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Sunday, November 3, 2013

N.D. SVP Class-Action Lawsuit Filed

North Dakota Civilly Committed Sex Offenders Filed a Class-Action lawsuit on Friday:

http://bismarcktribune.com/news/state-and-regional/lawsuit-accuses-north-dakota-of-mistreating-sex-offenders/article_412ad1ac-4325-11e3-a338-001a4bcf887a.html

http://www.ndnewsfeed.com/grand-forks/lawsuit-accuses-nd-of-mistreating-sex-offenders/

Here is a link to the First Amended Complaint the Plaintiff's attorney, Chris Brancart sent me from California that I shared with the Task Force:

chrome://external-file/%5B40%5D%20First%20Amended%20Complaint-2.pdf

UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

RODNEY J. IRELAND; )

LESTER McGILLIS; GERALD )

DeCOTEAU; WILLIAM )

CARTER; RYAN CORMAN; )

DUSTIN DEAN; MATTHEW )

GRAHAM; TERRY GREAK; )

GLENN HALTON; ROBERT )

HOFF; MONTE HOJIAN; )

JEREMY JOHNSON; MICHAEL )

KRUK; GARRETT LOY; )

KEVETTE MOORE; CRUZ )

MUSCHA; DARIN NAPIER; )

PAUL OIE; TIMOTHY OLPIN; )

LARRY RUBEY; CHRISTOPHER )

SIMON; KELLY TANNER; and )

JOHN WESTLIE, )

)

Plaintiffs, )

)

vs. )) MAGGIE D. ANDERSON, )

Executive Director, North Dakota )

Department of Human Services; )

ALEX SCHWEITZER, )

Superintendent, North Dakota )

State Hospital; and LEANN )

BERTSCH, Director, North )

Dakota Department of )

Corrections and Rehabilitation, )

each in their individual and )

official capacities, )

)

Defendants. )

)

Case No. 3:13-cv-00003-KKK

FIRST AMENDED CLASS

ACTION COMPLAINT FOR

INJUNCTIVE AND

DECLARATORY RELIEF



Case 3:13-cv-00003-KKK Document 40 Filed 11/01/13 Page 1 of 63


I. INTRODUCTION



1. Plaintiffs bring this action on behalf of themselves and a class of

individuals civilly committed as sexually dangerous individuals under Chapter 25-

03.3 of the North Dakota Century Code, alleging that defendants have violated

plaintiffs’ constitutional rights.


II. JURISDICTION AND VENUE



2. Jurisdiction is conferred on this Court by 28 U.S.C. § 1331 in that the

claims alleged herein arise under the laws of the United States.

3. Venue is proper in that the claims alleged herein arose in Jamestown,

North Dakota.


III. PARTIES



4. Plaintiff Rodney J. Ireland is an individual committed to the North

Dakota Department of Human Services as a sexually dangerous individual (SDI)

under Chapter 25-03.3 of the North Dakota Century Code. He is presently

incarcerated as an SDI in the Secured Unit operated by and located at the North

Dakota State Hospital (NDSH) in Jamestown, North Dakota.

5. Plaintiff Lester McGillis is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the


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Secured Unit at NDSH.

6. Plaintiff Gerald DeCoteau is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

7. Plaintiff William Carter is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

8. Plaintiff Ryan Corman is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

9. Plaintiff Dustin Dean is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

10. Plaintiff Matthew Graham is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the


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North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

11. Plaintiff Terry Greak is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

12. Plaintiff Glenn Halton is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

13. Plaintiff Robert Hoff is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

14. Plaintiff Monte Hojian is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

15. Plaintiff Jeremy Johnson is an individual committed to the North


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Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

16. Plaintiff Michael Kruk is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

17. Plaintiff Garrett Loy is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

18. Plaintiff Kevette Moore is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

19. Plaintiff Cruz Muscha is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.


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20. Plaintiff Darin Napier is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

21. Plaintiff Paul Oie is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

22. Plaintiff Timothy Olpin is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

23. Plaintiff Larry Rubey is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

24. Plaintiff Christopher Simon is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the


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Secured Unit at NDSH.

25. Plaintiff Kelly Tanner is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

26. Plaintiff John Westlie is an individual committed to the North

Dakota Department of Human Services as an SDI under Chapter 25-03.3 of the

North Dakota Century Code. He is presently incarcerated as an SDI in the

Secured Unit at NDSH.

27. Defendant Maggie D. Anderson is the Executive Director of the

North Dakota Department of Human Services (“DHS”). The executive director of

the DHS is responsible for the care, custody, and control of sexually dangerous

individuals pursuant to N.D.C.C. §§ 25-03.3-13 and for the DHS policies alleged

herein. Anderson is sued in her individual and official capacities.

28. Defendant Alex Schweitzer is the Superintendent of the North Dakota

State Hospital. The North Dakota State Hospital houses the state’s Sex Offender

Treatment Program and Schweitzer is responsible for the NDSH policies alleged

herein. Schweitzer is sued in his individual and official capacities.

29. Defendant Leann Bertsch is the Director of the North Dakota


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Department of Corrections and Rehabilitation (“DOCR”). Pursuant to N.D.C.C. §

25-03.3-03.1, the DOCR is responsible for assessing inmates who have been

convicted of sexually predatory conduct and referring inmates to state’s attorneys

for potential civil commitment proceedings. Bertsch is responsible for the DOCR

policies alleged herein. Bertsch is sued in her individual and official capacities.


IV. CLASS ACTION ALLEGATIONS



30. Plaintiffs bring this action pursuant to Fed. R. Civ. P. 23(a) and (b)(2)

seeking injunctive and declaratory relief on behalf of themselves and a class

consisting of all individuals currently civilly committed as sexually dangerous

individuals under Chapter 25-03.3 of the North Dakota Century Code (the

“Class”).

31. 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.

32. Numerosity. Plaintiffs estimate that the Class contains at least 60

members and is therefore so numerous that joinder of all members is impractical.

33. Commonality. There are questions of law and fact common to the


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Class, including:

a. Whether defendants violated plaintiffs’ and the Class members’ Due

Process rights protected by the Fourteenth Amendment to the United States

Constitution by:


¥

. violating plaintiffs’ and class members’ rights by depriving them of

a realistic opportunity to meet the requirements to be discharged as

determined by an appropriate mental health professional and that is

within the scope of acceptable mental health treatment;

ii. failing to provide a less restrictive confinement option; and

iii. creating an unnecessarily punitive environment; and,

iv. depriving them of liberty without any necessary relationship to a

compelling governmental objective.

b. Whether defendants violated plaintiffs’ and the Class members’ Equal

Protection rights protected by the Fourteenth Amendment to the United States

Constitution by discriminating against them solely on the basis of their status as a

hated minority of offenders.

c. Whether defendants violated plaintiffs’ and the Class members’ free

speech and association rights protected by the First Amendment to the United

States Constitution by depriving them of those rights and punishing them for


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exercising those rights.

d. Whether defendants violated plaintiffs’ and the Class members’ rights

under the Fourth Amendment to the United States Constitution by unreasonably

invading, taking, or infringing their privacy, person and property.

e. Whether defendants violated plaintiffs’ and the Class members’ rights

under the Sixth Amendment to the United States Constitution by continuing their

incarceration imposed without the right to trial by jury.

f. Whether defendants violated plaintiffs’ and the Class members’ rights

under the Eighth Amendment to the United States Constitution by imposing

indeterminate confinement upon them in the most restrictive, prison-like

conditions without effective treatment.

34. Typicality. 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.

35. Adequacy. 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


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prosecution of civil rights and class action litigation.


V. NATURE OF THE CLAIMS



36. Plaintiffs allege that the defendants, acting in their official or

individual capacities, 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;

b. Denied plaintiffs and Class members the right to be free from

punishment in violation of the Fourteenth Amendment to the United States

Constitution;

c. Denied plaintiffs and Class members the right to be free from

punishment without trial by jury in violation of the Sixth Amendment to the

United States Constitution;

d. Denied plaintiffs and Class members the right to be free from

inhumane treatment in violation of Fourteenth and Eighth Amendments to

the United States Constitution;

e. Denied plaintiffs and Class members less restrictive alternative

confinement in violation of the Fourteenth Amendment to the United States

Constitution;

f. Denied plaintiffs and Class members less restrictive alternative


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confinement in violation of the Fourteenth Amendment to the United States

Constitution;

g. Unreasonably restricted the First Amendment rights of free speech

and association of plaintiffs and Class members in violation of the United

States Constitution;

h. Implemented unreasonable searches and seizures upon plaintiffs and

Class members in violation of the Fourth Amendment to the United States

Constitution; and,

i. Invaded the privacy of plaintiffs and Class members in violation of

the Fourth Amendment to the United States Constitution.

37. Plaintiffs seek injunctive relief for these constitutional violations on

behalf of themselves and Class members.


VI. FACTS

A. SDI Civil Commitment Statutory Framework.



38. The Legislature enacted Chapter 25-03.3 of the North Dakota Century

Code in 1999 to provide for civil commitment of sexually dangerous individuals.

1997 North Dakota Laws Ch. 243 (H.B. 1047).

39. Pursuant to N.D.C.C. § 25-03.3-01(8), a “sexually dangerous

individual” (“SDI”) means “an individual who is shown to have engaged in


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sexually predatory conduct and who has a congenital or acquired condition that is

manifested by a sexual disorder, a personality disorder, or other mental disorder or

dysfunction that makes that individual

likely to engage in further acts of sexually

predatory conduct which constitute a danger to the physical or mental health or

safety of others” (Emphasis added).

40. “Sexually predatory conduct” is defined in § 25-03.3-01(9). It is very

broadly defined covering offenses and conduct commonly recognized as predatory

as well as statutory offenses, such as engaging in consensual sexual conduct with a

person under age 18.

41. The DOCR is required to maintain treatment records for any inmate

who has been convicted of an offense that includes sexually predatory conduct.

Approximately six months before the projected date for the inmate’s release,

DOCR must complete an assessment of the inmate to determine whether a

recommendation is to be made to a state’s attorney for civil commitment of the

inmate as an SDI. The assessment must be based on actuarial and clinical

evaluations or any other information determined by the director of the DOCR to be

relevant, including inmate behavior and whether the inmate participated in sexual

offender treatment while incarcerated. N.D.C.C. § 25-03.3-03.1. Inmates are not

notified by DOCR that they are being assessed for possible civil commitment as an


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SDI.

42. If, following the assessment, the DOCR determines that an inmate

may meet the definition of an SDI, the DOCR must refer the inmate to a state’s

attorney of an appropriate county or counties for possible civil commitment

proceedings. N.D.C.C. § 25-03.3-03(2). The state’s attorney must notify the

DOCR of his or her intended disposition of the referral at least 60 days prior to the

release date of the inmate. N.D.C.C. § 25-03.3-03.1(4). Inmates are not notified

by DOCR or the state’s attorney that DOCR has referred the inmate to the state’s

attorney for possible civil commitment as an SDI.

43. If it appears that an individual meets the definition of a sexually

dangerous individual, N.D.C.C. § 25-03.3-03 authorizes the state’s attorney to file

a petition in the district court alleging that the individual is an SDI. Upon the

filing of a petition, the district court must determine whether to issue an order for

detention of the individual. N.D.C.C. § 25-03.3-08(1). If the court finds cause to

believe that the individual is an SDI (which may be heard ex parte), the court must

issue an order for detention, directing that the individual be taken into custody and

transferred to an appropriate treatment facility or local correctional facility to be

held for a subsequent hearing.

Id. As a matter of policy, procedure or practice,

inmates are not notified by DOCR or the state’s attorney – until the day of or a few


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days before the inmate’s scheduled release date from state prison – that the state’s

attorney has filed a petition seeking their referral to NDSH for evaluation as an

SDI.

44. The detained individual is entitled to a preliminary hearing within 72

hours of being taken into custody, excluding weekends and holidays, but may

waive that right. N.D.C.C. § 25-03.3-11. The individual has a right to be present,

to testify, and to present and cross-examine witnesses at the preliminary hearing.


Id.


If he waives the preliminary hearing, then the individual must be immediately

transferred to an appropriate treatment facility for an evaluation as to whether he is

an SDI as defined by N.D.C.C. § 25-03.3-01(8). If the individual does not waive

the preliminary hearing, the court will determine whether there is probable cause

to believe the individual is an SDI and, if so, order him transferred to an

appropriate treatment facility for an evaluation as to whether he is an SDI.

The detained individual is entitled to legal counsel, retained or appointed,

N.D.C.C. § 25-03.3-09(1), and an expert, retained or appointed, to conduct an

evaluation and testify on his behalf. N.D.C.C. § 25-03.3-10.

45. In reality, the failure of either DOCR or the state’s attorney to provide

inmates with notice of their pending SDI assessment, referral to the state’s

attorney, and filing of the petition for civil commitment results in few contested


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hearings. Under the current system, a prospective SDI is required to submit to

incarceration in county jail, typically housed in general population, if he wants to

confer with counsel and mount a defense to the petition for referral for SDI

evaluation. Most referral decisions granted by North Dakota district court judges

under N.D.C.C. § 25-03.310 are made without any testimony being taken from

either side.

46. Within 60 days after the finding of probable cause, the court must

conduct a commitment proceeding to determine whether the detained individual is

an SDI. N.D.C.C. § 25-03.3-13. The proceeding must be tried to the court and not

a jury.

Id. The state has the burden to prove by clear and convincing evidence

that the individual is an SDI.

Id. The individual has a right to be present, to

testify, and to present and cross-examine witnesses.

Id.

47. In reality, most commitment hearings occur far after the 60-day

deadline, typically occurring several months to more than one year after the

prospective SDI is incarcerated at NDSH for his SDI evaluation. During this

period of incarceration, the SDI receives no treatment or access to any of the

services, facilities, or privileges that are afforded inmates incarcerated by DOCR.

Instead, he is jailed in Secured Unit One North, where he is stripped of his

personal property and his movements are restricted to the unit, except for a brief


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recreation period – approximately 50 minutes per day at the discretion of staff – in

a small enclosure, fenced with razor wire.

48. If the court finds the individual to be an SDI, it must commit him to

the care, custody and control of the executive director of the Department of

Human Services.

Id. The DHS must place the committed individual in an

appropriate facility or program at which treatment is available. The appropriate

treatment facility or program must be the least restrictive available treatment

facility or program necessary to achieve the purposes of statute. The DHS may not

be required to create a less restrictive treatment facility or treatment program

specifically for the committed individual. Unless the individual has been

committed to legal and physical custody of the DOCR, he may not be placed at a

penal facility and his treatment program may not be provided at the state

penitentiary or other penal facility.

Id.

49. In reality, as described below, the NDSH’s Secured Unit, where SDIs

are incarcerated, has been transformed into a penal facility as a means of

implementing the state’s policy of preventative detention of sex offenders.

50. Once committed as an SDI, an individual must remain in the care,

custody, and control of the DHS until, in the opinion of the executive director, the

individual is safe to be at large. N.D.C.C. § 25-03.3-17(1). An examination of his


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mental condition is conducted at least once a year and a report regarding that

examination provided to the court. At the time of the yearly examination, the

committed individual has the right to have an expert, either retained or appointed,

conduct an examination and report to the court. N.D.C.C. § 25-03.3-17(2).

51. In reality, as describe below, the State’s SDI system – commonly

known as NDSH’s Sex Offender Treatment and Evaluation Program (“SOTEP”) –

has evolved into a penal facility incarcerating SDIs for indeterminate sentences of

incarceration. The annual evaluation process has been manipulated to sustain the

state’s policy of preventative detention of sex offenders.

52. After receiving the report of examination, the court may order further

examination and may conduct a hearing on whether the individual is to be

discharged or retained as an SDI. N.D.C.C. § 25-03.3-17(4). The executive

director of DHS may only discharge an SDI from commitment pursuant to a court

order. N.D.C.C. § 25-03.3-17(5).

53. In reality, as described below, the only means by which an SDI can

obtain release from incarceration at NDSH’s Secured Unit is by serving years,

typically more than a decade, of incarceration and then convincing a state district

court judge to order his release.

54. The committed individual also may petition, on a yearly basis, for


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discharge. N.D.C.C. § 25-03.3-18(1). If the individual has not had a court hearing

on his SDI status within the previous 12 months, he is entitled to a hearing on his

petition. N.D.C.C. § 25-03.3-18(2). At the hearing, the individual has the same

procedural rights and protections as at the commitment hearing. N.D.C.C. §

25-03.3-18(3). The burden is on the state to show by clear and convincing

evidence that the committed individual remains a sexually dangerous individual.

N.D.C.C. § 25-03.3-18(4). The individual has a right to appeal from an order of

commitment or an order denying a petition for discharge. N.D.C.C. § 25-03.3-19.

55. Once placed in a treatment facility, the committed individual has the

same rights as other residents of the facility, subject to the following limitations

and restrictions: (1) The individual’s rights are subordinate to legitimate safety

precautions and to the terms of the applicable individualized habilitation or

treatment plan; and (2) If an individual’s rights are inconsistent with Chapter 25-

03.3 in a particular situation, the specific provisions of that chapter prevail.

N.D.C.C. § 25-03.3-23.

56. In realty, as described below, NDSH’s Secured Unit, where NDSH’s

SOTEP program incarcerates SDIs, is operated and modeled after a strict penal

facility, providing SDIs fewer services, facilities, and privileges than the services,

facilities, and privileges afforded to inmates serving criminal sentences in the


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prisons operated by DOCR. In general, an SDI’s experience in the SOTEP

program turns the concept of prison on its head: Most SDIs come to NDSH’s

SOTEP program after completing their sentences of incarceration at a DOCR

prison facility. They have intimate personal knowledge of the quality, scope and

nature of services, facilities, and privileges provided to them as inmates in the

custody of DOCR and a deep, personal appreciation of the greater restrictions

imposed under NDSH’s SOTEP program. SDIs incarcerated under the SOTEP

program are subject to substantially greater limitations and restrictions than non-

SDI individuals committed to NDSH, except for those non-SDI individuals in

throes of psychiatric crisis.

57. Evidence of an individual’s prior sexually predatory conduct or

criminal conduct, including juvenile court records, is admissible in any of the

proceedings under Chapter 24-03.3. N.D.C.C. § 25-03.3-15. The normal

confidentiality rights associated with medical treatment, including the physicianpatient

privilege and psychotherapist-patient privilege, do not apply to

communications with a committed individual, nor with a detained individual if the

professional determines the patient is in need of commitment. N.D.C.C. § 25-

03.3-05(1).

58. Chapter 25-03.3 provides for some additional procedures for persons


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with intellectual disabilities (defined as mental retardation under the DSM-VI),

including notice to the individual’s guardian. N.D.C.C. §§ 25-03.3-01(3), 25-

03.3-08(2), 25-03.3-10.

59. The state’s statute for the commitment of sex offenders is,

conceptually, modeled after its general civil commitment statute, but with several

significant differences. Civil commitment of a person needing treatment requires

a court order that can be obtain only after completion of a court proceeding in

which notice is widely provided to persons who can assist the prospective patient

in exercising his or her rights. Civil commitment of a patient requires a finding of

a “serious risk of harm.” In making that finding, the court is required to make

specific findings regarding the suitability of less restrictive alternatives to

commitment. Civil commitment of patients is time-limited by statute. By statute,

orders of civil commitment of a patient expire by certain dates or time periods. A

civil commitment order of a patient may not be extended beyond a certain duration

without a hearing, regardless of whether the patient or NDSH requests such a

hearing.

60. The state’s SDI civil commitment statute lacks most of those

protections. The standard for commitment of an SDI is whether that person “is

likely to engage” in a broadly defined set of sexual behaviors. Unlike the “serious


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risk of harm” standards imposed for committing patients, the SDI law presumes

harm. Most importantly, the decision whether to commit a person under the SDI

law turns on whether that person is likely to engage in certain sexual behaviors

over the course of his lifetime. There is no comparable standard for civil

commitment of a patient; nowhere in the cases or literature is commitment of a

patient justified or defendable because that patient, sometime in his or her lifetime,

may pose “serious risk of harm” to themselves or others. Finally, the SDI

commitments are indeterminate, with no mandatory court proceeding for renewal.


B. SDI Civil Commitment Referrals by DOCR.



61. The DOCR Sex Offender Treatment Team, consisting of sex offender

treatment staff and a clinical psychologist, meets monthly to review cases and

make recommendations to the state’s attorneys regarding referring soon to be

released sex offenders for civil commitment assessment.

62. For purposes of the DOCR’s review for potential referral, a “sex

offender” is defined as an inmate meeting one or more of the following criteria:

(1) Offender who is incarcerated or on supervision for a current sex

offense;

(2) An offender who has a prior record of sex offenses and remains subject

to sex offender registration laws;


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(3) An offender who is incarcerated or on supervision for a non-sex offense

where the criminal elements of the act were sexually motivated;

(4) An offender who has been found guilty of sexual misconduct involving

sexually predatory behavior while on inmate status in the DOCR;

(5) An offender who is serving a sentence for a non-sex related offense

concurrent with a civil commitment order as a sexual predator; or

(6) An offender with any history of sexually predatory conduct as defined

in N.D.C.C. § 25-03.3-01(9).

In order to be reviewed for possible referral, the sex offender must not have in

excess of six years at liberty since his last instance of sexual misbehavior or sex

offense.

63. The sex offender treatment team reviews the cases and treatment staff

provides input regarding recommendations to the state’s attorneys. The final

decision regarding recommendation is left to the clinical psychologist on the team.

64. The DOCR uses the Minnesota Sex Offender Screening Tool –

Revised (“MnSOST-R”) as a screening tool for referral for possible civil

commitment. The MnSOST-R is an actuarial risk test that attempts to predict the

likelihood that a particular sex offender will reoffend upon release based on a

statistical model drawing correlations between risk factors and certain outcomes.


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65. Between 1999 and 2004, the DOCR sent referral letters to the state’s

attorneys for sex offenders who scored 12 or higher on the MnSOST-R.

Following the November 2003 murder of University of North Dakota (“UND”)

student Dru Sjodin by a released Minnesota sex offender, the state implemented a

policy of preventative detention, incapacitating sex offenders through a system of

indeterminate incarceration under the SOTEP program.


C. The State Adopts a Policy of Preventative Detention of Sex

Offenders, Implemented by DOCR and DSS.



66. On November 22, 2003, Dru Katrina Sjodin, a 22-year old student at

UND, was abducted from the Columbia Mall parking lot in Grand Forks and then

murdered by Alfonso Rodriguez, Jr., a registered sex offender. Rodriguez had

recently been released from a Minnesota prison after serving a 23-year prison

sentence for kidnaping, assault and rape. Dru Sjodin’s body was not discovered

until April 2004 in Crookston, Minnesota.

67. It is difficult to underestimate the effect that Dru Sjodin’s murder by

Rodriguez had on the public and governmental officials. Dru Sjodin was an

attractive young woman working her way through UND by holding down two

jobs. Thousands helped search for her. The local media and several national news

outlets covered the story for months. Hundreds of people attended her funeral.


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UND created a scholarship in her name. Her hometown established a memorial

garden to honor her. Rodriguez was prosecuted by North Dakota’s U.S. Attorney

Drew Wrigley, who sought the death penalty, a sentence unavailable in North

Dakota or Minnesota and rarely sought by federal prosecutors. It was the first

death penalty case tried in North Dakota in a century. Rodriguez was convicted

and sentenced to death.

68. Although sex offenders have long been the most hated of criminals,

Dru Sjodin’s murder galvanized politicians and public officials. Congress passed

the Dru Sjodin National Sex Offender Public Registry in 2006. Minnesota’s civil

commitment program for sex offenders was excoriated: How could someone like

Rodriguez not get committed following his prison sentence for abduction, deadly

assault and rape? The reaction of public officials in North Dakota was profound:

The state adopted a de facto policy of preventative detention, determined to

incapacitate sex offenders like Rodriguez from victimizing persons like Dru

Sjodin.

69. Looking back, some state officials concede now that their de facto

policy of preventative detention may have been an over reaction. DOCR recently

commissioned an internal study of the effect and efficacy of the state’s

preventative detention policy. Written by two UND academics, the DOCR study,


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entitled “MNSOST-R Score and Post-Release Recidivism Among Sex Offenders

Released in North Dakota,” examined the effort of North Dakota’s preventative

detention policy:

Following the November 2003 murder of Dru Sjodin by a released

sex offender, policy changes occurred in both Minnesota and North

Dakota in the interest of public safety. In November of 2004, NDSP

staffs were directed to send letters to county state’s attorneys for all

sex offenders nearing release who were scored 8 or higher on the

MNSOST-R rather than 12 or higher as was previously utilized as a

“presumptive” cut-point at which a letter would be sent absent any

compelling reason not to send such a letter.

. . . .

The present research examines whether individuals added to the

group for whom letters requesting examination for civil commitment

were sent (scoring 8-11 on the MnSOST-R) are in fact more likely

than not to re-offend sexually.

. . . .

Prediction of “risk” of sexual re-offense has received a great deal of

interest in recent years, as has social policy in regard to managing sex


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offenders and “protecting” the public. States and municipalities have

enacted laws to restrict residency and movement of released

offenders. While an unintended result of many of these activities may

be to make it more difficult for released offenders to reintegrate into

society, it may well be that some of these procedures intended to

more closely monitor released offenders (especially higher risk

offenders) may be a reason that those individuals scoring 8-11 on the

MNSOST-R were significantly more likely NOT to re-offend than to

re-offend. That is, though their (internal) risk may have been high,

external controls may have reduced the risk of acting on their

impulses to less than 50%.

. . . .

Since November 2004 and until very recently, North Dakota has used

a MNSOST-R cut-score of 8 to trigger such letters. It appears this

significantly increases the number of such letters, adds to the

workloads of state’s attorneys, and may lead to unjustified increases

the population of the treatment facility in Jamestown. All of this has

occurred despite the lack of evidence in this study that such scores

indicate these individuals are more likely than not to re-offend


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sexually. Admittedly, samples in the present study were small,

weakening analyses and the generality of the findings. However,

“ecological” validity was maximal in that these were the real cases

reviewed by the real reviewers and examined after various periods at

liberty. Most importantly, the subjects were real offenders whose

lives were impacted by these procedures.

. . . .

Having tried to make the point that those offenders who were scored

8-11 on the MNSOST-R were not “more likely than not” to re-offend

sexually, we must now point out that grouping scores in this manner

[e.g., 8-11] is not wise. Any time this is done, it will systematically

underestimate deviation from baseline for the more extreme scores

and overestimate it for the more central scores. Risk scores should be

considered on their own merit, unless the group considered includes

the individual’s score as the central point plus and minus some

reasonable error of measurement.

. . . .

If grouped scores are used to estimate “risk” for an individual, then

there must be some rational reason to expect that the individual is


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represented by that group other than being within an array of scores

that we have chosen for our own purposes. It is, in fact, individuals

that appear in court to face civil commitment procedures, and the

implications of “risk” estimates can include indefinite commitment to

expensive confinement and treatment in a special sex offender

treatment unit. In North Dakota and Minnesota, until very recently,

this has often amounted to an indefinite, at best, and, at worst, a life

sentence.

The DOCR study concluded:

There is some risk, in my opinion, that when the inevitable and

carefully thought out legal challenge to the commitment process

arrives, procedures (such as presumptively sending letters for

individuals unlikely to re-offend) which are not well founded in

research may in fact endanger the standing of the entire commitment

structure. Similarly, civil commitment is based not on punishment

(and preventive detention is not legal in our country), but on disorders

or conditions that require treatment. There is little doubt that there

are individuals that should, in fact, be committed. It appears likely

though that unsupported fears about sex offenders and poorly thought


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out policies and procedures may lead to casting too wide a net in the

commitment process, thereby weakening it and making it more

susceptible to challenge in the long term.


D. NDSH’s Sex Offender Treatment Program (SOTEP).



70. All persons civilly committed as SDIs enter the Sex Offender

Treatment and Evaluation Program housed in the North Dakota State Hospital in

Jamestown. The SOTEP provides for no less restrictive alternatives to

incarceration at the NDSH’s Secured Unit, such as halfway houses or other less

prison-like facilities.

71. The SOTEP operates two separate treatment tracks. Each SDI starts

at Basic Skills I. SDIs are then sorted – based largely on their intellectual

functioning – into two groups. Each group also participates Cognitive

Restructuring (“Cog”).

72. For high functioning SDIs, there is the Core group, consisting of

Stage I through Stage IV. In Stage I, SDIs must learn how to comply with the

facility’s rules and learn basic treatment concepts. They must complete an

autobiographical history of important life events, an autobiographical offense

history for each sexual offense, a self-realization statement, identifying past

victimization and trauma, and a sex timeline, including a list of all sexual acts.


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Advancement from Stage I to Stage II requires a minimum of 90 days.

In Stage II, SDIs must discuss and work through their sexual offenses and patterns

of sexual abuse. Advancement from Stage II to Stage III requires a minimum of

300 days and approval of the NDSH Superintendent. Stage III focuses on

community reintegration. SDIs live in community transitional housing on the

NDSH campus with GPS monitoring, work up to 8 hours per day, and are allowed

to leave the facility with approved friends of family members. Advancement from

Stage III to Stage IV requires a minimum of 365 days. Stage IV is community

placement.

73. For low functioning SDIs, there is the Basic Skills group. After Basic

Skills I, these SDIs progress to Skills II, and to Skills III - Level 1, Skills III -

Level 2, Skills III - Level 3, Skills III - Level 4. The duration of each of these

Skills level varies widely.


E. The Evolution of NDSH’s SOTEP Program into a Penal Facility.



74. Since 2003, NDSH’s Secured Unit, where it operates the SOTEP

program, has been transformed from a civil treatment hospital to a penal facility

operated by a civil treatment hospital. This evolution can be described, in part, by

recounting the physical transformation of NDSH’s Secured Unit as a result of the

dramatic increase in SDI referrals after the Rodriguez case.


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75. In 2003, the Secured Unit at NDSH was a multi-use building. The

second floor housed DOCR’s drug and alcohol program. The first floor housed

other DOCR treatment programs, NDSH’s intake unit and SDI housing.

76. By 2005, the character of the Secured Unit had changed profoundly.

SOTEP had taken over the entire building (the DOCR programs having relocated

across the street to another building). Various housing units were established

within the SOTEP program and SDIs were assigned to those units depending on

their compliance with SOTEP rules and directions. By 2009, the housing structure

was established, copying the housing system used in most prisons.

77. Intake and certain observation cells were housed on the first floor in

Secured Unit One North. SDIs incarcerated there were stripped of their personal

property, highly supervised, and restricted to the unit for at least 23 hours per day.

At the discretion of staff, SDIs may be allowed for 50 minutes into a small outdoor

area, surrounded by razor wire.

78. Secured Unit One South was the most restrictive housing unit.

There, SOTEP staff place SDIs whom staff wanted to punish, make an example of,

or segregate from other SDIs. The structure, operation, and facilities of Secured

Unit One South are intentionally modeled after the most punitive and restrictive

housing provided by DOCR. (SOTEP staff consulted with DOCR wardens on its


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design and operation, as well as other aspects of converting the SOTEP program

into a penal facility operated within a state hospital system.)

79. SOTEP segregated the second floor of the building into two housing

units. Secure Unit Two holds SDIs who are compliant with their incarceration.

Once assigned to that unit, an SDI gains limited access to a few hours of work per

week at minimum wage, a wider selection of library materials, and the use, as

group, of a few extra hours of a larger outdoor area and a gym within the secured

facility. SDIs incarcerated in Secured Unit Two participate in the Core Treatment

track (Stage I - Stage VI).

80. Secured Unit Three, also housed on the second floor, houses SDIs

who SOTEP determines lack the intellectual capacity to participate in SOTEP’s

Core treatment track; instead, they participate in the Skills track.

81. Back on the first floor, SOTEP established Secure Unit Four, the least

restrictive housing unit within the building. SDIs incarcerated there gain greater

access to recreation, jobs, and more personal freedom within the unit. An SDI

who obtains placement on Secured Unit Four is allowed for the first time to leave

the secured unit and walk to other facilities on the NDSH grounds without being

transported under guard and in chains.

82. Between 2004 and 2009, NDSH also implemented a series of


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administrative and operational changes designed to convert the SOTEP program

into a penal facility. By 2009, NDSH had fully implemented its “secured

services,” modeling its procedures and protocols after the most restrictive DOCR

policies. To implement this transformation, SOTEP staff instituted over time the

changes described below.

83. First, SDIs’ communications with the outside were sharply curtailed.

Access to telephonic and written communications were restricted and monitored.

Commissary lists of items for purchase were copied from DOCR and then slashed

to the bare minimum. SDIs were instructed that consulting counsel – “lawyering

up” – was “counter-therapeutic.”

84. Second, SDIs were subjected to control procedures followed in the

most secured units operated by DOCR. SOTEP staff was encouraged to come

down hard on any behavior they wanted to characterize as disrespectful, inviting

staff to characterize their arbitrary enforcement of ambiguous rules as stopping

“counter-therapeutic” behaviors. SOTEP staff enforced a system of resident

behavior write-ups (“RBWs”), the most pernicious aspect of which was their use

to demote an SDI – based on behavioral issues unrelated to their treatment as sex

offenders – back to the start of the therapeutic program (Skills 1, the introductory

programming for all SDIs) after years of working their way to Stage II or Stage III.


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85. Third, SOTEP staff confiscated SDIs’ personal property and asserted

control over the use of personal property. Starting in 2005, SDIs were stripped of

their art supplies, crafts, writing instruments, papers, electronics, furniture, food

storage, art, books, sets of clothing, and other articles of personal property. Some

items were never returned; other were gradually “earned” back at the discretion of

SOTEP staff.

86. Fourth, SOTEP staff branded SDIs as inmates. By 2007, no SDI,

except those housed on Secured Unit Four, was allowed outside their locked-down

units and enclosed recreation areas without wearing chains or restraints and

escorted by guards. The small, enclosed recreation area serving Secured Unit One

– North and South, was encased in razor wire. Access to the recreation areas was

strictly limited.

87. Fifth, SOTEP staff pit SDIs against one another. Although, on paper,

the SOTEP program appears to operate as a program overseen and administered by

qualified professionals, its actual implementation and administration is much

different. Few of the treatment therapists have the requisite qualifications for their

jobs. Instead, they rely on a system of berating and belittling SDIs who fail to

disclose ever greater and more lurid stories of sexual misbehavior. Several SDIs

complain that staff expects them to make up material to show that they are truly


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demented persons, acknowledge their evil, accept responsibility, empathize with

imaginary victims, and repent their sexual misbehaviors – real or invented – over

and over again. To save money, SOTEP relies solely on group therapy, where

other SDIs decide whether an SDI can advance to another level of treatment or be

reassigned to a less restrictive housing unit.

88. Sixth, following the Rodriguez case, NDSH devised a method of

curtailing court intervention to secure the release of SDIs, thereby ensuring that

the state’s policy of preventative detention was implemented through

indeterminate incarceration. To achieve that objective, NDSH employed,

instructed, and rewarded “evaluators” to write recommendations that preclude the

release of SDIs by state courts. If an evaluator could write a report that painted

each SDI as a high risk of reoffending, few elected state judges had the stomach

for ordering their release. NDSH implemented this system through various means.

a. First, it employed evaluators who – though qualified on paper –

lacked many other job alternatives. It paid them poorly and overworked

them.

b. Second, NDSH controlled what evaluators wrote, emphasizing the

SDI law’s relaxed standard – “likely to engage” over the lifetime of the SDI.

c. Third, NDSH diffused responsibility. It was the judge, not the


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evaluator, who had the responsibility for unraveling the meaning of the

“likely to engage” standard. These standards embraced policy and legal

issues for judges, not evaluators, to address. Evaluators became advocates

for incarceration in an adversarial system.

d. Fourth, NDSH emphasized the harm to the program – and individual

evaluators – if they got an evaluation wrong, releasing an SDI who

reoffended.

89. The evaluator reports reflect many of these pressures. The reports are

typically products of cutting and pasting from prior reports. Updated research and

methodologies in the field of SDI treatment and evaluation are ignored. Staff

notes – usually from therapy teams regarding an SDI’s misbehavior – are

highlighted, even though research shows that treatment staffs’ evaluations are the

least reliable indicators of an SDI’s propensity to reoffend. Even if the science

applied by evaluators were correct, the factual basis of each report is highly

suspect. Taken as a whole, few if any of these evaluator reports could withstand a


Daubert


challenge, failing to meet the standards for admissibility under Federal

Rules of Evidence 702-705.

90. Finally, to convert the SOTEP program into a penal facility,

implementing the state policy of preventative detention, NDSH had to exclude


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other treatment alternatives. Regardless of an SDI’s risk profile, there is only one

means and location of treatment following his civil commitment: The Secured

Unit at NDSH, the most restrictive environment that NDSH could create. In their

reports, SDI evaluators repeatedly describe NDSH’s SOTEP program as operated

in “one of the most secure treatment settings available.” Less restrictive

environments, community placement, modified probation systems – each cheaper,

available, and of equal or superior therapeutic efficacy for certain SDIs – are not

permitted as placements under the SOTEP system.


F. Experiences of Individual SDIs in the SOTEP.



91. Each plaintiff and Class member has been subject to the unlawful

practices described in this first amended complaint. Descriptions of some of the

plaintiffs’ personal experiences further illustrate the class allegations.

92. William Carter, 27, was convicted in 2004 of gross sexual imposition

and sentenced to state prison. While incarcerated at DOCR’s James River

Correctional Center (“JRCC”), he attended sex offender treatment, but did not

complete the course of treatment. Carter served his sentence, subject to further

probation, and was scheduled for release from JRCC on September 29, 2006.

During his prison sentence, DOCR did not advise Carter that he was being

assessed for referral by DOCR to a state attorney for possible civil commitment as


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an SDI. Instead, two days before his scheduled release from JRCC, his prison

counselor informed Carter that on the date of his release, a sheriff’s deputy would

transport Carter to Stutsman County jail where he would be incarcerated until the

district court disposed of the state’s attorney’s petition to refer him for an SDI

evaluation.

93. The following day, a deputy sheriff detained Carter, transporting him

in handcuffs and a belly chain to the Stutsman County jail, where he was

incarcerated until October 5, 2006, when the district court granted the petition to

refer Carter for an SDI evaluation. No testimony was taken by the district court

before granting the petition.

94. Carter arrived at NDSH on the same date as his referral hearing.

NDSH held Carter in Secured Unit One North, where he was stripped of his

property and confined to a locked unit for more than 23 hours per day, except for a

brief period outside in a small enclosed yard area. NDSH psychologist Joseph

Belanger evaluated Carter, recommending his commitment as an SDI. Based on

representations by SOTEP staff, Carter believed that NDSH’s Sex Offender

Treatment and Evaluation Program would provide him with prompt, effective and

meaningful treatment, and decided to waive his right to a commitment hearing. In

January 2007, Carter was committed to NDSH as an SDI.


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95. For more than one year, NDSH incarcerated Carter in Secured Unit

One North, where he was deprived of access to educational programming, work

placement, and his personal property. NDSH restricted his access to

communication, limiting his telephone and mail privileges, and his freedom of

movement, holding him in the Secured Unit One for more than 23 hours per day.

96. Carter diligently tried to comport with SOTEP’s regulations. By

early 2008, he had promoted to Secured Unit Two and then quickly transferred to

Unit Three, where he gained access to a few hours of employment and some

additional recreation time outside his secured unit in a larger outdoor enclosure.

But his conditions of confinement were far more punitive than those experienced

by Carter while imprisoned at JRCC. He lacked the employment, recreational, and

educational opportunities and commissary privileges provided to him as a JRCC

inmate. He had no access to a law library. NDSH transported Carter in chains

when outside the secured housing unit and its recreation area. His property was

arbitrarily confiscated and its use – such as TV – was strictly regulated.

97. By 2010, Carter promoted to SOTEP Stage Two and transferred to

Secured Unit Four. But compliance with NDSH’s Stage II treatment program

depends on an SDI’s ability to communicate verbally in group and in writing.

Carter was intellectually unable to keep up with the Stage Two treatment


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curriculum and, as a result, he was transferred back to Secured Unit Three and

demoted to the Skills treatment track. With that transfer and demotion, Carter was

again stripped of most of his personal property, which was routinely subject to

arbitrary confiscation by staff. Despite these set backs, by 2013, Carter promoted

to Skills III-Level 1.

98. Since 2006, NDSH has failed or refused to provide any treatment

alternatives to Carter other than his continued incarceration at the Secured Unit at

NDSH.

99. Ryan Corman, 54, was convicted in 2008 for contributing the

delinquency of a minor and sentenced to probation with treatment by Rule CPC,

the Sex Offender Management and Treatment Program operated by Counseling &

Psychotherapy Center. Corman violated his probation by failing to register as a

sex offender and was remanded to DOCR and imprisoned at JRCC. He was

scheduled for release from JRCC on August 28, 2012. During his prison sentence,

DOCR did not advise Corman that he was being assessed for referral by DOCR to

a state attorney for possible civil commitment as an SDI. Instead, the day before

his scheduled release from JRCC, his prison counselor informed Corman that on

the day of his release from prison a sheriff’s deputy would transport Corman to

Grand Forks jail where he would be incarcerated until the district court disposed


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of the state attorney’s petition to refer him for an SDI evaluation.

100. The following day, a deputy sheriff detained Corman, transporting

him in handcuffs and a belly chain to Grand Forks jail. The next day, he appeared

in district court, which granted the petition to refer Corman for an SDI evaluation.

No testimony was taken by the district court before granting the petition.

101. Corman arrived at NDSH on August 30, 2012 and held in Secured

Unit North. NDSH psychologist Lynne Sullivan evaluated Corman,

recommending his commitment as an SDI. Corman remained incarcerated at

NDSH under evaluation status for more than seven months until his commitment

hearing in April 10, 2013, when he was determined to be an SDI. Corman

appealed his commitment order.

102. During his incarceration at NDSH, Corman has been deprived of

access to educational programming, work placement, and his personal property.

His access to communication has been limited as well as his freedom of

movement. He is not permitted to travel outside his secured housing unit or

recreation enclosure, unless in chains and accompanied by NDSH guards.

Corman’s conditions of confinement are far more punitive than those experienced

by Corman while imprisoned at JRCC. He lacks most of the employment,

recreational, and educational opportunities and commissary privileges provided to


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him as a JRCC inmate. He has no access to a law library. His property is

arbitrarily confiscated and its use is strictly regulated. When Corman objected to

his conditions of confinement, SOTEP staff labeled his objections as “countertherapeutic”

and, as a result, NDSH transferred him from Secured Unit One North

to Secured Unit One South, the most restrictive housing unit operated by NDSH.

103. Secured Unit One South provides housing that is more austere and

punitive than that found in any general population cell maintained by DOCR.

The windows have bars. All personal property is confiscated, including most

clothing. NDSH furnishes the cells with a bed bolted to the floor.

Communications are strictly monitored and limited by NDSH, including legal

mail. At staff discretion, SDIs housed in Secured Unit North and Secured Unit

South are permitted out of their units for less than one hour per day for recreation

in a small, enclosed courtyard, fenced with razor wire and lacking facilities.

104. NDSH’s two SOTEP treatment tracks do not differentiate SDIs by the

nature or severity of the SDI’s underlying sexual offense and all treatment is

implemented solely through group therapy. For example, at SOTEP Stage I,

Corman is subject to the same group treatment regime as an SDI who was

incarcerated at NDSH following a conviction for gross sexual imposition.

105. Corman’s experience is similar to most other SDIs and NDSH. Since


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no SDI graduates from the SOTEP program, a sense of futility pervades. To

lengthen an SDI’s period of incarceration, NDSH staff requires that each SDI

repeat the same treatment assignment over and over again. NDSH encourages

SOTEP staff to impose arbitrary and unwritten rules, the violation of which result

in loss of privileges and, in some cases, demotion to a lower treatment level,

requiring the SDI to restart his treatment program, repeating the same treatment

tasks over yet again.

106. Corman’s observations of SOTEP program mirror those of other

SDIs. At various times, SOTEP staff, by conduct and words, communicate to

SDIs that the purpose of North Dakota’s SOTEP program is preventative

detention.

107. While incarcerated at NDSH, Corman has protested his conditions of

confinement, among other things, filing a series of pro se complaints with the

North Dakota federal district court. In response, NDSH staff has retaliated against

Corman, labeling the exercise of his legal rights as “counter-therapeutic,” which

threatens any prospect that he will receive a favorable evaluation that could

support his petition for release. Corman’s experience is shared by other SDIs.

SOTEP staff tell SDIs that challenging the program or “lawyering up” is “countertherapeutic,”

and encourages other SDIs, hoping to garner favor with staff, to lash


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out in group sessions at SDIs, including plaintiffs in this action, who file court

actions trying to change the SOTEP system.

108. Since 2012, NDSH has failed or refused to offer any treatment

alternatives to Corman other than his continued incarceration at the Secured Unit

at NDSH.

109. Dustin Dean, 33, was convicted in 2007 of gross sexual imposition

and sentenced to state prison. While incarcerated by the DOCR, he attended and

completed sex offender treatment. Dean served his sentence, subject to probation,

and was scheduled for release from the North Dakota State Penitentiary (“NDSP”)

in September 2010. During his prison sentence, DOCR did not advise Dean that

he was being assessed for referral by DOCR to a state’s attorney for possible civil

commitment as an SDI. Instead, Dean, acting on his own, wrote a letter stating

that he believed that he would benefit from more sex offender treatment. On the

day of his release from NDSP, prison officials told Dean that he was free to go,

having completed his prison term. Before he was released, however, a deputy

sheriff detained Dean transporting him in chains to Morton County for a hearing to

decide the state’s attorney’s petition to refer Dean for an SDI evaluation. The

petition was granted.

110. Dean arrived at NDSH on October 28, 2010. NDSH held Dean in


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Secured Unit North. NDSH psychologist Robert Lasota evaluated Dean,

recommending his commitment as an SDI. After an evaluation period of more

than 60 days, Dean was committed as an SDI in 2011.

111. Dean diligently pursued his treatment. He succeeded in progress

through part of the Stage I curriculum, but was demoted to Skills I, the

introductory treatment module for all SDIs. Although none of Dean’s diagnoses

create a high degree of risk for reoffending, NDSH continues to recommend his

incarceration for failure to comply with SOTEP rules. SOTEP documents show

that the duration of an SDI’s incarceration at the NDSH depends – not on progress

in treatment – but instead on the ability of an SDI to comply with arbitrary and

often unwritten staff rules, randomly enforced. SOTEP documents indicate that

compliance with arbitrary staff rules – not progress through treatment – is the

central determinant of the character and tone of an SDI’s annual evaluation.

Since SOTEP treatment staff are seldom qualified, their assessments are based

largely on rule compliance as opposed to treatment progress.

112. By 2013, Dean had reach a point hopelessness, coming to terms with

the realization that the SOTEP program imposed an indefinite term of

incarceration. Assessment of his SDI status depended less on his treatment

progress and more on the duration of his incarceration, a commonly held belief


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among SDIs at NDSH and reflected in SOTEP documents. But the longer an SDI

remains incarcerated at NDSH, the greater the possibility of violating an arbitrary

rule imposed by staff, resulting in further incarceration. At various times, SDIs

give up: After years of indefinite incarceration, they stop trying to make progress

and start acting out sexually, defying staff, and failing to comply. Dean’s

frustration is reflected in the simplicity of his paramount demand for improving

the SOTEP program: Posting written rules so that SDIs know what is expected of

them.

113. Since 2010, NDSH has failed or refused to provide any treatment

alternatives to Dean other than his continued incarceration at the Secured Unit at

NDSH.

114. Gerald DeCoteau, 51, was convicted in 1994 of gross sexual

imposition and sentenced to ten years in state prison, followed by two years of

probation. While incarcerated by the DOCR, he sought sex offender treatment,

but was denied on the basis that he had too much time on his sentence. DeCoteau

served his sentence and was scheduled for release from NDSP on March 11, 2004.

During his prison sentence, DOCR did not advise DeCoteau that he was being

assessed for referral by DOCR to a state’s attorney for possible civil commitment

as an SDI. Instead, one week before his scheduled release from NDSP, DeCoteau


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received a letter advising him that he would be detained pending a hearing on a

state’s attorney’s petition for possible civil commitment. The next day he was

transported to Morton County, where the district court granted the petition to refer

him for an SDI evaluation.

115. DeCoteau arrived at NDSH in 2004. NDSH held DeCoteau in

Secured Unit North. NDSH psychologist Joseph Belanger evaluated DeCoteau,

recommending his commitment as an SDI.

116. DeCoteau protested his referral and the conditions of his

confinement. NDSH continued to incarcerate DeCoteau in its most restrictive

housing unit while he was under evaluation. More than three years passed before

DeCoteau was afforded a hearing on his commitment. At that hearing, the district

court committed DeCoteau to NDSH as an SDI.

117. DeCoteau has vigorously protested his incarceration at NDSH. As a

result, SOTEP staff have jailed him for years in Secured Unit One South, the most

restrictive housing unit at NDSH. DeCoteau spends more than 23 hours per day in

his unit. He is denied his personal property; most of his clothing has been

confiscated. His communication with anyone except SDIs housed in his unit is

strictly limited. His communications with other SDIs on his unit are constantly

monitored. He has no access to a law library, employment, educational or


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recreational activities. His cell is searched on a regular basis. SOTEP staff have

seized his personal papers, including doctors’ notes and newspaper clippings,

declaring them contraband and citing DeCoteau for a “major” rule infraction.

When he questions staff’s conduct, he is deemed disrespectful and cited for a

major violation of rules. His incarceration at NDSH is more punitive than his

incarceration at NDSP.

118. Because DeCoteau refused to confess to crimes for which he was not

convicted or charged and disputes the charges underlying his plea bargains,

SOTEP staff deem that he has failed or refused treatment. After nearly ten years

of incarceration at NDSH for treatment, DeCoteau is presently at Skills Level 1,

the introductory treatment level, and housed in a cell that is more Spartan and with

fewer services, facilities and privileges than he was afforded as a convicted felon

serving prison time at NDSP.

119. Since 2004, NDSH has failed or refused to provide any treatment

alternatives to DeCoteau other than his continued incarceration at the Secured

Unit at NDSH.

120. Mathew Graham, 25, has never been convicted of a sex offense as an

adult. NDSH records describe his case as “rather unusual in that he has only one

sexual adjudication.” When Graham was 14, “he exposed himself in a grocery


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store bathroom” to a five-year old boy whom he also kissed. At some point he

was transferred to the Youth Correctional Center (“YCC”). Prior to his release at

age 18, the YCC notified Graham that he would be referred to NDSH for an

evaluation as an SDI. Graham waived his right to hearing and arrived at NDSH

for an SDI evaluation on February 27, 2007.

121. NDSH held Graham in Secured Unit North. NDSH psychologist

Lynne Sullivan evaluated Graham, recommending his commitment as an SDI.

Graham was not evaluated using any actuarial analysis because “Graham has not

been convicted of a sexual offense as an adult, the adult actuarial instruments

cannot be utilized.” NDSH staff told Graham, then 18, that he could benefit from

SDI treatment, and Graham waived his right to a commitment hearing.

122. Since 2007, Graham has bounced between Secured Unit One South

and Secured Unit Three. He started on Stage I treatment and then was demoted to

Skills I. He was transferred to Secured Unit Three, and assigned to the SOTEP

Skills curriculum. After seven years of incarceration at NDSH, he completed

treatment to Skills III - Level I. Despite his progress, SOTEP staff has continually

recommended his continued incarceration at NDSH. The principal basis for this

recommendation, based on a review of Graham’s records, is Graham’s

condescending attitude toward SOTEP staff and belief that he is smarter than his


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fellow SDIs.

123. Since 2007, NDSH has failed or refused to provide any treatment

alternatives to Graham other than his continued incarceration at the Secured Unit

at NDSH.

124. Terry Greak, 56, was convicted in 2000 of corruption of a minor and

sentenced to state prison. While incarcerated by the DOCR, he attended sex

offender treatment. Greak served his sentence, subject to probation, and was

scheduled from release from NDSP on January 2, 2005. During his prison

sentence, DOCR did not advise Greak that he was being assessed for referral by

DOCR to a state’s attorney for possible civil commitment as an SDI. Instead,

on the day of his release from NDSP, he was detained by a sheriff’s deputy and

transported to the county jail in Bismarck. He does not recall whether he attended

a hearing regarding his referral to NDSH for an SDI evaluation.

125. Greak arrived at NDSH on February 7, 2005. NDSH held Greak in

Secured Unit North. NDSH psychologist Joseph Belanger evaluated Greak,

recommending his commitment as an SDI. Greak’s commitment hearing was

delayed for months during which time he remained incarcerated in Secured Unit

One North.

126. After more than ten years of treatment at NDSH, Greak has


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progressed no further than Stage I. He has been transferred by SOTEP staff back

and forth between Secured Unit One and Secured Unit Two, depending on their

assessment of his attitude. Regardless of his unit assignment, Greak has

experienced a substantial reduction in services, facilities and privilege at NDSH in

comparison with the services, facilities and privilege provided him as a convicted

felon serving his prison sentence at NDSP. He cannot leave his unit or its

recreation area unless in chains. He has no access to a law library. His work

hours, commissary privileges, permitted property and freedom of movement is far

more restricted at NDSH than it was at NDSP. Most disconcerting is the arbitrary

and punitive attitude of SOTEP staff. Few of the therapists are certified, yet their

staff notes – riddled mostly with complaints about minor infractions and

ambiguous observations – form a significant part of the basis for NDSH’s

continued recommendation to incarcerate Greak as an SDI.

127. Since 2005, NDSH has failed or refused to provide any treatment

alternatives to Greak other than his continued incarceration at the Secured Unit at

NDSH.

128. Glen Halton, 39, was convicted in 2000 of corruption of a minor and

sentenced to state prison. While incarcerated by the DOCR, he attended sex

offender treatment. Halton was scheduled for release from NDSP on March 2,


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2004. A few days before his release, Halton received a letter from his prison

counselor stating that he would be detained by a sheriff’s deputy and transported

to the Ward County jail for a hearing on his referral for an SDI evaluation. During

his prison sentence, DOCR did not advise Halton that he was being assessed for

referral by DOCR to a state’s attorney for possible civil commitment as an SDI.

At his referral hearing, the district court ordered Halton to be detained at NDSH

for evaluation as an SDI. No one testified at that hearing.

129. Halton arrived at NDSH on March 2, 2004, and was held in Secured

Unit One North. NDSH psychologist Joseph Belanger evaluated Halton,

recommending his commitment as an SDI. Halton’s commitment hearing was

delayed until October 2004 during which time he remained incarcerated in

Secured Unit One North, stripped of his personal property, limited in his freedom

of movement and subjected to arbitrary search. At his commitment hearing, the

district court determined that Halton was an SDI and remanded him back to

NDSH.

130. Halton diligently pursued treatment. Over the next 8 years, he

managed to obtain transfer to Secured Unit Four, but received several behavioral

write ups, and was demoted back to Secured Unit Two and Stage I in treatment.

Most of his behavioral violation stemmed from SOTEP’s restriction on possession


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of personal property. His citations included, for example, a search revealing that

Halton possessed “contraband” in the form of “dental floss, old forms, chocolate

syrup, Q-Tips,” and “for having a list of addresses (presumed to be internet

addresses although not specified) titled Brenda’s Hot List,” though there is no

internet access at the SDI unit at NDSH.

131. Since 2005, NDSH has failed or refused to provide any treatment

alternatives to Halton other than his continued incarceration at the Secured Unit at

NDSH.

132. Robert Hoff, 39, was convicted in 2004 of gross sexual imposition,

given a suspended sentence and placed on probation. His probation was revoked

based on a report that he had followed an adult female and her son, that he had

been in the presence of a minor without supervision, and for failing to pay

supervision fees. It is unclear how Hoff was referred to the state’s attorney in

Bismarck for possible civil commitment. Hoff recalls that the waived his right to a

hearing.

133. Hoff arrived at NDSH on August 16, 2005. NDSH held Hoff in

Secured Unit North. NDSH psychologist Lincoln Combs evaluated Hoff,

recommending his commitment as an SDI. On January 6, 2006, the district court

committed Hoff to NDSH as an SDI.


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134. For more than one year, NDSH incarcerated Hoff in Secured Unit

One North, where he was deprived of access to educational programming, work

placement, and his personal property. NDSH restricted his access to

communication, limiting his telephone and mail privileges, and his freedom of

movement, holding him in the Secured Unit One more than 23 hours per day.

135. Hoff has struggled to comply with SOTEP procedures. He resents his

incarceration at NDSH. “This is supposed to be for the most dangerous of most

dangerous. I committed an offense, I was doing counseling, and because of

Rodriguez, here I sit.” Because of his unwillingness to accept his placement at

NDSH as an SDI, SOTEP staff has refused to promote him in treatment. Unable

to point to any major rule violations, SOTEP staff justifies its position by accusing

Hoff of “sarcastic, passive aggressive, and demeaning towards others.” They

brand him as “misogynistic,” based on the assertion that he does not “make eye

contact with or interact with female staff.” Based on these behaviors, SOTEP staff

demoted Hoff to Secure Unit One South, stripping him of his limited hours of

work, denying him access to his personal property, limiting his freedom of

movement, and confining him to his unit more than 23 hours per day. After seven

years of incarceration at NDSH, Hoff has been able to advance only to Secured

Unit Two and Stage I in treatment.


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136. Since 2005, NDSH has failed or refused to provide any treatment

alternatives to Hoff other than his continued incarceration at the Secured Unit at

NDSH.

137. Monte Hojian, 44, was convicted in 1997 of gross sexual imposition

and sentenced to state prison. While incarcerated by the DOCR, he attended sex

offender treatment, but completed only the educational component of the course of

treatment. Hojian served his sentence, subject probation, and was scheduled from

release from NDSP in April 2006. During his prison sentence, DOCR did not

advise Hojian that he was being assessed for referral by DOCR to a state’s

attorney for possible civil commitment as an SDI. Instead, the day before his

scheduled release, Hojian was called into the captain’s office and told he would be

detained for the purpose of a hearing for possible civil commitment. Hojian was

transport to Burleigh County Jail where he was held for one to two weeks. He

does not recall his hearing for referral for an SDI evaluation.

138. Hojian arrived at NDSH on May 4, 2006. NDSH held Hojian in

Secured Unit North. NDSH psychologist Joseph Belanger evaluated Hojian,

recommending his commitment as an SDI. Hojian’s commitment hearing

occurred nine months later, and the district court order his commitment at NDSH

as an SDI.


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139. For more than one year, NDSH incarcerated Hojian in Secured Unit

One North, where he was deprived of access to educational programming, work

placement, and his personal property. NDSH restricted his access to

communication, limiting his telephone and mail privileges, and his freedom of

movement, holding him in the Secured Unit One more than 23 hours per day.

140. Over the past seven years, Hojian avoided numerous citations for

major rule infractions, and was able to promote to Secured Unit Two, where he

gained access to a few hours of employment and an additional hour of time outside

his secured housing unit in a larger outdoor enclosure. Nonetheless, he has been

unable to promote to Stage II treatment. Throughout his incarceration at NDSH,

the conditions of confinement have been far more punitive than those experienced

by Hojian while imprisoned at NDSP. He lacks most of the employment,

recreational, and educational opportunities and commissary privileges provided to

him as an NDSP inmate. He has no access to a law library.

141. Since 2006, NDSH has failed or refused to provide any treatment

alternatives to Hojian other than his continued incarceration at the Secured Unit at

NDSH.

142. Rodney Ireland, 28, has never been convicted of a sex offense as an

adult. His referral to NDSH was unusual. In 2002, Ireland, then 18, was released


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from Montana’s Youth Authority. He moved to Wahpeton, where he had a

scholarship to attend college. Following the Rodriguez arrest, the college evicted

him from campus. Homeless, young and branded a sex offender, Ireland criscrossed

the state, traveling as far as Bismarck looking for housing where he could

receive his student aid monies and enroll in college. He tried to join the Army.

He landed in Bismarck, having run out of options. There, with the help of a

homeless advocate he composed a letter to a state district judge, explaining his

situation and asking for help. He was then detained in the Burleigh County jail

and, after waiving the referral hearing, he arrived at NDSH on September 3, 2003.

143. NDSH held Ireland in Secured Unit North, which at the time was a

mixed population transition area, where SDIs and non-SDI referrals to NDSH

were housed and evaluated. NDSH psychologist Joseph Belanger evaluated

Ireland, recommending his commitment as an SDI. Ireland waived his

commitment hearing, and was assigned to housing in an area that later became

known as Secured Unit One South. He was the thirteenth SDI committed to

NDSH.

144. For more than a decade, Ireland has bounced between various

housing units and stages of treatment. He has observed and been subjected to the

conversion of the Secured Unit at NDSH into a penal facility as described above.


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145. Since 2003, NDSH has failed or refused to provide any treatment

alternatives to Ireland other than his continued incarceration at the Secured Unit at

NDSH.


VI. DEFENDANTS’ POLICIES VIOLATE THE CONSTITUTIONAL AND

STATUTORY RIGHTS OF PLAINTIFFS AND THE CLASS



146. The Due Process Clause of the Fourteenth Amendment requires that

civilly committed persons not be subjected to conditions that amount to

punishment. Due process requires that the conditions and duration of confinement

for civilly confined persons be necessary to serve the purpose for which they are

committed. Plaintiffs and the Class are subject to incarceration that amounts to

punishment. They are confined in conditions and for periods of time that bear no

reasonable relationship to the purpose of their commitment. Thus, defendants

violate the due process rights of plaintiffs and the Class.

147. The Equal Protection Clause of the Fourteenth Amendment requires

that civilly committed persons not be deprived of the equal protection of the laws.

SDIs are entitled to be treated in the same manner as other civilly committed

persons. SDIs are treated in an unequal manner, deprived of the equal protections

of laws, because of their status as a hated minority of offenders. Thus, defendants

violate the equal protection rights of plaintiffs and the Class.


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148. The First Amendment protects speech, protest, association, and

receipt of information. SDIs are deprived of their First Amendment rights and

punished for exercising them. Thus, defendants violate the First Amendment

rights of plaintiffs and the Class.

149. The Fourth Amendment protects persons from unreasonable search

and seizure. The persons, property and privacy of SDIs are unreasonably invaded

and infringed by defendants. Thus, defendants violate the Fourth Amendment

rights of plaintiffs and the Class.

150. The Sixth Amendment entitles a person to trial by jury as a condition

of imposing a punitive sentence of incarceration. SDIs are sentenced to

indeterminate incarceration in prison conditions operated and maintained by

defendants. Thus, defendants violate the Sixth Amendment rights of plaintiffs and

the Class by continuing to incarcerate plaintiffs and the class.

151. The Eighth Amendment bars cruel and unusual punishment. The

indeterminate confinement of SDI’s in the most restrictive, prison-like conditions

without effective treatment is penal and amounts to cruel and unusual punishment.

Thus, defendants violate the Eighth Amendment rights of plaintiffs and the Class.

//

//


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VII. CLAIMS

A. First Claim

[42 U.S.C. § 1983]



152. Plaintiffs reallege and incorporate by reference each paragraph

previously alleged in this first amended complaint.

153. Defendants injured plaintiffs and the Class by depriving them of

rights and freedoms guaranteed and protected by the First, Fourth, Sixth, Eighth

and Fourteenth Amendments to the United States Constitution in violation of the

Civil Rights Act of 1871, 42 U.S.C. § 1983.


B. Second Claim

[42 U.S.C. § 1985(3)]



154. Plaintiffs reallege and incorporate by reference each paragraph

previously alleged in this first amended complaint.

53. Defendants injured plaintiffs and the Class by conspiring with other

persons to deprive plaintiffs and the class of the equal protection of the laws, or of

equal privileges and immunities under the laws, in violation of the Civil Rights

Act of 1871, 42 U.S.C. § 1985(3).

//

//


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C. Third Claim

[42 U.S.C. § 1986]



155. Plaintiffs reallege and incorporate by reference each paragraph

previously alleged in this first amended complaint.

156. Defendants injured plaintiffs and the Class by failing, refusing or

neglecting to prevent the deprivation of their rights to equal protection of laws in

violation of the Civil Rights Act of 1871, 42 U.S.C. § 1986.


VIII. RELIEF



Accordingly, plaintiffs, on behalf of themselves and the Class, pray for a

judgment that:

1. Certifies the class pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2);

2. Declares that defendants act unlawfully in violation of the First,

Fourth, Sixth, Eighth and Fourteenth Amendments pursuant to 42 U.S.C. §§ 1983,

1985(3) and 1986 and Fed. R. Civ. P. 57;

3. Enters temporary, preliminary and permanent injunctions enjoining

defendants, their officials, employees, co-conspirators, agents, attorneys, and all

persons in active concert or participating with any one of them from enforcing

policies, practices or procedures that violate the First, Fourth, Sixth, Eighth and

Fourteenth Amendments of the United States Constitution, pursuant to 42 U.S.C.


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§§ 1983, 1985(3) and 1986 and Fed. R. Civ. P. 65;

4. Enters affirmative injunctive relief requiring defendants, their

officials, employees, co-conspirators, agents, attorneys, and all persons in active

concert or participating with any one of them to undertake affirmative policies,

practices and procedures that redress their violations of the First, Fourth, Sixth,

Eighth and Fourteenth Amendments of the United States Constitution, pursuant to

42 U.S.C. §§ 1983, 1985(3) and 1986 and Fed. R. Civ. P. 65;

5. That awards plaintiffs and the Class their attorneys’ fees, costs, and

expenses; and,

6. That awards any other relief deemed just and appropriate.

Dated: October 31, 2013.

Respectfully submitted,

FREMSTAD LAW FIRM

BRANCART & BRANCART


/s/ Christopher Brancart



__________________________

Christopher Brancart (ND06170)

cbrancart@brancart.com

Post Office Box 686

Pescadero, CA 94060

Tel: (650) 879-0141

Fax: (650) 879-1103


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