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Cummings v. Palmer

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

November 30, 2017



          Leonard T. Strand, Chief Judge


         This case is before me on defendants' motion (Doc. No. 14) for summary judgment. Plaintiff Perry Cummings has filed a resistance (Doc. No. 19). I find that oral argument is not necessary. See N.D. Ia. L. R. 7 (c).


         Cummings commenced this action by filing an application (Doc. No. 1) to proceed in forma pauperis, a proposed pro se complaint (Doc. No. 1-1) pursuant to 42 U.S.C. § 1983 and a pro se motion (Doc. No. 2) to appoint counsel. On April 27, 2017, I filed an initial review order (Doc. No. 3) in which I granted Cummings' request to proceed in forma pauperis and directed the Clerk of Court to file the pro se complaint. I reserved ruling on Cummings' motion to appoint counsel.[1]

         As for the merits of Cummings' complaint, which asserts a constitutional violation arising from allegations that the defendants were deliberately indifferent to his need for dentures, I determined that Cummings “alleged a plausible claim for relief.” Id. at 5. On May 9, 2017, defendants filed an answer (Doc. No. 8) denying Cummings' claims and asserting various immunities. Defendants then filed their motion for summary judgment on June 19, 2017.


         In his resistance to defendants' motion for summary judgment, Cummings does not respond separately to defendants' statement of material undisputed facts. See Doc. No. 19. “[A] failure to respond to an individual statement of material fact, with appropriate appendix citations, may constitute an admission of that fact.” See N.D. Ia. L. R. 56(b); see also Fed. R. Civ. P. 56(e). Therefore, I will treat as admitted all of the facts set forth in defendants' statement. Doc. No. 14-1. Thus, the following facts are undisputed.

         Cummings is a patient at the Civil Commitment Unit for Sexual Offenders (CCUSO) in Cherokee, Iowa, having been committed in October 2014. Doc. No. 14-3 at 6. 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.”[2] Jerry Foxhoven is the Director of the Iowa Department of Human Services, which operates CCUSO.[3] Cory Turner is the superintendent of CCUSO. Doc. No. 8 at ¶ 4. Brad Wittrock is the deputy superintendent of CCUSO and Mary Benson formerly worked at CCUSO as an ARNP. Id. at ¶¶ 5-6. Cummings contends he has received constitutionally deficient medical care because the defendants have refused to provide him with dentures. He alleges that Foxhoven, Turner and Wittrock are responsible because of their supervisory or policy making roles, and that Benson is responsible because she is in charge of making dentist appointments and decides whether dentures are medically necessary. Doc. No. 4 at 4-5.

         CCUSO has a written policy on dental care, which states:

Dental care for patients is provided by a dentist selected by CCUSO. CCUSO patients should complete a CCUSO Health Services Request form to request all dental care appointments via Health Services.
CCUSO will be responsible for the cost of the dental exam and any dentist recommended plan of care to include x-ray(s), filling of cavity(s), and/or tooth extraction(s). NOTE: If the patient desires elective dental services including but not limited to additional x-ray(s), teeth cleaning, crown(s), cosmetic procedure(s), and/or new or replacement dentures, the patient will be responsible for all associated costs with the elective dental services. The costs for elective dental services must be paid in full, prior to Health Services scheduling elective dental services and/or ordering any related items.
The following will apply to any patients requesting new or replacement dentures:
Any patient who believes he may be in need of dentures is to contact Health Services and request an evaluation with the dentist selected by CCUSO. If the dentist's evaluation indicates a serious medical need for dentures, a referral will be made to a denture provider selected by CCUSO. NOTE: Patients without a serious medical need for dentures may elect to receive dentures but will be responsible for all associated costs that must be ...

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