United States District Court, D. Kansas
HERBERT J. BEYER, Plaintiff,
AUSTIN DESLAURIERS, et al., Defendants.
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
matter is before the Court on a Motion to Dismiss filed by
the defendants in this matter (ECF No. 17). Plaintiff has
filed a response (ECF No. 19). For the reasons set forth
below, Defendants' motion is granted.
Beyer was convicted of a sexual offense in Wisconsin in 1986
and sentenced to serve ten (10) years. On May 15, 1987, Mr.
Beyer was sentenced under a plea agreement in Sedgwick
County, Kansas, to 5 to 10 years on one count of indecent
liberties with a child and 5 to 20 years on one count of
aggravated sodomy. The judge stated at the sentencing hearing
that the Kansas sentences would “run consecutive one
with the other” but “run concurrent with
[Plaintiff's] Wisconsin time.” ECF No. 5 at 8.
According to Plaintiff, the judge also stated, “My
intent is that you go serve your Wisconsin time. When they
release you, you're released.” Id. Mr.
Beyer was returned to Wisconsin, where he was released on
parole two years later, on April 20, 1989. He was immediately
turned over to the custody of the Kansas Department of
Corrections on a detainer. He remained incarcerated in Kansas
until February 11, 2002, at which point he was civilly
committed under the Kansas Sexually Violent Predator Act
(KSVPA), K.S.A. § 59-29a01, et seq. He remains
in the custody of the Kansas Department for Aging and
Disability Services as a resident in the Sexual Predator
Treatment Program (SPTP) at Larned State Hospital.
complains of the inadequacy of the SPTP. Plaintiff alleges
the annual examinations of his mental condition mandated by
the KSVPA to determine if he may be released have been
perfunctory and ineffective. ECF No. 5 at 8. He further
alleges the treatment he has received has been inadequate. He
receives 1½ hours of group therapy per week and, at
most, one individual therapy session per month. Plaintiff
states there are seven therapists for over 257 SPTP
residents, only one of whom is licensed while the other six
are interns or doctoral students. Also, Mr. Beyer asserts
that Defendants have failed to provide qualified educational
counselors with a degree and specific training in the
class/subject they are teaching. ECF No. 5 at 4. Plaintiff
further states he “has suffered and will continue to
suffer irreparable mental and emotional injury” as a
result of the treatment inadequacies (ECF No. 5 at 9) and is
deprived of a “realistic opportunity to progress
through the program.” ECF No. 5 at 4. Moreover, Mr.
Beyer alleges that the grievance procedure in the SPTP is a
“sham, ” and his grievances are “almost
never given serious consideration.” ECF No. 5 at 10.
Beyer names Tim Keck, Secretary of the Kansas Department for
Aging and Disability; Michael Dixon, Administrator of the
SPTP; Austin DesLauriers, Clinical Program Director of the
SPTP; and Bill Rein, Superintendent of Larned State Hospital,
as defendants. He brings five counts against these
defendants. Count I alleges Defendants violated his
Fourteenth Amendment due process rights by depriving him of
adequate treatment to give him the opportunity to regain his
freedom. Count II alleges the same defendants violated his
right under the Eight Amendment to be free from cruel and
unusual punishment by confining him in Kansas when he should
have been released at the conclusion of his Wisconsin
sentence. Count III appears to be the same as Count I,
alleging the same defendants violated Plaintiff's right
to “adequate treatment and civil rights of civilly
committed persons” under the Fourteenth Amendment.
Count IV alleges the defendants violated “court ordered
treatment under K.S.A. § 59-29a01 through K.S.A. §
59-29a24, ” again based on the inadequacy of the
treatment program. Count V alleges Plaintiff's civil
commitment violates the Double Jeopardy clause of the Fifth
requests relief in the form of immediate release from the
SPTP program, as well as actual, nominal, compensatory, and
to Dismiss (ECF No. 17)
argue Plaintiff fails to allege facts showing he receives
treatment so inadequate that it constitutes a substantial
departure from accepted professional judgment or shocks the
conscience, as required to state a constitutional violation.
Rather, Defendants point out that Plaintiff's allegations
show he is in fact receiving treatment, though he complains
of the amount and the practitioners providing the treatment,
and that his allegations fail to overcome a presumption of
validity attached to the professional judgment of treatment
providers. Defendants point out a recent Eighth Circuit case,
Karsjens v. Piper, 845 F.3d 394 (8th Cir.
2017), rejected a similar challenge to Minnesota's sexual
predator treatment program, which has no annual review of
those involuntarily committed to the program and has had no
one successfully complete the program and be released.
Defendants argue Plaintiff's complaint contains no
allegations of egregious, malicious, or sadistic conduct to
satisfy the “shocks the conscience” standard for
a due process violation.
Plaintiff's Eighth Amendment and Double Jeopardy counts,
Defendants argue it is well-settled that the KSVPA is not
government-imposed punishment, and the Act has a legitimate
nonpunitive governmental objective to protect the public
(citing Kansas v. Hendricks, 521 U.S. 346, 363
survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain ‘enough facts to state a claim to relief
that is plausible on its face.'” Schrock v.
Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). When applying this
standard, a court must accept as true all well-pleaded
factual allegations and then ask whether those facts state a
plausible claim for relief. See Id. at 679. Viewing
the complaint in this manner, the Court must decide whether
the plaintiff's allegations give rise to more than
speculative possibilities. Id. “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not ‘show[n]'-‘that the
pleader is entitled to relief.'” Id.
(quoting Fed.R.Civ.P. 8(a)(2)).