Barker v. Palmer et al
Filing
22
ORDER granting 13 Motion to Dismiss. Plaintiff's 7 Complaint is dismissed. See text of Order for details. Signed by Senior Judge Donald E OBrien on 5/9/14. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
DAN BARKER,
Plaintiff,
No. 14-CV-4013-DEO
vs.
ORDER ON MOTION TO DISMISS
CHARLES PALMER, TRACY
THOMAS, BRYON KELLY AND BRAD
WITTROCK,
Defendants.
____________________
I.
INTRODUCTION
This
matter
is
currently
before
the
Court
on
the
Defendants’ Motion to Dismiss. Docket No. 13. The Defendants
argue that Dan Barker’s [hereinafter Mr. Barker] 42 U.S.C.
Section 1983 Complaint, Docket No. 1, Att. 1, and as filed at
Docket No. 7, should be dismissed.
The Plaintiff is an
involuntarily committed patient at the Civil Commitment Unit
for Sex Offenders (CCUSO) in Cherokee, Iowa.1
appeared for a hearing on April 16, 2014.
The parties
After listening to
the parties’ arguments, the Court took the matter under
advisement and now enters the following.
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 May 5, 2014.
II.
MOTION TO DISMISS STANDARD
The notice pleading standard of Federal Rule of Civil
Procedure 8(a)(2) requires a plaintiff to give “a short and
plain statement showing that the pleader is entitled to
relief.”
motion
to
In order to meet this standard and to survive a
dismiss,
“a
complaint
must
contain
sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S.
662, 663 (2009) (internal quotations and citation omitted).
This requirement of facial plausibility means that the factual
content of the plaintiff's allegations must “allow[ ] the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Cole v. Homier Distrib.
Co., 599 F.3d 856, 861 (8th Cir. 2010).
Furthermore, courts
must assess the plausibility of a given claim with reference
to the plaintiff's allegations as a whole, not in terms of the
plausibility of each individual allegation.
Zoltek Corp. v.
Structural Polymer Group, 592 F.3d 893, 896 n. 4 (8th Cir.
2010)
(internal
citation
omitted).
This
inquiry
is
“a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556
U.S. at 664.
2
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss
does
plaintiff's
‘entitlement
not
need
obligation
to
detailed
to
relief’
factual
provide
requires
the
more
allegations,
‘grounds’
a
his
labels
than
of
and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (internal alterations and citations
omitted).
Nevertheless, although the “plausibility standard
requires a plaintiff to show at the pleading stage that
success on the merits is more than a sheer possibility,” it is
not a “probability requirement.”
Braden v. Wal–Mart Stores,
Inc., 588 F.3d 585, 594 (8th Cir. 2009).
As such, “a
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of the facts alleged is improbable,
and that a recovery is very remote and unlikely.”
Id.
In assessing “plausibility,” as required by the Supreme
Court in Iqbal, the Eighth Circuit Court of Appeals has
explained that courts should consider only the materials that
are
necessarily
embraced
by
the
pleadings
and
exhibits
attached to the complaint. See Mattes v. ABC Plastics, Inc .,
323 F.3d 695, 697 n. 4 (8th Cir. 2003), stating that “in
considering a motion to dismiss, the district court may
3
sometimes consider materials outside the pleadings, such as
materials that are necessarily embraced by the pleadings and
exhibits attached to the complaint.
Porous Media Corp. v.
Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
The Court
may also consider “materials that are part of the public
record or do not contradict the complaint.” Miller v. Redwood
Toxicology Lab., Inc., 688 F.3d 928, 931 (8th Cir. 2012).
A
more complete list of the matters outside of the pleadings
that a court may consider, without converting a Rule 12(b)(6)
motion to dismiss into a Rule 56 motion for summary judgment,
pursuant to Rule 12(d), includes matters incorporated by
reference or integral to the claim, items subject to judicial
notice, matters of public record, orders, items appearing in
the record of the case, and exhibits attached to the complaint
whose authenticity is unquestioned.
Van Stelton v. Van
Stelton, 11-CV-4045-MWB, 2013 WL 3776813 (N.D. Iowa 2013)
(internal citations omitted).
III.
ANALYSIS
Mr. Barker is a long time CCUSO patient.
Around 2009, he
achieved transitional release status and was allowed to live
independently outside of CCUSO in Cherokee, Iowa.
In 2010,
because of various issues, Mr. Barker returned to live at the
4
CCUSO facility in Cherokee, Iowa. Because he lived on his own
during 2009, Mr. Barker had acquired various property that he
could not bring back to CCUSO.
(The property included lawn
care supplies, furniture, etc.)
Mr. Barker entered into an
agreement with CCUSO, which (allegedly) stated that he could
store his belongings in a CCUSO owned storage area on the
CCUSO premises.
Shortly before this lawsuit was filed, the Defendants
notified Mr. Barker that he needed to move his belongings.
The Defendants argue that the agreement to store Mr. Barker’s
property in CCUSO’s storage area was short term in nature, and
Mr.
Barker
agreement.
exceeded
the
time
limit
contemplated
by
the
In his § 1983 Complaint, Mr. Barker argues that
the Defendants are attempting to violate his rights by forcing
him to remove the property from the storage area.
In their Motion to Dismiss, Docket No. 13, the Defendants
argue that Mr. Barker has no constitutional right to store his
belongings
at
CCUSO,
nor
does
he
have
an
alleged
constitutional violation that would allow him to file a 42
U.S.C. § 1983 about the property storage issue.
The Court
held a hearing on this matter on April 16, 2014.
During the
hearing, the parties stated that Mr. Barker was again moving
to transitional release, this time living in an ‘apartment’
5
located on the CCUSO premises.
The Defendants’ attorney, Ms.
Kraemer, stated that the Defendants were working with Mr.
Barker’s state court public defender to resolve the issue
around his stored property.
During the hearing, both sides
indicated that it may be possible to resolve this issue.
Accordingly, the Court directed the parties to file status
reports within thirty days setting out what steps had been
taken to resolve the dispute.
On May 7, 2014, the Defendants filed a Status Report.
Docket No. 20.
In that report, the Defendants stated:
Mr. Barker went through his belongings with
CCUSO staff’s assistance. He was provided
with contact information for local rental
storage units, and was asked to have
arrangements made for his belongings within
a month’s time. Mr. Barker decided to sell
the belongings he had in storage. He asked
for CCUSO’s assistance in accessing the
unit to transfer the items to their new
owners. It was a private sale, from Mr.
Barker to the new owners, and CCUSO had no
hand in the bargain reached.
Docket No. 20, p. 1. On that same date, Plaintiffs’ attorney,
Ms. Wingert, filed a Status Report which stated:
[c]omes Now, the Plaintiff, and hereby
notifies the Court that the undersigned has
spoken to the Plaintiff regarding the
Status Report filed this afternoon by the
Defendants. Mr. Barker asked me to advise
the Court that he no longer contests the
Motion to Dismiss.
6
Docket No. 21, p. 1.
Based
on
the
forgoing,
it
appears
the
parties
have
settled their dispute and the Plaintiff no longer resists the
Defendants’ Motion to Dismiss.
Accordingly, the Motion to
Dismiss must be granted.
IV.
CONCLUSION
For the reasons set out above, the Defendants’ Motion to
Dismiss,
Docket
No.
13,
is
GRANTED
and
the
Plaintiff’s
Complaint, Docket No. 7, is DISMISSED.
IT IS SO ORDERED this 9th day of May, 2014.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
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