United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY
Leonard T. Strand, Chief Judge
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).
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
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.
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.
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.” Jerry Foxhoven is the Director of the Iowa
Department of Human Services, which operates
CCUSO. 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.
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
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
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 ...