West v. Palmer et al
MEMORANDUM OPINION AND ORDER - Granting (25 in 5:14-cv-04102-LTS) MOTION for Summary Judgment filed by Nate Reinart, Rayann Jackson, Mike McDonald, Charles Palmer, Brad Whitrock, Clint Frederickson. This action is hereby dismissed with prejudice. Judgment shall enter against the plaintiff. Signed by Chief Judge Leonard T Strand on 8/17/2017. Associated Cases: 5:14-cv-04102-LTS, 5:14-cv-04125-LTS (src) (Main Document 30 replaced on 8/17/2017 - to correct caption) (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CORY BLAKE WEST
CHARLES PALMER, BRAD
WITTROCK, CLINT FREDERIKSEN,
REANN JACKSON, MIKE McDONALD
and NATE REINERT,
OPINION AND ORDER
Presently before the Court is defendant’s motion for summary judgment. Doc.
No. 25. Plaintiff has filed a resistance (Doc. No. 26) and defendants have filed a reply
(Doc. No. 27). The plaintiff also filed a pro se supplement. Doc. No. 29. The motion
is deemed fully submitted on the parties’ written submissions.
West is a patient at the Civil Commitment Unit for Sexual Offenders (CCUSO),
located in Cherokee, Iowa. 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.”1 The State of Iowa committed West after a string of sex crime convictions,
including a “conviction [which] occurred in 2008 following his guilty plea to assault
Civil Commitment Unit for Sexual Offenders, Iowa Department of Human Resources,
http://dhs.iowa.gov/mhds/mental/in-patient/ccuso (January 9, 2017).
with intent to commit sexual abuse, in violation of Iowa Code §§ 708.1, 709.11, and
901A.2(2).” In re Det. of West, 829 N.W.2d 589 (Table), 2013 WL 988815 (Iowa Ct.
Since being committed to CCUSO, West has filed a variety of suits in this court.
See, e.g., C12-4059-DEO.
West filed the above captioned case on November 14,
2014. Doc. No. 1. Senior United States District Judge Donald E. O’Brien granted
West’s motion to proceed in forma pauperis and his motion to appoint counsel. Doc.
No. 3. Around the same time, West filed a factually related case, C14-4098-MWB.
That case was a 42 U.S.C. § 1983 case against a non-governmental entity, Tyson
Foods, Inc. West later voluntarily dismissed that case. C14-4098-MWB, Doc. No. 4.
However, West then refiled a factually identical case as an employment discrimination
action. C15-4052-CJW. The parties in that case eventually entered into a stipulation of
dismissal. C-15-4052-CJW, Doc. No. 27.
Shortly after filing the above captioned case, West filed another pro se
In that complaint, West alleged various CCUSO
defendants were opening his mail. Judge O’Brien consolidated C14-4125-DEO with
the above captioned case.
Doc. No. 10.
Judge O’Brien then directed appointed
counsel to file one consolidated amended complaint, which she did. Doc. No. 12.
West’s amended complaint contains five different claims. First, West alleges
that the defendants were deliberately indifferent to a risk of sexual assault that West
suffered while working at Tyson Industries.
Next, West alleges that the defendants
improperly forced him to disclose his mental health diagnosis to his Tyson employers.
Third, West alleges that the defendants have read his legal mail. Fourth, West alleges
that the defendants have engaged in retaliation for his past lawsuits. Finally, West
alleges that the defendants have infringed on his religious liberty.
The parties agree to many of the relevant facts. As noted above, the State of
Iowa committed West as a sexually violent predator in September, 2011. West, 2013
WL 988815 *1.
West proceeded through the “phases” of treatment at CCUSO
relatively quickly, earning “phase 5” in October, 2013.2
Phase 5, or transitional
release, allowed West to get a job outside of the CCUSO facility.
employment at Tyson’s meat processing plant in Storm Lake, Iowa.
August 2014, West failed to return to the CCUSO facility after his work shift. A few
days later the U.S. Marshals Service captured him in Oklahoma.
incident, the Iowa District Court revoked his transitional release and West plead guilty
to escape related charges.
West claims he was sexually harassed and assaulted while at Tyson. He blames
the treatment he received at Tyson as the reason he absconded. West alleges that
Ricardo Perez, his supervisor, and Rick Lipai, a co-worker, harassed and intimidated
him while he was at Tyson. West said they made graphic derogatory remarks related to
his status as a sex offender. West further claims Lipai burned West with a steam valve
and grabbed him while he was nude taking a work-related shower.
West asserts he reported the incidents to Perez per the “chain of command.”
Reporting incidents to your supervisor was generally consistent with Tyson’s policy,
although it stated that if you were harassed by your supervisor you could seek out a HR
supervisor directly. Following his return to Iowa, West also filed a police report and a
grievance with the Iowa Civil Rights Commission. Neither was resolved in West’s
favor. Tyson also internally investigated the situation but took no action. Both Lipai
and Perez denied anything happened.
West testified that he told CCUSO employees Jeremy Rowenbeck and Clint
Frederiksen about the initial harassment he encountered at Tyson. He also stated that
he “briefly mentioned” the sexual assault to CCUSO employee Byron Kelley, but
The treatment “phases” at CCUSO have been explained in numerous other orders. See, e.g.,
Willis v. Palmer, 175 F. Supp. 3d 1081, 1090-92 (N.D. Iowa 2016).
“didn’t get a chance to go into the whole detail on it.”
The CCUSO employees
testified that they did not recall West making specific complaints about working at
Tyson, just general complaints about the nature of the work. West did not file any
grievances with CCUSO about the situation, did not write any “kites” about it, nor did
he request that he be allowed to get a different job. West also claims he kept a journal
about the situation, but the defendants contend the journal West submitted is not
CCUSO directs patients to disclose their status as sex offenders when they are
seeking employment. In addition, West’s status as a committed sex offender is public
record, as is the fact that he is required to register as a sex offender. The parties agree
that Iowa Code § 229A.15 requires medical records to be sealed from the public.
According to West, CCUSO employee Mike White told him to disclose that he was a
sexual offender, with a mental abnormality of paraphilia not otherwise specified.
As will be discussed more below, CCUSO’s general mail policy has been
reviewed and approved by this court. Per the policy, CCUSO is directed to deliver
legal mail unopened to the patients. On one instance, a piece of West’s mail that
should have been considered legal mail was opened outside West’s presence. West
filed a grievance consistent with CCUSO policy alleging his legal mail was opened
outside his presence. That piece of mail was preserved and included in the parties’
appendix. (Doc. No. 25-3 at 57.) CCUSO found, and I agree, that because of the way
the return address was positioned on the envelope, it was impossible to see that letter
was from the clerk of court. Instead, the letter appeared to be normal government
In an additional incident, defendant Reann Jackson allegedly read
legal mail West was attempting to mail. Jackson denies this allegation. West filed a
grievance. In response, defendant Wittrock sent an email to CCUSO staff reminding
them that they were not allowed to read legal mail. West also claimed someone looked
at legal documents in his room and on his flash drive.
The facts related to West’s retaliation claim are sparse. He generally alleges that
he was retaliated against for filing a lawsuit. He alleges he lost access to a DVD
player. However, there were no disciplinary reports associated with this restriction.
Additionally, West alleges that his lost access for religious materials was in retaliation
for filing a lawsuit.
West belongs to a Pentecostal Christian church. At some point in the past,
Pentecostal Pastor Jerry Greenwalt provided services at CCUSO, but had stopped doing
so before the events giving rise to this case. West, upon earning transitional release,
developed a relationship with Pastor Kevin Grimes and attended Grime’s Pentecostal
services in Spencer, Iowa. However, following his escape to Oklahoma, West was not
allowed to leave CCUSO and was otherwise restricted to its highest security
classification. Both his access to visitors and his access to the phone was restricted. At
one point, he sought to call Pastor Grimes. Defendant Reinert initially told West that
he could only call his attorney. However, within a few hours, West was informed he
was allowed to call his pastor.
West also filed a kite asking for access to his pastor. However, CCUSO has no
control over whether independent pastors are willing or able to work with CCUSO
patients. The parties generally dispute the other religious services available at CCUSO,
the frequency of the non-denominational services and the quality of the religious
materials, such as books and vocational information, available. There is no real dispute
that West has access to Bob Stout, the CCUSO chaplain, and to other common religious
material at CCUSO. There is no dispute that West requested additional, in person,
contact with a Pentecostal minister, but as Stout testified, CCUSO defendants have no
control over whether outside pastors are willing to visit the CCUSO facility.
Related to both his free exercise and retaliation claims, a number of West’s
personal items were secured by CCUSO employees after his escape. Only certain items
were returned to his direct control when he returned to CCUSO, as patients in
CCUSO’s secure facility are allowed less personal property than those who have
advanced to the transitional release, non-secured, part of the facility.
process, certain religious items were secured by CCUSO employees. However, it is
undisputed that West failed to file “kites” formally asking that the property be returned.
SUMMARY JUDGMENT STANDARDS
Any party may move for summary judgment regarding all or any part of the
claims asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate
when “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine issue of material fact and
that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
A material fact is one that “‘might affect the outcome of the suit under the
governing law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“the substantive law will identify which facts are material.”
Facts that are
“critical” under the substantive law are material, while facts that are “irrelevant or
unnecessary” are not. Id.
An issue of material fact is genuine if it has a real basis in the record, Hartnagel
v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or when “‘a reasonable jury could
return a verdict for the nonmoving party’ on the question,” Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248).
Evidence that only provides “some metaphysical doubt as to the material facts,”
Matsushita, 475 U.S. at 586, or evidence that is “merely colorable” or “not
significantly probative,” Anderson, 477 U.S. at 249-50, does not make an issue of
material fact genuine.
As such, a genuine issue of material fact requires “sufficient evidence supporting
the claimed factual dispute” so as to “require a jury or judge to resolve the parties'
differing versions of the truth at trial.” Anderson, 477 U.S. at 248-49. The party
moving for entry of summary judgment bears “the initial responsibility of informing the
court of the basis for its motion and identifying those portions of the record which show
a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at
Once the moving party has met this burden, the nonmoving party must go
beyond the pleadings and by depositions, affidavits, or otherwise, designate specific
facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods, 415
F.3d 908, 910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is
genuine and material as it relates to the substantive law. If a party fails to make a
sufficient showing of an essential element of a claim or defense with respect to which
that party has the burden of proof, then the opposing party is entitled to judgment as a
matter of law. Celotex, 477 U.S. at 322.
In determining if a genuine issue of material fact is present, I must view the
evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at
Further, I must give the nonmoving party the benefit of all reasonable
inferences that can be drawn from the facts. Id. However, “because we view the facts
in the light most favorable to the nonmoving party, we do not weigh the evidence or
attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo &
Co., 383 F.3d 779, 784 (8th Cir. 2004). Instead, “the court's function is to determine
whether a dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90
F.3d 1372, 1376-77 (8th Cir. 1996).
Failure to Protect Claim
West alleges that the defendants forced him to work at Tyson and to reveal to his
Tyson co-workers that he is a sex offender. West alleges that because of his status as a
sex offender, he was harassed and assaulted while working at Tyson. He contends
CCUSO employees knew he was in danger at Tyson but ignored that danger.
The parties’ arguments
In their motion, defendants concede that in most situations they have a duty to
protect incarcerated or committed individuals. They cite Reynolds v. Dormire, 636
F.3d 976 (8th Cir. 2011), for the proposition that the proper constitutional standard in
this case is deliberate indifference. They then argue:
There is insufficient evidence that the Defendants at CCUSO knew
there was a risk of assault and were deliberately indifferent to that risk.
Tyson’s had a policy against harassment. Policies against harassment
indicate that employers take harassment seriously and are concerned with
the well-being of their employees. West admitted he did not follow the
Tyson’s policy. West claims he talked to Frederiksen about the
harassment. Frederiksen denies it. West claims it was in his journals so
McDonald should have known. The journals he produced in discovery,
however, are not the same as those turned in to CCUSO. West admits
that he never told any Defendant directly that he wanted a different job.
. . . The alleged assault at issue occurred at Tyson’s Foods. Mr.
West admitted Tyson’s is in control of security. CCUSO had no control
over the environment at Tyson’s. Van Smith v. Franklin, 286 F. App'x
373, 374-75 (9th Cir. 2008) (holding undisputed that parole officer
defendants had no control over paroled SVP at jail and hospital, so no
liability for failure to protect claim).
Doc. No. 25-2 at 8-9. Defendants also argue:
The law is not clearly established that CCUSO Defendants have a
constitutional obligation to protect patients outside its facility. Even if this
Court finds that there was some obligation on Defendants to do something
in this novel circumstance, that would be new law. Qualified immunity
remains appropriate. Hinshaw v. Smith, 436 F.3d 997, 1002 (8th Cir.
1996) (stating standard whether legal norms allegedly violated were
clearly established at the time of the challenged action); Gorman v.
Bartch, 152 F.3d 907, 914-15 (8th Cir. 1998) (finding, under facts, that
reasonable officials would not have known the ADA applied to transport
of arrestees); Offet v. Solem, 936 F.2d 363, 366 (8th Cir. 1991) (holding
governmental officials are not required to guess at their peril the
development of constitutional doctrine).
Id. at 9-10.
[T]he state must protect those in its custody and second, the state also
must protect individuals if the state created the particular danger to which
the individuals are subjected. Id. at 799. By requiring Mr. West to work
at Tysons and requiring that he disclose his status as a sex offender and
his diagnosis, Defendants placed him in a dangerous situation. He was
physically injured and sexually assaulted as a result. He was required by
Defendants to maintain his employment in order to maintain his status in
transition and his efforts to find alternate employment were rebuffed.
Defendants argue that the law was not clearly established that they
have an obligation to protect patients outside their walls. Yet these
officials were involved in the selection of Tyson’s as Mr. West’s
employer and required him to disclose information that subjected him to
harassment at the workplace. Mr. West testified that he reported the
harassment and defendants dispute his account of events. Defendants seem
to want to rely on Mr. West’s journals when it suits them but deny any
knowledge of its contents elsewhere. Defendant Reinert testified that a
review of Mr. West’s journal revealed a possible relationship with a
female that had not been disclosed in group therapy sessions. App. 173
(Fredericksen Dep. 17). Yet on the issue of failure to protect Mr. West
from the risk that they created, they deny any knowledge of the content of
those journals. If there is a genuine factual dispute regarding facts
material to the case, there can be no summary judgment. Greiner v. City
of Champlin, 27 F.3d 1346, 1352 (8th Cir. 1994).
Doc. No. 26-1 at 4-5.
“When a person is involuntarily confined in a state mental health facility, the
State has a duty imposed by the Substantive Due Process Clause of the Fourteenth
Amendment to provide a ‘reasonably safe environment.’” Elizabeth M. v. Montenez,
458 F.3d 779, 786 (8th Cir. 2006) (quoting Beck v. Wilson, 377 F.3d 884, 890 (8th
Cir. 2004)). “To establish prison officials3 failed to prevent harm, [the plaintiff] first
The deliberate indifference standard arising under the Fourteenth Amendment for patients
who have been civilly committed is the same as the deliberate indifference standard arising
must prove he was ‘incarcerated under conditions posing a substantial risk of serious
harm.’” Holden v. Hirner, 663 F.3d 336, 341 (8th Cir. 2011) (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994)). “This is an objective requirement to ensure the
deprivation is a violation of a constitutional right.” Holden, 663 F.3d at 341. “Second,
[the plaintiff] must establish the prison officials were deliberately indifferent to inmate
health or safety.” Id. “This is a subjective requirement, mandating the prisoner prove
the official both knew of and disregarded ‘an excessive risk to inmate health or
safety.’” Id. (quoting Farmer, 511 U.S. at 837). “Th[e] requisite state of mind is akin
to recklessness, which is ‘more blameworthy than negligence,’ yet less blameworthy
than purposefully causing or knowingly bringing about a substantial risk of serious
harm.” Lenz v. Wade, 490 F.3d 991, 995 (8th Cir. 2007) (quoting Farmer, 511 U.S. at
835); see also Triplett v. Palmer, 592 F. App'x 534, 536 (8th Cir. 2015) (emphasizing
that mere negligence on the part of officials is not sufficient to establish deliberate
The Eighth Circuit recently stated:
The Due Process Clause generally does not provide a cause of
action for “a State's failure to protect an individual against private
violence.” DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S.
189, 197, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). Our precedent
establishes, however, that the Constitution requires a State to protect a
person in two circumstances: when the person is in the State's custody,
and when the State created the danger to which the individual is subjected.
See Fields v. Abbott, 652 F.3d 886, 890 (8th Cir.2011).
Montgomery v. City of Ames, 749 F.3d 689, 694 (8th Cir. 2014).
This case could present a complicated question about the extent to which
CCUSO has a duty to protect a patient working at outside employment while on
transitional release. There is little precedent to help determine whether West was “incustody” while at Tyson, or whether the state created a danger by placing West at
under the Eighth Amendment for prisoners. Estate of Johnson v. Weber, 785 F.3d 267, 272
(8th Cir. 2015)
However, I need not reach that issue.
As set out above, the appropriate
standard in this case is the deliberate indifference standard, which asks whether there
was a risk and whether defendants were deliberately indifferent to that risk. I will
assume without deciding that there was a risk that defendants were responsible for,
either because West was in custody or because defendants created the risk by placing
West at Tyson. I will also assume that West has created a question of fact that he was
harassed and assaulted while at Tyson.4 Even assuming those two factors, there is no
evidence that defendants were deliberately indifferent to his health or safety. West
acknowledges that the most he did prior to his escape was mention, in passing, that he
was being harassed at Tyson. He did not file any kites informing defendants of the
harassment. He did not request a new job. He did not comply with Tyson’s internal
guidelines for reporting work place harassment or violence.
Quite simply, he did
nothing to put the defendants on notice of the situation. If defendants had no reason to
know that West was being subjected to a hostile work environment at Tyson, they could
not recklessly disregard that risk. Accordingly, defendants are entitled to summary
judgment on this claim.
Defendants argue that West cannot make a valid claim regarding confidentiality.
Mr. West himself disclosed true information. CCUSO does require
that SVPs disclose their SVPS status and that they are on the Sex Offender
Neither of these assumptions is actually supported by the record. West points to no case law
that supports his assertion that defendant’s liability could extend to his outside employment at
Tyson. Moreover, the only evidence that West was harassed and attacked at Tyson are his
own statements. While it is plausible that a CCUSO patient may face work place violence, it is
equally plausible, as asserted by the defendants, that West’s explanation that he escaped to
Oklahoma to avoid work place violence was subterfuge and that West escaped because he knew
he was violating CCUSO policy by engaging in an illicit relationship.
registry. Those facts are admitted. What is in dispute is whether Mr.
West was required by CCUSO to disclose the “nature of his mental
Doc. No. 27 at 2. Defendants argue:
There is an open question in the Eighth Circuit whether disclosure of
medical information states a constitutional violation.
Armentrout, 97 F.3d 1078, 1084 (8th Cir. 1996) (granting qualified
immunity where prison officials disclosed inmates HIV positive status).
Assuming for the sake of this argument that it does, West’s claim should
fail for three reasons. 1) None of the named Defendants disclosed this
information or required him to disclose it. West testified that Mike White
– who is not a named defendant – advised him to disclose certain
information during the hiring process. 2) West himself disclosed
information in the job seeking process. 3) The information CCUSO
recommends patients disclose is not confidential. A person’s criminal
record is public. See generally Iowa Code 22.2 (establishing the right of
the public to records unless an exception is provided by law). The sex
offender registry is public. And the order adjudicating Mr. West of
having a mental abnormality and confining him to CCUSO is public. Iowa
Code 229A.15 requires any psychological report, treatment records, or
medical records to be sealed. This is the only part of the SVP commitment
process that is protected from the public domain. All other pleadings and
orders are public. See, e.g., In re: Detention of West, No. 11-1545, 2013
WL 988815 (Iowa Ct. App. Mar. 13, 2013) (discussing Mr. West’s
criminal history and mental abnormality).
Doc. No. 25-2 at 10-11. Defendants also note:
The Ninth Circuit recently “join[ed] our sister circuits in holding
that prisoners do not have a constitutionally protected expectation of
privacy in prison treatment records when the state has a legitimate
penological interest in access to them.” Seaton v. Mayberg, 610 F.3d
530, 534-5 (9th Cir. 2010). The court collected citations from other
circuits in footnote 18, noting that the Second, Third, Fifth, Sixth,
Seventh, Eighth, and Eleventh were in agreement.
Id. at 10 n.1.
West responds as follows:
An individual has a constitutionally protect interest in avoiding
disclosure of personal information. Cooksey v. Boyer, 289 F.3d 513,
515-16 (8th Cir. 2002)(citing Whalen v. Roe, 429 U.S. 589, 598, 97 S.
Ct. 869, 51 L. Ed.2d 64 (1977)). Mr. West was required to disclose his
status as a sex offender to his employer and his coworkers. This
disclosure subjected him to harassment at his workplace. The sex
offender registry certainly is public, along with certain documents related
to the litigation that brought Mr. West to CCUSO. But neither the court
order cited by Defendants’ brief nor the decision of the Iowa Court of
Appeals they reference identified the nature of his mental abnormality.
See In re: Detention of West, 2013 WL 988815 (Iowa Ct. App.) and App.
142-43. The nature of that abnormality was not in those documents yet
disclosure was required, both during the hiring process and to his
supervisor at Tysons once he was employed, in violation of Mr. West’s
right to privacy.
Doc. No. 26-1 at 5.
The parties are correct that the law regarding medical disclosure and privacy
rights has not been clearly delineated by the Eighth Circuit. However, the Eighth
Circuit recently considered a medical disclosure case from this district, and granted the
defendants qualified immunity. In that case, Willet v. Smith et. al., C11-4090-MWB, a
CCUSO patient alleged that a CCUSO employee had disclosed the patient’s medical
information to a different CCUSO patient. See Willet, C11-4090-MWB, Doc. No. 73
This court assumed without deciding that the Seaton standard, referenced
above, is correct, meaning that individuals have a constitutional right to privacy, but in
the context of prisoners (and civilly committed patients) that right can be abrogated by a
legitimate institutional interest. C11-4090-MWB, Doc. No. 73 at 2. In denying the
defendants’ summary judgment motion, the court found that there was no legitimate
penological interest in disclosing the plaintiff’s medical information. The defendants
appealed, and in an unpublished per curiam decision, the Eighth Circuit found the
defendants were entitled to qualified immunity because the privacy rights were not
clearly established. Willet v. Smith, 627 F. App'x 580 (8th Cir. 2016). However, the
court did not expound upon the proper privacy standard. Accordingly, I will continue
to assume that Seaton sets out the proper standard. See e.g. Haid v. Cradduck, No.
5:14-CV-5119, 2016 WL 3555032, at *5 (W.D. Ark. 2016) (drawing the same
However, establishing the correct standard does not resolve the issues in this
case because defendants do not argue that there is a legitimate institutional interest in
the disclosing of West’s confidential information.
Rather, they argue: (1) West’s
information was not confidential; (2) no named defendant required West to disclose the
information; and (3) defendants are entitled to qualified immunity. I agree on all three
First, the fact that West is a sex offender is a matter of public record. There is
no violation in either disclosing that fact or requiring West to do so when he applies for
jobs. West also argues that he was required to disclose his actual medical diagnosis.
However, assuming that is true, and assuming that disclosing his mental health
diagnosis would amount to a violation of his right to privacy, the person West alleges
forced him to make the disclosure is not a party to this case.
As noted above,
according to West, CCUSO employee Mike White told him to tell Tyson that he was a
sex offender, with a mental abnormality of paraphilia not otherwise specified. A claim
against a person who is not a party to this case must fail.
Finally, in Willet the Eighth Circuit found CCUSO defendants entitled to
qualified immunity in a privacy case where the facts viewed in the light most favorable
to the plaintiff showed a clear privacy violation.
Accordingly, because the Willet
defendants were entitled to qualified immunity on the plaintiff’s monetary claims, so
too are these defendants.
For all three reasons, defendants’ motion for summary
judgment is granted in regards to West’s confidentiality claim.
The Parties’ Arguments
Regarding West’s mail claim, defendants note that this court has previously
reviewed and approved CCUSO’s mail policy and assert that they generally follow the
policy. However, conceding that West has created a genuine issue of fact regarding
whether certain defendants violated the policy on various occasions, defendants argue:
Even if Mr. West is correct and staff opened or read between two
and fifteen of his legal letters in contravention of CCUSO’s policy, under
qualified immunity mere negligence is not enough; he must show that the
staff deliberately and knowingly violated his constitutional rights.
Garnder v. Howard, 109 F.3d 427 (8th Cir. 1997). CCUSO has an
appropriate and judicially approved policy on mail. See, e.g., Wolff v.
McDonnell, 418 U.S. 539 (1974) (discussing standard). Mr. West cannot
mount proof that Reann Jackson knowingly read his mail in deliberate
contravention of his rights. Nor can Mr. West prove who opened the
other letter. He admits he does not know who opened it, but holds
Wittrock responsible as the director. This is insufficient under 1983.
Gardner, 109 F.3d at 430-31 (holding mail clerk who inadvertently
opened a letter outside inmate’s presence did not state a claim). “We
have never held or suggested that an isolated, inadvertent instance of
opening incoming confidential legal mail will support a § 1983 damage
action. Rather, we agree with other circuits that an “isolated incident,
without any evidence of improper motive or resulting interference with
[the inmate's] right to counsel or to access to the courts, does not give rise
to a constitutional violation.” Gardner, 109 F.3d at 431 (citing Smith v.
Maschner, 899 F.2d 940, 944 (10th Cir.1990); see Morgan v. Montanye,
516 F.2d 1367, 1370–71 (2d Cir.1975), cert. denied, 424 U.S. 973
(1976)). Further, Mr. West does not explain how an inadvertently
opened, otherwise public document, interferes with his right to counsel or
access to the courts.
Doc. No. 25-2 at 12-13.
It is long established that those in state custody have the right to
privacy in their legal mail. Wolff v. McDonnell, 418 U.S. 539, 577, 94
S. Ct. 2963, 2985, 41 L. Ed. 2d 935 (1974). Generally, it may be
opened in the inmate’s presence to inspect for contraband but may not be
read. This is said to be the policy at CCUSO yet Mr. West complains of
numerous instances where the policy was not followed. His clearly
marked legal mail was opened outside his presence and has even read by
Defendant Jackson in his presence. Defendants assert that even if staff
opened or read up to 10-15 pieces of Mr. West’s legal mail this would
amount to mere negligence. These are clearly not isolated instances. It is
fine for CCUSO to have a policy regarding legal mail but they cannot
hide behind their policy when it is clearly not followed and Mr. West’s
rights are repeatedly violated.
Doc. No. 26-1 at 6.
To the extent West seeks to change CCUSO’s mail policy, he is prohibited from
doing so. CCUSO patients previously litigated the constitutionality of the mail policy
as a class in Taft et. al., v. Turner et. al., C05-4065-DEO. That action concluded with
a settlement agreement that was accepted by this court. Id., at Doc. No. 151. The
agreement is binding on all parties and the class members waived and released all
claims raised in the complaints. Accordingly, West’s claims must be grounded in an
allegation that CCUSO has violated the policy.
West claims that CCUSO violated its own policy and opened his legal mail
outside his presence. As noted above, it is undisputed that on one instance a CCUSO
official did open a piece of mail that should have been considered legal mail from a
West followed proper grievance procedure and CCUSO’s administration
determined that the letter was insufficiently marked legal mail. On another occasion,
West alleges Jackson read a piece of legal mail he was trying to send. West filed a
grievance and CCUSO sent a reminder to staff about the proper legal mail policy.
West also alleges that a flash drive with legal work was accessed by Jackson and other
CCUSO employees. Finally, West alleges that his legal mail was opened several other
times by Jackson and other CCUSO employees.
The constitutional right to legal papers and to be free from interference with
legal mail are closely related to the access to courts. Goff v. Nix, 113 F.3d 887, 892
(8th Cir. 1997) (“The taking of an inmate's legal papers can be a constitutional
violation when it infringes his right of access to the courts.”).
“[p]rivileged prisoner mail, that is mail to or from an inmate's attorney and identified
as such, may not be opened for inspections for contraband except in the presence of the
prisoner.” Jensen v. Klecker, 648 F.2d 1179, 1182 (8th Cir. 1981). Additionally:
The taking of an inmate's legal papers can be a constitutional violation
when it infringes his right of access to the courts. The taking of legal
papers will often (though perhaps not always) interfere with an inmate's
right of access to the courts. We will not deny relief on the unsupported
assumption that the papers involve only frivolous claims. Therefore, the
destruction or withholding of inmates' legal papers burdens a
constitutional right, and can only be justified if it is reasonably related to a
legitimate penological interest.
Goff, 113 F.3d at 892.
Regarding his broad claims, West has failed to create a material issue of fact that
his flash drive was accessed or that his mail was opened numerous times in violation of
CCUSO’s policy. He has presented no evidence, apart from his own suspicions, to
support those claims. See Anuforo v. C.I.R., 614 F.3d 799, 807 (8th Cir. 2010) (a selfserving allegation does not create a genuine factual dispute.) However, there are two
instances in which West has provided support for his legal papers/mail claims: (1) the
allegation that a particular item of mail was opened improperly and (2) the allegation
that Jackson read a piece of legal mail.
Regarding the first, I agree with CCUSO that it was impossible for CCUSO
employees to know that letter from the clerk of court was legal mail. The Eighth
Circuit has stated that a mail claim must include an allegation that the state actor
deliberately opened confidential correspondence. See Gardner v. Howard, 109 F.3d
427, 431 (8th Cir. 1997). As I noted above, the letter at issue was not clearly marked
as legal mail. Accordingly, it was accidently opened. Under Eighth Circuit precedent
an accidental opening is not a constitutional violation.
Regarding the second incident, during which Jackson allegedly read West’s mail,
there is no allegation that this was a mere “accident.” Thus, and viewing the evidence
most favorably to West, a named defendant intentionally violated CCUSO’s policy and
read a piece of confidential legal correspondence. However, it is firmly established
that non-prejudicial, isolated incidents, cannot give rise to constitutional claims in this
context. Beaulieu v. Ludeman, 690 F.3d 1017, 1037 (8th Cir. 2012); Gardner, 109
F.3d at 430-31. Because this is a lone isolated incident, with no allegation of prejudice,
West has failed to allege a question of fact that can proceed to trial.
The Parties’ Arguments
To show retaliation for the exercise of a federally protected right,
Plaintiff must show: (A) that he exercised a constitutionally protected
right; (b) that he was disciplined; and (c) exercising that right was the
motivation for the discipline. Hanes v. Stephenson, 588 F.3d 1152, 1155
(8th Cir. 2009). West claims his constitutionally protected right is filing a
lawsuit. He admits, however, that he was not disciplined. He describes
what he seeks – like access to his DVD player – as privileges. CCUSO
issues behavior reports as discipline. See, e.g., Swanson v. CCUSO, 737
N.W.2d 300, 302-05 (Iowa 2007) (describing CCUSO’s patient handbook
sections on the phase and level system). Plaintiff cannot muster proof on
the second element. Given there was no discipline, there can be no
animus behind the discipline, resulting in a failure of proof on the third
element as well. The record also shows that West did little to clarify the
issue. He testified that he spoke to one person about his property once,
soon after he returned from jail. He filed no kites. He filed no
grievances. Instead, he brought a federal claim. Communication can
solve many concerns.
Doc. No. 25-2 at 13.
Privileges that should have been available to Mr. West due to his
status in treatment were denied to him and he believes the deprivation was
a result of retaliation by the Defendants. When he complains about his
adverse treatment, he is told that they will be letting litigation handle it.
App. 8 (West Dep. 30). Mr. West was denied access to his religious
books and DVDs, his DVD player and was denied even phone contact
with his pastor. Defendants see these as mere privileges but it is not only
formal discipline that can be the basis for a prima facie case of retaliation.
Adverse actions which show retaliation can include a denial of a privilege.
Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004).
Doc. No. 26-1 at 6.
The parties agree on the correct legal standard.
As the Eighth Circuit has
In order to demonstrate retaliation in violation of the First Amendment
under 42 U.S.C. § 1983, [an inmate] must “show (1) he engaged in a
protected activity, (2) the government official took adverse action against
him that would chill a person of ordinary firmness from continuing in the
activity, and (3) the adverse action was motivated at least in part by the
exercise of the protected activity.” Revels v. Vincenz, 382 F.3d 870, 876
(8th Cir.2004) (citing Naucke v. City of Park Hills, 284 F.3d 923, 927–28
Spencer v. Jackson Cty., Mo., 738 F.3d 907, 911 (8th Cir. 2013).
West’s allegations are similar to those in another recent CCUSO case, Altman v.
Palmer, C13-4066-DEO, 2015 WL 1383824, at *8 (N.D. Iowa 2015). In that case,
Altman alleged that he filed a lawsuit, which is undisputedly a protected activity, and
was then denied various privileges at CCUSO including access to religious services.
This court observed that the protected activity factor was met, and assumed without
deciding that Altman had suffered an adverse action, but found Altman had failed to
allege any facts that the adverse action was related to the protected activity.
The same analysis applies here. West did engage in a protected activity, and
there may have been an adverse action.5 However, there is absolutely no evidence
connecting the protected activity and the subsequent adverse action. Without an issue
of fact regarding the third factor – motivation – West’s claim fails.6
Free Exercise Claim
In Youngberg v. Romeo, 457 U.S. 307 (1982), the Supreme Court held that the
Fourteenth Amendment of the United States Constitution determines the rights of
individuals who have been involuntary committed to a facility. Id. at 312. Although
residents at state institutions do have constitutionally protected interests, these rights
must be balanced against the reasons put forth by the State for restricting their liberties.
Id. at 321. Because inmates retain their First Amendment right to the free exercise of
religion in prison, O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987), so too do
civil detainees retain their First Amendment Rights.
In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court found that a prison
regulation infringing on an inmate's constitutional rights is valid so long as it is
reasonably related to a legitimate penological interest.
Id. at 89.
The Court also
The allegation regarding access to religious materials will be discussed in the next section.
Regarding the other alleged adverse actions, such as loss of access to a DVD player, it must be
noted that West had recently absconded from commitment when the alleged adverse actions
took place. It is obvious that West would lose privileges and freedoms following an escape,
and it would take a strong factual connection to suggest the loss of those freedoms was
motivated by the filing of a lawsuit as opposed to the escape. Similarly, West’s allegation that
his failure to advance in treatment was a result of the lawsuit, as opposed to the escape, is
nothing more than a self-serving allegation.
West’s claim fails for a number of other reasons. As noted by defendants, there is an open
question as to whether the defendants knew that West had filed a lawsuit at the time of the
alleged adverse actions. Although West had sent his pro se complaint to the court, it was
several months before the court conducted an initial review, filed the complaint, and put the
defendants on notice that a case had been filed. Additionally, West has failed to connect these
adverse actions to any specific defendant.
recognized that deference should be given to the decisions of prison administrators,
especially when those decisions deal with issues of prison safety and security. Id.
In Beaulieu v. Ludeman, 690 F.3d 1017, 1039 (8th Cir. 2012), the Eighth
Circuit applied the Turner framework to civilly committed patients’ free speech claims.
Many courts have applied Turner in analyzing constitutional claims by civilly
committed sexually violent predators.
See, e.g., Thompson v. Vilsack, 328 F. Supp.
2d 974 (S.D. Iowa 2004) (applying Turner to a claim that co-payment for Kosher meals
violated civilly committed sexual predator's First Amendment rights). This court has
also used a modified Turner test on a number of occasions in analyzing free exercise
claims arising out of CCUSO. See, e.g. Altman, 2015 WL 1383824.
In a typical prisoner free-exercise case, the plaintiff must allege a substantial
burden on his free exercise of religion. Patel v. U.S. Bureau of Prisons, 515 F.3d 807,
813 (8th Cir. 2008). Substantially burdening one's free exercise of religion means the
must significantly inhibit or constrain conduct or expression that manifests
some central tenet of a person's individual religious beliefs; must
meaningfully curtail a person's ability to express adherence to his or her
faith; or must deny a person reasonable opportunities to engage in those
activities that are fundamental to a person's religion.
Murphy v. Mo. Dep't of Corr., 372 F.3d 979, 988 (8th Cir. 2004)(quotation and
“A discussion of constitutional violations in a prison setting requires a two-step
analysis. First, [the court] must determine whether the liberty interest asserted by an
inmate is an interest protected by the Constitution. If [the court] find[s] a protected
liberty interest exists, [the court] must balance this interest against a State's interest in
prison safety and security.” Goff v. Harper, 235 F.3d 410, 413-14 (8th Cir. 2000)
judgment reinstated, 96-1018, 2002 WL 34541628 (8th Cir. Jan. 15, 2002). Under
Turner, a prison regulation that impinges on inmates' constitutional rights ... is valid if
it is reasonably related to legitimate penological interests. Turner, 482 U.S. at 89. As
modified for use in the context of civil commitment, the claim must be considered in
light of appropriate therapeutic interests as well as relevant safety and security
“Turner employs a four-factor test to resolve this inquiry: (1) whether there is a
rational relationship between the regulation and the legitimate government interest
advanced; (2) whether the inmates have available alternative means of exercising the
right; (3) the impact of the accommodation on prison staff, other inmates, and the
allocation of prison resources generally; and (4) whether there are ready alternatives to
the regulation. Freeman v. Texas Dept. of Criminal Justice, 369 F.3d 854, 860 (5th
Cir. 2004) (internal citations omitted).
Defendants argue there is a rational relationship between the regulation at issue
and the legitimate government interest advanced:
Mr. West absconded. He was the first and only CCUSO patient to
abscond. He left the state and required significant assistance from law
enforcement to return him to CCUSO. When he returned to CCUSO, his
contact was restricted because of the security risk. For several months,
he did not ask to speak with his Pastor. Even crediting his version of
events with Nate Reinert, he asked to call his Pastor once. It was denied.
The incident was investigated and clarified with staff that Mr. West can
contact legal and spiritual advisors.
CCUSO offers a nondenominational service. Pastor Stout offers a
live service, and the program offers DVD recordings of services when
Pastor Stout is not available. CCUSO offers special religious services
when it can. Pastor Grimes completed a declaration that he is willing to
minister to Mr. West, including visiting with him at CCUSO as his
schedule permits. Pastor Grimes has been screened and is an approved
visitor. Pastor Stout testified that he’s talked with several Pentecostal
pastors and they don’t want to come. In addition to pastoral services, the
CCUSO library contains religious materials. Patients may also purchase
religious materials. Mr. West’s journal – both versions – contain
numerous references to Bible study that he is able to undertake on his
Doc. No. 25-2 at 15-16. Defendants go on to argue:
Plaintiff could attend Chapel. He could view DVDs. He could attend
Bible study. He could check out religious materials from the Library. He
could purchase his own religious materials. He could follow up with a
kite or grievance if he is concerned he’s being denied contact with his
. . . Defendants offer religious services. Special services are
brought in as available to meet the needs of the many different faiths at
CCUSO. A nondenominational service is offered to meet the needs of the
many patients at CCUSO. . . .
. . . Plaintiff has many options for religious exercise available to
him. Pastor Bob offers live service, has more than 300 DVD services
from other Pastors available, and has worked to find a Pentecostal pastor
willing to minister to CCUSO patients – to no avail. Although Pastor
Grimes indicated he may be willing to provide some ministry services at
CCUSO, that is up to Pastor Grimes and his demanding schedule.
Plaintiff has no constitutional right to the pastor of his choice or the
congregation of his choice. See, e.g., Myslicki v. Gage, 2012 WL
728035 (W.D. Tex. Mar. 6, 2012) (slip copy) (holding inmate on
supervised release failed to state actionable claim under RLUIPA for
alleging inability to attend church of choice); Calvin v. Caruso, 605 F.3d
282, 291-92 (6th Cir. 2010) (holding institutions are not required to
provide a place of worship for every faith); Baze v. Parker, No. 11-cvP83, 2013 WL 3894961, at *4 (W.D. Ky. July 26, 2013) (holding inmate
has no Constitutional right to the pastor of his choice); Burridge v.
McFaul, No. 97-3950, 199 WL 266246, at *2 (6th Cir. Ap. 23, 1999)
(citing Thompson v. Kentucky, 712 F.2s 1078, 1080 (6th Cir. 1983);
Payne v. Lucas, No. 6:12-1904-DCN-KFM, 2012 WL 4847124, at *2
(D.S.C. July 19, 2012) (finding prisoners are not entitled to have the
clergyman of their choice provided at correctional facilities); Farnsworth
v. Baxter, No. 03-2950-B/V, 2005 WL 2373417, at * 5 (W.D. Tenn.
Sept. 27, 2005) (same). The Eighth Circuit has found no violation of
Free Exercise when confined persons complained that no volunteers could
be found to lead the desired service. Strutton v. Meade, No. 05-cv-2022,
2010 WL 1253715 (E.D. Mo. Mar. 31, 2010) (unpublished), aff’d 668
F.3d 549 (8th Cir. 2012) (SVP institution’s decision to deny a second
Wiccan service for lack of a volunteer does not state a claim). CCUSO is
providing a variety of means of religious expression.
Doc. No. 25-2 at 16-17.
Plaintiff has been denied the ability to practice his Pentecostal
religion at CCUSO. Plaintiff was enjoying regular meetings with his
pastor, regular phone calls and Bible study while in transition but was
completely cutoff once he returned. There is no dispute about Mr. West’s
sincerely held religious belief. To establish a claim of denial of
constitutional right to the free exercise of religion, the plaintiff must show
both a sincerely held religious belief and the infringement upon that
belief. Hayes v. Long, 72 F.3d 70, 73 (8th Cir. 1995). While his travel to
church was understandably curtailed, there was no justification for
denying religious books and study materials and phone contact with his
The Defendants claim their in-house chaplain should be a sufficient
substitute for Mr. West. Yet Pastor Stout is not having regular
nondenominational services and Plaintiff is not able to attend Pentecostal
services. Defendants argue that he should be satisfied with watching
DVD’s, yet his DVD player was confiscated along with his religious
DVDs and not returned until after this suit was commenced. In the past,
Pentecostal ministers had refused to come to CCUSO but Pastor Grimes
had been willing to meet with Plaintiff on a regular basis, both inside
CCUSO and while Mr. West was able to travel to his church. Pastor
Grimes is willing to meet with Mr. West at CCUSO and will consider
holding services there. The Defendants finally allowed Plaintiff to make
phone calls to Pastor Grimes after this lawsuit commenced. There has
been no sufficient substitute provided and Mr. West’s right to free
exercise of his religion remains infringed.
Doc. No. 26-1 at 7-8.
As noted above, this court has twice previously had the opportunity to consider
the religious services available at CCUSO. See Altman, 2015 WL 1383824, at *7, and
Mead, 2014 WL 2557673, at *6.
The second of those cases also dealt with a
Pentecostal CCUSO patient who complained that CCUSO employees interfered with his
free exercise of religion.
In that case, this court discussed the difficulty CCUSO
employees have had in finding ministers willing to come to CCUSO and concluded that,
“[CCUSO employees] do not have the power to compel a minister to come to
CCUSO.” Mead, 2014 WL 2557673, at *6. The court granted summary judgment in
favor of the defendants, concluding:
Mr. Mead has failed to allege a constitutional violation under the Turner
framework: 1) There is a rational relationship between CCUSO's
religious regulations and a legitimate government interest. The Defendants
provide various non-denominational religious services and provide
specific Pentecostal material and videos to Mr. Mead. The Defendants do
not have the authority to compel a Pentecostal minister to come to
CCUSO. But CCUSO has made Pastor Greenwalt aware that he is
welcome to minister to Mr. Mead if he chooses to do so. 2) Mr. Mead is
allowed alternate means to exercise his faith. As mentioned above, the
Defendants have provided Pentecostal videos. Additionally, Mr. Mead is
allowed to attend other, non-denominational Christian services, which
Pastor Greenwalt testified are similar to Pentecostal services. 3) The
Defendants are willing to let a Pentecostal minister pastor to Mr. Mead.
None appear to be willing. The Defendants are attempting to provide Mr.
Mead an opportunity to exercise his religion that is within CCUSO's
resources. 4) There is no ready alternative to this situation. The
Defendants provide Mr. Mead access to Pentecostal videos and other
Pentecostal material. They have told Pastor Greenwalt he can minister to
Mr. Mead. They have tried to get other Pentecostal ministers to come to
CCUSO. But, all they can do is ask. The Defendants do not have the
power to compel a minister to come to CCUSO. In short, the Defendants
are doing all that they can. As long as they continue to do so, Mr. Mead
does not have a free exercise claim under the Turner framework discussed
above. Accordingly, the Court must grant the Defendants' Motion for
Summary Judgment, Docket No. 31.
The factual record in this case demonstrates that the situation regarding access to
religious services at CCUSO remains largely the same, and I agree with the analysis
and conclusions set forth in Mead. Accordingly, to the extent West alleges a general
denial of his right to free exercise because CCUSO does not provide specific
Pentecostal services, he has failed to generate a disputed issue of material fact for the
reasons set forth in Mead. Similarly, to the extent West argues he has been denied a
right to free exercise because he is not allowed to attend services outside of the CCUSO
facility, that claim is also denied for the reasons set out in Mead and Altman.
Of course, West’s situation is somewhat different than Mead’s in that West had
been on transitional release and, therefore, had been allowed to attend religious services
outside the CCUSO facility prior to his escape. West had also developed a relationship
with Pastor Grimes. West specifically alleges that following his return to CCUSO after
the escape, he was restricted from contacting Grimes and was restricted from watching
his religious DVDs.
Applying the Turner framework to these specific allegations, it is clear that West
has failed to allege sufficient facts to allow his claim to proceed. First, there is a
rational relationship between CCUSO's religious regulations and a legitimate
government interest. Defendants provide various non-denominational religious services
and provide specific Pentecostal material to patients such as West. Defendants do not
have the authority to compel a Pentecostal minister to come to CCUSO. But CCUSO
has made Pastors Greenwalt and Grimes aware that they are welcome to minister to
West if they so choose.7 Similarly, defendants’ decision to restrict West’s privileges,
including access to items such as a personal DVD player, are rationally related to a
Grimes stated that the only reason he thought he could not come to CCUSO was because
West told Grimes that West was barred from having visitors. Doc. No. 25-4 at 156-57.
Grimes otherwise gave no indication that he had been prohibited from contacting West and
acknowledged exchanging letters with West. Id.
legitimate government/therapeutic interest. West absconded from treatment. Demoting
him from transitional release and subjecting him to the more restrictive rules of the
earlier treatment stages is a rational response to that escape.
Second, West was allowed an alternate means to exercise his faith. Although,
for a time, he was not allowed to access all the personal property he had amassed while
on transitional release, he still had access to the religious materials that all secure-unit
CCUSO patients were permitted to access. As noted above, this included Pentecostal
videos. West is also allowed to attend other, non-denominational Christian services
officiated by Pastor Stout.
While it is true that West was briefly prohibited from
calling Grimes, West has cited no authorities supporting his assertion that he has a
constitutional right to call his preferred religious officiant. Regardless, the situation
was quickly clarified such that West was allowed to make religious calls. As discussed
above, a brief, accidental denial of a constitutional right is not sufficient to prevail on a
Section 1983 claim under current Eighth Circuit precedent.
Third, defendants are willing to allow Pentecostal ministers to communicate with
West and conduct services at CCUSO. Other than West’s unsupported, self-serving
allegations, the remainder of the record demonstrates that defendants are making
reasonable attempts to facilitate West’s religious exercise in a manner that is
commiserate with his treatment level.
Fourth, there is no ready alternative to this situation. Other than briefly denying
West the use of the phone, defendants have provided West an opportunity to exercise
his faith in a manner consistent with his security and treatment levels. Accordingly,
defendants are entitled to summary judgment on this issue.
For the reasons set forth herein, defendants’ motion (Doc. No. 25) for summary
judgment is granted with regard to all claims. This action (C14-4102 and C14-4125) is
hereby dismissed with prejudice. Judgment shall enter against the plaintiff.
IT IS SO ORDERED.
DATED this 17th day of August, 2017.
Leonard T. Strand, Chief Judge
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