Wright v. Kelley et al

Filing 48

ORDER denying 29 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 33 Motion for Summary Judgment; denying 43 Motion to Dismiss. Pursuant to the partial granting of the Motion for Summary Judgment, Defendants Bryon Kelley, Cindy Olson, and Albin Carlson are hereby dismissed from the case. Signed by Senior Judge Donald E OBrien on 9/30/13. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
SYVENO JEWELL WRIGHT
Plaintiff,

No. 11-CV-4003-DEO

BRYON KELLEY, CINDY OLSON,
ALBIN CARLSON, JANNE JOHNSON
AND MARY BENSON,

ORDER ON DEFENDANT’S MOTION
TO DISMISS, MOTION FOR
SUMMARY JUDGMENT AND
PLAINTIFF’S MOTION FOR
VOLUNTARY DISMISSAL

vs.

Defendants.
____________________
I.

INTRODUCTION AND BACKGROUND
Currently before the Court is Defendants’ Motion to

Dismiss
Judgment

(Docket

No.

(Docket

[hereinafter

Mr.

(Docket No. 43).

No.

29),
33),

Wright]

Defendants’
and
Motion

Motion

Plaintiff
for

for

Syveno

Voluntary

Summary
Wright’s

Dismissal

Mr. Wright is an involuntarily committed

patient at the Civil Commitment Unit for Sex Offenders (CCUSO)
in Cherokee, Iowa.1

1

The parties appeared for a hearing on the

The patients at CCUSO “have served their prison terms
but in a separate civil trial have been found likely to commit
further violent sexual offenses.”
Iowa Department of Human
Services
Offer
#401-HHS-014:
CCUSO,
1
http://www.dhs.state.ia.us/docs/11w-401-HHS-014-CCUSO.pdf,
last visited September 30, 2013.

pending motions on September 16, 2013.2

After listening to

the parties’ arguments the Court took the matters under
consideration and now enters the following.
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As noted above, Mr. Wright is a patient civilly committed
as a sexually violent predator.

He resides at CCUSO, the

sexually violent predator unit of the Iowa Department of Human
Services located in Cherokee, Iowa.

Mr. Wright filed the

present 42 U.S.C. § 1983 pro se Complaint on January 7, 2011.
On April 21, 2011, this Court entered an order directing the
parties to review Mr. Wright’s Complaint to assess whether it
should be joined to 05-CV-4065, a class action made up of
CCUSO patients.

On June 15, 2011, Magistrate Zoss entered an

Order consolidating Mr. Wright’s Complaint with the class
action, 05-CV-4065.

Docket No. 12.

Prior to approving a

settlement agreement in the class action, this Court severed
Plaintiff’s claim.
31,

2012,

the

Wright’s claim.

05-CV-04065, Docket No. 140.

Court

conducted

an

initial

On August

review

of

Mr.

The Court appointed Bob Tiefenthaler as Mr.

2

At the hearing the Court verbally denied Defendants’
Motion to Bifurcate/Sever, Docket No. 26. The parties agreed
that Motion had become moot.
2

Wright’s

counsel,

granted

in

forma

pauperis

status,

and

allowed Mr. Wright’s pro se Complaint, Docket No. 18, to
proceed (Docket No. 17).
In the pro se Complaint, Mr. Wright alleged:
On November 16, 2009... I was threatened
verbally w/death, and “STABBED” by Patient
Daniel Paul Whitney with... a black bic ink
pen... Staff... failed or refused to do
their
statutory
responsibility
in
protecting me from harm... Janne Johnson,
who look[s] for ways to save the State of
Iowa money, said, “its just a superficial
injury that you sustained, you’ll be okay.”
...
Docket No. 18, p. 2-3.
On October 19, 2012, Mr. Wright filed a second pro se
Complaint

(12-CV-4095,

Complaint, Mr. Wright

Docket

No

1,

Att.

1).

alleged:

Plaintiff complained to Defendant Janne
Johnson, who is no longer employed at
CCUSO,
[that]
Plaintiff
was
having
incontinence issues defendant Johnson’s
medical diagnosis was that Plaintiff had
drank too much water before bedtime... As
time progressed, Plaintiff’s symptoms of
incontinence progressed and became worse...
when Plaintiff had to urinate, Plaintiff
used a plastic container because Plaintiff
could not make it to the restroom...
Docket No. 24, p. 2-3.

3

In

that

Mr. Wright alleges that Nurse Benson did not detect Mr.
Wright’s prostate cancer until she conducted a blood test
associated with a routine physical in February of 2011.

Id.

Mr. Wright also alleged that Defendant Mary Benson refused to
perform or provide adequate prostate exams. Id., p. 3.
On November 28, 2012, the Court entered an Initial Review
Order which consolidated Mr. Wright’s second pro se Complaint
with the above captioned case (Docket No. 23).

On November

28, 2012, the Defendants filed a Motion to Sever the two
claims (Docket No. 26).

The Court denied that Motion during

the hearing on September 16, 2013.
The

relevant

factual

allegations

will

be

discussed

further below.
III.

ISSUES
As

stated

Defendants'

above,

Motion

to

currently
Dismiss

before
[MTD]

the

(Docket

Court

are

No.

29),

Defendants' Motion for Summary Judgement [MSJ] (Docket No.
33), and Mr. Wright’s Motion for Voluntary Dismissal (Docket
No. 43).

In the MTD, the Defendants argue that Defendant

Janne Johnson should be dismissed from this case because any

4

claim against her is barred by the personal injury statute of
limitations.
In the MSJ, the Defendants make three primary arguments.
First, the Defendants argue that they were not deliberately
indifferent in failing to protect Mr. Wright in reference to
the

fight/stabbing

that

occurred

on

November

16,

2009.

Second, the Defendants argue that they were not deliberately
indifferent in providing medical care leading up to Mr.
Wright’s prostate cancer.

Third, the Defendants argue that

they are entitled to qualified immunity and are not personally
responsible for Mr. Wright’s damages.
In the Voluntary Motion to Dismiss, Mr. Wright requests
that he be allowed to dismiss all claims related to the
November 16, 2009, incident without prejudice. The Defendants
filed a resistence, Docket No. 44, which argues that the Court
should adjudicate that claim in the context of the Motion for
Summary Judgment and deny the Voluntary Motion to Dismiss.
Accordingly, it is agreed by the parties that Mr. Wright’s
claim regarding the November 16, 2009, fight will not proceed.
The question remaining is whether the Court will dismiss it

5

without prejudice or whether the Court will dismiss it on the
merits with prejudice.
The Court will consider each issue below.
IV.

ANALYSIS
A.

Motion to Dismiss Janne Johnson

This argument pertains exclusively to one Defendant,
Janne Johnson.

As Ms. Kraemer, the Defendants’ attorney,

explained during the hearing, Ms. Johnson has not worked for
CCUSO for a number of years.

Ms. Kraemer stated that the

numerous law suits arising out of Ms. Johnson’s tenure at
CCUSO is negatively impacting Ms. Johnson’s ability to get
professional insurance, etc.

Consequently, the Defendants

vigorously argue that the Court should dismiss Ms. Johnson
from this case.
claim

against

Specifically, the Defendants argue that any
Ms.

Johnson

is

barred

by

the

statute

of

limitations.
The Court is aware of the imposition these lawsuits are
on Ms. Johnson, and has sympathy for her situation.
the

Court

is

inappropriate

persuaded
to

that

dismiss

Ms.

in

this
Johnson

case,

it

because

intimately involved in the treatment of Mr. Wright.
6

However,
would
she

be
was

As will be discussed in greater detail below, Mr. Wright
alleges that Ms. Johnson was involved in his treatment at
CCUSO several years ago.

Mr. Wright states that he told Ms.

Johnson about certain urinary issues, but she ignored him.
Docket No. 42, Ex. 1, p. 1.

Mr. Wright alleges that his

urinary issues were so severe, he could not make it through
the night without having to relieve himself in a bedside
receptacle.

Id.

Mr. Wright states that even though he

complained of his weak bladder to Ms. Johnson, she threatened
him with disciplinary action for relieving himself in a
‘coffee jar’ during the night.

Id.

Mr. Wright alleges that

these were early indications of his prostate problems, which
eventually became cancer.

See Docket No. 42, Ex. 1, p. 2.

It is undisputed in the record that in 2011, Mr. Wright
was diagnosed with prostate cancer and that to treat that
cancer, his prostate was removed.

Docket No. 33, Att. No. 1,

p. 9-10. Mr. Wright alleges that had he received proper care,
his cancer would have been discovered much sooner, and could
have

been

treated

with

less

invasive

means,

including

radiation. This allegation may or may not be supported by the
statements of Dr. Tracy, Mr. Wright’s treating physician, who
7

apparently

conversed

with

both

Mr.

Tiefenthaler

and

Ms.

Kraemer, but that conversation/deposition has not been made
part of the record.

See the disagreement between counsel:

Defendant’s Statement of Facts, Docket No. 33, Att. No. 1, p.
10; Plaintiff’s Statement of Facts, Docket No. 42, Att. No. 1,
p. 2-4; Defendant’s Reply to Statement of Disputed Facts,
Docket No. 45, Att. No. 1, p. 1-3.
As discussed above, the damage Mr. Wright complains of is
advanced cancer which required surgical treatment. Mr. Wright
alleges that advanced cancer was caused, in part, by Ms.
Johnson’s alleged malfeasance.
until 2011.

The cancer was not discovered

Accordingly, as argued by Mr. Wright, there is a

plausible argument to be made that the statute of limitations
did not begin to run until the date the cancer was discovered.
Under Iowa law, the statute of limitations for personal
injury actions begins to run at the time a plaintiff discovers
or in the exercise of reasonable care should have discovered
“all the elements of the action.”
377 N.W.2d 660, 662 (Iowa 1985).

Franzen v. Deere & Co.,

This latter concept-“should

have discovered”-is commonly referred to as inquiry notice.
Sparks v. Metalcraft, Inc., 408 N.W.2d 347, 352 (Iowa 1987).
8

See also Buechel v. Five Star Quality Care, Inc., 745 N.W.2d
732, 736 (Iowa 2008).
personal injury tort.

Damage is an essential element of
Bockelman v. State, Dep't of Transp.,

366 N.W.2d 550, 552 (Iowa 1985).

Since the damage was not

discovered until 2011, Mr. Wright had not discovered “all” of
the elements of his claim until that date.
Mr. Wright’s claim was filed in 2012.
year statute of limitations.

This portion of

2012 is within the two

Accordingly, the Court is

persuaded that Ms. Johnson should not be dismissed on statute
of limitation grounds and the Defendants’ Motion to Dismiss
Ms. Johnson, Docket No. 29, must be denied.
B.

Motion for Summary Judgment
1.

Standard

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

Summary judgment is appropriate only if the record shows
“there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
R. Civ. P., Rule 56(c).

Fed.

A fact is material if it is necessary

“to establish the existence of an element essential to [a]
party’s case, and on which that party will bear the burden of
proof at trial.”
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 322

There is a genuine issue as to a material fact if,

based on the record before the court, a “rational trier of
fact” could find for the non-moving party.

Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
When considering a motion for summary judgment, a “court
must view the evidence in the light most favorable to the
nonmoving party . . . .”

Hutson v. McDonnell Douglas Corp.,

63 F.3d 771 (8th Cir. 1995).

This requires a court to draw

any reasonable inference from the underlying facts in favor of
the nonmoving party and to refrain from weighing the evidence,
making credibility determinations, or attempting to discern
the truth of any factual issue in a manner which favors the
moving party unless there is no reasonable alternative.
10

See

Matsushita,

475

U.S.

at

587;

and

Morris

v.

City

of

Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (citing
Thomas v. Corwin, 483 F.3d 516, 526-27 (8th Cir. 2007).
Procedurally, the movant bears the initial burden “of
informing the district court of the basis for its motion and
identifying those portions of the record which show a lack of
a genuine issue.” Hartnagel v. Norman, 953 F.2d 394, 395 (8th
Cir. 1992) (citing Celotex, 477 U.S. at 323). Once the movant
has carried his burden, the non-moving party is required “to
go beyond the pleadings” and through “affidavits, or by the
‘depositions, answers to interrogatories, and admissions on
file,’ designate specific facts showing that there is a
genuine issue for trial.’” Celotex, 477 U.S. at 323 (citing
Fed. R. Civ. P. 56(e)).
2.

November 16, 2009, Incident

The first issue in the Defendants’ Motion for Summary
Judgment

concerns

Mr.

original

Complaint,

Wright’s

Mr.

Wright

original
alleges

claim.
that

In

CCUSO

the

staff

members Bryon Kelly, Cindy Olson, Albin Carlson, and Janne
Johnson were deliberately indifferent for failing to protect
him from another CCUSO patient, Mr. Whitney.
11

Mr. Wright

alleged that Mr. Whitney attacked him and stabbed him.

See

Docket No. 18.
The Defendants’ Brief sets out the relevant facts:
On November 16, 2009, the patients were
arguing over a light switch in a common
area.
Mr. Wright and Mr. Peterson were
quibbling over whether it should be off or
on – Mr. Wright kept turning it on. Staff
intervened.
By
Mr.
Wright’s
contemporaneous report, Mr. Whitney reached
around staff to stab him in the cheek with
a bic pen. Staff continued to intervene to
calm the situation. CCUSO staff assisted
Mr. Wright clean the wound and apply a
band-aid. LPN Adam Benson checked in with
Mr. Wright and Mr. Wright noted he’d be
alright. ARNP Janne Johnson evaluated Mr.
Wright, noting it was a “very superficial
puncture wound.” Mr. Wright was prescribed
bacitracin ointment and cared for the wound
himself. No further medical follow up was
necessary. Mr. Wright testified he could
have presented himself for medical clinic,
but chose not to. He wore a band-aid over
the injury for approximately five days.
Docket No. 33, Att. No. 2, p. 1-2.
Although an involuntarily committed patient of a state
hospital is not a prisoner per se, a patient’s confinement is
subject to the same safety and security concerns as that of a
prisoner.

Revels v. Vincenz, 382 F.3d 870, 874-75 (8th Cir.

2004) citing Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir.
2001)

(holding

that

an

excessive-force
12

claim

from

an

involuntarily

committed

state

hospital

patient

should

be

evaluated under the same standard as an excessive-force claim
brought

by

pretrial

detainee).

However,

because

an

involuntarily committed psychiatric patient is confined for
treatment

rather

than

incarcerated

for

the

purpose

of

punishment following conviction, the Eighth Amendment does not
apply.

See Neely v. Feinstein, 50 F.3d 1502, 1508 (9th Cir.

1995); see also Youngberg v. Romeo, 457 U.S. 307, 324-325, 102
S. Ct. 2452, 73 L. Ed. 2d 28 (1982) (concluding that an
involuntarily committed patient has substantive due process
rights under the Fourteenth Amendment and the Eighth Amendment
was not the proper standard of liability).
That said, the 8th Circuit has applied the prisoner
standard to involuntary patients.

Revels, 382 F.3d 874-75.

A prisoner alleging an Eighth Amendment violation must prove
both an objective and subjective element. See Wilson v.
Seiter, 501 U.S. 294, 298 (1991).
must

objectively

rise

to

the

The defendant's conduct

level

of

a

constitutional

violation, Id., by depriving the plaintiff of the “minimal
civilized measure of life's necessities.”
452 U.S. 337, 342 (1981).

Rhodes v. Chapman,

The defendant's conduct must also
13

reflect

a

subjective

state

of

mind

evincing

deliberate

indifference to the health or safety of the prisoner. Estelle
v. Gamble, 429 U.S. 97, 104 (1977).
indifference,

the

plaintiff

must

To establish deliberate
show

the

defendant

was

substantially aware of but disregarded an excessive risk to
inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 835
(1994).
In their Motion for Summary Judgment, the Defendants’
argue that:
Mr. Wright raises three reasons why
Defendants should have known Mr. Whitney
posed a serious threat of harm. First, he
alleges that Mr. Whitney was a “known
racist”
at
the
Iowa
Department
of
Corrections.
Even if this were true,
which there is no evidence to believe it
is, institutional officials “are not
required to segregate indefinitely all
inmates whose original crimes suggest they
might be capable of further violence.”
Curry, 226 F.3d at 978.
Mr. Wright suggests that the assault on Ms.
Moye indicates that Mr. Whitney was
dangerous. However, staff intervened and
prevented Mr. Whitney from assaulting a
patient, which is how Ms. Moye was injured.
Mr. Wright used this incident as an
opportunity
to
engage
in
aggression
himself, and was restrained as a result.
There is no evidence that Mr. Whitney
threatened other patients in the manner
that Mr. Wright suggests.
Even if the
14

threats were true, "deliberate indifference
must be determined with regard to the
relevant
[institutional]
official's
knowledge at the time in question, not with
‘hindsight's perfect vision.'" Blades v.
Schuetzle, 302 F.3d at 804 (quoting Jackson
v. Everett, 140 F.3d 1149, 1152 (8th Cir.
1998)).
Docket No. 33, Att. 2, p. 7-8.

The Defendants go on to state

that the fight on November 16, 2009, started over whether the
lights should be on or off.

The Defendants correctly point

out that the 8th Circuit has repeatedly held that officials
are entitled to qualified immunity on failure to protect
grounds when an inmate is injured in a surprise attack/fight.
See Curry v. Crist, 226 F.3d 974, 978-79 (8th Cir. 2000).
On this issue, it seems clear that Defendants’ Motion
for Summary Judgment must be granted.

There is no evidence

that the November 16, 2009, fight was anything more than a
surprise attack.
appropriately

when

Moreover, it appears that CCUSO acted
the

fight

broke

out.

Accordingly,

Defendants Bryon Kelly, Cindy Olson, Albin Carlson, and Janne
Johnson are entitled to qualified immunity regarding the
November 16, 2009, fight and that portion of Mr. Wright’s
Complaint must be dismissed.

15

Mr. Wright additionally alleges that Ms. Johnson failed
to treat him after the fight.

The deliberate indifference

standard regarding medical care will be discussed fully in the
next section.

Suffice to say, there is no evidence that Ms.

Johnson was indifferent to Mr. Wright’s (superficial) wound
after the November 16, 2009, fight.
bandaged and healed.

The wound was promptly

Accordingly, the medical claim related

to the stab wound must also be dismissed.
The Court also notes that Mr. Wright did not resist this
portion
Instead,

of

the

Mr.

Defendants’

Wright

filed

Motion
his

own

for

Summary

Motion

for

Judgment.
Voluntary

Dismissal, Docket No. 43, in which, as will be discussed
further below, he argued that his claim should be dismissed,
but without prejudice.

Additionally, during the hearing, Mr.

Tiefenthaler admitted that Mr. Wright’s claims related to the
November 16, 2009, fight could not succeed on their own.
3.

Failure to Treat Prostate Cancer

Mr. Wright’s general allegation is that he was injured by
the Defendants’ constitutionally inadequate medical care.
Specifically,

Mr.

Wright

argues

that

had

CCUSO

provided

constitutionally sufficient medical care, his prostate cancer,

16

if not prevented, would have been discovered and treated much
earlier.
At the outset, the Court notes that, “[p]ersons who have
been involuntarily committed are entitled to more considerate
treatment and conditions of confinement than criminals whose
conditions of confinement are designed to punish.”
v. Romeo, 457 U.S. 307, 321-22 (1982).

Youngberg

There has been some

debate regarding the appropriate standard in this type of
case.

The Defendants argue that the deliberate indifference

standard

applies,

while

the

Plaintiff

argues

that

the

Youngberg case, cited above, should control.3
This
standard.

Court

has

previously

endorsed

the

Youngberg

See 5:11-CV-4055-DEO, Docket No. 48, where the

Court stated:
[a]fter reviewing relevant case law, this
Court
is
persuaded
that
deliberate
indifference is inapplicable.
Because
deliberate
indifference
analysis
is
typically employed in Eighth Amendment
cases involving prisoners, its application
to involuntarily committed wards of the
State,
whom
"are
entitled
to
more
considerate treatment than criminals whose
conditions of confinement are designed to
punish," is inappropriate.
Youngberg v.
3

In his brief, Mr. Wright also cites both the deliberate
indifference standard and the Youngberg standard. However,
during the hearing, Mr. Tiefenthaler, Mr. Wright’s attorney,
argued that Youngberg alone was appropriate.
17

Romeo, 457 U.S. 307, 321-22 (1982). "The
State does not acquire the power to punish
with
which
the
Eighth
Amendment
is
concerned until after it has secured a
formal adjudication in accordance with due
process of law."
DeShaney v. Winnebago
County Dep't of Soc. Servs., 489 U.S. 189,
199 n. 6 (1989).
In Youngberg v. Romeo, the Supreme Court
specifically indicated that the deliberate
indifference test is inapplicable to
involuntarily committed persons. 457 U.S.
at 312, n. 11. Though the Eighth Circuit
has subsequently used the deliberate
indifference
test
in
relation
to
involuntarily committed patients, they did
so because “neither party . . . questioned
the applicability of the Eighth Amendment.”
382 F.3d at 874. However, the parties to an
action cannot alter applicable law simply
because they agree to, and Supreme Court
case law takes precedent over Eighth
Circuit case law.
The Youngberg Court
recognized that though the Eighth Amendment
is inapplicable, involuntarily committed
persons have substantive rights arising
under the Fourteenth Amendment. 457 U.S.
at 315.
Though “a State is under no
constitutional duty to provide substantive
services for those within its border...
[w]hen a person is institutionalized,” the
State “has a duty to provide certain
services and care...” Id. at 317. Among
the
most
basic
substantive
liberty
interests to which involuntarily committed
persons are entitled are rights “to
adequate food, shelter, clothing, and
medical” care. Id. at 315.

18

However,
“a
State
necessarily
has
considerable discretion in determining the
nature and scope of its responsibilities.”
Id. at 317.
“In determining whether a
substantive right protected by the Due
Process Clause has been violated, it is
necessary to balance ‘the liberty of the
individual’
and
‘the
demands
of
an
organized society.’”
Id. at 320 (citing
Poe v. Ullman, 367 U.S. 497, 542 (1961)).
In addition, a court should keep their
interference with the operations of State
operated civil commitment facilities to a
minimum. Id. at 322. “[T]here certainly
is no reason to think judges or juries are
better
qualified
than
appropriate
professionals in making” the difficult
decisions necessary to run such facilities.
Id. at 323.
Though specifically dealing with the
treatment of an involuntarily committed
patient’s mental condition which was the
basis of his commitment, this Court is
persuaded that the standard crafted in
Youngberg is applicable here. See McDonald
v. Eilers, 1988 WL 131360 (E.D. Pa. 1988)
(applying Youngberg in case involving the
adequacy of medical treatment).
In
Youngberg, the Court stated that the
decision in question, “if made by a
professional,
is
presumptively
valid;
liability may be imposed only when the
decision by the professional is such a
substantial
departure
from
accepted
professional
judgment,
practice,
or
standards as to demonstrate that the person
responsible actually did not base the
decision on such judgment.” 467 U.S. at
323.
5:11-CV-4055-DEO, Docket No. 48, p. 13-16.

19

The Court is aware that its determination regarding the
Youngberg standard of care is on appeal before the Eighth
Circuit Court of Appeals in at least one case.
4055-DEO.

See 11-CV-

The Court remains convinced that Youngberg is the

appropriate standard. However, because the Court is persuaded
that in this case, the outcome will be the same regardless of
whether it applies Youngberg or deliberate indifference, it
will apply the more stringent deliberate indifference test.
To that end, the:
Eighth Amendment's prohibition against
cruel
and
unusual
punishment,
which
embodies “broad and idealistic concepts of
dignity, civilized standards, humanity, and
decency,” prohibits punishments which are
incompatible with “the evolving standards
of decency that mark the progress of a
maturing society.” Estelle v. Gamble, 429
U.S. 97, 102 (1976). It thus requires that
the government provide “medical care for
those
whom
it
is
punishing
by
incarceration.” Id. at 103. The Eighth
Amendment safeguards the prisoner against
a lack of medical care that “may result in
pain and suffering which no one suggests
would serve any penological purpose.” Id.
Accordingly, “deliberate indifference to
serious medical needs” of a prisoner
constitutes the unnecessary and wanton
infliction of pain forbidden by the
Constitution. Id. at 104.
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th
Cir. 2009) (parallel citations omitted).

20

Although in a

slightly different situation, the 8th Circuit Court of Appeals
has applied the deliberate indifference standard to civilly
committed sexually violent predators.

See, Senty-Haugen v.

Goodno, 462 F.3d 876, 889 (8th Cir. 2006) where the 8th
Circuit applied the deliberate indifference standard to a
medical care claim raised by a patient involuntarily committed
as a sexually violent predator; however, in that case, neither
side objected to the standard of care.
Under the deliberate indifference standard, Mr. Wright
must show the Defendants were deliberately indifferent to a
serious illness or injury.

Senty-Haugen, 462 F.3d at 889.

A

successful deliberate indifference claim is comprised of both
an objective and a subjective element. Farmer v. Brennan, 511
U.S. 825, 834 (1994).
that,

objectively,

First, Mr. Wright must demonstrate
the

deprivation

he

suffered

was

“sufficiently serious; that is, it must result in the denial
of the minimal civilized measure of life's necessities.”
Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002).

In

the medical care context, this objective element is satisfied
when a plaintiff demonstrates that his medical need itself was
sufficiently serious.
1369 (7th Cir. 1997).

Gutierrez v. Peters, 111 F.3d 1364,
Second, Mr. Wright must establish that

21

the defendants acted with a “‘sufficiently culpable state of
mind’” to support liability under § 1983.

Greeno v. Daley,

414 F.3d 645, 653 (7th Cir. 2005).
Although negligence or inadvertence will not support a
deliberate indifference claim, a plaintiff need not establish
that prison officials actually intended harm to befall him
from the failure to provide adequate care.
at 1037.

Walker, 293 F.3d

“[I]t is enough to show that the defendants knew of

a substantial risk of harm to [the plaintiff] and disregarded
the risk.”

Greeno, 414 F.3d at 653.

A successful plaintiff

need not show that he was literally ignored in his demands for
medical treatment, and a defendant's showing that a plaintiff
received

some

treatment

does

not

resolve

the

issue

conclusively if the treatment was “blatantly inappropriate.”
Greeno, 414 F.3d at 653–54 (internal citations and quotation
omitted).

Finally,

the

Eighth

Amendment

“protects

[a

plaintiff] not only from deliberate indifference to his or her
current serious health problems, but also from deliberate
indifference to conditions posing an unreasonable risk of
serious damage to future health.”
469, 479 (7th Cir. 2005).

Board v. Farnham, 394 F.3d

“Deliberate indifference must be

measured by the official’s knowledge at the time in question,

22

not by ‘hindsight’s perfect vision.’”

Schaub v. VonWald, 638

F.3d 905, 915 (8th Cir. 2011) (citing Lenz v. Wade, 490 F.3d
991, 993 n.1 (8th Cir. 2007)).
Thus, under this standard, the Defendants argue that Mr.
Wright must prove that CCUSO officials, specifically Ms.
Benson and Ms. Johnson, knew about excessive risks to his
health but disregarded them, and that their unconstitutional
actions in fact caused his injuries.

Senty-Haugen, 462 F.3d

at 890. For the purposes of trial, their argument is correct.
However, presently before the Court is a Motion for Summary
Judgment.

As noted above, at this stage of the case, the

claim must be allowed to proceed if Mr. Wright has alleged
facts from which a jury could find in his favor. Accordingly,
the Court must consider if there are facts in dispute.

If

there is a genuine issue of material fact, summary judgment is
inappropriate.
Mr. Wright argues:
The
Defendants
in
this
case
were
deliberately indifferent to the Plaintiff’s
development of prostate cancer. Plaintiff
was in a high risk group for developing
prostate cancer based upon several factors:
1) He was over 40 years of age; 2) He had
a family history of his father dying of
prostate
cancer;
3)
He
was

23

African-American;4 and 4) He had difficulty
with frequency and urgency of urination to
such an extent that he had to keep a can
next to his bed as he couldn’t make it to
the restroom quick enough before needing to
urinate.
Docket No. 42, Att. No. 3, p. 1.
It is undisputed that Mr. Wright refused to let a female
nurse conduct rectal prostate exams.
No. 33, Att. No. 3, p. 50.

See for example Docket

However, Mr. Wright alleges that

he was never informed that those exams were to check for
prostate issues. As discussed above, Mr. Wright also informed
Ms. Johnson of issues he had with his urination, including the
fact that he could not make it through the night without
having to relieve himself.

Instead of taking action, Ms.

Johnson allegedly chastised Mr. Wright for urinating in a
‘coffee jar.’

Mr. Wright argues that these facts meet the

first element of the deliberate indifference standard:
by the fact that the Plaintiff developed
prostate cancer and, due to the passage of
time,
needed
surgery
to
remove
his
prostate. At the very least, there is a
dispute as to material facts as to whether
the Defendants’ actions were sufficient in
the following areas:
1) informing the
Plaintiff of his likelihood and risks of
developing
prostate
cancer;
2)
in
performing sufficient early testing to
4

There is an allegation that African Americans are more
prone to prostate cancer.
24

determine if the Plaintiff has prostate
cancer; 3) in ignoring his early urination
problems which were symptomatic of his
prostate cancer; and 4) in failing to
diagnose his prostate cancer before he
needed surgery to remove his prostate.
Docket No. 42, Att. No. 3, p. 2-3.

Mr. Wright goes on to

argue that:
There is also a dispute as to material
facts in this matter regarding the second
element of the deliberate indifference
test.
The
Plaintiff
had
urinary
difficulties
with
frequency,
urgency,
hematuria, and nocturia as early as 2009.
The medical staff at CCUSO was aware of
these problems as the Plaintiff had to keep
a coffee jar by his bed to use as a urinal
due to these symptoms.
Instead of
informing the Plaintiff that these could be
signs of prostate cancer and making further
inquiry into such, the Plaintiff was
threatened with disciplinary action if he
didn’t quit using his make-shift urinal.
Such conduct shows deliberate indifference.
Docket No. 42, Att. No. 3, P. 3-4.
The Defendants respond by saying that:
Mr. Wright is alleging that Ms. Johnson and
Ms. Benson failed to detect his cancer.
Mr. Wright refused digital rectal exams.
Mr. Wright refused some physicals. It was
the PSA test ordered by Ms. Benson that
detected his cancer.
When Mr. Wright
received a digital rectal exam at the
University of Iowa Hospitals and Clinics,
the prostate was not noted to be enlarged
for his age, and there was no nodularity.
This means that Mr. Wright’s cancer was not
detectable with a digital rectal exam. The
25

PSA was the only reason this cancer was
detected. Ms. Benson caught Mr. Wright’s
cancer early, before it was detectable upon
digital exam.
He received thorough
treatment at UIHC and has had a good
recovery. Mr. Wright engaged in consensual
sex
with
another
patient
at
CCUSO,
demonstrating
that
he
has
retained
functionality despite his treatment.
Docket No. 33, Att. No. 2, p. 13.
The Court is persuaded that Mr. Wright is correct.

As

noted by both parties, the deliberate indifference standard is
a two part test.

The first question is whether a serious

health issue is at stake, and the second question is whether
the Defendants knew, or should have known, that their actions
posed a substantial risk of harm.

There is no real dispute

that Mr. Wright has a serious health issue.

He suffered from

prostate cancer, the treatment of which required doctors to
remove his prostate.

Thus, the real question is whether Ms.

Benson and/or Ms. Johnson should have known that their care,
or lack thereof, posed a serious risk to Mr. Wright.
There is a significant fact question whether Ms. Johnson
should

have

known

that

the

urinary

issues

Mr.

Wright

complained of, including not being able to make it through the
night without urinating, were precursors to prostate cancer.
There is a serious fact question on whether Ms. Johnson should

26

have acted on that information.

(Being told that a person is

having to urinate in a jar, but refusing to act on that
information

seems

the

very,

non-legal,

definition

of

deliberate indifference). Moreover, while it is true that Mr.
Wright refused digital rectal exams, the refusal of medical
service forms which he signed do not explain why those test
were offered, or specifically that they are done to screen for
prostate cancer.

There is a fact question regarding whether

Mr. Wright was at an elevated risk of developing prostate
cancer.

The answer to that question impacts whether Ms.

Benson and Ms. Johnson were putting Mr. Wright at risk by not
explaining that he needed to submit to the digital rectal exam
and

blood

tests

to

screen

for

prostate

cancer.

(The

Defendants argue that Mr. Wright never informed them that he
had a family history of prostate cancer, but that simply leads
to the question of whether Ms. Johnson and Ms. Benson should
have inquired about Mr. Wright’s family history. It is common
knowledge that family histories are routine part of most
medical exams).
Mr. Wright also states that he would have submitted to
digital rectal exams had they been conducted by a male.
Defendants deny he made such a request.

27

The

Again, this is a fact

question. Finally, the Defendants argue that a digital rectal
exam would not have revealed the prostate cancer any earlier
than the blood test did.
question.

However, that too is a fact

In the context of a Motion for Summary Judgment,

the Court must give the non-moving party the benefit of the
doubt regarding those types of factual controversies.

Both

parties have alleged that Dr. Tracy, Mr. Wright’s treating
physician, has made statements that support their argument.
However, nothing Dr. Tracy has said has been made a part of
this record.

Accordingly, whose position he supports, and to

what extent, is also a fact question that must be reserved for
the time of trial.
For the forgoing reasons, the Court is persuaded that a
fact question exists regarding Ms. Benson and Ms. Johnson’s
treatment of Mr. Wright, and whether that treatment was
deliberately indifferent.

The Defendants’ Motion for Summary

Judgment regarding the prostate cancer claim is denied.
4.

Qualified Immunity

Defendants next argue that they are entitled to a defense
of qualified immunity.

As government officials, the CCUSO

Defendants argue that they are entitled to qualified immunity
for the performance of discretionary functions.

28

Davis v.

Hall, 375 F.3d 703, 711 (8th Cir. 2004).

Qualified immunity

exists “to protect public officials from the ‘broad-ranging
discovery’ that can be ‘peculiarly disruptive of effective
government.’” Anderson v. Creighton, 483 U.S. 635, 646 (1987)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982)).
To defeat the Defendants’ claim of qualified immunity,
the

Plaintiff

conduct

must

violated

show
a

how

“clearly

each

Defendant’s

established

individual

statutory

or

constitutional right of which a reasonable person would have
known.”

Id.

sequential

The Supreme Court has established a two step

evaluation

qualified immunity.5
(2001).

process

to

resolve

questions

of

Saucier v. Katz, 533 U.S. 194, 201

The “‘threshold question’” is whether the facts,

taken in a “‘light most favorable to the party asserting the
injury,’” demonstrate the defendant’s “‘conduct violated a
constitutional right’” of the plaintiff. Scott v. Harris, 550
U.S.

372,

377

(2007).

If

there

is

a

“violation

of

constitutional right, ‘the next, sequential step is to ask

5

More recently, in Pearson v. Callahan, the Supreme Court
ruled that the sequential evaluation process outlined in
Saucier was not mandatory; lower courts retain discretion
whether to follow the Saucier procedure. 555 U.S. 223, 236
(2009).
29

whether the right was clearly established . . . in light of
the specific context of the case.’”

Id.

The first question in the sequential evaluation process
is

straight

forward

and

merely

asks

if

constitutional violation under prevailing law.

there

is

a

The second

question in the sequential evaluation process requires that
the “contours of the right . . . be sufficiently clear” such
“that a reasonable official would understand that what he is
doing violates that right.”

Saucier, 533 U.S. at 202.

“If

the law did not put the [official] on notice that his conduct
would be clearly unlawful,” a motion to dismiss “based on
qualified immunity is appropriate.”

Id.

While the first and

second steps are quite similar, the second step adds an
additional dimension in that “reasonable mistakes can be made
as to the legal constraints on particular” official conduct,
regardless

of

whether

constitutional violation.

or

not

there

was

an

actual

Id., at 205.

The only remaining Defendants in this case are Ms. Benson
and Ms. Johnson.

Under the qualified immunity precedent

discussed above, Mr. Wright must show that a constitutional
violation exists under established law, and that Ms. Johnson
and Ms. Benson knew, or should have known, that what they were

30

doing violated that clearly established law.

If Mr. Wright

fails to prove those two elements, the Defendants are entitled
to qualified immunity.
It is a long standing precedent that those individuals
providing care to incarcerated or detained individuals have a
duty to provide medical services that are not deliberately
indifferent.
satisfied.

Accordingly,

the

first

prong

is

easily

There is no real question that Ms. Benson and Ms.

Johnson were required to provide Mr. Wright with medical care
that was not deliberately indifferent.

The second prong asks

if Ms. Johnson and Ms. Benson should have known that the care
they

were

providing

to

Mr.

Wright

established legal precedent.

violated

the

clearly

As the Court stated in the

previous section, there is a factual issue regarding whether
the Defendants were deliberately indifferent to Mr. Wright’s
medical need.

Similarly, there is a fact issue regarding

whether the Defendants knew, or should have known, that their
care was constitutionally deficient.

The Court cannot say,

for example, that Ms. Johnson’s (alleged) decision to ignore
Mr. Wright’s inability to control his bladder through the
night did not violate clearly established law.

Accordingly,

Mr. Wright has created a fact issue that satisfies the second

31

qualified immunity inquiry and the Defendants’ Motion for
Summary Judgment on qualified immunity grounds must be denied.
The Defendants also argue that they are not personally
responsible.

As has been discussed extensively above, Ms.

Benson and Ms. Johnson were involved in Mr. Wright’s care
throughout his commitment at CCUSO.

Accordingly, they are

appropriate, personally responsible, parties in this case.
C.

Motion for Voluntary Dismissal

The final issue the Court must take up is the Plaintiff’s
Motion for Voluntary Dismissal.

This Motion deals with Mr.

Wright’s claims regarding the fight that occurred on November
16, 2009.

As discussed above, rather than argue that the

Defendants’ Motion for Summary Judgment on that issue should
be denied, Mr. Wright choose to file a Motion for Voluntary
Dismissal.
Mr.

Wright

did

not

file

his

Motion

for

Voluntary

Dismissal until after the Defendants filed an Answer and filed
the above referenced Motion for Summary Judgment, Docket No.
33.

Under Federal Rule of Procedure 41(b), the Plaintiff

cannot voluntarily dismiss an action after the Defendants file
a Motion for Summary Judgment unless the Court rules that it

32

is appropriate.

In this case, the Court is persuaded that

granting voluntary dismissal is not appropriate.
Mr. Wright’s claim related to the November 16, 2009,
fight

is

old.

If

the

Court

allowed

the

Plaintiff

to

voluntarily dismiss without prejudice, and the Plaintiff chose
to refile the case, the Court would likely have to deny it at
the initial review stage on statute of limitation grounds.
Moreover, as discussed in Section B, starting on page 9, there
is

no

evidence

to

support

Mr.

Wright’s

claim

that

the

Defendants were deliberately indifferent to serious threat of
harm and the Defendants are entitled to qualified immunity on
that claim.

Additionally, Mr. Wright’s injury, which was

fixed by a band-aid, is unlikely to be considered so severe
that an award of damages would be appropriate.
The Plaintiff states in his brief:
The Plaintiff is requesting that dismissal
be without prejudice to allow the claim to
be possibly re-filed in the future as part
of an ongoing pattern of conduct of the
Defendants and provide the Plaintiff with
more time to gather evidence in support of
his claim should he choose to refile it at
a later date.
Docket No. 43, p. 1-2.

As indicated above, refiling the case

would likely be barred by a statute of limitations.

Also, as

indicated in Section B, the claim fails as a matter of law.
33

Additionally, Mr. Wright has no standing to bring claims based
on things that happened to other CCUSO inmates.

So his

“pattern of conduct” claim would fail at the initial review
stage.
For those reasons, the Court must deny Mr. Wright’s
Motion

to

Voluntarily

Dismiss

his

claim

related

to

the

November 16, 2009, fight/stabbing, Docket No. 43.
V.

CONCLUSION
For the reason set out above, the Defendant’s Motion to

Dismiss Janne Johnson on statute of limitations grounds,
Docket No. 29, is denied.

The Defendant’s Motion for Summary

Judgment, Docket No. 33, is granted in part and denied in
part.

Mr. Wright’s claims related to the November 16, 2009,

fight are dismissed with prejudice, but his claim related his
prostate cancer will be allowed to proceed.
partial

granting

of

the

Motion

for

Pursuant to the

Summary

Judgment,

Defendants Bryon Kelley, Cindy Olson, and Albin Carlson are
hereby dismissed from the case.

The Plaintiff’s Motion for a

Voluntary Partial Dismissal, regarding the November 16, 2009,
fight, Docket No. 43, is denied.
IT IS SO ORDERED this 30th day of September, 2013.

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

34