Caldwell v. Palmer et al

Filing 14

ORDER on Objection to 3 Initial Review Order. Plaintiff's Counsel has twenty days to file an amended application to proceed in forma pauperis which meets the guidelines as laid out above. Signed by Senior Judge Donald E OBrien on 3/26/13. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
ROCKY CALDWELL
Plaintiff,

No. 12-CV-4115-DEO

vs.
CHARLES PALMER, JASON SMITH,
and MARY BENSON

ORDER ON OBJECTIONS TO
INITIAL REVIEW ORDER

Defendants.
____________________
I.

INTRODUCTION AND BACKGROUND
On January 23, 2013, this Court entered an Initial Review

Order [hereinafter IRO] granting Rocky Caldwell’s [hereinafter
Mr. Caldwell] Motion for Leave to Proceed in Forma Pauperis,
Motion for Appointment of Counsel, and allowing his 42 U.S.C.
Section

1983

Complaint

to

proceed.

Mr.

Caldwell

is

an

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

Pursuant to

that Order, Mr. Caldwell’s appointed attorney filed an Amended
Complaint

1

on

March

22,

2013.

On

March

26,

2013,

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,
http://www.dhs.state.ia.us/docs/11w-401-HHS-014-CCUSO.pdf,
last visited March 26, 2013.

Defendants filed an Answer to the Amended Complaint as well as
an Objection to the Court’s grant of in former pauperis status
to Mr. Caldwell.
II.

OBJECTIONS TO 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,

both

individuals and prisoners must 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 any facility” for “violations of criminal law . . . .”
U.S.C. § 1915(h).

28

Under that statute, prisoners are required

to pay filing fees over time and are not entitled to proceed
in forma pauperis as to filing fees.

Id.

Additionally, a

prisoner seeking to bring a civil action shall submit a
certified

copy

of

the

trust

fund

account

statement

(or

institutional equivalent) for the prisoner for the 6-month
period immediately preceding the filing of the complaint.
U.S.C.A. § 1915(b).

2

28

The Defendants’ Objection makes three arguments:

1) Mr.

Caldwell has failed to meet the strict criteria for the
affidavit required for the granting of in forma pauperis
status; 2) Mr. Caldwell’s affidavit misstates his monthly
income; and 3) Mr. Caldwell has failed to submit a six month
accounting as required by 28 U.S.C.A. § 1915(b).
The Court agrees with the Defendant regarding the first
issue.

Strictly

speaking,

technically

deficient

notarized.2

However,

represented

himself

in
the
pro

application and affidavit.

Mr.

that

it

Court
se

at

Caldwell’s

affidavit

is

neither

notes

that

the

time

signed

Mr.
he

is
nor

Caldwell

filed

the

Accordingly, the Court will grant

his appointed Counsel 20 days to file an amended application
to proceed in forma pauperis and an amended affidavit.

The

amended documents shall meet the technical requirements of
being signed and notarized.
The Defendants next argue that Mr. Caldwell’s initial
application misstates how much he makes on a monthly basis.

2

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

The amended application filed by Mr. Caldwell’s counsel shall
correct any errors regarding his income.
Finally, the Defendants argue that Mr. Caldwell has
failed to file a six month accounting as required by 28
U.S.C.A. § 1915(b). However, the Court notes that 28 U.S.C.A.
§

1915(b)

applies

to

repeatedly

stated,

CCUSO

“provides

a

secure,

“prisoners.”
is

long

not

term,

As

a

this

prison

and

Court

has

facility;

highly

it

structured

environment for the treatment of sexually violent predators.”3
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)See Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir.

(b).

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

3

“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-014-CCUSO.pdf, last
visited March 26, 2013.

4

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.)
Accordingly, because Mr. Caldwell is a patient, not a

prisoner, he is not required to provide a six month accounting
under 28 U.S.C.A. § 1915(b).

Thus, to qualify for in forma

pauperis status, Mr. Caldwell need only provide the Court (1)
statement of the nature of the action, (2) statement that
plaintiff is entitled to redress, (3) statement of the assets
5

plaintiff possesses, and (4) statement that plaintiff is
unable to pay filing fees and court costs or give security
therefor.

28 U.S.C. § 1915(a)(1).

Mr. Caldwell’s Amended

Complaint meets the first two requirements.

Accordingly, Mr.

Caldwell’s Counsel need only address the final two elements in
his amended application for in forma pauperis status.
III.

CONCLUSION
For the reasons set out above, Plaintiff’s Counsel has

twenty days to file an amended application to proceed in forma
pauperis which meets the guidelines as laid out above.
IT IS SO ORDERED this 26th day of March, 2013.

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

6