United States Court of Appeals

For the Eighth Circuit

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No. 17-3093

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John R. Van Orden; Michael D. McCord; Joseph Miller; Macon Baker; Chance W.

Tyree; Walter W. Ritchey; David Brown; Anthony Amonette; Richard Tyson;

Wade A. Turpin; Matthew King; Andre Cokes; Joseph Bowen, Class

Representative; William Murphy, Class Representative,

lllllllllllllllllllllPlaintiffs - Appellants,

v.

Mark Stringer; Harold Myers, Reimbursement Officer, HealthLink, Individually

and Officially; Alan Blake, Chief Operating Officer, MSOTC, Individually and

Officially; Julie Inman; Jay Englehardt; Justin Arnett; Rick Gowdy, in his official

capacity as Director of the Missouri Department of Mental Healths Division of

Behavioral Health; Robert Reitz; Linda Moll; Daman Longworth; Donna

Augustine; Dave Schmitt; Ericka L. Kempker; Kristina Bender-Crice; Angeline

Stanislaus, in her official capacity as Chief Clinical Officer of the Missouri

Department of Mental Health; Anne Precythe, in her official capacity as Director

of the Missouri Department of Corrections; Rikki Wright, in his official capacity

as Deputy Director of the Missouri Department of Mental Health for the Division

of Behavioral Health; David Schmitt, in his official capacity as Chief Operating

Officer of Southeast Missouri Mental Health Centers Adult Psychiatric Services;

Andy Atkinson, in his official capacity as Chief Operating Officer of Fulton State

Hospital; Lee Ann McVay, in her official capacity as Program Coordinator at

SORTS-Fulton State Hospital; Susan Knopflein, in her official capacity as Chief

Nurse Executive at Fulton State Hospital,

lllllllllllllllllllllDefendants - Appellees.

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Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

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Submitted: September 26, 2018

Filed: September 11, 2019

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Before COLLOTON, BEAM, and GRASZ, Circuit Judges.

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COLLOTON, Circuit Judge.

A class of civilly-committed residents ofMissouri’s civil commitment program

for certain sex offenders appeal the dismissal of their claims against state officials. 

The residents allege that the state officials deprived them of constitutional rights

under the rubric of substantive due process. The district court1initially found the

defendants liable for constitutional violations, but reconsidered in light of Karsjens

v. Piper, 845 F.3d 394 (8th Cir. 2017), and entered judgment on behalf of the state

officials. The residents appeal, and we affirm.

I.

In 1998, the Missouri legislature enacted the Missouri Sexually Violent

Predator Act to govern the civil commitment of persons adjudicated to be sexually

violent predators. See 1998 Mo. Legis. Serv. 106 (West); Mo. Rev. Stat. §§ 632.480-

632.525. A person may be committed in the program only if a judge or jury

determines by clear and convincing evidence that he is a sexually violent predator. 

Mo. Rev. Stat. § 632.495.1. A “[s]exually violent predator” is a person who, among

other things, has a “mental abnormality which makes the person more likely than not

to engage in predatory acts of sexual violence if not confined in a secure facility.” 

Id. § 632.480(5).

1The Honorable Audrey G. Fleissig, United States District Judge for the

Eastern District of Missouri.

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After commitment, Missouri law provides avenues to secure conditional

release. The director of the department of mental health (or his designee) is required

to prepare an annual report on each resident’s mental condition and provide it to the

state court that committed the person. Id. § 632.498.1. If the director determinesthat

a resident is no longer likely to commit acts of sexual violence, then he “shall

authorize the person to petition the court for release.” Id. § 632.501. Alternatively,

a resident may file his own petition for release without director approval. See id.

§§ 632.498.2, .504. If the court at a hearing determines by a preponderance of the

evidence that the committed person is no longer likely to engage in acts of sexual

violence if released, then the person is entitled to a trial on the issue. See id.

§ 632.498.4; In re Coffman, 225 S.W.3d 439, 442-44 (Mo. 2007). To justify

continued commitment, the State must prove by clear and convincing evidence that

the person is still likely to engage in acts of sexual violence if released. Mo. Rev.

Stat. § 632.498.5(3). Otherwise, the person is entitled to conditional release. See id.

§§ 632.498.5(4), .505.1.

In 2009, a group of civilly-committed persons brought suit on behalf of

themselves and those similarly situated against state officials responsible for

operating the program. The fifth amended complaint alleged, inter alia, that the

State’s commitment provisions are facially unconstitutional, and that the treatment

program as applied to the residents violates their substantive due process rights. The

treatment program, the complaint alleged, is a “sham” that does not provide a

“realistic opportunity for release.” For purposes of the treatment claims, the district

court certified a class under Federal Rule of Civil Procedure 23(a) and (b)(2) made

up of “persons who are, or will be, during the pendency of this action,” residents of

Missouri’s commitment program for sexually violent predators.

The district court held a bench trial in April 2015 and entered an order on the

question of liability. The court ruled that the Act is not unconstitutional on its face,

and dismissed the state-law claims with prejudice, but granted a declaration that the

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Act is unconstitutional as applied to the class. The court concluded the treatment

program suffered from three “constitutional deficienc[ies].”

First, the courtfound that “annual reviewers have not been applying the correct

legal standard when evaluating whether a resident meets the criteria for conditional

release.” The result, the court believed, was that residents remained confined

“beyond the time constitutionally justified.” Second, the court found that state

officials were not releasing low-risk residents into less restrictive housing, and had

“not even designed procedures to do so,” but were instead imposing an indefinite

“release without discharge” condition on those residents. Third, the court found that

the director of the department of mental health had “abdicated his duty” to authorize

petitionsfor release of low-risk residents, resulting in “the continued confinement of

persons who no longer meet the criteria for commitment.”

Before reaching the remedies phase, the district court sua sponte requested

briefing on whether it should reconsider its liability order in light of our intervening

decision in Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017). In Karsjens, this court

rejected an as-applied substantive due process challenge to Minnesota’s civil

commitment program for sexually dangerous persons. See id. at 410-11. The district

court concluded that the underlying findings in Karsjens were materially

indistinguishable from those in its own liability order, so it reconsidered that order

and rejected the residents’ as-applied constitutional claims. The district court later

denied the residents’ motion to alter or amend the judgment on their state-law claims

to a dismissal without prejudice.

We review the district court’s findings of fact for clear error and its legal

conclusions de novo. Lisdahl v. Mayo Found., 633 F.3d 712, 717 (8th Cir. 2011). 

The denial of the motion to alter or amend the judgment is reviewed for abuse of

discretion. Sipp v. Astrue, 641 F.3d 975, 980-81 (8th Cir. 2011).

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II.

A.

To prevail on an as-applied substantive due process claim, the residents must

show both that the state officials’ conduct is conscience-shocking and that it violated

a fundamental right of the residents. See Terrell v. Larson, 396 F.3d 975, 978 n.1

(8th Cir. 2005) (en banc); Moran v. Clarke, 296 F.3d 638, 651 (8th Cir. 2002) (en

banc) (Bye, J., concurring and writing for a majority on this issue). One question in

a substantive due process challenge to executive action is “whether the behavior of

the governmental officer is so egregious, so outrageous, that it may fairly be said to

shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833,

848 n.8 (1998). Another prerequisite for such a claim is that the officials’ conduct

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.” Moran, 296 F.3d

at 651 (Bye, J., concurring and writing for a majority) (internal quotation marks

omitted). The claims here founder on both elements.

The residents, of course, have a liberty interest in freedom from state custody,

but in this case, their liberty was constrained in accordance with due process of law. 

All were adjudicated as sexually violent predators in the Missouri courts, and there

is no dispute that they were constitutionally deprived of liberty on that basis. See

Kansas v. Hendricks, 521 U.S. 346, 356-60 (1997). A civilly-committed person also

has a liberty interest in gaining release from detention if the reasons that justified the

commitment no longer exist. O’Connor v. Donaldson, 422 U.S. 563, 575 (1975). 

But Missouri law provides a procedure under which a committed person can petition

for release, and a state court must determine whether the person still suffers from a

mental abnormality that makes him likely to engage in acts of sexual violence if

released. Mo. Rev. Stat. §§ 632.498.2-.5, .504. If a person invokesthose procedures,

and a court properly determinesthat he remains a sexually violent predator, then there

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is continued deprivation of liberty, but that deprivation occurs with due process of

law.

In this litigation, the residents have proceeded as a class, seeking the same

relief as to every class member. See Fed. R. Civ. P. 23(b)(2). They do not claim that

the class members as a group are entitled to release. They urge instead that the

defendant officials have failed to implement certain statutory requirements in a way

that will release residents from detention when appropriate, and they seek injunctive

relief that directs the officials to operate differently. Whatever the merits of the

claims that Missouri officials are not properly implementing the Act, we conclude

that the concept of substantive due process does not encompass a fundamental right

in having the state officials perform as requested.

For purposes of substantive due process, a fundamental right or liberty is one

that is “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, 721 (1997) (internal

quotations omitted). The residentssuggest that they are pursuing a fundamental right

of freedom from bodily restraint that meets the foregoing criteria. See Zadvydas v.

Davis, 533 U.S. 678, 690-95 (2001). But their claim in this litigation is different. 

They do not assert a typical substantive due process claim against “certain

government actions regardless of the fairness of the procedures used to implement

them.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (internal

quotation omitted). Rather, they contend that the defendant officials must change the

way that they conduct annual reviews of civilly-committed persons, design

proceduresfor releasing low-risk residentsinto lessrestrictive housing, and carry out

a statutory duty to authorize petitions for release of low-risk residents.

An entitlement to these actions is not deeply rooted in the Nation’s history and

tradition or implicit in the concept of ordered liberty. Regardless of how the

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defendant officials carry out their functions under state law, the Act provides that a

civilly-committed person may petition a state court for release on the ground that the

person no longer suffers from a mental abnormality that makes him likely to engage

in acts of sexual violence if released. See Mo. Rev. Stat. § 632.498.2-.4. Whether or

not the department of mental health applies the correct legal standard in conducting

its annual review of the committed person, or authorizes a petition for release in the

name of the director, the committed person is entitled to review of his continued

detention by an independent judicial officer. The state court is duty-bound to apply

the correct legal standards regardless of the director’s potential shortcomings in

carrying out his functions under state law. See id. § 632.498.4. If the state court (or

a jury) determines based on the evidence that the person is no longer likely to engage

in acts of sexual violence, then the court must order him conditionally released. Id.

§ 632.498.5(4). And despite the asserted flaws in the department’s program for

releasing low-risk residents into less restrictive housing, the state court has final

authority to determine what conditions should apply, including whether a resident

should be released without discharge or into the community. See id. § 632.505.3.

The availability ofthese procedures issufficient to vindicate a resident’sliberty

interest in gaining release from detention once the reasons that justified the

commitment dissipate. That the Act provides additional opportunities to facilitate

release, and thatstate officials allegedly have failed to implement themproperly, does

not run afoul of substantive due process.

The residents insist that once the State adopted the Act, they enjoyed “statecreated liberty interests” that could not be infringed. This argument confuses

procedural due process and the concept of substantive due process. “[S]tate statutes

may create liberty interests that are entitled to the procedural protections of the Due

Process Clause of the Fourteenth Amendment.” Vitek v. Jones, 445 U.S. 480, 488

(1980) (emphasis added). The residents, however, claim a substantive due process

right to certain actions by state officials. Fundamental rights or liberties that are

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protected by substantive due process are those implicit in the concept of ordered

liberty or derived from our Nation’s history and tradition; they are not created by

States. Steele v. Cicchi, 855 F.3d 494, 501 (3d Cir. 2017). The residents also contend

that a periodic review requirement under state law was a “key reason” why the

Supreme Court upheld a civil commitment scheme for sexually violent predators in

Hendricks, so periodic review of the sort they demand must be required by

substantive due process. The Court in Hendricks, however, cited periodic review as

evidence that the Kansas statute was not “punitive” for purposes of a different claim

under the Double Jeopardy Clause. 521 U.S. at 364. The residents here invoke only

substantive due process in their appeal, and they have not demonstrated the violation

of a fundamental right under that rubric.

Alternatively, we agree with the district court that the rationale of our decision

in Karsjens that Minnesota’s commitment scheme did not shock the conscience

dictates the same outcome here. In Karsjens, the district court had determined the

Minnesota program 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 [in the program] even though they have completed

treatment or sufficiently reduced their risk; (4) discharge procedures are

not working properly [in the program]; (5) although section 253D

expressly allowsthe referral of committed individuals to less restrictive

alternatives, this is not occurring in practice because there are

insufficient lessrestrictive alternatives available for transfer and no less

restrictive alternatives available forinitial commitment; and (6) although

treatment has been made available, the treatment program’sstructure 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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Karsjens, 845 F.3d at 402-03. This court concluded 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.

The deficiencies the district court found in the Missouri program are no more

egregious or outrageous than those at issue in Karsjens. The district court found that

Missouri’s annual reviewers have not been applying the correct legal standard for

assessing eligibility for conditional release, resulting in prolonged confinement of

low-risk residents. But Minnesota had no periodic risk assessments whatsoever. The

district court here found that Missouri officials have not released low-risk residents

into less restrictive facilities or created procedures to that end. “[I]n practice,”

however, Minnesota did not release low-risk residents into less restrictive facilities

either. Id. at 402. The district court here found that the director of the Missouri

department of mental health had not authorized even one resident to petition for

conditional release, and thatstate officials were “stalling or blocking” authorizations

for qualified residents. Yet Minnesota had no requirement that officials take any

“affirmative action” at all, “such as petition for a reduction in custody, on behalf of

individuals who no longer satisfy the criteria for continued commitment.” Id.

Because the shortcomings cited by the district court in Missouri mirror those that

Karsjens held were not conscience-shocking in Minnesota, the district court correctly

reasoned that the as-applied substantive due process claims should be dismissed.

To avoid this conclusion, the residents argue that the court in Karsjens

incorrectly applied an intent-to-harm standard for conscience-shocking conduct, and

that “deliberate indifference” to liberty is the proper standard. Karsjensis not entirely

clear on this point. The issue was not raised in briefs before the Karsjens panel

because the plaintiffs disputed that the conscience-shocking standard applied at all. 

The Karsjens opinion, id. at 408, did refer to conduct inspired by “malice or sadism”

(language associated with intent to harm), but it also framed the issue as whether the

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defendants’ actions were “egregious or outrageous,” a phrase that aligns with the

understanding that deliberate indifference involves “patently egregious” conduct. See

Lewis, 523 U.S. at 850-51. 

The residents submit that a deliberate indifference standard must apply here,

because the defendant officials had sufficient time to reflect and deliberate about their

actions. They point to the statement in Lewisthat the deliberate indifference standard

“is sensibly employed only when actual deliberation is practical.” Id. at 851. The

State respondsthat decisionsfrom other circuits have suggested thatsomething more

akin to an intent-to-harm standard may apply when officials, after deliberating, are

forced to choose among competing, legitimate interests. See Hunt v. Sycamore Cmty.

Sch. Dist. Bd. of Educ., 542 F.3d 529, 541-42 (6th Cir. 2008); Matican v. City of New

York, 524 F.3d 151, 158-59 (2d Cir. 2008); Schieber v. City of Philadelphia, 320 F.3d

409, 419-20 (3d Cir. 2003). The State suggests that the need for officials to balance

the competing obligations of community safety and proper treatment makes the

intent-to-harm standard appropriate here. We need not resolve the dispute over the

applicable standard.

We reject the residents’ argument because the alleged actions of the defendant

officials do not shock the conscience under either standard. There is no showing of

malicious or sadistic intent to harm, and what was not “egregious” conduct in

Karsjens, 845 F.3d at 411, is not “patently egregious” deliberate indifference here. 

The director’s alleged failure to authorize petitions for release does not amount to

conscience-shocking deliberate indifference to liberty when a resident may petition

a court directly for release and trigger the same type of proceeding on whether

commitment is still justified. See Mo. Rev. Stat. §§ 632.498.2-.5, .501. The

nonexistence of less restrictive housing options, the district court explained, stems

largely from inadequate funding. Since at least 2010, state officials have “requested

money to be placed in the state’s budget for establishing cottages in the community,

in order to implement the community reintegration phase,” but the governor has not

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proposed that funding to the state legislature. Those efforts by state officials to

secure funding run counter to a conclusion of deliberate indifference by the

defendants. See Cullor v. Baldwin, 830 F.3d 830, 838-39 (8th Cir. 2016). The

district court traced the problem of annual reviewers applying incorrect standards to

a lack of legal training. This fault is hardly commendable, but it is insufficient to

prove conscience-shocking deliberate indifference to a resident’s liberty when the

annual review is presented to a state court that is charged with reviewing the matter

independently under correct legal standards. As in Karsjens, we conclude that the

alleged shortcomings in the State’s sexually violent offender program do not shock

the conscience.

None of this means, of course, that individual residents are precluded from

petitioning for release on their own, outside the framework of this class action

litigation. The district court, for example, was particularly concerned that aged and

infirm residents may no longer pose a risk of committing predatory acts of sexual

violence if released. We hold only that the concept of substantive due process does

not justify a finding of class-wide liability based on the alleged deficiencies of state

officials that were advanced in this action.

B.

The residents also appeal the district court’s dismissal of their state-law claims

with prejudice. The court concluded that the residents had abandoned these claims,

and we conclude that there is no reversible error.

The residents pleaded claims under the Missouri Constitution, but never

developed them. The residents last mentioned the state constitution in their

memorandum in opposition to the state officials’ motion to dismiss, and even there,

the references came under headings of “Fourteenth Amendment Substantive Due

Process.” After the district court issued its initial liability order, the residents moved

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for clarification, but never raised the state-law claims. The amended liability order

denied all prayers for relief except for the claim that the treatment program was

“unconstitutional as applied and deprive[d] Plaintiffs and the TreatmentClass of their

constitutional rights.” The residents had another chance to resurrect the state-law

claims when the district court requested supplemental briefing in light of Karsjens,

but they bypassed that opportunity as well. On this record, it was not error for the

district court to infer the residents had abandoned their state-law claims. The district

court did not abuse its discretion in denying the motion to alter or amend the

judgment.

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The judgment of the district court is affirmed.

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