Case 2:19-cv-00257-JPH-MJD Document 82 Filed 01/21/21 Page 1 of 10 PageID #: 473
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`v.
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`JAMES A. SMITH,
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`RICHARD BROWN,
`FRANK LITTLEJOHN,
`JERRY SNYDER,
`BEVERLY GILMORE,
`CHARLES DUGAN,
`JERRICHA MEEKS,
`DAWN AMMERMAN,
`JOSHUA COLLINS,
`RANDALL PURCELL,
`BRUCE LEMMON,
`ROBERT CARTER,
`JACK HENDRIX,
`MICHAEL OSBURN,
`MATT LEOHR,
`ANDREA MASON,
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF INDIANA
`TERRE HAUTE DIVISION
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`No. 2:19-cv-00257-JPH-MJD
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`Plaintiff,
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`Defendants.
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`ENTRY ON DEFENDANTS' PARTIAL MOTION TO DISMISS
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`I. Background
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`Plaintiff James A. Smith, an Indiana prisoner, filed a pro se complaint under 42
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`U.S.C. § 1983 alleging that Defendants violated his Eighth and Fourteenth Amendment rights
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`when they placed and kept him in administrative segregation on the Secure Housing Unit (SHU)
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`at Wabash Valley Correctional Facility (Wabash Valley). Dkt. 1. After counsel appeared on behalf
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`of Mr. Smith, he filed a 63-page amended complaint. Dkt. 41.
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`The Court concisely summarizes the allegations in amended complaint as follows. Mr.
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`Smith was held in solitary confinement from March 24, 2011 until February 6, 2019. Dkt. 41, ¶ 1.
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`1
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`On March 10, 2015, he was released from solitary confinement and placed in F housing unit but
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`was returned after less than 24 hours because he was assaulted by another inmate. Dkt. 41, ¶¶ 172,
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`194. This allegedly violated Mr. Smith's Fourteenth Amendment due process rights because he
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`was confined in solitary confinement without meaningful review of that placement. Id. at 62. The
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`conditions of his confinement also allegedly violated the Eighth Amendment. Id. He further alleges
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`violations of his Fourth and Fifth Amendment rights and brings state law tort claims. Id. at 62-63.
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`The defendants have filed a partial motion to dismiss, alleging that any claims based on
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`alleged conduct that took place between March 24, 2011 and March 10, 2015, should be dismissed
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`as barred by the applicable statute of limitations. They also argue that this includes all claims
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`against Beverly Gilmore.1
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`II. Legal Standard
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` The defendants seek relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
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`but "the appropriate vehicle for resolving an affirmative defense is a motion for judgment on the
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`pleadings under Rule 12(c), not a Rule 12(b)(6) motion." Gunn v. Cont'l Cas. Co., 968 F.3d 802,
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`806 (7th Cir. 2020); see also Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th
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`Cir. 2012) (stating, "we have repeatedly cautioned that the proper heading for such motions is Rule
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`12(c), since an affirmative defense is external to the complaint."); cf. Brooks v. Ross, 578 F.3d
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`574, 579 (7th Cir. 2009) (example of pragmatic exception where complaint unambiguously set
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`forth dates establishing statute-of-limitations defense). "Observing the distinction is necessary to
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`allocate correctly the burdens of pleading and proof." H.A.L. N.Y. Holdings, LLC v. Guinan, 958
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`F.3d 627, 632 (7th Cir. 2020). Accordingly, the Court construes the defendants' motion as one
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`under Rule 12(c), and the defendants bear "the burden of showing that the allegations of the
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`1 Defendants also seek the dismissal of claims against John Doe defendants, but that issue is moot because the John
`Doe claims were dismissed in the screening entry of April 21, 2020. Dkt. [40].
`2
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`complaint and an answer showed that an affirmative defense conclusively" defeats Mr. Smith's
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`older claims as a matter of law. Gunn, 968 F.3d at 807.
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`In considering the motion, Mr. Smith's factual allegations are accepted as true and given
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`the benefit of all reasonable inferences. Orgone Capital III, LLC v. Daubenspeck, 912 F.3d 1039,
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`1044 (7th Cir. 2019).
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`III. Discussion
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`Mr. Smith brings both federal constitutional claims and state law tort claims.
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`A.
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`Federal Claims
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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); see also
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`Indiana Code section 34-11-2-4. Thus, the applicable statute of limitations for the constitutional
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`claims is two years.
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`Mr. Smith alleges that he was kept in solitary confinement from March 24, 2011 until
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`February 9, 2019, with about a one-day break on March 10, 2015. The defendants argue that
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`because of this break, there are two distinct periods of time at issue. The first period of
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`confinement in solitary ended on March 10, 2015, and a new period of confinement began on
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`March 11, 2015. Mr. Smith filed his complaint on June 3, 2019, so June 3, 2017 was two years
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`prior to the filing of the complaint. The defendants argue that any claims based on Mr. Smith's
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`confinement through March 10, 2015 are time barred.2
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`2 To the extent the defendants rely on a footnote in an Order in Isby-Israel v. Wynn, et al.,
`No. 2:12-cv-001116-JMS-MJD, dkt. 274 at 4, n. 4, in which the Court said it would limit most of
`its discussion to the review procedures that were in place in the two-year period preceding the
`filing of the suit in light of the statute of limitations, that footnote is not controlling because the
`3
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`Mr. Smith responds that "[t]here is significant doubt as to whether Smith's short release
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`from the SHU separates his claim into two for purposes of the statute of limitations." Dkt. 58 at 7.
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`He urges the Court to resolve this "doubt" in his favor. Id. Mr. Smith also argues that the doctrines
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`of continuing wrong, incapacitation, and concealment should toll his claims. The Court first
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`considers whether under the continuing violation doctrine applies.
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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.
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`Mr. Smith was placed in solitary confinement on March 24, 2011. Dkt. 41, ¶¶ 169, 181.
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`On February 24, 2015, Mr. Smith was approved to be released from solitary confinement and
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`transferred to another facility through the ACT Program. Id., ¶ 193. On March 10, 2015, he was
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`released to the F housing unit, where in less than an hour he was assaulted by another inmate. Id.,
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`¶¶ 194, 199. Because both offenders continued to fight each other after prison officers ordered
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`them to stop, they were sprayed with mace to break up the fight. Id., ¶ 195.
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`issue of whether the continuing violation doctrine applied to Mr. Isby's case was not argued to the
`Court.
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`4
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`Prison reports indicate that when Mr. Smith arrived at the F housing unit, he announced
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`that he was a member of a gang, MLD [Maniac Latin Disciples]. Id., ¶ 199. The inmate who
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`attacked Mr. Smith was reported to be a member of a different gang, the Aryan Brotherhood, which
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`explained the immediate assault. Id., ¶¶ 199, 205. Mr. Smith was found guilty of assault/battery
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`and sanctioned to less than 15 days in disciplinary segregation. Id., ¶ 198; dkt. 1-1 at 4. On March
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`25, 2015, a classification hearing was conducted, and it was determined that Mr. Smith should
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`remain in solitary confinement. Id., ¶¶ 201, 202; dkt. 1-1 at 5.
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`As noted, there were two periods of confinement in solitary confinement: from March 24,
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`2011, until March 10, 2015, and then again later on March 10, 2015, until February 9, 2019. The
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`continuing violation doctrine deems "an action timely so long as the last act evidencing a
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`defendant's violation falls within the limitations period." Spectrum Brands, 924 F.3d at 350
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`("where the violation at issue can be characterized as a continuing wrong, the limitations period
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`begins to run not when an action on the violation could first be brought, but when the course of
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`illegal conduct is complete."). In Turley, the Seventh Circuit concluded that "lockdowns that
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`cumulate to much longer periods, with only short breaks, may be" violations of the Eighth
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`Amendment. Turley, 729 F.3d at 654 (Easterbrook, C. J., concurring) ("This case thus is within
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`the scope of the cumulative-violation doctrine…"). The court found that a "cumulative approach
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`to the continuing violation doctrine" applied to a series of improper lockdowns with short breaks
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`such that the "statute of limitations began running from the last date of lockdown, or last day
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`confined to the tiny cell…." Id. at 651.
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`Here, Mr. Smith was held in administrative segregation from March 24, 2011 until
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`February 6, 2019. Dkt. 41, ¶ 1. He alleges that during this time he did not receive periodic
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`meaningful review of his placement. Id. The crux of the alleged constitutional violations isn't the
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`5
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`reasons why he was placed in administrative segregation first in 2011 and again in 2015 but
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`whether he received periodic meaningful review of his placement. The Court finds that "the
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`violation at issue can be characterized as a continuing wrong" so "the limitations period begins to
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`run not when an action on the violation could first be brought, but when the course of illegal
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`conduct is complete." Spectrum Brands, 924 F.3d at 350. See also Turley, 729 F.3d at 650-51
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`(applying continuing violation theory to multiple, separate periods of lockdown totaling 534 days
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`based "on the cumulative impact of numerous imposed lockdowns."). Therefore, the federal
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`claims based on the first period of solitary confinement, from March 24, 2011, until March 10,
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`2015, are not barred by the statute of limitations.
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`B. Claims Against Beverly Gilmore
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`The amended complaint alleges that "Beverly Gilmore was a casework manager in the
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`administrative restrictive housing unit at Wabash Valley from 2008 until July 2014." Dkt. 41, ¶ 72.
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`As noted, this action was filed on June 23, 2019. Dkt. 1. Ms. Gilmore was not a named defendant
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`until the amended complaint was filed on April 22, 2020. Dkt. 41. Even under the continuing
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`violation theory, "if a defendant leaves the institution altogether, his involvement in the alleged
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`wrong is over. The date of the defendant's departure thus marks the last possible time when the
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`claim might have accrued." Wilson v. Wexford Health Sources, Inc., 932 F.3d 513, 518 (7th Cir.
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`2019)
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`"Because the accrual date is no later than [Ms. Gilmore's] last day of work" at Wabash
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`Valley, id. at 518, all federal claims against her are time-barred.
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`State Law Claims
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`C.
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`The amended complaint asserts various state law claims, including intentional infliction of
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`emotional distress, negligence, negligent training, false imprisonment, confinement, and
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`6
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`conspiracy. Dkt. 41, ¶¶ 6-12. The defendants argue that the two-year personal injury statute of
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`limitations applies to these state law claims. Ind. Code § 34-11-2-4 ("An action for: (1) injury to
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`person or character; … must be commenced within two (2) years after the cause of action
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`accrues.").
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`Mr. Smith contends that a five-year statute of limitation applies to his state law tort claims,
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`relying on Indiana Code § 34-11-2-6. That statute provides:
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`An action against:
`(A) a sheriff;
`(B) another public officer; or
`(C) the officer and the officer's sureties on a public bond;
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`growing out of a liability incurred by doing an act in an official capacity, or by the
`omission of an official duty, must be commenced within five (5) years after the
`cause of action accrues. However, an action may be commenced against the officer
`or the officer's legal representatives, for money collected in an official capacity and
`not paid over, at any time within six (6) years after the cause of action accrues.
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`The defendants respond that they are employees of the Indiana Department of Correction
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`Id.
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`but are not "public officers" within the meaning of Indiana Code § 34-11-2-6. The Indiana Court
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`of Appeals has defined a public officer as an individual that "holds a position for which duties are
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`prescribed by law to serve a public purpose." Barrow v. City of Jeffersonville, 973 N.E.2d 1199,
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`1204 (Ind. Ct. App. 2012). The Barrow court found that the City Director of Planning and Zoning
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`and City Building Commissioner were public officials. Id.
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`The Seventh Circuit Court of Appeals did not resolve whether the five-year statute of
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`limitations could be applied to tort claims brought against police officers in Howlett v. Hack, 794
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`F.3d 721, 726 (7th Cir. 2015), but it acknowledged that "Indiana defines a public officer as an
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`'individual [who] holds a position for which duties are prescribed by law to serve a public purpose,'
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`and the taking of an oath, while not required, 'is a strong indicator' of a person's status as a public
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`officer." Id. (quoting Barrow, 973 N.E.2d at 1204). The Howlett decision stated that "[t]he
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`argument that the public-officer statute applies is thus not a frivolous one." Id. ("Rather, § 34-11-
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`2-6 might have been meant to create a uniform statute of limitations for all suits—including those
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`for personal injury claims—when those suits are filed against public officers.").
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`Mr. Smith argues that Indiana Code section 11-10-1-7 renders the defendants public
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`officers because it states, "the department shall review an offender so segregated at least once
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`every thirty (30) days to determine whether the reason for segregation still exists." Id. The Court
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`does not find this rationale persuasive because the statute is directed to "the department" of
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`Correction, not to any specific office or officer.
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`The defendants further contend that they cannot be considered "public officers" for
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`purposes of the five-year limitations period because they do not serve "out and openly among the
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`public," dkt. 60 at 3, but that arguably is not true for all the defendants, including Commissioners
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`Lemmon and Carter, Warden Brown, Assistant Wardens Hendrix and Littlejohn, and perhaps
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`Southern Regional Director Osburn. Neither party discusses the particular positions each
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`defendant held at the relevant times in relation to the public officer statute. Evidence may be
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`required to determine which defendants, if any, are public officers.
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`Mr. Smith further argues that his incapacitation and the defendants' fraudulent concealment
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`toll the statute of limitations on the state law claims. "District courts should not allow motions
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`for judgment on the pleadings to deprive the non-moving party of the opportunity to make its
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`case." Federated Mut. Ins. Co. v. Coyle Mech. Supply Inc., No. 20-1207, 2020 WL 7585945, at *3
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`(7th Cir. Dec. 22, 2020).
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`Although the motion may be helpful in disposing of cases in which there is no
`substantive dispute that warrants the litigants and the court proceeding further,
`thereby easing crowded trial dockets in the federal district courts, hasty or
`imprudent use of this summary procedure by the courts violates the policy in favor
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`of ensuring to each litigant a full and fair hearing on the merits of his or her claim
`or defense.
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`Id. (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1368
`(3d ed. 2002)).
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`Considering the various tolling doctrines presented by Mr. Smith, the defendants have not
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`met their burden of showing that the statute of limitations conclusively defeats Mr. Smith's state
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`law claims against all defendants. The motion for judgment on the pleadings is denied without
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`prejudice as to the state law claims.
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`IV. Conclusion
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`For the foregoing reasons, the defendants' partial motion to dismiss, which the Court
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`construes as a motion for partial judgment on the pleadings under Federal Rule 12(c), dkt. [49], is
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`granted in part and denied in part. The federal claims brought against Beverly Gilmore are
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`dismissed with prejudice. The motion for partial judgment as to the other federal claims is denied
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`and as to the state law claims is denied without prejudice.
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`SO ORDERED.
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`9
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`Date: 1/21/2021
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`Distribution:
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`All electronically registered counsel
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`10
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