Philips et al v. Wittrock et al

Filing 30

ORDER granting 28 Motion for Summary Judgment. The Clerk of Court is directed to enter judgment in favor of Defendants Brad Wittrock and Cory Turner and against Plaintiffs Donald E. Philips, Joseph Preston, Carl Rupe, Jason Lee Cook and Dave L. Taft, Jr. Further, the Clerk of Court is directed to close this case. Signed by Judge Linda R Reade on 3/21/2019 (copy w/NEF to Plts). (skm)

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

DONALD E. PHILIPS, et al.,
Plaintiffs,

No. 18-CV-4016-LRR

vs.
ORDER

BRAD WITTROCK, et al.,
Defendants.

TABLE OF CONTENTS
I.

INTRODUCTION. .............................................................................1

II.

RELEVANT PROCEDURAL HISTORY...................................................1

III.

SUMMARY JUDGMENT STANDARD....................................................2

IV.

RELEVANT FACTUAL BACKGROUND..................................................4
A.
B.

V.

ANALYSIS........................................................................................7
A.

B.
C.
VI.

The Parties...............................................................................5
The Plaintiffs’ Claims.................................................................5

Access to the Courts....................................................................8
1.
Applicable law..................................................................8
2.
Application......................................................................8
Qualified Immunity.....................................................................9
Eleventh Amendment Immunity and Personal Responsibility................10

CONCLUSION.................................................................................10
I. INTRODUCTION
The matter before the court is Defendant Brad Wittrock and Defenant Cory Turner’s

“Motion for Summary Judgment” (“Motion”) (docket no. 28).
II. RELEVANT PROCEDURAL HISTORY
On February 26, 2018, Plaintiffs Donald E. Philips, Joseph Preston, Carl Rupe,

Jason Lee Cook and Dave L. Taft, Jr. filed the pro se Complaint (docket no. 1-1). The
Complaint, brought under 42 U.S.C. § 1983, alleges four claims. First, Plaintiffs allege
that the monetary account system used by the Civil Commitment Unit for Sexual Offenders
(“CCUSO”) located in Cherokee, Iowa, infringes upon their constitutional rights. See
generally Complaint at 3-5. Second, Plaintiffs allege that their patient rooms lack an
adequate number of electrical outlets. See generally id. at 5-7. Third, Plaintiffs allege that
they are denied access to legal materials at the CCUSO facility, including not having a law
library, being denied access to legal resources and being discouraged from discussing legal
issues. See generally id. at 7-9. Fourth Plaintiffs complain about not having plastic toilet
seats in certain restrooms at the CCUSO facility. See generally id. at 9-10. On March 8,
2018, the court entered an Order denying Plaintiffs’ claims related to (1) the monetary
account system, (2) the electrical outlets and (3) the plastic toilet seats. See March 8, 2018
Order (docket no. 3) at 8.
On April 23, 2018, Plaintiffs filed a pro se “Motion for Permission to Amend
Complaint” (docket no. 22). On the same date, the court entered an Order denying the
motion to amend. See April 23, 2018 Order (docket no. 23) at 1. On May 16, 2018,
Defendants filed an Answer (docket no. 26) to the Complaint. On August 15, 2018,
Defendants filed the Motion. Plaintiffs did not file a resistance to the Motion. The matter
is fully submitted and ready for decision.
III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “Summary judgment is proper ‘if the pleadings, the discovery and
disclosure materials on file, and any affidavits show’” an absence of a genuine dispute as
to a material fact. Hilde v. City of Eveleth, 777 F.3d 998, 1003 (8th Cir. 2015) (quoting
Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc)). “A

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dispute is genuine if the evidence is such that it could cause a reasonable jury to return a
verdict for either party; a fact is material if its resolution affects the outcome of the case.”
Massey-Diez v. Univ. of Iowa Cmty. Med. Servs., Inc., 826 F.3d 1149, 1157 (8th Cir.
2016) (quoting Gazal v. Boehringer Ingelheim Pharm., Inc., 647 F.3d 833, 837-38 (8th
Cir. 2011)). “The movant ‘bears the initial responsibility of informing the district court
of the basis for its motion,’ and must identify ‘those portions of [the record] . . . which it
believes demonstrate the absence of a genuine issue of material fact.’” Torgerson, 643
F.3d at 1042 (alterations in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). Once the movant has done so, “the nonmovant must respond by submitting
evidentiary materials that set out ‘specific facts showing that there is a genuine issue for
trial.’” Id. (quoting Celotex Corp., 477 U.S. at 324).
On a motion for summary judgment, the court must view the facts “in the light
most favorable to the nonmoving party.” Id. (quoting Ricci v. DeStefano, 557 U.S. 557,
586 (2009)). “Where the record taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for trial,” and summary judgment
is appropriate. Ricci, 557 U.S. at 586 (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). “The nonmovant ‘must do more than simply
show that there is some metaphysical doubt as to the material facts’ . . . .” Torgerson,
643 F.3d at 1042 (quoting Matsushita, 475 U.S. at 586). Instead, “[t]o survive a motion
for summary judgment, the nonmoving party must substantiate [its] allegations with
sufficient probative evidence [that] would permit a finding in [its] favor based on more
than mere speculation, conjecture, or fantasy.” Williams v. Mannis, 889 F.3d 926, 931
(8th Cir. 2018) (third alteration in original) (quoting Barber v. C1 Truck Driver Training,
LLC, 656 F.3d 782, 801 (8th Cir. 2011)). Mere “self-serving allegations and denials are
insufficient to create a genuine issue of material fact.” Anuforo v. Comm’r of Internal
Revenue, 614 F.3d 799, 807 (8th Cir. 2010). “Evidence, not contentions, avoids summary

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judgment.” Reasonover v. St. Louis Cty., 447 F.3d 569, 578 (8th Cir. 2006) (quoting
Mayer v. Nextel W. Corp., 318 F.3d 803, 809 (8th Cir. 2003)).
IV. RELEVANT FACTUAL BACKGROUND
By failing to file a resistance, Plaintiffs have not complied with the Local Rules and
Federal Rules of Civil Procedure. Local Rule 56(b) requires that any party resisting a
motion for summary judgment to file a brief “responding[ing] to each of the grounds
asserted in the motion for summary judgment.” LR 56(b)(1). Local Rule 56(b) also
requires that the resisting party respond to the moving party’s statement of material facts
by “expressly admit[ting], deny[ing], or qualify[ing] each of the moving party’s numbered
statements of fact.” LR 56(b)(2). “The failure to respond to an individual statement of
material fact, with appropriate appendix citations, may constitute an admission of that
fact.” LR 56(b). The Federal Rules of Civil Procedure similarly provide that, if a
resisting party:
fails to properly address another party’s assertion of fact as
required by Rule 56(c), the court may: (1) give an opportunity
to properly support or address the fact; (2) consider the fact
undisputed for purposes of the motion; (3) grant summary
judgment if the motion and supporting materials including the
facts considered undisputed show that the movant is entitled
to it; or (4) issue any other appropriate order.
Fed. R. Civ. P. 56(e).
While the court is cognizant that Plaintiffs are appearing pro se, this does not excuse
the noncompliance with the Federal Rules of Civil Procedure and the Local Rules. See,
e.g., Beck v. Skon, 253 F.3d 330, 333 (8th Cir. 2001) (concluding that a pro se plaintiff
“was required to respond to defendants’ motions with specific factual support for his
claims to avoid summary judgment”). The court finds that allowing Plaintiffs additional
time to file a resistance would be futile and would unduly delay the adjudication of this
case. Accordingly, the court shall consider any material facts contained in the Statement

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of Material Facts (“SMF”) (docket no. 28-1) as undisputed, if those facts are properly
supported by citations to the Appendix (docket no. 28-3).
A. The Parties
Plaintiffs are patients at CCUSO, who were civilly committed to the secure facility
pursuant to Iowa Code section 229A. See Complaint at 2; Answer at ¶ 5. Defendant Brad
Wittrock is the Deputy Superintendent and Director of Security at CCUSO. See Complaint
at 2; Answer at ¶ 6. Defendant Cory Turner is the Superintendent of CCUSO. See
Complaint at 2-3; Answer at ¶ 7.
B. The Plaintiffs’ Claims
In the Complaint, Plaintiffs assert that CCUSO lacks an adequate law library. See
generally Complaint at 7. Plaintiffs seek the following legal materials, “Supreme Court
Reporters, Northwestern Reporters, Federal Supplements, Federal Reporters . . .
Shepardize Books, Martindale Hubbell Books [and] [c]omputers solely used for [l]egal
[r]esearch and filings of [pro se] [f]orms or other legal stuff.” Id. at 8-9.
CCUSO makes the following legal materials available to its patients: Lexis Nexis,
the Iowa Code (2011, 2013, 2015), the Federal Rules of Civil Procedure (2011-2016
editions), the Prisoner’s Self-Help Litigation Manual (Fourth Edition), the Local Rules for
both the Northern and Southern Districts of Iowa.

See Defendants’ SMF at ¶ 2;

Defendants’ Appendix at 125; 162-63. The Lexis Nexis software is available on three
computers designated for patient use. Defendants’ SMF at ¶ 3; Defendants’ Appendix at
125.
Plaintiff Joseph Preston was committed to CCUSO in 2008. Defendants’ SMF at
¶ 4; Defendants’ Appendix at 7. Preston is represented by Amy Kepes in his state court
commitment case. Defendants’ SMF at ¶ 7; Defendants’ Appendix at 10-11. At his
deposition, Preston testified that pro se claims that he had filed in state and federal court
had not been impaired by the alleged lack of legal resources at CCUSO. See generally,

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Defendants’ SMF at ¶¶ 5-6, 9-12; Defendants’ Appendix at 18-19. Preston has not filed
a complaint or grievance with CCUSO stating that he lacked adequate access to legal
resources at CCUSO. Defendants’ SMF at ¶ 14; Defendants’ Appendix at 19.
Plaintiff Dave L. Taft, Jr. was committed to CCUSO in 2005. Defendants’ SMF
at ¶ 15; Defendants’ Appendix at 35. Taft has several pending cases, including a case
involving lack of adequate treatment and confiscation of items, an appeal on a gender
discrimination case and his state commitment case. Defendants’ SMF at ¶ 16; Defendants’
Appendix at 38. Taft is represented by Phil Mears on the state court commitment case,
by Bob Tiefenthaler on the adequate treatment/confiscation of items case and by Michael
Gooch in the gender discrimination appeal.

Defendants’ SMF at ¶¶ 17, 19, 21;

Defendants’ Appendix at 39-40. At his deposition, Taft testified that he was satisfied with
his representation in his various cases, and that there are no legal materials that he wanted
to access but was unable to access at CCUSO. Defendants’ SMF at ¶¶ 18, 20, 22;
Defendants’ Appendix at 46-48. Further, when asked whether any of his legal cases had
been “impaired” due a lack of adequate legal materials, Taft responded that “I have not
been too impoverished or or too held back.” Defendants’ SMF at ¶ 28; Defendants’
Appendix at 51.
Plaintiff Donald E. Philips was committed to CCUSO in 2007. Defendants’ SMF
at ¶ 33; Defendants’ Appendix at 70. Philips is represented by Michael Gooch in the
gender discrimination case that is being litigating with Taft. Defendants’ SMF at ¶ 35;
Defendants’ Appendix at 72. Philips is also represented by a state public defender in his
state court commitment case. Defendants’ SMF at ¶ 37; Defendants’ Appendix at 72, 74.
Philips did not identify any current or pending claim that he wanted to research.
Defendants’ SMF at ¶ 43; Defendants’ Appendix at 80-81.
Plaintiff Carl Rupe was committed to CCUSO in January 2018. Defendants’ SMF
at ¶ 45; Defendants’ Appendix at 90. Rupe is represented by a state public defender in his

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state court commitment case. Defendants’ SMF at ¶ 47; Defendants’ Appendix at 92. At
his deposition, Rupe stated that he is requesting CCUSO to obtain “civil laws,” and that
he has never been to the law library at CCUSO.

Defendants’ SMF at ¶¶ 48-49;

Defendants’ Appendix at 93-94.
Plaintiff Jason Cook was committed to CCUSO in 2012, but was not admitted to
CCUSO until 2013. Defendants’ SMF at ¶ 53; Defendants’ Appendix at 113-14. Cook
is represented by Tom Gaul in his state court commitment case. Defendants’ SMF at ¶ 55;
Defendants’ Appendix at 115. At his deposition, when asked whether he thought his state
court commitment case was “impaired” due to a lack of legal resources, Cook replied “I
don’t think so. No.” Defendants’ Appendix at 118; see also generally Defendants’ SMF
at ¶ 58. Cook has not filed a complaint or grievance with CCUSO complaining of a lack
of adequate access to legal resources at CCUSO. Defendants’ SMF at ¶ 59; Defendants’
Appendix at 120-22.
Two of the Plaintiffs, Taft and Philips were named plaintiffs in a certified class
action that brought § 1983 claims against CCUSO regarding conditions of their
confinement. See generally Defendants’ SMF at ¶ 71; Defendants’ Appendix at 134-35.
On April 26, 2012, the United States District Court for the Northern District of Iowa
approved a settlement for the certified class action claims in Case No. 05-CV-4065.
Defendants’ SMF at ¶ 70; Defendants’ Appendix at 134. In part, the settlement related
to adequate access to legal materials. Id.; Defendants’ Appendix at 137.
V. ANALYSIS
Plaintiffs argue that CCUSO lacks an adequate law library. Plaintiffs request that
CCUSO provide them access to legal books, including “Supreme Court Reporters,
Northwestern Reporters, Federal Supplements, Federal Reporters . . . Shepardize Books,
Martindale Hubbell Books [and] [c]omputers solely used for [l]egal [r]esearch and filings
of [pro se] [f]orms or other legal stuff.” Complaint at 8-9.

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A. Access to the Courts
1.

Applicable law

“The Constitution guarantees prisoners a right to access the courts.”1 White v.
Kautzky, 494 F.3d 677, 679 (8th Cir. 2007). “For prisoners, meaningful access to the
courts ‘requires prison authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law.’” Id. (quoting Bounds v. Smith, 430 U.S. 817,
828 (1977), overruled on other grounds by Lewis v. Casey, 518 U.S. 343, 354 (1996)).
In order to prove a violation of the right to meaningful access to the courts, a patient
“must establish the state has not provided an opportunity to litigate a claim challenging the
prisoner’s sentence or conditions of confinement in a court of law, which resulted in actual
injury, that is, the hindrance of a nonfrivolous and arguably meritorious underlying legal
claim.” White, 494 F.3d at 680. Actual injury requires the patient to prove that “‘a
nonfrivolous legal claim had been frustrated or was being impeded.’” Id. (quoting Casey,
518 U.S. at 353).
2. Application
Defendants argue that Plaintiffs have failed to allege, much less prove, actual
injuries arising from the alleged denial of access to the courts. See generally Defendants’
Brief in Support of Motion for Summary Judgment (“Defendants’ Brief”) (docket no. 282) at 3-5. Here, Plaintiffs are all represented by counsel in their state court commitment

1

Plaintiffs are civilly-committed patients, not prisoners. However, the Eighth
Circuit Court of Appeals often uses prisoner standards when evaluating 42 U.S.C. § 1983
claims filed by civilly-committed individuals, including “access to courts” claims. See
Beaulieu v. Ludeman, 690 F.3d 1017, 1037 (8th Cir. 2012) (discussing the prisoner
standard for access to the court in affirming a case arising out of Minnesota’s civil
commitment program for sexual offenders).
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cases.2 None of the Plaintiffs’ allegations of denial of access to the courts resulted in an
actual injury. Specifically, at his deposition, Preston testified that none of his claims had
been impaired by the alleged lack of legal resources at CCUSO. At his deposition, Taft
testified that he had not been “held back” by the alleged lack of legal resources at CCUSO.
Philips did not identify any claim that he wanted to research or was denied the ability to
research. At his deposition, Rupe stated that he had never even been to the law library at
CCUSO. At his deposition, Cook testified that any claims he had were not “impaired” due
to a lack of legal resources. Additionally, both Philips and Taft were plaintiffs in an
earlier case that settled, among other things, issues related to the adequacy of the CCUSO
library. Since the prior case settlement, the CCUSO library has added Lexis Nexis,
providing additional legal resources to the patients from when the previous case was
settled. Based on the foregoing, the court finds that Plaintiffs have not only failed to
prove any injuries from the denial of access to the courts, Plaintiffs have failed to even
allege an actual instance of being denied such access. Accordingly, Plaintiffs’ access to
the courts claims fail as a matter of law.
B. Qualified Immunity
Having concluded that Defendants are entitled to judgment as a matter of law
because the record fails to establish a genuine issue of material fact with regard to whether
Plaintiffs’ constitutional rights to access to the courts have been violated, it is not necessary
to review Defendants’ remaining contention that they are entitled to qualified immunity.
Nonetheless, qualified immunity shields “all but the plainly incompetent or those who
knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986), and the record
does not establish that Defendants violated the law. See Hill v. McKinley, 311 F.3d 899,
903-04 (8th Cir. 2002) (concluding that defendants were entitled to qualified immunity

2

Both Taft and Philips also have counsel for their non-state court commitment
cases, except for the instant pro se § 1983 claim for denial of access to the courts.
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because their actions did not violate clearly established law); see also Howard v. Kansas
City Police Department, 570 F.3d 984, 987-88 (8th Cir. 2009) (“‘Qualified immunity
protects a government official from liability in a section 1983 action unless the official’s
conduct violated a clearly established constitutional or statutory right of which a reasonable
person would have known.’ Henderson v. Munn, 439 F.3d 497, 501 (8th Cir. 2006).”).
Indeed, Defendants provide Plaintiffs with access to more than adequate legal materials
and facilitate contact with appointed counsel.
C. Eleventh Amendment Immunity and Personal Responsibility
Finally, Defendants raise issues of Eleventh Amendment immunity and personal
responsibility. See generally Defendants’ Brief at 7-8. Having determined that Defendants
are entitled to judgment as a matter of law because Plaintiffs’ access to the courts claims
lack merit, and because Defendants are shielded by qualified immunity, the court finds that
it need not address these alternative arguments.
VI. CONCLUSION
In light of the foregoing, Defendants’ Motion for Summary Judgment (docket no.
28) is GRANTED. The Clerk of Court is DIRECTED to enter judgment in favor of
Defendants Brad Wittrock and Cory Turner and against Plaintiffs Donald E. Philips,
Joseph Preston, Carl Rupe, Jason Lee Cook and Dave L. Taft, Jr. Further, the Clerk of
Court is DIRECTED to CLOSE THIS CASE.
IT IS SO ORDERED.
DATED this 21st day of March, 2019.

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