Caldwell v. Palmer et al

Filing 4

INITIAL REVIEW ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Rocky Joe Caldwell. The Clerk of Court shall file and serve the Plaintiff's Complaint according to the attached service forms. No filing fee will be asses sed. Plaintiff's 2 MOTION to Appoint Counsel is granted. The Court hereby appoints an attorney Pamela Wingert. Appointed counsel will file an Amended Complaint within 45 days. Signed by Senior Judge Donald E OBrien on 10/9/14. (copy w/nef mailed to plaintiff, copy w/nef and complaint mailed to defendants and Atty Gretchen Kraemer) (copy to CR financial) (djs)

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

No. 14-CV-4050-DEO

vs.

INITIAL REVIEW ORDER

CHARLES PALMER, BRAD
WITTROCK AND MARY BENSON,
Defendants.
____________________
I.

INTRODUCTION AND BACKGROUND
This

matter

is

currently

before

the

Court

on

Rocky

Caldwell’s [hereinafter Mr. Caldwell’s] Motion for Leave to
Proceed

in

Forma

Pauperis,

Docket

No.

1;

Motion

for

Appointment of Counsel, Docket No. 2; and 42 U.S.C. Section
1983 Complaint, Docket No. 1, Att. 1.

The Plaintiff is an

involuntarily committed patient 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 8, 2014.

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 8, 2014.
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 Plaintiff’s application substantially meets

the above requirements.

The Plaintiff’s Motion to Proceed in

Forma Pauperis is granted.

The Clerk of Court shall file and

serve the Plaintiff’s Complaint 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 Plaintiff argues that he does not want to have

medical services provided by Nurse Mary Benson and that the
Defendants have failed to treat pain in his legs and feet.

6

V.

ANALYSIS
A.

Medical Care by Nurse Benson

In his Complaint, Mr. Caldwell argues that he does not
like Nurse Benson, that she is mean to him, and he is scared
of her.

He requests that the Court have her fired or force

CCUSO to use other medical personal instead.
beyond the power of the Court.

That request is

Under 42 U.S.C. § 1983, the

Court has the power to address and fix alleged constitutional
violations.

The fact that Mr. Caldwell does not like, and

does not get along with, Nurse Benson does not rise to a
constitutional violation.

Accordingly, that portion of his

Complaint must be dismissed.
B.

Feet and Leg Pain

The Plaintiff is alleging a violation of his civil rights
under

42

U.S.C.

§

1983.

Mr.

Caldwell

argues

that

the

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

As stated above, Mr. Caldwell

specifically alleges that the Defendants have failed to treat
chronic pain in his legs and feet.

7

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.

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
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).

This deliberate

indifference standard is used routinely in prisoner cases
related to medical care.
8

Courts also apply the deliberate indifference standard to
civilly committed individuals.
462

F.3d

deliberate

876,

889

(8th

indifference

Cir.

See Senty-Haugen v. Goodno,
2006),

standard

to

a

which

applied

medical-care

the

claim

raised by a patient involuntarily committed as a sexually
violent predator under the 14th Amendment.

See also Scott v.

Benson, 742 F.3d 335, 339 (8th Cir. 2014), stating, “where a
patient's Fourteenth Amendment claim is for constitutionally
deficient medical care, we apply the deliberate indifference
standard from the Eighth Amendment. Senty-Haugen, 462 F.3d at
889-90.”
Under the deliberate indifference standard, Mr. Caldwell
must show the Defendants were 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).
that,

objectively,

First, Mr. Caldwell must demonstrate
the

deprivation

he

suffered

was

“sufficiently serious; that is, it must result in the denial
of the minimal civilized measure of life's necessities.”
Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002).
9

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, Mr. Caldwell must establish

that the defendants acted with a “‘sufficiently culpable state
of mind’” to support liability 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 from the failure to
provide adequate care.

Walker, 293 F.3d at 1037.

“[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
10

problems, but also from deliberate indifference to conditions
posing an unreasonable risk of serious damage to future
health.” Board v. Farnham, 394 F.3d 469, 479 (7th Cir. 2005).
“Deliberate indifference must be measured by the official’s
knowledge at the time in question, 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)).
As stated above, to show deliberate indifference, Mr.
Caldwell must first show that, objectively, the deprivation he
suffered was "sufficiently serious; that is, it must result in
the

denial

of

necessities."

the

minimal

civilized

measure

of

life's

Walker, 293 F.3d at 1037 (7th Cir. 2002).

In

the medical care context, this objective element is satisfied
when a plaintiff demonstrates that his medical need itself was
sufficiently

serious.

Gutierrez,

111

F.3d

at

1369.

Accordingly, to succeed in his claim, Mr. Caldwell must show
that he has a significantly serious medical condition and that
the Defendants acted with a sufficient culpable state of mind.
As was discussed above, at this early stage of the case,
the Court must take Mr. Caldwell’s allegations as true and can
11

only dismiss the case if there is no way, given those facts,
that the Plaintiffs can prevail.

In this case, it is clear

that Mr. Caldwell’s leg/foot pain could be a serious medical
condition. It is also true, given Mr. Caldwell’s allegations,
that the Defendants could be violating Mr. Caldwell’s rights
by refusing to treat his pain.

Accordingly, the Court will

allow Mr. Caldwell’s claim to proceed past the initial review
stage. However, the Court notes that to ultimately succeed in
his

claim,

Mr.

Caldwell

must

show

that

his

pain

is

sufficiently serious such that the Defendants’ failure to
treat it amounted to a constitutional violation.
VI.

APPOINTMENT OF COUNSEL
Mr. Caldwell also filed a pro se Motion to Appoint

Counsel.6

28 U.S.C. §1915(e)(1) provides that appointment of

counsel for a person unable to afford counsel is within this
6

The Court notes that Mr. Caldwell specifically
requested attorney Robert Tiefenthaler, who previously
represented Mr. Caldwell on case 12-CV-4115-DEO. Plaintiffs
cannot choose what lawyer may be appointed to their case. In
any event, Mr. Tiefenthaler has declined participation in the
Court’s “2014-2015 Contract for 42 U.S. Code §1983 Case
Representation” (AO No.
14-AO-0007).
Therefore, Mr.
Tiefenthaler is not an option the Court can consider for an
attorney appointment (contract covers case appointments made
from September 1, 2014, to September 30, 2015) in a 42 U.S.C.
§1983 case.
12

Court’s discretion.
situation

and

the

Given Mr. Caldwell’s current financial
nature

of

his

claim,

his

Appointment of Counsel, Docket No. 2, is GRANTED.

Motion

for

The Court

hereby appoints an attorney Pamela Wingert under Library Fund
Administrative Order No. 14-AO-0007.

After consulting with

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

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

to proceed in forma pauperis, Docket No. 1, is GRANTED.

The

Plaintiff’s 42 U.S.C. § 1983 Complaint is allowed to proceed
as

described

above.

The

Plaintiff’s

Counsel, Docket No. 2, is GRANTED.

Motion

to

Appoint

Appointed counsel will

file an Amended Complaint within 45 days.
IT IS SO ORDERED this 9th day of October, 2014.

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

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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
ROCKY JOE CALDWELL,
Plaintiff,

No. 14-CV-4050-DEO

v.
CHARLES PALMER, BRAD WITTROCK,
AND MARY BENSON,
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: 10/9/14
I affirm that this notice and request for waiver of service of summons is being sent to you on behalf
, 2014.
of the plaintiff, this 9th day of October

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

14

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

10/9/14
(**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
ROCKY JOE CALDWELL,
Plaintiff,

No. 14-CV-4050-DEO

v.
CHARLES PALMER, BRAD WITTROCK
AND MARY BENSON,
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
10/9/14
, (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: 14-CV-4050-DEO
To:
RE:

10/9/14
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

16