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Welsh v. Andrews

United States District Court, N.D. Iowa, Central Division

June 30, 2015





Plaintiff James Welsh (Welsh) commenced this lawsuit in the Southern District of Iowa on September 27, 2013. His pro se complaint (Doc. No. 1) names as defendants Joseph Andrews (Andrews), Thomas Delanoit (Delanoit) and the Iowa Department of Corrections (IDOC). Welsh claims that his constitutional rights were violated while he was incarcerated at the Fort Dodge Correctional Facility (FDCF). He seeks compensatory damages, attorney fees and court costs, as well as full payment of any fines.

This case was transferred to this court on October 4, 2013. Doc. No. 5. On October 10, 2013, Welsh filed a pro se motion (Doc. No. 6) to appoint counsel, which he then supplemented (Doc. No. 7) on October 15, 2013. That motion was denied. However, on April 11, 2014, Welsh filed a second pro se motion (Doc. No. 15) to appoint counsel, which was granted. Counsel was appointed on April 15, 2014.

The defendants filed a motion (Doc. No. 31) for summary judgment on May 12, 2015, raising several arguments. Welsh filed a “resistance” (Doc. No. 34) on June 15, 2015.[1] The Honorable Mark W. Bennett has referred the motion to me for the preparation of a report and recommended disposition. No party has requested oral argument and, in any event, I find that oral argument is not necessary. See N.D. Ia. L.R. 7(c). The motion is fully submitted and ready for decision.


Welsh’s complaint includes the following allegations:

During May and June 2013, Andrews engaged in religious-based harassment towards Welsh, including (1) asking him if a prayer rug was a magic carpet and if he could have a ride, and (2) deliberately providing Welsh with pork meals, which violated his religion’s dietary rules. Andrews also made sexually-explicit comments regarding Welsh’s religious jewelry. Welsh reported this harassing behavior to Delanoit and generally attempted to avoid Andrews.

On July 6, 2013, Delanoit met with Welsh to discuss the claimed harassment. After the discussion, Welsh was returning to his cell when Andrews confronted him and stated that he lived in a free country, could say whatever he liked and suggested he killed Muslims for a living. Welsh responded by asking to talk with Delanoit again and Andrews called Delanoit. After ending the call with Delanoit, Andrews pulled out his pepper spray and approached Welsh in an aggressive manner. Delanoit told Andrews to “stand down” over the radio. Andrews disregarded this order and discharged his pepper spray at Welsh three separate times, causing a great deal of pain.

Welsh was then taken to the segregation unit for decontamination. He was placed in a shower. However, the water was so hot he was unable to rinse properly. He requested that cold water be turned on but the officers ridiculed him for not being able to stand the hot water. After his shower, he was taken to another cell and told that if he wanted cold water to wash off in, he could use the water in the toilet. Welsh then splashed the water from the toilet on himself and laid in the cold water on the ground to help ease the pain from the pepper spray.


The defendants filed a statement of undisputed material facts (Doc. No. 31-1). Welsh did not file a response to the defendants’ statement of facts, nor did he submit a statement of additional material facts. Welsh is therefore deemed to have admitted the defendants’ facts. N.D. Ia. L.R. 56(b). Those facts are set forth below. Additional facts will be discussed as necessary during the analysis of specific arguments.

On August 7, 2009, Welsh was committed to the custody and care of the IDOC to serve a ten-year sentence for theft in the first degree. Welsh was incarcerated at FDCF from April 9, 2013, until August 9, 2013, when he was transferred to the Iowa Medical and Classification Center in Coralville, Iowa. Welsh was transferred back to FDCF on August 21, 2013, and remained there until January 9, 2014. Welsh was discharged from his sentence on July 20, 2014.

At all times during Welsh’s incarceration, FDCF and the IDOC had a grievance policy (the Policy) in place. The Policy outlined the process for inmates to alert the IDOC administration to inmate complaints and to allow staff an opportunity to improve institutional operations. An inmate could either file an informal grievance by discussing the issue with staff or submit a formal written grievance within thirty days of the alleged incident. The Policy also outlined the appeals process for denied grievances.

In the months leading up to July 6, 2013, Welsh was disruptive and behaved inappropriately with FDCF staff on numerous occasions. On July 2, 2013, Welsh wrote a grievance regarding the manner in which a nurse at FDCF provided him Tylenol, accusing the nurse of forging documents. On July 5, 2013, Andrews entered an event in Welsh’s behavior log noting Welsh’s inappropriate behavior, including having his feet on a table, responding aggressively when asked to remove his feet from the table and continued disruption when asked to return to his cell.

On July 6, 2013, Welsh went to Delanoit’s office to complain about Andrews’ inappropriate comments regarding Welsh’s prayer rug. Delanoit explained to Welsh that he would talk with Andrews but stated that in the meantime, Welsh should return to his unit and lock down in his cell. When he returned to his unit, Welsh began threatening Andrews, aggressively approaching him, taking his shirt off and wrapping it around his head. Andrews directed Welsh to stop advancing. However, Welsh refused to obey the command and, as a result, Andrews sprayed him with pepper spray twice. Fellow officers responded to the incident and directed Welsh, who at first resisted, back to his cell. Welsh was then taken from his cell to lock up where he was allowed to shower and wash off the pepper spray. Welsh informed the officers that he intended to harm himself, which caused the officers to place him on “suicide watch” in a cell suited for observation. Welsh was asked if he wanted medical care but declined.

On July 8, 2013, Andrews wrote a disciplinary document regarding the July 6, 2013, incident. Welsh was served with the document on August 13, 2013, and on August 23, 2013, a hearing was held before an Administrative Law Judge (ALJ). The ALJ found that Welsh had violated prison rules 14 (threats/intimidation) and 26 (verbal abuse). Welsh was sanctioned with 15 days of disciplinary detention and 15 days loss of earned time. Welsh did not appeal the disciplinary conviction to the Warden, nor did he file a post-conviction relief action pursuant to Iowa Code Chapter 822. No court or tribunal has overturned the disciplinary conviction.

On July 9, 2013, Welsh filed a grievance regarding Andrews’ alleged harassment. The grievance did not reference the July 6, 2013, incident. The Grievance Officer denied Welsh’s grievance on July 11, 2013, and Welsh appealed that denial to the Warden. Deputy Warden Mike Kane denied the appeal on ...

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