Case 1:23-cv-02034-SEB-KMB Document 9 Filed 03/28/24 Page 1 of 7 PageID #: 33
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`INDIANAPOLIS DIVISION
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`MICHAEL ORR,
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`Plaintiff,
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`v.
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`CENTURION HEALTH, et al.,
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`Defendants.
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`No. 1:23-cv-02034-SEB-KMB
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`Order Dismissing Complaint and Directing Filing of Amended Complaint
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`Plaintiff Michael Orr is a prisoner currently incarcerated at Wabash Valley Correctional
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`Facility. He has filed this civil action alleging that Defendants were deliberately indifferent to his
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`serious mental health needs. Because Mr. Orr is incarcerated, this Court must screen the complaint
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`before service on Defendants. 28 U.S.C. § 1915A(a), (c).
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`I. Screening Standard
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`When screening a complaint, the Court must dismiss any portion that is frivolous or
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`malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is
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`immune from such relief. 28 U.S.C. § 1915A(b). To determine whether a complaint states a claim,
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`the Court applies the same standard as when addressing a motion to dismiss under Federal Rule of
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`Civil Procedure 12(b)(6). See Schillinger v. Kiley, 954 F.3d 990, 993 (7th Cir. 2020). Under that
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`standard, a complaint must include "enough facts to state a claim to relief that is plausible on its
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`face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when
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`the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
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`Court construes pro se complaints liberally and holds them to a "less stringent standard than formal
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`pleadings drafted by lawyers." Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017).
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`II. The Complaint
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`Mr. Orr names 14 defendants in the complaint: (1) Indiana Department of Correction
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`(IDOC) Commissioner Christina Reagle; (2) former IDOC Commissioner Robert Carter;
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`(3) Executive Director of Mental Health Services Dr. Deanna Dwenger; (4) Warden Frank Vanihel;
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`(5) Deputy Warden Kevin Gilmore; (6) Captain Randy Vanvleet; (7) Lieutenant Shawn Holcomb;
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`(8) Classification Supervisor Mathew Leohr; (9) Case Worker Randall Purcell; (10) Unit Team
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`Manager Jerry Snyder; (11) Centurion Health of Indiana, LLC; (12) Director of Psychological
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`Health Nikki Tafoya; (13) Psychologist Dr. Mary Sims; and (14) Mental Health Counselor Sarah
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`Clarke. Dkt. 2 at 1−2.
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`Mr. Orr alleges that he suffers from posttraumatic stress disorder, depression, generalized
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`anxiety disorder, anti-social personality disorder, narcissistic personality disorder, and major
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`depressive disorder. Id. at 3. He has been assigned to segregated housing since August 2021. Id.
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`In September 2021, Mr. Orr was on hunger strike protocol, so nursing staff provided
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`wellness checks every 24 hours. Id. at 3−4. On September 13, 2021, Ms. Clarke visited Mr. Orr's
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`cell and told him that hunger strike would not change his mental health code or housing situation
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`because it is a behavior choice. Id. at 4. Mr. Orr reports that he had lost between 30 and 40 pounds
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`from August 24, 2021, through September 13, 2021. Id. He told Ms. Clarke that he was not using
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`a hunger strike to protest his housing situation. Id.
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`On September 21, 2021, Ms. Clarke told Mr. Orr not to "write her questions like a lawsuit"
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`on his healthcare request forms because a hunger strike will not get him seen by a psychologist.
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`Id. Mr. Orr reported that he was feeling weak. Id. Later that day, Mr. Orr woke up with chest pains.
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`Id. Nursing staff checked his vitals and called for an ambulance. Id. at 5. Mr. Orr was admitted to
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`a local hospital for starvation ketosis, dehydration, and liver damage. Id.
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`In the hospital, Mr. Orr received IV fluids, medication, and a few meals. Id. at 6. He was
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`released on September 23, 2021. Id.
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`On September 25, 2021, after declining several meals, Mr. Orr was admitted to the prison
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`infirmary for starvation ketosis and dehydration. Id.
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`On September 27, 2021, Dr. Sims diagnosed Mr. Orr with an unspecified serious mental
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`illness and stated that Mr. Orr could not be housed in a specialized mental health unit or any other
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`housing except for segregated housing because Mr. Orr was hunger striking. Id.
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`On September 30, 2021, Mr. Orr was discharged from the infirmary after receiving IV
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`fluids, eating a meal, and receiving prescriptions for psychotropic medications. Id. at 7.
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`Since September 30, 2021, Mr. Orr has been housed in segregated housing. Id. He is
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`confined to his cell 24 hours per day, except for indoor or outdoor recreation time. Id. He has a
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`cell with a bed, blanket, sink, toilet, desk, and chair. Id. The cell is open to the housing range. Id.
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`He receives three meals per day. Id. Because he is indigent, Mr. Orr cannot order toothpaste,
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`deodorant, nail clippers, toothbrushes, shampoo, lotion, thermal clothing, or gloves. Id. He has
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`been on hunger strike "nearly 15 times." Id. He faces "a void of meaningful or productive
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`activities." Id. at 8.
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`Mr. Orr contends that all Defendants violated his Eighth Amendment rights and that
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`Defendants Centurion, Commissioner Reagle, and Warden Vanihel violated the Americans with
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`Disabilities Act (ADA) and Rehabilitation Act (RA). Id. at 8−10. He seeks damages and injunctive
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`relief. Id. at 10−11.
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`III. Dismissal of Complaint
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`Based on the screening standard to the facts alleged in the complaint, the complaint must
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`be dismissed for failure to state a claim upon which relief may be granted.
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`A.
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`Claims Based on Ongoing Conditions
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`The focus of Mr. Orr's complaint is a series of events that occurred in September 2021.
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`However, he also makes some allegations about his conditions of confinement since that time. See
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`dkt. 2 at 7, 9−10. He contends that the conditions of confinement in segregated housing have
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`denied him "the minimum human necessities to meaningful contacts and some level of opportunity
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`for sensory enrichment." Id. at 9−10.
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`All Eighth Amendment claims based on Mr. Orr's conditions of confinement since
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`September 2021 are DISMISSED for failure to state a claim upon which relief may be granted.
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`To succeed on an Eighth Amendment claim based on the conditions of segregated housing, Mr. Orr
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`must demonstrate "some egregious deprivation" beyond mere isolation that crated an excessive
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`risk to his health and safety. Isby v. Brown, 856 F.3d 508, 521 (7th Cir. 2017) (no Eighth
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`Amendment violation based on 10-year commitment to solitary confinement). Mr. Orr has not
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`alleged any such conditions.
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`To the extent Mr. Orr seeks to assert claims under the Rehabilitation Act and Americans
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`with Disabilities Act based on post-September 2021 events, all such claims are DISMISSED for
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`failure to state a claim upon which relief may be granted. The Rehabilitation Act provides, in
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`relevant part, that "no otherwise qualified individual with a disability in the United States . . . shall,
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`solely by reason of her or his disability, be excluded from the participation in, be denied the benefits
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`of, or be subjected to discrimination under any program or activity receiving Federal financial
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`assistance . . ." 29 U.S.C. § 794. Similarly, the Americans with Disabilities Act provides, in relevant
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`part, that "no qualified individual with a disability shall, by reason of such disability, be excluded
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`from participation in or be denied the benefits of the services, programs, or activities of a public
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`entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Mr. Orr has not
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`identified any act of discrimination or any service he has been denied based on any disability.
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`B.
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`Claims Based on September 2021 Events
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`All claims based on events that occurred in September 2021 are DISMISSED as untimely.
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`Untimeliness is an affirmative defense, but a claim may be dismissed sua sponte if
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`"'the existence of a valid affirmative defense is so plain from the face of the complaint that the suit
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`can be regarded as frivolous.'" Muhammad–Ali v. Final Call, Inc., 832 F.3d 755, 763
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`(7th Cir. 2016) (quoting Walker v. Thompson, 288 F.3d 1005, 1009–10 (7th Cir. 2002)); see also
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`Koch v. Gregory, 536 F. App'x 659, 660 (7th Cir. 2013) (when complaint's allegations plainly show
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`it is untimely, dismissal under § 1915A is appropriate).
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`"[I]n § 1983 actions, federal courts apply the statute of limitations governing personal
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`injury actions in the state where the injury took place. In Indiana, such claims must be brought
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`within two years." Serino v. Hensley, 735 F.3d 588, 590 (7th Cir. 2013) (citation omitted). This is
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`also true for ADA and Rehabilitation Act claims. See Rutledge v. Ill. Dep't of Human Servs.,
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`785 F.3d 258 (7th Cir. 2015) (applying state personal-injury statute of limitations to Rehabilitation
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`Act claims); Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547 (7th Cir. 1996) (same for ADA
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`claims). And a claim accrues when "the plaintiff knows or has reason to know of the injury which
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`is the basis of his action." Serino, 735 F.3d at 591.
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`Here, Mr. Orr alleges a discrete set of events ending on September 30, 2021, when he was
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`discharged from the prison infirmary. See dkt. 2 at 3−7. The statute of limitations for any claims
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`based on these events therefore began to run on September 30, 2021, the date of his release, when
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`the alleged wrongdoing ended. Manuel v. City of Joliet, Ill., 903 F.3d 667, 669 (7th Cir. 2018)
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`("When a wrong is ongoing rather than discrete, the period of limitations does not commence until
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`the wrong ends. Notice that we speak of a continuing wrong, not of continuing harm; once the
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`wrong ends, the claim accrues even if that wrong has caused a lingering injury." (citation omitted;
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`emphasis retained)).
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`Mr. Orr's deadline to file a timely complaint based on these allegations was thus
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`October 2, 2023—the first business day after Saturday, September 30, 2023. See Fed. R. Civ. P.
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`6(a)(1)(C). But he did not file this suit until November 8, 2023. Dkt. 1. All claims based on
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`September 2021 events are therefore DISMISSED as untimely.
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`IV. Opportunity to File an Amended Complaint
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`Because the Court has been unable to identify a viable claim for relief, the complaint is
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`subject to dismissal. The Court will not yet dismiss the entire action. Instead, Mr. Orr shall have
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`through April 12, 2024, to file an amended complaint. See Tate v. SCR Med. Transp., 809 F.3d
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`343, 346 (7th Cir. 2015) ("We've often said that before dismissing a case under 28 U.S.C.
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`§ 1915(e)(2)(B)(ii) a judge should give the litigant, especially a pro se litigant, an opportunity to
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`amend his complaint.").
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`The amended complaint must (a) contain a short and plain statement of the claim showing
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`that the plaintiff is entitled to relief, which is sufficient to provide the defendant with fair notice of
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`the claim and its basis; (b) include a demand for the relief sought; and (c) identify what injury he
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`claims to have suffered and what persons are responsible for each such injury. In organizing his
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`complaint, the plaintiff may benefit from utilizing the Court's complaint form. The clerk is
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`directed to include a copy of the prisoner civil rights complaint form along with the plaintiff's
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`copy of this Order.
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`Any amended complaint should have the proper case number, 1:23-cv-1830, and the words
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`"Amended Complaint" on the first page. The amended complaint will completely replace the
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`original. See Beal v. Beller, 847 F.3d 897, 901 (7th Cir. 2017) ("For pleading purposes, once an
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`amended complaint is filed, the original complaint drops out of the picture."). Therefore, it must
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`set out every defendant, claim, and factual allegation the plaintiff wishes to pursue in this action.
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`If Mr. Orr files an amended complaint, it will be screened pursuant to 28 U.S.C.
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`§ 1915A(b). If no amended complaint is filed by the above deadline, this action will be dismissed
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`without further notice or opportunity to show cause.
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`IT IS SO ORDERED.
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`Date: _______________
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`Distribution:
`Michael Orr
`133175
`WABASH VALLEY - CF
`Wabash Valley Correctional Facility
`6908 S. Old US Hwy 41
`CARLISLE, IN 47838
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`7
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` _______________________________
` SARAH EVANS BARKER, JUDGE
` United States District Court
` Southern District of Indiana
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`3/28/2024
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