Scott v. Benson et al

Filing 38

ORDER on Motion to Dismiss and Motions for Temporary Injunction. The Court grants the Defendants Motion to Dismiss CCUSO as a defendant in this case. See text of Order for details regarding temporary injunction. Signed by Senior Judge Donald E OBrien on 12/11/13. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
DANIEL J. SCOTT
Plaintiff,

No. 13-CV-4028-DEO

vs.
MARY BENSON, ARNP; JASON
SMITH, Director of CCUSO;
and CCUSO.

ORDER ON MOTION TO DISMISS
AND MOTIONS FOR TEMPORARY
INJUNCTION

Defendants.
____________________
TABLE OF CONTENTS
I.

INTRODUCTION . . . . . . . . . . . . . . . . . . . .

2

II.

BACKGROUND AND PROCEDURAL HISTORY

. . . . . . . . .

2

III. ISSUES . . . . . . . . . . . . . . . . . . . . . . .

8

IV.

TEMPORARY INJUNCTION STANDARD

. . . . . . . . . . . 10

V.

ANALYSIS . . . . . . . . . . . . . . . . . . . . . . 11
A. Medical Treatment . . . . . . . . . . . . . . . 11
B. Diet . . . . . . . . . . . . . . . . . . . . . . 23
C. Reimbursement for Medical Devices . . . . . . . 30
D. Motion to Dismiss CCUSO as a Defendant . . . . . 34
E.
Authority to Remove Prostheses and Confiscate
Wheelchair
. . . . . . . . . . . . . . . . . . 35
F. Authority to Remove the Court’s Number from Mr.
Scott’s Approved Number List
. . . . . . . . . 37
G. Mr. Scott’s Emergency Motion of October 15, 2013
. . . . . . . . . . . . . . . . . . . . . . . 39
H. Possible Case Resolutions . . . . . . . . . . . 42

VI.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . 46

I.

INTRODUCTION
This matter is currently before the Court on Daniel

Scott’s [hereinafter Mr. Scott] Amended Complaint, Docket No.
11,

requesting

injunctive

relief.

Mr.

Scott

is

an

involuntarily committed patient at the Civil Commitment Unit
for Sex Offenders (CCUSO) in Cherokee, Iowa.1
Court is the Defendants’ Counter Claim.

Also before the

Docket No. 12.

In

their Counter Claim, the Defendants also request injunctive
relief.
II.

BACKGROUND AND PROCEDURAL HISTORY
Mr. Scott is a patient at CCUSO.

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).

As set out in that case:

The record made at trial reveals that in
1984 twenty-seven-year-old Scott took a
customer back to his tow-service business
and forced her to perform oral sex upon
him.
He pled guilty to third-degree
kidnapping and sexual abuse in exchange for
receiving immunity from other sexual
assaults that were committed around this

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,
http://www.dhs.state.ia.us/docs/11w-401-HHS-014-CCUSO.pdf,
last visited December 9, 2013.
2

same time. Scott was released from prison
in the fall of 1989.
The following March, thirty-three-year-old
Scott assaulted a female acquaintance by
grabbing her breast and forcing her to
place her hand on his exposed penis while
he gave her a ride home. He was convicted
of assault with intent to commit sexual
abuse and sentenced to prison.
After his release from prison, Scott lost
his left leg in a motorcycle accident and
began working as a taxicab driver.
On
September 2, 1997, forty-year-old Scott
sexually assaulted a female passenger by
grabbing her breasts in his cab. The next
day, he assaulted another female passenger
in a similar manner. Scott was convicted
of assault with intent to commit sexual
abuse and third-degree sexual abuse as an
habitual offender.
The trial record also reveals Scott has an
extensive history of non-sexual criminal
acts commencing with theft of Christmas
lights at age eleven.
By 1982, he had
committed seven felony-grade thefts.
By
the time of his first sexual assault
conviction, Scott estimated he had written
fifty to seventy fraudulent checks. Over
the course of his life, Scott has committed
nearly 100 incidents of theft, forgery,
fraudulent
practice,
harassment
and
disorderly conduct.
Scott, 742 N.W.2d 605 (Table) at 1-2. Since his commitment to
CCUSO, Mr. Scott has filed several suits before this Court.
The relevant history is set out below.

3

On August 8, 2011, this Court conducted an initial review
of a Complaint filed by Mr. Scott in the 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.
before the Court.2
attorney,

Gretchen

That case is still pending

On February 2, 2013, the Defendants'
Kraemer,

filed

11-CV-4055-DEO, Docket No. 16.

an

Emergency

Motion.

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

against

his

will.

Id.

The

Court

granted

the

Defendants’ Emergency Motion on the same day. 11-CV-4055-DEO,
Docket No. 17.

2

The Court’s Order on the Defendants’ Motion for Summary
Judgment is currently on appeal before the 8th Circuit Court
of Appeals.
4

On March 14, 2013, Ms. Kraemer filed another Emergency
Motion stating that Mr. Scott was refusing treatment for an
infection.
Defendants

Ms.
to

Kraemer
treat

requested
Mr.

this

Scott

Court

against

allow
his

the

will.

11-CV-4055-DEO, Docket No. 58.
On

March

15,

2013,

the

Court

conducted

regarding the Defendants' Emergency Motion.

a

hearing

Both Mr. Parry,

Mr. Scott's counsel, and Ms. Kraemer appeared by telephone.
The Court advised the parties of the present Complaint, in
which Mr. Scott argues that forced medication is a violation
of his constitutional rights.

The Court had originally

received this Complaint in April of 2012.

However, the Court

did not consider it as a new Complaint, because it was
captioned as a filing in 11-CV-4055-DEO.
standing

order

in

11-CV-4055-DEO,

which

Pursuant to a
stated

that

all

filings must be made by counsel, the Court forwarded the
filing to Mr. Parry.

No further action was taken on it by

either Court or counsel.
On March 18, 2013, the parties appeared for a second
hearing on the Defendants' Emergency Motion.

The Defendants

supplied the Court a brief, arguing that because Mr. Scott is
detained by the State, the Defendants have an interest in

5

preserving his life.

Mr. Parry maintained that forcing

medication on Mr. Scott was a violation of his constitutional
rights, and, secondly, that even if some court could order Mr.
Scott to receive medical treatment, the Federal Court did not
have jurisdiction to do so.

Based upon the serious nature of

Mr. Scott's medical condition, and relying on the Defendants'
brief, the Court entered an order (11-CV-4055-DEO, Docket No.
64), authorizing the Defendants to transport Mr. Scott to a
hospital and treat his infection.
At the hearing on March 18, 2013, the Court also advised
the parties of its intention to conduct an initial review of
the

present

Complaint

heading, 13-CV-4028.

and

to

file

it

under

the

present

Because of the serious nature of the

issue, the Court advised counsel that it would conduct an
emergency hearing as soon as Mr. Scott was medically able,
regarding his request for a permanent injunction to prohibit
the Defendants from forcing him to receive medical treatment.
On April 3, 2013, the Court entered an Initial Review Order in
the present case, 13-CV-4028.

Docket No. 6.

On May 17, 2013,

the Plaintiff filed an Amended Complaint, Docket No. 11,
requesting the injunctive relief.

On June 6, 2013, the

Defendants filed an Answer and Counter Claim.

6

Docket No. 12.

On September 5, 2013, the Court traveled to the CCUSO
unit

in

Motions

Cherokee,
for

Iowa,

and

conducted

(Preliminary/Temporary)

a

hearing

Injunctive

on

the

Relief

contained in the Amended Complaint and Counter Claim, Docket
No.’s 11 and 12.3

At the conclusion of that hearing, the

Court instructed the parties to file briefs outlining their
arguments, as well as proposed orders. On September 11, 2013,
the Defendants filed their post-hearing brief. Docket No. 21.
On September 20, 2013, the Plaintiff filed his post-hearing
brief.

Docket No. 24.

On September 27, 2013, the Defendants

filed a proposed order.

Docket No. 27.

On September 30,

2013, the Plaintiff filed his proposed order.

Docket No. 30.

After the filing of the parties’ proposed orders, the Court
deemed

the

matter

submitted

and

took

the

issues

under

advisement.
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
3

Although neither the Amended Complaint or the Counter
Claim specifically request preliminary/temporary injunctions,
the parties orally stated that their filings should be
construed to request preliminary/temporary injunctions during
the status conference held on July 31, 2013. See Docket No.
17.
7

these ex-parte communications.

See Docket No 31, Ex. 1.

In

response, the Defendants filed a Supplement on October 15,
2013.

Docket No. 31.

On that same date, the Plaintiff filed

a request for an Emergency Hearing/Order. Docket No. 32. The
Court conducted a telephonic hearing on the Emergency Motion
on October 16, 2013.4

After taking all the issues under

consideration, the Court now enters the following.
III.

ISSUES
Mr. Scott’s Amended Complaint raises numerous issues.

Relevant to the present Motion for Temporary Injunction, the
Court will address those issues addressed at the September 5,
2013, hearing and contained in Mr. Scott’s post-hearing brief:
1) Mr. Scott requests an injunction prohibiting CCUSO from
forcing unwanted medical care on him and allowing him to seek
appropriate medical care exclusively from University of Iowa
Hospital.

2) Mr. Scott requests an injunction prohibiting

CCUSO from giving him a special “medical” diet/meal plan.
Mr.

Scott

requests

an

injunction

prohibiting

CCUSO

3)

from

requiring reimbursement for medical devices such as prosthetic
limbs.5
4

Discussed in Section V(G), p. 39, below.

5

At the hearing, Mr. Scott addressed other issues, such
as his request for a walker and his request to have his
8

The Defendants’ Counter Claim also raises numerous issues
in the context of a Motion for Injunctive Relief.

The Court

will address those issues discussed during the September 5,
2013, hearing and contained in the Defendants’ post-hearing
brief, Docket No. 21. 1) The Defendants request an injunction
allowing them to provide medically appropriate treatment for
Mr. Scott, even if it is against his will.

2) The Defendants

request the Court dismiss Mr. Scott’s claim regarding his diet
on res judicata grounds.

3) The Defendants request the

ability to charge Mr. Scott 20% per pay period to be applied
towards the cost of his medical device(s).

4) The Defendants

argue that CCUSO is not a proper Defendant and should be
dismissed form this case.

5) The Defendants request an

injunction allowing them to remove Mr. Scott’s prostheses or
confiscate his wheelchair if medically necessary or necessary
to protect the safety of CCUSO or other patients at CCUSO.

6)

The Defendants request authority to remove the Court from Mr.
Scott’s list of approved phone numbers in an attempt to
curtail the number of ex-parte communications between Mr.
Scott and this Court.

7) Finally, the Defendants request the

electric wheelchair returned. It is the Court’s understanding
that those issues have been addressed and are now moot.
9

Court provide guidance regarding how these issues related to
Mr. Scott be resolved in the future.
The last set of issues the Court will address in this
Order are the issues raised and resolved during Mr. Scott’s
Emergency Hearing, conducted on October 16, 2013.
IV.

TEMPORARY INJUNCTION STANDARD
The parties generally agree on the applicable standard

regarding injunctive relief.

To grant an injunction, the

Court must consider the four Dataphase factors: (a) threat of
irreparable harm to the movant; (b) the state of the balance
between this harm and the injury that granting the injunction
will inflict on other parties; (c) the probability that the
movant

will

interest.

succeed

on

the

merits;

and

(d)

the

public

Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d

109, 114 (8th Cir. 1981) (en banc).

A preliminary injunction

is an extraordinary remedy and burden of establishing the
propriety of an injunction is on the movant. Watkins, Inc. v.
Lewis, 346 F.3d 841, 844 (8th Cir. 2003).

Of the factors,

success on the merits has been referred to as the most
important factor.

Roudachevski v. All-American Care Centers,

Inc., 648 F.3d 701, 706 (8th Cir. 2011) (citing Kai v. Ross,
336

F.3d

650,

653

(8th

Cir.

10

2003)).

“To

succeed

in

demonstrating a threat of irreparable harm, ‘a party must show
that the harm is certain and great and of such imminence that
there is a clear and present need for equitable relief.’”
Roudachevski, 648 F.3d at 706 (quoting Iowa Utils. Bd. v. Fed.
Commc’ns Cmm’n, 109 F.3d 418, 425 (8th Cir. 1996)).
Additionally,
questions

about

although

the

jurisdictional

Court
issues

has
in

orally
this

raised

case,

the

parties seem to agree that the Court may reach these issues
under the common 42 U.S.C. § 1983 analysis.
V.

ANALYSIS
A.

Medical Treatment

The first issue the Court will address is Mr. Scott’s
medical treatment.

As discussed above, Mr. Scott would like

an injunction allowing him to make decisions related to his
medical treatment.

Mr. Scott requests that he be allowed to

seek treatment from providers of his choice (usually from the
University of Iowa Hospital), refuse unwanted medication, and
make

determinations

treatment.6
injunction

On
which

the

related
other

would

to

when

hand,

the

allow

6

them

to

he

actually

Defendants
provide

needs

seek

an

reasonable

The Court notes that subsequent to the hearing in this
case, Mr. Scott filed a lawsuit against the University of Iowa
Hospital. See Docket No. 26, Ex. 1.
11

medical treatment to Mr. Scott, even when such treatment is
against his will.

The Defendants argue that Mr. Scott has a

history of refusing medical treatment until his ailments have
progressed to a dangerous level and such an injunction is
necessary

to

protect

both

Mr.

Scott

and

CCUSO

as

an

institution.
In his Complaint, Mr. Scott states, “I am being forced to
[receive] medical treatment against my will.” Docket #1, Att.
1, p. 9. Because of the hearings conducted in 11-CV-4055-DEO,
and the Orders entered in that case, the Court is aware of the
veracity of Mr. Scott’s allegation.

To wit, this Court has

entered orders in case 11-CV-4055 expressly allowing CCUSO to
treat Mr. Scott against his will.

Thus, the question the

Court

is

must

answer

in

this

Order

whether,

under

the

Dataphase factors, outlined above, CCUSO should be allowed to
continue to treat Mr. Scott against his will, or whether Mr.
Scott should be allowed to choose where, and when, he receives
medical treatment.

As stated above, the most important

Dataphase factor is likelihood of success on the merits.
Roudachevski, 648 F.3d at 706. To determine likely success on
the merits, the Court must consider the relevant case law
regarding an individual’s right to refuse treatment.

12

Many individual states have recognized a right to refuse
medical

treatment.7

As

the

Massachusetts

Supreme

Court

stated, “[t]here is implicit recognition in the law ... that
a

person

has

nonconsensual

a

strong

invasion

interest
of

his

in

being

bodily

free

from

integrity.”

Superintendent of Belchertown State Sch. v. Saikewicz, 370
N.E.2d 417, 424 (Massachusetts 1977).8

That Court went on to

say:
Of even broader import, but arising from
the same regard for human dignity and
self-determination,
is
the
unwritten
constitutional right of privacy found in
the penumbra of specific guaranties of the
Bill of Rights.
As this constitutional
guaranty reaches out to protect the freedom
of a woman to terminate pregnancy under
certain conditions, so it encompasses the
right of a patient to preserve his or her
right
to
privacy
against
unwanted
infringements of bodily integrity in
appropriate circumstances.
Superintendent of Belchertown State Sch., 370 N.E.2d at 424
(internal citations omitted).

7

The right to refuse medical treatment is commonly
codified.
See for example Minn. Stat. Ann. § 144.651,
Subdivision 12, stating that, “[c]ompetent patients and
residents shall have the right to refuse treatment...”
8

See also Schloendorff v. Society of New York Hopsital,
105 N.E. 92 (N.Y. 1914); Steele v. Hamilton Cty. Cmty. Mental
Health Bd., 736 N.E.2d 10; In re Brooks' Estate, 205 N.E.2d
435 (Ill. 1965).
13

Subsequently, the Supreme Court took up the issue of a
constitutional right to refuse medical treatment and stated
that:
Just this Term, in the course of holding
that a State's procedures for administering
antipsychotic medication to prisoners were
sufficient to satisfy due process concerns,
we recognized that prisoners possess ‘a
significant liberty interest in avoiding
the
unwanted
administration
of
antipsychotic drugs under the Due Process
Clause of the Fourteenth Amendment.’...
Still other cases support the recognition
of a general liberty interest in refusing
medical treatment... for purposes of this
case, we assume that the United States
Constitution would grant a competent person
a constitutionally protected right to
refuse lifesaving hydration and nutrition.
Cruzan by Cruzan v. Dir., Missouri Dept. of Health, 497 U.S.
261, 278-79 (1990)(internal citations omitted).

The dissent

in that case argued that a person’s right to refuse medical
treatment was not just suggested by the due process clause,
but is guaranteed by the constitutional right to privacy. Id.
at 302 (Justice Brennan dissenting).9
9

The Supreme Court

Stating that: “[t]oday the Court, while tentatively
accepting that there is some degree of constitutionally
protected liberty interest in avoiding unwanted medical
treatment, including life-sustaining medical treatment such as
artificial nutrition and hydration, affirms the decision of
the Missouri Supreme Court.... Because I believe that Nancy
Cruzan has a fundamental right to be free of unwanted
artificial nutrition and hydration, which right is not
outweighed by any interests of the State... I respectfully
14

subsequently

affirmed

the

(suggested)

right

to

refuse

treatment, stating, “[w]e have also assumed, and strongly
suggested,

that

the
to

Due

Process

refuse

Clause

unwanted

protects

lifesaving

the

traditional

right

medical

treatment.

Washington v. Glucksberg, 521 U.S. 702, 720

(1997).
Additionally, the Supreme Court has repeatedly taken up
the issue of whether, and to what extent, the Government can
force a detainee to take antipsychotic medication.

In those

cases, the Court has concluded:
the Constitution permits the Government
involuntarily to administer antipsychotic
drugs to a mentally ill defendant facing
serious criminal charges in order to render
that defendant competent to stand trial,
but only if the treatment is medically
appropriate, is substantially unlikely to
have side effects that may undermine the
fairness of the trial, and, taking account
of
less
intrusive
alternatives,
is
necessary
significantly
to
further
important
governmental
trial-related
interests.
Sell v. United States, 539 U.S. 166, 179 (2003).10
dissent.”
Cruzan,
dissenting).

497

U.S.

10

at

302

(Justice

Brennan

In the same case, the Court stated, “[f]or another
thing, courts typically address involuntary medical treatment
as a civil matter, and justify it on these alternative,
Harper-type grounds.
Every State provides avenues through
which, for example, a doctor or institution can seek
15

Based upon those opinions, this Court is persuaded that
Mr. Scott has a constitutional right to refuse treatment. The
question becomes, does CCUSO have a countervailing interest
that makes Mr. Scott’s success on the merits less certain?
As the Sells Court noted, all jurisdictions provide a
civil means to force medication on certain individuals.

The

Defendants’ brief sets out that civil process in Iowa:
In the more typical situation, a patient’s
right to refuse medication and treatment
can be overcome by a showing that the
patient is dangerous and that the person
cannot make responsible decisions on the
matter. In Iowa, there are two chapters
dedicated to providing the due process
around overriding a patient’s liberty
interest in refusing treatment. Iowa Code
chapter
229
permits
medication
and
treatment when the patient is determined to
be seriously mentally impaired – the
patient must have a mental illness, must be
unable to make responsible treatment
decisions, and must be a danger to self or
others. Iowa Code § 229.1(17); O’Connor v.
Donaldson, 422 U.S. 563, 576 (1975)
(requiring
proof
of
dangerousness)
(establishing dangerousness criterion; need
for treatment alone is not sufficient).
Additionally,
Iowa
Code
chapter
125
permits the involuntary treatment of
chronic substance abusers. When a patient
is not competent to make his or her own
decisions, a guardian may be appointed to
appointment of a guardian with the power to make a decision
authorizing medication when in the best interests of a patient
who lacks the mental competence to make such a decision.”
Sell, 539 U.S. at 182.
16

make substituted decisions under Iowa Code
§ 633.635. There is also a Board available
to make one-time medical decisions for a
person who is not competent to render those
decisions himself, and who has no guardian.
Iowa Code § 135.29.
Docket No. 21, p. 2-3.

However, the parties agree that Mr.

Scott is mentally competent and that the civil procedures are
not applicable.
Unfortunately, it seems that no analogous situation has
been considered (and reported) by other courts.

So the Court

must consider similar, if not precisely the same, situations.
As the Court stated in Docket No. 64 in 11-CV-4055, the Iowa
case of Polk County Sheriff v. Iowa District Court for Polk
County, 594 N.W.2d 421 (Iowa 1999) provides the Defendants
some support in their claim that they have an interest in
treating Mr. Scott against his will.

In that case, the Iowa

Supreme Court stated:
The issue is whether competent persons,
while being held as pretrial detainees,
have a constitutional right to refuse
unwanted medical treatment... In balancing
[detainee’s] diminished liberty interest to
refuse treatment against the State's
countervailing interests in preserving
life, preventing suicide, protecting the
interests of innocent third parties,
maintaining the ethical integrity in the
medical profession, and maintaining prison

17

security,
order,
and
conclude
the
State's
prevail.

discipline,
we
interests
must

Polk Cnty. Sheriff, 594 N.W.2d at 431. The Iowa Supreme Court
considered issues very similar to the arguments made by these
Defendants and stated that while the detainee would normally
have a right to refuse treatment, his unique status in custody
allowed the State’s countervailing interest to prevail and
forced medication was allowed.

However, it is worth noting,

that case was decided by a slim majority and was hotly
dissented from.
The majority's application of the legal
principles that are appropriate to this
issue
seriously
diminishes,
if
not
eliminates, to a pretrial detainee the
liberty interest established by the United
States Constitution. Under the majority's
analysis, it would be extremely unlikely
that any exercise of the liberty interest
to refuse unwanted medical treatment would
be upheld over a jailer's objection. This
is because a jailer could always conjure up
a fear that a prisoner's act of exercising
his constitutional liberty interest would
have a ‘fallout’ effect on other prisoners.
This possible fallout effect allegedly
would
then
cause
serious
adverse
consequences to the jail's security, order
and discipline requirements. As viewed by
the majority, that possibility is enough to
tip the scales under the balancing test and
necessitate a jettisoning of the liberty
interest of the United States Constitution.
A possibility of fallout is all that the
sheriff puts forth as evidence.
Beyond
18

that, there is no foundational support in
fact for the premise that prison security,
order and discipline would be seriously
affected adversely if [detaninee] were
allowed to exercise his constitutional
right.
Polk Cnty. Sheriff, 594 N.W.2d 431-32 (Snell Dissenting).
The Defendants set out other situations similar, but not
exactly the same, as Mr. Scott’s.
See also Davis v. Agosto, 89 Fed. Appx. 523
(6th Cir. 2004) (permitting prison to
suture an open wound even if the inmate
disagreed, noting the prison could easily
face a deliberate indifference claim for
failing to treat the open wound); Parks v.
McCoy, 35 Fed. Appx. 239, 241 (7th Cir.
2002) (inmate forced to take tuberculosis
medication against his will based on a
misdiagnosis did not state a constitutional
claim for relief); People ex rel. Ill.
Dep’t of Corr. v. Millard, 335 Ill. App. 3d
1066 (Ill. App. Ct. 2003) (holding Illinois
DOC
does
not
violate
an
inmate’s
constitutional rights in seeking a court
order to force feed an inmate on a hunger
strike); McCormick v. Stalder, 105 F.3d
1059, 1062 (5th Cir. 1997) (due process
does not prevent prison officials from
forcing a prisoner to undergo treatment for
tuberculosis); Martinez v. Turner, 977 F.2d
421, 423 (8th Cir. 1992) (rejecting
constitutional challenge to decision by
prison officials to force-feed a detainee
to preserve his health after a hunger
strike); State ex rel. Schuetzle v. Vogel,
537 N.W.2d 358, 364 (N.D. 1995) (future
medical cost of allowing diabetic prisoner
to refuse treatment justified forced
injections of insulin); Commissioner of
Corr. v. Myers, 399 N.E.2d 452, 454 (Mass.
19

1979) (permitting dialysis over inmate’s
objection); Sconiers v. Jarvis, 458 F.
Supp. 37, 40 (D. Kan. 1978) (“[D]efendants
had an affirmative constitutional duty to
provide
necessary
medical
treatment
regardless of consent because intentional
denial of medical treatment ... constitutes
cruel and unusual punishment.”).
Docket No. 21, p. 4-5.
Based on the foregoing case law, a few things seem clear.
The Defendants’ request for an injunction to generally treat
Mr. Scott against his will has little chance to succeed on the
merits.

Mr. Scott has a constitutional right to refuse

treatment.

Although Courts in certain circumstances have

allowed forced treatment (or found no damage after the fact
from forced treatment) no authority binding on this Court has
allowed an across the board injunction forcing the treatment
of a patient in Mr. Scotts’ situation.

And it is unlikely

that a Court would allow such an injunction in the future.

As

the dissent in the Polk County case implies, allowing such an
injunction would all but negate Mr. Scotts’ constitutional
right.

Accordingly, the Defendants’ request for a temporary

injunction to treat Mr. Scott against his will must be denied.
However, the Court will issue an injunction allowing
forced treatment in one type of circumstance.

There has been

evidence that Mr. Scott has battled MRSA, a type of antibiotic
20

resistant infection, in the past.

According to the Centers

for Disease Control, MRSA is extremely dangerous and easily
communicable in places such as prisons or mental hospitals.
See

Methicillin-resistant

Staphylococcus

Aureus

(MRSA)

Infections, http://www.cdc.gov/mrsa/index.html , last accessed
on

December

9,

2013.

The

Court

will

allow

the

forced

treatment of MRSA infections (or the forced treatment of any
other highly communicable disease such as whooping cough).
Both the public interest and the risk of irreparable harm
weigh in favor of stopping the spread of highly communicable,
dangerous, diseases.
However, the Court will also deny Mr. Scott’s request for
an injunction giving him complete discretion to choose his
medical treatment.

Although it is clear that Mr. Scott has a

constitutional right to refuse treatment, the cases cited
above establish that in some situations courts have allowed
forced treatment of patients and inmates.

Accordingly, the

Court cannot say with any great certainty that Mr. Scott would
succeed on the merits, which is the most important Dataphase
factor.
Additionally, the other Dataphase factors do not clearly
weigh

in

favor

of

granting

21

Mr.

Scott

an

injunction.

Currently, the evidence establishes that Mr. Scott has the
ability to make basic health care decisions. He is allowed to
refuse medication so long as he signs a release form stating
that he is refusing medication.

The Court need not grant a

temporary injunction to maintain the status quo.

Moreover,

the chance of irreparable harm in granting the motion is
simply too great.

“To succeed in demonstrating a threat of

irreparable harm, ‘a party must show that the harm is certain
and great and of such imminence that there is a clear and
present need for equitable relief.’”
at 706.

Roudachevski, 648 F.3d

If Mr. Scott is allowed to refuse all medication and

treatment, in every situation, he could die. There is no harm
more

irreparable

interest

almost

than
always

death.
favors

Additionally,
the

the

preservation

of

public
life.

Balancing the two sides, not granting the motion has the
lowest risk of harm.

Accordingly, a temporary injunction is

not appropriate in this situation and Mr. Scott’s request is
denied.
By denying both motions, the Court assumes that the
status quo will be maintained, meaning, that Mr. Scott will
continue to be able to refuse general treatment, such as
medication, so long as he signs the appropriate waivers.

22

Additionally, the Defendants will make reasonable efforts to
accommodate Mr. Scott’s medical needs.

Finally, as has

happened in the past, the Court expects that either party will
petition the Court if a life threatening situation develops
and either party feels the Court’s intervention is necessary.
B.

Diet

The next issue relates to Mr. Scott’s diet.

CCUSO admits

that Mr. Scott gets meals specially designed for his medical
needs.

Mr. Scott argues he should be allowed to eat meals

that are not medically restricted.
on this issue.

Both sides make a request

Mr. Scott requests an injunction allowing him

to eat regular meals (and other, for lack of better term,
‘junk’ food when he has access to it). The Defendants request
an injunction allowing them to continue to give Mr. Scott
medically

restricted

meals.

In

the

substance

of

their

argument, the Defendants argue that this issue is precluded by
the doctrine of res judicata, meaning, that this issue has
already been decided.
The parties agree on several facts related to Mr. Scott’s
diet:

1) Mr. Scott has been able to maintain a more healthy

weight on the special diet.

2) Mr. Scott still has access to

‘junk’ food on special occasions, such as the Super Bowl.

23

3)

Mr. Scott trades other patients for food.

4) The meals

provided to Mr. Scott by CCUSO are nutritionally adequate. 5)
Mr. Scott is allowed to buy fruits and vegetables to the same
extent other patients in his phase are.

In fact, there is

very little regarding Mr. Scott’s diet that the parties
disagree about factually.

The only dispute is whether Mr.

Scott should continue to get medically restricted meals.
As set out in the Defendants’ brief, Iowa law governs res
judicata analysis.

C.H. Robinson Worldwide, Inc. v. Lobrano,

695 F.3d 758, 764 (8th Cir. 2012) (law of forum that rendered
first judgment controls res judicata analysis).

Res judicata

encompasses both claim and issue preclusion. Pavone v. Kirke,
807 N.W.2d 828, 835 (Iowa 2011).

Claim preclusion bars

further litigation after a valid and final judgment to prevent
claims from being tried “piecemeal.”

Id. at 835-36.

The

elements of claim preclusion are easily satisfied in this
case:

(1) the parties in the first and second action are the

same parties or in privity; (2) there was a final judgment on
the merits in the first action, and (3) the second suit could
have been fully and fairly adjudicated in the prior case. Id.
at 836.

24

Issues

related

to

Mr.

Scott’s

diet

were

previously

discussed in the case of 11-CV-4055-DEO, in 2012. The parties
agree the parties are the same and that the issues are the
same.

(See Docket No. 24, p. 3, stating “[t]he Plaintiff

admits that he previously sued for a preliminary injunction on
the diet issue last year which were denied by Magistrate Judge
Zoss and accepted by the District Court.”).11

In that case,

Mr. Scott argued:
The plaintiff ... seeks a preliminary
injunction “that restricts the Defendants
from placing any limitations on food beyond
the standard CCUSO rules.” Doc. No. 20 at
2. In particular, the plaintiff seeks to
enjoin the defendants from “restricting
[him] from buying food from outside
vendors, and the CCUSO Commissary.” Doc.
No. 20-1 at 1... The plaintiff believed
that the Constitution does not permit the
defendants to restrict what food he may
purchase or obtain from outside sources.
He claimed that his weight loss is taking
a toll on his body, although he conceded
that his prescribed diet is not medically
harming him, “but lots of times I don’t get
a lot on my tray.”
According to the
plaintiff,
his
diet
is
causing
him
irreparable harm because it is hindering
his progress through the treatment program
at the CCUSO.

11

To be clear, this Court adopted Judge Zoss’ Report and
Recommendation and thereby did not grant Plaintiff’s request
for a temporary injunction.
25

11-CV-4055, Docket No. 33, p. 4-5.

After considering the

relevant Dataphase factors discussed above, Magistrate Zoss
denied Mr. Scott’s request for injunctive relief.
Court

adopted

the

Magistrate’s

Report

and

Id.

This

Recommendation

shortly there after. 11-CV-4055, Docket No. 36.

There is no

allegation that Mr. Scott’s claim for a temporary injunction
regarding his diet could not have been fully and fairly
litigated in the earlier case. Accordingly, all three factors
for claim preclusion have been met:

the prior case had the

same parties, had the same issue, and Mr. Scott had an
opportunity to litigate his claim.
Mr. Scott now argues that, “[a]lthough that particular
issue was resolved at that time, the circumstances here have
changed over the course of the last year.

As ARNP Benson

testified, “Scott has dropped [a] significant amount of weight
and blood tests indicate that he is no longer diabetic.”
Docket No. 24, p. 3.

However, the mere fact that Mr. Scott is

now healthier because he has followed the medically restricted
diet does not alter the fact that this issue was fully and
fairly litigated in the previous case.

Accordingly, the

principle of claim preclusion applies and Mr. Scott’s request
for a temporary injunction related to his diet is barred.

26

Furthermore, even if the claim were not barred by issue
preclusion, it is clear that Mr. Scott does not have a right
to make decisions related to his diet at CCUSO.
(A)

above,

at

p.

27,

the

Court

discussed

In section
Mr.

constitutional right to make his own medical choices.

Scott’s
While

the Court cannot definitively say how that right interacts
with CCUSO’s interest in providing Mr. Scott medical care,
there is no doubt that absent extenuating circumstances, Mr.
Scott does have a right to make medical choices.

No similar

right exists which would compel CCUSO to feed Mr. Scott his
menu of choice.
As set out in the Defendants’ brief:
even if Mr. Scott were on the phase and
level that permitted ordering food from the
community, which he is not, there is no
Constitutional right to eat HyVee Chicken.
Ayers v. Uphoff, 1 Fed. Appx. 851, 855
(10th Cir. 2001) (unpublished) (holding
“plaintiff has no constitutional right to
preselect foods or demand a certain variety
of
foods.
In
short,
plaintiff’s
dissatisfaction with the menu at prison is
not sufficient to support an Eighth
Amendment claim.”); Ellis v. Miller, 985
F.2d 559, 1993 WL 22448, at *1 (6th Cir.
1993) (unpublished) (“plaintiff has no
constitutional right to food from a
particular source.”).
“The [E]ighth
[A]mendment assures prisoners a medically
and nutritionally sound diet; it does not
guarantee a pleasant culinary experience.”
Jackson v. Hanlon, 923 F.2d 856, 1991 WL
27

3056, at *1 (7th Cir. 1991) (unpublished).
Persons
in
confinement
have
no
constitutional right to be served a
particular type of meal. Burgin v. Nix,
899 F.2d 733, 734-35 (8th Cir. 1990).
Persons
in
confinement
have
no
constitutional right to purchase snacks or
gifts from the Commissary or similar
setting.
Tokar v. Armontrout, 97 F.3d
1078, 1083 (8th Cir. 1996) (“[W]e know of
no constitutional right of access to a
prison gift or snack shop.”); see Gibson v.
McEvers, 631 F.2d 95, 98 (7th Cir. 1980) (a
denial
of
a
prisoner’s
commissary
privileges does not implicate due process);
Partee v. Cain, No. 92 C 4838, 1999 WL
965416, at *9 (N.D. Ill. Sept. 30, 1999)
(citing Campbell v. Miller, 787 F.2d 217,
222
(7th
Cir.
1986)
(finding
no
Constitutional or statutory right to
commissary privileges)); Mitchell v. City
of New York, No. 10 Civ. 4121, 2011 WL
1899718, at *2 (S.D.N.Y. May 13, 2011)
(finding no constitutional right to access
the prison commissary); Davis v. Shaw, No.
08 Civ. 364, 2009 WL 1490609, at *1
(S.D.N.Y. May 20, 2009) (same). Mr. Scott
has no Constitutional right to purchase
food from local restaurants while confined
at CCUSO, nor does he have a constitutional
right to receive food from outside sources.
Quite the opposite is true. If CCUSO were
to disregard the medical recommendations
for a special diet for Mr. Scott, it would
risk exposure for liability. See Byrd v.
Wilson, 701 F.2d 592, 594-95 (6th Cir.
1983)
(prison
officials’
deliberate
indifference towards inmate’s special diet
can form basis for Eighth Amendment claim
if diet is medically necessary). Indeed,
the
Eighth
Circuit
has
upheld
an
institution’s right to force-feed an inmate
28

if it is determined that the inmate’s life
or permanent health is in danger. Martinez
v. Turner, 977 F.2d 421, 423 (8th Cir.
1992).
Docket No. 21, p. 7-8.
It is undisputed in the record that CCUSO has designed a
diet plan for Mr. Scott based on medical recommendations.

As

the foregoing analysis from the Defendants’ brief makes clear,
there is no right or requirement that would force CCUSO to
provide Mr. Scott the meals of his choice.

Providing Mr.

Scott with food is different from forcing medical care on Mr.
Scott.

CCUSO has a responsibility to provide Mr. Scott food

that is nutritionally sufficient.

CCUSO is doing that, even

if Mr. Scott would rather have better tasting, but less
healthy food.

Even if CCUSO had to absolutely and completely

abide by Mr. Scott’s choices regarding his medical treatment,
that would not confer upon CCUSO an affirmative obligation to
provide Mr. Scott food they know would be unhealthy for him.
Accordingly, applying the Dataphase factors set out above, it
is clear that Mr. Scott has virtually no chance of success on
the merits of this matter.

Moreover, there is no risk of

irreparable harm from continuing to allow CCUSO to provide Mr.
Scott

a

medically

restricted

interest in this issue.

diet.

There

is

no

public

On balance, CCUSO is correct that by
29

allowing Mr. Scott to eat whatever he likes, regardless of
medical advice, they could be opening themselves up for
liability

under

the

deliberate

indifference

standard.

Accordingly, the balance tips in favor of denying Mr. Scott’s
request for injunctive relief.
For all those reasons, Mr. Scott’s requested injunctive
relief regarding his diet is denied.

The Defendants may

continue to provide Mr. Scott a medically restricted diet so
long as it is nutritionally sufficient and comports with
medical advice.
C.

Reimbursement for Medical Devices

Next, the Defendants request an injunction allowing them
to require Mr. Scott to reimburse CCUSO for medical devices
CCUSO purchases on his behalf.

As set out in the Defendants’

brief:
CCUSO typically recovers 20% of the
patient’s pay each pay period under
repayment agreements. Mr. Scott currently
earns $16 per pay period, so he will be
paying $3.20 per pay period toward his new
prosthetics.
The current cost of the
prostheses is $16,942.00; there may be
other fitting expenses.
Although the
statute grants the program authority to
recoup costs of confinement, the program
has not billed patients who are released
with supervision or who are discharged. To
the contrary, the program incents positive
behavior and treatment performance with an
30

allowance that increases as a patient
advances through the program. The program
encourages patients to save this allowance
so that when the patient reaches release
with supervision or discharge, the patient
has
savings
for
things
like
rental
12
deposits.
Docket No. 21, p. 9.
important

that

The Defendants go onto state that “It is

Mr.

Scott

have

maintaining his prostheses.

some

vested

interest

in

Dr. Smith testified at the

hearing that Mr. Scott threw one of his prosthetics in the
garbage. He has also destroyed a small wheelchair access ramp
and admittedly kicked down a partition.

If Mr. Scott has no

interest in his prostheses, he could destroy them and demand
another pair.”

Docket No. 21, p. 9.

As the parties are well aware, Iowa Code Chapter 229A
establishes

the

statutory

violent predators.

grounds

for

confining

sexually

The Defendants argue that the code allows

them to charge patients for certain expenses CCUSO pays on the
patients’ behalf.

Specifically:

Reimbursement may be obtained by the
director from the patient and any person
legally liable or bound by contract for the
support of the patient for the cost of
confinement or of care and treatment
12

The Court understands this repayment plan will not
result in a full repayment, but rather is a means, pursuant to
CCUSO’s regulations, to encourage Mr. Scott to take
responsibility for the equipment.
31

provided.
To the extent allowed by the
United
States
social
security
administration,
any
benefit
payments
received by the person pursuant to the
federal Social Security Act shall be used
for the costs incurred.
I.C.A.

§

229A.12.

contemplated

Thus,

CCUSO’s

the

ability

Iowa

Legislature

to

recoup

that

CCUSO

some

clearly

costs

from

patients.
The

Plaintiff

concedes

authority to recoup certain costs.
stating,

“Scott

reimbursement.”).

acknowledges
However,

a

statutory

(See Docket No. 24, p. 4,

CCUSO’s
Mr.

has

Scott

authority
argues

to

seek

that

this

reimbursement plan creates an undue burden on Mr. Scott.
Again, to determine if an injunction is appropriate, the
Court considers four factors:

(a) threat of irreparable harm

to the movant; (b) the state of the balance between this harm
and the injury that granting the injunction will inflict on
other parties; (c) the probability that the movant will
succeed on the merits; and (d) the public interest. As stated
above, factor (c) is the most important.
In this situation, the Defendant is likely to succeed on
the merits.

I.C.A. § 229A.12 clearly authorizes CCUSO to

obtain reimbursement from patients for the cost of confinement

32

or care.13

While Mr. Scott is correct that at some point such

a scheme could become an undue burden, and implicate Mr.
Scott’s due process rights, there is no evidence the 20%
percent repayment plan that CCUSO uses represents an undue
burden.
Turning

to

the

other

factors,

the

public

interest

supports this injunction. The State of Iowa subsidizes CCUSO,
and recouping some cost is in the public interest, as is
giving

Mr.

Scott

a

vested

prostheses and wheelchair.

interest

in

maintaining

his

It is indisputable, based on the

evidence presented during the hearing, that Mr. Scott has a
history of using his wheelchair and prostheses in a reckless
and destructive manner.

In the past, Mr. Scott has become

angry and used his equipment to threaten other patients and
damage CCUSO property.

Consequently, providing Mr. Scott a

financial interest in maintaining his medical devices will
(hopefully) encourage Mr. Scott to use those devices in a

13

However, this statute does NOT authorize CCUSO to
require contemporaneous payments for medical treatment. CCUSO
has a statutory and constitutional duty to provide patients
medical care, regardless of their ability to pay. It is only
after care has been provided, or in this case, after
prostheses have been provided, that CCUSO may attempt to
obtain reimbursement. To be clear, CCUSO CANNOT use lack of
payment as a reason to deny Mr. Scott a medically necessary
device.
33

responsible manner.

If Mr. Scott uses his medical equipment

responsibly, he will likely reduce the public cost incurred
when

CCUSO

has

to

replace/repair

his

wheelchair

and

prostheses.
Similarly, the threat of harm to Mr. Scott does not outweigh the benefit of having him pay some of the cost of his
medical equipment.

While Mr. Scott will be out some money,

and thus harmed, Mr. Scott will also be given incentive to
maintain both his health and the medical equipment he has. To
sum up, the public, Mr. Scott, and the Defendants all benefit
from

encouraging

Mr.

assistance devices.

Scott

to

take

care

of

his

medical

Accordingly, all four Dataphase factors

support the Defendants’ requested injunction, allowing them to
recoup some medical equipment costs from Mr. Scott.

The

partial payment assessed by Defendants is authorized by Iowa
Code and is not onerous.

Plaintiff’s request for injunction

prohibiting reimbursement for his prostheses is denied, and
the Defendants’ injunction is granted.
D.

Motion to Dismiss CCUSO as a Defendant

Next, the Defendants argue, and the Plaintiff agrees,
that the Civil Commitment Unit for Sexual Offenders is not a
person within the meaning of 42 U.S.C. § 1983.

34

They are

correct. Thus, CCUSO should be dismissed as a Defendant. See
Hafer v. Melo, 502 U.S. 21, 22-23 (1991).
E.

Authority

to

Remove

Prostheses

and

Confiscate

Wheelchair
The next issue is whether the Defendants may remove Mr.
Scott’s prosthetic legs and/or confiscate his wheelchair.

It

seems clear from the evidence that two distinct situations
have arisen where CCUSO has confiscated Mr. Scott’s prosthesis
or wheelchair.

First, CCUSO has confiscated Mr. Scott’s

prostheses and wheelchair in situations where the medical
staff, including Defendant Benson, have determined that to
confiscate the prostheses was medically necessary.14

To the

extent this issue is related to medical issues, the same
rational applied in subsection (A), p. 11, above applies. For
medical reasons, CCUSO may only restrict Mr. Scott’s use of
his prostheses or wheelchair to prevent the spread of a
communicable infection, as described in section (A), p. 11
above.

14

Specifically, Mr. Scott is prone to developing sores
in the area where his prostheses attaches to his biological
hip. Removing the prosthesis is medically necessary to allow
the sores to heal.
Presumably the same is true regarding
contact sores developed after using the wheelchair.
35

Second, there have been incidents in the past where Mr.
Scott has used both his prostheses and wheelchair as weapons.
Mr. Scott has used the wheelchair and prostheses to either
intimidate other patients and the CCUSO staff, or to damage
CCUSO

facilities.

The

Defendants

request

an

injunction

allowing them to confiscate Mr. Scott’s prostheses in the
event he uses them to harm or intimidate.

Such confiscation

would be limited to a reasonable time period.
Applying the four factor test described above, it seems
clear that CCUSO will likely win on the merits.

As numerous

Courts have stated, “a prison official violates the Eighth
Amendment if he is deliberately indifferent to the need to
protect an inmate from a substantial risk of serious harm from
other inmates.” Newman v. Holmes, 122 F.3d 650, 652 (8th Cir.
1997).
Scott

Accordingly, CCUSO would be negligent to allow Mr.
access

to

items

he

uses

as

weapons

against

other

patients. Additionally, the Defendants have a duty to protect
CCUSO staff members from unreasonable harm, and have a duty to
protect CCUSO facilities.

Turning to the remaining three

factors, there is no public interest in this situation. While
there

is

a

risk

of

inconvenience

to

Mr.

Scott

if

his

prostheses or wheelchair are confiscated, there is no risk of

36

permanent

harm.

When

the

risk

is

weighed

against

the

potential damage Mr. Scott could cause if CCUSO is not allowed
to confiscate items he could use as weapons, it is clear that
the injunction should be granted.

In the event Mr. Scott

uses, or attempts to use, his wheelchair or prostheses as
weapons against CCUSO staff, other patients, or the facility
itself, the Defendants may confiscate those items for a
limited time period, up to ten days.
F.

Authority to Remove the Court’s Number from Mr.

Scott’s Approved Number List
On numerous occasions, most recently on Tuesday, October
15, 2013, and Wednesday, October 16, 2013, Mr. Scott called
the Court’s chambers to discuss his medical issues.

During

these calls, Mr. Scott has attempted to argue the merits of
his cases with the Court’s staff.

The Defendants request an

injunction allowing them to remove the Court’s number from the
list of numbers Mr. Scott is allowed to call.
As discussed extensively above, the Court must consider
the four Dataphase factors in deciding whether to grant an
injunction.

Again, those four factors are:

(a) threat of

irreparable harm to the movant; (b) the state of the balance
between this harm and the injury that granting the injunction

37

will inflict on other parties; (c) the probability that the
movant

will

interest.

succeed

on

the

merits;

and

(d)

the

public

As stated above, factor (c) is the most important.

Parties are clearly prohibited from contacting the Court
ex parte to discuss the merits of a pending case.

Moreover,

Canon 3 of the Code of Conduct for United States Judges
states:
A judge should accord to every person who
has a legal interest in a proceeding, and
that person’s lawyer, the full right to be
heard according to law. Except as set out
below, a judge should not initiate, permit,
or consider ex parte communications or
consider other communications concerning a
pending or impending matter that are made
outside the presence of the parties or
their lawyers.
If a judge receives an
unauthorized ex parte communication bearing
on the substance of a matter, the judge
should promptly notify the parties of the
subject matter of the communication and
allow the parties an opportunity to
respond...
Code of Conduct for United States Judges, Canon 3, Subsection
4.

To combat these clear issues, the Court has promptly

notified the parties of Mr. Scott’s ex parte communications
after they have occurred.
Additionally, neither party has provided the Court any
rule, regulation, or law that states Mr. Scott, being a CCUSO
patient, has a right to call to the Court’s chambers.
38

Mr.

Scott

is

represented

by

Mr.

Parry,

who

has

diligently

prosecuted Mr. Scott’s cases currently before this Court. Mr.
Parry is capable of initiating communication with this Court
and the Defendants if there is matter that needs the Court’s
attention.

If Mr. Scott feels the need to contact the Court

and chooses not to utilize Mr. Parry, Mr. Scott is also free
to

commit

his

communication

to

writing

(as

he

has

numerous times in the past) and mail or fax the Court.

done

If the

Court receives a written communication from Mr. Scott, it is
easy to duplicate that communication and provide it to all
parties, avoiding the issues that result from unauthorized ex
parte communications.

However, the Court is persuaded that

because there is a great risk of harm if Mr. Scott is unable
to call the Court in an emergency situation, the Court will
not grant the Defendants’ request for a permanent injunction.15
Thus, the Defendants’ request for an injunction allowing them
to remove the Court’s number from Mr. Scott’s list is denied.
G.

Mr. Scott’s Emergency Motion of October 15, 2013

As noted above, over the weekend of October 12, 2013, Mr.
Scott left the Court two (extremely emotional) voice messages.

15

However, the Court requests that Mr. Scott treat the
Court staff with respect during these communications.
39

Mr. Scott stated that he was in pain from a liaison on his
hip. Further, he stated that Nurse Benson would not treat him
and he believed he needed to go the University of Iowa
Hospital.

Mr. Scott stated that he had been unable to reach

Mr. Parry and would like an "emergency court order."

The

Court sent an email to the parties regarding Mr. Scott’s
messages on Monday, October 14, 2013.
1.

See Docket No. 31, Ex.

On October 15, 2013, Mr. Parry filed a Motion for Hearing,

stating that:
The plaintiff has continued to have medical
problems with an open ulcer on his hip
since the court hearing held at CCUSO...
He has been informed by the University of
Iowa Hospitals and Clinics that he needs
surgery to address this ulcer.
However,
surgery cannot be performed until after his
potassium levels have decreased.
The
plaintiff has been prescribed an oral
medication to treat the high potassium but
the oral medication causes him to urinate
multiple times an hour. The plaintiff has
previously received intravenous medication
to treat the potassium level which does not
cause the frequent urination, and requests
that he be prescribed the intravenous
medication so that he can receive surgery.
Docket No. 32, p1-2.

On that same day, the Defendants filed

a supplemental response explaining that Mr. Scott was refusing
to follow the University of Iowa’s proscribed method for

40

reducing his potassium levels and that Mr. Scott was generally
being uncooperative with medical staff.
On

October

16,

2013,

the

Court

Docket No. 31.
conducted

a

pursuant to the Plaintiff’s request for a hearing.

hearing
At that

hearing, both Mr. Parry and Ms. Kraemer questioned Mr. Scott
regarding his medical status.

In extremely emotional terms,

Mr. Scott stated that he was in pain from the sore on his leg
and that the potassium medication had caused him to have
issues with urination.

Mr. Scott stated that in the past, he

has been admitted to the hospital to have his potassium levels
lowered.

He noted that in the hospital, he is able to have

intravenous medication and can have a catheter inserted to
alleviate issues with urination.

Mr. Scott also complained

about the manner in which Defendant Benson has dressed his
wound.
On cross-examination, Mr. Scott admitted that he had
discontinued use of the potassium medication and had refused
to let Defendant Benson care for his wound for several days.
Mr. Scott stated that he was offended that Defendant Benson
referred to him as a ‘liar’ and that was the reason he refused
to let her treat his hip.

Mr. Scott also acknowledged,

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tepidly, that refusing medication and treatment was countertherapeutic.
After Mr. Scott’s testimony, the parties, along with this
Court, agreed that Mr. Scott should be evaluated at the local
Cherokee Hospital by a neutral doctor. The Court also granted
the Defendants’ oral motion for an order allowing the exchange
of Mr. Scott’s medical records between care providers.
Docket No. 34.

See

The Court understands that after going to the

Cherokee Hospital, Mr. Scott was transported to the University
of Iowa Hospital.

Because that was the outcome requested by

Mr. Scott, no further action by the Court is necessary.
H.

Possible Case Resolutions

The final issue the Court will consider is the parties’
request that the Court provide guidance on how this case
should proceed going forward.

As stated in the Defendants’

brief, Docket No. 20, p. 12-13, “Defendants ask this Court...
to set forth any procedural guidance the Court would like the
parties to use in resolving future disputes.”

Both parties

made similar requests of the Court during the hearing held at
CCUSO on September 5, 2013.
There is no doubt this is a complicated set of issues.
As discussed extensively above, both sides have legitimate

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points regarding Mr. Scott’s medical care.

Mr. Scott has a

constitutional right to refuse treatment, while CCUSO has a
legitimate interest in making sure that Mr. Scott receives
medical care.

Just how those conflicting rights would play

out in trial (or before a higher Court) is impossible to say.
One thing seems clear, however, which is that it is unlikely
that

all

the

parties

would

by

happy

with

the

ultimate

disposition of this case.
That said, the parties have entered into, what amounts
to, a defacto arrangement on how to treat Mr. Scott as this
case has progressed.

Currently, Mr. Scott is free to make

routine medical choices.

However, if either party feels that

a serious medical situation is occurring, they have petitioned
the Court for the Court’s guidance.

Under this arrangement,

the Court has twice directed CCUSO to treat Mr. Scott, and
most recently, encouraged CCUSO to take Mr. Scott for a
neutral evaluation at the Cherokee Hospital.

This situation

is not ideal. However, given this cases’ history, it seems to
be the only workable solution.

It is not workable to give Mr.

Scott a blanket injunction saying he has absolute authority to
make all medical decisions. He is a patient legally committed
to a state facility.

However, it seems equally improper (and

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likely unconstitutional) to issue an injunction saying that
CCUSO has complete autonomy to make medical decisions for Mr.
Scott.
This Order has set out some limitations on the parties
and granted some of the injunctions on a temporary basis.
Other injunctions have been denied because they are unlikely
to ever succeed on the merits.

The Court cannot order the

parties to settle a case; however, if the parties were to
settle the case, there are some provisions that might be
appropriate in such a settlement agreement.
If the parties were to agree, the following points seem
reasonable:
1.

Accept the above described injunctions as permanent.

2.

Agree to drop further pursuit of these issues.

3.

Agree that going forward, Mr. Scott may make routine

medical decisions within the limitations set out above.
4.

Agree that the Defendants will make all reasonable

efforts to accommodate Mr. Scott’s medical situation.
5.

Agree that if a medical emergency arises related to

Mr. Scott, and he refuses treatment, the Defendants can
petition this Court, under this case caption, per the terms
outlined in a potential settlement agreement, for an order

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allowing them to treat Mr. Scott.

The parties can agree that

the Court’s Order regarding medical treatment will be final.16
In no circumstance will the Court grant such an order without
giving both parties an opportunity to be heard.17
6.

Agree that if a medical emergency arises, and Mr.

Scott feels he is NOT receiving the treatment he needs from
CCUSO, Mr. Scott and his attorney can petition the Court for
an

Order

treatment.
regarding

directing

CCUSO

to

provide

Mr.

Scott

proper

The parties can agree that the Court’s Order
medical

treatment

will

be

final.18

In

no

circumstance will the Court grant such an order without giving
both parties an opportunity to be heard.
16

Such an agreement would need language allowing either
this Court or the Federal Magistrate Judge in Sioux City
(currently Judge Strand) to make the decisions regarding
medical orders. This Court may not always be available, and
limiting this issue to one judge may result in dangerous time
delays.
17

At no point and in no situation will the Court enter
an order which disturbs Mr. Scott’s Living Will. See Docket
No. 20, Ex. F.
18

Under the terms of Mr. Parry’s appointment contract,
he may petition the Court for additional fees in unusual or
complicated cases. If an agreement is entered and this case
is closed, Mr. Parry would be entitled to his ordinary
contract fee. Under this hypothetical agreement, Mr. Parry
would be allowed to petition the Court for additional fees,
under the “unusual or complicated” subsection of his contract,
for any work he does on Mr. Scott’s behalf after a settlement
agreement is reached.
45

7.

Agree that during any hearing held pursuant to points

5 and 6, the Court can receive all evidence and testimony the
Court is persuaded is appropriate.
8.

Agree to any other issues the parties consider

necessary.
As the Court stated above, the Court is not ordering the
parties

to

settle

the

case.

Those

points

merely

seem

reasonable based on the statements counsel made during the
September 5, 2013, hearing. The Court’s authority to continue
to hear emergency medical motions is unclear, at best, in the
context of a normal 42 U.S.C. § 1983 action.

A settlement

agreement would provide the Court both clear authority and
rules to conduct these hearings going forward and would
provide both parties an avenue to petition the Court going
forward regardless of future developments.
VI.

CONCLUSION
For the reasons set out above, the Court denies Mr.

Scott’s injunction seeking to enjoin the Defendants from
providing him medical care against his will.

The Court also

denies the Defendants’ request for an injunction to transport,
treat, and medicate Mr. Scott against his will, except in
those limited situations related to communicable diseases,

46

such as MRSA infection, discussed in section V(A), p. 11
above.

(The Court anticipates that by denying both requests,

the status quo will be maintained.).
The Court grants the Defendants’ request that Mr. Scott’s
injunction claim related to his diet be denied on res judicata
grounds. Accordingly, the Court denies Mr. Scott’s injunction
seeking to control his own diet.

The Defendants may continue

to give Mr. Scott a medically restricted diet.

The Court

grants the Defendants an injunction allowing them to remove
Mr.

Scott’s

prostheses

and

electronic

wheelchair

for

security/safety reasons, but denies the Defendants’ request
for an injunction to remove the prostheses and wheelchair for
medical reasons.

See section (E), p. 35, discussing when

removal is appropriate.

The Court grants the Defendants’

injunction allowing them to continue to charge Mr. Scott a
limited fee to recoup the cost of his medical devices, and
denies Mr. Scott’s injunction request related to the same
issue. The Court denies the Defendants’ injunction request to
remove the Court’s number from the list of approved telephone
numbers.

The Court grants the Defendants’ Motion to Dismiss

CCUSO as a defendant in this case.

Finally, the Court

provides procedural guidance in section (H) above.

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IT IS SO ORDERED this 11th day of December, 2013.

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

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