Reed, Laera v. Ourada, John et al

Filing 23

ORDER granting 8 Motion to Dismiss for Lack of Jurisdiction. Defendant Palmer is dismissed as a defendant in this case. Signed by District Judge Barbara B. Crabb on 12/28/2017. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - LAERA REED,
OPINION AND ORDER
Plaintiff,
17-cv-590-bbc
v.
JOHN OURADA, PAUL WESTERHAUS,
WAYNE S. OLSON, WENDY PETERSON,
BRAIN GUSTKE, LORI MCCALISTER,
KYLE HOFF and CHARLES PALMER,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - PAIGE RAY-CLUNEY,
OPINION AND ORDER
Plaintiff,
17-cv-591-bbc
v.
JOHN OURADA, PAUL WESTERHAUS,
WAYNE S. OLSON, WENDY PETERSON,
BRAIN GUSTKE, LORI MCCALISTER,
CHARLES PALMER, DARRELL STETZER and
ANDREW YORDE,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - Plaintiffs Laera Reed and Paige Ray-Cluney, both residents of Iowa, have brought a
number of constitutional and state law claims against several defendants arising out of
alleged abuse they suffered while confined at the Copper Lake School for girls in Irma,
Wisconsin. Plaintiffs were confined at Copper Lake pursuant to court orders from Iowa

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state courts. At the time of their confinement, the State of Iowa had contracted with the
State of Wisconsin to house girls at Copper Lake. Acting in his position as the director of
the Iowa Department of Human Services, defendant Charles Palmer had authorized the
contract on behalf of the State of Iowa. Plaintiffs contend that Palmer should be held liable
for the harm they suffered while at Copper Lake because he knew, or should have known,
of the abuse at the Copper Lake but failed to take any steps to remove plaintiffs.
Now before the court is defendant Palmer’s motions to dismiss plaintiffs’ claims
against him on numerous grounds. Dkt. #8 in 17-cv-590-bbc and 17-cv-591-bbc. (Unless
otherwise noted, citations to docket numbers in this opinion refer to case number 17-cv590.) As explained below, I am granting Palmer’s motions to dismiss because I conclude that
he is entitled to qualified immunity with respect to plaintiffs’ federal claims, plaintiffs
concede they have not exhausted their state law tort claims and I decline to exercise
supplemental jurisdiction over plaintiff Reed’s constitutional claims arising under Iowa’s
constitution. Therefore, I am dismissing Palmer from these cases.

OPINION
Plaintiffs bring claims for monetary damages against defendant Palmer (and all of the
other defendants) under the Fourth, Eighth and Fourteenth Amendments, as well as Iowa
state law. Plaintiff Reed also brings several claims for monetary damages under the Iowa
Constitution. Defendant Palmer moves to dismiss plaintiffs’ claims against him on the
grounds that: (1) this court cannot exercise personal jurisdiction over him; (2) Wisconsin

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is an inconvenient forum; (3) Iowa has not waived sovereign immunity for plaintiffs’
constitutional claims; (4) this court should abstain from determining undeveloped questions
of Iowa law; (5) plaintiffs have failed to state a claim upon which relief may be granted; (6)
Palmer has absolute immunity; (7) Palmer has qualified immunity; (8) plaintiffs cannot
recover monetary damages; (9) plaintiffs did not exhaust their tort claims; and (10) Iowa has
not waived sovereign immunity for claims of false imprisonment. Plaintiffs concede they
have not administratively exhausted their tort claims arising under Iowa law, dkt. #19 at 18.
Thus, I will dismiss those claims without prejudice and without further discussion. Segura
v. State, 889 N.W.2d 215, 224 (Iowa 2017) (courts lack jurisdiction to consider tort claims
that have not been administratively exhausted).
Generally, I would address defendant’s personal jurisdictional arguments next.
However, because plaintiffs’ federal constitutional claims against defendant Palmer are
barred by the doctrine of qualified immunity and I decline to exercise supplemental
jurisdiction over the state law constitutional claims, I need not address defendant’s personal
jurisdiction arguments. 4 Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1067.6 (stating that a court can “resolv[e] the suit on the merits when they
clearly must be decided in favor of the party challenging [personal] jurisdiction, thereby
obviating any need to decide the question”) (collecting cases); Evangelical Benefit Trust v.
Lloyd's Underwriters Syndicate Nos. 2987, 1607, 1183 & 2001, No. 09 C 4004, 2010 WL
2927404, at *3 (N.D. Ill. July 19, 2010) (granting motion to dismiss on merits without
resolving question of personal jurisdiction).

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A. Qualified Immunity
Defendant Palmer argues that he is entitled to immunity for plaintiffs’ constitutional
claims against him in his individual capacity. Qualified immunity protects government
employees from liability for civil damages for actions taken within the scope of their
employment unless their conduct violates “clearly established . . . constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). See also Saucier v. Katz, 533 U.S. 194, 201 (2001); Pearson v. Callahan, 555 U.S.
223, 236 (2009). “[A] defendant cannot be said to have violated a clearly established right
unless the right's contours were sufficiently definite that any reasonable official in the
defendant's shoes would have understood that he was violating it. In other words, existing
precedent must have placed the statutory or constitutional question confronted by the
official beyond debate.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (quotations
and citations omitted). Qualified immunity “give[s] government officials breathing room
to make reasonable but mistaken judgment about open legal questions.” Ashcroft v. al-Kidd,
563 U.S. 731, 743 (2011). Although qualified immunity is an affirmative defense, the
plaintiff has the burden of defeating it once the defendant raises it. Archer v. Chisholm, 870
F.3d 603, 613 (7th Cir. 2017).
As set forth in their complaints, plaintiffs’ specific constitutional claims arise under
the Fourth, Eighth and Fourteenth Amendments and are based on allegations that plaintiffs
were subjected to cruel and unusual punishment and excessive force while housed at Copper
Lake. With respect to defendant Palmer in particular, however, plaintiffs’ complaints

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contain few allegations about his involvement in the alleged constitution violations.
Specifically, the only allegations regarding Palmer are that:
(1) “[F]or $301 per day per girl, the State of Iowa, by and through Charles Palmer,
contracted with the State of Wisconsin for use of the Wisconsin Girls State Training
School,” Cpt. ¶ 20;
(2) “In June 2015, [plaintiff] was in the custody of the Director of the Iowa
Department of Human Services, defendant Charles Palmer, pursuant to Court
Order,” Cpt. ¶ 21;
(3) “At all times material hereto, the State of Iowa, by and through Charles Palmer
and the Iowa Department of Human Services, monitored and received reports
concerning [plaintiff’s] confinement at Copper Lake,” Cpt. ¶ 22;
(4) “At all times relevant hereto, Defendant Palmer knew or should have known of
the systemic and excessive use of isolation cells at Copper Lake. Despite such
knowledge, Palmer failed to remove the Iowa girls placed at Copper Lake and acted
with deliberate indifference in doing so.” Cpt. ¶ 66.
Plaintiffs clarify in their brief that they are “not claim[ing that their] initial detention
or restraint [at Copper Lake] [was] unlawful, [but] instead [are] challeng[ing] the conditions
of [their] detention and restraint.” Plts.’ Br., dkt. #19, at 18. They further argue that
Palmer in particular violated their rights by failing to take steps to remove them from Copper
Lake after learning about the systemic and excessive use of isolation cells there. Id. at 14.
They concede that “it is true that to remove [plaintiffs] from their Copper Lake placements
would have required a court order,” but they blame defendant Palmer for “never [seeking]
such a court order.” Id.
Defendant Palmer contends that he is entitled to qualified immunity because neither
plaintiffs’ allegations nor the legal theories in their briefs support a claim that he violated a
statutory or constitutional right that was clearly established at the time of his actions. In
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particular, he argues that it was not clearly established that simply because a government
actor signs a contract that permits individuals to be confined at an institution and later
“monitors” and receives a “report” regarding the confinement, the government official has
a constitutional obligation to take steps to remove the individuals upon learning of problems
at the institution. Citing J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 792 (7th Cir. 2003),
Palmer argues that plaintiffs would have to allege that he was “deliberately indifferent” to
“a substantial and known risk,” which they have not done.
In response, plaintiffs do not cite any cases that clearly establish what the constitution
requires of a government official in defendant’s position under similar circumstances.
Instead, plaintiffs cite only one case, Turner v. Palmer, 1:14-cv-0024-JEG-HCA (S.D. Iowa),
which involved claims against defendant Palmer and other employees of Iowa’s Department
of Human Services regarding systematic use of isolation cells at the Iowa Juvenile Home, an
institution controlled and managed by Palmer and the department.

In denying the

defendants’ motion to dismiss on qualified immunity grounds, the Iowa court held that it
was clearly established that placing juveniles in isolation cells for extended periods could
violate the constitution. Id. (Dkt. #24, Feb. 4, 2015) (citing R.G. v. Koller, 415 F. Supp.
2d 1129 (D. Haw. 2006)).
The district court’s decision in Turner does not amount to “clearly established law”
that controls in the present case for two reasons. First, “clearly established law” requires
controlling precedent from the United States Supreme Court, the United States Court of
Appeals or the highest court in the state. Lane v. Franks, 134 S. Ct. 2369, 2381 (2014).

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The decision of a federal district court decision cannot be considered “clearly established
law.” Second, the claims against defendant Palmer in this case are clearly distinguishable
from those in Turner, in which Palmer and the other Department of Human Services
employees actually controlled and operated the institution in which the abuse had occurred
and “oversaw the use of the isolation cells in which [the] plaintiff was confined.” Turner,
1:14-cv-0024-JEG-HCA, dkt. #24 at 3. The allegations against Palmer in this case are
completely different. Palmer is not alleged to have had a role in managing, operating or
supervising the Copper Lake school. Instead, plaintiffs allege only that Palmer authorized
the contract with Wisconsin to send girls to Copper Lake and later received “reports” and
“monitored” girls sent there. However, plaintiffs do not provide any details about what the
“monitoring” entailed or what information was contained in the reports that Palmer
received. They do not allege that Palmer knew plaintiffs had been subjected to excessive
isolation, that he “oversaw” the isolation or that he could have requested or required changes
to the situation at Copper Lake. They also do not allege that Palmer’s role as the Director
of the Department of Human Services involved making recommendations to state court
judges regarding placement decisions or that his requests would be appropriate or influential.
Instead, they argue in their brief that Palmer “had the power to ask the Juvenile Court to
modify the placement,” dkt. #19 at 14, and cite as evidence a motion filed with the court
by “Juvenile Services,” the agency that had “jurisdiction” over plaintiffs, requesting that
plaintiff Reed be moved from Copper Lake after she had completed her programming there.
Id. (citing dkt. #10-3.) These allegations are not enough to allow the court to infer that

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Palmer had the knowledge, responsibility or influence to request removal of plaintiffs from
Copper Lake.
Moreover, to recover damages against a state actor under § 1983, a plaintiff must
show the actor was “personally responsible for the constitutional deprivation.” J.H. ex rel
Johnson, 346 F.3d at 793 (citing Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 614
(7th Cir. 2002), and Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)). A
supervisor can be held liable under § 1983 only if he or she “had some personal involvement
in the constitutional deprivation, essentially directing or consenting to the challenged
conduct.” Doyle, 305 F.3d at 614 (citing Chavez v. Illinois State Police, 251 F.3d 612, 651
(7th Cir. 2001)). Plaintiffs’ allegations do not support the drawing of an inference that
defendant Palmer was personally responsible for any violation of plaintiffs’ constitutional
rights.
Accordingly, because plaintiffs have not shown that defendant Palmer violated a
clearly established constitutional right, their federal claims against him will be dismissed.

B. Iowa Constitutional Claims
Plaintiff Reed includes claims against defendant Palmer under various provisions of
the Iowa Constitution, including claims under Article I, Sections 8, 9 and 17. Recently, the
Iowa Supreme Court held that some provisions of Iowa’s constitution are “self-executing”
and may permit damages claims without legislative authorization. Godfrey v. State of Iowa,
898 N.W.2d 844 (Iowa June 30, 2017). Defendant Palmer argues that because the Iowa

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Supreme Court has not yet decided the contours of a direct Iowa constitutional damages
cause of action, and has not addressed the viability of claims similar to those in this case, this
court should abstain from exercising jurisdiction over the Iowa constitutional claims. In
response, plaintiff Reed argues that abstention is unnecessary because this court can simply
certify any questions of Iowa law to the Iowa Supreme Court for consideration.
I agree with defendant Palmer. After I dismiss plaintiffs’ federal constitutional and
state tort claims, the only claims remaining against Palmer would be plaintiff Reed’s claims
arising under the Iowa Constitution. Under 28 U.S.C. 1367(c)(1), a federal district court
can decline to exercise supplemental jurisdiction over a state law claim that “raises a novel
or complex issue of State law.” I conclude that the recently recognized potential right to
monetary damages under the Iowa Constitution is a novel issue of state law that should be
developed further by Iowa state courts, not by a federal court in Wisconsin. For these
reasons, I am declining to exercise supplemental jurisdiction over the Iowa constitutional
claims against defendant Palmer.

ORDER
IT IS ORDERED that
1. Defendant Charles Palmer’s motions to dismiss, dkt. #8 in 17-cv-590-bbc and 17cv-591-bbc, are GRANTED.

Plaintiffs Paige Ray Cluney and Laera Reeds’ federal

constitutional claims against Palmer are dismissed on grounds of qualified immunity;
plaintiffs’ Iowa state tort claims against Palmer are dismissed without prejudice for failure

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to exhaust administrative remedies; and the court declines to exercise supplemental
jurisdiction over plaintiff Reed’s claims against Palmer under the Iowa Constitution.
2. Defendant Palmer is DISMISSED as a defendant in these cases.
Entered this 28th day of December, 2017.

BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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