Case 1:20-cv-03151-JPH-MPB Document 32 Filed 06/09/21 Page 1 of 7 PageID #: 333
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`INDIANAPOLIS DIVISION
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`Plaintiff,
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`No. 1:20-cv-03151-JPH-MPB
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`COREY JAMES SMITH,
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`REAGLE Warden; at Pendleton ISR, et al.
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`v.
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`Defendants.
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`ORDER GRANTING MOTION TO DISREGARD FILING,
`GRANTING MOTION FOR LEAVE TO FILE AMENDED COMPLAINT, SCREENING
`AMENDED COMPLAINT, AND DIRECTING SERVICE OF PROCESS
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`On April 6, 2021, the plaintiff filed a motion for leave to file an amended complaint with
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`an attached proposed amended complaint. Dkt. 20. Before the Court screened the amended
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`complaint, the plaintiff filed another amended complaint on May 6, 2021. Dkt. 27. On May 11,
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`2021, the plaintiff filed a motion to correct error and disregard the amended complaint filed on
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`May 6, 2021. That motion, dkt. [28], is granted. The amended complaint filed on May 6, 2021, is
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`disregarded and of no effect.
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`The plaintiff's motion for leave to amend his complaint, dkt. [20], is granted. The clerk is
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`directed to redocket the proposed amended complaint at dkt. 20-1 as the Amended Complaint
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`which is now the operative complaint in this action. The Court now screens the amended complaint
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`and makes the following rulings.
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`I.
`The Amended Complaint
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`The Court previously screened the plaintiff's original complaint and allowed Fourteenth
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`Amendment claims to proceed against four defendants at Pendleton Correctional Facility (PCF)
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`based on the plaintiff's allegations that he was confined in long-term segregation without due
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`Case 1:20-cv-03151-JPH-MPB Document 32 Filed 06/09/21 Page 2 of 7 PageID #: 334
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`process. Dkt. 15. The amended complaint's caption names 34 defendants: the four current PCF
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`defendants, thirteen additional employees of PCF, five employees of Indiana Department of
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`Correction (IDOC) Central Office, five employees of Wabash Valley Correctional Facility
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`(WVCF), four employees of Westville Control Unit (WCU), and three employees of Indiana State
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`Prison (ISP). The amended complaint also names two additional defendants who were not included
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`in the caption: WVCF Warden Frank Vanihel, and PCF Unit Team Manager Grayhouse.
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`The following allegations are set forth in the plaintiff's amended complaint. The plaintiff
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`was placed in restrictive housing in June 2013 while he was incarcerated at ISP. His placement in
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`restrictive housing was in retaliation for his refusal to intervene in ongoing gang hostilities in the
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`prison. Within days, he was transferred to WCU where he stayed for two years before being
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`transferred to WVCF's Secured Housing Unit. After approximately six months, the plaintiff was
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`again transferred, this time to PCF, where he remained in segregation through the filing of his
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`original complaint.
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`The conditions of segregation at PCF were harsh. Inmates often set fires to get attention
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`and the ventilation system was inadequate to clear the smoke in the air. Excessive noise interfered
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`with the plaintiff's ability to think and sleep and damaged his hearing. The unit is infested with
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`mice, rats, cockroaches, pigeons, and bugs. The unit is also filthy and smells of urine and human
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`feces. It is extremely cold in the winter and too hot in the summer. The plaintiff was at risk of
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`assault by other inmates. He was denied an opportunity for recreation and out-of-cell exercise for
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`thirteen months.
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`The plaintiff was denied transfer to general population and access to the facility's step-
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`down program even though he had previously completed four phases of the program at a previous
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`facility. In six years of segregation at PCF, he received only one 30-day review which was a sham.
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`Case 1:20-cv-03151-JPH-MPB Document 32 Filed 06/09/21 Page 3 of 7 PageID #: 335
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`Defendants Carter, Lemmon, and Basinger were the IDOC Commissioners during the
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`plaintiff's time in PCF's segregation unit. Defendant Hendrix was the IDOC Director of
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`Classification during that time. Defendants Reagle and Zantecky were Wardens of PCF and
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`defendant Dixon was the Supervisor of Classification at PCF during that time. The plaintiff
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`contends that these defendants maintained unconstitutional policies and practices that allowed the
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`plaintiff to remain in segregation at PCF without periodic reviews.
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`Defendant John Stafford was the Unit Team Director of the PCF segregation unit and
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`defendant Ashe was the Program Director. Defendants Brown, McQuire, Jones, Vickov,
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`Grayhouse, Evans, Shepard, Ross, Amburn, Cook, Martin, and Arnold were case managers and
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`counselors at PCF while the plaintiff was denied 30-day and 90-day reviews.
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`On February 12, 2021, the plaintiff was transferred back to WVCF and placed in the
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`secured housing unit on department-wide administrative segregation. Conditions at WVCF are
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`comparable to those the plaintiff experienced at PCF. The plaintiff has suffered severe
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`psychological harm as a result of his years in segregation. He seeks compensatory and punitive
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`damages.
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`II.
`Discussion of Claims
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`Applying the screening standard to the factual allegations in the amended complaint,
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`certain claims are dismissed while other claims shall proceed as submitted.
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`First, all claims against defendants employed at ISP and WCU, as well as the plaintiff's
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`claims arising from his first stay at WVCF in 2015, are barred by the statute of limitations. Suits
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`under § 1983 use the statute of limitations and tolling rules that states employ for personal-injury
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`claims. In Indiana, the applicable statute of limitations period is two years. See Richards v.
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`Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012); Ind. Code § 34–11–2–4. The original complaint in
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`Case 1:20-cv-03151-JPH-MPB Document 32 Filed 06/09/21 Page 4 of 7 PageID #: 336
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`this action was signed on November 15, 2020, several years after the expiration of Indiana's 2-year
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`statute of limitations for those claims.
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`The plaintiff argues that the older claims are not barred due to the doctrine of continuing
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`harm. Dkt. 20-1 at 32. As the Seventh Circuit recently explained,
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`The continuing violation doctrine ... is aimed at ensuring that illegal conduct is
`punished by preventing a defendant from invoking the earliest manifestation of its
`wrongdoing as a means of running out the limitations clock on a course of
`misconduct that persisted over time; the doctrine serves that end by treating the
`defendant's misconduct as a continuing wrong and deeming an action timely so
`long as the last act evidencing a defendant's violation falls within the limitations
`period. ... Thus, where the violation at issue can be characterized as a continuing
`wrong, the limitations period begins to run not when an action on the violation
`could first be brought, but when the course of illegal conduct is complete.
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`United States v. Spectrum Brands, 924 F.3d 337, 350 (7th Cir. 2019) (internal citations omitted).
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`"A violation is continuing where it would be unreasonable to require or even permit [a prisoner]
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`to sue separately over every incident of the defendant's unlawful conduct." Turley v. Rednour, 729
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`F.3d 645, 651 (7th Cir. 2013). For a continuing harm, the statute of limitations begins to run on
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`the last occurrence of the harm. Id. Thus, the plaintiff's claims against the ISP defendants accrued
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`by no later than June 2013, when he was transferred from ISP to WCU. The ISP defendants could
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`no longer be responsible for any harm to the plaintiff after he was transferred away from their
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`facility. See Wilson v. Wexford Health Sources, Inc., 932 F.3d 513, 517–18 (7th Cir. 2019).
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`Similarly, his claims against the WCU defendants and his claims based on his time in WVCF
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`during 2015 accrued no later than the unspecified dates in 2015 when he was transferred to WVCF
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`and later to PCF.
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`"[D]ismissal under Rule 12(b)(6) on the basis of a limitations defense may be appropriate
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`when the plaintiff effectively pleads [himself] out of court by alleging facts that are sufficient to
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`establish the defense." Hollander v. Brown, 457 F.3d 688, 691 n.1 (7th Cir. 2006) (internal
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`4
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`Case 1:20-cv-03151-JPH-MPB Document 32 Filed 06/09/21 Page 5 of 7 PageID #: 337
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`citations omitted); see also Koch v. Gregory, 536 Fed. Appx. 659 (7th Cir. 2013) (stating that when
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`the language of the complaint plainly shows that the statute of limitations bars the suit, dismissal
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`under § 1915A is appropriate); Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690
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`(7th Cir. 2012). That is the case here. Accordingly, claims against ISP employees Neal, William
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`Wilson, Debbie Abrams, and WCU employees Mark Levenhagen, Lowry, Sally Nowatzke,
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`D. Barnes, are dismissed. The plaintiff's claims arising from his 2015 stay in segregation at WVCF
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`are also dismissed.
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`Similarly, the plaintiff's claims against Former IDOC Commissioners Bruce Lemmon and
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`Edwin Buss, and Former Acting Commissioner Basinger, are dismissed. The Court takes judicial
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`notice of the IDOC website which reflects that current IDOC Commissioner Robert E. Carter Jr.
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`was appointed to his position on January 17, 2017. See https://www.in.gov/idoc/about-
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`idoc/commissioners-office/. Thus, any claims the plaintiff may have against former commissioners
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`accrued no later than January 17, 2017, more than two years before he filed his original complaint.
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`See Wilson, 932 F.3d at 518 ("[I]f a defendant leaves the institution altogether, his involvement in
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`the alleged wrong is over. The date of the defendant's departure thus marks the last possible time
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`when the claim might have accrued.").
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`The plaintiff's Eighth Amendment and Fourteenth Amendment claims shall proceed
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`pursuant to 42 U.S.C. § 1983 against the IDOC Central Office, PCF, and WVCF defendants:
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`Reagle, A. Ross, Paula Dixon, C. Conyer, Robert E. Carter, Jr., Richard Brown, Jim Hendrix,
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`Zantecky, Frank Vanihel, Grayhouse, Brown, John Stafford, McQuire, Matt Leohr, Charles
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`Dugan, Jerry Snyder, Thompson, Arnold, Jones, Cook, Amburn, Evans, Martin, Shepard, Vickov,
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`and Ashe. This summary of remaining claims includes all the viable claims identified by the Court.
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`All other claims have been dismissed. If the plaintiff believes that additional claims were alleged
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`Case 1:20-cv-03151-JPH-MPB Document 32 Filed 06/09/21 Page 6 of 7 PageID #: 338
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`in the complaint, but not identified by the Court, he shall have through June 28, 2021, in which
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`to identify those claims.
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`IV.
`Conclusion and Service of Process
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`The clerk is directed pursuant to Fed. R. Civ. P. 4(c)(3) to issue process electronically to
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`defendants Robert E. Carter, Jr., Richard Brown, Jim Hendrix, Zantecky, Frank Vanihel,
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`Grayhouse, Brown, John Stafford, McQuire, Matt Leohr, Charles Dugan, Jerry Snyder, Thompson,
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`Arnold, Jones, Cook, Amburn, Evans, Martin, Shepard, Vickov, and Ashe in the manner specified
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`by Fed. R. Civ. P. 4(d). Process shall consist of the amended complaint, applicable forms (Notice
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`of Lawsuit and Request for Waiver of Service of Summons and Waiver of Service of Summons),
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`and this Order.
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`The clerk is directed to add Robert E. Carter, Jr., Richard Brown, Jim Hendrix, Zantecky,
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`Frank Vanihel, Grayhouse, Brown, John Stafford, McQuire, Matt Leohr, Charles Dugan, Jerry
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`Snyder, Thompson, Arnold, Jones, Cook, Amburn, Evans, Martin, Shepard, Vickov, and Ashe as
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`defendants on the docket.
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`Defendants Reagle, A. Ross, Paula Dixon, and C. Conyer have already appeared in this
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`action. They shall have 21 days in which to answer or otherwise respond to the amended
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`complaint.
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`SO ORDERED.
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`6
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`Date: 6/9/2021
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`Case 1:20-cv-03151-JPH-MPB Document 32 Filed 06/09/21 Page 7 of 7 PageID #: 339
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`Distribution:
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`COREY JAMES SMITH
`197539
`PENDLETON - CF
`PENDLETON CORRECTIONAL FACILITY
`Inmate Mail/Parcels
`4490 West Reformatory Road
`PENDLETON, IN 46064
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`Electronic Service to:
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`Robert E. Carter, Jr.
`Richard Brown
`Jim Hendrix
`(All at IDOC Central Office)
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`Zantecky
`Grayhouse
`Brown
`John Stafford
`McQuire
`Arnold
`Jones
`Cook
`Amburn
`Evans
`Martin
`Shepard
`Vickov
`Ashe
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`Frank Vanihel
`Matt Leohr
`Charles Dugan
`Jerry Snyder
`Thompson
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`(All at Wabash Valley Correctional Facility)
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`(All at Pendleton Correctional Facility)
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`7
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