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West v. Palmer

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

August 17, 2017





         Presently before the Court is defendant's motion for summary judgment. Doc. No. 25. Plaintiff has filed a resistance (Doc. No. 26) and defendants have filed a reply (Doc. No. 27). The plaintiff also filed a pro se supplement. Doc. No. 29. The motion is deemed fully submitted on the parties' written submissions.


         West is a patient at the Civil Commitment Unit for Sexual Offenders (CCUSO), located in Cherokee, Iowa. The patients at CCUSO “have served their prison terms but in a separate civil trial have been found likely to commit further violent sexual offenses.”[1] The State of Iowa committed West after a string of sex crime convictions, including a “conviction [which] occurred in 2008 following his guilty plea to assault with intent to commit sexual abuse, in violation of Iowa Code §§ 708.1, 709.11, and 901A.2(2).” In re Det. of West, 829 N.W.2d 589 (Table), 2013 WL 988815 (Iowa Ct. App. 2013).

         Since being committed to CCUSO, West has filed a variety of suits in this court. See, e.g., C12-4059-DEO. West filed the above captioned case on November 14, 2014. Doc. No. 1. Senior United States District Judge Donald E. O'Brien granted West's motion to proceed in forma pauperis and his motion to appoint counsel. Doc. No. 3. Around the same time, West filed a factually related case, C14-4098-MWB. That case was a 42 U.S.C. § 1983 case against a non-governmental entity, Tyson Foods, Inc. West later voluntarily dismissed that case. C14-4098-MWB, Doc. No. 4. However, West then refiled a factually identical case as an employment discrimination action. C15-4052-CJW. The parties in that case eventually entered into a stipulation of dismissal. C-15-4052-CJW, Doc. No. 27.

         Shortly after filing the above captioned case, West filed another pro se complaint, C14-4125-DEO. In that complaint, West alleged various CCUSO defendants were opening his mail. Judge O'Brien consolidated C14-4125-DEO with the above captioned case. Doc. No. 10. Judge O'Brien then directed appointed counsel to file one consolidated amended complaint, which she did. Doc. No. 12.


         West's amended complaint contains five different claims. First, West alleges that the defendants were deliberately indifferent to a risk of sexual assault that West suffered while working at Tyson Industries. Next, West alleges that the defendants improperly forced him to disclose his mental health diagnosis to his Tyson employers. Third, West alleges that the defendants have read his legal mail. Fourth, West alleges that the defendants have engaged in retaliation for his past lawsuits. Finally, West alleges that the defendants have infringed on his religious liberty.

         The parties agree to many of the relevant facts. As noted above, the State of Iowa committed West as a sexually violent predator in September, 2011. West, 2013 WL 988815 *1. West proceeded through the “phases” of treatment at CCUSO relatively quickly, earning “phase 5” in October, 2013.[2] Phase 5, or transitional release, allowed West to get a job outside of the CCUSO facility. He obtained employment at Tyson's meat processing plant in Storm Lake, Iowa. However, in August 2014, West failed to return to the CCUSO facility after his work shift. A few days later the U.S. Marshals Service captured him in Oklahoma. Following that incident, the Iowa District Court revoked his transitional release and West plead guilty to escape related charges.

         West claims he was sexually harassed and assaulted while at Tyson. He blames the treatment he received at Tyson as the reason he absconded. West alleges that Ricardo Perez, his supervisor, and Rick Lipai, a co-worker, harassed and intimidated him while he was at Tyson. West said they made graphic derogatory remarks related to his status as a sex offender. West further claims Lipai burned West with a steam valve and grabbed him while he was nude taking a work-related shower.

         West asserts he reported the incidents to Perez per the “chain of command.” Reporting incidents to your supervisor was generally consistent with Tyson's policy, although it stated that if you were harassed by your supervisor you could seek out a HR supervisor directly. Following his return to Iowa, West also filed a police report and a grievance with the Iowa Civil Rights Commission. Neither was resolved in West's favor. Tyson also internally investigated the situation but took no action. Both Lipai and Perez denied anything happened.

         West testified that he told CCUSO employees Jeremy Rowenbeck and Clint Frederiksen about the initial harassment he encountered at Tyson. He also stated that he “briefly mentioned” the sexual assault to CCUSO employee Byron Kelley, but “didn't get a chance to go into the whole detail on it.” The CCUSO employees testified that they did not recall West making specific complaints about working at Tyson, just general complaints about the nature of the work. West did not file any grievances with CCUSO about the situation, did not write any “kites” about it, nor did he request that he be allowed to get a different job. West also claims he kept a journal about the situation, but the defendants contend the journal West submitted is not accurate.

         CCUSO directs patients to disclose their status as sex offenders when they are seeking employment. In addition, West's status as a committed sex offender is public record, as is the fact that he is required to register as a sex offender. The parties agree that Iowa Code § 229A.15 requires medical records to be sealed from the public. According to West, CCUSO employee Mike White told him to disclose that he was a sexual offender, with a mental abnormality of paraphilia not otherwise specified.

         As will be discussed more below, CCUSO's general mail policy has been reviewed and approved by this court. Per the policy, CCUSO is directed to deliver legal mail unopened to the patients. On one instance, a piece of West's mail that should have been considered legal mail was opened outside West's presence. West filed a grievance consistent with CCUSO policy alleging his legal mail was opened outside his presence. That piece of mail was preserved and included in the parties' appendix. (Doc. No. 25-3 at 57.) CCUSO found, and I agree, that because of the way the return address was positioned on the envelope, it was impossible to see that letter was from the clerk of court. Instead, the letter appeared to be normal government correspondence. In an additional incident, defendant Reann Jackson allegedly read legal mail West was attempting to mail. Jackson denies this allegation. West filed a grievance. In response, defendant Wittrock sent an email to CCUSO staff reminding them that they were not allowed to read legal mail. West also claimed someone looked at legal documents in his room and on his flash drive.

         The facts related to West's retaliation claim are sparse. He generally alleges that he was retaliated against for filing a lawsuit. He alleges he lost access to a DVD player. However, there were no disciplinary reports associated with this restriction. Additionally, West alleges that his lost access for religious materials was in retaliation for filing a lawsuit.

         West belongs to a Pentecostal Christian church. At some point in the past, Pentecostal Pastor Jerry Greenwalt provided services at CCUSO, but had stopped doing so before the events giving rise to this case. West, upon earning transitional release, developed a relationship with Pastor Kevin Grimes and attended Grime's Pentecostal services in Spencer, Iowa. However, following his escape to Oklahoma, West was not allowed to leave CCUSO and was otherwise restricted to its highest security classification. Both his access to visitors and his access to the phone was restricted. At one point, he sought to call Pastor Grimes. Defendant Reinert initially told West that he could only call his attorney. However, within a few hours, West was informed he was allowed to call his pastor.

         West also filed a kite asking for access to his pastor. However, CCUSO has no control over whether independent pastors are willing or able to work with CCUSO patients. The parties generally dispute the other religious services available at CCUSO, the frequency of the non-denominational services and the quality of the religious materials, such as books and vocational information, available. There is no real dispute that West has access to Bob Stout, the CCUSO chaplain, and to other common religious material at CCUSO. There is no dispute that West requested additional, in person, contact with a Pentecostal minister, but as Stout testified, CCUSO defendants have no control over whether outside pastors are willing to visit the CCUSO facility.

         Related to both his free exercise and retaliation claims, a number of West's personal items were secured by CCUSO employees after his escape. Only certain items were returned to his direct control when he returned to CCUSO, as patients in CCUSO's secure facility are allowed less personal property than those who have advanced to the transitional release, non-secured, part of the facility. During this process, certain religious items were secured by CCUSO employees. However, it is undisputed that West failed to file “kites” formally asking that the property be returned.


         Any party may move for summary judgment regarding all or any part of the claims asserted in a case. Fed.R.Civ.P. 56(a). Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         A material fact is one that “‘might affect the outcome of the suit under the governing law.'” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, “the substantive law will identify which facts are material.” Id. Facts that are “critical” under the substantive law are material, while facts that are “irrelevant or unnecessary” are not. Id.

         An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or when “‘a reasonable jury could return a verdict for the nonmoving party' on the question, ” Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence that only provides “some metaphysical doubt as to the material facts, ” Matsushita, 475 U.S. at 586, or evidence that is “merely colorable” or “not significantly probative, ” Anderson, 477 U.S. at 249-50, does not make an issue of material fact genuine.

         As such, a genuine issue of material fact requires “sufficient evidence supporting the claimed factual dispute” so as to “require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 248-49. The party moving for entry of summary judgment bears “the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323). Once the moving party has met this burden, the nonmoving party must go beyond the pleadings and by depositions, affidavits, or otherwise, designate specific facts showing that there is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and material as it relates to the substantive law. If a party fails to make a sufficient showing of an essential element of a claim or defense with respect to which that party has the burden of proof, then the opposing party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322.

         In determining if a genuine issue of material fact is present, I must view the evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587-88. Further, I must give the nonmoving party the benefit of all reasonable inferences that can be drawn from the facts. Id. However, “because we view the facts in the light most favorable to the nonmoving party, we do not weigh the evidence or attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383 F.3d 779, 784 (8th Cir. 2004). Instead, “the court's function is to determine whether a dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996).

         V. ANALYSIS

         A. Failure to Protect Claim

         West alleges that the defendants forced him to work at Tyson and to reveal to his Tyson co-workers that he is a sex offender. West alleges that because of his status as a sex offender, he was harassed and assaulted while working at Tyson. He contends CCUSO employees knew he was in danger at Tyson but ignored that danger.

         1. The parties' arguments

         In their motion, defendants concede that in most situations they have a duty to protect incarcerated or committed individuals. They cite Reynolds v. Dormire, 636 F.3d 976 (8th Cir. 2011), for the proposition that the proper constitutional standard in this case is deliberate indifference. They then argue:

There is insufficient evidence that the Defendants at CCUSO knew there was a risk of assault and were deliberately indifferent to that risk. Tyson's had a policy against harassment. Policies against harassment indicate that employers take harassment seriously and are concerned with the well-being of their employees. West admitted he did not follow the Tyson's policy. West claims he talked to Frederiksen about the harassment. Frederiksen denies it. West claims it was in his journals so McDonald should have known. The journals he produced in discovery, however, are not the same as those turned in to CCUSO. West admits that he never told any Defendant directly that he wanted a different job.
. . . The alleged assault at issue occurred at Tyson's Foods. Mr. West admitted Tyson's is in control of security. CCUSO had no control over the environment at Tyson's. Van Smith v. Franklin, 286 F.App'x 373, 374-75 (9th Cir. 2008) (holding undisputed that parole officer defendants had no control over paroled SVP at jail and hospital, so no liability for failure to protect claim).

Doc. No. 25-2 at 8-9. Defendants also argue:

The law is not clearly established that CCUSO Defendants have a constitutional obligation to protect patients outside its facility. Even if this Court finds that there was some obligation on Defendants to do something in this novel circumstance, that would be new law. Qualified immunity remains appropriate. Hinshaw v. Smith, 436 F.3d 997, 1002 (8th Cir. 1996) (stating standard whether legal norms allegedly violated were clearly established at the time of the challenged action); Gorman v. Bartch, 152 F.3d 907, 914-15 (8th Cir. 1998) (finding, under facts, that reasonable officials would not have known the ADA applied to transport of arrestees); Offet v. Solem, 936 F.2d 363, 366 (8th Cir. 1991) (holding governmental officials are not required to guess at their peril the development of constitutional doctrine).

Id. at 9-10.

         West responds:

[T]he state must protect those in its custody and second, the state also must protect individuals if the state created the particular danger to which the individuals are subjected. Id. at 799. By requiring Mr. West to work at Tysons and requiring that he disclose his status as a sex offender and his diagnosis, Defendants placed him in a dangerous situation. He was physically injured and sexually assaulted as a result. He was required by Defendants to maintain his employment in order to maintain his status in transition and his efforts to find alternate employment were rebuffed.
Defendants argue that the law was not clearly established that they have an obligation to protect patients outside their walls. Yet these officials were involved in the selection of Tyson's as Mr. West's employer and required him to disclose information that subjected him to harassment at the workplace. Mr. West testified that he reported the harassment and defendants dispute his account of events. Defendants seem to want to rely on Mr. West's journals when it suits them but deny any knowledge of its contents elsewhere. Defendant Reinert testified that a review of Mr. West's journal revealed a possible relationship with a female that had not been disclosed in group therapy sessions. App. 173 (Fredericksen Dep. 17). Yet on the issue of failure to protect Mr. West from the risk that they created, they deny any knowledge of the content of those journals. If there is a genuine factual dispute regarding facts material to the case, there can be no summary judgment. Greiner v. City of Champlin, 27 F.3d 1346, 1352 (8th Cir. 1994).

Doc. No. 26-1 at 4-5.

         2. Discussion

         “When a person is involuntarily confined in a state mental health facility, the State has a duty imposed by the Substantive Due Process Clause of the Fourteenth Amendment to provide a ‘reasonably safe environment.'” Elizabeth M. v. Montenez, 458 F.3d 779, 786 (8th Cir. 2006) (quoting Beck v. Wilson, 377 F.3d 884, 890 (8th Cir. 2004)). “To establish prison officials[3] failed to prevent harm, [the plaintiff] first must prove he was ‘incarcerated under conditions posing a substantial risk of serious harm.'” Holden v. Hirner, 663 F.3d 336, 341 (8th Cir. 2011) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “This is an objective requirement to ensure the deprivation is a violation of a constitutional right.” Holden, 663 F.3d at 341. “Second, [the plaintiff] must establish the prison officials were deliberately indifferent to inmate health or safety.”Id. “This is a subjective requirement, mandating the prisoner prove the official both knew of and disregarded ‘an excessive risk to inmate health or safety.'” Id. (quoting Farmer, 511 U.S. at 837). “Th[e] requisite state of mind is akin to recklessness, which is ‘more blameworthy than negligence, ' yet less blameworthy than purposefully ...

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