Wright v. Kelley et al
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
SYVENO JEWELL WRIGHT
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
INTRODUCTION AND BACKGROUND
Currently before the Court is Defendants’ Motion to
(Docket No. 43).
Mr. Wright is an involuntarily committed
patient at the Civil Commitment Unit for Sex Offenders (CCUSO)
in Cherokee, Iowa.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
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
On June 15, 2011, Magistrate Zoss entered an
Order consolidating Mr. Wright’s Complaint with the class
Docket No. 12.
Prior to approving a
settlement agreement in the class action, this Court severed
05-CV-04065, Docket No. 140.
The Court appointed Bob Tiefenthaler as Mr.
At the hearing the Court verbally denied Defendants’
Motion to Bifurcate/Sever, Docket No. 26. The parties agreed
that Motion had become moot.
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
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, Mr. Wright
Plaintiff complained to Defendant Janne
Johnson, who is no longer employed at
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.
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.
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).
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.
Defendants' Motion for Summary Judgement [MSJ] (Docket No.
33), and Mr. Wright’s Motion for Voluntary Dismissal (Docket
In the MTD, the Defendants argue that Defendant
Janne Johnson should be dismissed from this case because any
claim against her is barred by the personal injury statute of
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
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
without prejudice or whether the Court will dismiss it on the
merits with prejudice.
The Court will consider each issue below.
Motion to Dismiss Janne Johnson
This argument pertains exclusively to one Defendant,
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.
Specifically, the Defendants argue that any
The Court is aware of the imposition these lawsuits are
on Ms. Johnson, and has sympathy for her situation.
intimately involved in the treatment of Mr. Wright.
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
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.
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
radiation. This allegation may or may not be supported by the
statements of Dr. Tracy, Mr. Wright’s treating physician, who
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.
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).
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.
Motion for Summary Judgment
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
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 . . . .
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).
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.”
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.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
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.
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)).
November 16, 2009, Incident
The first issue in the Defendants’ Motion for Summary
members Bryon Kelly, Cindy Olson, Albin Carlson, and Janne
Johnson were deliberately indifferent for failing to protect
him from another CCUSO patient, Mr. Whitney.
alleged that Mr. Whitney attacked him and stabbed him.
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
Mr. Wright and Mr. Peterson were
quibbling over whether it should be off or
on – Mr. Wright kept turning it on. Staff
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
Revels v. Vincenz, 382 F.3d 870, 874-75 (8th Cir.
2004) citing Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir.
evaluated under the same standard as an excessive-force claim
involuntarily committed psychiatric patient is confined for
punishment following conviction, the Eighth Amendment does not
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).
The defendant's conduct
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
indifference to the health or safety of the prisoner. Estelle
v. Gamble, 429 U.S. 97, 104 (1977).
To establish deliberate
substantially aware of but disregarded an excessive risk to
inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 835
In their Motion for Summary Judgment, the Defendants’
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
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
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
threats were true, "deliberate indifference
must be determined with regard to the
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.
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
Moreover, it appears that CCUSO acted
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.
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
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
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.
Failure to Treat Prostate Cancer
Mr. Wright’s general allegation is that he was injured by
the Defendants’ constitutionally inadequate medical care.
constitutionally sufficient medical care, his prostate cancer,
if not prevented, would have been discovered and treated much
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).
There has been some
debate regarding the appropriate standard in this type of
The Defendants argue that the deliberate indifference
Youngberg case, cited above, should control.3
See 5:11-CV-4055-DEO, Docket No. 48, where the
[a]fter reviewing relevant case law, this
indifference is inapplicable.
typically employed in Eighth Amendment
cases involving prisoners, its application
to involuntarily committed wards of the
considerate treatment than criminals whose
conditions of confinement are designed to
punish," is inappropriate.
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.
Romeo, 457 U.S. 307, 321-22 (1982). "The
State does not acquire the power to punish
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
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.
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
interests to which involuntarily committed
persons are entitled are rights “to
adequate food, shelter, clothing, and
medical” care. Id. at 315.
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
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
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).
Youngberg, the Court stated that the
decision in question, “if made by a
liability may be imposed only when the
decision by the professional is such a
standards as to demonstrate that the person
responsible actually did not base the
decision on such judgment.” 467 U.S. at
5:11-CV-4055-DEO, Docket No. 48, p. 13-16.
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.
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
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
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).
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.
successful deliberate indifference claim is comprised of both
an objective and a subjective element. Farmer v. Brennan, 511
U.S. 825, 834 (1994).
First, Mr. Wright must demonstrate
“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).
the medical care context, this objective element is satisfied
when a plaintiff demonstrates that his medical need itself was
1369 (7th Cir. 1997).
Gutierrez v. Peters, 111 F.3d 1364,
Second, Mr. Wright must establish that
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.
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
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
conclusively if the treatment was “blatantly inappropriate.”
Greeno, 414 F.3d at 653–54 (internal citations and quotation
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,
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
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.
there is a genuine issue of material fact, summary judgment is
Mr. Wright argues:
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
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
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
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
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
performing sufficient early testing to
There is an allegation that African Americans are more
prone to prostate cancer.
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
There is also a dispute as to material
facts in this matter regarding the second
element of the deliberate indifference
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.
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
PSA was the only reason this cancer was
detected. Ms. Benson caught Mr. Wright’s
cancer early, before it was detectable upon
He received thorough
treatment at UIHC and has had a good
recovery. Mr. Wright engaged in consensual
functionality despite his treatment.
Docket No. 33, Att. No. 2, p. 13.
The Court is persuaded that Mr. Wright is correct.
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
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
have acted on that information.
(Being told that a person is
having to urinate in a jar, but refusing to act on that
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
There is a fact question regarding whether
Mr. Wright was at an elevated risk of developing prostate
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
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
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.
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.
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.
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
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
The Defendants’ Motion for Summary
Judgment regarding the prostate cancer claim is denied.
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.
Hall, 375 F.3d 703, 711 (8th Cir. 2004).
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,
constitutional right of which a reasonable person would have
The Supreme Court has established a two step
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
constitutional right, ‘the next, sequential step is to ask
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
whether the right was clearly established . . . in light of
the specific context of the case.’”
The first question in the sequential evaluation process
constitutional violation under prevailing law.
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.
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.”
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,
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
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
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
established legal precedent.
As the Court stated in the
previous section, there is a factual issue regarding whether
the Defendants were deliberately indifferent to Mr. Wright’s
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.
Mr. Wright has created a fact issue that satisfies the second
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
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.
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
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 until after the Defendants filed an Answer and filed
the above referenced Motion for Summary Judgment, Docket No.
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
In this case, the Court is persuaded that
granting voluntary dismissal is not appropriate.
Mr. Wright’s claim related to the November 16, 2009,
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
Defendants were deliberately indifferent to serious threat of
harm and the Defendants are entitled to qualified immunity on
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.
indicated in Section B, the claim fails as a matter of law.
Additionally, Mr. Wright has no standing to bring claims based
on things that happened to other CCUSO inmates.
“pattern of conduct” claim would fail at the initial review
For those reasons, the Court must deny Mr. Wright’s
November 16, 2009, fight/stabbing, Docket No. 43.
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
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.
Pursuant to the
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
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