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Case Name Van Orden v. Schafer CJ-MO-0009
Docket / Court 4:09-cv-00971 ( E.D. Mo. )
State/Territory Missouri
Case Type(s) Criminal Justice (Other)
Attorney Organization ACLU Chapters (any)
Case Summary
On June 22, 2009, a group of civilly committed residents of the Missouri Department of Mental Health's ("DMH") Sex Offender Rehabilitation and Treatment Services ("SORTS") facilities filed this class action lawsuit pro se in the U.S. District Court for the Eastern District of Missouri. The ... read more >
On June 22, 2009, a group of civilly committed residents of the Missouri Department of Mental Health's ("DMH") Sex Offender Rehabilitation and Treatment Services ("SORTS") facilities filed this class action lawsuit pro se in the U.S. District Court for the Eastern District of Missouri. The plaintiffs sued the DMH and the Missouri Department of Corrections under 42 U.S.C. § 1983.

Each of the plaintiffs had previously been found guilty of a sexually violent crime and have also been declared a sexually violent predator ("SVP") under Missouri's SVP Act, Mo. Rev. Stat. §§ 632.480-632.525. Prisoners found guilty of a sexually violent crime are declared SVPs when there is probable cause to believe that they are likely to engage in sexually violent predatory criminal behavior upon their release. Individuals declared SVPs are civilly committed to a SORTS facility for rehabilitation.

The plaintiffs alleged that the SORTS treatment program was ineffective and harmful, and that the true purpose of SORTS was institutionalization and indefinite detention. The plaintiffs claimed a violation of their Fifth Amendment rights against double jeopardy, their Eighth Amendment rights to be free of cruel and unusual punishment, and their Fourteenth Amendment rights of Equal Protection and Due Process. The plaintiffs requested that the court declare the Missouri SVP statute unconstitutional, both on its face and as applied, and require the DMH to reform SORTS as needed. Private counsel was appointed for the plaintiffs on September 2, 2009, but was replaced by attorneys from the ACLU of Missouri on March 23, 2010.

On June 25, 2010, the defendants moved to dismiss the case for failure to state a claim upon which relief can be granted. On July 25, 2011, District Judge Audrey G. Fleissig denied that motion in large part, holding that many of plaintiffs' claims for prospective equitable relief for the allegedly unconstitutionally inadequate treatment were fact-intensive and required further factual development. 2011 WL 3099919.

On September 30, 2011, Judge Fleissig certified the matter as a class action; she agreed to a "Treatment Class" of all persons who are or will be during the pendency of this action, residents of SORTS as a result of civil commitment, and "Charging Class" of all persons who are or will be during the pendency of this action, residents and former residents, of SORTS as a result of civil commitment, and who have been, or will be, billed or charged for care, treatment, room or board by SORTS or by the SMMHC. 2011 WL 4600688. Judge Fleissig also granted the plaintiffs' proposal for notification to class members on November 7, 2011.

The plaintiffs filed their fifth and final amended complaint on February 19, 2014, adding a violation of Title II of the Americans with Disabilities Act (ADA) to their allegations. On March 28, 2014, the plaintiffs also moved for a preliminary injunction, but both parties reached a stipulation regarding the preliminary injunction on October 2, 2014, which made the motion moot.

On April 22, 2014, the defendants moved to dismiss the plaintiffs' fifth amended complaint for failure to state a claim upon which relief can be granted. On October 17, 2014, Judge Fleissig granted the motion in part, dismissing the plaintiffs' Sixth and Eighth Amendment claims, but denied the motion with respect to the plaintiffs' Fourteenth Amendment and ADA claims. The plaintiffs filed a motion to reconsider the dismissal of the Sixth and Eighth Amendment claims on December 1, 2014, but this motion was denied by Judge Fleissig on February 10, 2015.

The defendants moved for summary judgment on December 12, 2014. Judge Fleissig granted summary judgment with respect to the plaintiffs' Equal Protection claims, but denied summary judgment for their Due Process claims. On April 20, 2015, the plaintiffs moved to dismiss their ADA claim, leaving their Due Process claim as the only issue remaining for trial. On December 18, 2014, the plaintiffs filed an uncontested motion to bifurcate trial by first conducting a separate trial on the question of whether the defendants were liable, and if so, then conducting a second trial to determine the appropriate remedies and relief. Judge Fleissig granted the motion on December 19, 2014.

The initial bench trial began on April 21, 2015, and ended on April 30, 2015. On September 11, 2015, Judge Fleissig ruled for the plaintiffs. Judge Fleissig held that the Missouri SVP statute was not unconstitutional on its face, but was indeed unconstitutional as applied. Judge Fleissig also held that it was now appropriate to move onto a second trial to determine appropriate remedies and relief. 129 F.Supp.3d 839.

On October 20, 2016, the parties held Fairness Hearing proceedings before Judge Fleisseg to review their proposed settlement agreement as to remedies. On November 23, 2016, Judge Fleisseg rejected the proposed settlement and ordered the parties to prepare for trial on the remedies. The Judge noted "all of the class representatives and most of the class members oppose the settlement."

As the parties progressed toward trial, the Eighth Circuit issued an opinion in Karsjens v. Piper arguing that the plaintiff in an as-applied challenge has to prove two things: “that the state defendants’ conduct was conscience-shocking, and that the state defendants violated one or more fundamental rights that are...implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” This court found that the new case law required the court to vacate its liability opinion and enter judgment for the defendants. The court argued that the plaintiffs in this case had not demonstrated a fundamental liberty interest was violated. Further, the court found that based on the facts in Karsjens, the defendants' behavior in this case cannot be considered conscience-shocking.

The plaintiffs filed notice of appeal on Sept. 18, 2017.

The case is ongoing.

John He - 10/23/2015
Virginia Weeks - 10/04/2017


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Issues and Causes of Action
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Issues
Constitutional Clause
Cruel and Unusual Punishment
Due Process
Equal Protection
Crowding
Crowding / caseload
Defendant-type
Corrections
Jurisdiction-wide
General
Classification / placement
Commitment procedure
Conditions of confinement
Discharge & termination plans
Failure to supervise
Failure to train
Funding
Habeas Corpus
Over/Unlawful Detention
Placement in detention facilities
Placement in mental health facilities
Rehabilitation
Sex offender regulation
Staff (number, training, qualifications, wages)
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Defendant(s) Missouri Department of Corrections
Missouri Department of Health
Plaintiff Description A group of individuals previously found guilty of a sexually violent crime and declared sexually violent predators (“SVP”) under Missouri’s SVP Act (Mo. Rev. Stat. §§ 632.480–632.525), who have now been civilly committed to the Missouri Department of Mental Health’s (“DMH”) Sex Offender Rehabilitation and Treatment Services (“SORTS”) facilities.
Indexed Lawyer Organizations ACLU Chapters (any)
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Case Ongoing Yes
Additional Resources
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  Philadelphia Forfeiture
http://ij.org/case/philadelphia-forfeiture/
Date: Aug. 11, 2014
By: Institute for Justice (Institute for Justice)
[ Detail ]

Docket(s)
4:09-cv-971 (E.D. Mo.)
CJ-MO-0009-9000.pdf | Detail
Date: 10/04/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Complaint [ECF# 1]
CJ-MO-0009-0001.pdf | Detail
Date: 06/22/2009
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order (2011 WL 3099919) (E.D. Mo.)
CJ-MO-0009-0002.pdf | WESTLAW | Detail
Date: 07/25/2011
Source: Bloomberg Law
Memorandum and Order [ECF# 197] (2011 WL 4600688) (E.D. Mo.)
CJ-MO-0009-0003.pdf | WESTLAW | Detail
Date: 09/30/2011
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 199] (E.D. Mo.)
CJ-MO-0009-0004.pdf | Detail
Date: 11/07/2011
Source: PACER [Public Access to Court Electronic Records]
Fifth Amended Complaint [ECF# 258]
CJ-MO-0009-0005.pdf | Detail
Date: 02/19/2014
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order (2014 WL 5320232) (E.D. Mo.)
CJ-MO-0009-0006.pdf | WESTLAW | Detail
Date: 10/17/2014
Source: Bloomberg Law
Memorandum and Order (2014 WL 7335150) (E.D. Mo.)
CJ-MO-0009-0007.pdf | WESTLAW | Detail
Date: 12/19/2014
Source: Bloomberg Law
Memorandum and Order (2015 WL 541204) (E.D. Mo.)
CJ-MO-0009-0008.pdf | WESTLAW | Detail
Date: 02/10/2015
Source: Bloomberg Law
Memorandum and Order (2015 WL 1286346) (E.D. Mo.)
CJ-MO-0009-0009.pdf | WESTLAW | Detail
Date: 03/20/2015
Source: Bloomberg Law
Memorandum Opinion (129 F.Supp.3d 839) (E.D. Mo.)
CJ-MO-0009-0010.pdf | WESTLAW| LEXIS | Detail
Date: 09/11/2015
Source: Bloomberg Law
Memorandum and Order [ECF# 709] (2016 WL 6893814) (E.D. Mo.)
CJ-MO-0009-0011.pdf | WESTLAW | Detail
Date: 11/23/2016
Source: PACER [Public Access to Court Electronic Records]
Memorandum and Order [ECF# 786] (E.D. Mo.)
CJ-MO-0009-0012.pdf | Detail
Date: 07/06/2017
Source: PACER [Public Access to Court Electronic Records]
Judges Fleissig, Audrey Goldstein (E.D. Mo.)
CJ-MO-0009-0002 | CJ-MO-0009-0003 | CJ-MO-0009-0004 | CJ-MO-0009-0006 | CJ-MO-0009-0007 | CJ-MO-0009-0008 | CJ-MO-0009-0009 | CJ-MO-0009-0010 | CJ-MO-0009-0011 | CJ-MO-0009-0012 | CJ-MO-0009-9000
Plaintiff's Lawyers Calvert, Winston E. (Missouri)
CJ-MO-0009-0005 | CJ-MO-0009-9000
Doty, Grant R. (Missouri)
CJ-MO-0009-0005 | CJ-MO-0009-9000
Kister, Susan S. (Missouri)
CJ-MO-0009-9000
Kozak, Scott K.G. (Missouri)
CJ-MO-0009-9000
LaRose, Christopher (Missouri)
CJ-MO-0009-0005 | CJ-MO-0009-9000
Martin, James G. (Missouri)
CJ-MO-0009-9000
McNulty, Andrew (Missouri)
CJ-MO-0009-9000
O'Toole, Daniel K. (Missouri)
CJ-MO-0009-0005 | CJ-MO-0009-9000
Praiss, Omri E. (Missouri)
CJ-MO-0009-9000
Quinn, John H. III (Missouri)
CJ-MO-0009-9000
Rothert, Anthony [Tony] E. (Missouri)
CJ-MO-0009-0005 | CJ-MO-0009-9000
Scherrer, Richard B. (Missouri)
CJ-MO-0009-9000
Selig, Eric M. (Missouri)
CJ-MO-0009-0005 | CJ-MO-0009-9000
Steffan, Jessie (Missouri)
CJ-MO-0009-9000
Wack, Thomas E. (Missouri)
CJ-MO-0009-9000
White, Ronnie Lee II (Missouri)
CJ-MO-0009-9000
Wilcox, Gillian R. (Missouri)
CJ-MO-0009-9000
Defendant's Lawyers Dandurand, Joesph Paul (Missouri)
CJ-MO-0009-9000
Fennessey, Rex P. (Missouri)
CJ-MO-0009-9000
Luepke, Henry F. III (Missouri)
CJ-MO-0009-9000
Morris, Mary Delworth (Missouri)
CJ-MO-0009-9000
Norwood, Ronald A. (Missouri)
CJ-MO-0009-9000
Poole, Joel A. (Missouri)
CJ-MO-0009-9000
Sholtz, Philip (Missouri)
CJ-MO-0009-9000
Walsh, Katherine S. (Missouri)
CJ-MO-0009-9000

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