treatment has specific goals and behavioral expectations, that services such as education and vocation are provided . . . .
31 Count XIII also asserts that those Defendants intentionally violated Minn. Stat. § 253B.03, subd. 7. (Second Am. Compl. ¶ 322; see id. ¶ 319 (quoting Minn. Stat. § 253B.03, subd. 7 (“A person receiving services under this chapter has the right to receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary.”).)
32 Plaintiffs further claim that those Defendants were aware “of the failure to progress Plaintiffs and [c]lass members through the different treatment phases to the point that they could be conditionally or unconditionally released” and that “the MSOP treatment program as implemented had only conditionally released a single person and had never unconditionally released anyone committed to MSOP.” (Second Am. Compl. ¶¶ 310, 312, 321, 323.)
41

(Id. ¶ 318; see also Doc. No. 377, Figueroa Aff. ¶ 19, Exs. 18-31.) For the same reasons discussed above with respect to Plaintiffs’ failure to provide
treatment claims, the Court concludes that Plaintiffs have stated plausible contract-based claims at this stage of the proceedings. Consequently, the Court denies Defendants’ motion to dismiss with respect to Counts XII and XIII.
7. Monetary Damages Defendants argue that they are entitled to Eleventh Amendment immunity from monetary damages against them in their official capacities. (Doc. No. 376 at 3.) It appears from the Complaint, however, that Plaintiffs have limited their request for monetary damages to Defendants in their individual capacities. (See Second Am. Compl. ¶¶ 12, 41.) Nevertheless, to the extent Plaintiffs may seek any such monetary damages against Defendants in their official capacities, the Court agrees that monetary damages are not recoverable. See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974) (“[A] suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.”); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.”). Any claim for monetary damages against Defendants in their individual capacities, however, remains.33
33 Defendants also argue that Plaintiffs have failed to plead, with particularity, facts to demonstrate the personal involvement of each of the named Defendants in the
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II. Experts
On December 6, 2013, the Court appointed Dr. Naomi Freeman, Ms. Deb
McCulloch, Dr. Michael Miner, and Dr. Robin Wilson as experts pursuant to Rule 706 of
the Federal Rules of Evidence. (Doc. No. 393 at 1-2.) The Court delineated the duties of
the experts as follows:
• To advise the Court on professional standards of care and treatment of sex offenders, both within and outside large facilities; • To advise the Court on professional standards on conditions/rules regarding confinement/security within large facilities, such as [MSOP]; • To advise the Court on experiences and programs among the states in this field; • To advise the Court on research on effectiveness of treatment, and on recidivism, in both large facilities and appropriate less restrictive programs; • To advise the Court regarding risk assessment and placement decisions for sex offenders; • To advise the Court [on] practices, rules, treatment, conditions, risk assessments, and the like at [MSOP], and the professional adequacy of care, treatment and confinement at the Program; • To advise the Court on any matters the experts believe are pertinent to understanding their findings and recommendations regarding the above duties; • To make recommendations to the Court regarding these matters, and to respond to any further inquiries by the Court.
(Id. ¶ 9.)
(Footnote Continued From Previous Page)
constitutional violations alleged in the Complaint. (Doc. No. 376 at 4-5.) The Court finds, however, that Plaintiffs have alleged sufficient facts to survive a motion to dismiss at this stage of the proceedings.
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The parties submitted their respective proposals with respect to the work of the
experts by letter. (Doc. No. 421.) Specifically, Plaintiffs propose that the experts focus
their work on the following areas:
1. Evaluation of all Class members and make recommendations as to whether each Class member is in the correct treatment phase; whether the Class member should be recommended for provisional or full discharge and/or whether the Class member could be placed in a less restrictive treatment setting; 2. Review of the current treatment program at MSOP and how it is being implemented to determine whether the program on its face and as implemented meets the professional standard of care and treatment of sex offenders and make recommendations for any changes that should be made to the treatment program; 3. Review the current MSOP policies and practices with regard to the conditions of confinement to determine whether they satisfy the balance between security and a therapeutic environment and make recommendations for any changes that should be made to the conditions of confinement at both the Moose Lake and St. Peter facility; and 4. Provide the Court with recommendations as to less restrictive alternatives and how such facilities may operate.
(Id. at 3.) Plaintiffs further request that:
Consistent with the Court’s broad mandate, the experts should look to other states that have civil commitment programs for sex offenders to provide guidance on alternative options. The experts should also have liberal access to the relevant people, policies, files, and assistance needed to satisfy their duty to the Court including access to the following information:
• Review of Patient Files: The experts shall be afforded full access to all patient files and related documentation to verify that the proper professional standards of care and treatment are being applied to all areas of patient care, including treatment, risk assessment, discipline, and client placement in the MSOP. The experts shall be afforded the opportunity to meet with clients subject to client consent to such participation - to discuss client treatment files and treatment status.
• Review of MSOP Policies: The experts shall be afforded full access to all MSOP policy makers as well as all policies and related documentation to verify that professional standards of care and treatment are being applied to all areas of the MSOP, including client treatment and placement, conditions
44

of confinement, security, and any other matters the experts believe are pertinent to the discharge of their duties under the Expert Order.
• Review of Conditions of Confinement: The experts shall be afforded full access to review the current conditions of confinement and related policies and rules regarding the same within the MSOP in order to advise the Court on professional standards regarding the conditions of confinement that establish a therapeutic environment that provides adequate security for clients, staff, and visitors.
• Review of the Treatment Program: The experts shall be afforded full access to review all aspects of the current treatment program provided by the MSOP to verify that professional standards of care are being applied to client treatment. The review shall encompass the physical and psychological testing applied to clients, amount and format of treatment, applicable standards for progression and discharge, and any other matters the experts believe are pertinent to the discharge of their duties to the Court under the Expert Order.
• Review of Less Restrictive Alternatives: The experts shall review the current and proposed less restrictive alternative facilities and advise the Court on the professional standards of care in such facilities as well as the experiences of other states regarding the establishment and use of less restrictive alternatives and client placement in those less restrictive alternatives.
(Id. at 3-4 (emphasis in original).) Defendants, however, seek to limit the experts’ work
to preparing a report that addresses the following:
1. The current professional standards for the treatment of civilly committed sex offenders and the extent to which MSOP’s program design reflects those standards; 2. How other civil commitment programs have reintegrated civilly committed sex offenders into the community, with particular attention to community relations; and, 3. How other states, if any, are providing treatment and management of lower-functioning civilly committed sex offenders in community settings.
(Id. at 4.) Defendants suggest that, following the issuance of the report, the Court may
consider additional proposals by the parties for further expert work. (Id.)
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Following the Court’s meeting with the experts, the experts submitted their

proposal to the Court, which requests a number of documents for their review, and further

states, in relevant part:

Panel of Experts Plan:

•

Review documentation listed below

• Once the panel is in receipt of documents, we will take a few weeks

to review and then schedule a conference call to determine time frames and

next steps

•

Complete site visits to St. Peters [sic] and Moose Lake

•

Interview patients and staff at each facility

•

Complete chart reviews based on random sample . . . .

Initial Scope of Panel Work:

•

The panel plans to review the MSOP treatment and screening

program/process, not the individuals (i.e., residents) in the program. • If while reviewing resident charts or interviewing residents the panel

identifies glaring issues with a resident not receiving appropriate services,

we will generally comment on that and make system recommendations to

address the discovered issues. The goal of looking at resident charts and

possibly interviewing residents, however, is [to] get an understanding of

what is happening in the program so that it may be evaluated, not to make

comments about an individual resident’s risk or treatment progress. . . .

Plan for Reviewing a Sample of Resident Charts: • The panel needs information from MSOP related to how residents

are separated within the program - by ward, by phase, by treatment tracks

and/or by specialized population (e.g., SPMI, psychopathy,

juveniles/juvenile only offenders, intellectual disability)

o Please provide a total number of residents in each of the above

groups

•

Based on the above groups, members of the panel will review a

proportion of resident charts. Although an exact number cannot be

determined until further information is provided, the panel will aim to

review 20% to 25% of resident charts. In smaller groups (e.g., the

psychopathy track, juvenile charts, elderly charts) the panel may review a

majority or all of the charts.

o Resident charts will be selected based on a stratified random sample

insuring that there are sufficient charts within each strata to make

meaningful conclusions and recommendations for important subgroups

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(e.g., juveniles, elderly residents). (Doc. No. 422 at 1, 3 (emphasis in original).)
The experts request a number of reference documents, including publicly available reports and documents related to this lawsuit, as well as MSOP evaluation reports and administrative directives and rules. (Id. at 1.) The experts also request copies of MSOP’s policies and procedures, such as the following: organizational charts (“including job descriptions and qualifications for clinical/treatment staff and supervisors”); a program description (“including phase goals/treatment targets, treatment hours, treatment service plans, etc.”); the patient/resident handbook; the treatment schedule (including “standard resident schedule for each phase of treatment”); the grievance policy/process; the behavioral management plans/policies; the admission process and policy; the referral for release and release process; the staff-to-patient ratios and staffing numbers; the staff training policies; the assessments used for the treatment process; templates for any forms and assessments utilized in the treatment process; and a chart map (including a list of documents that should be in each resident’s chart). (Id. at 1-2.)
The Court hereby orders that the experts shall have complete and unrestricted access to the requested documents, as well as any other documents they may require for their evaluations and assessments, insofar as such documents exist.
In addition, while the experts seek to conduct initial chart reviews to “get an understanding of what is happening in the program so that it may be evaluated, not to make comments about an individual resident’s risk or treatment progress,” the Court finds that independent risk assessments and treatment recommendations for each of the
47

class members will ultimately be necessary in order for the Court to comprehensively evaluate Plaintiffs’ claims, including whether the commitment statutes, as applied, and whether MSOP, as implemented, pass constitutional muster. Still, the Court recognizes that such a task is no small undertaking and will require a great deal of time and resources. The Court therefore approves the experts’ plan “to review 20% to 25% of resident charts” at the outset, with the qualification that a complete and independent evaluation of each patient will ultimately be necessary.
The Court hereby directs the experts to address each of the issues identified in the experts’ proposal, and the additional issues raised by the parties, as well as the following: (a) each class member’s current level of dangerousness (current risk assessment), including whether each class member poses a “real, continuing, and serious danger to society”; (b) whether each class member is actually eligible for discharge under the applicable statutory provisions or otherwise no longer meets the statutory criteria for initial commitment; (c) whether each class member is placed in the proper treatment phase; (d) whether each class member would be a candidate for a less restrictive facility; and (e) the specific need and parameters for less restrictive alternative facilities.
With respect to less restrictive alternatives, in addition to developing proposals for any new in-patient facilities and issuing recommendations as to individual class member placement therein, the experts should also consider possible out-patient treatment options, including counseling, therapy, and support groups, and shall identify any class members who, in their professional judgment, are appropriate candidates for out-patient treatment.
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The Court further directs that, when the experts commence their comprehensive evaluations, they start their evaluations with those individuals residing in the Assisted Living Unit, the Alternative Program Units, and the Young Adult Unit.
The Court notes that, on December 13, 2012, the Court approved James L. Haaven, M.A., William D. Murphy, Ph.D., Robert J. McGrath, M.A., Jill D. Stinson, Ph.D., and Christopher D. Kunkle, Psy.D., to serve as MPET members. (Doc. No. 281 at 2.) Part of the MPET’s task was to review a random sampling of client treatment records, which it did. (Doc. No. 275; MPET Report.) As such, in performing their work, including the comprehensive evaluations of each class member, the experts may call upon the services of the above MPET members to help accomplish that task, or any other. The experts may also consult with and call upon Roberta Opheim, Minnesota State Ombudsman for Mental Health and Developmental Disabilities, in carrying out their duties, and shall have unrestricted access to do so.
The Court notes that its consideration of Plaintiffs’ claims on the merits will require extensive evaluation of MSOP and in-depth assessments of the class members by the Court-appointed experts. The Court acknowledges, however, that such work on the part of the experts will likely take a substantial amount of time and require significant resources. As such, the experts may complete their review in a series of stages. As each stage proceeds, the findings of the experts may require that the experts adjust their evaluation approach in light of their findings. The Court therefore reserves the right to amend, alter, or supplement its expert orders as necessary.
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III. Motion for Declaratory Judgment Plaintiffs move for a declaratory judgment that the Minnesota statutes governing
civil commitment and treatment of sex offenders are “unconstitutional as written and as applied.” (Doc. No. 362 at 1.) Specifically, Plaintiffs argue that the discharge standard set forth by statute, and as applied by Defendants, has “made it all but impossible for any individual to be released from civil commitment,” and has thus rendered commitment to MSOP “in essence a life sentence,” in violation of due process. (Id. at 1-2.)
The Court has broad discretion to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. The purpose of the Declaratory Judgment Act is to provide a remedy that will “minimize the danger of avoidable loss and the unnecessary accrual of damages.” Koch Eng’g Co. v. Monsanto Co., 621 F. Supp. 1204, 1206-07 (E.D. Mo. 1985) (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2751 at 569 (1983)); see Lancaster v. N. States Power Co., Civ. No. 11-619, 2011 WL 5444115, at *6 (D. Minn. Nov. 9, 2011); Riedell Shoes, Inc. v. Adidas AG, Civ. No. 11-251, 2011 WL 1868180, at *5 (D. Minn. May 16, 2011). A court may render a declaratory judgment “(1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceedings.” Alsager v. Dist. Ct. of Polk Cnty., Iowa (Juvenile Div.), 518 F.2d 1160, 1163-64 (8th Cir. 1975) (quoting E. Borchard, Declaratory Judgments, 299 (2d ed. 1941)).
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Plaintiffs’ due process challenge to the statutes is both facial34 and as-applied. With respect to their as-applied challenge, Plaintiffs claim that the application of the statutory discharge standard to the class members is unconstitutional because, since the inception of the program, no one has been fully released from MSOP. (Doc. No. 362 at 14 (“[T]he discharge standard under Minn. Stat. § 253D, as applied to the hundreds of individuals committed under that statute, which since its inception has failed to require the release of even one individual, demonstrates that the statute as applied is unconstitutional.”).) With respect to their facial challenge, Plaintiffs contend that “the discharge standard allows the State to continue civil commitment” of sex offenders, even after the offenders “no longer meet[] the statutory criteria for commitment.” (Id. at 16.)
In further support of their facial challenge, Plaintiffs claim that “the commitment statute does not provide for a periodic and independent review,” and the “lack of an automatic independent review makes the discharge statute unconstitutional on its face because, as written, the statute is not narrowly tailored to guarantee” that individuals are only confined so long as they “continue[] to need further inpatient treatment and supervision for [their] sexual disorder[s] and to pose a danger to the public.” (Doc. No. 396 at 11, 12.) In this manner, Plaintiffs assert that “the statute on its face fails to
34 A “plaintiff can only succeed in a facial challenge by establishing that no set of circumstances exists under which the Act would be valid, i.e., that the law is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (internal quotation omitted).
51

bear a reasonable relationship to the original reason for commitment” and is thus
unconstitutional. (Id. at 12.)
While Plaintiffs take issue with the standard for release as written,35 insofar as
“[t]he discharge standard does not mirror the requirements of the commitment standard”
(Doc. No. 362 at 4), Plaintiffs also challenge “the consistently ineffective application of
the entire program to all [c]lass members,” including the discharge criteria.36 (Doc.
No. 396 at 5, 7.) Central to Plaintiffs’ as-applied constitutional challenge is the question
of each class member’s current level of dangerousness. The SPP and SDP statutes
require that, in order to be committed as a sex offender, an individual, among other
things, must be “dangerous to other persons” or “likely to engage in acts of harmful
35 The discharge statute states the following: A person who is committed as a sexually dangerous person or a
person with a sexual psychopathic personality shall not be discharged unless it appears to the satisfaction of the judicial appeal panel, after a hearing and recommendation by a majority of the special review board, that the committed person is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.
In determining whether a discharge shall be recommended, the special review board and judicial appeal panel shall consider whether specific conditions exist to provide a reasonable degree of protection to the public and to assist the committed person in adjusting to the community. If the desired conditions do not exist, the discharge shall not be granted. Minn. Stat. § 253D.31.
36 In other words, an individual may be initially committed to MSOP on proof of satisfaction of the statutory SPP or SDP criteria (see Minn. Stat. §§ 253D.02, 253D.07), but Minn. Stat. § 253D.31 prohibits discharge unless a patient satisfies a higher standard, which requires that he demonstrate, among other things, that he “is capable of making an acceptable adjustment to open society.” Minn. Stat. § 253D.31. Plaintiffs allege that this one-way door has resulted in essentially lifelong commitment.
52

sexual conduct.” See Minn. Stat. § 253D.02, subd. 15 (formerly Minn. Stat. § 253B.02, subd. 18b); Minn. Stat. § 253D.02, subd. 16 (formerly Minn. Stat. § 253B.02, subd. 18c). Thus, inherent in Plaintiffs’ Complaint is the allegation that individuals who are no longer dangerous continue to be confined at MSOP.37 (See, e.g., Second Am. Compl. ¶ 213 (“Confinement that continues after the person no longer meets the statutory requirements for commitment violates due process.”).)
Defendants acknowledge that MSOP includes eight “specialty units” for certain individuals, including, among others, the “Alternative Program Units,” the “Young Adult Unit,” and the “Assisted Living Unit.” (Doc. No. 380 at 12 (citing Hébert Aff. ¶¶ 85-86).)38 According to Defendants, the Alternative Program Units house 112 patients “with compromised executive functioning, cognitive impairments, or traumatic brain injuries,” who “lack ability to succeed in the conventional programming.” (Doc. No. 380 at 12 (citing Hébert Aff. ¶ 86).) The Young Adult Unit houses twenty-four patients between the ages of eighteen and twenty-five, “who require specialized treatment programming due to emotional immaturity and vulnerability.” (Doc. No. 380 at 12-13
37 Plaintiffs’ briefs in support of their motion for declaratory judgment do not explicitly raise arguments regarding each class member’s current level of “dangerousness”; Plaintiffs are thus by no means limited to such challenges. 38 “About 41 percent of patients currently reside in one of the eight specialty units, with the remaining 59 percent resid[ing] in general, non-specialty units.” (Doc. No. 380 at 12 (citing Hébert Aff. ¶ 85).)
53

(citing Hébert Aff. ¶ 86).) Meanwhile, eighteen patients reside in the Assisted Living Unit. (Doc. No. 380 at 13 (citing Hébert Aff. ¶ 86).)39
It defies reason that individuals who are comatose or otherwise completely incapacitated would be considered so dangerous as to require continued confinement in a secure, prison-like facility. Moreover, an individual who refuses to participate in treatment, but is no longer dangerous, cannot constitutionally continue to be confined in such a facility. See Foucha, 504 U.S. at 77 (noting that a committed individual “may be held as long as he is both mentally ill and dangerous, but no longer” and that it is “unconstitutional for a State to continue to confine a harmless, mentally ill person”). Due process would dictate that, in order for the State to justify continued commitment, the basis for commitment must continue to exist. See id. (“Even if the initial commitment was permissible,” a civil commitment may not “constitutionally continue after that basis no longer exist[s].”). At this stage of the proceedings, however, the record does not contain any current assessments of dangerousness or other commitment criteria particularized to any class member. Plaintiffs have not presented the Court with any evidence with which the Court (or the appropriate experts) may evaluate each class member’s current level of dangerousness. As such, the extent to which each class member poses a “real, continuing, and serious danger to society” remains to be
39 Notably, the MPET Report found that “[t]he current criteria for phase progression may need to be modified for certain populations of clients, including those persons with intellectual or developmental disabilities, severe and persistent mental illness, and significant cognitive impairment (e.g., dementia).” (MPET Report at 5.)
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ascertained as this case proceeds.40 See Hendricks, 521 U.S. at 372 (Kennedy, J.,
concurring).
While the Court acknowledges the obvious potential for an ongoing harm to
Plaintiffs, and notes that declaratory relief may ultimately be appropriate, a decision on
the issue of the constitutionality of the Minnesota statutes governing civil commitment
and treatment of sex offenders is premature at this juncture. While Plaintiffs’ allegations
have no doubt called into deep question Minnesota’s sex offender commitment scheme,
Plaintiffs have provided no factual or evidentiary support for the proposition that any
class member is actually eligible for discharge under the applicable statutory provisions
or otherwise no longer meets the statutory criteria for initial commitment. The experts
will address that issue, as articulated above, in their assessments of each of the class
members. At this early stage, and on the current record, however, the Court has no way
of evaluating Plaintiffs’ discharge-related claims.41
40 It is unquestionable that commitment, at the outset, must be justified by law. Similarly (as discussed above with regard to dangerousness), continued commitment must also be justified. A statute that—as written, as applied, or as implemented—renders discharge from a sex offender civil commitment program more onerous than admission to it, such that individuals who no longer meet commitment criteria remain confined, raises grave due process questions. In that regard, the Court expresses serious doubts as to the constitutionality of Minnesota’s sex offender commitment statutes and their implementation through MSOP.
41 Defendants claim that “MSOP provides a risk assessment to the SRB [Special Review Board] when a patient petitions for discharge or provisional discharge” (Doc. No. 382 at 4 (citing Doc. No. 386, Allen Aff. ¶ 5)), however, Defendants do not purport to procure periodic, independent assessments or otherwise evaluate whether a patient continues to meet the initial commitment criteria, even after potentially decades of confinement in the program, unlike most other States (see OLA Report at xii, 89-91). But
(Footnote Continued on Next Page)
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It is also deeply disturbing that only two individuals have been provisionally
released since the program’s inception (and not a single patient has been fully released
from the program). That fact alone, however, is insufficient to carry Plaintiffs’ burden on
their motion. See Fitz v. Dolyak, 712 F.2d 330, 333 (8th Cir. 1983) (“Since a
presumption of constitutionality attaches to state legislative enactments, a party seeking
to challenge a statute under this standard bears a heavy burden.”) (citations omitted).
Still, should the discovery process reveal that the application of the sex offender
commitment statutes to the class members has resulted in confinement that has been
rendered punitive—contrary to the statutory treatment purpose of commitment—the
Court will not hesitate to rule on Plaintiffs’ claims at the proper time. As such, the Court
denies the motion for declaratory judgment without prejudice.
(Footnote Continued From Previous Page)
see Minn. Stat. § 253B.03, subd. 5 (“A patient has the right to periodic medical assessment, including assessment of the medical necessity of continuing care . . . . The treatment facility shall assess the physical and mental condition of every patient as frequently as necessary, but not less often than annually.”). Moreover, the OLA Report found that the “SRB relies on MSOP treatment team reports and . . . MSOP risk assessment[s] in making [its] recommendations to SCAP” and noted that “both SRB and SCAP probably rely greatly on MSOP’s assessments of [its] clients.” (OLA Report at 88.) The Task Force Report also recommended that “the Legislature modify current law to provide for biennial review of the continued commitment of committed individuals, including review of the placement of the committed individual, without requiring the individual to request that review.” (Task Force Report at 16.) The Task Force further noted that “[s]ignificant modifications of the process by which the need for continued commitment is determined and the standards for evaluating that need will address the serious issues of duration of commitment and the absence of meaningful release from commitment.” (Id.)
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IV. Motions for Preliminary Injunction A. Legal Standard A court considers four primary factors in determining whether to issue a
preliminary injunction: (1) the threat of irreparable harm to the moving party; (2) the likelihood of the moving party’s success on the merits; (3) the state of balance between the alleged irreparable harm and the harm that granting the injunction would inflict on the other party; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981). This analysis was designed to determine whether the court should intervene to preserve the status quo until it decides the merits of the case. Id. In each case, the factors must be balanced to determine whether they tilt toward or away from granting injunctive relief. See West Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th Cir. 1986). A preliminary injunction is an extraordinary remedy. See Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir. 1987). The party requesting the injunctive relief bears the “complete burden” of proving all of the factors listed above. Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir. 1987).
B. Less Restrictive Alternatives & Re-Evaluation of Class Members Plaintiffs move for an injunction for the creation of less restrictive alternatives to confinement at MSOP facilities, as well as a re-evaluation of each of the class members to determine whether they are each placed in the proper treatment phase and whether they should be placed in a less restrictive facility. (Doc. No. 364 at 1; Doc. No. 368 at 2.)
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To the extent Plaintiffs seek re-evaluation, the Court has appointed several expert witnesses and has assigned them several tasks, as set forth above. One such task is to conduct extensive evaluations, which will require independent assessments of each of the class members. Such evaluations shall include, but will not be limited to, whether each class member is “placed in the proper treatment phase” and whether each class member would be a candidate for a less restrictive facility. Thus, to the extent Plaintiffs move for a re-evaluation of each of the class members, the motion is now moot. The Court nonetheless reserves the right to revise, expand, or otherwise amend the scope of expert review in this matter as the case progresses.
With respect to less restrictive alternatives, Plaintiffs allege that “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 claim that MSOP’s failure to provide a less restrictive alternative to confinement at those secure facilities violates due process. (See generally id. ¶¶ 241-48.) Plaintiffs further note that MSOP, as implemented, fails to account for the fact that not all class members “have the same level of security needs.” (Id. ¶ 245.) Additionally, Plaintiffs observe that if a patient “no longer meets the statutory requirements for civil commitment, there is no less restrictive facility or program for [him] to enter.” (Id.)
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While it previously appeared that Commissioner Jesson was taking steps toward
moving some class members to a less restrictive facility42 and seeking proposals for the
creation of additional less restrictive alternative facilities,43 any such efforts were
thwarted, or at least put on hold indeterminately, by Governor Dayton’s November 13,
2013 Letter. (See Dayton Letter at 2 (directing 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”).) Indeed, this kind of executive conduct may be a principal source of
DHS’s struggle to translate into reality a program—complete with less restrictive
alternative treatment facilities—that Plaintiffs say exists only on paper.44
42 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, 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).)
43 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.” (Jesson Aff. ¶ 16, Ex. C.)
44 Such political activism with respect to MSOP is not new. To be sure, Governor Pawlenty previously issued an Executive Order in 2003, directing that state agencies “ensure that no person who has been civilly committed under Minnesota law as a sexually dangerous person or as a person with a sexual psychopathic personality is discharged into the community,” and that the DHS Commissioner “take all appropriate actions within his authority to ensure that persons who have been civilly committed as sexually dangerous persons or as persons with sexual psychopathic personalities are not allowed into the community on pass status, provisional discharge or otherwise,” unless required by law or court order. (Gustafson Aff. II ¶ 3, Ex. A (“Pawlenty 2003 Executive Order”) ¶¶ 2-3, available at
(Footnote Continued on Next Page)
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To the extent Plaintiffs seek the immediate creation of less restrictive alternatives, the motion is premature nonetheless. Without a current assessment of each of the class members to determine the exact need for facilities alternative to Moose Lake and St. Peter, the Court has no way of establishing the specific parameters of such less restrictive facilities—for example, how many facilities might need to be created, how many individuals any such facility could and should house, what unique services each facility would provide, and the varied levels of security that each would necessitate.
The tasks of the Court-appointed experts, as delineated above, include an assessment of the specific need and parameters for any less restrictive alternative facilities. Of course, a determination of what features and services less restrictive alternatives to Moose Lake and St. Peter should have is directly related to expert evaluation of each of the class members, including dangerousness, which likely will require a current risk assessment for each of MSOP’s approximately 700 clients. Once the experts have conducted and completed their evaluations, and the record has been adequately supplemented, the Court may then address the issues raised in Plaintiffs’ motion on the merits and may thus determine what additional facilities are necessary and constitutionally required. As it stands now, however, at this early stage, Plaintiffs have not pointed to sufficient evidence to demonstrate that they are entitled to the immediate
(Footnote Continued From Previous Page) http://www.leg.mn/archive/execorders/03-10.pdf.) Governor Pawlenty further ordered that state agencies fulfill their responsibilities regarding SPPs and SDPs “with the primary consideration of providing protection to the public.” (Id. ¶ 1.)
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creation of, and placement in, less restrictive alternative facilities. Having considered each of the relevant Dataphase factors, the Court concludes that Plaintiffs have not carried their burden of establishing that injunctive relief is warranted at this early stage of the proceedings. To be clear, however, the Court will not hesitate to order less restrictive alternatives if Plaintiffs establish that such facilities are constitutionally required. In light of the foregoing considerations, Plaintiffs’ motion is denied without prejudice.
C. Special Master Plaintiffs have also moved for the appointment of a special master. Specifically, Plaintiffs “request a [s]pecial [m]aster to oversee the implementation of changes that will lead to a constitutional treatment program.” (Doc. No. 398 at 18 (emphasis in original).) A court “may, in its discretion, make appointment of a Master to assist in any of the incidents of a proceeding before it, . . . so long as there is no infringement upon the right of trial by jury or any prejudice to other substantive right.” Schwimmer v. United States, 232 F.2d 855, 865 (8th Cir. 1956). For the reasons articulated above, the Court has declined to rule on the constitutionality of MSOP, or its implementing statutes, at this time. The Court has further denied Plaintiffs’ motions for injunctive relief. As such, any request for the appointment of a special master to oversee changes to the program is premature at this stage of the proceedings. The Court makes no determination, however, as to whether a special master may be required in the future and reserves the right to appoint such an
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individual should the record, as developed, support such a need. Consequently, the Court denies the motion without prejudice.45
CONCLUSION Having fully considered the pleadings and arguments of counsel, the Court concludes that each count of Plaintiffs’ Complaint (with the exception of the equal protection claim) easily survives dismissal. With respect to Plaintiffs’ motions, the primary basis upon which Plaintiffs seek declaratory and injunctive relief is the inference that Plaintiffs suggest should be made from the fact that no one has ever been fully discharged from MSOP. While that fact is certainly compelling, it, alone, is insufficient for the Court to grant the requested relief at this early stage of the proceedings. Indeed, such a fact should not be taken lightly, and may indicate pervasive constitutional inadequacies of the program; the purpose of the discovery and expert review processes is to shed light on such claims. Though Plaintiffs are not currently entitled to the injunctive and declaratory relief they seek, they may well be entitled to such relief if they establish, and prove true, the allegations set forth in the Complaint. As is evident from the law cited throughout this opinion, Minnesota may not constitutionally confine individuals at MSOP for punishment or deterrent purposes. Given the prison-like conditions described by Plaintiffs, and the lack of treatment and essentially no-exit regime alleged in this case, it may well be that, with a fully developed
45 Plaintiffs’ assertions, if proven true, may well obligate the Court to appoint a special master, as other courts throughout the nation have done in similar cases. At this juncture, however, such an appointment is premature for the reasons stated above.
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record, the Court will find the totality of the MSOP system to be unacceptably and
unconstitutionally punitive. See Hendricks, 521 U.S. at 373 (Kennedy, J., concurring).
In addition, one would expect that a non-punitive, civil commitment scheme
would provide treatment for those committed because of a “mental disease or mental
abnormality.” See id. at 372. What is more, Minnesota law dictates that civilly
committed individuals 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. If the evidence confirms Plaintiffs’
contentions, and MSOP systemically fails to provide patients with appropriate treatment,
whether because of a lack of qualified staff, a misguided approach, excessive restrictions,
or some other reason, the Court, like others, will not hesitate to take strong remedial
action.46
Likewise, despite “the object or purpose” of Minnesota’s civil commitment law to
provide treatment, if “the treatment provisions were adopted as a sham or mere pretext”
46 In one such example, the United States District Court for the Western District of Washington found that treatment professionals at Washington’s sex offender program had “departed so substantially from professional minimal standards as to demonstrate that their decisions and practices were not . . . based on their professional judgment.” Turay v. Seling, 108 F. Supp. 2d 1148, 1159 (W.D. Wash. 2000). The court initially issued an injunction based on conditions that included the following: inadequate staffing, inadequate training of staff regarding the clinical mission of the facility, the lack of individualized treatment, the absence of arrangements for clients to transition to release, inadequate provisions to allow clients’ families to participate in treatment, and a punitive treatment environment. See id. at 1151 n.1. The court ultimately required state officials to provide constitutionally adequate mental health treatment to sex offenders in the program and monitored their compliance over a thirteen-year time period. Id. at 1152; see also Turay v. Richards, No. C91-0664RSM, 2007 WL 983132, at *5 (W.D. Wash. Mar. 23, 2007) (dissolving the injunction).
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for continued detention, such a scheme would indicate “the forbidden purpose to punish.”
Hendricks, 521 U.S. at 371 (Kennedy, J., concurring). It is the treatment provisions of
the statutory scheme that purportedly distinguish Minnesota’s sex offender commitment
law from criminal punishment. Therefore, individuals must be committed for the purpose
of receiving treatment—not as retribution for their past criminal acts, however heinous,
for which they have already served and completed their sentences. See Crane, 534 U.S.
at 412 (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”) (internal quotations omitted); see also Hendricks,
521 U.S. at 373 (Kennedy, J., concurring) (“If the civil system is used simply to impose
punishment after the State makes an improvident plea bargain on the criminal side, then it
is not performing its proper function.”).47 (But see Pawlenty 2003 Executive Order ¶ 1
47 As more fully stated by Justice Kennedy in his consideration of the law at issue in Hendricks:
Notwithstanding its civil attributes, the practical effect of the Kansas law may be to impose confinement for life. At this stage of medical knowledge, although future treatments cannot be predicted, psychiatrists or other professionals engaged in treating pedophilia may be reluctant to find measurable success in treatment even after a long period and may be unable to predict that no serious danger will come from release of the detainee.
A common response to this may be, “A life term is exactly what the sentence should have been anyway,” or, in the words of a Kansas task force member, “SO BE IT.” Testimony of Jim Blaufuss, App. 503. The point, however, is not how long Hendricks and others like him should serve a criminal sentence. With his criminal record, after all, a life term may well have been the only sentence appropriate to protect society and vindicate the wrong. The concern instead is whether it is the criminal system or the civil
(Footnote Continued on Next Page)
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(ordering that state agencies “fulfill their responsibilities” in relation to SPPs and SDPs “with the primary consideration of providing protection to the public”).)
Plaintiffs charge that political maneuvering by various executive branch officials has played far too great a role in the administration of MSOP—in contravention of sound professional judgment and best practices; not only have Governors past and present issued executive directives prohibiting discharge from, and exercising control over, the system, but the Attorney General has also intervened in provisional release proceedings, which Plaintiffs suggest has politicized a process best left to treatment professionals in the field. Without in any way prejudging the outcome here, the Court must emphasize that politics and stigma cannot trump the fundamental rights of the class members who, pursuant to state law, have been civilly committed to receive treatment. To be sure, where state actors fail to remedy constitutional infirmities of statutes and programs such as those at issue here, the federal courts may be called upon to act in the interests of justice, as required by the evidence.
(Footnote Continued From Previous Page) system which should make the decision in the first place. If the civil system is used simply to impose punishment after the State makes an improvident plea bargain on the criminal side, then it is not performing its proper function. These concerns persist whether the civil confinement statute is put on the books before or after the offense. We should bear in mind that while incapacitation is a goal common to both the criminal and civil systems of confinement, retribution and general deterrence are reserved for the criminal system alone.
Hendricks, 521 U.S. at 372-73 (Kennedy, J., concurring).
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Today, the Court finds that it is constitutionally mandated that only individuals who constitute a “real, continuing, and serious danger to society” may continue to be civilly committed to MSOP. See Hendricks, 521 U.S. at 372 (Kennedy, J., concurring). If the evidence demonstrates that MSOP systematically continues to confine individuals who are not “a real, continuing, and serious danger to society,” then such confinement will be held unconstitutional. See id. Thus, the confinement of individuals with substantial medical or intellectual disabilities, who might never succeed in MSOP’s program, or are otherwise unlikely to reoffend, may be called into serious question.
As this case proceeds, the Court will address the global challenge to the policies, conditions, and practices maintained by Defendants. That those committed and confined to MSOP are sex offenders, who may be subject to society’s opprobrium, does not insulate the system from a fair and probing constitutional inquiry. If the program violates the Constitution, the Court will so find and act accordingly.
On the record currently before the Court, however, Plaintiffs have failed to demonstrate compelling circumstances sufficient to justify injunctive or declaratory relief at this time. The Court thus denies Plaintiffs’ motions, but without prejudice to renewing their motions upon the completion of discovery. The Court cautions the parties that its rulings on the motions currently before it will not dictate any future rulings the Court may make with the benefit of a complete factual record. That is to say, the Court will not hesitate to change course with respect to the relief sought by Plaintiffs should discovery and expert review reveal evidentiary support for Plaintiffs’ claims.
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While the Court has limited its review of Defendants’ motion to dismiss to the
Complaint and matters of public record, and Plaintiffs’ requests for injunctive relief to the
record currently before the Court, it is worth noting that Plaintiffs and the amicus curiae
reference commitment schemes established by other states and specialized research that
indicate that the “vast majority” of sex offenders can be “safely managed in the community.” (See, e.g., Doc. No. 410, Nelson Aff. ¶ 2, Ex. 1 at 9.)48 As a former
Assistant County Attorney who prosecuted sexual assault and child sexual abuse cases, and as a former Minnesota District Court Judge who handled many such cases,49 the
undersigned is sensitive to the interests of all of the individuals affected by this matter, as well as the concerns of the public at large.50
48 As stated by Grant Duwe, Minnesota Department of Corrections Director of Research:
[M]any high-risk sex offenders can be managed successfully in the community. The cost of civil commitment in a high-security facility also implies that this type of commitment should be reserved only for those offenders who have an inordinately high risk to sexually reoffend. Reducing the reliance on civil commitment in a high-security facility could involve fewer new commitments on the front end and more provisional discharges on the back end. (Nelson Aff. ¶ 2, Ex. 1 at 9.) 49 The undersigned was also appointed to serve as a member of the Minnesota Attorney General’s Task Force on the Prevention of Sexual Violence Against Women in 1988. 50 The Court has received various letters from not only victims and family members of victims of committed individuals, but also from family members of MSOP clients as well as individuals who claim to have experienced MSOP first-hand.
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If the evidence requires it, the Court will act. But it is the Minnesota Legislature
that is best equipped to develop policies and pass laws—within the limits of the
Constitution—that both protect public safety and preserve the rights of the class.
The time for legislative action is now. Time and again, professional assessments
have identified grave deficiencies in the program. Regardless of the claims raised in this
case, and irrespective of the Court’s ultimate rulings on any constitutional questions with
which it is presented, the interests of justice require that substantial changes be made to
Minnesota’s sex offender civil commitment scheme.51 Whether or not the system is
constitutionally infirm, without prompt action on the part of the legislature and DHS,
MSOP’s reputation as one of the most draconian sex offender programs in existence will
51 If the legislature’s public safety concerns stem from inadequate criminal penalties for crimes of sexual violence, criminal statutes may warrant revision as well. (See, e.g., OLA Report at 46 (“The Legislature should consider providing indeterminate sentencing for some sex offenders. As a condition of their release, offenders could be required to successfully complete treatment in prison.”); Task Force Report at 5 (noting the availability of “extended correctional supervision following release from confinement” for certain sexual offenses and expressing that “providing treatment to sex offenders while they are subject to the jurisdiction of the DOC appears to be effective and cost-effective, and expansion of those treatment programs should be examined carefully, regardless of any changes in sentencing laws for sexual offenses”).)
Moreover, separate from the issue of indeterminate sentencing, extended correctional supervision may, and often does, include GPS monitoring, treatment, curfews, alcohol and drug testing, and other conditions of release and supervision. See, e.g., Minn. Stat. § 609.3455, subd. 8 (noting that conditions of release “may include successful completion of treatment and aftercare” program); Minn. Stat. § 244.05, subd. 6 (permitting imposition of conditions of release including random drug testing, house arrest, daily curfews, and electronic surveillance as well as participation in “an appropriate sex offender program”).
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continue.52 The program’s systemic problems will only worsen as hundreds of additional detainees are driven into MSOP over the next few years.53 The politicians of this great
State must now ask themselves if they will act to revise a system that is clearly broken, or
stand idly by and do nothing, simply awaiting Court intervention.
ORDER
Based upon the foregoing, and the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint
(Doc. No. [374]) is GRANTED IN PART and DENIED IN PART as follows:
a. With respect to Plaintiffs’ equal protection claim, the motion
is GRANTED. Count X of Plaintiffs’ Second Amended Complaint (Doc.
No. [301]) is thus DISMISSED.
b. To the extent Plaintiffs may seek monetary damages against
Defendants in their official capacities, the motion is GRANTED.
52 Criticism of MSOP is not only domestic, but is international in reach. Even Great Britain has refused to extradite a sex offender when the government would not guarantee that the suspect would be kept out of MSOP—a program the court deemed “far too draconian.” Maricella Miranda, UK Court Blocks Eagan Sex-Crimes Suspect’s Extradition, Pioneer Press (June 28, 2012), http://www.twincities.com/ci_20961564/ukcourt-blocks-minnesota-sex-crimes-suspects-extradition; see Ian Evans, Britain Denies Extradition of Minnesota Sex Suspect, Star Trib. (June 28, 2012), http://www.startribune.com/local/south/160704485.html (noting that London court found that a commitment to MSOP would be a “flagrant denial” of the suspect’s human rights). 53 The OLA Report noted that “under current law and practices,” the population of MSOP is projected to reach 1,109 by the year 2020. (OLA Report at 4, 6 (“Expected growth from 2010 to 2020 is 93 percent under current law and practices.”).)
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c. In all other respects, Defendants’ motion is DENIED.

2. Plaintiffs’ Motion for Declaratory Judgment (Doc. No. [360]) is DENIED

WITHOUT PREJUDICE.

3. Plaintiffs’ Motion for Preliminary Injunction to Provide Less Restrictive

Alternative Treatment Facilities and to Re-Evaluate Class Members (Doc. No. [364]) is

DENIED WITHOUT PREJUDICE.

4. Plaintiffs’ Motion for Preliminary Injunction for the Appointment of a

Special Master to Oversee the Minnesota Sex Offender Program (Doc. No. [368]) is

DENIED WITHOUT PREJUDICE.

5. With respect to the experts appointed pursuant to Rule 706 of the Federal

Rules of Evidence (see Doc. No. [393]), the Court orders the following:

a. The experts’ work shall include, but shall not be limited to:

i.

Evaluating all class members54 and issuing reports and

recommendations as to: (a) each class member’s current level of

dangerousness (current risk assessment), including whether each

class member poses a “real, continuing, and serious danger to

society”; (b) whether each class member is actually eligible for

discharge under the applicable statutory provisions or otherwise no

longer meets the statutory criteria for initial commitment (or should

54 The experts shall commence their comprehensive evaluations with those individuals residing in the Assisted Living Unit, the Alternative Program Units, and the Young Adult Unit.

70

otherwise be recommended for provisional or full discharge);

(c) whether each class member is placed in the appropriate phase of

treatment; (d) whether each class member would be a candidate for a

less restrictive facility; and (e) the specific need and parameters for less restrictive alternative facilities,55 including the operation of such

facilities;

ii.

Reviewing the current treatment program at MSOP

and its implementation to determine whether the program meets

professional standards of care and treatment for sex offenders and

issuing recommendations as to any changes that should be made to

the treatment program; and

iii.

Reviewing current MSOP policies and practices with

regard to the conditions of confinement to determine whether they

satisfy the balance between safety concerns and a therapeutic

environment and making recommendations for any changes that

should be made to the conditions of confinement at both the

Moose Lake and St. Peter facility.

iv.

The experts shall also report to the Court on the

following: (a) the current professional standards for the treatment of

55 In addition to developing proposals for any new in-patient facilities and issuing recommendations as to individual class member placement therein, the experts should also consider possible out-patient treatment options, and shall identify any class members who, in their professional judgment, are appropriate candidates for out-patient treatment.

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civilly committed sex offenders and the extent to which MSOP’s

program design reflects those standards; (b) how other civil

commitment programs have reintegrated civilly committed sex

offenders into the community, with particular attention to

community relations; and (c) how other states, if any, are providing

treatment and management of lower-functioning civilly committed

sex offenders in community settings.

b. The experts’ work shall begin with, but will in no way be

limited to, the following:

i.

Reviewing MSOP treatment and screening

program/process;

ii.

Conducting site visits to St. Peter and Moose Lake and

interviewing patients and staff at each facility;

iii.

Reviewing 20% to 25% of resident charts, with the

aim of reviewing 100% of charts for those individuals in the

Assisted Living Unit, the Alternative Program Units, and the Young

Adult Unit; and

iv.

Identifying residents who are not receiving appropriate

services and making recommendations related thereto.

c. In conducting their work, the experts shall have complete and

unrestricted access to documents they may require, including the reference

documents and MSOP policy documents set forth above as well as patient

72

files and clinical documents.

d. Within fourteen (14) days of the date of this Order, and in the

format requested by the experts, Defendants shall provide the experts with

all of the reference documents and MSOP policies and procedures

requested by the experts. (See Doc. No. [422].)

e. DHS, and all officials, staff, consultants, and contractors for

DHS, are directed to provide the appointed experts with full and complete

access to all residents and staff as well as all relevant information,

documents, and records requested by the experts. Such access shall include,

but shall not be limited to, the following:

i.

Access to all patient files and related documentation;

ii.

Access to meet with, interview, or otherwise

communicate with MSOP patients;

iii.

Access to all MSOP policymakers as well as all

policies and related documentation;

iv.

Access to review the current conditions of confinement

at MSOP and related policies and rules;

v.

Access to review all aspects of the current treatment

program provided by MSOP; and

vi.

Access to privately meet with, interview, or otherwise

communicate with DHS officials, staff, consultants, and contractors

for DHS.

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vii.

DHS shall also create and provide any aggregation or

analysis of data requested by the appointed experts.

f. In conducting their work, the experts may call upon the

MPET members previously appointed by the Court (see Doc. No. [281]) as

well as Roberta Opheim, Minnesota State Ombudsman for Mental Health

and Developmental Disabilities, as necessary.

g. The experts may convene meetings, confer with relevant

individuals and groups, attend case-related court proceedings, and review

all documents submitted to the Court. The parties shall henceforth serve

the experts with all such papers.

h. The experts shall have ex parte access to the Court and its

Technical Advisor for logistical and organizational purposes, subject to the

limitations of Rule 706.

i. To facilitate the integrity and effectiveness of the experts’

work, their communications with one another and work product (such as

draft documents, correspondence, e-mails, and conversations) shall be

privileged, confidential, and not admissible.

j. The experts’ work will be overseen and coordinated by

Magistrate Judge Jeffrey J. Keyes, with the assistance of the Court’s

Technical Advisor.

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k. The parties shall meet and confer, facilitated by the Court’s Technical Advisor if necessary, to establish an interim budget deposit for the experts and a mechanism for payment. Without prejudice to subsequent adjustment, such costs shall be initially allocated to Defendants.

Dated: February 19, 2014

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

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 CASE 0:11-cv-03659-DWF-JJK Document 275 Filed 11/09/12 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, Brian Christopher John Thuringer, Kenny S. Daywitt, and Bradley Wayne Foster,
Plaintiffs,
v.
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Greg Carlson, and Ann Zimmerman, in their individual and official capacities,
Defendants.

Civ. No. 11-cv-3659 (DWF/JJK) ORDER

The above-captioned matter was originally filed as Karjsens, et al. v. Minnesota Department of Human Services, et al., pro se, (“Karsjens”) on December 21, 2011, as a proposed class action. On January 12, 2012, attorneys for the law firm Gustafson Gluek, PLLC filed notices of appearance on this matter. On or about January 25, 2012, Chief Judge Davis issued an Order [Doc. No. 142] staying all pending pro se Minnesota Sex Offender Program (“MSOP”) cases with the exception of this matter and Thompson v. Ludeman, et al., 11-CV-1704 (DWF/JJK), and on February 6, 2012, Chief Judge Davis issued an amended order [Doc. No. 83] staying additional MSOP cases. On February 8,

CASE 0:11-cv-03659-DWF-JJK Document 275 Filed 11/09/12 Page 2 of 5
2012, Judge Frank issued an Order [Thompson, Doc. No. 146] staying the Thompson litigation. On March 15, 2012, an Amended Complaint [Doc. No. 151] was filed in Karsjens. On July 24, 2012, Judge Frank issued an Order [Doc. No. 203] certifying Karsjens as a class action. The parties have been and continue to discuss settlement of the issues raised in the Karsjens Amended Complaint.
The Court recognizes that issues relating to MSOP client treatment phase progression are issues that may be addressed through evaluation of that aspect of MSOP’s sex offender treatment program by a team of professionals who have the necessary background and experience in the evaluation of sex offender treatment programs within secure facilities.
Accordingly, IT IS HEREBY ORDERED that: 1. The Minnesota Commissioner of Human Services (“Commissioner”) shall create an evaluation team, hereinafter referred to as the “MSOP Program Evaluation Team” (“Evaluation Team”), consisting of five qualified sex offender clinical treatment professionals with the necessary knowledge and experience to evaluate sex offender treatment in a secure facility to be appointed by the Commissioner and subject to Court approval. The Evaluation Team shall include the three sex offender treatment experts contracted to perform the annual evaluation described in Minnesota Statutes, section 246B.03, subdivision 2. The parties shall meet and confer on the potential candidates for the final two Evaluation Team positions prior to final appointment by the Commissioner.
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CASE 0:11-cv-03659-DWF-JJK Document 275 Filed 11/09/12 Page 3 of 5
2. The Commissioner shall forward to the Court the names of those professionals appointed by the Commissioner to the Evaluation Team for approval no later than December 1, 2012.
3. The focus of the Evaluation Team is to address possible program issues associated with client treatment phase progression (“phase progression”). The Evaluation Team shall 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. The records reviewed shall include a random sampling of the records of at least 10% or 15 clients, whichever is higher, to a maximum of 25% of those clients identified above (at the discretion of the Evaluation Team). The Evaluation Team’s review is to supplement the annual program evaluation described in Minnesota Statutes, section 246B.03, subdivision 2.
4. As part of the Evaluation Team’s investigation of phase progression, it may consider any topic it deems related to phase progression, such as: adequacy of staffing levels and staff training; the type and amount of treatment offered; individual treatment record documentation; individual treatment plan documentation; the accuracy of client placement and progression within each treatment phase; therapeutic environment, etc.
5. No later than April 15, 2013, the Evaluation Team shall prepare and provide the MSOP Executive Director, the Court, and counsel for the parties in this litigation, with Findings and Recommendations on phase progression. The Evaluation Team shall also determine and include in its report a recommendation on the need, scope, and frequency of any future MSOP treatment program evaluation. These Findings and
3

CASE 0:11-cv-03659-DWF-JJK Document 275 Filed 11/09/12 Page 4 of 5
Recommendations on phase progression may be in addition to and reported separately from the annual program evaluation described in Minnesota Statutes, section 246B.03, subdivision 2.
6. The Executive Director shall respond in writing to the Evaluation Team’s phase progression Findings and Recommendations within thirty (30) days of receiving the Findings and Recommendations and provide that written response to the Commissioner, the Court, and counsel for the parties. The Findings and Recommendations and the Executive Director’s written responses shall also be made public. The Executive Director shall include a copy of the phase progression Findings and Recommendations, along with the Executive Director’s written responses, to the Minnesota Legislature as part of MSOP’s annual performance report submitted in January 2014 (see Minn. Stat. § 246B.035).
7. If at any time the Evaluation Team discovers in its review of files for phase progression an actual or possible violation of law, rule, or regulation, it shall immediately notify the Commissioner or the Chief Compliance Officer of the Minnesota Department of Human Services, the Court, and counsel for the parties.
8. The formation of the Evaluation Team shall not affect or impair the rights of the parties with respect to further settlement discussions or litigation in this matter.
9. In view of the formation of this Evaluation Team and continuing settlement discussions among the parties, all discovery in this matter shall be stayed for a period of sixty (60) days from the date of this Order.
4

CASE 0:11-cv-03659-DWF-JJK Document 275 Filed 11/09/12 Page 5 of 5

Dated: November 9, 2012

_s/ Jeffrey J. Keyes___________________ JEFFREY J. KEYES United States Magistrate Judge

5

 
 CASE 0:11-cv-03659-DWF-JJK Document 357 Filed 11/12/13 Page 1 of 12

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Karsjens, et al.,
Plaintiffs
v.
Lucinda Jesson, in her official capacity as Commissioner of the Minnesota Department of Human Services, et al.,
Defendants.

Civ. No. 11-3659 (DWF/JJK)
AMENDED PROTECTIVE ORDER

WHEREAS, in order to expedite the flow of discovery material, facilitate the prompt resolution of disputes over confidentiality, adequately protect non- public and/or confidential material, and ensure that protection is afforded only to material so entitled, the Court enters this Protective Order pursuant to Rule 26 of the Federal Rules of Civil Procedure. IT IS HEREBY ORDERED that:
1. As used in the Protective order, these terms have the following meanings:
“Action” means the action captioned Karsjens et al. v. Lucinda Jesson, et al., 11cv-03659 (DWF/JJK), which is currently pending in the United States District Court for the District of Minnesota, and includes amended complaints in this action and all actions that may later be coordinated and/or consolidated with this matter in the future;

CASE 0:11-cv-03659-DWF-JJK Document 357 Filed 11/12/13 Page 2 of 12
“Confidential” information may include any information within the ambit of Rule 26(c) of the Federal Rules of Civil Procedure, including information that, if publicly disclosed, may cause undue annoyance, embarrassment, or oppression. It may also include, but is not limited to, information classified as “private data on individuals,” “not public,” or “confidential” by the Minnesota Government Data Practices Act (“MGDPA”), Minn. Stat. Ch. 13; information classified as “education records” under 20 U.S.C. § 1232g (“FERPA”); and information classified as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, 45 C.F.R. Parts 160, 162, and 164 (“HIPAA”); and information classified as “substance abuse treatment information” under 42 U.S.C. § 290.dd-2; 42 C.F.R. § 2.1 to § 2.67.
“Confidential – Attorneys’ Eyes Only” documents are the subset of Confidential documents as may be designated herein. Such documents produced by Defendants to Plaintiffs’ counsel shall not be viewed by plaintiffs or prospective class members;
“Court” shall refer to the United States District Court for the District of Minnesota;
“Defendant” means any defendant named in the Complaint in the action or future amended complaints;
“Disclosure” means to show, give, produce, make available, reproduce, communicate, process, paraphrase, summarize, or excerpt, in whole or in part, by any means or medium;
2

CASE 0:11-cv-03659-DWF-JJK Document 357 Filed 11/12/13 Page 3 of 12
“Document” is defined to be synonymous in meanings and equal in scope to the usage of the term in Rule 34(a) of the Federal Rules of Civil Procedure;
“Material” means information in written, oral, graphic/pictorial, audiovisual or other form, whether it be Electronically Stored Information (”ESI”) as defined in Rule 34(a) of the Federal Rules of Civil Procedure, a document, information contained in a document, information revealed during a deposition, information revealed in an interrogatory answer, or otherwise disclosed and/or any copies or reproductions, excerpts, summaries or other ESI, documents or media that excerpt, contain, or otherwise reveal the substance of such information;
“Parties” means Defendants and Plaintiffs; “Party” means any of the Parties; “Person” means any natural person, partnership, corporation, association, or other legal entity, as well as it parents, subsidiaries, affiliates, board members, officers, employees, agents, attorneys, and representatives; “Plaintiff” means any of the Plaintiffs identified in the Complaint in the action or future amended complaints; and “Written Assurance” means an executed document in the form attached as Exhibit A. 2. A party may designate a document “Confidential” to protect information within the scope of Fed. R. Civ. P. 26(c). All “Confidential” documents, along with the information contained in the documents, shall be used
3

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solely for the purpose of this action, and no person receiving such documents shall, directly or indirectly, use, transfer, disclose, or communicate in any way the documents or their contents to any person or prospective class members other than those specified in paragraph 3. Any other use is prohibited.
3. Access to any “Confidential” document shall be limited to: (a) the Court and its staff; (b) attorneys for the parties, their law firms, and their outside vendors; (c) persons shown on the face of the document to have authored or received it; (d) the subject of the data if said person were otherwise entitled to access to the data under the MGDPA; (e) court reporters retained to transcribe testimony; and (f) outside independent persons who are retained by a party or its attorneys to furnish technical or expert services, and/or to give testimony in this action.
4. The parties shall have the right to further designate “Confidential” documents or portions of documents as “Confidential - Attorneys’ Eyes Only.” Disclosure of such information shall be limited to the persons designated in paragraph 3 (a), (b), (c), (e), and (f), and shall not be disclosed to Plaintiffs or prospective class members.
4

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Prior to the Court’s final determination of class certification, including any appeals, (a) documents designated as “Confidential - Attorneys’ Eyes Only” shall not be used to contact prospective class members, their families, legal guardians or conservators, and (b) any personally-identifying information contained therein shall be used only in a manner consistent with the Court’s Local Rules ECF procedures.
5. Any party objecting to a designation of documents and the party which designated the documents to which objection is made shall, within 14 days of the objection, meet and confer in a good faith effort to resolve the objection by agreement prior to any court action, which can be made by motion within 45 days from service of the objection.
In order to facilitate timely disclosure of a large number of documents that may contain confidential information, such documents may be produced for review at a party’s facility prior to designation as “Confidential” or “Confidential - Attorneys’ Eyes Only,” after which the party seeking discovery shall specify those documents to be copied. The production of documents in this manner shall not be deemed as a waiver of any claim of confidentiality.
6. Each person appropriately designated pursuant to paragraph 3(f) to receive confidential information shall execute a “Written Assurance” in the form attached as Exhibit A.
7. Third parties producing Documents in the course of this action may
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CASE 0:11-cv-03659-DWF-JJK Document 357 Filed 11/12/13 Page 6 of 12
also designate Documents as “Confidential” or “Confidential – Attorneys Eyes Only,” subject to the same protections and constraints as the parties to this action. A copy of this Protective Order shall be served along with any subpoena served in connection with this action. All documents produced by such third parties shall be treated as “Confidential - Attorneys Eyes Only” for a period of 14 days from the date of their production, and during that period any party may designate such documents as “Confidential” or “Confidential - Attorneys Eyes Only” pursuant to the terms of this Protective Order.
8. All depositions or portions of depositions taken in this action that contain confidential information may be designated “Confidential” and/or “Confidential Attorneys Eyes Only” and thereby obtain the protections accorded other “Confidential” and/or “Confidential - Attorneys Eyes Only” documents. Confidentiality designations for depositions shall be made either on the record or by written notice to the other party within 14 days of receipt of the transcript. Unless otherwise agreed, depositions shall be treated as “Confidential” during the 14-day period following receipt of the transcript. The deposition of any witness (or any portion of such deposition) that encompasses confidential information shall be taken only in the presence of persons who are qualified to have access to such information.
9. Any party who inadvertently fails to identify documents as “Confidential” or “Confidential - Attorneys Eyes Only” shall, promptly upon
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discovery of its oversight, provide written notice of the error and substitute appropriately-designated documents. Any party receiving such improperlydesignated documents shall retrieve such documents from persons not entitled to receive those documents and, upon receipt of the substitute documents, shall return or destroy the improperly-designated documents.
10. Until and unless waived in writing by Plaintiffs and prospective class members or otherwise ordered by the Court, if a party files a document containing confidential information with the Court, it shall do so under seal and in compliance with the Electronic Case Filing Procedures for the District of Minnesota. Prior to disclosure at trial or a hearing of materials or information designated “Confidential,” the parties may seek further protections against public disclosure from the Court. 11. Any party may request a change in the designation of any information designated “Confidential” or “Confidential - Attorneys Eyes Only.” Any such document shall be treated as designated until the change is completed. If the requested change in designation is not agreed to, the party seeking the change may move the Court for appropriate relief, providing notice to any third party whose designation of produced documents as “Confidential” or “Confidential - Attorneys Eyes Only” in the action may be affected. The party asserting that the material is “Confidential” or “Confidential - Attorneys Eyes Only” shall have the burden of proving that the information in question is within the scope of protection afforded by Fed. R. Civ. P. 26(c).
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CASE 0:11-cv-03659-DWF-JJK Document 357 Filed 11/12/13 Page 8 of 12 12. The Court has determined that the data are discoverable or releasable
pursuant to the rules of evidence and of criminal, civil, or administrative procedure appropriate to the action; that the benefit to the Class Counsel seeking access to the data outweighs any harm to the confidentiality interests of the Class Member who is the subject of the data; and in making this decision, the Court considered whether notice to the subject of the data is warranted and has determined that this protective order will assure proper handling of the data by the parties.
Therefore, to the extent not otherwise subject to attorney-client privilege and work product, Defendants may disclose or otherwise provide and Plaintiffs’ Counsel may receive in discovery, review and use for any purpose in the Action the documents and information maintained by the MSOP in Class Members’ individual treatment or medical records as well as documents and information maintained by the MSOP that discusses or otherwise addresses individual Class Members’ treatment, including substance abuse treatment information, and/or other personal information otherwise protected by the MGDPA, FERPA and/or HIPAA. Such information shall be designated as “ConfidentialAttorneys’ Eyes Only.”
The Court also specifically finds that disclosure of substance abuse treatment information is not subject to the procedures required by 42 C.F.R. § 2.64 because there are no federal funds being used at this program. All such information described in this paragraph may also be disclosed without advance notice to the individual Class Member and shall also be designated as “Confidential- Attorneys’ Eyes Only.”12. Within 60 days of the termination of this action, including any appeals, each party shall either destroy or return to the opposing party all documents designated by the opposing party as “Confidential” and “Confidential - Attorneys Eyes Only” and all copies of
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CASE 0:11-cv-03659-DWF-JJK Document 357 Filed 11/12/13 Page 9 of 12 such documents, and shall destroy all extracts and/or data taken from such documents. Each party shall provide a certification as to such return or destruction within the 60-day period. However, attorneys shall be entitled to retain a set of all documents filed with the Court and all correspondence generated in connection with the action.
13. Any party may apply to the Court for a modification of the Protective Order, and nothing in this Protective Order shall be construed to prevent a party from seeking such further provisions enhancing or limiting confidentiality as may be appropriate.
14. No action taken in accordance with the Protective Order shall be construed as a waiver of any claim or defense in the action or of any position as to discoverability or admissibility of evidence.
15. The obligations imposed by the Protective Order shall survive the termination of this action.
16. In connection with any motion filed with this Court, only those portions of a party's submission (e.g., memorandum of law, affidavit, and exhibits) which meet the requirements for treatment of protection from public filing (e.g., because they are subject to the attorney-client privilege or work product doctrine, or meet the standards articulated by Fed. R. Civ. P. 26(c)(1)(G)), shall be filed under seal. Designation of material as confidential or protected by any party pursuant to a protective order as the sole basis for filing the material under seal shall not satisfy this requirement.
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CASE 0:11-cv-03659-DWF-JJK Document 357 Filed 11/12/13 Page 10 of 12 With respect to any submission filed with the Court which is sealed and posted on
ECF with a placeholder, the sealed submission shall be sent electronically or hand
delivered to all parties and hand delivered to the Court contemporaneously with the
documents being posted on ECF.

Date: November 12, 2013

s/ Jeffrey J. Keyes JEFFREY J. KEYES United States Magistrate Judge

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CASE 0:11-cv-03659-DWF-JJK Document 357 Filed 11/12/13 Page 11 of 12

EXHIBIT A WRITTEN ASSURANCE

declares that:

I reside at

in the City of

,

County of

, State

of

. My

telephone

number

is

.

I am currently employed by

, located

at

, and my current job title is

_____________________________________________.

I have read and I understand the terms of the Protective Order dated May

31, 2012, filed in Civil No. 11cv03659 DWF/JJK, pending in the United States

District Court for the District of Minnesota. I agree to comply with and be bound by the

provisions of the Protective Order. I understand that any violation of the Protective

Order may subject me to sanctions by the Court.

I shall not divulge any documents, or copies of documents, designated

“Confidential” or “Confidential - Attorneys Eyes Only” obtained pursuant to such

Protective Order, or the contents of such documents, to any person other than those

specifically authorized by the Protective Order. I shall not copy or use such

documents except for the purposes of this action and pursuant to the terms of the

Protective Order.

CASE 0:11-cv-03659-DWF-JJK Document 357 Filed 11/12/13 Page 12 of 12

As soon as practical, but no later than 30 days after final termination of this action, I shall return to the attorney from whom I have received them, any documents in my possession designated “Confidential” or “Confidential - Attorneys Eyes Only”, and all copies, excerpts, summaries, notes, digests, abstracts, and indices relating to such documents.
I submit myself to the jurisdiction of the United States District Court for the District of Minnesota for the purpose of enforcing or otherwise providing relief relating to the Protective Order.

Executed on:

(Date)

(Signature)

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 CASE 0:11-cv-03659-DWF-JJK Document 408 Filed 12/27/13 Page 1 of 32

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

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 and Brian K. Hausfeld,
Plaintiffs, v.
Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Nancy Johnston, Janine Hebert, and Ann Zimmerman, in their individual and official capacities,
Defendants.

Court File No. 11‐CV‐03659 (DWF/JJK)
BRIEF OF AMICI CURIAE ERIC S. JANUS AND ACLU‐MN

I. Introduction The class claims invoke two distinct constitutional contexts: In the “validity context,” the class should be understood as asserting that the stable, two‐decade pattern of executive and judicial implementation, combined with the state legislature’s knowing failure to act, prove that the MSOP is constitutionally invalid. In the “residual context,” the complaint focuses on the class members’ rights that survive the massive deprivation of liberty inherent in civil commitment, and assert that these have been violated. Amici argue that the “validity context” is governed by Foucha v. Louisana, 504 U.S. 71 (1982), and its antecedents, and is focused on whether the MSOP is a bona fide
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civil commitment program, informed by a non‐punitive purpose. The “residual context” is governed by Youngberg v. Romeo, 457 U.S. 307 (1982). Strutton, so heavily relied upon by the State, is irrelevant to the validity context. Strutton v. Meade, 668 F.3d 549, 557 (8th Cir. 2012) cert. denied, 133 S. Ct. 124, 184 L. Ed. 2d 27 (U.S. 2012).
II. The validity of the MSOP program The essence of a civil commitment scheme is that it imposes a massive deprivation of liberty, totally unconstrained by the host of tight protections governing the criminal “charge and conviction” regime. If for no other reason than to protect the moral legitimacy of the criminal justice system, the boundaries of this “alternate justice system” must be vigilantly patrolled. A civil commitment system that strays outside of those boundaries is constitutionally invalid. A. Civil Commitment, unconstrained by the limits of the criminal law, invokes
the Substantive Due Process protections. The “charge and conviction” paradigm of criminal law is the primary tool for addressing antisocial behavior and social control. By design, the power of the State to deprive a person of liberty as punishment for a crime is strictly circumscribed by the Constitution. A list of these constraints includes the principle of legality (or nulla poena sine lege);1 the prohibitions against double jeopardy2 and ex post facto laws;3 the rights
1 John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 190 (1985). 2 See United States v. Halper, 490 U.S. 435, 440 (1989).
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to juries as fact finders,4 to witness confrontation,5 and to the highest standard of
proof;6 the requirement that the crime be manifest in some act (actus reus7) with
criminal intent (mens rea);8 the prohibition against criminalizing a status9 and on basing
criminal conviction on predicted, rather than committed, crimes;10 immunity from self‐
incrimination;11 prohibitions on arrest and search in the absence of some cause to
believe that a specific crime has been committed;12 and the requirement that
prosecutions be based on written charges specifying the law and the facts constituting
the crime.13
The grant of power to the State to lock people up in a civil commitment scheme is
highly consequential. Minnesota’s MSOP scheme of civil commitment eschews each
and every one of the traditional protections of the criminal law. See Appendix A. In
addition, if the State’s legal theories are correct, the circumstances confronting
individuals who are committed need not even bear the stamp of professional judgment.
3 The prohibition against ex post facto laws prevents the state from increasing a person’s criminal sentence after it was imposed. See Collins v. Youngblood, 497 U.S. 37, 41-42 (1990) (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 390-392 (1789)); Artway v. Attorney Gen. OF New Jersey, 876 F. Supp. 666 (D. N.J. 1995); Young v. Weston, 898 F.Supp. 744 (W.D. Wash. Aug. 25, 1995). 4 See generally Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (discussing general nature of right to, and importance of, jury trial). 5 See 5 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 24.4(b) (2d ed. 1999). 6 See In re Winship, 397 U.S. 358 (1970). 7 See 1 Charles E. Torcia, Wharton’s Criminal Law § 25 (15th ed. 1993). 8 See id. § 27. 9 See Paul H. Robinson, Foreword: The Criminal—Civil Distinction and Dangerous Blameless Offenders, 83 J. Crim. L. & Criminology 693 (1993). 10 See Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 3.2, at 195 (2d ed. 1986) (“[T]he common law crimes are defined in terms of act or omission to act, and statutory crimes are unconstitutional unless so defined.”). 11 See LaFave et al., supra note 5, § 6.5(a). 12 See 4 Barbara E Bergman & Theresa M. Duncan, Wharton’s Criminal Procedure § 23:6 (14th ed. 2007). 13 41 Am. Jur. 2d Indictments and Informations § 95 (2008) (“[T]he charge must be set forth with enough particularity to adequately apprise the defendant as to the exact offense being charged.”).
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On the State’s theory, anything goes in MSOP so long as it does not “shock the conscience.” And, on the state’s theory, a record of over 700 commitments with at most two conditional discharges does not “shock the conscience.”
Courts should be extremely wary of opening the door to such unregulated deprivation of liberty. This assumption of executive power is “unprecedented in this country” and “fraught with danger of excesses and injustice.” Williamson v. United States, 184 F.2d 280, 282 (2d Cir. 1950). Judicial vigilance is required.
B. Determining the constitutional validity of a civil commitment regime: substantive due process and the “forbidden purpose.”
Under the substantive branch of the due process clause, certain government actions are simply prohibited. Foucha, 504 U.S. at 80 (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)) (“the 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.’”). The Supreme Court has repeatedly set substantive boundaries on the civil commitment power of the states. See Jackson v. Indiana, 406 U.S. 715 (1972); O’Connor v. Donaldson, 422 U.S. 563 (1975); Foucha v. Lousiana, 504 U.S. 71 (1992). These limits are not explained by a conventional “compelling state interest”, “narrow tailoring” analysis. If a civil commitment scheme, narrowly tailored to addressing the admittedly compelling state interest in public safety were, ipso facto, constitutional, civil commitment would easily consume the entire
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criminal justice system. The State could substitute a pre‐crime detention system for our hallowed charge and conviction paradigm. Clearly, narrow tailoring and compelling interest are necessary, but not sufficient, for the constitutional validity of a civil commitment scheme. Foucha, 504 U.S. at 83.
Foucha frames the substantive due process question this way: does the MSOP scheme fit within “only narrow exceptions” to the “charge and conviction” paradigm, including “permissible confinements for mental illness?” An analysis of Supreme Court precedent shows that the Court examines whether a scheme is a bona fide civil commitment scheme. As the Court concluded in Kansas v. Hendricks, “Nothing on the face of the Act suggests that the Kansas Legislature sought to create anything other than a civil commitment scheme.” 521 U.S. 346, 347 (1997) (emphasis added).
Most centrally, in a bona fide commitment scheme, the state’s purpose may not be the “forbidden purpose” of punishment. Hendricks, 521 U.S. at 371 (Kennedy, J., concurring). In Hendricks, the Supreme Court called this the “threshold” matter in determining constitutional validity. Id. at 361‐2. And the Hendricks court made it clear that the “punitive purpose” inquiry begins with the state’s “disavow[al of] any punitive intent,” but does not end there. Id. at 368.
Where the State has “disavowed any punitive intent”; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from the general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible;
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and permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired, we cannot say that it acted with punitive intent. Id. at 368‐369. Punitive purpose is central to Justice Kennedy’s concurrence in Hendricks: “Confinement of such individuals is permitted … provided there is no object or purpose to punish.” Id. at 372 (Kennedy, J. concurring). And in Foucha, the Court stated this stark syllogism: “As Foucha was not convicted, he may not be punished.” Foucha, 504 U.S. at 80. The “forbidden purpose” test is a direct outgrowth of the State’s eschewal of the strict protections of the criminal justice system. Addington is the prime example of this logic. There, the State of Texas sought to deprive people of their liberty without resort to the “beyond a reasonable doubt” standard of proof. Addington v. Texas, 441 U.S. 418 (1979). The Court acquiesced, but only because “In a civil commitment state power is not exercised in a punitive sense. … [A] civil commitment proceeding can in no sense be equated to a criminal prosecution.” Id. at 428 (footnote omitted). The Court held that the “moral force” of the criminal law arises from the strict constraints that contain the state’s exercise of its most awesome power. Id. That moral force would dissipate if the constraints could be thrown off at the whim of the state. The legitimacy of the criminal law requires that its distinctive purposes – to punish and deter – be forbidden to the state outside of the criminal law. This is the essence of substantive due process.
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Like the U.S. Supreme Court, the Minnesota Supreme Court has placed the forbidden purpose inquiry at the very threshold of constitutional validity, characterizing it as the “initial question” in the determination of constitutionality. In re Linehan (hereinafter “Linehan III,” 557 N.W.2d 171, 187 (Minn. 1996).
There are three key indicia of purpose in a civil commitment scheme Given the enormity of the threat to individual liberty, it is not constitutionally sufficient for the state simply to disclaim an intent to punish. As Justice Scalia observed, “It is unthinkable that the Executive could render otherwise criminal grounds for detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was incapacitating dangerous offenders rather than punishing wrongdoing.” Hamdi v. Rumsfeld, 542 U.S. 507, 556 (Scalia, J., dissenting). Rather, the courts have identified three key indicia of proper, non‐punitive, purpose. First, the use of civil commitment must not challenge the primacy of the criminal law as the normal tool for addressing antisocial behavior. The requirement that the State must “explain why its interest would not be vindicated by the ordinary criminal processes . . ., the use of enhanced sentences for recidivists, and other permissible [means]” reflects this principle. Foucha, 504 U.S. at 82. The Court continued: “These are the normal means of dealing with persistent criminal conduct.” Id. The Minnesota Supreme Court expressed the same limitation on state power, burdening the courts with the ongoing “constitutional duty to intervene before civil
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commitment becomes the norm and criminal prosecution the exception.” Linehan III, 557 N.W.2d at 181. And in Kansas v. Crane, the Supreme Court warned that “civil commitment” must not become a “mechanism for retribution or general deterrence”— functions properly those of criminal law, not civil commitment. 534 U.S. 407, 412 (2002) (cittion omitted). See also Seling v. Young, 531 U.S. 250, 261 (2001) (“The Act did not implicate retribution or deterrence.”)
The primacy pillar is also expressed by the courts in their reliance on the stated intent to apply preventive confinement only to a “limited subclass of dangerous persons.” Hendricks, 521 U.S. at 357. A commitment statute that casts too broad a net is of doubtful validity. State of Minnesota ex rel. Pearson v. Probate Court of Ramsey Cnty., 309 U.S. 270, 274 (1940).
Second, the constitutionally required non‐punitive purpose is evidenced by the state’s promise to provide treatment. The states consistently point to this intention as evidence of the bona fides of their non‐punitive intent. In response, the courts repeatedly rested conclusions of facial validity upon this ground. In Foucha, Justice O’Connor’s pivotal concurrence made the centrality of treatment clear, insisting on a “medical justification” for civil commitment. Foucha, 504 U.S. at 88 (O’Connor, J., concurring). "I think it clear that acquittees could not be confined as mental patients absent some medical justification for doing so; in such a case the necessary connection between the nature and purposes of confinement would be absent." Id.
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In Linehan III, the Minnesota Supreme Court cited the state’s intention to provide “comprehensive care and treatment for committed sex offenders” as a central prop of constitutional validity, crediting the state’s claim that “commitment was for the purpose of treatment” in turning back a challenge to the validity of the SDP law. Linehan III, 557 N.W.2d at 187, 188. The court thought it important to memorialize the claim by the State that “treatment and rehabilitation are essential to” the mission [of the sex offender program], and to recite the promises made by the State that “each of the four phases [of the MSOP treatment program] will last approximately 8 months for model patients….” Id. at 188. In Call, the Minnesota court identified the “entitlement” to treatment as evidence showing that the psychopathic personality statute “is not for punitive or punishment purposes, but rather is remedial . . ..” Call v. Gomez, 535 N.W.2d 312, 319–20 (Minn. 1995) (explaining the holding of State ex rel. Pearson v. Probate Court of Ramsey Cnty., 287 N.W. 297, 300 (1939) aff’d sub nom. State of Minnesota ex rel. Pearson v. Probate Court of Ramsey Cnty., 309 U.S. 270 (1940)). The Court characterized the treatment as “intensive,” “well‐planned” and “well‐structured.” Id. at 319 n.5. The court relied on the state’s promise that treatment would assist patients in “obtaining discharge into the community.” Id. Believing in the good faith of the State, the court’s opinion featured the state’s representation that “[a]n average patient is expected to complete the program in a minimum of 24 months.” Id.
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Amici recite these reassuring statements about treatment, made nearly twenty years ago, to illustrate the extent and importance of the treatment promises in the adjudication of constitutional validity. In these cases, the point was not that any particular individual would be cured by treatment, but rather that the State’s claim to a non‐punitive purpose should be credited as substantive and real: the stated intent to provide treatment is a key piece of circumstantial evidence of a proper state purpose, and hence of a legitimate, bona fide civil commitment scheme.
In the case at bar, the plaintiff class claims that these promises are bankrupt— systematically, pervasively, and intentionally. Just as the courts inferred a non‐punitive purpose from these fulsome promises, so now should this court infer a punitive purpose from their utter betrayal.
Third, “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 (1972). A commitment, proper ab initio, becomes unconstitutional just as soon as the justifications for confinement cease to obtain. “It [is unconstitutional to] continue [confinement] after that basis no longer existed.” O’Connor v. Donaldson, 422 U.S. 563, 575 (1975) (citation omitted).
To be valid, a civil commitment scheme must be designed to release people as soon as they can be appropriately managed in the community. A commitment scheme without such a design is constitutionally invalid. See Zadvydas v. Davis, 533 U.S. 678
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(2001). The Minnesota Supreme Court approved the schemes “[s]o long as the statutory discharge criteria are applied in such a way that the person subject to commitment as a psychopathic personality is confined only so long as he or she continues both to need further inpatient treatment and supervision for his sexual disorder and to pose a danger to public….” Call, 535 N.W.2d at 319.
In sum, it is only the purported absence of a punitive purpose that saves the MSOP’s non‐charge‐and‐conviction massive deprivation of liberty. In judging whether the forbidden purpose is present, courts look not only to the espoused purpose of the State, but also to the objective characteristics of the program, in order to assure that states are not using civil commitment as a pretext for punishment, without the constitutional limitations that the criminal law entails. In short, MSOP must be a bona fide civil commitment program, not a sham.
C. Substantive due process limits real state practices, not just the text of laws. The Minnesota MSOP scheme has been upheld, against constitutional challenge, as a valid exercise of state power, based on the statutory language and the assurances of future implementation by state officials. The instant matter provides an entirely different context for this validity examination. No longer limited to evaluating the promises of state officials, this court has before it two decades of executive and judicial implementation, and legislative acquiesce. In this context, the court may examine the true purpose and character of the MSOP scheme to determine whether the MSOP is a
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legitimate civil commitment scheme, or is, instead, an elaborate pretext for imposing punishment without the constraints of the criminal justice system.
This case is best understood as a challenge to the constitutionality of the MSOP edifice – a complex, interrelated system grounded on state law, but enormously more than the text of the law. It is only by assessing how this complex system functions in the real world, over an extensive period of time, that a court can truly determine whether MSOP is a bona fide commitment system, or not.
The MSOP should be understood, and evaluated, as a system for long‐term preventive detention, comprising extensive bricks and mortar facilities purpose‐built over two decades, a large number of state employees, all under the direct supervision of the commissioner of human services with recurrent direct involvement of the state’s governor. It also involves ongoing and extensive involvement of the state judiciary, a highly discretionary system of referrals and prosecutorial decisions, and a cohort of private‐practice psychologists who routinely provide the highly technical risk‐ assessment and “mental abnormality” testimony that supports the civil commitment system.
Finally, such a program might have included a comprehensive continuum of supervision and care options for persons subject to commitment. The absence such options speaks as loudly as any other aspect of this system.
D. Longstanding patterns of implementation can provide evidence of the true purpose of the MSOP system
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Constitutional jurisprudence addresses the validity of state action in many contexts where the key questions of purpose (or other indicia of validity) are examined not simply facially, but also through an examination of the implementation of the state program. Seling v. Young, 531 U.S. 250 (2001) is often urged, mistakenly in our judgment, as standing for the proposition that the criminal/civil status of a law should not be judged by the characteristics of the implementation of that law. As we show, Seling is inapposite in this case, and does not in any way diminish the long history of implementation‐based assessments of constitutional validity.
In Seling, the Supreme Court held that a “civil” statute could not be transformed into a “criminal” statute for purposes of Double Jeopardy and Ex Post Facto Analysis, based solely on the “punitive” application of the statute to a single individual. Seling, 561 U.S. at 263. Seling is inapposite for three reasons. First, the case at bar involves claims under the due process clause, which the Seling court explicitly excluded from its analysis. Id. at 266. Second, the case at bar involves a system, rather than individual analysis. Id. at 264. While legislative intent should not be judged by the potential vagaries of implementation, this case involves long‐term, stable patterns from which purpose is properly inferred. Third, Seling specifically does not address the question Amici suggest is before the court: whether an admittedly “civil” statutory scheme and the edifice built upon it, partakes of the purpose forbidden to such civil commitment schemes – punishment. Our analysis does not ask the court to change the nature of a
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statute from civil to criminal, but rather to determine whether a civil scheme is invalid because it has strayed, as a matter of purpose, into forbidden territory.
The penultimate sentence of the Court’s opinion, as well as Justice O’Connor’s repeated careful language throughout, emphasize Seling limited reach: “ An Act, found to be civil, cannot be deemed punitive ‘as applied’ to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release.” Id. at 267.
The Ex Post Facto claim, and by the Court’s extension, the Double Jeopardy claim —turn on the nature of the statute under consideration. Substantive Due Process claims, in contrast, address state actions, a broader category that includes executive as well as legislative acts. The case at bar involves an assessment of the purpose underlying a complex and interrelated system ‐ legislative, executive, and judicial ‐ that comprises MSOP.
Justice Scalia’s concurrence in Seling provides strong support for the relevance of systemic‐implementation evidence, even in the narrow “statute‐centric” Ex Post Facto and Double Jeopardy contexts. Seling, 531 U.S. at 267 (Scalia, J., concurring). At first reading, Scalia seems to reject the possibility, left open by the majority, that a “court may look to actual conditions of confinement and implementation of the statute to determine . . . whether a confinement scheme is civil in nature.” Id. In the Ex Post Facto, Double Jeopardy context, Justice Scalia believes that the resolution of the civil/criminal
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question “depends upon the intent of the legislature.” Id. at 269. But he acknowledges
that post‐enactment implementation might provide relevant evidence, even where the
inquiry is limited to legislative intent and purpose:
The short of the matter is that, for Double Jeopardy and Ex Post Facto Clause purposes, the question of criminal penalty vel non depends upon the intent of the legislature…. When, as here, a state statute is at issue, the remedy for implementation that does not comport with the civil nature of the statute is resort to the traditional state proceedings that challenge unlawful executive action; if those proceedings fail, and the state courts authoritatively interpret the state statute as permitting impositions that are indeed punitive, then and only then can federal courts pronounce a statute that on its face is civil to be criminal. Such an approach … avoids federal invalidation of state statutes on the basis of executive implementation that the state courts themselves, given the opportunity, would find to be ultra vires. Seling, 531 U.S. at 269‐70 (Scalia, J., concurring) (footnotes and citations omitted, emphasis added). The scenario envisioned by Justice Scalia describes precisely the MSOP program
as it has been implemented over the past two decades. The Minnesota appellate courts
have had over 400 opportunities to enforce appropriate limits on the MSOP program.
The Minnesota courts have explicitly refused to consider a systemic challenge to the
implementation of these laws. In re Civil Commitment of Travis, 767 N.W.2d 52, 58
(Minn. Ct. App. 2009) (refusing to consider systemic challenge to MSOP validity). They
have refused to set standards for judging what level of risk is sufficient for commitment.
In re Civil Commitment of Ince, No. A12‐1691, 2013 WL 1092438, at *13‐14 (Minn. Ct.
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App. Mar. 18, 2013) (Johnson, C.J., concurring specially), rev. granted (May 29, 2013). They have, at almost every turn, removed impediments to commitment.
There can be no question that the as‐implemented features of the MSOP program have been created, reviewed – and approved – by the Minnesota courts. If these features are inconsistent with a non‐punitive purpose, the 400‐plus holdings of the appellate courts should satisfy even Justice Scalia’s standard for leaving the authoritative interpretation and implementation of state statutes to state courts. Add to this the explicit statements of Governor Pawlenty and Governor Dayton, and the long‐term refusal of the Minnesota Legislature to intervene in the face of clear constitutional concern. A court, in the face of this, would be justified in drawing the conclusion that the patterns of implementation are not random, temporary or rogue, but rather reflect the official purpose of the MSOP system, established by the legislature, ordered, built and operated by the executive, and approved by the courts of the State of Minnesota.
E. Implementation evidence is routinely considered in “forbidden purpose” cases.
For over a century, the Supreme Court has examined patterns of executive implementation in a wide variety of circumstances to determine “purpose” for constitutional purposes.
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Begin with Yick Wo v. Hopkins, 118 U.S. 356, (1886), in which the Court stated that even if “the law itself be fair on its face, and impartial in appearance,” if it is “applied and administered by public authority with an evil eye and an unequal hand,” it is “still within the prohibition of the constitution.” Id. at 373–374. The Court went even further and stated that it was “not obliged to reason from the probable to the actual . . . for the cases present the ordinances in actual operation….” Id. at 373. The Court concluded that the “the facts shown establish an administration directed so exclusively against a particular class of persons” that “whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration … with a mind so unequal and oppressive as to amount to a practical denial … of that equal protection of the laws which is secured to the petitioners.” Id.
Justice Stewart’s concurrence in Washington v. Davis, 426 U.S. 229 (1976) (Stewart, J., concurring) takes the position that impact can be very probative evidence of the government’s purpose because “normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation.” Id. at 253
In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court examined wide‐ranging circumstantial evidence to determine the purpose of a facially neutral set of ordinances. “Here [in the Free Exercise context], as in
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equal protection cases, we may determine the city council's object from both direct and circumstantial evidence.” Id. at 540 (citation omitted). This circumstantial evidence extended to post‐enactment implementation practices, including interpretations by the Attorney General and the state courts. “It becomes evident that these ordinances target Santeria sacrifice when the ordinances' operation is considered. Apart from the text, the effect of a law in its real operation is strong evidence of its object.” Id. at 535. The Court cites Fowler v. Rhode Island, 345 U.S. 67 (1953), stating “we found that a municipal ordinance was applied in an unconstitutional manner when interpreted to prohibit preaching in a public park by a Jehovah's Witness but to permit preaching during the course of a Catholic mass or Protestant church service.” Lukumi, 508 U.S. at 533.
Ferguson v. City of Charleston, 532 U.S. 67 (2001), involved a scheme organized by a public hospital, city police, and prosecutors to screen pregnant women for drug use. The women claimed the tests were warrantless and nonconsensual searches, and thus were unconstitutional. The public officials defended by claiming that the searches were reasonable because they were “justified by special non‐law‐enforcement purposes.” Id. at 73. The key question was whether the scheme was informed by a forbidden purpose, law enforcement.
The court examined the “purpose actually served” by the policy. Id. at 81. “In looking to the programmatic purpose, we consider all the available evidence in order to
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determine the relevant primary purpose.” Id. (Emphasis added). The court emphasized the actual implementation of the policy: “the Charleston prosecutors and police were extensively involved in the day‐to‐day administration of the policy. Police and prosecutors decided who would receive the reports of positive drug screens and what information would be included with those reports.” Id. at 82.
In City of Indianapolis v. Edmond, 531 U.S. 32 (2000), the Supreme Court examined a program of drug interdiction checkpoints, searching for a forbidden purpose. Recognizing that government programs “driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar,” the Court “examine[d] the available evidence to determine the primary purpose of the checkpoint program. While we recognize the challenges inherent in a purpose inquiry, courts routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive governmental conduct from that which is lawful.” Id. at 46‐47.
In the First Amendment establishment of religion context, the Court has frequently acknowledged that “While the Court is normally deferential to a State's articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.” Edwards v. Aguillard, 482 U.S. 578 (1987). Similarly, in Wallace v Jaffee, 472 U.S. 38, 64 (1985), Justices Powell and O’Connor both emphasized that “[the state’s] secular purpose must be ‘sincere’; a law will not pass constitutional
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muster if the secular purpose articulated by the legislature is merely a ‘sham.’” Id. at 586–87 (Powell, J., concurring). Justice O’Connor’s concurrence is similar:

Id. at 75.

It is of course possible that a legislature will enunciate a sham secular purpose for a statute. I have little doubt that our courts are capable of distinguishing a sham secular purpose from a sincere one, or that the Lemon inquiry into the effect of an enactment would help decide those close cases where the validity of an expressed secular purpose is in doubt.

In Keevan v. Smith, 100 F.3d 644 (8th Cir. 1996), the Eighth Circuit examined post‐

hoc implementation to determine whether governmental “decisions” had a forbidden

discriminatory purpose under the Equal Protection Clause. As with Establishment

Clause analysis, the court looked to the impact or effects of the statute as a part of

deciding whether the statute was enacted with an unconstitutional purpose. Id. at 650.

More recently, in Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013), the Supreme

Court relied heavily on post‐enactment circumstances to invalidate Section 4(b) of the

Voting Rights Act, which contains the coverage formula used to determine the

jurisdictions subjected to preclearance based on their history of discrimination. The

1966 formula in Katzenbach “looked to cause (discriminatory tests) and effect (low

voter registration and turnout), and tailored the remedy (preclearance) to those

jurisdictions exhibiting both.” Id. at 2627. This coverage is based on “decades‐old data

and eradicated practices.” Id. The Court points to facts outside of the face of the

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statute to show that racial disparity once existed in these jurisdictions, making this test appropriate, but now, “There is no longer such a disparity”. Id. at 2628. The Court invalidates part of the Act based on this theory. Referring to the “purpose” of the Constitution and the legislation, the Court states, “To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past.” Id. at 2629.
F. Strutton, by its own terms, governs the “residual” rights context, and is inapposite in the “validity” context.
The instant case poses a question that differs in kind from the issue in Strutton v. Meade, 668 F.3d 549, 557 (8th Cir. 2012) cert. denied, 133 S. Ct. 124, 184 L. Ed. 2d 27 (U.S. 2012). Here, two decades of persistent executive and judicial implementation, and clear legislative acquiescence, call into question the constitutional validity of the entire scheme. Strutton, in contrast, dealt only with the individual’s constitutional rights while subject to an admittedly valid civil commitment.
Strutton has its roots in Youngberg v. Romeo, 457 U.S. 307 (1982). In both Youngberg and Strutton, the plaintiffs did not challenge the legitimacy of their initial commitments. The question, as framed by the courts, was which constitutional rights “survive” the imposition of a legitimate civil commitment. As the Youngberg court put it: “The mere fact that Romeo has been committed under proper procedures does not
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deprive him of all substantive liberty interests under the Fourteenth Amendment.” Youngberg, 457 U.S. at 315. The Court’s conclusion: “a right to freedom from bodily restraint … survives criminal conviction and incarceration. Similarly, it must also survive involuntary commitment.” Id. at 316 (Emphasis added).
Strutton, too, dealt with the conditions of confinement, not with the validity of the confinement itself. Similarly, in Bailey v. Gardebring, 940 F.2d 1150 (8th Cir. 1990), cited by Strutton, which also addresses the nature of the constitutional rights remaining for a person who was civilly committed for purposes of safe‐keeping, “the legitimacy of [the civil] commitment is not in doubt.” Id. at 1154.
Strutton’s “shocks the conscience” standard is the Eighth Circuit’s assessment of the rights that survive a valid civil commitment. As such, the standard has no direct applicability to the question of validity. The inapplicability of Strutton is further highlighted by the fact that the Eighth Circuit took pains to distinguish between claims that amount to a violation of state law (and therefore not actionable under Federal constitutional law) and claims that establish that a particular state action is sufficiently egregious (and therefore actionable as a violation of the constitutional right to substantive due process). Strutton, 668 F.3d at 557. Concluding that Strutton’s due process claim was based on an alleged violation of the state statutory mandate to provide treatment, the claim was based on a violation of state law which required a showing that the state action was “truly egregious and extraordinary” (i.e. “shocks the
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conscience”) in order to succeed. Id. (See Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104–05 (8th Cir.1992)). In the case at bar, plaintiffs’ forbidden purpose claim is based on Federal Constitutional law, and not on state law.
Unlike Strutton, the case at bar raises a broader question as to the fundamental constitutional validity of Minnesota’s entire sex offender civil commitment program. In the context of this class action lawsuit, the court should reject the Strutton “shocks the conscience” standard as inapposite, and instead hold that the totality of the state’s actions in creating and implementing the Minnesota Sex Offender Program – the statute passed by the Legislative branch, the program implemented by the state Executive branch, and the judicial blessing of commitment decisions made by the state Judiciary, and the active and knowing acquiescence in the scheme’s implementation by the state legislature – does not pass muster under the federal Constitution, because those actions reveal that the true purpose of the MSOP is a forbidden purpose.
G. Systemic, persistent evidence of implementation provides a basis for the Court’s inference that the MSOP scheme is infected by the forbidden purpose of punishment.
The Plaintiff class has detailed the evidence of implementation, in particular the glaring absence of any discharge from the program. Here, we simply emphasize several aspects of the implementation. The courts of the State of Minnesota have been deeply
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involved in the creation and implementation of the MSOP system as it exists today. There can be no question that the program is the result of both executive implementation and judicial approval. And, as Plaintiffs have argued, the legislature’s knowing inaction in the face of explicit and clear evidence of the need for reform provides strong support that the pattern of implementation has the blessing of the legislature.
1. The Minnesota Judiciary has actively approved, or refused to review, the implantation of MSOP.
We begin by noting that the Minnesota appellate courts have addressed the MSOP system in more than 400 decisions. Of these, only six have reversed judgments of commitment on the merits14 (six more have reversed an individual’s SPP commitment while affirming his SDP commitment).15 Of the six commitment reversals, five were in 1994 or 1993. In the past 20 years, only one SDP commitment has been reversed on the
14 See In re Civil Commitment of Lingl, A12-0738, 2012 WL 5188139 (Minn. Ct. App. Oct. 22, 2012), review denied (Jan. 15, 2013); Matter of Linehan, 518 N.W.2d 609, 614 (Minn. 1994); In Matter of Hince, C9-94-1366, 1994 WL 637755 (Minn. Ct. App. Nov. 15, 1994); Matter of Rickmyer 519 N.W.2d 188, 189 (Minn. 1994); Matter of Schweninger, 520 N.W.2d 446 (Minn. Ct. App. 1994); In re Rodriguez, 506 N.W.2d 660, 663 (Minn. Ct. App. 1993). See also, In re Civil Commitment of Giem, 742 N.W.2d 422, 433 (Minn. 2007) (reversing “without prejudice” on procedural grounds).
15 See In re Civil Commitment of Johnson, A10-1701, 2011 WL 1546559 (Minn. Ct. App. Apr. 26, 2011); In re Civil Commitment of Buckner, A09-1420, 2009 WL 4574169 (Minn. Ct. App. Dec. 8, 2009; In re Civil Commitment of White, A05-1474, 2005 WL 3112024 (Minn. Ct. App. Nov. 22, 2005); In re Robb, 622 N.W.2d 564, 572 (Minn. Ct. App. 2001); Matter of Lindberg, CX-97-855, 1997 WL 600584 (Minn. Ct. App. Sept. 30, 1997) (reversing finding of Mentally Ill and Dangerous while affirming SDP commitment); In re Mentzos, C3-95-2331, 1996 WL 81721 (Minn. Ct. App. Feb. 27, 1996).
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merits. In contrast, during the same period, the appellate courts have reversed lower‐ court decisions dismissing petitions in six cases.16
The appellate courts have played almost no role in assuring that only the “most dangerous” would be committed. In In re Civil Commitment of Ince, A12‐1691, 2013 WL 1092438 (Minn. Ct. App. Mar. 18, 2013) Chief Judge Johnson’s analysis in his concurrence describes the failure of the Minnesota courts over nearly two decades to give any meaningful content to the standards for commitment. “The lack of a clear and definite legal standard is in tension with fundamental notions of the rule of law. A statute that may deprive a person of his or her liberty should have ‘an understandable meaning with legal standards that courts must enforce.’” Id. at *14 (Johnson, J., concurring) (quoting Giaccio v. Pennsylvania, 382 U.S. 399, 403 (1966)). He observed that the Minnesota courts had failed to set such standards: “Seventeen years after Linehan III, however, the precedential case‐by‐case determinations on this issue are too few in number and too general in their discussion.” Id. at *15.
And Judge Stauber, in dissent, points out that dangerousness testimony and district court findings are couched within “credibility assessments insulated from appellate review. Given this standard of review, it will continue to be almost impossible to overturn even borderline cases . . . .” Id. at *24 (Stauber, J., dissenting).
16 See In re Civil Commitment of Stone, A09-0574, 2009 WL 2998131 (Minn. Ct. App. Sept. 22, 2009); In re Civil Commitment of Baker, A08-2160, 2009 WL 1182556 (Minn. Ct. App. May 5, 2009); In re Commitment of Tolbert, A08-0395, 2008 WL 3898457 (Minn. Ct. App. Aug. 26, 2008); In re Commitment of Beaulieu, 737 N.W.2d 231, 234 (Minn. Ct. App. 2007); In re Civil Commitment of Martin, 661 N.W.2d 632, 634 (Minn. Ct. App. 2003); In re Ashman, C8-98-2078, 1999 WL 262147 (Minn. Ct. App. May 4, 1999) aff'd, 608 N.W.2d 853 (Minn. 2000).
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When the appellate courts have weighed in, they have with some uniformity approved lax, rather than strict, interpretations of the criteria for commitment. For example, with regard to future prediction of sexually dangerous behavior, the predicted behavior need not be violent or especially severe. In re Robb, 622 N.W.2d 564, 573 (Minn. Ct. App. 2001). Individuals with ratings on actuarial risk assessment instruments indicating moderate and even low risk have been civilly committed. See, e.g., In re Commitment of Schmidt, No. A10‐1588, 2011 WL 781343, at *3 (Minn. Ct. App. Mar. 08, 2011) (approving commitment of an individual whose risk on the MnSOST‐R was below 50%); In re Lueck, No. A10‐18, 2010 WL 3744394, at *3 (Minn. Ct. App. Sept. 28, 2010) (approving commitment of individual with re‐offense risk of 19% on the STATIC‐99 risk assessment tool); In re Civil Commitment of Cermak, No. A09‐1080, 2009 WL 3736196, at *2 (Minn. Ct. App. Nov. 10, 2009) (approving commitment of person with score of 9 on MnSOST‐R); In re Commitment of Garza, No. A08‐0288, 2008 WL 2889700, at *4 (Minn. Ct. App. Jul. 29, 2008) (approving commitment of person with MnSOST‐R score of 2); In re Holden, 2001 WL 683004, at *4 (approving commitment of person whose MnSOST‐R score indicated a “low” risk of re‐offense). Indeed, risk predictions need not be based on state‐of‐the‐art science, such as actuarial risk assessment instruments. See Linehan IV, 557 N.W.2d at 191 (“[D]angerousness prediction under the SDP Act is not simply a matter for statisticians.”). The courts have never subjected risk assessment testimony to any form of searching reliability review normally applied to expert or
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scientific testimony. See, e.g., In re Schultz, No. CX‐99‐1296, 1999 WL 1100941, at *5 (Minn. Ct. App. Nov. 30, 1999); In Matter of Martinelli, No. C6‐98‐569, 1998 WL 613845, at *6 (Minn. Ct. App. Sept. 15, 1998); Matter of Clements, 440 N.W.2d 133, 135‐36 (Minn. Ct. App. 1989) (all characterizing questions about expert's testimony as determinative of "weight” and “credibility," not admissibility). And the courts have never insisted that risk assessment testimony be presented in quantified form with information about error rates and confidence intervals. Thus, risk assessment decisions are largely subjective, relying on idiosyncratic judicial and expert definitions of "highly likely."
The persistent failure of the courts to police the “most dangerous” aspect of MSOP has had consequences in the profile of the people actually subjected to commitment. A recently published study by Minnesota Department of Corrections researcher Grant Duwe endeavored to determine the profile of individuals who have been chosen for civil commitment in Minnesota.17 The study found that the four‐year recidivism rate for the 105 individuals civilly committed between 2004 and 2006 would have been somewhere between 5.2 percent and 15.6 percent within four years had they not been civilly committed. Id. at 6. While this number was slightly higher than the likely recidivism rate for offenders who were not civilly committed, the study concluded that civilly committing those 105 offenders resulted in a reduction of the state’s overall
17 Duwe, G., To what extent does civil commitment reduce sexual recidivism? Estimating the selective incapacitation effects in Minnesota, Journal of Criminal Justice (2013), available at http://dx.doi.org/10.1016/j.jcrimjus.2013.06.009 . Nelson Affidavit, Exhibit 1.
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four‐year sexual recidivism rate of less than half of one percent (reduction from 3.2% to 2.8%). Id. This result suggests that Minnesota’s civil commitment program, has only has a negligible impact on overall public safety. While every reduction in sexual violence is desirable, a reduction in sexual recidivism of 0.4% can hardly support the conclusion that only a narrow group of the “most dangerous” is being civilly committed.
Moreover, the Duwe study found that the lifetime recidivism rate for the 105 individuals was at most 36 percent. Conversely, “…nearly two‐thirds of these offenders would be unlikely to be rearrested for another sex offense in their lifetime if they were released to the community. In other words, for every true positive, there are likely two false positives.” Id. at 8. Applying this “false positive” rate to the 700‐plus people who have been committed, we can conclude that in its twenty‐year history the Minnesota courts have likely committed over 462 human beings who, had they been released, would not have been arrested for a new sex crime. In exchange, the program has likely reduced the overall rate of recidivism in Minnesota by 0.4%.
In In re Civil Commitment of Travis, 767 N.W.2d 52 (Minn. Ct. App. 2009), the Minnesota Court of Appeals had the opportunity to address a systemic investigation of the MSOP program and definitively rejected the opportunity. The district court had indicated its intention to examine the bona fides of the MSOP scheme:
It is alarming when one compares the current near zero “success” rates of the program with the fact that at least some of the earlier laws had eventually released as many as 50 percent of those committed. As a result, rather than
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being a “step away” from confinements for dangerousness alone, the actual implementation of the SDP/SPP laws suggest a regime of [preventive] detention itself, heretofore anathema to due process. Id. at 56 (quoting the district court’s order). The court of appeals framed the issue this way: “Can the district court examine substantive due process in a challenge to the constitutional purpose of civil commitment statutes by investigating treatment in practice and thus by studying the experiences of others?” Id. at 56‐57. The Court of Appeals unambiguously and authoritatively prohibited the district court from undertaking the very same examination that is now before this court. 2. The Legislature has knowingly acquiesced in an unconstitutional implementation of the MSOP program. Despite mounting evidence that the MSOP suffered significant defects, the Legislature has done nothing to correct the problems. Indeed, the legislature has addressed the MSOP program, but the changes have been largely cosmetic. See 2013 Laws of Minnesota, Ch. 49 §9 (recodifying and combining SPP and SDP sections). This in spite of overwhelming red flags that were identified by its own Legislative Auditor including that:  Minnesota has the highest per‐capita population of civilly committed Sex Offenders in the nation;
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 There is significant variance (34‐64%) among judicial districts in the rate of commitments;
 Minnesota has no less restrictive alternatives to commitment in a high security facility despite the law’s provision allowing consideration of less restrictive alternatives;
 MSOP struggles to provide adequate treatment and maintain a therapeutic environment; and
 In the nearly twenty years that the program has been in operation, no civilly committed sex offender has ever been discharged, likely due to problems in the treatment program over the years, an executive order discouraging discharges, the abasecne of any meaningful community‐based services suitable for supervising released offenders, and a release standard that is stricter than most other states which allow for discharge when an offender no longer meets the commitment criteria.
See Office of the Legislative Auditor, State of Minnesota, Evaluation Report: Civil Commitment of Sex Offenders (March 2011), available at http://www.auditor.leg.state.mn.us/ped/pedrep/ccso.pdf
The OLA report laid bare the significant problems that have existed within Minnesota’s program. Far from being a civil law with the purpose of providing treatment, the main goal of MSOP appears instead to be punitive preventive detention.
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In spite of the OLA report and comprehensive recommendations, the Legislature has failed to implement the lion’s share of recommendations.
Most recently, in its last session, the Legislature ignored the unequivocal recommendation of the Task Force appointed by this Court.
III. Remedy The Court, after reviewing the clear and stable patterns of implementation of the MSOP over the past two decades, should conclude that the program rests on the forbidden purpose of punishment, and is thus constitutionally invalid. The remedy for such invalidity need not be the immediate shut‐down of the program. Rather, in our view, the appropriate remedy would be to afford the State a reasonable opportunity to reshape the program by ridding it of its punitive purpose. With two decades of circumstantial evidence of a punitive purpose, it is long past time for the State to rely on espousals and promises. Rather, the Court should require the State to take the concrete steps that are required to transform the MSOP from a sham, to a bona fide civil commitment program.
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DATED: December 27, 2013

Respectfully submitted,
_s/ Eric S. Janus______________ Eric S. Janus (ID #49700) 875 Summit Avenue St. Paul, MN 55105 651‐290‐6310
Teresa Nelson #269736 American Civil Liberties Union of Minnesota 2300 Myrtle Ave, Suite 180 St Paul, MN 55114‐1879 651 645‐4097
Attorneys for Amici Curiae

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 CASE 0:11-cv-03659-DWF-JJK Document 468 Filed 06/02/14 Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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) ORDER TO SHOW CAUSE

This matter is before the Court on a report by the Court-appointed experts dated May 18, 2014 (“Expert Recommendation”), which is attached as a sealed exhibit to this Order. (Ex. 1.)
BACKGROUND 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.) On February 19, 2014, the Court ordered that the experts begin their work, in part, by “[i]dentifying residents who are not receiving appropriate services and making recommendations related thereto.” (Doc. No. 427 at 72.) The experts were also ordered to prioritize their evaluations of those

CASE 0:11-cv-03659-DWF-JJK Document 468 Filed 06/02/14 Page 2 of 4
individuals residing in the Young Adult Unit, the Assisted Living Unit, and the
Alternative Program Units. (Id. at 70 n.54, 72.)
DISCUSSION The Court has received the Expert Recommendation dated May 18, 2014, which it
has filed under seal as an attachment to this Order. (Ex. 1.) The Expert
Recommendation includes a summary and discharge recommendation for an individual
who the Court will identify only as “E.T.” (Id.) E.T. has “no adult criminal history” and
was 19 years old when committed to MSOP. (Id. at 1.) According to the experts, E.T.’s
commitment to MSOP “was as a result of behavior that he engaged in between the ages
of 10 and 14.” (Id.) E.T.’s file also apparently makes reference to incidents that occurred
while he was in juvenile placement facilities, and for which no charges were filed against
him. (See id. at 1-2.) The experts opine that it “is likely” that E.T.’s “history of general
delinquency,” including “fighting, running away,” and “engaging in rule violating
behaviors,” contributed to his commitment to MSOP. (Id. at 2.) In their report, the
experts ultimately conclude that:
[E.T.] has no adult criminal history. The sexual offending behavior leading to his indefinite placement at MSOP occurred while he was a juvenile only. There is good reason to believe that these sexual offenses were influenced by his own history of sexual victimization and a lack of understanding as to how to deal with his trauma. These and other problematic behaviors were likely exacerbated by his ADHD status and untreated complex trauma. Overall, there is little evidence to suggest that [E.T.] is a dangerous sexual offender who poses a significant risk to public safety. As such, the panel unanimously agrees that [E.T.] should be unconditionally discharged from MSOP.
(Id. at 4.) The experts further identify a family member with whom E.T. would be
welcome to live and work upon discharge. (Id.) Additionally, the experts state that E.T. 2

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“has been medication compliant since arriving at MSOP.” (Id. at 2.) They also note that
“[i]t appears that [E.T.] completed treatment related to his sexual offending history prior
to placement at MSOP” and that “[i]t is unlikely that he requires additional intervention
in this regard.” (Id.)
In support of their conclusions, the experts discuss E.T.’s pertinent history and
treatment participation at MSOP. (Id. at 2-3.) The experts also highlight risk assessment
processes for juveniles and state the following:
The literature on sexual offender risk assessment is clear that juveniles are not just “small adults”; specialized tools and methods are required for use with this population. Research also shows a strong effect of aging on risk in the juvenile population, in that most sexual offending committed by juveniles is linked more to development than to deviance, per se. Use of actuarial methods is common amongst adult sexual offenders, but the literature is cautionary with respect to the use of such methods with youth. In particular, those tools that have been developed for use with juveniles have only short-term predictive validity; there are no tools in common use that profess to provide long-term predictive validity in juveniles.
It is also important to note that research on juvenile sexual offenders suggests that they have low recidivism rates and that they are more similar to other justice-involved juveniles than adult sexual offenders. In fact, most juveniles who engage in sexually abusive behaviors do not continue to offend sexually during adulthood (only 4.3% are arrested for a sexual offense as an adult). This finding is most likely due to the fact that juvenile offending behaviors are driven by different issues than those that drive adults to commit sexual offenses (e.g., more opportunistic than predatory, curiosity based, related to social problems, less compulsive). Moreover, juveniles are more amenable to change than adults and, as such, those who engage in sexually abusive behaviors during youth are more responsive to interventions.
(Id. at 3.)
In light of the Expert Recommendation with respect to E.T., as well as the Court’s
prior order on Defendants’ motion to dismiss and Plaintiffs’ requests for injunctive relief
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(Doc. No. 427), the Court orders Defendants to show cause why E.T.’s continued confinement is not unconstitutional and why E.T. should not be immediately and unconditionally discharged from MSOP, as unanimously recommended by the experts.
ORDER Based upon the foregoing, and the files, records, and proceedings herein, IT IS HEREBY ORDERED that: 1. Defendants shall show cause why E.T.’s continued confinement at MSOP does not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 2. Defendants shall show cause why E.T. should not be immediately and unconditionally released from MSOP. 3. Defendants shall show cause in the form of a written brief to be filed with the Court on or before June 11, 2014. 4. Plaintiffs shall file a responsive brief on or before June 18, 2014. 5. Counsel for the parties shall appear before the Court for a hearing on this matter on June 25, 2014 at 2:00 p.m. in Courtroom 7C, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota.

Dated: June 2, 2014

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

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 CASE 0:11-cv-03659-DWF-JJK Document 518 Filed 07/01/14 Page 1 of 12

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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.

Civ. No. 11-3659 (DWF/JJK)
SECOND AMENDED PROTECTIVE ORDER

WHEREAS, in order to expedite the flow of discovery material, facilitate the prompt resolution of disputes over confidentiality, adequately protect non- public and/or confidential material, and ensure that protection is afforded only to material so entitled, the Court enters this Protective Order pursuant to Rule 26 of the Federal Rules of Civil Procedure. IT IS HEREBY ORDERED that:
1. As used in the Protective order, these terms have the following meanings: “Action” means the action captioned Karsjens et al. v. Lucinda Jesson, et al., 11-cv-03659 (DWF/JJK), which is currently pending in the United States District Court

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for the District of Minnesota, and includes amended complaints in this action and all actions that may later be coordinated and/or consolidated with this matter in the future;
“Confidential” information may include any information within the ambit of Rule 26(c) of the Federal Rules of Civil Procedure, including information that, if publicly disclosed, may cause undue annoyance, embarrassment, or oppression. It may also include, but is not limited to, information classified as “private data on individuals,” “not public,” or “confidential” by the Minnesota Government Data Practices Act (“MGDPA”), Minn. Stat. Ch. 13; information classified as “education records” under 20 U.S.C. § 1232g (“FERPA”); and information classified as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, 45 C.F.R. Parts 160, 162, and164 (“HIPAA”); and information classified as “substance abuse treatment information” under 42 U.S.C. § 290.dd-2; 42 C.F.R. § 2.1 to § 2.67.
“Confidential – Attorneys’ Eyes Only” documents are the subset of Confidential documents as may b e designated herein. Such documents produced by Defendants to Plaintiffs’ counsel shall not be viewed by plaintiffs or prospective class members;
“Court” shall refer to the United States District Court for the District of Minnesota;
“Defendant” means any defendant named in the Complaint in the action or future amended complaints;
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“Disclosure” means to show, give, produce, make available, reproduce, communicate, process, paraphrase, summarize, or excerpt, in whole or in part, by any means or medium;
“Document” is defined to be synonymous in meanings and equal in scope to the usage of the term in Rule 34(a) of the Federal Rules of Civil Procedure;
“Including” means “including but not limited to;” “Material” means information in written, oral, graphic/pictorial, audiovisual or other form, whether it be Electronically Stored Information (”ESI”) as defined in Rule 34(a) of the Federal Rules of Civil Procedure, a document, information contained in a document, information revealed during a deposition, information revealed in an interrogatory answer, or otherwise disclosed and/or any copies or reproductions, excerpts, summaries or other ESI, documents or media that excerpt, contain, or otherwise reveal the substance of such information; “Non-parties” or “non-party” means any individual or otherwise who is not a “Party.” “Parties” means Defendants and Plaintiffs; “Party” means any of the Parties; “Person” means any natural person, partnership, corporation, association, or other legal entity, as well as its parents, subsidiaries, affiliates, board members, officers, employees, agents, attorneys, and representatives; “Plaintiff” means any of the Plaintiffs identified in the Complaint in the action or future amended complaints; and
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“Written Assurance” means an executed document in the form attached as Exhibit A.
2. A party may designate a document “Confidential” to protect information within the scope of Fed. R. Civ. P. 26(c). All “Confidential” documents, along with the information contained in the documents, shall be used solely for the purpose of this action, and no person receiving such documents shall, directly or indirectly, use, transfer, disclose, or communicate in any way the documents or their contents to any person or prospective class members other than those specified in paragraph 3. Any other use is prohibited.
3. Access to any “Confidential” document shall be limited to: (a) the Court and its staff; (b) attorneys for the parties, their law firms, and their outside vendors; (c) persons shown on the face of the document to have authored or received it; (d) the subject of the data if said person were otherwise entitled to access to the data under the MGDPA; (e) court reporters retained to transcribe testimony; and (f) outside independent persons who are retained by a party or its attorneys to furnish technical or expert services, and/or to give testimony in this action.
4. The parties shall have the right to further designate “Confidential” documents or portions of documents as “Confidential - Attorneys’ Eyes Only.”
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Disclosure of such information shall be limited to the persons designated in paragraph 3 (a), (b), (c), (e), and (f), and shall not be disclosed to Plaintiffs or prospective class members.
Prior to the Court’s final determination of class certification, including any appeals, (a) documents designated as “Confidential - Attorneys’ Eyes Only” shall not be used to contact prospective class members, their families, legal guardians or conservators, and (b) any personally-identifying information contained therein shall be used only in a manner consistent with the Court’s Local Rules ECF procedures.
5. Any party objecting to a designation of documents and the party which designated the documents to which objection is made shall, within 14 days of the objection, meet and confer in a good faith effort to resolve the objection by agreement prior to any court action, which can be made by motion within 45 days from service of the objection.
In order to facilitate timely disclosure of a large number of documents that may contain confidential information, such documents may be produced for review at a party’s facility prior to designation as “Confidential” or “Confidential - Attorneys’ Eyes Only,” after which the party seeking discovery shall specify those documents to be copied. The production of documents in this manner shall not be deemed as a waiver of any claim of confidentiality.
6. Each person appropriately designated pursuant to paragraph 3(f) to receive confidential information shall execute a “Written Assurance” in the form attached as Exhibit A.
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CASE 0:11-cv-03659-DWF-JJK Document 518 Filed 07/01/14 Page 6 of 12
7. Non-parties producing Documents in the course of this action may also designate Documents as “Confidential” or “Confidential – Attorneys Eyes Only,” subject to the same protections and constraints as the parties to this action. A copy of this Protective Order shall be served along with any subpoena served in connection with this action. All documents produced by such non-parties shall be treated as “Confidential - Attorneys Eyes Only” for a period of 14 days from the date of their production, and during that period any party may designate such documents as “Confidential” or “Confidential - Attorneys Eyes Only” pursuant to the terms of this Protective Order. This Protective Order specifically applies to non-party subpoena recipients. This protective order does not prohibit recipients of a subpoena from challenging the subpoena or individual documents requested in that subpoena consistent with Rule 45 of the federal rules of civil procedure.
8. All depositions or portions of depositions taken in this action that contain confidential information may be designated “Confidential” and/or “Confidential - Attorneys Eyes Only” and thereby obtain the protections accorded other “Confidential” and/or “Confidential - Attorneys Eyes Only” documents. Confidentiality designations for depositions shall be made either on the record or by written notice to the other party within 14 days of receipt of the transcript. Unless otherwise agreed, depositions shall be treated as “Confidential” during the 14-day period following receipt of the transcript. The deposition of any witness (or any portion of such deposition) that encompasses confidential information shall be taken only in the presence of persons who are qualified to have access to such information.
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9. Any party or non-party who inadvertently fails to identify documents as “Confidential” or “Confidential - Attorneys Eyes Only” shall, promptly upon discovery of its oversight, provide written notice of the error and substitute appropriately-designated documents. Any party receiving such improperly-designated documents shall retrieve such documents from persons not entitled to receive those documents and, upon receipt of the substitute documents, shall return or destroy the improperly-designated documents.
10. Until and unless waived in writing by Plaintiffs and prospective class members or otherwise ordered by the Court, if a party or non-party files a document containing confidential information with the Court, it shall do so under seal and in compliance with the Electronic Case Filing Procedures for the District of Minnesota. Prior to disclosure at trial or a hearing of materials or information designated “Confidential,” the parties may seek further protections against public disclosure from the Court.
11. Any party or non-party may request a change in the designation of any information designated “Confidential” or “Confidential - Attorneys Eyes Only.” Any such document shall be treated as designated until the change is completed. If the requested change in designation is not agreed to, the party seeking the change may move the Court for appropriate relief, providing notice to any third party whose designation of produced documents as “Confidential” or “Confidential - Attorneys Eyes Only” in the action may be affected. The party or non-party asserting that the material is “Confidential” or “Confidential - Attorneys Eyes Only” shall have the
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burden of proving that the information in question is within the scope of protection afforded by Fed. R. Civ. P. 26(c).
12. The Court has determined that the data are discoverable or releasable pursuant to the rules of evidence and of criminal, civil, or administrative procedure appropriate to the action; that the benefit to the Class Counsel seeking access to the data outweighs any harm to the confidentiality interests of the Class Member who is the subject of the data; and in making this decision, the Court considered whether notice to the subject of the data is warranted and has determined that this protective order will assure proper handling of the data by the parties.
Therefore, to the extent not otherwise subject to attorney-client privilege and work product, Defendants may disclose or otherwise provide and Plaintiffs’ Counsel may receive in discovery, review and use for any purpose in the Action the documents and information maintained by the MSOP in Class Members’ individual treatment or medical records as well as documents and information maintained by the MSOP that discusses or otherwise addresses individual Class Members’ treatment, including substance abuse treatment information, and/or other personal information otherwise protected by the MGDPA, FERPA and/or HIPAA. Such information shall be designated as “Confidential - Attorneys’ Eyes Only.”
The Court also specifically finds that disclosure of substance abuse treatment information is not subject to the procedures required by 42 C.F.R. § 2.64. All such information described in this paragraph may also be disclosed without advance notice to
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CASE 0:11-cv-03659-DWF-JJK Document 518 Filed 07/01/14 Page 9 of 12
the individual Class Member and shall also be designated as “Confidential- Attorneys’ Eyes Only.”
13. Within 60 days of the termination of this action, including any appeals, each party shall either destroy or return to the opposing party all documents designated by the opposing party as “Confidential” and “Confidential - Attorneys Eyes Only” and all copies of such documents, and shall destroy all extracts and/or data taken from such documents. Each party shall provide a certification as to such return or destruction within the 60-day period. However, attorneys shall be entitled to retain a set of all documents filed with the Court and all correspondence generated in connection with the action.
14. Any party may apply to the Court for a modification of the Protective Order, and nothing in this Protective Order shall be construed to prevent a party from seeking such further provisions enhancing or limiting confidentiality as may be appropriate.
15. No action taken in accordance with the Protective Order shall be construed as a waiver of any claim or defense in the action or of any position as to discoverability or admissibility of evidence.
16. The obligations imposed by the Protective Order shall survive the termination of this action.
17. In connection with any motion filed with this Court, only those portions of a party's submission (e.g., memorandum of law, affidavit, and exhibits) which meet the requirements for treatment of protection from public filing (e.g., because they are subject
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to the attorney-client privilege or work product doctrine, or meet the standards articulated by Fed. R. Civ. P. 26(c)(1)(G)), shall be filed under seal. Designation of material as confidential or protected by any party pursuant to a protective order as the sole basis for filing the material under seal shall not satisfy this requirement.
With respect to any submission filed with the Court which is sealed and posted on ECF with a placeholder, the sealed submission shall be sent electronically or hand delivered to all parties and hand delivered to the Court contemporaneously with the documents being posted on ECF.

Date: July 1, 2014

s/ Jeffrey J. Keyes JEFFREY J. KEYES United States Magistrate Judge

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CASE 0:11-cv-03659-DWF-JJK Document 518 Filed 07/01/14 Page 11 of 12
EXHIBIT A WRITTEN ASSURANCE
_________________________________________ declares that: I reside at _____________________________________ in the City of ____________________________, County of _________________________, State of _______________________. My telephone number is ________________________. I am currently employed by ________________________________________, located at _______________________________________________________, and my current job title is _______________________________________________. I have read and I understand the terms of the Protective Order dated May 31, 2012, filed in Civil No. 11cv03659 DWF/JJK, pending in the United States District Court for the District of Minnesota. I agree to comply with and be bound by the provisions of the Protective Order. I understand that any violation of the Protective Order may subject me to sanctions by the Court. I shall not divulge any documents, or copies of documents, designated “Confidential” or “Confidential - Attorneys Eyes Only” obtained pursuant to such Protective Order, or the contents of such documents, to any person other than those specifically authorized by the Protective Order. I shall not copy or use such documents except for the purposes of this action and pursuant to the terms of the Protective Order. As soon as practical, but no later than 30 days after final termination of this action, I shall return to the attorney from whom I have received them, any documents in
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CASE 0:11-cv-03659-DWF-JJK Document 518 Filed 07/01/14 Page 12 of 12

my possession designated “Confidential” or “Confidential - Attorneys Eyes Only”, and

all copies, excerpts, summaries, notes, digests, abstracts, and indices relating to such

documents.

I submit myself to the jurisdiction of the United States District Court for the

District of Minnesota for the purpose of enforcing or otherwise providing relief

relating to the Protective Order.

Executed on: ____________ (Date)

_____________________________________ (Signature)

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 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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)
MEMORANDUM OPINION AND ORDER

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, Scott H. Ikeda, and Aaron Winter, 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.
John L. Kirwin, Esq., Assistant Hennepin County Attorney, Hennepin County Attorney’s Office, counsel for Amicus Curiae.

INTRODUCTION This matter is before the Court on its June 2, 2014 Order to Show Cause (Doc. No. 468), Plaintiffs’ Motion for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment (Doc. No. 469), and Plaintiffs’ Motion to Immediately Transfer R.B. to an Appropriate Treatment Facility (Doc. No. 478). For the reasons set forth below, the Court denies Plaintiffs’ motions without prejudice but expedites this class action case for trial.
BACKGROUND1 Plaintiffs filed this class action case on behalf of all individuals civilly committed to the Minnesota Sex Offender Program (“MSOP”), raising several challenges to MSOP and the Minnesota statutes governing civil commitment and treatment of sex offenders, Chapter 253B (recodified as Chapter 253D). (See Doc. No. 1, Compl.; Doc. No. 301, Am. Compl.) On July 24, 2012, the 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’s Order to Show Cause and Plaintiffs’ two motions referenced above were prompted by the work of the court-appointed Rule 706 experts, specifically two 1 The following is a summary of facts relevant to the pending motions before the Court. A more full summary of facts underlying this class action case can be found in the Court’s February 20, 2014 Memorandum Opinion and Order (Doc. No. 427). This Order was dated February 19, 2014, docketed on ECF on February 20, 2014, and is hereinafter referred to as the February 20, 2014 Order to avoid confusion.
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interim reports produced by the Rule 706 experts relating to class members Eric Terhaar and Rhonda Bailey.
As the record reflects, after various motions were filed in this matter, on October 25, 2013, the Court “acknowledge[d] the need for experts in this case in order to fully and properly litigate the claims at issue,” granted Plaintiffs’ request to the extent it sought the appointment of expert witnesses pursuant to Rule 706 of the Federal Rules of Evidence, and requested nominations for such experts from the parties. (Doc. No. 354 at 3, 4.) On December 6, 2013, the Court appointed four experts pursuant to Rule 706. (Doc. No. 393 at ¶ 2.) These four experts were jointly nominated by the parties. (Id.) The Court’s December 6, 2013 Order generally described the duties of the experts and stated that the Court expected “the experts to confer as soon as possible and to suggest a methodology, areas of concentration, and division of labor, together with an expedited timetable for submission of their findings to the Court.” (Id. ¶¶ 4, 9.) Thereafter, the parties submitted their respective proposals with regard to the work of the experts, and on January 22, 2014, the Court met with the experts. (See Doc. No. 421.) On February 5, 2014, the Court received the experts’ proposed plan of action, in which the experts proposed, among other things, to conduct initial chart reviews to “get an understanding of what is happening in the program so that it may be evaluated, not to make comments about an individual resident’s risk or treatment progress.” (Doc. No. 422.)
At that time, a motion to dismiss and motions by Plaintiffs requesting various forms of injunctive and declaratory relief were pending. On February 19, 2014, the Court ruled on the motions, and in doing so, pointed out that this case involves alleged systemic
3

problems with MSOP and the systematic application of commitment statutes to the class members, and further stated that specific discovery may enlighten the Court on the issues before it. (Doc. No. 427 at 20 (“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 evidence before the Court included both the March 2011 Evaluation Report on the Civil Commitment of Sex Offenders by the Office of the Legislative Auditor for the State of Minnesota (“OLA”) (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), and the Sex Offender Civil Commitment Advisory Task Force’s (the “Task Force”) final recommendations dated 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.) Both reports indicate there may be systemic problems with MSOP and its application of the commitment statutes. For example, the Task Force Report states that “[t]here is broad consensus that the current system of civil commitment of sex offenders in Minnesota captures too many people and keeps many of them too long” (Task Force Report at 1), and makes several recommendations. (See Task Force Report at 5-16.) The Task Force also states that “[u]nder current law all offenders committed to MSOP are presumptively placed in the highest level of security. The result
4

is that some offenders, while meeting the criteria for commitment, may be needlessly confined in the most secure facilities, when both public safety and the need for effective treatment might be better served in a less restrictive environment”; and “[t]he need for continued commitment and the propriety of placement must be reviewed on a regular basis, without demand or request by the committed individual.” (Id. at 3.) The summary of the findings of the OLA includes 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” (OLA Report at x); “[t]he costs of civil commitment in MSOP are high relative to incarceration and other alternatives”2 (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” (id. at xii); and “[n]o civilly committed sex offender has ever been discharged from MSOP” (id.). The OLA Report also notes that “Minnesota has a release standard for offenders who are civilly committed that, in practice, is stricter than other states. MSOP does not support any discharges without completion of the treatment program. Most states explicitly allow for discharges if an offender no longer meets the commitment criteria.” (OLA Report at xii.) 2 According to the OLA Report, the “annual cost per resident in MSOP is $120,000,” which is “at least three times the cost of incarcerating an inmate at a Minnesota correctional facility.” (OLA Report at x.)
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The Court therefore contemplated that the work of the Court-appointed experts
would help the Court determine whether there are such systemic problems. (Doc.
No. 427 at 20.) Accordingly, the Court more specifically set forth what the Rule 706
experts’ work should include—at a minimum—so that information relevant to such
determination would be available to the Court. (Id. at 70-74.) For example, the Court
ordered that the experts’ work would include:
ii. Reviewing the current treatment program at MSOP and its implementation to determine whether the program meets professional standards of care and treatment for sex offenders and issuing recommendations as to any changes that should be made to the treatment program; and
iii. Reviewing current MSOP policies and practices with regard to the conditions of confinement to determine whether they satisfy the balance between safety concerns and a therapeutic environment and making recommendations for any changes that should be made to the conditions of confinement at both the Moose Lake and St. Peter facilit[ies].
iv. The experts shall also report to the Court on the following: (a) the current professional standards for the treatment of civilly committed sex offenders and the extent to which MSOP’s program design reflects those standards; (b) how other civil commitment programs have reintegrated civilly committed sex offenders into the community, with particular attention to community relations; and (c) how other states, if any, are providing treatment and management of lower-functioning civilly committed sex offenders in community settings.
(Doc. No. 427 at 71-72.) In addition, expanding on what the Rule 706 experts had
proposed, the Court asked the experts to:
[e]valuat[e] all class members[] and issu[e] reports and recommendations as to: (a) each class member’s current level of dangerousness (current risk assessment), including whether each class member poses a “real, continuing, and serious danger to society”; (b) whether each class member is actually eligible for discharge under the applicable statutory provisions or
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otherwise no longer meets the statutory criteria for initial commitment (or should otherwise be recommended for provisional or full discharge); (c) whether each class member is placed in the appropriate phase of treatment; (d) whether each class member would be a candidate for a less restrictive facility; and (e) the specific need and parameters for less restrictive alternative facilities,[] including the operation of such facilities[.] (Doc. No. 427 at 70-71.) The Court explained that “independent risk assessments and treatment recommendations for each of the class members [would] ultimately be necessary in order for the Court to comprehensively evaluate Plaintiffs’ claims, including whether the commitment statutes, as applied, and whether MSOP, as implemented, pass constitutional muster.” (Doc. No. 427 at 47-48.) The Court ordered that the experts begin their work by “[r]eviewing MSOP treatment and screening program/process”; “[c]onducting site visits to St. Peter and Moose Lake and interviewing patients and staff at each facility”; “[r]eviewing 20% to 25% of resident charts, with the aim of reviewing 100% of charts for those individuals in the Assisted Living Unit, the Alternative Program Units, and the Young Adult Unit”; and “[i]dentifying residents who are not receiving appropriate services and making recommendations related thereto.” (Doc. No. 427 at 72.) With respect to the chart reviews, the Court ordered the experts to prioritize their evaluations of those individuals residing in the Young Adult Unit, the Assisted Living Unit, and the Alternative Program Units. (Id. at 70 n.54, 72.) Prioritizing the evaluations of these individuals, for the purpose of identifying potential bellwether issues, was supported by both the OLA and the Task Force Reports. The OLA Report states, for example, that:
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• “. . . MSOP clinical management agreed that some low functioning[3] individuals in the MSOP alternative program in St. Peter could be managed in group homes specifically designed for low functioning sex offenders. Elderly individuals with numerous medical problems and physical disabilities are also being committed and sent to MSOP facilities and placed in an assisted living unit when appropriate. Most recently, an 88-year-old was committed and sent to an MSOP facility. Some of these individuals may be suitable for an alternative commitment setting.” (OLA Report at 43-44.)
• “Generally in our file reviews and interviews, we found that there were concerns that some clients with cognitive deficits and those with psychiatric issues did not have their needs met by the program.” (Id. at 79.)
• “The lowest functioning alternative program clients may not have the cognitive skills to complete the MSOP treatment program.” (Id. at 79.)
• “The MSOP administration separated from DHS’s State Operated Services division in 2008, and low functioning MSOP clients who had been treated at Special Needs Services were moved back to MSOP in the newly created alternative program. The decision to move these clients back to MSOP was made without executive level clinical input. The decision was made by the MSOP executive director during a time when there was neither an executive clinical director for the program nor a clinical director on the St. Peter campus.” (Id. at 80-81.)
• “The program has not yet developed and implemented an alternative release path for low functioning alternative program clients.” (Id. at 82.)
• “Some low functioning alternative program clients likely do not need the same level of security as other MSOP clients.” (Id. at 82.)
3 The Court notes that the term “low functioning” is not the Court’s term, but that used by the Office of the Legislative Auditor and perhaps, as reported, MSOP clinical management. The term “low functioning” is not a useful or descriptive term for any individual. Its imprecision leaves biased impressions and feeds stereotypes about the people who are being referenced. In the Court’s many years of personal and professional experience working with disability issues in cases and people with various disabilities, the Court notes that this terminology does not appear or is recognized in the professional literature. Individuals who are not progressing through the program levels at MSOP may be experiencing a range of conditions such as a learning disability, some type of intellectual disability, or some co-occurring conditions.
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• “There are clients who, due to age or disability, could likely be managed in alternative settings to MSOP facilities.” (Id. at 88.)
• “We read some files of clients whose crimes were exclusively against other children when they themselves were juveniles. These clients were sometimes originally given diagnoses of pedophilia. Some clients in this situation have had their diagnoses changed because, as adults, they do not have a persistent attraction to children.” (Id. at 89.)
The OLA Report includes the following recommendations:
• “MSOP should reassess its existing residents to determine which residents would be suitable for placement in an alternative setting. The plan presented to the 2012 Legislature should provide information on this reassessment, including the rationale for determining why certain types of residents would be suitable for an alternative commitment setting and a detailed description of the alternative settings being proposed for various groups.” (OLA Report at 46.) The OLA noted that “[s]ome might argue that outside experts should be used to do this assessment, since they might be more objective in their assessments.” (Id.)
• “MSOP should develop and implement a plan for identifying when certain low functioning alternative program clients who are not cognitively able to complete treatment can be managed in a less restrictive setting. MSOP should petition the Special Review Board (SRB) for transfer or provisional discharge of these clients to an alternative setting.” (Id. at 83.)
• “MSOP should develop and implement a plan for managing transferred or provisionally discharged low functioning alternative program clients in an alternative setting.” (Id. at 83.)
Also, in its final recommendations, the Task Force states the following:
Civil commitment of persons whose offending behavior occurred while a juvenile and individuals with developmental disabilities present special issues that are not adequately addressed by current law and practices. Special criteria and/or procedures should be developed to ensure such persons are appropriately treated in the commitment system.
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(Task Force Report at 3-4.) The Task Force also states that “[n]o person should be civilly committed based solely on behavior that occurred while that person was a juvenile.” (Id. at 4.)
In commencing their work pursuant to the Court’s February 20, 2014 Order, the Rule 706 experts toured the MSOP facilities, began interviewing patients and staff at each facility, and began their review of case files. After learning of Terhaar’s and Bailey’s situations, and after reviewing Terhaar’s and Bailey’s files, the Rule 706 experts agreed that Terhaar’s and Bailey’s cases should be brought to the Court’s attention (consistent with the February 20, 2014 Order).4 (See Doc. No. 427 at 72 (“The experts’ work shall begin with, but will in no way be limited to, the following: . . . iv. Identifying residents who are not receiving appropriate services and making recommendations related thereto.”).) After raising their concerns with respect to Terhaar and Bailey specifically, and identifying those individuals as being in need of immediate court action, the Rule 706 experts volunteered to draft interim written reports on Terhaar and Bailey, explaining their findings and conclusions to the Court and respective counsel. Upon
4 The Rule 706 experts testified that they were shocked to find that Terhaar was at MSOP and they were shocked to find Bailey’s situation with respect to her treatment and her living conditions. Consequently, they brought these two cases to the Court’s attention because the experts thought they needed immediate action. (Doc. No. 569 (“July 14 Tr.”) at 108, 139, 142-43.)
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receipt, the interim reports were promptly provided simultaneously to the parties by the Court’s Technical Adviser.5
In their report dated May 18, 2014, the Rule 706 experts provide a summary and
discharge recommendation for Terhaar. (Doc. No. 468, Ex. 1.) The experts explain that
Terhaar has “no adult criminal history” and was 19 years old when committed to MSOP.
(Id. at 1.) According to the experts, Terhaar’s commitment to MSOP “was as a result of
behavior that he engaged in between the ages of 10 and 14.” (Id.) Terhaar’s file also
apparently makes reference to incidents that occurred while he was in juvenile placement
facilities, and for which no charges were filed against him. (See id. at 1-2.) The experts
opine that it “is likely” that Terhaar’s “history of general delinquency,” including
“fighting, running away,” and “engaging in rule violating behaviors,” contributed to his
commitment to MSOP. (Id. at 2.) In their report, the experts ultimately conclude that:
Mr. Terhaar has no adult criminal history. The sexual offending behavior leading to his indefinite placement at MSOP occurred while he was a juvenile only. There is good reason to believe that these sexual offenses were influenced by his own history of sexual victimization and a lack of understanding as to how to deal with his trauma. These and other problematic behaviors were likely exacerbated by his ADHD status and untreated complex trauma. Overall, there is little evidence to suggest that Mr. Terhaar is a dangerous sexual offender who poses a significant risk to public safety. As such, the panel unanimously agrees that Mr. Terhaar should be unconditionally discharged from MSOP.
(Id. at 4.) The experts further identify a family member with whom Terhaar would be
welcome to live and work upon discharge. (Id.) Additionally, the experts state that
5 The report on Terhaar was received first and provided to the parties on May 30, 2014. Thereafter, the report on Bailey was received and provided to the parties on or about June 6, 2014.
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Terhaar “has been medication compliant since arriving at MSOP.” (Id. at 2.) They also
note that “[i]t appears that Mr. Terhaar completed treatment related to his sexual
offending history prior to placement at MSOP” and that “[i]t is unlikely that he requires
additional intervention in this regard.” (Id.)
In support of their conclusions, the experts discuss Terhaar’s pertinent history and
treatment participation at MSOP. (Id. at 2-3.) The experts also highlight risk assessment
processes for juveniles and state the following:
The literature on sexual offender risk assessment is clear that juveniles are not just “small adults”; specialized tools and methods are required for use with this population. Research also shows a strong effect of aging on risk in the juvenile population, in that most sexual offending committed by juveniles is linked more to development than to deviance, per se. Use of actuarial methods is common amongst adult sexual offenders, but the literature is cautionary with respect to the use of such methods with youth. In particular, those tools that have been developed for use with juveniles have only short-term predictive validity; there are no tools in common use that profess to provide long-term predictive validity in juveniles.
It is also important to note that research on juvenile sexual offenders suggests that they have low recidivism rates and that they are more similar to other justice-involved juveniles than adult sexual offenders. In fact, most juveniles who engage in sexually abusive behaviors do not continue to offend sexually during adulthood (only 4.3% are arrested for a sexual offense as an adult). This finding is most likely due to the fact that juvenile offending behaviors are driven by different issues than those that drive adults to commit sexual offenses (e.g., more opportunistic than predatory, curiosity based, related to social problems, less compulsive). Moreover, juveniles are more amenable to change than adults and, as such, those who engage in sexually abusive behaviors during youth are more responsive to interventions.
(Id. at 3.)6
6 The Young Adult Unit houses twenty-four patients between the ages of eighteen and twenty-five, “who require specialized treatment programming due to emotional
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In a report dated June 4, 2014, the Rule 706 experts provide a summary and recommendation for transfer or provisional discharge for Rhonda Bailey, the only woman civilly committed to MSOP. (Doc. No. 481, Gustafson Decl. ¶ 3, Ex. A.) Bailey has been committed since 1993, and since 2008, she has been housed on the St. Peter campus of MSOP as the only female on a unit of all male high risk sexual offenders.7 (Id. at 1.) As it stands, she “attends sex offender treatment and other programming and activities in groups in which she is the only female.” (Id.)
According to the experts, Bailey’s “sexual offending is no doubt in reaction to the severe emotional, physical, psychological, and sexual abuse she experienced as a child, adolescent, and young adult.” (Id. at 6.) The experts explain Bailey’s “chaotic and extremely traumatic upbringing,” including that she was physically and sexually abused by several of her male family members beginning at the age of five or six. (Id. at 1.) While at MSOP, the experts point out that Bailey has been consistently diagnosed with multiple paraphilias. (Id. at 3.) She has also been “diagnosed with Intellectual Disability (previously diagnosed as Mild Mental Retardation), . . . has a full scale IQ of 66,” and
(Footnote Continued From Previous Page) immaturity and vulnerability.” (Doc. No. 380 at 12-13 (citing Doc. No. 385, Hébert Aff. ¶ 86).) 7 In 2008, the Department functionally separated MSOP from State Operated Services, and as a result, thirty-three MSOP clients who had been placed at the Minnesota Security Hospital (“MSH”) because they experience varying degrees of cognitive impairment, including Bailey, were moved from the Special Needs Services division of the MSH to MSOP. (Doc. No. 496, Johnston Aff. ¶¶ 2-4.)
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“has a long history of depression dating to age seven or eight.” (Id.) The experts also acknowledge the difficulties that Bailey presents, including that “[s]he has poor boundaries with peers and with staff,” she has been “viewed by various staff as ‘predatory’ relative to sexual contact with ‘vulnerable’ male and female adult patients in shared secure treatment settings,” “[s]he engages in sexualized and aggressive interactions with her peers and staff, including sexually assaulting other adult clients by engaging in oral sex and intercourse while at MHS and sexually grabbing or touching peers at MSOP.” (Id. at 4.)
The experts note, however, that: [t]here appears to be no case conceptualization in the record that recognizes that Ms. Bailey’s years of sexual abuse and trauma may have greatly impacted or resulted in her sexualized behavior as an adult. According to Ms. Bailey’s report and in review of the record spanning over two decades, she has not had the opportunity to address the years of neglect, physical, and sexual abuse and the associated trauma she experienced as a child. (Id. at 2.) The experts also note that “[t]hroughout her records, and in our interview, [Bailey] reported symptoms consistent with Post Traumatic Stress Disorder (PTSD), but only recently has this diagnosis been explored by the MSOP psychiatrist.” (Id. at 4.) In addition, they state that “[t]here is no evidence to suggest that there has been any consultation or incorporation of specialized sexual offender treatment for females, or references that procedures supported by contemporary research and practice have been implemented.” (Id. at 5.) The experts also met with then MSOP psychiatrist Dr. Beth Johnson, who reported that Bailey was “a ‘delight’ to work with and that she believed that she was not properly treated for her trauma.” (Id.)
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The experts state that “[r]esearch suggests that the risk factors and protective
factors we know to be related to male sexual offenders may not be relevant to female
sexual offenders,” and opine that “the treatment program (and [Bailey’s] attendance with
male sexual offenders) is not adequately addressing her issues or criminogenic needs.”
(Id. at 5-6.) In support, the experts highlight the risk assessment differences between
men and women:
The literature on sexual offender risk assessment is clear that women are different from their male counterparts. Research suggests that female sexual offenders account for 2% to 5% of all sexual offenders. As a group, male sexual offenders sexually reoffend at an average rate of approximately 15% over five to seven years of follow-up in the community (Hanson & Morton-Bourgon, 2005). In comparison, female sexual offenders sexually reoffend at about 2% on average, over a similar time period (Cortoni et al., 2010). At present, there are no specialized tools or methods for use with this population beyond measures of general psychological functioning and risk for general criminality (e.g., LSI-R, LS-CMI). Although use of actuarial methods is common amongst male sexual offenders, there is no literature supporting the use of such methods with females. The development or use of one would suffer from severe limitations/inaccuracy given the extremely low base rates of female sexual offender recidivism. Additionally, frameworks for sexual psychodiagnostics (e.g., paraphilias, as defined by DSM-5) are almost entirely driven by behavioral concerns in men.
(Id. at 7.) The experts also note that “the standard across programs, including civil
commitment programs like MSOP, is to separate men and women in the environment and
in treatment.”8 (Id.) The experts state that:
8 The experts note that at MSOP, particularly in Phase II where Bailey is, “group members shar[e] the details of their offending, which may trigger symptoms of Ms. Bailey’s PTSD.” (Id.) They also note that “[t]here is no evidence that the clinical staff at MSOP have received specialized training for working with female sexual abusers, including the treatment approach that might be most effective.” (Id.)
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While not entirely impossible, it is highly unlikely that a female would be in possession of not one, but five separate paraphilias . . . , as stated in her current diagnoses in the MSOP record. Rather, there are clearly other possibilities regarding the etiology of Ms. Bailey’s sexual difficulties, including, as her psychiatrist Dr. Johnson suggests, an untreated bipolar disorder. All available empirical evidence leads to questions about whether someone like Ms. Bailey meets criteria for civil commitment and to concerns that the current treatment program not only fails to meet her needs, but is iatrogenic due to her trauma history and probable PTSD. (Id.) The experts also opine that Bailey “would greatly benefit from trauma-specific and gender-specific assessment and treatment designed to address her history of sexual victimization and the losses she has experienced . . . , in addition to opportunities for gender sensitive socialization,” and that “[s]he may benefit from EMDR and/or Dialectical Behavior Therapy (DBT), as specific interventions for addressing PTSD or other trauma symptoms and emotion regulation and self-injurious behavior, respectively.” (Id. at 6.) While they agree that Bailey “remains at high risk for future sexually inappropriate conduct,” and that “the risk she poses continues to require management and supervision,” they have “grave concerns . . . regarding the means by which Ms. Bailey’s clinical presentation and risk are currently being addressed and managed.” (Id.) Ultimately, the Rule 706 experts conclude that “Ms. Bailey’s current housing and treatment scenario is unprecedented in contemporary sexual offender treatment and management; even more so in regard to sexual offender civil commitment.” (Id. at 7.) They have “exceptionally grave concerns that Ms. Bailey is being housed and treated in a
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facility built for men and populated by men.”9 (Id.) They, as a unanimous group, opine that “if appropriate treatment was provided in a non-all-male setting, and she was correctly medicated, Ms. Bailey may be able to be managed in a less secure setting.” (Id. at 6.) The experts opine that she “is quite inappropriately placed at the MSOP St. Peter site,” and they “believe strongly that she should be relocated to a facility where she can receive care and treatment that is sensitive to both her gender and her clinical presentation.” (Id. at 8.) In addition, they opine that “[c]ontinued placement at MSOP is iatrogenic to Ms. Bailey, in that this placement likely exacerbates, rather than ameliorates, the issues that influence her inappropriate sexual behavior.” (Id.) They unanimously recommend that Bailey be transferred or provisionally discharged from MSOP “to a supervised treatment setting that can meet her special needs for treatment (e.g., sexual offending, personal victimization, trauma, mental health maintenance) that is gender responsive, trauma informed, and that provides for socialization opportunities and relationship development with other women.” (Id. at 1.) They also recommend that “it would be ideal if the alternate setting could provide gender-specific sexual offender treatment either individually or in group, but not with male sexual offenders. (Id.)
In light of the interim report with respect to Terhaar, as well as the Court’s prior order on Defendants’ motion to dismiss and Plaintiffs’ requests for injunctive and declaratory relief (Doc. No. 427), on June 2, 2014, the Court ordered Defendants to show
9 The experts note that the Standard Minimum Rules for the Treatment of Prisoners (SMR) of the United Nations, to which the United States is a signatory, state that women should be detained separate from men. (Id. at 8.)
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cause why Terhaar’s continued confinement is not unconstitutional and why Terhaar should not be immediately and unconditionally discharged from MSOP, as unanimously recommended by the Rule 706 experts. (Doc. No. 468.) On June 4, 2014, Plaintiffs filed a Motion for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment. (Doc. No. 469.) Then, upon receipt of the experts’ report on Bailey, Plaintiffs filed a Motion to Immediately Transfer R.B. to an Appropriate Treatment Facility. (Doc. No. 478.) Plaintiffs’ counsel also filed separate habeas petitions on behalf of Terhaar and Bailey seeking Terhaar’s immediate and unconditional discharge from MSOP and Bailey’s immediate transfer “from MSOP to a structured, supervised residential facility where she can begin to address her issues in a more appropriate and clinically relevant environment[.]” (Civil No. 14-2002, Doc. No. 1; Civil No. 14-2362, Doc. No. 1.)
At some point after receiving the Rule 706 experts’ report on Terhaar, MSOP’s internal licensed psychologists Anne Pascucci and Lauren Herbert jointly prepared a Sexual Violence Risk Assessment Report, which issued on June 10, 2014. (Doc. No. 486, Johnston Aff. ¶ 7, at Ex. 2.) Pascucci and Herbert concluded that Terhaar does not meet the statutory requirements for being unconditionally discharged from MSOP. (Id. at 21.) Terhaar’s Treatment Team also produced a report dated June 10, 2014, which concludes that “[p]lacement in a setting outside the secure perimeter, similar to Community Preparation Services, that maintains adequate structure and supervision while providing opportunities for gradual reintegration to society would be appropriate.” (Doc. No. 486, Johnston Aff. ¶ 6, Ex. 1 at 9.)
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After the Court’s Order to Show Cause, the Commissioner requested that
independent licensed psychologist Amanda Powers-Sawyer evaluate Terhaar and provide
an opinion on his suitability for discharge from commitment. (Doc. No. 485 at 16.)
Dr. Powers-Sawyer issued a report dated June 10, 2014, concluding that:
it is [her] professional opinion that Mr. Terhaar meets criteria for unconditional discharge from MSOP evidenced by not meeting statutory criteria for posing a level of dangerousness to the public with respect to sexual matters. He is not in need of residential adult sex offender treatment and supervision. He is capable of making an acceptable adjustment to society. He may benefit from ongoing individual psychotherapy on an outpatient basis to continue addressing symptoms related to posttraumatic stress disorder.
(Doc. No. 486, Johnston Aff. ¶ 8, Ex. 3 at 12-13.)
On June 10, 2014, MSOP Executive Director Nancy Johnston petitioned for
Terhaar’s transfer to Community Preparation Service (“CPS”), a highly supervised,
unlocked facility within MSOP that is designed to provide clients in the advanced stages
of treatment the opportunity to prepare for successful reintegration into the community.
(See Doc. No. 486, Johnston Aff. ¶ 9, Ex. 4; Doc. No. 385, Hébert Aff. ¶ 44.)10 Johnston
later testified that she petitioned the SRB in response to the Rule 706 experts’ report.
10 A hearing was held by the Special Review Board (“SRB”) on this petition on July 2, 2014, and the SRB issued its decision on July 8, 2014, recommending to the Minnesota Supreme Court Appeal Panel (“SCAP”) that Terhaar be immediately placed “into a modified Community Preparation Services program adapted to his particular needs and sufficiently monitored to provide a reasonable degree of public safety.” (Doc. No. 559, July 14-15 Hr’g, Ex. 96.) Johnston testified that if all goes well and Terhaar is transferred to CPS after approval from the SCAP, and that if his initial month or so of transition goes well, that she would initiate a new petition for Terhaar requesting his provisional discharge. (Id. at 328.) She estimated, again if all goes well, that this petition for provisional discharge would be initiated this year, in 2014. (Id. at 329.)
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(Doc. No. 570 (“July 15 Tr.”) at 307-08.) She explained that the petition for Terhaar was unusual and that it was not normal for MSOP to support a petition for someone in Phase I to be moved to CPS; in fact, this was the only request for reduction in custody of this kind that she was aware of. (Id. at 312, 324-25.) Johnston also testified that she “do[es] not disagree” with the Rule 706 experts’ opinion that Terhaar is a low risk to sexually re-offend. (Id. at 336.)
On June 11, 2014, the day after Johnston petitioned for Terhaar’s transfer to CPS, Pascucci and Herbert issued a Sexual Violence Risk Assessment Addendum, in which they additionally opined that Terhaar does not meet the statutory requirements for a reduction in custody to transfer to CPS, thus taking a position contrary to MSOP Executive Director Johnson. (Doc. No. 491, Brennaman Supp. Aff. ¶ 2, Ex. A.)
The Court held a Show Cause hearing and a hearing on Plaintiffs’ motions on June 25, 2014, wherein counsel for both sides argued their respective positions. (Doc. No. 549.) Defendants maintained that Terhaar “is still a danger to the public, he is still in need of inpatient treatment and supervision, and is not yet capable of making an acceptable adjustment to open society.” (Doc. No. 485 at 1.) Therefore, they oppose unconditional discharge for Terhaar at this time. (Id. at 2.) Defendants asked the Court to allow the Minnesota statutory process for reduction in custody and discharge from commitment to be followed and requested the opportunity to explore the basis of the Rule 706 experts’ report in an evidentiary hearing. (Doc. No. 485 at 3.) Consistent with the Court’s remarks from the bench, the Court set an evidentiary hearing for July 14-15, 2014, to allow the parties to explore the basis of the reports and affidavits filed on Terhaar and
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Bailey and to present other evidence relating to the experts’ reports. (Doc. Nos. 516, 550.)
On July 14-15, 2014, the Court held the evidentiary hearing and it received testimony from the Rule 706 experts and Executive Director Nancy Johnston, and received exhibits into evidence. (Doc. Nos. 557, 558, 559.)11
DISCUSSION Motions Regarding Eric Terhaar On June 4, 2014—two days after the Court ordered Defendants to show cause why Terhaar’s continued confinement is not unconstitutional and why Terhaar should not be immediately and unconditionally discharged from MSOP—Plaintiffs renewed their motion for a declaratory judgment to the extent that they assert that Minn. Stat. § 253D is
unconstitutional as applied because it does not contain a requirement for any automatic independent review of an individual’s need to be civilly committed.12 (Doc. No. 470 at 2.) Specifically, Plaintiffs requested in their new motion an order requiring “(1) Defendants to immediately develop, and by June 1, 2015, implement, a policy providing for automatic and independent annual reviews of each Class member to
11 On July 2, 2014, Plaintiffs filed a Motion for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. § 253D.35 (Doc. No. 526). Although the Court had originally intended to hear argument on July 15, 2014 on this motion, as well as on the habeas petitions, the Court indicated from the bench that it would take up those matters at a different time and allowed for supplemental briefing on Plaintiffs’ Motion for the Creation of an Aftercare Plan for E.T. 12 Plaintiffs originally filed a Motion for Declaratory Judgment on November 19, 2013 (Doc. No. 360), which was denied without prejudice in the Court’s February 20, 2014 Order. (Doc. No. 427 at 70.)
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determine the need for continued commitment, and; (2) the immediate discharge of Mr. Terhaar from his civil commitment.” (Id. at 3.) At the hearings, however, Plaintiffs’ counsel clarified that he was only requesting a declaratory judgment at this time stating that Terhaar’s continued detention at MSOP is unconstitutional and that he would reserve his arguments for a broader declaratory judgment request that would affect other class members at a later time. (July 15 Tr. at 354-56.) Plaintiffs’ counsel also indicated that he was now only seeking a declaration of unconstitutionality and that he was not seeking an order requiring immediate discharge of Terhaar since it was his belief that such relief could only be granted through the habeas petition. (Id. at 354-55.) Regardless of how Plaintiffs’ have limited their declaratory request, Defendants have opposed Plaintiffs’ motion asserting various arguments for why declaratory relief is inappropriate and have argued that they have properly responded to the Court’s Show Cause Order. (See generally Doc. Nos. 485, 509.)
The Declaratory Judgment Act provides in pertinent part that “[i]n a case of actual controversy within its jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). However, it is well-settled “that district courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995); see also, e.g., Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 126 (1968) (affirming that the
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exercise of the power to grant declaratory judgments is discretionary); Brillhart v. Excess Ins. Co., 316 U.S. 491, 494 (1942). The Supreme Court has explained that “[s]ince its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants,” and the Court has “repeatedly characterized the Declaratory Judgment Act as an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant.” Wilton, 515 U.S. at 286–87 (internal quotations omitted). “By the Declaratory Judgment Act, Congress sought to place a remedial arrow in the district court’s quiver; it created an opportunity, rather than a duty, to grant a new form of relief to qualifying litigants.” Id. at 288.
Plaintiffs argue that, “[b]ased on the findings of the Rule 706 experts, who unanimously found that Mr. Terhaar is not a dangerous sexual offender and does not pose a significant risk to public safety, Mr. Terhaar no longer meets the constitutionally required criteria for civil commitment and his ongoing commitment violates his fundamental due process right to liberty.” (Doc. No. 470 at 17.) 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 v. United States, 463 U.S. 354, 370 (1983). Thus, as the Supreme Court held in Foucha, when a civilly committed person is no longer dangerous, he must be released. See Foucha v. Louisiana, 504 U.S. 71, 77-78
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(1992).13 The continued confinement of a person who is not dangerous and in need of
further treatment renders the confinement not reasonably related to the stated purpose for
13 Discussing its previous holding in Jones, the Supreme Court stated in Foucha:
We held, however, that “(t)he committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous,” id., at 368, 103 S. Ct., at 3052; i.e., the acquittee may be held as long as he is both mentally ill and dangerous, but no longer. We relied on O’Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L.Ed.2d 396 (1975), which held as a matter of due process that it was unconstitutional for a State to continue to confine a harmless, mentally ill person. Even if the initial commitment was permissible, “it could not constitutionally continue after that basis no longer existed.” Id., at 575, 95 S. Ct., at 2493. In the summary of our holdings in our opinion we stated that “the Constitution permits the Government, on the basis of the insanity judgment, to confine him 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 368, 370, 103 S. Ct., at 3052, 3053. The court below was in error in characterizing the above language from Jones as merely an interpretation of the pertinent statutory law in the District of Columbia and as having no constitutional significance. In this case, Louisiana does not contend that Foucha was mentally ill at the time of the trial court’s hearing. Thus, the basis for holding Foucha in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis. O’Connor, supra, 422 U.S., at 574-575, 95 S. Ct., at 2493-2494.
Foucha, 504 U.S. at 77-78 (footnote omitted).
In Minnesota, a patient cannot be completely discharged from MSOP unless “it appears to the satisfaction of the judicial appeal panel, after hearing and recommendation by a majority of the SRB, that the committed person is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.” Minn. Stat. § 253D.31. The Minnesota Supreme Court has found that the discharge provisions of the civil commitment statutes to be constitutional, but stated that a person can only be “confined for only so long as he or she continues both to need further inpatient treatment and supervision for his sexual disorder and to pose a danger to the public.” Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995). In other words, the Minnesota Supreme Court has indicated that discharge must be granted if the individual is either no longer dangerous to the public or no longer suffers
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the commitment. See Kansas v. Hendricks, 521 U.S. 346, 357 (1997) (citing Foucha, 504 U.S. at 80). “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 v. Donaldson, 422 U.S. 563, 565 (1975)). By that reasoning, an individual who no longer meets the criteria for commitment should be entitled to release.
The court-appointed Rule 706 experts, who are unquestionably experienced in the field of sex offender civil commitment and treatment and who did a complete review of Terhaar’s treatment file, which includes risk assessments and treatment information, unanimously agreed that it is unlikely that Terhaar requires further treatment at the MSOP and that “there is little evidence to suggest that Mr. Terhaar is a dangerous sexual offender who poses a significant risk to public safety.” (Doc. No. 468, Ex. 1 at 2, 4.) Their testimony confirms the same. (July 14 Tr. at 63, 99, 179; July 15 Tr. at 198, 221, 248-50.) The experts specifically recommend that Terhaar “should be unconditionally discharged from MSOP.” (Doc. No. 468, Ex. 1 at 4; July 14 Tr. at 63.) In addition, as her report reflects, independent licensed psychologist Amanda Powers-Sawyer agrees
(Footnote Continued From Previous Page) from a mental condition requiring treatment. (Id.) This is consistent with Foucha and this Court’s comments in its February 20, 2014 Order, stating that “it is constitutionally mandated that only individuals who constitute a ‘real, continuing, and serious danger to society’ may continue to be civilly committed to MSOP.” (Doc. 427 at 66 (citing Hendricks, 521 U.S. at 372).) In addition, as this Court previously stated, “If the evidence demonstrates that MSOP systematically continues to confine individuals who are not ‘a real, continuing, and serious danger to society,’ then such confinement will be held unconstitutional.” (Id.)
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with the Rule 706 experts’ conclusions. (Doc. No. 486, Johnston Aff. ¶ 8, Ex. 3.) However, although not called to testify at the July 14-15, 2014 hearing,14 the record does reflect that MSOP’s internal licensed psychologists Anne Pascucci and Lauren Herbert jointly prepared a Sexual Violence Risk Assessment Report, in which they concluded that
Terhaar does not meet the statutory requirements for being unconditionally discharged from MSOP. (Doc. No. 486, Johnston Aff. ¶ 7, Ex. 2 at 21.) But, at the hearing, MSOP Executive Director Johnston testified that she did not disagree with the experts who said that Terhaar was low risk for sexual reoffending, and she petitioned for his movement to CPS. (July 15 Tr. at 336.)
Although the evidence in the record thus far relating to Terhaar’s confinement is quite compelling in his favor, the Court is reminded that the case pending before the
Court is a Rule 23(b)(2) class-action case in which broad-based relief on behalf of the entire class is sought.15 At present, liability has not yet been determined and the record has not yet been fully developed to support a declaration of unconstitutionality as to the
14 The Court notes that Defendants were not required to call witnesses in support of their position at the evidentiary hearing. The purpose of the hearing was for the parties to probe the various report and affidavit signatories as to the basis for their opinions. (Doc. No. 550 (“The evidentiary hearing scheduled for July 14 and 15, 2014, is limited in scope to evidence relating to the opinions of all individuals, including the Rule 706 experts, who have issued reports or filed affidavits on E.T. and R.B. in relation to the Karsjens § 1983 action.”).) 15 Fed. R. Civ. P. 23(b)(2) states: “A class action may be maintained if Rule 23(a) is satisfied and if: . . . (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole[.]”
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commitment statutes’ application to the presently defined class. While a district court has some discretion to order individual relief in a Rule 23(b)(2) class action, such individual determinations should be “incidental to class-wide issues.” Marshall v. Kirkland, 602 F.2d 1282, 1295 (8th Cir. 1979). Usually this means that, in appropriate cases, a district court may “conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief.” Id. at 1296 (emphasis added) (quoting Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 361 (1977)).
In addition, a court may render a declaratory judgment “(1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceedings.” Alsager v. Dist. Ct. of Polk Cnty., Iowa (Juvenile Div.), 518 F.2d 1160, 1163-64 (8th Cir. 1975) (quoting E. Borchard, Declaratory Judgments, 299 (2d ed. 1941)). Here, issuing a declaration that Terhaar’s confinement is unconstitutional would not afford relief to the defined class, nor would it clarify or settle the issue of whether there are systemic problems with MSOP and its application of the commitment statutes.16 Under these circumstances, the issuance of the
16 Although the evidence regarding Terhaar does not settle the issue, it does provide evidence supporting Plaintiffs’ claim that the commitment statutes, because they fail to provide for an independent annual review of whether class members continue to meet the statutory requirements for commitment, result in a violation of the due process rights of those class members who continue to be committed to MSOP when they no longer meet the commitment criteria. As the Task Force noted, the “opportunity for periodic review of the need for continued confinement and commitment is critical to upholding civil commitment in light of a due process challenge.” (Task Force Report at 14 (citing In re
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requested declaratory judgment would not serve the Act’s intended purpose. Further, by granting Plaintiffs’ declaratory judgment motion with respect to Terhaar, the Court would not be providing “a comprehensive solution of the general conflict.” Hypro, Inc. v. Seeger-Wanner Corp., 292 F. Supp. 342, 344 (D. Minn. 1968) (stating that when determining whether to dismiss or stay a declaratory judgment action which is potentially cumulative of other litigation, “a court should seek to determine which of the two actions will serve best the needs of the parties by providing a comprehensive solution of the general conflict”); see also id. at 345 (stating that factors to be considered are “of judicial economy, informal comity between courts, cost and convenience to the litigants, and the possibility of vexatious conflict and overlap of multiple determinations of the same dispute”). In other words, the Court declines to exercise its discretion to grant specific relief to Terhaar at this time based on his individualized risk assessment because declaring his confinement unconstitutional would not “generate common answers apt to drive the resolution of this litigation.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quotations omitted).
Another reason why the Court declines to enter a declaration at this time is because it appears that an expedited petition for reduction of custody process is underway. MSOP is supporting a petition for Terhaar’s reduction in custody to CPS. If,
(Footnote Continued From Previous Page) Blodgett, 510 N.W.2d 910, 916 (Minn. 1994).) The ultimate resolution of this claim, of course, will depend on a full presentation of all the evidence at the trial on the merits.
28

after Terhaar is transferred to CPS, the Executive Director files a petition supporting
Terhaar’s unconditional discharge from MSOP, presumably an adequate remedy would
be had. In other words, a determination by the SCAP approving Terhaar’s discharge
would make unnecessary a declaratory judgment as to the constitutionality of Terhaar’s
confinement.17 In addition, Plaintiffs’ counsel has indicated that he may be initiating a
state habeas action on behalf of Terhaar as well. “The existence of another adequate
remedy does not preclude a declaratory judgment that is otherwise appropriate.” Fed. R.
Civ. P. 57. However, “a court, ‘in the exercise of the discretion that it always has in
determining whether to give a declaratory judgment, may properly refuse declaratory
relief if the alternative remedy is better or more effective.’” Angora Enters., Inc. v.
17 The Court notes that the Executive Director of MSOP testified that she, if all goes well with Terhaar’s transition to CPS, would start the petitioning process for Terhaar to be provisionally discharged in 2014, not unconditionally discharged. Everyone, including Defendants, Plaintiffs, the Rule 706 experts, and the Court, is in agreement that Terhaar, who has been institutionalized since he was approximately ten years old, will need individualized transition services to help best reintegrate him into his community. The dispute lies in whether Terhaar should receive those services from community providers outside of MSOP’s control, or whether Terhaar should receive those services from MSOP while housed at CPS. However, nothing precludes the Executive Director from reevaluating the situation upon Terhaar’s reduction in custody to CPS to determine that a petition for unconditional discharge would be more appropriate, especially after an aftercare plan is developed that includes community services appropriate for Terhaar.
Defendants oppose Plaintiffs’ Motion for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. § 253D.35 (Doc. No. 526), to the extent that they disagree with any legal merit to the motion. However, they have agreed, nonetheless, to provide aftercare. (Doc. No. 539 at 1-2, 7; Doc. No. 567 at 5.) Therefore, it appears that Plaintiffs’ motion is moot. Nonetheless, if Defendants do not create an aftercare plan for Terhaar as they have represented that they will, Plaintiffs can renew their motion. Therefore, Plaintiffs’ Motion for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. § 253D.35 (Doc. No. 526), is denied without prejudice as moot.
29

Condo. Ass’n of Lakeside Vill., Inc., 796 F.2d 384, 387–88 (11th Cir. 1986) (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure 2d § 2758); accord MacMillan–Bloedel, Inc. v. Firemen’s Ins. Co. of Newark, 558 F. Supp. 596, 599 (S.D. Ala. 1983) (“Where another remedy would be a more effective or appropriate remedy, the court may properly decline to assume jurisdiction.”); see also Cunningham Bros. v. Bail, 407 F.2d 1165, 1168 (7th Cir. 1969) (concluding that more effective relief was obtainable by other procedures); New York Life Ins. Co. v. Roe, 102 F.2d 28, 31 (8th Cir. 1939) (denying declaratory relief where traditional remedy was available). The pendency of Terhaar’s current petition, and MSOP’s affirmance that it will support a future, expedited petition for discharge, does present a more effective and efficient forum for the resolution of Terhaar’s particular situation. Cf. United States Fidelity and Guaranty Co. v. Murphy Oil USA, Inc., 21 F.3d 259, 263-64 (8th Cir. 1994) (concluding district court did not abuse its discretion in deciding to abstain from declaratory-judgment action when parallel state-court action was pending); Travelers Indem. Co. v. Winmill, 294 F. Supp. 394, 397 (D. Minn. 1968) (“The problem [of determining whether to exercise a court’s declaratory judgment discretion] should be appraised in the light of common sense, having regard to federal-state relations, comity between courts of concurrent jurisdiction, the potentials of the respective systems for expert and comprehensive solution, and factors such as cost and convenience to the public as well as to the parties.”). If MSOP was not in agreement to expedite this matter, and if the state process itself was not proceeding expeditiously with respect to moving Terhaar along, then this Court might be deciding this issue differently. Therefore, in the event that Terhaar’s petitions are not
30

expedited, the Court will not hesitate to either set a firm time limit or take up Terhaar’s relief petition immediately after trial, which itself will be expedited as explained further below. Accordingly, the Court declines to exercise its discretion in issuing a declaration at this time and denies Plaintiffs’ motion for declaratory judgment without prejudice.
Motion Regarding Rhonda Bailey After receipt of the Rule 706 experts’ report on Rhonda Bailey, Plaintiffs’ counsel filed a “Motion to Immediately Transfer R.B. to an Appropriate Treatment Facility.” (Doc. No. 478.) This motion was later amended to clarify that Plaintiffs are requesting through this motion an order “declaring that Rhonda Bailey is being held in an unconstitutional manner[.]” (Doc. No. 578 at 2.) Plaintiffs’ motion raises two primary issues. First, whether it is constitutional for Defendants to not provide a less restrictive alternative for Bailey’s confinement. As alleged in the Second Amended Complaint, “[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.” (Doc. No. 301, Second Am. Compl. ¶ 68.) And second, Plaintiffs’ motion raises the issue of whether the treatment provided to Bailey is so inadequate that it violates her constitutional rights.18
18 Defendants continue to maintain that the proper legal standard to apply to Plaintiffs’ inadequate treatment claims is whether “MSOP’s treatment of a particular patient ‘shocks the conscience.’” (Doc. No. 495 at 10); see Strutton v. Meade, 668 F.3d 549, 557-58 (8th Cir. 2012). As the Court has previously noted, prior to Strutton, the Eighth Circuit applied the Youngberg professional judgment standard to a sex offender’s
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In response to Plaintiffs’ motion, Defendants assert that they believe the
Department has provided Bailey with appropriate sex-offender treatment and care while
at MSOP. (Doc. No. 495 at 1.) At the same time, however, Defendants also represent
that they are “willing to make improvements to [Bailey’s] care and treatment based on
the Rule 706 Experts Report, and ha[ve] reached out to experts in the field of female
sex-offender treatment to find ways to provide better treatment and care to [Bailey] in her
current placement,” and they are “willing to explore options to transfer [Bailey] to
(Footnote Continued From Previous Page)
right to treatment claims. See Bailey v. Gardebring, 940 F.2d 1150, 1153-54 (8th Cir. 1991). Again, the Court need not decide the applicable standard for Plaintiffs’ right to treatment claims at this time. However, the Court does note that, regardless of the applicable standard, the record before the Court at this time does contain evidence supporting both standards. (See Doc. No. 481, Gustafson Decl. ¶ 3, Ex. A (Rule 706 expert report on Bailey) at 5 (“There is no evidence to suggest that there has been any consultation or incorporation of specialized sexual offender treatment for females, or references that procedures supported by contemporary research and practice have been implemented.”); id. at 6 (stating they have “grave concerns . . . regarding the means by which Ms. Bailey’s clinical presentation and risk are currently being addressed and managed”); id. at 7 (“[T]he standard across programs, including civil commitment programs like MSOP, is to separate men and women in the environment and in treatment.”); id. at 7 (concluding that “Ms. Bailey’s current housing and treatment scenario is unprecedented in contemporary sexual offender treatment and management; even more so in regard to sexual offender civil commitment”); id. at 8 (opining that Bailey “is quite inappropriately placed at the MSOP St. Peter site” and “[c]ontinued placement at MSOP is iatrogenic to Ms. Bailey, in that this placement likely exacerbates, rather than ameliorates, the issues that influence her inappropriate sexual behavior,” and stating they “believe strongly that she should be relocated to a facility where she can receive care and treatment that is sensitive to both her gender and her clinical presentation”); see also July 14 Tr. at 108, 139, 142-43 (testifying that the Rule 706 experts were shocked to find Bailey’s situation with respect to her treatment and her living conditions).)
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another facility.”19 (Id. at 1-2) They note that they do not believe that there are “suitable transfer options at this time that meet both [Bailey’s] treatment and safety needs.” (Id. at 2.)
The Rule 706 experts testified that if they were asked to, and if the State provided sufficient funds, they could create or find a residential and treatment situation for Bailey that would satisfy their professional opinion of what is needed for her. (July 14 Tr. at 107-08, 132, 141.) And counsel for Defendants reiterated their “willingness to have a conversation . . . about different placement for Ms. Bailey,” and stated that they continued to reach out to various experts on female sex offender treatment. (July 15 Tr. at 367-68.) After the hearings, counsel for both parties have continued to talk about reaching an agreement on the proper placement and treatment for Bailey, and Defendants’ counsel has notified the Court that they are, in fact, consulting with experts in the field of female sex offender treatment as to what would be the most appropriate placement and treatment for Bailey. In light of these pending discussions, and the likelihood that an agreement on Bailey’s transfer (or provisional discharge) would moot Plaintiffs’ pending motion with regard to Bailey, the Court denies the motion at this time without prejudice (and stays Bailey’s habeas case) to allow the parties an opportunity to find a just resolution that would appropriately meet Bailey’s individual residential and treatment
19 The Court notes its frustration with the fact that Defendants are only now “reaching out” and “exploring options” for Bailey, after receiving the Rule 706 expert report and Plaintiffs’ motion, when Bailey has been in their treatment program for over twenty years.
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needs. If an agreement is not reached in a timely manner, the Court will, like with
Terhaar, take up Bailey’s relief petition immediately after trial.
CONCLUSION
Although Defendants were responsive to the experts’ discovery of the fact that a
juvenile offender like Terhaar was being held indefinitely at MSOP despite, in the experts’
opinion, his lack of dangerousness or need for sex offender treatment, this does not
explain how this troubling state of affairs came about. It is obvious that but for this
litigation, Terhaar, who was stuck with hundreds of other persons in Phase I of MSOP,
would likely have languished for years in the prison-like environment of MSOP-Moose Lake without any realistic hope of gaining his freedom.20 And of course it
is of great concern to the Court that this may not be an aberrant case of system failure but
is symptomatic of a larger systemic problem of constitutional concern. This concern is
heightened by the experts’ opinion about the grossly inadequate—even shocking—
20 The Court notes its growing concern that MSOP is perhaps not doing its part in making sure people are properly placed in various phases of its program, as the experts testified that Terhaar’s case is “not an extreme outlier, but rather is representative of the cases that [the experts] will be reporting on with respect to . . . juveniles.” (July 14 Tr. at 109, 123; July 15 Tr. at 216.) The OLA Report points out that, in March 2011, when the Report was issued, “[o]nly 7 percent of MSOP clients are in the last of the program’s three phases of treatment.” (OLA Report at 71.) Further, the Court’s concern is supported by the Task Force Report, as the Task Force stated that it was “acutely aware that one of the most striking features of the MSOP as it has operated over time is the negligible number of releases from the program.” (Task Force Report at 16.) The Task Force also said that “[s]ignificant modifications of the process by which the need for continued commitment is determined and the standards for evaluating that need will address the serious issues of duration of commitment and the absence of meaningful release from commitment.” (Id.)
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treatment of Bailey, the lone female sex offender in the otherwise all male MSOP. The Court also is mindful of the fact that Defendants have not presented their own evidence at trial to defend the constitutionality of MSOP, and the Court is keenly aware of its responsibility not to prejudge the merits of this class action. But the Court is obligated pursuant to the Federal Rules of Civil Procedure to expedite the trial on the merits and allow a full record on the important constitutional issues affecting this certified class to be developed. See 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2950 (3d ed. 2014) (“It long has been recognized that an accelerated trial on the merits often is appropriate when a preliminary injunction has been requested.[] If a Rule 65(a) injunction is . . . denied, a quick disposition of the merits shortens the period in which plaintiff may be threatened by irreparable harm. In either situation the urgency that is characteristic of cases involving preliminary-injunction applications makes a rapid determination of the merits especially important.”) Therefore, counsel for the parties are required to attend the scheduling conference set for August 21, 2014, with 2014 trial dates in mind.
While the Court will exercise its discretion to decline entering any declaratory judgment at this time, it will, if necessary, “conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief.” Marshall, 602 F.2d at 1296 (quotations omitted). And it will do so promptly. The Court recognizes that while some injunctive relief may ultimately be awarded to both the class and individual members of the class, ultimate release from the detention at the MSOP may be required through habeas or procedures that may be mandated under 42 U.S.C. § 1983. Civil rights
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actions such as this one are an appropriate vehicle for challenges to civil commitment
statutes, and declaratory and prospective injunctive reliefs are available in such cases. 21
21 Simply put, Courts have allowed a § 1983 challenge when “‘release was neither asked nor ordered.’” Chancery Clerk of Chickasaw County v. Wallace, 646 F.2d 151, 157 (5th Cir. 1981) (quoting Gerstein v. Pugh, 420 U.S. 103, n.6 (1975) (“Because release was neither asked nor ordered, the lawsuit did not come within the class of cases for which habeas corpus is the exclusive remedy.”)); see also Goldy v. Beal, 429 F. Supp. 640, 644 (M.D. Pa. 1976) (“Because plaintiffs in this case do not request release from custody, they are not required to proceed by habeas corpus.”). And in a challenge to a civil commitment statute, plaintiffs may seek a declaration that the statute under which they were committed is unconstitutional and an injunction enjoining defendants from enforcing and executing the statute in its present version. See Goldy, 429 F. Supp. at 645-46. Such was the case in Wallace, as the Fifth Circuit explained:
What the plaintiffs ask in this case is a constitutional evaluation under § 1983 of the procedures under which they were committed to state mental institutions and under which they are now held in state mental institutions. If constitutional defects in such procedures are found, then by virtue of the declaratory judgment which plaintiffs seek, each confined class member would become entitled to a review of his ongoing confinement under corrected procedures. If the District Court finds aspects of the Mississippi commitment procedures unconstitutional, it can suggest the basic constitutional requirements which must be met in dealing with involuntary confinement in mental institutions. If the appropriate legislative body does not within a reasonable time provide such procedures the District Court may entertain applications for relief.
646 F.2d at 158.
In addition, the line of cases after Preiser v. Rodriguez, 411 U.S. 475 (1973), has demarcated relief that is available under § 1983 to individuals confined by the state under procedures claimed to be constitutionally infirm. E.g., Wilkinson v. Dotson, 544 U.S. 74, 81 (2005) (“[P]risoner’s claim for an injunction barring future unconstitutional procedures did not fall within habeas’ exclusive domain.” (citing Edwards v. Balisok, 520 U.S. 641, 648 (1997)); id. at 82 (stating that the § 1983 prisoner action that would result in new parole hearing or new eligibility review may proceed because it would not “necessarily spell speedier release”); Heck v. Humphrey, 512 U.S. 477, 482-83 (1994) (stating that a § 1983 action that would not determine the invalidity of an outstanding criminal judgment may proceed to challenge “wrong procedures” on denial of good-time
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Yet, by both expediting the trial, and by allowing the state petitioning process to go forward (on an expedited track as has been requested by the parties), relief through habeas may ultimately be mooted. Federal habeas, however, may be necessary if either the relief is not mooted or if the State does not proceed with speed. It may also be that, apart from habeas, declaratory and prospective injunctive relief may be granted regarding the constitutionality of the Minnesota sex offender commitment statutes on their face or as applied. Because of the various tracks underway that will directly address relief for Terhaar and Bailey, the Court now stays the federal habeas cases (Civ. No. 14-2002 (DWF/JJK) and Civ. No. 14-2362 (DWF/JJK)), so as not to interfere with the class-action trial and state processes. The Court will lift the stay in those federal habeas cases later if needed to provide adequate remedies for Terhaar or Bailey.
ORDER Based upon the foregoing, and the files, records, and proceedings herein, IT IS HEREBY ORDERED that: 1. Plaintiff’s Motion for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment (Doc. No. [469]) is DENIED WITHOUT PREJUDICE;
(Footnote Continued From Previous Page) credits); Wolff v. McDonnell, 418 U.S. 539, 555 (1974) (permitting inmates to use § 1983 to obtain a declaration that disciplinary procedures are invalid, and “by way of ancillary relief[,] an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations”).
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2. Plaintiffs’ Motion for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. § 253D.35 (Doc. No. [526]) is DENIED WITHOUT PREJUDICE;
3. Plaintiffs’ Amended Motion for Declaratory Judgment and to Immediately Transfer R.B. to an Appropriate Treatment Facility (Doc. No. [578]) is DENIED WITHOUT PREJUDICE;
4. Eric Terhaar’s federal habeas case (Civ. No. 14-2002 (DWF/JJK)) is STAYED;
5. Rhonda Bailey’s federal habeas case (Civ. No. 14-2362 (DWF/JJK)) is STAYED;
6. The parties shall meet with the Court on August 21, 2014, as previously scheduled (see Doc. No. 566), to discuss moving the trial date in this case to a date in 2014.

Dated: August 11, 2014

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

38

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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 official capacities,
Defendants.

Civil No. 11-3659 (DWF/JJK) ORDER

Daniel E. Gustafson, Esq., Karla M. Gluek, Esq., David A. Goodwin, Esq., Raina Borrelli, Esq., Lucia G. Massopust, Esq., and Eric S. Taubel, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.
Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Adam H. Welle, and Aaron Winter, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for Defendants.

INTRODUCTION This matter is before the Court on Plaintiffs’ Motion to Dismiss Counts IV, XI, XII, and XIII of the Third Amended Complaint Without Prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. (Doc. No. 925.)

DISCUSSION I. Voluntary Dismissals Under Rule 41(a)(2)
Rule 41(a)(2) authorizes voluntary dismissals “on terms that the court considers proper” after a defendant has served its answer. Fed. R. Civ. P. 41(a)(2). “[A] dismissal pursuant to Rule 41(a)(2) is not one of right but is rather a matter for the discretion of the trial court.” Great Rivers Coop. of SE Iowa v. Farmland Indus., Inc., 198 F.3d 685, 689 (8th Cir. 1999). In ruling on a Rule 41(a)(2) motion, a district court considers “whether the party has presented a proper explanation for its desire to dismiss; whether a dismissal would result in a waste of judicial time and effort; and whether a dismissal will prejudice the defendants.” Mullen v. Heinkel Filtering Sys., Inc., 770 F.3d 724, 727 (8th Cir. 2014); see also Hamm v. Rhone-Poulenc Rorer Pharms., Inc., 187 F.3d 941, 950 (8th Cir. 1999) (internal citations omitted).
If a court determines that a dismissal without any terms or conditions will prejudice defendants, it is within the discretion of the court to grant the motion and attach conditions that cure the prejudice. See Ortega Trujillo v. Banco Central Del Ecuador, 379 F.3d 1298, 1301 (11th Cir. 2004) (citing Yoffe v. Keller Ind., Inc., 580 F.2d 126, 129 (5th Cir. 1978)); Ratkovich v. Smith Kline, 951 F.2d 155, 158 (7th Cir. 1991). “Rule 41(a)(2) clearly provides authority to the district court to grant the dismissal on the condition that it be with prejudice.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 320 (5th Cir. 2002); see also Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir. 1995) (“Rule 41(a)(2) implicitly permits the district court to dismiss an action with prejudice in response to a plaintiff’s motion for dismissal without prejudice.”). “If the court chooses
2

to craft conditions, the plaintiff must be given an opportunity to withdraw its motion to dismiss rather than accept those conditions.” BriovaRx, LLC v. Savedra, Civ. No. H-13-3056, 2015 WL 769741, at *2 (S.D. Tex. Feb. 20, 2015) (internal citations omitted); see also Jaramillo, 59 F.3d at 79 (“When a plaintiff requests dismissal without prejudice and the district court intends to dismiss with prejudice, however, the district court must give the plaintiff notice of its intention and a chance to withdraw the request.”) (internal citations omitted). Failure to timely withdraw a motion shall constitute a binding election to accept the condition of dismissal with prejudice. See Mortg. Guar. Ins. Corp. v. Richard Carlyon Co., 904 F.2d 298, 301-02 (5th Cir. 1990); Unioil, Inc. v. E.F. Hutton & Co., 809 F.2d 548, 555 (9th Cir. 1986).
Plaintiffs contend that they are entitled to dismissal of Counts IV, XI, XII, and XIII without prejudice because: (1) these claims “add little, if anything, to Plaintiffs’ basis for future injunctive relief”; (2) granting dismissal “will conserve judicial resources because the pending appeal would be rendered moot and these claims would not require further litigation in this Court”; and (3) granting dismissal will not prejudice Defendants because “[t]hese counts have never been central to Plaintiffs’ case, and Defendants have not expended significant time and effort, if any, preparing to defend these claims” and “dismissal now will actually aid Defendants as it makes any future proceedings in phase two less likely and Defendants will no longer have to appeal or defend these claims.” (Doc. No. 927 at 6, 8.)
Defendants do not object to the dismissal of Counts IV, XI, XII, and XIII. (Doc. No. 961 at 2.) However, Defendants oppose Plaintiffs’ motion on the grounds that the
3

counts should be dismissed with prejudice because “a dismissal without prejudice at this late stage will undoubtedly prejudice Defendants.” (Id. at 4, 11.)
In light of the parties’ agreement that Counts IV, XI, XII, and XIII should be dismissed, the Court concludes that Plaintiffs’ motion should be granted insofar as those counts should be dismissed from the pending litigation. However, in consideration of the status of this case and the significant time and effort that the parties and the Court have exerted in this matter, and the likelihood that Defendants would face future litigation, the Court determines that a dismissal without any conditions will unfairly prejudice Defendants. Therefore, the Court agrees with Defendants that dismissal with prejudice is an appropriate Rule 41(a)(2) condition. However, because Plaintiffs are entitled to notice of the Court’s intention, and a chance to withdraw their voluntary dismissal motion, Plaintiffs may refuse the Court’s Rule 41(a)(2) dismissal condition and withdraw their Rule 41(a)(2) motion. See United States v. One Tract of Real Property, 95 F.3d 422, 425-26 (6th Cir. 1996); Jaramillo, 59 F.3d at 79. II. Class Notice Under Rule 23(e)
Because this is a class action, the Court must determine whether the requirements of Rule 23(e) apply to Plaintiffs’ motion for voluntary dismissal. See Fed. R. Civ. P. 23(e) (“A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such a manner as the court directs.”). Rule 41(a)(2) provides that “[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order,” and Rule 41(a)(1) begins with an introductory clause noting
4

that it is “[s]ubject to Rule 23(e).” Fed. R. Civ. P. 41(a)(1)-(2). Although Rule 41(a)(1), by its plain terms, protects plaintiff class members by subjecting the litigants to the requirements of Rule 23(e), Rule 41(a)(2) is less clear. Courts are divided as to whether the phrase “subject to Rule 23(e)” in Rule 41(a)(1) means that the Rule 23(e) requirements are imputed to the provisions of Rule 41(a)(1), and whether the clause “[e]xcept as provided in Rule 41(a)(1)” in Rule 41(a)(2) implicates the Rule 23(e) requirements. Compare Dixon v. Miller, 599 F. Supp. 395, 396 (N.D. Ill. 1984) (granting plaintiffs’ Rule 41(a)(2) motion after providing notice to classes and holding a fairness hearing), with Catherwood v. Portland Gen. Corp., Civ. No. 92-23-JE, 1992 WL 226930 at *2 (D. Or. June 24, 1992) (granting Rule 41(a)(2) dismissal, but concluding that no Rule 23(e) notice to class was necessary where absent class members would suffer no prejudice).
In light of the fact that a dismissal with prejudice constitutes a rejection of the claims on the merits, and considering the significant stakes underlying this dispute, the Court finds that Plaintiffs’ Rule 41(a)(2) motion is within the ambit of Rule 23(e) and therefore requires Court approval and appropriate notice.
ORDER Based upon the foregoing, and the files, record, and proceedings herein, IT IS HEREBY ORDERED that: 1. The Court intends to grant Plaintiffs’ Motion to Dismiss Counts IV, XI, XII, and XIII of the Third Amended Complaint Without Prejudice (Doc. No. [925]) on the condition that the motion be dismissed with prejudice.
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2. Plaintiffs may refuse the Court’s Rule 41(a)(2) dismissal condition and withdraw their motion on or before June 26, 2015. Failure to timely withdraw the motion shall constitute a binding election to accept the condition of dismissal with prejudice.
3. Pursuant to Rule 23(e), if the Rule 41(a)(2) motion is not withdrawn, the Court will hold a fairness hearing on the dismissal of Counts IV, XI, XII, and XIII on August 10, 2015, at 2:00 p.m., in Courtroom 7C, 7th Floor, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota.
4. Counsel for Plaintiffs is directed to give notice of the hearing and the proposed dismissal to the class members by mail on or before July 20, 2015. The parties shall negotiate the content of the class notice and shall submit a joint proposed notice to the Court on or before July 8, 2015. If the parties are unable to agree on the content of the notice, the parties shall each submit a proposed notice, together with briefing not to exceed ten pages per party, on or before July 13, 2015.

Dated: June 17, 2015

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

6

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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 official capacities,
Defendants.

Civil No. 11-3659 (DWF/JJK)
FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER

Daniel E. Gustafson, Esq., Karla M. Gluek, Esq., David A. Goodwin, Esq., Raina Borrelli, Esq., Lucia G. Massopust, Esq., and Eric S. Taubel, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.
Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Adam H. Welle, and Aaron Winter, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for Defendants.

INTRODUCTION This case challenges the constitutionality of the statutes governing civil commitment and treatment of sex offenders in Minnesota as written and as applied, and in so doing, challenges the boundaries that we the people set on the notions of individual liberty and freedom, the bedrock principles embedded in the United States Constitution. As has been long recognized, the government may involuntarily detain an individual outside of the criminal justice system through the so-called “civil commitment” process, which permits the state to detain individuals who are suffering from acute symptoms of severe mental illness and who are truly dangerous to the public as a result of their psychiatric condition. But our constitutional preservation of liberty requires that we carefully scrutinize any such deprivation of an individual’s freedom to ensure that the civil commitment process is narrowly tailored so that detention is absolutely limited to a period of time necessary to achieve these narrow governmental objectives. After all, the individual who is civilly committed is not being detained in order to be punished for the commission of a crime. If it turns out that the civil commitment is in reality punishment for past crimes or a way to prevent future crimes that might be committed, or, in the words of Justice Anthony M. Kennedy, “[i]f the civil system is used simply to impose punishment after the State makes an improvident plea bargain on the criminal side, then it is not performing its proper function.” Kansas v. Hendricks, 521 U.S. 346, 373 (1997) (Kennedy, J., concurring); see also id. (“We should bear in mind that while incapacitation is a goal common to both the criminal and civil systems of confinement, retribution and general deterrence are reserved for the criminal system alone.”).
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One reason why we must be so careful about civil commitment is that it can be used by the state to segregate undesirables from society by labeling them with a mental abnormality or personality disorder. For example, civil commitment might improperly be used to indefinitely extend the prison terms of individuals who have been criminally convicted of a crime and who have finished serving their defined terms of imprisonment. As the Court has observed previously, the fact that those committed to and confined at the Minnesota Sex Offender Program (the “MSOP”) are sex offenders, who may indeed be subject to society’s opprobrium, does not insulate the criminal and civil justice systems from a fair and probing constitutional inquiry. (See Doc. No. 427 (“February 20, 2014 Order”) at 66.)
It is fundamental to our notions of a free society that we do not imprison citizens because we fear that they might commit a crime in the future. Although the public might be safer if the government, using the latest “scientific” methods of predicting human behavior, locked up potential murderers, rapists, robbers, and, of course, sex offenders, our system of justice, enshrined in rights guaranteed by our Constitution, prohibits the imposition of preventive detention except in very limited circumstances. This strikes at the very heart of what it means to be a free society where liberty is a primary value of our heritage. Significantly, when the criminal justice system and the civil commitment system carry out their responsibilities, the constitutional rights of all citizens, including sex offenders, can be upheld without compromising public safety or disrespecting the rights, concerns, and fears of victims.
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It is against this backdrop that the Court has closely scrutinized the constitutionality of the civil commitment scheme that the State of Minnesota has adopted, which has resulted in the indefinite detention of over 700 sex offenders at the MSOP.
SUMMARY OF DECISION As detailed below, the Court conducted a lengthy trial over six weeks to determine whether it should declare that the Minnesota statutes governing civil commitment and treatment of sex offenders are unconstitutional as written and as applied. The Court concludes that Minnesota’s civil commitment statutes and sex offender program do not pass constitutional scrutiny. The overwhelming evidence at trial established that Minnesota’s civil commitment scheme is a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system. The stark reality is that there is something very wrong with this state’s method of dealing with sex offenders in a program that has never fully discharged anyone committed to its detention facilities in Moose Lake and St. Peter since its inception in 1994. The number of committed individuals at these facilities keeps growing, with a current count of approximately 714 committed individuals and a projection of 1,215 committed individuals by 2022. In light of the structure of the MSOP and the history of its operation, no one has any realistic hope of ever getting out of this “civil” detention. Instead, it is undisputed that there are committed individuals who meet the criteria for reduction in custody or who no longer meet the criteria for commitment who continue to be confined at the MSOP.
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The Court’s determination that the MSOP and its governing civil commitment statutes are unconstitutional concludes Phase One of this case. The next part of this case will involve the difficult question of what the remedy should be to address this complex problem. The public should know that the Moose Lake and St. Peter facilities will not be immediately closed. This case has never been about the immediate release of any single committed individual or committed individuals. Recognizing that the MSOP system is unconstitutional, there may well be changes that could be made immediately, short of ordering the closure of the facilities, to remedy this problem. The Court will hold a hearing to determine what remedy should be imposed, including, but not limited to, the potential remedies set forth in the Conclusion section below. In the meantime, the Court will hold a Remedies Phase pre-hearing conference on August 10, 2015, where all stakeholders, including state legislative and executive leadership, will be called upon to fashion suitable remedies to be presented to the Court.
Moreover, the parties to this case and all stakeholders know that what is true today, was also true before this lawsuit was filed in 2011. That is, there are some sex offenders who are truly dangerous and who should not be released; however, the criminal and civil justice systems should say so and implement appropriate procedures so as to afford individuals their constitutional protections. So too, there are individuals who should have been released, provisionally or otherwise, some time ago, and those individuals should be released with a significant support system and appropriate conditions of supervision, all of which can be accomplished without compromising public safety or the concerns and fears of victims.
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DECISION Based upon the presentations of counsel, including the extensive testimony of the witnesses and the voluminous exhibits produced at trial, as well as counsel’s arguments and post-trial submissions, the entire record before the Court, and the Court being otherwise duly advised in the premises, the Court hereby issues its findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure:
FINDINGS OF FACT 1. This is a civil rights action pursuant to 42 U.S.C. § 1983. 2. The fourteen named Plaintiffs in this case, Kevin Scott Karsjens (“Karsjens”), David Leroy Gable, Jr., Kevin John DeVillion, Peter Gerard Lonergan (“Lonergan”), James Matthew Noyer, Sr., James John Rud, James Allen Barber, Craig Allen Bolte (“Bolte”), Dennis Richard Steiner (“Steiner”), Kaine Joseph Braun, Brian Christopher John Thuringer (“Thuringer”), Kenny S. Daywitt, Bradley Wayne Foster (“Foster”), and Brian K. Hausfeld (collectively, “Named Plaintiffs”), represent a class of over 700 individuals (collectively, “Plaintiffs” or “Class Members”) who are all currently civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services (“DHS”). 3. The seven individual Defendants in this case are all senior managers of the MSOP and employees of the State of Minnesota (collectively, “Defendants”). 4. Defendant Lucinda Jesson (“Commissioner Jesson”) is the Commissioner of DHS. Commissioner Jesson has served in that position since January 2011. Commissioner Jesson is ultimately responsible for all operations of the MSOP.
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5. Defendant Dennis Benson (“Benson”) is the former Executive Director of the MSOP. Benson served in that position from 2008 to 2012. As Executive Director, Benson was primarily responsible for developing the programming and policies of the MSOP.
6. Defendant Kevin Moser (“Moser”) is the Operational Director of the MSOP at Moose Lake. Moser has served in that position since December 2011. Moser is responsible for overseeing all facility and security operations and for setting policies relating to security, facility maintenance, living unit management, and special services.
7. Defendant Tom Lundquist (“Lundquist”) is the Associate Clinical Director of the MSOP at Moose Lake. Lundquist has served in that position since at least September 2010.
8. Defendant Nancy Johnston (“Johnston”) is the Executive Director of the MSOP. Johnston has served in that position since 2012. Johnston is responsible for overseeing the programming, policies, and facilities of the MSOP. As part of these responsibilities, Johnston is vested with the authority to change the operations of the MSOP.
9. Defendant Jannine Hébert (“Hébert”) is the Executive Clinical Director of the MSOP. Hébert has served in that position since 2008. Hébert is responsible for overall treatment programming at the MSOP.
10. Defendant Ann Zimmerman (“Zimmerman”) is the Security Director of the MSOP. Zimmerman has served in that position since 2010. Zimmerman is responsible
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for overseeing security functions and maintaining a secure environment at the MSOP’s Moose Lake facility.
11. Plaintiffs initiated this action against Defendants on December 21, 2011. Plaintiffs filed an Amended Complaint on March 15, 2012, and a Second Amended Complaint on August 8, 2013.
12. Plaintiffs filed the Third Amended Complaint on October 28, 2014. In the Third Amended Complaint, Plaintiffs seek a declaratory judgment that the Minnesota statutes governing civil commitment and treatment of sex offenders are unconstitutional as written and as applied. Plaintiffs do not request that the Court order any specific individual or individuals released from civil confinement. History of Civil Commitment in Minnesota
13. In 1939, the Minnesota Legislature adopted its first civil commitment law, now codified at Minn. Stat. § 526.10, which provides for the civil commitment of any individual found to have a “psychopathic personality” to the Minnesota State Security Hospital in St. Peter, Minnesota. Over the course of the next fifty years, the statute was used primarily as an alternative to criminal punishment, and individuals were civilly committed under the law rather than being criminally charged and convicted. By 1970, civil commitment under the “psychopathic personality” law had dramatically decreased; in the 1970s, only thirteen individuals were civilly committed, and in the 1980s, only fourteen individuals were civilly committed.
14. Following a series of horrific rape and murder crimes that were committed between 1987 and 1991 by recently released sex offenders from state prison, a task force
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on the prevention of sexual violence against women recommended stiffer criminal sentences for dangerous sex offenders and increased use of the “psychopathic personality” law to confine and treat the most dangerous offenders being released from prison.
15. In 1989, the Minnesota Legislature modified the “psychopathic personality” law to include provisions that required the district court sentencing a sex offender to determine whether civil commitment under the statute would be appropriate and to refer such cases to the county attorney.
16. In 1992, the Minnesota Legislature enacted a screening process to evaluate “high-risk” sex offenders before their release from prison upon completing a criminal sentence. As a result of this enactment, commitments under the “psychopathic personality” law increased from two commitments in 1990 to twenty-two commitments in 1992. In contrast to earlier commitments under the statute, which typically involved first-time offenders who were civilly committed as an alternative to criminal punishment, individuals who were civilly committed during the early 1990s were repeat sex offenders who either had failed or refused to participate in sex offender treatment while in prison. Civil Commitment under the Minnesota Civil Commitment and Treatment Act
17. In 1994, the Minnesota Legislature enacted the Minnesota Civil Commitment and Treatment Act: Sexually Dangerous Persons and Sexual Psychopathic Personalities (“MCTA”), Minn. Stat. § 253D (formerly Minn. Stat. § 253B), which provides for the involuntary civil commitment of any individual who is found by a court
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to be a “sexually dangerous person” (“SDP”) and/or a “sexual psychopathic personality” (“SPP”) to the MSOP.
18. Under the MCTA, civil commitment proceedings are initiated by the county attorney, who determines whether good cause exists to file a petition for commitment after receiving a district court’s preliminary determination or a referral from the Commissioner of Corrections. Minn. Stat. § 253D.07, subd. 1.
19. To be civilly committed to the MSOP, an individual must be found to be a SPP and/or SDP under the MCTA.
20. To be committed to the MSOP as a SPP, an individual must be found by a court to have “such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.” Minn. Stat. § 253D.02, subd. 15; Minn. Stat. § 253D.07.
21. To be committed to the MSOP as a SDP, an individual must be found by a court to be someone who “(1) has engaged in a course of harmful sexual conduct”; “(2) has manifested a sexual, personality, or other mental disorder or dysfunction”; and “(3) as a result, is likely to engage in acts of harmful sexual conduct.” Minn. Stat. § 253D.02, subd. 16; Minn. Stat. § 253D.07.
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22. If a court finds that an individual is a SPP and/or SDP, “the court shall commit the person to a secure treatment facility unless the person establishes by clear and convincing evidence that a less restrictive treatment program is available, is willing to accept the [person] under commitment, and is consistent with the person’s treatment needs and the requirements of public safety.” Minn. Stat. § 253D.07, subd. 3.
23. The Commissioner of DHS is vested with the authority to maintain the program, which “shall provide specialized sex offender assessment, diagnosis, care, treatment, supervision, and other services to civilly committed sex offenders,” including “specialized programs at secure facilities,” “consultative services, aftercare services, community-based services and programs, transition services, or other services consistent with the mission of the Department of Human Services.” Minn. Stat. § 246B.02.
24. Following the enactment of the MCTA in 1994, several civilly committed individuals under the newly-enacted legislation challenged the statute’s constitutionality. For example, Dennis Darol Linehan, who was subject to commitment under the new law, appealed the state court’s commitment order on constitutional grounds. At the time of these challenges, the state represented to the courts that the MSOP was an approximately thirty-two-month program for “model patients.”
25. However, the MSOP has developed into indefinite and lifetime detention. Since the program’s inception in 1994, no committed individual has ever been fully discharged from the MSOP, and only three committed individuals have ever been provisionally discharged from the MSOP. By contrast, Wisconsin has fully discharged 118 individuals and placed approximately 135 individuals on supervised release since
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1994. New York has fully discharged 30 individuals—without any recidivism incidents, placed 125 individuals on strict and intensive supervision and treatment (“SIST”) upon their initial commitment, and transferred 64 individuals from secure facilities to SIST.
26. Minnesota presently has the lowest rate of release from commitment in the nation.
27. Since the MCTA’s enactment in 1994, the number of civilly committed sex offenders in Minnesota has grown significantly. The total number of civilly committed sex offenders in Minnesota has grown from less than 30 in 1990, to 575 in 2010, to a current count of approximately 714. From 2000 to 2010, the civilly committed population in Minnesota grew nearly fourfold. The state projects that the number of civilly committed sex offenders will grow to 1,215 by 2022.
28. Minnesota presently has the highest per-capita population of civilly committed sex offenders in the nation.
29. The rate of commitment in Minnesota is 128.6 per million, the rate of commitment in North Dakota is 77.8 per million, and the rate of commitment in New York is 15 per million. The rate of commitment in Minnesota is significantly higher than the rate of commitment in Wisconsin, which is demographically similar to Minnesota.
30. A significant increase in commitment and referral rates followed the abduction and murder of Dru Sjodin in late 2003. Johnston credibly testified that the MSOP experienced a “tremendous growth” in early 2004 following the Dru Sjodin tragedy, which caused the treatment program to expand “at an enormous rate.” Hébert
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credibly testified that the MSOP received over 200 referrals in one month alone in 2003, followed by hundreds of referrals in subsequent months and years. Benson credibly testified that the Dru Sjodin murder “had a direct and dramatic impact on the program.”
31. After the Dru Sjodin tragedy, state law was amended to increase the duration of conditional release for sex offenders and to increase the conditional release options available to a state court when sentencing sex offenders.
32. Minn. Stat. § 609.3455, subd. 6 requires that, when a district court commits a first-time sex offender to the custody of the Commissioner of the Department of Corrections (“DOC”), the court shall provide that, after the offender has been released from prison, the Commissioner of the DOC shall place the offender on conditional release for ten years.
33. Minn. Stat. § 609.3455, subd. 7 requires that, when a district court commits a sex offender with two or more offenses to the custody of the Commissioner of the DOC, the court shall provide that, after the offender has been released from prison, the Commissioner of the DOC shall place the offender on conditional release for the remainder of the offender’s life.
34. Minn. Stat. § 609.3455, subd. 8, and Minn. Stat. § 244.05, subd. 6 provide that conditions of release for sex offenders sentenced to prison may include successful completion of treatment and aftercare programs, random drug testing, house arrest, daily curfews, electronic surveillance, and participation in an appropriate sex offender program.
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35. In December 2003, the DOC began to use a formal review process to identify sex offenders in Minnesota’s correctional facilities for referral to civil commitment following their incarceration. Prior to December 2003, the DOC focused on identifying sex offenders who were clearly dangerous for possible commitment. Beginning in December 2003, the DOC began referring all sex offenders who the DOC believed satisfied the legal commitment standard or who the DOC believed might qualify for civil commitment to county attorneys.
36. In December 2003, the DOC referred 236 additional sex offenders to county attorneys after an extensive review of incarcerated offenders and offenders on supervised release. This increase constituted more than seventy percent of the referrals that were made in the previous thirteen years.
37. Between 2004 and 2008, the DOC made approximately 157 referrals per year, which was 6 times the referral rate between January 1991, when the DOC began reviewing sex offenders for referral to civil commitment, and November 2003. In 2009, the DOC made 114 referrals to county attorneys. Currently, the DOC refers approximately one-third of those reviewed for commitment. Every sex offender that the DOC has referred for commitment has served their full prison sentence.
38. The majority of commitments result from referrals by the DOC to county attorneys.
39. There are significant geographic variations in petition and commitment rates across the state. On average, county attorneys in the seven most populous counties in Minnesota filed commitment petitions for forty-four percent of the referrals between
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1991 and 2008. Between 1991 and 2008, the commitment rates varied from thirty-four percent to sixty-seven percent among the ten judicial districts, with the lowest commitment rates in counties around northeastern Minnesota and the highest commitment rates in counties in southeastern, southwestern, west central, and northwestern Minnesota.
40. Since 1994, various evaluators have published reports that are critical of the state’s civil commitment system, the MCTA, and the MSOP’s treatment program structure. The Governor’s Commission on Sex Offender Policy (“Governor’s Commission”)1 issued a report in January 2005 recommending, among other things, the transfer of the screening process of sex offenders for possible civil commitment to an independent panel and the establishment of a continuum of treatment options. The Office of the Legislative Auditor for the State of Minnesota (“OLA”) issued a report in March 2011 (“OLA Report”) recommending numerous changes to the civil commitment statutory scheme as well as to the MSOP, including revising statutory commitment standards and creating lower cost, reasonable alternatives to commitment at high-security facilities. The Sex Offender Civil Commitment Advisory Task Force (“Task Force”)2
1 The Governor’s Commission consisted of twelve individuals appointed by Governor Tim Pawlenty to focus on current and best practices relating to sentencing, supervision, commitment, healthcare services, and registration of sex offenders. 2 The Task Force was established pursuant to the Court’s August 15, 2012 Order requiring the Commissioner of DHS to establish a fifteen-member advisory task force to examine and recommend legislative proposals to the Commissioner of DHS on topics related to the civil commitment process, less restrictive alternative options, and standards and processes for the reduction of custody. (See Doc. No. 208 at 2.)
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recommended, among other things, that the Commissioner of DHS develop less
restrictive programs throughout the state. The MSOP Program Evaluation Team
(“MPET”)3 found that the MSOP’s requirements for phase progression may be too
stringent and recommended modification of the phase progression criteria. The Rule 706
Experts4 published reports criticizing the commitment and placement of certain
committed individuals and a final report identifying problems with various aspects of the
program, including the lack of periodic assessments. The MSOP Site Visit Auditors5
have issued reports every year since 2006 that have identified deficiencies in the program
and statutory scheme and have included recommendations to improve the civil
commitment system.
41. During the 2013-2014 legislative session, Senator Kathy Sheran introduced
a bill, Senate File Number 1014, which included provisions that would have implemented
3 The MPET was established pursuant to the Court’s November 9, 2012 Order requiring the Commissioner of DHS to create an evaluation team consisting of five qualified sex offender clinical professionals to evaluate sex offender treatment and to address possible program issues associated with phase progression. (See Doc. No. 275 at 2-3.) The MPET Program Evaluation team members include James Haaven (“Haaven”), Christopher Kunkle (“Kunkle”), Robert McGrath (“McGrath”), Dr. William Murphy (“Dr. Murphy”), and Dr. Jill D. Stinson (“Dr. Stinson”).
4 On December 6, 2013, the Court appointed four experts, Dr. Naomi Freeman (“Dr. Freeman”), Deborah McCulloch (“McCulloch”), Dr. Robin Wilson (“Dr. Wilson”), and Dr. Michael Miner (“Dr. Miner”), pursuant to Rule 706 of the Federal Rules of Evidence. (See Doc. No. 393.) The parties jointly nominated these four experts (id. at 1) and the parties submitted their respective proposals regarding the work of the Rule 706 Experts to the Court (see Doc. No. 421).
5 The Site Visit Auditors, Haaven, McGrath, and Dr. Murphy, were hired by the MSOP to review and evaluate its treatment program.
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certain recommendations by the Task Force. Although the bill passed the Senate on May 14, 2013, the bill did not become law because the companion bill that was introduced by Representative Tina Liebling in the House of Representatives, House File Number 1139, did not pass the House.
42. During the 2015-2016 legislative session, Senator Kathy Sheran, Senator Tony Lourey, and Senator Ron Latz introduced a bill, Senate File Number 415, which included provisions that would have established and appropriated funding to a civil commitment screening unit to review cases and conduct evaluations; required biennial reviews; implemented a statewide sex offender civil commitment judicial panel; and established a sex offender civil commitment defense office. The bill was referred to the Senate Committee on Health, Human Services and Housing in January 2015, but did not reach the Senate floor. The MSOP Facilities
43. The MSOP provides housing for its civilly committed residents in three facilities, which include the secure treatment facility in Moose Lake, Minnesota; the secure treatment facility in St. Peter, Minnesota; and the Community Preparation Services (“CPS”), which is located on the St. Peter site outside of the secure perimeter.
44. The Moose Lake facility is the most restrictive facility and CPS is the least restrictive facility.
45. The St. Peter facility is designated for committed individuals in later stages of treatment and for individuals with special needs, such as individuals with cognitive disabilities, individuals with severe mental illness, or vulnerable adults. Approximately
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257 committed individuals currently reside within the secure perimeter of the St. Peter facility.
46. The CPS facility currently has a thirty-eight bed capacity limit. Approximately thirty-two committed individuals currently reside at CPS. This is a significant increase from the six CPS residents in 2010, eight CPS residents in 2011, and nine CPS residents in 2012.
47. As a result of the limited bed capacity at the CPS facility, committed individuals have had to wait for beds to become available before being transferred to CPS from the more restrictive facilities at the MSOP. Dr. Elizabeth Barbo (“Dr. Barbo”), the MSOP Reintegration Director, credibly testified that there have been individuals who have been transferred to CPS who have had to wait due to a lack of bed space at the CPS facility.
48. Since the commencement of this lawsuit in 2011, the MSOP has started constructing a new facility, akin to CPS, with an additional thirty beds. Construction on the new building is projected to be completed by July 1, 2015. Dr. Barbo credibly testified that once construction on the new building is complete, CPS will have fifty-three licensed beds in total.
49. Committed individuals to the MSOP cannot be initially placed at the CPS facility. Dr. Barbo credibly testified that CPS is not available to a newly-committed individual in Minnesota.
50. Minnesota is one of two states that have reported providing housing for its female civilly committed residents in the same facility as its male civilly committed
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residents. Currently, one female, Rhonda Bailey (“Bailey”), resides at the MSOP’s St. Peter facility in a unit with twenty-two male civilly committed residents. Although Bailey has been committed to the MSOP since 1993 and has been housed at the St. Peter facility with all males since 2008, the Site Visit Auditors did not know that Bailey was housed with all men prior to 2014. Until recently, Bailey was receiving group therapy with all men and was denied recommended eye movement desensitization and reprocessing treatment. Despite the Rule 706 Experts’ June 4, 2014 report and recommendation that Bailey be transferred or provisionally discharged from the MSOP to a supervised treatment setting, and Plaintiffs’ motion to transfer Bailey to an appropriate treatment facility, the MSOP has not taken any steps to implement these recommendations. Dr. Haley Fox (“Dr. Fox”), Clinical Director of the MSOP St. Peter facility, credibly testified that it would be optimal if Bailey were placed in a different facility. Dr. Fox further credibly testified that the MSOP has the ability to contract with both in-state and out-of-state facilities to place Bailey in another setting.
51. The evidence clearly establishes that hopelessness pervades the environment at the MSOP, and that there is an emotional climate of despair among the facilities’ residents, particularly among residents at the Moose Lake facility. Bolte, Karsjens, Foster, and Eric Terhaar (“Terhaar”),6 offered compelling testimony regarding
6 Bolte and Terhaar are only two of the sixty-seven committed individuals at the MSOP with no adult convictions (“juvenile-only offenders”). Bolte was civilly committed to the MSOP in June 2006 when he was nineteen years old. Terhaar was civilly committed to the MSOP in January 2009 when he was nineteen years old. On
(Footnote Continued on Next Page) 19

the “hopeless environment” at the MSOP. Bolte credibly testified that he is “[e]xtremely hopeless” because he believes that “the only way to get out is to die.” Foster credibly testified that he does not want to move from the Moose Lake facility to the St. Peter facility and progress in treatment because he is more likely to see his ten-year-old son, who lives near the Moose Lake facility, while in Phase II at Moose Lake than if he moved to St. Peter and lingered in Phase III for years. Dr. Freeman corroborated that many individuals in CPS expressed severe hopelessness. Terrance Ulrich (“Ulrich”), a Senior Clinician at the MSOP Moose Lake facility, agreed that there is a perception among committed individuals that they will never be discharged from the MSOP and that “they might die in the facility.” Ronda White (“White”), a Treatment Psychologist at the MSOP Moose Lake facility, offered persuasive testimony that working at the facility can be difficult “because of the hopelessness.”
52. As of July 1, 2014, the cost of confining committed individuals at the MSOP was approximately $124,465 per resident per year. This cost is at least three times the cost of incarcerating an inmate at a Minnesota correctional facility.
53. There is no alternative placement option to allow individuals to be placed in a less restrictive facility at the time of their initial commitment to the MSOP. Dr. Fox credibly testified that the only facilities in which individuals can be placed at the beginning of their commitment are the secure facilities at Moose Lake and St. Peter.
(Footnote Continued From Previous Page) May 18, 2014, the Rule 706 Experts issued a report recommending Terhaar’s full discharge from the MSOP.
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Sue Persons (“Persons”), former Associate Clinical Director of the MSOP, confirmed that the MSOP lacks less restrictive options, such as halfway houses, for committed individuals at the MSOP. This lack of less restrictive facilities and programs undermines the MCTA’s provision allowing a committing court to consider placing an individual at a less restrictive alternative.
54. It is undisputed that there are civilly committed individuals at the MSOP who could be safely placed in the community or in less restrictive facilities. McCulloch credibly testified that there are individuals at both the Moose Lake and St. Peter facilities who could be treated in a less restrictive environment. Similarly, Dr. Nicole Elsen (“Dr. Elsen”), Clinical Supervisor of the MSOP St. Peter facility, James Berg (“Berg”), Associate Clinical Director of the MSOP, Ulrich, Benson, Persons, Peter Puffer (“Puffer”), Clinical Director of the MSOP Moose Lake facility, Hébert, Johnston, Anne Barry (“Deputy Commissioner Barry”), Deputy Commissioner of DHS Direct Care and Treatment, and Dr. Fox, all credibly testified that there are committed individuals at the MSOP, including some of the sixty-seven juvenile-only offenders at the MSOP, who could be treated safely in a less secure facility.
55. The Task Force recommended that the Commissioner of DHS develop less restrictive programs throughout the state. The Task Force recommended that less restrictive facilities be designed to serve both those who are already civilly committed to secure facilities as well as those who are subsequently civilly committed to the MSOP.
56. In recent years, DHS attempted to provide less restrictive placement options for civilly committed individuals at the MSOP. In September 2013,
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Commissioner Jesson sent a letter to the Minnesota Legislature identifying committed individuals at the MSOP who could be transferred to an existing DHS site in Cambridge, Minnesota. Commissioner Jesson expected the facility to become available to the MSOP in 2014. Commissioner Jesson credibly testified that she planned to transform the Cambridge facility to become a less restrictive alternative for individuals committed as sex offenders. However, those efforts were halted by Governor Dayton’s November 2013 letter. In that letter, Governor Dayton directed Commissioner Jesson to suspend DHS’ plans to transfer any sex offenders to a less restrictive facility such as Cambridge until: (1) the Task Force issued its findings and recommendations; (2) the legislature had the opportunity to review existing statutes and make any necessary revisions; and (3) the legislature and the Governor’s Administration have agreed to and provided sufficient funding for the additional facilities, programs, and staff necessary for the program’s successful implementation.
57. The Task Force issued its final findings and recommendations on December 2, 2013. After the 2013-2014 legislative session, Minnesota renewed efforts to create less restrictive alternatives that could be used to relocate individuals committed to the MSOP. Commissioner Jesson credibly testified that DHS recently entered into third-party contracts to allow committed individuals to be placed outside of the current facilities in Moose Lake and St. Peter. Dr. Barbo credibly testified that the MSOP entered into approximately fifteen contracts for transitioning housing and adult foster care or treatment services. Despite this, there are currently only a very limited number of beds available in the MSOP’s contracted alternative placement options. Outside of CPS,
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the MSOP has less than twenty beds available for less restrictive alternative placements. In addition, these contracts are only for a limited type of population at the MSOP. The MSOP does not have any contracts in place to allow vulnerable adults in the Assisted Living Unit at the MSOP to be placed in other facilities. A Class Member, Harley Morris (“Morris”), passed away while he was on hospice care at the MSOP’s Moose Lake facility.
58. The evidence overwhelmingly demonstrates, as Dr. Fox concluded, that providing less restrictive confinement options would be beneficial to the State of Minnesota and the entire civil commitment system without compromising public safety. The MSOP Treatment Program
59. The MSOP Program Theory Manual, the MSOP Treatment Manual, and the MSOP Clinician’s Guide describe the MSOP’s program model.
60. The stated goal of the MSOP’s treatment program, observed in theory but not in practice, is to treat and safely reintegrate committed individuals at the MSOP back into the community.
61. Currently, the MSOP treatment program is organized into three phases of indeterminate length.
62. The current three-phase program began in 2008 after Hébert became Executive Clinical Director of the MSOP. Prior to 2008, the MSOP used various programming over the years. Steiner credibly testified that there have been four or five clinical directors during his commitment at the MSOP, and that the MSOP’s treatment program changed four or five times with each change in clinical leadership.
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63. Currently, Phase I of the MSOP treatment program focuses on rule compliance, emotional regulation, and treatment engagement. In Phase I, the MSOP emphasizes learning to comply with facility rules and expectations, as well as providing an introduction to basic treatment concepts. However, in Phase I, individuals do not receive any specific sex offense related therapy.
64. Phase II focuses on identifying and addressing patterns of sexually abusive behavior and cycles. In Phase II, the MSOP emphasizes discussion and exploration of the committed individual’s history of sexual offending behavior and maladaptive patterns of behavior, along with the motivations for those behaviors.
65. Phase III focuses on reintegration into the community. In Phase III, the MSOP emphasizes application of skills learned in Phase II to daily life, demonstrating utilization of pro-social coping strategies, and reintegrating back to the community.
66. Reintegration services are not available to individuals committed at the MSOP until they are in Phase III of the treatment program. Puffer, Darci Lewis (“Lewis”), a clinician at the MSOP Moose Lake facility, and Dr. Fox each credibly testified that reintegration training and services do not start until Phase III. Johnston credibly testified that the MSOP’s reintegration staff does not assist committed individuals who are in Phase I or Phase II with discharge planning, which Johnston described as merely “finding an address and a place to live and putting together a supervision plan.” Although Hébert credibly testified that the provisional discharge plan is “certainly more than an address,” Hébert confirmed that the MSOP does not assist
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committed individuals with finding an address as part of a provisional discharge plan when they are initially committed to the MSOP or are in an earlier treatment phase.
67. Although the MSOP’s Treatment Manual states that individuals who are civilly committed at the MSOP may start treatment in other phases, virtually every offender enters the treatment program in Phase I. For example, Lewis credibly testified that all committed individuals are placed in Phase I of the treatment program at the Moose Lake facility and that she was not aware of any individuals who had started in any other phase.
68. There are no reports or assessments conducted at the time of admission to determine what phase of treatment a committed individual should be placed in at the MSOP.
69. The MSOP does not have a policy of seeking to obtain documents pertaining to a committed individual from the DOC when the DOC fails to provide them to the MSOP when a committed individual is initially placed at the MSOP. Dr. Elizabeth Peterson (“Dr. Peterson”), Treatment Assessment Unit Supervisor of the MSOP Moose Lake facility, credibly testified that whether MSOP will be able to obtain the records varies by file and that the MSOP does not always obtain all of the documents or records.
70. The MSOP does not have a practice of considering past participation in sex offender treatment when placing committed individuals into assigned treatment phases or when attempting to individualize treatment. Bolte credibly testified that he started in Phase I, even though he had participated in sex offender treatment in previous juvenile
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placements. Thuringer credibly testified that he started in Phase I, despite completing an inpatient treatment program prior to his commitment. Puffer credibly testified that the MSOP should assess committed individuals at the MSOP who have had sex offender treatment prior to commitment to determine if they are in the correct phase of the treatment program.
71. Some committed individuals at the MSOP are not in the proper phase of treatment. The MPET reported that thirty percent of the Phase I patient files reviewed reflected that the patients were not placed in the proper phase based on the MSOP’s own policies. Since receiving the MPET Report, the MSOP has not reassessed all committed individuals to determine if they are in the proper phase of treatment. In addition, the MSOP clinicians credibly testified that there are individuals who are in the wrong treatment phase. For example, Lewis credibly testified that both Steiner and Foster should have been allowed to progress to a different treatment phase and should be moved to Phase III.
72. The requirements for progression from Phase I to Phase II are: (1) two consecutive quarterly reports that indicate the individual has achieved at least satisfactory scores of three plus out of five on the Phase I Matrix factors; (2) a score of at least a two on the Matrix Factors of healthy lifestyle and life enrichment; (3) participation in a maintenance polygraph; (4) two consecutive quarters of no major Behavioral Expectation Reports; and (5) active treatment participation as evidenced by requesting group time at least fifty percent of the time in the previous quarter.
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73. The requirements for progression from Phase II to Phase III are: (1) two consecutive quarterly reports that indicate an average of four or better on each Phase II Matrix factor; (2) taking of a PPG or Abel/ABID assessment and addressing the results in treatment; (3) taking a maintenance polygraph to verify the individual’s report regarding adherence to program reports; (4) taking a full disclosure polygraph to verify an agreed-upon sexual history; and (5) successfully addressing in core group, through goal presentation and discussion, the individual’s offense cycle/chain, roots of offending, relapse prevention plan, and an understanding of sexual arousal patterns and a plan to manage sexual deviance.
74. The phase progression requirements apply to all committed individuals at the MSOP, including those in the Nova Unit for individuals with severe mental illness, those in the Alternative Program for individuals with cognitive disabilities, and those in the Young Adult Unit for juvenile-only offenders. Puffer and Dr. Fox credibly testified that the MSOP’s phase progression policy applies to all committed individuals at the MSOP. Persons credibly testified that the MSOP treatment program is not structured differently for juvenile-only offenders, and that the three-phase progression model applies equally to juvenile-only offenders. Ulrich credibly testified that individuals in the mental health unit must meet the same phase progression criteria as all other committed individuals at the MSOP.
75. Committed individuals at the MSOP must meet the progression policy requirements outlined in the Clinician’s Guide in order to progress through the treatment program. Puffer credibly testified that committed individuals generally must satisfy the
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requirements for each phase in order to progress through treatment. Dr. Elsen credibly testified that she has never progressed an individual through the MSOP treatment program who has not satisfied each of the phase progression requirements listed in the Clinician’s Guide.
76. Committed individuals at the MSOP may not skip phases of the treatment program. Persons credibly testified that it is not possible for committed individuals to skip a phase in the phase progression process.
77. The MSOP uses the Goal Matrix for Phases I, II, and III to identify treatment goals for each phase of the program, to measure treatment progress, and to reference as a benchmark for moving committed individuals between phases of the program. The MSOP began using the Goal Matrix in 2009.
78. Treatment progress is scored using the Matrix factors. Puffer credibly testified that committed individuals are scored on their Matrix factors to assess their treatment progress and to determine whether they should progress in treatment. Dr. Fox credibly testified that the Matrix factors are the primary tool used for measuring treatment progress at the MSOP.
79. The Matrix factors include group behavior, attitude toward change, self-monitoring, thinking errors, emotional regulation, interpersonal skills, sexuality, cooperation with rules/supervision, prosocial problem solving, productive use of time, healthy sexuality, and life enrichment.
80. The Matrix factors are used for all committed individuals at the MSOP, including those in the Nova Unit for individuals with severe mental illness, those in the
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Alternative Program for individuals with cognitive disabilities, those in the Assisted Living Unit for vulnerable adults, those in the Behavior Therapy Unit for individuals who have demonstrated problematic behavioral issues, and those in the Young Adult Unit for juvenile-only offenders.
81. The Matrix factors are scored using the same scoring spectrum for all committed individuals at the MSOP, including those in the Nova Unit for individuals with severe mental illness, those in the Alternative Program for individuals with cognitive disabilities, those in the Assisted Living Unit for vulnerable adults, those in the Behavior Therapy Unit for individuals who have demonstrated problematic behavioral issues, and those in the Young Adult Unit for juvenile-only offenders.
82. The Matrix factors are not used by any other civil commitment program in the country.
83. Independent evaluators and internal staff at the MSOP have repeatedly observed confusion regarding how the Matrix factors were to be used and inconsistencies with the application of the Matrix factors. McCulloch and Puffer credibly testified that the MSOP clinicians were not applying and scoring the Matrix factors in a consistent manner on committed individuals at the MSOP. Dr. Mischelle Vietanen (“Dr. Vietanen”), the former MSOP Clinical Supervisor, credibly testified that she frequently saw individuals’ scores on the Matrix factors fluctuate, due to changes in staffing, and that she was concerned by the lack of inter-rater reliability of the Matrix factors. Persons credibly testified that newer clinicians are more likely to give
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lower Matrix scores. The Site Visit Auditors expressed concerns regarding the scoring accuracy and consistency of scoring of the Goal Matrix across the MSOP assessors.
84. Despite the critical reports by external reviewers, the MSOP has not implemented any system to determine how clinicians are scoring the Matrix factors or whether there is any consistency in scoring the Matrix factors.
85. The MSOP did not provide training to all staff on the Matrix factors until 2013 and 2014, and the MSOP did not provide any training on the Matrix scoring until 2014. Dr. Vietanen credibly testified that she did not receive any training on the Matrix factors.
86. Inconsistent scoring on the Matrix factors can slow treatment progression. Puffer and Dr. Fox credibly testified that inconsistency in scoring the Matrix factors could affect a committed individual’s ability to progress in treatment phase.
87. To progress in treatment phase, a committed individual must have at least two consecutive quarters with no major Behavioral Expectation Reports (“BERs”), even if the major BERs are not related to sexual offending. Elsen credibly testified that she has never progressed an individual through the MSOP treatment program who has not achieved two consecutive quarters with no major BERs as required by the MSOP’s phase progression policy.
88. Minor BERs, including those unrelated to sexual offending, can prevent a committed individual from progressing in treatment phase. Hébert and Berg credibly testified that minor BERs can hinder treatment progression. Bolte credibly testified that
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receiving multiple minor BERs can prevent phase progression. Lewis credibly testified that minor BERs can be considered in making phase progression decisions.
89. BERs can also affect scoring on the Matrix factors. Bolte credibly testified that he was told by clinical staff that his Matrix scores were lowered due to BERs.
90. Committed individuals can be regressed in treatment as a result of receiving major BERs. Foster was moved from Phase II back to Phase I after receiving a major BER for possessing adult-themed pornography.
91. As of October 2012, the MSOP phase progression design time line indicated a range of six to nine years for a “model client” to progress from Phase I through Phase III.
92. Currently, the treatment program at the MSOP does not have any delineated end point.
93. The lack of clear guidelines for treatment completion or projected time lines for phase progression impedes a committed individual’s motivation to participate in treatment for purposes of reintegration into the community. Bolte credibly testified that when he was initially committed to the MSOP, he was told that he would be “fast-tracked” through the program and would be one of the first individuals to ever complete the program, but that now, after years of being in Phase I without progressing, he has lost motivation to participate in the treatment program. The OLA Report found that lack of client motivation has been a barrier to progression in treatment at the MSOP. The Site Visit Auditors reported that committed individuals “consistently expressed concerns that slow movement through the program . . . was demoralizing, increased
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hopelessness, and negatively impacted motivation and engagement.” The Governor’s Commission reported that “those who have made progress in treatment should have an expectation that their confinement in civil commitment will end one day.”
94. Some committed individuals at the MSOP, such as Steiner, have been confined for more than twenty years.
95. Progression through the treatment program at MSOP has historically been very slow. As of June 30, 2010, approximately fifty percent of committed individuals at the MSOP were in Phase I, twenty-one percent were in Phase II, seven percent were in Phase III, and twenty-one percent had declined treatment. As of February 2011, only thirty committed individuals at the MSOP were in Phase III. As of the first quarter of 2012, sixty-five percent of committed individuals at the MSOP were in Phase I, twenty-five percent were in Phase II, four percent were in Phase III, and six percent had declined treatment.
96. Committed individuals only began progressing through the treatment phases at the MSOP in recent years. As of the fourth quarter of 2014, thirty-nine percent of committed individuals at the MSOP were in Phase I, fifty-one percent were in Phase II, nine percent were in Phase III, and one percent had declined treatment.
97. Independent evaluators and outside experts have repeatedly criticized the lack of progression. Every year since 2006, the Site Visit Auditors have voiced concerns in all of their evaluation reports to the MSOP about the disproportionately high number of committed individuals in Phase I compared to those in Phase III of the treatment program. In 2011 and 2012, the Site Visit Auditors reported that “[s]low movement
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through the program and the multiple required legislative steps for discharge in Minnesota hampers program effectiveness” and that “[t]he lack of clients ‘getting out’ can be demoralizing to clients and staff, and in the long run may increase security concerns.” These concerns have never been successfully addressed.
98. Some committed individuals in the Alternative Program have been in Phase I for over five years or in Phase II for over five years. Puffer credibly testified that some committed individuals in the Alternative Program may not be able to complete the treatment program due to cognitive capacity limitations.
99. As of March 31, 2013, the MSOP identified 131 individuals who had been in Phase I for 36 months or more, 67 individuals who had been in Phase II for 36 months or more, and 14 individuals who had been in Phase III for 36 months or more.
100. Although CPS was originally designed to last approximately nine months, no committed individual at the MSOP has moved through CPS in nine months or less. The first two individuals who were ever placed at CPS, sometime before 2010, John Rydberg (“Rydberg”) and Thomas Duvall (“Duvall”), still remain at CPS.
101. There are committed individuals at the MSOP who have reached the maximum benefit and effect of treatment at the MSOP. Dr. Elsen identified individuals who had reached “maximum treatment effect” at the MSOP who could not receive any further benefit from sex offender treatment. Similarly, the Site Visit Auditors reported that there are individuals at the MSOP who may have reached the maximum benefit within the treatment program and who could receive services in a different setting.
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102. The MSOP has no system or policy in place to ensure that committed individuals who are not progressing through the treatment phases in a timely manner are reviewed by clinicians at the MSOP or by external reviewers. Haaven credibly testified that the most important change he would like to see at the MSOP is a mechanism to identify barriers to phase progression.
103. Some committed individuals at the MSOP have regressed as a result of changes to the treatment program phase progression model. For example, Steiner had progressed to the last phase of the treatment program; the MSOP then adopted the current three-phase model, resulting in Steiner starting over and moving back to the MSOP Moose Lake facility.
104. Clinical staffing shortages and turnover at the MSOP have hindered the ability of the MSOP to provide treatment as designed and have impeded treatment progression of committed individuals at the MSOP. White credibly testified that since 2008, shortages in the clinical staffing at the MSOP have impacted the therapeutic alliance between committed individuals and their clinicians and have slowed down the treatment progression for some individuals. Berg credibly testified that a high vacancy rate of clinicians and a high turnover rate of clinicians at the MSOP could slow treatment progress. McCulloch acknowledged that staffing shortages have been a reoccurring problem at the MSOP due to staffing vacancies. Dr. Fox confirmed that the MSOP has experienced staff shortages and that, as a result of those shortages, clinicians’ caseloads have tended to be greater at times, which have affected the quality of treatment. The
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Site Visit Auditors also confirmed that frequent staff turnover, particularly at Moose Lake, has negatively impacted therapeutic treatment engagement.
105. Committed individuals at the MSOP are uncertain and unaware of how to progress through treatment. For example, Bolte credibly testified that “[n]obody knows how to complete the program.” Terhaar credibly testified that he is confused as to what scores he needs to progress from Phase I to Phase II of the treatment program. Lonergan credibly testified that he does not know what he needs to do to progress to Phase II of the treatment program.
106. Some individuals confined at the MSOP have stopped participating in treatment, despite satisfying phase progression requirements, because they knew it was futile and they would never be released. Thuringer credibly testified that some individuals have been confined at the MSOP for over twenty years and have completed the treatment program three times, but are currently only in Phase II due to subsequent treatment program changes; he concluded it would be “futile” to even attempt to progress through the treatment program. Dr. Peterson credibly testified that some individuals do not participate in treatment because they do not see the purpose of participating if they do not believe they will ever be discharged from the MSOP, or because they previously participated in treatment but were forced to restart the treatment program when the program changed. Risk Assessments
107. There are individuals who meet the reduction in custody criteria or who no longer meet the commitment criteria, but who continue to be confined at the MSOP.
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108. Defendants are not required under the MCTA to conduct periodic risk assessments after the initial commitment to determine if individuals meet the statutory requirements for continued commitment or for discharge.
109. The large majority of states require regular risk assessments of all civilly committed sex offenders. For example, the Wisconsin and New York civil commitment statutes require annual risk assessments, and the Texas civil commitment statute requires biannual reviews and a hearing before a court to determine whether an individual no longer meets the criteria for commitment.
110. As of 2011, Minnesota and Massachusetts were the only two states that did not require annual reports to the courts regarding each sex offender’s continuing need to be committed.
111. Significantly, a full risk assessment is the only way to determine whether a committed individual meets the discharge criteria.
112. Risk assessments are only valid for approximately twelve months. Johnston and Puffer credibly testified that if a risk assessment has not been conducted within the past year on civilly committed individuals at the MSOP, the MSOP does not know whether those individuals meet the statutory criteria for commitment or for discharge. Hébert credibly testified that all juvenile-only offenders who have not had a risk assessment within the last year should be reassessed to determine whether they meet the statutory criteria for continued commitment or for discharge.
113. Risk assessments need to be performed regularly to account for new research, aging of the individual, and to track an individual’s changes through treatment.
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114. The MSOP does not conduct risk assessments on a regular, periodic basis to determine whether an individual continues both to need further inpatient treatment and supervision for a sexual disorder and continues to pose a danger to the public.
115. The MSOP historically has not conducted risk assessments on civilly committed individuals outside of the petitioning process. Dr. Elsen, Puffer, Berg, and Dr. Fox credibly testified that risk assessments are only performed when a petition for a reduction in custody is filed.
116. In 2013, DHS attempted to implement a rolling risk assessment process. Commissioner Jesson, in a letter to Johnston, stated that the MSOP will implement a new plan so that all Class Members receive a full risk assessment on a rolling schedule. Although Hébert and Johnston testified that the MSOP had begun to undertake one or two risk assessments per month outside the petitioning process, many witnesses were not aware of Commissioner Jesson’s letter or the proposed directive. For example, Dr. Elsen was unaware that the MSOP was conducting any rolling risk assessments. Puffer credibly testified that he had never seen Commissioner Jesson’s letter regarding rolling risk assessments. Dr. Anne Pascucci (“Dr. Pascucci”), a Forensic Evaluator at the MSOP, credibly testified that she had not heard of Commissioner Jesson directing the MSOP to begin conducting risk assessments on a rolling basis. Dr. Fox credibly testified that the MSOP had not established a new policy regarding rolling risk assessments, but the MSOP had been “having conversations about doing more risk assessments on a more regular basis.” At the proposed rolling assessment rate, it would take between thirty and
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sixty years to finish just one risk assessment for each Class Member currently committed at the MSOP.
117. The MSOP could hire outside assessors to perform these rolling risk assessments. Hébert and Johnston credibly testified that the MSOP could hire outside experts to conduct risk assessments.
118. Only recently has the MSOP begun conducting risk assessments outside of the petitioning context. Recently, Dr. Pascucci was asked by Dr. Lauren Herbert (“Dr. Herbert”), the MSOP Risk Assessment Director, to conduct a risk assessment on Class Member Chad Plank (“Plank”). This is the first risk assessment the MSOP has ever conducted outside of the petitioning process.
119. There are currently eight risk assessors employed by the MSOP. 120. The MSOP has an internal forensic risk assessment unit. Risk assessments are not conducted by independent examiners outside of the MSOP unless a committed individual has a petition before the Judicial Appeal Panel (the “Supreme Court Appeal Panel” or the “SCAP”). 121. Outside evaluators and reports, including the OLA Report, have discussed the benefits of independent reviewers for committed individuals. The OLA Report found that requiring an independent review body would shelter the MSOP from making unpopular decisions and would ensure that decisions on reduction in custody petitions are based on risk, not treatment performance. 122. There are no techniques or actuarial tools currently available for conducting an assessment of long-term risk for committed individuals with juvenile-only offenses.
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Dr. Pascucci credibly testified that current actuarial assessment tools are not validated for juvenile-only offenders, and, therefore, risk assessment instruments cannot quantitatively assess risk for juvenile-only offenders. Dr. Amanda Powers-Sawyer (“Dr. Powers-Sawyer”), former Interim Clinical Director at the MSOP, credibly testified that long-term risk for juvenile-only offenders is impossible to calculate. The Rule 706 Experts reported that there are no techniques currently available for conducting an assessment of long-term risk for individuals with juvenile-only sexual offenses.
123. Juvenile-only offenders have low recidivism rates compared to adult offenders. Dr. Powers-Sawyer credibly testified that the majority of juvenile-only offenders do not recidivate. Dr. Freeman credibly testified that the re-offense rate for juvenile sex offenders is approximately five percent. In comparison to the sixty-seven juvenile-only offenders currently committed to the MSOP, McCulloch credibly testified that only two or three juvenile-only offenders have been committed to the Wisconsin sex offender program, and Dr. Freeman credibly testified that no juvenile-only offenders are committed to the New York sex offender program, as juvenile-only offenders cannot be civilly committed in New York.
124. The MSOP does not have a manual or guide regarding how to conduct risk assessments.
125. The MSOP risk assessors consider whether a committed individual has major or minor BERs when conducting a risk assessment.
126. The MSOP risk assessors most commonly use the Static-99R and the Stable-2007 as actuarial risk assessment tools.
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127. The Static-99R is a risk assessment tool that measures static factors, which are generally unchangeable in nature, whereas the Stable-2007 measures dynamic risk factors that are changeable in nature. The Static-99R is scored by assessing the offender on a list of objective criteria, including the number of prior sexual offenses, whether they had unrelated victims, and age at release, which provides predictive recidivism rates based on the corresponding risk category. The Static-99R and the Stable-2007 can be combined to assess an overall risk category.
128. Both the Static-99R and Stable-2007 have limitations to their use as risk assessment tools. The Static-99R does not distinguish age for an individual who is over sixty years old or an individual who is over ninety years old. Dr. Herbert credibly testified that both the Static-99R and the Stable-2007 should be used with caution on individuals with cognitive disabilities. Dr. Pascucci credibly testified that the Stable-2007 is not generally used on individuals with cognitive limitations or severe mental illness and that when it is used, it is used with caution.
129. The MSOP risk assessors did not consider the statutory criteria in risk assessment reports until late 2010 or early 2011.
130. The MSOP risk assessors do not receive any formal legal training. Dr. Pascucci and Dr. Jennifer Jones (“Dr. Jones”), a Risk Assessor at the MSOP, credibly testified that they did not receive any training regarding the constitutional standards for commitment or discharge.
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131. The standard set forth in the Minnesota Supreme Court’s Call v. Gomez decision in 1995 was not incorporated into the language of the MSOP risk assessments until the risk assessment for Terhaar in June 2014. Petitioning Process for Reduction in Custody
132. The MCTA provides that the process for a “reduction in custody,” or a “transfer out of a secure treatment facility, a provisional discharge, or a discharge from commitment,” begins with filing a petition with the Special Review Board (“SRB”). Minn. Stat. § 253D.27, subds. 1 & 2.
133. At least six months after initial commitment or a final decision on a prior petition, a committed individual or the Executive Director of the MSOP may file a petition for a reduction in custody with the SRB. Minn. Stat. § 253D.27, subd. 2.
134. Other state commitment statutes, including the Wisconsin and New York statutes, allow committed individuals to petition the committing court at any time to be discharged or for a reduction in custody.
135. Upon the filing of a petition, the SRB holds a hearing on the petition, and within thirty days of the hearing, the SRB issues a report with written findings of fact and recommendations of denial or approval of the petition to the SCAP. Minn. Stat. § 253D.27, subds. 3 & 4.
136. Petitions are generally heard in the order in which they are received. 137. The SCAP has the sole authority to grant a reduction in custody. No reduction in custody recommended by the SRB is effective until it has been both
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reviewed by the SCAP and until fifteen days after the SCAP issues an order affirming, modifying, or denying the SRB’s recommendation. Minn. Stat. § 253D.27, subd. 4.
138. Upon receipt of the SRB’s recommendation, the committed individual, the county attorney of the county from which the person was committed or the county of financial responsibility, or the commissioner may petition the SCAP for a rehearing and reconsideration of the SRB’s recommendation. Minn. Stat. § 253D.28, subd. 1(a). The SCAP hearing must be held “within 180 days of the filing of the petition [with the SCAP] unless an extension is granted for good cause.” Id. If no party petitions the SCAP for a rehearing or reconsideration within thirty days, the SCAP shall either “issue an order adopting the recommendations of the [SRB] or set the matter on for a hearing.” Minn. Stat. § 253D.28, subd. 1(c).
139. At the SCAP rehearing, “[t]he petitioning party seeking discharge or provisional discharge bears the burden of going forward with the evidence, which means presenting a prima facie case with competent evidence to show that the person is entitled to the requested relief.” Minn. Stat. § 253D.28, subd. 2(d).
140. At the SCAP rehearing, the petitioning party seeking a transfer “must establish by a preponderance of the evidence that the transfer is appropriate.” Minn. Stat. § 253D.28, subd. 2(e).
141. A party “aggrieved by an order of the [SCAP]” may appeal the SCAP decision to the Minnesota Court of Appeals. Minn. Stat. § 253D.28, subd. 4; see also Minn. Stat. § 253B.19, subd. 5.
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142. To be transferred out from a secure treatment facility, the SCAP must be satisfied that transfer is appropriate based on five factors: “(1) the person’s clinical progress and present treatment needs; (2) the need for security to accomplish continuing treatment; (3) the need for continued institutionalization; (4) which facility can best meet the person’s needs; and (5) whether transfer can be accomplished with a reasonable degree of safety for the public.” Minn. Stat. § 253D.29, subd. 1.
143. For a provisional discharge, the SCAP must be satisfied that “the committed person is capable of making an acceptable adjustment to open society” based on two factors: “(1) whether the committed person’s course of treatment and present mental status indicate there is no longer a need for treatment and supervision in the committed person’s current treatment setting; and (2) whether the conditions of the provisional discharge plan will provide a reasonable degree of protection to the public and will enable the committed person to adjust successfully to the community.” Minn. Stat. § 253D.30, subd. 1.
144. For a full discharge, the SCAP must be satisfied that, after a hearing and recommendation by a majority of the SRB, “the committed person is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.” Minn. Stat. § 253D.31. In determining whether a discharge shall be recommended, the SRB and the SCAP “shall consider whether specific conditions exist to provide a reasonable degree of protection to the public and to assist the committed person in adjusting to the community.” Id.
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145. The discharge criteria is more stringent and harder to prove than the commitment criteria.
146. The SRB and the SCAP, with limited exception, will not grant provisional discharge or discharge without the support of the MSOP. The SRB nearly always follows the MSOP’s recommendation. Dr. Fox credibly testified that the SRB and the SCAP have agreed with and granted petitions that the MSOP has supported and that she could not recall the SCAP not agreeing with the MSOP’s recommendation in support of an individual’s petition. Deputy Commissioner Barry credibly testified that the SRB generally follows the MSOP’s recommendations for provisional discharge or discharge.
147. Since January 1, 2010, the SRB has recommended granting twenty-six petitions for transfer, eight petitions for provisional discharge, and no petitions for discharge.
148. The MSOP supported all of the provisional discharge petitions that were recommended to be granted by the SRB.
149. As of July 2014, the SCAP has granted transfer to CPS twenty-eight times, provisional discharge once, and full discharge zero times.
150. SRB hearings are scheduled by the MSOP. Currently, the SRB may hold up to four hearings a day for a total of sixteen hearings per month, although there are no restrictions on the number of hearings the SRB can hold.
151. There is no time limit on the SCAP decisions. 152. The SRB and the SCAP petitioning process, from the filing of the initial petition to receiving a final SCAP decision, can take years. Karsjens credibly testified
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that he filed a petition for a reduction in custody on October 11, 2011, and he did not receive a final order until June 10, 2013. The petitioning process for Duvall took approximately five years. Deputy Commissioner Barry credibly testified that some petitions can take longer than five years to complete the petitioning process. Johnston credibly testified that these time lines for the SRB hearings are too long.
153. As of June 2014, approximately 105 SRB petitions were pending decision and 48 petitions were pending a SCAP decision.
154. The shortest number of days between the time a petition is filed and the time of the hearing on the petition is twenty-nine days. This time period referred to Terhaar’s petitioning process, which occurred after the Rule 706 Experts issued a report on May 18, 2014, unanimously recommending full discharge for Terhaar, and after the Court issued an order on June 2, 2014, ordering Defendants to show cause why Terhaar’s continued confinement is not unconstitutional and why Terhaar should not be immediately and unconditionally discharged from the MSOP.
155. The MSOP has previously attempted to address delays in the petitioning process, but has not attempted to address the problem recently. In 2013, Commissioner Jesson set a goal of having petitions supported by the MSOP heard more quickly.
156. The SRB and the SCAP process is unduly lengthy and is bogged down with difficult procedures; the process denies individuals the services necessary to navigate the process.
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157. These delays, in substantial part, are a result of insufficient funding and staffing. Berg and Puffer credibly testified that the MSOP lacks sufficient staff to complete the reports needed by the SRB and the SCAP.
158. Commissioner Jesson determines the number of SRB members and selects the SRB members after an application process. Currently, seventeen or eighteen positions out of twenty-four available positions are filled.
159. A committed individual retains the right to the writ of habeas corpus during the petitioning process. Minn. Stat. § 253B.23, subd. 5. However, the habeas procedure does not provide for an independent psychologist or psychiatrist to conduct an evaluation of the petitioning committed individual, and the petitioner is not provided counsel as a matter of right.
160. There is no bypass mechanism available for individuals to challenge their commitment.
161. Defendants are not required under the MCTA to petition for transfer or reduction in custody of committed individuals who meet the statutory requirements for such a reduction in custody.
162. There is no policy or practice at the MSOP, nor a requirement in the statute, that requires the MSOP to file a petition on an individual’s behalf, even if the MSOP knows or reasonably believes that the individual no longer satisfies the statutory or constitutional criteria for commitment or for discharge.
163. Defendants could choose and have the discretion to file a petition for a reduction in custody on behalf of committed individuals at the MSOP.
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164. The MSOP knows that there are Class Members who meet the reduction in custody criteria or who no longer meet the commitment criteria but who continue to be confined at the MSOP.
165. Despite its knowledge that individuals have met the criteria for release, the MSOP has never petitioned on behalf of a committed individual for full discharge.
166. The MSOP had never filed a petition for a reduction in custody on behalf of a committed individual before 2013.
167. The MSOP has only filed a petition for a reduction in custody on behalf of a committed individual seven times in the history of the program. The seven petitions were for six individuals in the Alternative Program who were designated for transfer to Cambridge, but who ultimately were never transferred to Cambridge, and for Terhaar for transfer to CPS.
168. The MSOP has only filed a petition for transfer to CPS on behalf of one individual in the history of the program. In October 2014, Johnston filed a petition for transfer to CPS on behalf of Terhaar. Terhaar credibly testified that no one from the MSOP told him about the filing of the petition on his behalf for transfer to CPS, and that he wanted the petition to be for his discharge from the MSOP rather than for his transfer to CPS.
169. The MSOP has not filed a petition on behalf of any juvenile-only offender except Terhaar.
170. The MSOP does not have an established process or practice to determine whether to petition on behalf of a committed individual.
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171. The MSOP’s SRB policy states that when a petition for provisional discharge is supported by the treatment team, the MSOP staff are authorized to assist the individual petitioner with a provisional discharge plan.
172. The MSOP only assists committed individuals who are in Phase III of treatment with provisional discharge plans.
173. Although a committed individual must have a fully completed provisional discharge plan to support a provisional discharge petition, the MSOP does not assist committed individuals who are in Phase I or Phase II in creating a provisional discharge plan.
174. The MSOP does not provide legal advice to committed individuals regarding filing a petition.
175. Individuals confined at the MSOP have expressed confusion and uncertainty regarding the petitioning process, and some have been deterred from petitioning due to the daunting petitioning process. For example, Terhaar credibly testified that he has not filed a petition for a reduction in custody because the petitioning process is very long and complicated, and he does not know how to navigate the petitioning process. Foster credibly testified that he did not know about the petitioning form or process until another committed individual explained the form and process to him, after he had been committed for approximately six years.
176. Between January 2010 and June 2014, 441 committed individuals at the MSOP who were potentially eligible for discharge had not filed a petition for a reduction in custody.
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177. The MSOP has never supported a full discharge petition. 178. The MSOP has supported fewer than ten petitions for provisional discharge. 179. The MSOP will only support a petition for a reduction in custody if the petitioning individual fully completes the treatment program. Commissioner Jesson credibly testified that the MSOP will only support individuals for discharge if they had been successful in finishing treatment and defined “successful” to mean “finished.” Johnston credibly testified that the MSOP’s practice is that committed individuals must be in Phase III for the MSOP to support their petition. 180. The MSOP has only supported one petition for transfer to CPS from a committed individual in Phase I. Dr. Fox credibly testified that the MSOP has only supported a petition for transfer to CPS for an individual in Phase I in one case, and that was for Terhaar. Dr. Pascucci credibly testified that she has never recommended that a committed individual in Phase I be transferred to CPS. 181. Within the last year, the MSOP has supported one petition for transfer to CPS from a committed individual in Phase II. Johnston credibly testified that “[i]t wasn’t until more recently in the last year that treatment team support for transfer to CPS while a client is in Phase II has occurred.” 182. Any conclusion of law which may be deemed a finding of fact is incorporated herein as such.
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Based upon the above findings of fact, the Court hereby makes the following:
CONCLUSIONS OF LAW Jurisdiction
1. The Court has subject matter jurisdiction over this case pursuant to
28 U.S.C. § 1331. 2. The United States Supreme Court has held that to have standing to invoke
the federal court’s jurisdiction, a plaintiff must show the following: (1) “injury in fact,” by which we mean an invasion of a legally protected interest that is “(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; . . . (2) a causal relationship between the injury and the challenged conduct, by which we mean the injury “fairly can be traced to the challenged action of the defendant,” and has not resulted “from the independent action of some third party not before the court”; . . . and (3) a likelihood that the injury will be redressed by a favorable decision, by which we mean that the “prospect of obtaining relief from the injury as a result of a favorable ruling” is not “too speculative.”
See Ne. Fla. Chapter of Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 663-64 (1993) (internal citations omitted).
3. Plaintiffs have standing in this case. Contrary to Defendants’ assertion that Plaintiffs allege merely a generalized concern, Plaintiffs have shown that all Class Members have suffered an injury in fact—the loss of liberty in a manner not narrowly tailored to the purpose for commitment. Each Class Member has been harmed by not
knowing whether they continue to meet the criteria for commitment to the MSOP through regular risk assessments. Each Class Member has been harmed by the treatment program’s structural problems, resulting in delays in progression.
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4. Plaintiffs have shown that each Class Member has been harmed and their liberty has been implicated as a result of Defendants’ actions. For example, Defendants created the MSOP’s treatment program structure, developed the phase progression policies, and had the discretion to conduct periodic risk assessments of each Class Member and to petition on behalf of the Class Members, but have chosen not to do so. By failing to provide the necessary process, Defendants have failed to maintain the program in such a way as to ensure that all Class Members are not unconstitutionally deprived of their right to liberty.
5. Plaintiffs have shown that each Class Member’s injury with respect to their liberty interests will likely be redressed by a favorable decision, as is exemplified through the possible remedies proposed below. Plaintiffs’ Facial Challenge
6. A “plaintiff can only succeed in a facial challenge by establishing that no set of circumstances exists under which the Act would be valid, i.e., that the law is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (internal quotation omitted).
7. The Due Process Clause of the Fourteenth Amendment of the United States Constitution 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.
8. “[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 (1990)
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(internal quotation omitted); see also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845 (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).
9. Substantive due process protects individuals against two types of government action: action that “shocks the conscience” or “interferes with rights implicit in the concept of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746 (1987); see also Seegmiller v. LaVerkin City, 528 F.3d 762 (10th Cir. 2008).
10. State and federal caselaw has long recognized that civil confinement is a “massive” curtailment of liberty. Vitek v. Jones, 445 U.S. 480, 491-92 (1980); Addington v. Texas, 441 U.S. 418, 425 (1979) (“[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.”); In re Blodgett, 510 N.W.2d 910, 914 (Minn. 1994) (“To live one’s life free of physical restraint by the state is a fundamental right; curtailment of a person’s liberty is entitled to substantive due process protection.”).
11. Substantive due process requires that civil committees may be confined only if they are both mentally ill and pose a substantial danger to the public as a result of that mental illness. See Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995); see also Foucha v. Louisiana, 504 U.S. 71, 77 (1992) (“Even if the initial commitment was permissible,” a civil commitment may not “constitutionally continue after that basis no longer exist[s].”) (internal citations omitted); see also id. (explaining that a “committed
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acquittee is entitled to release when he has recovered his sanity or is no longer dangerous”).
12. When a fundamental right is involved, courts must subject the law to strict scrutiny, placing the burden on the state to show that the law is narrowly tailored to serve a compelling state interest. See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (“[T]he Fourteenth Amendment forbids the government to infringe . . . fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”) (internal citations and quotations omitted) (emphasis in original); 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’”) (internal citations omitted).
13. The Court concludes that the strict scrutiny standard applies because Plaintiffs’ fundamental right to live free of physical restraint is constrained by the curtailment of their liberty. See, e.g., Foucha, 504 U.S. at 80 (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”) (internal citation omitted); Jones v. United States, 463 U.S. 354, 361 (1983) (“[C]ommitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.”) (internal citation omitted); see also Cooper v. Oklahoma, 517 U.S. 348, 368-69 (1996) (“The requirement that the grounds for civil commitment be shown by clear and convincing evidence protects the individual’s fundamental interest in liberty.”); Reno v. Flores, 507 U.S. 292, 316 (1993)
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(O’Connor, J., concurring) (“The institutionalization of an adult by the government triggers heightened, substantive due process scrutiny.”); Vitek, 445 U.S. at 492 (“The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement.”); Blodgett, 510 N.W.2d at 914 (“The state must show a legitimate and compelling interest to justify any deprivation of a person’s physical freedom.”).
14. This case is distinguishable from other challenges to the involuntary confinement of sex offenders where it was represented to the court that the program’s anticipated duration of completion was a few years or only potentially indefinite; here, not one offender has been released from the MSOP program after over twenty years. See, e.g., Kansas v. Hendricks, 521 U.S. 346, 364 (1997) (stating that “commitment under the Act is only potentially indefinite” because “[t]he maximum amount of time an individual can be incapacitated pursuant to a single judicial proceeding is one year” and “[i]f Kansas seeks to continue the detention beyond that year, a court must once again determine beyond a reasonable doubt that the detainee satisfies the same standards as required for the initial confinement”); In re Linehan, 557 N.W.2d 171, 188 (Minn. 1996) (finding that “model patients” were expected to complete the program in approximately thirty-two months and finding that, in light of this finding, the program was remedial and not punitive in nature); Call, 535 N.W.2d at 318 n.5 (noting the state’s representation that “[a]n average patient is expected to complete the program in a minimum of 24 months”).
In addition, no other case has raised a systemic challenge to section 253D or specifically addressed section 253D’s failure to require regular risk assessments to determine if class members continued to meet the criteria for continued commitment or
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section 253D’s failure to require the MSOP to initiate the petitioning process when it is aware that a committed individual likely meets the statutory discharge criteria.
15. The United States Supreme Court has held that a civil commitment statutory scheme is permitted provided that an individual is not detained past the time they are no longer dangerous or no longer have a mental illness without rendering the statute punitive in purpose or effect as to negate a legitimate nonpunitive civil objective. See Hendricks, 521 U.S. at 361-62. Thus, 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.” Id. at 361. 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.” Id. at 371 (Kennedy, J., concurring).
16. To satisfy the narrowly tailored standard, section 253D must ensure that individuals are committed no longer than necessary to serve the state’s compelling interests.
17. The purpose for which an individual is civilly committed to the MSOP is to provide treatment to and protect the public from individuals who are both mentally ill and pose a substantial danger to the public as a result of that mental illness.
18. The Court concludes that the state has failed to demonstrate that section 253D is narrowly tailored to achieve its compelling interests.
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19. First, section 253D is not narrowly tailored because the statute indisputably fails to require periodic risk assessments. In the absence of such assessments, Defendants cannot know whether any Class Members satisfy the statutory criteria for continued commitment. The MSOP has no periodic risk assessment for individuals the MSOP knows or should know no longer meet the criteria to remain confined or restricted to early phases of the progression program. The statute, on its face, allows the continued civil commitment of sex offenders, even after they no longer meet the statutory criteria for commitment or meet the criteria for discharge or reduction in custody. By not providing for periodic risk assessments, the statute, on its face, authorizes prolonged commitment, even after committed individuals no longer pose a danger to the public and need further inpatient treatment and supervision for a sexual disorder. The statute is therefore not narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment. See Hendricks, 521 U.S. at 361-62.
20. Second, section 253D is not narrowly tailored because it fails to provide a judicial bypass mechanism to the statutory reduction in custody process. Section 253D provides for a single process to obtain transfer, provisional release, or full discharge. As noted above, the SRB and the SCAP process takes too long, is burdened with difficult and cumbersome procedures, and denies committed individuals services necessary to navigate the process. The SRB and the SCAP process, and its corresponding duration and procedures, are insufficient to meet this standard. Neither the habeas process nor a Rule 60 motion provide sufficient bypass because neither provides the right to counsel or the right to medical professional assistance to individuals seeking those alternative
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processes. The failure of the statute to provide for an adequate emergency or alternative mechanism by which someone who satisfies the discharge standard can obtain release from commitment in a reasonable time period demonstrates that the statute on its face is not narrowly tailored. The Court is unpersuaded by Defendants’ argument that federal habeas law already provides a series of procedures allowing federal review of Minnesota’s compliance with federal constitutional standards because the habeas process does not provide the right to counsel or the right to medical professional assistance to committed individuals seeking alternative processes. As written, section 253D contains no judicial bypass mechanism, and, as such, there is no way for Plaintiffs to timely and reasonably access the judicial process outside of the statutory discharge process to challenge their ongoing commitment. Therefore, section 253D is not narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment. See Hendricks, 521 U.S. at 361-62.
21. Third, the Court concludes that section 253D is not narrowly tailored because the statutory discharge criteria is more stringent than the statutory commitment criteria. To be discharged from the MSOP, section 253D requires that a committed individual “no longer be dangerous” as opposed to being “highly likely to reoffend,” which is the initial commitment standard. Although an individual may be initially committed to the MSOP on proof of being “highly likely to engage in harmful sexual conduct” in the future, an individual is prohibited from being discharged unless he demonstrates, among other things, that he is no longer dangerous. Because the statute renders discharge from the MSOP more onerous than admission to it, section 253D is not
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narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment. See Hendricks, 521 U.S. at 361-62.
22. Fourth, the Court concludes that section 253D is not narrowly tailored because the statute impermissibly places the burden on committed individuals to demonstrate that they may be placed in a less restrictive setting upon commitment or by transfer from the MSOP. The Court concludes that the burden of demonstrating the justification for continued confinement by clear and convincing evidence should remain on the state at all times. Because the burden to petition impermissibly shifts from the state to committed individuals, section 253D is not narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment. See Hendricks, 521 U.S. at 361-62.
23. Fifth, the Court concludes that section 253D is not narrowly tailored because although the statutory scheme contemplates that less restrictive alternatives are available, see Minn. Stat. § 253D.07, subd. 3, and requires that committed individuals show by clear and convincing evidence that a less restrictive alternative is appropriate, see id., the evidence demonstrates, and the Court concludes, that there are no less restrictive alternatives available upon commitment. Moreover, committed individuals can never meet the preponderance of the evidence standard to transfer to a “facility that best meets the person’s needs,” see id., when those alternative facilities do not exist. Therefore, the Court concludes that section 253D is not narrowly tailored, and results in a punitive effect and application contrary to the purpose of civil commitment. See Hendricks, 521 U.S. at 361-62.
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24. Finally, the Court concludes that section 253D is not narrowly tailored because the statute does not require the state to take any affirmative action, such as petition for reduction of custody, on behalf of individuals who no longer satisfy the criteria for continued commitment. The statute’s failure to require the state to petition for individuals who no longer pose a danger to the public and no longer need inpatient treatment and supervision for a sexual disorder is a fatal flaw that renders the statute not narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment. See Hendricks, 521 U.S. at 361-62.
25. For the reasons set forth above, section 253D is unconstitutional on its face because no application of the statute provides sufficient constitutional protections to render the statute narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment. See Hendricks, 521 U.S. at 361-62. Plaintiffs’ As-Applied Challenge
26. The Court concludes that the strict scrutiny standard also applies to Plaintiffs’ as-applied challenge because Plaintiffs’ substantive due process claim involves the infringement of a fundamental right.
27. Under the strict scrutiny standard, the burden is on Defendants to demonstrate that the statute, as applied, is narrowly tailored to serve a compelling state interest.
28. Confinement under civil commitment at the MSOP is constitutional only if the state determines and confirms that the basis for commitment still exists or that the statutory reduction in custody criteria is not met. It is constitutionally mandated that only
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individuals who constitute a “real, continuing, and serious danger to society” may continue to be civilly committed to the MSOP. See Hendricks, 521 U.S. at 372 (Kennedy, J., concurring). Individuals who are no longer dangerous cannot constitutionally continue to be confined at the MSOP. See Foucha, 504 U.S. at 77 (holding that a committed individual “may be held as long as he is both mentally ill and dangerous, but no longer”) (quoting Jones, 463 U.S. at 368) (emphasis added). In Call v. Gomez, the Minnesota Supreme Court held that continued confinement of a committed individual is constitutional “for only so long as he or she continues both to need further inpatient treatment and supervision for his sexual disorder and to pose a danger to the public.” Call, 535 N.W.2d at 319 (emphasis added). Consistent with these statutory and constitutional requirements, when the standard for commitment is no longer met or when the standard for discharge is satisfied, the state has no authority to continue detaining the confined individual at the MSOP.
29. The Court concludes that section 253D is unconstitutional as applied because Defendants apply the statute in a manner that results in Plaintiffs being confined to the MSOP beyond such a time as they either meet the statutory reduction in custody criteria or no longer satisfy the constitutional threshold for continued commitment.
30. First, the Court finds that section 253D, as applied, is not narrowly tailored because Defendants do not conduct periodic risk assessments of civilly committed individuals at the MSOP. Defendants admit that they do not know whether many individuals confined at the MSOP meet the commitment or discharge criteria, but they do know that certain individuals could be discharged or transferred to a less restrictive
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facility. Although Defendants claim that the MSOP provides a risk assessment to the SRB upon the filing of a petition, Defendants do not purport to procure periodic, independent assessments or otherwise evaluate whether an individual continues to meet the initial commitment criteria or the discharge criteria if an individual does not file a petition. This is true even after decades of confinement in the program. In addition, although the statute currently does not require risk assessments, nothing in the statute prohibits the MSOP from conducting periodic risk assessments. The MSOP has yet to fix the periodic risk assessment problem even though Defendants concede they could add periodic risk assessments at their discretion.
Despite Defendants’ assertions that they have started to conduct “rolling risk assessments,” this plan is insufficient to pass constitutional muster. Defendants have not hired any additional risk assessors beyond the existing department vacancies to implement this plan, and many employees of the MSOP had never heard of this plan. In addition, even if Defendants were in fact implementing such a plan, the planned one or two risk assessments per month outside of the petitioning process would take 30 to 60 years in order to assess all currently committed Class Members at the MSOP, and yet risk assessments are only valid for one year. Therefore, section 253D, as applied, is not narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment. See Hendricks, 521 U.S. at 361-62.
31. Second, section 253D, as applied, is not narrowly tailored because those risk assessments that have been performed have not all been performed in a constitutional manner. The testimony of several risk assessors at the MSOP support a conclusion that
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the risk assessors have not been applying the correct legal standard when evaluating whether an individual meets the criteria for transfer, provisional discharge, or discharge. For example, Dr. Pascucci’s testimony indicated that she did not use the correct standard for discharge under Call, which requires that a person be “confined for only so long as he or she continues both to need further inpatient treatment and supervision for his sexual disorder and to pose a danger to the public.” Call, 535 N.W.2d at 319 (emphasis added). In other words, the Minnesota Supreme Court has indicated that discharge must be granted if the individual is either no longer dangerous to the public or no longer suffers from a mental condition requiring treatment. (See id.) Moreover, the MSOP did not use the correct legal standard until after these proceedings commenced in 2011, despite the fact that the Minnesota Supreme Court decided the Call case in 1995. Therefore, section 253D, as applied, is not narrowly tailored in that there is no requirement to apply the correct legal standard in risk assessments and it results in a punitive effect and application contrary to the purpose of civil commitment. See Hendricks, 521 U.S. at 361-62.
32. Third, section 253D, as applied, is not narrowly tailored because individuals have remained confined at the MSOP even though they have completed treatment, can no longer benefit from treatment, or have reduced their risk below either the “highly likely to reoffend” standard or below a “dangerous” standard. The fact that no one has been fully discharged from the MSOP since the program was created and that only three individuals have been provisionally discharged, one of whom was subsequently returned to civil confinement and who passed away at the MSOP,
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underscores the failure of section 253D, as applied, to be narrowly tailored to confine only those individuals who should remain civilly committed at the MSOP. Therefore, section 253D, as applied, is not narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment. See Hendricks, 521 U.S. at 361-62.
33. Fourth, section 253D, as applied, is not narrowly tailored because the discharge procedures are not working as they should at the MSOP. The Court finds that this is the result of the MSOP refusing to petition on behalf of committed individuals, the MSOP failing to provide discharge planning to committed individuals until they are in Phase III, and Defendants’ failure to address impediments and delays in the reduction in custody process. These failures further delay Plaintiffs’ ultimate discharge from the MSOP. As a result, section 253D, as applied, is not narrowly tailored, and results in a punitive effect and application contrary to the purpose of civil commitment. See Hendricks, 521 U.S. at 361-62.
34. Fifth, section 253D, as applied, is not narrowly tailored because there are no less restrictive alternatives. Although section 253D expressly allows for the referral of committed individuals to less restrictive alternatives, this is not occurring in practice. It is undisputed that there are individuals confined at the Moose Lake and St. Peter secure facilities who could be served in less restrictive alternatives. However, until recently, there were no less restrictive alternatives, aside from CPS, in which to place individuals. Even now, there are simply not enough less restrictive alternatives available for committed individuals seeking transfer to less restrictive alternatives. In addition,
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committed individuals cannot be placed at CPS or other less restrictive alternatives upon initial commitment. Insisting on confinement at the secure facilities impinges on the individual’s liberty interest, particularly given the statutorily proscribed less restrictive options, and thus the statute is not narrowly tailored, resulting in a punitive effect and application contrary to the purpose of civil commitment. See Hendricks, 521 U.S. at 361-62.
35. Finally, section 253D, as applied, is not narrowly tailored because, although treatment is made available, there is no meaningful relationship between the treatment program at the MSOP and discharge from custody. Progression through the phases of treatment at the MSOP has been so slow, for so many years, that treatment has never been a way out of confinement for committed individuals, especially in light of the fact that no periodic risk assessments are conducted. Most of the committed individuals get stuck in Phase I of the program, a part of the program where no specific offender-related therapy is provided, only institutional rule compliance training and preparation for therapy. The treatment program has been plagued by a lack of funding, staff shortages, and periodic alterations in the treatment program, resulting in committed individuals having to go through stoppages and starting over again. Even if the treatment that is provided has led to a reduction in risk of reoffending of some committed individuals, the previously identified risk assessment problems have nullified any such positive effect. The lack of a meaningful relationship between the treatment program and discharge is borne out by the fact that over the past twenty-one years, very few have been progressed to Phase III, no one has been fully discharged, and only three persons have been
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provisionally discharged. The overall failure of the treatment program over so many years is evidence of the punitive effect and application of section 253D. See Hendricks, 521 U.S. at 361-62.
36. Each of the reasons set forth above are an independent reason for the Court to conclude that section 253D is unconstitutional as applied. Together, these reasons support the Court’s conclusion that the statute, as applied, is not narrowly tailored to protect against individuals being confined to the MSOP beyond such time as they either satisfy the statutory reduction in custody criteria or no longer satisfy the constitutional standards for continued commitment. Instead, the statute, as applied, is a three-phased treatment system with “chutes-and-ladders”-type mechanisms for impeding progression, without periodic review of progress, which has the effect of confinement to the MSOP facilities for life. As a result, section 253D, on its face and as applied, is not narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment. See Hendricks, 521 U.S. at 361-62.
37. Any finding of fact which may be deemed a conclusion of law is incorporated herein as such.
38. Because the Court finds the program is unconstitutional on its face and as applied (Counts I and II), and because any remedy fashioned will address the issues raised in the remaining Phase One Counts, the Court need not address Counts III, V, VI, and VII. Counts IV and XI will be addressed under separate Order.
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CONCLUSION The Court concludes that the evidence presented over the course of the six-week trial in this case demonstrates that Minnesota’s civil commitment statutory scheme is unconstitutional both on its face and as applied. Contrary to Defendants’ assertions, the Court concludes that the “shocks the conscience” standard does not apply to Plaintiffs’ facial and as-applied challenges because Plaintiffs’ substantive due process claims involve the infringement of a fundamental right. See Cooper, 517 U.S. at 368-69; Flores, 507 U.S. at 316 (O’Connor, J., concurring); Foucha, 504 U.S. at 80; Jones, 463 U.S. at 361; Vitek, 445 U.S. at 492; Blodgett, 510 N.W.2d at 914. After applying the strict scrutiny standard, the Court concludes that Minnesota’s civil commitment statutory scheme is not narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment and that the MSOP, in implementing the statute, systematically continues to confine individuals in violation of constitutional principles. Specifically, the Court concludes that section 253D is facially unconstitutional for the following six reasons: (1) section 253D indisputably fails to require periodic risk assessments and, as a result, authorizes prolonged commitment even after committed individuals no longer pose a danger to the public and need further inpatient treatment and supervision for a sexual disorder; (2) section 253D contains no judicial bypass mechanism and, as such, there is no way for Plaintiffs to timely and reasonably access the judicial process outside of the statutory discharge process to challenge their ongoing commitment; (3) section 253D renders discharge from the MSOP more onerous than admission to it because the statutory discharge criteria is more stringent than the statutory
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commitment criteria; (4) section 253D authorizes the burden to petition for a reduction in custody to impermissibly shift from the state to committed individuals; (5) section 253D contemplates that less restrictive alternatives are available and requires that committed individuals show by clear and convincing evidence that a less restrictive alternative is appropriate, when there are no less restrictive alternatives available; and (6) section 253D does not require the state to take any affirmative action, such as petition for a reduction in custody, on behalf of individuals who no longer satisfy the criteria for continued commitment.
In addition, the Court further concludes that section 253D is unconstitutional as applied for the following six reasons: (1) Defendants do not conduct periodic, independent risk assessments or otherwise evaluate whether an individual continues to meet the initial commitment criteria or the discharge criteria if an individual does not file a petition; (2) those risk assessments that have been performed have not all been performed in a constitutional manner; (3) individuals have remained confined at the MSOP even though they have completed treatment or sufficiently reduced their risk; (4) discharge procedures are not working properly at the MSOP; (5) although section 253D expressly allows the referral of committed individuals to less restrictive alternatives, this is not occurring in practice because there are insufficient less restrictive alternatives available for transfer and no less restrictive alternatives available for initial commitment; and (6) although treatment has been made available, the treatment program’s structure has been an institutional failure and there is no meaningful relationship between the treatment program and an end to indefinite detention.
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The Fourteenth Amendment does not allow the state, DHS, or the MSOP to impose a life sentence, or confinement of indefinite duration, on individuals who have committed sexual offenses once they no longer pose a danger to society. The Court must emphasize that politics or political pressures7 cannot trump the fundamental rights of Class Members who, pursuant to state law, have been civilly committed to receive treatment. The Constitution protects individual rights even when they are unpopular. As Justice Sandra Day O’Connor sagely observed, “[a] nation’s success or failure in achieving democracy is judged in part by how well it responds to those at the bottom and the margins of the social order.” Third Annual William French Memorial Lecture: A Conversation with Retired Justice Sandra Day O’Connor, 37 Pepp. L. Rev. 63, 65 (2009).
As a former Assistant County Attorney, the undersigned prosecuted sexual assault and child sexual abuse cases and, as a former Minnesota District Judge who handled many such cases, the undersigned then and now is sensitive to the interests of all individuals affected by this matter, as well as the fears and concerns of the public at large,
7 Benson credibly testified that “the politics around the program are really thick” and that “politics guide the thinking of those involved in the [release] process,” which Benson described as a “political crapshoot.” Benson further credibly testified that “I think this is an area where people have got to rise above the politics and do the right thing or . . . this program is going to, I think, eventually be deemed unconstitutional, and in its current form probably should be.” The Task Force Report corroborated these observations, stating that “the Task Force is deeply concerned about the influence of public opinion and political pressure on all levels of the commitment process.”
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including, of course, victims of these heinous and tragic crimes.8 The undersigned accepts and acknowledges that it has an obligation to all citizens to not only honor their constitutional rights, but to do so without compromising public safety and the interests of justice. The balance is a delicate and important one, but it can and will be done. The Court observes that the parties and this Court are in the same position now as when this lawsuit was filed in 2011 in at least two ways. First, there are some individuals who indisputably should be discharged from the MSOP and who are being confined unconstitutionally at the MSOP. As stated by Grant Duwe, Director of Research at the DOC: “[M]any high-risk sex offenders can be managed successfully in the community. The cost of civil commitment in a high-security facility also implies that this type of commitment should be reserved only for those offenders who have an inordinately high risk to sexually reoffend.” (Doc. No. 427 (February 20, 2014 Order”) at 67 n.48 (citing Doc. No. 410 (“Nelson Decl.”) ¶ 2, Ex. 1, at 9).) The confinement of the elderly, individuals with substantive physical or intellectual disabilities, and juveniles, who might never succeed in the MSOP’s treatment program or who are otherwise unlikely to reoffend, is of serious concern for the Court and should be for the parties as well. Importantly, provisional discharge or discharge from the MSOP does not mean discharge or release without a meaningful support network, including a transition or release plan into the community with intensive supervised release conditions. Virtually all of these 8 The Court has received numerous letters from not only victims and family members of victims of committed individuals, but also from family members of committed individuals at the MSOP as well as individuals who claim to have experienced the MSOP firsthand.
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offenders have been institutionalized, as the reintegration component of Phase III of this
program acknowledges. Second, there are others who are truly dangerous and should
remain confined at the MSOP, but for whom constitutional procedures must be followed
because “[s]ubstantive due process forecloses the substitution of preventative detention
schemes for the criminal justice system, and the judiciary has a constitutional duty to
intervene before civil commitment becomes the norm and criminal prosecution the
exception.” In re Linehan, 557 N.W.2d at 181.
Further, the Court must emphasize how truly systemic the state’s problem has
become. The record before this Court shows that a number of Class Members were
allowed to plead to a lesser criminal sexual conduct charge and often received concurrent sentences even though there were multiple victims involved,9 and, as defendants, were
never advised of the “collateral consequence” of what being committed to the MSOP
means.10 In some cases, defendants were allowed to enter a guilty plea, even though they
9 For example, Steiner was convicted of several counts of criminal sexual conduct of varying degrees involving a number of victims, sentenced to the custody of the DOC Commissioner with his sentence stayed, and then stipulated to his civil commitment to the MSOP.
There are a number of cases where the plea agreement called for either a plea to a lesser charge or dismissal of other charges involving multiple victims. For two other such examples where a sex offender was allowed to plead to a lesser criminal sexual conduct charge or other counts of criminal sexual conduct were dismissed, see Call v. Gomez, 535 N.W.2d 312 (Minn. 1995) and In re Ince, 847 N.W.2d 13 (Minn. 2014).
10 Terhaar, Bolte, and Steiner, among others, were never advised of what the MSOP entailed. At the time of his commitment to the MSOP, Steiner was told that he would be committed for three to four years, consistent with the representations made by the state to the Minnesota Supreme Court in In re Linehan, 557 N.W.2d 171, 188 (Minn. 1996). Steiner has been committed to the MSOP for twenty-three years.
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proclaimed their innocence, by accepting the benefits of the plea bargain, more commonly known as an Alford plea.11 It is difficult for this Court to understand why the
criminal justice system so heavily relies on plea agreements in criminal sexual conduct
cases. It appears to this Court that the civil commitment process—with lower burdens of
proof—is being utilized instead. This reliance on the civil commitment process is
especially troubling given the provisions of Minn. Stat. § 609, specifically Minn. Stat.
§ 609.3455, which authorizes a mandatory ten-year period of conditional release for a
first-time offender and placing an offender with prior sex offense convictions on
conditional release for the remainder of the offender’s life. See Minn. Stat. § 609.3455,
subds. 6, 7. In addition, Minn. Stat. § 609 authorizes mandatory life prison sentences for
“egregious first-time offenders” and repeat offenders, as well as significant increases in
the presumptive sentence under certain circumstances. See Minn. Stat. § 609.3455. Such
plea negotiations, with few exceptions, have only proved to be a disservice to the entire
system and have rarely served the interests of justice.
11 An Alford plea is “[a] guilty plea that a defendant enters as part of a plea bargain without admitting guilt.” Black’s Law Dictionary 71 (7th ed. 1999). The term “Alford plea” is named after the United States Supreme Court case of North Carolina v. Alford, 400 U.S. 25 (1970).
A number of committed individuals at the MSOP, including Karsjens, denied their guilt and entered an Alford plea, but are now having difficulty advancing past Phase I of the treatment program because they still proclaim their innocence and deny any wrongdoing.
There are circumstances under which an Alford plea may serve the interests of justice. However, as a former prosecutor and as a state and federal judge, the undersigned has never allowed or accepted an Alford plea.
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Further, in a number of the civil commitment cases, the DOC referred the offender to the county attorney for commitment, even though the sentencing judge had imposed the mandatory ten-year conditional release to follow the prison sentence, which can be intensive supervised release and can include GPS monitoring, daily curfews, alcohol and drug testing, and other conditions of release while on supervision. See, e.g., In re Ince, 847 N.W.2d 13 (Minn. 2014). Deferring to the mandatory conditional release imposed by the sentencing judge, especially for those individuals convicted of sex crimes who are not evaluated to be “the worst of the worst” (i.e., the most dangerous of sexual offenders), not only addresses public safety, but also considers the constitutionally-protected liberty interests of individuals with convictions. In the words of Justice John E. Simonett:
At issue is not only the safety of the public on the one hand and, on the other, the liberty interests of the individual who acts destructively for reasons not fully understood by our medical, biological and social sciences. In the final analysis, it is the moral credibility of the criminal justice system that is at stake. Blodgett, 510 N.W.2d at 918. Consequently, the Court observes that, in light of the current state of Minnesota’s sex offender civil commitment scheme, it is not only the “moral credibility of the criminal justice system” that is at stake today, but the credibility of the entire system, including all stakeholders that work within the system, and those affected by the system, not forgetting those who have been convicted of sex crimes, their victims, and the families of both. The Court concludes that the Constitution requires that substantial changes be made to Minnesota’s sex offender civil commitment scheme. Accordingly, the Court will
72

hold a Remedies Phase pre-hearing conference where it will consider all remedies
proposals, which could include, but would not be limited to the following:
• Requiring risk and phase placement reevaluation, with all deliberate speed, of all current patients, starting with the elderly, individuals with substantive physical or intellectual disabilities, and juveniles;
• Requiring periodic, independent risk assessments to determine whether the clients still satisfy the civil commitment requirements and whether the treatment phase placement is proper;
• Requiring and creating a variety of alternate less restrictive facilities;
• Revising the discharge process, including the possibility of using a specialized sex offender court with authority to request information, order transfer, provisional discharge, or discharge, and order appropriate conditions and supports for individuals transitioning to the community;
• Requiring the MSOP to promptly file petitions for any person the MSOP believes does not meet the criteria for civil commitment upon arrival, may no longer meet the criteria for civil commitment, or should be transferred to an alternative facility, including for individuals that cannot be well served at the MSOP (for example, due to an individual’s physical or intellectual disability);
• Requiring the MSOP to proactively and continuously develop and adjust specific treatment and discharge plans, no matter which phase a person is in;
• Requiring the MSOP to provide annual notice to all clients of the right to petition and provide assistance with the petitioning process dependent upon the client’s needs;
• Requiring the state to have the burden to prove that the committed individuals meet statutory and constitutional standards for continued commitment and placement;
• Requiring the statutory standards for discharge and commitment be the same;
• Requiring a judicial bypass mechanism;
• Requiring changes to the civil commitment process to correct systemic problems and to ensure that only those who need further inpatient treatment and supervision
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for a sexual disorder and pose a danger to the public are civilly committed, taking into account an individual’s age, adult convictions, severity of adult convictions, and physical or intellectual disability;
• Requiring the provision of qualified defense counsel and professional experts to all petitioners;
• Requiring ongoing external review and evaluation by experts to recommend changes to the MSOP treatment program processes, including an overview of the structure of the treatment program and phase progression processes;
• Requiring continued and specific training for all employees of the MSOP and for those people involved with the petitioning, commitment, or discharge process;
• Requiring a plan for educating the public on civil commitment, civil commitment alternative facilities, provisional discharge conditions, and risk of re-offense data, among other things, and requiring funding for such education; and
• Appointing a Special Master to monitor compliance with all of the remedies.12
The Court is hopeful that the stakeholders will fashion suitable remedies so that
the Court need not consider closing the MSOP facilities or releasing a number of
individuals from the MSOP with or without conditions. As the Court has stated in a number of previous orders13 and will now say one last time, the time is now for all of the
stakeholders in the criminal justice system and civil commitment system to come together
and develop policies and pass laws that will not only protect the public safety and address
12 As the Court noted in its February 20, 2014 Order, at least one court has taken strong remedial action against a state’s sex offender program and has required court monitoring over a thirteen-year time period. (See Doc. No. 427 (citing Turay v. Richards, No. C91-0664RSM, 2007 WL 983132, at *5 (W.D. Wa. Mar. 23, 2007)).) 13 (See, e.g., Doc. No. 427 (“February 20, 2014 Order”) at 68; Doc. No. 828 (“February 2, 2015 Order”) at 42.)
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the fears and concerns of all citizens, but will preserve the constitutional rights of the Class Members.
ORDER Based upon not only the findings and conclusions of this Court, but also the entire record of this case, the Court hereby enters the following: 1. Plaintiffs’ request for declaratory relief with respect to Counts I and II of their Third Amended Complaint (Doc. No. [635]) is GRANTED. 2. The parties shall participate in a Remedies Phase pre-hearing conference on August 10, 2015, at 9:00 a.m., to discuss the relief that they find appropriate with respect to both Counts I and II, in light of the above requirements and recommendations. In addition to counsel for the parties, the Court urges the following individuals to be present and participate in the pre-hearing conference: Governor Mark B. Dayton; Representative Kurt L. Daudt (Speaker of the House); Senator Thomas M. Bakk (Majority Leader of the Senate); Attorney General Lori Swanson; Commissioner Lucinda E. Jesson; Deputy Commissioner Anne M. Barry; Robin Vue Benson (DHS attorney); Jannine Hébert; Nancy Johnston; former Chief Justice Eric J. Magnuson (Chair of the Task Force); former Chief Judge James M. Rosenbaum (Vice Chair of the Task Force); the Honorable Joanne M. Smith (Task Force Member); Minnesota Commissioner of Corrections Tom Roy (Task Force Member); Eric S. Janus (Dean of William Mitchell College of Law and Task Force Member); Kelly Lyn Mitchell (Executive Director of the Sentencing Guidelines Commission and Task Force Member); Mark A. Ostrem (Olmstead County Attorney and Task Force Member); Ryan B. Magnus (defense attorney
75

and Task Force Member); John Kirwin (Assistant Hennepin County Attorney); and Donna Dunn (Executive Director of the Minnesota Coalition Against Sexual Assault and Task Force Member).14 The conference will be presided over by the undersigned, along with United States Magistrate Judge Jeffrey J. Keyes. The conference will take place in the 7th Floor Conference Room, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota.
3. Counts VIII, IX, and X, will be tried in the second phase of trial (“Phase Two”). Phase Two will be addressed at the Remedies Phase pre-hearing conference on August 10, 2015.
4. Counts IV, XI, XII, and XIII will be addressed under separate Order.

Dated: June 15, 2015

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

14 Although the Court acknowledges that it cannot compel non-parties to attend the conference, the Court invites select non-parties to the conference to fashion suitable remedies to be presented to the Court.
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 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, Kevin Moser, Peter Puffer, Nancy Johnston, Jannine Hébert, and Ann Zimmerman, in their official capacities,
Defendants.

Civil No. 11-3659 (DWF/JJK)
FIRST INTERIM RELIEF ORDER

Daniel E. Gustafson, Esq., Karla M. Gluek, Esq., David A. Goodwin, Esq., Raina Borrelli, Esq., Lucia G. Massopust, Esq., and Eric S. Taubel, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.
Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Adam H. Welle, and Aaron Winter, 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.
Michael O. Freeman, Hennepin County Attorney, John L. Kirwin, and Theresa Couri, Assistant Hennepin County Attorneys, Hennepin County Attorney’s Office, counsel for Amicus Curiae.

INTRODUCTION On June 17, 2015, this Court concluded the liability phase of this class action litigation with respect to Counts I and II of Plaintiffs’ Third Amended Complaint. (See Doc. No. 966.) In its Findings of Fact, Conclusions of Law, and Order, the Court found that the Minnesota Civil Commitment and Treatment Act (“MCTA”), Minn. Stat. § 253D, is unconstitutional on its face and as applied. (See id. at 66.) This case is now before the Court in its post-trial Remedies Phase. After consideration of all submissions and argument, and for the reasons discussed below, the Court enters its First Interim Relief Order, enjoining Defendants as described below.1
BACKGROUND I. Procedural History
In its June 17, 2015 Findings of Fact, Conclusions of Law, and Order, the Court concluded that “Minnesota’s civil commitment statutory scheme is not narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment and that [the Minnesota Sex Offender Program (“MSOP”)], in implementing the statute, systematically continues to confine individuals in violation of constitutional principles.” (Id.) The Court’s Order included detailed findings that
1 The Court’s Order enjoining Defendants begins on page 39.
2

demonstrate the basis for the Court’s conclusion that Minnesota’s statutory scheme for
committing sex offenders and Defendants’ operation of the MSOP are unconstitutional.2
In particular, the Court found that the problems that have plagued the MSOP for
decades are deeply systemic. The Court suggested “there is something very wrong with
this state’s method of dealing with sex offenders in a program that has never fully
discharged anyone committed to its detention facilities in Moose Lake and St. Peter since
its inception in 1994,” (id. at 4), despite Defendants’ knowledge that there are
individuals at the MSOP who could be safely treated in a less secure environment, (id. at
21), or no longer meet the criteria for continued commitment, (id. at 47). The MCTA
establishes a complex system in which actors at multiple levels of state government play
a role.3 At multiple stages in this system, Defendants’ actions and inactions have led to
the continued operation of an unconstitutional scheme that unjustifiably detains hundreds
2 The Court encourages readers to review its seventy-six page Findings of Fact, Conclusions of Law, and Order (Doc. No. 966) in conjunction with this First Interim Relief Order. The Court’s detailed findings summarize the systemic nature of the constitutional violations surrounding the MSOP’s operation and give important context for the remedies ordered herein.
3 Although this case only involves specific named Defendants in their official capacities as senior managers of the MSOP, the Court necessarily analyzes Minnesota’s civil commitment scheme in full awareness of the many state actors who play a role in the system’s continued operation. See id. at 9 (statutory enactment by the Minnesota Legislature); id. at 10 (civil commitment proceedings initiated by state county attorneys); id. (initial commitment findings determined by a state court); id. at 11 (supervision, care, and treatment under the authority of the Commissioner of the Department of Human Services); id. at 22 (power to halt efforts of administrative officials exercisable by the Governor); id. at 41 (sole authority to grant reductions in custody in the Supreme Court Appeal Panel); id. at 42 (authority to review Supreme Court Appeal Panel Decisions vested in the Minnesota Court of Appeals).
3

of committed individuals in this state. At the initial commitment stage, Defendants have failed to establish less restrictive alternatives to commitment at the secure facilities at Moose Lake and St. Peter. (See id. at 20-21.) Thus, committing courts have no options to authorize an individual to be committed to a less restrictive facility even though the MCTA contemplates this possibility. (See id. at 21.) During an individual’s commitment, Defendants do not periodically assess committed individuals to ensure they continue to meet statutory standards for commitment. (Id. at 36-37.) Defendants also fail to proactively petition for discharge on behalf of individuals who are found to no longer meet statutory criteria for commitment. (See id. at 47.) The MSOP has only filed seven petitions for a reduction in custody on behalf of committed individuals since the inception of the program, and these seven petitions were only filed after this litigation commenced. (Id.) Prior to 2013, the MSOP had never filed a petition for a reduction in custody on behalf of a committed individual. (Id.) For those committed individuals who seek to petition on their own behalf, the process is daunting and Defendants do not provide legal advice to committed individuals seeking to file a petition. (See id. at 48.) Also, the Court found there to be a significant backlog in petitions pending decision before the Special Review Board (“SRB”) and the Supreme Court Appeal Panel (“SCAP”). (See id. at 44-45.) Specifically, the Court indicated “[t]he SRB and the SCAP petitioning process . . . can take years.” (Id. at 44.) Defendants are ultimately responsible for scheduling SRB hearings, (id.), and have the authority to appoint SRB members. (Id. at 46.) Also, Defendants’ recommendations to the SRB carry significant weight in whether an individual is ultimately recommended for provisional discharge or
4

discharge. (Id. at 44.) And at the time of trial, “[s]ince January 1, 2010, the SRB has
recommended granting . . . no petitions for discharge.” (Id.)
Since the MCTA was enacted, the population of committed sex offenders in
Minnesota has increased dramatically. (See id. at 12.) The Court found that Minnesota
has both the lowest rate of release from commitment and the highest per-capita
population of civilly committed sex offenders in the nation. (Id.) By 2022, the state
projects that 1,215 individuals will be civilly committed for sex offenses. (Id.) The
cumulative effect of Defendants’ actions and inactions throughout the state’s entire civil
commitment system led the Court to conclude that “the MSOP has developed into
indefinite and lifetime detention” for the hundreds of individuals under Defendants’ control.4 (Id. at 11.)
In addition, the Court found that Defendants have been on notice of these systemic
problems for several years. Plaintiffs initiated this litigation in December 2011. (Id. at 8;
4 Notably, the state originally disclaimed the notion that confinement under Minnesota’s sex offender civil commitment scheme would constitute indefinite detention. See In re Linehan, 557 N.W.2d 171, 188 (Minn. 1996) (finding that “model patients” were expected to complete the program in approximately thirty-two months and finding that, in light of this finding, the program was remedial and not punitive in nature). As of October 2012, the MSOP’s own phase progression design time line indicated that a “model client” could progress through treatment in six to nine years, yet that has not been the reality. (See Doc. No. 966 at 31.) At trial, committed individuals explained that they never contemplated a program of indefinite duration at the time they were committed. (See id. at 70 n.10 (“Steiner was told that he would be committed for three to four years, consistent with the representations made by the state to the Minnesota Supreme Court in In re Linehan, 557 N.W.2d 171, 188 (Minn. 1996). Steiner has been committed to the MSOP for twenty-three years.”).)
5

see also Doc. No. 1.) Both prior to and during this case, the MSOP has been the subject of critical scrutiny by various evaluators recommending changes to improve the program. (See Doc. No. 966 at 15-16 (describing evaluations and recommendations by the Governor’s Commission on Sex Offender Policy in January 2005, the MSOP Site Visit Auditors every year since 2006, the Office of the Legislative Auditor for the State of Minnesota in March 2011, the Sex Offender Civil Commitment Advisory Task Force in August 2012, the MSOP Program Evaluation Team in November 2012, and the Rule 706 Experts in December 2013).) And in recent legislative sessions, Minnesota legislators have introduced bills to implement several changes to the MSOP and Minnesota’s civil commitment scheme, putting Defendants on further notice of the need to implement substantial reforms.5 (Id. at 16-17.)
Defendants’ own actions also demonstrate that they have been on notice of the problems at the MSOP and have considered implementing changes similar to the remedies the Court imposes today. For example, in 2013 Defendants purportedly started a process to implement rolling risk assessments outside of the normal petitioning process.6 (Id. at 37-38.) The same year, Minnesota Department of Human Services (“DHS”) Commissioner Lucinda Jesson (“Commissioner Jesson”) set a goal of speeding
5 These bills did not pass in the Minnesota legislature. (Id. at 17.) 6 The Court notes that several individuals from the MSOP credibly testified that they had never heard about this rolling risk assessment process, purportedly established by Commissioner Jesson in 2013. (Id. at 37-38.)
6

up the hearing process for petitions supported by the MSOP. (Id. at 45.) Commissioner
Jesson also testified that since this lawsuit began DHS entered into third-party contracts,
albeit limited, to establish less restrictive alternatives to the Moose Lake and St. Peter
facilities. (Id. at 22-23.) The Court’s findings clearly illustrate that Defendants were on
notice of the systemic problems resulting from their own deliberate actions and inactions
in operating the MSOP.
In light of these findings and the many, many more found in the Court’s June 17,
2015 Order, the Court concluded that Minnesota’s civil commitment scheme, Minn. Stat.
§ 253D, is unconstitutional on its face and as applied under the Due Process Clause of the
Fourteenth Amendment. (See id. at 66.) In particular, the Court concluded that
section 253D is facially unconstitutional for six reasons:
(1) section 253D indisputably fails to require periodic risk assessments and, as a result, authorizes prolonged commitment even after committed individuals no longer pose a danger to the public and need further inpatient treatment and supervision for a sexual disorder; (2) section 253D contains no judicial bypass mechanism and, as such, there is no way for Plaintiffs to timely and reasonably access the judicial process outside of the statutory discharge process to challenge their ongoing commitment; (3) section 253D renders discharge from the MSOP more onerous than admission to it because the statutory discharge criteria is more stringent than the statutory commitment criteria; (4) section 253D authorizes the burden to petition for a reduction in custody to impermissibly shift from the state to committed individuals; (5) section 253D contemplates that less restrictive alternatives are available and requires that committed individuals show by clear and convincing evidence that a less restrictive alternative is appropriate, when there are no less restrictive alternatives available; and (6) section 253D does not require the state to take any affirmative action, such as petition for a reduction in custody, on behalf of individuals who no longer satisfy the criteria for continued commitment.
7

(Id. at 66-67.) The Court concluded that section 253D is unconstitutional as applied for
six reasons:
(1) Defendants do not conduct periodic, independent risk assessments or otherwise evaluate whether an individual continues to meet the initial commitment criteria or the discharge criteria if an individual does not file a petition; (2) those risk assessments that have been performed have not all been performed in a constitutional manner; (3) individuals have remained confined at the MSOP even though they have completed treatment or sufficiently reduced their risk; (4) discharge procedures are not working properly at the MSOP; (5) although section 253D expressly allows the referral of committed individuals to less restrictive alternatives, this is not occurring in practice because there are insufficient less restrictive alternatives available for transfer and no less restrictive alternatives available for initial commitment; and (6) although treatment has been made available, the treatment program’s structure has been an institutional failure and there is no meaningful relationship between the treatment program and an end to indefinite detention.
(Id. at 67.) The Court concluded that substantial changes needed to be made to
Minnesota’s sex-offender civil commitment scheme to remedy the ongoing affront to
constitutional principles embedded in the MSOP’s continued operation. The Court
granted Plaintiffs’ request for declaratory relief with respect to Counts I and II and
ordered the parties to participate in a Remedies Phase pre-hearing conference “to discuss
the relief that they find appropriate with respect to both Counts I and II.” (Id. at 75.)
On August 10, 2015, the parties participated in the Remedies Phase pre-hearing
conference to discuss possible relief. (Doc. No. 1003.) The pre-hearing conference was
presided over by the undersigned, along with United States Magistrate Judge Jeffrey J.
Keyes and Special Master former Minnesota Supreme Court Chief Justice Eric J.
Magnuson. Attorneys for Plaintiffs and Defendants were in attendance, along with
Governor Mark B. Dayton, Representative Kurt L. Daudt (Speaker of the House), Senator
8

Thomas M. Bakk (Majority Leader of the Senate), Attorney General Lori Swanson, and other interested stakeholders invited by the Court. (See id.; Doc. No. 966 at 75 (listing individuals whom the Court urged to attend and participate in the pre-hearing conference).) The Court was hopeful that the parties would use this conference to productively address the issues identified in the Court’s Findings of Fact, Conclusions of Law, and Order. Unfortunately, this did not occur. II. Remedies Proposals
On August 12, 2015, the Court issued a Scheduling Order requiring the parties to submit remedy proposals and supporting briefs and setting a hearing for September 30, 2015, to receive any argument regarding remedies. (See Doc. No. 1006.)
On August 14, 2015, Defendants submitted a letter to the Court indicating that they “[would] not be asking the Court to order particular remedies against them in this case” based on their position that “the sex offender civil commitment statute and Defendants’ administration of the Minnesota Sex Offender Program are constitutional.” (Doc. No. 1007.) They also indicated that they planned to respond to Plaintiffs’ proposed remedies. (Id.)
On August 19, 2015, Plaintiffs submitted a Remedies Proposal and Brief in Support of the Remedies Proposal. (Doc. No. 1009.) Plaintiffs argue that the scope of the Court’s remedial authority is broad and assert that any remedies that may require additional state funding are properly within the Court’s discretion. (See id. at 10.) Plaintiffs propose numerous specific remedies that the Court should impose on Defendants, including risk assessments of committed individuals at the MSOP, creation
9

of less restrictive alternative facilities, improvements to the MSOP’s treatment program and discharge process, comprehensive training for MSOP employees, and a statewide public education campaign about sex offenders and civil commitment. (Id. at 20-30.) Unless certain changes are made, Plaintiffs argue, the Court must eliminate the entire MCTA. (Id. at 19.)
On September 4 and 8, 2015, respectively, the Hennepin County Attorney (“HCA”) and the American Civil Liberties Union of Minnesota (“ACLU-MN”) and Professor Eric S. Janus (“Professor Janus”) filed motions for leave to file Amicus briefs concerning remedies. After the Court granted these motions, (Doc. Nos. 1019, 1020), on September 14, 2015, the Amici Curiae filed their submissions with the Court. (Doc. Nos. 1021-1023.) On September 21, 2015, the HCA also filed a letter submission indicating that the county attorneys from six other Minnesota counties wished to join in the HCA’s Amicus Memorandum.7 (Doc. No. 1025.)
The HCA supports some of Plaintiffs’ proposed remedies, including the creation of less restrictive alternatives and requiring periodic risks assessments. (See Doc. No. 1023 at 6-8.) The HCA also advocates expediting SRB hearings to improve the reduction-in-custody process for committed individuals. (See id. at 8-9.) However, the HCA argues that several remedies are beyond the Court’s authority such as modifying the
7 The county attorneys joining the HCA’s Amicus Memorandum included the county attorneys from Anoka, Dakota, McLeod, Ramsey, Washington, and Wright counties.
10

commitment or discharge standard, changing the burden of proof for reduction in custody, and supplanting the three-judge appeal panel process. (See id. at 9-19.)
The ACLU and Professor Janus highlight the long history of the state’s flawed civil commitment system and point out the “legislative intransigence” that has allowed the constitutional infirmities at the MSOP to persist. (See Doc. No. 1021 at 15-17, 19.) These Amici argue that the Court must impose remedies that are substantive rather than merely procedural in order to measure the impact of the remedies and to hold the state accountable. (Id. at 4-5, 18.) In particular, Amici propose that the Court establish benchmarks to reduce the number of individuals committed at the MSOP and to increase the number of individuals placed in less restrictive alternatives. (See id. at 14, 18.) The ACLU and Professor Janus also recommend substantive changes to clarify the risk threshold that justifies continued commitment. (See id. at 18-19.) Finally, Amici argue that “the only truly effective remedy may be the possibility of shutting down the MSOP system.” (Id. at 19.)
On September 21, 2015, Defendants filed a Brief on Remedies in response to Plaintiffs’ proposed remedies. (Doc. No. 1026.) Defendants argue that Plaintiffs’ proposed remedies exceed constitutional limits placed on a federal district court’s authority. (Id. at 2.) In particular, Defendants assert there are federalism concerns and separation of powers issues raised by the Court’s exercise of authority in this matter. (Id. at 5-8.) Defendants assert that “the Minnesota Legislature may consider initiatives that relate to remedies proposed by Plaintiffs” which would “obviate Court consideration of the proposed remedies.” (Id. at 3.) In addition, Defendants describe many of Plaintiffs’
11

proposed remedies as “practically impossible for . . . Defendants to accomplish.” (Id. at 4.) According to Defendants, Plaintiffs’ proposals “contemplate a total re-shaping of Minnesota sex offender civil commitment law, which would significantly impact the state executive branch, the Minnesota judicial branch, the Minnesota Legislature, county attorneys, and even local governments and communities.” (Id. at 22.) Finally, Defendants argue that Plaintiffs’ proposed remedies constitute improper individualized relief in this Rule 23(b)(2) class action. (Id. at 26.)
On September 24, 2015, Plaintiffs filed a Reply Brief with the Court. (Doc. No. 1029.) On September 30, 2015, the undersigned heard arguments from the parties on the remedies proposed by Plaintiffs and Amici and any objections to those proposals. (Doc. Nos. 1030, 1034.) Hennepin County Attorney Michael Freeman also presented arguments at the September 30, 2015 hearing. (See Doc. No. 1034.)
DISCUSSION I. The Scope of the Court’s Equitable Authority
The Remedies Phase of this class action litigation requires the Court to exercise its equitable authority. “Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.” Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 12 (1971) (quoting Brown v. Bd. of Educ. of Topeka, 349 U.S. 294, 300 (1955)). “Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Id. at 15.
12

The Court’s broad equitable powers are tempered by the principle that “judicial powers may be exercised only on the basis of a constitutional violation.” Id. at 16.
The Supreme Court has identified three factors to guide federal district courts in crafting equitable remedies. First, “the nature of the . . . remedy is to be determined by the nature and scope of the constitutional violation.” Milliken v. Bradley, 433 U.S. 267, 280 (1977) (citing Swann, 402 U.S. at 16). In other words, federal courts may impose remedies that “are aimed at eliminating a condition that . . . violate[s] the Constitution or . . . flow[s] from such a violation.” Id. at 282. Second, the remedy “must indeed be remedial in nature, that is, it must be designed as nearly as possible ‘to restore the victims of [unconstitutional] conduct to the position they would have occupied in the absence of such conduct.’” Id. at 280 (quoting Milliken v. Bradley, 418 U.S. 717, 746 (1974) (Milliken I)); see also id. at 280 n.15 (“[T]he ultimate objective of the remedy is to make whole the victims of unlawful conduct.”). Third, the Court “must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution.” Id. at 280-81. With respect to the third factor, courts need not tolerate undue delay or excuses—such as insufficient funding—in the state authorities’ attempts to remedy constitutional infirmities. As the Supreme Court has explained, “[S]tate and local authorities have primary responsibility for curing constitutional violations. ‘If, however, ‘[those] authorities fail in their affirmative obligations . . . judicial authority may be invoked.’” Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978) (quoting Milliken, 433 U.S. at 281).
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This case involves highly sensitive and politicized issues that implicate important questions of federalism and the separation of powers. To properly balance the myriad interests of all parties affected by this litigation, the Court remains attentive to the proper limits on its equitable powers and can only grant such relief as is authorized by law. However, at the same time, the Court fully expects Defendants to act swiftly to remedy the pervasive constitutional infirmities at the MSOP in accordance with this Order. As the Court has previously stated, the Court “has an obligation to all citizens to not only honor their constitutional rights, but to do so without compromising public safety and the interests of justice. The balance is a delicate and important one, but it can and will be done.” (Doc. No. 966 at 69.) II. First Interim Relief
As noted above, determining the proper remedy and its scope requires the Court to consider the nature of the constitutional violation justifying relief. See Swann, 402 U.S. at 16 (“[T]he nature of the violation determines the scope of the remedy.”). Thus, the Court will briefly summarize the constitutional infirmities outlined in detail in its June 17, 2015 Findings of Fact, Conclusions of Law, and Order. (See Doc. No. 966 at 51-65.)
The Court concluded that section 253D is unconstitutional under the Due Process Clause of the Fourteenth Amendment of the United States Constitution, which 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. The civil commitment of individuals results in a significant curtailment of liberty, infringing the fundamental right to live free
14

of physical restraint. See, e.g., Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom
from bodily restraint has always been at the core of the liberty protected by the Due
Process Clause from arbitrary governmental action.”) (internal citation omitted)).
When a fundamental right is involved, courts must subject the law to strict
scrutiny, placing the burden on the government to show that the law is narrowly tailored
to serve a compelling state interest. See Washington v. Glucksberg, 521 U.S. 702, 721
(1997). To satisfy this standard, the Court determined that section 253D must ensure that
individuals are committed no longer than necessary to serve the state’s compelling
interests. The purpose for which an individual is civilly committed to the MSOP must be
to provide treatment to those committed and to protect the public from individuals who
are both mentally ill and pose a substantial danger to the public as a result of that mental
illness. See Call v. Gomez, 535 N.W.2d 312, 319 (Minn. 1995). The purpose may not be
to impose punishment for past crimes or to prevent future crimes. See Kansas v.
Hendricks, 521 U.S. 346, 373 (1997) (Kennedy, J., concurring) (“If the civil system is
used simply to impose punishment after the State makes an improvident plea bargain on the criminal side, then it is not performing its proper function.”).8
8 Several individuals committed to the MSOP were allowed to plead to lesser criminal charges, not fully aware of what it would mean to be civilly committed. (See Doc. No. 966 at 70.) Also, the Minnesota Department of Corrections (“DOC”) has frequently referred offenders for civil commitment, despite the availability of intensive supervised release following an offender’s prison sentence on the criminal side. (Id. at 72.) Under Minnesota law, first-time sex offenders are mandatorily placed on conditional release for ten years following a prison sentence, and repeat sex offenders are mandatorily placed on conditional release for life. (Id. at 71 (citing Minn. Stat.
(Footnote Continued on Next Page)
15

Applying strict scrutiny, the Court found that “section 253D, on its face and as applied, is not narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment.” (See Doc. No. 966 at 65 (citing Hendricks, 521 U.S. at 361-62.) In particular, the Court concluded that section 253D is facially unconstitutional for six specific reasons and unconstitutional as applied for six specific reasons, as outlined above. These numerous, systemic constitutional violations dictate the scope of the Court’s power to fashion suitable remedies.
The Court may impose a “systemwide remedy” when constitutional violations result in a “systemwide impact.” See Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 420 (1977) (citing Keyes v. Sch. Dist. No. 1, Denver, Colo., 413 U.S. 189, 213 (1973)). This is precisely what the Court found in this case. The constitutional infirmities at the MSOP have created a widespread and deleterious impact on Minnesota’s entire sex offender civil commitment system. The Court, therefore, must exercise its equitable authority to remedy the system as a whole. In doing so, the Court will begin by choosing some initial remedies that must be instituted first.
The record in this case contains ample evidence that the current assessment process and procedures for seeking release from the MSOP are constitutionally
(Footnote Continued From Previous Page) § 609.3455, subds. 6, 7).) Such conditional release could include intensive supervision, GPS monitoring, daily curfews, alcohol and drug testing, and other conditions. (Id.) Minnesota’s reliance on the civil commitment process in lieu of the criminal justice system in criminal sexual conduct cases compounds the systemic problems at the MSOP. For a complete discussion of these issues, see the Court’s June 17, 2015 Findings of Fact, Conclusions of Law, and Order. (Id. at 70-72.)
16

inadequate. Defendants have no meaningful idea of the status of persons committed, which of those persons continue to meet the criteria for commitment, and whether those persons are confined under conditions that remain appropriate. The class-wide remedy for those circumstances is that Defendants must promptly assess those persons it currently has confined, starting with those who are most likely to be mis-classified (and in many cases those who are also the most vulnerable) such as the elderly and individuals with disabilities. Defendants must have those assessments performed by independent qualified examiners using the appropriate standards. In addition, Defendants must not continue to confine individuals who are improperly detained. As is more fully set forth in this Order, these remedies will ensure that those committed still meet the commitment criteria and will allow the terms of commitment to be tailored to the appropriate level of liberty deprivation. Due to the systemic nature of the problems at the MSOP and the fact that Defendants have been on notice of the program’s deficiencies for many, many years, the Court expects prompt compliance with this Order on an expedited time line as outlined below.
A. Independent Risk Assessments and Phase Placement Reevaluation In this First Interim Relief Order, the Court orders Defendants to promptly conduct independent risk and phase placement reevaluation of all committed individuals currently committed to the MSOP. These independent risk assessments will fulfill four distinct purposes. First, they will determine whether committed individuals continue to meet the constitutional standard for commitment. Second, they will determine whether committed individuals could be appropriately transferred or provisionally discharged.
17

Third, they will determine whether committed individuals could be housed in or monitored by a less restrictive alternative. Fourth, they will determine whether committed individuals are in the proper treatment phase. Defendants shall complete the assessments in the order specified by the Court below, starting first with those individuals who have been identified during this litigation as eligible for a reduction in custody, next with the elderly, individuals with substantive physical or intellectual disabilities, and juvenile-only offenders,9 and finally with all remaining committed individuals at the MSOP. The Court orders Defendants to complete these reevaluations on designated time lines and to provide detailed plans relating to these reevaluations as outlined below.
The Court has the authority under Milliken to order Defendants to conduct immediate independent risk assessments and phase placement reevaluation of all MSOP patients. First, these remedies are “aimed at eliminating a condition that . . . violate[s] the Constitution or . . . flow[s] from such a violation.” Milliken, 433 U.S. at 282. In its June 17, 2015 Findings of Fact, Conclusions of Law, and Order, the Court found that Defendants’ application of section 253D resulted in unconstitutional deprivations of liberty in contravention of the Fourteenth Amendment’s Due Process Clause because:
(1) Defendants do not conduct periodic, independent risk assessments or otherwise evaluate whether an individual continues to meet the initial commitment criteria or the discharge criteria if an individual does not file a petition; (2) those risk assessments that have been performed have not all been performed in a constitutional manner; (3) individuals have remained
9 The Court uses the term “juvenile-only offenders” to refer to committed individuals at the MSOP with no adult convictions. At the time of trial, there were sixty-seven juvenile-only offenders committed to the MSOP. (See id. at 19 n.6.)
18

confined at the MSOP even though they have completed treatment or sufficiently reduced their risk; . . . and (6) although treatment has been made available, the treatment program’s structure has been an institutional failure and there is no meaningful relationship between the treatment program and an end to indefinite detention. (Doc. No. 966 at 67.) The Court explained, “The Fourteenth Amendment does not allow the state, DHS, or the MSOP to impose a life sentence, or confinement of indefinite duration, on individuals who have committed sexual offenses once they no longer pose a danger to society.” (Id. at 68.) Defendants argue that the Court “has the authority only to cure constitutional violations established by the record, not to require Defendants to determine whether such violations exist.” (Doc. No. 1026 at 17.) In particular, Defendants claim that proposals relating to risk assessments and treatment progress reviews are improper because they “are not aimed at remedying a condition held to violate the Constitution, but rather seek to determine whether any class member committed to MSOP is entitled to a reduction in custody.” (Id.) The Court disagrees. The record could not be more clear. The MCTA does not require Defendants to conduct periodic risk assessments to ensure that committed individuals continue to meet statutory requirements for commitment.10 (Doc. No. 966 at 36.) Defendants’ own witnesses “admit that they do not know whether many
10 The Court notes that this aspect of Minnesota’s civil commitment scheme is in contrast with the large majority of states, including the “best practice” states of Wisconsin and New York, which require annual risk assessments. (See id. at 36; see also Amicus Brief of ACLU-MN and Professor Janus (Doc. No. 1021 at 14) (describing Wisconsin and New York as “best-practice states”).)
19

individuals confined at the MSOP meet the commitment or discharge criteria.” (Id. at 60.) Further, not only did risk assessors at the MSOP not begin using statutory criteria in risk assessment reports until late 2010 or early 2011, (id. at 40), but the MSOP risk assessors do not receive any training on the constitutional standards for discharge or commitment. (Id.) And astonishingly, the standard identified by the Minnesota Supreme Court in 1995 in Call v. Gomez was not utilized in the MSOP’s risk assessments until June 2014. (Id. at 41.) The proper remedy for the constitutional infirmity of the continued commitment by Defendants of individuals who may no longer pose a danger to society is to conduct independent risk assessments to ensure that individuals continue to be committed under constitutional standards and are in the proper treatment phase11 with the possibility of moving toward eventual release.
Second, these remedies are indeed remedial in nature because they will restore those committed at the MSOP to the position they would have been in absent the wrongful conduct of Defendants. See Milliken, 433 U.S. at 280. In other words, conducting risk assessments and reevaluating each committed individual’s treatment phase placement will start the process of correcting a systemic constitutional violation that has resulted in the unconstitutional confinement of those held at the MSOP for years. If Defendants had operated a constitutional civil commitment program from the MSOP’s
11 See the Court’s June 17, 2015 Findings of Fact, Conclusions of Law, and Order (Doc. No. 966 at 23-35) for a complete discussion of the MSOP treatment program and the problems associated with individual treatment progress and treatment phase placement.
20

inception, each committed individual would have been routinely assessed to ensure that they were committed “for only so long as he or she continues both to need further inpatient treatment and supervision for his sexual disorder and to pose a danger to the public.” Call, 535 N.W.2d at 319 (emphasis added). Defendants claim that the record at trial does not support a finding “that any Plaintiff is being unconstitutionally detained.” (Doc. No. 1026 at 20.) Defendants argue, “[b]ecause there was no evidence that any Class representative—let alone the entire Class—is entitled to a less restrictive setting or freedom, there is no remedy needed to ‘restore’ Plaintiffs ‘to the position they would have occupied in the absence of’ the purported unconstitutional conduct.” (Id. at 19 (quoting Milliken, 433 U.S. at 280).) Denying any proven harm to Plaintiffs, Defendants argue that the Court’s remedial power is narrowly limited. (Id. at 20.) The Court rejects this argument.
Defendants are rehashing arguments that this Court has already considered in the liability phase of this litigation. The Court concluded that Defendants’ application of section 253D is unconstitutional “because Defendants apply the statute in a manner that results in Plaintiffs being confined to the MSOP beyond such a time as they either meet the statutory reduction in custody criteria or no longer satisfy the constitutional threshold for continued commitment.” (Doc. No. 966 at 60.) Based on testimony of Defendants’ own witnesses, the Court found that “a full risk assessment is the only way to determine whether a committed individual meets the discharge criteria.” (Id. at 36.) By not doing these assessments, Defendants are essentially burying their heads in the sand, rather than doing what is required of them to run a constitutional program—make sure that those
21

committed continue to pose a danger to the public. The only way to adequately remedy
the long-standing constitutional violations at the MSOP now is to immediately assess all
committed individuals to ensure that the fact and conditions of their confinement meet
constitutional standards.
Third, the Court imposes these remedies taking full consideration of “the interests
of state and local authorities in managing their own affairs, consistent with the
Constitution.” See Milliken, 433 U.S. at 281. Defendants cite numerous limitations
described by Commissioner Jesson that purportedly inhibit the MSOP’s ability to conduct
risk assessments of all committed individuals at the MSOP. (See, e.g., Doc. No. 1026 at
24-25 (“Defendants know from experience the challenge of recruiting the highly qualified forensic evaluators needed to conduct risk assessments.”).)12 Also, in critiquing
Plaintiffs’ proposed remedies, Defendants cite to a case in which the Supreme Court
rejected a federal court injunction that was deemed “inordinately—indeed wildly— intrusive.” (See id. at 22-23 (quoting Lewis v. Casey, 518 U.S. 343, 362 (1996)).)13 This
12 Commissioner Jesson cites “shortage of qualified staff,” potentially lengthy administrative processes for hiring independent contractors, and “limited ability to divert funds” as barriers to conducting immediate risk assessments. (Doc. No. 1027 at 2-8.) 13 In Lewis, the injunctive order sought to protect inmates’ rights of access to the courts and counsel and “specified in minute detail the times that libraries were to be kept open, the number of hours of library use to which each inmate was entitled (10 per week), the minimal educational requirements for prison librarians (a library science degree, law degree, or paralegal degree), the content of a videotaped legal-research course for inmates (to be prepared by persons appointed by the Special Master but funded by [the Arizona Department of Corrections]), and similar matters.” See Lewis v. Casey, 518 U.S. 343, 347 (1996).
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First Interim Relief Order avoids such improper intrusion by deferring to state authorities’ expertise to carefully devise a specific plan for implementation. In this First Interim Relief Order, the Court identifies the assessments that Defendants must complete to come into compliance with constitutional standards and leaves the implementation of those assessments in the general control of state authorities at the MSOP.
The Court has fully considered Defendants’ claims regarding the timing and feasibility of conducting risk assessments of all committed individuals at the MSOP, but these assessments must be done. The State of Minnesota has elected to establish this sex offender civil commitment program, and it is Defendants’ responsibility to ensure that it is operated in a constitutional manner. Cf. Welsch v. Likins, 550 F.2d 1122, 1132 (8th Cir. 1977) (“If Minnesota chooses to operate hospitals for the [developmentally disabled], the operation must meet minimal constitutional standards, and that obligation may not be permitted to yield to financial considerations.”). Due to the systemic problems at the MSOP of which Defendants have been on notice for years, the Court emphasizes that Defendants must make the implementation of these remedies their top priority and must implement these processes in an expedited fashion to quickly resolve the constitutional infirmities at the MSOP.
B. Discharge-Related Remedies In this Order, the Court also orders remedies relating to the discharge or transfer of committed individuals following the assessments described above. If the independent risk assessment of any individual concludes that the individual should be fully discharged, transferred, or receive a reduction in custody, the MSOP must seek the
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release or reduction in custody of that individual to the appropriate placement by
immediately filing a petition with the SRB. Should Defendants wish to challenge the
assessment that an individual should be fully discharged, transferred, or receive a
reduction in custody, the burden shall be on Defendants to prove that such individual’s
commitment or current level of custody is appropriate by clear and convincing evidence.
Throughout the petitioning process, Defendants must provide all petitioners with access
to experienced independent counsel and professional experts. Defendants must ensure
that the SRB and SCAP hearings following the independent risk assessments proceed in a
timely manner and in no case conclude more than 120 days after the petition has been
filed on behalf of a patient. Defendants must ensure that less restrictive alternatives are
available to accommodate the placement of all individuals found eligible for a reduction
in custody. Such alternatives could include, for example, facilities developed and run by
DHS, facilities in which DHS has entered into third-party contracts to provide services to
committed individuals, or intensive supervision and treatment of committed individuals,
using means such as GPS monitoring, daily curfews, and no-contact orders, among other things.14 For individuals found eligible for discharge, Defendants must provide
14 Although the parties devoted little if any attention to this possibility at trial or during the Remedies Phase of this litigation, the Court notes that community supervision of sex offenders under intensive supervision and monitoring should be considered a valid less restrictive alternative to commitment in any facility. As noted in the Court’s June 17, 2015 Findings of Fact, Conclusions of Law, and Order, Grant Duwe, Director of Research at the DOC has stated, “[M]any high-risk sex offenders can be managed successfully in the community. The cost of civil commitment in a high-security facility also implies that this type of commitment should be reserved only for those offenders
(Footnote Continued on Next Page)
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transitional services and discharge planning needed to facilitate the individual’s
successful transition into the community. Following the treatment phase placement
reevaluation of each individual at the MSOP, Defendants shall immediately move any
individual who is determined to be in an improper treatment phase into the proper
treatment phase. If Defendants wish to object to the movement of any individual, the
matter must be submitted to the Special Master for resolution. The Court orders
Defendants to provide a detailed plan to the Special Master describing how Defendants will implement these remedies at the MSOP as outlined below.15
The Court has the authority under Milliken to order Defendants to implement the
remedies relating to discharge described above. First, these remedies are appropriate
given the nature and scope of the constitutional violations relating to the MSOP’s
discharge process. See Milliken, 433 U.S. at 280, 282. Defendants contend that “[t]he
Constitution does not require MSOP staff to petition for reduction in custody on behalf of
clients.” (Doc. No. 1026 at 13.) Defendants also argue that Minnesota statutes already
(Footnote Continued From Previous Page) who have an inordinately high risk to sexually reoffend.” (Doc. No. 966 at 69; see also Doc. No. 1022, ¶ 2, Ex. 1, at 9.) Other states have successfully implemented such alternatives in their sex offender civil commitment schemes. (See, e.g., Doc. No. 966 at 11-12 (describing programs in Wisconsin and New York that utilize supervised release or “strict and intensive supervision and treatment”).) 15 The Court notes that Defendants’ plan must establish a means of expedited release for those individuals who are found to no longer meet the constitutional standards for commitment. If the Court is not satisfied that Defendants’ proposed plan achieves this requirement, the Court may impose more drastic remedies such as enjoining enforcement of the statutory scheme requiring committed individuals to utilize the SRB and SCAP process for release from the MSOP.
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provide for state-funded attorneys for committed individuals seeking release, (id. at 9
(citing Minn. Stat. § 253D.20)), provide access to independent examiners, (id. at 16
(citing Minn. Stat. § 253D.28, subd. 2(c))), and place the burden on Defendants to
challenge discharge, (id. at 15 (citing Minn. Stat. § 253D.28)). Defendants also challenge
the Court’s authority to order Defendants to ensure the availability of less restrictive
alternatives, claiming “[t]here is no Fourteenth Amendment right to treatment in a least
restrictive alternative setting.” (Id. at 12 (citing Beaulieu v. Ludeman, 690 F.3d 1017,
1031-33 (8th Cir. 2012).) These arguments ignore the Court’s clear findings of
unconstitutionality in its June 17, 2015 Findings of Fact, Conclusions of Law, and Order.
The Court concluded section 253D is facially unconstitutional because:
(4) section 253D authorizes the burden to petition for a reduction in custody to impermissibly shift from the state to committed individuals; (5) section 253D contemplates that less restrictive alternatives are available and requires that committed individuals show by clear and convincing evidence that a less restrictive alternative is appropriate, when there are no less restrictive alternatives available; and (6) section 253D does not require the state to take any affirmative action, such as petition for a reduction in custody, on behalf of individuals who no longer satisfy the criteria for continued commitment.
(Doc. No. 966 at 67.) Similarly, the Court concluded section 253D is unconstitutional as
applied because:
(4) discharge procedures are not working properly at the MSOP; [and] (5) although section 253D expressly allows the referral of committed individuals to less restrictive alternatives, this is not occurring in practice because there are insufficient less restrictive alternatives available for transfer and no less restrictive alternatives available for initial commitment[.]
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(Id.) Significantly, the Court found that “[t]he MSOP knows that there are Class Members who meet the reduction in custody criteria or who no longer meet the commitment criteria but who continue to be confined at the MSOP.” (Id. at 47.) As part of this litigation, the Rule 706 Experts identified two such individuals whose situations are likely representative of many more individuals confined at the MSOP. The Rule 706 Experts issued a report recommending that Defendants transfer or provisionally discharge the MSOP’s one committed female, Rhonda Bailey. (See id. at 18-19.) Bailey was never transferred, despite testimony of the MSOP’s Clinical Director that the MSOP had the ability to contract with in-state and out-of-state facilities to place her in another setting. (Id. at 19.) The Rule 706 Experts also unanimously recommended that Defendants fully discharge another committed individual from the MSOP. (See id. at 45 (describing the recommendation to fully discharge Eric Terhaar, a juvenile-only offender at the MSOP).) Despite knowledge that there are individuals who no longer meet commitment criteria, the MSOP has never filed a petition on behalf of a committed individual for full discharge from the program. (Id. at 47.)
In addition, Defendants have full control to schedule SRB hearings and to appoint individuals to the SRB, yet Defendants have allowed lengthy delays in the SRB process and significant backlogs to delay decisions on individual petitions for transfer, provisional release, or discharge. (Id. at 44-46, 56.) Finally, despite the testimony of MSOP representatives that “there are committed individuals at the MSOP, including some of the sixty-seven juvenile-only offenders at the MSOP, who could be treated safely in a less secure facility,” (id. at 21), and the testimony of Commissioner Jesson that she
27

had identified specific individuals at the MSOP who could be transferred to a less restrictive facility, (id. at 22), Defendants have failed to provide a sufficient number of such facilities, either by their own creation or through third-party contracts. (Id. at 21-23; see also id. at 47 (noting that the MSOP has filed petitions for reduction in custody on behalf of seven committed individuals, six of whom were never ultimately transferred).) In fact, history has shown just how systemic the problem is when the Governor of the State of Minnesota intervened to halt all transfers to less restrictive facilities to await a possible legislative solution that has never, after several attempts, come to fruition. (See id. at 22.) Simply put, in light of the evidence and the Court’s findings, the Court has the authority to order Defendants to implement remedial measures to ensure that committed individuals are not detained longer than necessary due to these systemic constitutional violations in the discharge process at the MSOP.
Second, these discharge-related remedies are truly remedial in nature. See Milliken, 433 U.S. at 280. For many of the same reasons outlined above, these remedies to the MSOP’s discharge process will have the effect of restoring committed individuals to the position they would have held had the MSOP been operating constitutionally all along. If Defendants know that an individual no longer meets constitutional standards for commitment, the program may not continue to detain that individual at the MSOP. The Court’s discharge-related remedies ordered below will help ensure that individuals committed at the MSOP are not detained beyond such time as the constitution permits. Importantly, putting committed individuals into the position they would have been in had the MSOP been operating constitutionally all along requires Defendants to provide
28

transitional services to individuals who are deemed eligible for discharge. Defendants have offered no reintegration services to individuals committed to the MSOP until they have reached the final phase of treatment, (see Doc. No. 966 at 24), so individuals in earlier treatment phases have received no assistance with discharge planning whatsoever (id. at 24-25). Because Defendants’ reevaluation of committed individuals may require provisional or complete discharge of committed individuals who have not received any reintegration services from the MSOP, Defendants must provide these services in accordance with this Order to provide a full remedy to those who have been subject to unconstitutional confinement at the MSOP.
Third, the Court imposes these remedies with appropriate deference to state and local authorities. See Milliken, 433 U.S. at 280-81. The Court acknowledges that Minnesota statutes as enacted may include some of the relief the Court imposes today. See, e.g., Minn. Stat. § 253D.20 (providing a right to counsel for committed individuals “at any proceeding under [Chapter 253D]”). As applied, however, Defendants have not ensured that the discharge process is operating properly to confine individuals at the MSOP for only so long as the Constitution allows.16 The Court also imposes this relief in full consideration of Commissioner Jesson’s claims regarding difficulty of implementing
16 See Amicus Brief of ACLU-MN and Professor Janus (Doc. No. 1021 at 4) (“[T]he State’s persistent two-decades of ‘slow-walking’ the procedural protections that were theoretically already in the law demonstrates that proper process is not sufficient to guarantee a non-punitive purpose. If the past two decades have proved anything, it is that procedural due process, standing alone, cannot protect against the subterfuge of an intent to punish.”).
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these discharge-related remedies.17 In deference to the interests of state authorities in
“managing their own affairs,” Milliken, 433 U.S. at 281, the Court invites the
participation of Defendants and other state actors to propose in detail how they will shape
the particular discharge process to fully comply with this Order.
C. Annual Independent Risk Assessments
Finally, the Court orders Defendants to establish a plan to conduct annual,
independent risk assessments to determine whether each client continues to satisfy civil
commitment requirements and whether each client’s treatment phase placement is proper.
The discharge-related remedies outlined above should apply identically following these
subsequent annual assessments. The Court orders Defendants to provide a plan to the
Special Master describing how Defendants will comply with this remedy as outlined
below.
17 Commissioner Jesson suggested that a requirement to petition on behalf of committed individuals would create “a number of difficulties,” including determining whose belief should trigger a determination that a petition is appropriate and what should be done if a committed individual does not wish to petition when the MSOP initiates the process. (See Doc. No. 1027 at 14.) Jesson also described the “limited availability of MSOP forensic evaluators and treatment psychologists” as barriers to increasing the frequency of SRB hearings. (See id. at 9-10.) Further, Jesson claimed the MSOP has virtually no authority to impose remedies related to the provision of counsel or experts for committed individuals and suggests that these remedies are already included in Minnesota statutes. (See id. at 18.) Finally, Jesson described numerous barriers to creating additional less restrictive alternatives for committed individuals, including limited funding, lengthy time lines to build or repurpose facilities, licensing and approval requirements, and community opposition which Jesson described as “a serious, or insurmountable, obstacle.” (See id. at 10-14; see also Doc. No. 1026 at 25.)
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The Court has the authority to order Defendants to complete annual independent risk assessments of all committed individuals at the MSOP. In ordering this remedy, the Court reiterates its analysis above regarding the appropriateness of a remedy imposing immediate risk assessments.18 This additional measure will not only remedy immediate constitutional violations suffered by individuals at the MSOP, but will ensure that constitutional violations that have plagued the MSOP’s operation will not persist into the future. In its Findings of Fact, Conclusions of Law, and Order, the Court found that “[r]isk assessments are only valid for approximately twelve months.” (Doc. No. 966 at 36.) And Defendants own witnesses “credibly testified that if a risk assessment has not been conducted within the past year on civilly committed individuals at the MSOP, the MSOP does not know whether those individuals meet the statutory criteria for commitment or for discharge.” (Id.) Thus, as suggested by the state’s own authorities, annual risk assessments are a necessary remedy to ensure the constitutionality of the MSOP’s continued commitment of sex offenders into the future.
Based on the identified constitutional violations at the MSOP, the measures needed to directly remedy these violations, and the Court’s deference to MSOP
18 In response to Plaintiff’s proposal to implement annual, independent risk assessments of committed individuals at the MSOP, Defendants reiterate many of the same objections raised with respect to immediate risk assessments. (See Doc. No. 1026 at 17 (arguing that annual independent risk assessments “are not aimed at remedying a condition held to violate the Constitution”); Doc. No. 1027 at 8-9 (noting hiring additional risk assessors and funding as key limitations to implementing annual risk assessments of all committed individuals at the MSOP).)
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authorities in crafting specific plans for compliance, the Court concludes that the injunctive relief ordered below is proper under Milliken.
D. Class-Wide Relief Defendants challenge Plaintiffs’ proposed remedies, including those that the Court orders today, because, according to Defendants, they request individualized relief “which is impermissible in [a] Rule 23(b)(2) class action.” (Doc. No. 1026 at 26 (citing Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2557 (2011)).) In particular, Defendants argue that ordering assessment of all class members “is exactly the type of non-final injunctive order prohibited in a (b)(2) class.” (Id. at 27.) Defendants challenge any form of relief that would result in individualized determinations or benefits for only a subset of Class members including the creation of less restrictive facilities or remedies specific to individuals with physical or mental disabilities. (See id. at 27-28.) Contrary to Defendants’ assertions, the remedies ordered by the Court below are not improper for class-wide relief under Federal Rule of Civil Procedure 23(b)(2). Class certification under Rule 23(b)(2) is appropriate when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “Class cohesiveness and the possibility of uniform resolution” are hallmark characteristics of a properly certified Rule 23(b)(2) class. Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1036 (8th Cir. 2010). As the Supreme Court has explained, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Wal-Mart Stores, 131 S. Ct. at 2557.
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“Because one purpose of Rule 23(b)(2) was to enable plaintiffs to bring lawsuits vindicating civil rights, the rule ‘must be read liberally in the context of civil rights suits.’” Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980) (quoting Ahrens v. Thomas, 570 F.2d 286, 288 (8th Cir. 1978)); see also 7AA Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus, & Adam N. Steinman, Federal Practice and Procedure § 1775 (3d ed. 2015) (“[S]ubdivision (b)(2) was added to Rule 23 in 1966 primarily to facilitate the bringing of class actions in the civil-rights area.”).
In this case, all Class members have suffered an identical injury through the unconstitutional deprivation of liberty in contravention of the Fourteenth Amendment. (See Doc. No. 966 at 50.) As this Court stated in its Findings of Fact, Conclusions of Law, and Order, “all Class Members have suffered an injury in fact—the loss of liberty in a manner not narrowly tailored to the purpose for commitment.” (Id.) By failing to periodically assess all Class members and failing to operate a treatment program that provides a meaningful opportunity for potential release into the community, Defendants have directly harmed all Class members and have caused substantial injury. (See id.) The first interim relief ordered herein directly and finally addresses harms faced by all Class members, making such relief proper in this Rule 23(b)(2) class action litigation. The Court’s remedy will help establish a system through which all class members’ rights may be vindicated. The fact that the Court’s remedy may result in varied outcomes for committed individuals at the MSOP does not render certification under Rule 23(b)(2) improper. See Coley, 635 F.2d at 1378 (finding class certification under Rule 23(b)(2) proper and rejecting the district court’s determination that “so many variations of remedy
33

[for inmates committed to a state mental hospital]” would make “any sort of class relief . . . impossible”). Unlike cases in which courts ordered individualized relief tailored to individualized harms, the relief that the Court imposes today will broadly affect the MSOP’s risk assessment and discharge processes and will address the constitutional harms inflicted upon all Class members. Cf. Avritt, 615 F.3d at 1037 (affirming a district court’s denial of class certification under Rule 23(b)(2) when “resolution of the plaintiffs’ claims would require numerous individual determinations”); Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 499 (7th Cir. 2012) (finding class certification under Rule 23(b)(2) improper because the district court’s remedy “require[d] thousands of individual determinations of class membership, liability, and appropriate remedies”). The relief imposed below will operate identically for all class members to remedy the unconstitutional deprivations of liberty faced by those committed to the MSOP.
CONCLUSION Given the MSOP’s decades-long history of operating an unconstitutional civil commitment program, the deeply systemic nature of the problems plaguing this state’s sex offender civil commitment scheme, and the minimal progress made toward remedying any constitutional infirmities since the start of this litigation four years ago, the Court concludes that it must exercise its broad remedial power. The Constitution requires that substantial changes be made to Minnesota’s sex offender civil commitment scheme at the MSOP. The Court emphasizes that it has invited the participation of the state in shaping the proper remedy for eliminating the constitutional violations at the MSOP. The
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Supreme Court has indicated that it is proper for federal courts to invite state input in developing appropriate relief in institutional reform cases. See Lewis v. Casey, 518 U.S. 343, 362 (1996) (identifying the “proper procedure” for federal courts to follow in imposing institutional reform remedies in the prison context). Particularly, federal courts should “charge[] the [state agency] with the task of devising a Constitutionally sound program.” Id. (internal citation omitted). And, the state agency should “respond[] with a proposal” that the Court may approve after inviting objections from the opposing party. Id. at 362-63. The Court has followed this procedure, both leading up to this Order and through the relief identified herein. Defendants have refused to propose any solutions. This Order requires Defendants to develop plans to fully implement the remedies ordered below. Offering Defendants the opportunity to submit such plans gives state authorities sufficient input into the proper administration of the MSOP. This Order therefore lies squarely within the scope of the Court’s constitutional authority and respects the sensitive federalism concerns inherent in this case.
The Court reminds Defendants of how important prompt and meaningful compliance will be for protecting not only the constitutional rights of the Plaintiffs but also the credibility of the state’s civil commitment system and the public safety for all Minnesotans. The State of Minnesota is not obligated to operate a civil commitment program for sex offenders. However, because the state has chosen to operate this system, it must do so in a constitutional manner, and it must provide appropriate funding to support the program’s constitutional operation. See Welsch, 550 F.2d at 1132. Despite Defendants’ claim that “the Minnesota Legislature may consider initiatives” that would
35

supplant the need for judicially-imposed remedies (Doc. No. 1026 at 3), the Court will not allow Defendants to simply wait for such a solution. The political sensitivities surrounding the MSOP have repeatedly hampered past efforts at legislative reform.19 To properly remedy the constitutional violations found in Defendants’ operation of the MSOP, Defendants must take action to resolve the program’s unconstitutionality without waiting for legislative change. The Court also reminds Defendants that the Remedies Phase of this litigation is not a platform for them to relitigate previously-determined issues such as the actual harm faced by the Plaintiffs in this matter or the fundamental constitutional flaws in the MSOP’s continued operation. Continued intransigence by Defendants will only further compound the significant harms faced by those subject to unconstitutional confinement at the MSOP. And a prolonged stay of enforcement may also place at risk those individuals at the MSOP who continue to operate the program on a daily basis. The Court will not tolerate delay.
In the interest of federalism, the Court hopes that Defendants’ response to this Order does not necessitate deeper and more prolonged involvement of the Court in this
19 See HCA Amicus Curiae Memorandum (Doc. No. 1023 at 3-4) (describing prior legislative efforts to improve the state’s civil commitment system); Amicus Brief of ACLU-MN and Professor Janus (Doc. No. 1021 at 15-17) (“The Legislature has had ample opportunities to address the glaring problems with MSOP and they have so far failed to do so.”); Doc. No. 966 at 15-17 (describing several reports critical of the state’s civil commitment scheme and noting recent bills introduced in the legislature that have failed to implement key changes).
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state’s civil commitment scheme.20 And in the interest of public safety, the Court hopes
to avoid the need to impose a more drastic solution in the future such as demanding the
release of individuals committed to the MSOP21 or shutting down the program’s
operation.22 Even so, the Court notes that the relief outlined below is interim only. The
20 See, e.g., Turay v. Richards, No. C91-0664RSM, 2007 WL 983132, at *5 (W.D. Wa. Mar. 23, 2007) (dissolving an injunction over a state’s sex offender program that had lasted over a decade and noting that “injunctions against the state are not intended to operate in perpetuity”).
21 See, e.g., Coleman v. Brown, No. 2:90-cv-0520 LKK JFM P, 952 F. Supp. 2d 901, 935 (E.D. Cal. 2013) (ordering a state prison system to release prisoners to achieve a specific population threshold in the event that the state’s implementation plan failed to reach this threshold by a given date). The Court is particularly troubled by the possible remedy of immediately releasing individuals from the MSOP without proper transitional services in place to ensure that these individuals are prepared to live outside an institutionalized setting. (See Doc. No. 966 at 69-70 (“[P]rovisional discharge or discharge from the MSOP does not mean discharge or release without a meaningful support network, including a transition or release plan into the community with intensive supervised release conditions.”).) Section 253D contemplates that the MSOP may provisionally discharge committed individuals from the program in accordance with a provisional discharge plan “developed, implemented, and monitored by the executive director in conjunction with the committed person and other appropriate persons.” See Minn. Stat. § 253D.30. The Court has been unable to fully evaluate how this provisional discharge process is applied by Defendants, however, because Defendants offered few details about this topic at trial. (See, e.g., Doc. No. 966 at 24-25.) This lack of evidence can properly be attributed to Defendants’ inexperience in implementing provisional discharge plans because only three individuals have ever been provisionally discharged from the MSOP in the program’s history. (See id. at 11.)
22 See Amicus Brief of ACLU-MN and Professor Janus (Doc. No. 1021 at 19) (“[T]he only truly effective remedy may be the possibility of shutting down the MSOP system.”). Cf. Welsch v. Likins, 550 F.2d 1122, 1132 & n.8 (8th Cir. 1977) (noting in the context of remedying unconstitutional infirmities at Minnesota’s state hospitals for individuals with disabilities that “[a]lternatives to the operation of the existing state hospital system . . . may appear undesirable, but alternatives do exist” and suggesting that
(Footnote Continued on Next Page)
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Special Master and the Court will monitor Defendants’ compliance with these initial remedies, and more remedies orders are likely to follow.
Finally, although the Court cannot dictate what statutory solutions the legislature should enact to remedy the constitutional infirmities at the MSOP, the legislature should prioritize and begin with addressing the issues identified in this First Interim Relief Order (immediate risk and phase placement reevaluations, discharge-related remedies including prompt discharge or transfer of individuals who are no longer committed under constitutional standards, ensuring availability of less restrictive alternatives such as new facilities or intensive supervision using GPS monitoring, expedited completion of SRB and SCAP hearings (or revising the discharge process altogether), and implementation of an annual risk reevaluation process). Defendants should urge the legislature to prioritize these remedies and to provide the necessary funding to remedy the pervasive constitutional violations faced by those detained at the MSOP. Justice requires no less.
(Footnote Continued From Previous Page) “[a]n extreme alternative would, of course, be the closing of the hospitals and the abandonment by the State of [the program]”).
38

ORDER

Based upon the Findings of Fact and Conclusions of Law, the presentations and

submissions of the parties, and the Court being otherwise duly advised in the premises,

IT IS HEREBY ORDERED that:

1. Defendants are hereby enjoined as follows:

a. Defendants must promptly conduct independent risk and

phase placement reevaluation of all current patients at the MSOP. These

independent risk assessments shall determine whether each patient

(1) continues to meet the constitutional standard for commitment as set

forth in Call v. Gomez, 535 N.W.2d 312 (Minn. 1995); (2) could be

appropriately transferred or provisionally discharged; (3) could be housed

in or monitored by a less restrictive alternative; and (4) is in the proper

treatment phase. Defendants must complete these assessments according to

the following time lines:

i.

Within 30 days, Defendants shall complete

reevaluations of the six individuals in the Alternative

Program who were designated for transfer to Cambridge, Eric

Terhaar, and Rhonda Bailey.

ii.

Within 30 days, Defendants shall submit a

detailed plan for approval by the Special Master for the

reevaluations of the elderly, individuals with substantive

physical or intellectual disabilities, and juvenile-only 39

offenders. The plan must identify the individuals who will be

reevaluated, the independent evaluators who will conduct the

evaluations, and a detailed schedule for these reevaluations to

be completed by a presumptive deadline of April 1, 2016,

subject to modification by the Court based on the

recommendations of the Special Master taking into account

any submissions of the parties.

iii.

Within 60 days, Defendants shall submit a

detailed plan for approval by the Special Master for the

reevaluations of all remaining individuals at the MSOP. The

presumptive completion deadline for these reevaluations is

December 31, 2017, subject to modification by the Court

based on the recommendations of the Special Master taking

into account any submissions of the parties.

b. If the independent risk assessment for any patient concludes

that the patient should be fully discharged, transferred, or receive a

reduction in custody, the MSOP must seek the release or reduction in

custody of that patient to the appropriate placement by immediately filing a

petition with the Special Review Board. See Minn. Stat. § 253D.27,

subd. 2. Should Defendants wish to challenge the finding that a patient

should be fully discharged, transferred, or receive a reduction in custody,

the burden shall be on Defendants to prove that such individual’s 40

commitment and/or current level of custody is appropriate by clear and convincing evidence. See Minn. Stat. § 253D.28, subd. 2(d). Defendants must provide access to experienced independent counsel and professional experts to all petitioners. Defendants must ensure that the Special Review Board and Supreme Court Appeal Panel hearings following the independent risk assessments proceed in a timely manner and in no case conclude more than 120 days after the petition has been filed on behalf of a patient.
c. Defendants must ensure that less restrictive alternatives are available to accommodate all individuals found eligible for a reduction in custody. For individuals found eligible for discharge, Defendants must provide transitional services and discharge planning needed to facilitate the individual’s successful transition into the community.
d. Following each treatment phase placement reevaluation identified in part a., above, Defendants shall immediately move any individual who is determined to be in an improper treatment phase into the proper treatment phase. If Defendants wish to object to the movement of any individual, the matter must be submitted to the Special Master for resolution.
e. Defendants shall establish a plan to conduct annual, independent risk assessments to determine whether each client still satisfies the civil commitment requirements and whether each client’s treatment
41

phase placement is proper. Parts b., c., and d. shall apply equally to the results of these subsequent annual assessments.
f. Within 30 days, Defendants must submit a plan to the Special Master for approval by the Court providing for how they will complete the actions identified in parts b., c., and d., and e., above. Should Defendants seek an alternate deadline, they must prove to the Court why a later deadline is proper. 2. Special Master former Minnesota Supreme Court Chief Justice Eric J. Magnuson shall have authority to monitor compliance with the remedies identified above. The Special Master shall also have the authority to implement and enforce the injunctive relief imposed by the Court and to mediate any dispute between the parties with regard to the implementation of the remedies. Mediation of disputes by the Special Master shall be binding upon the parties. 3. This First Interim Relief Order contemplates that the Court will order further specific relief against Defendants. Subsequent orders by this Court may require Defendants to make improvements to the MSOP’s treatment structure and discharge process, to conduct training for MSOP employees on the constitutional standards for commitment, to require periodic evaluation of the MSOP’s treatment program by external experts, or to develop a statewide public education campaign to educate the public about Minnesota’s sex offender civil commitment scheme, among other things. The Court may also revisit the relief ordered above in the event that Defendants fail to act on these requirements.
42

4. The Court shall retain jurisdiction over the Parties for 5 years from the date

of final judgment, unless the Court orders otherwise.

5. If Defendants fail to fully comply with this Order, the Court reserves the

right to issue an injunction enjoining the enforcement of the Act and precluding civil

commitments under the Act and to issue an order to show cause why Defendants should

not be held in contempt.

Dated: October 28, 2015

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

43

 
 CASE 0:11-cv-03659-DWF-JJK Document 982 Filed 07/17/15 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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 official capacities,
Defendants.

Civil No. 11-3659 (DWF/JJK)
ORDER REGARDING CLASS NOTICE

Daniel E. Gustafson, Esq., Karla M. Gluek, Esq., David A. Goodwin, Esq., Raina Borrelli, Esq., Lucia G. Massopust, Esq., and Eric S. Taubel, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.
Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Adam H. Welle, and Aaron Winter, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for Defendants.

On June 17, 2015, the Court issued an Order directing the parties to submit a proposed notice of the August 10, 2015 fairness hearing on the dismissal of Counts IV, XI, XII, and XIII to the class members. (Doc. No. 967.) The parties were unable to agree upon

CASE 0:11-cv-03659-DWF-JJK Document 982 Filed 07/17/15 Page 2 of 5
the content of the class notice and submitted briefs in support of their respective positions.
(Doc. Nos. 979, 980.) Based upon the submissions of the parties, the Court hereby enters
the following:
ORDER
1. Plaintiffs’ proposed class notice (Doc. No. [981], Ex. A) is APPROVED with
the following modifications:
a. The following text, which appears twice on page 2 of Plaintiffs’
proposed notice, shall be deleted from the Notice disseminated to the class:
You may or may not also be barred from bringing such claims in state court.
b. The above text shall be replaced with the following text:
You may also be barred from bringing or participating in any lawsuit against the Defendants in state court for relief on the State Law Claims.
c. The following paragraph, which appears on page 3 of Plaintiffs’
proposed notice, shall be deleted from the Notice disseminated to the class:
The dismissal with Prejudice may or may not affect your right to individually bring the State Law Claims against these Defendants in state court for damages, injunctive relief, or declaratory relief. Subject to any defenses that Defendants may raise (including for example, this Dismissal with Prejudice or the statute of limitations), you may or may not be able to pursue individual (as opposed to Class) State Law Claims in state court for damages and/or injunctive and declaratory relief. Whether the Dismissal with Prejudice affects your rights to bring these State Law Claims will be decided by the judge in the state court if you decide individually to bring these State Law Claims against these Defendants. Regardless of how the state court decides these past State Law Claims, you may still bring these or similar claims against the Defendants involving future conduct (that is conduct that occurs from the date of Dismissal with Prejudice going forward).
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CASE 0:11-cv-03659-DWF-JJK Document 982 Filed 07/17/15 Page 3 of 5
d. The above paragraph shall be replaced with the following paragraphs:
You may also be barred from bringing or participating in any lawsuit against the Defendants in state court for relief on the State Law Claims.
You may still bring these or similar claims against the Defendants involving future conduct (that is conduct that occurs from the date of Dismissal with Prejudice going forward).
e. The following paragraph, which appears on pages 5 and 6 of Plaintiffs’
proposed notice, shall be deleted from the Notice disseminated to the class:
A trial was held in February and March of 2015 on certain claims brought by Plaintiffs, which did not include the State Law Claims. After the trial of these certain claims, the Court ruled that the Minnesota Civil Commitment and Treatment Act is unconstitutional on its face and as it is applied by Defendants. The trial did not include the State Law Claims and the Court did not rule on the merits of those State Law Claims as a result of the trial.
f. The above paragraph shall be replaced with the following paragraph:
A trial was held in February and March of 2015 on certain claims brought by Plaintiffs, which included Counts I, II, III, IV, V, VI, VII, and XI. The Court ruled that the Minnesota Civil Commitment and Treatment Act is unconstitutional on its face and as it is applied by Defendants.
g. The following text, which appears on page 6 of Plaintiffs’ proposed
notice, shall be deleted from the Notice disseminated to the class:
On July 24, 2012, the Court certified the Class (for declaratory and injunctive relief) and appointed Gustafson Gluek, PLLC as Class Counsel.
h. The above text shall be replaced with the following text:
On July 24, 2012, the Court certified the Class and appointed Gustafson Gluek, PLLC as Class Counsel. The “Class” in this case is every individual civilly committed to MSOP.
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CASE 0:11-cv-03659-DWF-JJK Document 982 Filed 07/17/15 Page 4 of 5
i. The following text shall be added to the end of the second paragraph on
page 7 of Plaintiffs’ proposed notice:
You may also be barred from bringing these claims against the Defendants in state court.
j. The following paragraph, which appears on page 7 of Plaintiffs’
proposed notice, shall be deleted from the Notice disseminated to the class:
The Dismissal with Prejudice may or may not affect your right to individually bring the State Law Claims against these Defendants in state court for damages, injunctive relief, or declaratory relief. Subject to any defenses that Defendants may raise (including for example, this Dismissal with Prejudice or the statute of limitations), you may or may not be able to pursue individual (as opposed to Class) State Law Claims in state court for damages and/or injunctive and declaratory relief. Whether the Dismissal with Prejudice affects your rights to bring these State Law Claims will be decided by the judge in the state court if you decide individually to bring these State Law Claims against these Defendants. Regardless of how the state court decides these past State Law Claims, you may still bring these or similar claims against the Defendants involving future conduct (that is conduct that occurs from the date of Dismissal with Prejudice going forward).
k. The above paragraph shall be replaced with the following paragraph:
The Dismissal with Prejudice will not affect your right to bring these or similar claims against the Defendants involving future conduct (that is conduct that occurs from the date of Dismissal with Prejudice going forward).
l. The following text, which appears on page 10 of Plaintiffs’ proposed
notice, shall be deleted from the Notice disseminated to the class:
You may or may not also be barred from bringing a lawsuit against these Defendants for the State Law Claims in state court.
4

CASE 0:11-cv-03659-DWF-JJK Document 982 Filed 07/17/15 Page 5 of 5

m. The above text shall be replaced with the following text:

You may also be barred from bringing or participating in any lawsuit against the Defendants in state court for relief on the State Law Claims.

n. The following paragraph shall be added at the end of page 11 of

Plaintiffs’ proposed notice:

Please do not contact the Court. Any questions regarding the Dismissal with Prejudice or this Notice should be directed to the Class Counsel listed above.

2. As directed in this Court’s June 17, 2015 Order (Doc. No. 967), Counsel for

Plaintiffs shall disseminate this Notice to the class members by mail by July 20, 2015.

Dated: July 17, 2015

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

5

 
 CASE 0:11-cv-03659-DWF-JJK Document 1021 Filed 09/14/15 Page 1 of 20

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

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 and Brian K. Hausfeld,
Plaintiffs, v.

Court File No. 11‐CV‐03659 (DWF/JJK)
BRIEF OF AMICI CURIAE ERIC S. JANUS AND ACLU‐MN

Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Nancy Johnston, Janine Hebert, and Ann Zimmerman, in their individual and official capacities,

Defendants.

I. Introduction This Court has found that the State of Minnesota has, through two decades of persistent administrative and judicial action and inaction, converted a statutory system of civil confinement into an unconstitutional complex of indefinite confinement, infected through and through by the forbidden purpose of punishment.
The overwhelming evidence at trial established that Minnesota’s civil commitment scheme is a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.
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Karsjens v. Jesson, 2015 WL 3755870, at *2 (D. Minn. June 17, 2015) motion to certify appeal denied, 2015 WL 4478972 (D. Minn. July 22, 2015).
A complex system, MSOP’s unconstitutionality has been born of many parents, with diverse motivations and politics. But the singular result is the unconstitutional confinement of hundreds of human beings. In the end, the Court’s remedial efforts should focus on the termination of that illegal deprivation of liberty; how that end is achieved is important, but the means will be rendered nugatory without strict accountability for the end result.
II. Aligning the Minnesota Sex Offender Program to constitutional mandates necessitates remedies that are designed to ensure that the state has purged itself of the program’s “forbidden purpose.”
Foundational to the Court’s decision in this case is the principle that the MSOP scheme is constitutional only insofar as it is a bona fide civil commitment system. In a bona fide commitment scheme, the state may not have the “forbidden purpose” of punishment. Kansas v. Hendricks, 521 U.S. 346, 371 (1997) (Kennedy, J., concurring). In Hendricks, the Supreme Court called this the “threshold” matter in determining constitutional validity. Id. at 361‐2. And the Hendricks court made it clear that the “punitive purpose” inquiry begins with the state’s “disavow[al of] any punitive intent,” but does not end there. Id. at 368.
Where the State has “disavowed any punitive intent”; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from
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the general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired, we cannot say that it acted with punitive intent. Id. at 368‐369.
In its decision, this Court has found repeatedly that the purpose that is required for the bona fides of a civil commitment system has been negated by the past two decades of executive and judicial implementation of the MSOP system. In both its design and its application, the Court has found, MSOP has “a punitive effect and application contrary to the purpose of civil commitment.” Karsjens, 2015 WL 3755870, at *27.
The State’s behavior over the past two decades has belied its espousals of a non‐ punitive purpose. The statutory procedures of the MSOP have not been sufficient to ensure the non‐punitive execution of this complex system.
At its core, the Court’s remedy should require the State (and Defendants) to purge itself of the forbidden purpose. The burden on the State should be heavy. The State must overcome two decades of persistent misapplication of a civil statute. Common sense dictates that recent and persistent past behavior is the best predictor of future behavior. The State must overcome the natural inference that it will continue to be guided by the forbidden purpose of punishment. For this reason, the kind of evidence that might have been appropriate to judge proper purpose ab initio –
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espousals in litigation documents and statutory preambles, and broad statutory language – cannot suffice to meet the State’s burden in this posture. The Court should insist on more concrete and pointed changes to satisfy itself that the State’s improper purpose has been purged.
III. Evidence of reformed purpose must be substantive, not just procedural. Remedies that are strictly process‐oriented cannot suffice to satisfy the State’s burden. Substantive remedies – specifically addressing the number of people under confinement and the specific risk‐levels that justify preventive detention – are necessary. Process remedies, such as mandated risk assessments, changes in petitioning practices, and the development of less restrictive alternatives – are certainly necessary. But the State’s persistent two‐decades of “slow‐walking” the procedural protections that were theoretically already in the law demonstrates that proper process is not sufficient to guarantee a non‐punitive purpose. If the past two decades have proved anything, it is that procedural due process, standing alone, cannot protect against the subterfuge of an intent to punish. The MSOP is a complex system. It must be recalled, unfortunately, that the unconstitutional implementation of the State’s civil law has taken place under the constant scrutiny of the state courts and the highest levels of state government. The MSOP’s complexity means that multiple steps need to be taken in tandem, sequentially,
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and successfully to achieve the changes that are necessary to achieve constitutionality. Risk assessments must be done, but they must be done according to the highest professional standards. They must apply the correct legal standards, but these standards are nowhere articulated in statutory or case law. The judgments of professionals, which of necessity utilize professional nomenclature and categories, must be appropriately translated into the categories of the law. The legal categories must be properly articulated and applied. All of these processes must be supervised for their compliance with the law, and with constitutional standards. A breakdown at any stage of the process can effectively sabotage constitutional compliance.
The Court’s decision enumerates a series of breakdowns, particularly in the processes for insuring compliance with the durational limits on civil confinement. But fixing these processes – which will be difficult and complex – will not remove the vulnerability of the system from the pernicious effects of improper purpose. As we will demonstrate in the next section, holding the State accountable for the custody‐ reduction process will require the establishment of substantive risk‐standards and numerical population reduction benchmarks.
IV. The Flaws in the State’s Risk Assessment process require substantive benchmarks and standards.
The history of the MSOP system demonstrates that the process of risk‐threshold determinations, as it has developed in Minnesota, is the Achilles heel for the
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remediation of the broken MSOP system. Though major procedural changes are necessary (such as those recommended by the Plaintiffs), those changes can be rendered nugatory by the standardless, black‐box adjudication system that has evolved in the State. At the urging of the State, the Minnesota courts have created an opaque “black box” for judging dangerousness. The Minnesota courts have failed to provide any meaningful superintendence of the MSOP system, having developed a jurisprudence that insulates risk‐threshold decisions from review and accountability. Thus, Amici urge the Court to set substantive, as well as procedural, remedies. Only then will the Court be assured that the process changes are not being eroded by standardless, opaque decisions about risk.
Plaintiffs recommend that the State be required to petition the court for a reduction in custody, transfer or discharge for patients whose risk assessments demonstrate that they are not a high risk, thereby making their continued confinement to a secure treatment facility unconstitutional. Filing petitions in these circumstances is a critical first step to address their unconstitutional custody; however, it is just that – a first step. It does not necessarily follow that the judiciary will follow the state’s recommendations. And if the petition is denied, it does not guarantee that the state will continue to advocate for reduction in custody or discharge through an appeals process, or even that an appeal would be successful. And it does not insulate the process from the intense political pressures that have been brought to bear in the past. Thus, to
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ensure that the state no longer confines individuals who do not fit the criteria for civil commitment or who can be safely managed in the community, this court’s remedies must be designed to do more than oblige the state to initiate a petition for reduction in custody or discharge.
The Minnesota appellate courts have thus far failed to step in to address MSOP’s constitutional infirmities despite having over 400 opportunities to so. They have refused to consider a systemic challenge to the implementation of these laws by MSOP. In re Civil Commitment of Travis, 767 N.W.2d 52, 58 (Minn. Ct. App. 2009). And they have refused to set standards for judging what level of risk is sufficient for commitment. In re Civil Commitment of Ince, 847 N.W.2d 13, 21 (Minn. 2014)(declining to clarify the imprecise “highly likely” standard to mean that the state must demonstrate that it is substantially certain that future harmful sexual conduct will occur). They have, at almost every turn, removed impediments to commitment.
The appellate courts have played almost no role in assuring that only the “most dangerous” would be committed. Amici’s prior brief to this Court noted that, in over 400 sex offender civil commitment appellate cases, only six decisions resulted in the reversal of a judgment of commitment on the merits, and only one of those decisions happened in the last 20 years. (Brief of Amici Curiae Eric S. Janus and ACLU‐MN at 24‐25, Document #408). Since that December, 2013 filing the appellate courts have not
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reversed any more judgments of commitment on the merits, despite having considered approximately 50 more appeals.
In In re Civil Commitment of Ince, A12‐1691, 2013 WL 1092438 at *9 (Minn. Ct. App. Mar. 18, 2013)(Chief Judge Johnson concurring specially)(reversed and remanded 847 N.W.2d 13, 21 (Minn. 2014)), Chief Judge Johnson’s concurrence describes the failure of the Minnesota courts over nearly two decades to give any meaningful content to the standards for commitment. “The lack of a clear and definite legal standard is in tension with fundamental notions of the rule of law. A statute that may deprive a person of his or her liberty should have ‘an understandable meaning with legal standards that courts must enforce.’” Id. at *14 (Johnson, J., concurring) (quoting Giaccio v. Pennsylvania, 382 U.S. 399, 403 (1966)). He observed that the Minnesota courts had failed to set such standards: “Seventeen years after Linehan III, however, the precedential case‐by‐case determinations on this issue are too few in number and too general in their discussion.” Id. at *15.
And Judge Stauber, in dissent, points out that dangerousness testimony and district court findings are couched within “credibility assessments insulated from appellate review. Given this standard of review, it will continue to be almost impossible to overturn even borderline cases . . . .” Id. at *24 (Stauber, J., dissenting).
Despite the serious concerns expressed by two of the three judges on the panel, they nonetheless affirmed Ince’s civil commitment. Id. at *9. The Minnesota Supreme
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Court granted review of the case and was asked to provide clarification to the meaning of the imprecise “highly likely to engage in acts of harmful sexual conduct” by requiring the government to demonstrate that it is substantially certain that future harmful sexual conduct will occur. In re Civil Commitment of Ince, 847 N.W.2d 13, 21 (Minn. 2014). The Court declined to do so. Id. The Court was also asked to update the factors enunciated in Linehan I for assessing dangerousness in order to reflect up to date research on re‐ offending and guide courts in making an objective measurement of an individual's risk of re‐offense while avoiding the cumulative impact of double‐counting some factors used in multiple assessment approaches. Again, the Court declined to provide any much‐ needed clarity. Instead the Court chose to defer to the trial courts to decide how much weight to attribute to each of the Linehan factors, noting that, “[a]s the trier of fact, the district court will be in the best position to determine the weight to be attributed to each factor… “. Id at 23‐24.
Although the Court reversed and remanded the case to the District Court, the remand was specifically for the District Court to provide a clearer record and factual findings for appellate review. Id.at 24‐26. The Ince case is perhaps the clearest example of the persistent failure of Minnesota courts to ensure that only the “most dangerous” face commitment to MSOP.
The courts have even approved civil commitment of individuals who only pose a moderate and even low risk based on actuarial risk assessment instruments. See, e.g.,
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In re Commitment of Schmidt, No. A10‐1588, 2011 WL 781343, at *3 (Minn. Ct. App. Mar. 08, 2011) (approving commitment of an individual whose risk on the MnSOST‐R was below 50%); In re Lueck, No. A10‐18, 2010 WL 3744394, at *3 (Minn. Ct. App. Sept. 28, 2010) (approving commitment of individual with re‐offense risk of 19% on the STATIC‐99 risk assessment tool); In re Civil Commitment of Cermak, No. A09‐1080, 2009 WL 3736196, at *2 (Minn. Ct. App. Nov. 10, 2009) (approving commitment of person with score of 9 on MnSOST‐R); In re Commitment of Garza, No. A08‐0288, 2008 WL 2889700, at *4 (Minn. Ct. App. Jul. 29, 2008) (approving commitment of person with MnSOST‐R score of 2); In re Holden, 2001 WL 683004, at *4 (approving commitment of person whose MnSOST‐R score indicated a “low” risk of re‐offense).
Indeed, risk predictions need not be based on state‐of‐the‐art science, such as actuarial risk assessment instruments. See Linehan IV, 557 N.W.2d at 191 (“[D]angerousness prediction under the SDP Act is not simply a matter for statisticians.”). The courts have never subjected risk assessment testimony to any form of searching reliability review normally applied to expert or scientific testimony. See, e.g., In re Schultz, No. CX‐99‐1296, 1999 WL 1100941, at *5 (Minn. Ct. App. Nov. 30, 1999); In Matter of Martinelli, No. C6‐98‐569, 1998 WL 613845, at *6 (Minn. Ct. App. Sept. 15, 1998); Matter of Clements, 440 N.W.2d 133, 135‐36 (Minn. Ct. App. 1989) (all characterizing questions about expert's testimony as determinative of "weight” and “credibility," not admissibility). And the courts have never insisted that risk assessment
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testimony be presented in quantified form with information about error rates and confidence intervals. Thus, risk assessment decisions are largely subjective, relying on idiosyncratic judicial and expert definitions of "highly likely."
The Minnesota Court of Appeals has also foreclosed any type of scrutiny by District Courts into the widespread, systemic constitutional infirmities of the MSOP program. In In re Civil Commitment of Travis, 767 N.W.2d 52 (Minn. Ct. App. 2009), the Minnesota Court of Appeals had the opportunity to provide that scrutiny and definitively rejected the opportunity. The district court indicated its intention to examine the bona fides of the MSOP scheme:
It is alarming when one compares the current near zero “success” rates of the program with the fact that at least some of the earlier laws had eventually released as many as 50 percent of those committed. As a result, rather than being a “step away” from confinements for dangerousness alone, the actual implementation of the SDP/SPP laws suggest a regime of [preventive] detention itself, heretofore anathema to due process. Id. at 56 (quoting the district court’s order). The Court of Appeals queried whether the district court had authority to “examine substantive due process in a challenge to the constitutional purpose of civil commitment statutes by investigating treatment in practice and thus by studying the experiences of others.” Id. at 56‐57. The Court of Appeals unambiguously and authoritatively prohibited the district court from undertaking this critical examination.
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The end result has been that the people actually subjected to commitment to MSOP are not the “most dangerous” as is required of a constitutional civil commitment scheme. A 2013, study by Minnesota Department of Corrections researcher Grant Duwe came to a similar conclusion. The study endeavored to determine the profile of individuals who have been chosen for civil commitment in Minnesota.1 Duwe compared the likely recidivism rate for 105 civilly committed offenders had they not been committed, and the likely recidivism rate for offenders who were not civilly committed. Although the likely recidivism rate for civilly committed offenders would be slightly higher, he concluded that civilly committing those 105 offenders only resulted in a reduction of the state’s overall four‐year sexual recidivism rate of less than half of one percent (reduction from 3.2% to 2.8%). Id. at 6. Most importantly, the study concluded that “…nearly two‐thirds of these offenders would be unlikely to be rearrested for another sex offense in their lifetime if they were released to the community. In other words, for every true positive, there are likely two false positives.” Id. at 8. Applying this “false positive” rate to the 700‐plus people who have been committed, we can conclude that in its twenty‐year history the Minnesota courts have likely committed over 462 human beings who, had they been released, would not have been arrested for a new sex crime. In exchange, the program has likely reduced the overall rate of
1 Duwe, G., To what extent does civil commitment reduce sexual recidivism? Estimating the selective incapacitation effects in Minnesota, Journal of Criminal Justice (2013), available at http://dx.doi.org/10.1016/j.jcrimjus.2013.06.009 . Nelson Declaration, Exhibit 1.
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recidivism in Minnesota by only 0.4%. While every reduction in sexual violence is
desirable, a reduction in sexual recidivism of 0.4% can hardly support the conclusion
that only a narrow group of the “most dangerous” is being civilly committed.
Even when the Department of Human Services has been willing to support the
eventual release of an offender, that decision is accompanied by tremendous political
backlash. Take, for example, the case of Thomas Duvall. In August, 2013, the Special
Review Board recommended Duvall’s conditional release and that decision was initially supported by both Commissioner Jesson and Governor Dayton.2 Soon after, though,
Attorney General Swanson announced her vehement opposition to Duvall’s release and moved to block it.3 By early November, 2013, the case had become a political football
and neither the Department of Human Services nor the Hennepin County Attorney’s
office opposed AG Swanson’s motion to the Supreme Court Appeals Panel for a formal public hearing on whether to grant Duvall’s conditional release.4 Fearing that the issue
would be used in the upcoming governor’s race, Governor Dayton ordered DHS
Commissioner Jesson to suspend provisional releases from the MSOP until concerns about its constitutionality could be addressed by the Legislature.5 Governor Dayton
2 Brad Schrade, Minnesota recommends release of two repeat sex offenders, STAR TRIB., Aug. 20, 2013, (available online at http://www.startribune.com/aug-20-state-recommends-release-of-2-sex-offenders/220291461/). 3 Paul McEnroe, Minnesota attorney general tries to block release of serial rapist, STAR TRIB., NOV. 3, 2013 (available online at http://www.startribune.com/nov-3-minn-ag-tries-to-block-release-of-serialrapist/230366301/?c=y&page=1). 4Chris Serres, Sex offender's case appears headed for public hearing, STAR TRIB., Nov. 8, 2013 (available online at http://www.startribune.com/sex-offender-s-case-appears-headed-for-public-hearing/231239981/). 5 Briana Bierschbach, Dayton wants to temporarily suspend provisional release of sex offenders, POLITICS IN MINNESOTA: CAPITOL REPORT, Nov. 13, 2013, (available online at http://politicsinminnesota.com/2013/11/daytonwants-to-suspend-provisional-release-of-sex-offenders/).
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justified his order at a news conference, stating, “The political partisanship made it clear this was going to be an issue seized upon and abused. We just can’t proceed in that kind of environment.” Id. By the following September, both Commissioner Jesson and the Hennepin County Attorney’s reversed their position and opposed Duvall’s conditional release and Duvall withdrew his petition.6
Given the Minnesota judiciary’s institutional failure to address MSOP’s constitutional infirmities and the intense political gamesmanship that surrounds even the possibility that an offender will be released, Amici urge this Court’s to impose remedies that do more than ensure Petitions for reductions in custody, transfer and discharge are filed and litigated in good faith and are given meaningful consideration. In addition to these procedural reforms, we urge the Court to create benchmarks for the state to meet and require a regular independent review of all petitions filed, the outcome of those petitions and any subsequent appeals and a report on whether or not those benchmarks have been met, and whether or not the process has resulted in the release of individuals who can no longer be constitutionally confined to a secure treatment facility. As we describe more fully below, the benchmarks should be tied to the commitment and confinement rates of best‐practice states such as Wisconsin and New York.
6 John Collins, Serial rapist withdraws petition for release, MPR NEWS, Sept. 16, 2014, (available online at http://www.mprnews.org/story/2014/09/16/sex-offender-release-petition-withdrawn).
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V. Legislative inaction should not be a barrier to implementing the remedies ordered by the Court
The Legislature has had ample opportunities to address the glaring problems with MSOP and they have so far failed to do so. Even in the face of a Federal Court Order declaring the program unconstitutional, Legislative leaders have not stepped up to remedy the constitutional infirmities.7
During the 2013 Legislative session, there was some movement on a bill that would have required evaluations of each person civilly committed, the creation of a specific treatment and intensive supervision plan and biennial reviews of adherence to the plan and presentation before a judicial appeals panel for potential release. Senate File 1014 passed the Minnesota Senate on May 14, 2013 and was referred to the House for consideration where it languished without any action. SF 1014 Status in the Senate for the 88th Legislature (2013 ‐ 2014).8 Reform bills introduced in the 2014 and 2015 sessions did not move out of committees in either body. Changes the Legislature did make in 2013 were largely cosmetic. See 2013 Laws of Minnesota, Ch. 49 §9 (recodifying and combining SPP and SDP sections).
7 Briana Bierschbach, Nobody is in a rush to fix Minnesota's sex offender program, MinnPost, Aug. 11, 2015 (available online at https://www.minnpost.com/politics-policy/2015/08/nobody-rush-fix-minnesotas-sex-offenderprogram). The Legislature also ignored previous urgent recommendations for reform including a 2011 Legislative Auditor’s report (Office of the Legislative Auditor, State of Minnesota, Evaluation Report: Civil Commitment of Sex Offenders (March 2011), available at http://www.auditor.leg.state.mn.us/ped/pedrep/ccso.pdf) and the unequivocal recommendations of the Task Force appointed by this Court. 8available online at https://www.revisor.mn.gov/bills/bill.php?b=Senate&f=SF1014&ssn=0&y=2013.
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There is strong evidence that the legislature’s failure to act reflects an intentional
and knowing abdication of constitutional duties. In response to this Court’s February
2014 ruling allowing the case to move forward, Representative Cornish reacted with the
query, “Why would any legislator touch this issue? Are you that worried about the civil
rights of sex offenders? I admit it, I don’t have the courage to have a sex offender
released in my hometown.”9 Representative Cornish is also on record stating his
preference to wait until the court forces the State to act.10 In a 2015 William Mitchell
Law Review Article, Senator Kathy Sheran provided important insight into why the
legislature is intentionally abdicating its constitutional duties.
Legislators know of this public anxiety [surrounding the release of sex offenders] and will avoid a vote that could be manipulated in a future election. This is a failure on the part of legislators to honor their oath of office to act in a manner that upholds the constitutional rights of all people, including sex offenders. It is a decision to place self‐preservation ahead of the rights of the 700 persons currently civilly committed. The public will not confront this legislative inaction, because they share the desire to maintain their sense of safety at the expense of others' rights. Senator Kathy Sheran, MSOP: A Minnesota State Senator's Perspective, 41 Wm. Mitchell L. Rev. 689, 695 (2015).
Amici agree with Plaintiffs’ position that, at the core, the issue is the
constitutionality of the confinement and that confinement is being carried out by the
Defendants. It matters not whether the unconstitutional conditions are caused directly
9 Chris Serres, Federal judge questions legality of Minnesota's sex offender program, STAR TRIB., Feb 20, 2014 (available online at http://www.startribune.com/judge-orders-reforms-of-minnesota-s-sex-offenderprogram/246389931/). 10 See e.g. Trisha Volpe, Trial may bring changes to sex offender program, MPR NEWS, Feb. 9, 2015 (available online at http://www.mprnews.org/story/2015/02/06/court-case-changes-sex-offender-program).
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by Defendants or by the overall state government’s failure to remedy the unconstitutionality through the legislative and judicial process. Defendants are effectuating and are therefore responsible for the unconstitutional confinement and can be ordered to end it. The Defendants have been sued in both their individual and official capacities. It is well settled that official capacity claims are claims against the entity (in this case, the State of Minnesota) rather than simply the individual named defendants. Kentucky v. Graham, 473 U.S. 159, 165‐66 (1985) citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55(1978).
Past experience provides strong evidence that the legislature will continue to shirk its responsibility, and that there is a high likelihood of continued unconstitutionality. This legislative intransigence should not be a barrier to reform and the Court should spell out the ultimate remedies for non‐compliance. The ultimate remedies cannot be limited to contempt. The State has demonstrated that monetary considerations are immaterial when it comes to the perpetuation of its punitive version of MSOP. And imprisonment of the Defendants is not a realistic or fair remedy for the intransigence of the political leaders of the state.
VI. Remedies imposed by the Court should include substantive benchmarks and standards, as well as a timetable for compliance and sanctions for non‐compliance.
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Even if the state complies with a court mandate to perform risk assessments, petition for reduction in custody, and provide timely adjudications, the unfortunate fact remains that there is no clearly articulated standard for commitment – and therefore, no clearly articulated standard for reduction in custody. Past history shows clearly that the Minnesota Courts will not develop or apply such standards. Without such standards, there is copious room for undercutting even the best risk‐assessments; state‐ adjudications that lack articulable standards will not provide a remedy for the unconstitutionality of the MSOP system.
For these reasons, Amici urge the court to go beyond procedures and order substantive change so that the impact on the excessive population of MSOP can be directly measured. We recommend substantive remedies along two lines.
First, we urge the court to set benchmarks for the reduction of the population under commitment, and the movement of substantial numbers of clients into lower levels of supervision and custody. The Court should require the State to reduce the number of confined individuals to a number derived from a comparison with the best‐ practice states of Wisconsin and New York. The court should set a timeline for a full reduction, and intermediate benchmarks for partial reductions. We suggest that two years is ample for the complete reduction.
A second line of substantive remedies should require the State to articulate actionable and reviewable standards for the risk‐threshold justifying confinement. The
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current state articulation – “highly likely” – clearly is not adequate, especially given the absolute insulation from appellate review of these judicial determinations. The State should set out exactly how the risk‐assessors are to judge whether an individual’s level of risk is sufficient for confinement under the MSOP regime.
Finally, we believe that the only truly effective remedy may be the possibility of shutting down the MSOP system. The complexity of the MSOP system means that multiple actors, including courts and legislators, are required to fix the decades‐in‐the‐ making catastrophe that is MSOP. Yet those actors are not directly under this Court’s jurisdiction. Nonetheless, the consequences of the legislative and state‐judicial roles – which is the unconstitutionality of confinement – is directly within this Court’s control. In the end, the only power the Court will have to deal with recalcitrant political leaders and standardless state court adjudications, is to enjoin the operation of the program. We urge the Court to make this eventuality plain.
VII. Conclusion Though years in the making, and caused by multiple actions and failures to act, the unconstitutionality of the MSOP complex boils down to a singular wrong: the illegal and irreparable confinement of human beings. Over two decades, the State has developed, and tolerated, entrenched practices to prolong confinement and neuter due process, all in service to a punitive purpose whose forbidden presence deprives the entire system of its legitimacy. We urge the Court to focus its remedies not only on the
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practices and processes, but also on the end results in terms of human confinement. If

the State, within a reasonable period, does not demonstrate that it has purged itself of

the forbidden purpose of punishment, and cleansed the MSOP complex of the decades‐

long fruits of its illegal purpose, the Court should close MSOP.

DATED: September 14, 2015

_s/Eric s. Janus______________ Eric S. Janus (ID #49700) 875 Summit Avenue St. Paul, MN 55105 651‐290‐6310

Teresa Nelson #269736 American Civil Liberties Union of Minnesota 2300 Myrtle Ave, Suite 180 St Paul, MN 55114‐1879 651 645‐4097

Attorneys for Amici Curiae

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 CASE 0:11-cv-03659-DWF-JJK Document 516 Filed 06/27/14 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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) ORDER

E.T.,
Petitioner,
v.
Lucinda Jesson, Commissioner of the Minnesota Department of Human Services,
Respondent.

R.B.,

Petitioner,

Civil No. 14-2002 (DWF/JJK) Civil No. 14-2362 (DWF/JJK)

CASE 0:11-cv-03659-DWF-JJK Document 516 Filed 06/27/14 Page 2 of 5
v. Lucinda Jesson, Commissioner of the Minnesota Department of Human Services,
Respondent.
These matters are before the Court following a show cause hearing in the above-captioned class action and on petitions for habeas corpus filed by E.T. and R.B.
On May 18, 2014, the Rule 706 experts unanimously recommended that E.T. “be unconditionally discharged from MSOP.” (Doc. No. 468, Ex. 1 at 4.) On June 2, 2014, the Court ordered Defendants to show cause why E.T.’s continued confinement is not unconstitutional and why E.T. should not be immediately and unconditionally released from MSOP. (Doc. No. 468 at 4.) In a report dated June 4, 2014, the experts recommended that R.B. be transferred or provisionally discharged from MSOP “to a supervised treatment setting that can meet her special needs for treatment (e.g., sexual offending, personal victimization, trauma, mental health maintenance) that is gender responsive, trauma informed, and that provides for socialization opportunities and relationship development with other women.” (Doc. No. 481, Gustafson Decl. ¶ 3, Ex. A at 1.)
On June 4, 2014, Plaintiffs filed a motion seeking, in part, to immediately discharge E.T. from civil commitment. (Doc. No. 469.) Plaintiffs then filed a Motion to Immediately Transfer R.B. to an Appropriate Treatment Facility on June 9, 2014. (Doc. No. 478.) On June 25, 2014, the Court held a hearing pursuant to the order to show cause
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and on Plaintiffs’ motions regarding E.T. and R.B. Consistent with the Court’s remarks from the bench, the Court sets an evidentiary hearing in the above-captioned matters and enters the following Order.
ORDER Based upon the foregoing, and the files, records, and proceedings herein, IT IS HEREBY ORDERED that: 1. An evidentiary hearing in the above-captioned matters shall be held on July 14-15, 2014. The hearing shall commence at 9:00 a.m. on July 14, 2014 in Courtroom 7C, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota. 2. All individuals who have issued reports regarding E.T. and R.B. in these matters shall be present to offer testimony at the hearing, unless otherwise agreed upon by the parties and approved by the Court. 3. Given that the relevant professionals have issued formal reports, which have been scrupulously reviewed by the parties, that those individuals (including the Court-appointed experts) will be available for extensive examination and cross-examination at the hearing, that counsel are well-versed in the relevant matters, and “in light of the desirability of reasonably limiting the demands to be made on the . . . experts’ time,” as well as the Court’s discretion to manage the discovery process to minimize expense, delay, and waste, the inability of a party to depose any expert shall not serve as a basis for continuance of the evidentiary hearing. See NEC Corp. v. Hyundai Elecs. Indus. Co., Ltd., 30 F. Supp. 2d 546, 561 n.3; see also Smith v. Armontrout, 604
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F. Supp. 840 (W.D. Mo. 1985) (discovery via evidentiary hearing following submission of 706 expert’s report).
4. The Court notes that formal depositions of the experts appear to be entirely unnecessary in this matter, and that pre-hearing depositions of any kind may be superfluous in light of the reports that have been issued. The parties may very well waive the right to depose under Rule 706 and consent to questioning all of the professionals for the first time at the July 14 hearing. Nevertheless, to the extent the parties seek to informally discuss the relevant reports with the experts, such depositions will be permitted. See Joe S. Cecil & Thomas E. Willging, Federal Judicial Center, CourtAppointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706, 93 n.220 (1993) (finding “formal depositions of appointed experts . . . to be infrequent, although on occasion an appointed expert [meets] informally with the parties to discuss the report”). The parties are instructed, however, that any such questioning shall be strictly limited in duration and scope and that the Court will not require the inquiries to be conducted in person.
5. Defendants/Respondent shall provide any applicable notice required by Minnesota statute on or before July 2, 2014.
6. To the extent necessary, limited discovery will be permitted and shall be completed by July 7, 2014.
7. The parties shall file their respective witness and exhibit lists on or before July 10, 2014.
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8. Respondent shall file an answer to each habeas petition, showing cause why the requested writs should not be granted. Respondent’s answers shall fully comply with the requirements of Rules 5(b), (c) and (d) of the Rules Governing Section 2254 Cases in the United States District Courts. The answers shall be filed with the Court on or before July 7, 2014, and a copy of the answers shall be served upon Petitioners simultaneously with such filing.
9. Petitioners shall file their replies to the answers on or before July 10, 2014.

Dated: June 27, 2014

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

5

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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 official capacities,
Defendants.

Civil No. 11-3659 (DWF/JJK) ORDER

Daniel E. Gustafson, Esq., Karla M. Gluek, Esq., David A. Goodwin, Esq., Raina Borrelli, Esq., Lucia G. Massopust, Esq., and Eric S. Taubel, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.
Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Adam H. Welle, and Aaron Winter, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for Defendants.

INTRODUCTION This matter is before the Court on Plaintiffs’ Motion to Dismiss Counts IV, XI, XII, and XIII of the Third Amended Complaint Without Prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure. (Doc. No. 925.)

DISCUSSION I. Voluntary Dismissals Under Rule 41(a)(2)
Rule 41(a)(2) authorizes voluntary dismissals “on terms that the court considers proper” after a defendant has served its answer. Fed. R. Civ. P. 41(a)(2). “[A] dismissal pursuant to Rule 41(a)(2) is not one of right but is rather a matter for the discretion of the trial court.” Great Rivers Coop. of SE Iowa v. Farmland Indus., Inc., 198 F.3d 685, 689 (8th Cir. 1999). In ruling on a Rule 41(a)(2) motion, a district court considers “whether the party has presented a proper explanation for its desire to dismiss; whether a dismissal would result in a waste of judicial time and effort; and whether a dismissal will prejudice the defendants.” Mullen v. Heinkel Filtering Sys., Inc., 770 F.3d 724, 727 (8th Cir. 2014); see also Hamm v. Rhone-Poulenc Rorer Pharms., Inc., 187 F.3d 941, 950 (8th Cir. 1999) (internal citations omitted).
If a court determines that a dismissal without any terms or conditions will prejudice defendants, it is within the discretion of the court to grant the motion and attach conditions that cure the prejudice. See Ortega Trujillo v. Banco Central Del Ecuador, 379 F.3d 1298, 1301 (11th Cir. 2004) (citing Yoffe v. Keller Ind., Inc., 580 F.2d 126, 129 (5th Cir. 1978)); Ratkovich v. Smith Kline, 951 F.2d 155, 158 (7th Cir. 1991). “Rule 41(a)(2) clearly provides authority to the district court to grant the dismissal on the condition that it be with prejudice.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 320 (5th Cir. 2002); see also Jaramillo v. Burkhart, 59 F.3d 78, 79 (8th Cir. 1995) (“Rule 41(a)(2) implicitly permits the district court to dismiss an action with prejudice in response to a plaintiff’s motion for dismissal without prejudice.”). “If the court chooses
2

to craft conditions, the plaintiff must be given an opportunity to withdraw its motion to dismiss rather than accept those conditions.” BriovaRx, LLC v. Savedra, Civ. No. H-13-3056, 2015 WL 769741, at *2 (S.D. Tex. Feb. 20, 2015) (internal citations omitted); see also Jaramillo, 59 F.3d at 79 (“When a plaintiff requests dismissal without prejudice and the district court intends to dismiss with prejudice, however, the district court must give the plaintiff notice of its intention and a chance to withdraw the request.”) (internal citations omitted). Failure to timely withdraw a motion shall constitute a binding election to accept the condition of dismissal with prejudice. See Mortg. Guar. Ins. Corp. v. Richard Carlyon Co., 904 F.2d 298, 301-02 (5th Cir. 1990); Unioil, Inc. v. E.F. Hutton & Co., 809 F.2d 548, 555 (9th Cir. 1986).
Plaintiffs contend that they are entitled to dismissal of Counts IV, XI, XII, and XIII without prejudice because: (1) these claims “add little, if anything, to Plaintiffs’ basis for future injunctive relief”; (2) granting dismissal “will conserve judicial resources because the pending appeal would be rendered moot and these claims would not require further litigation in this Court”; and (3) granting dismissal will not prejudice Defendants because “[t]hese counts have never been central to Plaintiffs’ case, and Defendants have not expended significant time and effort, if any, preparing to defend these claims” and “dismissal now will actually aid Defendants as it makes any future proceedings in phase two less likely and Defendants will no longer have to appeal or defend these claims.” (Doc. No. 927 at 6, 8.)
Defendants do not object to the dismissal of Counts IV, XI, XII, and XIII. (Doc. No. 961 at 2.) However, Defendants oppose Plaintiffs’ motion on the grounds that the
3

counts should be dismissed with prejudice because “a dismissal without prejudice at this late stage will undoubtedly prejudice Defendants.” (Id. at 4, 11.)
In light of the parties’ agreement that Counts IV, XI, XII, and XIII should be dismissed, the Court concludes that Plaintiffs’ motion should be granted insofar as those counts should be dismissed from the pending litigation. However, in consideration of the status of this case and the significant time and effort that the parties and the Court have exerted in this matter, and the likelihood that Defendants would face future litigation, the Court determines that a dismissal without any conditions will unfairly prejudice Defendants. Therefore, the Court agrees with Defendants that dismissal with prejudice is an appropriate Rule 41(a)(2) condition. However, because Plaintiffs are entitled to notice of the Court’s intention, and a chance to withdraw their voluntary dismissal motion, Plaintiffs may refuse the Court’s Rule 41(a)(2) dismissal condition and withdraw their Rule 41(a)(2) motion. See United States v. One Tract of Real Property, 95 F.3d 422, 425-26 (6th Cir. 1996); Jaramillo, 59 F.3d at 79. II. Class Notice Under Rule 23(e)
Because this is a class action, the Court must determine whether the requirements of Rule 23(e) apply to Plaintiffs’ motion for voluntary dismissal. See Fed. R. Civ. P. 23(e) (“A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such a manner as the court directs.”). Rule 41(a)(2) provides that “[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order,” and Rule 41(a)(1) begins with an introductory clause noting
4

that it is “[s]ubject to Rule 23(e).” Fed. R. Civ. P. 41(a)(1)-(2). Although Rule 41(a)(1), by its plain terms, protects plaintiff class members by subjecting the litigants to the requirements of Rule 23(e), Rule 41(a)(2) is less clear. Courts are divided as to whether the phrase “subject to Rule 23(e)” in Rule 41(a)(1) means that the Rule 23(e) requirements are imputed to the provisions of Rule 41(a)(1), and whether the clause “[e]xcept as provided in Rule 41(a)(1)” in Rule 41(a)(2) implicates the Rule 23(e) requirements. Compare Dixon v. Miller, 599 F. Supp. 395, 396 (N.D. Ill. 1984) (granting plaintiffs’ Rule 41(a)(2) motion after providing notice to classes and holding a fairness hearing), with Catherwood v. Portland Gen. Corp., Civ. No. 92-23-JE, 1992 WL 226930 at *2 (D. Or. June 24, 1992) (granting Rule 41(a)(2) dismissal, but concluding that no Rule 23(e) notice to class was necessary where absent class members would suffer no prejudice).
In light of the fact that a dismissal with prejudice constitutes a rejection of the claims on the merits, and considering the significant stakes underlying this dispute, the Court finds that Plaintiffs’ Rule 41(a)(2) motion is within the ambit of Rule 23(e) and therefore requires Court approval and appropriate notice.
ORDER Based upon the foregoing, and the files, record, and proceedings herein, IT IS HEREBY ORDERED that: 1. The Court intends to grant Plaintiffs’ Motion to Dismiss Counts IV, XI, XII, and XIII of the Third Amended Complaint Without Prejudice (Doc. No. [925]) on the condition that the motion be dismissed with prejudice.
5

2. Plaintiffs may refuse the Court’s Rule 41(a)(2) dismissal condition and withdraw their motion on or before June 26, 2015. Failure to timely withdraw the motion shall constitute a binding election to accept the condition of dismissal with prejudice.
3. Pursuant to Rule 23(e), if the Rule 41(a)(2) motion is not withdrawn, the Court will hold a fairness hearing on the dismissal of Counts IV, XI, XII, and XIII on August 10, 2015, at 2:00 p.m., in Courtroom 7C, 7th Floor, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota.
4. Counsel for Plaintiffs is directed to give notice of the hearing and the proposed dismissal to the class members by mail on or before July 20, 2015. The parties shall negotiate the content of the class notice and shall submit a joint proposed notice to the Court on or before July 8, 2015. If the parties are unable to agree on the content of the notice, the parties shall each submit a proposed notice, together with briefing not to exceed ten pages per party, on or before July 13, 2015.

Dated: June 17, 2015

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

6

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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 official capacities,
Defendants.

Civil No. 11-3659 (DWF/JJK)
MEMORANDUM OPINION AND ORDER

Daniel E. Gustafson, Esq., Karla M. Gluek, Esq., David A. Goodwin, Esq., Raina Borrelli, Esq., Lucia G. Massopust, Esq., and Eric S. Taubel, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.
Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Adam H. Welle, and Aaron Winter, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for Defendants.

INTRODUCTION This matter is before the Court on Defendants’ request for certification of appeal pursuant to 28 U.S.C. § 1292(b) or, alternatively, Federal Rule of Civil Procedure 54(b). (See Doc. No. 973.) For the reasons set forth below, the Court denies Defendants’ request.

BACKGROUND Defendants filed the present request for certification in response to the Court’s Findings of Fact, Conclusions of Law, and Order (Doc. No. 966), filed on June 17, 2015, in which the Court granted Plaintiffs’ request for declaratory relief with respect to Counts I and II of their Third Amended Complaint (Doc. No. 635). Defendants seek review of at least the following issues: (1) the Court’s determination that the strict scrutiny standard of review applies to Plaintiffs’ claims; (2) the Court’s determination that strict scrutiny requires a continuum of less restrictive alternatives for civilly committed individuals confined at the Minnesota Sex Offender Program (“MSOP”); and (3) the Court’s determination that civilly committed individuals are being unconstitutionally detained at the MSOP. (See Doc. No. 973.) Defendants now ask the Court to certify its June 17, 2015 Order for interlocutory appeal under 28 U.S.C. § 1292(b) or, alternatively, under Rule 54(b).
DISCUSSION I. Certification Under 28 U.S.C. § 1292(b)
Defendants first request that the Court certify its June 17, 2015 Order under 28 U.S.C. § 1292(b). 28 U.S.C. § 1292(b) provides that:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. 28 U.S.C. § 1292(b). “Section 1292(b) establishes three criteria for certification: the district court must be of the opinion that (1) the order involves a controlling question of law; (2) there is substantial ground for difference of opinion; and (3) certification will materially
2

advance the ultimate termination of the litigation.” White v. Nix, 43 F.3d 374, 377 (8th Cir. 1994) (internal quotations omitted). The party requesting certification “bears the heavy burden of demonstrating that the case is an exceptional one in which immediate appeal is warranted.” Id. at 376. “Permission to allow interlocutory appeals should []be granted sparingly and with discrimination” due to the additional burdens that such appeals place on both the courts and the litigants. Union Cnty. v. Piper Jaffray & Co., 525 F.3d 643, 646 (8th Cir. 2008) (quoting White, 43 F.3d at 376).
Although the parties do not dispute that the first statutory requirement is satisfied because the Court’s June 17, 2015 Order involves a “controlling question of law,” the parties strongly dispute whether the remaining criteria for certification are satisfied. Defendants argue that with respect to the second statutory requirement, “there is a substantial ground for difference of opinion” on the “novel legal theory that strict scrutiny applies in these circumstances, or that it is permissible to hold in a § 1983 action that state civil committees are being unconstitutionally detained.” (Doc. No. 973 at 6.) Plaintiffs, on the other hand, argue that “Defendants have []failed to demonstrate that there is a ‘substantial ground for difference of opinion’ on a controlling question of law.” (Doc. No. 975 at 4.) Plaintiffs assert that the cases that Defendant relies upon to support its argument are distinguishable and are not controlling in this matter because those cases did not address whether an entire system of civil commitment is constitutional, as is the case here. (See id. at 4-5.) In addition, Plaintiffs assert that “[i]t is simply wrong to suggest that the Supreme Court has not clearly found that civil commitment constitutes a significant deprivation of liberty and thus affects a fundamental liberty right.” (See id. at 5 (internal
3

citations omitted).) Plaintiffs further argue that “the lack of cases addressing due process concerns in sex offender civil commitment systems simply does not create a ‘substantial ground for difference of opinion.’” (Id. at 5-6 (citations omitted).)
The Court finds that certification under 28 U.S.C. § 1292(b) is improper because the requisite statutory certification requirements have not been met. Even assuming that the first criterion for certification is satisfied, as both parties appear to agree, the Court finds that the second criterion cannot be satisfied because there is no substantial ground for difference of opinion. See White, 43 F.3d at 378. “[A] ‘dearth of cases’ does not constitute ‘substantial ground for difference of opinion.’” Union Cnty., 525 F.3d at 647 (quoting White, 43 F.3d at 378). As Plaintiffs correctly observe, the fact that other courts have yet to address the systemic issues identified above with respect to the civil commitment of sex offenders does not mean that the applicable legal standard is unclear. (See Doc. No. 972 at 10.) Contrary to their assertions, Defendants have presented no case directly addressing the constitutionality of the civil commitment statutory scheme in the context of a systemic challenge; the constitutionality of the statute’s failure to require regular risk assessments to determine whether committed individuals continue to meet the criteria for commitment; or constitutionality of the statute’s failure to require the MSOP to initiate the petitioning process when it is aware that a committed individual likely meets the statutory discharge criteria. Moreover, the United States Supreme Court and Minnesota Supreme Court cases referenced in the Court’s June 17, 2015 Order clearly establish that freedom from physical restraint, including in a civil commitment context, is a fundamental right, and therefore, strict scrutiny applies. (See Doc. No. 966 at 53-54 (citing Foucha v. United States, 504 U.S.
4

71, 80 (1992); Jones v. United States, 463 U.S. 354, 361 (1983); Cooper v. Oklahoma, 517
U.S. 348, 368-69 (1996); Reno v. Flores, 507 U.S. 292, 316 (1993) (O’Connor, J.,
concurring); Vitek v. Jones, 445 U.S. 480, 492 (1980); In re Blodgett, 510 N.W.2d 910, 914
(Minn. 1994).) Therefore, the Court concludes that there is “no substantial ground for
difference of opinion” and, as such, the second statutory criterion for certification has not been satisfied.1 See Union Cnty., 525 F.3d at 647. Because Defendants cannot meet their
“heavy burden of demonstrating that the case is an exceptional one in which immediate
appeal is warranted” under 28 U.S.C. § 1292(b), Defendants’ request for certification under
28 U.S.C. § 1292(b) is denied. See White, 43 F.3d at 377.
II. Certification Under Rule 54(b)
Defendants alternatively ask the Court to certify its June 17, 2015 Order for appeal
under Rule 54(b). Rule 54(b) provides that:
When an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.
Fed. R. Civ. P. 54(b). “[I]nterlocutory appeals under Rule 54(b) are ‘generally disfavored.’”
1 Moreover, even assuming that the first and second criteria can be met, the Court finds that the third criterion cannot be satisfied because the Remedies Phase will begin soon, so there will be no delay in proceedings, and it may be that the Remedies Phase, including the pre-hearing conference discussions, will “materially advance” the termination of the litigation. See White, 43 F.3d at 377 (internal quotations omitted).
5

Clos v. Corrs. Corp. of Am., 597 F.3d 925, 928 (8th Cir. 2010) (citations omitted). In deciding whether to certify a judgment under Rule 54(b), the Court must first determine whether there has been an ultimate disposition on a cognizable claim for relief as to a claim such that there is a “final judgment.” Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7 (1980). If the Court determines that there is a final judgment for purposes of Rule 54(b), it “must go on to determine whether there is any just reason for delay,” taking into account “judicial administrative interests as well as the equities involved.” (Id. at 6-7.)
Defendants argue that both of these factors support certification under Rule 54(b) in this case. (See Doc. No. 973 at 7-8.) First, Defendants submit that “[t]he Court has issued a declaratory judgment in favor of Plaintiffs on Counts I and II.” (Id. at 8.) Second, Defendants submit that there is no just cause for delay under these “exceptional circumstances” because “[a]n immediate appeal would minimize the hardship or injustice that would be caused by delay, and would provide guidance as soon as possible to courts considering the myriad collateral challenges the Court’s order has fostered.” (Id.)
Plaintiffs oppose Defendants’ request under Rule 54(b). (See Doc. No. 972 at 6-8.) Plaintiffs argue that Defendants have failed to satisfy the first factor because “the Court’s Order is not a final judgment on Counts I and II of the Third Amended Complaint.” (Id. at 7.) Plaintiffs assert that “[t]he Order declares that the [MCTA] is unconstitutional on its face and as applied by the MSOP, but does not provide resolution on the concomitant claims for injunctive relief.” (Id.) Plaintiffs further assert that “[t]he Court is clearly contemplating granting additional relief given the serious constitutional issues it found with the [MCTA] as it is written and as it is being applied.” (Id. at 8.) In addition, Plaintiffs submit that, “[e]ven
6

if the Court were persuaded that the Order were final, there is just reason to delay the entry
of a final judgment” to prevent “piecemeal appeals” and to ensure that the parties and
interested non-parties “work to address the deficiencies identified in the Order before any
appeal occurs.” (Id.)
The Court concludes that the June 17, 2015 Order does not constitute a “final
judgment” under Rule 54(b). See Curtiss-Wright Corp., 446 U.S. at 6-7. The Court finds
that the June 17, 2015 Order, which reserved imposing relief with respect to Counts I and II
of Plaintiffs’ Third Amended Complaint, does not constitute a final judgment in the sense
that it was not an ultimate disposition of Counts I and II, and therefore, the Court cannot
certify the June 17, 2015 Order as a final judgment under Rule 54(b). See In re Lull Corp.,
52 F.3d 787, 788 (8th Cir. 1995). Because the Court concludes that the June 17, 2015 Order
is not a final judgment, the Court need not address whether the judgment is otherwise certifiable for Rule 54(b) purposes.2 Accordingly, Defendants’ request for Rule 54(b)
certification is denied.
2 Nonetheless, the Court notes that, even if the Court were to accept that the June 17, 2015 Order constituted a final judgment, the Court cannot accept Defendants’ assertion that a delay in the imposition of injunctive relief rises to the level of a “hardship or injustice” that is properly alleviated by interlocutory appeal. Moreover, the Court finds that judicial administrative interests, including the interest in preventing piecemeal appeals, weigh against certification. See Clark v. Baka, 593 F.3d 712, 715 (8th Cir. 2010). This case has already generated two appeals, and even if the Court were to grant Defendants’ request for certification, and even assuming that the Eighth Circuit were to reach the merits of the appeal, it is possible that Defendants would appeal yet again after injunctive relief is imposed or after Plaintiffs’ remaining claims are finally resolved. In addition, even if the Eighth Circuit were to reach the merits of Defendants’ interlocutory appeal and were to agree with Defendants that the applicable standard of review is not strict scrutiny and remand the case to this Court for further proceedings, the Court would likely find that, even
(Footnote Continued on Next Page)
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ORDER

Based on the foregoing, and the files, records, and proceedings herein, IT IS

HEREBY ORDERED that Defendants’ request for certification of appeal pursuant to

28 U.S.C. § 1292(b) or, alternatively, Rule 54(b) (Doc. No. 973) is DENIED.

Dated: July 22, 2015

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

(Footnote Continued From Previous Page) under a heightened standard of review, the Minnesota statutes governing civil commitment and treatment of sex offenders are unconstitutional as written and as applied. As such, the Court determines that “this is not a case where sufficient reason for Rule 54(b) certification is evident from the record.” Clos, 597 F.3d at 929 (citations omitted).
8

 
 CASE 0:11-cv-03659-DWF-JJK Document 985 Filed 07/23/15 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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 official capacities,
Defendants.

Civil No. 11-3659 (DWF/JJK)
ORDER APPOINTING SPECIAL MASTER

Based upon the status of this case, and in light of the entire record before the Court, and the Court otherwise being duly advised in the premises, IT IS HEREBY ORDERED that:
1. The Court appoints former Chief Justice Eric J. Magnuson as Special Master in this matter pursuant to Rule 53 of the Federal Rules of Civil Procedure. Pursuant to Rule 53, and the Court’s inherent authority to seek assistance in order to administer its cases efficiently, economically, and in the interests of justice, the Court concludes that the appointment of a Special Master in this case is necessary to coordinate the efforts of the parties following the Court’s determination of Defendants’ liability on Counts I and II of

CASE 0:11-cv-03659-DWF-JJK Document 985 Filed 07/23/15 Page 2 of 2

Plaintiffs’ Third Amended Complaint (Doc. No. 635), to accommodate the public interest in

achieving prompt and just solutions to the serious constitutional problems identified by the

Court, and to lessen the expense and strain of resources on the Court and the parties in a

case of this magnitude.

2. In his role as Special Master, Eric J. Magnuson is authorized to provide

oversight of the injunctive relief imposed by the Court with respect to Counts I and II of

Plaintiffs’ Third Amended Complaint (Doc. No. 635), and is further authorized to perform

any ancillary acts necessary to properly perform his duties under this Order and under

Rule 53. Under Rule 53(c), Special Master Magnuson “has the authority to regulate all

proceedings and take all appropriate measures to perform fairly and efficiently” his assigned

duties. The role of Special Master Magnuson is viewed by the Court as a nonadversarial

role and, as such, the Court assumes and expects that the parties will cooperate and

communicate with Special Master Magnuson.

3. Special Master Magnuson has agreed to serve in a pro bono capacity at no

cost to the parties or expense to the Court. Because Special Master Magnuson has agreed to

serve in a pro bono capacity, all fees and compensation for the time and services rendered

shall be his responsibility, and will not be borne by the parties in this matter.

4. The Court reserves the right to amend this Order at any time, upon notice to

the parties, and an opportunity to be heard.

Dated: July 23, 2015

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

2

 
 CASE 0:11-cv-03659-DWF-TNL Document 1005 Filed 08/10/15 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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 official capacities,
Defendants.

Civil No. 11-3659 (DWF/JJK) ORDER

Daniel E. Gustafson, Esq., Karla M. Gluek, Esq., David A. Goodwin, Esq., Raina Borrelli, Esq., Lucia G. Massopust, Esq., and Eric S. Taubel, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.
Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Adam H. Welle, and Aaron Winter, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for Defendants.

This matter came before the Court for a Fairness Hearing on August 10, 2015, upon Plaintiffs’ Motion to Dismiss Counts IV, XI, XII, and XIII of the Third Amended Complaint (Doc. No. 925). All parties appeared through counsel.

CASE 0:11-cv-03659-DWF-TNL Document 1005 Filed 08/10/15 Page 2 of 2

Based upon the arguments of counsel, the files, record, and proceedings herein, and

the Court being otherwise duly advised in the premises, the Court hereby enters the

following:

ORDER

1. Plaintiffs’ Motion to Dismiss Counts IV, XI, XII, and XIII of the

Third Amended Complaint (Doc. No. [925]) is GRANTED.

2. The objections filed by Plaintiff Class Members (Doc. Nos. [993] & [994]) are

respectfully OVERRULED.

3. Counts IV, XI, XII, and XIII of the Third Amended Complaint (Doc.

No. [635]) are DISMISSED WITH PREJUDICE.

Dated: August 10, 2015

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

2

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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, Kevin Moser, Peter Puffer, Nancy Johnston, Jannine Hébert, and Ann Zimmerman, in their official capacities,
Defendants.

Civil No. 11-3659 (DWF/JJK) ORDER

Daniel E. Gustafson, Esq., Karla M. Gluek, Esq., David A. Goodwin, Esq., Raina Borrelli, Esq., Lucia G. Massopust, Esq., and Eric S. Taubel, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.
Nathan A. Brennaman, Deputy Attorney General, Scott H. Ikeda, Adam H. Welle, and Aaron Winter, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for Defendants.

This matter is before the Court on Defendants’ Motion to Stay or Suspend the Court’s October 29, 2015 Order Pending Appeal. (Doc. No. 1037.) Plaintiffs oppose the motion. (See Doc. No. 1045.) For the reasons set forth below, the Court denies Defendants’ motion.

BACKGROUND On June 17, 2015, the Court concluded the liability phase of this litigation and issued its Findings of Fact, Conclusion of Law, and Order. (Doc. No. 966.) On October 29, 2015, the Court issued its First Interim Relief Order in the remedies phase of this litigation. (Doc. No. 1035.) In that Order, the Court enjoined Defendants as follows: (1) to complete risk and phase placement reevaluations within 30 days of eight individuals who have been identified during this litigation as eligible for a reduction in custody; (2) to submit a plan within 30 days to complete risk and phase placement reevaluations of the elderly, individuals with disabilities, and juvenile-only offenders by a presumptive deadline of April 1, 2016, subject to modification by the Court; (3) to submit a plan within 60 days to complete risk and phase placement reevaluations of all remaining individuals at the MSOP by a presumptive deadline of December 31, 2017, subject to modification by the Court; (4) to submit plans within 30 days describing how Defendants would establish various discharge-related remedies; and (5) to submit a plan within 30 days describing how Defendants would manage conducting annual, independent risk assessments for all individuals at the MSOP. (See id. at 39-42.) On October 29, 2015, Defendants filed a Notice of Appeal of the Court’s Orders and a Motion to Stay or Suspend the Court’s October 29, 2015 Order Pending Appeal. (Doc. Nos. 1036; 1037.) On November 4, 2015, Plaintiffs filed a memorandum in
2

opposition to Defendants’ motion. (Doc. No. 1045.) The Court took the matter under advisement without a hearing. (See Doc. No. 1046.)1

1

Defendants’ Memorandum of Law includes a lengthy recitation of what

Defendants characterize as “the irregular proceedings that led to the Court’s liability and

injunctive Orders.” (Doc. No. 1039 at 1-17.) In response, Plaintiffs’ Memorandum

addresses “Defendants’ inaccurate characterization of the record in this case.” (Doc.

No. 1045 at 2-20.) The Court will refrain from responding to all of Defendants’ charges

against the Court and will let the record speak for itself. However, the Court notes a few

examples in which Defendants’ mischaracterizations take the facts out of context and

distort the record in this case.

Defendants challenge the Court’s decision to admit the Sex Offender Civil

Commitment Advisory Task Force Report into evidence based on Federal Rule of

Evidence 408, which prohibits the admission of settlement communications into

evidence. (Doc. No. 1039 at 9-10.) In fact, although the idea of a Task Force was born

from settlement discussions, the Task Force Report was not created for settlement

purposes. The Task Force was created “to examine and provide Human Services

Commissioner Lucinda Jesson with recommendations on the processes relating to the

civil commitment of sex offenders in Minnesota,” and as Plaintiffs point out, (Doc. No.

1045 at 12), the Task Force Report was publicly disclosed by Defendants themselves on

the Department of Human Services website where it continues to remain public to this

day. (See http://mn.gov/dhs/general-public/about-dhs/advisory-councils-task-forces/sex-

offender-task-force.jsp (last visited November 20, 2015)); see also Doc. No. 832, Feb. 5,

2015 Order at 4-6.)

In addition, Defendants criticize the Court’s appointment of a Technical Advisor

who also served as a Court Monitor on another case before the Court. (Doc. No. 1039 at

2.) Defendants claim that the Court made this appointment “based on a purported factual

relationship between this case and . . . Jensen v. DHS.” (Id.) In fact, it was

Commissioner Lucinda Jesson herself who identified the relationship between this case

and the Jensen case when she sent a letter to the Court “in connection with both Jensen

and Karsjens” to notify the Court about a plan to transfer a group of committed

individuals with disabilities from the MSOP to a state facility which would no longer be

used to house individuals with developmental disabilities. (See Doc. No. 341, Sept. 27,

2013 Order at 2-5.)

These are only a few examples, and—as noted above—the Court will refrain from

commenting further. The Court will, however, address additional mischaracterizations as

they are relevant to this Order, below.

3

DISCUSSION A federal district court may—in its discretion—“suspend, modify, restore, or grant an injunction” pending the matter’s resolution on appeal. See Fed. R. Civ. P. 62(c). “A stay is not a matter of right, even if irreparable injury might otherwise result to the appellant. It is an exercise of judicial discretion. The propriety of its issue is dependent upon the circumstances of the particular case.” Scripps-Howard Radio v. F.C.C., 316 U.S. 4, 10-11 (1942) (internal quotation marks and citations omitted); see also Nken v. Holder, 556 U.S. 418, 433 (2009). The Court considers four factors in determining whether to grant a motion to stay: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant will be irreparably harmed absent a stay; (3) whether issuance of the stay will substantially injure the non-moving party; and (4) the public interest. Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Brady v. Nat’l Football League, 640 F.3d 785, 789 (8th Cir. 2011). As the moving party, Defendants bear the heavy burden to prove all four factors, and the first two factors are the most critical. Nken, 556 U.S. at 433-34; see also 11 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus, & Adam N. Steinman, Federal Practice and Procedure § 2904 (3d ed. 2015) (“[B]ecause the burden of meeting the standard is a heavy one, more commonly stay requests will be found not to meet this standard and will be denied.”). “Ultimately, [the Court] must consider the relative strength of the four factors, balancing them all.” Brady, 640 F.3d at 789 (internal quotation marks and citations omitted).
4

I. Likelihood of Success on the Merits The Court must consider whether Defendants have “made a strong showing that
[they are] likely to succeed on the merits.” Hilton, 481 U.S. at 776. “It is not enough that the chance of success on the merits be better than negligible. . . . [M]ore than a mere possibility of relief is required.” Nken, 556 U.S. at 434 (internal quotation marks and citations omitted). Contrary to Defendants’ assertions, the Court finds that Defendants have failed to carry their burden of proving a strong likelihood of success on appeal. Defendants identify five “plain errors of law” to support their assertion that they “are likely to succeed on the merits on appeal.” (Doc. No. 1039 at 21.) But in prior rulings and orders, the Court has already rejected many of Defendants’ arguments relating to these purported errors. See Robinson Rubber Prods. Co., Inc. v. Hennepin Cty., Minn., 927 F. Supp. 343, 346 (D. Minn. 1996) (denying a motion to stay an injunction and noting that “[t]he court has previously considered and found unpersuasive the cases cited by [Defendant]”).
A. Use of Rule 706 Experts First, Defendants assert that they are likely to succeed on appeal based on the Court’s use of the Rule 706 Experts. (Doc. No. 1039 at 21-23.) Rule 706(a) provides: On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.
5

Fed. R. Evid. 706(a). Defendants argue that the Rule 706 Experts were improperly appointed for the benefit of Plaintiffs and to develop Plaintiffs’ case. (Doc. No. 1039 at 23.) The Court, however, explained in a prior Order that it would make “no determination as to whether Plaintiffs are entitled to appointment of experts solely on their behalf pursuant to Rule 706.” (Doc. No. 354, Oct. 25, 2013 Order at 3.) Instead, the Court appointed the Rule 706 Experts based on the recognition that the Court “require[d] the assistance of expert testimony to properly adjudicate the claims in this matter.” (Id.) Furthermore, as the Court explained in a prior ruling from the bench regarding the Rule 706 Experts, “the four 706 experts were appointed on the joint nomination of the parties as experts in the field and endorsed by and with the parties’ confidence in their fairness and independence, as required by Rule 706.” (Doc. No. 570, Evid. Hr’g Tr. at 265-66.) Counsel for Defendants admitted as much in a pretrial evidentiary hearing, stating that “[t]he Court . . . appointed Rule 706 [E]xperts . . . with the cooperation of both sides and the agreement of all sides.” (Id. at 272.) Simply because the Rule 706 Experts made findings in Plaintiffs’ favor does not retroactively demonstrate that they were appointed to develop Plaintiffs’ case. The Court finds that its appointment of the Rule 706 Experts was proper and finds Defendants have not made a strong showing of likely success with respect to this argument.2

2

Defendants also claim that the Court “required Defendants to pay for the entire

expense of the [Rule 706 E]xperts” on a $1.8 million budget. (Doc. No. 1039 at 4.) In

(Footnote Continued on Next Page)

6

Defendants also argue that the Court’s use of the Rule 706 Experts resulted in an
“unfair review process” based on certain ex parte instructions from the Court that
purportedly violated Rule 706. (Doc. No. 1039 at 23.) Rule 706(b) requires the court to
“inform the expert of the expert’s duties . . . in writing . . . or . . . orally at a conference in
which the parties have an opportunity to participate.” Fed. R. Evid. 706(b). The Court
complied with this requirement by including detailed descriptions of the Rule 706
Experts’ duties in its written Orders. (See Doc. Nos. 393, Dec. 6, 2013 Order at 4; 427,
Feb. 19, 2014 Order at 70-75.) As the Court explained in ruling on Defendants’
evidentiary objection to the use of the Rule 706 Experts’ reports, the Court had ex parte
communications with the Rule 706 Experts “for logistical and organizational purposes[,]
subject to the limitations [of] Rule 706.” (Doc. No. 570, Evid. Hr’g Tr. at 267 (quoting
Doc. No. 427, Feb. 19, 2014 Order at 74).) “[N]o other instructions [were] given that
would go beyond the scope of [the Court’s February 19, 2014 Order].” (Id. at 280.) In
(Footnote Continued From Previous Page) fact, the Court ordered the parties to “meet and confer, facilitated by the Court’s Technical Advisor if necessary, to establish an interim budget deposit for the experts and a mechanism for payment.” (Doc. No. 427, Feb. 19, 2014 Order at 75.) The Court provided that “[w]ithout prejudice to subsequent adjustment, such costs shall be initially allocated to Defendants.” (Id.) In a subsequent Order, the Court memorialized the parties’ agreement as to the budget for the Rule 706 Experts, providing that “[b]y agreement, the Department of Human Services shall make an interim budget deposit to the Registry of Court in the amount of $1,800,000 on account for the fees and expenses pursuant to this Order.” (Doc. No. 434, Mar. 17, 2014 Order at 2.) The Court further provided that any remaining balance not expended would “promptly be returned to the Department of Human Services.” (Id. at 3.)
7

addition, the parties all knew of the Court’s meetings with the Rule 706 Experts and neither party raised objections to those meetings being held. (Id. at 267-69.) The Court overruled Defendants’ Rule 706 objection prior to trial, (id. at 271), and finds that Defendants are unlikely to succeed in advancing this objection on appeal.
Furthermore, the Court’s conclusions that Minnesota’s sex offender civil commitment statute is unconstitutional on its face and as applied were based primarily on the testimony and admissions of Defendants’ own witnesses and employees. (See Doc. No. 1045, Pls.’ Mem. in Opp’n to Defs.’ Mot. to Stay at 27-30 (cataloguing numerous findings in the Court’s Findings of Fact, Conclusions of Law, and Order that were based solely on Defendants’ and MSOP employees’ testimony).) Significantly, the Court would have reached the same conclusions on the record before the Court even without the Rule 706 Experts. Nevertheless, the Court’s use of the Rule 706 Experts in this case was proper, and the Court does not find that Defendants have made a strong showing of likely success on this argument on appeal.
B. Applicability of Preiser and Heck Second, Defendants contend that the Court’s orders improperly challenge the fact and duration of Plaintiffs’ commitment in violation of Preiser v. Rodriguez, 411 U.S. 475 (1973), and Heck v. Humphrey, 512 U.S. 477 (1994). (Doc. No. 1039 at 24-26.) The Court has previously addressed these arguments, (see Doc. No. 580, Aug. 11, 2014 Order at 35-37 & n.21), finding this § 1983 class action proper notwithstanding the holdings of
8

Preiser and Heck. The Court will not rehash its analysis here, but notes that its First Interim Relief Order demonstrates how this case is distinguishable from cases in which individuals challenge the validity of a state commitment or incarceration order. See, e.g., Carter v. Bickhaus, 142 F. App’x 937, 938 (8th Cir. 2005) (applying Preiser and Heck and dismissing a committed individual’s § 1983 claim because he sought “release from custody”). Here, Plaintiffs challenge deeply systemic problems in the overall operation of the MSOP, which have led to a system of indefinite and punitive detention contrary to the proper purpose of civil commitment. See Kansas v. Hendricks, 521 U.S. 346, 368-69 (1997). Consistent with what Plaintiffs have sought in this case, the Court’s remedies do not directly order the release or transfer of any individual. Rather, the Court orders Defendants to complete assessments to ensure that those committed to the MSOP continue to meet the constitutional criteria for civil commitment outlined in Call v. Gomez, 535 N.W.2d 312, 318-19 (Minn. 1995) (i.e., that they continue to need treatment and pose a danger to the public). (Doc. No. 1035 at 39.) Only if those assessments determine that an individual should be released are Defendants required to comply with the state’s statutory process to petition and release that individual from the MSOP. (Id. at 40-41.) This case is clearly distinguishable from Preiser and Heck, and the Court finds Defendants have not met their burden of demonstrating a strong likelihood of success on appeal based on this argument.
9

C. Absence of Identifiable Harm Third, Defendants argue that they have a strong likelihood of success on appeal because the Court has not found concrete, identifiable harm suffered by any Plaintiff. (Doc. No. 1039 at 26-28.) As such, Defendants assert that Plaintiffs lack standing and claim the Court ordered improper relief. (Id. at 26-28.) As the Court explained in both its Findings of Fact, Conclusions of Law, and Order and its First Interim Relief Order, “all Class Members have suffered an injury in fact—the loss of liberty in a manner not narrowly tailored to the purpose for commitment.” (Doc. Nos. 966 at 50; 1035 at 33.) Further, Class members have suffered injury by being civilly committed to a system that has a punitive effect contrary to the purpose of civil commitment. (Doc. No. 966 at 59, 65.) The Court’s remedies will redress the unconstitutional liberty deprivations suffered by Plaintiffs by ensuring that they are not subject to continued commitment without proper constitutional safeguards to ensure that they are committed for only so long as they are both in need of treatment and sufficiently dangerous to warrant continued confinement.3 See Call, 535 N.W.2d at 319. The Court finds Defendants’ arguments

3

Defendants argue that a lack of risk assessments alone is insufficient to prove

harm. They suggest “Plaintiffs were required to go ‘one step further,’ . . . and prove at

trial that because they did not receive risk assessments, they continued to be committed to

MSOP when they should have instead been released.” (Doc. No. 1039 at 27 (citing Lewis

v. Casey, 518 U.S. 343, 351 (1996).) In Lewis, the Supreme Court explained that

prisoners seeking to vindicate their right of access to the courts cannot demonstrate actual

injury merely by pointing out deficiencies in the prison’s law library. Lewis, 518 U.S. at

351. The Court emphasized that there is no “abstract, freestanding right to a law library or

(Footnote Continued on Next Page)

10

with respect to Plaintiffs’ real and substantial injury to be meritless, and, as such,
Defendants have failed to demonstrate a strong likelihood of success on appeal on this
basis.
D. Class-Wide Relief
Fourth, Defendants argue that the Court’s First Interim Relief Order is erroneous
“because it provides for a non-final process for the determination of individualized relief
for Class members.” (Doc. No. 1039 at 31-34.) Defendants also challenge the Court’s
imposition of relief for identified groups such as the elderly, individuals with substantive
physical or intellectual disabilities, or juvenile-only offenders. (Id. at 31.) In issuing its
First Interim Relief Order, the Court addressed Defendants’ arguments about the
propriety of the Court’s relief under Rule 23(b)(2). (Doc. No. 1035 at 32-34.) The Court
concludes that its relief is proper because it imposes a systemwide remedy that will affect
(Footnote Continued From Previous Page) legal assistance,” so prisoners must “go one step further” to demonstrate that the deficiencies actually harmed a prisoner’s efforts to access the courts. Id. Here, Plaintiffs seek risk assessments to vindicate their due process right to be confined under a system that employs proper constitutional safeguards to protect their liberty interests. And here, unlike in Lewis, Plaintiffs have shown that they have been actually harmed through their unjustified confinement to an institution that fails to properly assess whether they pose a sufficient risk to warrant continued detention. The Court therefore finds this case clearly distinguishable from Lewis. Furthermore, another Court in this Circuit has recently suggested that “a system that includes proper risk assessment and release are rights protected by the constitutional guarantee of liberty,” supporting this Court’s finding of harm based on the lack of risk assessments at the MSOP. See Van Orden v. Schafer, No. 4:09CV00971 AGF, 2015 WL 5315753, at *30 (E.D. Mo. Sept. 11, 2015).
11

all class members identically. The Court’s identification of certain individuals and sub-populations does not alter the remedy afforded to each Class Member, but simply identifies the priority in which Defendants must complete the risk assessments ordered by the Court.4 For the reasons described more fully in its prior Order, the Court concludes that Defendants have failed to demonstrate a strong likelihood of success on appeal based on this argument.
E. Application of Strict Scrutiny Fifth, Defendants suggest they are likely to succeed on the merits on appeal because the Court improperly applied a strict scrutiny standard. As the Court has explained in prior Orders, the Court applied strict scrutiny in analyzing Plaintiffs’ claims because Plaintiffs’ fundamental right to live free of physical restraint is implicated by their continued commitment to the MSOP and constrained by the curtailment of their liberty. (See Doc. No. 966 at 51-53; 1035 at 15.) Because Plaintiffs’ claims implicate a fundamental right, the Court properly applied strict scrutiny, requiring Defendants to show that Minnesota’s sex offender civil commitment statute and Defendants’ application

4

The Court’s prioritization for evaluating committed individuals at the MSOP is

especially proper because Defendants have failed to make any recommendations

themselves to suggest a more appropriate order in which to complete assessments.

Further, these particular subgroups were identified throughout trial as those who were

mostly likely to be improperly assessed under current risk assessment practices. (See

Doc. No. 966 at 36, 38-40.)

12

of the statute are narrowly tailored to serve a compelling interest.5 (Doc. Nos. 966 at 53; 1035 at 15 (citing Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).) Applying strict scrutiny, the Court further considered whether Minnesota’s sex offender civil commitment statute or Defendants’ operation of the MSOP results in a punitive effect contrary to the purpose of civil commitment. (Doc. No. 966 at 2 (citing 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, retribution and general deterrence are reserved for the criminal system alone.”)).) The Court finds that it applied the correct standards, and Defendants have not made a strong showing of likely success based on this argument. Considering all of Defendants’ arguments, the Court concludes that the likelihood-of-success-on-the-merits factor weighs against staying the Court’s First Interim Relief Order. II. Irreparable Harm to Defendants
The Court also considers whether Defendants will be irreparably harmed absent a stay. Hilton, 481 U.S. at 776. As with each factor, the burden is on Defendants to prove

5

Defendants argue that the proper standard under Eighth Circuit precedent is

whether Defendants’ conduct is “so egregious or outrageous that it is

conscience-shocking.” (Doc. No. 1039 at 32 (quoting Beck v. Wilson, 377 F.3d 884, 890

(8th Cir. 2004)).) Although the Court continues to conclude that the proper standard to

apply in this case is strict scrutiny, the Court notes that the record in this case and the

findings outlined in the Court’s Findings of Fact, Conclusions of Law, and Order would

compel the Court to reach the same decision, even under a “shocks the conscience”

standard.

13

that this factor weighs in favor of granting its motion. “[S]imply showing some ‘possibility of irreparable injury’ fails to satisfy the second factor.” Nken, 556 U.S. at 434-35 (internal citation omitted). Defendants point to three types of irreparable harm that they would purportedly suffer if the Court declines to stay enforcement of its October 29, 2015 First Interim Relief Order. (Doc. No. 1039 at 18-21.) First, Defendants argue that denying a stay would deprive Defendants of their right to appeal by mooting issues to be raised on appeal. (Id. at 18-19.) Second, Defendants argue that they will be irreparably harmed by incurring “significant unrecoverable monetary loss.” (Id. at 20.) And third, Defendants suggest that they will suffer irreparable harm by being forced to comply with the Court’s First Interim Relief Order because it “present[s] practical challenges that are insurmountable given the timelines prescribed by the Court” and that are “practically impossible for [] Defendants to achieve.” (Id. at 21.)
Defendants have failed to meet their burden of establishing irreparable harm sufficient to warrant a stay pending appeal. As an initial matter, the Court finds it implausible to suggest that Defendants’ appeal rights will be deprived by the denial of a stay in this matter. Defendants have already appealed the case to the Eighth Circuit, and, as Plaintiffs have pointed out, the parties have been provided with a briefing schedule for appeal, with briefs to be completed by mid-February 2016. (See Doc. No. 1045 at 23.) The Court’s First Interim Relief Order requires Defendants to evaluate eight specific
14

individuals within thirty days of the Court’s Order. (Doc. No. 1035 at 39.)6 Other deadlines imposed by the Court, however, are subject to modification by the Court if Defendants establish a reasonable rationale for an alternate deadline. (See id. at 40, 42.) Specifically, the Court has ordered Defendants to submit detailed plans for completing risk assessments and phase placement reevaluations of the elderly, individuals with substantive physical or intellectual disabilities, and juvenile-only offenders by a presumptive deadline of April 1, 2016. (Id. at 40.) Similarly, the Court has ordered Defendants to submit plans to complete the assessments of the remaining individuals residing at the MSOP by a presumptive deadline of December 31, 2017. (Id.) The Court also orders Defendants to submit plans to establish discharge-related remedies and a plan to implement an annual risk assessment process within 30 days, but provides that Defendants may seek an alternate deadline by request to the Court. (Id. at 42.) Defendants have failed to establish how completing these specific actions on the Court’s time lines will result in irreparable harm or deprivation of their appellate rights. More importantly, Defendants have failed to demonstrate how they will be irreparably harmed by complying with the Court’s First Interim Relief Order when they have the clear option of requesting alternate reasonable deadlines in which to complete the ordered relief.

6

And notably, six of these eight individuals were identified by Defendants

themselves as appropriate candidates for a reduction in custody. (Doc. No. 966 at 22, 47.)

15

With respect to Defendants’ arguments regarding monetary losses and practical challenges, the Court is similarly unpersuaded. As noted in its First Interim Relief Order, the Court has considered Defendants claims regarding the cost and feasibility of completing risk assessments of all individuals at the MSOP. (Doc. No. 1035 at 22-23; see also Doc. No. 1027, Aff. of Lucinda Jesson.) However, the Court is not persuaded that these costs or difficulties will result in irreparable harm. A court may decline to grant a motion to stay based on claims of administrative and monetary harm where “the principal irreparable injury which defendants claim that they will suffer . . . is injury of their own making.” See Long v. Robinson, 432 F.2d 977, 981 (4th Cir. 1970) (denying a motion to stay in a case where the Defendants had repeatedly delayed remedying constitutional infirmities that had been the subject of legislative and public attention for four years). Here, the Court’s First Interim Relief Order implements expected remedies that have been proposed to Defendants for several years. In addition, the Court invited Defendants to propose how they could remedy the unconstitutional infirmities at the MSOP on numerous occasions. By failing to do so, Defendants have effectively created their own administrative and financial difficulties by forcing the Court to impose a remedy in the absence of Defendants’ own detailed input. The Court’s First Interim Relief Order invites Defendants to submit such input, and the Court reasonably allows for modification of deadlines to address specifically-identified fiscal and administrative challenges. At
16

this stage, Defendants have failed to establish the irreparable harm they claim they will suffer if the Court’s order is not stayed.
In addition, a court may take into account the moving party’s admissions regarding the appropriateness of the ordered relief in rejecting a party’s claim of irreparable harm. See, e.g., Halderman v. Pennhurst State Sch. and Hosp., 451 F. Supp. 233, 236 (E.D. Pa. 1978) (“In view of the testimony given by Commonwealth witnesses at trial that the Commonwealth intended to move all the [developmentally disabled] residents from Pennhurst into community facilities, the Commonwealth’s contention that the Court’s Order requiring this to be done will cause irreparable injury is unpersuasive.”). At trial, Defendants’ own employees admitted that they supported—or were in the process of implementing—many of the remedies that the Court ultimately ordered in this case. Commissioner Lucinda Jesson explained that she sought to implement a rolling risk assessment process at the MSOP, (Doc. No. 966 at 37-38), sought to speed up the hearing process for individuals seeking transfer or release, (id. at 45), and had entered into third-party contracts to establish less-restrictive alternative facilities, (id. at 22-23). Defendants’ own employees also testified that an annual risk assessment is the only way to determine whether an individual at the MSOP continues to meet the statutory criteria for commitment or for discharge. (Id. at 36.) Given these admissions, the Court is not persuaded by Defendants’ vague claims that they will suffer irreparable economic and
17

administrative harms by implementing the Court’s remedies. Thus, the Court finds this factor weighs against Defendants’ request for a stay of the Court’s order pending appeal. III. Injury to Plaintiffs
Next, the Court must consider whether issuance of the stay will substantially injure Plaintiffs. Hilton, 481 U.S at 776. Reiterating arguments about the lack of identified harm suffered by any Class Member, Defendants flatly assert that “Plaintiffs cannot show that a stay . . . will ‘substantially injure’ any identifiable Plaintiff or Class Member.” (Doc. No. 1039 at 34.) Specifically, Defendants note that “neither [Plaintiffs] nor the Court identified a single individual who is being unconstitutionally detained and should receive a reduction in custody.” (Id.) Again, Defendants mischaracterize the nature of the real and substantial injury suffered by the Class Members on a daily basis. All Plaintiffs will suffer substantial injury if this Court’s remedial order is stayed pending appeal.
Persistent confinement under unlawful conditions constitutes substantial injury to weigh against the imposition of a stay. See, e.g., United States v. Broncheau, 759 F. Supp. 2d 694, 697 (E.D.N.C. 2010) (“Respondents have already waited years without resolution of their cases and their continued incarceration is unacceptable under the laws and constitutional protections accorded all individuals.”); Kathleen S. v. Dep’t of Pub. Welfare of Pa., 10 F. Supp. 2d 476, 481 (E.D. Pa. 1998) (“[T]hese class members are irreparably injured every day they remain unnecessarily segregated in violation of the
18

ADA.”). Defendants’ operation of the MSOP results in a punitive effect contrary to the purpose of civil commitment, and Plaintiffs will be harmed by continuing to reside under such unlawful conditions. See Hendricks, 521 U.S. at 368-69 (finding a state civil commitment scheme to be not punitive in part because the state “permitted immediate release upon a showing that the individual is no longer dangerous or mentally impaired”). Although Plaintiffs’ do not seek—and the Court has not ordered—the discharge of any specific individual, the Court orders Defendants to establish a process that will ensure committed individuals only remain at the MSOP if they pose a sufficient danger to warrant continued confinement. The Court also orders Defendants to establish a plan to ensure that less-restrictive alternatives are available to accommodate individuals with varying levels of risk. If these remedies are stayed throughout Defendants’ appeal, Plaintiffs will continue to suffer each day by being subject to unjustified and unconstitutional deprivations of their fundamental liberty interests. The Court finds that this factor weighs strongly against granting Defendants’ motion.7

7

The Court also notes the emotional and psychological harm that Plaintiffs will face

if Defendants are allowed to further postpone implementing remedies to the systemic

problems at the MSOP. Numerous individuals at trial testified to the pervasive sense of

hopelessness among residents at the MSOP. (Doc. No. 966 at 19-20.) In addition, an

MSOP employee admitted that committed individuals believe they have no chance of

being discharged and think “they might die in the facility.” (Id. at 20.) Defendants’

failure to periodically assess all committed individuals at the MSOP to ensure that they

continue to be committed under constitutional standards and continue to be in the proper

treatment phase has created this sense of hopelessness.

19

IV. Public Interest Finally, the Court considers the public interest. Hilton, 481 U.S. at 776.
Defendants argue that avoiding the unnecessary expenditure of public funds and protecting the public safety should weigh in favor of granting their motion to stay. (Doc. No. 1039 at 34-36.) Importantly, however, “the public interest [also] favors the enforcement of the United States Constitution.” Robinson Rubber Prods. Co., Inc. v. Hennepin Cty., Minn., 927 F. Supp. 343, 348 (D. Minn. 1996). As outlined in detail in the Court’s Findings of Fact, Conclusions of Law, and Order, Defendants’ operation of the MSOP under Minnesota’s sex offender civil commitment statute is unconstitutional. (See Doc. No. 966 at 51-68 (“The Fourteenth Amendment does not allow the state, DHS, or the MSOP to impose a life sentence, or confinement of indefinite duration, on individuals who have committed sexual offenses once they no longer pose a danger to society.”).) Balanced against Defendants’ vague and unsupported claims that the Court’s First Interim Relief Order imposes public costs and threatens the public safety, the Court finds that the public interest in enforcing the Constitution weighs in favor of denying a stay. See Doe v. LaDue, 514 F. Supp. 2d 1131, 1138 (D. Minn. 2007) (“[T]here is great public interest in monitoring predatory offenders. However, there is an equally strong public interest in preserving constitutional rights.”).
The Court does not weigh Defendants’ public safety concerns lightly. However, Defendants have failed to articulate in sufficient detail the purported public safety risks
20

they claim will result from complying with the Court’s First Interim Relief Order. The Court’s Order simply requires Defendants to establish a system through which individuals who are assessed to no longer pose a safety risk may be promptly transferred from the MSOP to a less-restrictive alternative (whether another facility or a community placement under intensive supervision) or released into the community with proper transitional services. (Doc. No. 1035 at 39-42 (citing Call, 535 N.W.2d 312).) Balancing any public safety risks that this Order may create against the important interest in preserving Constitutional rights, the Court finds this factor weighs against granting Defendants’ motion to stay pending appeal.
CONCLUSION The Court’s First Interim Relief Order requires Defendants to take an intermediate first step toward remedying the grave constitutional infirmities that the Court identified in its Findings of Fact, Conclusions of Law, and Order. The First Interim Relief Order requires Defendants to begin conducting risk assessments of a small number of individuals, to submit plans to subsequently complete risk assessments of all individuals at the MSOP, and to submit plans to improve various problems in the MSOP’s discharge process. Importantly, risk assessments must take place to ensure that the MSOP is not confining any individuals who no longer meet the constitutional criteria for civil commitment. Defendants have failed to meet their burden of proving that they have a strong likelihood of success on the merits on appeal, that they will suffer irreparable harm
21

by complying with the Court’s Order, that Plaintiffs will not be substantially injured by a stay, or that a stay of the Court’s Order would best uphold the public interest. Therefore, the Court concludes that a stay pending appeal is not warranted.
ORDER Based upon the foregoing, and the files, records, and proceedings herein, IT IS HEREBY ORDERED that: 1. Defendants’ Motion to Stay or Suspend the Court’s October 29, 2015 Order Pending Appeal (Doc. No. [1037]) is DENIED. 2. All deadlines imposed in the Court’s First Interim Relief Order, (Doc. No. 1035 at 39-42), are modified to be effective from the date of this Order.

Dated: November 23, 2015

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

22

 
 CASE 0:11-cv-03659-DWF-TNL Document 1064 Filed 04/14/16 Page 1 of 7

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Kevin S. Karsjens, et al., Plaintiffs,
v. Emily Johnson Piper, et al.,
Defendants.

Civil No. 11-3659 (DWF!INL) ORDER

Raymond L. Semler, et al., Plaintiffs,
v.
Cal Ludeman, et al., Defendants.
Charles Richard Stone, Plaintiff,
v.
Lucinda E. Jesson, et al., Defendants.

Civii No. 11-644 (DWF!INL) Civil No. 11-951 (MJD/JSM) .

CASE 0:11-cv-03659-DWF-TNL Document 1064 Filed 04/14/16 Page 2 of 7

Eugene Christopher Banks, Plaintiff,
v.
Lucinda Jesson, et al., Defendants.
Christopher Ivey, Plaintiff,
v.
MSOP, et al., Defendants.
Lance Wickner, Plaintiff,
v.
Julie Rose, et al., Defendants.
Lance Wiclrner, Plaintiff,
v.
Robert Bender, et al., Defendants.
2

\
CivilNo. 11-1706 (MJD/JSM)
Civil No. 12-30 (DWF/TNL)
Civil No. 12-1397 (DWFILIB)
Civil No. 12-1452 (DWF/JSM)

CASE 0:11-cv-03659-DWF-TNL Document 1064 Filed 04/14/16 Page 3 of 7

Eugene Christopher Banks, Plaintiff,
.;
v. Lucinda Jesson, et al.,
Defendants.
Wesley Elmer Wills, Plaintiff,
v. Lucinda Jesson, et al.,
Defendants.
Kevin John DeVillion, Plaintiff,
v.
Minnesota Department ofHuman Services, et al., Defendants.
Michael R. Whipple, . Plaintiff,
v. Matthew Stenger, et al.,
Defendants.
3

Civil No. 12-2901 (ADM/TNL) Civil No. 13-1973 (PAM/TNL) Civil No. 13-2134 (DWFILIB)
Civil No. 13-2861 (JRT/HB)

CASE 0:11-cv-03659-DWF-TNL Document 1064 Filed 04/14/16 Page 4 of 7

Shawn Jamison, Plaintiff,
v.
Blake Carey, et al., Defendants.

Anthony C. Green,

i
l.
)
v.

Plaintiff,

Kelly Lake, et al.,

Defendants.

Steven Allan Housman, et al., Plaintiffs,
v. Lucinda Jesson, et al.,
Defendants.

Sarprio Doranti, Plaintiff,
v. State ofMinnesota, et al.,
Defendants.
4

'
Civil No. 14-554 (PAM/FLN) Civil No. 14-1056 (ADMIFLN)
Civil No. 15-2209 (PAMIHB) Civil No. 15-3247 (DWF/LIB)

- --

CASE 0:11-cv-03659-DWF-TNL Document 1064 Filed 04/14/16 Page 5 of 7

Shawn Jamison, Plaintiff,
v. Kevin Moser, et al.,
Defendants.
Justin Oman, et al., Plaintiffs,
v.
Chad Mesojedec, et aJ., Defendants.

\
Civil No. 15-3307 (PAM/FLN)
Civil No. 16-277 (JNE/TNL)

On June 17, 2015, Judge Donovan W. Frank ruled in favor ofPlaintiffs in Karsjens, et al. v. Jesson, et al., Civil No. 11-3659 (DWFffNL) on Counts I and IT of their Third Amended Complaint, finding that the Minnesota Sex Offender Program ("MSOP") and its corresponding statutory scheme violated the United States Constitution. On August 20, 2015, the undersigned issued a Third Amended Stay Order staying "[a]ll current and future civil rights cases brought by an individual or group of individuals who has or have been civilly committed to the Minnesota Sex Offender Program that are sufficiently related to [Karsjens]."
On October 29, 2015, Judge Donovan W. Frank issued the First Interim Relief Order in Karsjens. The Defendants in Karsjens have appealed Judge Donovan W.
5

CASE 0:11-cv-03659-DWF-TNL Document 1064 Filed 04/14/16 Page 6 of 7
...
Frank's liability and relief orders to the United States Court ofAppeals for the Eighth Circuit. The Karsjens litigation thus remains ongoing and unresolved.
Notwithstanding the continuing litigation in Karsjens, the undersigned finds it appropriate to lift the stays previously imposed in the above-entitled matters. The claims in these cases were not integral to Judge Donovan W. Frank's liability and relief orders in Karsjens. As a result, it is unlikely that the claims in these cases will be affected by the Eighth Circuit's ultimate ruling in the Karsjens claims on appeal. Further, because it is unclear at this juncture whether or when a Phase II trial in Karsjens might occur,1 any similarity between the above-entitled cases and Karsjens and the possibility of inconsistent rulings is outweighed by the prejudice to the Plaintiffs in the above-entitled matters of continuing to stay these cases pending subsequent litigation in Karsjens.
The undersigned, in his capacity as Chief United States District Judge for the District of Minnesota, in order to secure the just, speedy, and inexpensive resolution of the above-entitled actions pending before the Court, has consulted with the judges and magistrate judges assigned to the above-entitled matters.
Based on the status of the above-entitled matters, and the Court being otherwise duly advised in the premises, the Court hereby enters the following: .
For detail regarding Phase I and Phase II in the Karsjens matter, see Doc. No. 647, Final Pretrial Order at 2.
6

CASE 0:11-cv-03659-DWF-TNL Document 1064 Filed 04/14/16 Page 7 of 7

ORDER

1. Lifting of the Stays Imposed in the Above-Entitled Matters

The stays previously imposed in the above-entitled matters are hereby LIFfED in

all respects, until further order of the Court stating otherwise.

2. Service

The Clerk of the United States District Court for the District of Minnesota is

respectfully directed to file this Order in each case identified above and to provide a copy

I··

of this Order, via United States mail, to every Plaintiff in these cases.

DATED: April~2ol£{,
at Minneapolis, Minnesota.

~ h .~keiVVL-
JOHN R. TUNHEIM Chief Judge
United States District Court

7

 
 2014 WL 4446270 Only the Westlaw citation is currently available.
United States District Court, D. Minnesota.
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). Signed Sept. 9, 2014.
Attorneys and Law Firms
Daniel E. Gustafson, Esq., David A. Goodwin, Esq., Karla M. Gluek, Esq., and Raina Borrelli, Esq., Gustafson Gluek PLLC, for Plaintiffs. Aaron Winter, Ricardo Figueroa, Adam H. Welle, Nathan A. Brennaman, and Scott H. Ikeda, Assistant Attorneys General, Minnesota Attorney General's Office, for Defendants.
ORDER DONOVAN W. FRANK, District Judge.
INTRODUCTION *1 This matter is before the Court on Defendants' request for a jury trial (Doc. No. 589) and Plaintiffs' request for a bench trial (Doc. No. 590) for the first phase of trial (“Phase One”) scheduled to begin on February 9, 2015. For the reasons discussed below, the Court denies Defendants' request and grants Plaintiffs' request.
BACKGROUND At the August 21, 2014 Scheduling Conference, the Court proposed bifurcating the proceedings into phased bench and jury trials, based on the nature of the issues presented, in order to promote efficiency and expediency. (Doc. No. 593.) Following the Scheduling Conference, the Court ordered the parties to file simultaneous briefs on whether the Seventh Amendment provides a right to a jury trial on the issues proposed for Phase One. (Doc. No. 586.) The parties filed briefs on August 29, 2014 (Doc. Nos.589, 590) and response memoranda on September 2, 2014 (Doc. Nos.594, 595).
DISCUSSION I. The Scope of Phase One The Court proposes that the following issues be addressed in Phase One: (1) whether the civil commitment statute is unconstitutional on its face; and (2) whether the civil commitment statute is unconstitutional as applied. These systemic constitutional issues encompass the nature and duration of civil confinement, including the following nonexhaustive list of sub-issues: whether periodic independent reviews are provided; whether risk or dangerousness is evaluated during reviews; whether less restrictive alternatives are required; whether the treatment provided is constitutionally infirm; whether the systemic conditions of confinement are

unconstitutional; and whether the reduction in custody and discharge procedure is constitutionally infirm. Phase One will not include inquiry into individual class member cases and, therefore, will not reach issues of damages or individual injunctive relief. Phase One will also not foreclose a number of issues, including issues related to qualified immunity and individual circumstances. II. The Seventh Amendment Right to a Jury Trial for Phase One A. Legal Standard The Seventh Amendment provides that “[i]n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved....” U.S. Const. amend. VII. “Suits at common law” refer to suits in which legal rights are to be ascertained and determined, in contrast to those where equitable rights alone are recognized, and equitable remedies are administered. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 41 (1989); see also City of Monterey v. Del Monte Dunes, 526 U.S. 687, 719 (1999) (holding that “[i]t is settled law that the Seventh Amendment does not apply” in “suits seeking only injunctive relief” or “suits seeking only equitable relief”). “The law is well settled that whether plaintiffs are entitled to a jury trial cannot be determined solely on the basis of allegations contained in the complaint,” but must be resolved “by an appraisal of the basic nature of the claims or issues presented, and the type of relief sought.” Klein v. Shell Oil Co., 386 F.2d 659, 663 (8th Cir.1967); see also In re Vorpahl, 695 F.2d 318, 322 (8th Cir.1982) (providing that “[t]he right to a jury trial under the Seventh Amendment depends on the nature of the issue to be tried”). Specifically, courts must apply a two-part test to determine whether a Seventh Amendment right to a jury trial exists: (1) whether the action before it is comparable “to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity”; and (2) whether the remedy sought “is legal or equitable in nature.”Chauffers, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 565 (1990). B. Application of the Seventh Amendment to Phase One Issues *2 To determine whether the Phase One issues are within the ambit of the Seventh Amendment, the Court must apply the two-part test. First, the Court must determine whether the causes of action are analogous to those that would be tried to a jury “prior to the merger of the courts of law and equity.” In the Second Amended Complaint, Plaintiffs allege that the civil commitment statute is unconstitutional on its face and as applied under the federal and state constitutions. For example, in Count I, Plaintiffs allege that Defendants' failure to provide Plaintiffs with treatment that is reasonably related to the purpose of their civil commitment violates the Fourteenth Amendment to the United States Constitution, pursuant to42 U.S.C. § 1983, and Article 1 of the Minnesota Constitution. (Doc. No. 301 at 58.) In Count IV, Plaintiffs allege that denial of Plaintiffs' rights to less restrictive alternative placements violates the Fourteenth Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983, and Article 1 of the Minnesota Constitution. (Id. at 64.) Similarly, in Count IX, Plaintiffs allege that enforcement of the civil commitment statute violates Plaintiffs' constitutional rights. (Id. at 72.) Defendants characterize these claims as primarily legal in nature. (Doc. No. 589 at 5.) Defendants correctly point out that the Supreme Court has held that “a [Section] 1983 suit seeking legal relief is an action at law within the meaning of the Seventh Amendment.” (Id. (citing City of Monterey, 526 U.S. at 709–11).) However, Plaintiffs dispute the characterization of the relief sought as primarily “legal” and instead contend that the relief sought is primarily “equitable.” (Doc. No. 594 at 3.) The Court finds that the relief sought in these claims is predominantly equitable in nature with respect to the Phase One issues being considered by the Court. The Court next examines whether the remedy sought “is legal or equitable in nature.” First, although Plaintiffs admit that they seek legal relief in the form of monetary damages, Plaintiffs also concede that “they are not seeking damages at this point on the Phase One issues.” (Id. at 4.) Second, as Plaintiffs contend, and the Court agrees, “[m]erely requesting damages does not lead to a blanket Seventh Amendment right to a jury trial

on all issues presented in the case.” (Id. at 2); see also Klein, 386 F.2d at 663 (noting that “the form of relief sought by a plaintiff is not necessarily determinative of the method of trial”). Finally, Plaintiffs assert claims for declaratory and injunctive relief in their Second Amended Complaint for the alleged constitutional violations, which neither party disputes are equitable in nature. Plaintiffs maintain that the “equitable relief is at the heart of Plaintiffs' claims” and that, “[g]iven the equitable nature of Plaintiffs' claims, any damages are incidental” to the principal challenge to the constitutionality of the civil commitment statute and request for declaratory and injunctive relief. (Doc. No. 594 at 3.) The Court finds that the remedy sought in these claims is primarily equitable in nature. *3 Moreover, in cases involving both legal and equitable claims, the Supreme Court has recognized that courts may resolve the equitable claim prior to the legal claim even though the results might be dispositive of the issues involved in the legal claim. See Katchen v. Landry, 382 U.S. 323, 339–40 (1966); see also Fed.R.Civ.P. 39(a) (providing that a jury trial may be denied on some issues if “the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the United States”). The claims proposed for Phase One, however couched, assert predominantly equitable claims, seek predominantly equitable remedies, and rest entirely on equitable principles. Although Plaintiffs also seek legal relief in the form of monetary damages, such issues would be addressed in the second phase of trial. Thus, the Court concludes that a bench trial is appropriate in Phase One and is consistent with the Seventh Amendment. In sum, the Court determines that the Seventh Amendment does not require a trial by jury for Phase One. Instead, the Court concludes that a bench trial adjudicating the Phase One systemic constitutional issues is consistent with the parties' Seventh Amendment right to a jury trial. The broad substantive due process challenge to the constitutionality of the Minnesota Sex Offender Program involves the type of liability issues that are “of course, routinely reserved without question for the Court.” City of Monterey, 526 U.S. at 753 (Souter, J., concurring in part and dissenting in part). In the event that the Phase One systemic issues incidentally relate to any individual claims for damages, such individual claims will be reserved for trial by jury.
ORDER Based upon the foregoing, and the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendants' request for a jury trial for Phase One (Doc. No. [589] ) is DENIED and Plaintiffs' request for a bench trial for Phase One (Doc. No. [590] ) is GRANTED.

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA
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 official capacities, Defendants.
Civil No. 11-3659 (DWF/JJK)
February 2, 2015, Filed February 2, 2015, Decided
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.
DONOVAN W. FRANK, United States District Judge
DONOVAN W. FRANK
MEMORANDUM OPINION AND ORDER 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,"4unless 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 ("Hébert 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 Hébert 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 Hébert 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 Hébert Aff. ¶¶ 55-58; 706 Report at 31; Puffer Dep. at 14.) Residents must meet the requirements [*2] 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 Hébert 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 Hébert Aff. ¶ 92; 706 Report at 33; Gustafson Decl. ¶ 6, Ex. 4 ("Hébert 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 Hébert 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. SeeMinn. 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 employees12 for violations of their constitutional and statutory rights. (SeeDoc. No. 1 ("Compl.").) [*3] 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 athttps://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 [*4] 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 generally706 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 [*5] 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 Hébert have breached Plaintiffs' contractual rights; and (XIII) Defendants Jesson, Benson, Moser, Lundquist, Johnston, and Hébert 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 Dismiss
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 for relief that is plausible on its face." Bell Atl. 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 . "Threadbare 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. Counts I and II
Defendants first move to dismiss the "new" claims in Counts I and II of Plaintiffs' Third Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (See Doc. No. 651.) Defendants attempt to distinguish their present motion from their earlier motion to dismiss Plaintiffs' Second Amended Complaint (Doc. No. 347), which was denied in most respects in the Court's February 19, 2014 Order (Doc. No. 427),14 by asserting that the Third Amended Complaint contains an additional claim that Minn. Stat. § 253D is facially[*6] unconstitutional. (See Doc. No. 653 at 3.) Defendants further assert that the counts at issue are different because "Count II now alleges that Minn. Stat. § 253D is unconstitutional 'as applied' because the statute violates constitutional rights through Defendants 'enforcement' of its provisions." ( Id. at 16-17.)
Plaintiffs counter that the Third Amended Complaint "simply does not allege new claims," but "[r]ather, in order to clarify the claims in the [Third Amended Complaint], Plaintiffs made nearly identical asapplied and facial challenges that address issues Defendants have known about for years." (Doc. No. 707 at 4.) According to Plaintiffs, "[t]hese are not new, separate and distinct claims"; "merely because Plaintiffs chose to clarify the issues by including separate as-applied and facial challenges, two distinct legal claims are not created." ( Id. at 4-5.) Moreover, Plaintiffs contend that "[t]he claims set forth in Counts I and II in the [Third Amended Complaint] have already been ruled on by the Court," and "[i]n an attempt to circumvent the Court's prior denial of dismissal, Defendants mischaracterize the amendments to Plaintiffs' [Third Amended Complaint] as 'new claims.'" ( Id. at 3.) In support of this argument, Plaintiffs observe that, "[i]n [Defendants'] objection to Plaintiffs' Motion for Leave to File a Third Amended Complaint, Defendants argued, as they do now, that the [Third Amended Complaint] 'includes a new facial challenge to the commitment statute,' and that 'Plaintiffs' 'as applied' challenge has been largely rewritten.'" ( Id. (quoting Defendants' response brief and hearing transcript).) Plaintiffs note that

the Magistrate Judge, having seen the proposed amendments in the Third Amended Complaint, disagreed, stating:
I conclude that there are no new claims asserted in this amended complaint. The Fourteenth Amendment due process claim has obviously been in this case from the very beginning. There . . . was no need for the plaintiffs to separate out an as-applied or facial challenge separate claim within the case. They have now — as a result of developments in the case, this new complaint adds specificity with respect to the challenge to the constitutionality of the MSOP program, but it does not in any way raise new claims in a fashion that would prejudice the defendants or require any delay in these proceedings. So the motion is granted.
( Id. at 4 (quoting the hearing transcript).) Finally, Plaintiffs contend that "Defendants filed objections to Judge Keyes' ruling, which were overruled by Judge Frank, who found that Judge Keyes' order granting Plaintiffs' motion for leave to amend the complaint was not 'clearly erroneous or contrary to law.'" ( Id. (quoting Doc. No. 665 ("Dec. 2014 Order")).)
The Court concludes, as did Magistrate Judge Keyes, that the Third Amended Complaint does not allege new claims. Because the Court finds that the Third Amended Complaint does not add any new claims, and because the Court has already addressed Defendants' motion to dismiss Plaintiffs' Second Amended Complaint with respect to the issues presented here, there is no need for the Court to revisit [*7] the issue at length at this time. Therefore, the present motion to dismiss is denied.
II. Motion for Summary Judgment 15
A. Legal Standard
Summary judgment is appropriate if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) . Courts must view the evidence, and the inferences that may be reasonably drawn from the evidence, in the light most favorable to the nonmoving party. Weitz Co. v. Lloyd's of London, 574 F.3d 885 , 892 (8th Cir. 2009). However, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317 , 327 , 106 S. Ct. 2548 , 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 1 ).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enter. Bank v. Magna Bank, 92 F.3d 743 , 747 (8th Cir. 1996). The nonmoving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Krenik v. Cnty. of Le Sueur, 47 F.3d 953 , 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 256 , 106 S. Ct. 2505 , 91 L. Ed. 2d 202 (1986).
B. Fourteenth Amendment Claims
In the Third Amended Complaint, Plaintiffs raise several challenges to MSOP and the MCTA under the Fourteenth Amendment to the United States Constitution. (See, e.g., Third Am. Compl. at 6-7.) Plaintiffs base their challenges on a multitude of policies, procedures, and conditions of confinement that they claim, when considered in total, violate their Fourteenth Amendment due process rights.

1. Section 253D Facial and As-Applied Claims
Plaintiffs assert in Counts I and II that Minn. Stat. § 253D is "unconstitutional as written and as applied" because the nature and duration of commitment under the statute is not reasonably related or narrowly tailored to the purpose of confinement. ( Id. at 1.) Plaintiffs argue that "[g]iven the abject failure of [MSOP] to fulfill its constitutional and statutory mandate to treat and reintegrate Plaintiffs back into society, this Court should declare the statute — on its face and as applied — unconstitutional as a matter of law." (See Doc. No. 741 at 1.)
First, with respect to their facial challenge, Plaintiffs argue that they "face a completely dysfunctional statutory reduction in custody process." ( Id. at 10.) Plaintiffs present evidence that the statute does not contain a requirement for any independent periodic risk assessments; does not contain a requirement that the State petition for a reduction in custody for committed individuals who meet the statutory requirements for such a reduction in custody; does not contain a requirement for the discharge of committed individuals who are no longer dangerous and/or no longer [*8] in need of inpatient treatment for a sexual disorder; and does not contain a requirement for a judicial by-pass in the reduction in custody process. (See id. at 10-21 (citing Minn. Stat. § 253D ; Minn. Stat. § 253B.03 , subd. 5); see also, e.g., OLA Report at 16; Task Force Report at 16; Puffer Dep. at 21, 58; Gustafson Decl. ¶ 31, Ex. 29 ("Barry Dep.") at 101; Gustafson Decl. ¶ 89, Ex. 87 ("2013 Brand E-mail") at 3-5; Doc. No. 756 ("Thuringer Decl.") ¶ 18.)
Defendants contend that they are entitled to summary judgment with respect to Plaintiffs' facial challenge because "Chapter 253D clearly meets due process standards." (Doc. No. 721 at 70.) Defendants assert that "Plaintiffs' claimed deficiencies could never amount to violations of Substantive Due Process" because "[t]he statute has been deemed constitutional by previous courts and Plaintiffs are unable to mount a factual or legal attack on its application to them." ( Id. at 73.) Defendants further assert that "[t]he statute also features significant Procedural Due Process for MSOP clients wishing to petition for discharge." ( Id. at 74.)
Plaintiffs, on the other hand, argue that Defendants' motion for summary judgment should be denied because "Defendants have not shown sufficient undisputed material facts demonstrating that Minn. Stat. § 253D is narrowly tailored to the purposes of protecting the public and providing treatment to Class members." (Doc. No. 741 at 18.) Plaintiffs further contend that, contrary to Defendants assertions, "[n]o Minnesota state court has faced the question raised here — that Minn. Stat. § 253D fails to provide for periodic, independent assessments, to make sure a committed individual continues to meet the criteria for confinement or whether the discharge criteria, on the statute's face, are reasonably related to the purposes of confinement." ( Id. at 19.) Finally, Plaintiffs argue that "Minn. Stat. § 253D is unconstitutional in all applications because it fails, on its face, to require regular independent risk assessments and makes no provision for a judicial bypass to the reduction in custody process." ( Id. at 20 (citing Barry Dep.).)
The Court concludes that Defendants have failed to demonstrate that they are entitled to judgment as a matter of law with respect to Plaintiffs' facial challenge to section 253D. See Enter. Bank, 92 F.3d at 747 . The record before the Court indicates that, at a minimum, Plaintiffs have presented sufficient evidence to allow a reasonable factfinder to conclude that the statute is unconstitutional on its face. (See, e.g., Thuringer Decl. ¶ 18; Doc. No. 753 ("Noyer Decl.") ¶ 16; 706 Report at 6, 33, 86; Johnston Dep. at 10-11; Gustafson Decl. ¶ 33, Ex. 31 ("Fox Dep."), at 141-42; Barry Dep. at 101-02.) Therefore, the Court denies Defendants' motion for summary judgment with respect to Count I.
Second, with respect to their as-applied challenge, Plaintiffs contend that the application of section 253D to Plaintiffs and Class Members is unconstitutional under the Due Process Clause. (See Third Am.

Compl. at 60-64.) Specifically, Plaintiffs contend that the statute is unconstitutional because: (i) its application to Plaintiffs and Class Members is punitive, [*9] not therapeutic, in nature; (ii) Defendants do not provide periodic independent reviews or regular internal reviews of Plaintiffs and Class Members; (iii) Defendants do not automatically petition for a reduction in custody or the discharge of committed individuals who meet the statutory requirements for such a reduction in custody or who are no longer dangerous and/or in no longer need of inpatient treatment for a sexual disorder; (iv) Defendants do not provide an assessment at the time the individual is first civilly committed to MSOP to determine what phase of the treatment program or facility the individual should be placed in; and (v) Defendants do not provide a less restrictive alternative to confinement at a MSOP secure facility. (See id.)
Defendants argue that they are entitled to summary judgment for Plaintiffs' as-applied challenges because "[t]he evidence affirms that DHS and MSOP officials have applied the statute correctly and Plaintiffs received due process." (Doc. No. 721 at 74.) Defendants contend that DHS officials "follow the procedures in the statute" and that "Plaintiffs cannot point to any procedural irregularities." ( Id. at 75.)
Plaintiffs, on the other hand, contend that Defendants' motion for summary judgment should be denied with respect to Count II because "it is clear that Defendants have failed to meet their burden of demonstrating that there are no genuine issues of material facts in dispute regarding the constitutionality of Minn. Stat. § 253D as it is applied." (Doc. No. 741 at 24.) Plaintiffs assert in part that, "issues relating to the risk assessments, or lack thereof, and the improper application of the []risk tools, raise genuine issues of material fact as to whetherMinn. Stat. § 253D is unconstitutional as applied." ( Id. at 31.) For example, Plaintiffs argue that evidence of MSOP's failure to conduct regular risk assessments "alone is sufficient to create a genuine issue of material fact as to whether the statute is being applied unconstitutionally." ( Id. at 27; see also 706 Report at 11-22, 33; OLA Report at 56; Task Force Report at 3-4.)
As discussed more in depth below in section II.B.3, the Court concludes that Defendants have failed to meet their burden of showing that there are no genuine issues of material fact for trial. See Enter. Bank, 92 F.3d at 747 . The record before the Court indicates that, at a minimum, Plaintiffs have presented sufficient evidence to allow a reasonable factfinder to conclude that the statute is unconstitutional as applied. (See, e.g., Doc. No. 749 ("Gamble Decl."); Foster Decl.; Gustafson Decl. ¶ 19, Ex. 17 ("Benson Dep."), at 183-85; Gustafson Decl. ¶ 25, Ex. 23 ("Berg Dep."), at 17; Barry Dep. at 64; 706 Report at 1123, 33, 40, 77.) Therefore, the Court denies Defendants' motion for summary judgment with respect to Count II.
2. Failure to Provide Treatment Claims
Counts III, IV, and XI of Plaintiffs' Third Amended Complaint assert various claims related to the right to treatment. (See Third Am. Compl. at 64-67, 79-80.) Count III, in essence, alleges that Defendants have violated Plaintiffs' Fourteenth Amendment substantive due process right [*10] to treatment. (See id. at 6466.) 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." ( Id. at 80.) Rather than progressing through the phases of treatment, Plaintiffs remain "in the first two phases of treatment for years." ( Id.) In sum, Plaintiffs argue 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. (See generally id. at 64-66.)

The parties dispute the applicable legal standard for Plaintiffs' inadequate treatment claims. Defendants contend that the proper standard is whether MSOP's treatment of a particular patient "shocks the conscience." (See Doc. No. 721 at 47 (citing Strutton v. Meade, 668 F.3d 549 , 557-58 (8th Cir. 2012)16).) Plaintiffs contend that the "professional judgment standard" should apply in analyzing whether their due process rights were violated. (See Doc. No. 741 at 44-45 (citing Youngberg v. Romeo, 457 U.S. 307 , 32022 , 102 S. Ct. 2452 , 73 L. Ed. 2d 28 (1982)17).)
The Court concludes that the record contains evidence that could support a finding for Plaintiffs under either standard. (See, e.g., Hébert Aff. ¶¶ 16-19, 125; Puffer Dep. at 130-32; 706 Report at 8, 26, 40, 5354, 59; Berg Dep. at 15; Gustafson Decl. ¶ 9, Ex. 7 ("Barbo Dep.") at 49; Fox Dep. at 149; Gustafson Decl. ¶ 36, Ex. 34 ("Wilson Dep.") at 5.) Even assuming, without deciding, that the Strutton "shocks the conscience" standard applies to Plaintiffs' right to treatment claims, when taken together with Plaintiffs' evidence regarding the punitive nature of confinement and the lack of meaningful opportunity for release, Plaintiffs have, at a minimum, raised a genuine issue of material fact as to whether state action with respect to the class members committed to MSOP is "truly conscience-shocking." See Strutton, 668 F.3d at 556 .
To the extent Plaintiffs assert that any inadequate treatment or failure to treat amounts to a violation of a Minnesota statute or court order in Counts IV and XI, Plaintiffs' claims also survive summary judgment for similar reasons. In Count IV, Plaintiffs allege a statutory violation of the right to treatment. (See Third Am. Compl. at 66-67.) Specifically, Plaintiffs contend that Defendants have unreasonably failed to provide Class Members with "proper care and treatment, best adapted, according to contemporary professional standards, to rendering future supervision unnecessary" in contravention of the MCTA.18 ( Id. at 67 (quoting Minn. Stat. § 253B.03 , subd. 7).) Similarly, Count XI asserts that Plaintiffs "are not receiving adequate treatment," contrary to the judicial determination that, as SPPs or SDPs, they "must enter a secure treatment facility" for the purpose of receiving "[*11] proper sex offender treatment." (See Third Am. Compl. at 79.) Counts IV and XI are supported by the same fundamental facts as Count III, which Plaintiffs argue shows a pervasive denial of proper treatment at MSOP. According to Plaintiffs, such a systemic failure is not only inconsistent with due process, but is also contrary to statutory standards and corresponding judicial orders governing civil commitment. (See id. at 64-67, 79-80.)
The Court concludes that Defendants have failed to meet their burden of showing that there are no genuine issues of material fact pertaining to Plaintiffs' inadequate treatment claims. See Enter. Bank, 92 F.3d at 747 . Noting the concerns and recommendations raised in the 706 Report, OLA Report, MPET Report, and Task Force Report, and construing the facts in the light most favorable to the nonmoving party, the Court finds that, at a minimum, Plaintiffs have presented sufficient evidence to survive a motion for summary judgment. As such, summary judgment with respect to Counts III, IV, and XI is denied.
3. Claims Pertaining to Punitive Nature of Confinement
At the heart of Plaintiffs' Third Amended Complaint 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. In Counts II, V, VI, and VII, Plaintiffs contend that Defendants have denied Plaintiffs and Class Members their substantive due process rights to less restrictive alternative confinement and to be free from punishment and inhumane treatment. (See Third Am. Compl. at 60-61, 67-73.) Repeatedly throughout their Third Amended 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." (See, e.g., id. at 64-65.) Plaintiffs maintain that "[c]onfinement that continues after the person no longer meets the statutory requirements for commitment violates due process." ( Id. at 64-65, 71.)
Indefinite commitment to MSOP constitutes a "significant deprivation of liberty" that infringes upon one's fundamental right to be free from confinement, and therefore requires due process protection. See Jones v. United States, 463 U.S. 354 , 361 , 103 S. Ct. 3043 , 77 L. Ed. 2d 694 (1983); 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, such as combining legislative and executive action, to indefinitely confine a class of citizens in detention facilities like the MSOP facilities, the government action must be narrowly tailored to serve a compelling state interest in order [*12] to pass constitutional muster.19 SeeGallagher 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 will, after receiving all evidence at trial, 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 , 42627 , 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, 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). 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); see also Jackson v. Indiana, 406 U.S. 715 , 738 , 92 S. Ct. 1845 , 32 L. Ed. 2d 435 (1972). In Minnesota, as provided by statute, SDPs and SPPs are committed to MSOP for the purpose of treatment, and those individuals 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. Plaintiffs have presented evidence, however, that they have been subjected to conditions of confinement that are potentially punitive in nature and are antithetical to the purpose of their commitment.

With respect to the duration of a civil commitment, "[*13] 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 . Accordingly, 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 (stating that under the Supreme Court's ruling in Jones, a "committed acquittee may be held as along as he is both mentally ill and dangerous, but no longer"). As a matter of due process, it is "unconstitutional for a State to continue to confine a harmless, mentally ill person."20 Id. 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 ). Under 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 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.21 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 to an as-applied22 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 "asapplied" analysis to be "unworkable" in that context because "[s]uch an analysis would never conclusively resolve [*14] 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").23
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. (See generally Third Am. Compl.) Under such conditions, which are supported by facts presented by Plaintiffs, it appears that MSOP may very well be serving the constitutionally impermissible purposes of retribution and deterrence. (See, e.g., 706 Report at 50-60; OLA Report at 75-82.) 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' challenges.
With respect to less restrictive alternatives, in Count VI, Plaintiffs allege that MSOP "does not provide for a less restrictive alternative to confinement at a MSOP secure facility." (Third Am. Compl. at 18.) According to Plaintiffs, "[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."24 ( Id.) Plaintiffs claim that MSOP's failure to provide a less restrictive alternative to confinement at those secure facilities violates due process. (See generally id. at 70-72.) Plaintiffs further note that MSOP, as implemented, fails to account for the fact that not all class members "have the same level of security needs." ( Id. at 71.) Additionally, Plaintiffs observe that if a resident "no longer meets the statutory requirements for civil commitment, there is no less restrictive facility or program for [him or her] to enter." ( Id.) Moreover, Plaintiffs also argue that even if there was such a less restrictive facility or program for a resident to enter, "there is no judicial bypass available that could provide prompt relief" for residents that no longer satisfy the commitment criteria. ( Id. at 10.)
The Court concludes that Defendants have failed to meet their burden of showing that there is no genuine dispute of material fact to warrant summary judgment on Plaintiffs' punitive nature of confinement claims. SeeEnter. Bank, 92 F.3d at 747 . The record before the Court indicates that Plaintiffs have presented sufficient evidence to allow a reasonable factfinder to conclude that the civil commitment system is unconstitutionally punitive in nature. (See, e.g., Doc. No. 743 ("Barber Decl.") ¶ 32; Doc. No. 755 ("Steiner Decl.") ¶ 32; 706 Report at 50; Rybroek Report; Gustafson Decl. ¶ 16, Ex. 14 ("Cauley Report") at 67; Carabello Dep. at 35; Benson Dep. at 190.) Therefore, the Court denies Defendants' motion insofar as it seeks dismissal of Counts II, V, VI, and VII.
C. First Amendment Claims
In Counts VIII [*15] and IX, respectively, Plaintiffs assert that Defendants have impinged upon their right to religious freedom and have unreasonably restricted Plaintiffs' freedom of speech and association in violation of the First Amendment. (See Third Am. Compl. at 74-76.)
1. Count VIII
In order to succeed on a claim asserted under the Free Exercise Clause of the First Amendment, Plaintiffs must ultimately establish that the challenged regulations place a "substantial burden" on Plaintiffs' ability to practice their religion. See Patel v. U.S. Bureau of Prisons, 515 F.3d 807 , 813 (8th Cir. 2008); see also Weir v. Nix, 114 F.3d 817 , 820 (8th Cir. 1997) ("[A] person claiming that a governmental policy or action violates his right to exercise his religion freely must establish that the action substantially burdens his sincerely held religious belief."). To substantially burden one's free exercise of religion, a regulation must: (1) "significantly inhibit or constrain conduct or expression that manifests some central tenet of a person's individual religious beliefs"; (2) "meaningfully curtail a person's ability to express adherence to his or her faith"; or (3) "deny a person reasonable opportunities to engage in those activities that are fundamental to a person's religion." Patel, 515 F.3d at 813 (quoting Murphy v. Mo. Dep't of Corr., 372 F.3d 979 , 988 (8th Cir. 2004)).
Defendants maintain that they are entitled to summary judgment on Plaintiffs' freedom of religion claim because Plaintiffs have not identified specific instances in which any class member's "sincere religious belief" was "substantially infringed" by a MSOP policy or practice. (See Doc. No. 721 at 56-57.)
Plaintiffs argue that "based on the policy and procedures created and implemented by Defendants, they are violating Plaintiffs' and Class members' rights to religious freedom through the MSOP's policies, procedures, and practices." (Doc. No. 741 at 74.) Plaintiffs further argue that their free exercise claim "should not be dismissed on summary judgment [] because disputed material facts are present." ( Id. at 75.) Plaintiffs contend that the record is replete with examples of how MSOP's policies and practices restrict Plaintiffs "in when and where they may worship" and "limit Plaintiffs' ability to practice their sincerely held religious beliefs." ( Id. at 88-89.) For example, Plaintiffs present evidence that named

Plaintiffs and Class Members were denied "the use of unit team rooms for regular religious studies that had been occurring for years," ( id. at 74 (citing Doc. No. 724 ("Brennaman Aff.") ¶ 19, Ex. 18 ("Pls. Third Supp. Resp. to Defs. Interrog."))), and that a named Plaintiff "received a [behavioral expectation report] for practicing his religion and having his bible out in a group room" (id. (citing Doc. No. 748 ("Foster Decl.") ¶ 34).) Plaintiffs argue that such policies and practices "are not related to a legitimate institutional or therapeutic interest" and thus constitute unreasonable restrictions on Plaintiffs' First Amendment rights. (Doc. No. 741 at 75.)
The Court concludes that Defendants have failed to meet their burden of proving that there are no [*16] genuine issues of material fact for trial. See Enter. Bank, 92 F.3d at 747 . The record before the Court indicates that Plaintiffs have presented sufficient evidence to support their free exercise claim and to proceed to trial. (See, e.g., Gustafson Decl. ¶ 77, Ex. 75 ("Daywitt Dep."), at 239-40; Gustafson ¶ 76, Ex. 74 ("DeVillion Dep.") at 212; Gustafson Decl. ¶ 46, Ex. 44 ("Bolte Dep."), at 271, 285; Gluek Decl. ¶ 11, Ex. 9 ("Barber Dep.") at 11.) Therefore, the Court denies Defendants' motion for summary judgment with respect to Count VIII.25
2. Count IX
The right to free speech includes "the right to utter or to print, . . . the right to distribute, the right to receive, the right to read," and the freedom to exercise inquiry and thought. Griswold v. Connecticut, 381 U.S. 479 , 482 , 85 S. Ct. 1678 , 14 L. Ed. 2d 510 (1965). The right of association includes "more than the right to attend a meeting; it includes the right to express one's attitudes or philosophies by membership in a group or by affiliation with it or by other means." See id. at 483 . Although civilly committed individuals are entitled to these First Amendment protections, "[a]ny form of involuntary confinement, whether incarceration or involuntary commitment, may necessitate restrictions on the right to free speech." Beaulieu v. Ludeman, 690 F.3d 1017 , 1039 (8th Cir. 2012).
Defendants argue that they are entitled to summary judgment on Count IX based on Turner v. Safley, 482 U.S. 78 , 107 S. Ct. 2254 , 96 L. Ed. 2d 64 (1987). (See Doc. No. 721 at 57-58; see also Turner, 482 U.S. at 89 ("[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests."26).) Plaintiffs dispute the applicability of Turner, which relates to claims asserted by prisoners, and argue that any First Amendment restrictions on civilly committed individuals "must be reasonably related to 'legitimate therapeutic or institutional interests.'" (Doc. No. 741 at 74 (quotingIvey v. Mooney, Civ. No. 05-2666, 2008 U.S. Dist. LEXIS 75975 , 2008 WL 4527792 , at *10 (D. Minn. Sept. 30, 2008)).) However, Plaintiffs contend that Count IX should not be dismissed on summary judgment under either standard because genuine issues of material fact exist. (See Doc. No. 741 at 75-76.)
Plaintiffs assert that Defendants have unreasonably restricted Plaintiffs' rights to free speech and free association. (Third Am. Compl. at 76-77.) Plaintiffs contend that "based on the policy and procedures created and implemented by Defendants, they have limited Plaintiffs' and Class members' access to certain newspapers and magazines and remove or censor articles from the newspapers and magazines that are provided" and have "limited the ability of Plaintiffs and Class members to use the phone by charging a prohibitively high amount for phone use." ( Id. at 76.) Plaintiffs also contend that Defendants have restricted Plaintiffs' freedom to associate with one another by "limiting contact among Plaintiffs and Class members, as well as other patients." ( Id.) As with their freedom of religion claim, Plaintiffs maintain that such restrictions "are not related to a legitimate institutional or therapeutic interest." ( Id. at 77.)
Regardless of the applicable standard, [*17] the Court determines that there is a material dispute of fact and law to preclude granting summary judgment in Defendants' favor on Plaintiffs' Count IX freedom of

speech and association claims. See Enter. Bank, 92 F.3d at 747 . Moreover, considering Plaintiffs' claims with respect to restrictions on their ability to freely associate and speak and in light of all of Plaintiffs' allegations regarding their conditions of confinement, the Court finds that Plaintiffs have presented sufficient evidence to support a claim that survives summary judgment. (See, e.g., Bolte Dep. at 305-06; Gustafson Decl. ¶ 62, Ex. 60 ("Noyer Dep."), at 161-66; Gustafson Decl. ¶ 68, Ex. 66 ("Thuringer Dep."), at 12; Gustafson Decl. ¶ 55, Ex. 53 ("Michaels Dep."), at 12.) Accordingly, the Court denies Defendants' motion insofar as it seeks summary judgment on Count IX of Plaintiffs' Third Amended Complaint.27
D. Unreasonable Search and Seizure Claim
Plaintiffs assert several Fourth Amendment challenges against Defendants in Count X of their Third Amended Complaint. (Third Am. Compl. at 77-79.) Plaintiffs challenge Defendants' "use of restraints," "random cell searches," daily "window checks," "strip searches," and "random pat downs." ( Id. at 46-47, 78.)
Under the Fourth Amendment, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV . "Involuntarily civilly committed persons retain the Fourth Amendment right to be free from unreasonable searches that is analogous to the right retained by pretrial detainees." Arnzen v. Palmer, 713 F.3d 369 , 372 (8th Cir. 2013) (quoting Beaulieu, 690 F.3d at 1017 ). To determine "reasonableness" in an institutional setting, a court must balance "the need for the particular search against the invasion of personal rights that the search entails." Bell v. Wolfish, 441 U.S. 520 , 558-59 , 99 S. Ct. 1861 , 60 L. Ed. 2d 447 (1979). In applying this balancing test, a court must consider: (1) the scope of the particular intrusion; (2) the manner in which the search is conducted; (3) the justification for initiating the search; and (4) the place in which the search is conducted. See id. at 559 ; Serna v. Goodno, 567 F.3d 944 , 949 (8th Cir. 2009) (quoting the Bell balancing test). A court must defer to the judgment of the correctional (or institutional) officials "unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of institutional security." Arnzen, 713 F.3d at 373 (quoting Beaulieu, 690 F.3d at 1029 ).
Defendants argue that they are entitled to summary judgment on Defendants' unreasonable search and seizure claim because the claim is unsupported by facts or law. (See Doc. No. 721.) In support of this argument, Defendants contend that: (1) the Supreme Court in Bell recognized the constitutionality of a similar type of room searches as used by MSOP employees, which "are designed to deter the possession of contraband and preserve a safe, secure, and therapeutic environment for MSOP staff and clients" ( id. at 51); (2) the District Court in Semler v. Ludeman, No. 09-0732, 2010 U.S. Dist. LEXIS 1571 , 2010 WL 145275 , at *6, *16-19 (D. Minn. [*18] Jan. 8, 2010) upheld the constitutionality of MSOP's room search and pat-search policies (Doc. No. 721 at 51); and (3) the Eighth Circuit in Beaulieu upheld MSOP's unclothed visual body searches and MSOP's policy regarding the use of restraints ( id. at 55). Relying on these cases, Defendants maintain that MSOP's search policies are related to legitimate safety and security concerns, and, therefore, Plaintiffs' Fourth Amendment claims should be dismissed because any searches were reasonable. (See id. at 53-55.)
Plaintiffs, on the other hand, contend that summary judgment should be denied with respect to their Fourth Amendment claim. Plaintiffs maintain that "[n]one of the cases cited by Defendants relating to decisions regarding specific search and seizure policies at the MSOP addressed whether the policies were appropriately applied to all MSOP patients or whether application on an individual basis would be less restrictive." (See Doc. No. 741 at 77.) Plaintiffs further contend that, although it is true that specific policies and practices of MSOP viewed in isolation have been found constitutional, "it is these policies and practices in combination rather than in isolation that renders the MSOP punitive as it is applied, along

with the fact that they are applied uniformly to all Plaintiffs without regard for individual treatment needs or risk levels." (See id. at 82.)
The Court concludes that a material dispute of fact exists to preclude summary judgment on Plaintiffs' Count X unreasonable search and seizure claim. See Enter. Bank, 92 F.3d at 747 . Considering Plaintiffs' Fourth Amendment claim in conjunction with other evidence presented by Plaintiffs surrounding the punitive nature of their confinement, the Court determines that a genuine issue of material fact exists as to whether the search policies in this case are reasonable and appropriate. (See, e.g., DeVillion Dep. at 21011; Gustafson Decl. ¶ 71, Ex. 69 ("Braun Dep."), at 74, 77; Barber Dep. at 147; Noyer Dep. at 159-60, 166, 171-72; Gustafson Decl. ¶ 64, Ex. 62 ("Gamble Dep."), at 203.) As such, the Court denies Defendants' motion insofar as it seeks summary judgment with respect to Count X.
E. Contract-Related Claims
In Counts XII and XIII of their Third Amended Complaint, Plaintiffs assert claims of breach of contract, and tortious interference with contract, respectively, against Defendants Jesson, Benson, Moser, Lundquist, Johnston, and Hébert related to their alleged failure to provide adequate treatment.28 (See Third Am. Compl. at 80-84.) Plaintiffs, in essence, argue that those Defendants "actively participated in and supported the inadequate treatment policies as implemented by MSOP, which resulted in the failure to comply with contract[s] to provide treatment by MSOP." ( Id. at 81, 84.)29 Plaintiffs base their claims on a one-page signed document entitled, "Consent for Participation in Sex Offender Treatment," which provides, among other things:
[T]hat the patient's therapist has discussed the course of treatment at the MSOP, that the patient received information about the levels of care and stages of treatment, [][*19] the patient has received the goals and behavioral expectations at the MSOP, that upon completion of treatment the MSOP will support their petition for provisional discharge, that each stage of treatment has specific goals and behavioral expectations, that services such as education and vocation are provided . . . .
( Id. at 19-20; Doc. No. 742 ("Gluek Decl.") ¶ 30, Ex. 28 ("Consent for Treatment").)
Defendants argue that they are entitled to summary judgment on Plaintiffs' breach of contract claims because Counts XII and XIII are not actionable under Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 ,104 S. Ct. 900 , 79 L. Ed. 2d 67 (1984), because such claims would "conflict[] directly with the principles of federalism that underlie the Eleventh Amendment." (See Doc. No. 721 at 76-77 (citing Pennhurst, 465 U.S. at 90 ).) Defendants further argue that summary judgment should be granted on Plaintiffs' breach of contract claims because there was no enforceable contract. ( Id.) Specifically, Defendants contend that "Plaintiffs provided no legal consideration" because "[t]he consent form gives clients the option to choose to either participate or not participate in treatment." ( Id.) Defendants maintain that "[w]ithout a contract, Plaintiffs' contract and tortious interference claims must fail." ( Id.)
Plaintiffs maintain that Defendants have failed to meet their burden in showing that there is no genuine issue of material fact in dispute with respect to Counts XII and XIII. (See Doc. No. 741 at 96.) Plaintiffs argue that because they "identified genuine issues of material fact as to whether the MSOP's treatment program provides the treatment contemplated by the treatment contract signed by Plaintiffs," Defendants' motion for summary judgment should be denied. ( Id. at 97.)

For similar reasons discussed above with respect to Plaintiffs' inadequate treatment claims, the Court concludes that the evidence presents a genuine issue of material fact to preclude summary judgment on Plaintiffs' breach of contract and tortious interference claims. See Enter. Bank, 92 F.3d at 747 . Therefore, the Court denies Defendants' motion for summary judgment with respect to Counts XII and XIII.
CONCLUSION
The Court and the parties can perhaps agree that this case is multifaceted. However, whether the parties deem this case multifaceted or not, we are at a constitutional crossroad. The question and challenge to each party before this Court is what will be their next step.
Not only does this case address the rights of those populations in our society that are most disliked and feared (and a number of individuals who are vulnerable), but it also heightens the concerns and fears of the public at large.
As this Court has previously stated in its February 19, 2014 Order, as an Assistant County Attorney who prosecuted many sexual assault and child sexual abuse cases, and as a former Minnesota State Judge who handled many such cases, the undersigned is sensitive to the interests of all individuals affected by this case, which includes not only the public at large30 and the Class Members, but also family members [*20] of MSOP residents and victims and family members of victims of the community, as well as all citizens of the State of Minnesota. (See Doc. No. 427 at 67.) Moreover, the record before the Court highlights both the best and the worst of the three branches of our government. At a minimum, the evidence has shown that, to date, the executive and legislative branches in Minnesota have let politics, rather than the rule of law and the rights of "all" of their citizens guide their decisions. In a situation such as this, the federal court may have to step in to protect the rights of Plaintiffs. See United States v. Will, 449 U.S. 200 , 218 , 101 S. Ct. 471 , 66 L. Ed. 2d 392(1980) (stating that the role of an Article III judge is to safeguard a litigant's "right to have claims decided by judges who are free from potential domination by other branches of government").
However, regardless of the claims raised in this case, and irrespective of the Court's ultimate rulings on any constitutional questions with which it is presented, the interests of justice require that substantial changes be made to Minnesota's sex offender civil commitment scheme. In the context of Governor Mark Dayton's recent budget proposal and the Minnesota legislature's recent introduction of a bill to modify provisions related to the MCTA and MSOP, the Court observes that the State of Minnesota is presented with a unique opportunity to address and resolve the problems that not only Plaintiffs, but many others, including experts, auditors, and others knowledgeable on the subject, have identified in MSOP, which the state should not ignore. Furthermore, many of the systemic problems that Plaintiffs have identified, such as the lack of independent periodic risk assessments, may be implemented without legislative action and without any costs to taxpayers, as confirmed in the OLA Report and the Task Force Report. This is especially the case, given the fact that the parties could agree to prioritize the evaluation of Class Members, starting with, for example, the most vulnerable Class Members, such as the elderly, the severely mentally ill, those with cognitive limitations, and those with no adult convictions.
It is difficult for the Court to understand why the parties have not resolved this case in a manner that would address clients' concerns, serve the public interest, promote public safety, and serve the interests of justice for all concerned. Justice requires no less.

ORDER
Based upon the foregoing, and the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendants' Partial Motion to Dismiss the Third Amended Complaint (Doc. No. [651]) is DENIED.
2. Defendants' Motion for Summary Judgment (Doc. No. [719]) is DENIED.
Date: February 2, 2015
/s/ Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
fn 1
The Court's concluding remarks may also be found below. See infra Conclusion. fn 2
"Sexually dangerous person" is defined as a person who: "(1) has engaged in a course of harmful sexual conduct as defined in subdivision 8; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 8." Minn. Stat. § 253D.02 , subd. 16. fn 3
"Sexual psychopathic personality" is defined as "the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which renders the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person's sexual impulses and, as a result, is dangerous to other persons." Minn. Stat. § 253D.02 , subd. 15. fn 4
"Secure treatment facility" is defined as "the Minnesota sex offender program facility in Moose Lake and any portion of the Minnesota sex offender program operated by the Minnesota sex offender program at the Minnesota Security Hospital, but does not include services or programs administered by the Minnesota sex offender program outside a secure environment." Minn. Stat. § 253D.02 , subd. 13. fn 5
Plaintiffs challenge the adequacy and effectiveness of MSOP's three-phase treatment program, which they describe as "preventative detention under the guise of treatment." (See Third Am. Compl. at 1-2,

49, 96.) Plaintiffs' challenges are bolstered by critical findings in the OLA Report and the 706 Expert Report with respect to the treatment program. (See, e.g., Gustafson Decl. ¶ 4, Ex. 1 ("OLA Report"), at 12 (finding that "MSOP has struggled to provide adequate treatment and maintain a therapeutic environment"); Doc. No. 658 ("706 Report") at 13 (finding that "MSOP['s] climate is characterized by high levels of learned helplessness and hopelessness, both on the part of the clients and the staff").) fn 6
According to Plaintiffs, MSOP does not conduct any assessment or evaluation of residents to consider the appropriate initial treatment placement phase or location. (See Doc. No. 741 at 3.) fn 7
Plaintiffs contend that in Phase One, residents "learn how to comply with the MSOP facility's rules and learn basic treatment concepts," but receive "[n]o sex offender-specific treatment whatsoever." (Third Am. Compl. at 20; see also OLA Report at 76 (reporting that residents may be stuck in Phase One, which focuses on following rules and learning how to participate in treatment groups rather than addressing the resident's sexual offenses or how to prevent re-offending).) fn 8
According to Plaintiffs, the alleged unconstitutional detainment of residents occurs, in part, because "there are no risk assessments performed (independent or otherwise) at the time of initial commitment or on a regular periodic basis during Plaintiffs' commitment" and because "the risk assessments that are provided are often performed inappropriately and may be biased." ( Id. at 26; see also Doc. No. 427 at 55-56 n.41.) fn 9
This number, per capita, is "significantly higher than any other SOCC [sexual offender civil commitment] state." (706 Report at 74-75.) Of the 721 confined individuals, "there are 23 clients with severe mental health conditions" ( id. at 15) and "there are 62 individuals confined in []MSOP who have no adult criminal convictions for sexual offenses and are committed due to behavior they engaged in solely as juveniles" ( id. at 11). fn 10
"In 2010, Minnesota had more civilly committed sex offenders than every state except California and Florida." ( Id.) fn 11
Plaintiffs contend, and Defendants do not dispute, that "[o]nly three individuals have been provisionally discharged, and one [discharge] was immediately revoked." ( Id. at 2.) According to Plaintiffs, "to date, MSOP has never supported a petition for full discharge." ( Id. at 8.) Defendants offer no explanation for these statistics in their briefs. (See Doc. No. 653; Doc. No. 721.) fn 12
The state employee defendants now include: Lucinda Jesson, the Commissioner of DHS; Dennis Benson, the Executive Director of MSOP from 2008 to 2012 and a member of the clinical team; Kevin Moser, the Director of MSOP; Tom Lundquist, the Clinical Director of MSOP; Nancy Johnston, the Executive Director of MSOP; Jannine Hébert, the Executive Clinical Director of MSOP; and Ann Zimmerman, the Security Director of MSOP. (Doc. No. 635 ("Third Am. Compl.") at 10-12.)

fn 13
Commissioner Jesson announced that she would recommend the approval of the transfer requests of six individuals with intellectual disabilities from MSOP's Moose Lake facility to the Minnesota Specialty Health System facility in Cambridge, Minnesota. See Rupa Shenoy, Some Sex Offenders Could Go to Less Secure Setting, MPR News (Sept. 12, 2013), http://www.mprnews.org/story/2013/09/12/sexoffenders-could-go-to-less-secure-setting. fn 14
In its February 19, 2014 Order, the Court denied Defendants' motion with respect to all counts except for Plaintiffs' equal protection claim. (See Doc. No. 437 at 69-70.) fn 15
In their reply brief, Defendants broadly assert that "the named Plaintiffs' apparent inability or unwillingness to establish any injury to themselves is fatal to their claims" under doctrines of standing. (See Doc. No. 760 at 2-3.) The Court finds that Plaintiffs have presented sufficient evidence to establish injury in fact for the purposes of determining standing in this case. See Lujan v. Defenders of Wildlife, 504 U.S. 555 , 561 , 112 S. Ct. 2130 , 119 L. Ed. 2d 351 (1992) (noting that to support standing at the summary judgment stage, a plaintiff must only "set forth by affidavit or other evidence specific facts which for purposes of the summary judgment motion will be taken as true"). fn 16
In Strutton, the Eighth Circuit assessed whether the challenged state action was "so arbitrary or egregious as to shock the conscience" and concluded that the plaintiff "[did] not have a fundamental due process right to sex offender treatment." Strutton, 668 F.3d at 557-58 . fn 17
In Youngberg, the Supreme Court analyzed whether the state action at issue 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." Youngberg, 457 U.S. at 323 . The Supreme Court held that under the Fourteenth Amendment, "civilly committed individuals 'enjoy constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by the interests." Id. at 324 .
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 Strutton, the Eighth Circuit concluded that the Youngberg standard did not apply to the plaintiff's treatment-related claims.Strutton, 668 F.3d at 557 . However, as this Court has noted in previous orders, "the right to treatment claim in Strutton invoked a slightly different statutory mandate" (Doc. No. 427 at 27 n.25 (citing Strutton, 668 F.3d at 557 )), and "the plaintiff's claims [in Strutton] 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" (Doc. No. 427 at 24 (citing Strutton, 668 F.3d at 558 )). fn 18
The MCTA guarantees civilly committed individuals a right to treatment consistent with contemporary professional standards. See Minn. Stat. § 253B.03 , subd. 7 ("A person receiving services under this

chapter has the right to receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary."). Plaintiffs have raised a genuine issue of material fact as to whether the treatment provided to them at MSOP satisfies the standard mandated by statute because they present evidence that, for example, MSOP has failed to appropriately progress Plaintiffs through treatment. (See, e.g., 706 Report at 37, 44; MPET Report at 4.) fn 19
n19 Sacramento v. Lewis distinguishes between the substantive due process standard applied to "abusive executive action" directed at an individual, such as the use of excessive force, and the standard applied to legislation that systematically impinges on a fundamental right. Compare Lewis, 523 U.S. 833 , 847 n.8, 118 S. Ct. 1708 , 140 L. Ed. 2d 1043 (1998) ("[I]n a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience."), with Washington v. Glucksberg, 521 U.S. 702 , 721 ,117 S. Ct. 2258 , 117 S. Ct. 2302 , 138 L. Ed. 2d 772 (1997) ("[T]he Fourteenth Amendment forbids the government to infringe fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.") (internal quotation omitted) (emphasis in original).
In this case, there may be particular actions of the executive (such as the administration of treatment) that may ultimately be analyzed under the "shocks the conscience" standard. Whether the strict scrutiny or the "shocks the conscience" standard applies to a particular claim, however, an allegation of the denial of substantive due process "is to be tested by an appraisal of the totality of facts in a given case." Lewis, 523 U.S. at 850 ; see also id. ("[O]ur concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking."). fn 20
The Court notes that the term "harmless" may have little to no practical significance to treatment professionals tasked with evaluating whether a sex offender "is no longer a danger to himself or society."See Foucha, 504 U.S. at 77 (explaining that a "committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous"). fn 21
Plaintiffs in this case challenge the constitutionality of the relevant statutes based on a "lengthy history of constitutional violations" for an entire class of individuals who experienced a "systemic failure to provide due process rights." (Doc. No. 741 at 2, 45, 95.) fn 22
Justice Thomas, in his concurrence, questioned whether the claim at issue, wherein a committed sex offender "essentially contend[ed] that the actual conditions of confinement, notwithstanding the text of the statute, are punitive and incompatible with the Act's treatment purpose" constituted a veritable "asapplied" challenge. Seling, 531 U.S. at 271 (Thomas, J., concurring). Justice Thomas further stated:
The majority adopts the Ninth Circuit's nomenclature and refers to respondent's claim as an "as-applied" challenge, but that label is at best misleading. Typically an "as-applied" challenge is a claim that a statute, "by its own terms, infringes constitutional freedoms in the circumstances of a particular case." In contrast, respondent's claim is not that [the Act] "by its own terms" is unconstitutional as applied to him, but rather that the statute is not being applied

according to its terms at all.
Id. (citations omitted) (emphasis in original); see id. at 264 (majority opinion).
fn 23
The Court acknowledged, however, that "the particular features of confinement may affect how a confinement scheme is evaluated to determine whether it is civil rather than punitive, but it remains no less true that the query must be answered definitively." Seling, 531 U.S. at 263 . fn 24
Although Defendants argue that Community Preparation Services ("CPS") constitutes a less restrictive alternative to confinement (see, e.g., Hébert Aff. ¶ 85), Plaintiffs point out that residents must complete all three phases of treatment before they become eligible for placement in CPS. (See Doc. No. 741 at 32, 42.) fn 25
However, if the record established at trial is as suggested by Defendants, the Court notes that it is doubtful whether Plaintiffs will prevail on their free exercise clause claims. fn 26
In Turner, the Supreme Court concluded that when determining whether a prohibition on a constitutional right is reasonable, a court must consider four factors: (1) whether prohibiting an inmate from exercising a constitutional right is rationally related to a legitimate governmental interest; (2) whether there are alternative means of exercising the right; (3) what effect accommodation of the interest would have on guards, other inmates, and the allocation of prison resources; and (4) whether there are ready alternatives that would fully accommodate the prisoners' rights at de minimis cost to the valid penological interest. SeeTurner, 482 U.S. at 89-90 . fn 27
However, the Court again observes that, if the record at trial is as Defendants suggest, Plaintiffs are unlikely to prevail on Count IX. fn 28
Count XIII also asserts that those Defendants intentionally violated Minn. Stat. § 253B.03 , subd. 7. (Third Am. Compl. at 84; see id. at 83 (quoting Minn. Stat. § 253B.03 , subd. 7 ("A person receiving services under this chapter has the right to receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary.")).) fn 29
Plaintiffs further claim that those Defendants were aware "of the failure to progress Plaintiffs and [c]lass members through the different treatment phases to the point that they could be conditionally or unconditionally released" and that "the MSOP treatment program as implemented had only conditionally released a single person and had never unconditionally released anyone committed to MSOP." (Third Am. Compl. at 34, 81, 83-84.) fn 30

The Court has received dozens of letters from not only victims and family members of victims of civilly committed individuals, but also from family members of MSOP clients as well as individuals who claim to have experienced MSOP first-hand.

 
 United States Court of Appeals
For the Eighth Circuit ___________________________
No. 15-3485 ___________________________
Kevin Scott Karsjens; David Leroy Gamble; 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
lllllllllllllllllllll Plaintiffs - Appellees
v.
Emily Johnson Piper; Kevin Moser; Peter Puffer; Nancy Johnston; Jannine Hebert; Ann Zimmerman, in their official capacities
lllllllllllllllllllll Defendants - Appellants
------------------------------
Minnesota House of Representatives
lllllllllllllllllllllAmicus on Behalf of Appellant(s)
Eric Steven Janus; American Civil Liberties Union of Minnesota
lllllllllllllllllllllAmici on Behalf of Appellee(s) ____________
Appeal from United States District Court for the District of Minnesota - Minneapolis
____________

Submitted: April 12, 2016 Filed: January 3, 2017 ____________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges. ____________
SHEPHERD, Circuit Judge.
Class plaintiffs, civilly committed sex offenders, bring a facial and as applied challenge under 42 U.S.C. § 1983, claiming their substantive due process rights have been violated by Minnesota’s Civil Commitment and Treatment Act and by the actions and practices of the managers of the Minnesota Sex Offender Program (MSOP). The Minnesota state defendants in this action are managers of MSOP—Emily Johnson Piper, Commissioner of the Minnesota Department of Human Services; Kevin Moser, MSOP Facilities Director at Moose Lake; Peter Puffer, MSOP Clinical Director; Nancy Johnston, MSOP Executive Director; Jannine Herbert, MSOP Executive Clinical Director; and Ann Zimmerman, MSOP Security Director (collectively “state defendants”). After several months of litigation, including a six-week bench trial, the district court found for plaintiffs and entered an expansive injunctive order. The district court applied incorrect standards of scrutiny when considering plaintiffs’ claims, thus we reverse the finding of substantive due process violations and vacate the injunctive relief order. We remand to the district court for further proceedings to address the remaining claims.
I.
A. Minnesota Statutory Structure
In 1994, the Minnesota legislature enacted the Minnesota Civil Commitment and Treatment Act: Sexually Dangerous Persons and Sexual Psychopathic
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Personalities (MCTA). MCTA is now codified at Minnesota Statute § 253D. Under the MCTA, a county attorney in Minnesota may petition a state district court to civilly commit a sexually dangerous person1 or a person with a sexual psychopathic personality2 to a secure treatment facility. Minn. Stat. Ann. § 253D.07(1)-(2). If the county attorney demonstrates by clear and convincing evidence that a person is a sexually dangerous person or has a sexual psychopathic personality, “the court shall order commitment for an indeterminate period of time and the committed person shall be transferred, provisionally discharged, or discharged, only as provided in this chapter.” Minn. Stat. Ann. § 253D(3)-(4). A person subject to commitment under MCTA is entitled to be represented by counsel, and if the person does not provide counsel for himself, the court appoints a qualified attorney to represent the person. Minn. Stat. Ann. § 253D.20.
Once committed under MCTA, a committed person or the executive director of the Minnesota Sex Offender Program may petition for a reduction in custody, which includes “transfer out of a secure treatment facility,3 a provisional discharge,4
1MCTA defines “sexually dangerous person” as “a person who: (1) has engaged in a course of harmful sexual conduct . . . ; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct . . . .” Minn. Stat. Ann. § 253D.02(16).
2MCTA defines “sexual psychopathic personality” as “the existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.” Minn. Stat. Ann. § 253D.02(15).
3“The following factors must be considered in determining whether a transfer [out of a secure treatment facility] is appropriate: (1) the person’s clinical progress and present treatment needs; (2) the need for security to accomplish continuing
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or a discharge from commitment.5” Minn. Stat. Ann. § 253D.27. The petition is “filed with and considered by a panel of the special review board.” Id. These panels consist of “members experienced in the field of mental illness,” including at least one “psychiatrist or a doctoral level psychologist with forensic experience” and one attorney. Minn. Stat. Ann. § 253B.18(4c). The special review board must hold a hearing and “issue a report with written findings of fact and shall recommend denial or approval of the petition to the judicial appeal panel.6” Minn. Stat. Ann. § 253D.27(3), (4). An appeal of the recommendation of the special review board may be made by the committed person, the county attorney, or the commissioner of the Department of Human Services (DHS) to the judicial appeal panel. Minn. Stat. Ann. § 253D.28. At a hearing, the judicial appeal panel receives evidence and makes a de
treatment; (3) the need for continued institutionalization; (4) which facility can best meet the person’s needs; and (5) whether transfer can be accomplished with a reasonable degree of safety for the public.” Minn. Stat. Ann. § 253D.29(1).
4“The following factors are to be considered in determining whether a provisional discharge shall be granted: (1) whether the committed person’s course of treatment and present mental status indicate there is no longer a need for treatment and supervision in the committed person’s current treatment setting; and (2) whether the conditions of the provisional discharge plan will provide a reasonable degree of protection to the public and will enable the committed person to adjust successfully to the community.” Minn. Stat. Ann. § 253D.30(1).
5“A person who is committed as a sexually dangerous person or a person with a sexual psychopathic personality shall not be discharged unless it appears to the satisfaction of the judicial appeal panel, after a hearing and recommendation by a majority of the special review board, that the committed person is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.” Minn. Stat. Ann. § 253D.31.
6“The Supreme Court shall establish an appeal panel composed of three judges and four alternate judges appointed from among the acting judges of the state.” Minn. Stat. Ann. § 253B.19(1).
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novo consideration of the recommendation of the special review board. Id. Appeals of the decision of the judicial appeal panel may be made to the Minnesota Court of Appeals. Id.; Minn. Stat. Ann. § 253B.19(5).
“A committed person may not petition the special review board any sooner than six months following either” the entry of the initial commitment order by the district court or appeal therefrom or resolution of a prior petition including exhaustion of any appeal rights. Minn. Stat. Ann. § 253D.27(2). The MSOP executive director may, however, petition for reduction in custody at any time. Id.
B. Minnesota Sex Offender Program (MSOP)
The State of Minnesota established, under the vested authority of the Commissioner of DHS, the MSOP. Under law, MSOP is to “provide specialized sex offender assessment, diagnosis, care, treatment, supervision, and other services to civilly committed sex offenders . . . [which] may include specialized programs at secure treatment facilities . . . , consultative services, aftercare services, community-based services and programs, transition services, or other services consistent with the mission of the Department of Human Services.” Minn. Stat. Ann. § 246B.02. MSOP maintains three main facilities to treat persons committed under MCTA. The largest facility is a secure facility located in Moose Lake, Minnesota, and it houses persons who are in the earliest stages of treatment. The second, secure facility is located in St. Peter, Minnesota, and it houses inmates who have progressed beyond the initial phase of treatment. A third facility known as Community Preparation Services (CPS) is located outside the secure perimeter in St. Peter. CPS is designed for persons in the final stages of treatment who are preparing for reintegration into the community.
Beginning in 2008, MSOP adopted a three-phase treatment program. Phase I focuses on rule compliance, emotional regulation, and treatment engagement, but
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individuals do not receive any specific sex offense therapy. In Phase II, MSOP provides therapy that focuses on identifying and addressing patterns of sexually abusive behaviors. MSOP emphasizes discussion and exploration of the committed individual’s history of sexually offensive behaviors along with the motivations of those behaviors. When a committed person reaches Phase III, MSOP builds on the skills learned in Phase II and focuses on reintegration into the community. Advancement through the phases is based on a Goal Matrix where the individual’s treatment process is scored using various factors. Although the MSOP Treatment Manual states that a committed person could be initially assigned to any phase of the program, no MSOP official could recall a person being assigned to anything but Phase I at the Moose Lake facility.
The district court found that since its inception in 1994, MSOP has accepted approximately 714 committed individuals, but no committed individual has been fully discharged from MSOP and only three people have been provisionally discharged from the program. The committed individuals represent about 4% of Minnesota’s registered sex offenders. Minnesota officials project that the number of civilly committed sex offenders will grow to 1,215 by 2022. Minnesota has the highest percapita population of civilly committed sex offenders in the nation.
C. Claims
In December 2011, plaintiffs filed a pro se suit, pursuant to 42 U.S.C. § 1983, challenging the conditions of their confinement and certain MSOP policies and practices. The focus of the initial complaint concerned housing conditions, property possession, searches, visitation rights, disciplinary procedures, vendor choices, vocational training, and access to electronic devices. The complaint also claimed that MSOP did not provide constitutionally adequate treatment and thus violated plaintiffs’ due process rights. After obtaining counsel in January 2012, plaintiffs filed a First Amended Complaint raising generally the same claims as in the original
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complaint and seeking class certification. The district court granted class certification.
As litigation progressed, including discovery, the district court, in an effort to reach a settlement agreement, ordered the DHS commissioner to create a fifteenmember “Sex Offender Civil Commitment Advisory Task Force” to “examine and provide recommended legislative proposals to the Commissioner on the following topics:
A. The civil commitment and referral process for sex offenders; B. Sex offender civil commitment options that are less restrictive than placement in a secure treatment facility; and C. The standards and processes for the reduction in custody for civilly committed sex offenders.” The court later ordered the creation of a MSOP Program Evaluation Team to evaluate the class plaintiffs’ treatment placement and phase progression.
In August 2013, plaintiffs moved for a declaratory judgment finding the MCTA unconstitutional on its face and as applied to plaintiffs. The plaintiffs argued that the statute is unconstitutional on its face because the statutory discharge standards are more difficult to overcome than the initial statutory commitment standards. For a person to be committed, the state has to show the person is a sexually dangerous person or a person with a sexual psychopathic personality and that the person is highly likely to reoffend. However, discharge under MCTA requires a showing that the person is “no longer dangerous.” In comparison to the commitment criteria, the plaintiffs argued the discharge standard is more stringent. The plaintiffs also claimed the statute is unconstitutional as applied because no person committed has ever been fully discharged from MSOP and because there is no automatic, independent, periodic review of an individual’s need for continuing commitment. In February 2014, the court denied plaintiffs’ motion for declaratory judgment and issued detailed
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instructions to the four Rule 706 experts it had appointed to assist the court in understanding the complexities of the case.7
D. Bench Trial
The district court proposed hearing the matter in a bench trial. The state defendants objected, arguing that they had preserved the right to a jury trial. In response, plaintiffs moved to again amend their complaint to clarify their allegations and to remove any damages claim from the complaint. The magistrate judge granted the motion to file the Third Amended Complaint that clearly set forth facial and as applied claims based on due process violations and removed any damages claim. Because there were no longer damages claims and plaintiffs were only seeking injunctive relief, the district court ordered that the case be submitted at a bench trial.
Phase I of the bench trial occurred from February 9, 2015 to March 18, 2015. During the six-week trial, the district court heard testimony from all four Rule 706 experts, several named plaintiffs, and MSOP employees and staff. Following the trial, the district court entered a broad order finding MCTA unconstitutional facially and as applied. The court held that Minnesota’s civil commitment scheme for sex offenders is a punitive system without the safeguards found in the criminal justice system. It also held that MCTA “is not narrowly tailored and results in a punitive effect and application contrary to the purpose of civil commitment.” Specifically, the district court concluded:
section 253D is facially unconstitutional for the following six reasons: (1) section 253D indisputably fails to require periodic risk assessments
7Federal Rules of Evidence permit district courts to appoint independent experts to assist the court understand complex and difficult issues. Fed. R. Evid. 706 (court may “[o]n a party’s motion or on its own” appoint an expert to serve on behalf of the court).
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and, as a result, authorizes prolonged commitment even after committed individuals no longer pose a danger to the public and need further inpatient treatment and supervision for a sexual disorder; (2) section 253D contains no judicial bypass mechanism and, as such, there is no way for Plaintiffs to timely and reasonably access the judicial process outside of the statutory discharge process to challenge their ongoing commitment; (3) section 253D renders discharge from the MSOP more onerous than admission to it because the statutory discharge criteria is more stringent than the statutory commitment criteria; (4) section 253D authorizes the burden to petition for a reduction in custody to impermissibly shift from the state to committed individuals; (5) section 253D contemplates that less restrictive alternatives are available and requires that committed individuals show by clear and convincing evidence that a less restrictive alternative is appropriate, when there are no less restrictive alternatives available; and (6) section 253D does not require the state to take an affirmative action, such as petition for a reduction in custody, on behalf of individuals who no longer satisfy the criteria for continued commitment.
The district court also determined MCTA was unconstitutional as applied for six reasons:
(1) Defendants do not conduct periodic independent risk assessments or otherwise evaluate whether an individual continues to meet the initial commitment criteria or the discharge criteria if an individual does not file a petition; (2) those risk assessments that have been performed have not all been performed in a constitutional manner; (3) individuals have remained confined at the MSOP even though they have completed treatment or sufficiently reduced their risk; (4) discharge procedures are not working properly at the MSOP; (5) although section 253D expressly allows the referral of committed individuals to less restrictive alternatives, this is not occurring in practice because there are insufficient less restrictive alternatives available for transfer and no less restrictive alternatives available for initial commitment; and (6) although treatment has been made available, the treatment program’s structure has
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been an institutional failure and there is no meaningful relationship between the treatment program and an end to indefinite detention.
In reaching its conclusions as to both Counts 1 and 2, the facial and as-applied challenges, the district court applied “strict scrutiny, placing the burden on the state to show that the law is narrowly tailored to serve a compelling state interest” because “Plaintiffs’ fundamental right to live free of physical restraint is constrained by the curtailment of their liberty.” The court noted it would address the remaining claims in the Third Amended Complaint in a second phase of the trial and in a separate order.
E. Injunctive Relief
In a subsequent order, the district court directed MSOP to “conduct independent risk and phase placement reevaluation of all current patients at MSOP.” The court provided detailed directions as to how and when the reviews were to be conducted, including identifying certain individuals to be evaluated first, and directed MSOP officials to file petitions for reduction in custody for all persons found eligible for such relief through the reevaluation. Defendants’ compliance with the court’s directives are to be monitored by a special master who has “authority to monitor compliance with the remedies” and “authority to implement and enforce the injunctive relief imposed by the Court and to mediate any dispute between the parties with regard to the implementation of the remedies.” The order further noted that the court “contemplates” entering “further specific relief against Defendants” in subsequent orders, foreseeing directions as to MSOP’s treatment structure and discharge process, training for MSOP employees, periodic evaluation of MSOP by external experts, and the development of a statewide public education campaign.
II.
The state defendants appeal the district court’s entry of declaratory judgment and the district court’s grant of injunctive relief. First, they allege structural due
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process error based on the district judge’s bias against them. Second, the state defendants argue three jurisdictional defects. Lastly, the state defendants dispute the district court’s determinations on the merits, focusing specifically on whether the district court applied the proper standards of scrutiny to the plaintiffs’ due process claims. All issues raised by the state defendants concern questions of law, which we review de novo. See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1748 (2014) (recognizing that questions of law are reviewed under de novo standard of review).
A. Judicial Bias
The state defendants claim that the district court pre-judged the case against them, violating their due process rights to a neutral decisionmaker. In support of this argument, state defendants first point to various comments made by the district court that are critical of MSOP and remarks suggesting that state officials should make drastic changes to the program. For instance, in one order, the district court concluded with the statement, “The program’s systemic problems will only worsen as hundreds of additional detainees are driven into MSOP over the next few years. The politicians of this great State must now ask themselves if they will act to revise a system that is clearly broken, or stand idly by and do nothing, simply awaiting Court intervention.” (Doc. 427 at 69 (footnote omitted).) Just prior to the bench trial, the court denied the state defendants’ motion to dismiss the Third Amended Complaint and for summary judgment. In that order, it stated, again in conclusion, “It is difficult for the Court to understand why the parties have not resolved this case in a manner that would address clients’ concerns, serve the public interest, promote public safety, and serve the interests of justice for all concerned. Justice requires no less.” (Doc. 828 at 43.)
Second, the state defendants argue that the Rule 706 experts were improperly used by the court to aid the plaintiffs in preparing and presenting their case.
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Although not appealing the court’s appointment of the Rule 706 experts, the state defendants argue that the court used those experts to prosecute the plaintiffs’ case and this demonstrates that the court had assumed the mantle of an advocate.
Third, the state defendants note that the Third Amended Complaint was filed almost three years after the commencement of the case and matched the court’s September 9, 2014 order as to the issues the court wished to address in the bench trial. Again, the state defendants are not challenging the district court’s order allowing the plaintiffs to file the Third Amended complaint; rather, the state defendants argue that it was improper for the court to counsel the plaintiffs on the claims it should present to the court. This Third Amended Complaint also had the effect of forcing a bench trial as the three previous versions of the complaint contained damages claims but the Third Amended Complaint only sought equitable relief.
Finally, the state defendants argue that the district court ordered the creation of a task force to provide legislative proposals for settlement purposes. The state defendants claim that the district court’s order providing for the creation of the task force provided that the report prepared by the task force would not be admissible at trial, but the court admitted the report at the bench trial and then considered and relied upon the report in deciding the case. The state defendants also claim the district court influenced who would be appointed to that task force. This process, the state defendants claim, also demonstrates improper judicial advocacy.
The state defendants argue the result of these various district court actions was obviously biased fact-finding by the court. According to the state defendants, the court assumed the role of an advocate instead of a neutral magistrate. Based on this alleged bias, the state defendants request that this court overturn the decisions of the district court as the bias constitutes a structural error requiring “automatic reversal.”
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Parties to litigation are “entitled to due process, the essence of which is a fair trial before a tribunal free from bias or prejudice.” Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1191 (8th Cir. 1984) (citing In re Murchison, 349 U.S. 133, 136-37 (1955)). “Ordinarily, when unfair judicial procedures result in a denial of due process, this court could simply find error, reverse and remand the matter.” Reserve Mining Co. v. Lord, 529 F.2d 181, 185 (8th Cir. 1976). In those cases where the court has found a biased or prejudiced district judge resulted in a due process violation, the evidence of bias was overwhelming. For instance, in Gardiner, the district judge “stated that he believed the truth of plaintiffs’ allegations, adding that he had become an advocate for plaintiffs and that he was, in fact, prejudiced.” 747 F.2d at 1192.
In this matter, the state defendants point to a handful of remarks made over the course of months of litigation. These comments do give some cause for concern; if they are not premature remarks on the merits of the litigation, then they could in some instances be construed as policy pronouncements that risk straying beyond the judicial role. We are not convinced, however, that the actions and statements complained of, individually or collectively, establish that the district court was biased. Instead, the decisions of the district court in appointing the Rule 706 experts, allowing for a late amendment to the complaint, and appointing the task force were arguably done in an effort to streamline the complicated case and attempt to reach an amicable settlement between the parties.8 Further, unlike cases such as Gardiner, where one party was not allowed to present their case to the court, the district court did not prevent the state defendants from presenting their case to the district court in a six-week bench trial, and the district court gave due consideration to all arguments. In further proceedings, moreover, we are confident that the district court will be sensitive to avoiding even the appearance of bias or prejudgment of the merits.
8Neither the class plaintiffs nor the state defendants objected to the creation of the Task Force.
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B. Jurisdiction
The state defendants raise three challenges to the jurisdiction of the district court in this matter. First, the state defendants argue the plaintiffs lacked standing to challenge MCTA. The state defendants argue the latest version of the complaint alleges violations of the plaintiffs’ liberty interests, but the plaintiffs have not identified a named plaintiff or a member of the class who would be entitled to discharge if reevaluated. Instead, the plaintiffs merely speculate that some of them or some of the members of the class would be subject to discharge upon completion of a risk assessment. According to the state defendants, because the alleged harm is speculative, the plaintiffs have not shown an actual deprivation of their liberty, and thus they lack standing to bring this action.
We reject this argument. “Article III establishes three elements as a constitutional minimum for a party to have standing: (1) ‘an injury in fact,’ meaning ‘the actual or imminent invasion of a concrete and particularized legal interest’; (2) a causal connection between the alleged injury and the challenged action of the defendant; and (3) a likelihood that the injury will be redressed by a favorable decision of the court.” Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978, 98586 (8th Cir. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). “This means that, throughout the litigation, the plaintiff ‘must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990)). Here, we agree with the class plaintiffs that they have standing because their claim is not that they are all entitled to release but rather that their constitutional rights are being violated because MCTA and MSOP’s implementation of MCTA violates the due process clause. The class plaintiffs are seeking certain procedural protections such as periodic reviews of their confinement and placement in appropriate facilities. All plaintiffs are committed under MCTA and detained in MSOP. Thus, if their
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allegations are true, the plaintiffs have suffered a concrete injury caused by the challenged action that could be redressed by appropriate injunctive relief.
Next, the state defendants argue that this action is barred under Heck v. Humphrey, 512 U.S. 477 (1994), and Preiser v. Rodriguez, 411 U.S. 475 (1973), because it is an attempt to use 42 U.S.C. § 1983 to challenge the fact or duration of their confinement and such claims can be brought only in a habeas petition under 28 U.S.C. § 2254. “[A] state prisoner’s claim for damages is not cognizable under 42 U.S.C. § 1983 if ‘a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,’ unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated.” Edwards v. Balisok, 520 U.S. 641, 643 (1997) (quoting Heck, 512 U.S. at 487). This action, however, would not necessarily imply the invalidity of any of the plaintiffs’ commitment. See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1140 (9th Cir. 2005) (noting Heck applies to civilly committed persons as well as prisoners). They do not allege that their initial commitment was invalid. Nor is it alleged that any specific class members should be immediately released. Instead, the plaintiffs claim that they should receive relief including regular, periodic assessment reviews to determine if they continue to meet the standards for civil commitment. It is conceivable that upon receiving an assessment none of the plaintiffs would be eligible for release, despite the district court’s finding otherwise. Because the injunctive relief sought would not necessarily imply the invalidity of the plaintiffs’ commitment, this action is not barred under Heck or Preiser.
Finally, the state defendants challenge the subject matter jurisdiction of the federal courts under the Rooker-Feldman doctrine. The defendants claim plaintiffs are seeking through this action to reverse “hundreds” of state-court judgments that have held MCTA to be constitutional when raised by individual defendants challenging the application of MCTA to them. “The Rooker-Feldman doctrine is narrow; it applies only to ‘cases brought by state-court losers complaining of injuries
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caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.’” Edwards v. City of Jonesboro, 645 F.3d 1014, 1018 (8th Cir. 2011) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). “The doctrine thus occupies a ‘narrow ground’ and does not ‘stop a district court from exercising subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court.’” Banks v. Slay, 789 F.3d 919, 922 (8th Cir. 2015) (quoting Exxon Mobil Corp., 544 U.S. at 284, 293). As previously discussed, the class plaintiffs are not seeking review and rejection of state court judgments nor are the plaintiffs claiming to have suffered harm because of prior state court judgments which have held MCTA constitutional. Through this action, plaintiffs are seeking prospective injunctive relief based on a theory that the MCTA violates their fundamental liberty rights. Therefore the narrow Rooker-Feldman bar does not apply to this action.
C. Standards of Scrutiny
The district court held that, because the committed individuals have a fundamental right to liberty, strict scrutiny was the proper standard of scrutiny to apply to plaintiffs’ facial and as-applied due process claims. The district court therefore determined MCTA had to be narrowly tailored to achieve a compelling governmental purpose and that it failed to meet this narrow tailoring both facially and as applied. We disagree with application of the strict scrutiny standard.
i. Facial Due Process
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
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statutes.” United States v. Timms, 664 F.3d 436, 445 (4th Cir.), cert. denied, 133 S. Ct. 189 (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 (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 (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 (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 (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 (1997) (quoting Foucha, 504 U.S. at 80). 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 (citing Addington, 441 U.S. at 426). When considering the due process implications of a civil commitment case, the Supreme Court stated “[a]t the least, due process
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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 (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. See id.
ii. As-Applied Due Process
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 (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 (1997)). The district court, citing
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to a pre-Lewis decision of United States v. Salerno, 481 U.S. 739, 746 (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.
D. Substantive Due Process
i. Facial Challenge
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
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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 (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 (“[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, 31415 (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 (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)).
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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. 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 the Minnesota Court of Appeals. Minn. Stat. Ann. §§ 253D.28, 253B.19(5).
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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.
ii. As-Applied Challenge
We agree with the state defendants that much of the district court’s “asapplied” 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
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from civilly detaining those for whom no treatment is available.” Hendricks, 521 U.S. at 366. 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 asapplied 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 asapplied due process violation.
III. Accordingly, we reverse the district court’s finding of a constitutional violation and vacate the injunctive order. We remand this matter to the district court for further proceedings on the remaining claims in the Third Amended Complaint.
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 CASE 0:11-cv-03659-DWF-JJK Document 301 Filed 08/08/13 Page 1 of 82

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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 File No. 11-cv-03659 (DWF/JJK) SECOND AMENDED COMPLAINT

INTRODUCTION 1. This class action is brought on behalf of individuals civilly committed to the Minnesota Sex Offender Program against Defendants, in their individual and official capacity, for violations of Plaintiffs’ constitutional, statutory and common law rights to (1) receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary, (2) be free from punishment in violation of those rights, (3) have less restrictive confinement, (4) be free from inhumane treatment in violation of those rights, (5) have religious freedom, (6) have

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free speech and association, (7) be free from unreasonable searches and seizures, and (8) be free from an invasion of privacy.
PROCEDURAL BACKGROUND 2. Plaintiffs are all currently civilly committed to the Minnesota Sex Offender Program (“MSOP”) at Moose Lake, Minnesota pursuant to Minn. Stat. § 253B. Several of the patients in the MSOP filed federal complaints against various state employees associated with the MSOP. The complaints alleged violations of the patients’ civil rights pursuant to 28 U.S.C. § 1983 and other statutes. 3. On January 12, 2012, Judge Frank referred these cases to the Minnesota Chapter of the Federal Bar Association’s Pro Se Project. On January 20, 2012, the undersigned attorneys filed Notices of Appearance in Thompson v. Ludeman, et al., 11CV-01704 (DWF/JJK) (“Thompson”) and Karsjens et al., v. Minnesota Department of Human Services, et al., 11-CV-0359 (DWF/JSM) (“Karsjens”). 4. On January 25, 2012, Chief Judge Davis issued an Order [Karsjens Dkt. #142] staying all of the pro se MSOP cases with the exception of the Thompson and Karsjens actions pending the resolution of the outstanding Motion for Class Certification filed in the Karsjens case [Karsjens Dkt. # 24]. On February 6, 2012, Chief Judge Davis issued an Amended Order [Karsjens Dkt. # 145] applying the stay to additional MSOP cases that were unintentionally omitted from his previous order. 5. On February 8, 2012, Judge Frank issued an Order [Karsjens Dkt. #146] staying the Thompson litigation until further notice, and setting a deadline for filing an Amended Complaint in the Karsjens action by February 29, 2012. On February 29,
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2012, Judge Frank issued an Order [Karsjens Dkt. # 149], pursuant to the stipulation of the parties, amending the deadline for filing an Amended Complaint in this action to March 15, 2012. On June 28, 2012, Plaintiffs moved to have an injunctive Class certified pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure [Karsjens Dkt. # 171]. On July 24, 2012, Judge Frank issued an Order certifying the Class defined as “All patients currently civilly committed in the Minnesota Sex Offender Program pursuant to Minn. Stat., §253B.” [Karsjens Dkt. # 203].
6. On September 21, 2012, Defendants filed a Motion to Dismiss Plaintiff’s First Amended Complaint [Karsjens Dkt. # 243] and a hearing date was set for November 29, 2012. That motion, along with Plaintiffs’ Motion for Payment of Fees and Costs, were withdrawn. [KarsjensDkt. # 276].
7. The Court ordered the establishment of the Sex Offender Civil Commitment Task Force (“Task Force”). [Karsjens Dkt # 208].
8. In addition to the Task Force, this Court ordered the creation of the MSOP Program Evaluation Team (“PET Team”). [Karsjens Dkt. # 275].
9. The Court also ordered the establishment of a Committee of MSOP patients, staff, and respective counsel to meet and confer on issues relating to the conditions of confinement at the MSOP. [Karsjens Dkt. # 290].
10. On June 20, 2013, the Court issued an Order setting a deadline of August 8, 2013 for Plaintiffs’ to file a Second Amended Complaint. [Karsjens Dkt. # 298].
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NATURE OF THE ACTION
11. Plaintiffs bring this action on behalf of themselves and Class members
alleging violations of their constitutional, statutory and common law rights. Specifically,
Plaintiffs allege that the Defendants, in their official capacity and where applicable, in
their individual capacity, have, among other things:
a. failed to provide adequate treatment to Plaintiffs and Class members in violation of clearly established rights under the Fourteenth Amendment to the United States Constitution, the Minnesota Constitution, and the Minnesota Civil Commitment and Treatment Act;
b. denied Plaintiffs and Class members the right to be free from punishment in violation of clearly established rights under the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution;
c. denied Plaintiffs and Class members less restrictive alternative confinement in violation of clearly established rights under the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution;
d. denied Plaintiffs and Class members the right to be free from inhumane treatment in violation of clearly established rights under the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution;
e. denied Plaintiffs and Class members the right to religion and religious freedom in violation of clearly established rights under the First and Fourteenth Amendments to the United States Constitution;
f. unreasonably restricted clearly established rights under the First Amendment rights of free speech and association of Plaintiffs and Class members in violation of the United States Constitution and the Minnesota Constitution;
g. implemented unreasonable searches and seizures upon Plaintiffs and Class members in violation of clearly established rights under the
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Fourth Amendment to the United States Constitution and the Minnesota Constitution; h. invaded the privacy of Plaintiffs and Class members in violation of clearly established rights under the Fourth Amendment to the United States Constitution and the Minnesota Constitution; and i. breached their contract with the Plaintiffs and Class member to provide treatment and tortiously interfered with the contracts to provide treatment to Plaintiffs and Class members. 12. Plaintiffs seek injunctive relief for these constitutional, statutory, and common law violations on behalf of themselves and Class members. Plaintiffs also seek actual or nominal damages based on the Defendants’ actions in their individual capacity to violate Plaintiffs’ constitutional, statutory, and common law rights.
JURISDICTION AND VENUE 13. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331. This Court has supplemental jurisdiction for Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367. Venue in this Court is proper pursuant to 28 U.S.C. § 1391 because the acts and omissions giving rise to these claims occurred in the State of Minnesota and the Defendants all reside in the State of Minnesota.
DECLARATORY AND INJUNCTIVE RELIEF 14. This Court has authority to grant declaratory relief pursuant to 28 U.S.C. § 2201 as an actual controversy exists regarding the rights, privileges, and immunities to which the Plaintiffs are entitled while committed to the care and custody of the State of Minnesota. Pursuant to 28 U.S.C. § 2202, this Court has authority to grant injunctive and other necessary and proper relief.
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PARTIES I. Plaintiffs
15. Plaintiff Kevin Scott Karsjens is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
16. Plaintiff David LeRoy Gamble, Jr. is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
17. Plaintiff Kevin John DeVillion is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
18. Plaintiff Peter Gerard Lonergan is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
19. Plaintiff James Matthew Noyer, Sr., is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
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20. Plaintiff James John Rud is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
21. Plaintiff James Allen Barber is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
22. Plaintiff Craig Allen Bolte is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
23. Plaintiff Dennis Richard Steiner is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
24. Plaintiff Kaine Joseph Braun is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
25. Plaintiff Christopher John Thuringer is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
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26. Plaintiff Kenny S. Daywitt is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
27. Plaintiff Bradley Wayne Foster is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants.
28. Plaintiff Brian K. Hausfeld is civilly committed to the MSOP in the care and custody of the Minnesota Department of Human Services for an indefinite period of time. He has been and continues to be injured by the acts and omissions of Defendants. II. Defendants
29. Defendant Lucinda Jesson is the Commissioner of the Minnesota Department of Human Services (“DHS”). The DHS is responsible for operating the MSOP. Defendant Jesson, in her individual and official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and Class members.
30. Defendant Dennis Benson was the Executive Director of MSOP from 2008 to 2012 and a member of the clinical team. Defendant Benson, in his individual and official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and the Class members.
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31. Defendant Kevin Moser is the Director of MSOP. Defendant Moser, in his individual and official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and the Class members.
32. Defendant Tom Lundquist is the Clinical Director of MSOP. Defendant Lundquist, in his individual and official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and the Class members.
33. Defendant Ann Zimmerman is the Security Director of MSOP. Defendant Zimmerman, in her individual and official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and the Class members.
34. Defendant Nancy Johnston is the current Executive Director of MSOP. Defendant Johnston, in her individual and official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and Class members.
35. Defendant Jannine Hébert is the Executive Clinical Director of MSOP. Defendant Hébert, in her individual and official capacity, implemented, retained and carried out policies through the MSOP that violated the constitutional, statutory, and common law rights of Plaintiffs and Class members
36. In all respects material to this action, all Defendants acted under the color of law and under the color of their authority as officers and employees of the DHS.
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37. In all respects material to this action, all Defendants acted within the scope of their employment with the DHS, but exceeded the legitimate scope of their official capacity.
CLASS ACTION ALLEGATIONS 38. Plaintiffs bring this class action on behalf of themselves and the Class members pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure, seeking equitable and injunctive relief on behalf of the following class (“Injunctive Class”): All patients currently civilly committed in the Minnesota Sex Offender Program pursuant to Minn. Stat., §253B.
39. The Class satisfies the requirements of Fed. R. Civ. P. 23(b)(2) because, as set forth herein, Defendants have acted and/or refused to act on grounds that apply generally to Plaintiffs and the Class members, thereby warranting appropriate injunctive and/or declaratory relief respecting the Class as a whole.
40. On July 24, 2012, pursuant to Fed. R. Civ. P. 23(b)(2), the Court issued an Order in this action certifying the injunctive Class as defined above. [Karsjens Dkt. # 203].
41. Plaintiffs also bring this action on behalf of themselves and the Class members pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure seeking actual or nominal damages for the constitutional, statutory, and common law claims on behalf of the following class (“Damages Class”):
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All patients currently civilly committed in the Minnesota Sex Offender Program pursuant to Minn. Stat., §253B who have sustained actual or nominal damages through the actions and omissions of Defendants in their individual capacity.
42. Plaintiffs believe the number of Class members in each Class to be in
excess of 600 individuals who are currently committed to the MSOP. The exact number
and identity of Class members is easily ascertainable from MSOP records.
43. Common questions of law and fact exist as to all Class members. Such
questions of law and fact common to the Class members include, but are not limited to:
a. Whether Defendants in their individual capacity violated Plaintiffs’ and Class members’ clearly established Due Process rights protected by the Fourteenth Amendment to the United States Constitution in the following ways:
i. by violating Plaintiffs’ and Class members’ rights to treatment such that they fail to have a realistic opportunity to meet the statutory requirements to be discharged as determined by an appropriate mental health professional and that is within the scope of acceptable mental health treatment;
ii. by failing to provide a less restrictive confinement option; and
iii. by creating an unnecessarily punitive environment;
b. Whether Defendants in their individual capacity violated Plaintiffs’ and Class members’ clearly established rights to be free from unreasonable searches and seizures as protected by the Fourth Amendment to the United States Constitution;
c. Whether Defendants in their individual capacity violated Plaintiffs’ and Class members’ clearly established rights to freedom of expression, speech, and religious exercise as protected by the First Amendment to the United States Constitution;
d. Whether Minnesota’s civil commitment laws are unconstitutional as applied to Plaintiffs and Class members;
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e. Whether Defendants in their individual capacity violated the court ordered treatment of Plaintiffs and Class members;
f. Whether Defendants’ failure, in their individual capacity, to satisfy their obligations to Plaintiffs and Class members under the Consent for Participation in Sex Offender Treatment constitutes a breach of contract; and
g. Whether Defendants, in their individual capacity, tortiously interfered with the contract entered into by the Plaintiffs and Class members and the State of Minnesota for treatment.
44. Plaintiffs’ claims are typical of the claims of the Class members, and Plaintiffs will fairly and adequately protect the interests of the Class members. Plaintiffs and Class members are similarly affected by Defendants’ wrongful conduct.
45. Plaintiffs’ claims arise out of the same common course of conduct giving rise to the claims of the other Class members. Plaintiffs’ interests are coincident with, and not antagonistic to, those of the other Class members. Plaintiffs are represented by counsel who are competent and experienced in the prosecution of civil rights and class action litigation.
46. The questions of law and fact common to Class members predominate over any questions affecting only individual members, including legal and factual issues relating to liability and damages.
47. Class action treatment is a superior method for the fair and efficient adjudication of the controversy in that, among other things, such treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently and without the unnecessary duplication of evidence, effort and expense that numerous individual actions would engender. The benefits of
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proceeding through the class mechanism, including providing injured persons with a method for obtaining redress for claims that it might not be practicable to pursue individually, substantially outweigh any difficulties that may arise in management of this class action.
48. The prosecution of separate actions by individual Class members would create a risk of inconsistent or varying adjudications, establishing incompatible standards of conduct for Defendants, and would frustrate the efforts of this Court in efficiently resolving these claims.
49. Proper and sufficient notice of this action may be provided to Class members through actual notice to patients at the MSOP via direct mail and also via the MSOP Patient Computer Network, among other methods.
50. Plaintiffs and Class members have suffered harm and actual or nominal damages as a result of Defendants’ wrongful conduct as alleged herein. Absent representative action, Plaintiffs and the Class members will continue to suffer losses, thereby allowing Defendants’ violation of law to proceed without remedy.
FACTS I. History of the Minnesota Civil Commitment Statutes
51. Minnesota’s civil commitment statue was first enacted in 1939. That law contained a provision for committing Psychopathic Personalities (“PP”), including those who could not control their sexual impulses and were likely to engage in violent acts. Over the course of the next fifty years, the PP law was used primarily as an alternative to criminal punishment.
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52. In 1994, a civilly committed offender successfully challenged his commitment because the “utter lack of control” language in the PP statute conflicted with commitments based upon evidence showing that the offender had planned out an attack. See In re Linehan, 518 N.W.2d 609 (Minn. 1994).
53. In response to that ruling, the Minnesota Legislature called a special session specifically to amend the commitment statute to remove the “utter lack of control” language. Minn. Stat. § 253B.02, subd. 18c(b). That amendment created the Sexually Dangerous Person (“SDP”) and the Sexually Psychopathic Personality (“SPP”) categories under the Minnesota Civil Commitment Act in 1994. Minn. Stat. § 253B.02, subd. 18b and subd. 18c.
54. Pursuant to Minn. Stat. § 253B.02, subd. 18b, a SPP is defined as, “any person of such conditions or emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of personal acts, or a combination of any of these conditions, which render the person irresponsible for personal conduct with respect to sexual matters, if the person has evidenced, by a habitual course of misconduct in sexual matters, an utter lack of power to control the person’s sexual impulses and, as a result, is dangerous to other persons.”
55. Pursuant to Minn. Stat. § 253B.02, subd. 18c., a SDP is defined as “a person who: (1) has engaged in a course of harmful sexual conduct as defined in subdivision 7a; (2) has manifested a sexual, personality, or other mental disorder or dysfunction; and (3) as a result, is likely to engage in acts of harmful sexual conduct as
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defined in subdivision 7a.” In order to find that a person is an SDP, the state does not have to prove they have an inability to control their impulses.
56. Harmful sexual contact is defined in Minn. Stat. § 253B.02, subd. 7a. as “sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.” It includes criminal sexual conduct in the first, second, third, and fourth degrees, other crimes where sexual impulses were part of the crime, or where the person’s conduct had criminal sexual conduct as a goal.
57. The Minnesota Civil Commitment Act of 1994 created a deeply flawed program that resulted in the bluntly critical report issued by the State of Minnesota Office of the Legislative Auditor (“Legislative Auditor Report”). See Office of the Legislative Auditor, State of Minnesota, Evaluation Report: Civil Commitment of Sex Offenders (March 2011), available at http://www.auditor.leg.state.mn.us/ped/pedrep/ccso.pdf. In that Legislative Auditor Report, the Legislative Auditor found that Minnesota’s civil commitment scheme for sex offenders suffers from major problems, including the fact that it is incredibly costly, lacks reasonable less restrictive alternative confinements, and does not provide adequate treatment to those who are committed to the MSOP. II. The Civil Commitment Process for Sex Offenders in Minnesota
58. In order to be civilly committed to the MSOP, the person must be found to be a SPP or SDP under Minn. Stat. § 253B.185. The Plaintiffs and Class members have all been civilly committed as an SPP, an SDP, or both under this statute. They have all gone through the same civil commitment process.
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59. Pursuant to Minn. Stat. § 253B.185, subd. 1(b), civil commitment proceedings are initiated by the county attorney. The county attorney must determine whether good cause exists to file a petition within 120 days of receiving a court’s preliminary determination or a referral from the commissioner of corrections. Determinations on whether to file a petition for commitment vary greatly by geographic area. The average commitments per capita are substantially higher in the southeastern, southwestern, west central and northwestern regions than in the rest of the state. See Legislative Auditor Report at 39.
60. Generally the county attorney files the petition before the person is released from prison or juvenile detention. The petition may also be filed before the person goes to prison as part of a plea bargain. The petition may even be filed after the person has been placed on conditional or supervised release following a prison sentence, even if they have not committed any new sexual offenses. See Office of the Ombudsman for Mental Health and Mental Retardation, Sex Offender Civil Commitment Fact Sheet (Jan. 2004), available at http://www.ombudmhdd.state.mn.us/cctrc/sexoffenderccfactsheet.htm (“Sex Offender Fact Sheet”).
61. Minn. Stat. § 253B.08 requires that the petition be considered at a civil commitment hearing within 90 days of when the petition is filed. Pursuant to Minn. Stat. § 253B.07, the court appoints counsel for the person to be committed if necessary. At the hearing, both the proposed patient and the county attorney may call witnesses and examine and cross-examine those witnesses. All relevant evidence is considered including hearsay evidence. The court may consider evidence of past sexual misconduct,
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even if the person was not convicted of, or even charged with, a crime for that conduct. See Sex Offender Fact Sheet.
62. Unlike the Minnesota civil commitment process for sex offenders, Wisconsin, Washington, Iowa, California, Florida, New Jersey, Illinois, Virginia, Kansas, Missouri, South Carolina, Arizona, North Dakota, and New Hampshire provide for a probable cause hearing prior to proceeding with the commitment process. See Wis. Stat. § 980.04, Wash. Rev. Code § 71.09.040, Iowa Code § 229A.5, Cal. Welf. & Inst. Code § 6602 (1996), Fla. Stat. § 394.195. N.J. Stat. Ann. § 30:4-27.28(f), 725 Ill. Comp. Stat. 207/30, Va. Code Ann. § 37.2-906, Kan. Stat. Ann. § 59-29a05, Mo. Ann. Stat. § 632.489, S.C. Code Ann. § 44-48-80, Ariz. Rev. Stat. Ann. § 36-3705, N.D. Cent. Code § 25-03.311, N.H. Rev. Stat. Ann. § 135-E:7.
63. In Minnesota’s commitment proceedings, the person to be committed does not have the right to a jury trial, so all commitments are decided by a judge. Pursuant to Minn. Stat. § 253B.185, subd. 1(d), if the court finds by clear and convincing evidence that the prospective patient is an SPP or SDD under the statutory definition, they will be committed to the MSOP under a court order for sex offender specific treatment. Most other states with similar commitment statutes apply the substantially higher “reasonable doubt” standard.
64. Unlike in Minnesota, states like Wisconsin, Washington, Iowa, Texas, California, Florida, Illinois, Massachusetts, Virginia, Kansas, Missouri, South Carolina, Arizona and New Hampshire provide for trial by jury for the civil commitment of sex offenders at the request of the prosecutor or person to be committed. See Wis. Stat. § 980.05,
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Wash. Rev. Code § 71.09.060, Iowa Code § 229A.7, Tex. Health & Safety Code Ann. § 841.061, Cal. Welf. & Inst. Code § 6603(a) (1996), Fl. Stat. § 394.196, 725 Ill. Comp. Stat. 207/35, Mass. Gen. Laws Ann. ch. 123A, § 14 (2010), Va. Code Ann. § 37.2-908, Kan. Stat. Ann. § 59-29a06, Mo. Ann. Stat. § 632.492, S.C. Code Ann. § 44-48-90, Ariz. Rev. Stat. Ann. § 36-3706, N.H. Rev. Stat. Ann. § 135-E:9.
65. The population of people civilly committed to the MSOP has grown dramatically since the program was started. In 1990, there were fewer than thirty patients civilly committed as sex offenders. Legislative Auditor Report at 4. That number grew to 149 in 2000 and to 575 in 2010. Id. The Legislative Auditor Report projected that in 2020, there will be 1109 people civilly committed to the MSOP based on the current growth trend in commitments. Id. III. Civil Commitment to the MSOP
66. All civilly committed sex offenders are indefinitely committed to the MSOP, which is a treatment program with secure facilities in Moose Lake, MN and St. Peter, MN. The Moose Lake facility houses patients in the first two phases of the treatment program. The St. Peter facility houses patients in the third and final stage of the program.
A. The MSOP Treatment Program 67. MSOP is intended to be a treatment facility. All persons civilly committed as SPP or SDP enter the MSOP treatment program.
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1. MSOP Treatment Facilities 68. The only MSOP facilities are the secure treatment locations at Moose Lake and St. Peter. The 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. 69. Other states, such as Texas, provide such alternatives. In Texas, all civilly committed sex offenders are part of an outpatient treatment program in which they are subject to constant supervision, GPS monitoring, and intensive treatment. If they fail to meet the conditions of their commitment, they are charged with a felony and must return to prison. See Legislative Auditor Report at 42-43. 70. Similarly, in Wisconsin, when civilly committed sex offenders progress in treatment to a point where it is substantially probable they will not reoffend, they are placed on supervised release. See Wisconsin’s Sexually Violent Person Law, Chapter 980: Supervised Release Program (Jan. 19, 2012). http://www.dhs.state.mn.us/main/groups/agencywide/documents/pub /dhs16_166453.pdf (last visited Aug. 7, 2013). 71. In New York, civilly committed sex offenders can be immediately placed in an outpatient program called Strict and Intensive Supervision and Treatment in which the patient participates in individualized treatment, has monthly meetings with a case officer, and is electronically monitored. See New York Sex Offender Management and Treatment Act: An Overview of NYS Strict and Intensive Supervision and Treatment (SIST) (Jan.
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19, 2012) http://www.dhs.state.mn.us/main/groups/agencywide/documents/pub/ dhs16_166450.pdf (last visited Aug. 7, 2013).
2. Sex Offender Treatment Provided by the MSOP 72. Upon entering the Moose Lake MSOP facility, all Plaintiffs and Class members are presented with a contract entitled Consent for Participation in Sex Offender Treatment. Each Plaintiff and Class member is required to either sign the portion of the form consenting to receive the treatment MSOP provides according to its treatment program and policies, or sign the portion of the form stating they refuse to participate in sex offender treatment. Each Plaintiff and Class member is then supposed to be evaluated and given an individual treatment plan. 73. The contract provides that the patient’s therapist has discussed the course of treatment at the MSOP, that the patient received information about the levels of care and stages of treatment, that the patient has received the goals and behavioral expectations at the MSOP, that upon completion of treatment the MSOP will support their petition for provisional discharge, that each stage of treatment has specific goals and behavioral expectations, that services such as education and vocation are provided, that failure to participate in treatment may prolong civil commitment status, that the patient will need to reveal information about past crimes, and that treatment officials must report any previously unreported child or vulnerable adult victims they learn of from the patient. 74. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert were aware that each Plaintiff and Class member was required to sign the contract and that the contract was also signed by an employee of the MSOP.
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75. The MSOP treatment program is broken out into three phases. In Phase I, patients must learn how to comply with the MSOP facility’s rules and learn basic treatment concepts. No sex offender-specific treatment whatsoever is provided in Phase I. In Phase II, patients must discuss and work through their sexual offenses and patterns of sexual abuse. In Phase III, which takes place at the St. Peter facility, the program focuses on community reintegration. This third phase consists of MSOP Supervised Integration, in which patients live in a secure area within the St. Peter Facility. Patients may take accompanied outings off campus, and Community Preparation Services, in which patients live on campus in a house that is not within the secure perimeter. Throughout Phase III, patients are electronically monitored.
76. According to MSOP treatment protocol, Plaintiffs and Class members should move through the phases of the treatment program by following their individual treatment plans, participating in treatment, completing treatment assignments, and showing they have changed their thinking and behavior. Their progress is to be reviewed quarterly and annually.
77. Patients are evaluated on a nine factor Goal Matrix that lays out the focus of each factor in each phase of the treatment program. The nine factors are: Group Behavior, Attitude to Change, Self-Monitoring, Thinking Errors, Pro-Social Problem Solving, Emotional Regulation, Interpersonal Skills, Sexuality, Cooperation with Rules and Supervision, Healthy Lifestyle, and Life Enrichment. See Report on the Evaluation of Treatment Phase Progression at the Minnesota Sex Offender Treatment Program at 3 (Dkt. No. 294, Ex. 294-1) (“Evaluator Report”). Patients are given a score from 1-5 on
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each category, with 1 being Deficient, 2 being Needs Attention, 3 being Satisfactory, 4 being Enhanced, and 5 being Proficient. Id. at 4.
78. The MSOP treatment program was designed to be completed within four years. As of January 1, 2012, 64% of MSOP patients were in Phase I, 24% were in Phase II, and 12% were in Phase III. As no sex offender-specific treatment is provided for Phase I patients, the majority of MSOP patients are not provided any sex offenderspecific treatment at all. Additionally, 75% of MSOP patients have been civilly committed to the MSOP for between three years and ten years or more. It was not until February of 2012 that the first patient in the history of the MSOP was deemed to have completed the treatment program, after commitment to the program for more than 18 years, and be ready for provisional discharge. That patient is required to attend regular therapy as a provision of his discharge.
B. Changes to MSOP Policy Since 2008 79. In or around March of 2008, Defendant Benson resigned his position as the Minnesota Deputy Commissioner of Corrections (“DOC”) and was named Executive Director of the MSOP by the DHS. It is unclear whether Defendant Benson had any actual expertise or past experience operating or managing a treatment facility prior to being the Executive Director of the MSOP. 80. Defendant Benson hired a number of employees directly from the Minnesota DOC to work for the MSOP including Defendant Moser, Gregg Carlson, Timothy Gorr, Jim Berg, and Erick Skon.
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81. When Defendant Benson took over the role as the Executive Director of the MSOP, he implemented new policies that restricted many of the rights previously enjoyed by Plaintiffs and Class members. He also changed the MSOP to meet the standards of a maximum security prison facility. Examples of those policy changes include punishment and abuse of Plaintiffs and Class members through threats, restricted visitation, restricted property rights, censored mail, monitored calls, restricted personal physical movement, unreasonable searches, and discipline without due process of law.
82. Most policies and procedures implemented since the hire of Defendant Benson have been adopted directly from the DOC. Some of those policies include: Use of Force, Office of Special Investigations, Intelligence Information Gathering, Evidence Policy Behavioral Expectation Reports (BERs), Client Grievances, Client Request Policy, Visiting Behavioral Expectations, Mail Policy, and Property Policy.
83. Nearly every policy and procedure implemented since Defendant Benson began at the MSOP in 2008 goes beyond the scope of what is necessary for treating Plaintiffs and Class members in a therapeutic manner based on professional judgment in a safe environment and instead was enacted for staff convenience. None of these restrictions were necessary prior to 2008 to maintain control or security of the facility. The restrictions and changes have created a hostile environment that encourages a sense of hopelessness, powerlessness, and fear among Plaintiffs and Class members. The Legislative Auditor Report stated, “In the absence of clinical leadership when the current administration took over MSOP in 2008, some policies were put into place without
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adequate consideration for the effect those policies would have upon the therapeutic environment.” Legislative Auditor Report at 68.
C. Problems with the MSOP as Implemented 84. The Legislative Auditor Report found that one factor that may explain why there has never been a discharge from the program is that “problems in the treatment program over the last ten years have likely affected the progress of some sex offenders.” Legislative Auditor Report at xxi. 85. The Legislative Auditor Report also found that patients get stuck in Phase I of the program, which focuses on following rules and learning how to participate in treatment groups rather than addressing the patient’s sexual offenses or how to prevent re-offending. This may be because the MSOP does not promote “positive treatment participation.” Legislative Auditor Report at 64. 86. Frequent leadership changes at MSOP have also contributed to issues with the treatment program that have resulted in the Plaintiffs and Class members remaining in the early stages of treatment. The MSOP has had three executive directors and four executive clinical directors over the last eight years, resulting in regular and substantial changes to the treatment program. This turnover has led to inconsistent treatment being provided to Plaintiffs and Class members, and Plaintiffs and Class members being forced to unnecessarily repeat treatment modules. For example, although individualized treatment plans and reviews are performed for each patient, they have become less specific and detailed than they were in the past. The Legislative Auditor Report found that the treatment plans and reviews did not give the patients a clear idea of what they
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need to do to advance through treatment and that clinicians did not explain how they came to conclusions about patients. Legislative Auditor Report at 73. In fact, Plaintiffs and Class members draft their own treatment plans for approval by clinicians instead of clinicians directing treatment to Plaintiffs and Class members.
87. The Legislative Auditor Report also found that “the amount of treatment delivered at MSOP facilities is lower than at any other adult inpatient sex offender treatment program in the state.” Legislative Auditor Report at 62. Therefore, the State’s highest risk individuals receive the least amount of treatment. When compared to other programs across the country, MSOP “is at the low end of the range of treatment hours considered to be best practices for sex offender civil commitment programs.” Id. at 64.
88. Indeed, “[m]ost of Moose Lake clients’ time is unstructured.” Id. at 65. As of November 2010, clients who were participating in treatment at Moose Lake received on average six hours of group therapy a week. Id. at 62. Roughly half of clients sampled in the Report received additional psycho-educational modules for an hour and a half per week. Id.
89. Plaintiffs and Class members are provided as little as one hour a week in support groups. Requests for additional frequent and intensive treatment are routinely denied.
90. In contrast, the DOC, in facilities that are not primarily for treatment, provides between 9 and 10.5 hours per week of group therapy and psycho-educational classes for its sex offender treatment. Privately operated Alpha Human Services, which
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provides a comparable type of treatment to MSOP, provides at least 16 hours per week. Id. at 50.
91. The MSOP has clinical staff present at the Moose Lake facility for only eight hours a day and only on weekdays. From 4:30 p.m. to 8:00 a.m. on weekdays and all day on weekends and holidays there is no clinical or treatment staff present at the facility. Plaintiffs and Class members are locked in their cells for a minimum of ten hours per day.
92. Defendants have not provided Plaintiffs or Class members treatment by a psychiatrist or licensed clinical psychologist trained, qualified, certified, or licensed to provide meaningful treatment to a SDP or SPP. Defendants and employees treating Plaintiffs and Class members at MSOP are not qualified, certified or licensed to treat sex offenders. As the Legislative Auditor Report identified, MSOP has initiated efforts to improve therapist training, but currently, “some clinicians were formerly security staff, with backgrounds in criminal justice. Some have only a high school diploma.” Legislative Auditor Report at 61. Only since 2010 has MSOP required new clinicians to have master’s degrees and be licensed or license-eligible.
93. The Legislative Auditor Report found that the MSOP has also had difficulty filling clinical supervisor positions at Moose Lake, and that as a result, has had problems ensuring that the treatment program is being implemented consistently. Id. at 60.
94. General clinical understaffing has also been a persistent problem. The Legislative Auditor Report found that clinician caseloads are too high, which has
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“affected the ability of the program to deliver treatment to clients.” Id. at 60-61. The clinical director told the Legislative Auditor that the goal is to have eight patients per clinician but that some clinicians at Moose Lake have up to 25 patients. This understaffing has resulted in poor treatment. The Legislative Auditor Report states that “In general, we observed that files in recent years (since 2008) tended to have much less detail than those from previous years, suggesting that clinicians either did not have time to fully document client behaviors or be fully aware of client behaviors relevant to treatment.” Id. Such deficient record keeping impedes Plaintiffs and Class members’ progress in the program.
95. In 2009, psycho-educational modules at Moose Lake were completely suspended for three quarters due to staff vacancies. There was also a time when MSOP did not give any treatment for eight to ten days between trimesters so staff could complete paperwork. This totaled to about a month per year where no treatment was provided to Plaintiffs and Class members. Id. at 73-74.
96. By any measure, the MSOP is not providing Plaintiffs or Class members with a therapeutic environment. The Legislative Auditor Report stated, “Historically and currently, the program [at MSOP] has struggled to create an environment that fosters client rehabilitation. Outside advocates and experts, MSOP clients, and some MSOP staff have complained that, historically and currently: (1) some MSOP staff held disrespectful, negative, punitive, and untherapeutic attitudes towards clients; and (2) that the culture at the facilities was counter-therapeutic.” Id. at 66.
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97. Plaintiffs and Class members who suffer from depression and other emotional disorders are routinely punished for manifesting behaviors associated with the disorder with which they have been diagnosed. Defendants have failed or refused to provide medications to help deal with these emotional management disorders. Additionally, Defendants have refused or failed to make any appropriate psychiatric or psychological treatment available to Plaintiffs and Class members.
98. Unlike other health care facilities in the State, including the Minnesota Security Hospital in St. Peter, which treats Mentally Ill and Dangerous patients committed under §253B, MSOP is not, and has never been, accredited by any independent medical accreditation society that may provide objective guidance on standards of professional care being exercised in their facilities, such as the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).
99. Reviews of the MSOP’s treatment program conducted after the Legislative Auditor Report was issued has confirmed the treatment issues identified in that report and identified further issues that have prevented patients from moving successfully through the MSOP’s treatment program.
100. As a result of the lack of movement of MSOP patients through the treatment program, the Court created the MSOP Program Evaluation Team (“PET”) pursuant to this litigation to evaluate treatment phase progression at the MSOP. [Karsjens Dkt. # 281]. The Court ordered the PET to review the treatment records of some of the patients who have been in their current treatment phase for at least 36 months without advancing to the next treatment phase. Id. As part of this review, the PET could consider
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topics relevant to phase progression such as staffing, the type and amount of treatment offered, and the accuracy of client placement, among other topics. Id. The Court asked that the PET provide a report to the MSOP, the Court, and counsel for the parties in this litigation with Findings and Recommendations on phase progression as well as a recommendation on the need for future reviews of the MSOP treatment program. Id.
101. The PET was comprised of professionals who specialize in sex offender treatment. Three of the members serve on a team that performs annual site visits to the MSOP in order to review and evaluate its treatment program. The other two members had never had any prior involvement with the MSOP. They conducted a site visit, a conference call with MSOP staff, and a review of 50 treatment files prior to issuing their recommendations. See Evaluator Report at 2-3.
102. The Evaluator Report made a number of findings and recommendations indicating that the MSOP’s treatment program is not effectively moving patients through the treatment phases.
103. The Evaluator Report found that 30% of the patients in Phase I whose files they reviewed were placed in the wrong treatment phase under the MSOP’s own policies. See Evaluator Report at 4.
104. The Evaluator Report also found that the MSOP’s thresholds for movement from Phase I to Phase II and from Phase II to Phase III may be too high. Currently, the MSOP requires clients to achieve “Satisfactory” progress on all nine Goal Matrix factors for two consecutive quarters in order to move from Phase I to Phase II and patients must receive a rating of “Enhanced” on all nine Goal Matrix factors to move from Phase II to
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Phase III. They recommended that the MSOP review their requirements and possibly adjust them to a more realistic and less stringent level. See Evaluator Report at 4-5.
105. Furthermore, the Evaluator Report recommended that the MSOP identify the criteria for moving from Phase III to Community Preparation Services (“CPS”) because they currently do not have any such criteria. See Evaluator Report at 5. Additionally, the Evaluator Report found that the MSOP should clearly indicate how long patients must demonstrate competency through Phase III privileges in order to be recommended for provisional discharge and that the criteria for phase progression be modified for patients in the Alternative Program at the MSOP. Id.
106. Finally, the Evaluator Report recommended that the provisional discharge criteria for patients in the Alternative Program reflect the fact that many of those patients will be placed in environments that provide ongoing supervised care and that the level of risk reduction needed for them to live safely in the community is different than that of patients in the conventional program. Id.
107. In order to ensure that patients are progressing through the treatment program, the Evaluator Report recommended that the MSOP institute a quality assurance process whereby clinical review is automatically triggered when a patient has not progressed to the next treatment phase in a timely manner. See Evaluator Report at 6. The Evaluator Report recommends that future reviews of the MSOP program be dependent on the MSOP’s effectiveness at moving patients through the treatment program. Id.
108. The Evaluator Report identified some other areas of the treatment program that are interfering with patients’ progression through the treatment phases. The
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Evaluator Report states that the MSOP uses multiple theoretical orientations in Phases II and III, which has interfered with the phase progression of patients. See Evaluator Report at 5. The PET identified unreliable clinician scoring of the MSOP’s Goal Matrix system as an impediment to patient treatment. Id. The Evaluator Report recommended that the MSOP conduct staff trainings to address the problem, establish behavioral anchors for the scale used to rate patients on each Matrix item, and link the numerical scores with a narrative description of patient behavior for each Matrix item. Id. Additionally, the Evaluator Report recommended that patient’s quarterly reports be organized to document patient barriers to phase progression. Id. Finally, the Evaluator Report identified large core group size and frequent staff changes as an issue that impacts patient progress and the therapeutic environment. Id.
109. As mentioned above, the MSOP participates in annual site visits conducted by three independent sex offender treatment professionals, who also served on the PET. The Minnesota Sex Offender Program Site Visit Report (“Site Visit Report”) dated December 27, 2012 provides the findings of the site visit conducted in 2012 and, like the Evaluator Report, suggests various changes to the treatment program. Site Visit Report [Karsjens Dkt. # 294, Ex. 294-3]. The Site Visit Report contained some of the same recommendations as the Evaluator Report. Additionally, the Site Visit Report recommended the following changes:
a. The MSOP should place a stronger emphasis on skill building rather than psychological insight in its treatment program. See Site Visit Report at 4.
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b. The MSOP should ensure that homework assigned to patients in psycho-educational modules be reviewed in a timely fashion because there is often not enough time in core group to review each patient’s assignments. See Id. at 8.
c. The MSOP should provide individual therapy to patients at Moose Lake, at least for patients on some of the specialized units. See Id. at 9.
d. The MSOP should increase the ratio of security counselors to patients, which has decreased quite a bit over the last few years, in order to allow for security counselors to be involved in the therapeutic aspects of the MSOP. See Id. at 12.
e. Each patient’s rehabilitation services should be integrated into their Individual Treatment Plan. See Id. at 8.
f. The MSOP should increase the level of psychiatric services for the program because the MSOP currently only has one full-time psychiatric nurse practitioner for both Moose Lake and St. Peter as well as 12 hours of psychiatrist time per week. See Id. at 11.
g. The MSOP should evaluate whether the current staffing level of Unit Directors is appropriate. See Id. at 11.
110. Defendant Jesson, in her individual capacity as well as her official capacity,
has the power to determine whether the MSOP will support a patient’s petition for
provisional discharge or full discharge. It has been the practice and procedure of
Defendant Jesson not to support such petitions unless the patient has completed the entire
treatment program, which has only been accomplished by one patient in the history of the
MSOP.
111. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in
their individual capacity as well as their official capacity, were each aware that each
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Plaintiff and Class member entered into a contract for treatment at the time they were civilly committed to MSOP.
112. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, were aware of the failure to progress Plaintiffs and Class members through the different treatment phases to the point that they could be conditionally or unconditionally released.
113. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, actively participated in and supported the inadequate treatment policies as implemented by MSOP, which resulted in the failure to comply with contract to provide treatment by MSOP.
114. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, were aware that the MSOP treatment program as implemented had only conditionally released a single person and had never unconditionally released anyone committed to MSOP.
115. Yet Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, each failed to take action to change the inadequate treatment policies and practices at MSOP and, in fact, endorsed the use of the policies and practices by MSOP employees.
116. Plaintiffs and Class members are not billed for individualized care. Instead, they are billed a per diem rate regardless of the individual treatment or individual costs. There are many levels of care and many varying levels of cost, depending upon the programming the patient receives or otherwise requires. Yet all of the Plaintiffs and Class
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members are charged at one daily rate regardless of individual needs. That daily rate is currently $317 per day.
117. For patients who have health insurance coverage, the billing system is ineffective. Plaintiffs and Class members who have health insurance cannot use that coverage to pay the costs associated with the MSOP. This is because the MSOP does not follow the accepted billing procedures, is not accredited and otherwise does not meet the standards of recognized mental health care. In other words, Plaintiffs and Class members who are civilly committed as mentally ill to the MSOP are receiving such deficient treatment, under such poor conditions, that it cannot be paid for through health insurance coverage.
D. Discipline and Punishment 118. In addition to the lack of treatment, Defendants have subjected Plaintiffs and Class members to disciplinary and punitive policies, practices, and procedures during their civil commitment to the MSOP, particularly since Defendant Benson became Executive Director and implemented new policies, procedures and practices. 119. The main disciplinary tools used at the MSOP are Behavior Expectation Reports (“BER”). Plaintiffs and other Class members are expected to follow the Behavioral Expectations Handbook. The current handbook was issued in 2009 and updated in 2011. It contains descriptions of behavioral violations, consequences, and a disciplinary procedure for BERs. 120. Defendants categorize behavioral violations as either Minor Rule Violations or Major Rule Violations. However, the handbook is not clear about what
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constitutes a minor or major rule violation and what the disciplinary consequences are for different violations.
121. Minor Rule Violations are defined as those that violate facility policy or procedure but that MSOP staff does not believe places anyone in immediate danger or present management difficulties. As a result of a Minor Rule Violation, Plaintiffs and Class members may be limited from using or fully restricted from using the area or items involved in the violation.
122. Major Rule Violations are those that MSOP staff determine jeopardize the safety of others or present significant management difficulties. This would include behavior such as possession of contraband or interfering with security procedures. As a result of a Major Rule Violation, Plaintiffs and Class members may be required to stay in their cell with the exception of a ten minute window each hour and be fully restricted from a long list of areas including the outer yard, the gym, the library, unit electronics, work for pay assignments, visits with friends or family, and the unit common area.
123. Other behavior that the handbook classifies as violating MSOP rules includes a patient signing up for an activity and not attending that activity, a patient attending an activity that he had not signed up for, dress code violations, loitering in the halls or other common areas, or leaving the lights on in a cell.
124. MSOP staff does not consistently apply the Behavioral Expectations Handbook to Plaintiffs and Class members. As a result, Plaintiffs and Class members are unable to determine what level of punishment or restriction they should expect for any given rule violation or behavior.
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125. If MSOP staff believes a Plaintiff or Class member has violated a rule, they issue a redirect or a minor or major BER. A redirect is a request from MSOP staff that the Plaintiff or Class member alter their behavior. It is supposed to be removed from the Plaintiff or Class member’s record after 45 days, however, that is often not the case. If the offending behavior persists, the staff may then issue a BER. After receiving a BER, the Plaintiff or Class member can request a review of the BER itself and the restrictions imposed. The BER hearing panel consists of MSOP employees from various areas of treatment including clinical, security, and programming. The hearing board is not impartial or objective and the hearing process is a sham.
126. At the BER hearing, Plaintiffs or Class members are not allowed to present evidence, cross examine witnesses, or face their accusers. Plaintiffs or Class members are not given copies of the incident reports or other evidence that is being used against them to impose disciplinary restrictions.
127. A Plaintiff or Class member may only appeal the hearing panel’s decision to the MSOP Facility Director. However, most of the policies and procedures complained of by the Plaintiffs and Class members are implemented by the Director, suggesting a less than impartial appellate process.
128. The clinical team and vocational services utilize Individual Treatment Plans and Treatment Memos to issue further discipline and restrictions on Plaintiffs and Class members. Vocational services will often remove a Plaintiff or Class member from the vocational Work for Pay Program or reduce the amount of hours he is entitled to participate as a result of receiving a BER.
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129. Receiving BERs directly affects a patient’s progression in treatment. Disciplinary restrictions cause at least a six month delay in progression in treatment.
130. The High Security Area (“HSA”) is also used as a disciplinary measure at the MSOP. HSA is essentially solitary confinement. Plaintiffs and Class members are held in HSA when MSOP staff determines they need to be placed on Protective Isolation Status.
131. Plaintiffs and Class members can be placed in HSA until MSOP staff determines they have regained behavioral control. While in HSA, Plaintiffs and Class members are only allowed out of their cell for one hour per day.
132. Plaintiffs and Class members are kept in HSA much longer than is necessary, and it is used as a punitive measure rather than a behavioral control measure.
133. Other punitive policies and practices in place at the MSOP by Defendants include:
a. punishing Plaintiffs and Class members by denying access to group therapy;
b. intentionally and unnecessarily, delaying delivery of mail to Plaintiffs and Class members;
c. unreasonably restricting Plaintiffs’ and Class members’ access to, and conduct during, visitation;
d. restricting Plaintiffs’ and Class members’ access to both a regular library and a law library;
e. denying Plaintiffs’ and Class members’ access to recreational activities and exercise;
f. restricting what can be purchased by Plaintiffs and Class members from the inmate store;
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g. denying Plaintiffs and Class members educational programming;
h. denying Plaintiffs and Class members any meaningful employment opportunities;
i. permitting MSOP staff to punish Plaintiffs and Class members by denying them employment;
j. denying Plaintiffs and Class members access to hobbies;
k. restricting the time Plaintiffs and Class members are allowed access to the yard;
l. allowing staff to punish Plaintiffs and Class members by denying them access to the yard or to the gym;
m. allowing staff to punish Plaintiffs and Class members by locking them in their cell;
n. punishing Plaintiffs and Class members by removing furniture;
o. executing security checks every half hour by knocking loudly and disruptively on the cells of Plaintiffs and Class members;
p. creating a patient disciplinary board for Plaintiffs and Class members that does not follow constitutional standards of due process;
q. creating policies that, as implemented, supersede statutory rights provided to Plaintiffs and Class members under the Patient Bill of Rights;
r. taking away the basic life skills of allowing Plaintiffs and Class members to manage their personal financial affairs;
s. taking away the right for Plaintiffs and Class members to visit each other’s cells;
t. taking away the right to drug and alcohol treatment for Plaintiffs and Class members;
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u. denying Plaintiffs and Class members the right to greet and shake hands with other peers in treatment;
v. denying Plaintiffs and Class members the right to share food and other items with others; and
w. denying Plaintiffs and Class members the right to wear certain clothes such as hats, bandanas, and muscle shirts, within the confines of their own living units.
134. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware that Plaintiffs and Class members were subjected to these disciplinary practices on a daily basis and actively participated in such conduct.
135. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, did nothing to stop these disciplinary practices from occurring or to prevent the ongoing use of these policies and practices at the MSOP facilities.
E. Non-Therapeutic Environment 136. The policies, procedures, and practices of Defendants have led to a nontherapeutic environment in the MSOP.
1. Physical Layout of the Secure Facility 137. The MSOP facility at Moose Lake is laid out exactly like state prisons with cell units facing into a central courtyard where Plaintiffs and Class members may be observed from one central station. MSOP staff wears police-style uniforms. The newly designed and constructed living unit, Complex One, is designed just like a correctional
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facility. The Legislative Auditor Report confirmed that it was not designed with therapeutic goals in mind. Legislative Auditor Report at 68.
138. Despite the well documented concerns regarding the difficulty of fostering a therapeutic environment in the current facility at Moose Lake, MSOP is currently planning an expansion that will create a second building identical to Complex One.
139. Mail and kitchen facilities at the Moose Lake facility have not been expanded since the program was originally started. Therefore, a facility that was designed for 130 patients is now required to serve over 400 patients. Those limited facilities have resulted in inadequate meal and mail service for Plaintiffs and Class members.
2. Cell Conditions 140. In 1994, the MSOP was operating in a hospital setting. Patients had individual rooms with their own mattress, bed, dresser, desk, and storage. Private bathrooms were available and toilets were not in the rooms. Patients were not locked in their rooms. 141. In the past, patients could purchase video game systems, televisions, word processors, and furniture from any vendor. Currently, Plaintiffs and Class members must make canteen purchases for over the counter medications, food, and hygiene products through MINNCOR, which is the exclusive vendor for MSOP. This results in excessive prices for purchases. In the past, patients could buy, sell, or trade with other patients upon approval from that patient’s treatment team. 142. When Complex One was constructed, the MSOP obtained waivers from the Minnesota Department of Health so it would not have to comply with statutorily required
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living standards for state hospitals. The waivers allowed the MSOP facility at Moose Lake to have things like the springless beds, smaller cells with inadequate space between beds, inoperable windows in cells, smaller windows in cells, and a more prison-like setting as opposed to a home-like environment.
143. This resulted in the current cells Plaintiffs and Class members reside in. Plaintiffs and Class members are double bunked in 9.5 x 15 ft. wet cells consisting of two metal bed frames with springless mattresses that are only 30 inches apart, small stainless steel desks, and a stainless steel toilet/sink combination unit fixed into the cell.
144. Cell doors are metal and only have a small viewing window. The two windows in each cell are only five inches wide. The only privacy when using the toilet is a movable screen. The only storage Plaintiffs and Class members are allowed are three storage lockers that must fit under the bed.
145. Plaintiffs and Class members are locked in these cells every day from at least 9:45 p.m. until 6:25 a.m. Prior to Defendant Benson becoming Executive Director, lock-in was contingent on a patient’s progression in treatment.
146. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of these cell conditions and did nothing to changes these conditions.
3. Double Bunking 147. Most Plaintiffs and Class members are double-bunked with another civilly committed sex offender. This double bunking has led to increased physical and sexual assaults. See Goldhammer v. Rose, et al., 11-CV-00852 (JNE/JJK) (April 4, 2011). In
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Goldhammer, the plaintiff was a patient at MSOP in Moose Lake. Despite both the plaintiff and his assailant warned MSOP staff of an impending sexual assault on Goldhammer, due in part to double bunking, Goldhammer was physically and sexually assaulted in his cell by his substantially larger bunkmate. At least one other lawsuit regarding an assault in a double-bunked cell at MSOP is pending.
148. If MSOP patients are dangerous threats to society, double bunking Plaintiffs and Class members in locked cells with a known dangerous individual is inherently unsafe.
149. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of that Plaintiffs and Class members were being double bunked and did nothing to prevent this from occurring.
4. Searches 150. Defendants perform unwarranted and unreasonable searches of Plaintiffs’ and Class members’ persons, property, and living quarters at MSOP. 151. Currently, Plaintiffs and Class members are subject to unwarranted pat searches of the body, unclothed body searches, and body cavity searches without reasonable suspicion being established. Plaintiffs and Class members may be pat searched or wand searched at any time for no reason including whenever leaving the craft room in recreation, the visiting area or vocational work areas. 152. In the past, patients were not subject to strip searches. Plaintiffs and Class members are now subject to strip searches upon entry to the HSA, regardless of the incident that led to being placed in the HSA. When a Plaintiff or Class member refuses to
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comply with a strip search, the facility staff will forcibly cut off his clothing and physically inspect his groin area and buttocks.
153. Plaintiffs and Class members are also subject to strip searches any time they leave or re-enter the secure perimeter of the MSOP facility. For example, if they are suffering from a medical emergency and need to go to the hospital, the Plaintiff or Class member will be strip searched prior to being allowed to get in a waiting ambulance. The Plaintiff or Class member is then strip searched again when they return to the secure MSOP facility, even though two MSOP security guards accompany Plaintiffs and Class members the entire time they are outside the secure facility.
154. Plaintiffs and Class members are also subject to regular random cell searches. These cell searches are used as a punitive exertion of authority on Plaintiffs and Class members. Plaintiffs and Class members are not allowed to observe the searches or be present during their performance. No meaningful process exists to oppose the searches or appeal the resulting arbitrary confiscation of Plaintiffs’ and Class members’ property.
155. In addition to pretextual random cell searches, Plaintiffs and Class members are subject to daily “window checks” of their cell. Defendants claim the purpose of these searches is to physically inspect windows in the patients’ cells. The reinforced glass windows are roughly five inches wide and recessed into the wall over a foot. The windows do not open. Although the stated reason for the window checks is prevention of escape, it is not possible for a person to fit through the window opening even if the reinforced glass could be broken. The true function of the window checks is to
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allow guards to enter the cells of the Plaintiffs and Class members and perform regular,
unwarranted searches of the cells.
156. The following policies, procedures, and practices related to searches
performed by Defendants are also unreasonable:
a. the policy of routinely searching the contents of Plaintiffs’ and Class members’ incoming and outgoing mail;
b. the policy and practice of opening and reviewing Plaintiffs’ and Class members’ mail that has been clearly marked as legal correspondence;
c. performing strip searches on Plaintiffs and Class members after visitations, despite the excessive monitoring and conduct regulations during visitation;
d. strip searching and shackling Plaintiffs and Class members during transportation outside the secure perimeter by MSOP personnel;
e. conducting random, unreasonable, and unwarranted searches of Plaintiffs’ and Class members’ quarters, property and persons;
f. monitoring Plaintiffs’ and Class members’ telephone calls;
g. constant monitoring of Plaintiffs’ and Class members’ every action and conversation;
h. requiring a staff person to be present during visits between medical providers and Plaintiffs and Class members;
i. monitoring Plaintiffs and Class members when they are speaking with clergy or other religious volunteers;
j. forcing Plaintiffs and Class members to buy from approved vendors only, even though staff check all incoming mail; and
k. allowing staff to shakedown Plaintiffs’ and Class members’ cells at any time.
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157. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of these policies, procedures, and practices related to unreasonable searches and yet did nothing to stop these from occurring or to prevent the ongoing use of these policies, procedures and practices at the MSOP facilities and actively participated in such conduct.
5. Physical Restraints 158. In the past, patients were allowed to leave the facility with a staff escort and without physical restraints. Patients could move freely about the compound and socialize with other patients at MSOP. Patients were not locked in their rooms at night. Patients could shop at local stores, cook food on stoves and barbeques, run their own businesses, carry cash, and conduct personal banking. 159. Since Defendant Benson took over MSOP in 2008, the restrictions on movement at the MSOP facilities are identical to a maximum security correctional facility. 160. When Plaintiffs and Class members leave the secure facility they are placed in handcuffs, leg irons and a black box, complete with waist-chain. They are then pushed in a wheel chair to the transport vehicle where they are placed into a small cage inside the van. They are subject to these same restraints when they suffer a medical emergency and need to leave the secure facility via ambulance. 161. Plaintiffs and Class members cannot ever move freely around the facility. The only time they can move around an area as they wish is when they are locked on their designated living unit.
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162. The physical restraint policy is impermissibly applied across the board to Plaintiffs and Class members. No consideration is given to the individualized security risk that a patient poses.
163. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of these policies, procedures, and practices related to the unreasonable use of physical restraints and yet did nothing to stop these from occurring or to prevent the ongoing use of these policies, procedures and practices at the MSOP facilities and actively participated in such conduct.
6. Inadequate Medical Treatment 164. Defendants do not provide adequate medical treatment to Plaintiffs and Class members. This deficient treatment has caused injury to the Plaintiffs and Class members. 165. MINNCOR is the exclusive provider of all over the counter and prescription medications at the MSOP, which may result in a delay in providing necessary medication to Plaintiffs and Class members, particularly if a prescription is ordered from a facility outside of the MSOP. 166. Defendants do not provide necessary insulin and other diabetic management care to the Plaintiffs and Class members with diabetes. Defendants do not seek professional medical assistance outside of MSOP Health Services for conditions like salmonella and hammer toes. The medical care provided for those conditions by MSOP Health Services has resulted in Plaintiffs and Class members suffering lasting negative effects.
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167. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the failures by Defendants to provide adequate medical treatment to Plaintiffs and Class members and did nothing to prevent this conduct from occurring and actively participated in such conduct.
7. Personal Property 168. Plaintiffs and Class members may no longer possess personal computers, laptop computers, and computer software or storage of any kind. Plaintiffs and Class members may not access printers, copiers, scanners, or the internet. This further isolates the Plaintiffs and Class members as they may not pursue online educational opportunities, engage with the outside world, or communicate with friends and family. 169. Plaintiffs and Class members are forced, at their own expense, to mail property that the MSOP deems contraband outside the facility or the property is destroyed. 170. If Plaintiffs and Class members possess property that is considered contraband, such as books and movies that are not on the approved media list, that property is confiscated. Plaintiffs and Class members may then submit a request to appeal the denial of their property, but such requests take the MSOP ten business days to handle. By the time that request has been processed, the property has been destroyed. Plaintiffs and Class members must submit at least two requests before they may file a grievance, which is well beyond the ten day period. The process to appeal the confiscation and destruction of property is not only overly burdensome, it is futile.
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171. Plaintiffs’ and Class members’ personal computers were removed from the MSOP in 2008 after Defendant Benson started his tenure. A patient network was established with four computers per 96 patients to perform word-processing and other simple tasks. The MSOP seized all removable media such as floppy disks and CD-ROMs and have instructed Plaintiffs and Class members that they will have to print their electronic files instead of allowing them to save files on electronic media to send to courts, attorneys, or family. This restriction is very burdensome on Plaintiffs and Class members because their only storage space is in the three lockers under their bed.
172. Plaintiffs and Class members have been denied and restricted from using or accessing the internet even though no individual reasonable suspicion has ever been established to warrant the restriction. The MSOP also already possesses the commercial software necessary to monitor an Internet Server, which is currently in place for employees of the MSOP
173. Completely preventing Plaintiffs and Class members from accessing the internet further isolates them from the world because they are not able to pursue online educational or employment opportunities or even communicate with friends and family via e-mail.
174. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the policies preventing the possession of various personal property and internet usage by Plaintiffs and Class members and did nothing to change these policies or prevent this conduct from occurring and actively participated in such conduct.
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8. Visitation 175. Patients use to be afforded liberal visitation policies, with visiting hours daily from 1-9 pm. Visitors were allowed to prepare food or order food to be delivered for consumption with patients. Contact between visitors and a patient was broadly permissible – hand holding, hugging, and holding children were all accepted. Visitors could drop off gifts and groceries on their visits with patients. 176. Currently, visitation is limited to Wednesdays through Sundays from 12:30 p.m. to 8:30 p.m. Visitors must now be pre-approved for visitation, submit to a criminal background check and submit to a pat search. Contact between Plaintiffs and Class members and a visitor is limited to one hug at the beginning and end of each visit. Smoking is not permitted during visitation and no food is allowed during visits. Plaintiffs and Class members are strip searched after visitation. MSOP routinely denies access to visitors and limits the size of a Plaintiffs’ and Class members’ visiting list as well as the number of visitors at one time. 177. The current visitation practices greatly discourage visitation and serve to further isolate Plaintiffs and Class members and hinder their therapeutic progress. 178. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the policies relating to visitation and did nothing to change these policies or prevent this conduct from occurring and actively participated in such conduct.
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9. Employment Options 179. Plaintiffs’ and Class members’ vocational work assignments are limited to menial labor. Plaintiffs and Class members must perform janitorial maintenance work on their living unit to progress in treatment or receive vocational placement. Many do not have access to facility jobs which would allow the Plaintiff or Class member to be more employable upon re-entering society such as plumbing, electrical, HVAC or any other vocational programs which would afford them meaningful job skills. 180. Regardless of a Plaintiff or Class member’s previous college degree or age, he must maintain certain educational qualifications to hold a vocational work assignment or advance in treatment. 181. The Legislative Auditor Report agrees with Plaintiffs’ assertions that employment and education opportunities at MSOP are lacking, finding that “there are limited work opportunities for clients” and that “[m]ost of Moose Lake clients’ time is unstructured.” Legislative Auditor Report at 65. Although the amount of time that a patient may work is limited by their progress in treatment, the upper limit of time working is 24 hours in a two week pay period. “Few, if any, clients are scheduled the maximum amount of work hours.” Id. 182. Vocational programming jobs at the MSOP pay minimum wage, however Plaintiffs and Class members are only given half that amount as wages by the MSOP. They are not provided an accounting of the remainder of their wages.
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183. The need for employment opportunities is especially pressing given the fact that Plaintiffs and Class members are billed over $100,000 a year for their treatment. Those bills accrue until the Plaintiff or Class member is released from MSOP.
184. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the policies and practices relating to employment options and did nothing to change these policies or practices or prevent this conduct from occurring and actively participated in such conduct.
10. Inadequate Diet 185. The diet for Plaintiffs and Class members must provide, at a minimum, the Recommended Daily Dietary Allowances established by the National Academy of Sciences. In developing such menus, the MSOP must utilize the moderate cost food plan of the United States Department of Agriculture. 186. The MSOP cannot spend less per patient for raw food, including donated food, than the most recent per person costs of the Moderate Cost Food Plan for the Northern Region of the United States, as compiled by the United States Department of Agriculture, for appropriate grouping of residents, discounted for any savings which might result from institutional procurement of such food. 187. The MSOP food contractor CWF continually shortens meals or simply does not deliver what is on the menu. Meals are poorly prepared and in some cases handled without due care, which has led to illness. Food proportions are rationed out at a lesser degree then what the menu states due to the practice of equating food volume with
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weight. The food Defendants provide to Plaintiffs and Class members is of extremely poor quality and includes by-product meat and old fruits and vegetables.
188. In the event that extra food is available after a meal is served, MSOP disposes of the food instead of making it available to Plaintiffs and Class members.
189. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the failure of MSOP to provide adequate food on a regular basis for Plaintiffs and Class members and did nothing to prevent or change this conduct from occurring.
11. Communication and Media Restrictions 190. The MSOP charges Plaintiffs and Class members exorbitant rates for using telephones. Currently, Plaintiffs and Class members are charged approximately 32 to 39 cents a minute to use the phone. The MSOP phone system is the only phone system Plaintiffs and Class members are allowed to use. 191. Plaintiffs and Class members are not allowed to use 800 numbers to conduct business. Calling cards are prohibited. Plaintiffs and Class members are very limited in the number of phone calls they are allowed to make. 192. The extremely high rates Plaintiffs and Class members are charged serve no therapeutic or security purpose. 193. Defendants limit which magazines and newspapers the Plaintiffs and Class members can read. They also censor and remove certain articles and sections of the newspapers that are given to the Plaintiffs and Class members to read.
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194. Defendants also have an unofficial policy of keeping Plaintiffs and Class members who have filed lawsuits against the MSOP or MSOP personnel separate from other Class members who have not filed lawsuits.
195. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of these practices and policies at the MSOP with regard to phone calls and limitations on media and did nothing to prevent or change this conduct from occurring.
12. Religious Restrictions 196. Defendants monitor Plaintiffs and Class members when they speak to clergy and religious volunteers, even though they have been screened by MSOP staff upon entry to the facility. They also monitor Plaintiffs and Class members during religious services. 197. Defendants do not provide Plaintiffs and Class members Kosher or Halal meals. Plaintiffs and Class members cannot wear yarmulkes, kufis, or religious medallions and pendants unless they are in their cells or at a religious service. 198. Plaintiffs and Class members are only allowed five religious items in their personal property, and Defendants limit the types of religious items Plaintiffs and Class members may have. 199. Defendants only allow Plaintiffs and Class members to have religious feasts once a year, despite the fact that Plaintiffs and Class members have offered to pay for those feasts.
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200. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of these practices and policies at the MSOP with regard to religious restrictions and did nothing to prevent or change this conduct from occurring. IV. Release from Civil Commitment to MSOP
201. The only way the Plaintiffs and Class members can be released from their civil commitment to the MSOP is through the statutory process for a reduction in custody.
202. Petitions for a reduction in custody must be filed with and considered by a panel of the special review board (“SRB”). The MSOP gives the SRB documents from the Plaintiffs’ and Class members’ records including the commitment order and any appeals, all prior SRB or judicial appeal panel findings, and relevant treatment information such as quarterly and annual reviews.
203. The recommendation of the SRB must be sent to the judicial appeal panel, which is composed of three judges and four alternate judges selected from among all active state judges. Decisions made by the judicial appeal panel are appealable to the Minnesota Court of Appeals within 60 days of the panel’s decision. No reduction in custody occurs without a majority approval of the judicial appeal board.
204. Pursuant to Minn. Stat. § 253B.185, subd. 11b, factors that are considered by the judicial appeal panel when deciding if transfer out of the secure treatment center is appropriate are: (1) the patient’s clinical progress and present treatment needs, (2) how necessary a secure facility is for continuing treatment, (3) the need for continued
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institutionalization, (4) what facility will best meet the patient’s needs, and (5) whether the transfer can be done while still providing for public safety. An example of a transfer would be moving a patient from the secure MSOP facility in Moose Lake to the MSOP facility in St. Peter, where the later phases of the treatment program occur.
205. Pursuant to Minn. Stat. § 253B.185, subd. 12, the factors that are considered when deciding if provisional discharge is appropriate are: (1) whether the patient’s course of treatment and present mental status indicate there is no longer a need for treatment and supervision in the patient's current treatment setting, and (2) whether the conditions of the provisional discharge plan will provide a reasonable degree of protection to the public and will enable the patient to adjust successfully to the community.
206. Pursuant to Minn. Stat. § 253B.185, subd. 18, a patient is not completely discharged from MSOP unless “it appears to the satisfaction of the judicial appeal panel, after a hearing and recommendation by a majority of the SRB, that the patient is capable of making an acceptable adjustment to open society, is no longer dangerous to the public, and is no longer in need of inpatient treatment and supervision.” The SRB and judicial appeals panel consider whether the public will be safe and whether the patient will be able to readjust to living in the community.
207. As of February 2012, only two MSOP patients had ever been placed on any kind of provisional discharge. One of them had his provisional discharge revoked after violating its conditions, and the other was only recently granted provisional discharge.
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208. In contrast, as of 2006, the following other states with civil commitment programs had placed the following number of people on supervised or conditional release: Arizona- 69, Illinois- 18, Wisconsin- 17, Washington- 12, Florida- 12, Kansas- 8, New Jersey- 8, Iowa- 4, California- 3, and Virginia- 3. As of 2006, the following other states with civil commitment programs had fully discharged the following number of people: Arizona- 81, California- 59, South Carolina- 32, Wisconsin- 26, New Jersey- 13, Kansas-13, Iowa- 9, Florida- 7, Washington- 4, Massachusetts- 4, Illinois- 2, and Virginia- 1. Monica Davey and Abby Goodnough, Doubts Rise as States Hold Sex Offenders After Prison, N.Y. Times (March 4, 2007), available at http://www.nytimes.com/2007/03/04/us/04 civil.html?pagewanted=1&_r=1&adxnnlx= 1329498616-AcmZtJ1J58oxOsZDKbLw6Q (last visited Aug. 7, 2013).
209. MSOP clinicians believe Plaintiffs and Class members are not being released because of public pressure to keep civilly committed sex offenders in a secure facility. Legislative Auditor Report at 87. Additionally, Governor Pawlenty issued an executive order in 2003 stating that no sex offenders could be released without a court order. Thus, the decision not to release Plaintiffs and Class members from the MSOP is based on political considerations, not professional judgment.
210. Defendants Jesson, Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the policies and practices that were implemented that prevented Plaintiffs and Class members from being released and did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct.
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CLAIMS Count I Failure to Provide Treatment in Violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution 211. Plaintiffs incorporate all previous allegations as if fully set forth herein. 212. The Fourteenth Amendment 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. Plaintiffs bring this Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983. 213. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to punishment as determined by reasonable professional judgment. Confinement that continues after the person no longer meets the statutory requirements for commitment violates due process. 214. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members 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. Plaintiffs and Class members are not progressing through the treatment program and are instead remaining in the first two phases of treatment for years.
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215. The acts and omissions of Defendants, specifically set forth above, constitute an unreasonable failure to provide Plaintiffs and Class members with treatment that is reasonably related to the purpose of their civil commitment and not tantamount to punishment in violation of clearly established rights under the Fourteenth Amendment to the United States Constitution and Article 1, Section 2 of the Minnesota Constitution.
216. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the policies and practices that were implemented at MSOP that prevented Plaintiffs and Class member from receiving treatment and did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct.
217. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above.
218. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count II Failure to Provide Treatment in Violation of the Minnesota Civil Commitment and
Treatment Act 219. Plaintiffs incorporate all previous allegations as if fully set forth herein.
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220. The Minnesota Civil Commitment and Treatment Act requires civilly committed sex offenders to be committed to a secure treatment facility. The statute promises that patients will receive individualized written program plans to be reviewed quarterly, periodic medical treatment and the right to receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary. See Minn. Stat. §§ 253B.185, 253B.03, subd. 7.
221. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members 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. Plaintiffs and Class members are not progressing through the treatment program and are instead remaining in the first two phases of treatment for years.
222. The acts and omissions of Defendants, specifically set forth above, constitute an unreasonable failure to provide Plaintiffs and Class members with the “proper care and treatment, best adapted, according to contemporary professional standards, to rendering future supervision unnecessary” in violation of clearly established rights Chapter 253B of the Minnesota Civil Commitment and Treatment Act.
223. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the policies and practices that were implemented at MSOP that prevented Plaintiffs and Class member from receiving treatment and did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct
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224. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above.
225. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count III Denial of Right to be Free from Punishment in Violation of the Fourteenth Amendment to the United States Constitution and the Minnesota Constitution 226. Plaintiffs incorporate all previous allegations as if fully set forth herein. 227. The Fourteenth Amendment 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. Plaintiffs bring this Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983. 228. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to punishment as determined by reasonable professional judgment. 229. Since 2008 when Defendant Benson became the Executive Director of MSOP, the program has changed drastically to become a punitive confinement facility.
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230. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members are double bunked in wet cells in a facility modeled after a prison. Plaintiffs and Class members do not have a reasonable grievance procedure to use when they are punished with BERs because the hearing board is made up of MSOP employees and any appeals are heard by the MSOP facility director.
231. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members are punished by having their rights to access activities and areas of the facility limited or completely taken away or by being placed in protective isolation in the HSA.
232. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members are not allowed to possess certain property and the grievance procedure for confiscated property leaves Plaintiffs and Class members no reasonable way to challenge the confiscation because by the time their grievance is heard, the property will have been destroyed.
233. Based on the policy and procedures created and implemented by Defendants, Plaintiffs and Class members are denied access to group therapy.
234. Based on the policy and procedures created and implemented by Defendants, Plaintiffs’ and Class members’ furniture is removed as punishment for alleged rule violations.
235. Based on the policy and procedures created and implemented by Defendants, Defendants can punish Plaintiffs and Class members by taking away their employment options.
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236. Based on the policy and procedures created and implemented by Defendants, they cause random searches of Plaintiffs’ and Class members’ persons, property, and cells. Plaintiffs and Class members are placed in shackles and black boxes anytime they leave the secure facility.
237. The punitive policies, procedures, and practices of Defendants are not reasonably related to the purpose for which Plaintiffs and Class members have been civilly committed, which is treatment. Denying Plaintiffs and Class members their liberty without a proper therapeutic purpose constitutes inherently punitive detention.
238. Defendants Jesson, Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the policies and practices that were implemented at MSOP the purpose of which was to punish Plaintiffs and Class member rather than to treat them and yet they each did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct.
239. The acts and omissions of Defendants constitute a deprivation of Plaintiffs’ and Class members’ clearly established constitutional right to be free from punishment in violation of Plaintiffs’ and Class members’ rights protected by the Fourteenth Amendment of the United States Constitution and Article 1, Section 2 of the Minnesota Constitution.
240. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations and suffered damages as a direct
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and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count IV Denial of Less Restrictive Alternative Confinement in Violation of the Fourteenth
Amendment to the United States Constitution and the Minnesota Constitution 241. Plaintiffs incorporate all previous allegations as if fully set forth herein. 242. The Fourteenth Amendment 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. Plaintiffs bring this Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983.
243. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed as determined by reasonable professional judgment.
244. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to punishment. Confinement that continues after the person no longer meets the statutory requirements for commitment violates due process.
245. The MSOP, as implemented, does not provide a less restrictive alternative to confinement at a MSOP secure facility. Therefore, it is not reasonably related to a legitimate government objective. Not all Plaintiffs and Class members have the same level of security needs, however, the MSOP as implemented does not account for this
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possibility. Also, if a Plaintiff or Class member no longer meets the statutory requirements for civil commitment, there is no less restrictive facility or program for them to enter. As such, the MSOP as implemented fails to satisfy the legitimate governmental objective of treating MSOP patients and preventing reoffending behavior.
246. Defendants Jesson, Benson, Johnston and Hébert, in their individual as well as their official capacity, each were aware of the ability for MSOP to establish less restrictive alternative treatment facilities yet they did nothing to establish such less restrictive alternative treatment facilities for Plaintiffs and Class members.
247. The acts and omissions of Defendants constitute a deprivation of Plaintiffs’ and Class members’ clearly established constitutional right to a less restrictive alternative placement in violation of their rights guaranteed under the Fourteenth Amendment to the United States Constitution and Article 1, Section 2 of the Minnesota Constitution.
248. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, , Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
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Count V Denial of Right to be Free from Inhumane Treatment in Violation of the Fourteenth
Amendment to the United States Constitution and the Minnesota Constitution 249. Plaintiffs incorporate all previous allegations as if fully set forth herein. 250. The Fourteenth Amendment 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. Plaintiffs bring this Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to punishment as determined by reasonable professional judgment. Confinement that continues after the person no longer meets the statutory requirements for commitment violates due process.
251. Based on the policy and procedures created and implemented by Defendants, they subject Plaintiffs and Class members to inhumane treatment through the punitive and unnecessarily restrictive living conditions at the MSOP. Plaintiffs and Class members are double bunked in wet cells. They have their rights restricted for minor violations of MSOP facility rules. They receive inadequate meals. They are subject to arbitrary discipline and decision-making by MSOP staff. They are also subject to inadequate medical treatment that has resulted in injury to Plaintiffs and Class members.
252. The acts and omission of Defendants constitute deprivation of Plaintiffs’ and Class members’ clearly established constitutional right to be free from inhumane
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treatment in violation of their rights guaranteed under the First and Fourteenth Amendments to the United States Constitution and Article 1, Section 5 of the Minnesota Constitution.
253. Defendants Jesson, Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the policies and practices that were implemented at MSOP that resulted in inhumane treatment Plaintiffs and Class member rather than to treat and yet they each did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct.
254. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count VI Denial of the Right to Religion and Religious Freedom in Violation of the First and
Fourteenth Amendments to the United States Constitution 255. Plaintiffs incorporate all previous allegations as if fully set forth herein. 256. The Fourteenth Amendment guarantees that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
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§ 1. Plaintiffs bring these Fourteenth Amendment and First Amendment claims pursuant to 42 U.S.C. § 1983.
257. Fourteenth Amendment due process requires that the conditions and duration of confinement have some reasonable relation to the purpose for which persons are committed. Civilly committed persons may be subjected to liberty restrictions reasonably related to legitimate government objectives and that are not tantamount to punishment as determined by reasonable professional judgment.
258. Civilly committed patients are entitled to some degree of protection under the First Amendment that is broader than that held by prisoners but less than what is held by members of free society. Policies or restrictions of First Amendment rights must be reasonably related to legitimate institutional and therapeutic interests.
259. Based on the policy and procedures created and implemented by Defendants, they are violating Plaintiffs’ and Class members’ rights to religious freedom through the MSOP’s policies, procedures and practices. Defendants cause Plaintiffs and Class members to be monitored when they are having private meetings with religious persons such as clergy members and during religious services. They do not permit Plaintiffs and Class members to wear religious apparel or possess certain religious property. Also, they do not allow Plaintiffs and Class members to communally celebrate their religious beliefs by having feasts.
260. These policies, procedures and practices are not related to a legitimate institutional or therapeutic interest of the Defendants.
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261. The acts and omissions of Defendants constitute unreasonable restrictions on Plaintiffs’ and Class members’ clearly established rights to freedom of speech, expression, religion, privileges, and immunities guaranteed by the First and Fourteenth Amendments to the United States Constitution.
262. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the policies and practices that resulted in the unreasonable restrictions on Plaintiffs’ and Class members’ right to speech, expression, and religion, and yet they each did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct
263. Plaintiffs Bolte, Braun, Daywitt, Hausfeld and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count VII Unreasonable Restriction of Free Speech and Free Association in Violation of the First Amendment to the United States Constitution and the Minnesota Constitution
264. Plaintiffs incorporate all previous allegations as if fully set forth herein. 265. Civilly committed patients are entitled to some degree of protection under the First Amendment that is broader than that held by prisoners but less than what is held
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by members of free society. Policies or restrictions of First Amendment rights must be reasonably related to legitimate institutional and therapeutic interests as determined by reasonable professional judgment. Plaintiffs bring this First Amendment claim pursuant to 42 U.S.C. § 1983.
266. Based on the policy and procedures created and implemented by Defendants, they have place restrictions on free association by limiting contact among Plaintiffs and Class members, as well as other patients.
267. Based on the policy and procedures created and implemented by Defendants, they have limited the ability of Plaintiffs and Class members to use the phone by charging a prohibitively high amount for phone use. Also, Plaintiffs and Class members are not able to call 800 numbers or use calling cards.
268. Based on the policy and procedures created and implemented by Defendants, they have limited Plaintiffs’ and Class members’ access to certain newspapers and magazines and remove or censor articles from the newspapers and magazines that are provided.
269. These policies, procedures and practices are not related to a legitimate institutional or therapeutic interest of the Defendants.
270. The acts and omissions of Defendants constitute an unreasonable restriction on Plaintiffs’ and Class members’ clearly established rights to freedom of speech, expression, religion, privileges, and immunities guaranteed by the First Amendment of the United States Constitution and Article 1, Section 2 of the Minnesota Constitution.
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271. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the policies and practices that resulted in the unreasonable restrictions on Plaintiffs’ and Class members’ right to speech, expression, and religion, and yet they each did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct
272. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count VIII Unreasonable Searches and Seizures in Violation of the Fourth Amendment to the
United States Constitution and the Minnesota Constitution 273. Plaintiffs incorporate all previous allegations as if fully set forth herein. 274. Under the Fourth Amendment, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” In an institutional setting, the need for the search must be balanced against the invasion of personal rights that the search entails. Plaintiffs bring this Fourth Amendment claim pursuant to 42 U.S.C. § 1983.
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275. Defendants consistently violated Plaintiffs’ and Class members’ Fourth Amendment Rights through their search policies, procedures and practices.
276. As part of their practices and policies, Defendants conduct random cell searches without any probable cause or purpose. They perform “window checks” daily on the pretext that they need to make sure Plaintiffs and Class members are not going to escape through the five inch wide windows.
277. As part of their practices and policies, Defendants cause strip searches to be conducted on Plaintiffs and Class members every time they leave the secure perimeter even though Plaintiffs and Class members are always accompanied by MSOP staff.
278. As part of their practices and policies, Defendants cause random pat downs of Plaintiffs and Class members without any probable cause or purpose.
279. These search policies, procedures and practices unnecessarily invade the personal rights of Plaintiffs and Class members.
280. The acts and omissions of Defendants constitute unreasonable searches and seizures in violation of Plaintiffs’ and Class members’ clearly established rights guaranteed by the Fourth Amendment of the United States Constitution and Article 1, Section 10 of the Minnesota Constitution.
281. Defendants Benson, Moser, Lundquist, Zimmerman, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the policies and practices that resulted in the unreasonable search and seizures against Plaintiffs and Class members and yet they each did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct.
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282. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count IX Minnesota Statute § 253B is Unconstitutional as Applied 283. Plaintiffs incorporate all previous allegations as if fully set forth herein. 284. A statute that violates constitutional rights when enforced is unconstitutional as applied to those whose rights are violated. 285. Defendants are violating Plaintiffs’ and Class members’ constitutional rights through their enforcement of Minn. Stat. § 253B, under which all Plaintiffs and Class members are civilly committed to MSOP. 286. Non-criminal confinement must have a non-criminal purpose. The civil commitment statute mandates that during involuntary detention or commitment pursuant to Chapter 253B, the patient is entitled to all constitutionally required care and treatment. Plaintiffs and Class members are entitled to such treatment as will give them a realistic opportunity to meet the statutory requirements to be released from confinement, as determined by an appropriate mental health professional and that is within the scope of acceptable mental health treatment.
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287. The civil commitment standards under Minn. Stat. § 253B are inconsistently implemented, as evidenced by the variance in the number of Plaintiffs and Class members civilly committed to MSOP over time and over various geographic locations. This inconsistent implementation demonstrates that civil commitment determinations are not based on professional judgment. Rather, they are arbitrary and politically influenced.
288. The release standards are also inconsistent and inherently biased. The failure to release any Plaintiffs or Class members over the life of the MSOP program demonstrates that the treatment program is a result of orders from political leaders and is not based on professional judgment.
289. Defendants’ implementation of Minn. Stat. § 253B violates Plaintiffs’ and Class members’ constitutional rights to due process protections. Additionally, the application of Minn. Stat § 253B to Plaintiffs and Class members is punitive, not therapeutic, in nature, rendering it unconstitutional.
290. The acts and omissions of Defendants render Minn. Stat. § 253B unconstitutional as applied.
291. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
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Count X Minnesota Statute § 253B Violates the Equal Protection Clause
of the Fourteenth Amendment as Applied 292. Plaintiffs incorporate all previous allegations as if fully set forth herein. 293. The Fourteenth Amendment entitles people to equal protection under the law. Plaintiffs bring this Fourteenth Amendment claim pursuant to 42 U.S.C. § 1983. 294. The Fourteenth Amendment 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. 295. Decisions regarding civil commitment of sex offenders in Minnesota are made in a decentralized manner and this system leads to significant geographic variations in petition and commitment rates across the state, which is unexplained by the characteristics of offender and their crimes. 296. The data collected by the Office of the Legislative Auditor shows disparity in how Minnesota’s civil commitment statute is applied throughout the state without any rational basis for treating similarly situated individuals differently. 297. The application of commitment procedures under Minn. Stat. §253B, which directly results in the loss of a fundamental right of freedom, is being applied differently to similarly-situated individuals, in violation of the clearly established equal protection rights under the Fourteenth Amendment. 298. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have
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been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count XI Violation of Court Ordered Treatment 299. Plaintiffs incorporate all previous allegations as if fully set forth herein. 300. Civil commitment to the MSOP occurs after a judicial proceeding. When a judge ruled the Plaintiffs and Class members were SPP or SDP under Minn. Stat. § 253B, that is a determination that they must enter a secure treatment facility. Therefore, the court has ordered that Plaintiffs and Class members receive proper sex offender treatment. 301. Plaintiffs and Class members are not receiving adequate treatment. 302. Plaintiffs and Class members 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. Plaintiffs and Class members are not progressing through the treatment program and are instead getting stuck in the first two phases of treatment. 303. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual as well as their official capacity, were each aware of the policies and practices that were implemented at MSOP that prevented Plaintiffs and Class member
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from receiving treatment and did nothing to changes these policies and practices or to prevent this conduct from occurring and actively participated in such conduct.
304. The acts and omissions of Defendants constitute a failure to satisfy court ordered treatment to Plaintiffs and Class members.
305. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and Class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count XII Breach of Contract by Defendants Jesson, Benson, Moser, Lundquist, Johnston, and
Hébert 306. Plaintiffs incorporate all previous allegations as if fully set forth herein. 307. Defendants’ failure to provide Plaintiffs and Class members the treatment contracted for in the Consent for Participation in Sex Offender Treatment form constitutes a breach of contract. Plaintiffs and Class members have been damaged as a direct and proximate result of Defendants’ breach because they have not been provided adequate treatment and have been restrained indefinitely in the MSOP program. 308. MSOP has breached its contract to provide treatment to the Plaintiffs and Class members who signed the form consenting to sex offender treatment. The type and
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amount of treatment provided and the staff that provides that treatment falls well below constitutional standards, well below contact standards and well below the reasonable performance of the treatment program created by MSOP’s own policies.
309. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, were each aware that each Plaintiff and Class member entered into a contract for treatment at the time they were civilly committed to MSOP.
310. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, were aware of the failure to progress Plaintiffs and Class members through the different treatment phases to the point that they could be conditionally or unconditionally released.
311. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, actively participated in and supported the inadequate treatment policies as implemented by MSOP, which resulted in the failure to comply with contract to provide treatment by MSOP.
312. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, were aware that the MSOP treatment program as implemented had only conditionally released a single person and had never unconditionally released anyone committed to MSOP.
313. Yet Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, each failed to take action to
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change the inadequate treatment policies and practices at MSOP and, in fact, endorsed the use of the policies and practices by MSOP employees.
314. The acts and omissions of Defendants constitute a breach of contract. 315. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
Count XIII Tortious Interference with Contract and Intentional Violation of Minn. Stat.
§253B.03, subd. 7 by Defendants Jesson, Benson, Moser, Lundquist, Johnston, and Hébert
316. Plaintiffs incorporate all previous allegations as if fully set forth herein. 317. Upon commitment, each patient must sign a document entitled “Consent for Participation in Sex Offender Treatment.” Patients can either sign the portion of the contract saying they consent to sex offender treatment or the portion that says they refuse to participate in treatment. The patient’s Clinical Team Therapist then signs the contract as well. 318. The contract provides that the patient’s therapist has discussed the course of treatment at the MSOP, that the patient received information about the levels of care and
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stages of treatment, that the patient has received the goals and behavioral expectations at the MSOP, that upon completion of treatment the MSOP will support their petition for provisional discharge, that each stage of treatment has specific goals and behavioral expectations, that services such as education and vocation are provided, that failure to participate in treatment may prolong civil commitment status, that they will need to reveal information about past crimes, and that treatment officials must report any previously unreported child or vulnerable adult victims they learn of from the patient.
319. Additionally, Minn. Stat. §253B.03, subd. 7 state that “A person receiving services under this chapter has the right to receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary.”
320. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, were each aware that each Plaintiff and Class member entered into a contract for treatment at the time they were civilly committed to MSOP and that a person committed to MSOP has the right to receive proper care and treatment, best adapted, according to contemporary professional standards, to render further supervision unnecessary.
321. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, were aware of the failure to progress Plaintiffs and Class members through the different treatment phases to the point that they could be conditionally or unconditionally released.
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322. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, actively participated in and supported the inadequate treatment policies as implemented by MSOP, which resulted in the failure to comply with contract to provide treatment by MSOP and an intentional violation of the requirements under Minn. Stat. §253B.03, subd. 7.
323. Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, were aware that the MSOP treatment program as implemented had only conditionally released a single person and had never unconditionally released anyone committed to MSOP.
324. Yet Defendants Jesson, Benson, Moser, Lundquist, Johnston and Hébert, in their individual capacity as well as their official capacity, each failed to take action to change the inadequate treatment policies and practices at MSOP described above, and, in fact, endorsed the use of the policies and practices by MSOP employees.
325. Plaintiffs Karsjens, Gamble, DeVillion, Lonergan, Noyer, Rud, Barber, Bolte, Steiner, Braun, Thuringer, Daywitt, Foster, Hausfeld and Class members have been subject to and injured by these alleged violations and suffered damages as a direct and proximate result of Defendants’ acts and omissions as specifically set forth above. Unless relief is granted, Plaintiffs and class members will continue to be injured by and suffer damages as a direct and proximate result of Defendants’ acts and omissions specifically set forth above.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for relief as follows: a. That the Court determine that this action may be maintained as a class
action under Rules 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure, that Plaintiffs be certified as class representative and Plaintiffs’ counsel be appointed as counsel for the Class; b. That the unlawful conduct alleged herein be declared to be illegal and in violation of the federal and state constitutional, statutory and common law claims alleged herein; c. That the Court order Defendants to provide proper treatment, appropriate less restrictive alternatives, and in general operate the MSOP without an improper purpose of punishment; d. That Defendants be enjoined from engaging in the same or similar practices alleged herein; e. That Minn. Stat. § 253B be declared unconstitutional; f. That Plaintiffs and Class members recover actual or nominal damages, as provided by law, determined to have been sustained as to each of them, and that judgment be entered against Defendants on behalf of Plaintiffs and Class members; g. That Plaintiff and Class members receive pre-judgment and post-judgment interest as allowed by law;
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h. That Plaintiff and Class members recover their costs of the suit, attorneys’ fees and expenses as allowed by law; and
i. All other relief allowed by law and equity. DEMAND FOR JURY TRIAL
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand a trial by jury on all issues so triable.

Dated: August 8, 2013

s/Daniel E. Gustafson Daniel E. Gustafson (#202241) Karla M. Gluek (#238399) David A. Goodwin (#386715) Raina C. Borrelli (#392127) Gustafson Gluek PLLC Canadian Pacific Plaza 120 South Sixth Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 333-8844 Fax: (612) 339-6622
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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.
Emily Johnson Piper, Kevin Moser, Peter Puffer, Nancy Johnston, Jannine Hébert, and Ann Zimmerman, in their official capacities,
Defendants.

Civil No. 11-3659 (DWF/TNL)
MEMORANDUM OPINION AND ORDER

Daniel E. Gustafson, Esq., Karla M. Gluek, Esq., David A. Goodwin, Esq., Raina Borrelli, Esq., and Eric S. Taubel, Esq., Gustafson Gluek PLLC, counsel for Plaintiffs.
Scott H. Ikeda, Adam H. Welle, and Aaron Winter, Assistant Attorneys General, Minnesota Attorney General’s Office, counsel for Defendants.

INTRODUCTION This matter is before the Court following remand on three separate matters. First, the parties dispute the proper disposition of Plaintiffs’ remaining Phase One counts in light of the Eighth Circuit’s decision. (See Doc. Nos. 1095, 1097, 1100, 1102.) Second, Defendants seek summary judgment on all Phase Two counts. (See Doc. Nos. 1095,

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1097, 1102, 1105.) Plaintiffs oppose summary judgment and assert that the class should be decertified with respect to these counts. (See Doc. Nos. 1100, 1106.) Third, Defendants ask the Court to apportion the cost of the Rule 706 Experts to Plaintiffs. (Doc. Nos. 1095, 1097, 1102.) Plaintiffs oppose this request. (Doc. No. 1100.) For the reasons set forth below, all remaining claims raised in Plaintiffs’ Third Amended Complaint shall be dismissed with prejudice. The Court shall reserve determination on the final apportionment of Rule 706 Expert costs.
BACKGROUND This case has an extensive and complex history which has been discussed at length in prior orders. The Court incorporates by reference the factual background in the Court’s February 2, 2015 Memorandum Opinion and Order addressing Defendants’ prior Motion for Summary Judgment (Doc. No. 828), as well as the factual findings from Phase One of trial contained in the Court’s June 17, 2015 Findings of Fact, Conclusions of Law, and Order (Doc. No. 966). The Court assumes familiarity with these and other relevant orders and only briefly summarizes the relevant background here. Plaintiffs are individuals residing at the Minnesota Sex Offender Program (the “MSOP”) who are civilly committed under Minnesota Statute § 253D, the Minnesota Civil Commitment and Treatment Act (“MCTA”). (See Doc. No. 635 (“Third Am. Compl”) ¶ 2.) The fourteen named Plaintiffs represent a class certified pursuant to Federal Rule of Civil Procedure 23(b)(2), consisting of “[a]ll patients currently civilly committed to [the MSOP] pursuant to Minn. Stat § 253B.” (See Doc. No. 203.) Plaintiffs’ lawsuit challenges the constitutionality of the MCTA on its face and as
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applied, as well as various aspects of the MSOP’s operation and treatment regime. (See generally Third Am. Compl. ¶ 1.)
Specifically, Plaintiffs’ Third Amended Complaint raises 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 Hébert have breached Plaintiffs’
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contractual rights; and (XIII) Defendants Jesson, Benson, Moser, Lundquist, Johnston,
and Hébert have tortiously interfered with contractual rights and have intentionally
violated Minn. Stat. § 253B.03, subd. 7. (Third Am. Compl. at 59-84.)
On February 2, 2015, the Court issued an order denying Defendants’ Motion for
Summary Judgment on all counts in Plaintiffs’ Third Amended Complaint. (Doc.
No. 828.) The matter proceeded to trial in two phases. (See Doc. No. 647.) The Court
explained the two phases of trial as follows:
Phase One will be comprised of the presentation of evidence and argument on the following issues: (1) whether Minnesota Statute Chapter 253D is unconstitutional on its face and as applied; (2) whether the treatment provided is constitutionally and/or statutorily infirm; (3) whether the treatment program complies with court-ordered treatment; (4) whether confinement is tantamount to unconstitutional punitive detention; and (5) whether less restrictive alternatives to confinement are constitutionally required. . . . Phase Two shall be comprised of the presentation of evidence and argument on the following issues: (1) whether confinement conditions constitute unconstitutional restrictions on freedom of speech, religion, and association; (2) whether confinement procedures constitute unconstitutional searches and seizures; (3) whether the treatment program and its implementation constitutes a breach of contract, tortious interference with contract, and intentional violation of Minnesota Statute Section 253B.03(7).
(Id. at 2.) Phase One of trial took place between February 9, 2015 and March 18, 2015.
(See Doc. Nos. 839, 908.)
On June 17, 2015, the Court issued its Findings of Fact, Conclusions of Law, and
Order, granting Plaintiffs’ request for declaratory relief on Counts I and II. (Doc.
No. 966 at 75.) The Court stated, “[b]ecause the Court finds the program is
unconstitutional on its face and as applied (Counts I and II), and because any remedy
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fashioned will address the issues raised in the remaining Phase One Counts, the Court need not address Counts III, V, VI, and VII.” (Id. at 65.) The Court noted that its “determination that the MSOP and its governing civil commitment statutes are unconstitutional concludes Phase One of this case.” (Id. at 5.) The Court also reiterated that “Counts VIII, IX, and X, will be tried in the second phase of trial (‘Phase Two’).”1 (Id. at 76.) On October 29, 2015, the Court issued a First Interim Relief Order directing injunctive relief to remedy the court’s findings of unconstitutionality. (Doc. No. 1035.)
Defendants appealed the Court’s June 17, 2015 and October 29, 2015 Orders to the Eighth Circuit Court of Appeals. (Doc. No. 1036.) On January 3, 2017, the Eighth Circuit issued an opinion “revers[ing] the district court’s finding of a constitutional violation and vacat[ing] the injunctive order.” Karsjens v. Piper, 845 F.3d 394, 411 (8th Cir. 2017). It remanded the case to this Court “for further proceedings on the remaining claims in the Third Amended Complaint.” Id.
Following a series of stays during which Plaintiff sought further review at the United States Supreme Court, the Court and the parties met for a Status Conference on October 25, 2017. (See Doc. Nos. 1080, 1086, 1093.) Thereafter, Defendants filed a renewed Motion for Summary Judgment, seeking summary judgment on Counts VIII, IX, and X, as well as apportionment of the Rule 706 Expert costs to Plaintiffs. In briefing this motion, Defendants also briefed the issue of how the Court should address the remaining Phase One counts (Counts III, V, VI, and VII) in light of the Eighth Circuit’s
1 On August 10, 2015, Counts IV, XI, XII, and XIII were dismissed with prejudice. (Doc. No. 1005.)
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decision. (Doc. No. 1095.) The parties fully briefed these issues, and the Court heard argument on February 5, 2018. (Doc. Nos. 1097, 1100, 1102, 1103.) The Court notes additional facts as necessary to resolve the pending matters, below.
DISCUSSION I. Remaining Phase One Counts
Defendants argue that the remaining claims in Phase One should be dismissed because these claims were determined by the Eighth Circuit’s decision in Karsjens, 845 F.3d 394 (8th Cir. 2017). Specifically, Defendants assert that, “[f]or the same reasons the Eighth Circuit reversed the Court’s substantive due process analysis as to Counts I and II, the substantive due process claims asserted in Counts III, V, VI, and VII should also be dismissed.” (Doc. No. 1097 at 4.) According to Defendants, the remaining Phase One counts must be dismissed because the Eighth Circuit has already reviewed the trial record and determined that Defendants did not engage in conduct that shocks the conscience. Defendants also contend that the Eighth Circuit implicitly decided Counts III, V, VI, and VII, precluding further review of these claims on remand.2
Plaintiffs, on the other hand, argue that the remaining Phase One counts “have yet to be decided by the Court, and that their outcome is not dictated by the Eighth Circuit’s decision with respect to Counts I and II.” (Doc. No. 110 at 1-2.) Plaintiffs urge the Court
2 Defendants also argue that the remaining counts in Phase One must be dismissed for lack of subject matter jurisdiction to the extent they are based on allegations that Defendants have violated Minnesota state law. Plaintiffs do not dispute that such claims are subject to dismissal under Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984), and the Eleventh Amendment. Thus, the Court shall grant Defendants’ motion on this issue.
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to make “a full analysis and ruling on these claims” and to conclude that Plaintiffs’ remaining substantive due process claims are supported by evidence of “both conscience-shocking conduct by Defendants and the violation of a fundamental liberty right such that they should prevail.” (Id. at 2, 4.) According to Plaintiffs, “[i]f the Eighth Circuit’s opinion is read as broadly as Defendants suggest, then there is no path for Plaintiffs, or any civilly committed sex offender, to ever prevail on a substantive due process claim.” (Id. at 4-5.) Plaintiffs argue that the trial record supports a determination in their favor on the remaining substantive due process claims in Counts III, V, VI, and VII because Defendants were deliberately indifferent to a substantial risk of harm to Plaintiffs, and such conduct amounts to conscience-shocking behavior.3
A. The Eighth Circuit’s Opinion In the Eighth Circuit’s Karsjens opinion, the appellate court reversed this Court’s liability findings on Counts I and II of Plaintiffs’ Third Amended Complaint. 845 F.3d at 411. In doing so, the Eighth Circuit rejected this Court’s application of a strict scrutiny standard to Plaintiffs’ facial and as-applied substantive due process claims. Id. at 407. On Plaintiffs’ facial due process claim in Count I, the Eighth Circuit stated that “the Supreme Court . . . 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. Thus, it held that “the proper standard of scrutiny to be applied . . . is
3 Plaintiffs acknowledge that the Eighth Circuit’s decision with respect to Count II addressed overlapping allegations as Counts III and VI, relating to treatment and the lack of less restrictive alternatives. However, Plaintiffs argue that “the Court should specifically address the allegations in Counts III and IV and apply the ‘shocks-the-conscience’ standard to those counts.” (Id. at 7 n.5.)
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whether MCTA bears a rational relationship to a legitimate government purpose.” Id. at 407-08. The Court held that the MCTA met this “highly deferential” standard, reversing this Court’s conclusion that the statute was facially unconstitutional for six specified reasons.4 See id. at 409-10.
With regard to Count II, Plaintiffs’ as-applied substantive due process challenge, the Eighth Circuit held that “the court should determine both whether the state defendants’ actions were conscience-shocking and if those actions violated a fundamental liberty interest.” Id. at 408. The Eighth Circuit clarified that actions that meet the conscience-shocking standard must be “egregious or outrageous” and “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. (citations omitted).
4 As summarized by the Eighth Circuit, the six reasons this Court identified for finding the MCA unconstitutional as applied included the following:
(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 the 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. Karsjens v. Piper, 845 F.3d 394, 408-09 (8th Cir. 2017).
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In discussing whether Plaintiffs’ allegations implicated a fundamental liberty
interest, the Eighth Circuit stated, “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.’” Id. at 410 (quoting Strutton v. Meade, 668 F.3d 549, 557 (8th Cir. 2012)).
It also noted that “the Supreme Court [has] recognized [that] the Constitution does not
prevent ‘a State from civilly detaining those for whom no treatment is available.’” Id. at
410 (quoting Kansas v. Hendricks, 521 U.S. 346, 356 (1997)).
The Eighth Circuit then turned to the shocks-the-conscience prong of the
substantive due process analysis and stated that “[n]one 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.” Id.
at 410. These six grounds included the following:
(1) Defendants do not conduct periodic independent risk assessments or otherwise evaluate whether an individual continues to meet the initial commitment criteria or the discharge criteria if an individual does not file a petition; (2) those risk assessments that have been performed have not all been performed in a constitutional manner; (3) individuals have remained confined at the MSOP even though they have completed treatment or sufficiently reduced their risk; (4) discharge procedures are not working properly at the MSOP; (5) although section 253D expressly allows the referral of committed individuals to less restrictive alternatives, this is not occurring in practice because there are insufficient less restrictive alternatives available for transfer and no less restrictive alternatives available for initial commitment; and (6) although treatment has been made available, the treatment program’s structure has been an institutional failure and there is no meaningful relationship between the treatment program and an end to indefinite detention.
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Id. at 402–03. The court explained, “[h]aving 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.” Id. at 410-11. It then reversed the findings of a constitutional violation, vacated the injunctive order, and “remand[ed] this matter to the district court for further proceedings on the remaining claims in the Third Amended Complaint.” Id. at 411.
B. Scope of Review on Remand As discussed above, the parties dispute whether the remaining Phase One counts were explicitly or implicitly decided by the Eighth Circuit. Defendants contend that the Eighth Circuit explicitly, or at a minimum implicitly, decided these claims. Plaintiffs dispute that the Eighth Circuit decided these claims, emphasizing that it never even mentioned them in its opinion. Under the law of the case doctrine, “the district court is not free on remand to reconsider any question finally disposed of by the court of appeals.” Pediatric Specialty Care, Inc. v. Ark. Dep’t of Human Servs., 364 F.3d 925, 931 (8th Cir. 2004). However, the court may consider “any issue ‘not expressly or impliedly disposed of on appeal.’” Id. (citation omitted). If the appellate court directs the lower court to consider a specific claim upon remand, that “does not restrict its decision to only that matter.” Id. Rather, any unresolved claims are “within the province of the district court to entertain.” Id. Even where the language in an appellate decision appears broad, “it is necessarily limited
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by the context of the claims and issues decided in that appeal.” See Forest Park II v. Hadley, 408 F.3d 1052, 1057 (8th Cir. 2005); see also U.S. Fid. & Guar. Co. v. Concrete Holding Co., 168 F.3d 340, 342 (8th Cir. 1999) (“Subjects an appellate court does not discuss, because the parties did not raise them, do not become the law of the case by default.” (quoting Bone v. City of Lafayette, Ind., 919 F.2d 64, 66 (7th Cir. 1990))).
Counts III, V, VI, and VII all arise under the due process clause of the Fourteenth Amendment5 and challenge Defendants’ acts and omissions relating to the creation and implementation of various policies at the MSOP. (See Third Am. Compl. ¶¶ 254-61, 269-97.) Count III raises a failure-to-provide treatment claim. (Id. ¶¶ 254-61.) Count V alleges a denial of the right to be free from punishment. (Id. ¶¶ 269-83.) Count VI asserts a denial of the right to less restrictive alternative confinement. (Id. ¶¶ 284-91.) Finally, Count VII alleges a denial of the right to be free from inhumane treatment. (Id. ¶¶ 292-97.) In its June 17, 2015 Findings of Fact, Conclusions of Law, and Order, the Court declined to resolve these counts, stating that “[b]ecause the Court finds the program is unconstitutional on its face and as applied (Counts I and II), and because any remedy fashioned will address the issues raised in the remaining Phase One Counts, the Court need not address Counts III, V, VI, and VII.” (Doc. No. 966 at 65.)
None of these claims were identified by Defendants in their list of issues being appealed to the Eighth Circuit. (See Doc. No. 1036-1 at 2.) Thus, the Eighth Circuit’s
5 To the extent these counts arise under the Minnesota Constitution, they are dismissed with prejudice. See supra note 2.
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opinion did not specifically reference these claims.6 See generally Karsjens, 845 F.3d 394. The Eighth Circuit only analyzed the Court’s constitutionality determinations with respect to Counts I and II, Plaintiffs’ facial and as-applied due process challenges to the MCTA. See id. at 406-11. Although the Eighth Circuit’s analysis of these claims addressed a number of issues that overlap with the Phase One counts that were left undecided, Counts III, V, VI, and VII were neither expressly nor impliedly decided by the Eighth Circuit on appeal. Thus, on remand, these claims remain viable, and the Court shall resolve these claims on their merits in light of the Eighth Circuit’s decision.
C. Remaining Phase One Claims on the Merits As noted, Plaintiffs’ remaining Phase One claims allege Fourteenth Amendment due process violations arising out of Defendants’ acts and omissions in connection with the operation of the MSOP. These claims are thus governed by the substantive due process standard outlined in the Eighth Circuit’s Karsjens opinion. Specifically, to hold Defendants liable under Counts III, V, VI, and VII, the court must conclude that “the state defendants’ actions were conscience-shocking and [that] those actions violated a fundamental liberty interest.” Karsjens, 845 F.3d at 408. Plaintiffs’ arguments with respect to these counts center on the punitive nature of the MSOP combined with treatment and release procedures that result in indefinite
6 In discussing this Court’s liability order, the Eighth Circuit explained, “[t]he court noted it would address the remaining claims in the Third Amended Complaint in a second phase of the trial and in a separate order.” Karsjens, 845 F.3d at 403. This reference appears to relate to Counts IV, XI, XII, and XIII which the Court stated “will be addressed under separate Order,” as well as Counts VII, IX, and X which the Court stated “will be tried in the second phase of trial.” (Doc. No. 966 at 76.)
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confinement. The Eighth Circuit has recently affirmed that “a committed acquittee is entitled to release once he is no longer dangerous or no longer mentally ill.” Andrews v. Schafer, 888 F.3d 981, 984 (8th Cir. 2018). While this proposition may support an individual’s challenge to a court order that restrains his liberty, however, to successfully assert a substantive due process claim in this context, the plaintiff must establish both parts of the Eighth Circuit’s two-part inquiry outlined in Karsjens. Id. at 984. The Eighth Circuit’s established standard affirms that “[i]n the context of substantive due process, an individual must overcome a very heavy burden to show a violation of the Fourteenth Amendment.” Hall v. Ramsey Cty., 801 F.3d 912, 917 (8th Cir. 2015).
1. Failure to Provide Treatment Claim (Count III) Turning to Plaintiff’s failure-to-provide-treatment claim in Count III, the Eighth Circuit stated in Karsjens, “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.’” Karsjens, 845 F.3d at 410 (quoting Strutton, 668 F.3d at 557). In Strutton v. Meade, the Eighth Circuit had held that the plaintiff, an individual civilly committed under the Missouri Sexually Violent Predators Act, “does not have a fundamental due process right to sex offender treatment.” 668 F.3d at 557. This was so even though Missouri’s statutory scheme authorized commitment “for control, care and treatment until such time as [the offender’s] mental abnormality has so changed that [he] is safe to be at large.” Id. (quoting Mo. Rev. Stat. § 632.495(2)). The Eighth Circuit
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applied the shocks-the-conscience standard and held that “[a]lthough the treatment [plaintiff] received may have been less than ideal, and perhaps even inadequate by professional standards, it was not so lacking as to shock the conscience.” Id. at 558.7
Notwithstanding the Eighth Circuit’s comments in Karsjens, Plaintiffs contend that the Supreme Court has not determined whether committed individuals have a constitutional right to treatment under the circumstances of this case. Plaintiffs argue that their allegations in Count III center on the manner in which Defendants’ treatment program blocks Plaintiffs’ release from the MSOP “rather than alleging a constitutional right to treatment per se.” (Doc. No. 1100 at 8.) In this context, Plaintiffs argue that “[t]he multitude of issues with the MSOP’s treatment program, when considered as a system-wide problem, reach the level of conscience shocking behavior that violates due process.” (Id. at 9.) Plaintiffs also assert that this claim implicates the “fundamental liberty right to be free from commitment, or bodily restraint, when the basis for the commitment no longer exists.” (Id. at 14.) Plaintiffs dispute that the Eighth Circuit established that Plaintiffs have no such fundamental liberty right. With respect to Count III, Defendants argue that “[t]he Eighth Circuit explicitly rejected Plaintiffs’ contention
7 This Court previously distinguished Strutton based on differences between Minnesota and Missouri’s statutory mandate directing treatment and because “the plaintiff’s claims [in Strutton] 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.” (Doc. No. 828 at 21 n.27 (quoting Doc. No. 427 at 24).) The Eighth Circuit’s reference to Strutton in its Karsjens opinion suggests that these bases for distinguishing Strutton do not materially impact the relevant substantive-due-process inquiry applicable to the Plaintiffs’ claims in this case.
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that they have a fundamental substantive due process right to treatment.” (Doc. No. 1097 at 5.)
The Court concludes that Plaintiffs have failed to establish Defendants’ liability under Count III. In this circuit, committed individuals do not have a recognized “due process right to appropriate or effective or reasonable treatment of the illness or disability that triggered the patient’s involuntary confinement.” Karsjens, 845 F.3d at 410 (quoting Strutton, 668 F.3d at 557). Furthermore, the Eighth Circuit appears to reject the notion that committed individuals such as Plaintiffs have a fundamental liberty interest in freedom from unjustified confinement. See id. at 407 (“[T]he Supreme Court . . . has never declared that persons who pose a significant danger to themselves or others possess a fundamental liberty interest in freedom from physical restraint.”). Finally, the Eighth Circuit reviewed the Phase One trial record, including this Court’s finding that “although treatment has been made available, the treatment program’s structure has been an institutional failure and there is no meaningful relationship between the treatment program and an end to indefinite detention.” See id. at 403, 410-11. Nonetheless, the Eighth Circuit held that Defendants’ conduct was not conscience-shocking to support substantive due process liability. See id. at 410-11 (“[T]he 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.”). Thus, under controlling Eighth Circuit precedent, Plaintiffs’ Fourteenth Amendment failure-to-provide treatment claim lacks merit.
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2. Lack of Less Restrictive Alternatives Claim (Count VI) Count VI asserts a related claim that Defendants have infringed upon Plaintiffs’ constitutionally-protected right to less restrictive alternative confinement under the Fourteenth Amendment. Plaintiffs argue that the lack of less restrictive alternatives available to committed individuals is conscience-shocking. In particular, Plaintiffs contend that “[i]ntentionally failing to provide confinement that is appropriate for the varying levels of risk presented by Plaintiffs and the Class, and actually knowing that there are committed individuals who could be properly treated and managed in less restrictive settings, is conscience shocking.” (Doc. No. 1100 at 11.) Plaintiffs suggest that Defendants’ conduct amounts to deliberate indifference that supports finding a Fourteenth Amendment substantive due process violation. Defendants, on the other hand, argue that “[t]he Eighth Circuit . . . explicitly rejected Plaintiffs’ contention that due process requires the availability of less restrictive facilities.” (Doc. No. 1097 at 6.) As with Plaintiffs’ failure-to-provide-treatment claim, the Eighth Circuit’s Karsjens decision forecloses finding Defendants’ liable under Count VI. The Eighth Circuit’s statements regarding the lack of a fundamental right to treatment and the lack of a fundamental liberty interest in freedom from physical restraint strongly imply that civilly committed individuals do not retain a fundamental liberty interest in the least restrictive confinement appropriate for their risk level. What is more, the Eighth Circuit specifically acknowledged this Court’s findings that “individuals have remained confined at the MSOP even though they have completed treatment or sufficiently reduced their risk” and that “there are insufficient less restrictive alternatives available for transfer and
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no less restrictive alternatives available for initial commitment.” Karsjens, 845 F.3d at 402-03. It nevertheless held that “[n]one of the . . . 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.” Id. at 410. The Court is therefore bound by the Eighth Circuit’s decision to conclude that Defendants are not liable under the Fourteenth Amendment for failing to provide less restrictive alternatives to the Plaintiff Class.
3. Punitive Nature of Confinement Claims (Counts V, VII) Counts V and VII challenge the punitive nature of confinement at the MSOP based on the asserted rights under the Fourteenth Amendment to be free from punishment and inhumane treatment. With respect to these claims, Plaintiffs argue “that commitment to the MSOP continues in duration beyond a time that it is constitutionally permissible.” (Doc. No. 1100 at 12.) Plaintiffs emphasize that “Defendants do not even know whether hundreds of Plaintiffs and Class members continue to meet the constitutional criteria for commitment,” and highlight the barriers the MSOP has imposed in the reduction-incustody process. (Id.) On the merits of Counts V and VII, Defendants argue that Plaintiffs’ theory challenging the punitive nature of the MSOP fails under the Fourteenth Amendment and the Eighth Circuit’s application of the shocks-the-conscience standard. The Court concludes that the Eighth Circuit’s holdings and reasoning preclude finding a substantive due process violation under Counts V and VII. Notwithstanding this Court’s finding holding that the MCTA “results in a punitive effect and application contrary to the purpose of civil commitment,” the Eighth Circuit reversed the Court’s
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finding of liability under the Fourteenth Amendment. Karsjens, 845 F.3d at 402. Ultimately, the Eighth Circuit reviewed the Phase One record and determined 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.” Id. at 410-11. In light of these conclusions and the applicable standard for imposing substantive due process liability, the Court concludes that Defendants are not liable under Counts V and VII.
4. Plaintiffs’ Unconstitutionally Punitive Theory Alternatively, Plaintiffs contend that they should prevail on their remaining Phase One claims because Defendants are unconstitutionally punishing civilly committed individuals. Plaintiffs assert that “[w]hether commitment to the MSOP is punitive, as alleged in each of these claims, has not yet been determined by the Court,” and that the Eighth Circuit has not identified the proper standard by which to analyze such allegations. (Doc. No. 1100 at 5.) According to Plaintiffs, the trial record supports a finding that “Plaintiffs’ commitment to the MSOP under the Act is punitive in effect” based on the treatment, living conditions, and discharge process, “the consequence of which is effectively life-long punitive detention.” (Id. at 16.) Plaintiffs also point to the lack of periodic risk assessments conducted at the MSOP and argue that “[h]olding Plaintiffs and Class members beyond such a time as they meet commitment standards, as well as not even knowing whether people should continue to be confined, is certainly not rationally related to a nonpunitive purpose, the rendering the Act punitive in effect.” (Id.
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at 21.) In short, Plaintiffs argue that the record supports a finding that the MCTA is punitive and therefore unconstitutional under Counts III, V, VI, and VII.
In response, Defendants contend that Plaintiffs are merely repeating arguments that have been rejected by the Eighth Circuit. In particular, Defendants note that “the Eighth Circuit considered and rejected Plaintiffs’ theory that the MSOP ‘results in a punitive effect and application contrary to the purpose of civil commitment’ in violation of substantive due process.” (Doc. No. 1102 at 5 n.7 (quoting Karsjens, 845 F.3d at 402).) In any event, Defendants contend that Plaintiffs’ alternative punitiveness theory under Bell v. Wolfish, 441 U.S. 520 (1979), and Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), is meritless and should be rejected because it was not advanced during the Phase One trial. Defendants ultimately assert that it is irrelevant whether the remaining Phase One claims are analyzed under a theory of deliberate indifference or general punitiveness; in any case, Defendants argue, the shocks-the-conscience standard controls.
Even under this alternative theory of liability, the Court once again concludes that the Eighth Circuit’s holdings are dispositive of Plaintiffs’ remaining Phase One claims. Regardless of the theory of liability alleged, Plaintiffs’ Fourteenth Amendment substantive due process claims are analyzed under the two-part test identified by the Eighth Circuit in its Karsjens opinion. Furthermore, the Eighth Circuit has explicitly held that Defendants’ actions, as revealed in Phase One of trial, do not rise to the conscience-shocking level necessary to support Fourteenth Amendment substantive due process liability. Even if this Court were free to conclude that the MSOP and Defendants’ implementation of the MCTA amount to punishment of individuals who are
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subject to civil commitment, the Eighth Circuit’s decision compels the conclusion that Defendants have not engaged in conscience-shocking conduct to support the imposition of liability under the Fourteenth Amendment.8
For the reasons stated above, in light of the Eighth Circuit’s decision, the Court finds that Defendants are not liable under Plaintiffs’ remaining Phase One claims. Thus, Counts III, V, VI, and VII shall be dismissed with prejudice. The Court next turns to Phase Two and Defendants’ renewed Motion for Summary Judgment on Counts VII, IX, and X. II. Decertification of Plaintiffs’ Phase Two Class Claims
Plaintiffs’ Phase Two claims raise constitutional challenges to Defendants’ implementation of various policies at the MSOP. (See Third Am. Compl. ¶¶ 298-325.) Specifically, Count VIII alleges a First Amendment religious freedom claim. (Id. ¶¶ 298-306.) Count IX alleges unreasonable restrictions on Plaintiffs’ First Amendment freedom of speech and association rights. (Id. ¶¶ 307-15.) Count X asserts that Defendants have conducted unreasonable searches and seizures in violation of the Fourth Amendment. (Id. ¶¶ 316-25.) With respect to Counts VIII and IX, Plaintiffs allege that the challenged “policies, procedures and practices are not related to a legitimate institutional or therapeutic interest of the Defendants.” (Id. ¶¶ 303, 312.) Concerning Count X, Plaintiffs contend that Defendants’ “search policies, procedures and practices unnecessarily invade the personal rights of Plaintiffs and Class members.” (Id. ¶ 322.) 8 Significantly, the Court’s conclusion on the viability of this theory in this case is not meant to foreclose committed individuals from advancing this theory in separate litigation.
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In briefing their renewed Motion for Summary Judgment with respect to Plaintiffs’ Phase Two claims, Defendants asserted in footnotes that Plaintiffs’ alleged injuries were subject to individualized inquiry and “not capable of classwide resolution.” (Doc. No. 1102 at 13 n.13, 15 n.14.) Despite neither party formally requesting decertification of the Class with respect to Phase Two, Plaintiffs stated at oral argument that these claims should be decertified. The Court requested letter briefs from the parties on this issue, and each party filed a supplemental response.
Defendants contend that “[t]he Court should enter judgment on the merits in favor of Defendants on Plaintiffs’ Phase Two claims.” (Doc. No. 1105 at 1.) Defendants emphasize that there are no new circumstances to support Plaintiffs’ belated change in position and new litigation strategy. “After six years of litigation,” Defendants contend, “Plaintiffs should not be permitted to avoid a determination of the claims on the merits, and the Court should grant Defendants summary judgment.” (Id. at 2.) At a minimum, Defendants ask the Court to grant summary judgment with respect to the class representatives’ individual claims.
Plaintiffs state that the Court should render a decision with respect to Plaintiffs’ Phase Two claims based on the parties’ arguments and the evidentiary record. Plaintiffs also contend, however, that “[t]he Court has the discretion, and the obligation, to decertify a class where class treatment is no longer appropriate, even where the initial certification has not been challenged.” (Doc. No. 1106 at 1.) According to Plaintiffs, “[a]s this case has progressed through discovery, trial, and appeals, it has become apparent that class treatment is not appropriate for the Phase Two claims” because
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Defendants’ conduct in applying various MSOP policies “[does not] apply generally to the class.” (Id. at 2 (quoting Fed. R. Civ. P. 23(b)(2)).) In Plaintiff’s view, “the Court has a duty to decertify the Class for the Phase two claims and allow Plaintiffs and Class member[s] to pursue any claims they may have on an individual basis.” (Id.)
Once a class is certified pursuant to Federal Rule of Civil Procedure 23, the court retains a continuing duty to assure the propriety of certification. See Hervey v. City of Little Rock, 787 F.2d 1223, 1227 (8th Cir. 1986). In addition, “[a]n order that grants or denies class certification may be altered or amended before final judgment.” Fed. R. Civ. P. 23(c)(1)(C). A decision to decertify a class should arise based on changed circumstances that were not present when the class was certified. See William B. Rubenstein, Newberg on Class Actions § 7:34 (5th ed. 2018 Update). And whether to decertify a class is within the district court’s discretion. See Webb v. Exxon Mobil Corp., 856 F.3d 1150, 1157 (8th Cir. 2017).
The Court certified the Plaintiff Class on July 24, 2012, pursuant to Federal Rule of Civil Procedure 23(b)(2), concluding “that Defendants’ alleged acts and omissions regarding the Plaintiffs’ claims constitute actions generally applicable to the Class.” (Doc. No. 203 at 11.) Among others, the Court identified the following common questions of law or fact applicable to the Class:
“Whether Defendants violated Plaintiffs’ and Class members’ rights to be free from unreasonable searches and seizures as protected by the Fourth Amendment to the United States Constitution; [and] . . . “Whether Defendants violated Plaintiffs’ and Class members’ rights to freedom of expression, speech, and religious exercise as protected by the First Amendment to the United States Constitution[.]”
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(Id. at 6-7.) The Court also concluded that “resolution of the Plaintiffs’ claims will necessarily remedy the injuries suffered by all potential Class members.” (Id. at 7.) Finally, the Court emphasized the shared interests between the named plaintiffs and the proposed class, noting that “they share the common goal of being housed in a humane, therapeutic environment while receiving adequate treatment that gives them a realistic opportunity for release.” (Id. at 10.)
As Plaintiffs noted in their brief in response to Defendants’ renewed Motion for Summary Judgment, Counts VIII, IX, and X “all claim that the policies and practices at the MSOP are punitive.” (Doc. No. 1100 at 24.) Plaintiffs acknowledge that “[c]laims regarding the application of specific policies to a particular Plaintiff or Class member are not appropriate for class treatment” if such claims arise from conduct that is not generally applicable to the class. (Id. at 25.) Plaintiffs’ theory concerning these claims, however, is “that when viewed collectively, these policies are clear violations of Plaintiffs’ and Class members’ constitutional rights.” (Id.) Plaintiffs argue, “it is these policies and practices in combination and when applied to the Class as a whole, that rise to the level of a constitutional violation, along with the fact that they are applied uniformly to all Plaintiffs without regard for individual treatment needs or risk levels.” (Id.)
The Court declines to decertify the Class in this matter because the common questions and shared interests identified in the Court’s order granting class certification remain with respect to the MSOP’s generally-applicable policies and practices. To be sure, individuals residing at the MSOP may have viable individual claims regarding the
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application of specific policies to them as individuals. However, this fact does not foreclose the Court from considering Plaintiffs’ claims on a classwide basis to the extent the policies affect the Class as a whole. Thus, the Court shall consider Plaintiffs’ classwide claims on their merits to the extent they allege systemic challenges to the punitive nature of confinement at the MSOP arising under the First and Fourth Amendments. III. Defendants’ Motion for Summary Judgment on Phase Two Claims
Defendants argue that the Eighth Circuit’s decision eliminates the rationale on which the Court previously denied summary judgment on Plaintiffs’ remaining Phase Two claims. Specifically, Defendants emphasize that “the Court based its denial of Defendants’ previous summary judgment on Counts VIII, IX, and X on the proposition that they might have merit in combination with Plaintiffs’ Phase One substantive due process claims regarding the conditions of their confinement.” (Doc. No. 1097 at 23.) Defendants dispute this rationale and further contend that, in any case, it is “disposed of by the Eighth Circuit’s opinion.”9 (Id.) Defendants point to recent caselaw decided since the Court’s prior summary judgment decision that supports granting summary judgment to Defendants on Plaintiffs’ Phase Two claims. Finally, Defendants assert that “Plaintiffs continue to cite no authority for the proposition that constitutional policies somehow become unconstitutional in combination with one another.”10 (Doc. No. 1102 at 10.)
9 Defendants further note that “even Plaintiffs previously agreed that the disposition of Phase One would affect Phase Two.” (Doc. No. 1102 at 10.) 10 Defendants also argue that Counts IX and X must be dismissed to the extent they
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Contrary to Defendants’ view, Plaintiffs argue that “[t]he Eighth Circuit’s opinion . . . has no bearing on the analysis of these claims.” (Doc. No. 1100 at 25 n.12.) Plaintiffs explain that their First, Fourth, and Fourteenth Amendment claims in Counts VIII, IX, and X all arise from the contention “that the policies and practices at MSOP are punitive.” (Id. at 24.) According to Plaintiffs, although “[e]ach of these claims involves a number of policies and practices that, when viewed individually, may not rise to the level of a constitutional violation,” if the Court considers the policies “collectively,” they amount to “clear violations of Plaintiffs’ and class members’ constitutional rights.” (Id. at 24-25.) In short, Plaintiffs contend that the MSOP “operates as a punitive detention center rather than a treatment facility,” supporting a finding of unconstitutionality.11 (Id. at 26.)
A. Legal Standard Summary judgment is appropriate if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Courts must view the evidence and all reasonable inferences in the light most favorable to the nonmoving party. Weitz Co., LLC v. Lloyd’s of London, 574 F.3d 885, 892 (8th Cir. 2009). However, “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the
arise under the Minnesota Constitution. As noted above, Plaintiffs do not dispute that such claims are subject to dismissal, and the Court shall grant dismissal on this basis. 11 Plaintiffs contend that Defendants should be precluded from relitigating summary judgment on the Phase Two Counts. However, the Court and the parties agreed that Defendants would be permitted to bring a renewed motion for summary judgment.
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Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enter. Bank v. Magna Bank of Mo., 92 F.3d 743, 747 (8th Cir. 1996). The nonmoving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). “[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
B. Impact of Phase One on Plaintiffs’ Phase Two Claims On February 2, 2015, the Court denied Defendants’ initial Motion for Summary judgment with respect to Counts VIII, IX, and X. (Doc. No. 828 at 32-39.) The Court also denied summary judgment on the Phase One claims that proceeded to trial. (Id. at 16-32.) The Court stated that “[a]t the heart of Plaintiffs’ Third Amended Complaint 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.” (Id. at 24.) The Court concluded that “[t]he record before the Court indicates that Plaintiffs have presented sufficient evidence to allow a reasonable factfinder to conclude that the civil commitment system is unconstitutionally punitive in nature.” (Id. at 31.)
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In analyzing Plaintiffs’ Phase Two claims, the Court indicated that Plaintiffs’ allegations as a whole influenced the Court’s conclusions, particularly with respect to Counts IX and X. Specifically, concerning Count IX, the Court stated, “considering Plaintiffs’ claims with respect to restrictions on their ability to freely associate and speak and in light of all of Plaintiffs’ allegations regarding their conditions of confinement, the Court finds that Plaintiffs have presented sufficient evidence to support a claim that survives summary judgment.” (Id. at 36.) Similarly, with respect to Count X, the Court held that “[c]onsidering Plaintiffs’ Fourth Amendment claim in conjunction with other evidence presented by Plaintiffs surrounding the punitive nature of their confinement, the Court determines that a genuine issue of material fact exists as to whether the search policies in this case are reasonable and appropriate.” (Id. at 39.)
Although the Eighth Circuit’s opinion did not address Plaintiffs’ Phase Two claims, its conclusions regarding Counts I and II minimized the constitutional significance of Plaintiffs’ overall allegations regarding the punitive nature of confinement at the MSOP. The Eighth Circuit noted the Court’s holding “that Minnesota’s civil commitment scheme for sex offenders is a punitive system without the safeguards found in the criminal justice system.” Karsjens, 845 F.3d at 402. It also considered the Court’s determination that MCTA “results in a punitive effect and application contrary to the purpose of civil commitment.” Id. Without implying that these findings were in error, the Eighth Circuit nonetheless “reverse[d] the district court’s finding of a constitutional violation” in Phase One. Id. The Court concludes that its analysis of Plaintiffs’ Phase Two claims at this stage must be considered in light of the Eighth Circuit’s decision.
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Furthermore, as Defendants have pointed out, the Phase One trial testimony of all four Rule 706 Experts provides additional record evidence relevant to Plaintiffs’ Phase Two claims. Rule 706 Expert Deborah McCulloch agreed that neither the MSOP’s mail policy nor search policies were “outside the bounds of what you would expect at a highly secure sex offender treatment center.” (Doc. No. 936 (“Tr. Vol. I”) at 147-48.) She testified that the MSOP’s policies were developed with attention to the need to balance security and treatment at the facility. (See Doc. No. 937 (“Tr. Vol. II”) at 304-05.) Based on her review of the MSOP’s policies concerning searches, client transportation, spiritual practices, media, mail, client movement, yard use, visitation, and client property, McCulloch did not identify any particular problems. (Id. at 306-11, 321, 323-25.)
Dr. Naomi Freeman, another Rule 706 Expert, testified that she deferred to McCulloch’s expertise concerning facility policies, but that she had no concerns with the MSOP policies she had reviewed as written. (Doc. No. 939 (“Tr. Vol. IV”) at 876.) She also explained that her own state’s civil commitment program subjects clients to room searches, monitoring of mail, and restraints during transportation. (Id. at 877.) Freeman agreed that “the policies [she] reviewed are within acceptable standards.” (Id. at 878.) Dr. Robin Wilson and Dr. Michael Miner largely deferred to McCulloch and Freeman’s expertise and opinions regarding the MSOP’s policies. (Doc. No. 938 (“Tr. Vol. III”) at 626-28; Doc. No. 941 (“Tr. Vol. VI”) at 1128.) Both of these experts generally agreed that the MSOP administrators created the policies through the exercise of professional judgment. (See Tr. Vol. III at 628; Tr. Vol. VI at 1173.)
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The Court shall consider Defendants’ renewed Motion for Summary Judgment on Plaintiffs’ Phase Two claims in light of the Eighth Circuit’s Karsjens opinion, the Court’s conclusions above regarding Plaintiffs’ remaining Phase One claims, and the Rule 706 Expert testimony elicited during Phase One of trial.
C. First and Fourteenth Amendment Religious Freedom (Count VIII) In order to succeed on a claim under the Free Exercise Clause of the First Amendment, Plaintiffs must establish that Defendants’ challenged policies and practices place a “substantial burden” on Plaintiffs’ ability to practice their religion. See Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008); see also Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997) (“[A] person claiming that a governmental policy or action violates his right to exercise his religion freely must establish that the action substantially burdens his sincerely held religious belief.”). To find a substantial burden, the court must determine that the challenged practices: (1) “significantly inhibit or constrain conduct or expression that manifests some central tenet of a person’s individual religious beliefs”; (2) “meaningfully curtail a person’s ability to express adherence to his or her faith”; or (3) “deny a person reasonable opportunities to engage in those activities that are fundamental to a person’s religion.” Patel, 515 F.3d at 813 (citation omitted). A policy which requires an individual to choose between “adhering to their religious beliefs or facing serious disciplinary action” constitutes a substantial burden. Mueller v. Mesojedec, Civ. No. 16- 277, 2017 WL 764866, at *5 (D. Minn. Jan. 6, 2017), report and recommendation adopted, Civ. No. 16- 277, 2017 WL 758929 (D. Minn. Feb. 27, 2017). However, the alleged burden must be “more than an inconvenience.” See id.
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Where an institutional policy infringes a civilly committed individual’s constitutional rights, courts in this District have applied a modified version of the Supreme Court’s four-part test outlined in Turner v. Safley, 482 U.S. 48 (1987), to determine whether the restriction is valid. See Ivey v. Mooney, Civ. No. 05-2666, 2008 WL 4527792, at *4 (D. Minn. Sept. 30, 2008); Stone v. Jesson, Civ. No. 11 -0951, 2017 WL 1050393, at *3 (D. Minn. Mar. 17, 2017). According to Turner, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Ivey, 2208 WL 4527792, at *4 (quoting Turner, 482 U.S. at 89). Because Turner arose in the context of prisoner litigation, the modified version of this test applicable to civilly committed individuals considers “whether [the policy or regulation] is reasonably related to legitimate institutional and therapeutic interests.” See id. at *5, *10. The Turner standard requires courts to consider the following four factors:
(1) whether there is a valid rational connection between the regulation and the legitimate government interest it purports to further; (2) whether the inmate has an alternative means of exercising his constitutional right; (3) the impact that accommodation of the inmate’s right would have upon others, including inmates as well as non-inmates; and (4) the absence of a ready alternative to the regulation. Id. (quoting Ortiz v. Fort Dodge Corr. Facility, 368 F.3d 1024, 1026 (8th Cir. 2004)). The burden rests with the plaintiff “to prove that a restriction is not reasonably related to the legitimate interest it purports to further.” Stone, 2017 WL 1050393, at *3. Defendants contend that they are entitled to summary judgment on Plaintiffs’ First Amendment free exercise claim because “the record contains no evidence of a substantial burden on any client’s religious practice” or that the MSOP’s policies have “caused a
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widespread substantial burden on clients’ religious practice, as required to demonstrate class liability.” (Doc. No. 1097 at 26.) Further, Defendants argue that the evidence establishes “that MSOP’s policies are crafted in order to balance the rights of clients with therapeutic and security interests,” and assert that Plaintiffs have failed to establish that the MSOP’s policies are not related to a legitimate therapeutic or institutional interest. (Id. at 27.) Defendants also assert that they are entitled to summary judgment on this claim to the extent it is based on the Fourteenth Amendment because Plaintiffs may not simultaneously assert a Fourteenth Amendment claim based on conduct that is alleged to violate the First Amendment, and even if they could, the record lacks evidence that Plaintiffs’ fundamental rights have been violated by conduct that shocks that conscience.
Plaintiffs contend that the record establishes that the MSOP’s policies and practices relating to religion impose a substantial burden on Plaintiffs’ practice of religion. Plaintiffs point to a number of examples, including restrictions on room usage for religious meetings, clothing and jewelry restrictions, restrictions on religious articles, and restrictive policies governing meetings with clergy. Plaintiffs assert that they may face disciplinary measures that could impact treatment progress if they fail to follow the MSOP’s restrictive policies regarding religious practices. According to Plaintiffs, “[t]hese policies and practices substantially burden Plaintiffs’ ability to engage in their sincerely held religious beliefs and are not related to legitimate facility safety concerns or therapeutic interests.” (Doc. No. 1100 at 30.) Plaintiffs also argue that they may assert a Fourteenth Amendment claim in the alternative based on the conscience-shocking use of disciplinary measures against individuals who seek to exercise their religious beliefs.
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The Court concludes that Defendants are entitled to summary judgment on
Count VIII. Even if Plaintiffs could establish that Defendants’ policies respecting
religion impose a substantial burden on Class members’ religious practices, Plaintiffs
have failed to identify record evidence by which a jury could conclude that the MSOP’s
policies applied to the Class as a whole are not reasonably related to legitimate
therapeutic and institutional interests. The Court shall thus grant Defendants’ Motion for
Summary Judgment on Count VIII.12
D. First Amendment Freedom of Speech and Association (Count IX)
The First Amendment’s freedom-of-speech protections include “the right to utter
or to print, . . . the right to distribute, the right to receive, the right to read,” and the
freedom to exercise inquiry and thought. Griswold v. Connecticut, 381 U.S. 479, 482
(1965). The related First Amendment right of association includes “more than the right
to attend a meeting; it includes the right to express one’s attitudes or philosophies by
membership in a group or by affiliation with it or by other lawful means.” See id. at 483.
12 To the extent Plaintiffs’ free-exercise claim in Count VIII arises under the Fourteenth Amendment, the Court concludes it is subject to dismissal. The Supreme Court has held that “where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (citation omitted). This holding disposes of Plaintiffs’ religion-based claim to the extent it alleges a burden on religion covered by the First Amendment. Even if the Court were to conclude that any part of this claim separately states a substantive due process violation under the Fourteenth Amendment, the Court further finds that Plaintiffs have failed to raise a genuine issue of material fact as to whether any of Defendants’ conduct with respect to religious practices is truly conscience-shocking to support liability.
Importantly, the Court’s conclusions on the viability of Plaintiffs’ classwide religion-based claims in this case are not meant to foreclose committed individuals at the MSOP from advancing individual religion-based claims in separate litigation.
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Although civilly committed individuals retain these First Amendment protections, “[a]ny form of involuntary confinement, whether incarceration or involuntary commitment, may necessitate restrictions on the right to free speech.” Beaulieu v. Ludeman, 690 F.3d 1017, 1038-39 (8th Cir. 2012) (emphasis and citation omitted).
The same modified Turner analysis outlined above applies to claims that certain institutional policies inhibit committed individuals’ First Amendment freedom-of-speech and association rights. See Banks v. Jesson, Civ. No. 11- 1706, 2016 WL 3566207, at *3 (D. Minn. June 27, 2016); Williams v. Johnston, Civ. No. 14-369, 2015 WL 1333991, at *7 (D. Minn. Jan. 28, 2015), report and recommendation adopted, Civ. No. 14-369, 2015 WL 1334015 (D. Minn. Mar. 25, 2015). The MSOP’s media policy restricting access to certain objectionable content has been deemed constitutional within this District. See Banks, 2016 WL 3566207, at *8 (“MSOP is constitutionally allowed to implement and enforce a policy which prohibits detainees from possessing items depicting nudity and visible genitals.”). Similarly, an MSOP mail policy permitting the inspection of mail and an MSOP telephone policy imposing charges for calls and permitting monitoring have survived First Amendment scrutiny under Turner. Semler v. Ludeman, Civ. No. 09-0732, 2010 WL 145275, at *11, *15-16 (D. Minn. Jan. 8, 2010).
Defendants argue that the MSOP’s policies challenged in Count IX should be upheld consistent with governing Eighth Circuit precedent and multiple cases out of this District. Specifically, Defendants point to caselaw which has upheld the MSOP’s mail policy, phone policy, media policy, and vendor policy against First Amendment challenge. Contrary to Plaintiffs’ position, Defendants argue, “there is no legal authority
33

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for [the Plaintiffs’] belief that the conglomeration of a number of constitutional policies can result in something unconstitutional.” (Doc. No. 1102 at 13.)
Plaintiffs contend that the MSOP’s policies infringe their speech and association rights under the First Amendment. According to Plaintiffs, “[w]hen all of the MSOP’s policies and practices affecting Plaintiffs’ freedom of speech and association are considered together, it is clear that the MSOP does not limit its restrictions to those that are necessary for therapeutic or security reasons.” (Doc. No. 1100 at 31.) In particular, Plaintiffs point to the MSOP’s mail policy, visitation policy, media policy, and phone policy. Plaintiffs dispute Defendants’ safety and security justification for such policies, arguing that Defendants offer only conclusory assertions.
As with Count VIII, above, the Court concludes that summary judgment is warranted on Plaintiffs’ First Amendment claims in Count IX. In particular, the Phase One trial testimony of the Rule 706 Experts as well as caselaw evaluating the MSOP policies informs this Court’s conclusions with respect to the policies challenged under this claim. Plaintiffs have failed to raise a genuine dispute over whether Defendants’ policies implicating speech and association are an unreasonable restriction on Plaintiffs’ First Amendment rights as applied to the Class as a whole. The Court therefore grants summary judgment to Defendants’ on Count IX.13
13 Notably, the Court’s conclusions on the viability of Plaintiffs’ freedom-of-speech and association claims in this case are not meant to foreclose committed individuals at the MSOP from advancing individual freedom-of-speech and association claims in separate litigation.
34

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E. Fourth Amendment Search and Seizure (Count X) The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “[I]nvoluntarily civilly committed persons retain the Fourth Amendment right to be free from unreasonable searches that is analogous to the right retained by pretrial detainees.” Arnzen v. Palmer, 713 F.3d 369, 372 (8th Cir. 2013) (quoting Beaulieu, 690 F.3d at 1028). To determine “reasonableness” in an institutional setting, a court must balance “the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 558-59 (1979). In applying this balancing test, courts are to consider: (1) the scope of the intrusion; (2) the manner in which the search is conducted; (3) the justification for the search; and (4) the location where the search is conducted. See id. at 559; Serna v. Goodno, 567 F.3d 944, 949 (8th Cir. 2009) (applying the Bell balancing test to evaluate the reasonableness of a search at the MSOP). The degree of suspicion is a relevant component within this balancing test, but it should not override the other identified factors. See Serna, 567 F.3d at 950-51. A court is obligated to defer to the judgment of institutional officials “unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of institutional security.” Arnzen, 713 F.3d at 373 (quoting Beaulieu, 690 F.3d at 1029). Furthermore, in evaluating search policies at the MSOP, the Eighth Circuit has rejected the need to “strictly apply a ‘less intrusive means’ test.” Beaulieu, 690 F.3d at 1029; see also Serna, 567 F.3d at 955.
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A number of courts have previously addressed the constitutionality of various MSOP policies under the Fourth Amendment. “[R]andom room searches at MSOP” have repeatedly survived Fourth Amendment scrutiny. See Housman v. Jesson, Civ. No. 15- 2209, 2016 WL 7231600, at *3 (D. Minn. Dec. 14, 2016); see also Daniels v. Jesson, Civ. No. 13-736, 2014 WL 3629874, at *6 (D. Minn. July 22, 2014). A court in this District has also held post-work pat searches at the MSOP to be constitutional. See Semler, 2010 WL 145275, at *19. In Beaulieu, the Eighth Circuit upheld the MSOP’s unclothed visual body search policy under the facts of that case. See Beaulieu, 690 F.3d at 1030. Evaluating the constitutionality of such searches, however, is a fact-dependent inquiry. See Allan v. Ludeman, Civ. No. 10-176, 2011 WL 978768, at *4 (D. Minn. Jan. 18, 2011), report and recommendation adopted, Civ. No. 10-176, 2011 WL 978658 (D. Minn. Mar. 17, 2011) (“[S]trip searches conducted at MSOP facilities may or may not be reasonable, and thus may or may not be constitutional, depending on the circumstances.”). The same is true of the use of shackles and restraints. See id. at *6.
With respect to Plaintiffs’ Fourth Amendment claims, Defendants emphasize that the Eighth Circuit has previously evaluated the MSOP search policies and acknowledged the need to maintain safety and security at the MSOP. Defendants also point to expert testimony which supports the validity and reasonableness of the MSOP’s search policies. According to Defendants, the MSOP’s room search policy, pat-search policy, unclothed visual body search policy, and restraint policy have all survived constitutional challenges in prior cases. Defendants argue that “Plaintiffs failed to provide anything more than
36

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mere allegations regarding their search and seizure claim, which is insufficient to survive summary judgment.” (Doc. No. 1102 at 15.)
Plaintiffs contend that “[i]t is clear that the MSOP’s strip-search policy is not therapeutic.” (Doc. No. 1100 at 33.) According to Plaintiffs, these unclothed visual body searches are not conducted based on any consideration of individual risk. Plaintiffs also allege that the MSOP’s pat-search and restraint policies similarly fail to account for individualized suspicion or risk level. In addition, Plaintiffs challenge the MSOP’s room-search policies. Plaintiffs argue that the caselaw identified by Defendants failed to consider “whether the policies were appropriately applied to all MSOP patients or whether application on an individual basis would be less restrictive.” (Id. at 35.) “Considering all of the MSOP’s search policies together,” Plaintiffs contend, “it is apparent that Defendants do not take less intrusive measures into consideration, nor are all of these policies necessary for the safety of the facility.” (Id.)
The Court determines that Defendants are entitled to summary judgment on Plaintiffs’ classwide challenge to the MSOP’s policies implicating the Fourth Amendment. The record lacks “substantial evidence showing [that the MSOP’s] policies are an unnecessary or unjustified response to problems of institutional security,” and the Court is thus bound to defer to Defendants’ institutional judgment regarding the need for particular search policies. See Arnzen, 713 F.3d at 373 (quoting Beaulieu, 690 F.3d at 1029). Furthermore, caselaw has consistently affirmed the constitutionality of various search policies at the MSOP, and the Rule 706 Expert testimony suggests that the policies are reasonable for a sex offender civil commitment facility. The Court concludes that the
37

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record fails to support Plaintiffs’ classwide challenge alleging that the punitive nature of the MSOP renders its search and seizure policies unconstitutional under the Fourth Amendment. Therefore, the Court grants summary judgment to Defendants on Count X.14 IV. Defendants’ Motion For Final Apportionment of Rule 706 Expert Costs
Finally, Defendants ask the Court to make a final determination on the apportionment of costs for the Rule 706 Experts in this matter. The Court appointed the Rule 706 Experts to aid the Court in its resolution of this complex litigation. (See Doc. No. 354 at 4 (“To the extent Plaintiffs seek the appointment of expert witnesses for the benefit of the Court Pursuant to Rule 706, the motion is GRANTED.”).) In its Order appointing the Rule 706 Experts, the Court stated that “Pursuant to Rule 706(c), the compensation shall be charged as costs in this litigation.” (Doc. No. 393 at 5.) The Court thereafter ordered that “[w]ithout prejudice to subsequent adjustment, [the Rule 706 Expert] costs shall be initially allocated to Defendants.” (Doc. No. 427 at 75.)
Experts appointed by the court pursuant to Federal Rule of Evidence 706 are “entitled to a reasonable compensation as set by the court.” Fed. R. Evid. 706(c). Such compensation shall be paid “by the parties in the proportion and at the time that the court directs—and the compensation is then charged like other costs.” Fed. R. Evid. 706(c)(2); see also U.S. Marshals Serv. v. Means, 724 F.2d 642, 648 (8th Cir. 1983), on reh’g, 741 F.2d 1053 (8th Cir. 1984). Pursuant to Federal Rule of Civil Procedure 54(d), “costs 14 Significantly, the Court’s conclusions on the viability of Plaintiffs’ search and seizure claims in this case are not meant to foreclose committed individuals at the MSOP from advancing individual search and seizure claims in separate litigation.
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. . . should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d). Such costs may be taxed by the clerk and are then subject to the court’s review upon motion. See Fed. R. Civ. P. 54(d)(1). “Under Rule 54(d), allocation of costs is within the sound discretion of the trial court.” Cross v. Gen. Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983).
Defendants argue that the Court should order Plaintiffs to pay for the Rule 706 Expert costs. According to Defendants, “[h]aving both asked for the appointment of the Rule 706 Experts and lost on appeal, Plaintiffs cannot plausibly argue that Defendants should have to pay the Rule 706 Experts.” (Doc. No. 1097 at 12.) In addition, Defendants emphasize that the Plaintiffs’ indigent status does not preclude the Court from apportioning the cost of expert compensation to them. To support their request, Defendants point to Federal Rule of Civil Procedure 54(d)(1) under which a prevailing party may recover its costs in litigation. In short, Defendants argue, “Plaintiffs[] lost and should have to pay for the experts they wanted.” (Doc. No. 1102 at 8.)
Plaintiffs dispute Defendants’ characterization that the Court appointed the Rule 706 Experts for their benefit, noting that the Rule 706 Experts’ work was developed based on input from both parties. Plaintiffs also emphasize “that Defendants have relied on, and continue to rely on, the Rule 706 Experts’ findings and testimony.” (Doc. No. 1100 at 23.) Finally, Plaintiffs point out that they are indigent and argue that the Court may appropriately apportion the Rule 706 Expert costs to Defendants on this basis.
The Court concludes that an order apportioning the costs of the Rule 706 Experts to Plaintiffs would be premature at this stage. The Court reserves the right to revisit the
39

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issue of apportioning these costs pursuant to Rule 54 following the entry of final judgment and upon complete briefing by the parties.
CONCLUSION The Court’s determinations, above, resolve Plaintiffs’ remaining Phase One and Phase Two claims. After many years of vigorous advocacy on all sides, the Karsjens litigation has effectively reached its end. With respect to Plaintiffs’ remaining Phase One claims, the Court’s conclusions are largely dictated by the Eighth Circuit’s decision reversing this Court’s finding of a constitutional violation under the Fourteenth Amendment. In light of the applicable substantive due process standard outlined in the Eighth Circuit’s opinion and its broad holding 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,” Karsjens, 845 F.3d at 410-11, the Court determines that Defendants are not liable for the remaining counts in Phase One. Concerning Defendants’ Phase Two claims challenging the conditions of confinement at the MSOP under the First and Fourth Amendments on a classwide basis, the Court concludes that there is no genuine issue of material fact in dispute and Defendants are entitled to judgment as a matter of law. With respect to Phase Two, the Court emphasizes that its conclusions solely address Plaintiffs’ classwide claims of systemic constitutional violations. To the extent individual class members residing at the MSOP seek to raise individual claims based on alleged violations of their constitutional rights, it is this Court’s view that such claims are
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not foreclosed by the Court’s determinations relating to Counts VIII, IX, and X of Plaintiffs’ Third Amended Complaint. This suggestion applies, for example, to individual claims that the MSOP’s application of particular policies has infringed a committed individual’s right to freely exercise his religion, to exercise protected speech rights, to freely associate with individuals both within and outside of the MSOP, and to be free from an unreasonable search.
A number of lawsuits filed by civilly committed individuals at the MSOP are currently stayed pending the resolution of this case. (See Doc. Nos. 1080, 1083.) As noted above, it is this Court’s view that its conclusions regarding Plaintiffs’ classwide claims will leave any individual claims in these and future lawsuits unresolved. The prospect of these many individual lawsuits going forward may be a compelling reason for all parties to sit down in an attempt to reach an agreement to settle any remaining issues in this case, with or without the assistance of the Court, instead of incurring the significant costs and delay associated with pursuing an appeal. To do so might well serve the best interests of the parties, the public interest, and the interests of justice.
Finally, the Court expresses its view that some of the facts revealed during the lengthy Phase One trial in this matter are indeed shocking to this Court’s conscience. In particular, the Court finds the circumstances surrounding the confinement of Rhonda Bailey, the MSOP’s sole civilly committed female, to be truly conscience-shocking. Furthermore, the Court views the continued confinement of elderly individuals with a low likelihood of re-offense as an egregious affront to liberty, particularly in light of the pervasive sense of hopelessness at the MSOP. Similarly, the confinement of individuals
41

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with cognitive disabilities or juvenile-only offenders who could safely reside in a less

restrictive alternative facility or in the community remains of great concern to the Court.

Notwithstanding these observations and concerns, however, the Eighth Circuit’s

reversal of this Court’s liability findings in large part compels the conclusions the Court

reaches today. The Court hopes that the public and all stakeholders will carefully

consider the complex issues raised by this litigation, moving forward in a manner that

balances the interests of public safety, fundamental justice, and basic human dignity.

Justice requires no less.

ORDER

Based upon the foregoing, IT IS HEREBY ORDERED that:

1. Plaintiffs’ remaining Phase One claims (Counts III, V, VI and VII) are

DISMISSED WITH PREJUDICE.

2. Defendants’ Motion for Summary Judgment on Phase Two (Counts VIII,

IX, and X) (Doc. No. [1095]) is GRANTED and these counts are DISMISSED WITH

PREJUDICE.

3. Defendants’ Motion for Final Apportionment of Rule 706 Expert Costs

(Doc. No. [1095]) is DENIED WITHOUT PREJUDICE to renewal in connection with

a Motion for Costs pursuant to Federal Rule of Civil Procedure 54.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: August 23, 2018

s/Donovan W. Frank DONOVAN W. FRANK United States District Judge

42

 
 CASE 0:11-cv-03659-DWF-TNL Document 1118 Filed 10/24/18 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

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,

Court File No. 11-cv-03659 (DWF/TNL) NOTICE OF APPEAL

Plaintiffs,

v.

Emily Johnson Piper, Kevin Moser, Peter Puffer, Nancy Johnston, Jannine Hébert, and Ann Zimmerman, in their individual and official capacities,

Defendants.

PLEASE TAKE NOTICE that Plaintiffs 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,

and Brian K. Hausfeld, hereby appeal as to all Defendants to the United States Court of

Appeals for the Eighth Circuit from an order of the United States District Court for the

District of Minnesota entered on August 23, 2018, dismissing with prejudice Counts III,

V, VI and VII of Plaintiffs’ Third Amended Complaint and granting Defendants’ Motion

for Summary Judgment on Counts VIII, IX and X of Plaintiffs’ Third Amended

CASE 0:11-cv-03659-DWF-TNL Document 1118 Filed 10/24/18 Page 2 of 2

Complaint. ECF No. 1108. Plaintiffs’ appeal of this order is limited to the District Court’s dismissal of Counts III, V, VI and VII.

Dated: October 24, 2018

s/Daniel E. Gustafson Daniel E. Gustafson (#202241) Karla M. Gluek (#238399) David A. Goodwin (#386715) Raina C. Borrelli (#392127) Gustafson Gluek PLLC Canadian Pacific Plaza 120 South Sixth Street, Suite 2600 Minneapolis, MN 55402 Telephone: (612) 333-8844
Attorneys for Plaintiffs

2

 
 CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 1 of 25

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Kevin S. Karsjens, et al., Plaintiffs,
v. Emily Johnson Piper, et al.,
Defendants. ___________________________ Guy Greene,
Plaintiff, v. Dennis Benson, et al.,
Defendants. ___________________________ Peter Allan,
Plaintiff, v. Lucinda Jesson, et al.,
Defendants. ___________________________

Civil No. 11-3659 (DWF/TNL) FIFTH AMENDED ORDER
Civil No. 11-979 (JRT/TNL)
Civil No. 11-1611 (ADM/LIB)

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 2 of 25

Joseph Thompson, Plaintiff,
v. Cal R. Ludeman, et al.,
Defendants. ___________________________ Shawn M. Jamison,
Plaintiff, v. Cal R. Ludeman, et al.,
Defendants. ___________________________ Jacquard Larkin,
Plaintiff, v. Cal Ludeman, et al.,
Defendants. ___________________________ Wallace James Beaulieu,
Plaintiff, v. Lucinda Jesson, et al.,
Defendants. ___________________________
2

Civil No. 11-1704 (DWF/TNL) Civil No. 11-2136 (PAM/HB) Civil No. 11-2339 (PAM/LIB) Civil No. 11-2593 (DWF/HB)

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 3 of 25

Wallace James Beaulieu, Plaintiff,
v. Lucinda Jesson, et al.,
Defendants. ___________________________ Hearvy Brown,
Plaintiff, v. Cal Ludeman, et al.,
Defendants. ___________________________ Lance Wickner,
Plaintiff, v. Stephanie Danielson, et al.,
Defendants. ___________________________

Civil No. 11-2755 (DWF/HB) Civil No. 11-2859 (JRT/SER) Civil No. 11-2905 (DWF/HB)

3

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 4 of 25

Kevin Moen, Plaintiff,
v. Lucinda Jesson, et al.,
Defendants. ___________________________ Daniel Larsen,
Plaintiff, v. Dennis Benson, et al.,
Defendants. ___________________________ Stevin A. Housman,
Plaintiff, v. Cal Ludeman, et al.,
Defendants. ___________________________

Civil No. 11-2906 (ADM/SER) Civil No. 11-3025 (ADM/HB) Civil No. 11-3035 (PAM/HB)

4

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 5 of 25

Chris Krych,
Plaintiff,
v.
DHS MSOP-ML, April 6, 2011 Client Placement Committee members and Participants (John Doe’s/Jane Doe’s), et al.,
Defendants. ___________________________
William Beals,
Plaintiff,
v.
Dennis Benson, et al.,
Defendants. ___________________________
Wesley Elmer Wills,
Plaintiff,
v.
Kevin Moser, et al.,
Defendants .___________________________

Civil No. 11-3091 (JRT/TNL) Civil No. 11-3121 (PAM/SER) Civil No. 11-3429 (PAM/TNL)

5

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 6 of 25

Michael Pittman, Plaintiff,
v. Lori Swanson, et al.,
Defendants. ___________________________ Dale Lindsey,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________ Ryan J. White,
Plaintiff, v. Governor Mark Dayton, et al.,
Defendants. ___________________________ Jamaal Carey,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________
6

Civil No. 11-3658 (SRN/TNL) Civil No. 11-3674 (SRN/SER) Civil No. 11-3702 (JRT/LIB) Civil No. 11-3711 (SRN/TNL)

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 7 of 25

Eugene Christopher Banks, Plaintiff,
v. Lori Swanson, et al.,
Defendants. ___________________________ Gary P. Scott,
Plaintiff, v. Governor Mark Dayton, et al.,
Defendants. ___________________________ Charles A. Taylor, a/k/a Terrance A. Pettis,
Plaintiff, v. Lori Swanson, et al.,
Defendants. _________________________

Civil No. 11-3712 (ADM/LIB) Civil No. 11-3714 (SRN/TNL) Civil No. 11-3728 (ADM/SER)

7

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 8 of 25

Darin D. Davidson, Plaintiff,
v. Mark Dayton, et al.,
Defendants. ___________________________ Robert Scott,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________ Christopher Eckman,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________

Civil No. 11-3733 (JNE/KMM) Civil No. 11-3737 (JRT/HB) Civil No. 12-45 (SRN/HB)

8

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 9 of 25

James D. Fries, Plaintiff,
v. Governor Mark Dayton, et al.,
Defendants. ___________________________ Leslie L. Tallman,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________ Merel Evans Bishop,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________ Joseph Goodwin,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________
9

Civil No. 12-62 (PJS/KMM) Civil No. 12-131 (PAM/SER) Civil No. 12-135 (ADM/SER) Civil No. 12-180 (SRN/SER)

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 10 of 25

Eric Leon Gates, Plaintiff,
v. Lori Swanson, et al.,
Defendants. ___________________________ William McRae,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________ Chance Larsen,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________ Terrance Friend,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________
10

Civil No. 12-181 (PAM/TNL) Civil No. 12-221 (PJS/KMM) Civil No. 12-222 (PAM/TNL)
Civil No. 12-248 (PJS/SER)

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 11 of 25

Michael C. Blunt, Plaintiff,
v. Lori Swanson, et al.,
Defendants. ___________________________ Earl Stephan McMoore,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________ Robert Alex Marshall,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________

Civil No. 12-289 (JNE/HB) Civil No. 12-318 (JRT/TNL) Civil No. 12-319 (PAM/HB)

11

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 12 of 25

William Mosby, Plaintiff,
v. Lori Swanson, et al.,
Defendants. ___________________________ Joseph Allen Hajek,
Plaintiff, v. Governor Mark Dayton, et al.,
Defendants. ___________________________ Lloyd Hartleib,
Plaintiff, v. Governor Mark Dayton, et al.,
Defendants ___________________________ Darrin Edward Dotson,
Plaintiff, v. Mark Dayton, Governor, et al.,
Defendants. ___________________________
12

Civil No. 12-320 (DWF/TNL) Civil No. 12-343 (PAM/LIB) Civil No. 12-344 (ADM/KMM) Civil No. 12-345 (JRT/SER)

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 13 of 25

Larry Evans,

Civil No. 12-348 (JRT/TNL)

Plaintiff,

v.

Lori Swanson, et al.,

Defendants. ___________________________

Lloyd Robert Desjarlais,

Civil No. 12-349 (WMW/KMM)

Plaintiff,

v.

Lori Swanson, et al.,

Defendants. ___________________________

James E. Warbington,

Civil No. 12-372 (PJS/LIB)

Plaintiff, v.

Lori Swanson, et al.,

Defendants. ___________________________

Russell Norton,

Civil No. 12-440 (PAM/SER)

Plaintiff,

v.

Cal R. Ludeman, et al.,

Defendants. ___________________________

13

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 14 of 25

James Robinson Poole, Plaintiff,
v. Governor Mark Dayton, et al.,
Defendants. ___________________________ Karl Godfrey Stevens,
Plaintiff, v. Governor Mark Dayton, et al.,
Defendants. ___________________________ Anthony Green,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________

Civil No. 12-441 (PAM/LIB) Civil No. 12-495 (JNE/LIB) Civil No. 12-504 (ADM/SER)

14

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 15 of 25

Terry Ray Jackson, Plaintiff,
v. Lori Swanson, et al.,
Defendants. ___________________________ Grady Williams,
Plaintiff, v. Minnesota Sex Offender Program, et al.,
Defendants. ___________________________ Brandy Owen Lewis,
Plaintiff, v. Governor Mark Dayton, et al.,
Defendants. ___________________________ Raymond A. Parsons, Jr.,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________
15

Civil No. 12-550 (JRT/HB) Civil No. 12-578 (JNE/SER) Civil No. 12-593 (SRN/SER) Civil No. 12-646 (DWF/TNL)

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 16 of 25

Dale Allen Williams, Sr., Plaintiff,
v. Mark Dayton, Governor, et al.,
Defendants. ___________________________ Anthony Bruce Eberhardt,
Plaintiff, v. Lori Swanson, et al.,
Defendants. ___________________________ Lance Wickner,
Plaintiff, v. Governor Mark Dayton, et al.,
Defendants. ___________________________

Civil No. 12-881 (PAM/LIB) Civil No. 12-942 (JNE/HB)
Civil No. 12-1101 (DWF/HB)

16

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 17 of 25

Al Folson, Plaintiff,
v. Lori Swanson, et al.,
Defendants. ___________________________ Joshua Lawrence Johnson,
Plaintiff, v. Kevin Moser, et al.,
Defendants. ___________________________ Hollis J. Larson,
Plaintiff, v. Minnesota Sex Offender Program, et al.,
Defendants. ____________________________ E.T.,
Plaintiff, v. Lucinda Jesson,
Respondent. ___________________________
17

Civil No. 12-1137 (SRN/DTS) Civil No. 13-892 (DSD/LIB) Civil No. 13-1074 (JRT/TNL)
Civil No. 14-2002 (DWF/TNL)

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 18 of 25

R.B., Plaintiff,
v. Lucinda Jesson,
Defendant. ___________________________ Eric Michael Sorenson,
Plaintiff, v. Office of the Minnesota Attorney General, et al.,
Defendants. ___________________________ Arthur Dale Senty-Haugen, et al.,
Plaintiffs, v. Lucinda Jesson, et al.,
Defendants. ___________________________

Civil No. 14-2362 (DWF/TNL) Civil No. 14-2929 (ADM/LIB) Civil No. 14-3405 (JNE/SER)

18

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 19 of 25

Guy Israel Greene, Plaintiff,
v. Brian Ninneman, et al.,
Defendants. ___________________________ Joseph Anthony Favors,
Plaintiff, v. Maija Seavey, et al.,
Defendants. ___________________________ Sean Brinkman,
Plaintiff, v. Thomas Pertler, et al.,
Defendants. ___________________________

Civil No. 14-3458 (JRT/TNL) Civil No. 14-3518 (JRT/LIB) Civil No. 15-571 (WMW/TNL)

19

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 20 of 25

Kevin Scott Karsjens, Plaintiff,
v. Meg McCauley, et al.,
Defendants. ___________________________ Joseph Anthony Favors,
Plaintiff, v. Lucinda Jesson, et al.,
Defendants. ___________________________ Joseph Anthony Favors,
Plaintiff, v. Lucinda Jesson,
Defendant. ___________________________ Robert A. Kunshier,
Plaintiff, v. Mark Dayton, et al.,
Defendants. ___________________________
20

Civil No. 15-2590 (DWF/HB) Civil No. 15-2853 (JRT/LIB) Civil No. 15-3010 (JRT/LIB) Civil No. 16-792 (ECT/TNL)

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 21 of 25

Robert M. Emmerich, Plaintiff,
v. Shelby Richardson, et al.,
Defendants. ___________________________ Kerry Mitchell Lenz,
Plaintiff, v. Emily Johnson Piper,
Defendant. ___________________________ Cyrus Patrick Gladden, II,
Plaintiff, v. Emily Johnson Piper, et al.,
Defendants. ___________________________

Civil No. 16-795 (ECT/HB) Civil No. 16-936 (ADM/SER) Civil No. 16-1740 (DWF/LIB)

21

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 22 of 25

Peter Allan, Sr., Plaintiff,
v. Cal Ludeman, et al.,
Defendants. ___________________________ Peter Allan, Sr.,
Plaintiff, v. Emily Johnson Piper, et al.,
Defendants. ___________________________ Lance Phillip Wickner,
Plaintiff, v. Emily Johnson Piper,
Defendant. ___________________________ Peter Allan,
Plaintiff, v. Emily Johnson Piper
Defendant. __________________________
22

Civil No. 16-2437 (NEB/LIB) Civil No. 17-152 (NEB/LIB)
Civil No. 17-656 (DWF/TNL) Civil No. 17-5131 (PJS/DTS)

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 23 of 25

Guy Greene, Plaintiff,
v. Emily Piper, et al.,
Defendants. __________________________ Joseph Edwin Harju,
Plaintiff, v. Emily Johnson Piper,
Defendant. __________________________ Dennis D. Linehan,
Plaintiff, v. Nancy Johnston, et al.,
Defendant. __________________________

Civil No. 18-428 (DWF/KMM) Civil No. 18-1172 (JNE/SER) Civil No. 18-3267 (PJS/HB)

During the pendency of the case in Karsjens et al. v. Piper, et al., Civil No. 11-3659 (DWF/TNL), the Court has issued orders either staying cases or lifting stays in cases brought by individuals or groups of individuals who have been civilly committed to the Minnesota Sex Offender Program (“MSOP”), based on the claims raised in the

23

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 24 of 25
cases and the status of the Karsjens litigation.1 Now, based on the current status of the Karsjens case, including the newly filed appeal to the Eighth Circuit, and based on the primary claims raised in the above-captioned cases, the Court concludes that the above-captioned cases that are currently stayed should remain stayed, and any newly filed cases sufficiently related to Karsjens and the issues raised on appeal should be stayed.
The undersigned, in his capacity as Chief United States District Judge for the District of Minnesota, in order to secure the just, speedy, and inexpensive resolution of the above-entitled actions pending before the Court, has consulted with the judges and magistrate judges assigned to the above-entitled matters. The entry of this Order does not preclude any of the parties from pursuing settlement of these cases.
Based on the status of the above-entitled matters, and the Court being otherwise duly advised in the premises, the Court hereby enters the following:
ORDER 1. Stay of Cases Pending Resolution of Civil No. 11-3659 (DWF/TNL) All current and future civil rights and/or habeas cases brought by an individual or group of individuals who has or have been civilly committed to the Minnesota Sex Offender Program that are sufficiently related to Karsjens et al. v. Piper, et al., Civil No. 11-3659 (DWF/TNL) and plaintiffs’ appeal to the Eighth Circuit, as determined by
1 For a recount of the various stay orders, see, e.g., Greene v. Benson et al., Civil No. 11-979 (JRT/TNL), Doc. Nos. 82, 83, 100, 101, 102. Also, for detail regarding Phase I and Phase II in the Karsjens matter, see 11-3659, Doc. No. 647, Final Pretrial Order at 2.
24

CASE 0:11-cv-03659-DWF-TNL Document 1130 Filed 12/20/18 Page 25 of 25

the Court, are hereby STAYED in all respects, pending the litigation in Karsjens, or until

further order of the Court stating otherwise.

2. Service

The Clerk of the United States District Court for the District of Minnesota is

respectfully directed to file this Order in each stayed case and provide a copy of this

Order, via United States mail, to every Plaintiff in all of the cases that are stayed.

DATED: December 20, 2018 at Minneapolis, Minnesota.

s/John R. Tunheim JOHN R. TUNHEIM Chief Judge United States District Court

25

 
 Karsjens v. Lourey, 988 F.3d 1047 (2021)

988 F.3d 1047 United States Court of Appeals, Eighth Circuit.
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 - Appellants v.
Tony LOUREY;1 Kevin Moser; Peter Puffer; Nancy Johnston; Jannine Hebert; Ann Zimmerman, in their individual and official capacities, Defendants
- Appellees
No. 18-3343 |
Submitted: October 20, 2020 |
Filed: February 24, 2021
Synopsis Background: Class of civilly committed sex offenders brought § 1983 action against Commissioner of Minnesota Department of Human Services and officials and managers of Minnesota Sex Offender Program (MSOP), asserting facial and as-applied challenges to Minnesota Commitment and Treatment Act (MCTA) and to the actions and practices of defendants. After bench trial, the United States District Court for the District of Minnesota, Donovan W. Frank, J., 109 F.Supp.3d 1139, entered judgment for plaintiffs. Defendants appealed. The Court of Appeals, 845 F.3d 394, reversed and remanded. The District Court, Frank, J., 336 F.Supp.3d 974, granted summary judgment to defendants. Plaintiffs appealed.
Holdings: The Court of Appeals, Shepherd, Circuit Judge, held that:
deliberate indifference standard, rather than shocks the conscience standard, applies to a civilly committed individual’s substantive due process claim alleging inadequate medical care, and

as a matter of first impression, conditions of confinement for a civilly committed individual violate substantive due process if they amount to punishment of the individual.
Affirmed in part, vacated in part, and remanded.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.
*1049 Appeal from United States District Court for the District of Minnesota
Attorneys and Law Firms
Raina Borrelli, Karla M. Gluek, David A. Goodwin, Daniel E. Gustafson, GUSTAFSON & GLUEK, Minneapolis, MN, for Plaintiffs - Appellants.
Scott Hiromi Ikeda, Adam H. Welle, Aaron Edward Winter, Assistant Attorneys General, ATTORNEY GENERAL’S OFFICE, Saint Paul, MN, for Defendants Appellees.
Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
Opinion
SHEPHERD, Circuit Judge.
This 42 U.S.C. § 1983 action, on appeal for the second time, requires us to clarify the legal standard applicable to the conditions of confinement claims brought by these civilly committed individuals. Having jurisdiction under 28 U.S.C. § 1291, we conclude that the district court employed the wrong legal standard in evaluating these claims. Accordingly, we affirm in part and vacate in part the district court’s judgment and remand for further proceedings.
I.
Appellants are a class of sex offenders civilly committed to the Minnesota Sex Offender Program (MSOP) pursuant to the Minnesota Civil Commitment and Treatment Act: Sexually Dangerous Persons and Sexual Psychopathic
1

Karsjens v. Lourey, 988 F.3d 1047 (2021)
Personalities, codified at Minnesota Statute § 253D (MCTA). Appellees are various MSOP managers and officials as well as the Commissioner of the Minnesota Department of Human Services. The factual background, including the histories of the MSOP and the MCTA, is detailed in our opinion from the first appeal, Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017) (hereinafter Karsjens I).
In the initial proceedings before the district court, Appellees moved for summary judgment on all claims. The district court *1050 denied summary judgment, and it divided the claims into two “phases” for trial: Phase 1, comprising Counts 1, 2, 3, 5, 6, and 7; and Phase 2, comprising Counts 8, 9, and 10.2 Counts 1 and 2 alleged facial and as-applied substantive due process challenges, respectively, to the MCTA. Count 3 alleged that Appellants receive constitutionally inadequate treatment, which is tantamount to punishment; Count 5 alleged that Appellants were subjected to improper punishment; Count 6 alleged that Appellants have been denied less restrictive alternative confinement, which is tantamount to punishment; and Count 7 alleged that Appellants were subjected to inhumane treatment, all in violation of the Fourteenth Amendment.
Following a six-week bench trial on the Phase 1 claims, the district court found in favor of Appellants on Counts 1 and 2. The court declared the MCTA unconstitutional both facially and as applied to Appellants and entered an injunction. The district court ordered no separate relief with respect to Counts 3, 5, 6, or 7.
In Karsjens I, we held that the district court had applied the wrong legal standards in finding for Appellants on Counts 1 and 2. See id. at 398. We explained that the “rational relationship” test, rather than strict scrutiny, was the proper standard for the facial challenge (Count 1). Id. at 407-08. We further explained that the proper inquiry for the as-applied challenge (Count 2) was whether the officials’ actions “shock[ ] the conscience.” Id. at 408. After applying the correct legal standards, we reversed the district court’s judgment and remanded “for further proceedings on the remaining claims in the Third Amended Complaint.” Id. at 410-11.
On remand, the parties submitted supplemental briefing to the district court on Counts 3, 5, 6, and 7. Citing Karsjens I, Appellees argued that the “shocks the conscience” standard applied, and accordingly the remaining claims failed as a matter of law. Appellants, on the other hand, argued that the remaining claims alleged conditions of

confinement that were punitive in effect and that such claims are governed by the standard announced by the Supreme Court in Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (holding, as to pretrial detainees, that conditions of confinement violate due process if they “amount to punishment of the detainee”). The district court found that Karsjens I required it to apply the “shocks the conscience” standard to the remaining claims, and accordingly dismissed Counts 3, 5, 6, and 7 with prejudice.3 It appears that the district court reached this conclusion on the grounds that Counts 3, 5, 6, and 7—like Counts 1 and 2—sounded in Fourteenth Amendment substantive due process. See R. Doc. 1108, at 15-19.
II.
The issue in this appeal is whether the district court applied the correct legal standard in dismissing Appellants’ claims in Counts 3, 5, 6, and 7 of the Third Amended Complaint. This is a question of law which we review de novo. See, e.g., Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563, 134 S.Ct. 1744, 188 L.Ed.2d 829 (2014); *1051 Karsjens I, 845 F.3d at 403 (recognizing that questions of law are reviewed de novo).
A.
We first consider Appellants’ claim of constitutionally inadequate treatment (Count 3). Particularly in light of Appellants’ arguments to the district court on remand and to this Court, we find this claim to be duplicative of the as-applied due process claim (Count 2) that we previously dismissed after applying the “shocks the conscience” standard. See Karsjens I, 845 F.3d at 410. Moreover, as we stated in Karsjens I, the Supreme Court has not recognized a “due process right to appropriate or effective or reasonable treatment of the illness or disability that triggered the patient’s involuntary confinement.” Id. (quoting Strutton v. Meade, 668 F.3d 549, 557 (8th Cir. 2012)). Accordingly, we conclude that the district court properly dismissed Count 3 of Appellants’ Third Amended Complaint after applying the “shocks the conscience” standard.
2

Karsjens v. Lourey, 988 F.3d 1047 (2021)
B.
The remaining claims and supporting allegations presently before us differ from those we evaluated in Karsjens I. In Karsjens I, the claims and allegations in Counts 1 and 2—and subsequent bench trial and findings—focused on the statutory scheme itself and the officials’ implementation thereof, specifically the indefinite nature of Appellants’ confinement; the lack of automatic periodic review; and the administration of the treatment program. By contrast, the present claims and allegations focus squarely on the conditions of confinement, including the inadequacy of meals, double-bunking, overly harsh punishment for rules violations, property being taken and destroyed before any hearing, the lack of less restrictive alternatives, and the inadequacy of medical care. Cf. Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (“[T]he medical care a prisoner receives is just as much a ‘condition’ of his confinement as the food he is fed, the clothes he is issued, the temperature he is subjected to in his cell, and the protection he is afforded against other inmates.”). In other words, in Counts 5, 6, and 7, Appellants do not challenge their inability to be released from the facility but rather the conditions within the facility. They contend that, considered as a whole, their conditions of confinement amount to punishment in violation of the Fourteenth Amendment. See Youngberg v. Romeo, 457 U.S. 307, 315-16, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (noting that civilly confined persons “may not be punished at all”).
1.
We next consider Appellants’ contentions that they were deprived of adequate medical care. In the “Facts” section of the Third Amended Complaint, Appellants allege that they have experienced delays in their receipt of necessary prescription medication. They further allege that Appellees do not provide “necessary insulin and other diabetic management care to the [Appellants] with diabetes.” R. Doc. 635, at 47. In Count 7, Appellants allege that they are “subject to inadequate medical treatment that has resulted in injury.” R. Doc. 635, at 73.
We previously found that the “deliberate indifference”

standard applied to a civilly committed individual’s claim of inadequate medical care. See Senty-Haugen v. Goodno, 462 F.3d 876, 889-90 (8th Cir. 2006) (citing Davis v. Hall, 992 F.2d 151, 152-53 (8th Cir. 1993) (per curiam)) (considering allegations regarding the Missouri Sex Offender Program’s treatment of individual’s heart condition, broken leg, *1052 and cyst). To prevail under that standard, a plaintiff must show that “officials knew about excessive risks to his health but disregarded them, and that their unconstitutional actions in fact caused his injuries.” Id. at 890 (citation omitted). We conclude that the district court should have applied the deliberate indifference standard, rather than the “shocks the conscience” standard, to Appellants’ inadequate medical care claim.
2.
We now turn to the remaining claims in Counts 5, 6, and 7, in which Appellants allege that they were subjected to punitive conditions of confinement. Neither pretrial detainees nor civilly committed individuals may be punished without running afoul of the Fourteenth Amendment. See Bell, 441 U.S. at 535, 99 S.Ct. 1861 (holding that pretrial detainees may not be punished); Youngberg, 457 U.S. at 316, 102 S.Ct. 2452. Regarding pretrial detainees, this prohibition against punishment encompasses conditions of confinement. Bell, 441 U.S. at 535-37, 99 S.Ct. 1861; accord Stearns v. Inmate Servs. Corp., 957 F.3d 902, 908-09 (8th Cir. 2020). In analyzing whether a condition of confinement is punitive, courts “decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Bell, 441 U.S. at 538, 99 S.Ct. 1861. Unless the detainee can show “an expressed intent to punish ..., that determination generally will turn on ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation’ ” to such alternative purpose. Id. (alteration in original) (citation omitted); see also Kingsley v. Hendrickson, 576 U.S. 389, 398, 135 S.Ct. 2466, 192 L.Ed.2d 416 (2015) (“[A]s Bell itself shows (and as our later precedent affirms), a pretrial detainee can prevail by providing ... objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.”).
Although the Supreme Court has not established a
3

Karsjens v. Lourey, 988 F.3d 1047 (2021)
constitutional standard for evaluating the conditions of a civilly committed individual’s confinement, it has stated that “[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). In Beaulieu v. Ludeman, we applied the Bell standard to a claim brought by an individual who alleged that the MSOP’s practice of double-bunking was punitive. See 690 F.3d 1017, 1042-43 (8th Cir. 2012).
Although we have not yet considered other allegedly punitive conditions in the context of civil commitment, we find our decisions regarding pretrial detainees to be instructive.4 “Since Bell became law, we have applied its standard to conditions-of-confinement claims brought by pretrial detainees.” Stearns, 957 F.3d at 908 (applying Bell to detainee’s claim that he was shackled for eight days during an extradition transport). Indeed, we have applied Bell to a variety of conditions of confinement claims, including: restrictive confinement in a small cell, see Villanueva v. George, 659 F.2d 851, 854 (8th Cir. 1981) (en banc) (holding that the jury could conclude *1053 conditions were punitive and thus unconstitutional “based upon the totality of the circumstances,” including the size of the cell, time spent in the cell, and lack of opportunities for exercise and recreation) (finding that officials’ explanation that the conditions were due to “a shortage of correctional officers” was “not a valid defense”); a detainee’s transport in a dog cage, see Morris v. Zefferi, 601 F.3d 805, 809, 811 (8th Cir. 2010) (concluding that such conditions were punitive because they were “excessive in relation to the goal of preventing escape”); overcrowding, see Campbell v. Cauthron, 623 F.2d 503, 505-07 (8th Cir. 1980) (holding that conditions were punitive where detainees had room in their cells only to sit and lie down, were kept in cells 24 hours a day, and were permitted to leave only three times a week for 15-30 minutes); exposure to an overflowing toilet, see Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996) (finding no constitutional violation because detainee’s alleged exposure to the stench of his own feces and urine for four days was de minimis; detainee did not allege that he was exposed to disease or suffered any other consequence from the exposure); and deprivation of clothing, see Green v. Baron, 879 F.2d 305, 310 (8th Cir. 1989) (holding that jury could conclude conditions were “reasonably related to a legitimate governmental objective and not excessive in relation[ ] to that objective”).5 But see Crow v. Montgomery, 403 F.3d 598, 600-01 (8th Cir. 2005) (applying deliberate indifference standard to

pretrial detainee’s claim that jail officials failed to adequately protect him from violence of other detainees; noting plaintiff alleged that officials acted with deliberate indifference), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
Based on the Supreme Court’s pronouncements in Bell and Youngberg, we conclude that the Bell standard applies equally to conditions of confinement claims brought by pretrial detainees and civilly committed individuals, as neither group may be punished. This conclusion is further supported by our consistent application of the Bell standard to such claims brought by pretrial detainees. Moreover, several circuits have applied Bell to conditions of confinement claims brought by individuals in civil commitment. See Matherly v. Andrews, 859 F.3d 264, 274-76 (4th Cir. 2017); Healey v. Spencer, 765 F.3d 65, 78-79 (1st Cir. 2014); Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir. 2003). In light of Supreme Court precedent, our own precedent governing pretrial detainees, and persuasive authority from our sister circuits, we hold that the Bell standard governs the claims in Counts 5, 6, and 7 (except the claim of inadequate medical care) that allege punitive conditions of confinement.
C.
Accordingly, the district court erred as a matter of law when it applied *1054 the “shocks the conscience” standard to Counts 5, 6, and 7. On remand, the district court is instructed to consider the claim of inadequate medical care under the deliberate indifference standard outlined in Senty-Haugen, and to consider the remaining claims under the standard for punitive conditions of confinement outlined in Bell. “In considering whether the conditions ... are unconstitutionally punitive,” the court must “review the totality of the circumstances of [Appellants’] confinement.” Morris, 601 F.3d at 810.
III.
For the foregoing reasons, we affirm the district court’s dismissal of Count 3 but vacate the district court’s dismissal of Counts 5, 6, and 7, and remand for further
4

Karsjens v. Lourey, 988 F.3d 1047 (2021) proceedings not inconsistent with this opinion. All Citations

988 F.3d 1047 Footnotes

1

Tony Lourey, the current Commissioner of the Minnesota Department of Human Services (DHS), is automatically

substituted for former DHS Commissioner Emily Johnson Piper. See Fed. R. App. P. 43(c)(2).

2

Count 4 was also included in Phase 1, but it was dismissed with prejudice after trial at Appellants’ request.

Additionally, as explained below, see infra note 3, none of the Phase 2 claims is before us in this appeal.

3

Appellees also renewed their motion for summary judgment on the Phase 2 claims, which the district court granted.

Appellants do not challenge this decision on appeal.

4

We have previously considered a claim of inadequate nutrition, but because that claim involved only the medical

effects of inadequate nutrition and the plaintiff did not allege it was punitive, we applied the deliberate indifference

standard. See Ingrassia v. Schafer, 825 F.3d 891, 897 (8th Cir. 2016).

5

We note that in Beaulieu, the plaintiffs also brought a claim alleging inadequate sanitation at the MSOP. See 690

F.3d at 1043-45. We evaluated this claim under the deliberate indifference standard, considering whether the

conditions posed a substantial risk of serious harm of which officials were aware but deliberately disregarded. Id. at

1045. This is not the standard we have applied to such claims brought by pretrial detainees. See, e.g., Smith, 87 F.3d

at 268. It appears that the Beaulieu plaintiffs framed their sanitation claim under the deliberate indifference

standard. See 690 F.3d at 1044 (“The Patients assert that they presented adequate evidence showing the unsanitary

conditions posed a substantial risk of harm and that the DHS officials knew of and disregarded their health and

safety. They argue that the DHS officials’ actions constitute deliberate indifference ....”). Because Appellants here do

not allege any problems with sanitation, we need not address or resolve this potential discrepancy in our treatment

of sanitation claims.

End of Document

5

 
 APPEAL,CLOSED,CV,PROTO,RELTD,STAYED
U.S. District Court U.S. District of Minnesota (DMN) CIVIL DOCKET FOR CASE #: 0:11−cv−03659−DWF−TNL

Karsjens et al v. Minnesota Department of Human Services et al Assigned to: Judge Donovan W. Frank Referred to: Magistrate Judge Tony N. Leung Demand: $750,000 rel Cases: 0:11−cv−01704−DWF−TNL
0:14−cv−00896−DWF−FLN
Case in other court: USCA 8th Circuit, 15−01500
15−03485
US Court of Appeals, Eighth Circuit, 18−03343 Cause: 42:1983 Civil Rights Act
Special Master

Date Filed: 12/21/2011 Date Terminated: 08/23/2018 Jury Demand: Both Nature of Suit: 560 Civil Detainee: Conditions of Confinement Jurisdiction: Federal Question

Eric J. Magnuson former Chief Justice Eric J. Magnuson TERMINATED: 01/03/2017

represented by Eric J Magnuson Robins Kaplan LLP 800 LaSalle Ave Ste 2800 Mpls, MN 55402−2015 612−349−8548 Fax: 612−977−8650 Email: emagnuson@RobinsKaplan.com TERMINATED: 01/03/2017 LEAD ATTORNEY

Plaintiff
Kevin Scott Karsjens and all others similarly situated

represented by Daniel E Gustafson Gustafson Gluek PLLC 120 South 6th Street Suite 2600 Mpls, MN 55402 612−333−8844 Fax: 612−339−6622 Email: dgustafson@gustafsongluek.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A Goodwin Gustafson Gluek PLLC 120 South 6th Street, Suite 2600 Mpls, MN 55402 612−333−8844 Fax: 612−339−6622 Email: dgoodwin@gustafsongluek.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric S Taubel Gustafson Gluek PLLC Canadian Pacific Plaza 120 South Sixth Street Suite 2600 Minneapolis, MN 55402 612−333−8844 Fax: 612−339−6622 Email: etaubel@gustafsongluek.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kevin John DeVillion and all others similarly situated
Plaintiff

Karla M Gluek Gustafson Gluek PLLC 120 South 6th Street Suite 2600 Mpls, MN 55402 612−333−8844 Fax: 612−339−6622 Email: kgluek@gustafsongluek.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli Gustafson Gluek PLLC 120 South 6th Street Suite 2600 Minneapolis, MN 55402 612−333−8844 Email: rborrelli@gustafsongluek.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust Gustafson Gluek PLLC Canadian Pacific Plaza 120 South Sixth Street Minneapolis, MN 55402 612−333−8844 Fax: 612−339−6622 Email: lmassopust@gustafsongluek.com TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED
represented by Daniel E Gustafson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric S Taubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla M Gluek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust (See above for address) TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED

Peter Gerard Lonergan and all others similarly situated
Plaintiff James Matthew Noyer, Sr. and all others similarly situated
Plaintiff James John Rud and all others similarly situated

represented by Daniel E Gustafson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric S Taubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla M Gluek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust (See above for address) TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED
represented by Daniel E Gustafson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric S Taubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla M Gluek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust (See above for address) TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED
represented by Daniel E Gustafson (See above for address)

Plaintiff James Allen Barber and all others similarly situated
Plaintiff Craig Allen Bolte and all others similarly situated

LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric S Taubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla M Gluek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust (See above for address) TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED
represented by Daniel E Gustafson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric S Taubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla M Gluek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust (See above for address) TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED
represented by Daniel E Gustafson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Dennis Richard Steiner and all others similarly situated
Plaintiff Kaine Joseph Braun and all others similarly situated

David A Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric S Taubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla M Gluek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust (See above for address) TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED
represented by Daniel E Gustafson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric S Taubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla M Gluek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust (See above for address) TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED
represented by Daniel E Gustafson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Goodwin

Plaintiff Christopher John Thuringer and all others similarly situated
Plaintiff Kenny S. Daywitt and all others similarly situated

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric S Taubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla M Gluek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust (See above for address) TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED
represented by Daniel E Gustafson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric S Taubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla M Gluek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust (See above for address) TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED
represented by Daniel E Gustafson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Goodwin (See above for address) LEAD ATTORNEY

Plaintiff Bradley Wayne Foster and all others similarly situated
Plaintiff David Leroy Gamble, Jr. and all others similarly situated

ATTORNEY TO BE NOTICED
Eric S Taubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla M Gluek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust (See above for address) TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED
represented by Daniel E Gustafson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric S Taubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla M Gluek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust (See above for address) TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED
represented by Daniel E Gustafson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Brian K. Hausfeld and all others similarly situated
V. Defendant Minnesota Department of Human Services TERMINATED: 03/16/2012

Eric S Taubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla M Gluek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust (See above for address) TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED
represented by Daniel E Gustafson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A Goodwin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric S Taubel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karla M Gluek (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raina Borrelli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucia G Massopust (See above for address) TERMINATED: 02/16/2016 ATTORNEY TO BE NOTICED
represented by Ricardo Figueroa Minnesota Department of Human Services P.O. Box 64998 St Paul, MN 55164 651−431−2920 Email: rick.figueroa@state.mn.us TERMINATED: 08/11/2014 LEAD ATTORNEY

Defendant Minnesota Sex Offender Program TERMINATED: 03/16/2012
Defendant Emily Johnson Piper

Steven H Alpert Minnesota Attorney General's Office − Ste 1100 445 Minnesota St. Ste 1100 INACTIVE St Paul, MN 55101−2128 651−757−1405 Fax: 612−282−5832 Email: steve.alpert@ag.state.mn.us TERMINATED: 07/07/2014
represented by Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Steven H Alpert (See above for address) TERMINATED: 07/07/2014
represented by Aaron Winter Minnesota Attorney General's Office − Ste 1100 445 Minnesota St Ste 1100 St Paul, MN 55101−2128 651−757−1453 Fax: 651−282−5832 Email: aaron.winter@ag.state.mn.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam H Welle Minnesota Attorney General's Office Bremer Tower 445 Minnesota Street Ste 1200 St. Paul, MN 55101 651−757−1425 Email: adam.welle@ag.state.mn.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan A Brennaman Faegre Baker Daniels 90 S. 7th St. Ste. 2200 Minneapolis, MN 55402 612−766−8727 Email: nate.brennaman@faegrebd.com TERMINATED: 05/18/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Scott H Ikeda Minnesota Attorney General's Office 445 Minnesota Street Suite 1100

Defendant Kevin Moser in their individual and official capacities
Defendant Dennis Benson in their individual and official capacities TERMINATED: 09/21/2015

St. Paul, MN 55101 651−757−1385 Fax: 651−282−5832 Email: scott.ikeda@ag.state.mn.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Max H Kieley Minnesota Attorney General's Office − Ste 900 445 Minnesota St Ste 900 St Paul, MN 55101−2127 651−757−1244 Fax: 651−282−5832 Email: max.kieley@ag.state.mn.us TERMINATED: 08/21/2013
Steven H Alpert (See above for address) TERMINATED: 07/08/2014 ATTORNEY TO BE NOTICED
represented by Aaron Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam H Welle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan A Brennaman (See above for address) TERMINATED: 05/18/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Scott H Ikeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Max H Kieley (See above for address) TERMINATED: 08/21/2013
Steven H Alpert (See above for address) TERMINATED: 07/08/2014
represented by Aaron Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam H Welle

Defendant Michael Tessner TERMINATED: 03/16/2012
Defendant Peter Puffer

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan A Brennaman (See above for address) TERMINATED: 05/18/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Scott H Ikeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Max H Kieley (See above for address) TERMINATED: 08/21/2013
Steven H Alpert (See above for address) TERMINATED: 07/08/2014 ATTORNEY TO BE NOTICED
represented by Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Steven H Alpert (See above for address) TERMINATED: 07/07/2014
represented by Aaron Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam H Welle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan A Brennaman (See above for address) TERMINATED: 05/18/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Scott H Ikeda (See above for address) LEAD ATTORNEY

Defendant Jim Berg TERMINATED: 03/16/2012
Defendant Ann Zimmerman in their individual and official capacities
Defendant Laurie Severson TERMINATED: 03/16/2012

ATTORNEY TO BE NOTICED
Max H Kieley (See above for address) TERMINATED: 08/21/2013
Steven H Alpert (See above for address) TERMINATED: 07/08/2014
represented by Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Steven H Alpert (See above for address) TERMINATED: 07/07/2014
represented by Aaron Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam H Welle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan A Brennaman (See above for address) TERMINATED: 05/18/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Scott H Ikeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Max H Kieley (See above for address) TERMINATED: 08/21/2013
Steven H Alpert (See above for address) TERMINATED: 07/08/2014 ATTORNEY TO BE NOTICED
represented by Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Steven H Alpert

Defendant Greg Carlson in their individual and official capacities TERMINATED: 08/08/2013
Defendant Dr. Elisabeth Barbo TERMINATED: 03/16/2012
Defendant Mehrdad Sabestari TERMINATED: 03/16/2012
Defendant Terry Kneisel TERMINATED: 03/16/2012
Defendant Scott Benoit TERMINATED: 03/16/2012

(See above for address) TERMINATED: 07/07/2014 ATTORNEY TO BE NOTICED
represented by Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Max H Kieley (See above for address) TERMINATED: 08/21/2013
Steven H Alpert (See above for address) TERMINATED: 07/07/2014 ATTORNEY TO BE NOTICED
represented by Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Steven H Alpert (See above for address) TERMINATED: 07/07/2014 ATTORNEY TO BE NOTICED
represented by Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Steven H Alpert (See above for address) TERMINATED: 07/07/2014 ATTORNEY TO BE NOTICED
represented by Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Steven H Alpert (See above for address) TERMINATED: 07/07/2014 ATTORNEY TO BE NOTICED
represented by Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Steven H Alpert (See above for address) TERMINATED: 07/07/2014 ATTORNEY TO BE NOTICED

Defendant Susan Johnson TERMINATED: 03/16/2012
Defendant Jean Seykora TERMINATED: 03/16/2012
Defendant John Doe whose true name is unknown TERMINATED: 03/16/2012
Defendant Jane Doe whose true name is unknown TERMINATED: 03/16/2012
Defendant Nancy Johnston in their individual and official capacities

represented by Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Steven H Alpert (See above for address) TERMINATED: 07/07/2014 ATTORNEY TO BE NOTICED
represented by Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Steven H Alpert (See above for address) TERMINATED: 07/07/2014 ATTORNEY TO BE NOTICED
represented by Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Steven H Alpert (See above for address) TERMINATED: 07/07/2014 ATTORNEY TO BE NOTICED
represented by Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Steven H Alpert (See above for address) TERMINATED: 07/07/2014 ATTORNEY TO BE NOTICED
represented by Aaron Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam H Welle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan A Brennaman (See above for address) TERMINATED: 05/18/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Jannine Hebert in their individual and official capacities
Amicus ACLU of Minnesota TERMINATED: 09/14/2015

Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Scott H Ikeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven H Alpert (See above for address) TERMINATED: 07/07/2014 ATTORNEY TO BE NOTICED
represented by Aaron Winter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam H Welle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan A Brennaman (See above for address) TERMINATED: 05/18/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ricardo Figueroa (See above for address) TERMINATED: 08/11/2014 LEAD ATTORNEY
Scott H Ikeda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven H Alpert (See above for address) TERMINATED: 07/07/2014 ATTORNEY TO BE NOTICED
represented by Eric S Janus William Mitchell College of Law 875 Summit Ave St Paul, MN 55105 651−290−6345 Fax: 651−290−6426 Email: eric.janus@wmitchell.edu TERMINATED: 09/14/2015 LEAD ATTORNEY
Teresa J Nelson ACLU of Minnesota P.O. Box 14720 Minneapolis, MN 55414 651−529−1692 Email: tnelson@aclu−mn.org

Amicus Thomas Evenstad TERMINATED: 02/13/2014 Amicus INTERNATIONAL HUMANITARIAN LAW INSTITUTE TERMINATED: 11/07/2014
Movant Hollis J. Larson TERMINATED: 12/05/2012
Movant Stephen Danforth TERMINATED: 12/26/2013
Movant Ronald Harrison TERMINATED: 12/26/2013
Movant Timothy Briesemeister TERMINATED: 12/26/2013
Movant Raymond Leon Semler TERMINATED: 12/26/2013
Movant Christopher Paul Jackson TERMINATED: 12/26/2013
Movant Hennepin County TERMINATED: 09/14/2015

TERMINATED: 09/14/2015 LEAD ATTORNEY
represented by Peter J Nickitas 431 S 7th Street, Suite 2446 Minneapolis, MN 55415 651−238−3445 Email: peterjnickitaslawllc@gmail.com TERMINATED: 11/07/2014 LEAD ATTORNEY
represented by Hollis J. Larson MSOP 1111 Hwy 73 Moose Lake, MN 55767 PRO SE
represented by Stephen Danforth 147636 1101 Linden Lane Faribault, MN 55021−6400 PRO SE
represented by Ronald Harrison 1111 Hwy 73 Moose Lake, MN 55767 PRO SE
represented by Timothy Briesemeister 1111 Hwy 73 Moose Lake, MN 55767 PRO SE
represented by Raymond Leon Semler 1111 Highway 73 Moose Lake, MN 55767 PRO SE
represented by Christopher Paul Jackson 1111 Hwy 73 Moose Lake, MN 55767 PRO SE
represented by John L Kirwin Hennepin County Attorney's Office − A2000 300 S 6th St Ste A−2000

Movant Star Tribune Media Company LLC TERMINATED: 08/07/2015
Movant American Public Media Group TERMINATED: 08/07/2015
Movant The Associated Press TERMINATED: 08/07/2015

Mpls, MN 55487 612−596−7704 Fax: 612−348−6430 Email: john.kirwin@hennepin.us TERMINATED: 09/14/2015 LEAD ATTORNEY
represented by John P Borger Faegre Baker Daniels LLP 90 S 7th St Ste 2200 Mpls, MN 55402−3901 612−766−7501 Fax: 612−766−1600 Email: john.borger@FaegreBD.com TERMINATED: 08/07/2015 LEAD ATTORNEY
Mary Andreleita Walker Ballard Spahr LLP 80 S. 8th St. Ste 2000 Minneapolis, MN 55402 612−371−6222 Fax: 612−371−3207 Email: walkerl@ballardspahr.com TERMINATED: 08/07/2015 LEAD ATTORNEY
Randy M Lebedoff Star Tribune 425 Portland Ave S. INACTIVE Mpls, MN 55488 612−673−7133 Fax: 612−677−4106 Email: randy.lebedoff@startribune.com TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by John P Borger (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Mary Andreleita Walker (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Randy M Lebedoff (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by John P Borger (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Mary Andreleita Walker

Movant CBS Broadcasting Inc TERMINATED: 08/07/2015
Movant KSTP−TV, LLC TERMINATED: 08/07/2015
Movant Minnesota Society of Professional Journalists, the TERMINATED: 08/07/2015
Movant MinnPost TERMINATED: 08/07/2015

(See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Randy M Lebedoff (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by John P Borger (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Mary Andreleita Walker (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Randy M Lebedoff (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by John P Borger (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Mary Andreleita Walker (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Randy M Lebedoff (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by John P Borger (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Mary Andreleita Walker (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Randy M Lebedoff (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by John P Borger (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY

Movant Public Record Media TERMINATED: 08/07/2015
Movant Reporters Committee for Freedom of the Press, the TERMINATED: 08/07/2015
Movant The New York Times Company TERMINATED: 08/07/2015
Movant Saint Paul Pioneer Press, the TERMINATED: 08/07/2015

Mary Andreleita Walker (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by John P Borger (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Mary Andreleita Walker (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Randy M Lebedoff (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by John P Borger (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Mary Andreleita Walker (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Randy M Lebedoff (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by John P Borger (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Mary Andreleita Walker (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
Randy M Lebedoff (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by Mark R Anfinson Anfinson Law Office 3109 Hennepin Ave S Mpls, MN 55408 612−827−5611 Fax: 612−827−3564 Email: mranfinson@lawyersofminnesota.com

Movant Times Media TERMINATED: 08/07/2015 doing business as Saint Cloud Times, the
Movant Minnesota Broadcasters Association, the TERMINATED: 08/07/2015
Movant Minnesota Newspaper Association, the TERMINATED: 08/07/2015
Movant Minnesota Coalition on Government Information, the TERMINATED: 08/07/2015
Movant Michael Benson TERMINATED: 12/26/2013

TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by Mark R Anfinson (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by Mark R Anfinson (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by Mark R Anfinson (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by Mark R Anfinson (See above for address) TERMINATED: 08/07/2015 LEAD ATTORNEY
represented by Michael Benson 111I Hwy 73 Moose Lake, MN 55767 PRO SE

Date Filed 12/21/2011
12/21/2011 12/21/2011 12/21/2011 12/21/2011 12/21/2011 12/21/2011

# Docket Text
1 42 USC 1983 COMPLAINT against All Defendants, filed by James Allen Barber, David LeRoy Gamble, Kevin Scott Karsjens, Bradley Wayne Foster, Kaine Joseph Braun, Brian Keith Hausfeld, Kenny S. Daywitt, James John Rud, Kevin John DeVillion, Dennis Richard Steiner, Christopher John Thuringer, Craig Allen Bolte, Peter Gerard Lonergan, James Matthew Noyer, Sr. Assigned to Judge Donovan W. Frank per 5th Division Prisoner List and referred to Magistrate Judge Janie S. Mayeron. (Attachments: # 1 Civil Cover Sheet, # 2 Cover Letter) (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
2 Application to Proceed In Forma Pauperis in District Court filed by James Allen Barber. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
3 Application to Proceed In Forma Pauperis in District Court filed by Craig Allen Bolte. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
4 Application to Proceed In Forma Pauperis in District Court filed by Kaine Joseph Braun. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
5 Application to Proceed In Forma Pauperis in District Court filed by Kenny S. Daywitt. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
6 Application to Proceed In Forma Pauperis in District Court filed by Kevin John DeVillion. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
7 Application to Proceed In Forma Pauperis in District Court filed by Bradley Wayne Foster. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)

12/21/2011 12/21/2011 12/21/2011 12/21/2011 12/21/2011 12/21/2011 12/21/2011 12/21/2011 12/21/2011
12/21/2011
12/21/2011 12/21/2011 12/21/2011 12/21/2011 12/21/2011 12/21/2011
01/06/2012

8 Application to Proceed In Forma Pauperis in District Court filed by David LeRoy Gamble. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
9 Application to Proceed In Forma Pauperis in District Court filed by Brian Keith Hausfeld. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
10 Application to Proceed In Forma Pauperis in District Court filed by Kevin Scott Karsjens. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
11 Application to Proceed In Forma Pauperis in District Court filed by Peter Gerard Lonergan. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
12 Application to Proceed In Forma Pauperis in District Court filed by James Matthew Noyer, Sr. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
13 Application to Proceed In Forma Pauperis in District Court filed by James John Rud. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
14 Application to Proceed In Forma Pauperis in District Court filed by Dennis Richard Steiner. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
15 Application to Proceed In Forma Pauperis in District Court filed by Christopher John Thuringer. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
16 Application for Temporary Restraining Order/Preliminary by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David LeRoy Gamble, Brian Keith Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
17 EXHIBITS A−C re 16 Application for Temporary Restraining Order/Preliminary by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David LeRoy Gamble, Brian Keith Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (akl) QC'd on 2/2/2012 (jmf). (Entered: 12/22/2011)
18 MEMORANDUM in Support re 16 Application for Temporary Restraining Order/Preliminary filed by All Plaintiffs. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
19 AFFIDAVIT of Kevin Scott Karsjens in SUPPORT OF 16 Application for Temporary Restraining Order/Preliminary filed by All Plaintiffs. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
20 AFFIDAVIT of Kevin Scott Karsjens in SUPPORT OF 16 Application for Temporary Restraining Order/Preliminary filed by All Plaintiffs. (Attachments: # 1 Exhibits 1−2, # 2 Exhibit 3)(akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
21 AFFIDAVIT of David Leroy Gamble, Jr. in SUPPORT OF 16 Application for Temporary Restraining Order/Preliminary filed by All Plaintiffs. (akl) QC'd on 2/2/2012 (jmf). (Entered: 12/22/2011)
22 AFFIDAVIT of Peter Gerard Lonergan in SUPPORT OF 16 Application for Temporary Restraining Order/Preliminary filed by All Plaintiffs. (akl) QC'd on 2/2/2012 (jmf). (Entered: 12/22/2011)
23 MOTION for Appointment of Counsel by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David LeRoy Gamble, Brian Keith Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (akl) QC'd on 2/1/2012 (jmf). (Entered: 12/22/2011)
24 MOTION for Class Certification Pursuant to Rule 23 by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)

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25 MEMORANDUM in Support re 24 MOTION for Class Certification Pursuant to Rule 23 filed by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
26 INDEX of Affidavits filed. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
27 AFFIDAVIT of Terry Carlson Allynn by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
28 AFFIDAVIT of Kenneth Eugene Andreoff by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
29 AFFIDAVIT of David B. Baker by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
30 AFFIDAVIT of David Allan Bauer by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
31 AFFIDAVIT of Kevin Aaron Beaulieu by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
32 AFFIDAVIT of Carmichael Deangello Bedford by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
33 AFFIDAVIT of Raymond John Booth, Jr. by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
34 AFFIDAVIT of Bill Mathew Boots by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
35 AFFIDAVIT of Tony Blaylock by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
36 AFFIDAVIT of Michael Allen Brandt by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
37 AFFIDAVIT of Roland Joseph Brant by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
38 AFFIDAVIT of Joel Dewayne Brown by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
39 AFFIDAVIT of Joshua Jeremiah Brundy by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
40 AFFIDAVIT of Earl Buckner Jr. by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
41 AFFIDAVIT of William Oliver Busick by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
42 AFFIDAVIT of Brent Lee Cichon by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
43 AFFIDAVIT of Jodie Ray Clews by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
44 AFFIDAVIT of Samuel David Custer by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
45 AFFIDAVIT of Larry Franklin Dean by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
46 AFFIDAVIT of Kenneth Wayne Delaney by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
47 AFFIDAVIT of Antonio Robert Difronzo by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
48 AFFIDAVIT of Daniel Doege by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)

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49 AFFIDAVIT of Kenneth Richard Domrose by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
50 AFFIDAVIT of Timothy Felix Dougherty by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
51 AFFIDAVIT of Steven L. Edwards by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
52 AFFIDAVIT of Francis James Farley by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
53 AFFIDAVIT of Joshua Adam Gardner by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
54 AFFIDAVIT of Russell John Gifford by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/09/2012)
55 AFFIDAVIT of Kristjan Robert Gislason by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/09/2012)
56 AFFIDAVIT of Edward Harry Grayhill by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
57 AFFIDAVIT of Scott Duane Gunderson by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
58 AFFIDAVIT of Robert Dale Hall by Kevin Scott Karsjens. (jam) QC'd on 1/10/2012 (jam). Modified on 1/12/2012 (jmf). (Entered: 01/10/2012)
59 AFFIDAVIT of Jude Wilson Halter by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
60 AFFIDAVIT of Randy Earl Hammermeister by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
61 AFFIDAVIT of Kenneth D. Hand by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
62 AFFIDAVIT of Joseph Edwin Harju by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
63 AFFIDAVIT of Steven James Hawkins by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
64 AFFIDAVIT of Rodney Jon Heginger by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
65 AFFIDAVIT of Charles Michael Hoban by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
66 AFFIDAVIT of Michael Andrew Hofbauer by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
67 AFFIDAVIT of Michael St. John Hoffman by Kevin Scott Karsjens. (jam) QC'd on 1/10/2012 (jam). Modified on 1/11/2012 (jmf). (Entered: 01/10/2012)
68 AFFIDAVIT of Joshua R. Holmquist by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
69 AFFIDAVIT of Christopher Jackson by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
70 AFFIDAVIT of Justin Casey Jacobson by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
71 AFFIDAVIT of David Wayne Hamilton by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
72 AFFIDAVIT of Scott Phillip Johnson by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)

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73 AFFIDAVIT of Peter William Johnson by Kevin Scott Karsjens. (jam) Modified on 1/10/2012 (jam). QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
74 AFFIDAVIT of Kevin R. Johnson by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
75 AFFIDAVIT of Kevin Johnson by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
76 AFFIDAVIT of Michael Jones by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
77 AFFIDAVIT of Steven Charles Kaelble by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). Modified text on 1/17/2012 (jam). (Entered: 01/10/2012)
78 AFFIDAVIT of Tom Gary Karlson by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
79 AFFIDAVIT of Kevin Scott Karsjens by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
80 AFFIDAVIT of Gene Lee Keller, Sr. by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
81 AFFIDAVIT of Michael N. Kocur by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
82 AFFIDAVIT of Brian Leland Koplin by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
83 AFFIDAVIT of Mardell James Kutzke by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
84 AFFIDAVIT of Jerome Anthony LaChapelle by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
85 AFFIDAVIT of Steven Richard Landis by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
86 AFFIDAVIT of Michael Anthony Lee by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
87 AFFIDAVIT of Ernesto Longoria by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
88 AFFIDAVIT of Nicholas Harold Luhmann by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
89 AFFIDAVIT of Jeremy Allan Lund by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
90 AFFIDAVIT of Andrew Gary Mallan by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
91 AFFIDAVIT of Michael Edward Marlowe by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
92 AFFIDAVIT of Richard Thomas Martinez by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
93 AFFIDAVIT of Ricky L. Mason by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
94 AFFIDAVIT of Jason Charles Melin by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
95 AFFIDAVIT of Johsua Niven Mertz by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
96 AFFIDAVIT of Raymond Messer by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)

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97 AFFIDAVIT of Shawn Metzger by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
98 AFFIDAVIT of James L. Moos by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
99 AFFIDAVIT of Harley Morris by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
100 AFFIDAVIT of Michael Mrozek by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
101 AFFIDAVIT of Azeal Naudiz by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
102 AFFIDAVIT of Ryan Patrick Navratil by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
103 AFFIDAVIT of Timothy Wayne Nygaard by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
104 AFFIDAVIT of Michael Allen Olson by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
105 AFFIDAVIT of Clifford David Ostby by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
106 AFFIDAVIT of Donald Iver Pohl by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
107 AFFIDAVIT of Leon James Preston by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
108 AFFIDAVIT of James Robert Puffer by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
109 AFFIDAVIT of Gerald Wayne Raisch by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
110 AFFIDAVIT of James Lee Ray by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
111 AFFIDAVIT of Norberto Salinas by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
112 AFFIDAVIT of Jason Wayne Sand by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
113 AFFIDAVIT of Timothy Richard Sarne−Brandt by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
114 AFFIDAVIT of Allyn Lu Schlumebuser by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
115 AFFIDAVIT of Dwight Lewis Shaw by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
116 AFFIDAVIT of Shawn James Simons by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
117 AFFIDAVIT of Eric Michael Sorenson by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
118 AFFIDAVIT of James Williams Stehlik by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
119 AFFIDAVIT of Brian Leo Stirens by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
120 AFFIDAVIT of Kent Lee Stricherz by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)

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121 AFFIDAVIT of Ryan Richard Swenson by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
122 AFFIDAVIT of Rahman Abdu Thomas by Kevin Scott Karsjens. (jam) QC'd on 1/10/2012 (jam). Modified on 1/11/2012 (jmf). (Entered: 01/10/2012)
123 AFFIDAVIT of Richard Tiffany by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
124 AFFIDAVIT of Limous Titworth Jr. by Kevin Scott Karsjens. (jam) (Entered: 01/10/2012)
125 AFFIDAVIT of Thomas Lee Tyler by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
126 AFFIDAVIT of Martin Egene Wachtel by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
127 AFFIDAVIT of Daniel L. Washington by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
128 AFFIDAVIT of Byron Gerhardt Wegner by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
129 AFFIDAVIT of Lance P. Wickner by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
130 AFFIDAVIT of Michael Herbert Williams by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
131 AFFIDAVIT of James Earl Williams by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
132 AFFIDAVIT of Henry John Wilson by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
133 AFFIDAVIT of John Wohlsdorf by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
134 AFFIDAVIT of Bradley Neil Woltjer by Kevin Scott Karsjens. (jam) QC'd on 1/11/2012 (jmf). (Entered: 01/10/2012)
135 AFFIDAVIT of Timothy Cole Yepma by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
136 AFFIDAVIT of Timothy Michael Zaudtke by Kevin Scott Karsjens. (jam) QC'd on 1/12/2012 (jmf). (Entered: 01/10/2012)
137 LETTER REFERRING Litigant to FBA Pro Se Project from Judge Donovan W. Frank. (BJS) cc: All 14 Plaintiffs. Modified on 1/13/2012 (lmb). (Entered: 01/12/2012)
138 NOTICE of Appearance by Daniel E Gustafson on behalf of All Plaintiffs. (Gustafson, Daniel) (Entered: 01/20/2012)
140 LETTER to Tiffany Sanders, FBA Pro Se Project Coordinator, from Kevin Scott Karsjens, filed by Kevin Scott Karsjens. (lmb) QC'd on 2/3/2012 (jmf). (Entered: 01/25/2012)
139 LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David LeRoy Gamble, Brian Keith Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer . (Gustafson, Daniel) (Entered: 01/25/2012)
141 *TEXT ONLY ENTRY* NOTICE of Setting Hearing: Status Conference set for 2/2/2012 02:30 PM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 01/25/2012)
142 ORDER. 1. Stay of All Cases Pending Resolution of Pending Motion for Class Certification in Civil No. 11−3659 (DWF/JSM). All current and future cases brought

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by an individual or group of individuals who has or have been civilly committed to the Minnesota Sex Offender Program are hereby STAYED in all respects, with the exception of Civil No. 11−3659 (DWF/JSM) and Civil No. 11−1704 (DWF/JJK), pending resolution of the motion for class certification inCivil No. 11−3659 (DWF/JSM), unless otherwise ordered by the Court. 2. Service. The Clerk of the United States District Court for the District of Minnesota is respectfully directed to provide a copy of this Order, via United States mail, to every unrepresented Plaintiff in all of the cases that are stayed. Signed by Chief Judge Michael J. Davis on 1/25/12.(BJS) (Entered: 01/25/2012)
143 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 2/2/2012. Next Status Conference to be held on 3/29/2012 at 2:30 p.m. (Court Reporter Jeanne Anderson) (BJS) (Entered: 02/03/2012)
144 ORDER OF DIRECTION TO THE CLERK OF COURT FOR REASSIGNMENT OF MAGISTRATE JUDGE. Case reassigned to Magistrate Judge Jeffrey J. Keyes for all further proceedings. Magistrate Judge Janie S. Mayeron no longer assigned to case. NOTE: the new case number is 11cv3659 DWF/JJK. Please use this case number for all subsequent pleadings. Signed by Judge Donovan W. Frank on 2/3/2012. (JME) (Entered: 02/06/2012)
145 AMENDED ORDER. 1.Stay of All Cases Pending Resolution of Pending Motion for ClassCertification in Civil No. 11−3659 (DWF/JJK). All current and future civil rights cases brought by an individual or group of individuals who has or have been civilly committed to the Minnesota Sex Offender Program are hereby STAYED in all respects, with the exception of Civil No. 11−3659(DWF/JJK) and Civil No. 11−1704 (DWF/JJK), pending resolution of the motion for class certification in Civil No. 11−3659 (DWF/JJK), unless otherwise ordered by the Court. 2.Service. The Clerk of the United States District Court for the District of Minnesota is respectfully directed to provide a copy of this Order, via United States mail, to every unrepresented Plaintiff in all of the cases that are stayed. (Written Opinion). Signed by Chief Judge Michael J. Davis on 2/6/12. Associated Cases: 0:11−cv−01704−DWF−JJK, 0:11−cv−03659−DWF−JJK(GRR) (Entered: 02/06/2012)
146 ORDER. 1. Case No. 11−cv−1704 (DWF/JJK) is STAYED in all respects, unless and until otherwise ordered by the Court. 2. Plaintiffs shall serve and file an amended complaint in Case No. 11−cv−3659 (DWF/JJK) on or before February 29, 2012. 3. A status conference will be held in Case No. 11−cv−3659 (DWF/JJK) on March 29, 2012 at 2:30 p.m. in Chambers 724, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota. 4. Prior to the March 29, 2012 status conference, the parties shall make a good faith effort to resolve any outstanding issues related to service of process of the amended complaint and the terms of a protective order and shall discuss resolution of the pending motions for class certification and for a temporary restraining order in Case No. 11−cv−3659 (DWF/JJK). Signed by Judge Donovan W. Frank on 2/8/2012. (BJS) (Entered: 02/08/2012)
147 STIPULATION Regarding Extension of Time to File the Amended Complaint by James Allen Barber, Elisabeth Barbo, Scott Benoit, Dennis Benson, Jim Berg, Craig Allen Bolte, Kaine Joseph Braun, Greg Carlson, Kenny S. Daywitt, Kevin John DeVillion, Jane Doe, John Doe, Bradley Wayne Foster, David LeRoy Gamble, Brian Keith Hausfeld, Lucinda Jesson, Susan Johnson, Kevin Scott Karsjens, Terry Kneisel, Peter Gerard Lonergan, Tom Lundquist, Minnesota Department of Human Services, Minnesota Sex Offender Program, Kevin Moser, James Matthew Noyer, Sr, James John Rud, Mehrdad Sabestari, Laurie Severson, Jean Seykora, Dennis Richard Steiner, Michael Tessner, Christopher John Thuringer, Ann Zimmerman. (Gustafson, Daniel) (Entered: 02/29/2012)
148 LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David LeRoy Gamble, Brian Keith Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer . (Gustafson, Daniel) (Entered: 02/29/2012)
149 ORDER (TEXT ONLY ENTRY): Pursuant to the stipulation of the parties (Doc. No. 147 ), Plaintiffs' request for an extension of the deadline to file an Amended

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Complaint (Doc. No. 148 ) is GRANTED. Plaintiffs shall file their Amended Complaint on or before March 15, 2012. Also pursuant to the stipulation of the parties, the status conference currently scheduled for March 29, 2012 is hereby CANCELLED. The status conference will be rescheduled for a date and time to be determined. Issued by Judge Donovan W. Frank on 2/29/2012. (TSS) (Entered: 02/29/2012)
150 *TEXT ONLY ENTRY* NOTICE of Rescheduling Hearing: Status Conference now set for 4/16/2012 01:00 PM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 03/05/2012)
151 AMENDED COMPLAINT against Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman, filed by James Allen Barber, David LeRoy Gamble, Kevin Scott Karsjens, Bradley Wayne Foster, Kaine Joseph Braun, Kenny S. Daywitt, James John Rud, Kevin John DeVillion, Dennis Richard Steiner, Christopher John Thuringer, Craig Allen Bolte, Peter Gerard Lonergan, James Matthew Noyer, Sr. (Attachments: # 1 Certificate of Service) (Gustafson, Daniel) (Entered: 03/15/2012)
152 *TEXT ONLY ENTRY* NOTICE to Attorneys: Preliminary Settlement Conference with Plaintiffs' counsel only set for 5/7/2012 03:30 PM in Judge's Chambers, Suite 646 (STP) before Magistrate Judge Jeffrey J. Keyes. Confidential settlement letters due in chambers 5/4/12.(JEP) (Entered: 04/16/2012)
153 *TEXT ONLY ENTRY* NOTICE to Attorney: Preliminary Settlement Conference with Defendants' counsel only set for 5/8/2012 03:30 PM in Judge's Chambers, Suite 646 (STP) before Magistrate Judge Jeffrey J. Keyes. Confidential settlement letters due in chambers 5/4/12.(JEP) (Entered: 04/16/2012)
154 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 4/16/2012. Next Status Conference to be held on 5/30/2012 at 2:00 p.m., Chambers 724, St. Paul. (Court Reporter NA) (BJS) (Entered: 04/18/2012)
155 *TEXT ONLY ENTRY* NOTICE of Setting Hearing: Status Conference set for 5/30/2012 02:00 PM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W. Frank. (BJS) (Entered: 04/18/2012)
156 NOTICE of Appearance by Max H Kieley on behalf of Dennis Benson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Kieley, Max) (Entered: 04/26/2012)
157 STIPULATION TO EXTEND TIME TO ANSWER by all parties. (Kieley, Max) Modified filers on 4/30/2012 (lmb). (Entered: 04/30/2012)
158 WAIVER OF SERVICE Returned Executed filed by James Allen Barber, David Leroy Gamble, Jr, Kevin Scott Karsjens, Bradley Wayne Foster, Kaine Joseph Braun, Kenny S. Daywitt, James John Rud, Kevin John DeVillion, Dennis Richard Steiner, Christopher John Thuringer, Craig Allen Bolte, Peter Gerard Lonergan, James Matthew Noyer, Sr. Dennis Benson waiver sent on 4/12/2012, answer due 6/11/2012; Lucinda Jesson waiver sent on 4/12/2012, answer due 6/11/2012; Tom Lundquist waiver sent on 4/12/2012, answer due 6/11/2012; Kevin Moser waiver sent on 4/12/2012, answer due 6/11/2012; Ann Zimmerman waiver sent on 4/12/2012, answer due 6/11/2012. (Gustafson, Daniel) Modified text on 4/30/2012 (lmb). (Entered: 04/30/2012)
159 CERTIFICATE OF SERVICE ON PROPOSED ORDER TO EXTEND TIME TO ANSWER by James Allen Barber, Dennis Benson, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian Keith Hausfeld, Lucinda Jesson, Kevin Scott Karsjens, Peter Gerard Lonergan, Tom Lundquist, Kevin Moser, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer, Ann Zimmerman. (Kieley, Max) Modified text on 5/1/2012 (lmb). (Entered: 05/01/2012)
160 ORDER re 157 Stipulation: IT IS HEREBY ORDERED that: 1. The parties Stipulation to Extend Time to Answer is adopted. 2. Defendants deadline to file an Answer is postponed until otherwise ordered by this Court. Signed by Magistrate Judge Jeffrey J. Keyes on 05/01/2012. (lmb) (Entered: 05/01/2012)

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161 Minute Entry: Preliminary Settlement Conference with Plaintiffs' Counsel Only for proceedings held before Magistrate Judge Jeffrey J. Keyes on 5/7/2012. No order to be issued. (Tape #n/a) (MMP) (Entered: 05/10/2012)
162 Minute Entry: Preliminary Settlement Conference with Defendants' Counsel Only held before Magistrate Judge Jeffrey J. Keyes on 5/8/2012. No order to be issued. (Tape #n/a) (MMP) (Entered: 05/10/2012)
163 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 5/30/2012. Status Conference held. Settlement Conference order to issue. Settlement conference set for June 19, 2012, at 10 a.m., Chamber 646, St. Paul, Minnesota. (Court Reporter NA) (BJS) (Entered: 05/30/2012)
164 CERTIFICATE OF SERVICE ON PROPOSED ORDER re 166 STIPULATION, by James Allen Barber, Dennis Benson, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian Keith Hausfeld, Lucinda Jesson, Kevin Scott Karsjens, Peter Gerard Lonergan, Tom Lundquist, Minnesota Department of Human Services, Minnesota Sex Offender Program, Kevin Moser, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer, Ann Zimmerman. (Kieley, Max) Modified text on 5/31/2012 (lmb). Modified text, link on 5/31/2012 (lmb). (Entered: 05/31/2012)
165 ORDER FOR SETTLEMENT CONFERENCE AND STATUS CONFERENCE: Settlement Conference set for 6/19/2012 10:00 AM in Judge's Chambers, Suite 646 (STP) before Magistrate Judge Jeffrey J. Keyes. Status Conference set for 6/19/2012 04:00 PM in Judge's Chambers, Suite 724 (STP) before Judge Donovan W. Frank. Signed by Magistrate Judge Jeffrey J. Keyes on 05/31/2012. (lmb) (Entered: 05/31/2012)
166 STIPULATION by James Allen Barber, Dennis Benson, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian Keith Hausfeld, Lucinda Jesson, Kevin Scott Karsjens, Peter Gerard Lonergan, Tom Lundquist, Minnesota Department of Human Services, Minnesota Sex Offender Program, Kevin Moser, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer, Ann Zimmerman. (Kieley, Max) Modified text on 5/31/2012 (lmb). (Entered: 05/31/2012)
167 PROTECTIVE ORDER. Signed by Magistrate Judge Jeffrey J. Keyes on 05/31/2012. (lmb) (Entered: 05/31/2012)
168 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Settlement Conference held on 6/19/2012. No settlement reached. Settlement discussions will continue. (lmb) (Entered: 06/20/2012)
169 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 6/19/2012. Counsel to contact Judge Frank chambers to schedule motion hearing. (Court Reporter NA) (BJS) (Entered: 06/20/2012)
170 LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian Keith Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer . (Gustafson, Daniel) (Entered: 06/20/2012)
171 Amended MOTION to Certify Class by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 06/28/2012)
172 NOTICE OF HEARING ON MOTION 171 Amended MOTION to Certify Class : Motion Hearing set for 7/24/2012 10:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel) (Entered: 06/28/2012)
173 MEMORANDUM in Support re 171 Amended MOTION to Certify Class filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis

06/28/2012
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Richard Steiner, Christopher John Thuringer. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 06/28/2012)
174 AFFIDAVIT of Daniel E. Gustafson in SUPPORT OF 171 Amended MOTION to Certify Class filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 Exhibit(s) A)(Gustafson, Daniel) (Entered: 06/28/2012)
175 MOTION for Temporary Restraining Order by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 06/28/2012)
176 NOTICE OF HEARING ON MOTION 175 MOTION for Temporary Restraining Order : Motion Hearing set for 7/24/2012 10:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel) (Entered: 06/28/2012)
177 MEMORANDUM in Support re 175 MOTION for Temporary Restraining Order filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 06/28/2012)
178 AFFIDAVIT of Daniel E. Gustafson in SUPPORT OF 175 MOTION for Temporary Restraining Order filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B)(Gustafson, Daniel) (Entered: 06/28/2012)
179 Minute Entry: Telephone Conference held before Magistrate Judge Jeffrey J. Keyes on 6/29/2012 re: Settlement Discussions. No Settlement reached. Settlement discussions will continue. (Court Reporter n/a and Tape #n/a) (MMP) (Entered: 06/29/2012)
180 ORDER ON APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES: Having considered the applications to proceed without prepayment of fees under 28 USC §1915,IT IS ORDERED that the applications at Doc. Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 are: GRANTED. Signed by Magistrate Judge Jeffrey J. Keyes on 07/03/2012. (MMP) (Entered: 07/03/2012)
181 ORDER/NOTICE OF SETTLEMENT Settlement Conference set for 7/20/2012 09:00 AM in Judge's Chambers 9E (MPLS) before Chief Mag. Judge Arthur J. Boylan. Signed by Chief Mag. Judge Arthur J. Boylan on 07/03/2012. (jz) (Entered: 07/03/2012)
182 *TEXT ONLY ENTRY* NOTICE to Attorneys: On or before Wednesday, July 11, 2012, Plaintiffs' counsel shall submit a letter to Defendants indicating Plaintiffs' specific settlement proposal regarding less restrictive alternatives and conditions of confinement and their counter−proposal regarding treatment issues. On or before Tuesday, July 17, 2012, Defendants shall disclose who will be attending the July 20, 2012 Settlement Conference on Defendants' behalf. (dmm) (Entered: 07/05/2012)
183 MOTION in opposition to Plaintiffs' motion for class certification. (Attachments: # 1 Cover Letter, # 2 Affidavit of Service)(jam) Document QCd on 7/11/12. (RMS) (Entered: 07/10/2012)
184 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification Pursuant to Fed.R.Civ.P. 23(b)(2) by Raymond L. Semler. (Attachments: # 1 Cover Letter, # 2 Affidavit of Service). (lmb) Document QCd on 7/12/12. (RLR) Modified on 7/12/2012 (RLR). (Entered: 07/11/2012)
185 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiffs' Motion for Class Certification. (Attachments: # 1 Cover Letter, # 2 Affidavit of Service). (lmb)

07/11/2012 07/11/2012 07/11/2012 07/11/2012 07/11/2012 07/11/2012 07/13/2012 07/13/2012 07/13/2012 07/13/2012 07/13/2012 07/17/2012
07/17/2012
07/17/2012

Document QCd on 7/12/12. (RMS) (Entered: 07/11/2012)
186 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiffs' Motion for Class Certification, filed by M.D. Benson. (Attachments: # 1 Cover Letter, # 2 Affidavit of Service). (lmb) Document QCd on 7/12/12. (RMS) (Entered: 07/11/2012)
187 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification, filed by Terrance J. Friend. (Attachments: # 1 Cover Letter, # 2 Affidavit of Service). (lmb) Document QCd on 7/12/12. (RMS) (Entered: 07/11/2012)
188 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification, filed by James D. Fries. (Attachments: # 1 Cover Letter, # 2 Affidavit of Service). (lmb) Document QCd on 7/12/12. (RMS) (Entered: 07/11/2012)
189 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification, filed by Hollis J. Larson. (Attachments: # 1 Cover Letter, # 2 Affidavit of Service). (lmb) Document QCd on 7/12/12. (RMS) (Entered: 07/11/2012)
190 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification filed by Dennis D. Linehan. (Attachments: # 1 Cover Letter, # 2 Affidavit of Service). (lmb) Document QCd on 7/12/12. (RMS) (Entered: 07/11/2012)
191 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification, filed by Michael Pittman. (Attachments: # 1 Cover Letter, # 2 Affidavit of Service). (lmb) Document QCd on 7/12/12. (RMS) (Entered: 07/11/2012)
192 MEMORANDUM in Opposition re 183 MOTION in opposition to Plaintiffs' motion for class certification, filed by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 07/13/2012)
193 AFFIDAVIT of Jessica J. Geil with attached Exhibits A−D re 192 Memorandum in Opposition to Motion for Class Certification by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) Modified on 7/16/2012 (akl). (Entered: 07/13/2012)
194 MEMORANDUM in Opposition re 175 MOTION for Temporary Restraining Order filed by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Kieley, Max) (Entered: 07/13/2012)
195 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification. (Attachments: # 1 Cover Letter, # 2 Affidavit of Service, # 3 Envelope)(jam) Document QCd on 7/16/12. (RMS) (Entered: 07/13/2012)
196 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification. (Attachments: # 1 Cover Letter, # 2 Cover Letter, # 3 Affidavit of Service, # 4 Envelope)(jam) Document QCd on 7/16/12. (RMS) (Entered: 07/16/2012)
197 REPLY to Response to Motion re 175 MOTION for Temporary Restraining Order filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 07/17/2012)
198 Second AFFIDAVIT of Daniel E. Gustafson in SUPPORT OF 175 MOTION for Temporary Restraining Order filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 Exhibit(s) A)(Gustafson, Daniel) (Entered: 07/17/2012)
199 REPLY to Response to Motion re 171 Amended MOTION to Certify Class filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis

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Richard Steiner, Christopher John Thuringer. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 07/17/2012)
200 Second AFFIDAVIT of Daniel E. Gustafson in SUPPORT OF 171 Amended MOTION to Certify Class filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud. (Attachments: # 1 Exhibit(s) A)(Gustafson, Daniel) (Entered: 07/17/2012)
201 Minute Entry for proceedings held before Chief Judge Arthur J. Boylan: Settlement Conference held on 7/20/2012. No settlement reached. Settlement discussions will continue. (kt) Modified on 7/23/2012 (kt). (Entered: 07/23/2012)
202 ORDER/NOTICE of Settlement Conference set for 8/22/2012 09:00 AM in Judge's Chambers 9E (MPLS) before Magistrate Judge Arthur J. Boylan. Signed by Chief Mag. Judge Arthur J. Boylan on 7/23/12. (kt) Modified on 7/23/2012 (kt). (Entered: 07/23/2012)
203 ORDER CERTIFYING CLASS PURSUANT TO FEDERAL RULE 23(b)(2). This case is certified as a class action under Federal Rule of Civil Procedure 23(b)(2). The Class consists of the following: All patients currently civilly committed in the Minnesota Sex Offender Program pursuant to Minn. Stat. § 253B. Gustafson Gluek PLLC shall serve as Class Counsel, and the above−named Plaintiffs shall serve as Class Representatives. (Written Opinion). Signed by Judge Donovan W. Frank on 7/24/2012. (BJS) (Entered: 07/24/2012)
204 STIPULATION re 175 MOTION for Temporary Restraining Order by James Allen Barber, Dennis Benson, Craig Allen Bolte, Kaine Joseph Braun, Greg Carlson, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Lucinda Jesson, Kevin Scott Karsjens, Peter Gerard Lonergan, Tom Lundquist, Kevin Moser, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer, Ann Zimmerman. (Gustafson, Daniel) (Entered: 07/24/2012)
206 Minute Entry for proceedings held before Judge Donovan W. Frank: Motion Hearing held on 7/24/2012 re 171 Amended MOTION to Certify Class filed by Bradley Wayne Foster, David Leroy Gamble, Jr., Craig Allen Bolte, Kaine Joseph Braun, Dennis Richard Steiner, James John Rud, Kenny S. Daywitt, Kevin John DeVillion, James Allen Barber, James Matthew Noyer, Sr., Christopher John Thuringer, Peter Gerard Lonergan, Kevin Scott Karsjens, 188 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification, 187 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification, 185 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiffs' Motion for Class Certification, 183 MOTION in opposition to Plaintiffs' motion for class certification,, 175 MOTION for Temporary Restraining Order filed by Bradley Wayne Foster, David Leroy Gamble, Jr., Craig Allen Bolte, Kaine Joseph Braun, Dennis Richard Steiner, James John Rud, Kenny S. Daywitt, Kevin John DeVillion, James Allen Barber, Christopher John Thuringer, James Matthew Noyer, Sr., Kevin Scott Karsjens, Peter Gerard Lonergan, 189 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification, 186 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiffs' Motion for Class Certification, 196 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification,, 24 MOTION for Class Certification Pursuant to Rule 23 filed by Kevin Scott Karsjens, 190 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification, 191 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification, 195 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification,, 184 MOTION Unnamed Plaintiff's Motion in Opposition to Plaintiff's Motion for Class Certification Pursuant to Fed.R.Civ.P. 23(b)(2). Written orders to issue. (Court Reporter Jeanne Anderson) (BJS) (Entered: 07/27/2012)
205 ORDER. 1. Plaintiffs' Application for Temporary Restraining Order/Preliminary (Doc. No. 16 ) is DENIED as follows: a. To the extent the motion seeks relief with respect to legal storage space and searches, the motion is DENIED AS MOOT. b. In all other respects, the motion is DENIED. 2. Plaintiffs' Motion for Appointment of

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Counsel (Doc. No. 23 ) is DENIED AS MOOT. 3. Plaintiffs' Motion for Temporary Restraining Order (Doc. No. 175 ) is DENIED AS MOOT. 4. Unnamed Plaintiffs' Motions in Opposition to Plaintiffs' Motion for Class Certification (Doc. Nos. [183−91], [195−96]) are DENIED. (Written Opinion). Signed by Judge Donovan W. Frank on 7/26/2012. (BJS) (Entered: 07/26/2012)
207 MOTION to Intervene. (Attachments: # 1 Complaint, # 2 Cover Letter, # 3 Affidavit of Service)(jam) Document QCd on 8/8/12. (RLR) (Entered: 08/06/2012)
208 ORDER: 1. The Minnesota Commissioner of Human Services (Commissioner) shall create an advisory task force hereinafter referred to as the "Sex Offender Civil Commitment Advisory Task Force" (Task Force) that shall consist of up to 15 members and will expire two years from the date of appointment of the first member; 2. The Task Force shall examine and provide recommended legislative proposals to the Commissioner on the following topics: A. The civil commitment and referral process for sex offenders; B. Sex offender civil commitment options that are less restrictive than placement in a secure treatment facility; and C. The standards and processes for the reduction in custody for civilly committed sex offenders. 3. The Commissioner shall strive to appoint individuals to the Task Force that have knowledge of the sex offender civil commitment process and the Minnesota Sex Offender Program; including, to the extent possible: A. Current and former state legislators B. Active or retired Minnesota County Attorneys C. Active or retired Minnesota State Court judges D. Active or retired Minnesota law enforcement personnel E. Attorneys licensed in the State of Minnesota that represent or have represented patients or sex offenders F. The Minnesota Ombudsman for mental health G. Victim advocates H. Sex offender treatment professionals I. Minnesota Department of Corrections J. Minnesota County Commissioners K. Minnesota County Adult Social Services L. Academic Professionals 4. The Task Force shall provide the Commissioner with recommendations on less restrictive alternatives to placement in secure treatment facilities and the Task Force shall provide to the Commissioner a schedule setting forth its work on each of the remaining topics and any other topics it deems necessary to adequately address the area of sex offender civil commitment by December 3, 2012. The schedule shall specify the date(s) by which the task force will deliver further recommended legislative reforms to the Commissioner. 5. The formation of this Task Force shall not affect or impair the rights of the parties with respect to further settlement discussions or litigation in this matter. Signed by Chief Mag. Judge Arthur J. Boylan on 08/15/2012. (MMP) cc: Hollis J. Larson on 8/15/2012 (MMP). (Entered: 08/15/2012)
209 *TEXT ONLY ENTRY* NOTICE to Attorneys: The LOCATION of the Settlement Conference on August 22, 2012, has been changed. The Settlement Conference will commence at 9:00 a.m. on August 22, 2012, in the Devitt Courtroom of the St. Paul Courthouse (1st Floor). (kat) cc: NEF to Hollis J. Larson. Modified on 8/21/2012 (lmb). (Entered: 08/20/2012)
210 ORDER SETTING A DATE FOR DEFENDANTS TO ANSWER THE AMENDED COMPLAINT OR FILE A MOTION TO DISMISS AND SETTING A HEARING DATE FOR A MOTION TO DISMISS. Pursuant to the Order of this Court entered on May 1, 2012, adopting the parties' Stipulation to Extend Time to Answer and postponing Defendants' deadline to file an Answer until a date ordered by the Court, the Court now orders the Defendants to file an Answer or a Motion to Dismiss the Amended Complaint on or before September 21, 2012. A hearing on a Motion to Dismiss the Amended Complaint, if filed, is set for November 29, 2012, at 10:00 a.m. in Courtroom 7C, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, MN 55101 before the Honorable Judge Donovan W. Frank. Signed by Judge Donovan W. Frank on 8/20/2012. (BJS) cc: Hollis J. Larson. Modified on 8/21/2012 (lmb). (Entered: 08/21/2012)
211 Minute Entry for proceedings held before Chief Mag. Judge Arthur J. Boylan: Settlement Conference held on 8/22/2012. No settlement reached. Settlement discussions will continue. (jz) (Entered: 08/22/2012)
212 ORDER/NOTICE OF SETTLEMENT CONFERENCE Settlement Conference set for 10/10/2012 09:30 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. Signed by Chief Mag. Judge Arthur J. Boylan on 08/22/2012. (jz) (cc: Hollis J. Larson) Modified on 8/22/2012 (jz). (Entered: 08/22/2012)

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213 PRETRIAL SCHEDULING ORDER Amended Pleadings due by 1/15/2013. Discovery due by 11/1/2013. Motions (non−disp) due 11/15/2013. Motions (disp) due by 1/15/2014. Ready for trial due by 7/1/2014. Signed by Chief Mag. Judge Arthur J. Boylan on 08/22/2012. (jz) (cc: Hollis J. Larson) Modified on 8/22/2012 (jz). (Entered: 08/22/2012)
214 MEMORANDUM in Opposition re 207 MOTION to Intervene filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate, # 2 Certificate of Service)(Gustafson, Daniel) (Entered: 08/27/2012)
215 COPY of LETTER from Kevin S. Karsjens to Gustafson Gluek PLLC. (jz) Document QCd on 9/5/2012. (rms) (Entered: 08/29/2012)
216 MEMORANDUM in Opposition re 207 MOTION to Intervene filed by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Alpert, Steven) (Entered: 08/30/2012)
217 CERTIFICATE OF SERVICE by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman re 216 Memorandum in Opposition to Motion (Alpert, Steven) Modified on 8/31/2012 (akl). (Entered: 08/30/2012)
218 MOTION FOR AND MEMORANDUM IN SUPPORT OF A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION by Hollis J. Larson. (Attachments: # 1 Affidavit of Service)(jz) (Additional attachment(s) added on 8/30/2012: # 2 Cover Letter) (jz). Document QCd on 9/13/2012. (rms) (Entered: 08/30/2012)
219 LETTER TO MAGISTRATE JUDGE by Dennis Richard Steiner. (jam) Document QCd on 9/12/2012. (rms) (Entered: 09/04/2012)
220 Plaintiffs' MOTION to create sub−class pursuant to Federal Rules of Civ. P. Rule 23(C)(5). (jam) Modified on 9/11/2012 (jam). Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
221 EXHIBITS re 220 MOTION to create sub−class pursuant to Federal Rules of Civ. P. Rule 23(C)(5). (jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
222 Plaintiffs' MOTION for Temporary Restraining Order. (jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
223 NOTICE OF HEARING ON MOTION 222 MOTION for Temporary Restraining Order : Motion Hearing set for 10/18/2012 10:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
224 MEMORANDUM in Support re 222 MOTION for Temporary Restraining Order. (jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
225 EXHIBIT. (jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
226 AFFIDAVIT of Alvin Lamm in SUPPORT OF 220 MOTION to create sub−class pursuant to Federal Rules of Civ. P. Rule 23(C)(5). (Attachments: # 1 Exhibit(s))(jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
227 AFFIDAVIT of Terrance J. Friend in SUPPORT OF 220 MOTION to create sub−class pursuant to Federal Rules of Civ. P. Rule 23(C)(5). (Attachments: # 1 Exhibit(s))(jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
228 AFFIDAVIT of Guy I. Greene in SUPPORT OF 220 MOTION to create sub−class pursuant to Federal Rules of Civ. P. Rule 23(C)(5). (jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
229 AFFIDAVIT of Hayden Richards in SUPPORT OF 220 MOTION to create sub−class pursuant to Federal Rules of Civ. P. Rule 23(C)(5). (jam) Document QCd on

09/07/2012 09/07/2012 09/07/2012 09/07/2012 09/07/2012 09/07/2012 09/07/2012 09/18/2012
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09/21/2012 09/21/2012
09/21/2012
09/21/2012

9/13/2012. (rms) (Entered: 09/11/2012)
230 AFFIDAVIT of Joseph Thompson in SUPPORT OF 220 MOTION to create sub−class pursuant to Federal Rules of Civ. P. Rule 23(C)(5). (jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
231 AFFIDAVIT of Peter Allan Sr. in SUPPORT OF 220 MOTION to create sub−class pursuant to Federal Rules of Civ. P. Rule 23(C)(5). (jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
232 AFFIDAVIT of Guy I. Greene in SUPPORT OF 222 MOTION for Temporary Restraining Order. (jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
233 AFFIDAVIT of Dennis D. Linehan in SUPPORT OF 220 MOTION to create sub−class pursuant to Federal Rules of Civ. P. Rule 23(C)(5). (jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
234 AFFIDAVIT of Joseph Thompson in SUPPORT OF 222 MOTION for Temporary Restraining Order. (jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
235 LETTER from Joseph Thompson to Daniel E. Gustafson in re: Motion for Subclass. (jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
236 AFFIDAVIT of Service (Attachments: # 1 Affidavit of Service, # 2 Cover Letter)(jam) Document QCd on 9/13/2012. (rms) (Entered: 09/11/2012)
237 ORDER. 1. Any future letters, motions, or other submissions on the behalf of class members shall be filed through Class Counsel. To be clear, individual class members or groups of class members shall not file any further pro se motions unless granted permission by the Court; and 2. If individual class members or groups of class members send letters, motions, or other submissions to Chambers or to the Clerks Office for filing in violation of this Order, the Clerk of Court is directed to return such letter, motion, or submission to the sender along with a copy of this Order. Signed by Judge Donovan W. Frank on 9/18/2012. (BJS) (cc: Hollis J. Larson) Modified on 9/19/2012 (akl). (Entered: 09/18/2012)
238 LETTER TO MAGISTRATE JUDGE filed by Raymond David Irwin. (lmb) Document QC'd on 9/26/2012. (rms) (Entered: 09/20/2012)
239 MOTION for Payment of Fees and Costs by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 09/21/2012)
240 NOTICE OF HEARING ON MOTION 239 MOTION for Payment of Fees and Costs : Motion Hearing set for 11/29/2012 10:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel) (Entered: 09/21/2012)
241 MEMORANDUM in Support re 239 MOTION for Payment of Fees and Costs filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 09/21/2012)
242 AFFIDAVIT of Daniel E. Gustafson in SUPPORT OF 239 MOTION for Payment of Fees and Costs filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 Exhibit(s) A)(Gustafson, Daniel) (Entered: 09/21/2012)
243 MOTION to Dismiss/General Defendants' Motion to Dismiss Plaintiff's Amended Complaint by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 09/21/2012)

09/21/2012 09/21/2012 09/21/2012 09/21/2012 09/25/2012 10/04/2012
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244 NOTICE OF HEARING ON MOTION 243 MOTION to Dismiss/General Defendants' Motion to Dismiss Plaintiff's Amended Complaint : Motion Hearing set for 11/29/2012 10:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Figueroa, Ricardo) (Entered: 09/21/2012)
245 MEMORANDUM in Support re 243 MOTION to Dismiss/General Defendants' Motion to Dismiss Plaintiff's Amended Complaint filed by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Figueroa, Ricardo) (Entered: 09/21/2012)
246 AFFIDAVIT of Ricardo Figueroa in SUPPORT OF 243 MOTION to Dismiss/General Defendants' Motion to Dismiss Plaintiff's Amended Complaint filed by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) 1−10, # 2 Exhibit(s) 11−16, # 3 Exhibit(s) 17−36)(Figueroa, Ricardo) (Entered: 09/21/2012)
247 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman re 243 MOTION to Dismiss/General Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Figueroa, Ricardo) (Entered: 09/21/2012)
248 Minute Entry for proceedings held before Chief Magistrate Judge Arthur J. Boylan: Telephonic Status Conference held on 9/25/2012. (JMH) (Entered: 09/25/2012)
249 MEMORANDUM in Opposition re 220 MOTION to create sub−class pursuant to Federal Rules of Civ. P. Rule 23(C)(5) filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate, # 2 Certificate of Service)(Gustafson, Daniel) (Entered: 10/04/2012)
250 ORDER REGARDING SEX OFFENDER CIVIL COMMITMENT ADVISORY TASK FORCE. Signed by Chief Mag. Judge Arthur J. Boylan on 10/05/12. (TSS) (Entered: 10/05/2012)
251 ORDER REGARDING ADDITIONAL EX−OFFICIO MEMBER TO THE SEX OFFENDER CIVIL COMMITMENT ADVISORY TASK FORCE. Signed by Judge Donovan W. Frank on 10/05/2012. (TSS) (Entered: 10/05/2012)
252 Minute Entry: Settlement Conference proceedings held before Magistrate Judge Jeffrey J. Keyes on 10/10/2012. No settlement reached. Settlement discussions will continue. (Tape #n/a) (MMP) (Entered: 10/11/2012)
253 ORDER REGARDING ADDITIONAL EX−OFFICIO MEMBER TO THE SEX OFFENDER CIVIL COMMITMENT ADVISORY TASK FORCE: The Court HEREBY ORDERS the following additional individual as a member Ex−Officio to the Task Force as designated by the Commissioner: 1. The Honorable Fred T. Friedman, Chief Public Defender, Sixth Judicial District, Duluth, Minnesota. Signed by Chief Mag. Judge Arthur J. Boylan on 10/11/2012. (lmb) cc: Hollis J. Larson. Modified on 10/11/2012 (lmb). (Entered: 10/11/2012)
254 MEMORANDUM in Opposition re 222 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Figueroa, Ricardo) (Entered: 10/15/2012)
255 AFFIDAVIT of Ricardo Figueroa in OPPOSITION TO 222 MOTION for Temporary Restraining Order filed by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 10/15/2012)
256 AFFIDAVIT of Bonnie Wold in OPPOSITION TO 222 MOTION for Temporary Restraining Order filed by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 10/15/2012)

10/15/2012 10/15/2012 10/15/2012 10/15/2012 10/16/2012 10/17/2012 10/19/2012 10/19/2012 10/19/2012
10/31/2012
11/01/2012 11/02/2012

257 AFFIDAVIT of Ann Zimmerman in OPPOSITION TO 222 MOTION for Temporary Restraining Order filed by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 10/15/2012)
258 AFFIDAVIT of Service by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman re 254 Memorandum in Opposition to Motion, 256 Affidavit in Opposition to Motion, 257 Affidavit in Opposition to Motion, 255 Affidavit in Opposition to Motion (Figueroa, Ricardo) (Entered: 10/15/2012)
259 MEMORANDUM in Opposition re 220 MOTION to create sub−class pursuant to Federal Rules of Civ. P. Rule 23(C)(5) filed by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Alpert, Steven) (Entered: 10/15/2012)
260 CERTIFICATE OF SERVICE by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman re 259 Memorandum in Opposition to Motion, (Alpert, Steven) (Entered: 10/15/2012)
261 AFFIDAVIT of Peter Allan Sr in SUPPORT OF 220 MOTION to create sub−class pursuant to Federal Rules of Civ. P. Rule 23(C)(5) (Attachments: # 1 Cover Letter)(MMP) Document QC'd on 11/21/2012. (rms) (Entered: 10/16/2012)
262 Minute Entry: Telephone Conference held before Magistrate Judge Jeffrey J. Keyes on 10/17/2012. Phone conference with Defendants' counsel regarding settlement. Settlement discussions will continue. (Court Reporter n/a and Tape #n/a) (MMP) (Entered: 10/17/2012)
263 MEMORANDUM in Opposition re 239 MOTION for Payment of Fees and Costs filed by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Figueroa, Ricardo) (Entered: 10/19/2012)
264 ORDER/NOTICE OF SETTLEMENT CONFERENCE: Settlement Conference set for 11/5/2012 08:30 AM in Judge's Chambers, Suite 646 (STP) before Magistrate Judge Jeffrey J. Keyes. Signed by Magistrate Judge Jeffrey J. Keyes on 10/19/2012. (MMP) CC: Hollis J. Larson on 10/19/2012 (MMP). (Entered: 10/19/2012)
265 MEMORANDUM in Opposition re 243 MOTION to Dismiss/General Defendants' Motion to Dismiss Plaintiff's Amended Complaint filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 10/19/2012)
266 ORDER REGARDING ADDITIONAL EX−OFFICIO MEMBER TO THE SEX OFFENDER CIVIL COMMITMENT ADVISORY TASK FORCE: The Court HEREBY ORDERS the following additional individual as a member Ex−Officio to the Task Force as designated by the Commissioner: 1. John Harrington, Chief, Metro Transit Police Department. Signed by Chief Mag. Judge Arthur J. Boylan on 10/31/2012. (lmb) cc: Hollis J. Larson. Modified on 10/31/2012 (lmb). (Entered: 10/31/2012)
267 MEMORANDUM in Support re 243 MOTION to Dismiss/General Defendants' Motion to Dismiss Plaintiff's Amended Complaint filed by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Figueroa, Ricardo) (Entered: 11/01/2012)
268 REPLY re 239 MOTION for Payment of Fees and Costs filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 11/02/2012)

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269 MEMORANDUM in Opposition re 222 MOTION for Temporary Restraining Order and Preliminary Injunction filed by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Figueroa, Ricardo) (Entered: 11/02/2012)
270 AFFIDAVIT of Dr. David Paulson re 269 Memorandum in Opposition to Motion, for a Temporary Restraining Order and Preliminary Injunction by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 11/02/2012)
271 AFFIDAVIT of Ricardo Figueroa re 269 Memorandum in Opposition to Motion, for a Temporary Restraining Order and Preliminary Injunction by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 11/02/2012)
272 CERTIFICATE OF SERVICE by Dennis Benson, Greg Carlson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman re 269 Memorandum in Opposition to Motion, 270 Affidavit, 271 Affidavit. (Figueroa, Ricardo) Modified on 11/2/2012 (RLR). (Entered: 11/02/2012)
273 Minute Entry: Settlement Conference with all counsel held before Magistrate Judge Jeffrey J. Keyes on 11/5/2012. No settlement reached. Settlement discussions will continue. (Court Reporter n/a and Tape #n/a) (MMP) (Entered: 11/06/2012)
274 ORDER OF SETTLEMENT CONFERENCE: Settlement Conference set for 12/3/2012 08:30 AM in Judge's Chambers, Suite 646 (STP) before Magistrate Judge Jeffrey J. Keyes. Signed by Magistrate Judge Jeffrey J. Keyes on 11/06/2012. (MMP) cc: Hollis J. Larson on 11/6/2012 (MMP). (Entered: 11/06/2012)
275 ORDER that: Accordingly, IT IS HEREBY ORDERED that: 1. The Minnesota Commissioner of Human Services ("Commissioner") shall create an evaluation team, hereinafter referred to as the "MSOP Program Evaluation Team" ("Evaluation Team"), consisting of five qualified sex offender clinical treatment professionals with the necessary knowledge and experience to evaluate sex offender treatment in a secure facility to be appointed by the Commissioner and subject to Court approval. The Evaluation Team shall include the three sex offender treatment experts contracted to perform the annual evaluation described in Minnesota Statutes, section 246B.03, subdivision 2. The parties shall meet and confer on the potential candidates for the final two Evaluation Team positions prior to final appointment by the Commissioner. 2. The Commissioner shall forward to the Court the names of those professionals appointed by the Commissioner to the Evaluation Team for approval no later than December 1, 2012. 3. The focus of the Evaluation Team is to address possible program issues associated with client treatment phase progression ("phase progression"). The Evaluation Team shall 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. The records reviewed shall include a random sampling of the records of at least 10% or 15 clients, whichever is higher, to a maximum of 25% of those clients identified above (at the discretion of the Evaluation Team). The Evaluation Team's review is to supplement the annual program evaluation described in Minnesota Statutes, section 246B.03, subdivision 2. 4. As part of the Evaluation Team's investigation of phase progression, it may consider any topic it deems related to phase progression, such as: adequacy of staffing levels and staff training; the type and amount of treatment offered; individual treatment record documentation; individual treatment plan documentation; the accuracy of client placement and progression within each treatment phase; therapeutic environment, etc. 5. No later than April 15, 2013, the Evaluation Team shall prepare and provide the MSOP Executive Director, the Court, and counsel for the parties in this litigation, with Findings and Recommendations on phase progression. The Evaluation Team shall also determine and include in its report a recommendation on the need, scope, and frequency of any future MSOP treatment program evaluation. These Findings and Recommendations on phase progression may be in addition to and reported separately from the annual program evaluation described in Minnesota Statutes, section 246B.03, subdivision 2. 6. The Executive Director shall respond in writing to the Evaluation Team's phase progression Findings and Recommendations within thirty (30) days of receiving the Findings and Recommendations and provide that written response to the Commissioner, the Court, and counsel for the parties. The Findings

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and Recommendations and the Executive Director's written responses shall also be made public. The Executive Director shall include a copy of the phase progression Findings and Recommendations, along with the Executive Directors written responses, to the Minnesota Legislature as part of MSOP's annual performance report submitted in January 2014 (see Minn. Stat. § 246B.035). 7. If at any time the Evaluation Team discovers in its review of files for phase progression an actual or possible violation of law, rule, or regulation, it shall immediately notify the Commissioner or the Chief Compliance Officer of the Minnesota Department of Human Services, the Court, and counsel for the parties. 8. The formation of the Evaluation Team shall not affect or impair the rights of the parties with respect to further settlement discussions or litigation in this matter. 9. In view of the formation of this Evaluation Team and continuing settlement discussions among the parties, all discovery in this matter shall be stayed for a period of sixty (60) days from the date of this Order. Signed by Magistrate Judge Jeffrey J. Keyes on 11/09/2012. (MMP) CC: Hollis J. Larson on 11/9/2012 (MMP). (Entered: 11/09/2012)
276 LETTER TO DISTRICT JUDGE by James Allen Barber, Dennis Benson, Craig Allen Bolte, Kaine Joseph Braun, Greg Carlson, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Lucinda Jesson, Kevin Scott Karsjens, Peter Gerard Lonergan, Tom Lundquist, Kevin Moser, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer, Ann Zimmerman . (Figueroa, Ricardo) (Entered: 11/20/2012)
277 *TEXT ONLY ENTRY* NOTICE of Cancelation of Hearing: 240 NOTICE OF HEARING ON MOTION 239 MOTION for Payment of Fees and Costs : Motion Hearing set for 11/29/2012 10:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel), 244 NOTICE OF HEARING ON MOTION 243 MOTION to Dismiss/General Defendants' Motion to Dismiss Plaintiff's Amended Complaint : Motion Hearing set for 11/29/2012 10:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Figueroa, Ricardo). The motions at 239 and 243 have been termed and the hearing scheduled for November 29, 2012, has been canceled per joint letter from Counsel filed at Doc. No. 276 . (BJS) (cc: Hollis J. Larson) Modified on 11/26/2012 (akl). (Entered: 11/26/2012)
278 Minute Entry: Settlement Conference held before Magistrate Judge Jeffrey J. Keyeson 12/3/2012. No Settlement reached. Settlement discussions will continue. (Court Reporter n/a) (MMP) (Entered: 12/04/2012)
279 ORDER/NOTICE OF SETTLEMENT CONFERENCE: Settlement Conference set for 1/15/2013 09:30 AM in Judge's Chambers, Suite 646 (STP) before Magistrate Judge Jeffrey J. Keyes. Signed by Magistrate Judge Jeffrey J. Keyes on 12/04/2012. (MMP) cc; Hollis J. Larson on 12/4/2012 (MMP). (Entered: 12/04/2012)
280 ORDER.1. Hollis J. Larson's Motion to Intervene or to Consolidate (Doc. No. 207 ) is DENIED. 2. Hollis J. Larson's Motion for a Temporary Restraining Order and Preliminary Injunction (Doc. No. 218 ) is DENIED. 3. Unnamed Plaintiffs' Motion to Create Sub−Class (Doc. No. 220 ) is DENIED. 4. Unnamed Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction (Doc. No. 222 ) is DENIED. (Written Opinion). Signed by Judge Donovan W. Frank on 12/4/2012. (BJS)(cc: Hollis J. Larson) Modified on 12/5/2012 (akl). (Entered: 12/05/2012)
281 ORDER REGARDING THE MSOP PROGRAM EVALUATION TEAM: SEE ORDER FOR DETAILS. Signed by Magistrate Judge Jeffrey J. Keyes on 12/13/2012. (MMP) (Entered: 12/13/2012)
282 *TEXT ONLY ENTRY* NOTICE of Resetting of TIME ONLY for Settlement Conference: 279 ORDER/NOTICE OF SETTLEMENT CONFERENCE: Settlement Conference set for 1/15/2013 09:30 AM reset for 1/15/2013 10:00 AM in Judge's Chambers, Suite 646 (STP) before Magistrate Judge Jeffrey J. Keyes. This is a time change only.(JEP) (Entered: 01/09/2013)
283 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Settlement Conference held on 1/15/2013. No settlement reached. Settlement discussions will continue. (jam) (Entered: 01/15/2013)
284 ORDER/NOTICE: A settlement conference on the topic of conditions of confinement will be held on February 14 and 15, 2013, starting at 9:30 a.m. each day, at the

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07/29/2013

Minnesota Sex Offender Program Moose Lake, 1111 Highway 73, Moose Lake, Minnesota, before United States Magistrate Judge Jeffrey J. Keyes. Signed by Magistrate Judge Jeffrey J. Keyes on 1/15/13. (jam) (Entered: 01/16/2013)
285 ORDER: all discovery in this matter shall be stayed for a period of sixty (60) days from the date of this Order. Signed by Magistrate Judge Jeffrey J. Keyes on 01/24/2013. (MMP) (Entered: 01/24/2013)
286 Minute Entry: Settlement Conference with all counsel held before Magistrate Judge Jeffrey J. Keyes on 2/14/2013. No settlement reached. Settlement discussions will continue. (Tape #n/a) (MMP) (Entered: 02/19/2013)
287 Minute Entry: Settlement Conference held with all counsel before Magistrate Judge Jeffrey J. Keyes on 2/15/2013. No settlement reached. Settlement discussions will continue. (Court Reporter n/a and Tape #n/a) (MMP) (Entered: 02/19/2013)
288 DOCUMENT FILED IN ERROR. Modified on 2/22/2013 (TSS). (Entered: 02/21/2013)
289 Minute Entry: Telephone Conference on held before Magistrate Judge Jeffrey J. Keyes on 2/26/2013. Re: Settlement Issues. Settlement discussions will continue. (Court Reporter n/a and Tape #n/a) (MMP) (Entered: 02/26/2013)
290 ORDER: IT IS HEREBY ORDERED that: SEE ORDER FOR DETAILS. Signed by Magistrate Judge Jeffrey J. Keyes on 02/26/2013. (MMP) (Entered: 02/26/2013)
291 ORDER The Committee roster, first established by Court Order on February 26, 2013 (Doc. No. 290 ), is amended to consist of the following individuals: Dan Gustafson or David Goodwin, Steve Alpert or Ricardo Figueroa, Nancy Johnston, Anne Barry, Jannine Hbert and/or Kevin Moser, Kevin Karsjens, Benjamin Alverson, Corey Michaels, Dennis Steiner. Signed by Magistrate Judge Jeffrey J. Keyes on 3/20/13. (GMW) (Entered: 03/20/2013)
292 ORDER that 1. All discovery in this matter is hereby stayed for a period of ninty days from the date of this order; and 2. The Court may amend its Order staying discovery depending on the status of settlement discussions. Signed by Magistrate Judge Jeffrey J. Keyes on 3/22/13. (kt) (Entered: 03/22/2013)
293 ORDER/NOTICE of Settlement Conference set for 5/16/2013 10:30 AM in Judge's Chambers, Suite 646 (STP) before Magistrate Judge Jeffrey J. Keyes. Signed by Magistrate Judge Jeffrey J. Keyes on 4/9/13. (kt) (Entered: 04/09/2013)
294 LETTER TO MAGISTRATE JUDGE by Lucinda Jesson, Kevin Moser, Dennis Benson, Tom Lundquist, Ann Zimmerman, Greg Carlson. (Attachments: # 1 Exhibit(s) No. 1, # 2 Exhibit(s) No. 2, # 3 Exhibit(s) No. 3, # 4 Exhibit(s) No. 4)(Alpert, Steven) Modified on 4/29/2013 (kt). (Entered: 04/26/2013)
295 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Settlement Conference held on 5/16/2013. No settlement reached. Settlement discussions will continue. (kt) (Entered: 05/17/2013)
296 NOTICE OF Status Conference set for 6/13/2013 09:30 AM in Judge's Chambers, Suite 646 (STP) before Magistrate Judge Jeffrey J. Keyes. Signed by Magistrate Judge Jeffrey J. Keyes on 6/12/13. (kt) (Entered: 06/12/2013)
297 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Status Conference held on 6/13/2013. (kt) (Entered: 06/13/2013)
298 ORDER. Signed by Magistrate Judge Jeffrey J. Keyes on 6/20/13. (kt) (Entered: 06/20/2013)
299 NOTICE OF SETTLEMENT CONFERENCE/ORDER Settlement Conference set for 7/29/2013 02:30 PM in Judge's Chambers, Suite 646 (STP) before Magistrate Judge Jeffrey J. Keyes. Signed by Magistrate Judge Jeffrey J. Keyes on 7/18/13. (GMW) (Entered: 07/18/2013)
300 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Settlement Conference held on 7/29/2013. No settlement reached. Settlement discussions will continue. (kt) (Entered: 07/30/2013)

08/08/2013
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08/22/2013

301 AMENDED COMPLAINT (Second Amended Complaint) against Dennis Benson, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman, Nancy Johnston, Jannine Hebert. Filed by James Allen Barber, David Leroy Gamble, Jr, Kevin Scott Karsjens, Bradley Wayne Foster, Kaine Joseph Braun, Brian Keith Hausfeld, Kenny S. Daywitt, James John Rud, Kevin John DeVillion, Dennis Richard Steiner, Christopher John Thuringer, Craig Allen Bolte, Peter Gerard Lonergan, James Matthew Noyer, Sr. No summons requested. (Gustafson, Daniel) (Entered: 08/08/2013)
303 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Settlement Conference held on 8/14/2013. No settlement reached. Settlement discussions will continue. (kt) (Entered: 08/21/2013)
302 NOTICE of Withdrawal as Attorney (Kieley, Max) (Entered: 08/20/2013)
304 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Settlement Conference held on 8/20/2013. No settlement reached. Settlement discussions will continue. (kt) (Entered: 08/21/2013)
305 NOTICE of Scheduling Conference set for 9/10/2013 11:00 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. Signed by Magistrate Judge Jeffrey J. Keyes on 8/21/13. (kt) (Entered: 08/21/2013)
306 MOTION for Declaratory Judgment by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 08/22/2013)
307 NOTICE OF HEARING ON MOTION 306 MOTION for Declaratory Judgment : Motion Hearing set for 11/15/2013 09:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel) (Entered: 08/22/2013)
308 MEMORANDUM in Support re 306 MOTION for Declaratory Judgment filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 08/22/2013)
309 AFFIDAVIT of Daniel E. Gustafson in SUPPORT OF 306 MOTION for Declaratory Judgment filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A)(Gustafson, Daniel) (Entered: 08/22/2013)
310 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 08/22/2013)
311 NOTICE OF HEARING ON MOTION 310 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members : Motion Hearing set for 11/15/2013 09:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel) (Entered: 08/22/2013)
312 MEMORANDUM in Support re 310 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 08/22/2013)
313 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 08/22/2013)
314 NOTICE OF HEARING ON MOTION 313 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program

08/22/2013 08/22/2013 08/22/2013 08/22/2013 08/22/2013 08/22/2013 08/22/2013
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: Motion Hearing set for 11/15/2013 09:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel) (Entered: 08/22/2013)
315 MEMORANDUM in Support re 313 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 08/22/2013)
316 AFFIDAVIT of Daniel E. Gustafson in SUPPORT OF 313 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A and B)(Gustafson, Daniel) (Entered: 08/22/2013)
317 MOTION for Payment of Fees and Costs by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 08/22/2013)
318 NOTICE OF HEARING ON MOTION 317 MOTION for Payment of Fees and Costs : at date and time to be determined. (Gustafson, Daniel) (Entered: 08/22/2013)
319 MEMORANDUM in Support re 317 MOTION for Payment of Fees and Costs filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 08/22/2013)
320 AFFIDAVIT of Daniel E. Gustafson in SUPPORT OF 317 MOTION for Payment of Fees and Costs filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A)(Gustafson, Daniel) (Entered: 08/22/2013)
321 CERTIFICATE OF SERVICE ON PROPOSED ORDER by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, Dennis Richard Steiner, Christopher John Thuringer re 310 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members, 306 MOTION for Declaratory Judgment , 313 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program, 317 MOTION for Payment of Fees and Costs (Gustafson, Daniel) (Entered: 08/22/2013)
322 MOTION to Expedite Discovery by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 08/22/2013)
323 NOTICE OF HEARING ON MOTION 322 MOTION to Expedite Discovery : Motion Hearing set for 9/10/2013 11:00 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (Gustafson, Daniel) (Entered: 08/22/2013)
324 MEMORANDUM in Support re 322 MOTION to Expedite Discovery filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 08/22/2013)
325 CERTIFICATE OF SERVICE ON PROPOSED ORDER by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 322 MOTION to Expedite Discovery (Gustafson, Daniel) (Entered: 08/22/2013)
326 MEMORANDUM in Opposition re 322 MOTION to Expedite Discovery filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Alpert, Steven) (Entered: 08/29/2013)

08/29/2013 09/09/2013 09/09/2013 09/09/2013 09/09/2013
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327 AFFIDAVIT of Steven H. Alpert in OPPOSITION TO 322 MOTION to Expedite Discovery filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) 1−8)(Alpert, Steven) (Entered: 08/29/2013)
328 MEMORANDUM in Opposition re 317 MOTION for Payment of Fees and Costs filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Figueroa, Ricardo) (Entered: 09/09/2013)
329 MOTION to Dismiss/General (for lack of subject matter jurisdiction and failure to state a claim unpon which relief could be granted) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 09/09/2013)
330 NOTICE OF HEARING ON MOTION 329 MOTION to Dismiss/General (for lack of subject matter jurisdiction and failure to state a claim unpon which relief could be granted) : Motion Hearing set for 11/15/2013 09:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Figueroa, Ricardo) (Entered: 09/09/2013)
331 MEMORANDUM in Support re 329 MOTION to Dismiss/General (for lack of subject matter jurisdiction and failure to state a claim unpon which relief could be granted) (MOL support of Defs' motion to dismiss Plaintiffs' Second Amended Complaint) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Figueroa, Ricardo) (Entered: 09/09/2013)
332 AFFIDAVIT of Ricardo Figueroa in SUPPORT OF 329 MOTION to Dismiss/General (for lack of subject matter jurisdiction and failure to state a claim unpon which relief could be granted) (and to dismiss Plaintiffs' Second Amended Complaint) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) 1−32)(Figueroa, Ricardo) (Entered: 09/09/2013)
333 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 329 MOTION to Dismiss/General (for lack of subject matter jurisdiction and failure to state a claim unpon which relief could be granted) (and to dismiss Plaintiffs' Second Amended Complaint) (Figueroa, Ricardo) (Entered: 09/09/2013)
334 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Motion Hearing held on 9/10/2013 re 322 MOTION to Expedite Discovery filed by Bradley Wayne Foster, David Leroy Gamble, Jr., Craig Allen Bolte, Brian K. Hausfeld, Kaine Joseph Braun, Dennis Richard Steiner, James John Rud, Kenny S. Daywitt, Kevin John DeVillion, James Allen Barber, James Matthew Noyer, Sr., Christopher John Thuringer, Peter Gerard Lonergan, Kevin Scott Karsjens. (kt) (Entered: 09/10/2013)
335 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Scheduling Conference held on 9/10/2013. (kt) (Entered: 09/10/2013)
336 TEXT−ONLY ORDER Magistrate Judge Jeffrey J. Keyes that (1) Plaintiffs Motion for Expedited Discovery (Doc. No. 322), is GRANTED as stated on the record.(2) A Scheduling Order will be filed separately. (kt) (Entered: 09/10/2013)
337 SCHEDULING ORDER: Discovery due by 12/15/2013. Motions (non−disp) due 7/30/2014. Motions (disp) due by 11/15/2014. Ready for trial due by 4/15/2015. Signed by Magistrate Judge Jeffrey J. Keyes on 9/10/13. (kt) (Entered: 09/10/2013)
338 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Settlement Conference held on 9/11/2013. No settlement reached. Settlement discussions will continue. (kt) (Entered: 09/11/2013)
339 Joint MOTION to Adopt Briefing Schedule by James Allen Barber, Dennis Benson, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Kevin Scott Karsjens, Peter Gerard Lonergan, Tom Lundquist, Kevin Moser, James Matthew Noyer, Sr, James John Rud, Dennis Richard

09/24/2013
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Steiner, Christopher John Thuringer, Ann Zimmerman. (Gustafson, Daniel) (Entered: 09/16/2013)
340 ORDER. Pursuant to the parties' Joint Motion to Adopt Briefing Schedule filed on September 16, 2013, (Doc. No. 339 ), the Court further Orders the following Briefing Schedule related to these Motions: 1. Plaintiffs' Amended Motions Regarding Preliminary Injunctions and Declaratory Judgment and Defendants' Amended Motion to Dismiss and Supporting Memoranda and exhibits will be due on December 20, 2013. 2. Plaintiffs' Response to Defendants' Motion to Dismiss and Defendants' Response to Plaintiffs' Motions Regarding Preliminary Injunctions and Declaratory Judgment will be due on January 15, 2014. 3. Defendants' Reply to the Motion to Dismiss and Plaintiffs' Reply to the Motions Regarding Preliminary Injunctions and Declaratory Judgment will be due on January 31, 2014. Signed by Judge Donovan W. Frank on 9/24/2013. (BJS) (Entered: 09/24/2013)
341 ORDER appointing David Ferleger as the Court's technical advisor in this litigation as a judicial adjunct. (See Order for details.) Signed by Judge Donovan W. Frank on 09/27/2013. (RLB) (Entered: 09/27/2013)
342 TEXT ONLY ENTRY: ORDER. In light of the recent filings in this matter, the Court requests that Plaintiffs update the Court, by filing a brief letter on or before 5 p.m. on October 2, 2013, as to the status of each of the issues raised in their Motion for Payment of Fees and Costs (Doc. No. 317). Defendants may file a response to Plaintiffs' letter on or before 5 p.m. on October 4, 2013. Signed by Judge Donovan W. Frank on 9/30/2013. (BJS) (Entered: 09/30/2013)
343 LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer . (Gustafson, Daniel) (Entered: 10/01/2013)
344 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (pursuant to Doc. No. 342). (Figueroa, Ricardo) (Entered: 10/04/2013)
345 **TEXT ONLY ENTRY** The Court will consider and render a decision on Plaintiffs' Motion for Payment of Fees and Costs (Doc. No. 317 ) on the papers and without a hearing. Signed by Judge Donovan W. Frank on 10/09/2013. (RLB) (Entered: 10/09/2013)
346 ORDER/NOTICE of Settlement Conference set for 11/12/2013 08:30 AM in Judge's Chambers, Suite 646 (STP) before Magistrate Judge Jeffrey J. Keyes. Signed by Magistrate Judge Jeffrey J. Keyes on 10/17/13. (kt) (Entered: 10/17/2013)
347 FILED IN ERROR − SEE ORDER 355 − MOTION and Notice of Motion for Leave to Intervene of Right or Permissively and to file Class Action Complaint in Intervention by Stephen Danforth, Ronald Harrison, Michael Benson, Timothy Briesemeister, Raymond Leon Semler, Chrisopher Paul Jackson. (Attachments: # 1 Class Action Complaint in Intervention, # 2 Envelope)(JME)DOCUMENT QC'D ON 10/28/13 LGL Modified on 10/28/2013 (LGL). Modified on 10/31/2013 (las). (Entered: 10/25/2013)
348 FILED IN ERROR − SEE ORDER 355 − MOTION and Notice of Motion for order determining that complaint in intervention proceed as class action by Dennis Benson, Timothy Briesemeister, Stephen Danforth, Ronald Harrison, Chrisopher Paul Jackson, Raymond Leon Semler. (JME) Modified on 10/25/2013 (JME). DOCUMENT QC'D ON 10/28/13 LGL Modified on 10/28/2013 (LGL). Modified on 10/31/2013 (las). (Entered: 10/25/2013)
349 FILED IN ERROR − SEE ORDER 355 − Application to Proceed in District Court without Prepaying Fees or Costs filed by Michael Benson, Timothy Briesemeister, Stephen Danforth, Ronald Harrison, Chrisopher Paul Jackson, Raymond Leon Semler. (JME)DOCUMENT QC'D ON 10/28/13 LGL Modified on 10/28/2013 (LGL). Modified on 10/31/2013 (las). (Entered: 10/25/2013)

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11/19/2013

350 FILED IN ERROR − SEE ORDER 355 − MEMORANDUM in Support re 348 MOTION for order determining that complaint in intervention proceed as class action filed by Michael Benson, Timothy Briesemeister, Stephen Danforth, Ronald Harrison, Chrisopher Paul Jackson, Raymond Leon Semler. (JME)DOCUMENT QC'D ON 10/28/13 LGL Modified on 10/28/2013 (LGL). Modified on 10/31/2013 (las). (Entered: 10/25/2013)
351 FILED IN ERROR − SEE ORDER 355 − AFFIDAVIT of Stephen Danforth in SUPPORT OF 348 MOTION for order determining that complaint in intervention proceed as class action filed by Stephen Danforth. (JME)DOCUMENT QC'D ON 10/28/13 LGL Modified on 10/28/2013 (LGL). Modified on 10/31/2013 (las). (Entered: 10/25/2013)
352 FILED IN ERROR − SEE ORDER 355 − AFFIDAVIT of Stephen Danforth in SUPPORT OF 347 MOTION for Leave to Intervene of Right or Permissively and to file Class Action Complaint in Intervention filed by Stephen Danforth. (JME)DOCUMENT QC'D ON 10/28/13 LGL Modified on 10/28/2013 (LGL). Modified on 10/31/2013 (las). (Entered: 10/25/2013)
353 FILED IN ERROR − SEE ORDER 355 − AFFIDAVIT of Service by Michael Benson, Timothy Briesemeister, Stephen Danforth, Ronald Harrison, Chrisopher Paul Jackson, Raymond Leon Semler re 352 Affidavit in Support of Motion, 350 Memorandum in Support of Motion, 348 MOTION for order determining that complaint in intervention proceed as class action, 351 Affidavit in Support of Motion, 347 MOTION to Alter/Amend/Supplement Pleadings (JME) DOCUMENT QC'D ON 10/28/13 LGL Modified on 10/28/2013 (LGL). Modified on 10/31/2013 (las). (Entered: 10/25/2013)
354 ORDER. 1. To the extent Plaintiffs seek the appointment of expert witnesses for the benefit of the Court pursuant to Rule 706, the motion is GRANTED. The parties shall each submit nominations for such experts and identify the experts' respective areas of expertise and hourly rates. 2. To the extent Plaintiffs seek an order requiring Defendants to advance payment for Plaintiffs' discovery costs or other litigation fees, the motion is DENIED. 3. In all other respects, the motion is DENIED. Signed by Judge Donovan W. Frank on 10/25/2013. (BJS) (cc: 6 to Pro Se Plaintiffs) (Entered: 10/25/2013)
355 ORDER. 1. The Clerk of Court shall mark the docket entries of each of the pro se submissions (Doc. Nos. [347−53]) as FILED IN ERROR. 2. The Clerk of Court shall return the pro se submissions (Doc. Nos. [347−53]) to the sender(s) along with a copy of the Courts September 18, 2012 Order (Doc. No. 237 ). Signed by Judge Donovan W. Frank on 10/30/2013. (BJS)(cc: 6 to Pro Se Plaintiffs) Modified on 11/1/2013 (las). (Entered: 10/30/2013)
356 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Settlement Conference held on 11/12/2013. No settlement reached. (kt) (Entered: 11/12/2013)
357 AMENDED PROTECTIVE ORDER. Signed by Magistrate Judge Jeffrey J. Keyes on 11/12/13. (kt) CC: Pro se parties. (kt) (Entered: 11/12/2013)
358 NOTICE of Status Conference set for 12/17/2013 01:30 PM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. Signed by Magistrate Judge Jeffrey J. Keyes on 11/12/13. (kt) CC: Pro se parties. (kt) (Entered: 11/12/2013)
359 NOTICE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 310 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members, 306 MOTION for Declaratory Judgment , 313 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program (Plaintiffs' Notice of Withdrawal of Motions) (Gustafson, Daniel) (Entered: 11/19/2013)
360 MOTION for Declaratory Judgment by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard

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Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 11/19/2013)
361 NOTICE OF HEARING ON MOTION 360 MOTION for Declaratory Judgment : Motion Hearing set for 12/18/2013 08:30 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel) (Entered: 11/19/2013)
362 MEMORANDUM in Support re 360 MOTION for Declaratory Judgment filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 11/19/2013)
363 AFFIDAVIT of Daniel E. Gustafson in SUPPORT OF 360 MOTION for Declaratory Judgment filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A−C)(Gustafson, Daniel) (Entered: 11/19/2013)
364 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 11/19/2013)
365 NOTICE OF HEARING ON MOTION 364 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members : Motion Hearing set for 12/18/2013 08:30 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel) (Entered: 11/19/2013)
366 MEMORANDUM in Support re 364 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 11/19/2013)
367 AFFIDAVIT of Daniel E. Gustafson in SUPPORT OF 364 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A−B)(Gustafson, Daniel) (Entered: 11/19/2013)
368 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 11/19/2013)
369 NOTICE OF HEARING ON MOTION 368 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program : Motion Hearing set for 12/18/2013 08:30 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel) (Entered: 11/19/2013)
370 MEMORANDUM in Support re 368 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 11/19/2013)
371 AFFIDAVIT of Daniel E. Gustafson in SUPPORT OF 368 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A−C)(Gustafson, Daniel) (Entered: 11/19/2013)
372 CERTIFICATE OF SERVICE ON PROPOSED ORDER by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 368 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program, 364 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members, 360

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MOTION for Declaratory Judgment (Gustafson, Daniel) (Entered: 11/19/2013)
373 NOTICE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 329 MOTION to Dismiss/General (for lack of subject matter jurisdiction and failure to state a claim unpon which relief could be granted) (Defendants' Notice of Withdrawal of Motion to Dismiss (Figueroa, Ricardo) (Entered: 11/19/2013)
374 MOTION to Dismiss/General (for lack of subject matter jurisdiction and failure to state a claim) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 11/19/2013)
375 NOTICE OF HEARING ON MOTION 374 MOTION to Dismiss/General (for lack of subject matter jurisdiction and failure to state a claim) : Motion Hearing set for 12/18/2013 08:30 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Figueroa, Ricardo) (Entered: 11/19/2013)
376 MEMORANDUM in Support re 374 MOTION to Dismiss/General (for lack of subject matter jurisdiction and failure to state a claim) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Figueroa, Ricardo) (Entered: 11/19/2013)
377 AFFIDAVIT of Ricardo Figueroa in SUPPORT OF 374 MOTION to Dismiss/General (for lack of subject matter jurisdiction and failure to state a claim) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) 1−11, # 2 Exhibit(s) 12−31)(Figueroa, Ricardo) (Entered: 11/19/2013)
378 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 374 MOTION to Dismiss/General (for lack of subject matter jurisdiction and failure to state a claim) (Figueroa, Ricardo) (Entered: 11/19/2013)
379 LETTER TO DISTRICT JUDGE by ACLU of Minnesota and Dean Eric Janus regarding Brief of Amicus Curiae. (Attachments: # 1 Certificate of Service)(Nelson, Teresa) (Entered: 12/05/2013)
380 MEMORANDUM in Opposition re 368 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Figueroa, Ricardo) (Entered: 12/05/2013)
381 MEMORANDUM in Opposition re 364 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Figueroa, Ricardo) (Entered: 12/05/2013)
382 MEMORANDUM in Opposition re 360 MOTION for Declaratory Judgment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate, # 2 Placeholder for Redacted MOL)(Figueroa, Ricardo) Sealed documents received on 12/5/2013 (JGK). (Entered: 12/05/2013)
383 AFFIDAVIT of Nathan Brennaman in OPPOSITION TO 368 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) A, C. D, E, # 2 Placeholder for Exhibits B and F (Filed under seal))(Figueroa, Ricardo) Sealed documents received on 12/5/2013 (JGK). (Entered: 12/05/2013)
384 AFFIDAVIT of Jessica Geil in OPPOSITION TO 368 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program, 360 MOTION for Declaratory Judgment filed by Dennis Benson,

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Jannine Hebert, Lucinda Jesson, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) Public Exhibits, # 2 Placeholder for Sealed Geil Affidavit, # 3 Placeholder for Sealed Exhibitis to Geil Affidavit)(Figueroa, Ricardo) Sealed documents received on 12/5/2013 (JGK). (Entered: 12/05/2013)
385 AFFIDAVIT of Jannine Hebert in OPPOSITION TO 368 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program, 364 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members, 360 MOTION for Declaratory Judgment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) (A−H))(Figueroa, Ricardo) DOCUMENT FILED IN ERROR − DOCUMENT RESTRICTED AS DOCUMENT SHOULD HAVE BEEN FILED UNDER SEAL. (kt) (Entered: 12/05/2013)
386 AFFIDAVIT of Lauren A. Allen in OPPOSITION TO 360 MOTION for Declaratory Judgment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 12/05/2013)
387 AFFIDAVIT of Lucinda Jesson in OPPOSITION TO 368 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program, 364 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members, 360 MOTION for Declaratory Judgment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) A−D)(Figueroa, Ricardo) (Entered: 12/05/2013)
388 AFFIDAVIT of Anna Remiger in OPPOSITION TO 360 MOTION for Declaratory Judgment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 12/05/2013)
389 MEMORANDUM in Opposition re 374 MOTION to Dismiss/General (for lack of subject matter jurisdiction and failure to state a claim) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 12/05/2013)
390 CERTIFICATE OF SERVICE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 383 Affidavit in Opposition to Motion, 381 Memorandum in Opposition to Motion, 382 Memorandum in Opposition to Motion, 384 Affidavit in Opposition to Motion,, 380 Memorandum in Opposition to Motion, 386 Affidavit in Opposition to Motion, 385 Affidavit in Opposition to Motion,, 387 Affidavit in Opposition to Motion,, 388 Affidavit in Opposition to Motion (Figueroa, Ricardo) (Entered: 12/05/2013)
391 LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (Regarding Request to Submit Brief of Amicus Curiae). (Gustafson, Daniel) (Entered: 12/06/2013)
392 CAMENDED ERTIFICATE OF SERVICE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 383 Affidavit in Opposition to Motion, 382 Memorandum in Opposition to Motion, 384 Affidavit in Opposition to Motion. (Figueroa, Ricardo) Modified on 12/9/2013 (kt). (Entered: 12/06/2013)
393 ORDER APPOINTING EXPERTS UNDER RULE 706 OF THE FEDERAL RULES OF EVIDENCE. 1. By order of October 25, 2013 (Doc. No. 354), the Court required the parties to "each submit nominations for such [Fed. R. Evid. 706] experts and identify the experts' respective areas of expertise and hourly rates." (See Order for additional information and details.) Signed by Judge Donovan W. Frank on 12/6/2013. (BJS) cc: Pro Se Movants Modified text on 12/9/2013 (las). (Entered: 12/06/2013)

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394 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Alpert, Steven) (Entered: 12/09/2013)
395 CERTIFICATE OF SERVICE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 394 Letter to District Judge (Alpert, Steven) (Entered: 12/09/2013)
396 Reply to Response to Motion re 360 MOTION for Declaratory Judgment filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 12/10/2013)
397 Reply to Response to Motion re 364 MOTION for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 12/10/2013)
398 Reply to Response to Motion re 368 MOTION for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 12/10/2013)
399 Reply to Response to Motion re 374 MOTION to Dismiss/General (for lack of subject matter jurisdiction and failure to state a claim) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 12/10/2013)
400 ORDER. 1. The ACLU and Dean Janus shall file their amicus brief on or before December 27, 2013. 2. Plaintiffs and Defendants may each file a written response to the amicus brief on or before January 3, 2014. (Written Opinion). Signed by Judge Donovan W. Frank on 12/11/2013. (BJS) cc: Pro Se Movants. Modified on 12/11/2013 (las). (Entered: 12/11/2013)
401 TEXT ONLY ENTRY: NOTICE of Resetting of Status Conference: 358 Status Conference set for 12/17/2013 reset for 1/2/2014 03:00 PM in Judge's Chambers/Conference Room, Suite 646 (STP) before Magistrate Judge Jeffrey J. Keyes. (JEP) cc: Pro Se Movants. Modified on 12/13/2013 (las). (Entered: 12/12/2013)
402 NOTICE of Appearance by Nathan A Brennaman on behalf of Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 12/16/2013)
403 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Alpert, Steven) (Entered: 12/16/2013)
404 Minute Entry for proceedings held before Judge Donovan W. Frank: Motion Hearing held on 12/18/2013. (Motions 360 , 364 , 368 , 374 ) Matters taken under advisement; written order to issue. (Court Reporter Jeanne Anderson) (BJS) (Entered: 12/18/2013)
405 TEXT ONLY ENTRY: ORDER In accordance with the parties' agreement at the December 18, 2013 hearing, the deadline for Plaintiffs and Defendants to respond to the amicus brief of the ACLU and Dean Janus (see Doc. No. 400 ) is hereby extended to January 10, 2014. Signed by Judge Donovan W. Frank on 12/18/2013. (BJS) CC: pro se parties. (kt) (Entered: 12/18/2013)
406 DOCUMENT FILED IN ERROR − DECLARATION of Stephen Danforth Supplementing and Supporting Motion of Proposed Intervenors for Leave to File Motions for Intervention and to Proceed as Class Action, Proposed Class Action Complaint in Intervention and Supporting Documents by Stephen Danforth. (Attachments: # 1 Declaration of Service, # 2 Envelope)(MMP) DOCUMENT QC'D ON 12/23/13 LGL Modified on 12/23/2013 (LGL). Modified on 12/27/2013 (jam). Documents sent back to Stephen Danforth on 12/27/2013 (jam). (Entered: 12/23/2013)

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407 ORDER re 406 Declaration, filed by Stephen Danforth. 1. The Clerk of Court shall mark the docket entry of the pro se submission (Doc. No. 406 ) as FILED IN ERROR. 2. The Clerk of Court shall return the pro se submission (Doc. No. 406 ) to the sender along with a copy of the Court's September 18, 2012 Order (Doc. No. 237 ). Signed by Judge Donovan W. Frank on 12/26/2013. (BJS) cc: pro parties on 12/27/2013 (jam). (Entered: 12/26/2013)
408 BRIEF of Amici Curiae Eric S. Janus and ACLU of Minnesota. (Attachments: # 1 Certificate of Service)(Nelson, Teresa) (Entered: 12/27/2013)
409 APPENDIX filed re 408 Brief of Amici Curiae Eric S. Janus and ACLU of Minnesota. (Nelson, Teresa) (Entered: 12/27/2013)
410 Declaration of Teresa J. Nelson in Support of 408 Brief filed by ACLU of Minnesota. (Attachments: # 1 Exhibit(s) 1 through 20)(Nelson, Teresa) (Entered: 12/27/2013)
411 Second Declaration of Teresa J. Nelson in Support of 408 Brief filed by ACLU of Minnesota. (Attachments: # 1 Exhibit(s))(Nelson, Teresa) (Entered: 12/27/2013)
412 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (JMA) (Entered: 01/02/2014)
413 TRANSCRIPT of Motions Hearing held on 12/18/2013 before Judge Donovan W. Frank. (177 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov. Telephone: (651) 848−1221). Redaction Request due 1/23/2014. Redacted Transcript Deadline set for 2/3/2014. Release of Transcript Restriction set for 4/2/2014. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 01/02/2014)
414 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Status Conference held on 1/2/2014. (kt) (Entered: 01/02/2014)
415 LETTER TO COUNSEL from Judge Donovan W. Frank regarding permission to file/submit an Amicus Brief. (Attachments: # 1 Letter Request from Thomas Evenstad)(BJS) (Entered: 01/09/2014)
416 RESPONSE re 408 Brief of Amici Curiae Eric S. Janus and ACLU−MN filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 01/10/2014)
417 RESPONSE re 408 Brief (to Amicus Curaie Brief) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 01/10/2014)
418 AMENDED PRETRIAL SCHEDULING ORDER: Motions (non−disp) due 12/10/2014. Motions (disp) due by 3/20/2015. Ready for trial due by 7/30/2015. Signed by Magistrate Judge Jeffrey J. Keyes on 1/13/14. (kt) (Entered: 01/13/2014)
419 LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (Regarding response to the letter submitted to the Court by Thomas Evenstad seeking permission to file a Brief of Amicus Curiae and to be appointed as a consultant/paralegal for Gustafson Gluek PLLC in this matter). (Gustafson, Daniel) (Entered: 01/14/2014)
420 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (regarding Defs' response to Thomas Evenstad's request fo file amicus curiae brief and appointment as consultant/paralegal for Gustafon Gluek). (Brennaman, Nathan) (Entered: 01/17/2014)
421 LETTER TO MAGISTRATE JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer Joint Letter re: Rule 706 Experts. (Gustafson,

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Daniel) (Entered: 01/22/2014)
422 EXPERT PLAN dated February 3, 2014. (BJS) (Entered: 02/06/2014)
423 TEXT ONLY ORDER: The Court DENIES AS MOOT the letter request of Thomas Evenstad to file an Amicus Brief in the matter of Kevin Scott Karsjens, et al. v. Minnesota Department of Human Services, et al., CV 11−3659 (DWF/JJK), as the letter itself shall be deemed by the Court to be an Amicus Letter Brief and it shall be filed as such in this matter. SO ORDERED. Signed by Judge Donovan W. Frank on 2/11/2014. (BJS) (Entered: 02/11/2014)
424 LETTER TO DISTRICT JUDGE from E. George Widseth. (Attachment: # 1 Transcript of Civil Commitment Hearing of Thomas Ray Duvall; Attachment #2: 413 TRANSCRIPT of Motions Hearing held on 12/18/2013 before Judge Donovan W. Frank)(TSS) Document QC'd on 2/25/2014 (JGK). (Entered: 02/12/2014)
425 Amicus Letter Brief filed by Thomas Evenstad. (TSS) (Entered: 02/13/2014)
426 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Brennaman, Nathan) (Entered: 02/13/2014)
427 MEMORANDUM OPINION AND ORDER. 1. Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. No. 374 ) is GRANTED IN PART and DENIED IN PART as follows: a. With respect to Plaintiffs' equal protection claim, the motion is GRANTED. Count X of Plaintiffs' Second Amended Complaint (Doc. No. 301 ) is thus DISMISSED. b. To the extent Plaintiffs may seek monetary damages against Defendants in their official capacities, the motion is GRANTED. c. In all other respects, Defendants' motion is DENIED. 2. Plaintiffs' Motion for Declaratory Judgment (Doc. No. 360 ) is DENIED WITHOUT PREJUDICE. 3. Plaintiffs' Motion for Preliminary Injunction to Provide Less Restrictive Alternative Treatment Facilities and to Re−Evaluate Class Members (Doc. No. 364 ) is DENIED WITHOUT PREJUDICE. 4. Plaintiffs' Motion for Preliminary Injunction for the Appointment of a Special Master to Oversee the Minnesota Sex Offender Program (Doc. No. 368 ) is DENIED WITHOUT PREJUDICE. 5. With respect to the experts appointed pursuant to Rule 706 of the Federal Rules of Evidence (see Doc. No. 393 ), the Court orders the following: a. The experts' work shall include, but shall not be limited to: i. Evaluating all class members54 and issuing reports and recommendations as to: (a) each class members current level of dangerousness (current risk assessment), including whether each class member poses a "real, continuing, and serious danger to society"; (b) whether each class member is actually eligible for discharge under the applicable statutory provisions or otherwise no longer meets the statutory criteria for initial commitment (or should otherwise be recommended for provisional or full discharge); (c) whether each class member is placed in the appropriate phase of treatment; (d) whether each class member would be a candidate for a less restrictive facility; and (e) the specific need and parameters for less restrictive alternative facilities,55 including the operation of such facilities; ii. Reviewing the current treatment program at MSOP and its implementation to determine whether the program meets professional standards of care and treatment for sex offenders and issuing recommendations as to any changes that should be made to the treatment program; and iii. Reviewing current MSOP policies and practices with regard to the conditions of confinement to determine whether they satisfy the balance between safety concerns and a therapeutic environment and making recommendations for any changes that should be made to the conditions of confinement at both the Moose Lake and St. Peter facility. iv. The experts shall also report to the Court on the following: (a) the current professional standards for the treatment of civilly committed sex offenders and the extent to which MSOP's program design reflects those standards; (b) how other civil commitment programs have reintegrated civilly committed sex offenders into the community, with particular attention to community relations; and (c) how other states, if any, are providing treatment and management of lower−functioning civilly committed sex offenders in community settings. b. The experts' work shall begin with, but will in no way be limited to, the following: i. Reviewing MSOP treatment and screening program/process; ii. Conducting site visits to St. Peter and Moose Lake and interviewing patients and staff at each facility; iii. Reviewing 20% to 25% of resident charts, with the aim of reviewing 100% of charts for those individuals in the Assisted Living Unit, the Alternative Program Units, and

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the Young Adult Unit; and iv. Identifying residents who are not receiving appropriate services and making recommendations related thereto. c. In conducting their work, the experts shall have complete and unrestricted access to documents they may require, including the reference documents and MSOP policy documents set forth above as well as patient files and clinical documents. d. Within fourteen (14) days of the date of this Order, and in the format requested by the experts, Defendants shall provide the experts with all of the reference documents and MSOP policies and procedures requested by the experts. (See Doc. No. 422 .) e. DHS, and all officials, staff, consultants, and contractors for DHS, are directed to provide the appointed experts with full and complete access to all residents and staff as well as all relevant information, documents, and records requested by the experts. Such access shall include, but shall not be limited to, the following: i. Access to all patient files and related documentation; ii. Access to meet with, interview, or otherwise communicate with MSOP patients; iii. Access to all MSOP policymakers as well as all policies and related documentation; iv. Access to review the current conditions of confinement at MSOP and related policies and rules; v. Access to review all aspects of the current treatment program provided by MSOP; and vi. Access to privately meet with, interview, or otherwise communicate with DHS officials, staff, consultants, and contractors for DHS. vii. DHS shall also create and provide any aggregation or analysis of data requested by the appointed experts. f. In conducting their work, the experts may call upon the MPET members previously appointed by the Court (see Doc. No. 281 ) as well as Roberta Opheim, Minnesota State Ombudsman for Mental Health and Developmental Disabilities, as necessary. g. The experts may convene meetings, confer with relevant individuals and groups, attend case−related court proceedings, and review all documents submitted to the Court. The parties shall henceforth serve the experts with all such papers. h. The experts shall have ex parte access to the Court and its Technical Advisor for logistical and organizational purposes, subject to the limitations of Rule 706. i. To facilitate the integrity and effectiveness of the experts work, their communications with one another and work product (such as draft documents, correspondence, e−mails, and conversations) shall be privileged, confidential, and not admissible. j. The experts' work will be overseen and coordinated by Magistrate Judge Jeffrey J. Keyes, with the assistance of the Court's Technical Advisor. k. The parties shall meet and confer, facilitated by the Court's Technical Advisor if necessary, to establish an interim budget deposit for the experts and a mechanism for payment. Without prejudice to subsequent adjustment, such costs shall be initially allocated to Defendants. (Written Opinion). Signed by Judge Donovan W. Frank on 2/19/2014. (BJS) (Entered: 02/20/2014)
428 NOTICE of Status Conference set for 3/12/2014 03:00 PM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. Signed by Magistrate Judge Jeffrey J. Keyes on 2/27/14. (kt) (Entered: 02/27/2014)
429 STIPULATION re 301 Amended Complaint,, (Stipulation for Extension of Time to Answer) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 02/27/2014)
430 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 429 Stipulation (Figueroa, Ricardo) (Entered: 02/27/2014)
431 ORDER that Defendants shall have an extension of time to file an Answer to Plaintiff's Second Amended Complaint and must do so no later than 3/25/14. Signed by Magistrate Judge Jeffrey J. Keyes on 2/27/14. (kt) (Entered: 02/27/2014)
432 NOTICE of Appearance by Scott H Ikeda on behalf of Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Ikeda, Scott) (Entered: 02/27/2014)
433 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Hearing on Status of Discovery held on 3/12/2014. (kt) (Entered: 03/13/2014)
434 ORDER. 1. The Rule 706 Experts shall submit on an approximately monthly basis, a single dated invoice to the Court for fees and expenses with copies to the parties. Each invoice shall include and aggregate separate invoices from each Expert. Documentation of expenses shall be included. The Technical Advisor may also

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submit such statements for his work. 2. A party may make an informal objection to an invoice for good cause shown, by sending an unfiled letter to the District Judge, Magistrate Judge, and the Court's Technical Advisor within five (5) days of the invoice, so that an effort may be made to resolve the objection. 3. The Court will review invoices and issue appropriate orders for payment from the Court's Registry. If no objection is filed by a party with the Court within ten (10) days of the date of the invoice, any objection to the invoice shall be considered permanently waived. 4. By agreement, the Department of Human Services shall make an interim budget deposit to the Registry of this Court in the amount of $1,800,000 on account for the fees and expenses pursuant to this Order. 5. Upon the Court's order determining that the work under this Order has concluded, any balance remaining in the Registry account shall promptly be returned to the Department of Human Services. Signed by Judge Donovan W. Frank on 3/17/2014. (BJS) (Entered: 03/17/2014)
435 Defendants ANSWER to Amended Complaint (Second Amended Complaint) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 03/25/2014)
436 RECEIPT number 44641077583 in the amount of $1800000.00 issued to State of Minnesota. (kt)DOCUMENT QC'D ON 3/26/14 LGL Modified on 3/26/2014 (LGL). (Entered: 03/26/2014)
437 DEMAND for Trial by Jury by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Figueroa, Ricardo) (Entered: 03/28/2014)
438 LETTER to Chief Judge Michael J. Davis from Stephen Danforth. (Attachments: # 1 Proposed Complaint, # 2 IFP, # 3 Motion for Leave To file, # 4 Declaration in Support, # 5 Motion to Intervene, # 6 Memorandum in Support, # 7 Declaration of Service, # 8 Proposed Motion for TRO, # 9 Declaration in Support, # 10 Proposed Order, # 11 Memorandum, # 12 Envelope)(TSS) (Additional attachment(s) added on 4/10/2014: # 13 Corrected Memorandum (Correction to Attachment 11)) (kt).DOCUMENT QC'D ON 4/14/14 LGL (Entered: 04/07/2014)
439 ORDER re 438 Letter to Chief District Judge. Stephen Danforth's Motion to Intervene (Doc. No. 438 ) is DENIED. Signed by Judge Donovan W. Frank on 4/8/2014. (BJS) cc: Stephen Danforth on 4/8/2014 (jam). (Entered: 04/08/2014)
NOTICE OF DOCKETING CORRECTION for 438 Letter to District Judge: Memorandum (Attachment 11) rescanned to include missing pages. (kt) (Entered: 04/10/2014)
440 ORDER. Pursuant to and under the terms of the Order of March 17, 2014 (Doc. No. 434), the Clerk shall forthwith issue checks to: 1. Naomi Freeman in the amount of $9,302.24; 2. Deborah McCulloch in the amount of $7,078.07; 3. Michael Miner in the amount of $4,527.50; and 4. Robin J. Wilson in the amount of $8,926.34. The checks are to be drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 4/11/2014. (Attachments: # 1 Attachment A)(BJS) cc: Finance on 4/11/2014 (JAM). (Entered: 04/11/2014)
441 ORDER. Pursuant to and under the terms of the Order of March 17, 2014 (Doc. No. 434), the Clerk shall forthwith issue a check to David Ferleger in the amount of $697.50 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 4/15/2014. (Attachments: # 1 Attachment A)(BJS) cc: financial on 4/16/2014 (JAM). (Entered: 04/15/2014)
442 NOTICE OF STATUS CONFERENCE A Status Conference set for 5/7/2014 09:30 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. Signed by Magistrate Judge Jeffrey J. Keyes on 04/21/2014. (JZ) (Entered: 04/21/2014)
443 RECEIPT number 00419866 in the amount of $4527.50. (kt)DOCUMENT QC'D ON 4/23/14 LGL Modified on 4/23/2014 (LGL). (Entered: 04/22/2014)
444 NOTICE OF HEARING ON MOTION to Compel Preservation and Production of Documents Motion Hearing set for 5/7/2014 09:30 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (Gustafson, Daniel) (Entered: 04/23/2014)

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445 RECEIPT number 00420050 in the amount of $697.50. (kt) (Qc'd on 5/1/14 by akl) (Entered: 04/24/2014)
446 RECEIPT number 419914 in the amount of $9302.24. (kt) (Qc'd on 5/1/14 by akl) (Entered: 04/24/2014)
447 MOTION to Compel Preservation and Production of Documents by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 04/25/2014)
448 MEMORANDUM in Support re 447 MOTION to Compel Preservation and Production of Documents filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 04/25/2014)
449 AFFIDAVIT of Daniel E. Gustafson in SUPPORT OF 447 MOTION to Compel Preservation and Production of Documents filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A−Q, # 2 Exhibit(s) R−T, # 3 Exhibit(s) U−V)(Gustafson, Daniel) (Entered: 04/25/2014)
450 MEET and CONFER STATEMENT re 447 Motion to Compel, filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 04/25/2014)
451 CERTIFICATE OF SERVICE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 447 MOTION to Compel Preservation and Production of Documents (Conventionally Filed Documents and Proposed Order) (Gustafson, Daniel) (Entered: 04/25/2014)
452 RECEIPT for check number 00419921 received in the amount of $8,926.34. (JZ) DOCUMENT QC'd by KT on 5/1/14. (KT) (Entered: 04/28/2014)
453 RECEIPT for check number 00419909 received in the amount of $7,078.07. (JZ) QC'd on 4/30/2014 (JAM). (Entered: 04/28/2014)
454 ORDER. Pursuant to and under the terms of the Order of March 17, 2014 (Doc. No. 434), the Clerk shall forthwith issue checks to: 1. Naomi Freeman in the amount of $2,700; 2. Deborah McCulloch in the amount of $2,700; 3. Michael Miner in the amount of $2,700; and 4. Robin J. Wilson in the amount of $2,700. The checks are to be drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 5/1/2014. (Attachments: # 1 Attachment A)(BJS) cc: Finance Dept. on 5/2/2014 (JAM). (Entered: 05/01/2014)
455 MEMORANDUM in Opposition re 447 MOTION to Compel Preservation and Production of Documents filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 05/02/2014)
456 AFFIDAVIT of Scott H. Ikeda in OPPOSITION TO 447 MOTION to Compel Preservation and Production of Documents filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) A−B; and E, # 2 Placeholder for Exhibits C−D (filed under seal))(Brennaman, Nathan) Sealed document received on 5/2/2014 (JGK). (Entered: 05/02/2014)
457 AFFIDAVIT of Dennis L. Benson in OPPOSITION TO 447 MOTION to Compel Preservation and Production of Documents filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 05/02/2014)
458 AFFIDAVIT of Steven H. Alpert in OPPOSITION TO 447 MOTION to Compel Preservation and Production of Documents filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman.

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(Attachments: # 1 Exhibit(s) A−B)(Brennaman, Nathan) (Entered: 05/02/2014)
459 CERTIFICATE OF SERVICE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 456 Affidavit in Opposition to Motion, 458 Affidavit in Opposition to Motion, 457 Affidavit in Opposition to Motion, 455 Memorandum in Opposition to Motion, (Brennaman, Nathan) (Entered: 05/02/2014)
460 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Motion Hearing held on 5/7/2014 re 447 MOTION to Compel Preservation and Production of Documents filed by Bradley Wayne Foster, David Leroy Gamble, Jr., Craig Allen Bolte, Brian K. Hausfeld, Kaine Joseph Braun, Dennis Richard Steiner, James John Rud, Kenny S. Daywitt, Kevin John DeVillion, James Allen Barber, James Matthew Noyer, Sr., Christopher John Thuringer, Peter Gerard Lonergan, Kevin Scott Karsjens. (kt) (Entered: 05/07/2014)
461 TEXT−ONLY ORDER by Magistrate Judge Jeffrey J. Keyes that (I) Plaintiffs' Motion to Compel Preservation and Production of Documents (Doc.No. 447), is GRANTED IN PART and DENIED IN PART as stated on the record. The motion is granted to the extent that Defendants must provide Plaintiffs' Counsel with a list of the recipients of each of the litigation holds issued relating to this matter. In addition, for any documents that Defendants discover have been lost, Defendants shall provide Plaintiffs with a detailed description of each document, the circumstances under which it was deleted, and the date of the deletion. The motion is otherwise denied without prejudice.(II) This Minute Order constitutes an Order of the Court. (kt) (Entered: 05/07/2014)
462 RECEIPT number 00420926 in the amount of $2700.00. (kt)DOCUMENT QC'D ON 5/13/14 LGL Modified on 5/13/2014 (LGL). (Entered: 05/12/2014)
463 RECEIPT number 420882 in the amount of $2700.00. (kt)DOCUMENT QC'D ON 5/14/14 LGL Modified on 5/14/2014 (LGL). (Entered: 05/13/2014)
464 RECEIPT number 00420937 in the amount of $2700.00. (kt)DOCUMENT QC'D ON 5/19/14 LGL Modified on 5/19/2014 (LGL). (Entered: 05/19/2014)
465 RECEIPT number 420931 in the amount of $2700.00. (kt)DOCUMENT QC'D ON 5/21/14 LGL Modified on 5/21/2014 (LGL). (Entered: 05/20/2014)
466 ORDER. Pursuant to and under the terms of the Order of March 17, 2014 (Doc. No. 434), the Clerk shall forthwith issue checks to: 1. Naomi Freeman in the amount of $31,203.53; 2. Deborah McCulloch in the amount of $23,487.13; 3. Michael Miner in the amount of $13,875.54; and 4. Robin J. Wilson in the amount of $29,795.67. The checks are to be drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 5/27/2014. (Attachments: # 1 Attachment A)(BJS) cc: Finance Dept. on 5/28/2014 (JAM). (Entered: 05/27/2014)
467 RECEIPT number 00421850 in the amount of $13,875.54. (kt) (Entered: 06/02/2014)
468 ORDER TO SHOW CAUSE (Written Opinion): Show Cause Hearing set for 6/25/2014 02:00 PM in Courtroom 7C (STP) before Judge Donovan W. Frank. Show Cause Response due by 6/11/2014. Signed by Judge Donovan W. Frank on 6/2/14. (kt) (Additional attachment(s) added on 6/2/2014: # 1 SEALED Exhibit) (kt). (Entered: 06/02/2014)
469 MOTION for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 06/04/2014)
470 MEMORANDUM in Support re 469 MOTION for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment (Filed Under Seal) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 6/4/14LGL Modified on 6/4/2014 (LGL). (Entered: 06/04/2014)

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471 Declaration of Daniel E. Gustafson in Support of 469 MOTION for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment filed by All Plaintiffs. (Attachments: # 1 Placeholder for Exhibits A−C)(Gustafson, Daniel)SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 6/4/14LGL Modified on 6/4/2014 (LGL). (Entered: 06/04/2014)
472 NOTICE OF HEARING ON MOTION 469 MOTION for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment : Motion Hearing set for 6/25/2014 02:00 PM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel) (Entered: 06/04/2014)
473 MEET and CONFER STATEMENT re 469 Motion for Miscellaneous Relief, filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 06/04/2014)
474 CERTIFICATE OF SERVICE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 469 MOTION for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment (Gustafson, Daniel) (Entered: 06/04/2014)
475 RECEIPT number 00421873 in the amount of $23,487.13. (kt)DOCUMENT QC'D ON 6/10/14 LGL Modified on 6/10/2014 (LGL). (Entered: 06/06/2014)
476 RECEIPT number 00421876 in the amount of $29,795.67. (kt)DOCUMENT QC'D ON 6/10/14 LGL Modified on 6/10/2014 (LGL). (Entered: 06/06/2014)
477 RECEIPT number 421850 in the amount of $13,875.54. (kt)DOCUMENT QC'D ON 6/10/14 LGL Modified on 6/10/2014 (LGL). (Entered: 06/06/2014)
478 MOTION to Immediately Transfer R.B. to an Appropriate Treatment Facility by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 06/09/2014)
479 NOTICE OF HEARING ON MOTION 478 MOTION to Immediately Transfer R.B. to an Appropriate Treatment Facility : Motion Hearing set for 6/25/2014 02:00 PM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel) (Entered: 06/09/2014)
480 MEMORANDUM in Support re 478 MOTION to Immediately Transfer R.B. to an Appropriate Treatment Facility (Filed Under Seal) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 6/9/14LGLModified on 6/10/2014 (LGL). (Entered: 06/09/2014)
481 Declaration of Daniel E. Gustafson in Support of 478 MOTION to Immediately Transfer R.B. to an Appropriate Treatment Facility filed by All Plaintiffs. (Attachments: # 1 Placeholder for Exhibit A)(Gustafson, Daniel)SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 6/9/14LGL Modified on 6/10/2014 (LGL). (Entered: 06/09/2014)
482 MEET and CONFER STATEMENT re 478 Motion for Miscellaneous Relief, filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 06/09/2014)
483 CERTIFICATE OF SERVICE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 478 MOTION to Immediately Transfer R.B. to an Appropriate Treatment Facility (Gustafson, Daniel) (Entered: 06/09/2014)
484 RECEIPT number 421874 in the amount of $31,203.53. (kt)DOCUMENT QC'D ON 6/11/14 LGL Modified on 6/11/2014 (LGL). (Entered: 06/10/2014)

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485 RESPONSE re 468 Order to Show Cause, (public version) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Placeholder for for Def's Response to Order to Show Cause, # 2 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) Sealed documents received on 6/11/2014 (JGK). (Entered: 06/11/2014)
486 AFFIDAVIT of nancy Johnston re 485 Response, (public version) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Placeholder for for Johnston Affidavit (filed under seal), # 2 Exhibit(s) 1−28 (filed under seal))(Brennaman, Nathan) Sealed documents received on 6/11/2014 (JGK). (Entered: 06/11/2014)
487 AFFIDAVIT of Nathan Brennaman re 485 Response, (public version) by Ann Zimmerman. (Attachments: # 1 Placeholder for for Nathan Brennaman Affidavit (filed under seal), # 2 Exhibit(s) 1−3 to Brennaman Affidavit (filed under seal))(Brennaman, Nathan) Sealed documents received on 6/11/2014 (JGK). (Entered: 06/11/2014)
488 AFFIDAVIT of Elizabeth Barbo re 485 Response, (public version) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Placeholder for Dr. Elizabeth Barbo Affidavit (filed under seal))(Brennaman, Nathan) Sealed documents received on 6/11/2014 (JGK). (Entered: 06/11/2014)
489 CERTIFICATE OF SERVICE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 486 Affidavit, 487 Affidavit, 485 Response, 488 Affidavit, (Brennaman, Nathan) (Entered: 06/11/2014)
490 MOTION for Leave to File Amicus Memorandum by Hennepin County. (Kirwin, John) Modified on 6/16/2014 (AKL). (Entered: 06/13/2014)
491 Supplemental AFFIDAVIT of Nathan Brennaman re 485 Response, PUBLIC VERSION by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Placeholder for Exhibit A to Supplemental Affidavit of Nathan Brennaman)(Brennaman, Nathan) Sealed document received on 6/16/2014 (JGK). (Entered: 06/16/2014)
492 Supplemental AFFIDAVIT of Nathan Brennaman re 485 Response, PLACEHOLDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Placeholder for Exhibit A to Supplemental Affidavit of Nathan Brennaman, # 2 Certificate of Service)(Brennaman, Nathan) (Entered: 06/16/2014)
493 LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re: Motion of Hennepin County Attorney for Leave to File Amicus Memorandum. (Gustafson, Daniel) (Entered: 06/17/2014)
494 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (regarding Hennepin County motion to file amicus curiae brief). (Brennaman, Nathan) (Entered: 06/18/2014)
495 MEMORANDUM in Opposition re 478 MOTION to Immediately Transfer R.B. to an Appropriate Treatment Facility (Redacted Memorandum) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate, # 2 Placeholder for Defendants' Response to Plaintiffs' Motion to Immediately Transfer R.B.)(Brennaman, Nathan) Sealed documents received on 6/18/2014 (JGK). (Entered: 06/18/2014)
496 AFFIDAVIT of Nancy Johnston in OPPOSITION TO 478 MOTION to Immediately Transfer R.B. to an Appropriate Treatment Facility Redacted Affidavit and Exhibits filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Placeholder for

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Affidavit of Nancy Johnston, # 2 Placeholder for Exhibits 1, 2, and 3 to Affidavit of Nancy Johnston)(Brennaman, Nathan) Sealed documents received on 6/18/2014 (JGK). (Entered: 06/18/2014)
497 AFFIDAVIT of Jannine Hebert in OPPOSITION TO 478 MOTION to Immediately Transfer R.B. to an Appropriate Treatment Facility Filed Under Seal filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Placeholder for Affidavit of Jannine Hebert (filed under seal), # 2 Exhibit(s) A, # 3 Placeholder for Exhibit B to Jannine Hebert Affidavit (filed under seal))(Brennaman, Nathan) Sealed documents received on 6/18/2014 (JGK). (Entered: 06/18/2014)
498 CERTIFICATE OF SERVICE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 497 Affidavit in Opposition to Motion, 495 Memorandum in Opposition to Motion, 496 Affidavit in Opposition to Motion, (Brennaman, Nathan) (Entered: 06/18/2014)
499 TEXT ONLY ORDER. The Hennepin County Attorney has filed a motion for leave to submit a short amicus memorandum (Doc. No. 490 ) relating to the Court's June 2, 2014 Order to Show Cause why E.T. should not be immediately released from MSOP (Doc. No. 468 ). The parties do not object to the motion. (Doc. Nos. 493 and 494 .) As such, the motion for leave to file an amicus brief (Doc. No. 490 ) is hereby GRANTED. The Hennepin County Attorney shall file an amicus memorandum, not to exceed 10 pages, by noon on June 23, 2014. Signed by Judge Donovan W. Frank on 6/18/2014. (BJS) (Entered: 06/18/2014)
500 RESPONSE re 485 Response, to Order to Show Cause filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate, # 2 Certificate of Service)(Gustafson, Daniel) SEALED DOCUMENTS RECEIVED IN CLERK'S OFFICE on 6/19/2014 (TSS). (Entered: 06/18/2014)
501 MEMORANDUM by Hennepin County re 468 Order to Show Cause, Amicus Curiae Memorandum of Hennepin County Attorney filed by Hennepin County. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Kirwin, John) (Entered: 06/19/2014)
502 ORDER FOR REASSIGNMENT OF RELATED CASES that 14−cv−2002(ADM/FLN) has been reassgined to Judge Donovan W. Frank and Magistrate Judge Jeffrey J. Keyes. Signed by Judge Donovan W. Frank on 6/20/2014 and Judge Ann D. Montgomery 6/23/2014. (las) (Entered: 06/23/2014)
503 Supplemental AFFIDAVIT of Dr. Elizabeth J. Barbo re 485 Response, PUBLIC VERSION by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 06/23/2014)
504 Supplemental AFFIDAVIT of Dr. Elizabeth J. Barbo PLACEHOLDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) Sealed document received on 6/23/2014 (JGK). (Entered: 06/23/2014)
505 Supplemental AFFIDAVIT of Nancy Johnston PUBLIC VERSION by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Placeholder for Exhibit A)(Brennaman, Nathan) Sealed document received on 6/23/2014 (JGK). (Entered: 06/23/2014)
506 Supplemental AFFIDAVIT of Nancy Johnston re 485 Response, PLACEHOLDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Placeholder for Exhibit A)(Brennaman, Nathan) (Entered: 06/23/2014)
507 CERTIFICATE OF SERVICE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 504 Affidavit, 505 Affidavit, 506 Affidavit, (Brennaman, Nathan) (Entered: 06/23/2014)
508 ORDER. Pursuant to and under the terms of the Order of March 17, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $3,859.00 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 6/23/2014.

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(Attachments: # 1 Attachment A)(BJS) cc: Finance Dept. on 6/24/2014 (JAM). (Entered: 06/23/2014)
509 MEMORANDUM in Opposition re 469 MOTION for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 06/25/2014)
510 AFFIDAVIT of Anna Remiger in OPPOSITION TO 469 MOTION for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) A)(Brennaman, Nathan) (Entered: 06/25/2014)
549 Minute Entry for proceedings held before Judge Donovan W. Frank: Motion Hearing held on 6/25/2014 re 469 MOTION for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment filed by Bradley Wayne Foster, David Leroy Gamble, Jr., Craig Allen Bolte, Brian K. Hausfeld, Kaine Joseph Braun, Dennis Richard Steiner, James John Rud, Kenny S. Daywitt, Kevin John DeVillion, James Allen Barber, James Matthew Noyer, Sr., Christopher John Thuringer, Peter Gerard Lonergan, Kevin Scott Karsjens, 478 MOTION to Immediately Transfer R.B. to an Appropriate Treatment Facility filed by Bradley Wayne Foster, David Leroy Gamble, Jr., Craig Allen Bolte, Brian K. Hausfeld, Kaine Joseph Braun, Dennis Richard Steiner, James John Rud, Kenny S. Daywitt, Kevin John DeVillion, James Allen Barber, Christopher John Thuringer, James Matthew Noyer, Sr., Kevin Scott Karsjens, Peter Gerard Lonergan. Matters under advisement; written order to issue. (Court Reporter Jeanne Anderson) (BJS) (Entered: 07/10/2014)
511 STIPULATION re 486 Affidavit, 468 Order to Show Cause, by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Minnesota Department of Human Services, Minnesota Sex Offender Program, Kevin Moser, Ann Zimmerman. Jointly Signed by Plaintiffs. (Figueroa, Ricardo) (Entered: 06/26/2014)
512 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Minnesota Department of Human Services, Minnesota Sex Offender Program, Kevin Moser, Ann Zimmerman re 511 Stipulation, (Figueroa, Ricardo) (Entered: 06/26/2014)
513 ORDER APPROVING THE LIMITED UNSEALING OF RECORDS RELATED TO E.T. Signed by Magistrate Judge Jeffrey J. Keyes on 6/27/14. (AKL) (Entered: 06/27/2014)
514 TEXT ONLY ORDER: The Court will conduct hearings in Scott Karsjens, et al. v. Minnesota Department of Human Services, et al., 11−CV−3659 (DWF/JJK), E.T. v. Lucinda Jesson, 14−CV−2002 (DWF/JJK), and any other matter deemed related, on Monday and Tuesday, July 14 & 15, 2014, at 9:00 AM in Courtroom 7C, St. Paul, before the Honorable Donovan W. Frank and the Honorable Jeffrey J. Keyes. SO ORDERED. Signed by Judge Donovan W. Frank on 6/27/2014.(BJS) (Entered: 06/27/2014)
515 ORDER FOR REASSIGNMENT OF RELATED CASES that 14−cv−2362(RHK/LIB) has been reassgined to Judge Donovan W. Frank and Magistrate Judge Jeffrey J. Keyes. Signed by Judge Donovan W. Frank and Judge Richard H. Kyle on 06/27/2014. (TSS) (Entered: 06/27/2014)
516 ORDER. 1. An evidentiary hearing in the above−captioned matters shall be held on July 14−15, 2014. The hearing shall commence at 9:00 a.m. on July 14, 2014 in Courtroom 7C, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota. 2. All individuals who have issued reports regarding E.T. and R.B. in these matters shall be present to offer testimony at the hearing, unless otherwise agreed upon by the parties and approved by the Court. (See Order for additional information.) Signed by Judge Donovan W. Frank on 6/27/2014. (BJS) (Entered: 06/27/2014)

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517 STIPULATION Regarding the Second Amended Protective Order by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. Jointly Signed by Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Nancy Johnston, Jannine Hebert, and Ann Zimmerman. (Goodwin, David) (Entered: 07/01/2014)
518 SECOND AMENDED PROTECTIVE ORDER. Signed by Magistrate Judge Jeffrey J. Keyes on 7/1/14. (kt) (Entered: 07/01/2014)
519 ORDER APPROVING STIPULATION REGARDING THE SECOND AMENDED PROTECTIVE ORDER. Signed by Magistrate Judge Jeffrey J. Keyes on 7/1/14. (kt) (Entered: 07/01/2014)
520 MOTION for Leave to File Reply/SurreplyMotion of Hennepin County Attorney for Leave to File Second Amicus Memorandum by Hennepin County. (Kirwin, John) (Entered: 07/01/2014)
521 LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (re: Hennepin County Attorney's Request for Leave to File Second Brief of Amicus Curiae). (Gustafson, Daniel) (Entered: 07/01/2014)
522 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (regarding Hennepin County's Motion to File Second Amicus Memorandum). (Ikeda, Scott) (Entered: 07/02/2014)
523 DOCUMENT FILED IN ERROR: NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (JMA) Modified on 7/2/2014 (TSS). (Entered: 07/02/2014)
524 DOCUMENT FILED IN ERROR: NOTICE NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (JMA) Modified on 7/2/2014 (TSS). (Entered: 07/02/2014)
525 **TEXT ONLY ENTRY ORDER. The Hennepin County Attorney has filed a motion for leave to file a second amicus memorandum (Doc. No. 520 ) relating to the Court's Order to Show Cause why E.T. should not be immediately released from MSOP (Doc. No. 468 ). The parties do not object to the motion (Doc. Nos. 521 and 522 ). As such, the motion for leave to file a second amicus memorandum (Doc. No. 520 ) is hereby GRANTED. The Hennepin County Attorney shall file a second amicus memorandum, not to exceed 10 pages, by 12:00 noon on July 9, 2014. Signed by Judge Donovan W. Frank on 07/02/2014. (RLB) (Entered: 07/02/2014)
526 MOTION for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. Section 253D.35 by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 07/02/2014)
527 MEMORANDUM in Support re 526 MOTION for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. Section 253D.35 filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 07/02/2014)
528 Declaration of Daniel E. Gustafson in Support of 526 MOTION for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. Section 253D.35 filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) 1)(Gustafson, Daniel) (Entered: 07/02/2014)
529 MEET and CONFER STATEMENT re 526 Motion for Miscellaneous Relief, filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 07/02/2014)

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530 CERTIFICATE OF SERVICE ON PROPOSED ORDER by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 526 MOTION for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. Section 253D.35 (Gustafson, Daniel) (Entered: 07/02/2014)
531 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (JMA) (Entered: 07/03/2014)
532 TRANSCRIPT of Motions Hearing held on 06/25/2014 before Judge Donovan W. Frank. (89 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov. Telephone: (651) 848−1221). Redaction Request due 7/24/2014. Redacted Transcript Deadline set for 8/4/2014. Release of Transcript Restriction set for 10/1/2014. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 07/03/2014)
533 **TEXT ONLY ENTRY ORDER. Plaintiffs have filed a Motion for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. Section 253D.35 (Doc. No. 526 ). Defendants shall file a response to this motion by 5:00 p.m. on July 8, 2014. Signed by Judge Donovan W. Frank on 07/03/2014. (RLB) (Entered: 07/03/2014)
534 NOTICE OF ATTORNEY APPEARANCE/SUBSTITUTION for Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Winter, Aaron) (Entered: 07/07/2014)
535 RECEIPT number 00422941 in the amount of $3,859.00. (kt) (QC'd by akl on 7/10/14) (Entered: 07/07/2014)
536 STIPULATION To Transport E.T. and R.B. To July 14 & 15, 2014 Hearing by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 07/08/2014)
537 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 536 Stipulation (Brennaman, Nathan) (Entered: 07/08/2014)
538 ORDER that 1. The Minnesota Sex Offender Program shall transport E.T. and R.B. to Courtroom 7C, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota, for attendance at the evidentiary hearing scheduled to commence on July 14, 2014, at 9:00 a.m.2. The Minnesota Sex Offender Program shall maintain custody over E.T. and R.B. at all times and shall return E.T. and R.B. upon completion of these proceedings. Signed by Magistrate Judge Jeffrey J. Keyes on 7/8/14. (kt) (Entered: 07/08/2014)
539 MEMORANDUM in Opposition re 526 MOTION for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. Section 253D.35 filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Ikeda, Scott) (Entered: 07/08/2014)
540 AFFIDAVIT of Dr. Elizabeth J. Barbo in OPPOSITION TO 526 MOTION for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. Section 253D.35 filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Ikeda, Scott) (Entered: 07/08/2014)
541 MOTION in Limine For an Order Defining the Purpose and Scope of the July 14 & 15, 2014 Evidentiary Hearing by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 07/08/2014)
542 NOTICE OF HEARING ON MOTION 541 MOTION in Limine For an Order Defining the Purpose and Scope of the July 14 & 15, 2014 Evidentiary Hearing : at date and time to be determined. (Brennaman, Nathan) (Entered: 07/08/2014)
543 MEET and CONFER STATEMENT re 541 Motion in Limine filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin

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Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 07/08/2014)
544 MEMORANDUM in Support re 541 MOTION in Limine For an Order Defining the Purpose and Scope of the July 14 & 15, 2014 Evidentiary Hearing filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 07/08/2014)
545 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 541 MOTION in Limine For an Order Defining the Purpose and Scope of the July 14 & 15, 2014 Evidentiary Hearing (Brennaman, Nathan) (Entered: 07/08/2014)
546 MEMORANDUM by Hennepin County re 468 Order to Show Cause, Second Amicus Curiae Memorandum of Hennepin County Attorney (Addressing Release Procedures) filed by Hennepin County. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Kirwin, John) (Entered: 07/09/2014)
547 REPLY re 469 MOTION for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate) SEALED DOCUMENT RECEIEVED IN CLERKS OFFICE ON 7/9/14. (Gustafson, Daniel) Modified on 7/10/2014 (AKL). (Entered: 07/09/2014)
548 CERTIFICATE OF SERVICE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 547 Reply (Gustafson, Daniel) (Entered: 07/09/2014)
550 ORDER DEFINING THE PURPOSE AND SCOPE OF THE JULY 14 & 15, 2014 EVIDENTIARY HEARING. 1. Defendants' Motion in Limine for an Order Defining the Purpose and Scope of the July 14 & 15, 2014 Evidentiary Hearing (Karsjens, Civ. No. 11−3659, Doc. No. 541 ), is GRANTED IN PART. The evidentiary hearing scheduled for July 14 and 15, 2014, is limited in scope to evidence relating to the opinions of all individuals, including the Rule 706 experts, who have issued reports or filed affidavits on E.T. and R.B in relation to the Karsjens § 1983 action. The evidence received at this hearing can be used, if relevant, to evaluate the class action claims in the Karsjens § 1983 action. The Court reserves the right to preserve the evidence insofar as it may pertain to the habeas matters. 2. Following the testimony as described in paragraph 1, the Court will hear argument from counsel in the Karsjens § 1983 action on Plaintiffs Motion for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. § 253D.35 (Doc. No. 526), and separately will hear argument from the parties on the two habeas petitions in Civ. No. 14−2002 and Civ. No. 14−2362, including any argument on the exhaustion issues. 3. At the hearing, the Court would also like an update from counsel regarding E.T.'s July 2, 2014 SRB hearing, and an update on the current status of E.T. and R.B.s residence and living situation. Counsel should also be prepared to discuss modifying the schedule in the Karsjens § 1983 action. (Written Opinion). Signed by Judge Donovan W. Frank on 7/10/2014. (BJS) (Entered: 07/10/2014)
551 Witness List by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 07/10/2014)
552 Exhibit List (Defendants' Exhibit List for July 14−15 Evidentiary Hearing) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 07/10/2014)
553 Witness List by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 07/10/2014)

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554 Exhibit List by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 07/10/2014)
555 Exhibit List (Amended) by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 07/11/2014)
556 Exhibit List (Second Amended) by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 07/13/2014)
557 Minute Entry for proceedings held before Judge Donovan W. Frank and Magistrate Judge Jeffrey J. Keyes: Evidentiary Hearing held on 7/14/2014. Defendants' witnesses: Robin Wilson, Deb McCulloch, Michael Miner. Hearing continued to 07/15/2014 at 9:00 AM. (Court Reporter Jeanne Anderson) (BJS) (Entered: 07/15/2014)
558 Minute Entry for proceedings held before Judge Donovan W. Frank: Evidentiary Hearing held on 7/15/2014. Witnesses: Michael Miner, Naomi Freeman, Nancy Johnston. Closing arguments; written order to be issued. (Court Reporter Jeanne Anderson) (BJS) (Entered: 07/16/2014)
559 Court Exhibit List from Evidentiary Hearings of 7/14/2014 and 7/15/2014.(BJS) (Entered: 07/16/2014)
560 REPLY re 526 MOTION for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. Section 253D.35 filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 07/17/2014)
561 ORDER. Pursuant to and under the terms of the Order of March 17, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $6,966.00 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 7/18/2014. (Attachments: # 1 Attachment A)(BJS) cc: Financial on 7/21/2014 (JAM). (Entered: 07/18/2014)
562 ORDER. Pursuant to and under the terms of the Order of March 17, 2014 (Doc. No. 434), the Clerk shall forthwith issue checks to: 1. Naomi Freeman in the amount of $27,122.25; 2. Deborah McCulloch in the amount of $32,160.75; 3. Michael Miner in the amount of $21,606.28; and 4. Robin J. Wilson in the amount of $20,258.75. The checks are to be drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 7/18/2014. (Attachments: # 1 Attachment A)(BJS) cc: Financial on 7/21/2014 (JAM). (Entered: 07/18/2014)
563 ORDER FOR REASSIGNMENT OF RELATED CASES that Case No. 14−CV−896 (JRT/TNL) be assigned to Judge Donovan W. Frank and Magistrate Judge Tony N. Leung. Signed by Judge Donovan W. Frank and Judge John R. Tunheim on 7/21/14. (JME) (Entered: 07/21/2014)
564 TEXT ONLY ENTRY: NOTICE of Setting Hearing: Scheduling Status Conference set for 8/26/2014 04:00 PM in Courtroom 7C (STP) before Judge Donovan W. Frank and Magistrate Judge Jeffrey J. Keyes. (BJS) (Entered: 07/22/2014)
565 AMENDED ORDER FOR REASSIGNMENT OF RELATED CASES that 14−cv−896 (JRT/TNL) has been reassigned to Judge Donovan W. Frank and Magistrate Judge Jeffrey J. Keyes. Signed by Judge Donovan W. Frank and Judge John R. Tunheim on 07/22/2014. (lmb) (Entered: 07/22/2014)
566 TEXT ONLY ENTRY: NOTICE of Rescheduling Hearing: Scheduling Status Conference now set for 8/21/2014 08:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (BJS) (Entered: 07/23/2014)

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567 REPLY re 526 MOTION for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. Section 253D.35 (Defendants' Surreply to Motion for Aftercare Plan) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 07/25/2014)
568 NOTICE of Filing of Official Transcript. This filing has 2 transcript(s) associated with it. (JMA) (Entered: 07/30/2014)
569 TRANSCRIPT of Evidentiary Hearing − Day One held on 07/14/2014 before Judge Donovan W. Frank. (193 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov. Telephone: (651) 848−1221). Redaction Request due 8/20/2014. Redacted Transcript Deadline set for 9/2/2014. Release of Transcript Restriction set for 10/28/2014. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 07/30/2014)
570 TRANSCRIPT of Evidentiary Hearing − Day Two, held on 07/15/2014 before Judge Donovan W. Frank. (210 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov. Telephone: (651) 848−1221). Redaction Request due 8/20/2014. Redacted Transcript Deadline set for 9/2/2014. Release of Transcript Restriction set for 10/28/2014. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 07/30/2014)
571 MEMORANDUM in Support re 469 MOTION for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment (Redacted Version) filed by All Plaintiffs. (Gustafson, Daniel). Modified text on 8/1/2014 (TSS). (Entered: 07/31/2014)
572 MEMORANDUM in Support re 478 MOTION to Immediately Transfer R.B. to an Appropriate Treatment Facility (Redacted Version) filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 07/31/2014)
573 RESPONSE in Opposition 500 Response to the Court's June 2, 2014 Order to Show Cause − Redacted Version filed by All Plaintiffs. (Gustafson, Daniel) Modified on 7/31/2014 (kt). (Entered: 07/31/2014)
574 REPLY in Support re 469 MOTION for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment filed by All Plaintiffs − Redacted Version filed by All Plaintiffs. (Gustafson, Daniel) Modified on 7/31/2014 (kt). (Entered: 07/31/2014)
575 RECEIPT number 00424248 in the amount of $32,160.75. (kt) (Entered: 08/01/2014)
576 RECEIPT number 424217 in the amount of $21606.28. (kt) (Entered: 08/01/2014)
577 RECEIPT number 424258 in the amount of $20,258.75. (kt) (Entered: 08/01/2014)
578 Amended MOTION for Declaratory Judgment and to Immediately Transfer R.B. to an Appropriate Treatment Facility re 478 MOTION to Immediately Transfer R.B. to an Appropriate Treatment Facility by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 08/04/2014)
579 RECEIPT number 00424213 in the amount of $6,966.00. (kt)DOCUMENT QC'D ON 8/7/14 LGL Modified on 8/7/2014 (LGL). (Entered: 08/07/2014)
580 MEMORANDUM OPINION AND ORDER. 1. Plaintiff's Motion for Declaratory Judgment and to Immediately Discharge E.T. from Civil Commitment (Doc. No. 469 ) is DENIED WITHOUT PREJUDICE; 2. Plaintiffs' Motion for the Creation of an Aftercare Plan for E.T. Pursuant to Minn. Stat. § 253D.35 (Doc. No. 526 ) is DENIED WITHOUT PREJUDICE; 3. Plaintiffs' Amended Motion for Declaratory Judgment and to Immediately Transfer R.B. to an Appropriate Treatment Facility (Doc. No. 578 ) is DENIED WITHOUT PREJUDICE; 4. Eric Terhaar's federal habeas case (Civ. No. 14−2002 (DWF/JJK)) is STAYED; 5. Rhonda Bailey's federal habeas case (Civ. No. 14−2362 (DWF/JJK)) is STAYED; 6. The parties shall meet with the Court on August 21, 2014, as previously scheduled (see Doc. No. 566), to discuss moving the

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trial date in this case to a date in 2014. (Written Opinion). Signed by Judge Donovan W. Frank on 8/11/2014. (BJS) (Entered: 08/11/2014)
581 NOTICE OF ATTORNEY APPEARANCE/SUBSTITUTION for Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Welle, Adam) (Entered: 08/11/2014)
582 LETTER from Judge Donovan W. Frank with copy of Rule 706 Expert Report attached. (Attachment: # 1 Attachment A)(BJS) (Entered: 08/14/2014)
583 TEXT ONLY ENTRY: AMENDED NOTICE of Hearing: Scheduling Status Conference set for 8/21/2014 will now start at 09:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (BJS) (Entered: 08/19/2014)
584 RECEIPT number 00424251 in the amount of $27,122.25. (kt)DOCUMENT QC'D ON 8/21/14 LGL Modified on 8/21/2014 (LGL). (Entered: 08/21/2014)
585 NOTICE of Scheduling Conference set for 9/9/2014 11:00 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (kt) (Entered: 08/21/2014)
586 Minute Entry for proceedings held before Judge Donovan W. Frank: Scheduling Status Conference held on 8/21/2014. The Court requested simultaneous briefing to be filed by August 29, 2014, on the Seventh Amendment right to a jury trial. The report from the 706 Experts is due on November 15, 2014. The trial in this matter is set for February 9, 2015. No written order to issue. (Court Reporter Jeanne Anderson) (BJS) (Entered: 08/22/2014)
587 ORDER. 1. The Court respectfully requests the Rule 706 experts to complete their report by November 15, 2014, given the trial date that is currently set for February 9, 2015. 2. The Court respectfully directs that this Order be provided to the Rule 706 experts by e−mail in addition to an e−filing. Signed by Judge Donovan W. Frank on 8/25/2014. (BJS) (Entered: 08/25/2014)
588 ORDER. The Clerk shall forthwith issue a check to David Ferleger in the amount of $9,559 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 08/26/2014. (Attachments: # 1 Exhibit(s) Attachment A)(RLB) cc: financial unit on 8/27/2014 (JAM). (Entered: 08/27/2014)
589 MEMORANDUM by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (Defendants' Memorandum of Law in Support of Its Jury Trial Demand) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 08/29/2014)
590 MEMORANDUM by All Plaintiffs (Plaintiffs' Memorandum in Support of Plaintiffs' Request for a Bench Trial for the First Phase of Trial) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 08/29/2014)
591 Declaration of Daniel E. Gustafson in Support of 590 Memorandum, filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A−B)(Gustafson, Daniel) (Entered: 08/29/2014)
592 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (JMA) (Entered: 09/02/2014)
593 TRANSCRIPT of Scheduling Status Conference held on 08/21/2014 before Judge Donovan W. Frank and Magistrate Judge Jeffrey J. Keyes. (69 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov. Telephone: (651) 848−1221). Redaction Request due 9/23/2014. Redacted Transcript Deadline set for 10/3/2014. Release of Transcript Restriction set for 12/1/2014. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 09/02/2014)
594 MEMORANDUM by All Plaintiffs re 589 Memorandum, (Plaintiffs' Opposition to Defendants' Request for a Jury Trial) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered:

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09/02/2014)
595 RESPONSE re 590 Memorandum, (to Plaintiffs' Memorandum Regarding Defendants' Right to a Jury Trial) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 09/02/2014)
596 RECEIPT number 00425777 in the amount of $9,559.00. (kt)DOCUMENT QC'D ON 9/5/14 LGL Modified on 9/5/2014 (LGL). (Entered: 09/05/2014)
597 ORDER. Pursuant to and under the terms of the Order of March 17, 2014 (Doc. No. 434), the Clerk shall forthwith issue checks to: 1. Naomi Freeman in the amount of $44,309.68; 2. Deborah McCulloch in the amount of $37,196.28; 3. Michael Miner in the amount of $29,726.97; and 4. Robin J. Wilson in the amount of $38,995.14. The checks are to be drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 9/8/2014. (Attachments: # 1 Attachment A)(BJS) cc: Finance on 9/9/2014 (JAM). (Entered: 09/08/2014)
598 ORDER. IT IS HEREBY ORDERED that Defendants' request for a jury trial for Phase One 589 is DENIED and Plaintiffs' request for a bench trial for Phase One 590 is GRANTED. (Written Opinion.) Signed by Judge Donovan W. Frank on 09/09/2014. (RLB) (Entered: 09/09/2014)
599 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Initial Pretrial Conference held on 9/9/2014. Order to issue. (LPH) (Entered: 09/09/2014)
600 AMENDED SCHEDULING ORDER: Discovery due by 11/14/2014. Ready for trial due by 2/9/2015. Signed by Magistrate Judge Jeffrey J. Keyes on 9/10/14. (kt) (Entered: 09/10/2014)
601 RECEIPT number 00426378 in the amount of $37,196.28. (kt)DOCUMENT QC'D ON 9/18/14 LGL Modified on 9/18/2014 (LGL). (Entered: 09/18/2014)
602 STIPULATION Regarding Privileged and Confidential Information by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. Jointly Signed by Kevin Karsjens, David Gamble, Jr., Kevin DeVillion,, Peter Lonergan, James Noyer, James Rud, James Barber, Craig Bolte, Dennis Steiner, and Kaine Braun, Christopher Thuringer, Kenny Daywitt, Bradley Foster, Brian Hausfeld. (Welle, Adam) (Entered: 09/18/2014)
604 RECEIPT number 426348 in the amount of $29,726.97. (kt)DOCUMENT QC'D ON 9/23/14 LGL Modified on 9/23/2014 (LGL). (Entered: 09/19/2014)
605 RECEIPT number 426387 in the amount of $38,995.14. (kt)DOCUMENT QC'D ON 9/23/14 LGL Modified on 9/23/2014 (LGL). (Entered: 09/19/2014)
603 REPORT (Plaintiffs' Proposal for Presentation of Evidence for Phase One Trial) by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 09/19/2014)
606 ORDER REGARDING PRIVILEGED AND CONFIDENTIAL INFORMATION. Signed by Magistrate Judge Jeffrey J. Keyes on 9/22/14. (kt) (Entered: 09/22/2014)
607 REPORT (Plaintiffs' Proposal for Issues to be Resolved by the Court Prior to Trial) by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 09/26/2014)
608 OBJECTION re 603 Report, Defendants' Objections to Plaintiffs' Proposal for Presentation of Evidence for Phase One Trial) filed by Tom Lundquist, Lucinda Jesson, Kevin Moser, Nancy Johnston, Ann Zimmerman, Dennis Benson, Jannine Hebert. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance

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Certificate)(Brennaman, Nathan) Modified on 9/26/2014 (AKL). (Entered: 09/26/2014)
609 AFFIDAVIT of Nathan Brennaman re 608 Objection, by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) A−C)(Brennaman, Nathan) (Entered: 09/26/2014)
610 LETTER TO MAGISTRATE JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (Plaintiffs' Motion to Compel). (Attachments: # 1 Exhibit(s) 1−20, # 2 Exhibit(s) 21−41)(Gustafson, Daniel) (Entered: 09/29/2014)
611 NOTICE OF HEARING ON MOTION (Plaintiffs' Motion to Compel) Motion Hearing set for 10/3/2014 09:30 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (Gustafson, Daniel) (Entered: 09/29/2014)
612 RECEIPT number 00426382 in the amount of $44309.68. (kt)DOCUMENT QC'D ON 9/30/14 LGL Modified on 9/30/2014 (LGL). (Entered: 09/30/2014)
613 TEXT ONLY ORDER: Pursuant to the Court's Amended Scheduling Order (Doc. No. 600 ), on September 26, 2014, Defendants filed objections to Plaintiffs' proposed Phase One trial issues (Doc. No. 608 ). Defendants' objections include "trial of any claim that is not in the Second Amended Complaint" and "an expedited trial to the extent it would include new claims." The Court orders Plaintiffs to file a response to Defendants' objections by Monday, October 6, 2014, addressing (1) whether and how Plaintiffs' proposed Phase One issues correspond to claims contained in the Second Amended Complaint; and (2) whether Plaintiffs intend to request leave to file a Third Amended Complaint. Signed by Judge Donovan W. Frank on 9/30/2014. (BJS) (Entered: 09/30/2014)
614 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Attachments: # 1 Affidavit of Aaron Winter, # 2 Exhibit(s) A−D)(Brennaman, Nathan) (Entered: 10/01/2014)
615 ORDER from the United States Court of Appeals for the Eighth Circuit: Counsel for the class representatives are hereby directed to file a response to the state defendants' petition for writ of mandamus. The response is due October 15, 2014. (kt) (Entered: 10/02/2014)
616 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Ikeda, Scott) (Entered: 10/02/2014)
617 NOTICE of Cancelation of Hearing: 611 NOTICE OF HEARING ON MOTION (Plaintiffs' Motion to Compel) Motion Hearing set for 10/3/2014 09:30 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (Gustafson, Daniel). (kt) (Entered: 10/03/2014)
618 ORDER APPROVING AGREEMENT REGARDING DOCUMENT PRODUCTION AND 30(b)(6) DEPOSITION re 610 Letter to Magistrate Judge. Signed by Magistrate Judge Jeffrey J. Keyes on 10/6/14. (LPH) (Entered: 10/06/2014)
619 ORDER. The Clerk shall forthwith issue a check to David Ferleger in the amount of $3,077.20 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 10/6/2014. (Attachments: # 1 Attachment A)(BJS) cc: Finance on 10/7/2014 (JAM). (Entered: 10/06/2014)
620 RESPONSE re 608 Objection, (Plaintiffs' Response to Defendants' Objections to Plaintiffs' Trial Issues) filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 10/06/2014)
621 Declaration of Daniel E. Gustafson in Support of 620 Response filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A)(Gustafson, Daniel) (Entered: 10/06/2014)

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622 MOTION to Alter/Amend/Supplement Pleadings (Plaintiffs' Motion for Leave to File a Third Amended Complaint and for Dismissal of Damages Claims without Prejudice) by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 10/15/2014)
623 MEMORANDUM in Support re 622 MOTION to Alter/Amend/Supplement Pleadings (Plaintiffs' Motion for Leave to File a Third Amended Complaint and for Dismissal of Damages Claims without Prejudice) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 10/15/2014)
624 NOTICE OF HEARING ON MOTION 622 MOTION to Alter/Amend/Supplement Pleadings (Plaintiffs' Motion for Leave to File a Third Amended Complaint and for Dismissal of Damages Claims without Prejudice) : Motion Hearing set for 10/28/2014 10:00 AM in Courtroom 6A (STP) before Magistrate Judge Jeffrey J. Keyes. (Gustafson, Daniel) (Entered: 10/15/2014)
625 Declaration of Daniel E. Gustafson in Support of 622 MOTION to Alter/Amend/Supplement Pleadings (Plaintiffs' Motion for Leave to File a Third Amended Complaint and for Dismissal of Damages Claims without Prejudice) filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A−I)(Gustafson, Daniel) (Entered: 10/15/2014)
626 MEET and CONFER STATEMENT re 622 Motion to Alter/Amend/Supplement Pleadings,, filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 10/15/2014)
627 CERTIFICATE OF SERVICE ON PROPOSED ORDER by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 622 MOTION to Alter/Amend/Supplement Pleadings (Plaintiffs' Motion for Leave to File a Third Amended Complaint and for Dismissal of Damages Claims without Prejudice) (Gustafson, Daniel) (Entered: 10/15/2014)
628 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Winter, Aaron) Modified text on 10/16/2014 (LPH). (Entered: 10/15/2014)
629 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Winter, Aaron) (Entered: 10/16/2014)
630 RECEIPT number 427565 in the amount of $3,077.20. (kt)DOCUMENT QC'D ON 10/21/14 LGL Modified on 10/21/2014 (LGL). (Entered: 10/20/2014)
631 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Winter, Aaron) (Entered: 10/20/2014)
632 MOTION to Appear as Amicus Curiae by INTERNATIONAL HUMANITARIAN LAW INSTITUTE. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) Cover Letter)(Nickitas, Peter) (Entered: 10/22/2014)
633 RESPONSE in Opposition re 622 MOTION to Alter/Amend/Supplement Pleadings (Plaintiffs' Motion for Leave to File a Third Amended Complaint and for Dismissal of Damages Claims without Prejudice) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 10/22/2014)
634 SECOND AMENDED ORDER. 1. Stay of All Cases Pending Resolution of the Karsjens Litigation. All current and future civil rights cases brought by an individual or group of individuals who has or have been civilly committed to the MSOP that are sufficiently related to Karsjens, are hereby STAYED in all respects, pending

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resolution of the Karsjens litigation, or until further order of the Court. 2. Service. The Clerk of the United States District Court for the District of Minnesota is respectfully directed to file this Order in each stayed case and provide a copy of this Order, via United States mail, to every Plaintiff in all of the cases that are stayed. Signed by Chief Judge Michael J. Davis on 10/27/2014. (BJS) (Entered: 10/27/2014)
635 AMENDED COMPLAINT (Third Amended Complaint) against Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. Filed by James Allen Barber, David Leroy Gamble, Jr, Kevin Scott Karsjens, Bradley Wayne Foster, Kaine Joseph Braun, Brian K. Hausfeld, Kenny S. Daywitt, James John Rud, Kevin John DeVillion, Dennis Richard Steiner, Christopher John Thuringer, Craig Allen Bolte, Peter Gerard Lonergan, James Matthew Noyer, Sr. No summons requested. (Gustafson, Daniel) (Entered: 10/28/2014)
636 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: granting 622 Motion to Alter/Amend/Supplement Pleadings. (kt) (Entered: 10/28/2014)
637 TEXT ONLY ORDER by Magistrate Judge Jeffrey J. Keyes that (I) As stated on the record, Plaintiffs Motion for Leave to File a Third Amended Complaint and For Dismissal of Damages Claims Without Prejudice (Doc. No. 622), is GRANTED to the extent that Plaintiffs may file a Third Amended Complaint as proposed. Defendants' request for the Court to condition granting the motion to amend on dismissing the damages claims with prejudice is denied. This Court renders no opinion as to whether future claims made by individual Plaintiffs would be tolled.(II) This Minute Order constitutes an Order of the Court.(kt) (Entered: 10/28/2014)
638 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Telephone Conference held on 10/31/2014. (kt) (Entered: 10/31/2014)
639 TEXT ONLY ORDER by Magistrate Judge Jeffrey J. Keyes that (I) As stated on the record, Defendants may audio and videotape some group treatmentsessions of the Class members. The audio and videotapes shall be made availableunder the Protective Order with appropriate designation to the parties' experts and theRule 706 experts upon request. Notice of the sessions to be taped shall be providedbeforehand to Plaintiffs' counsel.(II) This Minute Order constitutes an Order of the Court.(kt) (Entered: 10/31/2014)
640 LETTER TO DISTRICT JUDGE: RESPONSE re 632 MOTION to Appear as Amicus Curiae filed by All Plaintiffs. (Gustafson, Daniel) Modified text on 11/4/2014 (lmb). (Entered: 11/04/2014)
641 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (LAS) (Entered: 11/05/2014)
642 TRANSCRIPT of Motions Hearing held on 10/28/2014 before Magistrate Judge Jeffrey J. Keyes. (31 pages). Transcriber: Lori Simpson (E−mail: Lori_Simpson@mnd.uscourts.gov. Telephone: (612) 664−5104). Redaction Request due 11/26/2014. Redacted Transcript Deadline set for 12/8/2014. Release of Transcript Restriction set for 2/3/2015. For information on redaction procedures, please review Local Rule 5.5. (LAS) (Entered: 11/05/2014)
643 RESPONSE re 632 MOTION to Appear as Amicus Curiae (Letter Response to Motion to File Amicus Curiae Trial Brief) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Ikeda, Scott) (Entered: 11/06/2014)
644 STIPULATION Regarding Limited Extension of the Discovery Deadline by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. Jointly Signed by Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Nancy Johnston, Jannine Hebert, and Ann Zimmerman. (Gustafson, Daniel) (Entered: 11/06/2014)
646 USCA MANDATE from the United States Court of Appeals for the Eighth Circuit. Formal mandate issued. (kt) (Entered: 11/07/2014)

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645 USCA JUDGMENT from the United States Court of Appeals for the Eighth Circuit: Petition for Writ of Mandamus has been considered by the court and is denied. Mandate shall issue forthwith. (kt) (Entered: 11/07/2014)
647 FINAL PRETRIAL ORDER. (See Order for deadlines and details.) Signed by Judge Donovan W. Frank on 11/7/2014. (BJS) (Entered: 11/07/2014)
648 TEXT ONLY ORDER: The International Humanitarian Law Institute (IHLI) has filed a motion for leave to submit an amicus brief regarding the right to a jury trial in civil commitment proceedings (Doc. No. 632 ). Although the parties do not formally object to IHLI's motion, both parties contend that the subject matter of the proposed amicus brief is not within the scope of the current litigation (Doc. Nos. 640 and 643 ). The Court concludes that the proposed amicus brief seeks to address issues that are not presently before the Court in this case. Accordingly, the motion for leave to file an amicus brief (Doc. No. 632 ) is hereby DENIED. Signed by Judge Donovan W. Frank on 11/7/2014. (BJS) (Entered: 11/07/2014)
649 ORDER: 1. The discovery deadline will be extended beyond November 14, 2014, for the limited purpose of completing the depositions of Defendants Nancy Johnston and Jannine Hbert and to allow Plaintiffs responses to Defendants' Third Set of Interrogatories and Document Requests; 2. These depositions will be scheduled for dates that are mutually agreeable to the Parties, but in no event shall they be completed later than November 26, 2014; 3. The report generated by the court−appointed experts that is due to be issued on November 15, 2014, shall not be an exhibit to, asked about, or discussed in the depositions of Ms. Johnston or Ms. Hbert. Signed by Magistrate Judge Jeffrey J. Keyes on 11/7/14. (kt) (Entered: 11/07/2014)
650 APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge re 636 Order on Motion to Alter/Amend/Supplement Pleadings, Motion Hearing (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 11/10/2014)
651 MOTION to Dismiss/General (Defendants' Partial Motion to Dismiss Third Amended Complaint) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 11/12/2014)
652 NOTICE OF HEARING ON MOTION 651 MOTION to Dismiss/General (Defendants' Partial Motion to Dismiss Third Amended Complaint) : at date and time to be determined. (Brennaman, Nathan) (Entered: 11/12/2014)
653 MEMORANDUM in Support re 651 MOTION to Dismiss/General (Defendants' Partial Motion to Dismiss Third Amended Complaint) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 11/12/2014)
654 MEET and CONFER STATEMENT re 651 Motion to Dismiss/General filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 11/12/2014)
655 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 651 MOTION to Dismiss/General (Defendants' Partial Motion to Dismiss Third Amended Complaint) (Brennaman, Nathan) (Entered: 11/12/2014)
656 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Ikeda, Scott) (Entered: 11/14/2014)
657 LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (Response to Defendants' November 14, 2014 Letter). (Gustafson, Daniel) (Entered: 11/17/2014)

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658 RULE 706 EXPERT REPORT AND RECOMMENDATIONS. (BJS) (Entered: 11/18/2014)
659 RESPONSE re 650 APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge re 636 Order on Motion to Alter/Amend/Supplement Pleadings, Motion Hearing filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 11/19/2014)
660 TEXT ONLY ORDER. On November 12, 2014, counsel for Defendants called the Court to request an expedited hearing on their Partial Motion to Dismiss (Doc. No. 651 ). In response to the request, the Court directed Defendants to "file a two−page letter outlining their request for the expedited hearing" and allowed Plaintiffs an opportunity to respond to the request. On November 14, 2014, Defendants filed a letter to the Court in which they appear to rescind their request for an expedited hearing. (Doc. No. 656 .) The Court respectfully directs the parties to the Final Pretrial Order (Doc. No. 647 ) scheduling provisions, which contemplates hearing argument on dispositive motions on January 14, 2015 and ruling on the motions before the February 3, 2015 pretrial conference. Signed by Judge Donovan W. Frank on 11/20/2014. (BJS) (Entered: 11/20/2014)
661 LETTER TO MAGISTRATE JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer . (Gustafson, Daniel) (Entered: 11/26/2014)
662 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (response to Doc. 661). (Ikeda, Scott) (Entered: 11/26/2014)
663 NOTICE of Phone Conference set for 12/2/2014 04:30 PM before Magistrate Judge Jeffrey J. Keyes. (kt) (Entered: 12/01/2014)
664 LETTER TO MAGISTRATE JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer . (Attachments: # 1 Exhibit(s) A)(Gustafson, Daniel) (Entered: 12/01/2014)
665 ORDER. 1. Defendants' objections (Doc. No. 650 ) to Magistrate Judge Jeffrey J.Keyes's October 28, 2014 Order are OVERRULED. 2. Magistrate Judge Jeffrey J. Keyes's October 28, 2014 Order (Doc. No. 636 ) is AFFIRMED. (Written Opinion). Signed by Judge Donovan W. Frank on 12/01/2014. (BJS) (Entered: 12/01/2014)
666 LETTER TO MAGISTRATE JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (re: Document Production). (Gustafson, Daniel) (Entered: 12/01/2014)
667 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (Defs' response to Plaintiffs' 12−1−14 ltr to Court). (Ikeda, Scott) (Entered: 12/02/2014)
668 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Attachments: # 1 Exhibit(s) 1)(Ikeda, Scott) (Entered: 12/02/2014)
669 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Telephone Conference held on 12/2/2014. (kt) (Entered: 12/03/2014)
670 TEXT ONLY ENTRY: Oral ORDER by Magistrate Judge Jeffrey J. Keyes that (I) As stated on the record, Plaintiffs letter request (Doc. No. 664), is DENIED. (II) In response to Plaintiffs letter request at Doc. No. 666 and Defendants' response at Doc. No. 667, Plaintiffs shall submit their short letter brief on the issue no later than noon CST on Wednesday, December 3, 2014, and Defendants shall submit their short letter

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brief in response no later than noon CST on Friday, December 5, 2014. After reading Defendants' response, Plaintiffs shall notify the Court as to whether the issue is resolved or whether they would like a phone hearing scheduled with the Court. (III) This Minute Order constitutes an Order of the Court. (kt) (Entered: 12/03/2014)
671 LETTER TO MAGISTRATE JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (re: Document Production). (Attachments: # 1 Exhibit(s) A−F, # 2 Exhibit(s) G−H, # 3 Exhibit(s) I, # 4 Exhibit(s) J−N, # 5 Exhibit(s) O−R)(Gustafson, Daniel) (Entered: 12/03/2014)
672 STIPULATION (re: Briefing Schedule for Defendants' Partial Motion to Dismiss the Third Amended Complaint) by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. Jointly Signed by Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Nancy Johnston, Jannine Hebert, and Ann Zimmerman. (Gustafson, Daniel) (Entered: 12/03/2014)
673 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (response − joint expert depositions). (Brennaman, Nathan) (Entered: 12/03/2014)
674 ORDER REGARDING BRIEFING SCHEDULE FOR DEFENDANTS' PARTIAL MOTION TO DISMISS THIRD AMENDED COMPLAINT. 1. Plaintiffs' brief in response to Defendants' Motion to Dismiss Third Amended Complaint (Doc. No. 651 ) shall be filed by December 16, 2014. 2. Defendants' reply brief regarding Defendants' Motion to Dismiss Third Amended Complaint (Doc. No. 651 ) shall be filed by December 30, 2014. Signed by Judge Donovan W. Frank on 12/4/2014. (BJS) (Entered: 12/04/2014)
675 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (document production). (Winter, Aaron) (Entered: 12/05/2014)
676 LETTER TO MAGISTRATE JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (re: Document Production). (Gustafson, Daniel) (Entered: 12/05/2014)
677 ORDER. Pursuant to and under the terms of the Order of March 17, 2014 (Doc. No. 434), the Clerk shall forthwith issue checks to: 1. Naomi Freeman in the amount of $35,850.00; 2. Deborah McCulloch in the amount of $37,063.44; 3. Michael Miner in the amount of $37,814.00; and 4. Robin J. Wilson in the amount of $36,450.00. The checks are to be drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 12/8/2014. (Attachment: # 1 Attachment A)(BJS) cc: Finance on 12/9/2014 (JAM). (Entered: 12/08/2014)
678 STIPULATION re 418 Scheduling Order STIPULATION TO A LIMITED EXTENSION OF THE NON−DISPOSITIVE MOTION DEADLINE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. Jointly Signed by Kevin Scott Karjens; 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; Brian Christopher John Thuringer; Kenny S. Daywitt, and Bradley Wayne Foster; Brian K. Hausfeld. (Winter, Aaron) (Entered: 12/09/2014)
679 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 678 Stipulation,, (Winter, Aaron) (Entered: 12/09/2014)

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680 ORDER APPROVING THE LIMITED EXTENSION OF THE NON−DISPOSITIVE MOTION DEADLINE. Signed by Magistrate Judge Jeffrey J. Keyes on 12/10/14. (kt) (Entered: 12/10/2014)
681 MOTION miscellaneous relief DEFENDANTS' MOTION SEEKING RELIEF FOR SPOLIATION by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Ikeda, Scott) (Entered: 12/10/2014)
682 NOTICE OF HEARING ON MOTION 681 MOTION miscellaneous relief DEFENDANTS' MOTION SEEKING RELIEF FOR SPOLIATION : Motion Hearing set for 12/15/2014 04:30 PM before Magistrate Judge Jeffrey J. Keyes. (Ikeda, Scott) (Entered: 12/10/2014)
683 MEMORANDUM in Support re 681 MOTION miscellaneous relief DEFENDANTS' MOTION SEEKING RELIEF FOR SPOLIATION filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Ikeda, Scott) (Entered: 12/10/2014)
684 AFFIDAVIT of SCOTT H. IKEDA in SUPPORT OF 681 MOTION miscellaneous relief DEFENDANTS' MOTION SEEKING RELIEF FOR SPOLIATION filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Ikeda, Scott) (Entered: 12/10/2014)
685 MEET and CONFER STATEMENT re 681 Motion for Miscellaneous Relief filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Ikeda, Scott) (Entered: 12/10/2014)
686 MOTION Miscellaneous relief Defs' MOL Support of Motion to Remove "Confidential" Designations from Deposition Transcripts of Plaintiffs) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Ikeda, Scott) (Entered: 12/10/2014)
687 NOTICE OF HEARING ON MOTION 686 MOTION Miscellaneous relief Defs' MOL Support of Motion to Remove "Confidential" Designations from Deposition Transcripts of Plaintiffs) : (by telephone) Motion Hearing set for 12/15/2014 04:30 PM before Magistrate Judge Jeffrey J. Keyes. (Ikeda, Scott) Modified on 12/11/2014 (JAM). (Entered: 12/10/2014)
688 PLACEHOLDER FOR MEMORANDUM in Support re 686 MOTION Miscellaneous relief Defs' MOL Support of Motion to Remove "Confidential" Designations from Deposition Transcripts of Plaintiffs) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Ikeda, Scott) Sealed document received on 12/10/2014 (JGK). Modified on 12/11/2014 (kt). (Entered: 12/10/2014)
689 AFFIDAVIT of Scott H. Ikeda in SUPPORT OF 686 MOTION Miscellaneous relief Defs' MOL Support of Motion to Remove "Confidential" Designations from Deposition Transcripts of Plaintiffs) filed by Ann Zimmerman. (Attachments: # 1 Exhibit 1, # 2 Exhibit(s) Placeholder for Ex. 2 filed under seal, # 3 Exhibit(s) 3−6, # 4 Exhibit(s) Placeholder for Exs. 7−12 filed under seal)(Ikeda, Scott) Sealed document received on 12/10/2014 (JGK). Modified on 12/11/2014 (kt). (Entered: 12/10/2014)
690 LETTER TO MAGISTRATE JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (Motion to Compel Personal Emails). (Attachments: # 1 Exhibit(s) A−B, # 2 Placeholder for Exhibits C−F, # 3 Exhibit(s) G−K, # 4 Placeholder for Exhibit L)(Gustafson, Daniel)SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 12/11/14LGL Modified on 12/12/2014 (LGL). (Entered: 12/10/2014)
691 MEET and CONFER STATEMENT re 686 Motion for Miscellaneous Relief, filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Ikeda, Scott) (Entered: 12/10/2014)

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692 CERTIFICATE OF SERVICE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 689 Affidavit in Support of Motion, 686 MOTION Miscellaneous relief Defs' MOL Support of Motion to Remove "Confidential" Designations from Deposition Transcripts of Plaintiffs), 691 Meet and Confer Statement, 688 Memorandum in Support of Motion, 687 Notice of Hearing on Motion, (Ikeda, Scott) (Entered: 12/10/2014)
693 CERTIFICATE OF SERVICE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 690 Letter to Magistrate Judge,, (Gustafson, Daniel) (Entered: 12/10/2014)
694 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 681 MOTION miscellaneous relief DEFENDANTS' MOTION SEEKING RELIEF FOR SPOLIATION (Ikeda, Scott) (Entered: 12/10/2014)
695 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 686 MOTION Miscellaneous relief Defs' MOL Support of Motion to Remove "Confidential" Designations from Deposition Transcripts of Plaintiffs) (Ikeda, Scott) (Entered: 12/10/2014)
696 MEMORANDUM in Opposition re 686 MOTION Miscellaneous relief Defs' MOL Support of Motion to Remove "Confidential" Designations from Deposition Transcripts of Plaintiffs) (Filed Under Seal) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) SEALED DOCUMENT RECEIVED IN CLERK'S OFFICE 12/15/14. Modified on 12/16/2014 (JAM). (Entered: 12/12/2014)
697 CERTIFICATE OF SERVICE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 696 Memorandum in Opposition to Motion, (Gustafson, Daniel) (Entered: 12/12/2014)
698 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (Response to Doc. 690). (Attachments: # 1 Affidavit of Aaron Winter, # 2 Exhibit(s) 1−4 to Affidavit of Aaron Winter)(Winter, Aaron) (Entered: 12/12/2014)
699 MEMORANDUM in Opposition re 681 MOTION miscellaneous relief DEFENDANTS' MOTION SEEKING RELIEF FOR SPOLIATION filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 12/12/2014)
700 AFFIDAVIT of David A. Goodwin in OPPOSITION TO 681 MOTION miscellaneous relief DEFENDANTS' MOTION SEEKING RELIEF FOR SPOLIATION filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A−B, # 2 Placeholder for Exhibit C, # 3 Exhibit(s) D−N, # 4 Placeholder for Exhibits O−R, # 5 Exhibit(s) S, # 6 Exhibit(s) T, # 7 Exhibit(s) U)(Gustafson, Daniel) SEALED DOCUMENTS RECEIVED IN CLERK'S OFFICE 12/15/14. Modified on 12/16/2014 (JAM). (Entered: 12/12/2014)
701 CERTIFICATE OF SERVICE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 699 Memorandum in Opposition to Motion, (Gustafson, Daniel) (Entered: 12/12/2014)
702 LETTER TO DISTRICT JUDGE by Ann Zimmerman . (Ikeda, Scott) (Entered: 12/12/2014)

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703 LETTER TO MAGISTRATE JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (re: Plaintiffs' Expert Facility Visit & Deposition Location). (Gustafson, Daniel) (Entered: 12/15/2014)
704 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Welle, Adam) (Entered: 12/15/2014)
705 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Telephone Conference held on 12/15/2014. (kt) (Entered: 12/16/2014)
706 TEXT ONLY ENTRY by Magistrate Judge Jeffrey J. Keyes that (I) As stated on the record, Plaintiffs' letter request to compel Defendants to collect and produce relevant documents from custodian's personal email accounts (Doc. No. 690), is DENIED. (II) As stated on the record, Defendants' Motion Seeking Relief for Spoliation (Doc. No. 681), is DENIED. (III) As stated on the record, Defendants' Motion to Remove Confidential Designations from Deposition Transcripts of Plaintiffs (Doc. No. 686), is GRANTED IN PART, DENIED IN PART, and DENIED IN PART AS MOOT. Specifically, it is hereby ordered that: a. Regarding the DeVillion deposition at 77:21−78:17, the motion is granted and the confidential designation shall be lifted. b. Regarding the DeVillion deposition at 86:23−87:2 and 87:13−87:25, the motion is granted and the confidential designation shall be lifted. c. Regarding the DeVillion deposition at 168:9−13, 168:18−169:1, 169:5−7, 169:20, 169:25−170:1, 170:9, 170:13−14, and 172:20−24, the motion is granted and the confidential designation shall be lifted. d. Regarding the Barber deposition at 57:14−58:10 and 59:11−63:14, the motion is denied. The Confidential designation shall remain for pretrial purposes unless otherwise ordered by the Court. e. Regarding the Lonergan deposition at 192:17−194:20, the motion is denied. The Confidential designation shall remain for pretrial purposes unless otherwise ordered by the Court. f. Regarding the Lonergan deposition at 236:25−240:24, the motion is denied. The Confidential designation shall remain for pretrial purposes unless otherwise ordered by the Court. g. Regarding the Rud deposition at 66:6−67:19, the motion is denied. The Confidential designation shall remain for pretrial purposes unless otherwise ordered by the Court. h. Regarding the Rud deposition at 143:14−146:19, the motion is denied. The Confidential designation shall remain for pretrial purposes unless otherwise ordered by the Court. i. Regarding the Barber deposition at 83:12−16, the motion is granted and the confidential designation shall be lifted. j. Regarding the Braun deposition at 22:16−22:21, the motion is granted and the confidential designation shall be lifted. k. Regarding the DeVillion deposition at 127:6−130:3, the motion is denied. The Confidential designation shall remain for pretrial purposes unless otherwise ordered by the Court. l. Regarding the Lonergan deposition at 142:24−143:14 and 147:20−151:18, the motion is denied. The Confidential designation shall remain for pretrial purposes unless otherwise ordered by the Court. m. Regarding the Lonergan deposition at 152:16−153:25, the motion is denied. The Confidential designation shall remain for pretrial purposes unless otherwise ordered by the Court. n. Regarding all other deposition designations raised in the motion, the motion is denied as moot. o. Defendants' request for Plaintiffs to designate the remaining eight named Plaintiffs' depositions by December 19, 2014, is granted. (IV) As stated on the record, Plaintiffs' letter request for their experts to be allowed to visit the MSOP facilities (Doc. No. 703), is DENIED. (V) This Minute Order constitutes an Order of the Court. (kt) (Entered: 12/16/2014)
707 MEMORANDUM in Opposition re 651 MOTION to Dismiss/General (Defendants' Partial Motion to Dismiss Third Amended Complaint) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 12/16/2014)
708 TEXT ONLY ENTRY: NOTICE to Attorneys: The Court hereby approves Defendants' letter request (Doc. No. 702 ) for a word limit extension from 12,000 words to 27,000 words for both their opening memorandum and reply memorandum in support of their motion for summary judgment. (BJS) (Entered: 12/16/2014)

12/17/2014 12/17/2014 12/18/2014 12/18/2014
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12/19/2014
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709 RECEIPT number 00431160 in the amount of $37,814.00. (kt)DOCUMENT QC'D ON 12/18/14 LGL Modified on 12/18/2014 (LGL). (Entered: 12/17/2014)
710 RECEIPT number 431194 in the amount of $36,450.00. (kt)DOCUMENT QC'D ON 12/18/14 LGL Modified on 12/18/2014 (LGL). (Entered: 12/17/2014)
711 RECEIPT number 00431189 in the amount of $37,063.44. (kt)DOCUMENT QC'D ON 12/19/14 LGL Modified on 12/19/2014 (LGL). (Entered: 12/18/2014)
712 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (discovery). (Attachments: # 1 Affidavit of Nathan Brennaman, # 2 Exhibit(s) 1−4 to Brennaman Affidavit, # 3 Exhibit(s) 5−6 to Brennaman Affidavit)(Brennaman, Nathan) (Entered: 12/18/2014)
713 LETTER TO MAGISTRATE JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (re: Defendants' Privilege Log). (Attachments: # 1 Exhibit(s) A Part 1, # 2 Exhibit(s) A Part 2)(Gustafson, Daniel) (Entered: 12/18/2014)
714 LETTER TO MAGISTRATE JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (in Response to Defendants' December 18, 2014 Letter). (Attachments: # 1 Exhibit(s) A Part 1, # 2 Exhibit(s) A Part 2, # 3 Exhibit(s) B, # 4 Exhibit(s) C, # 5 Exhibit(s) D−F)(Gustafson, Daniel) (Entered: 12/19/2014)
715 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (Response to Doc. 713) (privilege log). (Winter, Aaron) (Entered: 12/19/2014)
716 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Telephone Conference held on 12/19/2014. (kt) (Entered: 12/22/2014)
717 TEXT ONLY ORDER by Magistrate Judge Jeffrey J. Keyes that (I) As stated on the record, Plaintiffs' letter requesting an order compelling Defendants to amend their privilege log or produce documents (Doc. No. 713), is GRANTED IN PART and DENIED IN PART. Specifically, it is hereby ordered that Plaintiffs must meet and confer with Defendants and identify a narrow list of documents they need more information on. The list must be provided to Defendants by January 15, 2015. (II) An order will issue separately on Defendants' letter requesting complete answers on various discovery requests (Doc. No. 712). (III) This Minute Order constitutes an Order of the Court.(kt) (Entered: 12/22/2014)
718 ORDER. Signed by Magistrate Judge Jeffrey J. Keyes on 12/22/14. (kt) (Entered: 12/22/2014)
719 MOTION for Summary Judgment by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 12/23/2014)
720 NOTICE OF HEARING ON MOTION 719 MOTION for Summary Judgment : Motion Hearing set for 1/14/2015 09:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Brennaman, Nathan) (Entered: 12/23/2014)
721 MEMORANDUM in Support re 719 MOTION for Summary Judgment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 12/23/2014)
722 AFFIDAVIT of Jessica J. Geil in SUPPORT OF 719 MOTION for Summary Judgment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) Placeholder for Ex. 2 to Geif Aff. (filed under seal), # 3 Exhibit(s) 3, # 4

12/23/2014 12/23/2014 12/23/2014 12/23/2014
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Exhibit(s) Placeholder for Exs. 4−5 to Geil Aff. (filed under seal), # 5 Exhibit(s) 6, # 6 Exhibit(s) Placeholder for Exs. 7−8 to Geil Aff. (filed under seal), # 7 Exhibit(s) 9, # 8 Exhibit(s) Placeholder for Exs. 10−13 to Geil Aff. (filed under seal), # 9 Exhibit(s) 14, # 10 Exhibit(s) Placeholder for Ex. 15 to Geil Aff. (filed under seal))(Brennaman, Nathan) SEALED DOCUMENTS RECEIVED IN CLERK'S OFFICE on 12/23/2014 (LPH). (Entered: 12/23/2014)
723 AFFIDAVIT of Lauren Herbert in SUPPORT OF 719 MOTION for Summary Judgment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Placeholder for Lauren Herbert Affidavit (filed under seal), # 2 Exhibit(s) Placeholder for Herbert Exs. 1−11 (filed under seal))(Brennaman, Nathan) SEALED DOCUMENTS RECEIVED IN CLERK'S OFFICE on 12/23/2014 (LPH). (Entered: 12/23/2014)
724 AFFIDAVIT of Nathan Brennaman in SUPPORT OF 719 MOTION for Summary Judgment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) 1−10b, # 2 Exhibit(s) 11−18, # 3 Exhibit(s) 19−21, # 4 Exhibit(s) 22−39 (filed under seal), # 5 Exhibit(s) 40)(Brennaman, Nathan) SEALED DOCUMENTS RECEIVED IN CLERK'S OFFICE on 12/23/2014 (LPH). (Entered: 12/23/2014)
725 AFFIDAVIT of Nancy Johnston in SUPPORT OF 719 MOTION for Summary Judgment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) 1−23)(Brennaman, Nathan) (Entered: 12/23/2014)
726 AFFIDAVIT of Jannine Hebert in SUPPORT OF 719 MOTION for Summary Judgment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Placeholder for to Hebert Aff (filed under seal), # 2 Exhibit(s) 1−3, # 3 Exhibit(s) Placeholder Ex. 4 to Hebert Aff (attorneys' eyes only), # 4 Exhibit(s) 5−7, # 5 Exhibit(s) Placeholder Exs. 8−49 to Hebert Aff. (filed under seal), # 6 Exhibit(s) 50−53)(Brennaman, Nathan) SEALED DOCUMENTS RECEIVED IN CLERK'S OFFICE on 12/23/2014 (LPH). (Entered: 12/23/2014)
727 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 719 MOTION for Summary Judgment (Brennaman, Nathan) (Entered: 12/23/2014)
728 CERTIFICATE OF SERVICE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 725 Affidavit in Support of Motion, 719 MOTION for Summary Judgment , 724 Affidavit in Support of Motion, 723 Affidavit in Support of Motion, 726 Affidavit in Support of Motion,, 722 Affidavit in Support of Motion,, 721 Memorandum in Support of Motion, 720 Notice of Hearing on Motion (Brennaman, Nathan) (Entered: 12/23/2014)
729 LETTER TO MAGISTRATE JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (re: underlying expert material). (Gustafson, Daniel) (Entered: 12/29/2014)
730 APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge re 706 Order (Text Only). (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) Modified on 12/29/2014 (kt). (Entered: 12/29/2014)
731 RECEIPT number 431191 in the amount of $35,850.00. (kt)DOCUMENT QC'D ON 12/30/14 LGL Modified on 12/30/2014 (LGL). (Entered: 12/30/2014)
732 TEXT ONLY ORDER: On December 29, 2014, Defendants filed objections to the Magistrate Judge's Minute Order entered on December 16, 2014, denying Defendants' Motion Seeking Relief from Spoliation. (Doc. No. 730 .) Plaintiffs shall file a response to Defendants objections by 12:00 p.m. on January 7, 2015. Signed by Judge Donovan W. Frank on 12/30/2014. (BJS) (Entered: 12/30/2014)

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733 Reply to Response to Motion re 651 MOTION to Dismiss/General (Defendants' Partial Motion to Dismiss Third Amended Complaint) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 12/30/2014)
734 LETTER TO MAGISTRATE JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (Defs' expert notes). (Winter, Aaron) (Entered: 12/31/2014)
735 LETTER to Request Permission to Exceed Word/Line Limits . (Gustafson, Daniel) (Entered: 01/05/2015)
736 Minute Entry for proceedings held before Magistrate Judge Jeffrey J. Keyes: Telephone Conference held on 1/5/2015. (kt) (Entered: 01/05/2015)
737 TEXT ONLY ORDER by Magistrate Judge Jeffrey J. Keyes that (I) As stated on the record, Plaintiffs' letter requesting the production of a list of interviewees and notes not produced by Defendants' Experts (Doc. No. 729), is GRANTED. Specifically, it is hereby ordered that the subject list and interview notes must be produced by Friday, January 9, 2015. (II) This Minute Order constitutes an Order of the Court.(kt) (Entered: 01/05/2015)
738 RESPONSE re 730 APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge re 705 Telephone Conference, 706 Order (Text Only), filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) Modified on 1/7/2015 (JAM). (Entered: 01/06/2015)
739 TEXT ONLY NOTICE to Attorneys: The Court hereby approves Plaintiffs' letter request (Doc. No. 735 ) for a word limit extension from 12,000 words to 27,000 words for their memorandum in opposition to Defendants' motion for summary judgment. (BJS) (Entered: 01/06/2015)
740 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Brennaman, Nathan) (Entered: 01/06/2015)
741 MEMORANDUM in Opposition re 719 MOTION for Summary Judgment filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 01/06/2015)
742 DECLARATION of Karla M. Gluek in OPPOSITION TO 719 MOTION for Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Placeholder for Exhibits 1−28)(Gustafson, Daniel) Modified on 1/7/2015 (kt).SEALED DOCUMENT RECEIVED IN CLERKS OFFICE ON 1/7/15LGL Modified on 1/7/2015 (LGL). (Entered: 01/06/2015)
743 DECLARATION of James Barber in OPPOSITION TO 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) Modified on 1/7/2015 (kt). (Entered: 01/06/2015)
744 DECLARATION of Craig Bolte in OPPOSITION TO 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) Modified on 1/7/2015 (kt). (Entered: 01/06/2015)
745 DECLARATION of Kaine Braun in OPPOSITION TO 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) Modified on 1/7/2015 (kt). (Entered: 01/06/2015)
746 DECLARATION of Kenny Daywitt in OPPOSITION TO 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) Modified on 1/7/2015 (kt). (Entered: 01/06/2015)
747 DECLARATION of Kevin DeVillion in Opposition to 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 01/06/2015)
748 DECLARATION of Bradley Foster in Opposition to 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 01/06/2015)

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749 DECLARATION of David Gamble, Jr. in Opposition to 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 01/06/2015)
750 DECLARATION of Brian Hausfeld in Opposition to 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 01/06/2015)
751 DECLARATION of Kevin Karsjens in Opposition to 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 01/06/2015)
752 DECLARATION of Peter Lonergan in Opposition to 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 01/06/2015)
753 DECLARATION of James Noyer in Opposition to 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 01/06/2015)
754 DECLARATION of James Rud in Opposition to 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 01/06/2015)
755 DECLARATION of Dennis Steiner in Opposition to 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 01/06/2015)
756 DECLARATION of Christopher Thuringer in Opposition to 719 MOTION for Summary Judgment filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 01/06/2015)
757 DECLARATION of Daniel E. Gustafson in Opposition to 719 MOTION for Summary Judgment filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3, # 4 Exhibit(s) 4, # 5 Exhibit(s) 5, # 6 Exhibit(s) 6, # 7 Exhibit(s) 7, # 8 Exhibit(s) 8, # 9 Exhibit(s) 9, # 10 Exhibit(s) 10, # 11 Exhibit(s) 11a, # 12 Exhibit(s) 11b, # 13 Exhibit(s) 12−22, # 14 Exhibit(s) 23−24, # 15 Exhibit(s) 25, # 16 Exhibit(s) 26−33, # 17 Exhibit(s) 34−47, # 18 Exhibit(s) 48, # 19 Exhibit(s) 49−51, # 20 Exhibit(s) 52, # 21 Exhibit(s) 53−64, # 22 Exhibit(s) 65, # 23 Exhibit(s) 66−75, # 24 Exhibit(s) 76, # 25 Exhibit(s) 77, # 26 Exhibit(s) 78−82, # 27 Exhibit(s) 83−85, # 28 Exhibit(s) 86−90, # 29 Exhibit(s) 91−94, # 30 Exhibit(s) 95−98, # 31 Exhibit(s) 99−101, # 32 Exhibit(s) 102−107)(Gustafson, Daniel) (Entered: 01/06/2015)
758 CERTIFICATE OF SERVICE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 741 Memorandum in Opposition to Motion (Gustafson, Daniel) (Entered: 01/06/2015)
759 ORDER. 1. Phase One will begin on February 9, 2015 and continue, if necessary, through February 20, 2015, with a break on February 16, 2015 for Presidents' Day. 2. The scope of Phase One is clearly described in the Final Pretrial Order. (See Doc. No. 647 at 2.) As provided in the Final Pretrial Order, the parties shall file their statements of the case, which "shall indicate the facts that the party intends to prove and any unresolved substantive, evidentiary, and procedural issues," by January 28, 2015. (See id. at 3.) 3. The parties shall e−file and e−mail their respective witness lists to the Court by 4:30 p.m. on January 15, 2015, and deliver two courtesy copies of the witness lists to the Court by 10:00 a.m. on January 16, 2015. The list shall include the names and addresses of the witnesses, along with a short statement of the substance of the expected testimony of each witness. Only witnesses so listed shall be permitted to testify, unless good cause is shown. 4. The parties shall provide at least 48 hours notice to opposing counsel of the witnesses to be called at trial. 5. The dispositive motions hearing set before this Court on January 14, 2015, shall commence at 9:00 a.m. The Court has set aside 2.5 hours for presentation of both dispositive motions, with 45 minutes allotted to each party for Defendants Motion for Summary Judgment (Doc. No. 719) and up to 30 minutes allotted to each party for Defendants' Partial Motion to Dismiss Third Amended Complaint (Doc. No. 651). However, the parties may agree to a different assignment of time for each motion based on the total amount of time available. Signed by Judge Donovan W. Frank on 1/9/2015. (BJS) (Entered: 01/09/2015)
760 Reply to Response to Motion re 719 MOTION for Summary Judgment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count

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Compliance Certificate)(Brennaman, Nathan) (Entered: 01/09/2015)
761 Supplemental AFFIDAVIT of Nathan Brennaman in SUPPORT OF 719 MOTION for Summary Judgment filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) 1−6)(Brennaman, Nathan) (Entered: 01/09/2015)
762 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (trial schedule). (Brennaman, Nathan) (Entered: 01/12/2015)
763 ORDER. 1. Defendants' objections (Doc. No. 730 ) to Magistrate Judge Jeffrey J. Keyes's December 15, 2014 Orders are OVERRULED. 2. Magistrate Judge Jeffrey J. Keyes's December 15, 2014 Text Only Order (Doc. No. 706 ) and Minute Entry (Doc. No. 705 ) are AFFIRMED. (Written Opinion). Signed by Judge Donovan W. Frank on 1/13/2015. (BJS) (Entered: 01/13/2015)
764 LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (re: trial schedule). (Gustafson, Daniel) (Entered: 01/13/2015)
765 Minute Entry for proceedings held before Judge Donovan W. Frank: Motion Hearing held on 1/14/2015 re 651 MOTION to Dismiss/General (Defendants' Partial Motion to Dismiss Third Amended Complaint) filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Tom Lundquist, Dennis Benson, Lucinda Jesson, Jannine Hebert, 719 MOTION for Summary Judgment filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Tom Lundquist, Dennis Benson, Lucinda Jesson, Jannine Hebert. Matters taken under advisement; written order to issue. (Court Reporter Debra Beauvais) (BJS) (Entered: 01/14/2015)
766 Witness List by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 01/15/2015)
767 Witness List by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 01/15/2015)
768 ORDER. Pursuant to and under the terms of the Order of March 17, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $11,508.60 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 1/16/2015. (Attachments: # 1 Attachment A)(BJS) cc: Finance on 1/20/2015 (JAM). (Entered: 01/16/2015)
769 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (exhibits). (Brennaman, Nathan) (Entered: 01/23/2015)
770 LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (Plaintiffs response to Defendants' January 23, 2015 letter re exhibit lists). (Gustafson, Daniel) (Entered: 01/26/2015)
771 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (exhibits). (Brennaman, Nathan) (Entered: 01/27/2015)
772 TEXT ONLY ORDER: The Court is in receipt of the parties' letters to the Court at Doc. Nos. 769 , 770 , and 771 . Consistent with the terms of the November 7, 2014 Final Pretrial Order (Doc. No. 647 ), the Court directs the parties to submit electronic copies of their respective exhibit lists to the Court by 4:30 p.m. on January 28, 2015,

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with courtesy hard copies to the Court by 10:00 a.m. on January 29, 2015. Any remaining issues, including issues regarding witness testimony, will be addressed at the Pretrial Conference on February 3, 2015. Signed by Judge Donovan W. Frank on 1/27/2015. (BJS) (Entered: 01/27/2015)
773 List of Deposition Testimony (Plaintiffs' Deposition Designations) submitted by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 01/28/2015)
774 Exhibit List (Defendants' Exhibit List and Objections to Plaintiffs' Exhibit List) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 01/28/2015)
775 STATEMENT OF CASE as to Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 01/28/2015)
776 List of Deposition Testimony (Defendants' Deposition Designations) submitted by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 01/28/2015)
777 MOTION in Limine (to Exclude Testimony of Dean R. Cauley) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 01/28/2015)
778 MEMORANDUM in Support re 777 MOTION in Limine (to Exclude Testimony of Dean R. Cauley) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 01/28/2015)
779 MOTION in Limine (to exclude theTestimony of Dr. Michael F. Caldwell) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 01/28/2015)
780 MEMORANDUM in Support re 779 MOTION in Limine (to exclude theTestimony of Dr. Michael F. Caldwell) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 01/28/2015)
781 MOTION in Limine (to Exclude Testimony of Gregory J. Van Rybroek) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 01/28/2015)
782 MEMORANDUM in Support re 781 MOTION in Limine (to Exclude Testimony of Gregory J. Van Rybroek) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 01/28/2015)
783 MOTION in Limine (to Exclude Evidence of Non−Classwide Issues) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 01/28/2015)
784 MEMORANDUM in Support re 783 MOTION in Limine (to Exclude Evidence of Non−Classwide Issues) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 01/28/2015)
785 MOTION in Limine (to Exclude Evidence Unrelated to Official−Capacity Claims) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 01/28/2015)

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786 MEMORANDUM in Support re 785 MOTION in Limine (to Exclude Evidence Unrelated to Official−Capacity Claims) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 01/28/2015)
787 MOTION in Limine (to Exclude Evidence Related to the Sex Offender Civil Commitment Advisory Task Force) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser. (Brennaman, Nathan) (Entered: 01/28/2015)
788 MEMORANDUM in Support re 787 MOTION in Limine (to Exclude Evidence Related to the Sex Offender Civil Commitment Advisory Task Force) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 01/28/2015)
789 MOTION in Limine (to Exclude Previously Undisclosed Witnesses) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 01/28/2015)
790 MEMORANDUM in Support re 789 MOTION in Limine (to Exclude Previously Undisclosed Witnesses) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 01/28/2015)
791 NOTICE OF HEARING ON MOTION 781 MOTION in Limine (to Exclude Testimony of Gregory J. Van Rybroek), 779 MOTION in Limine (to exclude theTestimony of Dr. Michael F. Caldwell), 783 MOTION in Limine (to Exclude Evidence of Non−Classwide Issues), 789 MOTION in Limine (to Exclude Previously Undisclosed Witnesses), 785 MOTION in Limine (to Exclude Evidence Unrelated to Official−Capacity Claims), 777 MOTION in Limine (to Exclude Testimony of Dean R. Cauley), 787 MOTION in Limine (to Exclude Evidence Related to the Sex Offender Civil Commitment Advisory Task Force) : Motion Hearing set for 2/3/2015 09:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Brennaman, Nathan) (Entered: 01/28/2015)
792 AFFIDAVIT of Nathan Brennaman in SUPPORT OF 781 MOTION in Limine (to Exclude Testimony of Gregory J. Van Rybroek), 785 MOTION in Limine (to Exclude Evidence Unrelated to Official−Capacity Claims), 777 MOTION in Limine (to Exclude Testimony of Dean R. Cauley), 789 MOTION in Limine (to Exclude Previously Undisclosed Witnesses), 783 MOTION in Limine (to Exclude Evidence of Non−Classwide Issues), 787 MOTION in Limine (to Exclude Evidence Related to the Sex Offender Civil Commitment Advisory Task Force), 779 MOTION in Limine (to exclude theTestimony of Dr. Michael F. Caldwell) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3, # 4 Exhibit(s) 4, # 5 Exhibit(s) 5, # 6 Exhibit(s) 6, # 7 Exhibit(s) 7, # 8 Exhibit(s) 8, # 9 Exhibit(s) 9, # 10 Exhibit(s) 10, # 11 Exhibit(s) 11, # 12 Exhibit(s) 12, # 13 Exhibit(s) 13, # 14 Exhibit(s) 14, # 15 Exhibit(s) 15)(Brennaman, Nathan) (Entered: 01/28/2015)
793 MEET and CONFER STATEMENT re 781 Motion in Limine, 783 Motion in Limine, 785 Motion in Limine, 787 Motion in Limine, 777 Motion in Limine, 779 Motion in Limine, 789 Motion in Limine filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 01/28/2015)
794 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 781 MOTION in Limine (to Exclude Testimony of Gregory J. Van Rybroek), 783 MOTION in Limine (to Exclude Evidence of Non−Classwide Issues), 785 MOTION in Limine (to Exclude Evidence Unrelated to Official−Capacity Claims), 787 MOTION in Limine (to Exclude Evidence Related to the Sex Offender Civil Commitment Advisory Task Force), 777 MOTION in Limine (to Exclude Testimony of Dean R. Cauley), 779 MOTION in Limine (to exclude theTestimony of Dr. Michael F. Caldwell), 789 MOTION in Limine (to Exclude Previously

01/28/2015
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Undisclosed Witnesses) (Brennaman, Nathan) (Entered: 01/28/2015)
795 Exhibit List (Plaintiffs' Exhibit List) by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 01/28/2015)
796 STATEMENT OF CASE as to James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 01/28/2015)
797 Proposed Findings of Fact by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 01/28/2015)
798 MOTION in Limine (re: Prior Offenses) by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 01/28/2015)
799 NOTICE OF HEARING ON MOTION 798 MOTION in Limine (re: Prior Offenses) : Motion Hearing set for 2/3/2015 09:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel) (Entered: 01/28/2015)
800 MEMORANDUM in Support re 798 MOTION in Limine (re: Prior Offenses) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 01/28/2015)
801 MEET and CONFER STATEMENT re 798 Motion in Limine, filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 01/28/2015)
802 Proposed Findings of Fact by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 01/28/2015)
803 MOTION Requesting the Court to Take Judicial Notice by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 01/28/2015)
804 NOTICE OF HEARING ON MOTION 803 MOTION Requesting the Court to Take Judicial Notice : Motion Hearing set for 2/3/2015 09:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Gustafson, Daniel) (Entered: 01/28/2015)
805 MEMORANDUM in Support re 803 MOTION Requesting the Court to Take Judicial Notice filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 01/28/2015)
806 Declaration of Daniel E. Gustafson in Support of 803 MOTION Requesting the Court to Take Judicial Notice filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3, # 4 Exhibit(s) 4, # 5 Exhibit(s) 5, # 6 Exhibit(s) 6, # 7 Exhibit(s) 7, # 8 Exhibit(s) 8, # 9 Exhibit(s) 9)(Gustafson, Daniel) (Entered: 01/28/2015)
807 MEET and CONFER STATEMENT re 803 Motion for Miscellaneous Relief, filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 01/28/2015)
808 CERTIFICATE OF SERVICE ON PROPOSED ORDER by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis

01/29/2015 01/29/2015
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01/30/2015

Richard Steiner, Christopher John Thuringer re 798 MOTION in Limine (re: Prior Offenses), 803 MOTION Requesting the Court to Take Judicial Notice (Gustafson, Daniel) (Entered: 01/28/2015)
809 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (with attachments) (exhibit list). (Brennaman, Nathan) (Entered: 01/29/2015)
810 LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (Plaintiffs response to Defendants' January 29, 2015 letter re Court staff's email). (Gustafson, Daniel) (Entered: 01/29/2015)
838 LETTER TO DISTRICT JUDGE from Nathan Brennaman. (AKL) Document QC'd on 2/12/2015 (JGK). (Entered: 02/09/2015)
811 MEMORANDUM in Opposition re 783 MOTION in Limine (to Exclude Evidence of Non−Classwide Issues) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 01/30/2015)
812 MEMORANDUM in Opposition re 785 MOTION in Limine (to Exclude Evidence Unrelated to Official−Capacity Claims) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 01/30/2015)
813 MEMORANDUM in Opposition re 787 MOTION in Limine (to Exclude Evidence Related to the Sex Offender Civil Commitment Advisory Task Force) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 01/30/2015)
814 MEMORANDUM in Opposition re 789 MOTION in Limine (to Exclude Previously Undisclosed Witnesses) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 01/30/2015)
815 DECLARATION of Daniel E. Gustafson in Opposition to 789 MOTION in Limine (to Exclude Previously Undisclosed Witnesses) filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) 1−5)(Gustafson, Daniel) (Entered: 01/30/2015)
816 OBJECTION re 776 List of Deposition Testimony (Plaintiffs' Objections and Counterdesignations to Defendants' Deposition Designations) filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 01/30/2015)
817 MEMORANDUM in Opposition re 779 MOTION in Limine (to exclude theTestimony of Dr. Michael F. Caldwell) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 01/30/2015)
818 MEMORANDUM in Opposition re 777 MOTION in Limine (to Exclude Testimony of Dean R. Cauley) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 01/30/2015)
819 MEMORANDUM in Opposition re 781 MOTION in Limine (to Exclude Testimony of Gregory J. Van Rybroek) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 01/30/2015)
820 DECLARATION of Daniel E. Gustafson in Opposition to 781 MOTION in Limine (to Exclude Testimony of Gregory J. Van Rybroek), 777 MOTION in Limine (to Exclude Testimony of Dean R. Cauley), 779 MOTION in Limine (to exclude theTestimony of Dr. Michael F. Caldwell) filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) 1−3)(Gustafson, Daniel) (Entered: 01/30/2015)
821 Exhibit List (Defendants' Exhibit List and Objections to Plaintiffs' Exhibits) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 01/30/2015)

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822 Exhibit List (Plaintiffs' First Amended Exhibit List with Defendants' Objections) by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 01/30/2015)
823 MEMORANDUM in Opposition re 803 MOTION Requesting the Court to Take Judicial Notice filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 01/30/2015)
824 MEMORANDUM in Opposition re 798 MOTION in Limine (re: Prior Offenses) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 01/30/2015)
825 AFFIDAVIT of Nathan Brennaman in OPPOSITION TO 798 MOTION in Limine (re: Prior Offenses) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) 1−3)(Brennaman, Nathan) (Entered: 01/30/2015)
826 OBJECTION re 773 List of Deposition Testimony, (Defendants' Objections and Counterdesignations to Plaintiffs' Deposition Designations) filed by Tom Lundquist, Lucinda Jesson, Kevin Moser, Nancy Johnston, Ann Zimmerman, Dennis Benson, Jannine Hebert. (Brennaman, Nathan) (Entered: 01/30/2015)
827 LR7.1/LR72.2 WORD COUNT COMPLIANCE CERTIFICATE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman re 823 Memorandum in Opposition to Motion,. (Brennaman, Nathan) (Entered: 01/30/2015)
828 MEMORANDUM OPINION AND ORDER. 1. Defendants' Partial Motion to Dismiss the Third Amended Complaint (Doc. No. 651 ) is DENIED. 2. Defendants' Motion for Summary Judgment (Doc. No. 719 ) is DENIED. (Written Opinion). Signed by Judge Donovan W. Frank on 2/2/2015. (BJS) (Entered: 02/02/2015)
829 NOTICE of Appearance by Lucia G Massopust on behalf of All Plaintiffs. (Massopust, Lucia) (Entered: 02/03/2015)
831 Minute Entry for proceedings held before Judge Donovan W. Frank: Pretrial Conference held on 2/3/2015. Matters taken under advisement; written order to issue. (Court Reporter Jeanne Anderson) (BJS) (Entered: 02/04/2015)
830 NOTICE of Appearance by Eric S Taubel on behalf of All Plaintiffs. (Taubel, Eric) (Entered: 02/04/2015)
832 ORDER. 1. Plaintiffs' Motion in Limine to Exclude Irrelevant Evidence Relating to any Class Member's Sexual Offenses Prior to his or her Civil Commitment or Evidence Related to any Class Member's Civil Commitment Proceeding (Doc. No. 798 ) is DENIED. Such evidence is presumptively admissible subject to the Court's analysis of Article 4 and Rule 104 of the Federal Rules of Evidence. 2. Plaintiffs' Motion Requesting the Court to Take Judicial Notice of Documents Pertinent to this Matter (Doc. No. 803 ) is DENIED under Rule 201. However, the following evidence is presumptively admissible pursuant to the Court's Rule 702, Rule 703, Rule 807, Rule 403, and Rule 102 analysis, subject to any objections that Defendants may raise at trial: (i) the State of Minnesota's Office of the Legislative Auditor's March 2011 Evaluation Report ("OLA Report"); (ii) the MSOP Program Evaluation Teams February 2013 Report ("MPET Report"); and (iii) the Sex Offender Civil Commitment Advisory Task Force's December 2012 and December 2013 Reports ("Task Force Reports"). To the extent either party believes any of the remaining evidence referenced in Plaintiffs' motion is admissible notwithstanding the Court's ruling, the Court reserves the right to revisit the issue of the admissibility of such evidence at or before trial. (See Order for additional information.) (Written Opinion). Signed by Judge Donovan W. Frank on 2/5/2015. (BJS) (Entered: 02/05/2015)

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02/10/2015

833 STIPULATION to Transport Craig Bolte to Trial on February 11, 2015 by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. Jointly Signed by Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Nancy Johnston, Jannine Hebert, and Ann Zimmerman. (Gustafson, Daniel) (Entered: 02/06/2015)
834 STIPULATION to Transport Dennis Steiner to Trial on February 11, 2015 by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. Jointly Signed by Lucinda Jesson, Dennis Benson, Kevin Moser, Tom Lundquist, Nancy Johnston, Jannine Hebert, and Ann Zimmerman. (Gustafson, Daniel) (Entered: 02/06/2015)
835 Exhibit List (Plaintiffs' Second Amended Exhibit List) by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 02/08/2015)
836 ORDER TO TRANSPORT CRAIG BOLTE ON FEBRUARY 11, 2015 FOR TRIAL. 1. The Minnesota Sex Offender Program shall transport Craig Bolte to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial on February 11, 2015, commencing at 9:00 a.m. 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Craig Bolte for the duration of the court proceedings on February 11, 2015. The United States Marshal shall return Craig Bolte to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 2/09/2015. (BJS) (Entered: 02/09/2015)
837 ORDER TO TRANSPORT DENNIS STEINER ON FEBRUARY 11, 2015 FOR TRIAL. 1. The Minnesota Sex Offender Program shall transport Dennis Steiner to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial on February 11, 2015, commencing at 9:00 a.m. 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Dennis Steiner for the duration of the court proceedings on February 11, 2015. The United States Marshal shall return Dennis Steiner to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 2/09/2015. (BJS) (Entered: 02/09/2015)
839 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial begun on 2/9/2015. Plaintiffs' witness Deb McColluch. Trial to resume on Tuesday, 2/10/2015. (Court Reporter Jeanne Anderson/Carla Bebault) (BJS) (Entered: 02/10/2015)
840 AMENDED ORDER TO TRANSPORT CRAIG BOLTE ON FEBRUARY 12, 2015 FOR TRIAL. 1. The Minnesota Sex Offender Program shall transport Craig Bolte to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial on February 12, 2015, commencing at 9:00 a.m. 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Craig Bolte for the duration of the court proceedings on February 12, 2015. The United States Marshal shall return Craig Bolte to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 2/10/2015. (BJS) (Entered: 02/10/2015)
841 AMENDED ORDER TO TRANSPORT DENNIS STEINER ON FEBRUARY 12, 2015 FOR TRIAL. 1. The Minnesota Sex Offender Program shall transport Dennis Steiner to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial on February 12, 2015, commencing at 9:00 a.m. 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Dennis Steiner for the duration of the court proceedings on February 12, 2015. The United States Marshal shall return

02/10/2015 02/10/2015 02/10/2015 02/11/2015 02/11/2015 02/11/2015 02/11/2015 02/12/2015
02/12/2015

Dennis Steiner to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 2/10/2015. (BJS) (Entered: 02/10/2015)
842 STIPULATION to Transport Eric Terhaar to Trial on February 13, 2015 by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. Jointly Signed by All Defendants. (Gustafson, Daniel) (Entered: 02/10/2015)
843 STIPULATION to Transport Christopher Thuringer to Trial on February 13, 2015 by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. Jointly Signed by All Defendants. (Gustafson, Daniel) (Entered: 02/10/2015)
847 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 2/10/2015. Plaintiffs' witnesses Deb McColluch, Robin Wilson. Trial continued to 2/11/2015. (Court Reporter Jeanne Anderson/Carla Bebault) (BJS) (Entered: 02/12/2015)
844 RECEIPT re Check Number 00433283 in the amount of $11,508.60. (lmb) Modified text on 2/11/2015 (lmb). DOCUMENT QC'd by KT on 2/11/15. (kt) (Entered: 02/11/2015)
845 STIPULATION to Transport Craig Bolte to Trial by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. Jointly Signed by All Defendants. (Gustafson, Daniel) (Entered: 02/11/2015)
846 STIPULATION to Transport Dennis Steiner to Trial by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. Jointly Signed by All Defendants. (Gustafson, Daniel) (Entered: 02/11/2015)
848 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 2/11/2015. Plaintiffs' witness Robin Wilson. Trial Continued to 2/12/2015. (Court Reporter Jeanne Anderson/Carla Bebault) (BJS) (Entered: 02/12/2015)
849 ORDER TO TRANSPORT CRAIG BOLTE FOR TRIAL. 1. The Minnesota Sex Offender Program shall transport Craig Bolte to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial between February 9, 2015 and February 27, 2015, at a specific day and time requested by counsel. Either party calling the witness shall request the witness's transport with at least one full business day's notice and shall provide such notice to opposing counsel. Nothing in this Order modifies the parties' obligation to "provide at least 48 hours notice to opposing counsel of the witnesses to be called at trial." (Doc. No. 759). 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Craig Bolte. The United States Marshal shall return Mr. Bolte to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 2/12/2015. (BJS) (Entered: 02/12/2015)
850 ORDER TO TRANSPORT DENNIS STEINER FOR TRIAL. 1. The Minnesota Sex Offender Program shall transport Dennis Steiner to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial between February 9, 2015 and February 27, 2015, at a specific day and time requested by counsel. Either party calling the witness shall request the witness's transport with at least one full business day's notice and shall provide such notice to opposing counsel. Nothing in this Order modifies the

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parties' obligation to "provide at least 48 hours notice to opposing counsel of the witnesses to be called at trial." (Doc. No. 759). 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Dennis Steiner. The United States Marshal shall return Mr. Steiner to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 2/12/2015. (BJS) (Entered: 02/12/2015)
851 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 2/12/2015. Plaintiffs' witness Dr. Naomi Freeman. Trial to resume on 2/13/2015. (Court Reporter Jeanne Anderson/Carla Bebault/Lori Simpson) (BJS) (Entered: 02/13/2015)
852 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 2/13/2015. Plaintiffs' witnesses: Lucinda Jesson, Dr. Naomi Freeman, Dr. Michael Miner. Trial to continue Tuesday, 2/17/2015. (Court Reporter Jeanne Anderson/Carla Bebault) (BJS) Modified text on 2/13/2015 (lmb). (Entered: 02/13/2015)
853 ORDER TO TRANSPORT ERIC TERHAAR FOR TRIAL. 1. The Minnesota Sex Offender Program shall transport Eric Terhaar to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial between February 9, 2015 and February 27, 2015, at a specific day and time requested by counsel. Either party calling the witness shall request the witness's transport with at least one full business day's notice and shall provide such notice to opposing counsel. Nothing in this Order modifies the parties' obligation to "provide at least 48 hours notice to opposing counsel of the witnesses to be called at trial." (Doc. No. 759). 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Eric Terhaar. The United States Marshal shall return Mr. Terhaar to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 2/13/2015. (BJS) (Entered: 02/13/2015)
854 ORDER TO TRANSPORT CHRISTOPHER THURINGER FOR TRIAL. 1. The Minnesota Sex Offender Program shall transport Christopher Thuringer to the Warren E. Burger Federal Building and United States Courthouse,2316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial between February 9, 2015 and February 27, 2015, at a specific day and time requested by counsel. Either party calling the witness shall request the witness's transport with at least one full business day's notice and shall provide such notice to opposing counsel. Nothing in this Order modifies the parties' obligation to "provide at least 48 hours notice to opposing counsel of the witnesses to be called at trial." (Doc. No. 759). 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Christopher Thuringer. The United States Marshal shall return Mr. Thuringer to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 2/13/2015. (BJS) (Entered: 02/13/2015)
855 STIPULATION to Transport Matthew Manahl to Trial by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. Jointly Signed by All Defendants. (Gustafson, Daniel) (Entered: 02/17/2015)
856 STIPULATION to Transport Kevin Karsjens to Trial by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. Jointly Signed by All Defendants. (Gustafson, Daniel) (Entered: 02/17/2015)
857 ORDER. Pursuant to and under the terms of the Order of March 17, 2014 (Doc. No. 434), the Clerk shall forthwith issue checks to: 1. Naomi Freeman in the amount of $10,350; 2. Deborah McCulloch in the amount of $9,326.02; 3. Michael Miner in the amount of $5,741.66; and 4. Robin J. Wilson in the amount of $12,389.38. Signed by Judge Donovan W. Frank on 2/17/2015. (Attachments: # 1 Attachment A)(BJS) cc:

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Finance on 2/18/2015 (JAM). (Entered: 02/17/2015)
858 ORDER TO TRANSPORT KEVIN KARSJENS FOR TRIAL.1. The Minnesota Sex Offender Program shall transport Kevin Karsjens to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial between February 9, 2015 and February 27, 2015, at a specific day and time requested by counsel. Either party calling the witness shall request the witness's transport with at least one full business day's notice and shall provide such notice to opposing counsel. Nothing in this Order modifies the parties' obligation to "provide at least 48 hours notice to opposing counsel of the witnesses to be called at trial." (Doc. No. 759.) 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Kevin Karsjens. The United States Marshal shall return Mr. Karsjens to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 2/17/2015. (BJS) (Entered: 02/17/2015)
859 ORDER TO TRANSPORT MATTHEW MANAHL FOR TRIAL.1. The Minnesota Sex Offender Program shall transport Matthew Manahl to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial between February 9, 2015 and February 27, 2015, at a specific day and time requested by counsel. Either party calling the witness shall request the witness's transport with at least one full business day's notice and shall provide such notice to opposing counsel. Nothing in this Order modifies the parties obligation to "provide at least 48 hours notice to opposing counsel of the witnesses to be called at trial." (Doc. No. 759.) 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Matthew Manahl. The United States Marshal shall return Mr. Manahl to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 2/17/2015. (BJS) (Entered: 02/17/2015)
860 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 2/17/2015. Plaintiffs' witnesses: Dr. Michael Miner, Dennis Steiner. Trial to resume on 2/18/2015. (Court Reporter Jeanne Anderson/Lori Simpson) (BJS) (Entered: 02/17/2015)
861 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 2/19/2015. (Court Reporter Jeanne Anderson/Lori Simpson) (RLB) Modified on 2/25/2015 (JAM). (Entered: 02/19/2015)
862 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 2/19/2015. (Court Reporter Jeanne Anderson/Lori Simpson) (RLB) Modified on 2/25/2015 (JAM). (Entered: 02/20/2015)
865 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 2/20/2015. (Court Reporter Jeanne Anderson/Lori Simpson) (RLB) Modified on 2/25/2015 (JAM). (Entered: 02/24/2015)
863 STIPULATION to Transport Bradley Foster to Trial by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. Jointly Signed by All Defendants. (Gustafson, Daniel) (Entered: 02/23/2015)
864 ORDER TO TRANSPORT BRADLEY FOSTER FOR TRIAL re 863 Stipulation, filed by Bradley Wayne Foster, David Leroy Gamble, Jr., Craig Allen Bolte, Brian K. Hausfeld, Kaine Joseph Braun, Dennis Richard Steiner, James John Rud, Kenny S. Daywitt, Kevin John DeVillion, James Allen Barber, James Matthew Noyer, Sr., Christopher John Thuringer, Peter Gerard Lonergan, Kevin Scott Karsjens. Signed by Judge Donovan W. Frank on 02/23/2015. (RLB) (Entered: 02/23/2015)
866 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 2/24/2015. Plaintiffs' witnesses: Dr. Dean Cauley, Dr. Mischelle Vietanen, Jannine Hebert. Trial to continue on 2/23/2015. (Court Reporter Jeanne Anderson/Lori Simpson) (RLB) Modified on 2/25/2015 (JAM). (Entered: 02/24/2015)

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869 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 2/24/2015. (Court Reporter Jeanne Anderson/Lori Simpson) (RLB) (Entered: 02/27/2015)
867 ORDER REGARDING DEPOSITION DESIGNATIONS OF DENNIS L. BENSON. Signed by Judge Donovan W. Frank on 02/25/2015. (Attachments: # 1 Exhibit(s) A)(RLB) (Entered: 02/25/2015)
870 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 2/25/2015. (Court Reporter Jeanne Anderson/Carla Bebault) (RLB) (Entered: 02/27/2015)
868 RECEIPT number 434764 in the amount of $9326.02. (kt) DOCUMENT QC'd by KT on 2/27/15. (kt) (Entered: 02/26/2015)
871 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 2/26/2015. (Court Reporter Jeanne Anderson/Carla Bebault) (RLB) Modified on 3/2/2015 (JAM). (Entered: 02/27/2015)
872 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 2/27/2015. (Court Reporter Carla Bebault/Lori Simpson) (RLB) (Entered: 02/27/2015)
873 ORDER. Pursuant to Rule 52(c), and based on the entire record in this case, IT IS HEREBY ORDERED that Defendants Motion for Judgment on Partial Findings is DENIED. Signed by Judge Donovan W. Frank on 02/27/2015. (RLB) (Entered: 02/27/2015)
874 STIPULATION to Transport James Rud to Trial by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. Jointly Signed by Daniel E. Gustafson on behalf of Plaintiffs. (Ikeda, Scott) (Entered: 03/02/2015)
875 STIPULATION to Transport Peter Lonergan for Trial by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. Jointly Signed by Daniel E. Gustafson on behalf of Plaintiffs. (Ikeda, Scott) (Entered: 03/02/2015)
876 STIPULATION to Transport Kevin Karsjens for Trial by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. Jointly Signed by Daniel E. Gustafson on behalf of Plaintiffs. (Ikeda, Scott) (Entered: 03/02/2015)
877 ORDER TO TRANSPORT KEVIN KARSJENS FOR TRIAL. 1. The Minnesota Sex Offender Program shall transport Kevin Karsjens to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial between February 9, 2015 and March 25, 2015, at a specific day and time requested by counsel. Either party calling the witness shall request the witnesss transport with at least one full business day's notice and shall provide such notice to opposing counsel. Nothing in this Order modifies the parties' obligation to "provide at least 48 hours notice to opposing counsel of the witnesses to be called at trial." (Doc. No. 759). 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Kevin Karsjens. The United States Marshal shall return Mr. Karsjens to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 3/2/2015. (BJS) (Entered: 03/02/2015)
878 ORDER TO TRANSPORT PETER LONERGAN FOR TRIAL. 1. The Minnesota Sex Offender Program shall transport Peter Lonergan to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial between February 9, 2015 and March 25, 2015, at a specific day and time requested by counsel. Either party calling the witness shall request the witness's transport with at least one full business day's notice and shall provide such notice to opposing counsel. Nothing in this Order modifies the parties obligation to "provide at least 48 hours notice to opposing counsel of the witnesses to be called at trial." (Doc. No. 759). 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Peter Lonergan. The United States Marshal shall return Mr. Lonergan to the custody of the Minnesota Sex Offender

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Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 3/2/2015. (BJS) (Entered: 03/02/2015)
879 ORDER TO TRANSPORT JAMES RUD FOR TRIAL. 1. The Minnesota Sex Offender Program shall transport James Rud to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial between February 9, 2015 and March 25, 2015, at a specific day and time requested by counsel. Either party calling the witness shall request the witness's transport with at least one full business day's notice and shall provide such notice to opposing counsel. Nothing in this Order modifies the parties obligation to "provide at least 48 hours notice to opposing counsel of the witnesses to be called at trial." (Doc. No. 759). 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over James Rud. The United States Marshal shall return Mr. Rud to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 3/2/2015. (BJS) (Entered: 03/02/2015)
880 NOTICE OF APPEAL TO 8TH CIRCUIT by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. Filing fee $ 505, receipt number 0864−4323357. (Attachments: # 1 Appeal Information Form (Form A), # 2 Appeal Information Form (Form B), # 3 Certificate of Service)(Brennaman, Nathan) (Entered: 03/02/2015)
881 RECEIPT number 434761 in the amount of $5741.66. (kt) DOCUMENT QC'd by KT on 3/3/15. (kt) (Entered: 03/02/2015)
883 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 3/2/2015. Defendants' witness Nancy Johnston. Trial to resume on 3/3/2015. (Court Reporter Jeanne Anderson/Lori Simpson) (BJS) (Entered: 03/04/2015)
882 TRANSMITTAL OF APPEAL LETTER TO U. S. COURT OF APPEALS, 8TH CIRCUIT, Re: Notice of Appeal to 8th Circuit, 880 . (JAM) (Entered: 03/03/2015)
884 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 3/3/2015. Defendants' witnesses Kevin Karsjens, Peter Lonergan. Trial to resume on 3/4/2015. (Court Reporter Jeanne Anderson/Lori Simpson) (BJS) (Entered: 03/04/2015)
885 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 3/4/2015. Defendants' witnesses: Peter Lonergan, James Rud, Jannine Hebert. Trial to resume on 3/5/2015. (Court Reporter Jeanne Anderson/Lori Simpson) (BJS) (Entered: 03/05/2015)
887 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 3/5/2015. Defendants' witness: Jannine Hebert. Trial to resume on 3/9/2015. (Court Reporter Jeanne Anderson/Carla Bebault) (BJS) (Entered: 03/09/2015)
886 ORDER. Pursuant to and under the terms of the Order of March 17, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $5,471.70 drawn on this litigation's Registry account. Signed by Judge Donovan W. Frank on 3/9/2015. (Attachments: # 1 Attachment A)(BJS) cc: Finance on 3/9/2015 (JAM). (Entered: 03/09/2015)
888 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 3/9/2015. Defendants' witnesses: Haley Fox, Peter Puffer. Trial continued to 3/10/2015. (Court Reporter Jeanne Anderson/Carla Bebault) (BJS) (Entered: 03/09/2015)
889 USCA Case Number 15−1500 for 880 Notice of Appeal to 8th Circuit, filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Tom Lundquist, Dennis Benson, Lucinda Jesson, Jannine Hebert. (AKL) (Entered: 03/10/2015)
890 Recieved from Richard D. Sletten, Clerk of the United States District Court, District of Minnesota; check number 00434765 in the amount of $10,350.00. (AKL) (Entered: 03/10/2015)

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891 ORDER. Absent stipulation of the parties, the Court makes the rulings as listed on Exhibit A, attached hereto, with respect to the designations and objections relating to the Video Deposition of James Haaven taken on October 17, 2014. Signed by Judge Donovan W. Frank on 3/10/2015. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 03/10/2015)
892 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 3/10/2015. Defendants' witnesses: Peter Puffer, Dr. Elizabeth Barbo, James Berg, Shelby Richardson. Trial continued to 3/11/2015. (Court Reporter Jeanne Anderson/Carla Bebault) (BJS) (Entered: 03/11/2015)
893 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 3/11/2015. Defendant's witnesses: Shelby Richardson, Ann Zimmerman, Anne Pascucci, Dennis Benson (via video deposition). Trial continued to 3/12/2015. (Court Reporter Jeanne Anderson/Carla Bebault) (BJS) (Entered: 03/11/2015)
894 STIPULATION to Transport Lorenzo Thomas Sims, Jr. to Trial by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. Jointly Signed by Daniel Gustafson on behalf of Plaintiffs. (Ikeda, Scott) (Entered: 03/12/2015)
895 STIPULATION to Transport Jason Anthony Hayzlett to Trial by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. Jointly Signed by Daniel E. Gustafson on behalf of Plaintiffs. (Ikeda, Scott) (Entered: 03/12/2015)
896 STIPULATION to Transport Wayne Nicolaison for Trial by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. Jointly Signed by Daniel E. Gustafson on behalf of Plaintiffs. (Ikeda, Scott) (Entered: 03/12/2015)
897 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (DKB) (Entered: 03/12/2015)
898 TRANSCRIPT of Motions Hearing held on 1/14/2015 before Judge Donovan W. Frank. (107 pages). Court Reporter: Debra Beauvais (E−mail: Debra_Beauvais@mnd.uscourts.gov / Telephone: 612−664−5102). Redaction Request due 4/2/2015. Redacted Transcript Deadline set for 4/13/2015. Release of Transcript Restriction set for 6/10/2015. For information on redaction procedures, please review Local Rule 5.5. (DKB) (Entered: 03/12/2015)
899 ORDER TO TRANSPORT JASON ANTHONY HAYZLETT FOR TRIAL1. The Minnesota Sex Offender Program shall transport Jason Anthony Hayzlett to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial between February 9, 2015 and March 25, 2015, at a specific day and time requested by counsel. Either party calling the witness shall request the witness's transport with at least one full business day's notice and shall provide such notice to opposing counsel. Nothing in this Order modifies the parties' obligation to "provide at least 48 hours notice to opposing counsel of the witnesses to be called at trial." (Doc. No. 759). 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Jason Anthony Hayzlett. The United States Marshal shall return Mr. Hayzlett to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 03/12/2015. (BJS) (Entered: 03/12/2015)
900 ORDER TO TRANSPORT WAYNE NICOLAISON FOR TRIAL. 1. The Minnesota Sex Offender Program shall transport Wayne Nicolaison, to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial between February 9, 2015 and March 25, 2015, at a specific day and time requested by counsel. Either party calling the witness shall request the witness's transport with at least one full business day's notice and shall provide such notice to opposing counsel. Nothing in this Order modifies the parties obligation to "provide at least 48 hours notice to opposing counsel of the witnesses to be called at trial." (Doc. No. 759). 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Wayne Nicolaison. The United States Marshal shall return Mr. Nicolaison to the custody of the

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Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 03/12/2015. (BJS) (Entered: 03/12/2015)
901 ORDER TO TRANSPORT LORENZO THOMAS SIMS, JR. 1. The Minnesota Sex Offender Program shall transport Lorenzo Thomas Sims, Jr., to the Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota ("the Courthouse"), for attendance at trial between February 9, 2015 and March 25, 2015, at a specific day and time requested by counsel. Either party calling the witness shall request the witness's transport with at least one full business day's notice and shall provide such notice to opposing counsel. Nothing in this Order modifies the parties' obligation to "provide at least 48 hours notice to opposing counsel of the witnesses to be called at trial." (Doc. No. 759). 2. Upon arrival at the Courthouse, the United States Marshal shall assume custody over Lorenzo Thomas Sims, Jr. The United States Marshal shall return Mr. Sims to the custody of the Minnesota Sex Offender Program upon completion of his testimony or as otherwise directed by the Court. Signed by Judge Donovan W. Frank on 03/12/2015. (BJS) (Entered: 03/12/2015)
902 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 3/12/2015. Defendant's witnesses:Thomas McCartney, Jane Romayne, David Bornus, Elizabeth Peterson. Trial continues 3/16/2015. (Court Reporter Jeanne Anderson/Paula Richter) (BJS) (Entered: 03/12/2015)
903 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (JMA) (Entered: 03/13/2015)
904 TRANSCRIPT of Final Pretrial Conference held on 02/03/2015 before Judge Donovan W. Frank. (203 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 4/3/2015. Redacted Transcript Deadline set for 4/13/2015. Release of Transcript Restriction set for 6/11/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 03/13/2015)
905 NOTICE OF HEARING: Hearing set for 3/18/2015 08:30 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. Please be advised that a hearing has been scheduled for March 18, 2015 at 8:30 a.m. before Judge Donovan W. Frank on the following trial and post−trial issues: (1) the March 11, 2015 inquiry from the Rule 706 Experts, which the Court has not yet addressed, and the parties' respective responses to the inquiry; (2) the submission of written closing arguments; (3) the submission of any amended proposed findings of fact and conclusions of law; (4) the scope of the Courts Order on Phase One of Trial; (5) the scheduling of an additional hearing regarding proposed remedies, if necessary; and (6) the scheduling of Phase Two of Trial, if necessary.(BJS) (Entered: 03/16/2015)
NOTICE to USCA of subsequent filing in a civil case, Re: Transcript, 898 , Bench Trial − Continued, 893 , Order 900 , Notice of Hearing 905 , Transcript 904 , Order 891 , Order 899 , Stipulation, 895 , Bench Trial − Continued, 892 , Receipt 890 , Stipulation 896 , Notice of Filing of Official Transcript 903 , Stipulation 894 , Order 901 , Notice of Filing of Official Transcript 897 . (lmb) (Entered: 03/16/2015)
906 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 3/16/2015. Defendants' witnesses:Wayne Nicolaison, Jason Hayzlett, Kevin Moser, Dennis Benson (via videodeposition continued from 3/11/2015). Trial continued to 3/17/2015. (Court Reporter Jeanne Anderson/Lori Simpson) (BJS) (Entered: 03/20/2015)
907 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial continued on 3/17/2015. Defendants' witness: Dr. Lauren Herbert. Trial continued to 3/18/2015. (Court Reporter Jeanne Anderson/Paula Richter) (BJS) (Entered: 03/20/2015)
908 Minute Entry for proceedings held before Judge Donovan W. Frank: Bench Trial completed on 3/18/2015. (Court Reporter Jeanne Anderson) (BJS) (Entered: 03/20/2015)

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909 RECEIPT number 435740 in the amount of $5471.70. (kt) Qc'd on 3/25/2015 (AKL). (Entered: 03/23/2015)
910 ORDER REGARDING DEPOSITION DESIGNATIONS OR SUSAN PERSONS. Absent stipulation of the parties, the Court makes the rulings as listed on Exhibit A, attached hereto, with respect to the designations and objections relating to the Deposition of Susan Persons taken on October 3, 2014. Signed by Judge Donovan W. Frank on 3/23/2015. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 03/23/2015)
911 ORDER REGARDING DEPOSITION DESIGNATIONS OF JENNIFER L. JONES. Absent stipulation of the parties, the Court makes the rulings as listed on Exhibit A, attached hereto, with respect to the designations and objections relating to the Videotaped Deposition of Jennifer L. Jones taken on October 20, 2014. Signed by Judge Donovan W. Frank on 3/23/2015. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 03/23/2015)
912 AMENDED ORDER REGARDING DEPOSITION DESIGNATIONS OF JENNIFER L. JONES. Absent stipulation of the parties, the Court makes the rulings as listed on Exhibit A, attached hereto, with respect to the designations and objections relating to the Videotaped Deposition of Jennifer L. Jones taken on October 20, 2014. Signed by Judge Donovan W. Frank on 3/24/2015. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 03/24/2015)
913 RECEIPT number 434766 in the amount of $12389.38. (kt) Qc'd on 3/26/2015 (AKL). (Entered: 03/25/2015)
914 Proposed Findings of Fact by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 03/27/2015)
915 ORDER. Pursuant to and under the terms of the Order of March 17, 2014 (Doc. No. 434), the Clerk shall forthwith issue checks to: 1. Naomi Freeman in the amount of $28,862.02; 2. Deborah McCulloch in the amount of $28,438.55; 3. Michael Miner in the amount of $24,692.43; and 4. Robin J. Wilson in the amount of $27,458.60. The checks are to be drawn on this litigations Registry account. Signed by Judge Donovan W. Frank on 3/31/2015. (Attachments: # 1 Attachment A)(BJS) (Entered: 03/31/2015)
916 ORDER REGARDING DEFENDANTS' DEPOSITION DESIGNATIONS OF SUSAN PERSONS' DEPOSITION. Signed by Judge Donovan W. Frank on 3/31/2015. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 03/31/2015)
917 DEPOSITION TRANSCRIPT of Proceedings held on August 11, 2014 (Dennis L. Benson) (Redacted). (Gustafson, Daniel) (Entered: 04/02/2015)
918 ORDER. Pursuant to and under the terms of the Order of March 17, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $6,976.70 drawn on this litigations Registry account. Signed by Judge Donovan W. Frank on 4/6/2015. (Attachments: # 1 Exhibit(s) A)(BJS) (Entered: 04/06/2015)
919 DEPOSITION TRANSCRIPT of Proceedings held on October 17, 2014. (Brennaman, Nathan) (Entered: 04/07/2015)
920 PLAINTIFFS' FINAL EXHIBIT LIST. (BJS) (Entered: 04/08/2015)
921 DEFENDANTS' FINAL EXHIBIT LIST. (BJS) (Entered: 04/08/2015)
922 RECEIPT number 437400 in the amount of $27,458.60. (kt) QC'd on 4/16/2015 (JAM). (Entered: 04/10/2015)
923 RECEIPT number 437381 in the amount of $24,692.43. (kt) QC'd on 4/16/2015 (JAM). (Entered: 04/10/2015)
924 RECEIPT number 437393 in the amount of $28,438.55. (kt) QC'd on 4/16/2015 (JAM). (Entered: 04/10/2015)
925 MOTION to Dismiss/General Counts IV, XI, XII, and XIII of the Third Amended Complaint Without Prejudice by James Allen Barber, Craig Allen Bolte, Kaine

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04/17/2015
04/17/2015
04/17/2015

Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 04/10/2015)
926 NOTICE OF HEARING ON MOTION 925 MOTION to Dismiss/General Counts IV, XI, XII, and XIII of the Third Amended Complaint Without Prejudice : at date and time to be determined. (Gustafson, Daniel) (Entered: 04/10/2015)
927 MEMORANDUM in Support re 925 MOTION to Dismiss/General Counts IV, XI, XII, and XIII of the Third Amended Complaint Without Prejudice filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 04/10/2015)
928 MEET and CONFER STATEMENT re 925 Motion to Dismiss/General, filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 04/10/2015)
929 CERTIFICATE OF SERVICE ON PROPOSED ORDER by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer re 925 MOTION to Dismiss/General Counts IV, XI, XII, and XIII of the Third Amended Complaint Without Prejudice (Gustafson, Daniel) (Entered: 04/10/2015)
930 BRIEF Defendants' Closing Argument. (Brennaman, Nathan) (Entered: 04/10/2015)
931 Proposed Findings of Fact by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Brennaman, Nathan) (Entered: 04/10/2015)
932 TEXT ONLY ORDER: On April 10, 2015, Plaintiffs filed a Motion to Dismiss Counts IV, XI, XII, and XIII of the Third Amended Complaint. (Doc. No. 925 ). Defendants shall file a response to Plaintiffs' motion by 4:30 p.m. on April 17, 2015. Upon receipt of Defendants' response, the Court will issue an Order without hearing. Signed by Judge Donovan W. Frank on 4/13/2015. (BJS) (Entered: 04/13/2015)
933 BRIEF (Plaintiffs' Reply Closing Argument). (Gustafson, Daniel) (Entered: 04/15/2015)
934 RECEIPT number 437396 in the amount of $28,862.02. (kt) (Entered: 04/17/2015)
935 NOTICE of Filing of Official Transcript. This filing has 25 transcript(s) associated with it. (JMA) (Entered: 04/17/2015)
936 TRANSCRIPT of Court Trial, Volume I, held on 02/09/2015 before Judge Donovan W. Frank. (218 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
937 TRANSCRIPT of Court Trial, Volume II, held on 02/10/2015 before Judge Donovan W. Frank. (246 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
938 TRANSCRIPT of Court Trial, Volume III, held on 02/11/2015 before Judge Donovan W. Frank. (223 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
939 TRANSCRIPT of Court Trial, Volume IV held on 02/12/2015 before Judge Donovan W. Frank. (221 pages). Court Reporter: Jeanne Anderson (E−mail:

04/17/2015 04/17/2015 04/17/2015 04/17/2015 04/17/2015 04/17/2015 04/17/2015 04/17/2015 04/17/2015

Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
940 TRANSCRIPT of Court Trial, Volume V, held on 02/13/2015 before Judge Donovan W. Frank. (179 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
941 TRANSCRIPT of Court Trial, Volume VI, held on 02/17/2015 before Judge Donovan W. Frank. (248 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
942 TRANSCRIPT of Court Trial, Volume VII, held on 02/18/2015 before Judge Donovan W. Frank. (287 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
943 TRANSCRIPT of Court Trial, Volume VIII, held on 02/19/2015 before Judge Donovan W. Frank. (274 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
944 TRANSCRIPT of Court Trial, Volume IX, held on 02/20/2015 before Judge Donovan W. Frank. (270 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
945 TRANSCRIPT of Court Trial, Volume X, held on 02/23/2015 before Judge Donovan W. Frank. (240 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
946 TRANSCRIPT of Court Trial, Volume XI, held on 02/24/2015 before Judge Donovan W. Frank. (265 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
947 TRANSCRIPT of Court Trial, Volume XII held on 02/25/2015 before Judge Donovan W. Frank. (258 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
948 TRANSCRIPT of Court Trial, Volume XIII, held on 02/26/2015 before Judge Donovan W. Frank. (147 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)

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949 TRANSCRIPT of Court Trial, Volume XIV held on 02/27/2015 before Judge Donovan W. Frank. (121 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
950 TRANSCRIPT of Court Trial, Volume XV, held on 03/02/2015 before Judge Donovan W. Frank. (232 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
951 TRANSCRIPT of Court Trial, Volume XVI held on 03/03/2015 before Judge Donovan W. Frank. (268 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
952 TRANSCRIPT of Court Trial, Volume XVII held on 03/04/2015 before Judge Donovan W. Frank. (259 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
953 TRANSCRIPT of Court Trial, Volume XVIII held on 03/05/2015 before Judge Donovan W. Frank. (248 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
954 TRANSCRIPT of Court Trial, Volume XIX held on 03/09/2015 before Judge Donovan W. Frank. (206 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
955 TRANSCRIPT of Court Trial, Volume XX, held on 03/10/2015 before Judge Donovan W. Frank. (249 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
956 TRANSCRIPT of Court Trial, Volume XXI, held on 03/11/2015 before Judge Donovan W. Frank. (118 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
957 TRANSCRIPT of Court Trial, Volume XXII, held on 03/12/2015 before Judge Donovan W. Frank. (149 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
958 TRANSCRIPT of Court Trial, Volume XXIII, held on 03/16/2015 before Judge Donovan W. Frank. (256 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of

04/17/2015
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04/17/2015 04/20/2015 04/24/2015
05/06/2015 06/09/2015 06/17/2015

Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
959 TRANSCRIPT of Court Trial, Volume XXIV, held on 03/17/2015 before Judge Donovan W. Frank. (95 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
960 TRANSCRIPT of Court Trial, Volume XXV, held on 03/18/2015 before Judge Donovan W. Frank. (48 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 5/8/2015. Redacted Transcript Deadline set for 5/18/2015. Release of Transcript Restriction set for 7/16/2015. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 04/17/2015)
961 MEMORANDUM in Opposition re 925 MOTION to Dismiss/General Counts IV, XI, XII, and XIII of the Third Amended Complaint Without Prejudice filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Ikeda, Scott) (Entered: 04/17/2015)
962 RECEIPT number 437719 in the amount of $6,976.70. (JDF) DOCUMENT QC'D on 4/27/2015 (las). (Entered: 04/21/2015)
963 ORDER. 1. The Court defers ruling on Plaintiffs' Motion to Dismiss Counts IV, XI, XII, and XIII of the Third Amended Complaint Without Prejudice (Doc. No. 925 ). 2. Pursuant to Rule 62.1, the Court indicates that it will partially grant Plaintiffs' motion and dismiss Counts IV, XI, XII, and XIII with prejudice upon remand. (Written Opinion). Signed by Judge Donovan W. Frank on 4/24/2015. (BJS) (Entered: 04/24/2015)
964 ORDER of USCA as to 880 Notice of Appeal to 8th Circuit, filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Tom Lundquist, Dennis Benson, Lucinda Jesson, Jannine Hebert (received electronically from COA) (kt) (Entered: 05/11/2015)
965 TEXT ONLY NOTICE: The Court's Findings of Fact, Conclusions of Law, and Order in this matter will be filed on or around 11:00 a.m. on Wednesday, June 17, 2015. (BJS) (Entered: 06/09/2015)
966 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER. 1. Plaintiffs' request for declaratory relief with respect to Counts I and II of their Third Amended Complaint (Doc. No. 635 ) is GRANTED. 2. The parties shall participate in a Remedies Phase pre−hearing conference on August 10, 2015, at 9:00 a.m., to discuss the relief that they find appropriate with respect to both Counts I and II, in light of the above requirements and recommendations. In addition to counsel for the parties, the Court urges the following individuals to be present and participate in the pre−hearing conference: Governor Mark B. Dayton; Representative Kurt L. Daudt (Speaker of the House); Senator Thomas M. Bakk (Majority Leader of the Senate); Attorney General Lori Swanson; Commissioner Lucinda E. Jesson; Deputy Commissioner Anne M. Barry; Robin Vue Benson (DHS attorney); Jannine Hbert; Nancy Johnston; former Chief Justice Eric J. Magnuson (Chair of the Task Force); former Chief Judge James M. Rosenbaum (Vice Chair of the Task Force); the Honorable Joanne M. Smith (Task Force Member); Minnesota Commissioner of Corrections Tom Roy (Task Force Member); Eric S. Janus (Dean of William Mitchell College of Law and Task Force Member); Kelly Lyn Mitchell (Executive Director of the Sentencing Guidelines Commission and Task Force Member); Mark A. Ostrem (Olmstead County Attorney and Task Force Member); Ryan B. Magnus (defense attorney and Task Force Member); John Kirwin (Assistant Hennepin County Attorney); and Donna Dunn (Executive Director of the Minnesota Coalition Against Sexual Assault and Task Force Member).14 The conference will be presided over by the undersigned, along with United States Magistrate Judge Jeffrey J. Keyes. The conference will take place in the 7th Floor Conference Room, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota. 3. Counts VIII, IX, and X, will be tried in the second phase of trial ("Phase Two"). Phase Two will be

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addressed at the Remedies Phase pre−hearing conference on August 10, 2015. 4. Counts IV, XI, XII, and XIII will be addressed under separate Order. (Written Opinion). Signed by Judge Donovan W. Frank on 6/15/2015. (BJS) (Entered: 06/17/2015)
967 ORDER. 1. The Court intends to grant Plaintiffs' Motion to Dismiss Counts IV, XI, XII, and XIII of the Third Amended Complaint Without Prejudice (Doc. No. 925 ) on the condition that the motion be dismissed with prejudice. 2. Plaintiffs may refuse the Court's Rule 41(a)(2) dismissal condition and withdraw their motion on or before June 26, 2015. Failure to timely withdraw the motion shall constitute a binding election to accept the condition of dismissal with prejudice. 3. Pursuant to Rule 23(e), if the Rule 41(a)(2) motion is not withdrawn, the Court will hold a fairness hearing on the dismissal of Counts IV, XI, XII, and XIII on August 10, 2015, at 2:00 p.m., in Courtroom 7C, 7th Floor, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota. 4. Counsel for Plaintiffs is directed to give notice of the hearing and the proposed dismissal to the class members by mail on or before July 20, 2015. The parties shall negotiate the content of the class notice and shall submit a joint proposed notice to the Court on or before July 8, 2015. If the parties are unable to agree on the content of the notice, the parties shall each submit a proposed notice, together with briefing not to exceed ten pages per party, on or before July 13, 2015.(Written Opinion). Signed by Judge Donovan W. Frank on 6/17/2015. (BJS) (Entered: 06/17/2015)
968 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Brennaman, Nathan) (Entered: 06/17/2015)
969 TEXT ONLY ORDER. The Court invites the following individuals to attend the Remedies Phase pre−hearing conference in this matter on August 10, 2015: (1) Jeanne Ronayne (acting Executive Director of the Minnesota Coalition Against Sexual Assault); (2) Nathaniel J. Reitz (acting Executive Director of the Minnesota Sentencing Guidelines Commission); and (3) Roberta Opheim (Ombudsman for Mental Health and Developmental Disabilities). Signed by Judge Donovan W. Frank on 6/18/2015. (BJS) (Entered: 06/18/2015)
970 LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer . (Gustafson, Daniel) (Entered: 06/22/2015)
971 ORDER. 1. The parties shall each file simultaneous briefs, not to exceed ten (10) pages per side, regarding the narrow issue of whether an appeal is appropriate at this time under Rule 54(b) or 28 U.S.C. § 1292(b), by July 1, 2015. 2. The parties may each file simultaneous response briefs, not to exceed five (5) pages per side, by July 9, 2015. 3. The Court reserves the right to set a hearing on the parties' briefs if necessary. Signed by Judge Donovan W. Frank on 6/23/2015. (BJS) (Entered: 06/23/2015)
972 BRIEF (Memorandum in Opposition to Defendants' Request for an Appeal Under Rule 54(b) or 28 U.S.C. § 1292(b)). (Gustafson, Daniel) (Entered: 07/01/2015)
973 BRIEF (Defendants' Brief Regarding Certification Under 28 U.S.C. 1292(b) or, in the Alternative, Under Fed. R. Civ. P. 54(b)) filed by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Ikeda, Scott) (Entered: 07/01/2015)
974 AFFIDAVIT in Support re 973 Brief, (Affidavit of Scott H. Ikeda). (Attachments: # 1 Exhibit(s) A−C)(Ikeda, Scott) (Entered: 07/01/2015)
975 REPLY re 973 Brief, (Plaintiffs' Reply Memorandum in Opposition to Defendants' Brief Regarding Certification Under 28 U.S.C. 1292(b) or, in the Alternative, Under Fed. R. Civ. P. 54(b)) filed by All Plaintiffs. (Gustafson, Daniel) (Entered: 07/09/2015)
976 REPLY re 972 Brief (Defendants' Reply Brief Regarding Certification under 28 U.S.C. 1292(b) or, in the Alternative Under Fed.R.Civ.P. 54(b) filed by Dennis

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07/29/2015

Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Ikeda, Scott) (Entered: 07/09/2015)
977 AFFIDAVIT in Support re 976 Reply, (Second Affidavit of Scott H. Ikeda). (Attachments: # 1 Exhibit(s) Cover Page, # 2 Exhibit(s) A−K, # 3 Exhibit(s) L−Q)(Ikeda, Scott) (Entered: 07/09/2015)
978 NOTICE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman (Notice of Voluntary Dismissal of Claims and Fairness Hearing to Individuals Civilly Committed to the MN Sex Offender Program) (Ikeda, Scott) (Entered: 07/13/2015)
979 BRIEF (Defendants' Brief Regarding Class Notice of Dismissal of Counts IV, XI, XII, and XIII With Prejudice). (Ikeda, Scott) (Entered: 07/13/2015)
980 BRIEF (Memorandum in Support of Plaintiffs' Version of Class Notice Regarding Dismissal of Counts IV, XI, XII, and XIII). (Gustafson, Daniel) (Entered: 07/13/2015)
981 Declaration of Daniel E. Gustafson in Support of 980 Brief filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A)(Gustafson, Daniel) (Entered: 07/13/2015)
982 ORDER REGARDING CLASS NOTICE. (See Order for details.) Signed by Judge Donovan W. Frank on 07/17/2015. (RLB) (Entered: 07/17/2015)
983 NOTICE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (Notice of Mailing of Class Notice) (Gustafson, Daniel) (Entered: 07/20/2015)
984 MEMORANDUM OPINION AND ORDER. Defendants' request for certification of appeal pursuant to 28 U.S.C. § 1292(b) or, alternatively, Rule 54(b) (Doc. No. 973) is DENIED. (Written Opinion). Signed by Judge Donovan W. Frank on 9/22/2015. (BJS) (Entered: 07/22/2015)
985 ORDER APPOINTING SPECIAL MASTER. 1. The Court appoints former Chief Justice Eric J. Magnuson as Special Master in this matter pursuant to Rule 53 of the Federal Rules of Civil Procedure. Pursuant to Rule 53, and the Court's inherent authority to seek assistance in order to administer its cases efficiently, economically, and in the interests of justice, the Court concludes that the appointment of a Special Master in this case is necessary to coordinate the efforts of the parties following the Court's determination of Defendants' liability on Counts I and II of Plaintiffs Third Amended Complaint (Doc. No. 635), to accommodate the public interest in achieving prompt and just solutions to the serious constitutional problems identified by the Court, and to lessen the expense and strain of resources on the Court and the parties in a case of this magnitude. 2. In his role as Special Master, Eric J. Magnuson is authorized to provide oversight of the injunctive relief imposed by the Court with respect to Counts I and II of Plaintiffs' Third Amended Complaint (Doc. No. 635), and is further authorized to perform any ancillary acts necessary to properly perform his duties under this Order and under Rule 53. Under Rule 53(c), Special Master Magnuson "has the authority to regulate all proceedings and take all appropriate measures to perform fairly and efficiently" his assigned duties. The role of Special Master Magnuson is viewed by the Court as a nonadversarial role and, as such, the Court assumes and expects that the parties will cooperate and communicate with Special Master Magnuson. 3. Special Master Magnuson has agreed to serve in a pro bono capacity at no cost to the parties or expense to the Court. Because Special Master Magnuson has agreed to serve in a pro bono capacity, all fees and compensation for the time and services rendered shall be his responsibility, and will not be borne by the parties in this matter. 4. The Court reserves the right to amend this Order at any time, upon notice to the parties, and an opportunity to be heard. Signed by Judge Donovan W. Frank on 7/23/2015. (BJS) (Entered: 07/23/2015)
986 ORDER. 1. The August 10, 2015 conference will take place in the Fifth Floor Conference Room, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert Street, St. Paul, Minnesota. 2. Similar to other Rule 16 scheduling conferences, and to plan and discuss pending issues, the August 10, 2015 conference will be closed to the public to allow the Court to hear and assess remedy proposals in

07/29/2015
08/03/2015 08/05/2015
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08/06/2015
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advance of the public Remedies Phase hearing. 3. The August 10, 2015 conference will be presided over by the undersigned, United States Magistrate Judge Jeffrey J. Keyes, and former Chief Justice Eric J. Magnuson, who will be serving as Special Master in a pro bono capacity to oversee the injunctive relief imposed by the Court with respect to Counts I and II. 4. Following the August 10, 2015 conference, the Court will establish a schedule regarding next steps in this proceeding. (Written Opinion). Signed by Judge Donovan W. Frank on 7/29/2015. (BJS) (Entered: 07/29/2015)
987 TEXT ONLY ORDER: Pursuant to the request of Senator Thomas M. Bakk, the Court invites the following individuals to attend the August 10, 2015 conference: (1) Senator Katie Sieben; (2) Senator Ron Latz; (3) Senator Tony Lourey; (4) Senator Kathy Sheran; (5) Senator Michelle R. Bensen; (6) Senator Julie A. Rosen; and (7) Senator Warren Limmer. Signed by Judge Donovan W. Frank on 7/29/2015. (BJS) (Entered: 07/29/2015)
988 TEXT ONLY ORDER: The Court invites Representative Tina Liebling (Task Force Member) to attend the conference in this matter on August 10, 2015. Signed by Judge Donovan W. Frank on 8/3/2015. (BJS) (Entered: 08/03/2015)
989 TEXT ONLY ORDER: Pursuant to the request of Representative Paul Thissen, the Court invites the following individuals to attend the August 10, 2015 conference: (1) Representative Debra Hilstrom (DFL Lead on the Public Safety and Crime Prevention Policy and Finance Committee); and (2) Representative Dan Schoen (Member of the Health and Human Services Finance and Public Safety Committees). Signed by Judge Donovan W. Frank on 8/5/2015. (BJS) (Entered: 08/05/2015)
990 LETTER TO DISTRICT JUDGE by INTERNATIONAL HUMANITARIAN LAW INSTITUTE Requesting leave to participate in remedies phase hearing of Aug. 10, 2015. (Attachments: # 1 Exhibit(s) 1)(Nickitas, Peter) (Entered: 08/05/2015)
991 NOTICE of Appearance by Mary Andreleita Walker and John Borger on behalf of Star Tribune Media Company LLC, American Public Media Group, The Associated Press, Inc., CBS Broadcasting Inc, KSTP−TV, LLC, The Minnesota Society of Professional Journalists, MinnPost, Public Record Media, The Reporters Committee for Freedom of the Press. (Walker, Mary) Modified text on 8/6/2015 (lmb). (Entered: 08/06/2015)
992 NOTICE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (Notice of Objections Received by Plaintiffs' Counsel) (Gustafson, Daniel) (Entered: 08/06/2015)
993 Declaration of Daniel E. Gustafson in Support of 992 Notice (Other), filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 Exhibit(s) C)(Gustafson, Daniel) (Entered: 08/06/2015)
994 OBJECTIONS to Order entered on 6/17/15 at Doc. No. 967 . (LPH) (Entered: 08/06/2015)
995 NOTICE of Appearance by Mary Andreleita Walker on behalf of The New York Times Company. (Walker, Mary) (Entered: 08/06/2015)
996 MOTION to Intervene and Motion of News Organizations for Access to Court Proceedings by American Public Media Group, CBS Broadcasting Inc, KSTP−TV, LLC, MinnPost, Public Record Media, Star Tribune Media Company LLC, The Associated Press, Inc., The Minnesota Society of Professional Journalists, The New York Times Company, The Reporters Committee for Freedom of the Press, the Saint Paul Pioneer Press, Times Media d/b/a the Saint Cloud Times, the Minnesota Broadcasters Association, the Minnesota Newspaper Association, the Minnesota Coalition on Government Information. (Walker, Mary) Modified filers on 8/7/2015 (lmb). (Entered: 08/06/2015)
997 MEMORANDUM in Support re 996 MOTION to Intervene and Motion of News Organizations for Access to Court Proceedings filed by American Public Media

Group, CBS Broadcasting Inc, KSTP−TV, LLC, MinnPost, Public Record Media, Star Tribune Media Company LLC, The Associated Press, Inc., The Minnesota Society of Professional Journalists, The New York Times Company, The Reporters Committee for Freedom of the Press. EXHIBITS FILED IN ERROR−WILL REFILE AS SEPARATE ENTRY. (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3)(Walker, Mary) Modified text on 8/7/2015 (lmb). (Entered: 08/06/2015)

08/06/2015

998 TEXT ONLY ORDER: On August 5, 2015, the International Humanitarian Law Institute (IHLI) submitted a letter to the Court requesting permission to attend the August 10, 2015 conference in order to "be included in discussion of remedies [and] to assist the Court in considering [ ]particular Equal Protection issues more carefully." (Doc. No. 990, Ex. 1.) The IHLI previously filed a motion for leave to submit an amicus brief regarding the right to a jury trial in civil commitment proceedings under the Equal Protection Clause (Doc. No. 632), which the Court denied because the subject matter of the proposed amicus brief was not within the scope of the current litigation (Doc. No. 648). The Court respectfully denies the IHLI's present request for the same reasons. Signed by Judge Donovan W. Frank on 8/6/2015. (BJS) (Entered: 08/06/2015)

08/07/2015

999 LR7.1/LR72.2 WORD COUNT COMPLIANCE CERTIFICATE by American Public Media Group, CBS Broadcasting Inc, KSTP−TV, LLC, MinnPost, Minnesota Society of Professional Journalists, the, Public Record Media, Reporters Committee for Freedom of the Press, the, Star Tribune Media Company LLC, The Associated Press, The New York Times Company re 997 Memorandum in Support of Motion,,. (Walker, Mary) (Entered: 08/07/2015)

08/07/2015

1000

DECLARATION of Leita Walker re 997 Memorandum in Support of Motion,, by American Public Media Group, CBS Broadcasting Inc, KSTP−TV, LLC, MinnPost, Minnesota Society of Professional Journalists, the, Public Record Media, Reporters Committee for Freedom of the Press, the, Star Tribune Media Company LLC, The Associated Press, The New York Times Company . (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3)(Walker, Mary) (Entered: 08/07/2015)

08/07/2015 1001 NOTICE of Appearance by Mark R Anfinson on behalf of Minnesota Newspaper Association, the. (Anfinson, Mark) (Entered: 08/07/2015)

08/07/2015 1002 ORDER. 1. The News Organizations' motion (Doc. No. 996 ) is DENIED, consistent with the terms of this Order. (Written Opinion) Signed by Judge Donovan W. Frank on 8/7/2015. (BJS) (Entered: 08/07/2015)

08/10/2015 1003 Minute Entry for proceedings held before Judge Donovan W. Frank: Remedies Pre−Hearing Conference held on 8/10/2015. (Court Reporter NA) (BJS) (Entered: 08/10/2015)

08/10/2015

1004

Minute Entry for proceedings held before Judge Donovan W. Frank: Motion Hearing held on 8/10/2015 re 925 MOTION to Dismiss/General Counts IV, XI, XII, and XIII of the Third Amended Complaint Without Prejudice filed by Bradley Wayne Foster, David Leroy Gamble, Jr., Craig Allen Bolte, Brian K. Hausfeld, Kaine Joseph Braun, Dennis Richard Steiner, James John Rud, Kenny S. Daywitt, Kevin John DeVillion, James Allen Barber, James Matthew Noyer, Sr., Christopher John Thuringer, Peter Gerard Lonergan, Kevin Scott Karsjens. Written Order to issue. (Court Reporter Jeanne Anderson) (BJS) (Entered: 08/10/2015)

08/10/2015

1005

ORDER. 1. Plaintiffs' Motion to Dismiss Counts IV, XI, XII, and XIII of the Third Amended Complaint (Doc. No. 925 ) is GRANTED. 2. The objections filed by Plaintiff Class Members (Doc. Nos. 993 & 994 ) are respectfully OVERRULED. 3. Counts IV, XI, XII, and XIII of the Third Amended Complaint (Doc. No. 635 ) are DISMISSED WITH PREJUDICE. Signed by Judge Donovan W. Frank on 8/10/2015. (BJS) (Entered: 08/10/2015)

08/12/2015

1006

SCHEDULING ORDER. 1. Plaintiffs shall file their remedy proposals and their supporting brief with the Court no later than August 20, 2015. 2. Defendants shall file their remedy proposals and their supporting brief with the Court no later than September 21, 2015. 3. Plaintiffs shall file their reply brief with the Court no later than September 25, 2015. 4. The Court shall hear arguments from the parties on their remedy proposals on September 30, 2015, at 9:00 a.m., in Courtroom 7C, 7th Floor, Warren E. Burger Federal Building and United States Courthouse, 316 North Robert

Street, St. Paul, Minnesota. 5. It would be in the best interests of everyone, including the public at large, if the State of Minnesota began preparing now to solve the previously determined and identified constitutional infirmities in the Minnesota Sex Offender Program ("MSOP") and its corresponding statutory scheme. The Court has previously identified a variety of specific measures for Defendants to implement in order to remedy the constitutional deficiencies at the heart of this case in a way that will protect and promote public safety and the civil commitment and criminal justice systems operation. For example, the state could: (i) create assessment teams and enter contracts to provide independent, periodic risk assessments; (ii) develop transitional services; (iii) establish facilities to be used for less restrictive alternative options; and (iv) design a statewide public education plan on civil commitment, alternative facilities, provisional discharge conditions, and risk of re−offense data, as much of the information that is being stated publicly is either inaccurate, unfounded, or misleading. Recognizing the history of the states failure to meet minimum constitutional requirements, as well as the continuing injury and harm resulting from these serious violations, the Court notes that, at some point, if the state proves unwilling or incapable of remedying the constitutional violations, to which insufficient funding is not a defense, that failure may demand a more forceful solution. Any delay by the state to prepare for the inevitable relief to be imposed by the Court in light of the previously determined constitutional violations would only increase the risk to public safety. (Written Opinion). Signed by Judge Donovan W. Frank on 8/12/2015. (BJS) (Entered: 08/12/2015)

08/13/2015

NOTICE to USCA of subsequent filing in a civil case re: 964 ORDER of USCA: 967 Order issued on 06/17/2015 by Judge Donovan W. Frank, and 1005 Order issued on 08/10/2015 by Judge Donovan W. Frank.(TSS) (Entered: 08/13/2015)

08/14/2015 1007 LETTER TO DISTRICT JUDGE by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman . (Brennaman, Nathan) (Entered: 08/14/2015)

08/17/2015 1008 TEXT ONLY ORDER: Absent further order of the Court, the Rule 706 Experts are hereby discharged from their duties in this matter. Signed by Judge Donovan W. Frank on 8/17/2015. (BJS) (Entered: 08/17/2015)

08/19/2015 1009 BRIEF (Plaintiffs' Remedies Proposal and Brief in Support of the Remedies Proposal). (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 08/19/2015)

08/19/2015 1010 Declaration of Daniel E. Gustafson in Support of 1009 Brief filed by All Plaintiffs. (Attachments: # 1 Exhibit(s) A)(Gustafson, Daniel) (Entered: 08/19/2015)

08/20/2015

1011

THIRD AMENDED STAY ORDER. 1. Stay of Cases Pending Resolution of Civil No. 11−3659 (DWF/JJK). All current and future civil rights cases brought by an individual or group of individuals who has or have been civilly committed to the Minnesota Sex Offender Program that are sufficiently related to Karsjens et al. v. Jesson et al., Civil No. 11−3659 (DWF/JJK), are hereby STAYED in all respects, pending the litigation in Karsjens, or until further order of the Court stating otherwise. 2. Service. The Clerk of the United States District Court for the District of Minnesota is respectfully directed to file this Order in each stayed case and provide a copy of this Order, via United States mail, to every Plaintiff in all of the cases that are stayed. Signed by Chief Judge John R. Tunheim (Cc: Plaintiffs via U.S. mail on 8/21/15.)(TSS) (Entered: 08/20/2015)

09/02/2015 1012 ORDER. 1. Technical Advisor David Ferleger is hereby discharged from his duties in this matter. Having satisfied all of his obligations in this proceeding, the Court thanks the Technical Advisor for his assistance and technical advisement in this matter. Signed by Judge Donovan W. Frank on 9/2/2015. (BJS) (Entered: 09/02/2015)

09/04/2015 1013 MOTION to Appear as Amicus Curiae for Leave to File Amicus Memorandum Concerning Remedies by Hennepin County. (Kirwin, John) (Entered: 09/04/2015)

09/04/2015

1014

LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer . (Gustafson, Daniel) (Entered: 09/04/2015)

09/04/2015 1015 USCA JUDGMENT as to 880 Notice of Appeal to 8th Circuit, filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Tom Lundquist, Dennis Benson, Lucinda Jesson, Jannine Hebert (received electronically from COA) (kt) (Entered: 09/08/2015)

09/04/2015 1016 MANDATE of USCA as to 880 Notice of Appeal to 8th Circuit, filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Tom Lundquist, Dennis Benson, Lucinda Jesson, Jannine Hebert (received electronically from COA) (kt) (Entered: 09/08/2015)

09/08/2015 1017 MOTION to Appear as Amicus Curiae Concerning Remedies by ACLU of Minnesota. (Nelson, Teresa) (Entered: 09/08/2015)

09/08/2015

1018

LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer . (Gustafson, Daniel) (Entered: 09/08/2015)

09/09/2015

1019

TEXT ONLY ORDER: 1. The Hennepin County Attorney's Motion for Leave to File Amicus Memorandum Concerning Remedies (Doc. No. 1013 ) is GRANTED. 2. The Hennepin County Attorney is granted leave to file an amicus brief not to exceed 6,000 words by September 14, 2015. Signed by Judge Donovan W. Frank on 9/9/15. (BJS) (Entered: 09/09/2015)

09/09/2015

1020

TEXT ONLY ORDER: 1. Eric Janus and The American Civil Liberties Union of Minnesota's Motion for Leave to File Brief of Amici Curiae Concerning Remedies (Doc. No. 1017 ) is GRANTED. 2. Eric Janus and The American Civil Liberties Union of Minnesota are granted leave to file an amicus brief not to exceed 6,000 words by September 14, 2015. Signed by Judge Donovan W. Frank on 9/9/15. (BJS) (Entered: 09/09/2015)

09/14/2015 1021 BRIEF of Amici Curiae Eric Janus and ACLU−MN. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate, # 2 Certificate of Service)(Nelson, Teresa) (Entered: 09/14/2015)

09/14/2015 1022 Declaration of Teresa Nelson in Support of 1021 Brief filed by ACLU of Minnesota. (Attachments: # 1 Exhibit(s))(Nelson, Teresa) (Entered: 09/14/2015)

09/14/2015 1023 MEMORANDUM by Hennepin County Amicus Curiae Memorandum of Hennepin County Attorney Addressing Remedies filed by Hennepin County. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Kirwin, John) (Entered: 09/14/2015)

09/15/2015

1024

ORDER. Pursuant to and under the terms of the Order of March 17, 2014, the Clerk shall forthwith issue a check to David Ferleger in the amount of $405 drawn on this litigations Registry account. Signed by Judge Donovan W. Frank on 9/15/2015. (Attachments: # 1 Attachment A)(BJS) cc: finance on 9/15/2015 (JAM). (Entered: 09/15/2015)

09/21/2015 1025 LETTER TO DISTRICT JUDGE by Hennepin County . (Kirwin, John) (Entered: 09/21/2015)

09/21/2015 1026 BRIEF Defendants' Brief on Remedies (pursuant to Doc. 1006). (Brennaman, Nathan) (Entered: 09/21/2015)

09/21/2015 1027 AFFIDAVIT of Lucinda Jesson re 1026 Brief (Defendants' Brief on Remedies) by Dennis Benson, Jannine Hebert, Lucinda Jesson, Nancy Johnston, Tom Lundquist, Kevin Moser, Ann Zimmerman. (Attachments: # 1 Exhibit(s) A)(Brennaman, Nathan) (Entered: 09/21/2015)

09/21/2015 1028 RECEIPT number 445868 in the amount of $405.00. (kt) Qc'd on 10/2/2015 (AKL). (Entered: 09/21/2015)

09/24/2015 1029 REPLY re 1009 Brief (Plaintiffs' Reply Brief in Support of Remedies Proposal) filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 09/24/2015)

09/30/2015 1030 Minute Entry for proceedings held before Judge Donovan W. Frank: Remedies Hearing held on 9/30/2015. Matter under advisement; written order to issue. (Court Reporter Jeanne Anderson) (BJS) (Entered: 09/30/2015)

10/06/2015 1031 REVIEW OF INVOICES SUBMITTED BY THE JENSEN SETTLEMENT AGREEMENT COURT MONITOR AND KARSJENS LITIGATION TECHNICAL ADVISOR dated September 29, 2015. (BJS) (Entered: 10/07/2015)

10/07/2015 1032 LETTER from David Ferleger dated October 7, 2015, in Re: Review of Invoices Submitted by the Jensen Settlement Agreement Court Monitor and Karsjens Litigation Technical Advisor. (BJS) (Entered: 10/07/2015)

10/13/2015 1033 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (JMA) (Entered: 10/13/2015)

10/13/2015

1034

TRANSCRIPT of Remedies Hearing held on 09/30/2015 before Judge Donovan W. Frank. (89 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 11/3/2015. Redacted Transcript Deadline set for 11/13/2015. Release of Transcript Restriction set for 1/11/2016. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 10/13/2015)

10/29/2015

1035

FIRST INTERIM RELIEF ORDER. 1. Defendants are hereby enjoined as follows: a. Defendants must promptly conduct independent risk and phase placement reevaluation of all current patients at the MSOP. These independent risk assessments shall determine whether each patient (1) continues to meet the constitutional standard for commitment as set forth in Call v. Gomez, 535 N.W.2d 312 (Minn. 1995); (2) could be appropriately transferred or provisionally discharged; (3) could be housed in or monitored by a less restrictive alternative; and (4) is in the proper treatment phase. Defendants must complete these assessments according to the following time lines: i. Within 30 days, Defendants shall complete reevaluations of the six individuals in the Alternative Program who were designated for transfer to Cambridge, Eric Terhaar, and Rhonda Bailey. ii. Within 30 days, Defendants shall submit a detailed plan for approval by the Special Master for the reevaluations of the elderly, individuals with substantive physical or intellectual disabilities, and juvenile−only offenders. The plan must identify the individuals who will be reevaluated, the independent evaluators who will conduct the evaluations, and a detailed schedule for these reevaluations to be completed by a presumptive deadline of April 1, 2016, subject to modification by the Court based on the recommendations of the Special Master taking into account any submissions of the parties. iii. Within 60 days, Defendants shall submit a detailed plan for approval by the Special Master for the reevaluations of all remaining individuals at the MSOP. The presumptive completion deadline for these reevaluations is December 31, 2017, subject to modification by the Court based on the recommendations of the Special Master taking into account any submissions of the parties. b. If the independent risk assessment for any patient concludes that the patient should be fully discharged, transferred, or receive a reduction in custody, the MSOP must seek the release or reduction in custody of that patient to the appropriate placement by immediately filing a petition with the Special Review Board. See Minn. Stat. § 253D.27, subd. 2. Should Defendants wish to challenge the finding that a patient should be fully discharged, transferred, or receive a reduction in custody, the burden shall be on Defendants to prove that such individual's commitment and/or current level of custody is appropriate by clear and convincing evidence. See Minn. Stat. § 253D.28, subd. 2(d). Defendants must provide access to experienced independent counsel and professional experts to all petitioners. Defendants must ensure that the Special Review Board and Supreme Court Appeal Panel hearings following the independent risk assessments proceed in a timely manner and in no case conclude more than 120 days after the petition has been filed on behalf of a patient. c. Defendants must ensure that less restrictive alternatives are available to accommodate all individuals found eligible for a reduction in custody. For individuals found eligible for discharge, Defendants must provide transitional services and discharge planning needed to facilitate the individual's successful transition into the community. d. Following each treatment phase placement reevaluation identified in part a., above, Defendants shall immediately move any individual who is determined to be in an improper treatment phase into the proper treatment phase. If Defendants wish to object to the movement of any individual, the matter must be submitted to the Special Master for resolution. e. Defendants shall establish a plan to conduct annual,

independent risk assessments to determine whether each client still satisfies the civil commitment requirements and whether each client's treatment phase placement is proper. Parts b., c., and d. shall apply equally to the results of these subsequent annual assessments. f. Within 30 days, Defendants must submit a plan to the Special Master for approval by the Court providing for how they will complete the actions identified in parts b., c., and d., and e., above. Should Defendants seek an alternate deadline, they must prove to the Court why a later deadline is proper. 2. Special Master former Minnesota Supreme Court Chief Justice Eric J. Magnuson shall have authority to monitor compliance with the remedies identified above. The Special Master shall also have the authority to implement and enforce the injunctive relief imposed by the Court and to mediate any dispute between the parties with regard to the implementation of the remedies. Mediation of disputes by the Special Master shall be binding upon the parties. 3. This First Interim Relief Order contemplates that the Court will order further specific relief against Defendants. Subsequent orders by this Court may require Defendants to make improvements to the MSOP's treatment structure and discharge process, to conduct training for MSOP employees on the constitutional standards for commitment, to require periodic evaluation of the MSOP's treatment program by external experts, or to develop a statewide public education campaign to educate the public about Minnesota's sex offender civil commitment scheme, among other things. The Court may also revisit the relief ordered above in the event that Defendants fail to act on these requirements. 4. The Court shall retain jurisdiction over the Parties for 5 years from the date of final judgment, unless the Court orders otherwise. 5. If Defendants fail to fully comply with this Order, the Court reserves the right to issue an injunction enjoining the enforcement of the Act and precluding civil commitments under the Act and to issue an order to show cause why Defendants should not be held in contempt. (Written Opinion). Signed by Judge Donovan W. Frank on 10/28/2015. (BJS) Modified text on 10/29/2015 (JDF). (Entered: 10/29/2015)

10/29/2015

1036

NOTICE OF APPEAL TO 8TH CIRCUIT as to 1035 Order, 966 Order, by Jannine Hebert, Lucinda Jesson, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman. Filing fee $ 505, receipt number AMNDC−4627469. (Attachments: # 1 Form A). (Brennaman, Nathan) Modified text on 10/30/2015 (lmb). (Entered: 10/29/2015)

10/29/2015 1037 MOTION to Stay or Suspend Court's October 29, 2015 Order Pending Appeal by Jannine Hebert, Lucinda Jesson, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman. (Brennaman, Nathan) (Entered: 10/29/2015)

10/29/2015 1038 NOTICE OF HEARING ON MOTION 1037 MOTION to Stay or Suspend Court's October 29, 2015 Order Pending Appeal : at date and time to be determined. (Brennaman, Nathan) (Entered: 10/29/2015)

10/29/2015

1039

MEMORANDUM in Support re 1037 MOTION to Stay or Suspend Court's October 29, 2015 Order Pending Appeal filed by Jannine Hebert, Lucinda Jesson, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Brennaman, Nathan) (Entered: 10/29/2015)

10/29/2015 1040 MEET and CONFER STATEMENT re 1037 Motion to Stay filed by Jannine Hebert, Lucinda Jesson, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman. (Brennaman, Nathan) (Entered: 10/29/2015)

10/29/2015 1041 CERTIFICATE OF SERVICE ON PROPOSED ORDER by Jannine Hebert, Lucinda Jesson, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman re 1037 MOTION to Stay or Suspend Court's October 29, 2015 Order Pending Appeal (Brennaman, Nathan) (Entered: 10/29/2015)

10/30/2015 1042 TRANSMITTAL OF APPEAL LETTER TO U.S. COURT OF APPEALS, 8TH CIRCUIT, Re: Notice of Appeal to 8th Circuit 1036 . (lmb) (Entered: 10/30/2015)

11/02/2015 1043 Revised TRANSMITTAL OF APPEAL LETTER TO U.S. COURT OF APPEALS, 8TH CIRCUIT, Re: Notice of Appeal to 8th Circuit 1036 . (lmb) (Entered: 11/02/2015)

11/02/2015 1044 USCA Case Number 15−3485 for 1036 Notice of Appeal to 8th Circuit, filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Peter Puffer, Lucinda Jesson, Jannine

Hebert. (JAM) (Entered: 11/03/2015)

11/04/2015 1045 MEMORANDUM in Opposition re 1037 MOTION to Stay or Suspend Court's October 29, 2015 Order Pending Appeal filed by All Plaintiffs. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 11/04/2015)

11/09/2015 1046 TEXT ONLY NOTICE to Attorneys: The Court will consider and render a decision on Defendants' Motion to Stay or Suspend the Court's October 29, 2015 Order Pending Appeal (Doc. No. 1037 ) on the papers and without a hearing. Signed by Judge Donovan W. Frank on 11/09/2015. (BJS) (Entered: 11/09/2015)

11/12/2015 1047 LETTER TO DISTRICT JUDGE by Jannine Hebert, Lucinda Jesson, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman . (Attachments: # 1 Attachment to Letter)(Brennaman, Nathan) (Entered: 11/12/2015)

11/13/2015

1048

LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (Response to Doc No. 1047). (Gustafson, Daniel) (Entered: 11/13/2015)

11/13/2015 1049 TRANSCRIPT REQUEST by Jannine Hebert, Lucinda Jesson, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman for proceedings held on 7/24/2012 before Judge Donovan W. Frank. (Brennaman, Nathan) (Entered: 11/13/2015)

11/13/2015

1050

TEXT ONLY ORDER: The Court has received and considered the letter submissions of Defendants (Doc. No. 1047 ) and Plaintiffs (Doc. No. 1048 ). Defendants have requested the Court to clarify its imposition of a "temporary stay" while Defendants' Motion to Stay or Suspend the Court's October 29, 2015 Order Pending Appeal (Doc. No. 1037) is under advisement. (Doc. No. 1047.) Defendants have also requested that "if [the Court] ultimately denies their Motion, [it] grant an additional temporary stay during the Eighth Circuit's consideration of a stay." (Id.) The Court hereby orders that: 1. The "temporary stay" of the Court's First Interim Relief Order is effective as of October 29, 2015 until the Court issues its Order granting or denying Defendants' motion. 2. In the event that the Court denies Defendants' motion, Defendants' request for an additional temporary stay during the Eighth Circuit's consideration of a possible forthcoming stay motion is [DENIED]. Signed by Judge Donovan W. Frank on 11/13/15. (BJS) (Entered: 11/13/2015)

11/16/2015

1051

LETTER TO DISTRICT JUDGE by Jannine Hebert, Lucinda Jesson, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman (Placeholder for 11−12−15 correspondence to district judge filed under seal). (Attachments: # 1 Certificate of Service (for 11−12−15 correspondence filed under seal))(Brennaman, Nathan) SEALED DOCUMENT RECEIVED IN CLERK'S OFFICE on 11/17/2015 (LPH). (Entered: 11/16/2015)

11/16/2015

1052

LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (Placeholder for Plaintiffs' Response to Defendants' November 12, 2015 Correspondence (Doc. No. 1051)). (Attachments: # 1 Certificate of Service)(Gustafson, Daniel) Sealed document received on 11/17/2015 (SAE). (Entered: 11/16/2015)

11/20/2015 1053 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (JMA) (Entered: 11/20/2015)

11/20/2015

1054

TRANSCRIPT of Motions Hearing held on 07/24/2012 before Judge Donovan W. Frank. (38 pages). Court Reporter: Jeanne Anderson (E−mail: Jeanne_Anderson@mnd.uscourts.gov / Telephone: 651−848−1221). Redaction Request due 12/11/2015. Redacted Transcript Deadline set for 12/21/2015. Release of Transcript Restriction set for 2/18/2016. For information on redaction procedures, please review Local Rule 5.5. (JMA) (Entered: 11/20/2015)

11/23/2015

1055

ORDER. 1. Defendants' Motion to Stay or Suspend the Court's October 29, 2015 Order Pending Appeal (Doc. No. 1037 ) is DENIED. 2. All deadlines imposed in the Court's First Interim Relief Order, (Doc. No. 1035 at 39−42), are modified to be effective from the date of this Order. (Written Opinion) Signed by Judge Donovan W. Frank on 11/23/2015. (BJS) (Entered: 11/23/2015)

11/24/2015 1056 ORDER of USCA as to 1036 Notice of Appeal to 8th Circuit, filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Peter Puffer, Lucinda Jesson, Jannine Hebert (received electronically from COA) (kt) (Entered: 11/25/2015)

12/02/2015 1057 ORDER of USCA as to 1036 Notice of Appeal to 8th Circuit, filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Peter Puffer, Lucinda Jesson, Jannine Hebert (received electronically from COA) (kt) (Entered: 12/03/2015)

12/15/2015 1058 ORDER of USCA as to 1036 Notice of Appeal to 8th Circuit, filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Peter Puffer, Lucinda Jesson, Jannine Hebert (received electronically from COA) (kt) (Entered: 12/16/2015)

01/11/2016 1059 ORDER of USCA as to 1036 Notice of Appeal to 8th Circuit: Daniel E. Gustafson's motion to file a brief in excess of limits set forth in FRAP Rule 32(a)(A) and (B) is granted. Daniel E. Gustafson may file a brief not to exceed 20,000 words. (received electronically from COA) (AKL) (Entered: 01/12/2016)

01/22/2016

1060

NOTICE to USCA of subsequent filing in a civil case, Re: Transcript, 940 , Transcript, 952 , Transcript, 947 , Transcript, 956 , Transcript, 944 , Transcript, 938 , Transcript, 951 , Transcript, 943 , Transcript, 957 , Transcript, 942 , Transcript, 937 , Transcript, 946 , Transcript, 959 , Transcript, 954 , Transcript, 945 , Transcript, 941 , Transcript, 953 , Transcript, 950 , Transcript, 936 , Transcript, 948 , Transcript, 958 , Transcript, 960 , Transcript, 939 , Transcript, 949 , Transcript, 955 . 25 TRANSCRIPTS SENT UNDER SEPARATE COVER. (AKL) (Entered: 01/22/2016)

01/26/2016 1061 ORDER of USCA as to 1036 Notice of Appeal to 8th Circuit, filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Peter Puffer, Lucinda Jesson, Jannine Hebert (received electronically from COA) (kt) (Entered: 01/27/2016)

02/16/2016 1062 NOTICE of Withdrawal as Attorney (Lucia G. Massopust) (Gustafson, Daniel) (Entered: 02/16/2016)

03/23/2016

1063

TEXT ONLY ENTRY: CLERK'S NOTICE OF REASSIGNMENT. Due to the retirement of Magistrate Judge Keyes, this case is reassigned to Magistrate Judge Tony N. Leung. Magistrate Judge Jeffrey J. Keyes no longer assigned to the case.NOTE: the new case number is 11−cv−3659 DWF/TNL. Please use this case number for all subsequent pleadings. (kt) (Entered: 03/23/2016)

03/23/2016

NOTICE to USCA of subsequent filing in a civil case, Re: Notice to Attorney − JJK Case Reassigned, 1063 , Notice of Withdrawal as Attorney 1062 . (kt) (Entered: 03/23/2016)

04/14/2016 1064 ORDER LIFTING STAY. Signed by Chief Judge John R. Tunheim on 04/14/2016. (lmb) (Entered: 04/15/2016)

05/17/2016 1065 NOTICE of Withdrawal as Attorney (Brennaman, Nathan) (Entered: 05/17/2016)

11/16/2016 1066 LETTER from Judge Donovan W. Frank to Kevin Scott Karsjens regarding filing documents. (BJS) cc: Karsjens by Chambers. Modified text on 11/17/2016 (ACH). (Entered: 11/16/2016)

11/17/2016 1067 LETTER TO DISTRICT JUDGE by Jannine Hebert, Emily Johnson Piper, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman . (Ikeda, Scott) (Entered: 11/17/2016)

01/03/2017 1068 Opinion of USCA as to 1036 Notice of Appeal to 8th Circuit, filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Peter Puffer, Emily Johnson Piper, Jannine Hebert (kt) (Entered: 01/03/2017)

01/03/2017 1069 USCA JUDGMENT as to 1036 Notice of Appeal to 8th Circuit, filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Peter Puffer, Emily Johnson Piper, Jannine Hebert (received electronically from COA) (kt) (Entered: 01/03/2017)

01/06/2017 1070 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 1/6/2017. (Court Reporter Jeanne Anderson) (RLB) (Entered: 01/06/2017)

03/01/2017 1071 MANDATE of USCA as to 1036 Notice of Appeal to 8th Circuit, filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Peter Puffer, Emily Johnson Piper, Jannine Hebert (received electronically from COA) (kt) (Entered: 03/01/2017)

03/14/2017

1072

TEXT ONLY ORDER: The parties shall meet and confer to establish a briefing schedule on the following issues: (1) whether this case should remain stayed, in whole or in part, pending further appeal; (2) whether the other stayed cases in the District with substantially similar claims should remain stayed pending further appeal; (3) the next steps in this case on remaining Phase I claims if these claims are not stayed; and (4) the next steps in this case on Phase II claims if these claims are not stayed. The parties shall submit the proposed briefing schedule, including proposed brief length limits, to the Court no later than March 21, 2017. If the parties cannot agree on a schedule by this date, the Court will impose a schedule. The Court reserves the right to set oral argument on these issues. This case shall remain temporarily stayed pending the submission and resolution of the briefing identified above. Signed by Judge Donovan W. Frank on 3/14/2017. (BJS) (Entered: 03/14/2017)

03/15/2017 1073 Records Returned from USCA: Transcript: 25 Vols. (KNK) Document QC'd by JGK on 4/6/2017 (JGK). (Entered: 03/15/2017)

03/15/2017 1077 Appeal Record Returned: 25 vols. (kt) Document QC'd by JGK. Modified text on 4/12/2017 (JGK). (Entered: 04/11/2017)

03/31/2017

1074

BRIEF (Plaintiffs' Case Status Brief) filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer.(Gustafson, Daniel) (Entered: 03/31/2017)

03/31/2017 1075 BRIEF (Defendants' Case Status Brief) filed by Jannine Hebert, Emily Johnson Piper, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman.(Ikeda, Scott) (Entered: 03/31/2017)

03/31/2017 1076 AFFIDAVIT in Support re 1075 Brief (Defendants' Case Status Brief). (Attachments: # 1 Exhibit(s) 1−3)(Ikeda, Scott) (Entered: 03/31/2017)

04/14/2017

1078

PLAINTIFF'S RESPONSE TO DEFENDANTS' BRIEF PURSUANT TO THE COURT'S MARCH 14, 2017 ORDER filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer.(Gustafson, Daniel) Modified text on 4/17/2017 (ACH). (Entered: 04/14/2017)

04/14/2017 1079 DEFENDANTS' RESPONSE BRIEF PURSUANT TO THE COURT'S MARCH 14, 2017 ORDER by Jannine Hebert, Emily Johnson Piper, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman. (Ikeda, Scott) Modified text on 4/17/2017 (ACH). (Entered: 04/14/2017)

05/03/2017 1080 ORDER. 1. This matter is STAYED in its entirety. 2. The parties shall meet and confer to discuss the status of the case and contact the Court to arrange a telephone status conference within ninety days of this order. (Written Opinion). Signed by Judge Donovan W. Frank on 5/3/2017. (BJS) (Entered: 05/03/2017)

05/25/2017 1081 NOTICE OF FILING PETITION FOR CERTIORARI. The petition for a writ of certiorari in the above entitled case was filed on May 19, 2017 and placed on the docket May 23, 2017 as No. 16−1394. (JDF) (Entered: 05/30/2017)

06/01/2017 1082 ORDER. Former Chief Justice Eric J. Magnuson is hereby discharged from his duties as Special Master in this matter. Signed by Judge Donovan W. Frank on 6/1/2017. (BJS) (Entered: 06/01/2017)

06/30/2017 1083 FOURTH AMENDED ORDER: 1. Stay of Cases Pending Resolution of Civil No. 11−3659 (DWF/TNL): All current and future civil rights cases brought by an

individual or group of individuals who has or have been civilly committed to the Minnesota Sex Offender Program that are sufficiently related to Karsjens, et al. v. Piper, et al., Civil No. 11−3659 (DWF/TNL), as determined by the Court, are hereby STAYED in all respects, pending the litigation in Karsjens, or until further order of the Court stating otherwise. 2. Service: The Clerk of the United States District Court for the District of Minnesota is respectfully directed to file this Order in each stayed case and provide a copy of this Order, via United States mail, to every Plaintiff in all of the cases that are stayed. Signed by Chief Judge John R. Tunheim on 6/30/2017. (lmb) (Entered: 06/30/2017)

08/10/2017 1084 LETTER TO DISTRICT JUDGE by Jannine Hebert, Emily Johnson Piper, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman . (Ikeda, Scott) (Entered: 08/10/2017)

08/16/2017 1085 Minute Entry for proceedings held before Judge Donovan W. Frank: Telephone Conference held on 8/16/2017. (Court Reporter Lori Simpson) (BJS) (Entered: 08/16/2017)

08/16/2017

1086

ORDER. 1. This matter is STAYED in its entirety. 2. The parties shall meet and confer to discuss the status of the case and contact the Court to arrange a telephone status conference within sixty days of this order. If either or both parties wish to contact the Court at an earlier time to update the Court on the status of the case, they may do so. Signed by Judge Donovan W. Frank on 8/16/2017. (BJS) (Entered: 08/16/2017)

08/23/2017

1087

ORDER. 1. The Clerk shall forthwith refund the balance of the funds deposited by the Department of Human Services and remaining in this litigation's Registry account in the amount of $1,066,671.08, plus any accrued interest. 2. The Clerk shall contact the Chambers of Judge Donovan W. Frank for the details regarding the proper means of directing payment of these funds. Signed by Judge Donovan W. Frank on 8/23/2017. (BJS) (Entered: 08/23/2017)

09/18/2017 1088 SEALED Withdrawal Payee Information Form re 1087 Order, by Emily Johnson Piper, Kevin Moser, Peter Puffer, Nancy Johnston, Jannine Hebert, Ann Zimmerman. (Ikeda, Scott) (Entered: 09/18/2017)

10/03/2017 1089 SEALED Amended Withdrawal Payee Information Form re 1087 Order, by Defs Piper, Moser, Puffer, Johnston, Hebert, Zimmerman. (Ikeda, Scott) (Entered: 10/03/2017)

10/03/2017 1090 NOTICE OF FILING PETITION FOR CERTIORARI. (MMP) (Entered: 10/03/2017)

10/23/2017

1091

LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer . (Gustafson, Daniel) (Entered: 10/23/2017)

10/23/2017 1092 LETTER TO DISTRICT JUDGE by Jannine Hebert, Emily Johnson Piper, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman (dated October 23, 2017). (Ikeda, Scott) (Entered: 10/23/2017)

10/25/2017 1093 Minute Entry for proceedings held before Judge Donovan W. Frank: Status Conference held on 10/25/2017. (Court Reporter Carla Bebault) (RLB) (Entered: 10/25/2017)

10/27/2017

1094

TEXT ONLY ORDER: The Court approves the parties' agreed−upon briefing schedule communicated to the Court via e−mail. Consistent with this agreement, Defendants' brief is due December 8, 2017. Plaintiffs' opposition brief is due January 12, 2018. Defendants' reply brief is due January 26, 2018. Signed by Judge Donovan W. Frank on 10/27/2017. (RLB) (Entered: 10/27/2017)

12/08/2017 1095 MOTION for Summary Judgment (Defs Summary judgment as to Counts VIII, IX, and X of Plaintiffs Third Amended Complaint and Rule 706 Experts costs) filed by Jannine Hebert, Emily Johnson Piper, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman. (Ikeda, Scott) (Entered: 12/08/2017)

12/08/2017 1096 NOTICE OF HEARING ON MOTION 1095 MOTION for Summary Judgment (Defs Summary judgment as to Counts VIII, IX, and X of Plaintiffs Third Amended Complaint and Rule 706 Experts costs) : at date and time to be determined. (Ikeda, Scott) (Entered: 12/08/2017)

12/08/2017

1097

MEMORANDUM in Support re 1095 MOTION for Summary Judgment (Defs Summary judgment as to Counts VIII, IX, and X of Plaintiffs Third Amended Complaint and Rule 706 Experts costs) filed by Jannine Hebert, Emily Johnson Piper, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Ikeda, Scott) (Entered: 12/08/2017)

12/08/2017

1098

PROPOSED ORDER TO JUDGE re 1095 MOTION for Summary Judgment (Defs Summary judgment as to Counts VIII, IX, and X of Plaintiffs Third Amended Complaint and Rule 706 Experts costs) filed by Jannine Hebert, Emily Johnson Piper, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman.(Ikeda, Scott) (Entered: 12/08/2017)

12/20/2017

1099

AMENDED NOTICE of Hearing on Motion: 1095 MOTION for Summary Judgment (Defs Summary judgment as to Counts VIII, IX, and X of Plaintiffs Third Amended Complaint and Rule 706 Experts costs) : Motion Hearing set for 2/2/2018 11:00 AM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Winter, Aaron) (Entered: 12/20/2017)

01/12/2018

1100

MEMORANDUM in Opposition re 1095 MOTION for Summary Judgment (Defs Summary judgment as to Counts VIII, IX, and X of Plaintiffs Third Amended Complaint and Rule 706 Experts costs) filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 01/12/2018)

01/16/2018

1101

AMENDED NOTICE of Hearing on Motion: 1095 MOTION for Summary Judgment (Defs Summary judgment as to Counts VIII, IX, and X of Plaintiffs Third Amended Complaint and Rule 706 Experts costs) : Motion Hearing set for 2/5/2018 01:00 PM in Courtroom 7C (STP) before Judge Donovan W. Frank. (Ikeda, Scott) (Entered: 01/16/2018)

01/26/2018

1102

Reply to Response to Motion re 1095 MOTION for Summary Judgment (Defs Summary judgment as to Counts VIII, IX, and X of Plaintiffs Third Amended Complaint and Rule 706 Experts costs) filed by Jannine Hebert, Emily Johnson Piper, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Ikeda, Scott) (Entered: 01/26/2018)

02/05/2018

1103

Minute Entry for proceedings held before Judge Donovan W. Frank: Motion Hearing held on 2/5/2018 re 1095 MOTION for Summary Judgment (Defs Summary judgment as to Counts VIII, IX, and X of Plaintiffs Third Amended Complaint and Rule 706 Experts costs) filed by Ann Zimmerman, Nancy Johnston, Kevin Moser, Peter Puffer, Emily Johnson Piper, Jannine Hebert. Court to issue an order concerning supplemental briefing. Motions taken under advisement. Written order forthcoming. (Court Reporter Lynne Krenz) (las) (Entered: 02/05/2018)

02/05/2018

1104

TEXT ONLY ORDER: As discussed at the February 5, 2018 hearing, Defendants may submit a supplemental letter brief to respond to the issues raised by Plaintiffs regarding class decertification and dismissal of Plaintiffs' Phase Two claims. Defendants may file a letter brief of no more than five pages by Friday, February 23, 2018. Plaintiffs may respond by filing a letter brief of no more than five pages within two weeks of Defendants' submission signed by Judge Donovan W. Frank on 2/5/2018. (las) (Entered: 02/05/2018)

02/23/2018 1105 LETTER TO DISTRICT JUDGE by Jannine Hebert, Emily Johnson Piper, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman (Pursuant to the Court's order at Doc. 1104). (Ikeda, Scott) (Entered: 02/23/2018)

03/07/2018

1106

LETTER TO DISTRICT JUDGE by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer (Response to Doc. No. 1105). (Gustafson, Daniel) (Entered: 03/07/2018)

08/23/2018 1107 ORDER − Based upon the status of this case, and for clarity on the Court's docket, IT IS HEREBY ORDERED that the stay in this matter is LIFTED, and the pending motion is ripe for the Court's review. Signed by Judge Donovan W. Frank on 8/23/2018. (las) (Entered: 08/23/2018)

08/23/2018

1108

MEMORANDUM OPINION AND ORDER: Plaintiffs' remaining Phase One claims (Counts III, V, VI and VII) are DISMISSED WITH PREJUDICE. Defendants' Motion for Summary Judgment on Phase Two (Counts VIII, IX, and X) (Doc. No. 1095 ) is GRANTED and these counts are DISMISSED WITH PREJUDICE. Defendants' Motion for Final Apportionment of Rule 706 Expert Costs (Doc. No. 1095 ) is DENIED WITHOUT PREJUDICE to renewal in connection with a Motion for Costs pursuant to Federal Rule of Civil Procedure 54. (Written Opinion) Signed by Judge Donovan W. Frank on 8/23/2018. (las) (Entered: 08/23/2018)

08/25/2018 1109 JUDGMENT (Attachments: # 1 Civil Notice − appeal)(MMG) (Entered: 08/25/2018)

09/24/2018

1110

MOTION for Extension of Time to File Notice of Appeal filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 09/24/2018)

09/24/2018

1111

MEMORANDUM in Support re 1110 MOTION for Extension of Time to File Notice of Appeal filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 09/24/2018)

09/24/2018

1112

MEET and CONFER STATEMENT re 1110 Motion for Extension of Time (General), filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer.(Gustafson, Daniel) (Entered: 09/24/2018)

09/24/2018

1113

PROPOSED ORDER TO JUDGE re 1110 MOTION for Extension of Time to File Notice of Appeal filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer.(Gustafson, Daniel) (Entered: 09/24/2018)

09/24/2018 1114 BILL OF COSTS by Jannine Hebert, Emily Johnson Piper, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman. (Attachments: # 1 Spreadsheet of Costs, # 2 Exhibit(s) A−C)(Ikeda, Scott) (Entered: 09/24/2018)

09/24/2018

1115

ORDER − Plaintiffs' Motion for Extension of Time to File Notice of Appeal (Doc. No. 1110 ) is GRANTED. Plaintiffs shall have an additional thirty (30) days to file their Notice of Appeal. However, the Court reserves the right to reevaluate this issue in the event defense counsel wishes to submit a response to the Plaintiffs' motion and the Court's Order. In the event the Court receives a response from defense counsel, it reserves the right to require a response from Plaintiffs' counsel before modifying the Order granting the 30−day extension. Signed by Judge Donovan W. Frank on 9/24/2018. (las) (Entered: 09/24/2018)

10/04/2018 1116 OBJECTION to Bill of Costs re 1114 Bill of Costs by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens,

Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Attachments: # 1 Exhibit(s) A)(Gustafson, Daniel) (Entered: 10/04/2018)

10/11/2018 1117 Response to Objection to Bill of Costss re 1114 Bill of Costs, 1116 Objection to Bill of Costs, (Defs' Response to Pls' Objections to Bill of Costs) by Jannine Hebert, Emily Johnson Piper, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman. (Ikeda, Scott) (Entered: 10/11/2018)

10/24/2018

1118

NOTICE OF APPEAL TO 8TH CIRCUIT as to 1108 Order on Motion for Summary Judgment,, by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. Filing fee $ 505, receipt number AMNDC−6455058. (Gustafson, Daniel) (Entered: 10/24/2018)

10/30/2018 1119 TRANSMITTAL OF APPEAL LETTER TO U. S. COURT OF APPEALS, 8TH CIRCUIT, Re: Notice of Appeal to 8th Circuit, 1118 . (MMG) (Entered: 10/30/2018)

11/01/2018

1120

TRANSCRIPT REQUEST by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer for a 30−Day Transcript of 1103 Motion Hearing,, to Court Reporter Lynne Krenz. (Gustafson, Daniel) (Entered: 11/01/2018)

11/01/2018

1121

USCA Case Number 18−3343 for 1118 Notice of Appeal to 8th Circuit, filed by Bradley Wayne Foster, David Leroy Gamble, Jr., Craig Allen Bolte, Brian K. Hausfeld, Kaine Joseph Braun, Dennis Richard Steiner, James John Rud, Kenny S. Daywitt, Kevin John DeVillion, James Allen Barber, James Matthew Noyer, Sr., Christopher John Thuringer, Peter Gerard Lonergan, Kevin Scott Karsjens. (kt) (Entered: 11/02/2018)

11/19/2018 1122 NOTICE of Filing of Official Transcript. This filing has 1 transcript(s) associated with it. (LMK) (Entered: 11/19/2018)

11/19/2018 1123 TRANSCRIPT of Motions Hearing held on 2/5/18 before Judge Donovan W. Frank. (95 pages). Court Reporter: Lynne Krenz. For a copy of the transcript, please file a Transcript Request under Other Filings/Other Documents.

For information on redaction procedures, please review Local Rule 5.5. Redaction Request due 12/10/2018. Redacted Transcript Deadline set for 12/20/2018. Release of Transcript Restriction set for 2/19/2019. (LMK) (Entered: 11/19/2018)

11/20/2018 1124 TRANSMITTAL OF RECORDS re: Transcripts 1123 sent to the USCA. (MMG) (Entered: 11/20/2018)

12/17/2018

1125

COST JUDGMENT in favor of Ann Zimmerman, Emily Johnson Piper, Jannine Hebert, Kevin Moser, Nancy Johnston, Peter Puffer against Bradley Wayne Foster, Brian K. Hausfeld, Christopher John Thuringer, Craig Allen Bolte, David Leroy Gamble, Jr, Dennis Richard Steiner, James John Rud, James Matthew Noyer, Sr, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Kevin Scott Karsjens, Peter Gerard Lonergan (Attachments: # 1 Taxation of Costs Summary)(TP) (Entered: 12/17/2018)

12/19/2018

1126

MOTION for Review of Taxation of Costs filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer. (Gustafson, Daniel) (Entered: 12/19/2018)

12/19/2018

1127

MEMORANDUM in Support re 1126 MOTION for Review of Taxation of Costs filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer.

(Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Gustafson, Daniel) (Entered: 12/19/2018)

12/19/2018

1128

MEET and CONFER STATEMENT re 1126 Motion for Review of Taxation of Costs, filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer.(Gustafson, Daniel) (Entered: 12/19/2018)

12/19/2018

1129

PROPOSED ORDER TO JUDGE re 1126 MOTION for Review of Taxation of Costs filed by James Allen Barber, Craig Allen Bolte, Kaine Joseph Braun, Kenny S. Daywitt, Kevin John DeVillion, Bradley Wayne Foster, David Leroy Gamble, Jr, Brian K. Hausfeld, Kevin Scott Karsjens, Peter Gerard Lonergan, James Matthew Noyer, Sr, James John Rud, Dennis Richard Steiner, Christopher John Thuringer.(Gustafson, Daniel) (Entered: 12/19/2018)

12/20/2018

1130

FIFTH AMENDED ORDER: 1. Stay of Cases Pending Resolution of Civil No. 11−3659 (DWF/TNL): All current and future civil rights and/or habeas cases brought by an individual or group of individuals who has or have been civilly committed to the Minnesota Sex Offender Program that are sufficiently related to Karsjens et al. v. Piper, et al., Civil No. 11−3659 (DWF/TNL) and plaintiffs appeal to the Eighth Circuit, as determined by the Court, are hereby STAYED in all respects, pending the litigation in Karsjens, or until further order of the Court stating otherwise. 2. Service: The Clerk of the United States District Court for the District of Minnesota is respectfully directed to file this Order in each stayed case and provide a copy of this Order, via United States mail, to every Plaintiff in all of the cases that are stayed. Signed by Chief Judge John R. Tunheim on 12/20/2018. (HAZ) (Entered: 12/20/2018)

01/02/2019 1131 MEMORANDUM in Opposition re 1126 MOTION for Review of Taxation of Costs filed by Jannine Hebert, Emily Johnson Piper, Nancy Johnston, Kevin Moser, Peter Puffer, Ann Zimmerman. (Attachments: # 1 LR7.1/LR72.2 Word Count Compliance Certificate)(Ikeda, Scott) (Entered: 01/02/2019)