Willis v. Palmer (175 F. Supp. 3d 1081, 2016)

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

MARK W. BENNETT, U.S. DISTRICT COURT, JUDGE NORTHERN DISTRICT OF IOWA

TABLE OF CONTENTS

I. INTRODUCTION.. .1085

A. Procedural History ... 1085

B. Factual Findings... 1087

1. Civil commitment generally... 1087

2. The treatment process... 1089

3. Defendants... 1092

4. Defendants’ deposition testimony... 1098

5. Plaintiffs... 1094

6. Relief... 1097

II. LEGAL ANALYSIS.. .1097

A. Issues...1097

B. Summary Judgment Standard. . .1097

C. Younger Abstention.. .1099

1. Standard... 1099

2. Analysis... 1099

D. Colorado River Abstention... 1101

1. Standard.. .1101

2. Analysis... 1101

E. Heckv. Humprey.. .1102

1. The standard... 1102

2. Analysis... 1103

F. Is CCUSO Constitutional?... 1106

1. Treatment program... 1106

2. Punitive as applied... 1110

3. Least restrictive alternative... 1111

G. Qualified Immunity... 1112

H. Personal Responsibility... 1113

I. Contract Claims... 1114

J. Money Damages... 1114

III.CONCLUSION... 1115

“Relax,” said the night man,

“We are programmed to receive.

You can check-out any time you like, But you can never leave!”

Like the unlucky guest at the eponymous hotel, the plaintiffs, long-term patients at the Civil Commitment Unit for Sexual Offenders (CCUSO) in Cherokee, Iowa, filed this lawsuit arguing that their constitutional rights have been violated because defendants have created a treatment system where the plaintiffs may check-out anytime they want, but they may never leave.

I. INTRODUCTION

A. Procedural History

Currently before me is a motion for summary judgment, filed by the defendants, requesting that I dismiss plaintiffs’ 42 U.S.C. § 1983 lawsuit, (docket no. .71). In their motion for summary judgment, the defendants rely on various legal doctrines to argue that plaintiffs’ confinement comports with constitutional standards and their current federal claims are barred.

The patients at CCUSO are former inmates who were prosecuted by the State of Iowa for sex crimes. They have served their prison terms but, in a separate civil trial, have been found likely to commit further violent sexual offenses. Pursuant to that finding, the State of Iowa committed the plaintiffs (and other CCUSO residents) to civil confinement at the state hospital in Cherokee. Patients at CCUSO can be released if they complete treatment or if they are released by the state court that originally committed them. This will be discussed in far more detail below.

Willis filed the initial pro se complaint in this case on September 26, 2012. (docket no. 1.). On January 24, 2013, Judge O’Brien entered an initial review order (IRO) allowing Willis’s claim to proceed and appointing attorney Jay Denne to represent him. (docket no. 2). On February 15, 2013, Judge O’Brien entered an IRO in case C13-4018, consolidating Matlock’s then pending pro se complaint with Mr. Willis’s above captioned case, (docket no. 8).

Mr. Denne subsequently filed an amended complaint on behalf of Willis and Mat-lock. (docket no. 16) The amended complaint had six counts. First, the plaintiffs alleged that the defendants failed to provide proper treatment under the Fourteenth Amendment to the U.S. Constitution, the Iowa Constitution, and the Iowa Code. Second, the plaintiffs alleged that the defendants were inflicting unconstitutional punishments under both the Fourteenth Amendment and the Iowa Constitution. Third, the plaintiffs alleged that the defendants were failing to use the least restrictive type of confinement as required by the Fourteenth Amendment and the Iowa Constitution. Fourth, the plaintiffs alleged that the defendants were subjecting CCUSO patients to inhumane treatment in violation of the Fourteenth Amendment and the Iowa Constitution. Fifth, the plaintiffs allege that I.C.A. Section 229A is unconstitutional as applied. Sixth, the plaintiffs alleged common law breach of contract relating to the CCUSO Handbook and treatment contracts, (docket no. 16).

On May 2, 2013, the defendants filed their motion to dismiss, (docket no. 17). On June 14, 2013, Judge O’Brien entered an IRO in C13-4047-DEO. (docket no. 21). In that pro se case, plaintiffs Taft, Huston, Millsap, Wright, Risdal, and Philips alleged that they were not receiving meaningful treatment and that CCUSO’s program was unconstitutionally punitive in nature. Judge O’Brien concluded their pro se case made claims similar to those made by Willis and consolidated C13-4047-DEO with the above captioned case, (docket no. 21). Judge O’Brien also appointed attorney Robert Tiefenthaler to act as co-counsel on the case along with Mr. Denne. Id.

On June 21, 2013, Judge O’Brien entered an IRO in case C13-4052-DEO. In that pro se complaint, Williams asked to be added to Willis’s case. Judge O’Brien granted his request, (docket no. 23). On July 26, 2013, the defendants filed a motion to sever the Taft group of plaintiffs from the rest of the case, (docket no. 21). Judge O’Brien conducted a hearing and denied that motion on August 16, 2013. (docket no. 40). On September 4, 2013, the plaintiffs filed a second amended complaint. (docket no. 41). In the second amended complaint, the plaintiffs made the same general allegations as in the initial amended complaint, discussed above, but added plaintiffs Taft, Huston, Millsap, Wright, Risdal, Williams, and Philips, (docket no. 41).

On September 25, 2013, the defendants filed an amended motion to dismiss, (docket no. 42). On September 15, 2014, Judge O’Brien granted in part and denied part the motion to dismiss. Specifically, Judge O’Brien allowed all of the plaintiffs’ claims to proceed except those filed under the Iowa Tort Claims Act. (docket no. 51, p. 24).

On September 26, 2014, the defendants’ filed an answer, generally denying the plaintiffs’ allegations and alleging various affirmative defenses, (docket no. 52). Shortly thereafter, two additional CCUSO patients filed pro se complaints similar to those filed in this case. Judge O’Brien considered those filings (docket nos. 57 and 63) as motions to join. After giving the parties an opportunity to respond, Judge O’Brien denied the motions to join and stayed the two new cases pending the resolution in this case, (docket nos. 67 and 68). The defendants filed the present motion for summary judgment on July 28, 2015. (docket no. 71). On August 18, 2015, Judge O’Brien passed away and this case was reassigned to me. On October 16, 2015, the plaintiffs filed a resistance, (docket no. 79). On October 22, 2015, the defendants filed a final reply brief, (docket no. 80).

B. Factual Findings

This case involves the legal history of CCUSO, the state of the treatment program at CCUSO, and the history of various CCUSO patients. Many of the facts are undisputed.

1. Civil commitment generally

Confining individuals with mental health disorders has a long, and often ugly, history in this country. Historically,

the criminal justice system was afforded considerable prerogative in the performance of its duties which allowed it to discreetly “sweep up” [the mentally ill]. Sanctions could be imposed for “status offenses,” such as vagrancy, even though a specific criminal act had not occurred. Law enforcement officials similarly had wide latitude in their investigations of crimes, with relatively few protections provided to a criminal suspect (e.g., little scrutiny was given to the circumstances under which a confession was given). Following conviction, criminal sentences varied widely and could be increased for individuals perceived as particularly threatening. Finally, once incarcerated, the focus was on assuring secure custody at minimal cost.

Thomas L. Hafemeister & John Petrila, Treating the Mentally Disordered Offender: Society’s Uncertain, Conflicted, and Changing Views, 21 Fla. St. U. L. Rev. 729, 733 (1994). Thankfully, the civil rights era brought increased awareness to those suffering from mental illness and also caused a reexamination of civil commitment laws. Today,

[i]nvoluntary civil commitment statutes exist in every state, and allow the state to commit a person against his or her will if there is proof of a mental disability that poses a substantial threat of serious harm to oneself or others. The threat of harm must be real and present, and the burden of proof to establish dangerousness (to self or others) must be clear and convincing.

Sarah E. Spierling, Lock Them Up and Throiv Away the Key: How Washington’s Violent Sexual Predator Law Will Shape the Future Balance Between Punishment and Prevention, 9 J.L. & Pol’y 879, 880-81 (2001). The state of Iowa commits persons suffering from ‘normal’ mental illness pursuant to Iowa Code § 229.

The U.S. also has a long history of committing persons considered sexual deviants.

The involuntary commitment of sexual predators has its roots in the 1930s when state legislatures first introduced procedures for confinement of “sexual psychopaths, sexually dangerous persons, and sex offenders.” The State of Michigan was the first state to pass such legislation in 1937. These statutes varied in nature and in jurisdictional basis. Some required prior criminal convictions for sex offenses. Many laws required different evidence of mental illness, personality disorders, and propensity to sexually re-offend. Virtually all statutes provided for involuntary civil commitment until the offender, was deemed no longer a danger or threat to society. Many of the states labeled these statutes as Mentally Disordered Sex Offender (MDSO) statutes. Sex offender treatment was emphasized for these offenders because it was believed that this population was likely to have high rates of recidivism and would ,be amenable to treatment. Further, some groups of sex offenders, such as pedophiles, were likely to be ostracized by non-sex offenders and would need segregation within a prison setting. Commitment as a MDSO usually required that the defendant be likely to commit sex offenses as a result of a “mental disease or defect.” Many of the states’ original MDSO statutes were construed so that commitment could be of an indefinite duration. Release from the institution could only be initiated by the superintendent of the facility and approval by the committing court. Many later statutes limited the time of confinement to be the maximum time the defendant could have been sentenced to prison if convicted criminally. More than half of the states had implemented sexual predator legislation by 1960; however, by the end of the 1980s this number had been cut in half due to concerns regarding the violation of constitutional rights and the questionable efficacy and success of sex offender treatment.

John M. Fabian, Kansas v. Hendricks, Crane and Beyond: “Mental Abnormality,” and “Sexual Dangerousness”: Volitional vs. Emotional Abnormality and the Debate Between Community Safety and Civil Liberties, 29 Wm. Mitchell L. Rev. 1367, 1372-73 (2003). The decline in sex offender commitment was short lived. “Because of the increase in commitment of sexual predators and high publicity sex offending cases, the 1990s witnessed a resurgence of legislative activity. Many states implemented statutes authorizing civil commitment of sexually violent sex offenders.” Id. Kansas was one of the first states to institute this new type of civil commitment for sex offenders. Under the Kansas law, sex offenders who had previously been criminally convicted of sex crimes could be civilly confined for indefinite treatment if they were found to pose an ongoing risk to society because of a mental abnormality. Kan. Stat. ÁNN. § 59-29a01. The Kansas Supreme Court struck down the statute, holding that commitment based on a mental “abnormality” did not satisfy the substantive due process requirement that .involuntary civil commitment must be based on a finding of mental illness. In re Hendricks, 259 Kan. 246, 912 P.2d 129, 138 (1996). Kansas appealed to the Supreme Court. Justice Clarence Thomas, writing for the. 5-4 majority, reversed, stating:

[T]he Kansas Sexually Violent Predator Act comports with due process requirements and neither runs afoul of double jeopardy principles nor constitutes an exercise in impermissible ex post facto lawmaking. Accordingly, the judgment .of the Kansas Supreme Court is reversed.

Kansas v. Hendricks, 521 U.S. 346, 371, 117 S.Ct. 2072, 2086, 138 L.Ed.2d 501 (1997). However, Justice Kennedy qualified that holding in his concurrence:

If the civil system is used simply to impose punishment after the State makes an improvident plea bargain on the criminal side, then it is not performing its proper function.., We should bear in mind that while incapacitation is a goal common to both the criminal and civil systems of confinement, retribution and general deterrence are reserved for the criminal system alone. On the record before us, the Kansas civil statute conforms to our precedents. If however, civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it.

Hendricks, 521 U.S. at 873, 117 S.Ct. 2072 (Kennedy, J., concurring in judgment) (emphasis added).

After Kansas’s statutory scheme survived the Supreme Court challenge, the Iowa Legislature enacted Iowa Code Ch. 229A, which is very similar to Kansas’s law. As explained by the Iowa Legislature:

The general assembly finds that a small but extremely dangerous group of sexually violent predators exists which is made up of persons who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the treatment provisions for mentally ill persons under chapter 229, since that chapter is intended to provide short-term treatment to persons with serious mental disorders and then return them to the community. In contrast to persons appropriate for civil commitment under chapter 229, sexually violent predators generally have antisocial personality features that are unamenable to existing mental illness treatment modalities and that render them likely to engage in sexually violent behavior. The general assembly finds that sexually violent predators’ likelihood of engaging in repeat acts of predatory sexual violence is high and that the existing involuntary commitment procedure under chapter 229 is inadequate to address the risk these sexually violent predators pose to society. The general assembly further finds that the prognosis for rehabilitating sexually violent predators in a prison setting is poor, because the treatment needs of this population are very long-term, and the treatment modalities for this population are very different from the traditional treatment modalities available in a prison setting or for persons appropriate for commitment under chapter 229. Therefore, the general assembly finds that a civil commitment procedure for the long-term care and treatment of the sexually violent predator is necessary. The procedures regarding sexually violent predators should reflect legitimate public safety concerns, while providing treatment services designed to benefit sexually violent predators who are civilly committed. The procedures should also reflect the need to protect the public, to respect the needs of the victims of sexually violent offenses, and to encourage full, meaningful participation of sexually violent predators in treatment programs.

Iowa Code § 229A.1. Following enactment of Iowa Code § 229A, the state began filing petitions to commit criminals convicted of* sex crimes to the mental hospital in Cherokee, Iowa.

2. The treatment process

Once patients are committed to CCUSO, they begin to travel through the “Phases” of treatment, which are described in the CCUSO Patient Handbook and Orientation Manual (the Handbook). As previously set out by the Iowa Supreme Court;

Each phase adheres to a general time line of progression from one phase to the next. The first phase is the assessment and observation phase. The handbook describes this phase as the time patients and program staff have an opportunity to become acquainted and to develop a clear understanding about program expectations and rules. A patient is able to move to phase two once the patient has demonstrated a stable and cooperative behavioral pattern and completes each of the following requirements: (1) completion of all psychological testing; (2) admission of some sexual offense or completion of a clean polygraph; (3) completion of relaxation training and basic cognitive skills training; (4) orientation to the program and completion of the patient handbook; (5) thirty days of good behavior free from any major infractions; and (6) signing a phase two contract with request for placement in phase two.

In the second phase, the patient enters the core phase. The patient participates in a minimum one-year curriculum of psycho-educational groups. These groups are designed to teach concepts and skills that are fundamental to learning to control sexual impulses. In order to advance to level three, the patient must pass an oral or written exam over the curriculum and complete the following requirements: (1) satisfactory completion of four quarters of psycho-educational classes; (2) pass polygraph exams concerning minor victims, adult victims, and paraphilias; (3) freedom from major behavioral reports and close supervision for ninety days; (4) no ratings lower than three on the last ninety-day review; and (5) signing a phase three contract and submitting a written request for placement in phase three. In the third phase, the patient enters the advanced phase. In this phase, the patient will work on applying the principles and concepts learned in phase two and achieving the goals established in an individualized treatment plan. Basic requirements for advancement are: (1) no ratings lower than five on the last ninety-day review; (2) absence of any major behavioral reports for the last four months; (3) completion of specific offense polygraphs, if requested; (4) development of an individualized treatment plan; (5) completion of victim sheets and victim letters; and (6) signing a phase four contract and submitting a written request for placement in phase four.

Swanson v. Civil Commitment Unit for Sex Offenders, 737 N.W.2d 300, 303-04 (Iowa 2007). Phase IV is called the demonstration phase, the final phase before transitional release. Requirements for completion of Phase IV include the following:

1) detailed relapse prevention plan completed and approved by clinical team; 2) successful completion of polygraph exam regarding recent sexual fantasies and behaviors, with no new admissions and just prior to completion of annual review; 3) 180 days of good behavior, free from major behavioral reports and close supervision; 4) no ratings less than 8 on the last 90-day review; 5) demonstration of good sexual control and non-deviant sexual responses through the PPG and the Abel Screen, and absence of problematic sexual behavior, including deviant masturbatory fantasies; 6) demonstration of financial responsibility; 7) begin making reparations to victims by giving time or money to groups that serve victims. For example, making things for victim’s organization or making donations. All donations will be anonymous; 8) signing a Phase V application requesting placement in Phase V, with completion of all treatment goals in your individual treatment plan will result in therapist notifying the evaluator of the completion of Phase IV for requirements. The evaluator will independently review in order to determine if all transitional release criteria has been met; and 9) placement in a Transitional Phase by the committing court.

(docket no. 72-1, p. 49-50). In transitional release, Phase V, the requirements become expansive.

1) Maintain housing in CCUSO apartment for a minimum of one year without violating any rules or deviating from the relapse prevention plan. 2) Successful completion and passing all polygraph exams without any new admissions or reports of sexually inappropriate or risky behavior. 3) One year of good behavior free from any behavioral reports or behavior qualifying for a report. 4) Consistent acceptable ratings on the Sex Offender Intervention and Progress Scale (SOTIPS). 5) Successfully maintain employment (or participation in a volunteer program if retired or unable to work), for at least one year. 6) Demonstrate an adequate financial and social support system and the ability to make responsible financial decisions. 7) Attend support/therapy groups along with individual therapy/counseling as determined by the Treatment Team. 8) Fulfill all requirements included in the patient’s court ordered transitional release plan for a minimum of one year. 9) Submit to and pass all random physiological assessments requested by the Treatment Team. 10) Refer to the Transition Handbook for additional expectations and information.

(docket no. 72-1, p. 51). A patient should be discharged after completing transitional release into a period of release with supervision. Release with supervision is very similar to criminal probation. Transitional release and release with supervision are both specifically authorized by statute. See Iowa Code §§ 229A.8A and 229A.9A.

CCUSO had eighty patients January 1, 2010. Thirteen more were admitted in 2011, thirteen in 2012, four in 2013, five in 2014, and six in the first half of 2015. On December 31, 2010, nine CCUSO patients were in transitional release and none in release with supervision. On December 31, 2011, twelve were in transitional release and none in release with supervision. On December 31, 2012, after Judge O’Brien originally allowed this case to proceed, thirteen were in transitional release and two were in release with supervision. On December 31, 2013, eighteen were in transitional release and three were in release with supervision. On December 21, 2014, after Judge O’Brien denied the defendants’ motion to dismiss, fourteen patients were in transitional release and seven were in release with supervision.

Between 1998 and 2010, no patients successfully completed CCUSO’s treatment program. Some patients were discharged, but for technical reasons. Since 2010, eleven patients and one plaintiff (Matlock) have been discharged from the CCUSO program by the Iowa state court. Those patients include the following:

a. Mr. Elet was discharged following DHS authorizing a Petition for Discharge. b. Mr. Lehman, Mr. Fowlér, Mr. Stenzel, and Mr. Geltz, were discharged due to technical legal issues, c. Mr. Cub-bage was discharged following a notice of ho objection from the State, d. Mr. Hollins, Mr. Hoffert, Mr. Johnson, and Mr. Matlock were discharged following a court finding that they ho' longer suffered from a mental abnormality. Mr. Hoffert and Mr. Matlock successfully completed release with supervision.

(docket no. 72, p. 2). Mark Étie was also discharged after completing release with supervision. (docket no. 75). Since 2010, four patients passed away due to natural causes: two died from cancer, one from complications of Hepatitis C, and one from a fatal heart attack. Based on those facts, it is clear six patients — Cubbage, Etie, Hollins, Hoffert, Johnson, and Matlock— were discharged for reasons related to successful treatment. Put another way, patients were slightly more likely to be successfully treated and released than they were to die in custody. Only two patients were released because of successful treatment before Judge O’Brien allowed this case to proceed.

The nine plaintiffs in this case were all committed to CCUSO at the time this action was commenced. Plaintiffs Damon Willis, Calvin Matlock, and Harold Williams were in the Transitional Release Program at CCUSO. Plaintiffs Taft, Huston, Risdal, Wright, Phillips, and Millsap were in Phase II of the program when they joined the case, (docket no. 42-1, p. 2). Some of these designations have since changed.

3. Defendants

The defendants in this cast are the following: 1) Charles Palmer, the head of the Iowa Department of Human Services, the agency that oversees CCUSO; 2) Dr. Jason Smith, the former administrator of CCU-SO; and 3) numerous individual treatment providers (therapists and social workers) from CCUSO. CCUSO has experienced considerable staff turnover since this case was initiated. Of the named therapist defendants, only Steve Tjaden and William Turner remain as full time CCUSO employees. Dr. Jason Smith is still with the program as a consultant, but is no longer the program administrator.

Steve Tjaden is employed by CCUSO, has a master’s degree in social work (with a corresponding license in the State of Iowa), and is a sex offender treatment professional (certified by the Iowa Board for the Treatment of Sex Offenders). He began working at CCUSO in 2008, where he originally was a “psychiatry security specialist”, responsible for supervising patients, including writing progress notes and writing incident reports. In 2010, Tja-den became a psychology assistant, responsible for handling a treatment caseload which included seeing patients in both an individual and group setting.

Robert Stout was hired as CCUSO’s chaplain in 2003. Stout has no professional education related to the treatment of sex offenders. He is a Baptist minister by profession, and left CCUSO in ,2014.

Matthew Royster was a therapist with CCUSO for twelve years, who was “forced” to resign in approximately 2013.

William (Bill) Turner testified that he is an inactive licensed mental health counselor and an inactive licensed social worker, both in the state of Iowa. His only active license in the State of Iowa is as a certified rehabilitation counselor. He started with CCUSO in 2003 and remains employed there.

Dr. Michael Loescher is a psychologist who worked at CCUSO for eighteen months starting in 2013.

Dr. Jason Smith is a psychologist who was the administrator at CCUSO from 2003-2014. He also ran the other state mental health facilities at Cherokee for a portion of that time. He left CCUSO in 2014, but returned as-a consultant in 2015.

Charles Palmer is the head of the Iowa Department of Human Services and has been in that position since 2011.

4. Defendants deposition testimony

One of the plaintiffs’ primary claims is that CCUSO does not provide adequate treatment. Dr. Smith testified that, nationally, civilly committed patients receive between two and seventeen house of therapy a week, and that there really is no national consensus on how much treatment is needed or what treatment is best. Dr. Smith testified that, at the time he left, CCUSO was providing somewhere between 4 and 6 hours of treatment per week and that he tried to maintain a caseload of 12-15 patients per therapist. However, as set out in the plaintiffs’ reply to the defendants’ statement of facts:

During his deposition, Dr. Jason Smith was asked whether therapists at CCU-SO had ever communicated that they needed more therapists to be able to do their job effectively, and he responded: “Yes, therapists would comment about the caseloads increasing and needing — more support.” (Defendants’ App. pp. 96, 97). ' Furthermore, Dr. Smith was asked if CCUSO had been looking for additional therapists for over a year and Dr. Smith responded “Yeah, and — and looking and also trying to obtain approval to hire additional therapists.” (Defendants’ App. p. 105). He was then asked if it would be fair to state that the patients of CCUSO had not been receiving adequate treatment since they had not had enough therapists to provide treatment over the past year, and he answered “Yeah.”

(docket no. 79-4,' p. 2). He also testified that most of the sex offender treatment was conducted in group sessions, as opposed to one on one meetings. The parties dispute the value of individual therapy. Tjaden testified that, when he started at CCUSO, there were approximately seven full time therapists, and he had a case load of 12-15 patients. He testified that, because of an increase in patients and a decrease in staff, he now has as many as 18 patients. He stated:

“I don’t have time to do individual sessions at all now so everything is based on groups. We don’t - we have such few therapists that we can’t offer all the psychoeducation groups that are required, that I feel are needed.” Mr. Tja-den was also asked how the individual sessions are helpful as opposed to the group sessions, and he responded “Well, some people don’t participate very well in group. So if they’re sitting in group and they’re not really giving much input, I don’t really know where they are. But if I’m sitting down with them one on one, I have a better sense of what they need, and then I can direct them to some activities that will help them grow.”

(docket no. 79-2, p. 4). Tjaden was unequivocal that patients do not get enough group therapy sessions. He said that CCUSO did not comply with the Handbook, which says treatment should be “intensive.” Tjaden testified he thought staff left CCUSO because the pay was too low. Most importantly, Tjaden testified that if there were more staff members at CCUSO, more patients would have progressed through treatment and been released.

Similarly, Pastor Stout testified: [BJecause he had some background in psychology, he was asked to- lead some psychiatric courses for patients. As the number of therapists decreased and the number of patients increased, he was given more responsibility to npt only do psychiatric education classes, but also to do therapy for patients.

(docket no. 79-2, p. 5). Ultimately, Stout testified that he spent eighty percent of his time doing therapy, and only twenty percent providing religious vocation. He also testified that, over his eleven years at CCUSO, weekly treatment hours provided to patients decreased from ten to four.

Royster, another therapist, testified more equivocally, at times indicating that CCUSO provided “enough” treatment, while also saying that treatment was delayed and “not” intensive because CCUSO was short-staffed. Royster did testify that his caseload increased from less than ten patients when he started to nearly thirty when he left CCUSO. Royster stated that CCUSO needed more therapists to adequately treat all the patients. Similarly, Turner testified that his caseload increased from nine patients to thirty-two patients and that he is “spread so thin.” (docket no. 79-2, p. 8). He stated that the size of his caseload makes it difficult to provide services to patients. As the number of patients has increased, and the number of staff has decreased, the length of time between patient evaluations has increased by nearly two months.

Dr. Loescher complained about the amount of documentation required to treat CCUSO patients. He said he left, in part, because it was difficult to provide services in an institution like CCUSO.

Palmer testified that, as the head of the Department of Human Services (DHS), he oversees both the budget for CCUSO and has ultimate control of the facility. He testified that he believed CCUSO was adequately staffed, and that the treatment program ran well. He stated he had never visited CCUSO.

5. Plaintiffs

Damon Willis has two sexual offense convictions. In 1986, he and another male asked girls for directions and offered them a ride. When one of the girls tried to run, he chased her, forced her to perform oral sex on him, and raped her. His second offense is for sexual assault on an inmate while incarcerated. Willis reported he sexually victimized six individuals in prison. He has been at CCUSO for well over ten years.

Willis has been in transitional release on multiple occasions. In 2007 he was in transitional release (TRP), which was revoked after he had sex with a visitor at the facility. He was returned to secure custody. In June 2011, he moved to TRP, then was returned to secure confinement after obtaining and viewing pornography. He returned to TRP for a third time in June 2012. In October 2013, a motion was filed to revoke him for having sex with a woman in public and lying about it. The state court confirmed the violation but kept him in TRP. Since then, Willis has remained in transitional release.

Calvin Matlock has three convictions for sex abuse dating back to the early 1980s. -In re Det. of Matlock, 860 N.W.2d 898, 900 (Iowa 2015). Specifically,

[h]is last conviction was in 1995, and prior to his set release from prison in 2000, the State filed a petition to place Matlock in civil commitment for sexually violent predators. In July 2001, a civil jury found Matlock was a sexually violent predator as defined by Iowa Code section 229A.2(9) (2001). Following the verdict, the district court confined Mat-lock to the Civil Commitment Unit for Sexual Offenders (CCUSO).

In re Det. of Matlock, 860 N.W.2d at 900. Matlock began release with supervision in 2014 and was discharged from.the program on June 26,2015. Matlock won a case at the Iowa Supreme Court shortly before he was discharged. The Iowa Supreme Court remanded his case, “back to the district court to review the release-with-supervision plan to ensure it is not punitive in nature.” Id. at 908.

Harold Williams has been at CCUSO since 2000.

The State [sought to civilly commit] Williams [before he was discharged from] a sentence for second-degree sexual abuse, having served ten years on an indeterminate twenty-five year term. See Iowa Code §§ 709.8(2), 902.9(1) (1987) (defining crime of second-degree sexual abuse and punishment therefor). The victim of Williams’ sexual assault was the five-year-old daughter of friends with whom he was then living. This incident, which involved digital penetration, followed four other convictions for sexual misconduct with children. In 1977, Williams pled guilty to lascivious acts with a child. Iowa Code § 725.10 (1977). He was released after serving roughly one-half of his five-year sentence. In 1981 he pled guilty and served a short prison term for indecent contact with a child. 1981 Iowa Acts ch. 204, § 7 (codified at Iowa Code § 709.12(1) (1983)). Again, in 1984, Williams pled guilty and served time for two more charges of indecent contact and lascivious' acts. Iowa Code §§ 709.12(1), 709.8(1) (1983).

In re Det. of Williams, 628 N.W.2d 447, 455 (Iowa 2001). Williams made it to TRP on at least two occasions, but was returned to secure confinement after searching for porn and pictures of nude children on one occasion and looking for children in Wal-Mart on another occasion. He remains in secure confinement.

David Taft, Jr. has appeared frequently before this court. See Taft v. Palmer, 2015 WL 859489 (N.D.Iowa 2015), setting out his complete case history. Taft was committed to CCUSO in 2005. As the Iowa Supreme Court explained,

Taft was arrested in December 1987 for lascivious acts with a minor, based on allegations that he sexually molested his sister and committed other criminal sexual offenses. He was convicted and sentenced to two five-year terms and a two-year term to run concurrently. He served this sentence and was discharged on May 31, 1991. Seven days after his discharge from prison,' Taft reoffended by sexually assaulting two girls who were unknown to him — one who was eight years old and the other who was ten. He was arrested and charged with second-degree sexual abuse, assault causing injury, and burglary. He was convicted and sentenced to prison. Taft was discharged from prison for these offenses on January 10,2005.

Taft v. Iowa Dist. Court ex rel. Linn Cty., 828 N.W.2d 309, 311 (Iowa 2013). Taft has never progressed out of Phase II of the treatment program.

Paul Blaise a.k.a. Paul Huston, whose 28 U.S.C. § 2254 petition I recently denied, see Huston v. Smith, 2016 WL 146493 (N.D.Iowa 2016), has

a long history of sexually aberrant behavior, going back as early as 1989. He was convicted of sexual abuse in the third degree in 1991 after abusing a nine-year-old girl and was sentenced to a ten-year term of imprisonment. After his release, he was in and out of jail and prison for a variety of offenses, including sexually related offenses. Even while incarcerated, Blaise was unable to contain his sexual deviance and sexual assault threats, and as a result, he received numerous disciplinary reports for sexual misconduct.

Blaise v. State, 801 N.W.2d 627 (Iowa Ct.App.2011). The state initiated proceedings to commit Blaise in 2007, after a different conviction:

As S.E. walked through River View Park in Fort Madison[, Iowa] in October 2005, Paul Blaise, who was collecting cans in the park, approached her and began asking her questions. He asked her if she was married, if she was sexually active, and if she would engage in anal sex. He wondered if she had ever been the victim of a violent crime, if she would use lubrication to have anal sex, if she would take her clothes off or have sex if someone asked her or threatened to hurt her. Although S.E. grew increasingly uncomfortable and quickened her pace, Blaise kept up with her while continuing to ask “hypothetical” questions. S.E. tried repeatedly to change the conversation and eventually ran away from Blaise and asked another pedestrian to walk her to her, car. After warning another female pedestrian that “there was someone in the park talking about rape and guns and all kinds of sexual stuff,” S.E. called the police. Officers located Blaise in the park and discovered he'was carrying a gun. Blaise ultimately pled guilty to first-degree harassment and received a two-year sentence.

In re Det. of Blaise, 830 N.W.2d 310, 313 (Iowa 2013). He has not progressed beyond Phase II of the treatment program.

Syveno Wright was civilly committed in 2006. His criminal conviction arose when:

the State charged [him] with kidnapping in connection with sexual abusé of an eleven-year-old West Des Moines child. Wright pled guilty to second-degree sexual abuse, in violation of Iowa Code sections 709.1 and 709.2 (1993).

Wright v. State, 2000 WL 564037, at *1 (Iowa Ct.App.2000). Wright has not progressed beyond Phase II of the treatment program.

Eddie Risdal was

tried and convicted of second-degree and third-degree sexual abuse of two minor boys. See Iowa Code §§ 709.1(3), 709.3(2), 709.4(5) (1985). He was sentenced to serve two consecutive indeterminate terms of incarceration-one term not to exceed twenty-five years, the other not to exceed ten years.

State v. Risdal, 404 N.W.2d 130, 130 (Iowa 1987). A jury determined that he was a sexually violent predator in 2004. In re Det. of Risdal, 723 N.W.2d 449 (Iowa Ct.App.2006). Risdal has never progressed beyond Phase II of the treatment program. ■

Donald Phillips was convicted of multiple counts of indecent exposure, enticing a child, and sexual abuse. He is currently in PhaseTV óf the treatment program.

Michael Millsap has a

long history of sexually abusing minor children. In 1979 Millsap sexually abused a paperboy and was adjudicated a delinquent for that offense. In 1981 Millsap entered an elementary school and sexually abused a young boy in the bathroom. He pled guilty to third-degree sexual abuse for that offense. While on parole following that conviction, Millsap attempted to sexually abuse another boy, which led to the revocation of his parole. In 1988 Millsap pled guilty to the crime of indecent contact with a child in connection with abuse he perpetrated on his four-year-old cóusin. In 1992 Millsap pled guilty to the crime of second-degree sexual abuse for pulling a fifteen-year-old boy into a bathroom at a church and sexually abusing him. Prior to Millsap’s release from prison for the 1992 conviction, the State filed a petition to have Millsap civilly committed as a sexually violent predator pursuant to Iowa Code chapter 229A. A jury trial commenced on September 19, 2005.

In re Det. of Millsap, 723 N.W.2d 453 (Iowa Ct.App.2006). Millsap has never progressed beyond Phase II of the treatment program.

6. Relief

In their statement of facts, the defendants spend considerable time discussing deposition testimony from the various plaintiffs. Specifically, the defendants assert that almost all plaintiffs testified that they either believed or hoped that the resolution of this case would result in them being released from CCUSO. The defendants believe that this testimony is relevant to the Heck v. Humphrey legal argument discussed below. However, in their amended complaint, the plaintiffs ask that:

a. the unlawful conduct alleged herein be declared to be illegal and in violation of the federal, state and common law claims alleged herein; b. That the Court order Defendants to provide proper treatment, appropriate less restrictive alternatives, and in general operate CCUSO without an improper purpose of punishment; c. That Defendants be enjoined from engaging in the same or similar practices alleged herein; d. That Plaintiffs recover actual damages, as provided by law, determined to have been sustained as to each of them, and that judgment be entered against Defendants on behalf of Plaintiffs; e. That Plaintiffs receive pre-judgment and post-judgment interest as allowed by law; f. That Plaintiff [sic] recover their costs of the suit, and attorneys’ fees as allowed by law; and g. All other relief allowed by law and equity.

(docket no. 41, p. 14).

II. LEGAL ANALYSIS

A. Issues

Defendants make seven arguments. First, they argue that I should exercise my discretion and abstain from this case. Second, defendants argue that the plaintiffs’ claims are Heck barred because a favorable ruling would invalidate their state court commitments. Third, defendants broadly argue that the conditions of treatment at CCUSO do not violate any constitutional standards. Fourth, defendants argue that they are entitled to qualified immunity. Fifth, they argue that certain individual defendants are not personally responsible. Sixth, the defendants argue that plaintiffs’ contract claims are not properly before the federal court. Finally, the defendants argue that they are immune from money damages.

B. Summary Judgment Standard

Motions for summary judgment essentially “define disputed facts and issues and ... dispose of unmeritorious claims [or defenses].” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 585, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“One of the principal purposes of the summary-judgment rule is to isolate and dispose of factually unsupported claims or defenses. ... ”). Summary judgment is only appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005) (“Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Any party may move for summary judgment regarding all or any part of the claims asserted in a case. Fed. R. Civ. P. 56(a). “The movant ‘bears the initial responsibility of informing the district court of the basis for its motion,’ and must identify ‘those portions of [the record] ... which it believes demonstrate the absence of a genuine issue of material fact.’ ” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.2011) (en banc) (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548). The movant must also demonstrate that it is entitled to judgment according to law. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (“[T]he motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.”). A fact is material when it “ ‘might affect the outcome of the suit under the governing law.’ ” Johnson v. Crooks, 326 F.3d 995, 1005 (8th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Thus, “the substantive law will identify which facts are material.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), or when “ ‘a reasonable jury could return a verdict for the nonmoving party’ on the question,” Woods, 409 F.3d at 990 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see also Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.2005) (stating genuineness depends on “whether a reasonable jury could return a verdict for the non-moving party based on the evidence”).

In response, “[t]he nonmovant ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ and must come forward with ‘specific facts showing that there is a genuine issue for trial.’” Torgerson, 643 F.3d at 1042 (quoting Matsushita Elec. Indus. Co., 475 U.S. at 586-87, 106 S.Ct. 1348). Put another way, once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or otherwise, designate specific facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir.2005) (“The nonmoving party may not ‘rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.’ ” (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995))); FED. R. CIV. P. 56(c) (explaining that the non-movant must “cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” to show that a fact “is genuinely disputed”).

When the parties have met their burden, the district judge’s task is as follows:

“On a motion for summary judgment, ‘facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.’” Ricci v. DeStefano, [557 U.S. 557], 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal quotations omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).... “ ‘Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.’” Ricci, 129 S.Ct. at 2677, quoting Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

Torgerson, 643 F.3d at 1042-43. Summary judgment is particularly appropriate when only questions of law are involved, rather than factual issues that may or may not be subject to genuine dispute. See, e.g., Cremona v. R.S. Bacon Veneer Co., 433 F.3d 617, 620 (8th Cir.2006).

C. Younger Abstention

1. Standard

Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), instructs federal courts to abstain when certain types of “exceptional” parallel state court proceedings exist. Sprint Comm., Inc. v. Jacobs, — U.S. -, 134 S.Ct. 584, 588, 187 L.Ed.2d 505 (2013). Federal court abstention is warranted when one of a few “exceptional” types of parallel pending state court proceedings exist: “state criminal proceedings, civil enforcement proceedings, and civil proceedings involving certain orders that are uniquely in furtherance of the state court’s ability to perform their judicial function.” Id. at 588 (quotations omitted). “Abstention is appropriate in such circumstances because the prospect of undue interference with state proceedings counsels against federal relief.” Banks v. Slay, 789 F.3d 919, 923 (8th Cir.2015) (internal citations omitted). The Eighth Circuit Court of Appeals has stated that:

[tjhere are essentially three issues that must be addressed in determining whether to invoke the Younger abstention doctrine: (1) whether the action complained of constitutes an ongoing state judicial proceeding; (2) whether the proceedings implicate important state interests; and (3) whether there is an adequate opportunity in the state proceedings to raise constitutional challenges.

Night Clubs, Inc. v. City of Fort Smith, Ark, 163 F.3d 475, 479 (8th Cir.1998).

2. Analysis

The defendants’ first argument is that I should abstain from this case because each plaintiff is entitled to have their civil commitment reviewed by the Iowa state court on a yearly basis.

Judge O’Brien previously considered the abstention argument in his motion to dismiss ruling. In denying the argument at that time, he pointed to a similar argument raised in Ireland v. Anderson, 2014 WL 3732014 (D.N.D.2014). Ireland is a similar case against North Dakota’s civil commitment program that North Dakota federal court allowed to proceed. In that case, the civilly committed plaintiffs alleged that the North Dakota’s sexual offender program “denied plaintiffs and class members the right to be free from punishment, denied plaintiffs and class members the right to be free from punishment without a jury trial ...” The North Dakota court denied the states’ motion to dismiss on abstention ground. Judge O’Brien ruled that Magistrate Judge Klein’s conclusion in that case applied to this case as well:

[I]f the court were to accept defendants’ position, the plaintiffs’ proceedings would always be ongoing as long as they were civilly committed... It is unclear whether any of the plaintiffs have an annual review hearing scheduled and pending before the state district courts. Assuming there is a pending proceeding, it appears some state district courts may allow claims related to the least restrictive treatment, while others will not. It does not appear the plaintiffs would be allowed to raise other claims related to the conditions of their confinement at a review hearing, and it is unlikely they would be allowed to raise issues regarding the policies and practices utilized by the defendants in the enforcement of the statutes, other than claims related to the least restrictive treatment, and even then it would depend on whether the state district court judge decides to exercise limited review of the decision of the executive director. In light of all of the circumstances, abstention is not warranted because there is no consistent, predictable and adequate opportunity for the plaintiffs to raise their claims regarding their conditions of confinement and regarding the policies and practices utilized by the defendants in the enforcement of the statutes in proceedings before the state courts.

Ireland, 2014 WL 3732014 at *8-9. Judge O’Brien went on to say that, “because there are not ongoing state processes where the Plaintiffs can raise their federal claims, the Defendants’ Motion to Dismiss on abstention grounds must be denied.” (docket no. 51, p. 23).

The plaintiffs argue, and I agree, that the defendants have failed to articulate any change in circumstance upon which I should reconsider Judge O’Brien’s ruling. It is true that each individual plaintiff has an annual review before the Iowa state court. But those annual reviews are confined to each individual’s case, and whether that individual has a sexual abnormality such that commitment is appropriate. In this case, the plaintiffs allege that the defendants fail to provide proper treatment under the Fourteenth Amendment, the defendants are inflicting unconstitutional punishments under the Fourteenth Amendment, defendants are failing to use the least restrictive type of confinement as required by the Fourteenth Amendment, defendants are subjecting CCUSO patients to inhumane treatment in violation of the Fourteenth Amendment and the Iowa Constitution, and that IOWA CODE § 229A is unconstitutional as applied. There is no allegation that there is state court process whereby these plaintiffs can raise those federal constitutional claims.

Thus, applying the three factors, it is clear that the action complained of does not duplicate an ongoing state judicial proceeding. While it is true the plaintiffs have state court cases, those eases are not about these issues. Second, there is no doubt this case involves an important state interest. As defendants properly point out:

Iowa’s interest in the administration of the civil commitment of sexually violent predator program is significant. Iowa’s legislature set out the importance of the statute in its legislative findings, Iowa Code § 229A.1. The findings underscore the dangerousness of a group of sexually violent predators, and notes that procedures should reflect public safety concerns, while providing treatment services designed to benefit sexually violent predators who are civilly committed. Iowa Code § 229A.1. Iowa’s significant state interests are also reflected in the procedures set out in Chapter 229A as a whole.

(docket no. 71, p. 8). The importance of treating sexual offenders notwithstanding, the question of whether the state is violating a detainees’ federal constitutional rights is a claim properly brought in federal court. Finally, although the defendants have made the blanket allegation that the annual reviews give plaintiffs the chance to argue these issues, the defendants have failed to allege any facts to support that assertion. Conversely, the record is full of annual reviews decisions that turn, not on constitutional questions such as whether CCUSO has become punitive in nature, but on the individual treatment notes of the plaintiffs. Accordingly, I will not disturb Judge O’Brien’s prior ruling on this issue.

D. Colorado River Abstention

1. Standard

The Colorado River doctrine: permits federal courts to decline to exercise jurisdiction over cases where “parallel” state court litigation is pending, meaning that there is “a substantial likelihood that the state proceeding will fully dispose of the claims presented in the federal court.” Cottrell v. Duke, 737 F.3d 1238, 1245 (8th Cir.2013), quoting FruCon [Const. Corp. v. Controlled Air, Inc.], 574 F.3d [527] at 535 [ (8th Cir.2009) ]. This rule is based on “considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.” [Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976)] (internal quotation marks and alterations omitted). Nevertheless, federal courts have a “virtually unflagging obligation ... to exercise the jurisdiction given them,” id. which “does not evaporate simply because there is a pending state court action involving the same subject matter.” Federated Rural Elec. Ins. Corp. v. Ark. Elec. Coops., Inc., 48 F.3d 294, 297 (8th Cir.1995). Rather, Colorado River abstention is appropriate oniy in “exceptional circumstances” where the surrender, of federal jurisdiction is supported by “the clearest of justifications.” Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 25-26, 103 S.Ct. 927, 74 L.Ed.2d 765

(1983). We examine six factors to determine whether exceptional circumstances exist warranting abstention: (1) whether there is a res over which one court has established jurisdiction, (2) the inconvenience of the federal forum, (3) whether maintaining separate actions may,result in piecemeal litigation, unless the relevant law would require piecemeal litigation and the federal court issue is easily • severed, (4) which case has priority. — not necessarily which case was filed first but a greater emphasis on the relative progress made in the cases, (5) whether state or federal law controls, especially favoring the exercise of jurisdiction where federal law controls, and (6) the adequacy of thé state forum to protect the federal plaintiffs rights. Federated Rural, 48 F.3d at 297.

Spectra Commc’ns Grp., LLC v. City of Cameron, Mo., 806 F.3d 1113, 1121 (8th Cir.2015).

2. Analysis

Again, the defendants argue abstention is appropriate, under the slightly different Colorado River standard. As noted above, Judge O’Brien already rejected the abstention doctrine. Judge O’Brien was correct, for a number of reasons.

First, the defendants premise their argument on the claim that “plaintiffs seek release ... Those decisions are controlled by the state ... court.” (docket no. 71-1, p. 10). While it is true that plaintiffs testified they would like to be released, the second amended complaint, which controls the relief issue, asked that T find that. CCUSO’s program is constitutionally deficient and order appropriate injunctive relief to correct the deficiencies. The plaintiffs’ second amended complaint does not request the release of individual plaintiffs, so this action does not duplicate the state court process or infringe on issues of state law.

Second, the defendants’ primary argument is under the third factor, separate trials will result in piecemeal litigation. It is true that various CCUSO patients have filed state court cases in which they have made constitutional arguments. However, that does not divest the federal court from having authority over a 42 U.S.C. § 1983 case claiming a constitutional violation by a state actor. As the Supreme Court recently stated while considering a New York law trying to reserve certain violations to the state court:

The State’s policy, whatever its merits, is contrary to Congress’ judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages. As we have unanimously recognized, “[a] State may not ... relieve congestion in its courts by declaring a whole category of federal claims to be frivolous. Until it has been proved that the claim has no merit, that judgment is not up to the States to make.”

Haywood v. Drown, 556 U.S. 729, 736-37, 129 S.Ct. 2108, 2115, 173 L.Ed.2d 920 (2009) (internal citations omitted). Perhaps more importantly, these types of cases are routinely brought in federal court. For example, Strutton v. Meade, 668 F.3d 549, 551 (8th Cir.2012), a case repeatedly cited by the defendants, deals with a broad constitutional challenge to the adequacy of treatment for a civilly committed sex offender in Missouri. Similarly, the Ireland v. Anderson case, cited above, dealt with a broad constitutional challenge to North Dakota’s sexual offender program, and Karsjens v. Jesson, which will be discussed below, concerned a broad challenge to Minnesota’s sexual offender treatment program. Absent the defendants pointing to a specific state court case concerning the specific issues raised by the plaintiffs in this case, Colorado River abstention is not appropriate because there is no danger of “piecemeal” findings by different courts.

E. Heck v. Humprey

1. The standard

The Defendants next argue that this type of suit is barred by the ruling in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck v. Humphrey, the Supreme Court held that:

when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has