Scott v. Benson et al

Filing 99

ORDER granting 71 MOTION to Continue Trial and Discovery Deadlines in 5:13-cv-04028-DEO and granting 97 MOTION to Continue Trial and Discovery Deadlines in 5:11-cv-04055-DEO. The parties will have 60 days from date of this Order to conduct additi onal discovery. Amendments to pending 59 Motion for Summary Judgment in 13cv4028 will be due two weeks later, and supplements to the resistance at 64 will be due two weeks after that. The parties are directed to confer with the Magistrate Judge Strand's chambers and agree on a new trial date between 120 and 150 days from the date of this Order. Signed by Senior Judge Donald E OBrien on 6/9/15. Associated Cases: 5:13-cv-04028-DEO, 5:11-cv-04055-DEO (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

DANIEL J. SCOTT,
Plaintiff,

13-CV-4028-DEO
11-CV-4055-DEO

vs.

ORDER

MARY BENSON AND JASON SMITH,
Defendants.
____________________
Before the Court are the Plaintiff’s Motions to Continue
the above captioned cases. See 11-CV-4055-DEO, Docket No. 97;
and 13-CV-4028-DEO, Docket No. 71.
both

motions.

See

11-CV-4055-DEO,

13-CV-4028-DEO, Docket No. 72.
are

largely

the

The Defendant(s) resists

same.)

Docket

No.

98;

and

(The arguments in both cases

After

considering

the

parties’

arguments, the Court now enters the following.
I.

BACKGROUND
Mr. Scott is a patient at CCUSO, the Civil Commitment

Unit for Sexual Offenders located in Cherokee, Iowa.

An Iowa

jury found that he has a mental abnormality associated with
being a sexually violent predator.

In re Det. of Scott, 742

N.W.2d 605 (Table) (Iowa Ct. App. 2007). Since his commitment
to CCUSO, Mr. Scott has filed several suits before this Court.
A partial history is set out below.
On August 5, 2011, this Court conducted an initial review
of a Complaint filed by Mr. Scott in case 11–CV–4055–DEO. The
Court appointed Mr. Scott an attorney and let his claim
proceed on the following claims:
(1) he is improperly required to follow
certain
dietary
restrictions
due
to
illness; (2) his electric wheelchair was
improperly taken from him as a form of
punishment; (3) his mail is being opened to
confiscate contraband; (4) CCUSO has
provided
him
insufficient
handicap
facilities; and (5) CCUSO has insufficient
measures
to
prevent
the
spread
of
infectious
disease,
specifically,
Methicillin-resistant
Staphylococcus
aureus, MRSA.
11–CV–4055–DEO, Docket No. 10.

Both the Plaintiff and the

Defendant filed a number of preliminary motions in that case.
On September 28, 2012, this Court entered an Order granting in
part and denying in part the Defendant’s Motion for Summary
Judgment and Motion to Dismiss.
48.

11–CV–4055–DEO, Docket No.

The Court dismissed certain Defendant(s), but the Court

denied the Defendants’ Motion for Summary Judgment and allowed

2

the case to proceed against Defendant Mary Benson.

The State

appealed, and the 8th Circuit reversed this Court and stated
the Court had used the wrong legal standard.

Specifically,

The 8th Circuit stated:
[b]oth parties argued to the district court
that the deliberate indifference standard
from the Eighth Amendment should govern
Scott’s
Fourteenth
Amendment
claim.
Relying on a non-binding case, McDonald v.
Eilers, Civ. No. 88-2751, 1988 WL 131360,
at *2 (E.D. Pa. Dec. 7, 1988), the district
court instead analyzed Scott’s claim under
the professional judgment standard from
Youngberg v. Romeo, 457 U.S. 307 (1982).
Scott v. Benson, 742 F.3d 335, 339 (8th Cir. 2014), Docket No.
76.

The 8th Circuit went on to say:
where a patient’s Fourteenth Amendment
claim is for constitutionally deficient
medical care, we apply the deliberate
indifference standard from the Eighth
Amendment.
Senty-Haugen v. Goodno, 462
F.3d
876,
889-90
(8th
Cir.
2006).
Accordingly, the district court should have
applied
the
deliberate
indifference
standard to Scott's claim.

Scott, 742 F.3d at 339.
Based on the 8th Circuit’s ruling, the Court ordered
additional briefing.

On May 12, 2014, the Court again denied

the State’s Motion for Summary Judgment, this time applying

3

the deliberate indifference standard.
No. 87.

11-CV-4055-DEO, Docket

The case is currently scheduled for trial on June 29,

2015.
While the ‘main issue’ in case 11-CV-4055 was progressing
through the Court, the parties filed a number of ancillary
motions.

On February 3, 2012, the Defendants’ attorney,

Gretchen Kraemer, filed an Emergency Motion.
Docket No. 16.

11–CV–4055–DEO,

Ms. Kraemer stated that Mr. Scott’s potassium

was dangerously low because of his diabetes.

Ms. Kraemer

requested authority to transport and treat Mr. Scott even
though he was refusing treatment.

Id.

The Court granted the

Defendants’ Emergency Motion on the same day. 11–CV–4055–DEO,
Docket No. 17.
On March 14, 2013, Ms. Kraemer filed another Emergency
Motion stating that Mr. Scott was refusing treatment for an
infection.

Ms.

Defendants

to

Kraemer
treat

requested
Mr.

Scott

11–CV–4055–DEO, Docket No. 58.
conducted

a

hearing

regarding

this

Court

against

allow
his

the

will.

On March 15, 2013, the Court
the

Defendants’

Emergency

Motion. During that hearing, the Court advised the parties of
a letter written to the Court by Mr. Scott, in which Mr. Scott
4

argues

that

constitutional

forced

medication

rights.

The

is

a

Court

violation
entered

of

an

his
Order

11–CV–4055–DEO, Docket No. 64, authorizing the Defendants to
transport Mr. Scott to a hospital and treat his infection.
The Court also directed that Mr. Scott’s letter be filed as a
new lawsuit, which became captioned case 13-CV-4028-DEO. 13CV-4028, Docket Nos. 1 and 7.
On April 3, 2013, the Court entered an Initial Review
Order in 13–CV–4028.

13-CV-4028-DEO, Docket No. 6.

On

September 5, 2013, the Court traveled to the CCUSO unit in
Cherokee, Iowa, and conducted a hearing on the Motions for
(Preliminary/Temporary) Injunctive Relief contained in the
Amended Complaint and Counter Claim.
11 and 12.

13–CV–4028, Docket Nos.

On December 11, 2013, the Court entered an Order

preserving the status quo.

13–CV–4028, Docket No. 38.

As

anticipated by the Court, under the status quo arrangement,
Mr. Scott would be able to refuse routine medical treatment,
but the Defendants could file an emergency motion if a life
threatening situation developed.

The Defendants could also

treat Mr. Scott, even against his will, in the case of a
highly communicable or contagious diseases.
5

Id., p. 20-22.

The Court also allowed the Defendants to continue to provide
Mr. Scott a medically appropriate diet. Id., p. 29-30. After
deciding a number of other issues Mr. Scott had brought up
during the hearing, the Court advised the parties that a
settlement was likely the best outcome for Mr. Scott’s case
considering

the

case’s

unusual

history.

However,

no

settlement has been reached.

Instead, the Defendant filed a

Motion for Summary Judgment.

13-CV-4028-DEO, Docket No. 59.

The Court held a hearing on that Motion on May 8, 2015 and a
ruling is pending.

13-CV-4028-DEO is currently set for trial

for June 29, 2015, to be heard consecutively with 11-CV-4055DEO.

The trials are set to take place in Cherokee, Iowa, at

the CCUSO facility.
As Mr. Scott’s two cases have progressed, the Court has
addressed a number of other issues related to Mr. Scott.
During the weekend of October 12, 2013, the Court received two
phone calls from Mr. Scott complaining about a lesion on his
hip and CCUSO’s (alleged) failure to treat it.

On Monday,

October 14, 2013, the Court advised the parties of these
ex-parte communications.
1.

See 13–CV–4028, Docket No. 31, Ex.

In response, the Defendants filed a Supplement on October
6

15, 2013.

13–CV–4028, Docket No. 31.

On that same date, the

Plaintiff filed a request for an Emergency Hearing/Order.
13–CV–4028, Docket No. 32.
hearing

on

the

The Court conducted a telephonic

Emergency

Motion

on

October

16,

2013.

Following those hearings, the Court instructed that Mr. Scott
should be evaluated at the Cherokee Hospital. See 13–CV–4028,
Docket No. 38.
On February 10, 2014, Mr. Scott contacted the Court to
say he did not have access to bathroom facilities.

The Court

contacted counsel and was advised that a handicapped bathroom
at CCUSO had briefly been locked due to an issue with a
different CCUSO patient, but that following that incident, the
handicapped bathroom had been reopened.

The Court determined

that no additional action was needed at that time.
On

March

20,

2014,

Mr.

Scott’s

counsel,

Mr.

Parry,

informed the Court via email that Mr. Scott would like a
hearing regarding the number of electrical outlets (plug-ins)
in his room.

The State objected to a hearing on that matter,

and informed the Court Mr. Scott already had six outlets in
his room. The Court denied Mr. Scott’s request for a hearing,
stating:
[t]he
Court
is
persuaded
that
Defendants are correct.
By his
7

the
own

admission, Mr. Scott has six outlets. This
is not an issue upon which relief can be
granted.
Accordingly, the Plaintiff’s
request for a hearing is denied.
13-CV-4028, Docket No. 42, p. 2.
On

April

15,

2014,

Mr.

Scott

contacted

the

Court

requesting an emergency hearing because he did not have access
to an adequate shower chair.

The Court contacted counsel and

was advised that a new chair had been ordered for Mr. Scott.
Based on that information, the Court determined that no
additional action was needed at that time.
On October 28, 2014, the Court received an email from Pat
Parry stating that Mr. Scott had a severe infection.

The

Court contacted CCUSO’s counsel, Gretchen Kraemer, who stated
that Mr. Scott was scheduled for evaluation treatment at the
University of Iowa.

After further consolation with the

parties, the Court determined that no additional action was
needed.
On January 5, 2015, Mr. Scott filed a request for a
hearing regarding taking his own oxygen levels and using a
different oxygen machine.
a hearing.

See Docket No. 48.

The Court held

Following the hearing, the Court entered an Order

stating that Mr. Scott should use the oxygen machine he was

8

already using and could monitor his oxygen in the manner
discussed during the hearing.

The Court also stated:

[a]s mentioned above, in the Court’s
previous Order in this case, the Court
directed the parties to file emergency
motions if a life threatening issue arose
in relation to Mr. Scott. See Docket No.
38.
However, absent a life threatening
issue, the Court has little authority to
consider
novel
issues
in
the
above
captioned case absent additional filings.
Additionally, it is unfair to the appointed
attorney to add issues to a progressing
case
without
following
the
proper
procedures for opening a new case. It is
also unfair to other CCUSO patients who go
through the steps of filing new lawsuits
when new issues arise. Accordingly, the
Court reminds the parties that they may
file an emergency motion under the above
captioned
case
if
there
are
life
threatening issues as set out in the Order
on the Motion to Dismiss, Docket No. 38,
filed December 11, 2013. However, if Mr.
Scott wants to pursue new, unrelated legal
actions, he needs to file new cases in the
same manner as other CCUSO patients.
Docket No. 56, p. 16-17.
On March 27, 2015, the Court received a call from Mr.
Scott saying that CCUSO confiscated food from his room while
he was in the hospital.
hearing with the Court.

Mr. Scott demanded an immediate

The Court denied Mr. Scott’s request

for a hearing and noted that the Court had, on several
different occasions, already denied his legal claims regarding
his diet.

13-CV-4028-DEO, Docket No. 63.
9

II.

STANDARD OF REVIEW
“Whether to grant or deny a motion for continuance is a

decision within the sound discretion of the trial court, and
its decision may not be set aside absent an abuse of that
discretion.”

Kraus-Anderson Capital, Inc. v. Donohue, No.

4:14-CV-00937-NKL, 2015 WL 404361, at *5 (W.D. Mo. 2015)
citing DiMercurio v. Malcom, 716 F.3d 1138, 1140 (8th Cir.
2013).
In regards to a Motion to Continue a summary judgment
decision:
“summary judgment is proper only after the
nonmovant has had adequate time for
discovery.” In re TMJ Litigation, 113 F.3d
1484, 1490 (8th Cir. 1997). Federal Rule
of Civil Procedure 56(f) allows a party
opposing summary judgment to request the
court postpone a decision until adequate
discovery is completed. To obtain a Rule
56(f) continuance, the party opposing
summary judgment must file an affidavit
“affirmatively
demonstrating
...
how
postponement of a ruling on the motion will
enable him, by discovery or other means, to
rebut the movant’s showing of the absence
of a genuine issue of fact.”• Humphreys v.
Roche Biomedical Lab., Inc., 990 F.2d 1078,
1081 (8th Cir. 1993).
Ray v. Am. Airlines, Inc., 609 F.3d 917, 923 (8th Cir. 2010).
III.

ANALYSIS
Mr.

Scott’s

intertwined

cases

history.

have
In

a

short,
10

long,
Mr.

complicated,
Scott

has

and

alleged

deliberately indifferent medical care while at CCUSO (11-CV4055-DEO) and has also alleged that the Defendants have
unconstitutionally
(13-CV-4028-DEO).

interfered
Both

with

sides

his

have

medical

decisions

requested

emergency

hearings to address a variety of issues sometimes directly
related to the cases, sometimes not.
In the present Motion, the Plaintiff states that:
[o]n June 1, 2015, a potential witness and
current
employee
of
the
Iowa
Civil
Commitment Unit for Sex Offenders (CCUSO)
made contact with the undersigned attorney.
The witness indicated that he was in
possession of a great deal of information
relating
to
the
instant
case
that
contradicted
the
position
of
CCUSO
defendants(s). This witness was reluctant
to share said information unless it was as
part of a deposition and further was
requesting anonymity until the time of said
deposition.
The
attorney
for
the
defendant(s) and court staff were informed
of said information on June 1, 2015, and a
status hearing was conducted by court staff
on June 2, 2015. Although the exact nature
of the information is yet unknown, it would
serve the interest of justice to continue
the trial approximately 90-120 days and
allow additional discovery by deposing this
witness and any (sic) allow any further
necessary
discovery
related
to
the
deposition in the next 60 days.
13-CV-4028-DEO, Docket No. 71, p. 1-2.

11

Mr. Scott’s two cases are scheduled for a combined trial
date at the end of this month.1

The Defendants resist the

Plaintiff’s request to continue the trial and hold open the
pending Motion for Summary Judgment in 13-CV-4028-DEO.

In

their Resistence, the Defendants argue that 1) these cases
have been on the docket for quite some time; 2) these ‘new’
witnesses were previously discoverable; and 3) the ‘new’
witness(es) are not direct medical provider(s) so the new
information is, at best, tangentially related to the issues
set for trial.
This

is

an

unusual

situation.

Although

surprise

witnesses are common in fiction related to the practice of
law, they are relatively uncommon in real life.

Accordingly,

there is no universal way of handling this development.

The

Defendants argue that the new witness(es) are not direct
healthcare providers so their information is likely of minimal
value.

However, the identity of and information from the new

witness(es) is not presently before the Court.

Assuming for

the sake of argument that the new witnesses are not direct
health care providers, the Court notes that the entire CCUSO

1

After consulting with the Court, and with the Court’s
acquiescence, the parties determined that holding the trial at
the CCUSO facility in Cherokee, Iowa, would be in the best
interest of Mr. Scott’s deteriorating health.
12

facility is in the business of treating mental health issues.
Many of CCUSO patients also have underlying physical health
issues.

Thus, it is easy to contemplate a situation where

witnesses who are not direct providers may still have relevant
medical information.

Additionally, although it is possible

that these witnesses were previously discoverable, it is also
possible that their willingness to testify is new. As was set
out above, motions to continue are within the discretion of
the Court. There is no doubt that a new ‘whistle-blower’ type
witness will complicate these cases.

Both sides are left to

deal with the ‘surprise’ and must assess the new information
and

adjust

information

their
helpful

investigate it.

trial
to

strategies.
the

Plaintiff,

If

there

is

new

he

needs

time

to

If the Plaintiff believes new information is

relevant, the Defendants may well need to move to exclude it.
Although waiting for trial to explore this new evidence may be
more exciting, it is not in the best interest of anyone.
Accordingly, the Court is persuaded that the interest of
justice requires that the trial be continued.
The Court further notes that there is little potential
harm to either side by continuing the currently scheduled
trials. Both the Plaintiff and the Defendants have petitioned
the Court in emergencies in the past, and are free to do so in
13

the future, if a life threatening situation develops.

In the

interim, the best practice is to allow the parties to develop
the record and explore the information provided by the new
witnesses.
For the same reasons, the Court will open discovery in
13-CV-4028-DEO

and

extend

the

deadline

dispositive motion(s) and the responce(s).
time

is

necessary

to

allow

the

for

amending

the

This additional

non-moving

Plaintiff

opportunity to explore the surprise cooperating witness.

an
The

risk of prejudice to either party seems very small, especially
in light of the fact that the hearing on the original Motion
for Summary Judgment was held only a few weeks ago.
The parties will have 60 days from the date of this Order
to conduct additional discovery.

Amendments to the currently

pending Motion for Summary Judgment, 13-CV-4028-DEO, Docket
No. 59, will be due two weeks later, and supplements to the
Resistence, 13-CV-4028-DEO, Docket No. 64, will be due two
weeks after that.
IV.

CONCLUSION
The Plaintiff’s Motions to Continue (See 11-CV-4055-DEO,

Docket No. 97 and 13-CV-4028-DEO, Docket No. 71) are GRANTED.
The parties are directed to confer with Magistrate Judge
Strand’s chambers and agree on a new trial date between 120
14

and 150 days from the date of this Order.

The Magistrate

Judge will then file an Amended Trial Management Order setting
out the new deadlines discussed above.
IT IS SO ORDERED this 9th day of June, 2015
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

15