Triplett v. Palmer et al

Filing 4

INITIAL Review Order to File and Serve: Application to proceed in forma pauperis 1 filed by Arthur Triplett is granted. Clerk shall file the complaint. No filing fee will be assessed. Clerk of Court directed to serve order with attachments and comp laint by certified mail to the CCUSO, care of each named Defendant, and to the Iowa Attorney General. Motion for Appointment of Counsel 2 is granted. Clerk shall appoint Attorney Patrick Parry. Amended complaint due by 1/18/2013. Clerk is furth er instructed to send plaintiff a copy of this Order and the contact information for appointed counsel. Because plaintiff has been appointed counsel, any further pleadings on Plaintiff's behalf should be filed solely through his appointed counsel. Signed by Senior Judge Donald E OBrien on 12/28/2012. (copy w/nef and docket sheets mailed to non-ecf plaintiff; copy w/nef and complaint mailed by certified mail to CCUSO care of each Defendant and to the Iowa Attorney General) (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
ARTHUR TRIPLETT,
Plaintiff,
vs.

No. 12-CV-4063-DEO
INITIAL REVIEW ORDER

CHARLES PALMER, JASON SMITH,
MARY BENSON, and DR. VEIT,
Defendants.
____________________
I.

INTRODUCTION AND BACKGROUND
This matter is currently before the Court on Arthur

Triplett’s [hereinafter Mr. Triplett] Motion for Leave to
Proceed in Forma Pauperis, Motion for Appointment of Counsel,
and 42 U.S.C. Section 1983 Complaint.

Mr. Triplett is an

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

IN FORMA PAUPERIS
The filing fee for a 42 U.S.C. § 1983 petition is $350.

28 U.S.C. § 1914(a). The doctrine of in forma pauperis allows
a plaintiff to proceed without incurring filing fees or other
Court costs. 28 U.S.C. § 1915(a)(1). However, prisoners must
1

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 December 22, 2012.

meet certain requirements in order to have their filing fee
waived. 28 U.S.C. 1915(a)-(b). A prisoner is defined as “any
person

incarcerated

or

detained

in

“violations of criminal law . . . .”

any

facility”

for

28 U.S.C. § 1915(h).

Under the statute, prisoners are required to pay filing fees
over time and are not entitled to proceed in forma pauperis as
to filing fees.

Id.

However, CCUSO is not a prison facility;

it “provides a secure, long term, and highly structured
environment for the treatment of sexually violent predators.”2
Moreover, the Iowa Code specifies that the types of persons
confined

at

CCUSO

are

not

prisoners.

They

are

civilly

committed patients who suffer from a “mental abnormality.”
I.C.A. § 229A (generally); I.C.A. § 229A.2(11).

Accordingly,

individuals held due to civil commitment under I.C.A. § 229A
are not prisoners and are not subject to 28 U.S.C. § 1915(a)(b).

See Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir.

2001), stating that those committed to state hospitals are not
prisoners as defined under 28 U.S.C. § 1915; Youngberg v.
Romeo, 457 U.S. 307, 321-22 (1982), stating that individuals
who

are

involuntarily

committed

“are

entitled

to

more

Iowa Department of Human Services Offer #401-HHS-014:
CCUSO,
1
http://www.dhs.state.ia.us/docs/11w-401-HHS-014CCUSO.pdf, last visited December 22, 2012.
2

2

considerate

treatment

than

criminals

whose

conditions

of

confinement are designed to punish;” and Michau v. Charleston
County, S.C., 434 F.3d 725 (4th Cir. 2006), cert. denied
Michau v. Charleston County, S.C., 126 S. Ct. 2936 (2006),
stating that:
[h]owever, [plaintiff] is presently being
detained under the SVPA, which creates a
system of civil, not criminal, detention.
... see also Kansas v. Hendricks, 521 U.S.
346,
365-69
(1997)
(concluding
that
Kansas's Sexually Violent Predators Act
established civil rather than criminal
detention scheme). Because [plaintiff’s]
detention under the SVPA is not the result
of a violation of criminal law, or of the
terms of parole, probation, or a pretrial
diversionary program, he does not meet the
PLRA's definition of [a prisoner]. See ...
Page v. Torrey, 201 F.3d 1136, 1139-40 (9th
Cir. 2000) (concluding that a person
detained under state's civil sexually
violent predator act is not a prisoner
within meaning of PLRA). Accordingly, the
PLRA provides no basis for the dismissal of
[plaintiff’s] complaints.
Id. At 727-28.

(Some internal citations omitted).

In order to qualify for in forma pauperis status, a
plaintiff must provide this Court an affidavit3 with the
following statements:

(1) statement of the nature of the

3

An affidavit is a “voluntary declaration of facts
written down and sworn to by the declarant before an officer
authorized to administer oaths.” Black’s Law Dictionary (9th
ed. 2009), affidavit.
3

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

costs

1915(a)(1).

or

give

security

therefor.

28

U.S.C.

§

Mr. Triplett’s applications substantially meet

the above requirements.

Mr. Triplett’s Motion to Proceed in

Forma Pauperis is granted.

The Clerk of Court shall file

Plaintiff’s Complaint forthwith.

No filing fee will be

assessed.
However, once any portion of a filing fee is waived, a
court must dismiss the case if a the Plaintiff’s allegations
of poverty prove untrue or the action in question turns out to
be frivolous, malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief.

28 U.S.C. §

1915(e)(2).
III.

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

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

to

relief.”

Pro

se

complaints,

no

matter

how

“inartfully pleaded are held to less stringent standards than
formal pleadings as drafted by a lawyer.” Hughes v. Rowe, 449
4

U.S. 5, 9 (1980) (internal citations omitted).
Although it is a long-standing maxim that a complaint’s
factual allegations are to be accepted as true at the early
stages of a proceeding, this does not require that a court
must entertain any complaint no matter how implausible.

The

facts pled “must [still] be enough to raise a right to relief
above the speculative level . . . .”
Twombly, 550 U.S. 544, 555 (2007).

Bell Atlantic v.

In other words, the claim

to relief must be “plausible on its face.”

Id. at 570.

A

claim is only plausible if a plaintiff pleads “factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

Where the complaint

does “not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it
has not ‘show[n]’ - that the pleader is entitled to relief.”
Id. at 1950 (citing Fed. Rule Civ. Proc. 8(a)(2)).

In

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

Id. at 1949.

42 U.S.C. § 1983 provides:
Every person who, under color of any
statute, ordinance, regulation, custom, or
5

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 . . . .
IV.

ISSUE AND ANALYSIS
Mr. Triplett is alleging a violation of his civil rights

under

42

U.S.C.

§

1983.

Mr.

Triplett

argues

that

the

Defendants, the administrators and medical professionals at
CCUSO, have violated his rights while acting under the color
of government authority.

Specifically, Mr. Triplett alleges

that the Defendants ignored his medical complaints for over a
year.

Mr. Triplett alleges that he had difficulty speaking,

but was mis-diagnosed by CCUSO as having acid reflux disease.
After a year of ineffective treatment, CCUSO finally allowed
Mr. Triplett to be examined by outside medical professionals,
who diagnosed Mr. Triplett with throat cancer.

Mr. Triplett

alleges he was damaged by the Defendants’ failure to seriously
investigate and treat his medical issue.
The

Court

involuntarily

notes

committed

that,
are

“[p]ersons
entitled

to

who
more

have

been

considerate

treatment and conditions of confinement than criminals whose
6

conditions of confinement are designed to punish.” Youngberg,
457 U.S. at 321-22.

There has been some debate regarding the

appropriate standard in this type of case.

In the context of

inmate medical-care claims, Courts have stated that:
[t]he
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).

Recently, Courts

have begun applying the deliberate indifference standard to
civilly committed individuals.

See Senty-Haugen v. Goodno,

462 F.3d 876, 889 (8th Cir. 2006) which applied the deliberate
indifference standard to a medical-care claim raised by a
patient involuntarily committed as a sexually violent predator

7

under

the

14th

Amendment.

However,

this

Court

is

not

persuaded that deliberate indifference is necessarily the
appropriate standard in all civil detainee cases.

The Court

believes that in some, if not most, circumstances Youngberg v.
Romeo, 457 U.S. 307, 321-22 (1982) provides the applicable
standard regarding the treatment of civilly detained patients.
The Youngberg Court recognized that, though the Eighth
Amendment is inapplicable, involuntarily committed persons
have

substantive

Amendment.

rights

arising

457 U.S. at 315.

under

the

Fourteenth

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.

interests

to

Among the most basic substantive liberty

which

involuntarily

committed

persons

are

entitled are rights "to adequate food, shelter, clothing, and
medical" care.

Id.

At 315.

Thus, under Youngberg, the

standard for civil detainees is whether they were provided
adequate medical care.
Clearly, the deliberate indifference standard is the
stricter

test,

far

more

deferential

regarding detainees’ medical care.

8

to

the

Government

As will be discussed

below, the Court finds that Mr. Triplett’s claim should be
allowed

to

proceed

past

initial

review

stricter, deliberate indifference standard.

even

under

the

Accordingly, the

Court will not consider, initially, Mr. Triplett’s claim under
the Youngberg standard.

This decision does not forestall the

Court’s ability to apply the Youngberg standard at a later
point in the proceeding.
Under the deliberate indifference standard, Mr. Triplett
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. Triplett 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.

Gutierrez v. Peters, 111 F.3d 1364,

1369 (7th Cir. 1997).

Second, Mr. Triplett must establish

that the defendants acted with a “‘sufficiently culpable state

9

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 officials actually intended harm to befall him from the
failure to provide adequate care.
“[I]t

is

enough

to

show

that

Walker, 293 F.3d at 1037.
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,
not by ‘hindsight’s perfect vision.’”

10

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)).
Accordingly, to succeed in his claim, Mr. Triplett must
show that the he has a significantly serious medical condition
and that the Defendants acted with a sufficient culpable state
of mind.

Mr. Triplett alleges that he has throat cancer.

This is clearly a serious medical condition.

Additionally,

Mr. Triplett alleges that the Defendants willfully ignored the
signs and symptoms of Mr. Triplett’s cancer for over a year.
If those allegations are true, a fact finder could determine
that the Defendants’ state of mind was such that they acted in
a deliberately indifferent manner.
be

allowed

to

proceed

beyond

Mr. Triplett’s claim must

the

initial

review

stage.

Because Mr. Triplett’s claim must be allowed to proceed under
the stricter deliberate indifference standard, it is equally
clear that Mr. Triplett’s claim should be allowed to proceed
if the adequate care standard applies.
V.

APPOINTMENT OF COUNSEL
28

U.S.C.

§1915(e)(1)

provides

that

appointment

of

counsel for a person unable to afford counsel is within this
Court’s discretion.
situation

and

the

Given Mr. Triplett’s current financial
nature

of

11

his

claim,

his

Motion

for

Appointment of Counsel is granted.

The Clerk of Court shall

appoint Attorney Patrick Parry in accordance with United
States District Court for the Northern District of Iowa
Administrative Order No. 12-AO-0013 forthwith.

The Clerk of

Court is further instructed to send Plaintiff a copy of this
Order and the contact information for appointed counsel.
Because Plaintiff has been appointed counsel, any further
pleadings on Plaintiff’s behalf should be filed solely through
his appointed counsel. Appointed Counsel will file an Amended
Complaint in conformity with this Order.
VI.

OTHER CLAIMS IN MR. TRIPLETT’S COMPLAINT
Beyond issues related to his medical health, Mr. Triplett

claims that Nurse Benson and the other Defendants have injured
numerous other patients through medical negligence.

Mr.

Triplett can only raise claims on his own behalf.
Mr. Triplett’s request for relief asks the Court to:
Order a Federal Investigation into the
medical
practices
and
policies
of
Respondents, specifically in regards to the
critical delay since referrals to the
University of Iowa Hospitals and Clinics
which have resulted in numerous unwarranted
deaths
of
patients
under
care
and
custody...
That request is beyond power and jurisdiction of this Court,
12

sitting

in

a

42

U.S.C.

§

1983

action.

In

appropriate

situations, the Court can enjoin individuals, organizations,
and

government

agencies

from

taking

particular

actions.

However, the Court does not have the power to order a Federal
Investigation into the conditions at CCUSO. Because the Court
has no power or jurisdiction to entertain those issues raised
by Triplett’s Complaint, they must be dismissed.
VII.

CONCLUSION
For the reason set out above: Mr. Triplett’s application

to proceed in forma pauperis is granted.

The Clerk of Court

shall file the complaint and deliver, by certified mail,
copies

of

this

Order

and

attached

waiver

of

service

of

summons, along with copies of the filed Complaint to the CCUSO
facility, care of each named Defendant, and to the Iowa
Attorney General.

Mr. Triplett’s 14th Amendment claim under

42 U.S.C. § 1983 is allowed to proceed as described above.
Mr. Triplett’s application for the appointment of counsel is
granted as set out herein, and appointed counsel shall file an
amended complaint within twenty (20) days from the date of
this Order.

To the extent Mr. Triplett raises issues and

requests relief beyond the power and jurisdiction of this
Court, they are dismissed.

13

IT IS SO ORDERED this 28th day of December, 2012.

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

14

NOTICE OF LAWSUIT
and REQUEST FOR
WAIVER OF SERVICE OF SUMMONS
TO THE NAMED DEFENDANT(S) IN THE FOLLOWING CAPTIONED ACTION:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
ARTHUR TRIPLETT,
Plaintiff,

No. 12-CV-4063-DEO

v.

INITIAL REVIEW ORDER

CHARLES PALMER, Director; JASON
SMITH, Director; MARY BENSON, and DR.
VEIT,
Defendants.
____________________
A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A
copy of the complaint and a copy of the corresponding order from this Court are attached. This complaint
has been filed in the United States District Court for the Northern District of Iowa.
Pursuant to Rule 4 of the Federal Rules of Civil Procedure, you have an obligation to cooperate
in saving unnecessary costs of service of summons and complaint. Please sign the enclosed document
where appropriate acknowledging receipt of the complaint and notice of this pending lawsuit and waiving
formal service of summons. After signing the enclosed document, please return it to the United States
Clerk’s Office in the envelope provided within thirty (30) days of this date: December 28, 2012.
.
I affirm that this notice and request for waiver of service of summons is being sent to you on behalf
, 2012.
of the plaintiff, this December 28

/s/ des, Deputy Clerk
Signature (Clerk’s Office Official)
Northern District of Iowa

15

ACKNOWLEDGMENT OF RECEIPT OF
NOTICE OF LAWSUIT,
and WAIVER OF SERVICE OF SUMMONS
(**Return this document within thirty days after ______________________________, to the United States
December 28, 2012
Clerk’s Office in the envelope provided.)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
ARTHUR TRIPLETT,
Plaintiff,

No. 12-CV-4063-DEO

v.

INITIAL REVIEW ORDER

CHARLES PALMER, Director; JASON
SMITH, Director; MARY BENSON, and DR.
VEIT
Defendants.
____________________
I acknowledge receipt of the complaint and notice of the lawsuit in which I (or the entity on whose
behalf I am addressed) have been named a defendant. I have received and/or read the complaint
accompanying this document.
I agree to save the cost of service of a summons and an additional copy of the complaint by not
requiring that I (or the entity on whose behalf I am acting) be served with judicial process in the manner
provided by Rule 4 of the Federal Rules of Civil Procedure. I hereby waive service of summons.
I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or
to the jurisdiction or venue of the Court except for objections based on a defect in the service of summons.
I understand that a judgment may be entered against me (or the entity on whose behalf I am acting) if an
answer or motion under Rule 12 of the Federal Rules of Civil Procedure is not served within 60 days after
, (the date Notice, Waiver and corresponding documents were sent or from
the date of the filing of the Amended Complaint, whichever is later) .
Date

Signature
Printed name
As
(Title)

of
(Entity)

Address Form
Case Number: 12-CV-4063-DEO
To:
RE:

December 28, 2012
Date: _____________________

Clerk of Court
Service on Named Defendants
Below, please find the known (or likely) addresses for the following
persons/entities who have been named as defendants to this action:

Defendant:

ALL DEFENDANTS
c/o Civil Commitment Unit for Sexual Offenders
1251 West Cedar Loop
Cherokee, Iowa 51012
Gretchen Witte Kraemer
Department of Justice
Regents and Human Services Division
Hoover Building
Des Moines, Iowa 50319-0109

17