Cole v. Baldwin et al

Filing 9

INITIAL Review Order Dismissing Case: 2 Application to proceed in forma pauperis is granted. Plaintiffs pro se Complaint 1 is reviewed without payment of fee; however, upon initial review, the Court is persuaded that Mr. Cole has failed to sta te any claims upon which relief can be granted. Accordingly, for the reasons set out above, his Complaint must be dismissed. Signed by Senior Judge Donald E OBrien on 2/21/2014. (copy w/nef, complaint, and appeal packet mailed to pro se plaintiff) (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
JAMIE LEE COLE,
Plaintiff,

No. 14-CV-3007-DEO

v.

INITIAL REVIEW ORDER

JOHN BALDWIN, STEVE
DRAHAZOL, LORI COOK, KATIE
DEAL, DAVE BAUMGARTNER,
NETTY RINSHAW, ANNE BABBE,
MONICA ACKLEY, JIM
MCKINN[E]Y, BRIAN SPANNAGLE,
CONTRACT ATTORNEY IN FORT
DODGE, DR. KELLER, SGT.
PALMER, JASON HAWKINS, MAJOR
WAGERS, CAPTAIN MAYO,
CONTRACT ATTORNEY IN
ANAMOSA, CONTRACT ATTORNEY
IN OAKDALE,
Defendants.

____________________
I.

INTRODUCTION
This matter is before the Court on Jamie Lee Cole’s

(hereinafter Mr. Cole) 42 U.S.C. § 1983 Complaint (Docket No.
1) against the above named Defendants (both known and unknown)
and his Motion to Proceed In Forma Pauperis (Docket No. 2).
Mr. Cole alleges a number of violations against the above
named Defendants.

II.

BACKGROUND
At the outset, the Court notes that Mr. Cole has brought

a number of previous lawsuits in Federal Court.
On November 5, 2004, Mr. Cole filed a 28 U.S.C. § 2254
application in the Northern District of Iowa. On December 14,
2004, Judge Linda Reade denied Mr. Cole’s Petition, finding
that:
the petitioner clearly states in his
application for a writ of habeas corpus
that he hasn’t had a response to his
application for post-conviction relief.
In addition, it appears that his court
appointed attorney currently is looking
into whether the petitioner is able to
assert claims in a post-conviction relief
action pursuant to Chapter 822 of the Iowa
Code. Based on the petitioner’s statements
and the records of the Iowa District Court
In and For Del[a]ware County, the court
finds the petitioner failed to adequately
allege that he presented his claims to the
state courts as he is required to do if he
seeks habeas corpus relief. See 28 U.S.C.
§ 2254(b)(1)(A); Carmichael v. White, 163
F.3d 1044, 1045-46 (8th Cir. 1998). See
also Iowa Code § 822.1, et al. (providing
for postconviction relief). Further, the
court finds the petitioner failed to show
good cause for any failure to present his
claims to the highest state court and
actual prejudice as a result of the alleged
constitutional violation or a potential for
the fundamental miscarriage of justice.
See Coleman, 501 U.S. at 750; Keithley, 43
F.3d at 1218; Maynard, 981 F.2d at 984;
2

Buckley, 892 F.2d at 718. Because it is
clear 28 U.S.C. § 2254(b) bars the
petitioner’s action, the application for a
writ of habeas corpus shall be dismissed
summarily under Rule 4 of the Rules
Governing Section 2254 Cases.
See 04-CV-2086-LRR, Docket No. 8, p. 7-8.
Mr. Cole filed a second 28 U.S.C. § 2254 Petition on
December 14, 2012.

Judge Reade again denied Mr. Cole’s

claims, stating:
In his current application for a writ of
habeas corpus, the petitioner again admits
that the Iowa Supreme Court never had an
opportunity
to
review
his
claims.
Additionally, a review of his state court
cases, including his underlying criminal
case and post-conviction relief actions,
indicates
that
the
petitioner
never
exhausted his claims in the appropriate
state forum. Therefore, it is appropriate
to dismiss the petitioner’s action for
failing to comply with 28 U.S.C. §
2254(b)(1)(A). Moreover, under 28 U.S.C.
§ 2244(d)(1)(A), the petitioner had one
year from the date on which his judgment
became final to file an application for a
writ of habeas corpus, but he waited until
November 14, 2012 to seek habeas corpus
relief. Such date is well beyond the one
year
period.
Consequently,
the
petitioner’s habeas corpus action is barred
by the applicable statute of limitations.
See 28 U.S.C. § 2244(d)(1)(A). Lastly, a
review of the petitioner’s state court
cases
indicates
that
his
current
confinement is not related to the 2004
conviction that he complains about in this
3

action.
The petitioner is not attacking
the validity of his current confinement.
Rather, he is contesting the possible
consequences that he might face if he fails
to register as a sex offender, which is a
remedial
requirement
of
his
2004
conviction.
12-CV-0125-LRR, Docket No. 2, p. 2-3.
Mr. Cole has also previously filed 42 U.S.C. § 1983
Complaints.

On May 25, 2004, Mr. Cole filed a Complaint

alleging that his sentence was inappropriate and did not
accord with his plea agreement.

Mr. Cole asked Judge Mark W.

Bennett to order him released from the half way house he was
then residing in.

Judge Bennett ruled that:

In this 42 U.S.C. § 1983 action, the plain
language of the complaint demonstrates the
plaintiff is challenging the validity of
his confinement...
The relief sought by
the plaintiff is not available in a 42
U.S.C.
§
1983
action.
Thus,
the
plaintiff’s claim under 42 U.S.C. § 1983
shall be dismissed. Construing the action
as an application for habeas corpus relief
under 28 U.S.C. § 2254, the plaintiff’s
claim shall be dismissed for failure to
meet the exhaustion requirements of 28
U.S.C. § 2254(b)(1).
Accordingly, this
action shall be dismissed.
28 U.S.C. §
1915(e).
04-CV-1024-MWB, Docket No. 2, p. 2-3.

4

On November 16, 2012, Mr. Cole filed another pro se
document in the Northern District of Iowa, which Judge Reade
liberally construed as a 42 U.S.C. § 1983 Complaint.

In the

document, Mr. Cole alleged that he should be afforded a single
room, that he was being harassed, and that his family was not
helping him as much as he felt they should.

Judge Reade

denied that Complaint, stating:
The matter before the court is the
plaintiff’s letter, which the clerk’s
office construed as a complaint under 42
U.S.C. § 1983. The clerk’s office filed
such complaint on November 20, 2012. The
petitioner did not submit the required
filing fee or an application to proceed in
forma pauperis. See 28 U.S.C. § 1914(a)
(requiring $350.00 filing fee for civil
actions, except that on application for a
writ of habeas corpus the filing fee is
$5.00); 28 U.S.C. § 1915 (explaining in
forma pauperis proceedings). Further, the
petitioner’s letter is not sufficient to
commence an action. See Fed. R. Civ. P.
3 (indicating a civil action is commenced
by filing a complaint); see also Fed. R.
Civ. P. 8 (addressing general rules of
pleading); Fed. R. Civ. P. 11 (requiring
a pleading to be signed).
Accordingly,
this action is dismissed without prejudice.
12-CV-0117-LRR, Docket No. 2, p. 1.

5

III.

PROCEED IN FORMA PAUPERIS
First, Mr. Cole requests that he be allowed to proceed in

forma pauperis.
is $350.00.

The filing fee for a 42 U.S.C. § 1983 action

28 U.S.C. § 1914(a).

In forma pauperis status

allows a plaintiff to proceed without incurring filing fees or
other court costs.

In order to qualify for in forma pauperis

status, a plaintiff must provide this Court an affidavit1 with
the following statements:

(1) statement of the nature of the

action, (2) statement that plaintiff is entitled to redress,
(3) statement of the assets plaintiff possesses, and (4)
statement that plaintiff is unable to pay filing fees and
court

costs

1915(a)(1).2
requirement:

or

give

security

Prisoners

must

therefor.
also

meet

28
an

U.S.C.

§

additional

they must submit a certified copy of their

prisoner trust fund account statement for a 6-month period
prior to the filing of the complaint. 28 U.S.C. § 1915(a)(2).

1

An affidavit is a “voluntary declaration of facts
written down and sworn to by the declarant before an officer
authorized to administer oaths.” Black’s Law Dictionary (9th
ed. 2009), affidavit.
2

Entitled to redress means that the plaintiff is
entitled to relief or is entitled to a judgment in his or her
favor.
6

Plaintiff’s Application does not meet all of the requirements
of 28 U.S.C. § 1915(a).

Specifically, Mr. Cole has failed to

file a certified copy of his prisoner trust account. Instead,
Mr. Cole has filed a letter stating that the prison officials
failed to promptly give him a copy of his prisoner trust
account when he requested one.

However, Mr. Cole admits he

only waited a few days between requesting the paperwork and
filing the present law suit.
The failure to file a prison trust account would normally
be fatal to an application to proceed in forma pauperis.
However, the Court is persuaded that had Mr. Cole filed a
prisoner trust account document, it would have shown he is
indigent.

As will be set out further below, Mr. Cole’s

Complaint fails to set out a claim upon which relief can be
granted.

Accordingly, the Court will grant in forma pauperis

status for the limited purpose of conducting an initial review
of Mr. Cole’s Complaint.
Therefore, Plaintiff’s Pro Se Motion for Leave to Proceed
in Forma Pauperis is granted.

The Complaint filed at Docket

No. 1 will proceed to initial review without collection of a
filing fee.

The Clerk of Court shall deliver a copy of this
7

Order and the filed petition to the Fort Dodge Correctional
Facility care of the Plaintiff.
Once any portion of a filing fee is waived, a court must
dismiss the case if a Plaintiff’s allegations of poverty prove
untrue or the action in question turns out to be frivolous,
malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief.
IV.

28 U.S.C. § 1915(e)(2).

42 U.S.C. § 1983 INITIAL REVIEW STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires “a short

and plain statement of the claim showing that the pleader is
entitled

to

relief.”

Pro

se

complaints,

no

matter

how

“inartfully pleaded are held to less stringent standards than
formal pleadings as drafted by a lawyer.” Hughes v. Rowe, 449
U.S. 5, 9 (1980) (internal citations omitted).
Although it is a long-standing maxim that a complaint’s
factual allegations are to be accepted as true at the early
stages of a proceeding, this does not require that a court
must entertain any complaint no matter how implausible.

The

facts pled “must [still] be enough to raise a right to relief
above the speculative level . . . .”
8

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007).

In other words, the claim

to relief must be “plausible on its face.”

Id. at 570.

A

claim is only plausible if a 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, 129 S. Ct. 1937, 1949 (2009).

Where the complaint

does “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. at 1950 (citing Fed. Rule Civ. Proc. 8(a)(2)).

In

addition, “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions.”

Id. at 1949.

42 U.S.C. § 1983 provides:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
District of Columbia, subjects, or causes
to be subjected, any citizen of the United
States
or
other
person
within
the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress . . . .

9

V.

ISSUE
In his pro se Complaint, Mr. Cole sets out a multitude of

claims against a variety of Defendants.

Accordingly, the

Court will set out each claim along with the appropriate
analysis below.
VI.

ANALYSIS
A. Dave Baumgartner, Brian Spannagle and Steve Drahazol,
Mr. Cole’s first claim is against Dave Baumgartner, Brian

Spannagle and Steve Drahazol.

It appears from Mr. Cole’s

statements that Dave Baumgartner was Mr. Cole’s original
criminal attorney, Brian Spannagle is representing Mr. Cole in
a post-conviction action in Iowa State Court, and Mr. Drahazol
is currently representing Mr. Cole in an unknown Iowa State
Court proceeding.3

Mr. Cole claims that Mr. Baumgartner told

him he would only serve a three year prison sentence.

The

Court construes this as an allegation that Mr. Baumgartner was
ineffective.

Mr. Cole alleges that neither Mr. Spannagle or

Mr. Drahazol are communicating with him.

3

The Court also

Mr. Cole restated his claim against Mr. Drahazol in a
supplemental letter he filed on February 11, 2014. See Docket
No. 8.
10

construes this as an allegation of ineffective assistance of
counsel against Mr. Spannagle and Mr. Drahazol.
42 U.S.C. § 1983 specifically provides for a federal
cause of action against a "person" who, under color of state
law, violates another's federal rights.

In Polk Cnty. v.

Dodson, 454 U.S. 312 (1981), the United States Supreme Court
affirmed a ruling by Judge Vietor dismissing a 42 U.S.C. §
1983 for ineffective assistance of counsel on the grounds that
a defense attorney is not a state actor.

In that case, the

Supreme Court held that "a public defender does not act under
color of state law when performing a lawyer's traditional
functions

as

proceeding."

counsel

to

a

defendant

in

Polk Cnty, 454 U.S. at 325.

a

criminal

The Court noted

that a public defender differs from the typical government
employee and state actor.

While performing their duties, a

public defender retains all of the essential attributes of a
private

attorney,

"professional

including,

independence,"

most
which

constitutionally obliged to respect.

importantly,
the

State

Id., at 321-322.

his
is
A

criminal lawyer's professional and ethical obligations require
him to act in a role independent of and in opposition to the
11

State.

Id., at 318-319.

representing

an

indigent

The Court concluded that when
defendant

in

a

state

criminal

proceeding, the public defender does not act under color of
state law for purposes of § 1983 because they are "not acting
on behalf of the State; he is the State's adversary."
at 323, n. 13.

Id.,

See also Bruce v. Fletcher, 584 F. Supp. 5, 6

(W.D. Mo. 1984).4
Based on that precedent, which has been affirmed many
times over, the Court cannot allow Mr. Cole's 42 U.S.C. § 1983
Complaint against Dave Baumgartner, Brian Spannagle or Steve
Drahazol to proceed.

If Mr. Cole has a complaint against an

attorney who is representing him in a pending state court
matter, Mr. Cole should write a letter to the state court
judge in his case, clearly setting out his complaint against
his attorney. (Similarly, if Mr. Spannagle has been appointed
to represent Mr. Cole on an appeal before the Iowa Supreme
Court or the Iowa Court of Appeals, Mr. Cole should write the

4

This analysis assumes that Mr. Baumgartner and Mr.
Drahazol were acting as public defenders.
Of course, if
either was a private, retained defense attorney, there is no
possibility that they would be liable under 42 U.S.C. § 1983
because there would be no credible argument they were a state
actor.
12

Iowa Supreme Court setting out his complaint against his
appointed attorney.)
B.

Monica Ackley

Mr. Cole’s next complaint is against Monica Ackley.
Judge Ackley is a District Judge in Iowa’s 1st Judicial
District.

Mr. Cole alleges that Judge Ackley imposed a

sentence

greater

than

that

stipulated

to

in

his

plea

agreement.
The Supreme Court has considered the doctrine of judicial
immunity in the context of 42 U.S.C. § 1983 actions and has
stated:
Like other forms of official immunity,
judicial immunity is an immunity from suit,
not just from ultimate assessment of
damages.
Mitchell v. Forsyth, 472 U.S.
511, 526 (1985).
Accordingly, judicial
immunity is not overcome by allegations of
bad faith or malice, the existence of which
ordinarily cannot be resolved without
engaging in discovery and eventual trial.
Pierson v. Ray, 386 U.S. [547], at 554
(“[I]mmunity applies even when the judge is
accused
of
acting
maliciously
and
corruptly”).
See
also
Harlow
v.
Fitzgerald, 457 U.S. 800, 815-819 (1982)
(allegations of malice are insufficient to
overcome qualified immunity).
Rather, our cases make clear that the
immunity is overcome in only two sets of
circumstances.
First, a judge is not
13

immune from liability for nonjudicial
actions, i.e., actions not taken in the
judge's judicial capacity.
Forrester v.
White, 484 U.S. [216], at 227-229; Stump v.
Sparkman, 435 U.S. [349], at 360. Second,
a judge is not immune for actions, though
judicial in nature, taken in the complete
absence of all jurisdiction.
Id., at
356-357; Bradley v. Fisher, 13 Wall., at
351.
Mireles v. Waco, 502 U.S. 9, 11-12 (1991).

The Court went

onto say that, “[i]f judicial immunity means anything, it
means that a judge will not be deprived of immunity because
the action he took was in error ... or was in excess of his
authority.”
omitted).

Mireles, 502 U.S. at 12-13 (internal citations
Judge

Ackley

was

acting

appointment when she sentenced Mr. Cole.

within

her

judicial

Additionally, there

is no allegation that Judge Ackley did not have jurisdiction
to sentence him.

Accordingly, Judge Ackley has judicial

immunity, even if her sentence was somehow in excess of what
was statutorily appropriate. Mr. Cole’s complaint against her
must be dismissed.
C.

Netty Rinshaw, Katie Deal, and Lori Cook

Mr. Cole alleges that Netty Rinshaw, Katie Deal, and Lori
Cook are treatment providers at the Fort Dodge Correctional

14

Facility.

Mr. Cole alleges that they threatened to move him

to different treatment classifications.5
To state a claim under 42 U.S.C. § 1983, Mr. Cole must
allege

that

authority,

a

person,

infringed

acting

his

under

rights

or

the

color

committed

of

state

some

other

constitutional violation against him. Correction officers and
treatment providers are within their rights to change his
treatment classification. (In fact, it is part of their job).
To amount to a constitutional violation, Mr. Cole would have
to

allege

that

classification
deficient

their
was

reason,

decision

motivated
i.e.,

they

or
by

threat
some

were

to

change

his

constitutionally

being

deliberately

indifferent to a serious medical need, they were making their
decision on the basis of race or gender, or they were doing it
in retaliation for a protected activity.
to make any such allegation.

Mr. Cole has failed

Accordingly, he has failed to

state a claim for which relief can be granted under 42 U.S.C.
§ 1983 and his Complaint against Netty Rinshaw, Katie Deal and
Lori Cook must be dismissed.
5

He also alleges they refused to put him in contact with
the U.S. Marshal’s Service. However, he makes no mention of
how that would constitute a constitutional violation.
15

D.

John Baldwin

Mr. Cole’s next allegation is against John Baldwin, the
Director of the Iowa Department of Corrections.

Mr. Cole

alleges that Mr. Baldwin is corrupt; but, Mr. Cole does not
support that allegation in any way or tie it to 42 U.S.C. §
1983.

Accordingly, Mr. Cole has failed to state a claim and

his Complaint against Mr. Baldwin must be dismissed.
E.
Mr.

Dr. Anne Babbe
Cole’s

next

claim

is

against

Anne

Babbe,

psychologist at the Anamosa Correctional Facility.

a

Mr. Cole

alleges that Dr. Babbe assigned Mr. Cole to a “mental health
status” and ignored him.

Again, employees at the Department

of Corrections have the responsibility to make recommendations
regarding Mr. Cole’s treatment. Mr. Cole has failed to allege
how Dr. Babbe’s actions constitute a constitutional violation
that would give rise to a claim under 42 U.S.C. § 1983.
Accordingly, Mr. Cole’s claims against Dr. Babbe must be
dismissed.
F.

James McKinney

Mr. Cole’s next claim is that James McKinney, the Warden
at

the

Fort

Dodge

Correctional
16

Facility,

is

wrongly

imprisoning him.

As Judge Bennett previously told Mr. Cole,

in 04-CV-1024-MWB, Docket No. 2, p. 2-3 quoted above, an
inmate cannot challenge the validity of their conviction
through a 42 U.S.C. § 1983 Complaint. Accordingly, Mr. Cole’s
claim

against

Mr.

McKinney

cannot

succeed

and

must

be

dismissed.6
G.

Dr. Gregory Keller

Mr. Cole’s next claim is against Dr. Keller, a treatment
provider at the Clarinda Mental Health Institute.
alleges

that

Dr.

Keller

changed

Mr.

Cole’s

Mr. Cole
diagnosis.

However, as discussed above, a treatment provider has an
obligation to treat a patient.

Mr. Cole does not allege the

treatment was deliberately indifferent or that it violated his
rights.

Accordingly, Mr. Cole has failed to state a claim

upon which relief can be granted and his Complaint against Dr.
Keller must be dismissed.

6

Additionally, Mr. Cole filed an addendum to his
Complaint, Docket No. 8, which states that he has been
transferred to the Iowa Medical Classification Center in
Coralville. Accordingly, his Complaint against Mr. McKinney
is also moot.
17

H.

Jason Hawkins, Major Mayo, Manager Wagers, Sgt.

Palmer and Other Unknown Attorneys
Mr. Cole’s remaining claims are against a variety of
treatment counselors, corrections officers and law enforcement
personal.

The claims are similar to those set out above.

Mr.

Cole claims that his medical classification has changed, that
he has not been given certain information he requested, and
that he has not been allowed to contact the U.S. Marshal’s
Service. However, Mr. Cole has failed to articulate any claim
that would be cognizable under 42 U.S.C. § 1983. Accordingly,
his complaints against these individuals must be dismissed.
I.

Docket No. 8, Supplemental Letter

On February 11, 2014, Mr. Cole filed a supplemental
letter.

In his letter, he asks the Court about starting a

Congressional Investigation into his situation or having the
Iowa Ombudsman start an internal investigation. Both of those
things are beyond the power of this Court.

Accordingly, to

the extent that Mr. Cole’s supplement sets out additional
claims, they must be denied.

18

VII.

CONCLUSION
Plaintiff’s pro se Motion for Leave to Proceed In Forma

Pauperis is granted. Plaintiff’s pro se Complaint (Docket No.
1) is reviewed without payment of fee; however, upon initial
review, the Court is persuaded that Mr. Cole has failed to
state

any

claims

upon

which

relief

can

be

granted.

Accordingly, for the reasons set out above, his Complaint
(Docket No. 1) must be dismissed.
IT IS SO ORDERED this 21st day of February, 2014.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

19