Williams v. Benson et al

Filing 7

INITIAL REVIEW ORDER (15cv04043-DEO) - 1 MOTION for Leave to Proceed in forma pauperis filed by Harold D Williams in 15cv4043 is granted. The complaint will be filed, and no filing fee assessed. The Complaint shall be served by the Clerk accordi ng to the attached service forms. The above captioned case will be consolidated with 15cv4035-DEO. The combined case will proceed under case number 15cv4035-DEO. Defendants CCUO Treatment Team a CCUSO Clinical Team are dismissed, and Defendant Bra d Wittrock will be added as a defendant in 15cv4035-DEO. Mr. Williams' request for the appointment of counsel is denied as moot. Finally, the previous deadline for filing an amended complaint (15cv4035-DEO) is vacated, and appointed counsel wi ll have 45 days from the date of this Order to file an amended complaint. Signed by Senior Judge Donald E OBrien on 6/11/15. (copy w/nef mailed to plaintiff; sent via certified mail to defendants and Atty Kraemer) and Associated Cases: 5:15-cv-04035-DEO, 5:15-cv-04043-DEO (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

HAROLD D. WILLIAMS
Plaintiff,

No. 15-CV-4043-DEO

vs.

INITIAL REVIEW ORDER

BRAD WITTROCK, CCUSO
TREATMENT TEAM, AND CCUSO
CLINICAL TEAM,
Defendants.
____________________
I.

INTRODUCTION AND BACKGROUND
This matter is currently before the Court on Plaintiff

Harold Williams’ [hereinafter Mr. Williams] Motion for Leave
to Proceed in Forma Pauperis (Docket No. 1), Motion for
Appointment of Counsel and 42 U.S.C. Section 1983 Complaint
(Docket No. 1, Att. 1).
committed

patient

at

The Plaintiff is an involuntarily

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 June 10, 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

2
Iowa Department of Human Services Offer #401-HHS-014:
CCUSO,
http://www.dhs.state.ia.us/docs/11w-401-HHS-014CCUSO.pdf, last visited June 10, 2015.

2

are not prisoners and are not subject to 28 U.S.C. § 1915(a)(b).

See Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir.

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 filed a ‘Financial Affidavit’

stating he has no assets.

Also, Mr. Williams has previously

applied for and received in forma pauperis status.
example, 13-CV-4052-DEO, Docket Nos. 1 and 2.

See, for

Accordingly,

the Court will consider Mr. Williams’ ‘Financial Affidavit,’
Docket No. 1, to be a Motion to Proceed In Forma Pauperis.

As

such, Mr. Williams’ application substantially meets the above
requirements. Accordingly, Mr. Williams’ Motion to Proceed in
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

Forma Pauperis is granted.
serve

(according

to

Plaintiffs’ Complaint.

The Clerk of Court shall file and

the

attached

service

forms)

the

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
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
5

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
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

6

be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress . . . .
IV.

ISSUE
Mr.

Williams

alleges

that

the

Defendants

have

unconstitutionally interfered in his ability to communicate
with individuals outside of CCUSO. Specifically, Mr. Williams
alleges that CCUSO has refused to allow him to contact, via
mail and telephone, former CCUSO patient Ryan Hoffert.
V.

ANALYSIS
A.

Non-persons

Mr. Williams named both CCUSO Treatment Team and CCUSO
Clinical Team as Defendants in this case.

Both of those

Defendants are agencies of the State of Iowa.

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 either the CCUSO Treatment Team or the CCUSO Clinical
Team and those Defendants will be dismissed from the case.
7

B.
Mr.

Mail Claim
Williams’

unconstitutionally
certain

individuals

allegation
denied
no

the

longer

is
right

that
to

committed

he

has

communicate
to

CCUSO.

been
with
The

Plaintiff also argues that the Defendants are restricting
their access to the mail.

At the outset, the Court notes that

the Defendants are within in their right to monitor and
restrict patients’ mail access for therapy and safety reasons.
As has been stated:
[n]either the Supreme Court nor this court
has determined the extent to which the
Constitution affords liberty interests to
indefinitely committed dangerous persons
under the Mathews balancing test.
Since
[the Plaintiff] has been civilly committed
to state custody as a dangerous person, his
liberty interests are considerably less
than those held by members of free society.
See Wilkinson v. Austin, 125 S. Ct. 2384,
2395-96 (2005); Morrissey v. Brewer, 408
U.S. 471, 481 (1972).
As compared to a
prison inmate, however, [the plaintiff is]
entitled to more considerate treatment and
conditions of confinement.
Youngberg v.
Romeo, 457 U.S. 307, 322 (1982).
Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006).
The Court has also stated that claims by civilly committed
individuals

“should

be

evaluated

8

under

the

...

standard

usually applied to ... pretrial detainees.”
567 F.3d 944, 948 (8th Cir. 2009).

Serna v. Goodno,

“A pretrial detainee

constitutionally need not, and, as a practical matter, cannot
be provided with a normal civilian life.”
406 F. Supp. 287 (M.D.Pa. 1975).

Padgett v. Stein,

In the context of mail

handling cases, the legal standard is the same whether a CCUSO
resident is considered a “mental patient” or a prisoner.

See

Willis v. Smith, Not Reported in F. Supp. 2d, 2005 WL 550528,
10 (N.D. Iowa 2005) citing Turner v. Safley, 482 U.S. 78, 89
(1987); Davis v. Balson, 461 F. Supp. 842, 864 (N.D. Ohio
1978).
As a general rule, those detained by the government have
a limited liberty interest in their mail under the First and
Fourteenth Amendments.

Jones v. Brown, 461 F.3d 353, 358 (3d

Cir. 2006), cert. denied, 549 U.S. 1286 (2007).
constitutional
restricted

for

right

to

send

legitimate

and

receive

penological

However, the
mail

interests.

may

be
See

Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); Turner v.
Safley, 482 U.S. 78, 89 (1987).

In Turner, the Supreme Court

of the United States found that a prison regulation infringing
on an inmate’s constitutional rights is valid so long as it is
9

reasonably related to a legitimate penological interest.

Id.

at 89.
Additionally, Courts have recognized that similar to the
security interests present in the prison context, facilities
housing

civilly

committed

predators

providing those persons therapy.

have

an

interest

in

Consequently, they have an

interest in screening the mail to assure that the objectives
of therapy can be carried out.

As one Court noted:

[the residents] are convicted sexual
predators, which makes safety at [their
facility] a very important concern.
The
staff clearly must determine if any items
coming through the mail pose a threat to
the safety of the staff or the other
residents. They also must decide if any of
the materials passing through the mail
could be detrimental to a resident’s
therapy.
Belton v. Singer et al., 2011 WL 2690595, 11 (D. N.J. 2011).
Accordingly, instead of analyzing these claims under the
‘legitimate penological interest’ standard, they should be
analyzied via a legitimate therapy standard.

As stated by

Judge Frank in Minnesota:
[e]qually, if not more important, however,
are
the
therapeutic
objectives
of
Plaintiffs’ commitment to MSOP...
Thus,
the Court must consider challenges to MSOP
10

restrictions that allegedly inhibit First
Amendment interests in light of the
legitimate policies and goals of the
commitment system, to whose custody and
care Plaintiffs have been committed.
Karsjens v. Jesson, 6 F. Supp. 3d 916, 939 (D. Minn. 2014).6
As was discussed above, at this early stage of the
proceeding, the Court must accept the Plaintiff’s allegations
as true, and can only dismiss the action if the claim,
accepted as true, fails to make a case for which relief could
possibly be granted.

However, the Court notes that both the

telephone use issue, and the mail issue were previously
litigated

in

05-CV-4065-DEO.
case.

a

class

action

filed

by

CCUSO

patients,

The Plaintiff was a class members in that

In the settlement agreement in 05-CV-4065-DEO, the

parties agreed that:
[i]f mail is rejected in accordance with
CCUSO’s policy, the recipient and sender
will receive notice of mail rejection.
Either the recipient or the sender may
appeal the rejection by completing a
grievance and submitting to Dr. Smith in
accordance with CCUSO policies.
05-CV-4065-DEO, Docket No. 141, p. 5.

6

Under the terms of the

The phone use issue, and the mail use issue are largely
overlapping First Amendment Claims.
11

settlement agreement, it is clear that CCUSO can reject mail
in accordance with CCUSO policy. The settlement only requires
that CCUSO notify both the recipient and the sender when mail
is rejected or restricted, and allow the patient to file an
appeal.

Mr. Williams does not seem to allege that the

Defendants have violated the terms of the agreement.

Rather,

Mr. Williams’ primary claim seems to be that the appeal
process is insufficient.

It is unclear that Mr. Williams’

mail claim can survive in light of the settlement agreement.
In fact, this Court has recently denied a similar claim raised
by other CCUSO patients for that very reason. See 14-CV-4042DEO, Docket No. 14.
VI.

CASE CONSOLIDATION AND APPOINTMENT OF COUNSEL
The Court notes that it recently allowed a different case

filed by Mr. Williams to proceed past the initial review
stage.
Court

See 15-CV-4035-DEO, Docket No. 2.
appointed

counsel

45

complaint.

days
Id.

Mr.
from

Williams
May

26,

counsel
2015,

In that case, the

and
to

gave
file

appointed
an

amended

The Court is persuaded that in the interest

of judicial economy, the above captioned case should be
consolidated with 15-CV-4035-DEO.
12

The combined case will

continue under case number 15-CV-4035-DEO, and Defendant Brad
Wittrock will be added as a Defendant in that case.
As noted above, the Court appointed attorney Hannah
Vellinga to represent Mr. Williams in 15-CV-4035-DEO, and gave
Ms. Vellinga 45 days from May 26, 2015, to file an amended
complaint.

That 45 day deadline is hereby vacated.

Instead,

the Court will give Ms. Vellinga 45 days from the date of this
Order to file a combined amended complaint incorporating all
of Mr. Williams’ legally viable claims.

However, the Court

notes that, in light of the previous settlement agreement, his
claims related mail/telephone access have high procedural
barriers to cross if they are to survive summary dismissal.
In light of this case consolidation, Mr. Williams’ request for
the appointment of counsel is denied as moot.
VII.

CONCLUSION
For the reason set out above, the Plaintiff’s application

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

The

complaint will be filed, and no filing fee will be assessed.
The Complaint shall be served by the Clerk according to the
attached service forms.

The above captioned case will be

consolidated with 15-CV-4035-DEO.
13

The combined case will

proceed under case number 15-CV-4035-DEO.

Defendants CCUSO

Treatment Team and CCUSO Clinical Team are dismissed as set
out above, and Defendant Brad Wittrock will be added as a
Defendant in 15-CV-4035-DEO.

Mr. Williams’ request for the

appointment of counsel is denied as moot.

Finally, the

previous deadline for filing an amended complaint (15-CV-4035DEO) is vacated, and appointed counsel will have 45 days from
the date of this Order to file an amended complaint.
IT IS SO ORDERED this 11th day of June, 2015.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

14

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

No. 15-CV-4043-DEO

v.
BRAD WITTROCK,
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: 6/11/15
.
I affirm that this notice and request for waiver of service of summons is being sent to you on behalf
June 11
of the plaintiff, this
, 2015.
/s/ djs, Deputy Clerk

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

15

ACKNOWLEDGMENT OF RECEIPT OF
NOTICE OF LAWSUIT,
and WAIVER OF SERVICE OF SUMMONS
06/11/15
(**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
HAROLD WILLIAMS,
Plaintiff,

No. 15-CV-4043-DEO

v.
BRAD WITTROCK,
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
6/11/15
, (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)

16

Address Form
06/11/15
Date: _____________________

Case Number: 15-CV-4043-DEO
To:
RE:

Clerk of Court
Service on Named Defendants
Below, please find the known (or likely) addresses for the following
persons/entities who have been named as defendants to this action:

Defendant:

ALL DEFENDANTS
c/o Civil Commitment Unit for Sexual Offenders
1251 West Cedar Loop
Cherokee, Iowa 51012
Gretchen Witte Kraemer
Department of Justice
Regents and Human Services Division
Hoover Building
Des Moines, Iowa 50319-0109

17