United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER
LEONARD T. STRAND, CHIEF JUDGE
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
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.” 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).
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.
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.
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.
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. 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
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.
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.
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
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.
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
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
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
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.
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
SUMMARY JUDGMENT STANDARDS
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).
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.
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.
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.
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.
Failure to Protect Claim
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.
The parties' arguments
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.
[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
Doc. No. 26-1 at 4-5.
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 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