Hutchcroft v. Palmer et al
INITIAL REVIEW ORDER - granting 1 MOTION for Leave to Proceed in forma pauperis and 4 SUPPLEMENTAL PRO SE MOTION for Leave to Proceed in forma pauperis filed by Bradley Joseph Hutchcroft. The Clerk is directed to file his amended complaint (Doc No 4-1) without the prepayment of fees. The State of Iowa is dismissed as a defendant in this case. Ruling is reserved on 2 and 5 motions to appoint counsel. The Clerk is directed to facilitate service of this order and the amended complaint on the named defendants. Signed by Chief Judge Leonard T Strand on 3/29/17. (copy w/nef mailed to pro se filer, mailed via certified mail to defendants and IA Attorney General) (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CHARLES PALMER, CORY
TURNER, SHANNON SANDERS,
BRAD WITTROCK, CLINT
FREDERIKSEN, MIKE MCDONALD,
TAHL STIEG and THE STATE OF
This matter is before me on plaintiff Bradley Hutchcroft’s application to proceed
in forma pauperis, pro se 42 U.S.C. § 1983 complaint and pro se motion to appoint
counsel. Doc. Nos. 1, 1-1, and 2. Also before me are Hutchcroft’s supplemental motion
to proceed in forma pauperis (Doc. No. 4), supplemental complaint (Doc. No. 4-1) and
renewed motion to appoint counsel (Doc. No. 5). Hutchcroft is a civil detainee at the
Civil Commitment Unit for Sexual Offenders (CCUSO) located in Cherokee, Iowa.
IN FORMA PAUPERIS STANDARD
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). Accordingly, plaintiffs who apply for and
receive in forma pauperis status may file their cases for free. However, under the Prison
Litigation Reform Act (PLRA), 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 any facility” for “violations of criminal law . . . .” 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.
CCUSO is not a prison facility. Instead, it “provides a secure, long-term, and
highly-structured setting to treat sexually violent predators who have served their prison
terms, but who, in a separate civil trial, have been found likely to commit further violent
sexual offenses.”1 Thus, the Iowa Code specifies that the persons confined at CCUSO
are not prisoners, but civilly-committed patients who suffer from a “mental abnormality.”
Iowa Code ch. 229A (generally); Iowa Code § 229A.2(11). Numerous courts have
considered the question of whether a patient committed to a state hospital is a prisoner
under 28 U.S.C. § 1915. The Eighth Circuit Court of Appeals held that civilly-committed
individuals are not prisoners and, therefore, are not subject to 28 U.S.C. § 1915(a)-(b).
Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir. 2001). Other courts have reached
the same conclusion. See 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:
However, [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). 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]. See ... Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir.
2000) (concluding that a person detained under state’s civil sexually 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.); Troville v. Venz, 303 F.3d 1256, 1260
(11th Cir. 2002) (“We agree with Page, Kolocotronis, and the other opinions that have
Civil Commitment Unit for Sexual Offenders, Iowa Department of Human Resources,
http://dhs.iowa.gov/mhds/mental/in-patient/ccuso (January 9, 2017).
held the PLRA’s straightforward definition of “prisoner” to apply only to persons
incarcerated as punishment for a criminal conviction.”); Merryfield v. Jordan, 584 F.3d
923, 927 (10th Cir. 2009) (“Accordingly, we hold that the fee payment provisions of §
1915 applicable to a ‘prisoner,’ as defined by § 1915(h), do not apply to those civilly
committed under the KSVPA.”).
Based on those cases, the prisoner pay schedule
contained in the PLRA is not applicable to the plaintiff’s case. If a civilly-committed
plaintiff is entitled to in forma pauperis status, that plaintiff may proceed without the
payment of fees.
To qualify for in forma pauperis status, a plaintiff must provide an affidavit 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 or give security therefor.
28 U.S.C. § 1915(a)(1).2
After considering Hutchcroft’s original motion to proceed in forma pauperis (Doc.
No. 1), I entered an order finding that his motion failed to comply with the above stated
rules. See Doc. No. 3. I further found that Hutchcroft’s proposed complaint failed to
state a particular, actionable, claim. Id. Accordingly, I directed Hutchcroft to file an
amended motion that complied with the rules.
Hutchcroft has now done so.
Specifically, Hutchcroft’s supplemental pro se motion (Doc. No. 4) to proceed in forma
pauperis complies with all the applicable rules. It includes a statement of his assets, is
notarized, and clearly shows that Hutchcroft lacks the financial resources to pay the filing
fees required for this type of case. Accordingly, his motions to proceed in forma pauperis
(Doc. Nos. 1, 4) are granted and I will direct the clerk of court to file his amended
complaint (Doc. No. 4-1). No filing fee will be assessed. However, once any portion
of a filing fee is waived, I must dismiss the case if the allegations of poverty prove untrue
An affidavit is a “voluntary declaration of facts written down and sworn to by the declarant
before an officer authorized to administer oaths.” Affidavit, Black’s Law Dictionary (9th ed.
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. 28 U.S.C. § 1915(e)(2).
42 U.S.C. § 1983 INITIAL REVIEW STANDARD
Section 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 . . . .
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 . . . .” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). In other words, the claim to relief must be “plausible on its
face.” Id. at 570.
A claim is 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, 556 U.S. 662, 678 (2009). If 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 679 (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 678.
Thus, to survive initial review, the plaintiff must allege a plausible, non-frivolous, claim.
In his amended complaint, Hutchcroft makes several broad claims. First, he
asserts that “[p]laintiff has been denied his right to due process based upon a removal
from Transitional Release Program without being provided a proper hearing he would be
allowed to present facts which were contrary to the allegations presented by the
Administration.” Doc. No. 4-1 at 12. Next, Hutchcroft alleges that he has “been denied
his right to be free from illegal search and seizure.” Id. at 13. He then asserts that he
has been denied “his right to be free from intrusion by the respondents into his legal
communication.” Id. He vaguely alleges retaliation and that his property rights have
been denied. Id. at 12-14. Finally, Hutchcroft makes various contentions that his right
to counsel has been infringed.
The amended complaint then sets forth various factual allegations concerning these
claims. See Doc. No. 4-1 at 19-28. Hutchcroft alleges that his cell phone was confiscated
and searched by the defendants, contending that they asked Hutchcroft about contacts in
his phone and then deleted various text messages recorded on the phone. Hutchcroft
further alleges that CCUSO staff improperly communicated with contacts listed in his
cellphone and inquired about their relationship to Hutchcroft. Hutchcroft concedes that
he consented to having CCUSO employees contact the individuals listed in his phone, but
contends the CCUSO employees exceeded the scope of his consent. Hutchcroft then
describes numerous instances of alleged misconduct by defendant Fredrickson.
Hutchcroft alleges that Fredrickson’s misconduct and malfeasance resulted in Hutchcroft
being removed from the transitional release treatment level at CCUSO. Hutchcroft also
alleges that Fredrickson improperly made Hutchcroft pay for Hutchcroft’s own GPS
monitoring. Hutchcroft further alleges that CCUSO has recorded his meetings with his
attorney and that he is forced to follow the CCUSO mail policy regarding legal mail.
Finally, Hutchcroft alleges that he is only allowed to work on his legal case during certain
time periods. I will consider each of Hutchcroft’s claims in turn.
Transitional Release Hearing
Hutchcroft contends that his due process rights have been infringed by being
removed from transitional release without a hearing. However, Hutchcroft’s petition is
confusing on this point. In some places he seems to indicate that the hearing he received
was not fair, while in other places he states he did not have a hearing. Under Iowa law,
the decision to move a CCUSO patient to transitional release is generally reserved for the
Iowa state courts.
Iowa Code § 229A.8A.
Even construing Hutchcroft’s petition
broadly, I find he has failed to allege that he was denied the annual court hearing required
by the Iowa Code. See Iowa Code § 229A.8. At most, Hutchcroft has alleged that
CCUSO used certain evidence against him in the proceedings during which his
transitional release was revoked and that he was not given an opportunity to challenge
that evidence. This court has rejected the same argument when presented by another
CCUSO patient, stating:
the use of behavioral reports in considering whether a patient should
progress through the treatment phases towards transitional release does not
rise to the type of liberty interest protected by and requiring a [Wolff v.
McDonnell, 418 U.S. 539 (1974)] style hearing. . . Accordingly, Mr. Taft
has failed to articulate a valid liberty interest that he is being denied by
CCUSO's behavior report system. Because Mr. Taft has failed to articulate
a valid constitutional claim, and there are no disputed factual issues, the
Defendants are entitled to Judgment as a matter of law and their Motion for
Summary Judgment must be granted.
Taft v. Ryan, No. 11-CV-4021-DEO, 2014 WL 1338113, at *5-8 (N.D. Iowa Mar. 28,
2014). I agree. Accordingly, Hutchcroft has failed to state a claim upon which relief
can be granted. That portion of his pro se amended complaint must be dismissed.
Cell Phone Confiscation
Hutchcroft alleges that CCUSO confiscated his cell phone and searched it.
However, Hutchcroft has failed to allege why or how CCUSO’s search of his cell phone
constitutes a constitutional violation. In another case, I recently found that CCUSO has
an interest in monitoring patients’ phone access to prohibit counter-therapeutic contacts:
CCUSO has an interest in the safety of patients and the public as well as an
interest in maintaining a therapeutic treatment environment for patients.
Safety and a therapeutic treatment environment are legitimate interests. See
Dawson v. Scurr, 986 F.2d 257, 260 (8th Cir. 1993). The Eighth Circuit
has approved as rational both (a) a phone policy that does not allow
incoming calls and (b) a policy that restricts calls to a preapproved list of
three people. See Beaulieu, 690 F.3d at 1037-41; Benzel v. Grammer, 869
F.2d 1105, 1108-09 (8th Cir. 1989). Restricting phone calls to individuals
on a preapproved list is a rational way to maintain security and a therapeutic
Williams v. Benson, No. C15-4035-LTS, 2016 WL 3636035, at *9 (N.D. Iowa 2016).
CCUSO is a secure facility and the CCUSO patients have been committed to the custody
of the state. Accordingly, CCUSO can generally search and secure the facility and
examine potentially counter-therapeutic materials. See Altman v. Palmer, No. C13-4066DEO, 2015 WL 1383824, at *9 (N.D. Iowa 2015) (discussing the confiscation of a
counter-therapeutic movie); see also Taft et al., v. Loescher, C12-4079, Doc. No. 5
(N.D. Iowa 2012) (dismissing claim where CCUSO patient complained regarding the
confiscation of counter-therapeutic mail). In light of my previous ruling in Williams
regarding CCUSO’s ability to monitor phone use, and even after giving Hutchcroft’s
claim the great deference owed to a complaint at this early stage of a case, I find that he
has failed to state a claim for which relief can be granted. Accordingly, that portion of
Hutchcroft’s complaint is dismissed.3
I also dismiss Hutchcroft’s claim based on allegations that the defendants communicated with
individuals listed in his phone. First, Hutchcroft has failed to couch that claim in terms of a
protected constitutional right. Second, as I held in Williams, there is a presumption that CCUSO
can monitor those with whom its patients communicate:
To show retaliation, a 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. Haynes v. Stephenson, 588 F.3d 1152, 1155 (8th Cir.
Hutchcroft has alleged that defendant Fredrickson has treated him poorly.
However, Hutchcroft has not alleged that Fredrickson’s treatment was in response to
Hutchcroft’s exercise of a clearly established constitutional right. Accordingly, he has
failed to state a claim for retaliation and his complaint related to this issue must be denied.
4. Mail and Legal Communications
In Williams, I discussed access to mail at the CCUSO facility. To the extent
Hutchcroft raises claims covered by the previous settlement agreement between CCUSO
patients and CCUSO defendants, those claims are barred. See Williams, 2016 WL
3636035, at *8. Hutchcroft also alleges that CCUSO has restricted his access to legal
materials to certain time periods – specifically that he was not allowed to fax and email
at certain times. Hutchcroft has failed to allege how this alleged restriction violates a
protected constitutional right. Accordingly, that claim will be denied.
Inherent in the notion of civil commitment is the assumption that the
patients are cut-off from some contact with the outside world. Civil commitment,
segregating these patients from the rest of society, is constitutional as a general
principal. See Kansas v. Hendricks, 521 U.S. 346 (1997). As discussed above,
it is entirely appropriate for CCUSO to maintain an approved contact list for each
patient and to vet proposed new contacts before allowing telephone calls to occur.
It was not unreasonable for CCUSO to require information about [a potential
contact] as a condition of approving her. This incident did not amount to a
deprivation of Williams’ constitutional rights.
Williams, 2016 WL 3636035, at *10.
However, Hutchcroft also alleges his attorney meetings at CCUSO have been
monitored and recording by the defendants. This raises a more complex question. In
the context of a prisoner claim one court summarized the uncertain state of the law:
The legality of monitoring inmate calls to an attorney is not settled. It has
been held that the presence of a custodial officer when prisoners place or
receive a phone call is constitutionally objectionable. See Moore v. Janing,
427 F. Supp. 567, 576 (D. Neb. 1976). It has also been held that prison
officials may tape a prisoner's telephone conversations with an attorney if
such taping does not substantially affect the prisoner's right to confer with
counsel. Tucker v. Randall, 948 F.2d 388, 391 (7th Cir. 1991). It is settled
that prisoners do not forfeit their constitutional guarantee under the
Fourteenth Amendment to “adequate, effective, and meaningful” access to
the courts. Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52
L.Ed.2d 72 (1977). Access to counsel is not only a right under the Sixth
Amendment, but is one means of insuring access to the courts. Mann, 828
F.Supp. at 902. However, the Sixth Amendment does not require in all
instances full and unfettered contact between an inmate and counsel. See
Mann, 46 F.3d at 1060; see also McMaster v. Pung, 984 F.2d 948, 953
(8th Cir. 1993). The choice among various methods of guaranteeing access
to the courts lies with prison administrators, not inmates or the courts.
Ishaaq v. Compton, 900 F.Supp. 935, 941 (W.D.Tenn.1995).
Arney v. Simmons, 26 F. Supp. 2d 1288, 1296 (D. Kan. 1998); see also Moran v.
Burbine, 475 U.S. 412, 468, (1986) (Stevens, J. dissenting) (noting that monitoring of
phone calls between prisoners and their attorneys violates fundamental fairness).
At this stage of the case, I must accept Hutchcroft’s allegations as true. Taken as
true, Hutchcroft’s allegations concerning the monitoring and recording of his meetings
with his attorney may, if true, amount to a violation of his due process rights, his right
to be free from unreasonable searches or his right to freely communicate with counsel.
Hutchcroft’s allegations contain both a question of fact and question of law that cannot
be summarily decided. Accordingly, I must allow this claim to proceed.4
Although, there is no credibility determination to be made at this early stage of the case, I do
note that CCUSO’s use of video monitoring has previously run afoul of constitutional
protections. Arnzen v. Palmer, 713 F.3d 369, 375 (8th Cir. 2013). Additionally, because of
Similarly, Hutchcroft alleges that the legal communications he sends via fax and
email are reviewed by the defendants. I have previously found that interference with a
patients’ legal papers may amount to a constitutional violation in certain situations. Mead
v. Palmer, No. C15-4055-LTS, 2016 WL 4775456, at *5 (N.D. Iowa 2016). Without
further discovery, it is unclear whether such activities fall under the terms of the CCUSO
handbook and/or the previous settlement or, instead, could amount to a constitutional
violation. Accordingly, those claims cannot be summarily dismissed.
Payment for GPS Monitoring Services
Hutchcroft also alleges that the defendants have forced him to pay for his own
GPS monitoring. As a general rule, prisons are allowed to charge inmates for costs
associated with incarceration. See Holloway v. Magness, 666 F.3d 1076, 1080 (8th Cir.
2012), stating that, “[t]he Constitution does not prohibit charging prisoners for essential
prison services, at least in the absence of a showing that the result is a severe deprivation
of a fundamental right.” As noted above, however, those detained at CCUSO are
patients, not prisoners. To my knowledge, the Eighth Circuit has not ruled on whether
a civil commitment program can charge detainees for services. However, in other
contexts the court has equated civil detainees’ rights to prisoners’ rights. See, e.g., Scott
v. Benson, 742 F.3d 335, 339 (8th Cir. 2014) (holding that civil detainees’ claims for
deficient medical care will be considered under the deliberate indifference standard used
for prisoners). Accordingly, to prevail on a claim that CCUSO impermissibly charges
him for GPS services, Hutchcroft would likely have to claim that those charges violate a
the nature of Iowa’s civil commitment statutory scheme, CCUSO patients have an ongoing and
continuous need to communicate with appointed counsel to prepare for their mandatory annual
state court proceedings.
fundamental right.5 He has failed to make such a claim.6
Without citing a case that
supports his position, or at least alleging that the defendants have violated his fundamental
rights, Hutchcroft fails to state a claim upon which relief could be granted. Accordingly,
I must dismiss this claim.
Defendant State of Iowa
Hutchcroft named the State of Iowa as a defendant in his amended complaint. 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, Hutchcroft’s amended complaint cannot
proceed against the State of Iowa.
Motion to Appoint Counsel
Hutchcroft requests the appointment of counsel. Doc. Nos. 2, 5. The appointment
of counsel for a person unable to afford counsel in a civil action is within my discretion.
See 28 U.S.C. §1915(e)(1).
I will reserve ruling on these motions until after the
defendants have filed their answer and any dispositive motions.
Some charges are specifically contemplated by statute: “Reimbursement may be obtained by
the director from the patient and any person legally liable or bound by contract for the support
of the patient for the cost of confinement or of care and treatment provided.” Iowa Code §
This is not to say that location monitoring cannot possibly affect a fundamental right. See, e.g.,
Eric M. Dante, Tracking the Constitution - The Proliferation and Legality of Sex-Offender GPSTracking Statutes, 42 Seton Hall L. Rev. 1169 (2012). However, Hutchcroft has failed to make
such a claim.
For the reasons set forth herein:
Hutchcroft’s motions to proceed in forma pauperis (Doc. Nos. 1 and 4) are
granted. The Clerk is directed to file his amended complaint (Doc. No. 4-1) without the
prepayment of fees.
Based on my initial review, almost all Hutchcroft’s claims fail as matter of
law. Specifically, his claims based on retaliation, payment for GPS monitoring services,
CCUSO’s mail policy, the confiscation of his cell phone, and the transitional release
hearing are denied and dismissed. Additionally, the State of Iowa is dismissed as a
defendant in this case.
However, Hutchcroft’s claims based on access to counsel and legal
communications are sufficient to survive the initial review stage and, therefore, will
Ruling is reserved on Hutchcroft’s motions (Doc. Nos. 2, 5) to appoint
counsel. Those motions will be addressed after the defendants respond to Hutchcroft’s
surviving claims and file dispositive motions.
The Clerk is directed to facilitate service of this order and the amended
complaint on the named defendants.
IT IS SO ORDERED.
DATED this 29th day of March, 2017.
LEONARD T. STRAND
CHIEF UNITED STATES DISTRICT JUDGE
March 29, 2017
/s/ djs, Deputy Clerk
March 29, 2017
March 29, 2017
March 29, 2017
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