Clark et al v. CCUSO Nursing Staff et al

Filing 7

INITIAL REVIEW ORDER granting 4 MOTION for Leave to Proceed in forma pauperis filed by Harold Johnson and 5 MOTION for Leave to Proceed in forma pauperis filed by Andrew Clark. The Clerk of Court shall file and serve the Plaintiffs Complaint by certified mail according to the attached service forms. No filing fee will be assessed. Plaintiff People at CCUSO that has Asthma is dismissed from the case. Defendant CCUSO Nursing Staff is dismissed. Plaintiffs 2 MOTION to Appoint Counsel is g ranted. The Court hereby appoints attorney Robert Tiefenthaler under Library Fund Administrative Order No. 13-AO-0009. Appointed counsel will file an Amended Complaint by 12/15/2013. Signed by Senior Judge Donald E OBrien on 10/31/13. (copy w/nef mailed to Plaintiff; copy to CR Financial; copy w/Complaint sent by certified mail to Defendants and Gretchen Witte Kraemer) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
ANDREW CLARK, HAROLD
JOHNSON, et al.,
Plaintiffs,

No. 13-CV-4076-DEO

vs.

INITIAL REVIEW ORDER

CCUSO NURSING STAFF, MARY
BENSON, JASON SMITH, AND
BRAD WITTROCK
Defendants.
____________________
I.

INTRODUCTION AND BACKGROUND
This matter is currently before the Court on Andrew Clark

and

Harold

Johnson’s

[hereinafter

collectively

as

the

Plaintiffs] Motion for Leave to Proceed in Forma Pauperis,
Motion for Appointment of Counsel, and 42 U.S.C. Section 1983
Complaint.

The Plaintiffs are an involuntarily committed

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

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 October 23, 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.”2
Moreover, the Iowa Code specifies that the types of persons
confined

at

CCUSO

are

not

prisoners.

They

are

civilly

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

Accordingly,

individuals held due to civil commitment under I.C.A. § 229A
Iowa Department of Human Services Offer #401-HHS-014:
CCUSO,
http://www.dhs.state.ia.us/docs/11w-401-HHS-014CCUSO.pdf, last visited October 23, 2013.
2

2

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

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).3 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].4
See
... Page v. Torrey, 201 F.3d 1136, 1139-40
(9th Cir. 2000) (concluding that a person
detained under state's civil sexually
3
4

SVPA stands for Sexually Violent Predator Act.
PLRA stands for Prison Litigation Reform Act.
3

violent predator act is not a prisoner
within meaning of PLRA). Accordingly, the
PLRA provides no basis for the dismissal of
[plaintiff’s] complaints.
Id. at 727-28.

(Some internal citations omitted.)

In order to qualify for in forma pauperis status, a
plaintiff must provide this Court an affidavit5 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

1915(a)(1).

or

give

security

therefor.

28

U.S.C.

§

The Plaintiffs’ application substantially meets

the above requirements.

The Plaintiffs’ Motion to Proceed in

Forma Pauperis is granted.

The Clerk of Court shall file and

serve the Plaintiffs’ Complaint by certified mail according to
the attached service forms.

No filing fee will be assessed.

However, once any portion of a filing fee is waived, a
court must dismiss the case if a Plaintiff’s allegations of
poverty prove untrue or the action in question turns out to be
5

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

frivolous, malicious, fails to state a claim on which relief
may be granted, or seeks monetary relief against a defendant
who is immune from such relief.
III.

28 U.S.C. § 1915(e)(2).

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

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

to

relief.”

Pro

se

complaints,

no

matter

how

“inartfully pleaded are held to less stringent standards than
formal pleadings as drafted by a lawyer.” Hughes v. Rowe, 449
U.S. 5, 9 (1980) (internal citations omitted).
Although it is a long-standing maxim that a complaint’s
factual allegations are to be accepted as true at the early
stages of a proceeding, this does not require that a court
must entertain any complaint no matter how implausible.

The

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

Bell Atlantic 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
5

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 . . . .
IV.

ISSUE
The Plaintiffs argue that they have asthma, but CCUSO

denies them access to inhalers when they are outside.

6

Docket

No. 1, p.2.

The Plaintiffs allege that this presents a

serious medical risk.
V.

Id.

ANALYSIS
The Plaintiffs allege a violation of their civil rights

under 42 U.S.C. § 1983.

The Plaintiffs argue that the

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

As stated above, they specifically

allege that they are asthmatics and that the Defendants have
denied them access to inhalers while they are outside in the
yard.
At the outset, the Court notes that, "[p]ersons who have
been involuntarily committed are entitled to more considerate
treatment and conditions of confinement than criminals whose
conditions of confinement are designed to punish." Youngberg,
457 U.S. at 321-22.

There has been some debate regarding the

appropriate standard in this type of case.

In the context of

inmate medical-care claims, Courts have stated that:
[t]he
Eighth
Amendment's
prohibition
against cruel and unusual punishment, which
embodies "broad and idealistic concepts of
dignity, civilized standards, humanity, and
decency," prohibits punishments which are
incompatible with "the evolving standards
7

of decency that mark the progress of a
maturing society." Estelle v. Gamble, 429
U.S. 97, 102 (1976). It thus requires that
the government provide "medical care for
those
whom
it
is
punishing
by
incarceration." Id. at 103. The Eighth
Amendment safeguards the prisoner against
a lack of medical care that "may result in
pain and suffering which no one suggests
would serve any penological purpose." Id.
Accordingly, "deliberate indifference to
serious medical needs" of a prisoner
constitutes the unnecessary and wanton
infliction of pain forbidden by the
Constitution. Id. at 104.
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th
Cir. 2009) (parallel citations omitted).

Recently, Courts

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

See Senty-Haugen v. Goodno,

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

the

14th

Amendment.

However,

this

Court

is

not

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

The Court

believes that in some, if not most, circumstances Youngberg v.

8

Romeo, 457 U.S. 307, 321-22 (1982) provides the applicable
standard regarding the treatment of civilly detained patients.
The Youngberg Court recognized that, though the Eighth
Amendment is inapplicable, involuntarily committed persons
have

substantive

Amendment.

rights

arising

457 U.S. at 315.

under

the

Fourteenth

Though "a State is under no

constitutional duty to provide substantive services for those
within its border . . . [w]hen a person is institutionalized,"
the State "has a duty to provide certain services and care .
. . ."

Id. at 317.

interests

to

Among the most basic substantive liberty

which

involuntarily

committed

persons

are

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

Id. at 315.

Thus, under Youngberg, the

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

test,

far

more

deferential

regarding detainees' medical care.

to

the

Government

As will be discussed

below, the Court finds that the Plaintiffs' claim should be
allowed to proceed past the initial review even under the
stricter, deliberate indifference standard.
9

Accordingly, the

Court will not consider, initially, the Plaintiffs' claim
under

the

standard.

Youngberg

This

decision

does

not

forestall the Court’s ability to apply the Youngberg standard
at later point in the proceeding.
Under
Plaintiffs

the

deliberate

must

show

the

indifference
Defendants

standard,

were

the

deliberately

indifferent to a serious illness or injury. Senty-Haugen, 462
F.3d at 889.

A successful deliberate indifference claim is

comprised of both an objective and a subjective element.
Farmer v. Brennan, 511 U.S. 825, 834 (1994).

First, the

Plaintiffs must demonstrate that, objectively, the deprivation
they suffered was "sufficiently serious; that is, it must
result in the denial of the minimal civilized measure of
life's necessities."
(7th Cir. 2002).

Walker v. Benjamin, 293 F.3d 1030, 1037

In the medical care context, this objective

element is satisfied when a plaintiff demonstrates that his
medical need itself was sufficiently serious.

Gutierrez v.

Peters, 111 F.3d 1364, 1369 (7th Cir. 1997).

Second, the

Plaintiffs must establish that the defendants acted with a
"‘sufficiently culpable state of mind'" to support liability

10

under § 1983.

Greeno v. Daley, 414 F.3d 645, 653 (7th Cir.

2005).
Although negligence or inadvertence will not support a
deliberate indifference claim, a plaintiff need not establish
that officials actually intended harm to befall him from the
Walker, 293 F.3d at 1037.

failure to provide adequate care.
"[I]t

is

enough

to

show

that

the

defendants

knew

of

a

substantial risk of harm to [the plaintiff] and disregarded
the risk."

Greeno, 414 F.3d at 653.

A successful plaintiff

need not show that he was literally ignored in his demands for
medical treatment, and a defendant's showing that a plaintiff
received

some

treatment

does

not

resolve

the

issue

conclusively if the treatment was "blatantly inappropriate."
Greeno, 414 F.3d at 653–54 (internal citations and quotation
omitted).

Finally,

the

Eighth

Amendment

"protects

[a

plaintiff] not only from deliberate indifference to his or her
current serious health problems, but also from deliberate
indifference to conditions posing an unreasonable risk of
serious damage to future health."
469, 479 (7th Cir. 2005).

Board v. Farnham, 394 F.3d

"Deliberate indifference must be

measured by the official's knowledge at the time in question,
11

not by ‘hindsight's perfect vision.'"

Schaub v. VonWald, 638

F.3d 905, 915 (8th Cir. 2011) (citing Lenz v. Wade, 490 F.3d
991, 993 n.1 (8th Cir. 2007)).
Accordingly, to succeed in their claim, the Plaintiffs
must show that they have a significantly serious medical
condition and that the Defendants acted with a sufficient
culpable state of mind. The Plaintiffs have alleged that they
are asthmatics and the Defendants refuse to provide them with
medically necessary inhalers when they are doing recreation
outside.
As was discussed above, at this early stage of the case,
the Court must take the Plaintiffs’ allegations as true and
can only dismiss the case if there is no way, given those
facts, that the Plaintiffs can prevail.

In this case, it is

clear that the Plaintiffs’ asthma could be a serious medical
condition.

It

is

also

true,

given

the

Plaintiffs’

allegations, that CCUSO could be violating the Plaintiffs’
rights by refusing to provide medically necessary inhalers.
Because the Plaintiffs' claim must be allowed to proceed
under the stricter deliberate indifference standard, it is

12

equally clear that the Plaintiffs' claim should be allowed to
proceed if the adequate care standard applies.
VI.

PEOPLE AT CCUSO THAT HAS ASTHMA
The

Plaintiffs

also

brought

this

“People at CCUSO that Has Asthma.”

case

on

behalf

of

The Plaintiffs are not

attorneys and cannot represent other patients. Only Mr. Clark
and Mr. Johnson signed the Complaint and other Motions.
Accordingly, Plaintiff “People at CCUSO that has Asthma” is
dismissed from the case.
VII.

DEFENDANT CCUSO NURSING STAFF
The Plaintiffs attempted to file this case against “CCUSO

Nursing Staff.”

As stated above, 42 U.S.C. § 1983 provides

that “every person” acting under the color of state law shall
be liable.

Accordingly, defendants in 42 U.S.C. § 1983 must

be individual, identifiable people. The broad category “CCUSO
Nursing Staff” does not meet that standard.

Accordingly

Defendant “CCUSO Nursing Staff” is dismissed.
VIII.
28

APPOINTMENT OF COUNSEL
U.S.C.

§1915(e)(1)

provides

that

appointment

of

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

Given the Plaintiffs’ current financial
13

situation and the nature of their claim, their Motion for
Appointment of Counsel is granted.

The Court hereby appoints

attorney Robert Tiefenthaler under Library Fund Administrative
Order No. 13-AO-0009.

After consulting with the Plaintiffs

regarding the nature of the alleged claim, appointed counsel
will file an Amended Complaint specifically setting out the
Plaintiffs’ legally viable claims within 45 days.
IX.

CONCLUSION
For the reason set out above, the Plaintiffs’ application

to proceed in forma pauperis is granted.

The Plaintiffs’ 42

U.S.C. § 1983 Complaint is allowed to proceed as described
above.

The Plaintiffs’ application for the appointment of

counsel is granted as set out above.

Both the Plaintiff

“People at CCUSO that has Asthma” and Defendant “CCUSO Nursing
Staff” are hereby dismissed from the case.
IT IS SO ORDERED this 31st day of October, 2013.

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

14

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

No. 13-CV-4076-DEO

v.
MARY BENSON, et al.,
Defendants.
____________________
A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A
copy of the complaint and a copy of the corresponding order from this Court are attached. This complaint
has been filed in the United States District Court for the Northern District of Iowa.
Pursuant to Rule 4 of the Federal Rules of Civil Procedure, you have an obligation to cooperate
in saving unnecessary costs of service of summons and complaint. Please sign the enclosed document
where appropriate acknowledging receipt of the complaint and notice of this pending lawsuit and waiving
formal service of summons. After signing the enclosed document, please return it to the United States
.
Clerk’s Office in the envelope provided within thirty (30) days of this date: October 31, 2013
I affirm that this notice and request for waiver of service of summons is being sent to you on behalf
October 31
, 2013.
of the plaintiff, this
/s/ djs, Deputy Clerk

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

15

ACKNOWLEDGMENT OF RECEIPT OF
NOTICE OF LAWSUIT,
and WAIVER OF SERVICE OF SUMMONS
10/31/13
(**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
ANDREW CLARK AND HAROLD
JOHNSON,
Plaintiff,

No. 13-CV-4076-DEO

v.
MARY BENSON, 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
10/31/13
, (the date Notice, Waiver and corresponding documents were sent or from
the date of the filing of the Amended Complaint, whichever is later) .
Date

Signature
Printed name
As
(Title)

of
(Entity)

Address Form
Case Number: 13-CV-4076-DEO
To:
RE:

10/31/13
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