                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3093
                        ___________________________

John R. Van Orden; Michael D. McCord; Joseph Miller; Macon Baker; Chance W.
  Tyree; Walter W. Ritchey; David Brown; Anthony Amonette; Richard Tyson;
      Wade A. Turpin; Matthew King; Andre Cokes; Joseph Bowen, Class
            Representative; William Murphy, Class Representative,

                      lllllllllllllllllllllPlaintiffs - Appellants,

                                           v.

 Mark Stringer; Harold Myers, Reimbursement Officer, HealthLink, Individually
 and Officially; Alan Blake, Chief Operating Officer, MSOTC, Individually and
Officially; Julie Inman; Jay Englehardt; Justin Arnett; Rick Gowdy, in his official
 capacity as Director of the Missouri Department of Mental Healths Division of
    Behavioral Health; Robert Reitz; Linda Moll; Daman Longworth; Donna
 Augustine; Dave Schmitt; Ericka L. Kempker; Kristina Bender-Crice; Angeline
   Stanislaus, in her official capacity as Chief Clinical Officer of the Missouri
Department of Mental Health; Anne Precythe, in her official capacity as Director
of the Missouri Department of Corrections; Rikki Wright, in his official capacity
as Deputy Director of the Missouri Department of Mental Health for the Division
 of Behavioral Health; David Schmitt, in his official capacity as Chief Operating
Officer of Southeast Missouri Mental Health Centers Adult Psychiatric Services;
Andy Atkinson, in his official capacity as Chief Operating Officer of Fulton State
  Hospital; Lee Ann McVay, in her official capacity as Program Coordinator at
SORTS-Fulton State Hospital; Susan Knopflein, in her official capacity as Chief
                     Nurse Executive at Fulton State Hospital,

                     lllllllllllllllllllllDefendants - Appellees.
                                      ____________

                    Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________
                          Submitted: September 26, 2018
                            Filed: September 11, 2019
                                  ____________

Before COLLOTON, BEAM, and GRASZ, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

       A class of civilly-committed residents of Missouri’s civil commitment program
for certain sex offenders appeal the dismissal of their claims against state officials.
The residents allege that the state officials deprived them of constitutional rights
under the rubric of substantive due process. The district court1 initially found the
defendants liable for constitutional violations, but reconsidered in light of Karsjens
v. Piper, 845 F.3d 394 (8th Cir. 2017), and entered judgment on behalf of the state
officials. The residents appeal, and we affirm.

                                          I.

       In 1998, the Missouri legislature enacted the Missouri Sexually Violent
Predator Act to govern the civil commitment of persons adjudicated to be sexually
violent predators. See 1998 Mo. Legis. Serv. 106 (West); Mo. Rev. Stat. §§ 632.480-
632.525. A person may be committed in the program only if a judge or jury
determines by clear and convincing evidence that he is a sexually violent predator.
Mo. Rev. Stat. § 632.495.1. A “[s]exually violent predator” is a person who, among
other things, has a “mental abnormality which makes the person more likely than not
to engage in predatory acts of sexual violence if not confined in a secure facility.”
Id. § 632.480(5).


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

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       After commitment, Missouri law provides avenues to secure conditional
release. The director of the department of mental health (or his designee) is required
to prepare an annual report on each resident’s mental condition and provide it to the
state court that committed the person. Id. § 632.498.1. If the director determines that
a resident is no longer likely to commit acts of sexual violence, then he “shall
authorize the person to petition the court for release.” Id. § 632.501. Alternatively,
a resident may file his own petition for release without director approval. See id.
§§ 632.498.2, .504. If the court at a hearing determines by a preponderance of the
evidence that the committed person is no longer likely to engage in acts of sexual
violence if released, then the person is entitled to a trial on the issue. See id.
§ 632.498.4; In re Coffman, 225 S.W.3d 439, 442-44 (Mo. 2007). To justify
continued commitment, the State must prove by clear and convincing evidence that
the person is still likely to engage in acts of sexual violence if released. Mo. Rev.
Stat. § 632.498.5(3). Otherwise, the person is entitled to conditional release. See id.
§§ 632.498.5(4), .505.1.

       In 2009, a group of civilly-committed persons brought suit on behalf of
themselves and those similarly situated against state officials responsible for
operating the program. The fifth amended complaint alleged, inter alia, that the
State’s commitment provisions are facially unconstitutional, and that the treatment
program as applied to the residents violates their substantive due process rights. The
treatment program, the complaint alleged, is a “sham” that does not provide a
“realistic opportunity for release.” For purposes of the treatment claims, the district
court certified a class under Federal Rule of Civil Procedure 23(a) and (b)(2) made
up of “persons who are, or will be, during the pendency of this action,” residents of
Missouri’s commitment program for sexually violent predators.

      The district court held a bench trial in April 2015 and entered an order on the
question of liability. The court ruled that the Act is not unconstitutional on its face,
and dismissed the state-law claims with prejudice, but granted a declaration that the

                                          -3-
Act is unconstitutional as applied to the class. The court concluded the treatment
program suffered from three “constitutional deficienc[ies].”

       First, the court found that “annual reviewers have not been applying the correct
legal standard when evaluating whether a resident meets the criteria for conditional
release.” The result, the court believed, was that residents remained confined
“beyond the time constitutionally justified.” Second, the court found that state
officials were not releasing low-risk residents into less restrictive housing, and had
“not even designed procedures to do so,” but were instead imposing an indefinite
“release without discharge” condition on those residents. Third, the court found that
the director of the department of mental health had “abdicated his duty” to authorize
petitions for release of low-risk residents, resulting in “the continued confinement of
persons who no longer meet the criteria for commitment.”

       Before reaching the remedies phase, the district court sua sponte requested
briefing on whether it should reconsider its liability order in light of our intervening
decision in Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017). In Karsjens, this court
rejected an as-applied substantive due process challenge to Minnesota’s civil
commitment program for sexually dangerous persons. See id. at 410-11. The district
court concluded that the underlying findings in Karsjens were materially
indistinguishable from those in its own liability order, so it reconsidered that order
and rejected the residents’ as-applied constitutional claims. The district court later
denied the residents’ motion to alter or amend the judgment on their state-law claims
to a dismissal without prejudice.

       We review the district court’s findings of fact for clear error and its legal
conclusions de novo. Lisdahl v. Mayo Found., 633 F.3d 712, 717 (8th Cir. 2011).
The denial of the motion to alter or amend the judgment is reviewed for abuse of
discretion. Sipp v. Astrue, 641 F.3d 975, 980-81 (8th Cir. 2011).



                                          -4-
                                           II.

                                           A.

       To prevail on an as-applied substantive due process claim, the residents must
show both that the state officials’ conduct is conscience-shocking and that it violated
a fundamental right of the residents. See Terrell v. Larson, 396 F.3d 975, 978 n.1
(8th Cir. 2005) (en banc); Moran v. Clarke, 296 F.3d 638, 651 (8th Cir. 2002) (en
banc) (Bye, J., concurring and writing for a majority on this issue). One question in
a substantive due process challenge to executive action is “whether the behavior of
the governmental officer is so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833,
848 n.8 (1998). Another prerequisite for such a claim is that the officials’ conduct
violated “one or more fundamental rights that are deeply rooted in this Nation’s
history and tradition, and implicit in the concept of ordered liberty.” Moran, 296 F.3d
at 651 (Bye, J., concurring and writing for a majority) (internal quotation marks
omitted). The claims here founder on both elements.

       The residents, of course, have a liberty interest in freedom from state custody,
but in this case, their liberty was constrained in accordance with due process of law.
All were adjudicated as sexually violent predators in the Missouri courts, and there
is no dispute that they were constitutionally deprived of liberty on that basis. See
Kansas v. Hendricks, 521 U.S. 346, 356-60 (1997). A civilly-committed person also
has a liberty interest in gaining release from detention if the reasons that justified the
commitment no longer exist. O’Connor v. Donaldson, 422 U.S. 563, 575 (1975).
But Missouri law provides a procedure under which a committed person can petition
for release, and a state court must determine whether the person still suffers from a
mental abnormality that makes him likely to engage in acts of sexual violence if
released. Mo. Rev. Stat. §§ 632.498.2-.5, .504. If a person invokes those procedures,
and a court properly determines that he remains a sexually violent predator, then there

                                           -5-
is continued deprivation of liberty, but that deprivation occurs with due process of
law.

        In this litigation, the residents have proceeded as a class, seeking the same
relief as to every class member. See Fed. R. Civ. P. 23(b)(2). They do not claim that
the class members as a group are entitled to release. They urge instead that the
defendant officials have failed to implement certain statutory requirements in a way
that will release residents from detention when appropriate, and they seek injunctive
relief that directs the officials to operate differently. Whatever the merits of the
claims that Missouri officials are not properly implementing the Act, we conclude
that the concept of substantive due process does not encompass a fundamental right
in having the state officials perform as requested.

       For purposes of substantive due process, a fundamental right or liberty is one
that is “deeply rooted in this Nation’s history and tradition,” and “implicit in the
concept of ordered liberty,” such that “neither liberty nor justice would exist if they
were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal
quotations omitted). The residents suggest that they are pursuing a fundamental right
of freedom from bodily restraint that meets the foregoing criteria. See Zadvydas v.
Davis, 533 U.S. 678, 690-95 (2001). But their claim in this litigation is different.
They do not assert a typical substantive due process claim against “certain
government actions regardless of the fairness of the procedures used to implement
them.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (internal
quotation omitted). Rather, they contend that the defendant officials must change the
way that they conduct annual reviews of civilly-committed persons, design
procedures for releasing low-risk residents into less restrictive housing, and carry out
a statutory duty to authorize petitions for release of low-risk residents.

       An entitlement to these actions is not deeply rooted in the Nation’s history and
tradition or implicit in the concept of ordered liberty. Regardless of how the

                                          -6-
defendant officials carry out their functions under state law, the Act provides that a
civilly-committed person may petition a state court for release on the ground that the
person no longer suffers from a mental abnormality that makes him likely to engage
in acts of sexual violence if released. See Mo. Rev. Stat. § 632.498.2-.4. Whether or
not the department of mental health applies the correct legal standard in conducting
its annual review of the committed person, or authorizes a petition for release in the
name of the director, the committed person is entitled to review of his continued
detention by an independent judicial officer. The state court is duty-bound to apply
the correct legal standards regardless of the director’s potential shortcomings in
carrying out his functions under state law. See id. § 632.498.4. If the state court (or
a jury) determines based on the evidence that the person is no longer likely to engage
in acts of sexual violence, then the court must order him conditionally released. Id.
§ 632.498.5(4). And despite the asserted flaws in the department’s program for
releasing low-risk residents into less restrictive housing, the state court has final
authority to determine what conditions should apply, including whether a resident
should be released without discharge or into the community. See id. § 632.505.3.

       The availability of these procedures is sufficient to vindicate a resident’s liberty
interest in gaining release from detention once the reasons that justified the
commitment dissipate. That the Act provides additional opportunities to facilitate
release, and that state officials allegedly have failed to implement them properly, does
not run afoul of substantive due process.

       The residents insist that once the State adopted the Act, they enjoyed “state-
created liberty interests” that could not be infringed. This argument confuses
procedural due process and the concept of substantive due process. “[S]tate statutes
may create liberty interests that are entitled to the procedural protections of the Due
Process Clause of the Fourteenth Amendment.” Vitek v. Jones, 445 U.S. 480, 488
(1980) (emphasis added). The residents, however, claim a substantive due process
right to certain actions by state officials. Fundamental rights or liberties that are

                                           -7-
protected by substantive due process are those implicit in the concept of ordered
liberty or derived from our Nation’s history and tradition; they are not created by
States. Steele v. Cicchi, 855 F.3d 494, 501 (3d Cir. 2017). The residents also contend
that a periodic review requirement under state law was a “key reason” why the
Supreme Court upheld a civil commitment scheme for sexually violent predators in
Hendricks, so periodic review of the sort they demand must be required by
substantive due process. The Court in Hendricks, however, cited periodic review as
evidence that the Kansas statute was not “punitive” for purposes of a different claim
under the Double Jeopardy Clause. 521 U.S. at 364. The residents here invoke only
substantive due process in their appeal, and they have not demonstrated the violation
of a fundamental right under that rubric.

       Alternatively, we agree with the district court that the rationale of our decision
in Karsjens that Minnesota’s commitment scheme did not shock the conscience
dictates the same outcome here. In Karsjens, the district court had determined the
Minnesota program was unconstitutional as applied for six reasons:

      (1) Defendants do not conduct periodic independent risk assessments or
      otherwise evaluate whether an individual continues to meet the initial
      commitment criteria or the discharge criteria if an individual does not
      file a petition; (2) those risk assessments that have been performed have
      not all been performed in a constitutional manner; (3) individuals have
      remained confined [in the program] even though they have completed
      treatment or sufficiently reduced their risk; (4) discharge procedures are
      not working properly [in the program]; (5) although section 253D
      expressly allows the referral of committed individuals to less restrictive
      alternatives, this is not occurring in practice because there are
      insufficient less restrictive alternatives available for transfer and no less
      restrictive alternatives available for initial commitment; and (6) although
      treatment has been made available, the treatment program’s structure has
      been an institutional failure and there is no meaningful relationship
      between the treatment program and an end to indefinite detention.


                                          -8-
Karsjens, 845 F.3d at 402-03. This court concluded that “[n]one of the six grounds
upon which the district court determined the state defendants violated the class
plaintiffs’ substantive due process rights in an as-applied context satisfy the
conscience-shocking standard.” Id. at 410.

       The deficiencies the district court found in the Missouri program are no more
egregious or outrageous than those at issue in Karsjens. The district court found that
Missouri’s annual reviewers have not been applying the correct legal standard for
assessing eligibility for conditional release, resulting in prolonged confinement of
low-risk residents. But Minnesota had no periodic risk assessments whatsoever. The
district court here found that Missouri officials have not released low-risk residents
into less restrictive facilities or created procedures to that end. “[I]n practice,”
however, Minnesota did not release low-risk residents into less restrictive facilities
either. Id. at 402. The district court here found that the director of the Missouri
department of mental health had not authorized even one resident to petition for
conditional release, and that state officials were “stalling or blocking” authorizations
for qualified residents. Yet Minnesota had no requirement that officials take any
“affirmative action” at all, “such as petition for a reduction in custody, on behalf of
individuals who no longer satisfy the criteria for continued commitment.” Id.
Because the shortcomings cited by the district court in Missouri mirror those that
Karsjens held were not conscience-shocking in Minnesota, the district court correctly
reasoned that the as-applied substantive due process claims should be dismissed.

       To avoid this conclusion, the residents argue that the court in Karsjens
incorrectly applied an intent-to-harm standard for conscience-shocking conduct, and
that “deliberate indifference” to liberty is the proper standard. Karsjens is not entirely
clear on this point. The issue was not raised in briefs before the Karsjens panel
because the plaintiffs disputed that the conscience-shocking standard applied at all.
The Karsjens opinion, id. at 408, did refer to conduct inspired by “malice or sadism”
(language associated with intent to harm), but it also framed the issue as whether the

                                           -9-
defendants’ actions were “egregious or outrageous,” a phrase that aligns with the
understanding that deliberate indifference involves “patently egregious” conduct. See
Lewis, 523 U.S. at 850-51.

       The residents submit that a deliberate indifference standard must apply here,
because the defendant officials had sufficient time to reflect and deliberate about their
actions. They point to the statement in Lewis that the deliberate indifference standard
“is sensibly employed only when actual deliberation is practical.” Id. at 851. The
State responds that decisions from other circuits have suggested that something more
akin to an intent-to-harm standard may apply when officials, after deliberating, are
forced to choose among competing, legitimate interests. See Hunt v. Sycamore Cmty.
Sch. Dist. Bd. of Educ., 542 F.3d 529, 541-42 (6th Cir. 2008); Matican v. City of New
York, 524 F.3d 151, 158-59 (2d Cir. 2008); Schieber v. City of Philadelphia, 320 F.3d
409, 419-20 (3d Cir. 2003). The State suggests that the need for officials to balance
the competing obligations of community safety and proper treatment makes the
intent-to-harm standard appropriate here. We need not resolve the dispute over the
applicable standard.

       We reject the residents’ argument because the alleged actions of the defendant
officials do not shock the conscience under either standard. There is no showing of
malicious or sadistic intent to harm, and what was not “egregious” conduct in
Karsjens, 845 F.3d at 411, is not “patently egregious” deliberate indifference here.
The director’s alleged failure to authorize petitions for release does not amount to
conscience-shocking deliberate indifference to liberty when a resident may petition
a court directly for release and trigger the same type of proceeding on whether
commitment is still justified. See Mo. Rev. Stat. §§ 632.498.2-.5, .501. The
nonexistence of less restrictive housing options, the district court explained, stems
largely from inadequate funding. Since at least 2010, state officials have “requested
money to be placed in the state’s budget for establishing cottages in the community,
in order to implement the community reintegration phase,” but the governor has not

                                          -10-
proposed that funding to the state legislature. Those efforts by state officials to
secure funding run counter to a conclusion of deliberate indifference by the
defendants. See Cullor v. Baldwin, 830 F.3d 830, 838-39 (8th Cir. 2016). The
district court traced the problem of annual reviewers applying incorrect standards to
a lack of legal training. This fault is hardly commendable, but it is insufficient to
prove conscience-shocking deliberate indifference to a resident’s liberty when the
annual review is presented to a state court that is charged with reviewing the matter
independently under correct legal standards. As in Karsjens, we conclude that the
alleged shortcomings in the State’s sexually violent offender program do not shock
the conscience.

        None of this means, of course, that individual residents are precluded from
petitioning for release on their own, outside the framework of this class action
litigation. The district court, for example, was particularly concerned that aged and
infirm residents may no longer pose a risk of committing predatory acts of sexual
violence if released. We hold only that the concept of substantive due process does
not justify a finding of class-wide liability based on the alleged deficiencies of state
officials that were advanced in this action.

                                           B.

      The residents also appeal the district court’s dismissal of their state-law claims
with prejudice. The court concluded that the residents had abandoned these claims,
and we conclude that there is no reversible error.

       The residents pleaded claims under the Missouri Constitution, but never
developed them. The residents last mentioned the state constitution in their
memorandum in opposition to the state officials’ motion to dismiss, and even there,
the references came under headings of “Fourteenth Amendment Substantive Due
Process.” After the district court issued its initial liability order, the residents moved

                                          -11-
for clarification, but never raised the state-law claims. The amended liability order
denied all prayers for relief except for the claim that the treatment program was
“unconstitutional as applied and deprive[d] Plaintiffs and the Treatment Class of their
constitutional rights.” The residents had another chance to resurrect the state-law
claims when the district court requested supplemental briefing in light of Karsjens,
but they bypassed that opportunity as well. On this record, it was not error for the
district court to infer the residents had abandoned their state-law claims. The district
court did not abuse its discretion in denying the motion to alter or amend the
judgment.

                                   *       *       *

      The judgment of the district court is affirmed.
                     ______________________________




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