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Hutchcroft v. Palmer

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

March 29, 2017

BRADLEY HUTCHCROFT, Plaintiff,
v.
CHARLES PALMER, CORY TURNER, SHANNON SANDERS, BRAD WITTROCK, CLINT FREDERIKSEN, MIKE MCDONALD, TAHL STIEG and THE STATE OF IOWA Defendants.

          INITIAL REVIEW ORDER

          LEONARD T. STRAND CHIEF UNITED STATES DISTRICT JUDGE.

         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.

         I. 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 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. Id. 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 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).

         II. HUTCROFT'S CLAIMS

         A. 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.

         B. Analysis

         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 ...


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