Matlock v. Palmer et al DO NOT DOCKET IN THIS CASE - ALL PLEADINGS MUST BE DOCKETED IN THE LEAD CASE C12-4086-DEO

Filing 2

INITIAL REVIEW ORDER granting 1 PRO SE MOTION for Leave to Proceed in forma pauperis filed by Calvin Matlock. Clerk of Court will file Mr. Matlock's Complaint, and no filing fee will be assessed. The Clerk of court shall serve the defendants with the Complaint and a copy of this Order as per the attached service forms. The Court orders that Mr. Matlock's claim be consolidated with 12cv4086-DEO (which will be identified as the lead case). See text of Order. Signed by Senior Judge Donald E O'Brien on 2/15/13. (copy w/nef mailed to pro se Plaintiff; copy w/complaint sent certified mail to defendants and Gretchen Witte Kraemer) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
CALVIN MATLOCK
No. 13-CV-4018-DEO1

Plaintiff,
vs.

INITIAL REVIEW ORDER

JASON SMITH AND CHARLES
PALMER
Defendants.
____________________

I.

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

Matlock’s
Complaint.

[hereinafter

Mr.

Matlock]

42

U.S.C.

§

1983

Mr. Matlock is an involuntarily committed patient

at the Civil Commitment Unit for Sex Offenders (CCUSO) in
Cherokee, Iowa.2

1

For the reasons later stated in this Order, the Clerk
of Court shall also file a copy of this Order in 12-CV-4086DEO.
2

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 February 14, 2013.

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
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.”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
3

Iowa Department of Human Services Offer #401-HHS-014:
CCUSO,
http://www.dhs.state.ia.us/docs/11w-401-HHS-014CCUSO.pdf, last visited February 14, 2013.
2

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

considerate

treatment

committed
than

“are

criminals

entitled

whose

to

more

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

3

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 affidavit4 with the
following statements:

(1) statement of the nature of the

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

or

give

security

therefor.

28

U.S.C.

§

1915(a)(1). Mr. Matlock’s application substantially meets the
above requirements.

Mr. Matlock’s Motion to Proceed in Forma

Pauperis is granted.
Matlock’s Complaint.

The Clerk of Court shall file Mr.
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

4

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.
4

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.”

A document filed pro se “is to be

liberally construed,” Estelle v. Gamble, 429 U.S. 97, 106
(1976) and “a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers,” ibid. citing Cf. Fed. Rule Civ. Proc.
8(f) stating “[a]ll pleadings shall be so construed as to do
substantial justice.”

See also Erickson v. Pardus, 551 U.S.

89, 94 (2007).
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).
5

Bell Atlantic Corp. 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
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 . . . .

6

IV.

ISSUE
Mr.

Matlock’s

allegations:

pro

se

Complaint

makes

two

general

1) That he has been denied the opportunity to

complete treatment at CCUSO pursuant to the terms of I.C.A. §
229A and CCUSO’s Handbook; and 2) that the CCUSO program has
become punitive in nature.
V.

ANALYSIS
As noted above, 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. However, this does not mean
that a court must, or even has jurisdiction to, entertain any
complaint no matter how implausible.

The facts pled “must

[still] be enough to raise a right to relief above the
speculative level . . . .”

Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007).
In the present Complaint, Mr. Matlock argues that the
Defendants have violated a release contract.

Specifically,

Mr. Matlock alleges that he completed treatment many years
ago, but has been in “transitional release” for over six years
and that CCUSO refuses to release him completely. Mr. Matlock
alleges that the reason he has been denied release has nothing
7

to do with his progress, but rather because other patients
that have been released have re-offended.
The general theme of his Complaint is that CCUSO has
repeatedly
‘contracts’

set

up

with

procedures
its

and

patients.

entered
These

into

treatment

procedures

and

agreements are meant to be a means whereby the patients can
eventually achieve their release, by completing treatment
benchmarks, getting work, attending church, and so forth. Mr.
Matlock states that he has completed all the requirements and
is only in treatment “on paper”; but, because of the actions
of other past patients, and his inability to find housing,
CCUSO will not release him.
At the outset, the Court notes that CCUSO has broad
discretion

to

attempt

to

treat

its

patients,

entering into treatment agreements with them.

including

CCUSO has a

process for appealing and contesting decisions related to
their treatment-progression decisions.

See Swanson v. Civil

Commitment Unit for Sex Offenders, 737 N.W.2d 300, 305 (Iowa
2007). However, simply because CCUSO has an interest in
treating its patients does not require that those patients

8

forfeit their constitutional due process and equal protection
rights.
“When a state action threatens to deprive a person of a
protected liberty or property interest, a person is entitled
Meyer v. Jones, 696 N.W.2d 611,

to procedural due process.”
614 (Iowa 2005).

To determine what process is due a person

who has been deprived of a protected liberty or property
interest, the Courts use a test adopted by the Supreme Court
in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In Mathews,
the Court held that in order to determine what the “specific
dictates of due process” generally requires, “the court must
consider three factors: (1) the private interest that will be
affected by the official action; (2) the risk of an erroneous
deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute
procedural safeguards; and (3) the Government’s interest,
including

the

administrative

function
burdens

involved

that

the

9

the

additional

procedural requirement would entail.”
335.

and

fiscal
or

and

substitute

Mathews, 424 U.S. at

Courts have repeatedly found no constitutional bar to the
civil

confinement

of

sexually

violent

predators

with

untreatable conditions when confinement is necessary to the
protect the public.

However, those who are involuntarily

committed retain a liberty interest in the requirements and
procedures of I.C.A. § 229A.

See In re M.T., 625 N.W.2d 702,

706 (Iowa 2001), finding that a person’s liberty interests are
at stake at an involuntary commitment hearing, and “therefore
it

is

imperative

that

the

statutory

requirements

and

procedures are followed.”
As stated by the Iowa Supreme Court, the State has:
a duty to provide adequate food, shelter,
clothing, and medical care.... [This is
because a patient involuntarily committed
in a state institution] enjoys [the]
constitutionally protected interests in
conditions of reasonable care and safety,
reasonably
nonrestrictive
confinement
conditions, and such training as may be
required by these interests.
Swanson, 737 N.W.2d at 308-09 (citing Youngberg, 457 U.S. 307,
324 (1982)).
However, the Constitution only requires us to make certain
that professional judgment was in fact exercised.

10

This Court has seen a number of cases from patients at
CCUSO raising similar claims.

Mr. Matlock has presented a

persuasive argument that he, and other CCUSO patients, may
have developed a liberty interest under the various rules,
handbooks, and procedures promulgated by the administrators of
CCUSO.5

Accordingly, this Court will allow Mr. Matlock’s

claim to proceed past the initial review phase.
A.

Punitive Actions

Mr. Matlock also argues that CCUSO’s policies have become

5

Courts
have
repeatedly
found
there
to
be
no
constitutional right to parole. See for example, State v.
Holmes, 276 N.W.2d 823, 830 (Iowa 1979). However, the Supreme
Court has said early release statues can create a liberty
interest protected by due process guarantee. See Swarthout v.
Cooke, 131 S. Ct. 859, 862 (2011) reh'g denied, 131 S. Ct.
1845, 179 L. Ed. 2d 796 (2011), stating that: “[w]hatever
liberty interest exists is, of course, a state interest
created by California law.
There is no right under the
Federal Constitution to be conditionally released before the
expiration of a valid sentence, and the States are under no
duty to offer parole to their prisoners. When, however, a
State creates a liberty interest, the Due Process Clause
requires fair procedures for its vindication "and federal
courts will review the application of those constitutionally
required procedures. In the context of parole, we have held
that the procedures required are minimal.”
The Court is aware that the present situation regarding
patients at CCUSO is substantially different from inmates
being denied parole. However, it is possible that Mr. Matlock
has articulated a claim not wholly dissimilar from the type of
liberty interest discussed in the Swarthout case.
11

punitive in nature.

Mr. Matlock’s Complaint has met the

standard articulated above regarding this claim. Accordingly,
the Court will also allow this issue to proceed.
VI. CASE CONSOLIDATION
Mr. Matlock has not made a request for the appointment of
Counsel.

This Court notes that Mr. Matlock’s claims are

essentially the same as the claims raised in another lawsuit
recently filed by CCUSO patient Damon Willis.
5:12-CV-04086.

That case is

On January 24, 2013, the Court entered an

Initial Review Order allowing Mr. Willis’ case to proceed and
appointing attorney Jay Denne to represent Mr. Willis.
According to Rule of Civil Procedure 42, “[i]f actions
before the court involve a common question of law or fact, the
court may:

(1) join for hearing or trial any or all matters

at issue in the actions; (2) consolidate the actions; or (3)
issue any other orders to avoid unnecessary cost or delay.”
Fed. R. Civ. P. 42.

“[C]onsolidation pursuant to Rule 42(a)

is permissive and vests a purely discretionary power in the
district

court...In

exercising

that

discretion,

district

courts must weigh the risk of prejudice and confusion wrought
by consolidation against the risk of inconsistent rulings on
12

common factual and legal questions, the burden on the parties
and the court, the length of time, and the relative expense of
proceeding

with

consolidated.

separate

lawsuits

if

they

are

not

Pigott v. Sanibel Dev., LLC, 2007 WL 3245019

(S.D. Ala. 2007).
It is clear to this Court that Mr. Matlock’s claims
involve common legal and factual issues with 12-CV-4086.
Specifically, both cases will require a detailed analysis of
CCUSO’s policies, the ability of patients who have completed
requirements to be released, whether CCUSO’s policies infringe
any

constitutional

rights,

and

whether

punitive and arbitrary in its policies.

CCUSO

has

become

Additionally, the

cases involves the same two of the same Defendants, both CCUSO
administrators. There is little risk of prejudice as a result
of this consolidation since 12-CV-4086 was recently filed and
has

not

progressed

beyond

the

initial

review

stage.

Accordingly, this case should be consolidated with 12-CV-4086.
VII.

CONCLUSION
For the reasons set out above, Mr. Matlock’s application

to proceed in forma pauperis is granted.

The Clerk of Court

will file Mr. Matlock’s Complaint, and no filing fee will be
13

assessed.

The Clerk of Court shall serve the defendants with

the Complaint and a copy of this Order as per the attached
service forms.
The Court orders that Mr. Matlock’s claim be consolidated
with 12-CV-4086-DEO (which will be identified as the lead
case).6

Due to the consolidation of cases, the previously

imposed deadline for filing an amended complaint established
in the lead case, 12-CV-4086-DEO (See Order of January 24,
2013, Docket No. 2), is hereby extended to thirty days from
the date of this Order.
IT IS SO ORDERED this 15th day of February, 2013.

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

6

Attorney Jay Denne is the current counsel of record in
12-CV-4086-DEO. Because these cases are now consolidated, he
is appointed as the counsel of record for Mr. Matlock.
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
CALVIN MATLOCK,
Plaintiff,

No. 13-CV-4018-DEO

v.
CHARLES PALMER, et al.,
Defendant.
____________________
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: February 15, 2013
I affirm that this notice and request for waiver of service of summons is being sent to you on behalf
February 15
, 2013.
of the plaintiff, this

/s/ djs
Signature (Clerk’s Office Official)
Northern District of Iowa

15

ACKNOWLEDGMENT OF RECEIPT OF
NOTICE OF LAWSUIT,
and WAIVER OF SERVICE OF SUMMONS

February 15, 2013
(**Return this document within thirty days after ______________________________, to the United States
Clerk’s Office in the envelope provided.)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
CALVIN MATLOCK,
Plaintiff,

No. 13-CV-4018-DEO

v.
CHARLES PALMER, et al.,
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 the filing
of the amended complaint, whichever is later).
Date

Signature
Printed name
As
(Title)

of
(Entity)

Address Form
Case Number: 13-CV-4018-DEO
To:
RE:

February 15, 2013
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