West v. Palmer et al

Filing 10

INITIAL REVIEW ORDER (14-cv-04125-DEO) - Plaintiff's MOTION for Leave to Proceed in forma pauperis filed by Cory Blake West ( 1 in 5:14-cv-04125-DEO) is granted. Clerk of Court shall file and serve the complaint according to the attached servi ce forms; no filing fee will be assessed. Mr. West's pro se Complaint will be consolidated with case C14-4102-DEO. The Clerk of Court shall send a copy of this Order to Assistant Iowa Attorney General Gretchen Kraemer and attorney Pamela Winge rt. Mr. Wingert shall file and serve an Amended Complaint in C14-4102-DEO within 45 days from the date of this Order. Mr. West's MOTION to Appoint Counsel ( 2 in 5:14-cv-04125-DEO) is denied as moot. The Defendants the State of Iowa and the Department of Human Services/CCUSO are dismissed from the case. Signed by Senior Judge Donald E OBrien on 1/8/15. (djs) Modified on 1/8/2015 (copy w/nef mailed to plaintiff) (djs).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
CORY BLAKE WEST,
Plaintiff,
vs.

No. 14-CV-4125-DEO
INITIAL REVIEW ORDER

THE STATE OF IOWA, BRAD
WITTROCK, CHARLES PALMER,
RAYANN JACKSON, AND
DEPARTMENT OF HUMAN
SERVICES/CCUSO,
Defendants.
____________________
I.

INTRODUCTION AND BACKGROUND
This matter is currently before the Court on Cory West’s

[hereinafter, Mr. West] 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 January 5, 2015.

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 January 5, 2015.
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.

§

In this case, Mr. West has filed a Motion for

Leave to Proceed In Forma Pauperis that substantially complies
with the requirements set out above.

Accordingly, the Clerk

of Court shall file and serve the Plaintiff’s Complaint
according to the attached service forms.

No filing fee will

be assessed.

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

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
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.”
5

Id. at 570.

A

claim is only plausible if a plaintiff pleads “factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

Where the complaint

does “not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it
has not ‘show[n]’ - that the pleader is entitled to relief.”
Id. at 1950 (citing Fed. Rule Civ. Proc. 8(a)(2)).

In

addition, “the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions.”

Id. at 1949.

42 U.S.C. § 1983 provides:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
District of Columbia, subjects, or causes
to be subjected, any citizen of the United
States
or
other
person
within
the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress . . . .

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IV.

ISSUE
In

his

pro

se

Complaint,

Mr.

West

argues

that

the

screening

and

Defendants have inappropriately opened his mail.
V.

ANALYSIS
A.

Opening Legal Mail

Mr.

West

alleges

reading his legal mail.

that

CCUSO

has

been

Accepted as true, this clearly could

amount to a constitutional violation.

Accordingly, the Court

will allow this claim to proceed.
In the last year, Mr. West has filed a number of 42
U.S.C.

§

1983

Complaints.

In

one

of

those

cases,

14-CV-4102-DEO, the Court allowed Mr. West’s case to proceed
and appointed attorney Pamela Wingert to represent Mr. West.
The Court is persuaded that in the interest of judicial
economy, the above captioned case should be consolidated with
14-CV-4102-DEO.

The Clerk of Court shall send a copy of this

Order to attorney Wingert.

Attorney Wingert shall consult

with Mr. West and incorporate Mr. West’s claims related to
legal mail into the already ordered amended complaint in that
14-CV-4102-DEO.

The previous amended complaint deadline,

February 14, 2015, will be vacated and the amended complaint
7

in case 14-CV-4102 shall now be filed within 45 days of the
date of this Order.
B.

State Defendant

In his Complaint, Docket No. 1, Att. 1, Mr. West names
the State of Iowa and the Department of Human Services/CCUSO
as Defendants.
of

Human

Neither the State of Iowa nor the Department

Services

are

individuals.

42

U.S.C.

§

1983

specifically provides for a federal cause of action against a
"person" who, under color of state law, violates another's
federal rights.

In Will v. Michigan Dept. of State Police,

the Supreme Court ruled "that a State is not a person within
the meaning of § 1983."

491 U.S. 58, 63 (1989).

Therefore,

the Plaintiff’s § 1983 Complaint cannot proceed against the
State of Iowa or one of its agencies because they are not a
"persons" under the law.

Accordingly, the State of Iowa and

the Department of Human Services/CCUSO must be dismissed from
the case.
C.

Appointment of Counsel

Mr. West filed a Motion to Appoint Counsel.
2.

Docket No.

Because this case will be consolidated with case 14-CV-

8

4102, Mr. West’s Motion for Appointment of Counsel will be
denied as moot.
VI.

CONCLUSION
For the reasons set out above, Mr. West’s pro se Motion

for Leave to Proceed In Forma Pauperis, Docket No. 1, is
granted.

The

Clerk

of

Court

shall

file

and

serve

the

complaint according to the attached service forms; no filing
fee will be assessed.

However, Mr. West’s pro se Complaint

will be consolidated with case 14-CV-4102-DEO.

The Clerk of

Court shall send a copy of this Order to Assistant Iowa
Attorney General Gretchen Kraemer (Department of Justice,
Regents and Human Services Division, Hoover Building, Des
Moines, Iowa 50319-0109) and attorney Pamela Wingert (1212
18th Street, Spirit Lake, Iowa 51360). Ms. Wingert shall file
and serve an Amended Complaint in 14-CV-4102-DEO within 45
days from the date of this Order.
matter

shall

be

done

in

Any further filings on this

Docket

No.

14-CV-4102-DEO.

Additionally, Mr. West’s pro se Motion to Appoint Counsel will
be denied as moot.

Finally, the Defendants the State of Iowa

9

and the Department of Human Services/CCUSO are dismissed from
the case.
IT IS SO ORDERED this 8th day of January, 2015.

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

10

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
CORY BLAKE WEST,
Plaintiff,

No. 14-CV-4125-DEO

v.
CHARLES PALMER, 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
1/08/15
.
Clerk’s Office in the envelope provided within thirty (30) days of this date:
I affirm that this notice and request for waiver of service of summons is being sent to you on behalf
January 8
, 2015.
of the plaintiff, this
/s/ djs, Deputy Clerk

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

11

ACKNOWLEDGMENT OF RECEIPT OF
NOTICE OF LAWSUIT,
and WAIVER OF SERVICE OF SUMMONS
1/8/15
(**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
CORY BLAKE WEST,
Plaintiff,

No. 14-CV-4125-DEO

v.
CHARLES PALMER, et al.,
Defendants.
____________________
I acknowledge receipt of the complaint and notice of the lawsuit in which I (or the entity on whose
behalf I am addressed) have been named a defendant. I have received and/or read the complaint
accompanying this document.
I agree to save the cost of service of a summons and an additional copy of the complaint by not
requiring that I (or the entity on whose behalf I am acting) be served with judicial process in the manner
provided by Rule 4 of the Federal Rules of Civil Procedure. I hereby waive service of summons.
I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or
to the jurisdiction or venue of the Court except for objections based on a defect in the service of summons.
I understand that a judgment may be entered against me (or the entity on whose behalf I am acting) if an
answer or motion under Rule 12 of the Federal Rules of Civil Procedure is not served within 60 days after
1/8/15
, (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)

12

Address Form
Case Number: 14-CV-4125-DEO
To:
RE:

1/8/15
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 Gretchen Witte Kraemer
Department of Justice
Regents and Human Services Division
Hoover Building
Des Moines, Iowa 50319-0109

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